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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 commandos and injuries to 85 people - Prosecution case 0 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 not examine the evidence with 'more than ordinary care' as F 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 accomplices disclosing evidence of the offences, and the connection of the accused persons to the offence, cannot be 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 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 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 non- application 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 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 his duty in a callous manner - He recorded statements of the 0 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 confessional statement of co-accused - Thus, confessional statements of accused persons cannot be relied upon - Code of Criminal Procedure, 1973 - ss. 164, 162. A 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. B c Evidence: Evidence of the accomplice - Reliability - Held: Evidence of the accomplice is acceptable - Confessional statements of accomplices form a very weak form of 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 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 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: Witnesswhose 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.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 PW- C 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.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 thetrousers of the fidayeens were written by A-4 - Reliability of- A 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 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. c Independent evidence - Evidentiary value - Prosecution 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 · alleged 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 - 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.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 prosecution witnessesPenal 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. |
