State vs Adambhai on 1 June, 2010

[Cites 85, Cited by 0]

Gujarat High Court

State vs Adambhai on 1 June, 2010

1. This group of matters arise from the judgment and order dated 1st July 2006 passed by the learned Special Judge, Ahmedabad in POTA Case No. 16 of 2003. A reference has been made under Section 366 CrPC for confirmation of the death sentence imposed upon the accused no.2 - Adambhai Sulemanbhai Ajmeri; accused no.4 - Abdul Kayum @ Muftisab Mohammedbhai Mansuri and accused no.6 - Shaanmiya @ Chandkhan Sajjadkhan. The Appeals have been preferred by the accused against the conviction recorded against them and the sentence imposed.

2. The order of acquittal of the accused of various charges is not challenged by the State.

ACCUSED NO 1 : ALTAFHUSSAIN AKBARHUSSAIN MALEK has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED For the offence punishable under Section 22 (1) (a) of the POTA Rigorous Imprisonment for 5 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 6 months;

The accused is acquitted of the rest of the charges.

ACCUSED NO: 2 ADAMBHAI SULEMANBHAI AJMERI has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED For offence punishable under Section 3 (3) of the POTA Life Imprisonment and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 3 (3) read with Sec. 5 of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 22 [2] (a) (b) of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 20,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 120B IPC read with Section 4 of the Explosive Substances Act Rigorous Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 120B IPC read with Section 3 & read with Section 6 of the Explosives Substances Act Life Imprisonment and a fine of Rs. 20,000/=;

For offence punishable under Section 120B IPC read with Sec. 302 IPC Death Penalty (hanging by neck till death) and a fine of Rs. 25,000/=;

For offence punishable under Section 120B IPC read with Sec. 307 IPC Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 120B IPC read with Section 27 of the Arms Act Rigorous Imprisonment for 7 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 1 year.

The accused is acquitted of the rest of the charges.

ACCUSED NO : 3 MOHMED SALIM HANIF SHAIKH has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED For offence punishable under Section 3 (3) of the POTA Life Imprisonment and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 3 (3) read with Sec. 5 of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For the offence punishable under Section 20 of the POTA Rigorous Imprisonment for 5 years and a fine of Rs. 20,000/=; in default of payment of fine, a rigorous imprisonment for 1 year;

For the offence punishable under Section 21 [2] (b) of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 22 [1] (a) of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 20,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 120B IPC read with Sec. 4 of the Explosives Substances Act Rigorous Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 120B IPC read with Sec.3 & Sec.6 of the Explosive Substances Act Life Imprisonment and a fine of Rs. 20,000/=;

For offence punishable under Sec. 120B IPC read with Sec. 302 IPC Life Imprisonment till his natural life (till he is alive) and a fine of Rs. 25,000/=;

For offence punishable under Sec. 120B IPC read with Sec. 307 IPC Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 120B read with Section 121-A of the IPC Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Section 120B read with Sec.153A of the IPC Rigorous Imprisonment for 3 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 6 months;

For offence punishable under Section 120B IPC read with Sec. 27 of the Arms Act Rigorous Imprisonment for 7 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 1 year.

The accused is acquitted of the rest of the charges.

ACCUSED NO : 4 ABDULKAYUM @ MUFTISAAB MOHMEDBHAI MANSURI has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED For offence punishable under Section 3 (3) of the POTA Life Imprisonment and a fine of Rs. 10,000; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 3 (3) read with Section 5 of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

CONVICTION PUNISHMENT IMPOSED For offence punishable under Section 120B IPC read with Sec. 4 of the Explosives Substances Act Rigorous Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Section 120B IPC read with Secs. 3 & 6 of the Explosive Substances Act Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine to recover the amount in accordance with the law;

For offence punishable under Section 120B IPC read with Sec. 302 IPC Death Penalty (hanging by neck till death) and a fine of Rs. 25,000/=; in default of payment of fine, the same shall be recovered in accordance with law;

For offence punishable under Section 120B IPC read with Sec. 307 IPC Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Sec. 120B read with Section 153A of the IPC Rigorous Imprisonment for 3 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 6 months;

For offence punishable under Sec. 120B IPC read with Section 27 of the Arms Act.

Rigorous Imprisonment for a period of 7 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 1 year.

For offence punishable under Sec. 120B IPC read with Section 121-A of the IPC Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

The accused is acquitted of the rest of the charges.

ACCUSED NO: 5 ABDULLAMIYA YASINMIYA KADRI has been convicted and sentenced for the offences as under:-

CONVICTION PUNISHMENT IMPOSED For offence punishable under Sec. 3 (3) of the POTA Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for a period of 2 years;

The accused is acquitted of the rest of the charges.

ACCUSED NO: 6 SHAANMIYA @ CHANDKHAN SAJJADKHAN has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED For offence punishable under Sec. 3 (3) of the POTA Life Imprisonment and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Sec. 3 (1) of the POTA Life imprisonment and a fine of Rs. 25,000/=; in default of payment of fine, the same shall be recovered in accordance with the law;

For offence punishable under Sec. 3 (3) read with Sec. 5 of the POTA Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/=; in default of payment of fine, a simple imprisonment for 1 year;

For offence punishable under Sec. 120B IPC read with Sec. 4 of the Explosive Substances Act Rigorous Imprisonment for 10 years and a fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

For offence punishable under Sec. 120B IPC read with Secs. 3 & 6 of the Explosive Substances Act Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine to recover the amount in accordance with the law;

For offence punishable under Sec. 120B IPC read with Section 302 IPC Death Penalty (hanging by neck till death) and a fine of Rs. 25,000/=; in default of payment of fine, the same shall be recovered in accordance with law;

For offence punishable under Sec. 120B IPC read with Section 307 IPC Life Imprisonment and a fine of Rs. 20,000/=; in default of payment of fine, simple imprisonment for 1 year;

For offence punishable under Sec. 120B IPC read with Section 25 [1] [AA] of the Arms Act Rigorous Imprisonment for a period of 7 years and fine of Rs. 10,000/=; in default of payment of fine, a simple imprisonment for 2 years;

The accused is acquitted of the rest of the charges.

3. The aforesaid sentence imposed upon each accused is ordered to run concurrently. The accused are allowed set-off for the time spent in custody, wherever applicable.

4. The criminal prosecution against the aforesaid six accused persons and other absconding and dead accused arose from an incident of terrorist attack on Akshardham Temple at Gandhinagar on 24th September 2002. On Sunday, the 24th day of September 2002 at around 4:40 in the afternoon, two persons armed with AK 56 rifles, hand grenades, ammunition, etc., entered the temple precinct over the Gate No. 3. The said two persons [hereinafter referred to as, the Fidayins ] opened indiscriminate firing near the entertainment area of the temple where several people had gathered to enjoy various rides. From there, the fidayins turned towards the temple. They opened fire at the pilgrims and visitors. They also entered the museum area where there was concentration of people. They threw hand grenades. The aforesaid attack continued all throughout the night until the wee hours of 25th September 2002. The attack could be arrested only after the National Security Guard Commandos [hereinafter referred to as, the NSG Commandos ] took over the entire temple area and till both the Fidayins died in the counter attack by the NSG commandos. In the said incident, thirty three people lost their life and eighty six people sustained injuries. Two dead bodies which could not be identified were believed to be that of the Fidayins. The people who lost their life included young and old; men and women and also an unborn child.

5. The FIR [Exh.680] in respect of the incident came to be lodged on 25th September 2002 after the NSG commandos handed the premises of the temple over to the police. In the said FIR, no offence under the Prevention of Terrorism Act, 2002 [hereinafter referred to as, the POTA ] was mentioned. By Order made on 3rd October 2002, the investigation in the incidence was entrusted to the Anti Terrorist Squad [hereinafter referred to as, the ATS ]. The investigation remained with the ATS for nearly an year without making any break through. On 28th August 2003, the investigation was transferred to the Crime Branch. Since the transfer of the investigation to the Crime Branch, the investigation gathered momentum. In the next few days, several arrests were made including the arrest of these six accused persons. The confessional statements of the accused persons were recorded. The statements of witnesses were recorded. Further investigation in the matter was carried out, identification of places and recovery of muddamal articles followed. On discovery of involvement of the prohibited terrorist groups Jais-E-Mohmmad and Lashkar-E-Toiba the offence under the POTA was registered. The case was transferred to the Special Court. The chargesheet against the accused persons was filed on 25th November 2003. The charge [Exh. 83] was framed on 17th June 2004.

6. It was alleged that the heinous attack was the retaliation of the incidence of the communal riot in the State of Gujarat which broke out in the months of March & April 2002 in which several Muslim persons had lost their lives and properties. The terrorist attack was conceived by some unknown persons of foreign origin presumably of Pakistan and Saudi Arabia. The Indian Muslims residing in Saudi Arabia were instigated to retaliate the incidence of the months of March/April 2002. They were enticed to fund the terrorist attack. The Fidayins were recruited by the said master minds. They traveled to Ahmedabad by train from Kashmir via Bareily. They were provided with rifles, hand grenades, gun-powder and other weapons. The accused persons joined them in providing necessary hide-outs in the city of Ahmedabad; in providing transport in and around the city of Ahmedabad and in selecting the place and time for carrying out their attack and in giving them last rites of namaaz for their well being [Hifazat].

7. The charge was framed against the six appellants and 28 others, including the two fidayins and 26 accused who are absconding. It was alleged that with a view to retaliating the loss of life and the property caused to the Muslims in the State of Gujarat during communal riots that broke out after the incidence of Sabarmati Express Train carnage at Godhara on 27th February 2002 in which some Muslims had burnt the Hindu Kar-Sevaks alive, a criminal conspiracy was hatched to strike terror amongst the Hindus in the State of Gujarat and to wage war against the State of Gujarat. The accused nos. 1 to 6 and the absconding accused nos.3 to 28 in connivance with one another had gathered the Indian Muslims working in the towns of Jiddah, Shiffa and Riyadh of Saudi Arabia at the residence of the accused no.3, the accused nos. 1, 3 and 5 and the absconding accused nos.3, 4, 5, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 who were the members of the prohibited terrorist groups Jais-E-Mohamed Tanzim and Lashkar-E-Toiba made inciting statements and utterance and hatched conspiracy to spread terror in the State of Gujarat. They showed the cassettes of the loss caused to the Muslims in the State of Gujarat and the gruesome photos and the videos of the dead bodies of Muslim men, women and children at the residence of the accused no.3 and at party plots; distributed the cassettes and made enticing statements damaging the unity and integrity of India; to assassinate the Hindu leaders and to cause loss to the person and property of Hindu people. The accused no. 1 and 3 and the absconding accused nos. 3 to 5 and 12 to 22 at the instance of the ISI of Pakistan became members of the terrorist outfit Jaish-E-Mohammad and collected funds for it.

The absconding accused no. 4-the brother of the accused no.2 Adambhai Sulemanbhai Ajmeri assured the accused no.2 by telephone to provide sufficient man-power, weapons and the funds for striking terror in Gujarat. He also instructed accused no.2, to provide hideouts to the Fidayins in the city of Ahmedabad. The accused no. 2 contacted the accused no. 4 and 5 who were working at the relief camp at Dariapur Bavahir Hall and were instigating young muslim boys. After discussion, it was decided to call for the funds from Saudi Arabia. The responsibility to carry out the terrorist attack was taken over by the accused nos. 2, 4 and 5. The absconding accused nos. 9, 10 and 11 the residents of Saudi Arabia who were working with 'Jaish-E-Mohammad sent funds to Ahmedabad through the absconding accused no. 8 and one another to the accused no.2. On 26th April 2002, the accused no. 2 met the absconding accused nos. 16 and 23 at Hyderabad in hotel G-Royal to explain to them the intention to strike terror to retaliate the loss suffered by the Muslims in the State of Gujarat and to arrange for funds, arms and the manpower for the said purpose. In pursuance, the absconding accused no. 23 gave Rs. 3,500 to the accused no. 2 to carry out the conspiracy.

To carry out the aforesaid criminal conspiracy, the absconding accused no. 16 visited the relief camps run at Ahmedabad during the communal riots. At his instance, the accused no.6 arranged to send young Muslim boys taking shelter in the relief camp to Pakistan for training.

To carry out the said criminal conspiracy the Fidayins and the absconding accused no. 3 came to Ahmedabad before 24th September 2002. The accused no. 2 received them at the railway station. The accused nos.4 & 5 provided shelter in the Bavahir Hall at Dariapur and at another place. The accused no.4 wrote the instigating write up in Urdu that was found from the person of the Fidayins after they were killed in the counter attack by the NSG commandos. The accused no.2 procured auto-rickshaw no. GRW-3861 of the ownership of one Dhruvnarayan Ramtirth Pandey [PW 117 : Exh. 642] and carried them around the Ahmedabad city to show them the party office of the Bharatiya Janta Party, of the Vishwa Hindu Parishad and other congested areas, Akshardham temple at Gandhinagar largely visited by the Hindu people and the places where terror attack could be carried out so as to cause maximum damage. The accused no.2 arranged for the overnight stay of the Fidayins at the residence of his brother Habib @ Abbas.

On 24th September 2002 before the incidence, the accused no.2 and the absconding accused no.23 went to Akshardham temple and waited there. At that time, the Fidayins [deceased accused nos. 1 & 2] reached there in an Ambassador Car driven by Rajnikant [Rajuji] Bhallaji Thakore [PW-68 Exh. 391]. After the Fidayins jumped over the Gate No.3, entered the Akshardham temple and started firing at the people, the accused no.2 and the absconding accused no. 23 left the temple and came back to Bavahir Hall. Under the instructions of the accused nos.4 & 5, the accused no. 2 escorted the absconding accused no. 23 to the Ahmedabad Railway Station and arranged for him to leave for Baroda in a hired taxi.

The deceased terrorist Zuber, an active member of the terrorist group Jaish-E-Mohammad introduced the accused no. 6 to the absconding accused nos. 24 and 25. With the help of absconding accused nos. 24 and 25, the accused no. 6 purchased an ambassador car from Mazgaon [Jammu Kashmir] for Rs. 40,000/= and got the ambassador car modified to provide for a concealed cavity to carry the weapons like AK 56 rifles, magazines, hand grenades, explosives, etc. The accused no. 6 with the help of the absconding accused no. 24 arranged for Fidayins to travel from Anantnag to Bareily in ambassador car no. KMT-413 and sent the Fidayins from Bareily to Ahmedabad. The accused no. 6 with the help of the absconding accused no. 27 brought the weapons to Ahmedabad in the company of the absconding accused no.28. The absconding accused no.7 helped the accused no.6, the Fidyains and the absconding accused no.26 to transport the weapons in his auto-rickshaw. The accused no.6 received Rs.30,000/= from the terrorist Zuber [later died in an encounter].

8. Thus, the accused before the Court, and the absconding accused and the Fidayins hatched a criminal conspiracy to wage war against the Government of India and the Government of Gujarat; to strike at the unity, integrity and sovereignty of India. The accused present and absconding, hatched conspiracy in connivance with one another, recruited Fidayins, collected the weapons and explosives, used them with knowledge and intention to wage war against the Union of India and the State of Gujarat to commit offences punishable under Section 120B IPC read with Section 121; Section 124A; Section 123; Section 153A; Section 302; Section 452 and Section 307 IPC; punishable under Section 120B IPC read with Section 29, Section 25[1](AA); Section 27 of the Arms Act, 1959; punishable under Section 120B IPC read with Section 3, Section 4 and Section 6 of the Explosive Substances Act, 1908; punishable under Section 120B IPC read with Section 153A IPC; punishable under Section 3(1)(a)(b); Section 3(3); Section 4; Section 21; Section 21(2) of the Prevention of Terrorism Act, 2002 read with Section 120B IPC and punishable under Section 135(1) of the Bombay Police Act, 1951.

9. The Principal Secretary to the Government of Gujarat, Home Department, Gandhinagar-Shri Kuldip Chand Kapoor [PW-88 : Exh.497] has proved the sanction Exh.498 to prosecute the accused under the POTA granted by the Government of Gujarat under Section 50 of the POTA. The Municipal Commissioner, Bhavnagar Shri Saiyed Javed Haider [PW-92 : Exh. 525] has proved the sanction Exh. 527 to prosecute the accused under the Arms Act & the Explosive Substances Act granted by him as the District Magistrate, Gandhinagar.

10. The legality of the aforesaid sanction Exhs.498 and 527 is not challenged before us.

11. The incidence has been proved by the prosecution by the evidence of the Eye-witnesses and the injured witnesses Shri Pravinbhai Chhotalal Khetani [PW-3:Exh. 125]; Jitendra Radheshyam Shah (Injured) [PW-7:

Exh. 134]; Madansingh Varsingh Pasaya (Injured) [PW-8: Exh.135]; Anwarbhai Karimbhai Mir (Injured) {PW-9 Exh.136]; Rajeshbhai Madhubhai Patel (Injured) [PW-10:Exh.137]; Pareshbhai Jayantibahi Brahmin (Injured) [PW-11 : Exh.138]; Gurmitsingh Bhajansingh Bagga (Injured) [PW-13: Exh. 148]; Santosh Venkatesh Kulkarni [PW-14: Exh. 149]; Kodsinh Udesinh Jadav [PW-15:Exh. 150]; Narendra Ratilal Bhatt [PW-16:Exh. 151]; Abhipshaben Jayanarayanbhai Joshi (Injured) [PW-19:

Exh.161]; Jayantibhai Ratilal Patel (Injured) [PW-20: Exh. 162]; SRP Commando Kirtansinh Amarsinh Bariya (Injured) {PW-21 : Exh. 163]; Police Sub-Inspector-Digvijaysinh Pathubha Chudasama (Injured) [PW-67: Exh.390]; NishitbhaiKanubhai Acharya {PW-114:Exh. 633]; Rushikesh Pundarikbhai Hathi [PW-115 : Exh. 634] and Randeepsinh Harvindarsinh Chhabada [PW- 116 : Exh. 641].

12. The casualties are proved by the Postmortem Notes Exhs. 170 and 171 proved by Dr. Jayantilal Virjibhai Sapapara [PW-22 : Exh. 169]; Exhs. 174 & 175 proved by Dr. Vindobhai Virabhai Makwana [PW-24: Exh. 173]; Exh.177 proved by Dr. Ramabhai Vitthaldas Patel [PW-25 : Exh. 176]; Exh.179, proved by Dr. Hemantbhai Dahyabhai Patel [PW-26 : Exh. 178]; Exh. 194, proved by Dr. Hemant Rameshchandra Parthiv [PW-30 :

Exh. 193]; Exhs. 196, 197 & 198 proved by Dr. Vinodkumar Ambalal Patel [PW-31 : Exh. 195]; Exhs. 201, 202 & 203, proved by Dr. Govindbhai Dahyabhai Patel [PW-32 : Exh.200]; Exhs. 205 & 206, proved by Dr. Sunilbhai Baldevbhai Patel [PW-33 : Exh. 204]; Exhs. 350, 351, 352, 353 & 354, proved by Dr. Manishbhai Sutaria [PW-63 : Exh.349]; Exh.356 & 357, proved by Dr. Dipeshbhai Maganbhai Patel [PW-64 : Exh.355]; Exhs. 359, 360 & 361, proved by Dr. Ishvarbhai K. Prajapati [PW-65 : Exh. 358]; Exhs.467 & 468, proved by Dr. Mayank Manilal Patel [PW-79 : Exh. 466]; Exhs. 470 & 471, proved by Dr. Dipakbhai Popatbhai Patel [PW-80 : Exh. 469]; Exhs. 492, 493, 557 & 558, proved by Dr. Dharmeshbhai Somabhai Patel [PW-87 : Exh. 491].

13.

