New Delhi, Oct 5 (IANS) The Supreme Court Tuesday cleared the decks for a designated Terrorist and Disruptive Activities (Prevention) Act (TADA) court to give its verdict in a Mumbai builder’s murder case in which don Abu Salem is the prime accused.
Juhu-based builder Pradeep Jain was murdered in 1995.
An apex court bench of Justice P. Sathasivam and Justice R.M. Lodha upheld the Maharashtra government’s plea that Salem could not cross-examine the accused-turned-approver Riyaz Ahmed Siddiqui, who was subsequently discarded by the prosecution.
Approver Siddiqui was discarded as witness as evidence tendered by him was not aiding the prosecution case and the plea for his pardon too was withdrawn. The other approver was Maim Khan.
Besides Salem, other accused in the case are Riyaz Siddiqui, Maim Khan, Mohammed Mahendi Hassan and V.K. Jhamb. They were accused of criminal conspiracy to eliminate Jain.
Speaking for the bench, Justice Lodha said that the question involved in the matter is whether an accused has a right to cross examine an accomplice-turned-approver who had tendered evidence as prosecution witness but pardon granted to him was withdrawn.
The judgment said that after the withdrawal of the pardon, the approver-turned-prosecution witness relegates to the status of an accused and the evidence rendered by him (as an approver) becomes useless.
In such a situation, there is no scope for the other accused (Abu Salem and others in the instant case) to cross examine such a discarded approver-turned-prosecution witness, the court said.
The apex court faulted the TADA court in treating Riyaz Siddiqui as a hostile witness.
‘It (TADA court) failed to consider that the pardon granted and accepted by him was conditional… inasmuch as it was on the condition of his making a true and full disclosure of all the facts concerning the commission of crime and once the pardon granted to him stood forfeited, he was relegated to the position of an accused and did not remain a witness,’ the court said.
‘In the circumstances, there was no justification to permit the defence to cross examine (such a discarded approver turned witness),’ the judgment said.
It may be recalled that Salem had pleaded before the TADA court that he should be allowed to cross-examine both Siddiqui and Khan.
The plea was opposed by the prosecution on the grounds that it was not relying on their testimony as approver.
The state government took this position because it found that there was nothing in the testimonies of two approvers that could be counted upon by the prosecution in advancing their case against Salem and two others.
The prosecution had even withdrawn the grant of pardon to these two accused-turned-approver, the government said.
However, the TADA court allowed Salem’s plea to cross-examine the approvers.
It was against this order of the TADA court that the Maharashtra government moved the apex court.
While the apex court was seized of the matter it directed the TADA court to proceed with the trial but restrained it from pronouncing the verdict till it decided on the plea by the State government.
After Tuesday’s verdict of the apex court, the TADA court, which has already concluded the trial, is free to pronounce the verdict in the case.
