# CENTRAL BUREAU OF INVESTIGATION & ANR v. MOHD. PARVEZ ABDUL KAYUUM ETC

- **Citation:** [2019] 8 S.C.R. 439
- **Court:** Supreme Court of India
- **Decided:** 2019-07-05
- **Case number:** Criminal Appeal Nos.140-151 of 2012
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/central-bureau-of-investigation-anr-v-mohd-parvez-abdul-kayuum-etc-34070
- **Pages:** 186

## Headnote

Penal Code, 1860:
ss. 120B, 302, 307, 201/120B - ss. 25(1)(B)(a), 27(1) and 5
of Arms Act, 1959 - s. 3(1), (2), (3) and (4) and s.4 of Prevention of
Terrorism Act, 2002 (POTA)- Murder and attempt to murder - In
two different incidents - Investigation by CBI - In investigation
found that both incidents were part of same transaction and in
pursuance of common conspiracy with the motive to spread terror
among Hindu community after post-Godhra riots - 4 accused
absconded - Trial of 12 accused - Conviction by trial court -
Appeal before High Court by accused as well as CBI - However, no
appeal was filed by CBI against A-2, A-3 and A-12 - High Court
set aside the conviction u/s. 302/120B IPC and s. 3(1) of POTA
against all the accused, while upholding conviction under rest of
the provisions - High Court also reduced the sentence imposed on
A-2 - Appeal to Supreme Court - Held: There is ample evidence as
to conspiracy leading to attempt of murder of PW-39 and fatal attack
on the deceased - Testimony of the eye-witness is reliable and is
amply corroborated by medical evidence - High Court adopted
hyper-technical approach in assessing the evidence of the eyewitness and was moved by minor discrepancies which do not go to
the heart of the matter and shake basic version of prosecution case
- Prosecution case is also proved by forensic evidence -
Call-records of the accused and recovery of the vehicle used for
the offence and the weapon of offence also support prosecution
case - Confessional statements made by the accused,which have
been recorded after due compliance of s. 32, as well as of s. 52 of
POTA also proves involvement of each and every accused in the
criminal conspiracy - The confessional statements have been duly
corroborated by other evidence - Conviction and sentence of A-1,
A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 u/ss. 3(1), (2) and (3) of
[2019] 8 S.C.R. 439
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SUPREME COURT REPORTS
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POTA and s. 302 r/w s. 120B IPC is restored - So far as A-2, A-3
and A-12 are concerned, no further interference is required and
their appeals are dismissed.
s. 174A - Absconded accused - Prosecution for the charges
of murder and attempt to murder under the provisions of IPC and
POTA - Also prosecuted u/s. 174A - Trial court convicted him u/s.
174A and acquitted him of all the charges giving him benefit of
doubt - High Court modified the sentence by imposing fine of Rs.
21 lakhs with default clause - Appeal to Supreme Court - Held:
Trial court rightly extended benefit of doubt to the accused - Since
the accused has already served sentence of 17 months and also
paid the fine, no interference is required.
Prevention of Terrorism Act, 2002:
s. 32 - Confessional statement - Safeguards provided under
- Discussed.
Evidence:
Medical evidence and ocular evidence - Inconsistency
between - Effect of - Held: In case of such inconsistency, ocular
evidence will prevail - Ocular evidence can be discarded only when
the medical evidence completely improbablises the ocular evidence.
Book - Evidentiary value - Held: Opinion of a person is not
in the realm of the evidence - The opinion in the book may be based
upon surmises, conjectures and suppositions and hence has no
evidentiary value.
Newspapers and magazine reports - Evidentiary value - Held:
Reports in the Newspapers and Magazines do not constitute
evidence - A statement in the Newspaper is merely a heresay and
therefore inadmissible in evidence in absence of maker of the
statement deposing in court to have perceived the fact reported.
Constitution of India:
Art. 32 - Writ petition/PIL - By an organization - Seeking
further investigation in a criminal/murder case - On the basis that
the High Court had acquitted the accused in the criminal case
doubting the investigation - Propriety and maintainability of - Held:
PIL was filed when the criminal case was being heard in the Supreme
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Court - It is apparent that the accused persons were inst

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CENTRAL BUREAU OF INVESTIGATION & ANR.
v.
MOHD. PARVEZ ABDUL KAYUUM ETC.
(Criminal Appeal Nos.140-151 of 2012)
JULY 05, 2019
 [ARUN MISHRA AND VINEET SARAN, JJ.]
