CC/3/2004 1/92 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 3 of 2004 With CRIMINAL CONFIRMATION CASE No. 4 of 2004 With CRIMINAL APPEAL No. 567 of 2004 With CRIMINAL APPEAL No. 643 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus JAMAN HAJI MAMAD JAT & 3 - Respondent(s) ========================================================= Appearance : Confirmation Cases Nos.3 and 4 of 2004 MR RC KODEKAR, APP for Appellant-State MR HASHIM QURESHI for for Respondent(s) : 1-4 Criminal Appeals Nos.567 of 2004 and 643 of 2004 CC/3/2004 2/92 JUDGMENT MR HASHIM QURESHI for Appellants(s) : 1 - 4. MR RC KODEKAR, APP for Respondent-State ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE MD SHAH Date : 28/12/2006 COMMON C.A.V. JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.The appellants, original accused No.1-Jaman Haji Mahmad Jat, original accused No.3-Sachu Haji Ibrahim Jat, original accused No.4-Osman Ali Mahmad Jat and original accused No.5- Navaj Ali Jat of Sessions Case No.85 of 1999(original accused Nos.1 to 4 respectively of Sessions Case No.1 of 2002), were tried along with other accused by the learned Addl. Sessions Judge, Fast Track Court, Bhuj-Kutch, for the alleged commission of offences punishable under Sections 120(B), 121, 121(A), 122, 123 and 124(A), 489-A and 34 of the Indian Penal Code, Sections 25(d), 25(1) (AA), 25(1)(B)(C)(F) of Arms Act, Sections CC/3/2004 3/92 JUDGMENT 4(b), 5 and 6 of the Explosive Substances Act, 1908, Section 3 of Criminal Law Amendment Act, Sections 3 and 6 of Indian Passport Rules (Entry Into India), Section 13(2) of Foreigners Act amended Section 14 and Section 6(1-A) of Indian Wireless and Telegraphic Act. 2.The accused Nos.1, 3, 4 and 5 were held guilty by the learned Addl. Sessions Judge and Fast Track Court, Bhuj-Kutch, vide judgment and order dated 25-3-2004 for the offence under Sections 120(B), 121, 121(A), 122, 123 and 124(A) and 34 of the Indian Penal Code, Sections 25(d), 25(1)(AA), 25(1) (B)(C)(F) of Arms Act, Sections 4(b), 5 and 6 of Explosive Substances Act, 1908, Section 3 of Criminal Law Amendment Act, Sections 3 and 6 of Indian Passport Rules (Entry Into India), Section 13(2) of Foreigners Act amended Section 14 and Section 6(1-A) of Indian Wireless and Telegraphic Act. However, they were acquitted for the offence under CC/3/2004 4/92 JUDGMENT Section 489(A) read with Section 34 of the Indian Penal Code. 3.They were sentenced to death and to pay fine of Rs.500/- each, in default to suffer for six months RI for the offence under Sec.121 of IPC. They were also sentenced to suffer for life and fine of Rs.500/-, in default, to suffer RI for six months for the offence under Secs. 120(B) read with Sec.121(A), 122, 124(A) and 34 of the Indian Penal Code; 10 years RI and pay fine of Rs.500/-, in default, to suffer for six months RI for the offence under Sec.123 of the Indian Penal Code; 20 years RI and to pay fine of Rs.1,000/-, in default, to suffer 2 years RI, for the offence under Sections 4(b), 5 and 6 of the Explosive Substances Act, 1908; 5 years RI and to pay fine of Rs.500/-, in default to suffer RI for one month for the offence under Sections 25(D), 25(1)(AA), 25(1)(B)(C)(F) of Indian Arms Act; 2 months and to pay fine of Rs.100/-, in default to CC/3/2004 5/92 JUDGMENT suffer RI for one month for the offence under Sections 3 and 6 of Indian Passport Rules (Entry Into India) and six months RI and to pay fine of Rs.500/-, in default, to suffer RI for six months for the offence under Section 13(2) of Foreigners Act amended Section 14. No separate sentences were awarded for the offence under Section 3 of Criminal Law Amendment Act as well as for the offence under Section 6(1-A) of Indian Wireless and Telegraphic Act. All the sentences were ordered to run concurrently. 4.Being aggrieved by the aforesaid judgment and order of conviction, original accused Nos.1,3, 4 and 5 have filed Criminal Appeals Nos.567 of 2004 and 643 of 2004. 5.The Registry on receiving the record and proceedings of judgment and order of conviction dated 25-3-2004 in Sessions Case No.85 of 1999 from learned Addl. Sessions Judge (Fast Track Court), Bhuj-Kutch, for CC/3/2004 6/92 JUDGMENT confirmation of death of original accused No.1-Jaman Haji Mahmad Jat, original accused No.3-Sachu Haji Ibrahim Jat, original accused No.4-Osman Ali Mahmad Jat and original accused No.5-Navaj Ali Jat as required by Sec.366(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code" for short) has numbered them as Confirmation Cases Nos.3 of 2004 and 4 of 2004. 6.As Confirmation Cases Nos.3 of 2004 and 4 of 2004 as well as Criminal Appeals Nos.567 of 2004 and 643 of 2004 arose from the same judgment and order, these matters which were listed before other coordinate Benches were recently transferred in our Court as per the present roster. We have heard them together and are disposing of the same by this common judgment. 