Lal
Singh Vs. State of Gujarat & Anr [2001] Insc 9 (9 January 2001)
M.B.Shah,
S.N.Phukan Shah, J.
L.J
After
trial in TADA Case Nos.2/93, 7/93 and 2/94, by judgment and order dated 8th
January, 1997, the Designated Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad,
acquitted 16 accused and convicted 5 accused, appellants herein, namely, A1 Lal
Singh, A2 Mohd. Sharief, A3 Tahir Jamal, A4 Mohd. Saquib Nachan and A20 Shoaib
Mukhtiar. The appellants were convicted for the offences punishable
(1) under
Section 3 (3) of Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as TADA Act) and sentenced to suffer life imprisonment
and to pay a fine of Rs.10,000/- each and in default to suffer R.I. for 6
months;
(2)
under Section 120B (1) of IPC and sentenced to suffer R.I for 10 years and to
pay a fine of Rs.5000/- each, in default to suffer R.I. for 3 months. They were
further convicted for the offence punishable under Section 3(3) of TADA Act
read with Sec. 120B IPC but no separate sentence was awarded. Accused No.1 was
additionally convicted for the offences punishable
(1) under
Section 5 of TADA Act and sentenced to suffer life imprisonment and to pay a
fine of Rs.10,000/-, and in default to suffer R.I. for 6 months; and
(2) under
Section 5 of the Explosive Substances Act, to pay a fine of Rs. 5000/- in
default to undergo R.I. for 3 months;
(3) under
Section 25(1A) of the Arms Act and sentenced to suffer R.I. for 7 years and to
pay a fine of Rs.5,000/- and in default to suffer R.I. for 3 months. No
separate sentence for A-1 under Section 3(3) of TADA Act, Section 5 of
Explosive Substances Act read with Section 120B IPC was passed. All sentences
were directed to run concurrently.
Against
the said judgment and order, A1 Lal Singh has filed Criminal Appeal
No.219/1997, A2 Mohd. Sharief has filed Criminal Appeal No.1409- 1411/1997, A3
Tahir Jamal has filed Criminal Appeal No.407-409/1997, A4 Mohd. Saquib Nachan
has filed Criminal No.244/1997 and A20 Shoaib Mukhtiar has filed Criminal
Appeal No.294/1997.
In
all, twenty one accused were tried jointly before the trial court on the charge
that they alongwith 13 named absconding accused and some unknown Sikh militants
hatched criminal conspiracy in India and abroad for subversive and terrorist
activities in India and for facilitating creation of Khalistan and liberation
of Jammu and Kashmir by violent means during the period between September, 1988
to July, 1992; accused no.1 Lal Singh visited Pakistan on fake Pakistani
passport and contacted Inter Service Intelligence (ISI) officials of Pakistan
for smuggling of arms, ammunitions and explosives and money for terrorist
activities into India; accused No.2 is Pakistani national and ISI agent; accused
nos.1 and 2 alongwith Sajjad Alam Raja (absconder) unlawfully indulged in
subversive activities, created an organization at Lahore (Pakistan) for
liberation of Kashmir and its merger with Pakistan, creation of Khalistan in
India by striking terror in people or section of people or to adversely affect
the harmony amongst different sections of people, creating hideouts at various
places in India with the help of A4 and A20; accused No.2 along with accused
No.1 and some unknown Pakistani smugglers facilitated the smuggling of several
consignments of arms, ammunitions and explosives into India from Pakistan by
illegal means during 1991; A1, A2 and A20 along with some absconders conspired
to strike terror by violent means to eliminate BJP/Hindu leaders/police
officers and for that purpose procured fire-arms, ammunitions and explosives;
accused
no.3, 4 and 20 with the help of other accused created hideouts for accused no.1
for intensifying terrorist activities and for arranging transportation; accused
no.1 alongwith accused Devendrapal Singh alias Deepak (absconder) while staying
at Ahmedabad was in constant touch with accused Gurjit Singh Dhaliwal alias Pal
alias Sharma (absconder) in USA. He coordinated the terrorist activities in
India on telephone and that at the behest of accused persons huge quantity of
arms, ammunitions, explosives and other articles were recovered and found to be
in working order, which were of foreign make and sufficient to cause
explosions.
According
to prosecution, in the year 1984 the terrorism had gone beyond limits and
therefore, blue star operation was performed. Just to oppose the action of blue
star operation, the dissatisfied and angry Sikh youths started creating
disharmony amongst two major groups of Hindus and non-Hindus. I.S.I. of Pakistan started instigating Indian Muslim
and Sikh youths for this purpose.
ISI
contacted certain youngsters in India, who were the members of one organization
named SIMIan institution for the purpose of cultural and religious activities
amongst Muslim youngsters and to follow the principles of Holy Kuran and to
live the life guided by Holy Kuran. For this purpose, ISI took help of Mr. CMA
Bashir (absconding) of Kerala having close connection with SIMI. As the area of
Punjab and J&K was not safe for the
above activities, they chose certain borders of Gujarat and Rajasthan. Accused no.2a Pakistani National and ISI
agententered into India for getting information regarding
defence base of India situated at Ambala, Punjab, J&K and for collecting other
inside information in connection with defence personnel and army position in India. For this purpose he contacted
accused nos.1, 3 and 4. Accused no.1 and 2 were active in furtherance of their
conspiracy. They entered into India, lodged
at different places in order to achieve the goal.
Both
of them created contacts in India with
accused no.20 at Aligarh and accused nos.3 and 4 at Bombay. Accused no.1 and 2 visited various
places of India including Ahmedabad and Bombay in their fake names. The modus
operandi of these two accused persons was to have their activities under false
identity. In December, 1991 both the accused reached at Aligarh where they started their
activities. Their targets were to create hideouts, to have their own agents, to
have their contacts with agents in Pakistan, UK, Canada etc. and to have hideouts
elsewhere. It is stated that A1 and A4 visited Madras to survey the stock exchange building to find out the
possibility of bomb blast there. It is further stated that accused persons were
using various types of vehicles according to their requirement and convenience.
Out of
those vehicles, one jeep and scooter were recovered from Ahmedabad and one
gypsy was recovered from Bombay.
During
interrogation of accused No.1, two hideouts of accused persons at Ahmedabad
came to be known and raid of these hideouts resulted into recovery of arms and
ammunitions. At both the hideouts, they were living under different identities.
It is further stated that A1 to A4 and A20, in their respective confessional
statements, corroborate with each other on various points and items of
conspiracy. The statements lend support to prove the conspiracy. The evidence
against A3, A4 and A20 shows that they were helping and abetting A1 and A2 in
common design.
It is
further case of the prosecution that accused No.1 Lal Singh was arrested in the
morning of 16.7.92 at Dadar Railway Station while he was alighting from a
train.
His
arrest was shown in RC5/92 in which final report was submitted as no case is
made out. For the present case, it is the prosecution story that Mr. Hiralal,
the Commissioner of Police, Baroda (Gujarat) got information that one terrorist
Inder Pal Singh alias Lal Singh along with other associates was arrested by
Bombay Police and the arrested terrorist Lal Singh confessed regarding
conspiracy hatched for kidnapping of grand-daughter of V.V.I.P. from Pune and
that main leaders were operating from Baroda and other cities of Gujarat. The
Commissioner of Police entrusted the work of verifying the said information to
Mr. Anopkumar Singh, DCP (PW10). It was decided to send ASI I.C. Raj, PW9 of
Chhani Police Station, Baroda working under Mr. Anopkumar Singh, to Bombay for
interrogating Inderpal Singh and his associates. After contacting the Police
Commissioner, City of Bombay, on 23rd, 24th and 25th July, 1992
ASI Mr. Raj interrogated accused Lal Singh. He was sending information every
day with regard to the interrogation to DCP Mr. Anopkumar Singh. On 24th July, 1992 on the basis of interrogation,
information was conveyed at Baroda with
regard to large scale arms and ammunitions stored at certain premises at
Ahmedabad. On receipt of the said information, Mr. Anopkumar Singh rushed to
the Commissioner of Police, Baroda.
Further, the D.G. Police of Gujarat State was informed immediately on
telephone about the said information. The C.P. Baroda also talked about the
information with Mr. Surolia, DCP Ahmedabad (PW103).
The
information was received at night time on 24th July, 1992 and PW7 ASI T.A. Barot located the
two premises, namely, Flat No. C-33, Paresh Apartments situated at Narayanagar Road, Paldi and House No.4-A, Usman
Harun Society, Juhapura at Ahmedabad and raids were carried out on 25th July in
the morning. During raids, large quantity of arms, ammunitions and explosives
were recovered from the said premises. The Ahmedabad police was investigating
the crime but considering its seriousness, on 31st July, 1992, the State Government gave consent for investigation by the
CBI. On 4th August,
1992, Central
Government notified that investigation be carried out by the CBI. The CBI
registered the case as RC-6/92, carried out the investigation and also recorded
confessional statements of the accused. Finally, after completing the
investigation accused were charge-sheeted and tried by the Designated Judge at
Ahmedabad.
To
prove the charges, the prosecution examined 136 witnesses during the trial and
relied upon various documents including confessional statements recorded during
investigation.
All
the accused persons abjured their guilt, pleaded innocence and stated that they
have been falsely implicated in this case. Accused no.1 Lal Singh has stated
that he left India in the year 1991 and returned to India in the year 1992 and when he was at
Bombay, he was arrested at Dadar Railway
Station. He has denied all the allegations levelled by the prosecution and
stated that during his arrest his signatures on blank papers were obtained
forcefully and that he never gave any confessional statement. During police
lock up, he was tortured, his tongue was cut and was injured on the head. The
Doctor was required to take 12 sutures on his head injury. It is his say that
when he was arrested at Dadar Railway Station at the ticket counter, he was
having 350 American dollars and 15 to 16 thousand Indian currency notes. He has
disputed the date and time of his arrest.
Accused
no.2 Mohd. Sharief admitted that he is a Pakistani National and is Ahmadi
Muslim. He has also denied all allegations levelled by the prosecution and
stated that during his arrest his signatures on blank papers were obtained
forcefully and that he never gave any confessional statement. He has stated
that the Pakistan Govt. declared Ahmadi Muslim Community as non-Muslim
Community. His father died because of torture exercised by extremist Muslims of
Pakistan. He has further stated that Indian Government had sponsored one
conference of Ahmadi Muslims at Gurudaspur, Punjab. He wanted to settle at Germany and, therefore, he contacted one Ch. Avtar Ahmad in India for making arrangement for going to
Germany. When he was at Delhi Airport and was preparing to leave for Germany via Moscow, he was stopped and later on arrested. From August 1992
till July 1993, he was confined at Lal Quila, Delhi. He was tortured and his signatures were taken on blank
papers.
Because
of threats given by the C.B.I. Officers, he had not disclosed the story of
torture when he was produced before the Court. He refused to identify other
accused. He also denied to have visited India except in August 1992.
Accused
No.3, Tahir Jamal also refused of having any relation with any of the accused.
He stated that during the period of remand, no specimen writings were taken
from him.
Accused
No.4, Saquib Nachan has stated that he was arrested from his village. He has
also denied all allegations levelled by the prosecution and stated that during
his arrest his signatures on blank papers were obtained under pressure and
torture. Accused No.20, Shoaib Mukhtiar has stated that he was arrested from Aligarh. C.B.I. officers took his
signatures on blank papers after torture and beating him severely. With regard
to the evidence of Azim Varasi, PW87, he has stated that witness was his friend
but afterwards their relations became enemical. This happened because he was
not ready to marry with the sister of Azim Varasi and further there was some
quarrel between them on account of money.
It is
not necessary to narrate the defence of rest of the accused who are acquitted.
After
appreciating the entire evidence at great length, the learned Designated Judge
convicted the aforesaid five accused and gave benefit of doubt to remaining
sixteen accused. The Court arrived at the conclusion that the prosecution has
proved that: 1. the muddamal arms, ammunitions and explosives produced before
the court were recovered on 24.7.92 from C-33, Paresh Apartments and 4-A, Usman
Harun Society and the same were recovered on the basis of the information given
by the accused no.1 during his interrogation;
2. the
link between accused no.1 and absconding accused Manish Agrawal with the
premises C-33, Paresh Apartments and/or 4-A of Usman Harun Society and the
above two premises or any of the two was used as hideout by accused no.1,
absconding accused Manish Agrawal alias Dipak or any of the accused named in
the charge-sheet;
3. in
pursuance of criminal conspiracy, absconding accused Devendrapal Singh alias
Manish Agrawal alias Dipak reached to Ahmedabad in April, 1992 with
Rs.2,00,000/- to 3,00,000/- and stayed with accused no.1 in a hired flat
no.C-33, Paresh Apartments and in a purchased bungalow no.4-A, Usman Harun
Society;
4. for
the convenience of the conspirators and for transporting the firearms,
ammunitions and explosives, accused no.1, absconding accused Devendrapalsingh
alias Manish Agrawal alias Dipak and Dahyasingh Lahoria alias Vijay Pahelvan
purchased a Maruti Gypsy No.MH-01-8942 of blue or sky blue colour and a
Mahindra Jeep No.MH-04-A2114 from Bombay and these vehicles one after another
were put to the disposal of accused no.1 at Ahmedabad;
5. the
scooter bearing no.GJ.1.P.9485 was purchased in the name of Ashok Kumar Khanna
(accused no.1) from Arvish Auto of Ahmedabad and the same was found on 24.7.92
in the compound of B.No.4-A, Usman Harun Society;
6.
accused nos.1 and 2 had entered into India from Pakistan through entry point Bombay Airport
in the name of Chaudhari Mohmad Iqbal and Manzoor Ahmad respectively as
Pakistani Nationals on 11/12.12.91;
7. their
visits at various places in furtherance of criminal conspiracy hatched by A1 to
A4 and A20:
(i) the
visit of accused nos.1 and 2 at Aligarh and their stay at Aligarh in the
month of December, 1991 or round about;
(ii) the
visit of accused nos.1 and 20 at Bombay as alleged;
(iii)
the visit of accused nos.1 and 4 at Ahmedabad and their stay in hotel Sidhdhartha
Palace and the stay of accused no.1 in hotel Royal and/or hotel Butterfly at
Ahmedabad;
(iv)
the visit of accused no.1 and absconding accused Mushahid under assumed names
of K. Kumar and M. Husain respectively to Bombay on 30.6.92 and their contacts
with accused no.4 to plan out about the bomb blast in Stock Exchange Building
at Madras;
(v) the
visit of accused no.1 and absconding accused Mushahid Husain to Hotel Balvas
International in the names of Murtuzakhan and Anwar;
(vi)
the visit of accused nos.1,4 and absconding accused C.A.M. Bashir to Madras on
2.7.92 as alleged and the stay of accused nos.1 and 4 in hotel New Woodland,
Madras;
(vii)
the visit of accused nos.1,4 and absconding accused C.A.M. Bashir of Stock
Exchange Building, Madras on 3.7.92 and the return journey to Bombay on 4.7.92;
and
(viii)
the visit of accused nos.3,4 and absconding accused Mushahid Husain to Pakistan in the year 1991.
8. accused
no.1 had brought 3000 US dollars and Rs.20,000/- in Indian currency and accused
no.2 brought 3000 US dollars and Rs.30,000/- in Indian Currency when they
entered into India in December, 1991 and ultimately
reached to Aligarh;
9. accused
no.2 came to India sometimes during March, 1991 to
establish contacts with Kashmiri or Sikh Militants for terrorist activities. He
again came to India sometimes during October, 1991 to
set up hideouts and contacted accused no.1 on phone at Lahore (Pakistan) and after creating base and hideouts, he left for Pakistan;
10.
accused no.3, 4 and absconding accused CAM Bashir contacted absconding accused
Amir-ul-Azim at Bombay to create hideouts for accused no.1 at Ahmedabad for
storing the firearms, ammunitions, explosives etc. and accused no.3 collected
1700 American dollars and subsequently received Rs.7,00,000/- in Indian
Currency from him for intensifying the terrorist activities and further that
out of this amount the sum of Rs.90,000/- and 1700 pounds were recovered;
11.
during February, 1992, absconding accused Devendrapal Singh and Majindar Singh
visited Aligarh and accused no.1 informed them that huge consignment of fire
arms was being sent for Punjab and arrangement should be made for a motor truck
to transport the consignment of weapons from Indo-Pak border and for the
purpose accused no.1 gave Rs.10,000/- to accused no.20 for arranging the truck;
12. in
the month of February accused nos.1 and 2 came into telephonic contact with
absconding accused Daljitsingh Bittoo from Pakistan, who passed on the
information for creating hideouts in Ahmedabad for storing, firearms,
ammunitions and explosives sent from across the border;
13.
during the visit of accused nos.1 and 20 to Bombay they contacted accused no.3
who was already informed about the visit by accused no.1 on telephone and was
instructed by absconding accused Amir-ul-Azim;
14.
accused no.3 introduced accused no.4 to accused no.1 and they all planned for
creating hideouts at Ahmedabad and for this absconding accused Mushahid Husain
was contacted;
15. accused
nos.1 and 4 visited Ahmedabad on 29.2.1992 in the assumed names as Iqbal and
Mohmad S. respectively and met absconding accused Mushahid Husain.
