As per the case facts, a challan was presented regarding a crime committed to destabilize the country through a series of bomb blasts, including one in a crowded market. Several ...
2023INSC605 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1269 OF 2013
MOHD. NAUSHAD …APPELLANT(S)
VERSUS
STATE (GOVT. OF NCT OF DELHI) …RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.1270-1271 OF 2013
AND
CRIMINAL APPEAL NOS.
@ SLP (CRL.) NOS.6447–6451 OF 2013
J U D G M E N T
SANJAY KAROL J.
Prosecution Case.........................................................................................8
High Court and Trial Court Findings..........................................................16
Submissions of Counsels...........................................................................36
Submissions on behalf of A3, Mohd. Naushad.........................................36
Submissions on behalf of A9, Javed Ahmed Khan...................................45
Submissions on behalf of A5 and A6.......................................................46
Submission on behalf of the State (NCT of Delhi)....................................47
Prosecution Witnesses................................................................................48
Undisputed Facts.......................................................................................52
Brief Narration of Important Witnesses......................................................54
Opinion of this Court.................................................................................84
Conclusion...............................................................................................179
Sentence of A3, A5, A6 and A9.................................................................181
2
Leave granted.
2.In connection with FIR No.517 of 1996 dated 21.05.1996
registered at Police Station Lajpat Nagar/Special Cell, the
prosecution presented a challan in respect of a crime
committed for destabilising the country by having a series of
bomb blasts. As per the charge-sheet 17 persons (A1 to A17)
conspired and actually conducted one blast on 21.05.1996,
at a crowded central market, Lajpat Nagar, New Delhi.
3.In connection with another FIR No.286/1996 dated
18.05.1996 another challan was presented before the Trial
Court for theft in connection with a main crime, against the
very same four, out of seventeen, accused persons.
4.It is a matter of record that out of seventeen accused persons
one, i.e., A13 expired and seven, i.e., A11 to A17 were
declared as proclaimed offenders and never faced any trial.
The remaining nine accused persons facing trial were
charged for having committed several offences under different
penal provisions of the law of the land. The particulars of all
the accused and the offence for which they were charged, if
any, are furnished hereunder in a tabular form:
Sr. Name Accused Charges
3
No. No.
1.Farooq Ahmed
Khan @ Anwar
Sadat
A1
IPC :- 120B, 124-A, 302, 307 and
436 r/w Section 120B
Explosive Substances Act :-
Section 4 r/w Section 5
Arms Act :-Section 25
2.Farida Dar @
Bahanji A2
IPC :- 120B, 124-A, 302, 307 and
436 r/w Section 120B
Explosive Substances Act :-
Section 4 r/w Section 5
3.Mohd. Naushad
A3
IPC :- 120B, 124-A, 302, 307, 411
and 436 r/w Section 120B
Explosive Substances Act :-
Section 4 r/w Section 5
4.Mirza Iftqar
Hussain @ Saba A4
IPC :- 120B, 124-A, 302, 307 and
436 r/w Section 120B
5.Mirza Nissar
Hussain @ Naza A5
IPC :- 120B, 124-A, 302, 307, 411
and 436 r/w Section 120B
Explosive Substances Act :-
Section 4 r/w Section 5
6.Mohd. Ali Bhatt
@ Killey A6
7.Latif Ahmed
Waza A7
IPC :- 120B, 124-A, 302, 307 and
436 r/w Section 120B
Explosive Substances Act :-
Section 4 r/w Section 5
8.Syed Maqbool
Shah A8
IPC :- 120B, 124-A, 302, 307, 411
and 436 r/w Section 120B
IPC :- 212
9.Javed Ahmed
Khan @ Javed
Junior @ Chhota
Javed
A9
IPC :- 120B, 124-A, 302, 307 and
436 r/w Section 120B
10.Abdul Gani @
Assadullah @
Nikka
A10
11.Bilal Ahmed Beg A11
4
Declared Proclaimed Offender(s)12.Juber @
Mehrazuddin A12
13.Riyaz Ahmed
Sheikh @ Riyaz
@ Mulla
A13 Expired during trial
14.Mohd. Ashraf
Bhatta A14
Declared Proclaimed Offender(s)
15.Javed Kariwar @
Javed Ahmed
Goojri
A15
16.Ibrahim Abdul
Razak Menan @
Muslaq
A16
17.Daud Hassan
Sheikh Kaskar
@ Daud
A-17
5.The Trial Court vide common judgment dated 08.04.2010
convicted/acquitted the accused facing trial in relation to
each one of the offences as also awarded requisite
punishment, which also is indicated in a tabular form:
Sr.
No.
Name Conviction/
Acquittal
In relation to crime
under
Punishment
Awarded
1.A1 – Farooq
Ahmed
Convicted
Explosive Substances
Act :-Section 4 r/w
Section 5
R.I. for 5
Years
Arms Act :- Section 25 R.I. for 7
years
Acquitted IPC :- 120B, 124-A, 302,
307 and 436 r/w Section
120B
NA
2.A2 – Farida
Dar
Convicted Explosive Substances
Act :- Section 4 r/w
Section 5
Imprisonment
for period
already
5
undergone
Acquitted IPC :- 120B, 124-A, 302,
307 and 436 r/w Section
120B
NA
3.A3 – Mohd
Naushad
Convicted IPC :- Section 302, 307,
436, 411 and 120B
Death
Sentence
Explosive Substances
Act :- Section 4 r/w
Section 5
4.A4 - Mirza
Iftqar Hussain
@ Saba
Acquitted IPC :- 120B, 124-A, 302,
307 and 436 r/w Section
120B
NA
5.A5 – Mirza
Nissar
Hussain @
Naza
Convicted IPC :-Section 302, 307,
436, 411 and 120B Death
Sentence
Acquitted Explosive Substances
Act :- Section 4 r/w
Section 5
NA
6.A6 – Mohd.
