2014 Supreme(SC) 430

SUPREME COURT OF INDIA
A.K. PATNAIK, V. GOPALA GOWDA, JJ.
Adambhai Sulemanbhai Ajmeri & Ors. – Appellants
Versus
State of Gujarat – Respondent
CRIMINAL APPEAL NOS. 2295-2296 OF 2010 With CRIMINAL APPEAL NO. 45 OF 2011
Decided On : 16-05-2014

IMPORTANT POINTS
Section 32 of POTA differs from section 164, CrPC. But POTA having been held constitutional and special Act as against CrPC being general law, section 32 will prevail over section 164.
Section 50 of POTA is not mere formality. It requires application of mind.
Safeguards of section 32 and 50, POTA have to be scrupulously followed.
Conviction cannot be ordered on the basis of retracted confession.
Confession of an accused cannot be corroborated by that of a co-accused.
Inordinate delay in recording confessional statement is fatal.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 164 – Sending accused persons to judicial custody after recording confessional statement – Matter of prudence – Not statutory requirement. (Para 31)

       (b) Prevention of Terrorism Act, 2002 – Section 50 – Sanction – Officer issuing sanction order not examined – Evidence of prosecution witness, Principal Secretary – Contradictions in statement – Prosecution failed to prove grant of sanction either on the basis of informed decision or independent analysis of fact on consultation with IO – Shows non-application of mind – Sanction void for non- application of mind. (Para 74, 75, 77)

       (1997) 7 SCC 744; (1995) 5 SCC 302; (1997) 7 SCC 622 – Relied upon

       AIR 1952 SC 75; (1997)7 SCC 744; (2005)2 SCC 409 – Referred

       (c) Interpretation of statute – Special and general statute – Section 32 of POTA making a departure from section 164, CrPC – POTA having been held constitutional, its provisions shall prevail over CrPC – However, to avoid misuse, guidelines laid down in the Act to be rigorously observed. (Para 79)

       (2004) 9 SCC 580 – Relied upon

       (2010) 6 SCC 1 – Referred

       (d) Prevention of Terrorism Act, 2002 – Section 32 – Confession – Recording of – Statements of accomplices preceded by written records of cautions in the same document – Confessional statements of accused persons not showing such caution – Process of intimation not preceding recording of confessional statements as continuous process – Presenting accused persons before CJM for half an hour – Sending them back to police custody immediately thereafter – Mere formality to show compliance with the provisions of Sections 32(4) and 32(5) – Recording of confessional statement vitiated. (Para 81, 82, 83)

       (2012) 9 SCC 1; (2000) 2 SCC 254; (2001) 3 SCC 221; (1994) 3 SCC 569; (1992) 1 SCC 473 – Referred

       (e) Prevention of Terrorism Act, 2002 – Section 32 – Police officer recording confession not assuring accused persons that not making the confessional statement will not put them in adverse position – Violative of section 32. (Para 84)

       (f) Prevention of Terrorism Act, 2002 – Section 32 – Reflection time – Accused persons making confessions almost 11 months after the incident – Reflection time of 15 minutes – Not reasonable. (Para 85)

       (2008) 1 SCC 601; (2002) 8 SCC 73 – Relied upon

       (g) Prevention of Terrorism Act, 2002 – Section 32 – Recording of confessional statement – CJM reading over confessional statement running into more than 15 pages – Also making enquiries about police torture etc. and getting it signed – All within half an hour – Not discharge of duty but mere mechanical formality. (Para 86, 87)

       (h) Section 32 and 52 – Sending accused persons to judicial custody after recording of confessional statement – Use of ‘shall’ makes it mandatory – Accused persons kept in police custody before sending to judicial custody – Safeguards of section 52 also not followed – Confessional statements made by A-2, A- 3, A-4 and A-6 under Section 32 not admissible in law. (Para 88 to 90)

       (2005) 11 SCC 600 – Relied upon

       (i) Indian Evidence Act, 1872 – Section 133 r/w section 114 – Accomplices trying to absolve themselves of the liability for the conspiracy – Not implicating themselves – Secondly, their evidence not proving guilt of accused persons without reasonable doubt – Twin tests to establish guilt of accused persons based on the evidence of the accomplices – Failed miserably (Para 93, 94)

       AIR 1968 SC 832; (1975) 3 SCC 742; (2011) 9 SCC 479; (1975) 3 SCC 742; (1969) 3 SCC 429 – Relied upon

       (1999) 5 SCC 253 – Referred

       (j) Indian Evidence Act, 1872 – Section 133 r/w 114 – Evidence of accomplices – Not legal evidence against accused persons – Cannot be used to corroborate confessional statement of accused persons – Prosecution not corroborating statements of accomplices with independent material evidence – Moreover, prosecution story attempted to be corroborated by statements of accomplices – An act of concoction to make up case against accused persons. (Para 95, 96)

       (2010) 2 SCC 353; AIR 1952 SC 159 – Relied upon

       AIR 1957 SC 637; (1985) Suppl (1) SCC 599; (2000) 8 SCC 457; (1970) 2 SCC 122; (1948-49) 76 IA 147; (2005) 1 SCC 237; Crl. Appeal No. 942 of 2006 – Referred

       (k) Indian Evidence Act, 1872 – Section 133 – Evidence of accomplices used to corroborate confessional statements of accused persons – Such evidence recorded after delay of more than a year – Evidence not acceptable. (Para 96, 97)

       (2009) 8 SCC 383 – Relied upon

       (2007) 4 SCC 266; AIR 1963 SC 599; (1969) 3 SCC 429; (2009) 8 SCC 383; (2005) 3 SCC 689 – Referred

       (l) Code of Criminal procedure, 1973 – Section 161 – Brigadier Sitapati recovering alleged letters written in Urdu from fidayeens’ body – Brigadier Sitapati neither made charge sheet witness nor examined – Lapse fatal to prosecution – Letters so recovered not kept in sealed cover – Cloths over dead bodies of fidayeen covered with blood and stains Bullet holes all over – Letters unsoiled – Possibility of replacement of originals cannot be ruled out – Letters cannot be admitted as evidence against accused persons. (Para 99 to 103)

       (1977) 3 SCC 268 – Relied upon

       (m) Criminal Trial – Evidence – Without verifying the contents of the panchnama and the seizure memo of the car KMT 413 courts below admitting the car in evidence on record against accused A-6 – No evidence to connect A6 to the car – Not permissible. (Para 110, 111)

       (n) Criminal Trial – Conviction – Confession – Section 32, POTA and section 133, Evidence Act – Accused persons convicted on basis of their confessional statements as also statements of accomplices and two letters in Urdu – Confessional statements not validly recorded – Accused persons retracting their confession – An accomplice (PW 51) also retracting his confession – Urdu letters not admissible in evidence – Conviction cannot be based on retracted confession unless corroborated by independent evidence – Retracted confessional statements of accused persons sought to be corroborated by retracted confession of co-accused and statements of accomplices – Not permissible – No independent evidence to prove guilt of the accused persons. (Para 120, 121)

       AIR 1964 SC 1184; (2005) 11 SCC 600; (2004) 7 SCC 779; AIR 1958 SC 66; (2007) 12 SCC 230 – Relied upon

       (2001) 10 SCC 109 – Referred

       (o) Indian Penal Code, 1860 – Section 120-A – Each individual conspirator need not know contents of entire conspiracy, or each and every step – Knowledge of co-conspirator of the conspiracy may be limited to his role in the conspiracy – He may have no knowledge about the actions of other co-conspirators – Common object – Should be specific – Taking revenge for Godhra Riots of 2002 – This is vague, not specific – Charges cannot be proved on basis of such vague object (Para 123, 125)

       (2005) 12 SCC 631; (2003) 3 SCC 641; (1977) 4 SCC 540; (1993) 3 SCC 609 – Relied upon

       (1999) 5 SCC 253 – Referred

       (p) Indian Penal Code, 1860 – Section 120-B – Confessional statements of accused persons and accomplices do not complement each other to form a chain of events leading to the offence – Depositions of prosecution witnesses contradictory and disrupting chain of events – Prosecution story made confusing with many discrepancies – None of the events of alleged criminal conspiracy supported by independent evidence – Offence of criminal conspiracy not proved. (Para 127, 128)

       (q) Constitution of India – Article 136 – Concurrent findings of courts below – Interference – Supreme Court has the power – To be exercised sparingly – Still, Court not prohibited from reversing the concurrent findings – If approval likely to result in miscarriage of justice – In case of death sentence, Supreme Court can examine materials on record first hand and come to its own conclusions unaffected by findings of courts below. (Para 130)

       (1979)2 SCC 297; (1988) 2 SCC 488; (1988) 2 SCC 488; (1983)3 SCC 217; (2005)6 SCC 211; (2012) 9 SCC 1 – Relied upon

       (r) Administration of Justice – Criminal Justice – Appreciation of evidence and materials on record – Police groping in dark for about a year – Then suddenly one D.G. Vanzara giving a lead speeding up investigation – Vanzara not examined – In cases like instant one, courts should appreciate evidence and materials more carefully – Courts below not examining evidence with ‘more than ordinary care’ – Courts below failed to appreciate that A-1 to A-5 not knowing A-6 displays extreme caution exercised in hatching the conspiracy – A-2, A-4 and A-6 giving different and contradictory versions of same story – Demolishing conspiracy theory of prosecution – Trouser pockets of killed fidayeens perforated by bullets and smeared with blood – Yet, the two letters were spotless – Officer finding the letters not examined – Further, courts blow not giving same weightage to defence witnesses as to prosecution witnesses – Concurrent findings of courts below is not only erroneous in fact but also suffers from error in law – Incompetence of investigating agency noted with anguish. (Para 131, 132, 133, 134, 136)

       AIR 1952 SC 159; (2002) 1 SCC 351; (2002) 2 SCC 426; (2000) 4 SCC 515 – Relied upon

       (2000) 8 SCC 382; (2006) 12 SCC 64; (2003) 10 SCC 414; (2002) 2 SCC 426; AIR 1954 SC 1; (1974) 3 SCC 388; (2008) 11 SCC 153 – Referred

       Facts of the case:

       These appeals are filed by the convicted accused appellants as they are aggrieved by the conviction and sentences awarded to them by the Special Court (POTA), and confirmed by the High Court of Gujarat for the offences punishable under the provisions of the Indian Penal Code, 1860, the Arms Act, 1959, the Explosive Substances Act, 1908 and the Prevention of Terrorism Act, 2002, for the attack on the Akshardham temple in Gandhinagar between the afternoon of 24.09.2002 and early morning of 25.09.2002, wherein 33 people were killed and more than 85 people were injured.

       The trial court convicted and sentenced the appellants (including death sentence imposed upon A-2, A-4 and A-6) for the offences charges with.

       High Court upheld the conviction and sentences.

       Finding of the Court:

       Court expressed anguish over the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation.

       Result: Appeals allowed. All accused acquitted.