7.Short facts of the prosecution case are as under: 7.1 The Border Security Force ('BSF' for CC/3/2004 7/92 JUDGMENT short) was keeping more vigil and watch in the months of May and June, 1999 in the open border area of Kutch District, Gujarat State, connecting Pakistan border particularly in view of ongoing Kargil War. On 1-6-1999, BSF Khura Checking Party spotted foot prints of 6 persons near Sayara Village 1200 meters away from Guneri Tower outpost. Foot prints showed that intruders were coming from Pakistan border side towards Indian territory and, therefore, BSF Party reported about the illegal infiltration on 1-6-1999 through its Officers to Dayapar Police Station and in turn, PSI, Dayapar Police Station, registered Janvajog Entry No.12 of 1999 at 2310 hours on 1-6-1999 and in pursuance of that Janvajog Entry, police personnel along with panchas went to the place of foot prints and prepared panchnama to that effect. For the purpose of preserving the said foot prints, iron bowls were arranged and same were put up on the above referred foot prints and thereafter, in presence of panchas, moulded foot prints were CC/3/2004 8/92 JUDGMENT taken and ultimately, plastic mouldings of the said foot prints were prepared and same were taken as muddamal after preparing panchnama to that effect. 7.2 Considering the gravity and seriousness of offence, BSF Khura Checking Party started search on the basis of foot prints spotted and they formed two teams. As per the foot prints, they proceeded upto 30 kms. i.e. till Haraminale, abating Indian boarder side and about 3 kms. away from Haraminale they spotted one boatman with boat in Haraminale through telescope. They went near him and he was apprehended and on being asked, he informed his name as Jaman Mahommad Muslim, a Pakistani citizen. He was found with Pakistani currency note of Rs.277/-Pakistani ISI identity card in the name of Sultanshah Kayamshah, one visiting card of Murad Ali, ASI, Pakistan, etc. They prepared report to that effect. First they took him to Guneri Outpost and thereafter to Mudan and report to that effect was sent to their higher Officer as well as to the police CC/3/2004 9/92 JUDGMENT and the above person along with seized muddamal and its memo was handed over to Dayapar Police Station. 7.3 Simultaneously in pursuance of Janvajog Entry No.12 of 1999 of Dayapar Police Station, Kutch Police started operation for nabbing infiltrators. Meanwhile, Dy.S.P., Mr.P.L.Mal, Nakhatrana, Kutch Dist., received a secrete information on 4-6-1999 at about 2300 hours from his personal informant to the effect that Pakistani intruders are hidden in the culvert situated at the bottom of Gandaro/Sura hill and one Abdulla Adam Shaikh, resident of Village Nani Virani, was providing food to them. He was also trying to contact local persons for disbursing the articles brought by the intruders from Pakistan. The said secret information was reduced in writing by Mr.Mal in his own handwriting. He then went to Dayapar Police Station and informed about the same to his superior Officers. He also informed PSI, Dayapar, to call panchas and on CC/3/2004 10/92 JUDGMENT arrival of panchas, primary panchnama was prepared in the Police Station and a raiding party was arranged in which he, his superior Officer and other police personnel were members. Thereafter, Mr.Mal along with other police personnel went towards the direction of information at about 00.30 hours and reached near Gandaro/Sura hill via Dayapar ST Stand, Nani Virani, etc. They left their vehicle there and proceeded towards Gandaro/Sura hill walking a distance of 4 kms. When they reached near the place of information, they covered the area and thereafter apprehended the persons found there. On inquiry, one person stated his name as Sultanshah @ Kayamshah @ Sajimiya Saheb Saiyed, a resident of New Karachi, Pakistan. He had worn Salwar Kamis and white canvas shoes and same were seized after completing necessary formalities. On his personal search, one revolver of Rosi Company loaded with 2 cartridges was seized after completing all legal formalities. From his pocket, a chit of paper was found wherein CC/3/2004 11/92 JUDGMENT Bhojani Travel Private Limited, Karachi, Pakistan, was written with telephone numbers in English, Gujarati and Urdu languages and same was also seized. Thereafter, another person was found and on inquiry, he stated his name as Sachu Haji Ibrahim Jat, a resident of K.T. Bandar, Pakistan. He had also worn kurta and pyjama and white canvas shoes and same were seized after necessary formalities. On his personal search, one revolver of Rosi Company with magazine loaded with 6 