Ali Bhatt @
Killey
Convicted IPC :-Section 302, 307,
436, 411 and 120B Death
Sentence
Acquitted Explosive Substances
Act :- Section 4 r/w
Section 5
NA
7.A7 - Latif
Ahmed Waza
Acquitted IPC :-Section 302, 307,
436, 411 and 120B NA
Acquitted Explosive Substances
Act :- Section 4 r/w
Section 5
NA
8.A8 - Syed
Maqbool Shah
Acquitted IPC :- 120B, 124-A, 302,
307 and 436 r/w Section
120B
NA
Acquitted IPC :- 212 NA
9.A9 – Javed
Ahmed
Khan
Convicted IPC :- 302, 307, 436 and
120B
Life
Imprisonment
10.A10 - Abdul
Gani @
Assadullah @
Nikka
Acquitted IPC :- 120B, 124-A, 302,
307 and 436 r/w Section
120B
NA
6
6.It is a matter of record that neither the Accused nor the State
preferred any appeal against the judgment of acquittal
and/or conviction and corresponding sentence in relation to
A1 to A2. Equally, no appeal was preferred against the
judgment of acquittal of A4, A7, A8 and A10 on all counts.
As also judgment of acquittal of some of the accused in
relation to some of the charged offences.
7.Only the accused A3, A5, A6 and A9 preferred separate
appeals assailing the judgment of their conviction and
sentence rendered by the Trial Court. The death sentence
awarded against three of the accused was referred for
confirmation to the jurisdictional High Court which was
registered as Death Sentence Reference No.2 of 2010 and the
appeals preferred by the accused were registered as Criminal
Appeal Nos.948, 949, 950 and 951 of 2010 which stand
decided vide common judgment dated 22.11.2012 rendered
by the High Court of Delhi at New Delhi, in terms whereof,
the accused were either acquitted and/or their conviction
affirmed only in relation to certain offences.
7
8.The final picture, thus emerging, as on date, is indicated in
the following tabular form:
Sr.
No.
Name Conviction/
Acquittal
In relation to crime
under
Punishment
Awarded
1.A3 – Mohd
Naushad
Conviction
Upheld
IPC :- Section 302,
307, 436, and 120B
Explosive
Substances Act :-
Section 5
Life
Imprisonment
(Death
Sentence
Commuted)
Acquittal
against
conviction
IPC :- Section 411NA
2.A5 – Mirza
Nissar
Hussain @
Naza
Acquittal IPC :-Section 302,
307, 436, 411 and
120B
NA
3.A6 – Mohd. Ali
Bhatt @ Killey
Acquittal IPC :-Section 302,
307, 436, 411 and
120B
NA
4.A9 – Javed
Ahmed Khan
Conviction
Upheld
IPC :- 302, 307,
436 and 120B
Life Imprison-
ment
9.The said judgment dated 22.11.2012 is under consideration
in the instant appeals. Whereas A3 and A9 seek complete
acquittal, the prosecution seeks complete reversal of the
judgment rendered by the High Court, both on the question
of conviction and sentence as awarded by the Trial Court.
Prosecution Case
10.The prosecution case emerging from the record, also as set
out by the Courts below, is as under:
8
10.1On 21.05.1996, a bomb blast took place in the Central
Market, Lajpat Nagar, New Delhi, at 6.30 PM. This incident
resulted in 13 deaths and 38 injuries, besides extensive loss
to properties, both moveable and immoveable. PW-21 was
the first one to inform the police about the incident; he
witnessed the incident and reported to the concerned Police
Station on the basis of which the FIR was lodged. The same
evening there were media reports that Jammu Kashmir
Islamic Front (JKIF, in short) had claimed responsibility for
the horrific event. Investigation started and the police traced
the calls received by TV Channels - Zee News etc. and found
them to have emanated from two different telephone
numbers in the Kashmir Valley. The Jammu Kashmir Police
was intimated about these facts; and the police were
provided with the two telephone numbers; the first was
registered in the name of A1’s (Farooq Ahmed Khan’s) father
and the second was installed in the house of A2 (Farida
Dar). Those two accused were arrested on 24.05.1996 by
the J&K Police. Subsequently, PW-49 Jasbir Malik formally
arrested them on 25.05.1996 on behalf of the Delhi Police
9
and after bringing them from Srinagar, produced them
before the Metropolitan Magistrate, Patiala House, Delhi on
26.05.1996 and obtained their remand.
10.2The prosecution claimed that the Police obtained a break-
through with the arrest of A9 - Javed on 01.06.1996 at
Ahmedabad by the Gujrat Police, and his making a
disclosure statement Ex.PW-99/B revealing the details of
the various stages in which the explosives were brought into
India and also revealing the names of the master mind
behind the bomb blast, which included Bilal Ahmed Beg
(A11), Juber @ Mehrazuddin (A12), Mohd. Ashraf Bhatt
(A14), Javed Kariwar @ Javed Ahmed Goojri (A15), Ibrahim
Abdul Razak Menan @ Muslaq @ Tiger Menon (A16) and
Daud Hassan Sheikh (A17). On the basis of the information
disclosed by A9 Javed, the police claimed to have verified
certain facts from PW-13 Wazid Kasai and his sister Pappi
(PW-14). In the statements recorded under Section 161
Cr.P.C, these two witnesses partially lent corroboration to
disclosure statement of A9 vis-a-vis handing over of
explosive materials to other conspirators which were
ultimately used in the bombing incident of 21.05.1996.
10
During the course of investigation, A-3’s name cropped up
as one of the key figures instrumental in the bomb blast.
Several unsuccessful attempts were made to nab him and
ultimately on 14.06.1996, upon the receipt of a tipoff, the
police arrested him (A3) along with Mirza Iftekar (A4) from
the New Delhi Railway Station at 7:40 PM while trying to
board a train Vaishali Express to Gorakhpur. On the basis
of disclosure statements made by A3, several vital
incriminating materials in the form of explosives (2 slabs of
RDX, 1 timer, 1 iron solder, 1 wire cutter, 2 araldite tubes, 1
gas cylinder and 1 detonator) were seized. Similarly,
recoveries of incriminating material were allegedly made at
the behest of A4. Both these recoveries were effected on
15.06.1996.
10.3Also, the police obtained information regarding the
whereabouts of other two accused, i.e., A5 - Mirza Nissar
Hussain @Naza and A6 - Mohd. Ali Bhatt @Killey. The police
party apparently went along with A3 & A4 to Gorakhpur
and on 16.06.1996 arrested Killey (A6) and Latif Ahmed
(A7). The police, on the basis of disclosure statement made
by Latif Ahmed (A7) recovered a torn half of a two rupee
11
note, which was a key to obtain funds for Naushad (A3),
through a hawala transaction from one Mangal Chand in
Delhi. On the basis of further information received on
17.06.1996, the police party arrested A5 Naza from
Mussoorie.
