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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 98-99 OF 2009
Mohd. Arif @ Ashfaq ... Appellant
Versus
State of NCT of Delhi ... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. The appellant (admittedly a Pakistani national) challenges his
concurrent conviction by the trial Court and the High Court as also the
death sentence awarded to him, in this appeal.
2. On 22.12.2000 at about 9 p.m. in the evening some intruders started
indiscriminate firing and gunned down three army Jawans belonging to 7th
Rajputana Rifles. This battalion was placed in Red Fort for its protection
considering the importance of Red Fort in the history of India. There was a
Quick Reaction Team of this battalion which returned the firing towards the
intruders. However, no intruder was killed and the intruders were
successful in escaping by scaling over the rear side boundary wall of the
Red Fort. This attack rocked the whole nation generally and the city of
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Delhi in particular as Red Fort is very significant in the history which was
taken over by British Army way back in 1857 and was retrieved back to
India on 15.8.1947. It is also significant to note that the Prime Minister
addresses the nation from this very Red Fort on every 15th of August.
The three unfortunate soldiers who lost their lives in this attack
were:-
(i) A civilian Sentry namely, Abdullah Thakur
(ii) Rifleman (Barber) Uma Shankar
(iii) Naik Ashok Kumar, who was injured and then succumbed to
his injuries later on.
3. The Red Fort comes within the local jurisdiction of Police Station
Kotwali. The Information was recorded by DD No.19A, Exhibit PW-15/B
and Sub-Inspector (S.I.) Rajinder Singh (PW-137) rushed to the spot.
SHO Roop Lal (PW-234) who was the Station House Officer of Kotwali
police station also reached the spot and recorded the statement of one
Capt. S.P. Patwardhan (PW-189) which was treated as the First
Information Report. This First Information Report refers to two persons in
dark clothing and armed with AK 56/47 rifles having entered the Red Fort
from the direction of Saleem Garh Gate/Yamuna Bridge. It is further stated
that first they fired at the civilian Sentry Abdullah Thakur, secondly they
came across rifleman (barber) Uma Shankar near Rajputana Rifles MT
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lines and fired at him due to which he died on the spot. It is further
mentioned that lastly the intruders ran into the room in the unit lines close
to the office complex and fired shots at Naik Ashok Kumar who was
seriously injured. The FIR further mentions that thereafter they ran
towards ASI Museum complex and fired in the direction of police guard
room located inside the Museum. At this stage, the quick reaction team
started firing at them. However, they escaped into the wooded area close
to the ring road. The FIR also mentions that some fired/unfired
ammunition was recovered from the spot.
4. The investigation started on this basis. During the examination of
the spot, one live cartridge Exhibit PW-115/38 and number of cartridge
cases (Exhibit PW-115/1-37) and (Exhibit PW-189/32-71), three
magazines (Exhibit PW-189/1-3) of assault rifles, one of which had 28 live
cartridges (Exhibit PW-189/4-31) were found and handed over to the police
vide memo Exhibit PW-189/C and Exhibit PW-115/A. The empties of the
cartridges fired by the Quick Reaction Team through the self loading rifles
were deposited with ammunition store of 7 Rajputana rifles and were
handed over to the police later on vide memo Exhibit PW-131/C.
5. On the next day, i.e. on 23.12.2000, in the morning at about 8.10
a.m., the BBC news channel flashed the news that Lashkar-e-Toiba had
claimed the responsibility for the shooting incident in question which was
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entered in the daily diary. On the same morning one AK56 assault rifle
(Exhibit PW-62/1) lying near Vijay Ghat on the back side of Lal Qila was
found abandoned. There were seven cartridges in the magazine. They
were taken into police possession vide memo Exhibit PW-62/F. On the
same morning in early hours extensive search went on of the back side of
the Red Fort. The police found a polythene bag containing some currency
notes of different denominations and a piece of paper, a chit (Exhibit PW-
183/B) on which a mobile No.9811278510 was mentioned. According to
the prosecution, the intruders had escaped from that very spot by scaling
down the rear side boundary wall of Red Fort using the pipe and further a
small platform for landing from below the pipe. According to the
prosecution, while jumping from the platform, the said polythene bag with
cash and the paper slip fell out of the pocket of one of the intruders. The
currency notes and the paper slip were seized vide memo Exhibit PW-
183/A. It was on the basis of this cell phone number that the investigation
agency started tracing the calls and collecting the details from which it
transpired that between 7:40 p.m. and 7:42 p.m. on the night of the
incident, two calls were made from this mobile number to telephone
No.0194452918 which was the number of one BBC correspondent in Sri
Nagar, Altaf Hussain (PW-39). It was also found that three calls were
made from same mobile number to telephone number 0113355751 which
number was found to be that of BBC correspondent in Delhi, Ayanjit Singh
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(PW-41) between 9:25 p.m. and 9:33 p.m. The police found out that this
mobile No.9811278510 was being used from two instruments whose IMEI
number (identification number engraved on the mobile handset by the
manufacturer) were obtained from mobile service provider ESSAR. These
numbers were 445199440940240 and 449173405451240. The police
could also find out that the person who had mobile connection card having
No.9811278510 had another mobile cash card of ESSAR company with
No.9811242154 and from this number large number of calls were found to
have been made to telephone No.2720223 which was found to be the
number of telephone installed at flat No.308A, DDA flats, Ghazipur, Delhi.
This flat was registered in the name of one Farzana Farukhi. Similarly,
number of calls were found to have been made from telephone
No.2720223 to 9811242154. It was also found that number of calls were
made from cell No. 9811242154 to telephone No.6315904 which was a
landline number installed at House No.18-C, Gaffur Nagar, Okhala where
a computer centre in the name of `Knowledge Plus’ was being run. The
further investigation revealed that this said computer centre was being run
by one Mohd. Arif @ Ashfaq (appellant herein) who was residing at the flat
mentioned as flat No.308A, DDA Flats, Ghazipur where landline
No.2720223 was installed. The police, therefore, could connect the said
flat No.308A at Ghazipur and the computer Centre i.e. Knowledge Plus at
Okhala and could also connect Mohd. Arif @ Ashfaq with these two
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places. A surveillance was kept on these places for two days. During this
period of surveillance, the computer centre had remained closed. On the
basis of some secret information the premises at 308A, Ghazipur were
raided on the night of 25-26.12.2000 and the appellant-accused Mohd. Arif
@ Ashfaq was apprehended by the police while he was entering the flat. It
was found during the investigation that Farzana Farukhi in whose name
telephone No. 2720223 was registered was a divorcee sister-in-law of
Mohd. Arif @ Ashfaq i.e. her sister was married to Mohd. Arif @ Ashfaq
whose name was Rehmana Yusuf Farukhi. Mother of these two sisters,
namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.
6. On his apprehension, Mohd. Arif @ Ashfaq (appellant) was cursorily
searched by Inspector Ved Prakash (PW-173) during which one pistol
(Exhibit PW-148/1) with six live rounds was found with him. They were
sealed and taken into police custody. The appellant on his apprehension
accepted his involvement in the incident inside the Lal Qila and gave
further information to the policemen about the presence of his associate
Abu Shamal @ Faizal as also the ammunitions at their hide out at House
No.G-73 Batla House, Murari Road, Okhala, New Delhi.
7. He was immediately taken to that house by the raiding team which
was headed by Inspector Mahesh Chandra Sharma (PW-229) and truly
enough, in pursuance of the information given by him, the associate Abu
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Shamal was found to be there. The police party did not approach the flat
immediately as the house was found to be locked. However, at about 5.15
a.m. in the morning one person had gone inside the house and closed the
door from inside. The police then asked him to open the door but instead
of opening the door, he started firing from inside at the police party. The
police party returned the firing with their fire arms and ultimately the person
who was firing from inside died and was identified by appellant Mohd. Arif
@ Ashfaq to be Abu Shamal @ Faisal. Substantial quantity of ammunition
and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-
229/1), two hand grenades one of which was kept in Bandolier (Exhibit
PW-229/5), two magazines (Exhibit PW-229/2-3) one of which had 30 live
cartridges. Some material for cleaning arms kept in a pouch (Exhibit PW-
229/6) and Khakhi Colour Uniform (Exhibit PW-229/8) were recovered and
seized by the police vide seizure Memo (Exhibit PW-229/D & E). A
separate case was registered under Sections 186, 353 and 307, IPC as
also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of
the Arms Act was registered at New Friends Colony in FIR No.630/2000.
That case ended up in preparation of a closure report because the
accused had already died in the encounter with the police. After the above
encounter, the accused appellant was brought back to his flat where the
search had already been conducted by policemen. During that search one
Ration card which was ultimately found to be forged (Exhibit PW-164/A),
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one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13/1),
one cheque book of HDFC bank in the name of Mohd. Arif @ Ashfaq
(appellant herein), one ATM card, one cheque book of the State Bank of
India in the name of Rehmana Yusuf Farukhi, wife of accused appellant
was found. The said rifle was also taken into custody. One pay-in slip of
Standard Chartered bank (Exhibit PW-173/K) showing deposit of Rs.5
lakhs in the account of M/s. Nazir & Sons was found. The said firm
belonged to other accused Nazir Ahmad Qasid. This amount was
deposited by the appellant may be through Hawala from the high ups of
the Lashkar-e-Toiba. Mohd. Arif @ Ashfaq (appellant herein) was then
brought back and there S.I. Harender Singh (PW-194) arrested Mohd. Arif
@ Ashfaq (appellant herein). He searched him again when one Motorola
mobile handset was recovered from his possession. The number of that
instrument was found to be 9811278510. Its IMEI number which fixed the
identification number of the hand set engraved on the instrument was
445199440940240. The cell phone was thereafter taken in possession.
8. In his interrogation by S.I. Harender Singh (PW-194), accused made
a discovery statement which is recorded as Exhibit 148/E about one
assault rifle which was thrown near Vijay Ghat behind the Red Fort after
the incident by one of the associates (this was already recovered by the
police) and one AK-56 rifle and some ammunition behind the rear wall of
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Red Fort by his another associate. In pursuance of that, he was taken to
the backside of Red Fort and from there on his pointing out one AK-56 rifle
(Exhibit PW-125/1), two magazines (Exhibit PW-125/2-3) having live
cartridges, one bandolier and four hand grenades were recovered in the
presence of the ballistic experts S.K. Chadha (PW-125) and N.B. Bardhan
(PW-202). The same was taken to the police station. The ballistic experts
after defusing the hand grenades took the whole material in their
possession vide Exhibit memo PW- 218/C. Another discovery statement
(Exhibit PW-168/A) was made on 01.01.2001 through which he got
recovered three hand grenades from the place near Jamia Millia Islamia
University duly hidden. This spot was on the back side of his computer
centre `Knowledge Plus’. They were seized vide seizure memo Exhibit
PW-168/B. A separate FIR was also recorded by FIR No.3/2001.
9. The prosecution case, as it revealed on the basis of the investigation
which followed, appears to be that the accused-appellant was a Pakistani
national and eventually joined a terrorist organization called Lashker-e-
Toiba. The accused-appellant took extensive training by using
sophisticated arms like AK-56 rifles and hand grenades and had illegally
entered the Indian territory along with arms and ammunition in August,
1999 and camped himself at Srinagar in the company of other members of
Lashker-e-Toiba who were similarly motivated by that Organization. The
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Organization had also decided to overawe India by their terrorist activities
in different parts of India and to fulfill that object, the accused-appellant
and his fellow terrorists had planned an attack on Army stationed inside
Red Fort. According to the prosecution, the money required for this
operation was collected by the accused-appellant through hawala
channels, which was evident from the fact that during the investigation, he
had led the police to one of the hawala dealers in Ballimaran area in Old
Delhi. One Sher Zaman Afghani and Saherullah were the said hawala
dealers, but they could not be apprehended. The police, however,
recovered Rs.2 lakhs from the shop which was left open. From the
information given by the accused-appellant, the police ultimately caught
hold of 10 more persons, which included his Indian wife Rehmana Yusuf
Farukhi. The other accused persons were Nazir Ahmad Qasid, his son
Farooq Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam, Sadakat
Ali, Shahanshah Alam, Devender Singh, Rajeev Kumar Malhotra and Mool
Chand Sharma. Excepting the accused-appellant, nobody is before us, as
few of them were acquitted by the trial Court and others by the appellate
Court. It is significant enough that there is no appeal against the acquittal
by the High Court. There were number of other persons according to the
prosecution who were the co-conspirator with the accused-appellant.
However, they were not brought to book by the police. They were
declared as proclaimed offenders. There is a separate charge-sheet filed
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against those proclaimed offenders also.
10. In order to establish an Indian identity for himself, the accused-
appellant had married Rehmana Yusuf Farukhi who was also joined as an
accused. According to the prosecution, she had full knowledge about the
accused-appellant being a Pakistani national and his nefarious design of
carrying out terrorist activities. Significantly enough, she had married only
14 days prior to the shoot-out incident i.e. on 8.12.2000. She was of
course, paid substantial amounts from time to time by the accused-
appellant prior to her marrying him and this amount was deposited in her
bank account No. 5817 with the State Bank of India. The prosecution
alleged that the accused-appellant was in touch with Rehmana Yusuf
Farukhi even prior to the marriage. One other accused, Sadakat Ali was
arrested for having given on rent his property in Gaffur Nagar to the
accused-appellant for running a computer centre in the name of
`Knowledge Plus’. Sadakat Ali is said to have been fully aware of the
design of the accused-appellant and he had knowingly joined hands with
the accused-appellant and had not informed the police that he had let out
his premises to the accused-appellant. Huge money used to be received
by the accused-appellant which he used to deposit in the accounts of
accused Farooq Ahmed Qasid and Nazir Ahmad Qasid in Standard
Chartered Grindlays Bank’s branch at Srinagar and after withdrawing
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money so deposited, the same used to be distributed amongst their fellow
terrorists for supporting the terrorist activities. According to the
prosecution, huge amount of money was deposited by the accused-
appellant in the two bank accounts of Nazir & Sons and Farooq Ahmed
Qasid with Standard Chartered Grindlays Bank’s branch at Connaught
Place, New Delhi. The police was able to retrieve one deposit receipt
showing deposit of five lakhs of rupees in November, 2000 in the account
of Nazir & Sons. The said receipt was recovered from the flat of the
accused-appellant after he was apprehended on the night of
25/26.12.2000.
11. Some other accused of Indian origin had also helped the accused-
appellant, they being Devender Singh, Shahanshah Alam and Rajeev
Kumar Malhotra. They got a forged learner’s driving license No. 9091
(Exhibit PW-13/C) which was purported to have been issued by Delhi
Transport Authority’s office at Sarai Kale Khan, wherein a false residential
address was shown as B-17, Jangpura. On that basis, the accused-
appellant also got a permanent driving license (Exhibit PW-13/1) in his
name from Ghaziabad Transport Authority. The accused-appellant, with
the cooperation of these three accused persons, had submitted a
photocopy of a ration card, again with the forged residential address as
102, Kaila Bhatta, Ghaziabad. This very driving license was then used by
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the accused-appellant for opening a bank account with HDFC Bank in New
Friends Colony, New Delhi, wherein he had shown his permanent address
as 102, Kaila Bhatta, Ghaziabad and mailing address as 18, Gaffur Nagar,
Okhla, New Delhi. Needless to mention that even these two were not his
actual addresses. These were utilized by him for stashing the money that
he received from the foreign countries. Accused Babar Mohsin provided
shelter to the accused-appellant in his house in Delhi in February-March,
2000, so that the accused-appellant could prepare a base in Delhi for
carrying out terrorist acts in Delhi. This Babar Mohsin had also
accompanied the accused-appellant on his motorcycle to different parts of
Delhi in order to show various places of importance to the accused-
appellant, which could be targeted for a terrorist attack. The police was
also able to retrieve a letter (Exhibit PW-10/C) addressed to Babar Mohsin,
thanking him for the help extended by him to the accused-appellant during
his visit to Delhi. This letter was written from Srinagar. This letter was
seized by the police from the dickey of the motorcycle belonging to Babar
Mohsin on 07.01.2001. One other accused Matloob Alam was having a
ration shop in Okhla while accused Mool Chand Sharma was the area
Inspector of Food & Supply Department. Both these accused persons had
helped the accused-appellant in getting a ration card (Exhibit PW-164/A)
which contained false information. Accused Matloob Alam was charged
for distributing number of fake ration cards by taking bribe from the
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persons to whom the cards were issued. A separate FIR being FIR No.
65/2001 was registered against Matloob Alam at Police Station New
Friends Colony, New Delhi. In fact, the ration card mentioned earlier was
prepared by the accused Matloob Alam and the handwriting expert had
given a clear opinion that the said ration card was in the hands of Matloob
Alam himself. The prosecution, therefore, proceeded against 11 accused
persons, in all, who were charge-sheeted on the ground that they had all
conspired together to launch an attack on the Army establishment inside
the Red Fort so as to pressurize the Government of India to yield to the
demand of the militants for vacating Kashmir
12. The police got examined all the arms and ammunition from the
ballistic expert N.B. Bardhan (PW-202), Senior Scientific Officer-I, CFSL,
New Delhi. Needless to mention that the said witness had found that the
cartridges of the gun had actually been fired from AK-56 rifles which was
got recovered by the accused-appellant from the backside of Red Fort and
Vijay Ghat. The weapons were found by the witness to be in working
order. The hand grenades recovered at the instance of the accused-
appellant from Jamia Milia Islamia University were also examined and
found to be live ones and these were defined as “explosive substance”.
The pistol and the cartridges recovered from the possession of the
accused-appellant on his apprehension were also got examined by
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another ballistic expert Shri K.C. Varshney (PW-211), who vide his report
Exhibit PW-211/A, found the said pistol to be in working order and the
cartridges to be live ones and being capable of being fired from the said
pistol. The police also found that the eleven empties of fired cartridges
from Self Loading Rifles (SLRs) of the Army men were actually fired from
SLRs made by Ordinance Factory at Kirki, India and that they could not be
loaded in either of the two Assault Rifles recovered by the police.
13. This was, in short, a conspiracy and after obtaining the necessary
sanctions, the police filed a charge-sheet against 11 accused persons. All
the cases were committed to the Court of Sessions and though they were
registered as separate Sessions cases, they were clubbed by the trial
Court and the case arising out of FIR No. 688/2000 was treated as the
main case. We do not propose to load this judgment by quoting the
charges framed against all the accused persons. Suffice it to say that they
were charged for the offence punishable under Sections 121, 121A and
120-B IPC read with Section 302, IPC. The accused-appellant was
individually charged for the offence punishable under Section 120-B, IPC
on various counts as also for the offence punishable under Section 3 of the
Arms Act read with Sections 25 and 27 of the Arms Act as also Sections 4
and 5 of the Explosive Substances Act. Lastly, the accused-appellant was
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also charged for the offence punishable under Section 14 of the Foreigners
Act for illegally entering into India without valid documents.
14. The prosecution examined as many as 235 witnesses and exhibited
large number of documents. Accused Rehmana Yusuf Farukhi alone
adduced evidence in defence and examined her own mother and tried to
show that they did not know the accused-appellant was a militant and that
the money in the bank account of Rehmana Yusuf Farukhi was her own
money and not given by the accused-appellant.
15. The accused-appellant was convicted for the offence punishable
under Sections120-B, 121 and 121-A, IPC, Sections 186/353/120-B, IPC,
Section 120-B, IPC read with Section 302, IPC, Sections 468/471/474, IPC
and also under Section 420 read with Section 120-B, IPC. The accused-
appellant was also held guilty for the offence punishable under Section 25
of the Arms Act, Section 4 of the Explosive Substances Act and Section 14
of the Foreigners Act. We are not concerned with the convictions of
accused Nazir Ahmad Qasid, Farooq Ahmed Qasid, Rehmana Yusuf
Farukhi, Babar Mohsin, Sadakat Ali and Matloob Alam. Barring the above
accused, all the other accused persons were acquitted by the trial Court.
The accused-appellant was awarded death sentence for his convictions
under Section 121, IPC as also under Section 302 read with Section 120-
B, IPC. He was awarded rigorous imprisonment for 10 years for his
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conviction under Section 121-A, IPC. He was awarded sentence of life
imprisonment for his conviction under Section 4 of the Explosive
Substances Act, while on other counts, he was awarded rigorous
imprisonment for 7 years for the conviction under Sections
468/471/474/420, IPC. He was awarded rigorous imprisonment for 3 years
for his conviction under Section 25 of the Arms Act. He was awarded 2
years’ rigorous imprisonment for his conviction under Section 353, IPC and
3 months’ rigorous imprisonment for his conviction under Section 186, IPC.
He was slapped with fines also with defaults stipulation. The sentences
were, however, ordered to run concurrently. The other accused Rehmana
Yusuf Farukhi, Babar Mohsin, Nazir Ahmad Qasid, Farooq Ahmed Qasid,
Matloob Alam and Sadakat Ali were awarded various convictions;
however, their appeal was allowed by the High Court. That leaves us only
with the appeal filed by the present appellant. The High Court also
confirmed the death sentence awarded by the trial Court to Mohd. Arif @
Ashfaq (accused-appellant). The State had also filed one appeal
challenging the acquittal of accused Rehmana Yusuf Farukhi, Sadakat Ali
and Babar Mohsin for the serious offence of hatching conspiracy with co-
accused Mohd. Arif @ Ashfaq, Farooq Ahmed Qasid and Nazir Ahmad
Qasid to wage war against the Government of India, so also an appeal
was filed against the accused Farooq Ahmed Qasid and Nazir Ahmad
Qasid for enhanced punishment of death penalty in place of the sentence
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of life imprisonment awarded to them by the trial Court. The State,
however, did not file any appeal against the four acquitted accused
persons. The High Court, after examination in details, confirmed the
conviction and the sentence only of the present appellant, while all the
other appeals filed by other accused persons were allowed and they were
acquitted. The appeals filed by the State for enhancement, as also against
the acquittal of other accused persons from the other charges, were
dismissed by the High Court. That is how, we are left with the appeal of
Mohd. Arif @ Ashfaq, the present appellant herein.
16. The first contention raised by Ms. Kamini Jaiswal, learned counsel
appearing on behalf of the respondent was that no such incident of
outsiders going into the Red Fort and shooting ever happened. The
learned counsel further argued that the said shooting was as a result of the
brawl between the Army men themselves. In order to buttress her
argument, the learned counsel further said that even the police was not
permitted to enter the Red Fort initially and though an enquiry was held
regarding the incident, the outcome of such enquiry has never been
declared. The learned counsel attacked the evidence of Capt. S.P.
Patwardhan (PW-189) on the ground that the report made by him which
was registered as FIR on 22.12.2000 was itself suspicious, as it was
clearly hearsay. The learned counsel further relied on the evidence of
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Head Constable Virender Kumar (PW-15) who was a duty officer at
Kotwali Police Station and claimed that he received the information at
about 9.25 pm which he had recorded as DD No. 19A. It was pointed out
that the said DD Entry was handed over to S.I. Rajinder Singh (PW-137)
and Constable Jitender Singh (PW-54) was directed to accompany him. It
was also pointed out that SHO Roop Lal (PW-234) was informed about the
incident and he handed over to S.I. Rajinder Singh (PW-137) the report at
11.30 pm and it was on that basis that the FIR No. 688/2000 was
registered at about 12.20 am on 23.12.2000. The learned counsel then
relied upon the report in the newspaper Hindustan Times in which it was
stated that the police intelligence was not ruling out the possibility of shoot
out being insiders’ job. The learned counsel also referred to the evidence
of Constable Jitender Singh (PW-54), Naik Suresh Kumar (PW-122), Major
Manish Nagpal (PW-126), Mahesh Chand (PW-128), Retd. Subedar D.N.
Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh
(PW-137), as also the evidence of Major D.K. Singh (PW-144). It was tried
to be argued that there were inter se contradictions in the evidence of all
the witnesses and the whole story of some intruders going into the Red
Fort and shooting was nothing but a myth. It was also suggested by the
learned counsel that there was serious dispute in the versions regarding
the ammunition used by the intruders and ammunition used by the Army
personnel. Fault was found with the timing of registration of FIR No.
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688/2000. The learned counsel also stated that the prosecution had not
brought on record any register which is maintained for recording the entry
of any vehicle in the Red Fort. The learned counsel further suggested a
contradiction in the evidence of Hawaldar Dalbir Singh (PW-134) and the
statement of Retd. Subedar D.N. Singh (PW-131) regarding as to who took
the rifle from Hawaldar Dalbir Singh (PW-134), whether it was Major D.K.
