- (1.) These appeals by Mohmed Faruk @ Frauk Baba Alla Rakha Shaikh, Mohmed Umar Majid Ahmed Pathan @ Mohmed Fighter @ Mohmed Pahelwan @ Mohmedkhan, Sajidali @ Denny Mohmed Ali Saiyed, Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh, Iqbal Hussain @ Laliyo Dhobi Kasambhai Shaikh, Salimkhan Sikandarkhan Pathan @ Azamkhan Pathan and Gulam Mohmed @ Gulal Kadarbhai Shaikh (hereinafter described as appellant Nos. A-4, A-5, A-6, A-7, A-8, A-10 and A-11 respectively) are directed against judgment dated 6.2.2007 of the Designated Judge (TADA), Ahmedabad (hereinafter referred to as 'trial Court') whereby they were acquitted of charges under Section 3 and 5 of The Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short 'the Act') but were held guilty of different offences under the Indian Penal Code (for short 'IPC') and sentenced to life imprisonment. Appellant Nos.A-5 and A-8 were also convicted under Section 27 of the Arms Act, 1959 and sentenced to three years rigorous imprisonment and a fine of Rs.3,000/- and in default to undergo rigorous imprisonment for a further period of six months. They were also convicted under Section 135 of the Bombay Police Act.
(2.) Background facts (i) On 3.8.1992, Hansraj Trivedi, an alleged supplier of illicit liquor and eight others were gunned down at Radhika Gymkhana Club, Ahmedabad. Although the Police registered Criminal Case No.254 of 1992 in connection with that incident but effective steps were not taken to arrest Abdul Latif and his gang members, who were perceived as the culprits. There was public outcry against the police inaction. This compelled the concerned officers to intensify their efforts to arrest the accused. In the wake of this development, Abdul Latif and members of his gang planned surreptitious surrender of some unimportant members of their party so that real culprits could go scot-free. For this purpose, he sought help of a local politician Shri Hassankhan Shamsherkhan Pathan @ Hassanlala. The latter appears to have made efforts to facilitate surrender of some members of Abdul Latif gang but he could not succeed apparently because Abdul Rauf Mohmed Bhai @ Rauf Valiullah (former member of Rajya Sabha and General Secretary of Gujarat Pradesh Congress (I) Committee) who came to know of this plan stoutly opposed the same and is said to have prepared a memorandum, which was to be submitted to the Central Government to expose criminal-political nexus in the State. In order to prevent him from doing so, Abdul Latif and gang decided to eliminate Rauf Valiullah and to create terror among the people so that no one could come forward to oppose the plan of surreptitious surrender. The task of finishing Rauf Valiullah was entrusted to Rasoolkhan Yakubkhan Pathan @ Rasool Party and his gang. Some members of Rasool Party followed Rauf Valiullah from 6.10.1992 to 8.10.1992 but they could not target him. On 9.10.1992, appellant Nos.A-5, A-7, A-8 and A-11 were deputed to finish Rauf Valiullah. They accomplished the task at around 2.30 p.m. when A-5 fired three shots with 38-bore revolver from close range at the deceased while he was entering Maruti car parked outside Madhuban Building. (ii) Pradeep Bhai @ Bakkabhai Nautamlal Dave (PW-28), who had accompanied the deceased to Madhuban building and was present at the site, lodged F.I.R. (Exh.179) at Ellisbridge Police Station. Thereupon, a case was registered under Section 302 read with Section 120B IPC, Section 25(1) (a) and (b) of the Arms Act and Sections 3 and 5 of the Act. (iii) The investigation of the case was initially conducted by a police team headed by Assistant Commissioner of Police, 'D' Division, Ahmedabad, Mr. Makbulahmed Mohd. Hanif Anarwala, but in furtherance of Notification dated 12.2.1993 and corrigendum dated 17.2.1993 issued by the Government of India under Section 5 of the Delhi Special Police Establishment Act, 1946, with the consent of the Government of Gujarat, the case was entrusted to the Central Bureau of Investigation (CBI). After completing investigation and obtaining sanction from Commissioner of Police, Ahmedabad, the CBI filed charge-sheet under Section 3(1), 3(3) and (5) of the Act, Section 120B read with Section 302 IPC, Section 302 read with Sections 34 IPC, Section 302 read with Section 114 IPC, Section 302 IPC and Section 27 of the Arms Act. The case was committed to Designated Court and was numbered as TADA Case No.176 of 1993. Subsequently, two more charge-sheets were submitted and the same were numbered as TADA Cases No. 25 of 1996 and 32 of 1996. All the cases were consolidated and were tried together. (iv) The charges were framed on 2.7.1998 against 11 accused. All of them pleaded not guilty. The prosecution examined 124 witnesses and produced 147 documents, which were duly exhibited. Thereafter, statements of the accused were recorded under Section 313 of Code of Criminal Procedure (Cr.P.C.). They alleged that the police has foisted false cases against them to avoid embarrassment for having failed to solve the mystery surrounding the murder of Rauf Valiullah and that confessions were extracted from them by using coercion and threats.
(3.) After analyzing the evidence produced by the prosecution and considering the confessions made by the appellants except appellant No.A- 11, under Section 15 of the Act as also the statements made by them under Section 313 Cr.P.C., the trial Court concluded that the prosecution has been able to establish the charges of conspiracy and murder and held Javedkhan @ Jaid Azizkhan Pathan, Mohd. Taslim Mohd Umar Shaikh, appellant Nos.A-6, A-7, A-8 and A-10 guilty under Section 120B and Section 302 read with Section 120B IPC. Appellant Nos.A-4 and A-11 were held guilty of offence punishable under Section 114 read with Section 120B IPC and Section 302 read with Section 114 IPC. Appellant Nos.A-5 and A-8 were held guilty under Section 27 of the Arms Act and Section 135 of the Bombay Police Act. Abdul Khurdush was acquitted of all the charges but was found guilty under Section 176 IPC. However, all the accused were acquitted of the charge under Sections 3 and 5 of the Act. Abdul Khurdush was sentenced to one months imprisonment with a fine of Rs.500/- and in default to undergo further simple imprisonment of one month. Appellant Nos.A-4, A-5, A-6, A-7, A-8, A-10 and A-11 were sentenced to life imprisonment. Each of them was also directed to pay fine of Rs.5000/- and in default to undergo rigorous imprisonment for one year. Appellant Nos.A-5 and A-8 were sentenced to 3 years imprisonment for offence under Section 27 of Arms Act and in default to undergo 6 months simple imprisonment. For offence under Section 135(1) of Bombay Police Act, appellant Nos.A-5 and A-8 were awarded sentence of one month with fine of Rs.500/- and in default to undergo simple imprisonment for a period of one month. Arguments;