Ahmed Hussein Vali Mohammed Saiyed &anr. Vs State of Gujarat

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2-5 OF 2003

Ahmed Hussein Vali Mohammed Saiyed & Anr. .... Appellant(s)

Versus

State of Gujarat .... Respondent(s)

WITH

CRIMINAL APPEAL NOs.13-14, 216-217 & 8-11 OF 2003

J U D G M E N T

P. Sathasivam, J.

1) All the above appeals were filed before this Court under

Section 19 of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (hereinafter referred to as “the TADA

Act”) against the order dated 21.10.2002 of the Designated

Court at Ahmedabad in TADA Case Nos. 8/1993, 144/1993,

2/1996, 4/1996 & 38/1996 whereby the learned Judge

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convicted the appellants under Section 302 read with Section

120-B I.P.C., Sections 25(1)(c) and 27 of the Arms Act and

Section 5 of the TADA Act and sentenced them under different

counts of punishment including life imprisonment.

2) The brief facts leading to the filing of the present appeals

are as follows:

According to the prosecution, on 03.8.1992, the accused

formed an unlawful assembly and conspired together along

with the absconding accused Sharifkhan, Resulkhan,

Aminkhan Mojkhan and Imtiyaz and launched an attack on

the deceased Hansraj Shivgopal Trivedi and other persons who

were with him. In pursuance of the same, nine persons were

killed and three persons were injured by indiscriminate firing

resorted to by the appellants/accused with revolvers and

automatic guns. Accused Nos. 1,2,3,4 and 20 went to

Radhika Gymkhana near Gauri Cinema, Odhav on 03.08.1992

in a Maruti Fronti Car. Accused No. 1, Liyakathussein and

absconding accused Sharifkhan fired on Hansraj and other

seven persons resulting in their death. Both of them also

resorted to indiscriminate firing on the witnesses Vrujlal and

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Mohan Meghnath which caused serious injuries to them.

Accused No. 25 – Abdul Latif Abdul Wahab Shaikh, who was

the gang leader, was accompanied by Accused Nos.26 –

Sabbirhussein Husseinmiya Shaikh, and 27 – Tajammulhasan

Alihasan Ansari, with a view to get rid of Hansraj. The

complaint was given by Laxmansinh Madansinh Bhadoria on

3.8.1992 in the Odhav Police Station bearing 1-CR No. 254 of

1992. On the strength of the complaint, various offences were

registered against the accused persons. The accused persons

were arrested by the police and after submission of charge-

sheet, necessary charges were framed by the Trial Court. On

21.12.1992, after conducting the trial in which 62 witnesses

were examined by the prosecution and 139 documents were

exhibited including the confessional statements of various

accused, the Designated Judge convicted the accused under

various sections of the I.P.C., Arms Act and TADA Act. In

addition to the sentence, the Designated Judge also directed

the accused persons to pay fine separately. All the sentences

were ordered to run concurrently. Aggrieved by the conviction

and sentence imposed by the Designated Judge, Ahmedabad,

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the appellants filed the above appeals before this Court.

3) Heard Mr. Sushil Kumar, learned senior counsel,

Ms. Nitya Ramakrishnan and Ms. Kamini Jaiswal learned

counsel, appearing for the appellants/accused, Mr. Yashank

Adhyaru, learned senior counsel appearing for the State and

perused the relevant materials including oral and

documentary evidence adduced before the Designated Court.

4) Learned counsel appearing for the appellants mainly

contended that the conviction based on confessional

statements of the appellants without any corroborative

evidence is not sustainable. It was also pointed out that even

those alleged confessional statements of the accused are not

admissible as not fulfilling the conditions prescribed under

Rule 15(3)(b) of TADA Rules. They also pointed out that

without a certificate by the competent person in clear

categorical terms about his satisfaction or belief as to the

voluntary nature of the confession recorded by him would be

fatal to the admissibility and the same cannot be cured by

placing any other material. It was further submitted that no

contemporaneous record to support the confessions were

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produced. They also pointed out that the alleged confessions

were not sent to the Magistrate within a reasonable time and

the same is in violation of Rule 15(5) of TADA Rules.

According to them, some confessional statements in original

are missing and some are typed copies without signatures of

the accused. They also highlighted that even dying

declarations cannot be relied as being contradictory and are

liable to be rejected. There is no corroboration at all to the

confessional statement of Accused No.27.

5) On the other hand, learned senior counsel appearing for

the State while supporting the conviction and sentence

imposed by the Designated Court submitted that, though, in

some of the confessional statements, the certificate was not

enclosed in clear terms, however, in view of the fact that

recording officer has orally testified about the confessions of

the accused and the defect, if any, is cured. He pointed out

that most of the statements of the accused were accompanied

by a certificate. Insofar as the confessional statements of

Accused Nos. 27 and 28 are concerned, they were recorded

post 1993 Amendment, hence, they can be used against the

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co-accused. He also pointed out that the prosecution has also

relied on several other acceptable materials in support of their

charge.

6) In the light of the above contentions and the materials

placed before the Designed Court and statutory provisions, let

us consider whether the prosecution has established its

charges leveled against the accused and the Designated Court

is right in convicting the appellants and justified in awarding

appropriate sentence.

7) According to the prosecution, the incident took place on

03.08.1992 at about 7.45 p.m. at the Radhika Gymkhana

situated in the Odhav Area, Ahmedabad which has been

declared as a notified area in terms of Section 2(f) of the TADA

Act. To show that the said area has been declared as a

notified area in terms of TADA Act, the prosecution has placed

Exh. 572 and examined their Investigating Officer-PW-59. All

the accused along with absconding accused hatched the

conspiracy to eliminate the rival gang under the leadership of

Hansraj Trivedi. There was long standing enmity between the

two gangs in the sale of liquor. Because of this gang rivalry of

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Hansraj with Abdul Latif and the members of his gang, the

enmity developed between two of them and in furtherance of

conspiracy hatched initially, in the afternoon of 03.08.1992,

Abdul Latif’s gang went to the office of Hansraj but Hansraj

was not available there, therefore, the members of Abdul

Latif’s gang returned to Madh’s Mohalla, Dariapur. Thereafter,

again in the evening, Abdul Latif received an information that

Hansraj and other members are playing game of cards in

Radhika Gymkhana at around 8 ‘O’ Clock and on the strength

of the said information, the plan was chalked out to launch an

assault on Hansraj Trivedi and other members and to

eliminate Hansraj Trivedi. In pursuance thereof, they reached

in two cars at Radhika Gymkhana and they verified that

Hansraj Trivedi and other members are playing game of cards

and thereafter the members of Abdul Latif’s gang resorted to

firing in an indiscriminate manner and killed Hansraj Trivedi

and eight other persons. Two persons of the Abdul Latif’s

gang waited near the staircase and used weapons with a view

to disperse the crowd which had gathered near the

Gymkhana. The said two accused also forced the shopkeepers

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to down their shutters. According to the prosecution, the said

act of the accused terrorized people living in the locality and it

resulted in the death of nine persons viz. Kantibhai Jethabhai

Solanki, Ramkumar Rajaram Upadhyay, Hansraj Shivgopal

Trivedi, Gatu Valnath Jogi, Shailesh Amrutlal Panchal, Dinesh

Dayalji Desai, Hasmukh Gandabhai Patel, Asharafkhan alias

Badashahkhan Pathan and Jayantibhai Joitaram Patel. In

support of the same, the prosecution examined 62 witnesses.

Out of 62 witnesses, some turned hostile and not supported

the prosecution case. As per the charge-sheet in respect of

TADA Case No. 8 of 1993 and TADA Case No. 144 of 1993, 24

persons were shown as accused. Out of the aforesaid

accused, accused Nos. 1, 2, 3, 4 and 20 were charged under

Section 5 of the TADA Act as well as under Section 25(1)(c)

and Section 27 of the Arms Act. They were also charged under

Section 120-B of the IPC and all the accused were charged

under Section 120-B read with Section 302/149 IPC. As

accused were members of unlawful assembly, the charge

under Section 148 of IPC was also framed against them. In

TADA Case Nos. 2 and 4 of 1996, the charge was framed

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against A-25 to A-28. Accused Nos. 25, 26 and 27 were

charged under Section 5 of the TADA Act as well as under

Section 25(1)(c) and Section 27 of the Arms Act and also under

Section 120-B of the IPC. They were also charged for the

offences under Section 120-B read with Section 302 and

under Section 149 read with Section 302 of the IPC while

accused No. 28 was charged under Section 302 read with

Section 120-B of the IPC and Section 5 of the TADA Act and

Sections 23(1)(c) and 27 of the Arms Act. They were also

charged with Section 148 of the IPC. In TADA Case No. 38 of

1996, the charge was framed against the accused Aminkhan

Alamkhan Mojkhan Pathan under Section 120 read with

Section 302 and Section 149 read with Section 302 and also

under Section 120-B read with Section 302 and 149 of the IPC

and Section 5 of the TADA Act and Sections 25(1)(b) and 27 of

the Arms Act.

8) After framing the charges as mentioned above, joint trial

was held and the evidence was recorded in TADA Case No. 8 of

1993.

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9) Before going into the confessional statements of the

accused, it is relevant to mention Section 15 of the TADA Act

which reads as under:

“15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:

Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.”

The above provision makes it clear that any confessional

statement of a person under the TADA Act can be recorded

either by a police officer not lower in rank than of a

Superintendent of Police, in exercise of the powers conferred

under Section 15 or by a Metropolitan Magistrate or Judicial

Magistrate or Executive Magistrate or Special Executive

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Magistrate who are empowered to record any confession under

Section 164(1) of Cr.P.C. in view of sub-section (3) of Section

20 of the TADA Act.

10) In exercise of the powers conferred by Section 28 of the

TADA Act, the Central Government framed Rules namely, the

Terrorist and Disruptive Activities (Prevention) Rules, 1987.

Rule 15 prescribes method for recording of confession made to

the police officer which reads as under:

“Recording of confession made to police officers.- (1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record.

(2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession.

(3) The confession shall, if it is in writing, be –

(a) signed by the person who makes the confession; and

(b) by the police officer who shall also certify under his own hand that such confession was taken in his presence and recorded by him and that the record contains a full and true account of the confession made by the person and such police officer shall make a memorandum at the end of the confession to the following effect:-

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“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and recorded by me and was read over to the person making it and admitted by him to be correct, and it contains and 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.”

11) The provisions of the TADA Act, more particularly,

Section 15 and Rule 15 were considered by a Constitution

Bench of this Court in Kartar Singh vs. State of Punjab,

(1994) 3 SCC 569. After holding that the TADA Act is

constitutionally valid, the Bench laid down the following

guidelines to ensure that the confession obtained in the pre-

indictment interrogation by a police officer not lower in rank

than a Superintendent of Police is not tainted with any vice

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but is in strict conformity with the well-recognized and

accepted aesthetic principles and fundamental fairness:

“(1) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him; (2) The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay; (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon; (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act, more so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act, 1956 under Section 13, authorize only a police officer of a specified rank to investigate the offences under those specified Acts. (5) The police officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody; (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure.”

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The Constitution Bench has made it clear that though it is

entirely for the Court trying the offence to decide the question

of admissibility or reliability of a confession in its judicial

wisdom strictly adhering to the law, it must, while so deciding

the question should satisfy itself that there was no trap, no

track and no importune seeking of evidence during the

custodial interrogation and all the conditions required are

fulfilled.

12) In the light of the above statutory provisions and the

safeguards as enunciated in the Constitution Bench decision,

let us analyze the evidence relied on by the prosecution.

Though several persons were implicated in the commission of

offence, we are concerned about eight persons who alone filed

the above appeals challenging their conviction. They are as

follows:

S.No. Crl. A. No. Name of the appellant/Accused 1. No.2-5 of 2003

(Tada Case 8/93, 144/93, 2/96 and 4/96)

Ahmed Hussein Vali Mohammed Saiyed (A8) Tajammulhasan Ali Hasan Ansari (A27)

2. No. 8-11 of 2003 (Tada Case 8/93, 144/93, 2/96 and 4/96)

Liyakat Hussein @ Master Khudabax Shaikh (A1) Mohammed Taqlim @ Kalu Md. Umar Shaikh [A2] Jawedkhan @ Jaeed Azizkhan

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Pathan [A3] Musarrafkhan Gorekhan Pathan (A14]

3. No.13-14 of 2003 (TaTada Ca (Tada Case No. 2/96 &

4/96

Jahangir Mazarban Patel [A28]

4. No.216-217 of 2003 (Tada Case 8/93 & 144/93

Abdul Khurdush Abdulgani Shaikh [A20]

Apart from these factual details, it is relevant to mention that

Mohammed Shafi @ Sabbu Hajiahmed Maniar [A4], Iqbal Khan

Jabbar Khan Pathan [A7] and Abdul Latif Abdul Wahab

Shaikh [A25] were reported dead during the trial, hence the

charge against them stood abated. Asharaf Khan Ajabkhan

Pathan [A6] and Abdul Hamid @ Babu Battery Gulam Nabi

[A24] had absconded and the Designated Court separated

their case holding that the trial would be held separately on

apprehending them. On appreciation of all the materials, the

Special Judge acquitted A5,6,9,10,11,12,13,15,16,17,18,19,

21,22,23,24 and 29 for which they were charged. Though

several accused made confessional statement implicating other

accused persons, the prosecution heavily relied on the

confessional statement of the following appellants/accused:

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1. Liyakat Hussein @ Master Khudabax Shaikh (A1)

2. Jawedkhan @ Jaeed Azizkhan Pathan [A3]

3. Tajammulhasan Ali Hasan Ansari (A27)

4. Mohammed Taqlim @ Kalu Md. Umar Shaikh [A2]

5. Abdul Khurdush Abdulgani Shaikh [A20]

6. Jahangir Mazarban Patel [A28]

Here again, before going into the veracity and acceptability of

the confessional statements, it is to be noted that confessional

statements are to be recorded by following procedure and

supported by memorandum as required under Rule 15(3) of

the Rules. Learned counsel appearing for the

appellants/accused pointed out that Section 15 as well as

Rule 15 being mandatory, failure to comply with the same

result in rejection of those statements. On the other hand,

learned senior counsel appearing for the State submitted that

the entire procedures and safeguards were fully complied with

while recording the confessional statements of the accused.

