Karnataka High Court
Syed Mohammed Ibrahim S/O Syed Ismail vs State Of Karnataka By Magadi Road Ps on 12 December, 2012
Bench: D.V.Shylendra Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR. JUSTICE H S KEMPANNA
Criminal Appeal No 1202 of 2008 [DB-C]
C/w
Criminal Appeal No 39 of 2009 [DB-C]
And
Criminal RC No.5 of 2008
IN CRL.A. NO. 1202 OF 2008
BETWEEN:
1. SYED MOHAMMED IBRAHIM
S/O SYED ISMAIL
AGED ABOUT 45 YEARS
R/O CHINNAPPA REDDY LAYOUT
BELAGERE ROAD
NEAR SHARADA VIDYA MANDIR
VARTHUR, BANGALORE.
2. SYED HASAN UZ ZAMA
S/O LATE S A AZEEZ
AGED ABOUT 57 YEARS
JUNIOR WARRANT OFFICER
R/O AIR FORCE HEAD QUARTERS
R K PURAM, NEW DELHI
R/O S.M.Q., 60/3, SAFED NAGAR,
GURGAON, HARYANA.
2
3. ABDUL RAHMAN SAIT @ SAJID
S/O LATE ALI AHAMED SAIT
AGED ABOUT 53 YEARS
ADMINISTRATIVE ASSISTANT BEML
R/O.NO.209, 9TH MAIN ROAD
VIJAYANAGAR
BANGALORE.
4. AMANATH HUSSAIN MULLA
S/O LATE MAGDHUM HUSSAIN MULLA
AGED ABOUT 59 YEARS
SUPERVISOR IN BEML,
R/O NO.49, 5TH CROSS,
GUNDAPPA STREET
REHMATHNAGAR,
R.T. NAGAR, 1ST MAIN ROAD,
BANGALORE. ... APPELLANTS
[By Sri Hashmath Pasha, Adv.]
AND:
STATE OF KARNATAKA BY
MAGADI ROAD POLICE STATION
BANGALORE CITY
INVESTIGATED BY DEPUTY
SUPERINTENDENT OF POLICE
SPECIAL ENQUIRY SQUAD
C.O.D., BANGALORE
REP. BY STATE PUBLIC PROSECUTOR ... RESPONDENT
[By H N Nilogal, SPP]
THIS CRL.A FILED U/S 374(2) OF CODE OF CRIMINAL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTIONS DT.21.11.2008 AND SENTENCES DT.29.11.2008
PASSED IN S.C.NO.423/2001 ON THE FILE OF 34TH ADDL. CITY CIVIL
AND SESSION JUDGE AND P.O., SPL.COURT FOR THE TRIAL OF
CHURCH BOMB BLAST CASES, CENTRAL PRISON PREMISES,
BANGALORE AND ETC.,
3
IN CRL.A. NO. 39 OF 2009
BETWEEN:
1. SHEIK HASHIM ALI
S/O SYED KHASIM ALI
AGED ABOUT 30 YEARS
VIDEOGRAPHER
R/O 10-4-469,
DEENDAR ANJUMAN ASHRAM
ASIF NAGAR, HYDERABAD
A.P. STATE
2. MOHAMMED FAROOQ ALI @ FAROOQ
S/O MOHAMMED IFTHEKAR ALI
AGED ABOUT 34 YEARS
GENERAL STORES
R/O FAROOQ KIRANI STORES
ANJUMAN ASHRAM, ASIF NAGAR
HYDERABAD, A.P. STATE
3. MOHAMED SIDDIQUE
S/O MOULANA MOHAMMED MAHABOOB
AGED ABOUT 55 YEARS
OWNER OF READYMADE GARMENT SHOP
R/O PRASHANANAGAR
CHIKKABALLAPUR,
KOLAR DISTRICT
4. ABDUL HABEEB
S/O LATE MOULA ALI
AGED ABOUT 52 YEARS
APSRTC DRIVER
R/O PASHA PETA, MUSLIM BAZAR
THIRUVOR, KRISHNA DISTRICT
A.P. STATE.
5. SHAMSHUZAMA
S/O SYED ABDUL AZEEZ
AGED ABOUT 50 YEARS
APSRTC CONDUCTOR
R/O NUZVID, KRISHNA DISTRICT
A.P. STATE.
4
6. SHEIK FARDEEN VALI @ FAREED
S/O SHEIK ABDUL SATTAR
AGED ABOUT 37 YEARS
CIVIL CONTRACTOR
AND CLOTH SHOP OWNER
R/O MUVVA, KRISHNA DISTRICT
A.P. STATE
7. SYED ABDUL KHADAR JILANI
S/O LATE ABDUL AZEEZ
AGED ABOUT 45 YEARS
T V MECHANIC
R/O PASHA PETA, NUZVID
KRISHNA DISTRICT, A.P. ... APPELLANTS
[By Sri Hashmath Pasha, Adv.]
AND:
STATE OF KARNATAKA BY
MAGADI ROAD POLICE STATION
BANGALORE CITY
INVESTIGATED BY DEPUTY
SUPERINTENDENT OF POLICE,
SPECIAL ENQUIRY SQUAD
C.O.D. BANGALORE
REP. BY STATE PUBLIC PROSECUTOR ... RESPONDENT
[By H N Nilogal, SPP]
THIS CRL.A FILED UNDER SECTION 374(2) OF CODE OF
CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTIONS DT.21.11.2008 AND SENTENCES
DT.29.11.2008 PASSED IN S.C.NO.423/2001 ON THE FILE OF 34TH
ADDL. CITY CIVIL AND SESSION JUDGE AND P.O., SPL.COURT FOR
THE TRIAL OF CHURCH BOMB BLAST CASES, CENTRAL PRISON
PREMISES, BANGALORE AND ETC.,
5
IN CRL. RC NO. 5 OF 2008
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BANGALORE ... PETITIONER
[By Sri H N Nilogal, SPP
for Advocate General]
AND:
1. SYED MOHAMMED IBRAHIM
S/O SYED ISMAIL
AGED ABOUT 45 YEARS
R/O CHINNAPPA REDDY LAYOUT
BELAGERE ROAD
NEAR SHARADA VIDYA MANDIR
VARTHUR, BANGALORE.
2. SYED HASAN UZ ZAMA
S/O LATE S A AZEEZ
AGED ABOUT 57 YEARS
JUNIOR WARRANT OFFICER
R/O AIR FORCE HEAD QUARTERS
R K PURAM, NEW DELHI
R/O S.M.Q., 60/3, SAFED NAGAR,
GURGAON, HARYANA.
3. ABDUL RAHMAN SAIT @ SAJID
S/O LATE ALI AHAMED SAIT
AGED ABOUT 53 YEARS
ADMINISTRATIVE ASSISTANT, BEML
R/O.NO.209, 9TH B MAIN ROAD
VIJAYANAGAR, BANGALORE.
4. AMANATH HUSSAIN MULLA
S/O LATE MAGDHUM HUSSAIN MULLA
AGED ABOUT 59 YEARS
SUPERVISOR IN BEML,
R/O NO.49, 5TH CROSS,
GUNDAPPA STREET
REHMATHNAGAR,
6
R.T. NAGAR, 1ST MAIN ROAD,
BANGALORE. ... RESPONDENTS
(ACCUSED NOS.1, 8, 9 & 17
IN SC NO.423 OF 2001)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CODE OF CRIMINAL
PROCEDURE FOR CONFIRMATION OF DEATH SENTENCE AWARDED
TO THE ABOVE RESPONDENTS/ACCUSED, BY THE XXXIV ADDL.
CITY CIVIL & SESSIONS JUDGE & PRESIDING OFFICER, SPL. COURT,
CENTRAL PRISON PREMISES, BANGALORE BY JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DT. 21/29.11.2008 IN S.C.
NO. 423/01 AND ETC.
THESE CRL.APPEALS & CRL.RC COMING ON FOR HEARING,
THIS DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
Criminal Appeal Nos 1202 of 2008 and 39 of 2009 are preferred by Accused Nos.1, 8, 9, 17 and Accused Nos.5, 6, 10, 13, 14, 16, 18 respectively, challenging the legality and correctness of the Judgment and Order dated 21.11.2008/29.11.2008 passed in SC No.423/2001 by 34th Additional City Civil & Sessions Judge & Presiding Officer, Special Court for the trial of Church Bomb Blast Cases, sitting at Central Prison Premises, Bangalore City, convicting:
7
[a] A1, A8, A9 & A17 for the offences under sections 121, 120-B r/w. 121-A, 124-A, 153-A of IPC and further Accused No.1 for the offences punishable under sections 304 Part II, 337, 427 of Indian Penal Code [for short IPC] and under Rule 5 of the Explosives Rules, 1983 [for short 'Explosive Rules'], under section 9-B of the Explosives Act, 1884 [for short Explosives Act] and under sections 3 and 5 of the Explosive Substances Act, 1908 [for short 'Explosive Substances Act'] and [b] Accused Nos. 5, 6, 10, 13, 14, 16 and 18 for the offences under sections 120-B r/w. 121-A, 124-A, 153-A of IPC and sentencing:
[a] A1, A8, A9, A17 to death for the offence u/s.121 of IPC, to undergo imprisonment for life for the offences u/ss. 120B r/w.121A of IPC and u/s.124A of IPC, to undergo R.I. for three years for the offence u/s.153A of IPC and further 8 sentencing A1 to undergo R.I. for 10 years for the offence u/s.304 Part II of IPC, R.I. for six months for the offence u/s.337 of IPC, R.I. for two years for the offence u/s.427 of IPC, R.I. for two years for the offence under Rule 5 of the Explosive Rules r/w. Section 9B of the Explosives Act and imprisonment for life and R.I. for ten years for the offences u/ss.3 and 5 of the Explosive Substances Act respectively and [b] A5, A6, A10, A13, A14, A16, A18 to undergo imprisonment for life for the offences u/ss.120B, r/w.121A IPC and 124-A of IPC and R.I. for three years for the offence u/s.153A of IPC.
2. Criminal reference case No.5 of 2008 has been registered on the basis of submission made to this court as contemplated under section 366 of Cr.PC by the learned Sessions Judge to confirm the death sentences passed on Accused Nos. 1, 8, 9 and 17.9
IN CRIMINAL APPEAL NOs 1202 OF 2008 & 39 OF 2009:
3. The brief facts of the case are :-
The appellants/accused along with A4 who died during the pendency of trial were tried on the charges for the offences punishable under Sections 121, 121-A, 124-A read with section 120-B, 153-A r/w section 120-B, 304 r/w 120- B, 337 r/w 120-B, 427 r/w 120-B of IPC and under rule 5 of Explosives Rules read with section 9-B of the Explosives Act r/w. 120-B of IPC and under sections 3, 5 of the Explosive Substances Act r/w. 120-B of IPC.
4. It is alleged that these appellants/accused along with A2, A3 the two deceased and absconding accused Nos.7, 11, 12 and 15 in the case being the members of Deendar Anjuman Organization, held secret meeting on 20.10.1999 at Deendar Anjuman Ashram situated in Asifnagar, Hyderabad and entered into a criminal conspiracy to spread Islam religion throughout the world including India and to 10 commence Jihad and Nifaaq throughout India to create disharmony or feelings of enmity, hatred, ill-will between the two major communities of India viz. Hindus and Christians and to derail the Indian economy and to promote widespread communal clash, committed many illegal acts within the state of Andhra Pradesh and further continuing the conspiracy entered by them at Deendar Anjuman Ashram situated in Asifnagar, held secret meetings within the State of Karnataka at various places and in particular in the houses of A1 and A9 situated at Varthur and Vijayanagar in Bangalore City in between the period from October 1999 to 9.7.2000 and in furtherance of that continued and renewed conspiracy, the accused printed, published and circulated the pamphlets, books, booklets containing literature to excite disaffection towards the Government established by law in India and also provoked to take up Jihad and Nifaaq activities to derail Indian economy by sending secret information with regard to vital Defence installations of the Government, roads, bridges etc. to Pakistan through CD's 11 and floppies etc and thereby brought or attempted to bring hatred or contempt or excited and further, in order to Islamize whole of India through Jihad and Nifaaq activities, mobilized funds amongst by illegal means like theft, robbery and dacoity and also transmitted secret defence information and collected information about the vital installations in India to A7 residing at Mardhan in Pakistan and in order to create communal disturbances, lawlessness, planted bombs in Churches and other places, desecrated the places of worship, caused injuries to innocent persons and to thus wage war or attempted to wage war against the Govt. of India and further on 9.7.2000 at about 9.30 p.m. transported bombs in Maruthi Van bearing No.GA-01-U-
2786 illegally without valid licence or permit issued by the Competent Authority to plant in religious places, which accidently exploded in front of Minerva Mill Gate, Bangalore resulting in death of A2, A3, injuries to PW1 and damage to Maxi Cab belonging to PW8 and thereby have committed the aforementioned offences.
12
5. It is the case of the prosecution that all the accused persons are the members of an unlawful association, namely, Deendar Anjuman Ashram, having its head office at Asifnagar, Hyderabad, State of Andhra Pradesh and branches in various places in the States of Andhra Pradesh, Karnataka, Goa, Maharashtra and other States. One late Sri Hazrath Moulana Syed Siddique Kibla @ Siddique Deendar Channabasaveshwara, hereinafter referred to as "Hazrath Siddique" for convenience, is the founder of Deendar Anjuman Ashram situated at Asifnagar, Hyderabad and he died on 4th April 1952. His body was buried in the Ashram at Asifnagar, Hyderabad and a tomb was built there itself. Late Hazrath Siddique left behind him his son viz., Zia-Ul- Hassan, who later became Guru of Deendar Anjuman Ashram. Later he migrated to Pakistan along with his family members i.e., 7 sons and a daughter and started residing at Mardan, Pakistan.
13
6. The hidden aim and object of Deendar Anjuman Ashram was to Islamise the whole world including India. To propagate their object and hidden agenda, they printed, published and circulated various books in many languages including Kannada, English, Urdu, Arabi, Tamil, Telugu, to attract young Muslims in achieving their object. The organizers of the Deendar Anjuman Ashram used to hold secret meetings every year after celebration of Urs in the month of Rajab and motivate the young followers to take training in Jihad, Nifaaq and Syria activities. Accordingly, many accused persons went to Pakistan and took training in preparing and operating arms and using ammunitions including explosive materials, preparation and blasting of bombs. A7 namely Sahebjada Zia-Ul-Hassan, with the assistance of his sons i.e., A.11 viz., Syed Khalid Pasha, A.12 viz., Syed Sabihul Hassan and A.15 viz., Syed Zahed- Ul-Hassan, who are absconding. On 20.10.1999 held a main conspiracy meeting at Deendar Anjuman Ashram, Hyderabad and at other various places to commit illegal acts 14 by illegal means, to create disharmony or feelings of enmity, hatredness and ill will between two major communities i.e., Hindus and Christians, so as to spread communal clashes in between those communities. In that conspiracy meeting, they agreed to prepare and circulate pamphlets to the Christian missionaries in the name of Hindus and vice versa to create communal ill will in between the major religions of India. Plans were also prepared to commit holy jihad to achieve the above goal. Further, in that conspiracy meeting they agreed to collect the information about the vital installations of India including bridges, roads, military bases, railways and like other important places to derail the Indian economy. They also agreed to blast churches in various places to create communal hatredness. To perform this jihad activities they agreed to mobilize the funds by indulging in theft, robbery, dacoity etc., i.e., Syria and to send the mobilized amount to their Guru namely Zia-Ul- Hassan residing at Mardan, Pakistan. The agenda of the conspiracy was to create hatredness towards the 15 Government, established by Law in India and also cause other Christian dominated western countries to condemn India. In this direction, many main conspiracy meetings were held at Deendar Anjuman Ashram and other places on 20.10.1999. Accordingly, many places of worship were blasted by planting bombs in the State of Andhra Pradesh.
7. It is further the case of prosecution that in furtherance of the main conspiracy held at Hyderabad, the said conspiracies were renewed in Karnataka also by holding secret conspiracy meeting in the houses of A.1 viz., Syed Mohd. Ibrahim at Varthur and A.9 namely Abdul Rehaman Sait at Vijayanagar, Bangalore. All the accused persons got printed various provocative pamphlets in the name of Hindus addressed to the Christians and in the name of Christians addressed to Hindus and circulated them in various places to promote disharmony in between two major communities. The accused persons collected information with regard to railways, bridges, important roads, 16 Government establishments, defence secrets, atomic energy plants and other vital installations and transmitted the said information to A7 residing at Mardan, Pakistan through internet, floppies, C.Ds., E-mail etc., only to derail Indian economy, cause financial loss and in turn to destabilize the Government established by law in India.
8. In furtherance of the renewed and continued conspiracies held in the houses A.1 and A.9 at Varthur and Vijayanagar, Bangalore, A1, 2, 5 and 6, prepared bombs in the house of A.5 namely Sheik Hasim Ali, at Hyderabad and later sent to Bangalore through A.2 viz., Zakir. A.18 namely Syed Abdul Khadar Jilani, who was specially trained in preparing time bombs, prepared the bombs and later transported it to various places. On 9.7.2000, in furtherance of the continued conspiracy, with the active assistance of other accused persons, A.1 along with deceased A2 and 3 transported huge explosive substances and bombs in the Maruthi Van bearing registration No.GA 01 U 2786 and 17 planted some of them at St. Peter and Paul Church, situated at J.J. Nagar, Bangalore. In the meantime, the members and followers of Deendar Anjuman Ashram, had planted bombs at St. Ann's Catholic Church, Wadi and St. John Lutheran Church at Hubli, blasted them and created communal disturbances, law and order problem in those areas. After planting bomb in St. Peter and Paul Church, situated at J J Nagar, Bangalore, with an intention to plant some other bombs and explosive substances in some other places of worship, A1, deceased A2 and 3, were transporting huge explosive substances and bombs in the Maruthi van bearing Reg.No. GA 01 U 2786 driven by A1 on Mysore deviation road and on account of A1 driving that Maruthi van in a rash and negligent manner, in front of Minerva mill gate, situated within the limits of Magadi Road Police Station, Bangalore, the bomb exploded and caused the death of A.2 and A.3 on the spot and grievous injuries to A1. The Maruthi van in question was completely blown into pieces. It was burnt and fully damaged apart from causing damage to 18 another maxi cab of one Ramanna PW.8 which was coming from the opposite direction driven by PW.1 Sadique who also sustained injuries in the same explosion.
9. It is further the case of prosecution that on 9.7.2000 at about 9.30 p.m. Police Inspector PW.58 of Magadi road Police Station, Bangalore received a message from the police control room to the effect that on Mysore deviation road a moving vehicle has been caught fire, some persons have sustained injuries and he should go over to that place immediately. Accordingly within about 5 to 10 minutes, PW.58 Police Inspector namely Shivappa Hadimani went to that spot along with his staff. By that time senior Police Officers were also present there. He saw a Maruthi van bearing registration No.GA 01 U 2786 having exploded and its remnant were spread on the road, three persons lying with burnt injuries, another maxi cab also being damaged and its owner viz., Ramanna PW.8 was present there. He took PW.8 Ramanna to the Police Station, recorded his 19 complaint as per Ex.P6 and on the basis of the same registered a case in Cr.No.290/2000 for the offence U/s. 304-A IPC and also under the provisions of the Explosive Act and sent FIR to the learned 3rd ACMM, Bangalore. Later he came to know that the injured Zakir and Siddique have died and another person by name Ibrahim was in an unconscious condition. Next day, i.e., on 10.7.2000 he conducted the spot mahazar, seized all the incriminating articles lying on the spot in the presence of the panchas, recorded the statements of witnesses, conducted inquest mahazar on the dead bodies of Zakir and Siddique and sent a requisition for subjecting the dead bodies for PM examination. On 10.7.2000 ACP, Chikpet, Bangalore, PW.59 took up further investigation of this case as per the direction of DCP, West and conducted the further investigation. On 15.7.2000 the further investigation of this case was handed over to COD, Bangalore. Accordingly on 15.7.2000 Sri M.B. Appanna, DSP, COD, Special Enquiry Squad PW.66 took up further investigation from PW.59 ACP Bawa and proceeded with 20 investigation. During the course of investigation the I.Os. searched the residential houses of all the above accused as well as their work places and recovered huge incriminating materials like books containing Deendar Anjuman organization literature, pamphlets, passports, letters addressed to in between accused persons as well as to their Guru namely Zia-Ul-Hassan, residing at Mardhan, Pakistan, information collected with regard to vital installations situated in Karnataka and other places, defence secrets, diaries maintained by some of the accused, computers including CPUs, mobile phones, scooter used in the commission of the offence, currency notes of various countries i.e., Pakistan, Phillipines, Saudi Arabia, India. The I.Os. also collected the ledger extracts of the bank accounts of some of the accused wherein the accused had made financial transactions inter se between themselves and had drawn certain amount in the ATMs situated in various places in Pakistan. The I.Os. also collected the details of the landline and mobile telephones of the accused, got retrieved 21 the information from the seized CPUs. through experts and obtained print outs and confirmed about collecting information regarding vital installations of India and also about E-mailing the said information to Mardan, Pakistan. They got all the seized incriminating articles found in the place of blast examined by FSL experts and confirmed that powerful explosive substances were used in preparing the bombs. They also arrested the accused persons on various dates produced them before the jurisdictional Magistrate, took them to police custody, interrogated them, recorded their voluntary statements and in pursuance of the same seized many incriminating articles at their instance from their respective residential houses as well as from their work places. Further, the investigation also revealed that all the accused got renewed their conspiracy in the house of A.1 at Varthur, as well as in the house of A.9 at Vijayanagar, Bangalore and they performed the acts of jihad, nifaaq and collected required fund through syria. The I.Os. further got translated the seized Urdu language documents into English 22 and Kannada. In view of this accidental explosion of bombs, the entire secret conspiracy meetings held by all the accused and the illegal activities carried on by the accused came to light. Thus, all the accused in furtherance of their renewed and continued conspiracy committed many grave offences, printed and circulated various books, pamphlets containing promotion of disharmony in between two major communities and also caused law and order problems in various religious places. Further, these accused persons without any valid license issued by the competent authorities, possessed, prepared bombs, transported them and got them exploded deliberately to cause loss of life and property. A1 knowing that the huge quantity of explosive substance which he was transporting in the Maruthi van if by accidentally or otherwise explode, it will cause death of persons, drove that maruthi van on the Mysore deviation road and caused the death of A2, 3, injuries to maxicab driver Sadiq PW.1, grievous injuries to himself and damage to the maxi cab of PW.8 Ramanna to the extent of more than Rs.250/-. A1 in 23 furtherance of the renewed and continued conspiracy made along with other accused in the case without any valid license or permit issued by any competent authority to manufacture, possess and transport the bombs and other explosive materials, transported them in the above said Maruthi van along with deceased A2 and 3 and caused it to explode in front of Minerva mill gate which resulted in the death of A.2, A.3, injuries to PW.1 Sadiq and damage to the maxi cab of PW.8. Thus A1 transported the bombs and explosive substances with unlawful object.
