Andhra HC (Pre-Telangana)
Syed Muqtar Ahmed @ Shafiq @ Abdullah S/O ... vs State Of A.P., Through Public ... on 24 April, 2007
Author: K.C. Bhanu
Bench: K.C. Bhanu
JUDGMENT K.C. Bhanu, J.
1. All these appeals are filed under Sections 374(2) Cr.P.C. challenging the conviction and sentence recorded in the judgment dated 28.06.2004 in Sessions Case No. 358 of 2000 on the file of the Additional Metropolitan Sessions Judge for trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, at Hyderabad. A.1, A.5, A.9 and A.10 filed Criminal Appeal No. 1589 of 2004; A.2, A.3, A.6 and A.7 filed Criminal Appeal No. 1821 of 2004; and A.8 preferred Criminal Appeal No. 1903 of 2004.
2. The prosecution case, in brief, may be stated as follows:
The accused, who are activists of Indian Muslim Mohammadi Mujahiddin (IMMM), entered into a criminal conspiracy with their associates to do away with the life of the deceased. On 06.04.2000 at about 8.30 PM, the deceased was discussing business matters with P.W.30 who came from Coimbatore, in his jewellery shop in Siddiamber Bazar. At that time, an unidentified person entered the shop, fired at the deceased and ran away. On that the deceased came out of the counter and fell down. P.W.I, who is son of the deceased, shifted to Osmania General Hospital in an auto-rickshaw where he was declared dead. At about 10.00 PM, P.W.1 gave Ex.P1-report in Afzalgunj police station to P.W.69-C.I. of Police. On that, he visited the scene of occurrence and found two empty cartridges. He also noticed a white colour carry bag in a corner of footpath near an electric pole and a tree to the south east of Mahalakshmi Jewellers shop. He also noticed a metallic G.I. pipe with wires connected to a plastic box. They were seized in the presence of P.W.63. He also prepared Ex.P69-observation report and Ex.P70-rough sketch. On 07.04.2000, he held inquest on the dead body of deceased and sent it for post-mortem examination. P.W.32-Assistant Professor, Forensic Medicine conducted autopsy. He found a firearm injury in front of right lower neck and opined that the death was due to firearm injury to the neck structures and left lung. Ex.P27 is the post-examination certificate.
The investigation was entrusted to CCS. Police. During investigation, the unidentified person who committed the crime was picked up as A.1. On 10.04.2000, P.W.74-CI. of Police took up investigation. He verified investigation done by P.W.69. According to him, there was reliable information that the offence was committed by IMMM. He deployed City Task Force personnel to various vulnerable points by giving descriptive particulars furnished by the witnesses. On 13.04.2000, on credible information, he went to Chandrayanagutta crossroads along with officers and panchas. He arrested A.1 who gave his particulars and produced M.O.1 1-pistol with 7 live rounds of cartridges. All the 7 cartridges are marked as M.O.12. M.O.1-cell phone was also seized. M.0.48 is the charger. Exs.P58 to P61 -E-mail prints were also seized. A.1 produced M.O.47-rexine bag in which M.Os. l(cell phone), 50(cash of Rs. 5,000/-), 49 (spectacle), and Exs.P58 to 62 were found. They were seized under Exs.P57 in the presence of P.W.57 and another.
A.1 showed A.2 from whom 8 articles were seized under Ex.P63 pursuant to his statement. The articles were found in M.O.51-suit case. A.3 was traced at the instance of A.2. He led police and panchas to a graveyard near D.M.R.L. Company and dug out M.O.53-plastic bag which contained 6 articles (M.Os. 28 to 31 and 2 to 5). They were seized under Ex.P65-seizure report. P.W.74 took fingerprints of A.1 to A.3. On 16.04.2000, A.5 was arrested in the presence of P.W.73 and another. He produced M.O.54-bag which contained 1 to 11 articles. They were seized under Ex.P113-panchanama. A.5 showed A.6 who was found in Chudi Bazar with a scooter. A polythene gunny bag was seized, which was found on footrest of the scooter. 18 articles were found in the bag. They were seized under Ex.P121-panchanama. A.6 showed A.8 and A.9. A.8 produced M.O.58-bag which contained 7 articles. They were seized under Ex.P129-panchanama. Then, A.9 was interrogated in the presence of P.W.73-panch. He produced a polythene cover which contained 5 articles. All of them were seized under Ex.P135-panchanama.
On 17.04.2000, he obtained fingerprints from A.5 to A.8. On 18.4.2000, he was asked to transfer the case to C.I.D. On a requisition given by P.W.74, P.W.38-XXIII Metropolitan Magistrate, Hyderabad held test identification parade on 19.04.2000 and P.Ws. 1, 2 and 13 identified A.1 in the parade. Ex.P39 is the identification proceedings. On 19.4.2000, P.W.74 handed over the case file to P.W.75 who was the then C.I. of C.I.D. city zone. On 22.04.2000, P.W.75 obtained police custody of A.1 to A.6, A.8 and A.9. He examined the witnesses shown by them. On 10.6.2000 he arrested A.10 at his father's welding shop and seized M.O.59-soldering paste, M.O.20-paste tin (soldering lead) and Ex.P136, 138 to 140. They were seized under Ex.P36 in the presence of P.Ws. 35 and 36. A. 10 is alleged to have shown by A.1 who was then in judicial remand in the case.
On 27.6.2000, P.W.75 went to Jagtial and secured presence of P.W.42. He examined P.W.28 and seized E-mail copies Exs.P22 to 25 under Ex.P42 in the presence of P.W.42. He then proceeded to the shop of P.W.29 and seized P.26-call details under Ex.P43-panchanama in the presence of P. W.42.
On 30.6.2000 he proceeded to Nanded and collected statements of A.1, A.6 and A.7 recorded under Section 164 Cr.P.C. by Special Magistrate (P.W.72), Nanded. On 12.12.2000, P.W.75 arrested A. 11 and recorded his statement. Admissible portion is Ex.P84. He obtained sanction from the Commissioner of Police to prosecute the accused for the offences under Sections 3, 4, 5 and 6 of the Explosive Substances Act under Ex.P53-sanction order. He filed charge sheet on 10.7.2002. Later, additional charge sheet was filed against A.11. The motive for the incident, as per prosecution, is that in the year 1997 muslim women customers who visited the shop of deceased, were insulted. But, it squired up by P.W.13 by making the deceased to pay about Rs. 3,000/- as damages.
3. A.1 to A.11, except A.4 case against whom was transferred to Juvenile Court, were tried by the learned Additional Metropolitan Sessions Judge.
4. The learned Sessions Judge framed the following charges against the accused.
Firstly that A.1 to A.3 and A.5 to A.11 prior to 6.4.2000 conspired by entering into an agreement with Azam Ghori and others including A.4 to murder Mahaveer Prasad Modi (deceased) and in furtherance of the common design committed an offence punishable under Section 302 I.P.C. which is punishable with imprisonment for life/death also and that thereby they committed an offence punishable under Section 120B I.P.C.
Secondly, that A.1 on 6.4.2000 at about 8.30 PM in the shop of the deceased namely Mahalakshmi Jewels and Pearls situated at Siddiamber Bazar committed murder intentionally causing the death of the deceased and thereby committed an offence punishable under Section 302 I.P.C.
Thirdly, that A.3 on 6.4.2000 at 8.30 PM at the place mentioned in charge No. 2 in furtherance of the common intention to murder the deceased, committed the criminal act i.e. facilitated A.1 to commit murder of the deceased by taking him on a scooter to the scene of offence and escaping thereafter and thereby committed an offence punishable under Section 302 read with 34 and also 302 read with 114 I.P.C.
Fourthly, that A.6 on the said date and at the same place and time mentioned in charge No. 2 along with A.4 abetted commission of the offence of murder by A.1 by being present at the scene of offence and facilitated the commission of murder by A.1 and thereby committed an offence punishable under Section 302 read with 114 I.P.C.
Fifthly, that A.1 on 6.4.2000 at about 8.30 PM was in possession of fire arm i.e. pistol and 7 live rounds and you used the said fire arm in the commission of the murder of deceased and contravened the provisions of the Indian Arms Act and thereby committed an offence punishable under Section 25(1B)(a) of the Indian Arms Act.
Sixthly that A.1 on 6.4.2000 at about 8.30 PM at the place mentioned in charge No. 2 used a firearm for murdering the deceased and your act resulted in the death of the said deceased and thereby committed an offence punishable under Section 27 of the Indian Arms Act.
Seventhly, that A.3 and A.6 on 6.4.2000 at 8.30 PM were aware of the illegal possession of fire arm in the possession of A.1 and the said firearm was used by A.1 in committing the murder of deceased and thereby they committed an offence punishable under Section 25(1B)(a) and 27 read with 35 of the Indian Arms Act.
Eighthly, that A.6 along with A.4 on 6.4.2000 at 8.30 AM at the scene of offence detailed in charge No. 2 placed a bag containing a bomb (explosive material) i.e. I.E.D. and fled away from there and thereby committed an offence punishable under Section 4 of the Explosive Substances Act.
Ninthly, that A.2, A.3, A.5 and A.6 during the investigation of this case were arrested on 13.4.2000 and 16.4.2000 and were found in possession of explosive substances contravening the provisions of the Explosive Substances Act and thereby committed an offence punishable under Section 5 of the Explosive Substances Act.
Tenthly, that A.1 to A.3 and A.5 to A.11 possessed/aided/ abetted commission of offence contravening the provisions of the Explosive Substances Act and thereby committed an offence punishable under Section 6 of the Explosive Substances Act.
5. When the charges were read over and explained to the respective accused, they pleaded not guilty. To substantiate the case of prosecution, P.Ws. 1 to 75 were examined and Exs.P1 to P146 were marked, besides case property M.Os. 1 to 59. On behalf of the accused, no oral evidence was adduced, but Exs.D1 to D9 were marked.
6. The trial Court, after appreciation of the evidence on record, found;
a) A.1 to A.3 and A.5 to A. 11 guilty of the offence punishable under Section 120B I.P.C., accordingly convicted and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs. 1,000/-in default to suffer simple imprisonment for six months;
b) A.1 guilty of the offence punishable under Section 302 I.P.C., accordingly convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months;
c) A.3 and A.6 guilty of the offence punishable under Section 302 read with 114 I.P.C., accordingly convicted and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for six months;
d) A.2, A.3, A.5 and A.6 guilty of the offence punishable under Section 5 of the Explosive Substance Act, accordingly A.1, A.2, A.3, A.5 and A.6 were convicted and sentenced each of them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for two months;
e) A.7 to A. 10 guilty of the offence punishable under Section 6 of the Explosive Substance Act, accordingly convicted and sentenced each of them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for two months;
f) A.1 to A.3 and A.5 to A. 11 guilty of the offence punishable under Section 25(1B)(a) of the Indian Arms Act, accordingly convicted and sentenced each of them to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to suffer simple imprisonment for two months.
All the sentences were directed to run concurrently. Challenging the same, the present appeals are preferred by the accused.
7. Since all the appeals arise out of the same judgment, they are being disposed of by this Common Judgment.
8. The learned senior counsel Sri T. Bali Reddy, appearing for A.2, A.3, A.6 and A.7 contended that there is absolutely no motive for the accused to commit murder of the deceased Mahaveer Prasad Modi, owner of Mahalakshmi Jewellers and Pearls situated at Siddiamber Bazar, Hyderabad; that the alleged motive, according to the prosecution, is that P.W.I and his father attributed committing of theft of gold chain against four muslim ladies in the year 1997; that when P.W.I and his father found missing of gold chain, P.W.39 was searched and as no gold ornament was found on the person of P.W.39, son of the shop owner i.e. P.W.1, expressed sorry and that matter was compromised when the case and counter complaints were lodged; that the said matter was settled long back and so it cannot be the motive for the incident. He further contended that none of the prosecution witnesses speaks about the presence of A.3 or A.6 at the scene of occurrence or near the scene of occurrence so as to infer that they shared common object to eliminate the deceased; that A.6 did not utter anything to A. 1 or facilitate A. 1 to commit the murder. With regard to conspiracy, the learned senior counsel contended that there is no evidence that all the accused conspired together to do any illegal act, and so also there were no circumstances to infer about the conspiracy entered into among the accused; that all the literature or messages or E-mails would not disclose the name of any one of the accused; that seizure of articles at the instance of the accused would not show about the criminal conspiracy, and that mere making of alleged telephone calls by the accused to persons who allegedly belong to prohibited organizations would not by itself be termed as criminal conspiracy; that the links of conspiracy have not been established beyond reasonable doubt as all the prosecution witnesses examined to prove the links were declared hostile; that inference of conspiracy can not be drawn basing on the statements of S.T.D. call registers alleged to have been maintained by owners of telephone booth at Jagtial. It is further contended that the alleged confessional statements of A.1, A.6 and A.7 said to have been recorded by P.W.72, who is not the competent person authorized by the competent authority to record the statements under Section 164 Cr.P.C., can not be relied upon; that confessional statements of A.1, A.6 and A.7 have been retracted during trial and therefore in such circumstances law requires that there should be some corroboration to the retracted confessions, but there is no such corroboration. He further contended that the alleged recoveries from A.6 and A.9 can not be accepted because there are discrepancies in the evidence of prosecution witnesses and as such they were planted by the prosecution; that the sanction from the District Collector to prosecute the accused under the Explosive Substances Act, 1908 and the sanction of the Commissioner of Police to prosecute the accused for the offences under the Indian Arms Act, 1959 are improper and no credible evidence is adduced by the prosecution to prove the offences; that the recovery of suit case at the instance of A.2 can not be used in view of the fact that police already knew the contents of the suit case; that the alleged confessions given by A. 1, A.6 and A.7 in another case can not be used as evidence in this case as admittedly the confessional statements recorded by P.W.72 are not relating to the present case; that there was no nexus between the articles seized and commission of offence. Hence, he prayed to set aside the convictions and sentences recorded against the appellants/ A.2, A.3, A.6 and A.7.
9. Sri M. Narasimha Reddy, learned Counsel appearing for A.1, A.5, A.9 and A. 10 contended that identification of A.1 by the prosecution witnesses is highly unbelievable because it is alleged by the prosecution that the assailant fired at the deceased and fled away on motor cycle and in such circumstances it is not possible for the prosecution witnesses to identify the assailant; that Ex.P91-alleged confession of A.1 is not admissible under law; that the case of prosecution is that the deceased was shot only once by the assailant but police recovered two empty cartridges from the scene of occurrence, and hence the version of the prosecution as narrated by the witnesses can not be believed. He further contended that the medical evidence is contrary to the ocular testimony and P.W.57-panch witness for arrest of A.1 and seizure, does not belong to the same locality where A.1 was arrested and recover was effected. He further contended that the case of prosecution is that one Azam 1Ghori is the architect of the entire conspiracy, who is no more, and the prosecution failed to prove the connections between A.1 and said Azam Ghori with regard to the conspiracy. He further contended that no sanction was obtained by prosecution as required under Section 196(2) Cr.P.C. Hence, he prayed to set aside the convictions and sentences recorded against the appellants/ A.1, A.5, A.9 and A.10.
10. Sri Raja Reddy, Koneti, learned Counsel appearing for A.8 contended that drawing inference of conspiracy among the accused basing on the S.T.D. calls register alleged to have been maintained by telephone booths, is unsustainable; that seizure of certain letter heads and pamphlets do not ipso facto show that A.8 conspired with the other accused to do any illegal acts, and that the seizure of the bag which contained letter heads and pamphlets would at best show that he was a sympathizer of the organizations mentioned in the pamphlets. Hence, he prayed to set aside the convictions and sentences recorded against the appellant/A. 8.
11. On the other hand, the learned Public Prosecutor contended that one Azam Ghori is the architect of the entire conspiracy; that seizure of cell phone from A.1 would establish the conspiracy between A.1 and said Azam Ghori; that making telephone calls among the accused and also with the persons belonging to banned organizations by name I.S.I., Lashkar-E-Toiba and Indian Muslim Mohammedi Mujahideen coupled with the seizures effected at the instance of the accused by itself would show that all the accused conspired together to commit the offence; that the prosecution witnesses had a clear opportunity to see the assailant of the deceased in view of the fact that the incident took place in a busy market area where sufficient light would be available and that the witnesses also identified A.1 in the test identification parade conducted by competent Magistrate; that all the links with regard to conspiracy are proved; that it is difficult for the prosecution to prove the conspiracy by direct evidence and it is a matter of inference to be drawn from the proved circumstances; though it is not a conspiracy entered into among the accused so as to eliminate the deceased, but at the same time, the conspiracy is to cause large scale destruction to public and private properties and to kill such persons who are opposing their ideology by fomenting communal disharmony. He further contended that the deceased was selected as one of the targets on the ground that he insulted some muslim women when they visited for purchasing gold ornaments in his shop, and therefore all the accused entered into criminal conspiracy to do away the life of the deceased. He further contended that the confession of A.1, A.6 and A.7 recorded in another case need not be treated as an isolated incident and it is one such circumstance that can be taken into consideration along with other evidence; that the evidence of P.W.72 would go to show that at the relevant point of time of the incident he was appointed by the High Court of Mumbai and is competent to record confessional statement under Section 164 Cr.P.C; that after an elaborate consideration of the evidence on record, the trial Court rightly found the appellants/accused guilty and convicted and sentenced them, and in the absence of any perverse findings, the judgment under challenge needs no interference. Hence, he prayed to dismiss the Criminal Appeals.
12. Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the charges levelled against the appellants/accused and whether the judgment under appeals is correct, legal and proper?
INQUEST:
13. P.W.31 is one of the inquest mediators when P.W.69 conducted inquest on the dead body of deceased Mahaveer Prasad Modi, owner of Mahalakshmi Jewellers and Pearls situated at Siddiamber Bazar, Hyderabad (hereinafter referred to as 'the deceased') on 7.4.2000 at about 8.00 AM. According to him, he found bullet injury on the neck of the deceased and the inquest mediators opined that the deceased died due to bullet injury. Ex.P27 is the inquest report. Police also seized M.O.1 1-blood stained shirt, M.O.12-blood stained trousers, M.O.13-blood stained banian, M.O.14-blood stained drawer, M.O.I 5-one pair of socks and M.O.16-sacred thread that was tied to the hand, of the deceased. The evidence of P.Ws. 31 and 69 with regard to holding inquest on the dead body of deceased on 7.4.2000 at 8.00 AM, remained unchallenged. So, from the recitals in Ex.P27 and from the evidence of Exs.P31 and P69, it is established beyond reasonable doubt that the deceased died as a result of bullet injury.
POST-MORTEM EXAMINATION:
14. P.W.32 is the Associate Professor, Forensic Medicine at Osmania Medical College, Hyderabad. He conducted post mortem on the dead body of deceased on 07.04.2000 from 10.00 AM to 11.00 AM and found the following ante-mortem injuries.