He also pointed out that though some of the

statements/memorandum were not enclosed with the

confessions as required under Rule 15(3)(b), some were fully

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complied with and there is no flaw, hence the Designated

Court has rightly relied on the same. He further pointed out

that even the said defect is cured, if the recording officer orally

testifies and explains the safeguards and procedures followed

at the time of recording the statement. According to him, in

the case on hand, those safeguards and procedures were fully

complied with and the officer who recorded their statement

testified before the court explaining the same. He further

pointed out that inasmuch as some of the statements were

recorded post-1993 amendment to the TADA Act, the same

can be used against the co-accused.

13) Inasmuch as these appeals were filed against the

conviction and sentence of the Designated Court in terms of

Section 19 of the Act, this Court being an Appellate Court, we

verified all the confessional statements and other connected

materials which are applicable to the appellants before us with

the assistance of the counsel on either side.

14) Among the confessional statements of the accused as

pointed out, let us consider the statement of Tajammulhasan

Alihasan Ansari [A-27] recorded on 18.03.1996 by the

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competent officer empowered under the Act. The perusal of

his statement makes it clear that before recording his

confessional statement, he was informed that he was not

bound to make the confessional statement and the same could

be used against him in future. The recorded statement also

shows that the officer has not used any force or coercion

against him to give the confessional statement and thereafter,

that is on 19.03.1996, his confessional statement was

recorded as per his statement. He explained that in 1991-92,

when he was working in the factory of Taufiqkhan Pathan,

Hansraj Trivedi used to sell liquor near Ajit Mill and in that

way he came in contact with him. After the intervention of

police, Hansraj Trivedi closed the business there and for the

purpose of Varli Mataka Gambling he used to go to Sabbu

Haji’s Quarter situated at Gomtipur and there he came in

contact with Sabbu Haji and one Isharaq Pahelvan who was

known to Sabbu Haji. He used to sell empty plastic bags

which remained at the liquor den. He also explained about

the gang rivalry between Hansraj Trivedi and Latif. Being a

member of the Latif gang, he enquired the whereabouts of

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Hansraj Trivedi at his office and ultimately found that he used

to go to Radhika Gymkhana to play cards. Sabbu Haji was

given information about Hansraj Trivedi who in turn gave the

information to Abdul Latif. On the date when Hansraj Trivedi

was murdered, first he went to Hansraj Trivedi’s office at 4 ‘o’

clock in the afternoon but finding that he was not there he

went to Radhika Gymkhana situated near Gauri Cinema.

When he reached Gymkhana, Hansraj Trivedi, Badashahkhan

Pathan and other 12-15 persons were playing game of cards.

On hearing this information, all the appellants came in two

cars and kept the same near Gauri Cinema. 5 to 6 persons

came out from the car and they were having revolver and

automatic machine guns. According to him, Sharifkhan was

having automatic machine gun. Two persons stood near the

staircase of Gymkhana and Sharifkhan, Jawedkhan,

Abdulkhurdush and Liyakat Master were shown Hansraj

Trivedi who was playing game of cards in the room. When

Hansraj Trivedi saw them in the room with weapons, he tried

to escape. On seeing his conduct, indiscriminate firing was

resorted to killing several persons. On hearing the gun firing,

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the public gathered near Gymkhana, the gangmen of Latif

rushed to their cars and returned to their place.

15) A perusal of his statement (A-27) shows that he disclosed

the names of Sharifkhan, Jawedkhan, Abdul Khurdush and

Liyakat Master and about their plan going to Gymkhana in

two maruti vans to eliminate the rival gang leader Hansraj

Trivedi and others and started indiscriminate firing killing

Hansraj Trivedi and others. At the end of his statement, he

also put his thumb impression and Deputy Commissioner of

Police, Ahmedabad city who recorded his statement

authenticated the document by putting his signature. The

statement also shows that a proper certificate in terms of Rule

15(3) was appended along with it.

16) Jahangir Mazarban Patel (A-28) has made a confessional

statement before the Competent Officer which was recorded on

06.04.1996. He was also cautioned about the fact that his

statement could be used against him in future. The statement

also shows that there was no threat or intimidation given to

him. He narrated that he used to purchase liquor from Abdul

Latif since 1992 because his father had a liquor permit. He

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used to visit Abdul Latif two or three times in a week. Abdul

Latif had purchased 38 revolvers, 17 pistols and 5 NP Bore

rifles without licence from him. He used to purchase revolvers

and pistols from one Keval Kishore Sharma, an Arms and

Ammunition Dealer from New Delhi in the year 1991. He also

narrated various instances of firing and killing of persons, use

of Arms and Ammunitions supplied by him. His confessional

statement was signed by him and necessary certificate has

been appended by the Competent Officer.

17) Aminkhan Alamkhan Mojkhan Pathan (A-29) has also

made a confessional statement before the competent officer.

Though he was acquitted by the Designated Court, let us

consider his statement how he implicated these appellants.

This was recorded on 29.08.1996 and 30.08.1996. In his case

also, at the time of recording his confessional statement, the

Competent Officer has taken all necessary precautions and

due care, to ascertain from him as to whether any threat or

coercion was used against him at the time of recording his

confessional statement. In turn, the accused informed him in

clear terms that he was aware of the consequences in making

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such statement including the fact that the same would be

used against him. He narrated the incident which took place

in Radhika Gymkhana on 03.08.1992. He also highlighted the

enmity between Hansraj Trivedi and Latif in respect of sale of

country liquor. He also explained that Hansraj Trivedi used to

receive threat from Latif for not purchasing liquor from him.

In spite of warning and threat, since Hansraj Trivedi was not

acceding to the directions of the Latif gang, a plan was chalked

out to get rid of Hansraj Trivedi and, therefore, the attempt

was made to locate the presence of Hansraj. The attack was

planned to kill him and other members of his gang. In his

statement, he mentioned in categorical terms that Abdul Latif,

Sharifkhan, Jawedkhan, Liyakat Master, Abdul Khurdush,

Sabbu Haji and Musharraf went to Radhika Gymkhana and

resorted to firing. He also mentioned that some of the accused

were arrested by the police. After making such statement, he

put his signature at the bottom and necessary certificate was

appended by the Competent Officer as provided under Rule

15(3) of TADA Rules. As rightly pointed out by the Designated

Court, his statement naming several persons corroborates the

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confessional statement given by Tajammulhasan Alihasan

Ansari (A-27). In our opinion, though A-29 was a member of

Latif’s gang, his direct involvement in the said incidence as

well as commission of the offence was not proved by the

prosecution case resulting in his acquittal by the Designated

Court.

