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TMI Blog2008 (11) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were acquitted of charges under Section 3 and 5 of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short `the Act') but were held guilty of different offences under the Indian Penal Code (for short `IPC') and sentenced to life imprisonment. Appellant Nos.A-5 and A-8 were also convicted under Section 27 of the Arms Act, 1959 and sentenced to three years rigorous imprisonment and a fine of Rs. 3,000/- and in default to undergo rigorous imprisonment for a further period of six months. They were also convicted under Section 135 of the Bombay Police Act. 2. Background facts (i) On 3.8.1992, Hansraj Trivedi, an alleged supplier of illicit liquor and eight others were gunned down at Radhika Gymkhana Club, Ahmedabad. Although the Police registered Criminal Case No. 254 of 1992 in connection with that incident but effective steps were not taken to arrest Abdul Latif and his gang members, who were perceived as the culprits. There was public outcry against the police inaction. This compelled the concerned officers to intensify their efforts to arrest the accused. In the wake of this development, Abdul Latif and members of his gang planned surreptitious surrender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 120B read with Section 302 IPC, Section 302 read with Sections 34 IPC, Section 302 read with Section 114 IPC, Section 302 IPC and Section 27 of the Arms Act. The case was committed to Designated Court and was numbered as TADA Case No. 176 of 1993. Subsequently, two more charge-sheets were submitted and the same were numbered as TADA Cases No. 25 of 1996 and 32 of 1996. All the cases were consolidated and were tried together. (iv) The charges were framed on 2.7.1998 against 11 accused. All of them pleaded not guilty. The prosecution examined 124 witnesses and produced 147 documents, which were duly exhibited. Thereafter, statements of the accused were recorded under Section 313 of Code of Criminal Procedure (Cr.P.C.). They alleged that the police has foisted false cases against them to avoid embarrassment for having failed to solve the mystery surrounding the murder of Rauf Valiullah and that confessions were extracted from them by using coercion and threats. 3. After analyzing the evidence produced by the prosecution and considering the confessions made by the appellants except appellant No. A- 11, under Section 15 of the Act as also the statements made by them under Section 313 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted by relying on confessions ignoring that the same were not voluntary. Learned Counsel extensively referred to the statements made by the appellants under Section 313 Cr.P.C. to show that they were subjected to physical torture for the purpose of extracting confession and submitted that the same should have been rejected by the trial Court because, (i) All the appellants were brought from Ahmedabad to Delhi within 24 hours of their arrest and they were compelled to make confessions without giving them adequate time to ponder over the consequences. (ii) The appellants were throughout kept in the custody of Shri O.P. Chatwal, Deputy Superintendent of Police and Investigating Officer (for short `the Investigating Officer') and were deprived of the legal assistance. (iii) The appellants were produced before Shri A.K. Majumdar, PW- 104 and Shri Harbhajan Ram, PW-103 (both Superintendent of Police, CBI) for the purpose of recording their confessions despite the fact that they were directly supervising the investigation and were in a position to dominate the will of the appellants. (iv) After preliminary questioning, the concerned Superintendent of Police handed over the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected because both Shri A.K. Majumdar and Shri Harbhajan Ram, Superintendents of Police, CBI, who were actively supervising the investigation, had successfully tutored the minds of the appellants and induced them to make confessions. Shri Dave submitted that all the accused were kept in the custody of the Investigating Officer for 10 days before their confessions were recorded but this aspect has been ignored by the trial Court while deciding the issue of voluntary character of the confessions. Shri Dave pointed out that appellant No. A-10 retracted his confession on 25.7.1996 itself when he was produced before Chief Judicial Magistrate, Delhi and argued that the trial Court committed serious illegality by relying upon the retracted confession. Dr. Sushil Gupta argued that there is no evidence to link accused with the conspiracy allegedly hatched by Rasool Party and the learned Trial Judge committed serious error by convicting them. In support of their arguments learned Counsel relied upon the judgments of this Court in Raja Khima v. State of Saurashtra 1956CriLJ426 , Sarwan Singh Rattan Singh v. State of Punjab 1957CriLJ1014 , Shankaria v. State of Rajasthan 1978CriLJ1251 , Alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PC cannot be faulted on the ground that they were acquitted of the charge under the Act. In the end, he argued that para 2 of the guidelines laid down by this Court in Kartar Singh's case which requires that the person who makes confession under Section 15(1) of the Act should be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) of the Rules along with original statement of confession, is not attracted in the present case because confessions of the appellants except appellant No. A-10 were recorded prior to 11.3.1994 i.e. the date of judgment and insofar as appellant No. A-10 is concerned, he was produced before the Chief Judicial Magistrate, Delhi on the date his confession was recorded i.e. 25.7.1996. 