{"id":210489,"date":"2011-08-10T00:00:00","date_gmt":"2011-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-arif-ashfaq-vs-state-of-nct-of-delhi-on-10-august-2011"},"modified":"2017-05-28T12:59:28","modified_gmt":"2017-05-28T07:29:28","slug":"mohd-arif-ashfaq-vs-state-of-nct-of-delhi-on-10-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-arif-ashfaq-vs-state-of-nct-of-delhi-on-10-august-2011","title":{"rendered":"Mohd.Arif @ Ashfaq vs State Of Nct Of Delhi on 10 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohd.Arif @ Ashfaq vs State Of Nct Of Delhi on 10 August, 2011<\/div>\n
Author: V Sirpurkar<\/div>\n
Bench: V.S. Sirpurkar, T.S. Thakur<\/div>\n
                                                         1\n\n\n\n                     IN THE SUPREME COURT OF INDIA\n\n\n                   CRIMINAL APPELLATE JURISDICTION\n\n\n                  CRIMINAL APPEAL NOS. 98-99 OF 2009\n\n\n\n\nMohd. Arif @ Ashfaq                                             ... Appellant\n\n\n                                          Versus\n\n\n\n\nState of NCT of Delhi                                       ... Respondent\n\n\n\n\n                                    J U D G M E N T\n<\/pre>\n
V.S. SIRPURKAR, J.\n<\/p>\n<\/p>\n
1.      The   appellant   (admittedly   a   Pakistani   national)   challenges   his <\/p>\n
concurrent   conviction   by   the   trial   Court   and   the   High   Court   as   also   the <\/p>\n
death sentence awarded to him, in this appeal.\n<\/p>\n<\/p>\n
2.      On 22.12.2000 at about 9 p.m. in the evening some intruders started <\/p>\n
indiscriminate firing and gunned down three army Jawans belonging to 7th <\/p>\n
Rajputana Rifles.   This battalion was placed in Red Fort for its protection <\/p>\n
considering the importance of Red Fort in the history of India.  There was a <\/p>\n
Quick Reaction Team of this battalion which returned the firing towards the <\/p>\n
intruders.   However,   no   intruder   was   killed   and   the   intruders   were <\/p>\n
successful in escaping by scaling over the rear side boundary wall of the <\/p>\n
Red   Fort.     This   attack   rocked   the   whole   nation   generally   and   the   city  of <\/p>\n
                                                2<\/span><\/p>\n
Delhi in particular as Red Fort is very significant in the history which was <\/p>\n
taken   over  by British  Army  way   back  in  1857  and  was  retrieved   back  to <\/p>\n
India   on   15.8.1947.     It   is   also   significant   to   note   that   the   Prime   Minister <\/p>\n
addresses the nation from this very Red Fort on every 15th of August.<\/p>\n
        The   three   unfortunate   soldiers   who   lost   their   lives   in   this   attack <\/p>\n
were:-\n<\/p>\n<\/p>\n
        (i)      A civilian Sentry namely, Abdullah Thakur\n\n\n        (ii) Rifleman (Barber) Uma Shankar\n\n\n        (iii)    Naik Ashok Kumar, who was injured and then succumbed to \n\n\n                 his injuries later on.\n\n\n\n\n<\/pre>\n
3.      The   Red   Fort   comes   within   the   local   jurisdiction   of   Police   Station <\/p>\n
Kotwali.    The  Information  was  recorded by DD  No.19A,  Exhibit  PW-15\/B <\/p>\n
and   Sub-Inspector   (S.I.)   Rajinder   Singh   (PW-137)   rushed   to   the   spot. <\/p>\n
SHO   Roop   Lal   (PW-234)   who   was   the   Station   House   Officer   of   Kotwali <\/p>\n
police   station   also   reached   the   spot   and   recorded   the   statement   of   one <\/p>\n
Capt.   S.P.   Patwardhan   (PW-189)   which   was   treated   as   the   First <\/p>\n
Information Report.  This First Information Report refers to two persons in <\/p>\n
dark clothing and armed with AK 56\/47 rifles having entered the Red Fort <\/p>\n
from the direction of Saleem Garh Gate\/Yamuna Bridge.  It is further stated <\/p>\n
that   first   they   fired   at   the   civilian   Sentry   Abdullah   Thakur,   secondly   they <\/p>\n
came   across   rifleman   (barber)   Uma   Shankar   near   Rajputana   Rifles   MT <\/p>\n
                                                3<\/span><\/p>\n
lines   and   fired   at   him   due   to   which   he   died   on   the   spot.     It   is   further <\/p>\n
mentioned that lastly the intruders ran into the room in the unit lines close <\/p>\n
to   the   office   complex   and   fired   shots   at   Naik   Ashok   Kumar   who   was <\/p>\n
seriously   injured.     The   FIR   further   mentions   that   thereafter   they   ran <\/p>\n
towards   ASI   Museum   complex   and   fired   in   the   direction   of   police   guard <\/p>\n
room located inside the Museum.   At this stage, the quick reaction team <\/p>\n
started firing at them.  However, they escaped into the wooded area close <\/p>\n
to   the   ring   road.     The   FIR   also   mentions   that   some   fired\/unfired <\/p>\n
ammunition was recovered from the spot.\n<\/p>\n<\/p>\n
4.      The   investigation   started   on   this   basis.     During   the   examination   of <\/p>\n
the   spot,   one   live   cartridge   Exhibit   PW-115\/38   and   number   of   cartridge <\/p>\n
cases   (Exhibit   PW-115\/1-37)   and   (Exhibit   PW-189\/32-71),   three <\/p>\n
magazines (Exhibit PW-189\/1-3) of assault rifles, one of which had 28 live <\/p>\n
cartridges (Exhibit PW-189\/4-31) were found and handed over to the police <\/p>\n
vide memo Exhibit PW-189\/C and Exhibit PW-115\/A.   The empties of the <\/p>\n
cartridges fired by the Quick Reaction Team through the self loading rifles <\/p>\n
were   deposited   with   ammunition   store   of   7   Rajputana   rifles   and   were <\/p>\n
handed over to the police later on vide memo Exhibit PW-131\/C.<\/p>\n
5.      On   the   next   day,   i.e.   on   23.12.2000,   in   the   morning   at  about  8.10 <\/p>\n
a.m.,  the BBC  news channel flashed the  news  that Lashkar-e-Toiba  had <\/p>\n
claimed the responsibility for the shooting incident in question which was <\/p>\n
                                             4<\/span><\/p>\n
entered   in  the  daily diary.   On  the   same  morning  one   AK56   assault  rifle <\/p>\n
(Exhibit PW-62\/1) lying near Vijay Ghat on the back side of Lal Qila was <\/p>\n
found  abandoned.    There  were  seven  cartridges  in the  magazine.    They <\/p>\n
were   taken   into   police   possession   vide   memo   Exhibit   PW-62\/F.     On   the <\/p>\n
same morning in early hours extensive search went on of the back side of <\/p>\n
the Red Fort.  The police found a polythene bag containing some currency <\/p>\n
notes of different denominations and a piece of paper, a chit (Exhibit PW-<\/p>\n
183\/B) on which a mobile No.9811278510 was  mentioned.   According to <\/p>\n
the prosecution, the intruders had escaped from that very spot by scaling <\/p>\n
down the rear side boundary wall of Red Fort using the pipe and further a <\/p>\n
small   platform   for   landing   from   below   the   pipe.     According   to   the <\/p>\n
prosecution, while jumping from the platform, the said polythene bag with <\/p>\n
cash and the paper slip fell out of the pocket of one of the intruders.  The <\/p>\n
currency   notes   and   the   paper   slip   were   seized   vide   memo   Exhibit   PW-<\/p>\n
183\/A.  It was on the basis of this cell phone number that the investigation <\/p>\n
agency   started   tracing   the   calls   and   collecting   the   details   from   which   it <\/p>\n
transpired   that   between   7:40   p.m.   and   7:42   p.m.   on   the   night   of   the <\/p>\n
incident,   two   calls   were   made   from   this   mobile   number   to   telephone <\/p>\n
No.0194452918  which  was  the number of one BBC correspondent in Sri <\/p>\n
Nagar,   Altaf   Hussain   (PW-39).   It   was   also   found   that   three   calls   were <\/p>\n
made from same mobile number to telephone number 0113355751 which <\/p>\n
number was found to be that of BBC correspondent in Delhi, Ayanjit Singh <\/p>\n
                                             5<\/span><\/p>\n
(PW-41) between 9:25 p.m. and 9:33 p.m.   The police found out that this <\/p>\n
mobile No.9811278510 was being used from two instruments whose IMEI <\/p>\n
number   (identification   number   engraved   on   the   mobile   handset   by   the <\/p>\n
manufacturer) were obtained from mobile service provider ESSAR.  These <\/p>\n
numbers   were   445199440940240   and   449173405451240.     The   police <\/p>\n
could also find out that the person who had mobile connection card having <\/p>\n
No.9811278510   had   another   mobile   cash   card   of   ESSAR   company   with <\/p>\n
No.9811242154 and from this number large number of calls were found to <\/p>\n
have   been   made   to   telephone   No.2720223   which   was   found   to   be   the <\/p>\n
number of telephone installed at flat No.308A, DDA flats, Ghazipur, Delhi. <\/p>\n
This   flat   was   registered   in   the   name   of   one   Farzana   Farukhi.     Similarly, <\/p>\n
number   of   calls   were   found   to   have   been   made   from   telephone <\/p>\n
No.2720223 to 9811242154.   It was also found that number of calls were <\/p>\n
made   from   cell   No.   9811242154   to   telephone   No.6315904   which   was   a <\/p>\n
landline number installed at House No.18-C, Gaffur Nagar, Okhala where <\/p>\n
a computer centre in the name of `Knowledge  Plus’ was  being run.   The <\/p>\n
further investigation revealed that this said computer centre was being run <\/p>\n
by one Mohd. Arif @ Ashfaq (appellant herein) who was residing at the flat <\/p>\n
mentioned   as   flat   No.308A,   DDA   Flats,   Ghazipur   where   landline <\/p>\n
No.2720223  was  installed.    The police, therefore, could connect the said <\/p>\n
flat No.308A at Ghazipur and the computer Centre i.e. Knowledge Plus at <\/p>\n
Okhala   and   could   also   connect   Mohd.   Arif   @   Ashfaq   with   these   two <\/p>\n
                                            6<\/span><\/p>\n
places.  A surveillance was kept on these places for two days.  During this <\/p>\n
period of surveillance, the computer centre had remained closed.   On the <\/p>\n
basis   of   some   secret   information   the   premises   at   308A,   Ghazipur   were <\/p>\n
raided on the night of 25-26.12.2000 and the appellant-accused Mohd. Arif <\/p>\n
@ Ashfaq was apprehended by the police while he was entering the flat.  It <\/p>\n
was   found   during   the   investigation   that   Farzana   Farukhi   in   whose   name <\/p>\n
telephone   No.   2720223   was   registered   was   a   divorcee   sister-in-law   of <\/p>\n
Mohd. Arif @ Ashfaq i.e. her sister was  married to Mohd. Arif @ Ashfaq <\/p>\n
whose  name was  Rehmana Yusuf Farukhi.   Mother of these  two  sisters, <\/p>\n
namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.<\/p>\n
6.     On his apprehension, Mohd. Arif @ Ashfaq (appellant) was cursorily <\/p>\n
searched   by   Inspector   Ved   Prakash   (PW-173)   during   which   one   pistol <\/p>\n
(Exhibit   PW-148\/1)   with   six   live   rounds   was   found   with   him.     They   were <\/p>\n
sealed and taken into police custody.   The appellant on his apprehension <\/p>\n
accepted   his   involvement   in   the   incident   inside   the   Lal   Qila   and   gave <\/p>\n
further   information  to   the   policemen  about   the   presence   of  his   associate <\/p>\n
Abu Shamal @ Faizal as also the ammunitions at their hide out at House <\/p>\n
No.G-73 Batla House, Murari Road, Okhala, New Delhi.\n<\/p>\n<\/p>\n
7.     He was immediately taken to that house by the raiding team which <\/p>\n
was   headed   by   Inspector   Mahesh   Chandra   Sharma   (PW-229)   and   truly <\/p>\n
enough, in pursuance of the information given by him, the associate Abu <\/p>\n
                                           7<\/span><\/p>\n
Shamal was found to be there.  The police party did not approach the flat <\/p>\n
immediately as the house was found to be locked.  However, at about 5.15 <\/p>\n
a.m. in the morning one person had gone inside the house and closed the <\/p>\n
door from inside.  The police then asked him to open the door but instead <\/p>\n
of opening the door, he started firing from inside at the police party.   The <\/p>\n
police party returned the firing with their fire arms and ultimately the person <\/p>\n
who was firing from inside died and was identified by appellant Mohd. Arif <\/p>\n
@ Ashfaq to be Abu Shamal @ Faisal.  Substantial quantity of ammunition <\/p>\n
and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-<\/p>\n
229\/1),   two   hand   grenades   one   of   which   was   kept   in   Bandolier   (Exhibit <\/p>\n
PW-229\/5), two magazines (Exhibit PW-229\/2-3) one of which had 30 live <\/p>\n
cartridges.  Some material for cleaning arms kept in a pouch (Exhibit PW-<\/p>\n
229\/6) and Khakhi Colour Uniform (Exhibit PW-229\/8) were recovered and <\/p>\n
seized   by   the   police   vide   seizure   Memo   (Exhibit   PW-229\/D   &   E).     A <\/p>\n
separate   case  was   registered   under  Sections  186,   353  and   307,   IPC   as <\/p>\n
also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of <\/p>\n
the Arms Act was registered at New Friends Colony in FIR No.630\/2000. <\/p>\n
That   case   ended   up   in   preparation   of   a   closure   report   because   the <\/p>\n
accused had already died in the encounter with the police.  After the above <\/p>\n
encounter,  the accused appellant was  brought back to his flat where  the <\/p>\n
search had already been conducted by policemen.  During that search one <\/p>\n
Ration card which  was  ultimately found to be forged (Exhibit PW-164\/A), <\/p>\n
                                             8<\/span><\/p>\n
one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13\/1), <\/p>\n
one   cheque   book   of   HDFC   bank   in   the   name   of   Mohd.   Arif   @   Ashfaq <\/p>\n
(appellant herein), one ATM card, one cheque book of the State Bank of <\/p>\n
India   in  the  name  of  Rehmana  Yusuf  Farukhi,   wife  of  accused  appellant <\/p>\n
was found.  The said rifle was also taken into custody.  One pay-in slip of <\/p>\n
Standard   Chartered   bank   (Exhibit   PW-173\/K)   showing   deposit   of   Rs.5 <\/p>\n
lakhs   in   the   account   of   M\/s.   Nazir   &   Sons   was   found.     The   said   firm <\/p>\n
belonged   to   other   accused   Nazir   Ahmad   Qasid.     This   amount   was <\/p>\n
deposited  by the appellant may be through  Hawala  from the high ups of <\/p>\n
the   Lashkar-e-Toiba.     Mohd.   Arif   @   Ashfaq   (appellant   herein)   was   then <\/p>\n
brought back and there S.I. Harender Singh (PW-194) arrested Mohd. Arif <\/p>\n
@ Ashfaq (appellant herein).   He searched him again when one Motorola <\/p>\n
mobile handset was  recovered from his possession.   The number of that <\/p>\n
instrument was found to be 9811278510.  Its IMEI number which fixed the <\/p>\n
identification   number   of   the   hand   set   engraved   on   the   instrument   was <\/p>\n
445199440940240.  The cell phone was thereafter taken in possession.<\/p>\n
8.     In his interrogation by S.I. Harender Singh (PW-194), accused made <\/p>\n
a   discovery   statement   which   is   recorded   as   Exhibit   148\/E   about   one <\/p>\n
assault rifle which was  thrown near Vijay Ghat behind the Red Fort after <\/p>\n
the incident by one of the associates (this was  already recovered by the <\/p>\n
police) and one AK-56 rifle and some ammunition behind the rear wall of <\/p>\n
                                           9<\/span><\/p>\n
Red Fort by his another associate.   In pursuance of that, he was taken to <\/p>\n
the backside of Red Fort and from there on his pointing out one AK-56 rifle <\/p>\n
(Exhibit   PW-125\/1),   two   magazines   (Exhibit   PW-125\/2-3)   having   live <\/p>\n
cartridges,   one  bandolier   and   four  hand  grenades   were  recovered  in  the <\/p>\n
presence of the ballistic experts S.K. Chadha (PW-125) and N.B. Bardhan <\/p>\n
(PW-202).  The same was taken to the police station. The ballistic experts <\/p>\n
after   defusing   the   hand   grenades   took   the   whole   material   in   their <\/p>\n
possession vide Exhibit memo PW- 218\/C.   Another discovery statement <\/p>\n
(Exhibit   PW-168\/A)   was   made   on   01.01.2001   through   which   he   got <\/p>\n
recovered   three  hand  grenades   from  the   place  near  Jamia  Millia  Islamia <\/p>\n
University duly hidden.   This spot  was   on the  back  side  of his computer <\/p>\n
centre   `Knowledge   Plus’.     They   were   seized   vide   seizure   memo   Exhibit <\/p>\n
PW-168\/B.  A separate FIR was also recorded by FIR No.3\/2001.<\/p>\n
9.     The prosecution case, as it revealed on the basis of the investigation <\/p>\n
which followed, appears to be that the accused-appellant was a Pakistani <\/p>\n
national   and   eventually   joined   a   terrorist   organization   called   Lashker-e-<\/p>\n
Toiba.     The   accused-appellant   took   extensive   training   by   using <\/p>\n
sophisticated  arms  like AK-56 rifles and hand grenades  and  had illegally <\/p>\n
entered   the   Indian   territory   along   with   arms   and   ammunition   in   August, <\/p>\n
1999 and camped himself at Srinagar in the company of other members of <\/p>\n
Lashker-e-Toiba who  were  similarly motivated by that Organization.    The <\/p>\n
                                               10<\/span><\/p>\n
Organization had also decided to overawe India by their terrorist activities <\/p>\n
in   different   parts   of   India   and   to   fulfill   that   object,   the   accused-appellant <\/p>\n
and   his   fellow   terrorists   had   planned   an   attack   on   Army   stationed   inside <\/p>\n
Red   Fort.     According   to   the   prosecution,   the   money   required   for   this <\/p>\n
operation   was   collected   by   the   accused-appellant   through   hawala <\/p>\n
channels, which was evident from the fact that during the investigation, he <\/p>\n
had led the police to one of the hawala dealers in Ballimaran area in Old <\/p>\n
Delhi.     One   Sher   Zaman   Afghani   and   Saherullah   were   the   said   hawala <\/p>\n
dealers,   but   they   could   not   be   apprehended.     The   police,   however, <\/p>\n
recovered   Rs.2   lakhs   from   the   shop   which   was   left   open.     From   the <\/p>\n
information   given   by   the   accused-appellant,   the   police   ultimately   caught <\/p>\n
hold of 10 more persons, which included his Indian wife Rehmana Yusuf <\/p>\n
Farukhi.     The   other   accused   persons   were   Nazir   Ahmad   Qasid,   his   son <\/p>\n
Farooq Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam, Sadakat <\/p>\n
Ali, Shahanshah Alam, Devender Singh, Rajeev Kumar Malhotra and Mool <\/p>\n
Chand Sharma.  Excepting the accused-appellant, nobody is before us, as <\/p>\n
few of them were acquitted by the trial Court and others by the appellate <\/p>\n
Court.  It is significant enough that there is no appeal against the acquittal <\/p>\n
by the High Court.   There were number of other persons according to the <\/p>\n
prosecution   who   were   the   co-conspirator   with   the   accused-appellant. <\/p>\n
However,   they   were   not   brought   to   book   by   the   police.     They   were <\/p>\n
declared as proclaimed offenders.   There is a separate charge-sheet filed <\/p>\n
                                             11<\/span><\/p>\n
against those proclaimed offenders also.\n<\/p>\n<\/p>\n
10.    In   order   to   establish   an   Indian   identity   for   himself,   the   accused-<\/p>\n
appellant had married Rehmana Yusuf Farukhi who was also joined as an <\/p>\n
accused.   According to the prosecution, she had full knowledge about the <\/p>\n
accused-appellant being a Pakistani national and  his nefarious  design of <\/p>\n
carrying out terrorist activities.  Significantly enough, she had married only <\/p>\n
14   days   prior   to   the   shoot-out   incident   i.e.   on   8.12.2000.     She   was   of <\/p>\n
course,   paid   substantial   amounts   from   time   to   time   by   the   accused-<\/p>\n
appellant prior to her marrying him and this amount was deposited in her <\/p>\n
bank   account   No.   5817   with   the   State   Bank   of   India.     The   prosecution <\/p>\n
alleged   that   the   accused-appellant   was   in   touch   with   Rehmana   Yusuf <\/p>\n
Farukhi even prior to the marriage.   One other accused, Sadakat Ali was <\/p>\n
arrested   for   having   given   on   rent   his   property   in   Gaffur   Nagar   to   the <\/p>\n
accused-appellant   for   running   a   computer   centre   in   the   name   of <\/p>\n
`Knowledge   Plus’.     Sadakat   Ali   is   said   to   have   been   fully   aware   of   the <\/p>\n
design of the accused-appellant and he had knowingly joined hands with <\/p>\n
the accused-appellant and had not informed the police that he had let out <\/p>\n
his premises to the accused-appellant.   Huge money used to be received <\/p>\n
by   the   accused-appellant   which   he   used   to   deposit   in   the   accounts   of <\/p>\n
accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad   Qasid   in   Standard <\/p>\n
Chartered   Grindlays   Bank’s   branch   at   Srinagar   and   after   withdrawing <\/p>\n
                                              12<\/span><\/p>\n
money so deposited, the same used to be distributed amongst their fellow <\/p>\n
terrorists   for   supporting   the   terrorist   activities.     According   to   the <\/p>\n
prosecution,   huge   amount   of   money   was   deposited   by   the   accused-<\/p>\n
appellant   in   the   two   bank   accounts   of   Nazir   &   Sons   and   Farooq   Ahmed <\/p>\n
Qasid   with   Standard   Chartered   Grindlays   Bank’s   branch   at   Connaught <\/p>\n
Place,   New   Delhi.     The   police   was   able   to   retrieve   one   deposit   receipt <\/p>\n
showing deposit of five lakhs of rupees in November, 2000 in the account <\/p>\n
of   Nazir   &   Sons.     The   said   receipt   was   recovered   from   the   flat   of   the <\/p>\n
accused-appellant   after   he   was   apprehended   on   the   night   of <\/p>\n
25\/26.12.2000.\n<\/p>\n<\/p>\n
11.     Some other accused of Indian origin had also helped the accused-<\/p>\n
appellant,   they   being   Devender   Singh,   Shahanshah   Alam   and   Rajeev <\/p>\n
Kumar   Malhotra.     They   got   a   forged   learner’s   driving   license   No.   9091 <\/p>\n
(Exhibit   PW-13\/C)   which   was   purported   to   have   been   issued   by   Delhi <\/p>\n
Transport Authority’s office at Sarai Kale Khan, wherein a false residential <\/p>\n
address   was   shown   as   B-17,   Jangpura.     On   that   basis,   the   accused-<\/p>\n
appellant   also   got   a   permanent   driving   license   (Exhibit   PW-13\/1)   in   his <\/p>\n
name   from   Ghaziabad   Transport   Authority.     The   accused-appellant,   with <\/p>\n
the   cooperation   of   these   three   accused   persons,   had   submitted   a <\/p>\n
photocopy   of   a   ration   card,   again   with   the   forged   residential   address   as <\/p>\n
102, Kaila Bhatta, Ghaziabad.  This very driving license was then used by <\/p>\n
                                                13<\/span><\/p>\n
the accused-appellant for opening a bank account with HDFC Bank in New <\/p>\n
Friends Colony, New Delhi, wherein he had shown his permanent address <\/p>\n
as 102, Kaila Bhatta, Ghaziabad and mailing address as 18, Gaffur Nagar, <\/p>\n
Okhla, New Delhi.  Needless to mention that even these two were not his <\/p>\n
actual addresses.  These were utilized by him for stashing the money that <\/p>\n
he received from the foreign countries.   Accused Babar Mohsin provided <\/p>\n
shelter to the accused-appellant in his house in Delhi in February-March, <\/p>\n
2000,   so   that   the   accused-appellant   could   prepare   a   base   in   Delhi   for <\/p>\n
carrying   out   terrorist   acts   in   Delhi.     This   Babar   Mohsin   had   also <\/p>\n
accompanied the accused-appellant on his motorcycle to different parts of <\/p>\n
Delhi   in   order   to   show   various   places   of   importance   to   the   accused-<\/p>\n
appellant,  which  could be  targeted for  a  terrorist attack.   The police  was <\/p>\n
also able to retrieve a letter (Exhibit PW-10\/C) addressed to Babar Mohsin, <\/p>\n
thanking him for the help extended by him to the accused-appellant during <\/p>\n
his   visit   to   Delhi.     This   letter   was   written   from   Srinagar.     This   letter   was <\/p>\n
seized by the police from the dickey of the motorcycle belonging to Babar <\/p>\n
Mohsin  on 07.01.2001.    One  other  accused Matloob  Alam  was  having  a <\/p>\n
ration   shop   in   Okhla   while   accused   Mool   Chand   Sharma   was   the   area <\/p>\n
Inspector of Food & Supply Department.  Both these accused persons had <\/p>\n
helped the  accused-appellant  in getting a ration card  (Exhibit PW-164\/A) <\/p>\n
which   contained   false   information.     Accused   Matloob   Alam   was   charged <\/p>\n
for   distributing   number   of   fake   ration   cards   by   taking   bribe   from   the <\/p>\n
                                            14<\/span><\/p>\n
persons to whom  the cards were  issued.   A separate FIR being FIR No. <\/p>\n
65\/2001   was   registered   against   Matloob   Alam   at   Police   Station   New <\/p>\n
Friends Colony, New Delhi.  In fact, the ration card mentioned earlier was <\/p>\n
prepared   by   the   accused   Matloob   Alam   and   the   handwriting   expert   had <\/p>\n
given a clear opinion that the said ration card was in the hands of Matloob <\/p>\n
Alam himself.   The prosecution, therefore, proceeded against 11 accused <\/p>\n
persons, in all, who were charge-sheeted on the ground that they had all <\/p>\n
conspired together to launch an attack on the Army establishment  inside <\/p>\n
the Red Fort so as to pressurize the Government of India to yield  to the <\/p>\n
demand of the militants for vacating Kashmir<\/p>\n
12.    The   police   got   examined   all   the   arms   and   ammunition   from   the <\/p>\n
ballistic  expert N.B.  Bardhan  (PW-202), Senior  Scientific  Officer-I, CFSL, <\/p>\n
New Delhi.   Needless to mention that the said witness had found that the <\/p>\n
cartridges of the gun had actually been fired from AK-56 rifles which was <\/p>\n
got recovered by the accused-appellant from the backside of Red Fort and <\/p>\n
Vijay   Ghat.     The   weapons   were   found   by   the   witness   to   be   in   working <\/p>\n
order.     The   hand   grenades   recovered   at   the   instance   of   the   accused-<\/p>\n
appellant   from   Jamia   Milia   Islamia   University   were   also   examined   and <\/p>\n
found   to   be   live   ones   and   these   were   defined   as   “explosive   substance”. <\/p>\n
The   pistol   and   the   cartridges   recovered   from   the   possession   of   the <\/p>\n
accused-appellant   on   his   apprehension   were   also   got   examined   by <\/p>\n
                                              15<\/span><\/p>\n
another ballistic expert Shri K.C. Varshney (PW-211), who vide his report <\/p>\n
Exhibit   PW-211\/A,   found   the   said   pistol   to   be   in   working   order   and   the <\/p>\n
cartridges to be live ones and being capable of being fired from the said <\/p>\n
pistol.     The   police   also   found   that   the   eleven   empties   of   fired   cartridges <\/p>\n
from Self Loading Rifles (SLRs) of the Army men were actually fired from <\/p>\n
SLRs made by Ordinance Factory at Kirki, India and that they could not be <\/p>\n
loaded in either of the two Assault Rifles recovered by the police.<\/p>\n
13.     This   was,  in  short,   a  conspiracy  and   after  obtaining   the  necessary <\/p>\n
sanctions, the police filed a charge-sheet against 11 accused persons.  All <\/p>\n
the cases were committed to the Court of Sessions and though they were <\/p>\n
registered   as   separate   Sessions   cases,   they   were   clubbed   by   the   trial <\/p>\n
Court   and   the   case   arising   out   of   FIR   No.   688\/2000   was   treated   as   the <\/p>\n
main   case.     We   do   not   propose   to   load   this   judgment   by   quoting   the <\/p>\n
charges framed against all the accused persons.  Suffice it to say that they <\/p>\n
were   charged   for   the   offence   punishable   under   Sections   121,   121A   and <\/p>\n
120-B   IPC   read   with   Section   302,   IPC.   The   accused-appellant   was <\/p>\n
individually charged for the offence punishable under Section 120-B, IPC <\/p>\n
on various counts as also for the offence punishable under Section 3 of the <\/p>\n
Arms Act read with Sections 25 and 27 of the Arms Act as also Sections 4 <\/p>\n
and 5 of the Explosive Substances Act.  Lastly, the accused-appellant was <\/p>\n
                                           16<\/span><\/p>\n
also charged for the offence punishable under Section 14 of the Foreigners <\/p>\n
Act for illegally entering into India without valid documents.<\/p>\n
14.    The prosecution examined as many as 235 witnesses and exhibited <\/p>\n
large   number   of   documents.     Accused   Rehmana   Yusuf   Farukhi   alone <\/p>\n
adduced evidence in defence and examined her own mother and tried to <\/p>\n
show that they did not know the accused-appellant was a militant and that <\/p>\n
the money in the bank account of Rehmana Yusuf Farukhi was  her own <\/p>\n
money and not given by the accused-appellant.\n<\/p>\n<\/p>\n
15.    The   accused-appellant   was   convicted   for   the   offence   punishable <\/p>\n
under Sections120-B, 121 and 121-A, IPC, Sections 186\/353\/120-B, IPC, <\/p>\n
Section 120-B, IPC read with Section 302, IPC, Sections 468\/471\/474, IPC <\/p>\n
and also under Section 420 read with Section 120-B, IPC.   The accused-<\/p>\n
appellant was also held guilty for the offence punishable under Section 25 <\/p>\n
of the Arms Act, Section 4 of the Explosive Substances Act and Section 14 <\/p>\n
of   the   Foreigners   Act.     We   are   not   concerned   with   the   convictions   of <\/p>\n
accused   Nazir   Ahmad   Qasid,   Farooq   Ahmed   Qasid,   Rehmana   Yusuf <\/p>\n
Farukhi, Babar Mohsin, Sadakat Ali and Matloob Alam.  Barring the above <\/p>\n
accused, all the other accused persons were acquitted by the trial Court. <\/p>\n
The   accused-appellant   was   awarded   death   sentence   for   his   convictions <\/p>\n
under Section 121, IPC as also under Section 302 read with Section 120-<\/p>\n
B,   IPC.     He   was   awarded   rigorous   imprisonment   for   10   years   for   his <\/p>\n
                                            17<\/span><\/p>\n
conviction   under   Section   121-A,   IPC.     He   was   awarded   sentence   of   life <\/p>\n
imprisonment   for   his   conviction   under   Section   4   of   the   Explosive <\/p>\n
Substances   Act,   while   on   other   counts,   he   was   awarded   rigorous <\/p>\n
imprisonment   for   7   years   for   the   conviction   under   Sections <\/p>\n
468\/471\/474\/420, IPC.  He was awarded rigorous imprisonment for 3 years <\/p>\n
for his conviction under Section 25 of the Arms Act.   He was  awarded 2 <\/p>\n
years’ rigorous imprisonment for his conviction under Section 353, IPC and <\/p>\n
3 months’ rigorous imprisonment for his conviction under Section 186, IPC. <\/p>\n
He  was  slapped  with  fines  also with  defaults stipulation.    The  sentences <\/p>\n
were, however, ordered to run concurrently.  The other accused Rehmana <\/p>\n
Yusuf Farukhi, Babar Mohsin, Nazir Ahmad Qasid, Farooq Ahmed Qasid, <\/p>\n
Matloob   Alam   and   Sadakat   Ali   were   awarded   various   convictions; <\/p>\n
however, their appeal was allowed by the High Court.  That leaves us only <\/p>\n
with   the   appeal   filed   by   the   present   appellant.     The   High   Court   also <\/p>\n
confirmed the death sentence awarded by the trial Court to Mohd. Arif @ <\/p>\n
Ashfaq   (accused-appellant).     The   State   had   also   filed   one   appeal <\/p>\n
challenging the acquittal of accused Rehmana Yusuf Farukhi, Sadakat Ali <\/p>\n
and Babar Mohsin for the serious offence of hatching conspiracy with co-<\/p>\n
accused   Mohd.   Arif   @   Ashfaq,   Farooq   Ahmed   Qasid   and   Nazir   Ahmad <\/p>\n
Qasid   to   wage   war   against   the   Government   of   India,   so   also   an   appeal <\/p>\n
was   filed   against   the   accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad <\/p>\n
Qasid for enhanced punishment of death penalty in place of the sentence <\/p>\n
                                              18<\/span><\/p>\n
of   life   imprisonment   awarded   to   them   by   the   trial   Court.     The   State, <\/p>\n
however,   did   not   file   any   appeal   against   the   four   acquitted   accused <\/p>\n
persons.     The   High   Court,   after   examination   in   details,   confirmed   the <\/p>\n
conviction   and   the   sentence   only   of   the   present   appellant,   while   all   the <\/p>\n
other appeals filed by other accused persons were allowed and they were <\/p>\n
acquitted.  The appeals filed by the State for enhancement, as also against <\/p>\n
the   acquittal   of   other   accused   persons   from   the   other   charges,   were <\/p>\n
dismissed by the High Court.   That is how, we are left with the appeal of <\/p>\n
Mohd. Arif @ Ashfaq, the present appellant herein.\n<\/p>\n<\/p>\n
16.     The  first contention  raised by Ms. Kamini Jaiswal,  learned  counsel <\/p>\n
appearing   on   behalf   of   the   respondent   was   that   no   such   incident   of <\/p>\n
outsiders   going   into   the   Red   Fort   and   shooting   ever   happened.     The <\/p>\n
learned counsel further argued that the said shooting was as a result of the <\/p>\n
brawl   between   the   Army   men   themselves.     In   order   to   buttress   her <\/p>\n
argument,   the   learned   counsel   further   said   that   even   the   police   was   not <\/p>\n
permitted   to   enter   the   Red   Fort   initially   and   though   an   enquiry   was   held <\/p>\n
regarding   the   incident,   the   outcome   of   such   enquiry   has   never   been <\/p>\n
declared.     The   learned   counsel   attacked   the   evidence   of   Capt.   S.P. <\/p>\n
Patwardhan  (PW-189)  on the  ground  that  the  report  made by him  which <\/p>\n
was   registered   as   FIR   on   22.12.2000   was   itself   suspicious,   as   it   was <\/p>\n
clearly   hearsay.     The   learned   counsel   further   relied   on   the   evidence   of <\/p>\n
                                            19<\/span><\/p>\n
Head   Constable   Virender   Kumar   (PW-15)   who   was   a   duty   officer   at <\/p>\n
Kotwali   Police   Station   and   claimed   that   he   received   the   information   at <\/p>\n
about 9.25 pm which he had recorded as DD No. 19A.  It was pointed out <\/p>\n
that the said DD Entry was handed over to S.I. Rajinder Singh (PW-137) <\/p>\n
and Constable Jitender Singh (PW-54) was directed to accompany him.  It <\/p>\n
was also pointed out that SHO Roop Lal (PW-234) was informed about the <\/p>\n
incident and he handed over to S.I. Rajinder Singh (PW-137) the report at <\/p>\n
11.30   pm   and   it   was   on   that   basis   that   the   FIR   No.   688\/2000   was <\/p>\n
registered   at   about   12.20   am   on   23.12.2000.     The   learned   counsel  then <\/p>\n
relied upon the report in the newspaper Hindustan Times in which it was <\/p>\n
stated that the police intelligence was not ruling out the possibility of shoot <\/p>\n
out being insiders’ job.  The learned counsel also referred to the evidence <\/p>\n
of Constable Jitender Singh (PW-54), Naik Suresh Kumar (PW-122), Major <\/p>\n
Manish Nagpal (PW-126), Mahesh Chand (PW-128), Retd. Subedar D.N. <\/p>\n
Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh <\/p>\n
(PW-137), as also the evidence of Major D.K. Singh (PW-144).  It was tried <\/p>\n
to be argued that there were  inter se  contradictions in the evidence of all <\/p>\n
the   witnesses   and   the   whole   story   of   some   intruders   going  into   the   Red <\/p>\n
Fort and shooting was nothing but a myth.   It was also suggested by the <\/p>\n
learned  counsel  that there was  serious dispute in the  versions regarding <\/p>\n
the ammunition used by the intruders and ammunition used by the Army <\/p>\n
personnel.     Fault   was   found   with   the   timing   of   registration   of   FIR   No. <\/p>\n
                                             20<\/span><\/p>\n
688\/2000.    The learned counsel also stated that the prosecution had not <\/p>\n
brought on record any register which is maintained for recording the entry <\/p>\n
of any vehicle in the Red Fort.   The learned counsel further suggested a <\/p>\n
contradiction in the evidence of Hawaldar Dalbir Singh (PW-134) and the <\/p>\n
statement of Retd. Subedar D.N. Singh (PW-131) regarding as to who took <\/p>\n
the rifle from Hawaldar Dalbir Singh (PW-134), whether it was Major D.K. <\/p>\n
Singh (PW-144) or Major Manish Nagpal (PW-126).   About the timings of <\/p>\n
various police officers reaching including that of SHO Roop Lal (PW-234), <\/p>\n
the learned counsel pointed out that there were some deficiencies.<\/p>\n
17.    Before   we   appreciate   these   features   of   the   evidence   and   the <\/p>\n
contentions   raised   by   the   learned   counsel   for   the   defence,   we   must   first <\/p>\n
clarify   that   this   Court   ordinarily   does   not   go   into   the   appreciation   of <\/p>\n
evidence,   particularly,   where   there   are   concurrent   findings   of   facts.     We <\/p>\n
have very closely examined both the judgments below and found that there <\/p>\n
is   a   thorough   discussion   as   regards   the   evidence,   oral   as   well   as <\/p>\n
documentary, and it was only after a deep consideration of such evidence <\/p>\n
that the trial and the appellate Courts have come to the concurrent finding <\/p>\n
against the appellant.   In order to see as to whether the acquittal of other <\/p>\n
accused   persons   can   be   linked   to   the   verdict   against   the   appellant,   we <\/p>\n
have examined even the other evidence which did not necessarily relate to <\/p>\n
the criminal activities committed by the appellant.   Inspite of the fact that <\/p>\n
                                              21<\/span><\/p>\n
there   has   been   a   concurrent   verdict   against   this   appellant,   still   we   have <\/p>\n
examined   the   oral   and   documentary   evidence   not   only   relating   to   the <\/p>\n
appellant,   but   also   to   the   other   accused   persons.     As   a   result,   we   have <\/p>\n
come   to   the   conclusion   that   the   trial   and   the   appellate   Courts   have   fully <\/p>\n
considered   the   oral   and   documentary   evidence   for   coming   to   the <\/p>\n
conclusions that they did.  In view of the concurrent findings, the scope to <\/p>\n
interfere   on   the   basis   of   some   insignificant   contradictions   or   some <\/p>\n
