Gujarat High Court
Jahid Kutbuddin Shaikh(A-1) vs State Of Gujarat on 14 September, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.RA/1225/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1225 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JAHID KUTBUDDIN SHAIKH(A-1)
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, ADVOCATE FOR MR MHM SHAIKH(2007) for the
PETITIONER(s) No. 1,2,3,4,5,6,7,8
MR MITESH AMIN, PUBLIC PROSECUTOR(2) assisted by MR LB DABHI,
APP for the RESPONDENT(s) No. 1
MR RUTURAJ NANAVATI(5624) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/09/2018
ORAL JUDGMENT
1. Rule. Mr.Mitesh Amin, learned Public Prosecutor waives service of notice of rule on Page 1 of 56 R/CR.RA/1225/2017 JUDGMENT behalf of the respondent No.1 State and Mr.Ruturaj Nanavati, learned advocate waives service of notice of rule on behalf of the respondent No.2.
2. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
3. The present Criminal Revision Application has been filed by the petitioners - original accused under section 397 read with section 401 of the Code of Criminal Procedure 1973 ("the Code" for short) challenging the order dated 15.12.2017 passed by learned Designated Judge, Special Court for Bomb Blast Trial Cases at Ahmedabad below Exh.6695 in Sessions Case No.38 of 2009 whereby the application Exh.6695 came to be rejected.
4. The factual background of the case as has been set out in the present revision application are that on 26.7.2008, serial bomb blasts have taken place in Ahmedabad city and some incidents of bomb plantation took place at Surat city. Therefore, about 20 FIRs were registered at Ahmedabad and 15 FIRs were registered at Surat for the offences punishable under sections 120-B, 122, 121, 302, 307, 427 of Indian Penal Code and section 3 of the Explosive Substance Act etc., at different Police Stations.
Page 2 of 56R/CR.RA/1225/2017 JUDGMENT On 12.11.2008, the investigating agency of the aforesaid crime has submitted the chargesheet against 94 accused persons (including absconding accused) for the offences punishable under sections 120-B, 121-A, 124-A, 153-A(1)(b), 302, 307, 326, 435, 427, 465, 468, 471 of IPC and sections 3, 5, 6 and 7 of the Explosive Substance Act 1908 and sections 10, 13, 16, 18, 19, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act 1967 and under sections 25(1)(B)(A) and 27 of the Arms Act 1959, sections 65, 66 of the Information Technology Act, 2000 and sections 3 and 4 of the Damage to the Public Property Act. Thereafter, on different dates, several supplementary chargesheets were submitted by the investigating agency pursuant to aforesaid crime, till date about 80 accused persons are booked by the investigating agency belong to different parts of State of India. That the present petitioners are also arrested by the investigating agency on different dates and they are in judicial custody since last more than 9 years.
5. Therefore, it is clear that the petitioners, who are the accused facing trial in well known serial bomb blast case of State of Gujarat, have tendered the application below Exh.6695 in Sessions Case No.38 of 2009 during the course of trial, under section 319 of the Code for arraigning secret witness No.957 as Page 3 of 56 R/CR.RA/1225/2017 JUDGMENT accused on the strength of his police statement, statement before the Magistrate under section 164 of the Code, his examination-in-chief recorded by the learned trial Court as well as other material available on record.
6. The above referred application below Exh.6695 in Sessions Case No.38 of 2009 has been dismissed by learned trial Court vide order dated 15.12.2017.
7. Being aggrieved by the said order dated 15.12.2017, invoking the provisions of section 397 read with section 401 of the Code, the present petitioners, inter alia, contended that secret witness was attending secret meeting with the accused who are put to trial and he was in the knowledge of the conspiracy alleged to have been hatched by the accused who are facing trial and also he was regularly attending the meeting and in the said meeting, there was talk as regards to loss occurred to Muslim community during riot took place in 2002 and in retaliation thereof and for taking revenge against the State as well as particular community, they were discussing at large and therefore, secret witness who has deposed was in the knowledge of all these affairs and therefore, he has also become one of the co-conspirator. It is further contended that even subsequent to series bomb blast took place in Ahmedabad city and several bombs came to be Page 4 of 56 R/CR.RA/1225/2017 JUDGMENT planted at Surat were also in the knowledge of secret witness and he did not inform to any police regarding such incident and hence, he is required to be arraigned as accused invoking the provisions of section 319 of the Code read with other provisions of law.
8. This Court has heard Mr.I.H.Syed, learned advocate for the petitioners and Mr.Mitesh Amin, learned Public Prosecutor for the respondent State and Mr.Ruturaj Nanavati, learned advocate for private respondent No.2.
9. Mr.I.H.Syed, learned advocate for the petitioners submitted that in the celebrated decision of the Apex Court in the case of Hardeep Singh Vs State of Punjab and others, reported in (2014) 3 SCC 92, several issues as regards as to when and how and at what stage, such application can be tendered under section 319 of the Code came to be considered and relevant observations of the Apex Court are in paragraphs 117 and 118 of the said judgment. Mr.Syed also argued that statement has been given by secret witness before the police as well as before the Magistrate and upon reading of the said deposition in examination-in-chief, it is clear indicative of deep rooted conspiracy along with the accused who are put to trial and that fact is clearly emerging out as per his argument from his previous statement as well as from his Page 5 of 56 R/CR.RA/1225/2017 JUDGMENT deposition. In support of his submission, Mr.Syed has put reliance on the celebrated decision in the case of State of Maharashtra Vs Som Nath Thappa and others, reported in (1996) 4 SCC 659. Paragraph 24 of the said decision reads as under.
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
10. The bone of contention of Mr.Syed, Page 6 of 56 R/CR.RA/1225/2017 JUDGMENT learned advocate for the petitioners is clearly emerging out that if the present witness sought to be arraigned as accused in the present proceedings was attending meetings along with the accused who are put to trial and subsequent to the incident in question also, he was in contact with the accused and therefore, upon reading his statement as well as deposition, he is required to be arraigned as accused and he is required to be put to face the trial, as such.