18) The first accused, namely, Liyakathussein Alias Master

Khudabax Shaikh (A1) – His confessional statement was

recorded on 06.09.1992. In his case also, the Competent

Officer, who recorded his statement, cautioned him that there

is no need to make any statement and it would be used

against him. His statement also shows that there was no

coercion or force while recording his statement. After all these

formalities, his confessional statement was recorded. He

narrated that the members of Abdul Latif gang used to sell

liquor in Ahmedabad and used to force everyone to purchase

liquor from the members of Latif Gang and on refusal, they

used to give threat and intimidation to them. Hansraj Trivedi,

who was having his liquor den in Soni’s Chawl situated at

Odhav area was also selling liquor. In spite of several threats,

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he never used to purchase liquor from the members of Latif

Gang which resulted in bitter enmity between the members of

Latif Gang and Hansraj Trivedi. On 03.08.1992, he went to

the office of Hansraj Trivedi along with Sharifkhan,

Jawedkhan, Abdul Khurdush Rasul Party, Musharrafkhan,

Mohammed Tasalim and Imtiyaz. After return to the garage of

Latif at about 7 ‘O’ Clock on receiving information that

Hansraj Trivedi was playing game of cards in Radhika

Gymkhana, members of Latif Gang i.e. Sharifkhan,

Javedkhan, he himself, Abdul Khurdush, Sabbu Haji Maniar

and Mohammed Tasalim went to Gymkhana. Sabhu Haji also

came in Maruti Fronti Car wherein Musharraf, Ahmed

Hussein, Abdul Latif, Sabbirhussein and other two persons

were sitting while Imtiyaz came on the scooter at Radhika

Gymkhana. Sharifkhan was driving the car in which he was

traveling and another car was driven by Musharrafkhan. The

number plates of both the cars were removed. Thereafter, they

went to Radhika Gymkhana where Imtiyaz was present. He

further stated that Sharifkhan and Javedkhan both were

having AK-56 rifle. He was in possession of revolver. Abdul

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Khurdush was having pistol and Sabbu Haji Mania and

Mohammed Tasalim were having revolver in their possession.

Thereafter, he went to the first floor of Gymkhana and he

himself, Sharifkhan, Jawedkhan and Abdul Khurdush were

standing near the door of the room, Imtiyaz had shown

Hansraj Trivedi and thereafter all the four persons started

firing. Badashahkhan was also fired upon. Mohammed

Tasalim was standing near the stair case of Gymkhana with

revolver. After resorting to firing, they immediately went down

stairs and came to Dariapur with their weapons. Latif and

other members also came to Dariapur in another car. He

came to know that when the firing was resorted to in the Club,

several persons had gathered near the Club and Mohammed

Tasalim and Sabbu Haji also fired on them. Their weapons

were kept in the car of Abdul Latif. Subsequently, he came to

know that due to the firing, six to seven persons were killed in

the Gymkhana. His statement was recorded by the Deputy

Police Commissioner, South Zone and the accused put his

signature below his statement.

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19) Mohammed Taslim alias Kalu Mohammed Ummer

Shaikh (A2) – His confessional statement was recorded on

08.09.1992 by the Deputy Commissioner of Police, Western

Division, Ahmedabad City. This statement shows that he

was very well aware of the fact that the same would be used

against him. The officer has also followed the strict procedure

and the accused voluntarily made the confessional statement.

He also explained about the gang rivalry between Latif and

Hansraj Trivedi in respect of sale of liquor. He mentioned the

name and other details of 26 persons as members of Latif

Gang who were involved in the matter of conspiring to murder

Hansraj Trivedi. After narrating what had happened in the

forenoon of 03.08.1992, he explained that in the evening he

was sitting along with his other gang members. After getting a

message, Latif instructed them to kill Hansraj Trivedi who was

present in Gymkhana. Thereafter, they went to Gymkhana in

two white Maruti Fronti cars. He explained that in the Fronti

car of Latif, himself (A2), Sharifkhan, Javedkhan, Liyakat

Master, Abdul Khurdush, Sabu Haji and in the second Maruti

Fronti Car, Mussarafkhan, Ahmed Hussain Kaliyo, Abdul

26

Latif, Sabir Hussain, Latif’s known person (name not

mentioned) and Sharifkhan’s known person (name not

mentioned). He also mentioned that at the place of

occurrence, Sharifkhan had kept the automatic rifle with him,

Javedkhan had taken the second automatic rifle, Liyakat had

taken the revolver, Khurdush had pistol and Sabu had

revolver. He also had a revolver. On reaching the spot, he

himself, Javedkhan, Sharifkhan and Abdul Khurdush had

entered the Gate and Imtiaz had gone into Radhika Gymkhana

by the stairs ahead of them and others followed. He had stood

down near the stairs. All the four went inside Gymkhana and

there were sounds of firing. He had also fired towards the

people. The four persons who had gone upstairs came down

speedily and reached the car and returned to their workshop

of Latif. He also stated that on the next day, he came to know

that where they had fired at Radhika Gymkhana, eight to nine

persons were dead including Hansraj Trivedi and his man

Badshahkhan. After committing the said crime, they were

hiding in Dariyapur. After narrating all these events, he

27

signed his name and the officer who had taken down also put

his signature. However, no certificate was appended.

20) Jawedkhan Azizkhan Pathan (A3) – His statement was

recorded on 21.09.1992. His statement also shows about the

compliance of procedure and the fact that there was no need

to make such statement. In his statement, he also explained

the business of Hansraj Trivedi and the rivalry between him

and Latif. He highlighted that he and other gang members of

Latif held meeting and chalked out the plan to eliminate

Hansraj Trivedi. He also explained how he and his gang men

went to Gymkhana in two Maruti Fronti Cars. He explained

that Sharifkhan and he had taken machine gun and rifle.

Liyakat Master was having revolver. Abdul Khurdush was

having pistol and Sabu Haji and Mohammed Tasalim were

having revolver in their possession. All of them went to the

first floor of the Club and when Sharifkhan opened the door

and Hansraj Trivedi was shown, firing was started. After

firing, all of them went to Dariapur. He also stated that the

car in which Latif was sitting was having 30 rifles and Abdul

Khurdush and Rasulkhan party used to make arrangements

28

for the weapons. He came to know that nine persons had died

in the firing and three sustained injuries. During the course

of raid, Sharifkhan and he were arrested with revolver and

pistol. His confessional statement was signed by him as well

as the Competent Officer.

21) Abdul Khurdush Abdul Gani Shaikh (A20) – His

statement was recorded on 10.03.1993. All the safeguards

and procedures were followed before recording his statement.

He also mentioned about the rivalry, going in two Maruti Cars,

indiscriminate firing in the first floor of the Gymkhana Club,

killing of Hansraj Trivedi and others. He also implicated

Sharifkhan, Mohammed Tasalim, Musharrafkhan, Javedkhan,

Rasulkhan Party and Imtiyaz Ahmed. He also mentioned the

weapons that were carried by himself and others. Like others,

he also stated that after firing and killing of Hansraj Trivedi

and others, they returned to their cars and went to Madh’s

Mohalla.

22) We have carefully perused and verified the confessional

statements of Liyakat Hussein @ Master Khudabax Shaikh

(A1), Jawedkhan @ Jaeed Azizkhan Pathan [A3], Abdul

29

Khurdush Abdulgani Shaikh [A20] and Aminkhan Alamkhan

Mojikhan Pathan from the original records. The perusal of

their statements show that all of them were informed about

the fact that there was no need and compulsion to make a

statement and the same would be used against them in future

in the very same case. It is also clear that all of them

understood the entire procedure and made voluntary

statement to the competent authority that was authorized to

record their statement. Apart from narrating the gang rivalry

between Hansraj Trivedi and Abdul Latif in respect of sale of

liquor in Ahmedabad city, they also highlighted the number of

persons involved in the conspiracy in the murder of Hansraj

Trivedi and others. Most of the accused mentioned the

appellants and others who involved in the conspiracy and the

ultimate killing of Hansraj Trivedi and others.