microscopic   deficiencies   would   be   extremely   limited.     All   the   same,   this <\/p>\n
being a death sentence matter, we ourselves have examined the evidence.<\/p>\n
18.     From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major <\/p>\n
Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar <\/p>\n
Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear <\/p>\n
opinion that what took place on the said night on 22.12.2000 could not be <\/p>\n
just   set   aside   as   an   internal   brawl   between   the   Army   men   themselves. <\/p>\n
The suggestion is absolutely wild.  We find from the evidence that none of <\/p>\n
these   witnesses   who   have   been   named   above   and   who   were   the   direct <\/p>\n
witnesses   to   the   firing   incident   have   been   given   this   suggestion   in   their <\/p>\n
cross-examination that it was merely a brawl between the Army men.  That <\/p>\n
apart, there are some circumstances which completely belie the theory of <\/p>\n
internal   brawl.     It   would   have   to   be   remembered   that   a   civilian   Sentry <\/p>\n
Abdullah Thakur was the first to lose his life.   There is nothing to suggest <\/p>\n
                                               22<\/span><\/p>\n
that   the   said   Sentry   Abdullah   Thakur   or   the   second   casualty   Rifleman <\/p>\n
(Barber)   Uma   Shankar,   as   also   Naik   Ashok   Kumar   had   developed   any <\/p>\n
enmity with anybody in the battalion.  Further, if this was a brawl between <\/p>\n
the Army men, there was no reason why Abdullah Thakur was shot at and <\/p>\n
killed.     We  also   do   not   find   any   reason   to   suspect   the   version   of   Major <\/p>\n
Manish Nagpal (PW-126) who himself claimed to have fired six rounds in <\/p>\n
the  direction of Ring Road after taking a self loading rifle from Hawaldar <\/p>\n
Dalbir Singh (PW-134).  In fact, there is no contradiction in his version and <\/p>\n
the   version   of   Hawaldar   Dalbir   Singh   (PW-134).     The   version   of   Major <\/p>\n
Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major <\/p>\n
D.K.  Singh  (PW-144) as  also the  evidence  of Retd.  Subedar  D.N.  Singh <\/p>\n
(PW-131).     Even   Major   D.K.   Singh   (PW-144)   had   fired   alongwith   Major <\/p>\n
Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties <\/p>\n
of   which   were   given   by   these   two   officers   to   Retd.   Subedar   D.N.   Singh <\/p>\n
(PW-131).  Ultimately, these empties were produced before the civil police <\/p>\n
officers   and   were   taken   into   possession   vide   Exhibit   PW-131\/A.     This <\/p>\n
version is also corroborated by Hawaldar Dalbir Singh (PW-134).  We have <\/p>\n
carefully  seen   the  evidence  of  all  these   witnesses   mentioned   above  and <\/p>\n
found   it   trustworthy.     It   must   be   mentioned   that   at   9.23   pm,   a   call   was <\/p>\n
made   to   the   Police   Control   Room   (PCR)   by   Major   Manish   Nagpal   (PW-<\/p>\n
126)   suggesting   that   some   persons   had   run   away   after   firing   inside   the <\/p>\n
Red Fort and that they had gone towards the Ring Road.  This was proved <\/p>\n
                                          23<\/span><\/p>\n
by   the   lady   Constable   Harvir   Kaur,   PCR   (PW-77)   and   the   concerned <\/p>\n
document is Exhibit  PW-77\/A which  lends full support to the version and <\/p>\n
suggests that there was an incident of shooting in the Red Fort.  DD Entry <\/p>\n
No.   19A   dated   22.12.2000   made   at   Police   Station   Kotwali   supports   this <\/p>\n
version  of  lady Constable  Harvir   Kaur  (PW-77),  which  suggests  that   she <\/p>\n
had flashed a wireless message about some persons having fled towards <\/p>\n
the Ring Road after resorting to firing inside the Red Fort.  The evidence of <\/p>\n
Head Constable Virender Kumar (PW-15) is also there to prove the report <\/p>\n
in  this regard  vide  Exhibit  PW-15\/B.   It  must be  remembered  that  Police <\/p>\n
Control Room had received the calls of similar nature at 9.47 pm and two <\/p>\n
calls   at   9.50   pm   vide   Exhibits   PW-42\/A,   PW-95\/A   and   PW-43\/A,   which <\/p>\n
support the version of the prosecution about the incident.  The evidence of <\/p>\n
Constable Indu Bala, PCR (PW-43) about having received a telephone call <\/p>\n
from   one  Karan   Mohan,  the   evidence  of  Col.  A.  Mohan  (PW-51)   that  he <\/p>\n
was informed by the Commanding Officer, 7th  Rajputana, Delhi that some <\/p>\n
civilians had entered Red Fort and the evidence of Constable Harvir Kaur, <\/p>\n
PCR   (PW-77)   that   she   received   information   from   Major   Manish   Nagpal <\/p>\n
(PW-126)  from  telephone  No. 3278234  about some  persons  having fled, <\/p>\n
as also the  evidence of Head Constable  Harbans, PCR  (PW-95) that  he <\/p>\n
had received a telephone call from Col. Mohan (PW-51) by telephone No. <\/p>\n
5693227 stating that his Jawan posted at Red Fort was attacked, supports <\/p>\n
the version that there was incident of shoot out and it could not be merely <\/p>\n
                                              24<\/span><\/p>\n
dismissed as an internal brawl.    This is apart from the evidence of other <\/p>\n
police witnesses like SHO Roop Lal (PW-234) who had reached the spot <\/p>\n
almost   immediately   after   receiving   the   wireless   message   and   who <\/p>\n
confirmed   the   presence   of   S.I.   Rajinder   Singh   (PW-137)   and   Capt.   S.P. <\/p>\n
Patwardhan (PW-189) on the spot.   The senior officers of the police had <\/p>\n
also   reached   the   spot   and   their   evidence   only   confirms   the   dastardly <\/p>\n
incident of shoot out.  There is enormous documentary evidence in shape <\/p>\n
of DD Entry No. 9A (Exhibit PW-156\/C), DD Entry No. 73 B, Exhibit PW-<\/p>\n
152\/B,   Exhibit   PW-152\/F   and   DD   No.   22A,   which   confirms   that   such <\/p>\n
incident had happened.   There is other piece of voluminous documentary <\/p>\n
evidence about seizure of blood sample (Exhibit PW-123\/B), seizure from <\/p>\n
the   spots   (Exhibit   PW-122\/B),   seizure   of   blood   stained   clothes   (Exhibit <\/p>\n
PW-114\/A),   Exhibit   PW-123\/A,   Exhibit   PW-122\/A,   seizure   of   magazine, <\/p>\n
live   cartridges   and   empties   (Exhibit   PW-189\/C),   Exhibit   PW-115\/A   to   37 <\/p>\n
(37 empty cartridges), Exhibit PW-115\/38 (1 live cartridge), seizure of rope <\/p>\n
and   cap   (Exhibit   PW-183\/D),   seizure   of   various   articles   from   Red   Fort <\/p>\n
(Exhibit   PW-196\/A)   and   Exhibits   PW-230\/A   &   230\/B   etc.   to   suggest   that <\/p>\n
the incident as, suggested by prosecution, did take place. It is also to be <\/p>\n
seen that the post mortem was conducted on the three bodies by Shri K. L. <\/p>\n
Sharma   (PW-187).     This   witness   has   opined   that   all   the   deceased   had <\/p>\n
bullet injuries by sophisticated fire arms and the shots were filed at them <\/p>\n
from   a   distant   range.     It   is   significant   that   the   doctor   was   not   cross-<\/p>\n
                                            25<\/span><\/p>\n
examined   to   the   effect   that   the   injury   could   have   been   caused   by   any <\/p>\n
weapon which was available with the Army and not with the AK 56 rifles. <\/p>\n
We are, therefore, not at all impressed by the argument that such incident <\/p>\n
was nothing but a white wash given by Army to hide the incident of internal <\/p>\n
brawl.     We   must   reject   the   whole   argument   as   too   ambitious.     We, <\/p>\n
therefore, hold that the incident of shoot out did take place in which three <\/p>\n
persons lost their lives.\n<\/p>\n<\/p>\n
19.    Ms. Jaiswal then argued that though the premises were thoroughly <\/p>\n
searched   as   claimed   by   Sub.   Ashok   Kumar   (PW-115)   he   did   not   find   a <\/p>\n
fired bullet.  She relied on the evidence of Hawaldar Dalbir Singh (PW-134) <\/p>\n
who  also claimed that the premises were  being searched all through the <\/p>\n
night.   Similarly, she referred to the evidence of S.I. Rajinder Singh (PW-<\/p>\n
137),   Maj.   D.K.   Singh   (PW-144),   Capt.   S.P.   Patwardhan   (PW-189),   and <\/p>\n
S.I.   Naresh   Kumar   (PW-217)   and   Inspector   Hawa   Singh   (PW-228). <\/p>\n
According to her, all these witnesses had suggested that the search was <\/p>\n
going on practically all through the night and that Capt. Patwardhan (PW-<\/p>\n
189)   had   also   ordered   the   search   outside.     The   argument   is   clearly <\/p>\n
incorrect.     Merely   because   all   these   witnesses   have   admitted   that   there <\/p>\n
was search going on for the whole night, it does not mean that the incident <\/p>\n
did   not   take   place.     We   have   already   pointed   out   that   number   of <\/p>\n
incriminating articles were found, the most important of the same being the <\/p>\n
                                               26<\/span><\/p>\n
empties of the bullets fired by the intruders.   It is very significant that the <\/p>\n
prosecution has been able to connect the bullets with the arms seized by <\/p>\n
them.\n<\/p>\n<\/p>\n
20.      One   of   the   two   rifles   was   found   near   Vijay   Ghat   from   the   bushes <\/p>\n
while   other   has   been   recovered   at   the   instance   of   appellant   on   26th <\/p>\n
December,   2000.     The   prosecution   has   examined   three   witnesses   who <\/p>\n
were the ballistic experts.  They were N.B. Bardhan (PW-202), A.Dey (PW-<\/p>\n
206),   K.C.   Varshney   (PW-211).   N.B.   Bardhan   (PW-202)   has   specifically <\/p>\n
stated that both the rifles were used in the sense that they were fired.   A. <\/p>\n
Dey (PW-206) had the occasion to inspect the rifle recovered from Batla <\/p>\n
House  as   Exhibit  PW-206\/B.     The   ballistic   experts  report   was   proved   by <\/p>\n
N.B.   Bardhan   (PW-202)   as   Exhibit   202\/A.     He   clearly   opined   that   the <\/p>\n
empties found inside the Red Fort had been fired  from  the rifles (Exhibit <\/p>\n
PW-125\/1) and (Exhibit PW-62\/1).   He clearly deposed that he examined <\/p>\n
39   sealed   parcels   sent   by   SHO,   Police   Station   Kotwali.     Out   of   these <\/p>\n
parcels,   according   to   the   witness,   parcel   No.34   was   containing   AK   56 <\/p>\n
assault   rifle   so   also   parcel   No.36   in   same   parcel,   sub-parcel   No.20 <\/p>\n
contained   another   assault   rifle.     He   further   confirmed   in   para   (iii)   of   his <\/p>\n
opinion   that   these   were   7.62   mm   assault   rifles   and   the   cartridges <\/p>\n
contained in bearing mark C-1 in parcel No.3 which were marked as C-49, <\/p>\n
C-52,C-56,C-58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm <\/p>\n
                                             27<\/span><\/p>\n
assault rifle cartridge cases marked as C-72,C-74,C-75 to C-80,C-82 to C-<\/p>\n
84   and   C-86,   C-89,C-91,   C-94   to   C-96,   C-98,   C-102,   C-106   to   C-108 <\/p>\n
contained in parcel No.19A had been fired from 7.62 mm AK assault rifle <\/p>\n
marked as W\/1 which  was  recovered  from back side of Lal Quila on the <\/p>\n
disclosure statement made by the appellant.  He further opined in para (iv) <\/p>\n
of his opinion that the cartridge cases marked as C-2 contained in parcel <\/p>\n
No.4, thirty four fired 7.62 mm assault rifle cartridge cases marked as C-32 <\/p>\n
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 <\/p>\n
contained in parcel No.19, as also sixteen 7.62 mm assault rifle cartridge <\/p>\n
cases marked as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93, <\/p>\n
C-97,   C-99,   C-100,   C-101,   C-103   to   C-105   contained   in   parcel   no.19A <\/p>\n
were fired from 7.62 mm assault rifle AK-56 marked as W\/2 rifle recovered <\/p>\n
from Vijay Ghat.  The report of the ballistic experts was proved as Exhibit <\/p>\n
PW-202\/C.   He duly proved and identified the cartridges which were  test <\/p>\n
fired in the laboratory.  He also proved and identified the rifles examined by <\/p>\n
him   and   the   magazines   along   with   the   other   live   cartridges   found   in   the <\/p>\n
same.     There   was   hardly   any   cross-examination   worth   the   name   of   this <\/p>\n
witness   and,   therefore,   it   is   clearly   established   that   the   cartridges   cases <\/p>\n
found inside the Red Fort were fired from the two rifles which were found <\/p>\n
outside the Red Fort.   This witness had also examined 11 empties of the <\/p>\n
self-loading rifles used by the army men firing towards intruders and had <\/p>\n
clearly   opined   that   those   empties   could   not   have   been   loaded   in   AK-56 <\/p>\n
                                               28<\/span><\/p>\n
rifles examined by him.   We must note that one of these rifles i.e. Exhibit <\/p>\n
PW-62\/1 was recovered on the discovery made by the appellant.  We shall <\/p>\n
come   to   the   merits   of   that   discovery   in   the   latter   part   of   our   judgment. <\/p>\n
However,   at   this   stage,   it   is   sufficient   to   note   that   the   prosecution   had <\/p>\n
thoroughly   proved   the   nexus   between   the   cartridge   cases   which   were <\/p>\n
found   inside   the   Red   Fort   and   the   incident.     This   nexus   is   extremely <\/p>\n
important   as   while   the   guns   were   found   outside   the   Red   Fort   the   fire <\/p>\n
empties were found inside.  This clearly suggests that the incident of firing <\/p>\n
took place inside the Red Fort while guns were abandoned by the intruders <\/p>\n
outside the Red Fort.   This witness also examined the contents of parcel <\/p>\n
No.34,   namely,   one   rifle   two   magazines,   live   cartridge,   knife   and   a <\/p>\n
Bandolier.     This   was   again   an   assault   rifle   of   7.62   mm   which   we   have <\/p>\n
already   considered   earlier.     However,   along   with   the   same,   as   per   the <\/p>\n
discovery   memorandum   a   bandolier   (Exhibit   PW-202\/3)   was   also   found. <\/p>\n
The contents of the Bandolier were in parcel No.35.  It contained four hand <\/p>\n
grenades and four detonators they being Exhibit PW-50\/1 to 4 and Exhibit <\/p>\n
PW-50\/5 to 8.  Very significantly four detonators had a slip affixed with the <\/p>\n
help of a tag and it was written in Urdu  Khabardar. Grenade firing ke liye  <\/p>\n
tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for <\/p>\n
firing. Pin should be taken out only when it is to be thrown).  The existence <\/p>\n
of these bandoliers and the grenades and their recovery goes a long way <\/p>\n
to prove that the theory propounded by the defence that the incident never <\/p>\n
                                               29<\/span><\/p>\n
took place inside the Red Fort at the instance of the intruders and it was an <\/p>\n
internal   affair   of   the   Army   men   inside   has   to   be   rejected.     In   order   to <\/p>\n
complete the narration, we must also refer to the evidence of Shri A. Dey <\/p>\n
who had examined the rifle found at Batla House during the encounter in <\/p>\n
which one Abu Shamal was killed.  That recovery is not seriously disputed <\/p>\n
by Ms. Jaiswal.\n<\/p>\n<\/p>\n
21.     We have the evidence of Subedar Ashok Kumar (PW-115) about the <\/p>\n
recovery of 37 empties cartridges and one live cartridge from the Red Fort <\/p>\n
so   also   the   evidence   of   Hawaldar   Ramesh   Kakre   (PW-116)   about   the <\/p>\n
empty   cartridges   being   found   near   sentry   post   where   Abudullah   Thakur <\/p>\n
was killed.   One live cartridge also was recovered from there.   He further <\/p>\n
deposed about the two empty cartridges found near M.T. Park where Uma <\/p>\n
Shankar   was   killed.     He   deposed   that   these   empties   were   found     near <\/p>\n
training store while seven empties were found near museum and the same <\/p>\n
was   handed   over   to   Subedar   Ashok   Kumar   (PW-115).     Similar   is   the <\/p>\n
evidence of S.P. Patwardhan (PW-189) about the place from where all this <\/p>\n
spent   ammunition   was   recovered.     SHO   Roop   Lal   (PW-234)   and   Naik <\/p>\n
Suresh   Kumar   (PW-122)   deposed   about   the   places   wherefrom   the <\/p>\n
cartridge cases and the magazines were  found from inside the Red Fort. <\/p>\n
All this supports the prosecution theory that the ghastly incident of firing did <\/p>\n
take place at the instance of some outsiders inside the Red Fort. <\/p>\n
                                           30<\/span><\/p>\n
22.    This   takes   us   to   another   contention   of   Ms.   Jaiswal   that   in   fact <\/p>\n
nothing was  found behind the Red Fort on the night of 23.12.2000.   The <\/p>\n
learned Solicitor General, Shri Subramanium placed a very heavy reliance <\/p>\n
on the recoveries made in the same night or early morning of next day i.e. <\/p>\n
23.12.2000.     The   recoveries   of   that   day   are   extremely   important.     Ms. <\/p>\n
Jaiswal    invited our attention in this behalf to the evidence of S.I. Sanjay <\/p>\n
Kumar (PW-183) who claimed that in the morning of 23.12.2000 during the <\/p>\n
search of the backside of the wall of the Red Fort abutting to the ring  road <\/p>\n
he   found   some   currency   worth   Rs.1415\/-   and   a   slip   contained   in   the <\/p>\n
polythene bag.   It was a short slip on which a mobile number was written <\/p>\n
being   9811278510.     According   to   witness   S.I.   Sanjay   Kumar   (PW-183), <\/p>\n
SHO Roop Lal (PW-234) was called at the place and it was SHO Roop Lal <\/p>\n
(PW-234)   who   pasted   the   telephone   number   slip   on   a   separate   paper. <\/p>\n
There   was   currency   and   both   these   articles   were   seized   by   the   police. <\/p>\n
This polythene bag was a transparent bag.   Besides the evidence of PW-<\/p>\n
183, SI Sanjay Kumar, we have the evidence of S.I. Naresh Kumar (PW-<\/p>\n
217) and SHO Roop Lal (PW-234).  The amount was separately kept vide <\/p>\n
Exhibit 183\/A while the slip was identified as Exhibit PW-183\/C.  We have <\/p>\n
seen the photographs of the polythene bag and the currency as also the <\/p>\n
slip which were also proved.   Ms. Jaiswal  attacked this recovery and the <\/p>\n
seizure   thereof   vehemently.     According   to   her   this   was   a   figment   of <\/p>\n
imagination by the investigating agency and there was no question of any <\/p>\n
                                          31<\/span><\/p>\n
such recovery much less in the wee hours of 23.12.2000 at about 5-6 a.m. <\/p>\n
She pointed out that the two witnesses S.I. Sanjay Kumar (PW-183) and <\/p>\n
S.I.  Naresh Kumar (PW-217) were  clearly lying.    We have  examined the <\/p>\n
evidence of all the three witnesses particularly in this behalf and we  find <\/p>\n
the evidence to be thoroughly reliable.  Ms. Jaiswal could not bring to our <\/p>\n
notice any material in the cross examination  of these witnesses so as to <\/p>\n
render   the   evidence   uncreditworthy.     Some   efforts   were   also   made   by <\/p>\n
relying   on   the   evidence   of   S.K.Chadha   (PW-125)   that   though   he   was   a <\/p>\n
member  of   the  team,   he  reached  the  spot   from   where  the  recovery   was <\/p>\n
made at 10 a.m. on 23.12.2000.   We fail to follow the significance of this <\/p>\n
admission.  It is not as if all the officers must remain at one and the same <\/p>\n
place if they are the members of a particular investigation team.  It may be <\/p>\n
that S. K. Chadha might have reached the spot at 10 O’clock but that does <\/p>\n
not   mean   recovery   team   consisting   of   other   members   did   not   effect <\/p>\n
recovery   of   the   polythene   bag   containing   currency   and   the   slip.     Ms. <\/p>\n
Jaiswal also urged that the premises were being searched thoroughly with <\/p>\n
the help of dog squad and the search light and that it was not possible that <\/p>\n
the search team would miss to notice the polythene bag and the currency <\/p>\n
and the slip lying in it.  The argument is only mentioned for being rejected. <\/p>\n
What the investigating team would be looking for are not the polythene bag <\/p>\n
and   the   small   paper   but   the   weapons   and   the   men   who   handled   those <\/p>\n
weapons.     A   small   transparent   polythene   bag   could   have   easily   been <\/p>\n
                                              32<\/span><\/p>\n
missed earlier or may not have attracted the attention of the investigating <\/p>\n
agency.    We do  not  find anything  to  suspect  the  claim  that  the  recovery <\/p>\n
was made at about 5-6 a.m.  We must note that this was the longest night <\/p>\n
when the sun rise would also be late.   Under such circumstances, in that <\/p>\n
dark   night   if   the   investigating   team,   after   the   microscopic   search,   took   a <\/p>\n
few ours in recovering the small apparently insignificant polythene bag, it is <\/p>\n
not   unnatural.     They   could   not   be   expected   to   find   polythene   bag <\/p>\n
instantaneously or immediately.   Much time must have been taken in first <\/p>\n
searching inside the Red Fort.   Therefore, if the polythene bag was found <\/p>\n
at   about   5-6   a.m.   as   per   the   claim   of   the   prosecution   agency,   and   not <\/p>\n
earlier,   there   is   nothing   uncreditworthy   in   the   claim.     We   are,   therefore, <\/p>\n
convinced that  the polythene  bag and  the slip mentioning  the cell phone <\/p>\n
number   were   actually   found   at   the   spot.     Ms.   Jaiswal   tried   to   find   some <\/p>\n
chinks in the armour by suggesting that S.I. Sanjay Kumar’s statement was <\/p>\n
contrary to the statement of S.I. Naresh Kumar (PW-217).  We do not find <\/p>\n
any discrepancy between the two statements.  Ms. Jaiswal also referred to <\/p>\n
the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that <\/p>\n
recovery   was   made   by   him   at   about   9   a.m.   in   the   morning.     What   the <\/p>\n
witness meant was that it was he who came in the possession of the items <\/p>\n
at 9 a.m.  There is nothing very significant in that assertion.  The evidence <\/p>\n
of SHO Roop Lal (PW-234) was also referred to who claimed that after the <\/p>\n
polythene   bag   was   produced   before   him   which   contained   currency   and <\/p>\n
                                               33<\/span><\/p>\n
paper slip, he sealed currency in the same polythene with the help of cloth <\/p>\n
and   sealed   under   parcel   given   Exhibit   No.24.     There   is   nothing   to   dis-<\/p>\n
believe  this claim after  all SHO Roop Lal (PW-234) was  the senior most <\/p>\n
investigating officer and there is nothing insignificant if S.I. Sanjay Kumar <\/p>\n
(PW-183) finding the polythene bag handed over the same to SHO Roop <\/p>\n
Lal (PW-234).  A specific step has been taken by S.I. Sanjay Kumar (PW-<\/p>\n
183)   by   getting   the   said   bag   photographed.     We   have   seen   the <\/p>\n
photographs also.  It is true that no photograph was taken of the polythene <\/p>\n
bag   containing   currency   note   and   the   slip   mentioning   the   telephone <\/p>\n
number.     They   appear   to   be   in   separate   photographs   and   it   is   quite <\/p>\n
understandable   as   immediately   after   the   finding   of   the   polythene   bag   it <\/p>\n
must have been handled by S.I. Sanjay Kumar (PW-183).   It is only after <\/p>\n
finding the slip and the telephone number mentioned thereon that by way <\/p>\n
of abundant caution the photographs were taken.  Anxiety was to show the <\/p>\n
slip   and   the   fact   that   there   was   a   telephone   number   written   on   the   slip. <\/p>\n
Ms.   Jaiswal   then   argued   that   Hawa   Singh   (PW-228)   had   stated   that   he <\/p>\n
was   told   about   the   slip   only   in   the   evening   though   he   joined   the <\/p>\n
investigation   at   10.30   a.m.     We   do   not   find   anything   substantial   in   this <\/p>\n
argument.     Ms.   Jaiswal   further   argued   that   there   is   contradiction   in   S.I. <\/p>\n
Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharma’s (PW-229) <\/p>\n
statement  as to who  had recovered  the currency  and slip and that  there <\/p>\n
was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183), <\/p>\n
                                                34<\/span><\/p>\n
S.K.   Chadha   (PW-125)   and   Inspector   Mohan   Chand   Sharma   (PW-229). <\/p>\n
Further,  she  tried  to  say that  there was  contradiction  in the  statement  of <\/p>\n
S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW-<\/p>\n
217) on the question as to whether currency and slip was taken inside the <\/p>\n
Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was <\/p>\n
called   on   the   spot   of   recovery.     She   also   raised   objections   about   the <\/p>\n
photographs that they were not taken in `as is where is position’.  We have <\/p>\n
already applied our mind to this aspect and we are of the clear opinion that <\/p>\n
the objections raised by the defence are absolutely insignificant.   What is <\/p>\n
material   is   the   polythene   bag   being   found.     The   police   could   not   have <\/p>\n
created   this   polythene   bag   containing   currency   and   slip   with   a   number <\/p>\n
mentioned   on   it.     There   was   no   question   of   any   false   evidence   being <\/p>\n
created   at   that   point   of   time   which   was   hardly   a   few   hours   after   the <\/p>\n
shootout.  It is true that the photographs of the polythene bag are not and <\/p>\n
could   be   on   `as   is   where   is   basis’.     We   have   already   given   the   reason <\/p>\n
thereof.  We have no doubts in our mind and we confirm the finding of the <\/p>\n
trial Court and the appellate Court that the said polythene bag containing <\/p>\n
the   currency   notes   and   the   slip   on   which   the   cell   phone   number   was <\/p>\n
mentioned,   was   actually   found   on   the   spot   which   spot   was   abutting   the <\/p>\n
backside   wall   of   the   Red   Fort.     It   has   to   be   borne   in   mind   that   a   major <\/p>\n
incident of shootout had occurred wherein three lives were lost.  The attack <\/p>\n
was on the Red Fort which has emotional and historical  importance  in the <\/p>\n
                                                35<\/span><\/p>\n
Indian minds.   Large investigation team was busy investigating the whole <\/p>\n
affair and, therefore, the police could not have produced out of the thin air <\/p>\n
a small polythene bag containing currency and the slip.  The spot where it <\/p>\n
was found is well described and was on the escape route of the intruders. <\/p>\n
That   wall   from   inside   the   Red   Fort   has   hardly   any   height   though   it   is   of <\/p>\n
about 15 to 20 feet from the ground on the other side.  We have seen the <\/p>\n
proved photograph which suggests that from that spot one can easily land <\/p>\n
on   the   extended   pipe   and   from   that   pipe   to   the   small   platform   and   from <\/p>\n
there   to   the   ground.   The   polythene   bag   was   found   near   this   spot. <\/p>\n
Therefore, we accept the finding by the trial Court and the appellate Court <\/p>\n
that this polythene bag must have slipped from a person who scaled down <\/p>\n
to the ground.   At the beginning of the  debate it was  made out as if the <\/p>\n
said wall was insurmountable and that nobody could have jumped from the <\/p>\n
height of about 50-60 feet.  Further on the close look at the evidence, the <\/p>\n
photographs the hollowness of the claim of the defence was writ large.<\/p>\n
23.     There   is   one   more   significant   circumstance   to   suggest   that   the <\/p>\n
polythene bag must have been found where it was claimed to have been <\/p>\n
found   by   the   investigating   agency   i.e.   the   finding   of   AK-56   rifle   from   a <\/p>\n
nearby spot in the bushes.   We will  consider the merits of that discovery <\/p>\n
which   was   at   the   instance   of   the   appellant   in   the   latter   part   of   our <\/p>\n
judgment.  Suffice it to say at this stage that the polythene bag was found <\/p>\n
                                            36<\/span><\/p>\n
in   the   reasonable   proximity   of   the   spot   from   where   AK-56   rifle   was <\/p>\n
recovered.\n<\/p>\n<\/p>\n
24.    Barely within 4-5 hours of the finding out the chit and the currency <\/p>\n
notes,   the   investigating   agency   found   one   AK-56   rifle   with   seven   live <\/p>\n
cartridges from a place near Vijay Ghat in the Ring Road behind the Red <\/p>\n
Fort.  A DD entry to that effect vide Exhibit PW-81\/A was made.  There is <\/p>\n
evidence   in   the   shape   of   Exhibit   PW   78A   proved   by   PW-78   Head <\/p>\n
Constable   Narender   Singh   which   is   a   Police   Control   Room   Form.     The <\/p>\n
prosecution also examined Head Constable Upender Singh (PW-89).  The <\/p>\n
evidence of Head Constable Satbir Singh (PW-81) proves the information <\/p>\n
having been given to the PCR.   There was a sketch of recovery  Naksha  <\/p>\n
Mauka Baramadgi,  seizure of rifle, magazine and the live cartridges from <\/p>\n
Vijay Ghat is evidenced in Exhibit PW-62\/B and also Exhibit 84\/XIV.  While <\/p>\n
dealing with the evidence of the ballistic expert we have already shown the <\/p>\n
connection   between   the   empty   cartridges   and   this   rifle.     This   rifle   was <\/p>\n
marked as W\/1 in the ballistic experts report and was identified as Exhibit <\/p>\n
PW-125\/1.  There is nothing to belie this discovery which is well supported <\/p>\n
by   the   evidence   of   Head   Constable   Narender   Singh   (PW-78),   Head <\/p>\n
Constable Satbir Singh (PW-81) and Head Constable Upender Singh (PW-<\/p>\n
89).   In fact Head Constable Upender Singh was the one who had found <\/p>\n
the   said   rifle.     Other   relevant   witness   who   corroborated   this   version   is <\/p>\n
                                            37<\/span><\/p>\n
Constable   Ranbir   Singh   (PW-35)   who   had   made   the   DD   entry   and   had <\/p>\n
received the message from police Control Room.  The other witnesses are <\/p>\n
SI Ram Chander (PW-62) who presided over the recovery and SHO Roop <\/p>\n
Lal (PW-234) who  was  also present at the time of recovery and saw the <\/p>\n
rifle.     The   other   witnesses,   namely,   SI   Sanjay   Kumar   (PW-183)   and   SI <\/p>\n
Naresh Kumar (PW-217) have provided the corroborating evidence to this <\/p>\n
recovery.  The whole recovery is proved by the prosecution.<\/p>\n
25.    However,   even   before   that   the   investigating   agency   started <\/p>\n
investigation   about   the   cell   number   which   was   found   written   in   the   slip <\/p>\n
which was found in the morning at about 5-6 a.m. this cell number was to <\/p>\n
provide   a   ray   of   light   to   the   investigating   agency   which   had   no   clue <\/p>\n
whatsoever   till   then   about   the   perpetrators   of   the   crime.   Ultimately,   the <\/p>\n
investigating   agency   on   the   basis   of   that   number   being   9811278510   not <\/p>\n
only unearthed the conspiracy but also reached the main players including <\/p>\n
the present appellant.\n<\/p>\n<\/p>\n
26.    The   investigation   suggests   that   the   said   mobile   number   slip   was <\/p>\n
assigned   to   Inspector   Mohan   Chand   Sharma   (PW-229).     This   was   a <\/p>\n
mobile number on the basis of the cash card.  At the relevant point of time, <\/p>\n
the cash card implied a SIM card, a SIM card loaded with  prepaid value <\/p>\n
and such SIM card were readily available in the open market.  There was <\/p>\n
no necessity of registering with the service provide for obtaining a mobile <\/p>\n
                                               38<\/span><\/p>\n
connection through cash card.  All that was required was activation by the <\/p>\n
service provider without which the cash card or the SIM card as the case <\/p>\n
may be could not be used.\n<\/p>\n<\/p>\n
27.     It   has  come  in   the  evidence  that   the   active   mobile   phone   has  two <\/p>\n
components   i.e.   the   mobile   instrument   and   the   SIM   card.     Every   mobile <\/p>\n
instrument   has   a   unique   identification   number,   namely,   Instrument <\/p>\n
Manufactured  Equipment Identity, for short, IMEI number.  Such SIM card <\/p>\n
could   be  provided  by the   service  providers  either  with  cash  card   or  post <\/p>\n
paid card to the subscriber and once this SIM card is activated the number <\/p>\n
is   generated   which   is   commonly   known   as   mobile   number.     The   mobile <\/p>\n
service   is   operated   through   a   main   server   computer   called   mobile <\/p>\n
switching centre which handles and records each and every movement of <\/p>\n
an active mobile phone like day and time of the call, duration of the call, <\/p>\n
calling and the called number, location of the subscriber during active call <\/p>\n
and   the   unique   IMEI   number   of   the   instrument   used   by   the   subscriber <\/p>\n
during   an   active   call.     This   mobile   switching   centre   manages   all   this <\/p>\n
through   various   sub-systems   or   sub-stations   and   finally   with   the   help   of <\/p>\n
telephone towers.  These towers are actually Base Trans-receiver Stations <\/p>\n
also   known   as   BTS.     Such   BTS   covers   a   set   of   cells   each   of   them <\/p>\n
identified   by   a   unique   cell   ID.     A   mobile   continuously   selects   a   cell   and <\/p>\n
exchanges   data   and   signaling   traffic   with   the   corresponding   BTC. <\/p>\n
                                             39<\/span><\/p>\n
Therefore,   through   a   cell   ID   the   location   of   the   active   mobile   instrument <\/p>\n
can be approximated.\n<\/p>\n<\/p>\n
28.    As  per the evidence  of Inspector Mohan Chand Sharma (PW-229) <\/p>\n
he collected the call details of the said mobile number which was received <\/p>\n
in a computer installed in his office at Lodhi Road.   He found that mobile <\/p>\n
phone number 9811278510 was constantly used from Zakir Nagar and at <\/p>\n
that   time   the   IMEI   number   of   the   cell   phone   instrument   used   was <\/p>\n
445199440940240.   It was found that the said number was also used for <\/p>\n
making calls to Pakistan.   However, from 11.12.2000, the IMEI number of <\/p>\n
the   mobile   phone   No.9811278510   was   changed   to   IMEI <\/p>\n
No.449173405451240.     It   transpired   from   the   evidence   that   this   IMEI <\/p>\n
number that the mobile phone number 9811278510 with the changed IMEI <\/p>\n
number   had   also   made   calls   to   landlines   which   were   discovered   to   be <\/p>\n
belonging   to   BBC,   Srinagar   and   BBC,   Delhi.     These   calls   were   made <\/p>\n
almost immediately after the incident of shootout.   This number was also <\/p>\n
used for making calls to Pakistan and pager number at Srinagar 01949696 <\/p>\n
and   0116315904.     The   latter   number   was   found   to   be   in   the   name   of <\/p>\n
Mohd. Danish Khan at 18C, Gaffur Nagar i.e. the computer centre run by <\/p>\n
the accused appellant.  It was also found that from this number calls were <\/p>\n
made to 0113969561 which was found to have been installed at the shop <\/p>\n
of   one   Sher   Zaman   who   was   allegedly   an   absconding   accused   and   the <\/p>\n
                                               40<\/span><\/p>\n
Hawala   operator.     The   analysis   of   call   details   of   9811278510   suggested <\/p>\n
that   the  said  mobile   number  was  used   in  two  mobile  instruments   having <\/p>\n
the aforementioned IMEI numbers.  This was done in case of cell number <\/p>\n
9811278510 with IMEI number 445199440940240 only between 26.10.200 <\/p>\n
to         14.11.2000         and         recovered         instrument         having         IMEI <\/p>\n
No.4491731405451240   between   11.12.2000   to   23.12.2000.     While <\/p>\n
scanning   earlier  IMEI   No.445199440940240,  it  was   found  that   one   other <\/p>\n
mobile   number   9811242154   was   found   to   have   been   used   in   the   said <\/p>\n
instrument.     This   instrument   used   mobile   number   9811242154   between <\/p>\n
22.7.2000   to   8.11.2000.     From   this,   Shri   Subramanium,   learned   Solicitor <\/p>\n
General urged that there were two mobile numbers, namely, 9811278510 <\/p>\n
and   9811242154   which   were   used   and   the   two   IMEI   numbers   namely <\/p>\n
445199440940240 and 449173405451240.   A pattern showed  the use of <\/p>\n
the third number which was 0116315904, the number of computer centre. <\/p>\n
Shri Subramanium learned Solicitor General submitted the following  data <\/p>\n
for our perusal:-\n<\/p>\n<\/p>\n
                “011-6315904- Computer Center<\/p>\n
                Found connected to Mobile No.9811278510:-<\/p>\n
                (1) 14.12.2000 at 125435 hrs<\/p>\n
           Found connected to Mobile No.9811242154:-<\/p>\n
                (1) 31.10.2000 at 211943 hrs<\/p>\n
                                         41<\/span><\/p>\n
              (2) 08.11.2000 at 082418 hrs<\/p>\n
              (3) 10.11.2000 at 144727 hrs<\/p>\n
              (4) 19.11.2000 at 163328 hrs<\/p>\n
        Found connected to Mobile No.9811242154 :-<\/p>\n<\/blockquote>\n
              (1) 09.09.2000 at 113619 hrs<\/p>\n
              (2) 08.09.2000 at 113753 hrs<\/p>\n
              (3) 02.10.2000 at 103130 hrs.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
   Learned   Solicitor   General   provided   the   data   regarding   the   telephone <\/p>\n
connection made by above number with the telephone connection of one <\/p>\n
Attruddin who was a proclaimed offender in Kashmir.<\/p>\n<\/blockquote>\n
 29.    It is also apparent, as argued by the learned Solicitor General that <\/p>\n
number  9811242154  was  constantly in  touch  with  two numbers,  namely, <\/p>\n
0116315904 which was installed at 18C Gaffur Nagar computer centre and <\/p>\n
011 2720223 installed in the name of Farzana, sister of Rehmana, the wife <\/p>\n
of accused at 308A, Janta Flats, Ghazipur.  This number 9811242154 had <\/p>\n
thus   a   definite   connection   with   mobile   No.9811278510   and   the   two <\/p>\n
instruments   bearing   IMEI   numbers   mentioned   earlier   with   each   other. <\/p>\n
Therefore,  these  two points,  namely,  the  computer  centre and   the flat  at <\/p>\n
308A, Janta Flat, Ghazipur were  kept under observation.   Relying on the <\/p>\n