The inquest Panchamas Exh.250 is proved by the panch witness Shilpaben Bakulbhai Doshi [PW-36 : Exh. 249]; Exh. 252 is proved by Shailendra Mahendrabhai Ahir [PW-37 : 251]; Exhs. 254 to 256 are proved by the panch witness Suvarnaben Padyumnabhai Nanavati [PW-38 :

Exh. 253]; Exhs. 258 & 259 are proved by the panch witness-Shri Pravinbhai Madhvadas Patel [PW-39 : Exh. 257]; Exhs. 261 to 263 have been proved by the panch-witness Rohitkumar Kantilal Patel [PW-40 :

Exh. 260]; Exh. 265 is proved by the panch-witness Rajendrakumar Hiralal Radhanpura [PW-41 : Exh. 264]; Exh. 267 is proved by the panch-witness Shaileshbhai Prabhulal Thakkar [PW-42 : Exh. 266]; Exh. 269 is proved by the panch-witness Suketubhai Jamnadas Mehta [PW-43 :

Exh. 268]; Exh. 271 is proved by the panch-witness Jagdishbhai Mulchandbhai Patel [PW-44 : Exh. 270]; Exhs. 273 to 275 are proved by the panch-witness Bipinsinh Pruthvisinh Chavda [PW-45 : Exh. 272]; Exh. 277 is proved by the panch witness Shirishbhai Shashikantbhai Shah [PW-46 : Exh. 276]; Exh. 279 is proved by the panch-witness Trilochansingh Avtarsingh Sardar [PW-47 : Exh. 278]; and the inquest panchnama Exh. 281 is proved by the panch witness Nareshkumar Thanmal Shah [PW-48 : Exh. 280].

14.

The injuries to the individuals have been proved by the medical certificates Exh. 385 proved by Dr. Yogesh Rameshkant Parikh [PW-23 :

Exh. 172]; Exh. 181, proved by Dr. Mukeshbhai N. Shah [PW-27 : Exh. 180]; Exhs. 182 to 189, proved by Dr. Kunal Dashrathbhai Patel [PW-28 : Exh. 182]; Exhs. 191 & 192, proved by Dr. Gautambhai Vrajlal Nair [PW-29 : Exh. 190]; Exhs. 207 to 223, proved by Dr. Manisha Pranjivan Dhimer [PW-34 : Exh. 207]; Exhs. 225 to 247, proved by Dr. Pradipkumar Singh [PW-35 : Exh. 224]; Exhs. 363 to 385, proved by Dr. Rajendrakumar Bhagirath Joshi [PW-66 : Exh. 362].

15.

Handing over of the List Exh.524, the bodies of the Fidayins and the muddamal articles recovered from the body of the deceased Fidayins including two notes in Urdu by Lt. Col. Lamba [PW-91] to the Divisional Police Officer-Shri G.L Singhal under Panchnama Exh.440 is proved by the Panch-Vinodkumar Valjibhai Udhecha [PW-74 : Exh. 439].

16. Recovery of white coloured AD Gel pen from the scene of offence under Panchnama Exh. 650 is proved by the Panch Hareshbhai Chimanlal Shah [PW-119 : Exh. 649]. The muddamal pen was sent to the Forensic Science Laboratory under Panchnama Exh. 621 [Item No. 55] The FSL report Exh. 668 confirmed that the Urdu writings Exh. 658 were in the same ink as that of the muddamal pen.

17. Recovery of muddamal articles in the afternoon of 25th September 2002 [84 in number] from the temple precincts under Panchnama Exh. 396 is proved by panch- Prakashsinh Ratansinh Waghela [PW-71 : Exh. 395].

18. Panchnama Exh. 435 of the temple precincts from Gate No. 3 to the Temple and recovery of muddamal articles is proved by Panch- Prakashsinh Ratansinh Waghela [PW-71 : Exh. 395].

19. Recovery of empty bullet of Rifle-303, Rifle Butt No. 553, disposal of left out hand grenades, recovery of empties from the fire arms of the SRP Jawans, the empties produced by I.G Shri VV Rabari; production and sealing of Dongri of the police constable, recovery of bullets from the injured witnesses, production of clothes of injured PSI-Digvijaysinh Chudasama and injured witness, the splinters of hand grenades and bullets recovered from the injured are proved by the panchnama Exhs. 553, 106, 121, 107, 596, 108, 597, 109, 110, 111 &

160.

20. Panchnama Exh.119 of sealing of two ammunition pouches recovered from the deceased Fidayins is proved by Panch-Dilipsinh Bhavansinh Makwana [PW-1 Exh. 117].

21. Recovery of the disputed signature of witness-Abdul Wahid [PW-56] in the entry register of Hotel G.Royal Lodge, Naampalli, Hyderabad and the collection of his specimen signature collected under Panchnama Exh.583 is proved by Panch-Manubhai Chhaganlal Thakker [PW-101 : Exh. 581]. Collection of the natural signature of the witness Abdul Wahid [PW-56] under Panchnama Exh. 684 is proved by the investigating officer Shri G.L Singhal [PW-126 : Exh.679].

22. Seizure of Auto-rickshaw No. GRW-3861 recovered from the compound of the Municipal Staff Quarters, Shahpur under Panchnama Exh. 128 is proved by Panch-Suresh Chhotubhai Vasava [PW-12 : Exh.139].

23. The various places the Fidayins had visited and the route they had taken in auto-rickshaw No. GRW-3861 on 22nd September 2002 and the route to Akshardham on 24th September 2002 was traced by the accused no.2 under the Panchnama Exh. 682 proved by Panch-Dipaksinh Ghanshyamsinh Chudasama [PW-62 : Exh.344].

24. House of Abbas [the brother of the accused no.2 Adam Ajmeri] in which Fidayins and Ayub [absconding accused no. 23] were provided lodging was identified by the accused no. 2-Adam Ajmeri under Panchnama Exh. 580 proved by the Panch-Jignesh Arvindbhai Shrimali [PW-100 : Exh. 579].

25. Seizure Panchnama Exh.336 of the Passport and a piece of paper containing telephone numbers, a telephone diary and electricity bill of February 2003 of the accused no.2 Adam Ajmeri has been proved by the Panch-Santosh Kumar R.Pathak [PW-59 : Exh. 335].

26. Panchnama Exh.446 of collection of the natural signature of the accused no. 2 Adam Ajmeri is proved by the Panch-Mukeshbhai Natwarlal Marwadi [PW-75 : Exh.445] and recovery of specimen handwriting of accused no.2 Adam Ajmeri under Panchnama Exh.448 is proved by Panch-Dineshbhai Chunaji Parmar [PW-76 : Exh. 447].

27. Seizure Panchnama Exh. 589 of recovery of Railway Ticket from Ahmedabad-to-Mumbai dated 22nd April 2002; communication in respect of cancellation of tickets dated 22nd April 2002; telephone charge slips and the expense account for mattresses, fan, petrol, food, hotel from the residence the accused no.2 Adam Adjmeri has been proved by the Panch Navinchandra Bechardas Kahaar [PW-103 : Exh. 585].

28. Seizure of the Accounts Diary from Mehboob-e-Ilahi Abubakar Karim[PW-82] to prove receipt of Rs. 10,000/= and Rs. 20,000/= sent from Riyadh and paid to the accused no.2 Adam Ajmeri under the Code JIHAD under Panchnama Exh. 481 is proved by the Panch-Bharatbhai Babulal Parmar [PW-102 : Exh. 584].

29. The accused no. 2 - Adam Ajmeri had identified the STD/ISD PCO booths used by him for telephonic talk to Riyadh, Jiddha, Hyderabad, etc. before the terrorists attacked Akshardham under Panchnama Exh. 659 proved by Investigating Officer-Vakhatsinh Devisinh Vanar [PW-112 : Exh. 614].

30. Handing over of the sealed Urdu writings to Shri S.G Khandelwal, Asstt. Director, Forensic Science Laboratory under Panchnama Exh. 485 is proved by the Panch-Shankerbhai Ishwarbhai Kahar [PW-85 : Exh. 484].

31. Natural handwriting Exh.613 of the accused no.4 - Abdul Kayum from a diary identified by him was recovered under panchnama Exh.309 proved by the Panch Ashok Manaji Marwadi [PW-49 : Exh.308].

Collection of the specimen writing Exh. 698 of accused no.4-Abdulkayum @ Muftisaab Mohmedbhai Mansuri under Panchnama Exh. 334 is proved by the Panch-Arvindbhai Jehabhai Chavda [PW-58 Exh. 333].

The Handwriting Expert Shri Jagdishbhai Jethabhai Patel [PW-89 : Exh. 507] has proved the opinion Exh. 511. He opined that the handwriting on disputed writings A/5/A, A/5/B [Urdu writings Exh.658] were the same as the natural handwriting and the specimen writing of the accused no. 4-Abdulkayum. The report Exh. 511 is also confirmed by the Expert Report [Mark-T] of Shri R.K Jain, Directorate of Forensic Sciences, Hyderabad.

32. In the presence of the Panch-Bhikhaji Bachuji Thakore [PW-61 : Exh. 343], under panchnama Exh.681, the accused nos. 4 & 5 identified the place of the last namaaz performed for the Fidayins and the place where the weapons were packed. The witness identified the accused nos. 4 & 5 in the Court room.

33. Recovery of muddamal-Ambassador Car No. KMT-413 from the compound of SOG Camp, Srinagar [J&K] and the existence/disclosure of concealed cavity under the rear seat of the car under panchnama Exh.671 is proved by the Police Inspector-Shabirahmed-PI [PW-123 :

Exh. 670] and the Assistant Sub-Inspector-Gulammohamad Dar [PW-124 :

Exh. 673].

34. Recovery of the disputed handwriting of Yusufbhai Valibhai Gandhi [PW-57] from entry no.81 dated 23rd September 2002 and his natural handwriting from entry nos. 224, 225 & 226 of 24th May 2003 & 26th May 2003 from the passenger register of Gulshan Guest House under Panchnama Exhs. 317 & 319 have been proved by the Panch-Poonambhai Narshibhai Parmar [PW-54 : Exh. 318] and Panch-Ashok Sahadevbhai Kahaar [PW-53:Exh. 316] respectively. The panch-Poonambhai Narshibhai has also proved recovery of the disputed signature of the accused no.6-Chandkhan from column No. 13 of the aforesaid entry no.81. The collection of specimen handwriting of Yusuf Gandhi [PW-57] under panchnama Exh.321 is proved by Panch-Sajubha Adarji Thakore [PW-55 : Exh. 320].

35. Accused no. 6 identified STD booths used by him during his stay on 23rd & 24th September 2002 under Panchnama Exh. 342 proved by Panch-Prahlad Bagdaji Marwadi [PW-60 :

Exh. 341].

36. Accused no. 6 identified the places he visited and the way to Gulshan Guest House from Railway Station under Panchnama Exh. 591 proved by Panch- Natwarbhai Fakirchand Kahar [PW-104 : Exh. 590].

37. The Taxi Driver Rajnikant [Rajuji] Thakore identified dead bodies of the Fidayins under Panchnama Exh. 130 proved by Panch- Bhupatsinh Chandaji Waghela [PW-5 : Exh. 129].

38. The route of the Fidayins from Kalupur Railway Station to Akshardham Gate No. 4 is identified by Taxi driver Rajnikant Thakore [PW-68] under panchnama Exh. 131- proved by Panch- Bhupatsinh Andaji Waghela [PW-5 Exh. 129].

39. The prosecution has examined Lt. Col. Jaydeep Lamba [PW-91::Exh.522] of the Special Task Force No. 51. He gave evidence before the Court that the National Security Guard has a base at Manesar, near New Delhi. The Special Task Force No. 51 was instructed to counter the terrorist attack on Akshardham Temple at Gandhinagar; that a group of 99 commandos headed by the deponent Lt. Col. Lamba came to Ahmedabad little before midnight of 24th September 2002. After receiving some briefing from the local police and the inmates of the Akshardham temple, the NSG commandos took over possession of the Akshardham precincts and counter attacked the Fidayins. Before the NSG commandos took over possession of the Akshardham precincts, nearly thirty two persons had lost their life. He gave evidence how the terrorist attack was countered by the NSG commandos. The cross firing continued till around 4:30 in the morning when both the Fidayins died of the bullet injuries in the counter attack by the NSG commandos. One NSG Commando died in the cross-firing. One another who had received injury was taken to Delhi. He died after nearly a year of hospitalization. At first the NSG commandos evacuated 90 persons stranded in the Auditorium. Thereafter, the search was made. Live explosives were discharged and destroyed at the very spot. The NSG Commandos recovered two dead bodies; two AK 47/56 rifles, live hand grenade; Urdu writing on two pieces of paper [Exh.658], chocolate, etc. from the body of the Fidayins. No police official was present during the search. List Exh.524 of the dead bodies of the Fidayins and the muddamal articles recovered from the dead bodies was made. He admitted his signature on the list Exh.524. He admitted the signature of Brig. Raj Sitapathi on the two Urdu write ups written on the pieces of paper recovered from the body of the Fidayins. He also deposed that a Maulvi was summoned in the presence of the deponent to translate the contents of the write up recovered from the body of the deceased Fidayins; that the Maulvi translated the said writing in Gujarati which meant that the Fidayins were from Atok region of Pakistan and that the attack on the Akshardham was organized to retaliate the loss suffered by the muslims in communal riots in the State of Gujarat. After operation was called off, the possession of the Akshardham precincts was handed over to the Police. The Divisional Police Officer Shri G.L Singhal received the list [Exh. 524] and the muddamal articles. He took over the charge of the Akshardham precincts.

40. The Divisional Police Officer, Gandhinagar Shri G.L Singhal [PW 12 : Exh.679] has been examined by the prosecution. The said Shri Singhal had received message of firing at the Akshardham temple at Gandhinagar on 24th September 2002 at around 4 :50 in the afternoon. Immediately he and his staff proceeded towards Akshardham temple and informed other police stations of the surrounding areas. The SRP commandos and the Anti-Terrorist Squad officers were informed and were summoned to the Akshardham temple. He admitted the FIR [Exh. 680] lodged by him. He admitted he had received the muddamal articles rifles, magazines, hand grenades, write up in Urdu, as per the List [Exh. 524] from Lt. Col. Lamba. He admitted receipt of the write up in Urdu [Exh. 658] counter signed by Brig. Raj Sitapathi. He admitted that on 3rd October 2002 the investigation was entrusted to the Anti Terrorist Squad and later on under Order dated 28th August 2003 made by the Director General of Police, the investigation was transferred to the Crime Branch, Ahmedabad. Since the date of incident, on 6th April 2003 he was transferred as Asstt. Commissioner of Police, Crime Branch, Ahmedabad City. Pursuant to the order dated 28th August 2003, he had taken over investigation from Shri K.K Patel, Superintendent of Police-ATS. The information was received about the involvement of certain young people from Ahmedabad working in Saudi Arabia. One Asfaq Bhavnagari [PW-50] was brought before the deponent for interrogation. On interrogation of the said Asfaq Bhavnagari, names of certain accomplices viz., Salim Shaikh, Altaf Malek; Maulvi Abdulla, Adam Ajmeri were disclosed. It was also disclosed that the attack was conceived and funded by the agents of terrorist groups Laksher-E-Toiba and Jaish-E-Mohammad residing in Saudi Arabia. On disclosure of the said facts, the alleged accomplices were rounded up and brought before the police. After ascertaining their complicity, they were arrested on 29th August 2003. In view of the involvement of prohibited terrorist groups, provisions of the POTA were invoked. In course of the investigation, the police had recorded statements of witnesses Nasir Doman, Munaf Radiator, Abdul Wahid, Abdul Rehman Panara, Mehboob Ilahi and others. He had arranged for recording of the statements of witnesses under Section 164 CrPC, the confessional statements made by the accused under Section 32 of the POTA, for recovery of the muddamal articles pursuant to the disclosures made by the accused in their confessional statements. The Police Officer Shri V.D Vanar [PW-112] was despatched to Bareily and the Sub Inspector Shri I.K Chauhan [PW-125] was dispatched to Kashmir to recover the muddamal car and to collect the necessary information. Sub Inspector M.D Chaudhary [PW-110] was dispatched to Hyderabad for recovery of muddamal articles. The deponent prepared panchnama of collecting the disputed signatures of the accused and their natural signatures. He made investigation in respect of the phone calls. He admitted his signature on the panchnama Exhs.334, 345, 347, 483, 556, 681, 580, 450, 682, 660, 446, 448, 319, 307, 683, 684, 697 & 698 of recovery of muddamal articles, sent the muddamal articles for examination by the Forensic Science Laboratory. He proved the Laboratory Reports Exhs. 685, 686, 688, 690, 692, 694, 516. He made the panchnama of the place where the deceased Fidayins had been given shelter and the place where namaaz for their well being was performed. He proved the laboratory reports and the reports of the handwriting experts.

41. The prosecution has examined the Investigating Officer Police Inspector Shri Vinodbhai Tolia [PW 113:Exh. 618]. The deponent Mr. Tolia was the police officer who had received the message of the terrorist attack on Akshardham temple at Gandhinagar, and was one of the first police officers to reach there at around 4.55 in the afternoon of 24th September 2002. He and the Divisional Police Officer Shri Singhal tried to evacuate the injured and other people from the temple precincts. They tried to counter the terrorist attack with the help of SRP platoon. Some SRP personnels were injured; one SRP constable died on the spot. He took the injured SRP personnel to the Civil Hospital, Gandhinagar. He returned back to duty at Akshardham. After FIR was lodged by Shri Singhal, the offence punishable under Section 302, 307 IPC, the Arms Act, Explosive Substances Act, Bombay Police Act was registered at Police Station CR No.I 314/02. The investigation was entrusted to the deponent Shri Tolia. Considering the gravity of the offence, he had summoned finger print experts, sniffer dogs, Videographer, Photographer, FSL personnel, Panch to the place of the offence and had started the search and recovery in the presence of the panch at around 12 in the noon and continued upto 10 O'Clock at night. The search was carried out at Gate No. 3 from where the deceased Fidyains had entered, their movement was traced to the place they were killed in the encounter. He had made the panchnama of the recovery of the empties, of the places of hand-grenade explosions; of the places of firing; of the recovery of the blood samples of the injured and the dead; of the articles collected from the bodies of the deceased, of recovery of the air bag, bed-roll, etc, left by the Fidayins at Gate No.3. The live hand grenades were destroyed by the Bomb Disposal Squad. He had made the Inquest report of the deceased Fidayins. The Panchnama Exh. 106 of the live hand grenades disposed by the Bomb Disposal Squad was made. He had recorded the panchnama of the recovery of the clothes, AK 56 rifles, magazines, empties, dry fruit, pouches, etc. recovered from the body of the deceased Fidayins by the NSG team leader Shri Sitapathi. He has admitted his signature on the panchnama of the recovery of the mudammal articles. He has deposed about the recovery of two Urdu write-ups on the body of the Fidayins and summoning of Maulvi- one Malek Bapu [PW-121 Exh.657]. The said Maulvi had read out the Urdu writing transcribed in Gujarati script [Exh.775].

42. The prosecution has examined the Deputy Inspector General of Police-Shri Virambhai Visabhai Rabari [PW-72:Exh.437]; the District Superintendent of Police, Gandhinagar Shri Rajendra Kumar Babulal Brahmbhatt [PW-81 : Exh. 475]; the Police Station Officer, Sector-7, Gandhinagar Shri Natwarlal Shankerlal Joshi [PW-86 : Exh.486] who were present on duty at Akshardham Temple.

43. The prosecution has examined Police Inspector Shri Prakashchandra Ramjibhai Mahera [PW-105 : Exh. 592]. The said Shri Mahera had received the message of attack on Akshardham temple on 24th September 2002. He had immediately proceeded to Akshardham temple and had remained on duty throughout the night and the early hours of the next day. He had received the muddamal articles recovered by Lt. Col. Lamba from the person of the dead Fidayins as per List Exh. 524 under panchnama Exh. 440. He has admitted his signature on the Inquest panchnama Exh. 267.

44. The prosecution has examined the Police Sub-Inspector Shri Gambhirsinh Vajesinh Padheriya [PW-106 : Exh. 594]. The said Shri Padheriya, though was on leave, had on receipt of the message of attack on Akshardham Temple, proceeded to Akshardham Temple and reported for duty. He was on duty throughout the night and till the next day. He has admitted recovery of muddamal articles, empties, clothes of the injured persons, splinters of hand grenades and bullets recovered from the bodies of the injured. He has admitted his signature on the panchnama of the recovery of the muddamal articles.

45. The Police Sub-Inspector Shri Padamsinh Vakhatsinh Champavat [PW :

107 : Exh.500] has been examined by the prosecution. The said witness Shri Champavat was a member of the special investigation team in respect of the Akshardham incidence. He had recorded the statements of the injured. He recovered the muddamal bullets recovered from the bodies of the injured. He admitted his signature on the panchnama of the recovery of the muddamal articles.

46. The Police Inspector Shri Mansinhbhai Devjibhai Chaudhry [PW-110 :

Exh.611] was the police officer who made investigation in respect of the accused no. 2 Adambhai Sulemanbhai Ajmeri who had visited Hyderabad and had stayed at Royal-G hotel.

