Akshardham Attack Case Judgement

CC/2/2006 202/208 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL CONFIRMATION CASE No. 2 of 2006
With
CRIMINAL APPEAL No. 1675 of 2006
With
CRIMINAL APPEAL No. 1328 of 2006
For Approval and Signature:

HONOURABLE MS. JUSTICE R.M.DOSHIT
&
HONOURABLE MR.JUSTICE K.M.THAKER

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Whether Reporters of Local Papers may be allowed
1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair
3 copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation of the
4 constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to civil judge ?
=========================================================
STATE OF GUJARAT - Appellant(s)
Versus
ADAMBHAI SULEMANBHAI AJMERI & Ors. - Respondent(s)
=========================================================
Appearance : [Criminal Confirmation Case No. 2 of 2006]
MR JAYANT M PANCHAL Spl. PP with MR UA TRIVEDI & Mr. KJ PANCHAL, Addl. PPs for
Appellant -State
MR MAJID MEMON with Mr KHALID SHAIKH for Respondent (s) : 1 3.
Appearance [Criminal Appeal No. 1328 of 2006] MR. HN JHALA with Mr. Brijrajsinh P. Jhala for
Appellant MR JAYANT M PANCHAL Spl. PP with MR UA TRIVEDI & Mr. KJ PANCHAL,
Addl. PPs for Respondent -State
Appearance [Criminal Appeal No. 1675 of 2006] MR. L.R PATHAN for Appellant MR JAYANT M
PANCHAL Spl. PP with MR UA TRIVEDI & Mr. KJ PANCHAL, Addl. PPs for Respondent -State
=========================================================
CORAM : HONOURABLE MS. JUSTICE R.M. DOSHIT
and
HONOURABLE MR.JUSTICE K.M.
THAKER 1st June 2010
ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT)
1. This group of matters arise from the judgment and
order dated 1st July 2006 passed by the learned
Special Judge, Ahmedabad in POTA Case No. 16 of
2003. A reference has been made under Section 366
CrPC for confirmation of the death sentence imposed
upon the accused no.2 - Adambhai Sulemanbhai Ajmeri;
accused no.4 - Abdul Kayum @ Muftisab Mohammedbhai
Mansuri and accused no.6 - Shaanmiya @ Chandkhan
Sajjadkhan. The Appeals have been preferred by the
accused against the conviction recorded against them
and the sentence imposed.
2. The order of acquittal of the accused of

various charges is not challenged by the State.
ACCUSED NO 1 : ALTAFHUSSAIN AKBARHUSSAIN MALEK has

been convicted and sentenced as under:-
CONVICTION PUNISHMENT IMPOSED

For the offence punishable under Rigorous Imprisonment for 5 years and a
Section 22 (1) (a) of the POTA fine of Rs. 5,000/=; in default of payment
of fine, a simple imprisonment for 6
months;
The accused is acquitted of the rest of the charges.
ACCUSED NO: 2 ADAMBHAI SULEMANBHAI AJMERI has been

convicted and sentenced as under:-
For offence punishable under Life Imprisonment and a fine of Rs.

Section 3 (3) of the POTA 10,000/=; in default of payment of fine, a
simple imprisonment for 2 years;
For offence punishable under Rigorous Imprisonment for 10 years and

Section 3 (3) read with Sec. 5 of a fine of Rs. 5,000/=; in default of
the POTA payment of fine, a simple imprisonment
for 1 year;

Section 22 [2] (a) (b) of the POTA a fine of Rs. 20,000/=; in default of
payment of fine, a simple imprisonment
for 1 year;

Section 120B IPC read with a fine of Rs. 10,000/=; in default of
Section 4 of the Explosive payment of fine, a simple imprisonment
Substances Act for 2 years;

Section 120B IPC read with 20,000/=;
Section 3 & read with Section 6 of
the Explosives Substances Act
For offence punishable under Death Penalty (hanging by neck till

Section 120B IPC read with Sec. death) and a fine of Rs. 25,000/=;
302 IPC

Section 120B IPC read with Sec. 20,000/=; in default of payment of fine, a
307 IPC simple imprisonment for 1 year;
For offence punishable under Rigorous Imprisonment for 7 years and a

Section 120B IPC read with fine of Rs. 10,000/=; in default of
Section 27 of the Arms Act payment of fine, a simple imprisonment
for 1 year.
The accused is acquitted of the rest of the

charges.
ACCUSED NO : 3 MOHMED SALIM HANIF SHAIKH has been


Section 3 (3) of the POTA 10,000/=; in default of payment of fine, a

Section 3 (3) read with Sec. 5 of a fine of Rs. 5,000/=; in default of
the POTA payment of fine, a simple imprisonment
for 1 year;
For the offence punishable under Rigorous Imprisonment for 5 years and a
Section 20 of the POTA fine of Rs. 20,000/=; in default of
payment of fine, a rigorous imprisonment
for 1 year;
For the offence punishable under Rigorous Imprisonment for 10 years and
Section 21 [2] (b) of the POTA a fine of Rs. 10,000/=; in default of
for 1 year;

Section 22 [1] (a) of the POTA a fine of Rs. 20,000/=; in default of
for 2 years;

Section 120B IPC read with Sec. 4 a fine of Rs. 10,000/=; in default of
of the Explosives Substances Act payment of fine, a simple imprisonment
for 2 years;

Section 120B IPC read with Sec.3 20,000/=;
& Sec.6 of the Explosive
Substances Act
For offence punishable under Sec. Life Imprisonment till his natural life (till
120B IPC read with Sec. 302 IPC he is alive) and a fine of Rs. 25,000/=;
For offence punishable under Sec. Life Imprisonment and a fine of Rs.
120B IPC read with Sec. 307 IPC 20,000/=; in default of payment of fine, a
simple imprisonment for 1 year;

Section 120B read with Section a fine of Rs. 5,000/=; in default of
121-A of the IPC payment of fine, a simple imprisonment
for 1 year;

Section 120B read with Sec.153A fine of Rs. 5,000/=; in default of payment
of the IPC of fine, a simple imprisonment for 6
months;

Section 120B IPC read with Sec. fine of Rs. 10,000/=; in default of
27 of the Arms Act payment of fine, a simple imprisonment
for 1 year.

charges.
ACCUSED NO : 4 ABDULKAYUM @ MUFTISAAB MOHMEDBHAI
MANSURI has been convicted and sentenced as under:-

Section 3 (3) of the POTA 10,000; in default of payment of fine, a

Section 3 (3) read with Section 5 a fine of Rs. 5,000/=; in default of
of the POTA payment of fine, a simple imprisonment
for 1 year;

Section 120B IPC read with Sec. a fine of Rs. 10,000/=; in default of
4 of the Explosives Substances payment of fine, a simple imprisonment
Act for 2 years;

Section 120B IPC read with Secs. 20,000/=; in default of payment of fine to
3 & 6 of the Explosive recover the amount in accordance with
Substances Act the law;
For offence punishable under Death Penalty (hanging by neck till

Section 120B IPC read with Sec. death) and a fine of Rs. 25,000/=; in
302 IPC default of payment of fine, the same shall
be recovered in accordance with law;

Section 120B IPC read with Sec. 20,000/=; in default of payment of fine, a
307 IPC simple imprisonment for 1 year;
For offence punishable under Sec. Rigorous Imprisonment for 3 years and a
120B read with Section 153A of fine of Rs. 5,000/=; in default of payment
the IPC of fine, a simple imprisonment for 6
months;
For offence punishable under Sec. Rigorous Imprisonment for a period of 7

120B IPC read with Section 27 of years and a fine of Rs. 10,000/=; in
the Arms Act. default of payment of fine, a simple
imprisonment for 1 year.
For offence punishable under Sec. Rigorous Imprisonment for 10 years and
120B IPC read with Section 121- a fine of Rs. 5,000/=; in default of
A of the IPC payment of fine, a simple imprisonment
for 1 year;

charges.
ACCUSED NO: 5 ABDULLAMIYA YASINMIYA KADRI has been

convicted and sentenced for the offences as under:-
For offence punishable under Imprisonment for 10 years and a fine of Rs.
Sec. 3 (3) of the POTA 10,000/=; in default of payment of fine, a
simple imprisonment for a period of 2 years;

charges.
ACCUSED NO: 6 SHAANMIYA @ CHANDKHAN SAJJADKHAN has been


Sec. 3 (3) of the POTA 10,000/=; in default of payment of fine, a
For offence punishable under Life imprisonment and a fine of Rs.

Sec. 3 (1) of the POTA 25,000/=; in default of payment of fine, the
same shall be recovered in accordance with
the law;

Sec. 3 (3) read with Sec. 5 of fine of Rs. 5,000/=; in default of payment of
the POTA fine, a simple imprisonment for 1 year;

Sec. 120B IPC read with Sec. fine of Rs. 10,000/=; in default of payment
4 of the Explosive Substances of fine, a simple imprisonment for 2 years;
Act

Sec. 120B IPC read with Secs. 20,000/=; in default of payment of fine to
3 & 6 of the Explosive recover the amount in accordance with the
Substances Act law;
For offence punishable under Death Penalty (hanging by neck till death)
Sec. 120B IPC read with and a fine of Rs. 25,000/=; in default of
Section 302 IPC payment of fine, the same shall be recovered
in accordance with law;

Sec. 120B IPC read with 20,000/=; in default of payment of fine,
Section 307 IPC simple imprisonment for 1 year;
For offence punishable under Rigorous Imprisonment for a period of 7

Sec. 120B IPC read with years and fine of Rs. 10,000/=; in default of
Section 25 [1] [AA] of the payment of fine, a simple imprisonment for 2
Arms Act years;

charges.
3. The aforesaid sentence imposed upon each
accused is ordered to run concurrently. The
accused are allowed set-off for the time spent
in custody, wherever applicable.
4. The criminal prosecution against the
aforesaid six accused persons and other
absconding and dead accused arose from an
incident of terrorist attackon Akshardham Temple
at Gandhinagar on 24th September 2002. On Sunday,
the 24th day of September 2002 at around 4:40 in
the afternoon, two persons armed with AK 56
rifles, hand grenades, ammunition, etc., entered
the temple precinct over the Gate No. 3. The
said two persons [hereinafter referred to as,
the Fidayins] opened indiscriminate firing near
the entertainment area of the temple where
several people had gathered to enjoy various

rides. From there, the fidayins turned towards
the temple. They opened fire at the pilgrims and
visitors. They also entered the museum area
where there was concentration of people. They
threw hand grenades. The aforesaid attack
continued all throughout the night until the wee
hours of 25th September 2002. The attack could be
arrested only after the National Security Guard
Commandos [hereinafter referred to as, the NSG
Commandos] took over the entire temple area and
till both the Fidayins died in the counter
attack by the NSG commandos. In the said
incident, thirty three people lost their life
and eighty six people sustained injuries. Two
dead bodies which could not be identified were
believed to be that of the Fidayins. The people
who lost their life included young and old; men
and women and also an unborn child.
5. The FIR [Exh.680] in respect of the incident

came to be lodged on 25th September 2002 after
the NSG commandos handed the premises of the
temple over to the police. In the said FIR, no
offence under the Prevention of Terrorism Act,
2002 [hereinafter referred to as, the POTA] was
mentioned. By Order made on 3rd October 2002, the
investigation in the incidence was entrusted to
the Anti Terrorist Squad [hereinafter referred
to as, the ATS]. The investigation remained with
the ATS for nearly an year without making any
break through. On 28th August 2003, the
investigation was transferred to the Crime
Branch. Since the transfer of the investigation
to the Crime Branch, the investigation gathered
momentum. In the next few days, several arrests
were made including the arrest of these six
accused persons. The confessional statements of
the accused persons were recorded. The
statements of witnesses were recorded. Further
investigation in the matter was carried out,
identification of places and recovery of

muddamal articles followed. On discovery of
involvement of the prohibited terrorist groups
Jais-E-Mohmmad and Lashkar-E-Toibathe offence
under the POTA was registered. The case was
transferred to the Special Court. The
chargesheet against the accused persons was
filed on 25th November 2003. The charge [Exh. 83]
was framed on 17th June 2004.
6. It was alleged that the heinous attack was
the retaliation of the incidence of the communal
riot in the State of Gujarat which broke out in
the months of March & April 2002 in which
several Muslim persons had lost their lives and
properties. The terrorist attack was conceived
by some unknown persons of foreign origin
presumably of Pakistan and Saudi Arabia. The
Indian Muslims residing in Saudi Arabia were
instigated to retaliate the incidence of the
months of March/April 2002. They were enticed to

fund the terrorist attack. The Fidayins were
recruited by the said master minds. They
traveled to Ahmedabad by train from Kashmir via
Bareily. They were provided with rifles, hand
grenades, gun-powder and other weapons. The
accused persons joined them in providing
necessary hide-outs in the city of Ahmedabad; in
providing transport in and around the city of
Ahmedabad and in selecting the place and time
for carrying out their attack and in giving them
last rites of namaaz for their well being
[Hifazat].
7. The charge was framed against the six
appellants and 28 others, including the two
fidayins and 26 accused who are absconding. It
was alleged that with a view to retaliating the
loss of life and the property caused to the
Muslims in the State of Gujarat during communal
riots that broke out after the incidence of

Sabarmati Express Train carnage at Godhara on
27th February 2002 in which some Muslims had
burnt the Hindu Kar-Sevaks alive, a criminal
conspiracy was hatched to strike terror amongst
the Hindus in the State of Gujarat and to wage
war against the State of Gujarat. The accused
nos. 1 to 6 and the absconding accused nos.3 to
28 in connivance with one another had gathered
the Indian Muslims working in the towns of
Jiddah, Shiffa and Riyadh of Saudi Arabia at the
residence of the accused no.3, the accused nos.
1, 3 and 5 and the absconding accused nos.3, 4,
5, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22
who were the members of the prohibited terrorist
groups Jais-E-Mohamed Tanzim and Lashkar-E-Toiba
made inciting statements and utterance and
hatched conspiracy to spread terror in the State
of Gujarat. They showed the cassettes of the
loss caused to the Muslims in the State of
Gujarat and the gruesome photos and the videos
of the dead bodies of Muslim men, women and

children at the residence of the accused no.3
and at party plots; distributed the cassettes
and made enticing statements damaging the unity
and integrity of India; to assassinate the Hindu
leaders and to cause loss to the person and
property of Hindu people. The accused no. 1 and
3 and the absconding accused nos. 3 to 5 and 12
to 22 at the instance of the ISI of Pakistan
became members of the terrorist outfit Jaish-E-
Mohammadand collected funds for it.
The absconding accused no. 4-the brother of the
accused no.2 Adambhai Sulemanbhai Ajmeri assured
the accused no.2 by telephone to provide
sufficient man-power, weapons and the funds for
striking terror in Gujarat. He also instructed
accused no.2, to provide hideouts to the
Fidayins in the city of Ahmedabad. The accused
no. 2 contacted the accused no. 4 and 5 who were
working at the relief camp at Dariapur Bavahir

Hall and were instigating young muslim boys.
After discussion, it was decided to call for the
funds from Saudi Arabia. The responsibility to
carry out the terrorist attack was taken over by
the accused nos. 2, 4 and 5. The absconding
accused nos. 9, 10 and 11 the residents of Saudi
Arabia who were working with 'Jaish-E-
Mohammadsent funds to Ahmedabad through the
absconding accused no. 8 and one another to the
accused no.2. On 26th April 2002, the accused no.
2 met the absconding accused nos. 16 and 23 at
Hyderabad in hotel G-Royal to explain to them
the intention to strike terror to retaliate the
loss suffered by the Muslims in the State of
Gujarat and to arrange for funds, arms and the
manpower for the said purpose. In pursuance, the
absconding accused no. 23 gave Rs. 3,500 to the
accused no. 2 to carry out the conspiracy.
To carry out the aforesaid criminal conspiracy,

the absconding accused no. 16 visited the relief
camps run at Ahmedabad during the communal
riots. At his instance, the accused no.6
arranged to send young Muslim boys taking
shelter in the relief camp to Pakistan for
training.
To carry out the said criminal conspiracy the
Fidayins and the absconding accused no. 3 came
to Ahmedabad before 24th September 2002. The
accused no. 2 received them at the railway
station. The accused nos.4 & 5 provided shelter
in the Bavahir Hall at Dariapur and at another
place. The accused no.4 wrote the instigating
write up in Urdu that was found from the person
of the Fidayins after they were killed in the
counter attack by the NSG commandos. The accused
no.2 procured auto-rickshaw no. GRW-3861 of the
ownership of one Dhruvnarayan Ramtirth Pandey
[PW 117 : Exh. 642] and carried them around the

Ahmedabad city to show them the party office of
the Bharatiya Janta Party, of the Vishwa Hindu
Parishad and other congested areas, Akshardham
temple at Gandhinagar largely visited by the
Hindu people and the places where terror attack
could be carried out so as to cause maximum
damage. The accused no.2 arranged for the
overnight stay of the Fidayins at the residence
of his brother Habib @ Abbas.
On 24th September 2002 before the incidence, the
accused no.2 and the absconding accused no.23
went to Akshardham temple and waited there. At
that time, the Fidayins [deceased accused nos. 1
& 2] reached there in an Ambassador Car driven
by Rajnikant [Rajuji] Bhallaji Thakore [PW-68
Exh. 391]. After the Fidayins jumped over the
Gate No.3, entered the Akshardham temple and
started firing at the people, the accused no.2
and the absconding accused no. 23 left the

temple and came back to Bavahir Hall. Under the
instructions of the accused nos.4 & 5, the
accused no. 2 escorted the absconding accused
no. 23 to the Ahmedabad Railway Station and
arranged for him to leave for Baroda in a hired
taxi.
The deceased terrorist Zuber, an active member
of the terrorist group Jaish-E-Mohammad
introduced the accused no. 6 to the absconding
accused nos. 24 and 25. With the help of
absconding accused nos. 24 and 25, the accused
no. 6 purchased an ambassador car from Mazgaon
[Jammu Kashmir] for Rs. 40,000/= and got the
ambassador car modified to provide for a
concealed cavity to carry the weapons like AK 56
rifles, magazines, hand grenades, explosives,
etc. The accused no. 6 with the help of the
absconding accused no. 24 arranged for Fidayins
to travel from Anantnag to Bareily in ambassador
car no. KMT-413 and sent the Fidayins from

Bareily to Ahmedabad. The accused no. 6 with the
help of the absconding accused no. 27 brought
the weapons to Ahmedabad in the company of the
absconding accused no.28. The absconding accused
no.7 helped the accused no.6, the Fidyains and
the absconding accused no.26 to transport the
weapons in his auto-rickshaw. The accused no.6
received Rs.30,000/= from the terrorist Zuber
[later died in an encounter].
8. Thus, the accused before the Court, and the
absconding accused and the Fidayins hatched a
criminal conspiracy to wage war against the
Government of India and the Government of
Gujarat; to strike at the unity, integrity and
sovereignty of India. The accused present and
absconding, hatched conspiracy in connivance
with one another, recruited Fidayins, collected
the weapons and explosives, used them with
knowledge and intention to wage war against the

Union of India and the State of Gujarat to
commit offences punishable under Section 120B
IPC read with Section 121; Section 124A; Section
123; Section 153A; Section 302; Section 452 and
Section 307 IPC; punishable under Section 120B
IPC read with Section 29, Section 25[1](AA);
Section 27 of the Arms Act, 1959; punishable
under Section 120B IPC read with Section 3,
Section 4 and Section 6 of the Explosive
Substances Act, 1908; punishable under Section
120B IPC read with Section 153A IPC; punishable
under Section 3(1)(a)(b); Section 3(3); Section
4; Section 21; Section 21(2) of the Prevention
of Terrorism Act, 2002 read with Section 120B
IPC and punishable under Section 135(1) of the
Bombay Police Act, 1951.
9. The Principal Secretary to the Government of
Gujarat, Home Department, Gandhinagar-Shri
Kuldip Chand Kapoor [PW-88 : Exh.497] has proved

the sanction Exh.498 to prosecute the accused
under the POTA granted by the Government of
Gujarat under Section 50 of the POTA. The
Municipal Commissioner, Bhavnagar Shri Saiyed
Javed Haider [PW-92 : Exh. 525] has proved the
sanction Exh. 527 to prosecute the accused under
the Arms Act & the Explosive Substances Act
granted by him as the District Magistrate,
Gandhinagar.
10. The legality of the aforesaid sanction
Exhs.498 and 527 is not challenged before us.
11. The incidence has been proved by the
prosecution by the evidence of the Eye-witnesses
and the injured witnesses Shri Pravinbhai
Chhotalal Khetani [PW-3:Exh. 125]; Jitendra
Radheshyam Shah (Injured) [PW-7: Exh. 134];
Madansingh Varsingh Pasaya (Injured) [PW-8:

Exh.135]; Anwarbhai Karimbhai Mir (Injured) {PW-
9 Exh.136]; Rajeshbhai Madhubhai Patel (Injured)
[PW-10:Exh.137]; Pareshbhai Jayantibahi Brahmin
(Injured) [PW-11 : Exh.138]; Gurmitsingh
Bhajansingh Bagga (Injured) [PW-13: Exh. 148];
Santosh Venkatesh Kulkarni [PW-14: Exh. 149];
Kodsinh Udesinh Jadav [PW-15:Exh. 150]; Narendra
Ratilal Bhatt [PW-16:Exh. 151]; Abhipshaben
Jayanarayanbhai Joshi (Injured) [PW-19:
Exh.161]; Jayantibhai Ratilal Patel (Injured)
[PW-20: Exh. 162]; SRP Commando Kirtansinh
Amarsinh Bariya (Injured) {PW-21 : Exh. 163];
Police Sub-Inspector-Digvijaysinh Pathubha
Chudasama (Injured) [PW-67: Exh.390];
NishitbhaiKanubhai Acharya {PW-114:Exh. 633];
Rushikesh Pundarikbhai Hathi [PW-115 : Exh. 634]
and Randeepsinh Harvindarsinh Chhabada [PW- 116
: Exh. 641].
12. The casualties are proved by the Postmortem

Notes Exhs. 170 and 171 proved by Dr. Jayantilal
Virjibhai Sapapara [PW-22 : Exh. 169]; Exhs. 174
& 175 proved by Dr. Vindobhai Virabhai Makwana
[PW-24: Exh. 173]; Exh.177 proved by Dr.
Ramabhai Vitthaldas Patel [PW-25 : Exh. 176];
Exh.179, proved by Dr. Hemantbhai Dahyabhai
Patel [PW-26 : Exh. 178]; Exh. 194, proved by
Dr. Hemant Rameshchandra Parthiv [PW-30 : Exh.
193]; Exhs. 196, 197 & 198 proved by Dr.
Vinodkumar Ambalal Patel [PW-31 : Exh. 195];
Exhs. 201, 202 & 203, proved by Dr. Govindbhai
Dahyabhai Patel [PW-32 : Exh.200]; Exhs. 205 &
206, proved by Dr. Sunilbhai Baldevbhai Patel
[PW-33 : Exh. 204]; Exhs. 350, 351, 352, 353 &
354, proved by Dr. Manishbhai Sutaria [PW-63 :
Exh.349]; Exh.356 & 357, proved by Dr.
Dipeshbhai Maganbhai Patel [PW-64 : Exh.355];
Exhs. 359, 360 & 361, proved by Dr. Ishvarbhai
K. Prajapati [PW-65 : Exh. 358]; Exhs.467 & 468,
proved by Dr. Mayank Manilal Patel [PW-79 : Exh.
466]; Exhs. 470 & 471, proved by Dr. Dipakbhai

Popatbhai Patel [PW-80 : Exh. 469]; Exhs. 492,
493, 557 & 558, proved by Dr. Dharmeshbhai
Somabhai Patel [PW-87 : Exh. 491].
13. The inquest Panchamas Exh.250 is proved by
the panch witness Shilpaben Bakulbhai Doshi [PW-
36 : Exh. 249]; Exh. 252 is proved by Shailendra
Mahendrabhai Ahir [PW-37 : 251]; Exhs. 254 to
256 are proved by the panch witness Suvarnaben
Padyumnabhai Nanavati [PW-38 : Exh. 253]; Exhs.
258 & 259 are proved by the panch witness-Shri
Pravinbhai Madhvadas Patel [PW-39 : Exh. 257];
Exhs. 261 to 263 have been proved by the panch-
witness Rohitkumar Kantilal Patel [PW-40 : Exh.
260]; Exh. 265 is proved by the panch-witness
Rajendrakumar Hiralal Radhanpura [PW-41 : Exh.
Shaileshbhai Prabhulal Thakkar [PW-42 : Exh.
Suketubhai Jamnadas Mehta [PW-43 : Exh. 268];

Exh. 271 is proved by the panch-witness
Jagdishbhai Mulchandbhai Patel [PW-44 : Exh.
270]; Exhs. 273 to 275 are proved by the panch-
witness Bipinsinh Pruthvisinh Chavda [PW-45 :
Exh. 272]; Exh. 277 is proved by the panch
witness Shirishbhai Shashikantbhai Shah [PW-46 :
Exh. 276]; Exh. 279 is proved by the panch-
witness Trilochansingh Avtarsingh Sardar [PW-47
: Exh. 278]; and the inquest panchnama Exh. 281
is proved by the panch witness Nareshkumar
Thanmal Shah [PW-48 : Exh. 280].
14. The injuries to the individuals have been
proved by the medical certificates Exh. 385
proved by Dr. Yogesh Rameshkant Parikh [PW-23 :
Exh. 172]; Exh. 181, proved by Dr. Mukeshbhai N.
Shah [PW-27 : Exh. 180]; Exhs. 182 to 189,
proved by Dr. Kunal Dashrathbhai Patel [PW-28 :
Exh. 182]; Exhs. 191 & 192, proved by Dr.
Gautambhai Vrajlal Nair [PW-29 : Exh. 190];

Exhs. 207 to 223, proved by Dr. Manisha
Pranjivan Dhimer [PW-34 : Exh. 207]; Exhs. 225
to 247, proved by Dr. Pradipkumar Singh [PW-35 :
Exh. 224]; Exhs. 363 to 385, proved by Dr.
Rajendrakumar Bhagirath Joshi [PW-66 : Exh.
362].
15. Handing over of the List Exh.524, the bodies
of the Fidayins and the muddamal articles
recovered from the body of the deceased Fidayins
including two notes in Urdu by Lt. Col. Lamba
[PW-91] to the Divisional Police Officer-Shri
G.L Singhal under Panchnama Exh.440 is proved by
the Panch-Vinodkumar Valjibhai Udhecha [PW-74 :
Exh. 439].
16. Recovery of white coloured AD Gel pen from
the scene of offence under Panchnama Exh. 650 is
proved by the Panch Hareshbhai Chimanlal Shah
[PW-119 : Exh. 649]. The muddamal pen was sent

to the Forensic Science Laboratory under
Panchnama Exh. 621 [Item No. 55] The FSL report
Exh. 668 confirmed that the Urdu writings Exh.
658 were in the same ink as that of the muddamal
pen.
17. Recovery of muddamal articles in the
afternoon of 25th September 2002 [84 in number]
from the temple precincts under Panchnama Exh.
396 is proved by panch- Prakashsinh Ratansinh
Waghela [PW-71 : Exh. 395].
18. Panchnama Exh. 435 of the temple precincts
from Gate No. 3 to the Temple and recovery of
muddamal articles is proved by Panch-
Prakashsinh Ratansinh Waghela [PW-71 : Exh.
395].
19. Recovery of empty bullet of Rifle-303, Rifle
Butt No. 553, disposal of left out hand
grenades, recovery of empties from the fire arms
of the SRP Jawans, the empties produced by I.G
Shri VV Rabari; production and sealing of Dongri
of the police constable, recovery of bullets
from the injured witnesses, production of
clothes of injured PSI-Digvijaysinh Chudasama
and injured witness, the splinters of hand
grenades and bullets recovered from the injured
are proved by the panchnama Exhs. 553, 106, 121,
107, 596, 108, 597, 109, 110, 111 & 160.
20. Panchnama Exh.119 of sealing of two
ammunition pouches recovered from the deceased
Fidayins is proved by Panch-Dilipsinh Bhavansinh
Makwana [PW-1 Exh. 117].
21. Recovery of the disputed signature of witness-

Abdul Wahid [PW-56] in the entry register of Hotel
G.Royal Lodge, Naampalli, Hyderabad and the
collection of his specimen signature collected
under Panchnama Exh.583 is proved by Panch-
Manubhai Chhaganlal Thakker [PW-101 : Exh. 581].
Collection of the natural signature of the witness
Abdul Wahid [PW-56] under Panchnama Exh. 684 is
proved by the investigating officer Shri G.L
Singhal [PW-126 : Exh.679].
22. Seizure of Auto-rickshaw No. GRW-3861
recovered from the compound of the Municipal Staff
Quarters, Shahpur under Panchnama Exh. 128 is
proved by Panch-Suresh Chhotubhai Vasava [PW-12 :
Exh.139].
23. The various places the Fidayins had visited
and the route they had taken in auto-rickshaw No.
GRW-3861 on 22nd September 2002 and the route to
Akshardham on 24th September 2002 was traced by the

accused no.2 under the Panchnama Exh. 682 proved
by Panch-Dipaksinh Ghanshyamsinh Chudasama [PW-62
: Exh.344].
24. House of Abbas [the brother of the accused
no.2 Adam Ajmeri] in which Fidayins and Ayub
[absconding accused no. 23] were provided lodging
was identified by the accused no. 2-Adam Ajmeri
under Panchnama Exh. 580 proved by the Panch-
Jignesh Arvindbhai Shrimali [PW-100 : Exh. 579].
25. Seizure Panchnama Exh.336 of the Passport and
a piece of paper containing telephone numbers, a
telephone diary and electricity bill of February
2003 of the accused no.2 Adam Ajmeri has been
proved by the Panch-Santosh Kumar R.Pathak [PW-59
: Exh. 335].
26. Panchnama Exh.446 of collection of the natural
signature of the accused no. 2 Adam Ajmeri is
proved by the Panch-Mukeshbhai Natwarlal Marwadi
[PW-75 : Exh.445] and recovery of specimen
handwriting of accused no.2 Adam Ajmeri under
Panchnama Exh.448 is proved by Panch-Dineshbhai
Chunaji Parmar [PW-76 : Exh. 447].
27. Seizure Panchnama Exh. 589 of recovery of
Railway Ticket from Ahmedabad-to-Mumbai dated 22nd
April 2002; communication in respect of
cancellation of tickets dated 22nd April 2002;
telephone charge slips and the expense account for
mattresses, fan, petrol, food, hotel from the
residence the accused no.2 Adam Adjmeri has been
proved by the Panch Navinchandra Bechardas Kahaar
[PW-103 : Exh. 585].
28. Seizure of the Accounts Diary from Mehboob-e-

Ilahi Abubakar Karim[PW-82] to prove receipt of
Rs. 10,000/= and Rs. 20,000/= sent from Riyadh and
paid to the accused no.2 Adam Ajmeri under the
Code JIHADunder Panchnama Exh. 481 is proved by
the Panch-Bharatbhai Babulal Parmar [PW-102 : Exh.
584].
29. The accused no. 2 - Adam Ajmeri had identified
the STD/ISD PCO booths used by him for telephonic
talk to Riyadh, Jiddha, Hyderabad, etc. before the
terrorists attacked Akshardham under Panchnama
Exh. 659 proved by Investigating Officer-
Vakhatsinh Devisinh Vanar [PW-112 : Exh. 614].
30. Handing over of the sealed Urdu writings to
Shri S.G Khandelwal, Asstt. Director, Forensic
Science Laboratory under Panchnama Exh. 485 is
proved by the Panch-Shankerbhai Ishwarbhai Kahar
[PW-85 : Exh. 484].

31. Natural handwriting Exh.613 of the accused
no.4 - Abdul Kayum from a diary identified by him
was recovered under panchnama Exh.309 proved by
the Panch Ashok Manaji Marwadi [PW-49 : Exh.308].
Collection of the specimen writing Exh. 698 of
accused no.4-Abdulkayum @ Muftisaab Mohmedbhai
Mansuri under Panchnama Exh. 334 is proved by the
Panch-Arvindbhai Jehabhai Chavda [PW-58 Exh. 333].
The Handwriting Expert Shri Jagdishbhai Jethabhai
Patel [PW-89 : Exh. 507] has proved the opinion
Exh. 511. He opined that the handwriting on
disputed writings A/5/A, A/5/B [Urdu writings
Exh.658] were the same as the natural handwriting
and the specimen writing of the accused no. 4-
Abdulkayum. The report Exh. 511 is also confirmed
by the Expert Report [Mark-T] of Shri R.K Jain,
Directorate of Forensic Sciences, Hyderabad.

32. In the presence of the Panch-Bhikhaji Bachuji
Thakore [PW-61 : Exh. 343], under panchnama
Exh.681, the accused nos. 4 & 5 identified the
place of the last namaaz performed for the
Fidayins and the place where the weapons were
packed. The witness identified the accused nos. 4
& 5 in the Court room.
33. Recovery of muddamal-Ambassador Car No. KMT-
413 from the compound of SOG Camp, Srinagar [J&K]
and the existence/disclosure of concealed cavity
under the rear seat of the car under panchnama
Exh.671 is proved by the Police Inspector-
Shabirahmed-PI [PW-123 : Exh. 670] and the
Assistant Sub-Inspector-Gulammohamad Dar [PW-124 :
Exh. 673].
34. Recovery of the disputed handwriting of
Yusufbhai Valibhai Gandhi [PW-57] from entry no.81
dated 23rd September 2002 and his natural
handwriting from entry nos. 224, 225 & 226 of 24 th
May 2003 & 26th May 2003 from the passenger
register of Gulshan Guest House under Panchnama
Exhs. 317 & 319 have been proved by the Panch-
Poonambhai Narshibhai Parmar [PW-54 : Exh. 318]
and Panch-Ashok Sahadevbhai Kahaar [PW-53:Exh.
316] respectively. The panch-Poonambhai Narshibhai
has also proved recovery of the disputed signature
of the accused no.6-Chandkhan from column No. 13
of the aforesaid entry no.81. The collection of
specimen handwriting of Yusuf Gandhi [PW-57] under
panchnama Exh.321 is proved by Panch-Sajubha
Adarji Thakore [PW-55 : Exh. 320].
35. Accused no. 6 identified STD booths used by
him during his stay on 23rd & 24th September 2002
under Panchnama Exh. 342 proved by Panch-Prahlad
Bagdaji Marwadi [PW-60 : Exh. 341].

36. Accused no. 6 identified the places he
visited and the way to Gulshan Guest House from
Railway Station under Panchnama Exh. 591 proved
by Panch- Natwarbhai Fakirchand Kahar [PW-104 :
Exh. 590].
37. The Taxi Driver Rajnikant [Rajuji] Thakore
identified dead bodies of the Fidayins under
Panchnama Exh. 130 proved by Panch- Bhupatsinh
Chandaji Waghela [PW-5 : Exh. 129].
38. The route of the Fidayins from Kalupur
Railway Station to Akshardham Gate No. 4 is
identified by Taxi driver Rajnikant Thakore [PW-
68] under panchnama Exh. 131- proved by Panch-
Bhupatsinh Andaji Waghela [PW-5 Exh. 129].

39. The prosecution has examined Lt. Col. Jaydeep
Lamba [PW-91::Exh.522] of the Special Task Force
No. 51. He gave evidence before the Court that
the National Security Guard has a base at
Manesar, near New Delhi. The Special Task Force
No. 51 was instructed to counter the terrorist
attack on Akshardham Temple at Gandhinagar; that
a group of 99 commandos headed by the deponent
Lt. Col. Lamba came to Ahmedabad little before
midnight of 24th September 2002. After receiving
some briefing from the local police and the
inmates of the Akshardham temple, the NSG
commandos took over possession of the Akshardham
precincts and counter attacked the Fidayins.
Before the NSG commandos took over possession of
the Akshardham precincts, nearly thirty two
persons had lost their life. He gave evidence how
the terrorist attack was countered by the NSG
commandos. The cross firing continued till around
4:30 in the morning when both the Fidayins died

of the bullet injuries in the counter attack by
the NSG commandos. One NSG Commando died in the
cross-firing. One another who had received injury
was taken to Delhi. He died after nearly a year
of hospitalization. At first the NSG commandos
evacuated 90 persons stranded in the Auditorium.
Thereafter, the search was made. Live explosives
were discharged and destroyed at the very spot.
The NSG Commandos recovered two dead bodies; two
AK 47/56 rifles, live hand grenade; Urdu writing
on two pieces of paper [Exh.658], chocolate, etc.
from the body of the Fidayins. No police official
was present during the search. List Exh.524 of
the dead bodies of the Fidayins and the muddamal
articles recovered from the dead bodies was made.
He admitted his signature on the list Exh.524. He
admitted the signature of Brig. Raj Sitapathi on
the two Urdu write ups written on the pieces of
paper recovered from the body of the Fidayins. He
also deposed that a Maulvi was summoned in the
presence of the deponent to translate the

contents of the write up recovered from the body
of the deceased Fidayins; that the Maulvi
translated the said writing in Gujarati which
meant that the Fidayins were from Atok region of
Pakistan and that the attack on the Akshardham
was organized to retaliate the loss suffered by
the muslims in communal riots in the State of
Gujarat. After operation was called off, the
possession of the Akshardham precincts was handed
over to the Police. The Divisional Police Officer
Shri G.L Singhal received the list [Exh. 524] and
the muddamal articles. He took over the charge of
the Akshardham precincts.
40. The Divisional Police Officer, Gandhinagar
Shri G.L Singhal [PW 12 : Exh.679] has been
examined by the prosecution. The said Shri
Singhal had received message of firing at the
Akshardham temple at Gandhinagar on 24th September
2002 at around 4 :50 in the afternoon.

Immediately he and his staff proceeded towards
Akshardham temple and informed other police
stations of the surrounding areas. The SRP
commandos and the Anti-Terrorist Squad officers
were informed and were summoned to the Akshardham
temple. He admitted the FIR [Exh. 680] lodged by
him. He admitted he had received the muddamal
articles rifles, magazines, hand grenades, write
up in Urdu, as per the List [Exh. 524] from Lt.
Col. Lamba. He admitted receipt of the write up
in Urdu [Exh. 658] counter signed by Brig. Raj
Sitapathi. He admitted that on 3rd October 2002
the investigation was entrusted to the Anti
Terrorist Squad and later on under Order dated
28th August 2003 made by the Director General of
Police, the investigation was transferred to the
Crime Branch, Ahmedabad. Since the date of
incident, on 6th April 2003 he was transferred as
Asstt. Commissioner of Police, Crime Branch,
Ahmedabad City. Pursuant to the order dated 28 th
August 2003, he had taken over investigation from

Shri K.K Patel, Superintendent of Police-ATS. The
information was received about the involvement of
certain young people from Ahmedabad working in
Saudi Arabia. One Asfaq Bhavnagari [PW-50] was
brought before the deponent for interrogation. On
interrogation of the said Asfaq Bhavnagari, names
of certain accomplices viz., Salim Shaikh, Altaf
Malek; Maulvi Abdulla, Adam Ajmeri were
disclosed. It was also disclosed that the attack
was conceived and funded by the agents of
terrorist groups Laksher-E-Toiba and Jaish-E-
Mohammadresiding in Saudi Arabia. On disclosure
of the said facts, the alleged accomplices were
rounded up and brought before the police. After
ascertaining their complicity, they were arrested
on 29th August 2003. In view of the involvement of
prohibited terrorist groups, provisions of the
POTA were invoked. In course of the
investigation, the police had recorded statements
of witnesses Nasir Doman, Munaf Radiator, Abdul
Wahid, Abdul Rehman Panara, Mehboob Ilahi and

others. He had arranged for recording of the
statements of witnesses under Section 164 CrPC,
the confessional statements made by the accused
under Section 32 of the POTA, for recovery of the
muddamal articles pursuant to the disclosures
made by the accused in their confessional
statements. The Police Officer Shri V.D Vanar
[PW-112] was despatched to Bareily and the Sub
Inspector Shri I.K Chauhan [PW-125] was
dispatched to Kashmir to recover the muddamal car
and to collect the necessary information. Sub
Inspector M.D Chaudhary [PW-110] was dispatched
to Hyderabad for recovery of muddamal articles.
The deponent prepared panchnama of collecting the
disputed signatures of the accused and their
natural signatures. He made investigation in
respect of the phone calls. He admitted his
signature on the panchnama Exhs.334, 345, 347,
483, 556, 681, 580, 450, 682, 660, 446, 448, 319,
307, 683, 684, 697 & 698 of recovery of muddamal
articles, sent the muddamal articles for

examination by the Forensic Science Laboratory.
He proved the Laboratory Reports Exhs. 685, 686,
688, 690, 692, 694, 516. He made the panchnama of
the place where the deceased Fidayins had been
given shelter and the place where namaaz for
their well being was performed. He proved the
laboratory reports and the reports of the
handwriting experts.
41. The prosecution has examined the
Investigating Officer Police Inspector Shri
Vinodbhai Tolia [PW 113:Exh. 618]. The deponent
Mr. Tolia was the police officer who had received
the message of the terrorist attack on Akshardham
temple at Gandhinagar, and was one of the first
police officers to reach there at around 4.55 in
the afternoon of 24th September 2002. He and the
Divisional Police Officer Shri Singhal tried to
evacuate the injured and other people from the
temple precincts. They tried to counter the

terrorist attack with the help of SRP platoon.
Some SRP personnels were injured; one SRP
constable died on the spot. He took the injured
SRP personnel to the Civil Hospital, Gandhinagar.
He returned back to duty at Akshardham. After FIR
was lodged by Shri Singhal, the offence
punishable under Section 302, 307 IPC, the Arms
Act, Explosive Substances Act, Bombay Police Act
was registered at Police Station CR No.I 314/02.
The investigation was entrusted to the deponent
Shri Tolia. Considering the gravity of the
offence, he had summoned finger print experts,
sniffer dogs, Videographer, Photographer, FSL
personnel, Panch to the place of the offence and
had started the search and recovery in the
presence of the panch at around 12 in the noon
and continued upto 10 O'Clock at night. The
search was carried out at Gate No. 3 from where
the deceased Fidyains had entered, their movement
was traced to the place they were killed in the
encounter. He had made the panchnama of the

recovery of the empties, of the places of hand-
grenade explosions; of the places of firing; of
the recovery of the blood samples of the injured
and the dead; of the articles collected from the
bodies of the deceased, of recovery of the air
bag, bed-roll, etc, left by the Fidayins at Gate
No.3. The live hand grenades were destroyed by
the Bomb Disposal Squad. He had made the Inquest
report of the deceased Fidayins. The Panchnama
Exh. 106 of the live hand grenades disposed by
the Bomb Disposal Squad was made. He had recorded
the panchnama of the recovery of the clothes, AK
56 rifles, magazines, empties, dry fruit,
pouches, etc. recovered from the body of the
deceased Fidayins by the NSG team leader Shri
Sitapathi. He has admitted his signature on the
panchnama of the recovery of the mudammal
articles. He has deposed about the recovery of
two Urdu write-ups on the body of the Fidayins
and summoning of Maulvi- one Malek Bapu [PW-121
Exh.657]. The said Maulvi had read out the Urdu

writing transcribed in Gujarati script [Exh.775].
42. The prosecution has examined the Deputy
Inspector General of Police-Shri Virambhai
Visabhai Rabari [PW-72:Exh.437]; the District
Superintendent of Police, Gandhinagar Shri
Rajendra Kumar Babulal Brahmbhatt [PW-81 : Exh.
475]; the Police Station Officer, Sector-7,
Gandhinagar Shri Natwarlal Shankerlal Joshi [PW-
86 : Exh.486] who were present on duty at
Akshardham Temple.
43. The prosecution has examined Police
Inspector Shri Prakashchandra Ramjibhai Mahera
[PW-105 : Exh. 592]. The said Shri Mahera had
received the message of attack on Akshardham
temple on 24th September 2002. He had immediately
proceeded to Akshardham temple and had remained
on duty throughout the night and the early hours
of the next day. He had received the muddamal

articles recovered by Lt. Col. Lamba from the
person of the dead Fidayins as per List Exh. 524
under panchnama Exh. 440. He has admitted his
signature on the Inquest panchnama Exh. 267.
44. The prosecution has examined the Police Sub-
Inspector Shri Gambhirsinh Vajesinh Padheriya
[PW-106 : Exh. 594]. The said Shri Padheriya,
though was on leave, had on receipt of the
message of attack on Akshardham Temple,
proceeded to Akshardham Temple and reported for
duty. He was on duty throughout the night and
till the next day. He has admitted recovery of
muddamal articles, empties, clothes of the
injured persons, splinters of hand grenades and
bullets recovered from the bodies of the
injured. He has admitted his signature on the
panchnama of the recovery of the muddamal
articles.
45. The Police Sub-Inspector Shri Padamsinh
Vakhatsinh Champavat [PW : 107 : Exh.500] has
been examined by the prosecution. The said
witness Shri Champavat was a member of the
special investigation team in respect of the
Akshardham incidence. He had recorded the
statements of the injured. He recovered the
muddamal bullets recovered from the bodies of
the injured. He admitted his signature on the
panchnama of the recovery of the muddamal
articles.
46. The Police Inspector Shri Mansinhbhai
Devjibhai Chaudhry [PW-110 : Exh.611] was the
police officer who made investigation in respect
of the accused no. 2 Adambhai Sulemanbhai Ajmeri
who had visited Hyderabad and had stayed at
Royal-G hotel.
47. The Police Inspector Rameshbhai Ishwarbhai
Patel [PW-111 : Exh. 612] had on 31st August 2003
accompanied the accused no.2 Adambhai
Sulemanbhai Ajmeri to recover the muddamal auto-
rickshaw No. GRW-3861 used by the accused no. 2
Adambhai Sulemanbhai Ajmeri for carrying the
Fidayins for recci of Ahmedabad City and the
places around the city, including the Akshardham
temple. He has also admitted recovery of the
specimen signature and the natural signature of
the accused no.4 Abdulkayum @ Muftisaab
Mohmedbhai Mansuri at the direction of the
accused Abdulkayum and the recovery of the
muddamal article Exh. 105. On 2nd September 2003,
he had accompanied the witness Abdul Rehman
Panara [PW-51] to recover the SIM card of the
accused no. 2 Adambhai Sulemanbhai Ajmeri. He
has admitted recovery of the muddamal article
Exh. 107 under panchnama Exh. 394. On 3rd

September 2003, he had searched the house of the
accused no.5 Maulana Abdulmiya to recover his
passport, muddamal article 108 under panchnama
Exh. 346.
48. The Police Sub-Inspector Shri Vakhatsinh
Devisinh Vanar [PW-112 : Exh. 614] had
accompanied the accused no. 2 Adambhai
Sulemanbhai Ajmeri to locate the telephone booth
which was used by the said accused in connection
with the Akshardham attack. He has admitted
recovery of muddamal articles 99, 109, 121, 337
to 340; 586 to 588 and his signature on the
panchnama Exhs. 336, 481, 477, 480, 478, 483,
589 and 342. He had taken the accused no. 6
Chandkhan to Bareily and had made investigation
at Bareily.
49. The Police Inspector Ibrahim Kalabhai

Chauhan [PW 125 : Exh. 675] was the officer who
had made investigation at Anantnag in Kashmir.
He had obtained the order from the Chief
Judicial Magistrate, Badgam on 9th October 2003
for recovery of possession of the Ambassador Car
No. KMT-413. He admitted his signature on the
recovery panchnama Exh.671.
50. The Deputy Commissioner of Police,
Intelligence-Shri Sanjaykumar Gadhvi [PW-78 :
Exh.452] has been examined by the prosecution.
The said witness had recorded the confessions
Exhs. 454, 456, 458, 460 & 462 of the accused
nos. 3,1,2, 4 & 6 under Section 32 of the POTA.
51. The prosecution has examined the Chief
Judicial Magistrate Shri S.M Padhya [PW-
99:Exh.568] before whom the accused nos.1, 2, 3,
4 & 6 were produced after they made the
confessional statements Exhs. 456, 458, 454, 460

and 462 under Section 32 of the POTA.
52. The Judicial Officer Shri V.R Raval [PW-73 :
Exh. 438] has proved the confessions Exhs. 539,
540 & 541 made under Section 164 CrPC by the
witnesses Asfaq Bhavnagari [PW-50]; Abdul Rehman
[PW-51]; and Mohammed Munnaf [PW-52].
53. The Judicial Officer Shri Shaileshkumar
Hiralal Oza [PW-95 : Exh.542] has proved the
confessional statements Exhs. 543 & 544 made
under Section 164 CrPC by the witness Abdul
Wahid [PW-56] and Mehboob Ilahi Abubakker [PW-
82].
54. There cannot be a dispute in respect of the
commission of offence and the manner in which it
was committed and there is none.