11. On the other hand, learned Public Prosecutor Mr.Mitesh Amin submitted that the present witness was already cited as secret witness and the statements were already provided in the year 2008. This application is made belatedly after about 10 years. The trial commenced in the year 2009 and for about 1072 witnesses out of 2600 witnesses have been examined and the accused are the under-trial prisoners languishing in jail since for about a decade. He also submitted that there appears no evidence either from the examination-in-chief or from his statement before the police or even before the executive magistrate under Section 164 so as to arrive at a finding that he appears to have committed any offence. Mr.Amin submitted that from his deposition, it is emerging out that every time, there were talks as regards ill- design as well as talks regarding committing Page 7 of 56 R/CR.RA/1225/2017 JUDGMENT illegal activities, but he never consented or have agreed to act in accordance with the design purported to have been declared by the accused. Mr.Amin further submitted that merely based on knowledge by itself could not impute that he becomes a member of criminal conspiracy and the decision relied upon by Mr.Syed in the case of State of Maharashtra and others Vs Som Nath Thapa and others (supra) would not be applicable in view of ratio laid down thereon.
12. Learned Public Prosecutor submitted that in view of ratio laid down in the celebrated decision in case of R.Dineshkumar Alias Deena Vs State Represented by Inspector of Police and others, reported in (2015) 7 SCC 497 even though there was a criminal conspiracy and he also accepted sopari to commit murder of somebody, but subsequently he could not make out to be a perpetrator of crime, but he got done through another person and that fact is stated and deposed before the trial court, though the Supreme Court, while interpreting proviso to Section 132 of the Indian Evidence Act, granted protection even in such a case. Paragraphs 4, 6, 7, 11, 14, 17, 18, 44 and 45 of the said case read as under.
"4. The factual background in which application under section 319 of the Page 8 of 56 R/CR.RA/1225/2017 JUDGMENT Code of Criminal Procedure (for short "CrPC") came to be filed by the appellant herein is as follows: some three months after the death of Vijayan the second respondent herein L. Venkatesh (who was examined as PW 64 and for the sake of convenience hereinafter referred to as "PW 64") was examined by the police on 11-9-2008 and his statement under section 161 CrPC was recorded. Subsequently, on 26-9-2008, his statement was recorded under section 164 CrPC by the learned Metropolitan Magistrate, George Town, Chennai. Finally, the second respondent was examined as PW 64 in the trial of the abovementioned case. The tenor of all the three statements of PW 64 is said to be broadly consistent. (We say so because we have not scrutinized the statements nor do we wish to scrutinize the same and record any conclusion as the trial of the criminal case is still pending and it would be inappropriate to record any definite finding at this stage of any matter connected with the said case.) The translated copies of all the three statements of PW 64 are place on record. The substance of the Page 9 of 56 R/CR.RA/1225/2017 JUDGMENT statements is that sometime in November 2007, one Karuna, A-2 had offered to pay PW 64 an amount of Rs. 5 lakhs if PW 64 killed Vijayan. PW 64 accepted the proposal. Thereafter, PW 64 contacted A- 3 and disclosed the proposal whereupon A-3 agreed to join PW 64. A-3 was paid an amount of Rs. 10,000 by PW 64. However, subsequently, PW 64 developed cold feet and started maintaining a distance from A-2 Karuna. But according to PW 64, A-2 and A-3 were in contact with each other. After coming to know about the murder of Vijayan through newspaper, PW 64 contacted A-3 and inquired about the matter upon which A-3 informed PW 64 that A-3 along with three other named persons had murdered Vijayan and collected an amount of Rs. 4 lakhs form A-2. A-3 further threatened PW 64 that he would be "finished" if he revealed the information to anybody.
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6. In substance the High Court held that PW 64 cannot be prosecuted by summoning him as an additional accused under section 319 CrPC in Sessions Case No.73 of 2009 on the basis of his evidence in Page 10 of 56 R/CR.RA/1225/2017 JUDGMENT the said Sessions Case as the proviso to section 132 if the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") creates an embargo upon such a course of action. However, the High Court held that PW 64 could be separately prosecuted for an offence under section 120-B of the Penal Code, 1860 (hereinafter referred to as "IPC") read with section 302 IPC if independent evidence other than the statement under section 164 CrPC of PW 64 and his evidence in Sessions Case No.73 of 2009 are available to prosecute him along with A-2 and A-3.
7. In our opinion, the second conclusion recorded by the High Court contained in para 64 extracted above, is really uncalled for in the context of the issue before the High Court. The question before the High Court was whether the Sessions Court was justified in declining to summon PW 64 in exercise of its authority under section 319 CrPC as an additional accused in Sessions Case No.73 of 2009. We, therefore, will examine only the question whether on the facts mentioned earlier the Sessions Page 11 of 56 R/CR.RA/1225/2017 JUDGMENT Court is obliged to summon PW 64 as an additional accused exercising the power under section 319 CrPC.
xxx xxx xxx
11. It is admitted on all hands that except the evidence of PW 64 and his statement under section 164 CrPC there is no other evidence on record of the Sessions Court to indicate that PW 64 has committed any offence. Both the evidence and the statement under section 164 CrPC of PW 64 prima facie indicate a conspiracy to kill Vijayan to which conspiracy PW 64 was a party at least at the initial stage. According to PW 64, he developed cold feet after the initial stage and withdrew from the conspiracy and did not participate in the actual killing of Vijayan. Whether his assertions in this regard are true and, if true, would they legally absolve him of guilt are questions with which we are not concerned for the purpose of this case. We only take note of the evidence on record as it exists to indicate that as of today there is no evidence to prosecute PW 64 for any offence other than the one punishable under section Page 12 of 56 R/CR.RA/1225/2017 JUDGMENT 120-B IPC.
xxx xxx xxx
14. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, this Court after analyzing the history of the offence of conspiracy held as follows: 88. Earlier to the introduction of Sections 120-A and 120- B, conspiracy per se was not an offence under the Penal Code except in respect of the offence mentioned in Section 121- A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 IPC. The punishment therefor is provided under various sections viz. Sections 108 to 117. Whereas under
Section 120-A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 requires the commission of some act or illegal omission pursuant to the conspiracy. A charge under Sections 107/109 should therefore be in combination with a substantive offence, whereas the charge under Sections 120-A/120-B could be an independent charge.Page 13 of 56
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89. In the Statement of Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A and 120-B) were "designed to assimilate the provisions of the Penal Code to those of the English Law....". Thus, Sections 120-A and 120-B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Russell on Crimes, the House of Lords decision in Quinn v. Leathem and the address of Willes, J. to the Jury in Mulcahy v. R. are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J. in Kehar Singh case (SCC at p. 731, para 271) is quite apposite:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties.Page 14 of 56
R/CR.RA/1225/2017 JUDGMENT Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."
This passage brings out the legal position succinctly."