47. The Police Inspector Rameshbhai Ishwarbhai Patel [PW-111 : Exh. 612] had on 31st August 2003 accompanied the accused no.2 Adambhai Sulemanbhai Ajmeri to recover the muddamal auto-rickshaw No. GRW-3861 used by the accused no. 2 Adambhai Sulemanbhai Ajmeri for carrying the Fidayins for recci of Ahmedabad City and the places around the city, including the Akshardham temple. He has also admitted recovery of the specimen signature and the natural signature of the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri at the direction of the accused Abdulkayum and the recovery of the muddamal article Exh. 105. On 2nd September 2003, he had accompanied the witness Abdul Rehman Panara [PW-51] to recover the SIM card of the accused no. 2 Adambhai Sulemanbhai Ajmeri. He has admitted recovery of the muddamal article Exh. 107 under panchnama Exh. 394. On 3rd September 2003, he had searched the house of the accused no.5 Maulana Abdulmiya to recover his passport, muddamal article 108 under panchnama Exh. 346.

48. The Police Sub-Inspector Shri Vakhatsinh Devisinh Vanar [PW-112 :

Exh. 614] had accompanied the accused no. 2 Adambhai Sulemanbhai Ajmeri to locate the telephone booth which was used by the said accused in connection with the Akshardham attack. He has admitted recovery of muddamal articles 99 , 109 , 121 , 337 to 340; 586 to 588 and his signature on the panchnama Exhs. 336, 481, 477, 480, 478, 483, 589 and 342. He had taken the accused no. 6 Chandkhan to Bareily and had made investigation at Bareily.

49. The Police Inspector Ibrahim Kalabhai Chauhan [PW 125 : Exh. 675] was the officer who had made investigation at Anantnag in Kashmir. He had obtained the order from the Chief Judicial Magistrate, Badgam on 9th October 2003 for recovery of possession of the Ambassador Car No. KMT-413. He admitted his signature on the recovery panchnama Exh.671.

50. The Deputy Commissioner of Police, Intelligence-Shri Sanjaykumar Gadhvi [PW-78 : Exh.452] has been examined by the prosecution. The said witness had recorded the confessions Exhs. 454, 456, 458, 460 & 462 of the accused nos. 3,1,2, 4 & 6 under Section 32 of the POTA.

51. The prosecution has examined the Chief Judicial Magistrate Shri S.M Padhya [PW-99:Exh.568] before whom the accused nos.1, 2, 3, 4 & 6 were produced after they made the confessional statements Exhs. 456, 458, 454, 460 and 462 under Section 32 of the POTA.

52. The Judicial Officer Shri V.R Raval [PW-73 : Exh. 438] has proved the confessions Exhs. 539, 540 & 541 made under Section 164 CrPC by the witnesses Asfaq Bhavnagari [PW-50]; Abdul Rehman [PW-51]; and Mohammed Munnaf [PW-52].

53. The Judicial Officer Shri Shaileshkumar Hiralal Oza [PW-95 :

Exh.542] has proved the confessional statements Exhs. 543 & 544 made under Section 164 CrPC by the witness Abdul Wahid [PW-56] and Mehboob Ilahi Abubakker [PW-82].

54. There cannot be a dispute in respect of the commission of offence and the manner in which it was committed and there is none.

55. Learned advocate late Mr. H.N Jhala had appeared for the accused no.1 Altafhussain Akbarhussain Malek, the appellant no.1 in Criminal Appeal No.1328 of 2006. He assailed the judgment of the learned Special Judge, in so far as the accused no.1 is convicted and the sentence of rigorous imprisonment for five years is imposed upon him.

Mr. Jhala had submitted that the retracted confessional statement unless corroborated by other evidence on record cannot be relied upon. In the present case, the conviction of the accused No. 1 Altafhussain Akbarhussain Malek is based on confessional statement alone. In absence of any independent evidence of the complicity of the accused no. 1-Altafhussain, he ought to have been acquitted. The conviction and the sentence imposed upon him deserve to be set-aside. In support of his submission, he had relied upon the judgment in the matter of Parmananda Pegu v. State of Assam [2004 SCC (Criminal) 2081].

56. Learned advocate Mr. Pathan has appeared for the accused no.6-the appellant in Criminal Appeal No. 1675 of 2006. He has assailed the judgment of the learned Special Judge. He has relied upon the evidence of one Shahirahmed, P.I., Baramulla [J&K] (PW 123 Exh.

670) and of the panch Gulammohmad [PW 124 : Exh. 673].

He has submitted that involvement of the accused no.6-Chandkhan has not been proved. The muddamal Car No. KMT-413 was not recovered from the accused no.6-Chandkhan. The prosecution has failed to establish that the accused Chandkhan was the owner of the muddamal car or that he ever was in possession of the muddamal car. He has also questioned the genuineness of the confessional statement Exh.462 made by the accused-Chandkhan. He has submitted that it is impossible that an eighteen page confession was written within two hours.

57. Learned advocate Mr. Majid Memon has appeared for the accused. He has pointed out that though the investigation was entrusted to the ATS a team of police personnel specially trained in these matters the ATS could not make any head way. For nearly one year not a single arrest was made nor was anything discovered leading to the accused persons. Nevertheless, all of a sudden, apparently without any reason, the investigation was transferred back to the crime branch. Even before the order of transfer of investigation was made and the papers were returned to the crime branch, the crime branch started acting recorded statements of witnesses and made arrest of the accused persons. In the submission of Mr. Memon, the very factum that the investigation was transferred to the crime branch and that the crime branch started acting within moments smacks mala fides. He has submitted that none of the accused was named in the FIR; there was nothing in the investigation leading to the accused persons. Nevertheless, the case was attempted to be made out against the accused persons. He has submitted that in fact, it is the police who has entered into a conspiracy to implicate the accused persons.

58. Mr. Memon has drawn our attention to the observations made by the learned Special Judge in respect of the conduct of the defence lawyers in course of recording evidence of one Abdul Rehman Gulam Hussain Panara [PW-51 : Exh.314]. He has submitted that the observations made by the learned Special Judge discloses her bias. The Applications no. 305, 310, 311 & 311A and 319 CrPC made under Section 319 CrPC were most appropriate. The learned Special Judge was not charitable in attributing tactics to the defence counsel.

59. We have carefully perused the objection-able part of the judgment, the evidence of the witness Abdul Rehman [PW-51] and the aforesaid applications made under Section 139 CrPC and the orders made thereunder. We find that the identity of the aforesaid Abdul Rehman Hussain Panara [PW-51 : Exh. 314] was not disclosed earlier. The said witness in his examination-in-chief had supported the prosecution. However, on account of the aforesaid applications made under Section 319 CrPC, the time was whiled away in conducting those applications made under Section 319 CrPC and in making order on the said applications. Thereby, the cross examination of the said witness Abdul Rehman [PW-51] could not be commenced on the same day. By the next date, in the cross examination, the said Abdul Rehman took a somersault and gave totally contradictory evidence. We find that the ire of the learned Special Judge was wholly justified. It is apparent that the defence counsel bought time. During that time, the witness Abdul Rehman [PW-51] was won over.

60. Mr. Memon has submitted that the entire case against the accused persons is based on the confessional statements allegedly made by the accused. He has questioned the admissibility of the aforesaid confessional statements. He has submitted that such statements were never made by the accused persons. They were concocted. Even if the statements were genuine, they are not admissible in evidence. There are inherent lacune in recording of the said statements. He has submitted that under the ordinary law of evidence, such statements are not admissible in evidence. However, as they are made admissible in evidence under the POTA, the law has also provided certain safeguards. He has submitted that the recording officer, with a view to ensuring that the statement proposed to be made by the accused person is made of his own volition and the accused person is not under pressure or duress from the police, was required to elicit specific answer to the questions {a} why are you making confession; {b} since when are you in the police custody and whether you are ill treated or tortured; {c} in case you do not make confession, I am bound not to send you back to the police custody; {d} whether any one has induced you or coercion made or promised you or allured you to make confession. He must specifically inform the accused that, I am not part of the investigation team. I am independent. The confession made before me is admissible in evidence . After thus ensuring that the accused person was ready to make confessional statement of his free will and that the accused person properly understood the implication of his making the confessional statement, the recording officer must give time to the accused for reflection. After such reflection, once again, he shall elicit answer to the aforesaid questions. He must ensure that the time for reflection given to the accused was adequate. After recording confession, the accused should be sent to the judicial custody. In the present case, nothing of the kind was done. He has relied upon the evidence of the recording officer one Shri Sanjay Gadhvi, Deputy Commissioner of Police, Ahmedabad City [PW-78 : Exh. 452] and the evidence of the Chief Judicial Magistrate Shri S.M Padhya,[PW-99 : Exh. 568]. He has submitted that in absence of strict observation of the aforesaid procedural safe guards, the confessional statements are not admissible in evidence. In support of his submissions, he has relied upon the judgments of the Hon'ble Supreme Court in the matters of Ranjit Singh alias Jita & Ors. vs. State of Punjab [AIR 2002 SC 3247]; of Ayyub etc. vs. State of UP [AIR 2002 SC 1192]; of Hardeep Singh Sohal, etc. vs. State of Punjab through CBI [AIR 2004 SC 4783]; of Nazir Khan & Ors. vs. State of Delhi [AIR 2003 SC 4427]; of State of Maharashtra vs. Siraj Ahmed Nisar Ahmed & Ors. [2007 (2) SCC Crime 472]; of Bheru Singh S/o Kalyan Singh v. State of Rajasthan [1994 (2) SCC 467]; of Chandrakant Chimanlal Desai v. State of Gujarat [1992 (1) SCC 473]; of Patel Himat Mohanbhai & Ors. v. State of Gujarat [1997 (1) GLH 155]; of State [NCT of Delhi] vs. Navjot Sandhu alia Afsan Guru [2005 SCC Cr. 1715]; of Bharat v. State of U.P [1972 SCC (Cri.) 198]; of Parmananda Pegu v. State of Assam [2004 SCC (Cri.) 2081]; and of Sharad Biridhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622]. He has further submitted that in any view of the matter, the accused persons retracted from the said confessional statements. Therefore also, the said statements could not have been relied upon.

61. Learned Special Public Prosecutor Mr. Panchal has appeared for the State. He has supported the judgment of the learned Special Judge. He has submitted that the confessional statements made by the accused are the substantive piece of evidence. Conviction can be based solely on the confessional statement. A retracted confessional statement would need corroboration but not in all minute details. He has distinguished the above referred judgments relied upon by Mr. Memon. In the submission of Mr. Panchal, in the present case, the confessional statements made by the accused persons were recorded after observation of all procedural safe guards and are supported by other evidence.

He has submitted that the retractions made by the accused are an after-thought. Inspite of the written retractions, the confessions made by the accused can be relied upon and conviction can be based solely on such confessions. He has submitted that all that is required is corroboration. In the present case, the confessions made by the accused are corroborated by the other evidence on record. The confessions are, therefore, rightly relied upon by the learned Special Judge to record conviction of the accused.

Mr. Panchal has submitted that the defect in investigation or lapse in investigation shall not vitiate the conviction or the sentence.

He has next submitted that there cannot be a direct evidence of criminal conspiracy. In the cases like the present, the common object is carried out under utmost secrecy. All persons involved in the conspiracy are not known to one another. The accomplice generally knows the person who recruits him and the persons whom he recruits and none other. The offence is, therefore, required to be proved by circumstantial evidence. In the present case, the prosecution has successfully established the commission of offence of criminal conspiracy and the involvement of the accused.

He has next submitted that the offence committed is indeed a rarest of rare cases. Innocent persons were targeted without any reason or provocation. The conspiracy was well-planned and was intended to kill the people without discrimination. Had the fidayins been able to reach to the Auditorium where 90 persons were stranded, the casualties would have been far greater; had it been Sunday, the magnitude of carnage would have been unprecedented. He has, therefore, submitted that the death sentence imposed upon the accused nos.2,4 and 6 be confirmed.

In support of his submissions, he has relied upon the judgments in the matters of Jayawant Dattatraya Suryarao v. State of Maharashtra [2002 SCC Cri. 897]; of Devender Pal Singh v. State of NCT of Delhi & Anr. [2002 (1) SCC Cri. 978]; of Ravinder Singh @ Bittu v. State of Maharashtra [AIR 2002 SC 2241]; of State [NCT of Delhi] vs. Navjot Sandhu alia Afsal Guru [2005 SCC Cri.1715]; of State of Maharashtra v. Bharat Chaganlal Raghani & Ors. [2002 SCC (Cri.) 377]; of Lal Singh vs. State of Gujarat & Anr. [AIR 2001 SC 746]; of State of Rajasthan vs. Ajit Singh & Ors. [(2008) 1 SCC (Cri.) 287]; of Yash Pal Mital v. The State of Punjab [AIR 1977 SC 2433]; of State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini & Ors. [AIR 1999 SC 2640]; of State of Rajasthan v. Kishore [1996 Cr.LJ 2003]; of State of W.B v. Mir Mohammad Omar & Ors. [200 Cr.LJ 4047]; of Rotash v. State of Rajasthan [2007 (2) SCC Cr. 382]; of Krishna Mochi & Ors. v. State of Bihar [2002 (2) SCC Criminal 1220]; of Lehna v. State of Haryana [2002 (1) SCC Criminal 526]; of Ravji alias Ram Chandra v. State of Rajasthan [1996 SCC Criminal 225]; of Gurdev Singh & Anr. vs. State of Punjab [AIR 2003 SC 4187] and of People's Union for Civil Liberties & Anr. vs. Union of India [2005 SCC (Cri) 1905].

62. In the matter of Ranjit Singh alias Jita & Ors.

[Supra], the Hon'ble Supreme Court has enumerated certain matters which should be taken care of before a confessional statement is recorded. The matter before the Hon'ble Supreme Court arose from a conviction recorded under the Terrorist & Disruptive Activities [Prevention] Act, 1987 [hereinafter referred to as, the Act of 1987 ]. In respect of confessional statement made before the Police Officer admissible in evidence under Section 15 of the Act of 1987, the Hon'ble Court has observed, ..In case the recording officer of the confessional statement on administering the statutory warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted would of course depend upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time. In a given case, depending on facts, the recording officer without granting any time may straightway proceed to record the confessional statement but if he thinks it appropriate to grant time, it cannot be a mechanical exercise for completing a formality. On the facts of the case, the Court held, ..he gave to the accused 20 to 30 minutes to think over whether they wanted to give the confessional statements, this time was given after the accused were administered statutory warning in the similar fashion as was done by PW-3. It seems to be quite strange that both the officers though recorded confessional statements of the accused each separately thought that half an hour or 20 minutes would be sufficient cooling time to be given to the accused who are being brought before them from police custody of 18-20 days and had expressed, according to these officers, their willingness to make confessional statements. On the facts, half an hour cooling time given to the accused to think over before recording their confessional statements was not considered to be a reasonable time. The Court did not think it safe to base conviction on such confessional statements. The Court observed, ..Further, on the facts of the present case, conviction cannot be maintained on sole testimony of two police officials.

63. The matter of Ayyub, etc. {Supra} was once again a case of conviction under the Act of 1987. The Hon'ble Supreme Court took notice of mandatory provisions contained in Section 15 of the Act of 1987 and in Rule 15 of the Rules made thereunder. The Court noted that the aforesaid Section 15 and Rule 15 requires certain procedure to be followed by the police officer recording the confessional statement. It was imperative for such officer to record his belief that he had reason to believe that it was being voluntarily made. The Court noted, ..In the instant case, the conession [sic. confession] made by these two appellants does not indicate that the same was voluntary in nature and the police officer who recored the same has not certified that he believed the confession was voluntarily made. While considering the scope and ambit of Section 15 of the Act of 1987, the Court held, ..As the confession made under Section 15 of the TADA Act is made admissible in evidence, the strict procedure laid down therein for recording confession is to be followed. Any confession made in defiance of these safeguards cannot be accepted by the Court as reliable evidence. The confession should appear to have been made voluntarily and the police officer who records the confession should satisfy himself that the same had been made voluntarily by the maker of that statement. The recorded confession must indicate that these safeguards have been fully complied with. In this case, the recorded confessional statements do not show that the officer who recorded that statement had followed those guidelines. Therefore, it is inadmissible in evidence.

64. In the matter of Hardeep Singh Sohal {Supra}, the confessional statement recorded under Section 15 of the Act of 1987 was held inadmissible in evidence. The Court noted that the accused Balwinder Singh who had made the confession had later escaped from the custody before the charge was framed by the Court and he was treated as a proclaimed offender by the Court. As the accused Balwinder Singh was not tried along with the other accused-appellants, the confessional statement made by the accused Balwinder Singh was not admissible in evidence against the co-accused

- the appellants.

65. In the matter of Nazir Khan & Ors. [Supra], the Hon'ble Supreme Court has discussed the admissibility of confessional statements made under the Act of 1987 in evidence. After considering the case-law on the point, the Court held, ..So the crux of making a statement voluntarily is, what is intentional, intended, unimpelled by other influences, acting on one's own will, through his own conscience. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It some times becomes so powerful that he is ready to face all consequences for clearing his heart. ....A confession or admission is evidence against its maker, if its admissibility is not excluded by some provision of law. Law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary. At that stage, the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. The question whether a confession is voluntary or not is always a question of fact. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. In principle and Digest of Law of Evidence Vol. I., New Edn. By Chief Justice M. Monir, after noticing conflicting view and discussing various authorities, the learned author summarized the position as follows.

The rule may therefore, be stated to be that whereas the evidence in proof of a confession having been made is always to be suspected, the confession, if once proved to have been made and made voluntarily, is one of the most effectual proof in the law.

66. In the matter of State of Maharashtra [Supra], similar was the matter at issue. The Hon'ble Court has reiterated the guidelines set-out for the police officer recording the confessional statement under Section 15 of the Act of 1987 as under :-

[1]

The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

[2]

The person from whom a confession has been recorded under Section 15 (1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15 (5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay.

[3]

The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.

[4]

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic (Prevention) Act, 1956 under Section 13, authorize only a police officer of a specified rank to investigate the offences under those specified Acts.

[5] The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody.

[6] In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure.

The Court held, ..From the aforementioned statements of law enunciated by this Court, it is apparent that considerable amount of confidence has been reposed in the senior police officials for recording the confessional statement. A confession statement to police is not admissible under the general law connected with administration of criminal justice, which is made admissible under the TADA Act, and therefore, strict compliance with the procedure prescribed under section 15 of the TADA Act read with Rule 15 of the TADA Rules is expected to be followed. Any confession made in defiance of the safeguards provided therein would not be relied upon by a Court. The confession should be made voluntarily without there being any force or pressure put on, or allurement or inducement given to, a person who is voluntarily admitting his guilt. Under Section 25 of the Evidence Act, a confession made to the police officer is not admissible in evidence to be considered by a court. Although there are certain exceptions in the preceding provision, but the fact remains that as a rule a confession made to the police officer is not made admissible under the Evidence Act. The idea appears to be that any statement made to the police officer who is connected with the investigation and prosecution of a person, would not be taken as evidence. Under Section 15 of the TADA Act, if a confession made by the accused to a police officer not lower than the rank of Superintendent of Police is made admissible, it would still be a confession made to the police officer, and thus inbuilt safeguards have been provided under Section 15 of the TADA Act read with Rule 15 of the TADA Rules so as to lend credence to the confession made to the police officer, it being voluntary and without any force or pressure and allurement or inducement. The Constitution Bench of this Court in Kartar Singh has laid down the condition to establish the voluntary nature of the confession.

67. In the matter of Bheru Singh S/o. Kalyan Singh [Supra], the Hon'ble Court was examining the admissibility of the confessional statement made under Section 164 CrPC in respect of offence punishable under Section 302 IPC. In paragraph 20 of the judgment, the Court has discussed the precautions to be taken by the Judicial Magistrate recording the confession. The Court noted that the accused was brought by the police before the Judicial Magistrate First Class on 8th June 1988. The Magistrate sent the accused to the judicial custody, to be brought back on the next day. The accused was remanded to the judicial custody with a direction to be kept separately from the other co-accused persons. The accused was produced before the judicial magistrate on 13th June 1988 and made a statement in the Court. He was cautioned, he is free to give or not to give the statement and in case he gives the statement, it may be read against him... ..That his statement would be recorded only if he wanted to make it voluntarily and of his own free will. The accused was given 24 hours' time with a direction to the Jailor to allow the accused to stay in jail in the place of his own choice so as to enable him to reflect and give a cool thought as to whether or not he wanted to make a confessional statement. The accused was assured that he would not be sent to the police custody in case he did not want to make the statement. The statement was recorded only after the accused expressed his desire to make the statement. The Court noted, ..The learned Magistrate took all steps to remove any trace of fear from the appellant and observed the formalities envisaged by Section 164 (3) CrPC before recording the statement Exh. P-2 under Section 164 CrPC.