55. Learned advocate late Mr. H.N Jhala had
appeared for the accused no.1 Altafhussain
Akbarhussain Malek, the appellant no.1 in
Criminal Appeal No.1328 of 2006. He assailed the
judgment of the learned Special Judge, in so far
as the accused no.1 is convicted and the
sentence of rigorous imprisonment for five years
is imposed upon him.
Mr. Jhala had submitted that the retracted
confessional statement unless corroborated by
other evidence on record cannot be relied upon.
In the present case, the conviction of the
accused No. 1 Altafhussain Akbarhussain Malek is
based on confessional statement alone. In
absence of any independent evidence of the
complicity of the accused no. 1-Altafhussain, he
ought to have been acquitted. The conviction and

the sentence imposed upon him deserve to be set-
aside. In support of his submission, he had
relied upon the judgment in the matter of
Parmananda Pegu v. State of Assam [2004 SCC
(Criminal) 2081].
56. Learned advocate Mr. Pathan has appeared for
the accused no.6-the appellant in Criminal
Appeal No. 1675 of 2006. He has assailed the
judgment of the learned Special Judge. He has
relied upon the evidence of one Shahirahmed,
P.I., Baramulla [J&K] (PW 123 Exh. 670) and of
the panch Gulammohmad [PW 124 : Exh. 673].
He has submitted that involvement of the accused
no.6-Chandkhan has not been proved. The muddamal
Car No. KMT-413 was not recovered from the
accused no.6-Chandkhan. The prosecution has
failed to establish that the accused Chandkhan

was the owner of the muddamal car or that he
ever was in possession of the muddamal car. He
has also questioned the genuineness of the
confessional statement Exh.462 made by the
accused-Chandkhan. He has submitted that it is
impossible that an eighteen page confession was
written within two hours.
57. Learned advocate Mr. Majid Memon has
appeared for the accused. He has pointed out
that though the investigation was entrusted to
the ATS a team of police personnel specially
trained in these matters the ATS could not make
any head way. For nearly one year not a single
arrest was made nor was anything discovered
leading to the accused persons. Nevertheless,
all of a sudden, apparently without any reason,
the investigation was transferred back to the
crime branch. Even before the order of transfer
of investigation was made and the papers were
returned to the crime branch, the crime branch

started acting recorded statements of witnesses
and made arrest of the accused persons. In the
submission of Mr. Memon, the very factum that
the investigation was transferred to the crime
branch and that the crime branch started acting
within moments smacks mala fides. He has
submitted that none of the accused was named in
the FIR; there was nothing in the investigation
leading to the accused persons. Nevertheless,
the case was attempted to be made out against
the accused persons. He has submitted that in
fact, it is the police who has entered into a
conspiracy to implicate the accused persons.
58. Mr. Memon has drawn our attention to the
observations made by the learned Special Judge
in respect of the conduct of the defence lawyers
in course of recording evidence of one Abdul
Rehman Gulam Hussain Panara [PW-51 : Exh.314].
He has submitted that the observations made by

the learned Special Judge discloses her bias.
The Applications no. 305, 310, 311 & 311A and
319 CrPC made under Section 319 CrPC were most
appropriate. The learned Special Judge was not
charitable in attributing tactics to the defence
counsel.
59. We have carefully perused the objection-able
part of the judgment, the evidence of the
witness Abdul Rehman [PW-51] and the aforesaid
applications made under Section 139 CrPC and the
orders made thereunder. We find that the
identity of the aforesaid Abdul Rehman Hussain
Panara [PW-51 : Exh. 314] was not disclosed
earlier. The said witness in his examination-in-
chief had supported the prosecution. However, on
account of the aforesaid applications made under
Section 319 CrPC, the time was whiled away in
conducting those applications made under Section
319 CrPC and in making order on the said

applications. Thereby, the cross examination of
the said witness Abdul Rehman [PW-51] could not
be commenced on the same day. By the next date,
in the cross examination, the said Abdul Rehman
took a somersault and gave totally contradictory
evidence. We find that the ire of the learned
Special Judge was wholly justified. It is
apparent that the defence counsel bought time.
During that time, the witness Abdul Rehman [PW-
51] was won over.
60. Mr. Memon has submitted that the entire case
against the accused persons is based on the
confessional statements allegedly made by the
accused. He has questioned the admissibility of
the aforesaid confessional statements. He has
submitted that such statements were never made
by the accused persons. They were concocted.
Even if the statements were genuine, they are
not admissible in evidence. There are inherent
lacune in recording of the said statements. He

has submitted that under the ordinary law of
evidence, such statements are not admissible in
evidence. However, as they are made admissible
in evidence under the POTA, the law has also
provided certain safeguards. He has submitted
that the recording officer, with a view to
ensuring that the statement proposed to be made
by the accused person is made of his own
volition and the accused person is not under
pressure or duress from the police, was required
to elicit specific answer to the questions {a}
why are you making confession; {b} since when
are you in the police custody and whether you
are ill treated or tortured; {c} in case you do
not make confession, I am bound not to send you
back to the police custody; {d} whether any one
has induced you or coercion made or promised you
or allured you to make confession. He must
specifically inform the accused that, I am not
part of the investigation team. I am
independent. The confession made before me is

admissible in evidence. After thus ensuring that
the accused person was ready to make
confessional statement of his free will and that
the accused person properly understood the
implication of his making the confessional
statement, the recording officer must give time
to the accused for reflection. After such
reflection, once again, he shall elicit answer
to the aforesaid questions. He must ensure that
the time for reflection given to the accused was
adequate. After recording confession, the
accused should be sent to the judicial custody.
In the present case, nothing of the kind was
done. He has relied upon the evidence of the
recording officer one Shri Sanjay Gadhvi, Deputy
Commissioner of Police, Ahmedabad City [PW-78 :
Exh. 452] and the evidence of the Chief Judicial
Magistrate Shri S.M Padhya,[PW-99 : Exh. 568].
He has submitted that in absence of strict
observation of the aforesaid procedural safe
guards, the confessional statements are not

admissible in evidence. In support of his
submissions, he has relied upon the judgments of
the Hon'ble Supreme Court in the matters of
Ranjit Singh alias Jita & Ors. vs. State of
Punjab [AIR 2002 SC 3247]; of Ayyub etc. vs.
State of UP [AIR 2002 SC 1192]; of Hardeep Singh
Sohal, etc. vs. State of Punjab through CBI [AIR
2004 SC 4783]; of Nazir Khan & Ors. vs. State of
Delhi [AIR 2003 SC 4427]; of State of
Maharashtra vs. Siraj Ahmed Nisar Ahmed & Ors.
[2007 (2) SCC Crime 472]; of Bheru Singh S/o
Kalyan Singh v. State of Rajasthan [1994 (2) SCC
467]; of Chandrakant Chimanlal Desai v. State of
Gujarat [1992 (1) SCC 473]; of Patel Himat
Mohanbhai & Ors. v. State of Gujarat [1997 (1)
GLH 155]; of State [NCT of Delhi] vs. Navjot
Sandhu alia Afsan Guru [2005 SCC Cr. 1715]; of
Bharat v. State of U.P [1972 SCC (Cri.) 198]; of
Parmananda Pegu v. State of Assam [2004 SCC
(Cri.) 2081]; and of Sharad Biridhichand Sarda
v. State of Maharashtra [AIR 1984 SC 1622]. He

has further submitted that in any view of the
matter, the accused persons retracted from the
said confessional statements. Therefore also,
the said statements could not have been relied
upon.
61. Learned Special Public Prosecutor Mr.
Panchal has appeared for the State. He has
supported the judgment of the learned Special
Judge. He has submitted that the confessional
statements made by the accused are the
substantive piece of evidence. Conviction can be
based solely on the confessional statement. A
retracted confessional statement would need
corroboration but not in all minute details. He
has distinguished the above referred judgments
relied upon by Mr. Memon. In the submission of
Mr. Panchal, in the present case, the
confessional statements made by the accused
persons were recorded after observation of all

procedural safe guards and are supported by
other evidence.
He has submitted that the retractions made by
the accused are an after-thought. Inspite of the
written retractions, the confessions made by the
accused can be relied upon and conviction can be
based solely on such confessions. He has
submitted that all that is required is
corroboration. In the present case, the
confessions made by the accused are corroborated
by the other evidence on record. The confessions
are, therefore, rightly relied upon by the
learned Special Judge to record conviction of
the accused.
Mr. Panchal has submitted that the defect in
investigation or lapse in investigation shall
not vitiate the conviction or the sentence.

He has next submitted that there cannot be a
direct evidence of criminal conspiracy. In the
cases like the present, the common object is
carried out under utmost secrecy. All persons
involved in the conspiracy are not known to one
another. The accomplice generally knows the
person who recruits him and the persons whom he
recruits and none other. The offence is,
therefore, required to be proved by
circumstantial evidence. In the present case,
the prosecution has successfully established the
commission of offence of criminal conspiracy and
the involvement of the accused.
He has next submitted that the offence committed
is indeed a rarest of rare cases. Innocent
persons were targeted without any reason or
provocation. The conspiracy was well-planned and
was intended to kill the people without

discrimination. Had the fidayins been able to
reach to the museum where 90 persons were
stranded, the casualties would have been far
greater. He has, therefore, submitted that the
death sentence imposed upon the accused nos.2,4
and 6 be confirmed.
In support of his submissions, he has relied
upon the judgments in the matters of Jayawant
Dattatraya Suryarao v. State of Maharashtra
[2002 SCC Cri. 897]; of Devender Pal Singh v.
State of NCT of Delhi & Anr. [2002 (1) SCC Cri.
978]; of Ravinder Singh @ Bittu v. State of
Maharashtra [AIR 2002 SC 2241]; of State [NCT of
Delhi] vs. Navjot Sandhu alia Afsal Guru [2005
SCC Cri.1715]; of State of Maharashtra v. Bharat
Chaganlal Raghani & Ors. [2002 SCC (Cri.) 377];
of Lal Singh vs. State of Gujarat & Anr. [AIR
2001 SC 746]; of State of Rajasthan vs. Ajit
Singh & Ors. [(2008) 1 SCC (Cri.) 287]; of Yash

Pal Mital v. The State of Punjab [AIR 1977 SC
2433]; of State of Tamil Nadu through
Superintendent of Police CBI/SIT v. Nalini &
Ors. [AIR 1999 SC 2640]; of State of Rajasthan
v. Kishore [1996 Cr.LJ 2003]; of State of W.B v.
Mir Mohammad Omar & Ors. [200 Cr.LJ 4047]; of
Rotash v. State of Rajasthan [2007 (2) SCC Cr.
382]; of Krishna Mochi & Ors. v. State of Bihar
[2002 (2) SCC Criminal 1220]; of Lehna v. State
of Haryana [2002 (1) SCC Criminal 526]; of Ravji
alias Ram Chandra v. State of Rajasthan [1996
SCC Criminal 225]; of Gurdev Singh & Anr. vs.
State of Punjab [AIR 2003 SC 4187] and of
People's Union for Civil Liberties & Anr. vs.
Union of India [2005 SCC (Cri) 1905].
62. In the matter of Ranjit Singh alias Jita &
Ors. [Supra], the Hon'ble Supreme Court has
enumerated certain matters which should be taken
care of before a confessional statement is

recorded. The matter before the Hon'ble Supreme
Court arose from a conviction recorded under the
Terrorist & Disruptive Activities [Prevention]
Act, 1987 [hereinafter referred to as, the Act
of 1987]. In respect of confessional statement
made before the Police Officer admissible in
evidence under Section 15 of the Act of 1987,
the Hon'ble Court has observed, ..In case the
recording officer of the confessional statement
on administering the statutory warning to the
accused forms a belief that the accused should
be granted some time to think over the matter,
it becomes obligatory on him to grant reasonable
time for the purpose to the accused. In other
words, the cooling time that is granted has to
be reasonable. What time should be granted would
of course depend upon the facts and
circumstances of each case. At the same time,
however, when the time to think over is granted
that cannot be a mere farce for the sake of
granting time. In a given case, depending on

facts, the recording officer without granting
any time may straightway proceed to record the
confessional statement but if he thinks it
appropriate to grant time, it cannot be a
mechanical exercise for completing a formality.
On the facts of the case, the Court held, ..he
gave to the accused 20 to 30 minutes to think
over whether they wanted to give the
confessional statements, this time was given
after the accused were administered statutory
warning in the similar fashion as was done by
PW-3. It seems to be quite strange that both the
officers though recorded confessional statements
of the accused each separately thought that half
an hour or 20 minutes would be sufficient
cooling time to be given to the accused who are
being brought before them from police custody of
18-20 days and had expressed, according to these
officers, their willingness to make confessional
statements. On the facts, half an hour cooling
time given to the accused to think over before

recording their confessional statements was not
considered to be a reasonable time. The Court
did not think it safe to base conviction on such
confessional statements. The Court observed,
..Further, on the facts of the present case,
conviction cannot be maintained on sole
testimony of two police officials.
63. The matter of Ayyub, etc. {Supra} was once
again a case of conviction under the Act of
1987. The Hon'ble Supreme Court took notice of
mandatory provisions contained in Section 15 of
the Act of 1987 and in Rule 15 of the Rules made
thereunder. The Court noted that the aforesaid
Section 15 and Rule 15 requires certain
procedure to be followed by the police officer
recording the confessional statement. It was
imperative for such officer to record his belief
that he had reason to believe that it was being
voluntarily made. The Court noted, ..In the

instant case, the conession [sic. confession]
made by these two appellants does not indicate
that the same was voluntary in nature and the
police officer who recored the same has not
certified that he believed the confession was
voluntarily made. While considering the scope
and ambit of Section 15 of the Act of 1987, the
Court held, ..As the confession made under
Section 15 of the TADA Act is made admissible in
evidence, the strict procedure laid down therein
for recording confession is to be followed. Any
confession made in defiance of these safeguards
cannot be accepted by the Court as reliable
evidence. The confession should appear to have
been made voluntarily and the police officer who
records the confession should satisfy himself
that the same had been made voluntarily by the
maker of that statement. The recorded confession
must indicate that these safeguards have been
fully complied with. In this case, the recorded
confessional statements do not show that the

officer who recorded that statement had followed
those guidelines. Therefore, it is inadmissible
in evidence.
64. In the matter of Hardeep Singh Sohal
{Supra}, the confessional statement recorded
under Section 15 of the Act of 1987 was held
inadmissible in evidence. The Court noted that
the accused Balwinder Singh who had made the
confession had later escaped from the custody
before the charge was framed by the Court and he
was treated as a proclaimed offender by the
Court. As the accused Balwinder Singh was not
tried along with the other accused-appellants,
the confessional statement made by the accused
Balwinder Singh was not admissible in evidence
against the co-accused - the appellants.
65. In the matter of Nazir Khan & Ors. [Supra],

the Hon'ble Supreme Court has discussed the
admissibility of confessional statements made
under the Act of 1987 in evidence. After
considering the case-law on the point, the Court
held, ..So the crux of making a statement
voluntarily is, what is intentional, intended,
unimpelled by other influences, acting on one's
own will, through his own conscience. Such
confessional statements are made mostly out of a
thirst to speak the truth which at a given time
predominates in the heart of the confessor which
impels him to speak out the truth. Internal
compulsion of the conscience to speak out the
truth normally emerges when one is in
despondency or in a perilous situation when he
wants to shed his cloak of guilt and nothing but
disclosing the truth would dawn on him. It some
times becomes so powerful that he is ready to
face all consequences for clearing his heart.
....A confession or admission is evidence
against its maker, if its admissibility is not

excluded by some provision of law. Law is clear
that a confession cannot be used against an
accused person unless the Court is satisfied
that it was voluntary. At that stage, the
question whether it is true or false does not
arise. If the facts and circumstances
surrounding the making of a confession appear to
cast a doubt on the voluntariness of the
confession, the Court may refuse to act upon the
confession, even if it is admissible in
evidence. The question whether a confession is
voluntary or not is always a question of fact. A
free and voluntary confession is deserving of
highest credit, because it is presumed to flow
from the highest sense of guilt. In principle
and Digest of Law of Evidence Vol. I., New Edn.
By Chief Justice M. Monir, after noticing
conflicting view and discussing various
authorities, the learned author summarized the
position as follows.
The rule may therefore, be stated to be that
whereas the evidence in proof of a
confession having been made is always to be
suspected, the confession, if once proved to
have been made and made voluntarily, is one
of the most effectual proof in the law.
66. In the matter of State of Maharashtra
[Supra], similar was the matter at issue. The
Hon'ble Court has reiterated the guidelines set-
out for the police officer recording the
confessional statement under Section 15 of the
Act of 1987 as under :-
[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.
The Court held, ..From the aforementioned
statements of law enunciated by this Court, it
is apparent that considerable amount of
confidence has been reposed in the senior police
officials for recording the confessional
statement. A confession statement to police is

not admissible under the general law connected
with administration of criminal justice, which
is made admissible under the TADA Act, and
therefore, strict compliance with the procedure
prescribed under section 15 of the TADA Act read
with Rule 15 of the TADA Rules is expected to be
followed. Any confession made in defiance of the
safeguards provided therein would not be relied
upon by a Court. The confession should be made
voluntarily without there being any force or
pressure put on, or allurement or inducement
given to, a person who is voluntarily admitting
his guilt. Under Section 25 of the Evidence Act,
a confession made to the police officer is not
admissible in evidence to be considered by a
court. Although there are certain exceptions in
the preceding provision, but the fact remains
that as a rule a confession made to the police
officer is not made admissible under the
Evidence Act. The idea appears to be that any
statement made to the police officer who is

connected with the investigation and prosecution
of a person, would not be taken as evidence.
Under Section 15 of the TADA Act, if a
confession made by the accused to a police
officer not lower than the rank of
Superintendent of Police is made admissible, it
would still be a confession made to the police
officer, and thus inbuilt safeguards have been
provided under Section 15 of the TADA Act read
with Rule 15 of the TADA Rules so as to lend
credence to the confession made to the police
officer, it being voluntary and without any
force or pressure and allurement or inducement.
The Constitution Bench of this Court in Kartar
Singh has laid down the condition to establish
the voluntary nature of the confession.
67. In the matter of Bheru Singh S/o. Kalyan
Singh [Supra], the Hon'ble Court was examining
the admissibility of the confessional statement

made under Section 164 CrPC in respect of
offence punishable under Section 302 IPC. In
paragraph 20 of the judgment, the Court has
discussed the precautions to be taken by the
Judicial Magistrate recording the confession.
The Court noted that the accused was brought by
the police before the Judicial Magistrate First
Class on 8th June 1988. The Magistrate sent the
accused to the judicial custody, to be brought
back on the next day. The accused was remanded
to the judicial custody with a direction to be
kept separately from the other co-accused
persons. The accused was produced before the
judicial magistrate on 13th June 1988 and made a
statement in the Court. He was cautioned, he is
free to give or not to give the statement and in
case he gives the statement, it may be read
against him... ..That his statement would be
recorded only if he wanted to make it
voluntarily and of his own free will. The
accused was given 24 hours' time with a

direction to the Jailor to allow the accused to
stay in jail in the place of his own choice so
as to enable him to reflect and give a cool
thought as to whether or not he wanted to make a
confessional statement. The accused was assured
that he would not be sent to the police custody
in case he did not want to make the statement.
The statement was recorded only after the
accused expressed his desire to make the
statement. The Court noted, ..The learned
Magistrate took all steps to remove any trace of
fear from the appellant and observed the
formalities envisaged by Section 164 (3) CrPC
before recording the statement Exh. P-2 under
Section 164 CrPC.
68. In the matter of Chandrakant Chimanlal Desai
[Supra], the Hon'ble Supreme Court set aside the
conviction for offence punishable under Section
302 IPC based on the confessional statement. The

Hon'ble Court observed, ..The High Court has on
the other hand made this confessional statement
as the basis and has then gone in search for
corroboration. ...As held in the decision cited
above only if on such consideration on the
evidence available, other than the confession a
conviction can safely be based then only the
confession could be used to support that belief
or conclusion. ...The whole approach of the High
Court was to make confessional statement the
basis and then find out if the facts stated
therein were corroborated in material
particulars by other evidence, instead of
analyzing the evidence first and trying to find
out whether the evidence is reliable and the
facts established are consistent with the guilt
of the accused. With respect, the High Court
failed to realize that there were statements in
the confessional statement which provided
intrinsic evidence of police interference for
otherwise how could accused 1 have mentioned

about having seen Noorbibi when he must have
seen several others also. The trial Court had
critically examined the recording of the
confessional statement and held that the
Magistrate had not taken sufficient precautions
before recording the evidence in order to ensure
that the statement was voluntary.
69. In the matter of Patel Himat Mohanbhai &
Ors. [Supra], the Division Bench of this Court
had occasion to examine the conviction for
offence punishable under Section 302 IPC based
on the confession made by the accused. The Court
observed, ..The Magistrate is also required to
inquire as to whether the accused has been
influenced by anyone to make any such
confession. The Magistrate also would be
required to lend assurance to the accused that
he would not be sent back to police custody in
case he did not make the confessional statement.

The Magistrate recording the confessional
statement also should question the accused as to
why he wanted to make the confession or as to
what had prompted him to make the confession.
...it is abundantly clear that, he had [the
Magistrate], of course, cautioned the accused
no. 2 that he was not bound to make any
confession and that, if he prefers to make any
confession before him, the said could be
utilized against him as the evidence. But,
excepting this, the learned Magistrate has not
done anything more. He has not preferred to
perform the entire exercise as pointed out by
the Supreme Court in detail in the above quoted
paragraph. It could not be urged that Mr. Tanna
had made it clear before the accused No. 2 that
he was a Magistrate and that the confession was
being recorded by him in that capacity. Mr.
Tanna has also not made any inquire to find out
whether the accused No. 2 had been influenced by
any one to make the confession. Mr. Tanna has

also not made it sure as to whether the police
had induced the accused No.2 to give the
statement. It was also not assured to accused
No. 2 that he would not be sent back to police
custody, in case he did not make the
confessional statement. In the same way the
learned Magistrate had not questioned the
appellant as to why he wanted to make the
confession or as to what had prompted him to
make the confession. Thus, it appears that the
learned Magistrate has not performed the
requisite exercise for recording a confessional
statement as pointed out by the pronouncement of
the Apex Court and that, he had satisfied
himself, only by cautioning accused no.2 that,
he was not bound to make any such confessional
statement and that if he prefers to make any
such statement the same could be utilized
against him in evidence.

70. In the matter of Navjot Sandhu alias Afsan
Guru [Supra], the Court was examining the
confession made under the Act of 1987. The Court
has discussed the procedural safeguards in the
Act of 1987 and their impact on confessions. The
Hon'ble Court has held that the procedural safe
guards provided under sub-sections 2, 3 & 4 of
Section 15 of the Act of 1987 stem from the
guarantee enshrined in Articles 21 and 22 (1) of
the Constitution. The Court has also held that,
..In our considered view, the violation of
procedural safeguards under Section 52 does not
stand on the same footing as the violation of
the requirements of sub-sections (2) to (5) of
Section 32. As already observed, sub-sections
(2) to (5) of Section 32 have an integral and
inseparable connection with the confession
recorded under Section 32 (1). They are designed
to be checks against involuntary confessions and
to provide an immediate remedy to the person

making the confession to air his grievance
before a judicial authority. These safeguards
are, so to say, woven into the fabric of Section
32 itself and their observance is so vital that
the breach thereof will normally result in
eschewing the confession from the consideration,
subject to what we have said about the judicial
custody. The prescriptions under Section 52,
especially those affording an opportunity to
have the presence of the legal practitioner, are
no doubt supplemental safeguards as they will
promote the guarantee against self-incrimination
even at the stage of interrogation; but these
requirements laid down in Section 52 cannot be
projected into Section 32 so as to read all of
them as constituting a code of safe guards of
the same magnitude. To hold that the violation
of each one of the safeguards envisaged by
Section 52 would lead to automatic invalidation
of the confession would not be in consonance
with the inherent nature and scheme of the

respective provisions. However, we would like to
make it clear that the denial of the safeguards
under sub-sections (2) to (4) of Section 52 will
be one of the relevant factors that would weigh
with the court to act upon or discard the
confession. To this extent they play a role vis-
a-vis the confessions recorded under Section 32,
but they are not as clinching as the provisions
contained in sub-sections (2) to (5) of Section
32. ...The very fact that he will not be under
the fetters of police custody after he is
produced before the CJM pursuant to Section 32
(4) would make him feel free to represent to the
CJM about the police conduct or the treatment
meted out to him. The Court further held that,
..the time of 5 or 10 minutes is, by all
standards, utterly inadequate.
71. In the matter of Bharat vs. State of U.P
[Supra], the Court has considered the

evidentiary value of a retracted confession.
The Court held, ..A Court may take into account
the retracted confession, but it must look for
the reasons for the making of the confession as
well as for its retraction, and must weigh the
two to determine whether the retraction affects
the voluntary nature of the confession or not.
If the court is satisfied that it was retracted
because of an after-thought or advice, the
retraction may not weigh with the court if the
general facts proved in the case and the tenor
of the confession as made and the circumstances
of its making and withdrawal warrant its user.
All the same, the courts do not act upon the
retracted confession without finding assurance
from some other sources as to the guilt of the
accused. Therefore, it can be stated that a
true confession made voluntarily may be acted
upon with slight evidence to corroborate it,
but a retracted confession requires the general
assurance that the retraction was an

afterthought an that the earlier statement was
true.
72. In the matter of Parmananda Pegu v. State
of Assam [Supra], the Hon'ble Court reiterated
the principles of evidentiary value of a
retracted confession.
73. In the matter of Sharad Biridhichand Sarda
v. State of Maharashtra [AIR 1984 SC 1622], the
Court observed, ...It is well settled that the
prosecution must stand or fall on its own legs
and it cannot derive any strength from the
weakness of the defence. ...It is not the law
that where there is any infirmity or lacuna in
the prosecution case, the same could be cured
or supplied by a false defence or a plea which
is not accepted by a Court.