Mushahid
Husain made arrangement for hiring the House No.82 of Mubarak Society and
accused no.1 shifted to Ahmedabad for illegal activities in furtherance of the conspiracy
in the first week of March, 1992;
16. on
16.7.92, accused no.1 was apprehended by Bombay police at Dadar Railway Station
and at that time during his personal search, 200 US dollars and Rs.30,664/- in
Indian currency, one visiting card of hotel Samrat containing various telephone
numbers and a driving licence in the assumed name as Kishor Kumar alongwith
other articles were recovered;
SUBMISSIONS:
At the
time of hearing of these appeals, Mr. Sushil Kumar, learned Senior Counsel
appearing on behalf of accused no.1 and 4 has taken us through the material
part of the evidence and has contended that the Trial Court ought not to have
relied upon the confessional statements of the accused as the same are neither
voluntary nor truthful. For contending that confessional statements are not
voluntary, he submitted that all throughout accused were kept in police lock-up
and during that time their so-called confessional statements were recorded by
the Investigating Officers;
before
recording the confessional statements, the accused were not informed that after
making the statements, they would be produced before the Judicial Magistrate
and would be sent in judicial custody. It is pointed out that accused No.4 was
arrested on 10.10.1992 and thereafter he was kept in police custody and on 7th November, 1992 his confessional statement was
recorded. After recording the said statement, he was again sent to police
custody till 12th
November, 1992. This
would apparently indicate that the statements were recorded under coercion and
police torture. Further, even after recording the so-called confessional
statements, accused were kept in police lock-up and produced before the
judicial magistrate after long lapse of time. He further pointed out other
circumstances for contending that the confessional statements of accused Nos. 1
and 4 are not truthful and in support of his contention, he has pointed out
certain contradictions in the evidence of these witnesses. He submitted that
the accused were in police custody for a long period and after getting some
evidence, the Investigating Officers have recorded the confessional statements
of the accused. If the accused were prepared to make voluntary confessional
statements, there was no necessity of calling Mr. Sharad Kumar, S.P. (PW 133)
from Delhi for recording their statements at
Ahmedabad because in the metropolitan city of Ahmedabad, number of other S.Ps and/or Magistrates were available. He
further submitted that P.W. 133 Sharad Kumar has failed to verify any marks of
injury on the person of accused No. 4 before recording the statement. Hence, he
submitted that it cannot be stated that the said statements are voluntary and
truthful. In support of his contention, he referred to the decision of this
Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] wherein the Court
has laid down certain guidelines, which are required to be followed so that
confessional statement obtained in the pre-indictment interrogation by a police
officer not lower in rank than a Superintendent of Police is not tainted with
any vice but is in strict conformity with the well-recognized and accepted
aesthetic principles and fundamental fairness. The learned counsel has pointed
out that despite the aforesaid suggestion, the guidelines are not incorporated
in the Act or the Rules.
Mrs.
K. Sarada Devi, learned counsel appearing on behalf of Supreme Court Legal
Services Committee representing accused no.2, Mohd. Sharief, assailed the
version of the prosecution and submitted that accused no.2 wanted to leave Pakistan
and settle in Germany and, therefore, he contacted a travel agent Chaudhary
Altaf Ahmed and sought his help; in July, 1992, Altaf Ahmed took him and
another person to India by train via Attari border and further arranged their
stay at Delhi; the said agent arranged his visa and air tickets from Delhi and
in August, 1992 when the agent took him to the International Airport (Delhi) to
board a flight for Germany via Moscow, he was stopped and later on arrested;
that he has no connection with recovery of arms etc. and that there is no
evidence to show an agreement between him and other accused to commit an
offence. The learned counsel has further argued that the confessional statement
of accused no.2 was taken under coercion and to prove this fact, she referred
to two paragraphs of statement of accused no.2 recorded under Section 313
Cr.P.C. wherein accused no.2 has stated that CBI officials took him to
Ahmedabad for producing before a Magistrate; he was not put any question by
Magistrate; he was threatened not to make any complaint; he could not arrange
any lawyer as he is a resident of Pakistan; during his custody he was forced to
plead guilty but as he did not make any confessional statement, he was mentally
and physically tortured; and that against this torture, he went on hunger
strike in May, 1994 for sixty days and thereafter on considering his
deteriorating health condition, he was shifted to jail hospital. The learned
counsel further pointed out certain contradictions in the evidence of prosecution
witnesses and sought acquittal of accused no.2.
Mr.
R.B. Mehrotra, learned senior counsel appearing on behalf of accused no.3
argued that confessional statement of accused is not voluntary and not in
conformity with prosecution case. Therefore, it was not admissible. As such it
belies the prosecution case. If it is held to be admissible, its reliability
may be tested with great caution. He argued that as per the prosecution story,
the role of accused no.3 is very limited. He is charged for creating hideouts
for accused no.1 at Ahmedabad for storing fire arms, ammunitions and explosives
etc. with the help of accused no.4, Saquib Nachan, C.M. Bashir (absconding) and
by contacting Amir-ul-Azim (absconding) at Bombay. The learned counsel argued
that accused no.3 never visited any place in India other than Bombay and his
native place in district Azimgarh (UP); he has no link with accused no.2; and
that he is not concerned with the arms and ammunitions stored at Ahmedabad or
related to the bomb-blast plan of Madras Stock Exchange. Accused no.3 never
purchased air tickets for accused nos.1 and 4 for Ahmedabad on 29.2.1992 from
Bombay. Further, so far as the question of telephone number mentioned at two
flight coupons is concerned, the learned counsel contended that the maternal
uncle of accused no.3 is an Islam Scholar, a social worker and an office bearer
of many welfare Associations, therefore, there is strong possibility that some
one who had purchased the air ticket might be knowing his maternal uncle and
had given his telephone number. He further pointed out certain contradictions
in the statement of PW87 Sayeed Mohd. Azim Varasi, who is the key witness
against accused no.3 to prove his visit to Bombay. The learned counsel next
contended that so far as the receipt of amount by accused no.3 through Hawala
and accused Amir-ul-Azim is concerned, there is no independent witness to prove
the facts that it was received for the purpose of terrorists activities.
Moreover, even if this money is attributed to have been found with accused
no.3, it has no connection with the conspiracy of exploding bomb or fire-arms
etc. for which the accused has been charged under Section 3(3) of TADA Act.
Lastly, the learned counsel argued that the trial court has given its findings
mostly on the basis of conjectures and surmises; the judgment does not deal
with the defence witnesses and is full of discrepancies and factual errors; the
facts on the basis of which the conclusions have been reached and inferences
have been drawn by the trial court actually do not exist anywhere, neither in
the deposition nor in the oral or documentary evidence and not even in the
confessional statements; the say of CBI officers has been taken as gospel truth
and accused no.3 has been convicted for criminal conspiracy on the basis of
philosophical reasons; and, therefore, accused no.3 may be acquitted.
Mr.
K.T.S. Tulsi, learned senior counsel appearing on behalf of accused no.20
contended that the confession of accused was procured after he was stripped
naked and severely tortured for four days and the alleged confession has
serious discrepancies, which have been filled up subsequently. In the
confessional statement, Aligarh has been replaced for Srinagar and that the certificate has been
corrected by white ink where the name of accused no.20 Shoaib Mukhtiar has been
substituted for accused no.2 Mohd. Sharief. The very fact that the name has
been changed twice in the statement creates a serious suspicion that the
recording of the confession may have been a mere paper transaction. Even the
existence of gaps and blanks and change of the name of the city in the
statement creates a doubt about the authenticity of the alleged confession.
Further,
there is no oral or documentary evidence on record to show that accused no.20
in any manner aided or abetted the commission of any terrorist act. The case of
the accused no.20 is completely at par with that of the other accused who have
been acquitted and there is no point of distinction on the basis of which the
Designated Court could come to a contrary conclusion. On perusal of the entire
evidence and in particular the statements of PW43 Major Singh and PW87 Azim
Varasi, it becomes self-evident that A20 was not even aware of the conspiracy
of accused no.1 or others to commit any terrorist act. PW43 has only stated
that he had seen A20 in the company of A1. He nowhere stated that in his
presence any plan for commission of a terrorist offence or any other offence
was discussed. The learned counsel further argued that the confession of
co-accused cannot be used against the appellant, particularly in the absence of
any other evidence, oral or documentary. The confession is thus incapable of
connecting the accused with the alleged offences. He contended that the courts
do not begin appreciation of evidence from the confession of a co-accused but
consider the weight of substantive evidence and if possible, seek corroboration
of the same from such confession. He further contended that the Trial Court on
the basis of confessional statement held [in Para 159] that accused no.20 had
also undertaken once to arrange for transportation of firearms but ultimately
he could not succeed and there is not a whisper about the same by any of the
witnesses. Thus, if this fact is excluded from consideration, the statements of
PW43 and PW87 do not take the prosecution any further with regard to the
knowledge of terrorist activity of A1 or any of the other accused. Lastly, the
learned counsel contended that the Trial Court has misread the evidence of PW43
and PW87 in coming to the conclusion that the A20 was a conspirator with A1,
A2, A3 or A4 and, therefore, A20 requires acquittal in the instant case.
Lastly,
it was common contention of learned counsel for the appellants that unless
there is conviction of any one accused under Section 3(2), appellants could not
be convicted under Section 3(3) of the TADA Act. Mr. P.P. Malhotra, learned
senior counsel appearing on behalf of State (CBI) controverted arguments
advanced by the learned counsel for the accused/appellants and contended that
the totality of the evidence read with the confessional statements of the
accused establishes that they were conspirators; the judgment of the trial
court is well reasoned and, therefore, the appeals of the accused require
dismissal.
On the
basis of the submissions made by the learned counsel for the parties, the
contentions raised by them can be divided as under: - 1. Whether before
convicting accused under Section 3(3) there should be conviction of someone
under Section 3(2) of TADA Act?
2.
Whether confessional statements would be inadmissible in the evidence on the
ground that
(a) they
were recorded by the investigating officers or the officers supervising the
investigation;
(b) the
accused were not produced before the Judicial Magistrate immediately after
recording the confessional statements; and
(c) the
guidelines laid down in the case of Kartar Singh are not followed?
3.
Whether there is any other evidence led by the prosecution to connect the
accused with the crime or corroborating confessional statements? (1) Whether
before convicting accused under Section 3(3) there should be conviction of
someone under Section 3(2) of TADA Act? The learned counsel for the appellants
submitted that the conviction of the accused under Section 3(3) of the TADA Act
is illegal as none of the accused is convicted under Section 3(2) of TADA Act.
In substance it is contended that section 3(3) does not contemplate an act
which is independently an offence, but it depends upon commission of a terrorist
act as contemplated under section 3(1). In our view, this submission is without
any substance if we refer to the language used in Sections 3(1) and 3(3) of the
Act.
3.
Punishment for terrorist acts.
(1)
Whoever with intent to overawe the Government as by law established or to
strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite or other explosive
substances or inflammable substances or fire-arms or other lethal weapons or
poisons or noxious gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as to cause, or
as is likely to cause, death of, or injuries to, any person or persons or loss
of, or damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community, or detains any person and
threatens to kill or injure such person in order to compel the Government or
any other person to do or abstain from doing any act, commits a terrorist act.
(2)
Whoever commits a terrorist act, shall,--
(i) if
such act has resulted in the death of any person, be punishable with death or imprisonment
for life and shall also be liable to fine;
(ii)
if any other case, be punishable with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for life and shall
also be liable to fine.
(3)
Whoever conspires or attempts to commit, or advocates, abets, advises or
incites or knowingly facilitates the commission of, a terrorist act or any act
preparatory to a terrorist act, shall be punishable with imprisonment for a
term which shall not be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.
(4)
Whoever harbours or conceals, or attempts to harbour or conceal any terrorist
act shall be punishable with imprisonment for a term which shall not be less
than five years, but which may extend to imprisonment for life and shall also
be liable to fine.
(5)
Any person who is a member of a terrorists gang or a terrorists organisation,
which is involved in terrorist acts, shall be punishable with imprisonment for
a term which shall not be less than five years, but which may extend to
imprisonment for life and shall also be liable to fine.
(6)
Whoever holds any property derived or obtained from commission of any terrorist
act or has been acquired through terrorist funds shall be punishable with
imprisonment for a term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to fine.
The
aforesaid section provides for various acts which would be considered as
terrorist acts and punishment thereof. It also provides for punishment of acts
which are not terrorist acts. Section 3(1) enumerates various activities which
are considered to be terrorist acts and sub-section (2) provides for punishment
of such acts.
Sub-section
(3) contemplates acts which are not terrorist acts by themselves, but
activities prior or subsequent to the terrorist act. Under this section, a
person can be convicted if it is proved that he
(a) conspired,
(b) advocated,
(c) abetted,
(d) advised,
(e) incited,
or
(f) knowingly
facilitatedthe commission of a terrorist act or any act preparatory to a
terrorist act. Any of these acts by itself constitutes an offence. Therefore,
for conviction under sub-section (3), it is not necessary that there should be
a conviction under sub-section (2) for a terrorist act.
The
aforesaid activities are not only abetment of terrorist act, but include other
acts which are not covered by the concept of abetment as provided under Indian
Penal Code, namely, advocates, advises and any act preparatory to a terrorist
act. Further, under TADA Act Section 2(1)(a) defines the word abet in the wider
sense as under 2.
Definitions(1)
In this Act, unless the context otherwise requires—
(a) abet,
with its grammatical variations and cognate expressions, includes
(i) the
communication or association with any person or class of persons who is engaged
in assisting in any manner terrorists or disruptionists;
(ii)
the passing on, or publication of, without any lawful authority, any
information likely to assist the terrorists or disruptionists and the passing
on, or publication of, or distribution of any document or matter obtained from
terrorists or disruptionists;
(iii) the
rendering of any assistance, whether financial or otherwise, to terrorists or
disruptionists.
This
concept of making such activities as offence is not new to the criminal
jurisprudence. Chapter V of the Indian Penal Code provides for abetment and
punishment for the same. Section 115 deals with punishment in case where
abetted offence is not committed. It inter alia provides that whoever abets the
offence punishable with death or imprisonment for life shall, if that offence
is not committed in consequence of the abetment, be punished as provided
thereunder. Similarly, section 116 provides for punishment in case where
abetted offence punishable with imprisonment is not committed. Section 118 also
contemplates punishment in case where offence is not committed. It inter alia
provides for punishing a person who conceals design to commit an offence
punishable with death or imprisonment for life inter alia by any act or illegal
omission. Similar provisions are there under Sections 119 and 120. Hence, in
our view, for convicting the accused under Section 3(3), it is not necessary
that someone should be convicted under Section 3(2) for commission of a
terrorist act. Therefore, the contention of the learned counsel for the accused
that except accused no.1-Lal Singh, no other accused can be convicted under
Section 3(3) is without any substance.
(2)
Admissibility of Confessional Statements:
Next
question would bewhether confessional statements are inadmissible in evidence
because
(a) the
statements were recorded by the investigating officers or the officers
supervising the investigation;
(b) the
accused were not produced before the Judicial Magistrate immediately after
recording the confessional statements; and
(c) the
guidelines laid down in the case of Kartar Singh are not followed.
For
deciding this contention, we have to refer to Section 15 of the TADA Act and
flush out from our mind the concept evolved because of provisions of Evidence
Act. The confessional statement recorded by the Investigating Officer is not
admissible in evidence because of specific bar under Sections 25 and 26 of the
Evidence Act. When that bar is lifted by the Legislature, it would be difficult
to hold that such confessional statement is inadmissible. For this, we would
first refer to some part of the judgment in the case of Kartar Singh (Supra)
where this Court held that if the exigencies of certain situation warrant such a
legislation then it is constitutionally permissible. The Court observed [in
paragraphs 253,254 and 255] that in some advanced countries like United
Kingdom, United States of America, Australia and Canada etc. confession of an
accused before police is admissible and having regard to the legal competence
of the legislature to make the law prescribing a different mode of proof, the
meaningful purpose and object of the legislation, the gravity of terrorism
unleashed by the terrorists and disruptionists endangering not only the
sovereignty and integrity of the country but also the normal life of the
citizens, and the reluctance of even the victims as well as the public in
coming forward, at the risk of their life, to give evidence, the impugned
section cannot be said to be suffering from any vice of unconstitutionality.
The
Court further observed that if there is no breach of procedure and the accepted
norms of recording the confession which should reflect only the true and
voluntary statement, then there should be no room for hyper criticism that the
authority has obtained an invented confession as a source of proof irrespective
of the truth and creditability. The Court also observeda confession made by a
person before a police officer can be made admissible in the trial of such
person not only as against the person but also against the co-accused, abettor
or conspirator provided that the co-accused, abettor or conspirator is charged
and tried in the same case together with the accused, namely, the maker of the
confession. The present position is in conformity with Section 30 of the
Evidence Act.
The
Court finally held that it is entirely for the Court trying the offence to
decide the question of admissibility and reliability of confession in its
judicial wisdom strictly adhering to the law, it must, while so deciding the
question, should satisfy itself that there was no trap, no track and no
importune seeking of evidence during the custodial interrogation and all the
conditions required are fulfilled.
In
view of the settled legal position, it is not possible to accept the contention
of learned senior counsel Mr. Sushil Kumar that as the accused were in police
custody, the confessional statements are either inadmissible in evidence or are
not reliable. Custodial interrogation in such cases is permissible under the
law to meet grave situation arising out of terrorism unleashed by terrorist
activities by persons residing within or outside the country. The learned
counsel further submitted that in the present case the guidelines suggested by
this Court in Kartar Singh (Supra) were not followed. In our view, this
submission is without any basis because in the present case confessional
statements were recorded prior to the date of decision in the said case i.e.
before 11th March, 1994.
Further,
despite the suggestion made by this Court in Kartar Singhs case, the said
guidelines are neither incorporated in the Act or the Rules by the Parliament.
Therefore, it would be difficult to accept the contention raised by learned
counsel for the accused that as the said guidelines are not followed,
confessional statements even if admissible in evidence, should not be relied
upon for convicting the accused. Further, this Court has not held in Kartar
Singhs case (Supra) that if suggested guidelines are not followed then
confessional statement would be inadmissible in evidence. Similar contention
was negatived by this Court in S.N. Dube v. N.B. Bhoir and others [(2000) 2 SCC
254] by holding that police officer recording the confession under Section 15
is really not bound to follow any other procedure and the rules or the
guidelines framed by the Bombay High Court for recording the confession by a
Magistrate under Section 164 Cr.P.C.; said guidenlines do not by themselves
apply to recording of a confession under Section 15 of the TADA Act and it is
for the Court to appreciate the confessional statement as the substantive piece
of evidence and find out whether it is voluntary and truthful. Further, by a
majority decision in State v. Nalini and others [(1999) 5 SCC 253] the Court
negatived the contentions that confessional statement is not a substantive
piece of evidence and cannot be used against the co-accused unless it is
corroborated in material particulars by other evidence and the confession of
one accused cannot corroborate the confession of another, by holding that to
that extent the provisions of Evidence Act including Section 30 would not be
applicable. The decision in Nalinis case was considered in S.N. Dubes case
(Supra). The Court observed that Section 15 is an important departure from the
ordinary law and must receive that interpretation which would achieve the
object of that provision and not frustrate or truncate it and that the correct
legal position is that a confession recorded under Section 15 of the TADA Act
is a substantive piece of evidence and can be used against a co-accused also.
In the
present case, undisputedly when the accused were produced before the Magistrate
they did not make a complaint that the confessional statements were recorded
under coercion. Further, Rule 15 of the TADA Rules is complied with and each
accused making the confession was explained that he was not bound to make it
and in case he makes it, it could be used against him as evidence.