68. In the matter of Chandrakant Chimanlal Desai [Supra], the Hon'ble Supreme Court set aside the conviction for offence punishable under Section 302 IPC based on the confessional statement. The Hon'ble Court observed, ..The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. ...As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. ...The whole approach of the High Court was to make confessional statement the basis and then find out if the facts stated therein were corroborated in material particulars by other evidence, instead of analyzing the evidence first and trying to find out whether the evidence is reliable and the facts established are consistent with the guilt of the accused. With respect, the High Court failed to realize that there were statements in the confessional statement which provided intrinsic evidence of police interference for otherwise how could accused 1 have mentioned about having seen Noorbibi when he must have seen several others also. The trial Court had critically examined the recording of the confessional statement and held that the Magistrate had not taken sufficient precautions before recording the evidence in order to ensure that the statement was voluntary.

69. In the matter of Patel Himat Mohanbhai & Ors. [Supra], the Division Bench of this Court had occasion to examine the conviction for offence punishable under Section 302 IPC based on the confession made by the accused. The Court observed, ..The Magistrate is also required to inquire as to whether the accused has been influenced by anyone to make any such confession. The Magistrate also would be required to lend assurance to the accused that he would not be sent back to police custody in case he did not make the confessional statement. The Magistrate recording the confessional statement also should question the accused as to why he wanted to make the confession or as to what had prompted him to make the confession. ...it is abundantly clear that, he had [the Magistrate], of course, cautioned the accused no. 2 that he was not bound to make any confession and that, if he prefers to make any confession before him, the said could be utilized against him as the evidence. But, excepting this, the learned Magistrate has not done anything more. He has not preferred to perform the entire exercise as pointed out by the Supreme Court in detail in the above quoted paragraph. It could not be urged that Mr. Tanna had made it clear before the accused No. 2 that he was a Magistrate and that the confession was being recorded by him in that capacity. Mr. Tanna has also not made any inquire to find out whether the accused No. 2 had been influenced by any one to make the confession. Mr. Tanna has also not made it sure as to whether the police had induced the accused No.2 to give the statement. It was also not assured to accused No. 2 that he would not be sent back to police custody, in case he did not make the confessional statement. In the same way the learned Magistrate had not questioned the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. Thus, it appears that the learned Magistrate has not performed the requisite exercise for recording a confessional statement as pointed out by the pronouncement of the Apex Court and that, he had satisfied himself, only by cautioning accused no.2 that, he was not bound to make any such confessional statement and that if he prefers to make any such statement the same could be utilized against him in evidence.

70. In the matter of Navjot Sandhu alias Afsan Guru [Supra], the Court was examining the confession made under the Act of 1987. The Court has discussed the procedural safeguards in the Act of 1987 and their impact on confessions. The Hon'ble Court has held that the procedural safe guards provided under sub-sections 2, 3 & 4 of Section 15 of the Act of 1987 stem from the guarantee enshrined in Articles 21 and 22 (1) of the Constitution. The Court has also held that, ..In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-sections (2) to (5) of Section 32. As already observed, sub-sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32 (1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from the consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safe guards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of the confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-sections (2) to (4) of Section 52 will be one of the relevant factors that would weigh with the court to act upon or discard the confession. To this extent they play a role vis-a-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-sections (2) to (5) of Section 32. ...The very fact that he will not be under the fetters of police custody after he is produced before the CJM pursuant to Section 32 (4) would make him feel free to represent to the CJM about the police conduct or the treatment meted out to him. The Court further held that, ..the time of 5 or 10 minutes is, by all standards, utterly inadequate.

71. In the matter of Bharat vs. State of U.P [Supra], the Court has considered the evidentiary value of a retracted confession. The Court held, ..A Court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought an that the earlier statement was true.

72. In the matter of Parmananda Pegu v. State of Assam [Supra], the Hon'ble Court reiterated the principles of evidentiary value of a retracted confession.

73. In the matter of Sharad Biridhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], the Court observed, ...It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. ...It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

74. In the matter of Jayawant Dattatraya Suryarao [Supra], the Hon'ble Supreme Court considering the admissibility and evidentiary value of the confessional statements recorded under Section 15 of the Act of 1987, rejected the contention that the confessional statements of the accused were recorded by the Police Officers when the accused were in police custody; after recording the confessional statements, they were not produced before the Judicial Magistrate and the confessional statements were sent to the Chief Judicial Magistrate concerned after lapse of time, thereby committing breach of Rule 15 of the TADA rules and therefore, the confessional statements were not admissible in evidence and in any case, they were not voluntary, reliable and truthful. On the evidentiary value of confessional statements, the Hon'ble Court observed, .. It is true that if the confessional statement are taken as they are, the accused can be convicted for the offences for which they are charged as the said statements are admissible in evidence and are substantive pieces of evidence. However, considering the facts of the case, particularly that the confessional statements were recorded by the police officer during investigation; the said statements were not sent to the Judicial magistrate forthwith; and that after recording the statements, the accused were not sent to judicial custody, in our opinion, unless there is sufficient corroboration to the said statements, it is not safe to convict the accused solely on the basis of the confessions. Therefore, we have considered confessional statements with the other evidence connecting the accused with the crime. Learned Senior Counsel Mr. Sushil Kumar submitted that if we remove the evidence of PW 26 from the scene then it is difficult to maintain the conviction of A-7. It is his contention that A-2 and A-6 were knowing each other as per their admission in confessional statements. He emphasized upon minor contradictions and submitted that evidence against A-7 is not sufficient to connect him with the crime. In our view other evidence as stated above fully corroborates the confessional statements and there is no reason to discard the evidence of PW 26.

75. In the matter of Devender Pal Singh [Supra], while considering the admissibility of the confessional statement recorded under Section 15 of the Act of 1987, the majority view, following the judgments in Gurdeep Singh v. State (Delhi Administration) [(2000) 1 SCC 498]; inState of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini & Ors. [AIR 1999 SC 2640]; in Jayawant Dattatray Suryarao v. State of Maharashtra [(2001) 10 SCC 109] held, ..the initial burden is on the prosecution for it has to prove that all requirements under Section 15 of the TADA and Rule 15 of the Terrorist & Disruptive Activities (Prevention) Rules, 1987 [hereinafter referred to as, the Rules ] have been complied with. Once this is done the prosecution discharges its burden and then it is for the accused to show and satisfy the Court that the confessional statement was not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused himself. The Hon'ble Court also quoted paragraph 60 from the judgment in Jayawant Dattatray's case with approval. While considering the method in which the confessional statement was recorded on computer and the certificate given by the Recording Officer in typing and not under his own hand, the Hon'ble Court observed, ..This is merely a procedural requirement. The non-observance does not cause any prejudice to the accused. It has not been shown as to how the accused was prejudiced by the certificate having been typed. Procedure is handmaid and not the mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, the requirement of recording under his own hand demands an approach which would be rational and practical and not otherwise. Such minor deficiency if any, cannot be considered to be a fatal factors so far as the prosecution case is concerned.

The Court further observed, ..A mere statement that requisite procedures and safeguards were not observed or that statement was recorded under duress or coercion, is really of no consequence. Such a stand can be taken in every case by the accused after having given the confessional statement. It could not be shown as to why the officials would falsely implicate the accused. There is a statutory presumption under Section 114 of the Evidence Act that judicial and officials acts have been regularly performed.

76. In the matter of Ravinder Singh @ Bittu [Supra], the Hon'ble Supreme Court reiterated that the confessional statements of the accused were relied upon for the purpose of his conviction and no further corroboration is necessary, if it relates to the accused himself. The Court held, ...It is thus well established that a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration. Here, we are concerned primarily with the confessional statement of the maker. The weight to be attached to the truthful and voluntary confession made by an accused under Section 15 of the TADA Act came to be considered again in a recent three Judge Bench decision in Devender Pal Singh v. State of N.C.T of Delhi & Anr. [JT 2002 (3) SC 264]. It was held in the majority opinion that the confessional statement of the accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself.

77. In the matter of Navjot Sandhu alias Afsan Guru (Supra), Mr. Panchal relied upon the observation, We are therefore of the view that the non-compliance with the judicial custody requirement does not per-se vitiate the confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the confession....It is true as contended by the learned counsel Mr. Gopal Subramanium that there is no hard-and-fast rule regarding grant of time for reflection and the rules and guidelines applicable to a confession under Section 164 CrPC do not govern but in the present case, the time of 5 or 10 minutes is, by all standards, utterly inadequate.

The Hon'ble Court dealt with the retracted confession, to quote with approval from Pyare Lal Bhargava v. State of Rajasthan [AIR 1963 SC 1094], ..A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars .

The Court relied upon case of Subramania Goundan v. State of Madras [1958 SCR 428] to hold, ..As to the extent of corroboration required, it was observed in Subramania Goundan case that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed :

It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession.

Following Jameel Ahmed v. State of Rajasthan [(2003) 9 SCC 673], the Court held, ..While we agree with the proposition that the nature of corroboration required both in regard to the use of confession against the maker and the co-accused is general in nature, our remarks made earlier in relation to the confession against the maker would equally apply to Proposition (iii) in so far as it permits the Court in an appropriate case to base the conviction on the confession of the co-accused without even general corroboration. We would only add that we do not visualize any such appropriate case for the simple reason that the assurance of the truth of confession is inextricably mixed up with the process of seeking corroboration from the rest of the prosecution evidence. We have expressed our dissent to this limited extent. In the normal course, a reference to the larger Bench on this issue would be proper. But there is no need in this case to apply or not to apply the legal position clarified in proposition (iii) for the simple reason that the trial court as well as the High Court did look for corroboration from the circumstantial evidence relating to various facts narrated in the confessional statement. Perhaps, the view expressed by us would only pave the way for a fresh look by a larger Bench, should the occasion arise in future.

78. We have considered the judgments of the Hon'ble Supreme Court in the matter of S.N Dube v. N.B Bhoir & Ors. [(2000) 2 SCC 254]; and of Lal Singh v. State of Gujarat & Anr. [(2001) 3 SCC 221]. In respect of the confessional statements recorded under Section 15 of the Act of 1987, the Court observed, ...In this case DSP Sindhe had put questions to each of the accused who was brought before him to ascertain if he was willing to make a confession voluntarily and had also given the statutory warning to him on that day. Even after the accused had shown his willingness to make a confession Shinde had given him time not exceeding 48 hours to think over his readiness to make the confession. When the accused was brought to him again he had again ascertained if he was still ready and willing to give a statement. He had also asked him if he was making it under any pressure or coercion or threat. Only after the accused had replied in the negative he had told the accused to say whatever he wanted to state about Suresh Dube's murder. In view of these facts and circumstances it is not possible to uphold the finding recorded by the trial court and to accept the contention raised on behalf of the respondents that while recording the confessions of the accused Shinde had committed a breach of Rule 15 (2).

79. In the matter of Lal Singh [Supra], the Hon'ble Court rejected the contention that the confessional statements were inadmissible in evidence because [a] the statements were recorded by the investigating officer or the officers supervising the investigation; [b] the accused were not produced before the Judicial Magistrate immediately after recording the confessional statements; and [c] guidelines laid down in the case of Kartar Singh vs. State of Punjab [(1994) 3 SCC 569] were not followed.

80. In the matter of State of Maharashtra v. Bharat Chaganlal Raghani & Ors. [Supra], the Hon'ble Court held the confessional statements of the accused nos. 5 & 6 excluded by the trial Court to be admissible in evidence. The Court held, ..Confessional statements having been proved to be voluntarily made and legally recorded, which generally stood corroborated, were sufficient to hold that the aforesaid persons were guilty of hatching the conspiracy with A-7 to A-13 for commission of offence with which they were charged.

81. In the matter of State of Rajasthan v. Ajit Singh & Ors. [Supra]], the Court was considering acquittal of the accused tried under the TADA. While considering the admissibility of confession recorded under Section 15 of the TADA, the Court held, ..It had, therefore, to be seen at the very initial stage as to whether the case would fall within the mischief of Sections 3 (3) and 4 (1) of the Act. It would naturally be difficult to lay down any hard-and-fast rule as to the time which should be allowed to an accused person in any given case. The accused had been in police custody for almost 45 days in each case. The record of confessions of the accused shows that 15 to 30 minutes time was given for reflection before the actual confessions were recorded. Therefore, sufficient cooling-off time had not been given to the accused, in the background that they had been in police custody over a long period of time.

82. In the matter of Lal Singh v/s. State of Gujarat and Anr.

[Supra] while considering the question of criminal conspiracy, the Hon'ble Court observed, ...It is common knowledge that such terrorist activities are carried out with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person concerned. Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of co-conspirators in pursuance of the conspiracy is hardly available. In such cases, when there is confessional statement it is not necessary for the prosecution to establish each and every link as confessional statement gets corroboration from the link which is proved by the prosecution. In any case, the law requires establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue.

83. While considering the question of conspiracy in the matter of Yash Pal Mital v/s. The State of Punjab [AIR 1977 SC 2433], the Court held, ...The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy.. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. The Court quoted with approval the case of E.G. Barsay v/s. The State of Bombay [AIR 1961 SC 1762] and held that, ..The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under S.43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.

84. In the case of State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini & Ors. [AIR 1999 SC 2640], the Court has summarized the law of conspiracy as follows :-

Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

Under Section 120A, IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt cat is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.

Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

Conspirators may, for example, be enrolled in chain A enrolling B, B enrolling C, and so on and all will be members of the single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the Court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy Court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficult in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed to Judge Learned Hand that this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders .

As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the other but the conspiracy into effect, is guilty though he intends to take no active part in the crime.

85. In the case of State of Rajasthan v/s. Kishore [1996 Cri.LJ 2003], while considering the lapse in the investigation, the Court held, ...Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account.

86. In the matter of State of W.B. v/s. Mir Mohammad Omar & Ors. [2000 Cri.LJ 4047(1)], the Court held, ...Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case.....In the present case we have not come across any such serious flaw in the investigation which had affected the case or which would have impaired the core of the prosecution case justifying or warranting the pejorative remarks made by the Division Bench of the High Court against the investigating officers.

87. In the matter of Rotash v/s. State of Rajasthan [(2006)12 SCC 64], the Court held, ...The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. The Court quoted with approval the case of Visveswaran v. State [(2003)6 SCC 73]. There it was held, ...It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The Court also quoted with approval the case of State of M.P. v. Mansingh [(2003)10 SCC 414]. There it was held, ...Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent.

88. In the matter of Krishna Mochi & Ors. vs. State of Bihar [2002 (2)SCC Criminal 1220], the prosecution arose from an incidence of mass killing of 35 people of particular community and injury to several persons. The Court considered it to be an exceptional case where life imprisonment would be an inadequate punishment and the death sentence was justified. Following the guidelines laid down in Machhi Singh v. State of Punjab [1983 3 SCC 470], the Court observed, ..[i] When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community ... [ii] When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. On the facts, the Court upheld the death sentence.

89. In the matter of Lehna v. State of Haryana [2002 SCC (Cri) 526], following the earlier judgments, the Court culled the following guidelines in respect of imposition of death sentence.

...In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

90. In the matter of Ravji alias Ram Chandra vs. State of Rajasthan [(1996)2 SCC 175], the Court confirmed the death sentence imposed upon the appellant who was convicted under Section 302 IPC and also the Court culled the decision in the matter of Dhananjoy Chatterjee v. State of W.B. (1994)2 SCC 220] with approval. In case of Dhananjoy Chatterjee, the Court held, ...In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. In the above case, the murders were committed in a brutal and barbarous manner. While considering the propriety of both sentence imposed upon the appellant, the Court observed, ...The brutality and cruelty with which the crimes have been perpetrated cannot but shock the conscience of the society.... All the said heinous crimes were committed without any provocation. The appellant was not even remorseful after the said incident of successive five murders and attempt to kill two others including the appellant's mother..... The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal .

91. In the case of Gurdev Singh & Anr. v. State of Punjab [2003 Cr.LJ 3764], the incidence was of causing death of 15 persons. The appellants were convicted and sentenced to death. Following the aforesaid guidelines, the Court confirmed the death sentence. The Court observed, ...The entire incident is extremely revolting and shock the collective conscience of the community. The acts of murder committed by the appellants are so gruesome, merciless and brutal that the aggravating circumstances far outweigh the mitigating circumstances. ... we do not think that this is a case where imprisonment for life is an adequate sentence to meet the ends of justice.

92. In the matter of People's Union for Civil Liberties & Anr. vs. Union of India [2005 SCC Cri. 1905], the Hon'ble Court has considered the legal scope and impact of the provisions contained in the POTA.

93. The evidence on record has been considered by the learned Special Judge in minute details. We, therefore, do not reiterate every minute detail of the evidence. We shall refer to only that part of the evidence that is essential for our judgment.

94. The break through in the incidence came when, upon information received by the police, Asfaq Abdulla Bhavnagari [PW-50 : Exh.312] of Ahmedabad, working at Riyadh in Saudi Arabia was rounded off and his statement was recorded by the police. The said Asfaq Bhavnagari appeared before the Court and gave evidence. According to the witness, he was a resident of Ahmedabad city; he was working at Riyadh in Saudi Arabia since 1992. He visited Ahmedabad city occasionally. He came back and resided in Ahmedabad from 1998. In January 2001, he returned to Riyadh and came back on 5th August 2003. While he was in Riyadh he had befriended many people from other parts of India like Bombay, Hyderabad, U.P. working there and of Pakistan. Every Thursday evening, they got-to-gather at the place of one Salim [accused no. 3]. The residence of Salim was also visited by one Kari Mannan Moulvi [absconding accused no.20] of Pakistan. He was working for the Sunni Muslim group 'Sippa-A-Saheba'. He had also joined 'Jaish-E-Mohammad'. The said Moulvi Kari Mannan frequently collected contribution in the name of Islam. The cassettes of the gory scenes of the communal riots of Ahmedabad were shown at the place of Salim [accused no.3]. One Maulvi Farhadulla Gori @ Abusufiyan [absconding accused no.14] and his brother Shaukatulla Ghori [absconding accused No.15] used to incite these young Muslims. They enticed these people from Gujarat to retaliate the Gujarat incidence. They declared that they were from Hyderabad and were ready to help muslims from Ahmedabad; they called upon the muslims from Gujarat to make contribution for Jihad.

95. After the WTC incidence of USA and aggression by U.S.A in Afghanistan, a public meeting was arranged in a public hall in Riyadh. The public gathering was addressed by one Abdullasha Mazhar @ Shahji [absconding accused no.19] an associate of Maulana Masud Azhar of Pakistan. The said gathering was attended by Maulana Kari Mannan, Maulana Kari Jamil, Maulvi Farhadulla Ghori of Hyderabad [absconding accused nos. 21, 21 & 14] and one Abbu Hamja [absconding accused No.17] of Lashker-E-Toiba. They made fiery speech and challenged the gathering to rise to the occasion and be ready for Jihad. They also lured the gathering by assuring the gathering that those who raised Jihad would have 70 hoors [nymphs] in the heaven and that their 72 relatives also would get heaven. They assured the assistance from Pakistan based groups Jaish-E-Mohammad and Lashker-E-Toiba and called for generous contribution in the name of Jihad. On that day, they had collected contribution of some 12,000 to 13,000 Riyals. The witness was taken to that meeting by Rasid Ajmeri [absconding accused no.4] and Salimbhai [accused no.3].

A similar gathering was again arranged after the communal riots in Gujarat and a substantial amount of contribution was collected. They offered to support expenditure to those who were ready to join Jihad and to give them training in Pakistan. From others, they demanded generous contribution. The money was collected by Salim. The said money was sent through Hawala entries to Majidbhai Patel (Vora) [absconding accused no. 9] and Iqbal Patel (Vora) [absconding accused no. 10] of Bharuch. After communal riots in 2002, Maulvi Farhadulla Ghori @ Abusufiyan [the absconding accused no.14] Shaukatulla Ghori [absconding accused no.15] came to Ahmedabad and visited the relief camps. After going back to Saudi Arabia, these two again collected the contribution. While in India, they had met Adambhai Sulemanbhai Ajmeri [accused no.2]. Thereafter, the incidence of Akshardham had happened. After a few days, a meeting was held and it was disclosed that the attack was organized by Jaish-E-Mohammad and that the attack was carried on for some twelve hours and that the attackers had become the martyrs. He identified the accused no. 1 Altafhussain Akbarhussain Malek and the accused no. 3 Mohmed Salim Mohmed Hanif Shaikh.