74. In the matter of Jayawant Dattatraya
Suryarao [Supra], the Hon'ble Supreme Court
considering the admissibility and evidentiary
value of the confessional statements recorded
under Section 15 of the Act of 1987, rejected
the contention that the confessional statements
of the accused were recorded by the Police
Officers when the accused were in police
custody; after recording the confessional
statements, they were not produced before the
Judicial Magistrate and the confessional
statements were sent to the Chief Judicial
Magistrate concerned after lapse of time,
thereby committing breach of Rule 15 of the TADA
rules and therefore, the confessional statements
were not admissible in evidence and in any case,
they were not voluntary, reliable and truthful.
On the evidentiary value of confessional
statements, the Hon'ble Court observed, ..It is
true that if the confessional statement are

taken as they are, the accused can be convicted
for the offences for which they are charged as
the said statements are admissible in evidence
and are substantive pieces of evidence. However,
considering the facts of the case, particularly
that the confessional statements were recorded
by the police officer during investigation; the
said statements were not sent to the Judicial
magistrate forthwith; and that after recording
the statements, the accused were not sent to
judicial custody, in our opinion, unless there
is sufficient corroboration to the said
statements, it is not safe to convict the
accused solely on the basis of the confessions.
Therefore, we have considered confessional
statements with the other evidence connecting
the accused with the crime. Learned Senior
Counsel Mr. Sushil Kumar submitted that if we
remove the evidence of PW 26 from the scene then
it is difficult to maintain the conviction of A-
7. It is his contention that A-2 and A-6 were

knowing each other as per their admission in
confessional statements. He emphasized upon
minor contradictions and submitted that evidence
against A-7 is not sufficient to connect him
with the crime. In our view other evidence as
stated above fully corroborates the confessional
statements and there is no reason to discard the
evidence of PW 26.
75. In the matter of Devender Pal Singh [Supra],
while considering the admissibility of the
confessional statement recorded under Section 15
of the Act of 1987, the majority view, following
the judgments in Gurdeep Singh v. State (Delhi
Administration) [(2000) 1 SCC 498]; inState of
Tamil Nadu through Superintendent of Police
CBI/SIT v. Nalini & Ors. [AIR 1999 SC 2640]; in
Jayawant Dattatray Suryarao v. State of
Maharashtra [(2001) 10 SCC 109] held, ..the
initial burden is on the prosecution for it has

to prove that all requirements under Section 15
of the TADA and Rule 15 of the Terrorist &
Disruptive Activities (Prevention) Rules, 1987
[hereinafter referred to as, the Rules] have
been complied with. Once this is done the
prosecution discharges its burden and then it is
for the accused to show and satisfy the Court
that the confessional statement was not made
voluntarily. The confessional statement of the
accused can be relied upon for the purpose of
conviction, and no further corroboration is
necessary if it relates to the accused himself.
The Hon'ble Court also quoted paragraph 60 from
the judgment in Jayawant Dattatray's case with
approval. While considering the method in which
the confessional statement was recorded on
computer and the certificate given by the
Recording Officer in typing and not under his
own hand, the Hon'ble Court observed, ..This is
merely a procedural requirement. The non-
observance does not cause any prejudice to the

accused. It has not been shown as to how the
accused was prejudiced by the certificate having
been typed. Procedure is handmaid and not the
mistress of law, intended to subserve and
facilitate the cause of justice and not to
govern or obstruct it. Like all rules of
procedure, the requirement of recording under
his own handdemands an approach which would be
rational and practical and not otherwise. Such
minor deficiency if any, cannot be considered to
be a fatal factors so far as the prosecution
case is concerned.
The Court further observed, ..A mere statement
that requisite procedures and safeguards were
not observed or that statement was recorded
under duress or coercion, is really of no
consequence. Such a stand can be taken in every
case by the accused after having given the
confessional statement. It could not be shown as
to why the officials would falsely implicate the

accused. There is a statutory presumption under
Section 114 of the Evidence Act that judicial
and officials acts have been regularly
performed.
76. In the matter of Ravinder Singh @ Bittu
[Supra], the Hon'ble Supreme Court reiterated
that the confessional statements of the accused
were relied upon for the purpose of his
conviction and no further corroboration is
necessary, if it relates to the accused himself.
The Court held, ...It is thus well established
that a voluntary and truthful confessional
statement recorded under Section 15 of the TADA
Act requires no corroboration. Here, we are
concerned primarily with the confessional
statement of the maker. The weight to be
attached to the truthful and voluntary
confession made by an accused under Section 15
of the TADA Act came to be considered again in a

recent three Judge Bench decision in Devender
Pal Singh v. State of N.C.T of Delhi & Anr. [JT
2002 (3) SC 264]. It was held in the majority
opinion that the confessional statement of the
accused can be relied upon for the purpose of
conviction and no further corroboration is
necessary if it relates to the accused himself.
77. In the matter of Navjot Sandhu alias Afsan
Guru (Supra), Mr. Panchal relied upon the
observation, We are therefore of the view that
the non-compliance with the judicial custody
requirement does not per-se vitiate the
confession, though its non-compliance should be
one of the important factors that must be borne
in mind in testing the confession....It is true
as contended by the learned counsel Mr. Gopal
Subramanium that there is no hard-and-fast rule
regarding grant of time for reflection and the
rules and guidelines applicable to a confession

under Section 164 CrPC do not govern but in the
present case, the time of 5 or 10 minutes is,
by all standards, utterly inadequate.
The Hon'ble Court dealt with the retracted
confession, to quote with approval from Pyare
Lal Bhargava v. State of Rajasthan [AIR 1963 SC
1094], ..A retracted confession may form the
legal basis of a conviction if the court is
satisfied that it was true and was voluntarily
made. But it has been held that a court shall
not base a conviction on such a confession
without corroboration. It is not a rule of law,
but is only rule of prudence. It cannot even be
laid down as an inflexible rule of practice or
prudence that under no circumstances can such a
conviction be made without corroboration, for a
court may, in a particular case, be convinced of
the absolute truth of a confession and prepared
to act upon it without corroboration; but it may
be laid down as a general rule of practice that

it is unsafe to rely upon a confession, much
less on a retracted confession, unless the court
is satisfied that the retracted confession is
true and voluntarily made and has been
corroborated in material particulars.
The Court relied upon case of Subramania Goundan
v. State of Madras [1958 SCR 428] to hold, ..As
to the extent of corroboration required, it was
observed in Subramania Goundan case that each
and every circumstance mentioned in the
retracted confession regarding the complicity of
the maker need not be separately and
independently corroborated. The learned Judges
observed :
It would be sufficient, in our opinion, that the
general trend of the confession is substantiated
by some evidence which would tally with what is
contained in the confession.

Following Jameel Ahmed v. State of Rajasthan
[(2003) 9 SCC 673], the Court held, ..While we
agree with the proposition that the nature of
corroboration required both in regard to the use
of confession against the maker and the co-
accused is general in nature, our remarks made
earlier in relation to the confession against
the maker would equally apply to Proposition
(iii) in so far as it permits the Court in an
appropriate case to base the conviction on the
confession of the co-accused without even
general corroboration. We would only add that we
do not visualize any such appropriate case for
the simple reason that the assurance of the
truth of confession is inextricably mixed up
with the process of seeking corroboration from
the rest of the prosecution evidence. We have
expressed our dissent to this limited extent. In
the normal course, a reference to the larger
Bench on this issue would be proper. But there

is no need in this case to apply or not to apply
the legal position clarified in proposition
(iii) for the simple reason that the trial court
as well as the High Court did look for
corroboration from the circumstantial evidence
relating to various facts narrated in the
confessional statement. Perhaps, the view
expressed by us would only pave the way for a
fresh look by a larger Bench, should the
occasion arise in future.
78. We have considered the judgments of the
Hon'ble Supreme Court in the matter of S.N Dube
v. N.B Bhoir & Ors. [(2000) 2 SCC 254]; and of
Lal Singh v. State of Gujarat & Anr. [(2001) 3
SCC 221]. In respect of the confessional
statements recorded under Section 15 of the Act
of 1987, the Court observed, ...In this case DSP
Sindhe had put questions to each of the accused
who was brought before him to ascertain if he

was willing to make a confession voluntarily and
had also given the statutory warning to him on
that day. Even after the accused had shown his
willingness to make a confession Shinde had
given him time not exceeding 48 hours to think
over his readiness to make the confession. When
the accused was brought to him again he had
again ascertained if he was still ready and
willing to give a statement. He had also asked
him if he was making it under any pressure or
coercion or threat. Only after the accused had
replied in the negative he had told the accused
to say whatever he wanted to state about Suresh
Dube's murder. In view of these facts and
circumstances it is not possible to uphold the
finding recorded by the trial court and to
accept the contention raised on behalf of the
respondents that while recording the confessions
of the accused Shinde had committed a breach of
Rule 15 (2).
79. In the matter of Lal Singh [Supra], the
Hon'ble Court rejected the contention that the
confessional statements were inadmissible in
evidence because [a] the statements were
recorded by the investigating officer or the
officers supervising the investigation; [b] the
accused were not produced before the Judicial
Magistrate immediately after recording the
confessional statements; and [c] guidelines laid
down in the case of Kartar Singh vs. State of
Punjab [(1994) 3 SCC 569] were not followed.
80. In the matter of State of Maharashtra v.
Bharat Chaganlal Raghani & Ors. [Supra], the
Hon'ble Court held the confessional statements
of the accused nos. 5 & 6 excluded by the trial
Court to be admissible in evidence. The Court
held, ..Confessional statements having been

proved to be voluntarily made and legally
recorded, which generally stood corroborated,
were sufficient to hold that the aforesaid
persons were guilty of hatching the conspiracy
with A-7 to A-13 for commission of offence with
which they were charged.
81. In the matter of State of Rajasthan v. Ajit
Singh & Ors. [Supra]], the Court was
considering acquittal of the accused tried
under the TADA. While considering the
admissibility of confession recorded under
Section 15 of the TADA, the Court held, ..It
had, therefore, to be seen at the very initial
stage as to whether the case would fall within
the mischief of Sections 3 (3) and 4 (1) of the
Act. 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. The accused had been in police

custody for almost 45 days in each case. The
record of confessions of the accused shows that
15 to 30 minutes time was given for reflection
before the actual confessions were recorded.
Therefore, sufficient cooling-off time had not
been given to the accused, in the background
that they had been in police custody over a
long period of time.
82. In the matter of Lal Singh v/s. State of
Gujarat and Anr. [Supra] while considering the
question of criminal conspiracy, the Hon'ble
Court observed, ...It is common knowledge that
such terrorist activities are carried out with
utmost secrecy. Many facts pertaining to such
activities remain in personal knowledge of the
person concerned. Hence, in case of conspiracy
and particularly such activities, better
evidence than acts and statements including
that of co-conspirators in pursuance of the

conspiracy is hardly available. In such cases,
when there is confessional statement it is not
necessary for the prosecution to establish each
and every link as confessional statement gets
corroboration from the link which is proved by
the prosecution. In any case, the law requires
establishment of such a degree of probability
that a prudent man may on its basis, believe in
the existence of the facts in issue.
83. While considering the question of
conspiracy in the matter of Yash Pal Mital v/s.
The State of Punjab [AIR 1977 SC 2433], the
Court 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.. The only relevant
factor is that all means adopted and illegal

acts done must be and purported to be in
furtherance of the object of the conspiracy
even though there may be sometimes mis-fire or
over-shooting by some of the conspirators. Even
if some steps are resorted to by one or two of
the conspirators without the knowledge of the
others it will not affect the culpability of
those others when they are associated with the
object of the conspiracy. The Court quoted with
approval the case of E.G. Barsay v/s. The State
of Bombay [AIR 1961 SC 1762] and held that,
..The gist of the offence is an agreement to
break the law. The parties to such an agreement
will be guilty of criminal conspiracy, though
the illegal act agreed to be done has not been
done. So too, it is not an ingredient of the
offence that all the parties should agree to do
a single illegal act. It may comprise the
commission of a number of acts. Under S.43 of
the Indian Penal Code, an act would be illegal
if it is an offence or if it is prohibited by
law. Under the first charge the accused are
charged with having conspired to do three
categories of illegal acts, and the mere fact
that all of them could not be convicted
separately in respect of each of the offences
has no relevancy in considering the question
whether the offence of conspiracy has been
committed. They are all guilty of the offence
of conspiracy to do illegal acts, though for
individual offences all of them may not be
liable.
84. In the case of State of Tamil Nadu through
Ors. [AIR 1999 SC 2640], the Court has
summarized the law of conspiracy as follows :-
Some of the broad principles governing the

law of conspiracy may be summarized though,
as the name implies, a summary cannot be
exhaustive of the principles.
1. Under Section 120A, IPC offence of criminal

conspiracy is committed when two or more
persons agree to do or cause to be done an
illegal act or legal act by illegal means.
When it is legal act by illegal means overt
cat is necessary. Offence of criminal
conspiracy is exception to the general law
where intent alone does not constitute
crime. It is intention to commit crime and
joining hands with persons having the same
intention. Not only the intention but there
has to be agreement to carry out the object
of the intention, which is an offence. The
question for consideration in a case is did
all the accused had the intention and did
they agree that the crime be committed. It
would not be enough for the offence of
conspiracy when some of the accused merely
entertained a wish, howsoever, horrendous
it may be, that offence be committed.
2. Acts subsequent to the achieving of object

of conspiracy may tend to prove that a
particular accused was party to the
conspiracy. Once the object of conspiracy
has been achieved, any subsequent act,
which may be unlawful, would not make the
accused a part of the conspiracy like
giving shelter to an absconder.
3. Conspiracy is hatched in private or in

secrecy. It is rarely possible to establish
a conspiracy by direct evidence. Usually,
both the existence of the conspiracy and
its objects have to be inferred from the
circumstances and the conduct of the
accused.
4. Conspirators may, for example, be enrolled

in chain A enrolling B, B enrolling C, and
so on and all will be members of the single
conspiracy if they so intend and agree,
even though each member knows only the
person who enrolled him and the person whom
he enrolls. There may be a kind of
umbrella-spoke enrollment, where a single
person at the centre doing the enrolling
and all the other members being unknown to
each other, though they know that there are
to be other members. These are theories and
in practice it may be difficult to tell
whether the conspiracy in a particular case
falls into which category. It may, however,
even overlap. But then there has to be
present mutual interest. Persons may be
members of single conspiracy even though
each is ignorant of the identity of many
others who may have diverse role to play.
It is not a part of the crime of conspiracy
that all the conspirators need to agree to
play the same or an active role.
5. When two or more persons agree to commit a

crime of conspiracy, then regardless of
making or considering any plans for its
commission, and despite the fact that no
step is taken by any such person to carry
out their common purpose, a crime is
committed by each and every one who joins
in the agreement. There has thus to be two
conspirators and there may be more than
that. To prove the charge of conspiracy it
is not necessary that intended crime was
committed or not. If committed it may
further help prosecution to prove the
charge of conspiracy.
6. It is not necessary that all conspirators

should agree to the common purpose at the
same time. They may join with other
conspirators at any time before the
consummation of the intended objective, and
all are equally responsible. What part each
conspirator is to play may not be known to
everyone or the fact as to when a
conspirator joined the conspiracy and when
he left.
7. A charge of conspiracy may prejudice the

accused because it is forced them into a
joint trial and the Court may consider the
entire mass of evidence against every
accused. Prosecution has to produce
evidence not only to show that each of the
accused has knowledge of object of
conspiracy but also of the agreement. In
the charge of conspiracy Court has to guard
itself against the danger of unfairness to
the accused. Introduction of evidence
against some may result in the conviction
of all, which is to be avoided. By means of
evidence in conspiracy, which is otherwise
inadmissible in the trial of any other
substantive offence prosecution tries to
implicate the accused not only in the
conspiracy itself but also in the
substantive crime of the alleged
conspirators. There is always difficult in
tracing the precise contribution of each
member of the conspiracy but then there has
to be cogent and convincing evidence
against each one of the accused charged
with the offence of conspiracy. As observed
to Judge Learned Hand that this distinction
is important today when many prosecutors
seek to sweep within the dragnet of
conspiracy all those who have been
associated in any degree whatever with the
main offenders.
8. As stated above it is the unlawful

agreement and not its accomplishment, which
is the gist or essence of the crime of
conspiracy. Offence of criminal conspiracy
is complete even though there is no
agreement as to the means by which the
purpose is to be accomplished. It is the
unlawful agreement, which is the gravamen
of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy
need not be formal or express, but may be
inherent in and inferred from the
circumstances, especially declarations,
acts and conduct of the conspirators. The
agreement need not be entered into by all
the parties to it at the same time, but may
be reached by successive actions evidencing
their joining of the conspiracy.
9. It has been said that a criminal conspiracy

is a partnership in crime, and that there
is in each conspiracy a joint or mutual
agency for the prosecution of a common
plan. Thus, if two or more persons enter
into a conspiracy, any act done by any of
them pursuant to the agreement is, in
contemplation of law, the act of each of
them and they are jointly responsible
therefor. This means that everything said,
written or done by any of the conspirators
in execution or furtherance of the common
purpose is deemed to have been said, done,
or written by each of them. And this joint
responsibility extends not only to what is
done by any of the conspirators pursuant to
the original agreement but also to
collateral acts incident to and growing out
of the original purpose. A conspirator is
not responsible, however, for acts done by
a co-conspirator after termination of the
conspiracy. The joinder of a conspiracy by
a new member does not create a new
conspiracy nor does it change the status of
the other conspirators, and the mere fact
that conspirators individually or in groups
perform different tasks to a common end
does not split up a conspiracy into several
different conspiracies.
10. A man may join a conspiracy by word or by

deed. However, criminal responsibility for
a conspiracy requires more than a merely
passive attitude towards an existing
conspiracy. One who commits an overt act
with knowledge of the conspiracy is guilty.
And one who tacitly consents to the object
of a conspiracy and goes along with other
conspirators, actually standing by while
the other but the conspiracy into effect,
is guilty though he intends to take no
active part in the crime.
85. In the case of State of Rajasthan v/s.
Kishore [1996 Cri.LJ 2003], while considering
the lapse in the investigation, the Court held,
...Mere fact that the investigating officer
committed irregularity or illegality during the
course of the investigation would not and does
not cast doubt on the prosecution case nor
trustworthy and reliable evidence can be cast
aside to record acquittal on that account.
86. In the matter of State of W.B. v/s. Mir
Mohammad Omar & Ors. [2000 Cri.LJ 4047(1)], the
Court held, ...Courts should bear in mind the
time constraints of the police officers in the
present system, the ill-equipped machinery they
have to cope with, and the traditional apathy
of respectable persons to come forward for
giving evidence in criminal cases which are

realities the police force have to confront
with while conducting investigation in almost
every case.....In the present case we have not
come across any such serious flaw in the
investigation which had affected the case or
which would have impaired the core of the
prosecution case justifying or warranting the
pejorative remarks made by the Division Bench
of the High Court against the investigating
officers.
87. In the matter of Rotash v/s. State of
Rajasthan [(2006)12 SCC 64], the Court held,
...The investigation was not foolproof but then
defective investigation would not lead to total
rejection of the prosecution case. The Court
quoted with approval the case of Visveswaran v.
State [(2003)6 SCC 73]. There it was held,
...It is also required to be kept in view that
every defective investigation need not

necessarily result in the acquittal. In
defective investigation, the only requirement
is of extra caution by courts while evaluating
evidence. It would not be just to acquit the
accused solely as a result of defective
investigation. Any deficiency or irregularity
in investigation need not necessarily lead to
rejection of the case of prosecution when it is
otherwise proved. The Court also quoted with
approval the case of State of M.P. v. Mansingh
[(2003)10 SCC 414]. There it was held, ...Even
if it is accepted that there were deficiencies
in the investigation as pointed out by the High
Court, that cannot be a ground to discard the
prosecution version which is authentic,
credible and cogent.
88. In the matter of Krishna Mochi & Ors. vs.
State of Bihar [2002 (2)SCC Criminal 1220], the
prosecution arose from an incidence of mass

killing of 35 people of particular community and
injury to several persons. The Court considered
it to be an exceptional case where life
imprisonment would be an inadequate punishment
and the death sentence was justified. Following
the guidelines laid down in Machhi Singh v.
State of Punjab [1983 3 SCC 470], the Court
observed, ..[i] When the murder is committed in
an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse
intense and extreme indignation of the community
... [ii] When the crime is enormous in
proportion. For instance when multiple murders
say of all or almost all the members of a family
or a large number of persons of a particular
caste, community, or locality, are committed.On
the facts, the Court upheld the death sentence.
89. In the matter of Lehna v. State of Haryana
[2002 SCC (Cri) 526], following the earlier

judgments, the Court culled the following
guidelines in respect of imposition of death
sentence.
...In rarest of rare cases when the

collective conscience of the community is
so shocked, that it will expect the holders
of the judicial power centre to inflict
death penalty irrespective of their
personal opinion as regards desirability or
otherwise of retaining death penalty, death
sentence can be awarded. The community may
entertain such sentiment in the following
circumstances:
1. When the murder is committed in an

extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to
arouse intense and extreme indignation of
the community.
2. When the murder is committed for a motive
which evinces total depravity and meanness
e.g. murder by hired assassin for money or
reward; or cold-blooded murder for gains of
a person vis-a-vis whom the murderer is in
a dominating position or in a position of
trust; or murder is committed in the course
for betrayal of the motherland.
3. When murder of a member of a Scheduled
Caste or minority community etc., is
committed not for personal reasons but in
circumstances which arouse social wrath, or
in cases of 'bride burning' or 'dowry
deaths' or when murder is committed in
order to remarry for the sake of extracting
dowry once again or to marry another woman
on account of infatuation.
4. When the crime is enormous in proportion.
For instance when multiple murders, say of
all or almost all the members of a family
or a large number of persons of a
particular caste, community, or locality,
are committed.
5. When the victim of murder is an innocent
child, or a helpless woman or old or infirm
person or a person vis-a-vis whom the
murderer is in a dominating position, or a
public figure generally loved and respected
by the community.
90. In the matter of Ravji alias Ram Chandra
vs. State of Rajasthan [(1996)2 SCC 175], the

Court confirmed the death sentence imposed upon
the appellant who was convicted under Section
302 IPC and also the Court culled the decision
in the matter of Dhananjoy Chatterjee v. State
of W.B. (1994)2 SCC 220] with approval. In case
of Dhananjoy Chatterjee, the Court held, ...In
imposing sentences in the absence of specific
legislation, Judges must consider variety of
factors and after considering all those factors
and taking an overall view of the situation,
impose sentence which they consider to be an
appropriate one. Aggravating factors cannot be
ignored and similarly mitigating circumstances
have also to be taken into consideration. In
the above case, the murders were committed in a
brutal and barbarous manner. While considering
the propriety of both sentence imposed upon the
appellant, the Court observed, ...The brutality
and cruelty with which the crimes have been
perpetrated cannot but shock the conscience of
the society.... All the said heinous crimes

were committed without any provocation. The
appellant was not even remorseful after the
said incident of successive five murders and
attempt to kill two others including the
appellant's mother..... The crimes had been
committed with utmost cruelty and brutality
without any provocation, in a calculated
manner. It is the nature and gravity of the
crime but not the criminal, which are germane
for consideration of appropriate punishment in
a criminal trial. 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 the criminal and
victim belong. The punishment to be awarded for
a crime must not be irrelevant but it should
conform to and be consistent with the atrocity
and brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should

respond to the society's cry for justice
against the criminal.
91. In the case of Gurdev Singh & Anr. v. State
of Punjab [2003 Cr.LJ 3764], the incidence was
of causing death of 15 persons. The appellants
were convicted and sentenced to death.
Following the aforesaid guidelines, the Court
confirmed the death sentence. The Court
observed, ...The entire incident is extremely
revolting and shock the collective conscience
of the community. The acts of murder committed
by the appellants are so gruesome, merciless
and brutal that the aggravating circumstances
far outweigh the mitigating circumstances. ...
we do not think that this is a case where
imprisonment for life is an adequate sentence
to meet the ends of justice.