10. Thereafter, the I.O. obtained the necessary sanction order from the Police Commissioner, Bangalore to prosecute all the accused for the offences under Rule 5 of the Rules read with section 9-B of Explosive Act and also under Sec.5 of the Explosive Substances Act. They also obtained sanction from the Government of Karnataka to prosecute the accused persons for the offences under Secs.124-A, 153-A read with Sec.120-B IPC as required under Sec.196 Cr.P.C. The I.Os. 24 also made efforts to secure the absconding A7, 11, 12, 15 by obtaining arrest warrants against those accused persons and also got issued red corner notice to Interpol to secure them. But in spite of their best efforts their presence could not be secured since they were residing at Mardan, Pakistan. Therefore, as the investigation had been completed PW.66 DSP, Special Enquiry Squad, COD, Bangalore on 11.10.2000 submitted the final report against 18 accused persons in the Court of 3rd ACMM, Bangalore City, showing A.7, 11, 12 and 15 as absconding though A2, A3 had died in the blast that had taken place on 9.7.2000.
11. The learned Magistrate thereafter committed the case of these accused to the Court of Sessions, which on receipt of the records, secured presence of the accused and thereafter initially framed charges for the offences under sections 124-A, 153-A, 304, 337, 427 read with section 120- B of IPC and under rule 5 of the Rules read with section 9B of the Explosives Act, read with section 120-B of IPC and 25 also under section 3 of the Explosive Substances Act, read with section 120-B of IPC against the accused. Thereafter, during the trial, additional charges came to be framed for the offences under sections 121, 121-A of IPC to which the accused pleaded not guilty and claimed to be tried.
12. The prosecution in support of its case, in all examined PWs.1 to PW.67, got marked Ex.P1 to P298 and MOs.1 to
212. The accused during the course of examination of the prosecution witnesses got marked Ex.D1.
13. After the additional charges came to be framed, the prosecution did not lead any further evidence. On the other hand, the accused got recalled seven of the prosecution witnesses namely PWs.28, 46, 50, 56, 57, 60, 66 and cross examined them.
14. After closure of the prosecution evidence, the accused were examined under section 313 of Cr.PC. They denied all the incriminating circumstances that were put to them, 26 found in the evidence of the prosecution witnesses. Thereafter, they were called upon to enter on their defence and to lead any evidence that they may have in support of their case. The accused submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
15. The learned trial Judge thereafter on hearing the learned Public Prosecutor for the State and learned counsel for the accused and on considering the evidence and documents on record and also after examining various Judgments relied upon by the State and also counsel for the accused, came to the conclusion that the prosecution has established the charges leveled against the accused and accordingly by his Judgment and Order dated 21.11.2008/29.11.2008 convicted and sentenced the accused as aforesaid.
27
16. The accused being aggrieved by the Judgment and order of conviction and sentence, have preferred these two appeals.
17. The sum and substance of sentences imposed on the Accused persons is that the appellants in criminal appeal No.1202 of 2008 are subjected to death sentence along with other lesser sentence and appellants in Criminal Appeal No.39 of 2008, are sentenced for life along with a lesser sentence to run concurrently.
18. It is in respect of imposition of death sentence on the appellants in Criminal Appeal Nos.1202 of 2008, Crl. RC No.5 of 2008 under section 366 of Cr.PC by the learned trial Judge for confirmation of the death sentence.
19. Appearing on behalf of the appellants, Sri. Hashmath Pasha, learned counsel has addressed arguments in common in both the appeals as two appeals arise out of the very Judgment and only appeals are preferred in two sets, 28 one appeal by persons who have been imposed death sentence and other appeal by the persons who have been imposed sentence of imprisonment for life and lesser sentence and it is urged that the Judgment and conviction is not sustainable in law; that the learned judge of the trial court has not appreciated the evidence on record in a proper perspective; that the prosecution had never made good its version with any degree of acceptable and dependable evidence; that the evidence placed before the court by the prosecution was not worthy of acceptance and had suffered from various legal infirmities; that the very assumption that there existed criminal conspiracy was fallacious; that the prosecution failed to make good criminal conspiracy; that there was no fresh criminal conspiracy; that the facts and circumstances, based on which the accused persons are charge sheeted and put on trial were the very facts that had come to be urged and based on which on an earlier occasion, the accused persons except for A10 had been prosecuted in SC No.95 of 2001 on the file of the Additional Metropolitan 29 Sessions Judge for trial of Jubilee Hills Bomb Blast case - cum - Additional Family Court, Hyderabad; that all the accused persons except A10 had also been charged of the offence committing criminal conspiracy on the very set of facts punishable under section 120B of IPC in that court and in fact, SC No.95 of 2001 came to be concluded as per Judgment dated 22.11.2004 and the accused persons therein amongst whom figured all accused in the present case, except A10 and who have all been arrayed as accused in SC No.423/2005 had already been convicted of this offence and therefore trying the convicted accused for the very offence and on the very set of facts is not only violative of Article 20(2) of the Constitution of India but is a clear infraction of provisions of section 300 of Cr.PC.
20. Submission of Sri. Hashmath Pasha, learned counsel for the appellants on this aspect is that the conspiracy if at all is one conspiracy and there are no different conspiracies and a conspiracy once it is implemented or aborted, comes 30 to an end and therefore in respect of same set of facts and on the same evidence, the question of prosecuting the appellants - accused and convicting them for the offence under section 120-B of IPC is not sustainable in law and therefore conspiracy theory is totally an untenable and unsustainable version of the prosecution and once conspiracy theory fails, other consequences also cannot follow etc., is the submission.
21. Mr. Pasha has submitted that the Judgment in SC No.95 of 2001 before the Court at Hyderabad having been brought on record by the prosecution themselves during the stage of the charge, it is a Judgment contents of which may have to be necessarily looked into and at any rate enable the appellants to make a reference to that judgment and on such premise urge legal contentions as above.
22. In support of the submissions, Mr. Hashmath Pasha, learned counsel for the appellants has placed reliance on the following decisions:
31
[a] 'DIRECTOR OF PUBLIC PROSECUTIONS v. DOOT AND OTHERS' reported in 1973 HL (E) 807; and [b] 'STATE OF TAMILNADU' v. NALINI AND OTHERS' reported in AIR 1999 SC 2640
23. It is also submitted by Sri. Hashmath Pasha that the facts as brought out by the prosecution in SC No.95 of 2001 before the Court at Hyderabad being the same facts and the evidence also substantially being the same evidence as is referred to and relied upon by the prosecution for proving their case in SC No.423/2005 before the Bangalore Court though the appellants had not been charged with some of the offences such as offences punishable under sections 121, 121-A of IPC, the facts being the same and evidence relied upon by the prosecution being the same, the argument equally holds good in respect of conviction of the appellants who have been convicted of the offence punishable under these two provisions respectively.
24. In support, reliance is placed on the Judgment of the Supreme Court in the case of 'KOLLA VEERA RAGHAV RAO 32 v. GORANTLA VENKATESWARA RAO & ANOTHER in AIR 2011 SC 641.
25. This apart, it is also submitted that the evidence let in by the prosecution in the Judgment under appeal does not in any cogent manner substantiate the version of prosecution against the appellants and it is submitted that even the prosecution case is not that the appellants - convicted accused had caused any disruptive activity by resorting to any acts of terrorism or such disruptive activity as the blast that had occurred in the van which was being driven by A1 and the blast in the van was only an accidental blast and it was not at any place of worship or intended to cause any loss of life or property or injury and therefore also the conspiracy theory and based on such conspiracy theory, the charge of committing offences punishable under the other provisions cannot be sustained.
26. It is the specific submission of Sri. Pasha that it can never be made good that in respect of an accidental blast, 33 the ingredients of the provisions of section 121 of IPC can be present or found. In fact, without conceding Mr. Pasha, learned counsel submits that in a case of accidental blast, at the best, what one can infer of the possibilities are that it can be a case for conviction under section 304A and 337 of IPC and in view of the possession of explosive substances, a case of possible offence under section 5 of the Explosive Substances Act, 1908 and section 9[B] of Explosives Act, can be made out but nothing else.
27. It is therefore submitted that with A2 and 3 who had perished in the accidental blast and none of the other accused appellants having any link or any evidence to link them up to even the explosive substances found in the van and which had exploded accidentally, the offences punishable under the provisions referred to above can never be attributed; that the conviction is not sustainable and therefore it is required to be set aside.
34
28. Mr. Pasha, learned counsel for the appellants also submits that the prosecution has heavily relied upon the evidence of PW.46 - Abdul Gafoor for the purpose of not only making good the conspiracy theory, but apart from the quality of the evidence let in by the prosecution through this witness, as already noticed, the evidence having already been examined by the court at Hyderabad in S.C. No. 95/2001 earlier in respect of the accused appellants except for A10, cannot be pressed into service for conviction once more on the same evidence and on same set of facts.
29. With regard to additional charges framed for conviction punishable under sections 121 and 121-A of IPC is concerned, Mr. Pasha has very strongly urged that the charge i.e., the additional charge for trying the appellants in respect of these offences is hit for want of sanction as the prosecution had not obtained sanction contemplated under section 196 of Cr.PC before launching the prosecution against the appellants for the offences punishable under 35 sections 121 and 121-A of IPC. It is submitted that the prosecution though might have obtained sanction earlier for the offences punishable under sections 124-A and 153-A of IPC, such sanction cannot be pressed into service for the purpose of holding that there was sanction for framing additional charges punishable under sections 121 and 121- A of IPC as the basic requirement under section 196 of Cr.PC for offence punishable under Chapter-VI of Cr.PC had not been fulfilled as such sanction should be obtained in respect of each individual offence punishable under sections 121 and 121-A of IPC as it constitutes different offences and it is not in dispute that sanction had not been obtained from the competent authority with reference to these statutory provisions for prosecuting the appellants.
30. Our attention is drawn to Ex.P181 to submit that sanction order does not specifically speak of permission for prosecuting the offence under section 121 or 121-A of IPC. In support of submission relating to the trial being vitiated 36 for want of sanction, Mr. Hashmath Pasha, learned counsel for the appellants has placed reliance on the Judgment of the Privy Council in the case of 'GOKULCHAND DWARKADAS MORARKA v. THE KING' reported in AIR 1948 PRIVY COUNCIL 82.
31. Reliance is also placed on the Judgment of the Supreme Court in the case of 'THE STATE OF RAJASTHAN v. TARACHAND JAIN' reported in 1973 SCC [CRL] 774 and Mr. Pasha, learned counsel points out that though it was open to the prosecution to have made good the lacuna of want of sanction, particularly, as in this case, additional charges have been framed in respect of the offences punishable under sections 121 and 121A of IPC, towards the fag end of the prosecution closing its case and evidence, and the prosecution having not placed any additional material before the court to show that the facts constituting the additional material for sanction of the prosecution was either already before the sanctioning authority or it was 37 subsequently placed before the authority insofar as the additional charges in respect of the offences punishable under sections 121 and 121-A of IPC are concerned being without a valid sanction, trial gets vitiated in respect of these charges and conviction does not sustain.
32. This is specifically made a ground with reference to the evidence on record as submission of Sri. Pasha, learned counsel for the appellants is that the additional charges have been pressed into service and in fact framed by the learned Sessions Judge only with reference to Ex.P260 which was admittedly not a material that had been placed before the sanctioning authority nor any statement or information being given by PW.46 having been placed before the sanctioning authority and such vital material according to the prosecution, having not been placed before the sanctioning authority, there is no sanction in respect of the offences punishable under section 121 and 121-A of IPC. 38
33. With reference to Ex.P260 which is according to the prosecution the extra judicial confession by one of the accused - A8, submission is that the manner and circumstances under which it has been brought into existence by the prosecution and has been produced or brought out by the prosecution during the trial stage, there is considerable doubt and suspicion about its genuineness and at any rate about acceptability of the same.
34. It is pointed out that even though according to the prosecution the letter written by A.8, while he was in judicial custody at Central Prison, Bangalore, which is addressed to the III Additional CMM, Bangalore, and the narration is so very lengthy, the description of the events and dates and it is highly unbelievable that A.8 would have written the entire narration on his own. He pointed out that in his examination, the accused has specifically indicated that he has been pressurized/induced by the jail officials and the Investigating Officer.
39
35. It is also pointed out that Ex.P.260 being not in accordance with the Provision of Section 164 of Cr.P.C. assuming that it could have been taken as a confessional statement of an accused, it cannot be relied upon. Apart from the legality of the manner, in which, it is sought to be relied upon, since it is sought to be stated in the confession statement, it is also pointed out that the contents of the same indicate, it is not a confession of A-8 out of remorse and regret, but one which had been tendered for bargaining the pardon, which is obvious on reading the concluding part of the narration of Ex.P.260, which reads as under:
40. Sir, I am last 31 and ½ years of my service, I am one of the hard worker and disciplined soldier, but all these things have done in half knowledge and blind belief in gurus, sir, what I have done was not for any minority or for name. Now I came to know (I am a example) the person who have half knowledge and blind belief is how much danger. Sir, my service documents shows my behaviour, as documents are very clean and annual confidential report shows, I am always a hard worker and obedient to my seniors.
I was topping in section, in my annual confidential report.
40
41. Humble Sir, I am requesting, begging you sir, please give me a chance to prove me that, m proud son of my mother land and good soldier. Sir, I am requesting your Honour, please pardon me for my family at least to give me a chance to rectify my deeds and promise you I will not indulge in any anti National activities, my lord, please pardon me.
36. It is also submitted that Ex.P.260 does not qualify as a confessional statement within the expression and for the purpose of Section 10 of the Indian Evidence Act, 1872 [for short, the Evidence Act] and therefore, cannot be given the status of the confessional statement within the scope of Section 164 of Cr.P.C. and also being hit by the provision of Section 24 in the sense that it was not either voluntarily or freely made by A.8, it has no evidentiary value for securing conviction either against A.8 or as against the other co- accused persons, as it is not the material which qualifies for its acceptability under Section 30 of the Evidence Act.
37. Mr.Pasha with reference to the evidence of PWs.65 and 66 particularly, the witnesses examined only for marking the 41 documents, the said two witnesses having not spoken about the contents in the statement and the contents of P260 having not been proved, particularly, by not examining the person to whom the letter was addressed to, namely the Magistrate, the contents cannot be looked into to conclude that, it is in the nature of a confessional statement by 8th accused person.
38. Mr.Pasha has placed reliance on the following judgment to make good this point namely, in the case of NARBABE DEVI GUPTA VS. BIRENDRA KUMAR JAISWAL & ANOTHER [AIR 2004 SC 175] submits that just because the document is marked, does not in any way amount to proving the contents. Further reliance is also placed on the decision of privy council in the case of NAZIR AHMED VS. KING EMPEROR [AIR 1936 PC 253], in the case of IBRAHIM VS. EMPEROR [AIR 1937 LAHOR 208] and also the judgment of the Supreme Court in the case of STATE OF UTTAR PRADESH VS. SINGARA SINGH & OTHERS 42 reported IN AIR 1964 SC 358, to submit that if the procedure as contemplated under Section 164 of Cr.P.C. has not been adhered to or followed, it cannot be given the status of confessional statement within the scope of this provision.
39. Mr.Pasha submitted that Ex.P.260 does not qualify for its acceptability under any other enabling statutory provision of the code of criminal procedure or the Evidence Act and therefore, it cannot be said that the prosecution has proved this document, which is the case as against the convicted appellants.
40. Even with reference to the contents of Ex.P.260, submission of Mr.Pasha is that the contents of Ex.P.260 at best can be used by the prosecution for the purpose of its theory of conspiracy and not any further in the sense, for commission of any acts in furtherance of the conspiracy and that the person is not aware of the subsequent developments etc., It is the submission of Mr.Pasha that the very 43 document having been marked as Exs.P.246 to P.250 in S.C.No.95/2001 before the Sessions Court at Hyderabad, it cannot be again relied upon and used as evidence either for proving the offence Section 120-B IPC for the present case or in respect of other offences.
41. With reference to the evidentiary value of deposition of PW.46, first and primary objection raised by Mr.Pasha is that the deposition of this witness clearly indicates that he had a role and actually participated in all the meetings of the members of Deendar Anjuman Organisation and that he has revealed the information and the decision that took place in those meetings whether held at Hyderabad or at other places and if at all was very much part of the conspiracy and stood in the position of an accomplice in the conspiracy.
42. Submission is based on the premise that the witness, who is cited as a witness, in fact should have been arraigned as an accused person and if he is an accused, the question of his testimony being made use of either against any of the 44 appellant, convicted persons or other persons, cannot arise. It is submitted that if PW.46 was in the position as an accused, he could not have either testified against himself or against other accused persons and the prosecution, just because he has not been arraigned as an accused in spite of material being available, the evidence of this witness cannot be put on par with the evidence of any other witness, who has testified in support of the prosecution case.
43. It is submitted that if PW.46 should have been arraigned as an accused, then unless the prosecution had obtained the permission of the Court for pardoning the accused within the scope of the provisions of Sections 306 and 307 of Cr.P.C., there was no way for such a person giving evidence before the Court and the prosecution having not resorted to this course of action, but on the other hand, deliberately having opted not to arraign him as an accused, but at a later stage of trial, through an application filed under section 311 of the Cr.PC to examine him as witnesses 45 in support of the prosecution case, is virtually an over reaching act for bypassing the statutory requirement in terms of provision of Sections 306 and 307 of Cr.P.C.
44. It is also his submission that it also amounts to the Investigating Officers virtually exercising the power of the Court or usurping the power of the Court under Sections 306 and 307 of Cr.P.C., which is not permitted in law and therefore, no reliance could be placed on the evidence of this witness. In support of his submission, Mr.Pasha placed reliance on the judgment of the Supreme Court in the case of P.SIRAJUDDIN VS. THE STATE OF MADRAS reported in AIR 1971 SC 520, wherein the Supreme Court observed as under:
"26. In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate. It was rightly pointed out by the High Court.
Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognizes the immunity from prosecution given under these 46 assurances and that the grant of pardon was not in the discretion of police authorities."
and also the judgment of HARSHAD S. MEHTA VS. STATE OF MAHARASTRA reported in 2001 SCC (CRI) 1447, particularly as discussed in para 13 of this judgment.
45. It is submitted that the prosecution has deliberately avoided the status of an accused to this witness and he has been styled as a witness in violation of Sections 306 and 307 of Cr.P.C. Submits that his (PW.46) evidence should not be accepted as a valid piece of acceptable oral evidence. In this regard, Mr.Pasha also pointed out that so called statement made by PW.46 under Section 164 of Cr.P.C. before the Magistrate, Hubli, was in connection with Sessions Case Nos.580 & 579/2003 in the case of State of Karnataka by Keshavapura Police, Hubli Vs. Syed Muneeruddin Mulla & Others, being not brought on record, in the manner permitted in law, in the present case, the deposition of PW.46 does not elicit acceptability. It is also the submission 47 of Mr.Pasha that PW.46 in fact had been arrested by the Hubli Police and was in police custody for more than two months and it was during such period, the statement had been recorded under Section 164 of Cr.P.C., but it is also not brought on record in this case by the prosecution.
46. It is the submission of Mr.Pasha that except for PW.46, no other independent witness has supported the prosecution theory of conspiracy and the evidence of PW.46 being so suspicious and not trustworthy and being hit by the statutory provision, the conspiracy theory is not made good by the prosecution and it is not acceptable as cogent evidence. Therefore, also it is submitted that apart from the legal infirmity, the conspiracy is not made good by the prosecution on acceptable cogent evidence.
47. Mr.Pasha has also made submission regarding the quality of the evidence, which the prosecution has let in through PW.28 - P.N. Mukunda, a witness who has 48 identified A-1, and who has deposed that he had seen A-1 and two others as the occupants of the Maruthi Van in which the explosion took place on Magadi Road; that he had seen the van and the three persons in the vicinity of church in Jagajeevanram Nagar, where in also a bomb blast took place rudely disrupting the festivities going on in the church on that day and even with regard to the evidence brought on record through PW.46 that the entire evidence does not reveal the existence of any conspiracy amongst the accused persons in respect of the incident with reference to which, the prosecution has launched S.C.No.423/2001.
48. He further submits that the evidence does not contain any reference to the incident that has taken place at Magadi Road, Bangalore in front of Minerva Mill Gate, in a Maruthi Van in which an explosive exploded and in which, A.1 was travelling.
49. Mr. Pasha also pointed out that with reference to the evidence of PW.28, by name Mukunda, a worker in a 49 provision store near St. Peter and Paul Church at J.J.Nagar and in his deposition, he has stated that he had seen A.1 and A.3 moving in the Maruthi Van, in which, the blast took place at Magadi Road and that he having seen them with Van being parked near the Church, two persons were seen, one carrying a bag going inside the Church and returning and also informing the other one that job is accomplished and then the van was driven away, is a piece of evidence, which is to say the least most fantastic, as even according to the prosecution, it was a festival day and thousands of people had gathered, he had been to the provision store to attend his work and it is not indicated as to how he could have watched all these accused persons. He also pointed out with reference to the testification of A.1 by this witness that for the purpose of identification, A.1 had been brought on a wheel chair and there was no identification independently as the accused was the only person, who was in a wheel chair, who was an injured person and therefore, it was a give away.
50
50. Submission of Mr.Pasha is that, the version is neither believable nor identification is properly proved and therefore, the evidence of PW.28 cannot be accepted. It is also further pointed out that at any rate this evidence does not advance the case of the prosecution insofar as the blast at a different place is concerned and the blast being accidental in nature, cannot link up as an intended act of support to any offensive act with which the accused are charged.
51. Mr. Pasha, learned counsel for the appellant has contended that, even while the prosecution has placed heavy reliance on the evidence of PWs.28 and 46 to make good their case before the Court and also Ex.P-260, the other oral and documentary evidence including the mahazars are either not relevant or not fully proved, because the mahazar witnesses have turned hostile and also because the evidence is not fully proved as of acceptable quality. 51
52. Mr. Pasha, points out that the prosecution has searched the residence of A.1 and had seized articles found in terms of Ex.P-7 mahazar drawn on 10.7.2000 at the residence of A.1. It is pointed out that though the mahazar is supported by the testimony of Investigation Officer, PW.59 and panch witness, PW.12 and attributable recoveries of MOs 4 to 69 submits with reference to the contents of MOs 11 to 69 is that there is no incriminating materials in the seizure either to incriminate A.1 of the theory of conspiracy or for the offences punishable under Sections 121, 121A, 124A, 153A r/w 120B of IPC.
53. As already pointed out except the possible possession of explosive material by A-1, other accused persons cannot be linked to any other recovery even with reference to the material Ex.P-7 mahazar.
54. With reference to the mahazar drawn at the place of occurrence of the blast that has taken place in respect of Maruthi Van bearing No.GA-01-V-2786 at about 9.30 p.m. 52 on 9.7.2000, at Magadi Road, in front of Minerva Mill Gate, it is pointed out that when the blast has taken place on the previous day between 9 to 9.30 p.m. mahazar was drawn on the next day between 3 to 5 p.m. and what is more important to point out is that this mahazar has been drawn after the drawing of the mahazar Ex.P7 at the house of A1 in the morning.