Further,
the officer had also verified that accused was making the confessional
statement voluntarily and certificate to that effect is also attached to the
said confessional statement. For its reliability and truthfulness, prosecution
has produced on record other corroborative evidence, which we would discuss
hereinafter.
Once
it is held that confessional statements are admissible in evidence, for
decidingto what extent such statements are reliable and truthful on the basis
of corroborative evidence, we have to refer to the same. The prosecution story
revolves around accused no.1 and 2 and all charges against remaining accused
are inter-se connected with both these accused. Therefore, we would first refer
to some parts of the confessional statements of A1-Lal Singh and A2-Mohd. Sharief.
CONFESSIONAL
STATEMENT OF A1-LAL SINGH.
The
confessional statement of Lal Singh is exhaustive and narrates the entire
history of his activities from his childhood to the date of recording the said
statement. He stated his correct and assumed names viz. Lal Singh s/o Bhag
Singh, alias Manjit Singh, Iqbal Singh, Aslam Gill, Ashok Kumar, Kishore Pilot,
Lalli, Raju, Veer Singh. He was resident of Village Nawapind and was born on
25.2.1960. He failed in his Xth Examination. In 1972, he got made his passport
there by inserting his name as Lal Singh and started planning to go abroad. He
stated that an agent named Billa, who was known to Kartar Singhs son of his
village took him to Bombay for going to Italy in the year 1978 and took
Rs.5000/- from him. Billa vanished in Bombay and thus he had to get back to his village. Thereafter, another agent
Nirmal Singh r/o village Dade P.S. Fagwara, took Rs. 10,000/- from him and he
was sent to Italy via Delhi along with other three boys. There he worked in the vessel
LEENA; he used to work as Deck Boy; he stayed in this job from September 1978
to December 1979 and used to save 400 to 500 dollars. He left this job in
December 1979 and went to Rome and started
working with Gurnam Singh and Major Singh (PW 43) in another vessel ALEXENDER.
There he worked till June 1981. On June 1981 when the vessel reached Liverpool, he left the vessel along with
Major Singh and other boys and came back to India. He stated that Major Singh was resident of Beeranwal Nawans. After
staying for one month at home, he went to Sophia, the capital of Bulgaria, along with Major Singh where they
worked as Sailors. From there they went to Torrento, Canada and worked there till June 1984.
According to him Operation Blue Star had also taken in June 1984 and for this
reason there was resentment in the Sikhs. During that time when he went to
Gurdwaras he heard many explosive speeches and that the attack on the Golden Temple was strongly resented. He had narrated his activities with
regard to the demand of Khalistan and that he joined Sikh organization giving
arms training like AK 47.
In the
present case, we are not concerned with all the facts stated in the
confessional statement and, therefore, it is not necessary to narrate the same.
It is his say that in 1988 or thereafter he sought help from one Joginder Singh
Sandhu, [World Sikh Organisation leader of Surrey and also the President of
Rock Street Gurudwara situated at Vancuoer] to go to Pakistan because
government of Pakistan was helping the Sikh students who had gone there after
crossing the border. In Pakistan, he made contacts with smugglers
whose names are mentioned. During that time, he came in contact with persons
working for ISI of Pakistan. Thereafter, he stated about forming of an
organization namely K-2 for carrying out terrorist activities. He also came in
contact with Sharief (accused no.2) who was working with the military
intelligence of Pakistan. At that time, he was informed that
Sharief was involved in terrorism in India and some of his men were caught. Subsequently, Sharief introduced him
to two persons who were smuggling weapons and explosives in India. Finally, it is his say that in
November, 1991 when Daljit Singh Bitto was present in his house, one
Amir-ul-Azim came with Tahir (accused no.3) and introduced him. Amir- ul-Azim
told him to go to India and also that Tahir was resident of
Bombay and a faithful man.
It is
his further say that in November, 1991 Sharief came back to Lahore with Javed Yousuf resident of Kashmir who was living in Aligarh and they all three decided to work
unitedly for creation of Khalistan and for independence of Kashmir. Thereafter, for him Mohd. Sharief
got a bogus passport and obtained a visa in the name of Chowdhary Mohd. Iqbal
Ahmad son of Sultan Ahmad. Both of them came to Bombay from Lahore via Karachi by Pakistan Srilanka Flight. The passport and visa of
Sharief was also bogus.
He was
having visa for Calcutta in the bogus name of Mansoor. After
reaching Bombay they stayed at the Airport and from
there they went to International Airport by Taxi and from there they went to Calcutta by morning flight.
After
reaching Calcutta they stayed in a Guest House and on
the next date i.e. on 14.12.1991 went for obtaining stay permit for three
months on Visa. From Calcutta they came to Aligarh by train. From station, they were
straightway taken by Barquat Ali Sajjad to Pees Villa building, Doodhpur, where
brother-in-law and Mama of Sajjad was staying. After 4/5 days Javed Yousuf came
there and helped him in getting a rental house, wherein he alongwith Sharief
started living.
There,
for his contacts he was using telephone number of Saukat Alis P.C.O., who was a
resident of Kashmir Karbar of Barullah market. Barqut Ali introduced him to a
boy named Shoaib (accused No.20). He further contacted Major Singh (PW 43) on
telephone who runs taxi in Delhi. In
Feb., 1992 Devendra Pal Singh alias Deepak and Manjinder Singh Issi alias
Bhushan came to meet him and told him that large number of weapons were to come
in India and so he should manage a truck. He
talked to Shoaib (accused no.20) about the truck and also gave Rs.10000/- for
repairing of the truck, which was damaged because of accident. Thereafter, he
met Amir-ul-Azim, Press Secretary of Jamait-e-Islami at Prof. Amanullahs house
at Aligarh. Amir gave the address and
telephone number of Tahir Jamal (accused no.3) of Bombay to whom he met earlier in Pakistan. At the end of February, he and
Shoaib went to Bombay and contacted Tahir. He also met
Tahirs younger brother. He asked Tahir about a house at Ahmedabad for hiding
weapons. Tahir arranged his meeting with Raveesh @ Saquib (accused no.4), who
accompanied him to Ahmedabad. At Ahmedabad, Raveesh introduced him to a man
named Musahid who was having a hardware shop. Musahid took a rented house for
him in Juhapura Mubarak Society. Daljeet Bitto told him over telephone to
manage some big vehicle for hiding large quantity of weapons. In March, 1992 he
sent Musahid to Aligarh to collect Rs.50,000/- from Deepak.
In April, 1992 Deepak came at Ahmedabad with 2/3 lakh rupees.
Thereafter,
he took the flat C-33, Shantivan Paresh Society on rent of Rs.1200/- p.m. He
also purchased Flat No.4-A in Usman Harun Society in Juhapura. In the month of
April, 1992 Bhushan went to Bombay to buy
Zipsy. He was informed by Pyara Singh and Guljar Singh, who came to Ahmedabad
from Pakistan, that one consignment of weapon was
to come.
Gulzar
Singh did not meet him but later on he came to know that Gulzar Singh in
reality is Daljeet Bitto. In May, he received two consignments of weapons i.e.
one by Daya Singh and second from the house of Karim. Since, Karim and Akbar
came to know about Gypsy number, so he sold the same and purchased a Mahindra
Jeep. Thereafter, he came in contact with Rajbir. Later on, Rajbir was
arrested. Deepak told him that Rajbir is that person who can talk to the
government for freeing Jinda by kidnapping the grand daughter of Prime
Minister. In June, 1992, he received another consignment of weapons from the
house of Karim. He bought a new Bajaj Scooter from Avish Auto. He further
purchased a gypsy, earlier owned by Dhanraj Electronics. On 30.6.1992 he along
with Musahid came to Bombay by flight and stayed at hotel
Balwas. They wanted to meet Raveesh @ Saquib. During the meeting, Raveesh
enquired for giving weapons and also for help in training his boys. On Ist
July, he alongwith Raveesh went to Madras. Both stayed at hotel Woodland in different rooms. On 4.7.1992 they
came back to Bombay by flight. Next day, he went back
to Ahmedabad. On 12.7.92 he went to Indore and from Indore to Gwalior. There, he stayed with Harjeet Singh, a friend of Major
Singh of Delhi. From Gwalior, he contacted Pal in America and Major Singh in Delhi. Thereafter, on 15.7.1992 he left Gwalior for going to Bombay by train. On 16.7.1992 when he
reached Bombay he was arrested. He further stated
that at the time of his arrest, he was having Rs.34000/-, 200 American dollars,
one bogus driving licence made from Ahmedabad and a card on which phone numbers
were written which was seized by the Police. He was also having a cynide
capsule, which was not used by him because at that time the same was in his
purse.
This
capsule was provided by I.S.I. Pakistan to meet such situation. He stated that
they receive 25/30 lakhs annually from the Sikhs of USA, Canada and England. The amount was being collected and sent to the supporters
of Khalistan and other institution. He received the amount through hawala
transaction. He also stated that for money he contacted Satinder Pal Singh Gill
in Canada, Gurmeet Singh Walia in California, America, Bhajan Singh Bhinder, California and Yadvinder Singh, Jaswant Singh, Basant Singh, Zafarwal, Jagjeet
Singh Chauhan, Ajit Singh Khera, Mahal Singh Babbars and others from U.K. He further stated that he was receiving weapons
likeAK 56 rifles, pistols, explosives, timers, time bomb, rocket, launchers,
and ammunition.
It is
true that he was all throughout under interrogation of number of officers from
various departments including C.B.I. but the story unfolded by him as to his
movements in India after December 1991 and prior to
12.12.1991 in Pakistan leaves an impression that the facts
stated by him in his statement are having element of truthfulness. Major part
of the relevant confession is corroborated by other evidence.
CONFESSIONAL
STATEMENT OF A2-Mohd. Sharief. Likewise, A2 Mohd. Sharief has also given
exhaustive confessional statement and narrated the entire history of his
activities from his childhood to the date of recording the said statement. He
admits that he is a Pakistani National and belongs to a well-to-do family. In
January, 1987 he joined as Assistant Accounts Officers (Group 16) at Dera Gazi
Khan in Water Management Wing. After few months, he was transferred to the Head
Office at Lahore. During his stay at Lahore, he came into contact with some
Kashmiri militants, who were collecting money from Muslim Welfare Organisations
and prominent businessmen etc. for funding the militants operating in Kashmir. He introduced the militants to the
businessmen of Lahore and used his political influence to
get help for the militants from the business community. He visited India on 20th January, 1991 on a valid passport and visa to visit Delhi in his genuine name alongwith Syed
Abdulla Siraji, who was infiltrated with an assumed name of Ahmed Ali. For
infiltration of Syed Siraji to India, he took
help of his friend Javed Jaida, a Customs Clearing Agent at Railway Station, Lahore. After reaching Delhi, he stayed at Qureshi Guest House
and there he came into contact with Furkan Ali @ Bubba r/o Saharanpur, who was a smuggler operating
through Atari border. After site seeing in Delhi, he returned to Pakistan by train on 2nd February, 1991. In Feb., 1991 he met Sajjad Alam
Raja, resident of PoKwho was involved in arranging finances, weapons and
support from the Pakistani authorities to the militants operating in Kashmir. He again entered into India on 12.3.1991, through Attari border
on a new passport, with a view to infiltrate four Kashmiri militants. Out of
four, only one militant, Yakub could be infiltrated in connivance with the
local smugglers and Custom authorities. While staying at Qureshi Guest House,
he came in contact with Mohd. Aslam and also Mohd. Ayub Dar @ Ashfaq whom he
knew from Pakistan. Mohd. Aslam was finding difficulty
in completing the construction work awarded to him by the Indian Oil
Corporation at Jet Air Base, Avantipur in J&K state. Mohd. Aslam sought his
help in persuading Kashmiri militants to let him complete the work unhindered.
He collected copy of feasibility report from Mohd. Aslam of the construction
work at Jet Air Base, Avantipur and passed on these documents to Military
Intelligence of Pakistan. On his return in April, 1991. Mohd. Ayub Dar @ Ashfaq
introduced him to Tahir (accused no.3) and Gullu, local muslims of Delhi. Tahir
and Gullu were having 6-1/2 kg.
explosives
and he advised them to explode the same with the help of remote control
devices. They told him that they had caused bomb blasts at Narula Restaurant,
Connaught Place, New Delhi and also in a Cinema Hall at Chandni Chowk. In May,
1991, he was asked to work for Pak Military Intelligence on permanent basis to
which he agreed.
Initially,
he was briefed by Pak MI to tell his family that he was going to ISI as an
Intelligence Officer and that he was to be posted either in Saudi Arabia or
Dubai. Pak MI gave him training in three phasesFirst phase from 11th May, 1991
to 2nd June, 1991; Second phase from 15th June to 15th July, Third phase from
28/29th July to 29th August, 1991.
After
completion of first phase of training, he met Sajjad and Khwaja Moin-ud- din,
SDO Water and Power Development Authority. They discussed plans to help the
Sikh militants with him. They further introduced him to Lal Singh, who was
operating under a cover name of Iqbal Gill. Lal Singh sought his help in
arranging smugglers who could help him in the smuggling of arms, ammunition and
explosives from Pakistan to Punjab in India. He agreed to help Lal Singh and
arranged his meeting with Shera Jat, a notorious smuggler. On 6th June, 1991,
Lal Singh along with Daljit Singh Bitto came to his house and he arranged their
meeting with Shera. He also introduced them to some other smugglers. He
alongwith Sajjad and Lal Singh formed an organisation called K2, which stands
for Kashmir and Khalistan, and agreed to work jointly in India. As per plan,
Sajjad and his wife infiltrated into India in early September, 1991 and created
a hideout at Aligarh. He himself flew for India on 8th October, 1991 by PIA
flight under the assumed name of Manzoor Ahmed and on a new passport. At
Bombay, he stayed in Hotel Kalpana, Grant Road. Thereafter, on 17th October,
1991 he went to Aligarh and met Sajjad. Sajjad told him that he was in constant
telephonic contact with Lal Singh. Sajjad further informed him that Yasin,
Shoaib Mukhtiar (accused no.20), Javed Yousuf and Barkat Ahsani were constantly
in touch with him (Sajjad) and that they were in need of weapons for
accelerating terrorist activities including killing of BJP/Hindu leaders and
police officials in India. He tried to get extended his visa from Delhi and
Bombay but he failed to do so. Thereafter, he returned to Aligarh; burnt his
passport and decided to stay there in furtherance of task given to him. From
Aligarh, he was in constant touch with Lal Singh and Col. Hafeez-ur- Rehman in
Pakistan on Telephone Nos.851981 and 586668 respectively. He returned back to
Pakistan on 8th Nov., 1991 to arrange infiltration of Lal Singh to India. With
the help of Chowdhary Altaf Hussain, a Member of Provincial Assembly, Punjab
(Pakistan), he arranged a passport for Lal Singh in the assumed name of Iqbal
Ahmed. He also got issued a fresh passport in his assumed name of Manzoor Ahmed
and also arranged a visa for Calcutta. At Lahore, Lal Singh told him about his
contact with Amir-ul- Azim, Press Secretary, Jamat-e-Islami, Pakistan and that
he has been asked to tell Tahir Jamal (accused no.3) of Bombay to arrange
contacts in Bombay and other places for facilitating terrorist activities.
Thereafter,
he and Lal Singh left Pakistan for going to India on 11th Dec., 1991 by Sri
Lankan Flight. In the early hours of 12th Dec.,1991 they reached at Bombay.
Thereafter, on 12th itself they took flight for Calcutta. After staying for two
nights at two different guest houses near Railway Station, Hawrah, they left
for Aligarh by Kalka Mail on 14.12.1991. At Aligarh, they went to the hideout
of Sajjad.
He
along with Lal Singh, Devenderpal Singh @ Deepak, Amarpal Singh @ Videshi and
Shoaib Mukhtiar chalked out plans with Javed Yousuf, Barkat Ahsani and Yasin
Malik to obtain fire arms for killing BJP/Hindu leaders and police officials in
India. In the last week of Dec., 1991, Amir-ul-Azim, Press Secretary, Jamat-e-
Islami, Pakistan visited Aligarh and introduced him and Lal Singh to one Prof.
Amanullah of Aligarh, who was asked to provide financial assistance.
Amir
also told them that he had given some amount to Tahir Jamal and promised to
send more amount to them through hawala for terrorist activities. In the last
week of January, 1992, Daljit Singh Bitto informed him and Lal Singh about a
consignment of weapons coming to Jodhpur and that arrangement should be made to
collect the same. They called Javed Yousuf, Barkat Ahsani, Yasin and Shoaib
Mukhtiar for arranging a truck for the purpose. Shoaib was paid an advance of
Rs.15000/- for arranging truck. However, Shoaib could not arrange the truck. On
5th or 6th of March, 1992 Amar Pal Sinh @ Videshi and Manjinder Singh @ Bhushan
came to his hideout at Aligarh and collected Rs.4 lacs, which were left by Lal
Singh at his hideout at Dhora Mafi. This amount was meant for purchase of
jeep/truck for transportation of weapons. In March, 1992 he purchased a Yamaha
100 CC Motorcycle from Aligarh in the name of Javed Yousuf. In the 3rd week of
March, 1992, Col. Hafiz-ur-Rehman made a telephonic call directing him to leave
Aligarh as it was considered that Aligarh was no more a safe place for him.
On 26th March, 1992, he contacted Col. Hafiz-ur-Rehman in Pakistan, who
informed him that Major Suhail and his four associates had been arrested by the
Police and that he should not go to Delhi and Aligarh and that he should stay
at Bombay. On 2nd April, 1992 he returned to Aligarh to celebrate Id-ul-fitur
with Shoaib Mukthiar, Barkat Ahsani, Javed Yousuf and Yasin. On 8th April, 1992
police raided at the shop of Javed Yousuf and arrested him. At that time, he
was present at Javed Yousufs house. He immediately left that place and, thereafter,
being accompanied with Shoaib Mukhtiar, he went to Kathmandu by bus. On 22nd
April, 1992, in Kathmandu, he contacted Pakistan authorities and leaving Shoaib
alone in hotel, he went to Pakistan by Flight. Again, on 22nd June, 1992 he
left Karchi by air for Kathmandu. In July, 1992 he contacted two persons,
namely Puran Bahadur Mallah, and Prakash Chand Thakur, Ex. Ambassador of Nepal
to Japan and former Chief Protocol Officer, Govt. of Nepal, who could provide
persons for intelligence purposes. In January, 1993 the above two persons
infiltrated into India. He infiltrated on 8th January, 1993 and went to
Gorakhpur. He stayed in India upto 25th January and again went back to
Kathmandu. On 10th February, he again infiltrated into India and returned to
Kathmandu. Thereafter, on 30th April, 1993 Col. Rehman directed him to go to
target cities of India. On 3rd May, 1993, he left Kathmandu for going to India
and in the morning of 4th May, 1993 he reached at Gorakhpur in the assumed name
of Pawan Kumar Sharma. On 6th May, he reached Delhi and thereafter, he went to
Amritsar and Pathankot and stayed there for some days. Thereafter, he was again
directed by Col. Rehman to go back to Kathmandu. Lastly, he infiltrated to
India on 7th June, 1993. On 9th June, 1993 he reached New Delhi. In the morning
of 11th June, he went to Agra for seeing Taj Mahal.