Penal Code, 1860:
ss. 120B, 302, 307, 201/120B - ss. 25(1)(B)(a), 27(1) and 5
of Arms Act, 1959 - s. 3(1), (2), (3) and (4) and s.4 of Prevention of
Terrorism Act, 2002 (POTA)- Murder and attempt to murder - In
two different incidents - Investigation by CBI - In investigation
found that both incidents were part of same transaction and in
pursuance of common conspiracy with the motive to spread terror
among Hindu community after post-Godhra riots - 4 accused
absconded - Trial of 12 accused - Conviction by trial court -
Appeal before High Court by accused as well as CBI - However, no
appeal was filed by CBI against A-2, A-3 and A-12 - High Court
set aside the conviction u/s. 302/120B IPC and s. 3(1) of POTA
against all the accused, while upholding conviction under rest of
the provisions - High Court also reduced the sentence imposed on
A-2 - Appeal to Supreme Court - Held: There is ample evidence as
to conspiracy leading to attempt of murder of PW-39 and fatal attack
on the deceased - Testimony of the eye-witness is reliable and is
amply corroborated by medical evidence - High Court adopted
hyper-technical approach in assessing the evidence of the eyewitness and was moved by minor discrepancies which do not go to
the heart of the matter and shake basic version of prosecution case
- Prosecution case is also proved by forensic evidence -
Call-records of the accused and recovery of the vehicle used for
the offence and the weapon of offence also support prosecution
case - Confessional statements made by the accused,which have
been recorded after due compliance of s. 32, as well as of s. 52 of
POTA also proves involvement of each and every accused in the
criminal conspiracy - The confessional statements have been duly
corroborated by other evidence - Conviction and sentence of A-1,
A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 u/ss. 3(1), (2) and (3) of
[2019] 8 S.C.R. 439
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SUPREME COURT REPORTS
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POTA and s. 302 r/w s. 120B IPC is restored - So far as A-2, A-3
and A-12 are concerned, no further interference is required and
their appeals are dismissed.
s. 174A - Absconded accused - Prosecution for the charges
of murder and attempt to murder under the provisions of IPC and
POTA - Also prosecuted u/s. 174A - Trial court convicted him u/s.
174A and acquitted him of all the charges giving him benefit of
doubt - High Court modified the sentence by imposing fine of Rs.
21 lakhs with default clause - Appeal to Supreme Court - Held:
Trial court rightly extended benefit of doubt to the accused - Since
the accused has already served sentence of 17 months and also
paid the fine, no interference is required.
Prevention of Terrorism Act, 2002:
s. 32 - Confessional statement - Safeguards provided under
- Discussed.
Evidence:
Medical evidence and ocular evidence - Inconsistency
between - Effect of - Held: In case of such inconsistency, ocular
evidence will prevail - Ocular evidence can be discarded only when
the medical evidence completely improbablises the ocular evidence.
Book - Evidentiary value - Held: Opinion of a person is not
in the realm of the evidence - The opinion in the book may be based
upon surmises, conjectures and suppositions and hence has no
evidentiary value.
Newspapers and magazine reports - Evidentiary value - Held:
Reports in the Newspapers and Magazines do not constitute
evidence - A statement in the Newspaper is merely a heresay and
therefore inadmissible in evidence in absence of maker of the
statement deposing in court to have perceived the fact reported.
Constitution of India:
Art. 32 - Writ petition/PIL - By an organization - Seeking
further investigation in a criminal/murder case - On the basis that
the High Court had acquitted the accused in the criminal case
doubting the investigation - Propriety and maintainability of - Held:
PIL was filed when the criminal case was being heard in the Supreme
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Court - It is apparent that the accused persons were instrumental
in filing the PIL - The appropriate course would have been an
application seeking further or re-investigation by the persons
concerned or by the writ petitioner - The motive for filing the PIL
was oblique, improper and against discipline and it is clearly misuse
of forum of PIL - Even on merit there is no material or ground
worthy to direct further investigation or re-investigation in the case
- The writ petition is dismissed with cost of Rs.50,000/-.
Public Interest Litigation:
Scope of - Held: Public Interest Litigation cannot be filed
for personal gain or political motive or any oblique consideration
- Unnecessary interference in criminal case against prosecution at
times may cause serious prejudice to the accused also.
Advocates:
Professional ethics - Rule of Professional ethics framed by
Bar Council of India - Part VI, Chapter II, Section I, r. 8 -
Prohibition for advocate to represent the organization/institution
of which the advocate is Executive Member -Appearance of
advocate in the Court, in defiance of such Rule, would amount to
professional misconduct.