8. We have given serious thought to the entire matter. Section 15 of the Act, as amended by Act No. 43 of 1993 and Rule 15 of the Rules which have bearing on these cases read as under: Section 15 of the Act Certain confessions made to Police Officers to be taken into consideration- (1)Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Sd/- Police Officer (4) Where the confession is recorded on any 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 his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having 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. 9. The challenge to constitutional validity of the Act was rejected in Kartar Singh's case. While doing so, the Court took note of the apprehension expressed by some of the learned Counsel that the provisions of the Act are likely to be misused for coercing the accused to make confession and laid down the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The question whether a confession recorded under Section 15 of the Act can be used for convicting an accused for an offence under other enactments like IPC despite his acquittal of the charge framed under the Act, was considered and answered in negative by a two-Judges Bench in Bilal Ahmad Kaloo v. State of A.P. 1997CriLJ4091 . The same view was reiterated in Rambhai Nathabhai Gadhvi v. State of Gujarat 1997CriLJ4806 and Gurprit Singh v. State of Punjab 2002CriLJ2978 . However, in Nalini's case, a three-Judges Bench held that if a person is tried simultaneously for offences under the Act along with other enactments his acquittal in respect of an offence under the Act is not sufficient to discard the confession recorded under Section 15 of the Act and the same can be used for conviction under other enactments. The three-Judges Bench referred to the earlier judgments in Bilal Ahmad's case (supra), Rambhai Nathabhai Gadhvi's case (supra), Gurprit Singh's case (supra) and observed: Section 12 of TADA enables the Designated Court to jointly try, at the same trial, any offence under TADA together with any other offence with which the accused may be charged as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence under TADA is connected with any other offence being tried together. Further, Section 12(2) provides that the Designated Court may convict the accused person of offence under that Act or any rule made thereunder or under any other law and pass any sentence authorised under that Act or the Rules or under any other law, as the case may be for the punishment thereof, if in the course of any trial under TADA the accused persons are found to have committed any offence either under that Act or any rule or under any other law. 36. The legislative intendment underlying Sections 12(1) and (2) is clearly discernible, to empower the Designated Court to try and convict the accused for offences committed under any other law along with offences committed under the Act, if the offence is connected with such other offence. The language if the offence is connected with such other offence employed in Section 12(1) of the Act has great significance. The necessary corollary is that once the other offence is connected with the offence under TADA and if the accused is charged under the Code and tried together in the same trial, the Designated Court is empowered to convict the accused for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct. (emphasis supplied) 17. The same view was reiterated in Raja Khima's case, and it was held that confession made by a person accused of an offence can be relied upon for convicting him only if the Court is satisfied that the same was made voluntarily. Applying this principle in Bharat v. State of U.P. (1971)3SCC950 , the Court observed that the voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case and that the confession must fit into the proved facts and not run counter to them. The Court held that when the voluntary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be admissible in the trial of such person as also the co-accused, abettor or conspirator for an offence under the Act or rules made thereunder. In order to ensure that this provision is not misused for extracting confession from a person accused of committing an offence under the Act, the legislature also specified certain safeguards in Sub-section (2) of