The witness admitted the confession Exh.539 made under Section 164 CrPC before the Judicial Officer Shri V.R Raval [PW-73].

He withstood the cross examination by the defence lawyers. He denied that his statement was recorded on 20th August 2003 or that he was in custody of the Crime Branch from 6th August 2003 to 20th August 2003.

96. Abdul Raheman Gulamhussain Panara [PW-51: Exh.314] in his examination-in- chief supported the prosecution case. He admitted that he, Maulvi [accused no.5], Muftisaab [accused no. 4], Khalid and others had started a relief camp at Bavahir Hall. He admitted that Nasir Doman and his friend Adam [accused no.2] had visited the Bavahir Hall to convey the message received from his brother Rashid residing in Saudi Arabia. He [accused no.2] had informed that his brother Rashid had learnt about the loss suffered by the muslims in Ahmedabad and wanted to help them. Since then, Adam frequently visited Bavahir Hall. He collected the telephone number of the residence of Nasir Doman for local contact for his brother Rashid residing in Saudi Arabia. He admitted Adam having talked to some person in Saudi Arabia; he too had a talk to that contact in Saudi Arabia and upon being asked, he had asked for assistance of Rs. 20 lakhs. He admitted Nasir Doman receiving Rs. 5,000/= from Ahmed the brother of Adam [accused no.2] for purchase of a mobile phone. The deponent had also received Rs. 5000/= from Ahmed. The said Ahmed had instructed the deponent to make arrangements for stay of his guests in Ahmedabad for some 15 days to a month. Once again, Adam [accused no.2] had given him Rs. 5,000/= and requested him to make arrangement for lodging, boarding and transportation of his guests [the Fidayins] in Ahmedabad. At that time, Adam had told the deponent that the guests would recci Hindu areas and would kill people. Mufti Abdulkayum and Maulvi Abdulmiya [accused nos. 4 & 5] were aware of these developments and encouraged the deponent to do as was told. He then received another Rs.10,000/= from Adam [accused no.2]. He admitted to have rented a house in Dani Limda and of arranging mattresses, fan, water, etc., in that house. As the deponent did not receive the phone call on the cell phone given to him, the cell phone was returned to Adam and the Adam [accused no.2] had also demanded money given to the deponent. The deponent returned the money in small instalments. He admitted that Adam [accused no.2] had told him that guests from Hyderabad had arrived; had gone around the City and had returned back. He also admitted that Maulana Abdullamiya [accused no. 5] Muftisaab [accused no.4] had informed him about the guests having arrived and assured that there would be a victory. He identified Muftisaab [accused no. 4], Maulana [accused no.5] and Adambhai [accused no.2] in the court-room.

He admitted the confession Exh. 540 made by him under Section 164 CrPC before the Judicial Officer Shri V.R Raval [PW-73].

97. It may be noted that this witness was examined on 15th July 2005. In his cross examination on 25th July 2005, he took a somersault and made a totally contradictory statement. In the cross examination, he said that he was detained by the Police in custody for sixty days; he was beaten by the police and was tortured; he had suffered fracture on the thumb; he had given evidence under coercion and duress. He denied meeting accused no.4-Abdulkayum @ Muftisaab Mohmedbhai Mansuri and accused no.5-Abdullamiya Yasinmiya Kadri. He denied the statements made in his evidence.

The witness was declared hostile. In the cross examination by the prosecution, he admitted confessional statement Exh.540. He admitted that neither he nor any one else made complaint about illegal detention or the ill-treatment by the police. He admitted that he did not complain about his illegal detention by the police or the police atrocity to the judicial officer Shri V.R Raval [PW-73].

98. The witness Mohmed Munaf Hajimiya Shaikh [PW-52 :: Exh. 315] knew Adambhai Ajmeri [accused no.2] Abdulkayum @ Muftisaab Mohmedbhai Mansuri [accused no.4] and Abdullamiya Yasinmiya Kadri [accused no.5].

He gave evidence about the relief camp run at Bavahir hall by the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri and accused no.5 Abdullamiya Yasinmiya Kadri. He admitted meeting the accused no.2 Adambhai Sulemanbhai Ajmeri and the accused no.5 Abdullamiya Yasinmiya Kadri. He was informed by the accused no.2 Adambhai Sulemanbhai Ajmeri that his brother Abdulrashid Sulemanbhai Ajmeri [absconding accused no.4] in Saudi Arabia and his contact Salimbhai were to send money, weapons and the guest [the Fidayins] for wreaking havoc [Kand]; that Abdullamiya Yasinmiya Kadri [accused no.5] and Mufti Abdulkayum [accused no.4] advised Adambhai Sulemanbhai Ajmeri [accused no.2] to go ahead with the plan. He had given telephone number of Doman to Adambhai Ajmeri [accused no.2]. He identified accused no.2 Adambhai Sulemanbhai Ajmeri, accused no. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri and accused no.5 Abdullamiya Yasinmiya Kadri in the Court-room.

The witness admitted the confessional statement Exh.541 made under Section 164 CrPC before the Judicial Officer Shri V.R Raval [PW-73].

He withstood the cross examination. He denied that he had given statement under threat or duress by the police.

99. PW-56 Abdul Wahid [Exh.325] admitted that on 24th April 2002 he had gone to Hyderabad with Adam Ajmeri [accused no.2]. In Hyderabad, they met Khalid [absconding accused no. 16]. The said Abdul Raheman @ Abu Talah @ Khalid had made arrangement for their lodging at Hotel G-Royal. He also admitted meeting Ayub [absconding accused no.23] at Hyderabad. He admitted the disputed signature in the hotel register [muddamal article 129] and the specimen signature [muddamal article 131]. He admitted the confession Exh.543 made under Section 164 CrPC. He identified the accused no.2-Adam Ajmeri in the Court-room.

He withstood the cross examination by the defence lawyer. He denied that the statement made under Section 164 CrPC was given by him under pressure or duress or coercion. He denied that he was giving evidence under threat by the police.

100. PW-82 Mehboob-e-Ilahi Abubakar Karimi has admitted transfer of money through him. He admitted the payment made to Adam Ajmeri [accused no.2]. He identified the muddamal Diary [Article 106] and the entries Exhs. 477 & 478 made in respect of the aforesaid transfer of money.

101. PW-97 Sevakram Bulaki [Exh. 563], the owner of the Hotel G.Royal Lodge, Hyderabad supported the prosecution. He admitted allotment of Room no. 322 to two persons named Abdul Shaikh and A.S Shaikh who came from Ghatkopar, Bombay on 26th April 2002. He admitted entry Exh.326 made in the entry register.

102. On 17th September 2003, the accused no. 1 Altafhussain Akbarhussain Malek made statement Exh. 456 before the Deputy Commissioner of Police, Zone-IV, Ahmedabad under Section 32 of the POTA. He admitted before the police that he was a resident of Shahpur area of Ahmedabad City and was working at Riyadh in Saudi Arabia. He admitted that he and other muslims from Gujarat working at Riyadh used to gather every Thursday at the residence of Mohmed Salim [accused No.3]. He admitted that one Karim Annan Moulvi [absconding accused no.20], native of Pakistan also used to attend those meetings and exhorted others to work for Islam. He collected funds in the name of Islam; he was connected with Pakistani Jihadi group Sippa-E-Saheba and also became a member of Jaish-E-Mohammed . Maulvi Farhadulla Ghori [absconding accused no.14] and his brother Shaukatulla Ghori [absconding accused no. 15]-native of Hyderabad also attended the said meetings. During the communal riots in Gujarat, after 27th February 2002 Sabarmati Express carnage at Godhara, the said Maulvi Farhadulla Ghori and Shaukatulla Ghori [absconding accused nos. 14 & 15] made aggressive statements to retaliate the communal riots to teach a lesson to Hindus. They told others to be ready for a grave incidence and to contribute funds. Altafhussain Akbarhussain Malek [accused no.1], Abdulrashid Ajmeri [absconding accused no.4], Mohmed Salim [accused no.3], Maulvi Farhadulla Ghori [absconding accused no.14] and Abdul Raheman [absconding accused no.16] had decided to retaliate the loss suffered by the Muslims in the communal riots, to send weapons. They also appealed to the other muslims to make generous contribution. They held programme attended by Abdullasha Mazhar [Shahji] {absconding accused no.19} an associate of Maulvi Masud Azhar of Jaish-E-Mohammed ; Karim Annan [absconding accused no.20] made inciting and enticing statements and appealed to send contribution to Jaish-E-Mohammed .

103. Altafhussain Akbarhussain Malek [accused no.1] and Mohmed Salim [accused no.3] had accepted the leadership of Gujarat group. Those who could not make contribution were instigated to fight out and earn martyrdom. Altafhussain Akbarhussain Malek [accused no.1], Mohmed Salim [accused no.3] and Abdulrashid Suleman Ajmeri [absconding accused no.4] explained what Jihad was. He admitted to collecting contribution and passing over the funds to Maulvi Farhadulla Ghori [absconding accused no.14]. He admitted that during that period Abdul Raheman [absconding accused no.16] had visited India twice; he had given Jihadi training to the young muslims in the relief camp; had called Adambhai Ajmeri [accused no.2] to Hyderabad. He was aware that Maulvi Farhadulla Ghori [absconding accused no.14] and Mohmed Salim [accused no.3] were making plan to retaliate in a huge way.

104. The confession made by the accused no.1- Altafhussain Akbarhussain Malek is corroborated by the evidence of Deputy Commissioner of Police-Shri Sanjay Gadhvi [PW-78]; Chief Judicial Magistrate Shri S.M Padhya [PW-99]; the evidence of Asfaq Bhavnagari [PW-50] and his confession Exh. 539 made under Section 164 CrPC.

105. The accused no.2 Adambhai Sulemanbhai Ajmeri made confession Exh.458 before the Police on 24th September 2003 under Section 32 of the POTA. He admitted his being in contact with his brother Abdulrashid Suleman Ajmeri [absconding accused no. 4] and the Mohmed Salim [accused no.3]. He admitted receipt of fund and calls from Abdul Rashid from Saudi Arabia. He admitted that Abdul Rashid [absconding accused no.4] and the others in Saudi Arabia had a plan to retaliate the loss suffered by the muslims during the communal riots in Gujarat; that Abdul Rashid [absconding accused no.4] had asked him [accused no.2] to make suitable arrangements and that he [accused no.2] had made local arrangements. He admitted the involvement of Abdulkayum [accused no.4] and Abdullamiya Yasinmiya Kadri [accused no.5]. They [accused no. 2 and others] agreed to cooperate in carrying out the plans made in Saudi Arabia under the guidance of the accused nos. 4 & 5. He [accused no.2] gave the telephone numbers of his contacts. He [accused no.2] had received money; had travelled to Hyderabad with one Wahidbhai Shaikh. In Hyderabad, he had met one Abdul Raheman @ Abu Talah @ Khalid [absconding accused no.16]. He had stayed in Room no. 322 at Hotel G-Royal in the name of A.S Shaikh. He had met Abdul Raheman @ Abu Talah @ Khalid and one Ayub @ Doctor-1 [absconding accused no.23]. The said two absconding accused had informed him [accused no.2] that two terrorists [Fidayins] would reach Ahmedabad with weapons and that he [accused no.2] shall attend to the Fidayins and make necessary arrangements. The Fidayins were referred to as the Guests. The next day, he came back to Ahmedabad. Abdulkayum Mansuri [accused no.4] and Abdullamiya [accused no.5] were informed about the progress. He admitted he had received Rs.10,000/= from Saudi Arabia through Mehboob Ilahi [PW-82]. He had given Rs. 5,000/= to Nasir Doman to purchase two mobile phones and had given Rs. 5,000/= to Abdul Raheman [PW-51] for arrangement of a house. He had received Rs. 50,000/= in the month of June 2002. Out of that, he had paid Rs. 20,000/= to Ilahi [PW-82] and Rs. 15,000/= to Raheman [PW-51]. All throughout, he continued to be in contact with the muslims in Saudi Arabia. He arranged for a vacant house, mattresses, water, fan, etc for the Fidayins [the guests]. He [accused no.2] admitted he had received Ayub [absconding accused no.23] and the Fidayins. He had accommodated them in the house of his brother Habib @ Abbas. Ayub had introduced himself as Doctor No.1 and the Fidayins were referred to as Doctor-2 and Doctor-3. The Doctor 2 was a lean man of 5' 8 of the age of 25 years and the Doctor-3 was a short person. All the three were brought to Bavahir Hall and were introduced to accused nos. 4 & 5. He admitted to have taken auto-rickhaw no. GRW-3861 and to have taken the guests [absconding accused no.23 and the Fidayins] to various places in and around the City of Ahmedabad. None of the said places was considered suitable for the terrorist attack. He had gathered from Ayub the name of Doctor 2 was Murtuza and the name of Doctor 3 was Ashraf. The next day, he took them to Gandhinagar. The guests had gone around the Akshardham Temple for around two hours. On 24th September 2002 in the afternoon he took auto-rickshaw no. GRW-3861 to Bavahir Hall where the guests were present. After the afternoon namaaz, the accused no.4 & 5 performed namaaz for Fidayins [Doctor-2 viz., Murtuza @ Abdulla @ Hafiz Yasir & Doctor-3 viz., Ashrafali @ Shakil @ Mohmed Faruk]. The Fidayins were dispatched to Railway Station and Adambhai Ajmeri [accused no.2] took Doctor-1 [Ayub absconding accused no. 23] to Gandhinagar in an auto-rickshaw. He and Ayub entered the temple and had waited in the entertainment area. They saw the Fidayins [Doctor-2 & Doctor-3] entering the temple over the Gate No.3. They immediately left the temple. They heard the firing and the screams of the injured people and came back to Bavahir Hall. The accused nos. 4 & 5 were waiting for the news. The accused no.2 took Ayub [absconding accused no.23] to the Kalupur Railway Station and arranged for a taxi for Ayub [absconding accused no.23] to leave for Baroda.

106. The accused Adam Ajmeri admitted the confessional statement Exh.458 made before the Police before the Chief Judicial Magistrate Shri S.M Padhya [PW-99 : Exh.568].

The aforesaid confession made by the accused no.2-Adambhai Sulemanbhai Ajmeri is corroborated by the evidence of Deputy Commissioner of Police-Mr. Sanjay Gadhvi [PW-78 Exh. 452]; of Chief Judicial Magistrate Mr. S.M Padhya [PW-99 : Exh. 438]; of PW-50 Asfaq Bhavnagari [Exh.312] and his Statement Exh. 539 made under Section 164 CrPC; of PW-51 Abdul Raheman Gulamhussain Panara [Exh.314] and his Statement Exh. 540 made under Section 164 CrPC; of PW-52 Mohd. Munaf @ Munnabhai Radiator [Exh.315] and his statement Exh. 541 made under Section 164 CrPC; of PW-56 Abdul Wahid Abdul Hakim Shaikh [Exh.325] and his statement Exh.549 made under Section 164 CrPC; by the entry Exh.326 made in the entry register of Hotel G.Royal Lodge, Hyderabad; by the evidence of PW-82 Mehboob-e-Ilahi Abubakar Karimi [Exh. 476] and his statement Exh. 548 made under Section 164 CrPC; by the evidence of PW-98 Mohd. Jaffarkhan Pathan [Exh. 564], the proprietor of Decent Travels, Hyderabad. He admitted that on 26th April 2002 two persons in the name of Ashraf and party had travelled in his bus from Hyderabad to Bombay. He identified the Bill No. 2292 [muddamal Exh. 566]; by the evidence of PW-108 Ismail Pirubhai Mevati [Exh. 609]. The said Ismailbhai was in the business of decoration. He had supplied the mattresses, fan, etc., at the house in Dani Limda rented by Adam Ajmeri [accused no.2].

107. The accused no.3 Mohmed Salim Mohmed Hanif Shaikh made statement Exh.454 under Section 32 of the POTA on 17th September 2003 before the Police. He admitted that he was working at Riyadh in Saudi Arabia; that he had returned to India in June 2002 and in January 2003. He admitted making friends in Riyadh with other muslim people native of Mumbai, Hyderabad, and of Pakistan. He was introduced to Kari Mannan Moulvi [absconding accused no.20] a member of Sippa-E-Saheba . He being a Sunni, had joined Sippa-E-Saheba at the instance of Mustakim and Karim [absconding accused nos. 12 & 20]. He was introduced to Maulvi Farhadulla Ghori @ Abusufiyan and Shaukatulla [absconding accused nos. 14 & 15], the members of Jaish-E-Mohammed . He admitted that muslims from Ahmedabad used to gather at his residence in Riyadh every Thursday. He used to sell Jihadi literature.

108. Since the attack on WTC in USA and since the Afghanistan aggression by USA, the Jaish-E-Mohmed had arranged a programme [a public meeting]. Mustakim [absconding accused no.12] and Abusufiyan [absconding accused no.14] had approached him [accused no. 3] at his residence and had insisted that the accused no. 3 and his friends should attend the meeting. He [accused no.3], Asfaq Bhavnagari [PW-50]; Rasid Ajmeri [absconding accused no.4], Altaf Hussain [accused no.1] and others had attended the meeting. Kari Mannan Moulvi, Kari Abduljamil, Kari Sharif, Maulvi Farhadulla Ghori @ Abusufiyan, Shaukatullah Ghori [absconding accused nos.20, 21, 22, 14 & 15], the leaders of the programme had remained present and had made fiery speech against the USA and for Islam. They asked for funds for Jihad to retaliate and to assist the Taliban and had collected a huge contribution. He [accused no.3] also had made the contribution.

109. After the Godhra incidence, after two weeks of communal riots Mustakim and Sufiyan [absconding accused no.12 & 14] had approached him [accused no.3], Rashid [absconding accused no. 4] and Altaf [accused no.1] to appeal to them to collect contribution for programme in connection with the loss suffered by the Muslims in communal riots in Gujarat. They [accused no. 3 and others] were worried and agitated by the news of loss of life and property of the muslims in Gujarat. They were shown the cassettes of the gruesome scenes of the dead bodies of the muslim men, women and children and the Hindus armed with weapons at his [accused no.3] residence. He [accused no.3] and Rasid Ajmeri [absconding accused no.4] and others from Ahmedabad had decided to raise funds. At the instance of Abu Sufiyan [absconding accused no.14], they had become members of Jaish-E-Mohammad . At the instance of Abu Sufiyan [absconding accused no. 14], a programme [public gathering] was arranged at Sifa. He [the accused no. 3] and Abdulrashid Suleman Ajmeri [absconding accused no. 4] had taken leadership of the young people from Ahmedabad and had distributed pamphlets. In that programme, Abu Sufiyan, Abu Talah, Kari Mannan, Kari Jamil, Kari Sharif [absconding accused nos. 14, 16, 20, 21 & 22] had remained present. They had addressed the gathering, explained the meaning of Jihad . They made fiery speech to rise for muslim community, to join them to fight and to die. They offered to give training in the training camp in Pakistan. The cassettes of the leader of Jaish-E-Mohammed Maulana Masud Azhar were played. Many people had attended that programme and huge fund was collected.

110. Pursuant to the success of that programme, they [accused no.3 and absconding accused no. 4] took the leadership and decided to collect fund to arrange programmes for retaliation. He [accused no.3] made copies of cassettes of Jihadi speech brought by Abu Sufiyan. He [accused no.3], Abdulrashid Suleman Ajmeri [absconding accused no.4] and Altafhussain Akbarhussain Malek [accused no.1] sold the cassettes. He admitted the plan made to retaliate the communal riots in the State of Gujarat; maintaining contact with young muslims in Ahmedabad; arranging the gatherings attended by the muslims from Gujarat; addressed by Farhdulla and Shaukatullah [absconding accused nos.14 and 15] and by Karim Annan Moulvi [absconding accused no.20], Kari Abduljamil [absconding accused no. 21] and Kari Sharif [absconding accused no. 22] : a native of Pakistan. He admitted hatching of conspiracy to retaliate the loss suffered by the muslim in the communal riots; of involvement of Adam Ajmeri [accused no.2]; sending money to Adam Ajmeri; meeting Abdul Raheman @ Abu Talah @ Khalid [absconding accused no. 16] at Hyderabad; and Abdul Raheman @ Abu Talah @ Khalid having arranged for the Fidayins. He admitted that the Maulvi Farhadulla Ghori @ Abusufiyan [absconding accused no. 14] had sent sum of Rs. 50,000/= to Adam Ajmeri [accused no.2] by Havala entry through Iqbal Patel (Vora) [absconding accused no. 10]. He admitted making contribution for the Akshardham attack.

