Rajasthan High Court - Jaipur
State Of Rajasthan vs Javed Khan @ Javed Juniyar And Ors on 22 July, 2019
Author: Sabina
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Death Reference No. 1/2016
State of Rajasthan
----Appellant
Versus
Dr. Abdul Hameed S/o Ibrahim Khan By caste Musalman,
R/o Andiyai Gali, Nale Ki Pulia P.S. Rasulpur, Fiirojabad
(U.P.)
----Respondent
2. D.B. Criminal Appeal No. 1024/2014 Dr. Abdul Hameed S/o Ibrahim Khan By caste Musalman, R/o Andiyai Gali, Nale Ki Pulia P.S. Rasulpur, Forojabad (U.P.)
----Appellant Versus State of Rajasthan Through PP
----Respondent
3. D.B. Criminal Appeal No. 1073/2014 Rayees Beg S/o Usman Beg Caste Musalman R/o 19/65, Mohalla Gadiyaya, Tajganj, Agra (U.P.)
----Appellant Versus State of Rajasthan Through PP
----Respondent
4. D.B. Criminal Appeal No. 1092/2014 Javed Khan@javed Junior S/o Mohammed Shafi Khan Caste Musalman, R/o Naya Bazar, Kathmandu (Nepal)
----Appellant Versus State of Rajasthan Through PP
----Respondent (Downloaded on 01/09/2019 at 08:26:07 PM) (2 of 71) [CRLDR-1/2016]
5. D.B. Criminal Appeal No. 1093/2014
1. Latif Ahmed Baja S/o Gulam Mohammed Baja by caste Sunni Musalman, R/o Samaswadi, Near Gandhi Memorial College, Shrinagar (J&K).
2. Mohammed Ali Bhatt @ Mehamood Keeley, S/o Haji Sher Ali, by caste Musalman, R/o Hasnabad, Rainbadi, Srinagar (J&K).
3. Mirza Nisar Hussain @ Naja S/o Mirza Ali Mohammed by caste Musalman, R/o Khan Ka Mohalla, Namchabal, Near GM College, Srinagar (J&K).
(All At present confined at Central Jail, Jaipur)
----Appellants Versus State of Rajasthan Through PP
----Respondent
6. D.B. Criminal Appeal No. 1094/2014 Abdul Goni @ Asadulla @ Nasaruddin @ Nikka @ Umer @ Majeed Khan @ Raja S/o Bharuddin Goni, Caste Sunni Musalman R/o Usmaniya Modern Academy, Badarwa (Jammu-Kashmir)
----Appellant Versus State of Rajasthan Through PP
----Respondent
7. D.B. Criminal Appeal No. 113/2016 Dr. Abdul Hameed S/o Ibrahim Khan By caste Musalman, R/o Andiyai Gali, Nale Ki Pulia P.S. Rasulpur, Firojabad (U.P.)
----Appellant Versus State of Rajasthan Through Pp
----Respondent
8. D.B. Criminal Appeal No. 188/2016 State of Rajasthan
----Appellant Versus (Downloaded on 01/09/2019 at 08:26:07 PM) (3 of 71) [CRLDR-1/2016]
1. Javed Khan@ Javed Junior S/o Mohammed Shafi Khan Caste Musalman, R/o Naya Bazar, Kathmandu (Nepal).
2. Abdul Goni @ Asadulla @ Naruddin @ Nikka @ Umar @ Majeet Khan @ Raja S/o Baharuddin Goni by caste Musalman R/o Usmaniya Garden Academy, Badarwa (J&K)
3. Latif Ahmed Baja S/o Gulam Mohammed Baja by caste Sunni Musalman, R/o Samaswadi, Near Gandhi Memorial College, Shrinagar (J&K).
4. Mohammed Ali Bhatt @ Mehamood Keeley, S/o Haji Sher Ali, by caste Musalman, R/o Hasnabad, Rainbadi, Srinagar (J&K).
5. Mirza Nisar Hussain @ Naja S/o Mirza Ali Mohammed by caste Musalman, R/o Khan Ka Mohalla, Namchabal, Near GM College, Srinagar (J&K).
6. Rayees Beg S/o Usman Beg Caste Musalman R/o 19/65, Mohalla Gadiyaya, Tajganj, Agra (U.P.)
9. D.B. Criminal Appeal (Db) No. 341/2018 State of Rajasthan
----Appellant Versus Farukh Ahmed Khan @ Swaroop Baba @ Anwar S/o Gulam Kadir Khan Caste Sunni Musalman R/o Anantnag, Jammu-Kashmir at present 22-K Sarkari Bhawan, Lalnagar, Khanpur
----Respondent (Downloaded on 01/09/2019 at 08:26:07 PM) (4 of 71) [CRLDR-1/2016] For State : Ms. Rekha Madnani P.P. For Accused : Mr. Suresh Kumar Sahani with Mr. Syed Saadat Ali, Mr. R.M. Sharma and Mr. Manender Singh Solanki Adv. for accused Dr. Abdul Hameed.
Mr. S.S. Hasan with Mr. Fahad Hasan and Mr. Kashif Hussain, Adv. for accused Mr. Rayees Beg, Mr. Javed Khan @ Javed Junior, Mr. Latif Ahmed Baja, Mr. Abdul Goni @ Asadulla @ Nasaruddin @ Nikka, and Mr. Farukh Ahmed Khan @ Swaroop Baba @ Anwar.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / Order Date: 22nd July,2019 Sabina J.
Vide this order above mentioned appeals would be disposed of.
Prosecution story was set in motion on the basis of the statement of complainant Ashok Sharma. Complainant stated in his statement that on 22.5.1996 he was working as a Conductor on Roadways Bus No. RJ-07-P-1038 Bikaner Depot and they started at 11.00 a.m., from Agra for Bikaner. Bus was being driven by Ramji Lal. There were 49/50 passengers in the bus who had boarded from Agra. Two passengers had taken tickets from Agra to Jaipur. However, the said passengers got down at Mahwa and handed over the tickets to the complainant by stating that he could use the same for the welfare of some poor (Downloaded on 01/09/2019 at 08:26:07 PM) (5 of 71) [CRLDR-1/2016] persons. The said persons were aged about 27/28 years. He did not know whether the said persons were having any luggage with them or not. Both the said persons spoke in Hindi. Two constables and a lady constable were sitting on the back seat of the bus. Complainant went towards them for issuance of tickets. When the bus had covered about 3- 4 kilometers from Mahwa towards Dausa, there was a loud blast in the bus near Samleti village. The roof, windows and doors of the bus were blown away and the passengers suffered injuries. Luggage of the passengers was scattered here and there. On account of loud blast, he had become hard of hearing. He had suffered injuries on his right hand and leg. The incident had occurred due to heavy explosive substance/bomb. Many passengers died in the incident and others suffered injuries. The explosion had been done with a view to cause loss of life and property.
On the basis of the statement of the complainant, formal FIR No. 148 dated 22.5.1996 was registered at Police Station Mahwa, District Dausa under Section 302, 307, 120B Indian Penal Code, 1860 and Section 4/5 of the Explosives Act, 1984 (hereinafter referred to as 'the Act') and Section 3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as 'PDPP Act').
After completion of investigation and necessary formalities challans were presented in stages against accused Dr. Abdul Hameed, Rayees Beg, Javed Khan @ Javed Junior, Latif Ahmed Baja, Mohd. Ali Bhatt @ Mehamood Keeley, Mirja Nisar Hussain @ Naja, Abdul Goni @ Asadulla @ Nooruddin @ Naka @ Umer @ Majeed Khan (Downloaded on 01/09/2019 at 08:26:07 PM) (6 of 71) [CRLDR-1/2016] @ Raja, Farukh Ahmed Khan @ Swarup Baba @ Anwar, Riyaz Ahmed Sheikh @ Maulvi, Chandra Prakash Agrawal.
So far as accused Kulvindrajeet Singh @ Happy is concerned, he was discharged vide order dated 15.2.2003 after taking cognizance against him. Accused Riyaz Ahmed Sheikh @ Maulvi died on 24.8.1999 and proceedings against him were dropped. Proceedings were dropped against accused Chandra Prakash vide order dated 9.1.2014.
Charges were framed against the accused under Section 302, 307, 120B IPC, Section 4/3 of the PDPP Act and Section 4/5 of the Act. Accused did not plead guilty and claimed trial.
In order to prove its case, prosecution examined 99 witnesses. Accused when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that they were innocent and were falsely involved in this case.
Accused Abdul Hameed appeared in the witness box as D.W.1.
Trial court vide judgment dated 29.9.2014 ordered the acquittal of accused Farukh Ahmed Khan. Vide impugned judgment accused Dr. Abdul Hameed was convicted qua offence punishable under Section 302, 307, 120B IPC, Section 4 of PDPP Act and Section 4/5 of the Act. Accused Rayees Beg was convicted qua the offence punishable under Section 302 read with Section 120B, Section 307 read with Section 120B IPC and Section 4 of PDPP Act read with Section 120B IPC. The other accused Javed Khan @ (Downloaded on 01/09/2019 at 08:26:07 PM) (7 of 71) [CRLDR-1/2016] Javed Junior, Latif Ahmed Baja, Mohd. Ali Bhatt @ Mehmood Kile, Miraj Nisar Hussain @ Naja, Abdul Goni @ Asadulla @ Nooruddin @ Naka @ Umer @ Majeed Khan @ Raja, Farukh Ahmed Khan @ Swarup Baba @ Anwar were convicted qua the offence punishable under Section 302 read with Section 120B, 307 read with Section 120B IPC, Section 4 of PDPP Act read with Section 120B IPC, Section 4 and 5 of the Act read with Section 120B IPC.
Vide order of the even date, Dr. Abdul Hameed was awarded death sentence under Section 302 IPC, imprisonment for life under Section 307 IPC and fine of Rupees One lac. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 3 years. He was ordered to undergo imprisonment for life under Section 120B IPC with fine of Rupees One lac. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 3 years. He was sentenced to undergo 10 years rigorous imprisonment under Section 4 of PDPP Act with fine of Rs. 50,000/-. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 2 years. Under Section 4 of the Act, he was sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 25,000/-. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for one year. He was sentenced to undergo 7 years rigorous imprisonment under Section 5 of the Act with fine of Rs. 15,000/-. It was further ordered that in case of default of (Downloaded on 01/09/2019 at 08:26:07 PM) (8 of 71) [CRLDR-1/2016] payment of fine, he would further undergo rigorous imprisonment for 6 months.
The other accused were sentenced to undergo imprisonment for life under Section 302 read with Section 120B IPC with fine of Rupees One lac. It was further ordered that in case of default of payment of fine, they would further undergo rigorous imprisonment for 3 years. Under Section 307 read with Section 120B IPC they were sentenced to undergo imprisonment for life with fine of Rupees One lac. It was further ordered that in case of default of payment of fine, they would further undergo rigorous imprisonment for 3 years. They were sentenced to undergo 10 years rigorous imprisonment under Section 4 of PDPP Act read with Section 120B IPC with fine of Rs. 50,000/-. It was further ordered that in case of default of payment of fine, they would further undergo rigorous imprisonment for 2 years. They were sentenced to undergo 10 years rigorous imprisonment under Section 4 of the Act read with Section 120B IPC with fine of Rs. 50,000/-. It was further ordered that in case of default of payment of fine, they would further undergo rigorous imprisonment for one year. They were sentenced to undergo 7 years rigorous imprisonment under Section 5 of the Act read with Section 120B IPC with fine of Rs. 15,000/-. It was further ordered that in case of default of payment of fine, they would further undergo rigorous imprisonment for 6 months. Trial court had sent Death Reference No. 1/2014 for confirmation of death sentence awarded to Dr. Abdul Hameed. Convicts also preferred their appeals challenging (Downloaded on 01/09/2019 at 08:26:07 PM) (9 of 71) [CRLDR-1/2016] their conviction and sentence as awarded by the trial court. State also preferred appeal challenging the acquittal of accused Farooq Ahmed Khan @ Swarup Baba @ Anwar. State has also filed appeal seeking enhancement of sentence awarded to convicts Javed Khan, Abdul Goni, Latif Ahmed Vaja, Mohd. Ali Bhatt, Miraj Nisar Hussain and Nisar Beg.
