Gujarat High Court
Salim vs State
Author: Jayant Patel
Bench: Jayant Patel
CR.MA/17914/2011 30/ 30 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 17914 of 2011 In CRIMINAL APPEAL No. 586 of 2011 ========================================================= SALIM @ SALMAN YUSUF SATTAR ZARDA - Applicant(s) Versus STATE OF GUJARAT (REPRESENTED BY THE SPECIAL INVESTIGATION - Respondent(s) ========================================================= Appearance : MS NITYA RAMAKRISHNAN WITH MR S M VATSA for Applicant(s) : 1, MR SUSHIL KUMAR WITH MR JM PANCHAL, SPECIAL PP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 17/02/2012 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present application has been preferred by the appellant of Criminal Appeal No.586 of 2011 for the following directions:-
"II) To direct the S.I.T. To produce the CDs of Operation-Kalank as well as other equipments/instruments used which were used by Mr Ashish Khetan to carry out the said "sting-operation".
III) To produce a copy of S. 161 Cr.P.C. Statement of Mr.Ashish Khetan recorded the investigation officer of the S.I.T., Mr. J.R. Muthaliya, (P.W. 245/Exh. 1547).
IV) To direct the S.I.T. To produce the FSL report being report no.FSL/12301/Phys-505/2008, F.S.L.-Jaipur dated 9/2/09 in respect of the CDs and other articles forwarded by Mr.Nirmalsinh S. Raju, P.I., C.B.I.-Mumbai.
V) To direct the Tehelka Magazine and/or Aaj-Tak News channel to produce the contemporaneous record or transcripts of audio of the CDs in respect of the said Operation-Kalank.
VI) To direct The Registrar, National Human Rights Commission, Faridkot House, New Delhi, to produce the investigation report of CBI Mumbai, carried out pursuant to its directions dated 5.11.2007 & 31.3.2008 in connection with Operation-Kalank.
VII) To direct recording of the evidence Mr.Ashish Khetan either by this Hon'ble Court or by a Court of Sessions or a Magistrate in terms of S. 391(1) of the Cr.P.C.
VIII) To direct recording of Mr.Nirmalsinh S. Raju, P.I., C.B.I.-Mumbai either by this Hon'ble Court or by a Court of Sessions or a Magistrate in terms of S. 391(1) of the Cr.P.C., in terms of S. 391(1) of the Cr.P.C.
IX) To direct recording of i) Mr.Shelendra Jha, Assistant Director, F.S.L., Jaipur, ii) Mr.Vikash Bhardwaj Senior Scientific Officer, FSL, Jaipur and iii) Mr. Mukesh Sharma, Senior Scientific Officer, FSL, Jaipur, either by this Hon'ble Court or by a Court of Sessions or a Magistrate in terms of S. 391(1) of the Cr.P.C., in terms of S. 391(1) of the Cr.P.C."
All the aforesaid prayers are in the nature of additional evidence to be brought on record pending the appeal in the proceedings of the appeal, which is preferred against the order of conviction and the sentence imposed by the learned Sessions Judge and as mentioned in the application submitted by the learned Counsel during the course of hearing of, the present application under is under Section 391 of Cr.P.C.
The brief facts as emerging from the FIR, as mentioned by the appellant in the memo of appeal from paragraph 3 to 5.1 reads as under:-
"3. Brief facts emerging from the FIR which was registered as C.R. No.I-9/2002 at Godhra Railway Police Station on 27/2/2002 relate to a most unfortunate incident which took place at Godhra Railway Station in Sabarmati Express Train where fire engulfed lives of 59 passengers at about 8.00 a.m., and about 48 passengers sustained injuries when Coach S-6 was in flames. Without entering into minutest details about the incident the gravamen of the charge in respect to conspiracy is based on the alleged meeting of 5 accused, namely, (1) Salim alias Salim Yusuf Jarda, (2) Saukat Ahmed Charkha alias Lalu, (3) Salim Haji Ibrahim Badam alias Salim Panwala (absconding accused), (4) Jabirbin Yamin and (5) Abdul Razak Kurkur who met together on 26/2/2002 at about 9 p.m., at Room No.8, Aman Guest House. It is further the prosecution case that in pursuance to the discussion, petrol in 7 carboys (plastic containers of 20 ltrs. Each) came to be purchased from the petrol pump of Kalubhai and those containers were transported to Aman Guest House in Rickshaw No.GJ-6-U-8074. It is further the prosecution case that 7 carboys were unloaded at the residence of accused Abdul Razak Kurkur. It is further the case of the prosecution that the accused Bilal Ismail Abdul Majid alias Bilal and Accused Farooq Mohammad Bhana had conveyed the message of Maulvi Hussain Haji Ibrahim Umarji to the accused at Aman Guest House to burn the Compartment S-6 of Sabarmati Express Train. That on receipt of the information of late arrival of Sabarmati Express Train, the accused persons had decided to meet at about 6.00 to 6.30 a.m., on 27.2.2002 at Aman Guest House.