1) A rifled fire arm entry wound of elliptical shape with larger diameter running horizontally with diameters of 7.5 mm x 7.0 mm. A rim of abrasion measuring about 2 mm surrounding the skin perforation with wider area located at its lateral aspect. Wound is located in front of right side lower neck. 17 cms inner to the acromiom and 3 cms from midline of the neck and 4.5 cms above and lateral to the suprasternal notch. Blackening absent. Track taken by the bullet is from right to left and above downwards. Bullet entered the body just inner to the right lower end of sternomastoid muscle, pierced the right lower end of the jugular vein, perforated the middle part of the trachea, entered the middle mediastinum of chest. After perforating the upper lobe of the left lung with 1 cms diameter it exited through the left posterior chest wall through the 5th inter costal space, 7 cms from the vertebral body and making a fracture on the upper border of the 6th rib. The left upper lobe of lung is collapsed. About 200 cc of blood present in the thoracic cavity.
2) Fire arm exit wound present on the left back of chest in the middle measuring 1.5 cms x 1 cm, irregular in shape. It is located 15 cms from midline and 19 cms below and medical to the left acromiom and 12 cms from posterior auxiliary line.
He opined that the deceased appeared to have died 12 to 24 hours prior to the post-mortem examination and the cause of death is due to firearm injury to the neck structures and left lung. Ex.P27(a) is the post-mortem examination. According to him, the injury No. 1 is firearm entry wound and injury No. 2 describes exit wound connecting to injury No. 1, and therefore injury Nos. 1 and 2 are caused by the same bullet.
In cross-examination, to a specific question as to whether that type of injury would cause instantaneous death, the Doctor opined that he did not say how many minutes thereafter the death occurred, but he stated that usually brain cells survive for a few minutes after the receipt of the injury. He also admitted that police did not produce any used bullets before him. Practically, the evidence of P.W.32 and the recitals in Ex.P27(a) remained unchallenged. So, from the medical evidence, it is established beyond reasonable doubt that the death of deceased is homicidal in nature.
SCENE OF OCCURRENCE:
15. P.W.63 is one of the mediators present when P.W.69 observed the scene of offence under Ex.P69-observation mahazar. According to him, he was called to act as a mediator. He noticed blood on the steps and on the counter and on one stool. He also found a bullet on the show case and the bullet pierced through the show case and hit the velvet cloth. He noticed one empty cartridge and one diffused bomb underneath a tree. M.O.17 is the maroon colour velvet cloth, M.O.18 is broken glass pieces, M.O.14 is empty portion of the bullet and M.O.15 is empty cartridge. He also deposed that blood stained earth and control earth were seized. The evidence of P.W.63 and the recitals in Ex.P69-observation mahazar remained unchallenged. Except small discrepancy with regard to time of calling him as mediator, no other material is elicited to discredit the testimony of this witness.
MOTIVE:
16. Motive for doing a criminal act is generally a difficult area for prosecution. One can not normally see into the mind of another. It is emotion which impels a man to do a particular act. Motive is not an integral part of crime. It is only an aid in the assessment of criminality. When there is acceptable direct evidence regarding the incident itself, proof of motive looses its significance.
In the case on hand, motive, according to the prosecution, is that the deceased was selected as one of the targets since he hurt the feelings and sentiments of muslim community. According to P.W. 1, in the month of February, 1997, on one day, four muslim ladies came to his shop and they were wearing burkahs; one among them was a regular customer; when they asked to show black beads chains, he showed 10 pieces to them; when he counted after showing, one chain was found missing; when he questioned about missing of the chain, they told him that they did not take it. He further stated that when he stated to them that he would report to police, the ladies asked him to get them checked with the other lady customers present there; then he asked them to go to upstairs; that 3 ladies were searched there and when the fourth lady was about to be searched, she removed the chain from her purse; the said ladies stated that they were defamed; that after leaving the shop, they returned to the shop along with some others, who wanted P.W.I to pay Rs. 3,000/- to the ladies; then P.W.I gave the amount to the said ladies; seeing that there was going to be some big commotion, he closed the shutters of the shop and intimated the police; when the police came to his shop, he lodged the report; the women also gave a complaint against him and the matter was compromised within 15 days thereafter. For about three years thereafter, the alleged incident took place.
17. Two of the ladies were examined as P.Ws. 39 and 40. According to P.W.39, they went to the jewellery shop along with two ladies of their locality for purchasing mangala sutram(latcha) and while they were looking at latcha, son of owner of the shop told them that it was missing and then she was taken to upstairs for search by a lady and her burkah was removed and later she was told that it was traced and the son of the owner expressed sorry to her. She further stated that police took her to police station and recorded her statement. She gave Ex.P40-report to police. She did not report the matter to any one of the accused nor the accused came to know about this incident. There is absolutely no connection between this incident and the accused.
18. P.W.40 is another muslim lady, who went to the shop of P.W.I along with P.W.39 and two others. She did not support the case of prosecution. So, from the evidence of P.Ws. 39 and 40, it can not be inferred that all the accused entertained grouse or enmity against the deceased to eliminate him in retaliation of the incident said to have been taken place three years prior to his death. Therefore, the motive alleged by the prosecution, can not be the motive for the incident. Further more, the evidence of P. W. 1 would go to show that the matter was compromised, as the three ladies are relatives to his customer. Therefore, when the matter was settled between P.W.39 & others and P.W.I and when they have not reported about the incident to anybody much less the members of the banned organizations, the motive as stated by the prosecution can not be accepted.
CHARGE FOR THE OFFENCE UNDER SECTION 302 I.P.C. AGAINST A.1 AND 302 READ WITH 114 I.P.C. AGAINST A.3 AND A.6:
19. The case of prosecution is that on 6.4.2000 at about 8.30 PM while P.W.I and the deceased were sitting in their shop i.e. Mahalakshmi Jewellers and Pearls situated in Siddiamber bazaar, Hyderabad and there would be counters in front of them. The said shop is located on the road running from Afzalgunj to Mozamjahi market in Hyderabad. At that time, one person while entering the shop, bent to some extent on the second step. P.W.I thought that he was removing chappals or shoes, but just within seconds while he was looking without turning his head, that man shot at his father holding gun in his both hands. The deceased stood up and stretched out his right hand, may be to catch hold of the said person. The said person ran away from the shop. Then his father came out of the counter in order to catch hold of the said person, but fell down. He was taken in auto to Osmania General Hospital, which is near to the shop. P.W.48 examined the said Mahaveer Prasad Modi on 6.4.2000 at 9.00 PM brought by P.C. No. 6187 of Afzalgunj police station and found him dead. Then, P.W.I gave Ex.P1-report to P.W.69-Inspector in Casualty ward. He identified A.I as the person who was standing in 6th position in dock as the person who shot at his father. He also identified A.1 in Chanchalguda jail in the presence of a Magistrate within 15 days from the date of the incident.
Similarly, P.W.2, who claimed as servant boy in Mahalakshmi Jewellers, was present in the shop, identified A.1 as the person who took out a rifle and shot the deceased holding it in his both hands. About 13 or 14 days after the incident, he identified A.1. According to him, within a minute the entire incident took place. Though it is suggested to him that he was not present at the shop, the same is denied. With regard to identification, he admitted that he identified A.1 as P.W.1 told him that he had to identify the person whose left hand there was a burnt scar and in the identification proceedings A. 1 alone was having the burnt scar.
20. P.W.4 is the salesman in Mahalakshmi Jewellers. He speaks about a person running away from the shop and earlier to that he heard a sound just like breaking of glass and noticed the deceased falling down. In view of the fact that he did not identify A. 1 as the assailant of the deceased, he was declared hostile by the prosecution. Except marking Exs. P2 and P3 which are the statements recorded by police during the course of investigation, nothing has been elicited to connect the accused with the crime.
21. Similarly, P.W.5, who is sales man in Mahalakshmi Jewellers also did not support the case of prosecution. Except marking Exs. P4 and P5 which are the statements recorded by police during the course of investigation, nothing has been elicited from his evidence to connect the accused with the crime.
22. P.W.8, who worked as a sales man in Mahalakshmi Jewellers, deposed about the incident that a man whose height is below 5 1/2 feet aged about 25 years ran away from the shop. That person was having a pistol in his hand. But, again he stated that he did not observe the said man running away with a pistol. He did not identify A. 1 as the assailant of the deceased.
P.W.12 is another salesman in Mahalakshmi Jewellers. He deposed that a boy aged about 18 years was moving with a bag in front of the shop. He did not speak anything about the incident. P.W.30, who was discussing with the deceased in the shop at the time of the incident, deposed about the deceased being shot by a person. But, he did not identify A. 1 as the assailant.
23. P.W.13 is the nephew of the deceased. At the time of the incident, he found the deceased lying on the floor and a boy aged about 20 to 25 years with a firearm in his right hand was going away hurriedly. He also noticed a bag near the tree which is in front of the shop. He identified A.1 as the person who was hurriedly moving holding the firearm.
Therefore, the evidence of P.Ws. 1, 2 and 13 is relevant with regard to offence of murder by A.1.
24. P.W.38 is the XXIII Metropolitan Magistrate, Hyderabad at the relevant point of time of the incident. He conducted test identification parade between 2.35 PM and 4.10 PM on 19,4.2000 at Central Prison, Chanchalguda. He recorded statements of P.Ws. 1, 2, 12, 13 and one P. Sangappa. The suspects A.1 and A.4 were mingled among the 11 non-suspects. When P.W.1 was brought by Attender, he identified A.1. When the suspects again changed their positions and also clothes, P.W.38 summoned P.W.2. He also identified A.1. Whereas the said Sangappa did not identify anybody. When P.W.13 was summoned, he identified A.1. P.W.I2 did not identify any of the suspects as the assailant. Ex.P39 is the identification proceedings. He admitted in cross-examination that the witness Pradeep Kumar Agarwal stated before him that one of the suspects was having white dots on his left hand near the wrist. Except suggesting that the proceedings were conducted without observing the procedure laid down under Rule 34 of the Criminal Rules of Practice, nothing has been elicited to discredit his testimony.
