Ahmed Hussein Vali
Mohammed Saiyed & ANR. Vs. State of Gujarat [2009] INSC 1029 (12 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 2-5 OF 2003 Ahmed
Hussein Vali Mohammed Saiyed & Anr. .... Appellant(s) Versus State of
Gujarat .... Respondent(s) WITH CRIMINAL APPEAL NOs.13-14, 216-217 & 8-11
OF 2003
P. Sathasivam, J.
1.
All
the above appeals were filed before this Court under Section 19 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as "the TADA Act") against the order dated 21.10.2002 of
the Designated Court at Ahmedabad in TADA Case Nos. 8/1993, 144/1993, 2/1996,
4/1996 & 38/1996 whereby the learned Judge convicted the appellants under
Section 302 read with Section 120-B I.P.C., Sections 25(1)(c) and 27 of the
Arms Act and Section 5 of the TADA Act and sentenced them under different
counts of punishment including life imprisonment.
2.
The
brief facts leading to the filing of the present appeals are as follows:
According to the
prosecution, on 03.8.1992, the accused formed an unlawful assembly and
conspired together along with the absconding accused Sharifkhan, Resulkhan,
Aminkhan Mojkhan and Imtiyaz and launched an attack on the deceased Hansraj
Shivgopal Trivedi and other persons who were with him. In pursuance of the
same, nine persons were killed and three persons were injured by indiscriminate
firing resorted to by the appellants/accused with revolvers and automatic guns.
Accused Nos. 1,2,3,4 and 20 went to Radhika Gymkhana near Gauri Cinema, Odhav
on 03.08.1992 in a Maruti Fronti Car. Accused No. 1, Liyakathussein and
absconding accused Sharifkhan fired on Hansraj and other seven persons
resulting in their death. Both of them also resorted to indiscriminate firing
on the witnesses Vrujlal and Mohan Meghnath which caused serious injuries to
them.
Accused No. 25 -
Abdul Latif Abdul Wahab Shaikh, who was the gang leader, was accompanied by
Accused Nos.26 - Sabbirhussein Husseinmiya Shaikh, and 27 - Tajammulhasan
Alihasan Ansari, with a view to get rid of Hansraj. The complaint was given by
Laxmansinh Madansinh Bhadoria on 3.8.1992 in the Odhav Police Station bearing
1-CR No. 254 of 1992. On the strength of the complaint, various offences were
registered against the accused persons. The accused persons were arrested by
the police and after submission of charge- sheet, necessary charges were framed
by the Trial Court. On 21.12.1992, after conducting the trial in which 62
witnesses were examined by the prosecution and 139 documents were exhibited
including the confessional statements of various accused, the Designated Judge
convicted the accused under various sections of the I.P.C., Arms Act and TADA
Act. In addition to the sentence, the Designated Judge also directed the
accused persons to pay fine separately. All the sentences were ordered to run
concurrently. Aggrieved by the conviction and sentence imposed by the
Designated Judge, Ahmedabad, the appellants filed the above appeals before this
Court.
1.
2.
3.
Heard
Mr. Sushil Kumar, learned senior counsel, Ms. Nitya Ramakrishnan and Ms. Kamini
Jaiswal learned counsel, appearing for the appellants/accused, Mr. Yashank
Adhyaru, learned senior counsel appearing for the State and perused the
relevant materials including oral and documentary evidence adduced before the
Designated Court.
4.
Learned
counsel appearing for the appellants mainly contended that the conviction based
on confessional statements of the appellants without any corroborative evidence
is not sustainable. It was also pointed out that even those alleged
confessional statements of the accused are not admissible as not fulfilling the
conditions prescribed under Rule 15(3)(b) of TADA Rules. They also pointed out
that without a certificate by the competent person in clear categorical terms
about his satisfaction or belief as to the voluntary nature of the confession
recorded by him would be fatal to the admissibility and the same cannot be
cured by placing any other material. It was further submitted that no
contemporaneous record to support the confessions were produced. They also
pointed out that the alleged confessions were not sent to the Magistrate within
a reasonable time and the same is in violation of Rule 15(5) of TADA Rules.
According to them,
some confessional statements in original are missing and some are typed copies
without signatures of the accused. They also highlighted that even dying
declarations cannot be relied as being contradictory and are liable to be rejected.
There is no corroboration at all to the confessional statement of Accused
No.27.
1.
2.
3.
4.
5.
On
the other hand, learned senior counsel appearing for the State while supporting
the conviction and sentence imposed by the Designated Court submitted that,
though, in some of the confessional statements, the certificate was not
enclosed in clear terms, however, in view of the fact that recording officer
has orally testified about the confessions of the accused and the defect, if
any, is cured. He pointed out that most of the statements of the accused were
accompanied by a certificate. Insofar as the confessional statements of Accused
Nos. 27 and 28 are concerned, they were recorded post 1993 Amendment, hence,
they can be used against the co-accused. He also pointed out that the
prosecution has also relied on several other acceptable materials in support of
their charge.
6.
In
the light of the above contentions and the materials placed before the Designed
Court and statutory provisions, let us consider whether the prosecution has
established its charges leveled against the accused and the Designated Court is
right in convicting the appellants and justified in awarding appropriate
sentence.
7.
According
to the prosecution, the incident took place on 03.08.1992 at about 7.45 p.m. at
the Radhika Gymkhana situated in the Odhav Area, Ahmedabad which has been
declared as a notified area in terms of Section 2(f) of the TADA Act. To show
that the said area has been declared as a notified area in terms of TADA Act,
the prosecution has placed Exh. 572 and examined their Investigating
Officer-PW-59. All the accused along with absconding accused hatched the
conspiracy to eliminate the rival gang under the leadership of Hansraj Trivedi.
There was long standing enmity between the two gangs in the sale of liquor.
Because of this gang rivalry of Hansraj with Abdul Latif and the members of his
gang, the enmity developed between two of them and in furtherance of conspiracy
hatched initially, in the afternoon of 03.08.1992, Abdul Latif's gang went to
the office of Hansraj but Hansraj was not available there, therefore, the
members of Abdul Latif's gang returned to Madh's Mohalla, Dariapur. Thereafter,
again in the evening, Abdul Latif received an information that Hansraj and other
members are playing game of cards in Radhika Gymkhana at around 8 `O' Clock and
on the strength of the said information, the plan was chalked out to launch an
assault on Hansraj Trivedi and other members and to eliminate Hansraj Trivedi.
In pursuance thereof, they reached in two cars at Radhika Gymkhana and they
verified that Hansraj Trivedi and other members are playing game of cards and
thereafter the members of Abdul Latif's gang resorted to firing in an
indiscriminate manner and killed Hansraj Trivedi and eight other persons. Two
persons of the Abdul Latif's gang waited near the staircase and used weapons
with a view to disperse the crowd which had gathered near the Gymkhana. The
said two accused also forced the shopkeepers to down their shutters. According
to the prosecution, the said act of the accused terrorized people living in the
locality and it resulted in the death of nine persons viz. Kantibhai Jethabhai
Solanki, Ramkumar Rajaram Upadhyay, Hansraj Shivgopal Trivedi, Gatu Valnath
Jogi, Shailesh Amrutlal Panchal, Dinesh Dayalji Desai, Hasmukh Gandabhai Patel,
Asharafkhan alias Badashahkhan Pathan and Jayantibhai Joitaram Patel. In
support of the same, the prosecution examined 62 witnesses.
Out of 62 witnesses,
some turned hostile and not supported the prosecution case. As per the
charge-sheet in respect of TADA Case No. 8 of 1993 and TADA Case No. 144 of
1993, 24 persons were shown as accused. Out of the aforesaid accused, accused
Nos. 1, 2, 3, 4 and 20 were charged under Section 5 of the TADA Act as well as
under Section 25(1)(c) and Section 27 of the Arms Act. They were also charged
under Section 120-B of the IPC and all the accused were charged under Section
120-B read with Section 302/149 IPC. As accused were members of unlawful
assembly, the charge under Section 148 of IPC was also framed against them. In
TADA Case Nos. 2 and 4 of 1996, the charge was framed against A-25 to A-28.
Accused Nos. 25, 26 and 27 were charged under Section 5 of the TADA Act as well
as under Section 25(1)(c) and Section 27 of the Arms Act and also under Section
120-B of the IPC. They were also charged for the offences under Section 120-B
read with Section 302 and under Section 149 read with Section 302 of the IPC
while accused No. 28 was charged under Section 302 read with Section 120-B of
the IPC and Section 5 of the TADA Act and Sections 23(1)(c) and 27 of the Arms
Act. They were also charged with Section 148 of the IPC. In TADA Case No. 38 of
1996, the charge was framed against the accused Aminkhan Alamkhan Mojkhan
Pathan under Section 120 read with Section 302 and Section 149 read with
Section 302 and also under Section 120-B read with Section 302 and 149 of the
IPC and Section 5 of the TADA Act and Sections 25(1)(b) and 27 of the Arms Act.
1.
2.
3.
4.
5.
6.
7.
8.
After
framing the charges as mentioned above, joint trial was held and the evidence
was recorded in TADA Case No. 8 of 1993.
9.
Before
going into the confessional statements of the accused, it is relevant to
mention Section 15 of the TADA Act which reads as under:
"15. Certain
confessions made to police officers to be taken into consideration.- (1)
Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but
subject to the provisions of this section, a confession made by a person before
a police officer not lower in rank than a Superintendent of Police and recorded
by such police officer either in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds or images can be
reproduced, shall be admissible in the trial of such person or co-accused,
abettor or conspirator for an offence under this Act or rules made thereunder:
Provided that
co-accused, abettor or conspirator is charged and tried in the same case
together with the accused.
(2) The police
officer shall, before recording any confession under sub-section (1), explain
to the person making it that he is not bound to make a confession and that, if
he does so, it may be used as evidence against him and such police officer
shall not record any such confession unless upon questioning the person making
it, he has reason to believe that it is being made voluntarily."
The above provision
makes it clear that any confessional statement of a person under the TADA Act
can be recorded either by a police officer not lower in rank than of a
Superintendent of Police, in exercise of the powers conferred under Section 15
or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate
or Special Executive Magistrate who are empowered to record any confession
under Section 164(1) of Cr.P.C. in view of sub-section (3) of Section 20 of the
TADA Act.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
In
exercise of the powers conferred by Section 28 of the TADA Act, the Central
Government framed Rules namely, the Terrorist and Disruptive Activities
(Prevention) Rules, 1987.
Rule 15 prescribes
method for recording of confession made to the police officer which reads as
under:
"Recording of
confession made to police officers.- (1) A confession made by a person before a
police officer and recorded by such police officer under Section 15 of the Act
shall invariably be recorded in the language in which such confession is made
and if that is not practicable, in the language used by such police officer for
official purposes or in the language of the Designated Court and it shall form
part of the record.
(2) The confession so
recorded shall be shown, read or played back to the person concerned and if he
does not understand the language in which it is recorded, it shall be
interpreted to him in a language which he understands and he shall be at
liberty to explain or add to his confession.
(3) The confession
shall, if it is in writing, be - (a) signed by the person who makes the
confession; and (b) by the police officer who shall also certify under his own
hand that such confession was taken in his presence and recorded by him and
that the record contains a full and true account of the confession made by the
person and such police officer shall make a memorandum at the end of the
confession to the following effect:- 11 "I have explained to (name) that
he is not bound to make a confession and that, if he does so, any confession he
may make be used as evidence against him and I believe that this confession was
voluntarily made. It was taken in my presence and hearing and recorded by me
and was read over to the person making it and admitted by him to be correct,
and it contains and full and true account of the statement made by him.
Sd/- Police
Officer."
(4) Where the
confession is recorded on any mechanical device, the memorandum referred to in
sub-rule(3) in so far as it is applicable and a declaration made by the person
making the confession that the said confession recorded on the mechanical
device has been correctly recorded in his presence shall also be recorded in
the mechanical device at the end of the confession.
(5) Every confession
recorded under the said Section 15 shall be sent forthwith to the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction
over the area in which such confession has been recorded and such Magistrate
shall forward the recorded confession so received to the Designated Court which
may take cognizance of the offence."
11) The provisions of
the TADA Act, more particularly, Section 15 and Rule 15 were considered by a
Constitution Bench of this Court in Kartar Singh vs. State of Punjab, (1994) 3
SCC 569. After holding that the TADA Act is constitutionally valid, the Bench
laid down the following guidelines to ensure that the confession 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:
"(1) The
confession should be recorded in a free atmosphere in the same language in
which the person is examined and as narrated by him;
(2) The person from
whom a confession has been recorded under Section 15(1) of the Act, should be
produced before the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent under Rule 15(5) along
with the original statement of confession, written or recorded on mechanical
device without unreasonable delay;
(3) The Chief
Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously
record the statement, if any, made by the accused so produced and get his
signature and in case of any complaint of torture, the person should be
directed to be produced for medical examination before a Medical Officer not
lower in rank than of an Assistant Civil Surgeon;
(4) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973, no police officer
below the rank of an Assistant Commissioner of Police in the Metropolitan
cities and elsewhere of a Deputy Superintendent of Police or a police officer
of equivalent rank, should investigate any offence punishable under this Act of
1987.
This is necessary in
view of the drastic provisions of this Act, more so when the Prevention of
Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956
under Section 13, authorize only a police officer of a specified rank to
investigate the offences under those specified Acts.
(5) The police
officer if he is seeking the custody of any person for pre-indictment or
pre-trial interrogation from the judicial custody, must file an affidavit sworn
by him explaining the reason not only for such custody but also for the delay,
if any, in seeking the police custody;
(6) In case, the
person, taken for interrogation, on receipt of the statutory warning that he is
not bound to make a confession and that if he does so, the said statement may
be used against him as evidence, asserts his right to silence, the police
officer must respect his right of assertion without making any compulsion to
give a statement of disclosure."
The Constitution
Bench has made it clear that though it is entirely for the Court trying the
offence to decide the question of admissibility or reliability of a 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.
12) In the light of
the above statutory provisions and the safeguards as enunciated in the
Constitution Bench decision, let us analyze the evidence relied on by the
prosecution.
Though several
persons were implicated in the commission of offence, we are concerned about
eight persons who alone filed the above appeals challenging their conviction.
They are as follows:
S.No. Crl. A. No.