55. Submission is that recoveries made with reference to the mahazar drawn in the place of blast cannot be accepted on its face value and particularly the recovery of burnt pamphlets containing the slogans as per MOs 2 and 3 - warning Christian missionaries to stop conversion or quit India, which material cannot be believed for the reason that even according to the prosecution, the blast was so severe and due to explosion of bomb, the possibility of combustible substance like the pamphlets MOs 2 and 3 surviving is highly doubtful and therefore, the recovery of such material cannot be accepted on its face value, but it is suspicious. 53
56. It is also submitted that even from the evidence of PW.58, the First Investigating Officer who has admittedly visited the scene of occurrence on the very night on receipt of the message through the control room and who has also made arrangement to put some watch and ward, later on, at the scene of occurrence having not noticed such incriminating materials at that time, but the same having been recovered much later is also a suspicious circumstance to accept the recovery of MOs 2 and 3 as a genuine recovery, to be proved against the accused appellant.
57. Mr. Pasha, with reference to the evidence of PW.11 - H.R.Reddy, Police Sub-Inspector, who had informed about the occurrence through the control room on his noticing the incident, while he was on his way to his residence from his work place and he having not spoken anything about the existence of such pamphlets as MOs. 2 and 3 also, submits this also raises doubt about the genuineness of the recovery of this material from the spot under Ex.P-1. He also 54 submitted that other police officials as PWs 4 and 5 also had visited the spot and they also having not noticed the existence of such material or having deposed about the same and more so, PW.3 being a mechanic, who is a panch witness for Ex.P-1 and who has visited the spot on the day of the incident also having not noticed the existence or availability of MOs 2 and 3, all these circumstances create doubt and suspicion about the recovery.
58. Even the fact that PW.2 had in fact identified A.1, who had visited the spot on the previous day of the occurrence having not noticed and having not mentioned anything about the existence of MOs 2 and 3 and in these circumstances, it creates considerable doubt about the recovery, is the submission of the counsel for appellant.
59. With regard to the mahazar drawn at the work place of A.9 and A.17 i.e., the factory premises of the BEML, Bangalore and mahazar Exs.P-13 and 14 drawn within the factory premises of BEML and the recoveries made therein, 55 Mr. Pasha has submitted that these mahazars are not fully in consonance with the requirements of the law and the recoveries are also not without any doubt or suspicion.
60. With reference to Ex.P-13, under which recovery of material object Exs.P-110 to 146 had been made at the instance of A.17 as per the mahazar drawn on 29.7.2000 submission of Mr.Pasha is that this recovery does not in any way point an accusing finger or reveal incriminating material against A.17 for making out offences with which the accused has been charged. Except for MO.142 which is again the pamphlets is in the nature of MOs 2 and 3 all other material put against accused, Mr.Pasha submits is literature relating to the Deendar Anjuman Organisation and its objects and principles and further submits that mere possession of the said literate does not in any way amounts to commission of any offence more so of the nature of offences with which A.17 has been charged.
56
61. With reference to Ex.P-14 mahazar drawn on 3.8.2000 at the workplace of A.9 and said to be at the instance of A.9, the recovery of MOs 148 to 153 particularly, the floppies said to have been recovered from the drawer in the control of A.9, what is pointed out by Mr.Pasha is even as per the evidence of PW.19 G.Vishwanath, who was the General Manager of BEML, Bangalore and who is a panch witness for Exs.P-13 and P-14 and who has identified A.9 and A.17 as employees of BEML and seizure of MOs 110 to 147 at the instance of A.17 and MOs 148 to 153 which were at the instance of A.9, he had also deposed that the drawer of A.9 and cupboard of A.17 had been sealed by security officer of the factory, On learning about the involvement of the employees of their factory as on 23.7.2000 when A.9 was arrested by the police and the same had become known to the employer through newspaper and about the arrest of A.17 on 27.7.2000 which also the employer has learnt and therefore, the security officer has sealed the drawer and cupboard of A.9 and A.17 respectively, but the mahazar 57 drawn as per Ex.P-13 and P-14 does not necessarily indicate the seal put by the security official had been opened by the security official before recoveries were made and therefore, the submission is that if the seal was not in tact and developments have taken place in between the date of mahazar and the date of seal being put by the security official of the factory, the recoveries become doubtful and suspicious. He submitted that the material recovered being such that they can be placed by any one and the contents of the mahazar expressly having not indicated the position, it cannot be said that the seal had not been broken earlier. One other circumstance pointed out by Mr.Pasha is about the genuineness of the mahazar and the recoveries by the Investigating Officer. PW.66 who had accompanied A.9 and A.17 on the dates of the mahazar and when it is the practice and rule that all visitors to the factory and particulars noticed at the factory gate/entrance by the security, such an entry is not found in respect of PW.66 and is therefore yet another circumstance to doubt the recovery in the presence 58 of PW.66 along with accused at the place where the mahazar has been drawn recoveries become doubtful in the absence of corresponding entry made in the security book maintained in the factory up to date. This position also having been revealed in the evidence of PW.19 is a circumstance which creates doubt about genuineness of the mahazar and recoveries and therefore, not much credence can be attributed to the recoveries through these mahazars.
62. It is contended with reference to the mahazar dated 23.7.2000 drawn at the residence of A9 and the recoveries under this mahazar viz. MOs 169 to 185, that the recoveries does not necessarily constitute incriminating material to demonstrate the commission of offences which are urged with by A9; that the material objects do not necessarily link up to one another; that the pocket diary of A9 containing telephone number and photo of A1 and also e-mail ID of A8 mentioned in the dairy by themselves does not make out a case of the commission of the offence with which the 59 accused has been charged; though the panch witness PW57 Jaganath has supported the recoveries. The recoveries by themselves do not constitute any incriminating material. The prosecution cannot be said to have been made good their case through the recoveries made in the residence of A9. Even with reference to the contents of Ex.P177 particularly the prosecution having placed reliance on the contents in this mahazar to indicate that A9 had pointed out to the panchas the place where himself and other accused persons sat for discussion to chalk out the future course of action and the discussion about testing the bombs etc. are all in the nature of confessional statement, but not a confession statement made by the accused to any person much less within the scope of Section 164, but in the form of narration by three persons and incorporated into the mahazar. It is therefore, submitted that such contents which are not proved have no evidentiary value and at any rate the so called discussion relating to the future course of action amounting to conspiracy against the persons 60 including A9 cannot be accepted as it is more in the nature of hear-say evidence and the contents have not been subjected to scrutiny of cross examination of any person testifying to the same i.e. contents of the mahazar and therefore, submits that what cannot be achieved directly cannot be permitted to be achieved indirectly and much reliance cannot be placed, on such version in the mahazar.
63. Even with reference to Ex.265 which is said to be in the handwriting of A-16 and which according to the prosecution is in a coded language containing material relating to the acts of sabotage intended by the accused persons and relating to distribution of work planned by the accused persons and to be carried out by different persons for whom such responsibilities are entrusted it is submitted by Mr Pasha that neither it is a document which is proved nor it is shown to be in the hand writing of A16. It is submitted that mere recovery of such a chit of paper by itself cannot amount to and even assuming that it is opined by 61 the hand writing expert that Ex.265 is in the hand writing of A16, that will not in any way constitute material to incriminate A9.
64. More particularly, Mr.Pasha submitted that assuming for argument sake there is some material, such material does not constitute either primary evidence or basic material for securing conviction and contends that it is a well accepted legal principle, that it is in the nature of weak evidence which by itself cannot achieve the object of securing conviction, against accused.
65. Even with regard to the mahazar drawn at the office of the COD and said to be for the purpose of retrieving the contents of floppies said to have been recovered under Ex.P14-mahazar and to take out hard copies of the information containing in the floppies, submission is that the stand of the prosecution that the information retrieved is of confidential nature that it had been clandestinely obtained through A8 and passed on to A7 is not made good; 62 that it is also not proved by the prosecution that the information contained in the floppies are information in the nature of secret and confidential information not otherwise available to the general public and therefore, the services of A8 in Air force personnel had been employed is not tenable as the information relating to existence and the number of defence establishment is an information even otherwise available and more importantly it is pointed out no one has been examined to indicate that the information contained therein is a very confidential information which is not otherwise available to the general public and therefore, the accused persons have been availing the services of A8 and transmitting information to A7 in Pakistan. Submission is, the information is neither confidential nor has any one testified to that effect and even transmission to A7 in Pakistan is also not made good by placing any cogent material.
63
66. Even with regard to the retrievals the contents said to have been in the floppies and as retrieved to the print outs which is got done through Venkatesh, Computer Expert, submission is, that this computer expert is not examined to make good that the hard copies are the retrievals from the floppies which had been earlier seized from the drawer of A9 and the material so retrieved cannot be accepted as evidence for the reasons that it is not within the scope of Section 65A of the Evidence Act. For not complying with the requirement under Section 65B of the Evidence Act, the retrieved contents having not been proved in accordance with the requirement of law, no reliance can be placed on it. In support of his submission Mr.Pasha has placed reliance on the following decision in the case of R V MINORS vs R V HARPER [(1989) 2 ALL. ER 208] holding that unless the computer from which the print out is taken out is certified to be as an electronic instrument, which is functioning with accuracy and certified to be so by an expert. Admissibility of documentary record said to be retrieved from such an 64 electronic device cannot be accepted or admitted more so in the absence of supporting oral evidence of the person, the expert testifying about the accuracy of the information retrieved and the proper functioning of the electronic device from which it is retrieved.
67. Reliance is also placed on a Single Bench decision of Kerala High Court in the case of M PERUMAL vs M/S. STAR TOURS AND TRAVELS (INDIA) LTD.. reported in 2010 CRL.LJ 3732. It is particularly pointed out by the learned Judge of the Kerala High Court that the evidence relied upon by the respondent in that case having not been made good by fulfilling the conditions stipulated u/s.65-B(2) nor a certificate as required under Section 65B(4) of the Indian Evidence Act, 1872 [for short, Evidence Act]. No reliance can be placed on the document which was exhibited in that case in support of the claim of the respondent.
68. Mr Pasha submits this requirement having not been fulfilled the contents of the retrieval from the floppies 65 does not constitute material of evidentiary value for the purpose of proving the prosecution case.
69. Insofar as A10 is concerned, submission of Sri.Pasha, learned counsel for the appellant, is that though his home was searched and Ex.P9 Mahazar was drawn at his house, and recoveries as per MO's 87 to 94 is made, except for MO87 which is again a pamphlet containing the same slogan of Christian Missionaries to stop conversion or quit India, all other material objects are in the nature of books or literature regarding the Deendar movement as also the general literature relating to religion and such other subjects. What is pointed out is that the recovery does not reveal any incriminating material against A10 either for having participated in any conspiracy or for taking part in any act which constituted evidence for which he has been charged. On the basis of such general material recovered during search at the house of A10, no conviction can be secured by the prosecution is the submission.
66
70. Even Ex.P262 voluntary statement of A10 and similar voluntary statements of other accused do not constitute acceptable evidence and the statements having not resulted in the recovery or revelation of a fresh fact, within the meaning of Section 27 of the Evidence Act, the contents cannot be accepted for evidentiary value. The decision of privy council in the case of KOTTAYA vs EMPEROR reported in AIR 1947 PC 67 and the principle laid down therein is strongly relied upon and this principle having been consistently followed in full is point out. Mr Pasha has submitted that marking of Ex.P262 is of no avail for proving anything against A10 and therefore, contended that there is absolutely no incriminating circumstance or material made good by the prosecution as against A10.
71. Mr.Pasha also submitted that even mahazar Ex.P273, drawn at the residence of A8 which is in Gurgoan, Haryana resulting in the recovery of MO's 188-202, and the argument is that no incriminating material having been recovered nor 67 made good and even with regard to a sum of Rs.50,000/- cash that had been seized, the investigating officer being satisfied with the legitimacy of its origin to the wife of A8 as it represented the sale proceeds of agricultural land which had been disposed of by A8.
72. It is also pointed out that MOs 196 - 197 which are the photos of Chand Siddique and 198- Zia Ul Hassan- A7 and MO199- invitation card for the URS being conducted at Hyderabad; that these MOs by themselves do not constitute any incriminating material as against A8 except perhaps to show that he is also a follower and patron of Deendar movement.
73. Even with regard to Ex.P260 Mr Pasha has submitted that the prosecution has placed reliance on this document as a confessional statement of A8 submission is, though this was mentioned to A8 for the purpose of recording statement u/s.313 Cr.P.C, nevertheless the contents of Ex.P260 having not been explained or put to the accused persons and its 68 effect also not having been properly explained to the accused persons, it is submitted that it is not the manner of recording 313 statement as the circumstance which are revealed for accepting this document has never been explained to the accused nor the material which constituted incriminating material against A8 was explained and therefore, the acceptability of the contents of Ex.260 is again hit as not adhering to requirements of 313 Cr.P.C. It is submitted by Mr.Pasha that insofar other accused, who have been found guilty other than A8 are concerned; that the contents of Ex.P260 having not been made known to other persons it is a case of clear violation of provisions of Section 313 as there is no presumption as against other accused other than A8 about the contents of the same. Even assuming for the argument sake A8 did know the contents of the same, Mr.Pasha has also placed reliance on the authority of the ruling in INSPECTOR OF CUSTOMS, AKSHINOOR, J & K vs YASH PAL [2009 CR.L.J. 2251], 69 wherein in Para 22 it is stated as under; while discussing the object and scope of section 313 of Cr.PC.
"At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."
74. With regard to recovery made under ExP12 is concerned, viz., seizure of one computer comprised of CPU, monitor, modem, keyboard and mouse, what is submitted by Sri Hashmath Pasha, learned counsel for the appellants, is that the so-called password for sending e-mails from this computer and in a new account viz., email id:
hsdchandrashekar and password moonforehead is again 70 because of the statement attributed to A-17 as per the contents of the mahazar and in the nature of a confession, admitting that that was the very computer which was being used for sending emails to Pakistan using the email id:
hsdchandrashekar and password moonforehead and a recording of this nature is not a confession through the contents of the mahazar and cannot constitute as admissible evidence against the accused persons.
75. Even with regard to the seizure of scooter said to be belonging to A-1 and which was parked besides the house of A-17, submission is that from the boot of the scooter, recovery of Xerox copies of registration particulars of Maruti van which was involved in the blast in Magadi road at Bangalore is not an acceptable recovery, as the mahazar drawn earlier at the very house of the accused person on 15- 7-2000 has not revealed anything about the scooter being present near the house of A-17 and so also the location or placing of a computer under a cot in the house of A-17. It 71 is submitted that recoveries under the mahazars and the contents therein are highly suspicious and do not constitute acceptable material and even otherwise the contents of the mahazar which is in the nature of a confession recorded [ExP271] by the investigating officer - PW66 - in the presence of panchas cannot constitute material evidence or incriminating material to find guilt against the accused in respect of the offences with which they are charged. ExP271, which is marked as a sequence in the nature of voluntary statement recorded by the investigating officer is not proved in the manner required under Section 27 of the Evidence Act through discovery of any new fact, as a sequel to the information leading to drawing of mahazars and the recoveries.
76. Sri Hashmath Pasha also submitted that rest of the mahazars drawn by the investigating officer in the presence of panchas pursuant to the information given by either A-9 or A-10 and at any other place are of no consequence, as no 72 incriminating material as either being recovered or seized which constitute an offence against the accused persons and therefore the searches and the consequential mahazars drawn were of no consequence. It is also submitted that in fact such places having already been searched by the Hyderabad police in connection with SC 95 of 2001 tried before a Hyderabad court, a second or third search on the same premises yielding anything or not yielding anything is of no significance or consequence.
77. It is therefore, submitted by Mr.Pasha that the prosecution has not at all made good its version of the accused persons being guilty of the charges of the offence with which they are charged, either as they are acceptable factual material or as acceptable material as envisaged in law and on the other hand, material placed by the prosecution before the trial Court being vitiated due to infraction of many statutory provisions as noticed above the convictions cannot be sustained; that it requires to be set 73 aside and at any rate in a matter of this nature, the benefit of doubt always enures to the accused and not in favour of the prosecution and even if the material placed accepting some part of it is constituting some material, being not in the nature of a foolproof material and therefore, the prosecution having not proved its case beyond reasonable doubt the accused should be given benefit of doubt by this court and accordingly, the judgment and order be set aside and the accused persons should be acquitted of the charges of committing offences with which they are charged.
78. Without prejudice to the above contentions, Sri Pasha has also put forth an alternative submission to submit that the material on record accepting it at its face value, at the best, can constitute an offence as against A-1 alone, who was found driving the Maruti van in which explosive substances were carried and the explosive substances having accidently blown up because of rash and negligent driving and due to vibration and impact on the explosive 74 substances during such driving, the circumstances may, at the best, reveal commission of offence punishable under Section 304A, 337, 427 IPC and under Section 5 of Explosive Substances Act, 1908 and Section 9B(1)(b) of the Explosives Act, 1884. It is submitted that assuming that for arguments' sake, without conceding that the prosecution has made good the commission of offence punishable under these provisions by A-1, the maximum punishment that can be imposed on him is 10 years RI under Section 5 of the Explosive Substances Act as it existed at the relevant point of time, though the section has been amended with effect from 1-2-2002 to provide for a maximum punishment up of imprisonment for life, that being not applicable to the case on hand, as the incident alleged being of the year 2000, A-1, on the basis of being found in possession and transportation of an explosive substance and also causing death of A-2 and 3 by careless and negligent driving can, at the best, be punished by imposing a maximum sentence of 10 years RI and with the A-1 having already been in prison for much 75 more than this period from the date of his arrest and in such circumstance, having regard to this and the present physical condition of A-1, Sri Pasha submits that the punishment imposed or impossable under these provisions, particularly under Section 5 of the Explosive Substances Act, may be for the period of imprisonment already underwent by A-1, as A- 1 has been in prison after his arrest for more than 12 years as of now, he may be given set off for the period of imprisonment he underwent be sufficient as against such imposition of punishment and accordingly he may be released.
79. Countering such submission made by the learned counsel for the appellants, Sri H N Nilogal, learned SPP has very strongly urged that the prosecution has made good its story with as good evidence as is possible in the circumstance; that even it is judicially noticed that the conspiracies are hatched in secrecy and that such kind of conspiracies can never be proved through direct evidence to 76 make good the offence; that the material placed by the prosecution in the form of evidence, oral and documentary, was good enough to secure conviction of the accused persons for the offences with which they have been charged; that the fact that they are all members of a religious sect namely Deendar Anjuman Organization; that they have a strong belief and faith in the movement of their organization; that periodic meetings held by the followers of this organization not only at Hyderabad but also at other places viz., Batkurki and Bangalore, are all circumstances made good by the prosecution and the accused persons' involvement in not only the meetings but also connecting them to the follow up action and incidents that have come into light being made good by the prosecution, it cannot be said that the prosecution has failed to prove its case before the court. It is, therefore, urged that the judgment under appeal is to be sustained.
77
80. With reference to the nature of the organization and to understand and appreciate the same, Sri Nilogal has taken us through the prosecution case as presented before the trial court and has also drawn our attention to the literature in the form of book that were exhibited, which throw light on the nature of the organization and its activities and its goals. For such purpose, Sri Nilogal has made reference to book End of an Era authored by Sri K M Munshi and while it is pointed out that the organization was founded by Hazarath Moulana Syed Siddiqui, it is specifically mentioned in this book that he was neither a saint as claimed by the followers of the organization nor the organization was preaching and spreading good things and harmony, as is sought to be projected, but it was found to be a very intolerant organization, particularly towards Hindu community; that it was only to Islamize not only the entire population in India but also the population throughout the world by persuation or by force; that it propagated hatred towards other communities including Hindus and Christians; that it is very 78 manifest from its activities from the very beginning of the movement founded by Hazarath Moulana Syed Siddiqui; that it also sought to bring about internal differences, particularly through the Book Lingayat, authored by the founder of the organization; that it was meant to project members of Lingayat community as only members belonging to Mohammadan community and a consistent and concerted effort was being made to convert all members of Lingayat community and to make them as their sect and taking them into the fold of Islam; that such references are found in this book; though the book authored by late K M Munshi is with reference to rule of Nizams of Hyderabad and the book also indicates the rule of Nizams; it also makes mention of the Deendar Anjuman movement founded by Hazarat Siddiqui; that it had indulged in acts of violence against the people belonging to other communities, particularly people belonging to Hindu community. It is pointed out that all these aspects have been taken note by the learned judge of the trial court in his judgment also.
79
81. It is submitted that the members of the organization had entered into a conspiracy at Hyderabad for furtherance of the activities of the organization, particularly for converting all Hindus to Islam by persuasion and if not possible by force; that for such purpose, if need be wage holy war jihad; and collected resources through Nifaaq and Syria; that the meetings were held at Hyderabad; that participation of the members of the organization including the accused except A-10 who were congregating at the annual urs being conducted at Asifnagar, Hyderabad to commemorate the death anniversary of the founder of the organization was the focal point for such congregation; that in one such congregations held in October, 1989, wherein A-7 had participated along with others, a programme for indulging in acts of violence and sabotage was chalked out and the members of the organization who can take active part and the follow up actions were asked to meet again and to take follow up action; that while the conspiracy at Hyderabad was 80 in fact subject matter of charge in a sessions case before a Hyderabad court, the follow up action for acts of disruptions, sabotage and other acts of waging war against the country was taken in the meeting of the accused persons and others held at Batkurki and a subsequent meeting at Bangalore and in this background submission of Sri Nilogal is that the conspiracy for commission of offence at Bangalore and other places in Karnataka state was as a result of fresh and new conspiracy, a conspiracy apart and in addition to the conspiracy at Hyderabad and it is on such premise, submission is made by the learned SPP that the provisions of Section 300 CrPC and Article 20(2) of the Constitution of India are not attracted for trying the accused persons in the SC No 423 of 2001 before the Bangalore court in respect of the incident of bomb blast in Maruti van driven by the A-1 that took place on 09.07.2000 in front of the factory gate of Minerva mills on Magadi road, Bangalore.
81
82. Mr.Nilogal, learned SPP has drawn our attention to page Nos. 68, 111 of the judgment of the Trial Court wherein there is a detailed discussion about the activities of the Deendar Anjuman Organization that it is a militant organization since inception. Learned SPP submitted that the Hazrath Maulana had set the object of conversion of all Hindus to Islam using force and other methods. In this regard has drawn our attention to the book 'End of an era' by Sri K M Munshi.