23) The statements of the appellants/accused recorded on

various dates demonstrate the conspiracy to eliminate the

business rivalry, and killing of other gang leader, Hansraj

Trivedi and others and how they executed the same on

03.08.1992 in the premises of Radhika Gymkhana Club.

30

24) We have already pointed out that the TADA Act, being a

special Act, which permits recording of confessional statement

by a police officer not below the rank of Superintendent of

Police and the same is also admissible in evidence. However,

it is the duty of the prosecuting agency and the trial

court/special court to see that strict compliance are adhered

to while recording the confessional statement and relying on

the same.

25) Mr. Sushil Kumar, learned senior counsel and Ms. Nithya

Ramakrishnan and Ms. Kamini Jaiswal, learned counsel

appearing for the appellants, vehemently contended that in the

light of the safeguards provided in Section 15 of the Act and

Rule 15 of the Rules, in the absence of specific certificate by

the officer who recorded confession as provided in Sub-rule (3)

of Rule 15, they are inadmissible in evidence and cannot be

relied upon. They also relied on judgment of this Court in

Bharatbhai vs. State of Gujarat, (2002) 8 SCC 447. In view

of the fact that TADA Act has been upheld by Constitution

Bench of this Court in Kartar Singh’s case (supra), the

confessional statement recorded under Section 15 by a police

31

officer authorized therein is admissible in evidence. It is also

no more res integra that a confession recorded under Section

15 is a substantive piece of evidence. That statement is also

substantive evidence against his co-accused. However, in the

case of co-accused, though taken as substantive evidence as a

rule of prudence, the court would look upon corroborative

evidence as well. In the judgment relied on i.e. Bharatbhai

(supra), this Court has held that (a) Writing the certificate and

making the memorandum under Rule 15(3)(b) is mandatory.

(b) The language of the certificate and the memorandum is not

mandatory. (c) In case the certificate and memorandum is not

prepared but the contemporaneous record shows substantial

compliance with what is required to be contained therein, the

discrepancy can be cured if there is oral evidence of the

recording officer based on such contemporaneous record. (d)

In the absence of contemporaneous record, discrepancy

cannot be cured by oral evidence based on the memory of the

recording officer. It is true that the said decision makes it

clear that the certificate and making the memorandum are

mandatory, subject to certain conditions.

32

26) In State [through Superintendent of Police, CBI/SIT]

vs. Nalini, (1999) 5 SCC 253, a three-Judge Bench

considered the evidentiary value of confessional statements of

the accused as well as Section 15 of the Act and Rule 15 of the

Rules. After analyzing those provisions, this Court held that

the Court is free to treat the confession of one accused as

against a co-accused to be substantive evidence against the

latter, and in the absence of proof to the contrary, the

Designated Court would have full power to base a conviction of

the co-accused upon the confession made by another accused.

Rule 15(3) makes it clear that the confession shall be signed

by the maker and also by the police officer who recorded it.

Further, it mandates the police officer to certify under his own

hand that such confession was taken in his presence and

recorded by him and that the record contains a full and true

account of the confession made by the person. The following

conclusion in para 424 is relevant:

“424. In view of the above discussions, we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 of TADA confession of an accused is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the

33

quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. 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 again be within the sphere of appraisal of evidence.”

The above decision makes it clear that the confession made by

an accused if it is voluntary and true, then it is admissible

against co-accused as a substantive piece of evidence. It is

also clear that while recording confessional statement, if there

is omission to obtain signature of the accused at the end of the

confession, the same is admissible and the omission made by

the competent officer is curable in view of the provision

contained in Section 463 Cr.P.C. In the same manner, the

Court has held even if there was any omission in respect of the

certificate which the competent officer is required to append

under sub-rule (3) at the foot of the confession, it can be cured

as provided under Section 463 of the Cr.P.C. Such approach

is permissible in view of Section 463 of the Cr.P.C. in regard to

the omission in recording confession under Section 164

Cr.P.C., the Court has clarified that the same approach can be

adopted in respect of confession recorded under Section 15 of

the TADA Act. We have already narrated the confessional

34

statements of various accused, among them, the statements of

A-27 and A-28 satisfied Rule 15(3) in all aspects. Apart from

narration of the events, conspiracy to eliminate other gang

leader and its members, indiscriminate firing at Gymkhana,

supply of Arms and Ammunitions etc., both A-27 and A-28

subscribed their signature at the end of it and the officer who

recorded their confession apart from putting his signature also

appended a certificate in clear terms and in accordance with

Rule 15(3). It is true that in the case of confessional

statements, though signature of the accused and the officer

who recorded their statement are available, the certificate in

terms of Rule 15(3) was not appended. However, as explained

in Nalini’s case (supra) and rightly pointed out by the State

counsel, the officers - PWs 25, 26, 49 & 51 who recorded their

statement deposed before the Court, identified and explained

the course adopted while recording their statement as well as

contents therein.

27) In order to show that the confessional statements of a

number of accused persons irrespective of separate certificate

are valid, the prosecution has examined the respective

35

competent officers who were authorized to record confessional

statements which satisfied sub-rule (3) of Rule 15. One

Anupam Shrikrishna Suroliya, who was working as Deputy

Police Commissioner, Ahmedabad was examined as P.W. 24.

According to him, on 05.09.1992, the accused Liyakat who

was involved in the incident which took place in Radhika

Gymkhana was produced before him as he wanted to make

the confessional statement. The other two accused, namely,

Sharifkhan and Javedkhan were also produced to record their

confession as requested by them in his evidence. Suroliya

explained the consequence of their making statement and he

also asserted that he fully complied with all the formalities.

He stated that all the three accused made their voluntary

statement and thereafter they put their signature. However,

he admitted that the certificate was not appended to their

statement.

28) One Natvarlal Veljibhai Patel, who was working as DCP,

Controller was examined as P.W. 25. He deposed that during

his duty on 18.03.1996, one accused Tajammulhasan

Alihasan Ansari (A-27) was produced before him by the

36

Competent Officer to record his statement. He also verified

from the accused that no force and threat was used against

him to give confessional statement. Thereafter, he recorded

his statement and he had put his thumb impression below his

statement. He also put his signature. On 19.03.1996, the

said accused was again called for the purpose of recording his

confessional statement. According to him, once again after

following the procedure he recorded his statement and the

same was kept in the sealed cover.

29) One Jasbhai Chootabhai Patel, Deputy Commissioner of

Police, Western Zone, was examined as P.W. 26. According to

him, on 07.09.1992, the Investigating Officer had produced

accused by name Mohammed Tasalim Alias Kalu Mohammed

(A-2) for the purpose of recording his confessional statement.

He satisfied that the accused was not forced to make any

statement and no threat or force or coercion was used against

him to give confessional statement. Subsequently, he was

given time to consider and on the next date, he was called to

record the confessional statement. Again after following the

procedure, he recorded his statement and thereafter, his

37

signature was obtained below the same. He had also put his

signature. The original copy of the confessional statement was

transmitted to the Magistrate. On 09.03.1993, when he was

working as Deputy Commissioner of Police, the Investigating

Officer had produced Abdul Khurdush Abdul Gani Shaikh for

the purpose of recording his confessional statement. He

recorded his statement as requested by him. In his case also,

he followed all the procedure. In the cross-examination, he

had stated that he had recorded nine confessional statements.