Singh (PW-144) or Major Manish Nagpal (PW-126). About the timings of
various police officers reaching including that of SHO Roop Lal (PW-234),
the learned counsel pointed out that there were some deficiencies.
17. Before we appreciate these features of the evidence and the
contentions raised by the learned counsel for the defence, we must first
clarify that this Court ordinarily does not go into the appreciation of
evidence, particularly, where there are concurrent findings of facts. We
have very closely examined both the judgments below and found that there
is a thorough discussion as regards the evidence, oral as well as
documentary, and it was only after a deep consideration of such evidence
that the trial and the appellate Courts have come to the concurrent finding
against the appellant. In order to see as to whether the acquittal of other
accused persons can be linked to the verdict against the appellant, we
have examined even the other evidence which did not necessarily relate to
the criminal activities committed by the appellant. Inspite of the fact that
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there has been a concurrent verdict against this appellant, still we have
examined the oral and documentary evidence not only relating to the
appellant, but also to the other accused persons. As a result, we have
come to the conclusion that the trial and the appellate Courts have fully
considered the oral and documentary evidence for coming to the
conclusions that they did. In view of the concurrent findings, the scope to
interfere on the basis of some insignificant contradictions or some
microscopic deficiencies would be extremely limited. All the same, this
being a death sentence matter, we ourselves have examined the evidence.
18. From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major
Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar
Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear
opinion that what took place on the said night on 22.12.2000 could not be
just set aside as an internal brawl between the Army men themselves.
The suggestion is absolutely wild. We find from the evidence that none of
these witnesses who have been named above and who were the direct
witnesses to the firing incident have been given this suggestion in their
cross-examination that it was merely a brawl between the Army men. That
apart, there are some circumstances which completely belie the theory of
internal brawl. It would have to be remembered that a civilian Sentry
Abdullah Thakur was the first to lose his life. There is nothing to suggest
22
that the said Sentry Abdullah Thakur or the second casualty Rifleman
(Barber) Uma Shankar, as also Naik Ashok Kumar had developed any
enmity with anybody in the battalion. Further, if this was a brawl between
the Army men, there was no reason why Abdullah Thakur was shot at and
killed. We also do not find any reason to suspect the version of Major
Manish Nagpal (PW-126) who himself claimed to have fired six rounds in
the direction of Ring Road after taking a self loading rifle from Hawaldar
Dalbir Singh (PW-134). In fact, there is no contradiction in his version and
the version of Hawaldar Dalbir Singh (PW-134). The version of Major
Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major
D.K. Singh (PW-144) as also the evidence of Retd. Subedar D.N. Singh
(PW-131). Even Major D.K. Singh (PW-144) had fired alongwith Major
Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties
of which were given by these two officers to Retd. Subedar D.N. Singh
(PW-131). Ultimately, these empties were produced before the civil police
officers and were taken into possession vide Exhibit PW-131/A. This
version is also corroborated by Hawaldar Dalbir Singh (PW-134). We have
carefully seen the evidence of all these witnesses mentioned above and
found it trustworthy. It must be mentioned that at 9.23 pm, a call was
made to the Police Control Room (PCR) by Major Manish Nagpal (PW-
126) suggesting that some persons had run away after firing inside the
Red Fort and that they had gone towards the Ring Road. This was proved
23
by the lady Constable Harvir Kaur, PCR (PW-77) and the concerned
document is Exhibit PW-77/A which lends full support to the version and
suggests that there was an incident of shooting in the Red Fort. DD Entry
No. 19A dated 22.12.2000 made at Police Station Kotwali supports this
version of lady Constable Harvir Kaur (PW-77), which suggests that she
had flashed a wireless message about some persons having fled towards
the Ring Road after resorting to firing inside the Red Fort. The evidence of
Head Constable Virender Kumar (PW-15) is also there to prove the report
in this regard vide Exhibit PW-15/B. It must be remembered that Police
Control Room had received the calls of similar nature at 9.47 pm and two
calls at 9.50 pm vide Exhibits PW-42/A, PW-95/A and PW-43/A, which
support the version of the prosecution about the incident. The evidence of
Constable Indu Bala, PCR (PW-43) about having received a telephone call
from one Karan Mohan, the evidence of Col. A. Mohan (PW-51) that he
was informed by the Commanding Officer, 7th Rajputana, Delhi that some
civilians had entered Red Fort and the evidence of Constable Harvir Kaur,
PCR (PW-77) that she received information from Major Manish Nagpal
(PW-126) from telephone No. 3278234 about some persons having fled,
as also the evidence of Head Constable Harbans, PCR (PW-95) that he
had received a telephone call from Col. Mohan (PW-51) by telephone No.
5693227 stating that his Jawan posted at Red Fort was attacked, supports
the version that there was incident of shoot out and it could not be merely
24
dismissed as an internal brawl. This is apart from the evidence of other
police witnesses like SHO Roop Lal (PW-234) who had reached the spot
almost immediately after receiving the wireless message and who
confirmed the presence of S.I. Rajinder Singh (PW-137) and Capt. S.P.
Patwardhan (PW-189) on the spot. The senior officers of the police had
also reached the spot and their evidence only confirms the dastardly
incident of shoot out. There is enormous documentary evidence in shape
of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW-
152/B, Exhibit PW-152/F and DD No. 22A, which confirms that such
incident had happened. There is other piece of voluminous documentary
evidence about seizure of blood sample (Exhibit PW-123/B), seizure from
the spots (Exhibit PW-122/B), seizure of blood stained clothes (Exhibit
PW-114/A), Exhibit PW-123/A, Exhibit PW-122/A, seizure of magazine,
live cartridges and empties (Exhibit PW-189/C), Exhibit PW-115/A to 37
(37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope
and cap (Exhibit PW-183/D), seizure of various articles from Red Fort
(Exhibit PW-196/A) and Exhibits PW-230/A & 230/B etc. to suggest that
the incident as, suggested by prosecution, did take place. It is also to be
seen that the post mortem was conducted on the three bodies by Shri K. L.
Sharma (PW-187). This witness has opined that all the deceased had
bullet injuries by sophisticated fire arms and the shots were filed at them
from a distant range. It is significant that the doctor was not cross-
25
examined to the effect that the injury could have been caused by any
weapon which was available with the Army and not with the AK 56 rifles.
We are, therefore, not at all impressed by the argument that such incident
was nothing but a white wash given by Army to hide the incident of internal
brawl. We must reject the whole argument as too ambitious. We,
therefore, hold that the incident of shoot out did take place in which three
persons lost their lives.
19. Ms. Jaiswal then argued that though the premises were thoroughly
searched as claimed by Sub. Ashok Kumar (PW-115) he did not find a
fired bullet. She relied on the evidence of Hawaldar Dalbir Singh (PW-134)
who also claimed that the premises were being searched all through the
night. Similarly, she referred to the evidence of S.I. Rajinder Singh (PW-
137), Maj. D.K. Singh (PW-144), Capt. S.P. Patwardhan (PW-189), and
S.I. Naresh Kumar (PW-217) and Inspector Hawa Singh (PW-228).
According to her, all these witnesses had suggested that the search was
going on practically all through the night and that Capt. Patwardhan (PW-
189) had also ordered the search outside. The argument is clearly
incorrect. Merely because all these witnesses have admitted that there
was search going on for the whole night, it does not mean that the incident
did not take place. We have already pointed out that number of
incriminating articles were found, the most important of the same being the
26
empties of the bullets fired by the intruders. It is very significant that the
prosecution has been able to connect the bullets with the arms seized by
them.
20. One of the two rifles was found near Vijay Ghat from the bushes
while other has been recovered at the instance of appellant on 26th
December, 2000. The prosecution has examined three witnesses who
were the ballistic experts. They were N.B. Bardhan (PW-202), A.Dey (PW-
206), K.C. Varshney (PW-211). N.B. Bardhan (PW-202) has specifically
stated that both the rifles were used in the sense that they were fired. A.
Dey (PW-206) had the occasion to inspect the rifle recovered from Batla
House as Exhibit PW-206/B. The ballistic experts report was proved by
N.B. Bardhan (PW-202) as Exhibit 202/A. He clearly opined that the
empties found inside the Red Fort had been fired from the rifles (Exhibit
PW-125/1) and (Exhibit PW-62/1). He clearly deposed that he examined
39 sealed parcels sent by SHO, Police Station Kotwali. Out of these
parcels, according to the witness, parcel No.34 was containing AK 56
assault rifle so also parcel No.36 in same parcel, sub-parcel No.20
contained another assault rifle. He further confirmed in para (iii) of his
opinion that these were 7.62 mm assault rifles and the cartridges
contained in bearing mark C-1 in parcel No.3 which were marked as C-49,
C-52,C-56,C-58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm
27
assault rifle cartridge cases marked as C-72,C-74,C-75 to C-80,C-82 to C-
84 and C-86, C-89,C-91, C-94 to C-96, C-98, C-102, C-106 to C-108
contained in parcel No.19A had been fired from 7.62 mm AK assault rifle
marked as W/1 which was recovered from back side of Lal Quila on the
disclosure statement made by the appellant. He further opined in para (iv)
of his opinion that the cartridge cases marked as C-2 contained in parcel
No.4, thirty four fired 7.62 mm assault rifle cartridge cases marked as C-32
to C-48, C-50, C-51, C-53 to C-55, C-57, C-59 to C-63 and C-65 to C-70
contained in parcel No.19, as also sixteen 7.62 mm assault rifle cartridge
cases marked as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93,
C-97, C-99, C-100, C-101, C-103 to C-105 contained in parcel no.19A
were fired from 7.62 mm assault rifle AK-56 marked as W/2 rifle recovered
from Vijay Ghat. The report of the ballistic experts was proved as Exhibit
PW-202/C. He duly proved and identified the cartridges which were test
fired in the laboratory. He also proved and identified the rifles examined by
him and the magazines along with the other live cartridges found in the
same. There was hardly any cross-examination worth the name of this
witness and, therefore, it is clearly established that the cartridges cases
found inside the Red Fort were fired from the two rifles which were found
outside the Red Fort. This witness had also examined 11 empties of the
self-loading rifles used by the army men firing towards intruders and had
clearly opined that those empties could not have been loaded in AK-56
28
rifles examined by him. We must note that one of these rifles i.e. Exhibit
PW-62/1 was recovered on the discovery made by the appellant. We shall
come to the merits of that discovery in the latter part of our judgment.
However, at this stage, it is sufficient to note that the prosecution had
thoroughly proved the nexus between the cartridge cases which were
found inside the Red Fort and the incident. This nexus is extremely
important as while the guns were found outside the Red Fort the fire
empties were found inside. This clearly suggests that the incident of firing
took place inside the Red Fort while guns were abandoned by the intruders
outside the Red Fort. This witness also examined the contents of parcel
No.34, namely, one rifle two magazines, live cartridge, knife and a
Bandolier. This was again an assault rifle of 7.62 mm which we have
already considered earlier. However, along with the same, as per the
discovery memorandum a bandolier (Exhibit PW-202/3) was also found.
The contents of the Bandolier were in parcel No.35. It contained four hand
grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit
PW-50/5 to 8. Very significantly four detonators had a slip affixed with the
help of a tag and it was written in Urdu Khabardar. Grenade firing ke liye
tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for
firing. Pin should be taken out only when it is to be thrown). The existence
of these bandoliers and the grenades and their recovery goes a long way
to prove that the theory propounded by the defence that the incident never
29
took place inside the Red Fort at the instance of the intruders and it was an
internal affair of the Army men inside has to be rejected. In order to
complete the narration, we must also refer to the evidence of Shri A. Dey
who had examined the rifle found at Batla House during the encounter in
which one Abu Shamal was killed. That recovery is not seriously disputed
by Ms. Jaiswal.
21. We have the evidence of Subedar Ashok Kumar (PW-115) about the
recovery of 37 empties cartridges and one live cartridge from the Red Fort
so also the evidence of Hawaldar Ramesh Kakre (PW-116) about the
empty cartridges being found near sentry post where Abudullah Thakur
was killed. One live cartridge also was recovered from there. He further
deposed about the two empty cartridges found near M.T. Park where Uma
Shankar was killed. He deposed that these empties were found near
training store while seven empties were found near museum and the same
was handed over to Subedar Ashok Kumar (PW-115). Similar is the
evidence of S.P. Patwardhan (PW-189) about the place from where all this
spent ammunition was recovered. SHO Roop Lal (PW-234) and Naik
Suresh Kumar (PW-122) deposed about the places wherefrom the
cartridge cases and the magazines were found from inside the Red Fort.
All this supports the prosecution theory that the ghastly incident of firing did
take place at the instance of some outsiders inside the Red Fort.
30
22. This takes us to another contention of Ms. Jaiswal that in fact
nothing was found behind the Red Fort on the night of 23.12.2000. The
learned Solicitor General, Shri Subramanium placed a very heavy reliance
on the recoveries made in the same night or early morning of next day i.e.
23.12.2000. The recoveries of that day are extremely important. Ms.
Jaiswal invited our attention in this behalf to the evidence of S.I. Sanjay
Kumar (PW-183) who claimed that in the morning of 23.12.2000 during the
search of the backside of the wall of the Red Fort abutting to the ring road
he found some currency worth Rs.1415/- and a slip contained in the
polythene bag. It was a short slip on which a mobile number was written
being 9811278510. According to witness S.I. Sanjay Kumar (PW-183),
SHO Roop Lal (PW-234) was called at the place and it was SHO Roop Lal
(PW-234) who pasted the telephone number slip on a separate paper.
There was currency and both these articles were seized by the police.
This polythene bag was a transparent bag. Besides the evidence of PW-
183, SI Sanjay Kumar, we have the evidence of S.I. Naresh Kumar (PW-
217) and SHO Roop Lal (PW-234). The amount was separately kept vide
Exhibit 183/A while the slip was identified as Exhibit PW-183/C. We have
seen the photographs of the polythene bag and the currency as also the
slip which were also proved. Ms. Jaiswal attacked this recovery and the
seizure thereof vehemently. According to her this was a figment of
imagination by the investigating agency and there was no question of any
31
such recovery much less in the wee hours of 23.12.2000 at about 5-6 a.m.
She pointed out that the two witnesses S.I. Sanjay Kumar (PW-183) and
S.I. Naresh Kumar (PW-217) were clearly lying. We have examined the
evidence of all the three witnesses particularly in this behalf and we find
the evidence to be thoroughly reliable. Ms. Jaiswal could not bring to our
notice any material in the cross examination of these witnesses so as to
render the evidence uncreditworthy. Some efforts were also made by
relying on the evidence of S.K.Chadha (PW-125) that though he was a
member of the team, he reached the spot from where the recovery was
made at 10 a.m. on 23.12.2000. We fail to follow the significance of this
admission. It is not as if all the officers must remain at one and the same
place if they are the members of a particular investigation team. It may be
that S. K. Chadha might have reached the spot at 10 O’clock but that does
not mean recovery team consisting of other members did not effect
recovery of the polythene bag containing currency and the slip. Ms.
Jaiswal also urged that the premises were being searched thoroughly with
the help of dog squad and the search light and that it was not possible that
the search team would miss to notice the polythene bag and the currency
and the slip lying in it. The argument is only mentioned for being rejected.
What the investigating team would be looking for are not the polythene bag
and the small paper but the weapons and the men who handled those
weapons. A small transparent polythene bag could have easily been
32
missed earlier or may not have attracted the attention of the investigating
agency. We do not find anything to suspect the claim that the recovery
was made at about 5-6 a.m. We must note that this was the longest night
when the sun rise would also be late. Under such circumstances, in that
dark night if the investigating team, after the microscopic search, took a
few ours in recovering the small apparently insignificant polythene bag, it is
not unnatural. They could not be expected to find polythene bag
instantaneously or immediately. Much time must have been taken in first
searching inside the Red Fort. Therefore, if the polythene bag was found
at about 5-6 a.m. as per the claim of the prosecution agency, and not
earlier, there is nothing uncreditworthy in the claim. We are, therefore,
convinced that the polythene bag and the slip mentioning the cell phone
number were actually found at the spot. Ms. Jaiswal tried to find some
chinks in the armour by suggesting that S.I. Sanjay Kumar’s statement was
contrary to the statement of S.I. Naresh Kumar (PW-217). We do not find
any discrepancy between the two statements. Ms. Jaiswal also referred to
the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that
recovery was made by him at about 9 a.m. in the morning. What the
witness meant was that it was he who came in the possession of the items
at 9 a.m. There is nothing very significant in that assertion. The evidence
of SHO Roop Lal (PW-234) was also referred to who claimed that after the
polythene bag was produced before him which contained currency and
33
paper slip, he sealed currency in the same polythene with the help of cloth
and sealed under parcel given Exhibit No.24. There is nothing to dis-
believe this claim after all SHO Roop Lal (PW-234) was the senior most
investigating officer and there is nothing insignificant if S.I. Sanjay Kumar
(PW-183) finding the polythene bag handed over the same to SHO Roop
Lal (PW-234). A specific step has been taken by S.I. Sanjay Kumar (PW-
183) by getting the said bag photographed. We have seen the
photographs also. It is true that no photograph was taken of the polythene
bag containing currency note and the slip mentioning the telephone
number. They appear to be in separate photographs and it is quite
understandable as immediately after the finding of the polythene bag it
must have been handled by S.I. Sanjay Kumar (PW-183). It is only after
finding the slip and the telephone number mentioned thereon that by way
of abundant caution the photographs were taken. Anxiety was to show the
slip and the fact that there was a telephone number written on the slip.
Ms. Jaiswal then argued that Hawa Singh (PW-228) had stated that he
was told about the slip only in the evening though he joined the
investigation at 10.30 a.m. We do not find anything substantial in this
argument. Ms. Jaiswal further argued that there is contradiction in S.I.
Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharma’s (PW-229)
statement as to who had recovered the currency and slip and that there
was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183),
34
S.K. Chadha (PW-125) and Inspector Mohan Chand Sharma (PW-229).
Further, she tried to say that there was contradiction in the statement of
S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW-
217) on the question as to whether currency and slip was taken inside the
Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was
called on the spot of recovery. She also raised objections about the
photographs that they were not taken in `as is where is position’. We have
already applied our mind to this aspect and we are of the clear opinion that
the objections raised by the defence are absolutely insignificant. What is
material is the polythene bag being found. The police could not have
created this polythene bag containing currency and slip with a number
mentioned on it. There was no question of any false evidence being
created at that point of time which was hardly a few hours after the
shootout. It is true that the photographs of the polythene bag are not and
could be on `as is where is basis’. We have already given the reason
thereof. We have no doubts in our mind and we confirm the finding of the
trial Court and the appellate Court that the said polythene bag containing
the currency notes and the slip on which the cell phone number was
mentioned, was actually found on the spot which spot was abutting the
backside wall of the Red Fort. It has to be borne in mind that a major
incident of shootout had occurred wherein three lives were lost. The attack
was on the Red Fort which has emotional and historical importance in the
35
Indian minds. Large investigation team was busy investigating the whole
affair and, therefore, the police could not have produced out of the thin air
a small polythene bag containing currency and the slip. The spot where it
was found is well described and was on the escape route of the intruders.
That wall from inside the Red Fort has hardly any height though it is of
about 15 to 20 feet from the ground on the other side. We have seen the
proved photograph which suggests that from that spot one can easily land
on the extended pipe and from that pipe to the small platform and from
there to the ground. The polythene bag was found near this spot.
Therefore, we accept the finding by the trial Court and the appellate Court
that this polythene bag must have slipped from a person who scaled down
to the ground. At the beginning of the debate it was made out as if the
said wall was insurmountable and that nobody could have jumped from the
height of about 50-60 feet. Further on the close look at the evidence, the
photographs the hollowness of the claim of the defence was writ large.
23. There is one more significant circumstance to suggest that the
polythene bag must have been found where it was claimed to have been
found by the investigating agency i.e. the finding of AK-56 rifle from a
nearby spot in the bushes. We will consider the merits of that discovery
which was at the instance of the appellant in the latter part of our
judgment. Suffice it to say at this stage that the polythene bag was found
36
in the reasonable proximity of the spot from where AK-56 rifle was
recovered.
24. Barely within 4-5 hours of the finding out the chit and the currency
notes, the investigating agency found one AK-56 rifle with seven live
cartridges from a place near Vijay Ghat in the Ring Road behind the Red
Fort. A DD entry to that effect vide Exhibit PW-81/A was made. There is
evidence in the shape of Exhibit PW 78A proved by PW-78 Head
Constable Narender Singh which is a Police Control Room Form. The
prosecution also examined Head Constable Upender Singh (PW-89). The
evidence of Head Constable Satbir Singh (PW-81) proves the information
having been given to the PCR. There was a sketch of recovery Naksha
Mauka Baramadgi, seizure of rifle, magazine and the live cartridges from
Vijay Ghat is evidenced in Exhibit PW-62/B and also Exhibit 84/XIV. While
dealing with the evidence of the ballistic expert we have already shown the
connection between the empty cartridges and this rifle. This rifle was
marked as W/1 in the ballistic experts report and was identified as Exhibit
PW-125/1. There is nothing to belie this discovery which is well supported
by the evidence of Head Constable Narender Singh (PW-78), Head
Constable Satbir Singh (PW-81) and Head Constable Upender Singh (PW-
89). In fact Head Constable Upender Singh was the one who had found
the said rifle. Other relevant witness who corroborated this version is
37
Constable Ranbir Singh (PW-35) who had made the DD entry and had
received the message from police Control Room. The other witnesses are
SI Ram Chander (PW-62) who presided over the recovery and SHO Roop
Lal (PW-234) who was also present at the time of recovery and saw the
rifle. The other witnesses, namely, SI Sanjay Kumar (PW-183) and SI
Naresh Kumar (PW-217) have provided the corroborating evidence to this
recovery. The whole recovery is proved by the prosecution.
25. However, even before that the investigating agency started
investigation about the cell number which was found written in the slip
which was found in the morning at about 5-6 a.m. this cell number was to
provide a ray of light to the investigating agency which had no clue
whatsoever till then about the perpetrators of the crime. Ultimately, the
investigating agency on the basis of that number being 9811278510 not
only unearthed the conspiracy but also reached the main players including
the present appellant.
26. The investigation suggests that the said mobile number slip was
assigned to Inspector Mohan Chand Sharma (PW-229). This was a
mobile number on the basis of the cash card. At the relevant point of time,
the cash card implied a SIM card, a SIM card loaded with prepaid value
and such SIM card were readily available in the open market. There was
no necessity of registering with the service provide for obtaining a mobile
38
connection through cash card. All that was required was activation by the
service provider without which the cash card or the SIM card as the case
may be could not be used.
27. It has come in the evidence that the active mobile phone has two
components i.e. the mobile instrument and the SIM card. Every mobile
instrument has a unique identification number, namely, Instrument
Manufactured Equipment Identity, for short, IMEI number. Such SIM card
could be provided by the service providers either with cash card or post
paid card to the subscriber and once this SIM card is activated the number
is generated which is commonly known as mobile number. The mobile
service is operated through a main server computer called mobile
switching centre which handles and records each and every movement of
an active mobile phone like day and time of the call, duration of the call,
calling and the called number, location of the subscriber during active call
and the unique IMEI number of the instrument used by the subscriber
during an active call. This mobile switching centre manages all this
through various sub-systems or sub-stations and finally with the help of
telephone towers. These towers are actually Base Trans-receiver Stations
also known as BTS. Such BTS covers a set of cells each of them
identified by a unique cell ID. A mobile continuously selects a cell and
exchanges data and signaling traffic with the corresponding BTC.
39
Therefore, through a cell ID the location of the active mobile instrument
can be approximated.
28. As per the evidence of Inspector Mohan Chand Sharma (PW-229)
he collected the call details of the said mobile number which was received
in a computer installed in his office at Lodhi Road. He found that mobile
phone number 9811278510 was constantly used from Zakir Nagar and at
that time the IMEI number of the cell phone instrument used was
445199440940240. It was found that the said number was also used for
making calls to Pakistan. However, from 11.12.2000, the IMEI number of
the mobile phone No.9811278510 was changed to IMEI
No.449173405451240. It transpired from the evidence that this IMEI
number that the mobile phone number 9811278510 with the changed IMEI
number had also made calls to landlines which were discovered to be
belonging to BBC, Srinagar and BBC, Delhi. These calls were made
almost immediately after the incident of shootout. This number was also
used for making calls to Pakistan and pager number at Srinagar 01949696
and 0116315904. The latter number was found to be in the name of
Mohd. Danish Khan at 18C, Gaffur Nagar i.e. the computer centre run by
the accused appellant. It was also found that from this number calls were
made to 0113969561 which was found to have been installed at the shop
of one Sher Zaman who was allegedly an absconding accused and the
40
Hawala operator. The analysis of call details of 9811278510 suggested
that the said mobile number was used in two mobile instruments having
the aforementioned IMEI numbers. This was done in case of cell number
9811278510 with IMEI number 445199440940240 only between 26.10.200
to 14.11.2000 and recovered instrument having IMEI
No.4491731405451240 between 11.12.2000 to 23.12.2000. While
scanning earlier IMEI No.445199440940240, it was found that one other
mobile number 9811242154 was found to have been used in the said
instrument. This instrument used mobile number 9811242154 between
22.7.2000 to 8.11.2000. From this, Shri Subramanium, learned Solicitor
General urged that there were two mobile numbers, namely, 9811278510
and 9811242154 which were used and the two IMEI numbers namely
445199440940240 and 449173405451240. A pattern showed the use of
the third number which was 0116315904, the number of computer centre.
Shri Subramanium learned Solicitor General submitted the following data
for our perusal:-
“011-6315904- Computer Center
Found connected to Mobile No.9811278510:-
(1) 14.12.2000 at 125435 hrs
Found connected to Mobile No.9811242154:-
(1) 31.10.2000 at 211943 hrs
41
(2) 08.11.2000 at 082418 hrs
(3) 10.11.2000 at 144727 hrs
(4) 19.11.2000 at 163328 hrs
Found connected to Mobile No.9811242154 :-
(1) 09.09.2000 at 113619 hrs
(2) 08.09.2000 at 113753 hrs
(3) 02.10.2000 at 103130 hrs.”
Learned Solicitor General provided the data regarding the telephone
connection made by above number with the telephone connection of one
Attruddin who was a proclaimed offender in Kashmir.
29. It is also apparent, as argued by the learned Solicitor General that
number 9811242154 was constantly in touch with two numbers, namely,
0116315904 which was installed at 18C Gaffur Nagar computer centre and
011 2720223 installed in the name of Farzana, sister of Rehmana, the wife
of accused at 308A, Janta Flats, Ghazipur. This number 9811242154 had
thus a definite connection with mobile No.9811278510 and the two
instruments bearing IMEI numbers mentioned earlier with each other.
Therefore, these two points, namely, the computer centre and the flat at
308A, Janta Flat, Ghazipur were kept under observation. Relying on the
evidence of Inspector Mohan Chand Sharma (PW-229), learned Solicitor
General argued that calls made from No.9811242154 were between Zakir
42
Nagar and Ghazipur. It was found that the location of the phone used to
be at Ghazipur when the calls were made to that number from Zakir Nagar
and the location of phone used to be at Zakir nagar when the calls were
made from Ghazipur. Significantly enough, the `Knowledge Plus’ computer
centre remained closed for two days after the incident at Red Fort. The
investigating agency came to know about the ownership of the `Knowledge
Plus’ computer center and it was established that the accused Mohd. Arif
@ Ashfaq who was a resident of Ghazipur, owned this centre. All this
evidence by Inspector Mohan Chand Sharma (PW-229) went
unchallenged. The other witness who had produced the whole record was
Rajiv Pandit (PW-98) who proved the call record and the report to the
queries made to him by the investigating officer. Exhibit PW-98/A is the
information in respect of the mobile number 9811278510 which was active
from 26.10.2000 to 23.12.2000. While Exhibit PW-198/D is the information
stating that IMEI number 449173405451240 was used by mobile number
9811278510 and that IMEI number 445199440940240 was used by both
mobile numbers, namely, 9811278510 and 9811242154. There is hardly
any cross-examination of this witness Rajiv Pandit (PW-198) to dis-believe
his version. All this goes to suggest the definite connection between two
IMEI numbers and the two mobile numbers named above. It is needless to
mention that this analysis painstakingly made by Inspector Mohan Chand
Sharma (PW-229) led the investigating team to zero on the accused
43
appellant in the night of 25.12.2000.
30. It has come in the evidence of SI Omwati (PW-68) that she was
working as duty officer at police station special cell on 25.12.2000 and on
that day at about 9.05 a.m. Inspector Mohan Chand Sharma (PW-229) had
recorded his departure in connection with the case No.688 of 2000 along
with some other staff. It has also come in the evidence that on 25.12.2000
at about 9.45 p.m. a DD entry was made at the police station special cell
Ashok Vihar that Inspector Mohan Chand Sharma (PW-229) informed on
telephone that a suspect by name of Ashfaq Ahmed was about to come at
the house number 308A, DDA flats, Ghazipur and made a request to send
some officers. There is another entry bearing a DD No.10 to the effect that
Inspector Ved Prakash (PW-173) along with R.S. Bhasin (PW-168), SI Zile
Singh (PW-148) , SI Upender Singh (PW-89), SI Manoj Dixit, WSI
Jayshree and S.I. Omwati (PW-68), Constable Mahipal Singh and Head
Constable Rameshwar (PW-166) having left the police special cell Ashok
Vihar in pursuance of the message sent by Mohan Chand Sharma (PW-
229). This has been proved in the evidence of Inspector Ved Prakash
(PW-173). It has also come in the evidence of Mohan Chand Sharma
(PW-229) that he along with his team was at Ghazipur on 25.12.2000 while
SI Daya Sagar was deputed at the knowledge plus computer centre along
with the staff. He was informed at about 9.40 p.m. on his mobile phone
44
that Mohd. Arif @ Ashfaq was seen at Batla House and may have left for
Ghazipur. He also informed ACP Rajbir about it. ACP Rajbir Singh,
therefore, fixed 11 p.m. as the time for meeting him at the red light where
he reached along with his staff. This has been corroborated by S.I.
Omwati (PW-68) who speaks about DD entry No.10 recorded at special
cell at about 10.15 to the effect that certain special officers had left under
the supervision of ACP Rajbir Singh. As per the evidence of Inspector
Mohan Chand Sharma (PW-229) that a raid was conducted by them at
11.15 p.m. at flat No.308A, Ghazipur and at that time three ladies were
present. There it was decided that Ved Prakash would go inside the flat
and the remaining staff would keep a watch from outside. This has been
corroborated by Inspector Ved Prakash (PW-173). It was at about 12.45
a.m. that Mohd. Arif @ Ashfaq (appellant herein) came to the flat of
Ghazipur and knocked at the gate where he was overpowered by the staff
present. At that time one pistol 7.63 mouser and six live cartridges were
recovered from his possession. He did not have any licence for this pistol.
A memo of the seizure is Exhibit PW-148/B proved by sub-Inspector ZIle
Singh (PW-148). The entry in the Malkhana register is 32/XI. Inspctor Ved
Prakash prepared a rukka which is Exhibit (PW-173/A) and a DD entry
bearing number 9A was made at 2.35 a.m. on 26.12.2000 at police station
Kalyan Puri. A separate FIR number 419/2000 under Section 25, Arms
Act was also registered at police station Kalyan Puri, Delhi. The FIR is to
45
be found vide Exhibit PW-136B. The time of occurrence shown in the first
FIR is 12.45 a.m. on 26.12.2000. This pistol was identified by all the
recovery witnesses and experts in the Court while its capability of being
fired has been proved by Shri K.C. Varshney (PW-211) the FSL expert.
The pistol is Exhibit PW-148/1. At the time of its recovery, the pistol had
five cartridges in the magazines and one cartridge in the chamber of the
pistol. All this has been deposed by SI Zile Singh (PW-148). It was this
witness Zile Singh (PW-148) who identified appellant in the Court as also
proved the recovery of the pistol from his possession. It was at this time
after his apprehension that the accused disclosed that his associate Abu
Shamal @ Faizal was staying at his hide out at G-73, First Floor, Batla
House, Okhala. This has come in the evidence of Inspector Mohan Chand
Sharma (PW-229). We have absolutely no reason to dis-believe this
evidence of apprehension of the accused by the police team which is also
supported by documentary evidence. We have also no doubt that the
apprehension of the accused was possible only because of the scientific
investigation done by PW-229, Inspector MC Sharma.
31. We now consider the argument of the appellant that on the basis of
the recovery of the piece of paper having Mobile phone No. 9811278510,
the police did not actually reach the appellant as was their claim. It was
argued by Ms. Jaiswal, learned counsel appearing on behalf of the
46
appellant that Inspector S.K. Sand (PW-230) himself had claimed in his
Examination-in-Chief that he had deputed someone to contact the mobile
phone company ESSAR for the call details of the said mobile number on
13.2.2001 and obtained the same Vide Exhibit PW-198/B-1 to 3. On this
basis, the learned counsel claimed that the details of the phone
conversation on this number as also on other mobile number 9811242154
could not have been known nor could their connection with telephone
number 2720223 at the house of the appellant in Ghazipur or telephone
number 6315904 at the Computer Centre at Gaffur Nagar be established.
In this behalf, it was claimed that this evidence is directly counter to the
evidence of Inspector Mohan Chand Sharma (PW-229) who claimed the
knowledge about interconnection between 23rd to 25th December, 2001.
The learned Solicitor General, however, argued that the evidence of
Inspector Mohan Chand Sharma (PW-229) could not be faulted as he
claimed to have immediately collected all the call details of the said two
mobile phone numbers from the computer installed in their office at Lodhi
Road. It was on the basis of the information received in computer
regarding mobile No. 9811278510 that he established its connection with
mobile No. 9811242154 on the basis of IMEI number. The claim of
Inspector Mohan Chand Sharma (PW-229) that he had collected the
information from his computer earlier to 25.12.2010 was not controverted
nor do we find any cross-examination to that effect. It is true that Inspector
47
S.K. Sand (PW-230), the Investigating Officer, had sought the information
on 13.2.2001, but that does not mean that Inspector Mohan Chand
Sharma (PW-229) did not have the information earlier. There was no other
way otherwise to apprehend the appellant. It may be that the Investigating
Officer decided to obtain the details in writing seeking official information
from the original company and that is why his seeking that information on
13.2.2001 does not affect the prosecution case. In our view, the
contention raised by the learned Solicitor General is correct and has to be
accepted. It is to be noted that the defence has not refuted the claim of the
prosecution that telephone No. 2720223 which was in the name of
appellant’s Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A,
Ghazipur, where he was residing alongwith his wife Rehmana Yusuf
Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1). It is
also not the claim of the defence that telephone No. 6315904 was not
installed at the computer centre `Knowledge Plus’ which the appellant was
running alongwith other person Faizal Mohd. Khan (PW056). We,
therefore, reject the argument of Ms. Jaiswal, learned counsel that on the
basis of the chit, the investigating agency could not and did not reach the
appellant on the night of 25.12.2000.
32. The other argument raised by Ms. Jaiswal is that in fact there was no
evidence to show that the appellant in fact did have any mobile phone with
48
him when he was apprehended. Secondly, it was argued that it was not
proved that the appellant ever owned a mobile phone at all. The learned
counsel pointed out that when the appellant was apprehended, though he
was searched, all that the raiding party recovered was a pistol and that
there is no mention of the recovery of Motorola mobile phone bearing
number 9811278510. The learned counsel was at pains to point out that it
was during his second search after about six hours that the mobile phone
was shown to have been recovered. This, according to the learned
counsel, is nothing but a concoction. Ms. Jaiswal also pointed out that
there was a substantial delay in formally arresting the appellant and also
recovering other articles from his person.
33. We shall consider the second contention first. In this behalf, the
learned Solicitor General relied on the evidence of Faizal Mohd. Khan
(PW-56), who was also a tenant in the house of Nain Singh (PW-20). It
has come in his evidence that the appellant was also residing as a tenant
for some time before this incident took place. He has also pointed out that
one Adam Malik (PW-31) used to reside in the house of Nain Singh (PW-
20) and it was he who had brought the appellant with him in May, 2000
and got him one room in that house. As per the evidence of Faizal Mohd.
Khan (PW-56), it was Azam Malik (PW-31) who had introduced him to the
appellant. He was the one alongwith whom the appellant had then opened
49
a computer centre by the name of `Knowledge Plus’ at 18-C, Gaffur Nagar
and for opening that centre, he had invested Rs.70,000/- while the
appellant had invested 1,70,000/- for purchasing computer from one Khalid
Bhai. This part of the evidence is also admitted by the appellant in his
statement under Section 313 Cr.P.C. He, however, claimed in that
statement that he had paid lesser amount. Faizal Mohd. Khan (PW-56)
needed a telephone for their computer centre but since they did not have
ration card, he (PW-56) spoke to his cousin Danish Mohd. Khan and
requested him to get one telephone installed at their computer centre with
the help of his identity card and that is how Danish Mohd. Khan had got
installed a telephone in his own name at the `Knowledge Plus’ computer
centre. The learned Solicitor General pointed out that this evidence has
remained unchallenged. It is further argued that the evidence of Faizal
Mohd. Khan (PW-56) establishes that the appellant had a mobile phone
also. It is significant that admittedly, this witness was a partner of the
appellant in the computer centre. The claim of this witness that the
appellant had a mobile phone, was not even challenged during his
examination. From this the learned Solicitor General argued and, in our
opinion, rightly, that the appellant used to have a mobile phone with him.
The learned Solicitor General further pointed out that this piece of
evidence is then corroborated by the evidence of Aamir Irfan Mansoori
(PW-37), who was also a tenant with the appellant in the house of Nain
50
Singh (PW-20). He had also deposed that the appellant used to have a
mobile phone. The Solicitor General pointed out that there was no
challenge to the evidence of Aamir Irfan Mansoori (PW-37), particularly,
about his assertion that the appellant did have a mobile phone. From this,
the learned Solicitor General argued that it is an established position that
in the past, the appellant used to have a mobile phone. Similar is the
evidence of Rashid Ali (PW-232), who was also a resident in the house of
Nain Singh (PW-20). It is significant to note that this witness claimed that
on 8.12.2000, he was taken by the appellant for an Iftar party in the
evening. However, there the appellant got married to Rehmana on
8.12.2000 in the evening. This shows the proximity of the witness. He
further deposed that the appellant had a mobile phone. Even this witness
was not cross-examined regarding the availability of the mobile phone with
the appellant. We have no reason to disbelieve the above three witnesses
and, therefore, we hold that it was established by the prosecution that the
appellant used to have a mobile phone.
34. Once this position is clear, then it has to be seen as to why the
mobile phone was not taken in possession by the raiding party when they
actually apprehended the appellant and whether at that time he had the
mobile phone at all. The learned Solicitor General argued that the raiding
party had gone to Flat No. 308-A, Ghazipur to nab a suspected terrorist.
51
This was on the basis of the information gathered by Inspector Mohan
Chand Sharma (PW-229). The learned Solicitor General argued that the
raiding party had to ensure that once they nabbed the terrorist, he should
be disarmed first. This was necessary for the safety of the public at large
and, therefore, when the raiding party found and nabbed the appellant,
they first removed his fire arm and started digging further information about
any other terrorist who was the partner of the appellant and, therefore,
when the appellant disclosed about the other hide-out at G-73, Muradi
Road, Batla House, in order to avoid any further loss of life and harm to the
general public and also for preventing the said suspect from fleeing, the
raiding party took the appellant to the Batla House almost immediately.
The learned Solicitor General, therefore, argued that considering the
seriousness of the situation and further considering the element of very
little time at the disposal of the raiding party, the appellant was immediately
taken to Batla House, where a full fledged encounter took place resulting in
death of Abu Shamal, another terrorist as also in recovery of lethal
weapons like an AK-47 rifle and hand grenades. The learned Solicitor
General explained the so-called delay caused in recovery of the mobile
phone from the appellant. He also argued that the expediency of the
matter required stopping these terrorists from inflicting further harm to the
innocent society and, therefore, investigating agency had to move with the
break-neck speed which they actually did instead of wasting their time in
52
writing the Panchnamas of discovery and recovery etc. The learned
Solicitor General further argued that the very fact that there was an
encounter in Batla House, the location of which was known only to the
appellant, establishes the necessity for quick reaction on the part of the
investigating agency. In our opinion, this explanation is quite satisfactory
to reject the argument raised by learned defence counsel. We have,
therefore, no hesitation to hold that after the appellant was apprehended
on the night of 25.12.2000, the investigating agency recovered not only the
pistol, but a mobile phone bearing number 9811278510 which was with the
appellant.
35. Ms. Jaiswal also argued that the investigating agency had seized
only the mobile instrument bearing No.9811278510 but not the SIM card
and that was an extremely suspicious circumstance. It is to be noted in
this behalf that the instrument was seized in the morning of 26.12.2000.
The analysis of the telephone calls shows that the above mentioned
number did not work after 16.50 hours on 23.12.2000. Thus this number
was inactive on 24th and 25th December. Ms. Jaiswal argued that the
phone might have been sold or at least would have changed hands and
did not directly connect the appellant with the call made to the BBC
correspondent immediately after the attack. In this behalf, learned Solicitor
General relied on the evidence of Rajiv Pandit (PW-198). He pointed out
53
that the record regarding the SIM No 0006680375 did not exist. Learned
Solicitor General further argued that the letter dated 20.2.2001 of the
police Exhibit PW-114/XV clearly showed that the said SIM was activated
and an application in that behalf also made before the Court to un-seal the
case property so as to examine whether the SIM card number was
correctly noted in the seizure memo Exhibit PW-59/XIV or not. It has to be
seen that the number of cash card and the one found on the SIM vide
Exhibit PW-62/XIV were the same. The learned Solicitor General,
therefore, argued that the SIM card found in the telephone was not
activated and, therefore, there was no record available. However,
according to the Solicitor General, it has been proved that the instrument
number 4491713405451240 was on the cell phone recovered from the
appellant. In that behalf, reliance was placed on the evidence of S.I.
Harender Singh (PW-194), SI Zile Singh (PW-148) and Inspector Mohan
Chand Sharma (PW-229). From this, according to the learned Solicitor
General, the prosecution had established that but for the mobile number
which was collected on the basis of the chit, it was not possible to
apprehend the appellant at all. He further argued that the very same
instrument which has been recovered from the appellant was used for
calling BBC correspondent immediately after the attack and it was also
argued that the location of the instrument at that time was in the vicinity of
Red Fort. There is considerable force in the submission made by the
54
learned Solicitor General. The depositions of the prosecution witnesses
mentioned above, in our opinion, leave no doubt whatsoever in our minds
that mobile number 9811278510 was used in the instrument having IMEI
No.449173405451240 immediately after the attack.
36. This takes us to the telephonic conversation in which the two
aforementioned cell phones with two IMEI numbers were used which
create a complete link between the appellant and the crime. In this behalf
the first witness is Altaf Hussain (PW-39) who was the BBC correspondent
based in Srinagar and who claimed that sometimes the militant
organizations used to give him information claiming responsibility of any
terrorist acts. On 22.12.2000 he had received a call on his land line
No.2452918. He deposed that the caller told him that the incident inside
the Red Fort had been carried out by them and claimed in vernacular `do
daane daal diye hain’. The caller also claimed himself to be belonging to
Lashkar e Toiba. When he asked as to what it meant by Do daane daal
diye hain, he was told by the caller that it was a Fidayeen attack and that
they had attacked Army personnel. On this, the witness told the caller to
contact Delhi BBC office and also gave the telephone number of BBC,
Delhi to him. The wife of this witness Ms. Naznin Bandey (PW-40) also
deposed that Mr. Altaf Hussain was her husband and the aforementioned
telephone number 2452918 was in her name and the same was being
55
used by her husband also. This call was made almost immediately after
the attack which took place at about 9.25 p.m. His further evidence is that
one Ayanjit Singh (PW-41) was a BBC correspondent in Delhi. Ayanjit
Singh (PW-41) was having a telephone number 011 3355751 on which he
received a telephone call between 9-9:30 p.m. and someone claiming to
be belonging to Lashkar-e-Toiba told him that they had attacked the Red
Fort. When the witness asked as to from where he was speaking, the
witness was told by the caller that he was calling from inside the Red Fort.
He also told that they had killed two persons. The caller refused to identify
himself. This call remained for 2-3 minutes. Shri Satish Jacob (PW-150)
corroborated this version of Ayanjit Singh (PW-41) to the effect that on
22.12.2000 about 9 p.m. Ayanjit Singh who was a Desk Editor in the Delhi
office had received relevant call and had informed his colleagues also. He
also confirmed that Altaf Hussain (PW-39) was the BBC correspondent in
Srinagar. These call records were searched by the investigating agency
and were duly proved by the prosecution. It has already come in the
earlier part of the judgment that it was on 13.2.2001 that request for supply
of information regarding mobile number 9811278510 was made vide letter
Exhibit PW-230/K. By another letter Exhibit PW-230/N dated 27.1.2001,
General Manager, MTNL was requested to give details of the subscribers
of the telephone No. 011 3355751 which was the number of BBC Delhi,
telephone No. 2720223 belonging to Farzana Faruqui and installed at
56
Ghazipur at the residence of appellant and telephone No.6315904
belonging to Danish Mohd. Khan which was fixed at computer centre. The
prosecution proved that letter and the records through the witnesses. It
has come in the evidence that on 14.2.2001, the call details of
9811278510 were furnished along with cell ID list by way of letter Exhibit
PW-198/E and those call details were also duly proved vide Exhibit PW-
198/B1-3. A further letter dated 20.2.2001 was proved by the prosecution
to have been written to the General Manager, ESSAR cell phone for the
information in respect of the aforesaid mobile instrument bearing IMEI
No.445199440940240 and 44917340545120. In this letter, it was
specifically asked as to against which mobile number the speed card
No.0006680375 was activated. Rajiv Pandit (PW-198) deposed that the
details were already furnished on 14.2.2001 in respect of 9811278510
while the speed card details of the No.0006680375 were not available in
the records. The relevant documents are Exhibit PW-198/E in respect of
cell No.9811242154. The evidence of Rajiv Pandit went almost
unchallenged. His assertion that he, as a General Manager
(Administration), of ESSAR Cell Phones had provided the relevant
information of call details to Inspector Surender Sand in respect of mobile
No.9811278510, has gone unchallenged. From his evidence, it stands
proved that calls were made to BBC correspondent from cell
No.9811278510 on 22.12.2000 at 9.27 p.m. and two calls were made to
57
BBC, Delhi No.3355751 at 9.50 p.m. He also established that when the
call was made, the location of caller, as per mobile details, was at
Kashmere Gate whereas from the second call, the location was Chandni
Chowk. This evidence is also corroborated by the evidence of Mohan
Chand Sharma (PW-229) who located the two IMEI numbers mentioned
above and he also confirmed that as per the information collected by him
two calls were made to BBC offices one in Srinagar and one in Delhi.
There is absolutely nothing to dis-believe this version and, therefore, it is
clear that telephone No.9811278510 was used on the relevant date on
22.12.2000 for claiming the responsibility of the attack in Red Fort. When
call was made the IMEI number was 449173405451240. This situation
almost clinches the issue.
37. The corroboration to the fact that a message was received by BBC
Delhi telephonically regarding the attack on Red Fort on 22.12.2000 at
about 9 O’ Clock at night is to be found in the evidence of Satish Jacob
(PW-150) who proved Exhibit PW-150/B. There is no cross examination of
the witness on this aspect. The prosecution, therefore, is successful in
establishing that the cell phone No.9811278510 was used for making the
calls to Srinagar, BBC correspondent as also to the BBC correspondent in
Delhi. In these calls, the caller who was handling that cell phone not only
informed about the attack on the Red Fort but also owned the
58
responsibility of Lashkar-e-Toiba therein. These call details have been
proved by Rajiv Pandit (PW-198) whose evidence we have already
referred to earlier, vide Exhibit PW 198/B1 to B3. The inter se connection
in between this cell phone and cell phone No.9811242154 is also clearly
established by the witness Rajiv Pandit (PW-198) on the basis of IMEI
number used in that cell phone. He had also established that these calls
to the BBC were made from the vicinity of the Red Fort. While the call to
Srinagar was made from Chandni Chowk, the second call was made from
behind the Red Fort. It has already come in the earlier discussion that the
information received from the analysis of the cell phone records particularly
of cell No. 9811242154 along with its IMEI number came very handy to the
investigating team for further establishing the connection in between the
landline telephones which were at the computer centre owned by the
appellant at Ghazipur which number was in the name of his sister-in-law
Farzana Farukhi and where the appellant lived with his wife Rehmana
Farukhi. Ms. Jaiswal took us thoroughly through the cross examination of
this witness and pointed out that on the basis of Exhibit PW-198/DA, there
were some contradictory entries in Exhibit PW-198/DA and the other data
proved by the witness. We are not impressed by this argument firstly
because there is nothing to show that this is an authenticated document
and though Ms. Jaiswal claimed that this document was supplied to the
accused by the prosecution, there is nothing to support such a claim. We,
59
have, therefore, no hesitation in rejecting Exhibit PW-198/DA. Ms. Jaiswal
then pointed out that in Exhibit PW-198/E, there were certain
discrepancies. The witness had actually explained those discrepancies by
asserting “if the computer has reversed at some point, it may be due to
technical fault”. It is quite understandable that there could be some
technical problems in the computer. We have gone through the whole
cross examination very carefully but we do not find any reason to reject
Exhibit PW-198/E. In our opinion, the insignificant irregularities brought in
the cross examination would not call for rejection of the document and the
evidence. We, therefore, accept that cell phone No.9811278510 was used
at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the
day when the attack took place at or about the same time on Red Fort
wherein three innocent persons were killed. We also confirm the finding by
the trial Court and the appellate Court that it was this mobile number which
was found with the appellant when he was arrested. We have already held
that the theory that this mobile number belonged to the prosecution and it
was planted on the appellant is not only farfetched but totally un-
believable. We have also explained the delay in recovery of this mobile
number from the accused on the basis of its IMEI number. The other
corroborating evidence connecting the two mobile numbers namely,
9811278510 and 9811242154 and the IMEI Nos.44519944090240 and
449173405451240 and their interconnection with phone No.011 3355751
60
of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and
phone No.6315904 at computer centre is to be found in the evidence of
Rajiv Pandit (PW-198), Inspector Mohan Chand Sharma (PW-229) and
Inspector S.K.Sand (PW-230). The attempt of the investigating agency in
analyzing the call details of these two numbers succeeded in establishing
the connection of these two numbers with the number of BBC
correspondent at Srinagar, the number of BBC correspondent at Delhi, the
number at Farzana Farukhi’s residence and the number at the computer
centre in the name of Danish Mohd. Khan. But for this careful and
meticulous analysis which was of very high standards, it would not have
been possible to apprehend the appellant and to de-code the intricate and
complicated maze of the conspiracy. The timing of the calls made from
this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi
bearing No.011 3355751 are significant. It will be seen that the calls made
to Srinagar were at 7.41 p.m., 7.42 p.m. and 9.27 p.m. while the calls
made to BBC, Delhi were at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m.
Again, while the calls to Srinagar were made from the front side of the Red
Fort, the other calls were made from the back side of the Red Fort which
establishes the presence of this mobile phone in close proximity to Red
Fort when the calls were made. That is a very significant aspect.
61
38. All this evidence would leave no option for us except to accept the
prosecution’s contention that this cell phone No.9811278510 and the other
phone No. 9811242154 as also the two IMEI numbers were extremely
significant aspects.
39. The next circumstance which makes these mobile cell phones
significant was the evidence of PW-229, Inspector Mohan Chand Sharma
when he asserted that this mobile No.9811278510 was constantly used on
14.11.2000 from Zakir Nagar area. The witness claimed this on the basis
of the cell ID. It is to be seen that when the said mobile was used its IMEI
No. was 445199440940240 and the witness further asserted that during
this period phone calls from this number were made to Pakistan. The
witness explains that on 11.12.2000, the IMEI number was changed to
449173405451240 and a telephone call was made from this number to
0116315904 which is the landline number of computer centre run by the
appellant. The making of the calls to Pakistan is extremely significant.
This witness also explained in his evidence as to how on the basis of the
cell ID and the call record of the two mobile cell phones, namely,
9811278510 and 9811242154 they zeroed on the location of the accused.
This witness has explained that the earlier mentioned IMEI number
445199440940240 was also used in the second mobile number
9811242154. In his examination in chief, this witness has explained that
62
the calls were received and made from and to this number 9811242154
from Zakir Nagar and Ghazipur. He also asserted in his conclusion that
the cell ID of mobile number 9811242154 was at Zakir Nagar when the
calls were made to Ghazipur and the cell ID was at Ghazipur when the
calls were received on Zakir Nagar. This he said on the basis of the
computer installed in their office. The witness also explained that the call
details of the telephone number 9811242154 was collected from the official
computer and he also proved the document Exhibit PW-229 A which data
pertained to the period 22.7.2000 to 19.11.2000. He also connected the
two telephones by saying that the calls were made on 8.9.2000 at about
11.37.53 hours to pager No.1949696 from both these mobile cell phones.
He then asserted about the user of cell phone number 9811278510 on the
day when the attack took place. He also established the connection of
landline No.2720223 at Ghazipur which stood in the name of Farzana
Farukhi and another number 6315904 which was a landline number at
Knowledge Plus Computer Centre run by the appellant. It was on the
basis of the caller ID that the investigating team zeroed on these two
points. We do not see any reason to dis-believe this witness. The calls to
Pakistan from the concerned numbers is a very significant circumstance
particularly because the appellant is admittedly a Pakistani national and
was staying in India unauthorizedly.
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40. The witness also asserted on the basis of Exhibit PW-198/B1 to B3
that there were calls made on 20.12.2000 to 22.12.2000 in which calling
number could not be recorded as the calls were made from Pakistan to
India. He explained it that during those days clipping facility was not
available in India with Pakistan. He explained clipping facility to be Calling
Line Identification facility. He has further asserted that these calls from
Pakistan were received on mobile number 9811278510 when that mobile
number was at Jamia Nagar, New Friends Colony, Kashmere Gate and
Chandni Chowk and he further asserted that on 22.12.2000 when the calls
were received on 14.32 i.e. at 2.32 p.m. the position of the mobile was at
Darya Ganj. He also further explained that when the call was made from
this number 9811278510 on 22.12.2000 at 7.41 p.m. the location of this
number could be inside the Red Fort. Similarly he asserted about the calls
having been made from this number at 8.24 p.m. when this telephone was
at Kashmere Gate i.e. towards the back of Red Fort. He also asserted
about the calls having been made from this number to BBC, Delhi when
the location of cell phone was behind the back of Red Fort. Similarly, he
spoke about the call having been made to BBC, Srinagar on its landline
number from the same position when the cell phone caller was behind the
back of the Red Fort. He also further asserted that on the same day i.e. on
22.12.2000 the calls were received on this cell phone number when this
cell phone number was at Jamia Nagar and that the cell phone remained
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in the same position at Jamia Nagar constantly. There is no reason for us
to dis-believe this evidence which was collected so painstakingly. What is
most significant in this evidence is that this very cell phone number was
used to make the calls to and receive the calls from Pakistan.
41. The next significant circumstance is the evidence of Inspector
J.S.Chauhan of BSF (PW-162). He was posted at Rajouri on 26.12.2000
and on that day a message was intercepted by BSF to the effect that a
wanted militant in the shoot-out inside Red Fort case known as Ashfaq
Ahmed was apprehended while other militant Abu Shamal was killed.
According to this witness this message was being passed by LeT by a
militant called Abu Sakar to a station in Khyber in Pakistan Occupied
Kashmir. He proved the handwriting of one B.S. Virk DIG (West) and
proved the document as Exhibit PW-162A. The other witness on this point
is Constable Suresh Kumar, BSF Head Quarters Srinagar (PW-175). He
was the one who intercepted the message on his wireless set to the effect
that Delhi police had killed one militant Shamal Bhai and one more militant,
namely, Abu Hamad Hazarvi whose real name was Ashfaq was
apprehended. The message also suggested that militant Bilal Babar was
successful in running away and was hiding in Delhi in his hide out. He
asserted that he passed this message to the senior officers. In his cross
examination, it has come that it was not a coded message and the same
65
was being conveyed in Urdu. A very funny suggestion has been given to
this witness that it was a coded message meaning thereby the factum of
message was admitted. In his cross examination at the instance of the
appellant the witness asserted that the message was being passed from
Srinagar though he was unable to locate the exact point of the wireless set
from which it was being sent. There is hardly any cross examination.
Significantly, there is a reference to one Abu Bilal in the said intercepted
message. Very significantly, it has come in the evidence of Inspector
Pratap Singh (PW-86) and the evidence of S.K.Sand (PW-230) that when
the appellant was apprehended and his wallet was checked, a negative
was recovered from the wallet which was said to be of Abu Bilal. In fact
Inspector S.K. Sand (PW-230) got this negative developed into a
photograph. He then asserted that the said Abu Shamal who was involved
in the Red Fort shoot out case had died and an FIR No.9/2002 police
station Special Cell was registered in this behalf. The said Abu Bilal was a
proclaimed offender in FIR No.688 of 2000 Police Station Kotwali, Delhi
and as per the evidence of Mohan Chand Sharma he was subsequently
killed in an encounter. All this voluminous evidence would not only
corroborate the prosecution version to show the significant role played by
the appellant in handling both the cell phone numbers mentioned above. It
is of no minor significance that on the apprehension of the appellant the
news should reach Srinagar and from there to Pakistan Occupied Kashmir
66
by way of wireless messages not only about the involvement of the
appellant but also about Abu Shamal who was killed in the encounter as
also Abu Bilal who was a proclaimed offender and was then killed in
another encounter.
42. There is also some material brought by the prosecution about the
calls from these numbers to one Sher Zaman who is said to be a Hawala
dealer. The investigating agency raided the house of Sher Zaman on
12.01.2001. This was on account of the information received by the
investigating agency from the appellant. In that raid, a sum of
Rs.1,11,100/- was found at the said house and certain other documents
like diaries were also found which were seized under the seizure memo.
Mohd. Idrish (PW-74) who was the President of Dila Ram Afgani Market,
Ballimaran Delhi has proved the seizure. The fact that the calls were
made from cell phone 9811278510 were made by Mohd. Arif @ Ashfaq,
the appellant, to the telephone No.3969561 was established by Kashi Nath
(PW-46) who was representative of MTNL. He proved that this number
was installed by him in premises No.5123, Sharif Manjil and that was the
office of Sher Zaman. This evidence was also corroborated by Om
Prakash (PW-46). Very significantly, the documents seized at Sher
Zaman’s office included a Visa of Islamic Republic of Pakistan and an
identity card of NIIT etc. The seizure memo is proved by R.K. Ajwani (PW-
67
83). He was, at the relevant time, working in the Directorate of
Enforcement as the Chief Enforcement Officer and deposed that the
appellant in his presence identified the photograph to be of Sher Zaman @
Shabbir and accepted that he used to deliver hawala money. The visa slip
of Islamic Republic of Pakistan was proved and marked as Exhibit PW-
83/P1 and NIIT card No.1235-00304 with a photograph of Sher Zaman
was proved and marked as Exhibit PW-83/P2. There were some other
documents proved by this witness. The cross examination of this witness
is also lackluster. Therefore, this evidence is also extremely significant to
support the role played by the appellant in the conspiracy.
43. Even at the cost of repetition, we may mention that immediately after
the appellant was apprehended with a pistol and the live rounds he spilled
the beans and gave information about his other associate Abu Shamal on
the basis of which information the investigating team reached G-73, Batla
House at about 3.15 a.m. This is deposed to by Inspector Mohan Chand
Sharma. The house was locked. The investigating team lay there and
waited and at about 5.10 a.m. a man resembling the description given by
the appellant entered the house. The house was knocked at and the
police disclosed their identity but the same was not opened and therefore,
it had to be opened by the use of force. As per the evidence of Inspector
Mohan Chand Sharma (PW-229) the firing started from inside and the
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same was returned eventually leading to the death of Abu Shamal @
Faisal. It is very significant to note that from this house, one AK-56 rifle,
two magazines, 32 live and 67 fired cartridges were recovered. Two live
hand grenades, bullet proof jackets and khakhi uniform were also
recovered. It is significant that there is virtually no cross examination on
this aspect. The evidence of Inspector Mohan Chand Sharma (PW-229)
suggests that immediately after his apprehension, the appellant had owned
up the involvement in the Red Fort attack incident and that he showed his
residence to recover the arms and ammunitions and also disclosed about
his associate. There is absolutely no cross examination about the incident
at G-73, Batla House, Muradi Road, Okhla which place the police party
was led by and discovered by the appellant. There is nothing to challenge
the finding of the weapons & ammunition which were recovered at the
instance of and as a result of information given by the appellant. All this
has gone unchallenged in cross examination of Inspector Mohan Chand
Sharma (PW-229). All this is supported by documentary evidence like DD
entry bearing No.20 at Police Station New Friends Colony which
mentioned about the firing going in Gali N.8, Batla House. Ram Singh, ASI
(PW-92) proved this entry. Similarly, the receipt of information is entered
as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m.
Lastly, on the same day there is another entry DD No.22A at the same
police station on the basis of information by Inspector Mohan Chand
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Sharma and FIR No.630 of 2000 was also registered. The other significant
witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW-
92). We need not go into the contents of these entries excepting to
suggest that the information given by the appellant about Abu Shamal is
reflected therein. This brings us to a very important discovery statement
made by the appellant as also to the seizure in pursuance of the said
discovery statement.
44. The appellant was formally arrested after he was brought back at
about 6.45 a.m. by S.I. Harender Singh (PW-194). It is at this time that the
mobile phone No.9811278510 was recovered from his possession. The
seizure has been proved by Zile Singh (PW-148) which is Exhibit PW-148/
D. This witness proved that after his formal arrest by S.I. Harender Singh
in the search of appellant, Rs.1000 in cash and the mobile phone of
Motorola make was recovered. He then made a disclosure statement vide
Exhibit PW-148 E. This recovery of mobile phone was also corroborated
by Inspector Mohan Chand Sharma (PW-229). It had IMEI number
449173405451240 on which calls were made from mobile phone
9811278510 and as per the call details this was the instrument used for
mobile number 9811278510. We have already explained in the earlier part
of the judgment that this evidence could not be rejected on the mere plea
that the mobile number was not found or was not immediately taken in
70
possession by the investigating agency though they apprehended him on
the night of 25.12.2000. We have also pointed out as to how it would have
been disastrous to waste time in writing the Panchnama instead of
immediately acting on the information given by the appellant. We,
therefore, see nothing unnatural or unusual in the recovery of the mobile
phone 9811278510. After all, the subsequent results which followed
discovery statement by the appellant i.e. the knowledge about G-73, Batla
House and the encounter of Abu Shamal and the finding of his fire weapon
and the ammunition etc. do justify the quick action on the part of the
investigating agency. We, therefore, cannot view with suspicion the formal
arrest of the appellant and the recoveries effected thereafter or the seizure
memos executed.
45. After his arrest in the evening of 25.12.2000, the appellant firstly
disclosed about Abu Shamal @ Faizal. After the encounter of Abu Shamal
@ Faizal, when his formal arrest was made, he made disclosures vide
Exhibit PW-148/E. There is no cross-examination of S.I. Zile Singh (PW-
148) about the factum of the appellant having made a disclosure. S.I.
Harender Singh (PW-194) is another witness to speak about the Exhibit
PW-148/E. It has been baldly suggested to S.I. Harender Singh (PW-194)
that the appellant was tortured. The discovery statement which was made
by the appellant is to the following effect:-
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“Abu Shaimal had thrown his AK-47 rifle, magazine and
hand grenade into the shrubs near nullah behind the
wall of Red Fort. Abu Shad had thrown his AK-47 rifle
into the shrubs grown at Vijay Ghat. I can point out the
places and get recovered the weapons.”
Another witness examined on this issue was S.I. Satyajit Sarin (PW-
218). He asserted in his examination-in-chief that the investigation team
reached the Red Fort alongwith Mohd. Arif @ Ashfaq and the team was
joined by Inspector Hawa Singh (PW-228). They requested two/three
passersby to join the investigation, but they refused to join and, therefore,
without wasting any further time, they reached the spot and there they
found AK-56 Assault Rifle, two magazines tied to each other and a
bandoleer of military green colour containing four hand grenades in four
different packets. The site plan was prepared by Inspector Hawa Singh
(PW-228) and the recovery of the arms and ammunition was made and the
same were taken to P.S. Kotwali. The hand grenades were later on got
defused. The chance finger prints were tried to be taken and photographs
were taken.
46. The witness also gave a complete description of the four detonators
and a slip attached to the hand grenades. A complete description of the
shells was given by this witness. He also identified the said rifles,
magazines, knife and detonators, as also four hand grenades and the
bandoleer in Court. The other witness to support this discovery and the
72
recoveries pursuant thereto is S.I. Amardeep Sehgal (PW-227). He also
gave a complete story as deposed by the earlier witness. This evidence
was further corroborated by the evidence of N.B. Bardhan, Sr. Scientific
Officer in CFSL (PW-202), who was present at the time of recovery of
hand grenades being a ballistic expert. Another witness is S.K. Chadha
(PW-125). We have already discussed earlier the evidence of N.B.
Bardhan about the nature of the rifles, one found at Batla House and the
other recovered at the instance of the appellant from the Red Fort wall. He
has also spoken about the nature of the hand grenades. This discovery
was attacked vehemently by Ms. Kamini Jaiswal, learned counsel
appearing on behalf of the appellant, in all the aspects. The learned
counsel described this recovery as a farce and also asserted that this
discovery could not be said to be a discovery at all in view of the fact that
in all probability, the placement of the rifles, bandoleer etc. must have
known to the police for the simple reason that the whole area was almost
combed by number of police personnel for the whole night and even
thereafter i.e. in the night of 22.12.2000 and the morning of 23.12.2000.
We have seen the recovery Panchnama proved by the witnesses at Exhibit
PW-227/A. It has to be borne in mind that both the rifles and the
ammunition have not only been identified by the witnesses but it has also
been proved by the prosecution as to how they were used and the fact that
they were used actively in the sense that they were fired also. We have
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already discussed the evidence of the Ballistic experts, which went on to
corroborate the version by the prosecution. The learned counsel pointed
out that this weapon was found near to the slip which was recovered on
the night of 22.12.2000 itself. She also pointed out that weapon could not
be said to be hidden. They were just lying in the bush and, therefore, it is
just impossible to infer that they were not seen by the police. In short, the
learned counsel suggested that this is a fake discovery and the police
already knew about the AK-56 Assault Rifle, magazines and a bandoleer
etc. She pointed out that one other witness, namely, Abhinender Jain
(PW-28) was a part of the team in recovering the weapons allegedly at the
instance of the appellant and he did not speak about the disclosure made
by the appellant on 26.12.2000. We shall revert back to this discovery in
particular and the law relating to Section 27, Evidence Act a little later.
47. Another discovery at the instance of the appellant was on
01.01.2001 vide Disclosure Statement (Exhibit 28/A). However, there is
one more important discovery at the instance of the appellant, which is
proved at Exhibit 168/A. It was made on 01.01.2001 and has been proved
by R.S. Bhasin (PW-168) and S.I. Satyajit Sarin (PW-218). In this
discovery, the appellant disclosed that out of the hand grenades which he
had brought from Pakistan, three were hidden in the bushes inside
boundary wall of Jamia Milia Islamia University, which spot is just behind
74
the computer centre run by the appellant. Accordingly, this discovery
statement was recorded by R.S. Bhasin (PW-168) and he organized a
raiding team consisting of Inspector Hawa Singh (PW-228), Inspector
Mohan Chand Sharma (PW-229) and five others, who were not examined
by the prosecution. The team went to New Friends Colony at 2.25 pm and
appraised SHO Gurmeet Singh (PW-213), who alongwith two others (not
examined), joined the investigation. After taking the permission from Dr.
Farukh and Dr. Mehtab, one Raghubir Singh (PW-209) was asked by the
authorities to join the investigation. One Devender Kumar (PW-208) also
joined the raiding party. Thereafter, at the instance of the appellant, three
hand grenades were recovered kept concealed. A seizure memo was also
executed vide Exhibit PW-168/B and a Rukka was also prepared, on the
basis of which a new case was sought to be registered at P.S. New
Friends Colony. One more disclosure statement was made vide
Exhibit PW-168/D, where the appellant disclosed and agreed to recover
more hand grenades and AK-56 rifle which was recovered from Safa
Qudal, Sri Nagar. This version was supported by S.I. Satyajit Sarin (PW-
218) as also S.I. Amardeep Sehgal (PW-227) and Inspector Hawa Singh
(PW-228). There is nothing to disbelieve this discovery of hand grenades
which hand grenades were ultimately identified and their potency was
proved by N.B. Bardhan (PW-202). A feeble contention was raised by Ms.
Jaiswal, learned counsel that this discovery of the hand grenades should
75
not be believed because it is belated. She pointed out that the appellant
was in the police custody right from the night of 25.12.2000 and the
discovery statement was made and recorded on 1.1.2001. Insofar as the
discovery of grenades is concerned, we must say that nothing much was
argued. The significance of the grenades having been hidden right behind
the computer centre near the compound wall of Jamia Milia Islamia
University cannot be ignored. The appellant has no explanation as to why
the three hand grenades were hidden right behind the computer centre.
48. The learned Solicitor General very forcefully argued with reference
to various documents which supported this discovery and pointed out that
immediately after the recovery of these hand grenades, they were seized
properly and this recovery was supported by the independent evidence of
Devender Jain (PW-208) and Raghubir Singh (PW-209). He also pointed
out that there is nothing in the cross-examination of these two individual
witnesses to dispute or doubt the recovery of the hand grenades at the
instance of the appellant. It is to be noted that police could not have
produced the foreign made hand grenades to be planted either at the Red
Fort or at Jamia Milia Islamia University behind the computer centre.
Insofar as the discovery of hand grenades at Jamia Milia Islamia University
is concerned, we have no doubts about its genuineness and we accept the
same. Merely because the appellant was in custody for 4-5 days and
76
decided to disclose the information only on 01.01.2001, would not be a
reason by itself to doubt the same or to have any suspicion on the same.
In the case of this nature and magnitude and also considering the nature of
the appellant who was a Pakistani national and was allegedly sent to do
terrorist acts in India and as such a tough terrorist, was not expected to
give easily the information unless he was thoroughly interrogated.
Considering the peculiar nature of this case, we accept the discovery of
grenades at the instance of the appellant. Same thing can be stated about
the earlier discovery dated 26.12.2000 of the AK-56 Assault Rifle,
magazines, bandoleer etc. The very fact that these weapons were proved
to have been used would corroborate the discovery. If the general public
refused to join the investigation to become Panchas, that cannot be viewed
as a suspicious factum and on that basis, the investigative agency cannot
be faulted. After all, what is to be seen is the genuineness and credibility
of the discovery. The police officers, who were working day and night, had
no reason to falsely implicate the appellant. They could not have produced
AK-56 Rifles and the grenades of foreign make from thin air to plant it
against the appellant. It has been held in Suresh Chandra Bahri v. State
of Bihar [1995 Suppl (1) SCC 80] that even if the discovery statement is
not recorded in writing but there is definite evidence to the effect of making
such a discovery statement by the concerned investigating officer, it can
still be held to be a good discovery. The question is of the credibility of the
77
evidence of the police officer before whom the discovery statements were
made. If the evidence is found to be genuine and creditworthy, there is
nothing wrong in accepting such a discovery statement. We do not see
any reason to accept the argument that the police must have already
known about the weapon. Considering the fact that this attack was on a
dark night in the winters and the guns were thrown in the thick bushes then
existing behind the Red Fort wall, it is quite possible that they were missed
by the investigating agency. At any rate, the recovery of these guns from
the spot near which the whole horrible drama took place and the appellant
having knowledge about the same and further the proved use of these
weapons and their fire-power, would persuade us to accept this discovery.
Again, we cannot ignore the fact that the factum of discovery has been
accepted by both the Courts below.
49. There are some other significant circumstances relied on by the
prosecution to show that the appellant, who admittedly was a Pakistani
national and had unauthorizedly entered India, wanted to establish his
identity in India and for that purpose, he got prepared a fake and forged
ration card and on that basis, applied for a driving license and also opened
bank accounts. The only purpose in doing this was to establish that he
was living in Delhi legitimately as an Indian national.
78
50. On his arrest on 25.12.2000, a ration card was recovered and seized
from the very house at 308A, DDA flats, Ghazipur, Delhi. This card bore
the number 258754. This was in the name of Ashfaq Ahmed, S/o Akram
Khanat, R/o F-12/12, Batla House, Okhla, New Delhi. S.R. Raghav, retired
Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest
that this card was not issued by his department i.e. Circle 6, Okhla. Other
witness is Ms. Anju Goel, UDC (PW-164), who deposed that the
appellant’s ration card did not bear her signature. She also pointed out
that the signature appearing in Exhibit PW-164/A (ration card) was not her
signature. There is no effective cross-examination of both these
witnesses. Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165)
also referred to the aforementioned ration card proved by Ms. Anju Goel
(PW-164) and asserted that the signature and the handwriting on the said
card was not that of Ms. Anju Goel. Manohar Lal, UDC, Department of
Education (PW-172) deposed that the appellant’s ration card was not
issued from Circle 6 of the Ration office. Kushal Kumar (PW-174)
deposed that he had made entry of ration card of the appellant in his
register at his fair price shop. Ms. Sunita, LDC, Food & Supply Office,
Circle 7 (PW-191) gave specimen of two rubber stamps and they did not
tally with the rubber stamps on the ration card of the appellant. There is
absolutely no cross-examination. There is a report proved by Yashpal
Singh, Supply Inspector, Department of Food and Supply, Ghaziabad
79
(PW-2), being Exhibit PW-2/A, to the effect that no ration card in the name
of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office. Thus, it
is obvious that the appellant got prepared a fake ration card, where name
of his wife was mentioned as Bano and residence as 102, Kela Bhatta,
Ghaziabad, where he had never resided. This ration card, significantly
enough, was recovered from his house at 308A, DDA flats, Ghazipur,
Delhi. Yashpal Singh (PW-2) and Rajbir Singh, Area Rationing Officer,
Food and Civil Supply Department, Ghaziabad (PW-3) proved that the
ration card was in the name of Azad Khalid (PW-1) and there was no ration
card in the name of Ashfaq Ahmed S/o Akram Khanat. Azad Khalid
Siddique, Correspondent, Sahara TV (PW-1) himself stepped into the
witness box and deposed that there was one ration card in his name and
other in his father’s name, which were issued at the address of 102, Kela
Bhatti, Ghaziabad, which address was falsely given by the appellant
because the appellant had never stayed at the said address. Thus, it is
obvious that the ration card was fake and fabricated. The factual
information on the ration card also does not tally at all.
51. The investigating agency, on 3.1.2001, seized certain important
documents, they being a learner’s license issued by Shaikh Sarai Authority
bearing Exhibit No. PW-13/C, Form No. 2 of Ashfaq Ahmed for renewal of
learner’s license bearing Exhibit No. PW-13/D and a photocopy of the
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ration card of Ashfaq Ahmed bearing Exhibit No. PW-13/E. The seizure
memo is Exhibit PW-13/B. These documents have been proved by S.I.
Rajinder Singh (PW-137). This was in order to do the verification of the
driving license of the appellant. The witness suggests that he enquired
from Ms. Mamta Sharma (PW-16), ARTO, who confirmed that the same
was a genuine driving license having been issued by her office and hence,
proceeded to seize the supporting documents. It is obvious that the said
driving license was sought for on the basis of the ration card in the name of
the appellant, which was obviously fake, as we have already shown above
for the simple reason that the address given on this driving license was not
the genuine address of the appellant, whereas it was in fact the address of
Azad Khalid Siddique (PW-1) who had nothing to do with the appellant. In
this driving license also, the address given by the appellant was B-17,
Jangpura, Bhogal and it was issued by Sarai Kale Khan Authority. He
obviously did not reside on this address which is clear from the evidence of
Narayan Singh (PW-6). Thus, not only did the appellant got himself a fake
and forged ration card, but on this basis, also got prepared a fake learning
license, in which also, he gave a false residential address. All this was
obviously with an idea to screen himself and to carry on his nefarious
activities in the Indian cities. Nothing much has come in the cross-
examinations of these witnesses. We have, therefore, no hesitation to
hold that the appellant used a forged ration card and got a driving license
81
giving a false address.
52. The appellant, in order to legitimize his residence in Delhi, started a
computer centre at House No.18C, Gaffur Nagar, Okhla. Danish Mohd.
Khan (PW-44), Mohd. Khalid (PW-36), Faizal Mohd. Khan (PW-56),
Shahvez Akhtar (PW-113) and Shahnawaz Ahmad (PW-163) are the
witnesses on this aspect. Danish Mohd. Khan (PW-44) deposed that his
cousin Faizal had opened a cyber cafe with the appellant and this was told
to him in September, 2000. Previously both of them used to reside in the
house of Nain Singh (PW-20). Since Faizal did not have an identity proof,
he borrowed the identity card of this person and since the card was in his
name, the phone connection in this computer centre was also in his name.
He, undoubtedly, resiled from his statement before the police that he
applied for a telephone connection in his name. However, there is no
cross-examination of this witness about what was told to him by Faizal. In
his cross-examination at the instance of the Public Prosecutor, he admitted
that Faizal had asked him to help him in getting telephone connection. He
also admitted that Faizal had told him that for getting an internet
connection, a telephone was required. The telephone number of the
computer centre was 6315904 which was in the name of this witness.
53. The other witness in this behalf is Faizal Mohd. Khan (PW-56)
himself who deposed that he was residing in the house of one Nain Singh
82
(PW-20) at Okhla Village on a monthly rent of Rs.1,000/- and that he had a
personal computer on which he used to practice. He further deposed that
one Adam Malik (PW-31) also used to reside in the said house and it was
he who brought the appellant with him in May, 2000. It was this Adam
Malik (PW-31) who introduced him to the appellant and told him that the
appellant is a resident of Jammu. He wanted to open a computer centre
but was not having enough money and it was Adam Malik (PW-31) who
informed the appellant that the witness wanted to open a computer centre
and offered financial help. He managed Rs.70,000/- and the appellant put
Rs.1,70,000/- and that is how the computer centre was opened. The
witness stated that the twosome i.e. himself and the appellant employed
one Shahvez Akhtar (PW-113) and Shahnawaz Ahmad (PW-163) as
faculty members on the condition that they would get salary only when the
computer centre starts earning profit. He then deposed that he used the
ration card of Danish Mohd. Khan (PW-44) and a telephone connection
was obtained in the name of Danish Mohd. Khan (PW-44) and was
installed at the computer centre `Knowledge Plus’. We have already
referred to his assertion that the appellant had a mobile phone. In his
cross-examination, nothing much has come about the contribution given by
the appellant of Rs.1,70,000/-. He also asserted that it was the appellant
who managed to take the premises of computer centre on lease. Shahvez
Akhtar (PW-113) and Shahnawaz Ahmad (PW-163) have supported this.
83
Adam Malik (PW-31) also confirmed that he was the one who arranged for
the accommodation of the appellant in the house of Nain Singh (PW-20).
To him, the appellant had told that he was a Kashmiri and doing the
business of selling shawls. Nain Singh (PW-20) also supported the theory
of the appellant contacting him through his earlier tenant Adam Malik (PW-
31). To the same effect is the evidence of Aamir Irfan (PW-37) and Rashid
Ali (PW-232). All this clearly goes on to show that the appellant was all the
time making false representation, firstly, on his doing business of selling
shawls, secondly, on carefully entering as a tenant in the house of Nain
Singh (PW-20), thirdly, on defrauding Danish Mohd. Khan (PW-44) for
opening a computer centre for which he contributed Rs.1,70,000/- and
lastly, successfully getting a telephone installed at the computer centre. All
this was nothing but a deliberate effort to find a firm foot hold on the Indian
soil to carry out his nefarious design.
54. We have also gone through the evidence of Gian Chand Goel (PW-
21), which establishes the connection of the appellant with House No.G-73
Batala House, Murari Road, Okhala, New Delhi, where the encounter took
place in which the appellant’s companion Abu Shamal was killed. In his
evidence, Gian Chand Goel (PW-21) specifically stated that he did not
know anything about the appellant and that he had rented the house to
Rashid Ali (PW-232) on 6.12.2000 i.e. barely 16 days earlier to the incident
84
at a monthly rent of Rs.1,500/-. He also deposed that on 7.12.2000, two
other boys were brought by him and all the three started residing on the
first floor of his house. He deposed that Rashid Ali (PW-232) who was a
student of Jamia Milia Islamia University and the appellant were the
tenants of Nain Singh (PW-20) and later on, they shifted into his house as
tenants. He also referred to the encounter dated 26.12.2000, wherein
Abu Shamal was killed, though he did not know the name of Abu Shamal.
55. Rashid Ali (PW-232) had a significant role to play in this whole affair.
He asserted that he was a tenant of Nain Singh (PW-20) in 1998 while
studying in Jamia Milia Islamia University in B.A. IInd Year. He was
friendly with one Hamid Mansoori and Adam Malik (PW-31). He came to
know the appellant who was residing in the house of Nain Singh (PW-20)
as a tenant. He also confirmed that the appellant was having a mobile
phone with him. On 8.12.2000, the appellant took him to Roza Iftar Party
at Laxmi Nagar. Instead of the Iftar Party, the appellant got married to a
lady on that day. Significantly enough, the appellant had already gone as
a tenant to Gian Chand Goel (PW-21), however, it seems that still he was
making out as if he was residing in PW-20 Nain Singh’s house and in an
important function like his marriage, he took Rashid Ali (PW-232) telling
him that they were going for an Iftar Party in the month of Ramzan. All this
suggests that the appellant was very particular about his own personal
85
details and made various false representations to all those in whose
contact he came. Needless to say that he used all these witnesses to his
own benefit for carrying out his evil design in pursuance of the conspiracy.
56. This brings us to the evidence of Nain Singh (PW-20) and the
fantastic theory that the defence gave about the role played by this
witness. The said witness was examined to show that House No. 97-A,
Okhla Village was in the name of his mother and while he stayed on the
ground floor, his mother had rented out the first floor and the second floor.
He asserted that Adam Malik (PW-31) was the tenant on the second floor
and he had brought the appellant to his mother and his mother had rented
out the room to him at the rent of Rs.1,200/- per month. He also asserted
that he asked Adam Malik (PW-31) to get the house vacated, whereupon,
the appellant vacated the house after about one and a half months. He
was cross-examined in detail. It was brought out in his cross-examination
that he did not have any documentary evidence regarding the appellant
remaining in that house as a tenant. It was suggested to him that he was
working as an Intelligence man in the Cabinet Secretariat. He was made
to admit that he could not disclose the present official address or the
places where he moved out of Delhi. He was made to say “I cannot say
whether I am not disclosing these addresses as my identity in the public
would be disclosed”. He also refused to show his identity card in the open
86
Court while it was shown to the Court. He was made to say “I cannot
disclose whether I am working for RAW”. He then clarified that no fund
was at his disposal for going out of Delhi, but he was paid for the Railway
warrant or air ticket. Strangely enough, a suggestion was given to the
witness to the effect that the appellant never took the aforesaid house from
his mother on rent or that he was introduced by any of the other tenants of
that house. All through in his cross-examination, it was tried to be
suggested that the appellant never stayed in his house as a tenant. That
is all the cross-examination of this witness. In his statement under Section
313 Cr.P.C., the appellant suggested that he used to work for X-Branch,
RAW (Research & Analysis Wing) since 1997 and he had come to
Kathmandu in June, 2000 to give some documents to one Sanjeev Gupta
on a Pakistan Passport bearing No. 634417. He spoke that there was a
party named Paktoonmili Party and RAW was supporting that party since
last 30-35 years. He stated that one Sagir Khan was a member of that
party and he was arrested by the police of Pakistan alongwith his younger
brother and he received this news in Kathmandu and spoke to Sanjeev
Gupta in this regard. He further claimed that his cousin had also advised
him not to return to Pakistan for the time being and that Sanjeev Gupta
advised him to go to India and he accompanied him upto Rauxol and from
there, he (the appellant) came to India by train. He claimed that the
address of Nain Singh (PW-20) was given to him by Sanjeev Gupta as
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also his telephone number being 6834454. He then claimed that Nain
Singh (PW-20) gave a room in his house for his stay and advised him not
to tell his name and address to anyone and to describe himself as a
resident of Jammu. He claimed that Nain Singh (PW-20) used to do
business of money lending and the appellant used to help him in
maintaining his accounts. He then claimed that Nain Singh (PW-20)
helped him to open the computer centre. Thereafter, Nain Singh (PW-20)
got some money through Sanjeev Gupta from Nepal. The amount was
Rs.7 lakhs. However, Nain Singh (PW-20) did not disclose about receiving
of that huge amount and whenever he was questioned about any amount,
Nain Singh (PW-20) used to avoid such questions. He then claimed to
have contacted his family members who asked him to speak to Sanjeev
Gupta and after he spoke to Sanjeev Gupta, he came to know about
Rs.6,50,000/- having been sent to Nain Singh (PW-20) by him. The
appellant then claimed that Nain Singh (PW-20) got his account opened in
HDFC Bank and also got a cheque book which was shown to him. It was
at his instance that the appellant was asked to sit at the computer centre
and his cheque book of the HDFC bank used to remain with Nain Singh
(PW-20). According to the appellant, Nain Singh (PW-20) got only one
cheque signed by him and whenever he needed money, he used to take it
from Nain Singh (PW-20) in the sum of Rs.500/- to Rs.1,000/-. He then
claimed that one Chaman Lal in Chandni Chowk and one Sardar Ji in
88
Karol Bagh were also engaged in the business of money lending and the
appellant used to collect money from them on behalf of Nain Singh (PW-
20). He then went on to suggest that on the birthday party of his son, Nain
Singh (PW-20) got him introduced to Inspector R.S. Bhasin (PW-168) and
Inspector Ved Prakash (PW-173). However, he persisted in demanding
money from Nain Singh (PW-20) on which Nain Singh (PW-20) used to get
annoyed and because of that, he got the appellant involved falsely in this
case. He claimed that on 25.12.2000, Nain Singh (PW-20) called him from
his computer centre to his house on the plea that Inspector R.S. Bhasin
(PW-168) and Inspector Ved Prakash (PW-173) had to take some
information from him and he accordingly came to the said house.
Thereafter, these two persons who were in plain clothes and had come to
the house of the appellant in a white maruti zen car took him to a flat in
Lodhi Colony, where both the Inspectors alongwith one Sikh Officer
interrogated the appellant about his entire background and thereafter he
was dropped to his house by the same persons. Nain Singh (PW-20) was
not present at that time, but his wife informed him about the telephonic call
received from his in-laws at Ghazipur regarding dinner in the evening.
Thereafter, he took a bus and reached the house of his in-laws and asked
them whether they had made a call which they denied to have made. He
claimed to have finished his dinner by 10.00 pm when the police party
raided the house. The appellant stated that the police party threatened
89
him that if he spoke much, he will be shot dead and his signatures were
obtained on a blank paper. Then he was tortured and was constantly kept
in the custody of Inspector R.S. Bhasin (PW-168), S.I. Murugan and
Constable Jai Parkash. He then admitted to have put his signatures on the
blank paper under the fear of torture to himself and his sister-in-law,
mother-in-law and brother-in-law. He further said that he did not know any
other accused excepting his wife Rehmana Yusuf Farukhi. He claimed
that he was implicated in this case only because he is a Pakistani national.
57. All this would go to suggest that Nain Singh (PW-20) had a very vital
part to play in his (appellant) being brought to India and being established
there. Very strangely, all this long story runs completely counter to the
cross-examination of Nain Singh (PW-20), as has already been pointed
out. In his cross-examination, the whole effort on the part of the defence
was to show that the appellant was never a tenant of Nain Singh (PW-20)
and had never stayed at his place, whereas his defence was completely
contrary to this theory wherein the appellant has claimed that he was
intimately connected with Nain Singh (PW-20), inasmuch as, he used to
look after his accounts and used to assist him for recovery of the amounts
loaned by Nain Singh (PW-20) to various other people. The learned
counsel did not even distantly suggest to PW-20 Nain Singh the long story
stated by the appellant in his statement under Section 313 Cr.P.C. There
90
is not even a hint about the role played by Sanjeev Gupta in Nepal or the
amounts allegedly sent by Sanjeev Gupta to Nain Singh (PW-20) and Nain
Singh (PW-20) having refused to part with the amount in favour of the
appellant. There is nothing suggested to Nain Singh (PW-20) that the
appellant was working for the X-Branch, RAW, much less since 1997,
while he was in Pakistan. The learned defence counsel Ms. Jaiswal very
vociferously argued that Nain Singh (PW-20) was actually working for an
organization “RAW”. She also pointed out that a clear cut suggestion was
given about his RAW activities and his being a member of RAW, in his
cross-examination. She also pointed out that there was some
contradiction in the statement of Nain Singh (PW-20) and Adam Malik
(PW-31) about letting out the house to the appellant. Much was made of
the fact that Nain Singh (PW-20) refused to disclose his identity and shown
the identity card only to the Court. From all this, the learned counsel tried
to argue that Nain Singh (PW-20) was a RAW agent and was also involved
in business of money lending. She also pointed out that though Nain
Singh (PW-20) claimed that the accused had vacated the house, the
evidence disclosed that the appellant stayed at Nain Singh’s house till
December. She also pointed to the contradictory statement made by Gian
Chand Goel (PW-21). According to the learned counsel, while earlier the
witness said that the house was let out to Rashid Ali (PW-232) on
6.12.2000 and the appellant used to meet him, later on in the same para,
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he said that the appellant and Rashid Ali (PW-232) both, were his tenants.
Then the said witness claimed in his further cross-examination that the
appellant was his only tenant. From all this, the learned counsel urged that
there was a very deep possibility of Nain Singh (PW-20) being a RAW
agent and as such having given shelter to the appellant and that the
appellant stayed throughout in Nain Singh’s house only. Very significantly,
this claim of the learned defence counsel goes completely counter to the
cross-examination where the only suggestion given is that the appellant
was never a tenant of Nain Singh (PW-20) and never stayed at his house.
58. The learned counsel also invited our attention to the evidence of
Aamir Irfan (PW-37), Yunus Khan (PW-4) as also Ved Prakash (PW-173).
We have considered all these contentions but we fail to follow the
interesting defence raised by the appellant in his statement under Section
313 Cr.P.C. and complete contradictory stand taken while cross-examining
Nain Singh (PW-20). We also find nothing in the long story woven by the
appellant in his statement under Section 313 Cr.P.C. about his activities as
a RAW agent and about his being sent to Nain Singh (PW-20) by Sanjeev
Gupta from Nepal. We do find that there was reluctance on the part of
Nain Singh (PW-20) to show his identity card which he only showed to the
Court, but that does not, in any manner, help the defence case. Even if it
is accepted that Nain Singh (PW-20) was working for RAW, it does not
92
give credence to the defence theory that it was Nain Singh (PW-20) who
brought the appellant in India, arranged for his stay, took his services,
arranged for his computer centre and then ultimately, falsely got him
implicated. In the absence of any such suggestion having been made to
Nain Singh (PW-20), the tall claims made by the defence cannot be
accepted. We have considered the evidence of all these witnesses,
namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37),
Yunus Khan (PW-4) and Ved Prakash (PW-173), but the same do not
persuade us to accept the defence theory. It is obvious that the appellant
was staying with Nain Singh (PW-20) for some time and then used to
interact with the other tenants like Rashid Ali (PW-232) and Adam Malik
(PW-31) and at that time, he claimed to be belonging to Jammu and
claimed to be in the business of selling shawls. It is during that period
alone that he got married to Rehmana Yusuf Farukhi barely a fortnight
prior to the incident at the Red Fort. We, therefore, reject the argument of
Ms. Kamini Jaiswal on this aspect.
59. This takes us to the various bank transactions which throw much
light. Prosecution had claimed that when the diary was recovered on the
arrest of the appellant, the investigating agency found one telephone
number belonging to Sher Zaman @ Shabbir who was found to be an
Afghan national and according to the prosecution, he used to supply
93
Hawala money to the appellant. According to the prosecution, the
appellant used to deposit the money so received in his own account with
HDFC Bank, opened on the basis of fake documents. He also used to
deposit this money in two bank accounts of Nazir Ahmad Qasid (original
accused No. 3) and Farooq Ahmed Qasid (original accused No. 4).
According to the prosecution, this money which the appellant used to
deposit in the account of Nazir Ahmad Qasid (A-3) and Farooq Ahmed
Qasid (A-4) was distributed to the other terrorists in Srinagar. Ms. Jaiswal,
learned counsel appearing on behalf of the appellant, claimed that the
prosecution had not been able to prove the link in between Sher Zaman @
Shabbir and the appellant. According to her, the claim of the prosecution
that Rs.29,50,000/- was deposited in the accounts of M/s. Nazir & Sons,
Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18) was also not
established. The learned counsel argued that the prosecution was able to
barely prove deposit of Rs.5 lakhs, in the account of appellant but had
failed to prove that the appellant had deposited Rs. 29,50,000/- in other
accounts. According to the learned counsel, even this claim of the
prosecution that was based on the evidence of handwriting expert, was not
properly proved. The learned counsel also pointed out that while Nazir
Ahmad Qasid (A-3) and Farooq Ahmed Qasid (A-4) were acquitted, the
others including Sher Zaman @ Shabbir (A-13), Zahur Ahmad Qasid (A-
17), Bilal Ahmad Kawa (A-18) or Athruddin @ Athar Ali (A-19) were never
94
brought to the trial as they were shown to be absconding. At this juncture,
we cannot ignore the evidence of Kashi Nath (PW-46), an employee of
MTNL (PW-46), who deposed that telephone number 3969561 was
installed by him in premises No. 5123 which was the office of Sher Zaman
@ Shabbir (A-13). Very significantly, this number was also found in the
call details of the appellant having Mobile No. 9811278510. This version
of Kashi Nath (PW-46) was corroborated by Om Prakash (PW-47). Again
Idrish (PW-74) deposed that the cash of Rs.1,01,000/- was recovered from
the shop/office of Sher Zaman @ Shabbir (A-13), which shop/office was
raided pursuant to the statement of the appellant.
60. First, the fact that Sher Zaman @ Shabbir (A-13), Zahur Ahmad
Qasid (A-17) and Bilal Ahmad Kawa (A-18) being absconding, does not
and cannot in any manner establish the defence case to the effect that
these persons were never concerned with Hawala money through the
appellant or otherwise. As regards the Sher Zaman @ Shabbir (A-13), the
investigating agency could not have reached the shop of Sher Zaman @
Shabbir (A-13) unless the claim of the investigating agency that they found
his number in the diary is true. The fact of the matter is that the
investigating agency did reach his shop as mentioned in the earlier part of
this judgment. Therefore, it cannot be disputed that the appellant had
some connection with Sher Zaman @ Shabbir (A-13) who was then
95
established to be an Afghan national and who remained absconding till
date. The learned counsel for the defence also argued that Nazir Ahmad
Qasid (A-3) and Farooq Ahmed Qasid (A-4) have been acquitted by the
High Court and that there is no appeal by the State against their acquittal.
That may be true, but that would be a separate subject. At least prima
facie, that does not help the appellant at all. We will go through the
reasons for acquittal, after we have considered the evidence regarding the
bank transactions. We will consider this evidence now in details.
61. It has come in the evidence that the appellant opened an account on
13.9.2000 with HDFC Bank, New Friends Colony, New Delhi, where his
address was given as 102, Kaila Bhatta, Ghaziabad. The other address
was given as 18, Gaffur Nagar, Okhla, New Delhi. The document on the
basis of which this account was opened was the driving license of the
appellant. The first thing that comes to our mind is that both these
addresses were false. While the appellant had never stayed at 102, Kaila
Bhatta, Ghaziabad, his address 18, Gaffur Nagar, Okhla, New Delhi was
totally incorrect. It has come by way of evidence of Sushil Malhotra (PW-
210) that on the cash memo of the fees, the appellant wrote his address as
18, Gaffur Nagar, Okhla, New Delhi. In fact, the appellant had never
resided on this address, the date of the cash memo being 28.3.2000. The
prosecution had also examined Iqbal Hassan (PW-79) who had confirmed
96
that no such person has ever lived in this house, particularly, on the
relevant dates. Insofar as his learning license is concerned, the appellant
has given his address as B-17, Jangpura. On that basis, he got his
learning license from Sarai Kale Khan Authority. He has never stayed in
this address either. It has also come in the evidence of Inspector S.K.
Sand (PW-230) that learner’s license bearing address B-17, Jangpura was
fake and he further asserted that the area of Jangpura never falls under
the authority of RTO, Sarai Kale Khan. There is a report of the Motor
licensing authority vide Exhibit PW-230/C that the learner’s license was
fake. All this was confirmed by Narayan Singh (PW-6), UDC, Sarai Kale
Khan Authority and Ajit Singh Bajaj (PW-52). Insofar as driving license is
concerned, there is evidence of Hazarul Hasan, RTO Office, Ghaziabad
that this driving license was issued from Ghaziabad in favour of the
appellant through Ms. Mamta Sharma (PW-16), ARTO vide Exhibit PW-
13/A which is a copy of the driving license and Exhibit PW-22/C which is
also a copy of the driving license. Significantly enough, for this, the
address was shown to be 102, Kaila Bhatta, Ghaziabad. This was for
reason that unless the appellant had shown himself a resident of
Ghaziabad, he could not have got the driving license issued through
Ghaziabad authority. Therefore, his address found on the driving license
as 102, Kaila Bhatta, Ghaziabad was itself a false address. This address
was on the basis of the ration card which was a fake ration card in the
97
name of appellant’s wife Bano, who was allegedly residing at 102, Kaila
Bhatta, Ghaziabad. All this was proved to be false by Azad Khalid (PW-1),
Yashpal Singh, Supply Inspector, Department of Food and Supply,
Ghaziabad (PW-2) and Rajbir Singh, Area Rationing Officer, Food and
Civil Supply Department, Ghaziabad (PW-3). There is another ration card
which he got prepared in which his wife’s name was shown as Mrs. Bano
alongwith children. The address of this ration card was shown to be F-
12/12, Batla House, Okhla, New Delhi, where he never resided.
Therefore, on the basis of his driving license, when he got his HDFC Bank
account opened, it is obvious that he had given false information, much
less regarding his residential address which was also mentioned on his
driving license and which was not true.
62. The prosecution proved 9 cash deposit slips of Grindlays Bank, the
total amount being Rs.29,50,000/-. According to the prosecution, these
were in appellant’s handwriting while depositors’ name has been
mentioned as Aslam, Salim Khan, R.K. Traders and Rashid. We have
already discussed about the fake residential address given by the
appellant while opening the account with HDFC Bank. The details of this
account were proved by Sanjeev Srivastava (PW-22). He proved Exhibits
PW-22/B, C and F. Exhibit PW-22/F is a copy of the account statement of
Rehmana, the wife of the accused which suggests that from 15.9.2000
98
onwards upto 14.12.2000, on various dates, amounts like Rs.10,000/-,
Rs.40,000/-, Rs.50,000/-, Rs.1,50,000/-, Rs.2,00,000/- etc. were deposited
in cash. The total amount deposited was Rs.5,53,500/-. There is
absolutely no explanation by the appellant about the source from which
these amounts came. Corroborating evidence to the evidence of Sanjeev
Srivastava (PW-22) is in the shape of Rishi Nanda (PW-23) and Inspector
Ved Prakash (PW-173). Ved Prakash (PW-173) had found the ration card
in the name of the appellant, his driving license, cheque book of HDFC
Bank in his name, Passport of Rehmana (wife of the appellant), a cheque
book of State Bank of India, a digital diary and a personal diary and some
other documents. From these, Ved Prakash (PW-173) found that there
were three accounts, namely, in Standard Chartered Bank, Connaught
Place, New Delhi in the names of M/s. Nazir & Sons, Farooq Ahmed Qasid
(A-4) and Bilal Ahmad Kawa (A-18) which had account numbers
32263962, 28552609 and 32181669 respectively. He also detected
account number 0891000024322 in HDFC Bank which was opened with
the help of the driving license. Another witness S.I. Harender Singh (PW-
194) had prepared the memo of house search. P.R. Sharma (PW-9), who
was from State Bank of India, deposed that account no. 5817 was
belonging to Rehmana Yusuf Farukhi in which amounts of Rs.50,000/-,
Rs.1,50,000/-, Rs.52,500/- and Rs.30,000/- were deposited. He proved
the relevant deposit slips also. Another witness O.P. Singh (PW-64)
99
corroborated the evidence of P.R. Sharma (PW-9). The most important
link with the HDFC account as also with the deposit slips of Standard
Chartered Grindlays Bank came to light. Dr. M.A. Ali (PW-216), SSO,
CFSL, CBI, New Delhi, on the basis of his report, deposed that the account
opening form of HDFC Bank of the appellant, 9 deposit slips of Standard
Chartered Grindlays Bank as also deposit slips of the State Bank of India
account of Rehmana Yusuf Farukhi bore the handwriting of the appellant.
This clinches the issue about the account opened in HDFC Bank. It is to
be noted that there were three accounts in Standard Chartered Grindlays
Bank in the name of M/s. Nazir & Sons, Farooq Ahmed Qasid (A-4) and
Bilal Ahmad Kawa (A-18) which had account numbers 32263962,
28552609 and 32181669 respectively. The investigating agency collected
the documents from Standard Chartered Grindlays Bank including 9 cash
deposit receipts as also documents regarding the account numbers
32263962, 28552609 and 32181669. 9 cash deposit slips are purportedly
in the name of Aslam, Salim Khan, R.K. Traders and Rashid and all these
have been proved to be in the handwriting of the appellant. We have
already discussed about the account of HDFC Bank which was opened on
the basis of the driving license having a false address. We have also
referred to the bank documents in respect of Rehmana Yusuf Farukhi and
the amounts having been deposited in her account and also the pay-in
(deposit) slips in respect of her accounts. It must be noted that at least
10
one document out of these being questioned document No. 30B has been
proved to be in the handwriting of the appellant which has been proved by
the expert evidence of Dr. M.A. Ali (PW-216). We have already referred to
the evidence of Ved Prakash (PW-173) and S.I. Harender Singh (PW-194)
about the amounts belonging to the appellant and about the amounts paid
by the appellant to the tune of Rs.29,50,000/- in the accounts of M/s. Nazir
& Sons, Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18),
account numbers of which have already been mentioned above and the
fact that 9 deposit slips were in the handwriting of the appellant. It has
come in the evidence of Subhash Gupta (PW-27) that he had handed over
photocopy of the account opening forms of the three accounts mentioned
above, in which Rs.29,50,000/- were deposited by the appellant, to
Inspector Ved Prakash (PW-173). We then have the evidence of B.A.
Vani, Branch Manager, Standard Chartered Grindlays Bank, Srinagar, who
claimed that three bank accounts mentioned above were opened during
his tenure and in his branch belonging to M/s. Nazir & Sons, Farooq
Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18). He pointed out that the
amounts which were deposited in these accounts (by the appellant) were
further distributed by 40 original cheques by various persons. He referred
to 3 cheques of Farooq Ahmed Qasid (A-4), 29 cheques of M/s. Nazir &
Sons and 8 cheques of Bilal Ahmad Kawa (A-18). There is evidence of
Kazi Shams, SHO, Sadar, Srinagar (PW-99) who had recovered the
10
cheque book of M/s. Nazir & Sons at the instance of Nazir Ahmad Qasid
(A-3) and Farooq Ahmed Qasid (A-4). We also have the evidence of
Mohd. Riaz Ahmed, PA to DM, Badgam, J&K. He deposed that there was
a detention order passed against Nazir Ahmad Qasid (A-3) and Farooq
Ahmed Qasid (A-4). In the detention order, it was stated that both these
accused persons were connected with a foreign mercenary named Abbu
Bilal and they agreed to receive the fund from `LeT’ outfit in separate
account opened at ANZ Grindlays Bank, Srinagar and had also received
the first installment of Rs.3 lakhs in the account of Bilal Ahmad Kawa (A-
18), which money was withdrawn by him. The evidence of Hawa Singh
(PW-228) is to the effect that he had received 40 cheques of the above
mentioned accounts, which evidence was corroborated by S.I. Amardeep
Sehgal (PW-227) and S.I. Himmat Ram (PW-45). It was Inspector Pratap
Singh (PW-86) who had found the account numbers of M/s. Nazir & Sons,
Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18) from the diary
seized from the appellant. Further, the evidence of Sanjeev Srivastava,
Manager, HDFC Bank (PW-22) went on to establish that it was the
appellant who had opened the bank account in the New Friends Colony
Branch of the HDFC Bank on the basis of his driving license, in which an
amount of Rs.6 lakhs was deposited. This evidence was corroborated by
Rishi Nanda (PW-23). P.R. Sharma (PW-9), Manager-SBI, Ghazipur
spoke about the amounts received in the bank account of Rehmana Yusuf
10
Farukhi. This evidence was corroborated by O.P. Singh, Manager-SBI,
Ghazipur (PW-64). It has already been mentioned that as per the
evidence of Dr. M.A. Ali (PW-216), the account opening form of HDFC
Bank, New Friends Colony Branch and 9 deposit slips of Standard
Chartered Grindlays Bank, Connaught Place, New Delhi as also the
deposit slip of State Bank of India account of Rehmana Yusuf Farukhi bore
the handwriting of the appellant. The report is Exhibit PW-216/A at page
Nos. 1-11.
63. The argument of Ms. Jaiswal, learned counsel appearing on behalf
of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid
(A-4) have already been acquitted, is of no consequence. We may point
out that there is absolutely no explanation by the appellant either by way of
cross-examination of the witnesses or by way of his statement under
Section 313 Cr.P.C. as to where all these amounts had come from and
why did he deposit huge amounts in the three accounts mentioned above.
Rs.29,50,000/- is not an ordinary sum. Also, there is no evidence that in
his account in HDFC Bank, the appellant has Rs.6 lakhs. Further very
sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in
her account in the State Bank of India. How did the appellant receive all
these amounts and from where, are questions that remain unanswered in
the absence of any explanation and more particularly because the
10
appellant had no ostensible means of livelihood. It would have to be held
that the appellant was dealing with huge sums of money and he has no
explanation therefor. This is certainly to be viewed as an incriminating
circumstance against the appellant. The silence on this issue is only telling
of his nefarious design. It is obvious that the appellant was a very
important wheel in the whole machinery which was working against the
sovereignty of this country. All this was supported with the fact that 9
deposit slips, the bank forms for opening the accounts, the slip through
which amount was deposited in the account of Rehmana Yusuf Farukhi,
were all proved to be in the handwriting of the appellant. We have
absolutely no reason to reject the evidence of handwriting expert. All this
suggests that the appellant was weaving his web of terrorist activities by
taking recourse to falsehood one after the other including his residential
address and also creating false documents.
64. Ms. Jaiswal, learned defence counsel argued that merely on the
basis of the evidence of the hand writing expert, no definite conclusion
could be drawn that it was the appellant who deposited all this money into
the three accounts of Nazir Sons, Bilal Ahmad Kawa and Faruk Ahmad
Qasid. She also urged that accused Nos. 3 and 4 were acquitted by the
Court. We have already clarified earlier that the acquittal of Qasid would
be of no consequence for the simple reason that they may have been
10
given the benefit of doubt regarding their knowledge about the said
amounts being deposited in their accounts or for that matter their dispatch
for the terrorist activities. Some more evidence would have been
necessary for that purpose. It is undoubtedly true that there should have
been an appeal against their acquittal. However, that does not absolve the
appellant completely since he had to explain as to where he was receiving
money from for putting in the accounts of Qasid. This circumstance of the
appellant in failing to explain the huge amount and its source would be of
immense importance and would go a long way to show that the accused
was receiving huge amounts from undisclosed sources.
65. A very lame explanation has been given about the amounts in the
account of Rehmana. It was suggested that the monies were gifts from
relatives on account of her marriage. Her mother DW-1 also tried to
suggest the same. The explanation is absolutely false for the simple
reason that there is no proof about such a plea. Everything about this
marriage is suspicious. It is only on 8.12.2000 that the accused claims to
have got married to Rehmana. It was under mysterious circumstances
and in a secret manner that the accused got married to Rehmana. Dr.
M.A. Ali (DW-216) has been examined by the prosecution as the hand
writing expert who examined two pay-in-slips, namely, Exhibits PW-173/F
and PW-173/G. The other documents which were given for examination
10
were Q 29, Q30, Q30B, Q 30C, Q 31 and Q32 which are Exhibit PW 9/C to
F. Out of these, some of the documents were seized from the bank vide
seizure memo Exhibit PW 9/A. Document Nos.Mark Q 30 and 30 A and
Mark 30B have been proved to be particularly filled in the hand writing of
Mohd. Arif @ Ashfaq and partly in hand writing of Rehmana. This
suggests the amount of Rs.15,000/- has been deposited in the account of
Rehmana on 21.11.2000. Similarly, document marked Q-6, Q-6A and Q-
6B were also proved to be in the hand writing of the appellant and partly in
hand writing of Rehmana. Accused has no explanation to offer. There can
be no dispute that the accused had been depositing huge amount into the
account of Rehmana. Considering the dates on which the deposits were
made, the argument of the learned counsel that she received small
amounts by way of gifts for her marriage which had never taken place till
then, has to fall to ground. Again, accused Rehmana was acquitted as the
prosecution was not able to prove that she had been a party to the
conspiracy or knew about the conspiracy. That however, cannot absolve
the appellant. The reluctance on the part of the prosecution to file appeal
against her acquittal can also not help the accused. It is strange that a
person who is not even an Indian National and is a citizen of Pakistan got
into touch with this lady and got married to her on 8.12.2000 and before
that he should be depositing huge amounts into the accounts of Rehmana.
This becomes all the more strange that Rehmana had no reasonable
10
explanation for receiving these amounts. We, therefore, view this
circumstance as an incriminating circumstance. We entirely agree with the
High Court as well as the trial Court for the inferences drawn in respect of
these deposits made by the accused.
66. Ms. Jaiswal then severely criticized the finding of the Courts below
accepting the disclosures made by the appellant and the discoveries made
pursuant thereto. The main discovery which the learned counsel assailed
was the statement in pursuance of which the whereabouts of Abu Shamal
were made known to the investigating agency. The learned counsel urged
that no disclosure statement was recorded immediately after the
apprehension of the accused. She, therefore, urged that it could not have
been held by the Courts below that the information regarding the Batla
house and Abu Shamal being a terrorist in hiding on that address
proceeded from the appellant or that he had the knowledge thereof. The
learned counsel basically rests her contention on the fact that before
accepting the fact that the accused gave some information in pursuance of
which some discoveries were made, the investigating agency must record
a statement and in the absence of such a statement, discovery cannot be
attributed to the accused. Our attention was drawn to the evidence of PW-
229 who deposed that a statement was recorded immediately on the
apprehension of the appellant. The date mentioned on Exhibit PW 148 E is
10
26.12.2000. According to the learned counsel if the accused was
apprehended on the early night of 25.12.2000 then the date on Exhibit PW
148 E could not have been 26.12.2000. The counsel further says that
therefore the Batla house encounter was prior to recording of the
disclosure statement of the accused. The contention is not correct. It will
be seen that immediately after the apprehension the appellant was not
formally arrested, though he was in the custody of the investigating team.
The learned counsel pointed out that the witness’s statement was that the
accused was “arrested” and his disclosure statement was recorded. PW-
229 had undoubtedly stated so. There is other evidence on record that his
statement was recorded. It is indeed in that statement which is recorded
that he disclosed about his involvement in the Red Fort shoot out, the role
of Abu Shamal and about an AK-56 rifle. The witness went on to state
further that the accused disclosed that his associate Abu Shamal was
staying in the hide out at house No. G-73, first floor, Batla House, Okhla.
He also disclosed that he was having weapons and grenades and he also
disclosed that Abu Shamal is a trained militant of LeT and member of
suicide squad. Indeed, had this information not been disclosed
immediately after his apprehension, there was no question of the
investigating agency coming to know about the whereabouts of Abu
Shamal. Indeed, in pursuance of this information given the investigating
team did go to the aforementioned address and an encounter did take
10
place wherein Abu Shamal was killed and large amount of ammunition and
arms were found at that place. The learned counsel urged that in the
absence of any “recorded statement” immediately after his apprehension,
such discovery should not be attributed to the appellant. For the sake of
argument, we will assume that no statement was recorded prior to Batla
House incident. The learned counsel secondly urged that if admittedly the
accused appellant was formally arrested on the next day i.e. on 26th, then it
would be axiomatic that he was not in the custody of the police and,
therefore, all that evidence should be rendered as inadmissible.
67. It is indeed true that for normally proving any such information and
attributing the same to the accused the said accused must be in the
custody of the prosecution and then when he discloses or offers to
disclose any information, his statement is recorded by the investigating
agency for lending credibility to the factum of disclosure as also exactitude.
In pursuance of such information, the investigating agency proceeds and
obtains the material facts and thereafter executes a Panchnama to that
effect. We have already referred to this question in the earlier part of our
judgment that it was indeed a very tense situation requiring extreme
diligence on the part of the investigating agency whereby the investigating
agency could not afford to waste a single minute and was required to act
immediately on the receipt of the information from the appellant. This was
10
all the more necessary because the investigating agency were dealing with
an extremely dangerous terrorist causing serious danger to the safety of
the society. We do not see anything wrong in this approach on the part of
the investigating agency. The only question is whether the investigating
agency discovered something in pursuance of the information given by the
accused. The events which followed do show that it is only in pursuance
of, and as a result of the information given by the accused that the
investigating agency zeroed on the given address only to find a dreaded
terrorist like Abu Shamal holed up in that address with huge ammunition
and the fire arms. If that was so, then the question is as to whether we can
reject this discovery evidence merely because, as per the claim of
defence, a formal statement was not recorded and further merely because
a formal arrest was not made of the accused.
68. Firstly speaking about the formal arrest for the accused being in
custody of the investigating agency he need not have been formally
arrested. It is enough if he was in custody of the investigating agency
meaning thereby his movements were under the control of the
investigating agency. A formal arrest is not necessary and the fact that the
accused was in effective custody of the investigating agency is enough. It
has been amply proved that the accused was apprehended, searched and
taken into custody. In that search the investigating agency recovered a
11
pistol from him along with live cartridges, which articles were taken in
possession of the investigating agency. This itself signifies that
immediately after he was apprehended, the accused was in effective
custody of the investigating agency.
69. Now coming to the second argument of failure to record the
information, it must be held that it is not always necessary. What is really
important is the credibility of the evidence of the investigating agency
about getting information/statement regarding the information from the
accused. If the evidence of the investigating officer is found to be credible
then even in the absence of a recorded statement, the evidence can be
accepted and it could be held that it was the accused who provided the
information on the basis of which a subsequent discovery was made. The
question is that of credibility and not the formality of recording the
statement. The essence of the proof of a discovery under Section 27,
Evidence Act is only that it should be credibly proved that the discovery
made was a relevant and material discovery which proceeded in
pursuance of the information supplied by the accused in the custody. How
the prosecution proved it, is to be judged by the Court but if the Court finds
the fact of such information having been given by the accused in custody is
credible and acceptable even in the absence of the recorded statement
and in pursuance of that information some material discovery has been
11
effected then the aspect of discovery will not suffer from any vice and can
be acted upon. Immediately after the apprehension of the appellant he
spilled the information. In pursuance of that information the investigating
agency acted with expediency and speed which in the circumstances then
prevailing was extremely necessary nay compulsory. Any investigating
agency in such sensational matter was expected not to waste its time in
writing down the Panchnama and memorandum. Instead they had to be
on a damage control mode. They had a duty to safeguard the interests of
the society also. Therefore, if the investigating agency acted immediately
without wasting its time in writing memoranda of the information given by
the accused, no fault could be found. Ultimately, this timely and quick
action yielded results and indeed a dreaded terrorist was found holed up in
the address supplied by the appellant-accused with sizeable ammunition
and fire arms. We do not, therefore, find any thing wrong with the
discovery even if it is assumed that the information was not “recorded” and
hold that immediately after his apprehension, the accused did give the
information which was known to him alone in pursuance of which a very
material discovery was made. The learned Solicitor General relied on a
reported decision in Suresh Chandra Bahri v. State of Bihar [Cited
supra]. In that case, no discovery statement was recorded by the
investigating officer PW -59 Rajeshwar Singh of the information supplied
by the accused to him. Further, no public witness was examined by the
11
prosecution to support the theory that such an information was given by
the accused to him in pursuance of which some material discovery was
made. This Court, however, in spite of these two alleged defects,
accepted the evidence of discovery against the accused on the basis of
the evidence of Rajeshwar Singh PW-59. The Court mentions:
“It is true that no disclosure statement of Gurbachan
Singh who is said to have given information about the
dumping of the dead body under the hillock of Khad
gaddha dumping gfdound was recorded but there is
positive statement of Rajeshwar Singh, PW 59, Station
House Officer of Chutia Police Station who deposed
that during the course of investigation Gurbachan Singh
Led hhim to Khad Gaddha hillock along with an
Inspector Rangnath Singh and on pointing out the place
by Gurbachan Singh he got that place unearthed by
labourers where a piece of blanket, pieces of saree and
rassi were found which were seized as per seizure
memo Ext.5. He further deposed that he had taken two
witnesses along with him to the place where these
articles were found. Rajeshwar Singh PW 59 was
cross-examined with regard to the identity of the
witness Nand Kishore who is said to be present at the
time of recovery and seizure of the articles as well as
with regard to the identity of the articles seized vide
paragraphs 18, 21 and 22 of his deposition but it may
be pointed out that no cross-examination was directed
with regard to the disclosure statement made by the
appellant Gurbachan Singh or on the point that he led
the police party and others to the hillock where on hi
pointing out, the place as unearthed where the
aforesaid articles were found and seized. It is true that
no public witness was examined by the prosecution in
this behalf but the evidence of Rajeshwar Singh PW59
does not suffer from any doubt or infirmity with regard to
the seizure of these articles at the instance of the
appellant Gurbachan Singh which on TI Parade were
11
found to be the articles used in wrapping the dead body
of Urshia.”
The court then stated in paragraph 71 that the two essential
requirements of application of Section 27 of Evidence Act are that (1) the
person giving information was accused of any offence; and (2) he must
also be in police custody. The Court then went on to hold that the
provisions of Section 27 of the Evidence Act are based on the view that if
the fact is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information is true and consequently
the said information can safely be allowed to be given in evidence because
if such an information is further fortified and confirmed by the discovery of
articles or the instrument of crime and which leads to the belief that the
information about the confession made as to the articles of crime cannot
be false. This is precisely what has happened in the present case. Indeed,
the appellant was accused of an offence and he was also in the police
custody. We have already explained the ramifications of the term “being in
custody”. This judgment was then followed in Vikram Singh & Ors v.
State of Punjab [2010 (3) SCC 56] when again the Court reiterated that
there was no need of a formal arrest for the applicability of Section 27.
The Court therein took the stock of the case law on the subject and quoted
from the decision of State of U.P. v. Deoman Upadhyaya [AIR 1960 SC
11
1125] regarding the principles involved in Sections 24 to 30, Evidence Act
and more particularly Sections 25, 26 and 27 of the Evidence Act. The
Court ultimately held in case of Deoman Upadhyay (cited supra) that the
expression `accused of any offence’ in Section 27 as in Section 25 is also
descriptive of the person concerned i.e. against a person who is accused
of an offence. Section 27 renders provable certain statements made by
him while he was in the custody of a police officer. Section 27 is founded
on the principle that even though the evidence relating to the confessional
or other statements made by a person while he is in the custody of the
police officer, is tainted and, therefore, inadmissible if the truth of the
information given by him is assured by the discovery of a fact, it may be
presumed to be untainted and, therefore, declared provable insofar as it
distinctly relates to the fact thereby discovered. The Court also pointed out
the distinction between Sections 27 and 26, Evidence Act in para 40 of the
judgment of Vikaram Singh (cited supra). The Court came to the
conclusion that the principle that Section 27 would be provable only after
the formal arrest under Section 46 (1) of the Code could not be accepted.
It may be mentioned here that even in the decision in State (NCT of Delhi)
v. Navjot Sandhu @ Afsan Guru [2005 (11) SCC 600] relying on the
celebrated decision of Pulukuri Kottaya v. King Emperor [AIR 1947 PC
67], the Court held “we are of the view that Pulukuri Kottaya (cited
supra) case is an authority for the proposition that ‘discovery of fact’
11
cannot be equated to the object produced or found. It is more than that.
The discovery of fact arises by reason of the fact that the information given
by the accused exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place”. This is precisely what
has happened in this case. It is only because of the discovery made by
the appellant that Abu Shamal with the arms and ammunition was found at
the address disclosed by the appellant.
70. Ms. Kamini Jaiswal, learned counsel appearing for the appellant also
severely attacked the discovery made and recorded on the morning of
26.12.2000. By that discovery, the appellant had given the information
about the whole plot, with which we are not concerned, but in addition to
that, he had showed his readiness to point out the AK-56 rifle which was
thrown immediately after the attack, behind the Red Fort. In pursuance of
that, the appellant proceeded alongwith the investigating party and then
from the spot that he had shown, AK-56 rifle was actually found. Even a
bandolier was found containing hand grenades. The learned counsel
argued that this was a farcical discovery and could not be attributed to the
appellant, as in fact, immediately after the attack on 22.12.2000, the police
party had covered the whole area not only during the darkness of the night
on 22.12.2000, but also in the following morning. She pointed out that
sniffer dogs were also used at that time for searching the suspected
11
terrorists either hiding out or leaving any trace. From this, the learned
counsel argued that it is impossible that the investigating agency could not
have seen the said rifle and it was impossible that such an important article
like AK-56 rifle and bandolier would go unnoticed by the investigating
agency. She, therefore pointed out that this was nothing but a poor
attempt on the part of the investigating agency to plant the rifle and to
attribute the knowledge of that rifle falsely to the appellant. In the earlier
part of the judgment, we have already discussed the evidence regarding
this discovery where we have referred to the evidence of Inspector Hawa
Singh (PW-228), S.I. Satyajit Sarin (PW-218) and SHO Roop Lal (PW-
234), who all supported the discovery. This discovery was recorded vide
Exhibit PW-148/E. S.I. Satyajit Sarin (PW-218) corroborated the evidence
of Inspector Hawa Singh (PW-228) and prepared a seizure memo (Exhibit
PW-218). S.I. Amardeep Sehgal (PW-227) also corroborated the version
given by Inspector Hawa Singh (PW-228) and S.I. Satyajit Sarin (PW-218).