Dismissing Criminal Appeal Nos. 141, 147 and 148 of 2012,
Criminal Appeal Nos. 981, 982 and 983 of 2019, Writ Petition
(Criminal) No. 26 of 2019 and disposing of rest of the appeals,
the Court
HELD: 1. The evidence has been adduced in the case as to
the conspiracy which leads to attempt to murder of PW-39 and
thereafter fatal attack on the deceased. Accused are associated
with it up to the murder and finally to the escape of the assailants
after the murder. The evidence evinces training in Pakistan, the
various meetings at Masjids, etc. of various accused persons from
time to time. There is evidence of confessional statements of
convicts, communication over e-mail, seizure of documentary
literature at the time of arrest, there is also evidence of providing
logistical support and other various types of facilitation, providing
money by cash or cheque in respect of accommodation, rent,
transportation at Ahmedabad as well as at other places. Evidence
is also available with respect to providing mobile phones,
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transportation, and providing of motorcycles, etc. On the basis
of the confessional statement, recoveries and seizures had been
made as per the disclosure statements including the seizure of
computer hard discs from Cyber Cafes. There is the recovery of
documentary evidence also, passenger books proved by hotel
caterers, PC owners and opinion of handwriting experts. There
is direct and circumstantial evidence as to the involvement of
other accused with A-1 in the commission of attempt to murder
of PW-39 and murder of the deceased. There is evidence of doing
a recce of the Law Garden which used to be frequented by the
deceased for taking morning walks, mobile calls bear the time of
the fatal attack by the accused persons on the deceased. Besides
the mobile tower location of the mobile phone and data of
telephone use even shortly before and after the attack on PW-39
as well as on deceased. [Para 15][483-F-H; 484-A-D]
State v. Nalini (1999) 5 SCC 253 : [1999] 3 SCR 1 ;
Yakub Abdul Razak Memon v. State of Maharashtra
(2013) 13 SCC 1 : [2013] 15 SCR 1 - referred to.
'Commentary on Penal Law of India' by Hari Singh
Gour (Vol. 2), 11th Edn. 1138 - referred to.
2.1 In view of the evidence on record, the statement made
by PW-55, the direction of causing of injury No. 7 is fully explained
and an eye witness cannot be said to state all these details with
mathematical precision. Corroborating evidence is available in
abundance. [Para 48] [509-C]
Sukhdeep Singh v. State of Uttar Pradesh and Anr.
(2010) 2 SCC 177 : [2009] 15 SCR 1252
- referred to.
2.2 As to the precise distance inch-wise position at the time
of firing, there is no witness who can give an exact description as
suggested in a lengthy cross-examination. Lengthy crossexamination on this line was wholly uncalled for and wholly
unnecessary and witness is not supposed to furnish all such details
with precision. Though the witness has withstood the test of crossexamination. It is not a case where medical evidence completely
improbabilises the ocular evidence only on that case the ocular
evidence has to be discarded not otherwise. [Paras 49-50]
[509-D-F]
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Abdul Sayeed v. State of Madhya Pradesh (2010) 10
SCC 259 : [2010] 13 SCR 311 ; State of Rajasthan v.
Bhanwar Singh (2004) 13 SCC 147 : [2004] 4 Suppl.
SCR 409 - relied on.
Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,
A.P., (2007) 15 SCC 465 : [2007] 10 SCR 347 ;
Shingara Singh v. State of Haryana & Anr. (2003) 12
SCC 758 ; Ram Narain Singh v. State of Punjab
(1975) 4 SCC 497 : [1976] 1 SCR 27 - referred to.
2.3 It is not correct to say that number of injuries of the
bullet, is not matching with the number of injuries found. There
were 7 gunshot wounds whereas 5 bullets were recovered from
the body of the deceased. 5 bullet injuries were caused as
suggested by ocular evidence of PW-55 and also by medical
evidence that 5 bullets were found as injury Nos.5 and 6 were
communicating injuries leading ultimately to injury No.1. Thus,
there is no inconsistency rather ocular evidence is fortified by
the medical evidence. [Para 39] [505-D-E]
Rachhpal Singh and Anr. v. State of Punjab AIR 2002
SC 2710 - referred to.
"A Colour Atlas of Human Anatomy"; "Gray's
Anatomy" and Modi's jurisprudence- referred to.
2.4 In the instant case, the ocular evidence of PW-55 is not
discredited by the medical evidence. In case of any discrepancy
between the ocular or medical evidence, the ocular evidence shall
prevail. [Para 57] [515-B-C]
Yogesh Singh v. Mahabeer Singh & Ors. (2017) 11 SCC
195 : [2016] 7 SCR 713 ; Sunil Kundu & Anr. v. State
of Jharkhand (2013) 4 SCC 422 : [2013] 5 SCR
924; Bastiram v. State of Rajasthan (2014) 5 SCC
398 : [2014] 2 SCR 567 - relied on.
Ram Narain Singh v. State of Punjab (1975) 4 SCC
497 : [1976] 1 SCR 27 ; State of Haryana v. Ram
Singh (2002) 2 SCC 426 : [2002] 1 SCR 208 -
distinguished.
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2.5 The High Court has observed that negligible blood was
found near the driver's seat. The clothes of the deceased bore
tell-tale signs of profuse bleeding from injuries on his neck and
fore-arm and mobile phone and keys lying under the seat had
stains of blood. Thus, it is apparent that there was blood on the
seat as well as on the mobile phone and keys which were lying on
the floor. As eye witness has clearly stated the position where he
was. He has been cross-examined at length, blood on cloth was
found, how much, where it was found is not going to discredit the
ocular version and an entire incident. [Paras 64 -65] [518-D-E]
2.6 It is not correct to say that since the FIR was not lodged
by PW-55, his conduct does not inspire confidence and he was
not an eye-witness. PW-55 had gone to inform the factum of the
incident to the owner of Chitty Bang, CW-1. It is not uncommon
for a person to react in the manner PW-55 has done. He first
wanted to inform the owner of the place as to the murder. He was
not a literate person. CW-1 has also supported the version of
PW-55, the narration of incident to CW-1 by PW-55 is quite natural
and inspires confidence and there is due corroboration of the
version by CW-1. In the circumstances, non-production of the
person who had simply given the lift in a rickshaw to PW-55 and
has taken him to the house of CW-1, does not cause any dent in
the prosecution version. Merely on the ground of non-examination
of another witness the deposition of PW-55 cannot be discarded.
By the time PW-55 came back to the spot police had already
arrived and the body of the deceased was taken in another vehicle
to the hospital. PW-55 or CW-1 had no ill-will or malice against
the accused. It does not make any difference whether CW-1 was
examined as a court witness or as a prosecution witness. Once a
witness has been examined, his evidentiary value has to be
considered in accordance with the law. Once he has been examined
no question to draw any adverse inference against the prosecution
arises. [Para 70, 71] [519G-H; 520-A-E]
2.7 There is no embellishment or material improvement in
the court's statement as compared to the one recorded under
section 161 Cr.P.C. The question of whether CW-1 had asked
PW-55 whether he was speaking the truth and omission of that in
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the statement under section 161 cannot be said to be a material
omission. Material facts have been stated in the statement and
there is no contradiction with respect to the material facts with
the statement under section 161 Cr.P.C. as to the approximation
of time also nothing can be made out by the accused.
[Para 72] [520-G-H; 521-A]
2.8 PW-55's deposition cannot be discredited or tainted
in any manner by faulty preparation of sketch. Even otherwise
the evidence of sketch is not of much significance. Sometime the
sketch may not tally with the version given by a witness. The
High Court is moved by sketch which was drawn. PW-55 denied
any knowledge of such a sketch. The sketch was not put to PW55 in the cross-examination and to obtain his explanation whether
it tallied with the assailant. In the absence of cross-examination
of PW-55 on this aspect, the defence cannot take any advantage
of a discrepancy, if any. I.O. PW-120 has stated that the sketch
was prepared in the absence of PW-55. It was drawn only on the
basis of his statement recorded under section 161 Cr.PC. The
way in which sketch was drawn, it cannot be considered reliable
and trustworthy sketch. In the circumstances, sketch in the
reference of the accused ought not to have weighed with the High
Court because it was prepared in the absence of PW-55.
[Para 75-76] [521-G-H; 522-A-B]
2.9 In view of the identification made by the witness in the
test identification parade, no dent is caused by the so-called
sketch in the ocular evidence of PW-55. Considering the intricate
nature of the investigation, there was no undue delay in holding
the T.I.P. It was held after 20 days of the arrest of the accused.
The accused had been identified in the same. (PW-39) also, later
on, had rightly identified A-1 as the assailant. [Para 77] [522-CD]
Subash and Shiv Shankar v. State of U.P. (1987) 3 SCC
331 : [1987] 2 SCR 962 - distinguished.
2.10 It is the duty of the High Court to examine the details
of the intrinsic merit of the evidence of eye-witnesses. The High
Court has adopted hyper-technical approach in assessing the
evidence of PW 55 and has been moved by minor discrepancies
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which do not go to heart of the matter and shake the basic version
of the prosecution witness. [Para 78] [522-F; 523-A-B]
State of U.P. v. Sahai & Ors. AIR 1981 SC 1442 ;
Vijay @ Chinee v. State of M.P. (2010) 8 SCC 191 :
[2010] 8 SCR 1150 ; Bhajan Singh @ Harbhajan Singh
& Ors. v. State of Haryana [2011] 7 SCR 1 -
relied on.
3.1 The plea was that bullet recovered was not sent for
ballistic examination and bullets produced in court differ in colour
and the state of deformation recorded during post mortem.
However, it is clear that it was not put to the doctor that the
bullets which were produced in the court, were not the same
which he has recovered. As a matter of fact, the doctor has clearly
opined that white bullets were seized and they were sent for
ballistic examination and they have been produced from the CFSL.
It was necessary to put in the cross-examination of PW-8 the fact
that the bullets which were produced in court were not the same
which were recovered at the time of post mortem, which has not
been done. Thus his testimony cannot be discredited on this
aspect. [Paras 80-82] [523-G-H; 524-A]
3.2 PW-75, the Forensic Expert has stated that 5 shots
were fired from a single standard weapon. He compared the seals.
The bullets were fired from a .32 revolver. [Para 82] [524-B]
3.3 The prosecution has successfully established the chain
of seizure of five very bullets up to production in court which
were recovered from the body of the deceased. PW-8 has stated
that during autopsy five bullets were recovered from the body of
the deceased which was handed over to the police constable
(PW-170) in a sealed condition. PW-170 a constable on duty has
stated that he received five bullets in the sealed condition and
has handed over the sealed five bullets to police inspector in the
presence of panch-witness, PW-2. Further, evidence of PW-101
indicates that he has handed over five bullets recovered from
the body of the deceased to PW-107 who during the course of the
investigation had handed over the same to PW120 on 28.3.2003.