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17. That leads us to a further question whether the offence said to have been committed by PW64 and the offence for which the appellant and other accused in Sessions Case No.73 of 2009 are being tried were "committed in the course of the same transaction". The High Court examined this question and came to the conclusion that there were three different conspiracies; (i) between A-2 and PW64, (ii) between PW64 and A-3,
(iii) between A-2 and A-3 to A-7 and recorded a conclusion; "Therefore, I hold that the conspiracies committed by A2 and the 2nd respondent/P.W. 64 and the conspiracy between the 2nd respondent/P.W. 64 and A3 have got nothing to do with the subsequent conspiracy hatched between A2, A3 and the rest of the accused."
18. After such a conclusion, the High Court placing reliance on Balbir v.
Page 15 of 56R/CR.RA/1225/2017 JUDGMENT State of Haryana & Another (2000) 1 SCC 285 and another judgment of the Gauhati High Court in M.L. Sharma & Others v. Central Bureau of Investigation 2008 Crl. L.J. 1725 reached the conclusion that PW64 could not be tried together with the other accused already facing trial in Sessions Case No. 73 of 2009, as the said three conspiracies "do not form part of the same transaction"[4].
xxx xxx xxx
44. The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.
45. In the light of our above discussion, we are of the opinion the High Court rightly refused to summon PW64 as an accused to be tried alongwith the appellant and others."
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13. Learned advocate Mr.Ruturaj Nanavaty appearing for the private respondent adopted the arguments advanced by learned Public Prosecutor and further stated that he acted merely as witness and never agreed or entered into any criminal conspiracy with other accused.
14. In order to appreciate the contentions raised by the parties to the proceedings, this Court deems it appropriate to reproduce the application tendered by the present petitioners before learned trial Court which is at Exh.6695 which has been recorded in vernacular language Gujarati which came to be translated through the Translation Department of this Court which reads as under.
"In the Sessions Court of Special Designated Judge for the Trial Cases of Bomb Blast, Ahmedabad.
Sessions Case no. 38/2009 and Other Exhibit - 6695 Complainant : The State Versus Accused Persons : Jahid Kuttubuddin Shaikh and Others.
Application u/s. 319 of Cr.P.C.Page 17 of 56
R/CR.RA/1225/2017 JUDGMENT We - the accused persons in this case pray that ;
1. The examination-in-chief of the witness Jakirhussain Abdul Zabbar Kureshi has been completed today vide exhibit -
6687.
2. Looking to the deposition of this witness and the statement before the Learned Metropolitan Magistrate, it is clearly found that this witness has also committed the same and other offences about which the allegation are there against the other accused persons and the trial could also be conducted against him along with the other accused persons.
3. Looking to the deposition of this witness, he has also willingly colluded with them like other accused persons, and colluded directly/indirectly in the alleged offences. The copy of the deposition of the witness, the police Page 18 of 56 R/CR.RA/1225/2017 JUDGMENT statement and the statement before the learned Magistrate is produced herewith.
4. It is necessary in the interest of justice that the Hon'ble Court should conduct the trial against the witness for those offences as per the aforesaid facts.
5. Hence, it is necessary that the Hon'ble Court arrest the witness to conduct the trial against him. Thus, it is requested to pass appropriate order u/s. 319 of Cr.P.C.
Ahmedabad Sd/- illegible"
Dt. 13-12-2017
15. Deposition of secret witness which has been recorded in vernacular language Gujarati which came to be translated through the Translation Department of this Court which reads as under.
"Sessions Case No. 38 of 2009 (Main) Sessions Case nos. 61/2009, 82/2009, 95/2009, 300/2009, 319/2009, 321/2009, 321/2009, 323/2009, 334/2009, 339/2009, 341/2009, 342/2009, 344/2009, 346/2009, Page 19 of 56 R/CR.RA/1225/2017 JUDGMENT 347/2009, 348/2009, 361/2009, 362/2009, 364/2009, 365/2009, 412/2009, 418/2009, 438/2009, 443/2009, 448/2009, 453/2009, 458/2009, 463/2009, 468/2009, 476/2009, 481/2009, 488/2009, 500/2009, 504/2009, 509/2009, 22/2014 to 36/2014, 38/2014 to 57/2014 Deposition of Prosecution Witness no.957
Exhibit - 6687 I do hereby state on solemn affirmation that :-
My Name : Zakirhussain
Father's Name : Abdul Zabbar Kureshi
Age about : 33 Years
Occupation : Furniture Work
Residing at : Juhapura, Ahmedabad.
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Examination-in-Chief By The Ld. Spl. Assistant P.P. Mr. Amit Patel for the State Oath Administered (1) At present I am residing at Juhapura, Ahmedabad. Before I went to reside in Juhapura, I was residing in the Chawl of Noorbhai Dhobi, Opposite to Amrapali Cinema in Gomtipur. The number of my house was 302 in the Chawl of Noorbhai Dhobi. My father had sold this Page 20 of 56 R/CR.RA/1225/2017 JUDGMENT house. I resided for 15 to 20 years in the Chawl of Noorbhai Dhobi. I was residing in Juhapura in the year 2008. I went to stay in Juhapura prior to one month when the police recorded my statement. My father was doing Carpentry work with the name "Royal Furniture".
He was working at Danilimda, Ahmedabad. I have studied up to 12th Class pass in Commerce. We are total 5 siblings. I was knowing Firoz at the time when I was residing in Chawl of Dhobi. This Firoz was residing just near the house of main gate in the Chawl of Dhobi. Firoz was my childhood friend. Firoz and I used to play cricket together. Firoz was doing the work of embroidery. He was doing the embroidery work in the Body Line at C.G. Road. Abdul Razik was also working with Firoz in Body Line at that time. Firoz had introduced this Abdul Razik with me. This Abdul Razik was residing in Al-Aman Flat, Rajpur Toll Booth at Gomtipur. After I had been introduced with Abdul Razak, whenever he used to come to meet Firoz he also used to meet me.
Thereafter, I had friendship with him. After having friendship we both were visiting the houses of each other.