On the
same day, he came back to New Delhi. At New Delhi, he saw press reports that he
was wanted by the Indian Police. Hence, he decided to leave for Nepal. On
18.6.1993, he went to Railway Station for going to Gorakhpur and there he was
arrested by the Delhi Police.
From
the statement, it transpires that till the end of February, 1992, the movements
of accused Nos. 1 and 2 were between Aligarh and Bombay. According to the story unfolded by
accused nos. 1,2 and 20 and to certain extent by accused nos. 3 and 4, accused
nos.1 and 20 came to Bombay in furtherance of their activities. Before leaving
for Ahmedabad, A1 and A20 were in Bombay and from Bombay A20 left for Aligarh.
A1 and A4 came to Ahmedabad and subsequently to Madras. To prove their stay in
different hotels, the prosecution has examined witnesses from the concerned
hotels.
(3)
Other Evidence: Before appreciating the evidence, we would make it clear that
if the confessional statements are accepted then it cannot be said that the
conviction of the appellants is in any way illegal or erroneous, nor even the
learned counsel for the appellants tried for the same.
However,
in the present case the confessional statements were recorded when all the
accused were in police custody by the CBI Officers who were supervising the
investigation and after recording the statements, they were not immediately
produced before the Magistrate. Therefore, even though the confessional statements
are substantive piece of evidence, to appreciate the contention that the said
statements are not truthful and reliable, other evidence produced on record
including the evidence which corroborates the said statements is required to be
considered.
For the
purpose of appreciation, other evidence can be divided as under: -
(a)
Arrest of A1 on 16.7.1992 and on the basis of his interrogation, recovery of
large quantity of fire-arms, ammunitions and explosive substances.
(b)
Hiring of C-3 Paresh Apartments and purchasing of building 4- A Usman Harum
Society stay of Accused No.1 and another person in the said premises.
(c)
Stay of A1 and A2 at Aligarh. (d) A1 and A4 going together at Ahmedabad and
Madras and their stay in various hotels.
(e)
Air Flight manifestos mentioning the names of A1, A2 and A4 for travels.
(f)
Evidence against A2-Mohd. Sharief.
(g)
Evidence against A3-Tahir Jamal.
(h)
Evidence against A4, Mohd. Saquib Nachan.
(i)
Evidence against A20, Shoaib Mukhtiar.
(a)
Recovery of large quantity of fire-arms, ammunitions and explosive substances:
Prosecution
has examined number of witnesses for establishing recovery of large quantity of
fire arms, ammunitions and explosive substance from C-33, Paresh Apartments and
4-A, Usman Harun Society, Juhapura at Ahmedabad. It is the say of the witness
PW9 PII.C. Raj, Ex.172 that in July, 1992 he was working as PSI at Chhani
police station, Baroda. On 18th July, 1992, PW10 Mr. A.K. Singh, Dy. C.P.
(North Zone), Baroda informed him that at Bombay certain terrorists were
apprehended and that he should go there and interrogate them with regard to
their movements in Gujarat. Mr. A.K. Singh gave him a confidential letter.
After reaching at Bombay, he met Mr. Khan, Addl.
Commissioner of Police of North Zone, Bombay and delivered the letter given by Mr. Singh, D.C.P.
Thereafter,
Shri Khan permitted him to interrogate the accused at Santacruz police station.
He interrogated A1 Lal Singh on 22nd July, 1992 and recorded his statement. He
was sending information regarding interrogation at Baroda by Fax and telephone.
During the interrogation of Lal Singh on 23rd July, 1992 he received
information regarding the weapons kept by him at Ahmedabad. After completing
his interrogation, he reached at Baroda on 28th July, 1992 and handed over the
statements recorded at Santacruz police station and his written report to Mr.
A.K. Singh. The prosecution has also examined PW10 Mr. Anup Kumar Singh
(Ex.174), Dy. Commissioner of Police, Baroda, who stated that in June, 1992 the
Commissioner of Police Mr. Hiralal got an information that some terrorists
including Lal Singh were arrested at Bombay and were confessing regarding
conspiracy of kidnapping of grand daughter of V.V.I.P. from Pune. He also
received information that main leaders of this conspiracy Dipak and Vijay
Pehlwan were operating from Baroda and
other cities of Gujarat.
Thereafter,
PSI I.C. Raj was sent to Bombay for interrogating terrorists. PSI
Raj was informing him from time to time about the progress of interrogation on
telephone. On the basis of information received by him on 23rd July, 1992, he
contacted the Police Commissioner who in turn talked to Mr. A.K. Tandon
Director General of Police, Gujarat State over telephone in his presence.
Thereafter, Mr. Hira Lal telephoned to Mr. Surolia (PW103) who was Dy.
Commissioner of Police, Ahmedabad in his presence and subsequently he talked to
Mr. Surolia and gave detailed information received by him. It is the say of
this witness that on 24th July, 1992 in the late hours at night he received
information from Mr. Hira Lal that successful raids were carried out at
Ahmedabad on the basis of the information given by him. He has also produced on
record the report Ex.173 submitted by PSI I.C. Raj. PW-103 Mr. A.K.R. Surolia,
Ex.548 has stated that at the relevant time he was S.P. (CID Crime), State of
Gujarat in the police head quarters. On 23rd July, 1992 Mr. Hira Lal,
Commissioner of Police, Baroda telephoned him in the evening and told him that
accused Lal Singh arrested at Bombay had made certain disclosures regarding
weapons and some explosives at some places in Ahmedabad and so he should
contact DCP Mr. A.K. Singh Baroda who would dictate the details about the
disclosures. Thereafter, Mr. A.K. Singh informed him that Lal Singh and his associates
had lived at Ahmedabad for quite sometime at two places i.e.
(1)
C-33, Paresh Apartments, Narayannagar, Paldi and
(2)
4A, Usman Harun Society, Jhuapura, Ahmedabad, and it was likely that arms,
ammunitions and explosives were hidden in the said hideouts. He immediately
contacted Commissioner of Police Mr. M.M. Mehta in his chamber who directed to
work out the details and job of selecting a team. He selected PI Mr. D.S.
Sangwan, Astodia police station for the job and the staff under his control. They
located the places and reported to him. Thereafter, in the early hours of 24th
July, 1992 he went to the areas with his team and after survey, he kept some
persons for a watch as the areas were hideouts for terrorists. He also decided
to carry out the raids in the said premises in the morning and instructed SI
Mr. Tarun Barot (PW7) to arrange for two Panchas and to reach at Paresh
Apartments. It is the say of the witness that C-33, Paresh Apartments is a flat
on 3rd floor having two rooms and kitchen and it was locked but was opened by
breaking open the lock. In the said premises, weapons including AK 56 rifles,
pistols, ammunitions etc. were found and seized after preparing recovery memo.
Thereafter, they proceeded to the second premises namely 4A, Usman Harun
Society, Juhapura, which was a small bungalow having ground floor. It was also
locked and after breaking open the lock, they entered into the bungalow and in
presence of the Panchas search was carried out and a large quantity of arms,
ammunitions and explosives etc. were recovered. It is his say that as the
articles were bulky and in large quantity they called for bags, gunny bags,
boxes etc. from the head quarter and seized articles were sent to the head
quarter after completing the panchnama, Ex.145. Thereafter, he directed the PI
Mr. Sangwan to lodge complaint. In the cross-examination, he has stated that he
first visited the site approximately between 2.30 a.m. to 3.00 a.m. and thereafter at about 10.00 am he went to the first premises.
It is
his say that he has not drawn any formal panchnama for breaking open the lock.
He further stated that it took 8 to 9 hours at Juhapura in raiding the premises
and completing the formalities of seizure. He had denied the suggestion that he
had not gone to Paresh Apartments and 4A, Usman Harun Society at the time of
raid and that all those muddamal weapons were lying with them as they were
found unclaimed or the case against Lal Singh is concocted by adjusting the
lying mudamal.
The
prosecution has then examined PW104 Mr. D.C. Sangwan, PI, Astodia Police
Station, Ex.550. It is his say that the police station was under control of DCP
(South) Mr. Surolia. On late night of 23rd July, 1992, DCP instructed him to
locate and verify Flat No.C-33, Paresh Apartments and 4- A, Usman Harun
Society, Juhapura, Ahmedabad. In early morning of 24th July, 1992 they located
the premises and informed the DCP. Thereafter, Mr. Surolia visited both the
premises. A watch was kept and it was decided to raid the premises in the
morning. However, he could not be a party to the raid because he was required
in Sessions Court in connection with one Sessions Trial but for sometime he had
gone to Paresh Apartments after attending the Court and thereafter again he had
gone to Juhapura at 1.30 p.m. At that time, weapons were found and the process
of preparing panchnama was going on. Panchnama was over at about 12.00 mid
night. Mr. Surolia directed him to lodge complaint, which is produced at
Ex.551. It was sent for registration of the offence at Vejalpur police station.
PW7
Mr. Tarun Kumar A. Barot, PSI, Ex.161 has stated that in July, 1992 he was
working at Astodia police station.
At
about 12.30 at night Mr. Sangwan, PI, directed him to locate C-33, Paresh
Apartments at Paldi and B.No.4A, Usman Harun Society at Juhapura. After
locating those places, DCP Mr. Surolia and PI Sangwan were shown those places.
In the morning, he had gone with two panchas at Paresh Apartments in a private
vehicle. At that place, DCP Mr. Surolia was present and on his instructions the
lock of the main door was broken in presence of the panchas. During the search
of the flat following arms and ammunitions were recovered: - From Flat No.C-33:
1. AK 56 rifles 4 2. Pistols 2 3. Cartridges of AK 56 rifles 200 4. Transistor
bombs operated by remote control 3 Necessary panchnama was prepared and after
pasting slips, seals were applied on the articles. Thereafter, they went to
Bungalow No.4A, Usman Harun Society, Juhapura. Here also, after breaking open
the lock of the door, search was carried out and following arms and ammunitions
were recovered:
Recovery
from Bungalow No.4A: 1. Rocket launchers - 4 2. AK 56 rifles - 31 3. Pistols
with magazines - 12 4.
Empty
magazines of pistols - 1 5. LMG without mark with wooden butt - 1 6. Empty magazine
of AK 56 rifles. - 99 7.
Empty
drum magazines - 1 8. 82.2 grenade of small bulb type of green colour - 35 9. H.E.
36 grenade - 12 10. Hand grenades fuse - 10 11. Plastic explosives packets - 20
12.
Packets
of explosives of black colour - 34 13. Packets of gelatine explosives - 34 14.
Paint tin of small size - 1 15. Orbin explosives sticks for rocket launchers -
8 16.
Rockets
- 8 17. Magnetics - 4 18. Wire roll for yellow coloured explosives - 5 19.
Insulating rolls - 14 20. Boby wire tape - 9 21. Detonator bundles - 3 22.
Detonator plugs - 14 23. Cartridges of AK 56 rifles - 5213 24. Fuse plastic
rolls make M.700 - 14 25. Hand Grenades - 10 Further 2 biscuits of yellow
colour metal like gold were recovered and seized. Outside the bungalow there
was a scooter bearing No.GJ-1-P.9485 of Ash colour. It is the say of PW7 that
after the panchnama was prepared, both panchas had signed on it in his presence
and he had also signed the panchnama. As arms and ammunitions were in large
quantity, he had sent a van to the police head quarter to obtain boxes and
bags. The packets of the arms seized at Paresh Apartments were also opened and
arranged along with the articles found at Juhapura. The boxes and gunny bags
were sent to the guard room of the police head quarters. In cross-examination,
he had stated that two places were located at 2.30 to 2.45 a.m. and were shown
to DCP.
The
evidence of the police officers with regard to the recovery of the weapons is
fully corroborated by evidence of independent witnesses, namely PW4 Dharmesh
Natwarlal Valera, Ex.137, who was studying S.Y. B.Com at the relevant time and
was residing at B-16, Paresh Apartments and PW6 Dharmen Harikirshnabhai
Dudhiya, Ex.144, who was panch of recovery.
It is
the say of PW6 that Mr. Akhilesh Sureshchandra Bhagat was second panch, who
accompanied him. Recovery of arms and ammunitions was noted in the panchnama
and was signed by him. Nothing material has been found to disbelieve this
independent panch. He has denied the suggestion that as a clerk he had
occasions to go for inventory or for taking possession. He has admitted that he
was doing seasonal business of crackers and kites on the footpath on the naka
of his lane without licence. He stated that there was no occasion of any
quarrel with police in connection with his doing cracker business. There is
detailed cross-examination of this witness but nothing substantial is found to
discredit his say. PW4 has stated that A1 and another accused had stayed in
Paresh Apartments for 4-5 months. He further stated that the persons staying in
C-33 Paresh Apartments used to bring Maruti Gypsy of sky blue colour and that
he had not seen them after the raids were carried out.
In
view of the aforesaid evidence, it is apparent that prosecution has established
beyond reasonable doubt that on the basis of interrogation of A1 Lal Singh at
Bombay, by taking prompt action police recovered large quantity of arms,
ammunitions and explosive substances. It is to stated that raids were carried
out in presence of panchas and under supervision of S.P. (CID{Crime}) Mr.
Surolia. At the time of hearing of these appeals, learned senior counsel Mr. Sushil
Kumar submitted that the prosecution has failed to establish the recovery
before the Court because admittedly the seals which were placed on the muddamal
articles at Paresh Apartments were removed at Juhapura when other arms and
ammunitions were recovered at that place. He also submitted that only one
continuous panchnama was prepared for recovery of the said articles even though
it is stated that articles were recovered from two separate premises.
He,
therefore, submitted that arms and ammunitions which were lying in the police
station were utilized for falsely implicating A1 Lal Singh.
In our
view, there is no substance in the said submission. First seals, which were
removed, were affixed again at second premises after arranging and classifying
the weapons. Further, there is no reason to disbelieve prosecution witnesses
for the recovery of large quantity of arms, ammunitions and explosive
substances, which were recovered on the basis of interrogation of A1 Lal Singh.
Immediate
action was taken for locating the premises and after locating the premises,
raids were carried out by S.P. Mr. Surolia. Learned senior counsel has also
submitted that no search warrant was obtained prior to search as required under
Rule 14 of the TADA Rules. He submitted that no entry was made in the record
despite the decision being taken to raid the premises. It is to be stated that
raid was carried out by S.P. Mr. Surolia after obtaining directions from
Commissioner of Police Mr. M.M. Mehta. He was present at the time of raiding
the premises. He was also present when panchnama was prepared for seizure of
the articles. Further, the learned Judge has specifically observed that during
the examination of the panch, PW6 Dharmen H. Dudhiya, each parcel was opened
and panch had identified the slips which were affixed at the time of sealing of
the parcel along with his signatures and of the other panch Mr. Akhilesh S. Bhagat.
He has also identified the seized articles which were sealed in his presence
and has described the premises which were raided and has fully corroborated Mr.
Surolia and Mr. Tarun Barot, with regard to seizure of the articles. Therefore,
alleged irregularity in mixing of the articles recovered from Paresh Apartments
and bungalow No.4A, Usman Harun Society would not in any way materially affect
the seizure of the said articles. It was the prosecution version that in order
to classify the weapons or to arrange them in category, the seals which were
affixed at C-33, Paresh Apartments were removed and after classification of the
arms and ammunition, they were re-sealed. We would also state that in the first
part of the panchnama the recovery from the Paresh Apartments is mentioned
separately and there is no reason to disbelieve the said part of the panchnama.
In view of the overwhelming evidence it appears that before the learned Judge,
the defence has not challenged the prosecution evidence qua recovery of arms
and ammunitions from two premises but they contended that none of the accused
can be linked with the alleged recovery or with the conscious possession of any
of the two premises. Before the trial Court much comment was made with regard
to the exhibition of the seized arms to the Press in presence of the then Chief
Minister of the State of Gujarat. But in our view, exhibition of the said
seized articles would not in any way adversely affect the prosecution version
that the said articles were seized on the basis of the information received
after interrogating A1 Lal Singh on 23rd July, 1992 and immediate action was
taken by the police after its receipt on the same night. Further, PW8 Rupsingh,
Ex.165, a Senior Scientific Officer in Central Forensic Science Laboratory at
New Delhi has inter-alia stated that on 28th August, 1992 his team started
examining the seized articles, which were kept in boxes/bags at Police head
quarter, Shahibag, Ahmedabad. The inspection was carried out for three days
after checking the seals. The seals were found intact, which tallied with the
specimen seals of Astodia police station. The report prepared by him is
produced at Ex. 167. Further, all these arms were firearms as defined in Arms
Act, 1959. In this view of the matter, it would be difficult to accept the
contentions of the defence counsel that the seized arms and ammunition were not
properly sealed or were not kept at proper place. The seized articles were kept
at the police head quarters because of its large quantity. Hence, we hold that
on the basis of interrogation of A1 prosecution has proved beyond doubt
recovery of large quantities of arms, ammunitions and explosive substances.
(b)
Hiring of C-3 Paresh Apartments and purchasing of building 4-A Usman Harun
Society stay of Accused No.1 and another person in the said premises: - To
establish that A1 Lal Singh was in possession of flat at Paresh Apartments, the
prosecution has led the evidence of PW2 Rohitkumar Rasikkumar Shah (Ex.107),
who is having a pan-bidi shop in the name of Shriram Pan Centre in Shantivan
area on Narayannagar road. It is his say that in addition to doing his business
at Pan shop he was working as a broker for lease, purchase or sale of houses.
It is his further say that Bhupendra Ratilal Shah, who is his relative, was
owner of C-33, Paresh Apartments and had given keys to him for letting it out.