10.4On the basis of disclosure statements recorded by A6 and
A7, a police party went to Shalimar Bagh, Delhi on
17.06.1996; the place was identified by the accused A7,
from where thereafter a torn half two rupee note was given
to Mangal Chand, who in turn handed over Rupees one lakh
in cash to A4 to be given to A3 (Naushad). The Seizure
Memo in respect of the said money was prepared. The
prosecution sent another party to Gorakhpur on
18.06.1996 to seize relevant extracts of the guest house
records as well as the railway reservation chart dated
27.05.1996 (pertaining to Shaheed Express) to prove that
Naushad had travelled from Gorakhpur to Delhi on that day.
10.5In the meanwhile, Javed (A9) and Asadullah (A10) along
with two others were detained in Ahmedabad. Both A9 and
A10 were transferred to Jaipur where they were required in
12
connection with another pending case involving trial for the
offence punishable under Section 307 IPC. The prosecution
case is that there was another bomb blast at Dausa,
Rajasthan, in connection with which on 19.07.1996 the
concerned Additional Chief Judicial Magistrate, Jaipur,
namely, Bhagwan Das (PW-100) recorded a judicial
confession of A9 - Javed (Ex.PW-100/A) wherein he narrated
the sequence of events which he was aware of, implicating
various accused as well as identifying their roles in
connection with the bomb blast at Delhi. Apparently, A9 and
A10 were kept in custody and eventually formally arrested
by the Delhi Police on 26.07.1996.
10.6Elaborating further, the case was registered on the basis of
statement of Subhash Chand Katar, a shopkeeper of Pushpa
Market as FIR No.517/96 (Ex. PW-5/A). He stated that at
6:30 PM, a loud blast took place in a Maruti Car standing at
around 10ft from his shop. Complainant was not aware of
the registration number of the car. He did not know as to
who had parked the said car in front of his shop. During
further investigation, it transpired that this car was stolen
13
on the intervening night of 17-18.05.96 from Nizamuddin
East, for which the owner, PW8 - Atul Nath, had registered a
complaint vide FIR No.286/96. The accused, by procuring
different materials from different places, prepared and made
an unsuccessful attempt of bomb blast on 19.05.1996 and
eventually succeeded on 21.05.1996.
10.7The investigation was taken over by the Crime Branch,
Delhi. It is the prosecution’s case that A1 confessed that he
had taken responsibility of Lajpat Nagar bomb blast by
making phone calls to the media and A2 also confessed her
involvement. In pursuance of disclosure statements of A1
and A2, ammunition and explosives were recovered from
their residence.
10.8As stated earlier, on 01.06.1996, A9 - Javed Ahmed Khan
and A10 - Abdul Gani Asadullah were arrested by the
Gujarat Police in a different case. On 02.06.1996, Gujarat
Police informed Delhi Police about arrest of A9 and A10 at
Ahmedabad and their involvement in the Lajpat Nagar bomb
blast. A9 in his disclosure statement to the Police revealed
14
conspiracy which was masterminded by A11 – A17
(Declared as ‘Proclaimed Offenders’) to cause and carry out
acts of terrorism and disruptive activities in India. During
this interrogation, Delhi Police was informed about the
involvement of PW13, who then informed the police about
the involvement of A3.
10.9On 15.06.1996, A3 in his disclosure statement revealed how
and under what circumstances, the bomb blast was caused.
In pursuance of this statement, incriminating materials in
the form of explosives were recovered from his residence.
10.10 On 18.06.1996 and 19.06.1996, A3, A5 and A6
accompanied the police party and in furtherance of their
disclosure statements, the discovery of following facts took
place, which the prosecution has termed as “Pointing Out”:
A) By A3, A5 and A6 on 18.06.1996 :-
(i) Place where fake number plates for use of the stolen
Maruti Car were made; (ii) Dulhan Dupatta Shop where
the car was parked on the day of the unsuccessful blast;
(iii) House No. 134, Gali No. 21, Zakir Nagar where the
stolen Maruti Car was parked before the blast; and (iv)
Place where the duplicate key of the car was thrown,
near Nizammudin.
15
B) By A3 and A5 on 18.06.1996 :-
(i) Deluxe Store, where araldite tube used for making a
bomb, was purchased; and (ii) Vakeel Cable Store, where
2 mtr. wire used for making a bomb, was purchased.
C) By A3 on 18.06.1996:-
(i) The shop from where drill machine for making the
bomb was procured.
D) By A5 and A6 on 18.06.1996:-
(i) The Place of occurrence of the bomb blast.
E) By A3 and A5 on 19.06.1996:-
(i) Unique Agencies, the shop from where the Gas
Cylinder for preparing the bomb was procured; (ii) Spot
from where the Duplicate Key of the car was made; and
(iii) Imperial Sound, the shop from where soldering iron
and solder for making the bomb was purchased.
F) By A5 and A6 on 19.06.1996
(i) Ganesh Electronics, the shop from where 9V battery
for making the bomb was purchased; (ii) Vijay
Electronics, the shop from where soldering of battery for
making part of the bomb was carried out; and (iii)
Imperial Gramaphone, the shop from where Jayco wall
clock for using its part to make the bomb was purchased.
10.11The prosecution, on completion of investigation, after
obtaining opinion of various experts including explosives
experts and collecting all other materials, filed the charge sheet
for trial. All appearing accused claimed not guilty. The
16
prosecution relied on the testimonies of 107 witnesses and
also several material exhibits which included seizure memo,
pointing out memos (Discovery of fact), disclosure statements,
confessional statements of A9 (Ex. 100/A). After the statement
on behalf of accused under Section 313 of Code of Criminal
Procedure (‘Cr.P.C.’) was recorded, A3 - Naushad chose to lead
evidence in defence and relied upon the testimonies of the two
witnesses : DW-1 - Shri Mukesh, a Section Officer, National
Human Rights Commission (NHRC) and DW2 - Shri Arun
Kumar Sharma, Public Relation Inspector.
High Court and Trial Court Findings
11.As already observed, the Trial Court proceeded to convict A3,
A5, A6 and A9 and acquitted A4, A7, A8 and A10. However,
the High Court as the Appellate Court acquitted A5 and A6
on all charges and convicted A3 of certain offences. Both
judgments running into almost 1000 pages deal with the
prosecution case. The findings of the Trial Court and the
High Court on each of the circumstances brought out by the
prosecution as culled out by the Trial Court, are summarised
as follows:
17
Circumstance Circumstance
No.