83. Mr. Nilogal, learned SPP submitted that some of the accused persons had been prosecuted before the Hyderabad Court in S.C.No.95/2001 only in respect of incidents that had taken place in Hyderabad State and not with reference to the bomb blast that had taken place in front of Minerva Mill Gate at Magadi Road. Therefore, the case of the accused persons in connection with the incident that took place due to the bomb blast by Maruthi Van driven by A1 cannot be said to be affected either by the provisions of 82 Section 300 Cr.P.C or Article 20 (2) of the Constitution of India. His submission is that there was a fresh conspiracy in respect of the acts in the State of Karnataka and though the main object was to carry on acts of sabotage and subversive activities with waging war against the State, bombing in churches, loot and plunder, railway wagons and ultimately the object of Islamisation of the entire country and throw out the established government. However, each time there was a fresh act, which was the result of a fresh conspiracy and in furtherance of the original goal and object of the organization and each time a new incident takes place there is a conspiracy behind; that it is only to be established.
84. It is also pointed that accused persons had not been tried for the offences punishable under Sections 121 of 121A of the IPC before Hyderabad Court and therefore, it cannot be said that the provisions of Section 300 Cr.P.C comes in the way of the prosecution case before the Bangalore Court in S.C.No.423/2001.
83
85. Learned SPP submits that new facts had come into existence in the sense that there was a fresh conspiracy held at Bangalore at the residences of A1 & A9 and those who had participated and agreed for carrying out the Act pursuant to fresh conspiracy are liable and that is the reason as to why the prosecution case is not affected by the principles of double jeopardy. He submits that in the cases relied upon by the learned counsel appearing for the appellant all those were cases where in on the same set of facts a fresh prosecution was held to be not permitted and as was noticed in the facts of the particular case.
86. Mr.Nilogal, learned SPP has also submitted that the prosecution case is also not in any way hit by want of sanction in respect of the additional charge particularly for trying the accused persons for the offences punishable under Sections 121 & 121A of the Code. He submitted that before the sanction obtained as per Ex.P181, prosecution had placed full material on facts before the sanctioning 84 authority and the sanction had been accorded. That the prosecution having not led any additional evidence and only additional charges have been framed and as permitted under Section 216(5) of the Code, the prosecution case does not suffer for want of fresh sanction. He submitted that the facts and evidence being the same and only additional charges being framed, prosecution case is not affected. Sanction, which had been obtained at the time of prosecuting the accused for the offences punishable under Sections 124A and 153A of the Indian Penal Code is good enough for prosecuting the accused persons under Sections 121 and 121A of the Code also. In this regard Mr.Nilogal, learned SPP has placed reliance on the judgment of the Privy council in the case of GOKULCHAND DWARKADAS MORARKA reported in AIR 1948 PC 82, the judgment of the Hon'ble Supreme Court in Parliament Bomb blast case, in the case of STATE (NCT OF DELHI) vs NAVJOT SANDHU reported in 2005 SCC (Cri) 1715 & in the case of FOOD INSPECTOR, EARNAKULAM vs P S SREENIVASA 85 SHENOY reported in AIR 2000 SC 2577 & in the case of LOURIE E JACOBS vs UNION OF INDIA reported in AIR 1958 ALLAHABAD 481.
87. Mr.Nilogal has also drawn our attention to Sections 464 & 465 of the Code of Criminal Procedure and submits that sufficient opportunity having been given to the accused persons after the framing of the charge and accused persons having been enabled to recall the prosecution witnesses and to cross-examine them further, there is no prejudice or failure of justice to the accused persons and therefore, there is no error in framing of additional charge, so also the conviction passed on the additional charge. Further reliance is placed on the following decisions, in the case of KRISHNA KUMAR vs STATE reported in AIR 1955 PUNJAB 151, in the case of MOSEB KAKA CHOWDHRY AND ANOTHER VS. STATE OF WEST BENGAL reported in 1956 SC 536 (S) and in the case of GOKULCHAND DWARKADAS MORARKA [supra].
86
88. On the strength of the ratio of this decision he submitted that the prosecution case is not in any way vitiated.
89. It is pointed out that though the facts and information relating to Ex.P260 was not before the sanctioning authority, nevertheless the confessional statement of A8 that had been recorded by the investigating officer on 8-8-2000 [Ex.P274] was very much before the sanctioning authority at the time sanction was granted as on 10-10-2000. Therefore, Mr. Nilogal submits that all facts and information enabling framing of additional charges for offences punishable under Sections 121 & 121A IPC was before the sanctioning authority and it is on perusal of such material the sanction has been granted. Separate sanction in respect of additional charge was not necessary for that reason. Mr.Nilogal also submitted that the Note put-up by the concerned official to sanctioning authority do indicate that such material has been placed and considered by the 87 sanctioning authority, which is part of the original sanction records of the authority.
90. Mr.Nilogal contended, the argument advanced on behalf of the appellant that evidence of PW-46 Abdul Gaffur cannot be looked into for the reason that the said witness was in the position of an accomplice even for the charges of conspiracy as he has participated in the very meeting where the other accused persons said to have been participated and without arraying him as accused, the prosecution has examined him as a witness and therefore it is nothing short of bypassing the provisions of Sections 306 & 307 Cr.P.C, is not a sound argument. Mr Nilogal submits that in the first instance, PW-46 was not accused person and therefore provisions of Sections 306 & 307 Cr.P.C are not attracted. In this regard, Mr.Nilogal has sought to justify the reliance placed by Sri Pasha on the judgment of the Supreme Court in P.SIRAJUDDIN vs STATE OF MADRAS [AIR 1971 SC 520] by submitting that in the case before the Supreme 88 Court, when a police officer has given immunity and protection to a witness, which is beneficial in favour of prosecution, which was also in writing and therefore the ratio of that case is not applicable to the facts of the present case. On the other hand, reliance is placed on the judgment of the Supreme Court in the case of L CHORARIA vs STATE OF MAHARASHTRA [AIR 1968 SC 938] and submitted that there is no embargo for examining a person as witness without arraying him as an accused. Even with reference to the material on record, it is submitted by Mr.Nilogal that the very evidence of PW-46 indicates that he was not a party to the agreement to the conspiracy as he opted out of the agreement for indulging in acts of sabotage and other offences in pursuance to the conspiracy meeting held at Batkurki. On the other hand, submission of Mr.Nilogal is that the witness had been exhaustively cross- examined by the defence Lawyers and the answers elicited supports the prosecution case and also amounts to eliciting an admission as against accused persons and supportive of 89 prosecution case. Submission is that, as PW-46 opted out from making any commitment to the acts, bombing in churches, looting railway wagons and financial institutions and the mere fact that he has been cited as a witness in the case as theory of conspiracy in no way diminishes the present case as he has spoken about fresh conspiracy pursuant to the meeting held at Batkurki. It is also submitted that PW-46 was never arrested and was not in policy custody and therefore his evidence is free and voluntary.
91. Countering the submissions made on behalf of the appellants by Sri Pasha about the illegality and acceptability of Ex.P-260 as confession statement written by A-8 while in jail, it is pointed-out that firstly, he was not in police custody and was in judicial custody and that the police or investigating officer had no free access to the accused person unless permission had been obtained from the Court. It is therefore submitted that in the first instance, the confession 90 statement even as recited in the very beginning cannot be said to be either at the behest of the police officer or the investigating officer and it is a voluntary statement of an offender who made the statement out of remorse and recorded, it being not tainted by either inducement or threat or coercion and without access to the police, it should be taken as voluntary confession made by A-8. In this regard, submission of Mr.Nilogal is that Ex.P260 constitutes a confessional statement and is not in any way affected by the provisions of Section 24. On the other hand, being not tainted by any of the situations referred to in Section 24, as noticed above, his confession statement made is to be accepted.
92. It is submitted that it is no doubt true that on the letter addressed to a Magistrate, the prosecution is not placing reliance but as the confession statement under Section 164 has not gone through the procedure, it is only an extra judicial confession. On authority, it is submitted 91 that even the evidence in the nature of extra judicial confession can be accepted without any corroboration and cites the decision of Rajasthan High Court in the case of LAXMAN vs STATE OF RAJASTHAN [(1977) 2 CRIMES 125]. Also relies on paras 4, 5 and 6 of the judgment of the Supreme Court in the case of DEVENDER PAL vs STATE NCT OF DELHI & ANOTHER [2002(2) CRIMES 133]. On the authority of these judgments, he submits that confession statement has to be accepted when the statement of the accused was voluntary. Reference is also made to Section 30 of the Evidence Act in this regard and reliance is placed on the decision of the Supreme Court in the case of SITA RAM vs STATE OF UP [AIR 1966 SC 1906], and points-out that a confessional letter written by the accused person admitting that he had committed murder of his wife, though addressed to the Sub-Inspector of Police, the Supreme Court opined that it was not tainted by the provisions of Section 25 of Evidence Act as there was no material to indicate that police had any influence in the 92 matter. Therefore, Mr Nilogal submits that in the present case also, police having no access to A-8, when Ex.P-260 was written in the jail at a time when there was no visit or access by the police to the accused person and therefore the learned Judge of the trial Court is justified in accepting Ex.P-260 as confessional statement of the accused.
93. Reliance is also placed on the judgment of the Supreme Court in Parliament bomb blast case NAVJOT SANDHU [Supra] wherein the Supreme Court had occasion to discuss the effect of a confession vis-à-vis Section 24 of the Evidence Act at para 29 at Page 1773. It is also submitted that A-8 had in fact admitted writing of letter Ex.P-260 during his statement recorded under Section 313 Cr.P.C but only wanted to retract from the same by stating that it had been written under pressure, which amounted to admission about the letter written but retraction came very late and only at the time of recording statement under Section 313 Cr.P.C, which has been rightly rejected and 93 confession was acted upon by the trial Court. Mr.Nilogal also submitted that the contents of Ex.P-260 being not put to A-8 while recording the statement under Section 313 Cr.P.C by the learned Judge of the trial Court, is not tenable as accused person was represented by a counsel. It is also submitted that the same argument holds good in respect of other accused persons also, as they were also represented by counsel. On the other hand, all accused had been given a copy of the voluntary statement that had been given by A-8 before the police as per Ex.P-274 as part of the charge sheet documents which contained the very information as is found in exhibit P260 and therefore no prejudice is caused to the accused persons even if they had not been furnished exhibit P260 as part of the relied upon documents along with the charge sheet; that the learned judge of the trial Court not explaining full details of the contents of Ex.P-260 either to A- 8 or other accused persons while recording their statement under section 313 Cr.PC. has in no way caused prejudice to the accused persons including A-8; that accused were not 94 only represented by counsel but were very well aware of the facts and circumstances as revealed in Ex.P-260 and the only difference being, Ex.P-274 was a voluntary statement of A-8, whereas Ex.P-260 was a confessional statement of A-8 in the form of letter written by the very accused while he was in judicial custody. Reliance is placed on the judgment of the Supreme Court in the case of MOSEB KAKA CHOWDHRY [supra] to support this submission.
94. Mr.Nilogal also submits that for attracting Section 30, and for making use of a confession of an accused person being used against co-accused, there is no requirement in law that the confession should be only one recorded under Section 164, in the sense, it should be a judicial confession; that even an extra judicial confession is not excluded from the scope of applicability of Section 30 of the Act.
95. Mr.Nilogal also points-out to the contents of exhibit P260, wherein information relating to persons who had undergone training in Pakistan for carrying-out acts of 95 sabotage against state machinery as supportive material for the offences charged under Sections 121 and 121-A of IPC.
96. Mr Nilogal has taken us through the evidence adduced on behalf of the prosecution and drawn our special attention to the mahazars drawn at the place of blast which had occurred in the Maruthi van at Minerva Mill Gate at Magadi Road in 2000 and recovery of material objects at that place, in particular, recovery of semi burnt pamphlets MOs 2 and 3 and the inscription of slogan "Warning to Christian Missionary - Stop conversion" on it, and recovery of similar pamphlets at the residence of A-1 and the Computer-M.O.11 seized at the residence of A-1 under Ex.P.7 and print outs from the information stored in the computer also revealing the very contents of MOs.2 and 3 and similar details being recovered at the residence of A-10 under Ex.P.9-mahazar drawn on 23.7.2000 and recovery of six number of pamphlets of like nature as per M.O.87, all indicate not only the existence conspiracy for committing acts of sabotage but 96 also for creating rift amongst communities. The recoveries having been made in terms of the panchanama in the presence of the panch witnesses and the examination of PW.58 by the Investigating Officer during initial stage constitutes clear evidence of the activities that were planned and carried out by the accused persons.
97. With regard to the other material recovered at the blast place, Mr.Nilogal submitted that such a blast of powerful explosives as testified by the witnesses and A-1 being found in possession of such powerful explosives also goes to show that accused persons were committing acts of sabotage and disruptive activities.
98. Mr.Nilogal, with reference to cross-examination of PW.58-Investigating Officer in the first phase of the investigation, submits that a suggestion put to this witness by the defence counsel to the effect that the pamphlets recovered at the blast place had been fed into the computer seized at the residence of A-1 and therefore it was made to 97 appear as though computer contained the same while has been denied by the witness amounts to an admission on the part of the accused persons about the recovery of the pamphlets at the blast place.
99. The factum of blast with powerful explosives and the recovery therein is the proof of the accused persons indulging in the offences for which they were charged. Mr.Nilogal has taken us through the details of Ex.P.7- mahazar and other recoveries at the house of A-1 and submits that the recoveries made therein particularly relating to the Deendar Anjuman movement throws light about the involvement of the accused persons in the activities of the organisation. Mr.Nilogal also taken us through the evidence of PW.58-first Investigating Officer, PW.59-second Investigating Officer and Mr.M.B.Appanna- PW.66-third Investigating Officer and various mahazars drawn by these Investigating Officers and recoveries therein and also the testimony of the panch witnesses supporting 98 the recoveries pursuant to the mahazars and submits that these recoveries are fully supportive of the prosecution case about the conspiracy amongst the accused persons for carrying out the acts which are in the nature of offence under the various provisions with which they were charged and therefore, prosecution has made good its case.
100. With reference to the evidence of PW.28- Sri.P.N.Mukunda and his statement Under Section 161 of the Code of Criminal Procedure, 1973, having already been recorded by PW.56-Investigating Officer as on 18.6.2000, he pointed out that this witness had seen the presence of A-1 near the act of sabotage, namely bomb blast taken place inside a Church in J.J.Nagar and the testimony of PW.28 having not been in any way impeached, it constitutes substantive evidence about the involvement of A-1, particularly in an act in the nature of carrying out offence not only for creating rift amongst the communities but also an affront to the authorities of the State.
99
101. With reference to recoveries effected pursuant to the mahazar drawn at the instance of A-9 under Ex.P.177, the mahazar drawn at BEML Factory, the workplace of A-9 under Ex.P.14 and the recovery of floppies from the desk- drawer of A-9 and the mahazar drawn as a follow-up action at the office by the Investigating Officer on 29.8.2000 under Ex.P.26 when the print outs of the contents of the floppies were taken out in the presence of PW.7-Lakshminarayana and the contents therein are all incriminative and so also the mahazar drawn at the residence of A-17 under Ex.P.8 and recovery of M.Os.70 to 86 and so also another mahazar drawn at his residence on 28.7.2000 in his presence and at his instance under Ex.P.12 and seizure of material objects M.Os.95 to 105 and further incriminating materials having been recovered and also the mahazar drawn at the workplace of A-17, BEML Factory, under Ex.P-13 on 29.7.2000 and recovery of M.Os.110 to 146 reveal more incriminating materials and the contents of M.O.142-the 100 intimidatory letter with the slogan 'Christian Missionaries, stop conversions or QUIT INDIA', all clearly reveal the notorious activities undertaken by the accused persons and are supportive of the prosecution case of not only the conspiracy amongst the accused but also their further plan of action for implementation and the manner of implementation towards the blast subsequently that has taken place at various places. Therefore, submits that the prosecution has made good the case with such convincing and cogent evidence. The contents of Exs.P.161 to 166 reveal that A-9 and A-10 having lead the Police to the various places where the conspiracy had been hatched pursuant to the meeting held at various places of Hyderabad are all supportive material to prove the conduct of the accused and their involvement being very much relevant for the purpose of Section 8 of the Indian Evidence Act, 1872, that information constitutes valuable piece of evidence and submitted that such information has to be accepted as evidence provable against the accused persons in terms of 101 Section 8 of the Indian Evidence Act, 1872, and has placed reliance on the judgment of the Supreme Court reported in NAVJOT SANDHU [supra] and submits that there is acceptable proven evidence against the accused persons to make good the charges of the prosecution.
102. Mr.Nilogal has also placed reliance on the contents of Ex.P.177, mahazar drawn at the residence of A-9 when A-9 pointed out the places where himself and other accused had congregated and discussed about the action plan to carry out the objects of the organization and as per the directions of A-7-Zia-Ul-Hassan who was operating from Mardan, Pakistan.
103. Mr.Nilogal has submitted that under Ex.P.177 mahazar drawn at the residence of A-9, the recovery of a hand written plan of action as per Ex.P.265 has been proved to be in the hand writing of A-16 by examining PW.67- Handwriting Expert who had compared the writing in Ex.P.265 with the admitted writings of A-16 with the help of 102 scientific instruments and this also constitute the material not only against A-16 but the contents clearly indicate the name of persons who were to carry out the plan of action which were offences and the involvement of such persons in the conspiracy and the follow-up action.
104. Mr.Nilogal has also drawn our attention to the seizure mahazar drawn at the residence of A-9 under Ex.P.177 and the recovery of M.O.185-one small pocket book containing the telephone numbers, photo of Ibrahim and also E-mail ID HSD Chandrashekar and password Moon Forehead which according to the prosecution is the E-mail ID of A-7 as indicated in Ex.P.260. Therefore, he submits that the involvement of A-9 and other accused in the acts of sabotage is amply made out.
105. Sri.Nilogal, Special SPP, submits that the above recoveries from the residence and work place of A9 and A17 go to show the existence of a conspiracy against the accused persons and the manner of its implementation; that 103 conspiracies are all hatched in secrecy and executed without trying to attract attention and is a matter to be inferred from the circumstances; that the circumstances as has been inferred from the recoveries and the information revealed from the recoveries in the background of possession of powerful explosives by A1 in the Maruthi Van which came to be exploded is a clear indication about the existence of a conspiracy and placed reliance on the following decisions in support of the same :-
1) E.K.CHANDRASENAN - VS - STATE OF KERALA (1995 CRL.L.J 1445) and based on the ratio he submits that it is not necessary that all accused persons should have participated in a particular meeting, conspiracy can be proved by circumstantial evidence.
2) The other decision relied is in the case of KEHAR SINGH AND OTHERS -Vs- THE STATE (DELHI ADMN.) - AIR 1988 SC 1883 wherein specific 104 reliance is placed on paras 268 to 272 as follows:-
268. Before considering the other matters against Balbir Singh, it will be useful to consider the concept of criminal conspiracy under Secs. 120-A and 120-B of IPC. These provisions have brought the Law of Conspiracy in India in line with the English law by making the overt-act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well-settled. The following passage from Russell on Crime (12 Ed. Vol. I, 202) may be usefully noted:
"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. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. "
269. Glanville Williams in the "Criminal Law" (Second Ed. 382) explains the proposition with an illustration :
"The question arose in an Iowa case, but it was discussed in terms of conspiracy rather than of accessoryship. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own 105 against P and that he would whip him at the first opportunity. E whipped P. D was acquitted of conspiracy because there was no agreement for "concert of action". no agreement to "co-operate".
270. Coleridge, J., while summing up the case to Jury in Regina v. Murphy, (1837) 173 ER 502 (508) pertinently states:
"I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means or proving any such thing, and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, "Had they this common design, and did they pursue it by these common means-the design being unlawful?"
271. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal 106 act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Secs-120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
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. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review I974, 297 at 299) explains the limited nature of this proposition:
107
"Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct.
Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done."
106. It is submitted that main object of the followers of the movement is to enable A7 Zia Ul Hassan now residing in Pakistan to come to India with 272 patans and to enable the same, fresh meetings were held in Karnataka subsequent to the meetings held in Hyderabad and the communication of those amongst such persons is supported by letter written to Zia Ul Hassan which is in Urdu revealing preparation of the action plan which definitely constitutes material to support the case of the prosecution about fresh conspiracies, following the initial main conspiracy hatched up at the 108 meeting held in Asif Nagar, Hyderabad and district from that conspiracy.
107. It is therefore, submitted that there is existence of independent and separate conspiracy subsequent to the conspiracy charted out at Hyderabad meetings and that there is no need for adducing any direct evidence to prove conspiracy. In support of this proposition he has also placed reliance on the judgment of the Supreme Court in Rajiv Gandhi Assassination case STATE OF TAMIL NADU vs NALINI [AIR 1999 SC 2640] and also the judgment of the Supreme Court in the case of NAVJOT SANDHU [supra].
108. Sri.Nilogal has also submitted that the requirements to constitute an offence u/s.121 and 121-A of IPC, as indicated in Parliament Bomb Blast case, wherein at paragraphs 272, 273, 274 it is stated as follows :
"272. Section 121 and 121A occur in the Chapter 'Offences against the State'. The public peace is disturbed and the normal channels of the Government are disrupted by such offences which are aimed at subverting the authority of the 109 Government or paralyzing the constitutional machinery. The expression 'war' preceded by the verb 'wages' admits of many shades of meaning and defies a definition with exactitude though it appeared to be an unambiguous phraseology to the Indian Law Commissioners who examined the draft Penal Code in 1847. The Law Commissioners observed:
"We conceive the term 'wages war against the Government' naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous."
273. The expression 'Government of India' was substituted for the expression 'Queen' by the Adaptation of Laws Order of 1950. Section 121 now reads:-
"121. Whoever wages war against the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with death or imprisonment for life and shall also be liable to fine".
274. The conspiracy to commit offences punishable under Section 121 attracts punishment under Section 121A and the maximum sentence could be imprisonment for life. The other limb of Section 121A is the conspiracy to overawe by means of criminal force or the show of criminal force, the Central Government or any State Government. The Explanation to Section 121-A clarifies that it is not necessary that any act or illegal omission should take place pursuant 110 to the conspiracy, in order to constitute the said offence."
are clearly made in the present case that it is indicated therein that the concept of 'war' as understood in Section 121 and 121A of IPC is totally different from the conventional war between two states, that even an act of a rebellion group of two persons which challenges the authority of the state and poses a threat to the peace of tranquility of the society by affronting the established governance also amounts to waging war within the scope of this provision of law.
109. The offence committed in the nature of causing explosions using power explosive material in places of worship and that tendency to repeat the same shows a continued intention to carry on the offensive acts against the interest of the State; that such tendencies posed threat to the peace and tranquility and security of the country and therefore, in the case of persons found guilty, the offence of waging war against the country is made out and the 111 imposition of the extreme sentence as provided u/s.121 IPC is justified and therefore, prays for confirmation of the death sentence by accepting the reference.
110. Sri.Nilogal also submitted that not adhering to the procedure contemplated u/s.65B of the Evidence Act for proving the print outs taken out from floppies which had been seized from the drawer of A9 at his office premises was not contemplated when the floppies were retrieved on 29.8.2000 vide Ex.P16, and the amended provisions of S.65A and 65B has come into effect from 17.10.2000 by Act No.21/2000 and therefore, it was not possible to go through the procedure as enunciated u/s.65B of the Evidence Act.