3.1) It is further the prosecution case that Sabarmati Express Train No.9166 UP came at Godhra Railway Station on 27.2.2002 at about 7.43 a.m. It is further the prosecution case that there was exchange of words by Kar Sevaks with hawkers at the platform and that resulted into beating the vendor boys at the platform. It also transpires from the prosecution case that there was an attempt to outrage modesty of one Muslim lady by one of the Kar Sevaks. It also transpires from the prosecution case that there was pelting of stones on both sides i.e. residents of Signal Falia and Kar Sevaks. That Sabarmati Express Train had left the platform and after crossing of 3/4 coaches there was chain pulling and some of the Kar Sevaks who had remained at the plat form had boarded the train. It further transpires that after the chain-pulling was set right, train had started and the train stopped after crossing of some of the coaches near 'A' Cabin. It is further the prosecution case that mob of about 900 to 1000 persons reached near 'A' Cabin and started pelting of stones and also use of different weapons on Sabarmati Express Train. It is the prosecution case that at that time windows of the train on the 'A' side cabin were closed but due to heavy pelting of stones the windows were broken and some of the members of the crowd were throwing petrol bulbs, acid bulbs and burning rags on Coach S-6. It also transpires from the prosecution evidence that there were more than 150 passengers in Coach S-6 when Sabarmati Express Train stopped at 'A' Cabin.
3.2) It is the prosecution case that as pre-planned by some of the accused, the 7 carboys of petrol were transported in a loading rickshaw near 'A' cabin and after cutting the canvass of vestibules between Coach S-6 and S-7, the sliding door was opened by use of force with kicks and some of the accused, namely, accd. Mehboob Ahmed Hasan, Accd. Jabir Bin Yamin Behra had entered the Coach S-6 with carboy of petrol and poured the same in Coach S-6. It also transpires from the prosecution case that the door of Coach S-6 was opened and other accused persons entered Coach S-6 with petrol filled carboys and poured the same in coach S-6. It is also the prosecution case that the accused Hasan Ahmed charkha threw burning rag material in coach S-6 and thus coach S-6 was put-on fire.
3.3) It further transpires from the evidence that some of the accused had caught hold of the passengers and looted their ornaments by causing injuries. That the fire-fighter, on information, had reached opposite side of 'A' Cabin via Bamaniya Nala. The said fire-fighter was prevented from reaching to the place and it was damaged due to pelting of stones. It also transpires from the prosecution evidence that the members of crowd were raising slogans and thereby instigating communal violence. It transpires from the prosecution evidence that there was damage to the tune of Rs.17,64,475/- to the railway property and by these acts, the belongings of passengers also came to be destroyed. Thus, the accused came to be tried on these facts for various offences in different Sessions Cases as mentioned herein above.
4. The learned Sessions Judge, after examining 257 witnesses, on appreciation of the said evidence, came to the conclusion that the prosecution established the conspiracy to burn Coach S-6 and on 27/2/2002 as per the previous plan a mob consisting of more than 900 muslim persons attached on Sabarmati Express Train with weapons like sticks, iron pipes, Dharias, Guptis and also started pelting stones, acid bulbs, bottles, burning rags etc., on the train coaches. The learned Judge also found that the members of the crowd were instigated by making pronouncement of loudspeakers from nearby Ali Masjid and due to such tens atmosphere the passengers of the train were restrained/prevented from escaping from the coach, even on 'Off side of the train". That the learned Judge also found that some of the accused entered Coach S-6 by cutting canvass vestibules of Coach S-7 and after forcibly opening sliding door of coach S-6 and East-South corner door of Coach S-6 carboys filled with petrol came to be emptied in the coach and thereby using a burning rag set the coach S-6 on fire. The learned Judge further found that by this act, 59 passengers/Kar Sevakas died and about 48 persons sustained burns or other injuries. Thus, the learned Judge, on appreciation of evidence came to the conclusion that the prosecution established charges against 31 accused.