cartridges was seized after completing all legal formalities. Third person on inquiry stated his name as Osman Alimamad Jat, resident of K.T. Bandar, Pakistan. He had worn kurta and pyjama and white canvas shoes and same were also seized after necessary formalities. On his personal search, one revolver of Rosi Company with magazine loaded with 6 cartridges were found and on the butt of revolver which was made in China, star was shown. Same were also seized after completing all legal formalities. Next person on inquiry stated his CC/3/2004 12/92 JUDGMENT name as Navaz Ali Jat, a resident of K.T. Bandar, Pakistan. He had worn white canvas shoes and same was seized after completing necessary formalities. On his personal search, nothing was found. Next person on inquiry stated his name as Farid Munavar Bhatti, resident of Karachi, Pakistan. He had worn plastic sandal. Nothing was found from this person also. 7.4 Upon completion of all formalities of preparing panchnamas and seizing muddamals, the raiding party including panchas and accused along with the above referred muddamals reached Dayapar Police Station on 5- 6-1996 at 5.00 a.m. They started interrogation of Sultanshah @ Kayamshah @ Sajimiya Saheb Saiyed. As he showed willingness to show arms and ammunition and other highly explosive items which they brought and hid with them, he again informed PSI, Dayapar Police Station to call panchas. PSI, Dayapar Police Station, called 2 panchas and primary panchnama to that CC/3/2004 13/92 JUDGMENT effect was prepared there itself. Thereafter, he along with other police personnel, panchas and also with Sultanshah @ Kayamshah @ Sajimiya started in a Government vehicle in which Sultanshah @ Kayamshah sat in front seat and jeep was driven by the driver as per the instruction given by Sultanshah @ Kayamshah and they reached Nani Virani, Dhaduli and Siyut hill. At that time, Sultanshah @ Kayamshah instructed driver of the jeep to stop the vehicle. Sultanshah @ Kayamshah then led the panchas and police personnel towards west direction upto 2 km. and he took all panchas and police personnel very near to a place which burst out due to digging limestones where water logging was there. Thereafter, he led all the personnel towards the area wherein he stopped himself very near a cactus plant. He removed the sand and took out the packets covered in plastic. It was 30 in number out of which, one packet was opened in presence of all concerned persons including Sultanshah @ Kayamshah and they found two CC/3/2004 14/92 JUDGMENT pistols and two spare magazines. Simultaneously, in another packet, they found 2 revolvers. When they opened one packet in rectangular shape, they found wireless set and other material which were packed in thermocol and it was five in number in which they found pencil timer. Thereafter, in one packet they found white colour as well as black colour wires and 15 detonators. One end of detonator was connected with wire of different colour. In one plastic bag, they found one brown tin and on opening the same, they found 5 switches red in colour and one remote control and in another 2 tins, they found small detonators. In one heavy plastic bag, they found cartridges of different sizes which can be used in revolver and pistol. As it was impossible to prepare detailed panchnama on the spot, with the consent of the panchas and other persons, those muddamals and other muddamals packets 12 in number were seized. Prior to that, one was opened in presence of panchas wherein they found 4 packets and on CC/3/2004 15/92 JUDGMENT opening one of them, they found black substance and primary opinion was of RDX and all were packed in 2 plastic bags and on them, they applied seal of LCB, Bhuj, and also put the slip signed by panchas and Police personnel. Thereafter, they came back to Dayapar Police Station and for the purpose of preparing detailed panchnama, they again arranged for panchas and started to prepare detailed panchnama. In one of the 2 bags, they found 30 packets and when one packet marked with A and B was opened, they found 54 pistols and 6 revolvers. Out of those 54 pistols, 20 pistols were made in China by Moring Gokal 30 Company which was mentioned in English language and 17 pistols were made in China by Moring Kokal 30, the number mentioned in those pistols was in English and 2 revolvers of Rosi Company was made in Brazil. Each of the pistols was having one spare magazine and it has been again seized as muddamal after applying the seal of LCB, Bhuj and panch slip. On opening 12 packets in square shape, every CC/3/2004 16/92 JUDGMENT packet was found to have 4 sub-packets and all those packets contained black substance and primarily which was opined to be RDX. On opening afore referred 12 big packets, total 48 