Name of the appellant/Accused
1. No.2-5 of 2003
Ahmed Hussein Vali Mohammed (Tada Case 8/93, Saiyed (A8) 144/93, 2/96 and 4/96)
Tajammulhasan Ali Hasan Ansari (A27)
2. No. 8-11 of 2003
Liyakat Hussein @ Master Khudabax (Tada Case 8/93, Shaikh (A1) 144/93, 2/96 and
4/96) Mohammed Taqlim @ Kalu Md. Umar Shaikh [A2] Jawedkhan @ Jaeed Azizkhan
14 Pathan [A3] Musarrafkhan Gorekhan Pathan (A14]
3. No.13-14 of 2003
Jahangir Mazarban Patel [A28] (TaTada Ca (Tada Case No. 2/96 & 4/96
4. No.216-217 of 2003
Abdul Khurdush Abdulgani Shaikh (Tada Case 8/93 & [A20] 144/93 Apart from
these factual details, it is relevant to mention that Mohammed Shafi @ Sabbu
Hajiahmed Maniar [A4], Iqbal Khan Jabbar Khan Pathan [A7] and Abdul Latif Abdul
Wahab Shaikh [A25] were reported dead during the trial, hence the charge
against them stood abated. Asharaf Khan Ajabkhan Pathan [A6] and Abdul Hamid @
Babu Battery Gulam Nabi [A24] had absconded and the Designated Court separated
their case holding that the trial would be held separately on apprehending
them. On appreciation of all the materials, the Special Judge acquitted
A5,6,9,10,11,12,13,15,16,17,18,19, 21,22,23,24 and 29 for which they were
charged. Though several accused made confessional statement implicating other
accused persons, the prosecution heavily relied on the confessional statement
of the following appellants/accused:
1. Liyakat Hussein @
Master Khudabax Shaikh (A1)
2. Jawedkhan @ Jaeed
Azizkhan Pathan [A3]
3. Tajammulhasan Ali
Hasan Ansari (A27)
4. Mohammed Taqlim @
Kalu Md. Umar Shaikh [A2]
5. Abdul Khurdush
Abdulgani Shaikh [A20]
6. Jahangir Mazarban
Patel [A28] Here again, before going into the veracity and acceptability of the
confessional statements, it is to be noted that confessional statements are to
be recorded by following procedure and supported by memorandum as required
under Rule 15(3) of the Rules. Learned counsel appearing for the
appellants/accused pointed out that Section 15 as well as Rule 15 being
mandatory, failure to comply with the same result in rejection of those
statements. On the other hand, learned senior counsel appearing for the State
submitted that the entire procedures and safeguards were fully complied with
while recording the confessional statements of the accused.
He also pointed out
that though some of the statements/memorandum were not enclosed with the
confessions as required under Rule 15(3)(b), some were fully complied with and
there is no flaw, hence the Designated Court has rightly relied on the same. He
further pointed out that even the said defect is cured, if the recording
officer orally testifies and explains the safeguards and procedures followed at
the time of recording the statement. According to him, in the case on hand,
those safeguards and procedures were fully complied with and the officer who
recorded their statement testified before the court explaining the same. He
further pointed out that inasmuch as some of the statements were recorded
post-1993 amendment to the TADA Act, the same can be used against the
co-accused.
13) Inasmuch as these
appeals were filed against the conviction and sentence of the Designated Court
in terms of Section 19 of the Act, this Court being an Appellate Court, we
verified all the confessional statements and other connected materials which
are applicable to the appellants before us with the assistance of the counsel
on either side.
14) Among the
confessional statements of the accused as pointed out, let us consider the
statement of Tajammulhasan Alihasan Ansari [A-27] recorded on 18.03.1996 by the
competent officer empowered under the Act. The perusal of his statement makes
it clear that before recording his confessional statement, he was informed that
he was not bound to make the confessional statement and the same could be used
against him in future. The recorded statement also shows that the officer has
not used any force or coercion against him to give the confessional statement
and thereafter, that is on 19.03.1996, his confessional statement was recorded
as per his statement. He explained that in 1991-92, when he was working in the
factory of Taufiqkhan Pathan, Hansraj Trivedi used to sell liquor near Ajit
Mill and in that way he came in contact with him. After the intervention of
police, Hansraj Trivedi closed the business there and for the purpose of Varli
Mataka Gambling he used to go to Sabbu Haji's Quarter situated at Gomtipur and
there he came in contact with Sabbu Haji and one Isharaq Pahelvan who was known
to Sabbu Haji. He used to sell empty plastic bags which remained at the liquor
den. He also explained about the gang rivalry between Hansraj Trivedi and
Latif. Being a member of the Latif gang, he enquired the whereabouts of Hansraj
Trivedi at his office and ultimately found that he used to go to Radhika
Gymkhana to play cards. Sabbu Haji was given information about Hansraj Trivedi
who in turn gave the information to Abdul Latif. On the date when Hansraj
Trivedi was murdered, first he went to Hansraj Trivedi's office at 4 `o' clock
in the afternoon but finding that he was not there he went to Radhika Gymkhana
situated near Gauri Cinema.
When he reached
Gymkhana, Hansraj Trivedi, Badashahkhan Pathan and other 12-15 persons were
playing game of cards.
On hearing this
information, all the appellants came in two cars and kept the same near Gauri
Cinema. 5 to 6 persons came out from the car and they were having revolver and
automatic machine guns. According to him, Sharifkhan was having automatic
machine gun. Two persons stood near the staircase of Gymkhana and Sharifkhan,
Jawedkhan, Abdulkhurdush and Liyakat Master were shown Hansraj Trivedi who was
playing game of cards in the room. When Hansraj Trivedi saw them in the room
with weapons, he tried to escape. On seeing his conduct, indiscriminate firing
was resorted to killing several persons. On hearing the gun firing, the public
gathered near Gymkhana, the gangmen of Latif rushed to their cars and returned
to their place.
15) A perusal of his
statement (A-27) shows that he disclosed the names of Sharifkhan, Jawedkhan,
Abdul Khurdush and Liyakat Master and about their plan going to Gymkhana in two
maruti vans to eliminate the rival gang leader Hansraj Trivedi and others and
started indiscriminate firing killing Hansraj Trivedi and others. At the end of
his statement, he also put his thumb impression and Deputy Commissioner of
Police, Ahmedabad city who recorded his statement authenticated the document by
putting his signature. The statement also shows that a proper certificate in
terms of Rule 15(3) was appended along with it.
16) Jahangir Mazarban
Patel (A-28) has made a confessional statement before the Competent Officer
which was recorded on 06.04.1996. He was also cautioned about the fact that his
statement could be used against him in future. The statement also shows that
there was no threat or intimidation given to him. He narrated that he used to
purchase liquor from Abdul Latif since 1992 because his father had a liquor
permit. He used to visit Abdul Latif two or three times in a week. Abdul Latif
had purchased 38 revolvers, 17 pistols and 5 NP Bore rifles without licence
from him. He used to purchase revolvers and pistols from one Keval Kishore Sharma,
an Arms and Ammunition Dealer from New Delhi in the year 1991. He also narrated
various instances of firing and killing of persons, use of Arms and Ammunitions
supplied by him. His confessional statement was signed by him and necessary
certificate has been appended by the Competent Officer.
17) Aminkhan Alamkhan
Mojkhan Pathan (A-29) has also made a confessional statement before the
competent officer.
Though he was
acquitted by the Designated Court, let us consider his statement how he
implicated these appellants.
This was recorded on
29.08.1996 and 30.08.1996. In his case also, at the time of recording his
confessional statement, the Competent Officer has taken all necessary
precautions and due care, to ascertain from him as to whether any threat or
coercion was used against him at the time of recording his confessional
statement. In turn, the accused informed him in clear terms that he was aware
of the consequences in making such statement including the fact that the same
would be used against him. He narrated the incident which took place in Radhika
Gymkhana on 03.08.1992. He also highlighted the enmity between Hansraj Trivedi
and Latif in respect of sale of country liquor. He also explained that Hansraj
Trivedi used to receive threat from Latif for not purchasing liquor from him.