Page 21 of 56R/CR.RA/1225/2017 JUDGMENT (2) Thereafter, Abdul Rajik had telephoned me on my mobile in the November month of the year 2007 and told me that "I and Firoj are leaving from C.G. Road and you come at Kamdar Medan. There is a program of 'Dars-E-Quran', therefore, I left with my motorcycle at 08:30 o'clock in the night and reached at Kamdar Medan. Abdul Rajik and Firoj reached there by A.M.T.S. bus when I reached there. Thereafter, they took me to Ibrahim Ansari. Ibrahim Ansari, Gyasuddin Ansari from Gomtipur, Javed Shaikh from Gomtipur and Aslam from Gomtipur were there and Abdul Rajik introduced them to me. Thereafter, Javed Shaikh read Quran and he talked about Qayamat and Jehad. Thereafter, the said program was finished. Thereafter, Abdul Rajik told me that "we arrange program here on every Monday and you shall have to come whenever we call you."
Therefore, I told him that it is ok. I will come if I could spare time. Thereafter, Abdul Rajik was telephoning me to call me in the program but I was not going as I could not spare time due to business.
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(3) Thereafter, Abdul Rajik
telephoned me in January-2008 and called me to the house of Ibrahim Ansari. Earlier, I was introduced with Shamsuddin Shaikh and Aiyaz and the said introduction took place at the house of Ibrahim Ansari. I went to the house of Ibrahim Ansari upon calling by Abdul Rajik. The said Ibrahim Ansari was from Gomtipur, Shamsuddin was from Dariyapur and Aiyaz was from Vatva, Saiyedwadi. The said person read Quran when I was called there. All persons were there at that time. All persons includes Abdul Rajik, Gyasuddin Ansari, Javed Shaikh, Ibrahim Ansari, Shamsuddin Shaikh and Aiyaz. Thereafter, Abdul Rajik gave Takrir (lecture). The said lecture was regarding revenge against the death of the muslims occurred in 2002 and he talked about Jehad. Thereafter, I left the program and stopped going there. Thereafter, Abdul Rajik had been meeting me to call in the program and also making telephone but I had been refusing stating that I don't have time due to business.
(4) Thereafter, Abdul Rajik telephoned me in March-2008 and told me Page 23 of 56 R/CR.RA/1225/2017 JUDGMENT that "You have not attended program since long, you come near Dariyapur Limdi, here religious program is arranged." Therefore, I went to Dariyapur Limdi in the night on my motorcycle. Abdul Rajik arrived there to receive me and he took me to the house of maternal grandfather of Shamsuddin Shaikh. All persons were present there. The said persons were including Shamsuddin Shaikh, Abdul Rajik, Mujib Shiakh, Yunus Mansuri, Aarif Kagji, Abdul Subhan @ Taukir, Mufti from Azamgadh. Other persons were also there but I do not remember their names and Riyaz was also there. Abdul Rajik introduced me with the said persons. At that time, Taukir had given lecture that muslims have lost their lives in the year 2002 due to anti-muslim government, it is required to terrorize the public to remove such government and also said that Islamic state is to be formed and said to do jehad. Thereafter, Mufti had lectured that SIMI got strong and activist of SIMI are spread in all cities in India. Therefore, we all should gather and initiate jehad against such anti-muslim government. I came to Page 24 of 56 R/CR.RA/1225/2017 JUDGMENT know at that time that these persons are activists of SIMI and discussing unlawful matters against the government and the nation.
(5) Twenty to twenty-five days after happening of the said event, in the March month when I was going to Kalupur on my motorcycle for business purpose, the said persons viz. Abdul Rajik, Jahid Shaikh, Mujib, Gyasuddin and Javed Shaikh were standing at the corner of Sarangpur Bridge. I went to them on seeing. Abdul Rajik and Jahid Shaikh both were crying and said that "my brothers have been arrested" and also said that "you don't do anything, we should show our strength to the police and we should make blast in the public against the government." Mujib and Gyasuddin were persuading him and Abdul Rajik was very angry at that time. Thereafter, Javed stated that 'drop him at his house'. Thereafter, I left on my motorcycle to drop Abdul Razik at his house. I asked Abdul Razik on the way that 'what happened?' and he informed me that 'activists of SIMI have been arrested in Indor and we should take revenge for the persecution of Muslims.' Page 25 of 56 R/CR.RA/1225/2017 JUDGMENT Thereafter, we reached to his house and after dropping him near his house, I went to my house. Jahid Shaikh belonged to Juhapura. Javed Shaikh belonged to Gomtipur. Gyasuddin belonged to Gomtipur. Mujib belonged to Juhapura.
(6) After about ten to fifteen days thereof, I went to the house of Abdul Razik to meet him. I came to know over there that 'he had gone to MP'.
Thereafter, Abdul Razik came to meet me after ten to fifteen days. He told me that 'I have visited the houses of the SIMI members who have been arrested by police and I have also met the other members of SIMI' and he also told me that terror should be spread among the public to get those persons released.' I did not pay attention to his conversation. Thereafter, he went away from there. He had also told me that 'I have to inform the members of SIMI that I have visited this place'.
(7) Thereafter, approximately in the month of June, Abdul Razik called me up and stated to come to the house of Ibrahim Ansari. Therefore, I went there at night. When I went there, Ibrahim Page 26 of 56 R/CR.RA/1225/2017 JUDGMENT Ansari, Abdul razik, Gyasuddin, Javed Shaikh and Mufti were present. Mufti stated that 'members of SIMI have been arrested, but we should not fear. We will establish Islamic State'. Thereafter, all had left. Abdul Razik stopped me and told me to drop Mufti to the house of Yunus Mansuri. Therefore, Abdul Razik, Mufti and I went on the motorcycle together and went to the house of Yunus Mansuri. The house of Yunus Mansuri was located in Ajit Mill Residency. Mufti was dropped near the house of Yunus Masuri. The name of this Mufti was Abubashar.
(8) After about two to three days, Abul Razik visited me and he informed me that "I have visited the places such as Naroda Patiya, Gulberg Society and Naroda Gam" and told me that "the well in Naroda Gam is black even today and the houses of Muslims burnt in Naroda Gam are deserted even today. One masjid is situated over there and I have met the Bangi of the masjid and collected information and all these information needs to be passed on to the activists of SIMI." After two to three days, Abul Razik made a phone call and called me Page 27 of 56 R/CR.RA/1225/2017 JUDGMENT near his house at Rajpur Toll Naka. Therefore, I went near his house at night. Abdul Razik met me over there and talked to me about the Muslims who died in the year 2002 and he stated that 'we are quiet now, but very soon they will come to know'. Thereafter, I went to my house.