packets were found weighing 2 kg. In short, as per the panchnama, 24 kg. RDX were found from their possession along with above referred arms, ammunition and explosive substances. Same were seized after completing all legal formalities. Thereafter, on opening the rectangular bags, they found wireless set made in Japan. On opening 5 thermocol packets, each packet was containing 2 timer pencils, 15 detonators with wire and 15 detonators without wire. In another packet, they found white cordex wire of 30.5 feet and another black colour wire of 45 feet which was a safety fuse. They also found one tin containing remote control stitched in red colour plastic bags and on opening the plastic bags, different cartridges numbering 572 were found and detailed panchnamas to that effect was prepared. CC/3/2004 17/92 JUDGMENT 7.5 As Kargil War was going on in full swing and during that period since huge quantity of arms, ammunitions and explosive substances were recovered at the instance of Pakistani nationals who entered into Indian Territory, further investigations were required more particularly by various agencies of Central as well as State for reaching the roots of the conspiracy and, therefore, Civil Authority and District Superintendent of Police, Bhuj-Kutch, passed a restriction order on 6-6-1999 under Sec.11 of the Foreigners Order, 1948 by Government of Gujarat Notification No.RCF- 1160(II) dated 2-12-1960 to keep the above referred persons in a Joint Interrogation Centre for 14 days for interrogation by all the agencies namely, RAW, IB, CBI, CID, State CID Crime, State Customs Authority and other agencies (from pages 3819 to 3824, Vol.VII, Exs.269 to 273). 7.6 Meanwhile, Captain Sachin of 45 Air Defence Regiment, Kutch Camp at Desalpur CC/3/2004 18/92 JUDGMENT (Guntali), Taluka Nakhatrana, received a secret information about a terrorist being found near Desalpur Division. He in turn informed about it to an Officer of Intelligence Branch of his company i.e. Sanjay Sharma, who, in turn, informed it to Mani Kundan and others. As immediate action was necessary to be taken, Intelligence Branch sought the help of Army and, therefore, Sachipuri was directed along with six persons to go in command post along with weapons and, therefore, they went to the above referred place. After reaching the place of location, they were divided into three groups and after identifying him as the person about whom they received the information, they lied down and by crawling reached near him and he was ordered to put his hands up. The person stood up and tried to run away. Since he started to run towards the Battalion where arms and ammunitions were kept, order of firing was given to restrain him from causing damage to weapons. Due to firing, said person fell down CC/3/2004 19/92 JUDGMENT on land. On his personal search, his identity card, cash amount of Rs.16,000/-, one pistol marked with star and one wrist watch were found. As he was alive, he was lifted and taken near the jeep. At that time, the person who was helping in carrying him i.e. Sivadasan had carbon machine gun which was loaded at that time and when hand of injured person touched upon his sticker, firing took place and Army person Reddy received injury on his leg. Thereafter, Reddy and the injured were taken in a jeep. In the meanwhile, as the injured was dead, he was taken to Nakhatrana Police Station and handed over there and Army person Reddy was taken to Military Hospital at Bhuj for treatment. Name of the above referred person whom army personnel fired and later on died was Hussain Suleman Sota and Janvajog Entry No.54 of 1999 was registered on the same day i.e. on 7-6-1999. Arrangements were made by the police for inquest and the post mortem of the dead body of said Hussain. CC/3/2004 20/92 JUDGMENT 7.7 Meanwhile, various Central as well as State agencies started investigations into the matter regarding the intruders who have been kept in the Joint Interrogation Centre from whom above referred serious arms, ammunitions and explosive substances were recovered. The agencies started investigation towards persons of Indian origin also. On 14-6-1999, Dy.S.P., Mr.P.L.Mal, Nakhatrana, District Kutch, filed complaint against the aforesaid six accused as well as against others on behalf of the State and it has been registered as Dayapar Police Station I.C.R.No.12 of 1999 naming 16 persons and others as the accused. After making endorsement to that effect, investigation was started. During the course of investigation, they recorded statements of various witnesses and also investigated towards the local people i.e. Indian nationals staying very near to the border whose names were disclosed during investigation with their act and, therefore, some of them were arrested also and