25. Identification parade is generally held during the course of investigation with the primary object of enabling a witness to identify the persons who are suspected to have committed the offence and who are not previously known to the witness. Identification is necessary where accused is not known to the witness to the incident, but had an occasion to see the accused for a while at the time of commission of the offence. The facts that establish the identity of the accused person are relevant under Section 9 of the Evidence Act. The substantive evidence of a witness is the statement made in Court and the purpose of test identification parade is to test the veracity of that evidence.
26. As regards the incident proper, the entire incident took place within a minute. Though the incident is alleged to have taken place at about 8.30 PM, admittedly it took place in a jewellery shop and therefore there would be sufficient illumination of light available so that a person can be seen clearly. P.W.I noticed A.1 for about 5 or 6 seconds while he was entering into the shop. Therefore, there is a possibility for this witness to identify the assailant of his father because the physical features of the assailant would have been imprinted in his mind so that he can recollect and identify him at a later point of time. It is suggested to him that police showed photographs of A.1 to him and also that with the aid of the photograph of A. 1 which was published in news paper, he identified him, and that at the instance of police he identified him in test identification parade and also in the Court, but the same were denied by P.W.I. Mere hurling of some suggestions is not an evidence.
27. Ex.P1 is the report given by P.W. 1 to police at about 10.00 PM on the date of incident. A perusal of the contents in Ex.P1 would go to show that at about 8.35 PM one Umashanker (P.W.30), business man hailing from Coimbatore, was discussing with the deceased with regard to business; after about 10 or 15 minutes, one person who was short in height wearing pant and shirt with spectacles entered the shop and fired at the deceased on throat at close range with a firearm; the deceased came out of the counter to catch hold of him and collapsed with a bleeding injury on the throat; the culprit immediately turned back and ran towards Siddiamber Bazar masjid lane with the firearm and disappeared. Therefore, broad descriptive particulars of the assailant have been given by P.W.I. The presence of P.W.I at the relevant point of time of the incident can not be doubted since he is son of the deceased and was looking after the accounts at that time. The test identification parade was conducted within 15 days from the date of the incident. No witness is examined on behalf of the accused to show that the photograph of A.1 was published in local newspaper prior to conducting of the parade. The suggestions put to P.W.I are not substantiated with any other evidence. There is every possibility or scope for P.W.I to identify the assailant of his father when he had an occasion to see him for a short time. Since the assailant used firearm, physical features of the assailant must have been imprinted in the mind of P.W. 1 so as to recollect the same and identify him at a later point of time. That is the reason why he could be in a position to identify A.1 in the test identification parade conducted by P.W.38 as the assailant of the deceased and also when he testified about the incident at the time of his examination in the Court on 22.04.2002. There is nothing unusual or unnatural for this witness to identify the assailant of the deceased. So, we have no hesitation in accepting the evidence of P.W.I in identifying the assailant of the deceased.
28. Coming to the evidence of P.W.2, he identified A.1 while he was standing in third position along with non-suspects. His presence as sales boy was mentioned in the earliest report-Ex.P1. He narrated the sequence of events that took place on that day from the time the assailant entering into the shop, firing at the deceased and running away. No doubt, he admitted in cross-examination that before identification parade, P.W. 1 told him that he had to identify the person on whose left hand there is a burnt scar (white) and by looking at that mark he identified the person and A.1 alone was having the burnt mark among the persons who were standing in the row. When the suggestion was given to him that he identified A. 1 at the instance of P.W. 1, the same was denied. Further, it is not elicited in the evidence of P.W.I that he identified A.1 with the help of the scar on the left hand of A.1. So also, it is not suggested to P.W.I that he directed P.W.2 to identify the person in the test identification parade who is having the burnt scar on left hand. Therefore, a stray admission by P.W.2 in cross-examination can not be taken as a sole ground to discredit his testimony and arrive at a conclusion that he identified the accused with the help of burnt scar as suggested by P.W. 1. Since the presence of P.W.2 is established beyond reasonable doubt, there is possibility for this witness to identify the assailant. 29. Coming to evidence of P.W. 13, which is to the effect that on that day he went to the shop of deceased with regard to some business matter and at about 8.30 or 8.35 PM while he was parking his scooter in front of the shop of deceased and he was about to enter footpath which was adjacent to road, he found the deceased lying on the floor and a boy of 20 to 25 years with firearm in his right hand going hurriedly and took left turn towards Siddiamber bazaar masjid chowrastha and escaped. He further deposed that he was of 5 1/2 feet height and as a matter of fact he identified A. 1 in the test identification parade conducted by P.W.38 on 19.4.2000 and also identified A.1 in the Court when stood up in 7th position. He was examined on the same day at about 9.15 or 9.30 PM and he saw A.1 hurriedly going for 30 seconds. It is suggested to him that he identified A.1 in the test identification parade and as well as in the court as photographs and videographs of A.1 were shown to him prior to the incident, but the same is denied. Presence of P.W.13 at the time of the incident can not be doubted because he claims to be a regular visitor to the shop of the deceased. So, from the evidence of P.Ws. 1, 2 and 13, it is clear that A.1 who shot with a firearm at the deceased.
30. There is discrepancy with regard to nature of firearm used by A.1 because P.W.2 stated that the assailant took out rifle and shot at the deceased whereas P.W.I stated that the assailant used a gun to shot the deceased. P.W.2, who is a layman and a servant boy, may not be in a position to differentiate between a gun and rifle. So, on that ground, the evidence of P.W.2 can not be disbelieved and that discrepancy would not in any manner affect the case of prosecution.
31. The other circumstance with regard to involvement of A. 1 is the evidence of P.W.74, who is Inspector of Police at CCS. West Zone at the relevant point of time of the incident. P.W.57 is one of the mediators present when A.1 was apprehended by police on 13.4.2000 at about 7.30 PM at Chandrayangutta crossroads, Hyderabad. The evidence of P.W.57 would go to show that after taking tea in hotel when he was coming out some people fell upon one person and had caught hold of him; when he went there, CCS. police apprehended one person; then the police called him and another person to act as mediators. He further deposed that the person apprehended by police removed a pistol from his waist which was loaded with five rounds. It is his further evidence that apart from the said fire arm, two rounds were in his side pocket and when he questioned, the said person revealed his name as Syed Muqtar Ahmed; that the said person was having a bag on his shoulders which contained Rs. 50/- notes worth Rs. 5,000/-, five E-mail letters, a cell phone, a charger, a small diary and spects. Ex.P57 is the admissible portion of seizure panchanama. P.W.57 identified A.1 who was standing in 8th position in the trial Court as the person apprehended by police and also identified M.O.I 1 as the pistol which is alleged to have been produced by A.1 which contained 5 live cartridges. M.O.12 is 7 live cartridges i.e. 5 live cartridges found in M.O.11 and 2 cartridges found in side pocket of A.1.
On a specific question put to him, he stated that he acted as panch witness only in this case. According to him, at the time of the incident, he was working as a Security Guard. He went to Chandrayangutta on that day to meet in-charge of his security wing, who stays there. Descriptive particulars of the weapon have been clearly mentioned in Ex.P57. A perusal of Ex.P57 would go to show that A.1 produced a pistol before panchas and on examination it was found loaded with fire rounds in magzine and on the magzine 9927 numbers engraved, and that one of the sides, Bult star mark was available and on the weapon G8 165 is engraved level No. 8 was not visible clearly. P.W.57 was cross-examined at length, but nothing has been elicited to discredit testimony of P.W.57 and the recitals in Ex.P57.
32. With regard to time taken in sending M.Os.11 and 12 to Forensic Science Laboratory, the learned Counsel for the accused placed strong reliance on a decision in Vijay Singh v. State of M.P. 2005 Crl.LJ 299 wherein it is held as follows: (para 24) ...Since there is no explanation by the prosecution that why the empty cartridge and fired bullet were kept for 10 days, as well as there is no evidence that where and in what condition they were kept, it would be highly unsafe to hold that these articles which were alleged to have been seized are the same articles which were sent to the ballistic expert for obtaining his opinion. We may also place reliance in the case of Modern Singh v. State of Rajasthan AIR 1978 SC 1511 in this regard.
In the case on hand, the Exs.P11 & P12-pistol and cartridges were sent to Regional Forensic Science Laboratory on 19.04.2000. A.1 was arrested on 13.04.2000 and in pursuance of his confessional statement, M.O.11-pistol and M.O.12-7 live cartridges i.e. five live cartridges that were found in M.O.11 and 2 live cartridges found in his side pocket, were seized. These articles were received by P.W.54 in sealed box. The explanation given by P.W.74-investigating officer is that as there was no time for him, he could not send them to Regional Forensic Science Laboratory. As seen from his evidence, he appears to have been busy with the investigation work. On 14.04.2000, A.1 to A.3 were produced before the concerned Magistrate. ON 15.04.2000, he filed the requisition to the Magistrate for police custody of certain accused. On 16.04.2000, he arrested A.5, A.6, A.8 and A.9. On 17.04.2000, he produced them before the concerned Court. On 18.04.2000, he received instructions to transfer the file to C.I.D. On 19.04.2000, he sent all material objects to the Forensic Science Laboratory besides handing over the case file to P.W.75. So, under these circumstances, the delay cannot be said to be wanton or willful. It is not the case of accused that because of delay some changes occurred in material objects. Therefore, the contention of the learned Counsel for the accused is wholly untenable.