He was produced before the Chief Judicial Magistrate Shri S.M Padhya [PW-99] on 18th September 2003. He admitted the confession Exh.454 made by him. He had no complaint against the Police.

111. The confession made by the accused no.3 Mohmed Salim Mohmed Hanif Shaikh is corroborated by the evidence of PW-50 Asfaq Abdullabhai Bhavnagari [Exh. 312] and his statement Exh.539 made under Section 164 CrPC; the evidence of PW-52 Mohmed Munaff Hajimiya Shaikh [Exh. 315] and his statement Exh. 541 made under Section 164 CrPC; evidence of [PW-82]-Mehboob Ilahi Karimi [Exh.476] and his statement Exh.548 made under Section 164 CrPC; the evidence of Shri Sanjay Gadhvi [PW-78] and the evidence of Shri S.M Padhya [PW-99].

112. On 24th September 2003, the accused no. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri made statement Exh.460 under Section 32 of the POTA before the Deputy Commissioner of Police-Shri Sanjay Gadhvi (PW-78). He admitted that he was the Imam in Haji Shakil Mosque and a teacher in Madressa. He knew Gujarati, Hindi, Urdu & Arabic languages a little Persian and English also. He admitted his involvement in the incidence of terrorist attack on Akshardham temple. He admitted that during the communal riots after Sabarmati Express carnage at Godhara, he was running a relief camp at Bavahir Hall; that the community leaders frequenting the camp were enraged and agitated on account of the sufferings of the muslims; that Nasirkhan @ Doman Pathan and his friend Adambhai [accused no.2] had visited the camp and had informed, in presence of Moulvi Abdulla [accused no.5], that one Rashid residing at Riyadh in Saudi Arabia the brother of Adambhai had sent a message for the muslims. Adambhai [accused no.2] had informed him about the retaliation plan by the Gujarat muslims in Saudi Arabia and that the terrorists' group would arrange for the funds, weapons and Fidayins for the massacre [Hatyakand] in the congested Hindu area and; that they were requested to arrange for lodging, boarding and transportation of the Fidayins. He [the accused no.4] had agreed to guide others and to arrange for necessary facilities; that they used to meet at Bavahir Hall and discuss the matter. During that time, they were constantly in contact with Saudi Arabia; that they had exchanged the telephone numbers. During that time, Abdul Raheman [absconding accused no.16]-leader of the terrorist group had visited India and had invited Adambhai [accused no.2] to meet him at Hyderabad. Adambhai had gone to Hyderabad with one Wahid. He was given money for the expenditure. He admitted receipt of Rs. 5,000/= through one Ilahi [PW-82] for purchase of a mobile phone, renting a house for the guests [absconding accused no.23 and the Fidayins], to help equip the house for the stay of the guests. However, the guests did not arrive as scheduled. Once again, message was received in the month of September that the guests would arrive within a short while. This time, the guests were lodged in the house of one Habib the brother of Adambhai [accused no.2]. The guests were received at the Kalupur Railway Station, and brought to Bavahir Hall. Adambhai [accused no.2] arranged auto-rickshaw No. GRW-3861 to take the guests around the city. They made survey of several congested places in the city. They also made recci of Gandhinagar. Ultimately, selected Akshardham to carry out their ill-will of striking terror attack against Hindus. The next day, Ayub @ Doctor-1 [absconding accused no.23] visited Bavahir Hall and informed Abdulkayum @ Muftisaab [accused no.4] that the weapons were received; that on the next day, the Fidayins [Doctor-2 & Doctor-3] would come to Bavahir Hall for namaaz. Both be sent to Akshardham separately. He [absconding accused no.23] instructed the accused no.4 to write two notes in Urdu in the name of the group Taheri-E-Kissa Gujarat indicating that the carnage [Hatyakand] was the retaliation of the loss suffered by the Muslims in communal riots. The accused no.4 Muftisaab wrote the Urdu write ups in his own hand.

113. On 24th September 2002, Adambhai [accused no.2] went to Bavahir-Hall in auto-rickshaw No. GRW-3861. At that time, Do-Rakat-Nafal Namaaz was performed for the success and the well being of the Fidayins, prayer was also offered for a place in heaven for the Fidayins, in case they martyred. Each was given paper written in Urdu. The pen was also given over to the Fidayins. Ayub [absconding accused no.23] went to Akshardham with Adambhai [accused no.2] in auto-rickshaw No. GRW-3861. The Fidayins went to the railway station in another auto-rickshaw. He admitted that Adambhai Ajmeri and Ayub [accused no.2 & absconding accused no.23] had returned to Bavahir Hall and confirmed that the Fidayins had reached Akshardham temple with weapons and had opened firing at the people. Adam Ajmeri [accused no.2] had arranged a taxi for Ayub [absconding accused no.23] for Vadodara. He had recognized the Fidayins from the photographs of their dead bodies and also the Urdu writing [Exh.658] recovered from the body of the Fidayins.

114. The accused no. 4 Abdulkayum admitted the aforesaid confession made before the Police before the Chief Judicial Magistrate-Shri S.M Padhya [PW-99] on 25th September 2003.

115. The above confession made by the accused no. 4 is supported by the evidence of PW-51-Abdul Raheman Panara [Exh.314] and his Statement Exh.540 made under Section 164 CrPC; of PW-52-Mohammed Munaff Haji Miya Shaikh [Exh.315] and his statement Exh.541 made under Section 164 CrPC and the panchnama Exh.681; of PW-121 Gulam Mohammad Yusufmiya Malek [Exh.657] and the Urdu write up read out by him and transcribed in Gujarati script [Exh.775]. The said witness Malek Bapu was called after three days of the incident to read out and explain the Urdu writings; of Deputy Commissioner of Police-Shri Sanjay Gadhvi [PW-78]; of Chief Judicial Magistrate Shri S.M Padhya [PW-99]; of handwriting Expert Shri JJ Patel [PW-89]; Expert Opinion [Exh.511]; Panchnama Exh.681.

116. On 5th October 2003, the accused no.6 Shaanmiya @ Chandkhan Sajjadkhan made confession Exh.462 under Section 32 of the POTA before the Deputy Commissioner of Police-Shri Sanjay Gadhvi. He admitted that he was a mechanic. That he had opened a Garage in the name of Chand Motors at Anantnag. He admitted purchase of Ambassador car No. KMT 413 for Rs. 35,000/= and taking it to the terrorist Zuber at Mazgaon [Kashmir]. Zuber gave him a sum of Rs. 40,000/= and instructed the accused no.6 to make a cavity under the rear seat. The accused no. 6 made concealed cavity, as instructed. On instruction from Zuber, he took the car to Bareily. Goods [the weapons] were loaded in the car. On way to Bareily, the car was stopped near jungle and the goods were transferred from the boot of the car to the concealed cavity. He narrated how the weapons were brought to Bareily, were removed from the car and concealed in the mattresses and packed in a suitcase and a holdall. He and Sakir brought the weapons from Bareily to Ahmedabad by railway train. At Ahmedabad they stayed at Hotel Gulshan. He gave his name as Chandkhan Sajjadhkhan of Bareily and marked his signature in the register. The next day, he was told that the weapons were brought for the attack on Akshardham temple. He was given Rs. 7,000/= and told to return back to Bareily. From Ahmedabad, he took a bus to Jaipur. From Jaipur, he went to Delhi and from Delhi he went to Bareily by Bus. After a few days, Zuber called him to Mazgam [Kashmir] and gave him Rs.30,000/=.

He admitted the aforesaid statement made before the Police, before the Chief Judicial Magistrate Shri S.M Padhya [PW-99] before whom he was brought on 6th October 2003.

The above confession Exh.462 of the accused no.6 Shaanmiya @ Chandkhan Sajjadkhan is corroborated by the evidence of PW-57 Yusuf Gandhi [Exh. 328] and his statement Exh.550 made under Section 164 CrPC.

117. The presence of the accused no.6-Shaanmiya in Bareily at the relevant time is proved by PW-69 Minhas Asfaq Ahmed [Exh.392]. The said witness has deposed that he was a resident of Bareily. He was dealing in the motorcycle spare-parts. He had a shop near the Garage Das Motors . He knew Chandkhan [accused no.6] for last 10 years. He admitted that an year ago, Chandkhan had met him at Bareily; he had brought a blue colour Ambassador Car for repairs at Das Motors; the Car was kept there for two-three days. He identified the accused no.6-Chandkhan in the Court-room; by the evidence of PW-94 Sanjiv Damodar Arya [Exh.531]. The said Sanjiv Damodar Arya was running a garage named Das Motors at Bareily. The accused Shaanmiya had brought a car for repairs to Das Motors. He identified the accused no.6-Chandkhan in the Court-room; by evidence of PW-93 Dr. Sudhanshu Arya [Exh.529]. Dr. Arya is a medical practitioner at Bareily. He had given treatment to Ekra, the daughter of the accused; by evidence of PW-124 Gulammohammad Dar, PSI Kupwada [J&K] [Exh.673]. The muddamal car no.KMT-413 was seized under Panchnama Exh. 671 on 11th October 2003 in presence of the said witness. By evidence of PW-104-Natwarbhai Fakirchand Kahar [Exh.590] and the panchnama Exh.591, the witness identified the accused Chandkhan in the court-room; by the evidence of PW-60 Prahladbhai D. Marwadi [Exh.341] and the panchnama Exh. 342; by the FSL report Exh.688.

118. The complicity of the accused no. 5- Abdullamiya Yasinmiya Kadri is proved by the evidence of PW-51 Abdul Rehman Panara [Exh. 314]; his statement Exh. 540 made under Section 164 CrPC; evidence of PW 52 Mohammed Munaf Hajimiya Shaikh [Exh. 315]; his statement Exh. 541 made under Section 164 CrPC; the evidence of PW-61 Bhikhabhai Thakore [Exh. 343]; the panchanama Exh. 681.

119. We shall first examine the admissibility of the confessional statements made by the accused no.1 Altafhussain Akbarhussain Malek [Exh.456]; by the accused no. 2 Adambhai Sulemanbhai Ajmeri [Exh. 458]; by the accused no.3 Mohmed Salim Mohmed Hanif Shaikh [Exh.454]; by the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri [Exh.460] and by the accused no.6 Shaanmiya @ Chandkhan Sajjadkhan [Exh.462] and their probative value.

120. The aforesaid confessional statements were made by the accused persons under Section 32 of the POTA before one Shri Sanjay Gadhvi, Deputy Commissioner of Police [Zone IV], Ahmedabad. The said Shri Sanjay Gadhvi has been examined by the prosecution [PW-78 : Exh.452]. The said Shri Sanjay Gadhvi has given evidence about the manner in which the confessional statements were recorded. He has identified and proved the confessional statements Exhs. 454, 456, 458, 460 and &

462. He has deposed before the Court that on 16th September 2003, he had received message from the Ahmedabad City Crime Branch that two persons arrested in respect of the incidence of the Akshardham attack at Gandhinagar had volunteered to make confessional statements; that the said persons were brought before the deponent on 17th September 2003 in company of two officials from the City Crime Branch for recording their statements. The deponent sent back the officials from the City Crime Branch who had accompanied the accused. He first called the accused no.3 Mohmed Salim in his office. The deponent explained to the said Mohmed Salim the provisions contained in the POTA and that the statement made by him may be used against him and that he was not bound to make such statement. This explanation was also given to the said Mohmed Salim in writing [Exh.453]. From the demeanour of the said Mohmed Salim, the deponent gathered that the said Mohmed Salim was not ill-treated or pressurized or oppressed. The deponent ascertained from the said Mohmed Salim that the said Mohmed Salim was well acquainted with the Gujarati language and that he desired to give statement in gujarati. The said Mohmed Salim was explained that the deponent was not the member of the City Crime Branch and that he was not connected with the investigation in respect of the incident under investigation; that he was a police officer equivalent to the rank of Superintendent of Police from another area; that the said Mohmed Salim was not required to give statement under apprehension of any kind. It was ascertained that the said Mohmed Salim had volunteered to make statement of his own volition and not under duress, coercion or temptation. Having ensured of the free will of the accused, the deponent allowed the said Mohmed Salim around 15 minutes of solitude and quietude to ponder over his decision to make confessional statement. After 15 minutes, the said Mohmed Salim confirmed that he wanted to make the statement out of the sense of guilt and after considering the implication of making such statement. The statement was recorded by the writer as given by the said Mohmed Salim; it was endorsed by the said Mohmed Salim and was countersigned by the deponent Sanjay Gadhvi. After recording the statement also, the said Mohmed Salim was informed that he may still decide not to make the statement and that he was free to decide whether or not to make the statement. Thus, the willingness of the said Mohmed Salim Mohmed Hanif Shaikh to make the confessional statement was ascertained - first when he was brought before the deponent, then after giving him some time to ponder over his decision and third after the said Mohmad Salim made the statement and signed it.

121. The said Sanjay Gadhvi recorded the confessional statement of the accused no. 1 Altafhussain Akbarhussain Malek [Exh. 456] in the same manner. He was explained the implications of the confessional statement made before the Police Officer under Section 32 of the POTA in writing Exh.455. He also recorded the confessional statement Exh.458 of the accused no. 2 Adambhai Sulemanbhai Ajmeri and statement Exh.460 of the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri. The accused no.2 and the accused no.4 were brought before him on 24th September 2003 by the City Crime Branch. Both of them were explained the implications of the confessional statement made before the police officer under Section 32 of the POTA in writing Exhs.457 & Exh.459 respectively. The said Sanjay Gadhvi has also deposed that the said statements were signed by the makers of the statements, the signatures of the maker of the statement on each page of the statement was counter signed by the deponent. The statements recorded under Section 32 of the POTA were put in a sealed envelope and were handed over to the officers of the Crime Branch with a direction to produce the statements and the makers of the statements before the learned Chief Judicial Magistrate within forty eight hours. The telephonic instruction was given to the Superintendent of Police Mr. Singhal. Mr. Singhal was also instructed to inform the deponent Sanjay Gadhvi as and when the accused and the confessional statements made by them were produced before the Chief Judicial Magistrate. The confessional statement Exh.462 of the accused no. 6 Shaanmiya @ Chandkhan Sajjadkhan was recorded by the said Sanjay Gadhvi on 5th October 2003. The said Shaanmiya @ Chandkhan Sajjadkhan was explained verbally and in writing in Hindi Exh. 461, the implication of the statement made before the police officer under Section 32 of the POTA and that he was not required to make such statement. The said Sanjay Gadhvi ascertained that the said Shaanmiya @ Chandkhan Sajjadkhan had volunteered to make the statement; that he had not agreed to make the statement under duress or coercion or temptation; that the statement was made out of the sense of guilt. The said Shaanmiya @ Chandkhan Sajjadkhan was also given around 10 minutes time to ponder over his decision to make the statement. The said Shaanmiya @ Chandkhan Sajjadkhan had expressed his willingness to make the statement in Hindi and accordingly the Statement Exh. 462 was recorded in Hindi.

122. Mr. Majid Memon has heavily relied upon this evidence. He has submitted that the deponent Sanjay Gadhvi recorded the above referred confessional statements mechanically, without having regard to the procedural safeguards provided under Section 32 of the POTA or those considered mandatory by the Hon'ble Supreme Court in the above referred judgments.

123. We are afraid, we are unable to agree with Mr. Majid Memon.

It is under Section 32 of the POTA, the confessional statement made by an accused before the Police Officer not below the rank of the Superintendent of Police is, notwithstanding anything in CrPC or in the Indian Evidence Act, 1872, made admissible in evidence against the accused making the statement. The procedural safeguards are inbuilt in the provisions contained in sub-sections 2, 3, 4 and 5 of the said Sec.32. The said Section 32 reads as under :-

32.

Certain confessions made to police officers to be taken into consideration -

[1] Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 [1 of 1872], but subject to the provisions of this section, a confession made by a persons before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.

[2] A police officer shall, before recoding any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him;

Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession.

[3]

The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.

[4] The person from whom a confession has been recorded under sub-section (1), shall be produced before the Court of a Chief Metropolitan-Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within forty eight hours.

[5] The Chief metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to Judicial custody.

124. Let us first examine whether the provisions contained in the aforesaid Section 32 of the POTA were scrupulously followed while recording the confessional statements Exhs. 454, 456, 458, 460 and 462 by the PW 78-Shri Sanjay Gadhvi.

125. It is not in dispute that Shri Sanjay Gadhvi [PW-78] was a Police Officer of the rank of Superintendent of Police. As it emerges from his evidence, each accused making the statement was explained in writing about the implication of the statement he was going to make before the police officer and that he was not bound to make such statement. Each accused making such statement was given 10 to 15 minutes of solitude to ponder over his decision to make the confessional statement. The deponent Sanjay Gadhvi had ascertained from each of the said accused that he was willing to make the confessional statement and that he was not under duress or coercion or was not lured to make such statement. Even after recording the statements, each of the said accused was again explained the implication of the statement made by the concerned accused and was enquired whether he still wanted to make the confessional statement. Each of the said accused was also informed that he need not be under any apprehension should he decide not to make the confessional statement. In our opinion, the mandatory procedure provided under Section 32 of the Act of 2002 and the procedural safeguards enumerated by the Hon'ble Supreme Court in the above judgments had been satisfactorily complied with by the deponent Sanjay Gadhvi.

126. We do agree with Mr. Majid Memon that may be the environment or the conditions were not ideal for recording the confessional statements. May be that ideally the confessional statement were recorded in a special room fitted with modern gadgets especially designed for the purpose. But until such special arrangements are made, the lack of ideal situation in itself would not render the confessional statements made by the accused, recorded by an authorized police officer after properly following the procedural safeguards, inadmissible in evidence.

127. Mr. Majid Memon has also joined issue in respect of the accused being sent to the police custody after recording their confessional statements. Mr. Memon has submitted that it was imperative that once the confessional statement was recorded, the accused ought to have been sent to the judicial custody. He could not have been sent to the police custody from where he was brought. Mr. Memon has also joined the issue in respect the manner in which the confessional statements recorded by PW-78 Shri Sanjay Gandhi were sent to the Chief Judicial Magistrate, through the officials of the Crime Branch.

128. The procedural safe-guards contained in sub-sections 2,3,4 and 5 of Section 32 of the POTA do not enjoin the Police [Recording Officer] to send the person to judicial custody or not to send the person to the police custody after recording his confessional statement under Section 32 of the POTA. On the contrary, sub-section 5 thereof enjoins the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, in case the person complains of torture, to send the person for medical examination and thereafter to the judicial custody. This necessarily means that the Chief Metropolitan Magistrate or the Chief Judicial Magistrate is obliged to send such person to judicial custody only in case the person complains of ill-treatment or torture by the police.

129. It is a matter of prudence that the accused making confessional statement should have no apprehension of mental or physical torture or oppression of any kind in respect of the statement he makes. It may, therefore, be advisable that the accused who makes the confessional statement is sent to the judicial custody. In our opinion, mere fact that the accused, after recording his statement, was sent back to the police custody from where he was brought, in itself would not make the confessional statement inadmissible or vulnerable. In the present case, as we shall discuss soon, all the accused who made confessional statements appeared before the Chief Judicial Magistrate; they had no complain against the police; they had admitted the statement made by them; after making the confessional statement, each accused volunteered and cooperated with the police and led the police to various pieces of evidence. In our opinion, these attending facts tend to prove that none of the accused making confessional statement had been ill-treated by the police; had been oppressed or lured to make the confessional statement.

130. Shri Sanjay Gadhvi [PW-78] had placed the confessional statements in an envelope and had sealed the envelope. Though it was sent through Crime Branch officials, the confessional statements and the covering letters were received by the Chief Judicial Magistrate-Mr. S.M Padhya [PW-99] in the sealed cover. Besides, each confessional statement was read over to the concerned accused by Shri S.M Padhya [PW-99]; each accused admitted the statement made by him and his signature; each accused also made signature on each page of the statement before Mr. Padhya [PW-99], such signature was counter-signed by Mr. Padhya [PW-99].

131. In our opinion, the prosecution has proved that the confessional statements of all the five accused were properly recorded. The procedural requirement under the statute were complied with; the procedural safe guards referred to in the above judgments also have been answered.