Trial Court Finding HC Finding
Arrest of A1 and
A2
4 Not Proved Not Discussed
Recovery of Arms
from A1
5 Proved Not Discussed
Recovery of Arms
from A2
6 Proved Not Discussed
Articles recovered
in the personal
search of A1 and
A2
7 Proved Not Discussed
Calls made by A1 8 Not Proved Not Discussed
Arrest of A3 and
A4
9 Proved
PW16, PW39, PW101
have corroborated the
version of each other
in entirety. A3 and A4
failed to explain the
purpose of their visit
to Gorakhpur.
@para179
Recovery of money and
train tickets from the
accused was proved.
Proved
Testimonies of
PW16, PW39, and
PW101 are
substantially
consistent. @para
152
The role of A9 was
to deliver
explosives and the
necessary link to
that effect stood
established by the
fact that A9 gave
explosives to PW-
13, who in turn
knew A3 and the
information about
A3 was gathered
by the Police on
the statement of
PW13 u/s 161
and therefore
non-mentioning of
A9 as regards A3
was of no
consequence.
@para 153
As far as the
telegram to NHRC
for the arrest of
A3 is concerned it
had not been
proved who sent
the telegram.
@para153
18
Recovery of
Explosives at the
residence of A3
10 Proved
Testimonies of PW31,
PW41, and PW101
corroborate each other.
@para193
Recovery of articles
including explosives is
proved. @para193
PW92 admitted his
signature on the
recovery memo
including that of RDX.
@para 185-187
No one was found at
the residence at the
time of
search/recovery.
@para184
Proved
A3’s disclosure
statement u/s
161 led to the
discovery of
explosives hidden
in his house.
Thus the
connection
between A3 and
A9 is established
as A9 delivered
the RDX to PW13
& PW14 and the
same was in turn
delivered to A3.
@para155
The recovery
memo along with
the recovery of
RDX and other
items were held to
be proved. @Para
156
Although PW92
has not supported
the prosecution
case but he did
not deny his
signature on
recovery memo.
@para157
Arrest of A6 12 Not Proved
Not incriminating. @
Para 205-207
Not Proved
Not incriminating.
At best it is a
neutral
circumstance.
@para 207-208
Stay of A3 at
Gorakhpur
13 Proved
PW40 (S.I.) obtained
photocopy of the
Reservation chart of
train showing the
name of A-3 as a
waitlisted passenger.
@para213
PW82 (Hotel Owner)
Not Proved
Railway
reservation chart
cannot be relied
upon. Moreover,
railway official
was not
examined.
Original chart was
not produced.
@para164, 165
19
and PW83 (Hotel
Manager) were
examined. @para210
PW66 visited Gupta
Hotel and seized the
visitors register
wherein the entry of A-
3 as guest staying in
the Hotel was
recorded. @para 211-
212
Stay at Hotel was not
challenged by A3.
Police came to know
about this fact only
through A3’s
disclosure statement
but for which this fact
would not have been
discovered. @para 215
A3 has not disputed
his name in the
railway reservation
chart. @para 216
PW82 was only
witness to the
seizure of a
photocopy of the
visitor’s book.
Handwriting
analysis of the
handwriting of A-
3 did not
establish that he
was the author of
the entry made in
the visitor’s book.
@para 162
PW83(Hotel
Manager) was the
alleged eye
witness who had
seen A3 at the
Hotel but PW83
was not at any
point shown the
accused to be
identified by him.
@para165
The trial court
has inferred the
guilt of the
accused on the
basis of his
silence at the time
of cross-
examination of
the prosecution
witnesses. @para
166-168
Arrest of A5 at
Mussoorie
14 Not Proved
Prosecution failed to
establish the date,
time and place for the
apprehension of A5.
@Para 217-223
Not Discussed
Recovery of
Stepney of
Maruti Car from
A8
15 Not Proved
Inclusive but held not
proved. The
prosecution failed to
prove that stepney was
recovered by A3, A5
Not believed
PW8 identified
that the stepney
was recovered at
the instance of
A3, A5 and A6
20
and A6 from the
residence of A8. @Para
224-230
from the residence
of A8. Also denied
that the said
accused persons
led the police
party to A8’s
residence along
with him or that
he identified the
car stepney. @
Para 124-126
Recovery of
Articles of A1
from house of A8
16 Not Proved Not Discussed
Recovery of Rs. 1
Lakh from A4
17 Proved –
Incriminating against
A3 & A4
A-4 led the police to
Hawala Dealer and
handed over a note of
Rs. 2 which was
handed over to him by
PW-101. @para243
PW-35 voluntarily
joined the above
proceedings as a decoy
customer of a Hawala
dealer and
participated in the
transaction of two-
rupee note being
exchanged with Rs. 1
lakh in the above
manner. @para245
Police witnesses, PW-
101 and PW17
corroborated the
narrative of PW35.
@para249 - 251
An independent
investigation under
FERA was launched
against Mangal Chand
as deposed by PW101.
@para249
Not
Incriminating
The conclusion of
Trial Court is
based on only
hearsay evidence.
HC questioned the
testimony of
independent
witness.
@para186
A3 was not
identified either
by Mangal Chand
or PW35.
@para187
Prosecution did
not produce
Mangal Chand.
His absence is a
vital omission.
@para184
The sequence of
events is not
coherent,
particularly
regarding the
non-discussion as
to how the
discovery of Rs. 1
lakh from Mangal
21
Chand (at the
instance of A4),
after showing a
two rupee note
(recovered from
A7) when A4 & A7
were acquit-ted by
the Trial court
could have been
held as an
incriminating
circumstance.
@para188
Pointing out of
shop where
duplicate
number plate
was prepared
18 Not Proved
Failed to prove beyond
reasonable doubt. @
Para252-256
No documentary proof
of the alleged number
plates. @para256
Owner of shop was
never produced for
examination. No
number plate allegedly
recovered during
investigation was
shown to any witness.
@para256
Not believed
No independent
witness from the
adjoining shop at
the time of
preparation of the
identification
memo
Ex.PW31/R was
examined.
@para116
Pointing out
shop where
Araldite Tube
was purchased
19 Not Proved
Evidence produced is
highly scanty to prove
this circumstance. @
para261
Araldite tubes
recovered from the
residence of A3 was
not shown to PW52 to
ascertain as to
whether it was the
same araldite which
was purchased from
PW 52’s shop.