In spite of warning
and threat, since Hansraj Trivedi was not acceding to the directions of the
Latif gang, a plan was chalked out to get rid of Hansraj Trivedi and,
therefore, the attempt was made to locate the presence of Hansraj. The attack
was planned to kill him and other members of his gang. In his statement, he
mentioned in categorical terms that Abdul Latif, Sharifkhan, Jawedkhan, Liyakat
Master, Abdul Khurdush, Sabbu Haji and Musharraf went to Radhika Gymkhana and
resorted to firing. He also mentioned that some of the accused were arrested by
the police. After making such statement, he put his signature at the bottom and
necessary certificate was appended by the Competent Officer as provided under
Rule 15(3) of TADA Rules. As rightly pointed out by the Designated Court, his
statement naming several persons corroborates the confessional statement given
by Tajammulhasan Alihasan Ansari (A-27). In our opinion, though A-29 was a
member of Latif's gang, his direct involvement in the said incidence as well as
commission of the offence was not proved by the prosecution case resulting in
his acquittal by the Designated Court.
18) The first
accused, namely, Liyakathussein Alias Master Khudabax Shaikh (A1) - His confessional
statement was recorded on 06.09.1992. In his case also, the Competent Officer,
who recorded his statement, cautioned him that there is no need to make any
statement and it would be used against him. His statement also shows that there
was no coercion or force while recording his statement. After all these
formalities, his confessional statement was recorded. He narrated that the
members of Abdul Latif gang used to sell liquor in Ahmedabad and used to force
everyone to purchase liquor from the members of Latif Gang and on refusal, they
used to give threat and intimidation to them. Hansraj Trivedi, who was having
his liquor den in Soni's Chawl situated at Odhav area was also selling liquor.
In spite of several threats, he never used to purchase liquor from the members
of Latif Gang which resulted in bitter enmity between the members of Latif Gang
and Hansraj Trivedi. On 03.08.1992, he went to the office of Hansraj Trivedi
along with Sharifkhan, Jawedkhan, Abdul Khurdush Rasul Party, Musharrafkhan,
Mohammed Tasalim and Imtiyaz. After return to the garage of Latif at about 7
`O' Clock on receiving information that Hansraj Trivedi was playing game of
cards in Radhika Gymkhana, members of Latif Gang i.e. Sharifkhan, Javedkhan, he
himself, Abdul Khurdush, Sabbu Haji Maniar and Mohammed Tasalim went to
Gymkhana. Sabhu Haji also came in Maruti Fronti Car wherein Musharraf, Ahmed
Hussein, Abdul Latif, Sabbirhussein and other two persons were sitting while
Imtiyaz came on the scooter at Radhika Gymkhana. Sharifkhan was driving the car
in which he was traveling and another car was driven by Musharrafkhan. The
number plates of both the cars were removed. Thereafter, they went to Radhika
Gymkhana where Imtiyaz was present. He further stated that Sharifkhan and Javedkhan
both were having AK-56 rifle. He was in possession of revolver. Abdul Khurdush
was having pistol and Sabbu Haji Mania and Mohammed Tasalim were having
revolver in their possession.
Thereafter, he went
to the first floor of Gymkhana and he himself, Sharifkhan, Jawedkhan and Abdul
Khurdush were standing near the door of the room, Imtiyaz had shown Hansraj
Trivedi and thereafter all the four persons started firing. Badashahkhan was
also fired upon. Mohammed Tasalim was standing near the stair case of Gymkhana
with revolver. After resorting to firing, they immediately went down stairs and
came to Dariapur with their weapons. Latif and other members also came to
Dariapur in another car. He came to know that when the firing was resorted to
in the Club, several persons had gathered near the Club and Mohammed Tasalim
and Sabbu Haji also fired on them. Their weapons were kept in the car of Abdul
Latif. Subsequently, he came to know that due to the firing, six to seven
persons were killed in the Gymkhana. His statement was recorded by the Deputy
Police Commissioner, South Zone and the accused put his signature below his
statement.
19) Mohammed Taslim
alias Kalu Mohammed Ummer Shaikh (A2) - His confessional statement was recorded
on 08.09.1992 by the Deputy Commissioner of Police, Western Division, Ahmedabad
City. This statement shows that he was very well aware of the fact that the
same would be used against him. The officer has also followed the strict
procedure and the accused voluntarily made the confessional statement.
He also explained
about the gang rivalry between Latif and Hansraj Trivedi in respect of sale of
liquor. He mentioned the name and other details of 26 persons as members of
Latif Gang who were involved in the matter of conspiring to murder Hansraj
Trivedi. After narrating what had happened in the forenoon of 03.08.1992, he
explained that in the evening he was sitting along with his other gang members.
After getting a message, Latif instructed them to kill Hansraj Trivedi who was
present in Gymkhana. Thereafter, they went to Gymkhana in two white Maruti
Fronti cars. He explained that in the Fronti car of Latif, himself (A2),
Sharifkhan, Javedkhan, Liyakat Master, Abdul Khurdush, Sabu Haji and in the
second Maruti Fronti Car, Mussarafkhan, Ahmed Hussain Kaliyo, Abdul Latif,
Sabir Hussain, Latif's known person (name not mentioned) and Sharifkhan's known
person (name not mentioned). He also mentioned that at the place of occurrence,
Sharifkhan had kept the automatic rifle with him, Javedkhan had taken the
second automatic rifle, Liyakat had taken the revolver, Khurdush had pistol and
Sabu had revolver. He also had a revolver. On reaching the spot, he himself,
Javedkhan, Sharifkhan and Abdul Khurdush had entered the Gate and Imtiaz had gone
into Radhika Gymkhana by the stairs ahead of them and others followed. He had
stood down near the stairs. All the four went inside Gymkhana and there were
sounds of firing. He had also fired towards the people. The four persons who
had gone upstairs came down speedily and reached the car and returned to their
workshop of Latif. He also stated that on the next day, he came to know that
where they had fired at Radhika Gymkhana, eight to nine persons were dead
including Hansraj Trivedi and his man Badshahkhan. After committing the said
crime, they were hiding in Dariyapur. After narrating all these events, he signed
his name and the officer who had taken down also put his signature. However, no
certificate was appended.
20) Jawedkhan
Azizkhan Pathan (A3) - His statement was recorded on 21.09.1992. His statement
also shows about the compliance of procedure and the fact that there was no
need to make such statement. In his statement, he also explained the business
of Hansraj Trivedi and the rivalry between him and Latif. He highlighted that
he and other gang members of Latif held meeting and chalked out the plan to
eliminate Hansraj Trivedi. He also explained how he and his gang men went to
Gymkhana in two Maruti Fronti Cars. He explained that Sharifkhan and he had
taken machine gun and rifle.
Liyakat Master was
having revolver. Abdul Khurdush was having pistol and Sabu Haji and Mohammed
Tasalim were having revolver in their possession. All of them went to the first
floor of the Club and when Sharifkhan opened the door and Hansraj Trivedi was
shown, firing was started. After firing, all of them went to Dariapur. He also
stated that the car in which Latif was sitting was having 30 rifles and Abdul
Khurdush and Rasulkhan party used to make arrangements for the weapons. He came
to know that nine persons had died in the firing and three sustained injuries.
During the course of raid, Sharifkhan and he were arrested with revolver and
pistol. His confessional statement was signed by him as well as the Competent Officer.
21) Abdul Khurdush
Abdul Gani Shaikh (A20) - His statement was recorded on 10.03.1993. All the
safeguards and procedures were followed before recording his statement.