Section 15 of the Act and Rule 15 of the Rules. In Gurdeep Singh's case, this Court interpreted the provisions of Section 15 of the Act in contra-distinction to Section 25 of the 1872 Act and held: 15. The legislature has conferred a different standard of admissibility of a confessional statement made by an accused under the TADA Act, from those made in other criminal proceedings. While under Section 15 of the TADA Act a confessional statement by an accused is admissible even when made to a police officer not below the rank of Superintendent of Police, in other criminal proceedings it is not admissible unless made to a Magistrate. Section 25 of the Indian Evidence Act debars from evidence a confession of an accused to a police officer, except what is permitted under Section 27. 20. So the crux of making a statement voluntar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h we have taken on the exclusion of Section 30 of the Evidence Act. In his concurring judgment Quadri, J. highlighted the distinction between Section 30 of the 1872 Act on the one hand and Section 15 of the Act on the other hand and observed that while under the former, the Court is given discretion to take into consideration the confession against the maker as well as against those who are being tried jointly for the same offence, the latter provision mandates that confession of an accused recorded thereunder shall be admissible in the trial of the maker or co-accused, abettor or conspirator provided that each of them is charged and tried with the accused in the same case. His Lordship then held that in view of the express exclusion of the application of Sections 24 to 30 of the 1872 Act to a confession recorded under Section 15(1) of the Act, the requirements of Section 30 of 1972 Act cannot be read into Section 15 of the Act. Some of the observations made by Quadri, J. are extracted below: On the language of Sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him, so it is implicit that the same can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 30 of the Evidence Act. On the language of Section 15(1), it is clear that the intention of Parliament is to make the confession of an accused substantive evidence both against the accused as well as the co-accused. 21. In S.N. Dube v. N.B. Bhoir and Ors. 2000CriLJ830 , the Court referred to the judgment of the Constitution Bench in Kartar Singh's case and observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision rather than frustrate it. 22. In Lal Singh's case, the Court referred to the earlier judgments in Kartar Singh's case, Nalini's case, S.N. Dubey's case and held: 23. ...Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned Counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh 1993CriLJ183 were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed. 24. In Devender Pal Singh's case majority of three-Judges Bench made a reference to Gurdeep Singh's case, Nalini's case and held that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the prosecution to prove that all the conditions specified in that Section read with Rule 15 of the Rules have been complied with and once that is done, it is for the accused to show and satisfy the Court that the confession was not made voluntarily. The Court further held that the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. However, as a matter of prudence the Court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence. 25. In Jameel Ahmad's case, two-Judges Bench after discussing, considering and analyzing sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as voluntary because the same had been retracted and observed: ...The police officer was empowered to record the confessional and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence to the accused to make the confession. 27. The ratio of the above noted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the concerned officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the co-accused, abettor or conspirator not only for an offence under the Act but also for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the police will beat him and, therefore, he made false confession as per the dictates of the police. A similar statement was made by him under Section 342 Cr.P.C. 1898, which is equivalent to Section 313 Cr.P.C. This Court discarded the confession by making the following observations: The appellant was sent to a Magistrate at 8 p.m. on the 21st for the recording of a confession but the Magistrate did not record it till the 3rd of June. He was examined as PW 21 and explained that he gave the appellant ten days for reflection. The length of time is unusual but no objection about its fairness to the accused could reasonably have been raised had it not been for the fact that the judicial lock-up is in charge of a police guard which is under the direct control, orders and supervision of the very Sub-Inspector who had conducted the investigation and had earlier suspected and, according to the accused, actually arrested three