Case: Ayuub Vs. State Of U.P

The recorded confession must indicate that these safeguards have been fully complied with. In this case, the recorded confession statements do not show that the officer who recorded the statement had followed those guidelines. Therefore, it is inadmissible in evidence. 19. According to the prosecution, these two appellants hurled bombs at the police picket and they were identified by eyewitnesses, namely PW2 Desh Raj Singh, PW 3 Sarvesh Singh and PW1 Platoon Commander Ramvir Singh. PW1 Platoon Commander Ramvir Singh deposed that two boys came running and threw bombs one after another and that he could see them in the electric light. At the relevant time, he was standing outside the tent and the appellant were seen at a distance of ten to fifteen paces away. He also deposed that the noticed these appellants while may were coming towards them. Constable Desh Raj Singh, PW-2 also deposed that while he was standing outside the tent he saw the appellants coming and throwing bombs at them. The counsel for the appellants contended that there was no source of light available for these witnesses to see the appellants and as the incident happened at about 7.45 P.M., the assailants might not have been identified by the witnesses. The counsel also argued that no reference was made regarding the source of light in the First Information Report. But, it is important to note that in the site plan prepared later, an electric pole is shown very near to the place of incident and when as many as three of the witnesses deposed that they had identified the assailant in the electric light, we do not find any justified reason to reject their evidence. 20. The counsel for the appellants further contended that the test identification parade was conducted belatedly and no evidentiary value could be attached to it. It was submitted that in the case of appellant-Abdul Jabbar, the test identification parade was done 43 days after his arrest and in the case of appellant Ayyub the same was done 10 days after he surrendered in the court. 21. The test identification parade as such is not a substantive place of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. In the instant case, the test identification parade was held under the supervision of a Judicial Magistrate, but as he passed away subsequently, he could not be examined. PW-6, K.P. Agarwal and PW-34, B.B. Chaturvedi were examined to prove that the identification parade was conducted in a fair manner. Both these PWs deposed in detail regarding the various steps taken by them to see that the identification parade was done properly and their evidence shows that all necessary precautions were taken by them. We do not find any apparent defect in the test identification conducted by the prosecution. 22. There are various other pieces of circumstances evidence to prove the complicity of these appellants. Appellants Abdul Jabbar was arrested on 28.1.1993 pursuant to an information that he was undergoing treatment in the house of the Ameer Hamza. He was taken to custody immediately and subjected to medical examination by PW 20, Dr. R.P. Mishra. This appellant had 7 injuries on his body. Injury nos. 5 & 6 were scabbed burn injuries, and in all probability, these injuries must have been caused due to handling of some explosive substance. Appellant Abdul Jabbar was produced before PW-10, Shri R.C. Chaturvedi, the then Designated Judge, 29.1.1993 itself. The learned Judge recorded his observations and also the statement made by appellant Abdul Jabbar at that time. The statement was marked as Ex. Ka-11. In support of this document, PW-10 gave evidence in court. In Ex. Ka-11, the appellant made confession of his guilt and he also made statement to the effect that a fellow named, Saleem, forced him to indulge in the bomb-throwing on 26.1.1993 evening and he also stated about his accomplice. PW-10 deposed that when appellant, Abdul Jabbar was produced before him he had injuries on his body and that he had noted this in Ex. Ka-11. Appellant Abdul Jabbar when question under Section 313 Cr. P.C., could not give justifiable explanation for the injuries found on his body. This is a clear incriminating circumstances to prove the guilt of appellant Abudl Jabbar. 23. In this case, PW-4 conducted the post-mortem examination on the body of deceased N.K. Mahender Prasad Sharma and he found 13 ante-mortem injuries. Most of the injuries were lacerated injuries and PW-4, the doctor, deposed that the abrasions on the body of the deceased could have been caused by splinters as a result of bomb explosion. 24. Learned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained. 25.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not find any merit in the reasons given by the Designated Judge. There are stringent provisions in the TADA Act and in the Government Order, it is stated that the Government after proper discussion on the facts of the case and the evidence/reports/letters available on the record decided to waive the TADA Sections in the recorded in the enclosed list. When the Order itself states that all records were perused and considered, we do not think that the learned Designated Judge was justified in rejecting the application. It cannot be said that the Senior Prosecuting Officer had filed the application without consideration of the relevant facts. It cannot also be said that application was filed with any mala fide intention to save some of the culprits from the clutches of law. The request was made by made only to withdraw from prosecution as against the offences punishable under the TADA Act. Charges in respect of other offences punishable under Indian Penal Code remained and the accused had to face trial for that. Government must have thought that the stringent and harsh provisions of TADA Act were not necessary to deal with such situationsWe are of the view that the learned Designed Judge should have accepted the application for withdrawal from prosecution as against the offences charged against the appellants under the TADA Act. Therefore, we allow that application and the appellants shall stand acquitted under Section 321 (b) of Cr. P.C. of all the charges framed against them under the TADA ActThe charge of murder and other allied offences against these appellants is held to have been proved by the prosecution from the evidence of the eyewitnesses, the circumstances evidence and the confession made the these appellants under Section 15 of the TADA ActLearned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained.