ADAMBHAI SULEMANBHAI AJMERI & Ors. v. STATE OF GUJARAT

6.2. Considering the seriousness of this case and the gravity of the offences, it was the duty of the handwriting expert to seek opinion of other experts which he claimed to have done. PW-89 stated that he requested the Director of FSL to seek the service of the Central Government Laboratory, and the photocopies of the documents were C sent to the Government Examiner of Questioned Documents('GEQD'), Ministry of Home Affairs, Hyderabad for the preliminary examination. Accordingly, Assistant Government Examiner, the senior most GEQD of the Central Government had arrived at the FSL of Gujarat. It D was further stated by PW-89 that the officers from Hyderabad had worked independently and prepared their opinion. Accordingly, PW-89 formed a final opinion based upon the opinion of the aforesaid officers. The senior most officer, Mr. R.K Jain, sent certificate via fax in which E he had stated that he was in consent with the opinion of PW-89. However, objection was raised by the counsel for the accused persons at the Special Court (POTA) for taking this certificate on record, since this document of certificate was never given to the defence in the F chargesheet papers, or at any time thereafter. Moreover, the prosecution had also submitted that even they were unaware of the existence of this document, and this knowledge had come before them only during the course of recording of the deposition of PW-89 before the G Special Court (POT A). Therefore, the certificate was taken on record with the objection of the defence. [Para 106] [215-C-H]

6.3. The prosecution contended that the Urdu letters were written by A-4 by only placing reliance upon the H opinion of the handwriting expert, PW-89. However, the ADAMBHAI SULEMANBHAI AJMERI v. STATE OF GUJARAT 71 certificate of the senior most official of FSL, Hyderabad A was oot admitted on record till a much later stage, after the charge sheet was prepared and PW-89 gave his statement before the court. It was at this stage that his evidence was admitted with protest from the defence. PW-89 in his evidence had stated that he has basic B knowledge of Urdu and cannot differentiate between Urdu, Arabic and Persian. He further stated that the opinion of handwriting experts is not conclusive. Therefore, the prosecution had failed to establish beyond reasonable doubt that the Urdu letters (Ex.658) were c written by A-4. [Para 107] [207-A-D] 7 .1. It is clear from the deposition of PW-123, Police Inspector that firstly, A-6 is not the owner of the car since it was registered in the name of some other person as per the report of R.T.O. Secondly, as per the Order of the CJM D of Budgam, Jammu and Kashmir, A-6 was not in physical possession of the car which was allegedly used for carrying weapons for the attack on Akshardham whereas he was actually found in possession of another car . bearing Registration no. CHOIX-3486. Finally, though a E panchnama was drawn up of the sezure of the alleged car, by the police of Jammu and Kashmir, it was for them to hand over the car from their custody to the Gujarat police. No panchnama or document of seizure of the car had been produced to show that the car was recovered F from the workshop/ garage of A-6 or even that the garage/ workshop from which the car was allegedly recovered belongs to A-6. Therefore, the car cannot be linked to A- 6 in the absence pf any independent evidence other than. his confessional statement which had been G subsequently retracted. [Para 110) [218-F-H; 219-A-B]

7.2. The statement of PW-125, Inspector, Crime Branch, Ahmadabad is mentioned regarding the seizure of the car since it is reflective of how casually and with H ! 72 SUPREME COURT REPORTS [2014} 7 S.C.R. A what impunity the investigation has been conducted in the instant case by the investigating officer. PW-125, who was a part of the investigation of this case in Kashmir and who was also responsible for escorting A-2, A-4 and A-5 to Srinagar , Kashmir. It is clear from the statement of PW- B 125 that neither the panchnama nor seizure memo of the car no. KMT 413, made during its alleged seizure in case no. 130 of 2003 was seen by PW-125 since, he was engaged in other work. However, without verifying the contents of the panchnama and the seizure memo of the c car in Case No.130 of 2003, the involvement of the car had been admitted in evidence on record by the courts below, merely on the basis of the subsequent panchnama drawn by the Gujarat police, which was only for the transfer of possession of the car from the police of Jammu and Kashmir to the Gujarat police. [Para 111) [219-C-D; 220-C-E] 0

7.3. In light of the evidence, no weightage can be given to the panchnama drawn by the Gujarat police at Jammu and Kashmir for the seizure of car already in the E possession of the Jammu and Kashmir police at SOG Camp, in the absence of the original panchnama and seizure memo drawn by the police of Jammu and Kashmir. The prosecution had failed to prove that the car was used by A-6 to carry weapons from Jammu and F Kashmir to Bareilly for carrying out the attack on Akshardham. [Para 111) [220-F-G]

8.1. The rule of prudence as applying to confessions of the accused under the general law, being that the confessional statements which were retracted must be G corroborated by independent evidence, must be followed to convict the accused for the charges framed against them. [Para 116) [235-H; 236-A]

8.2. In the instant case, there is nothing on record H other than the statements of the accomplices (of which ADAMBHAI SULEMANBHAI AJMERI v. STATE OF GUJARAT 73 retracted from his confession) and the A PW· 51 confessional statements of the accused persons which were retracted and this aspect of the matter was required to be considered by the courts below while recording the findings on the charges framed against the accused persons. The retraction of the confessional statements of B the accused persons A-2, A-3, A-4 and A-6 and that of PW· 51 revealed that they were tortured by the police to extract their confessional statements. Therefore, the confessional statements of A-2, A-3, A-4 and A-6 cannot be relied upon for this reason also i.e they have been c retracted. [Para 115] [224-G-H; 225-A-B] ·