The evidence further discloses that PW-120, Dy. S.P., forwarded
the said five bullets vide letter dated 4.4.2001 in the sealed
condition to V.S.G.H./EBAB/Forensic Medicine through Director,
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CFSL, New Delhi vide letter dated 25.4.2004. Exh.442 is the
document of receipts by which five bullets were sent to Central
Forensic Science Laboratory, New Delhi with seal intact and
specimen. Exh.458 points out that blood found on the five bullets,
kurta pyjama and lifted from the car was of 'B' Group. Thus, it is
apparent that the seals have been found intact and there is positive
evidence of the custody of the appellants. Thus, it is far-fetched
and intentional for the defence to contend that bullets have been
changed. [Para 84] [524-E-H; 525-A-B]
3.4 PW-75 has clearly stated that all the bullets were
received in sealed condition from CFSL, New Delhi. He has also
identified articles 18/1 to 18/5 in the seal applied on the back
side of Khakhi cover which is stated to be muddamal article 18/5
which is the seal he had applied. He has stated that he has
examined articles 18/1 to 18/5 of which he has given the details.
He has further stated in his examination that the bullets were of
blackish grey colour but the one with a jacket would have copper
or aluminum colour. If the bullet is of white metal then the metal
would be made of steel or aluminium but he has not seen nor
examined the white coloured jacket bullet. Thus, it is clear that
what has been produced in the court are the same articles which
were examined by the forensic expert (PW-75). [Para 85]
[525-F-G]
3.5 Even in the absence of the Chemical test of the clothes,
the evidence conclusively establishes that the revolver was used
in the offence for firing the bullets in question and that has been
proved to be a weapon of the offence and recovered too.
[Para 86] [525-B]
3.6 The act of disclosure of the weapon and its discovery
at the instance of A-1 and the bullets found in the body of the
deceased was sent to CFSL, New Delhi wherein it has been
opined that they have been fired with the standard weapon
(revolver of .32 bore), which had been recovered. [Para 93]
[528-B]
3.7 The evidence of DW-8 also makes it clear that breach
face alone is sufficient to confirm the opinion if they are found to
be repetitive and also of repetitive character of the striations
which are due to an individual firearm can be related to a particular
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firearm. In the present case, while ignoring the difference caused
by tampering of the firing pin found the second time, the basic
striation marks remain the same which is individual for every
revolver and is not to be found in any other such weapon. Thus,
the evidence is conclusive to prove that the revolver in question
was used in firing the bullets recovered from the body of the
deceased. The medical evidence, thus, supports the version of
PW-55. [Para 97] [528-G-H; 529-A-B]
3.8 PW-8 who prepared the post mortem report has been
discarded while relying upon the version of defence witness
DW-6, who had stated that injuries 5 and 6 as communicating
injuries. The autopsy doctor's report cannot be discarded lightly
as he had seen the injuries. [Para 98] [529-B-C]
Tanviben Pankajkumar Divetia v. State of Gujarat,
(1997) 7 SCC 156 : [1997] 1 Suppl. SCR 96;
Eshwaraiah & Anr. v. State of Karnataka, (1994) 2 SCC
677 : [1994] 1 SCR 387 - relied on.
4. The site map was sought to be discredited by High Court
on the basis that PW-120, I.O. of CBI gave a contradictory reply.
He said that the original spot map was drawn by pencil and later
on drawn in ink. It was clearly stated that at the time of re-drawing
the same, later on, the name of A1 was mentioned as it was known
by that time. No dent is caused by the said mentioning of the
name of the accused and from the explanation given by PW-120,
it is apparent that the name has been added later on.
[Para 100][530-E-F]
5. No dent is caused by non-examination of wife of the
deceased and other persons as they were not the eye-witnesses.
In case of any doubt, they could have been examined as defence
witnesses. Wife of the deceased even if examined, would have
proved the fact that deceased left for the Garden at around 7 a.m.
and he would have reached there around 7.10 a.m. No benefit
can be drawn from the aforesaid aspect. No adverse inference
can be drawn against prosecution due to the non-examination.
[Para 102] [531-D-E]
6. The trial court has extensively dealt with the mobile
phone, sim card details and the evidence adduced to prove the
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usage of the said phone handsets and sim cards by the accused
persons. All call records of the accused persons during the entire
period of conspiracy and the tower location of the phones of the
accused persons near the Law Garden on the day of the murder
of the deceased are the strong circumstantial evidence against
the accused persons. The accused persons were in possession
of mobile phones and were in constant touch with each other
before, during and after the commission of the crime through
their mobile or landline phones, as depicted in the call details
records, in order to execute the conspiracy. [Para 103]
[531-F-G; 532-B]
7. The motorbike used by A-1 and A-6 at the time of the
commission of the offence was duly recovered. A-10 purchased
the motorcycle from PW-54 and gave it to A-1 in the first week of
February 2003 for his movements in Ahmedabad. After the
commission of a crime, the motorcycle was handed over by A-10
to PW-45 while fleeing from Ahmedabad and thereafter PW-45
parked the same in the parking of Railway Station from where
the same was recovered by CBI in presence of PW-24. On the
directions of A-13, PW-57 (hostile witness but statement under
section 164 Cr.PC had arranged 3 stolen motor Hero Honda
motorcycles and handed over the same to A-4. Thereafter, A4
retained one with him and handed over one each to A-14 and
A-5. Later on, these motorcycles were used in the commission
of a crime. One of the stolen motorcycles was handed over by
A-10 to PW-45 while fleeing from Ahmedabad. PW-45 parked
the same in Theatre and later on brought by PS Kagdapeeth from
where it was seized by CBI on the pointing of PW-45. A fake
number plate was got prepared by A-7 and A-8 from PW-52. This
number plate was put on the second Hero Honda motorcycle after
the commission of a crime. The said motorcycle was abandoned
by A-10 and A-11 while fleeing from Ahmedabad. [Para 104]
[532-C-H; 533-A]
8. Spot map would be admissible so far as it indicates all
that the Inspector saw himself at the spot. Any mark put on the
spot map on the basis of statements made by the witness to the
Inspector would be inadmissible in view of the clear provisions
of section 162 Cr.P.C. Even if the witnesses are not reflected in
the site plan, that does not bar the prosecution to produce such
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witnesses during the trial. Since PW-55 has not been confronted
with the site plan and no question had been asked to the witness,
thus his ocular evidence cannot be discredited on the basis of
the aforesaid omission. [Paras 106, 107] [533-E-F; 534-G-H]
Tori Singh & Anr. v. State of U.P., AIR 1962 SC 399 :
[1962] SCR 589 ; Pratap Singh & Anr. v. State of M.P.
(2005) 13 SCC 624 : [2005] 5 Suppl. SCR 439 -
relied on.
9. The High Court has also employed the reason that Police
Inspector PW-101 was supposed to be investigating at 2 p.m. on
26.3.2003 at the scene of the offence, while he was shown present
at post mortem at 2.15 p.m. PW-101 in this regard has explained
that he handed over the papers to Head Constable. Post Mortem
might have been made at 2.15 p.m. but he was not present in the
post mortem room at that time. The statement of the witnesses
ought to have prevailed as to his presence on the spot.
[Para 108] [535-A-B]
10. The High Court has observed that voluminous records
and number of controversies about each piece of evidence, was
not necessary to be dealt with. It could not be said to be the
proper approach of the High Court. The High Court ought to
have examined the entire background as to what facts and
circumstances prevailed and whether the chain was complete to
make out the case of conspiracy. It was absolutely necessary so
as to find out the conspiracy. The acquittal recorded by the High
Court was wholly uncalled for and is based on basically a wrong
approach. It was incumbent upon the High Court to come a close
quarter of reasoning employed by the trial Court and assessment
of the evidence of the witnesses done by the trial court with great
care, in an elaborate manner. The High Court has failed to consider
the reasons and has jumped to the conclusion. [Para 111]
[535-F-H; 536-A]
11.1 The confession of the accused persons recorded under
section 32 of Prevention of Terrorism Act, 2002 (POTA) proves
the involvement of each and every accused person in the criminal
conspiracy. Section 32 of the POTA contains a non-obstante clause
like notwithstanding anything in the Criminal Procedure Code
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or in the Evidence Act and makes admissible certain confessions
made to the Police Officers. However, the same is subject to the
provisions of section 32. [Paras 112, 113] [536-B-D]
11.2 The safeguards provided in the provisions contained
in section 32 of the Act are (i) Confession to be made by the
person before a Police Officer not lower in rank than a
Superintendent of Police. (ii) It has to be recorded either in writing
or on any mechanical or electronic device like cassettes, tapes
or soundtracks. (iii) The Police Officer before recording
confession has to appraise the accused in writing that he is not
bound to make a confession and in case he makes it, the same
may be used against him. (iv) That accused shall not be compelled
to make any confession. (v)
The confession shall be recorded
in an atmosphere free from threat or inducement. (vi) Confession
to recorded in the same language in which it is made. (vii) The
person who has confessed shall be produced before the court of
Chief Metropolitan Magistrate or CJM along with the recorded
confession within 48 hours. (viii) The CMM/CJM shall record
the statement, if any, made by the person so produced and get
his signature or thumb impression on it. If there is any complaint
of torture by such a person, he shall be referred for medical
examination to an Assistant Civil Surgeon or any officer higher
in rank. (ix) The person shall be sent to judicial custody and not
to police custody. [Para 114] [537-C-H; 538-A]
11.3 It is apparent from the facts of the case that the
provisions of section 32(1), (2) and (3) of POTA have been
complied with. The accused was produced before the Special
Magistrate for CBI. An application was also filed under section
32(4) of the POTA for producing accused. It was mentioned that
the confessional statement has been made by the accused
voluntarily without fear, threat or inducement while recorded by
the SP, CBI, ACP. The Magistrate has asked the accused
whether he was ill-treated or tortured by the CBI while in custody
recording confessional statement to which he replied in the
negative. He further stated that he has voluntarily made the
confessional statement. On that, he was sent to judicial custody
till 4.7.2003. A similar process has been followed while recording
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the confessional statement of accused persons by PW-21 under
section 32 of POTA. [Paras 121, 122 and 123] [543-F-H; 544-A]
11.4 Safeguards have been provided in various provisions
made in section 32. The notable safeguards which were lacking
in TADA are to be found in sub-sections (4) and (5). Ordinarily
the person should be sent to judicial custody. In exceptional cases,
police custody can be granted and not otherwise. Non-compliance
with usual custody requirement does not per se vitiate the
confession. In the instant case, the accused persons have been
sent to judicial custody and the provisions of section 32 have
been complied with in pith and substance. [Para 125] [546-C-D]
State (NCT of Delhi) v. Navjot Sandhu etc.(2005) 11
SCC 600 : [2005] 2 Suppl. SCR 79 - relied on.
11.5 Section 32(4) requires that the person whose
confession has been recorded to be produced before the
Magistrate along with an ordinary statement of confession within
48 hours. The Magistrate shall record the statement, if any, made
by the person so produced and get his signatures or thumb
impression. If there is any complaint of torture then medical
examination has to be ordered and thereafter he shall be sent to
judicial custody. In the present case, the Magistrate has recorded
the statement made by the accused and has obtained the
signatures. The Magistrate has clearly enquired whether he was
ill-treated or tortured by the CBI while in custody, for recording
a confessional statement to which he replied in the negative. The
accused was asked what he wanted to say to which he responded
that he made a voluntary confessional statement. Then he was
remanded to judicial custody. In view of the fact that the officer of
the rank of S.P. has duly recorded that he has read over the
statement and the accused has admitted it to be correct, as in
due compliance with the provisions of section 32, so it was not
necessary for the Magistrate to read over the same again to the
accused, in view of clear language employed in section 32(4) and
(5) the duties enjoined upon the Magistrate have been duly
observed. There is no requirement of the opening of the sealed
envelope by the Magistrate containing the confession and to read
it out to the accused. Paras 126- 128] [546-F-H; 547-A-D]
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State of Maharashtra v. Bharat Chaganlal Raghani &
Ors. (2001) 9 SCC 1 : [2001] 3 SCR 840 - relied on.
Adambhai Sulemanbhai Ajmeri & Ors. v. State of
Gujarat, (2014) 7 SCC 716 : [2014] 7 SCR 48
- distinguished.
11.6 In the facts and circumstances of the present case
there was no such prolonged custody so as to render the
confessional statement doubtful in any manner only due to the
fact of police custody. The impact of police custody would depend
upon the facts of each case. What is the impact of police custody
on the confessional statement has to be considered also in view
of the fact whether the accused were given sufficient time to think
over which was given in the instant case. They had legal assistance
also as they had communicated with advocates also after they
were arrested and then the S.P. explained in writing to them the
consequences of making such a statement. S.P. ensured that they
were not under any fear or greed etc. and that they were not
tortured. Thereafter confessional statement had been made.
Sufficient time for reflection had also been given. [Para 131]
[549-D-F]
 Nathu v. State of Uttar Pradesh, AIR 1956 SC 56
- distinguished.
11.7 When several accused persons are involved in various
cases and an accused is found involved in a series of cases,
obviously, his police remand has to be taken in a particular case.
That does not mean that he has been sent to police remand in
some other cases would adversely affect the confession. What is
envisaged is that with respect to the same crime, he should not
normally be subjected to police remand once he makes a
statement in the court with respect to his confession under
section 32(4) and (5), he has to be sent to judicial custody. That
has been precisely followed. In the instant case, it cannot be said
that he was subjected to prolonged police custody or he had lost
the confidence that he would not be sent to judicial custody.
[Para 132] [549-H; 550-A-B]
11.8 In the instant case, under section 32 of POTA,
confession made to a senior police officer has been made
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admissible. Even otherwise the S.P. under section 32(1), (2) and
(3) and the concerned Magistrate under subsections 4 and 5 of
section 32 have performed their duties effectively as per the law
laid down by this Court. [Para 133] [550-C-D]
Shivappa v. State of Karnataka (1995) 2 SCC 76 :
[1994] 6 Suppl. SCR 171 ; Aloke Nath Dutta & Ors. v.
State of West Bengal (2007) 12 SCC 230 : [2006] 10
Suppl. SCR 662 - distinguished.