Vide order dated 30.4.2015, Division Bench of this court remanded the case of Dr. Abdul Hameed to the trial court to pass a fresh order of sentence within 3 months. The Death Reference No. 1/2014 was declined at that stage. In pursuance to the said order, trial court passed the order dated 17.12.2015 and awarded death sentence to Dr. Abdul Hameed under Section 302 IPC, imprisonment for life under Section 307 IPC with fine of Rupees One lac. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 3 years. He was ordered to undergo imprisonment for life under Section 120B IPC with fine of Rupees One lac. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 3 years. He was sentenced to undergo 10 years rigorous imprisonment under Section 4 of PDPP Act with fine of Rs. 50,000/-. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 2 years. Under Section 4 of the Act, he was sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 25,000/-. It was further ordered that in case of default of payment of fine, he would further (Downloaded on 01/09/2019 at 08:26:07 PM) (10 of 71) [CRLDR-1/2016] undergo rigorous imprisonment for one year. He was sentenced to undergo 7 years rigorous imprisonment under Section 5 of the Act with fine of Rs. 15,000/-. It was further ordered that in case of default of payment of fine, he would further undergo rigorous imprisonment for 6 months.
Trial court has again sent Death Reference No.1/2016 for confirmation of death sentence awarded to Dr. Abdul Hameed. Dr. Abdul Hameed has also preferred appeal challenging his sentence part awarded by the trial court vide order dated 17.12.2015.
P.W.1 Bhup Singh was initially examined on 28.3.2003 and was thereafter again examined on 26.4.2012. He deposed that on 22.5.1996 he boarded the Bus No. RJ-07- P-1038 from Bharatpur to Jaipur alongwith his other family members. He had boarded the bus at 1.00 p.m. Bus stopped at Mahwa at about 2/2.30 p.m. About 5/4 passengers got down from the bus, whereas, 3-4 passengers boarded the bus. Two persons got down from the bus at Mahwa and out of them one person was wearing black glasses, whereas, other was wearing a cap. Both the persons were aged about 20-25 years. When the bus had reached near the Samleti village, there was a blast in the bus. As a result he suffered injuries. Since the occurrence had taken place about 16 years back, he could not identify the accused.
P.W.2 Amar Singh had deposed that he was also travelling in the bus in question on 22.5.1996 and had suffered injuries due to bomb blast in the bus. (Downloaded on 01/09/2019 at 08:26:07 PM)
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P.W.3 Guman Singh was initially examined on
28.3.2003 and was again examined on 22.5.2012. The said witness deposed that on 22.5.1996 he was travelling in the bus-in-question from Bharatpur to Bikaner. The bus had stopped at Samleti. When the bus had covered about 2 kilometers after starting, there was a bomb blast in the bus. Many persons suffered injuries. He stated that he had identified one person in the Jail correctly who had got down from the bus at Samleti but he could not identify him today in the court as the occurrence had occurred about 10/15 years ago. When he had boarded the bus, he had tried to place his luggage but the person wearing a cap told him not to move his big suitcase with army colour cover. The behaviour of that person was abnormal. He was smoking a cigarette. When the said person alongwith another got down from the bus, suitcase belonging to them was not with them.
P.W.4 Ishwar Singh was declared hostile. P.W.5 Ranvir Singh deposed that he was travelling in the bus-in-question and had suffered injuries on account of the bomb blast.
P.W.6 Bal Krishan has deposed that on 22.5.1996, he was travelling in the roadways bus bearing No. RJ-07-P- 1038 from Mahwa to Jaipur. Conductor had handed over a ticket to him from Agra to Jaipur. On the said ticket seat No. 22-23 were written. When the bus had just reached near Samleti, there was a bomb blast in the bus. He suffered injuries. He had handed over the ticket to the (Downloaded on 01/09/2019 at 08:26:07 PM) (12 of 71) [CRLDR-1/2016] police officials which had been given to him by the bus conductor.
P.W.7 Jai Prakash has deposed that he was travelling in the bus-in-question on the day of incident and after the bus had started from Mahwa, there was a bomb blast and he had suffered injuries. To the similar effect are the statements of P.W.8 Maya Devi, P.W. 11 Sharda Devi, P.W.12 Renu Devi, P.W.13 Vimal Kumar, P.W.14, Sunita, P.W.15 Sabir, P.W.16 Mitthan Lal, P.W.17 Rameshwar Lal, P.W.18 Harswarup Chaurasia, P.W.19 Jhabu, P.W.21 Santosh Devi, P.W.22 Bhagwan Singh, P.W.23 Dashrath Singh.
P.W.23 Dashrath Singh also deposed that he had identified the person, who had got down from the bus, in Jail but he could not identify him on that day as lot of time had elapsed.
P.W.24 Janki Prasad has deposed that he was travelling in the bus-in-question on the day of incident and when the bus reached about 2 kilometers from Mahwa, there was a bomb blast and he had suffered injuries. He deposed that he had identified the person, who had got down at Mahwa, in Central Jail, Jaipur. However, identification parade memo Ex. P.8 was not signed by him because he was unable to affix his signatures. He showed his inability to identify the accused as lot of time had elapsed.
P.W.28 Jaganram Meena deposed that on 22.5.1996, he had travelled from Laxmangarh to Mahwa in the bus-in- question. Two passengers had got down at Mahwa. One of them was fair and had not shaved his beard for 2/3/5 days (Downloaded on 01/09/2019 at 08:26:07 PM) (13 of 71) [CRLDR-1/2016] and was wearing black coloured glasses and was aged about 20-25 years. He identified accused Abdul Hameed as the said person. He stated that the other passenger with accused Abdul Hameed was not present in the court. When the bus had left Mahwa and had covered a distance of 4-5 kilometers towards Samleti, there was a bomb blast in the bus. Many passengers suffered injuries and many died.
P.W.29 Murari Lal deposed that on 22.5.1996, he was travelling in the bus-in-question. Accused Dr. Abdul Hameed was sitting on the seat in front of him. The witness identified the accused by touching him. He also stated that the accused was smoking and was sitting quietly and appeared to be anxious. He was wearing a cap and was also wearing spectacles. He had not shaved his beard for about 2-3 days. The said person had got down at Bharatpur bus stand and had purchased a book. He (witness) had got down at Bharatpur and came to know that there was a bomb blast in the bus when it had reached near village Samleti.
P.W.30 Rajesh Kumar Yadav deposed that on the day of incident he was travelling in the bus-in-question and had boarded the bus at Mahwa. At that time, two persons had got down from the bus, aged about 25-26 years. He identified accused Abdul Hameed as one of the persons who had got down from the bus at Mahwa. The other person was not present in the court. On that day, he was going to Jaipur in connection with arrest of an accused in FIR No. 95/1996 under Section 302 IPC. In his cross- (Downloaded on 01/09/2019 at 08:26:07 PM)
(14 of 71) [CRLDR-1/2016] examination, he deposed that he was not called to participate in the identification parade.
P.W.39 Farida deposed that on the day of incident, she was travelling in the bus in question and had suffered injuries on account of bomb blast in the bus.
P.W.41, Bimala Khadia deposed that on 22.5.1996 she had boarded the bus from Mahwa alongwith Jagan Ram and Rajesh constables in connection with arrest of an accused in FIR No. 95/96 under Section 302 IPC. When the bus reached about 3 kilometers ahead of Mahwa there was a bomb blast in the bus. She had suffered injuries in the incident.
P.W.46 Ashok-complainant deposed that on 22.5.1996, he was conductor on Bus No. RJ-07-P-1038. The bus had started from Agra for Bikaner. Some passengers got down at Mahwa. Two young boys gave him two tickets from Agra to Jaipur and said that help some poor person with the said tickets and they got down from the bus. Three police officials boarded the bus at Mahwa. He had identified the accused Dr. Abdul Hameed in Jail and stated that at that time accused was not having any beard. When the bus had covered about a distance of 2-3 kilometers and had reached near village Samleti, there was a bomb blast in the bus. He had suffered injuries in the incident. In his cross- examination, he deposed that he could identify the accused Dr. Abdul Hameed as he looked like the same person who had handed over to him the tickets.
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(15 of 71) [CRLDR-1/2016] P.W.47 Dr. Babulal deposed that on 22.5.1996 he had medically examined injured Govind Narain and proved report Ex.P25.
P.W.48 Dr. Prithviraj Meena deposed that on 22.5.1996 he had medically examined patient Renu, Sharda, Kalyan, Surekha, Vimal, Guman Singh, Kamal Singh, Mrs. Santosh, Kallu, Mrs. Farida, Amar Singh, Bhup Singh, Virendra, Bhagwan Singh, Gulab Singh, Ganeshi Prasad, Khubi Ram, Ashok Kumar, Kumari Aarti and Gaurav and exhibited their reports Ex. P26 to Ex. P46.
P.W.49, Mahendra Vashishth deposed that on 22.5.1996, he had medically examined injured Kallu, Ranu and Maya Devi and proved reports Ex.P47 to Ex. P50.
P.W.53 Dr. S.K. Pathak deposed that on 23.5.1996 he had conducted postmortem examination of Shalu, Ramji Lal, Naval Devi, Vikesh Kumari, Kumari Deepa, Ratan Lal, Mahesh Chand, Yaduvender, one unknown lady, two unknown males, Jitendra, Ratan Lal and Mohan Lal. He proved their postmortem reports Ex.P.53 to Ex.P66.
P.W.56 Dr. N.L. Desania deposed that on 22.5.1996 he had medically examined injured Ishwar Singh, Farida Pannan, Asfaq, Israt, Bal Krishan, Jai Prakash, Ramayya, Yakub and Yadvendra and proved their reports Ex.P70 to Ex. P.76.
P.W. 68 Dr. Sharad Kumar Singhal deposed that on 22.5.1996, he had medically examined injured Sawai Singh and Mitthan Lal and proved their reports Ex.P94 and Ex. P95.
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(16 of 71) [CRLDR-1/2016] P.W.70, Dr. Sheetal Jain deposed that on 22.5.1996, she had medically examined Amar Singh and Dashrath Singh and proved their reports Ex.P.97 and Ex.P98.
P.W.72 Dr. P.C. Vyas deposed that on 22.5.1996 he had medically examined Ishwar Singh, Smt. Santosh, Ranveer Singh, Bhagwan Singh, Janki Prasad and Rameshwar Lal and proved their reports Ex.P113 to Ex.P118.
P.W.79 Dr. Lokendra Sharma deposed that on 23.5.1996, he had medically examined Shabbir, Bhup Singh, Pinku, Dhirendra, Khubi Ram and Ashok and proved their reports Ex.P127 to Ex.P.136.
Confessional statement of P.W.95 Pappu @ Salim was recorded on 9.9.1997 (Ex.174). However, when Pappu @ Salim appeared in the witness box as P.W.95, he retracted from his confessional statement. In his cross-examination, he stated that his statement was recorded under Section 164 Cr.P.C. The Magistrate had explained to him, before recording his statement, that he should not make the statement under any pressure and should voluntarily make the statement. He had signed the statement but it was not read over to him.
P.W.97 Sureshchandra Sharma deposed that on 9.9.1997, he was posted as Chief Judicial Magistrate, Jaipur. He had recorded the statement of Pappu @ Salim Ex.P174 in FIR No. 39/96 at Police Station Gandhi Nagar, Jaipur under Section 307, 120B IPC and Section 3, 4 and 5 of the Act.
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(17 of 71) [CRLDR-1/2016] P.W.99 K.P. Saxena deposed that on 21.10.2002 he had recorded confessional statement of Pappu Ex. P189.
P.W.60 Pramod Chandra Pandey deposed that he was working as Senior Administrative Officer with NDTV. News item Ex.P84 was in the hand of Appan Menon (since deceased) Editor.
P.W.86 Bhagwan Dass deposed that he was posted as Addl. Chief Judicial Magistrate, Jaipur. On 17.7.1996 he had recorded statement of accused Javed Khan @ Javed Junior under Section 164 Cr.P.C. Ex.P153. The statement had been given by the accused of his own free will and without any pressure or coercion. Accused was made to understand that he was not bound to confess his guilt and in case he made the statement, it could be used against him.