5. The learned Judge on appreciation of evidence found that the prosecution evidence was not sufficient to record finding of guilt against 63 accused and hence acquitted 63 accused persons from all the charges.
5.1) The learned Judge, after hearing the accused on question of sentence found that the case of 11 accused can be considered as rarest of rare case where sentence of death required to be imposed. However, in respect of 20 accused taking into consideration mitigating circumstances and other various factors, the learned Judge sentenced them to suffer imprisonment for Life and other various punishments for different offences. However, in respect to 11 accused, the learned Judge found that sentence of death "Be hanged by neck till death" required to be imposed."
Against the aforesaid order of the learned Sessions Judge for conviction and imposing above referred sentence the appeal has been preferred before this Court. We may also record that the criminal confirmation case being death reference is also referred and pending before this Court. At this stage, we have to consider as to whether the power under Section 391 of Cr.P.C., should be exercised or not. Further, it needs to be recorded that neither the proceedings of death reference has not commenced, nor is open, but appeal against the conviction and sentence together with the other appeals of the co-convict(s) have been admitted by this Court and awaiting final hearing.
We have heard Ms.Nitya Ramakrishnan, learned Counsel appearing with Mr.Somnath Vatsa, learned Counsel for the applicant. We have also heard Mr.Sushil Kumar, learned Sr. Counsel appearing with Mr.J.M. Panchal, learned Special Public Prosecutor for the State.
It was submitted by the learned Counsel appearing for the applicant that the applications were made to bring on record the evidence of Shri Ashish Khetan, the Reporter of Tehelka, before whom the witness-PW-224 had stated that because certain monitory consideration was paid it was stated by him before police for procurement of the petrol by the person concerned and the said Mr.Khetan had videographed the said statement of the witness and the CD was prepared. Such a CD was required to be brought on record. It was also submitted that the FSL report for the genuineness of the said CD was also required to be brought on record. She further submitted that Shri Ashish Khetan's statement was also recorded by Shri J.R. Muthaliya, SIT Member, who was also examined the witness - PW-245, and the same was also required to be brought on record. The application was moved by the defence being Exh. 1612, read with the application for modification being Exh. 1622, but the same were not granted by the learned Sessions Judge. She further submitted that a fresh application was made under Section 91 being Exh. 1628 requiring Nazir of the Sessions Court to produce the DVD tendered in the evidence of Mr.Ashish Khetan, who was examined as witness in another Sessions Case No.152 of 2002 (popularly called as "Gulbarg Society Case"). However, the same was also not granted by the learned Sessions Judge and ultimately the prayers under Section 91 of Cr.P.C., were not granted vide order dated 20.8.2010 by the learned Sessions Judge. It was submitted that the learned Sessions Judge, apart from the other aspect was guided by the fact that previous application seeking the same document was rejected on 12.11.2009 and as no revision/application was preferred against the said order, the said order attained finality and, therefore also, the application could not be granted. Various reasons were recorded by the learned Sessions Judge, but in the submission of the learned Counsel, the same were ex facie erroneous. She submitted that it is true that if the last order dated 20.8.2010 passed by the learned Sessions Judge has also not been challenged by the applicant - original accused before the higher forum, but in her submission such should not operate as a bar in moving this Court for additional evidence as per the provisions of Section 391 of Cr P.C. In the submission of the learned Counsel, if there was any relevant material, which may help the learned Sessions Judge to render justice, there is no reasons why such documents of the evidence should not come on the record. She submitted that denial of production of such evidence is against the principles of fair trial, which is the right of all accused and she submitted that in the present case, the sentence imposed is not an ordinary one or minor, but is a death sentence imposed upon the applicant together with the other accused. Therefore, when such a heavy punishment is imposed before such is considered in the appeal, it is a fit case where Court may exercise the power under Section 391 of Cr.P.C., and direct the production of the evidence.
Whereas, the learned Counsel for the State submitted that the application at the relevant point of time was already dismissed by the learned Sessions Judge and, therefore, this Court, when the appeal is pending, would not quash the order passed by the learned Sessions Judge under Section 91 of Cr.P.C. He submitted that the present case is not like regular Criminal Appeal, where the judgement and order of the learned Sessions Judge for recording conviction and imposing sentence is to be considered at the final hearing of the appeal, but in his submission, it is a case where the reference is already made to this Court by the learned Sessions Judge for confirmation of the death sentence and this Court when proceeds with the hearing of the said confirmation case, it has power under Section 367 of Cr.P.C., to direct further inquiry to be made or additional evidence to be taken and in the submission of the learned Counsel, this Court under Section 368 of Cr.P.C., has all the powers including that of acquitting the accused. Therefore, it was submitted that invoking the provisions of Section 391 of Cr.P.C., at this stage is premature, more particularly when the wider power under Section 367 of Cr.P.C., is already available to this Court. However, the learned Counsel submitted that such aspect would be required to be taken into consideration only when the hearing of the confirmation case begins and the Court after considering the evidence on record finds that the additional evidence is required, such power may be exercised. Therefore, it was submitted that the present application may not be entertained at this stage.