For this purpose, he had a talk with one Tulsidas, who was also doing the work
as broker for letting the houses. He brought two persons who were in need of the
houses. One was introduced to him as Khanna having a plywood business at Delhi
and other stated that he was Raju. In the Court, he identified A1 Lal Singh as
Khanna. The flat was shown to them and after taking a deposit of Rs.5000/- it
was let out at monthly rent of Rs.1200/-. The keys of flats were handed over to
them.
He
further stated that the amount of rent given to him alongwith Rs.5000/- was for
the month of May and Rajubhai came twice and paid rent for the months of June
and July.
Police
raided the premises on 25th July, 1992 and his statement was recorded after 4
to 5 days at Ellis Bridge police station. Nothing material has been found in
the cross-examination of this witness. He stood to the cross-examination with
regard to the identification of A1 Lal Singh. PW1 (Ex.102) Tulsiram Govindram
has stated that at the relevant time he was doing the business of embroidery
and tailoring. He was also doing the work of Estate Broker.
In the
month of April, 1991, two persons contacted him for hiring a house. One
introduced himself as Khanna and other as Raju. Both were speaking Hindi
language. He took them to another broker Rohitbhai (PW2), who was his friend
and after contacting Rohitbhai, Flat No.33, Paresh Apartments was let out to
them at the monthly rent of Rs.1200/- and on deposit of Rs.5000/-. He has
identified A1 in the Court as Khanna. Prosecution has further examined PW3
Kantilal Jesingbhai Chauhan (Ex.108) who was working as a Dhobi (Washerman) and
doing the business in the name of Raj Cleaners at Jivaraj Park on the naka of
Krishnasagar Society. It is his say that one Maruti Wala was coming and giving
him clothes for washing and pressing. Number of bills have been produced on
record. He has identified A1 Lal Singh as Marutiwala out of two persons who
were coming at his shop. PW4 Dharmesh Natwarlal Valera (Ex.137) stated that two
persons came to stay in C-33, Paresh Apartments at the end of April, 1992 or in
the beginning of May, 1992.
Mr.
Rohit Bhai Panwala got house let out to them. He has identified one man as a
tall with good height, body and smart and other man as short, shyam coloured
and having face like an angry man. It is his say that they used to come and go
at any time and used to come at late night also.
Sometime
they used to come in a car or on occasions in auto - rickshaw. They used to
bring Maruti gypsy which was of sky colour. They also used to keep the said
vehicle opposite to his house. Subsequently, the tall man brought Maruti gypsy
of white colour bearing series of GJ-1-K. He has identified A1 Lal Singh as
white tall man. This witness is totally independent. He is a student and
resident of the same apartments wherein A1 Lal Singh along with other person
stayed. There is no reason to disbelieve the evidence of this witness with regard
to identification of A1 Lal Singh and the fact that he brought Maruti gypsy of
sky colour and thereafter of white colour. PW11 Pratikanother teen-ager, is a
resident of C-34, Paresh Apartments and he stated in the same fashion and
identified A1 as one of the residents of C-33.
PW39
Fulaji Beharaji Marwadi (Ex.299), Panch of panchnama of seized articles at
Paresh Apartments, has stated that he was called by one inspector at Paresh
Apartments. In his presence, lock of the flat was opened and three pairs of shoes,
one lahanga and some pieces of photographs were found there and the same were
seized. His signatures were obtained on panchnama papers alongwith the
signatures of another panch. He has identified his signatures. He identified
the pair of shoes but he could not identify the pieces of torn photographs.
PW12
Nizamuddin Imambhai Kureshi (Ex.177), who was working as Postman at Railwaypura
Post Office, Ahmedabad, stated that his brother-in- law, who was a lawyer had
gifted house No.4-A, Usman Harun Society to his sister (PW12s wife) in March,
1992. They decided to sell this house because they were in need of money.
Hence, he informed Haidarbhai Kureshi, who was working as a broker, for the
same. After sometime Haidarbhai called him at his residence where four persons
were sitting. Out of those, one was Haidarbhai, other was Anwarbhaianother
broker and remaining two persons were introduced to him as Mohd. Iqbal and
Mohd. Salim. Ultimately, after bargain, the consideration for sale of the house
was agreed at Rs.53000/-. He identified accused no.1 as Iqbal.
PW5
Hafdarhusain K. Kureshi (Ex.139) is a resident and owner of Bungalow No.1,
Usman Harun Society at Vejalpur.
He
stated that Bungalow No.4A was in the ownership of Nizambhai Kureshi, who was
staying at Juhapura and he wanted to sell the said house for a consideration of
Rs.60000/-.
It is
his say that he was broker of purchasing and selling houses and was also
constructing the houses and one Anwar Beg used to bring the customers. He
brought two persons namely Iqbal and Salim for purchase of the said house. Both
of them informed him that they were having transport business and that their
vehicles ply between Delhi and Ahmedabad. After preliminary
talks, Nizam Bhai and two persons were called at 7.00 pm at his residence.
Subsequently,
the sale was finalised and sale consideration was paid. He also stated that
these persons were coming to the house in Sky colour Maruti car and thereafter
they had brought jeep of Mahindra and Mahindra. Their trucks used to come there
and they used to park in the open compound. He has identified Iqbalbhai as A1
Lal Singh. In cross-examination, he has admitted that in connection with the
incident of finding out of arms from his Society, he along with Anwarbhai was
arrested but has denied that CBI has brought pressure on him for deposing
falsely. He has identified mudamal jeep and scooter, which were used by the
accused. PW23 Gurumukh Nebhandas Harwani (Ex.224), partner-Anand Enterprises,
stated that he is dealing in business of selling refrigerators and appliances
in Ahmedabad. He has proved sale and delivery of one Kelvinator refrigerator to
one Ashok Kumar Khanna and has identified A1 Lal Singh as Ashok Kumar Khanna in
the Court .
PW24
Mr. Ambalal, Hirdas Patel, Partner of Dynamic Enterprise (Ex.234), Ahmedabad
stated about sale of one refrigeration of Zenith Brand of 165 litres to one
Ashok Kumar Khanna 0n 19.5.1992 by bill Ex.235, which was recovered from 4-A,
Usman Harun Society.
With
regard to the Mahindra Jeep, which was recovered from Ahmedabad in an open plot
behind Kureshnagar Society, the case of the prosecution is that the same was
purchased by accused no.1 and absconding accused Dipak alias Manish Agrawal and
some other absconding accused. To prove this aspect, the prosecution has
examined three witnesses i.e. PW64, PW65 and PW67. PW64 Vinod Kumar Hiralal
Sharma (Ex.403), businessman of Bombay, stated that he was registered owner of Mahindra Jeep (Model No.540)
bearing Registration No.MH-04-A2114, the registration book of which is Ex.404.
He sold this jeep to one Ashok Kumar Khanna, who was introduced to him by one
Daljit Singh Shetty of Shetty Motors. He further proved the delivery note of
jeep Ex.405, which was written by his brother-in-law. PW65 Ramesh Kumar
Ramashankar Sharma (Ex.407) is a practising advocate and brother-in-law of
PW64. He has deposed that he wrote the writing Ex.405 for the purpose of sale
of Mahindra Jeep (Model No.540) bearing Registration No.MH-04-A2114, which was
owned by PW64 Vinod Kumar Sharma. The Jeep was sold through one Daljit Singh
Shetty alias Bablu Shetty, who was dealing in sale and purchase of second hand
vehicles at Bombay. The deal was settled for Rs.1,75,000/-.
Rs.1,00,000/-
was given cash and the remaining amount was promised to be given on sale of
Maruti Gypsy, which was given to Daljit Singh Shetty for sale. The person who
has signed as Ashok Kumar Khanna, buyer of the jeep was having sufficient
height and was also well built. The other person accompanying Khanna was
smaller in height. He was shown photographs Ex.255 for identification of
purchaser of the jeep but he could not identify the person in photographs as
one of the persons who came with Daljit Singh Shetty. PW67 Daljit Singh
Tajinder Singh Shetty deposed that he is dealing in sales and purchase of new
and old motor vehicles in the name of Shetty Motors at Koliwada, Sayan, Bombay.
He has
corroborated the evidence of PW64 and PW65 with regard to the sale of Mahinder
Jeep to one Mr. Ashok Kumar Khanna for Rs.1,75,000/-. He has deposed that
Manish Agrawal (absconding accused) had paid Rs.1,00,000/- in cash to Vinod
Sharma (PW64). Manish had told him to get the vehicle transferred in the name
of Vijay Kumar alias Ashok Kumar. Manish further told him to keep his Maruti
Gypsy No.MH-01-8942 for sale of it. After sale of gypsy, he was required to pay
Rs.75000/- to Vinod Sharma and the remaining amount to Manish Agrawal or Rajbir
Singh alias Harvinder Singh. On delivery note of Mahindra Jeep, Vijay Kumar had
signed as Ashok Kumar Khanna and Rajbir, a witness, signed as H. Singh. On
26.5.1992, he got the maruti gypsy transferred in his name. On 6.6.1992 this
maruti gypsy was taken away by anti terrorist squad police of Bombay from his office by saying that the
same is stolen one. On seeing both the photographs of Ex.255, he deposed that
the person in both the photographs is Manish Agrawal, who indulged in the
transaction of sale of Maruti gypsy and diesel jeep Mahindra through him.
In the
deposition of above witnesses i.e. PW64, PW65 and PW67, there is no material
contradiction with regard to sale of Mahindra Jeep to one Ashok Kumar Khanna.
It is also in their evidence that Maruti gypsy was handed over to Daljit Singh
Shetty (PW67). However, PW64 and PW65 have not identified any of the persons sitting
in the group of accused as Ashok Kumar Khanna.
The
learned counsel for A1 submitted that as the witness PW5 Haidarhusain K.
Kureshi and PW12 Nizamuddin Kureshi were taken in police custody for the
alleged offence, therefore, under police pressure they falsely deposed and
identified A1. He contended that there was no reason for not executing a
registered sale-deed in favour of A1 and, therefore, the entire story of
selling the house in favour of A1 by the wife of PW12 cannot be relied upon. In
our view, at present, there is no question of deciding the validity of the sale
in favour of A1. The limited question iswhether A1 got possession of the said
premises from its true owner. There is no reason to disbelieve PW12, who was
working as postman at Ahmedabad and PW5 who was a resident of the same Society
and was also working as a broker for the sale or purchase of the houses. They
are totally independent witnesses. May be, because at the initial stage they
were suspected to be involved in the said offence but subsequently as no
material was found they were released, would not make their evidence
inadmissible. In our view, the aforesaid evidence clinchingly establishes that
A1 along with other persons occupied the aforesaid two premises from where
large quantity of arms, ammunitions and explosive substances were found.
(c)
Stay of A1 and A2 at Aligarh: - To prove this fact, the
prosecution has examined PW43 (Ex.308) Major Singh who admittedly knows A1
since years.
He has
inter alia stated that he was resident of village Virowal of district Jalandhar
and was staying at Delhi with his family. His brother
Harjeet Singh was serving in Indian Army in Arms Regiment No.73 and his other
brother Mohinder Singh was driving taxi. He further stated that in 1978, he got
passport and went to Rome, where he joined the service of
Golden Union Shipping Company, as Assistant to Sailor.
There
he met ten other Indian boys including A1 Lal Singh who was a Sailor and who
belongs to village Nawapind, Akalgadh. He served alongwith him till May, 1981.
Thereafter,
they were sent to India. Subsequently, he along with Lal
Singh and others went to Bulgaria and joined services in other ships.
It is his say that he served along with Lal Singh till January, 1984.
Thereafter, he came back to India and
started Taxi service. He has stated about the previous talks with Lal Singh,
who was at Torranto, Canada.
He has
also stated that he was receiving telephone calls from Lal Singh from 1986 to
1990. In the year 1992, he received a telephone call from Lal Singh at his
residence and on enquiry, Lal Singh informed him that he was speaking from Aligarh. When he suggested to meet him,
initially he said no but on his insistence he was given address of Aligarh. At Aligarh, he was escorted by a Kashmiri looking boy. Thereafter, he
was taken in a house, where Lal Singh was residing. It is his say that at that
time in his house, A2 Mohd. Sharief and A20 Shoaib Mukhtiar were present, whom
he has identified in the Court. Subsequently, he asked Lal Singh that his name
was involved in Air-crash. To that Lal Singh replied that he was not involved.
After sometime, he returned to Delhi.
Thereafter, he received a telephone call from Lal Singh that one Jaswant Singh
would talk to him over telephone. After 2-3 days, Jaswant Singh who was talking
from England told him that he was sending some
luggage which he should hand over to Lal Singh. The word luggage, according to
him, was used for passport. He was again informed by Jaswant Singh that the
said luggage would be sent along with one old lady aged about 55 to 60 years,
who was not in a position to walk and would be coming, on a wheel chair, by air
accompanied by a young girl and that he should meet them at the outer gate and
inform the young girl that he was Major Singh. Thereafter, that luggage would
be handed over to him and he should pass it to Lal Singh. He did accordingly
and got one polythine cover containing khakhi cover and a white shirt. A
British passport having photograph of Lal Singh with French cut beard was also found
by him in the cover. However, the name on the passport was of Kumar. On receipt
of information from Lal Singh, the said luggage was handed over to one Deepak.
He identified accused No.1 as Lal Singh. He has identified his photograph on a
driving licence. He has also identified photograph of A2 who was with Lal Singh
when they met at Aligarh. He has also identified A2 and A20
in the Court. He had denied the suggestion that he had never met Lal Singh at Aligarh nor he received any telephone from
Jaswant Singh or secret method in which he received the luggage (passport).
Further, PW44 Harjit Singh (Ex.309), brother of PW43 Major Singh, who was
serving at Gwalior in Indian Army was examined to
prove that A1 Lal Singh visited Gwalior as his guest on his being introduced as friend of his brother. He
stayed alongwith him for three days and left for Bombay on 15th
July, 1992.
It is
his say that he gave his name as Raju when he was at Gwalior. He further stated that Raju made
telephone call probably at USA from one
STD booth for which he paid charges. The witness has identified A1 as Raju who
had been at his place as his guest. PW84 Mohd. Shakatali Saiyadyakubali
(Ex.500) stated that he is a resident of Dodhapur, Aligarh. In the year 1991, he was running a
STD/PCO booth in Shop No.2 on first floor of Barulla Market.
He was
having STD and ISD facility. He stated that one Javed was running shop in the
name of Kashmir Corner nearby his shop. Javed was making trunk calls to Srinagar from his PCO. In November, 1991, Javed
alongwith 2 to 3 persons came to his PCO and
requested to allow them to make trunk calls, on his (Javeds) responsibility of
making the payment. On inquiry, one of those persons told his name as Iqbal
Khan and another as Javed. They were also making international calls.
Initially, they were paying cash.
Later
on, they were using this facility on credit. He has proved some teleguard
slips, which prove the trunk calls made by the above persons. He has identified
Iqbal Khan as accused no.1. However, he could not identify any of the remaining
accused as Javed. Another independent person examined by the prosecution to
establish the stay of accused no.2 at Aligarh is PW86 Arifhabib Habibahmad (Ex.507), who was running a computer
course at Aligarh. He has produced on record the form
filled by Shaikh Javed on 6.1.1992 for getting training in six months computer
course. He has also produced on record the receipt of amount received for the
said computer course. It is his say that the candidate attended the course for
10 to 15 days and thereafter he left. He has identified Shaikh Javed, the
person who had enrolled and attended the course for some days, as accused no.2.
The documents bearing the signatures of accused no.2 are produced at Ex.508 and
Ex. 509.
The
evidence of PW43 Major Singh, who was knowing A1 since years clearly
establishes the presence of A1, A2 and A20 at the house of A1 at Aligarh. PW86 Arifhabib Habibahmad also
proves beyond reasonable doubt that A2 stayed at Aligarh and joined computer course run by this witness. Similarly,
PW44 Harjit Singh proves the movement of A1 from Aligarh to Gwalior, who visited him as being friend of
his brother Major Singh. This clinching evidence leaves no doubt that A1 and A2
in furtherance of their conspiracy stayed at Aligarh and were aided by A20.
(d) A1
and A4 going together at Ahmedabad and Madras and their stay in various hotels:
- Before considering this part of evidence, we would refer to the evidence of
handwriting expert PW-116 Rajkumar Birsingh Jain (Ex.572), Deputy Government
Examiner of Question Documents who has examined various hotel bills having
signatures of A1, A2 and/or A4 and also other entries made in the register
maintained by the hotels. He also examined specimen writings of the accused.
PW116 has stated that documents of the instant case were received by his office
by four different letters of different dates from Superintendent of Police,
CBI, S.I.C. II, New
Delhi. All these
letters were tendered in evidence by this witness as Ex.573, 574, 575 and 576.
Exhibits 577 to 580 are his reports. Ex.577 relates to Q.3, Q.4, Q.8, Q.2, Q.6,
Q.7, Q.9, Q.11 and Q.11/2 and Q.15 and Q.16. Ex.578 relates to Q.6A. Ex.579
relates to Q.21, Q.21A, Q.22, Q.23 and Q.24.
According
to his opinion Ex.577, the writer of S.1 to S.55Ex.397, which are 55 writings
of accused No.1, Lal Singh, also wrote (Q.3) Ex.317, which is entry No.1567 of
guests register of hotel Sidhdhartha Palace dt.29.2.1992, (Q.4) Ex.240 which is
entry No.2058 dt.3.3.1992 in the name of Iqbal Ahmad in entry register No.3 of
hotel Butterfly, and (Q.8) Ex.316, which is Bill of hotel Sidhartha Palace,
Ahmedabad.
The
writer of S.56 to S.105Ex.464, which are 50 writings of accused no.4, Mohd.
Saquib Nachan, also wrote (Q.2) Ex.315, which is entry No.1566 of guests
register of hotel Sidhdhartha Palace in the name of Mohd. Hamid
dt.29.2.1992, (Q.6 & Q.7) Ex.480, which are entries No.1351 and 1352
dt.2.7.1992 of Arrival-departure register of hotel New Woodland, (Madras), and (Q.9) Ex.314, which is carbon copy of cash memo in
the name of Mohd. Hamid.
The
writer of S.147 to S.184 Ex.466 and 499, which are specimen writings of accused
no.3, Tahir Jamal, also wrote (Q.15 and Q.16) Ex.602 and Ex.603, which are the
torn pieces of letter.
As per
opinion Ex.578, the writer of S.1 to S.55, Lal Singh, also wrote (Q.6A) Ex.259,
which is entry in the register of hotel Royal, Sarkhej, (Ahmedabad).