Ex.P176 is the report of the expert and the conclusion part reads as under :-
"From the above observation, it appears that a powerful explosion has taken place in this moving bus by using high explosion. The nature of damage indicates that the improvised explosive device has been planted under seat No. (17,18) which had exploded when the bus was in motion. The possibility of using the time device with while colour plastic (Polythene) bag as part of container in this explosion could not be ruled out.
In order to know the type of explosive used and for other related problems, it is suggested to forward the related materials to the laboratory for further examination."
Ex.P182 is the report by the Forensic Science Laboratory, the conclusion part which reads as under :- (Downloaded on 01/09/2019 at 08:26:07 PM)
(18 of 71) [CRLDR-1/2016] "The approximate quantity of Explosive charge (RDX) used in the said explosion in Rajasthan Roadways Bus could be around 2.5 Kg. However, the definite opinion could not be given due to various factors."
P.W.66 Shanker Lal deposed that on 26.6.1997 he had arrested accused Abdul Hameed and Rayees Beg.
P.W.69 Rajesh Sharma deposed that on 15.9.1997 he had arrested accused Chandra Prakash.
P.W.77 Sanjay Gupta deposed that he was runnning a book shop at Police Station Bharatpur. He had produced the bill Ex.P.123 and the same was taken in possession vide memo Ex. P124.
P.W.80 Ashok Kumar Kulshreshtha deposed that he was a member of the inquiry team formed to investigate the case. He had recorded statement of Niraj Nirajo, who was working in the office of BBC at New Delhi, under Section 161 Cr.P.C. On 6.7.1997 accused Rayees Beg had shown him the place where his Head Salar used to stay and Ex.P137 in this regard was prepared.
P.W.82 Sarju Prasad deposed that he was Manager of Hotel ELORA, Gorakhpur. On 12.5.1996, one person named Javed had stayed in his hotel alongwith another person. Copy of the hotel register in this regard was placed as Ex. P146.
P.W.84 Ramji Yawan deposed that on 19.5.1996 he was on duty at the Check Post Sonoli. On 19.5.1996 between 10 to 12 'O' Clock, two persons namely Rayees Ahmed and Mohd Ali were stopped and enquiry was made from them. Their names had already been entered in the (Downloaded on 01/09/2019 at 08:26:07 PM) (19 of 71) [CRLDR-1/2016] register from Nepal to India. Name of accused Javed was entered in the register on 16.5.1996 as per Ex. P.148. Hilal Ahmed and Najeer Ahmed had entered from Nepal to India as per Ex. P147 and Ex. P148.
P.W.85 Vimal Motilal Rajwanshi deposed that on 23.5.1996, he received a message from DIG, ATS Ahmedabad and a fax message from Addl. D.G.P. (Intelligence), State of Gujarat that terrorists had entered India via Nepal and were planning to explode bombs at sensitive places. On 23.5.1996, one police party headed by Police Inspector P.G. Baghela reached Jamalpur Chakla and searched Ankul Guest House and found that 4 persons had stayed there after coming from Kathmandu and had left the Guest House on 25.5.1996 at 12 'O' Clock. Raseed reached Ahmedabad from Kathmandu via Mumbai. Four persons were interrogated and Asadulla was one of them. Asadulla revealed the names of Javed Khan, Raseed Shah Abdul Shah. Asadulla and Raseed were residents of Pakistan, where, Julfiquar and Javed were residents of Kathmandu. One digital diary was recovered from Asadulla in which some entries were made in code language. Indian as well as Nepali calender and visiting cards were recovered from Javed. One fuse wire, one Chinese pot were recovered from Raseed. During investigation, it transpired that in March and April, 1996 there was a meeting of Jammu and Kashmir Front under the Chairmanship of Bilal Ahmed resident of Ravalpindi and its Secretary was Asadulla. The master mind behind the Mumbai bomb blast was Tiger Memon and they had decided to effect more attacks with a (Downloaded on 01/09/2019 at 08:26:07 PM) (20 of 71) [CRLDR-1/2016] view to disturb Jammu and Kashmir elections. Asadulla had crossed the border of Delhi and bomb blast was carried out in July and then Asadulla moved to Ahmedabad. FIR was registered against Asadulla in Ahmedabad Ex.P149 and its translation was in Hindi as Ex. P151.
P.W.87 Man Prakash deposed that he had taken in possession hotel record vide Ex. P154, where accused Javed had stayed.
P.W.88 Madan Mohan Atre deposed that during investigation of the case, he received information on 22.5.1996 that Hameed and Abdul Hameedulla had purchased one biscuit packet from Baba Tea Stall, Bharatpur and one book from a book shop on 22.5.1996. Bal Krishan had produced the bus ticket Ex. P156 before him.
P.W.98 Nand Lal Sharma deposed that on 29.6.1997 identification parade of accused Abdul Hameed was got conducted by him from the witnesses and he proved the reports Ex. P185 to Ex.P188.
Learned State counsel has submitted that investigation was started together with regard to 3 bomb blasts. On 26.1.1996, a bomb blast had occurred at S.M.S. Stadium, Gandhi Nagar, Jaipur and on 21.5.1996, a bomb blast had taken place at Lajpat Nagar, Delhi. Jammu and Kashmir Islamic Front had taken the responsibility of the bomb blasts as per news reports Ex.P84. Some of the accused had entered India from Nepal. It is a case of an organised crime. When the investigation of the case was going on in the Stadium Blast case in FIR No. 39/96, (Downloaded on 01/09/2019 at 08:26:07 PM) (21 of 71) [CRLDR-1/2016] registered at Police Station Gandhi Nagar, Jaipur under Section 307, 120B IPC, confessional statement of Pappu Khan @ Salim was recorded on 9.9.1997 Ex.P174. Pappu Khan @ Salim was also arrested in the present case on 24.10.1997 and his statement under Section 164 Cr.P.C. Ex.P.189 was recorded. In his confessional statement, Pappu Khan @ Salim had stated that he used to drive a jeep in Village Farah. He met Salar in the mosque in their village Farah. Salar told him that he would help them in raising funds for the Madarsa. After some time, he left the driving a jeep and purchased a car and became a car driver under Rayees Ahmed. Rayees Ahmed met Chandra Prakash and received a bag from Chandra Prakash and give him Rs. 10,000/-. They also went to a house where a Doctor namely Pappu was staying. Then he was taken to Kashmir and he met Rayees Ahmed in a room. He was told that Abdulla would meet him at Madarsa at Farah and he returned to Farah via Delhi. He met Abdulla, who was teaching in Aligarh University. He came to know that Salar and others were dealing in explosive substances. When he confronted this aspect to Salar, he (Salar) got annoyed with him and Salar started fighting with Abdulla. He (Pappu) left the Madarsa. Then Salar called Pappu inside the Madarsa and threatened him that in case he told anyone about the fact that they were dealing in explosives, he would kill him. He met Abdul Samad and a Doctor of Firojabad in Madarsa of village Varah. Abdul Samad gave him Rupees 10,000/- for purchase of plastic watch. Salar instructed him to go to Roopwas with Jilani and bring spices. When he brought the (Downloaded on 01/09/2019 at 08:26:07 PM) (22 of 71) [CRLDR-1/2016] packets from Chandra Prakash, he met Pappu from Firojabad and Yusuf from Meerut. Doctor was also present there. After some time Doctor brought out from his bag a plastic watch and a bundle of wire and handed over the same to Abdul Samad. After three days, Salar, Abdul Samad and Jilani went with him in his vehicle to Firojabad in a room above the shop of Doctor Hameed. He returned home. After four months, he came to know that there had been a bomb blast in a roadways bus. Salar told him that he had got the bus timings from Kashmir Hawaldar and the bomb had been kept in a water kettle in a bus by Abdulla and Doctor and they had escaped by getting down from the bus at Mahwa. He was arrested at Jaipur bus stand and, thereafter, he got arrested Chandra Prakash. Learned State Counsel has further submitted that Pappu Khan @ Salim became an approver in this case and his statement was relevant. Learned counsel has further submitted that from the statements of conductor as well as the injured witnesses it was duly established that Dr. Hameed had got down from the bus at Mahwa and thereafter bomb blast had taken place in the bus. Injured witnesses as well as the Conductor had duly identified Dr. Abdul Hameed in an identification parade conducted during investigation. In the bomb blast, 14 passengers had died and 39 passengers had suffered injuries. From the report of the FSL it was evident that 2.5 Kg. RDX had been used in the blast. Accused Abdul Hameed had been rightly awarded death penalty as the crime committed by him was an act of terrorism. Accused Abdul Hameed had played an active role (Downloaded on 01/09/2019 at 08:26:07 PM) (23 of 71) [CRLDR-1/2016] by leaving bomb in the bus. Accused Abdul Hameed is a previous convict in the Stadium blast case. All the accused in connivance with each other had committed a grave offence and all of them were liable to be awarded death sentence. The trial court has erred in ordering acquittal of accused Farukh.
In support of her arguments, learned State Counsel has placed reliance on the judgment of Hon'ble Supreme Court in Dana Yadav Vs. State of Bihar (2002) 7 SCC 295 wherein it was held as under :-
"7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen (supra) it was observed:-
"There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration."
8. In the case of State of Maharashtra Vs. Shukhdev Singh, it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in court for the first time, conviction can be based. In the case of Ronny alias Ronald James Alwaris and Ors. (supra), it has been laid down that where the witness had a chance to interact with the accused or that in a case where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in court, the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test Identification parade was held. In that case, the concerned accused had a talk with the identifying witnesses for about 7/8 minutes. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in court without the same being corroborated either by previous identification in the test identification parade or any other evidence, was upheld by this Court. In the case of Rajesh Govind Jagesha (supra), it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying (Downloaded on 01/09/2019 at 08:26:07 PM) (24 of 71) [CRLDR-1/2016] the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by this Court. In the case of State of H.P. Vs. Lekhraj, it was observed that "..test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration."
In that case, laying down the aforesaid law, acquittal of one of the accused by High Court was converted into conviction by this Court on the basis of identification by a witness for the first time in court without the same being corroborated by any other evidence. In the case of Ramanbhai Naranbhai Patel and Ors. (supra), it was observed:
"It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellant, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case."
The Court further observed ".the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light." In these circumstances, conviction of the accused was upheld on the basis of solitary evidence of identification by a witness for the first time in court."
"In view of the law analysed above, we conclude thus:-
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an (Downloaded on 01/09/2019 at 08:26:07 PM) (25 of 71) [CRLDR-1/2016] ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test Identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in (Downloaded on 01/09/2019 at 08:26:07 PM) (26 of 71) [CRLDR-1/2016] the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first Information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Pawan Kumar Vs. State of Haryana, (2001) 3 SCC 628, wherein it has been held as under :-
"Before adverting to the rival contentions, be it noted that the entire matter hinges on circumstantial evidence. There is also however existing on record, a dying declaration, but its effect on the matter, shall be discussed shortly hereafter in this judgment. Incidentally success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While however, it is true that there should be no missing links, in the chain of events so as far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of strong suspicion without however any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accused must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting however, noting the observations of this Court in the case of State of U.P. Vs. Ashok Kumar Srivastava (AIR 1992 SC 840) wherein this Court in paragraph 9 of the report observed:-
Thus Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far- fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."(Downloaded on 01/09/2019 at 08:26:07 PM)
(27 of 71) [CRLDR-1/2016] Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in State of Gujarat Vs. Mohammed Atik & Ors. (1998) 4 SCC, 351, wherein it has been held as under :-
"When there is no statutory inhibition for using such confession on the premise that it was not recorded during the investigation of the particular offence which is under trial there is no need or reason for the Court to introduce a further fetter against the admissibility of the confessional statement. It often happens that a confessor would disclose very many acts and events including different facets of his involvement in the preparation attempt and commission of crimes including the acts of his coparticipators therein. But to expel every other incriminating disclosures than those under investigation of a particular crime from the ambit of admissibility is not mandated by any provision of law. "
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Karam Ilahi Vs. Emperor AIR (34) 1947 Lahore 92, wherein it has been held as under :-
"14. Sub-section (3) enjoins upon a Magistrate or Judge who does not record the accused's statement to make a memorandum thereof in the language of the court or in English. Sub-section (4) excepts examination of an accused person under S. 263 from the operation of this section. Neither S. 164 has nor S. 364 mentions the word "accused".