11.9 It depends upon the nature of the case and the facts
and circumstances and evidence in each case whether the
confessional statement is truthful and is corroborated. That has
to be seen in each case. In the present case, it is not the case of
the accused that they were not given the right to consult legal
practitioner when they were interrogated after arrest by the police
under section 52 of the POTA Act. [Paras 136, 137] [554-C;
555-B]
11.10 There was no violation of safeguards provided under
the provisions of section 32(5) vis a vis any accused person. The
confessions cannot be said to be inadmissible. The provisions of
section 32 have been duly complied with. [Para 141] [559-D]
Kehar Singh v. State (Delhi Administration) (1988) 3
SCC 609 : [1988] 2 Suppl. SCR 24 - referred to.
11.11 The time of reflection was granted which was adequate
in the present case and after giving an opportunity to accused
whether they wanted to make a confession after being told that it
may be used against them, it was the case of observance of the
aforesaid principle and it is not the case that the accused had
asked for legal assistance during that period and were deprived
of it. The legal aspect of the effect of confession had been duly
informed to the accused persons beforehand in writing so many
words, and adequate time was given for reflection so as to consider
the consequence of making a confession. Nothing more could
have been advised by a lawyer. Thus, by not volunteering to
provide aid of lawyer in view of the fact that the case, where it
was not asked for during the time of reflection, even on the
assumption that it was necessary, no prejudice can be said to
have been caused to any of the accused persons as they were
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given enough time for reflection, whether they wanted to make
confession as it could be used against them. Thus, there was no
breach of any of the constitutional rights flowing from Articles
21, 22(3) and 20(3) of the Constitution of India. They were assisted
by lawyers also in the main case when remand etc. was sought.
The submission that PW-21 has stated that police custody has no
relevance upon the voluntary nature of confession, which is as
per counsel is against the settled jurisprudence, is also untenable
for the reason that section 32 makes a voluntary confession to a
police officer admissible. [Para 142] [559-E-H; 560-A-B]
11.12 The use of words like "suraksha", "prabandh",
"poorva" 'netritva' 'anusar' 'hatya' "sampark", etc., cannot be
said to be Sanskritised. It would depend upon the educational
background of a Muslim in which he has been brought up. Merely
by the fact that A-1 happens to be a Muslim, it cannot be said that
he would not know these words, particularly when it would depend
upon his own education and the family background in which he
has been brought up. Thus the criticism made of the confessional
statement due to use of the aforesaid words that they could not
have been employed by A-1 or by other accused persons is not
only unwarranted but also unacceptable. [Para 143] [560-C-F]
11.13 It is not correct to say that the fact that A-9 was in
the hospital at the time when the statement was recorded, renders
the confessional statement unreliable. No such question during
his cross-examination has been put to PW-21 as to the presence
of A-9, in hospital at 10 a.m. A-9 was required to be produced
before the Magistrate on 9.6.2003 i.e. within 48 hours as required
under section 32 of POTA. Neither he stated so in the written
retraction of confessional statement that he was at the time in
the hospital when the confessional statement is said to have been
recorded. It was necessary to discredit the recording of confession
by PW-21 to put it in the cross-examination and to seek his
explanation. Cross-examination is not a matter of procedure but
a matter of substance. [Para 147] [561-D-F]
Jai Shankar Prasad vs. State of Bihar AIR 1963 SC
1906 - relied on.
A.E.G. Carapiet v. A.Y. Derderian AIR 61 Cal.
359;Maroti Bansi Teli v. Badhabai w/o Tukaram Kunbi,
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AIR 1945 Nagpur 60 ; Karnidan Sarda v. Sailaja
Kanta Mitra AIR 1940 Patna 683 - referred to.
11.14 All the accused persons have given different reasons
for retraction of their confessional statement. The court has
individually heard each and every accused. The accused persons
have not retracted their confession at first opportunity when they
were produced. Reasons behind retraction also do not inspire
confidence. The details with which the confessional statements
have been recorded after the observance of due safeguards and
other corroborative evidence on record are indicative of the fact
that reasons for retraction are not correct. There is no allegation
that they were tortured by the police. In the absence of the same,
it does not inspire confidence that they have signed on blank
papers, etc. There was a general statement that they were under
fear made by some of the accused persons. The fact remains that
the statements have been recorded by the S.P., a high ranking
officer as envisaged under section 32 of POTA which cannot be
lightly discredited in the facts and circumstances of the case.
[Para 148] [561-G-H; 562-C-E]
Mohmed Amin & Anr. v. Central Bureau of Investigation
(2008) 15 SCC 49 : [2008] 16 SCR 155 - relied on.
11.15 Since there was no mal-treatment, no manifest
complaint of torture, confession appears to be voluntary and all
the accused persons were sent to judicial custody. Subsequent
retraction of confession is of no consequence, the same is an
afterthought. [Para 149] [563-B]
12.1 If the view of the High Court is not reasonable, this
Court may review entire material and there will be no limitation
on the jurisdiction of this Court under Article 136 of the
Constitution of India to render justice quashing the acquittal.
A-4 was part of the conspiracy to murder the deceased.
[Para 165, 166] [572-F-G]
K.R. Purushothaman v. State of Kerala (2005) 12 SCC
631 : [2005] 4 Suppl. SCR 498; Central Bureau of
Investigation, Hyderabad v. K.