He also mentioned
about the rivalry, going in two Maruti Cars, indiscriminate firing in the first
floor of the Gymkhana Club, killing of Hansraj Trivedi and others. He also
implicated Sharifkhan, Mohammed Tasalim, Musharrafkhan, Javedkhan, Rasulkhan
Party and Imtiyaz Ahmed. He also mentioned the weapons that were carried by
himself and others. Like others, he also stated that after firing and killing
of Hansraj Trivedi and others, they returned to their cars and went to Madh's
Mohalla.
22) We have carefully
perused and verified the confessional statements of Liyakat Hussein @ Master
Khudabax Shaikh (A1), Jawedkhan @ Jaeed Azizkhan Pathan [A3], Abdul Khurdush
Abdulgani Shaikh [A20] and Aminkhan Alamkhan Mojikhan Pathan from the original
records. The perusal of their statements show that all of them were informed
about the fact that there was no need and compulsion to make a statement and
the same would be used against them in future in the very same case. It is also
clear that all of them understood the entire procedure and made voluntary
statement to the competent authority that was authorized to record their
statement. Apart from narrating the gang rivalry between Hansraj Trivedi and
Abdul Latif in respect of sale of liquor in Ahmedabad city, they also
highlighted the number of persons involved in the conspiracy in the murder of Hansraj
Trivedi and others. Most of the accused mentioned the appellants and others who
involved in the conspiracy and the ultimate killing of Hansraj Trivedi and
others.
23) The statements of
the appellants/accused recorded on various dates demonstrate the conspiracy to
eliminate the business rivalry, and killing of other gang leader, Hansraj
Trivedi and others and how they executed the same on 03.08.1992 in the premises
of Radhika Gymkhana Club.
24) We have already
pointed out that the TADA Act, being a special Act, which permits recording of
confessional statement by a police officer not below the rank of Superintendent
of Police and the same is also admissible in evidence. However, it is the duty
of the prosecuting agency and the trial court/special court to see that strict
compliance are adhered to while recording the confessional statement and
relying on the same.
25) Mr. Sushil Kumar,
learned senior counsel and Ms. Nithya Ramakrishnan and Ms. Kamini Jaiswal,
learned counsel appearing for the appellants, vehemently contended that in the
light of the safeguards provided in Section 15 of the Act and Rule 15 of the
Rules, in the absence of specific certificate by the officer who recorded
confession as provided in Sub-rule (3) of Rule 15, they are inadmissible in
evidence and cannot be relied upon. They also relied on judgment of this Court
in Bharatbhai vs. State of Gujarat, (2002) 8 SCC 447. In view of the fact that
TADA Act has been upheld by Constitution Bench of this Court in Kartar Singh's
case (supra), the confessional statement recorded under Section 15 by a police officer
authorized therein is admissible in evidence. It is also no more res integra
that a confession recorded under Section 15 is a substantive piece of evidence.
That statement is also substantive evidence against his co-accused. However, in
the case of co-accused, though taken as substantive evidence as a rule of
prudence, the court would look upon corroborative evidence as well. In the
judgment relied on i.e. Bharatbhai (supra), this Court has held that (a)
Writing the certificate and making the memorandum under Rule 15(3)(b) is
mandatory.
(b) The language of
the certificate and the memorandum is not mandatory. (c) In case the
certificate and memorandum is not prepared but the contemporaneous record shows
substantial compliance with what is required to be contained therein, the
discrepancy can be cured if there is oral evidence of the recording officer
based on such contemporaneous record. (d) In the absence of contemporaneous record,
discrepancy cannot be cured by oral evidence based on the memory of the
recording officer. It is true that the said decision makes it clear that the
certificate and making the memorandum are mandatory, subject to certain
conditions.
26) In State [through
Superintendent of Police, CBI/SIT] vs. Nalini, (1999) 5 SCC 253, a three-Judge
Bench considered the evidentiary value of confessional statements of the
accused as well as Section 15 of the Act and Rule 15 of the Rules. After
analyzing those provisions, this Court held that the Court is free to treat the
confession of one accused as against a co-accused to be substantive evidence
against the latter, and in the absence of proof to the contrary, the Designated
Court would have full power to base a conviction of the co-accused upon the
confession made by another accused.
Rule 15(3) makes it
clear that the confession shall be signed by the maker and also by the police
officer who recorded it.
Further, it mandates
the police officer to certify under his own hand that such confession was taken
in his presence and recorded by him and that the record contains a full and
true account of the confession made by the person. The following conclusion in
para 424 is relevant:
"424. In view of
the above discussions, we hold the confessions of the accused in the present
case to be voluntarily and validly made and under Section 15 of TADA confession
of an accused is admissible against a co-accused as a substantive evidence.
Substantive evidence, however, does not necessarily mean substantial evidence.
It is the 33 quality of evidence that matters. As to what value is to be
attached to a confession will fall within the domain of appreciation of
evidence. As a matter of prudence, the court may look for some corroboration if
confession is to be used against a co-accused though that will again be within
the sphere of appraisal of evidence."
The above decision
makes it clear that the confession made by an accused if it is voluntary and
true, then it is admissible against co-accused as a substantive piece of
evidence. It is also clear that while recording confessional statement, if
there is omission to obtain signature of the accused at the end of the
confession, the same is admissible and the omission made by the competent
officer is curable in view of the provision contained in Section 463 Cr.P.C. In
the same manner, the Court has held even if there was any omission in respect
of the certificate which the competent officer is required to append under
sub-rule (3) at the foot of the confession, it can be cured as provided under
Section 463 of the Cr.P.C. Such approach is permissible in view of Section 463
of the Cr.P.C. in regard to the omission in recording confession under Section
164 Cr.P.C., the Court has clarified that the same approach can be adopted in
respect of confession recorded under Section 15 of the TADA Act. We have
already narrated the confessional statements of various accused, among them,
the statements of A-27 and A-28 satisfied Rule 15(3) in all aspects. Apart from
narration of the events, conspiracy to eliminate other gang leader and its
members, indiscriminate firing at Gymkhana, supply of Arms and Ammunitions
etc., both A-27 and A-28 subscribed their signature at the end of it and the
officer who recorded their confession apart from putting his signature also
appended a certificate in clear terms and in accordance with Rule 15(3). It is
true that in the case of confessional statements, though signature of the
accused and the officer who recorded their statement are available, the
certificate in terms of Rule 15(3) was not appended. However, as explained in
Nalini's case (supra) and rightly pointed out by the State counsel, the
officers - PWs 25, 26, 49 & 51 who recorded their statement deposed before
the Court, identified and explained the course adopted while recording their
statement as well as contents therein.
27) In order to show
that the confessional statements of a number of accused persons irrespective of
separate certificate are valid, the prosecution has examined the respective 35
competent officers who were authorized to record confessional statements which
satisfied sub-rule (3) of Rule 15. One Anupam Shrikrishna Suroliya, who was
working as Deputy Police Commissioner, Ahmedabad was examined as P.W. 24.
According to him, on
05.09.1992, the accused Liyakat who was involved in the incident which took
place in Radhika Gymkhana was produced before him as he wanted to make the
confessional statement. The other two accused, namely, Sharifkhan and Javedkhan
were also produced to record their confession as requested by them in his
evidence. Suroliya explained the consequence of their making statement and he
also asserted that he fully complied with all the formalities.
He stated that all
the three accused made their voluntary statement and thereafter they put their
signature. However, he admitted that the certificate was not appended to their
statement.