The accused No.5 Maksud Ahmed Fateh Mohammed Shaikh

had given the confessional statement on 20.11.1992. The

officer had explained that he had also followed the same

procedure and recorded his statement as per his statement.

The confessional statement of Musharrafkhan Gorekhan, Iqbal

Hussein Alias Lalo Son of Kasambhai Faqirbhai, Mohammed

Uwesh Son of Gulam Mohammed, Amirmiya, Hafizuddin

Kadari, Mohammed Amin Alias Chotely was recorded by the

competent officer and all the formalities which was expected

from the competent officer was performed by him prior to

recording the confessional statement and thereafter the

38

confessional statement of all the accused were recorded as

requested by him. But the Designated Court has considered

the confessional statement of A-2 only as admissible evidence

amongst all the nine confessional statements recorded by him.

30) One Jitendra Narayan Rajgor, Deputy Commissioner of

Police, Crime Branch was examined as P.W. 49. In his

testimony, he deposed that on 26.03.1993, one accused

Mohammed Farooq Alias Farooq Bawa Allarakha Shaikh was

produced by the Police Superintendent Mr. A.M. Desai for the

purpose of recording confessional statement. After

ascertaining that he was free and no force or coercion was

used to give confessional statement and after giving sufficient

time, his statement was recorded. He further deposed on

04.04.1993 and 20.05.1993 the accused Mohammed Shafi

Abdul Rehman Shaikh and Abdul Hamid Alias Babu Battery

Gulam Nabi were produced before him for the purpose of

recording their confessional statements by following all the

procedure and affording sufficient time. Their statements

were recorded and obtained their signature below their

confessional statements. He also put his signature. He

39

admitted that necessary certificate was not issued below the

confessional statement of the accused.

31) Ashish Satyapal Bhatia, Superintendent of Police, was

examined as P.W. 51. In his testimony, he has stated that on

05.04.1996 one accused Jahangir Mazarban Patel(A-28) was

produced before him for the purpose of recording the

confessional statement. He also deposed that after following

the procedure he recorded his confessional statement and the

same was read over to the accused and thereafter his

signature was obtained. He also put his signature. He

asserted that necessary certificate was appended to the

confessional statement given by the accused. He also

identified the accused during recording of his evidence. He

informed the court that after recording the statement the

sealed cover in which confessional statement was placed along

with the accused was handed over to the Investigating Officer

for the purpose of transmitting the same to the Court of

Metropolitan Magistrate, Ahmedabad.

32) It is also relevant to note that one Khushpalsing Nathulal

Doshi, Deputy Commissioner of Police, Law and Order,

40

Ahmedabad was examined as P.W. 61. He deposed that on

29.08.1996 one accused Aminkhan Mojkhan (A-29) was

produced before him from the ATS Office for the purpose of

recording his confessional statement. According to him, he

explained that his statement could be used against him and

there was no compulsion to make such statement. After

following the procedure, he recorded his statement and it was

kept in the sealed cover and sent it to Metropolitan Magistrate.

33) Though, learned counsel appearing for the accused

heavily commented the recording of confessional statements of

various accused and their evidentiary value in the light of

provisions of the TADA Act and Rules, as mentioned above, we

are of the view that there is no valid reason to reject the

confessional statements of A-27 and A-28. It is the assertion

of the competent officers, who recorded their statements, that

they explained to them that their statements would be used

against them, they were given sufficient time to think over and

after following the procedure those officers have recorded their

statement. It is not in dispute that both A-27 and A-28 put

their thumb impression/signature at the end of their

41

statements and the competent officers were also put their

signature. The certificate as stated in sub-rule (3) of Rule 15

was also appended in both their statements. Though A-28

was punished only under Arms Act, there is no reason to

reject his statement in the light of compliance of the

requirements. We also adverted to other confessional

statements, except small variation most of them have

implicated the persons involved from the stage of conspiracy

till the firing which took place on the first floor of Radhika

Gymkhana. Equally though all of them either put their thumb

impression or signed their name, no certificate was appended

in terms of sub-rule (3) by the competent officers who recorded

their confessional statements. We have already referred to the

decision of this Court in Nalini’s case (supra) and the

evidence of competent officers explaining all the aspects in

detail. It is not only the confessional statements but the

prosecution has relied on certain other materials.

34) In this context it is quite relevant to mention that all the

confessional statements which have been considered by the

Designated Court have the same opening words which is

42

similar to the subject matter of memorandum to be made at

the end of each confession by the respective recording officer

as provided under Rule 15(3)(b) of the TADA Rules that the

accused making the confession is not bound to make the

confession and it was also cautioned that if he does so that

very statement can be used as evidence against him. The

initial words of each of the confessions also include that they

are made voluntarily before the recording officer. It is also

necessary to mention that all the confessional statements

made in 1992 of A1, A2, A3 and A20 respectively are without

the memorandum of the recording officer as required under

Rule 15(3)(b) of the Rules. Now according to the guidelines

given by the Constitutional Bench in Kartar Singh (supra)

Rule 15 of the TADA Rules has to be strictly complied with to

make the confessional statement made before a police officer

admissible as evidence. Now this strict compliance is

necessary for the confessional statement which needs no

corroboration or contemporaneous record to prove its veracity.

But here these confessional statements are mainly

corroborating the confession made by A-27 which has been

43

made strictly complying with all the required provision of the

TADA Act and Rules. As a result the defect, if any, present in

these confessional statements gets cured through reliable and

trustworthy deposition made by the respective recording

officers in the trial before the Designated Court. The said

memorandum is required because while recording a

confession the recording officer may forget each different

factual details regarding reminding the accused of the nature

of the confession made by him as well as all the other

statutory caution as each case is different and unique on its

own. But this defect can be cured by the deposition of the

officer with all the factual details which are present in the

present case. All the recording officers have deposed in the

trial with all the relevant facts and the question of tempering

with the confessional statements can be done away with

accordingly as has been rightly done by the Designated Court.

35) Also here it is important to mention that all the

confessional statements which have been considered by the

Designated Court to arrive at the judgment are having similar

depiction of facts regarding gang rivalry between Latif’s Gang

44

and Hansraj Trivedi, plotting of the criminal conspiracy by the

members of Latif’s gang, the details of the activities made by

the Latif’s gang members on 03.08.1992 i.e. the day of

commission of the crime in Radhika Gymkhana, identification

of the name of the accused present or participated at the time

of the commission of the crime, the description of arms and

cars used in the commission of the crime and how the gang

members escaped to Dariyapur after the occurrence of the

crime. There is no striking difference or discrepancy or

ambiguity regarding the depiction of fact in each of the

confessional statements that has been considered by the court

and they are very much able to corroborate the confessional

statement made by A-27. It is also to be remembered that all

the confessions are made almost right after the accused got

apprehended so the delay in recording the same is quite

reasonable.

36) The Amendment made by Act 43 of 1993 to Section 15 of

the TADA Act included the words “or co-accused, abettor or

conspirator” along with the person making the confessional

statement to be admissible in the trial of such person as well

45

as them provided that co-accused, abettor or conspirator is

charged and tried in the same case together with the accused.