A careful perusal of S. 164 would go to show that it applies to all sorts of confessions, whether they are made by a person who is accused of an offence or not. Whether the appellant at the time he made the confessional statement was an accused person or not depends upon the stage of the investigation. Section 157, Criminal P.C., which deals with procedure to be adopted when a cognizable offence is suspected, lays down that:
"If from information received or otherwise, an officer incharge of a police station has reason to suspect that commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers...to proceed to the spot, to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender."
"17. It is important to note that the word used in Section 157 is "offender" and the word "accused" is used for the first time in the Chapter in Section 167. At the time Section 157 comes into operation, there is only a report and a suspicion that a cognizable offence has been committed while Section 167 comes into play after the police official entrusted with the investigation has taken necessary steps to arrest the person who is alleged or suspected to have (Downloaded on 01/09/2019 at 08:26:07 PM) (28 of 71) [CRLDR-1/2016] committed the offence. This makes me think that according to the provisions of the Criminal Procedure Code a person becomes an accused person immediately after he has been arrested by the police for an offence which forms the subject matter of the investigation by them. No definition of the word "accused" is given in the oaths Act. I have, however, satisfied myself that provisions analogous to those contained in Ss. 157 and 167 of the present Cr.P.C.exists in the Code of 1872, which was in force at that time the Indian Oaths Act was enacted in 1873 and my opinion is that the word in question was used in the Oaths Act in the same sense in which it was used in the Criminal Procedure Code, 1872. As regards, criminal proceeding, the counsel for the appellant argued that it meant a proceeding relating to a case pending in a criminal court. I am not prepared to place such a restricted interpretation upon the term and my own opinion is that it only denotes a proceeding before a criminal court as distinguished from a civil court. It cannot be denied that the proceedings before Mr. Bhanot were criminal. I, therefore, hold that the confession made by the appellant came within the ambit of Section 5, Oaths Act and the Magistrate acted illegally in recording it on solemn affirmation."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Abdulvahab Abdul Majid Shaikh & Ors. Vs. State of Gujarat (2007) 9 SCC 293, wherein it has been held as under:-
"It is true that the confession of the co-accused by itself is not sufficient to find a co-accused guilty unless there is other supporting evidence to prove that the accused was guilty. In State Vs. Nalini, this court held that the confession is a substantive piece of evidence, but as a 'Rule of Prudence' the Court should seek other corroborative evidence to test its veracity. Having regard to the above principle, we find that the evidence in this case indicates that there is sufficient corroboration of the confession given by A-9 Musakhan @ Babakhan. It is to be remembered that all procedural formalities were complied with in recording the confession of A-9 Musakhan @ Babakhan. The learned counsel for the appellant in Criminal Appeal No. 525/2004 vehemently contended that the confession given by A-9 Musakhan @ Babakhan was retracted the moment he was produced before the Magistrate and, therefore, it is to be treated as "not voluntary". The learned Counsel also pointed out that when PW-1 DCP, Shri Suroliya was recording the confession of A-9 Musakhan @ Babakhan, the Magistrate was very much available and the Police Officer should have produced the accused before the Magistrate in order to record the confession of the accused. It was argued that failure to produce the accused before the Magistrate indicated that the confession was not voluntary and the same was not given by the accused. We do not find much force in this contention. The Police Officer was empowered to record the confession and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted (Downloaded on 01/09/2019 at 08:26:07 PM) (29 of 71) [CRLDR-1/2016] subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence to the accused to make the confession. A-9 Musakhan @ Babakhan who was questioned under Section 313 Cr. PC had no case that he was subjected to any third degree treatment or threatened with dire consequences. He only stated that he had not given any statement before PW- 1 DCP, Shri Suroliya.
"These appeals before us are disposed of as follows.Criminal Appeal No. 525/2004
The main evidence in this case is the confessional statement of accused Musakhan @ Babakhan. Of course, the confessional statement is generally not treated as the primary evidence, but this Court in Nalini's case (supra) has held that the confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and it could be accepted provided there is corroboration by other material particulars. In the instant case, there is substantial corroboration of the confession of A-9 Musakhan @ Babakhan by other items of evidence. The counsel for the appellants strongly urged before us that the confession itself is highly suspicious and it cannot be relied upon to convict the appellants, but we find no force in that contention. The confession was recorded strictly in accordance with Section 15 of the TADA Act. The accused was apprised of the fact that in case any such confession is made, it would be used against him. The police officer who recorded the confession also stated that it was voluntary in nature. The counsel for the appellants contended that the Chief Judicial Magistrate was readily available to record the confession and when such a facility was available, the police officer should not have recorded the confession. It was also pointed out that when A-9 Musakhan @ Babakhan was produced before the C.J.M., he retracted the confession and that itself is sufficient to hold that the confession was not voluntary in nature. Under Section 15 of the TADA Act, a police officer is permitted to record the confessional statement of the accused and certain strict procedure is prescribed. The appellants have no case that this procedure has in any way been violated. Merely because the confession was retracted, it may not be presumed that the same was not voluntary. It is important to note that when A-9 Musakhan @ Babakhan was produced before the Magistrate, he had no case that he was subjected to any third degree method. He only stated that he had not made any confession before the police. "
"On consideration of confessional statement, which is amply corroborated by other items of evidence, we have no hesitation in accepting the same as truthful and voluntary. The complicity of A-1 to A-4 in the abduction is proved beyond reasonable doubt."(Downloaded on 01/09/2019 at 08:26:07 PM)
(30 of 71) [CRLDR-1/2016] Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Subramania Goundan Vs. State of Madras (1958)SCR 428, wherein it has been held as under :-
"The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being Kesava Pillai alias Koralan and another and Kesava Pillai alias Thillai Kannu Pillai (1) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being 'Balbir Singh Versus State of Punjab (2), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the
-complicity of the accused must be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the (1) I.L.R. 53 Mad. 16o. (2) A.I.R. 1957 S.C. 216. 441 general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Though under s. 133 of the Evidence Act a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to s.
114 lays down that a court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another. In such circumstances it is absolutely necessary that what he has deposed must be corroborated in material particulars. In contrasting this with the statement of a person making a confession who stands on a better footing, one need only find out when there is a retraction whether the earlier statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object that corroboration (Downloaded on 01/09/2019 at 08:26:07 PM) (31 of 71) [CRLDR-1/2016] is sought for. Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and. therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of a confession are untrue." Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors. (1996) 4 SCC 659, wherein it has been held as under :-
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Chamanlal & Ors. Vs. State of Punjab & Anr. (2009) 11 SCC 721, wherein it has been held as under:-
"16. :17 It would be appropriate to deal with the question of conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" given in Section 120-A reads as follows: "120-A. When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof." The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The (Downloaded on 01/09/2019 at 08:26:07 PM) (32 of 71) [CRLDR-1/2016] essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. State of Kerala, (2001) 7 SCC 596, wherein it has been held as under:-
"23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. In the face of modern organised crime, complex business arrangements in restraint of trade, and subversive political activity, conspiracy law has witnessed expansion in many forms. Conspiracy criminalizes an agreement to commit a crime. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity. To put it differently, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of (Downloaded on 01/09/2019 at 08:26:07 PM) (33 of 71) [CRLDR-1/2016] agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that together they would accomplish the unlawful object of the conspiracy."
24......
"25. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was performed as a part of a larger division of labor to which the accused had also contributed his efforts." "26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said: Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become adhoc agents for one another, and have made a partnership in crime. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. (Van Riper v. United States 13 F.2d 961, 967 (2d Cir.1926)."
"27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres." Learned counsel has next placed reliance on the judgment of this Court in Satish & Anr. Vs. State of Rajasthan, 2007(2) Cr. L.R. (Raj.) 1192, wherein this court has held as under :-
(Downloaded on 01/09/2019 at 08:26:07 PM)
(34 of 71) [CRLDR-1/2016] "11. In the present appeals, as already noticed, approver Om Prakash was arrested on 7.1.2001. While in custody, he submitted an application (Ex.P-43) to CJM Alwar on 19.1.2001 through SHO, expressing his intention to make a true disclosure of the facts regarding the incident. The application was taken up by CJM and it was explained to the approver that his statement could be used against him also. CJM Alwar vide order Ex.P-44 granted pardon to approver on 15.2.2001 under Section 306 Cr.P.C. and directed ACJM Alwar to record the statement of approver under Section 306 Cr.P.C. Pursuant to the direction of CJM, application Ex.P-43 for recording the statements of approver was moved by SHO, PS. Kotkasim before the ACJM Alwar, who directed Jailor of Sub-jail Kishangarh bas to produce approver Om Prakash in the Court on 20.2.2001. Approver Om Prakash was produced in the Court of ACJM on the said date and his statements under Section 306 Cr.P.C.(Ex.P-8) were recorded. Sh. Ram Babu Chaturvedi ACJM (PW 19) was examined by the prosecution to exhibit the relevant documents. At the top of the statement (Ex.P-8) Section 306(4) Cr.P.C. was clearly mentioned." Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in State of Tamil Nadu Vs. Nalini & Ors. 1999(3) CRL. L.J. 3124, wherein it has been held as under:-
"713. Mr. Natarajan pleaded for not confirming the death sentence of A-1 highlighting the mitigating circumstances. She is a woman and is mother of a small girl who was born during the period of her confinement in jail. She is very young. She has also subsequently regretted her act and her participation was the result of indoctrination by A-3. She did not play any major role. These are indisputably the mitigating circumstances and I am not unmindful of these facts. Indeed the dilemma whether sentence of death should be pronounced upon a woman has been troubling any mind for a considerable time. Surely in our culture a woman has to be treated with beneficence and kindness. But then in this case the person Dhanu who opted to become a human bomb was a woman. Subha who gave moral support to sacrifice her life on the anvil of some ideology and to end up by annihilating others lives, was also a woman. About the role of A-1 (Nalini), it is not a case where she was caught up in a sudden situation and became a mute comrade, the mind not towing the body. It was indeed the other way round."
It was further held in the aforesaid case as under :-
"From the facts pointed out above which strongly suggest her participation was not the result of helplessness but a well designed action with her free will to make her part of the contribution to the unholy plan and wicked conspiracy so I am not inclined to place any reliance on that confessional statement of her brother A-20 which is referred to by my learned brother Thomas,J."(Downloaded on 01/09/2019 at 08:26:07 PM)
(35 of 71) [CRLDR-1/2016] Learned counsel for the accused Dr. Abdul Hameed has submitted that the accused has been falsely involved in this case. There was no admissible evidence on record with regard to the involvement of accused Abdul Heed in the crime-in-question. Since the crime-in-question is a serious one, there is more responsibility on the prosecution to establish its case beyond the shadow of reasonable doubt.
Statements of the injured witnesses who had identified the accused Dr. Abdul Hameed in an identification parade or the witnesses who have identified the accused for the first time in the court are liable to be disbelieved. accused had already been shown to the witnesses who were to participate in the identification parade by the prosecution before conducting the parade. It was not believable that a person who had the intention to commit the crime-in-
question would have handed over the tickets to conductor P.W.46 and attract his attention towards himself for future identification. Hence, the witnesses who have identified the accused in the identification parade or during trial are tutored witnesses and have been introduced in this case by the prosecution falsely to strengthen its case. The injured witnesses who have participated in the identification parade had failed to identify the accused during trial. The witnesses who had identified the accused during trial had not been joined in the identification parade. Hence, no reliance could be placed on the witnesses examined by the (Downloaded on 01/09/2019 at 08:26:07 PM) (36 of 71) [CRLDR-1/2016] prosecution who have identified accused during identification parade. Accused had duly raised objection at the time of the identification parades conducted by the investigation agency that he had been shown to the witnesses before the parade. Confessional statement of Pappu recorded in another case could not be relied upon in this case and had been wrongly exhibited. P.W.95 Pappu stated that he has not made any confessional statement.