evidence of Inspector  Mohan Chand Sharma (PW-229), learned  Solicitor <\/p>\n
General argued that calls made from No.9811242154 were between Zakir <\/p>\n
                                             42<\/span><\/p>\n
Nagar and Ghazipur.   It was found that the location of the phone used to <\/p>\n
be at Ghazipur when the calls were made to that number from Zakir Nagar <\/p>\n
and the location of phone used to be at Zakir nagar when the calls were <\/p>\n
made from Ghazipur.  Significantly enough, the `Knowledge Plus’ computer <\/p>\n
centre remained closed for two  days after the incident at Red Fort.   The <\/p>\n
investigating agency came to know about the ownership of the `Knowledge <\/p>\n
Plus’ computer center and it was established that the accused Mohd. Arif <\/p>\n
@   Ashfaq   who   was   a   resident   of   Ghazipur,   owned   this   centre.     All   this <\/p>\n
evidence   by   Inspector   Mohan   Chand   Sharma   (PW-229)   went <\/p>\n
unchallenged.  The other witness who had produced the whole record was <\/p>\n
Rajiv   Pandit   (PW-98)   who   proved   the   call   record   and   the   report   to   the <\/p>\n
queries   made   to   him   by   the   investigating   officer.   Exhibit   PW-98\/A   is   the <\/p>\n
information in respect of the mobile number 9811278510 which was active <\/p>\n
from 26.10.2000 to 23.12.2000.  While Exhibit PW-198\/D is the information <\/p>\n
stating that IMEI number 449173405451240 was used by mobile number <\/p>\n
9811278510 and that IMEI number 445199440940240 was  used by both <\/p>\n
mobile numbers, namely, 9811278510 and 9811242154.   There is hardly <\/p>\n
any cross-examination of this witness Rajiv Pandit (PW-198) to dis-believe <\/p>\n
his version.   All this goes to suggest the definite connection between two <\/p>\n
IMEI numbers and the two mobile numbers named above.  It is needless to <\/p>\n
mention that this analysis painstakingly made by Inspector Mohan Chand <\/p>\n
Sharma   (PW-229)   led   the   investigating   team   to   zero   on   the   accused <\/p>\n
                                           43<\/span><\/p>\n
appellant in the night of 25.12.2000.\n<\/p>\n<\/p>\n
30.    It   has   come   in   the   evidence   of   SI   Omwati   (PW-68)   that   she   was <\/p>\n
working as duty officer at police station special cell on 25.12.2000 and on <\/p>\n
that day at about 9.05 a.m. Inspector Mohan Chand Sharma (PW-229) had <\/p>\n
recorded his departure in connection with the case No.688 of 2000 along <\/p>\n
with some other staff.  It has also come in the evidence that on 25.12.2000 <\/p>\n
at about 9.45 p.m. a DD entry was made at the police station special cell <\/p>\n
Ashok Vihar that Inspector Mohan Chand Sharma (PW-229) informed on <\/p>\n
telephone that a suspect by name of Ashfaq Ahmed was about to come at <\/p>\n
the house number 308A, DDA flats, Ghazipur and made a request to send <\/p>\n
some officers.  There is another entry bearing a DD No.10 to the effect that <\/p>\n
Inspector Ved Prakash (PW-173) along with R.S. Bhasin (PW-168), SI Zile <\/p>\n
Singh   (PW-148)   ,   SI   Upender   Singh   (PW-89),   SI   Manoj   Dixit,   WSI <\/p>\n
Jayshree   and   S.I.   Omwati   (PW-68),   Constable   Mahipal   Singh   and   Head <\/p>\n
Constable Rameshwar  (PW-166) having left the police special cell Ashok <\/p>\n
Vihar in pursuance  of the message sent by Mohan Chand Sharma (PW-<\/p>\n
229).     This   has   been   proved   in   the   evidence   of   Inspector   Ved   Prakash <\/p>\n
(PW-173).     It   has   also   come   in   the   evidence   of   Mohan   Chand   Sharma <\/p>\n
(PW-229) that he along with his team was at Ghazipur on 25.12.2000 while <\/p>\n
SI Daya Sagar was deputed at the knowledge plus computer centre along <\/p>\n
with the staff.   He was  informed at about 9.40 p.m. on his mobile phone <\/p>\n
                                             44<\/span><\/p>\n
that Mohd. Arif @ Ashfaq was seen at Batla House and may have left for <\/p>\n
Ghazipur.     He   also   informed   ACP   Rajbir   about   it.     ACP   Rajbir   Singh, <\/p>\n
therefore, fixed 11 p.m. as the time for meeting him at the red light where <\/p>\n
he   reached   along   with   his   staff.     This   has   been   corroborated   by   S.I. <\/p>\n
Omwati   (PW-68)   who   speaks   about   DD   entry   No.10   recorded   at   special <\/p>\n
cell at about 10.15 to the effect that certain special officers had left under <\/p>\n
the   supervision   of   ACP   Rajbir   Singh.     As   per   the   evidence   of   Inspector <\/p>\n
Mohan   Chand   Sharma   (PW-229)   that   a   raid   was   conducted   by   them   at <\/p>\n
11.15   p.m.   at   flat   No.308A,   Ghazipur   and   at   that   time   three   ladies   were <\/p>\n
present.   There it was decided that Ved Prakash would go inside the flat <\/p>\n
and the remaining staff would keep a watch from outside.   This has been <\/p>\n
corroborated by Inspector Ved Prakash (PW-173).   It was at about 12.45 <\/p>\n
a.m.   that   Mohd.   Arif   @   Ashfaq   (appellant   herein)   came   to   the   flat   of <\/p>\n
Ghazipur and knocked at the gate where he was overpowered by the staff <\/p>\n
present.   At that time one pistol 7.63 mouser and six live cartridges were <\/p>\n
recovered from his possession.  He did not have any licence for this pistol. <\/p>\n
A memo of the seizure is Exhibit PW-148\/B proved by sub-Inspector ZIle <\/p>\n
Singh (PW-148).  The entry in the Malkhana register is 32\/XI.  Inspctor Ved <\/p>\n
Prakash   prepared   a   rukka   which   is   Exhibit   (PW-173\/A)   and   a   DD   entry <\/p>\n
bearing number 9A was made at 2.35 a.m. on 26.12.2000 at police station <\/p>\n
Kalyan   Puri.     A   separate   FIR   number   419\/2000   under   Section   25,   Arms <\/p>\n
Act was also registered at police station Kalyan Puri, Delhi.  The FIR is to <\/p>\n
                                              45<\/span><\/p>\n
be found vide Exhibit PW-136B.  The time of occurrence shown in the first <\/p>\n
FIR   is   12.45   a.m.   on   26.12.2000.     This   pistol   was   identified   by   all   the <\/p>\n
recovery   witnesses   and   experts   in   the   Court   while   its   capability   of   being <\/p>\n
fired   has   been   proved   by  Shri   K.C.   Varshney   (PW-211)   the   FSL   expert. <\/p>\n
The pistol is Exhibit PW-148\/1.   At the time of its recovery, the pistol had <\/p>\n
five cartridges in the magazines and one cartridge in the chamber of the <\/p>\n
pistol.   All this has been deposed by SI Zile Singh (PW-148).   It was this <\/p>\n
witness Zile Singh (PW-148) who identified appellant in the Court as also <\/p>\n
proved the recovery of the pistol from his possession.   It was at this time <\/p>\n
after his apprehension that the accused disclosed that his associate Abu <\/p>\n
Shamal   @   Faizal   was   staying   at   his   hide   out   at   G-73,   First   Floor,   Batla <\/p>\n
House, Okhala.  This has come in the evidence of Inspector Mohan Chand <\/p>\n
Sharma   (PW-229).     We   have   absolutely   no   reason   to   dis-believe   this <\/p>\n
evidence of apprehension of the accused by the police team which is also <\/p>\n
supported   by   documentary   evidence.     We   have   also   no   doubt   that   the <\/p>\n
apprehension  of the accused was  possible only because of the scientific <\/p>\n
investigation done by PW-229, Inspector MC Sharma.\n<\/p>\n<\/p>\n
31.     We now consider the argument of the appellant that on the basis of <\/p>\n
the recovery of the piece of paper having Mobile phone No. 9811278510, <\/p>\n
the police did not actually reach the appellant as was their claim.   It was <\/p>\n
argued   by   Ms.   Jaiswal,   learned   counsel   appearing   on   behalf   of   the <\/p>\n
                                           46<\/span><\/p>\n
appellant   that   Inspector   S.K.   Sand   (PW-230)   himself   had   claimed   in   his <\/p>\n
Examination-in-Chief that he had deputed someone to contact the mobile <\/p>\n
phone company ESSAR for the call details of the said mobile number on <\/p>\n
13.2.2001 and obtained the same Vide Exhibit PW-198\/B-1 to 3.   On this <\/p>\n
basis,   the   learned   counsel   claimed   that   the   details   of   the   phone <\/p>\n
conversation on this number as also on other mobile number 9811242154 <\/p>\n
could   not   have   been   known   nor   could   their   connection   with   telephone <\/p>\n
number  2720223  at the  house of  the  appellant  in Ghazipur  or telephone <\/p>\n
number 6315904 at the Computer Centre at Gaffur Nagar be established. <\/p>\n
In  this behalf,  it  was  claimed  that  this  evidence is  directly counter  to the <\/p>\n
evidence   of  Inspector  Mohan   Chand  Sharma   (PW-229)  who   claimed   the <\/p>\n
knowledge   about   interconnection   between   23rd  to   25th  December,   2001. <\/p>\n
The   learned   Solicitor   General,   however,   argued   that   the   evidence   of <\/p>\n
Inspector   Mohan   Chand   Sharma   (PW-229)   could   not   be   faulted   as   he <\/p>\n
claimed  to   have   immediately   collected  all  the  call  details  of   the   said  two <\/p>\n
mobile phone numbers from the computer installed in their office at Lodhi <\/p>\n
Road.     It   was   on   the   basis   of   the   information   received   in   computer <\/p>\n
regarding mobile No. 9811278510 that he established its connection with <\/p>\n
mobile   No.   9811242154   on   the   basis   of   IMEI   number.     The   claim   of <\/p>\n
Inspector   Mohan   Chand   Sharma   (PW-229)   that   he   had   collected   the <\/p>\n
information from his computer earlier to 25.12.2010 was not controverted <\/p>\n
nor do we find any cross-examination to that effect.  It is true that Inspector <\/p>\n
                                            47<\/span><\/p>\n
S.K. Sand (PW-230), the Investigating Officer, had sought the information <\/p>\n
on   13.2.2001,   but   that   does   not   mean   that   Inspector   Mohan   Chand <\/p>\n
Sharma (PW-229) did not have the information earlier.  There was no other <\/p>\n
way otherwise to apprehend the appellant.  It may be that the Investigating <\/p>\n
Officer decided to obtain the details in writing seeking official information <\/p>\n
from the original company and that is why his seeking that information on <\/p>\n
13.2.2001   does   not   affect   the   prosecution   case.     In   our   view,   the <\/p>\n
contention raised by the learned Solicitor General is correct and has to be <\/p>\n
accepted.  It is to be noted that the defence has not refuted the claim of the <\/p>\n
prosecution   that   telephone   No.   2720223   which   was   in   the   name   of <\/p>\n
appellant’s Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A, <\/p>\n
Ghazipur,   where   he   was   residing   alongwith   his   wife   Rehmana   Yusuf <\/p>\n
Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1).   It is <\/p>\n
also   not   the   claim   of   the   defence   that   telephone   No.   6315904   was   not <\/p>\n
installed at the computer centre `Knowledge Plus’ which the appellant was <\/p>\n
running   alongwith   other   person   Faizal   Mohd.   Khan   (PW056).     We, <\/p>\n
therefore, reject the argument of Ms. Jaiswal, learned counsel that on the <\/p>\n
basis of the chit, the investigating agency could not and did not reach the <\/p>\n
appellant on the night of 25.12.2000.\n<\/p>\n<\/p>\n
32.     The other argument raised by Ms. Jaiswal is that in fact there was no <\/p>\n
evidence to show that the appellant in fact did have any mobile phone with <\/p>\n
                                              48<\/span><\/p>\n
him  when   he  was   apprehended.  Secondly,  it  was  argued   that  it   was   not <\/p>\n
proved that the appellant ever owned a mobile phone at all. The learned <\/p>\n
counsel pointed out that when the appellant was apprehended, though he <\/p>\n
was   searched,   all   that   the   raiding   party   recovered   was   a   pistol   and   that <\/p>\n
there   is   no   mention   of   the   recovery   of   Motorola   mobile   phone   bearing <\/p>\n
number 9811278510.  The learned counsel was at pains to point out that it <\/p>\n
was during his second search after about six hours that the mobile phone <\/p>\n
was   shown   to   have   been   recovered.     This,   according   to   the   learned <\/p>\n
counsel,   is   nothing   but   a   concoction.     Ms.   Jaiswal   also   pointed   out   that <\/p>\n
there was a substantial delay in formally arresting the appellant and also <\/p>\n
recovering other articles from his person.\n<\/p>\n<\/p>\n
33.     We   shall   consider   the   second   contention   first.   In   this   behalf,   the <\/p>\n
learned   Solicitor   General   relied   on   the   evidence   of   Faizal   Mohd.   Khan <\/p>\n
(PW-56), who  was  also a tenant in the house of Nain Singh (PW-20).   It <\/p>\n
has come in his evidence that the appellant was also residing as a tenant <\/p>\n
for some time before this incident took place.  He has also pointed out that <\/p>\n
one Adam Malik (PW-31) used to reside in the house of Nain Singh (PW-<\/p>\n
20)  and it  was  he who  had  brought the  appellant with  him in May,  2000 <\/p>\n
and got him one room in that house.  As per the evidence of Faizal Mohd. <\/p>\n
Khan (PW-56), it was Azam Malik (PW-31) who had introduced him to the <\/p>\n
appellant.  He was the one alongwith whom the appellant had then opened <\/p>\n
                                                49<\/span><\/p>\n
a computer centre by the name of `Knowledge Plus’ at 18-C, Gaffur Nagar <\/p>\n
and   for   opening   that   centre,   he   had   invested   Rs.70,000\/-   while   the <\/p>\n
appellant had invested 1,70,000\/- for purchasing computer from one Khalid <\/p>\n
Bhai.     This   part   of   the   evidence   is   also   admitted   by   the   appellant   in   his <\/p>\n
statement   under   Section   313   Cr.P.C.     He,   however,   claimed   in   that <\/p>\n
statement   that   he   had   paid   lesser   amount.     Faizal   Mohd.   Khan   (PW-56) <\/p>\n
needed a telephone for their computer centre but since they did not have <\/p>\n
ration   card,   he   (PW-56)   spoke   to   his   cousin   Danish   Mohd.   Khan   and <\/p>\n
requested him to get one telephone installed at their computer centre with <\/p>\n
the help of his identity card and that is how Danish Mohd. Khan had got <\/p>\n
installed a telephone in his own  name at the `Knowledge Plus’ computer <\/p>\n
centre.   The learned Solicitor General pointed out that this evidence has <\/p>\n
remained   unchallenged.     It   is   further   argued   that   the   evidence   of   Faizal <\/p>\n
Mohd.   Khan   (PW-56)   establishes   that   the   appellant   had   a   mobile   phone <\/p>\n
also.     It   is   significant   that   admittedly,   this   witness   was   a   partner   of   the <\/p>\n
appellant   in   the   computer   centre.     The   claim   of   this   witness   that   the <\/p>\n
appellant   had   a   mobile   phone,   was   not   even   challenged   during   his <\/p>\n
examination.    From  this the  learned Solicitor General argued  and,  in our <\/p>\n
opinion, rightly, that the appellant used to have a mobile phone with him. <\/p>\n
The   learned   Solicitor   General   further   pointed   out   that   this   piece   of <\/p>\n
evidence   is   then   corroborated   by   the   evidence   of   Aamir   Irfan   Mansoori <\/p>\n
(PW-37),  who  was  also  a tenant  with  the  appellant  in the  house  of Nain <\/p>\n
                                                50<\/span><\/p>\n
Singh (PW-20).   He had also deposed that the appellant used to have a <\/p>\n
mobile   phone.     The   Solicitor   General   pointed   out   that   there   was   no <\/p>\n
challenge   to   the   evidence   of   Aamir   Irfan   Mansoori   (PW-37),   particularly, <\/p>\n
about his assertion that the appellant did have a mobile phone.  From this, <\/p>\n
the learned Solicitor General argued that it is an established position that <\/p>\n
in   the   past,   the   appellant   used   to   have   a   mobile   phone.     Similar   is   the <\/p>\n
evidence of Rashid Ali (PW-232), who was also a resident in the house of <\/p>\n
Nain Singh (PW-20).  It is significant to note that this witness claimed that <\/p>\n
on   8.12.2000,   he   was   taken   by   the   appellant   for   an   Iftar   party   in   the <\/p>\n
evening.     However,   there   the   appellant   got   married   to   Rehmana   on <\/p>\n
8.12.2000   in   the   evening.     This   shows   the   proximity   of   the   witness.     He <\/p>\n
further deposed that the appellant had a mobile phone.  Even this witness <\/p>\n
was not cross-examined regarding the availability of the mobile phone with <\/p>\n
the appellant.  We have no reason to disbelieve the above three witnesses <\/p>\n
and, therefore, we hold that it was established by the prosecution that the <\/p>\n
appellant used to have a mobile phone.\n<\/p>\n<\/p>\n
34.     Once   this   position   is   clear,   then   it   has   to   be   seen   as   to   why   the <\/p>\n
mobile phone was not taken in possession by the raiding party when they <\/p>\n
actually   apprehended   the   appellant   and   whether   at  that   time   he   had   the <\/p>\n
mobile phone at all.  The learned Solicitor General argued that the raiding <\/p>\n
party had gone to Flat No. 308-A, Ghazipur to nab a suspected terrorist. <\/p>\n
                                             51<\/span><\/p>\n
This   was   on   the   basis   of   the   information   gathered   by   Inspector   Mohan <\/p>\n
Chand Sharma (PW-229).   The learned Solicitor General argued that the <\/p>\n
raiding party had to ensure that once they nabbed the terrorist, he should <\/p>\n
be disarmed first.  This was necessary for the safety of the public at large <\/p>\n
and,   therefore,   when   the   raiding   party   found   and   nabbed   the   appellant, <\/p>\n
they first removed his fire arm and started digging further information about <\/p>\n
any   other   terrorist   who   was   the   partner   of   the   appellant   and,   therefore, <\/p>\n
when   the   appellant   disclosed   about   the   other   hide-out   at   G-73,   Muradi <\/p>\n
Road, Batla House, in order to avoid any further loss of life and harm to the <\/p>\n
general   public  and   also  for  preventing   the  said  suspect  from   fleeing,   the <\/p>\n
raiding   party   took   the   appellant   to   the   Batla   House   almost   immediately. <\/p>\n
The   learned   Solicitor   General,   therefore,   argued   that   considering   the <\/p>\n
seriousness   of   the   situation   and   further   considering   the   element   of   very <\/p>\n
little time at the disposal of the raiding party, the appellant was immediately <\/p>\n
taken to Batla House, where a full fledged encounter took place resulting in <\/p>\n
death   of   Abu   Shamal,   another   terrorist   as   also   in   recovery   of   lethal <\/p>\n
weapons   like   an   AK-47   rifle   and   hand   grenades.     The   learned   Solicitor <\/p>\n
General   explained   the   so-called   delay   caused   in   recovery   of   the   mobile <\/p>\n
phone   from   the   appellant.     He   also   argued   that   the   expediency   of   the <\/p>\n
matter required stopping these terrorists from inflicting further harm to the <\/p>\n
innocent society and, therefore, investigating agency had to move with the <\/p>\n
break-neck speed which they actually did instead of wasting their time in <\/p>\n
                                              52<\/span><\/p>\n
writing   the   Panchnamas   of   discovery   and   recovery   etc.     The   learned <\/p>\n
Solicitor   General   further   argued   that   the   very   fact   that   there   was   an <\/p>\n
encounter   in   Batla   House,   the   location   of   which   was   known   only   to   the <\/p>\n
appellant,   establishes   the   necessity   for   quick   reaction   on   the   part   of   the <\/p>\n
investigating agency.   In our opinion, this explanation is quite satisfactory <\/p>\n
to   reject   the   argument   raised   by   learned   defence   counsel.     We   have, <\/p>\n
therefore,  no hesitation to hold that after the appellant was  apprehended <\/p>\n
on the night of 25.12.2000, the investigating agency recovered not only the <\/p>\n
pistol, but a mobile phone bearing number 9811278510 which was with the <\/p>\n
appellant.\n<\/p>\n<\/p>\n
35.     Ms.   Jaiswal   also   argued   that   the   investigating   agency   had   seized <\/p>\n
only the mobile instrument bearing No.9811278510  but not the SIM card <\/p>\n
and  that  was  an extremely suspicious  circumstance.    It is to be noted in <\/p>\n
this  behalf  that   the  instrument  was  seized   in  the  morning  of  26.12.2000. <\/p>\n
The   analysis   of   the   telephone   calls   shows   that   the   above   mentioned <\/p>\n
number did not work after 16.50 hours on 23.12.2000.   Thus this number <\/p>\n
was   inactive   on   24th  and   25th  December.     Ms.   Jaiswal   argued   that   the <\/p>\n
phone might have  been sold or at least  would  have  changed  hands and <\/p>\n
did   not   directly   connect   the   appellant   with   the   call   made   to   the   BBC <\/p>\n
correspondent immediately after the attack.  In this behalf, learned Solicitor <\/p>\n
General relied on the evidence of Rajiv Pandit (PW-198).   He pointed out <\/p>\n
                                             53<\/span><\/p>\n
that the record regarding the SIM No 0006680375 did not exist.   Learned <\/p>\n
Solicitor   General   further   argued   that   the   letter   dated   20.2.2001   of   the <\/p>\n
police Exhibit PW-114\/XV clearly showed that the said SIM was activated <\/p>\n
and an application in that behalf also made before the Court to un-seal the <\/p>\n
case   property   so   as   to   examine   whether   the   SIM   card   number   was <\/p>\n
correctly noted in the seizure memo Exhibit PW-59\/XIV or not.  It has to be <\/p>\n
seen   that   the   number   of   cash   card   and   the   one   found   on   the   SIM   vide <\/p>\n
Exhibit   PW-62\/XIV   were   the   same.     The   learned   Solicitor   General, <\/p>\n
therefore,   argued   that   the   SIM   card   found   in   the   telephone   was   not <\/p>\n
activated   and,   therefore,   there   was   no   record   available.     However, <\/p>\n
according to the Solicitor General, it has been proved that the instrument <\/p>\n
number   4491713405451240   was   on   the   cell   phone   recovered   from   the <\/p>\n
appellant.     In   that   behalf,   reliance   was   placed   on   the   evidence   of   S.I. <\/p>\n
Harender  Singh (PW-194), SI Zile  Singh  (PW-148) and Inspector  Mohan <\/p>\n
Chand   Sharma   (PW-229).     From   this,   according   to   the   learned   Solicitor <\/p>\n
General,  the prosecution  had established  that but  for the mobile  number <\/p>\n
which   was   collected   on   the   basis   of   the   chit,   it   was   not   possible   to <\/p>\n
apprehend   the   appellant   at   all.     He   further   argued   that   the   very   same <\/p>\n
instrument   which   has   been   recovered   from   the   appellant   was   used   for <\/p>\n
calling   BBC   correspondent   immediately   after   the   attack   and   it   was   also <\/p>\n
argued that the location of the instrument at that time was in the vicinity of <\/p>\n
Red   Fort.     There   is   considerable   force   in   the   submission   made   by   the <\/p>\n
                                             54<\/span><\/p>\n
learned   Solicitor   General.     The   depositions   of   the   prosecution   witnesses <\/p>\n
mentioned above, in our opinion, leave no doubt whatsoever in our minds <\/p>\n
that mobile number 9811278510 was used in the instrument having IMEI <\/p>\n
No.449173405451240 immediately after the attack.\n<\/p>\n<\/p>\n
36.    This   takes   us   to   the   telephonic   conversation   in   which   the   two <\/p>\n
aforementioned   cell   phones   with   two   IMEI   numbers   were   used   which <\/p>\n
create a complete link between the appellant and the crime.  In this behalf <\/p>\n
the first witness is Altaf Hussain (PW-39) who was the BBC correspondent <\/p>\n
based   in   Srinagar   and   who   claimed   that   sometimes   the   militant <\/p>\n
organizations   used   to   give   him   information   claiming   responsibility   of   any <\/p>\n
terrorist   acts.     On   22.12.2000   he   had   received   a   call   on   his   land   line <\/p>\n
No.2452918.   He deposed that the caller told him that the incident inside <\/p>\n
the Red Fort had been carried out by them and claimed in vernacular `do  <\/p>\n
daane daal diye hain’.   The caller also claimed himself to be belonging to <\/p>\n
Lashkar e Toiba.   When he asked as to what it meant by  Do daane daal  <\/p>\n
diye hain, he was told by the caller that it was a Fidayeen attack and that <\/p>\n
they had attacked Army personnel.   On this, the witness told the caller to <\/p>\n
contact   Delhi   BBC   office   and   also   gave   the   telephone   number   of   BBC, <\/p>\n
Delhi to him.   The  wife  of this witness  Ms. Naznin Bandey (PW-40) also <\/p>\n
deposed that Mr. Altaf Hussain was her husband and the aforementioned <\/p>\n
telephone   number   2452918   was   in   her   name   and   the   same   was   being <\/p>\n
                                             55<\/span><\/p>\n
used by her husband also.   This call was made almost immediately after <\/p>\n
the attack which took place at about 9.25 p.m.  His further evidence is that <\/p>\n
one   Ayanjit   Singh   (PW-41)   was   a   BBC   correspondent   in   Delhi.   Ayanjit <\/p>\n
Singh (PW-41) was having a telephone number 011 3355751 on which he <\/p>\n
received a telephone  call between  9-9:30 p.m.  and someone  claiming to <\/p>\n
be belonging to Lashkar-e-Toiba told him that they had attacked the Red <\/p>\n
Fort.     When   the   witness   asked   as   to   from   where   he   was   speaking,   the <\/p>\n
witness was told by the caller that he was calling from inside the Red Fort. <\/p>\n
He also told that they had killed two persons.  The caller refused to identify <\/p>\n
himself.   This call remained for 2-3 minutes.  Shri Satish Jacob (PW-150) <\/p>\n
corroborated   this   version   of   Ayanjit   Singh   (PW-41)   to   the   effect   that   on <\/p>\n
22.12.2000 about 9 p.m. Ayanjit Singh who was a Desk Editor in the Delhi <\/p>\n
office had received relevant call and had informed his colleagues also.  He <\/p>\n
also confirmed that Altaf Hussain (PW-39) was the BBC correspondent in <\/p>\n
Srinagar.   These call records were  searched by the investigating agency <\/p>\n
and   were   duly   proved   by   the   prosecution.     It   has   already   come   in   the <\/p>\n
earlier part of the judgment that it was on 13.2.2001 that request for supply <\/p>\n
of information regarding mobile number 9811278510 was made vide letter <\/p>\n
Exhibit  PW-230\/K.    By another  letter  Exhibit  PW-230\/N  dated 27.1.2001, <\/p>\n
General Manager, MTNL was requested to give details of the subscribers <\/p>\n
of the telephone No. 011  3355751 which  was  the number of BBC Delhi, <\/p>\n
telephone   No.   2720223   belonging   to   Farzana   Faruqui   and   installed   at <\/p>\n
                                             56<\/span><\/p>\n
Ghazipur   at   the   residence   of   appellant   and   telephone   No.6315904 <\/p>\n
belonging to Danish Mohd. Khan which was fixed at computer centre.  The <\/p>\n
prosecution   proved   that   letter   and   the   records   through   the   witnesses.     It <\/p>\n
has   come   in   the   evidence   that   on   14.2.2001,   the   call   details   of <\/p>\n
9811278510 were furnished along with cell ID list by way of letter Exhibit <\/p>\n
PW-198\/E and those call details were  also duly proved vide Exhibit PW-<\/p>\n
198\/B1-3.  A further letter dated 20.2.2001 was proved by the prosecution <\/p>\n
to have been written to the General Manager,  ESSAR  cell phone for the <\/p>\n
information   in   respect   of   the   aforesaid   mobile   instrument   bearing   IMEI <\/p>\n
No.445199440940240   and   44917340545120.     In   this   letter,   it   was <\/p>\n
specifically   asked   as   to   against   which   mobile   number   the   speed   card <\/p>\n
No.0006680375   was  activated.     Rajiv  Pandit   (PW-198)  deposed  that  the <\/p>\n
details   were   already   furnished   on   14.2.2001   in   respect   of   9811278510 <\/p>\n
while the speed card details of the No.0006680375 were not available in <\/p>\n
the records.   The relevant documents are Exhibit PW-198\/E in respect of <\/p>\n
cell   No.9811242154.     The   evidence   of   Rajiv   Pandit   went   almost <\/p>\n
unchallenged.          His   assertion   that   he,   as   a   General   Manager <\/p>\n
(Administration),   of   ESSAR   Cell   Phones   had   provided   the   relevant <\/p>\n
information of call details to Inspector Surender Sand in respect of mobile <\/p>\n
No.9811278510,   has   gone   unchallenged.     From   his   evidence,   it   stands <\/p>\n
proved   that   calls   were   made   to   BBC   correspondent   from   cell <\/p>\n
No.9811278510   on 22.12.2000  at 9.27  p.m. and  two  calls were  made to <\/p>\n
                                             57<\/span><\/p>\n
BBC, Delhi No.3355751 at 9.50 p.m.   He also established that when  the <\/p>\n
call   was   made,   the   location   of   caller,   as   per   mobile   details,   was   at <\/p>\n
Kashmere Gate whereas from the second call, the location was Chandni <\/p>\n
Chowk.     This   evidence   is   also   corroborated   by   the   evidence   of   Mohan <\/p>\n
Chand   Sharma   (PW-229)   who   located   the   two  IMEI   numbers   mentioned <\/p>\n
above and he also confirmed that as per the information collected by him <\/p>\n
two   calls   were   made   to   BBC   offices   one   in   Srinagar   and   one   in   Delhi. <\/p>\n
There is absolutely nothing to dis-believe this version and, therefore, it is <\/p>\n
clear   that   telephone   No.9811278510   was   used   on   the   relevant   date   on <\/p>\n
22.12.2000 for claiming the responsibility of the attack in Red Fort.  When <\/p>\n
call   was   made   the   IMEI   number   was   449173405451240.     This   situation <\/p>\n
almost clinches the issue.\n<\/p>\n<\/p>\n
37.    The corroboration to the fact that a message was received by BBC <\/p>\n
Delhi   telephonically   regarding   the   attack   on   Red   Fort   on   22.12.2000   at <\/p>\n
about 9 O’ Clock at night is to be found in the evidence of Satish Jacob <\/p>\n
(PW-150) who proved Exhibit PW-150\/B.  There is no cross examination of <\/p>\n
the   witness   on   this   aspect.     The   prosecution,   therefore,   is   successful   in <\/p>\n
establishing that the cell phone No.9811278510 was used for making the <\/p>\n
calls to Srinagar, BBC correspondent as also to the BBC correspondent in <\/p>\n
Delhi.  In these calls, the caller who was handling that cell phone not only <\/p>\n
informed   about   the   attack   on   the   Red   Fort   but   also   owned   the <\/p>\n
                                            58<\/span><\/p>\n
responsibility   of   Lashkar-e-Toiba   therein.     These   call   details   have   been <\/p>\n
proved   by   Rajiv   Pandit   (PW-198)   whose   evidence   we   have   already <\/p>\n
referred to earlier, vide Exhibit PW 198\/B1 to B3.  The inter se connection <\/p>\n
in between  this cell phone and cell phone No.9811242154 is also clearly <\/p>\n
established   by   the   witness   Rajiv   Pandit   (PW-198)   on   the   basis   of   IMEI <\/p>\n
number used in that cell phone.   He had also established that these calls <\/p>\n
to the BBC were made from the vicinity of the Red Fort.  While the call to <\/p>\n
Srinagar was made from Chandni Chowk, the second call was made from <\/p>\n
behind the Red Fort.  It has already come in the earlier discussion that the <\/p>\n
information received from the analysis of the cell phone records particularly <\/p>\n
of cell No. 9811242154 along with its IMEI number came very handy to the <\/p>\n
investigating   team   for   further   establishing   the   connection   in   between   the <\/p>\n
landline   telephones   which   were   at   the   computer   centre   owned   by   the <\/p>\n
appellant at Ghazipur which  number was  in the name of his sister-in-law <\/p>\n
Farzana   Farukhi   and   where   the   appellant   lived   with   his   wife   Rehmana <\/p>\n
Farukhi.  Ms. Jaiswal took us thoroughly through the cross examination of <\/p>\n
this witness and pointed out that on the basis of Exhibit PW-198\/DA, there <\/p>\n
were some contradictory entries in Exhibit PW-198\/DA and the other data <\/p>\n
proved   by   the   witness.     We   are   not   impressed   by   this   argument   firstly <\/p>\n
because  there is  nothing to show that  this is an authenticated  document <\/p>\n
and   though   Ms.   Jaiswal   claimed   that   this   document   was   supplied   to   the <\/p>\n
accused by the prosecution, there is nothing to support such a claim.  We, <\/p>\n
                                              59<\/span><\/p>\n
have, therefore, no hesitation in rejecting Exhibit PW-198\/DA.  Ms. Jaiswal <\/p>\n
then   pointed   out   that   in   Exhibit   PW-198\/E,   there   were   certain <\/p>\n
discrepancies.  The witness had actually explained those discrepancies by <\/p>\n
asserting   “if  the  computer  has   reversed   at  some  point,  it   may  be   due   to <\/p>\n
technical   fault”.     It   is   quite   understandable   that   there   could   be   some <\/p>\n
technical   problems   in   the   computer.     We   have   gone   through   the   whole <\/p>\n
cross   examination  very  carefully  but   we  do   not   find   any  reason   to   reject <\/p>\n
Exhibit PW-198\/E.  In our opinion, the insignificant irregularities brought in <\/p>\n
the cross examination would not call for rejection of the document and the <\/p>\n
evidence.  We, therefore, accept that cell phone No.9811278510 was used <\/p>\n
at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the <\/p>\n
day   when   the   attack   took   place   at   or   about   the   same   time   on   Red   Fort <\/p>\n
wherein three innocent persons were killed.  We also confirm the finding by <\/p>\n
the trial Court and the appellate Court that it was this mobile number which <\/p>\n
was found with the appellant when he was arrested. We have already held <\/p>\n
that the theory that this mobile number belonged to the prosecution and it <\/p>\n
was   planted   on   the   appellant   is   not   only   farfetched   but   totally   un-<\/p>\n
believable.    We have  also  explained the delay in recovery of this mobile <\/p>\n
number   from   the   accused   on   the   basis   of   its   IMEI   number.     The   other <\/p>\n
corroborating   evidence   connecting   the   two   mobile   numbers   namely, <\/p>\n
9811278510   and   9811242154   and   the   IMEI   Nos.44519944090240   and <\/p>\n
449173405451240 and their interconnection with  phone No.011 3355751 <\/p>\n
                                              60<\/span><\/p>\n
of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and <\/p>\n
phone   No.6315904   at  computer  centre  is   to  be  found  in  the  evidence  of <\/p>\n
Rajiv   Pandit   (PW-198),   Inspector   Mohan   Chand   Sharma   (PW-229)   and <\/p>\n
Inspector S.K.Sand (PW-230).  The attempt of the investigating agency in <\/p>\n
analyzing the call details of these two numbers succeeded in establishing <\/p>\n
the   connection   of   these   two   numbers   with   the   number   of   BBC <\/p>\n
correspondent at Srinagar, the number of BBC correspondent at Delhi, the <\/p>\n
number  at Farzana Farukhi’s residence  and  the  number  at the computer <\/p>\n
centre   in   the   name   of   Danish   Mohd.   Khan.     But   for   this   careful   and <\/p>\n
meticulous analysis  which  was  of very high standards,  it  would  not have <\/p>\n
been possible to apprehend the appellant and to de-code the intricate and <\/p>\n
complicated   maze  of  the   conspiracy.    The   timing  of  the   calls made  from <\/p>\n
this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi <\/p>\n
bearing No.011 3355751 are significant.  It will be seen that the calls made <\/p>\n
to   Srinagar   were   at   7.41   p.m.,   7.42   p.m.   and   9.27   p.m.   while   the   calls <\/p>\n
made to BBC, Delhi were  at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m. <\/p>\n
Again, while the calls to Srinagar were made from the front side of the Red <\/p>\n
Fort, the other calls were made from the back side of the Red Fort which <\/p>\n
establishes   the   presence   of   this   mobile   phone   in   close   proximity   to   Red <\/p>\n
Fort when the calls were made.  That is a very significant aspect.<\/p>\n
                                             61<\/span><\/p>\n
38.    All this evidence would leave no option for us except to accept the <\/p>\n
prosecution’s contention that this cell phone No.9811278510 and the other <\/p>\n
phone   No.   9811242154   as   also   the   two   IMEI   numbers   were   extremely <\/p>\n
significant aspects.\n<\/p>\n<\/p>\n
39.    The   next   circumstance   which   makes   these   mobile   cell   phones <\/p>\n
significant was the evidence of PW-229, Inspector Mohan Chand Sharma <\/p>\n
when he asserted that this mobile No.9811278510 was constantly used on <\/p>\n
14.11.2000 from Zakir Nagar area.  The witness claimed this on the basis <\/p>\n
of the cell ID.  It is to be seen that when the said mobile was used its IMEI <\/p>\n
No.   was   445199440940240   and   the   witness   further   asserted   that   during <\/p>\n
this   period   phone   calls   from   this   number   were   made   to   Pakistan.     The <\/p>\n
witness   explains   that   on   11.12.2000,   the   IMEI   number   was   changed   to <\/p>\n
449173405451240   and   a   telephone   call   was   made   from   this   number   to <\/p>\n
0116315904  which  is the landline number of computer centre run by the <\/p>\n
appellant.     The   making   of   the   calls   to   Pakistan   is   extremely   significant. <\/p>\n
This witness also explained in his evidence as to how on the basis of the <\/p>\n
cell   ID   and   the   call   record   of   the   two   mobile   cell   phones,   namely, <\/p>\n
9811278510 and 9811242154 they zeroed on the location of the accused. <\/p>\n
This   witness   has   explained   that   the   earlier   mentioned   IMEI   number <\/p>\n
445199440940240   was   also   used   in   the   second   mobile   number <\/p>\n
9811242154.   In his examination in chief, this witness has explained that <\/p>\n
                                              62<\/span><\/p>\n
the   calls  were   received   and   made   from   and   to   this   number   9811242154 <\/p>\n
from Zakir Nagar and Ghazipur.   He also asserted in his conclusion that <\/p>\n
the   cell   ID   of   mobile   number   9811242154   was   at   Zakir   Nagar   when   the <\/p>\n
calls   were   made   to   Ghazipur   and   the   cell   ID   was   at   Ghazipur   when   the <\/p>\n
calls   were   received   on   Zakir   Nagar.     This   he   said   on   the   basis   of   the <\/p>\n
computer installed in their office.   The witness also explained that the call <\/p>\n
details of the telephone number 9811242154 was collected from the official <\/p>\n
computer and he also proved the document Exhibit PW-229 A which data <\/p>\n
pertained to the period 22.7.2000 to 19.11.2000.   He also connected the <\/p>\n
two telephones by saying that the calls were made on 8.9.2000 at about <\/p>\n
11.37.53 hours to pager No.1949696 from both these mobile cell phones. <\/p>\n
He then asserted about the user of cell phone number 9811278510 on the <\/p>\n
day   when   the   attack   took   place.     He   also   established   the   connection   of <\/p>\n
landline   No.2720223   at   Ghazipur   which   stood   in   the   name   of   Farzana <\/p>\n
Farukhi   and   another   number   6315904   which   was   a   landline   number   at <\/p>\n
Knowledge   Plus   Computer   Centre   run   by   the   appellant.     It   was   on   the <\/p>\n
basis   of   the   caller   ID   that   the   investigating   team   zeroed   on   these   two <\/p>\n
points.  We do not see any reason to dis-believe this witness.  The calls to <\/p>\n
Pakistan   from   the   concerned   numbers   is   a   very   significant   circumstance <\/p>\n
particularly   because   the   appellant   is   admittedly   a   Pakistani   national   and <\/p>\n
was staying in India unauthorizedly.\n<\/p>\n
\n                                              63<\/span><\/p>\n
40.     The witness also asserted on the basis of Exhibit PW-198\/B1 to B3 <\/p>\n
that there were  calls made on 20.12.2000  to 22.12.2000 in which calling <\/p>\n
number   could   not   be   recorded   as   the   calls   were   made   from   Pakistan   to <\/p>\n
India.     He   explained   it   that   during   those   days   clipping   facility   was   not <\/p>\n
available in India with Pakistan.  He explained clipping facility to be Calling <\/p>\n
Line   Identification   facility.     He   has   further   asserted   that   these   calls   from <\/p>\n
Pakistan were received on mobile number 9811278510 when that mobile <\/p>\n
number   was   at   Jamia   Nagar,   New   Friends   Colony,   Kashmere   Gate   and <\/p>\n
Chandni Chowk and he further asserted that on 22.12.2000 when the calls <\/p>\n
were received on 14.32 i.e. at 2.32 p.m. the position of the mobile was at <\/p>\n
Darya Ganj.   He also further explained that when the call was made from <\/p>\n
this  number   9811278510   on  22.12.2000  at  7.41   p.m.  the   location  of  this <\/p>\n
number could be inside the Red Fort.  Similarly he asserted about the calls <\/p>\n
having been made from this number at 8.24 p.m. when this telephone was <\/p>\n
at   Kashmere   Gate   i.e.   towards   the   back   of   Red   Fort.     He   also   asserted <\/p>\n
about the calls having been made from this number to BBC, Delhi when <\/p>\n
the location of cell phone was behind the back of Red Fort.   Similarly, he <\/p>\n
spoke  about the call having been made  to  BBC,  Srinagar on its  landline <\/p>\n
number from the same position when the cell phone caller was behind the <\/p>\n
back of the Red Fort. He also further asserted that on the same day i.e. on <\/p>\n
22.12.2000  the  calls were  received  on  this cell phone  number  when  this <\/p>\n
cell phone number was at Jamia Nagar and that the cell phone remained <\/p>\n
                                               64<\/span><\/p>\n
in the same position at Jamia Nagar constantly.  There is no reason for us <\/p>\n
to dis-believe this evidence which was collected so painstakingly.  What is <\/p>\n
most  significant  in  this evidence  is  that  this very cell phone  number  was <\/p>\n
used to make the calls to and receive the calls from Pakistan.<\/p>\n
41.     The   next   significant   circumstance   is   the   evidence   of   Inspector <\/p>\n
J.S.Chauhan of BSF (PW-162).   He was posted at Rajouri on 26.12.2000 <\/p>\n
and  on  that   day  a  message   was  intercepted   by  BSF   to   the  effect  that  a <\/p>\n
wanted   militant   in   the   shoot-out   inside   Red   Fort   case   known   as   Ashfaq <\/p>\n
Ahmed   was   apprehended   while   other   militant   Abu   Shamal   was   killed. <\/p>\n
According   to   this   witness   this   message   was   being   passed   by   LeT   by   a <\/p>\n
militant   called   Abu   Sakar   to   a   station   in   Khyber   in   Pakistan   Occupied <\/p>\n
Kashmir.     He   proved   the   handwriting   of   one   B.S.   Virk   DIG   (West)   and <\/p>\n
proved the document as Exhibit PW-162A.  The other witness on this point <\/p>\n
is Constable Suresh Kumar, BSF Head Quarters Srinagar (PW-175).   He <\/p>\n
was the one who intercepted the message on his wireless set to the effect <\/p>\n
that Delhi police had killed one militant Shamal Bhai and one more militant, <\/p>\n
namely,   Abu   Hamad   Hazarvi   whose   real   name   was   Ashfaq   was <\/p>\n
apprehended.   The message also suggested that militant Bilal Babar was <\/p>\n
successful   in   running   away   and   was   hiding   in   Delhi   in   his   hide   out.     He <\/p>\n
asserted that he passed this message to the senior officers.   In his cross <\/p>\n
examination, it has come that it was not a coded message and the same <\/p>\n
                                            65<\/span><\/p>\n
was being conveyed in Urdu.   A very funny suggestion has been given to <\/p>\n
this witness that it was  a coded message meaning thereby the factum of <\/p>\n
message was admitted.       In his cross examination at the instance of the <\/p>\n
appellant the witness  asserted that the message was  being passed from <\/p>\n
Srinagar though he was unable to locate the exact point of the wireless set <\/p>\n
from   which   it   was   being   sent.     There   is   hardly   any   cross   examination. <\/p>\n
Significantly, there is a reference to one Abu Bilal in the said intercepted <\/p>\n
message.     Very   significantly,   it   has   come   in   the   evidence   of   Inspector <\/p>\n
Pratap Singh (PW-86) and the evidence of S.K.Sand (PW-230) that when <\/p>\n
the   appellant   was   apprehended   and   his   wallet   was   checked,   a   negative <\/p>\n
was recovered from the wallet which was said to be of Abu Bilal.   In fact <\/p>\n
Inspector   S.K.   Sand   (PW-230)   got   this   negative   developed   into   a <\/p>\n
photograph.  He then asserted that the said Abu Shamal who was involved <\/p>\n
in   the   Red   Fort   shoot   out   case   had   died   and   an   FIR   No.9\/2002   police <\/p>\n
station Special Cell was registered in this behalf.  The said Abu Bilal was a <\/p>\n
proclaimed   offender   in   FIR   No.688   of   2000   Police   Station   Kotwali,   Delhi <\/p>\n
and  as per the  evidence of Mohan Chand Sharma he was  subsequently <\/p>\n
killed   in   an   encounter.     All   this   voluminous   evidence   would   not   only <\/p>\n
corroborate the prosecution version to show the significant role played by <\/p>\n
the appellant in handling both the cell phone numbers mentioned above.  It <\/p>\n
is  of no minor significance that  on the apprehension of the appellant  the <\/p>\n
news should reach Srinagar and from there to Pakistan Occupied Kashmir <\/p>\n
                                            66<\/span><\/p>\n
by   way   of   wireless   messages   not   only   about   the   involvement   of   the <\/p>\n
appellant but also about Abu Shamal who was killed in the encounter as <\/p>\n
also   Abu   Bilal   who   was   a   proclaimed   offender   and   was   then   killed   in <\/p>\n
another encounter.\n<\/p>\n<\/p>\n
42.    There   is   also   some   material   brought   by   the   prosecution   about   the <\/p>\n
calls from these numbers to one Sher Zaman who is said to be a Hawala <\/p>\n
dealer.     The   investigating   agency   raided   the   house   of   Sher   Zaman   on <\/p>\n
12.01.2001.     This   was   on   account   of   the   information   received   by   the <\/p>\n
investigating   agency   from   the   appellant.     In   that   raid,   a   sum   of <\/p>\n
Rs.1,11,100\/-   was   found   at   the   said   house   and   certain   other   documents <\/p>\n
like diaries were  also found which were  seized under the seizure memo. <\/p>\n
Mohd. Idrish (PW-74) who was the President of Dila Ram Afgani Market, <\/p>\n
Ballimaran   Delhi   has   proved   the   seizure.     The   fact   that   the   calls   were <\/p>\n
made from cell phone 9811278510  were  made by Mohd. Arif @ Ashfaq, <\/p>\n
the appellant, to the telephone No.3969561 was established by Kashi Nath <\/p>\n
(PW-46)   who   was   representative   of   MTNL.     He   proved   that   this   number <\/p>\n
was installed by him in premises No.5123, Sharif Manjil and that was the <\/p>\n
office   of   Sher   Zaman.     This   evidence   was   also   corroborated   by   Om <\/p>\n
Prakash   (PW-46).     Very   significantly,   the   documents   seized   at   Sher <\/p>\n
Zaman’s   office   included   a   Visa   of   Islamic   Republic   of   Pakistan   and   an <\/p>\n
identity card of NIIT etc.  The seizure memo is proved by R.K. Ajwani (PW-<\/p>\n
                                           67<\/span><\/p>\n
83).     He   was,   at   the   relevant   time,   working   in   the   Directorate   of <\/p>\n
Enforcement   as   the   Chief   Enforcement   Officer   and   deposed   that   the <\/p>\n
appellant in his presence identified the photograph to be of Sher Zaman @ <\/p>\n
Shabbir and accepted that he used to deliver hawala money.  The visa slip <\/p>\n
of   Islamic   Republic   of   Pakistan   was   proved   and   marked   as   Exhibit   PW-<\/p>\n
83\/P1   and   NIIT   card   No.1235-00304   with   a   photograph   of   Sher   Zaman <\/p>\n
was   proved   and   marked   as   Exhibit   PW-83\/P2.     There   were   some   other <\/p>\n
documents proved by this witness.  The cross examination of this witness <\/p>\n
is also lackluster.  Therefore, this evidence is also extremely significant to <\/p>\n
support the role played by the appellant in the conspiracy.<\/p>\n
43.    Even at the cost of repetition, we may mention that immediately after <\/p>\n
the appellant was apprehended with a pistol and the live rounds he spilled <\/p>\n
the beans and gave information about his other associate Abu Shamal on <\/p>\n
the basis of which information the investigating team reached G-73, Batla <\/p>\n
House at about 3.15 a.m.   This is deposed to by Inspector Mohan Chand <\/p>\n
Sharma.     The   house   was   locked.     The   investigating   team   lay   there   and <\/p>\n
waited and at about 5.10 a.m. a man resembling the description given by <\/p>\n
the   appellant   entered   the   house.     The   house   was   knocked   at   and   the <\/p>\n
police disclosed their identity but the same was not opened and therefore, <\/p>\n
it had to be opened by the use of force.  As per the evidence of Inspector <\/p>\n
Mohan   Chand   Sharma   (PW-229)   the   firing   started   from   inside   and   the <\/p>\n
                                             68<\/span><\/p>\n
same   was   returned   eventually   leading   to   the   death   of   Abu   Shamal   @ <\/p>\n
Faisal.   It is very significant to note that from this house, one AK-56 rifle, <\/p>\n
two magazines, 32 live and 67 fired cartridges were recovered.   Two live <\/p>\n
hand   grenades,   bullet   proof   jackets   and   khakhi   uniform   were   also <\/p>\n
recovered.   It is significant that there is virtually no cross examination on <\/p>\n
this aspect.   The evidence of Inspector Mohan Chand Sharma (PW-229) <\/p>\n
suggests that immediately after his apprehension, the appellant had owned <\/p>\n
up the involvement in the Red Fort attack incident and that he showed his <\/p>\n
residence to recover the arms and ammunitions and also disclosed about <\/p>\n
his associate.  There is absolutely no cross examination about the incident <\/p>\n
at   G-73,   Batla   House,   Muradi   Road,   Okhla   which   place   the   police   party <\/p>\n
was led by and discovered by the appellant.  There is nothing to challenge <\/p>\n
the   finding   of   the   weapons   &   ammunition   which   were   recovered   at   the <\/p>\n
instance of and  as a result  of information given by the  appellant.  All this <\/p>\n
has   gone   unchallenged   in   cross   examination   of   Inspector   Mohan   Chand <\/p>\n
Sharma (PW-229).  All this is supported by documentary evidence like DD <\/p>\n
entry   bearing   No.20   at   Police   Station   New   Friends   Colony   which <\/p>\n
mentioned about the firing going in Gali N.8, Batla House.  Ram Singh, ASI <\/p>\n
(PW-92) proved this entry.   Similarly, the receipt of information is entered <\/p>\n
as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m. <\/p>\n
Lastly,   on   the   same   day   there   is   another   entry   DD   No.22A   at   the   same <\/p>\n
police   station   on   the   basis   of   information   by   Inspector   Mohan   Chand <\/p>\n
                                             69<\/span><\/p>\n
Sharma and FIR No.630 of 2000 was also registered.  The other significant <\/p>\n
witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW-<\/p>\n
92).     We   need   not   go   into   the   contents   of   these   entries   excepting   to <\/p>\n
suggest that the information given by the appellant about Abu Shamal is <\/p>\n
reflected therein.    This brings us to a very important discovery statement <\/p>\n
made   by   the   appellant   as   also   to   the   seizure   in   pursuance   of   the   said <\/p>\n
discovery statement.\n<\/p>\n<\/p>\n
44.    The   appellant   was   formally   arrested   after   he   was   brought   back   at <\/p>\n
about 6.45 a.m. by S.I. Harender Singh (PW-194).  It is at this time that the <\/p>\n
mobile   phone   No.9811278510   was   recovered   from   his  possession.     The <\/p>\n
seizure has been proved by Zile Singh (PW-148) which is Exhibit PW-148\/ <\/p>\n
D.  This witness proved that after his formal arrest by S.I. Harender Singh <\/p>\n
in   the   search   of   appellant,   Rs.1000   in   cash   and   the   mobile   phone   of <\/p>\n
Motorola make was recovered.  He then made a disclosure statement vide <\/p>\n
Exhibit PW-148 E.   This recovery of mobile phone was also corroborated <\/p>\n
by   Inspector   Mohan   Chand   Sharma   (PW-229).     It   had   IMEI   number <\/p>\n
449173405451240   on   which   calls   were   made   from   mobile   phone <\/p>\n
9811278510  and  as per the  call details  this was   the instrument used  for <\/p>\n
mobile number 9811278510.  We have already explained in the earlier part <\/p>\n
of the judgment that this evidence could not be rejected on the mere plea <\/p>\n
that   the   mobile   number   was   not   found   or   was   not   immediately   taken   in <\/p>\n
                                              70<\/span><\/p>\n
possession by the investigating agency though they apprehended him on <\/p>\n
the night of 25.12.2000.  We have also pointed out as to how it would have <\/p>\n
been   disastrous   to   waste   time   in   writing   the  Panchnama  instead   of <\/p>\n
immediately   acting   on   the   information   given   by   the   appellant.     We, <\/p>\n
therefore, see nothing unnatural or unusual in the recovery of the mobile <\/p>\n
phone   9811278510.     After   all,   the   subsequent   results   which   followed <\/p>\n
discovery statement by the appellant i.e. the knowledge about G-73, Batla <\/p>\n
House and the encounter of Abu Shamal and the finding of his fire weapon <\/p>\n
and   the   ammunition   etc.   do   justify   the   quick   action   on   the   part   of   the <\/p>\n
investigating agency.  We, therefore, cannot view with suspicion the formal <\/p>\n
arrest of the appellant and the recoveries effected thereafter or the seizure <\/p>\n
memos executed.\n<\/p>\n<\/p>\n
45.     After   his   arrest   in   the   evening   of   25.12.2000,   the   appellant   firstly <\/p>\n
disclosed about Abu Shamal @ Faizal.  After the encounter of Abu Shamal <\/p>\n
@   Faizal,   when   his   formal   arrest   was   made,   he   made   disclosures   vide <\/p>\n
Exhibit PW-148\/E.   There is no cross-examination of S.I. Zile Singh (PW-<\/p>\n
148)   about   the   factum   of   the   appellant   having   made   a   disclosure.     S.I. <\/p>\n
Harender   Singh   (PW-194)   is   another   witness   to   speak   about   the   Exhibit <\/p>\n
PW-148\/E.  It has been baldly suggested to S.I. Harender Singh (PW-194) <\/p>\n
that the appellant was tortured.  The discovery statement which was made <\/p>\n
by the appellant is to the following effect:-\n<\/p>\n
\n                                            71<\/span><\/p>\n
               “Abu Shaimal had thrown his AK-47 rifle, magazine and <\/p>\n
               hand   grenade   into   the   shrubs   near   nullah   behind   the <\/p>\n
               wall of Red Fort.   Abu Shad had thrown his AK-47 rifle <\/p>\n
               into the shrubs grown at Vijay Ghat.  I can point out the <\/p>\n
               places and get recovered the weapons.”\n<\/p><\/blockquote>\n
\n       Another witness examined on this issue was S.I. Satyajit Sarin (PW-<\/p>\n<\/blockquote>\n
218).   He asserted in his examination-in-chief that the investigation team <\/p>\n
reached  the  Red Fort alongwith  Mohd. Arif @  Ashfaq and  the team was <\/p>\n
joined   by   Inspector   Hawa   Singh   (PW-228).     They   requested   two\/three <\/p>\n
passersby to join the investigation, but they refused to join and, therefore, <\/p>\n
without   wasting   any   further   time,   they   reached   the   spot   and   there   they <\/p>\n
found   AK-56   Assault   Rifle,   two   magazines   tied   to   each   other   and   a <\/p>\n
bandoleer   of   military   green   colour   containing   four   hand   grenades   in   four <\/p>\n
different   packets.     The   site  plan  was   prepared   by  Inspector  Hawa Singh <\/p>\n
(PW-228) and the recovery of the arms and ammunition was made and the <\/p>\n
same were  taken to P.S.  Kotwali.    The hand grenades were  later on got <\/p>\n
defused.  The chance finger prints were tried to be taken and photographs <\/p>\n
were taken.\n<\/p>\n<\/p>\n
46.    The witness also gave a complete description of the four detonators <\/p>\n
and a slip attached to the hand grenades.   A complete description of the <\/p>\n
shells   was   given   by   this   witness.     He   also   identified   the   said   rifles, <\/p>\n
magazines,   knife   and   detonators,   as   also   four   hand   grenades   and   the <\/p>\n
bandoleer  in Court.    The  other witness  to support this discovery and the <\/p>\n
                                             72<\/span><\/p>\n
recoveries pursuant thereto is S.I. Amardeep Sehgal (PW-227).   He also <\/p>\n
gave a complete story as deposed by the earlier witness.   This evidence <\/p>\n
was   further   corroborated   by   the   evidence   of   N.B.   Bardhan,   Sr.   Scientific <\/p>\n
Officer   in   CFSL   (PW-202),   who   was   present   at   the   time   of   recovery   of <\/p>\n
hand grenades  being a ballistic expert.   Another witness   is S.K. Chadha <\/p>\n
(PW-125).     We   have   already   discussed   earlier   the   evidence   of   N.B. <\/p>\n
Bardhan about the nature of the rifles, one found at Batla House and the <\/p>\n
other recovered at the instance of the appellant from the Red Fort wall.  He <\/p>\n
has also spoken about the nature of the hand grenades.   This discovery <\/p>\n
was   attacked   vehemently   by   Ms.   Kamini   Jaiswal,   learned   counsel <\/p>\n
appearing   on   behalf   of   the   appellant,   in   all   the   aspects.     The   learned <\/p>\n
counsel   described   this   recovery   as   a   farce   and   also   asserted   that   this <\/p>\n
discovery could not be said to be a discovery at all in view of the fact that <\/p>\n
in   all   probability,   the   placement   of   the   rifles,   bandoleer   etc.   must   have <\/p>\n
known to the police for the simple reason that the whole area was almost <\/p>\n
combed   by   number   of   police   personnel   for   the   whole   night   and   even <\/p>\n
thereafter  i.e.  in  the  night   of  22.12.2000  and   the  morning   of  23.12.2000. <\/p>\n
We have seen the recovery Panchnama proved by the witnesses at Exhibit <\/p>\n
PW-227\/A.     It   has   to   be   borne   in   mind   that   both   the   rifles   and   the <\/p>\n
ammunition have not only been identified by the witnesses but it has also <\/p>\n
been proved by the prosecution as to how they were used and the fact that <\/p>\n
they were used actively in the sense that they were fired also.   We have <\/p>\n
                                            73<\/span><\/p>\n
already discussed the evidence of the Ballistic experts, which went on to <\/p>\n
corroborate the version by the prosecution.   The learned counsel pointed <\/p>\n
out that this weapon  was  found near to the slip which was  recovered on <\/p>\n
the night of 22.12.2000 itself.  She also pointed out that weapon could not <\/p>\n
be said to be hidden.  They were just lying in the bush and, therefore, it is <\/p>\n
just impossible to infer that they were not seen by the police.  In short, the <\/p>\n
learned   counsel   suggested   that   this   is   a   fake   discovery   and   the   police <\/p>\n
already knew about the AK-56 Assault Rifle, magazines and a bandoleer <\/p>\n
etc.     She   pointed   out   that   one   other   witness,   namely,   Abhinender   Jain <\/p>\n
(PW-28) was a part of the team in recovering the weapons allegedly at the <\/p>\n
instance of the appellant and he did not speak about the disclosure made <\/p>\n
by the appellant on 26.12.2000.   We shall revert back to this discovery in <\/p>\n
particular and the law relating to Section 27, Evidence Act a little later.<\/p>\n
47.    Another   discovery   at   the   instance   of   the   appellant   was   on <\/p>\n
01.01.2001 vide Disclosure Statement (Exhibit 28\/A).     However, there is <\/p>\n
one   more   important   discovery   at   the   instance   of   the   appellant,   which   is <\/p>\n
proved at Exhibit 168\/A.  It was made on 01.01.2001 and has been proved <\/p>\n
by   R.S.   Bhasin   (PW-168)   and   S.I.   Satyajit   Sarin   (PW-218).     In   this <\/p>\n
discovery, the appellant disclosed that out of the hand grenades which he <\/p>\n
had   brought   from   Pakistan,   three   were   hidden   in   the   bushes   inside <\/p>\n
boundary wall of Jamia Milia Islamia University, which spot is just behind <\/p>\n
                                           74<\/span><\/p>\n
the   computer   centre   run   by   the   appellant.     Accordingly,   this   discovery <\/p>\n
statement   was   recorded   by   R.S.   Bhasin   (PW-168)   and   he   organized   a <\/p>\n
raiding   team   consisting   of   Inspector   Hawa   Singh   (PW-228),   Inspector <\/p>\n
Mohan Chand Sharma (PW-229) and five others, who were not examined <\/p>\n
by the prosecution.  The team went to New Friends Colony at 2.25 pm and <\/p>\n
appraised SHO Gurmeet Singh (PW-213), who  alongwith  two others (not <\/p>\n
examined), joined the investigation.   After taking the permission from Dr. <\/p>\n
Farukh and Dr. Mehtab, one Raghubir Singh (PW-209) was asked by the <\/p>\n
authorities to join the investigation.   One Devender Kumar (PW-208) also <\/p>\n
joined the raiding party.  Thereafter, at the instance of the appellant, three <\/p>\n
hand grenades were recovered kept concealed.  A seizure memo was also <\/p>\n
executed vide Exhibit PW-168\/B and a Rukka was  also prepared, on the <\/p>\n
basis   of   which   a   new   case   was   sought   to   be   registered   at   P.S.   New <\/p>\n
Friends   Colony.     One   more   disclosure   statement   was   made   vide <\/p>\n
Exhibit   PW-168\/D,   where   the   appellant   disclosed   and   agreed   to   recover <\/p>\n
more   hand   grenades   and   AK-56   rifle   which   was   recovered   from   Safa <\/p>\n
Qudal, Sri Nagar.   This version was supported by S.I. Satyajit Sarin (PW-<\/p>\n
218) as also S.I. Amardeep Sehgal (PW-227) and Inspector Hawa Singh <\/p>\n
(PW-228).  There is nothing to disbelieve this discovery of hand grenades <\/p>\n
which   hand   grenades   were   ultimately   identified   and   their   potency   was <\/p>\n
proved by N.B. Bardhan (PW-202).  A feeble contention was raised by Ms. <\/p>\n
Jaiswal,  learned counsel that this discovery of the hand grenades should <\/p>\n
                                               75<\/span><\/p>\n
not be believed because it is belated.   She pointed out that the appellant <\/p>\n
was   in   the   police   custody   right   from   the   night   of   25.12.2000   and   the <\/p>\n
discovery statement was made and recorded on 1.1.2001.   Insofar as the <\/p>\n
discovery of grenades is concerned, we must say that nothing much was <\/p>\n
argued.  The significance of the grenades having been hidden right behind <\/p>\n
the   computer   centre   near   the   compound   wall   of   Jamia   Milia   Islamia <\/p>\n
University cannot be ignored.  The appellant has no explanation as to why <\/p>\n
the three hand grenades were hidden right behind the computer centre.  <\/p>\n
48.     The  learned  Solicitor General very forcefully argued with  reference <\/p>\n
to various documents which supported this discovery and pointed out that <\/p>\n
immediately after the recovery of these hand grenades, they were seized <\/p>\n
properly and this recovery was supported by the independent evidence of <\/p>\n
Devender Jain (PW-208) and Raghubir Singh (PW-209).   He also pointed <\/p>\n
out  that  there is  nothing  in  the cross-examination  of  these  two  individual <\/p>\n
witnesses   to   dispute   or   doubt   the   recovery   of   the   hand   grenades   at   the <\/p>\n
instance   of   the   appellant.     It   is   to   be   noted   that   police   could   not   have <\/p>\n
produced the foreign made hand grenades to be planted either at the Red <\/p>\n
Fort   or   at   Jamia   Milia   Islamia   University   behind   the   computer   centre. <\/p>\n
Insofar as the discovery of hand grenades at Jamia Milia Islamia University <\/p>\n
is concerned, we have no doubts about its genuineness and we accept the <\/p>\n
same.     Merely   because   the   appellant   was   in   custody   for   4-5   days   and <\/p>\n
                                              76<\/span><\/p>\n
decided   to   disclose   the   information   only   on   01.01.2001,   would   not   be   a <\/p>\n
reason by itself to doubt the same or to have any suspicion on the same. <\/p>\n
In the case of this nature and magnitude and also considering the nature of <\/p>\n
the appellant who  was  a Pakistani national and was  allegedly sent to do <\/p>\n
terrorist  acts in  India  and  as such  a tough  terrorist,  was  not  expected  to <\/p>\n
give   easily   the   information   unless   he   was   thoroughly   interrogated. <\/p>\n
Considering   the   peculiar   nature   of   this   case,   we  accept   the   discovery  of <\/p>\n
grenades at the instance of the appellant.  Same thing can be stated about <\/p>\n
the   earlier   discovery   dated   26.12.2000   of   the   AK-56   Assault   Rifle, <\/p>\n
magazines, bandoleer etc.  The very fact that these weapons were proved <\/p>\n
to have been used would corroborate the discovery.   If the general public <\/p>\n
refused to join the investigation to become Panchas, that cannot be viewed <\/p>\n
as a suspicious factum and on that basis, the investigative agency cannot <\/p>\n
be faulted.  After all, what is to be seen is the genuineness and credibility <\/p>\n
of the discovery.  The police officers, who were working day and night, had <\/p>\n
no reason to falsely implicate the appellant.  They could not have produced <\/p>\n
AK-56   Rifles   and   the   grenades   of   foreign   make   from   thin   air   to   plant   it <\/p>\n
against the appellant.  It has been held in Suresh Chandra Bahri v. State  <\/p>\n
of Bihar<\/a> [1995 Suppl (1) SCC 80]  that even if the discovery statement is <\/p>\n
not recorded in writing but there is definite evidence to the effect of making <\/p>\n
such  a discovery statement  by  the concerned  investigating officer,  it can <\/p>\n
still be held to be a good discovery.  The question is of the credibility of the <\/p>\n
                                             77<\/span><\/p>\n
evidence of the police officer before whom the discovery statements were <\/p>\n
made.    If the  evidence  is  found to  be genuine  and  creditworthy,  there  is <\/p>\n
nothing  wrong  in accepting such  a  discovery statement.    We do not  see <\/p>\n
any   reason   to   accept   the   argument   that   the   police   must   have   already <\/p>\n
known about the weapon.   Considering the fact that this attack was on a <\/p>\n
dark night in the winters and the guns were thrown in the thick bushes then <\/p>\n
existing behind the Red Fort wall, it is quite possible that they were missed <\/p>\n
by the investigating agency.  At any rate, the recovery of these guns from <\/p>\n
the spot near which the whole horrible drama took place and the appellant <\/p>\n
having   knowledge   about   the   same   and   further   the   proved   use   of   these <\/p>\n
weapons and their fire-power, would persuade us to accept this discovery. <\/p>\n
Again,   we   cannot   ignore   the   fact   that   the   factum   of   discovery   has   been <\/p>\n
accepted by both the Courts below.\n<\/p>\n<\/p>\n
49.    There   are   some   other   significant   circumstances   relied   on   by   the <\/p>\n
prosecution   to   show   that   the   appellant,   who   admittedly   was   a   Pakistani <\/p>\n
national   and   had   unauthorizedly   entered   India,   wanted   to   establish   his <\/p>\n
identity in India and for that purpose, he got prepared a fake and forged <\/p>\n
ration card and on that basis, applied for a driving license and also opened <\/p>\n
bank   accounts.    The  only purpose   in  doing  this was  to  establish  that   he <\/p>\n
was living in Delhi legitimately as an Indian national.<\/p>\n
                                              78<\/span><\/p>\n
50.     On his arrest on 25.12.2000, a ration card was recovered and seized <\/p>\n
from the very house at 308A, DDA flats, Ghazipur, Delhi.   This card bore <\/p>\n
the number 258754.   This was in the name of Ashfaq Ahmed, S\/o Akram <\/p>\n
Khanat, R\/o F-12\/12, Batla House, Okhla, New Delhi.  S.R. Raghav, retired <\/p>\n
Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest <\/p>\n
that this card was not issued by his department i.e. Circle 6, Okhla.  Other <\/p>\n
witness   is   Ms.   Anju   Goel,   UDC   (PW-164),   who   deposed   that   the <\/p>\n
appellant’s   ration  card   did   not   bear  her   signature.     She   also   pointed   out <\/p>\n
that the signature appearing in Exhibit PW-164\/A (ration card) was not her <\/p>\n
signature.     There   is   no   effective   cross-examination   of   both   these <\/p>\n
witnesses.   Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165) <\/p>\n
also referred to the aforementioned ration card proved by Ms. Anju Goel <\/p>\n
(PW-164) and asserted that the signature and the handwriting on the said <\/p>\n
card  was   not  that  of   Ms.  Anju   Goel.     Manohar  Lal,   UDC,   Department   of <\/p>\n
Education   (PW-172)   deposed   that   the   appellant’s   ration   card   was   not <\/p>\n
issued   from   Circle   6   of   the   Ration   office.     Kushal   Kumar   (PW-174) <\/p>\n
deposed   that   he   had   made   entry   of   ration   card   of   the   appellant   in   his <\/p>\n
register   at   his   fair   price   shop.     Ms.   Sunita,   LDC,   Food   &   Supply   Office, <\/p>\n
Circle 7 (PW-191) gave specimen of two rubber stamps and they did not <\/p>\n
tally with the rubber stamps on the ration card of the appellant.   There is <\/p>\n
absolutely   no   cross-examination.     There   is   a   report   proved   by   Yashpal <\/p>\n
Singh,   Supply   Inspector,   Department   of   Food   and   Supply,   Ghaziabad <\/p>\n
                                            79<\/span><\/p>\n
(PW-2), being Exhibit PW-2\/A, to the effect that no ration card in the name <\/p>\n
of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office.  Thus, it <\/p>\n
is obvious that the appellant got prepared a fake ration card, where name <\/p>\n
of   his   wife   was   mentioned   as   Bano   and   residence   as   102,   Kela   Bhatta, <\/p>\n
Ghaziabad,   where   he   had   never   resided.     This   ration   card,   significantly <\/p>\n
enough,   was   recovered   from   his   house   at   308A,   DDA   flats,   Ghazipur, <\/p>\n
Delhi.     Yashpal   Singh   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer, <\/p>\n
Food   and   Civil   Supply   Department,   Ghaziabad   (PW-3)   proved   that   the <\/p>\n
ration card was in the name of Azad Khalid (PW-1) and there was no ration <\/p>\n
card   in   the   name   of   Ashfaq   Ahmed   S\/o   Akram   Khanat.     Azad   Khalid <\/p>\n
Siddique,   Correspondent,   Sahara   TV   (PW-1)   himself   stepped   into   the <\/p>\n
witness box and deposed that there was one ration card in his name and <\/p>\n
other in his father’s name, which were issued at the address of 102, Kela <\/p>\n
Bhatti,   Ghaziabad,   which   address   was   falsely   given   by   the   appellant <\/p>\n
because the appellant had never stayed  at the said address.   Thus, it is <\/p>\n
obvious   that   the   ration   card   was   fake   and   fabricated.     The   factual <\/p>\n
information on the ration card also does not tally at all.<\/p>\n
51.    The   investigating   agency,   on   3.1.2001,   seized   certain   important <\/p>\n
documents, they being a learner’s license issued by Shaikh Sarai Authority <\/p>\n
bearing Exhibit No. PW-13\/C, Form No. 2 of Ashfaq Ahmed for renewal of <\/p>\n
learner’s   license   bearing   Exhibit   No.   PW-13\/D   and   a   photocopy   of   the <\/p>\n
                                               80<\/span><\/p>\n
ration card  of Ashfaq  Ahmed  bearing Exhibit  No. PW-13\/E.   The  seizure <\/p>\n
memo   is   Exhibit   PW-13\/B.     These   documents   have   been   proved   by  S.I. <\/p>\n
Rajinder Singh (PW-137).   This was  in order to do the verification of the <\/p>\n
driving   license   of   the   appellant.     The   witness   suggests   that   he   enquired <\/p>\n
from   Ms.   Mamta  Sharma  (PW-16),   ARTO,   who   confirmed   that   the   same <\/p>\n
was a genuine driving license having been issued by her office and hence, <\/p>\n
proceeded to seize the supporting documents.   It is obvious that the said <\/p>\n
driving license was sought for on the basis of the ration card in the name of <\/p>\n
the appellant, which was obviously fake, as we have already shown above <\/p>\n
for the simple reason that the address given on this driving license was not <\/p>\n
the genuine address of the appellant, whereas it was in fact the address of <\/p>\n
Azad Khalid Siddique (PW-1) who had nothing to do with the appellant.  In <\/p>\n
this   driving   license   also,   the   address   given   by   the   appellant   was   B-17, <\/p>\n
Jangpura,   Bhogal   and   it   was   issued   by   Sarai   Kale   Khan   Authority.     He <\/p>\n
obviously did not reside on this address which is clear from the evidence of <\/p>\n
Narayan Singh (PW-6).  Thus, not only did the appellant got himself a fake <\/p>\n
and forged ration card, but on this basis, also got prepared a fake learning <\/p>\n
license,   in   which   also,   he   gave   a   false   residential   address.     All   this   was <\/p>\n
obviously   with   an   idea   to   screen   himself   and   to   carry   on   his   nefarious <\/p>\n
activities   in   the   Indian   cities.     Nothing   much   has   come   in   the   cross-<\/p>\n
examinations   of   these   witnesses.     We   have,   therefore,   no   hesitation   to <\/p>\n
hold that the appellant used a forged ration card and got a driving license <\/p>\n
                                            81<\/span><\/p>\n
giving a false address.\n<\/p>\n<\/p>\n
52.    The appellant, in order to legitimize his residence in Delhi, started a <\/p>\n
computer   centre   at   House   No.18C,   Gaffur   Nagar,   Okhla.     Danish   Mohd. <\/p>\n
Khan   (PW-44),   Mohd.   Khalid   (PW-36),   Faizal   Mohd.   Khan   (PW-56), <\/p>\n
Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   are   the <\/p>\n
witnesses on this aspect.   Danish Mohd. Khan (PW-44) deposed that his <\/p>\n
cousin Faizal had opened a cyber cafe with the appellant and this was told <\/p>\n
to him in September, 2000.  Previously both of them used to reside in the <\/p>\n
house of Nain Singh (PW-20).  Since Faizal did not have an identity proof, <\/p>\n
he borrowed the identity card of this person and since the card was in his <\/p>\n
name, the phone connection in this computer centre was also in his name. <\/p>\n
He,   undoubtedly,   resiled   from   his   statement   before   the   police   that   he <\/p>\n
applied   for   a   telephone   connection   in   his   name.     However,   there   is   no <\/p>\n
cross-examination of this witness about what was told to him by Faizal.  In <\/p>\n
his cross-examination at the instance of the Public Prosecutor, he admitted <\/p>\n
that Faizal had asked him to help him in getting telephone connection.  He <\/p>\n
also   admitted   that   Faizal   had   told   him   that   for   getting   an   internet <\/p>\n
connection,   a   telephone   was   required.     The   telephone   number   of   the <\/p>\n
computer centre was 6315904 which was in the name of this witness.<\/p>\n
53.    The   other   witness   in   this   behalf   is   Faizal   Mohd.   Khan   (PW-56) <\/p>\n
himself who deposed that he was residing in the house of one Nain Singh <\/p>\n
                                              82<\/span><\/p>\n
(PW-20) at Okhla Village on a monthly rent of Rs.1,000\/- and that he had a <\/p>\n
personal computer on which he used to practice.  He further deposed that <\/p>\n
one Adam Malik (PW-31) also used to reside in the said house and it was <\/p>\n
he   who   brought   the   appellant   with   him   in   May,   2000.     It   was   this   Adam <\/p>\n
Malik (PW-31) who  introduced  him to the appellant and told him that the <\/p>\n
appellant is a resident of Jammu.   He wanted to open a computer centre <\/p>\n
but  was  not  having enough money and  it  was  Adam Malik (PW-31) who <\/p>\n
informed the appellant that the witness wanted to open a computer centre <\/p>\n
and offered financial help.  He managed Rs.70,000\/- and the appellant put <\/p>\n
Rs.1,70,000\/-   and   that   is   how   the   computer   centre   was   opened.     The <\/p>\n
witness  stated  that  the twosome  i.e. himself and  the appellant  employed <\/p>\n
one   Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   as <\/p>\n
faculty members on the condition that they would get salary only when the <\/p>\n
computer centre starts earning profit.   He then deposed that he used the <\/p>\n
ration   card   of   Danish   Mohd.   Khan   (PW-44)   and   a   telephone   connection <\/p>\n
was   obtained   in   the   name   of   Danish   Mohd.   Khan   (PW-44)   and   was <\/p>\n
installed   at   the   computer   centre   `Knowledge   Plus’.     We   have   already <\/p>\n
referred   to   his   assertion   that   the   appellant   had   a   mobile   phone.     In   his <\/p>\n
cross-examination, nothing much has come about the contribution given by <\/p>\n
the appellant of Rs.1,70,000\/-.   He also asserted that it was the appellant <\/p>\n
who managed to take the premises of computer centre on lease.  Shahvez <\/p>\n
Akhtar  (PW-113) and  Shahnawaz  Ahmad  (PW-163) have supported this. <\/p>\n
                                            83<\/span><\/p>\n
Adam Malik (PW-31) also confirmed that he was the one who arranged for <\/p>\n
the accommodation of the appellant in the house of Nain Singh (PW-20). <\/p>\n
To   him,   the   appellant   had   told   that   he   was   a   Kashmiri   and   doing   the <\/p>\n
business of selling shawls.  Nain Singh (PW-20) also supported the theory <\/p>\n
of the appellant contacting him through his earlier tenant Adam Malik (PW-<\/p>\n
31).  To the same effect is the evidence of Aamir Irfan (PW-37) and Rashid <\/p>\n
Ali (PW-232).  All this clearly goes on to show that the appellant was all the <\/p>\n
time   making  false   representation,  firstly,  on   his  doing  business   of  selling <\/p>\n
shawls,  secondly,  on   carefully  entering   as  a  tenant  in  the  house  of  Nain <\/p>\n
Singh   (PW-20),   thirdly,   on   defrauding   Danish   Mohd.   Khan   (PW-44)   for <\/p>\n
opening   a   computer   centre   for   which   he   contributed   Rs.1,70,000\/-   and <\/p>\n
lastly, successfully getting a telephone installed at the computer centre.  All <\/p>\n
this was nothing but a deliberate effort to find a firm foot hold on the Indian <\/p>\n
soil to carry out his nefarious design.\n<\/p>\n<\/p>\n
54.    We have also gone through the evidence of Gian Chand Goel (PW-<\/p>\n
21), which establishes the connection of the appellant with House No.G-73 <\/p>\n
Batala House, Murari Road, Okhala, New Delhi, where the encounter took <\/p>\n
place in which the appellant’s companion Abu Shamal was  killed.   In his <\/p>\n
evidence,   Gian   Chand   Goel   (PW-21)   specifically   stated   that   he   did   not <\/p>\n
know   anything   about   the   appellant   and   that   he   had   rented   the   house   to <\/p>\n
Rashid Ali (PW-232) on 6.12.2000 i.e. barely 16 days earlier to the incident <\/p>\n
                                             84<\/span><\/p>\n
at a monthly rent of Rs.1,500\/-.   He also deposed that on 7.12.2000, two <\/p>\n
other boys were  brought by him and all the three started residing on the <\/p>\n
first floor of his house.   He deposed that Rashid Ali (PW-232) who was a <\/p>\n
student   of   Jamia   Milia   Islamia   University   and   the   appellant   were   the <\/p>\n
tenants of Nain Singh (PW-20) and later on, they shifted into his house as <\/p>\n
tenants.       He   also   referred   to   the   encounter   dated   26.12.2000,   wherein <\/p>\n
Abu Shamal was killed, though he did not know the name of Abu Shamal.<\/p>\n
55.    Rashid Ali (PW-232) had a significant role to play in this whole affair. <\/p>\n
He   asserted   that   he   was   a   tenant   of   Nain   Singh   (PW-20)   in   1998   while <\/p>\n
studying   in   Jamia   Milia   Islamia   University   in   B.A.   IInd   Year.     He   was <\/p>\n
friendly with one Hamid Mansoori and Adam Malik (PW-31).   He came to <\/p>\n
know the appellant who was residing in the house of Nain Singh (PW-20) <\/p>\n
as   a   tenant.     He   also   confirmed   that   the   appellant   was   having   a   mobile <\/p>\n
phone with him.   On 8.12.2000, the appellant took him to Roza Iftar Party <\/p>\n
at Laxmi Nagar.   Instead of the Iftar Party, the appellant got married to a <\/p>\n
lady on that day.  Significantly enough, the appellant had already gone as <\/p>\n
a tenant to Gian Chand Goel (PW-21), however, it seems that still he was <\/p>\n
making out as if he was residing in PW-20 Nain Singh’s house and in an <\/p>\n
important   function   like   his   marriage,   he   took   Rashid   Ali   (PW-232)   telling <\/p>\n
him that they were going for an Iftar Party in the month of Ramzan.  All this <\/p>\n
suggests   that   the   appellant   was   very   particular   about   his   own   personal <\/p>\n
                                             85<\/span><\/p>\n
details   and   made   various   false   representations   to   all   those   in   whose <\/p>\n
contact he came.  Needless to say that he used all these witnesses to his <\/p>\n
own benefit for carrying out his evil design in pursuance of the conspiracy.<\/p>\n
56.    This   brings   us   to   the   evidence   of   Nain   Singh   (PW-20)   and   the <\/p>\n
fantastic   theory   that   the   defence   gave   about   the   role   played   by   this <\/p>\n
witness.    The  said witness  was  examined to show that House No. 97-A, <\/p>\n
Okhla Village was in the name of his mother and while he stayed on the <\/p>\n
ground floor, his mother had rented out the first floor and the second floor. <\/p>\n
He asserted that Adam Malik (PW-31) was the tenant on the second floor <\/p>\n
and he had brought the appellant to his mother and his mother had rented <\/p>\n
out the room to him at the rent of Rs.1,200\/- per month.  He also asserted <\/p>\n
that he asked Adam Malik (PW-31) to get the house vacated, whereupon, <\/p>\n
the  appellant  vacated the house after about one and a half months.   He <\/p>\n
was cross-examined in detail.  It was brought out in his cross-examination <\/p>\n
that   he   did   not   have   any   documentary   evidence   regarding   the   appellant <\/p>\n
remaining in that house as a tenant.  It was suggested to him that he was <\/p>\n
working as an Intelligence man in the Cabinet Secretariat.   He was made <\/p>\n
to   admit   that   he   could   not   disclose   the   present   official   address   or   the <\/p>\n
places where he moved out of Delhi.   He was made to say “I cannot say <\/p>\n
whether  I am not disclosing these addresses as my identity in the public <\/p>\n
would be disclosed”.  He also refused to show his identity card in the open <\/p>\n
                                              86<\/span><\/p>\n
Court   while   it   was   shown   to   the   Court.     He   was   made   to   say   “I   cannot <\/p>\n
disclose  whether  I am  working  for  RAW”.   He  then  clarified  that  no  fund <\/p>\n
was at his disposal for going out of Delhi, but he was paid for the Railway <\/p>\n
warrant   or   air   ticket.     Strangely   enough,   a   suggestion   was   given   to   the <\/p>\n
witness to the effect that the appellant never took the aforesaid house from <\/p>\n
his mother on rent or that he was introduced by any of the other tenants of <\/p>\n
that   house.     All   through   in   his   cross-examination,   it   was   tried   to   be <\/p>\n
suggested that the appellant never stayed in his house as a tenant.   That <\/p>\n
is all the cross-examination of this witness.  In his statement under Section <\/p>\n
313 Cr.P.C.,  the appellant suggested  that he used to work  for X-Branch, <\/p>\n
RAW   (Research   &   Analysis   Wing)   since   1997   and   he   had   come   to <\/p>\n
Kathmandu in June, 2000 to give some documents to one Sanjeev Gupta <\/p>\n
on a Pakistan Passport bearing No. 634417.   He spoke that there was a <\/p>\n
party named Paktoonmili Party and RAW was supporting that party since <\/p>\n
last  30-35  years.     He stated  that   one  Sagir  Khan   was  a  member   of  that <\/p>\n
party and he was arrested by the police of Pakistan alongwith his younger <\/p>\n
brother   and   he   received   this   news   in   Kathmandu   and   spoke   to   Sanjeev <\/p>\n
Gupta in this regard.   He further claimed that his cousin had also advised <\/p>\n
him   not   to  return   to  Pakistan  for   the   time  being   and   that   Sanjeev   Gupta <\/p>\n
advised him to go to India and he accompanied him upto Rauxol and from <\/p>\n
there,   he   (the   appellant)   came   to   India   by   train.     He   claimed   that   the <\/p>\n
address   of   Nain   Singh   (PW-20)   was   given   to   him   by   Sanjeev   Gupta   as <\/p>\n
                                            87<\/span><\/p>\n
also   his   telephone   number   being   6834454.     He   then   claimed   that   Nain <\/p>\n
Singh (PW-20) gave a room in his house for his stay and advised him not <\/p>\n
to   tell   his   name   and   address   to   anyone   and   to   describe   himself   as   a <\/p>\n
resident   of   Jammu.     He   claimed   that   Nain   Singh   (PW-20)   used   to   do <\/p>\n
business   of   money   lending   and   the   appellant   used   to   help   him   in <\/p>\n
maintaining   his   accounts.     He   then   claimed   that   Nain   Singh   (PW-20) <\/p>\n
helped him to open the computer centre.  Thereafter, Nain Singh (PW-20) <\/p>\n
got   some   money   through   Sanjeev   Gupta   from   Nepal.     The   amount   was <\/p>\n
Rs.7 lakhs.  However, Nain Singh (PW-20) did not disclose about receiving <\/p>\n
of that huge amount and whenever he was questioned about any amount, <\/p>\n
Nain   Singh   (PW-20)   used   to   avoid   such   questions.     He   then   claimed   to <\/p>\n
have  contacted  his  family members  who  asked  him to  speak  to Sanjeev <\/p>\n
Gupta   and   after   he   spoke   to   Sanjeev   Gupta,   he   came   to   know   about <\/p>\n
Rs.6,50,000\/-   having   been   sent   to   Nain   Singh   (PW-20)   by   him.     The <\/p>\n
appellant then claimed that Nain Singh (PW-20) got his account opened in <\/p>\n
HDFC Bank and also got a cheque book which was shown to him.  It was <\/p>\n
at his instance that the appellant was asked to sit at the computer centre <\/p>\n
and his cheque book of the HDFC bank used to remain with  Nain Singh <\/p>\n
(PW-20).     According   to   the   appellant,   Nain   Singh   (PW-20)   got   only   one <\/p>\n
cheque signed by him and whenever he needed money, he used to take it <\/p>\n
from Nain Singh (PW-20) in the sum of Rs.500\/- to Rs.1,000\/-.   He then <\/p>\n
claimed   that   one   Chaman   Lal   in   Chandni   Chowk   and   one   Sardar   Ji   in <\/p>\n
                                            88<\/span><\/p>\n
Karol Bagh were also engaged in the business of money lending and the <\/p>\n
appellant used to collect money from them on behalf of Nain Singh (PW-<\/p>\n
20).  He then went on to suggest that on the birthday party of his son, Nain <\/p>\n
Singh (PW-20) got him introduced to Inspector R.S. Bhasin (PW-168) and <\/p>\n
Inspector   Ved   Prakash   (PW-173).     However,   he   persisted   in   demanding <\/p>\n
money from Nain Singh (PW-20) on which Nain Singh (PW-20) used to get <\/p>\n
annoyed and because of that, he got the appellant involved falsely in this <\/p>\n
case.  He claimed that on 25.12.2000, Nain Singh (PW-20) called him from <\/p>\n
his computer  centre  to  his house on  the plea that  Inspector R.S.  Bhasin <\/p>\n
(PW-168)   and   Inspector   Ved   Prakash   (PW-173)   had   to   take   some <\/p>\n
information   from   him   and   he   accordingly   came   to   the   said   house. <\/p>\n
Thereafter, these two persons who were in plain clothes and had come to <\/p>\n
the house of the appellant in a white maruti zen car took him to a flat in <\/p>\n
Lodhi   Colony,   where   both   the   Inspectors   alongwith   one   Sikh   Officer <\/p>\n
interrogated   the   appellant   about   his  entire   background   and   thereafter   he <\/p>\n
was dropped to his house by the same persons.  Nain Singh (PW-20) was <\/p>\n
not present at that time, but his wife informed him about the telephonic call <\/p>\n
received   from   his   in-laws   at   Ghazipur   regarding   dinner   in   the   evening. <\/p>\n
Thereafter, he took a bus and reached the house of his in-laws and asked <\/p>\n
them whether they had made a call which they denied to have made.  He <\/p>\n
claimed   to   have   finished   his   dinner   by   10.00   pm   when   the   police   party <\/p>\n
raided   the   house.     The   appellant   stated   that   the   police   party   threatened <\/p>\n
                                              89<\/span><\/p>\n
him that if he spoke much, he will  be shot dead and his signatures were <\/p>\n
obtained on a blank paper.  Then he was tortured and was constantly kept <\/p>\n
in   the   custody   of   Inspector   R.S.   Bhasin   (PW-168),   S.I.   Murugan   and <\/p>\n
Constable Jai Parkash.  He then admitted to have put his signatures on the <\/p>\n
blank   paper   under   the   fear   of   torture   to   himself   and   his   sister-in-law, <\/p>\n
mother-in-law and brother-in-law.  He further said that he did not know any <\/p>\n
other   accused   excepting   his   wife   Rehmana   Yusuf   Farukhi.     He   claimed <\/p>\n
that he was implicated in this case only because he is a Pakistani national.<\/p>\n
57.     All this would go to suggest that Nain Singh (PW-20) had a very vital <\/p>\n
part to play in his (appellant) being brought to India and being established <\/p>\n
there.     Very   strangely,   all   this   long   story   runs   completely   counter   to   the <\/p>\n
cross-examination   of   Nain   Singh   (PW-20),   as   has   already   been   pointed <\/p>\n
out.   In his cross-examination, the whole effort on the part of the defence <\/p>\n
was to show that the appellant was never a tenant of Nain Singh (PW-20) <\/p>\n
and had never stayed at his place, whereas  his defence was  completely <\/p>\n
contrary   to   this   theory   wherein   the   appellant   has   claimed   that   he   was <\/p>\n
intimately   connected   with   Nain   Singh  (PW-20),  inasmuch   as,  he  used  to <\/p>\n
look after his accounts and used to assist him for recovery of the amounts <\/p>\n
loaned   by   Nain   Singh   (PW-20)   to   various   other   people.     The   learned <\/p>\n
counsel did not even distantly suggest to PW-20 Nain Singh the long story <\/p>\n
stated by the appellant in his statement under Section 313 Cr.P.C.  There <\/p>\n
                                            90<\/span><\/p>\n
is not even a hint about the role played by Sanjeev Gupta in Nepal or the <\/p>\n
amounts allegedly sent by Sanjeev Gupta to Nain Singh (PW-20) and Nain <\/p>\n
Singh   (PW-20)   having   refused   to   part   with   the   amount   in   favour   of   the <\/p>\n
appellant.     There   is   nothing   suggested   to   Nain   Singh   (PW-20)   that   the <\/p>\n
appellant   was   working   for   the   X-Branch,   RAW,   much   less   since   1997, <\/p>\n
while he was in Pakistan.   The learned defence counsel Ms. Jaiswal very <\/p>\n
vociferously argued that Nain Singh (PW-20) was  actually working for an <\/p>\n
organization “RAW”.  She also pointed out that a clear cut suggestion was <\/p>\n
given   about   his   RAW   activities   and   his   being   a   member   of   RAW,  in   his <\/p>\n
cross-examination.     She   also   pointed   out   that   there   was   some <\/p>\n
contradiction   in   the   statement   of   Nain   Singh   (PW-20)   and   Adam   Malik <\/p>\n
(PW-31) about letting out the house to the appellant.   Much was made of <\/p>\n
the fact that Nain Singh (PW-20) refused to disclose his identity and shown <\/p>\n
the identity card only to the Court.  From all this, the learned counsel tried <\/p>\n
to argue that Nain Singh (PW-20) was a RAW agent and was also involved <\/p>\n
in   business   of   money   lending.     She   also   pointed   out   that   though   Nain <\/p>\n
Singh   (PW-20)   claimed   that   the   accused   had     vacated   the   house,   the <\/p>\n
evidence   disclosed   that   the   appellant   stayed   at   Nain   Singh’s   house   till <\/p>\n
December.  She also pointed to the contradictory statement made by Gian <\/p>\n
Chand Goel (PW-21).   According to the learned counsel, while earlier the <\/p>\n
witness   said   that   the   house   was   let   out   to   Rashid   Ali   (PW-232)   on <\/p>\n
6.12.2000 and the appellant used to meet him, later on in the same para, <\/p>\n
                                              91<\/span><\/p>\n
he said that the appellant and Rashid Ali (PW-232) both, were his tenants. <\/p>\n
Then   the   said   witness   claimed   in   his   further   cross-examination   that   the <\/p>\n
appellant was his only tenant.  From all this, the learned counsel urged that <\/p>\n
there   was   a   very   deep   possibility   of   Nain   Singh   (PW-20)   being   a   RAW <\/p>\n
agent   and   as   such   having   given   shelter   to   the   appellant   and   that   the <\/p>\n
appellant stayed throughout in Nain Singh’s house only.  Very significantly, <\/p>\n
this claim of the learned defence counsel goes completely counter to the <\/p>\n
cross-examination   where   the   only   suggestion   given   is   that   the   appellant <\/p>\n
was never a tenant of Nain Singh (PW-20) and never stayed at his house. <\/p>\n
58.     The   learned   counsel   also   invited   our   attention   to   the   evidence   of <\/p>\n
Aamir Irfan (PW-37), Yunus Khan (PW-4) as also Ved Prakash (PW-173). <\/p>\n
We   have   considered   all   these   contentions   but   we   fail   to   follow   the <\/p>\n
interesting defence raised by the appellant in his statement under Section <\/p>\n
313 Cr.P.C. and complete contradictory stand taken while cross-examining <\/p>\n
Nain Singh (PW-20).  We also find nothing in the long story woven by the <\/p>\n
appellant in his statement under Section 313 Cr.P.C. about his activities as <\/p>\n
a RAW agent and about his being sent to Nain Singh (PW-20) by Sanjeev <\/p>\n
Gupta   from   Nepal.     We  do   find   that   there   was   reluctance   on   the   part   of <\/p>\n
Nain Singh (PW-20) to show his identity card which he only showed to the <\/p>\n
Court, but that does not, in any manner, help the defence case.  Even if it <\/p>\n
is   accepted   that   Nain   Singh   (PW-20)   was   working   for   RAW,   it   does   not <\/p>\n
                                                92<\/span><\/p>\n
give credence to the defence theory that it was Nain Singh (PW-20) who <\/p>\n
brought   the   appellant   in   India,   arranged   for   his   stay,   took   his   services, <\/p>\n
arranged   for   his   computer   centre   and   then   ultimately,   falsely   got   him <\/p>\n
implicated.   In the absence of any such suggestion having been made to <\/p>\n
Nain   Singh   (PW-20),   the   tall   claims   made   by   the   defence   cannot   be <\/p>\n
accepted.     We   have   considered   the   evidence   of   all   these   witnesses, <\/p>\n
namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37), <\/p>\n
Yunus   Khan   (PW-4)   and   Ved   Prakash   (PW-173),   but   the   same   do   not <\/p>\n
persuade us to accept the defence theory.  It is obvious that the appellant <\/p>\n
was   staying   with   Nain   Singh   (PW-20)   for   some   time   and   then   used   to <\/p>\n
interact  with  the  other tenants  like Rashid  Ali  (PW-232) and  Adam  Malik <\/p>\n
(PW-31)   and   at   that   time,   he   claimed   to   be   belonging   to   Jammu   and <\/p>\n
claimed   to   be   in   the   business   of   selling   shawls.     It   is   during   that   period <\/p>\n
alone   that   he   got   married   to   Rehmana   Yusuf   Farukhi   barely   a   fortnight <\/p>\n
prior to the incident at the Red Fort.  We, therefore, reject the argument of <\/p>\n
Ms. Kamini Jaiswal on this aspect.\n<\/p>\n<\/p>\n
59.     This   takes   us   to   the   various   bank   transactions   which   throw   much <\/p>\n
light.   Prosecution had claimed that when the diary was recovered on the <\/p>\n
arrest   of   the   appellant,   the   investigating   agency   found   one   telephone <\/p>\n
number   belonging   to   Sher   Zaman   @   Shabbir   who   was   found   to   be   an <\/p>\n
Afghan   national   and   according   to   the   prosecution,   he   used   to   supply <\/p>\n
                                             93<\/span><\/p>\n
Hawala   money   to   the   appellant.     According   to   the   prosecution,   the <\/p>\n
appellant used to deposit the money so received in his own account with <\/p>\n
HDFC   Bank,   opened   on   the   basis   of   fake   documents.     He   also   used   to <\/p>\n
deposit this money in two  bank accounts of Nazir Ahmad Qasid (original <\/p>\n
accused   No.   3)   and   Farooq   Ahmed   Qasid   (original   accused   No.   4). <\/p>\n
According   to   the   prosecution,   this   money   which   the   appellant   used   to <\/p>\n
deposit   in   the   account   of   Nazir   Ahmad   Qasid   (A-3)   and   Farooq   Ahmed <\/p>\n
Qasid (A-4) was distributed to the other terrorists in Srinagar.  Ms. Jaiswal, <\/p>\n
learned   counsel   appearing   on   behalf   of   the   appellant,   claimed   that   the <\/p>\n
prosecution had not been able to prove the link in between Sher Zaman @ <\/p>\n
Shabbir and the appellant.   According to her, the claim of the prosecution <\/p>\n
that Rs.29,50,000\/- was  deposited in the accounts of M\/s. Nazir & Sons, <\/p>\n
Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18)   was   also   not <\/p>\n
established.  The learned counsel argued that the prosecution was able to <\/p>\n
barely   prove   deposit   of   Rs.5   lakhs,   in   the   account   of   appellant   but   had <\/p>\n
failed   to   prove   that   the   appellant   had   deposited   Rs.   29,50,000\/-   in   other <\/p>\n
accounts.     According   to   the   learned   counsel,   even   this   claim   of   the <\/p>\n
prosecution that was based on the evidence of handwriting expert, was not <\/p>\n
properly   proved.     The   learned   counsel   also   pointed   out   that   while   Nazir <\/p>\n
Ahmad   Qasid   (A-3)   and   Farooq   Ahmed   Qasid   (A-4)   were   acquitted,   the <\/p>\n
others including Sher Zaman @ Shabbir (A-13), Zahur Ahmad Qasid (A-<\/p>\n
17), Bilal Ahmad Kawa (A-18) or Athruddin @ Athar Ali (A-19) were never <\/p>\n
                                              94<\/span><\/p>\n
brought to the trial as they were shown to be absconding.  At this juncture, <\/p>\n
we   cannot   ignore   the   evidence   of   Kashi   Nath   (PW-46),   an   employee   of <\/p>\n
MTNL   (PW-46),   who   deposed   that   telephone   number   3969561   was <\/p>\n
installed by him in premises No. 5123 which was the office of Sher Zaman <\/p>\n
@  Shabbir  (A-13).   Very significantly,  this number was  also found in the <\/p>\n
call details of the appellant having Mobile No. 9811278510.   This version <\/p>\n
of Kashi Nath (PW-46) was corroborated by Om Prakash (PW-47).  Again <\/p>\n
Idrish (PW-74) deposed that the cash of Rs.1,01,000\/- was recovered from <\/p>\n
the  shop\/office   of   Sher  Zaman   @  Shabbir  (A-13),   which  shop\/office  was <\/p>\n
raided pursuant to the statement of the appellant.\n<\/p>\n<\/p>\n
60.     First,   the   fact   that   Sher   Zaman   @   Shabbir   (A-13),   Zahur   Ahmad <\/p>\n
Qasid   (A-17)   and   Bilal   Ahmad   Kawa   (A-18)   being   absconding,   does   not <\/p>\n
and   cannot   in   any   manner   establish   the   defence   case   to   the   effect   that <\/p>\n
these   persons   were   never   concerned   with   Hawala   money   through   the <\/p>\n
appellant or otherwise.  As regards the Sher Zaman @ Shabbir (A-13), the <\/p>\n
investigating agency could not have reached the shop of Sher Zaman @ <\/p>\n
Shabbir (A-13) unless the claim of the investigating agency that they found <\/p>\n
his   number   in   the   diary   is   true.     The   fact   of   the   matter   is   that   the <\/p>\n
investigating agency did reach his shop as mentioned in the earlier part of <\/p>\n
this   judgment.     Therefore,   it   cannot   be   disputed   that   the   appellant   had <\/p>\n
some   connection   with   Sher   Zaman   @   Shabbir   (A-13)   who   was   then <\/p>\n
                                               95<\/span><\/p>\n
established   to   be   an   Afghan   national   and   who   remained   absconding   till <\/p>\n
date.   The learned counsel for the defence also argued that Nazir Ahmad <\/p>\n
Qasid   (A-3)  and   Farooq  Ahmed   Qasid  (A-4)  have   been  acquitted  by the <\/p>\n
High Court and that there is no appeal by the State against their acquittal. <\/p>\n
That   may  be   true,   but   that   would   be   a  separate   subject.     At   least   prima <\/p>\n
facie,   that   does   not   help   the   appellant   at   all.     We   will   go   through   the <\/p>\n
reasons for acquittal, after we have considered the evidence regarding the <\/p>\n
bank transactions.  We will consider this evidence now in details.<\/p>\n
61.     It has come in the evidence that the appellant opened an account on <\/p>\n
13.9.2000   with   HDFC   Bank,   New   Friends   Colony,   New   Delhi,   where   his <\/p>\n
address was  given as 102, Kaila Bhatta, Ghaziabad.   The other address <\/p>\n
was given as 18, Gaffur Nagar, Okhla, New Delhi.   The document on the <\/p>\n
basis   of   which   this   account   was   opened   was   the   driving   license   of   the <\/p>\n
appellant.     The   first   thing   that   comes   to   our   mind   is   that   both   these <\/p>\n
addresses were false.  While the appellant had never stayed at 102, Kaila <\/p>\n
Bhatta, Ghaziabad, his address 18, Gaffur Nagar, Okhla, New Delhi was <\/p>\n
totally incorrect.  It has come by way of evidence of Sushil Malhotra (PW-<\/p>\n
210) that on the cash memo of the fees, the appellant wrote his address as <\/p>\n
18,   Gaffur   Nagar,   Okhla,   New   Delhi.     In   fact,   the   appellant   had   never <\/p>\n
resided on this address, the date of the cash memo being 28.3.2000.  The <\/p>\n
prosecution had also examined Iqbal Hassan (PW-79) who had confirmed <\/p>\n
                                                96<\/span><\/p>\n
that   no   such   person   has   ever   lived   in   this   house,   particularly,   on   the <\/p>\n
relevant dates.  Insofar as his learning license is concerned, the appellant <\/p>\n
has   given   his   address   as   B-17,   Jangpura.     On   that   basis,   he   got   his <\/p>\n
learning license from Sarai Kale Khan Authority.   He has never stayed in <\/p>\n
this   address   either.     It   has   also   come   in   the   evidence   of   Inspector   S.K. <\/p>\n
Sand (PW-230) that learner’s license bearing address B-17, Jangpura was <\/p>\n
fake  and  he further asserted that  the  area of Jangpura  never falls under <\/p>\n
the   authority   of   RTO,   Sarai   Kale   Khan.     There   is   a   report   of   the   Motor <\/p>\n
licensing   authority   vide   Exhibit   PW-230\/C   that   the   learner’s   license   was <\/p>\n
fake.   All this was confirmed by Narayan Singh (PW-6), UDC, Sarai Kale <\/p>\n
Khan Authority and Ajit Singh Bajaj (PW-52).  Insofar as driving license is <\/p>\n
concerned,   there   is   evidence   of   Hazarul   Hasan,   RTO   Office,   Ghaziabad <\/p>\n
that   this   driving   license   was   issued   from   Ghaziabad   in   favour   of   the <\/p>\n
appellant   through   Ms.   Mamta   Sharma   (PW-16),   ARTO   vide   Exhibit   PW-<\/p>\n
13\/A which is a copy of the driving license and Exhibit PW-22\/C which is <\/p>\n
also   a   copy   of   the   driving   license.     Significantly   enough,   for   this,   the <\/p>\n
address   was   shown   to   be   102,   Kaila   Bhatta,   Ghaziabad.     This   was   for <\/p>\n
reason   that   unless   the   appellant   had   shown   himself   a   resident   of <\/p>\n
Ghaziabad,   he   could   not   have   got   the   driving   license   issued   through <\/p>\n
Ghaziabad authority.   Therefore, his address found on the driving license <\/p>\n
as 102, Kaila Bhatta, Ghaziabad was itself a false address.   This address <\/p>\n
was   on   the   basis   of   the   ration   card   which   was   a   fake   ration   card   in   the <\/p>\n
                                            97<\/span><\/p>\n
name  of  appellant’s   wife  Bano,   who   was   allegedly  residing  at  102,  Kaila <\/p>\n
Bhatta, Ghaziabad.  All this was proved to be false by Azad Khalid (PW-1), <\/p>\n
Yashpal   Singh,   Supply   Inspector,   Department   of   Food   and   Supply, <\/p>\n
Ghaziabad   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer,   Food   and <\/p>\n
Civil Supply Department, Ghaziabad (PW-3).  There is another ration card <\/p>\n
which he got prepared in which his wife’s name was shown as Mrs. Bano <\/p>\n
alongwith   children.     The   address  of   this  ration   card   was   shown  to  be  F-<\/p>\n
12\/12,   Batla   House,   Okhla,   New   Delhi,   where   he   never   resided. <\/p>\n
Therefore, on the basis of his driving license, when he got his HDFC Bank <\/p>\n
account   opened,   it   is   obvious   that   he   had   given   false   information,   much <\/p>\n
less   regarding   his   residential   address   which   was   also   mentioned   on   his <\/p>\n
driving license and which was not true.\n<\/p>\n<\/p>\n
62.    The prosecution proved 9 cash deposit slips of Grindlays Bank, the <\/p>\n
total   amount   being   Rs.29,50,000\/-.     According   to   the   prosecution,   these <\/p>\n
were   in   appellant’s   handwriting   while   depositors’   name   has   been <\/p>\n
mentioned   as   Aslam,   Salim   Khan,   R.K.   Traders   and   Rashid.     We   have <\/p>\n
already   discussed   about   the   fake   residential   address   given   by   the <\/p>\n
appellant while opening the account with HDFC Bank.   The details of this <\/p>\n
account were proved by Sanjeev Srivastava (PW-22).  He proved Exhibits <\/p>\n
PW-22\/B, C and F.  Exhibit PW-22\/F is a copy of the account statement of <\/p>\n
Rehmana,   the   wife   of   the   accused   which   suggests   that   from   15.9.2000 <\/p>\n
                                             98<\/span><\/p>\n
onwards   upto   14.12.2000,   on   various   dates,   amounts   like   Rs.10,000\/-, <\/p>\n
Rs.40,000\/-, Rs.50,000\/-, Rs.1,50,000\/-, Rs.2,00,000\/- etc. were deposited <\/p>\n
in   cash.     The   total   amount   deposited   was   Rs.5,53,500\/-.     There   is <\/p>\n
absolutely   no   explanation   by   the   appellant   about   the   source   from   which <\/p>\n
these amounts came.  Corroborating evidence to the evidence of Sanjeev <\/p>\n
Srivastava (PW-22) is in the shape of Rishi Nanda (PW-23) and Inspector <\/p>\n
Ved Prakash (PW-173).  Ved Prakash (PW-173) had found the ration card <\/p>\n
in   the   name   of   the   appellant,   his   driving   license,   cheque   book   of   HDFC <\/p>\n
Bank in his name, Passport of Rehmana (wife of the appellant), a cheque <\/p>\n
book of State Bank of India, a digital diary and a personal diary and some <\/p>\n
other   documents.     From   these,   Ved   Prakash   (PW-173)   found   that   there <\/p>\n
were   three   accounts,   namely,   in   Standard   Chartered   Bank,   Connaught <\/p>\n
Place, New Delhi in the names of M\/s. Nazir & Sons, Farooq Ahmed Qasid <\/p>\n
(A-4)   and   Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers <\/p>\n
32263962,   28552609   and   32181669   respectively.     He   also   detected <\/p>\n
account   number   0891000024322  in  HDFC   Bank  which   was  opened  with <\/p>\n
the help of the driving license.  Another witness S.I. Harender Singh (PW-<\/p>\n
194) had prepared the memo of house search.  P.R. Sharma (PW-9), who <\/p>\n
was   from   State   Bank   of   India,   deposed   that   account   no.   5817   was <\/p>\n
belonging   to   Rehmana   Yusuf   Farukhi   in   which   amounts   of   Rs.50,000\/-, <\/p>\n
Rs.1,50,000\/-,   Rs.52,500\/-   and   Rs.30,000\/-   were   deposited.     He   proved <\/p>\n
the   relevant   deposit   slips   also.     Another   witness   O.P.   Singh   (PW-64) <\/p>\n
                                             99<\/span><\/p>\n
corroborated   the   evidence   of   P.R.   Sharma   (PW-9).     The   most   important <\/p>\n
link   with   the   HDFC   account   as   also   with   the   deposit   slips   of   Standard <\/p>\n
Chartered   Grindlays   Bank   came   to   light.   Dr.   M.A.   Ali   (PW-216),   SSO, <\/p>\n
CFSL, CBI, New Delhi, on the basis of his report, deposed that the account <\/p>\n
opening form of HDFC Bank of the appellant, 9 deposit slips of Standard <\/p>\n
Chartered Grindlays Bank as also deposit slips of the State Bank of India <\/p>\n
account of Rehmana Yusuf Farukhi bore the handwriting of the appellant. <\/p>\n
This clinches the issue about the account opened in HDFC Bank.   It is to <\/p>\n
be noted that there were three accounts in Standard Chartered Grindlays <\/p>\n
Bank in the name of M\/s. Nazir & Sons, Farooq Ahmed Qasid (A-4) and <\/p>\n
Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers   32263962, <\/p>\n
28552609 and 32181669 respectively.  The investigating agency collected <\/p>\n
the documents from Standard Chartered Grindlays Bank including 9 cash <\/p>\n
deposit   receipts   as   also   documents   regarding   the   account   numbers <\/p>\n
32263962, 28552609 and 32181669.  9 cash deposit slips are purportedly <\/p>\n
in the name of Aslam, Salim Khan, R.K. Traders and Rashid and all these <\/p>\n
have   been   proved   to   be   in   the   handwriting   of   the   appellant.     We   have <\/p>\n
already discussed about the account of HDFC Bank which was opened on <\/p>\n
the   basis   of   the   driving   license   having   a   false   address.     We   have   also <\/p>\n
referred to the bank documents in respect of Rehmana Yusuf Farukhi and <\/p>\n
the   amounts   having   been   deposited   in   her   account   and   also   the   pay-in <\/p>\n
(deposit)  slips in respect of her  accounts.   It must be  noted that at least <\/p>\n
                                                10<\/span><\/p>\n
one document out of these being questioned document No. 30B has been <\/p>\n
proved to be in the handwriting of the appellant which has been proved by <\/p>\n
the expert evidence of Dr. M.A. Ali (PW-216).  We have already referred to <\/p>\n
the evidence of Ved Prakash (PW-173) and S.I. Harender Singh (PW-194) <\/p>\n
about the amounts belonging to the appellant and about the amounts paid <\/p>\n
by the appellant to the tune of Rs.29,50,000\/- in the accounts of M\/s. Nazir <\/p>\n
&   Sons,   Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18), <\/p>\n
account   numbers   of   which   have   already   been   mentioned   above   and   the <\/p>\n
fact   that   9   deposit   slips   were   in   the   handwriting   of   the   appellant.     It   has <\/p>\n
come in the evidence of Subhash Gupta (PW-27) that he had handed over <\/p>\n
photocopy of the account opening forms of the three accounts mentioned <\/p>\n
above,   in   which   Rs.29,50,000\/-   were   deposited   by   the   appellant,   to <\/p>\n
Inspector   Ved   Prakash   (PW-173).     We   then   have   the   evidence   of   B.A. <\/p>\n
Vani, Branch Manager, Standard Chartered Grindlays Bank, Srinagar, who <\/p>\n
claimed   that   three   bank   accounts   mentioned   above   were   opened   during <\/p>\n
his   tenure   and   in   his   branch   belonging   to   M\/s.   Nazir   &   Sons,   Farooq <\/p>\n
Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18).  He pointed out that the <\/p>\n
amounts which were deposited in these accounts (by the appellant) were <\/p>\n
further distributed by 40 original cheques by various persons.  He referred <\/p>\n
to 3 cheques of Farooq Ahmed Qasid (A-4), 29 cheques of M\/s. Nazir & <\/p>\n
Sons and 8 cheques of Bilal  Ahmad  Kawa  (A-18).   There  is  evidence of <\/p>\n
Kazi   Shams,   SHO,   Sadar,   Srinagar   (PW-99)   who   had   recovered   the <\/p>\n
                                             10<\/span><\/p>\n
cheque book of M\/s. Nazir & Sons at the instance of Nazir Ahmad Qasid <\/p>\n
(A-3)   and   Farooq   Ahmed   Qasid   (A-4).     We   also   have   the   evidence   of <\/p>\n
Mohd. Riaz Ahmed, PA to DM, Badgam, J&K.  He deposed that there was <\/p>\n
a   detention   order   passed   against   Nazir   Ahmad   Qasid   (A-3)   and   Farooq <\/p>\n
Ahmed Qasid (A-4).   In the detention order, it was stated that both these <\/p>\n
accused persons were  connected with  a foreign mercenary named Abbu <\/p>\n
Bilal   and   they   agreed   to   receive   the   fund   from   `LeT’   outfit   in   separate <\/p>\n
account opened at ANZ Grindlays  Bank, Srinagar and had also received <\/p>\n
the first installment of Rs.3 lakhs in the account of Bilal Ahmad Kawa (A-<\/p>\n
18),   which   money  was   withdrawn   by  him.   The   evidence  of  Hawa Singh <\/p>\n
(PW-228)  is   to  the  effect  that   he  had   received  40  cheques  of  the   above <\/p>\n
mentioned accounts, which evidence was  corroborated by S.I. Amardeep <\/p>\n
Sehgal (PW-227) and S.I. Himmat Ram (PW-45).  It was Inspector Pratap <\/p>\n
Singh (PW-86) who had found the account numbers of M\/s. Nazir & Sons, <\/p>\n
Farooq  Ahmed  Qasid  (A-4)  and  Bilal  Ahmad  Kawa (A-18) from the diary <\/p>\n
seized   from   the   appellant.     Further,   the   evidence   of   Sanjeev   Srivastava, <\/p>\n
Manager,   HDFC   Bank   (PW-22)   went   on   to   establish   that   it   was   the <\/p>\n
appellant   who   had   opened  the  bank   account  in  the  New  Friends  Colony <\/p>\n
Branch of the HDFC Bank on the basis of his driving license, in which an <\/p>\n
amount of Rs.6 lakhs was deposited.   This evidence was corroborated by <\/p>\n
Rishi   Nanda   (PW-23).     P.R.   Sharma   (PW-9),   Manager-SBI,   Ghazipur <\/p>\n
spoke about the amounts received in the bank account of Rehmana Yusuf <\/p>\n
                                            10<\/span><\/p>\n
Farukhi.     This   evidence   was   corroborated   by   O.P.   Singh,   Manager-SBI, <\/p>\n
Ghazipur   (PW-64).     It   has   already   been   mentioned   that   as   per   the <\/p>\n
evidence   of   Dr.   M.A.   Ali   (PW-216),   the   account   opening   form   of   HDFC <\/p>\n
Bank,   New   Friends   Colony   Branch   and   9   deposit   slips   of   Standard <\/p>\n
Chartered   Grindlays   Bank,   Connaught   Place,   New   Delhi   as   also   the <\/p>\n
deposit slip of State Bank of India account of Rehmana Yusuf Farukhi bore <\/p>\n
the handwriting of the appellant.   The report is Exhibit PW-216\/A at page <\/p>\n
Nos. 1-11.\n<\/p>\n<\/p>\n
63.    The argument of Ms. Jaiswal, learned counsel appearing on behalf <\/p>\n
of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid <\/p>\n
(A-4) have already been acquitted, is of no consequence.   We may point <\/p>\n
out that there is absolutely no explanation by the appellant either by way of <\/p>\n
cross-examination   of   the   witnesses   or   by   way   of   his   statement   under <\/p>\n
Section   313   Cr.P.C.   as   to   where   all   these   amounts   had   come   from   and <\/p>\n
why did he deposit huge amounts in the three accounts mentioned above. <\/p>\n
Rs.29,50,000\/- is not an ordinary sum.   Also, there is no evidence that in <\/p>\n
his   account   in   HDFC   Bank,   the   appellant   has   Rs.6   lakhs.     Further   very <\/p>\n
sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in <\/p>\n
her account in the State Bank of India.   How did the appellant receive all <\/p>\n
these amounts and from where, are questions that remain unanswered in <\/p>\n
the   absence   of   any   explanation   and   more   particularly   because   the <\/p>\n
                                               10<\/span><\/p>\n
appellant had no ostensible means of livelihood.  It would have to be held <\/p>\n
that  the appellant  was  dealing with  huge sums of money and  he has no <\/p>\n
explanation   therefor.     This   is   certainly   to   be   viewed   as   an   incriminating <\/p>\n
circumstance against the appellant.  The silence on this issue is only telling <\/p>\n
of   his   nefarious   design.     It   is   obvious   that   the   appellant   was   a   very <\/p>\n
important   wheel   in   the   whole   machinery   which   was   working   against   the <\/p>\n
sovereignty   of   this   country.     All   this   was   supported   with   the   fact   that   9 <\/p>\n
deposit   slips,   the   bank   forms   for   opening   the   accounts,   the   slip   through <\/p>\n
which  amount   was  deposited   in  the  account  of  Rehmana   Yusuf   Farukhi, <\/p>\n
were   all   proved   to   be   in   the   handwriting   of   the   appellant.     We   have <\/p>\n
absolutely no reason to reject the evidence of handwriting expert.   All this <\/p>\n
suggests that the appellant was  weaving his web  of terrorist activities by <\/p>\n
taking   recourse   to   falsehood   one   after   the   other   including   his   residential <\/p>\n
address and also creating false documents.\n<\/p>\n<\/p>\n
64.     Ms.   Jaiswal,   learned   defence   counsel   argued   that   merely   on   the <\/p>\n
basis   of   the   evidence   of   the   hand   writing   expert,   no   definite   conclusion <\/p>\n
could be drawn that it was the appellant who deposited all this money into <\/p>\n
the   three   accounts   of   Nazir   Sons,   Bilal   Ahmad   Kawa   and   Faruk   Ahmad <\/p>\n
Qasid.   She also urged that accused Nos. 3 and 4 were acquitted by the <\/p>\n
Court.   We have already clarified earlier that the acquittal of Qasid would <\/p>\n
be   of   no   consequence   for   the   simple   reason   that   they   may   have   been <\/p>\n
                                             10<\/span><\/p>\n
given   the   benefit   of   doubt   regarding   their   knowledge   about   the   said <\/p>\n
amounts being deposited in their accounts or for that matter their dispatch <\/p>\n
for   the   terrorist   activities.     Some   more   evidence   would   have   been <\/p>\n
necessary for that purpose.   It is undoubtedly true that there should have <\/p>\n
been an appeal against their acquittal.  However, that does not absolve the <\/p>\n
appellant completely since he had to explain as to where he was receiving <\/p>\n
money from for putting in the accounts of Qasid.  This circumstance of the <\/p>\n
appellant in failing to explain the huge amount and its source would be of <\/p>\n
immense importance and would go a long way to show that the accused <\/p>\n
was receiving huge amounts from undisclosed sources.<\/p>\n
65.    A  very lame explanation has been given  about the amounts in the <\/p>\n
account  of  Rehmana.    It  was   suggested   that  the  monies  were   gifts  from <\/p>\n
relatives   on   account   of   her   marriage.     Her   mother   DW-1   also   tried   to <\/p>\n
suggest   the   same.     The   explanation   is   absolutely   false   for   the   simple <\/p>\n
reason   that   there   is   no   proof   about   such   a   plea.   Everything   about   this <\/p>\n
marriage is suspicious.  It is only on 8.12.2000 that the accused claims to <\/p>\n
have   got   married   to   Rehmana.     It   was   under   mysterious   circumstances <\/p>\n
and   in   a   secret   manner   that   the   accused   got   married   to   Rehmana.     Dr. <\/p>\n
M.A.   Ali   (DW-216)   has   been   examined   by   the   prosecution   as   the   hand <\/p>\n
writing expert who examined two pay-in-slips, namely, Exhibits PW-173\/F <\/p>\n
and PW-173\/G.   The other documents which  were  given for examination <\/p>\n
                                            10<\/span><\/p>\n
were Q 29, Q30, Q30B, Q 30C, Q 31 and Q32 which are Exhibit PW 9\/C to <\/p>\n
F.   Out of these, some of the documents were seized from the bank vide <\/p>\n
seizure memo Exhibit PW 9\/A.   Document Nos.Mark Q 30 and 30 A and <\/p>\n
Mark 30B have been proved to be particularly filled in the hand writing of <\/p>\n
Mohd.   Arif   @   Ashfaq   and   partly   in   hand   writing   of   Rehmana.     This <\/p>\n
suggests the amount of Rs.15,000\/- has been deposited in the account of <\/p>\n
Rehmana on 21.11.2000.   Similarly, document marked Q-6, Q-6A and Q-<\/p>\n
6B were also proved to be in the hand writing of the appellant and partly in <\/p>\n
hand writing of Rehmana.  Accused has no explanation to offer.  There can <\/p>\n
be no dispute that the accused had been depositing huge amount into the <\/p>\n
account of Rehmana.   Considering the dates on which the deposits were <\/p>\n
made,   the   argument   of   the   learned   counsel   that   she   received   small <\/p>\n
amounts by way of gifts for her marriage which had never taken place till <\/p>\n
then, has to fall to ground.  Again, accused Rehmana was acquitted as the <\/p>\n
prosecution   was   not   able   to   prove   that   she   had   been   a   party   to   the <\/p>\n
conspiracy or knew about the conspiracy.   That however, cannot absolve <\/p>\n
the appellant. The reluctance on the part of the prosecution to file appeal <\/p>\n
against  her  acquittal  can  also  not help  the  accused.    It is  strange  that  a <\/p>\n
person who is not even an Indian National and is a citizen of Pakistan got <\/p>\n
into touch with this lady and got married to her on 8.12.2000 and before <\/p>\n
that he should be depositing huge amounts into the accounts of Rehmana. <\/p>\n
This   becomes   all   the   more   strange   that   Rehmana   had   no   reasonable <\/p>\n
                                            10<\/span><\/p>\n
explanation   for   receiving   these   amounts.     We,   therefore,   view   this <\/p>\n
circumstance as an incriminating circumstance.  We entirely agree with the <\/p>\n
High Court as well as the trial Court for the inferences drawn in respect of <\/p>\n
these deposits made by the accused.\n<\/p>\n<\/p>\n
66.    Ms. Jaiswal  then severely criticized the finding of the Courts below <\/p>\n
accepting the disclosures made by the appellant and the discoveries made <\/p>\n
pursuant thereto.  The main discovery which the learned counsel assailed <\/p>\n
was the statement in pursuance of which the whereabouts of Abu Shamal <\/p>\n
were made known to the investigating agency. The learned counsel urged <\/p>\n
that   no   disclosure   statement   was   recorded   immediately   after   the <\/p>\n
apprehension of the accused.  She, therefore, urged that it could not have <\/p>\n
been   held   by   the   Courts   below   that   the   information   regarding   the   Batla <\/p>\n
house   and   Abu   Shamal   being   a   terrorist   in   hiding   on   that   address <\/p>\n
proceeded from the appellant or that he had the knowledge thereof.   The <\/p>\n
learned   counsel   basically   rests   her   contention   on   the   fact   that   before <\/p>\n
accepting the fact that the accused gave some information in pursuance of <\/p>\n
which some discoveries were made, the investigating agency must record <\/p>\n
a statement and in the absence of such a statement, discovery cannot be <\/p>\n
attributed to the accused.  Our attention was drawn to the evidence of PW-<\/p>\n
229   who   deposed   that   a   statement   was   recorded   immediately   on   the <\/p>\n
apprehension of the appellant. The date mentioned on Exhibit PW 148 E is <\/p>\n
                                              10<\/span><\/p>\n
26.12.2000.     According   to   the   learned   counsel   if   the   accused   was <\/p>\n
apprehended on the early night of 25.12.2000 then the date on Exhibit PW <\/p>\n
148   E   could   not   have   been   26.12.2000.     The   counsel   further   says   that <\/p>\n
therefore   the   Batla   house   encounter   was   prior   to   recording   of   the <\/p>\n
disclosure statement of the accused.  The contention is not correct.  It will <\/p>\n
be   seen   that   immediately   after   the   apprehension   the   appellant   was   not <\/p>\n
formally arrested, though he was in the custody of the investigating team. <\/p>\n
The learned counsel pointed out that the witness’s statement was that the <\/p>\n
accused was “arrested” and his disclosure statement was recorded.   PW-<\/p>\n
229 had undoubtedly stated so.  There is other evidence on record that his <\/p>\n
statement was recorded.   It is indeed in that statement which is recorded <\/p>\n
that he disclosed about his involvement in the Red Fort shoot out, the role <\/p>\n
of   Abu   Shamal   and   about   an   AK-56   rifle.     The   witness   went   on   to   state <\/p>\n
further   that   the   accused   disclosed   that   his   associate   Abu   Shamal   was <\/p>\n
staying in the hide out at house No. G-73, first floor, Batla House, Okhla. <\/p>\n
He also disclosed that he was having weapons and grenades and he also <\/p>\n
disclosed   that   Abu   Shamal   is   a   trained   militant   of   LeT   and   member   of <\/p>\n
suicide   squad.     Indeed,   had   this   information   not   been   disclosed <\/p>\n
immediately   after   his   apprehension,   there   was   no   question   of   the <\/p>\n
investigating   agency   coming   to   know   about   the   whereabouts   of   Abu <\/p>\n
Shamal.    Indeed,  in pursuance of this information  given  the investigating <\/p>\n
team   did   go   to   the   aforementioned   address   and   an   encounter   did   take <\/p>\n
                                             10<\/span><\/p>\n
place wherein Abu Shamal was killed and large amount of ammunition and <\/p>\n
arms   were   found   at   that   place.     The   learned   counsel   urged   that   in   the <\/p>\n
absence of any “recorded statement” immediately after his apprehension, <\/p>\n
such discovery should not be attributed to the appellant.   For the sake of <\/p>\n
argument,  we  will  assume that  no statement was  recorded  prior to Batla <\/p>\n
House incident.  The learned counsel secondly urged that if admittedly the <\/p>\n
accused appellant was formally arrested on the next day i.e. on 26th, then it <\/p>\n
would   be   axiomatic   that   he   was   not   in   the   custody   of   the   police   and, <\/p>\n
therefore, all that evidence should be rendered as inadmissible.  <\/p>\n
67.    It is indeed true that for normally proving any such information and <\/p>\n
attributing   the   same   to   the   accused   the   said   accused   must   be   in   the <\/p>\n
custody   of   the   prosecution   and   then   when   he   discloses   or   offers   to <\/p>\n
disclose   any   information,   his   statement   is   recorded   by   the   investigating <\/p>\n
agency for lending credibility to the factum of disclosure as also exactitude. <\/p>\n
In pursuance of such information, the investigating agency proceeds and <\/p>\n
obtains   the   material   facts   and   thereafter   executes   a   Panchnama   to   that <\/p>\n
effect.  We have already referred to this question in the earlier part of our <\/p>\n
judgment   that   it   was   indeed   a   very   tense   situation   requiring   extreme <\/p>\n
diligence on the part of the investigating agency whereby the investigating <\/p>\n
agency could not afford to waste a single minute and was required to act <\/p>\n
immediately on the receipt of the information from the appellant.  This was <\/p>\n
                                              10<\/span><\/p>\n
all the more necessary because the investigating agency were dealing with <\/p>\n
an  extremely dangerous  terrorist causing serious danger  to the safety of <\/p>\n
the society.  We do not see anything wrong in this approach on the part of <\/p>\n
the   investigating  agency.     The  only  question  is  whether  the   investigating <\/p>\n
agency discovered something in pursuance of the information given by the <\/p>\n
accused.   The events which followed do show that it is only in pursuance <\/p>\n
of,   and   as   a   result   of   the   information   given   by   the   accused   that   the <\/p>\n
investigating agency zeroed on the given address only to find a dreaded <\/p>\n
terrorist like Abu Shamal holed up in that address with  huge ammunition <\/p>\n
and the fire arms.  If that was so, then the question is as to whether we can <\/p>\n
reject   this   discovery   evidence   merely   because,   as   per   the   claim   of <\/p>\n
defence, a formal statement was not recorded and further merely because <\/p>\n
a formal arrest was not made of the accused.\n<\/p>\n<\/p>\n
68.     Firstly   speaking   about   the   formal   arrest   for   the   accused   being   in <\/p>\n
custody   of   the   investigating   agency   he   need   not   have   been   formally <\/p>\n
arrested.     It   is   enough   if   he   was   in   custody   of   the   investigating   agency <\/p>\n
meaning   thereby   his   movements   were   under   the   control   of   the <\/p>\n
investigating agency.  A formal arrest is not necessary and the fact that the <\/p>\n
accused was in effective custody of the investigating agency is enough.  It <\/p>\n
has been amply proved that the accused was apprehended, searched and <\/p>\n
taken   into   custody.     In   that   search   the   investigating   agency   recovered   a <\/p>\n
                                             11<\/span><\/p>\n
pistol   from   him   along   with   live   cartridges,   which   articles   were   taken   in <\/p>\n
possession   of   the   investigating   agency.     This   itself   signifies   that <\/p>\n
immediately   after   he   was   apprehended,   the   accused   was   in   effective <\/p>\n
custody of the investigating agency.\n<\/p>\n<\/p>\n
69.    Now   coming   to   the   second   argument   of   failure   to   record   the <\/p>\n
information, it must be held that it is not always necessary.  What is really <\/p>\n
important   is   the   credibility   of   the   evidence   of   the   investigating   agency <\/p>\n
about   getting   information\/statement   regarding   the   information   from   the <\/p>\n
accused.  If the evidence of the investigating officer is found to be credible <\/p>\n
then   even   in the   absence  of  a  recorded   statement,  the  evidence   can  be <\/p>\n
accepted   and  it   could  be   held  that  it   was   the  accused  who  provided   the <\/p>\n
information on the basis of which a subsequent discovery was made.  The <\/p>\n
question   is   that   of   credibility   and   not   the   formality   of   recording   the <\/p>\n
statement.     The   essence   of   the   proof   of   a   discovery   under   Section   27, <\/p>\n
Evidence  Act  is  only  that   it   should  be   credibly  proved   that   the   discovery <\/p>\n
made   was   a   relevant   and   material   discovery   which   proceeded   in <\/p>\n
pursuance of the information supplied by the accused in the custody.  How <\/p>\n
the prosecution proved it, is to be judged by the Court but if the Court finds <\/p>\n
the fact of such information having been given by the accused in custody is <\/p>\n
credible   and   acceptable   even   in   the   absence   of   the   recorded   statement <\/p>\n
and   in   pursuance   of   that   information   some   material   discovery   has   been <\/p>\n
                                             11<\/span><\/p>\n
effected then the aspect of discovery will not suffer from any vice and can <\/p>\n
be   acted   upon.     Immediately   after   the   apprehension   of   the   appellant   he <\/p>\n
spilled the information.   In pursuance of that information the investigating <\/p>\n
agency acted with expediency and speed which in the circumstances then <\/p>\n
prevailing   was   extremely   necessary   nay   compulsory.     Any   investigating <\/p>\n
agency in such sensational matter was  expected not to waste  its time in <\/p>\n
writing down  the Panchnama and memorandum.   Instead they had to be <\/p>\n
on a damage control mode.  They had a duty to safeguard the interests of <\/p>\n
the society also.   Therefore, if the investigating agency acted immediately <\/p>\n
without wasting its time in writing memoranda of the information given by <\/p>\n
the   accused,   no   fault   could   be   found.     Ultimately,   this   timely   and   quick <\/p>\n
action yielded results and indeed a dreaded terrorist was found holed up in <\/p>\n
the   address  supplied  by  the  appellant-accused  with   sizeable   ammunition <\/p>\n
and   fire   arms.     We   do   not,   therefore,   find   any   thing   wrong   with   the <\/p>\n
discovery even if it is assumed that the information was not “recorded” and <\/p>\n
hold   that   immediately   after   his   apprehension,   the   accused   did   give   the <\/p>\n
information which  was  known to him alone in pursuance of which  a very <\/p>\n
material  discovery was  made.    The  learned  Solicitor  General relied  on  a <\/p>\n
reported   decision   in  Suresh   Chandra   Bahri   v.   State   of   Bihar<\/a>   [Cited  <\/p>\n
supra].    In   that   case,   no   discovery   statement   was   recorded   by   the <\/p>\n
investigating  officer PW  -59 Rajeshwar  Singh  of the information  supplied <\/p>\n
by the accused to him.   Further, no public witness  was  examined by the <\/p>\n
                                              11<\/span><\/p>\n
prosecution  to  support  the   theory  that  such  an   information  was  given   by <\/p>\n
the   accused   to   him   in   pursuance   of   which   some   material   discovery   was <\/p>\n
made.     This   Court,   however,   in   spite   of   these   two   alleged   defects, <\/p>\n
accepted   the   evidence   of   discovery   against   the   accused   on   the   basis   of <\/p>\n
the evidence of Rajeshwar Singh PW-59.  The Court mentions:<\/p>\n
               “It   is   true   that   no   disclosure   statement   of   Gurbachan  <\/p>\n
               Singh who is said to have given information  about the  <\/p>\n
               dumping   of   the   dead   body   under   the   hillock   of   Khad  <\/p>\n
               gaddha   dumping   gfdound   was   recorded   but   there   is  <\/p>\n
               positive statement of Rajeshwar Singh, PW 59, Station  <\/p>\n
               House   Officer   of   Chutia   Police   Station   who   deposed  <\/p>\n
               that during the course of investigation Gurbachan Singh  <\/p>\n
               Led   hhim   to   Khad   Gaddha   hillock   along   with   an  <\/p>\n
               Inspector Rangnath Singh and on pointing out the place  <\/p>\n
               by   Gurbachan   Singh   he   got   that   place   unearthed   by  <\/p>\n
               labourers where a piece of blanket, pieces of saree and  <\/p>\n
               rassi   were   found   which   were   seized   as   per   seizure  <\/p>\n
               memo Ext.5.  He further deposed that he had taken two  <\/p>\n
               witnesses   along   with   him   to   the   place   where   these  <\/p>\n
               articles   were   found.     Rajeshwar   Singh   PW   59   was  <\/p>\n
               cross-examined   with   regard   to   the   identity   of   the  <\/p>\n
               witness Nand Kishore who is said to be present at the  <\/p>\n
               time of recovery  and seizure  of the articles  as  well as  <\/p>\n
               with   regard   to   the   identity   of   the   articles   seized   vide  <\/p>\n
               paragraphs 18, 21 and 22 of his deposition but it may  <\/p>\n
               be pointed out that no cross-examination was directed  <\/p>\n
               with   regard   to   the   disclosure   statement   made   by   the  <\/p>\n
               appellant Gurbachan Singh or on the point that he led  <\/p>\n
               the   police   party   and   others   to   the   hillock   where   on   hi  <\/p>\n
               pointing   out,   the   place   as   unearthed   where   the  <\/p>\n
               aforesaid articles were found and seized.  It is true that  <\/p>\n
               no public witness was examined  by the prosecution in  <\/p>\n
               this behalf but the evidence of Rajeshwar Singh PW59  <\/p>\n
               does not suffer from any doubt or infirmity with regard to  <\/p>\n
               the   seizure   of   these   articles   at   the   instance   of   the  <\/p>\n
               appellant   Gurbachan   Singh   which   on   TI   Parade   were  <\/p>\n
                                               11<\/span><\/p>\n
                found to be the articles used in wrapping the dead body  <\/p>\n
                of Urshia.”<\/p><\/blockquote>\n
        The   court   then   stated   in   paragraph   71   that  the   two   essential  <\/p>\n
requirements of application of Section 27 of Evidence Act are that (1) the  <\/p>\n
person   giving   information   was   accused   of   any   offence;   and   (2)   he   must  <\/p>\n
also   be   in   police   custody.    The   Court   then   went   on   to   hold   that   the <\/p>\n
provisions of Section 27 of the Evidence Act are based on the view that if <\/p>\n
the fact is actually discovered in consequence of information given, some <\/p>\n
guarantee is afforded thereby that the information is true and consequently <\/p>\n
the said information can safely be allowed to be given in evidence because <\/p>\n
if such an information is further fortified and confirmed by the discovery of <\/p>\n
articles  or   the   instrument   of  crime   and  which   leads   to  the   belief   that   the <\/p>\n
information about the confession made as to the articles of crime cannot <\/p>\n
be false. This is precisely what has happened in the present case.  Indeed, <\/p>\n
the   appellant   was   accused   of   an   offence   and   he   was   also   in   the   police <\/p>\n
custody.  We have already explained the ramifications of the term “being in  <\/p>\n
custody”.     This   judgment   was   then   followed   in  Vikram   Singh   &   Ors   v.  <\/p>\n
State of Punjab [2010 (3) SCC 56]  when again the Court reiterated that <\/p>\n
there   was   no   need   of   a   formal   arrest   for   the   applicability   of   Section   27. <\/p>\n
The Court therein took the stock of the case law on the subject and quoted <\/p>\n
from the decision of State of U.P. v. Deoman Upadhyaya<\/a>  [AIR 1960 SC <\/p>\n
                                               11<\/span><\/p>\n
1125] regarding the principles involved in Sections 24 to 30, Evidence Act <\/p>\n
and  more   particularly  Sections  25,   26   and   27   of  the   Evidence   Act.    The <\/p>\n
Court ultimately held in case of Deoman Upadhyay (cited supra) that the <\/p>\n
expression `accused of any offence’ in Section 27 as in Section 25 is also <\/p>\n
descriptive of the person concerned i.e. against a person who is accused <\/p>\n
of  an  offence.   Section  27  renders  provable  certain statements  made by <\/p>\n
him while he was in the custody of a police officer.  Section 27 is founded <\/p>\n
on the principle that even though the evidence relating to the confessional <\/p>\n
or   other   statements   made   by   a   person   while   he   is   in   the   custody   of   the <\/p>\n
police   officer,   is   tainted   and,   therefore,   inadmissible   if   the   truth   of   the <\/p>\n
information given by him is assured by the discovery of a fact, it may be <\/p>\n
presumed   to  be   untainted   and,  therefore,   declared   provable  insofar   as  it <\/p>\n
distinctly relates to the fact thereby discovered.  The Court also pointed out <\/p>\n
the distinction between Sections 27 and 26, Evidence Act in para 40 of the <\/p>\n
judgment   of  Vikaram   Singh   (cited   supra).    The   Court   came   to   the <\/p>\n
conclusion that the principle that Section 27 would be provable only after <\/p>\n
the formal arrest under Section 46 (1) of the Code could not be accepted. <\/p>\n
It may be mentioned here that even in the decision in State (NCT of Delhi)  <\/p>\n
v.   Navjot   Sandhu<\/a>   @   Afsan   Guru   [2005   (11)   SCC   600]   relying   on   the <\/p>\n
celebrated decision of  Pulukuri Kottaya v. King Emperor  [AIR 1947 PC <\/p>\n
67],   the   Court   held   “we   are   of   the   view   that  Pulukuri   Kottaya   (cited  <\/p>\n
supra)  case   is   an   authority   for   the   proposition   that   ‘discovery   of   fact’  <\/p>\n
                                             11<\/span><\/p>\n
cannot be equated to the object produced or found. It is more  than that.  <\/p>\n
The discovery of fact arises by reason of the fact that the information given  <\/p>\n
by the accused exhibited the knowledge or the mental awareness of the  <\/p>\n
informant as to its existence at a particular place”. This   is   precisely   what <\/p>\n
has happened in this case.   It is only because of the discovery made by <\/p>\n
the appellant that Abu Shamal with the arms and ammunition was found at <\/p>\n
the address disclosed by the appellant.\n<\/p>\n<\/p>\n
70.    Ms. Kamini Jaiswal, learned counsel appearing for the appellant also <\/p>\n
severely   attacked   the   discovery   made   and   recorded   on   the   morning   of <\/p>\n
26.12.2000.     By   that   discovery,   the   appellant   had   given   the   information <\/p>\n
about the whole plot, with which we are not concerned, but in addition to <\/p>\n
that, he had showed his readiness to point out the AK-56 rifle which was <\/p>\n
thrown immediately after the attack, behind the Red Fort.  In pursuance of <\/p>\n
that,   the   appellant   proceeded   alongwith   the   investigating   party   and   then <\/p>\n
from the spot that he had shown, AK-56 rifle was actually found.   Even a <\/p>\n
bandolier   was   found   containing   hand   grenades.     The   learned   counsel <\/p>\n
argued that this was a farcical discovery and could not be attributed to the <\/p>\n
appellant, as in fact, immediately after the attack on 22.12.2000, the police <\/p>\n
party had covered the whole area not only during the darkness of the night <\/p>\n
on   22.12.2000,   but   also   in   the   following   morning.     She   pointed   out   that <\/p>\n
sniffer   dogs   were   also   used   at   that   time   for   searching   the   suspected <\/p>\n
                                               11<\/span><\/p>\n
terrorists   either   hiding   out   or   leaving   any   trace.     From   this,   the   learned <\/p>\n
counsel argued that it is impossible that the investigating agency could not <\/p>\n
have seen the said rifle and it was impossible that such an important article <\/p>\n
like   AK-56   rifle   and   bandolier   would   go   unnoticed   by   the   investigating <\/p>\n
agency.     She,   therefore   pointed   out   that   this   was   nothing   but   a   poor <\/p>\n
attempt   on   the   part   of   the   investigating   agency   to   plant   the   rifle   and   to <\/p>\n
attribute the knowledge of that rifle falsely to the appellant.   In the earlier <\/p>\n
part  of the judgment, we have  already discussed the evidence regarding <\/p>\n
this discovery where we have referred to the evidence of Inspector Hawa <\/p>\n
Singh   (PW-228),   S.I.   Satyajit   Sarin   (PW-218)   and   SHO   Roop   Lal   (PW-<\/p>\n
234), who all supported the discovery.   This discovery was recorded vide <\/p>\n
Exhibit PW-148\/E.  S.I. Satyajit Sarin (PW-218) corroborated the evidence <\/p>\n
of Inspector Hawa Singh (PW-228) and prepared a seizure memo (Exhibit <\/p>\n
PW-218).   S.I. Amardeep Sehgal (PW-227) also corroborated the version <\/p>\n
given by Inspector Hawa Singh (PW-228) and S.I. Satyajit Sarin (PW-218). <\/p>\n
Two  other  witnesses,   namely,   S.K.   Chadha  (PW-125)   and   N.B.   Bardhan <\/p>\n
(PW-202)   were   also   present   who   inspected   the   AK-56   rifle   found   at   the <\/p>\n
instance   of   the   appellant.     The   learned   counsel   pointed   out   that   if   the <\/p>\n
sniffer dogs were taken there for searching, it would be impossible that the <\/p>\n
investigating agency would  not find the AK-56 rifle which  was  lying  quite <\/p>\n
near to the spot from where the chit and the currency notes were picked up <\/p>\n
by the investigating agency.  In the first place, there is definite evidence on <\/p>\n
                                              11<\/span><\/p>\n
record   that   the   sniffer   dogs   were   not   taken   to   the   spot   from   where   the <\/p>\n
polythene   packet   containing   chit   and   currency   notes   was   recovered. <\/p>\n
Inspector   Hawa   Singh   (PW-228)   is   the   witness   who   specifically   spoke <\/p>\n
about   the   dog   squad   not   having   been   taken   to   that   spot.     We   are   not <\/p>\n
impressed by this argument that the investigating agency had already seen <\/p>\n
the  said   rifle  but  had  chosen   to  plant  it  against   the   appellant.     Even  the <\/p>\n
evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was <\/p>\n
not taken to the back of the Red Fort.  SHO Roop Lal (PW-234) also stated <\/p>\n
that the Sunday Bazar was also not allowed to be held on 22.12.2000.  We <\/p>\n
have no reason to discard this evidence.   That apart, we do not see any <\/p>\n
reason why the investigating agency would plant the aforementioned AK-<\/p>\n
56   rifle,   bandolier   and   hand   grenades   therein,   without   any   rhyme   or <\/p>\n
reason.   True, they were interested in the investigation, but that does not <\/p>\n
mean that  they were  out  to falsely implicate the  appellant.   This is  apart <\/p>\n
from the fact that police officers could not have procured a foreign made <\/p>\n
AK-56   rifle   and   the   foreign   made   grenades   on   their   own   to   be   foisted <\/p>\n
against the appellant.   No such cross-examination appears to have been <\/p>\n
done on those police officers.  It is also difficult to accept the argument that <\/p>\n
anybody   could   have   found   the   rifle   which   was   lying   in   the   thick   bushes. <\/p>\n
There   is   evidence   on   record   that   the   backside   of   the   Red   Fort   had <\/p>\n
substantially thick bushes.  Once the police officers had found the chit and <\/p>\n
the currency notes which gave them a definite direction to proceed in their <\/p>\n
                                                11<\/span><\/p>\n
investigation, it was  not likely that the police officers would visit that spot <\/p>\n
again and that is what had happened.  We are also of the opinion that this <\/p>\n
discovery was fully proved, in that, the appellant had given the information <\/p>\n
that   it   was   Abu   Shamal   @   Faisal   who   had   thrown   that   rifle   in   his  bid   to <\/p>\n
escape from the spot where the bloody drama was performed, resulting in <\/p>\n
death   of   three   persons.     Even   earlier   to   this   discovery,   Abu   Shamal   @ <\/p>\n
Faisal   was   eliminated   in   encounter   and   he   was   found   with   substantial <\/p>\n
quantity   of   firearm   and   ammunition.     We,   therefore,   see   no   reason   to <\/p>\n
accept the defence contention that this discovery was a fake discovery.  <\/p>\n
71.     Insofar   as   third   discovery   was   concerned,   it   was   of   the   hand <\/p>\n
grenades,   which   the   appellant   discovered   on   1.1.2001.     The   learned <\/p>\n
counsel did not even attempt to say that there was anything unnatural with <\/p>\n
this recovery except that the appellant was all through in the custody and <\/p>\n
could   have   been   treated   roughly   for   effecting   this   discovery   of   the <\/p>\n
grenades.    There is nothing to support this version.   Thus,  the discovery <\/p>\n
statements   attributed   to   the   appellant   and   the   material   discovered   in <\/p>\n
pursuance   thereof   would   fully   show   the   truth   that   the   appellant   was <\/p>\n
involved in the whole affair.   The discovery of hand grenades behind the <\/p>\n
computer centre near Jamia Millia Islamia University was very significant. <\/p>\n
So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the <\/p>\n
Hawala   dealer,   as   also   the   documents   discovered   therefrom,   show   the <\/p>\n
                                                11<\/span><\/p>\n
involvement   of   the   appellant   in   the   whole   affair.     In   this   behalf,   we   fully <\/p>\n
endorse   the   finding   of   the   High   Court.     About   these   discoveries,   one <\/p>\n
another   complaint   by   the   learned   defence   counsel   was   that   no   public <\/p>\n
witnesses were associated.   In fact, there is ample evidence on record to <\/p>\n
suggest   that   though   the   investigating   agency   made   the   effort,   nobody <\/p>\n
came   forward.     This   was   all   the   more   so,   particularly   in   case   of   the <\/p>\n
recovery  of  pistol   from  the  appellant   as  also  the  discoveries  vide  Exhibit <\/p>\n
PW-148\/E.\n<\/p>\n<\/p>\n
72.     We have seen the evidence as also the so-called explanations given <\/p>\n
by the appellant in his statement under Section 313 Cr.P.C.  We are of the <\/p>\n
clear opinion that the detailed statement which he gave at the end of the <\/p>\n
examination was a myth and remained totally unsubstantiated.   We have <\/p>\n
also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and <\/p>\n
we are of the clear opinion that even that evidence has no legs to stand. <\/p>\n
Ms.   Qamar   Farukhi   (DW-1)   spoke   about   the   marriage   of   her   daughter <\/p>\n
Rehmana Yusuf Farukhi to the appellant.  She deposed that the appellant <\/p>\n
had expressed his desire to marry Rehmana after reading the matrimonial <\/p>\n
advertisement.     She   asserted   that   her   relatives   contributed   for   the <\/p>\n
marriage and she had continued giving her money to Rehmana.  There is <\/p>\n
nothing much in her cross-examination either.   She admitted that moneys <\/p>\n
were paid into the account of Rehmana.   She admitted that it was told to <\/p>\n
                                             12<\/span><\/p>\n
the appellant that Rehmana was  suffering from Spinal Cord problem and <\/p>\n
was not fit for consummation of marriage.  It is really strange that inspite of <\/p>\n
this, the appellant should have got married to Rehmana.   Very strangely, <\/p>\n
the  lady completely denied that she  even knew that  the appellant  was   a <\/p>\n
resident of Pakistan.  Much importance, therefore, cannot be given to this <\/p>\n
defence   witness.     The   High   Court   has   held   proved   the   following <\/p>\n
circumstances against the appellant:-\n<\/p>\n<\/p>\n
      “(a)     On   the   night   of   22-12-2000   there   was   an   incident   of   firing <\/p>\n
               inside   the   Lal   Quila   when   some   intruders   had   managed   to <\/p>\n
               enter   that   area   of   Lal   Quila   where   the   Unit   of   7   Rajputana <\/p>\n
               Rifles of Indian Army was stationed.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      (b)      In   that   incident   of   shooting   the   intruders   had   fired <\/p>\n
               indiscriminately   from   their   AK-56   rifles   as   a   result   of   which <\/p>\n
               three   army   jawans   received   fire-arm   injuries   and   lost   their <\/p>\n
               lives.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      (c)      The death of three army jawans was homicidal. \n\n\n      (d)      Immediately   after   the   quick   reaction   team   of   the   army   fired \n\n<\/pre>\n
               back   upon   the   intruders   as   a   result   of   which   the   intruders <\/p>\n
               escaped from the place of occurrence by scaling over the rear <\/p>\n
               side   boundary   wall   of   Lal   Quila   towards   the   Ring   Road   side <\/p>\n
               and   when   the   place   of   occurrence   was   searched   by   the <\/p>\n
               armymen   many   assault   rifle   fired   cartridge   cases   were <\/p>\n
               recovered from the place of occurrence.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      (e)      Immediately   after   the   intruders   who   had   resorted   to   firing <\/p>\n
               inside   the   army   camp   had   escaped   from   there   calls   were <\/p>\n
               made   by   someone   on   the   telephones   of   two   BBC <\/p>\n
               Correspondents one of whom was stationed at Sri Nagar and <\/p>\n
               the   other   one   was   stationed   at   Delhi   office   of   BBC   and   the <\/p>\n
               caller   had   informed   them   about   the   shooting   incident   inside <\/p>\n
               the   Lal   Quila   and   had   also   claimed   the   responsibility   of   that <\/p>\n
               incident  and that that was  the job of Lashkar-E-Toiba,  which <\/p>\n
                                      12<\/span><\/p>\n
        the   prosecution   claims   to   be   a   banned   militant   organization <\/p>\n
        indulging in acts of terrorism in our country. <\/p>\n<\/blockquote>\n
(f)     On the morning of 23-12-2000 one AK-56 rifle was recovered <\/p>\n
        from a place near Vijay Ghat on the Ring Road behind the Lal <\/p>\n
        Quila.\n<\/p>\n<\/p>\n
(g)     On 23-12-2000 when the policemen conducted search around <\/p>\n
        the   Lal   Quila   in   the   hope   of   getting   some   clue   about   the <\/p>\n
        culprits   they   found   one   piece   of   paper   lying   outside   the   Lal <\/p>\n
        Quila   near   the   rear   side   boundary   wall   towards   Ring   Road <\/p>\n
        side   and   on   that   piece   of   paper   one   mobile   phone   number <\/p>\n
        9811278510 was written.\n<\/p>\n<\/p>\n
(h)     The mobile phone number 9811278510 was used for making <\/p>\n
        calls   to   the   two   BBC   correspondents(PWs   39   and   41) <\/p>\n
        immediately   after   the   shooting   incident   inside   Lal   Quila   and <\/p>\n
        the  caller had claimed  the responsibility for that incident  and <\/p>\n
        had informed them that the incident was the job of Lashkar-e-<\/p>\n
        Toiba.\n<\/p>\n<\/p>\n
(i)     The aforesaid mobile phone number found written on a piece <\/p>\n
        of paper lying behind the Lal Quila had led the police up to flat <\/p>\n
        no. 308-A Ghazipur, New Delhi where accused Mohd. Arif @ <\/p>\n
        Ashfaq was found to be living and when on being suspected of <\/p>\n
        being   involved   in  the   shooting   incident  he   was  apprehended <\/p>\n
        on   the   night   of   25\/26-12-2000   one   pistol   and   some   live <\/p>\n
        cartridges   were   recovered   from   his   possession   for   which   he <\/p>\n
        did not have any license.\n<\/p>\n<\/p>\n
(j)     At the time of his arrest in case FIR No. 688\/2000 one mobile <\/p>\n
        phone   having   the   number   9811278510   was   recovered   from <\/p>\n
        his   possession   and   it   was   the   same   mobile   number   from <\/p>\n
        which calls had been made to the two BBC correspondents for <\/p>\n
        informing them about the incident and Lashkar-e-Toiba being <\/p>\n
        responsible for that incident.\n<\/p>\n<\/p>\n
(k)     Immediately   after   his   apprehension   accused   Mohd.   Arif   @ <\/p>\n
        Ashfaq   admitted   his   involvement   in   the   shooting   incident <\/p>\n
        inside   Lal   Quila   and   also   disclosed   to   the   police   about   his <\/p>\n
        another  hide-out at G-73, Batla House, Muradi Road,  Okhla, <\/p>\n
        New Delhi and pursuant to his disclosure the police had gone <\/p>\n
        to that hide-out where the occupant of that house started firing <\/p>\n
                                     12<\/span><\/p>\n
        upon the police team and when the police team returned the <\/p>\n
        firing   that   person,   who   was   later   on   identified   by   accused <\/p>\n
        Mohd.  Arif   @  Ashfaq   to  be  one   Abu  Shamal  @   Faizal,  died <\/p>\n
        because   of   the   firing   resorted   to   by   the   policemen.   From <\/p>\n
        house   no.   G-73,   where   the   encounter   had   taken   place,   one <\/p>\n
        AK-56 rifle and some live cartridges and hand grenades were <\/p>\n
        recovered.\n<\/p>\n<\/p>\n
(l)     Accused Mohd. Arif @ Ashfaq while in police custody had also <\/p>\n
        disclosed to the police that one assault rifle had been thrown <\/p>\n
        near   Vijay   Ghat   after   the   incident.   The   police   had   already <\/p>\n
        recovered one AK-56 rifle from Vijay Ghat on the morning of <\/p>\n
        23-12-2000.   Accused   Mohd.   Arif   @   Ashfaq   had   thus   the <\/p>\n
        knowledge   about   the   availability   of   that   AK-56   rifle   at   Vijay <\/p>\n
        Ghat.\n<\/p>\n<\/p>\n
(m)     Accused   Mohd.   Arif   @   Ashfaq   had   also   got   recovered   one <\/p>\n
        AK-56 rifle and some ammunition from behind the Lal Quila on <\/p>\n
        26-12-2000.\n<\/p>\n<\/p>\n
(n)     Accused  Mohd.   Arif   @   Ashfaq   had   also  got  recovered  three <\/p>\n
        hand grenades from some place behind his computer centre <\/p>\n
        in   Okhla   on   1-1-2001   pursuant   to   his   another   disclosure <\/p>\n
        statement made by him while in police custody.\n<\/p>\n<\/p>\n
(o)     When   the   assault   rifle   fired   cartridge   cases   which   were <\/p>\n
        recovered from the place of occurrence by the armymen after <\/p>\n
        the  intruders had  escaped from there were  examined by the <\/p>\n
        ballistic expert along with the AK-56 rifle which was recovered <\/p>\n
        at the instance of accused Mohd. Arif @ Ashfaq from behind <\/p>\n
        the   Lal   Quila   on   26-12-2000   and   the   AK-56   rifle   which   was <\/p>\n
        recovered from Vijay Ghat on 23-12-2000 it was found by the <\/p>\n
        ballistic   expert(PW-202)   that   some   of   the   assault   rifle   fired <\/p>\n
        cartridge   cases   had   been   fired   from   the   rifle   recovered   from <\/p>\n
        behind Red Fort and some had been fired from the other rifle <\/p>\n
        which was recovered from Vijay Ghat.\n<\/p>\n<\/p>\n
(p)     Appellant   –   accused   Mohd.   Arif   @   Ashfaq   was   a   Pakistan <\/p>\n
        national and had entered the Indian territory illegally.<\/p>\n
(q)     After making illegal entry into India appellant – accused Mohd. <\/p>\n
        Arif @ Ashfaq had been representing to the people coming in <\/p>\n
        his contact during his stays at different places that he was  a <\/p>\n
                                              12<\/span><\/p>\n
                resident   of   Jammu   and   was   doing   the   business   of   shawls <\/p>\n
                while,   in   fact,   he   had   no   such   business   and   he   had   been <\/p>\n
                collecting money through hawala channels.\n<\/p>\n<\/p>\n
        (r)     Accused   Mohd.   Arif   @   Ashfaq   had   obtained   a   forged   ration <\/p>\n
                card   Ex.   PW-164\/A   wherein   not   only   his   house   number <\/p>\n
                mentioned was not his correct address but even the name of <\/p>\n
                his   wife   shown   therein   was   not   Rehmana   Yusuf   Faukhi.   He <\/p>\n
                had   also   forged   his   learner   driving   license   Ex.   PW-13\/C   as <\/p>\n
                well   as   one   document   Ex.   PW-13\/E   purporting   to   be   a <\/p>\n
                photocopy   of   another   ration   card   in   his   name   with   his <\/p>\n
                residential   address   of   Ghaziabad   where   he   admittedly   never <\/p>\n
                resided and he submitted that document with a the Ghaziabad <\/p>\n
                Transport Authority for obtaining permanent driving license. In <\/p>\n
                the   learner  driving   license   also  he  had   shown  his residential <\/p>\n
                addresses where he had never actually resided. All that he did <\/p>\n
                was   to   conceal   his   real   identity   as   a   militant   having   entered <\/p>\n
                the Indian territory with the object of spreading terror with the <\/p>\n
                help   of   his   other   associate   militants   whom   unfortunately   the <\/p>\n
                police   could   not   apprehend   and   some   expired   before   they <\/p>\n
                could be tried.”\n<\/p>\n<\/p>\n
73.     In   addition   to   these   circumstances,   there   is   another   circumstance <\/p>\n
that a message was  intercepted by the BSF while Exhibit PW 162\/A and <\/p>\n
proved   by   PW-162   Inspector   J.S.   Chauhan   dated   26.12.2000   wherein <\/p>\n
there was a specific reference to the accused.   Still another circumstance <\/p>\n
would be that the accused had no ostensible means of livelihood and yet <\/p>\n
he   deposited   Rs.29,50,000\/-   in   three   accounts,   namely,   Standard <\/p>\n
Chartered   Grindlays   Bank,   Connaught   Place   (known   as   ANZ   Grindlays <\/p>\n
Bank)   bearing   account   No.32263962   of   M\/s.   Nazir   &   Sons,   Standard <\/p>\n
Chartered   Grindlays   Bank   bearing   account   No.28552609   of   Bilal   Ahmad <\/p>\n
Kawa   and   Standard   Chartered   Bank   bearing   account   No.32181669   of <\/p>\n
Farooq Ahmed Qasid and also deposited some amounts in the account of <\/p>\n
                                              12<\/span><\/p>\n
Rehmana Yusuf Faruqi and he had no explanation of these huge amounts, <\/p>\n
their source or their distribution.  Lastly, the appellant gave a fanciful and a <\/p>\n
completely   false   explanation   about   his   entering   in   India   and   his   being   a <\/p>\n
member of RAW and thereby, his having interacted with Nain Singh (PW-<\/p>\n
20).\n<\/p>\n<\/p>\n
74.     We   are   in   complete   agreement   with   the   findings   regarding   the <\/p>\n
incriminating circumstances as recorded by the High Court.   On the basis <\/p>\n
of   the   aforementioned   circumstances,   the   High   Court   came   to   the <\/p>\n
conclusion that the appellant was responsible for the incident of shooting <\/p>\n
inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted <\/p>\n
in the death of three soldiers of Army.   It has also been held by the High <\/p>\n
Court   that   this   was   a   result   of   well   planned   conspiracy   between   the <\/p>\n
appellant   and   some   other   militants   including   deceased   Abu   Shamal   @ <\/p>\n
faizal who  was killed in an encounter with the police at House No. G-73, <\/p>\n
Batla House, Muradi Road,  Okhla,  New Delhi.   The  High Court has also <\/p>\n
deduced that it was  at the instance of the appellant that the police could <\/p>\n
reach that spot.  The High Court has further come to the conclusion that it <\/p>\n
was in a systematic manner that the appellant came to India illegally and <\/p>\n
collected   highly   sophisticated   arms   and   ammunition   meant   for   mass <\/p>\n
destruction.   The High Court further held that he chose to select the Red <\/p>\n
Fort   for   an   assault   alongwith   his   other   associates,   the   Red   Fort   being   a <\/p>\n
                                            12<\/span><\/p>\n
place of national importance for India.  The High Court has also recorded a <\/p>\n
finding that the chosen attack was on the Army Camp which was stationed <\/p>\n
there   to   protect   this   monument   of   national   importance.     The   High   Court <\/p>\n
has,   therefore,   deduced   that   it   was   an   act   of   waging   war   against   the <\/p>\n
Government of India.  It is further held that the associates, with whom the <\/p>\n
appellant   had   entered   into   conspiracy,   had   attacked   the   Army   Camp, <\/p>\n
which   suggests   that   there   was   a   conspiracy   to   wage   war   against   the <\/p>\n
Government   of   India,   particularly,   because   in   that   attack,   sophisticated <\/p>\n
arms like AK-47 and AK-56 rifles and hand grenades were used.  The High <\/p>\n
Court also took note that this aspect regarding waging war was not even <\/p>\n
argued by the learned counsel appearing for defence.   It is on this basis <\/p>\n
that   the   appellant   was   held   guilty   for   the   offences   punishable   under <\/p>\n
Sections   120-B,   121-A,   121,   IPC,   Section   120-B   read   with   Section   302, <\/p>\n
IPC and Sections 468\/471\/474, IPC and also the offences under Sections <\/p>\n
186\/353\/120-B, IPC.  He was also held guilty for the offence under Section <\/p>\n
14   of   the   Foreigners   Act,   since   it   was   proved   that   the   appellant,   a <\/p>\n
foreigner, had entered the territory of India without obtaining the necessary <\/p>\n
permissions and clearance.  Similarly, the appellant was also held guilty for <\/p>\n
the offences under the Arms Act as well as the Explosive Substances Act <\/p>\n
on account of his being found with a pistol and live cartridges.<\/p>\n
                                               12<\/span><\/p>\n
75.     The   law   on   the   circumstantial   evidence   is,   by   now,   settled.     In <\/p>\n
Sharad   Birdhichand   Sarda   Vs.   State   of   Maharashtra   [1984   (4)   SCC  <\/p>\n
116],   this   Court   drew   out   the   following   test   for   relying   upon   the <\/p>\n
circumstantial evidence:-\n<\/p>\n<\/p>\n
        “(1)     The circumstances from which the conclusion of guilt is to be <\/p>\n
                 drawn should be fully established.\n<\/p><\/blockquote>\n
\n        (2)      The   facts   so   established   should   be   consistent   only   with   the <\/p>\n
                 hypothesis   of   the   guilt   of   the   accused,   that   is   to   say,   they <\/p>\n
                 should not be explainable on any other hypothesis except that <\/p>\n
                 the accused is guilty.\n<\/p><\/blockquote>\n
\n        (3)      The   circumstances   should   be   of   a   conclusive   nature   and <\/p>\n
                 tendency.\n<\/p><\/blockquote>\n
\n        (4)      They   should   exclude   every   possible   hypothesis   except   the <\/p>\n
                 one to be proved, and<\/p>\n
        (5)      There   must   be   a   chain   of   evidence   so   complete   as   not   to <\/p>\n
                 leave   any   reasonable   ground   for   the   conclusion   consistent <\/p>\n
                 with the innocence of the accused and must show that in all <\/p>\n
                 human   probability   the   act   must   have   been   done   by   the <\/p>\n
                 accused.”<\/p><\/blockquote>\n
        The principle of this judgment was thereafter followed in number of <\/p>\n
decisions,   they   being  Tanviben   Pankaj   Kumar   Divetia   Vs.   State   of  <\/p>\n
Gujarat [1997 (7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @  <\/p>\n
Afsan   Guru   [2005   (11)   SCC   600],   Vikram   Singh   &   Ors.   Vs.   State   of  <\/p>\n
Punjab   [2010   (3)   SCC   56],   Aftab   Ahmad   Anasari   Vs.   State   of  <\/p>\n
Uttaranchal   [2010   (2)   SCC   583]  etc.     It   is   to   be   noted   that   in   the   last <\/p>\n
                                             12<\/span><\/p>\n
mentioned   decision   of  Aftab   Ahmad   Anasari   Vs.   State   of   Uttaranchal  <\/p>\n
(cited supra), the observation made is to the following effect:-<\/p>\n
       “In   cases   where   evidence   is   of   a   circumstantial   nature,   the <\/p>\n
       circumstances   from   which   the   conclusion   of   guilt   is   to   be   drawn <\/p>\n
       should, in the first instance, be fully established. Each fact must be <\/p>\n
       proved individually and only thereafter the Court should consider the <\/p>\n
       total   cumulative   effect   of   all   the   proved   facts,   each   one   of   which <\/p>\n
       reinforces the conclusion of the guilt. If the combined effect of all the <\/p>\n
       facts   taken   together   is   conclusive   in   establishing   the   guilt   of   the <\/p>\n
       accused, the conviction would be justified even though it may be that <\/p>\n
       one or more of these facts, by itself\/themselves, is\/are not decisive. <\/p>\n
       The   circumstances   proved   should   be   such   as   to   exclude   every <\/p>\n
       hypothesis   except   the   one   sought   to   be   proved.  But   this   does   not <\/p>\n
       mean   that   before   the   prosecution   case   succeeds   in   a   case   of <\/p>\n
       circumstantial   evidence   alone,   it   must   exclude   each   and   every <\/p>\n
       hypothesis  suggested by the accused, howsoever  extravagant  and <\/p>\n
       fanciful   it   might   be.  There   must   be   a   chain   of   evidence   so   far <\/p>\n
       complete   as   not   to   leave   any   reasonable   ground   for   conclusion <\/p>\n
       consistent with the innocence of the accused and it must be such as <\/p>\n
       to   show   that   within   all   human   probability,   the   act   must   have   been <\/p>\n
       done   by   the   accused.     Where   the   various   links   in   a   chain   are   in <\/p>\n
       themselves complete, then a false plea or a false defence may be <\/p>\n
       called   into   aid   only   to   lend   assurance   to   the   Court………..” <\/p>\n
       (Emphasis supplied).<\/p><\/blockquote>\n
       The   Court   further   went   on   to   hold   that   in   applying   this   principle, <\/p>\n
distinction must be made between the facts called primary or basic, on the <\/p>\n
one hand, and the inference of facts to be drawn from them, on the other. <\/p>\n
The Court further mentioned that:-\n<\/p>\n<\/p>\n
       “in drawing these inferences or presumptions, the Court must have <\/p>\n
       regard   to   the   common   course   of   natural   events,   and   to   human <\/p>\n
       conduct and their relations to the facts of the particular case.”<\/p><\/blockquote>\n
                                             12<\/span><\/p>\n
       To the similar effect are the observations made in Vikram Singh &  <\/p>\n
Ors. Vs. State of Punjab (cited supra).\n<\/p>\n<\/p>\n
76.    There   can   be   no   dispute   that   in   a   case   entirely   dependent   on   the <\/p>\n
circumstantial   evidence,   the   responsibility   of   the   prosecution   is   more   as <\/p>\n
compared to the case where the ocular testimony or the direct evidence, <\/p>\n
as   the   case   may   be,   is   available.     The   Court,   before   relying   on   the <\/p>\n
circumstantial evidence and convicting the accused thereby has to satisfy <\/p>\n
itself   completely   that   there   is   no   other   inference   consistent   with   the <\/p>\n
innocence of the accused possible nor is there any plausible explanation. <\/p>\n
The   Court   must,   therefore,   make   up   its   mind   about  the   inferences   to   be <\/p>\n
drawn   from   each   proved   circumstance   and   should   also   consider   the <\/p>\n
cumulative   effect   thereof.     In   doing   this,   the   Court   has   to   satisfy   its <\/p>\n
conscience   that   it   is   not   proceeding   on   the   imaginary   inferences   or   its <\/p>\n
prejudices  and  that  there could be no other inference  possible  excepting <\/p>\n
the   guilt   on   the   part   of   the   accused.     We   respectfully   agree   with   the <\/p>\n
principles   drawn   in   the   above   mentioned   cases   and   hold   that   the <\/p>\n
prosecution   was   successful   in   establishing   the   above   mentioned <\/p>\n
circumstances against the appellant, individually, as well as, cumulatively. <\/p>\n
There   indeed   cannot   be   a   universal   test   applicable   commonly   to   all   the <\/p>\n
situations for reaching an inference that the accused is guilty on the basis <\/p>\n
of   the   proved   circumstances   against   him   nor   could   there   be   any <\/p>\n
                                               12<\/span><\/p>\n
quantitative   test   made   applicable.     At   times,   there   may   be   only   a   few <\/p>\n
circumstances available to reach a conclusion of the guilt on the part of the <\/p>\n
accused  and  at times,  even  if  there  are  large numbers  of circumstances <\/p>\n
proved, they may not be enough to reach the conclusion of guilt on the part <\/p>\n
of   the   accused.     It   is   the   quality   of   each   individual   circumstance   that   is <\/p>\n
material and that would  essentially depend upon the  quality of evidence. <\/p>\n
Fanciful   imagination   in   such   cases   has   no   place.     Clear   and   irrefutable <\/p>\n
logic would be an essential factor in arriving at the verdict of guilt on the <\/p>\n
basis   of   the   proved   circumstances.     In   our   opinion,   the   present   case   is <\/p>\n
such, as would pass all the tests so far devised by this Court in the realm <\/p>\n
of criminal jurisprudence.\n<\/p>\n<\/p>\n
77.     However, we must, at this stage, take note of the argument raised by <\/p>\n
the   learned   counsel   for   the   defence   that   the   appellant   has   suffered   a <\/p>\n
prejudice   on   account   of   his   being   a   Pakistani   national.     The   learned <\/p>\n
counsel   contended   that   on   account   of   his   foreign   nationality   and   in <\/p>\n
particular that of Pakistan, the whole  investigating agency as well  as the <\/p>\n
Courts   below   have   viewed   his   role   with   jaundiced   eyes.     The   learned <\/p>\n
counsel pointed out that all the other accused who were acquitted did not <\/p>\n
have   foreign   nationality.     We  must   immediately   note   that   the   criticism   is <\/p>\n
entirely   misplaced,   both   against   the   investigating   agency  and   the   Courts <\/p>\n
below.     The   investigation   in   this   case   was   both   scientific   and   fair <\/p>\n
                                              13<\/span><\/p>\n
investigation.   This was one of the most difficult cases to be investigated <\/p>\n
as   there   could   have   been   no   clue   available   to   the   investigating   agency. <\/p>\n
The small thread which became available to the investigating agency was <\/p>\n
the chit found alongwith some Indian currency at the back of the Red Fort <\/p>\n
wall in a polythene packet.  We must pay compliments to the Investigating <\/p>\n
Officer  S.K.   Sand   (PW-230)   as   also   to   all   the   other   associated   with   the <\/p>\n
investigation for being objective and methodical in their approach.  It has to <\/p>\n
be borne in mind that not a single incidence of ill-treatment to the appellant <\/p>\n
was  reported or proved.   Again, the timely recording of the D.D. Entries, <\/p>\n
scientific investigation using the computer, the depth of investigation and <\/p>\n
the   ability   of   the   investigating   agency   to   reach   the   very   basis   of   each <\/p>\n
aspect  lend  complete  credibility to  the  fairness of the  investigation.    We, <\/p>\n
therefore,   reject   this   argument   insofar   as   the   investigating   agency   is <\/p>\n
concerned.  Similar is the role played by the trial and the appellate Courts. <\/p>\n
It could not be distantly imagined that the Courts below bore any prejudice. <\/p>\n
The   trial   held   before   the   trial   Judge   was   the   epitome   of   fairness,   where <\/p>\n
every opportunity was given to the accused persons and more particularly, <\/p>\n
to   the   present   appellant.   Similarly,   the   High   Court   was   also   very   fair   in <\/p>\n
giving   all   the   possible   latitude,   in   giving   patient   hearing   to   this   accused <\/p>\n
(appellant).    The records of the trial and the appellate Courts truly justify <\/p>\n
these   inferences.     We,   therefore,   reject   this   argument   of   the   learned <\/p>\n
defence counsel.\n<\/p>\n
\n                                             13<\/span><\/p>\n
78.    It   was   then   argued   that   there   could   be   no   conviction   for   the <\/p>\n
conspiracy   in   the   absence   of   conviction   of   any   other   accused   for   that <\/p>\n
purpose.  The argument is per se incorrect.  It is true that out of the original <\/p>\n
22   accused   persons,   ultimately   upto   this   level,   it   is   only   the   present <\/p>\n
appellant   who   stands   convicted.     We   must,   however,   point   out   that   as <\/p>\n
many as 8 accused persons against whom the investigating agency filed a <\/p>\n
chargesheet   are   found   to   be   absconding.     The   Investigating   Officer   had <\/p>\n
collected ample material during the investigation against these 8 accused <\/p>\n
persons   who   were   (1)   Sabir   @   Sabarulla   @   Afgani   (A-12),   Sher   Zaman <\/p>\n
Afgani   S\/o   Mohd.   Raza   (A-13),   Abu   Haider   (A-14),   Abu   Shukher   (A-15), <\/p>\n
Abu   Saad   (A-16),   Zahur   Ahmad   Qasid   S\/o   Gulam   Mohd.   Qasid   (A-17), <\/p>\n
Bilal Ahmad Kawa S\/o Ali Mohd. Kawa (A-18) and Athruddin @ Athar Ali <\/p>\n
@   Salim   @   Abdulla   S\/o   Ahmuddin   (A-19).     Besides   these   absconding <\/p>\n
accused persons, 3 others were Abu Bilal (A-20), Abu Shamal (A-21) and <\/p>\n
Abu Suffian (A-22).   All these three persons were already dead when the <\/p>\n
chargesheet   was   filed   against   them.     The   charge   of   conspiracy   was <\/p>\n
against all the accused persons.   The conspiracy also included the dead <\/p>\n
accused Abu Shamal who was found to be hiding and who was later killed <\/p>\n
in exchange of fire with the police.  The whereabouts of Abu Shamal were <\/p>\n
known   only   due   to   the   discovery   statement   by   the   appellant,   in   which   a <\/p>\n
very clear role was attributed to Abu Shamal, who was also a part of the <\/p>\n
team having entered the Red Fort and having taken part in the firing and <\/p>\n
                                               13<\/span><\/p>\n
killing   of  three   soldiers.     It  has   also   come   in  the   evidence  that  the  other <\/p>\n
accused who  was  absconding in the present case, namely,  Abu Bilal (A-<\/p>\n
20),   was   killed   in   exchange   of   fire   with   police   in   2002   near   Humayun’s <\/p>\n
Tomb.  It is to be remembered that the negative of the photograph of Abu <\/p>\n
Bilal   (A-20)   was   seized   at   the   time   of   arrest   of   the   appellant,   from   his <\/p>\n
wallet.    Indeed, the act of firing at the Army was  not by a single person. <\/p>\n
The learned Solicitor General, therefore, rightly submitted that the case of <\/p>\n
the prosecution that there was a conspiracy to attack the Red Fort and kill <\/p>\n
innocent persons, was not affected even if the other accused persons who <\/p>\n
were alleged to have facilitated and helped the appellant, were acquitted. <\/p>\n
The   question   of   a   single   person   being   convicted   for   an   offence   of <\/p>\n
conspiracy   was   considered   in  Bimbadhar   Pradhan   Vs.   The   State   of  <\/p>\n
Orissa [AIR 1956 SC 469].  Paragraph 14 thereof is relevant for us, which <\/p>\n
is as follows:-\n<\/p>\n<\/p>\n
        “14.    Another contention raised on behalf of the appellant was that <\/p>\n
                the other accused having been acquitted by the trial court, the <\/p>\n
                appellant   should   not   have   been   convicted   because   the <\/p>\n
                evidence against all of them was the same. There would have <\/p>\n
                been a great deal of force in this argument, not as a question <\/p>\n
                of   principle  but   as  a   matter  of   prudence  if  we   were  satisfied <\/p>\n
                that   the   acquittal   of   the   other   four   accused   persons   was <\/p>\n
                entirely   correct.   In   this   connection   the   observations   of   this <\/p>\n
                Court in the case of Dalip Singh  v. State of Punjab<\/a> [1954] (1) <\/p>\n
                SCR 145, and of the Federal Court in Kapildeo Singh v. The <\/p>\n
                King<\/a>   [1949]   F.C.R.   834,   are   relevant.   It   is   not   essential   that <\/p>\n
                more than one person should be convicted of the offence of <\/p>\n
                criminal conspiracy. It is enough if the court is in a position to <\/p>\n
                find that two or more persons were actually concerned in the <\/p>\n
                                            13<\/span><\/p>\n
              criminal   conspiracy.   If   the   courts   below   had   come   to   the <\/p>\n
              distinct   finding   that   the   evidence   led   on   behalf   of   the <\/p>\n
              prosecution was unreliable, then certainly no conviction could <\/p>\n
              have been based on such evidence and all the accused would <\/p>\n
              have   been   equally   entitled   to   acquittal.   But   that   is   not   the <\/p>\n
              position  in this case  as we read the judgments of the courts <\/p>\n
              below.”<\/p><\/blockquote>\n
       The learned Solicitor General also relied on the decision in State of  <\/p>\n
Himachal   Pradesh   Vs.   Krishna   Lal   Pradhan   [1987   (2)   SCC   17]  and <\/p>\n
cited the observations to the effect that the offence of criminal conspiracy <\/p>\n
consists in a meeting of minds of two or more persons for agreeing to do or <\/p>\n
causing to be done an illegal act by illegal means, and the performance of <\/p>\n
an act in terms thereof.  It is further observed:-\n<\/p>\n<\/p>\n
              “If pursuant to the criminal conspiracy the conspirators commit <\/p>\n
              several offences, then all of them will be liable for the offences <\/p>\n
              even   if   some   of   them   had   not   actively   participated   in   the <\/p>\n
              commission of the offences.”<\/p><\/blockquote>\n
       The learned Solicitor General further relied on the decision in State  <\/p>\n
through Superintendent of Police, CBI\/SIT Vs. Nalini & Ors. [1999 (5)  <\/p>\n
SCC   253],   wherein   in  paragraph   662,   the   following   observations   were <\/p>\n
made:-\n<\/p>\n<\/p>\n
              “In   reaching   the   stage   of   meeting   of   minds,   two   or   more <\/p>\n
              persons share information about doing an illegal act or a legal <\/p>\n
              act by illegal means. This is the first stage where each is said <\/p>\n
              to have knowledge of a plan for committing an illegal act or a <\/p>\n
              legal   act   by   illegal   means.   Among   those   sharing   the <\/p>\n
              information   some   or   all   may   performance   intention   to   do   an <\/p>\n
              illegal act or a legal act by illegal means. Those who do form <\/p>\n
              the requisite intention would be parties to the agreement and <\/p>\n
                                            13<\/span><\/p>\n
             would be conspirators but those who drop out cannot be roped <\/p>\n
             in   as   collaborators   on   the   basis   of   mere   knowledge   unless <\/p>\n
             they   commit   acts   or   omissions   from   which   a   guilty   common <\/p>\n
             intention   can   be   inferred.   It   is   not   necessary   that   all   the <\/p>\n
             conspirators should participate from inception to the end of the <\/p>\n
             conspiracy; some may join the conspiracy after the time when <\/p>\n
             such   intention   was   first   entertained   by   any   one   of   them   and <\/p>\n
             some others may quit from the conspiracy. All of them cannot <\/p>\n
             but   be   treated   as   conspirators.   Where   in   pursuance   of   the <\/p>\n
             agreement   the   conspirators   commit   offences   individually   or <\/p>\n
             adopt illegal means to do a legal act which has a nexus to the <\/p>\n
             object of conspiracy, all of them will be liable for such offences <\/p>\n
             even   if   some   of   them   have   not   actively   participated   in   the <\/p>\n
             commission of those offences.” <\/p><\/blockquote>\n
      Again   in  Firozuddin   Basheeruddin   &   Ors.   Vs.   State   of   Kerala  <\/p>\n
[2001 (7) SCC  596], while  stating  the principles of conspiracy, the Court <\/p>\n
observed as follows:-\n<\/p>\n<\/p>\n
             “Conspiracy is not only a substantive crime. It also serves as a <\/p>\n
             basis for holding one person liable for the crimes of others in <\/p>\n
             cases   where   application   of   the   usual   doctrines   of   complicity <\/p>\n
             would not render that person liable. Thus, one who enters into <\/p>\n
             a   conspiratorial   relationship   is   liable   for   every   reasonably <\/p>\n
             foreseeable   crime   committed   by   every   other   member   of   the <\/p>\n
             conspiracy in furtherance of its objectives, whether or not he <\/p>\n
             knew of the crimes or aided in their commission. The rationale <\/p>\n
             is that criminal acts done in furtherance of a conspiracy may <\/p>\n
             be   sufficiently   dependent   upon   the   encouragement   and <\/p>\n
             support   of   the   group   as   a   whole   to   warrant   treating   each <\/p>\n
             member as a casual agent to each act. Under this view, which <\/p>\n
             of   the   conspirators   committed   the   substantive   offence   would <\/p>\n
             be less significant in determining the defendant’s liability than <\/p>\n
             the   fact   that   the   crime   was   performed   as   a   part   of   a   larger <\/p>\n
             division of labor to which the accused had also contributed his <\/p>\n
             efforts.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                     Regarding   admissibility   of   evidence,   loosened <\/p>\n
             standards   prevail   in   a   conspiracy   trial.   Contrary   to   the   usual <\/p>\n
             rule,   in   conspiracy   prosecutions   a   declaration   by   one <\/p>\n
                                            13<\/span><\/p>\n
              conspirator, made in furtherance of a conspiracy and during its <\/p>\n
              pendency, is admissible against each co-conspirator. Despite <\/p>\n
              the   unreliability   of   hearsay   evidence,   it   is   admissible   in <\/p>\n
              conspiracy   prosecutions.   Explaining   this   rule,   Judge   Hand <\/p>\n
              said:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                       “Such declarations are admitted upon no doctrine of the <\/p>\n
                       law   of   evidence,   but   of   the   substantive   law   of   crime. <\/p>\n
                       When men enter into an agreement for an unlawful end, <\/p>\n
                       they become ad hoc agents for one another, and have <\/p>\n
                       made ‘a partnership in crime’. what one does pursuant <\/p>\n
                       to   their   common   purpose,   all   do,   and   as   declarations <\/p>\n
                       may be such acts, they are competent against all (Van <\/p>\n
                       Riper v. United States 13 F.2d 961, 967, (2d Cir. 1926).”<\/p><\/blockquote>\n
\n<\/blockquote>\n
                       Thus   conspirators   are   liable   on   an   agency   theory   for <\/p>\n
              statements   of   co-conspirators,   just   as   they   are   for   the   overt <\/p>\n
              acts and crimes committed by their confreres.”<\/p><\/blockquote>\n
       Our attention was also invited to the observations made in Yashpal  <\/p>\n
Mittal   Vs.   State   of   Punjab   [1977   (4)   SCC   540]  at   page   543.     The <\/p>\n
observations are to the following effect:-\n<\/p>\n<\/p>\n
              “The   offence   of   criminal   conspiracy   under   Section  120A  is   a <\/p>\n
              distinct offence introduced for the first time in 1913 in Chapter <\/p>\n
              VA of the Penal Code. The very agreement, concert or league <\/p>\n
              is the ingredient of the offence. It is not necessary that all the <\/p>\n
              conspirators   must   know   each   and   every   detail   of   the <\/p>\n
              conspiracy   as   long   as   they   are   co-participators   in   the   main <\/p>\n
              object of the conspiracy. There may be so many devices and <\/p>\n
              techniques   adopted   to   achieve   the   common   goal   of   the <\/p>\n
              conspiracy and there may be division of performances in the <\/p>\n
              chain   of   actions   with   one   object   to   achieve   the   real   end   of <\/p>\n
              which   every   collaborator   must   be   aware   and   in   which   each <\/p>\n
              one of them must be interested. There must be unity of object <\/p>\n
              or   purpose   but   there   may   be   plurality   of   means   sometimes <\/p>\n
              even  unknown  to  one  another,  amongst  the conspiratOrs.  In <\/p>\n
              achieving   the   goal   several   offences,   may   be   committed   by <\/p>\n
              some   of   the   conspirators   even   unknown   to   the   others.   The <\/p>\n
              only relevant factor is that all means adopted and illegal acts <\/p>\n
                              13<\/span><\/p>\n
done must be and purported to be in furtherance of the object <\/p>\n
of   the   conspiracy   even   though   there   may   be   sometimes <\/p>\n
misfire or over-shooting by some of the conspirators. Even if <\/p>\n
some steps are resorted to by one or two of the conspirators <\/p>\n
without   the   knowledge   of   the   others   it   will   not   affect   the <\/p>\n
culpability of those others when  they are associated with the <\/p>\n
object   of   the   conspiracy.   The   significance   of   criminal <\/p>\n
conspiracy   under  Section  120A  is   brought   out   pithily   by   this <\/p>\n
Court   in   Major   B.   G.   Darsay   v.   The   State   of   Bombay:   1961 <\/p>\n
CriLJ 828 . thus:\n<\/p><\/blockquote>\n
<\/blockquote>\n
        The   gist   of   the   offences   is   an   agreement  to   break   the <\/p>\n
        law. The parties to such an agreement will  be guilty of <\/p>\n
        criminal conspiracy, though the illegal act agreed to be <\/p>\n
        done has not been done. So too, it is not an ingredient <\/p>\n
        of the offence that all the parties should agree to dc a <\/p>\n
        single illegal act. It may comprise the commission of a <\/p>\n
        number   of   acts.   under   Section  43  of   the   Indian   Penal <\/p>\n
        Code, an act would be illegal if it is an offence or if it is <\/p>\n
        prohibited   by   law.   Under   the   first   charge   the   accused <\/p>\n
        are charged with have conspired to do three categories <\/p>\n
        of  illegal   acts  and  the  mere  fact  that   all of  them   could <\/p>\n
        not   be   convicted   separately   in   respect   of   each   of   the <\/p>\n
        offences   has   no   relevancy   in   considering   the   question <\/p>\n
        whether   the   ‘-   offence   of   conspiracy   has   been <\/p>\n
        committed.   They   ate   all   guilty   of   the   offence   of <\/p>\n
        conspiracy   to   do   illegal   acts,   though   for   individual <\/p>\n
        offences all of them may not be liable.<\/p><\/blockquote>\n
\n<\/blockquote>\n
        We   are   in   respectful   agreement   with   the   above <\/p>\n
observations with regard to the offence of criminal conspiracy.<\/p><\/blockquote>\n
        The   main   object   of   the   criminal   conspiracy   in   the   first <\/p>\n
charge   is   undoubtedly   cheating   by   personation.   The   other <\/p>\n
means   adopted,   inter   alia,   are   preparation   or   causing   to   be <\/p>\n
prepared spurious passports; forging or causing to be forged <\/p>\n
entries   and   endorsements   in   that   connection;   and   use   of   or <\/p>\n
causing   to   be   used   forged   passports   as   genuine   in   order   to <\/p>\n
facilitate   travel   of   persons   abroad.   The   final   object   of   the <\/p>\n
conspiracy in the first charge being the offence of cheating by <\/p>\n
personation  and we  find,  the other offence described therein <\/p>\n
are   steps,   albeit,   offences   themselves,   in   aid   of   the   ultimate <\/p>\n
crime. The charge does not connote plurality of objects of the <\/p>\n
                                           13<\/span><\/p>\n
             conspiracy. That the appellant himself is not charged with the <\/p>\n
             ultimate offence, which is the object of the criminal conspiracy, <\/p>\n
             is beside the point in a charge under Section 120B IPC as long <\/p>\n
             as   he   is   a   party   to   the   conspiracy   with   the   end   in   view.\n<\/p>\n
             Whether the charges will be ultimately established against the <\/p>\n
             accused is a completely different matter within the domain of <\/p>\n
             the trial court.”\n<\/p>\n
\n      The   learned   Solicitor   General   also   invited   our   attention   to   the <\/p>\n
decision rendered in  Ajay Agarwal Vs. Union of India & Ors. [1993 (3)  <\/p>\n
SCC 609], wherein the following observations were made in paragraphs 8 <\/p>\n
and 24:-\n<\/p>\n<\/p>\n
             “8.     ……  In Chapter VA, conspiracy was brought on statute <\/p>\n
                     by the Amendment Act, 1913 (8 of 1913). Section 120-A <\/p>\n
                     of the I.P.C. defines ‘conspiracy’ to mean that when two <\/p>\n
                     or  more persons  agree  to do,  or  cause  to be  done an <\/p>\n
                     illegal act, or an act which is not illegal by illegal means, <\/p>\n
                     such   an   agreement   is   designated   as   “criminal <\/p>\n
                     conspiracy.   No   agreement   except   an   agreement   to <\/p>\n
                     commit   an   offence   shall   amount   to   a   criminal <\/p>\n
                     conspiracy, unless some act besides the agreement is <\/p>\n
                     done   by   one   or   more   parties   to   such   agreement   in <\/p>\n
                     furtherance   thereof.   Section          120-B     of   the   I.P.C. <\/p>\n
                     prescribes punishment for criminal conspiracy. It is not <\/p>\n
                     necessary   that   each   conspirator   must   know   all   the <\/p>\n
                     details   of   the   scheme   nor   be   a   participant   at   every <\/p>\n
                     stage. It is necessary that they should agree for design <\/p>\n
                     or object of the conspiracy. Conspiracy is conceived as <\/p>\n
                     having three elements: (1) agreement (2) between  two <\/p>\n
                     or   more   persons   by   whom   the   agreement   is   effected; <\/p>\n
                     and   (3)   a   criminal   object,   which   may   be   either   the <\/p>\n
                     ultimate   aim   of   the   agreement,   or   may   constitute   the <\/p>\n
                     means, or one of the means by which that aim is to be <\/p>\n
                     accomplished.   It   is   immaterial   whether   this   is   found   in <\/p>\n
                     the   ultimate   objects.   The   common   law   definition   of <\/p>\n
                     ‘criminal conspiracy’ was stated first by Lord Denman in <\/p>\n
                     Jones’  case  (1832  B &  AD  345) that  an  indictment  for <\/p>\n
                     conspiracy must “charge a conspiracy to do an unlawful <\/p>\n
                                            13<\/span><\/p>\n
                     act by unlawful means” and was elaborated by Willies, <\/p>\n
                     J. on behalf of the Judges while referring the question to <\/p>\n
                     the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L. <\/p>\n
                     306   and   the   House   of   Lords   in   unanimous   decision <\/p>\n
                     reiterated in Quinn v. Leathem 1901 AC 495 as under:<\/p>\n<\/blockquote>\n
                             `A conspiracy consists not merely in the intention <\/p>\n
                             of   two   or   more,   but   in   the   agreement   of   two   or <\/p>\n
                             more to do an unlawful  act, or to do a lawful act <\/p>\n
                             by   unlawful   means.   So   long   as   such   a   design <\/p>\n
                             rests   in   intention   only   it   is   not   indictable.   When <\/p>\n
                             two agree to carry it into effect, the very plot is an <\/p>\n
                             act   in   itself,   and   the   act   of   each   of   the   parties, <\/p>\n
                             promise   against   promise,  actus   contra   actum, <\/p>\n
                             capable of being enforced, if lawful, punishable of <\/p>\n
                             for   a   criminal   object   or   for   the   use   of   criminal <\/p>\n
                             means. (emphasis supplied)’<\/p>\n<\/blockquote>\n<\/blockquote>\n
             24.     A conspiracy thus, is a continuing offence and continues <\/p>\n
                     to   subsist   and   committed   wherever   one   of   the <\/p>\n
                     conspirators does an act or series of acts. So long as its <\/p>\n
                     performance continues, it is a continuing offence till it is <\/p>\n
                     executed   or   rescinded   or   frustrated   by   choice   or <\/p>\n
                     necessity.   A   crime   is   complete   as   soon   as   the <\/p>\n
                     agreement is made, but it is not a thing of the moment. <\/p>\n
                     It does not end with the making of the agreement.  It will <\/p>\n
                     continue so long as there are two or more parties to it <\/p>\n
                     intending to carry into effect the design. Its continuance <\/p>\n
                     is a threat to the society against which it was aimed at <\/p>\n
                     and would be dealt with as soon as that jurisdiction can <\/p>\n
                     properly   claim   the   power   to   do   so.   The   conspiracy <\/p>\n
                     designed or agreed abroad will have the same effect as <\/p>\n
                     in   India,   when   part   of   the   acts,   pursuant   to   the <\/p>\n
                     agreement   are   agreed   to   be   finalized   or   done, <\/p>\n
                     attempted or even frustrated and vice versa.”<\/p><\/blockquote>\n
      Further   in  Nazir   Khan   &   Ors.   Vs.   State   of   Delhi   [2003   (8)   SCC  <\/p>\n
461], the Court observed as under:-\n<\/p>\n
\n                               13<\/span><\/p>\n
“16.     In  Halsbury’s   Laws   of   England   (vide   4th  Ed.   Vol.   11, <\/p>\n
         page   44,   page   58),   the   English   Law   as   to   conspiracy <\/p>\n
         has been stated thus:\n<\/p>\n<\/p>\n
                 “Conspiracy  consists   in  the  agreement   of  two  or <\/p>\n
                 more   persons   to   do   an   unlawful   act,   or   to   do   a <\/p>\n
                 lawful   act   by   unlawful   means.   It   is   an   indication <\/p>\n
                 offence at common law, the punishment for which <\/p>\n
                 is imprisonment or fine or both in the discretion of <\/p>\n
                 the Court.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                         The essence of the offence of conspiracy is <\/p>\n
                 the   fact   of   combination   by   agreement.   The <\/p>\n
                 agreement may be express or implied, or in part <\/p>\n
                 express   and   in   part   implied.   The   conspiracy <\/p>\n
                 arises   and   the   offence   is   committed   as   soon   as <\/p>\n
                 the   agreement   is   made;   and   the   offence <\/p>\n
                 continues   to   be   committed   so   long   as   the <\/p>\n
                 combination   persists,   that   is   until   the <\/p>\n
                 conspiratorial   agreement   is   terminated   by <\/p>\n
                 completion of its performance or by abandonment <\/p>\n
                 or   frustration   or   however,   it   may   be.   The   actus <\/p>\n
                 rues in a conspiracy is the agreement to execute <\/p>\n
                 the illegal conduct, not the execution of it. It is not <\/p>\n
                 enough   that   two   or   more   persons   pursued   the <\/p>\n
                 same  unlawful   object  at the  same  time  or in  the <\/p>\n
                 same place; it is necessary to show a meeting of <\/p>\n
                 minds,   a   consensus   to   effect   an   unlawful <\/p>\n
                 purpose.  It is not, however,  necessary that each <\/p>\n
                 conspirator   should   have   been   in   communication <\/p>\n
                 with every other.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
17.      There is no difference between the mode of proof of the <\/p>\n
         offence   of   conspiracy   and   that   of   any   other   offence,   it <\/p>\n
         can be established by direct or circumstantial evidence. <\/p>\n
         (See: Bhagwan Swarup Lal Bishan Lal etc.etc. v. State <\/p>\n
         of Maharashtra AIR 1965 SC 682<\/p>\n
18.      Privacy   and   secrecy   are   more   characteristics   of   a <\/p>\n
         conspiracy,   than   of   a   loud   discussion   in   an   elevated <\/p>\n
         place open to public view. Direct evidence in proof of a <\/p>\n
         conspiracy   is   seldom   available,   offence   of   conspiracy <\/p>\n
         can   be   proved   by   either   direct   or   circumstantial <\/p>\n
                                           14<\/span><\/p>\n
                     evidence.   It   is   not   always   possible   to   give   affirmative <\/p>\n
                     evidence about the date of the formation of the criminal <\/p>\n
                     conspiracy,   about   the   persons   who   took   part   in   the <\/p>\n
                     formation of the conspiracy, about the object, which the <\/p>\n
                     objectors   set   before   themselves   as   the   object   of <\/p>\n
                     conspiracy, and about the manner in which the object of <\/p>\n
                     conspiracy is to be carried out, all this is necessarily a <\/p>\n
                     matter of inference.\n<\/p>\n<\/p>\n
             19.     The   provisions   of   Section  120A  and  120B,   IPC   have <\/p>\n
                     brought   the   law   of   conspiracy   in   India   in   line   with   the <\/p>\n
                     English Law by making the overt act unessential when <\/p>\n
                     the conspiracy is to commit any punishable offence. The <\/p>\n
                     English   Law   on   this   matter   is   well   settled.   Russell   on <\/p>\n
                     crime (12 Ed.Vol. I, p.202) may be usefully noted-\n<\/p>\n<\/p>\n
                             “The   gist   of   the   offence   of   conspiracy   then   lies, <\/p>\n
                             not  in doing the act, or effecting the  purpose  for <\/p>\n
                             which the conspiracy is formed, nor in attempting <\/p>\n
                             to do them, nor in inciting others to do them, but <\/p>\n
                             in   the   forming   of   the   scheme   or   agreement <\/p>\n
                             between the parties, agreement is essential. More <\/p>\n
                             knowledge, or even discussion, of the plan is not, <\/p>\n
                             per se, enough.”<\/p><\/blockquote>\n
                             Glanville  Williams in the “Criminal  Law”  (Second <\/p>\n
                     Ed. P. 382) states-\n<\/p>\n<\/p>\n
                             “The  question  arose  in  an  lowa case,   but  it   was <\/p>\n
                             discussed   in   terms   of   conspiracy   rather   than   of <\/p>\n
                             accessoryship. D, who had a grievance against P, <\/p>\n
                             told E that if he would whip P someone would pay <\/p>\n
                             his fine. E replied that he did not want anyone to <\/p>\n
                             pay his fine,  that  he had a grievance  of his own <\/p>\n
                             against P and that he would whip him at the first <\/p>\n
                             opportunity.   E   whipped   P.   D   was   acquitted   of <\/p>\n
                             conspiracy because  there  was  no  agreement  for <\/p>\n
                             ‘concert of action’, no agreement to ‘co-operate’.”<\/p>\n<\/blockquote>\n
      The   learned   Solicitor   General   also   referred   to   the   summing   up   by <\/p>\n
Coleridge, J. in R. Vs. Murphy (ER) at page 508.\n<\/p>\n
\n                                             14<\/span><\/p>\n
79.     Ultimately,   the   learned   Solicitor   General   relied   on   the   celebrated <\/p>\n
decision   in  State   (NCT   of   Delhi)   Vs.   Navjot   Sandhu   [2005   (11)   SCC  <\/p>\n
600].  On this basis, it was urged by the learned Solicitor General that the <\/p>\n
circumstances which were found to have been established beyond doubt, <\/p>\n
led   only   to   one   conclusion   that   the   appellant   was   responsible   for   the <\/p>\n
incident   of   shooting   inside   the   Red   Fort   on   the   night   of   22.12.2000,   in <\/p>\n
which three Army soldiers were killed.  This was nothing but a well planned <\/p>\n
conspiracy and the responsibility of this ghastly incident was taken up by <\/p>\n
Lashkar-e-Toiba.     This   was   undoubtedly   a   conspiracy,   well   planned, <\/p>\n
alongwith   some   other   militants   including   the   deceased   accused   Abu <\/p>\n
Shamal who was also killed in the exchange of fire with the police.  For this <\/p>\n
conspiracy, the appellant illegally entered India and he was receiving huge <\/p>\n
amounts of money to make it possible for himself to execute his design.  It <\/p>\n
is   for   this   purpose   that   he   falsely   created   and   forged   number   of <\/p>\n
documents.  The whole idea was to legitimize his stay in India for which he <\/p>\n
got   prepared   a   false   ration   card,   a   false   license   and   also   opened   bank <\/p>\n
accounts   with   the   false   addresses.     He   had   taken   adequate   care   to <\/p>\n
conceal his real identity.   He described himself as a trader and a resident <\/p>\n
of Jammu, which was also a patent falsehood.  He went on to the extent of <\/p>\n
getting married allegedly on the basis of an advertisement.  He also spent <\/p>\n
huge   amounts   without   there   being   any   source   of   money   and   deposited <\/p>\n
lakhs   of   rupees   in   some   other   bank   accounts.     It   may   be   that   those <\/p>\n
                                             14<\/span><\/p>\n
persons,   in   whose   accounts   he   deposited   money,   might   have   been <\/p>\n
acquitted   getting   benefit   of   doubt   regarding   their   complicity,   but   the   fact <\/p>\n
remains that the appellant had no explanation to offer.  Similarly, barely 14 <\/p>\n
days   prior   to   the   incident,   he   got   married   to   Rehmana   Yusuf   Farukhi, <\/p>\n
another   accused   who   was   acquitted.     It   may   be   that   Rehmana   Yusuf <\/p>\n
Farukhi also did not have any idea and, therefore, was granted the benefit <\/p>\n
of doubt; however, that does not, in any manner, dilute the nefarious plans <\/p>\n
on the part of the appellant.   He collected highly sophisticated arms and <\/p>\n
ammunition and some arms were proved to have been used in the attack <\/p>\n
on the Red Fort.   The attack on the soldiers staying in the Army Camp at <\/p>\n
Red Fort was nothing but a war waged against the Government of India.  It <\/p>\n
was clear that there were more than one person.  Therefore, it was nothing <\/p>\n
but   a   well   planned   conspiracy,   in   which   apart   from   the   appellant,   some <\/p>\n
others were also involved.\n<\/p>\n<\/p>\n
80.    The   learned   Solicitor   General   then   urged   that   the   appellant   was <\/p>\n
rightly convicted for the offences punishable under Sections 120-B, 121-A, <\/p>\n
121,   IPC,   Section   120-B   read   with   Section   302,   IPC,   Sections <\/p>\n
468\/471\/474,   IPC,   Sections   186\/353\/120-B,   IPC   and   Section   14   of   the <\/p>\n
Foreigners Act.\n<\/p>\n<\/p>\n
81.    There was no argument addressed before us to the effect that there <\/p>\n
was  no conspiracy.   The only argument advanced was  that the appellant <\/p>\n
                                              14<\/span><\/p>\n
alone could not have been convicted for the conspiracy, since all the other <\/p>\n
accused   were   acquitted.     We   have   already   stated   the   principles   which <\/p>\n
have emerged from various decisions of this Court.  Once the prosecution <\/p>\n
proves that there was a meeting of minds between two persons to commit <\/p>\n
a crime, there would be an emergence of conspiracy.  The fact that barely <\/p>\n
within minutes of the attack, the BBC correspondents in Srinagar and Delhi <\/p>\n
were   informed,   proves   that   the   attack   was   not   a   brainchild   of   a   single <\/p>\n
person.   The information reached to BBC correspondent at Srinagar and <\/p>\n
Delhi  sufficiently  proves that  there  was  a definite  plan  and  a conspiracy. <\/p>\n
Again the role of other militants was very clear from the wireless message <\/p>\n
intercepted   at   the   instance   of   BSF.     Unless   there   was   a   planning   and <\/p>\n
participation   of   more   than   one   persons,   all   this   could   never   have <\/p>\n
happened.    For   the  execution  of  the   nefarious  plans,   the  militants   (more <\/p>\n
than one in number) entered under the guise of watching  Son et Lumiere <\/p>\n
show and while doing so, they smuggled arms inside the Red Fort.   It is <\/p>\n
after the show taking the advantage of the darkness, they started shooting, <\/p>\n
in   which   they  first  killed   the   Sentry   and   then   the   other   two   persons   who <\/p>\n
were the soldiers and then taking further advantage of the darkness, they <\/p>\n
scaled over the wall and fled.   All this had to be a pre-planned attack for <\/p>\n
which the militants must have made a proper reconnaissance, must have <\/p>\n
also found out the placements of Army barracks and the escape route from <\/p>\n
the   backside   of   the   Red   Fort.     It   was   not   a   stray   attack   of   some <\/p>\n
                                            14<\/span><\/p>\n
desperados, which was undoubtedly an extremely well-planned attempt to <\/p>\n
overawe   the   Government   of   India   and   also   to   wage   war   against   the <\/p>\n
Government of India.  It has already been held in Kehar Singh Vs. State  <\/p>\n
(Delhi   Admn.)   [AIR   1988   SC   1883]  that   the   evidence   as   to   the <\/p>\n
transmission of thoughts sharing the unlawful design would be sufficient for <\/p>\n
establishing   the   conspiracy.     Again   there   must   have   been   some   act   in <\/p>\n
pursuance of the agreement.  The offence under Section 121 of conspiring <\/p>\n
to wage a war is proved to the hilt against the appellant, for which he has <\/p>\n
been rightly held guilty for the offence punishable under Sections 121 and <\/p>\n
121-A,   IPC.     The   appellant   is   also   rightly   held   guilty   for   the   offence <\/p>\n
punishable under Section 120-B, IPC read with Section 302, IPC.   In the <\/p>\n
aforementioned decision of Navjot Singh Sandhu it has been held by this <\/p>\n
Court:\n<\/p>\n<\/p>\n
                “Thus   the   conspirator,   even   though   he   may   not   have <\/p>\n
                indulged in the actual criminal operations to execute the <\/p>\n
                conspiracy,   becomes   liable   for   the   punishment <\/p>\n
                prescribed   under   Section   302,   IPC.     Either   death <\/p>\n
                sentence   or   imprisonment   for   life   is   the   punishment <\/p>\n
                prescribed under Section 302, IPC.”<\/p><\/blockquote>\n
          In this view, we agree with the verdict of the trial Court as well as the <\/p>\n
High Court.\n<\/p>\n<\/p>\n
82.       No other point was argued before us at the instance of the defence. <\/p>\n
That leaves us with the question of punishment.   The trial Court awarded <\/p>\n
                                              14<\/span><\/p>\n
the death sentence to the appellant Mohd. Arif @ Ashfaq for the offence <\/p>\n
under  Section   121  IPC   for  waging   war   against  the  Government   of  India. <\/p>\n
Similarly,  he was  awarded  death sentence for the  offence under Section <\/p>\n
120B   read   with   Section   302,   IPC   for   committing   murder   of   Naik   Ashok <\/p>\n
Kumar,   Uma   Shankar   and   Abdullah   Thakur   inside   the   Red   Fort   on <\/p>\n
22.12.2000.  For the purpose of the sentences, the other convictions being <\/p>\n
of minor nature are not relevant.   On a reference having been made to it, <\/p>\n
the  High Court ultimately confirmed the death sentence.    The  High court <\/p>\n
also concurred with the finding of the trial Court that this was a rarest of the <\/p>\n
rare case.   The  High  Court has observed  that the  counsel  appearing  for <\/p>\n
him did not highlight any mitigating circumstance justifying the conversion <\/p>\n
of   death   sentence   to   life   imprisonment   perhaps   because   the   learned <\/p>\n
counsel  was   conscious  of  the  futility  of  the  submission.     The   High  Court <\/p>\n
specifically   found   that   accused   had   hatched   a   conspiracy   to   attack   the <\/p>\n
Indian Army stationed inside the national monument for protecting it from <\/p>\n
any invasion by the terrorists and had executed also that conspiracy with <\/p>\n
the help of his  other associate militants and in that process they had killed <\/p>\n
three   army   Jawans   and   more  could   also   have   lost  their  lives  but  for   the <\/p>\n
immediate retaliation by the members of the Quick Reaction Team of the <\/p>\n
Army.  In that view, the High Court concurred with the finding of this being <\/p>\n
a   rarest   of   the   rare   case.     The   question   is   whether   we   should   give   the <\/p>\n
same verdict in respect of the death sentence.\n<\/p>\n
\n                                             14<\/span><\/p>\n
83.    This was, in our opinion, a unique case where Red Fort, a place of <\/p>\n
paramount   importance   for   every   Indian   heart   was   attacked   where   three <\/p>\n
Indian soldiers lost their lives.  This is a place with glorious history, a place <\/p>\n
of   great   honour   for   every   Indian,   a   place   with   which   every   Indian   is <\/p>\n
attached   emotionally,   and   a   place   from   where   our   first   Prime   Minister <\/p>\n
delivered his speech on 15th  August, 1947, the day when India broke the <\/p>\n
shackles of foreign rule and became a free country.  It has since then been <\/p>\n
a   tradition   that   every   Hon’ble   Prime   Minister   of   this   country   delivers   an <\/p>\n
address   to   the   nation   on   every   15th  August   to   commemorate   that   great <\/p>\n
event.     This   Fort   was   visualized   and   constructed   by   Mughal   Emperor <\/p>\n
Shahjahan who is known as “Shahjahan the builder”.  It took nine years for <\/p>\n
its completion.   It was here that Shahjahan ascended the Throne on 18th <\/p>\n
April, 1648 amidst recitation of sacred Aayates of Holy Quran and mantras <\/p>\n
from Hindu scriptures.   The great historical monument thereafter saw the <\/p>\n
rule of number of Mughal Emperors including Aurangzeb.   It also saw its <\/p>\n
most unfortunate capture by Nadir Shah.   It was in 1837, the last Mughal <\/p>\n
Emperor   Bahadurshah   Zafar   II   took   over   the   Throne.     It   must   be <\/p>\n
remembered that it was during the empire of Bahadurshah Zafar II that the <\/p>\n
first war of Independence was fought.   The Red Fort became the ultimate <\/p>\n
goal during that war of Independence which broke out in the month of May, <\/p>\n
1857.   The Fort breathed free air for a brief period.   But ultimately in the <\/p>\n
month of September, 1857, it was captured by the British. Red Fort is not <\/p>\n
                                             14<\/span><\/p>\n
just   one   of   the   several   magnificent   monuments   that   were   built   by   the <\/p>\n
Mughal emperors during their reign for nearly three centuries. It is not just <\/p>\n
another   place   which   people   from   within   and   outside   the   country   visit   to <\/p>\n
have   a   glimpse   of   the   massive   walls   on   which   the   Fort   stands   or   the <\/p>\n
exquisite workmanship it displays.   It is not simply a tourist destination in <\/p>\n
the   capital   that   draws   thousands   every   year   to   peep   and   revel   into   the <\/p>\n
glory of the times by gone.     Its importance lies in the fact that it has for <\/p>\n
centuries symbolised the seat of power in this country.   It has symbolised <\/p>\n
the supremacy of the Mughal and the British empires just as it symbolises <\/p>\n
after   independence   the   sovereignty   of   the   world’s   largest   democratic <\/p>\n
republic.   It   is   a   national   symbol   that   evokes   the   feelings   of   nationalism <\/p>\n
amongst   the   countrymen   and   reminds   them   of   the   sacrifices   that   the <\/p>\n
freedom  fighters made for the liberation  of this country from foreign rule. <\/p>\n
No wonder even after the fall of the fort to the British forces in the first war <\/p>\n
of independence in 1857 and the shifting of the seat of power from the Red <\/p>\n
Fort to the Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru after his <\/p>\n
historic “Tryst with Destiny” speech unfurled the tricolor from the ramparts <\/p>\n
of the Red Fort on 15th  August 1947.   That singular event symbolised the <\/p>\n
end of the British rule in this country and the birth of an independent India. <\/p>\n
An  event  that  is  relived  and  re-acted  every  succeeding  year  since 1947, <\/p>\n
when every incumbent Prime Minister addresses the nation from atop this <\/p>\n
great   and   historic   Fort   reminding   the   countrymen   of   the   importance   of <\/p>\n
                                                14<\/span><\/p>\n
freedom,   the   need   for   its   preservation   and   the   values   of   constitutional <\/p>\n
democracy   that   guarantees   the   freedoms   so   very   fundamental   to   the <\/p>\n
preservation   of   the   unity   and   integrity   of   this   country.   An   attack   on   a <\/p>\n
symbol that is so deeply entrenched in the national psyche was, therefore, <\/p>\n
nothing but an attack on the very essence of the hard earned freedom and <\/p>\n
liberty so very dear to the people of this country.   An attack on a symbol <\/p>\n
like Red Fort was an assault on the nation’s will and resolve to preserve its <\/p>\n
integrity   and   sovereignty   at   all   costs.   It   was   a   challenge   not   only   to   the <\/p>\n
Army battalions stationed inside the monument but the entire nation. It was <\/p>\n
a   challenge   to   the   very   fabric   of   a   secular   constitutional   democracy   this <\/p>\n
country   has   adopted   and   every   thing   that   is   good   and   dear   to   our <\/p>\n
countrymen.   It   was   a   blatant,   brazenfaced   and   audacious   act   aimed   to <\/p>\n
over awe the Government of India.  It was meant to show that the enemy <\/p>\n
could  with   impunity   reach  and  destroy   the   very  vitals   of  an   institution  so <\/p>\n
dear to our fellow countrymen for what it signified for them.  It is not for no <\/p>\n
reason that whosoever comes to Delhi has a yearning to visit the Red Fort. <\/p>\n
It   is   for  these  reasons  that   this  place  has  become   a  place  of   honour   for <\/p>\n
Indians.   No one can ever forget the glorious moments when the Indians <\/p>\n
irrespective   of   their   religions   fought   their   first   war   of   Independence   and <\/p>\n
shed their blood.  It was, therefore, but natural for the foreigner  enemies to <\/p>\n
plan an attack on the army specially kept to guard this great monument. <\/p>\n
This was not only an attack on Red Fort or the army stationed therein, this <\/p>\n
                                               14<\/span><\/p>\n
was an arrogant assault on the self respect of this great nation.   It was a <\/p>\n
well   thought   out   insult   offered   to   question   the   sovereignty   of   this   great <\/p>\n
nation by foreign nationals.  Therefore, this case becomes a rarest of rare <\/p>\n
case.     This   was   nothing   but   an   undeclared   war   by   some   foreign <\/p>\n
mercenaries like the present appellant and his other partner in conspiracy <\/p>\n
Abu   Shamal   and   some   others   who   either   got   killed   or   escaped.     In <\/p>\n
conspiring   to   bring  about   such   kind   of   attack   and   then   carrying   out   their <\/p>\n
nefarious activities in systematic manner to make an attack possible was <\/p>\n
nothing   but   an   attempt   to   question   the   sovereignty   of   India.   Therefore, <\/p>\n
even without any reference to any other case law, we held this case to be <\/p>\n
the rarest of rare case.   Similar sentiment was expressed by this Court in <\/p>\n
State   v.   Navjot   Singh   Sandhu  [2005   (11)   SCC   600].     The   Court <\/p>\n
expressed its anguish in the following words.\n<\/p>\n<\/p>\n
                “In the instant case, there can be no doubt that the most <\/p>\n
                appropriate punishment is death sentence. That is what <\/p>\n
                has been awarded by the trial Court and the High Court. <\/p>\n
                The present case, which has no parallel in the history of <\/p>\n
                Indian   Republic,   presents   us   in   crystal   clear   terms,   a <\/p>\n
                spectacle   of   rarest   of   rare   cases.     The   very   idea   of <\/p>\n
                attacking   and   overpowering   a   sovereign   democratic <\/p>\n
                institution   by   using   powerful   arms   and   explosives   and <\/p>\n
                imperiling   the   safety   of   a   multitude   of   peoples’ <\/p>\n
                representatives, constitutional functionaries and officials <\/p>\n
                of Government of India and engaging into a combat with <\/p>\n
                security forces is a terrorist act of gravest severity. It is a <\/p>\n
                classic example of rarest of rare cases.   This question <\/p>\n
                of   attack   on   the   army   and   the   killing   of   three   soldiers <\/p>\n
                sent shock waves of indignation throughout the country. <\/p>\n
                                              15<\/span><\/p>\n
                We have no doubt that the collective conscience of the <\/p>\n
                society can be satisfied by capital punishment alone.”<\/p><\/blockquote>\n
        We agree with the sentiments expressed in Navjot Singh Sandhu’s  <\/p>\n
case (cited supra):\n<\/p>\n<\/p>\n
                “The challenge to the unity, integrity and sovereignty of <\/p>\n
                India   by   these   acts   of   terrorists   and   conspirators,   can <\/p>\n
                only   be   compensated   by   giving   the   maximum <\/p>\n
                punishment   to   the   person   who   is   proved   to   be   the <\/p>\n
                conspirator in this treacherous act.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
84.     A   conspiracy   to   attack   the   Indian   Army   unit   stationed   in   Red   Fort <\/p>\n
and the consequent un-provoked attack cannot be described excepting as <\/p>\n
waging war  against India and there can be no question of compromising <\/p>\n
on this issue.  The trial Court has relied on number of other cases including <\/p>\n
the case of Navjot Singh Sandhu (cited supra) as also the case of State  <\/p>\n
of Tamil Nadu v. Nalini<\/a> [AIR 1999 SC 2640].  We do not want to burden <\/p>\n
the judgment by quoting from all these cases.  However, we must point out <\/p>\n
that in  Machhi Singh v. State of Punjab’s<\/a> case   [1983 (3) SCC 470]  a <\/p>\n
principle   was   culled   out   that   when   the   collective   conscience   of   the <\/p>\n
community   is   so   shocked,   that   it   will   expect   the   holders   of   the   judicial <\/p>\n
power  centre to inflict death penalty irrespective of their personal opinion <\/p>\n
as regards  desirability  or otherwise  of retaining death penalty, same  can <\/p>\n
be  awarded.    The fourth test includes  the crime  of enormous  proportion. <\/p>\n
                                                15<\/span><\/p>\n
For instance when multiple murders say of all or almost all the members of <\/p>\n
a family or a large number of persons of a particular caste, community or <\/p>\n
locality are committed.   Applying both the tests here we feel that this is a <\/p>\n
case   where   the   conscience   of   the   community   would   get   shocked   and   it <\/p>\n
would definitely expect the death penalty for the appellant.  Three persons <\/p>\n
who   had   nothing   to   do   with   the   conspirators   were   killed   in   this   case. <\/p>\n
Therefore,   even  Machhi   Singh’s   case   (cited   supra)  would   aptly   apply. <\/p>\n
Even in  Bachan Singh v. State of Punjab  [AIR 1980 SC 898]  case, this <\/p>\n
Court referred to the penal statutes of States in USA framed after Furman  <\/p>\n
v. Georgia  (1972) 33 L Ed 2d 346: 408 US 238)  in general and Clause <\/p>\n
2(a),(b),   (c)   and   (d)   of   the   Indian   Penal   Code   (Amendment)   Bill   duly <\/p>\n
passed   in   1978   by   Rajya   Sabha.     Following   aggravating   circumstances <\/p>\n
were suggested by the Court in that case as aggravating circumstances:-<\/p>\n
               “(a)     If the murder has been committed after previous <\/p>\n
                        planning and involves extreme brutality; or <\/p>\n<\/blockquote>\n
               (b)      if the murder involves exceptional depravity; or<\/p>\n<\/blockquote>\n
               (c)      if the murder is of a member of any of the armed <\/p>\n
                        forces of the Union or of a member of any police <\/p>\n
                        force or of any public servant and was committed-<\/p>\n<\/blockquote>\n
                        (i)      while   such   member   or   public   servant   was <\/p>\n
                                 on duty; or<\/p>\n<\/blockquote>\n
                        (ii)     in   consequence   of   anything   done   or <\/p>\n
                                 attempted   to   be   done   by   such   member   or <\/p>\n
                                 public servant in the lawful discharge of his <\/p>\n
                                 duty   as   such   member   or   public   servant <\/p>\n
                                 whether at the time of murder he was such <\/p>\n
                                             15<\/span><\/p>\n
                               member or public servant, as the case may <\/p>\n
                               be,   or   had   ceased   to   be   such   member   of <\/p>\n
                               public servant; or<\/p>\n<\/blockquote>\n
               (d)     if the murder is of a person who had acted in the <\/p>\n
                       lawful   discharge   of   his   duty   under   S.43   of   the <\/p>\n
                       Code   of   Criminal   Procedure,   1973,   or   who   had <\/p>\n
                       rendered   assistance   to   a   Magistrate   or   a   police <\/p>\n
                       officer   demanding   his   aid   or   requiring   his <\/p>\n
                       assistance   under   S.37   and   S.129   of   the   said <\/p>\n
                       Code.”<\/p><\/blockquote>\n
       The   Court   then   observed   that   there   could   be   no   objection   to   the <\/p>\n
acceptance of these indicators.  The Court, however, preferred not to fetter <\/p>\n
the judicial conscience by attempting to make an exhausting enumeration <\/p>\n
one way or the other.  The circumstance at “(c)” would be fully covering the <\/p>\n
present   case   since   the   three   soldiers   who   lost   their   lives   were   the <\/p>\n
members of the armed forces and Abdullah one of them was actually doing <\/p>\n
his Sentry duty though there is no evidence available about as to what duty <\/p>\n
the other two were doing.  But there is no reason to hold that their murder <\/p>\n
was  in any manner  prompted by any provocation or  action on their  part. <\/p>\n
This   would   be   an   additional   circumstance   according   to   us   which   would <\/p>\n
justify the death sentence.   During the whole debate the learned defence <\/p>\n
counsel did not attempt to bring any mitigating circumstance.   In fact, this <\/p>\n
is a unique case where there is one most aggravating circumstance that it <\/p>\n
was   a   direct   attack   on   the   unity,   integrity   and   sovereignty   of   India   by <\/p>\n
foreigners.  Thus, it was an attack on Mother India.  This is apart from the <\/p>\n
fact that as many as three persons had lost their lives.   The conspirators <\/p>\n
                                            15<\/span><\/p>\n
had no place in India.   Appellant was a foreign national and had entered <\/p>\n
India without any authorization or even justification.  This is apart from the <\/p>\n
fact   that   the   appellant   built   up   a   conspiracy   by   practicing   deceit   and <\/p>\n
committing various other offences in furtherance of the conspiracy to wage <\/p>\n
war against India as also to commit murders by launching an unprovoked <\/p>\n
attack on the soldiers of Indian Army.  We, therefore, have no doubts that <\/p>\n
death sentence was the only sentence in the peculiar circumstance of this <\/p>\n
case.  We, therefore, confirm the judgment of the trial Court and the High <\/p>\n
Court   convicting   the   accused   and   awarding   death   sentence   for   the <\/p>\n
offences under Section 302, IPC.  We also confirm all the other sentences <\/p>\n
on all other counts and dismiss these appeals.\n<\/p>\n<\/p>\n
                                                             …………………………J.\n<\/p>\n
\n                                                             [V.S. Sirpurkar]<\/p>\n
                                                             …………………………J.\n<\/p>\n
\n                                                             [T.S. Thakur]<\/p>\n
August 10, 2011;\n<\/p>\n
\nNew Delhi.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohd.Arif @ Ashfaq vs State Of Nct Of Delhi on 10 August, 2011 Author: V Sirpurkar Bench: V.S. Sirpurkar, T.S. Thakur 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-210489","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohd.Arif @ Ashfaq vs State Of Nct Of Delhi on 10 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohd-arif-ashfaq-vs-state-of-nct-of-delhi-on-10-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohd.Arif @ Ashfaq vs State Of Nct Of Delhi on 10 August, 2011 - 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