Before we further consider the matter, we find it appropriate to consider the relevant statutory provisions. Section 366 to 368 of Cr.P.C., reads as under:-
"366.
Sentence of death to be submitted by Court of Session for confirmation.-(1)
When the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.(2)
The Court passing the sentence shall commit the convicted person to jail custody under a warrant."
367. Power to direct further inquiry to be made or additional evidence to be taken.-
(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted persons may be dispensed with when such inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court."
368. Power of High Court to confirm sentence or annul conviction.- In any case submitted under section 366, the High Court -
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Court of Sessions might have convicted him, or order a new trial on the same or an amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if any appeal is presented within such period, until such appeal is disposed of."
The aforesaid makes it clear that at the time when the High Court exercises the power of hearing the reference made by the Sessions Court for confirmation of death sentence, the High Court may confirm the sentence or may pass any other sentence warranted by law or may annul the conviction and convict the accused of any offence, of which the Sessions Court might have convicted him or may order new trial on the same or amended charge or may acquit the accused person. Further, Section 367 of Cr.P.C., provides that when the proceedings are submitted, the High Court, if thinks fit that further inquiry should be made or additional evidence be taken upon any point of the guilt or innocence of the convicted person, it may so direct to be made or taken by the Sessions Court. The powers of the Appellate Court are provided under Section 386 of Cr.P.C., and under Section 391 the powers are provided with the Appellate Court to take further evidence. Both the sections for ready reference are reproduced as under:-
386. Powers of the Appellate Court.-
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him accordingly to law;
(b) in an appeal from a conviction -
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial; or
(ii) alter the finding, maintaining the sentence; or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence -
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent or the nature and extent of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper;
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement;
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
391. Appellate Court may take further evidence or direct it to be taken.-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
We are concerned, in the present matter, with the powers of the Appellate Court in an appeal from conviction provided as per Section 386(b) from (i) to (iii) and the said provisions provide that the Appellate Court may reverse the findings and sentence and acquit or discharge the accused or order him to be retried by the Court of competent jurisdiction subordinate to such Appellate Court or for committed trial Court or the appellate Court may alter the findings by maintaining the sentence or the appellate Court with or without altering the findings alter the nature or the extent of the sentence, but shall not enhance the sentence unless the requirements under Section 386(c) are satisfied.
The another relevant and pertinent aspect is that reference for confirmation of the death sentence is a step immediately after the conclusion of the trial and is not dependent upon the appeal preferred by the convict. The only requirement is that the death sentence shall not be confirmed until the period allowed for preferring the appeal has expired and/or if appeal is presented within such time, until such appeal is disposed of. It is true that in the present case the appeal has been preferred and the same is also admitted, but the question of confirmation of the death sentence, as such can be said as preceding the stage of appeal and even if the appeal is not preferred by the convict, confirmation of death sentence is a must and when a reference is made by the Sessions Court to the High Court, it has to consider the question of confirmation of death reference, even if the appeal is not preferred by the convict. It can rather be said that while confirming the death sentence and considering the matter under Section 368 of Cr.P.C., the High Court will have all powers as the Sessions Court had while conducting the trial. Needless to state that when the confirmation case is to be considered by the High Court, the powers under Section 367 would also be available.
The aforesaid would lead us to consider the question as to whether the matter should be considered for additional evidence under Section 391 of Cr.P.C., at this stage or such aspects, if any, of production of the additional evidence or otherwise should be considered when this Court proceeds to consider the appeal for final disposal and simultaneously confirmation of the death sentence or not or this Court may first take up the death reference and if the Court is of the view that the death sentence may be required to be confirmed, then simultaneously the appeal has got to be disposed of.
