State of Maharashtra Through CBI Vs. Ahmad Shah Khan @ Salim Durani
EmailAppeal: Criminal Appeal No. 1030 of 2012
Petitioner: State of Maharashtra Through CBI
Respondent: Ahmad Shah Khan @ Salim Durani
Apeal: Criminal Appeal No. 1030 of 2012
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 15, 3(3), 5, 6 – Terrorist and Disruptive Activities (Prevention) Rules, 1987, Rule 15 – Confessional statements of Appellants A20, A21 – Discarding of – Statements recorded by police officials failing to inform the accused about repercussions of making it and that they were not under compulsion to make it – Certificate as required not attached to the statements. Held no merit in appeal by State. Even otherwise, respondents have served four years of sentence and paid fine.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 15, 3(3), 5, 6 – Terrorist and Disruptive Activities (Prevention) Rules, 1987, Rule 15 – Confessional statements of Appellants A20, A21 – Discarding of – Statements recorded by police officials failing to inform the accused about repercussions of making it and that they were not under compulsion to make it – Certificate as required not attached to the statements. Held no merit in appeal by State. Even otherwise, respondents have served four years of sentence and paid fine.
Order of acquittal – Interference – When justified. Held Appellate Court should generally not interfere when two views are possible. Only when order is perverse or admissible evidence is not taken into consideration, Court must consider the entire evidence to reach a conclusion whether judgement of acquittal is perverse or not.
Held:
The appeal lacks merit and is liable to be dismissed. More so, the respondents (A-20 and A-21) have filed appeals, as referred to hereinabove, and they have served 4 years of sentence and deposited the fine. (Para 48)
The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. (Para 47)
JUDGEMENT:
41. This appeal has been preferred against the judgments and orders dated 11.10.2006 and 31.5.2007, passed by the Special Judge of Designated Court under the TADA, in the Bombay Blast Case No.1 of 1993, by which the respondents (A-20 and A-21) had been convicted under Section 3(3) TADA, and acquitted of the main charge of conspiracy.
42. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of general conspiracy, the respondents were additionally charged under Section 3(3) TADA for facilitating the commission of terrorist activities etc., as they had agreed to send persons for receiving training in arms, ammunition and explosives and making arrangements by harbouring and concealing their conspirators/terrorists for consideration of money from Tiger Memon (AA). They had further been charged with receiving and keeping in possession of one AK-56 rifle and two empty magazines with intention to use and commit terrorist acts. Further, under Section 5 TADA, for possessing the said AK-56 rifle; under Section 6 of TADA, in respect of the same AK-56 rifle; and lastly, for harbouring and concealing co-accused Javed Chikna, Yakoob Yeda and others terrorists/co-conspirators at Tonk, Rajasthan after the Bombay blast on 12th March, 1993.
B. Both the respondents (A-20 and A-21) had been found guilty for the offence punishable under Section 5 TADA, and awarded the punishment of five years, and ordered to pay a fine of Rs.25,000/- and, in default of payment of fine, to suffer further R.I. for six months. But acquitted for the charge of conspiracy.
Hence, this appeal.
43. Shri Mukul Gupta, learned senior counsel appearing for the appellant, has submitted that in spite of the ample evidence against the said respondents (A-20 and A-21) in view of their involvement in conspiracy, the court below committed the grave error in discarding the same. The evidence requires total re-appreciation and the confessional statements of the respondents (A-20 and A- 21) and other co-accused have to be taken into consideration. Therefore, the appeal deserves to be allowed.
44. On the other hand, Shri Mushtaq Ahmad, learned counsel appearing for the respondents (A-20 and A-21), has submitted that their confessional statements have rightly been discarded as the same had been recorded in utter disregard to the statutory provisions. The appeal lacks merit and is liable to be dismissed.
45. We have considered rival submissions made by the counsel for the parties and perused the records.
46. The confessional statements of Ahmad Shah Khan @ Salim Durani (A-20), Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied upon by the prosecution. The same stood discarded completely by the learned Special Judge on the ground that all the confessional statements had been recorded by the Police officer in utter disregard to the mandatory provisions of Section 15 TADA and Rule 15 of TADA Rules, 1987. The police officer failed to inform the said accused persons while recording their respective statements that they were not bound to make confessional statement and further failed to warn that, in case, they made statements, the same would be used as evidence against them. More so, the required certificate was not attached to the said statements.
47. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
48. In view of the fact that no legal evidence which could be relied upon by the prosecution is available on record, we do not find any fault with the impugned judgment and order. The appeal lacks merit and is liable to be dismissed. More so, the respondents (A-20 and A-21) have filed appeals, as referred to hereinabove, and they have served 4 years of sentence and deposited the fine.
48.1 The appeal stands dismissed.
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42. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of general conspiracy, the respondents were additionally charged under Section 3(3) TADA for facilitating the commission of terrorist activities etc., as they had agreed to send persons for receiving training in arms, ammunition and explosives and making arrangements by harbouring and concealing their conspirators/terrorists for consideration of money from Tiger Memon (AA). They had further been charged with receiving and keeping in possession of one AK-56 rifle and two empty magazines with intention to use and commit terrorist acts. Further, under Section 5 TADA, for possessing the said AK-56 rifle; under Section 6 of TADA, in respect of the same AK-56 rifle; and lastly, for harbouring and concealing co-accused Javed Chikna, Yakoob Yeda and others terrorists/co-conspirators at Tonk, Rajasthan after the Bombay blast on 12th March, 1993.
B. Both the respondents (A-20 and A-21) had been found guilty for the offence punishable under Section 5 TADA, and awarded the punishment of five years, and ordered to pay a fine of Rs.25,000/- and, in default of payment of fine, to suffer further R.I. for six months. But acquitted for the charge of conspiracy.
Hence, this appeal.
43. Shri Mukul Gupta, learned senior counsel appearing for the appellant, has submitted that in spite of the ample evidence against the said respondents (A-20 and A-21) in view of their involvement in conspiracy, the court below committed the grave error in discarding the same. The evidence requires total re-appreciation and the confessional statements of the respondents (A-20 and A- 21) and other co-accused have to be taken into consideration. Therefore, the appeal deserves to be allowed.
44. On the other hand, Shri Mushtaq Ahmad, learned counsel appearing for the respondents (A-20 and A-21), has submitted that their confessional statements have rightly been discarded as the same had been recorded in utter disregard to the statutory provisions. The appeal lacks merit and is liable to be dismissed.
45. We have considered rival submissions made by the counsel for the parties and perused the records.
46. The confessional statements of Ahmad Shah Khan @ Salim Durani (A-20), Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied upon by the prosecution. The same stood discarded completely by the learned Special Judge on the ground that all the confessional statements had been recorded by the Police officer in utter disregard to the mandatory provisions of Section 15 TADA and Rule 15 of TADA Rules, 1987. The police officer failed to inform the said accused persons while recording their respective statements that they were not bound to make confessional statement and further failed to warn that, in case, they made statements, the same would be used as evidence against them. More so, the required certificate was not attached to the said statements.
47. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
48. In view of the fact that no legal evidence which could be relied upon by the prosecution is available on record, we do not find any fault with the impugned judgment and order. The appeal lacks merit and is liable to be dismissed. More so, the respondents (A-20 and A-21) have filed appeals, as referred to hereinabove, and they have served 4 years of sentence and deposited the fine.
48.1 The appeal stands dismissed.
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