@para260
Not believed
PW 52 denied the
contents of
statements of
Ex.PW52/A and
also denied that
A3 & A5 went to
his shop with the
Police. @para127
Pointing out of
shop where wire
was purchased
20 Not Proved
Prosecution failed to
prove that the wire
was purchased by A3
& A5 from the shop of
PW 32. @para269
Not Proved
Findings of trial
court upheld.
@para128
22
No oral or
documentary evidence
has come on record.
@para269
Drill Machine-
Pointing Out
from where it
was taken
21 Proved
Material discrepancies
in the testimonies of
PW 101 & PW 31.
@para272
Mere recovery of drill
machine without any
specific mark of
identification from the
shop of PW33 is not
an incriminating piece
of circumstance.
@para273
Prosecution failed to
prove that the drill
machine was ever
used by the A3 for
making any hole in the
cylinder. However, A3
led the police party at
the shop of PW 33 and
the police was not
aware of it prior to
that. @para274
Not Proved
PW33 denied that
A3 had visited the
shop and brought
the drilling
machine.
@Para132
No difference in
quality of
witnesses
compared to other
circumstances,
where the failure
of independent
witnesses to
support the
prosecution case
was fatal. @Para
132
Pointing Out of
House where the
vehicle was
parked for days
before the bomb
blast
22 Not Proved
Pointing out memo Ex.
PW31/S is not an
incriminating piece of
evidence against the
accused persons. No
independent witness
had joined at the time
of alleged recovery.
There is no mention in
the said memo as to
who had parked the
said car at that place
& on which date.
@para278
Not Proved
Finding of Trial
Court upheld.
@para118
23
Pointing out
Dulhan Dupatta
Shop by A3, A5
and A6
23 Proved
Testimony of PW31
and PW39 corroborate
the circumstance and
their testimony remain
unchallenged. The
pointing out memo Ex.
PW-31/R was proved.
@para 280-281
PW61 turned hostile
yet he admitted his
signature on pointing
out memo of the shop.
Ex. PW31/R. @para
283
PW-61 identified A-3
and A-5 in the court.
@para283
Not Proved
beyond
reasonable doubt
PW61 could not
be relied upon
since the pointing
out memo was not
proved and
therefore all
consequential
aspects which
flow from the
pointing out
memo would
sweep away rest of
the evidentiary
value of his
statement.
@para143
This was the case
where TIP should
have been done.
The shop was
already in the
public view and
being
conspicuously
located, there was
nothing to be
discovered by the
Police.
No site plan was
prepared at the
behest of A3, A5 &
A6 for the
purposes of
identification of
the shop. @para
142-143
Law on
identification of
accused was not
followed.
Identification of
PW61 and the
circumstances of
24
A3, A5 & A6
trying to park the
stolen car a day
before explosion
and their pointing
out to Police the
spot at which they
were in Lajpat
Nagar market not
proved. @para
144-156
Recovery of Front
and Rear
Number Plates
through A3, A5
and A6
Numbered as
25 [24
skipped]
Not Proved
Number plates were
allegedly recovered
from an open place
accessible to the
public. No
independent witness
has joined at the time
of alleged recovery
thus, it is not an
incriminating
circumstance to
connect the accused
with the commission
of the offence.
@Para 286-290
Not Proved
Finding of the
Trial Court
upheld. @ Para
117&206
Recovery of
Duplicate Key
through A3, A5
and A6
26 Not Proved
The key was recovered
from an open space
after about 1 month of
the incident which
creates doubt on the
prosecution case.
PW64 (key maker) did
not support the
prosecution case.
@para294 - 295
Not Proved
Trial Court
reasoning upheld
@para177-179
Pointing out
place of incident
through A5 and
A6
26 [Repeated] Not incriminating
@Para 296-298
Not Proved
The alleged
pointing out is an
extremely weak
and tenuous
circumstance and
cannot be held to
have been proved
beyond
reasonable doubt.
@ Para 133-142
Pointing out
shop from where
27 Proved
PW31 & PW39
Not Proved
25
9 Volt battery
was purchased
through A5 and
A6
supported the
prosecution case.
@para 299-308
A5 & A6 have pointed
out the shop from
where 9V battery used
in blast was
purchased.
PW60(shop owner)
identified A5 in court
but not A6 and was
declared hostile.
@para 304
The place, shop and
purchase of battery
was confirmed.
Signatures of PW60 on
pointing out memo Ex.
PW31/L was proved.
@para307
PW 60 could not
clearly identify A5
& A6 and
therefore his
deposition has
been dis-believed.
@Para 193
Circumstances of
getting soldering
of the battery by
A5 and A6
28 Proved
Incriminating against
A5 and A6 @Para 309-
316, 577-580
Testimony of PW-31 &
PW-39 supported the
prosecution case.
@para310 and 315
A5 & A6 have pointed
out the shop from
where 9V battery used
in blast was
purchased. @para312
PW38 identified both
accused in court and
proved the pointing
out memo Ex.
PW31/N. @para312
The place and shop
and affixing wires on
terminals on 9V
battery was confirmed.
Not Proved
HC reversed the
finding on the
ground that PW38
stated in his cross
examination that
he had signed on
blank papers and
pointing out
memo was
prepared
somewhere else.
Absence of any
date approximate
period further
injects vagueness
into the evidence.
@Para 174-176,
192, 197-198
26
@para314
No explanation offered
by accused as regards
purpose of having the
wires fixed on
terminals of 9V
battery. @para314
PW 60 have already
proved the purchase of
9V battery and PW 38
corroborated the
version and
establishes identity of
both the accused
persons. @para314
Pointing out
shop from where
Jayco Wall Clock
was purchased
A5 and A6
29 Proved
PW31 & PW39 have
supported the
prosecution case.
@para319, 320
A5 & A6 pointed out
the shop from where
Jayco wall clock was
purchased.
@Para319,320
PW 50 deposed that
accused has
purchased wall clock
from his shop.
@para321
The pointing out
memo Ex.PW 31/H
was proved and his
signatures were
identified. @para321
Bill book contained his
signature. PW50
described their
appearance but could
Not Proved
When PW50 &
PW48 failed to
identify the
accused and PW
48 identified
someone else, no
interference can
be drawn or fact
be established
merely by proving
the pointing out
memo or
signatures on the
same.
Failure to identify
the accused is
fatal blow to the
case of
prosecution.