other persons; and two of them are now called as prosecution witnesses to depose against the appellant about a matter on which the prosecution lay great importance, namely, the sharpening of an axe. The danger that they might exaggerate their stories or give fals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter. 30. In Shankaria's case this Court referred to the questions put to the accused during his preliminary examination, took cognizance of the argument of the learned amicus curiae that no explanation had been given by the prosecution for bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant which found favour with this Court was that the confession had not been recorded in accordance with law and in any case, in the absence of any corroborative evidence, the confession of a co-accused could not be made basis for conviction. 32. In Ajit Singh's case, the Court referred to the judgments in Kartar Singh's case, Jameel Ahmed's case and held that the confession of the co- accused cannot be relied upon for reversing acquittal of the respondents because none had admitted that they were aware of the involvement of respondent No. 1 in the terrorist activities. 33. In the light of the above, we shall now deal with the arguments of the learned Counsel for the appellants that confessions made by their clients were not voluntary and the learned trial Judge committed grave error relying upon the same for convicting them under Section 302 read with Section 120B IPC. It is an undisputed position that appellant Nos.A-4, A-5, A-6, A-7 and A-8 were produced by the Investigating Officer before Shri A.K. Majumdar and appellant No. A-10 was produced before Shri Harbhajan Ram. After preliminary questioning, custody of each of the appellants was given to the Investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion whether he was desirous of making confession. In turn appellant No. A-4 reiterated that he was making confession voluntarily. Shri Majumdar then recorded his satisfaction that the accused was ready to make confession voluntarily. The question and answer as well as the note recorded by Shri Majumdar on 30th May, 1993 read as under: Q1. What have you thought about giving confession, do you still want to make confession? A. I have considered thoroughly about giving my confession. I wish to give my confession voluntarily. Read over and admitted to be correct. Note: I am satisfied that accused Mohd. Farukh Allah Rakha Sheikh is ready to make his confession voluntarily without any fear, coercion and allurement. Hence, I proceed to record his confession under Section 15 of TADA(P) Act, 1987. 36. Thereafter, Shri A.K. Majumdar recorded the statement (Ex. 480) of appellant No. A-4, who gave out that after losing money in gambling, he joined the illegal business of liquor of Latif in 1988; that Latif gang was known as `the company'; that the company purchased a new Scooter No. GJ-1C-2797 for him in 1989 from Pappu Bhai of Dilli Darwaja; that initially the colour of the scooter was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant No. A-6), Gulal (appellant No. A- 11) and Mohd. Pehalwan alias Mohd. Umar Majid Pathan (appellant No. A- 5) and the hideout of Rasool Khan alias Party at Baluchawad. He further disclosed that he knew Rauf Valiullah, a Congress leader belonging to the Muslim community and that he was called by Rasool Party through Gulal (appellant No. A-11) five-six days before the murder of Rauf Valiullah and asked to remain with Azamkhan (appellant No. A-10) and Sajidali (appellant No. A-6), who had been instructed to attack him (Rauf Valiullah) with knives; that he along with appellant Nos.A-10 and A-6 pursued Rauf Valiullah at various places but he could not attack him at Kalupur because of presence of his family members and at Lal Darwaja due to procession of Hindus; that on 9.10.1992 he was instructed by Rasool Party to go on scooter with Iqbal Hussain @ Laliyo Dhobi (appellant No. A-8) to Madhuban building where Mohmed Pahelwan (appellant No. A-5) and Sajidali (appellant No. A-6) had been sent to kill Rauf Valiullah; and Iqbal Hussain (appellant No. A-8) was instructed to shoot Rauf Valiullah in case appellant No. 5 was unsuccessful. The relevant portions of his statement are extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longing to Farukh Baba. Both of us went to Rasool in Baluchawad on the said scooter. Rasool told me to go with Iqbal alias Lala Dhobi. I cam to Iqbal and thereafter took him to Rasool in Baluchawad. We met him in the Press of Rasool and so far I remember Gulal too was there. Rasool told me that Rauf Valiullah has gone to Madhuban Building situated near Ellis Bridge, Under Bridge and told us to go there. He also told that he has already sent Mohd. Pahalwan and Sajid on a scooter for killing Rauf Valiullah. He also told us that Mohd. Pahalwan will fire that shot. Rasool gave one revolver to Iqbal Dhobi also instructed him that if Mohd. Pahalwan does not succeed in killing Rauf Valiullah, then Iqbal Dhobi will shoot and kill Rau