Learned counsel has further submitted that the accused Dr. Abdul Hameed is a qualified MBBS Doctor and was running a clinic. accused has three children and was doing charity work. accused is in custody for the last about 22 years. In case conviction of the accused is upheld then his death sentence was liable to be converted to imprisonment for life. In support of his arguments learned counsel for the accused has placed reliance on the judgment of Hon'ble Supreme Court in Govt. of NCT Delhi Vs. Jaspal (2003) 10 SCC 586, wherein it has been held as under :-
"The submissions on behalf of the parties on either side on either the relevance, efficacy and reliability of the confessional statements of the 1st accused or principles underlying Sections 10 and 30 of the Indian Evidence Act 1872, next falls for consideration. No doubt, in law the confession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But, it has often been reiterated that if on the basis of the consideration of other evidence on record the Court is inclined to accept the other evidence, but not prepared to act on such evidence alone, the confession of a co-accused can be pressed into service to fortify its belief to act on it also. Once there are sufficient materials to reasonably believe that there was concert and connection between persons charged with a common design, it is immaterial as to whether they were strangers to each other or ignorant of the actual role of each of them or (Downloaded on 01/09/2019 at 08:26:07 PM) (37 of 71) [CRLDR-1/2016] that they did not perform any one or more of such acts by joint efforts in unison. Section 30 of the Indian Evidence Act envisages that when more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect the maker and some other of such persons and stand sufficiently proved, the Court can take into consideration such confession as against such other person as well as against the person who made such confession. This is what exactly seems to have been done by the learned Trial Judge, particularly in the context of sufficient material available to also directly involve A-3 and A-4 in the common design of collecting materials relating to Army activities or defense secrets. The learned Judge in the High Court not only misconstrued the relevant principles of law but also is found to have gone amiss totally to the relevant and vital aspects of the materials and appears to have arrived at conclusions patently against weight of evidence, resulting in grave miscarriage of justice. The decision in Natwarlal Sakarlal Mody Vs. The State of Bombay [(1961) 65 Bom. L.R. 660 (SC)] was in the context of the need for joint trial claimed by the State of cases involving distinct acts/offences of criminal conspiracy against several accused and does not even otherwise in any manner lend support to the plea made on behalf of the respondent."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684, wherein it has been held as under :-
"202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and clauses (2)(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances". "Aggravating circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed. (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or (Downloaded on 01/09/2019 at 08:26:07 PM) (38 of 71) [CRLDR-1/2016] requiring his assistance under Section 37 and Section 129 of the said Code."
"206.Dr. Chitaley has suggested these mitigating factors:
"Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
"There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done (Downloaded on 01/09/2019 at 08:26:07 PM) (39 of 71) [CRLDR-1/2016] save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Haroom Haji Vs. State of Maharashtra AIR 1968 SC 832, wherein it has been held as under :-
"The case of the Judicial Committee dealt with accomplice evidence which was sought to be corroborated by retracted confessions. The case of this Court dealt with a retracted confession which was sought to be used without corroboration. Both cases treat the retracted confession as evidence which may be used although not within the definition of evidence. But both cases regard this evidence as very weak and only to be used with great caution. Although Govinda Menon, J. in Subramania Goundan's case 1958 SCR 428 (AIR 1958 SC 66) placed a confession on a slightly higher level than accomplice evidence, the observation is intended to convey the difference between the extent of corroboration needed for the one or the other before they can be acted upon. To read more meaning into the observations is not permissible for no such meaning was intended. The confession there considered was also intended to be used against the maker and not against a co- accused. A confession intended to be used against a co- accused stands on a lower level than accomplice evidence because the latter is at least tested 'by cross-examination whilst the former is not. The observations of Govinda Menon, J. must not be applied to those cases where the confession is to be used against a co-accused. As pointed out by this Court in Nathu v. State of Uttar Pradesh AIR 1956 SC 56, confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict.
In this connection the question of retraction must also be considered. A retracted confession must be looked upon with greater concern unless the, reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from some one in authority. A retracted confession is a weak link against the maker and more so against a co-accused."
Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Sarwan Singh Vs. State of (Downloaded on 01/09/2019 at 08:26:07 PM) (40 of 71) [CRLDR-1/2016] Punjab (S) AIR 1957 SC 637, Hon'ble Supreme Court has held as under:-
"On behalf of Harbans Singh, it has been urged. before us by Mr. Kohli that the judgment of the High Court of Punjab suffers from a serious infirmity in that, in dealing with the evidence of the approver, the learned Judges do not appear to have addressed themselves to the preliminary question as to whether the approver is a reliable witness or not. The problem posed by the evidence given by an. approver has been considered by the Privy Council and courts in India on several occasions.
It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story -or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.
Mr. Kohli's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves to this initial question, their appreciation of the approver's evidence suffers from a serious infirmity. In our opinion, this contention is wellfounded. We have carefully read the judgment delivered by the High Court but we find no (Downloaded on 01/09/2019 at 08:26:07 PM) (41 of 71) [CRLDR-1/2016] indication in the whole of the judgment that the learned Judges considered the character of the approver's evidence and reached the conclusion that it was the evidence given by a reliable witness.
The only statement which we find in the judgment dealing with this topic is that " since the main evidence in the case consists of the testimony of the approver it is necessary to consider the case of each accused individually. "With respect, this observation is open to the criticism which has been made against it by Mr. Kohli.
8. The argument that the character of the approver's evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case because, as we will presently point out, the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that the approver in the present case is a wholly unreliable witness.
Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdial Singh and have ultimately found that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh, that would not be enough to sustain his conviction.
It seems to us that if it was found that the approver's account against one of the accused persons was wholly discrepant, this finding itself should inevitably have led the court to scrutinise his evidence in respect of the other accused persons with greater caution. Besides, it is somewhat unfortunate that the attention of the learned Judges of the High Court was presumably not drawn to the still more serious discrepancies in the evidence of the approver in regard to the part assigned to Harbans Singh in the commission of the offence.
In the evidence' given by the approver before the trial court, he has definitely and unequivocally implicated Harbans Singh in the commission of the offence. It has been brought out in the cross-examination that in the very first statement made by the approver before the investigating officer on November 25 he had made statements about Harbans Singh which are wholly inconsistent with the subsequent story. In this statement, the approver had definitely stated that only the three of them were concerned with the commission of the offence, himself, Sarwan Singh and Gurdial Singh. He had also stated clearly in the said statement that Harbans Singh did not join in murdering Gurdev Singh.
It is remarkable that in regard to almost every material particular about the part played by Harbans Singh in the commission of the offence the story disclosed by the approver at the trial is inconsistent with his first statement before the police. In his statement at the trial, the approver (Downloaded on 01/09/2019 at 08:26:07 PM) (42 of 71) [CRLDR-1/2016] assigns Gurdial Singh the possession of lathi and according to him Gurdial Singh subsequently took up the kirpan from Sarwan Singh and murdered Gurdev Singh after which Harbans Singh himself gave a blow with it at the neck of the victim. In his statement before the police, the approver had said that Gurdial Singh had carried a kirpan.
We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his cross-examination. In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth.
It is true that in his second statement recorded on November 29, the approver substantially changed his first story and involved Harbans Singh in the commission of the offence, and in that sense, his second statement can be said to be consistent with his evidence at the trial. But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under s. 164 of the Code of Criminal Procedure on the same day.
Therefore it would be legitimate for the accused to contend that the additions made by the approver in his subsequent statement may be the result of promise held out to him that he would be granted pardon. Apart from this consideration, in view of the positive statements made by the approver in his first recorded statement, there can be no doubt that the subsequent allegations against Harbans Singh are improvements and are the result of his decision to involve Harbans Singh in the commission of the offence.
If this was a case where the statements made by the approver on subsequent occasions merely added details which were not included in the first statement, it may perhaps have been a different matter. It is true that omissions have not always the same significance as contradictions; but in the present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads to a very serious infirmity in the character of the witness.
It is indeed to be regretted that the attention of the learned Judges of the High Court was not drawn to this aspect of the matter and they were not invited to consider the initial question as to whether the approver, Banta Singh, was a reliable witness at all. Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts."(Downloaded on 01/09/2019 at 08:26:07 PM)
(43 of 71) [CRLDR-1/2016] Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Akhilesh Hajam Vs. State of Bihar 1995 Supp (3) SCC 357, wherein it has been held as under :-
"7. In the present case admittedly, there are no eye- witnesses to the incident and the conviction of the appellant solely rests on the circumstantial evidence. It may be stated that the standard of proof required to convict a person on circumstantial evidence is now well settled by a series of pronouncements of this Court. According to the standard enunciated by this Court the circumstances relied upon by the prosecution in support of the case must not only be fully established but the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt of an accused is to be inferred, should be of conclusive nature and consistent only with the hypothesis of the guilt of the accused and the same should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
"12. From the tenor of the evidence adduced by the prosecution it can well be seen that there has been a deliberate venture and an attempt of the witnesses to favour the appellant and it becomes clear that the witnesses did not come out with the truth and tried to suppress the material facts to deflect the course of justice for reason best known to them. On going through the prosecution evidence though it appears to us that in all probability the appellant may be the culprit but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression "may be" and "must be".
Howsoever strong the emotional considerations may be, but the same cannot take the place of proof. It is indeed unfortunate that four innocent persons lost their lives and the culprit whosoever he may be goes unpunished. But it would be still worse if a innocent person is held responsible for the same merely on the basis of strong and serious doubts and, therefore, the conviction of the appellant deserves to be set aside by giving him the benefit of doubt." Learned counsel has next placed reliance on the judgment of Hon'ble Supreme Court in Vivian Rodrick Vs. State of West Bengal 1971(1) SCC 468, wherein it has been held as under :-
(Downloaded on 01/09/2019 at 08:26:07 PM)
(44 of 71) [CRLDR-1/2016] "It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under s. 302. Section 302, I.P.C., prescribes two alternate sentences, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this particular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been' for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In our opinion it would be inhuman to make him suffer till the Government decides the matter on a mercy petition. We consider that this is now a fit case for awarding the sentence of imprisonment for life. Accordingly we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life. The sentences under s. 148, I.P.C., and S. 5 of the Explosive Substances Act and under s. 302, I.P.C., shall run concurrently."
Learned counsel has next placed reliance on the judgment of this Court in Gopal Vs. State of Rajasthan 1997(2) Crl. L.J. 2162, wherein this court has held as under :-
"The liability for punishment imposed by a valid law in force cannot be avoided by persons who commit the crime on the ground that some other persons accused of similar crime were acquitted in some other case, in Section 43 of the Indian Evidence Act judgments delivered by Courts have been declared to be irrelevant excepting those which are relevant under:
Section 43.
'Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant:- Judgments, order or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.'"
Learned counsel for other accused has submitted that so far as the other accused are concerned prosecution has based reliance on evidence recorded in S.M.S. Stadium Jaipur bomb blast case. There was no direct evidence with regard to involvement of accused Rayees Beg in the present case. Accused Chandra Prakash, from whom recovery of explosive substance had been made, was discharged in this case. (Downloaded on 01/09/2019 at 08:26:07 PM)
(45 of 71) [CRLDR-1/2016] Case of accused Rayees Beg would be on similar footing as he would also hit by the principle of double jeopardy on the ground of his conviction in S.M.S. Stadium Jaipur bomb blast case.
So far as Aapellant Javed is concerned he was involved in Ahmedabad blast case in FIR No. 12/96 and was acquitted by the trial court vide order dated 8.9.2008. accused Javed was arrested in Jaipur Stadium bomb blast case and was released under Section 169 Cr.P.C. Ex. 153 statement of accused Javed was recorded in Jaipur Stadium bomb blast case and no reliance could be placed on the same in the present case, epecially, because the accused had been released under Section 169 Cr.P.C. in Jaipur Stadium bomb blast case. accused was arrested in this case and the only evidence available against him is that he had supplied material at Delhi and accused was convicted in Lajpat Nagar, Delhi bomb blast case. However, Special Leave Petition against his conviction and sentence is pending before Hon'ble Supreme Court. accused had travelled from Kathmandu to India and at the check post no incriminating material was found in possession of the accused. P.W.82 Sarju Prasad had deposed that accused had stayed in his hotel, but he had failed to bring the register in this regard and no test identification parade was got conducted from him. No identification proof of accused was available on record. (Downloaded on 01/09/2019 at 08:26:07 PM)
(46 of 71) [CRLDR-1/2016] So far as the accused Latif Ahmed, Mohammed Ali Bhatt, Miraj Nisar Hussain and Abdul Goni are concerned, they have been involved in this case on the basis of the statement of Javed recorded in Jaipur Stadium bomb blast case. accused Latif Ahmed and Abdul Gone were acquitted in Ahmedabad bomb blast case. All the said appellants were acquitted in Delhi bomb blast case.