8.3. The findings and reasons for conviction and sentencing of the accused persons were confessional statements of A-2, A-3, A-4 and A-6 and the two Urdu letters which are purportedly written by A-4. A- D 2, A-3, A-4 and A-6 had retracted their confessional statements as per the exhibits and all of them had alleged that they were tortured and threatened with dire consequences of death through 'encounter' and death of their loved ones. All the accused persons speak of E torture by beating, especially on the legs and this corresponds to their complaints of pain 'under the feet'. [Para 116] [236-B·C] F

8.4. The statements of confession of the accused persons cannot be relied upon if they are retracted, unless corroborated by independent evidence. In the instant case, the case of the prosecution rests on the confessional statements of the accused persons, the confessional statements of the accomplices and their evidence and the two Urdu letters purportedly found in G the pockets of the trousers of the fidayeens and written by A-4, and apart from this, it is very clear that there is absolutely no independent evidence to implicate the accused persons for the crime. The evidence of the H 74 SUPREME COURT REPORTS [2014] 7 S.C.R. A accomplices, PW-50, PW-51 and PW-52 are also rejected. Therefore, there is no independent evidence on record which corroborates the confession of the accused persons which were subsequently retracted. Further, a retracted confessional statement of an accused person B cannot be used to corroborate the retracted confessional statement of a co-accused. Thus, the confessional statements of the accused persons cannot be relied upon and the case of the prosecution fails. There is no independent evidence on record to prove the guilt of the c accused persons beyond reasonable doubt in the face of the retractions and grave allegations of torture and violation of human rights of the accused persons against the police. [Para 120, 121] [231-8-E; 238-D-E] Hari Charan Kurmi and Jogia Hajam v. State of Bihar D AIR 1964 SC 1184: 1964 SCR 623; NCT vs. Navjot Sandhu (2005) 11 SCC 600: 2005 (2) Suppl.SCR 79; Parmanada Pegu vs. State of Assam (2004) 7 SCC 779: 2004 (4)'~uppl. SCR 1; Subramania Goundan vs. State of Madras AIR f958 SC 66: 1958 SCR 428; Aloke Nath Dutta & Ors. vs. State of E West Bengal (2007) 12 SCC 230: 2006 (10) Suppl.SCR 662 - referred to. F

9.1. In the instant case, the prosecution relied upon the information contained in the confessional statements of the accused persons in order to set up the plea that the offence of criminal conspiracy had been committed by each one of them. A careful examination of this information would reveal that this claim of the prosecution does not hold water. [Para 124] [242-E] G

9.2. To punish an accused under section 120-8 of the IPC, it is essential to establish that there was some common object to be achieved and that there was an agreement by the accused persons to achieve that object i.e there was a 'meeting of minds'. In the instant case, it H cannot be said that the conspiracy was hatched by the ADAMBHAI SULEMANBHAI AJMERI v. STATE OF GUJARAT 75 accused persons in furtherance of some common object. A The common object, according to the prosecution case was to take revenge for the Godhra Riots of 2002. But this object was vague, and was not very specific and the charge of criminal conspiracy against the accused persons cannot be proved on its basi9'. Further, even the B confessional statements of the accused persons did not help the prosecution to establish the chain of events in pursuance of the alleged conspiracy. In fact, they are highly contradictory and improbable in nature. [Para 125] [242-F-H; 243-A·B] C

9.3. According to the prosecution, as disclosed in the confessional statements of A-1, A-2, A-3, A-4 and A-6, the conspiracy was hatched in Saudi Arabia, and money was delivered to India through havala; the two fidayeens were apparently escorted to Ahmedabad by one Aiyub Khan D and they also brought the arms and ammunition with them. It was stated that A-2 then took the fidayeens in his auto rickshaw and helped them reach places in Ahmedabad and Gandhinagar,' and finally helped them in choosing the I Akshardham temple at Gandhinagar as a suitable place to E carry out the attack and hence take the revenge against Hindus for the Godhra riots. According to the prosecution, A-2 also stated that the accommodation of the fidayeens was set up at Bavahir Hall. Per contra, as per the confessional statement of A-6, he was the one who F brought the two fidayeens from Kashmir, and drove the car with ammunitions from Kashmir to Bareilly, and then came to Ahmedabad in a train, and carried the ammunitions in bedding. A-6, according to the prosecution, was also the one who reached Gandhinagar G and Ahmedabad with the two fidayeens, before finally settling on Akshardham as the site of the attack. A-6 also stated,. according to the prosecution, that the fidayeens stayed at the Gulshan Guest House. Interestingly though, neither A~2 nor A-6 speak of each other or each other's role H . . 76 SUPREME COURT REPORTS [2014] 7 S.C.R. A in the planning and conspiracy, even though they were both seemingly doing the same task, i.e, of arranging for the accommodation of the fidayeens, and making them reach the cities of Gandhinagar and Ahmedabad and how there could be two versions of the same event. [Para 126] B [243-C-H]

9.4. It is true that in order to establish criminal conspiracy, it is not required of every co-conspirator to know the entire sequence of the chain and events, and C that they can still be said to be conspirators even if they are only aware of their limited roles and are not able to identify the role of any other conspirator. But it is not the case here that the knowledge of the conspirators is limited to their role. Each accused claims to have complete knowledge of the conspiracy, while D contradicting the other's version of the same events to constitute the act of criminal conspiracy. Therefore, the confessional statements of the accused persons and the accomplices do not complement each other to form a chain of events leading to the offence. Rather, the E depositions of the prosecution witnesses were contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them. Also, none of the F events of the alleged criminal conspiracy was supported by independent evidence that inspires confidence to uphold the conviction and sentences meted out to the accused persons. Thus, the prosecution failed to prove beyond reasonable doubt, the guilt against the accused G persons, for the offence of criminal conspiracy under Section 120-B of the IPC. [Para 127, 128) [244-A-F]