111. However, on this aspect Mr.Pasha has submitted that if the prosecution wants to seek admission of the print outs taken from floppies and being evidence in the nature of secondary evidence, unless the procedure contemplated u/s.63 is strictly complied with; that it should firstly qualify as an admissible evidence in the nature of secondary 112 evidence u/s.63 and regarding applicability of the amendment and therefore requirement of proof insofar as the retrieval from electronic record is concerned, as per Section 65B as otherwise it becomes inadmissible, submits that even assuming that the provisions of Section 65B were not in place as on the date of retrieval the absence of Section 65B, amendment of proof, was as contemplated u/s.65 of the Evidence Act and neither having been complied, the contents of the print outs said to have retrieved from the floppies cannot be accepted as of evidentiary value to prove the prosecution case. It is also submitted that Section 65B being a procedural provision and made applicable to any pending proceedings is even otherwise applicable to the print outs retrieved from the seized floppies.
112. In the wake of the submissions made and contentions raised by learned counsel for the appellants and learned SPP, the following points arise for our determination in this appeal:
113
i) Whether the trial of the accused persons for the offences with which they are charged is vitiated, in view of prohibition contained under Section 300 CrPC and also safeguard provided under Article 20(2) of the Constitution of India in the background of the prosecution case and the trial against the accused persons except A-10 before the designated special court at Hyderabad in SC No 95 of 2001, as contended by learned counsel for the appellants and in view of the accused persons except A-10 having been tried for the very offences and on the very same set of facts?
ii) Whether the prosecution case for pressing the charges under Sections 121 and 121A of IPC, which were framed by way of additional charges by the trial court on 12-
12-2007 and the resultant conviction is hit by want of proper sanction under Section 196 CrPC for lack of jurisdiction in the court for taking cognizance of these offences in the absence of an explicit sanction order by the state government in respect of the offences revealed in the additional charge?
iii) Whether, on the evidence placed before the trial court, the prosecution has made good the charges leveled against the accused persons?
iv) Whether the conviction and sentence by learned judge of the trial court is sustainable or calls for interference by this court?
114
v) Whether the reference made by the learned judge of the trial court for affirmation under Section 366 CrPC merits acceptance?
Re: Point (i):
113. The first and foremost legal hurdle posed by Sri Hashmath Pasha, learned counsel for the appellants, for the trial of the accused persons before the court is that it is hit by the principle of double jeopardy; that the provisions of Section 300 CrPC is very clear in this aspect and Section 300 is clearly attracted for the reason that except for the charge under Section 121 and Section 121A IPC, which has been framed by way of additional charges in the present case, the accused persons, except A-10, had all been charged with the rest of the offences before a sessions court in Hyderabad in SC No 95 of 2001 and tried before that court and in fact except for A-10, who was not an accused in that case, all other accused persons in that case were found guilty of the offence of committing conspiracy under Section 120B IPC and had been sentenced to undergo RI for six months and therefore trying such accused persons yet again 115 before the court and on the same set of facts is clearly in violation of Section 300 CrPC and in view of the safeguard provided under Article 20[2] of the Constitution.
114. With reference to the charges framed in SC No 95 of 2001, Sri Hashmath Pasha, learned counsel for the appellants, has drawn our attention to the judgment of the Hyderabad court, a copy of which is placed on record along with the appeal memo, and submitted that even the prosecution itself had placed on record a copy of this judgment before the trial court by way of opposition to the application that had been filed on behalf of the accused persons for discharge under Section 227 CrPC, which, though, was dismissed by the trial court and was not varied by this court in a further revision petition, nevertheless, in fact, remains with the prosecution documents itself and that the facts leading to the trial of the Hyderabad case and present case are one and the same, and therefore the provisions of Section 300 CrPC are clearly attracted. In this 116 regard, appellants' case being supported by the decision of the Supreme Court in the case of NALINI & OTHERS [supra] and also the judgment of the Supreme Court in the case of KOLLA VEERA RAGHAV RAO [supra] wherein the Supreme Court has recognized the legal principle embedded in Section 300 CrPC and it is also noticed that the protection given under Section 300 CrPC is much wider and greater than what is accorded to a person under Article 20[2] of the Constitution of India.
115. While, there cannot be any dispute about the legal proposition and the provisions of Section 300 CrPC, it again depends upon the fact situation as prevails in a given case and as to whether the prosecution in the earlier case against the very accused persons was also based on the same facts.
In this regard, Sri Pasha submits that in so far as the charge of criminal conspiracy is concerned, it is one conspiracy and comes to an end with the accomplishment of the conspiracy or abandonment of the same and at any rate 117 with the arrest of the accused persons, the conspiracy aspect comes to an end and therefore the charge of conspiracy in the present case is clearly hit by the provisions of Section 300 CrPC. Reliance is placed in this regard on the judgment of the Supreme Court in the case of LEO ROY vs SUPERINTENDENT, DISTRICT JAIL [AIR 1958 SC 119], indicating that criminal conspiracy is an independent offence and therefore there cannot be a continuing conspiracy after the person is tried for that conspiracy, is again, in our considered opinion, dependent on the facts and circumstances, as existence of conspiracy for an agreed act which is an offence is one aspect, but having a goal that is any goal, which, according to the prosecution case, is to achieve the goal of the founder of the deendar anjuman movement viz., Islamization of the entire population of the country, is a goal that is sought to be achieved by different acts, as submitted by Sri Nilogal, learned SPP and if such is the situation, the facts constituting each conspiracy, in the sense, each renewed meeting for achieving the goal by 118 further acts, can definitely constitute a fresh conspiracy independent of the original conspiracy, which, even assuming for arguments' sake, has been either implemented or aborted and the persons had been prosecuted for the same, is an independent offence.
116. We find that such is the possibility in theory, as the word 'conspiracy' in itself is not an end, but what is the conspiracy part, i.e. what is agreed to act or offensive act which is sought to be carried out pursuant to the conspiracy, is what is material for deciding this question.
117. Though Sri Pasha has placed reliance on the decision reported in 1973 HL (E) 807 in the case of DOOT & OTHERS [supra] we find while this decision can be an authority for the proposition that the conspiracy continues to exist till it is executed or abandoned by chance of necessity, the decision is more an authority for the proposition in the wake of the continued conspiracy till its execution, it remains in existence and therefore the accused 119 persons in that case who were beyond the jurisdiction of the English courts, the moment they entered the British territory English courts got the jurisdiction to prosecute them and the proposition in no way advances the case of the appellants in the present situation. Rejection of the argument that there should be a fresh agreement in that case by the House of Lords was in a different context.
118. The question as to whether the provision of Section 300 CrPC is attracted being linked to the existence of a similar or identical facts, while it is found that narration of the facts does originate in the present case also and with the founding of the organization by Moulana Siddiqui and the activities of its followers and the nature of activities of its members, the manner of the activities etc., prosecution theory in the present case is that the conspiracy is continued by the accused followers by fresh meetings held at places in Karnataka for carrying out the further acts of sabotage and also act of waging war against the Government of India and 120 disruption at places of worship, disturbing public peace and tranquility as indicated in various sections with which the accused persons had been charged. Existence of such facts leading to an agreement amongst the accused persons for carrying out the acts constituting offences and fresh offences can definitely give rise to an inference that a fresh conspiracy has been hatched and if so it becomes an independent offence yet again punishable under Section 120B IPC. It is, therefore, that we would proceed to further examine the evidence of the prosecution as let in before the trial court, if reveals the existence of such fresh facts either through meetings or otherwise indicative of the conspiracy or common intention of the accused persons to commit fresh acts of violence or sabotage or terrorism or waging war against the state or to disturb public peace and tranquility, causing rift amongst the communities etc., then the provisions of Section 300 CrPC being not attracted, as the prosecution is not on the same set of facts.
121
119. While it is true that on the facts as had been placed and relied upon by the prosecution in the case before the Hyderabad court and there is no question of trying the accused persons on the same set of facts, mere fact that the earlier goal is persisted, but if it is shown that further acts have been committed in pursuance of a fresh conspiracy hatched at the meetings held at Batkurki or in the houses of A1 and A9, then, in our considered opinion, will not amount to prosecuting the accused persons for the same set of facts.
120. However, as contended by Sri Pasha, learned counsel for the appellants, if the prosecution is unable to make good any further or fresh facts disclosing a conspiracy yet again for committing further offensive acts, then it is a case where the prosecution case fails for proving the offence of conspiracy and the fact that the accused persons except A- 10, were found guilty will not in any way advance the case of the prosecution in the present case.
Re: Point (ii):
122
121. The second legal contention which is raised and which affects the trial before the sessions court is in respect of the additional charges for the offences punishable under Sections 121 and 121A IPC with which the accused persons were charged and as to whether the court could not have taken cognizance of the additional charges for the said offences as framed under the additional charges, for want of sanction in respect of the offences as disclosed in the additional charge.
122. In this regard, learned counsel for the appellants as well as the learned SPP have placed reliance on a considerable number of authorities, which we have referred to above. From a perusal of these authorities, it is clear that the sanction under Section 196 CrPC is based on the information and facts as placed by the prosecution before the sanctioning authority. Requirement of law is that the sanctioning authority should be aware of the circumstances and should expressly accord sanction for the court to take 123 cognizance in the wake of the nature of the offences which are under Chapter VI of IPC, which are offences against the state.
123. Specific case on behalf of the appellants is that Sections 121 and 121A IPC being in Chapter VI, prior sanction was mandatory before the court could take cognizance of these offences. The provisions of sub-section 5 of Section 216 CrPC, reading as under:
216. Court may alter charge :-
xxx (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
while does enable the case being proceeded against the accused persons when a previous sanction was there against them in respect of the same facts, based on which the additional or altered charges are framed, we find that there 124 is a subtle distinction between the granting of sanction under Section 196 CrPC, which is as judicially noticed, almost mandatory and want of sanction does affect a trial, the enabling provisions of sub-section (5) of Section 216 CrPC is in a slightly different context.
124. Additional charges under Section 216(5) are framed on the same set of facts and material and a fresh sanction is not a sine qua non, as sanction is obtained and granted by the government based on the facts and information placed before the sanctioning authority. Therefore, the question is as to whether the facts and circumstances from which the sanctioning authority could have inferred that the offences can also be one punishable under Section 121 were in fact made available before the sanction was granted.
125. It is in this regard, Sri Nilogal, learned SPP has submitted that the only fact situation which was not before the sanctioning authority at the time of sanction was about the existence of ExP260, which, in fact, was sought to be 125 made part of the record only at the advanced stage of the trial and in the year 2007, while the sanction had been granted on 10-10-2000 itself and the information from the evidence of PW46, which was also not a fact before the sanctioning authority, as PW46 was not a charge sheet witness, but to get over this obvious shortcoming, submission is that the statement of A-8 as recorded by investigating officer - PW66 - was very much part of the record and it contains the very information as is revealed in ExP260. It is, therefore, the argument that with the same set of facts, no fresh sanction is necessary when the additional charges were framed.
126. Reliance is placed by Mr. Nilogal, learned SPP on the decision of NAVJOT SANDHU [supra], particularly, paragraph 16 of the judgment to submit that Supreme Court having reviewed the letter relating to grant of sanction under Section 196 of Cr.P.C. and having opined that grant of a sanction order cannot be given or elevated to the status of 126 judicial review; that it is more in the nature of the administrative order and therefore, it need not necessarily answer the test of judicial scrutiny in terms of general standards and element of positive sanction is inevitable. We find that the distinction made indicates that the trial court was satisfied that all material facts, in fact had been placed before the sanctioning authority and even sanction order recited the details of the same and therefore, it is because one or two aspects had not been mentioned though in itself indicates that there is no application of mind and therefore, in the present circumstance applying this standard statement to all the prosecution witness should be accepted.
127. On the question of additional charges for punishment under sections 121 and 121-A of IPC being vitiated for want of fresh sanction, while our examination as above indicate that the material such as Ex.P260 and the evidence of PW.46 is the earlier statement by this witness before the 127 Police had not been placed before the sanctioning authority at the time of sanction as per order dated 10.10.2000 as per Ex.P181 nor was it possible. The question does not end by merely noticing this position as independent of this material whether the available material had indicated the fact situation based on which charges under sections 121 and 121-A of IPC could have been framed. This examination arises in view of the provisions of section 216[5] of Cr.PC and in the wake of the earlier sanction granted by the Government in respect of the offences as against the accused persons sought to be made out in the charge sheet proposed to be filed and for which sanction had been sought for by the prosecution in respect of offences punishable under the provisions of sections 124-A and 153-A of IPC. Insofar as the sanction in respect of the prosecution of accused under these provisions of law is concerned, is as covered by Ex.P181 sanction order dated 10.10.2010 by the prosecution to make good there was sanction and further sought to be established before the court through oral 128 testimony of PW.60 - Narayanaswamy, Under Secretary of the Government Department when evidence was given before the court and that is not in dispute. The further question is as to whether in terms of section 216[5] of Cr.PC, this can be said to be good enough for pressing additional charges for the purpose of sanction order to prosecute the accused for offences punishable under sections 121 and 121-A of IPC which came to be framed much later on 12.12.2007. We find from the sanction order that record had been placed by the prosecution seeking for sanction only in the background of the sanction being required under section 196 of Cr.PC in respect of the offences suggested in the proposal, namely, sections 124A and 153-A of IPC. Sections 124A and 153A are also provisions occurring in chapter-VI of IPC wherein the offences against the State are all grouped and punishment indicated. Sections 121 and 121-A of IPC are also offences against the State and they figure in the very beginning of the Chapter.
129
128. We find from the recital of the sanction order that the accused persons belonging to Muslim community that they with the object to create communal disharmony and for carrying on the Holy War 'Jihad' in India, are taking steps and making preparations; that A1, A2 and A3, for such purpose were transporting explosives in a Maruti Van bearing registration No.GA 01 U 2786 from Magadi Road going towards Majestic when there was an explosion in the van and the A1, A2 & A3 were transporting explosives in the van for the purpose of carrying out disruptive activities by terrorizing people and therefore sanction was sought for prosecuting eighteen persons whose names had been enclosed along with and in respect of this proposal, sanction was indicated and such sanction had been granted on 10.10.2000. The testimony is also that the entire record was placed and we find the record included the mahazars Ex.P177 drawn at the residence of A9. Ex.P14 mahazar dated 3.8.2000 drawn at the office of premises of A9 wherein amongst the recoveries were included floppies - MOs 148 to 130
150. Further, Ex.P16 to P25 are the retrieves from the floppies which was at the office of A9 and the printouts from some of the seized floppies were obtained at the office of PW.66. We notice that the information contained in these printouts does constitute material for inferring the accused persons were involved in the activity of waging or attempting to wage war against India. This is an inference which is possible as the material reveals gathering of wide and large information about the Defence installations and contents of letter through English translation of which it is found that there was suggestion made by A1 and A9 that there is need to establish a rocket launching station within the radius of 7 kilometers in Bangalore for carrying out the acts of destruction of Defence installations and other establishments. In the wake of such material being placed before the sanctioning authority and the recital that the accused persons were preparing to wage holy war against Government of India inside the country, in our considered opinion, it possibly constitutes factual information and 131 material for possible charge under sections 121 and 121-A of IPC.
129. However, Sri. Hashmath Pasha, learned counsel for the appellants - accused persons has submitted that the sanction order is to be proved in a proper manner; that it is not proved in a proper manner and moreover it does not on the face of it reveal that due consideration has been given by the sanctioning authority before passing any sanction order. Submission is that the sanction order dated 10.10.2000 is not made good whether for prosecuting the accused persons under sections 121 and 121-A of IPC as per additional charge or even as per the original charge for the offences punishable under section 124-A of IPC. However, submission of Sri. Nilogal, learned State Public Prosecutor is that the entire record was there and sanction order per se recites that it has been produced and in the context of requirement under section 124-A of IPC, sanction has been granted by the Government and moreover the sanction order 132 itself being in the nature of an administrative order need not be akin to judicial or quasi judicial order spelling out reasons for passing the order etc., but prima facie inference can be drawn that authority was aware of the facts and circumstances and in the light of the same, it has granted sanction and that is good enough and in this regard has placed reliance on the Judgment of the Supreme Court in the case of NAVJOT SANDHU [supra] and other cases.
130. There is no doubt or dispute that sanction order is an administrative order. Though Mr. Pasha, learned counsel for the appellants has contended that unless sanction order per se recites that the sanction authority had examined the matter before it and had shown awareness to the matter and it should be necessarily made good by leading extraneous evidence as is held in the cases of GOKULCHAND DWARKADAS MORARKA and TARACHAND JAIN [supra].
131. While this legal position cannot be disputed, we find that the preamble to the sanction order and the sanction 133 order read together and as noticed above on the face of it reveals that the matter placed before the sanctioning authority is for the purpose of prosecuting the accused persons under various provisions including section 124A of IPC for which sanction of the Government is required as it is evidence figuring in chapter-VI of IPC.
132. The recital also indicates the kind of disruptive activities and the waging of holy war in India by the accused persons as part of the movement of organization for which they are members and as members belonging to Muslim community. The prosecution case itself was that this organization has been a militant organization ever since and that is the narration as above. In this background and with the presumption that acts done in the normal course of business can be accepted and with PW.60 having spoken about the sanction order having been granted in the normal course with reference to Ex.P181 sanction order dated 10.10.2000, we are of the opinion that sitting in Judgment 134 over the sanction order applying objective tests and on the premise that it is required to meet the test on the judicial scrutiny or judicial or quasi judicial order in our considered opinion is not required or necessary.
133. Insofar as the Judgment of the Supreme Court in the case of 'KEDARNATH v. STATE OF BIHAR' reported in AIR 1962 SC 955 is concerned, the Supreme Court did give meaning and scope of section 124-A, we notice that examination was not in the context of looking into the validity of sanction order or existence of sanction order but as to whether sections 124-A and 505 of IPC had been rendered unconstitutional as violative of Article 19-1[A] of the Constitution of India which was a larger examination.
134. The judicial examination on the scope of validity of statutory provision, operation of which had resulted in a conviction by a court and in an appeal the convicted persons had questioned the constitutional validity of the very provision under which they had been convicted is totally 135 different and can never be compared to a sanction order required to be granted by the Government on its administrative side to fulfill the requirements of section 196 of Cr.PC.
135. The sanction order being more in the nature of an administrative order is now quite well settled and can be examined only on the touchstone of the requirements to satisfy the passing of an order which is on the subjective satisfaction of the administrative authority. Viewed from this background and looking into the sanction order and on a perusal of the same, we are of the opinion that the recitals in the proposal and the sanction order per se reveal that the accused persons were indulging in acts of waging holy war and though Mr. Pasha contend that this is not the same as waging war but is only a religious activity, nevertheless, we are not going in for further aspects of this examination at this stage as we find prima facie and on the face of the record, sanction has been granted in respect of the activity 136 of waging holy war against India and that in our considered opinion is good enough to include charge under sections 121 and 121-A of IPC and comes within the scope of the saving provision of section 216[5] of Cr.PC. It is for this reason, we hold that the prosecution case for pressing charges by way of framing additional charges under sections 121 and 121-A of IPC does not get vitiated only for want of sanction under section 196 of Cr.PC being a situation coming within the scope of section 216[5] of Cr.PC.
Re: Point (iii) & (iv):
136. That will take to us to the next aspect i.e., the examination of the material that had been adduced by the trial court and as to what charges had been made good based on such evidence.
137. In support of the prosecution case, the prosecution had examined as many as 67 witnesses viz., PWs.1 to 67, got marked documentary evidence Exs.P.1 to P.298 and had 137 produced material objects MOs.1 to 212. So far as the defence is concerned except for marking a portion of Ex.P.2 as Ex.D.1 no other documentary evidence was adduced and on the other hand, the defence was content with cross examining prosecution witness.
138. The prosecution has examined as many as 67 witnesses in all. All the witnesses who have supported the prosecution case and the key witness even according to the prosecution are only those, who are directly involved in the incident of blast and the follow-up action and the witnesses, who have supported the mahazars drawn at the spot or scene of occurrence, seizure of documents and objects and mahazars drawn when recoveries were made pursuant to and the incriminating material sought to be seized by the prosecution at the instance of the accused persons. This essentially comprises of the primary documentary evidence on behalf of the prosecution. It is in the wake of examination of such evidence the learned Trial Judge has 138 examined the prosecution case in the background of the accused persons being members of the Deendar Anjuman Institution that they all belong to Muslim community and pursuing the objects and beliefs of the followers of Deendar Anjuman organization and as to the manner in which the evidence supports the charges pressed against the accused persons. Even to make good the aims and objects the evidence of PW.46 is relied upon and the learned Trial Judge has examined the same. The prosecution has placed heavy reliance on the mahazar drawn, as per Ex.P.1 the mahazar dated 10.7.2000 drawn by PW.58 - the initial investigating officer between 3.00 pm and 5.00 pm in the presence of panchas and material objects 1 to 8. We find this is a mahazar drawn at the spot where the blast took place on 9.7.2000 at 9.30 p.m. The prosecution has recovered some incriminating material MOs. 2 and 3 the pamphlets, which were half burnt at the edges and contained the slogan "WARNING - CHRISTIAN MISSIONARIES STOP CONVERSIONS OR QUIT INDIA"
139
139. PW.3 - R. Gopal, who had come to the spot on hearing the blast while had seen the occurrence, is a panch witness to Ex.P.1 and has stated that he found that the blast was not a cylinder blast and has specifically stated that it is due to a bomb blast.
140. PW.8 - S. Ramanna Owner of a maxicab, which also got damaged in the blast that took place in the Maruti Van driven by A1 in which A.2 and A.3 were travelling and who had lodged first information Ex.P.6, and has acted as panch witnesses for Ex.P.1
141. A2 died on the way to the hospital and was pronounced brought dead. A3 died on the spot. One Dr. S B Patil conducted autopsy over the two bodies and issued the post mortem reports Ex.P167 and P168. PW.55 - Medical Officer who has been examined has identified the signature of Dr.S.B.Patil who had conducted the autopsy on the body of the dead persons and had given the post mortem report 140 ExsP.167 and P.168 opining that shock, multiplier injuries were suffered by the persons in the bomb blast. The report is stated that the persons died in the bomb blast.
142. PW.58 - the initial Investigating Officer - Shivappa Y Hadimani, who had held inquest over the dead bodies of A.2 and A.3 and drawn up the inquest mahazars as per Exs.P.31 and P.178 respectively, in the presence of panchas has stated that the injuries sustained by the two deceased were due to explosive substance.
143. The death of A.2 and A.3 due to the explosion by the bomb is not much in dispute and in fact it is in this explosion, the death of these two persons and damage to the maruti van which have caused the investigation by the prosecution.