(9) After about one week, I received a phone call of Abdul Razik and he called me to the house of Yunus Mansuri as Abdulla @ Mufti had come to his house. Therefore, Abdul Razik and I went to the house of Yunus Mansuri on my vehicle. Ynush Mansuri, Abdul Razik, Mufti and Alim were present when we reached to the house of Yunus Mansuri. Mufti stated that 'very soon we will establish Islamic State and all the preparations have been done." Thereafter, Yunus Mansuri ordered food and we all had meal together.
Thereafter, I went to drop Abdul Razik to his house and after I dropped him at his house, I went to my house.
(10) Thereafter, Abdul Razik came to my house approximately on 20th July. I had changed my phone number at that Page 28 of 56 R/CR.RA/1225/2017 JUDGMENT time. My old number was 9904971188 and I changed this number and obtained new number 9714466227. He told me that your phone is switched off and I told him that I have changed the old number and got a new number. He asked me to give him the SIM card of my old number and stated that 'he needed it for his father for some days'. Therefore, I gave him my old SIM card. Thereafter, approximately on 23rd July, I made call to my old number and Razik picked up the call. I asked him as to where he was and I asked to give back my SIM card. He did not state anything, but informed me that 'I am busy' and after saying this, he disconnected the call. Thereafter, I went to the house of Abdul Razik. He was not present at his house. Thereafter, I received phone call of Abdul Razik on 24th and he stated that 'I was busy yesterday' and he told me to repair the doors of his house as the door could not be shut properly. Therefore, I went to his house in the evening to see the door. I went there and asked his mother as to where was Razik and his mother told me that 'he has been receiving many phone calls since last two days and Page 29 of 56 R/CR.RA/1225/2017 JUDGMENT therefore, he does not remain in the house'. After seeing the door, I went away from there.
(11) Thereafter, on 25th July I went to repair the door of the house of Abdul Razik. At that time, Abdul Razik was not present at his house. I repaired the door of his house. Thereafter, Abdul Razik arrived and at night on that day, he took me to Dariapur Limdi. Imran Punthawala, Yunus Mansuri, Shamshuddin Shaikh and Abdul Razik were present over there. These persons were talking that "what kind of Muslims are those who welcome Rathyatra." Thereafter, these persons went away little far from me and started talking. I do not know as to what were they talking.
(12) Thereafter, I was at my
business location with my father and
brothers. I came to know from
surrounding people in the evening on
that day that blasts took place at
various locations in Ahmedabad and many people died. Therefore, I went home with my father and brothers.
(13) Thereafter, I went to Sarangpur Page 30 of 56 R/CR.RA/1225/2017 JUDGMENT on motorcycle on 27th. I called Abdul Rajik from a PCO. He received the call. As he was nearby, he came to meet me. He came with Yunus Mansuri on his motorcycle. I asked him where he was. He told me that "I came after meeting Shamshuddin in Dariyapur". Thereafter, he took me to Yunus Mansuri with him. There was newspaper in the hands of Abdul Rajik. Both were laughing on reading it. Thereafter, Abdul Rajik asked me, "Where is old chawl of Bapunagar?". Therefore, I told him that I have seen it. I asked him why he asked. He told me that, "A friend of mine has come there". I asked him about the name of his friend. He replied that, "Afridi". Afridi entered into a quarrel at his house and came over and he is staying with his maternal uncle Altafbhai. Therefore, we inquired about Altafbhai and searched his house. We found the house of Altafbhai. Afridi was alone in the said house and news channel was on. When I saw him, he looked frightened. News was telecast on TV that, "a person has been identified near Narol Circle." The said news was regarding the bomb blast. Thereafter, I Page 31 of 56 R/CR.RA/1225/2017 JUDGMENT received a phone call from maternal aunt's son. Therefore, I left from there. Before the news on the TV was telecast, Abdul Rajik pushed me away a little and he and Afridi conversed with each other. Thereafter, on receiving the call, I left from there.
(14) Thereafter, Abdul Rajik called me after 20-25 minutes and called me near Machchi Market in Rakhiyal. Therefore, I went to him at Machchi Market. He asked me, "Will you go to shop?" I replied positively. Thereafter, I was asked to take Afridi to Jahid Shaikh in Danilimda. Therefore, Abdul Rajik, Afridi and I left on the motorcycle. On the way, Abdul Rajik told me that, "Drop me near my house" and also told that, "Two of my guests have left in Vadodara bus. I am worried about their safe journey". Therefore, I inquired him as to who the guests were. But, he did not reveal anything. Meanwhile, his house arrived and he got off. Thereafter, I dropped Afridi at the shop of Jahid Shaikh. Jahid was present at his shop. It was a mobile shop. Jahid ordered for tea and snacks. Thereafter, both of them left for Dariyapur on Jahid Page 32 of 56 R/CR.RA/1225/2017 JUDGMENT Shaikh's motorcycle and I went to my shop.
(15) Firoj called me up at the night on 28th and asked me to come near Gomtipur Circle. Therefore, I went to Gomtipur circle. Abdul Rajik was present there. We went to the bus stand near Abdul Rajik's house on foot. Abdul Rajik said that, "For the task of such bomb blasts, such trustworthy companions are required as can do anything for each other". He also told that, "Go home and switch on TV and watch news normally". He also told that, "No one has to think that I have done this." Thereafter, he talked about the Muslims who died in 2002. Thereafter, I went home.
(16) Thereafter, Abdul Rajik telephoned me on 29th and called me near his house in the morning. Therefore, I went to his house and he told me that, "I am going to Ajmer with my wife and children. My father has bought tickets for us." He also told me that, "I have brought a new SIM card of Idea for my father". He told me that documents for the same are to be given to Jahid Shaikh's shop. Thereafter, he gave me a Page 33 of 56 R/CR.RA/1225/2017 JUDGMENT photo of his father and election card. I took the documents and submitted them at Jahid Shaikh's shop.
Now, I remember that 2-3 days after coming to Yunus Mansuri's house, Abdul Rajik phoned me and called me near his house and told that "If you have documents of any of your Hindu friend, give them to me. I want to get a PAN card issued." I replied negatively to him.
(17) Thereafter, I received a phone call from Abdul Rajik from a PCO in the morning on 1st August. He was asking for mobile phone given for repairing. I said no to him that I did not have his mobile phone. On the same evening, Firoj brought his mobile phone to me. The said phone belonged to Abdul Rajik. I took the mobile phone from him and kept it at my house.
