# ADAMBHAI SULEMANBHAI AJMERI & ORS v. STATE OF GUJARAT

- **Citation:** [2014] 7 S.C.R. 48
- **Court:** Supreme Court of India
- **Decided:** 2014-05-16
- **Case number:** Criminal Appeal Nos. 2295-2296 of 2010
- **Bench:** A. K. Patnaik, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/adambhai-sulemanbhai-ajmeri-ors-v-state-of-gujarat-30183
- **Pages:** 210

## Headnote

Prevention of Terrorism Act, 2002:
s. 3(3), 5, 32, 50 and 52 - Penal Code 1860 - Arms Act,
1959 - s. 25 - Explosive Substances Act, 1908- s. 4 - Code
of Criminal Procedure, 1973 - ss. 164, 162 - Constitution of
India, 1950 - Article 136 - Terrorist attack in Akshardham
temple, Gujarat resulting in death of 33 persons including
0
commandos and injuries to 85 people - Prosecution case
based on some articles received from the head of NSG which
were collected from the clothes of the dead bodies of the
fidayeens including two letters written in urdu language, found
in the pocket of each one of the fidayeens; and car in which
one of the accused allegedly brought fidayaans and weapons
E
to the place of incident - Conviction under the aforesaid Acts
and sentenced to rigorous imprisonment, life imprisonment
and death sentence for the various offences under the Acts
- Upheld by High Court - On appeal, held: Courts below did
F
not examine the evidence with 'more than ordinary care' as
needed under POTA - Courts below perverse in conducting
the case at various stages, right from the investigation level
to the granting of sanction by the State Government to
prosecute the accused persons under POTA - Sanction was
not a valid sanction uls. 50 of POTA -
While recording
G confessional statements statutory mandates laid down u/ss.
32 and 52 of POTA not followed - Confessional statements
of accused persons obtained under torture, highly
contradictory and improbable in nature - Statements of
H
accomplices disclosing evidence of the offences, and the
48
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
49
GUJARAT
connection of the accused persons to the offence, cannot be
A
relied upon to corroborate their confessional statements -
Prosecution case with respect to recovery of the alleged
letters in Urdu from dead bodies of the fidayeens and that
these letters were written by one of the accused, rendered fatal
- Further no evidence apart from the retracted confessional
B
statement of A-6 which connects him to the offence - No
independent evidence on record apart from the confessional
statements recorded by the police, of the accused persons
and the accomplices, to hold them guilty of the crime - Also,
accused cannot be held guilty of criminal conspiracy under c
Section 120-B /PC -
Thus, concurrent findings of fact of
Special Court (POTA) and High Court erroneous in fact as
also in Jaw and fit case for interference u/Art 136 - Order of
conviction and sentence against the accused set aside -
Evidence.
s. 50 - Cognizance of offence - Previous sanction by
Central Government - Compliance of - Held: All the relevant
documents collected during the course of investigation with
respect to the crime required for granting sanction should be
presented before the sanctioning authority so that the
sanction can be granted on basis thereof -
On facts,
sanctioning authority did not apply its mind to the satisfaction
as to whether the instant case required granting of sanction
- Failure of prosecution to prove that sanction was granted
by the Government either on the basis of an informed
decision or on the basis of an independent analysis of fact
on consultation with the Investigating Officer - Clear nonapplication of mind by Home minister in granting sanction -
Thus, sanction void and not a legal and valid sanction uls
50 of the Act.
s. 32 - Procedure for recording of the confessional
statements of the accused persons under - Compliance of
- Held: Police officer recording confessional statements is
required to explain in writing to the accused that he is not
D
E
F
G t
H
50
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A bound to make confessional statement and once such
statement is made, the same can be used against him -
Accused is to be assured that if he does not make the
confessional statement, it would not jeopardize his well-being
while in police custody and also to ensure that such
B statements are made before a competent police officer in a
threat-free environment - On fac

## Text

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A
B
[2014] 7 S.C.R. 48
ADAMBHAI SULEMANBHAI AJMERI & ORS.
v.
STATE OF GUJARAT
(Criminal Appeal Nos. 2295-2296 of 2010)
MAY 16, 2014
[A. K. PATNAIK AND V. GOPALA GOWDA, JJ.]
Prevention of Terrorism Act, 2002:
s. 3(3), 5, 32, 50 and 52 - Penal Code 1860 - Arms Act,
1959 - s. 25 - Explosive Substances Act, 1908- s. 4 - Code
of Criminal Procedure, 1973 - ss. 164, 162 - Constitution of
India, 1950 - Article 136 - Terrorist attack in Akshardham
temple, Gujarat resulting in death of 33 persons including
0
commandos and injuries to 85 people - Prosecution case
based on some articles received from the head of NSG which
were collected from the clothes of the dead bodies of the
fidayeens including two letters written in urdu language, found
in the pocket of each one of the fidayeens; and car in which
one of the accused allegedly brought fidayaans and weapons
E
to the place of incident - Conviction under the aforesaid Acts
and sentenced to rigorous imprisonment, life imprisonment
and death sentence for the various offences under the Acts
- Upheld by High Court - On appeal, held: Courts below did
F
not examine the evidence with 'more than ordinary care' as
needed under POTA - Courts below perverse in conducting
the case at various stages, right from the investigation level
to the granting of sanction by the State Government to
prosecute the accused persons under POTA - Sanction was
not a valid sanction uls. 50 of POTA -
While recording
G confessional statements statutory mandates laid down u/ss.
32 and 52 of POTA not followed - Confessional statements
of accused persons obtained under torture, highly
contradictory and improbable in nature - Statements of
H
accomplices disclosing evidence of the offences, and the
48
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
49
GUJARAT
connection of the accused persons to the offence, cannot be
A
relied upon to corroborate their confessional statements -
Prosecution case with respect to recovery of the alleged
letters in Urdu from dead bodies of the fidayeens and that
these letters were written by one of the accused, rendered fatal
- Further no evidence apart from the retracted confessional
B
statement of A-6 which connects him to the offence - No
independent evidence on record apart from the confessional
statements recorded by the police, of the accused persons
and the accomplices, to hold them guilty of the crime - Also,
accused cannot be held guilty of criminal conspiracy under c
Section 120-B /PC -
Thus, concurrent findings of fact of
Special Court (POTA) and High Court erroneous in fact as
also in Jaw and fit case for interference u/Art 136 - Order of
conviction and sentence against the accused set aside -
Evidence.
s. 50 - Cognizance of offence - Previous sanction by
Central Government - Compliance of - Held: All the relevant
documents collected during the course of investigation with
respect to the crime required for granting sanction should be
presented before the sanctioning authority so that the
sanction can be granted on basis thereof -
On facts,
sanctioning authority did not apply its mind to the satisfaction
as to whether the instant case required granting of sanction
- Failure of prosecution to prove that sanction was granted
by the Government either on the basis of an informed
decision or on the basis of an independent analysis of fact
on consultation with the Investigating Officer - Clear nonapplication of mind by Home minister in granting sanction -
Thus, sanction void and not a legal and valid sanction uls
50 of the Act.
s. 32 - Procedure for recording of the confessional
statements of the accused persons under - Compliance of
- Held: Police officer recording confessional statements is
required to explain in writing to the accused that he is not
D
E
F
G t
H
50
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A bound to make confessional statement and once such
statement is made, the same can be used against him -
Accused is to be assured that if he does not make the
confessional statement, it would not jeopardize his well-being
while in police custody and also to ensure that such
B statements are made before a competent police officer in a
threat-free environment - On facts, process of intimation did
not precede the recording of confessional statements police
officer-DCP as a continuous process - Accused persons were
making confessions after a period almost 11 months after the
C incident - Mere period of 15 minutes was not reasonable time
for reflection on the incident of the attack and their
involvement in the same - Accused who made confessional
statements on the same day, were produced before the Chief
Judicial Magistrate the very next day - CJM had discharged
0
his duty in a callous manner - He recorded statements of the
accused persons all in a period of half an hour which is highly
improbable - Thus, neither the police officer recording the
confessional statements nor CJM followed the statutory
mandates laid down u/ss. 32 and 52 while recording the
confessional statements of the accused persons -
E
Confessional statements made by accused u/s. 32 not
admissible in !aw.
s. 32 - Retracted confessional statements of accused
persons - Evidentiary value - Held: Statements of confession
F of accused persons cannot be relied upon if they are retracted,
unless corroborated by independent evidence - On facts,
prosecution case rests on the confessional statements of
accused persons, accomplices and their evidence and two
Urdu letters purportedly found in the pockets of the trousers
G of the fidayeens and written by A-4 - Subsequently retraction
by accused persons revealing that they were tortured by police
to extract their confessional statement - There is absolutely
no independent evidence on record which corroborates the
confession - Retracted confessional statement of accused
H person cannot be used to corroborate the retracted
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
51
GUJARAT
confessional statement of co-accused - Thus, confessional
A
statements of accused persons cannot be relied upon - Code
of Criminal Procedure, 1973 - ss. 164, 162.
I
Stringent provisions - Caution by Supreme Court -
Held: In view of stringent provisions of POTA and the grave
consequences that misuse of the Act might result in-violation
of right to life and personal liberty, need to ensure that the
guidelines laid down in the Act are rigorously observed while
recording the confessional statements of the accused
persons.
Evidence:
Evidence of the accomplice -
Reliability -
Held:
B
c
Evidence of the accomplice is acceptable - Confessional
statements of accomplices form a very weak form of 0
evidence, to prove the culpability of the accused persons if.
the guilt of the accused cannot be proved, independent of the
statements of the accomplices - Therefore, the same cannot
be used to corroborate the confessional statements of an
accused -
There should be independent evidence to
corroborate the evidence of the accomplice to establish the
culpability of the accused -
On facts, evidence of the
accomplices raises suspicion and conjectures but the same
cannot be construed as legal evidence a_gainst the accused
persons - Prosecution did not make anyeffort to substantiate
E
F
the evidence of the accomplices with independent material
evidence -
Rather, the confessional statements of the
accomplices have been used to corroborate the confessional
statements af the accused persons, in the absence of any
independent evidence - Thus, evidence of the accomplices
cannot be used to corroborate the confessional statements
G
of the accused persons in the absence of independent
evidence and the delay of more than one year in recording
their statements.
Evidence of witness - Reliance upon - Held: Witness
H
52
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A
whose evidence is placed reliance upon by the Court, has to
be examined and questioned during the course of
investigation by the police and his name has to appear in the
chargesheet so that the accused gets a fair chance to cross
examine such witness.
B
Independent evidence - Evidentiary value - Evidence as
regards letters in urdu purportedly recovered from the pockets
of the dead bodies of the fidayeen - Reliance upon - Held:
Letters were. recovered by prosecution witness, a Major from
the bodies of the fidayeens - However, the statement of PWC
91 u/s. 161 Cr.P.C. was not recorded - He could not have
been presented as a chargesheet witness, as his evidence
was recorded for the first time before the Special Court (POTA)
- Further, the Brigadier who had signed the letters was not
examined either u/s. 161 or before the court- Contents of the
D letter nowhere mention the name of the placeJrom where the
fidayeens had allegedly come, as had been mentioned by
PW-91 in his deposition before the Special Court (POTA) -
Further if the statement of Police Inspector of Gandhi Nagar
was taken into consideration, it would mean that no signature
E was made on the back of the letters, and the letters seized
were not kept in sealed covers which increased the chance.
of letters being replaced subsequently - Photographer and
the videographer who recorded the scene of offence were not
examined - Post mortem report of fidayeens stated that all
F
their clothes were stained with blood and mud and all clothes
bore multiple tears and holes due to perforation by bullets -
However, letters remained clean, without any tear, soiling or
stains of blood and soil, rendering them highly unnatural and
improbable - Thus, two letters cannot be taken as evidence
G in order to implicate the accused persons.
H
Independent evidence - Evidentiary value - Prosecution
case establishing involvement of accused persons in Temple
case - Independent evidence against accused persons that
two letters in urdu allegedly found from the pockets of the
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
53
GUJARAT
trousers of the fidayeens were written by A-4 - Reliability ofA
Held: Prosecution case that the Urdu letters were written by
A-4 by only placing reliance upon the opinion of the
handwriting expert - However, certificate of the senior most
official of FSL, Hyderabad on basis of which the handwriting
expert formed his opinion was not admitted on record till a B
much tater stage, after the charge sheet was prepared and
handwriting expert gave his statement before the court - It was
at this stage that his evidence was admitted with protest from
the defence - Handwriting expert in his evidence stated that
he has basic knowledge of Urdu and cannot differentiate c
between Urdu, Arabic and Persian; and that the opinion of
handwriting experts is not conclusive - Thus, the prosecution
failed to establish beyond reasor,3ble doubt that the Urdu
letters were written by A-4.
Independent evidence - Evidentiary value - Prosecution
D
case establishing involvement of accused persons in Temple
case - Independent evidence that in the blue ambassador car
accused allegedly brought the fidayeens and the weapons to
place of incident -
Reliance upon - Held: neither the
panchnama nor seizure memo of the car made during its
E
· 91/eged seizure - However, courts below without verifying the
contents of the panchnama and the seizure memo of the car,
admitted the involvement of the car in evidence on record,
merely on the basis of the subsequent panchna'ma drawn by
the G,μjarat police on which no weightage can be given -
F
Prosecution failed to prove that car was used by accused to
carry weapons from Jammu and Kashmir to Bareilly for
carrying out the attack on Akshardham - Thus, no evidence
apart from the retracted confessional statement of A-6 to
connect him to the offence.
G
Defence witness - Evidentiary value - Held: Equal
weightage should be given to the defence witnesses as that
of the prosecution witnesses - It erred in not given the same
weightage to the defence witnesses as they have to the
H
54
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A prosecution witnesses.
Penal Code, 1860 - s. 1208 - Criminal conspiracy -
Offence of - Essential ingredients - Held: There should be
some common object to be achieved and an agreement by
accused persons to achieve that object -
Individual
B conspirator need not know the entire sequence of the chain
and events - Limited knowledge is sufficient -On facts, it
cannot be said that conspiracy was hatched by accused
persons in furtherance of some common object, to take
revenge for Godhra Riots - Each accused claims to have
C complete knowledge of conspiracy, while contradicting the
other's version of the same events to constitute the act of
criminal conspiracy - None of the events of the alleged
criminal conspiracy was supported by independent evidence
that inspires confidence to uphold the conviction and
D sentences meted out to the accused persons -
Thus,
prosecution failed to prove beyond reasonable doubt, the guilt
against the accused persons, for the offence of criminal
conspiracy u/s. 120-8 of the Code.
E
The instant case is with regard to the terrorist attack
which took place on Akshardham temple, Gandhinagar,
Gujarat. The appellants-accused were convicted for the
said terrorist attack between the afternoon of 24.09.2002
and early morning of 25.09.2002 resulting in death of 33
people including commandos and injuries to more than
F 85 people including 23 police officers and jawans and
sentenced to rigorous imprisonment, life imprisonment
and death sentence for the offences punishable under
the provisions of the Penal Code 1860; Arms Act, 1959;
Explosive Substances Act, 1908 and the Prevention of
G Terrorism Act, 2002 by the Special Court (POTA).
On the fateful day around 4.30 pm, two persons
armed with AK-56 rifles, hand grenades entered the
precincts of the Akshardham temple and fired
H indiscriminately towards the children, worshippers,
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
55
GUJARAT
devotees, volunteers and visitors, women and others and A
threw hand grenades on them, resulting in killing and
injuring them. Police officers were called at the place of
offence. The terrorists (fidayeens) once again started
firing. A fierce gun battle ensued and there was also a
bomb blast. National Security Guards took control of the
B
situation at about ,12.00 at midnight. They began counter
attack against the fidayeens. Exchange of firing continued
for 5 hours, till the early hours of the next day and both
the terrorist were killed. The two fidayeens carried large
quantity of fire arms and explosive substances. Some c
explosives were seized along with other articles from the
premises. Then PW 126, ACP 'GLS' lodged a complaint
and registered an FIR for the offences under ss. 120-8,
302, 307, 153A, 451 IPC against unknown persons aged
20-25 years. Investigation was handed over to PW-119,
0
Police Inspector 'VR'. Prosecution case was that some
articles were received from Brigadier 'RS', head of NSG
which were collected from the clothes of the dead bodies
of the fidayeens including two letters written in urdu
language, found in the pocket of each one of the
fidayeens. Investigation started but 10 could not trace the
E
accused persons. Almost a year later, investigation of the
case was transferred to PW-126. The next day A1 to AS
were arrested. The prosecution alleged that the criminal
conspiracy was hatched at Saudi Arabia, Hyderabad,
Ahemdabad and Jammu and Kashmir by some clerics
F
and few others after the incidents of Godhra riots.
Subsequently, A-6 was taken into custody. Investigation
was concluded and charge sheet was filed against all the
six accused persons, after obtaining necessaiy sanction
order as required u/s 50 of POTA from the State G
Government. 26 persons were shown as absconding
accused. PW-78, SP recorded the confessional statement
as provided u/s. 32 of the POTA by following the
mandatory procedure. Out of 376 witnesses shown in the
H
56
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A chargesheet, 126 witnesses were examined. The Special
Court (POTA) convicted all the accused persons and
sentenced A-2, A-4 and A-6 to death, A-3 to life
imprisonment, A-1 to rigorous imprisonment for 5 years
and A-5 to rigorous imprisonment for 10 years. The High
B Court upheld the order passed by the Special Court
(POTA). Hence, the instant appeals.
The questions which arose for consideration are:
1. Whether sanction given by the State Government
c
is in compliance with Section 50 of POTA?
D
E
F
G
H
2. Whether the confessional statements of the
accused persons were recorded as per the
procedure laid down in Section 32 of POTA, CrPC
and the principles laid down by this Court?
3. Whether the statements of the accomplices
disclosing evidence of the offences, and the
connection of the accused persons to the offence,
can be relied upon to corroborate their confessional
statements?
4. Whether the two letters in Urdu which have been
translated in English, were found from the pockets
of the trousers of the fidayeens who were killed in the
attack?
5. Whether the letters allegedly found from the
pockets of the trousers of the fidayeens were written
by A-4?
6. Whether there is any evidence apart from the
retracted confessional statement of A-6 which
connects him to the offence?
7. Whether there is any independent evidence on
record apart from the confessional statements
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
57
GUJARAT
recorded by the police, of the accused persons and A
the accomplices, to hold them guilty of the crime?
8. Whether A-2 to A-6 are guilty of criminal
conspiracy under Section 120-B IPC?
9. Whether the concurrent findings of the courts B
below on the guilt of the accused persons can be
interfered with by this Court in exercise of its
appellate jurisdiction under Article 136 of the
Constitution?
Allowing the appeals, the Court
c
HELD: 1. Accused persons are innocent with respect
to the charges leveled against them. The judgment and
order of the Special Court (POTA) and the impugned
judgment and order of the High Court along with Criminal o
Appeal Nos. 1675 of 2006 and 1328 of 2006 are set aside.