92. In the matter of People's Union for Civil
Liberties & Anr. vs. Union of India [2005 SCC
Cri. 1905], the Hon'ble Court has considered
the legal scope and impact of the provisions
contained in the POTA.
93. The evidence on record has been considered
by the learned Special Judge in minute details.
We, therefore, do not reiterate every minute
detail of the evidence. We shall refer to only
that part of the evidence that is essential for
our judgment.
94. The break through in the incidence came
when, upon information received by the police,
Asfaq Abdulla Bhavnagari [PW-50 : Exh.312] of
Ahmedabad, working at Riyadh in Saudi Arabia was
rounded off and his statement was recorded by
the police. The said Asfaq Bhavnagari appeared

before the Court and gave evidence. According to
the witness, he was a resident of Ahmedabad
city; he was working at Riyadh in Saudi Arabia
since 1992. He visited Ahmedabad city
occasionally. He came back and resided in
Ahmedabad from 1998. In January 2001, he
returned to Riyadh and came back on 5th August
2003. While he was in Riyadh he had befriended
many people from other parts of India like
Bombay, Hyderabad, U.P. working there and of
Pakistan. Every Thursday evening, they got-to-
gather at the place of one Salim [accused no.
3]. The residence of Salim was also visited by
one Kari Mannan Moulvi [absconding accused
no.20] of Pakistan. He was working for the Sunni
Muslim group 'Sippa-A-Saheba'. He had also
joined 'Jaish-E-Mohammad'. The said Moulvi Kari
Mannan frequently collected contribution in the
name of Islam. The cassettes of the gory scenes
of the communal riots of Ahmedabad were shown at
the place of Salim [accused no.3]. One Maulvi

Farhadulla Gori @ Abusufiyan [absconding accused
no.14] and his brother Shaukatulla Ghori
[absconding accused No.15] used to incite these
young Muslims. They enticed these people from
Gujarat to retaliate the Gujarat incidence. They
declared that they were from Hyderabad and were
ready to help muslims from Ahmedabad; they
called upon the muslims from Gujarat to make
contribution for Jihad.
95. After the WTC incidence of USA and
aggression by U.S.A in Afghanistan, a public
meeting was arranged in a public hall in Riyadh.
The public gathering was addressed by one
Abdullasha Mazhar @ Shahji [absconding accused
no.19] an associate of Maulana Masud Azhar of
Pakistan. The said gathering was attended by
Maulana Kari Mannan, Maulana Kari Jamil, Maulvi
Farhadulla Ghori of Hyderabad [absconding
accused nos. 21, 21 & 14] and one Abbu Hamja

[absconding accused No.17] of Lashker-E-Toiba.
They made fiery speech and challenged the
gathering to rise to the occasion and be ready
for Jihad. They also lured the gathering by
assuring the gathering that those who raised
Jihad would have 70 hoors [nymphs] in the heaven
and that their 72 relatives also would get
heaven. They assured the assistance from
Pakistan based groups Jaish-E-Mohammad and
Lashker-E-Toiba and called for generous
contribution in the name of Jihad. On that day,
they had collected contribution of some 12,000
to 13,000 Riyals. The witness was taken to that
meeting by Rasid Ajmeri [absconding accused
no.4] and Salimbhai [accused no.3].
A similar gathering was again arranged after the
communal riots in Gujarat and a substantial
amount of contribution was collected. They
offered to support expenditure to those who were

ready to join Jihad and to give them training in
Pakistan. From others, they demanded generous
contribution. The money was collected by Salim.
The said money was sent through Hawala entries
to Majidbhai Patel (Vora) [absconding accused
no. 9] and Iqbal Patel (Vora) [absconding
accused no. 10] of Bharuch. After communal riots
in 2002, Maulvi Farhadulla Ghori @ Abusufiyan
[the absconding accused no.14] Shaukatulla Ghori
[absconding accused no.15] came to Ahmedabad and
visited the relief camps. After going back to
Saudi Arabia, these two again collected the
contribution. While in India, they had met
Adambhai Sulemanbhai Ajmeri [accused no.2].
Thereafter, the incidence of Akshardham had
happened. After a few days, a meeting was held
and it was disclosed that the attack was
organized by Jaish-E-Mohammadand that the attack
was carried on for some twelve hours and that
the attackers had become the martyrs. He
identified the accused no. 1 Altafhussain

Akbarhussain Malek and the accused no. 3 Mohmed
Salim Mohmed Hanif Shaikh.
The witness admitted the confession Exh.539 made
under Section 164 CrPC before the Judicial
Officer Shri V.R Raval [PW-73].
He withstood the cross examination by the
defence lawyers. He denied that his statement
was recorded on 20th August 2003 or that he was
in custody of the Crime Branch from 6th August
2003 to 20th August 2003.
96. Abdul Raheman Gulamhussain Panara [PW-51:
Exh.314] in his examination-in- chief supported
the prosecution case. He admitted that he,
Maulvi [accused no.5], Muftisaab [accused no.
4], Khalid and others had started a relief camp

at Bavahir Hall. He admitted that Nasir Doman
and his friend Adam [accused no.2] had visited
the Bavahir Hall to convey the message received
from his brother Rashid residing in Saudi
Arabia. He [accused no.2] had informed that his
brother Rashid had learnt about the loss
suffered by the muslims in Ahmedabad and wanted
to help them. Since then, Adam frequently
visited Bavahir Hall. He collected the telephone
number of the residence of Nasir Doman for local
contact for his brother Rashid residing in Saudi
Arabia. He admitted Adam having talked to some
person in Saudi Arabia; he too had a talk to
that contact in Saudi Arabia and upon being
asked, he had asked for assistance of Rs. 20
lakhs. He admitted Nasir Doman receiving Rs.
5,000/= from Ahmed the brother of Adam [accused
no.2] for purchase of a mobile phone. The
deponent had also received Rs. 5000/= from
Ahmed. The said Ahmed had instructed the
deponent to make arrangements for stay of his

guests in Ahmedabad for some 15 days to a month.
Once again, Adam [accused no.2] had given him
Rs. 5,000/= and requested him to make
arrangement for lodging, boarding and
transportation of his guests [the Fidayins] in
Ahmedabad. At that time, Adam had told the
deponent that the guests would recci Hindu areas
and would kill people. Mufti Abdulkayum and
Maulvi Abdulmiya [accused nos. 4 & 5] were aware
of these developments and encouraged the
deponent to do as was told. He then received
another Rs.10,000/= from Adam [accused no.2]. He
admitted to have rented a house in Dani Limda
and of arranging mattresses, fan, water, etc.,
in that house. As the deponent did not receive
the phone call on the cell phone given to him,
the cell phone was returned to Adam and the Adam
[accused no.2] had also demanded money given to
the deponent. The deponent returned the money in
small instalments. He admitted that Adam
[accused no.2] had told him that guests from

Hyderabad had arrived; had gone around the City
and had returned back. He also admitted that
Maulana Abdullamiya [accused no. 5] Muftisaab
[accused no.4] had informed him about the guests
having arrived and assured that there would be a
victory. He identified Muftisaab [accused no.
4], Maulana [accused no.5] and Adambhai [accused
no.2] in the court-room.
He admitted the confession Exh. 540 made by him
under Section 164 CrPC before the Judicial
Officer Shri V.R Raval [PW-73].
97. It may be noted that this witness was
examined on 15th July 2005. In his cross
examination on 25th July 2005, he took a
somersault and made a totally contradictory
statement. In the cross examination, he said
that he was detained by the Police in custody

for sixty days; he was beaten by the police and
was tortured; he had suffered fracture on the
thumb; he had given evidence under coercion and
duress. He denied meeting accused no.4-
Abdulkayum @ Muftisaab Mohmedbhai Mansuri and
accused no.5-Abdullamiya Yasinmiya Kadri. He
denied the statements made in his evidence.
The witness was declared hostile. In the cross
examination by the prosecution, he admitted
confessional statement Exh.540. He admitted that
neither he nor any one else made complaint about
illegal detention or the ill-treatment by the
police. He admitted that he did not complain
about his illegal detention by the police or the
police atrocity to the judicial officer Shri V.R
Raval [PW-73].
98. The witness Mohmed Munaf Hajimiya Shaikh
[PW-52 :: Exh. 315] knew Adambhai Ajmeri
[accused no.2] Abdulkayum @ Muftisaab Mohmedbhai
Mansuri [accused no.4] and Abdullamiya Yasinmiya

Kadri [accused no.5].
He gave evidence about the relief camp run at
Bavahir hall by the accused no.4 Abdulkayum @
Muftisaab Mohmedbhai Mansuri and accused no.5
Abdullamiya Yasinmiya Kadri. He admitted meeting
the accused no.2 Adambhai Sulemanbhai Ajmeri and
the accused no.5 Abdullamiya Yasinmiya Kadri. He
was informed by the accused no.2 Adambhai
Sulemanbhai Ajmeri that his brother Abdulrashid
Sulemanbhai Ajmeri [absconding accused no.4] in
Saudi Arabia and his contact Salimbhai were to
send money, weapons and the guest [the Fidayins]
for wreaking havoc [Kand]; that Abdullamiya
Yasinmiya Kadri [accused no.5] and Mufti
Abdulkayum [accused no.4] advised Adambhai
Sulemanbhai Ajmeri [accused no.2] to go ahead
with the plan. He had given telephone number of
Doman to Adambhai Ajmeri [accused no.2]. He
identified accused no.2 Adambhai Sulemanbhai

Ajmeri, accused no. 4 Abdulkayum @ Muftisaab
Mohmedbhai Mansuri and accused no.5 Abdullamiya
Yasinmiya Kadri in the Court-room.
The witness admitted the confessional statement
Exh.541 made under Section 164 CrPC before the
Judicial Officer Shri V.R Raval [PW-73].
He withstood the cross examination. He denied
that he had given statement under threat or
duress by the police.
99. PW-56 Abdul Wahid [Exh.325] admitted that on
24th April 2002 he had gone to Hyderabad with Adam
Ajmeri [accused no.2]. In Hyderabad, they met
Khalid [absconding accused no. 16]. The said Abdul
Raheman @ Abu Talah @ Khalid had made arrangement
for their lodging at Hotel G-Royal. He also
admitted meeting Ayub [absconding accused no.23]
at Hyderabad. He admitted the disputed signature

in the hotel register [muddamal article 129] and
the specimen signature [muddamal article 131]. He
admitted the confession Exh.543 made under Section
164 CrPC. He identified the accused no.2-Adam
Ajmeri in the Court-room.
He withstood the cross examination by the defence
lawyer. He denied that the statement made under
Section 164 CrPC was given by him under pressure
or duress or coercion. He denied that he was
giving evidence under threat by the police.
100. PW-82 Mehboob-e-Ilahi Abubakar Karimi has
admitted transfer of money through him. He
admitted the payment made to Adam Ajmeri
[accused no.2]. He identified the muddamal Diary
[Article 106] and the entries Exhs. 477 & 478
made in respect of the aforesaid transfer of
money.
101. PW-97 Sevakram Bulaki [Exh. 563], the owner
of the Hotel G.Royal Lodge, Hyderabad supported
the prosecution. He admitted allotment of Room
no. 322 to two persons named Abdul Shaikh and
A.S Shaikh who came from Ghatkopar, Bombay on
26th April 2002. He admitted entry Exh.326 made
in the entry register.
102. On 17th September 2003, the accused no. 1
Altafhussain Akbarhussain Malek made statement
Exh. 456 before the Deputy Commissioner of
Police, Zone-IV, Ahmedabad under Section 32 of
the POTA. He admitted before the police that he
was a resident of Shahpur area of Ahmedabad City
and was working at Riyadh in Saudi Arabia. He
admitted that he and other muslims from Gujarat
working at Riyadh used to gather every Thursday
at the residence of Mohmed Salim [accused No.3].
He admitted that one Karim Annan Moulvi

[absconding accused no.20], native of Pakistan
also used to attend those meetings and exhorted
others to work for Islam. He collected funds in
the name of Islam; he was connected with
Pakistani Jihadi group Sippa-E-Saheba and also
became a member of Jaish-E-Mohammed. Maulvi
Farhadulla Ghori [absconding accused no.14] and
his brother Shaukatulla Ghori [absconding
accused no. 15]-native of Hyderabad also
attended the said meetings. During the communal
riots in Gujarat, after 27th February 2002
Sabarmati Express carnage at Godhara, the said
Maulvi Farhadulla Ghori and Shaukatulla Ghori
[absconding accused nos. 14 & 15] made
aggressive statements to retaliate the communal
riots to teach a lesson to Hindus. They told
others to be ready for a grave incidence and to
contribute funds. Altafhussain Akbarhussain
Malek [accused no.1], Abdulrashid Ajmeri
[absconding accused no.4], Mohmed Salim [accused
no.3], Maulvi Farhadulla Ghori [absconding

accused no.14] and Abdul Raheman [absconding
accused no.16] had decided to retaliate the loss
suffered by the Muslims in the communal riots,
to send weapons. They also appealed to the other
muslims to make generous contribution. They held
programme attended by Abdullasha Mazhar [Shahji]
{absconding accused no.19} an associate of
Maulvi Masud Azhar of Jaish-E-Mohammed; Karim
Annan [absconding accused no.20] made inciting
and enticing statements and appealed to send
contribution to Jaish-E-Mohammed.
103. Altafhussain Akbarhussain Malek [accused
no.1] and Mohmed Salim [accused no.3] had
accepted the leadership of Gujarat group. Those
who could not make contribution were instigated
to fight out and earn martyrdom. Altafhussain
Akbarhussain Malek [accused no.1], Mohmed Salim
[accused no.3] and Abdulrashid Suleman Ajmeri
[absconding accused no.4] explained what Jihad

was. He admitted to collecting contribution and
passing over the funds to Maulvi Farhadulla
Ghori [absconding accused no.14]. He admitted
that during that period Abdul Raheman
[absconding accused no.16] had visited India
twice; he had given Jihadi training to the young
muslims in the relief camp; had called Adambhai
Ajmeri [accused no.2] to Hyderabad. He was aware
that Maulvi Farhadulla Ghori [absconding accused
no.14] and Mohmed Salim [accused no.3] were
making plan to retaliate in a huge way.
104. The confession made by the accused no.1-
Altafhussain Akbarhussain Malek is corroborated
by the evidence of Deputy Commissioner of
Police-Shri Sanjay Gadhvi [PW-78]; Chief
Judicial Magistrate Shri S.M Padhya [PW-99]; the
evidence of Asfaq Bhavnagari [PW-50] and his
confession Exh. 539 made under Section 164 CrPC.

105. The accused no.2 Adambhai Sulemanbhai
Ajmeri made confession Exh.458 before the Police
on 24th September 2003 under Section 32 of the
POTA. He admitted his being in contact with his
brother Abdulrashid Suleman Ajmeri [absconding
accused no. 4] and the Mohmed Salim [accused
no.3]. He admitted receipt of fund and calls
from Abdul Rashid from Saudi Arabia. He admitted
that Abdul Rashid [absconding accused no.4] and
the others in Saudi Arabia had a plan to
retaliate the loss suffered by the muslims
during the communal riots in Gujarat; that Abdul
Rashid [absconding accused no.4] had asked him
[accused no.2] to make suitable arrangements and
that he [accused no.2] had made local
arrangements. He admitted the involvement of
Abdulkayum [accused no.4] and Abdullamiya
Yasinmiya Kadri [accused no.5]. They [accused
no. 2 and others] agreed to cooperate in

carrying out the plans made in Saudi Arabia
under the guidance of the accused nos. 4 & 5. He
[accused no.2] gave the telephone numbers of his
contacts. He [accused no.2] had received money;
had travelled to Hyderabad with one Wahidbhai
Shaikh. In Hyderabad, he had met one Abdul
Raheman @ Abu Talah @ Khalid [absconding accused
no.16]. He had stayed in Room no. 322 at Hotel
G-Royal in the name of A.S Shaikh. He had met
Abdul Raheman @ Abu Talah @ Khalid and one Ayub
@ Doctor-1 [absconding accused no.23]. The said
two absconding accused had informed him [accused
no.2] that two terrorists [Fidayins] would reach
Ahmedabad with weapons and that he [accused
no.2] shall attend to the Fidayins and make
necessary arrangements. The Fidayins were
referred to as the Guests. The next day, he came
back to Ahmedabad. Abdulkayum Mansuri [accused
no.4] and Abdullamiya [accused no.5] were
informed about the progress. He admitted he had
received Rs.10,000/= from Saudi Arabia through

Mehboob Ilahi [PW-82]. He had given Rs. 5,000/=
to Nasir Doman to purchase two mobile phones and
had given Rs. 5,000/= to Abdul Raheman [PW-51]
for arrangement of a house. He had received Rs.
50,000/= in the month of June 2002. Out of that,
he had paid Rs. 20,000/= to Ilahi [PW-82] and
Rs. 15,000/= to Raheman [PW-51]. All throughout,
he continued to be in contact with the muslims
in Saudi Arabia. He arranged for a vacant house,
mattresses, water, fan, etc for the Fidayins
[the guests]. He [accused no.2] admitted he had
received Ayub [absconding accused no.23] and the
Fidayins. He had accommodated them in the house
of his brother Habib @ Abbas. Ayub had
introduced himself as Doctor No.1 and the
Fidayins were referred to as Doctor-2 and
Doctor-3. The Doctor 2 was a lean man of 5' 8of
the age of 25 years and the Doctor-3 was a short
person. All the three were brought to Bavahir
Hall and were introduced to accused nos. 4 & 5.
He admitted to have taken auto-rickhaw no. GRW-

3861 and to have taken the guests [absconding
accused no.23 and the Fidayins] to various
places in and around the City of Ahmedabad. None
of the said places was considered suitable for
the terrorist attack. He had gathered from Ayub
the name of Doctor 2 was Murtuza and the name of
Doctor 3 was Ashraf. The next day, he took them
to Gandhinagar. The guests had gone around the
Akshardham Temple for around two hours. On 24 th
September 2002 in the afternoon he took auto-
rickshaw no. GRW-3861 to Bavahir Hall where the
guests were present. After the afternoon namaaz,
the accused no.4 & 5 performed namaaz for
Fidayins [Doctor-2 viz., Murtuza @ Abdulla @
Hafiz Yasir & Doctor-3 viz., Ashrafali @ Shakil
@ Mohmed Faruk]. The Fidayins were dispatched to
Railway Station and Adambhai Ajmeri [accused
no.2] took Doctor-1 [Ayub absconding accused no.
23] to Gandhinagar in an auto-rickshaw. He and
Ayub entered the temple and had waited in the
entertainment area. They saw the Fidayins

[Doctor-2 & Doctor-3] entering the temple over
the Gate No.3. They immediately left the temple.
They heard the firing and the screams of the
injured people and came back to Bavahir Hall.
The accused nos. 4 & 5 were waiting for the
news. The accused no.2 took Ayub [absconding
accused no.23] to the Kalupur Railway Station
and arranged for a taxi for Ayub [absconding
accused no.23] to leave for Baroda.
106. The accused Adam Ajmeri admitted the
confessional statement Exh.458 made before the
Police before the Chief Judicial Magistrate Shri
S.M Padhya [PW-99 : Exh.568].
The aforesaid confession made by the accused
no.2-Adambhai Sulemanbhai Ajmeri is corroborated
by the evidence of Deputy Commissioner of
Police-Mr. Sanjay Gadhvi [PW-78 Exh. 452]; of

Chief Judicial Magistrate Mr. S.M Padhya [PW-99
: Exh. 438]; of PW-50 Asfaq Bhavnagari [Exh.312]
and his Statement Exh. 539 made under Section
164 CrPC; of PW-51 Abdul Raheman Gulamhussain
Panara [Exh.314] and his Statement Exh. 540 made
under Section 164 CrPC; of PW-52 Mohd. Munaf @
Munnabhai Radiator [Exh.315] and his statement
Exh. 541 made under Section 164 CrPC; of PW-56
Abdul Wahid Abdul Hakim Shaikh [Exh.325] and his
statement Exh.549 made under Section 164 CrPC;
by the entry Exh.326 made in the entry register
of Hotel G.Royal Lodge, Hyderabad; by the
evidence of PW-82 Mehboob-e-Ilahi Abubakar
Karimi [Exh. 476] and his statement Exh. 548
made under Section 164 CrPC; by the evidence of
PW-98 Mohd. Jaffarkhan Pathan [Exh. 564], the
proprietor of Decent Travels, Hyderabad. He
admitted that on 26th April 2002 two persons in
the name of Ashraf and party had travelled in
his bus from Hyderabad to Bombay. He identified
the Bill No. 2292 [muddamal Exh. 566]; by the

evidence of PW-108 Ismail Pirubhai Mevati [Exh.
609]. The said Ismailbhai was in the business of
decoration. He had supplied the mattresses, fan,
etc., at the house in Dani Limda rented by Adam
Ajmeri [accused no.2].
107. The accused no.3 Mohmed Salim Mohmed Hanif
Shaikh made statement Exh.454 under Section 32
of the POTA on 17th September 2003 before the
Police. He admitted that he was working at
Riyadh in Saudi Arabia; that he had returned to
India in June 2002 and in January 2003. He
admitted making friends in Riyadh with other
muslim people native of Mumbai, Hyderabad, and
of Pakistan. He was introduced to Kari Mannan
Moulvi [absconding accused no.20]a member of
Sippa-E-Saheba. He being a Sunni, had joined
Sippa-E-Saheba at the instance of Mustakim and
Karim [absconding accused nos. 12 & 20]. He was
introduced to Maulvi Farhadulla Ghori @

Abusufiyan and Shaukatulla [absconding accused
nos. 14 & 15], the members of Jaish-E-Mohammed.
He admitted that muslims from Ahmedabad used to
gather at his residence in Riyadh every
Thursday. He used to sell Jihadi literature.
108. Since the attack on WTC in USA and since
the Afghanistan aggression by USA, the Jaish-E-
Mohmed had arranged a programme [a public
meeting]. Mustakim [absconding accused no.12]
and Abusufiyan [absconding accused no.14] had
approached him [accused no. 3] at his residence
and had insisted that the accused no. 3 and his
friends should attend the meeting. He [accused
no.3], Asfaq Bhavnagari [PW-50]; Rasid Ajmeri
[absconding accused no.4], Altaf Hussain
[accused no.1] and others had attended the
meeting. Kari Mannan Moulvi, Kari Abduljamil,
Kari Sharif, Maulvi Farhadulla Ghori @
Abusufiyan, Shaukatullah Ghori [absconding

accused nos.20, 21, 22, 14 & 15], the leaders of
the programme had remained present and had made
fiery speech against the USA and for Islam. They
asked for funds for Jihad to retaliate and to
assist the Talibanand had collected a huge
contribution. He [accused no.3] also had made
the contribution.
109. After the Godhra incidence, after two weeks
of communal riots Mustakim and Sufiyan
[absconding accused no.12 & 14] had approached
him [accused no.3], Rashid [absconding accused
no. 4] and Altaf [accused no.1] to appeal to
them to collect contribution for programme in
connection with the loss suffered by the Muslims
in communal riots in Gujarat. They [accused no.
3 and others] were worried and agitated by the
news of loss of life and property of the muslims
in Gujarat. They were shown the cassettes of the
gruesome scenes of the dead bodies of the muslim

men, women and children and the Hindus armed
with weapons at his [accused no.3] residence. He
[accused no.3] and Rasid Ajmeri [absconding
accused no.4] and others from Ahmedabad had
decided to raise funds. At the instance of Abu
Sufiyan [absconding accused no.14], they had
become members of Jaish-E-Mohammad. At the
instance of Abu Sufiyan [absconding accused no.
14], a programme [public gathering] was arranged
at Sifa. He [the accused no. 3] and Abdulrashid
Suleman Ajmeri [absconding accused no. 4] had
taken leadership of the young people from
Ahmedabad and had distributed pamphlets. In that
programme, Abu Sufiyan, Abu Talah, Kari Mannan,
Kari Jamil, Kari Sharif [absconding accused nos.
14, 16, 20, 21 & 22] had remained present. They
had addressed the gathering, explained the
meaning of Jihad. They made fiery speech to rise
for muslim community, to join them to fight and
to die. They offered to give training in the
training camp in Pakistan. The cassettes of the

leader of Jaish-E-MohammedMaulana Masud Azhar
were played. Many people had attended that
programme and huge fund was collected.
110. Pursuant to the success of that programme,
they [accused no.3 and absconding accused no. 4]
took the leadership and decided to collect fund
to arrange programmes for retaliation. He
[accused no.3] made copies of cassettes of
Jihadi speech brought by Abu Sufiyan. He
[accused no.3], Abdulrashid Suleman Ajmeri
[absconding accused no.4] and Altafhussain
Akbarhussain Malek [accused no.1] sold the
cassettes. He admitted the plan made to
retaliate the communal riots in the State of
Gujarat; maintaining contact with young muslims
in Ahmedabad; arranging the gatherings attended
by the muslims from Gujarat; addressed by

Farhdulla and Shaukatullah [absconding accused
nos.14 and 15] and by Karim Annan Moulvi
[absconding accused no.20], Kari Abduljamil
[absconding accused no. 21] and Kari Sharif
[absconding accused no. 22] : a native of
Pakistan. He admitted hatching of conspiracy to
retaliate the loss suffered by the muslim in the
communal riots; of involvement of Adam Ajmeri
[accused no.2]; sending money to Adam Ajmeri;
meeting Abdul Raheman @ Abu Talah @ Khalid
[absconding accused no. 16] at Hyderabad; and
Abdul Raheman @ Abu Talah @ Khalid having
arranged for the Fidayins. He admitted that the
Maulvi Farhadulla Ghori @ Abusufiyan [absconding
accused no. 14] had sent sum of Rs. 50,000/= to
Adam Ajmeri [accused no.2] by Havala entry
through Iqbal Patel (Vora) [absconding accused
no. 10]. He admitted making contribution for the
Akshardham attack.
He was produced before the Chief Judicial
Magistrate Shri S.M Padhya [PW-99] on 18th
September 2003. He admitted the confession
Exh.454 made by him. He had no complaint against
the Police.
111. The confession made by the accused no.3
Mohmed Salim Mohmed Hanif Shaikh is corroborated
by the evidence of PW-50 Asfaq Abdullabhai
Bhavnagari [Exh. 312] and his statement Exh.539
made under Section 164 CrPC; the evidence of PW-
52 Mohmed Munaff Hajimiya Shaikh [Exh. 315] and
his statement Exh. 541 made under Section 164
CrPC; evidence of [PW-82]-Mehboob Ilahi Karimi
[Exh.476] and his statement Exh.548 made under
Section 164 CrPC; the evidence of Shri Sanjay
Gadhvi [PW-78] and the evidence of Shri S.M
Padhya [PW-99].
112. On 24th September 2003, the accused no. 4
Abdulkayum @ Muftisaab Mohmedbhai Mansuri made
statement Exh.460 under Section 32 of the POTA
before the Deputy Commissioner of Police-Shri
Sanjay Gadhvi (PW-78). He admitted that he was
the Imam in Haji Shakil Mosque and a teacher in
Madressa. He knew Gujarati, Hindi, Urdu & Arabic
languages a little Persian and English also. He
admitted his involvement in the incidence of
terrorist attack on Akshardham temple. He
admitted that during the communal riots after
Sabarmati Express carnage at Godhara, he was
running a relief camp at Bavahir Hall; that the
community leaders frequenting the camp were
enraged and agitated on account of the
sufferings of the muslims; that Nasirkhan @
Doman Pathan and his friend Adambhai [accused
no.2] had visited the camp and had informed, in
presence of Moulvi Abdulla [accused no.5], that
one Rashid residing at Riyadh in Saudi Arabia

the brother of Adambhai had sent a message for
the muslims. Adambhai [accused no.2] had
informed him about the retaliation plan by the
Gujarat muslims in Saudi Arabia and that the
terrorists' group would arrange for the funds,
weapons and Fidayins for the massacre
[Hatyakand] in the congested Hindu area and;
that they were requested to arrange for lodging,
boarding and transportation of the Fidayins. He
[the accused no.4] had agreed to guide others
and to arrange for necessary facilities; that
they used to meet at Bavahir Hall and discuss
the matter. During that time, they were
constantly in contact with Saudi Arabia; that
they had exchanged the telephone numbers. During
that time, Abdul Raheman [absconding accused
no.16]-leader of the terrorist group had visited
India and had invited Adambhai [accused no.2] to
meet him at Hyderabad. Adambhai had gone to
Hyderabad with one Wahid. He was given money for
the expenditure. He admitted receipt of Rs.

