Ahmed Hussein Vali Mohammed Saiyed ... vs State Of Gujarat

2) The brief facts leading to the filing of the present appeals are as follows:

sheet, necessary charges were framed by the Trial Court. On 21.12.1992, after conducting the trial in which 62 witnesses were examined by the prosecution and 139 documents were exhibited including the confessional statements of various accused, the Designated Judge convicted the accused under various sections of the I.P.C., Arms Act and TADA Act. In addition to the sentence, the Designated Judge also directed the accused persons to pay fine separately. All the sentences were ordered to run concurrently. Aggrieved by the conviction and sentence imposed by the Designated Judge, Ahmedabad, 3 the appellants filed the above appeals before this Court.

7) According to the prosecution, the incident took place on 03.08.1992 at about 7.45 p.m. at the Radhika Gymkhana situated in the Odhav Area, Ahmedabad which has been declared as a notified area in terms of Section 2(f) of the TADA Act. To show that the said area has been declared as a notified area in terms of TADA Act, the prosecution has placed Exh. 572 and examined their Investigating Officer-PW-59. All the accused along with absconding accused hatched the conspiracy to eliminate the rival gang under the leadership of Hansraj Trivedi. There was long standing enmity between the two gangs in the sale of liquor. Because of this gang rivalry of 6 Hansraj with Abdul Latif and the members of his gang, the enmity developed between two of them and in furtherance of conspiracy hatched initially, in the afternoon of 03.08.1992, Abdul Latif's gang went to the office of Hansraj but Hansraj was not available there, therefore, the members of Abdul Latif's gang returned to Madh's Mohalla, Dariapur. Thereafter, again in the evening, Abdul Latif received an information that Hansraj and other members are playing game of cards in Radhika Gymkhana at around 8 `O' Clock and on the strength of the said information, the plan was chalked out to launch an assault on Hansraj Trivedi and other members and to eliminate Hansraj Trivedi. In pursuance thereof, they reached in two cars at Radhika Gymkhana and they verified that Hansraj Trivedi and other members are playing game of cards and thereafter the members of Abdul Latif's gang resorted to firing in an indiscriminate manner and killed Hansraj Trivedi and eight other persons. Two persons of the Abdul Latif's gang waited near the staircase and used weapons with a view to disperse the crowd which had gathered near the Gymkhana. The said two accused also forced the shopkeepers 7 to down their shutters. According to the prosecution, the said act of the accused terrorized people living in the locality and it resulted in the death of nine persons viz. Kantibhai Jethabhai Solanki, Ramkumar Rajaram Upadhyay, Hansraj Shivgopal Trivedi, Gatu Valnath Jogi, Shailesh Amrutlal Panchal, Dinesh Dayalji Desai, Hasmukh Gandabhai Patel, Asharafkhan alias Badashahkhan Pathan and Jayantibhai Joitaram Patel. In support of the same, the prosecution examined 62 witnesses. Out of 62 witnesses, some turned hostile and not supported the prosecution case. As per the charge-sheet in respect of TADA Case No. 8 of 1993 and TADA Case No. 144 of 1993, 24 persons were shown as accused. Out of the aforesaid accused, accused Nos. 1, 2, 3, 4 and 20 were charged under Section 5 of the TADA Act as well as under Section 25(1)(c) and Section 27 of the Arms Act. They were also charged under Section 120-B of the IPC and all the accused were charged under Section 120-B read with Section 302/149 IPC. As accused were members of unlawful assembly, the charge under Section 148 of IPC was also framed against them. In TADA Case Nos. 2 and 4 of 1996, the charge was framed 8 against A-25 to A-28. Accused Nos. 25, 26 and 27 were charged under Section 5 of the TADA Act as well as under

13) Inasmuch as these appeals were filed against the conviction and sentence of the Designated Court in terms of Section 19 of the Act, this Court being an Appellate Court, we verified all the confessional statements and other connected materials which are applicable to the appellants before us with the assistance of the counsel on either side.

23) The statements of the appellants/accused recorded on various dates demonstrate the conspiracy to eliminate the business rivalry, and killing of other gang leader, Hansraj Trivedi and others and how they executed the same on 03.08.1992 in the premises of Radhika Gymkhana Club. 30

(4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule(3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence."

47) Though, the argument was raised that there was no compliance of Rule 15(5) that the confessions recorded were not sent to the Chief Judicial Magistrate or the Magistrate having jurisdiction over the area immediately after recording the same, if we scrutinize the evidence of the recording officers who were all not below the rank of Superintendent of Police/Dy. Commissioner that after recording the confessional 54 statements of the accused, particularly, in respect of A-27 and A-28 in accordance with the mandates of Section 15 and Rule 15, they were handed over to the Investigating Officers and in turn, to the concerned Court. As a matter of fact, PW-61, Khushpal Sing Nathulal Doshi, in his evidence asserted in categorical terms that the confessional statement of A-29, Aminkhan Mojkhan Pathan that was recorded by him kept in a sealed cover and sent to the Metropolitan Magistrate. He identified the confessional statement of the accused during the course of his deposition. If we consider other relevant acceptable materials which we have discussed in the earlier part of our judgment coupled with reliable dying declaration recorded by PW-6 and recovery of pistol as well as revolver and considering the factual aspects of this case, the objection raised by the appellants with regard to sub-rule (5) of Rule 15 is to be rejected. Evidence of Shiddharajsing Gulabsing Bhati

51) In the light of the above discussion, we confirm the conviction and sentence imposed by the Designated Court. If any of the appellants/accused are on bail, steps shall be taken by the Court concerned to serve the remaining period of sentence. All the appeals are, accordingly, dismissed.