# ANR v. STATE OF GUJARAT

- **Citation:** [2009] 8 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 2009-05-12
- **Case number:** Criminal Appeal Nos. 2-5 of 2003
- **Bench:** K.G. Balakrishnan, P. Sathasivam, J.M: Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anr-v-state-of-gujarat-26077
- **Pages:** 43

## Headnote

-
PENAL CODE, 1860:
c
Section 320 r/w 120-B - Murder -
Conviction and
sentence by designated court relying on confessional
statements, dying declaration and other materials -
Correctness of - Held: Correct - Conviction and sentence
+·
confirmed - TADA Act, Section 5, 15 - Arms Act, Section
D
25(1)(b), 27.
TADA ACT, 1987:
Section 15 - Confession statement under - Recording
of - Procedure and safeguards - Discussed - On facts Held:
E
All the confession statements reliable and Designated Court
..
rightly relied on them .
~
SENTENCING:
Principles governing sen_tencing - Discussed - On facts,
F
Held: Sentence awarded by Designated Court appropriate -
No ground to modify the same.
The designated court has convicted the accusedappellants under s.302 r/w 120-8 IPC, Sections 25{1){c) G
of the Arms Act and Section 5 of the TADA Act and
sentenced them under different counts of punishment
including life imprisonment. In the appeal against the
abovesaid order, the main contention was that conviction
719
H
720
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A based on confessional statements of the appellants
without any corroborative evidence is not sustainable.
Dismissing the appeals, the Court
HELD:1.1. This Court has carefully perused and
B verified the confessional statemen!s. 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
C 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
D 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. [Para 22] (744-F-H; 745-AE C]
1.2. 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
F the same on 03.08.1992 in the premises of Radhika
Gymkhana Club. [Para 23] [745-C-D]
1.3. TADA Act, being a special Act, which permits
recording of confessional statement by a police officer
G 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
H same. [Para 24] (7 45-0-E]
AHMED HUSSEIN VALi MOHAMMED SAIYED &
721
ANR. v. STATE OF GUJARAT
,,''" -\
Kartar Singh vs. State of Punjab, (1994) 3 SCC 569,
A
'
relied on.
2.1. The confession made by an accused if it is
voluntary and true, then it is admissible against coaccused as a substantive piece of evidence. It is also 8
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 c
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 D
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. It is true that in the case of
confessional statements, though signature o

## Text

_Characters 0–39,912 of 86,808. This is a partial read: ask again with offset=39912 for what follows._

r
[2009] 8 S.C.R. 719
-·- -1
AHMED HUSSEIN VALi MOHAMMED SAIYED & ANR.
A
'·
v .
..
STATE OF GUJARAT
(Criminal Appeal Nos. 2-5 of 2003)
MAY 12, 2009
8
.i i-
[K.G. BALAKRISHNAN, CJI. AND P. SATHASIVAM AND
J.M: PANCHAL, JJ.]
-
PENAL CODE, 1860:
c
Section 320 r/w 120-B - Murder -
Conviction and
sentence by designated court relying on confessional
statements, dying declaration and other materials -
Correctness of - Held: Correct - Conviction and sentence
+·
confirmed - TADA Act, Section 5, 15 - Arms Act, Section
D
25(1)(b), 27.
TADA ACT, 1987:
Section 15 - Confession statement under - Recording
of - Procedure and safeguards - Discussed - On facts Held:
E
All the confession statements reliable and Designated Court
..
rightly relied on them .
~
SENTENCING:
Principles governing sen_tencing - Discussed - On facts,
F
Held: Sentence awarded by Designated Court appropriate -
No ground to modify the same.
The designated court has convicted the accusedappellants under s.302 r/w 120-8 IPC, Sections 25{1){c) G
of the Arms Act and Section 5 of the TADA Act and
sentenced them under different counts of punishment
including life imprisonment. In the appeal against the
abovesaid order, the main contention was that conviction
719
H
720
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A based on confessional statements of the appellants
without any corroborative evidence is not sustainable.
Dismissing the appeals, the Court
HELD:1.1. This Court has carefully perused and
B verified the confessional statemen!s. 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
C 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
D 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. [Para 22] (744-F-H; 745-AE C]
1.2. 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
F the same on 03.08.1992 in the premises of Radhika
Gymkhana Club. [Para 23] [745-C-D]
1.3. TADA Act, being a special Act, which permits
recording of confessional statement by a police officer
G 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
H same. [Para 24] (7 45-0-E]
AHMED HUSSEIN VALi MOHAMMED SAIYED &
721
ANR. v. STATE OF GUJARAT
,,''" -\
Kartar Singh vs. State of Punjab, (1994) 3 SCC 569,
A
'
relied on.
2.1. The confession made by an accused if it is
voluntary and true, then it is admissible against coaccused as a substantive piece of evidence. It is also 8
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 c
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 D
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. It is true that in the case of
confessional statements, though signature of the
E
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, the
officers - PWs 25, 26, 49 & 51 who recorded their
statement deposed before the Court, identified and
F
explained the course adopted while recording their
statement as well as contents therein. (Para 26) (747-CH; 748-A-C]
2.2. In order to show that the confessional statements
G
of a number of accused persons irrespective of separate
certificate are valid, the prosecution has examined the
respective competent officers who were authorized to
record confessional statements which satisfied sub-rule
(3) of Rule 15. [Para 27] (748-C-D]
H
722
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A
2.3. All the recording officers have deposed in the
~ . .,
trial with all the relevant facts and the question of
tampering with the confessional statements can be done
away with accordingly as has been rightly done by the
Designated Court. [Para 34] [753-8-C]
B
2.4. 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 Latirs Gang and Hansraj Trivedi,
c plotting of the criminal conspiracy by the members of
Latifs gang, the details of the activities made by the Latirs
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
D
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
E 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. [Para
F 35] [753-C-G]
Kartar Singh vs. State of Punjab, (1994) 3 SCC 569 and
State [through Superintendent of Police, CBI/SIT] vs. Nalini,
(1999) 5 sec 253 - relied on.
G
Bharatbhai vs. State of Gujarat, (2002) 8 SCC 447 and
State of Rajasthan v. Ajit singh, (2008) 1 SCC 601, referred
to.
3. According to PW6 after .making the statement
H
AHMED HUSSEIN VALi MOHAMMED SAIYED &
723
ANR. v. STATE OF GUJARAT
..,._ -\
Badshahkhan became unconscious. Though this dying
A
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
B
recorded the dying declaration as narrated by the
~
deceased. If the prosecution had been out to implicate all
' ..
accused falsely in the case, the dying declaration would
have been so recorded. However, the evidence of PW-6
shows that he stopped recording dying declaration as c
soon as he realized that the maker was losing
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. [Para 37] [755-A-D]
D
4.1.Apart from confessional statement of the
accused, the prosecution had also relied on various other
witnesses and the Designated Court has rightly accepted
the same. [Para 39] [756-B-C]
E
4.2. If one considers the other relevant acceptable
materials 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 subF
rule (5) of Rule 15 is to be rejected. Evidence of PW-53,
PW-54, PW-55, PW-57 and PW-58 clearly prove the
purchase of pistol and revotver by 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 G
identified by the person concerned. Further, A-28
~
purchased the revolver which was used in the
' 1
commission of offence from Keval Kishore Sharma of
i
Delhi and the same is reflectetl in his confessional
statement. Thus the purchase of the weapons and use
H
724
SUPREME COURT REPORTS
(2009] 8 S.C.R.
thereof by accused concerned were all duly proved by
/.- -
A
the prosecution. [Para 47] [759-C-F]
4.3. Though the complainant was not examined,
however, the prosecution adduced materials in the form
B of oral evidence, confessional statements of the accused,
documentary evidence, dying declarations and test
identification parade. From the perusal of all the
~
materials, this Court is satisfied that the prosecution has
.. '
established the involvement of the accused in the
c
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. [Para 48] [759-G-H; 760-A-B]
D
4.4. The materials placed by the prosecution clearly
show that there. was a gang rivalry between the Latifs
gang and Hansraj Trivedi. Both the gang leaders with the
group members were engaged in selling liquor in
Ahmadabad city when the same is prohibited. Both the
E 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
>
F 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
G 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. [Para 49] [760-B-E]
"
5. It is expected that the courts would operate the
/
H
AHMED HUSSEIN VALi MOHAMMED SAIYED &
725
ANR. v. STATE OF GUJARAT
sentencing system so as to impose such sentence which
A
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
B
productive in the long run and against the interest of
J ~
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 c
abhorrence of the crime. The court must not only keep
in view the rights of the victim of the crime md 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
D
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
Designated Judge observed that A-1 was the main
E
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
F
was he who entered the room where Hansraj and others
were playing cards and fired at them along with the
absconding accused Sharifkhan killing nine persons, it
is appropriate and there is no ground to modify the same.
The sentence in respect of others is also proportionate G
~ to the proved charges and cannot be claimed as
excessive. [Para 50) [760-G-H; 761-A-F]
Case Law Reference:
(1994) 3 sec 569
relied on
Para 11
H
A
B
c
726
SUPREME COURT REPORTS
[2009] 8 S.C.R.
(2002) s sec 447
{1999) 5 sec 253
(2008) 1 sec 601
referred to
relied on
referred to
Para 25
Para 26
Para 36
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
-
Nos. 2-5 of 2003.
From the Judgment & Order dated 21.10.2002 of the
Designated Judge Court No. 3 at Ahmedabad in TADA Case
Nos. 8/1993, 144/1993, 2/1996 and 4/1996.
WITH
Crl. A. Nos.13-14, 216-217, & 8-11 of 2003.
Sushil Kumar, Nity·a Ramakrishnan, Trideep Pais, Nikhil
D Nayyar, R.P. Wadhwani, Kamini Jaiswal, Shomila Bakshi,
Sudhir Nandrajog, Saahila Lamba, Sanjay Jain, Noor Mohd.
Shaikh, Aditya Kumar, Anmol Thakral and Vinay Arora for the
Appellants.
E
Yashank Adhyaru, Hemantika Wahi, Pinky Behara and
Somnatha Padhan for the Respondents.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. (1) All the above appeals were filed
F 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
G learned Judge convicted the appellants under Section 302 read
with Section 120-8 l.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.
H
)
AHMED HUSSEIN VALi MOHAMMED SAIYED &
727
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.}
..._ ;\
(2) The brief facts leading to the filing of the present
A
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
B
Mojkhan and lmtiyaz 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. c
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
D
on the witnesses Vrujlal and Moha.n 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
E
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
F
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 l.P.C.,
G
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
H
728
SUPREME COURT REPORTS
[2009) 8 S.C.R.
A filed the above appeals before this Court.
(3) Heard Mr. Sushi! Kumar, learned senior counsel, Ms.
Nitya Ramakrishnan and Ms. Kamini Jaiswal learned counsel,
appearing for the appellants/accused, Mr. Yashank Adhyaru,
8 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
C 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
D 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
E 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
)-
F 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.
(5) On the other hand, learned senior counsel appearing
G for the State while supporting the conviction and sentence
imposed by the Designated Court submitted that, though, in
'r'-
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
H
'
AHMED HUSSEIN VALi MOHAMMED SAIYED &
729
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.]
•
A
the accused and the defect, if any, is cured. He pointed out that
A
,.
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
B
several other acceptable materials in support of their charge.
,.>
'>t
(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 c
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
D
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-5£1. All the
E
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 gan.Qs in the sale of liquor. Because of this gang rivalry of
Hansraj with Abdul Latif and the members of his gang, the
F
enmity developed between two of them and in furtherance of
conspiracy hatched initially, in the afternoon of 03.08.1992,
Abdul Latifs gang went to the office of Hansraj but Hansraj was
not available there, therefore, the members of Abdul Latifs gang
returned to Madh's Mahalia, Dariapur. Thereafter, again in the
evening, Abdul Latif received an information that Hansraj and
G
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
H
730
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A 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
B persons. Two persons of the Abdul Latifs 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
c 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
D 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.
E 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
F unlawful assembly, the charge under Section 148 of IPC was
also framed against them. In TADA Case Nos. 2 and 4of1996,
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 welt as under Section 25(1)(c) and Section 27 of the Arms
G 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
H and Sections 23(1)(c) and 27 of the Arms Act. They were also
....
·~
...
)
AHMED HUSSEIN VALi MOHAMMED SAIYED &
731
--~"'
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.)
charged with Section 148 of the IPC. In TADA Case No. 38 of A
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 I PC
and Section 5 of the TADA Act and Sections 25(1)(b) and 27
B
of the Arms Act.
;~ ....
(8) After framing the charges as mentioned above, joint
trial was held and the evidence was recorded in TADA Case
No. 8 of 1993.
c
(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 D
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 E
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:
F
Provided that co-accused, abettor or conspirator is
charged and tried in the same case together with the
accused.
(2) The polic-e officer shall, before recording any G
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,
H
A
B
c
D
E
F
G
732
SUPREME COURT REPORTS
[2009] 8 S.C.R.
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.