It is hardly required to be stated that the accused may succeed in their defence by various short-comings in leading the proper evidence by the prosecution and the accused may succeed for proving the defence including that of the alibi by examining their own witnesses. On the aspects of former, it is not necessary for the accused to lead their own evidence and it would be for the accused to satisfy the Court that the investigation has not been done in a proper manner or that there is lapse in the investigation or that the prosecution has not brought about of truth in a fair manner before the Court and if the accused successfully satisfies the Court he would be entitled to benefit thereby. Whereas in the latter case, the burden would be upon the accused to prove the evidence by examining his witnesses.
In the present case, as observed earlier, the aspects of making submission for any short-comings in the evidence of prosecution case on account of non-production of certain independent witness was to be considered at the time of final disposal of the appeal. On behalf of the accused including the present accused, the attempts were made, but they could not succeed before the learned Sessions Judge in frustrating substratum of the case of prosecution for evidence against the accused. On the latter aspect, it is a fact that the attempt was made but the learned Sessions Judge for the reasons recorded in the order did not accept the request and the accused at the relevant point of time did not challenge the said order of the learned Sessions Judge before the higher forum.
We find that when the entire evidence has already come on record on the basis of which the learned Sessions Judge has recorded the final conclusion, the aspects of direction for production of documents, considering the facts and circumstances of the case, should await until the Court proceeds with the hearing of the death sentence of the appeal finally and it is at that stage if the Court is satisfied that it was a fit case where the learned Sessions Judge should have directed the production of the material as prayed by the applicant, this Court may exercise the power at that stage, may be under Section 367 or under Section 391 of the Code, as the case may be. However, it appears to us that confirmation case is neither open, nor final hearing of the appeal has commenced. Therefore, it would be premature to consider the genuine requirement for issuing direction as prayed by the applicant, may be keeping in view the relevancy aspect or keeping in view the observance of the principles of fair trial. As such, the said aspect in our view can await or rather be considered simultaneously with the hearing of confirmation case or the conviction appeal or both. Therefore, we are of the view that the present application does not deserve to be entertained at this stage by segregating the hearing of the death reference and/or the conviction appeal or both and the judicial discretion demands that such aspect, for which the direction prayed in the present application is considered simultaneously with the hearing of the confirmation case or the final hearing of conviction appeals or both.
The learned Counsel for the appellant did rely upon certain decision, to which we find that they are of no help since the controversy involved in the present application is as to whether we should exercise the judicial discretion for directing the production of additional evidence under Section 391 of Cr.P.C., at this stage or not or should it be deferred and considered simultaneously with the hearing of the confirmation case or final hearing of the appeal or both. However, we find it proper to refer to the decision of the Apex Court in the case of Sudevanand vs State (through CBI) in Criminal Appeal No.174 of 2012 decided on 19.1.2012. The perusal of the facts of the said before the Apex Court shows that it was not a matter wherein confirmation case for death sentence was simultaneously to be considered by the Delhi High Court. Therefore, the facts of the said case are distinguishable to apply the said case law. Similar aspects also came up for consideration before the Apex Court in the case of Dilip Premnarayan Vs. State of Maharashtra, reported in AIR 2010 SC 361, which was a case for confirmation of death sentence also, when the High Court dismissed the appeal finally, the appeals against the order of conviction and death sentence was confirmed and the Apex Court did observe that the proceedings before the High Court in the confirmation case are in the nature of original proceedings and the extended trial. If the confirmation case is considered as that of the extended trial the power under Section 367 will be wide enough but such aspects also, in any case, will be required to be considered when the Court proceeds with the hearing of death sentence - confirmation case or final hearing of the appeal or both. But in our view, in none of the decisions upon which the reliance has been placed, it has been laid down that such powers for additional evidence may be under Section 367 or Section 391 is to be exercised prior to beginning of the hearing of confirmation case of death sentence or final hearing of the appeal or both.
We find it proper to record that there is voluminous evidence laid by the prosecution of not less than 245 witnesses. Therefore, the genuine requirement of the additional evidence, including the aspects of relevancy and maintenance of the principles of fair trial should not be decided at this stage, but it should rather be decided simultaneously when hearing of the confirmation case begins or the final hearing of the appeal begins or both. Such being the peculiar circumstances, the matter is required to be considered accordingly.
Hence, we find that no further orders deserve to be passed in the present application at this stage, therefore, the present application is disposed of with the observations that both the parties may agitate the rights and contentions available in law at the time of hearing of confirmation case and/or final hearing of the appeal(s), including that of appropriate direction for production of the additional evidence or otherwise.
Ordered accordingly. The Criminal Misc. Application stands disposed of.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod