The Supreme Court on Tuesday rejected the argument that a three-judge and not a two-judge bench should hear appeals of convicts in the 2002 Godhra train burning case as the issue was of capital punishment.

A bench of Justices J K Maheshwari and Aravind Kumar dismissed the argument of senior advocate Sanjay Hegde, who was representing two convicts.

A three-judge bench has to hear appeals in cases in which the high courts have either confirmed death penalty or awarded it after hearing the appeals of parties but the Gujarat High Court commuted the death penalty to life imprisonment in the present case, it observed.

A Constitution bench of the apex court in September 2014 held a three-judge bench would hear appeals in all such cases in which death penalty was awarded by the high court.

"The Gujarat High Court, in the present case, commuted the death penalty of 11 convicts into life imprisonment and did not award the death penalty. The trial court had awarded the death penalty in this case," Justice Maheshwari said.

The rule and the apex court judgement did not bar hearing of the appeals in the present case by a two-judge bench, the judge added.

Hegde had referred to the Red Fort terror attack case, in which Mohammad Arif alias Ashfaq was given death penalty, and the Constitution bench held that a three-judge bench would hear cases relating to the award of the capital punishment.

"Suppose, this bench of two judges decides to award the death penalty to some accused then it has to be re-argued before another bench of three judges," he said.

The senior lawyer submitted though there was no problem with a two-judge bench hearing appeals by the state government against the high court's order converting the death penalty into life term, if the court held death penalty was to be given, the matter would go before a three-judge bench.

The bench said the state government, in its appeals, sought restoration of death sentences of 11 persons whose capital punishment was commuted to life imprisonment by the high court.

"We have perused the Rule III which is specific whereby the appeal or other proceedings arising out of the death sentence has been confirmed or awarded shall be heard by a bench consisting of not less than three judges," the bench said.

"The objection is repelled," the bench held and began the final hearing in the case.

Hegde was representing Abdul Raheman Dhantiya when he referred to the testimonies of prosecution witnesses who deposed against the convict.

He referred to the incident and showed a map of S6 bogie of the Sabarmati Express.

The state's counsel, on the contrary, justified the delay in the initial probe and said soon after the train burning incident, entire Gujarat plunged into communal riots.

"There was not a peace situation in the state. Entire state, including Godhra, was facing the riots and policemen were involved in maintaining law and order situation and even police help were sought from neighbouring states," the prosecutor said.

He added the delay in the investigation was, therefore, immaterial keeping in mind the overall situation.

The delay was not used for "creating" or "concocting" evidence, he said, "panchnama" rightly contained the details of the crime.

A panchnama is a formal document recording the details of a crime scene investigation and involves the presence of witnesses who verify the proceedings and observations made by the investigating officer.

Hegde referred to the prosecution's case and said "Ram Yagna" was organised by the VHP, RSS and Bajrang Dal at Ayodhya in Uttar Pradesh and thousands of "karsevaks" travelled there including from Gujarat.

Sabarmati Express was carrying many "karsevaks" from Ayodhya to Ahmedabad when it reached Godhra on February 27, 2002 and arrived late in Godhra at around 7.45 am.

Some slogans were raised by some "karsevaks" and some misbehaved with Muslim girls, argued Hegde.

The chain pulling took place at around 7.45 am and the prosecution claimed a mob of Muslims men started throwing stones at the train from behind the parcel office, Hegde said.

Referring to the prosecution's case, he said the train began moving towards Vadodara at around 7.55 am and its vacuum started dropping and consequently, it stopped near "A" cabin where over 900 Muslims, armed with sticks, iron pipes and swords, surrounded the train.

The attackers, according to the prosecution, threw burning rags but the train did not catch fire, he said.

There was stated to be a forced entry into coach S6 by the attackers who cut the canvas vestibule between S7 and S6 and the attackers entered with carboys filled with petrol and poured inside the coach.

Hegde reiterated prosecution's case saying a meeting took place at Aman Guest House where accused Abdul Rajak, owner of the guest house, and Salim Panwala (absconding) purchased 140 litre of petrol a day before.

The hearing would resume on Wednesday.

On February 27, 2002, 59 people were killed in the burning incident, triggering massive riots in the state.

Several appeals were filed in the apex court against the October 2017 verdict of the Gujarat High Court which upheld the conviction of several convicts and commuted death penalties of 11 convicts to life term.

The Gujarat government in February 2023 said it would seek death penalty for the 11 convicts whose sentences in the case were commuted to life imprisonment by the high court.

It came on record the 11 convicts were sentenced to death by the trial court and 20 others were awarded life term in the case whereas the high court upheld 31 convictions.

While the state appealed against the commutation of death penalty to life term for the 11 convicts, several convicts challenged the high court's verdict upholding their convictions in the case.