(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.
~ule 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 libarty 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
H
hand that such confession was taken in his presence and
... ~ ......
f'
j'
IF
r
...
AHMED HUSSEIN VALi MOHAMMED SAIYED &
733
ANR v. STATE OF GUJARAT [P. SATHASIVAM, J.]
~ .~
.J
recorded by him and that the record contains a full and true
A
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:-
"I have explained to (name) that he is not bound to
B
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 c
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 D
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
E
his presence shall also be recorded in the
mechanical device at the end of the confession.
A
(5)
Every confession recorded under the said Section
15 shall be sent forthwith to the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate having
F
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."
G
-<,._,
(11) Tile provisions of the TADA Act, more particularly,
Section 15 and Rule 15 were considered by a Constitution
Bench of this Court in Karlar Singh vs. State of Punjab, ( 1994)
3 SCC 569. After holding that the TADA Act is constitutionally
H
734
SUPREME COURT REPORTS
[2009] 8 S.C.R.
•·
A 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
B fundamental fairness:
"(1) The confession should be recorded in a free
r
atmosphere in the same language in which the person is
f
examined and as narrated by him;
c
(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
D
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
E
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;
F
(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
G
offence punishable under this Act of 1987.
This is necessary in view of the drastic provisions of this
~-..4 ......
Act, more so when the Prevention of Corruption Act, 1988
under Section 17 and the Immoral Traffic Prevention Act,
H
1956 under Section 13, authorize only a police officer of
AHMED HUSSEIN VALi MOHAMMED SAIYED &
735
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.]
j!.,
a specified rank to investigate the offences under those
A
"
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
B
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 c
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."
~
D
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
E
'
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
F
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:
G
---;._.•--,11
H
736
SUPREME COURT REPORTS
[2009] 8 S.C.R.
A S.No.
Crl. A. No.
Name of the appellanUAccused
1.
No.2-5 of 2003
Ahmed Hussein Vali
(Tada Case 8/93,
Mohammed Saiyed (AS)
144/93, 2/96 and
Tajammulhasan Ali Hasan
B
4/96)
Ansari (A27)
2.
No. 8-11 of 2003
Liyakat Hussein @ Master
(Tada Case 8/93,
Khudabax Shaikh (A 1)
144/93, 2/96 and
Mohammed Taqlim @ Kalu Md.
4/96)
Umar Shaikh [A2]
c
Jawedkhan @ Jaeed Azizkhan
Pathan [A3]
Musarrafkhan Gorekhan Pathan
(A14]
D
3.
No.13-14 of 2003
Jahangir Mazarban Patel [A28]
(TaTada Ca (Tada
Case No. 2/96 &
4/96
E
4.
No.216-217 of 200~1 Abdul Khurdush Abdulgani
(Tada Case 8/93 &
Shaikh [A20]
144/93
F 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
G 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,
H
-
... -
..
AHMED HUSSEIN VALi MOHAMMcD SAIYED &
737
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.]
21,22,23,24 and 29 for which they were charged. Though
A
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 (A 1)
8
2.
Jawedkhan @ Jaeed Azizkhan Pathan [A3]
3.
Tajammulhasan Ali Hasan Ansari (A27)
4.
Mohammed ·raqlim @ Kalu Md. Umar Shaikh [A2] c
5.
Abdul Khurdush Abdulgani Shaikh [A20]
6.
Jahangir Mazarban Patel [A28]
Here again, before going into the veracity and acceptability 0
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
E
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
F
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
G
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
H
738
SUPREME COURT REPORTS
(2009] 8 S.C.R.
A 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
B 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.
c
(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
D 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,
E 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
~
F 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 lsharaq Pahelvan
who was known to Sabbu Haji. He used to sell empty plastic
bags which remained at the liquor den. He also explained about
G 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
H information to Abdul Latif. On the date when Hansraj Trivedi
,,...
AHMED HUSSEIN VALi MOHAMMED SAIYED &
739
ANR. v. STATE OF GUJARAT [P. SATHASIVAM, J.]
...
>
was murdered, first he went to Hansraj Trivedi's office at 4 'o'
A
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
B
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 c
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
D
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
E
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 stat~ment F
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
G
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
H
740
SUPREME COURT REPORTS
[2009] 8 S.C.R.
.(
~
A 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 Kish.ore Sharma, an Arms and
B 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
,,
lll
statement was signed by him and necessary certificate has
been appended by the. Competent Officer.
c
(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.