Consequently, the sentences of death awarded to A-2, A4 and A-6, life imprisonment awarded to A-3, 10 years of
1 rigorous imprisonment awarded to A-5 are set aside.
Since all the accused are acquitted and also, since A-1
E
was convicted and sentenced on the basis of the same
evidence which has already rejected, A-1 who is not in
appeal before this Court, is acquitted of the conviction
and sentence awarded to him by the courts below,
exercising the power of this Court under Article 142 of the
F
Constitution and hold him not guilty of the charges
framed against him though ~ has already served his
sentence and he is absolved ofthe stigma he is carrying
of that of a convict. [Para 135) [256-F-H; 257-A-C]
2.1. All the relevant documents required for granting G
sanction shall be presented before the sanctioning
authority so that the sanction can be granted on the
basis of relevant material information and documents
collected during the course of investigation with respect
to the crime. [Para 75) [139-B-C]
H
58
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A
Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat
(1997) 7 SCC 744:1997 (3) Suppl. SCR 356; Anirudhsinhji
Karansinhji Jadeja and Anr. v. State of Gujarat (1995) 5 SCC
302:1995 (2) Suppl. SCR 637 - referred to.
8
2.2. PW-88, Principal Secretary, Home Department
deposed that PW-126, ACP 'GLS' had forwarded to him
the relevant documents-Patrak A and Patrak B details of
arrests of all the six accused, for the purpose of deciding
whether it was a fit case for granting sanction under
Section 50 of Prevention of Terrorism Act, 2002. He had
C reiterated that he had perused all these documents,
especially Patrak-A, which contained the details of the
two Urdu letters and the opinion of the handwriting expert
from the FSL and Patrak B, the contents of which were
not mentioned in his statement, and also the details of the
D arrest of the accused persons. But glaringly, PW-88
stated that he had not enquired about whether there were
any investigation papers regarding the involvement of A6 in the crime by the Crime Branch, Ahmedabad, at
Jammu and Kashmir. This aspect is important as he had
E stated that he had no knowledge of whether the custody
of A-6 was taken in accordance with due process of law.
He further stated that he had verified the case papers and
had satisfied himself that Section 52 of POTA had been
complied with completely but in the very next sentence,
F
he stated that there were no papers suggesting
compliance of section 52 of POTA in the bunch of papers
sent to him. Thus, it is clear from the statement of PW-88
that he was an important part of the process of granting
sanction under POTA and could throw light on the
G aspects taken into consideration while granting sanction.
He was the only prosecution witness who was examined
by the court in this regard and it is apparent that he had
not applied his mind for the same, which is clearly visible
from the inherent contradictions in his statement. [Para
H 74] [136-C; 138-B-F,H; 139-A-B]
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
59
GUJARAT
2.3. It was the Deputy Secretary, Law and Order who A
had signed the document of sanction issued in the name
of the Governor. However, he was not examined by the
Court. On the other hand, PW-88 was examined.
Therefore, the statement of PW-88 is examined, since he
formed the only link in the Home Ministry of State of B
Gujarat and could enlighten the facts and information
which were taken into consideration by him while
granting sanction. While deposing before the Special
Court (POTA), PW-88 stated that he had not discussed
anything with the Home Minister regarding the grant of c
sanction and the Minister had simply signed the
proposed note as a mark of approval. PW-88 further
stated that he had not discussed anything with the 1.0
about granting sanction. However, the Special Court
(POTA) erroneously justified the granting of sanction on 0
the ground that the counsel for A-2 and A-4 before the
Special Court (POTA), did not insist on examination of the
.internal note and at no stage was such a request made
in writing. [Para 75] [142-F-H; 143-A-B]
Mansukh/a/ Vitha/das Chauhan v. State of Gujarat (1997)
E
7 SCC 622: 1997 (3) Suppl. SCR 705 - referred to.
2.4. The instant case does not show that the
sanctioning authority had applied its mind to the
satisfaction as to whether the instant case required
granting of sanction. The prosecution failed to prove that F
the sanction was granted by the government either on the
basis of an informed decision or on the basis of an
independent analysis of fact on consultation with the
Investigating Officer. This would go to show clear nonapplication of mind by the Home Minister in granting G
sanction. Therefore, the sanction is void on the ground of
non-application of mind and is not a legal and valid
sanction under Section 50 of POTA. [Para 77] [143-H; 144A-C]
H
60
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A
3.1. The provisions of a Special Act prevail over the
provisions of General Act. Since the constitutionality of
the POTA was declared as valid by this Court, its
provisions would prevail over CrPC. However,
considering the stringency of the provisions of POTA and
B the grave consequences that misuse of the Act might
carry i.e, violation of right to life and personal liberty, there
is need to ensure that the guidelines laid down in the Act
are rigorously observed while recording the confessional
statements of the accused persons. [Para 79] [150-G-H;
c 151-A-B]
Peoples Union of Civil Liberties v. Union of India (2004)
9 SCC 580: 2003 (6) Suppl. SCR 860 - referred to.
3.2. On perusal of the evidence on record, stark
0
discrepancies is found in the manner in which the
statements of the accomplices and those of the accused
persons were recorded. While the statements of the
accomplices' namely-PW-SO, PW-51 and PW-52 were
preceded by written records of cautions in the same
E document, the confessional statements of the accused
persons do not show such caution. [Para 80] [151-E-G]
3.3. Reverting to the requirement of Section 32, the
police officer recording the confessional statements is
required to explain in writing to the accused that he is not
F bound to make confessional statement and once such
statement is made, the same can be used against him.
Further, it is imperative that the accused is assured that
if he does not make the confessional statement, it would
not jeopardize his well-being while in police custody and
G also to ensure that such statements are made before a
competent police officer in a threat-free environment. The
deposition of the police officer PW-78-DCP who had
recorded the confessional statements of the accused
persons how~ver, reflects otherwise. He admitted that he
H
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
61
GUJARAT
did not assure the accused persons that not making the A
confessional statement will not put them in adverse
position. [Para 84, 85] [60-F-H; 61-A-B]
3.4. Two exhibits-the letter of intimation and the
statements of confession, in the case of each of the B
accused persons, are of the same day. The intimation
letters of caution written by PW-78 failed to prove that the
process of intima~ion preceded the recording of
confessional statements as a continuous process. There
is nothing available on record to show that reasonable
reflection time was given to the accused persons before C
making the confessional statements, though the
prosecution claimed to have given them 15 minutes as
reflection period. The amount of time to be given for
reflection before confession depends on the facts and
circumstances of the case, it is imperative to bear in mind D
that in the instant case, the accused persons were
making confessions after a period almost 11 months after
the incident. Thus, a mere period of 15 minutes does not
appear to be reasonable time for reflection on the incident
of the attack and their involvement in the same. Therefore, E
PW-78, who recorded their confessional statements, did
not give enough time to the accused persons to record
their confessional statements, since they were making
confessions after 11 months of the incident. [Para 82, 85]
[155-C; 159-F-G; 160-A-C]
F
State of Rajasthan v. Ajit Singh & Ors. (2008) 1 SCC 601:
2007 (11) SCR 251; Ranjit Singh v. State of Punjab (2002) 8
SCC 73:2002 (2) Suppl. SCR 247 - referred to.
3.5. Since A-2 and A-4 made confessional statements G
on the same day, they were produced before the PW-99,
CJM the very next day. PW-99, CJM had discharged his
duty in a callous manner. From the statements of the PW99, it can be inferred that he was able to record the
statement of the accused persons, read it over to them H
62
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A and enquire about any coercion and torture, all in a period
of half an hour. It is highly improbable that a confessional
statement running to more than 15 pages could be read
back to them within half an hour. From the statement of
PW-99 on examination in chief and also on cross
s examination, it is clear that he did not enquire about the
basic compliances he was required to make himself
aware of, to ensure fair investigation against the accused
persons. His conduct in recording of statement under
Section 32(5) of POTA merely resembles that of a passive
C reluctant officer involved in some procedural formality.
[Para 86] [164-D-E; 165-C-E]
3.6. While POTA makes a departure from Cr.P.C. in
that it makes confessional statements made before a
police officer admissible, the procedural safeguards
D therein are not a mechanical formality. On the other hand,
it should be able to inspire confidence to show that the
procedure has been scrupulously followed while
recording confessional statements particularly because
'o,f the grave consequences which follow such
E statements, which might result in deprivation of life and
personal liberty of the person, which is a fundamental
right guaranteed by the Constitution that can be taken
away only by following the procedure established by law.
Therefore, it is incumbent upon the CJM to strictly and
F scrupulously follow all the statutory procedural
safeguards provided for under Section 32 of POTA. [Para
87] [165-F-H; 166-A]
3.7. The other statutory mandate under Section 32 of
POTA is that the person making the confessional
G statement shall be produced for medical examination and
thereafter, be sent to judicial custody after the CJM
records the si.atement of the accused person. The
question which arises for consideration is whether this
mandate is operative only if the accused makes a
H complaint of torture before the CJM or whether the CJM
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
63
GUJARAT
is duty bound to send the accused persons to judicial A
custody as a statutory requirement after recording the
statement. It was contended by the accused persons that
they were subjected to physical torture by the police
before the confessional statements were recorded and
that they were also kept in police custody in the B
intervening night between being produced before the
CJM and being sent to Judicial Custody. Therefore,
though they were subjected to torture, they could not
make a complaint before the CJM due to fear and
apprehension, since they were taken back to police C
custody after their statements were recorded. The
counsel for the accused persons, argued that Section
32(5) unambiguously declares that the accused shall be
sent to judicial custody after the recording of the
confessional statements, whereas the counsel for the D
prosecution contended that the accused must be sent for
medical examination only if there is a complaint of torture
and only in that case, must he be sent to judicial custody.