33. It is also argued by the learned Counsel for the accused that the witnesses of the locality where A. 1 alleged to have been arrested, have not been called so as to witness the arrest and seizure of certain articles. No doubt, P.W.57 is not the resident of the locality where A.1 was arrested, but at the same time, he has given proper explanation for his presence at the time of arrest of A.1 stating that he went to Chandrayanagutta crossroads to meet in-charge of his security wing and while he was taking tea in the hotel, he went to the place of arrest of A.1. He specifically stated that he did not act as a panch witness in any police case. His presence at that time is found to be acceptable. So, on that ground alone, the evidence of P.W.57 cannot be rejected, when especially he is not shown to be a stock witness to police. Except suggesting that A.1 was not arrested on 13.04.2000 at about 7.30 PM in the presence of P.W.57 by P.W.74, nothing has been elicited to discredit his testimony. Even assuming for a moment that the arrest is illegal for non-calling of two respectable inhabitants of the locality, still the seizure of the articles in pursuance of the confessional statement given by A.1 would not in any manner be affected.
BALLISTIC EXPERT:
34. P.W.54 is the Assistant Director of Forensic Science Laboratory. According to him, the following items were received by him.
1) A pistol with magazine and bearing No. G8165.
2) Seven rimless metallic cartridges bearing head stamp marking 11-83.
3) Two Nos. of plastic objects marked as 'Transceiver' made in China A bearing UK designed regn. No. 1057720 labelled as Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
4) One timer mechanism fixed on green coloured plastic container with switch mechanism with one battery "Nippo' company of 1.5 volts, 1 quartz clock marked as "Trishul' taped with blue coloured tape labelled as Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
5) Three Nos. 9 volts batteries marked as HW-Hi-watt general purpose labelled as Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
6) One Battery power tester of blue colour labelled as Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
7) Seventeen aluminium capsules with two white electric wires each.
8) Greyish silvery coloured powdery substance.
9) Two empty metallic pipes measuring around 12" in length with one side opening having threads on one end with 2" diameter labelled as item No. 9 Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
10) A metallic pipe around 4" in length with one side opening closed with iron lid with two holes and 2" and 1 1/2" diameter respectively labelled as item No. 10 Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
1l) Brownish black coloured substance.
12) Silvery grey coloured substance.
13) A pair of rubber gloves.
14) Silvery grey coloured substance.
15) One empty metallic pipe of approx. 12" length closed with iron lids on both sides labelled as item No. 15 of Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
16) Two Nos. of empty metallic welded pipes of Approx. 13" in length closed with iron lids on both sides, labelled as item No. 16 in Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
17) One metallic pipe six 12" x 3" containing grevish material with two Electric detonators and nails.
18) Twelve aluminium capsules with two white electric wires from each.
19) A 9 volts battery marked as Hi-watt general purpose with a switch with green and yellow wires kept in a small plastic box.
20) Quartz clock black in colour labelled as Titex Quartz India bearing No. 03990 and PAT Pend No. 00388838 with a big needle.
21) Two empty metallic pipes of 12 1/2" in length with one closed and other end opened labelled as item No. 21 in Cr. No. 172 of 2000 of P.S. Afzalgunj along with signed chit.
22) One soldering device of 'Record' make with black handle of 35 watt. with black wire along with plug.
23) One cutting plier with blue coloured handle marked as Kohinoor-Raj.
24) A wire cutter with red coloured handle marked as 'Multiteck 150 B wire stripper and cutter.
25) Three Nos. of screw driver, two Nos. with red coloured handle each and one No. with green coloured handle.
26) Two Nos. of testers one tester with green coloured handle marked as "TAPARIA-500V" and the other with yellow coloured handle.
27) A pair of rubber gloves of Dialomatic make bearing No. 6, Jan. 1997.
28) Wires of blue, black, yellow, green and red colours in sealed coil.
29) Three Nos. of sealed Hw-Hi-Watt 9 volts battery general purpose.
30) One screw measuring about 1" in length with a nut.
31) One quartz clock labelled as Trishul bearing No. 998910 with a needle.
32) Twenty five Nos. of iron nails each measuring approx. 2 1/2" in length.
33) One switch mechanism marked as JME 2A - 250V.
34) Small bundle of soldering wire.
35) Silvery grey coloured powdery substance.
36) Silvery grey coloured powdery substance.
37) Silvery grey coloured powdery substance.
38) A black colour cylindrical pipe.
39) A metallic capsule with a pair of white electrical wires.
40) A metallic pipe six 12" x 3" containing grayish substance along with two electric detonators and nails.
41) One green plastic container with Titex Quartz clock fixed having 1.5 volts bettery, 9 volts battery connected to a electric switch with electric wire.
M.O.55 is the final report comprising chemical analysis and explosive expert opinion. P.W.33 is the Ballistic Expert. Ex.P28 is the report dated 16.5.2000 given by P.W.33. According to it, M.O.I 1 is the pistol and M.O.12 is seven metallic cartridges. As far as pistol and cartridges are concerned, the same were analysed by the Assistant Director and they were found to be company made 7.63 mm caliber pistol and company made silencer respectively. He testified the pistol. It was in working order. According to the report, item No. 1 was fired previously and the exact date when it was fired can not be ascertained. Item No. 38 can be used as silencer for item No. 1. Item No. 7-empty 7.63 mm caliber-Mauser pistol cartridge case, was fired from item No. 1 i.e. pistol. Item No. 5 which is 7.63 mm caliber-Mauser pistol bullet, could have been fired from item No. 1.
Though P.W.33 admitted that pistol like M.O.11 and cartridges like M.O.12 are available in open market, he specifically stated that they can not be sold without licence. He stated that M.O.12 can be fired from M.O.11. According to him, M.Os. 14 and 15, which are bullet and empty cartridge respectively, are fired from M.O.11-pistol. Practically, his evidence remained unchallenged. From the above evidence, it is clear that M.O.11 is the pistol used in commission of the offence.
35. P.W.72 is the Special Judicial Magistrate who recorded Ex.P91-confessional statement of A.1 on 05.06.2000. In the first instance, he went to Central Prison, Nanded on 04.06.2000 at 11.00 AM and he put some questions and A.1 was ready to give his confessional statement. But, he gave time of 24 hours for him and Ex.P87 is the proceedings on that day. In cross-examination he admitted that he questioned A.1 in Marathi and A.1 gave answers in Hindi and that he understood the questions in Marathi and gave answers. He further stated that he came to know that A.1 knew Marathi when he asked him though the same is not noted in the confessional statement or in any of the proceedings. It is suggested to him that he is not at all the Judicial First Class Magistrate and he did not go to record confessional statement of A. 1, but the same is denied. Though he admitted that he was working in Irrigation Department, but on the day when he was asked to record the confessional statement of A. 1 on the directions of the Chief Judicial Magistrate. He stated in the chief-examination that he was appointed as Special Judicial Magistrate as per the Notification No. A (CRI) 1006/74, dated 9.6.1999 of High Court on appellate side for a period from 16.6.1999 to 15.6.2000. The evidence is clear that he was appointed by the competent authority as Special Judicial Magistrate. Therefore, confessional statement given by A. 1 is true and voluntarily. Time for reflection was also given.
36. In a decision in Alokenath Datta and Ors. v. State of West Bengal it is held as follows:
In a case of retracted confession, the Courts while arriving at a finding of guilt, would not ordinarily rely solely thereupon and would look forward for corroboration on material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature.
In another decision in State (NCTE of Delhi) v. Navjyot Sandhu @ Afsan Guru , it is held as follows:
Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true.
37. Another circumstance against A.1 is that the evidence of P.W.66-Fingerprint Expert. At the scene of occurrence, certain articles were given by the Clues Officer and on examination of those articles, he developed two chance prints. On 13.04.2000, he received 4 finger print slips from the Inspector of Police for comparison relating to A.1 to A.3 and another. On examination and comparison the photo chance print marked as 'A' is found identical with the right index finger impression of A.1. Ex.P72 is the report given by him and Ex.P73 is the photo comparison chart, which contains reasons for his opinion. He admitted that the developed chance prints were photographed by CCS. Photographer at 11.00 PM. Except suggesting that the opinion given by him is not correct, nothing has been elicited to discredit his testimony.
All the aforesaid circumstances would indicate that A.1 is the assailant of deceased.
38. Coming to abetment by A.3 and A.6, the evidence of P.W.73 and recovery of M.Os. 34 to 36, 38 to 45, 6 to 10 and 13 under Ex.P121 from A.6, is relevant. P.W.72 worked as Special Judicial Magistrate, Nanded. He received a requisition from P.W.62 to record confessional statements of A.1, A.6 and A.7. He went to Central Prison, Nanded and questioned A.6 on 31.5.2000 at 4.00 PM. Though A.6 was ready to give his confessional statement, he gave 24 hours time to think over. Again on 01.06.2000 at 4.00 PM, he went to the Central Prison and recorded statement of A.6. Ex.P111 is the certified copy of his confessional statement.
In cross-examination, he admitted that Ex.P92 is the Xerox copy of proforma of confessional statement which was given to him at the time of his appointment. He admitted that he posed questions to A.6 in Marathi. It is suggested to him that A.6 did not know either Marathi or Hindi and that he did not visit the jail and record the confessional statement of A.6, but the same are denied. Nothing has been elicited in so far as the competency of P.W.72 to record the confessional statement of A.6 in pursuance of directions of High Court of Mumbai on appellate side. Ex.P104 is the translated copy in English wherein it is stated as follows:
Azam Ghori asked us to kill Mahavir Modi owner of Mahalaxmi Jewellers. We went to Hyderabad and murdered Mahavir Modi. At that time Shafik fired bullet on Mahavir Modi, we were all with him.
Though it is recorded in a crime relating to Nanded police station in Maharashtra, the learned Public Prosecutor contended that the confession recorded in another case is not to be treated as an isolated instance, but the same has to be considered along with other evidence.