Learned counsel on behalf of accused Farukh, who has been acquitted by the trial court, has submitted that the said accused has been rightly acquitted by the trial court as there was no evidence on record against him involving him in the crime.
Present case relates to a bomb blast which had occurred in a Rajasthan Roadways bus near Samleti village, which had started from Agra for Jaipur.
In the bomb blast 14 persons had died and 39 persons had suffered injuries. In fact, a bomb blast had occurred at S.M.S. Stadium, Gandhi Nagar, Jaipur on 26.1.1996. When the said bomb blast occurred, the Republic Day celebrations had not yet begun. There was no casualty in the said bomb blast. Thereafter another bomb blast had taken place at Lajpat Nagar, Delhi on 21.5.1996. Investigation started with regard to bomb blast at S.M.S. Stadium in FIR No. 39/96. In the said case, accused Pappu sought permission and turned approver. His confessional statement Ex.P174 (Downloaded on 01/09/2019 at 08:26:07 PM) (47 of 71) [CRLDR-1/2016] was recorded. In the Jaipur Stadium bomb blast case, Abdum Matin, Chandra Prakash, Abdul Hameed and Rayees Beg, faced trial. All the said accused were convicted and sentenced under Section 307, 435, 118 read with Section 120-B IPC and Section 3/6, 4/6 and 5/6 of the Act, vide judgment/order dated 22.4.2000. Appeals filed by the convicts were dismissed by this court vide order dated 3.2.2009. In the said case statement made by approver Pappu was relied upon to order conviction of his co- accused. The said statement of accused Pappu Khan was recorded under Section 164 Cr.P.C. on 9.9.1997. Statement of accused Pappu has been exhibited in the present case as Ex.P174. Pappu, while appearing in the witness box as P.W.95, denied that he had made any such statement. The said statement (translated version) reads as under:-
"I used to drive Jeep in villare-Farah. I am driving, Taxi since 8-9 years. Three years earlier from today, a Maulana namely-Salar, came to village-Farah. Salar used to come to read Namaj in the Mosque in the village Farah. We used to read Namaj. One day Maulana of our village- Mosque went on leave for three days, then Salar taught Namaj to us. When it was asked by Namaji from Salar that, where did he live, Salar had told us that, he lives in Moti Katra Agra. Thereafter, I learnt reading Namaj from Salar, because I was not aware how to read Namaj. Salar had asked me, how many mosques are here, and then I had told him that, there are four mosques. At this, he asked that, whether there is no Madarsa here, and I had told him that, here is one Madarsa. Salar went to see Madarsa with me.(Downloaded on 01/09/2019 at 08:26:07 PM)
(48 of 71) [CRLDR-1/2016] Salar asked from me about the system of Madarsa and about the children reading in the Madarsa. I told Salar that, 50-60 children read in this Madarsa, and on Friday flour is collected from their homes and sold and book of Quran is bought for teaching them. Salar asked from me, whether I have got printed the receipts for collecting donation in name of Madarsa. I told him that, yes I have got printed receipts for the same. At this Salar asked to give him one booklet of receipts, so that, he might send me donation after collecting it. After two months of first meeting, Salar handed me Rs. 1300/- [thirteen hundred] as donation. I have also collected Rs. 800. Thus, with the help of this amount, in the Madarsa we got fixed a hand pump-set. Meantime I came into close contact with Salar. Once Salar came from Agra by Scooter in my village- Farah and asked me that, we are going to Fatehpur Sikri for visiting. Are you willing to come with us? I also went with Salar to visit Fatehpur Sikri. When we came out from the Dargah at Fatehpur Sikri, Salar told me that, he is to meet his one friend in village-Roopvas, and we went to village-Roopvas, which is in Rajasthan near Fatehpur Sikri.
On reaching village-Fatehpur Sikri, Salar made me stand outside house and he himself entered the house of a Hindu and after talking for 15 minutes, he came back. When Salar came back, in hand of one person, who was Hindu, there was a small box. He handed over to me that small box, when I was on the pillion seat of the Scooter and we proceeded. After coming out of Roopvas, I asked Salar that, what is in this small box? At this, Salar told me that, there are spices for preparation of food grains of goats.
Retaining that small box, we came directly to village- Farah, where Salar asked me to get down from the Scooter, and after putting that small box in front portion of scooter, took it away to Agra. Thereafter, also Salar visited my village on the intervals of two months, when I was working as a driver on Jeep of Advocate Uma Shanker Agrawal. Salar asked me that, he is in need of this vehicle, for visiting Roopvas. At this I told him that (Downloaded on 01/09/2019 at 08:26:07 PM) (49 of 71) [CRLDR-1/2016] you may hire this vehicle from vehicle owner at the rent of at least four hundred and fifty rupees. Salar hired the vehicle at the rent of Rs. 400 and went to Roopvas in it with me.
In Roopvas Salar again went to the house of same Hindu and after half an hour he came back with a small box in his hand and one box was in the hand of Hindu and kept it in the said Jeep. He made me get down near village-Farah on Delhi-Agra Road. I do not know that how he had taken away these small boxes. In Roopvas Salar had told that Hindu that my brother will come or the driver and you hand over spices to them. After 20-22 days Salar, once again visited my village and he met me in the market. Then again Salar told me that his brother is coming from Delhi, I have given him address of Madarsa. Salar gave me his address of Agra by writing on piece of paper and old me that if he does not meet him at that address then I may ask about him from Islam opposite the Mosque. After three-four days of giving of his address by Salar, three persons visited Madarsa and they asked by name. At this I told him my name. Those persons told me that, Salar must have told you about us. I told them that, Yes! He had told me about you. When I asked their name and addresses, one of them told me his name as Rayees Ahmad resident of Delhi and said that he is owner of a factory of grains for goats and he also told that I used to inspect Madarsa also. Other person told his name Zilani and he also told that he teaches in Aligarh Muslim University. Third person told that he is in service in Police Department.
I went to Agra to give information to Salar about visit of those persons in village-Farah. There Salar did not meet in the Mosque of Moti Katra. So I told Islam about visit of those persons in my village and then I returned to my village-Farah. After my return from Agra, Salar came to my village-Farah on a scooter with a fat man. That time I had left the service of Jeep Driver and I had purchased a car for Rs. 18,000/- from my former owner i.e. from Vakil Saheb. Salar asked me to visit to Mr. Hazi Rayees Ahmad by car to Fatehpur Sikri and also to (Downloaded on 01/09/2019 at 08:26:07 PM) (50 of 71) [CRLDR-1/2016] Roopvas. I after settling the fare of Rs. 400/- took to Mr. Rayees Ahmad to Fatehpur Sikri and also to Roopvas to the house of that Hindu. Rayees Ahmad talked to that Hindu and he gave one bundle of Rs. 10,000/- to that Hindu, namely-Chandra Prakash. In return Chandra Prakash gave him five small boxes of spices and we returned to village-Farah. After delivering those boxes and after receiving fare, I returned home. In the morning, when I came to Madarsa, I did not find those boxes in Madarsa. At this Rayees Ahmad told me that Salar has taken them to Agra. Next day Rayees Ahmed enquired fare for going to Ferozabad. The fare was settled at Rs. 400/-. At this he got ready and I took him to Ferozabad, where he got down at a doctor's clinic. After half an hour he called me to the shop and told me to lock the vehicle. He took me with himself. Thereafter we sat in a house, where doctor called a man namely Pappu. Two more persons were sitting there. I do not know their names.
Doctor asked to Rayees Ahmad that your Miya Saheb Salar has committed very dirty work. At this Rayees Ahmad said, we will punish him. You do your work. We returned back from there after taking tea. We returned to village-Farah. I left him at Madarasa. Next day, again said, same day Rayees Ahmad had sent Zilani, Salar and Police Man to Delhi. Next day Rayees Ahmad asked me - How is your Madarsa running? At this I told him that with the contribution of flour it is running. At this Rayees Ahmad asked me to give him booklet of donation receipt, he will send donation from Delhi. Rayees Ahmad took away two booklets of donation receipts. Next day, Rayees Ahmad settled fare of Rs. 400/- and took me to Ferozabad. In Ferozabad near a mosque, in shop of Almirah Rayees Ahmed had talked. My vehicle was standing outside shop. I was sitting in my vehicle. I had heard talk of only Rs. 4000/-. Later on we returned to Agra. Rayees Ahmad gave me Rs. 400/- as my vehicle's fare and he got down from my vehicle in Agra itself. I returned to village-Farah in my vehicle. After two months, the doctor of Ferozabad with a man, came to my village-Farah at the hotel of my brother and he (Downloaded on 01/09/2019 at 08:26:07 PM) (51 of 71) [CRLDR-1/2016] told me that Rayees Ahmad has called me to Delhi. I told him that I have no money for fare. At this doctor told me that man with you will pay the fare and go with him.
After telling at home, I went Delhi with that man. We reached Delhi at night at 11 'o' clock. That man managed the meals and they slept in a hotel near Guma Masjid. Thereafter, he went away, after leaving me in that hotel. That man came in hotel in the morning at 8 'o'clock and he told me that, after waiting for me, Rayees Ahmad had gone to Kashmir. That man took me to Kashmir. At night we reached Anantnag. We met Rayees Ahmed in a room. Rayees Ahmad asked me about the well-being of the Madarsa. Rayees Ahmad gave me ten thousand rupees and told me that a man namely Abdulla will meet me in Madarsa at Farah. Give him these rupees. When I demanded rupees for donation, he told me that I am collecting the same and we will send such amount which will be sufficient for construction of two rooms. In the morning at 5 'o' clock he sent me to Jammu. Then I returned to village-Farah via Delhi.
After three-four days of my return, in the morning Salar and Abdulla came to village-Farah and Salar told me that whether ten thousand rupees had been given to you? At this I told him. Yes. Then he asked me to bring that rupees. When I came with Rupees Ten thousand, Salar had gone for toilet. I asked Abdulla where do you live. He told me that he studies in Aligarh University. I asked from him, where is the Factory of Salar and what he does with these spices. At this Abdula laughed and it slipped from his mouth that it is explosive. Meantime Salar returned from toilet. When Salar came to the village with Abdulla, he did not have beard, while earlier Salar used to keep beard. I gave ten thousand rupees to Salar. Salar given eight thousand rupees to Abdulla and he asked me to go with Abdulla and bring four packets of spices. I denied telling Salar that these are not spices rather these are explosive. At this Salar got annoyed with me and asked that who has told you about this. I told him that Abdulla had told me. At this Salar pointed revolver (Downloaded on 01/09/2019 at 08:26:07 PM) (52 of 71) [CRLDR-1/2016] at Abdulla. Both started fighting. Abdulla was also having a Revolver. I came out from the Madarsa.
Salar again called me inside the Madarsa. He told me as now you are aware about this and if you will tell anyone about this, we will kill all members of your family and he pointed revolver at my head. Salar asked me, whether I will go or not to bring spices. I said yes. I went to Roopvas with Abdulla to the house of Chandra Prakash, where Abdulla gave Rs. 8000/- to Chandra Prakash. Chadra Prakash gave four boxes of the spices. We, after keeping those boxes in the Fiat Car, returned to village- Farah. He did not give fare of my vehicle. Salar came with drum of Iron and filled up the drum with boxes of spices. Salar and Abdulla after keeping those drums in my car took it away to Lakshmi Transport Company near Moti Katra, Agra. After giving me Rs. 250/- they sent me to my village-Farah. On account of their fear, leaving village-Farah I went to Mathura. After about two months by searching my address Salar reached Mathura and he took me to village-Farah from Mathura. In the Madarsa of village-Farah one man with beard namely Abdul Samad and doctor of Ferozabad met me. When we reached Madarsa, both were counting rupees.