valiullah.... ...Both of us left Baluchawad on the scooter which I was driving. We went to Gujarat College, Ellis Bridge Road, via Nehru Bridge-Navrangpur and Gujarat College.... We saw Sajid and Mohd. Pahalwan sitting on gray coloured scooter of Sajid. Sajid was sitting on the driver seat of the scooter and Mohd. Pahalwan was sitting behind him. Mohd. was wearing a blue colour check shirt and blue jeans.... After alighting from scooter, I went towards Sajid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to me on the Scooter of Rasool and asked me to keep the scooter. I refused to do so and thereafter Gulal went away from there on the scooter. Later on, I came to know that this scooter was given to Yunus Ijjat Khan Pathan Foreman for changing the colour. Iqbal had told me that Mohd. Pahalwan had fired the shot upon Rauf Valiullah and after firing the shot he left from there on an auto rickshaw.... ...My name too had come in the Police records along with names of other persons of the company in the murder case of Audhav. Therefore, all of us feared our arrest by police and decided that the members of the gang should leave Ahmedabad for some days. I along with Farukh Baba, Iqbal and Mohd. Ejaj took a Taxi from Ahmedabad and came to Baroda. My in-laws are living in Baroda. We went there and took our meals. Mehmoob Bhai of the family of my In-laws arranged our tickets for Bombay on a luxury bus and in the night we left for Bombay. We reached Bombay on the next day. We stayed in Hotel Akshar in Bhindi Bazar where we disclosed our fictitious names as Ghani Khan, Sultan, Mehmood and Ahmad, Residents of Baroda. After 3-4 days we left Bombay and went to Gulbarga. From there we made a phone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han gave a revolver to me which was loaded with 6 bullets. He told me that I have to murder Rauf Valiullah. He also told me that Rauf Valiullah has gone inside Madhuban Building situated near Under Bridge, Ellis Bridge. He further told me that he has already sent Sajid and Mohd. Pahalwan for murdering Rauf Valiullah. Rasool told me that myself and Choteli should go to that place on the scooter and if Mohd. Pahalwan fails in killing Rauf Valiullah, then I should shoot and kill Rauf Valiullah. Choteli was to drive the scooter. Rasool told us to cover the number plate of the scooter by applying grease on it after going out of the Mohalla.... I saw that Sajid was sitting on his gray colour scooter on the side of Madhuban Building. Scooter was parked in a stand and Sajid was sitting on the driver's seat. Behind him one young boy was sitting, who I had not seen earlier.... After parking scooter, Choteli went towards Sajid and came back after talking to him. He told me that Rauf Valiullah is still inside the building and he has not come out so far. He also told me that Sajid and Mohd. Pahalwan are also waiting for him to come out of the building.... After 5-10 minutes I saw that Rauf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with Mohd. Yunus Usman Bhai who is residing in Lakhota Pole, Dariapur. Both of us stayed in Hindustan Guest House which is near Railway Station, Bangalore. We stayed there for some days. From there we went to Mysore and Ooty also. From Bangalore we came back to Bombay and lived in the house of Yunus's brother Anis in Boriwili for 7-8 days and tthereafter we came back to Ahmedabad.... In the evening of 17th February, 1993, Musharaf asked me to come to the house of brother-in-law of Khurdas namely Ghani Bhai and told me that he had a talk with Latif Seth on telephone and Seth has ordered that Musharaf and myself should surrender before the police in connection with the murder case of Rauf Valiullah and also said that we should confess our crime. Since it was an order from Latif Seth, therefore, we readily agreed to surrender.... 40. Appellant Nos.A-5 and A-6 were produced before Shri A.K. Majumdar on 8.9.1993. From the replies given by them, Shri Majumdar felt satisfied that both were willing to make confessions voluntarily. Accordingly, he recorded note similar to the one recorded in the cases of all other appellants. Both were again produced before Shri A.K. Majumdar on 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ridge behind Mangaldas Town, Ellis Brdige. I told him that I have seen this bridge. Thereupon Rasool told me that Gulal will give me something and I should take that something and go to under bridge and give it to Azam Khan and one other boy who are on a scooter and will meet me at Teen Rasta near Gujarat College ahead of the under bridge. I knew Azam from before because he used to come to Lal Darwaja for swimming. Rasool also told me that I should hand over that something to the boy accompanying Azam and also hand over my motor cycle to Azam. Rasool told me that the said boy will execute the work and I should drive the scooter and after the work is over, I should leave the place with the said boy on the scooter. However, Rasool did not tell as to what work is to be executed. Rasool asked me whether I will be