Further,
as per opinion Ex.579, the writer of S.185 to S.223 Ex.399, which are specimen
writings of accused no.2, Mohd. Sharief, wrote documents (Q.21 & Q.21A)
Ex.440, which is Disembarcation card in the name of Ch. Mohd. Iqbal, (Q.22)
Ex.441, which is Disembarcation card in the name of Manzoor Ahmad, (Q.23)
Ex.445, which is Embarcation card in the name of Manzoor Ahmad dt.8.10.1991,
and (Q.24) Ex.508, which is inquiry form for taking computer training of
I.C.P.C., Aligarh in the name of Shaikh Javed dt.6.1.1992.
Aforesaid
opinion lends assurance to what is stated by witnesses who have produced hotel
Bills and other documents.
PW46
Harish Pursotamdas Shah, Accountant of Hotel Sidhdharth Palace, Ahmedabad,
stated that he is working in Hotel Sidhdhartha Palace for the last 10 years;
the hotel has maintained a Guest Register in a prescribed form and they were
keeping Bill Books in duplicate; original bill is given to the customer and the
duplicate is kept on the file of the hotel. On seeing the Ex.314 and Ex. 316,
he stated that these are the bills of the hotel, the back portions of which are
signed by him. PW47 Manohar Balvant Narvekar Ex.313, a Receptionist of Hotel
Sidhdhartha Palace, Ahmedabad stated that in their hotel, registers are
maintained with regard to the check-in and check-out of the customers. He has
stated about the entry Nos.1566, Ex.315 and 1567, Ex.317 made in the hotels register
in the name of Mohd. S son of Hanif on 29.2.1992 and Iqbal Ahmed respectively
and that both these persons stayed in hotel up to 3.3.1992; they had put their
signatures in the check-in and check-out columns of their respective entries.
This witness further stated about the bill Ex.316 issued in the name of Iqbal
Ahmed and the bill Ex.314 issued in the name of Mohd. Hamid. Both these bills
were prepared by him and these bills also bear the signatures of both the
customers i.e. Iqbal Ahmed and Mohd. S. Hamid. He has identified accused no.1
as the person who stayed in the hotel in the name of Iqbal Ahmed and accused
no.4 as the person who stayed in the hotel in the name of Mohd. S. Hamid. The
handwriting expert PW116 has opined that Lal Singh, accused no.1, the writer of
specimen writings S1 to S55, Ex.397 wrote (Q.3) Ex.317which is entry No.1567 of
guest register of hotel Sidhdhartha Palace dated 29.2.1992 and (Q.8)
Ex.316which is bill of hotel Sidhdhartha Palace, Ahmedabad.
Both
these exhibits bear the signature of Iqbal Ahmed, who was identified as Lal
Singh. Likewise, Saquib Nachan, accused no.4, the writer of specimen writings
S56 to S105, Ex.464 wrote (Q.2) Ex.315 which is entry no.1566 of guest register
of hotel Sidhdhartha Palace dated 29.2.1992 and (Q.9) Ex.314 which is bill of
hotel Sidhdhartha Palace, Ahmedabad. Both these exhibits bear the signature of
Mohd. S. Hamid, who was identified as Saquib Nachan.
PW30
Mohd. Javed Ex.258Manager of Hotel Royal, Sarkhej, Ahmedabad stated that Iqbal
Ahmed visited the hotel alone on 3.3.1992 at 11.00 a.m. and he checked out at 6.30 p.m. on the very day. He proved the visit of Iqbal Ahmed on seeing the entry
No.206, Ex.259 made in the hotels register. He further proved the bill no.129
Ex.260, which shows that Rs.100/- were charged from the customer Iqbal Ahmed.
He identified A1 Lal Singh as the person who visited the hotel as Iqbal Ahmad
on the relevant day. The handwriting expert opined that the signature on
check-in and check-out entries Ex.259 made in the register of the hotel in the
name of Iqbal Ahmed bear his signature.
The
next witness PW25 Gulam Haidar (Ex.239), Partner of Butterfly Hotel, Ahmedabad
has stated about the way of maintaining the record by the hotel. He was shown
entry register of the hotel butterfly and on seeing the entry no.2058 (Ex.240)
made therein, he stated that on 3.3.1992 at 7.00 p.m. one Iqbal Ahmed came in
the hotel accompanied with two persons, out of which one was a local person
namely Mushahid. He further stated that the customer stayed in the hotel up to
6.3.1992. The check-in and check-out entries bear signature of the customer.
The witness stated that hotel is also maintaining a separate bill book for STD
calls made by the customers. On seeing the bills no.704 Ex.244 and Ex. 245, he
stated that the customer Iqbal Ahmed had made telephonic call to Aligarh over No.0571-28576 on 3.3.1992 and
5.3.1992 respectively. He identified accused no.1 as the person who stayed in
the hotel as Iqbal Ahmed and accused no.3 Tahir Jamal as one of the persons who
accompanied Iqbal Ahmed. The handwriting expert PW116 has opined that signature
on check-in and check-out entries Ex.240 made in the register of hotel in the
name of Iqbal Ahmed bear his signature. From the prosecution version, it
appears that the witness has committed mistake in identifying accused no.3 as
one of the persons who accompanied Iqbal Ahmed as it is not the prosecution
story that A3 Tahir Zamal came to Ahmedabad alongwith accused no.1.
PW77
Raghuvirchandra Amarnath Laher (Ex.469), who was General Manager of hotel
Grant, Bombay firstly stated about maintaining of
record by the hotel and about the duty of the receptionist. On seeing the entry
No.59501 dt.28.2.1992 he stated about the entry of one guest namely Mr. H.
Iqbala resident of Aligarh, in hotel Grant. He further stated
that H. Iqbal left the hotel on 29.2.1992 at 12 noon. He has further stated about Ex.470, which is receipt memo.
By this receipt memo, the register containing the entry made in the name of H.
Iqbal was taken away by the CBI Officer on 16.8.1992. PW88 Sureshbhai
Ramnikhbhai Master Ex.515 receptionist of hotel Grant, Bombay, on seeing the entry no.59501,
Ex.516 made in the guest register stated that on 28.2.1992 one guest Mohd.
Ikbal arrived at 14.00 hrs. He has stated that in the guest register, name M.
Ikbal is mentioned and that he has come from Aligarh. He left the hotel on the next day i.e. on 29.2.1992 at 12 noon. He has identified A1 as M. Ikbal. Even though the
opinion of the handwriting expert-PW116 is not positive yet there is no reason
to disbelieve the evidence of PW88.
PW79
Vishwanathan Ex.479 Receptionist of Hotel New Woodland, Madras stated about visit of A1 and A4 in
their hotel under the name of Mohd. S.A.
and Kishore Kumar on 2.7.1992 at 6.00 p.m. He further stated that both the persons left the hotel on 4.7.1992. On
seeing the entries Ex.480 made on page no.131 of arrival register of the hotel,
he stated that both the above persons were allotted room nos.1351 and 1352
respectively. Both the entries bear signatures of both the customers. He has
identified accused no.1 and 4 as the persons who stayed in the hotel. He stated
that accused no.4 is the same person who had written entries in the arrival
register of the hotel. PW116 has given positive opinion (Q.6 and Q.7)
pertaining to entries, Ex.480, made in the arrival-departure register of the
hotel, which were written by Mohd. S.A.,
who was identified as accused no.4.
To
prove the visit of A1 and A4 at Madras, the prosecution has further examined PW97 Shrinivas Samugham, who was
Security Guard at Stock Exchange Building, Madras between December, 1990 to September, 1993. He stated that on 3.7.1992,
he was on duty at visitors gallery on 4th floor of the building. On that day,
two persons came to the visitors gallery and desired to go inside. He
instructed them to obtain passes from 3rd floor. Then the said persons obtained
passes and went inside. After coming out from the visitors gallery, they
enquired about drinking water. He told them that water is available on 3rd
floor in staff lunch room. Thereafter, they went away. One of them was looking
like Punjabi and was having turban and other was having beard and moustaches.
He has identified A1 as that Punjabi man and A4 as Muslim like person. With
regard to identification of A1 and A4 much reliance cannot be placed because of
time lag.
PW78
Silas Benjamin Ex.471 was working as Receptionist-cum- Cashier of Hotel
Heritage, Bombay in July, 1992. On seeing the entry
at page no.637 of the guest book of hotel Heritage, he stated that one guest in
the name of Kishor Pilot arrived in the hotel on 4.7.1992 at 8.30 a.m. and he was allotted room no.404. The entries in the
guests register were filled in by the guest and he was expected to check out on
6.7.1992. However, he checked out on 5.7.1992 at 11.00 a.m. The guest registration card no.637 mark 86/44 is Ex.472.
The witness was not in a position to identify Kishor Pilot.
In our
view, from the above said evidence, it is quite clear that A1 and A4 stayed
together in different hotels at Ahmedabad and Madras.
(e)
Evidence with regard to record of Air Flights against A1, A2 and A4:- PW68
Shahjad Ex.433 is a Station Manager for Air Lanka (Airways) at Bombay Airport. On the basis of the manifest Ex.434 of Karachi Colombo
(Via Bombay) flight No. UL-182 dated 11.12.1991, he has stated that two
passengers had travelled in that flight under the names of Iqbal C.M. and Ahmad
M. PW69 Sudhakar Nivrutti Tilekar (Ex.436) is sub- inspector in the State of Maharashtra. In the year 1991-92 he was in the
Special Branch-II (Immigration) in the office of Commissioner of Bombay and was
posted at Sahara International Airport. He has deposed about the procedure
of routine check up of passengers. He has proved Ex.336, the visa application
form in the name of Ch. Mohd. Iqbal of dated 26.11.1992. PW70 Suresh Bapurao
Gayakwad, Ex.443, Asstt. Police Inspector Police Station Matunga stated that in
October, 1991 he was working as Sub Inspector-cum-Immigration Officer at Sahar International Airport, Bombay. He has proved the visa form and TRP of Manzoor Ahmad
(accused no.2) issued on 8.10.1991. He has produced Ex.338, which is visa
application and bears his stamp and signature; Ex.444 TRP and Ex.445 is
disembarcation card. Ex.445 card was tendered before him by the passenger and
he put his stamps on the same. He had also put the R.P. No.36740 dated
8.10.1991 on the card.
PW82
Shyam Prahlad Huilgol, Controller Reservation, Bombay has been examined by the
prosecution to prove that passengers Chaudhari Ikbal and Manzoor Ahmad had
travelled from Bombay to Calcutta by flight No.IC-175 (Bombay Calcutta) dated
12.12.1991. He was controller of that flight on the relevant day. He has proved
the manifest Ex.496 and that Chaudhari Ikbal and Manzoor Ahmad had travelled at
Sl. Nos.62 and 35 respectively. PW71 Mrs. Pushpa Shantaram, a Senior Traffic
Assistant of Indian Air Lines has stated that she had prepared passengers
manifest, Ex.452 of flight No.IC-133 (Bombay-Ahmedabad-Indore-Bhopal-Bombay)
and that two passengers named Mohd. S. (A4) and Ikbal M (A1) had travelled from
Bombay to Ahmedabad by that flight on
29.2.1992. Similarly, PW35 Nikhil Mahendrakumar Bhavsar, Traffic Assistant of
Indian Airlines, had made the manifest of passengers of Flight No.IC604
(Ahmedabad Bombay) on 3.3.1992 and has proved travelling of one person named
Mohd. S. (A4) in this flight from Ahmedabad to Bombay. PW37 Jagdishbhai Karsanbhai Baria, Sr. Traffic Assistant
of Indian Airlines proved the entries at page no.3 of passenger manifesto of
flight no. IC614 (Ahmedabad-Bombay) dated 30.6.92 stating the names of Mr.
K.Kumar and Mr. M. Hussain in the manifest. PW72 Shaikhmohmad who at the
relevant time was working as Senior Traffic Asstt., Santacruz has stated from
the Manifest of Passengers for IC-613 that on 1.7.1992-one passenger in the
name of Hussain M had travelled and was having two way ticket i.e. Ahmedabad-Bombay
Sector. PW73 Mrs. Vrinda Jairam Shetti, who at the relevant time was working as
Traffic Assistant, Santacruz produced Passenger Manifest of IC-171 Bombay
Madras Sector and stated the travelling of one passenger in the name of Kumar
K. from Bombay to Madras in the said flight on 2nd July, 1992.
Aforesaid
evidence lends assurance to the confessional statements of A1, A2 and A4 for
their travel from one place to another in different fake names. (f) Evidence
against A2, Mohd. Sharief:- PW136 Dharampal Singh, who was Dy. S.P. CBI in SIC
Branch, New Delhi at the relevant time, stated that he took over the
investigation of RC.6.(S)/92 on 11.11.1992. During investigation, he arrested
accused Mohd. Sharief on 19.6.1993, who was initially arrested by Delhi Police
in some other crime. He applied for the custody and remand of accused Mohd. Sharief,
which was allowed by the Metropolitan Magistrate, Delhi. During interrogation, accused
Mohd. Sharief expressed his wish to give confessional statement voluntarily
and, therefore, he was produced before P.C. Sharma, SP CBI, SIC II, New Delhi on 8.7.1993 and his confessional
statement was recorded. A2 has confessed that he is a Pakistani national and
ISI agent.
He
visited India several times in different fake
names. He also disclosed that the entire conspiracy was hatched by him
alongwith A1 Lal Singh and others as narrated earlier. He inter alia stated
that he was arrested by Delhi Police on 18th June, 1993, when he went to Railway Station
for going to Gorakhpur. His statement was recorded after
prolonged custody at Lal Qilla and constant physical and mental torture. As per
his say, firstly he visited India on 20th January, 1991 on a valid passport in his genuine
name.
After
reaching Delhi, he stayed at Qureshi Guest House.
Thereafter,
he returned to Pakistan in February, 1991. He again entered
into India on 12th March, 1991 through Attari Border on a new passport. Again he stayed at
Qureshi Guest House. He returned in April, 1991. Pakistan MI gave him training
in three phases. Thereafter, he came to India on 8th October,
1991 by PIA flight
under the assumed name of Manzoor Ahmed and on a new passport. At Bombay he stayed in Hotel Kalpana at Grant
road. Thereafter, he went to Aligarh. He
returned back to Pakistan on 8th November, 1991. Again he along with Lal Singh left Pakistan for going to India on 11th December, 1991 by Sri Lankan Flight. After reaching Bombay, they went to Calcutta by flight and subsequently went to Aligarh on 14th December, 1991 by train. Finally, he came to India on 7.6.1993. On 9th June, 1993 he reached New Delhi. When he was leaving for Nepal, he was arrested on 18th June, 1993. To prove the entry of A2 Mohd.
Sharief in India in the month of March, 1991, the
prosecution has examined PW52, Ex.334 Mr. Surendrasingh Kartarsingh Kadian, who
was serving as Upper Division Clerk in the Ministry of External Affairs of
Central Government.
He has
produced visa application Ex. 340 and carbon copy Ex.341 dated 5.3.1991 having
photograph of A2 Mohd. Sharief. There is no reason not to accept the aforesaid
original documents produced on record. We would only mention that the learned
counsel for the appellant has contended that photograph on the said
applications can be substituted and that there is no evidence that the said
photographs are of A2. In our view, this submission is without any substance
because it is difficult to believe that official record can be tampered by
substituting the photograph of A2 on the original visa application. In any
case, for that purpose there is no basis. Secondly, with regard to the
photograph accused has not disputed and on behalf of accused no such suggestion
was made to the witness.
The
prosecution has also examined PW60 Ex.379 Navalkishore Jayadayal Asstt. PSI,
Delhi CID Pak Section, who has stated that he was maintaining the register for
arrival and departure of persons who were coming from Pakistan. Entry No.833,
Ex.380 in the said register pertains to Mohd. Sharief son of Umardin which is
in hand writing of SI Bhup Singh. This entry Ex.380 corroborates Ex.340 and
Ex.341. It also shows that Mohd. Sharief was staying in Qureshi Guest House.
For proving the stay at the Qureshi Guest House, the prosecution has examined
PW51, Ex.327 Dilavarhussain Sardarali, who stated that he joined the service at
Qureshi Guest House situated in Bazar Chitli Kabar, Jama Masjid, Delhi, as
Manager-cum-Receptionist from 1990 till 1992. He stated that if a passenger is
a foreigner, the entries are required to be made in foreigners register and if
foreigner is a Pakistani national, hotel has to submit one C form containing
necessary information to CID Pak Section, New Delhi. He further stated that in
the said Guest House, most of the foreigners were Pakistani nationals and some
of them were Bangladeshi. On reception counter, they were verifying three
things
(1) passport,
and the necessary endorsements made on it,
(2) temporary
permit issued in small slip and
(3) visa
document.
They
were further verifying as to whether the initial visa was for Delhi and if the visa or first permit is
of Delhi, only then they were allowing the
passengers to stay in their guest house. This witness has established the stay
of A2, Mohd. Sharief at Qureshi Guest House, who came to Guest House on
16.3.1991 and left on 5.4.1991. Thereafter, Mohd. Sharief again visited the
Guest House on 10.4.1991 and left on 15.4.1991. He again arrived at Guest House
on 20.4.1991 from Madras and left on 21.4.1991. Entries in
this regard were made in the register of Guest House. He has further stated
about visit of Furkan Ahmad son of Mohmad Ismail and Khurshidabegam, the
alleged relatives of Mohd. Sharief, to the Guest House on 26.3.199 and of Mohd.
Ashfak on 21.4.1991. On that day, Mohd. Sharief was not having money with him. Mohd.
Ashfak assured the Guest House officials including PW51 that he will make the
payment within couple of days. Thereafter, Mohd. Ashfak was arrested and the
amount due to Mohd. Sharief was deducted from his (PW51s) salary by the owner
of the Guest House. He has identified A2 as Mohd.Sharief, who had stayed in his
guest house. Further, as stated earlier, his stay at Aligarh is also established by the evidence
of Major Singh PW 43 and PW 86 who was running a computer course at Aligarh.
(g)
Evidence against A3, Tahir Jamal:- Tahir Jamal, A3 in his confessional
statement has stated that he worked in SIMI as President, Secretary and
Treasurer in different periods. He has stated that after his retirement from
SIMI, when he was in Lahore, he was introduced with
Amir-ul-Azim, Press Secretary of Jamait-e-Islam, Pakistan with whom he had discussion about
political situation in India and Pakistan, particularly problems of Punjab and Kashmir where terrorism continued.