The appellants submitted that this Court in State of

Rajasthan v. Ajit singh, (2008) 1 SCC 601 has been noted,

as the words “or co-accused, abettor or conspirator” were

inserted in the Act only in 1993, they could not be applied

retrospectively. They have also submitted that herein, the

offence was committed on 03.08.1992, before the amendments

were made to the TADA Act and as such, confession of a co-

accused cannot be used against the appellants herein. It is

also contended before us that the confessional statement of A-

27 has been made on 19.03.1996 which was after the

amended provision of Section 15(1) of the TADA Act came into

effect. As far as the admissibility of the confessional statement

of A-27 is concerned with regard to his co-accused in this

case, it is not vitiated because of the Amendment and it is

rightly used as a major evidence for the trial of his co-accused

by the Designated Court. As this confessional statement was

made complying with all the procedural essentials as provided

by the TADA Act and Rules it can be a valid ground for the

46

conviction when corroborated with the confessional statement

of the other four accused namely A1, A2, A3 and A20

respectively which have been made prior to the amendment of

the Act. Apart from the confessional statement there were also

other materials to support the prosecution case which we

discuss hereunder.

37) On behalf of the appellants, it was also submitted that

the dying declaration (Exh. 201) of Badshahkhan which was

recorded by PW6, Sukhdevsing Sardarsing Chaudasama,

mentions only the name of Sharifkhan and Liyakat Master,

(A-1) and the names of other accused who were said to be

present upstairs at the time of gun-fire in the Gymkhana in

the confessional statement are not present. Badshahkhan told

PW6 that he and Hansraj Trivedi and other members were

playing game of cards at Radhika Gymkhana at about 8

‘o’clock at night, Sharifkhan who was having gun in his

possession and Liyakat Master who was having pistol in his

possession started firing at him and Hansraj Trivedi and the

others were also fired at. According to PW6 after making this

statement Badshahkhan became unconscious. Though this

47

dying declaration is incomplete, it does not reject completely

the idea of the presence of other accused as detailed in the

confessional statements of the accused and thus it does not

negate the admissibility of the confessional statements. The

evidence of PW-6 shows that he had recorded the dying

declaration as narrated by the deceased. If the prosecution

had been out to implicate all accused falsely in case, the dying

declaration would have been so recorded. However, the

evidence of PW-6 shows that he stopped recording dying

declaration as soon as he realized that the maker was loosing

consciousness. The reliable dying declaration though

incomplete, materially corroborates the confessional statement

made by Accused No.27 and is rightly relied on by the

Designated Court.

38) It is useful to refer other materials relied on by the

prosecution and accepted by the Designated Court. The

complaint, Exh. 609, dated 03.08.1992 contains all the

materials. The complainant-Laxmansingh Madansingh

Bhadoria narrated in his complaint that he knows Hansraj for

last eight years. He also mentioned about the animosity

48

between Hansraj and famous bootlegger Latif. He also

narrated in his complaint that Hansraj used to go to Radhika

Gymkhana to play game of cards which is situated at National

Highway No. 8, near Gauri Cinema. He highlighted how these

accused persons came in a car and went to the AC room

situated in the first floor of Gymkhana where Hansraj and his

associates were playing the game of Rami. The complainant

had also narrated that on reaching the AC room, he found that

11 persons had sustained injuries due to firing of bullets and

they were lying in the pool of blood. It was he who rushed

down to the ground floor and informed Rajendrakumar

Shivgopal Trivedi, the elder brother of Hansraj. It was further

stated that immediately Rajendrabhai came with Fiat NE 118

car and Hansraj and Badshahkhan who had sustained

injuries had taken in that car to the Shardaben Hospital for

giving immediate treatment. In the meantime, Hansraj

succumbed to the injuries. The complaint also describes

about the conspiracy hatched as per the Abdul Latif to get rid

of Hansraj and others. The said complaint was given to the

Police Superintendent. Since complainant was not alive

49

during the trial, therefore, he was not summoned by the

prosecution.

39) Apart from confessional statement of the accused which

we have discussed hereinabove, the prosecution had also

relied on various other witnesses and the Designated Court

has rightly accepted the same. PW-2, Rajendrakumar

Shivgopal Trivedi, brother of deceased Hansraj Shivgopal

Trivedi, has deposed before the Court that he had received

phone call from Ranjitsinh Ramansinh Rathod at about 8 ‘O’

clock and he had mentioned about the firing which took place

in the Gymkhana. On hearing the information over phone, he

went in the car to Radhika Gymkhana and when he reached

on the first floor of the Gymkhana, he saw his brother Hansraj

Shivgopal Trivedi in a pool of blood having sustained serious

injuries. Apart from him, other 8 to 9 persons were also lying

in the room having sustained serious injuries. He also deposed

that his elder brother Rajdev and other persons from the

neighborhood arrived at the scene of incident. According to

him, with the persons gathered, Hansraj was brought down

from the first floor and he was taken to hospital in car.

50

Badashahkhan, who had also sustained injuries was also

brought down from the first floor and brought to Shardaben

Hospital for treatment. When he was driving the car, Ranjit

Singh had asked Badshah Khan about the incident and

injuries. Badshah Khan replied that the members of Latif

Gang came to the Gymkhana and fired indiscriminately on

Hansraj and others whom sustained serious injuries. He also

explained the dispute with regard to purchase of liquor

between his brother Hansraj and Latif.

40) PW-4, Rajdev Gopal Trivedi, another brother of Hansraj

Trivedi, who also rushed to the Gymkhana Club narrated what

his brother PW-2 has stated before the Court.

41) One, Shivputra Chandrapal, who was working in the

office of Hansraj was examined as PW-26 before the Court. He

deposed that when he was staying in the office of Hansraj at

about 7-30 hours in the evening of 03.08.1992, he had

received the message that firing was resorted to in Radhika

Gymkhana Club. On receipt of the said message, he went to

the Club along with the others and on reaching the first floor

of the Club, he noticed seven persons were lying in the pool of

51

blood having sustained serious injuries. Apart from Hansraj,

Badshah Khan also sustained injuries during the firing. He

also explained the enmity between the Hansraj group and Latif

over the sale of liquor.

42) PW-55, Mohanlal Laxmichand Anal, who was having his

shop dealing in arms and ammunition in New Delhi. The

name of the shop is Anal Armory and according to him at the

relevant time he was having the licence to keep the arms and

ammunitions. He deposed that the order for revolver was

given by Jahangir Patel, A-29. One, Jitendrakumar

Ranchhodlal Patel was examined as PW-56. Panchnama in

respect of recovery of one pistol and revolver which was lying

on the table was prepared in his presence. He identified A-3,

Jawedkhan. Maharajsinh Kunver Pratapsinh Rajput was

examined as PW-58. According to him, he had been working

as a Manager in Keval Kishan Sharma Arms and Ammunitions

Dealer Shop since 1989. The office situated in C/6

Lakshminagar Aruna Park, Delhi. He further explained that

on behalf of the B.D. Patel and Sons, one Jahangir Patel, A-29

used to visit their shop in connection with the sale of weapons.

52

43) PW-8 to PW-12 – Post Mortem doctors, who examined the

dead bodies, deposed before the Court about their nature of

injuries and the cause of death. Their evidence clearly

support the prosecution case that the deceased were gunned

to death due to bullet injuries. It is also clear from their

evidence that the vital injuries sustained were caused due to

the use of the firearm and all the injuries were inflicted prior

to the death of the deceased.