able to do all this. I said Yes because I was indebted to him. Thereafter Rasool talked with Gulal on telephone. After completing the talks, Gulal gave me a revolver and told me that it is loaded. When Gulal gave me the revolver, I realized that work means murdering someone. I asked Gulal as to who is to be murdered. Upon which he said I will myself come to know about it later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that time that I could not even count the shots which I fired. Suddenly Sajid brought the scooter from front and I immediately sat on the back seat of the said scooter and both of ran away from there on the scooter towards Ellis Bridge.... After running away from there, we passed via Ashram, ITO Crossing, Wise Crossing, Subhash Bridge, Under Bridge, Girdhar Nagar Bridge, Dariapur and reached Kakoriwala Ki Pole to meet Rasool Khan. Rasool Khan and Gulal were sitting in the Press at that time. After reaching there, Sajid parked his scooter outside the Press and thereafter went inside the Press and told Rasool that the work has been executed.... The relevant portions of the statement of appellant No. A-6, Sajidali, are extracted below: I was coming to Baluchawad frequently. I was going to Carom Club there. Ejaj Ahmad, Abdul Rehman etc. I saw Abdul Latif many times when I came to Baluchawad. He was doing illegal business of illicit liquor. He is living in Mohalla Mand. This gang is called Company. I know several members of this company who are also resident of this locality, namely, Sharif Khan, Rasool Khan Party, his brother Hamid, Abdul Khurdus Baba, Musharaf Gorey Khan Pathan, Farru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We kept watch upto 4.00 p.m. and thereafter came back and again Azam Khan gave a report of our watch to Rasool Khan. Similarly on third day also I and Azam first went to Trust and thereafter Congress Bhawan and thereafter behind Gujarat College and again took tea there. We again saw that the car was standing there upto afternoon. Thereafter both of us came back for eating our meals. I dropped Azam at the Pole of Mujahid and thereafter went to my house for taking my meals.... After some time Azam came there hurriedly and told me that the said person has come to the Karora Ki Pole. After saying so, he went inside the Kankori Wala Ki Pole near Rasool Khan. After some time, Rasool Khan signaled me and called me inside. By that time Gulal had also brought Amin Chauteli there. Rasool asked me, Azam and Chotel to immediately go to the Karora Ki Pole and also said that he himself is also reaching there. He had told us that as soon as the said person comes out of the house, he should be stabbed with knives. Thereafter all three of us went to Karora Ki Pole on the scooter and after parking the Scooter outside Karora Ki Pole, we went inside the Pole and distanced ourselves from each other. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inutes one Mohd. Fighter came to us on a motor cycle.... Azam had told me his name. Mohd. Fighter had come on a black colour Bullet motor cycle.... After Mohd. Fighter reached there, Azam took his motor cycle and left Fighter there and went towards Gujarat College. Fighter was wearing pant shirt and white colour sports shoes on that day.... Fighter sat with me on the scooter after Azam left us. I had told him that the person who is to be eliminated has gone inside the building and he is wearing a white kurta- pyjama and one bearded person is also with him and both of them had come here in blue colour Maruti car.... While we were sitting on our scooter, then we saw Rauf Valiullah and the bearded man coming out of the building at about 2-2.30 p.m. I do not remember now whether Rauf Valiullah was holding any packet in his hands or not. Immediately after Rauf Valiullah came out, I showed him to Mohd. Fighter. The bearded man opened the gate of the car and sat inside whereas Rauf Valiullah Sahib was going towards the side gate of the car from the right side and when he had just reached the gate of the car, Mohd. Fighter too crossed the road and reached very near to him and immediately I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Thereafter, Appellant No. A-10 made statement disclosing his acquaintance with Abdul Latif and his gang, Rasool Khan @ Rasool Party, Mohammad Farukh (appellant No. A-4), Mohmed Umar @ Mohammad Pahelwan @ Mohammad Fighter (appellant No. A-5), Sajidali @ Danny (appellant No. A-6), Mohmed Amin @ Amin Choteli (appellant No. A-7), Iqbal Hussain @ Lalia Dhobi (appellant No. A-8) and Gulam Mohmed @ Gulal (appellant No. A-11), who were members of Rasool Party gang and were accomplices of Abdul Latif in the business of illicit liquor. He further stated that about 7-8 days prior to the killing of Rauf Valiullah, Rasool Party called him and told about the decision to eliminate Rauf Valiullah because he was creating hurdles in the affairs of the company. According to appellant No. A-10, Rasool Party asked him and Sajidali to keep strict watch on Rauf Valiullah and kill him with knives. Rasool Party also gave scooter belonging to Sajidali for the purpose of keeping watch on Rauf Valiullah. Appellant No. A-10 also gave details of how he, Sajidali (appellant No. A-6) and Amin Choteli (appellant No. A-7) tracked the movements of Rauf Valiullah but failed to kill him due to the intervening fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of my locality and Imambara of Babaji. On 13.7.1996, when I was in Dani Limra, Ahmedabad, ATS of Gujarat Police came there and arrested me.... 42. From what has been noticed above, it is crystal clear that before recording confessions of appellant Nos.A-4 to A-8 and A-10, the two officers viz. Shri A.K. Majumdar and Shri Harbhajan Ram explained to each of them separately that he is not bound to make confession and that if he does so, the same may be used as evidence against him. The concerned officers also recorded their satisfaction that the appellants were making confessions voluntarily and that no threat or allurement was given to any of them and nobody had coerced them to make confession. Each of the six appellants was given time to think on the issue of making confession and having felt convinced that they were doing so out of their volition, the officers recorded their statements. The confessions of six appellants were typed by the stenographer on Hindi typewriter. The same were read over to the accused who admitted that the recording contains full and true account of his statement and then signed it. The officers also recorded their observations about voluntary character of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recording was correct. Thereafter, the concerned officers again noted that the confessions have been made voluntarily, appended their signatures and sent confessional statements to the Chief Metropolitan Magistrate, Delhi for being forwarded to the Designated Court at Ahmedabad. Appellant Nos.A-4 to A-8 were not produced before Chief Metropolitan Magistrate because their confessions were recorded before the judgment of Kartar Singh's case but appellant No. A-10 was so produced on 25.7.1996 as per the guidelines laid down in Kartar Singh's case. It is thus evident that there was total compliance of the mandate of law in recording the confessions of six appellants. 44. The question whether confession made by a person under Section 15 of the Act should be rejected only on the ground that at the relevant time he was in police custody, was considered an answer in negative in Gurdeep Singh's case, Lal Singh's case and S.N. Dube's case. In Gurdeep Singh's case, it was argued that the confession of the accused should be discarded because he was handcuffed and while recording the confession, another policeman was present in the room at some distance holding the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n time to reconsider their willingness. After they were produced again Shinde had ascertained whether they were still willing to make confessions. All the accused were previously told that they were not bound to make a confession. Each one of them was warned that if he made a confession then it could be used against him.... Shinde had tried to ascertain if any threat or inducement was given to them or whether they were ill-treated or pressurised. All the accused had categorically stated that no such thing had happened. From the answers given by the accused it can be said that Shinde had good reason to believe that the accused were making confessional statements voluntarily.... It was not even the case of the accused that they were not taken to Shinde for recording their confessions. The only suggestion that was made in his cross- examination was that he had obtained those confessions after exerting influence, coercion and physical and mental torture. We have already pointed out earlier that in the absence of any specific act suggested by the defence it is not possible to accept the belated allegation made by those accused that their confessions were obtained in that manner.... 45. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding denial of legal assistance or alleged that any threat was given to either of them or they were subjected to physical or mental torture or that undue influence was exercised by the Investigating Officers or the supervising officers or any allurement was given for the purpose of making confession. 47. Both the Investigating Officers, namely, Shri R.K. Saini (PW-122) and Shri O.P. Chatwal (PW-123) were subjected to lengthy cross- examination. Shri R.K. Saini denied the suggestion that appellant No. A-10, Salimkhan was never willing to give any confessional statement and his statement was not recorded. He also denied the suggestion that appellant No. A-10 had complained to the Chief Metropolitan Magistrate that he was ill-treated by the officers while in custody. In his cross-examination, Shri O.P. Chatwal (PW-123) categorically denied the suggestion that Shri A.K. Majumdar had instructed him to ill-treat the accused. He further stated that none of the accused was ill-treated mentally or physically by the CBI. Shri Chatwal also denied the suggestion that the confessional statements of the accused were prepared by him and their signatures were obtained on the same. In reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement or that his signatures had been obtained on the blank paper or that he was made to sign on the prepared statement or that he had been subjected to torture, or any threat or allurement was given to him to make confession. While they were in jail, none of the confessing appellants made any application to the Court that he wants to retract the confession. 50. In the bail application dated 21.10.1994 (in paragraph `L'), filed on behalf of appellant Nos.A-4, A-7, A-8 and Abdul Khurdus Abdul Ganikhan Shaikh, under Sections 437 and 439 Cr.P.C. read with Section 20(8) of the Act, it was averred that the only evidence against them is in the nature of confessional statements which are not admissible because the procedure prescribed for recording of the confessional statement has not been followed. For the first time an indication of so called torture was made in the application dated 23.11.1994 (paragraph 11) filed under Section 18 of the Act on behalf of appellant No. A-5. Therein, it was stated that the confession was recorded falsely and forcefully to involve the accused in the case with the malafide intention. A somewhat similar statement was made in paragraph (vi) of the Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 302 read with Section 120B IPC. However, before adverting to the evidence adduced by the prosecution, we consider it proper to notice the definition of criminal conspiracy and its interpretation by the Court. Section 120A IPC, which defines criminal conspiracy, reads as under: When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. 53. In Yash Pal Mittal v. State of Punjab 1978CriLJ189 , this Court interpreted the term conspiracy and held: The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co- participators in the main object of the conspiracy. There may be so many devices and techniqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive offence and render the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still attracted. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. The unlawful agreement and not its accomplishment is the essence of the crime of conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, not in attempting to do it, nor in inciting before others to do it, but in the forming of the scheme or agreement between the parties.... 55. The principles which can be deduced from the above noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sool party at Baluchawad. He then stated that Rasool party called him through appellant No. A-11 and instructed him to remain with appellant Nos.A-6 and A-10 who were instructed to follow Rauf Valiullah and kill him with knives. Appellant No. A-7 disclosed how he along with appellant Nos.A-6 and A-10 followed Rauf Valiullah at various places including Kalupur and Lal Darwaza and why the latter failed to attack Rauf Valiullah at the two places. He then disclosed that on 9.10.1992, Rasool Party asked him to go on scooter with appellant No. A-8 to Madhuban building with an indication that appellant Nos.A-5 and A-6 have been sent to kill Rauf Valiullah and also that appellant No. A-8 was given revolver with instructions to shoot Rauf Valiullah, in case appellant No. A-5 was unsuccessful. In their confessions, appellant Nos.A-6 and A-10 have given an account of instructions given by Rasool Party to keep a watch over the movements of Rauf Valiullah, efforts made by them to kill Rauf Valiullah and annoyance of Rasool Party due to their failure to achieve the task. Appellant Nos.A-6 and A-10 have also given details of how they followed Rauf Valiullah and PW 28, Pradeep Bhai upto Madhuban b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is role in the actual incident of killing Rauf Valiullah are proved from the confessions of appellant Nos.A-5, A-6, A-7 and A-8 which, as mentioned above are candid and unambiguous. Therefore, keeping in view the provisions of Section 15 of the Act as interpreted by this Court in Gurprit Singh's case, Nalini's case, S.N. Dube's case, Lal Singh's case, Devender Paul's case and Jameel Ahmad's case, we hold that the appellants are guilty of offence under Section 302 read with Section 120B IPC and no independent corroboration is required for sustaining their conviction. 57. De-hors the above conclusion, we find that the prosecution has produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under Section 302 read with Section 120B IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P. Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh Chauhan (RTO Agent), PW 59, Raju Morandani (employee of the RTO agent, Naresh Chauhan), PW 44, Vijay Kumar More (Motor Vehicle Inspector in RTO Office, Ahmedabad) have given d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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