statements of various witnesses were recorded. Raid was CC/3/2004 21/92 JUDGMENT carried out at the house of one Abdulla Adam Shaikh after drawing panchnama to that effect. Even statements of STD booth holder and the person with whose help others have travelled were recorded. Arrangements were also made for sending the muddamal to FSL for analysis and the muddamal weapons for opinion of Ballistic Expert. Simultaneously, moulded foot prints along with shoes etc. were also sent along with forwarding letter to FSL. On receipt of FSL opinion, same was kept in investigation file. 7.8 Meanwhile, Customs Authorities also started investigation on their own and recorded statements of various witnesses including the accused under Sec.108 of the Customs Act and they have been kept as part of charge sheet. Highly explosive muddamal RDX was disposed of as per order passed by the Court and ultimately, charge-sheet and supplementary charge sheet were filed into the Court. CC/3/2004 22/92 JUDGMENT 7.9 As per the direction given by the High Court, common evidence was recorded in Sessions Case No.1 of 2002 and for that, all the connected sessions cases were transferred into the Jail Court. The accused appeared there and charge was also framed against the accused. They pleaded not guilty and prayed for trial. 7.10 To prove the guilt of the accused, prosecution examined in all following 41 witnesses: i.P.W.1, Shankardan Chendan Gadhvi, Ex.104, the panch witness of panchnama of taking moulding sample of foot prints and also moulding of the plaster of parish on foot prints. He supported the case of the prosecution. ii.P.W.2, Hamirji Pragji, Ex.106, the panch witness of panchnama of spotting foot prints near Sayra Village. He supported the case of CC/3/2004 23/92 JUDGMENT the prosecution. iii.P.W.3, Jayesh Rameshchandra Khatri, Ex.111, the panch witness of sealing the whole muddamal at Bhuj. He supported the case of the prosecution. iv.P.W.4, Premjibhai Naranbhai, Ex.115, the panch witness of discovery of Rs.8400/- from the house of Abdulla Adam. He supported the case of the prosecution. v.P.W.5, Rajesh Tulsidas Thakker, Ex.121, the panch witness of inquest panchnama on the dead body of Hussain Sota. He supported the case of the prosecution. vi.P.W.6, Vishal Vijaybhai Dave, Ex.123, the panch witness of recovery of scooter belonging to Narangar. He supported the case of the prosecution. vii.P.W.7, Musabhai Hussain Kumbhar, Ex.125, the panch witness of panchnama of seizure of clothes of deceased Hussain. He supported the case of the prosecution. viii.P.W.8, Musha Abhala, Ex.128, the panch witness of panchnama of seizure of pistol CC/3/2004 24/92 JUDGMENT etc. from the deceased. He has been declared as hostile. ix.P.W.9, Jusabh Haji Hasam, Ex.130, the second panch witness of panchnama of place of encounter of the deceased. He has also been declared as hostile. x.P.W.10, Arvind Shankarlal Thakkar, Ex.131, the panch witness of panchnama of place of encounter of the deceased. He has been declared as hostile. xi.P.W.11, Daud Jusabhabhai Sodha, Ex.135, the second panch witness. xii.P.W.12, Purshottam Lalji, Ex.136, the panch witness of nabbing 5 Pakistani nationals with arms. He supported the case of the prosecution. xiii.P.W.13, Girishbhai J.Gaur, Ex.140, the panch witness of panchnama of production of articles discovered from the deceased. He supported the case of the prosecution. xiv.P.W.14, Dayaram Nathubhai Patel, Ex.142, the panch witness of panchnama of muddamal discovered from Siyot hill. He supported the CC/3/2004 25/92 JUDGMENT case of the prosecution. xv.P.W.15, Dr.Ramesh Ravjibhai Buchiya, Ex.150, the doctor who conducted post mortem on the body of deceased Hussain. He supported the case of the prosecution. xvi.P.W.16, Navalsinh Batuksinh Jadeja, Ex.158, the panch witness of panchnama of disposal of RDX. He supported the case of the prosecution. xvii.P.W.17, Vikramsinh Chandrasinh Chudasama, Ex.160, the panch witness of sending muddamal to FSL. He supported the case of the prosecution. xviii.P.W.18, Samsersinh Divansinh, Ex.165, the witness from BSF. He was member of raiding party of Rajaram Company and identified the report of Khura Checking Party. He supported the case of the prosecution. xix.P.W.19, Manikanthan Krishnan Nair, Ex.172, the witness from the Army and a member of party in apprehending Hussain Sota and wherein Hussain Sota was shot dead. He CC/3/2004 26/92 JUDGMENT supported the case of the prosecution. xx.P.W.20, Pravinsinh L.Mal, Dy.S.P., Ex.173, the complainant in this case, who received secret information produced at Ex.410. He has taken active part all throughout from beginning till end and also remained as one of the members of raiding party. He supported the case of the prosecution. xxi.P.W.21, Ashokkumar