39. Now, the question is whether the confessional statement of A.6 recorded by P.W.72 in another case can be used as evidence against him in the present case, especially when he retracted the confession. The law is well settled that confessional statement of an accused recorded under Section 164 Cr.P.C, if found to be true and voluntary and not an outcome of threat, coercion or promise, certainly the same can be used as a substantive evidence so as to convict an accused. There is no rule of law that even retracted confession should be corroborated on material particulars, however, the rule of prudence requires that it should be corroborated on material particulars. Since A.6 is the accused in crime No. 28/2000 of Nanded p.s. for the offences under Sections 307, 120B I.P.C. and 3 and 4 of the Explosive Substances Act. It is clear from the said statement that he came to Hyderabad and at the time when A.1 fired bullet on deceased Mahaveer Prasad Modi, he was present along with him. Except the retracted confession there were no other circumstances in the prosecution evidence so as to take as corroboration on material particulars. Presence of A.6 was not spoken to by any one of the witnesses examined on behalf of prosecution.
40. As regards A.3, the learned Sessions Judge observed that there is no evidence to prove presence of A.3 at the scene of occurrence. But, the confessional statement of A. 1 would go to show that A. 1 ran away on scooter of A.3. There cannot be any dispute that the confession of co-accused person cannot be treated as substantive evidence. When the prosecution relies upon a confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such accused person and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against such accused person, the Court should turn to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. In other words, confession of a co-accused can only be used to lend assurance to other independent evidence sufficient for sustaining a conviction.
41. In pursuance of confession of A.2, A.3 was arrested and he gave Ex.P64-confessional statement. M.0.52 is the scooter produced by him. Thereafter, A.3 led to burial ground and produced M.O.28 black colour powder, M.O.29-silver grey colour powder, M.O.30-one pair of rubber gloves, M.O.31-one empty metallic pipe, M.O.32-9 volt batter, M.O.53-plastic bag and M.Os. 2 to 5 are the couplings. They were seized under Ex.P65-seizure panchanama. Even assuming for a moment that the recovery of those articles in pursuance of the confessional statement given by A.3, they were not found at the scene of occurrence. They are not the material used by the assailants. No other witnesses stated about presence of A.3 and A.6.
42. The other offence against A.3 is that Azam Ghori used to send Exs.P22 to 25-E-mails and A.3 is the person who accompanied Azam Ghori. The evidence of P.W.28 who is Computer Operator in Cybertech Computers would go to show that A.3 used to accompany Azam Ghori. P.W.29 also stated that one Azam Ghori used to send fax messages to Soudi Arabia, Hyderabad, etc. and Ex.P26 is call detail particulars. He also stated that A.3 used to accompany the said Azam Ghori. Though he was declared hostile by prosecution, but at the same time, his evidence would not be erased from the record simply because he is declared as hostile. His evidence coupled with the evidence of P.W.29 would go to show that A.3 used to accompany Azam Ghori while the latter was sending fax messages and E-mails. But, these acts are not at all connected with the murder of the deceased in this case.
43. A.5 was arrested on 16.04.2000. He promised to show house of A.6 and accordingly A.5 lead to the house of A.6 located at Chudi Bazar mosque who was on the road with a scooter bearing No. AHO 2100. He was taken into custody by P.W.74 and on his confessional statement, certain incriminating materials like M.Os. 6 to 10, 34 to 36, 38 to 45 were seized. P.W.55 analysed the articles sent by police and gave Ex.P56-opinion stating that M.Os. 6 to 10, 34 to 36, 38 to 40, 42 to 45 are general tools making in improvised explosive devices - time bombs. Nothing has been elicited to discredit the testimony of P.Ws. 55 and 74. Arrest of A.6 and recovery of certain materials used in improvised explosive devices -bombs from the possession of A.6 is established. This cannot be used as a corroboration and no witness stated about presence of A.6 at the time of occurrence of the incident or immediately thereafter. Therefore, the offence under Section 302 read with 114 I.P.C. is not made out against A.3.
OFFENCE UNDER SECTION 5 OF THE EXPLOSIVE SUBSTANCES ACT IN RESPECT OF A.2, A.3, A.5 AND A.6 :
44. Section 4 of the Explosive Substances Act, 1908 reads as follows:
Any person who unlawfully and maliciously-(a)does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to case serious injury to property; or
(b)makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, is punishable.
Definition of 'Explosive Substance' includes any materials for making any explosive substance, also any apparatus, machine, implement or material used, or intended to be used, or adopted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement, as per Section 2 of the Act.
45. The learned Counsel Public Prosecutor relied on a decision in Mohamad Usman Mohammad Hussain Maniyar and Anr. v. State of Maharashtra wherein it is held as follows: (para 10) In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove; (i) that the substance in question is explosive substance; (ii)that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii)that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
The burden of proof of these ingredients is on the prosecution. The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
There is no dispute about the proposition of law.
46. P.W.55 is the Expert in Explosives having underwent training in Explosives in B.S.F., Hazaribagh. As per the instructions of the Director of Forensic Science Laboratory, he visited the scene of occurrence around 10.30 PM and found a metallic pipe containing grayish substance with two electric detonators and nails. M.O.51-suit case, M.O.26-two empty metallic pipes, M.O.21-wireless sets, M.O.25-greyish silver colour powder substance, M.O.23-9 volt batteries, M.O.24-battery power tester, M.O.22-timer mechanism, M.O.27-metallic pipe, were seized in pursuance of Ex.P63-confessional statement of A.2. M.Os.22, 23, 24, 25, 26, 27 are useful in making improvised explosive substances. Whereas A.3 was found in possession of M.O.28-black colour powder, M.O.29-silver colour powder, M.O.30-pair of rubber gloves, M.O.31-metallic empty pipe, M.O.32-9 volt battery were useful for making improvised explosive devices. A.5 was found in possession of M.O.33-quartz watch which is useful for making improvised explosive devices. In so far as A.6 is concerned, he was found in possession of M.O.34-empty metallic pipes, M.O.6-soldering iron, M.O.35-wire cutter, and M.Os. 43 to 45-silver grey coloured powder substance, which are useful for making for making improvised explosive devices. Practically, the evidence of P.W.55 remained unchallenged. In the light of seizure of aforesaid objects and in view of the definition of 'explosive substance' conviction and sentence of these accused for the offence under Section 5 of the Explosive Substances Act, 1908, has been established beyond reasonable doubt.
47. No charge is framed against A.1 for the offence under Section 5 of the Explosive Substances Act, 1908 and no finding is given that A.1 was guilty of the offence under Section 5 of the Act. Still, A.1 was found guilty for the offence under Section 5 of the Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for three years. Therefore, the conviction and sentence of A.1 for the offence under Section 5 of the Explosive Substances Act, 1908 is liable to be set aside and is, accordingly, set aside.
OFFENCE UNDER SECTION 6 OF THE EXPLOSIVE SUBSTANCES ACT IN RESPECT OF A.7 TO A. 10 :
48. Section 6 of the Explosive Substances Act, 1908 reads as follows:
Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any offence under this Act is punishable.
In so far as these accused are concerned, except the confessional statement of A.1 and A.6, there is no other evidence with regard to supply of material or abetting of offence. The trial Court, on the premise that all the accused were members of conspiracy, convicted them for the offence under Section 6 of the Explosive Substance Act, 1908.
'Abetment' as defined under Section 107 I.P.C. reads as follows:
A person abets the doing of a thing, who First-instigates any person to do that thing; or Secondly- engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- intentionally aids, by any act or illegal omission, the doing of that thing.
49. The offence of abetment must mainly depend upon guilty knowledge or intention of the abettor. It is well known that an act of abetment may take place in one of the 3 ways. i)instigation; ii)conspiracy; iii)intentional aiding. As seen from the evidence on record, none of the 3 conditions would apply. Therefore, the convictions of A.7 to A.10 for the offence under Section 6 of the Explosive Substances Act, 1908 is unsustainable and is liable to be set aside.
CHARGE UNDER SECTION 3 PUNISHABLE UNDER SECTION 25(1B)(a) OF THE INDIAN ARMS ACT, 1959 AGAINST A.1 TO A.3 AND A.5 TO A.11:
50. Under Section 25(1B)(a) of the Indian Arms Act, 1959 whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 of the Act, is punishable.
'Firearm' as defined under Section 2(1)(e) of the Indian Arms Act, 1959 is as follows:
Arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes
(i)artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such thing.
(ii)accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof.
(iii)parts of, and machinery for manufacturing, firearms, and
(iv)carriages, platforms and appliances for mounting, transporting and serving artillery.
'Ammunition' as defined under Section 2(1)(b) of the Indian Arms Act, 1959 is as follows:
Ammunition for any firearm, and includes-
(i) rockets, bombs, grenades, shells and other missiles.
(ii) articles designed for torpedo service and submarine mining,
(iii) other articles containing or designed or adapted to contain, explosive, fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,
(iv) charges for firearms and accessories for such charges,
(v) fuses and friction tubes,
(vi) parts of, and machinery for manufacturing, ammunition, and
(vii) such ingredients or ammunition as the Central Government may, by notification in the official Gazette, specify in this behalf.
51. Under Section 3 of the Act, 1959, no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
In view of the definition under Section 2(1)(b) of the Act, 1959, explosive article is also ammunition. Rockets, bombs, grenades also include in the definition of ammunition. Admittedly, none of the accused was having any licence to have possession of the firearm or ammunition. Mere possession of those firearm or ammunition without licence, itself is an offence punishable under Section 25(1B)(a) of the Indian Arms Act, 1959. M.O.11-pistol and M.O.12-(7) rimless material cartridges were seized from A.1. Similarly, as seen from the evidence of P.Ws. 73 and 74, certain explosive substances were seized from A.2, A.3, A.5 and A.6. Except from A.1 to A.3, A.5, A.6, no firearm or ammunition was seized from the possession of A.7 to A.11. Therefore, the conviction of A.1 to A.3, A.5 and A.6 for the offence punishable under Section 25(1B)(a) of the Indian Arms Act, 1959 is confirmed, whereas conviction and sentence of A.7 to A.11 for the offence punishable under Section 25(1B)(a) of the Indian Arms Act, 1959 are liable to be set aside.