Abdul Samad gave ten thousand rupees and wrote address to doctor in the morning at 8 'o'clock for purchasing watch of plastic. Same day at ten 'o'clock Ekbal and Gilani also came in village-Farah. Salar asked me to go Roopvas with Gilani to bring spices. When I denied, he threatened to kill all member of my family. Under fear I went to Roopvas with Gilani for bringing spices with Gilani. Gilani was having Pistol also. Gilani bought five boxes from Chandra Prakash. My vehicle went out of order at Achnera. On account of this after getting my car repaired we returned to Madarsa at 8-9 'o'clock at night. There Pappu of Ferozabad was also present at the Madarsa. Yusuf of Meerut was also sitting there. The doctor was also sitting there. The box from my car was brought to Madarsa. There was one more person, who was speaking like - Bengali. They were talking that, which (Downloaded on 01/09/2019 at 08:26:07 PM) (53 of 71) [CRLDR-1/2016] place shall be proper. Same time the doctor brought out from his bag watch of plastic and a bundle of wire and handed over to Abdul Samad. During the course of there talk Salar told that, Bhopal shall be proper. At this Gilani said, I have visited Jaipur. It shall be proper. Same time Abdul Samad sent Ekbal and Dr. Hameed to look out the proper location. At that time, at that place there were Abdul Samad, Gilani, Ekbal, Yusuf, Pappu of Ferozabad, doctor of Ferozabad, Salar and one person like Bengali. I was also standing there. These persons asked me to go away. Same time, these persons asked Dr. Hameed and Ekbal to reach Ferozabad to the room of Abdulla day after tomorrow. They asked Yusuf also to reach Ferozabad. Yusuf took away three boxes to Agra out of those spices.
After about three days, these persons called me from my home in the Madarsa, at Farah, and they asked me to come with vehicle. At this I reached Madarsa with my vehicle. There at the Madarsa one person namely Pappu Ferozabadi @ Abu Vakar came to Madarsa with three Plastic tins and two blankets. Thereafter Salar, Abdul Samad and Gilani kept the tin in my vehicle came to Ferozabad in a room above the shop of Dr. Hameed. In the room of Abdulla two tins were brought from the Market by Pappu. Later, I returned to my village-Farah in my vehicle. After about 7-8 days Ekbal came to Madarsa, because the diary of Ekbal was left there. Ekbal went away telling me that they had got success in Jaipur. After 4 month, Salar came and he was taking tea at the hotel of my brother and he was also reading Newspaper. Then he called me to read over the news to him. He told me that in a roadways bus there was a bomb blast. I asked, from where the bus had come, then he told me that, whether I had told or not to anyone about this. Salar told me that, he had come with timer of bomb from Kashmiri Hawaldar. Salar said that, in the bus in a kettle of water Abdulla and doctor had set the bomb.
I asked, that, how they had escaped? Salar told that they had got down at Mahwa. Thereafter out of them no one was seen (Downloaded on 01/09/2019 at 08:26:07 PM) (54 of 71) [CRLDR-1/2016] by me. After five to six months thereafter, Ekbal and Salim came to my village-Farah and they told me that, Salar has also came. Salar asked me to go with Pappu to bring boxes. Under fear, I went with them and came with six boxes of spices and after keeping those boxes in the iron drum, took it from Agra for Amritsar Transport Company. Ekbal came with forged bill of purchasing colour from an electricity house opposite the bus- stand. I handed over Drums to Amritsar Transport Company. Thereafter I returned to Farah. I was coming to Jaipur for to tell about this entire occurrence I was arrested at Jaipur Bus Stand. I got arrested Chandra Prakash. I am a poor man. Yusuf, Ekbal and Pappu had come to Jaipur to fix bomb."
Statement of Pappu @ Salim was also recorded in the present bomb blast case under Section 164 Cr.P.C. and the same has been proved on record as Ex.P189. The same was exhibited on record by P.W.99. However, Pappu @ Salim had withdrawn from the said statement.
Prosecution has strongly relied upon the confessional statement of Pappu @ Salim, i.e., Ex.174. In such type of cases, group of persons conspire together to commit the offence with a view to cause loss of life and property and as a result they inculcate fear in the minds of general public All the persons of the group involved in doing an illegal act by illegal means join hands to achieve their object of spreading terror. The said persons do so by endangering lives of the members of the society and also cause damage to property. It is very difficult to unearth (Downloaded on 01/09/2019 at 08:26:07 PM) (55 of 71) [CRLDR-1/2016] such a crime. Evidence of an approver comes in handy to solve such crimes. An approver is granted pardon under section 306 Cr.P.C. Since, in cases like bomb blasts, it would be otherwise impossible to trace the accused because the entire conspiracy is carried out in hiding, the offence can be brought home with the aid of evidence of an approver. The statement of an approver secures evidence in relation to circumstances which are within the knowledge of the approver relating to the offence and every other concerned person.
A confession is substantive evidence against its maker, if it has been duly recorded and suffers from no legal infirmity. It would suffice to convict the accused who made the confession, though as a matter of prudence, the Court usually expects at least some corroboration before acting upon it. But before acting upon a confession, the Court must be satisfied that it is voluntary and true. voluntariness depends upon whether there was any threat, inducement or promise to the maker of confession. The truth is to be judged in the context of the entire prosecution case i.e. whether it fits into the proved facts and does not run counter to them. If these two conditions are satisfied, it becomes the most reliable piece of evidence against the maker.
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(56 of 71) [CRLDR-1/2016] When a confession has been retracted, the court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The first test that the court is required to apply with regard the same is to ascertain whether the confession was 'voluntary' or not. Satisfaction of this test is a sine qua non for admissibility of the confession in evidence. The word 'voluntary' used in respect of a confession refers to a confession that is not caused by inducement, threat or promise. If it appears to the court that a confession has been procured using any inducement, then it would be rendered irrelevant.
A retracted confession is a statement made by an accused person before the trial begins, by which he admits to have committed the offence, but which he repudiates at the trial. A confession is said to be retracted only where the accused admits that he made the confession and then denies the truth to what is stated therein. A retracted confession, if believed to be true, may form the basis of conviction but as a rule of caution it is unsafe to base a conviction even of the maker on a retracted confession alone without some independent corroboration. The corroboration must be in material particulars so as to satisfy the court that the confession, even though retracted, may be acted upon. Retracted confession of an accused implicating a co-accused cannot be relied upon (Downloaded on 01/09/2019 at 08:26:07 PM) (57 of 71) [CRLDR-1/2016] without corroboration in material particulars by independent evidence.
It is a settled proposition of law and as per the judgments relied upon by the learned State Counsel with regard to retracted confession that the same can be relied upon but in doing so some other corroboration must be ensured.
Pappu @ Salim had turned approver in SMS Stadium bomb blast case and his statement Ex.P174 was recorded which has been reproduced above. Although, Pappu @ Salim has retracted from his statement in the present case but he has admitted that his statement Ex.P.174 was duly signed by him. A perusal of Ex.P.174 reveals that Pappu @ Salim has given the details of the persons who were dealing in explosive substance and were transporting the same for commission of illegal acts. Pappu @ Salim has also stated in his confessional statement with regard to involvement of accused Abdul Hameed in preparation of bombs and the fact that he was also dealing in explosive substances. Pappu @ Salim has stated that he had seen accused Abdul Hameed with bag of plastic watches and bundle of wires etc. Pappu @ Salim has also stated in his confessional statement that he came to know from Salar that accused Abdul Hameed alongwith Asadulla had planted (Downloaded on 01/09/2019 at 08:26:07 PM) (58 of 71) [CRLDR-1/2016] bomb in the Roadways bus and as a result thereof there had a been a bomb blast in the Roadways bus. Pappu @ Salim supported his confessional statement Ex.P174 in Stadium bomb blast case and his co-accused earned conviction. Thus, by turning an approver Pappu @ Salim saved himself from conviction. On account of his confessional statement, apparently he was arrested in the present case. In this case also he suffered a statement under Section 164 Cr.P.C. (Ex.P189) and the said statement is similar to his statement Ex.P174. Pappu @ Salim was cross-examined by accused Dr. Abdul Hameed before the Magistrate. Pappu @ Salim had withdrawn from his statement Ex.P189.
Pappu @ Salim (P.W.95) in his cross-examination deposed that the Magistrate made him understand that he was free to make the statement and without any pressure. He had signed the statement but it was not read over to him. Before and after recording of his statement, he had remained in jail alongwith other accused. He denied the suggestion that during his stay in jail with the other accused, he had been pressurised by the other accused to retract from his statement recorded before the Magistrate under Section 164 Cr.P.C.
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(59 of 71) [CRLDR-1/2016] P.W.97 Chief Judicial Magistrate, who had recorded the statement of Pappu @ Salim Ex.P174 deposed that he had apprised Pappu Khan that it was not necessary for him to make the confession and in case he did so, it could be used against him. He had recorded the statement as narrated by Pappu @ Salim. He had recorded the confession of Pappu without any addition or omission. He had written the statement in his own hand and it was read over to the person who had made the confession. The person, who had made the confession, had admitted his statement to be correct. The statement was signed by the person, who had made the confession, on each page. He believed that the statement was being made by Pappu Khan of his own free will.
P.W.99, Additional Chief Judicial Magistrate deposed that he had recorded the statement of Pappu @ Salim, i.e., Ex.P189 after making him understand that he was not bound to make the confessional statement and in case he made the statement it could be used against him. Thereafter Pappu Khan had made his statement of his own free will. Statement was recorded without any addition or omission. The statement was read over to Pappu after it was recorded and after understanding the same it had been signed by Pappu.
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(60 of 71) [CRLDR-1/2016] Thus, the confessional statement had been made by Pappu Khan twice before the Magistrate. From the statement of Chief Judicial Magistrate P.W.97, it is evident that Pappu Khan had been duly explained before recording his confessional statement that he was not bound to make the statement and it could be used against him. The Chief Judicial Magistrate had ensured that the statement made by Pappu Khan was voluntary. Confessional statement was duly read over to Pappu Khan by the Chief Judicial Magistrate and thereafter he had signed each page of his statement. Thus, it can be said that the confessional statement Ex.P174 had been made by Pappu Khan voluntarily. In the present case also Pappu Khan had made a statement under Section 164 Cr.P.C., which was similar to his statement Ex.P174. It appears that in the Stadium bomb blast case Pappu @ Salim admitted correctness of Ex.P174 but thereafter, as he remained in jail with the other accused and, therefore, he retracted from his confessional statement under their pressure. So far as Stadium bomb blast case is concerned, same was disposed of on 22.4.2000, whereas, in the present case Pappu Khan appeared in the witness box as P.W.95 on 25.7.2014 Hence, the confessional statement made by Pappu Khan @ Salim is relevant piece of evidence for deciding the present case as it had been voluntarily made by him without any pressure.
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(61 of 71) [CRLDR-1/2016] Let us first examine the case of accused Abdul Hameed to come to a conclusion as to whether his involvement in the crime has been established by the prosecution apart from the retracted confession of Pappu @ Salim.
Complainant, while appearing in the witness box as P.W.46, has duly identified accused Abdul Hameed as the person who had got down from the bus at Mahwa and the bomb blast had taken place after the bus had covered a distance of 2-3 kilometers from Mahwa. P.W.46 was the Conductor of the bus in question. The bus had started from Agra for Bikaner. Presence of the Conductor in the bus cannot be doubted. In the incident Conductor of the bus had also suffered injuries and his medical examination report had been proved as Ex.P43. The said witness has duly identified the accused during trial as well as in an identification parade conducted during investigation. Identification of accused Abdul Hameed could not be shattered in his cross-examination. The Conductor of the bus had no reason to falsely involve the accused in this case as he had no enmity or ill-will against him. Since the Conductor had also suffered injuries in the bomb blast and the accused Abdul Hameed had got down from the bus immediately before the bomb blast after handing him the (Downloaded on 01/09/2019 at 08:26:07 PM) (62 of 71) [CRLDR-1/2016] ticket, it was natural for the Conductor of the bus to have remembered the face of accused Abdul Hameed.
Accused Abdul Hameed had also been duly identified by some of the injured witnesses in an identification parade during trial. However, the said witnesses could not identify accused Abdul Hameed during trial on account of lapse of time.
P.W.6 Bal Krishan has corroborated testimony of P.W. 36 to the effect that the ticket given by accused Abdul Hameed to the Conductor had been handed over to him, when he had boarded the bus at Mahwa for Jaipur.