5,000/= through one Ilahi [PW-82] for purchase
of a mobile phone, renting a house for the
guests [absconding accused no.23 and the
Fidayins], to help equip the house for the stay
of the guests. However, the guests did not
arrive as scheduled. Once again, message was
received in the month of September that the
guests would arrive within a short while. This
time, the guests were lodged in the house of one
Habib the brother of Adambhai [accused no.2].
The guests were received at the Kalupur Railway
Station, and brought to Bavahir Hall. Adambhai
[accused no.2] arranged auto-rickshaw No. GRW-
3861 to take the guests around the city. They
made survey of several congested places in the
city. They also made recci of Gandhinagar.
Ultimately, selected Akshardham to carry out
their ill-will of striking terror attack against
Hindus. The next day, Ayub @ Doctor-1
[absconding accused no.23] visited Bavahir Hall
and informed Abdulkayum @ Muftisaab [accused

no.4] that the weapons were received; that on
the next day, the Fidayins [Doctor-2 & Doctor-3]
would come to Bavahir Hall for namaaz. Both be
sent to Akshardham separately. He [absconding
accused no.23] instructed the accused no.4 to
write two notes in Urdu in the name of the group
Taheri-E-Kissa Gujarat indicating that the
carnage [Hatyakand] was the retaliation of the
loss suffered by the Muslims in communal riots.
The accused no.4 Muftisaab wrote the Urdu write
ups in his own hand.
113. On 24th September 2002, Adambhai [accused
no.2] went to Bavahir-Hall in auto-rickshaw No.
GRW-3861. At that time, Do-Rakat-Nafal Namaaz
was performed for the success and the well being
of the Fidayins, prayer was also offered for a
place in heaven for the Fidayins, in case they
martyred. Each was given paper written in Urdu.
The pen was also given over to the Fidayins.

Ayub [absconding accused no.23] went to
Akshardham with Adambhai [accused no.2] in auto-
rickshaw No. GRW-3861. The Fidayins went to the
railway station in another auto-rickshaw. He
admitted that Adambhai Ajmeri and Ayub [accused
no.2 & absconding accused no.23] had returned to
Bavahir Hall and confirmed that the Fidayins had
reached Akshardham temple with weapons and had
opened firing at the people. Adam Ajmeri
[accused no.2] had arranged a taxi for Ayub
[absconding accused no.23] for Vadodara. He had
recognized the Fidayins from the photographs of
their dead bodies and also the Urdu writing
[Exh.658] recovered from the body of the
Fidayins.
114. The accused no. 4 Abdulkayum admitted the
aforesaid confession made before the Police
before the Chief Judicial Magistrate-Shri S.M
Padhya [PW-99] on 25th September 2003.

115. The above confession made by the accused
no. 4 is supported by the evidence of PW-51-
Abdul Raheman Panara [Exh.314] and his Statement
Exh.540 made under Section 164 CrPC; of PW-52-
Mohammed Munaff Haji Miya Shaikh [Exh.315] and
his statement Exh.541 made under Section 164
CrPC and the panchnama Exh.681; of PW-121 Gulam
Mohammad Yusufmiya Malek [Exh.657] and the Urdu
write up read out by him and transcribed in
Gujarati script [Exh.775]. The said witness
Malek Bapu was called after three days of the
incident to read out and explain the Urdu
writings; of Deputy Commissioner of Police-Shri
Sanjay Gadhvi [PW-78]; of Chief Judicial
Magistrate Shri S.M Padhya [PW-99]; of
handwriting Expert Shri JJ Patel [PW-89]; Expert
Opinion [Exh.511]; Panchnama Exh.681.

116. On 5th October 2003, the accused no.6
Shaanmiya @ Chandkhan Sajjadkhan made confession
Exh.462 under Section 32 of the POTA before the
Deputy Commissioner of Police-Shri Sanjay
Gadhvi. He admitted that he was a mechanic. That
he had opened a Garage in the name of Chand
Motors at Anantnag. He admitted purchase of
Ambassador car No. KMT 413 for Rs. 35,000/= and
taking it to the terrorist Zuber at Mazgaon
[Kashmir]. Zuber gave him a sum of Rs. 40,000/=
and instructed the accused no.6 to make a cavity
under the rear seat. The accused no. 6 made
concealed cavity, as instructed. On instruction
from Zuber, he took the car to Bareily. Goods
[the weapons] were loaded in the car. On way to
Bareily, the car was stopped near jungle and the
goods were transferred from the boot of the car
to the concealed cavity. He narrated how the
weapons were brought to Bareily, were removed
from the car and concealed in the mattresses and

packed in a suitcase and a holdall. He and Sakir
brought the weapons from Bareily to Ahmedabad by
railway train. At Ahmedabad they stayed at Hotel
Gulshan. He gave his name as Chandkhan
Sajjadhkhan of Bareily and marked his signature
in the register. The next day, he was told that
the weapons were brought for the attack on
Akshardham temple. He was given Rs. 7,000/= and
told to return back to Bareily. From Ahmedabad,
he took a bus to Jaipur. From Jaipur, he went to
Delhi and from Delhi he went to Bareily by Bus.
After a few days, Zuber called him to Mazgam
[Kashmir] and gave him Rs.30,000/=.
He admitted the aforesaid statement made before
the Police, before the Chief Judicial Magistrate
Shri S.M Padhya [PW-99] before whom he was
brought on 6th October 2003.

The above confession Exh.462 of the accused no.6
Shaanmiya @ Chandkhan Sajjadkhan is corroborated
by the evidence of PW-57 Yusuf Gandhi [Exh. 328]
and his statement Exh.550 made under Section 164
CrPC.
117. The presence of the accused no.6-Shaanmiya
in Bareily at the relevant time is proved by PW-
69 Minhas Asfaq Ahmed [Exh.392]. The said
witness has deposed that he was a resident of
Bareily. He was dealing in the motorcycle spare-
parts. He had a shop near the Garage Das Motors.
He knew Chandkhan [accused no.6] for last 10
years. He admitted that an year ago, Chandkhan
had met him at Bareily; he had brought a blue
colour Ambassador Car for repairs at Das Motors;
the Car was kept there for two-three days. He
identified the accused no.6-Chandkhan in the
Court-room; by the evidence of PW-94 Sanjiv
Damodar Arya [Exh.531]. The said Sanjiv Damodar
Arya was running a garage named Das Motors at

Bareily. The accused Shaanmiya had brought a car
for repairs to Das Motors. He identified the
accused no.6-Chandkhan in the Court-room; by
evidence of PW-93 Dr. Sudhanshu Arya [Exh.529].
Dr. Arya is a medical practitioner at Bareily.
He had given treatment to Ekra, the daughter of
the accused; by evidence of PW-124 Gulammohammad
Dar, PSI Kupwada [J&K] [Exh.673]. The muddamal
car no.KMT-413 was seized under Panchnama Exh.
671 on 11th October 2003 in presence of the said
witness. By evidence of PW-104-Natwarbhai
Fakirchand Kahar [Exh.590] and the panchnama
Exh.591, the witness identified the accused
Chandkhan in the court-room; by the evidence of
PW-60 Prahladbhai D. Marwadi [Exh.341] and the
panchnama Exh. 342; by the FSL report Exh.688.
118. The complicity of the accused no. 5-
Abdullamiya Yasinmiya Kadri is proved by the
evidence of PW-51 Abdul Rehman Panara [Exh.

314]; his statement Exh. 540 made under Section
164 CrPC; evidence of PW 52 Mohammed Munaf
Hajimiya Shaikh [Exh. 315]; his statement Exh.
541 made under Section 164 CrPC; the evidence of
PW-61 Bhikhabhai Thakore [Exh. 343]; the
panchanama Exh. 681.
119. We shall first examine the admissibility of
the confessional statements made by the accused
no.1 Altafhussain Akbarhussain Malek [Exh.456];
by the accused no. 2 Adambhai Sulemanbhai Ajmeri
[Exh. 458]; by the accused no.3 Mohmed Salim
Mohmed Hanif Shaikh [Exh.454]; by the accused
no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri
[Exh.460] and by the accused no.6 Shaanmiya @
Chandkhan Sajjadkhan [Exh.462] and their
probative value.
120. The aforesaid confessional statements were

made by the accused persons under Section 32 of
the POTA before one Shri Sanjay Gadhvi, Deputy
Commissioner of Police [Zone IV], Ahmedabad. The
said Shri Sanjay Gadhvi has been examined by the
prosecution [PW-78 : Exh.452]. The said Shri
Sanjay Gadhvi has given evidence about the
manner in which the confessional statements were
recorded. He has identified and proved the
confessional statements Exhs. 454, 456, 458, 460
and & 462. He has deposed before the Court that
on 16th September 2003, he had received message
from the Ahmedabad City Crime Branch that two
persons arrested in respect of the incidence of
the Akshardham attack at Gandhinagar had
volunteered to make confessional statements;
that the said persons were brought before the
deponent on 17th September 2003 in company of two
officials from the City Crime Branch for
recording their statements. The deponent sent
back the officials from the City Crime Branch
who had accompanied the accused. He first called

the accused no.3 Mohmed Salim in his office. The
deponent explained to the said Mohmed Salim the
provisions contained in the POTA and that the
statement made by him may be used against him
and that he was not bound to make such
statement. This explanation was also given to
the said Mohmed Salim in writing [Exh.453]. From
the demeanour of the said Mohmed Salim, the
deponent gathered that the said Mohmed Salim was
not ill-treated or pressurized or oppressed. The
deponent ascertained from the said Mohmed Salim
that the said Mohmed Salim was well acquainted
with the Gujarati language and that he desired
to give statement in gujarati. The said Mohmed
Salim was explained that the deponent was not
the member of the City Crime Branch and that he
was not connected with the investigation in
respect of the incident under investigation;
that he was a police officer equivalent to the
rank of Superintendent of Police from another
area; that the said Mohmed Salim was not

required to give statement under apprehension of
any kind. It was ascertained that the said
Mohmed Salim had volunteered to make statement
of his own volition and not under duress,
coercion or temptation. Having ensured of the
free will of the accused, the deponent allowed
the said Mohmed Salim around 15 minutes of
solitude and quietude to ponder over his
decision to make confessional statement. After
15 minutes, the said Mohmed Salim confirmed that
he wanted to make the statement out of the sense
of guilt and after considering the implication
of making such statement. The statement was
recorded by the writer as given by the said
Mohmed Salim; it was endorsed by the said Mohmed
Salim and was countersigned by the deponent
Sanjay Gadhvi. After recording the statement
also, the said Mohmed Salim was informed that he
may still decide not to make the statement and
that he was free to decide whether or not to
make the statement. Thus, the willingness of the

said Mohmed Salim Mohmed Hanif Shaikh to make
the confessional statement was ascertained -
first when he was brought before the deponent,
then after giving him some time to ponder over
his decision and third after the said Mohmad
Salim made the statement and signed it.
121. The said Sanjay Gadhvi recorded the
confessional statement of the accused no. 1
Altafhussain Akbarhussain Malek [Exh. 456] in
the same manner. He was explained the
implications of the confessional statement made
before the Police Officer under Section 32 of
the POTA in writing Exh.455. He also recorded
the confessional statement Exh.458 of the
accused no. 2 Adambhai Sulemanbhai Ajmeri and
statement Exh.460 of the accused no.4 Abdulkayum
@ Muftisaab Mohmedbhai Mansuri. The accused no.2
and the accused no.4 were brought before him on
24th September 2003 by the City Crime Branch.

Both of them were explained the implications of
the confessional statement made before the
police officer under Section 32 of the POTA in
writing Exhs.457 & Exh.459 respectively. The
said Sanjay Gadhvi has also deposed that the
said statements were signed by the makers of the
statements, the signatures of the maker of the
statement on each page of the statement was
counter signed by the deponent. The statements
recorded under Section 32 of the POTA were put
in a sealed envelope and were handed over to the
officers of the Crime Branch with a direction to
produce the statements and the makers of the
statements before the learned Chief Judicial
Magistrate within forty eight hours. The
telephonic instruction was given to the
Superintendent of Police Mr. Singhal. Mr.
Singhal was also instructed to inform the
deponent Sanjay Gadhvi as and when the accused
and the confessional statements made by them
were produced before the Chief Judicial

Magistrate. The confessional statement Exh.462
of the accused no. 6 Shaanmiya @ Chandkhan
Sajjadkhan was recorded by the said Sanjay
Gadhvi on 5th October 2003. The said Shaanmiya @
Chandkhan Sajjadkhan was explained verbally and
in writing in Hindi Exh. 461, the implication of
the statement made before the police officer
under Section 32 of the POTA and that he was not
required to make such statement. The said Sanjay
Gadhvi ascertained that the said Shaanmiya @
Chandkhan Sajjadkhan had volunteered to make the
statement; that he had not agreed to make the
statement under duress or coercion or
temptation; that the statement was made out of
the sense of guilt. The said Shaanmiya @
Chandkhan Sajjadkhan was also given around 10
minutes time to ponder over his decision to make
the statement. The said Shaanmiya @ Chandkhan
Sajjadkhan had expressed his willingness to make
the statement in Hindi and accordingly the
Statement Exh. 462 was recorded in Hindi.

122. Mr. Majid Memon has heavily relied upon
this evidence. He has submitted that the
deponent Sanjay Gadhvi recorded the above
referred confessional statements mechanically,
without having regard to the procedural
safeguards provided under Section 32 of the POTA
or those considered mandatory by the Hon'ble
Supreme Court in the above referred judgments.
123. We are afraid, we are unable to agree with
Mr. Majid Memon.
It is under Section 32 of the POTA, the
confessional statement made by an accused before
the Police Officer not below the rank of the
Superintendent of Police is, notwithstanding
anything in CrPC or in the Indian Evidence Act,

1872, made admissible in evidence against the
accused making the statement. The procedural
safeguards are inbuilt in the provisions
contained in sub-sections 2, 3, 4 and 5 of the
said Sec.32. The said Section 32 reads as under
:-
32. 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
provisions of this section, a
confession made by a persons 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 or
electronic device like cassettes, tapes
or sound tracks from out of which sound
or images can be reproduced, shall be
admissible in the trial of such person
for an offence under this Act or the
rules made thereunder.
[2] A police officer shall, before

recoding any confession made by a
person under sub-section (1), explain
to such person in writing that he is
not bound to make a confession and that
if he does so, it may be used against
him;
Provided that where such

person prefers to remain
silent, the police officer
shall not compel or induce him
to make any confession.
[3] The confession shall be recorded in

an atmosphere free from threat or
inducement and shall be in the same
language in which the person makes it.
[4] The person from whom a confession has

been recorded under sub-section (1), shall be
produced before the Court of a Chief
Metropolitan-Magistrate or the Court of a
Chief Judicial Magistrate along with the
original statement of confession, written or
recorded on mechanical or electronic device
within forty eight hours.
[5] The Chief metropolitan Magistrate or the

Chief Judicial Magistrate, shall, record the
statement, if any, made by the person so
produced and get his signature or thumb
impression and if there is any complaint of
torture, such person shall be directed to be
produced for medical examination before a
Medical Officer not lower in rank than an
Assistant Civil Surgeon and thereafter, he
shall be sent to Judicial custody.
124. Let us first examine whether the provisions
contained in the aforesaid Section 32 of the
POTA were scrupulously followed while recording
the confessional statements Exhs. 454, 456, 458,
460 and 462 by the PW 78-Shri Sanjay Gadhvi.
125. It is not in dispute that Shri Sanjay
Gadhvi [PW-78] was a Police Officer of the rank
of Superintendent of Police. As it emerges from
his evidence, each accused making the statement
was explained in writing about the implication
of the statement he was going to make before the
police officer and that he was not bound to make
such statement. Each accused making such
statement was given 10 to 15 minutes of solitude
to ponder over his decision to make the
confessional statement. The deponent Sanjay
Gadhvi had ascertained from each of the said
accused that he was willing to make the

confessional statement and that he was not under
duress or coercion or was not lured to make such
statement. Even after recording the statements,
each of the said accused was again explained the
implication of the statement made by the
concerned accused and was enquired whether he
still wanted to make the confessional statement.
Each of the said accused was also informed that
he need not be under any apprehension should he
decide not to make the confessional statement.
In our opinion, the mandatory procedure provided
under Section 32 of the Act of 2002 and the
procedural safeguards enumerated by the Hon'ble
Supreme Court in the above judgments had been
satisfactorily complied with by the deponent
Sanjay Gadhvi.
126. We do agree with Mr. Majid Memon that may
be the environment or the conditions were not
ideal for recording the confessional statements.

May be that ideally the confessional statement
were recorded in a special room fitted with
modern gadgets especially designed for the
purpose. But until such special arrangements are
made, the lack of ideal situation in itself
would not render the confessional statements
made by the accused, recorded by an authorized
police officer after properly following the
procedural safeguards, inadmissible in evidence.
127. Mr. Majid Memon has also joined issue in
respect of the accused being sent to the police
custody after recording their confessional
statements. Mr. Memon has submitted that it was
imperative that once the confessional statement
was recorded, the accused ought to have been
sent to the judicial custody. He could not have
been sent to the police custody from where he
was brought. Mr. Memon has also joined the issue
in respect the manner in which the confessional

statements recorded by PW-78 Shri Sanjay Gandhi
were sent to the Chief Judicial Magistrate,
through the officials of the Crime Branch.
128. The procedural safe-guards contained in sub-
sections 2,3,4 and 5 of Section 32 of the POTA do
not enjoin the Police [Recording Officer] to send
the person to judicial custody or not to send the
person to the police custody after recording his
confessional statement under Section 32 of the
POTA. On the contrary, sub-section 5 thereof
enjoins the Chief Metropolitan Magistrate or the
Chief Judicial Magistrate, in case the person
complains of torture, to send the person for
medical examination and thereafter to the judicial
custody. This necessarily means that the Chief
Metropolitan Magistrate or the Chief Judicial
Magistrate is obliged to send such person to
judicial custody only in case the person complains
of ill-treatment or torture by the police.

129. It is a matter of prudence that the accused
making confessional statement should have no
apprehension of mental or physical torture or
oppression of any kind in respect of the
statement he makes. It may, therefore, be
advisable that the accused who makes the
confessional statement is sent to the judicial
custody. In our opinion, mere fact that the
accused, after recording his statement, was sent
back to the police custody from where he was
brought, in itself would not make the
confessional statement inadmissible or
vulnerable. In the present case, as we shall
discuss soon, all the accused who made
confessional statements appeared before the
Chief Judicial Magistrate; they had no complain
against the police; they had admitted the
statement made by them; after making the
confessional statement, each accused volunteered

and cooperated with the police and led the
police to various pieces of evidence. In our
opinion, these attending facts tend to prove
that none of the accused making confessional
statement had been ill-treated by the police;
had been oppressed or lured to make the
confessional statement.
130. Shri Sanjay Gadhvi [PW-78] had placed the
confessional statements in an envelope and had
sealed the envelope. Though it was sent through
Crime Branch officials, the confessional
statements and the covering letters were
received by the Chief Judicial Magistrate-Mr.
S.M Padhya [PW-99] in the sealed cover. Besides,
each confessional statement was read over to the
concerned accused by Shri S.M Padhya [PW-99];
each accused admitted the statement made by him
and his signature; each accused also made
signature on each page of the statement before

Mr. Padhya [PW-99], such signature was counter-
signed by Mr. Padhya [PW-99].
131. In our opinion, the prosecution has proved
that the confessional statements of all the five
accused were properly recorded. The procedural
requirement under the statute were complied
with; the procedural safe guards referred to in
the above judgments also have been answered.
In none of the above judgments relied upon by
Mr. Memon, the Supreme Court has made absolute
proposition as to how much time the accused
should be given to ponder over his decision to
make confessional statement or that any time
less than the specified time granted to the
accused would vitiate the confessional
statement.
132. It may be noted that the purpose is to

ensure that no accused is under duress or
pressure or lured into making the confessional
statement. The aforesaid procedural safeguards
are observed to ensure that the accused makes
the statement of his own free will. If the
statutory safeguards are properly followed and
other facts indicate free will of the accused
making the confessional statement, such
statement is admissible in evidence and can be
relied upon as truthful account of the facts
stated in such statement.
133. Let us now examine whether the procedure to
produce the makers of the confessional
statements before the Chief Judicial Magistrate
or the Chief Metropolitan Magistrate prescribed
under sub-sections (4) & (5) of Section 32 of
the POTA were properly followed. As recorded
hereinabove, the confessional statements made by
the five accused persons were signed by the

recording officer Shri Sanjay Gadhvi and were
placed in a sealed cover. The Police had
produced the sealed cover containing statements
and the makers of the statements before the
Chief Metropolitan Magistrate within forty eight
hours, as specified in sub-section (4) of
Section 32 of the Act of 2002.
134. The Chief Judicial Magistrate, Ahmedabad
[Rural] Shri S.M Padhya has been examined by the
prosecution [PW 99 : Exh.568]. He has given
evidence before the Court that on 18th September
2003, he had received a request from the
Superintendent of Police Mr. Singhal to record
statements of the two accused. Pursuant to the
said request, the accused nos. 1 & 3 viz.,
Altafhussain Akbarhussain Malek and Mohmed Salim
Mohmed Hanif Shaikh were produced before him on
18th September 2003 at 3.30 in the afternoon.
Both the statements made before the Police were

recovered from the sealed envelope. Shri Padhya
first called the accused no.1 Altafhussain
Akbarhussain Malek in his chamber. In the
chamber were present Shri Padhya and the accused
no. 1 Altafhussain Akbarhussain Malek alone. Mr.
Padhya first inquired whether the accused was
ill treated by the police. The accused had
submitted that he had not been given ill-
treatment by the police. Thereafter, the
statement made by the accused before the police
was read over to the accused. The accused agreed
that the accused had made that statement and
that he had made endorsement on each page of the
statement. Once again, each page was signed by
the accused before Shri Padhya. The signature of
the accused was countersigned by Shri S.M
Padhya. Similarly, the accused no. 3 Mohmed
Salim Mohmed Hanif Shaikh was called in the
chamber of Shri Padhya. He too was inquired
whether the police had given any ill-treatment
to the accused. The accused asserted that he was

not given any ill-treatment by the police. After
recording the said statement of the accused, the
statement made by him before the police was read
over to him. The accused admitted the said
statement and his signature on each page of the
statement. He put his signature on each page of
the said statement before Shri Padhya. The
signature was countersigned by Shri Padhya.
After obtaining the signatures of the accused
and counter signing each signature, the
statements were placed in the envelopes Exhs.
570 & 571, duly sealed and signed by Mr. Padhya.
The statements were then sent to the Special
Court.
135. Similarly, in the afternoon of 25 th
September 2003, the accused no.2 Adambhai
Sulemanbhai Ajmeri and accused no. 4 Abdulkayum
@ Muftisaab Mohmedbhai Mansuri were produced
before Shri Padhya alongwith the sealed envelope

