2019 Supreme(SC) 720

SUPREME COURT OF INDIA
ARUN MISHRA, VINEET SARAN, JJ.
CENTRAL BUREAU OF INVESTIGATION & ANR - APPELLANTS
VERSUS
MOHD. PARVEZ ABDUL KAYUUM ETC. - RESPONDENTS
CRIMINAL APPEAL NOS.140­151 OF 2012 WITH CRIMINAL APPEAL NOS. 981­982 OF 2019 (Arising out of Special Leave Petition Nos.9028­9029 of 2016) CRIMINAL APPEAL NOS.83­94 OF 2012 CRIMINAL APPEAL NO. 983 OF 2019 (Arising out of Special Leave Petition No.5530 of 2017) WRIT PETITION (CRIMINAL) NO.26 OF 2019
Decided On : 05-07-2019

IMPORTANT POINTS
In a case of conspiracy u/s 3, POTA, participation of all conspirators from beginning to end not necessary. Knowledge of the murder or attack on the victim in particular is not a sine qua non.
No witness can give a categorical statement as to posture of the deceased or the assailants at the time of firing and it is not for the autopsy doctor to give a vivid description as to how the deceased reacted at the time when gunshots were fired upon him.
Ocular evidence can be discarded only when medical evidence completely improbabilises the ocular evidence and not otherwise.
Court should not adopt hyper­technical approach in assessing the evidence. Minor discrepancies not going to heart of the matter and shake the basic version of the prosecution witness should be ignored.
Mobile call records and email records are corroborative evidence and strong circumstantial evidence.
High Court not examining each and every argument of the parties because of the volume of the material - Not a proper approach.
Certain confessions made to police officers are admissible u/s 32, POTA subject to safeguards mentioned in the section.
To discredit the confessaional statement it is necessary to put it to the person recording the same in cross-examination.
Cross­examination is not a matter of procedure but a matter of substance.
Mere possession of fire arms in a notified area is an offence u/s 4, POTA.
A member of the Executive Committee of CPIL cannot appear as counsel in a writ petition filed by the CPIL.

Headnote:

(a) Prevention of Terrorism Act, 2002 - Section 3 - Conspiracy - Participation of all conspirators from beginning to end not necessary - Knowledge of the murder or attack on the victim in particular not a sine qua non - It has been proved by evidence that that all the accused persons were in constant touch with each other - Different roles were assigned to every accused person for providing support to A­1 for commission of offence such as providing money, arranging weapons, arranging phones and fake SIM cards, logistics and accommodation, the identification of targets, etc. (Para 18, 19)

       (1999) 5 SCC 253; (2013) 13 SCC 1 - Relied upon

       (b) Criminal trial - Apprecitation of evidence - Evidence of PW 55 corrobotaed by other evidence including medical and ballistic evidence - Cannot be discredited. (Para 37)

       (c) Criminal trial - Apprecitation of evidence - Seven gun shot injuries found on the body but only five bullets were found that too inside the body - This apparent inconsistency explained by estanlishing that injuries 5 and 6 were communicating injuries - No error. (Para 39)

       (d) Medical jurisprudence - Posture of deceased and assailants - No witness can give a categorical statement as to posture of the deceased or the assailants at the time of firing - It is not for the autopsy doctor to give a vivid description as to how the deceased reacted at the time when gunshots were fired upon him. (Para 46, 48)

       (e) Criminal trial - Cross-examination - Witness subjected to lengthy cross examination on precise distance inch­wise position at the time of firing - Unnecessary - Witness cannot be expected to give such details. (Para 49)

       (f) Criminal trial - Appreciation of evidence - Medical and ocular evidence - Ocular evidence can be discarded only when medical evidence completely improbabilises the ocular evidence and not otherwise. (Para 50)

       (g) Criminal trial - Appreciation of evidence - Improvement by witness - No exception if corroborated by medical evidence. (Para 61)

       (h) Criminal trial - Appreciation of evidence - Absence of finger print and recovery - Accused not toucning the car - No question of finger prints - Not taking finger prints - Non recovery of shoes of deceased from hospital - Will not discredit prosecution case. (Para 63)

       (i) Criminal trial - Appreciation of evidence - Blood of deceased found on his cloth, mobile cloth and keys of the car - How much ans whre the blood is fund does not discredit prosecution case - It depends on whethre the haemorrhage was internal or external. (Para 65, 66)

       (j) Criminal trial - Appreciation of evidence - FIR not lodged by informer, an illiterate person - It was natural for him to inform the owner the premises - His version supported by other winess - His evidence cannot be discredited - Similarly, faulty sketch map of the place of occurrence which was not in the knowledge of the eye witness cannot discredit his evidence. (70, 71, 74, 75, 76)

       (k) Indian Evidence Act, 1872 - Section 9 - TIP conducted after 20 days - Delay heeld not undue considering the intricate nature of the investigation. (Para 77)

       (l) Criminal trial - Appreciation of evidence - Court should not adopt hyper­technical approach in assessing the evidence - Minor discrepancies not going to heart of the matter and shake the basic version of the prosecution witness should be ignored. (Para 78)

       (m) Criminal trial - Cross examination - Discrepancy in colour of bullets recovered by doctors during post mortem and those produced in the court - No suggestion put to doctors on this point - Held, testimony cannot be discredited. (Para 81)

       (n) Criminal trial - Interpolation in sketch map - Sketch map originally prepared in pencil - Faded at the time of filimg charge sheet - Made clearer by sketch pen and pencil marks erased - Held, no interpolation. (Para 101)

       (o) Criminal trial - Non examination of witnesses - Prosecution not examining some other witnesses - These not being eye witnesses, not material. (Para 102)

       (p) Criminal trial - Electronic records - Mobile call records and email records - Corroborative evidence and strong circumstantial evidence. (Para 103)

       (q) Code of Criminal procedure, 1973 - Section 162 - Position of eye witnesss not shiwn on site map - Does not prohibit prosecution form examining that witness. (Para 107)

       (r) Criminal trial - Recovery - Revolver matching striations on bullets recovered from body of deceased - Recovered from rented flat of A-1 - No one else had access to the place or knowledge of the revolver - Recovery of revolver at the instance of A-1, held, proved. (Para 109)

       (s) Administration of justice - Judicial propriety - High Court not examining each and every argument of the parties because of the volume of the material - Not a proper approach. (Para 111)

       (t) Prevention of Terrorism Act, 2002 - Section 32 - Certain confessions made to police officers admissible subject to safeguards mentioned in the section - Held, material on record establish that provisions of section 32(1), (2) and (3) for recording confessional statement of A-1 were complied with - Also held, TADA is no guide to understanding section 32 of POTA in respect to confirmation proceedings before the Magistrate - Instantly, held, the accused persons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance. (Para 121, 124, 125, 127)

       (u) Prevention of Terrorism Act, 2002 - Section 32 - Prolonged police custody - Appellant A-1 involved in series of cases - In the instant case, after recording confession before Magistrate, sent to judicial custody - Thereafter in some other case again sent to police remand - Cannot be said to be prolonged police remand. (Para 132)

       (v) Prevention of Terrorism Act, 2002 - Section 32 and section 164, Code of Criminal Procedure, 1973 - Recording of confessional statement - Searching inquiry by Magistrate u/s 164 - Provisions of section 164 CrPC different from section 32, POTA - Police and Magistrate complying with section 32 effectively - No error. (Para 133)

       (w) Prevention of Terrorism Act, 2002 - Section 52 - Legal assistance after arrest - Instantly complied with. (Para 137)

       (x) Prevention of Terrorism Act, 2002 - Section 32(1) - Confession of co-accused - Not inadmissible. (Para 141)

       (y) Prevention of Terrorism Act, 2002 - Section 32(1) - Accused given sufficient time for reflection before recoeding his confessionl statement - Legal assistance not asked for by accused - Its not that accused asked for legal assistance and was denied - Legal aspects of confession cmade clear to accused - By not volunteering to provide aid of lawyer, no prejudice can be said to have been caused to any of the accused - Held, no breach of constitutional rights flowing from Articles 21, 22(3) and 20(3), Constitution of India. (Para 142)

       (z) Prevention of Terrorism Act, 2002 - Section 32 - Confession - Use of words like “suraksha”, “prabandh”, “poorva” ‘netritva’ ‘anusar’ ‘hatya’ “sampark", etc., in confessional statement - Contention that such highly Sanskritised words would not occue to a Muslim rejected on two grounds - First, these words cannot be said to be Sanskritised - Second, merely because the accused is a muslim it cannot be said that he could not use those words. (Para 143)

       (aa) Prevention of Terrorism Act, 2002 - Section 32 - Confession - Contention that the accused asked for a glass of water and this rendered the confessional statement doubtful, rejected. (Para 146)

       (ab) Prevention of Terrorism Act, 2002 - Section 32 - Confession - To discredit the confessaional statement it was necessary to put it to the person recording the same in cross-examination. (Para 147)

       (ac) Criminal trial - Cross-examination - Cross­examination is not a matter of procedure but a matter of substance. (Para 147)

       (ad) Prevention of Terrorism Act, 2002 - Section 32 - Confessions recorded after complying with all safeguards - No allegation of torture by police - Retraction on the ground that accused were forced to give confessional statement - Not acceptable beimg afterthought. (Para 148, 149)

       (ae) Indian Penal Code, 1860 - Section 302 and 120-B r/w section 3, Prevention of Terrorism Act, 2002 - Conviction - Confessional statement of A-1 that he fired at Jagdish Tiwari and murdered Haren Pandya corroborated by other reliable ocular, medical and forensic evidence - Trial court rightly convicted him and High court erred in acquitting him. (Para 162)

       (af) Prevention of Terrorism Act, 2002 - Section 4 - Mere possession of fire arms in a notified area - An offence. (Para 175)

       (ag) Prevention of Terrorism Act, 2002 - Section 3 r/w section 120-B, Indian Penal Code, 1860 - Confessional statement and other evidence establishing involvement of A4, A5, A6, A7, A8, A9, A10, A11 in the conspiracy to kill Haren Pandya - Their conviction and sentence by Trial Court under Section 120B read with Section 302 IPC and under section 3(1) and 3(3) of the POTA, found to be appropriateand restored. (Para 173, 184, 185, 192, 193, 202, 209, 218, 223)

       (ah) POTA - Section 3 - A2 convicted u/s 3(3) - Sentenced to 7 years rigorous imprisonment u/s 3 and acquitted of all other offences giving benefit of doubt - High Court confirming the conviction ans fine but reducing the sentence to period already undergone in jail i.e., 5 years - Minimum sentence 5 years and by now 8 years have passed - Accused has already undergone more than 5 years - State/CBI not appealing against judgment and order of the Trial Court - High Court decision affirmed. (Para 224)

       (ai) Indian Penal Code, 1860 - Section 120-B and 307 - A3 acquitted of all offences under POTA and IPC except u/s 120-B and 307 IPC - Convicted and sentenced u/s 120-B and 307 - High Court maintaining the conviction and the sentence - State/CBI not appealing against decision of trial court - No inmterference warranted. (Para 225)

       (aj) Administration of justice - Judical propriety - Writ petition (PIL) filed during hearing of criminal appeals on same/similar grounds, oraying for further investigation - Certain documents for writ petition supplied by counsel for accused in the appeals - One of such counsel even appearing for writ petitioner - Held, writ petition filed in connievance with accused for oblique motive in improper way - Court expressing displeasure. (Para 245)

       (ak) Administration of justice - Judicial propriety and locus standi - Father of deceased already filing petition for further investigation - Wife of deceased also filing an application - Father of deceased questioning trial court order on her petition - Thus she was not entitled to file Special Crl. Application before High Court which she did - High Court dismissed her application - Matter should have rested there - Raking up the matter again and again, held, not bona fide - Impermissible - Amounts to political venedetta. (Para 253, 269)

       (al) Bar Council of India Rules - Part VI, Chapter II, Section I, Rule 8 - Counsel for CPIL a member of Executive Committee of CPIL - Such member cannot appear as a counsel for CPIL in a petition filed by CPIL until the rules are amended - Conduct of the Counsel improper. (Para 266, 268)

       Facts of the case:

       The facts, in short, envisage that initially two separate cases were registered by local Police relating to the murder of Mr. Haren Pandya ex­Home Minister for the State of Gujarat on 26.3.2003 and an attempt on the life of Mr. Jagdish Tiwari, a Viswa Hindu Parishad (VHP) leader of Ahmedabad on 11.3.2003. The case of murder was initially registered on the basis of a complaint brought by Mr. Janak Singh Parmar, vide FIR bearing I­C.R. No.272/2003 at Ellisbridge Police Station, Ahmedabad, on 26.3.2003. After two days, the Government of Gujarat appointed the CBI to investigate the matter on 28.3.2003. Later on the case of attempt to murder of Mr. Jagdish Tiwari was also handed over to CBI and it was registered on 2.6.2003.

       Four accused persons were absconding that is A­13, A­14, A­18 and A­19 hence no charges could be framed against them whereas other accused persons were charged for commission of offence punishable under sections 120B, 302, 307, 201 read with section 120B of the Indian Penal Code, 1860 and sections 25(1)(B)(a), 27(1) and section 5 of the Arms Act, 1959 and under sections 3(1), 3(2), 3(3), 3(4) and section 4 of POTA. The accused persons abjured their guilt. The trial court proceeded with the trial of 12 accused persons.

       The conviction and sentence imposed by the trial court was modified by the High Court.

       The High Court has dismissed the appeal with respect to conviction under section 307 read with section 120­B, IPC and section 4 read with section 3(2)(b), section 3(3) of POTA and section 25(1)(B)(a), section 27(1) of Arms Act. However, it has allowed the appeals in part and set aside the judgment of conviction with respect to the murder of Haren Pandya for the offence registered under section 302 read with section 120­B of IPC and section 3(1) of POTA against all the accused persons.

       Finding of the Court:

       Trial court decision convicting and sentencing the accused is required to be restored.

       Result: Crminal appeals filed by accused persons dismissed. Weit petition dismissed with cost.