P.W. 24 Janki Prasad injured deposed that he had identified accused Abdul Hameed in an identification parade. The said person had suffered injuries in the incident and his injury report has been proved on record as Ex.P117.
P.W.28 Jagan Ram identified the accused during trial as one of the person who had got down from the bus at Mahwa and he identified accused Abdul Hameed during trial. The said witness in his cross-examination explained that he was not called to participate in the identification parade. He is a police official and was travelling in the bus (Downloaded on 01/09/2019 at 08:26:07 PM) (63 of 71) [CRLDR-1/2016] in connection with an arrest of an accused in a murder case.
It is not a case where the prosecution case against accused Abdul Hameed rests merely on the confession made by accused Pappu @ Salim. Accused Pappu @ Salim was arrested in the present case also and he suffered statement under Section 164 Cr.P.C. Although, the said statement was later retracted by the accused Pappu. In view of the confessional statement Ex.P174 of accused Pappu, he was examined as a prosecution witness in the present case.
Section 30 of the Indian Evidence Act, 1872 reads as under:-
"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 1[Explanation.--"Offence", as used in this section, includes the abetment of, or attempt to commit the offence.]"
Section 164 Cr.P.C., 1973 reads as under :-
"164. Recording of confessions and statements.
(1)Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any (Downloaded on 01/09/2019 at 08:26:07 PM) (64 of 71) [CRLDR-1/2016] power of a Magistrate has been conferred under any law for the time being in force.
(2)The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3)If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4)Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession;
and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried."
Statement of Pappu @ Salim was recorded under Section 164 Cr.P.C. in the Jaipur Stadium bomb blast and he was granted pardon under Section 306 Cr.P.C. and was made an approver. In the said statement Pappu @ Salim had stated that he had been told by Salar that accused Abdul Hameed and Asadulla had planted bomb in the Roadways Bus which had exploded near village Samleti. Due to this reason, Pappu @ Salim was arrayed as a (Downloaded on 01/09/2019 at 08:26:07 PM) (65 of 71) [CRLDR-1/2016] prosecution witness in the present case. Hence, benefit sought to be drawn by the learned counsel for the accused Abdul Hameed under Section 30 of the Indian Evidence Act would not be applicable to the facts of the present case. Statement of Pappu @ Salim was recorded under Section 164 Cr.P.C. A Magistrate is empowered to record statement/confession of any person before the commencement of trial.
In the present case, the retracted confession of Pappu @ Salim is corroborated by the statements of complainant and other injured witnesses to the effect that the accused Abdul Hameed alongwith another person had planted bomb in the Roadways Bus in question, and a blast took place near village Samleti.
There is no force in the argument raised by the learned counsel for the accused Abdul Hameed that there was no occasion for the said accused to have handed over the ticket to the Conductor to invite attention towards himself. It is possible that accused Abdul Hameed was so confident that in the bomb explosion everybody travelling in the bus would die and thought that by getting down from the bus at Mahwa and giving ticket to the Conductor would not connect him to the incident. Accused must have been (Downloaded on 01/09/2019 at 08:26:07 PM) (66 of 71) [CRLDR-1/2016] confident that none of the bus travellers in the bus would survive for the purposes of his identification.
Thus, from the retracted confessional statement of Pappu @ Salim Ex.P174 and the statement of the complainant Ashok Kumar P.W.46, involvement of accused Abdul Hameed in the crime is duly established.
The next question that requires consideration is as to whether death sentence of accused Abdul Hameed is liable to be upheld or it can be converted to imprisonment for life.
Accused Abdul Hameed has played a major part in the bomb blast. Accused Abdul Hameed had left the bomb in the bus in question. On account of the bomb blast 14 innocent persons lost their lives and many others suffered injuries. Accused Abdul Hameed is a previous convict in Jaipur Stadium bomb blast case. The Jaipur Stadium bomb blast case had occurred on 26.1.1996, i.e., on the day when Republic Day celebrations were to take place. Instead of repenting or feeling remorse, accused Abdul Hameed planted bomb in a Roadways bus on 22.5.1996. Accused was a member of a group working collectively who were dealing with explosives with a view to cause bomb blasts at different places to create fear in the minds of general (Downloaded on 01/09/2019 at 08:26:07 PM) (67 of 71) [CRLDR-1/2016] public. Thus, the accused was indulging in commission of heinous crime against society as a whole. It is not a case inviting mercy. Accused and his group members wanted to spread terrorism by indulging in blasting bombs and taking lives of innocent persons. In the facts and circumstances of the present case and keeping in view the heinousness and gravity of the offence, learned trial court has rightly sentenced the accused Abdul Hameed with death penalty.
In the facts and circumstances of the present case, the judgments relied upon by the learned counsel for the accused Abdul Hameed fail to advance the case of the accused Abdul Hameed on merits of the case as well as with regard to sentence.
Now, let us examine the case of other accused as to whether the prosecution had been successful in establishing their participation in the crime. accused Javed had suffered statement under Section 164 Cr.P.C. on 17.7.1996 in S.M.S. Stadium, Jaipur bomb blast case. The said statement (translated version) Ex. P153 suffered by accused Javed reads as under :-
" I started Carpet business at Kathmandu. I was running business alongwith Javed Senior and Latif. We lived in New Market, Kathmandu. In April, 1996, I saw a bag and an attache' with some stuff in it before Eid in the room where we were staying. There was explosive substance in the bag. In the Attache', there was wireless set, detonator, remote control and time pencil. Boss of Javed Senior, i.e. Bilal Beg resides in Pakistan. I have not seen him. On 29.4.1996, on the day of Eid, Julfikar @ Ayub came to Kathmandu from Pakistan. He alongwith Latif went to receive him at the (Downloaded on 01/09/2019 at 08:26:07 PM) (68 of 71) [CRLDR-1/2016] Airport. Bilal had told Latif that he was wearing black coloured pant and yellow coloured shirt. They brought him from the Airport. He asked him if he was resident of Pakistan. He told him that he was not resident of Pakistan but was resident of Kashmir. He had gone to Pakistan for training. He enquired from him about the contents of Attache' and Bag. He told him that it contained time pencil, detonator and remote control. I had already identified the wireless set. On 6.5.1996, two more persons came to Kathmandu in their rooms from Pakistan. Latif had gone to receive them. The said two persons told Latif that nobody should enter their room and so he did not know their names. Javed Senior, Mehamood Keeley, Naja and Riyaj Maula went to Kathmandu on 8.5.1996. He alongwith Latif used to work with Javed Senior. On 8th May, Javed Senior told him to take bags of explosives and two detonators to Delhi. Then on 10 th May, Javed Senior sent Naja to Delhi. He was to do the setting of the blast in Delhi. Then Javed Senior, Mehamood Keeley and Javed of Sheopur returned from Delhi to Kathmandu on 11th May. On 12th May, he stayed back at the border whereas remaining persons left. He started from the Border on 13 th May and reached Delhi on 14th morning. He was asked to give the bag to Wajid Bucher, a frend of Naja by Javed Senior and Naja. When he reached the house of Wajid Bucher neither Wajid nor Naja were found there. Ladies and children were present there. He told them to handover the bag to Naja. I had told them that the bag contained clothes of Naja. I stayed at Delhi on 14 th and started for Kathmandu on 15th May. I reached Kathmandu on 17th. Javed Senior, Mehamood Keeley, Riyaj Maula had already reached Kathmandu before me. I enquired from them as to what had happened about their work at Delhi. They said that bomb had been prepared by mechanic Riyad Maula and he had given the same to Naja. On 19 th Mohammed and Riyad Maula returned to Delhi. He enquired from Javed Senior as to why they had gone back. He told him that some fault remained in it and the work had not been done. He came to know the names of two persons who had come from Pakistan on 6.5.1996 as Rashid and Abdulla. Julfikar had came on 29.4.1996. Asadulla who had come on 24.4.1996 had started with him alongwith Asadulla and Rashid on 20.5.1996 for Patna. From Patna, he alongwith Asadulla had gone to Bombay on 21st May. Then on 23rd May, Asadulla, who got his name as Nuruddin on the ticket, and Rashid, who got his name on ticket as Jalaluddin, reached Bombay. Then they said that they were going to Ahmedabad. They they started for Ahmedabad at 8.30 p.m., and reached Ahmedabad on 24.5.1996 after 12 noon. They stayed in a hotel. They took bath and had meals in the hotel below. Asadulla and Rashid left the hotel to recite Namaj. He stayed in the hotel with Julfikar. After 15 minutes C.B.I., alongwith Hotel Manager came and stated that search was to be conducted and they conducted search. They sat with them. Asadulla and Rashid reached hotel at 4/5 p.m. C.B.I. team took them along and interrogated them. He told them that he was to go only upto Patna. Rest he did not know anything else. He was only to handover a bag at Delhi. Information regarding place had been given by Javed Senior. He had only done the planning regarding the place. He did not know anything about any other place. He did not want to say anything else."
A perusal of the said statement reveals that, although, accused Javed had deposed with regard to his movement with the other accused regarding transportation of explosive substance but he has stated that he transported explosive substance to Delhi. Apparently, due to this reason (Downloaded on 01/09/2019 at 08:26:07 PM) (69 of 71) [CRLDR-1/2016] accused Javed was convicted in Lajpat Nagar, Delhi bomb blast case, although, SLP filed by accused Javed is stated to be pending. In SMS Stadium bomb blast case accused Javed was released under Section 169 Cr.P.C. Perusal of the confessional statement of Javed does not reveal that he had suffered any confession with regard to present bomb blast near village Samleti. Hence, accused Javed is liable to be acquitted of the charges framed against him as there is no material against accused Javed connecting him to the present crime in question.
So far as accused Latif Ahmed, Mohammad Ali Bhatt, Miraj Nisar Hussain and Abdul Goni are concerned, they have been involved in the case on the basis of confessional statement of accused Javed Ex.P153. In his statement Ex.P.153 accused Javed nas not referred to the involvement of the said accused in the present bomb blast case. Hence, accused Latif Ahmed, Mohammed Ali Bhatt, Mirja Nisar Hussain and Abdul Goni are also liable to be acquitted of the charges framed against them.
So far as accused Rayees Beg is concerned, he was convicted in SMS Stadium Jaipur bomb blast case and his conviction has been upheld by this court. Although, the said accused has been named by Pappu @ Salim in his confessional statement Ex.P174 but in the said statement (Downloaded on 01/09/2019 at 08:26:07 PM) (70 of 71) [CRLDR-1/2016] there is no reference of the involvement of accused Rayees Beg in the present case. There is also no other material on record to establish the involvement of accused Rayees Beg in the present case. Hence, accused Rayees Beg is also acquitted of the charges framed against him by giving him benefit of doubt.
Learned trial court has rightly ordered the acquittal of accused Farukh Ahmed Khan as there was no evidence on record connecting him with the present bomb blast in question.
Hence, the death sentence awarded to accused Dr. Abdul Hameed is confirmed and D.B. Criminal Death Reference No. 1/2016 is answered accordingly. D.B. Criminal Appeal Nos. 1024/2014, 113/2016, 188/2016, 341/2018 are dismissed. A copy of this judgment be supplied to the accused Dr. Abdul Hameed.
D.B. Criminal Appeal Nos. 1073/2014, 1092/2014, 1093/2014 and 1094/2014 are allowed. Accused Rayees Beg, Javed Khan @ Javed Junior, Latif Ahmed Baja, Mohammed Ali Bhatt @ Mehamood Keeley, Mirza Nisar Hussain @ Naja, Abdul Goni @ Asadulla @ Nasaruddin @ Nikka @ Umer @ Majeed Khan @ Raja are acquitted of the (Downloaded on 01/09/2019 at 08:26:07 PM) (71 of 71) [CRLDR-1/2016] charges framed against them. The said accused be set at liberty forth if not required in any other case.
In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, accused namely; Rayees Beg, Javed Khan @ Javed Junior, Mohammed Ali Bhatt @ Mehamood Keeley, Mirza Nisar Hussain @ Naja, Abdul Goni @ Asadulla @ Nasaruddin @ Nikka @ Umer @ Majeed Khan @ Raja are directed to furnish a personal bond in the sum of Rs.25,000/- each and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR),J (SABINA),J
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