(18) Thereafter, I received a phone call from Mujib Shaikh on 3rd August and inquired about conditions of Juhapura and Ahmedabad. I told him that, "I do not have time due to my business and I do not know anything". I asked him where Page 34 of 56 R/CR.RA/1225/2017 JUDGMENT he was. But, he hung up the call without replying. Thereafter, I received a phone call from Abdul Rajik. He also asked me about Ahmedabad. I also gave him the same reply that, "I do not know anything". Thereafter, I checked the mobile phone and saw that Abdul Rajik and Mujib Shaikh had phoned from the same number. The number belonged to Madhya Pradesh.
Further Examination-in-Chief is adjourned due to recess.
07-12-2017 Before me, Ahmedabad. Sd./- illegible (A.R. Patel) Spl. Designated Judge Special Court for Speedy Trial of Serial Bomb Blast Cases, Ahmedabad, Gujarat.
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Sessions Case No- 38 / 2009 (Main) With Sessions Case Nos.- 61/09, 82/09, 95/09, 300/09, 319/09, 321/09, 323/09, 334/09, 339/09, 341/09, 342/09, 344/09, 346/09, 347/09, 348/09, 361/09, 362/09, 364/09, Page 35 of 56 R/CR.RA/1225/2017 JUDGMENT 365/09, 412/09, 418/09, 438/09, 443/09, 448/09, 453/09, 458/09, 463/09, 468/09, 476/09, 481/09, 488/09, 500/09, 504/09, 509/09, 22/14 to 36/14, 38/14 to 57/14.
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In continuance with Exhibit- 6687. Date : 07/12/2017.
Further Cross-Examination
- By Ld. Sp. A.P.P. Mr. Amitbhai Patel.
Oath Re-administered.
(19) Thereafter, on 7th August, 2008, I was going to Gwalior in Madhya Pradesh to bring my wife. I went to Kalupur Railway Station at six o'clock in the evening. At that time, Abdul Rajik called me on phone and asked as to where I was. I replied him that I was going to Gwalior to bring my wife. Thereafter, he asked me the detail of my train. I informed him that, my seat No-63 in coach no-S/5 of the Veraval - Jabalpur Express. I told him that, my seat was reserved. He told me that " It's OK. I am coming to meet you at Ratlam." Thereafter, I sat in the train.
Page 36 of 56R/CR.RA/1225/2017 JUDGMENT Thereafter, the train reached at Ratlam railway station at around two and half to three o'clock in the night. At that time, Abdul Rajik met me. He had come alone. He asked me about the situations of our friends in Ahmedabad. I told him that none of them had met me, and therefore I did not know. Thereafter, Abdul Rajik told me that, " I am accompanying you till Nagada." and he sat in the train with me. I asked him as to what had happened. He informed me that, "the idea behind the bomb blast in Ahmedabad city was of Taukir and Qyamuddin Kapadiya." He also told me that, "These persons were in contact with the Indian Muzahiddin and I was in contact with both of them." He also said that, "The Indian Muzahiddin will provide everything for the bomb blast to avenge the events of 2002 in Ahmedabad." Thereafter, he informed that, "Taukir and Qyamuddin came to reside in Ahmedabad and we were in contact with them." Thereafter, he also said that, "After reking different areas, the bomb are to be planted at some specific locations. He also said again that, I, Afridi, Mujib and Aiyaz were in contact Page 37 of 56 R/CR.RA/1225/2017 JUDGMENT with both of them from the beginning, and Taukir was in contact with the persons of the Indian Muzahiddin and the things required to make bomb will be provided by the Indian Muzahiddin." He also said that, "The remaining things were purchased from the nearby area." Thereafter, Rajik said that "I, Afridi, Mujib, Qyamuddin and Aiyaz had parked the bicycles with bombs at the places where the reikie was conducted for bomb blast. "He also said that, "At the rest of the places, the persons of Indian Muzahiddin from U.P. had parked the bicycles loaded with bombs, and after the bomb-blast, the persons from U.P went back." He also said that, "The vehicles loaded with bombs which were parked at Civil and L.G. Hospital were brought by the persons of Indian Muzahiddin from Mumbai. "He also said that "He was sighing for the bombs which had not blasted in Surat." He also stated that "I do not know as to what mistake was committed by our brothers due to which the bombs did not get blasted." Thereafter, he also said that "Taukir had told us to leave Ahmedabad and now, I, Mujib and Taukir are Page 38 of 56 R/CR.RA/1225/2017 JUDGMENT together, and I do not know about others. "Thereafter, when we reached near Nagada, he told me that, "If you go to Ahmedabad, take care of my parents.
"Thereafter, he also told me that, "I will make a phone call if I will need you." Thereafter, Abdul Rajik got down at Nagada. Qyamuddin Kapadiya was from Vadodara. Rajik had introduced me to Qyamuddin Kapadiya.
Question : In which month and at which place had you been introduced to Qyamuddin Kapadiya ?
Answer : I had been acquainted with him at the place of Shamshuddin's grandfather in March, 2008.
Note : The defense has raised objection against the question asked to the witness by stating that "the names of all the present persons were given in the reply to the question asked before the Examination-in-Chief conducted before the recess time as to who had met in March, 2008 at the place of Shamshuddin Shaikh's grandfather, these names have been mentioned in the examination-in-chief conducted earlier.Page 39 of 56
R/CR.RA/1225/2017 JUDGMENT At that time, the prosecution had submitted to include the names if any were remaining, but the witness had given only one name and he had not given the name of Qyamuddin. By asking this question, an attempt has been made to fulfill the lacuna, and as this name appears after the recess, the defense has raised its objection."
(20) Firstly, on 17th October, 2008, I stated all these details to the officer Shri Mayur Chavda and he recorded my statement accordingly. Thereafter, on 24/10/2008, a summons of the Court was served on me. This summons was issued by the Metropolitan Magistrate Court No. 5. I received this summons in the morning on 24/10/2008. Thereafter, at about four o'clock in the afternoon, I went to the Court. I showed the summons to the Clerk of the Court. I was told to sit for a while. Thereafter, I was sent into the cabin of the Magistrate. After I went into the cabin, at first, the Magistrate asked my name and he also asked as to how I came there. Therefore, I stated that I myself came there on my CD-100 Bajaj Page 40 of 56 R/CR.RA/1225/2017 JUDGMENT motorcycle. Magistrate also asked me "whether any police personnel have come with you?" Therefore, I denied. I was also asked that "whether anyone has tried to allure?" I denied. I was also given time for giving statement. I was also told that "whether persons of Crime Branch have tried to pressurize you?" I denied. Thereafter, I was told to remain present at about half past three on 5/11/2008. Thereafter, I was given instructions and they gave me to read it and I was made to make signature in it. Thereafter, at about three to half past three o'clock on 5/11/2008, I went to Court No.5. The Magistrate asked me as to how I came there? So, I told the Magistrate that I have come there on scooter. The Magistrate asked me "Do you want to give statement willingly?" I stated yes, I want to serve the country. Thereafter, as I was speaking, the Magistrate was writing and I gave my statement. After I dictated the statement, the Magistrate gave the statement to read. After I read it, the Magistrate made me put my signatures on the statement.