CRIMINAL CONSPIRACY:
52. Charge for the offence under Section 120B I.P.C. is framed against A.I to A.3 and A.5 to A11. Under Section 120B I.P.C, whoever is a party to a criminal conspiracy to commit an offence, is punishable. Section 120A I.P.C. defines 'Criminal Conspiracy', which reads as follows:
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.
Criminal conspiracy consists not merely in the intention of two or more persons, but in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. The agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of agreement. The offence of criminal conspiracy under Section 120A I.P.C. is a distinct offence.
53. On this aspect, the learned Public Prosecutor placed strong reliance on the decision in Kehar Singh and Ors. v. The State (Delhi Admn.) wherein it is held as follows: (para 272) Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient....
So, from the aforesaid decision, it is clear that the evidence of transmission of thoughts sharing unlawful design may be sufficient to prove criminal conspiracy.
54. On the other hand, Mr. M. Narasimha Reddy, learned Counsel for A.1, A.5, A.9 and A.10 relied on a decision in Damodar and Ors. v. State of Rajasthan 2004(1) ALT (Crl.) 53 (SC). Having referred to the decision of three Judge Bench of the Apex Court in Kehar Singh's case (supra), the Bench of Apex Court consisting of two Judges held as follows: (para 14) It was noticed that Sections 120A and 120B IPC have brought the law of conspiracy in India in line with English law by making an overt act inessential, when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continue to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators done an act or series of acts, he would be held guilty under Section 120B of the Indian Penal Code.
Therefore, in the above decision, it is held that evidence of transmission of thoughts sharing unlawful act is not sufficient.
55. Bearing the above principles as enunciated in Kehar Singh's case (supra) in mind, it has to be seen whether there is criminal conspiracy among the accused persons and whether Section 10 of the Indian Evidence Act, 1872 comes to the aid of prosecution. Under Section 10 of the Act, it is necessary that a prima facie case of conspiracy has to be established for application.
On this aspect, the learned Public Prosecutor placed reliance on Kehar Singh's case (supra), wherein it is held as follows:
This Section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided "When two or more persons agree to do, or cause to be done." This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused, could be used as evidence against the other....
So, from the above, it is clear that there are two parts in Section 10 of the Evidence Act, 1872. In the first instance, a prima facie case of conspiracy has to be established. The second part permits the use of evidence which otherwise could not be used against the accused person. Therefore, it is clear that the evidence of action or statement made by one of the accused person could be used as evidence against the other in case a prima facie conspiracy in the first instance is established.
56. In the case on hand, P.W.72 is the Magistrate who recorded confessional statement of A.1 under Ex.P91; confessional statement of A.7 under Ex.P97; and confessional statement of A.6 under Ex.P111. The said statements were recorded in Marathi. They were translated by P.W.63 into English, who stated that Ex.P88 is the English translation of Ex.P87, Ex.P90 is English translation of Ex.P89, Ex.P92 is the English translation of Ex.P91, Ex.P94 is English translation of Ex.P93, Ex.P96 is English translation of Ex.P95, Ex.P98 is English translation of Ex.P97, Ex.P100 is English translation of Ex.P99, Ex.P102 is English translation of Ex.P101, Ex.P104 is English translation of Ex.P103, Ex.P106 is English translation of Ex.P105 and Ex.P108 is English translation of Ex.P107.
Except suggesting that his translation is not correct, nothing has been elicited to discredit his testimony. The accused have not shown how the translation made by P.W.68 of the documents which were in Marati, into English, is not true translation of the documents into English. As seen from these documents, in the first instance, P.W.72 put preliminary questions and also he gave time of 24 hours for reflection. He also warned the accused that there was no compulsion to give the statements. The question is put to the accused whether police or anyone else gave threat or inducement to give the confessional statement for which the accused stated 'no'.
57. The confessional statement of A.I, which is translated as in Ex.P92, reads as follows:
I, Syed Mukhtar Ahmed @ Shafiq, s/o Syed Jaffar Ahmed , age 20 years, Occ: Student R/o Tadban, Hyd. Naseer Moulana introduced me to Azam Ghori. Azam Ghori told me to kill Manikprabhu, owner of Prabhu Medical Hall. On 25th November, Maqbool and I went on scooter, Maqbool shot at Manikprabhu, then both of us ran away on scooter.
On the last Friday of Ramzam we were making bombs in Maqbool's room in Hydeabad. Then the bomb exploded accidentally. Then we both of us sustained injuries.
On 19th January Maqbool took me to Aurangabad. There Azam Ghori gave us some time bombs in a tiffin and asked us to install the same in the threatre where blue films are being screened. I installed a bomb in Sudha Talkies, Secunderabad but the same did not explode. I read the same in the news papers. After that on 7th February Azam Ghori gave me and Roshan a bomb to explode the same in Metpalli. We installed the same in Venkatesh theatre and exploded it.
On 7th February I along with Azam Ghori, Maqbool, Wahab, Roshan Baig prepared a pipe bomb in Khasim Baig's house at Mhaisa. On 19th February myself and Wahab came to Nanded, along with Azam Ghori, Maqbool. In the evening we planted bomb in Sharada Talkies, Nanded. Abdul Wahab was standing outside. On 6l1 of April I shot at Mahaveer Modi, owner of Mahalakshmi Jewellers, Hyderabad and ran away on the scooter of Mujahid.
On 7th April, there appear in the newspapers the news of assassination of Modi and death of Azam Ghori in an encounter. I sent the news of encounter to Ameenuddin by E.Mail. Later Police caught me and brought me to Nanded from Hyd'bad. I confessed to the Police, took them to the E-Mail center, opened my E-Mail box Shafiq.22.yahoo.com with the pass word Amanath, took the print out of the messages received and handed over to the police.
On 26th May Police took me to Jagtial and went to jagdish Reddy's E-Mail center and asked me to take out the print out of E-Mails sent by Azam Ghori and myself. By taking the pass word police seized the messages that we have received on 26th 29th march. On 30th May Police shoed a letter which had given from the news paper Deccam daily, police asked me to write separately on a piece of paper, I wrote and gave it to them. On 2-6-2000 police at my instance gave me the material required for preparing the bomb in the presence of witnesses I prepared bomb as was prepared for installing in Sharada Talkies. In place of detonator, we have used a pipe in that bomb. On 3-6-2000 the police at my instance took me to the Gateway Computes owned by Anwar, from there I downloaded 3 websites i.e. Laskar-e-Toiba, Chechenya and Jerusalem.
A perusal of the above confessional statement would go to show that there is conspiracy for doing an illegal act by illegal means with one Azam Ghori. A.1 along with Azam Ghori, Maqbool, Wahab and Roshan Baig prepared a time bomb in Khasim Baig's house at Maisa and thereafter they planted a bomb in Sarada Talkies, Nanded. So, in this document, there is no conspiracy among the accused with regard to killing of the deceased Mahaveer Modi. 58. Ex.P98 is the English translation copy of confessional statement of A.7, which reads as follows:
I am Syed Maqbook @ Zubair @ Shanawaz, S/o Haji Miyan, age 20 yrs.,, R/o. Ramnagar, Dharmabad. I studied up to 7th class. I run a bakery and sell fruits. I met Azam Ghori at Korutla. He told me to work against blue films, and dowry system and for Islam, and I liked it. I promised him to work with him for the sake of the religion. Later I was enrolled in the work of the organization. I started collecting money in the form of donation for religion. We used to go to Hyderabad and distribute pamplets containing religious matters and return to Dharmabad. At the same time, myself and my associates used to steal electrical wires. My associates were caught and I absconded.
When I was in Nizamabad I met Azam Ghori. He introduced me to his friends. We chalked out a plan in Ulfat Masjid to kill the owner of the tyre dealer of Bodhan. When at 10.30 pm the Tyre trader was going on foot after closing his shop, carrying money bag along with his servant, Feroz shot at him and handed over the money bag to Azam Ghori.
After that in 1999 myself and Azam Ghori went to Aurangabad go participate in the SIM conference. On the way, we got down at Nanded, Azam Ghori asked me to wait in a Masjid near Habib Talkies and went to meet his friends. After his return, we started to Aurangabad. In the said conference, we met Khasim Baig, Basheer Zia, Naseer Moulana, Mukhtar. Moulana Naseer introduced me to Mukhtar @ Shafiq in Hyderabad, then we together went to meet Azam Ghori. Azam Ghori told both of us to kill the owner of Manikprabhu Medical Hall. We went to Saidabad, I shot the owner of the medical hall and ran away on the scooter driven by Shafiq. Azam Ghori was pleased with this work. He asked me to rent a room in Hyderabad and work. The rented room was in Tadban. In that room we used to prepare bombs. Afterwards, I along with Abdul Wasay exploded a bomb in Kakatiya Hotel.
In January, 2000 when Shafiq and myself were preparing bombs, a bomb exploded and we sustained injuries. After that Shafiq and I went to Aurangabad to meet Azam Ghori. He asked us to locate the theatre where blue films are being screened. Then myself and Shafiq and Roshan Baig exploded bombs in Sudha and Venkatesh theatres.
On 17th February, Azam Ghori, Abdul Wahab, Shafiq and Roshan Baig met at the house of Khasim Baig at Bhainsa and prepared a bomb. Azam Ghori, Abdul Wahab and Shafiq brought the same to Aram Lodge, Nanded. Abdul and Shafiq planted the bomb in Sharada Talkies at Nanded and after that they all returned to Bhainsa.
After that on 7th April, I learnt that Azam Ghori was killed in an encounter. On 8-4-2000 Police searched the house of brother Jaleel. There they found country made revolver. Police arrested by brother. I ran away to Thanur. The country made revolver found in my brother's house was seized.