The argument of the counsel for the prosecution cannot
be accepted. The use of the phrase, 'shall be sent to E
judicial custody' after confession is a mandatory
requirement in comparison to the use of an alternative
term 'may' which gives discretionary power to the CJM.
[Para 88] (166-8-F]
3.8. Apart from Section 32 of POTA, Section 52 also
F
lays down certain guidelines which are to be strictly
adhered to while recording the confessional statements
of an accused person under Section 32. Therefore,
neither the police officer recording the confessional
statements nor the CJM followed the statutory mandates G
laid down in POTA under Sections 32 and 52 while
recording the confessional statements of the accused
persons, and thus, the confessional statements made by
A-2, A-3, A-4 and A-6 under Section 32 of POT A are not
admissible in law. [Para 89, 90] (169-D; 177-H; 178-A-B]
H
64
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A
Hardeep Singh Saha/ & Ors. v. State of Punjab through
CBI (2004) 11 sec 612:2004 (4) Suppl. SCR 783;
Mohammad Ajmal Mohammad Amir Kasab Alias Abu
Mujahid v. State of Maharashtra (2012) 9 SCC 1 :2012 (8)
SCR 295; State (NCT of Delhi) v. Navjot Sandhu (2005) 11
B SCC 600: 2005 (2) Suppl. SCR 79 - referred to.
4.1. The evidence of the accomplice is not
acceptable. [Para 93)
Haroom Haji Abdulla v. State of Maharashtra AIR 1968
c SC 832: 1968 SCR 641; Ravinder Singh v. State of Haryanal
(1975) 3 SCC 742: 1975 (3) SCR 453; Mrinal Das & Ors. v.
State of Tripura (2011) 9 SCC 479: 2011 (14) SCR 411 -
referred to.
4.2. PW-50 stated in his deposition about watching
D videos of riots and killing of Muslims in Gujarat in the
house of A-3 at Riyadh, which act, by itself does not
constitute a criminal offence. On being asked during the
cross examination before the Special Court (POTA) if the
money donated by the gathering in Saudi Arabia to A-3,
E was used for running the relief camps in Gujarat, he was
not able to answer for what purpose exactly the money
was collected. Therefore, at the most, even if his evidence
is taken to be true for the sake of argument, some
suspicion, if at all, can be cast on the involvement of A-3
F
in some sort of illegal activity at the most. But culpability'
of a person in as grievous an offence as this, cannot be
premised on mere suspicion without knowledge of the
nature of the illegal activity. [Para 93] [189-D-G]
4.3. The evidence of PW-51 was not reliable because
G according to his evidence, it was reported to him by A-2
that the fidayeens had arrived from Hyderabad which
contradicts the claim of the prosecution; and A-2 did not
state anything beyond the alleged arrival of the fidayeens
which cannot be connected to the event of attack on
H
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
65
GUJARAT
Akshardham beyond reasonable doubt. It again, merely
A
arouse suspicion about the involvement of A-2 and the
passive approval of A-4 and A-5 in the incident. [Para 94]
[189-H; 190-A]
B
4.4. With respect to PW-52, other than the fact that he
mentioned about A-2 telling him that they are planning a
'carnage' and that some 'guests' have arrived, no other
detail was provided by PW-52 in his evidence. A-6 had not
been mentioned at all in the evidence of any of the
accomplices. Therefore, the twin test to establish the
credibility of the guilt of the accused persons based on
C
the evidence of the accomplices, fails miserably. [Para 94]
[190-B-C]
4.5. A perusal of the evidence of all the three
accomplices PW-50, PW-51, PW-52 shows that all of them o
intended to absolve themselves of the liability for the
conspiracy with respect to the attack on Akshardham,
going as far to mention that they were not involved in the
incident and only the accused persons knew about the
intricate details of the chain of events that ultimately led
E
to the execution of their plan of 'carnage'. Even then, if it
is presumed that the accomplices have implicated
themselves by mentioning that they were aware about
some incident which was about to happen and thus, were
part of the criminal conspiracy, the evidence of the
accomplices fail the second test, in that it fails to prove the
guilt of the accused persons beyond reasonable doubt.
F
All the three accomplices mentioned about the plan of
'carnage' which the accused persons had planned
together. However, no link could be established between
the accused persons and the attack on Akshardham since
G
the evidence of the accomplices is far too vague and they ..
fail to provide any form of substantive evidence against
the accused persons. [Para 93] [188-A-D]
Mohd. Husain Umar Kochra Etc. v. K. S. Dalipsinghji & H
66
SUPREME COURT REPORTS
[2014] 7 S.C.R.
A Anr. Etc. (1969) 3 SCC 429:1969 (3) SCR 130; Vijay Kumar
Arora v. State(Govt. of NCT of Delhi (2010) 2 SCC 353:2010
(1 ) SCR 1069 - referred to.
4.6. The evidence of the accomplices at the most,
8 raises suspicion and conjectures but the same cannot be
construed as legal evidence against the accused
persons, relying solely on which they can be convicted,
as has been done by the courts below. Moreover, it is a
settled principle of law that the confessional statements
of accomplices form a very weak form of evidence, to
C prove the culpability of the accused persons if the guilt
of the accused cannot be proved, independent of the
statements of the accomplices. Therefore, the same
cannot be used to corroborate the confessional
statements of an accused. Instead, there shoulcl be
D independent evidence to corroborate the evidence of the
accomplice to establish the culpability of the accused.
[Para 95] [191-D-G]
I
Kashmira Sing/1 v State of Madhya Pradesh AIR 1952 1
E SC 159: 1952 SCR 526 - relied on.
~
4.7. In the instant case, the prosecution did not make
any effort to substantiate the evidence of the accomplices
with independent material evidence. Rather, the
confessional statements of the accomplices have been
F used to corroborate the confessional statements of the
accused persons, in the absence of any independent
evidence. But, apart from all these aspects on the
statements of the accomplices, it is feared that the story
against the accused persons and its corroboration
•.J through the statements of accomplices is an act of
concoction to make up a case against them. It was
recorded in the statement of PW-126 that the information
regarding PW-50 was given to him by 'DGV'. However,
'DGV' had not even been examined in this case and there
is no information as to how he came to know about PWH
ADAMBHAI SULEMANBHAI AJMERI v. STATE OF
67
GUJARAT
50 after almost a year of the attack on Akshardham. This
A
very important aspect of the lapse in investigation was
ignored by the courts below. There is an inordinate delay
in recording of the statements of the accomplices and
this casts a grave suspicion on the reliability of the
testimony of the accomplices. [Para 96] [194-H; 195-A-D]
B
State of Andhra Pradesh v. S. Swamalatha & Ors. (2009)
8 SCC 383: 2009 (12) SCR 289 - referred to.
4.8. The statement made by PW-51 during the cross
examination leads to the conclusion that there was a c
serious attempt on the part of the investigating agency
to fabricate a case against the accused persons and
frame them with the help of the statements of the
accomplices, since they had not been able to solve the
case even after almost a year of the incidence. Thus, the
0
evidence of the accomplices cannot be used to
corroborate the confessional statements of the accused
persons in the absence of independent evidence and the
delay of more than one year in recording their statements
causes this Court to disregard their evidence. [Para 96,
E
97] [199-E-G]
5.1. A witness, whose evidence is placed reliance
upon by the Court, has to be examined and questioned
during the course of investigation by the police and his
name has to appear in the chargesheet so that the
accused gets a fair chance to cross examine such
witness. [Para 99] [203-D-E]
Ram Lakhan Singh & Ors. v. State of Uttar Pradesh
(1977) 3 SCC 268: 1978 (1) SCR 125 - referred to.
5.2. The two Urdu letters were mentioned for the first
time in the list of Muddammal articles collected from the
fidayeens by PW-91 Major 'JL' and handed over to PW126, ACP by Panchnama drawn up for the same. Further,
F
G
the receipt voucher of articles recovered from the body
H
S
r
68
UPREME COURT REPORTS
[2014] 7 S.C.R.
A of the fidayeens and handed over to the 1.0. by PW-91
merely makes a mention of 'handwritten letters in Urdu'.
The FIR mentioned about the seizure of some articles
from the body of the fidayeens which were mentioned in
the list handed over by PW-91 to PW-126. It was
B imperative therefore, on the part of the prosecution to
ensure that Brigadier 'S' was required to be examined
before the Court so as to prove that he signed on the
letters and they were the same letters recovered by PW91, Maj. 'JL'from the bodies of the fidayeens. Otherwise,
C the absence of such evidence adversely affects the case
of the prosecution. However, the statement of PW-91
under Section 161 CrPC was not recorded. The
necessary implication of this is that he could not have
been presented as a chargesheet witness, as his
evidence was recorded for the first time before the
D Special Court (POTA). and his statement under Section
161 CrPC was not taken by the 1.0. However, Brigadier
'S', who is the most important witness for proving the
recovery of the alleged letters from the pockets of the
trousers of the fidayeens, was not examined either under
E Section 161 or before the Court. [Para 98, 99] [199-H; 200A-C; 202-G-H; 203-A-C]
5.3. To determine if they are the same letters which
were alleged to be recovered from the pockets of the
F trousers of the fidayeens, the deposition of PW 121, the
translator of the urdu letters before the Special Court
(POTA) is to be examined. There is no inclination to
accept any of the contradictory versions of either of the
parties. The poor translation of the documents from
G Gujarati language to English submitted by both the
parties caused inconvenience. [Para 99, 100] [204-C;
206-C]
H
5.4. The contents of the letter nowhere mention the
name of the place 'Atok' in Pakistan from where the
ADAMBHAI SULEMANBHAI AJMERI v.