Page 41 of 56R/CR.RA/1225/2017 JUDGMENT Note: At this stage, for showing the witness the statement given by him as per Section-164 of the Cr.P.C., one big green coloured sealed cover bearing Confidential Outward No.20/2009 addressed to the Principal Judge, City Sessions Court, Bhadra, Ahmedabad, received on 9/11/2009, is opened in the open Court in presence of both the parties and the witness. This cover contains total 9 small sealed covers, out of which, the cover of the present witness Zakirhusen Abduljabbar Kureshi is opened and the statement is taken out of it and given to the Advocate for the Prosecution.
(21) I am being shown the statement dated 24/10/2008 of CR No. I-203/2008 recorded at Maninagar, which contains my name and the signature, which I made on its back side after reading it. On the second page of the same statement, date 5/11/2008 is written and the write-up under it is the statement given by me. I am being shown signatures made in the space of indent of each page of the statement as well as at the end of the statement, which are in English Page 42 of 56 R/CR.RA/1225/2017 JUDGMENT language. They are my signatures and I identify the said signatures. This is the original statement that I had stated before the Magistrate. This statement is being read over to me. On hearing the same, I state that the details written in it are true. I spoke in Hindi while dictating this statement and the Magistrate wrote Hindi words in Gujarati language. This statement is produced and given Exhibit-6688.
(22) If I am shown today the persons whose name I have mentioned in my examination-in-chief, I can identify them. I am shown the accused persons kept at Ahmedabad Central Jail through video conference TV screen in set of three, wherein three accused persons were shown in the fourth batch. Out of them, the witness identifies one accused person and states that this is Kayamuddin Kapadiya. Hence, the accused person was asked his name and he stated his name is Kayamuddin Kapadiya.
(23) In the fourth batch of three accused persons, the witness identifies one accused person and states that he is Javed Shaikh. The witness identifies the Page 43 of 56 R/CR.RA/1225/2017 JUDGMENT accused person after he was made to remove his spectacles and cap and on being asked the accused person his name, he states that his name is Javed Sagir Ahmed Saiyed. As he is asked to state his Prisoner number, he states that his number is 18 and on seeing the name at serial number 18, it is Javed Ahmed Sagir Ahmed Shaikh.
Further examination-in-chief is adjourned at this stage in the interest of justice, as the Court time is over Date: 7/12/2017 Before me, Ahmedabad sd/-illegible (A.R. Patel) Spl. Designated Judge Special Court for speedy trial of Serial Bomb Blast Cases Court, Ahmedabad, Gujarat.
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Sessions Case No. 38 - 2009 (Main) with Sessions Case No. 61/09, 82/09, 95/09, 300/09, 319/09, 321/09, 323/09, 334/09, 339/09, 341/09, 342/09, 344/09, 346/09, 347/09, 348/09, 361/09, 362/09, 364/09, 365/09, 412/09, 418/09, 438/09, 443/09, 448/09, 453/09, 458/09, 463/09, 468/09, Page 44 of 56 R/CR.RA/1225/2017 JUDGMENT 476/09, 481/09, 488/09, 500/09, 504/09, 509/04, 22 - 14 to 36 - 14, 38 - 14 to 57 - 14.
Exh-6687 - Continuation Dt : 08/12/2017 Further examination-in-chief by the Ld. Sp. APP Mr.Amitbhai Patel on behalf of the State :-
Re-administered oath :-
(24) I am shown the batch of three accused persons one by one through video conference who are kept in Central Jail, Ahmedabad. Out of them, the witness identifies one accused in seventh batch of three accused persons as Alamzeb Afridi. Upon asking the said accused to remove his spectacles and tell his name, he states his name Mohhamad Rafiq alias Alamzeb Afridi.
Note :- Up till now, the said accused Alamzeb Afridi is not an accused in the present case. But, charge-sheet has been filed against him earlier as an absconding accused. And presently, the charge-sheets against the said accused Page 45 of 56 R/CR.RA/1225/2017 JUDGMENT have been committed to this Court. But, still it has not been ordered to include the said charge-sheets in the present cases.
(25) The witness identifies one accused out of three in ninth batch as Aiyaz Razakmiyan Saiyad. Upon asking his name, he states his name Aiyaz Saiyad.
(26) The witness identifies one accused out of three in eleventh batch as Mufti Abubashar. Upon asking his name, he states his name Mufti Abubashar.
(27) The witness identifies one accused out of three in twelfth batch as Mohhamad Arif Kagzi. Upon asking his name, he states his name Mohhamad Arif Kagzi.
(28) The witness identifies one accused out of three in thirteenth batch as Jahid Kutbuddin Shaikh. Upon asking his name, he states his name Jahid Kutbuddin Shaikh.
(29) The witness identifies one accused out of three in fourteenth batch as Shamsuddin Shaikh. Upon asking his Page 46 of 56 R/CR.RA/1225/2017 JUDGMENT name, he states his name Shamsuddin Shaikh.
(30) The witness identifies one accused out of three in sixteenth batch as Yunus Mansuri. Upon asking his name, he states his name Yunus Mansuri.
(31) The witness identifies one accused out of three in seventeenth batch as Abdul Rajik. Upon asking his name, he states his name Mohhamad Ismail alias Abdul Rajik.
(32) Out of three accused persons in sixth batch, one was kept aside earlier by the witness. On producing the said accused again before the witness, he states his name as Gyasuddin Ansari. Upon asking his name, he states his name Gyasuddin Ansari.
(33) I am shown the batch of three accused persons one by one through video conference who are kept in Central Jail, Bhopal. But, out of them, the witness identifies none.
(34) Note :- Today, out of total - 74 accused persons of the present case, the accused Nos. 30, 43, 44, 46, 47, 48, Page 47 of 56 R/CR.RA/1225/2017 JUDGMENT 49 and 72 have not been produced. Because, the remaining accused No. 30, 43, 44, 46, 47 are in Taloja Jail and accused Nos. 48, 49 and 72 are in Arnakulum Jail.