@Para 312-319
27
not identify as it was a
matter of many years.
@Para321
PW50 expressed his in
ability to admit or
deny if A5 or A6 were
the boys who had led
the team to his shop.
@ Para 322
Existence of shop was
not disputed. Shop
was discovered on the
basis of disclosure
statement. @Para 324,
325
Testimony of PW48
established that wall
clock was purchased
from the shop and
A5&A6 led the police
team to the shop from
where they have
purchased the wall
clock. @Para 329
Pointing out
shop of Unique
Agencies by A3 &
A5
30 Proved
Testimony of PW31,
PW36 and PW39
remain unchallenged.
The pointing out
memo Ex. PW-31/M
proved. @para 331-
333
A3 & A5 led the police
party to the shop of
PW54 and offered no
explanation for visiting
the shop for
purchasing gas
cylinder. @para332
PW54 deposed that A3
and A5 had purchased
the cylinder form him.
However, he could
identify the accused in
the Court and was
declared hostile.
Not Proved
HC reversed the
finding on the
ground that PW54
did not identify
the accused. He
also denied that
A3 had gone to
his shop. The gas
cylinder recovered
from A3’s
residence was not
shown to PW54.
No TIP was
conducted. @para
173
28
@para334
PW54 admitted that
his statement was
recorded by Police and
admitted his
signatures on pointing
out memo. @para336
Testimony of PW54
remains unrebutted.
@para 337
Pointing out of
shop by A3 & A5
from where
duplicate key
was got prepared
31 Proved
PW31 & PW39
remains unchallenged.
The pointing out
memo Ex. PW-31/J
proved. @para339-340
Testimony of PW64
who admitted having
prepared the duplicate
key. @ para 341
PW64 declared hostile
and he admitted his
signatures on the
pointing out memo. @
para 342
Both A3 & A5 led the
Police team to the
shop of PW64. Only in
pursuance of their
disclosure statements,
the fact of presence of
PW64 at a footpath
was discovered.
@para342
Not believed
Trial Court had
earlier rejected the
recovery of the
key and with
respect to PW64’s
statement, it had
said that the key
was not shown to
him.
Therefore, holding
in one part of the
judgment that the
prosecution had
not proved its
allegation, and
concluding to the
contrary while
summing-up the
incriminating
evidence against
the accused, is
not supportable.
@ Para 178-180,
192
Pointing out
shop where
solder was
purchased by A3
& A5
32 Proved
Testimony of PW31
and PW39 remained
unchallenged. @para
344-345
The pointing out
memo Ex. PW-31/K
was proved. @para
344-345
PW-58 turned hostile.
Not Proved
HC reversed the
findings on the
ground that PW58
could not identify
the accused and
further that he
could not identify
any special
feature/make of
the soldering iron
recovered from
residence of A3.
29
PW58 identifies A3 but
could not identify A5.
@para346, 347
Accused could not
explain how and for
what purpose they
happened to purchase
soldering iron and
solder from the shop.
@para350
It was A-3 or A-5 who
led the police party to
this shop. The
existence of the shop
has not been
controverted.
@para351
@para 176
House Search of
A9, A14 and A15
33 Not Proved & Not
incriminating
Not Discussed
Confessional
Statement of A9
before PW100,
CJM Jaipur
34 Proved
A9 carried RDX and
delivered at PW13’s
residence on
14.05.1996. @para360
A9 stayed at Satyam
Hotel. He named A5,
A6, A11 and A15 in
his confession.
@para360
He further stated that
A5 travelled to Delhi
from Kathmandu for
making arrangements
for bomb blast.
@para360
He also informed
about the failed
attempt on
19.05.1996.Thereafter,
the glitch was rectified
and blast executed on
21.05.1996. @para360
PW 100 (ACJM Jaipur)
Proved
A9 was given time
to think and
thereafter his
statement was
recorded on
19.07.1996.
A9 never retracted
his 164
confession.
A9 provided a
detail account of
the role played by
other accused
persons.
A9’s confession
also corroborated
by his stay at
Satyam Hotel.
@Para 226
Although PW 13 &
PW14 turned
hostile,
nonetheless the
place where PW
13 lived is a
established fact
30
made sure that A9 is
giving statement
voluntarily. @para359
Notwithstanding that
PW13 & PW14 turned
hostile, they being
found at the address
disclosed by A9 and
thereafter their 161
statements having led
to A3 completes the
chain to link A-9 and
A-3. @Para 364
since this fact was
not known to the
Police before the
confession. @
Para 223
Stay of A-9 at
Satyam Hotel,
New Delhi
35 Proved
PW 46 deposed that
A9 stayed at the Hotel.
@ Para 369
Proved
PW 46 identified
A9 and that he
had stayed at the
hotel on 14.05.
1996. @ Para223
A5’s Travel from
Kathmandu to
Delhi
36 Proved
PW 101 proved
recording of disclosure
statement of A-5(Ex.
PW 23/B) in which A-5
informed about his
travel to Kathmandu
for procuring articles
for bomb blast and
had met A-3. @Para
249
Also relied on
testimony of PW 67
(employee of Royal
Nepal Airline) to prove
this fact. @Para 380
A-5 failed to explain
the purpose of his visit
to Delhi, duration of
stay and place of
staying. @para381
Proved
HC confirmed the
finding. @Para
204
Proved by
testimony of PW
67 and passenger
list dt.
10.05.1996.
@Para202
Name of A5
mentioned in
statement of A9
u/s 164 which
gives details of
A5’s travel from
Kathmandu to
Delhi on
10.05.1996.
@para 203
CFSL Reports 37 Proved
CFSL confirmed that
the explosives
recovered from A-3’s
house and that used
in car bomb blast was
RDX. @para400
Not Discussed
Handwriting 38 Not Proved Not Discussed
31
Report No permission was
taken from concerned
Magistrate to seek
specimen handwriting
of A1 & A3. No
handwriting &
signatures were
obtained by I.O.
@para406
Use of Car in
Blast
39 Proved
PW8 deposed that car
belonged to him and it
was stolen in the
intervening night of
17/18.05.1996 &
stepney was also
identified by him.
@Para 407-414
Not Proved
HC set aside
conviction u/s
411 IPC
@para272
Arrest of A9 40 Proved
Sufficient evidence of
arrest on 01.06.1996
found. @Para 416
Unexplained stay of A-
9 and his associates at
Ahmedabad from
24.05.1996 to
01.06.1996. @Para
416
Proved
Testimonies of PW
98 and PW 99
confirming the
arrest of A-9 and
A10 on
01.06.1996.