containing the statements made by them. Both the
accused were individually called in the Chamber
of Mr. Padhya. On inquiry by Mr. Padhya, both
had individually admitted that the police had
not ill-treated the concerned accused. Once
again the above referred procedure of reading
out the statement made by each accused, of
verifying the signature; of obtaining the
endorsement on the statement and counter-signing
the signatures was meticulously followed. After
that, both the statements were again placed in
envelopes Exh. 572 & 573, duly signed and sealed
by Mr. Padhya, and were sent to the Special
Court, under cover of letter Exh.574.
136. The accused no. 6 Shaanmiya @ Chandkhan
Sajjadkhan was produced before Mr. Padhya on 6th
October 2003 at around 10.30 in the morning. The
statement Exh. 462 made before the police was
also produced in a sealed envelope. As the said

accused Shaanmiya @ Chandkhan Sajjadkhan desired
to communicate in Hindi, he was asked in Hindi
whether he was given ill-treatment by the
police. He submitted that he had not been ill-
treated by the police. He admitted the statement
Exh. 462 made by him before the Police and his
signature on each page of the said statement.
The accused Shaanmiya signed the said statement
in presence of Mr. Padhya. His signature on each
page of the said statement was counter-signed by
Mr. Padhya. The said statement was once again
placed in an envelope Exh. 576. The envelope was
sealed and signed by Mr. Padhya and was sent to
the Special Court under cover of the letter
dated 6th October 2003 Exh.577.
137. In the cross examination by the defence
lawyers, Mr. Padhya admitted that he had not
inquired from the accused persons as to how long
they were in the police custody nor did he send

them to the judicial custody after recording
their statements. Mr. Padhya has deposed that he
did not think it necessary to send the accused
to the judicial custody. He has also admitted
that he had not recorded a specific statement
that the accused had made confessional statement
of his own volition. Mr. Padhya said that the
police had informed the concerned accused the
implication of the confessional statement
recorded under Section 32 of the POTA and that
the accused was not bound to make such
statement. He admitted that explanation given by
the police to the accused was in writing on a
separate piece of paper.
138. From the above evidence on record, we are
of the opinion that there is no gain-saying that
the statutory safeguards provided under Section
32 of the POTA had been followed. As to the
guidelines issued by the Hon'ble Supreme Court
in the above referred judgments, we may refer to

the case of State of Tamil Nadu through
Ors. [AIR 1999 SC 2640] and the case of Jayawant
Dattatraya Suryarao [2002 SCC Cri. 897].
Following the above judgments, the Hon'ble
Supreme Court in the matter of Devender Pal
Singh [2002 SCC Cri. 978], held, the initial
burden is on the prosecution to prove that all
the requirements under Section 15 of the TADA
and Rule 15 were complied with. Once that is
done, the prosecution discharges its burden,
then, it is for the accused to satisfy the Court
that the confessional statement was not made
voluntarily. The Court has also held, the
Recording Officer without granting any time may
straightaway proceed to record the confessional
statement but if he think it proper to grant
time ..it cannot be a mechanical exercise for
completing a formality.
Thus, there is no hard and fast rule as to how

much time the Recording Officer may grant to the
accused to reflect over his decision to make the
confessional statement. It is for the recording
officer to decide how much time he must consider
reasonable for that purpose. In the present
case, each accused making confessional statement
was granted around 15 minutes' time to reflect
over his decision to make confessional
statement. There is no evidence on record to
suggest that 15 minutes time was inadequate so
as to render the confessional statements
inadmissible in evidence or unreliable. It
should be noted that none of the five accused,
while making confessional statement, asked for
further time to ponder over. None of them had
made complaint about the inadequacy of such time
before the Chief Judicial Magistrate before whom
they were produced. Before the Chief Judicial
Magistrate also, they admitted the confession
made by them. Further, the contention that the
accused were in police custody for around forty

five days is absolutely unbelievable.
Similarly, sending the accused to judicial
custody after recording the confessional
statement is a matter of prudence and not a
statutory requirement. The accused had no
complaint of the police atrocity before the
Chief Judicial Magistrate. The Chief Judicial
Magistrate has made a specific note on the
writings Exh. 453, 455, 457, 459 and 461 that
the concerned accused was inquired of whether he
had suffered ill-treatment at the hands of the
police and that the concerned accused had no
compliant of ill-treatment by the police. In the
matter of Navjot Sandhu the Court held, ..the
non compliance with the judicial custody
requirement does not per se vitiate the
confession...
139. In absence of a statutory requirement to

that effect, in view of the above evidence on
record, we are of the opinion that sending the
accused to the police custody after recording
his confessional statement or in not sending the
accused to the judicial custody does not in
itself vitiate the confessional statement made
by that accused.
We also hold that the evidence of PW-51 Abdul
Raheman can be, inspite of his turning hostile,
relied upon.
139. In view of the statutory provisions, the
above referred rulings and the evidence on
record discussed hereinabove, we hold that the
confessional statements made by the accused no.
1-Altafhussain Akbarhussain Malek [Exh.456];
accused no. 2 Adambhai Sulemanbhai Ajmeri [Exh.
458]; accused no. 3 Mohmed Salim Mohmed Hanif
Shaikh [Exh. 454]; accused no.4 Abdulkayum @

Muftisaab Mohmedbhai Mansuri [Exh. 460] and
accused no. 6 Shaanmiya @ Chandkhan Sajjadkhan
[Exh. 462] are admissible in evidence.
140. We have perused the evidence of Defence
Witness-1 Ajju Shekher [Exh. 730]; Defence
Witness-2 Dr.Dipaliben Chandrakant Shah
[Exh.731]; Defence Witness-3 Rabiabibi Iqbalbhai
Mansuri [Exh. 732]; Defence Witness-4 Dr. Apurva
J. Acharya [Exh.736]; Defence Witness-5 Dr.
Bhargav Bechardas Jhaveri [Exh.737]; Defence
Witness-6 Dr. Jayantilal Virjibhai Satapara
[Exh.740] and Defence Witness-7 Dr. Bhavnaben C.
Patel [Exh.744].
The aforesaid evidence has been adduced by the
defence to support its claim that the accused
were arrested long before the recorded date and
that they were tortured by the police. The

aforesaid evidence refers to the accused no.2-
Adam Ajmeri and accused no.3-Mohmed Salim Mohmed
Hanif Shaikh. None of the aforesaid evidence
even remotely supports the defence version that
the accused nos. 2 & 3 were arrested long before
29th August 2003-the official date. The evidence
of the aforesaid doctors also do not prove the
police atrocity upon the accused during the
period they were in the police custody.
Although he had not made confessional statement
under Section 32 of the POTA, on 30 th October
2003 the accused no.5 Abdullamiya Yasinmiya
Kadri addressed a retraction letter [Exh.778] to
the learned Special Judge. He wrote that he was
taken away by the Crime Branch on 17th August
2003 at around 5.20 in the morning. He was
brought before the Police Officer-Shri Singhal.
Shri Singhal made some inquiries about the
relief camp. When he had no answer about certain

matters he did not know, Shri Singhal started
beating him up. He was then severely beaten by
Shri V.D Vanar and Shri R.I Patel. He could not
even stand up on his feet. Since then, every day
he was beaten up. When he denied complicity in
the Akshardham attack, he was threatened of
encounter and was confined in a lock-up. Since
then, he was every day called either by Shri
Singhal or by Shri V.D Vanar or by Shri R.I
Patel and was forced to admit the complicity in
the Akshardham attack. On his denial, he was
severely beaten and was threatened of more
torture. Then, he was given some written paper
and to copy it into his own handwriting or else
he was threatened of being killed. Thus, he was
coerced into writing the confessional statement
and to sign under it. He was also threatened not
to complain to the Court. He and the accused
no.4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri
and one another were taken to Srinagar on 5th
September 2003. The Police officers at Srinagar

also had made inquiry about the Akshardham
incidence.
141. The accused no.2- Adambhai Sulemanbhai
Ajmeri wrote a letter dated 29th October 2003
[Exh.779] addressed to the learned Special
Judge. He wrote that on 9th August 2003, he was
summoned by the officers of the Crime Branch. He
was taken away for interrogation under the
pretext that his auto-rickshaw was a stolen
vehicle. He was blind-folded and confined in an
unknown place. On 10th August 2003 in the
afternoon, he was taken to some senior officers
whom he later came to know as DCP-Shri Vanjara,
ACP-Shri Singhal, P.I Shri Vanar and PI Shri
Patel. He was asked by the said officers to
admit his complicity in the Akshardham
incidence. When he refused and said that he had
no connection whatsoever with the incidence, he
was hand cuffed and beaten till he became

unconscious. When he regained his conscious, he
was again taken to Shri Vanjara. Shri Vanjara
threatened him of encounter unless he admitted
the guilt. Once again, he was severely beaten
up. He was profusely bleeding and fell
conscious. Daily he was beaten up till he became
unconscious. On 16th August 2003, he was taken to
DCP Vanjara. He could not even walk. When he
asked for mercy, he was made to confess. Thus,
he was beaten continuously from 9th August 2003
till 28th August 2003. He was also threatened
against complaining to the Court. His wife was
summoned and was made to sign certain papers
under the pretext that her husband was to be
released. He complained of pain in the legs and
of aching tooth. On 5th September 2003, he was
taken to Srinagar and threatened of encounter.
Thus, he was made to sign confessional
statement. He too complained of disease and
urinary tract infection deliberately injected by
the police.
142. Accused no. 4 Abdulkayum @ Muftisaab
Mohmedbhai Mansuri also made a similar
complaint. He complained that he was taken away
on 17th August 2003 for interrogation. He was
brought to the Crime Branch at Gaekwad Haveli.
He was blind folded. He was taken to an officer,
whom he later came to know to be ACP Shri
Singhal. Before Shri Singhal, his blind folds
and hand cuffs were removed. After some
preliminaries Shri Singhal started beating him.
Once again, he was blind folded and hand cuffed
and detained in custody till 28th August 2003. He
was daily brought before the Police officers and
was badly beaten up. He was asked to agree to
his complicity in the Akshardham attack. When he
denied his complicity, he was physically and
mentally tortured till he fell unconscious. He
was also given electric shocks. He was illegally
confined till 29th August 2003. His father was

also threatened against engaging advocate or
approaching the Court. On 29th August 2003, he
was made to sign certain papers. He did not know
the contents of such papers. When he was
produced before the Court, he was threatened not
to complaint to the Court. After obtaining
remand order for fourteen days, he was
physically and mentally tortured. He was given
two writings in Urdu and was made to copy the
said writings under misrepresentation. He
complained of having been taken to Srinagar
[J&K] on 5th September 2003. He complained of
threats of encounter unless he agreed to his
complicity in the Akshardham attack. He was
brought back on 9th September 2003. On 13th
September 2003, he was brought before the Court.
After obtaining further remand for five days, he
was asked to sign on written confession papers
under coercion and duress. According to him, he
was kept in custody for around one and half
month; was tortured physically and mentally,

was given threats of encounter.
Similar retraction was made by the accused no.6
Shaanmiya @ Chandkhan Sajjadkhan on 18 th November
2003. According to him, he was summoned to the
Anantnag Police Station on 9th August 2003; he
was physically tortured and was threatened to
leave and go back to his own village. He was
threatened of encounter. When he gave threat of
making complaint to higher officers, he was
allowed to go. Before he reached his home, he
was again taken away by the police and tortured,
given electric currents and was threatened of an
encounter. He was sent to Srinagar. He was
detained in custody by the Srinagar STF for
around 15 days. During that period, he was
produced before the Court thrice. Once again, he
was tortured. His custody was then given to the
other officers who brought him to Ahmedabad by
plane. At Ahmedabad, he was informed that they

were the officers from the Ahmedabad City Crime
Branch. He was detained in the lock up. He was
asked to agree to what the officers in the Crime
Branch said. When he did not agree, he was
tortured. He was given currents. The said ill-
treatment by the police continued for fifteen
days till he was made to sign certain papers. He
was threatened and told not to make complaint to
the advocate or to the Doctor or to the Court.
On 16th October 2003, he was given some
intoxicant and brought to the Court and then was
sent to the Central Jail.
143. On 5th November 2003, the accused were
produced before the learned Special Judge from
the judicial custody. Each accused was given
audience before the learned Special Judge. Each
made an oral complaint of police atrocity during
the police custody. Each complained of being in
the police custody for along time and of police

atrocity. According to each accused, he was made
to sign the confessional statement prepared by
the police in coercion and duress. They had not
made the confessional statement of their own
free will.
144. The aforesaid retractions are ex facie
unbelievable. We have perused the Arrest Memos,
the remand orders and the medical reports [Pp.
2608 2711]. The accused nos. 1 to 5 were
arrested on 29th August 2003 under the arrest
memos. Each was arrested in presence of a member
of his family. The family of each accused was
informed in writing. Each accused was produced
before the Judicial Magistrate on the next day
the 30th August 2003. They were represented by
advocate Shri Shaukat A. Shaikh. None of the
accused had any complaint of police atrocity.
Again they were produced on 13th September 2003
before the Special Court. Each was represented

by the advocate Shaukat A. Shaikh . None had the
complaint against the Police. The accused no.6
was arrested on 12th October 2003 under a
transfer warrant. He was produced before the
Special Court on 13th October 2003. He was
represented by learned advocate Mr. Hasim
Qureshi. Under Order dated 18th September 2003,
the accused nos. 1, 3 & 5 were remanded to the
judicial custody. The accused nos. 2 & 4 were
remanded to the judicial custody under order
dated 26th September 2003. The accused no.6 was
remanded to the judicial custody under order
dated 6th October 2003.
During the period the accused were in police
custody, they were subjected to medical
examination at regular intervals. The medical
reports rule out ill-treatment or mental or
physical torture by the police. The accused nos.
1 to 4 and 6 were also produced before the Chief

Judicial Magistrate Shri SM Padhya [PW-99] for
verification of the confessional statements made
by them under Section 32 of the POTA. Before the
Chief Judicial Magistrate also, they had no
complaint of ill-treatment by the police.
Further, the conduct of the accused also
discloses free will of each accused in making
the confessional statement. After making the
confessional statement, each accused cooperated
with the police in further investigation. The
statements made in the confessional statements
are corroborated by the other evidence on
record, discussed hereinabove. The retractions
were clearly an afterthought and were tutored.
145. We now examine the evidence in respect of
the Urdu writings [Exh. 658].
The two writings in Urdu [Exh. 658] are the

center of controversy. Learned advocate Mr.
Majid Memon has vehemently argued that these
letters are planted by the police. He has
referred to the evidence of PW-42 Shailesh
Thakker [Exh. 266], to Inquest panchnama Exh.267
of the bodies of the deceased Fidayins, the post
mortem notes Exh. 492 and Exh. 493 and the
muddamal clothes of the Fidayins. He has
submitted that both Fidayins died of bullet
wounds in the counter attack by the NSG
commandos; the bodies were wounded and soiled in
blood; the clothes were tattered by the bullet
holes and the splinters. There were holes in the
clothes of the deceased Fidayins, particularly
on the pockets. He has submitted that in the
aforesaid circumstances, it is not possible that
two pieces of paper recovered from the body of
the deceased Fidayins were unsoiled and in
perfect condition. He has also submitted that
the expert opinion [Exh. 511] is not very
accurate and is not reliable.

It is true that the Urdu write up recovered from
the body of the deceased Fidayins were in
perfect condition inspite of the multiple
injuries received by the deceased Fidayins. But
then the truth is stranger than fiction. It is
not possible to disbelieve that two write ups in
Urdu [Exh.658] were recovered from the body of
the deceased Fidayins. We have already discussed
the evidence. Both write ups were signed by
Brig. Raj Sitapathi of National Security Guard;
were enlisted in List Exh. 524 prepared on the
spot, the muddamal articles as per List Exh.524
were received by the Divisional Police Officer
Shri G.L Singhal on the spot under Panchnama
Exh.440 signed by the Police Officer Shri
Prakashchandra Mahera [PW-105 : Exh.592]. The
evidence and the opinion Exh.511 of the
handwriting expert Shri JJ Patel [PW-89 :
Exh.507] prove that the said letters were

written in the hand of the accused no.4-Abdul
Kayum.
146. In the face of the contemporary evidence of
recovery of the Urdu write-ups Exh.658 from the
body of the Fidayins by Lt.Col. Lamba [PW-91];
the signature of Brig. Raj Sitapathi on the
write-ups Exh. 658; the receipt of the letters
by the Divisional Police Officer Shri G.L
Singhal [PW-126] under Panchnama Exh.440 signed
by PI Prakashchandra Mahera [PW-105], it is not
possible for us to accept the argument of Mr.
Memon. If we accept the argument of Mr. Memon,
we have to disbelieve the aforesaid evidence. In
other words, we have to hold that the Police had
such presence of mind that in the milieu of the
aftermath of the terrorist attack, the Police
thought of creating the evidence, found out a
person who knew Urdu, got him to write the
write-ups in handwriting that would match the

handwriting of the accused no.4- Abdulkayum @
Muftisaab Mohmedbhai Mansuri, made Lt. Col.
Lamba and Brig. Raj Sitapathi their accomplices
and that the two officers of the National
Security Guard readily agreed to be the
accomplices. So did the panch witness Vinodkumar
[PW-74] and Dilipsinh [PW-1]. This possibility
is too far fetched to be believed.
Section 120A IPC defines 'criminal conspiracy'.
120A. Definition of criminal conspiracy. ---

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.
Explanation -- xxxxx xxxxx xxxxx
Section 120B IPC provides for punishment of criminal

conspiracy.
120B. Punishment of criminal conspiracy. --- (1)

Whoever is a party to a criminal conspiracy to
commit an offence punishable with death,
imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where
no express provision is made in this Code for
the punishment of such a conspiracy, be punished
in the same manner as if he had abetted such
offence.
(2) xxxx xxxx xxxx.

'Abetment' is defined in Section 107 IPC.
Section 109 IPC provides for punishment of abetment.
109. Punishment of abetment if the act abetted

is committed in consequence and where no express
provision is made for its punishment. ---
Whoever abets any offence shall, if the act

abetted is committed in consequence of the
abetment, and no express provision is made by
this Code for the punishment of such abetment,
be punished with the punishment provided for the
offence.
Explanation:- An act or offence is said

to be committed in consequence of
abetment, when it is committed in
consequence of the instigation, or in
pursuance of the conspiracy, or with
the aid which constitutes the abetment.
Section 121 IPC refers to the offences relating
to waging war against the Government of India.
Section 121A relates to conspiracy to commit
offences punishable by section 121.
121A. Conspiracy to commit offences

punishable by section 121 Whoever within or
without India conspires to commit any of the
offences punishable by section 121, or
conspires to overawe, by means of criminal
force or the show of criminal force, the
Central Government or any State Government,
shall be punished with imprisonment for
life, or with imprisonment of either
description which may extent to ten years,
and shall also be liable to fine.
Explanation To constitute a conspiracy under

this section, it is not necessary that any
act or illegal omission shall make place in
pursuance thereof.
Section 153A IPC provides for punishment for

promoting enmity between different groups.
153A. Promoting enmity between different groups
on grounds of religion, race, place of birth,
residence, language, etc., and doing acts
prejudicial to maintenance of harmony. --- (1)
Whoever ---
(a) by words, either spoken or written, or by

signs or by visible representations or
otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth,
residence, language, caste or community or any
other ground whatsoever, disharmony or feelings
of enmity, hatred or ill-will between different
religious, racial, language or regional groups
or castes or communities, or
(b) commits any act which is prejudicial to the

maintenance of harmony between different
religious, racial, language or regional groups
or castes or communities, and which disturbs or
is likely to disturb the public tranquility, or
(c) organizes any exercise, movement, drill or

other similar activity intending that the
participants in such activity shall use or be
trained to use criminal force or violence or
knowing it to be likely that the participants in
such activity will use or be trained to use
criminal force or violence, or participates in
such activity intending to use or be trained to
use criminal force or violence or knowing it to
be likely that the participants in such activity
will use or be trained to use criminal force or
violence, against any religious, racial,
language or regional group or caste or community
and such activity for any reason whatsoever
causes or is likely to cause fear or alarm or a
feeling of insecurity amongst members of such
religious, racial, language or regional group or
caste or community, shall be punished with
imprisonment which may extend to three years, or
with fine, or with both.
Offence committed in place of worship, etc. ---

(2) Whoever commits an offence specified in sub-
section (1) in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies, shall be
punished with imprisonment which may extend to
give years and shall also be liable to fine.
The words 'terrorist acts' are defined in clause (g)
of sub-section (1) of Section 2 of the Prevention of
Terrorism Act, 2002. Sections 3, 20, 21 and 22 of
the POTA provide for offences relating to
participation of, support to and fund raising for
the terrorist organizations.
Section 3 of POTA provides for punishment for

terrorist acts.
3. Punishment for terrorist acts. --- (1)

Whoever, ---
(a) with intent to threaten the unity,

integrity, security or sovereignty of India or
to strike terror in the people or any section of
the people does any act or thing by using bombs,
dynamite or other explosive substances or
inflammable substances or firearms or other
lethal weapons or poisons or noxious gases or
other chemicals or by any other substances
(whether biological or otherwise) of a hazardous
nature or by any other means whatsoever, in such
a manner as to cause, or likely to cause death
of, or injuries to any person or persons or loss
of, or damage to, or destruction of, property or
disruption of any supplies or services essential
to the life of the community or causes damage or
destruction of any property or equipment used or
intended to be used for the defence of India or
in connection with any other purposes of the
Government of India, any State Government or any
of their agencies, or detains any person and
threatens to kill or injure such person in order
to compel the Government or any other person to
do or abstain from doing any act;
(b) is or continues to be a member of an

association declared unlawful under the Unlawful
Activities (Prevention) Act, 1967 (37 of 1967),
or voluntarily does an act aiding or promoting
in any manner the objects of such association
and in either case is in possession of any
unlicensed firearms, ammunition, explosive or
other instrument or substance capable of causing
mass destruction and commits any act resulting
in loss of human life or grievous injury to any
person or causes significant damage to any
property, commits a terrorist act.
Explanation For the purposes of this sub-
section, a terrorist actshall include the act of
raising funds intended for the purpose of
terrorism.
2. Whoever commits a terrorist act, shall, ---
(a) if such act has resulted in the death of any

person, be punishable with death or imprisonment
for life and shall also be liable to fine;
(b) in any other case, be punishable with

imprisonment for a term which shall not be less
than five years but which may extend to
imprisonment for life and shall also be liable
to fine.
3. Whoever conspires or attempts to commit, or

advocates, abets, advises or incites or
knowingly facilitates the commission of, a
terrorist act or any act preparatory to a
terrorist act, shall be punishable with
imprisonment for a term which shall not be less
than five years but which may extend to
imprisonment for life and shall also be liable
to fine.
4. Whoever voluntarily harbours or conceals, or
attempts to harbour or conceal, any person
knowing that such person is a terrorist shall be
punishable with imprisonment for a term which
shall not be less than three years but which may
extend to imprisonment for life and shall also
be liable to fine.
5. Any person who is a member of a terrorist gang
or a terrorist organization, which is involved
in terrorist acts, shall be punishable with
imprisonment for a term which may extend to
imprisonment for life, or with fine which may
extend to rupees ten lakh, or with both.
Explanation : xxxxx xxxxx xxxxx
(6)Whoever knowingly holds any property derived

or obtained from commission of any terrorist act
or has been acquired through the terrorist funds
shall be punishable with imprisonment for a term
which may extend to imprisonment for life, or
with fine which may extend to rupees ten lakh,
or with both.
(7)Whoever threatens any person who is a witness
or any other person in whom such witness may be
interested, with violence, or wrongfully
restrains or confines the witness, or any other
person in whom the witness may be interested, or
does any other unlawful act with the said
intent, shall be punishable with imprisonment
which may extend to three years and fine.
Section 20 of POTA defines 'offence relating to
membership of a terrorist organisation'.
20. Offence relating to membership of a

terrorist organisation. --- (1) A person commits
an offence if he belongs or professes to belong
to a terrorist organisation:
Provided that this sub-section shall not apply

where the person charged is able to prove ---
(a) that the organisation was not declared as a

terrorist organisation at the time when he
became a member or began to profess to be a
member; and
(b) that he has not taken part in the activities

of the organisation at any time during its
inclusion in the Schedule as a terrorist
organisation.
(2) A person guilty of an offence under this

section shall be liable, on conviction, to
imprisonment for a term not exceeding ten years,
or with fine, or with both.
Section 21 of POTA defines 'offence relating to

support given to a terrorist organisation'.
21.Offence relating to support given to a

terrorist organisation. ---
1. A person commits an offence if --- (a) he

invites support for a terrorist organisation,
and (b) the support is not, or is not restricted
to, the provision of money or other property
within the meaning of section 22.
2. A person commits an offence if he arranges,
manages or assists in arranging or managing a
meeting which he knows is (a) to support a
terrorist organisation, or (b) to further the
activities of a terrorist organisation, or (c)
to be addressed by a person who belongs or
professes to belong to a terrorist organisation.
3. A person commits an offence if he addresses a
meeting for the purpose of encouraging support
for a terrorist organisation or to further its
activities.
4. A person guilty of an offence under this section
shall be liable on conviction, to imprisonment
for a term not exceeding ten years, or with
fine, or with both.
Section 22 of POTA defines 'fund raising for a

terrorist organisation to be an offence':
22. Fund raising for a terrorist organisation to