Next
day he was introduced with Iqbal who was speaking in Punjabi. His photograph
was shown to him and he identified him as the same person who had been
introduced to him in Lahore. Amir-uI-Azim wanted him to help him
in India for hiring a house for him. He went
to Karachi from Lahore and then came to Bombay in December 1991 for Conference of SIMI.
He
went to see off Amir-ul-Azim at Delhi Airport for Karachi. While en-route, Amir-ul-Azim asked him to help in publicity
of cause of Kashmir habitants and gave him a packet of
money saying that it would be useful in the proposed activity. The packet
contained 1700 pounds which he took and came back home. Then he went to his
native place, village Liandih in January 1992 and came back in the end of the
month. After return, his brother Jaffar Jamal told him that one Iqbal had tried
to contact him repeatedly from Aligarh. He
has stated that he called him at his residence where he came with one more
person called Swab.
Then
Iqbal requested him to hire a house at Ahmedabad for safe keeping of weapons,
explosives smuggled into India from Pakistan for terrorist activities. He also told him that he would
transport the weapons to Punjab and Kashmir in trucks.
Iqbal
also stated that this matter should be kept secret.
Next
day he shifted Iqbal to Hotel Grant and went to the house of Sakib. He told
Sakib about Iqbal and his requirement of a house at Ahmedabad. He brought the
air tickets for Iqbal and Saquib. After about one week, Amir-ul-Azim telephoned
him that he was sending Rs.5 lakhs for a house at a place near Paydhoni Police
Station. He reached the place and collected Rs.5,80,000/- . Next day he went
and met Saquib and informed him that money had been received and gave him Rs.1
lakh. He spent some amount and Rs. 2,15,000/- was kept in the almirah. Then he
went to his village and came to Bombay after Ramzan Id. and again went to his village for some marriage. From there he wrote a
letter to his brother Jaffar through Asif and sent the key of the almirah
saying that out of the money in almirah Rs.1,00,000/- should be given to Saquib
and the balance may be kept back. It was also conveyed that there were 1700
pounds in the almirah which should be kept safe.
Thereafter,
he was arrested by the police from his village.
His
statement gives the account of income and expenditure incurred in the
activities. The fact of recovery of 1700 pounds and substantial cash is
mentioned in the statement. The opinion of hand writing expert PW116 as regards
Ex. 602 (Q.5) and 603 (Ex.6) is positive. PW83 Gulamhasa Habibulla Ahengar was
working as a Branch Manager of J&K Bank at Ahmedabad and in his presence
the specimen hand writings of A3 were taken. He has identified A3 as the person
who had executed the specimen writings in his presence at Karanj Bhavan,
Ahmedabad.
PW135
Jafar Jamal Ex.676 is brother of A3 Tahir Jamal and a resident of Millatnagar,
Andheri (West), Bombay. His native village is Luniadih of
District Azamgarh, UP. He came to Bombay in 1982 and shifted to Millatnagar, Andheri (West). It is his say that
he was staying in the flat belonging to his maternal uncles son. His maternal
uncle was also having another flat. His brother Tahir Jamal was residing with
his maternal uncle. For sometime, Tahir had gone to Delhi but he was not knowing that for
what reason he had gone there. He has stated that his brother Tahir Jamal was
connected with SIMI and was Secretary of SIMI at Delhi.
He
further gave some names of his brothers companions like Salim Khan, Ibrahim and
Saquib Nachan (A4). In August, 1992 he came to know about arrest of his brother
Tahir Jamal. He has stated that on 12.8.1992 the CBI Officers raided their
house after the arrest of Tahir and recovered some papers and diaries relating
to Tahir. With regard to the seized documents, he admitted his signatures on
Exhibits 601, 602 and 603, which also bear the signatures of Ariff and Ansar.
In the
cross-examination by Public Prosecutor, he denied of having produced Rs.90000/-
in Indian Currency and 1700 pounds before CBI Inspector. It is his say that he
was detained and interrogated by the police at Santacruz police station, Bombay and at Ahmedabad for some days in
connection with this case.
PW127
Harbhajanram Shantaram, Dy. S.P.-CBI, S.I.C.
II
Branch, New Delhi, stated that on 14th August, 1992 he took over the investigation of
RC No.5-S/92 from Mr. M.K. Zha, Dy. S.P., who was camping at Bombay. He further took over the custody
of five accused including accused no.1 of this case, who was in custody at Santacruz
police station.
On
21.8.1992 he recovered papers relating to sale of vehicle No.MH.01.8942 from
Daljit Singh Shetty (PW67). On 26.8.1992 he, accompanied with Inspector Mr.
J.C. Prabhakar, carried out search of the house of Jafar Jamal for recovery of
certain amount. The search was carried out under the instructions of DIG Mr.
M.L. Sharma. Jafar Jamal requested not to carry out search and agreed to
handover the amount and other incriminating documents. Jafar Jamal took out
Rs.90000/- and 1700 pounds and some pieces of torn letters. Thereafter, Jafar
accompanied him to Santacruz police station, where he handed over the amount,
torn pieces of letters and two pieces of paper by affixing the same on a paper.
Pieces of papers were written in Urdu Script. Jafar Jamal read over those
papers and Sub-Inspector of Bombay police wrote the same in Hindi. A production
memo Ex.601 was prepared for pieces of papers and currency notes, which is
signed by Jafar Jamal and two witnesses namely Mohd. Aarif and Ansar Ahmad. He
and Inspector J.C. Prabhakar also put their signatures on the same. He further
stated that torn pieces of letter affixed on a plain paper are Ex.602. The two
pieces of paper are Ex.603. He further stated that he formally arrested Lal
Singh in this case i.e. RC.6-S/92. He has denied the suggestion that during
police remand of Lal Singh any third degree method was adopted.
Rather,
accused Lal Singh had tried to cut his tongue by his own teeth and tried to hit
his head with iron bars of lock up room. Doctor was brought for treatment of
Lal Singh and two CBI officers were posted in the lock up room of Lal Singh for
his safety.
According
to the prosecution, Tahir Jamal A3 was mainly dealing in financial transactions
and as contact point. The amount of Rs.90,000/- and 1700 pounds were recovered
from his house. The prosecution has further led the evidence that on 12th August, 1992 Flat No.6/208, Almadina Apartments
was raided by CBI officers and from that place they recovered some papers,
diaries and the documents written by A3 Tahir Jamal. The relevant document upon
which reliance is placed to connect A3 is Ex.602. It is in the form of a letter
written in Urdu addressed to his brother Jafar Jamal. This letter inter alia
mentions that work is in progress and that they were facing money crises. It is
also written that witness should not pay to Saquib from the fund of karobari.
Under torn pieces of letter, it is mentioned that one envelope may contain 18
to 1900 pounds, which is an exclusive property of one gentleman, only his
exclusive property. PW87 Syed Mohd. Azim Varasi, a totally independent witness
also establishes that A3 was connected with A1 and A20. He has also deposed
that A20 had asked him to contact his friend Tahir Jamal, A3 and thereafter
they met at Bombay Central Railway Station. Shoaib Mukhtiar, A20 introduced A1
Iqbal and A3 Tahir Jamal to him as his friends.
(h)
Evidence against A4, Mohd. Saquib Nachan:- He has stated in his confessional
statement that in 1981 he joined SIMI and during his association with SIMI he
came in contact with Tahir Jamal, A3. During 1990, he visited Pakistan twice. His real purpose was to meet
Salahuddin Sudani and Abdur-Rahim-Rasool Sayyef to discuss ways and means to
train Muslim youths in arms, ammunitions and explosives. Till 1991 he was
sending Sikh youths to Pakistan for military training. Throughout
this period, he was in touch with A3. In December 1991 he came to Bombay to attend SIMI Conference where he
met Amir-ul-Azim along with Bashir and Tahir. Azim told that Iqbal would meet
them and asked them to arrange hideouts for him at Ahmedabad so that the
weapons which were to be smuggled from Pakistan could be safely stored. In February 1992, he had gone to Masina Hospital, Byculla where Tahir Jamal- A3 came looking for him. He
told him that Iqbal had come to Bombay and met him.
He was
supposed to go to Ahmedabad and that he should accompany him. He met Iqbal at Grant Hotel where he was staying and discussed Ahmedabad plans. On
29.2.92, he and Iqbal left for Ahmedabad. On reaching there, they stayed at
Sidhdhartha Hotel in separate rooms booked in their names.
On
3.3.92, Iqbal asked for change of hotel, so they shifted to Hotel Butterfly
where Iqbal took one room and he went to Bombay. At the end of June 1992, Iqbal arrived at Hotel Balwas, Bombay. His photograph was shown to him
and he identified that photo as that of Iqbal and he put his initials on it
also. He met Iqbal who asked him to look for a person at Madras who can help him in blowing up the
Madras Stock Exchange. On 2.7.1992, he along with Bashir and Iqbal left for Madras by I.A. Flight. He and Iqbal stayed
in Woodland Hotel. Next day they all surveyed the Stock Exchange Building and
Iqbal told them in detail about his plan of blowing it up by means of a remote controlled
bomb.
Since,
he was not feeling well, he expressed a desire to go to Bombay. Iqbal agreed to come with him and
told him that whenever he has to contact him, he should ring up one Sharma in USA introducing himself as Raveesh. After some time he came
to learn about Iqbals arrest in Bombay through newspapers. Apprehending his arrest, he absconded till he was
arrested.
Prosecution
has established that A4 accompanied A1 at Ahmedabad and stayed along with him
in hotels, that too in different fake names. Prosecution has also led evidence
of his travels from Bombay to Ahmedabad and Ahmedabad to Bombay lending assurance to his
confessional statement that he travelled by air from Bombay to Ahmedabad and from Ahmedabad to Bombay by producing passengers manifests. Flight
coupon Ex.450 and Entry No.1567 in the guest register of hotel Sidhdhartha at
Ahmedabad in the name of Mohd. S. have been proved beyond reasonable doubt by
the prosecution in support of their case. Further, prosecution has produced
evidence regarding their stay at Ahmedabad, i.e. registers and bill books of
various hotels signed by A1 and A4. By the evidence of PW79 Vishwanathan,
Receptionist of Hotel New Woodland, Madras, prosecution has established that A1 and A4 stayed in that Hotel. The
entries of register Exs. 315 and 317 (mark Q-2 and Q-3) were sent to the
handwriting expert.
PW75,
the handwriting expert has proved his signatures. The entries Ex.315 and Ex.317
also stand proved by PW116.
Further,
A1 and A4 had travelled in fake names and came from Ahmedabad on 29.2.1992. If
A4 was not at all connected with A1 there was no necessity of travelling
together in fake names. In travel manifest Ex.452, the name which is mentioned
as Mohd. S. is proved by Ex.450.
(i)
Evidence against A20, Shoaib Mukhtiar:- A20 Shoaib Mukhtiar in his confessional
statement has stated that he was a resident of Aligarh. In the month of February, 1991 Barkat Ahsani came to Aligarh and opened a shop known as Ahsani
Colour Lab. He was friendly to Mohd. Mujib Shamshi and Mohd. Habib Shamshi who
were residents of Chowk Sheikh Dawood in Aligarh. Through these two persons he came to know Barkat Ahsani. Before
opening shop in Aligarh, Barkat Ahsani was doing business
in Srinagar. He shifted his business to Aligarh because of disturbances in Srinagar. He started visiting the shop of
Barkat Ahsani alongwith his friends Mujib and Habib. He was introduced to Javed
Yousuf by Barkat as his friend. Javed had also opened a shop. He had come to India to create a situation which could
destabilize the Govt of India in the States of Punjab and Jammu and Kashmir. Sometime in the third week of
December 1991, when he had gone to Barkat Ahsanis house, he found two persons
sitting with Barkat Ahsani. They were introduced to him as Javed and Iqbal,
businessmen from Pathankot. After 2/3 days he took them to their house.
Then
they started meeting frequently and he came to know that Javeds real name was
Mohd. Sharief and that Iqbals real name was Lal Singh and they were the same
persons who had formed K-2 for the purpose of destabilizing Govt. of India
particularly in the States of J & K and Punjab. In the month of September/October 1991, in the shop of Barkat Ahsani,
he was introduced to Sajjad who talked about the atrocities on Muslims in India. He has again stated that in the
house of Javed Yousuf, they agreed to procure weapons for killing BJP/Hindu
leaders/Police Officials in India so that
they may strike terror amongst the people and alienate Muslims from Hindu
community. Knowing their terrorist activities, on their request, sometime in
the end of December 1991 or in the beginning of Jan. 1992 he had arranged
accommodation for Lal Singh and Mohd. Sharief in the house of Amir Hassan at
New Sir Syed Nagar, Aligarh. In 1992, he had arranged for
another accommodation for them as the earlier was not found to be good by them.
He stated that in the house of Lal Singh and Mohd. Sharief, they made plan to
obtain fire arms for committing terrorist activities including killing of BJP
leaders, Police Officials; to locate houses at different places in India for
concealing weapons, for increasing terrorist activities in India and to recruit
young boys for going to Pakistan for training in handling of weapons etc. In
the last week of January 1992 or beginning of February 1992, Lal Singh, Mohd.
Sharief and Salim informed him that large consignment of weapons was to be
collected from Jodhpur and for collecting the weapons a
truck was immediately required. Lal Singh gave him Rs.10,000/- and requested to
arrange a truck for the purpose. Despite his efforts he could not arrange for a
truck. On 27.2.92, he and Lal Singh left Aligarh by Gomti Express for Delhi. Thereafter,
Mohd. Sharief and Javed Yousuf met him. Mohd. Sharief gave them two tickets for
Bombay and in the evening of 27.2.92, they
left New Delhi by Rajdhani Express for Bombay. On 28.2.92, they reached Bombay
Central Railway Station and hired a taxi and went to Tahir Jamals house from
where he contacted Mohd. Azim Varasi on telephone who was working in Tarapore Atomic
Power Project as Scientific Officer. Azim Varasi met them at Bombay Central
Railway Station. There Lal Singh gave him a ticket for Aligarh and told him that Shafiq @ Deepak
would be coming to Bombay and that he should go to Aligarh and help Mohd. Sharief and Deepak
to look after their interests in Aligarh. On 2.3.92, he reached Aligarh where
he met Mohd. Sharief. It is stated by A20 that on 10/11.3.92 he and Deepak came
to Delhi by train and proceeded to Bombay by the evening flight. He requested
Azim Varasi to arrange one room flat for Shafiq at Bombay. For one week, they stayed at the
house of Varasi. Varasi arranged for a room (flat) through a property dealer at
a monthly rent of Rs.1100/-.
They
left Bombay on 17/18.3.92. In April 1992, he
received a call from Lal Singh at his residence that he wanted to talk to Mohd.
Sharief and Javed Yousuf next day. He called them the next day at his residence
where Lal Singh informed them that the consignment of arms, ammunitions and
explosives would be arriving Ahmedabad shortly and that they should be ready
for receiving the same and also to strike at the targets. On 9.4.92, he and
Mohd. Sharief left for Muradabad enroute to Nepal after getting the news of arrest of Javed Yousuf. On 14.4.92, they
reached Kathmandu and stayed in Hotel Ice Land. From Kathmandu he returned to Betia on 17.4.92 and
stayed for 2 weeks. From there he went to Pune. During his stay at Pune, he got
financial help from Kamal Mehboob and Anand Pratap Singh. From Pune, he went to
Kathmandu sometimes in the end of March 1993.
From Kathmandu he reached Gorakhpur on 15.1.94 to his relations house,
i.e. Iqbal Ahmed, Advocate and stayed till 17.1.94.
He was
arrested by Gorakhpur Police on 18.1.1994. In his confessional statement, he
has stated that he was aware that A1 was interested in the creation of
Khalistan and A2, who is Pakistani national, was interested in separation of Kashmir and that A1 and A2 were interested
in transporting fire-arms and explosives. His presence at the house of A1 in
company of A2 at Aligarh and his meeting with A1 and A3 at Bombay is established by leading evidence
of independent witnesses.
PW43
Major Singh has specifically stated that along with A1 and A2, accused No.20
was also found at Aligarh at the house of Lal Singh. PW87
Sayeed Mohd. Azim Varasi, a Scientific Officer in Tarapur Power Project Group
with Nuclear Power Project Corporation of India at Bombay has stated that he was knowing
Shoaib Mukhtiar-A20, who is resident of Aligarh. He became friend of Shoaib Mukhtiar at Aligarh and during his study of B.Sc. Engineering, he took help
from Shoaib Mukthiyar. In 1991, he shifted to Bombay.
Whenever
he used to visit Aligarh, he used to meet Shoaib.
In
December, 1991 he received a call from Shoaib in his office from Bombay asking him to contact his friend,
Tahir Jamal, at Millatnagar. But since it was not possible for him to contact
Tahir Jamal A3, they decided to meet at Bombay Central Railway Station. Shoaib
Mukthiyar was there alongwith his friends. Shoaib introduced Iqbal-A1 and Tahir
Jamal-A3 as his friends. Thereafter, he (PW87) and Shoaib went to meet M.N.
Ansari, uncle of Shoaib and his two friends went away at some unknown place.
They took dinner there. He has further stated that he met Shoaib in January,
1992 and thereafter, Shoaib met him again in the month of March, 1992 alongwith
his friend Shafik Ahmad. They stayed with him for about five to six days. They
were having samples of locks etc. with them for business purpose.
Shoaib
and Shafik were in need of one room house. He arranged one house for them
through one broker against payment of Rs.16000/- on account of advance rent and
brokerage. After some days, Shoaib made call to him and asked to cancel the
said rent deal. He has further identified A1 as Iqbal and and A3 as Tahir
Jamal. It is to be noted that the witness has specifically stated that A1 and
A3 were introduced by A20 as his friends.
IN
SUCH CASES, TO WHAT EXTENT BURDEN OF PROOF IS ON PROSECUTION? :
In the
light of the aforesaid evidence led by the prosecution next question for
consideration iswhether the accused have been rightly convicted.