The items i.e. Revolver of Wabley make with 4 rounds, and tow rounds of country made revolver, audio cassette of Azhar Masood, bulletin of SIM which were placed in a gunny bag buried in the backyard of my sister's house at Thanur was seized by Dharmabad Police on 20-4-2000 and later they handed over to Nanded Police on 27-4-2000.
On 4-5-2000 Police came to Thanur and seized all these things at my instance.
The above statement reveals the illegal acts of A.7 along with some other accused with regard to killing of one Manikprabhu, killing of a tyre dealder at Bodhan and planting of bombs in Sudha and Venkatesh theatres which exploded, and also planting of bomb at Sharada talkies at Nanded. Therefore, this document also does not indicate about the criminal conspiracy of A.7 with the other accused so as to eliminate the Mahaveer Modi.
59. Ex.P104 is the English translation of confessional statement of A.6, which reads as follows:
In the year 1997, I met Azam Ghori before my marriage. He used to come here for business. He gave me medicine. I became a very good friend of him. Thereafter he disappeared for 7 to 8 months. After his return when I asked him, he said "I went to Pakistan and Soudi Arabia. There I met the persons of ISI and Laxur-El-Toiba. I learned how to use weapons and how to prepare bombs.
Azam Ghori did not had two fingers on his right hand. He knew Saleem, Navid, Ashfak, Rasheed, A. Sattar, Mansoor Khatik, Makdum. On Azam Ghori's request I brought money from Hyderabad three to four times. Shafik, Makbul, Roshan, Afsar, Mateen, all are Azam Ghori's associates. They are all IMMM's members. These people caused four bomb explosions in Hyderabad. They murdered Manik Prabhu in Hyderabad and Tirewala in Bodhan.
On 17/2/2000 Azam Ghori, Shafi, Makbul, Roshan, Wahed came to my house and prepared bomb in my house to install at Sharada Talkies. I also helped in preparing bomb on 19-2-2000, in the morning they went to Nanded to install bomb at Sharada Talkies. That day they put bomb there and returned to Maisa. I read in the paper that (6) Six persons injured in the bomb explosion at Sharada Talkies.
Azam Ghori asked us to kill Mahavir Modi owner of Mahalaxmi Jewellers. We went to Hyderabad and murdered Mahavir Modi. At that time, Shafik fired bullet on Mahavir Modi, we were all with him. On that day itself dt.6/4/2000 Azam Ghori was killed in encounter at Maisa. Navid, Saleem Ashraf, Rasheed, Abdul Sattar and Mansur Khatik, all R/o. Dharmabad, knew about the bomb installed in Sharada Theatre. Azam Ghori told me these things in my house.
A perusal of the above confessional statement shows that they put a bomb in Sharada talkies, Nanded and that Shafik, Makbul, Roshan, Afsar, Mateen, all are Azam Ghori's associates and they are all IMMM's members. As far as this case is concerned, it is stated that Azam Ghori asked them to kill Mahaveer Modi, owner of Mahalakshmi Jewellers and at that time, Shafik fired bullet at Modi and they were all with him. This confessional statement at best would go to show that A.6 had a conspiracy with A.1 so as to eliminate the deceased. Several instances have been stated in the confessional statement, but he has not specifically stated who are the accused present when Azam Ghori asked them to kill the deceased in this case. This document is also silent with regard to presence of all accused at the time of the incident. In respect of other illegal acts as mentioned in the confessional statements, they are the accused in those cases.
60. Coming to oral evidence adduced by the prosecution, P.Ws.5, 9 to 11, 16, 25, 29, 35, 37, 40, 43, 46, 51 to 53 did not support the case of prosecution. P.Ws.17 to 22 are the owners of STD booths in Jagtial. Their evidence would go to show that some persons made telephone calls to cell No. 9848094817, which belongs to A.1. P.W.22 speaks about call details made to the said number. The evidence of P.W.28 would to show that A.3 sent P.Ws.22 to 25-E.Mails whereas P.W.29 stated that one Azam Ghori sent fax messages and A.1 and A.3 used to come along with Azam Ghori. Similarly, the evidence of P.W.34 would go to show that one person used to call to cell No. 9848094817, whereas the evidence of P.Ws. 44 to 47, who are owners of telephone booths at various places in Hyderabad, would go to show that A.11 made call to cell No. 9848094817. Similarly, P.W.50 stated that A.11 made telephone call from his booth at Towlichowk. The evidence of P.Ws. 14 and 15 would go to show that A.5 purchased silver powder. Similarly, the evidence of P.Ws. 6 and 7 would go to show that A.1 used to send fax messages and also using internet. P.W.3 treated A.1 when he sustained injury in a bomb explosion. Similarly, the evidence of P.W.24 would go to show that A.1 purchased potassium permanganate from his medical hall at Sultan Bazar, Hyderabad. P.Ws. 14 and 15 stated that A.4 purchased silver powder from their shops.
61. Mere making of telephone calls to cell No. 9848094817 by some of the accused does not by itself is a circumstance to infer that there is a criminal conspiracy. Though P.W.6 stated that A.1 was sending fax messages from his booth, copies of those fax messages sent by A.1 were not made available. Similarly, the evidence of P.W.7 would go to show that A.1 was using internet service in his Internet cafe. For what purpose A.1 was using internet is not known. With regard to sending Exs.P22 to 25-E.Mails by A.3, they do not indicate about the conspiracy to kill deceased Mahaveer Prasad Modi. So, these documents do not prove conspiracy among the accused. Therefore, from the above evidence, making telephone calls to cell No. 9848094817, which is telephone number of A.1, by some of the accused or sending E.Mails by Azam Ghori or by A.3, is not sufficient to infer criminal conspiracy among the accused with regard to doing of an illegal act, or an act, which is not illegal, by illegal means. At best, the evidence would go to show that A.1 was sending fax messages and he was also receiving fax messages. It is A.1, who used to download E.Mails. No doubt, Ex.P20, which is telephone call details produced by P.W.23, shows that A.5 and A.9 used to call to cell number of A. 1. But, that does not lead to an inference that there was a conspiracy. But, in view of the confessional statements of A.6 and A.7 in Exs.104 and 98 respectively, they knew about killing of deceased Mahaveer Prasad Modi by A. 1 and therefore it can be said that A.1, A.6 and A.7 can be said to be members of criminal conspiracy. Unless they were members of the conspiracy, they would not know about killing of the deceased. Hence, A.1, A.6 and A.7 are liable for the charge under Section 120B I.P.C. In the absence of any evidence, A.2, A.3, A.5, A.8 to A.11 can not be said to the parties to the criminal conspiracy and therefore their conviction and sentence for the offence under Section 120B I.P.C. are liable to be set aside.
62. With regard to sanction order, P.W.49 is the Administrative Officer in Collectorate office, Hydeabad, who is authorized to depose on behalf of Collector as per Ex.P52-proceedings. Ex.P53 is the sanction order issued by the Collector for prosecuting the accused for the offences under Sections 3, 4, 5 and 6 of the Explosive Substances Act. Except suggesting that Ex.P53 is a mechanical order, nothing has been elicited to discredit his testimony or the sanction order.
Similarly, P.W.59 is the then Junior Administrative Officer of office of the Commissioner of Police, Hyderabad, who stated that the Commissioner of Police, after satisfying himself, accorded Ex.P68-sanction to prosecute the accused for the offences under Sections 25, 27 and 35 of the Indian Arms Act. He stated that Mr. K. Aravinda Rao, who was the Additional Commissioner of Police, holding full additional charge of the post of the Commissioner of Police, accorded the sanction. Except suggesting that the sanctioning authority did not go through the record properly, nothing has been elicited to disbelieve the same.
63. It is one of the contentions of learned Counsel Mr. M. Narasimha Reddy that the evidence of prosecution witnesses show that only one shot was fired from the gun whereas police seized two empty cartridges from the scene of offence and hence, the version of the prosecution has to be disbelieved. As seen from the evidence of P.W.69, he seized one empty cartridge which was found near sofa. Therefore, from his evidence only a spent bullet and empty cartridge were seized. So, there is no inconsistency with regard to seizure of the cartridges.
64. The other contention of learned Counsel Mr. M. Narasimha Reddy is that no sanction as required under Section 196(2) Cr.P.C. is obtained by the prosecution. Section 196(2) Cr.P.C. reads as follows:
No Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.
In this case, the criminal conspiracy is commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. Therefore the said provision has no application the facts of the present case.
65. From the foregoing discussion, it is clear that the prosecution is able to bring home the guilt of the appellants/accused as under:
l)for the offence under Section 120B I.P.C. against A.1, A.6 and A.7;
2)for the offence under Section 302 I.P.C. against A.1;
3)for the offence under Section 5 of the Explosive Substances Act, 1908 against A.2, A.3, A.5 and A.6;
4)for the offence punishable under Section 25(1B) (a) of the Indian Arms Act, 1959 against A.1 to A.3, A.5 and A.6.
66. In the result, the conviction and sentence recorded by the trial Court (i) for the offence under Section 120B I.P.C. against A.1, A.6 and A.7; (ii)for the offence under Section 302 I.P.C. against A.1; (iii)for the offence under Section 5 of the Explosive Substances Act, 1908 against A.2, A.3, A.5 and A.6; and (iv) for the offence punishable under Section 25(1B) (a) of the Indian Arms Act, 1959 against A.1 to A.3, A.5 and A.6, are confirmed. The other convictions and sentences recorded against the appellants/accused are set aside and they are acquitted of the same. Accordingly, the Criminal Appeal Nos. 1589 of 2004 and 1821 of 2004 are partly allowed, and Criminal Appeal No. 1903 of 2004 is allowed.