(35) Mujib Shaikh and Abdul Subhan alias Taukir are not present among the accused persons whose names have been stated by me in my examination-in-chief.
Note :- At this juncture, the prosecution submitted an application at Exh-6690, wherein, permission to ask question as mentioned in the said application has been sought. Whereas, the defence has raised strong objection against it. And after hearing both the parties, the objection raised by the defence is admitted and the prosecution is allowed to ask said question with objection.
Question :- Whether you have been tempted, threatened or pressurized by anybody to give this deposition ? (As per the application at Exh-6690) Answer :- No. Examination-in-chief concludes:-
Page 48 of 56R/CR.RA/1225/2017 JUDGMENT At this juncture, the Cross-examination is adjourned in the interest of Justice due to completion of Court hours.
The aforesaid deposition has been recored before me in my personal supervision as dictated by the witness and on reading over the same to the witness, he admits it to be proper and true.
Dt:08/12/2017 Before me, sd/-illegible Ahmedabad (A.R.Patel) Spl. Designated Judge, Special Court for Speedy trial of Serial Bomb Blast Cases Court, Ahmedabad, Gujarat."
16. On overall consideration of the matter before this Court, it can be seen that the application Exh.6695 preferred by the accused is general and vague in nature and runs in one page only and even no ground is mentioned for arraigning the present accused excepting imputing that the secret witness is having knowledge and therefore, he should be held to be co-conspirator and he should be put to trial along with other accused. This Court has also minutely gone through the statement of the present witness which was recorded by the police during the course of interrogation dated 17.10.2008 as well as his statement before the Magistrate dated 24.10.2008. Both the statements as well as Page 49 of 56 R/CR.RA/1225/2017 JUDGMENT deposition were read over before this Court in the open Court which came to be translated into English. This Court objectively examined the aforesaid evidence on record. For appreciating the same, this Court deems it appropriate to reproduce the definition of "criminal conspiracy"
as provided under section 120-A of IPC.
"120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
17. It would also be fruitful to refer to section 319 of the Code which reads as under.Page 50 of 56
R/CR.RA/1225/2017 JUDGMENT "319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then-
(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause Page 51 of 56 R/CR.RA/1225/2017 JUDGMENT
(a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
18. Indian Penal Code has defined the term "criminal conspiracy" and the term "criminal conspiracy" has been examined by the several courts, more particularly, by the Apex Court in the celebrated decision in the case of State of Maharashtra and others Vs Som Nath Thapa and others (supra) by resorting to the interpretation of foreign Court also on which reliance has been placed by Mr.Syed, learned counsel for the petitioners. In the decision referred above, the arguments were advanced on behalf of the Additional Solicitor General of India that knowledge by itself would be enough for inferring conspiracy, but the said argument was not accepted as emerging out from the observations made by the Apex Court in paragraph 24 as reproduced above.
19. This Court, while appreciating the evidence of the witness who is sought to be arraigned as accused, noticed that even prior to commission of the act of serial blast at Ahmedabad and planting of bombs in Surat city, Page 52 of 56 R/CR.RA/1225/2017 JUDGMENT the witness had come in contact with the other accused and such sort of frequent meetings with other accused and deriving knowledge as regard to the purpose and design running in the minds of the accused may be believed to be within the knowledge of witness who is sought to be arraigned as accused, but this Court is not noticing anywhere from his police statement, statement before the Magistrate as well as from his deposition so as to believe that he had ever provided any sort of instigation or aid/abetment or either tacit or implied consent and had ever concerted with other accused in furtherance of their design or purpose. Indisputably, nowhere any express consent or agreement is revealing. In absence thereof, as noted above, since nothing is revealing as regards to tacit or implied consent for carrying out such act with the accused put on trial and therefore, there appears no iota of evidence so as to link the present secret witness to have had any criminal conspiracy so as to hold him also as co- conspirator. The evidence on record as contended by Mr.Syed, learned advocate for the petitioners that secret witness provided one sim card which came to be used by the father of one of the accused, but nothing is revealing that the same sim card was used for facilitating for commission of crime in question and even it is nobody's case Page 53 of 56 R/CR.RA/1225/2017 JUDGMENT that said sim card was used for facilitating the offence in question.
20. This Court has minutely and objectively gone through the evidence on record and nothing is appearing from the evidence of the secret witness so as to believe that secret witness appears to have committed any offence which renders him liable to be tried along with other accused as such.
21. The contention is raised that though the secret witness had knowledge as regards to illegal purpose and design, nurturing the accused and even after execution thereof, the secret witness had knowledge as regards to bomb blast took place at Ahmedabad and planting of bombs at Surat city by the accused though he did not disclose the same before the police and thereby he had become guilty for the offence punishable under section 202 of IPC. In this regard, since the evidence on record is clearly indicative that whenever the secret witness was put to interrogation, he has disclosed everything which was within his knowledge and that fact even he also disclosed before the Magistrate while his statement came to be recorded under section 164 of the Code and even such fact, he has deposed before the learned trial Court during the course Page 54 of 56 R/CR.RA/1225/2017 JUDGMENT of trial and therefore, it cannot be believed that the secret witness has not disclosed the facts before the authority concerned so as to render him liable to be punished under section 202 of IPC. Further, even though the secret witness had knowledge during the course whenever he was attending the meeting with the co-accused, that by itself per-se would not be believed or inferred to be co-conspirator unless he has assisted, aided or provided any service or goods in carrying on further purpose or design on the part of the accused.
22. For the reasons recorded above, the present Criminal Revision Application is required to be dismissed and accordingly, it is dismissed. Rule is discharged.
23. It is needless to say that as the trial of the Sessions Case in question is going on before the learned trial Court, this Court has concentrated upon the evidence on record as to whether a person sought to be impleaded as accused appears to have committed any offence or not and this Court refrained totally from examining the evidence on record in detail, however, objectively gone through the same for forming the decision as above and therefore, the observations made hereinabove by this Court are Page 55 of 56 R/CR.RA/1225/2017 JUDGMENT made only for the purpose of deciding the application under section 319 of the Code and learned trial Court shall conduct the Sessions Case in question on its own merits and in accordance with law and shall not be influenced by the above observations in any manner.
(R.P.DHOLARIA, J) H.M. PATHAN Page 56 of 56