Two other witnesses, namely, S.K. Chadha (PW-125) and N.B. Bardhan
(PW-202) were also present who inspected the AK-56 rifle found at the
instance of the appellant. The learned counsel pointed out that if the
sniffer dogs were taken there for searching, it would be impossible that the
investigating agency would not find the AK-56 rifle which was lying quite
near to the spot from where the chit and the currency notes were picked up
by the investigating agency. In the first place, there is definite evidence on
11
record that the sniffer dogs were not taken to the spot from where the
polythene packet containing chit and currency notes was recovered.
Inspector Hawa Singh (PW-228) is the witness who specifically spoke
about the dog squad not having been taken to that spot. We are not
impressed by this argument that the investigating agency had already seen
the said rifle but had chosen to plant it against the appellant. Even the
evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was
not taken to the back of the Red Fort. SHO Roop Lal (PW-234) also stated
that the Sunday Bazar was also not allowed to be held on 22.12.2000. We
have no reason to discard this evidence. That apart, we do not see any
reason why the investigating agency would plant the aforementioned AK-
56 rifle, bandolier and hand grenades therein, without any rhyme or
reason. True, they were interested in the investigation, but that does not
mean that they were out to falsely implicate the appellant. This is apart
from the fact that police officers could not have procured a foreign made
AK-56 rifle and the foreign made grenades on their own to be foisted
against the appellant. No such cross-examination appears to have been
done on those police officers. It is also difficult to accept the argument that
anybody could have found the rifle which was lying in the thick bushes.
There is evidence on record that the backside of the Red Fort had
substantially thick bushes. Once the police officers had found the chit and
the currency notes which gave them a definite direction to proceed in their
11
investigation, it was not likely that the police officers would visit that spot
again and that is what had happened. We are also of the opinion that this
discovery was fully proved, in that, the appellant had given the information
that it was Abu Shamal @ Faisal who had thrown that rifle in his bid to
escape from the spot where the bloody drama was performed, resulting in
death of three persons. Even earlier to this discovery, Abu Shamal @
Faisal was eliminated in encounter and he was found with substantial
quantity of firearm and ammunition. We, therefore, see no reason to
accept the defence contention that this discovery was a fake discovery.
71. Insofar as third discovery was concerned, it was of the hand
grenades, which the appellant discovered on 1.1.2001. The learned
counsel did not even attempt to say that there was anything unnatural with
this recovery except that the appellant was all through in the custody and
could have been treated roughly for effecting this discovery of the
grenades. There is nothing to support this version. Thus, the discovery
statements attributed to the appellant and the material discovered in
pursuance thereof would fully show the truth that the appellant was
involved in the whole affair. The discovery of hand grenades behind the
computer centre near Jamia Millia Islamia University was very significant.
So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the
Hawala dealer, as also the documents discovered therefrom, show the
11
involvement of the appellant in the whole affair. In this behalf, we fully
endorse the finding of the High Court. About these discoveries, one
another complaint by the learned defence counsel was that no public
witnesses were associated. In fact, there is ample evidence on record to
suggest that though the investigating agency made the effort, nobody
came forward. This was all the more so, particularly in case of the
recovery of pistol from the appellant as also the discoveries vide Exhibit
PW-148/E.
72. We have seen the evidence as also the so-called explanations given
by the appellant in his statement under Section 313 Cr.P.C. We are of the
clear opinion that the detailed statement which he gave at the end of the
examination was a myth and remained totally unsubstantiated. We have
also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and
we are of the clear opinion that even that evidence has no legs to stand.
Ms. Qamar Farukhi (DW-1) spoke about the marriage of her daughter
Rehmana Yusuf Farukhi to the appellant. She deposed that the appellant
had expressed his desire to marry Rehmana after reading the matrimonial
advertisement. She asserted that her relatives contributed for the
marriage and she had continued giving her money to Rehmana. There is
nothing much in her cross-examination either. She admitted that moneys
were paid into the account of Rehmana. She admitted that it was told to
12
the appellant that Rehmana was suffering from Spinal Cord problem and
was not fit for consummation of marriage. It is really strange that inspite of
this, the appellant should have got married to Rehmana. Very strangely,
the lady completely denied that she even knew that the appellant was a
resident of Pakistan. Much importance, therefore, cannot be given to this
defence witness. The High Court has held proved the following
circumstances against the appellant:-
“(a) On the night of 22-12-2000 there was an incident of firing
inside the Lal Quila when some intruders had managed to
enter that area of Lal Quila where the Unit of 7 Rajputana
Rifles of Indian Army was stationed.
(b) In that incident of shooting the intruders had fired
indiscriminately from their AK-56 rifles as a result of which
three army jawans received fire-arm injuries and lost their
lives.
(c) The death of three army jawans was homicidal. (d) Immediately after the quick reaction team of the army firedback upon the intruders as a result of which the intruders
escaped from the place of occurrence by scaling over the rear
side boundary wall of Lal Quila towards the Ring Road side
and when the place of occurrence was searched by the
armymen many assault rifle fired cartridge cases were
recovered from the place of occurrence.
(e) Immediately after the intruders who had resorted to firing
inside the army camp had escaped from there calls were
made by someone on the telephones of two BBC
Correspondents one of whom was stationed at Sri Nagar and
the other one was stationed at Delhi office of BBC and the
caller had informed them about the shooting incident inside
the Lal Quila and had also claimed the responsibility of that
incident and that that was the job of Lashkar-E-Toiba, which
12
the prosecution claims to be a banned militant organization
indulging in acts of terrorism in our country.
(f) On the morning of 23-12-2000 one AK-56 rifle was recovered
from a place near Vijay Ghat on the Ring Road behind the Lal
Quila.
(g) On 23-12-2000 when the policemen conducted search around
the Lal Quila in the hope of getting some clue about the
culprits they found one piece of paper lying outside the Lal
Quila near the rear side boundary wall towards Ring Road
side and on that piece of paper one mobile phone number
9811278510 was written.
(h) The mobile phone number 9811278510 was used for making
calls to the two BBC correspondents(PWs 39 and 41)
immediately after the shooting incident inside Lal Quila and
the caller had claimed the responsibility for that incident and
had informed them that the incident was the job of Lashkar-e-
Toiba.
(i) The aforesaid mobile phone number found written on a piece
of paper lying behind the Lal Quila had led the police up to flat
no. 308-A Ghazipur, New Delhi where accused Mohd. Arif @
Ashfaq was found to be living and when on being suspected of
being involved in the shooting incident he was apprehended
on the night of 25/26-12-2000 one pistol and some live
cartridges were recovered from his possession for which he
did not have any license.
(j) At the time of his arrest in case FIR No. 688/2000 one mobile
phone having the number 9811278510 was recovered from
his possession and it was the same mobile number from
which calls had been made to the two BBC correspondents for
informing them about the incident and Lashkar-e-Toiba being
responsible for that incident.
(k) Immediately after his apprehension accused Mohd. Arif @
Ashfaq admitted his involvement in the shooting incident
inside Lal Quila and also disclosed to the police about his
another hide-out at G-73, Batla House, Muradi Road, Okhla,
New Delhi and pursuant to his disclosure the police had gone
to that hide-out where the occupant of that house started firing
12
upon the police team and when the police team returned the
firing that person, who was later on identified by accused
Mohd. Arif @ Ashfaq to be one Abu Shamal @ Faizal, died
because of the firing resorted to by the policemen. From
house no. G-73, where the encounter had taken place, one
AK-56 rifle and some live cartridges and hand grenades were
recovered.
(l) Accused Mohd. Arif @ Ashfaq while in police custody had also
disclosed to the police that one assault rifle had been thrown
near Vijay Ghat after the incident. The police had already
recovered one AK-56 rifle from Vijay Ghat on the morning of
23-12-2000. Accused Mohd. Arif @ Ashfaq had thus the
knowledge about the availability of that AK-56 rifle at Vijay
Ghat.
(m) Accused Mohd. Arif @ Ashfaq had also got recovered one
AK-56 rifle and some ammunition from behind the Lal Quila on
26-12-2000.
(n) Accused Mohd. Arif @ Ashfaq had also got recovered three
hand grenades from some place behind his computer centre
in Okhla on 1-1-2001 pursuant to his another disclosure
statement made by him while in police custody.
(o) When the assault rifle fired cartridge cases which were
recovered from the place of occurrence by the armymen after
the intruders had escaped from there were examined by the
ballistic expert along with the AK-56 rifle which was recovered
at the instance of accused Mohd. Arif @ Ashfaq from behind
the Lal Quila on 26-12-2000 and the AK-56 rifle which was
recovered from Vijay Ghat on 23-12-2000 it was found by the
ballistic expert(PW-202) that some of the assault rifle fired
cartridge cases had been fired from the rifle recovered from
behind Red Fort and some had been fired from the other rifle
which was recovered from Vijay Ghat.
(p) Appellant – accused Mohd. Arif @ Ashfaq was a Pakistan
national and had entered the Indian territory illegally.
(q) After making illegal entry into India appellant – accused Mohd.
Arif @ Ashfaq had been representing to the people coming in
his contact during his stays at different places that he was a
12
resident of Jammu and was doing the business of shawls
while, in fact, he had no such business and he had been
collecting money through hawala channels.
(r) Accused Mohd. Arif @ Ashfaq had obtained a forged ration
card Ex. PW-164/A wherein not only his house number
mentioned was not his correct address but even the name of
his wife shown therein was not Rehmana Yusuf Faukhi. He
had also forged his learner driving license Ex. PW-13/C as
well as one document Ex. PW-13/E purporting to be a
photocopy of another ration card in his name with his
residential address of Ghaziabad where he admittedly never
resided and he submitted that document with a the Ghaziabad
Transport Authority for obtaining permanent driving license. In
the learner driving license also he had shown his residential
addresses where he had never actually resided. All that he did
was to conceal his real identity as a militant having entered
the Indian territory with the object of spreading terror with the
help of his other associate militants whom unfortunately the
police could not apprehend and some expired before they
could be tried.”
73. In addition to these circumstances, there is another circumstance
that a message was intercepted by the BSF while Exhibit PW 162/A and
proved by PW-162 Inspector J.S. Chauhan dated 26.12.2000 wherein
there was a specific reference to the accused. Still another circumstance
would be that the accused had no ostensible means of livelihood and yet
he deposited Rs.29,50,000/- in three accounts, namely, Standard
Chartered Grindlays Bank, Connaught Place (known as ANZ Grindlays
Bank) bearing account No.32263962 of M/s. Nazir & Sons, Standard
Chartered Grindlays Bank bearing account No.28552609 of Bilal Ahmad
Kawa and Standard Chartered Bank bearing account No.32181669 of
Farooq Ahmed Qasid and also deposited some amounts in the account of
12
Rehmana Yusuf Faruqi and he had no explanation of these huge amounts,
their source or their distribution. Lastly, the appellant gave a fanciful and a
completely false explanation about his entering in India and his being a
member of RAW and thereby, his having interacted with Nain Singh (PW-
20).
74. We are in complete agreement with the findings regarding the
incriminating circumstances as recorded by the High Court. On the basis
of the aforementioned circumstances, the High Court came to the
conclusion that the appellant was responsible for the incident of shooting
inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted
in the death of three soldiers of Army. It has also been held by the High
Court that this was a result of well planned conspiracy between the
appellant and some other militants including deceased Abu Shamal @
faizal who was killed in an encounter with the police at House No. G-73,
Batla House, Muradi Road, Okhla, New Delhi. The High Court has also
deduced that it was at the instance of the appellant that the police could
reach that spot. The High Court has further come to the conclusion that it
was in a systematic manner that the appellant came to India illegally and
collected highly sophisticated arms and ammunition meant for mass
destruction. The High Court further held that he chose to select the Red
Fort for an assault alongwith his other associates, the Red Fort being a
12
place of national importance for India. The High Court has also recorded a
finding that the chosen attack was on the Army Camp which was stationed
there to protect this monument of national importance. The High Court
has, therefore, deduced that it was an act of waging war against the
Government of India. It is further held that the associates, with whom the
appellant had entered into conspiracy, had attacked the Army Camp,
which suggests that there was a conspiracy to wage war against the
Government of India, particularly, because in that attack, sophisticated
arms like AK-47 and AK-56 rifles and hand grenades were used. The High
Court also took note that this aspect regarding waging war was not even
argued by the learned counsel appearing for defence. It is on this basis
that the appellant was held guilty for the offences punishable under
Sections 120-B, 121-A, 121, IPC, Section 120-B read with Section 302,
IPC and Sections 468/471/474, IPC and also the offences under Sections
186/353/120-B, IPC. He was also held guilty for the offence under Section
14 of the Foreigners Act, since it was proved that the appellant, a
foreigner, had entered the territory of India without obtaining the necessary
permissions and clearance. Similarly, the appellant was also held guilty for
the offences under the Arms Act as well as the Explosive Substances Act
on account of his being found with a pistol and live cartridges.
12
75. The law on the circumstantial evidence is, by now, settled. In
Sharad Birdhichand Sarda Vs. State of Maharashtra [1984 (4) SCC
116], this Court drew out the following test for relying upon the
circumstantial evidence:-
“(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty.
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except the
one to be proved, and
(5) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
The principle of this judgment was thereafter followed in number of
decisions, they being Tanviben Pankaj Kumar Divetia Vs. State of
Gujarat [1997 (7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @
Afsan Guru [2005 (11) SCC 600], Vikram Singh & Ors. Vs. State of
Punjab [2010 (3) SCC 56], Aftab Ahmad Anasari Vs. State of
Uttaranchal [2010 (2) SCC 583] etc. It is to be noted that in the last
12
mentioned decision of Aftab Ahmad Anasari Vs. State of Uttaranchal
(cited supra), the observation made is to the following effect:-
“In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established. Each fact must be
proved individually and only thereafter the Court should consider the
total cumulative effect of all the proved facts, each one of which
reinforces the conclusion of the guilt. If the combined effect of all the
facts taken together is conclusive in establishing the guilt of the
accused, the conviction would be justified even though it may be that
one or more of these facts, by itself/themselves, is/are not decisive.
The circumstances proved should be such as to exclude every
hypothesis except the one sought to be proved. But this does not
mean that before the prosecution case succeeds in a case of
circumstantial evidence alone, it must exclude each and every
hypothesis suggested by the accused, howsoever extravagant and
fanciful it might be. There must be a chain of evidence so far
complete as not to leave any reasonable ground for conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability, the act must have been
done by the accused. Where the various links in a chain are in
themselves complete, then a false plea or a false defence may be
called into aid only to lend assurance to the Court………..”
(Emphasis supplied).
The Court further went on to hold that in applying this principle,
distinction must be made between the facts called primary or basic, on the
one hand, and the inference of facts to be drawn from them, on the other.
The Court further mentioned that:-
“in drawing these inferences or presumptions, the Court must have
regard to the common course of natural events, and to human
conduct and their relations to the facts of the particular case.”
12
To the similar effect are the observations made in Vikram Singh &
Ors. Vs. State of Punjab (cited supra).
76. There can be no dispute that in a case entirely dependent on the
circumstantial evidence, the responsibility of the prosecution is more as
compared to the case where the ocular testimony or the direct evidence,
as the case may be, is available. The Court, before relying on the
circumstantial evidence and convicting the accused thereby has to satisfy
itself completely that there is no other inference consistent with the
innocence of the accused possible nor is there any plausible explanation.
The Court must, therefore, make up its mind about the inferences to be
drawn from each proved circumstance and should also consider the
cumulative effect thereof. In doing this, the Court has to satisfy its
conscience that it is not proceeding on the imaginary inferences or its
prejudices and that there could be no other inference possible excepting
the guilt on the part of the accused. We respectfully agree with the
principles drawn in the above mentioned cases and hold that the
prosecution was successful in establishing the above mentioned
circumstances against the appellant, individually, as well as, cumulatively.
There indeed cannot be a universal test applicable commonly to all the
situations for reaching an inference that the accused is guilty on the basis
of the proved circumstances against him nor could there be any
12
quantitative test made applicable. At times, there may be only a few
circumstances available to reach a conclusion of the guilt on the part of the
accused and at times, even if there are large numbers of circumstances
proved, they may not be enough to reach the conclusion of guilt on the part
of the accused. It is the quality of each individual circumstance that is
material and that would essentially depend upon the quality of evidence.
Fanciful imagination in such cases has no place. Clear and irrefutable
logic would be an essential factor in arriving at the verdict of guilt on the
basis of the proved circumstances. In our opinion, the present case is
such, as would pass all the tests so far devised by this Court in the realm
of criminal jurisprudence.
77. However, we must, at this stage, take note of the argument raised by
the learned counsel for the defence that the appellant has suffered a
prejudice on account of his being a Pakistani national. The learned
counsel contended that on account of his foreign nationality and in
particular that of Pakistan, the whole investigating agency as well as the
Courts below have viewed his role with jaundiced eyes. The learned
counsel pointed out that all the other accused who were acquitted did not
have foreign nationality. We must immediately note that the criticism is
entirely misplaced, both against the investigating agency and the Courts
below. The investigation in this case was both scientific and fair
13
investigation. This was one of the most difficult cases to be investigated
as there could have been no clue available to the investigating agency.
The small thread which became available to the investigating agency was
the chit found alongwith some Indian currency at the back of the Red Fort
wall in a polythene packet. We must pay compliments to the Investigating
Officer S.K. Sand (PW-230) as also to all the other associated with the
investigation for being objective and methodical in their approach. It has to
be borne in mind that not a single incidence of ill-treatment to the appellant
was reported or proved. Again, the timely recording of the D.D. Entries,
scientific investigation using the computer, the depth of investigation and
the ability of the investigating agency to reach the very basis of each
aspect lend complete credibility to the fairness of the investigation. We,
therefore, reject this argument insofar as the investigating agency is
concerned. Similar is the role played by the trial and the appellate Courts.
It could not be distantly imagined that the Courts below bore any prejudice.
The trial held before the trial Judge was the epitome of fairness, where
every opportunity was given to the accused persons and more particularly,
to the present appellant. Similarly, the High Court was also very fair in
giving all the possible latitude, in giving patient hearing to this accused
(appellant). The records of the trial and the appellate Courts truly justify
these inferences. We, therefore, reject this argument of the learned
defence counsel.
13
78. It was then argued that there could be no conviction for the
conspiracy in the absence of conviction of any other accused for that
purpose. The argument is per se incorrect. It is true that out of the original
22 accused persons, ultimately upto this level, it is only the present
appellant who stands convicted. We must, however, point out that as
many as 8 accused persons against whom the investigating agency filed a
chargesheet are found to be absconding. The Investigating Officer had
collected ample material during the investigation against these 8 accused
persons who were (1) Sabir @ Sabarulla @ Afgani (A-12), Sher Zaman
Afgani S/o Mohd. Raza (A-13), Abu Haider (A-14), Abu Shukher (A-15),
Abu Saad (A-16), Zahur Ahmad Qasid S/o Gulam Mohd. Qasid (A-17),
Bilal Ahmad Kawa S/o Ali Mohd. Kawa (A-18) and Athruddin @ Athar Ali
@ Salim @ Abdulla S/o Ahmuddin (A-19). Besides these absconding
accused persons, 3 others were Abu Bilal (A-20), Abu Shamal (A-21) and
Abu Suffian (A-22). All these three persons were already dead when the
chargesheet was filed against them. The charge of conspiracy was
against all the accused persons. The conspiracy also included the dead
accused Abu Shamal who was found to be hiding and who was later killed
in exchange of fire with the police. The whereabouts of Abu Shamal were
known only due to the discovery statement by the appellant, in which a
very clear role was attributed to Abu Shamal, who was also a part of the
team having entered the Red Fort and having taken part in the firing and
13
killing of three soldiers. It has also come in the evidence that the other
accused who was absconding in the present case, namely, Abu Bilal (A-
20), was killed in exchange of fire with police in 2002 near Humayun’s
Tomb. It is to be remembered that the negative of the photograph of Abu
Bilal (A-20) was seized at the time of arrest of the appellant, from his
wallet. Indeed, the act of firing at the Army was not by a single person.
The learned Solicitor General, therefore, rightly submitted that the case of
the prosecution that there was a conspiracy to attack the Red Fort and kill
innocent persons, was not affected even if the other accused persons who
were alleged to have facilitated and helped the appellant, were acquitted.
The question of a single person being convicted for an offence of
conspiracy was considered in Bimbadhar Pradhan Vs. The State of
Orissa [AIR 1956 SC 469]. Paragraph 14 thereof is relevant for us, which
is as follows:-
“14. Another contention raised on behalf of the appellant was that
the other accused having been acquitted by the trial court, the
appellant should not have been convicted because the
evidence against all of them was the same. There would have
been a great deal of force in this argument, not as a question
of principle but as a matter of prudence if we were satisfied
that the acquittal of the other four accused persons was
entirely correct. In this connection the observations of this
Court in the case of Dalip Singh v. State of Punjab [1954] (1)
SCR 145, and of the Federal Court in Kapildeo Singh v. The
King [1949] F.C.R. 834, are relevant. It is not essential that
more than one person should be convicted of the offence of
criminal conspiracy. It is enough if the court is in a position to
find that two or more persons were actually concerned in the
13
criminal conspiracy. If the courts below had come to the
distinct finding that the evidence led on behalf of the
prosecution was unreliable, then certainly no conviction could
have been based on such evidence and all the accused would
have been equally entitled to acquittal. But that is not the
position in this case as we read the judgments of the courts
below.”
The learned Solicitor General also relied on the decision in State of
Himachal Pradesh Vs. Krishna Lal Pradhan [1987 (2) SCC 17] and
cited the observations to the effect that the offence of criminal conspiracy
consists in a meeting of minds of two or more persons for agreeing to do or
causing to be done an illegal act by illegal means, and the performance of
an act in terms thereof. It is further observed:-
“If pursuant to the criminal conspiracy the conspirators commit
several offences, then all of them will be liable for the offences
even if some of them had not actively participated in the
commission of the offences.”
The learned Solicitor General further relied on the decision in State
through Superintendent of Police, CBI/SIT Vs. Nalini & Ors. [1999 (5)
SCC 253], wherein in paragraph 662, the following observations were
made:-
“In reaching the stage of meeting of minds, two or more
persons share information about doing an illegal act or a legal
act by illegal means. This is the first stage where each is said
to have knowledge of a plan for committing an illegal act or a
legal act by illegal means. Among those sharing the
information some or all may performance intention to do an
illegal act or a legal act by illegal means. Those who do form
the requisite intention would be parties to the agreement and
13
would be conspirators but those who drop out cannot be roped
in as collaborators on the basis of mere knowledge unless
they commit acts or omissions from which a guilty common
intention can be inferred. It is not necessary that all the
conspirators should participate from inception to the end of the
conspiracy; some may join the conspiracy after the time when
such intention was first entertained by any one of them and
some others may quit from the conspiracy. All of them cannot
but be treated as conspirators. Where in pursuance of the
agreement the conspirators commit offences individually or
adopt illegal means to do a legal act which has a nexus to the
object of conspiracy, all of them will be liable for such offences
even if some of them have not actively participated in the
commission of those offences.”
Again in Firozuddin Basheeruddin & Ors. Vs. State of Kerala
[2001 (7) SCC 596], while stating the principles of conspiracy, the Court
observed as follows:-
“Conspiracy is not only a substantive crime. It also serves as a
basis for holding one person liable for the crimes of others in
cases where application of the usual doctrines of complicity
would not render that person liable. Thus, one who enters into
a conspiratorial relationship is liable for every reasonably
foreseeable crime committed by every other member of the
conspiracy in furtherance of its objectives, whether or not he
knew of the crimes or aided in their commission. The rationale
is that criminal acts done in furtherance of a conspiracy may
be sufficiently dependent upon the encouragement and
support of the group as a whole to warrant treating each
member as a casual agent to each act. Under this view, which
of the conspirators committed the substantive offence would
be less significant in determining the defendant’s liability than
the fact that the crime was performed as a part of a larger
division of labor to which the accused had also contributed his
efforts.
Regarding admissibility of evidence, loosened
standards prevail in a conspiracy trial. Contrary to the usual
rule, in conspiracy prosecutions a declaration by one
13
conspirator, made in furtherance of a conspiracy and during its
pendency, is admissible against each co-conspirator. Despite
the unreliability of hearsay evidence, it is admissible in
conspiracy prosecutions. Explaining this rule, Judge Hand
said:
“Such declarations are admitted upon no doctrine of the
law of evidence, but of the substantive law of crime.
When men enter into an agreement for an unlawful end,
they become ad hoc agents for one another, and have
made ‘a partnership in crime’. what one does pursuant
to their common purpose, all do, and as declarations
may be such acts, they are competent against all (Van
Riper v. United States 13 F.2d 961, 967, (2d Cir. 1926).”
Thus conspirators are liable on an agency theory for
statements of co-conspirators, just as they are for the overt
acts and crimes committed by their confreres.”
Our attention was also invited to the observations made in Yashpal
Mittal Vs. State of Punjab [1977 (4) SCC 540] at page 543. The
observations are to the following effect:-
“The offence of criminal conspiracy under Section 120A is a
distinct offence introduced for the first time in 1913 in Chapter
VA of the Penal Code. The very agreement, concert or league
is the ingredient of the offence. It is not necessary that all the
conspirators must know each and every detail of the
conspiracy as long as they are co-participators in the main
object of the conspiracy. There may be so many devices and
techniques adopted to achieve the common goal of the
conspiracy and there may be division of performances in the
chain of actions with one object to achieve the real end of
which every collaborator must be aware and in which each
one of them must be interested. There must be unity of object
or purpose but there may be plurality of means sometimes
even unknown to one another, amongst the conspiratOrs. In
achieving the goal several offences, may be committed by
some of the conspirators even unknown to the others. The
only relevant factor is that all means adopted and illegal acts
13
done must be and purported to be in furtherance of the object
of the conspiracy even though there may be sometimes
misfire or over-shooting by some of the conspirators. Even if
some steps are resorted to by one or two of the conspirators
without the knowledge of the others it will not affect the
culpability of those others when they are associated with the
object of the conspiracy. The significance of criminal
conspiracy under Section 120A is brought out pithily by this
Court in Major B. G. Darsay v. The State of Bombay: 1961
CriLJ 828 . thus:
The gist of the offences is an agreement to break the
law. The parties to such an agreement will be guilty of
criminal conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an ingredient
of the offence that all the parties should agree to dc a
single illegal act. It may comprise the commission of a
number of acts. under Section 43 of the Indian Penal
Code, an act would be illegal if it is an offence or if it is
prohibited by law. Under the first charge the accused
are charged with have conspired to do three categories
of illegal acts and the mere fact that all of them could
not be convicted separately in respect of each of the
offences has no relevancy in considering the question
whether the ‘- offence of conspiracy has been
committed. They ate all guilty of the offence of
conspiracy to do illegal acts, though for individual
offences all of them may not be liable.
We are in respectful agreement with the above
observations with regard to the offence of criminal conspiracy.
The main object of the criminal conspiracy in the first
charge is undoubtedly cheating by personation. The other
means adopted, inter alia, are preparation or causing to be
prepared spurious passports; forging or causing to be forged
entries and endorsements in that connection; and use of or
causing to be used forged passports as genuine in order to
facilitate travel of persons abroad. The final object of the
conspiracy in the first charge being the offence of cheating by
personation and we find, the other offence described therein
are steps, albeit, offences themselves, in aid of the ultimate
crime. The charge does not connote plurality of objects of the
13
conspiracy. That the appellant himself is not charged with the
ultimate offence, which is the object of the criminal conspiracy,
is beside the point in a charge under Section 120B IPC as long
as he is a party to the conspiracy with the end in view.
Whether the charges will be ultimately established against the
accused is a completely different matter within the domain of
the trial court.”
The learned Solicitor General also invited our attention to the
decision rendered in Ajay Agarwal Vs. Union of India & Ors. [1993 (3)
SCC 609], wherein the following observations were made in paragraphs 8
and 24:-
“8. …… In Chapter VA, conspiracy was brought on statute
by the Amendment Act, 1913 (8 of 1913). Section 120-A
of the I.P.C. defines ‘conspiracy’ to mean that when two
or more persons agree to do, or cause to be done an
illegal act, or an act which is not illegal by illegal means,
such an agreement is designated as “criminal
conspiracy. No agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy, unless some act besides the agreement is
done by one or more parties to such agreement in
furtherance thereof. Section 120-B of the I.P.C.
prescribes punishment for criminal conspiracy. It is not
necessary that each conspirator must know all the
details of the scheme nor be a participant at every
stage. It is necessary that they should agree for design
or object of the conspiracy. Conspiracy is conceived as
having three elements: (1) agreement (2) between two
or more persons by whom the agreement is effected;
and (3) a criminal object, which may be either the
ultimate aim of the agreement, or may constitute the
means, or one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in
the ultimate objects. The common law definition of
‘criminal conspiracy’ was stated first by Lord Denman in
Jones’ case (1832 B & AD 345) that an indictment for
conspiracy must “charge a conspiracy to do an unlawful
13
act by unlawful means” and was elaborated by Willies,
J. on behalf of the Judges while referring the question to
the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L.
306 and the House of Lords in unanimous decision
reiterated in Quinn v. Leathem 1901 AC 495 as under:
`A conspiracy consists not merely in the intention
of two or more, but in the agreement of two or
more to do an unlawful act, or to do a lawful act
by unlawful means. So long as such a design
rests in intention only it is not indictable. When
two agree to carry it into effect, the very plot is an
act in itself, and the act of each of the parties,
promise against promise, actus contra actum,
capable of being enforced, if lawful, punishable of
for a criminal object or for the use of criminal
means. (emphasis supplied)’
24. A conspiracy thus, is a continuing offence and continues
to subsist and committed wherever one of the
conspirators does an act or series of acts. So long as its
performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or
necessity. A crime is complete as soon as the
agreement is made, but it is not a thing of the moment.
It does not end with the making of the agreement. It will
continue so long as there are two or more parties to it
intending to carry into effect the design. Its continuance
is a threat to the society against which it was aimed at
and would be dealt with as soon as that jurisdiction can
properly claim the power to do so. The conspiracy
designed or agreed abroad will have the same effect as
in India, when part of the acts, pursuant to the
agreement are agreed to be finalized or done,
attempted or even frustrated and vice versa.”
Further in Nazir Khan & Ors. Vs. State of Delhi [2003 (8) SCC
461], the Court observed as under:-
13
“16. In Halsbury’s Laws of England (vide 4th Ed. Vol. 11,
page 44, page 58), the English Law as to conspiracy
has been stated thus:
“Conspiracy consists in the agreement of two or
more persons to do an unlawful act, or to do a
lawful act by unlawful means. It is an indication
offence at common law, the punishment for which
is imprisonment or fine or both in the discretion of
the Court.
The essence of the offence of conspiracy is
the fact of combination by agreement. The
agreement may be express or implied, or in part
express and in part implied. The conspiracy
arises and the offence is committed as soon as
the agreement is made; and the offence
continues to be committed so long as the
combination persists, that is until the
conspiratorial agreement is terminated by
completion of its performance or by abandonment
or frustration or however, it may be. The actus
rues in a conspiracy is the agreement to execute
the illegal conduct, not the execution of it. It is not
enough that two or more persons pursued the
same unlawful object at the same time or in the
same place; it is necessary to show a meeting of
minds, a consensus to effect an unlawful
purpose. It is not, however, necessary that each
conspirator should have been in communication
with every other.”
17. There is no difference between the mode of proof of the
offence of conspiracy and that of any other offence, it
can be established by direct or circumstantial evidence.
(See: Bhagwan Swarup Lal Bishan Lal etc.etc. v. State
of Maharashtra AIR 1965 SC 682
18. Privacy and secrecy are more characteristics of a
conspiracy, than of a loud discussion in an elevated
place open to public view. Direct evidence in proof of a
conspiracy is seldom available, offence of conspiracy
can be proved by either direct or circumstantial
14
evidence. It is not always possible to give affirmative
evidence about the date of the formation of the criminal
conspiracy, about the persons who took part in the
formation of the conspiracy, about the object, which the
objectors set before themselves as the object of
conspiracy, and about the manner in which the object of
conspiracy is to be carried out, all this is necessarily a
matter of inference.
19. The provisions of Section 120A and 120B, IPC have
brought the law of conspiracy in India in line with the
English Law by making the overt act unessential when
the conspiracy is to commit any punishable offence. The
English Law on this matter is well settled. Russell on
crime (12 Ed.Vol. I, p.202) may be usefully noted-
“The gist of the offence of conspiracy then lies,
not in doing the act, or effecting the purpose for
which the conspiracy is formed, nor in attempting
to do them, nor in inciting others to do them, but
in the forming of the scheme or agreement
between the parties, agreement is essential. More
knowledge, or even discussion, of the plan is not,
per se, enough.”
Glanville Williams in the “Criminal Law” (Second
Ed. P. 382) states-
“The question arose in an lowa case, but it was
discussed in terms of conspiracy rather than of
accessoryship. D, who had a grievance against P,
told E that if he would whip P someone would pay
his fine. E replied that he did not want anyone to
pay his fine, that he had a grievance of his own
against P and that he would whip him at the first
opportunity. E whipped P. D was acquitted of
conspiracy because there was no agreement for
‘concert of action’, no agreement to ‘co-operate’.”
The learned Solicitor General also referred to the summing up by
Coleridge, J. in R. Vs. Murphy (ER) at page 508.
14
79. Ultimately, the learned Solicitor General relied on the celebrated
decision in State (NCT of Delhi) Vs. Navjot Sandhu [2005 (11) SCC
600]. On this basis, it was urged by the learned Solicitor General that the
circumstances which were found to have been established beyond doubt,
led only to one conclusion that the appellant was responsible for the
incident of shooting inside the Red Fort on the night of 22.12.2000, in
which three Army soldiers were killed. This was nothing but a well planned
conspiracy and the responsibility of this ghastly incident was taken up by
Lashkar-e-Toiba. This was undoubtedly a conspiracy, well planned,
alongwith some other militants including the deceased accused Abu
Shamal who was also killed in the exchange of fire with the police. For this
conspiracy, the appellant illegally entered India and he was receiving huge
amounts of money to make it possible for himself to execute his design. It
is for this purpose that he falsely created and forged number of
documents. The whole idea was to legitimize his stay in India for which he
got prepared a false ration card, a false license and also opened bank
accounts with the false addresses. He had taken adequate care to
conceal his real identity. He described himself as a trader and a resident
of Jammu, which was also a patent falsehood. He went on to the extent of
getting married allegedly on the basis of an advertisement. He also spent
huge amounts without there being any source of money and deposited
lakhs of rupees in some other bank accounts. It may be that those
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persons, in whose accounts he deposited money, might have been
acquitted getting benefit of doubt regarding their complicity, but the fact
remains that the appellant had no explanation to offer. Similarly, barely 14
days prior to the incident, he got married to Rehmana Yusuf Farukhi,
another accused who was acquitted. It may be that Rehmana Yusuf
Farukhi also did not have any idea and, therefore, was granted the benefit
of doubt; however, that does not, in any manner, dilute the nefarious plans
on the part of the appellant. He collected highly sophisticated arms and
ammunition and some arms were proved to have been used in the attack
on the Red Fort. The attack on the soldiers staying in the Army Camp at
Red Fort was nothing but a war waged against the Government of India. It
was clear that there were more than one person. Therefore, it was nothing
but a well planned conspiracy, in which apart from the appellant, some
others were also involved.
80. The learned Solicitor General then urged that the appellant was
rightly convicted for the offences punishable under Sections 120-B, 121-A,
121, IPC, Section 120-B read with Section 302, IPC, Sections
468/471/474, IPC, Sections 186/353/120-B, IPC and Section 14 of the
Foreigners Act.
81. There was no argument addressed before us to the effect that there
was no conspiracy. The only argument advanced was that the appellant
14
alone could not have been convicted for the conspiracy, since all the other
accused were acquitted. We have already stated the principles which
have emerged from various decisions of this Court. Once the prosecution
proves that there was a meeting of minds between two persons to commit
a crime, there would be an emergence of conspiracy. The fact that barely
within minutes of the attack, the BBC correspondents in Srinagar and Delhi
were informed, proves that the attack was not a brainchild of a single
person. The information reached to BBC correspondent at Srinagar and
Delhi sufficiently proves that there was a definite plan and a conspiracy.
Again the role of other militants was very clear from the wireless message
intercepted at the instance of BSF. Unless there was a planning and
participation of more than one persons, all this could never have
happened. For the execution of the nefarious plans, the militants (more
than one in number) entered under the guise of watching Son et Lumiere
show and while doing so, they smuggled arms inside the Red Fort. It is
after the show taking the advantage of the darkness, they started shooting,
in which they first killed the Sentry and then the other two persons who
were the soldiers and then taking further advantage of the darkness, they
scaled over the wall and fled. All this had to be a pre-planned attack for
which the militants must have made a proper reconnaissance, must have
also found out the placements of Army barracks and the escape route from
the backside of the Red Fort. It was not a stray attack of some
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desperados, which was undoubtedly an extremely well-planned attempt to
overawe the Government of India and also to wage war against the
Government of India. It has already been held in Kehar Singh Vs. State
(Delhi Admn.) [AIR 1988 SC 1883] that the evidence as to the
transmission of thoughts sharing the unlawful design would be sufficient for
establishing the conspiracy. Again there must have been some act in
pursuance of the agreement. The offence under Section 121 of conspiring
to wage a war is proved to the hilt against the appellant, for which he has
been rightly held guilty for the offence punishable under Sections 121 and
121-A, IPC. The appellant is also rightly held guilty for the offence
punishable under Section 120-B, IPC read with Section 302, IPC. In the
aforementioned decision of Navjot Singh Sandhu it has been held by this
Court:
“Thus the conspirator, even though he may not have
indulged in the actual criminal operations to execute the
conspiracy, becomes liable for the punishment
prescribed under Section 302, IPC. Either death
sentence or imprisonment for life is the punishment
prescribed under Section 302, IPC.”
In this view, we agree with the verdict of the trial Court as well as the
High Court.
82. No other point was argued before us at the instance of the defence.
That leaves us with the question of punishment. The trial Court awarded
14
the death sentence to the appellant Mohd. Arif @ Ashfaq for the offence
under Section 121 IPC for waging war against the Government of India.
Similarly, he was awarded death sentence for the offence under Section
120B read with Section 302, IPC for committing murder of Naik Ashok
Kumar, Uma Shankar and Abdullah Thakur inside the Red Fort on
22.12.2000. For the purpose of the sentences, the other convictions being
of minor nature are not relevant. On a reference having been made to it,
the High Court ultimately confirmed the death sentence. The High court
also concurred with the finding of the trial Court that this was a rarest of the
rare case. The High Court has observed that the counsel appearing for
him did not highlight any mitigating circumstance justifying the conversion
of death sentence to life imprisonment perhaps because the learned
counsel was conscious of the futility of the submission. The High Court
specifically found that accused had hatched a conspiracy to attack the
Indian Army stationed inside the national monument for protecting it from
any invasion by the terrorists and had executed also that conspiracy with
the help of his other associate militants and in that process they had killed
three army Jawans and more could also have lost their lives but for the
immediate retaliation by the members of the Quick Reaction Team of the
Army. In that view, the High Court concurred with the finding of this being
a rarest of the rare case. The question is whether we should give the
same verdict in respect of the death sentence.
14
83. This was, in our opinion, a unique case where Red Fort, a place of
paramount importance for every Indian heart was attacked where three
Indian soldiers lost their lives. This is a place with glorious history, a place
of great honour for every Indian, a place with which every Indian is
attached emotionally, and a place from where our first Prime Minister
delivered his speech on 15th August, 1947, the day when India broke the
shackles of foreign rule and became a free country. It has since then been
a tradition that every Hon’ble Prime Minister of this country delivers an
address to the nation on every 15th August to commemorate that great
event. This Fort was visualized and constructed by Mughal Emperor
Shahjahan who is known as “Shahjahan the builder”. It took nine years for
its completion. It was here that Shahjahan ascended the Throne on 18th
April, 1648 amidst recitation of sacred Aayates of Holy Quran and mantras
from Hindu scriptures. The great historical monument thereafter saw the
rule of number of Mughal Emperors including Aurangzeb. It also saw its
most unfortunate capture by Nadir Shah. It was in 1837, the last Mughal
Emperor Bahadurshah Zafar II took over the Throne. It must be
remembered that it was during the empire of Bahadurshah Zafar II that the
first war of Independence was fought. The Red Fort became the ultimate
goal during that war of Independence which broke out in the month of May,
1857. The Fort breathed free air for a brief period. But ultimately in the
month of September, 1857, it was captured by the British. Red Fort is not
14
just one of the several magnificent monuments that were built by the
Mughal emperors during their reign for nearly three centuries. It is not just
another place which people from within and outside the country visit to
have a glimpse of the massive walls on which the Fort stands or the
exquisite workmanship it displays. It is not simply a tourist destination in
the capital that draws thousands every year to peep and revel into the
glory of the times by gone. Its importance lies in the fact that it has for
centuries symbolised the seat of power in this country. It has symbolised
the supremacy of the Mughal and the British empires just as it symbolises
after independence the sovereignty of the world’s largest democratic
republic. It is a national symbol that evokes the feelings of nationalism
amongst the countrymen and reminds them of the sacrifices that the
freedom fighters made for the liberation of this country from foreign rule.
No wonder even after the fall of the fort to the British forces in the first war
of independence in 1857 and the shifting of the seat of power from the Red
Fort to the Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru after his
historic “Tryst with Destiny” speech unfurled the tricolor from the ramparts
of the Red Fort on 15th August 1947. That singular event symbolised the
end of the British rule in this country and the birth of an independent India.
An event that is relived and re-acted every succeeding year since 1947,
when every incumbent Prime Minister addresses the nation from atop this
great and historic Fort reminding the countrymen of the importance of
14
freedom, the need for its preservation and the values of constitutional
democracy that guarantees the freedoms so very fundamental to the
preservation of the unity and integrity of this country. An attack on a
symbol that is so deeply entrenched in the national psyche was, therefore,
nothing but an attack on the very essence of the hard earned freedom and
liberty so very dear to the people of this country. An attack on a symbol
like Red Fort was an assault on the nation’s will and resolve to preserve its
integrity and sovereignty at all costs. It was a challenge not only to the
Army battalions stationed inside the monument but the entire nation. It was
a challenge to the very fabric of a secular constitutional democracy this
country has adopted and every thing that is good and dear to our
countrymen. It was a blatant, brazenfaced and audacious act aimed to
over awe the Government of India. It was meant to show that the enemy
could with impunity reach and destroy the very vitals of an institution so
dear to our fellow countrymen for what it signified for them. It is not for no
reason that whosoever comes to Delhi has a yearning to visit the Red Fort.
It is for these reasons that this place has become a place of honour for
Indians. No one can ever forget the glorious moments when the Indians
irrespective of their religions fought their first war of Independence and
shed their blood. It was, therefore, but natural for the foreigner enemies to
plan an attack on the army specially kept to guard this great monument.
This was not only an attack on Red Fort or the army stationed therein, this
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was an arrogant assault on the self respect of this great nation. It was a
well thought out insult offered to question the sovereignty of this great
nation by foreign nationals. Therefore, this case becomes a rarest of rare
case. This was nothing but an undeclared war by some foreign
mercenaries like the present appellant and his other partner in conspiracy
Abu Shamal and some others who either got killed or escaped. In
conspiring to bring about such kind of attack and then carrying out their
nefarious activities in systematic manner to make an attack possible was
nothing but an attempt to question the sovereignty of India. Therefore,
even without any reference to any other case law, we held this case to be
the rarest of rare case. Similar sentiment was expressed by this Court in
State v. Navjot Singh Sandhu [2005 (11) SCC 600]. The Court
expressed its anguish in the following words.
“In the instant case, there can be no doubt that the most
appropriate punishment is death sentence. That is what
has been awarded by the trial Court and the High Court.
The present case, which has no parallel in the history of
Indian Republic, presents us in crystal clear terms, a
spectacle of rarest of rare cases. The very idea of
attacking and overpowering a sovereign democratic
institution by using powerful arms and explosives and
imperiling the safety of a multitude of peoples’
representatives, constitutional functionaries and officials
of Government of India and engaging into a combat with
security forces is a terrorist act of gravest severity. It is a
classic example of rarest of rare cases. This question
of attack on the army and the killing of three soldiers
sent shock waves of indignation throughout the country.
15
We have no doubt that the collective conscience of the
society can be satisfied by capital punishment alone.”
We agree with the sentiments expressed in Navjot Singh Sandhu’s
case (cited supra):
“The challenge to the unity, integrity and sovereignty of
India by these acts of terrorists and conspirators, can
only be compensated by giving the maximum
punishment to the person who is proved to be the
conspirator in this treacherous act.”
84. A conspiracy to attack the Indian Army unit stationed in Red Fort
and the consequent un-provoked attack cannot be described excepting as
waging war against India and there can be no question of compromising
on this issue. The trial Court has relied on number of other cases including
the case of Navjot Singh Sandhu (cited supra) as also the case of State
of Tamil Nadu v. Nalini [AIR 1999 SC 2640]. We do not want to burden
the judgment by quoting from all these cases. However, we must point out
that in Machhi Singh v. State of Punjab’s case [1983 (3) SCC 470] a
principle was culled out that when the collective conscience of the
community is so shocked, that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death penalty, same can
be awarded. The fourth test includes the crime of enormous proportion.
15
For instance when multiple murders say of all or almost all the members of
a family or a large number of persons of a particular caste, community or
locality are committed. Applying both the tests here we feel that this is a
case where the conscience of the community would get shocked and it
would definitely expect the death penalty for the appellant. Three persons
who had nothing to do with the conspirators were killed in this case.
Therefore, even Machhi Singh’s case (cited supra) would aptly apply.
Even in Bachan Singh v. State of Punjab [AIR 1980 SC 898] case, this
Court referred to the penal statutes of States in USA framed after Furman
v. Georgia (1972) 33 L Ed 2d 346: 408 US 238) in general and Clause
2(a),(b), (c) and (d) of the Indian Penal Code (Amendment) Bill duly
passed in 1978 by Rajya Sabha. Following aggravating circumstances
were suggested by the Court in that case as aggravating circumstances:-
“(a) If the murder has been committed after previous
planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police
force or of any public servant and was committed-
(i) while such member or public servant was
on duty; or
(ii) in consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of his
duty as such member or public servant
whether at the time of murder he was such
15
member or public servant, as the case may
be, or had ceased to be such member of
public servant; or
(d) if the murder is of a person who had acted in the
lawful discharge of his duty under S.43 of the
Code of Criminal Procedure, 1973, or who had
rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his
assistance under S.37 and S.129 of the said
Code.”
The Court then observed that there could be no objection to the
acceptance of these indicators. The Court, however, preferred not to fetter
the judicial conscience by attempting to make an exhausting enumeration
one way or the other. The circumstance at “(c)” would be fully covering the
present case since the three soldiers who lost their lives were the
members of the armed forces and Abdullah one of them was actually doing
his Sentry duty though there is no evidence available about as to what duty
the other two were doing. But there is no reason to hold that their murder
was in any manner prompted by any provocation or action on their part.
This would be an additional circumstance according to us which would
justify the death sentence. During the whole debate the learned defence
counsel did not attempt to bring any mitigating circumstance. In fact, this
is a unique case where there is one most aggravating circumstance that it
was a direct attack on the unity, integrity and sovereignty of India by
foreigners. Thus, it was an attack on Mother India. This is apart from the
fact that as many as three persons had lost their lives. The conspirators
15
had no place in India. Appellant was a foreign national and had entered
India without any authorization or even justification. This is apart from the
fact that the appellant built up a conspiracy by practicing deceit and
committing various other offences in furtherance of the conspiracy to wage
war against India as also to commit murders by launching an unprovoked
attack on the soldiers of Indian Army. We, therefore, have no doubts that
death sentence was the only sentence in the peculiar circumstance of this
case. We, therefore, confirm the judgment of the trial Court and the High
Court convicting the accused and awarding death sentence for the
offences under Section 302, IPC. We also confirm all the other sentences
on all other counts and dismiss these appeals.
…………………………J.
[V.S. Sirpurkar]
…………………………J.
[T.S. Thakur]
August 10, 2011;
New Delhi.