44) PW-13, Kamaleshkumar Babubhai Modi, who was having

a Pan Galla near Gauri Cinema, deposed that he was sitting in

his shop on 03.08.1992 and had seen one Maruti car coming

from Hotel Dreamland at about 7-30 in the evening.

According to him, 5 to 6 persons alighted from the car and

they went to Madhuram Park and they were armed with

weapons. He also informed the court that one person from the

car came to his shop and asked him in Hindi to close his shop

and switch off the light. According to him, pursuant to the

threat, he had closed the shop and heard the noise of firing.

He also deposed that his statement was recorded by the police

on 04.08.1992.

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45) Apart from the above evidence about the dispute between

the two group’s firing on 03.08.1992, the evidence of doctors

who conducted post-mortem in respect of the deceased also

support the case of prosecution.

46) PWs-20, 21, 22, 23 and 59 all Executive Magistrates,

who conducted the Identification Parade of the some of the

accused viz., A-27, A-20, A-3, A-2 and A-1, explained the same

in minute details. They also asserted that procedures were

fully followed before conducting Identification Parade in

respect of those accused. Their statement before the Court

cannot be ignored, on the other hand, it supports the

prosecution case about the involvement of accused/Appellants

in the firing that took place on 03.08.1992 at Gymkhana.

47) Though, the argument was raised that there was no

compliance of Rule 15(5) that the confessions recorded were

not sent to the Chief Judicial Magistrate or the Magistrate

having jurisdiction over the area immediately after recording

the same, if we scrutinize the evidence of the recording officers

who were all not below the rank of Superintendent of

Police/Dy. Commissioner that after recording the confessional

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statements of the accused, particularly, in respect of A-27 and

A-28 in accordance with the mandates of Section 15 and Rule

15, they were handed over to the Investigating Officers and in

turn, to the concerned Court. As a matter of fact, PW-61,

Khushpal Sing Nathulal Doshi, in his evidence asserted in

categorical terms that the confessional statement of A-29,

Aminkhan Mojkhan Pathan that was recorded by him kept in

a sealed cover and sent to the Metropolitan Magistrate. He

identified the confessional statement of the accused during the

course of his deposition. If we consider other relevant

acceptable materials which we have discussed in the earlier

part of our judgment coupled with reliable dying declaration

recorded by PW-6 and recovery of pistol as well as revolver and

considering the factual aspects of this case, the objection

raised by the appellants with regard to sub-rule (5) of Rule 15

is to be rejected. Evidence of Shiddharajsing Gulabsing Bhati

- PW-53, Anilsing Kanaksing Jadeja, PW-54, Mohanlal

Laxmichand Anal, PW-55, Natvarsinh Jagatsinh Champavat,

PW-57 and Maharajsinh Rajput, PW-58 clearly prove the

purchase of pistol and revolver by Jahangir Marazban Patel, A-

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28 at Ahmedabad who in turn supplied the same to Latif and

members of his gang, the recovery of all those weapons were

duly identified by the person concerned. Further, A-28

purchased the revolver which was used in the commission of

offence from Keval Kishore Sharma of Delhi and the same is

reflected in his confessional statement. Thus the purchase of

the weapons and use thereof by accused concerned were all

duly proved by the prosecution.

48) The complaint was made by one Laxmansingh

Madansingh Bhadoria, who lodged FIR about the incident.

Though the complainant was not examined, however, the

prosecution adduced materials in the form of oral evidence,

confessional statements of the accused, documentary

evidence, dying declarations and test identification parade.

From the perusal of all the materials, we are satisfied that the

prosecution has established the involvement of the accused in

the commission of offence, gang rivalry between Hansraj

Trivedi and Latif, their conspiracy to eliminate Hansraj Trivedi,

medical evidence connecting the bullet injuries as cause of

death and seizure of two cars used for the commission of

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offence. In those circumstances, we are unable to accept the

contentions raised by learned counsel for the appellants and

we are in agreement with the conclusion arrived at by the

Designated Court.

49) The materials placed by the prosecution clearly show that

there was a gang rivalry between the Latif’s gang and Hansraj

Trivedi. Both the gang leaders with the group members were

engaged in selling liquor in Ahmedabad city when the same is

prohibited. Both the groups were also engaged or involved in

forcing people to vacate the plots and kidnapping etc.

Prosecution has also proved that the appellants and the other

accused persons actively participated in conspiring and

chalking out the plan to eliminate Hansraj Trivedi and other

members of his gang by resorting to firing. By such

arrangement, they committed brutal murder of nine persons

and created a terror in the minds of public in and around the

area. All those actions were highlighted before the Designated

Court and by analyzing each and every material and

considering the totality of all the events, the Court found the

57

appellants herein guilty in respect of the charges and awarded

appropriate punishment.

50) Finally, one more argument was advanced about the

award of sentence to Liyakathussein @ Master Khudabax

Shaikh (A-1). The object of awarding appropriate sentence

should be to protect the society and to deter the criminal from

achieving the avowed object to law by imposing appropriate

sentence. It is expected that the courts would operate the

sentencing system so as to impose such sentence which

reflects the conscience of the society and the sentencing

process has to be stern where it should be. Any liberal

attitude by imposing meager sentences or taking too

sympathetic view merely on account of lapse of time in respect

of such offences will be result-wise counter productive in the

long run and against the interest of society which needs to be

cared for and strengthened by string of deterrence inbuilt in

the sentencing system. Justice demands that courts should

impose punishment befitting the crime so that the courts

reflect public abhorrence of the crime. The court must not

only keep in view the rights of the victim of the crime and the

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society at large while considering the imposition of appropriate

punishment. The court will be failing in its duty if appropriate

punishment is not awarded for a crime which has been

committed not only against the individual victim but also

against the society to which both the criminal and the victim

belong. With these principles, it is relevant to note that while

awarding sentence, the learned Designated Judge observed

that A-1 was the main accused in brutally murdering the nine

persons who were playing cards in the Radhika Gymkhana

and that was the reason to sentence him with extreme penalty

which would meet the ends of justice. While awarding life

imprisonment, the Designated Judge imposed a condition that

it shall not be less than 20 years. Since it was he who entered

the room where Hansraj and others were playing cards and

fired at them along with the absconding accused Sharifkhan

killing total nine persons, we feel it is appropriate and find no

ground to modify the same. The sentence in respect of others

is also proportionate to the proved charges and cannot be

claimed as excessive.

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51) In the light of the above discussion, we confirm the

conviction and sentence imposed by the Designated Court. If

any of the appellants/accused are on bail, steps shall be taken

by the Court concerned to serve the remaining period of

sentence. All the appeals are, accordingly, dismissed.

…….…….……………………CJI (K.G. BALAKRISHNAN)

...…………………………………J.

(P. SATHASIVAM)

...…………………………………J. New Delhi; (J.M. PANCHAL) May 12, 2009.

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AHMED HUSSEIN VALI MOHAMMED SAIYED &ANR. Vs STATE OF GUJARAT

AHMED HUSSEIN VALI MOHAMMED SAIYED &ANR. Vs STATE OF GUJARAT