In none of the above judgments relied upon by Mr. Memon, the Supreme Court has made absolute proposition as to how much time the accused should be given to ponder over his decision to make confessional statement or that any time less than the specified time granted to the accused would vitiate the confessional statement.

132. It may be noted that the purpose is to ensure that no accused is under duress or pressure or lured into making the confessional statement. The aforesaid procedural safeguards are observed to ensure that the accused makes the statement of his own free will. If the statutory safeguards are properly followed and other facts indicate free will of the accused making the confessional statement, such statement is admissible in evidence and can be relied upon as truthful account of the facts stated in such statement.

133. Let us now examine whether the procedure to produce the makers of the confessional statements before the Chief Judicial Magistrate or the Chief Metropolitan Magistrate prescribed under sub-sections (4) & (5) of Section 32 of the POTA were properly followed. As recorded hereinabove, the confessional statements made by the five accused persons were signed by the recording officer Shri Sanjay Gadhvi and were placed in a sealed cover. The Police had produced the sealed cover containing statements and the makers of the statements before the Chief Metropolitan Magistrate within forty eight hours, as specified in sub-section (4) of Section 32 of the Act of 2002.

134. The Chief Judicial Magistrate, Ahmedabad [Rural] Shri S.M Padhya has been examined by the prosecution [PW 99 : Exh.568]. He has given evidence before the Court that on 18th September 2003, he had received a request from the Superintendent of Police Mr. Singhal to record statements of the two accused. Pursuant to the said request, the accused nos. 1 & 3 viz., Altafhussain Akbarhussain Malek and Mohmed Salim Mohmed Hanif Shaikh were produced before him on 18th September 2003 at 3.30 in the afternoon. Both the statements made before the Police were recovered from the sealed envelope. Shri Padhya first called the accused no.1 Altafhussain Akbarhussain Malek in his chamber. In the chamber were present Shri Padhya and the accused no. 1 Altafhussain Akbarhussain Malek alone. Mr. Padhya first inquired whether the accused was ill treated by the police. The accused had submitted that he had not been given ill-treatment by the police. Thereafter, the statement made by the accused before the police was read over to the accused. The accused agreed that the accused had made that statement and that he had made endorsement on each page of the statement. Once again, each page was signed by the accused before Shri Padhya. The signature of the accused was countersigned by Shri S.M Padhya. Similarly, the accused no. 3 Mohmed Salim Mohmed Hanif Shaikh was called in the chamber of Shri Padhya. He too was inquired whether the police had given any ill-treatment to the accused. The accused asserted that he was not given any ill-treatment by the police. After recording the said statement of the accused, the statement made by him before the police was read over to him. The accused admitted the said statement and his signature on each page of the statement. He put his signature on each page of the said statement before Shri Padhya. The signature was countersigned by Shri Padhya. After obtaining the signatures of the accused and counter signing each signature, the statements were placed in the envelopes Exhs. 570 & 571, duly sealed and signed by Mr. Padhya. The statements were then sent to the Special Court.

135. Similarly, in the afternoon of 25th September 2003, the accused no.2 Adambhai Sulemanbhai Ajmeri and accused no. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri were produced before Shri Padhya alongwith the sealed envelope containing the statements made by them. Both the accused were individually called in the Chamber of Mr. Padhya. On inquiry by Mr. Padhya, both had individually admitted that the police had not ill-treated the concerned accused. Once again the above referred procedure of reading out the statement made by each accused, of verifying the signature; of obtaining the endorsement on the statement and counter-signing the signatures was meticulously followed. After that, both the statements were again placed in envelopes Exh. 572 & 573, duly signed and sealed by Mr. Padhya, and were sent to the Special Court, under cover of letter Exh.574.

136. The accused no. 6 Shaanmiya @ Chandkhan Sajjadkhan was produced before Mr. Padhya on 6th October 2003 at around 10.30 in the morning. The statement Exh. 462 made before the police was also produced in a sealed envelope. As the said accused Shaanmiya @ Chandkhan Sajjadkhan desired to communicate in Hindi, he was asked in Hindi whether he was given ill-treatment by the police. He submitted that he had not been ill-treated by the police. He admitted the statement Exh. 462 made by him before the Police and his signature on each page of the said statement. The accused Shaanmiya signed the said statement in presence of Mr. Padhya. His signature on each page of the said statement was counter-signed by Mr. Padhya. The said statement was once again placed in an envelope Exh. 576. The envelope was sealed and signed by Mr. Padhya and was sent to the Special Court under cover of the letter dated 6th October 2003 Exh.577.

137. In the cross examination by the defence lawyers, Mr. Padhya admitted that he had not inquired from the accused persons as to how long they were in the police custody nor did he send them to the judicial custody after recording their statements. Mr. Padhya has deposed that he did not think it necessary to send the accused to the judicial custody. He has also admitted that he had not recorded a specific statement that the accused had made confessional statement of his own volition. Mr. Padhya said that the police had informed the concerned accused the implication of the confessional statement recorded under Section 32 of the POTA and that the accused was not bound to make such statement. He admitted that explanation given by the police to the accused was in writing on a separate piece of paper.

138. From the above evidence on record, we are of the opinion that there is no gain-saying that the statutory safeguards provided under Section 32 of the POTA had been followed. As to the guidelines issued by the Hon'ble Supreme Court in the above referred judgments, we may refer to the case of State of Tamil Nadu through Superintendent of Police CBI/SIT v. Nalini & Ors. [AIR 1999 SC 2640] and the case of Jayawant Dattatraya Suryarao [2002 SCC Cri. 897]. Following the above judgments, the Hon'ble Supreme Court in the matter of Devender Pal Singh [2002 SCC Cri. 978], held, the initial burden is on the prosecution to prove that all the requirements under Section 15 of the TADA and Rule 15 were complied with. Once that is done, the prosecution discharges its burden, then, it is for the accused to satisfy the Court that the confessional statement was not made voluntarily . The Court has also held, the Recording Officer without granting any time may straightaway proceed to record the confessional statement but if he think it proper to grant time ..it cannot be a mechanical exercise for completing a formality.

Thus, there is no hard and fast rule as to how much time the Recording Officer may grant to the accused to reflect over his decision to make the confessional statement. It is for the recording officer to decide how much time he must consider reasonable for that purpose. In the present case, each accused making confessional statement was granted around 15 minutes' time to reflect over his decision to make confessional statement. There is no evidence on record to suggest that 15 minutes time was inadequate so as to render the confessional statements inadmissible in evidence or unreliable. It should be noted that none of the five accused, while making confessional statement, asked for further time to ponder over. None of them had made complaint about the inadequacy of such time before the Chief Judicial Magistrate before whom they were produced. Before the Chief Judicial Magistrate also, they admitted the confession made by them. Further, the contention that the accused were in police custody for around forty five days is absolutely unbelievable.

Similarly, sending the accused to judicial custody after recording the confessional statement is a matter of prudence and not a statutory requirement. The accused had no complaint of the police atrocity before the Chief Judicial Magistrate. The Chief Judicial Magistrate has made a specific note on the writings Exh. 453, 455, 457, 459 and 461 that the concerned accused was inquired of whether he had suffered ill-treatment at the hands of the police and that the concerned accused had no compliant of ill-treatment by the police. In the matter of Navjot Sandhu the Court held, ..the non compliance with the judicial custody requirement does not per se vitiate the confession...

139. In absence of a statutory requirement to that effect, in view of the above evidence on record, we are of the opinion that sending the accused to the police custody after recording his confessional statement or in not sending the accused to the judicial custody does not in itself vitiate the confessional statement made by that accused.

We also hold that the evidence of PW-51 Abdul Raheman can be, inspite of his turning hostile, relied upon.

139. In view of the statutory provisions, the above referred rulings and the evidence on record discussed hereinabove, we hold that the confessional statements made by the accused no. 1-Altafhussain Akbarhussain Malek [Exh.456]; accused no. 2 Adambhai Sulemanbhai Ajmeri [Exh. 458]; accused no. 3 Mohmed Salim Mohmed Hanif Shaikh [Exh. 454]; accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri [Exh. 460] and accused no. 6 Shaanmiya @ Chandkhan Sajjadkhan [Exh. 462] are admissible in evidence.

140. We have perused the evidence of Defence Witness-1 Ajju Shekher [Exh. 730]; Defence Witness-2 Dr.Dipaliben Chandrakant Shah [Exh.731]; Defence Witness-3 Rabiabibi Iqbalbhai Mansuri [Exh. 732]; Defence Witness-4 Dr. Apurva J. Acharya [Exh.736]; Defence Witness-5 Dr. Bhargav Bechardas Jhaveri [Exh.737]; Defence Witness-6 Dr. Jayantilal Virjibhai Satapara [Exh.740] and Defence Witness-7 Dr. Bhavnaben C. Patel [Exh.744].

The aforesaid evidence has been adduced by the defence to support its claim that the accused were arrested long before the recorded date and that they were tortured by the police. The aforesaid evidence refers to the accused no.2-Adam Ajmeri and accused no.3-Mohmed Salim Mohmed Hanif Shaikh. None of the aforesaid evidence even remotely supports the defence version that the accused nos. 2 & 3 were arrested long before 29th August 2003-the official date. The evidence of the aforesaid doctors also do not prove the police atrocity upon the accused during the period they were in the police custody.

Although he had not made confessional statement under Section 32 of the POTA, on 30th October 2003 the accused no.5 Abdullamiya Yasinmiya Kadri addressed a retraction letter [Exh.778] to the learned Special Judge. He wrote that he was taken away by the Crime Branch on 17th August 2003 at around 5.20 in the morning. He was brought before the Police Officer-Shri Singhal. Shri Singhal made some inquiries about the relief camp. When he had no answer about certain matters he did not know, Shri Singhal started beating him up. He was then severely beaten by Shri V.D Vanar and Shri R.I Patel. He could not even stand up on his feet. Since then, every day he was beaten up. When he denied complicity in the Akshardham attack, he was threatened of encounter and was confined in a lock-up. Since then, he was every day called either by Shri Singhal or by Shri V.D Vanar or by Shri R.I Patel and was forced to admit the complicity in the Akshardham attack. On his denial, he was severely beaten and was threatened of more torture. Then, he was given some written paper and to copy it into his own handwriting or else he was threatened of being killed. Thus, he was coerced into writing the confessional statement and to sign under it. He was also threatened not to complain to the Court. He and the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri and one another were taken to Srinagar on 5th September 2003. The Police officers at Srinagar also had made inquiry about the Akshardham incidence.

141. The accused no.2- Adambhai Sulemanbhai Ajmeri wrote a letter dated 29th October 2003 [Exh.779] addressed to the learned Special Judge. He wrote that on 9th August 2003, he was summoned by the officers of the Crime Branch. He was taken away for interrogation under the pretext that his auto-rickshaw was a stolen vehicle. He was blind-folded and confined in an unknown place. On 10th August 2003 in the afternoon, he was taken to some senior officers whom he later came to know as DCP-Shri Vanjara, ACP-Shri Singhal, P.I Shri Vanar and PI Shri Patel. He was asked by the said officers to admit his complicity in the Akshardham incidence. When he refused and said that he had no connection whatsoever with the incidence, he was hand cuffed and beaten till he became unconscious. When he regained his conscious, he was again taken to Shri Vanjara. Shri Vanjara threatened him of encounter unless he admitted the guilt. Once again, he was severely beaten up. He was profusely bleeding and fell conscious. Daily he was beaten up till he became unconscious. On 16th August 2003, he was taken to DCP Vanjara. He could not even walk. When he asked for mercy, he was made to confess. Thus, he was beaten continuously from 9th August 2003 till 28th August 2003. He was also threatened against complaining to the Court. His wife was summoned and was made to sign certain papers under the pretext that her husband was to be released. He complained of pain in the legs and of aching tooth. On 5th September 2003, he was taken to Srinagar and threatened of encounter. Thus, he was made to sign confessional statement. He too complained of disease and urinary tract infection deliberately injected by the police.

142. Accused no. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri also made a similar complaint. He complained that he was taken away on 17th August 2003 for interrogation. He was brought to the Crime Branch at Gaekwad Haveli. He was blind folded. He was taken to an officer, whom he later came to know to be ACP Shri Singhal. Before Shri Singhal, his blind folds and hand cuffs were removed. After some preliminaries Shri Singhal started beating him. Once again, he was blind folded and hand cuffed and detained in custody till 28th August 2003. He was daily brought before the Police officers and was badly beaten up. He was asked to agree to his complicity in the Akshardham attack. When he denied his complicity, he was physically and mentally tortured till he fell unconscious. He was also given electric shocks. He was illegally confined till 29th August 2003. His father was also threatened against engaging advocate or approaching the Court. On 29th August 2003, he was made to sign certain papers. He did not know the contents of such papers. When he was produced before the Court, he was threatened not to complaint to the Court. After obtaining remand order for fourteen days, he was physically and mentally tortured. He was given two writings in Urdu and was made to copy the said writings under misrepresentation. He complained of having been taken to Srinagar [J&K] on 5th September 2003. He complained of threats of encounter unless he agreed to his complicity in the Akshardham attack. He was brought back on 9th September 2003. On 13th September 2003, he was brought before the Court. After obtaining further remand for five days, he was asked to sign on written confession papers under coercion and duress. According to him, he was kept in custody for around one and half month; was tortured physically and mentally, was given threats of encounter.

Similar retraction was made by the accused no.6 Shaanmiya @ Chandkhan Sajjadkhan on 18th November 2003. According to him, he was summoned to the Anantnag Police Station on 9th August 2003; he was physically tortured and was threatened to leave and go back to his own village. He was threatened of encounter. When he gave threat of making complaint to higher officers, he was allowed to go. Before he reached his home, he was again taken away by the police and tortured, given electric currents and was threatened of an encounter. He was sent to Srinagar. He was detained in custody by the Srinagar STF for around 15 days. During that period, he was produced before the Court thrice. Once again, he was tortured. His custody was then given to the other officers who brought him to Ahmedabad by plane. At Ahmedabad, he was informed that they were the officers from the Ahmedabad City Crime Branch. He was detained in the lock up. He was asked to agree to what the officers in the Crime Branch said. When he did not agree, he was tortured. He was given currents. The said ill-treatment by the police continued for fifteen days till he was made to sign certain papers. He was threatened and told not to make complaint to the advocate or to the Doctor or to the Court. On 16th October 2003, he was given some intoxicant and brought to the Court and then was sent to the Central Jail.

143. On 5th November 2003, the accused were produced before the learned Special Judge from the judicial custody. Each accused was given audience before the learned Special Judge. Each made an oral complaint of police atrocity during the police custody. Each complained of being in the police custody for along time and of police atrocity. According to each accused, he was made to sign the confessional statement prepared by the police in coercion and duress. They had not made the confessional statement of their own free will.

144. The aforesaid retractions are ex facie unbelievable. We have perused the Arrest Memos, the remand orders and the medical reports [Pp. 2608 2711]. The accused nos. 1 to 5 were arrested on 29th August 2003 under the arrest memos. Each was arrested in presence of a member of his family. The family of each accused was informed in writing. Each accused was produced before the Judicial Magistrate on the next day the 30th August 2003. They were represented by advocate Shri Shaukat A. Shaikh. None of the accused had any complaint of police atrocity. Again they were produced on 13th September 2003 before the Special Court. Each was represented by the advocate Shaukat A. Shaikh . None had the complaint against the Police. The accused no.6 was arrested on 12th October 2003 under a transfer warrant. He was produced before the Special Court on 13th October 2003. He was represented by learned advocate Mr. Hasim Qureshi. Under Order dated 18th September 2003, the accused nos. 1, 3 & 5 were remanded to the judicial custody. The accused nos. 2 & 4 were remanded to the judicial custody under order dated 26th September 2003. The accused no.6 was remanded to the judicial custody under order dated 6th October 2003.

During the period the accused were in police custody, they were subjected to medical examination at regular intervals. The medical reports rule out ill-treatment or mental or physical torture by the police. The accused nos. 1 to 4 and 6 were also produced before the Chief Judicial Magistrate Shri SM Padhya [PW-99] for verification of the confessional statements made by them under Section 32 of the POTA. Before the Chief Judicial Magistrate also, they had no complaint of ill-treatment by the police. Further, the conduct of the accused also discloses free will of each accused in making the confessional statement. After making the confessional statement, each accused cooperated with the police in further investigation. The statements made in the confessional statements are corroborated by the other evidence on record, discussed hereinabove. The retractions were clearly an afterthought and were tutored.

145. We now examine the evidence in respect of the Urdu writings [Exh. 658].

The two writings in Urdu [Exh. 658] are the center of controversy. Learned advocate Mr. Majid Memon has vehemently argued that these letters are planted by the police. He has referred to the evidence of PW-42 Shailesh Thakker [Exh. 266], to Inquest panchnama Exh.267 of the bodies of the deceased Fidayins, the post mortem notes Exh. 492 and Exh. 493 and the muddamal clothes of the Fidayins. He has submitted that both Fidayins died of bullet wounds in the counter attack by the NSG commandos; the bodies were wounded and soiled in blood; the clothes were tattered by the bullet holes and the splinters. There were holes in the clothes of the deceased Fidayins, particularly on the pockets. He has submitted that in the aforesaid circumstances, it is not possible that two pieces of paper recovered from the body of the deceased Fidayins were unsoiled and in perfect condition. He has also submitted that the expert opinion [Exh. 511] is not very accurate and is not reliable.

It is true that the Urdu write up recovered from the body of the deceased Fidayins were in perfect condition inspite of the multiple injuries received by the deceased Fidayins. But then the truth is stranger than fiction. It is not possible to disbelieve that two write ups in Urdu [Exh.658] were recovered from the body of the deceased Fidayins. We have already discussed the evidence. Both write ups were signed by Brig. Raj Sitapathi of National Security Guard; were enlisted in List Exh. 524 prepared on the spot, the muddamal articles as per List Exh.524 were received by the Divisional Police Officer Shri G.L Singhal on the spot under Panchnama Exh.440 signed by the Police Officer Shri Prakashchandra Mahera [PW-105 :

Exh.592]. The evidence and the opinion Exh.511 of the handwriting expert Shri JJ Patel [PW-89 : Exh.507] prove that the said letters were written in the hand of the accused no.4-Abdul Kayum.

146. In the face of the contemporary evidence of recovery of the Urdu write-ups Exh.658 from the body of the Fidayins by Lt.Col. Lamba [PW-91]; the signature of Brig. Raj Sitapathi on the write-ups Exh. 658; the receipt of the letters by the Divisional Police Officer Shri G.L Singhal [PW-126] under Panchnama Exh.440 signed by PI Prakashchandra Mahera [PW-105], it is not possible for us to accept the argument of Mr. Memon. If we accept the argument of Mr. Memon, we have to disbelieve the aforesaid evidence. In other words, we have to hold that the Police had such presence of mind that in the milieu of the aftermath of the terrorist attack, the Police thought of creating the evidence, found out a person who knew Urdu, got him to write the write-ups in handwriting that would match the handwriting of the accused no.4- Abdulkayum @ Muftisaab Mohmedbhai Mansuri, made Lt. Col. Lamba and Brig. Raj Sitapathi their accomplices and that the two officers of the National Security Guard readily agreed to be the accomplices. So did the panch witness Vinodkumar [PW-74] and Dilipsinh [PW-1]. This possibility is too far fetched to be believed.

Section 120A IPC defines 'criminal conspiracy'.

120A.

Definition of criminal conspiracy. --- When two or more persons agree to do, or cause to be done, ---

an illegal act, or 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.

	 


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	Section

120B IPC provides for punishment of criminal conspiracy.

120B.

Punishment of criminal conspiracy. --- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2)

xxxx xxxx xxxx.

'Abetment' is defined in Section 107 IPC.

Section 109 IPC provides for punishment of abetment.

109.

Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. ---

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation:-

An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Section 121 IPC refers to the offences relating to waging war against the Government of India. Section 121A relates to conspiracy to commit offences punishable by section 121.

121A.

Conspiracy to commit offences punishable by section 121 Whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extent to ten years, and shall also be liable to fine.

Explanation To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.

Section 153A IPC provides for punishment for promoting enmity between different groups.

153A.

Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. --- (1) Whoever ---

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc. --- (2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to give years and shall also be liable to fine.

The words 'terrorist acts' are defined in clause (g) of sub-section (1) of Section 2 of the Prevention of Terrorism Act, 2002. Sections 3, 20, 21 and 22 of the POTA provide for offences relating to participation of, support to and fund raising for the terrorist organizations.