144. As follow up of the blast, mahazar was drawn on the next morning at the residence of A.1 as per Ex.P.7 by the Investigating Officer PW.59 and in the presence of panch 141 witness PW.12. Amongst the articles seized in this mahazar are MO.11 was CPU, MO.11(a) was Monitor, MO.11(b) was Key board and Mouse, MO.12 was Computer Printer, MO.13 was Khaki colour pant and shirt, MO.16 was file containing 26 pages, MO.17 was diary containing telephone numbers, MO.18 and considerable amount of literature not only relating to Deendar Anjuman movement and organization, but also religious thoughts of other religion were also seized during this Mahazar.
145. The book, titled Lingayath published by Deendar Anjuman organization, is amongst the material object seized and this book found along with other books during search.
146. Seized articles have been testified by PW.59 - the investigating officer and supported by PW.12 panch witness.
147. Significance of the prosecution case for seizure is that MO.11 the computer was opened on 12.7.2000 at the office of PW.59 by PW.7 - Police Constable in the presence of 142 PW.12 and it was found that when the same was opened, screen displayed the content of the pamplets MOs.2 and 3, which had been seized under Ex.P.1 at the spot and was part of the data ambit in the hard disk of the computer.
148. The other mahazar drawn at the spot is under Ex.P.179 on 10.07.2000 whereunder, the maxi cab bearing reg. No.KA-04-8296 belonging to PW.8 which had been damaged due to the blast was seized. The seizure was upon the complaint lodged by PW.8, as consequent to the blast, maxi cab is badly damaged.
149. The Investigating Officer has drawn the next mahazar Ex.P8 at the residence of A.17, which has come to light from the letters and other materials seized at the residence of A.1 on 10.7.2000 under Ex.P.7.
150. The mahazar was drawn on 15.7.2000 by PW.66 the third Investigating Officer - M.B.Appanna, who had taken 143 over the investigation on and after 15.7.2000 being DSP in COD and as per the orders of Superior officers.
151. When Ex.P.8 the mahazar was drawn, A.17 was not in the house and it was drawn in the presence of panch witness PW.13 and the material object MOs.70 to 86 were seized from the house of A.17 situated at No.49, Gundappa Layout, 5th Cross, R.T.Nagar, Bangalore City.
152. The seizure materials included MO.70 - Passport of Amanath Hussain Mulla, MO.72 - Invitation sent to Pope Paul from Deendar Anjuman, Pakistan, MO.78 - list of Muslim institutions of Bangalore City and their correspondence, copies of newspaper of voice of peace, Xerox copy of the passport of Shaikh Dawood Abdul Lathief etc.
153. A.17 was arrested on 27.7.2000 and after his arrest and on his interrogation and after recording the statement as per Ex.P.271, has drawn another mahazar at the instance of A.17 in his house on 28.7.2000 as per Ex.P.12 and in the presence of PW.18 and further seized MOs.95 to 109. 144
154. In the mahazar drawn on 28.7.2000 at the house of A.17, amongst the recoveries of MOs.95 to 109, MOs.104 to 106 are the documents including the registration certificate of the maruthi van in which explosion had taken place on 9.7.2000 which was found in the dickey box of the scooter bearing registration No.KA-04-E-8825 and which had been parked near the house of A.17.
155. MOs.96 to 99 constituted the computer set comprising MO.96 - CPU, MO.97 - Digicam company monitor, MO.98- Chikoni Electronics company key board, MO.99- Compact company mouse. As per the mahazar, computer set was found underneath the cot in the house A.17 and contents of the seizure mahazar was drawn in the presence of A.17 and the panch is to the effect that A.17 had produced the computer set kept below the cot in his house and stated that, that was the computer from which he had sent mail messages to Pakistan by using the email account "hsdchandrashekar (moonforehead).145
156. Insofar as mahazar Ex.P.12, which is drawn at the house of A.17 on 28.7.2000, the argument of Mr.Pasha, learned counsel for the appellants is that this computer set had not been noticed by PW.66 when he had searched the house of A.17 earlier on 15.7.2000 and had drawn Ex.P.8 mahazar and so also the scooter and the recovery from the scooter MOs.95 to 109, but not noticing the computer set which is stated to be just below the cot is doubtful seizure, though it is stated to be at the instance of A.17.
157. Insofar as A.17 is concerned, another mahazar was drawn at his workplace under Ex.P.13 drawn on 29.7.2000 at the BEML factory, wherein A.17 was working as Machine Operator and in the presence of panch PW.19 - G. Vishwanath, Assistant General Manager of the factory at that time and the mahazar being drawn in the presence of A.17 by PW.66 -the investigating officer and in the presence of A.17 seized MOs.120, 147, which are produced by A.17 from his cupboard pursuant to his voluntary statement. 146
158. Amongst the recoveries are Xerox copy of the photo of Late Channabasavshwara Siddique and photo of Zia Ul Hassan, five copies of the book Lingayat, and as listed at Sl.No.34 the items recovered under the mahazar, five visiting cards of S.M.Ibrahim in Barkath and company, auditors and tax practitioners, identity card of A.17 - Imulla Staff No.R 721 02231, machine shop, BEML, Bangalore, the cover with the above description and inside the cover was found four copies of last warning to Christian missionaries, map of India, flag and pamplets on which the instruction of namaz in Urdu and below that Peeju - Bul - Mujaiduddin has been written and many other correspondence and Urdu diaries and journals giving information about Deendar Anjuman movement and organization etc.,
159. With regard to recoveries made pursuant to the mahazars, contention on behalf of the appellants by Sri. Hashmath Pasha, learned counsel is that PW.19 in his deposition had stated that the Chief Security Officer of 147 BEML on coming to know about the arrest of A9 and A17 had sealed the cupboard of A17 and also table drawer of A9 and though it is in his evidence that seal put by the Chief Security Officer of BEML was intact on 29.07.2000 and Ex.P13 mahazar was drawn and this obviously throws doubt about the genuineness of the recoveries etc., particularly, as the recitals in Ex.P13 does not recite the factum of the seal being intact.
160. It is also pointed out by Sri. Hashmath Pasha, learned counsel for the appellants that A17 had been arrested by the Investigating Officer on 27.07.2000 and on the very day on he being interrogated, his voluntary statement as per Ex.P271 had been recorded, but the mahazar at his residence was drawn on 28.07.2000 and mahazar at the work place even the next day on 29.07.2000 and the recoveries being not made immediately following recording of his voluntary statement, throws doubt about the genuineness of the recoveries.148
161. One another contention urged in the context of Ex.P13 by Sri. Hashmath Pasha, learned counsel for the appellants is that even as per evidence of PW.19, whenever a visitor enters the factory premises of BEML, an entry is made at the gate about the person, particulars and the purpose of the entry etc.,; that no such entry being found nor having been made good by the prosecution on the day when PW.66 has drawn mahazars inside the factory premises of BEML is a circumstance to doubt the very presence of PW.6 within the factory premises on the day and the mahazars and consequent recoveries etc.
162. Ex.P177 is a mahazar drawn on 23.07.2000 by PW.66
- Investigating Officer at the residence of A9 and in the presence of panch witness PW.57 and by which time it is indicated that MOs 168 to 185 were recovered pursuant to voluntary statement of A9 as per Ex.P264 recorded on that day. Amongst the recoveries in MOs.168 to 185, are pocket diary which contained the address of A7 and phone number 149 and that he was contacting A7 and his son often over this telephone number. It is also indicated that in the diary was placed one passport size photo of S M Ibrahim as told by A9 and also in the diary was found a folded paper containing name of A9 along with names of A2 & A3 and other names and A9 is further said to have stated that A4 [since expired] had given these names for instructing as to which person has to place bombs in which place and seizure mahazars recites that they were all seized. The mahazar further recites that A9 had shown to the Investigating Officer and the panch witness a cot on the side of the wall where he had sat along with A2 & A3 to discuss as to in which of the Churches bombs have to be placed and that the bombs to be exploded had been stored in an almirah near the door for about a month and that on 9.7.2000, A1, A2 & A3 had brought two bombs and that A9 had given one bomb which was with him to them and that A1, A2 & A3 had sat on the very cot and had checked three bombs.150
163. In this regard, Sri. Nilogal, learned SPP has placed reliance to accept the contents of the mahazar wherein is recorded the statement/information said to have been given by A9 about the discussion that had taken place amongst A1, A2 and A3 and involving himself and exchange of handing over of bombs as admissible evidence within the scope of section 8 of the Evidence Act.
164. The next mahazar Ex.P14 is one that is drawn on 3.8.2000 at the work place of A9 i.e., inside BEML factory premises in the presence of PW.19 - the then Assistant General Manager and effecting seizure of MOs. 148 to 153. Amongst the seizures effected, significance is in respect of the seizure of ten floppies in MO Nos.148 & 149 each containing ten floppies and MO No.150 a big packet containing two small packets containing 18 and 19 floppies respectively. It is stated in the mahazar that these items produced by A9 from his table drawer.151
165. Significance of these floppies is that floppies under MO NOs.148 and 149 had been taken to the office of the COD Head quarters and print outs of the contents of the floppies had been retrieved on 29.08.2000 as per Ex.P26 drawn by PW.66 and in the presence of panch witness PW.21 and the print outs being marked as Ex.P16 to P25 said to be print outs from the floppies MO Nos.148 and 149 that had been seized at the instance of A9 from his table drawer.
166. It is the version of the prosecution that the print outs revealed a wealth of information. The mahazar recites that Sri. Venkatesh - computer expert had inserted the floppies one after the other into a print machine and had taken out the prints published from each of the floppy and had shown the prints to the panchas and it had been signed by the Panchas and said Venkatesh on each print out and details of the print outs from these floppies revealed about Defence installations, Oil Refineries of ONGC, details of Defence Establishment in Bangalore City, particularly, ISRO and 152 Satellite Centre at Hassan, the access to National Remote Sensing Centre, aerial survey and mapping of National Remote Sensing Centre, about Hassan INSAT Master Control Facility, about training centre at IIRS Dehradun, about image processing software, names and telephone numbers of the officers in these organizations, information about nuclear fuel complex as per print out and floppy-PH, about Army-54, INF Division, Seabird, Hyderabad, Defence Laboratories and telephone numbers about LPG Bottling plants, Southern Region, blue print of Kirana Manufacturer at Bangalore, blue print of Jacquar etc.
167. While submission on behalf of the prosecution by Mr. Nilogal, learned SPP, with reference to such material is that these are all very vital information about the Defence establishments and strategic establishments supporting defence activities and also Oil & Gas Manufacturing Plant and very possession of such information points to the purpose for which information has been gathered. The copy 153 of the translation of the letter at pages 6 to 9 of the print out from the floppy had indicated communication sent by A8, A9 and A4 to A7 giving information about the Defence installations and also about strong base of RSS being present at Bangalore and strategy to attack these Defence establishments and need for setting up a missile launching station within the radius of 7 kms., from Bangalore city which all indicate acts of sabotage and waging of war being planned and at any rate, conspiracy being made in this regard.
168. On the other hand, submission of Sri. Hashmath Pasha, learned counsel for the appellants - accused persons with reference to recoveries effected at the work place of A9 and A17 is that firstly the mahazar not indicating the opening of the seal which admittedly had been put by the Security Officer of BEML on learning about the arrest of A9 and A17 and secondly the considerable interval between the recoveries made following statement of A9, as A9 had been arrested on 23.07.2000 and recovery at the work spot was 154 on 3.8.2000 after interval of 12 days and that too after a search had been conducted at the residence of A9 on the very day of his arrest and at his behest, whereas the recovery at the work place is only after about 11-12 days thereafter which definitely creates doubts about the genuineness of the recoveries. The argument addressed is also in respect of recoveries at the work spot of A17, namely, absence of entry at the gate about the entry of PW.66 - Investigating Officer and the seal, is urged in respect of the recoveries at the work place of A9 also. Insofar as the contents of the print outs are concerned, the non examination of the computer expert Venkatesh who had taken out the prints is pointed out to be yet another circumstance to doubt the genuineness of the print outs and the floppies recovered and non fulfilling of the requirement of accepting the printouts in the nature of secondary evidence by not producing the originals of the floppies and not adhering to the procedure under section 65[b] of the Evidence Act are all pointed out to constitute 155 infirmities in the quality of the evidence and cannot be admitted as evidence as against the accused persons and it is therefore submitted that recovery and the material and information pursuant to the mahazars under Ex.P177 and P14 drawn at the work place of A9 and A17 and the mahazars depicting printouts taken at the office of PW.66 cannot be admitted as evidence against them and at any rate does not constitute acceptable legal evidence based on the legal position that emerges from the authorities relied upon and referred to above, by Sri Hazmath Pasha.
169. One mahazar that has been drawn and referred to and relied upon by learned trial Judge is at the residence of A10 under Ex.P9 on 23.07.2000 drawn by PW.49 - Police Inspector who had been deputed to search house of A10 by PW.66 and in the presence of PW.14 and PW.15 and the recovery of MOs.84 to 94 pursuant to the voluntary statement of A10 and Ex.P262. Significant recoveries amongst other things is said to be on behalf of the 156 prosecution, the recovery of English pamphlets with inscription of warning to Christian Missionaries which according to the prosecution case reveals conspiracy to wage war was made which was in common amongst A1, A10 and A17 from whose residences had been recovered the very pamphlets.
170. Mahazar Ex.P273 drawn on 8.8.2000 drawn up by PW.66 at the residence of A-8 which is in the official quarters of Air force at Gurgaon, Delhi and in the presence of his wife and seizure of MOs 188 to 202 and negatives of photographs as per Ex.P284(a) to Ex.P298(a). A-8 had been arrested from his quarters on the morning of the very day and his house had been searched. No particular incriminating material has been seized from the residence of A-8 except for material showing his involvement with Deendar Anjuman Organization and he being a follower.
171. The other mahazars which are relied upon on the side of the prosecution are Ex.P161 to P166 which were drawn at 157 the instance of A9 & A10 within the limits of Hyderabad city who according to these mahazars have pointed out the places where members of the Organization had met for working out plan of action about the activities that they have to try out to achieve the object of their organization, but no recoveries have been made at these places.
172. We shall now examine the evidentiary value of the documentary evidence in the form of these mahazars. The earliest mahazar drawn after the blast that took place in the Maruthi Van in Magadi road is the mahazar drawn at the house of A1 on 10.7.2000 under Ex.P7. Accepting the contents of the mahazar at its face value, the material recovered at that time would at the best indicate that A1 is a member of Deendar Anjuman organization. He may be a very ardent follower and has been keeping in contact with other members of the organization. Ex.P7 by itself does not contain any positive incriminating material either against A1 or against other accused persons. The next mahazar drawn 158 under Ex.P1 is at the spot. Contents of this exhibit does show that A1 was in possession of the blast material planted at the van which he was driving from which can assume for certainty as even the accused has stated that he was driving the vehicle and was trying to impart lessons in driving to A3 and therefore, was found in company with regard to the presence of A3 accused himself has stated that he had been picked up at the request etc. Be that as it may contents of this mahazar definitely reveals that the Maruthi Van bearing registration number KA-02-8296 was in his possession and was carrying blast material and at that time A2 and A3 who died pursuant to the blast were in the van and in fact A1 himself has also got seriously injured in the blast. The mahazar, its contents etc. apart from the other oral evidence does reveal incriminating material of possession of explosives with which A1 can be associated. The recovery of pamphlet containing the slogan warning to Christian missionaries to stop conversion or quit India is a material that can link A1 who whatever message he wanted to infer 159 from the contents of the pamphlet and also recovery of the computer that had been found in his house and seized under Ex.P7-mahazar also containing in its hard disk, soft copy of the contents of the pamphlets MOs 2 and 3. Prosecution case is that pamphlets seized as MOs 2 and 3 are in the nature of materials sought to be planted by the accused persons at the place where bombs were sought to be exploded and in churches and in the present case the blast having not taken place at any place of worship, but even as stated by the prosecution itself that it may be due to friction when the vehicle was being driven at high speed and because of the road hump, the vehicle had a severe jolt, MOs 2 and 3 at the most constitute material which was intended for an act of sabotage or even possibly causing disruption and disharmony to create communal rift between the two communities in the form of members of Christian community being warned or otherwise, the other consequences would be such bomb blast etc. and the marks 'om' on this to create an impression that it was done by 160 members of hindu community so that members of Christian community become hostile towards the members of the hindu community and as such if achieved would have been the cause for prosecuting the accused persons for the offences u/ss. 124A and 153A cannot have much significance as a piece of evidence in a situation of accidental blast, but could have constituted material if had been used for the purpose for which it was created as suggested by the prosecution.
173. The contents of Ex.P179-spot mahazar revealing the damage caused to the Maxi Cab owned by the complainant- PW8 in supportive of the bomb blast have taken place but that by itself cannot and does not take the prosecution case, any further, particularly regarding the presence of accused persons except A1 who was present in the Maruthi Van when the blast took place, the mahazar drawn at the house of A17 on 15.7.2000 and the recoveries made therein also discloses the involvement and membership of A17 in the 161 Deendar Anjuman institution and its movements. Nothing incriminating regarding A17 with reference to the offences charged with are found or recovered pursuant to this mahazar.
174. The mahazar drawn at the residence of A10 under Ex.P9 on 23.7.2000 at the best can be said to constitute material for recovery of the pamphlets containing slogan MO87 and recovering six English pamphlets which are the inscription of warning against Christian missionaries and the other material literature particularly not only about the Deendar movement, but other religious activities does show that A10 is also a member and follower of the movement, which by itself does not reveal the commission of any offences, but nevertheless constitute material for drawing possible inference if found as a fact that along with the other accused if they have a common plan or agreement to carry any offence in furtherance of such agreement.
175. The mahazar Ex.P177 drawn on 23.7.2000 at the house of A9 yet again while it has revealed from the 162 recoveries that A9 is also a member of the Deendar movement and was a active participant etc., here again no specific incriminating material is seized or recovered at the instance of A9 which can said to be a new fact discovered pursuant to an information given by the accused person within the scope of Section 27 of the Evidence Act. Submission of Nilogal Special SPP is that the mahazar also contains the statement made by A9 who had pointed out to the panchas the place where he along with the accused persons A1 to A3 sat and discussed about the deployment of bombs in the churches and the other accused checking the bombs sitting in a corner near the wall are sought to be accepted as reliable and as an admission on the part of A9 based on the ratio of the judgment of the Supreme court in NAVJOT SANDHU [supra] pointing out that it could be relevant with regard to the conduct of the accused u/s.8 of the Act, is, in our considered opinion not as indicated in the above said case particularly as the statement incorporated in the mahazar attributed to A9 is not thereafter supported by 163 examining any person with regard to the same nor does it constitute discovery of a new fact pursuant to the information given by the accused as the accused had not stated anything about the bombs having been brought to his house by A2 and A3 and A9 said to be in possession of the bomb given to them was not part of the information given to the investigating agency which has led to the discovery of the fact but being in the nature of admission made before the police officer and as already pointed out by Mr.Pasha cannot be proved against the accused and on the other hand as per Sections 25 and 26 of the Evidence Act it is not permitted to be proved against the accused persons.
176. We also notice that in the Parliament bomb blast case, the information given to the police persons was by a person who was caught red handed during the operation and it was only for the purpose of conduct of the accused, reliance was placed about the information given regarding the place or purchase of material used in the commission of offence of 164 the deceased terrorist and in fact in this case the Supreme Court found that on facts while that information also could not be used within the scope of Section 27 in that case it was sought to be saved only with the help of Section 8 of the Evidence Act and to the extent regarding the conduct of the accused.
177. Moreover, we are of the clear view that the narration in a panchanama or a mahazar by itself is not proof, unless it is further made good by any person who has knowledge of the same, so testifying before the court and without the same the contents cannot be admitted as evidence. Submission of Sri Pasha that criminal jurisprudence as administered in this country and in terms of the procedure under the CrPC ensures a degree of safeguard to the accused persons; that anything which is said to be against accused persons has to stand the test of challenge and when a witness testifies in respect of any fact before a court as against an accused person, the accused person has a right 165 to cross-examine the witness, which is a sine qua non and part of principle of natural justice; that accepting the narration as inserted in the panchanama drawn by police officer without further proof of the narration or statement incorporated in the panchanama will clearly amount to a denial of opportunity and failure of justice as against the accused persons.
178. It is, therefore, that we cannot place reliance on the statement that is merely incorporated into a panchanama which is a panchanama to drawn for depicting the state of affairs that existed at the time of drawing of the mahazar and not to recapitulate a past event or to forecast a future event. In the instant case, it is a fortiori so being in the nature of an admission made by the accused before a police officer and as noticed earlier being hit by the provisions of Sections 25 and 26 of the Evidence Act. Reliance placed by Sri Pasha on the decisions of the Supreme Court in the case of NARBADA DEVI GUPTA 166 [supra] and MALAY KUMAR GANGULY vs SUKUMAR MUKHERJEE [2010 SCW 769] in the context of acceptability of the contents of ExP260 and the ratio therein equally applies to the present situation for accepting the so- called statement attributed to A-9, stating and indicating the place where he along with A-3 sat and discussed the plot for carrying out the criminal activities of planting bombs in churches etc. It is, therefore, we find ExP177 does not constitute a material more than for drawing an inference that A-9 was an active member of the organization in question and not for anything more. We reject the argument on behalf of the prosecution as submitted by Sri Nilogal for accepting the statement attributable to A-9 as an admissible evidence against A-9 on the basis of the ratio of the decision of the Supreme Court in the parliament attack case.
179. That takes us to the mahazars drawn at the workplace of A-9 and 17, which, to some extent, have certain common 167 features. There is no doubt if the recoveries at the workplaces of A9 and 17, if are proved against these accused persons in a manner as permitted in law, it may constitute incriminating materials as against A-9 and 17. Except for cover containing four copies of the pamphlets mentioning 'last warning to Christian missionaries etc., may be on par with the effect of recovery of a like material from the residence of A-10 and it is, perhaps, the only incriminating material, there is a challenge posed to this also. While Sri Pasha pointed out that recovery itself is suspect for the reason that the witness who has testified to ExP13 mahazar i.e. PW19 and who was also a witness at the time of drawing of the mahazar and later deposed as PW19, the evidence not indicated that whether in the presence of the investigating officer - PW66 the seal that had been put by the security officer as stated by him in his deposition was got opened in their presence and at any rate not so indicated in the mahazar drawn on the date of the drawing of the same i.e. on 29-7-2000, but the information to this effect being 168 forthcoming before the court for the first time when he deposed before the court 5 to 6 years later, the contents of ExP13 and the recoveries made pursuant to it becomes suspect and non-entry at the gate of the factory, about PW66 visiting the factory on that day is yet another infirmity pointed out and this infirmity coupled with the fact that recoveries at the instance of A-17 from his workplace was made two days after his arrest, though the next day a mahazar was drawn at his house pursuant to the information said to have been given by him and certain recoveries had been made. These circumstances definitely create a doubt about the acceptability of the evidentiary value of ExP13.
180. Similar argument in respect of ExP14 mahazar drawn on 3-8-2000 and the recoveries yielding MOs 148 to 153 from the desk drawer of A-9, suffers from the very same infirmity as pointed out by Sri Pasha in the case of ExP13. Non-mentioning of opening of the seal by the security officer in ExP14, absence of entry about PW66 entering the factory 169 premises at the factory gate and the fact that the recovery being almost 10 to 11 days after the arrest of A-9, are all circumstances creating doubt and throwing suspicion about the acceptability of the contents of the mahazar and the recovery pursuant to it. Even otherwise, we find that the recoveries under ExP14 particularly in the form of floppies MOs 149 and 148 by themselves are not complete to reveal any incriminating material or data against the accused, as it is the version of the prosecution that the floppies were taken to the office of the CoD headquarters and printouts were taken on 29-8-2000 through a computer expert namely Venkatesh and in the presence of PW21 Lokesh and the mahazar being drawn by PW66 investigating officer. Here again, there is a considerable time gap between the date of seizure and retrieval of the floppies and taking out of printouts as per ExP16 to 25 and the panchas or the investigating officer not speaking about the safeguard which was required to be observed when seized materials are sought to be retrieved and used for other purpose, further 170 compounded by the non-examination of the computer expert who, admittedly, is a person who had taken out prints using his expert knowledge, are all yet again circumstances which render suspect for accepting the contents of the printouts and the information and fresh facts as disclosed from the contents. The contents, no doubt, being in the form of rich information about the defence institutions, strategic manufacturing places, oil and gas producing factories, navy or air force bases, information about the officials of army, navy and air force and particularly if it is being sent to any person in a foreign country can definitely constitute material against persons possessing it and more importantly the contents of Urdu letter said to have been sent by A-4 to A-7 in Mardhan in Pakistan not only passing on such information but also egging upon the person to have a missile launching station within a radius of 7 kms from Bangalore for striking at strategic defence locations. The manner in which these facts are sought to be discovered and the procedure followed leave much to be desired and creates 171 doubts about the genuineness of the recoveries and follow up action. At any rate, the recoveries and the information sought to be made out from the recoveries not meeting the legal requirements of seizure mahazars and making use of the seized materials as material objects to constitute evidence against the accused persons and with the settled legal principle that the benefit of doubt always enures in favour of the accused, we find it rather difficult to accept the information or fact as revealed from recoveries pursuant to ExP14 mahazar as acceptable evidence to support the prosecution case.
181. This apart, the contents of the mahazar by themselves also not in the nature of a primary material, unless proved in the manner known to law and not being testified by further follow up action, we find even accepting it at its face value, the recoveries as per mahazars may not get elevated to the status of proof or meeting the requirements of proof beyond reasonable doubt. The recovery mahazar ExP26 172 drawn up at the office of PW66 on 29-8-2000 in the CoD headquarters also suffering from this infirmity, we find incriminating materials in terms of ExP14 against A-9 is lacking, if ExP14 itself should be taken as material read in combination of ExP26 and 177.
182. One another argument of Sri Pasha, learned counsel for the appellants, is that any evidence attributable to an electronic equipment, in the sense an electronic record, can be proved in the form of and in the manner envisaged under Section 65B of the Evidence Act, viz., the contents of the electronic record in the form of printouts, can be proved as documents by fulfilling the conditions mentioned in sub- section (2) viz., that the computer was used regularly and the person so operating the computer have lawful control over the use of the computer; that such information has been regularly fed to the computer in the ordinary course of said activities; that the computer was functioning normally during the period and that the accuracy record should not 173 be affected and that it should be acceptable as secondary evidence, is countered by Sri Nilogal by pointing out that the provisions of Sections 65A and 65B were not on the statute book at the time when the printouts in question were taken, we have even without reference to these provisions examined the acceptability of the printouts by observing the normal safeguards for producing a secondary evidence, as noticed above, and having found that it is not one inspiring the confidence for accepting it as in the form of secondary evidence, the question does not arise for our examination, but we are definitely not fully convinced about the manner of taking out the prints from the floppies said to have been recovered in terms of ExP14 mahazar and therefore not much credence can be placed for supporting the prosecution case on the contents of ExP16 to 25.
183. Exp273 is another mahazar drawn on 8-8-2000 at the residence of A-8, which is inside the official quarters of air force at Gurgaon, New Delhi. The material seized there 174 under in the presence of wife of A-8 viz., MOs 186-202, at the best, only revealing A-8 is also a follower of Deendar Anjuman organization and even as per the prosecution case not yielding any incriminating documents as against A-8 may not have evidentiary value for proving the prosecution case against A-8 or any corroboration with other materials or evidence on record.
184. The result of drawing up of mahazars ExP161 to 166 at the instance of A-9 and 10 and in the presence of panch witness is only to record the statements attributable to these accused to show the places where the A-9 and 10 had met with other accused persons for holding meeting to carry out the objects of the movement etc., and these statements attributable to these accused again suffer from the very vise which we have noticed in respect of the statement attributed to A-9 under ExP177 - mahazar drawn at the residence of A- 9 on 23-7-2000. We find the contents of the mahazar and the information, if one can gather from, are not of any 175 acceptable evidentiary value supporting the prosecution case.
185. That takes us to other evidence in the form of oral evidence let in by the prosecution to support the prosecution case and the prosecution has while placed heavy reliance on the evidence of PW.28 and PW46, it has also placed reliance on the document ExP260 and in fact is sought to contend that it constitute substantial evidence for proving the prosecution case.
186. The testimony of PW28, who is sought to be a witness who had seen A-1 to 3 in the vicinity of a Church where a bomb blast had taken place and A-1 and 2 having gone into the said church namely St Peter and Paul Church, located within the jurisdiction of Jagajeevan Nagar police station, Bangalore. It is stated by this witness that he had seen A-1 and 2 going inside the said church holding a bag and returning after some time and that they had told the other person, who was sitting in a van, the very van in which a 176 blast took place at Magadi road, and telling that chalo, kam hogaya.
187. We find the testimony of this witness not very relevant for this case, particularly as the blast which took place in the church at J J Nagar is the subject matter of SC No 696 of 2005 and in the present case it is not in dispute, even by the prosecution, that the blast that took place in the Maruti van at Magadi road on the night of 9-7-2000 was an accidental blast.
188. Sri Nilogal, learned SPP has contended that the evidence of PW28 is very material to demonstrate that A-1 to 3 had by their joint action planted a bomb inside the church at J J Nagar and were proceeding with bomb for further plantings in other churches, and that could not be achieved because of the accidental blast, but nevertheless, their past conduct has to be looked into and on the other hand Sri Pasha, learned counsel for the appellants, submitting that mere intention in itself is not one constituting an evidence 177 amounting to preparation of further commission of offence and that having been aborted even at the stage of preparation and not even an attempt being made for the commission of any offence for which no penal provision is provided for in the IPC, except for a situation covered by Sections 122, 399 and 402 IPC and there being no charge against the accused under any of these sections, evidence of PW28, even accepting it at its face value and even assuming for arguments' sake but without conceding, can be accepted, it does not result in the accused being found guilty of any of the offences with which they were charged. It is of no consequence and therefore accepting this submission, we do not want to go into the evidence of PW28 any further. We find this argument of Mr. Pasha to be sound on the legal premise.
189. In so far as the testimony of PW46 is concerned, it is relied upon by the prosecution to make good the case of conspiracy punishable under Section 120B IPC. In so far as 178 the charge under Section 120B IPC is concerned, legal hurdle of double jeopardy under Section 300 CrPC was pressed into service and we have found as above that the charge being bad in law and on the same fact, attracting Section 300 would depend on the fact situation, as pressed into service by the prosecution for making good the charge under Section 120B IPC.
190. Further the evidence of PW46 is concerned, while substantial part of his evidence only indicates the background of the movement of the organization and the meetings held at Hyderabad and Nuzvid and this set of facts having been sought to be the facts leading to the charge under Section 120B IPC in the case before a Hyderabad court and in fact some of the accused having been found guilty of the charge also in the same set of facts the accused had faced trial and they cannot be proceeded against in the present case also. However, the argument of Sri Nilogal, learned SPP being that the evidence of PW46 also reveals 179 facts relating to meeting held at Batkurki in Raydurg taluk and it is here that further plans were hatched for carrying activities in furtherance of activities which had already been agreed to.
191. No doubt, Sri Pasha has raised a legal contention that PW46 being in the position of an accomplice who had very much participated in the meeting, if at all the meeting had taken place, it should not have been brought through the backdoor testimony of PW46 as a witness and the argument is sought to supported by authorities referred to above, we find that in the testimony of PW46, there is no reference to the action plan sought to be carried out at Bangalore, as the present case relating to the incident which had taken place at Bangalore and more importantly which is the result of an accidental blast. While for the purpose of examining the testimony of PW46, we do reject the submission of Sri Pasha that this witness could not have been examined as a witness for the reason firstly that he had not been arrayed as an 180 accused and secondly the testimony does reveal that he had not agreed to be part of the acts of sabotage or acts of sedition or waging war against the state, if at all was suggested to be carried out by the leader of the movement. In this state of factual position and as to whether he could have been arrayed as an accused at all being firstly in the wisdom of the prosecution and secondly if found it is a case of a person committing offences, it is for the court to direct him to be arrayed as an accused, and that having not been done, we find that this witness was in fact a de facto witness and not an accused person. The procedure that is required to be followed for accepting the evidence of an accused as approver as permitted by court in terms of Sections 306 and 307 CrPC is not exactly attracted to the present situation. It is, therefore, we are examining the evidence of this witness at its face value.
192. While our examination of the position of PW.46 for testifying before the court has revealed that his evidence 181 cannot be rejected for not following the procedure of sections 306, 307 of Cr.PC as virtually he will be in the position of the accused and therefore his testimony cannot be kept out, but nevertheless, this witness having himself stated that he was a participant in the meeting that had taken place at Batkurki in Karnataka and even the earlier meeting in Hyderabad and though he had exonerated himself by claiming that he had attended the meeting only for the purpose of recovering the dues from other accused persons and he had also expressly disassociated from carrying on violent acts of sabotage, nevertheless, in our considered opinion, remains in the position of an accomplice whose evidence is made acceptable within the scope of section 133 of the Indian Evidence Act, 1872. Section 133 of this Act recognizes even accomplice to be a competent witness against the accused persons and the conviction being not rendered illegal merely because it is based on uncorroborated testimony of accomplice. However, as pointed out by Sri. Pasha, learned counsel for the 182 appellants, there is a rider to this section 133 of the Evidence Act at illustration[b] to section 114 of the Evidence Act, reads as, "That an accomplice is unworthy of credit, unless he is corroborated in material particulars; and begins with preamble 'The court may presume'.
193. Though Mr. Nilogal contended that PW.46 cannot also be placed in the position of an accomplice as he was only attending the meeting for recovery of money etc., we find it difficult to accept this proposition and on the other hand even according to his own testimony he having attended the meeting regularly and being a follower of the movement even as per his own statement, necessarily stands in the position of an accomplice and therefore the caution aired in illustration[b] to section 114 of the Evidence Act, has to be kept in mind while appreciating his evidence and therefore corroboration to his testimony which is in our opinion is the required aspect which merits examination. 183
194. In this regard, while Mr. Pasha, learned counsel for the appellants has placed reliance on the Judgment of the Privy Council in the case of 'BHUBONI SAHU v. THE KING' reported in AIR 1949 PC 257 and submits it does call for corroboration, Mr. Nilogal, learned SPP has submitted that corroboration has to be found in the admission and submitted even assuming PW.46 should be treated as accomplice, then corroboration is very much available in the form of admission of the accused persons themselves.
195. We find it difficult to accept the submissions of Mr. Nilogal, learned Public Prosecutor for the reason that corroboration should be forthcoming from independent quarters and not by way of admission of accused person and on the other hand it could be the other way that in respect of an admission, testimony by witness who is in the position of accomplice may constitute corroboration but not vice versa.
196. Though Mr. Nilogal, learned SPP contends that even if he is an accomplice, being in the nature of passive 184 participant who had not agreed to participate in the conspiracy, there is no requirement of examining his testimony for acceptance with corroboration any material particulars, we are unable to accept this submission, as we find that PW.46 is not a totally independent witness, but a witness who had been involved in the activities of other accused and belonging to the same organization and therefore he is very much in the position of an accomplice and the provisions of section 114 of the Indian Evidence Act, 1872, is attracted, particularly, illustration[b] of section 114 of the Indian Evidence Act, 1872.
197. With no independent corroboration forthcoming to corroborate the material particulars the testimony of PW.46, evidence adduced by the prosecution through PW.46 remains a weak evidence for the purpose of securing conviction based on such weak evidence.
198. We, nevertheless, find the testimony of PW46 is not linking to the meetings said to have been held at Batkurki or 185 to the incident at Bangalore and the testimony only relates to the conspiracy for the subject matter of the case and the trial before the Hyderabad court and even according to the prosecution, there is fresh facts, fresh conspiracy hatched and in the present case, even in terms of the prosecution version, the conspiracy if at all is hatched in the house of A- 1 and 9 and there being no reference in the testimony of PW46 to these efforts at Bangalore and for the purpose of such efforts, we are of the considered opinion that the testimony of PW46 does not constitute a piece of evidence to make good a charge of conspiracy against the accused persons in respect of the event of accidental blast that had taken place in the Maruti van belonging to A-1, which got blasted on 9-7-2000.
199. Yet another situation which creates doubts about the testimony of PW46 and as pointed out by Sri Pasha, learned counsel for the appellants, is that PW46 was not a charge sheet witness, but has been examined as a witness much later on an application filed by the prosecution on 29-9- 186 2006, an application filed under Section 311 CrPC. It is on record that this witness had been examined under Section 164 CrPC in connection with a case registered at Keshavapura police station, Hubli by a magistrate at Hubli. More so, when the version of PW46 being sought to be brought on record more than six years after the prosecution filed charge sheet as against the accused persons and therefore the evidence of PW46 does not necessarily inspire the confidence of this court for acceptability of his deposition. It is, therefore, we hold that the testimony of PW46 in no way advances the case of the prosecution for supporting the charge under Section 120B to hold that there was a conspiracy to commit offences and which, according to the prosecution, could not be carried out due to the accidental blast that took place at Magadi road.
200. From the examination of the evidence of PW46, we find that the testimony is not supportive of the prosecution case of a fresh conspiracy being hatched up either at the meeting 187 held at Batkurki or in the houses of A1 and A9 at Bangalore. We have also found on an examination of documentary evidence, particularly, through the mahazars drawn at the house of A1, at the house and work place of A9, the prosecution has failed to make good its version of fresh conspiracy being hatched up on acceptable legal evidence. Mr. Nilogal, learned SPP, appearing for the respondent-state, having specifically contented that the prosecution case and the charges pressed into service against the accused persons being based only on the fact situation, such as, further meeting and conspiracy for the bomb blast that took place in the Maruthi van on Magadi Road, Bangalore and therefore the argument of Sri Pasha, learned counsel for the appellants, that the prosecution is bad for violating the safeguard of double jeopardy as enshrined in Section 300 CrPC is not violated, as the prosecution itself has limited the case and therefore technically speaking Section 300 CrPC is not attracted on facts. Prosecution having failed to make good the case of fresh conspiracy, prosecution charge under 188 Section 120-B IPC fails. However for the purpose of answering point No.1 raised, we hold that in the present case on the version of the prosecution case, Section 300 CrPC is not attracted and this point is answered accordingly.
201. In so far as the evidentiary value of ExP260 is concerned, considerable weighty arguments have been advanced, both on the side of prosecution and the appellants-accused. It is no doubt true that on the authorities referred to and relied upon by Sri Pasha, learned counsel for the appellants, it cannot constitute a confessional statement either within the provision of Section 164 CrPC nor is a piece of evidence to advance the case of prosecution, but the prosecution has sought to support the contents of ExP260 by contending that it is in the nature of extra-judicial confession, admissible within the scope of Section 24 of the Evidence Act.
202. It is also the version of prosecution that once it is admitted to be an extra-judicial confession saved under 189 Section 24, and within the limits of Section 24, there cannot be any further restriction for the operation of Section 30 of the Evidence Act for the confession of an accused constituting a material for securing conviction of a co- accused.
203. On the other hand, though Sri Pasha, learned counsel for the appellants, very strongly contended that ExP260 being in the nature of a letter addressed to the third additional chief metropolitan magistrate, Bangalore and the circumstance under which it had come into existence is highly suspicious and doubtful, particularly as it was said to have been written by A-8 while he was in jail and running into such details; that it was not possible for any one to remember so much of the past incidents so vividly and put into in narration running into 42 pages and the contents of it by itself makes it highly doubtful about the voluntary nature etc., before going into the contents etc., we would like to examine the legality, in the sense, acceptability of ExP260 190 as a piece of evidence. If ExP260 should have been an extra judicial confession, it could not have been sent to a magistrate and a confessional statement addressed to a magistrate is, as per the submission of Sri Pasha, to be only in accordance with the provisions of Section 164 CrPC and the authorities to support this argument to say that a thing required to be done in law, in a particular manner, can be done only in that manner and in no other manner. This proposition is supported by authorities referred to above.
204. It is to be noticed that Section 164 CrPC is a special provision in CrPC and enables using of confessional statement of an accused as an admission and can be proved as evidence against him. It constitutes an exception to the settled legal principle, that an accused cannot be compelled to lead evidence against himself. It is, therefore, the procedural safeguard should be followed to the hilt, as contemplated in Section 164 CrPC. Though it is addressed to a magistrate by A-8, the magistrate has not bestowed his 191 attention to it nor has he examined A-8 before him to follow the procedure and also to administer caution etc., required to be done under Section 164 CrPC.
205. It is also submitted by Sri Pasha who has placed reliance on the decision of the Supreme Court in the case of SITA RAM [supra], pointing out that even a letter addressed by an accused person found near the body of his wife that he had murdered was good enough as an extra- judicial confession, we find that and as pointed out by Sri Pasha that the accused person was in judicial custody at the relevant time and the contents of ExP260 while is addressed to the magistrate is more in the nature of a bargain for securing his freedom and for being pardoned and therefore cannot be a voluntary free confessional statement but being in the nature of a bargain.
206. Though the learned SPP has placed reliance on an authority to submit that a confession coming from the bottom of the heart should not be doubted, we have our own 192 doubt as to the acceptability, having regard to the nature of the contents of ExP260, whether it is a confession made out of remorse or for bargaining a pardon, is not free from doubt. But, more importantly, and as pointed out by Sri Pasha, learned counsel for the appellants, ExP260 remains as a letter assuming that it had been written by A-8 and was testified by PW65 - superintendent of central jail, Bangalore, it does not go further, as it has neither reached the person to whom it has been addressed, in which event the procedure contemplated under Section 164 CrPC should have been followed, nor the contents of it, which is sought to be relied upon by the prosecution has been made good in the manner as permitted by law and under the provisions of Sections 61 and 62 of the Evidence Act. What is pointed out by Sri Pasha is that if it should be treated as an extra-judicial confession to any third party, other than the magistrate, it can be proved only by examining the person to whom an accused person has confessed, who should come and testify before the court to withstand the test of cross-examination. 193
207. In the instant case, we find the contents of ExP260 assuming that it can be treated as a document in the nature of confession statement, it has not been proved by examining any person much less the magistrate to whom it has been addressed to. Examination of the magistrate to prove the contents of ExP260 also being not permitted, in view of the requirement of strict compliance of the provisions of Section 164 CrPC, that is not a legally permissible course of action. In such circumstance, it should be held that ExP260, assuming that it is a letter in the nature of a document which the prosecution seeks to rely as an extra- judicial confession, having not been proved for its contents nor can it be admitted as evidence in the absence of proof of the contents, it remains as a letter and not resulted in either an extra-judicial confession within the scope of Section 24 of the Evidence Act or as a document proved for its contents in terms of Sections 61 and 62 of the Evidence Act. When ExP260 is not a piece of evidence which has been admitted 194 as per legally enabled provisions, it being relied upon in terms of Section 30 of the Evidence Act for constituting material against other accused is a far fetched proposition.
208. Sri Nilogal, learned SPP, has pointed out that A-8 has, for the first time, disputed contents of ExP260 while being examined for recording his statement under Section 313 CrPC, which was more than seven years and therefore the court should not reject ExP260 as a confession statement just because of the retraction, we find that it is of no consequence, as the question of examining the effect of retraction in the wake of earlier confessional statement comes into picture only when the confessional statement is accepted and is a statement as recognized in law, either as a confessional statement or as a document, contents of which have been proved. We, having found that ExP260 cannot be either treated as a confessional statement even within the scope of Section 24 of the Evidence Act as an extra-judicial confession and even otherwise to be treated as a piece of 195 evidence whose contents having been proved. It being not an admissible piece of evidence for the contents of the documents though it had been so marked, the acceptability of the confession and rejecting the retraction does not arise in the present situation.
209. Therefore, we do not propose to examine further the reliance placed on by Sri Nilogal, learned SPP on several authorities to indicate that just because a voluntary statement is retracted later and much later, the confessional statement does not necessarily lose all its value and it is for the court to examine the acceptability of the earlier confessional statement in the wake of a belated or an afterthought retraction. It is, therefore we hold that Ex260 cannot have any evidentiary value for supporting the case of prosecution.
210. That takes us to the testimony against A.16 the evidence on record available against A.16 for finding him guilty of the offences with which he was charged on the 196 basis of Ex.P.265 said to be a chit in the handwriting of A.16 which reveals the distribution of responsibilities to different persons including the accused for carrying on the different acts of sabotage and for achieving the object of the organization. Ex.P.265 is a chit recovered under Ex.P.177 mahazar drawn at the residence of A.9.
211. This recovery being independent of any information contained in any electronic device and recovery by itself and the prosecution having got it exhibited and having claimed that is in the handwriting of A.16 and recovery in the house of co-accused pursuant to Ex.P.177 -mahazar and if it is so, the effect of this recovery will have to be examined vis-à-vis A.16. It is the case of the prosecution that Ex.P.265 had been sent for examination and verification of the handwriting to the handwriting expert PW.67 along with specimen writings of A.16 and the handwriting expert PW.67 had opined that it is in the handwriting of A.16 and confirmed in the oral testimony the report that in his opinion 197 handwriting on Ex.P.265 and the specimen sent for comparison are similar and tallies with one another. It is therefore, the prosecution has attributed that A.16 is also one of the active participants in the criminal activities for which the accused persons have been charged. It is not even the case of prosecution that except for this material there is any other evidence on record, which connects or links A.16, who is the resident of Movva, Krishna District, Andhra Pradesh to the offending acts with which he and other accused persons have been charged.
212. Mr. Pasha, learned counsel for the appellants has pointed out that a testimony of this nature is never sufficient to secure conviction for the serious offence with which A.16 has been charged even assuming that is acceptable. However, Mr. Pasha has pointed out that the evidence against A.16 based on the opinion of the handwriting expert is not trust worthy of acceptance for the reason that the comparison of the handwriting on Ex.P.265 is not with 198 reference to any admitted writings and signatures of A.16, but even the prosecution case is that it is with some request writings of A.16, that further weakens the quality of the evidence and in our considered opinion a weak material and a weak evidence of this nature, while it is rather difficult to sustain the conviction based on only an incriminating document being attributed to an accused person based on a handwriting expert opinion; that is similar to the one examining, the comparison being not with that of admitted writing but with a specimen writing, the quality of evidence further gets deteriorated and it is therefore, that we have to hold that convictions in respect of A.16 on this material alone is not sustainable and is liable to be set aside.