At
this stage, we would reiterate submissions of Mr. Sushil Kumar, learned senior
counsel for A1 and A4, that A1 Lal Singh was arrested on 16.7.1992 by PW56 in
CR 423/92 of Santacruz Police Station but the case was registered prior to his
arrest. A1 was interrogated by PW9 at Santacruz Police Station on 22.7.1997 and
his statement was also recorded but no FIR was registered. A1 made a confession
to PW128 on 12.9.1992 and report under Section 169 CrPC was submitted on
10.12.1992 in RC 5 but there is no evidence on record of the same. He was never
told that his confession may be used against him in TADA Case. Further,
confessional statement is not recorded in CR No.423/92. He has not stated about
his visiting Madras Stock Exchange and about his getting the places with the
help of A4, where arms were recovered. The submission of learned counsel that
A1 has not stated in his confessional statement about his visit at Madras after verification of the said
confessional statement, appears to be incorrect because A1 has specifically
stated that he along with Ravesh and his friend went to Madras by flight and stayed at different
rooms in hotel Woodland. They came back to Bombay on 4.7.1992 by flight.
Further,
we would state that presuming that there is some irregularity with regard to
the recording of FIR it would not vitiate recording of his confessional
statement.
The
report under Section 169 CrPC submitted in RC5/92 on 10.12.1992 has no bearing
on the present case. Further, for this purpose there is evidence of PW56
Shamrav Baburav Jedhe, Sr. P.I. Crime Branch, CID, Greater Bombay, who stated
that at the relevant time he was posted as Police Inspector in Anti Terrorist
Squad, North Region, Bombay. In the year 1985, there was a bomb
blast of Kanishka Air Craft in Canada and Lal
Singh was wanted in that case and intelligency had provided photographs and
other information of Lal Singh to them. On 15.7.1992, Mr. A. A. Khan, Addl. P.C.
directed him to arrest Lal Singh, who was reported to be coming at Dadar
Railway Station by Dadar-Amritsar Express on 16.7.1992 at 5.00 a.m. After due preparation, they apprehended Lal Singh
outside Dadar Railway Station. Lal Singh told his name as Keshore Kumar.
In the
presence of two panchas namely Mohd. Imran and Stivan Fransis, he took personal
search of Lal Singh and prepared panchnama Ex.350, which bears his signature
and signature of both the panchas. The driving licence found in the pocket of
Lal Singh, which was issued by RTO, Ahmedabad in the name of Keshore Kumar was
also seized, which is Ex.351. The visiting card of Hotel Samrat, Ahmedabad
found in the purse of Lal Singh is Ex.352. He further stated that he recovered
Rs.30664/- and 200 American dollars from the possession of Lal Singh. He has
identified A1 Lal Singh as the person who was arrested by him. Thereafter, Lal
Singh was taken to Santacruz Police Station and he was arrested for the offence
C.R. No.423/92, which was registered prior to the arrest of Lal Singh as he was
wanted in that case.
Further,
PW124 Mithileshkumar Avadhnarayan Zha, who at the relevant time was Dy. S.P. C.B.I.
New Delhi stated that the investigations of
RC.5.S/92 and of the instant case were being conducted simultaneously. In any
case, if these are considered as irregularities, the same are of no
significance as they would not in any way affect the prosecution case. As
stated earlier, qua A1 the evidence, apart from his confessional statement, is
in abundance. In short, during his interrogation it was revealed that in two
premises at Ahmedabad, he had kept large quantity of arms, ammunitions and
explosive substances. The evidence on this aspect is that of police officers
with regard to the raid and seizure. Apart from the evidence of police officers
including SP A.K.R. Surolia (PW103) who conducted the raid, with regard to the
stay of A1 in the said premises, there is evidence of independent panchas which
supports the prosecution version. For hiring of the premises C-33, Paresh
Apartments and for purchasing of the house 4A, Usmanharun Society, Ahmedabad,
there is unimpeachable evidence on record. Further, prosecution has led
evidence with regard to the stay of A1 and A4 in hotels at Ahmedabad and Madras.
For
A2, learned counsel submitted that the evidence against A2 nowhere indicates
that A2 visited Delhi and Aligarh for establishing contacts for alleged conspiracy and that
prosecution has not led any independent evidence to connect the accused with
the recovery of the arms etc.
In our
view, this submission is required to be considered from different angle in view
of the fact that A2 is a Pakistani national. If a foreign national is found
staying in the country without valid passport and visa and his movements from
one place to another with A1 are established and from the premises occupied by
A1, large quantities of arms and ammunitions etc. are found, it would be
prudent and reasonable to draw inference of criminal conspiracy. The learned
Sr. Counsel Mr. Sushil Kumar submitted that prosecution has not proved beyond
reasonable doubt all the links relied upon by it. In our view, to say that
prosecution has to prove the case with a hundred percent certainty is myth.
Since last many years the nation is facing great stress and strain because of
misguided militants and co-operation to the militancy, which has affected the
social security, peace and stability. It is common knowledge that such
terrorist activities are carried out with utmost secrecy. Many facts pertaining
to such activities remain in personal knowledge of the person concerned. Hence,
in case of conspiracy and particularly such activities, better evidence than
acts and statements including that of co-conspirators in pursuance of the
conspiracy is hardly available. In such cases, when there is confessional
statement it is not necessary for the prosecution to establish each and every
link as confessional statement gets corroboration from the link which is proved
by the prosecution. In any case, the law requires establishment of such a
degree of probability that a prudent man may on its basis, believe in the
existence of the facts in issue. For assessing evidence in such cases, this
Court in Collector of Customs, Madras & Others v. D. Bhoormall [1974 (2)
SCC 544] dealing with smuggling activities and the penalty proceedings under
Section 167 of the Sea Customs Act, 1878 observed that many facts relating to
illicit business remain in the special or peculiar knowledge of the person
concerned in it and held thus: 30. that the prosecution or the Department is
not required to prove its case with mathematical precision to a demonstrable
degree;
for,
in all human affairs absolute certainty is a myth, and as Prof. Brett
felicitously puts it all exactness is a fake. E1 Dorado of absolute proof being
unattainable, the law accepts for it, probability as a working substitute in
this work-a- day world. The law does not require the prosecution to prove the
impossible. All that it requires is the establishment of such a degree of
probability that a prudent man may, on its basis, believe in the existence of
the fact in issue. Thus, legal proof is not necessarily perfect proof; often it
is nothing more than a prudent mans estimate as to the probabilities of the
case.
31.
The other cardinal principle having an important bearing on the incidence of
burden of proof is that sufficiency and weight of the evidence is to be
consideredto use the words of Lord Mansfield in Blatch v. Archar [(1774) 1 Cowp
63 at p.65] according to the proof which it was in the power of one side to
prove, and in the power of the other to have contradicted.
32.
Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and
stealth being its covering guards, it is impossible for the Preventive
Department to unravel every link of the process. Many facts relating to this
illicit business remain in the special or peculiar knowledge of the persons
concerned in it. However, this does not mean that the special or peculiar
knowledge of the person proceeded against will relieve the prosecution or the
Department altogether of the burden of producing some evidence in respect of
that fact in issue. It will only alleviate that burden to discharge which very
slight evidence may suffice.
37. For
weighing evidence and drawing inferences from it, said Birch, J. in Queen v.
Madhub Chander, (1873) 21 WR Cr. 13 at p.19 there can be no canon. Each case
presents its own peculiarities and in each common sense and shrewdness must be
brought to bear upon the facts elicited.
Learned
senior counsel Mr. K.T.S. Tulsi appearing for A20, submitted that the trial
court has given the benefit of doubt to 16 co-accused despite their
confessional statements and there was no reason for the Court not to give
benefit of doubt to A20. He submitted that confessional statement of A20 was
recorded under coercion and torture and that confessional statement is having
serious discrepancies.
He
also pointed out that presuming that A20 was found in the company of A1 at Aligarh or at Bombay, this would not indicate that he
was involved in any criminal conspiracy with A1 or A2. It is his contention
that confession of other co- accused cannot be used against the appellant.
We
have already dealt with confessional statement in earlier paragraphs and,
therefore, we do not want to repeat the same. Confessional statements are held
to be admissible in evidence. With regard to the confessional statement of
co-accused, it has been held that it can be relied upon.
The
next question would be whether benefit of doubt ought to have been given to
A20. It is well understood that concept of benefit of doubt is vague. Since
years it has been considered that before granting benefit of doubt to the
accused, doubt should be reasonable one which occurs to a prudent man and not
to a weak or unduly vacillating or confused mind. On this point in Vijayee
Singh and Others v. State of U.P. [(1990) 3
SCC 190] this Court succinctly observed thus: - There is a difference between a
flimsy or fantastic plea which is to be rejected altogether. But a reasonable
though incompletely proved plea which casts a genuine doubt on the prosecution
version indirectly succeeds. The doubt which the law contemplates is certainly
not that of a weak or unduly vacillating, capricious, indolent, drowsy or
confused mind. It must be the doubt of the prudent man who is assumed to
possess the capacity of separate the chaff from the grain. It is the doubt of a
reasonable, astute and alert mind arrived at after due application of mind to
every relevant circumstance of the case appearing from the evidence. It is not
a doubt which occurs to a wavering mind.
In
that case, the Court also referred to the following observations in Miller v.
Minister of Pensions [(1947) 2 All E.R.372] by Lord Denning, J.: That degree is
well settled. It need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond the
shadow of a doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his favour which
can be dismissed with the sentence of course, it is possible but not in the
least probable, the case is proved beyond reasonable doubt It is true that
under our existing jurisprudence in a criminal matter, we have to proceed with
presumption of innocence, but at the same time, that presumption is to be
judged on the basis of conceptions of a reasonable prudent man. Smelling doubts
for the sake of giving benefit of doubt is not the law of the land. In such
type of terrorist activities if arms and ammunitions are recovered at the
instance of or on disclosure by accused, it can be stated that presumption of
innocence would not thereafter exist and it would be for the accused to explain
its possession or discovery or recovery and would depend upon facts of each
case which are to be appreciated on the scales of common sense of a prudent man
possessing capacity to separate the chaff from grain. In such cases, as stated
by Lord Denning J., law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If it is established
on record that A20 was found in company of A1 and A2 at Aligarh and that at Bombay
also he had introduced himself as friend of A1 and A3 to PW87, who is his
childhood friend, then it would be reasonable to infer that he was
co-conspirator and assisting A1 and A2, as stated in his confessional
statement.
The
learned senior counsel Mr. Sushil Kumar further contended that Rule 14 of the
TADA rules was not followed in this case, which contemplates procedure of
issuing warrant authorizing any police officer above the rank of constable to
enter and search the place in the manner specified in the warrant and to seize
anything found in or on such place, which the police officer has reason to
believe, has been or is being, or is intended to be, used for the purpose of or
in connection with any such contravention or offence. Power to issue search
warrants by a District Magistrate under Rule 14 is, to some extent, similar to
the power which could be exercised under Section 94 of the Cr.P.C. This
contention was not raised by the learned counsel for the accused before the
trial court, may be, because at the time of carrying out the search, there was
no pending case under the TADA Act and that police officers were entitled to
carry out the search and seizure under Section 165 of the Criminal Procedure
Code. The search and seizure was carried out by higher officer, namely, S.P.
C.I.D., Crime Branch. Further, exercise of such power by the District
Magistrate does not take away the authority of the police officer to search
under Section 165 of the Cr.P.C. In the present case, there is no question of
application of Rule 14 of the TADA Act as at that stage, no case for the
offence was pending. Being cognizable offence, on the basis of information
received that large quantity of arms and explosive substances were stored in
the premises, the police officer was entitled to exercise power under Section
165 Cr.P.C. Hence, we find no force in this contention.
The
learned counsel pointed out that before carrying out the raids neither FIR was
registered and even after breaking open locks the procedure is not followed. It
is true that in this case FIR was registered after carrying out the raids. For
this contention, it has been pointed out on behalf of the prosecution that
before raids were carried out there was no certainty that arms and ammunition
would be recovered. These raids were carried out only on the basis of
information received after interrogation of A1 Lal Singh.
Secondly,
the raid was carried out in the presence of higher officer, namely Mr. A.K.R.
Surolia, Dy. C.P (PW103). For breaking of locks in the said premises, there is
no question of different procedure in such cases. For this purpose panchnama
was prepared and it is mentioned that after breaking open the locks, search was
carried out. Learned counsel further submitted that there was no justifiable reason
to deposit the arms and ammunitions which were found in the said two premises
at the police head quarter. It is the say of the witness that muddamal arms and
ammunitions were deposited at the police head quarter because of its large
quantity. It is quite possible that there may not be sufficient space at the
police station where FIR was registered. In any case, for the purpose of safety
if the muddamal articles are deposited at the police headquarters, it cannot be
said that the recovery is in any way vitiated.
The
next contention that Rule 15 of TADA Rules has not been followed also does not
carry any weight. For this purpose, we would refer to the evidence of PW128,
PW132 and PW133. PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II, Punjab
Cell at New Delhi in 1992 stated that he registered the offence R.C.6-SII/92.
He recorded the confessional statements of A1 Lal Singh Ex.620 and A3 Tahir
Jamal Ex. 618 alongwith other accused. Before recording confessional
statements, he ascertained from every accused whether they were voluntarily
ready to give confessional statements. Necessary questions were put to them and
time was given to them to think over the matter. After being satisfied that
they were willing to give voluntary confessional statements, he recorded their
confessional statements. PW132 Padamchandra Laxmichandra Sharma, who was SP CBI
SIC.II at the relevant time stated that when he took over the charge of this
case RC.6.(S)/92 from Mr.
Satishchandra,
this case was on the last phase. Dy. S.P. CBI, D.P. Singh (PW136) had produced
A2 Mohd. Sharief and A20 Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994
for recording their voluntary confessional statements, which are Ex.650 and
Ex.654 respectively. Before recording their statements, he warned them of the
consequences of making confessional statements and further gave them time to
think over the matter. On being satisfied that they wanted to give confessional
statements, he recorded their statements.
PW133
Sharadkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that
in the year 1992 he was S.P. in the same branch at New Delhi. On 5th November,
1992 he was directed by DIG M.L. Sharma to proceed to Ahmedabad in order to
record statement of A4 Saquib Nachan under Section 15 of TADA Act. On 6th
November, 1992 after reaching at Ahmedabad, Saquib Nachan was produced before
him. He put necessary questions to A4 Saquib Nachan. Before recording
confessional statement, he ascertained from him whether he was voluntarily
ready to give confessional statement and warned him that if he made
confessional statement, the same can be used against him. He also apprised the
accused that he is not bound to make such statement. When the accused replied
that he wanted to make clean admission of guilt, he recorded the confessional
statement of A4 Saquib Nachan.
From
the above evidence, it is clear that Rule 15 was fully followed by the
witnesses, who recorded the confessional statements of accused.
In
view of the aforesaid evidence, the prosecution has proved its case beyond
reasonable doubt against the appellants who are convicted by the trial court.
(1)
For accused no.1, the evidence as narrated above proves, beyond reasonable
doubt, his involvement in criminal conspiracy. He moved from one place to another
in India in different fake names; he along with other persons went to
Ahmedabad, hired C-33, Paresh Apartments and got transferred building 4A in
Usmanharun Society, Juhupura, Ahmedabad. On the basis of his interrogation, the
police at Ahmedabad raided the premises and found large quantity of arms,
ammunitions and explosive substances. His stay at Ahmedabad in the said
premises is established without any shadow of doubt by examining independent
witnesses including residents of aforesaid two premises, the washerman and
other persons.
He was
staying in the name of Ashok Kumar Khanna or Iqbal.
His
stay in different hotels is also established. The purchase of Mahindra Jeep and
Maruti Gypsy is also proved.
Therefore,
it cannot be said that the trial court erred in convicting him for the offences
punishable under Section 3(3) and 5(1) of the TADA Act as well as Section 120B
IPC and under Section 25 (1) (a) of Arms Act.
(2)
Against accused no.2, apart from his confessional statement, it is proved that
he is a Pakistani national. He moved from one place to another in India. He
stayed at Aligarh with A1 and in Qureshi Guest House at Delhi in different
names during different period. Hence, there is no reason to discard his
confessional statement that he was I.S.I. agent and that he was involved in
terrorist activities and hatched conspiracy with A1.
(3)
For accused no.3, apart from proving his confessional statement, prosecution
has proved that he was found in the company of A1 and A20 at Bombay. From his premises, the letter
written by him (Ex.602 and 603) was found indicating his secret activities.
(4)
For accused No.4, apart from his confessional statement, it is proved that he
accompanied A1 at Ahmedabad and Madras and stayed in different hotels in different names. He was present at Aligarh alongwith A1 and A2. He was also
absconding.
(5)
Similarly for A20, in addition to confessional statement, the prosecution has
led the evidence to establish his association with A1 and A2 at Aligarh. Thereafter, he went to Bombay and introduced A1 and A3 as his
friends to his friend PW87.
The
next question would be with regard to the conviction of A3, A4 and A20 for the
offence punishable under Section 3(3) of the TADA Act. In our view, there
cannot be any doubt that A3, A4 and A20 have conspired alongwith A1 and A2 in
their preparatory terrorist activities. Apart from conspiring, A4 specifically
accompanied A1 at Ahmedabad for the purpose of finding hide out. He also
accompanied A1 at Madras for surveying the Madras Stock
Exchange. If A4 was not at all connected with A1, there was no necessity of
travelling together in fake names. For accused nos.3 and 20, it is true that
apart from their confessional statements, role proved against them in
conspiring with A1 is limited. However, A3, Tahir Jamal had kept substantial
amount for carrying the expenditure incurred in these activities. The torn
letter Ex.602 and 603 establishes that he was involved in secret karobar.
In
this view of the matter, it cannot be said that their conviction under Section
3(3) of the TADA Act is in any way illegal or erroneous. However, considering
the role played by A-3, A-4 and A-20, we think interest of justice would be
served if their sentence is reduced from life imprisonment to R.I. for 10
years.
In the
result, Criminal Appeal No. 219 of 1997 filed by A-1 Lal Singh and Criminal
Appeal Nos. 1409-1411 of 1999 filed by A-2 Mohd. Sharief are dismissed and
their conviction and sentence as imposed by the learned Designated Judge are
confirmed. Conviction of A-3 Tahir Jamal, A-4 Mohd. Saquib Nachan and A-20
Shoaib Mukhtiar for the offence under Section 3(3) of TADA Act is confirmed,
but their sentence is modified to the extent that they are directed to suffer
R.I. for 10 years for the same and to pay a fine of Rs. 10,000/- each and in
default to suffer R.I. for 6 months. However, their conviction and sentence
under Section 120B and 120B (1) of I.P.C. imposed by the Designated Court are maintained. Hence, Criminal
Appeal No. 244 of 1997, Criminal Appeal No.294 of 1997 and Criminal Appeal Nos.
407-409 of 1997 filed by A-4, A-20 and A-3 respectively are allowed to the
aforesaid extent only.
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