Section 3 of POTA provides for punishment for terrorist acts.

3. Punishment for terrorist acts. --- (1) Whoever, ---

(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act;

(b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act.

Explanation For the purposes of this sub-section, a terrorist act shall include the act of raising funds intended for the purpose of terrorism.

Whoever commits a terrorist act, shall, ---

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.

Whoever voluntarily harbours or conceals, or attempts to harbour or conceal, any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine.

Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life, or with fine which may extend to rupees ten lakh, or with both.


 


 


 
	 


	Explanation
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	(6)Whoever

knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which may extend to imprisonment for life, or with fine which may extend to rupees ten lakh, or with both.

(7)Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine.

Section 20 of POTA defines 'offence relating to membership of a terrorist organisation'.

20. Offence relating to membership of a terrorist organisation. --- (1) A person commits an offence if he belongs or professes to belong to a terrorist organisation:

Provided that this sub-section shall not apply where the person charged is able to prove ---

(a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member;

and

(b) that he has not taken part in the activities of the organisation at any time during its inclusion in the Schedule as a terrorist organisation.

(2)

A person guilty of an offence under this section shall be liable, on conviction, to imprisonment for a term not exceeding ten years, or with fine, or with both.

Section 21 of POTA defines 'offence relating to support given to a terrorist organisation'.

21.Offence relating to support given to a terrorist organisation. ---

A person commits an offence if --- (a) he invites support for a terrorist organisation, and (b) the support is not, or is not restricted to, the provision of money or other property within the meaning of section 22.

A person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is (a) to support a terrorist organisation, or (b) to further the activities of a terrorist organisation, or (c) to be addressed by a person who belongs or professes to belong to a terrorist organisation.

A person commits an offence if he addresses a meeting for the purpose of encouraging support for a terrorist organisation or to further its activities.

A person guilty of an offence under this section shall be liable on conviction, to imprisonment for a term not exceeding ten years, or with fine, or with both.

Section 22 of POTA defines 'fund raising for a terrorist organisation to be an offence':

22.

Fund raising for a terrorist organisation to be an offence. ---

A person commits an offence if he -- (a) invites another to provide money or other property, and (b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.

A person commits an offence if he -- (a) receives money or other property, and (b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.

A person commits an offence if he (a) provides money or other property, and (b) knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.

In this section, a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.

A person guilty of an offence under this section shall be liable on conviction to imprisonment for a term not exceeding fourteen years, or with fine, or with both.

Power of Special Courts with respect to other offences :

(1)

xx xx xx (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorized by this Act or such rule or, as the case may be, under such other law.

Section 2 of the Explosive Substances Act, 1908 defines 'explosive substance' and 'special category explosive substance'. Sections 3, 4, 5 and 6 thereof provide for punishment for offences relating to causing explosion and making or possessing explosives.

2. Definition. --- In this Act, ---

(a) the expression 'explosive substance' which shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;

(b) the expression 'special category explosive substance' shall be deemed to include research development explosive (RDX), penta erythritol tetra nitrate (PETN), high melting explosive (HMX), tri nitro toluene (TNT), low temprature plastic explosive (LTPE), composition exploding (CE) (2,4,6 phenyl methyl nitramine or tetryl), OCTOL (mixture of high melting explosive and tri nitro toluene), plastic explosive kirkee-1 (PEK-1) and RDX/TNT compounds and other similar type of explosives and a combination thereof and remote control devices causing explosion and any other substance and a combination thereof which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Act.

3. Punishment for causing explosion likely to endanger life or property.

--- Any person who unlawfully and maliciously causes by --- (a) any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine; (b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine.

4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. --- Any person who unlawfully and maliciously --- (a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or (b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,--

(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

5. Punishment for making or possessing explosives under suspicious circumstances. --- Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished, --- (a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine; (b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

6. Punishment of abettors. --- Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.

Section 27 of the Arms Act, 1959 provides for punishment for using arms, etc. ---

Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.

147. We have considered the charge against the accused, the evidence on record, the legal provisions and the law settled in the above referred judgments.

148. We are of the opinion that the offence of criminal conspiracy of mass killing of Hindus in Gujarat; of promoting enmity between the two groups on ground of religion; of inviting support for a terrorist organization; of arranging and managing meeting/s to support terrorist organization; of inviting another to provide money, of receiving money and of providing money for the purpose of terrorism; of use of prohibited arms and explosives; of terrorist act of mass killing without provocation; of attempt to murder and of abetment are established. It is established that some persons, presumably of foreign origin [Pakistan & Saudi Arabia], decided to wreak vengeance for the loss suffered by the muslims during the communal riots that broke out in the State of Gujarat after some 50 Kar Sevaks were burnt alive at Godhra in Sabarmati Express train on 27th September 2002. They made a master plan of mass killing of Hindus in the State of Gujarat. To carry out their plan to retaliate, those originators targeted the young muslims from India and particularly from Gujarat working in Saudi Arabia to earn their livelihood. They instigated young muslims from Gujarat to become members of the terrorist groups Jaish-E-Mohammed and/or Lashker-e-Toiba . They were, by aggressive address and fiery speech, instigated to rise to fight for Islam and in the name of Islam to target the Hindus.

They were shown video clippings of the loss of property and person suffered by the muslims in the communal riots. They were made to make contribution for carrying out the criminal conspiracy hatched by them. These young muslims knowingly became party to the conspiracy, made contribution and collected funds and passed over to Jaish-E-Mohammad to carry out the conspiracy. They also assisted in carrying out the conspiracy by distributing pamphlets and the cassettes containing Jihadi literature. Some of them picked up the cause actively and became active party to the conspiracy. Not only they contributed to the fund, they also contributed man-hours and used their contacts in Ahmedabad to further the conspiracy. Ultimately, with the funds, aid and assistance provided by the young muslims working in Saudi Arabia, their contacts and relations in the city of Ahmedabad, the active members of the Jaish-E-Mohammed from Hyderabad and Kashmir, carried the conspiracy to its logical end i.e., of mass killing of Hindus by choosing the most appropriate place i.e., Akshardham. Those killed in the massacre were innocent, unsuspecting Hindus who happened to have visited the Akshardham temple on the fateful day and time; some for religious purpose, some for site-seeing and some may have visited the temple for a pleasant evening. They fell victim to a meticulously planned criminal conspiracy and died or were injured at the hands of the Fidayins [two unknown persons of unknown origin] for no reason whatsoever.

We believe that apart from the aforesaid obvious victims of the crime, the accused themselves are the victims of the same crime originated by the foreign nationals on the foreign land to which they are party. The accused got involved with full knowledge of what was the aim of the conspiracy and what would be the consequences. They enthusiastically carried out their part of the conspiracy ruthlessly without considering the consequence that would fall upon them and their families. We look at them as the victims of the religious fanaticism.

149. We are alive of the fact that these accused have a clean history. They do not have any criminal background or criminal antecedents. They are ordinary citizens of India. Some of them left their family in India and went to Saudi Arabia with a view to earning little more and to providing better life to their family. Instead, they are facing consequences of a gory crime because they sought solidarity with foreign nationals in the name of religion and Jihad. The gravity of the crime they have committed far outweigh these mitigating factors.

150. The accused no.1 Altafhussain Akbarhussain Malek, a resident of Ahmedabad working at Riyadh in Saudi Arabia. He instigated other muslims in Saudi Arabia to make contribution to the aforesaid groups Jaish-E-Mohammed and/or Lashker-e-Toiba to carry out the criminal conspiracy. Thus, he is proved to have committed offence punishable under Section 22 [1] of the POTA.

151. We confirm his conviction for the offence punishable under Section 22 [1] of the POTA and the sentence of rigorous imprisonment for 5 years and a fine of Rs. 5,000/= and simple imprisonment for six months in default of payment of fine.

152. The accused no.2 Adambhai Sulemanbhai Ajmeri is a resident of Ahmedabad. He is the brother of the absconding accused no. 4 Abdulrashid Suleman Ajmeri. The said Abdulrashid Suleman Ajmeri is alleged to have actively participated in carrying out the criminal conspiracy through the accused no. 2 Adambhai Sulemanbhai Ajmeri. To us, it appears that these accused has played a pivotal role in carrying out the conspiracy. He was the most enthusiastic. He readily agreed to be a party to the conspiracy. It was he who involved other accused in the crime. He contacted the accused nos. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri and accused no. 5 Abdullamiya Yasinmiya Kadri. He went to Hyderabad to meet Ayub and Khalid [absconding accused nos. 23 & 12]. He went to railway station to receive Ayub and the Fidayins. He took them to recci Ahmedabad and Gandhinagar. He arranged for their lodging and boarding, he received the money to fund the conspiracy. At the end, he helped Ayub [absconding accused no. 23] to safely get away from Ahmedabad. He went a yard farther. At the time of the incidence, though it was not required of him to be there, he went all the way to Akshardham, probably to ensure that the Fidayins had successfully entered the Akshardham precinct and had commenced their mission and to bring the news of victory to the others waiting. But for the assistance provided by this accused and all the arrangements [lodging, boarding & logistic] he made, the mission could not have been accomplished. As a co-conspirator, he is guilty of the heinous crime of striking terror, of killing 33 persons and of attempting to commit murder of some 86 persons, of using fire arms like assault rifles and prohibited explosives.

153. We confirm the conviction and sentence of the accused for the offence punishable under Section 3 (3) of the POTA and the sentence of life imprisonment and a fine of Rs. 10,000/= and simple imprisonment of two years in default in payment of fine; for offence punishable under Section 3 (3) read with Section 5 of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 5,000/= and simple imprisonment for one year in case of default in payment of fine; for offence punishable under Section 22 [2] of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 20,0000/= and simple imprisonment for one year, in default of payment of fine; for offence punishable under Section 120B IPC read with Section 4 of the Explosive Substance Act and the sentence of rigorous imprisonment for 10 years and a fine of Rs.10,000/= and simple imprisonment for two years in default of payment of fine; for the offence punishable under Section 120B IPC read with Sections 3 & 6 of the Explosive Substances Act and the sentence of life imprisonment and a fine of Rs.20,000/=; for offence punishable under Section 120B IPC read with Section 307 IPC and the sentence of life imprisonment and a fine of Rs.20,000/= and simple imprisonment for one year in default of payment of fine; for offence punishable under Section 120B read with Section 27 of the Arms Act and the sentence of rigorous imprisonment for seven years and a fine of Rs. 10,000/= and simple imprisonment for one year in default in payment of fine.

154. We confirm the conviction of the accused for offence punishable under Section 120B IPC read with Section 302 IPC and the death sentence [hanging by neck till death] and a fine of Rs.25,000/=.

155. The accused no.

3 Mohmed Salim Mohmed Hanif Shaikh is a young muslim from Ahmedabad who was working at Riyadh in Saudi Arabia. He is one of the active conspirators. When instigated by the leaders of the terrorist group 'Jaish-E-Mohammed , he rose to the occasion and fuelled the conspiracy in the name of Islam. He allowed the co-conspirators to use his residence for spreading the religious fanaticism and nurtured it. The young muslims who naturally gathered at his house for an evening were made the target. They were roused to become co-conspirators. In the name of Jihad, they were called upon to make contribution to the conspiracy; they were shown the video clippings. It was this accused who gathered them and took them to attend the meetings arranged by the terrorist groups addressed by those fanatic leaders. He became member of the terrorist group Jaish-E-Mohammed and of Sippa-E-Saheba . He also took over the leadership. He distributed pamphlets, made copy of the cassettes addressed by the terrorist leaders and distributed them. He instigated others to make generous contribution; he himself made the contribution with full knowledge that the collection was for funding the terrorist group Jaish-E-Mohammad to fund the massacre [Katle aam] of the Hindus.

156. We confirm the conviction and sentence of the accused no.3 Mohmed Salim Mohmed Hanif Shaikh for offence punishable under Section 3 (3) of the POTA and the sentence of life imprisonment and a fine of Rs. 10,000/= and a simple imprisonment for two years in default of payment of fine; for offence punishable under Section 5 of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 5,000/= and simple imprisonment for one year in default of payment of fine; for offence punishable under Section 20 of the POTA and the sentence of rigorous imprisonment for five years and a fine of Rs. 20,000/= and rigorous imprisonment for one year in default of payment of fine; for offence punishable under Section 21 (2) of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 10,000/= and simple imprisonment for one year in default of payment of fine; for offence punishable under Section 22 [1] of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs.20,000/= and simple imprisonment for two years in default of payment of fine; for offence punishable under Section 120B IPC read with Section 4 of the Explosive Substances Act and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 10,000/= and simple imprisonment for two years, in default of payment of fine; for the offence punishable under Section 120B IPC read with Sections 3 & 6 of the Explosive Substances Act and the sentence of life imprisonment and a fine of Rs. 20,000/=; for offence punishable under Section 120B IPC read with Section 302 IPC and the sentence of rigorous imprisonment for life [till he is alive] and a fine of Rs. 25,000/=; for offence punishable under Section 120B IPC read with Section 307 IPC and the sentence of life imprisonment and a fine of Rs. 20,000/= and simple imprisonment for 1 year in default of payment of fine; for offence punishable under Section 120B IPC read with Section 121A of the IPC and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 5,000/= and simple imprisonment for one year, in default of payment of fine; for the offence punishable under Section 120B IPC read with Section 153A IPC and the sentence of rigorous imprisonment for 3 years and a fine of Rs. 5,000/= and simple imprisonment for six months in default of payment of fine; for the offence punishable under Section 120B read with Section 27 of the Arms Act and the sentence of rigorous imprisonment for 7 years and a fine of Rs. 10,000/= and simple imprisonment for one year in default of payment of fine.

157. The accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri is an Imam in the Mosque and a teacher in Madressa at Ahmedabad. He is a learned man, knowing six languages viz., Urdu, Arabic, Gujarati, Hindi and a little Persian and English. This accused also took the bait greedily when he was offered to be a co-conspirator in a crime of this magnitude. He guided the other conspirators through to the end. He allowed the co-conspirators to gather at the Bavahir Hall and he actively guided the other conspirators. He received the Fidayins and Ayub [absconding accused no.23] at Bavahir Hall. He performed namaaz for their victory and the well being. He wrote the Urdu writings containing casting remarks against the Hindus. He helped packing the weapons, rifles, ammunitions, hand grenades for the fidayins to carry them to Akshardham to commit the crime. He saw them off to their mission.

158. For the aforesaid offences proved against the accused no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri, we confirm the conviction and the sentence of the accused for the offence punishable under Section 3 (3) of the POTA and the sentence of life imprisonment and a fine of Rs.10,000/= and simple imprisonment for two years in default of payment of fine; for offence punishable under Section 3 (3) read with Section 5 of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs.5,000/= and simple imprisonment for one year in case or default in payment of fine; for the offence punishable under Section 120B IPC read with Section 4 of the Explosive Substances Act and the sentence of rigorous imprisonment for 10 years and a fine of Rs.10,000/= and simple imprisonment for two years in default of payment of fine; for the offence punishable under Section 120B IPC read with Sections 3 & 6 of the Explosive Substances Act and the sentence of life imprisonment and a fine of Rs. 20,000/=; for offence punishable under Section 120B IPC read with Section 307 IPC and the sentence life imprisonment and a fine of Rs. 20,000/= and simple imprisonment for one year in default of payment of fine; for offence punishable under Section 120B read with Section 153A IPC and the sentence of rigorous imprisonment for three years and a fine of Rs. 5,000/= and simple imprisonment for six months in default of payment of fine; for the offence punishable under Section 120B IPC read with Section 27 of the Arms Act and the sentence of rigorous imprisonment for 7 years and a fine of Rs. 10,000/= and simple imprisonment for one year in default of payment of fine; and for the offence punishable under Section 120B IPC read with Section 121-A IPC and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 5,000/= and simple imprisonment for one year, in default of payment of fine. We confirm the conviction and sentence for offence punishable under Section 120B IPC read with Section 302 IPC and the death sentence [hanging by neck till death] and imposition of the fine of Rs. 25,000/=.

159. The accused no. 5 Abdullamiya Yasinmiya Kadri is a Maulvi. His complicity in the crime is established. He guided the other conspirators through to the end, peformed namaaz for the Fidayins. He helped packing the weapons, rifles, ammunition, hand grenades for the fidayins to carry them to Akshardham to commit the crime.

We confirm his conviction for the offence punishable under Section 3 {3} of the POTA and the sentence of imprisonment for 10 years and a fine of Rs. 10,000/= and simple imprisonment for two years in default of payment of fine imposed by the learned Special Judge.

160. Accused No.6 Shaanmiya @ Chandkhan Sajjadkhan is the resident of Anantnag [Kashmir]. He was recruited by Zuber of Kashmir, an active member of Jaish-E-Mohammed [since deceased] for transporting the weapons to Ahmedabad. He received a sum of Rs. 30,000/= for that. He bought the muddamal Car, modified it to create a concealed cavity to carry weapons; loaded the weapons in the Car and brought them to Bareily. In Bareily, he removed the weapons from the Car, wrapped them in the mattresses and brought them to Ahmedabad by railway train. At Ahmedabad, he handed over the weapons to the Fidayins, presumably through Ayub [absconding accused no. 23]. We have noted the deftness with which he unloaded the weapons and explosives from the car and concealed them in the mattresses and packed them in a suitcase and a holdall.

Thus, the accused no.

6 Shaanmiya @ Chandkhan Sajjadkhan is proved to be the party to the crime. We confirm the conviction of the accused no. 6 Shaanmiya @ Chandkhan Sajjadkhan for the offences punishable under Section 3 {3} of the POTA and the sentence of life imprisonment and a fine of Rs. 10,000/= and simple imprisonment for two years in default of payment of fine; for offence punishable under Section 3 (3) read with Section 5 of the POTA and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 5,000/= and simple imprisonment for one year in case or default in payment of fine; for the offence punishable under Section 3 [1] of the POTA and the sentence of life imprisonment and a fine of Rs. 25,000/=; for the offence punishable under Section 120B read with Section 4 of the Explosive Substances Act and the sentence of rigorous imprisonment for 10 years and a fine of Rs. 10,000/= and simple imprisonment for two years in default of payment of fine; for offence punishable under Section 120B IPC read with Sections 3 & 6 of the Explosive Substances Act and the sentence for life imprisonment and a fine of Rs.20,000/=; for offence punishable under Section 120B IPC read with Section 307 IPC and the sentence of life imprisonment and a fine of Rs. 20,000/= and a simple imprisonment for one year in default of payment of fine; for offence punishable under Section 120B read with Section 25 [1](AA) of the Arms Act and the sentence of rigorous imprisonment for 7 years and a fine of Rs. 10,000/= and simple imprisonment for two years in default of payment of fine.

We confirm his conviction for offence punishable under Section 120B IPC read with Section 302 IPC and the death sentence [hanging by neck till death] and a fine of Rs. 25,000/=.

161. In the result, we dismiss the Criminal Appeal Nos. 1328 of 2006 & 1675 of 2006. The substantive sentence passed against each accused are ordered to run concurrent. The convicts will be entitled to set-off wherever applicable.

The death sentence passed against the accused no.2 Adambhai Sulemanbhai Ajmeri, accused no. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri and the accused no.6 Shaanmiya @ Chandkhan Sajjadkhan is confirmed.

162. We end with a deep sense of sorrow. Some foreign nationals, presumably religious fanatics and members of the terrorist groups Jaish-E-Mohammed and Lashker-E-Toiba , out of hatred for Hindus, decided to commit crime against the Hindus in Gujarat and accomplished their ill-will without any loss to themselves. These foreign nationals utilized Indian nationals [the accused and the others] and their hard earned money to accomplish their cherished dream of massacre of the Hindus - the men, women and children of all ages and an unborn child too. This could have been avoided had the accused nos. 4 & 5 the community leaders been vigilant. Instead of fuelling the hatred, they could have utilized their authority to pacify the people and to douse the sense of hatred. The carnage which could have easily been avoided was accomplished.

163. Not only that those innocents and their family members are the only victims but the accused before the Court too are the victims of the same crime as they are going to lose their life to the gallows or in jail. Their families will have to suffer for rest of their lives. We only wish that these young people who are easily lured into committing the crime in the name of religion are also made aware of the consequences that may befall upon them and their families. Their energy and idiosyncrasies could be diverted for constructive work for betterment of themselves and the society.

{Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash* Top

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Gujarat High Court