28) One Natvarlal
Veljibhai Patel, who was working as DCP, Controller was examined as P.W. 25. He
deposed that during his duty on 18.03.1996, one accused Tajammulhasan Alihasan
Ansari (A-27) was produced before him by the Competent Officer to record his
statement. He also verified from the accused that no force and threat was used
against him to give confessional statement. Thereafter, he recorded his
statement and he had put his thumb impression below his statement. He also put
his signature. On 19.03.1996, the said accused was again called for the purpose
of recording his confessional statement. According to him, once again after
following the procedure he recorded his statement and the same was kept in the
sealed cover.
29) One Jasbhai
Chootabhai Patel, Deputy Commissioner of Police, Western Zone, was examined as
P.W. 26. According to him, on 07.09.1992, the Investigating Officer had
produced accused by name Mohammed Tasalim Alias Kalu Mohammed (A-2) for the
purpose of recording his confessional statement.
He satisfied that the
accused was not forced to make any statement and no threat or force or coercion
was used against him to give confessional statement. Subsequently, he was given
time to consider and on the next date, he was called to record the confessional
statement. Again after following the procedure, he recorded his statement and
thereafter, his signature was obtained below the same. He had also put his
signature. The original copy of the confessional statement was transmitted to
the Magistrate. On 09.03.1993, when he was working as Deputy Commissioner of
Police, the Investigating Officer had produced Abdul Khurdush Abdul Gani Shaikh
for the purpose of recording his confessional statement. He recorded his
statement as requested by him. In his case also, he followed all the procedure.
In the cross-examination, he had stated that he had recorded nine confessional
statements.
The accused No.5
Maksud Ahmed Fateh Mohammed Shaikh had given the confessional statement on
20.11.1992. The officer had explained that he had also followed the same
procedure and recorded his statement as per his statement.
The confessional
statement of Musharrafkhan Gorekhan, Iqbal Hussein Alias Lalo Son of Kasambhai
Faqirbhai, Mohammed Uwesh Son of Gulam Mohammed, Amirmiya, Hafizuddin Kadari,
Mohammed Amin Alias Chotely was recorded by the competent officer and all the
formalities which was expected from the competent officer was performed by him
prior to recording the confessional statement and thereafter the confessional
statement of all the accused were recorded as requested by him. But the
Designated Court has considered the confessional statement of A-2 only as
admissible evidence amongst all the nine confessional statements recorded by
him.
30) One Jitendra
Narayan Rajgor, Deputy Commissioner of Police, Crime Branch was examined as
P.W. 49. In his testimony, he deposed that on 26.03.1993, one accused Mohammed
Farooq Alias Farooq Bawa Allarakha Shaikh was produced by the Police
Superintendent Mr. A.M. Desai for the purpose of recording confessional
statement. After ascertaining that he was free and no force or coercion was
used to give confessional statement and after giving sufficient time, his
statement was recorded. He further deposed on 04.04.1993 and 20.05.1993 the
accused Mohammed Shafi Abdul Rehman Shaikh and Abdul Hamid Alias Babu Battery
Gulam Nabi were produced before him for the purpose of recording their
confessional statements by following all the procedure and affording sufficient
time. Their statements were recorded and obtained their signature below their
confessional statements. He also put his signature. He admitted that necessary
certificate was not issued below the confessional statement of the accused.
31) Ashish Satyapal
Bhatia, Superintendent of Police, was examined as P.W. 51. In his testimony, he
has stated that on 05.04.1996 one accused Jahangir Mazarban Patel(A-28) was
produced before him for the purpose of recording the confessional statement. He
also deposed that after following the procedure he recorded his confessional
statement and the same was read over to the accused and thereafter his
signature was obtained. He also put his signature. He asserted that necessary
certificate was appended to the confessional statement given by the accused. He
also identified the accused during recording of his evidence. He informed the
court that after recording the statement the sealed cover in which confessional
statement was placed along with the accused was handed over to the
Investigating Officer for the purpose of transmitting the same to the Court of
Metropolitan Magistrate, Ahmedabad.
32) It is also
relevant to note that one Khushpalsing Nathulal Doshi, Deputy Commissioner of
Police, Law and Order, Ahmedabad was examined as P.W. 61. He deposed that on
29.08.1996 one accused Aminkhan Mojkhan (A-29) was produced before him from the
ATS Office for the purpose of recording his confessional statement. According
to him, he explained that his statement could be used against him and there was
no compulsion to make such statement. After following the procedure, he
recorded his statement and it was kept in the sealed cover and sent it to
Metropolitan Magistrate.
33) Though, learned
counsel appearing for the accused heavily commented the recording of
confessional statements of various accused and their evidentiary value in the
light of provisions of the TADA Act and Rules, as mentioned above, we are of
the view that there is no valid reason to reject the confessional statements of
A-27 and A-28. It is the assertion of the competent officers, who recorded
their statements, that they explained to them that their statements would be
used against them, they were given sufficient time to think over and after
following the procedure those officers have recorded their statement. It is not
in dispute that both A-27 and A-28 put their thumb impression/signature at the
end of their statements and the competent officers were also put their
signature. The certificate as stated in sub-rule (3) of Rule 15 was also
appended in both their statements. Though A-28 was punished only under Arms
Act, there is no reason to reject his statement in the light of compliance of
the requirements. We also adverted to other confessional statements, except
small variation most of them have implicated the persons involved from the
stage of conspiracy till the firing which took place on the first floor of
Radhika Gymkhana. Equally though all of them either put their thumb impression
or signed their name, no certificate was appended in terms of sub-rule (3) by
the competent officers who recorded their confessional statements. We have
already referred to the decision of this Court in Nalini's case (supra) and the
evidence of competent officers explaining all the aspects in detail. It is not
only the confessional statements but the prosecution has relied on certain
other materials.
34) In this context
it is quite relevant to mention that all the confessional statements which have
been considered by the Designated Court have the same opening words which is similar
to the subject matter of memorandum to be made at the end of each confession by
the respective recording officer as provided under Rule 15(3)(b) of the TADA
Rules that the accused making the confession is not bound to make the
confession and it was also cautioned that if he does so that very statement can
be used as evidence against him. The initial words of each of the confessions
also include that they are made voluntarily before the recording officer. It is
also necessary to mention that all the confessional statements made in 1992 of
A1, A2, A3 and A20 respectively are without the memorandum of the recording
officer as required under Rule 15(3)(b) of the Rules. Now according to the guidelines
given by the Constitutional Bench in Kartar Singh (supra) Rule 15 of the TADA
Rules has to be strictly complied with to make the confessional statement made
before a police officer admissible as evidence. Now this strict compliance is
necessary for the confessional statement which needs no corroboration or
contemporaneous record to prove its veracity.
But here these
confessional statements are mainly corroborating the confession made by A-27
which has been made strictly complying with all the required provision of the
TADA Act and Rules. As a result the defect, if any, present in these
confessional statements gets cured through reliable and trustworthy deposition
made by the respective recording officers in the trial before the Designated
Court. The said memorandum is required because while recording a confession the
recording officer may forget each different factual details regarding reminding
the accused of the nature of the confession made by him as well as all the
other statutory caution as each case is different and unique on its own. But
this defect can be cured by the deposition of the officer with all the factual
details which are present in the present case. All the recording officers have
deposed in the trial with all the relevant facts and the question of tempering
with the confessional statements can be done away with accordingly as has been
rightly done by the Designated Court.