213. In addition to the above evidence prosecution has also relied upon the testimony of the investigating officers PW.58 and PW.59. PW.59 was the second investigating officer and PW.66 was the investigating officer, who took over from PW.59 and completed the investigation and laid charge- 199 sheet before the Court. These witnesses have supported the prosecution case by supporting the mahazars draw by speaking to the correctness and validity of the mahazars drawn by them.
214. This apart, we find the evidence of PW.49 - R.N. Natraj Police Inspector, who had drawn the mahazar at the residence of A.10 in Chikkaballapur, has also supported the mahazar Ex.P.9 and the recovery of pamphlets MOs.87 to 94 amongst, which was MO.87 consisting 6 letters at Item No.7 and there was 6 copies of the pamphlets warning Christian Missionaries, etc.
215. Mr. Nilogal, learned SPP, for the purpose of supporting the judgment under appeal, apart from placing reliance in the above evidence on behalf of the prosecution has also submitted that the involvement of the accused persons in similar offence and being prosecuted for like conduct in the sessions case before the Hyderabad Court and being convicted for criminal conspiracy and being prosecuted in 200 other sessions case, where the accused persons were tried for like offence is relevant consideration in appreciating the conduct, we find it is not a supporting circumstance in favour of the prosecution to make good its case before the court and to prove the charges against the accused persons. A court undoubtedly is permitted to examine and appreciate the evidence on record. What has happened and what is the allegation made against the very accused in some other case cannot have any bearing and at any rate cannot be supplemented as additional evidence for the purpose of making good the prosecution case in any given case.
216. Sri H N Nilogal, learned SPP has very strongly urged that the organization of which the accused persons are members, has been shown to be a militant organization since its inception; that the members of the organization have been systematically carrying out acts of violence against the members belonging to other communities and the organization has also been now declared as banned 201 organization with effect from 28.04.2001, but this should not make any difference to the nature of the activities of the members of the organization, as they are carrying on violent acts even before the organization came to be formally declared as a banned organization and in this background, the incidents leading to the blast of explosive materials in a public place resulting in injuries to persons and loss of properties cannot be overlooked, though on the date of the actual incident of blast, the organization was not one which had been banned for its existence.
217. We have examined this argument, but found no substance to accept the same, as any act which amounts to an offence either under the provisions of IPC or other special enactments, must be an offence on the date of its commission and subsequent amendments in existing law or enacting a new law making the very act an offence will not in any way rope in the persons who might have committed the 202 act before the activity was declared to be an offending act under a law made by a competent legislature.
218. We find that there is a constitutional bar on the making of an accomplished act an offence by enacting a retroactive law. Also mere membership of an organization unless it is a banned organization and even by being a member cannot also result in the commission of an offence. That by itself will not render such a member an offender and if the organization is not a banned organization, unless the members of such an organization are shown to have committed other acts which constitute an offence under different laws, those persons cannot be prosecuted. We are supported in taking this view in the light of the decisions of the Supreme Court in the case of ARUP BHUYAN vs STATE OF ASSAM [AIR 2011 SC 957] and INDRA DAS vs STATE OF ASSAM [2011 CRL.L.J 1646]. In this view of the matter, we reject the argument advanced on behalf of the state by Sri H N Nilogal, learned SPP.203
219. Evidence placed before the court by the prosecution though has revealed possible subversive activities on the part of persons who may be either in possession of such material, relating to strategic defence organizations and their locations, places of manufacture of essential goods and supplies and names of senior executives in the control of such organizations, that by itself is not an end, as unless it is also shown that the information was in possession of the accused persons and the same was further used for sending it outside the country, and in this case to Pakistan where A- 7 resides, and the involvement of accused is also demonstrated, a mere possibility of enabling the accused to do something with the information and such possibility being not made good beyond reasonable doubt and the prosecution having not tied up all loose ends to definitely attribute the recoveries from A-9 and 17 specifically to any of the accused persons and such materials having remained without a definite connecting link to the accused persons, 204 the accused cannot be found guilty of the offences with which they are charged with any degree of certainty. It is because of such uncertainties, the accused persons get the benefit of doubt resulting in acquittal by reversing the order of conviction.
220. What is relevant is only the evidence adduced on behalf of the prosecution, in that particular case, until and unless otherwise enabled in law either for taking note of any other material or evidence as enabled in law. On the other hand, we notice that in terms of the provisions of Section 53 of the Indian Evidence Act, 1872 "In criminal cases, previous good character relevant.- In criminal proceedings, the fact that the person accused is of a good character, is relevant." and not bad character of an accused unless it had been held previously that he was a person of a good character. It is therefore, that we find no relevance or weight can be given to the factum of the accused either being prosecuted or having been convicted in other similar cases to advance the case of 205 prosecution and at any rate not supportive of the evidence of accused persons. It is for this reason, we reject the argument addressed on behalf of the prosecution. It is in the light of the above evidence, it is required to be examined as to whether prosecution has made good its charges against the accused persons.
221. We find that accused persons A.5, A.6, A.13, A.14 and A.18 have all been convicted for the offences punishable reading as follows :-
"A.5 namely Shaik Hashim Ali is hereby convicted U/s.235 [2] Cr.P.C. for the offence U/s. 120-B r/w S.121-A IPC and he shall undergo imprisonment for life and for the offence U/s.124-A IPC shall undergo imprisonment for life and for the offence U/s.153-A IPC shall undergo RI for 3 years. A.6 Mohd. Farooq Ali is hereby convicted U/s.235 [2] Cr.P.C. for the offence U/s. 120-B r/w S.121-A IPC and he shall undergo imprisonment for life and for the offence U/s.124-A IPC shall undergo imprisonment for life and for the offence U/s.153- A IPC shall undergo R1 for 3 years.
A.13 namely Abdul Habeed is hereby convicted U/s. 235 [2] Cr.P.C. for the offence U/s. 120-B r/w S.121-A IPC and he shall undergo imprisonment 206 for life and for the offence U/s.124-A IPC shall undergo imprisonment for life and for the offence U/s.153-A IPC shall undergo RI for 3 years. A.14 namely Syed Shamshuzama is hereby convicted U/s. 235 [2] for the offence U/s. 120-B r/w.S.121-A IPC and he shall undergo imprisonment for life and for the offence U/s.124- A IPC shall undergo imprisonment for life and for the offence U/s. 153-A IPC shall undergo RI for 3 years.
A.18 namely Syed Abdul Khader Jilani is hereby convicted U/s.235 (2) Cr.P.C. for the offence U/s. 120-B r/w S.121-A IPC and he shall undergo imprisonment for life and for the offence U/s.124-A IPC shall undergo imprisonment for life and for the offence U/s.153-A IPC shall undergo RI for 3 years."
222. It is not in dispute that the substantial evidence as against A.5, A.6, A.13, A.14 and A.18 as discussed above is only the so called confessional statement of A.8 in terms of Ex.P.260. We have already found that Ex.P.260 is not proved as either extra judicial confession statement or as to the contents of the document.
223. Insofar as the evidence as against these accused persons A.5, 6, 13, 14 and 18 are concerned, we find that 207 the conviction by the Sessions Court is mainly based on Ex.P.260, which we have already held has not been proved as acceptable piece of evidence for its contents. We do not find any other evidence, which can otherwise incriminate these accused and bind to the offence with which they are charged.
224. In this view of the matter it is obvious that the conviction of A.5, A.6, A.13, A.14 and A.18 under the provisions referred to above cannot be sustained as the rest of the evidence against them is very weak and not really one convincing for convicting them for the offences with which they were charged. The evidence on record in our considered opinion, does not make good the charges beyond reasonable doubt with which they were leveled and therefore reverse the order of conviction against them and we acquit A.5, A.6, A.13, A.14 and A.18 of the offences with which they were charged and accordingly, the sentence is set aside. 208
225. Insofar as A.8 is concerned, who is convicted for the offences as follows :-
"A.8 namely Syed Hasanuzama is hereby convicted U/s. 235[2] Cr.P.C. for the offence U/s.
121 IPC and sentenced to death, he shall be hanged by neck till he is dead, subject to confirmation by the Hon'ble High Court of Karnataka U/s. 366[1] Cr.P.C. A.8 Syed Hasanuzama is hereby convicted U/s.235 [2] Cr.P.C. for the offence U/s. 120-B r/w. 121-A IPC and he shall undergo imprisonment for life. This A.8 Syed Hasanuzama is also convicted U/s.235 [2] Cr.P.C. for the offence U/s. 124-A IPC and he shall undergo imprisonment for life. For the offence U/s.153-A IPC to undergo imprisonment for 3 years."
Here again the prosecution has placed heavy reliance on his confessional statement Ex.P.260 for securing such conviction. Other than Ex.P.260 in the case of this accused, we do not find any commensurate evidence to secure conviction of this accused for the offences with which he was charged.
226. Insofar A.10 is concerned, who is convicted for the offences punishable as follows :-
209
"A.10 namely Mod. Siddique is hereby convicted U/s.235 [2] Cr.P.C. for the offence U/s.120-B r/w.S.121-A IPC and he shall undergo imprisonment for life and for the offence U/s. 124- A IPC shall undergo imprisonment for life and for the offence U/s.153-A IPC shall undergo RI for 3 years."
and we find that apart from reliance placed by the prosecution on Ex.P.260 insofar as this accused is concerned, the other evidence placed before the Court by the prosecution is in the form of recovery of four pamphlets from his house at Chikkaballapur and we find as submitted by Mr. Pasha, learned counsel that recovery of material cannot by itself pin point for securing conviction under the serious nature of offence with which he had been charged. In our considered opinion, the evidence on record is not in the nature of a clinching evidence and if at all the benefit of doubt enures to the accused and not to the prosecution and as such the conviction is not sustainable.
210
227. A9 has been found guilty of the offences p/u/ss.121, 121A, 153A of IPC and is imposed the death sentence apart from other smaller sentences.
228. The prosecution has heavily relied upon the recoveries made at the instance of this accused at his residence and work place and also the oral testimony of PW46 and documentary evidence of P260 for securing conviction. Having found that the recoveries from the residence and work place of this accused which according to the prosecution has revealed incriminating material particularly for holding the accused guilty of the offence u/s.121 and 121A and other smaller offence and we have found the kind of evidence as revealed through the recoveries is not foolproof, for not having observed the necessary safeguards for the purpose of effecting seizure and also for the purpose of retrieving the information that had been stored in an electronic device. The evidence on record is not good enough to secure conviction under various provisions under which 211 he has been charged and even u/s.121A of IPC conspiracy very material based on which charges were placed against this accused being found not foolproof. Therefore, the conviction does not sustain.
229. A16 has been found guilty of the offences punishable under Section 120B r/w Sections 121A, 124A and 153 IPC and sentenced as below :-
He shall undergo imprisonment for life and for the offices U/s 124-A IPC shall undergo imprisonment for life and for the offence U/s.153-A IPC shall undergo RI for 3 years.
230. We have already discussed evidence against these accused to be only in the form of the testimony of PW67 hand writing expert and said to be only incriminating document against these accused. We find conviction does not sustain.
231. In so far as A17 is concerned, he is also found guilty of the offence u/s.121 and 121A, 124A and 153 and he is also 212 imposed the punishment of death sentence with other lesser sentences.
232. In case of A17 also the evidence against A17 as per the prosecution case is, apart from reliance placed on the testimony of PW46 and Ex.P260, the information as revealed from the mahazar drawn at his house and at his work place, we have held that recoveries at his residence during the second search and on being led to his residence on the basis of the information as revealed by this accused, is suspect and even the material and information as revealed through the recovery in terms of the mahazar Ex.P13 is also suspect due to the factum of the seizure that has been put by the security officer have not been opened and not so opened before the panchas before recoveries were effected. The evidence against this accused in terms of the recoveries therefore, become suspect and that other evidence having been found wanting, we are of the view that prosecution has 213 not been able to make good the charges as against this accused to sustain the conviction.
233. That leaves us with the conviction and the punishment imposed on A1. Though Mr.Pasha has urged the arguments as to the quality of evidence as against this accused for securing conviction, he submitted that it is also suspect and an alternative argument is also submitted that if at all A1 can be found guilty of the offence punishable u/s.5 of the Explosive Substances Act, and Section 9(1)(b) of the Explosives Act, and that he cannot be convicted u/s.3 of the Explosive Substances Act or u/s. 304 Part II of IPC, we find that on the evidence available on record and it being a fact as proved by the prosecution evidence that A1 was found in possession of the van wherein was being transported explosive substances, is a person who is to be held guilty of the offence punishable under Section 5 of the Explosive Substances Act and under rule 5 of Explosives Rules r/w. Section 9(1)(b) of the Explosives Act.
214
234. Insofar as conviction u/s.304 Part-II of IPC is concerned, we find that submission of Sri.Hashmath Pasha, learned counsel for the appellants, merits acceptance for the reason that the explosion that took place in the Maruthi Van while it was being driven on Magadi Road is not any deliberate act, but is an accidental explosion and if at all can be attributed to the rash and negligent driving of A1, the explosion being accidental, provisions of Section 3 are not attracted as it is not a deliberate explosion and for the same reason conviction u/s.304 part II cannot sustain as it is not an intended act of explosion. However, we find that the accused is to be found guilty of a lesser offence viz. u/s.304A of the penal code for causing the accident resulting in the death of A2 and A3 due to rash and negligent driving of the motor vehicle and accordingly we convict him for the offence u/s. 304-A IPC.
235. Due to the explosion caused in the Maruthi Van the damage to the Maxi cab which was in the vicinity and 215 injuries to PW1, the driver of the Maxi cab is made good on record and through the evidence and therefore, the conviction u/s.337, 427 are sustained.
236. We find that the conviction insofar as the offences punishable under Sections 121, 121A, 124A and 153A IPC and u/s. 3 of the Explosive Substances Act, 1908 are not made good by the prosecution on acceptable, clinching evidence and therefore, the conviction of A1 under these provisions is not sustainable.
237. As an outcome of the discussion of the evidence on record, we have held that the evidence of PW46 being in the nature of weak evidence not by itself capable of securing conviction and Ex.P260 cannot be of evidentiary value either as an extra judicial confession or as an independent document to prove its contents. We have also held that the recoveries and the material gathered to as recoveries as evidence, are suspect and therefore, the evidence on record can hardly sustain the convictions against accused persons 216 except for A1 and in respect of the offence as noticed above and on record.
238. It is therefore, we hold the evidence and the documents placed on record before the trial Court by the prosecution was not good enough to sustain the charges against the accused except against A1 and to the limited extent of the offences for which we have found guilty as discussed above.
239. Accordingly, we set aside the conviction and sentence imposed by the trial Court on all accused except for A1 and to the extent he is found guilty for the offence punishable under Sections 304A, 337, 427 of IPC and u/s. 5 of the Explosive Substance Act, and u/s. 9(1)(b) r/w. Rule 5 of the Explosives Act and Explosives Rules respectively.
240. A1 is sentenced to undergo imprisonment for a period of two years for the offence u/s.304A of IPC, rigorous imprisonment for six months for the offence u/s.337 of IPC and further sentenced to undergo rigorous imprisonment for 217 a period of two years for the offence under Section 427 of IPC.
241. Insofar as the conviction u/s.5 of the Explosive Substances Act is concerned, the sentence as imposed by the trial Court sentencing him to undergo R.I. for a period of 10 years is affirmed.
242. In respect of the conviction u/s.9(1)(b) r/w.Rule 5 of the Explosives Act and Rules sentence of two years R.I. as imposed by the trial Court is affirmed.
243. We direct the sentences imposed on A1 under the above statutory provisions to run concurrently.
244. In respect of the sentences of imprisonment imposed on A1 is concerned, he is entitled for the set off in terms of Section 428 Cr.PC. for the period of detention which he has already undergone.
218
245. For the purpose of claiming set off for the period of detention, Mr.Pasha has submitted that A1 had been arrested by PW59 and had obtained an order of detention from the Jurisdictional Magistrate till 21.7.2000 which subsequently came to be extended as and when it expired.
246. This step has been taken by PW59 as A1 was seriously injured in the blast and was not in a position to be produced before the Magistrate. Therefore, he submits that he has already served the sentence as his period of detention is much longer than the sentence imposed on him which is 10 years. It is therefore, requested that direction may be issued to the jail authorities to set him at liberty forthwith.
247. Sri.Nilogal, learned Special SPP on the other hand submits that this accused has not, as per the records, undergone detention for more than 10 years as after his detention in the present case he had been taken to Hyderabad under a body warrant for the purpose of investigation and trial of the case before the Hyderabad 219 Court and had not been brought back to the Central Jail at Bangalore under body warrant on and after 23.12.2004. Therefore, the accused cannot claim set off of the period he has spent for the purpose of investigation and trial of the accused before the Hyderabad court. In view of the language of the provisions of Section 428 which specifically indicates that the period for which set off can be claimed is only the period of detention which he has undergone during the investigation, enquiry or trial of the very case and not in respect of the period of detention, assuming that he was under detention, during the period of investigation, enquiry or trial or the cases before the Hyderabad Court.
248. While on a perusal of the provisions of Section 428, it does appear that set-off can only be claimed in respect of period during which investigation, enquiry or trial was taking place in respect of the very case for which the person is convicted and sentenced to imprisonment, but we nevertheless find that the initial detention of the accused 220 person which was on 14.7.2000 was in connection with this case and that had not come to an end or brought to an end by any positive judicial order, but he was only allowed to be taken to Hyderabad under a body warrant issued by the court at Hyderabad and even otherwise he had not been released from custody in the present case and therefore, his custody in the present case is deemed to have been continued more so when the investigation and trial before the Hyderabad court was over, he having been brought back under body warrant as on 23.11.2004 and his custody having been continued thereafter also till date. Therefore, we are of the view that the detention which A1 has undergone is taken to be from 14.7.2000 and as part of the detention undergone in connection with the present case.
249. In the result, we find the judgment and convictions rendered by the trial Court is not sustainable in terms of the above discussion. Accordingly, we proceed to pass the following:
221
ORDER Criminal Appeal No.1202/08 insofar as it relates to accused Nos.8, 9 & 17 is concerned is allowed in full. The judgment and order of conviction and sentences passed on the said appellants are all set aside. These accused/appellants are acquitted of all the offences with which they are charged and convicted by the trial Court. They are ordered to be set at liberty forthwith if not required in any other case.
Insofar as the first appellant/first accused in Criminal Appeal No.1202/08 is concerned, the appeal is allowed in part.
Insofar as the conviction and sentences passed on him u/ss.121, 120-B r/w.121A, 124A, 153A and 304 Part II of IPC and u/s.3 of the Explosive Substances Act, 1908 are concerned, they are set aside.222
In respect of his conviction u/s.304 Part II of IPC, we set aside the same. Instead, we convict him on a lesser charge for the offence punishable under Section 304A of IPC and sentence him to undergo R.I. for two years.
Insofar as the conviction for the offences u/s.337, 427 of IPC and u/s.5 of the Explosive Substances Act 1908 and u/s.9(1)(b) of the Explosives Act, 1884 r/w.Rule 5 of the Explosives Rules 1983 is concerned, it is confirmed. The sentences as imposed by the trial Court on the first accused for the said offences is also confirmed.
All the sentences passed on accused No.1 are ordered to run concurrently. He is also given the benefit of set-off for the period of detention he has undergone so far. ORDERS ON R.C.NO.5/08
The reference made by the trial Court for confirmation of death sentence imposed on A1, 8, 9 and 17 does not sustain for examination in view of our allowing the appeals and these accused persons against their conviction for the 223 offence u/s.121 of IPC and having acquitted them for the offence punishable under Section 121 of IPC for which conviction alone they were imposed the death sentence and that by setting aside of the conviction, automatically the sentence falls to ground and reference does not survive for examination and is accordingly, rejected.
Registry is directed to communicate the operative portion of this order to the jail authorities immediately for taking necessary action.
Sd/-
JUDGE Sd/-
JUDGE
AN, SA, RS, pjk,
SS, MP, KM, NG
224
DVSKJ/HSKJ: Criminal Appeal No 1202 of 2008
27-02-2013 C/w
Criminal Appeal No 39 of 2009
& Criminal RC No 5 of 2008
ORDER ON 'BEING SPOKEN TO'
These appeals and Criminal RC, which were disposed of by our judgment dated 12-12-2012, have been listed again before the court for issuing directions to prepare the operative portion of the judgment fully in consonance with the operative portion of the judgment which was dictated on the same day and which was also directed to be communicated to the jail authorities for implementation.
We have subsequently noticed that the last paragraph of the operative portion ordered to be communicated to the jail authorities, reading as under:
Crl.A.39/09 preferred by Accused Nos.5, 6, 10, 13, 14, 16 and 18 is allowed. The judgment and order of conviction and sentences passed on the said accused/appellants is set aside. They are acquitted of all the charges leveled against them. They are in custody. They are ordered to 225 be set at liberty forthwith if not required in any other case.
is not incorporated into the main judgment, though it is to be part of the judgment and operative portion had already been signed by us and also communicated through the registry to the jail authorities immediately. We find that the discussion relating to this aspect though figures at paragraphs 224 and 226 of the judgment, this part of the judgment which is in the operative portion relating to the result of Criminal Appeal No 39 of 2009 has not been found part of the main judgment, which makes the judgment incomplete and it is for issue of direction to include this portion as part of the judgment, the matter is listed today.
Sri Hashmath Pasha, learned counsel for the appellants-accused also submits that it is so and, as noticed above, discussion with regard to appellants in Crl Appeal No 39 of 2009 is found in paragraphs 224 and 226 of the judgment, but the omission is a mistake and for making the judgment complete, adding this part in the operative portion 226 of the main judgment is a proper course of action. It is also submitted by Sri Pasha that this omission is in the nature of a typographical mistake and by correction to the judgment what had been ignored or omitted is being included.
Sri H N Nilogal, learned special public prosecutor appearing for the respondent-state also submits to the same effect. He submits that it is necessary to issue such a direction for incorporating the said portion as part of the main judgment.
In the light of the above discussion and reasoning and in view of the submissions made by the learned counsel, we direct the registry to incorporate the following portion in the operative portion of the judgment:
Crl.A.39/09 preferred by Accused Nos.5, 6, 10, 13, 14, 16 and 18 is allowed. The judgment and order of conviction and sentences passed on the said accused/appellants is set aside. They are acquitted of all the charges leveled against them. They are in custody. They are ordered to be set at liberty forthwith if not required in any other case.227
and issue certified copy of the judgment, free of cost, to the parties who have already obtained certified copy of the judgment and also to the learned special public prosecutor.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE *pjk