be an offence. ---
1. A person commits an offence if he -- (a) invites

another to provide money or other property, and
(b) intends that it should be used, or has
reasonable cause to suspect that it may be used,
for the purposes of terrorism.
2. A person commits an offence if he -- (a)
receives money or other property, and (b)
intends that it should be used, or has
reasonable cause to suspect that it may be used,
for the purposes of terrorism.
3. A person commits an offence if he (a) provides
money or other property, and (b) knows or has
reasonable cause to suspect that it will or may
be used for the purposes of terrorism.
4. In this section, a reference to the provision of
money or other property is a reference to its
being given, lent or otherwise made available,
whether or not for consideration.
5. A person guilty of an offence under this section
shall be liable on conviction to imprisonment
for a term not exceeding fourteen years, or with
fine, or with both.
26. Power of Special Courts with respect to other
offences :
(1) xx xx xx
(2) If, in the course of any trial under this
Act of any offence, it is found that the accused
person has committed any other offence under
this Act or under any other law, the Special
Court may convict such person of such other
offence and pass any sentence or award
punishment authorized by this Act or such rule
or, as the case may be, under such other law.
Section 2 of the Explosive Substances Act, 1908
defines 'explosive substance' and 'special category
explosive substance'. Sections 3, 4, 5 and 6 thereof
provide for punishment for offences relating to
causing explosion and making or possessing
explosives.
2. Definition. --- In this Act, ---
(a) the expression 'explosive substance' which

shall be deemed to include any materials for
making any explosive substance; also any
apparatus, machine, implement or material used,
or intended to be used, or adapted for causing,
or aiding in causing, any explosion in or with
any explosive substance; also any part of any
such apparatus, machine or implement;
(b) the expression 'special category explosive
substance' shall be deemed to include research
development explosive (RDX), penta erythritol
tetra nitrate (PETN), high melting explosive
(HMX), tri nitro toluene (TNT), low temprature
plastic explosive (LTPE), composition exploding
(CE) (2,4,6 phenyl methyl nitramine or tetryl),
OCTOL (mixture of high melting explosive and tri
nitro toluene), plastic explosive kirkee-1 (PEK-
1) and RDX/TNT compounds and other similar type
of explosives and a combination thereof and
remote control devices causing explosion and any
other substance and a combination thereof which
the Central Government may, by notification in
the Official Gazette, specify for the purposes
of this Act.
3. Punishment for causing explosion likely

to endanger life or property. --- Any
person who unlawfully and maliciously
causes by --- (a) any explosive substance
an explosion of a nature likely to endanger
life or to cause serious injury to property
shall, whether any injury to person or
property has been actually caused or not,
be punished with imprisonment for life, or
with rigorous imprisonment of either
description which shall not be less than
ten years, and shall also be liable to
fine; (b) any special category explosive
substance an explosion of a nature likely
to endanger life or to cause serious injury
to property shall, whether any injury to
person or property has been actually caused
or not, be punished with death, or rigorous
imprisonment for life, and shall also be
liable to fine.
4. Punishment for attempt to cause

explosion, or for making or keeping
explosive with intent to endanger life or
property. --- Any person who unlawfully and
maliciously --- (a) does any act with
intent to cause by an explosive substance
or special category explosive substance, or
conspires to cause by an explosive
substance or special category explosive
substance, an explosion of a nature likely
to endanger life or to cause serious injury
to property; or (b) makes or has in his
possession or under his control any
explosive substance or special category
explosive substance with intent by means
thereof to endanger life, or cause serious
injury to property, or to enable any other
person by means thereof to endanger life or
cause serious injury to property in India,
shall, whether any explosion does or does
not take place and whether any injury to
person or property has been actually caused
or not, be punished,-- (i) in the case of
any explosive substance, with imprisonment
for life, or with imprisonment of either
description for a term which may extend to
fine; (ii) in the case of any special
category explosive substance, with rigorous
imprisonment for life, or with rigorous
imprisonment for a term which may extend to
fine.
5. Punishment for making or possessing

explosives under suspicious circumstances.
--- Any person who makes or knowingly has
in his possession or under his control any
explosive substance or special category
explosive substance, under such
circumstances as to give rise to a
reasonable suspicion that he is not making
it or does not have it in his possession or
under his control for a lawful object,
shall, unless he can show that he made it
or had it in his possession or under his
control for a lawful object, be punished, -
-- (a) in the case of any explosive
substance, with imprisonment for a term
which may extend to ten years, and shall
also be liable to fine; (b) in the case of
any special category explosive substance,
with rigorous imprisonment for life, or
with rigorous imprisonment for a term which
may extend to ten years, and shall also be
liable to fine.
6. Punishment of abettors. --- Any person

who by the supply of or solicitation for
money, the providing of premises, the
supply of materials, or in any manner
whatsoever, procures, counsels, aids, abets
or is accessory to, the commission of any
offence under this Act shall be punished
with the punishment provided for the
offence.
Section 27 of the Arms Act, 1959 provides for
punishment for using arms, etc. ---
1. Whoever uses any arms or ammunition in

contravention of section 5 shall be punishable
with imprisonment for a term which shall not be
less than three years but which may extend to
seven years and shall also be liable to fine.
2. Whoever uses any prohibited arms or prohibited

ammunition in contravention of section 7 shall
be punishable with imprisonment for a term which
shall not be less than seven years but which may
extend to imprisonment for life and shall also
be liable to fine.
3. Whoever uses any prohibited arms or

prohibited ammunition or does any act in
contravention of section 7 and such use or
act results in the death of any other
person, shall be punishable with death.
147. We have considered the charge against the
accused, the evidence on record, the legal
provisions and the law settled in the above
referred judgments.
148. We are of the opinion that the offence of
criminal conspiracy of mass killing of Hindus in
Gujarat; of promoting enmity between the two
groups on ground of religion; of inviting
support for a terrorist organization; of
arranging and managing meeting/s to support
terrorist organization; of inviting another to
provide money, of receiving money and of
providing money for the purpose of terrorism; of
use of prohibited arms and explosives; of
terrorist act of mass killing without
provocation; of attempt to murder and of
abetment are established. It is established that

some persons, presumably of foreign origin
[Pakistan & Saudi Arabia], decided to wreak
vengeance for the loss suffered by the muslims
during the communal riots that broke out in the
State of Gujarat after some 50 Kar Sevaks were
burnt alive at Godhra in Sabarmati Express train
on 27th September 2002. They made a master plan
of mass killing of Hindus in the State of
Gujarat. To carry out their plan to retaliate,
those originators targeted the young muslims
from India and particularly from Gujarat working
in Saudi Arabia to earn their livelihood. They
instigated young muslims from Gujarat to become
members of the terrorist groups Jaish-E-Mohammed
and/or Lashker-e-Toiba. They were, by aggressive
address and fiery speech, instigated to rise to
fight for Islam and in the name of Islam to
target the Hindus.

They were shown video clippings of the loss of
property and person suffered by the muslims in
the communal riots. They were made to make
contribution for carrying out the criminal
conspiracy hatched by them. These young muslims
knowingly became party to the conspiracy, made
contribution and collected funds and passed over
to Jaish-E-Mohammad to carry out the conspiracy.
They also assisted in carrying out the
conspiracy by distributing pamphlets and the
cassettes containing Jihadi literature. Some of
them picked up the cause actively and became
active party to the conspiracy. Not only they
contributed to the fund, they also contributed
man-hours and used their contacts in Ahmedabad
to further the conspiracy. Ultimately, with the
funds, aid and assistance provided by the young
muslims working in Saudi Arabia, their contacts
and relations in the city of Ahmedabad, the

active members of the Jaish-E-Mohammed from
Hyderabad and Kashmir, carried the conspiracy to
its logical end i.e., of mass killing of Hindus
by choosing the most appropriate place i.e.,
Akshardham. Those killed in the massacre were
innocent, unsuspecting Hindus who happened to
have visited the Akshardham temple on the
fateful day and time; some for religious
purpose, some for site-seeing and some may have
visited the temple for a pleasant evening. They
fell victim to a meticulously planned criminal
conspiracy and died or were injured at the hands
of the Fidayins [two unknown persons of unknown
origin] for no reason whatsoever.
We believe that apart from the aforesaid obvious
victims of the crime, the accused themselves are
the victims of the same crime originated by the
foreign nationals on the foreign land to which

they are party. The accused got involved with
full knowledge of what was the aim of the
conspiracy and what would be the consequences.
They enthusiastically carried out their part of
the conspiracy ruthlessly without considering
the consequence that would fall upon them and
their families. We look at them as the victims
of the religious fanaticism.
149. We are alive of the fact that these accused
have a clean history. They do not have any
criminal background or criminal antecedents.
They are ordinary citizens of India. Some of
them left their family in India and went to
Saudi Arabia with a view to earning little more
and to providing better life to their family.
Instead, they are facing consequences of a gory
crime because they

sought solidarity with foreign nationals in the
name of religion and Jihad. The gravity of the
crime they have committed far outweigh these
mitigating factors.
150. The accused no.1 Altafhussain Akbarhussain
Malek, a resident of Ahmedabad working at Riyadh
in Saudi Arabia. He instigated other muslims in
Saudi Arabia to make contribution to the
aforesaid groups Jaish-E-Mohammed and/or
Lashker-e-Toibato carry out the criminal
conspiracy. Thus, he is proved to have committed
offence punishable under Section 22 [1] of the
POTA.
151. We confirm his conviction for the offence
punishable under Section 22 [1] of the POTA and
the sentence of rigorous imprisonment for 5

years and a fine of Rs. 5,000/= and simple
imprisonment for six months in default of
payment of fine.
152. The accused no.2 Adambhai Sulemanbhai
Ajmeri is a resident of Ahmedabad. He is the
brother of the absconding accused no. 4
Abdulrashid Suleman Ajmeri. The said Abdulrashid
Suleman Ajmeri is alleged to have actively
participated in carrying out the criminal
conspiracy through the accused no. 2 Adambhai
Sulemanbhai Ajmeri. To us, it appears that these
accused has played a pivotal role in carrying
out the conspiracy. He was the most
enthusiastic. He readily agreed to be a party to
the conspiracy. It was he who involved other
accused in the crime. He contacted the accused
nos. 4 Abdulkayum @ Muftisaab Mohmedbhai Mansuri
and accused no. 5 Abdullamiya Yasinmiya Kadri.

He went to Hyderabad to meet Ayub and Khalid
[absconding accused nos. 23 & 12]. He went to
railway station to receive Ayub and the
Fidayins. He took them to recci Ahmedabad and
Gandhinagar. He arranged for their lodging and
boarding, he received the money to fund the
conspiracy. At the end, he helped Ayub
[absconding accused no. 23] to safely get away
from Ahmedabad. He went a yard farther. At the
time of the incidence, though it was not
required of him to be there, he went all the way
to Akshardham, probably to ensure that the
Fidayins had successfully entered the Akshardham
precinct and had commenced their mission and to
bring the news of victory to the others waiting.
But for the assistance provided by this accused
and all the arrangements [lodging, boarding &
logistic] he made, the mission could not have
been accomplished. As a co-conspirator, he is
guilty of the heinous crime of striking terror,

of killing 33 persons and of attempting to
commit murder of some 86 persons, of using fire
arms like assault rifles and prohibited
explosives.
153. We confirm the conviction and sentence of
the accused for the offence punishable under
Section 3 (3) of the POTA and the sentence of
life imprisonment and a fine of Rs. 10,000/= and
simple imprisonment of two years in default in
payment of fine; for offence punishable under
Section 3 (3) read with Section 5 of the POTA
and the sentence of rigorous imprisonment for 10
imprisonment for one year in case of default in
Section 22 [2] of the POTA and the sentence of
rigorous imprisonment for 10 years and a fine of
Rs. 20,0000/= and simple imprisonment for one

year, in default of payment of fine; for offence
punishable under Section 120B IPC read with
Section 4 of the Explosive Substance Act and the
sentence of rigorous imprisonment for 10 years
and a fine of Rs.10,000/= and simple
imprisonment for two years in default of payment
of fine; for the offence punishable under
Section 120B IPC read with Sections 3 & 6 of the
Explosive Substances Act and the sentence of
life imprisonment and a fine of Rs.20,000/=; for
offence punishable under Section 120B IPC read
with Section 307 IPC and the sentence of life
imprisonment and a fine of Rs.20,000/= and
simple imprisonment for one year in default of
Section 120B read with Section 27 of the Arms
Act and the sentence of rigorous imprisonment
for seven years and a fine of Rs. 10,000/= and
simple imprisonment for one year in default in
payment of fine.
154. We confirm the conviction of the accused
for offence punishable under Section 120B IPC
read with Section 302 IPC and the death sentence
[hanging by neck till death] and a fine of
Rs.25,000/=.
155. The accused no. 3 Mohmed Salim Mohmed Hanif
Shaikh is a young muslim from Ahmedabad who was
working at Riyadh in Saudi Arabia. He is one of
the active conspirators. When instigated by the
leaders of the terrorist group 'Jaish-E-
Mohammed, he rose to the occasion and fuelled
the conspiracy in the name of Islam. He allowed
the co-conspirators to use his residence for
spreading the religious fanaticism and nurtured
it. The young muslims who naturally gathered at
his house for an evening were made the target.

They were roused to become co-conspirators. In
the name of Jihad, they were called upon to make
contribution to the conspiracy; they were shown
the video clippings. It was this accused who
gathered them and took them to attend the
meetings arranged by the terrorist groups
addressed by those fanatic leaders. He became
member of the terrorist group Jaish-E-Mohammed
and of Sippa-E-Saheba. He also took over the
leadership. He distributed pamphlets, made copy
of the cassettes addressed by the terrorist
leaders and distributed them. He instigated
others to make generous contribution; he himself
made the contribution with full knowledge that
the collection was for funding the terrorist
group Jaish-E-Mohammadto fund the massacre
[Katle aam] of the Hindus.
156. We confirm the conviction and sentence of

the accused no.3 Mohmed Salim Mohmed Hanif
Shaikh for offence punishable under Section 3
(3) of the POTA and the sentence of life
imprisonment and a fine of Rs. 10,000/= and a
simple imprisonment for two years in default of
Section 5 of the POTA and the sentence of
Rs. 5,000/= and simple imprisonment for one year
in default of payment of fine; for offence
punishable under Section 20 of the POTA and the
sentence of rigorous imprisonment for five years
and a fine of Rs. 20,000/= and rigorous
imprisonment for one year in default of payment
of fine; for offence punishable under Section 21
(2) of the POTA and the sentence of rigorous
imprisonment for 10 years and a fine of Rs.
10,000/= and simple imprisonment for one year in
default of payment of fine; for offence
punishable under Section 22 [1] of the POTA and

the sentence of rigorous imprisonment for 10
years and a fine of Rs.20,000/= and simple
of fine; for offence punishable under Section
120B IPC read with Section 4 of the Explosive
Substances Act and the sentence of rigorous
10,000/= and simple imprisonment for two years,
in default of payment of fine; for the offence
Sections 3 & 6 of the Explosive Substances Act
and the sentence of life imprisonment and a fine
of Rs. 20,000/=; for offence punishable under
Section 120B IPC read with Section 302 IPC and
the sentence of rigorous imprisonment for life
[till he is alive] and a fine of Rs. 25,000/=;
read with Section 307 IPC and the sentence of
life imprisonment and a fine of Rs. 20,000/= and
simple imprisonment for 1 year in default of

Section 120B IPC read with Section 121A of the
IPC and the sentence of rigorous imprisonment
for 10 years and a fine of Rs. 5,000/= and
simple imprisonment for one year, in default of
payment of fine; for the offence punishable
under Section 120B IPC read with Section 153A
IPC and the sentence of rigorous imprisonment
for 3 years and a fine of Rs. 5,000/= and simple
under Section 120B read with Section 27 of the
Arms Act and the sentence of rigorous
default of payment of fine.
157. The accused no.4 Abdulkayum @ Muftisaab
Mohmedbhai Mansuri is an Imam in the Mosque and

a teacher in Madressa at Ahmedabad. He is a
learned man, knowing six languages viz., Urdu,
Arabic, Gujarati, Hindi and a little Persian and
English. This accused also took the bait
greedily when he was offered to be a co-
conspirator in a crime of this magnitude. He
guided the other conspirators through to the
end. He allowed the co-conspirators to gather at
the Bavahir Hall and he actively guided the
other conspirators. He received the Fidayins and
Ayub [absconding accused no.23] at Bavahir Hall.
He performed namaaz for their victory and the
well being. He wrote the Urdu writings
containing casting remarks against the Hindus.
He helped packing the weapons, rifles,
ammunitions, hand grenades for the fidayins to
carry them to Akshardham to commit the crime. He
saw them off to their mission.

158. For the aforesaid offences proved against
the accused no.4 Abdulkayum @ Muftisaab
Mohmedbhai Mansuri, we confirm the conviction
and the sentence of the accused for the offence
punishable under Section 3 (3) of the POTA and
the sentence of life imprisonment and a fine of
Rs.10,000/= and simple imprisonment for two
years in default of payment of fine; for offence
punishable under Section 3 (3) read with Section
5 of the POTA and the sentence of rigorous
imprisonment for 10 years and a fine of
Rs.5,000/= and simple imprisonment for one year
in case or default in payment of fine; for the
offence punishable under Section 120B IPC read
with Section 4 of the Explosive Substances Act
and the sentence of rigorous imprisonment for 10
years and a fine of Rs.10,000/= and simple
of fine; for the offence punishable under

Section 120B IPC read with Sections 3 & 6 of the
life imprisonment and a fine of Rs. 20,000/=;
read with Section 307 IPC and the sentence life
imprisonment and a fine of Rs. 20,000/= and
simple imprisonment for one year in default of
Section 120B read with Section 153A IPC and the
sentence of rigorous imprisonment for three
under Section 120B IPC read with Section 27 of
the Arms Act and the sentence of rigorous
default of payment of fine; and for the offence
Section 121-A IPC and the sentence of rigorous

5,000/= and simple imprisonment for one year, in
default of payment of fine. We confirm the
conviction and sentence for offence punishable
under Section 120B IPC read with Section 302 IPC
and the death sentence [hanging by neck till
death] and imposition of the fine of Rs.
25,000/=.
159. The accused no. 5 Abdullamiya Yasinmiya
Kadri is a Maulvi. His complicity in the crime
is established. He guided the other conspirators
through to the end, peformed namaaz for the
Fidayins. He helped packing the weapons, rifles,
ammunition, hand grenades for the fidayins to
carry them to Akshardham to commit the crime.
We confirm his conviction for the offence

punishable under Section 3 {3} of the POTA and
the sentence of imprisonment for 10 years and a
fine of Rs. 10,000/= and simple imprisonment for
two years in default of payment of fine imposed
by the learned Special Judge.
160. Accused No.6 Shaanmiya @ Chandkhan
Sajjadkhan is the resident of Anantnag
[Kashmir]. He was recruited by Zuber of Kashmir,
an active member of Jaish-E-Mohammed [since
deceased] for transporting the weapons to
Ahmedabad. He received a sum of Rs. 30,000/= for
that. He bought the muddamal Car, modified it to
create a concealed cavity to carry weapons;
loaded the weapons in the Car and brought them
to Bareily. In Bareily, he removed the weapons
from the Car, wrapped them in the mattresses and
brought them to Ahmedabad by railway train. At
Ahmedabad, he handed over the weapons to the

Fidayins, presumably through Ayub [absconding
accused no. 23]. We have noted the deftness with
which he unloaded the weapons and explosives
from the car and concealed them in the
mattresses and packed them in a suitcase and a
holdall.
Thus, the accused no. 6 Shaanmiya @ Chandkhan
Sajjadkhan is proved to be the party to the
crime. We confirm the conviction of the accused
no. 6 Shaanmiya @ Chandkhan Sajjadkhan for the
offences punishable under Section 3 {3} of the
POTA and the sentence of life imprisonment and a
fine of Rs. 10,000/= and simple imprisonment for
two years in default of payment of fine; for
offence punishable under Section 3 (3) read with
Section 5 of the POTA and the sentence of
Rs. 5,000/= and simple imprisonment for one year

in case or default in payment of fine; for the
offence punishable under Section 3 [1] of the
POTA and the sentence of life imprisonment and a
fine of Rs. 25,000/=; for the offence punishable
under Section 120B read with Section 4 of the
Rs. 10,000/= and simple imprisonment for two
years in default of payment of fine; for offence
Sections 3 & 6 of the Explosive Substances Act
and the sentence for life imprisonment and a
fine of Rs.20,000/=; for offence punishable
and the sentence of life imprisonment and a fine
of Rs. 20,000/= and a simple imprisonment for
one year in default of payment of fine; for
offence punishable under Section 120B read with
Section 25 [1](AA) of the Arms Act and the
sentence of rigorous imprisonment for 7 years

and a fine of Rs. 10,000/= and simple
of fine.
We confirm his conviction for offence punishable
and the death sentence [hanging by neck till
death] and a fine of Rs. 25,000/=.
161. In the result, we dismiss the Criminal
Appeal Nos. 1328 of 2006 & 1675 of 2006. The
substantive sentence passed against each accused
are ordered to run concurrent. The convicts will
be entitled to set-off wherever applicable.
The death sentence passed against the accused
no.2 Adambhai Sulemanbhai Ajmeri, accused no. 4
Abdulkayum @ Muftisaab Mohmedbhai Mansuri and
the accused no.6 Shaanmiya @ Chandkhan

Sajjadkhan is confirmed.
162. We end with a deep sense of sorrow. Some
foreign nationals, presumably religious fanatics
and members of the terrorist groups Jaish-E-
Mohammed and Lashker-E-Toiba, out of hatred for
Hindus, decided to commit crime against the
Hindus in Gujarat and accomplished their ill-
will without any loss to themselves. These
foreign nationals utilized Indian nationals [the
accused and the others] and their hard earned
money to accomplish their cherished dream of
massacre of the Hindus - the men, women and
children of all ages and an unborn child too.
This could have been avoided had the accused
nos. 4 & 5 the community leaders been vigilant.
Instead of fueling the hatred, they could have
utilized their authority to pacify the people
and to douse the sense of hatred. The carnage
which could have easily been avoided was

accomplished.
163. Not only that those innocents and their
family members are the only victims but the
accused before the Court too are the victims of
the same crime as they are going to lose their
life to the gallows or in jail. Their families
will have to suffer for rest of their lives. We
only wish that these young people who are easily
lured into committing the crime in the name of
religion are also made aware of the consequences
that may befall upon them and their families.
Their energy and idiosyncrasies could be
diverted for constructive work for betterment of
themselves and the society.
{Ms. R.M Doshit, J.}

{K.M Thaker, J.}
Prakash*

Akshardham Attack Case Judgement

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CC/2/2006 202/208 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL CONFIRMATION CASE No. 2 of 2006

CRIMINAL APPEAL No. 1675 of 2006

CRIMINAL APPEAL No. 1328 of 2006

For Approval and Signature:

HONOURABLE MR.JUSTICE K.M.THAKER

STATE OF GUJARAT - Appellant(s)

ADAMBHAI SULEMANBHAI AJMERI & Ors. - Respondent(s)

ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT)

1. This group of matters arise from the judgment and

order dated 1st July 2006 passed by the learned

Special Judge, Ahmedabad in POTA Case No. 16 of

2003. A reference has been made under Section 366

CrPC for confirmation of the death sentence imposed

upon the accused no.2 - Adambhai Sulemanbhai Ajmeri;

accused no.4 - Abdul Kayum @ Muftisab Mohammedbhai

Mansuri and accused no.6 - Shaanmiya @ Chandkhan

Sajjadkhan. The Appeals have been preferred by the

accused against the conviction recorded against them

and the sentence imposed.

2. The order of acquittal of the accused of

ACCUSED NO 1 : ALTAFHUSSAIN AKBARHUSSAIN MALEK has

CONVICTION PUNISHMENT IMPOSED

The accused is acquitted of the rest of the charges.

ACCUSED NO: 2 ADAMBHAI SULEMANBHAI AJMERI has been

CONVICTION PUNISHMENT IMPOSED

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Death Penalty (hanging by neck till

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Rigorous Imprisonment for 7 years and a

The accused is acquitted of the rest of the

ACCUSED NO : 3 MOHMED SALIM HANIF SHAIKH has been

CONVICTION PUNISHMENT IMPOSED

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Rigorous Imprisonment for 3 years and a

For offence punishable under Rigorous Imprisonment for 7 years and a

The accused is acquitted of the rest of the

MANSURI has been convicted and sentenced as under:-

CONVICTION PUNISHMENT IMPOSED

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Rigorous Imprisonment for 10 years and

CONVICTION PUNISHMENT IMPOSED

For offence punishable under Rigorous Imprisonment for 10 years and

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Death Penalty (hanging by neck till

For offence punishable under Life Imprisonment and a fine of Rs.

For offence punishable under Sec. Rigorous Imprisonment for a period of 7

The accused is acquitted of the rest of the

ACCUSED NO: 5 ABDULLAMIYA YASINMIYA KADRI has been

CONVICTION PUNISHMENT IMPOSED

The accused is acquitted of the rest of the

ACCUSED NO: 6 SHAANMIYA @ CHANDKHAN SAJJADKHAN has been

CONVICTION PUNISHMENT IMPOSED