35) Also here it is
important to mention that all the confessional statements which have been
considered by the Designated Court to arrive at the judgment are having similar
depiction of facts regarding gang rivalry between Latif's Gang and Hansraj
Trivedi, plotting of the criminal conspiracy by the members of Latif's gang,
the details of the activities made by the Latif's gang members on 03.08.1992
i.e. the day of commission of the crime in Radhika Gymkhana, identification of
the name of the accused present or participated at the time of the commission
of the crime, the description of arms and cars used in the commission of the
crime and how the gang members escaped to Dariyapur after the occurrence of the
crime. There is no striking difference or discrepancy or ambiguity regarding
the depiction of fact in each of the confessional statements that has been considered
by the court and they are very much able to corroborate the confessional
statement made by A-27. It is also to be remembered that all the confessions
are made almost right after the accused got apprehended so the delay in
recording the same is quite reasonable.
36) The Amendment
made by Act 43 of 1993 to Section 15 of the TADA Act included the words
"or co-accused, abettor or conspirator" along with the person making
the confessional statement to be admissible in the trial of such person as well
as them provided that co-accused, abettor or conspirator is charged and tried
in the same case together with the accused.
The appellants
submitted that this Court in State of Rajasthan v. Ajit singh, (2008) 1 SCC 601
has been noted, as the words "or co-accused, abettor or conspirator"
were inserted in the Act only in 1993, they could not be applied
retrospectively. They have also submitted that herein, the offence was
committed on 03.08.1992, before the amendments were made to the TADA Act and as
such, confession of a co- accused cannot be used against the appellants herein.
It is also contended before us that the confessional statement of A- 27 has
been made on 19.03.1996 which was after the amended provision of Section 15(1)
of the TADA Act came into effect. As far as the admissibility of the
confessional statement of A-27 is concerned with regard to his co-accused in
this case, it is not vitiated because of the Amendment and it is rightly used
as a major evidence for the trial of his co-accused by the Designated Court. As
this confessional statement was made complying with all the procedural
essentials as provided by the TADA Act and Rules it can be a valid ground for
the conviction when corroborated with the confessional statement of the other
four accused namely A1, A2, A3 and A20 respectively which have been made prior
to the amendment of the Act. Apart from the confessional statement there were
also other materials to support the prosecution case which we discuss
hereunder.
37) On behalf of the
appellants, it was also submitted that the dying declaration (Exh. 201) of
Badshahkhan which was recorded by PW6, Sukhdevsing Sardarsing Chaudasama,
mentions only the name of Sharifkhan and Liyakat Master, (A-1) and the names of
other accused who were said to be present upstairs at the time of gun-fire in
the Gymkhana in the confessional statement are not present. Badshahkhan told
PW6 that he and Hansraj Trivedi and other members were playing game of cards at
Radhika Gymkhana at about 8 `o'clock at night, Sharifkhan who was having gun in
his possession and Liyakat Master who was having pistol in his possession
started firing at him and Hansraj Trivedi and the others were also fired at.
According to PW6 after making this statement Badshahkhan became unconscious.
Though this dying declaration is incomplete, it does not reject completely the
idea of the presence of other accused as detailed in the confessional
statements of the accused and thus it does not negate the admissibility of the
confessional statements. The evidence of PW-6 shows that he had recorded the
dying declaration as narrated by the deceased. If the prosecution had been out
to implicate all accused falsely in case, the dying declaration would have been
so recorded. However, the evidence of PW-6 shows that he stopped recording
dying declaration as soon as he realized that the maker was loosing
consciousness. The reliable dying declaration though incomplete, materially
corroborates the confessional statement made by Accused No.27 and is rightly relied
on by the Designated Court.
38) It is useful to
refer other materials relied on by the prosecution and accepted by the
Designated Court. The complaint, Exh. 609, dated 03.08.1992 contains all the
materials. The complainant-Laxmansingh Madansingh Bhadoria narrated in his
complaint that he knows Hansraj for last eight years. He also mentioned about
the animosity between Hansraj and famous bootlegger Latif. He also narrated in
his complaint that Hansraj used to go to Radhika Gymkhana to play game of cards
which is situated at National Highway No. 8, near Gauri Cinema. He highlighted
how these accused persons came in a car and went to the AC room situated in the
first floor of Gymkhana where Hansraj and his associates were playing the game
of Rami. The complainant had also narrated that on reaching the AC room, he
found that 11 persons had sustained injuries due to firing of bullets and they
were lying in the pool of blood. It was he who rushed down to the ground floor
and informed Rajendrakumar Shivgopal Trivedi, the elder brother of Hansraj. It
was further stated that immediately Rajendrabhai came with Fiat NE 118 car and
Hansraj and Badshahkhan who had sustained injuries had taken in that car to the
Shardaben Hospital for giving immediate treatment. In the meantime, Hansraj
succumbed to the injuries. The complaint also describes about the conspiracy
hatched as per the Abdul Latif to get rid of Hansraj and others. The said
complaint was given to the Police Superintendent. Since complainant was not alive
during the trial, therefore, he was not summoned by the prosecution.
39) Apart from
confessional statement of the accused which we have discussed hereinabove, the
prosecution had also relied on various other witnesses and the Designated Court
has rightly accepted the same. PW-2, Rajendrakumar Shivgopal Trivedi, brother
of deceased Hansraj Shivgopal Trivedi, has deposed before the Court that he had
received phone call from Ranjitsinh Ramansinh Rathod at about 8 `O' clock and
he had mentioned about the firing which took place in the Gymkhana. On hearing
the information over phone, he went in the car to Radhika Gymkhana and when he
reached on the first floor of the Gymkhana, he saw his brother Hansraj
Shivgopal Trivedi in a pool of blood having sustained serious injuries. Apart
from him, other 8 to 9 persons were also lying in the room having sustained
serious injuries. He also deposed that his elder brother Rajdev and other
persons from the neighborhood arrived at the scene of incident. According to
him, with the persons gathered, Hansraj was brought down from the first floor
and he was taken to hospital in car.
Badashahkhan, who had
also sustained injuries was also brought down from the first floor and brought
to Shardaben Hospital for treatment. When he was driving the car, Ranjit Singh
had asked Badshah Khan about the incident and injuries. Badshah Khan replied
that the members of Latif Gang came to the Gymkhana and fired indiscriminately
on Hansraj and others whom sustained serious injuries. He also explained the
dispute with regard to purchase of liquor between his brother Hansraj and
Latif.
40) PW-4, Rajdev
Gopal Trivedi, another brother of Hansraj Trivedi, who also rushed to the
Gymkhana Club narrated what his brother PW-2 has stated before the Court.
41) One, Shivputra
Chandrapal, who was working in the office of Hansraj was examined as PW-26
before the Court. He deposed that when he was staying in the office of Hansraj
at about 7-30 hours in the evening of 03.08.1992, he had received the message
that firing was resorted to in Radhika Gymkhana Club. On receipt of the said
message, he went to the Club along with the others and on reaching the first
floor of the Club, he noticed seven persons were lying in the pool of blood
having sustained serious injuries. Apart from Hansraj, Badshah Khan also
sustained injuries during the firing. He also explained the enmity between the
Hansraj group and Latif over the sale of liquor.
42) PW-55, Mohanlal
Laxmichand Anal, who was having his shop dealing in arms and ammunition in New
Delhi. The name of the shop is Anal Armory and according to him at the relevant
time he was having the licence to keep the arms and ammunitions. He deposed
that the order for revolver was given by Jahangir Patel, A-29. One, Jitendrakumar
Ranchhodlal Patel was examined as PW-56. Panchnama in respect of recovery of
one pistol and revolver which was lying on the table was prepared in his
presence. He identified A-3, Jawedkhan. Maharajsinh Kunver Pratapsinh Rajput
was examined as PW-58. According to him, he had been working as a Manager in
Keval Kishan Sharma Arms and Ammunitions Dealer Shop since 1989. The office
situated in C/6 Lakshminagar Aruna Park, Delhi. He further explained that on
behalf of the B.D. Patel and Sons, one Jahangir Patel, A-29 used to visit their
shop in connection with the sale of weapons.
43) PW-8 to PW-12 -
Post Mortem doctors, who examined the dead bodies, deposed before the Court
about their nature of injuries and the cause of death. Their evidence clearly
support the prosecution case that the deceased were gunned to death due to
bullet injuries. It is also clear from their evidence that the vital injuries
sustained were caused due to the use of the firearm and all the injuries were
inflicted prior to the death of the deceased.
44) PW-13,
Kamaleshkumar Babubhai Modi, who was having a Pan Galla near Gauri Cinema,
deposed that he was sitting in his shop on 03.08.1992 and had seen one Maruti
car coming from Hotel Dreamland at about 7-30 in the evening.
According to him, 5
to 6 persons alighted from the car and they went to Madhuram Park and they were
armed with weapons. He also informed the court that one person from the car
came to his shop and asked him in Hindi to close his shop and switch off the
light. According to him, pursuant to the threat, he had closed the shop and
heard the noise of firing.
He also deposed that
his statement was recorded by the police on 04.08.1992.
45) Apart from the
above evidence about the dispute between the two group's firing on 03.08.1992,
the evidence of doctors who conducted post-mortem in respect of the deceased
also support the case of prosecution.
46) PWs-20, 21, 22,
23 and 59 all Executive Magistrates, who conducted the Identification Parade of
the some of the accused viz., A-27, A-20, A-3, A-2 and A-1, explained the same
in minute details. They also asserted that procedures were fully followed
before conducting Identification Parade in respect of those accused. Their
statement before the Court cannot be ignored, on the other hand, it supports
the prosecution case about the involvement of accused/Appellants in the firing
that took place on 03.08.1992 at Gymkhana.
47) Though, the
argument was raised that there was no compliance of Rule 15(5) that the
confessions recorded were not sent to the Chief Judicial Magistrate or the
Magistrate having jurisdiction over the area immediately after recording the
same, if we scrutinize the evidence of the recording officers who were all not
below the rank of Superintendent of Police/Dy. Commissioner that after
recording the confessional statements of the accused, particularly, in respect
of A-27 and A-28 in accordance with the mandates of Section 15 and Rule 15,
they were handed over to the Investigating Officers and in turn, to the
concerned Court. As a matter of fact, PW-61, Khushpal Sing Nathulal Doshi, in
his evidence asserted in categorical terms that the confessional statement of
A-29, Aminkhan Mojkhan Pathan that was recorded by him kept in a sealed cover
and sent to the Metropolitan Magistrate. He identified the confessional
statement of the accused during the course of his deposition. If we consider
other relevant acceptable materials which we have discussed in the earlier part
of our judgment coupled with reliable dying declaration recorded by PW-6 and
recovery of pistol as well as revolver and considering the factual aspects of
this case, the objection raised by the appellants with regard to sub-rule (5)
of Rule 15 is to be rejected. Evidence of Shiddharajsing Gulabsing Bhati -
PW-53, Anilsing Kanaksing Jadeja, PW-54, Mohanlal Laxmichand Anal, PW-55,
Natvarsinh Jagatsinh Champavat, PW-57 and Maharajsinh Rajput, PW-58 clearly
prove the purchase of pistol and revolver by Jahangir Marazban Patel, A- 28 at
Ahmedabad who in turn supplied the same to Latif and members of his gang, the
recovery of all those weapons were duly identified by the person concerned.
Further, A-28 purchased the revolver which was used in the commission of
offence from Keval Kishore Sharma of Delhi and the same is reflected in his
confessional statement. Thus the purchase of the weapons and use thereof by
accused concerned were all duly proved by the prosecution.
48) The complaint was
made by one Laxmansingh Madansingh Bhadoria, who lodged FIR about the incident.
Though the
complainant was not examined, however, the prosecution adduced materials in the
form of oral evidence, confessional statements of the accused, documentary
evidence, dying declarations and test identification parade.
From the perusal of
all the materials, we are satisfied that the prosecution has established the
involvement of the accused in the commission of offence, gang rivalry between
Hansraj Trivedi and Latif, their conspiracy to eliminate Hansraj Trivedi,
medical evidence connecting the bullet injuries as cause of death and seizure
of two cars used for the commission of offence. In those circumstances, we are
unable to accept the contentions raised by learned counsel for the appellants
and we are in agreement with the conclusion arrived at by the Designated Court.
49) The materials
placed by the prosecution clearly show that there was a gang rivalry between
the Latif's gang and Hansraj Trivedi. Both the gang leaders with the group
members were engaged in selling liquor in Ahmedabad city when the same is
prohibited. Both the groups were also engaged or involved in forcing people to
vacate the plots and kidnapping etc.
Prosecution has also
proved that the appellants and the other accused persons actively participated
in conspiring and chalking out the plan to eliminate Hansraj Trivedi and other
members of his gang by resorting to firing. By such arrangement, they committed
brutal murder of nine persons and created a terror in the minds of public in
and around the area. All those actions were highlighted before the Designated
Court and by analyzing each and every material and considering the totality of
all the events, the Court found the appellants herein guilty in respect of the
charges and awarded appropriate punishment.
50) Finally, one more
argument was advanced about the award of sentence to Liyakathussein @ Master
Khudabax Shaikh (A-1). The object of awarding appropriate sentence should be to
protect the society and to deter the criminal from achieving the avowed object
to law by imposing appropriate sentence. It is expected that the courts would
operate the sentencing system so as to impose such sentence which reflects the
conscience of the society and the sentencing process has to be stern where it
should be. Any liberal attitude by imposing meager sentences or taking too
sympathetic view merely on account of lapse of time in respect of such offences
will be result-wise counter productive in the long run and against the interest
of society which needs to be cared for and strengthened by string of deterrence
inbuilt in the sentencing system. Justice demands that courts should impose
punishment befitting the crime so that the courts reflect public abhorrence of
the crime. The court must not only keep in view the rights of the victim of the
crime and the society at large while considering the imposition of appropriate
punishment. The court will be failing in its duty if appropriate punishment is
not awarded for a crime which has been committed not only against the
individual victim but also against the society to which both the criminal and
the victim belong. With these principles, it is relevant to note that while
awarding sentence, the learned Designated Judge observed that A-1 was the main
accused in brutally murdering the nine persons who were playing cards in the
Radhika Gymkhana and that was the reason to sentence him with extreme penalty
which would meet the ends of justice. While awarding life imprisonment, the
Designated Judge imposed a condition that it shall not be less than 20 years.
Since it was he who entered the room where Hansraj and others were playing
cards and fired at them along with the absconding accused Sharifkhan killing
total nine persons, we feel it is appropriate and find no ground to modify the
same. The sentence in respect of others is also proportionate to the proved
charges and cannot be claimed as excessive.
51) In the light of
the above discussion, we confirm the conviction and sentence imposed by the
Designated Court. If any of the appellants/accused are on bail, steps shall be
taken by the Court concerned to serve the remaining period of sentence. All the
appeals are, accordingly, dismissed.
......................................CJI
(K.G. BALAKRISHNAN)
..........................................J.
(P. SATHASIVAM)
..........................................J.
(J.M. PANCHAL)
New
Delhi;
May
12, 2009.
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