@para 216
A-9 made
disclosure
statement on
same day of
arrest. (Ex.
PW99/B) @ para
40
Allegations of
illegal
confinement has
no force. @ para
216
Arrest of A10 41 Nothing incriminati-
ng against A10
@para433
Not Discussed
Sanction 42 Proved Not Discussed
Recoveries at the
Instance of A5,
A6 & A7 at
Srinagar
43 Not Proved Not Discussed
Telephone Calls
from A5 to A7
44 Not Proved
Failed to prove beyond
reasonable doubt.
@para456-457
Not Discussed
32
12.On the basis of the above circumstances, the conclusion qua
each of the accused with which we are concerned, can be
summarised as under :
Trial Court
Accused No.3, Mohd. Naushad: [Para 643]
On analysis of circumstance numbers 9, 10, 23, 26, 30, 31,
32 and 46 and in the absence of any evidence to the
contrary, the prosecution has proved beyond reasonable
doubt that A3, along with his associates, not only hatched a
criminal conspiracy to cause bomb blast at Lajpat Nagar
but also actively participated in procurement of materials to
execute the plan. In his statement under Section 313
Cr.P.C, he failed to justify the incriminating circumstances
appearing against him. He failed to show, much less prove,
that he was lifted from his house on the intervening night
of 28/29.05.96 and falsely implicated in this case on
14.06.96. Thus, prosecution established commission of
offence under Section 302, 307, 436, 411 and 120B of the
IPC and Section 5 of Explosives Act.
Accused No. 5, Mirza Nissar Hussain @ Naza: [Para 652]
Confessional statement of A9, lead to the discovery of fact of
this accused travelling to Delhi from Kathmandu; and his
33
further disclosure statement lead to a discovery of fact
pointing out the shop for purchase of wall clock; pointing
out of ‘Dulhan Dupatta’ shop, where the vehicle was parked
on the day of unsuccessful attempt; pointing out the shop
from where battery was purchased; identification of shop
from where solder was purchased; and identification of
shop from where wire got soldered, proved the active role
played by A5 in the incident. Significantly, he did not
adduce any evidence to falsify the incriminating
circumstances against him and failed to explain as to how
A9, his associate, revealed his role in the incident. Thus,
prosecution fully established commission of offence under
Section 302, 307, 436, 411 and 120B of the IPC.
Accused No. 6, Mohd. Ali Bhatt @ Killey: [Para 583]
The role of A6 is akin to most of the circumstances to that
of A5. Circumstances proved on record by the prosecution
establish his involvement in the criminal conspiracy and
his active participation in the commission of the incident.
He travelled from Nepal to Delhi for the execution of the
plan. His name finds mention in the confessional statement
of A9. He also procured articles for preparation of the
explosives along with A3 and A5. He made elaborate
34
arrangements to procure the articles and took various steps
for execution of the plan. He could not explain the
incriminating circumstances appearing against him in his
statement recorded under Section 313 Cr.P.C. Thus,
prosecution fully established commission of offence under
Section 302, 307, 436, 411 and 120B of the IPC.
Accused No. 9, Javed Ahmed Khan: [Para 660]
A9 failed to prove that confessional statement Ex.PW100/A
was not made by him or that it was retracted at any stage.
He also failed to explain his presence in Delhi where he
stayed at Satyam Hotel. He was a party to the conspiracy.
Thus, prosecution fully established against him the
commission of offence under Section 302, 307, 436 and
120B of the IPC.
High Court
13.Vide judgment and order dated 22.11.2012, the High Court
upheld convictions of A3 & A9. However, conviction of A3
under Section 411 Indian Penal Code (‘IPC) was set aside.
The conviction of A5 and A6 was set aside on all counts.
Accused No. 3: Out of the ten circumstances alleged
against A3, his arrest from New Delhi Railway Station and
recovery of explosives from his residence stands proved.
35
[Para 253] These circumstances, in the opinion of the
Court, are sufficient to uphold the conviction under Section
5 of the Explosive Substances Act.
Though, there is no direct evidence forthcoming about
A3’s role in the blast, yet the circumstances proven are
sufficient to establish that he was a conspirator, who
intended to aid the charged offence(s). The recovery of lethal
explosives from his residence, similar to the kind which
resulted in the explosion at Lajpat Nagar, was not explained
by him. [Para 266]
Accused No. 5: The only circumstance held to have been
proved was his travel from Kathmandu to Delhi, is in no
manner advancing the case of the prosecution. None of the
other circumstances stand proven.
Accused No.6: None of the circumstances alleged against
A6 have been held to be proved against him. [Para 253]
Accused No. 9: Confessional Statement of A9, his stay at
Satyam Hotel and his arrest, are found to be proved, hence
his conviction is sustainable.
Issue of Sentence: [Para 272]
36
Accused No. 3: The case would not fall in the category of
rarest of rare cases and the award of extreme penalty of
sentence to death cannot be confirmed. A3 is thus
sentenced to undergo imprisonment for life for the offence
punishable under Section 120B read with Section 302 IPC.
Sentences under other offences (except under Section 411
for which he has been acquitted) are upheld.
Accused No.9: The conviction and sentences as against A9
are sustained.
Submissions of Counsels
Submissions on behalf of A3 - Mohd. Naushad
14.Mr. Siddharth Dave, Senior Advocate appearing on behalf of
A3, placed the following submissions before this Court:
14.1Starting point of the Prosecution case:
The prosecution’s version of Police obtaining a breakthrough
with the arrest of A9, on 01.06.1996, at Ahmedabad, in
another case being FIR No.12/1996 is incorrect. From the
deposition of PW101, Inspector Paras Nath, it is evident that
the starting point of the investigation was the arrest of A1
and A2 on 24.05.1996 by the Jammu and Kashmir Police as
37
A1 in his disclosure statement had taken responsibility of
the Lajpat Nagar bomb blast.
14.2A conviction based on circumstantial evidence, required
each and every link of the chain to be clearly
established by reliable and clinching evidence:
The link between A9 and the alleged crime is the alleged
statement of PW13, of being handed over RDX. Even
though PW13 ought to have been arrayed as an accused,
being an accomplice, yet he and his sister PW14 did not
support the prosecution during trial.
Therefore, the prosecution has failed to establish the basic
and primary facts as to show how A3 was one of the
conspirators of the crime.
14.3Confession of A9 cannot be used against himself :
The confession of A9, Ex.PW100/A recorded before
Additional Chief Judicial Magistrate, Jaipur (PW100), in
another criminal case registered and tried in Jaipur has no
connection with the blast at Lajpat Nagar, New Delhi, and
cannot be relied upon as an incriminating circumstance in
view of the Constitution Bench judgment in Hari Charan
Kurmi & Jogia Hjam v. State of Bihar 1964 (6) SCR 623 .
Furthermore, A9 neither names A3 nor attributes any role
towards him in the commission of the offence. Hence, the
confession of a co-accused can only be used in support of
38
other evidence and cannot be made the foundation of a
conviction.
14.4All the links of the chain were not established by the
Prosecution thus further snapping the chain of
circumstantial evidence:
It is submitted that against A3, 20 circumstances were laid
by the prosecution before the Trial Court, out of which only
10 were proved. Further, in appeal the High Court held only
2 circumstances to be proved: (1) Arrest of A3 on
14.06.1996 from New Delhi Railway Station; and (2)
Recovery of Explosives from his residence. Thus, not only
has the chain of circumstances snapped but there is no
basis for maintaining conviction, as arrest cannot be used
as an incriminating circumstance and mere recovery
without any evidence linking the same to the crime, cannot
be a circumstance to convict an accused.
Reliance is placed on Ram Singh v. Sonia & Ors,
(2007) 3 SCC 1; Dharam Das Wadhwani v. State of Uttar
Pradesh, (1974) 3 SCR 607 and Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116.
14.5Prosecution has failed to prove the arrest of A3:
It is submitted that the first circumstance in the chain qua
A3 is his arrest along with Accused No.4 on 14.06.1996
39
from Platform No.4, New Delhi Railway Station. This
circumstance is not proved, as the secret informer who
passed an information of this travel to PW101 - Paras Nath,
was not examined by the prosecution and PW16 has not
supported the prosecution on this issue.
It is further submitted that, in fact, A3 was arrested on
the intervening night of 28
th
/29
th
May at 3:30AM from his
residence. His neighbours PW12 - Ikram and PW92 – Abdul
Samad prove such fact. Also DW1- Mukesh, Section Officer,
NHRC, and DW2 - Arun Kumar have established that on
03.06.1996 father of A3 had lodged a complaint with
various authorities including the NHRC pertaining to the
illegal detention of his son, which fact stands ignored by the
courts below. There is no independent witness to
corroborate the alleged arrest of A3, despite the place being
a crowded railway platform where independent witnesses
were readily available.
A4 - Mirza Iftqar Hussain alias Saba, who was
allegedly arrested along with A3 on 14.06.1996 and at
whose behest certain recoveries were made, stands
acquitted by the Trial Court. Since such an acquittal
40
remains unchallenged and the role of both of them being at
par, A3 also ought to be acquitted.
14.6Recovery of explosives from the residence of A3 cannot
be the sole basis of conviction:
It is submitted that PW92, who is the sole independent
witness to the recovery of the explosives on 15.06.1996 from
the residence of A3, has not supported the prosecution
case. Furthermore, as per the prosecution case, if A9 had
made a disclosure statement on 02.06.1996, which was
followed by the subsequent statement of PW13, the Police
has not explained the unexplained delay in conducting a
raid for seizing any incriminating article.
Reliance is placed on the judgment of this Court in
Abdulwahab Abdulmajid Balochi v. State of Gujarat,
(2009) 11 SC 625 to state that the recovery of explosives
from A3’s residence by itself cannot be the sole premises on
which a judgment of conviction under Section 302 IPC could
be recorded.
14.7Circumstance of pointing out (Discovery of fact) is
inadmissible under Section 27 of the Indian Evidence
Act:
It has been submitted that before the arrest of A3 on
14.06.1996, the investigating agency was already aware of
the place where the bomb was planted and where the blast
41
had taken place. In such a situation, the pointing out
(Discovery of fact) of several shops by A3 from where he had
allegedly purchased a drill machine, gas cylinders, soldering
iron, araldite tubes, wires and duplicate car keys is not a
special knowledge acquired by the Police by the factum of
pointing out.
Furthermore, the information furnished by A3 does
not fall within the meaning of Section 27, since it does not
constitute information through which discovery was made,
especially when independent witnesses to the pointing out
memo(s) (PW33 - Mohd. Aslam, PW61 - Sumit Kumar, PW54
- Mehmood Kamal, PW64 - Mohd. Rizwan and PW58 -
Jitendra Pal Singh) have not supported the prosecution
case. Hence, such an evidence cannot be relied upon for
conviction [Himachal Pradesh Administration v. Shri Om
Prakash, (1972) 1 SCC 249].
14.8Disclosure statement of A3 is inadmissible under
Section 27 of the Indian Evidence Act:
It has been submitted that the information with respect to
the facts discovered were already within the knowledge of
the Police, thus, it cannot be held that the information
supplied by A3 is the direct and immediate cause of the
42
discovery. Reference is made to the judgment of this Court
in Pulukuri Kotayya & Others v. King-Emperor (1946)
SCC Online PC 47.
In any event, alleged disclosure statement
(Exh.PW31/B) is an extract of A3’s statement recorded by
the Police under Section 161 Cr.P.C. and not an evidence of
the prosecution. Reference is made to judgment of this
Court in Venkatesh Alias Chandra & Anr. v. State of
Karnataka, 2022 SCC Online SC 765 .
14.9There is no direct evidence forthcoming about A3’s role
in the alleged bomb blast incident:
The case of prosecution is that the Maruti Car belonging to
PW8 - Atul Nath was stolen and used in the bomb blast at
Lajpat Nagar. However, this circumstance, particularly
pointing out the place near House No. 134, Gali No. 21,
Zakir Nagar, Delhi, where the said car was allegedly parked
by A3, A5 and A6, has been disbelieved by the Trial Court.
PW8 has also not supported the case of the prosecution.
Pertinently, the High Court has set aside the conviction of
A3 under Section 411 IPC and thereby disbelieved the
prosecution case of A3 being in receipt of the stolen
43
property. Therefore, there is no evidence to link A3 to the
alleged offence.
14.10 Caution while dealing with a case based on
circumstantial evidence:
Learned Senior Counsel seeks reliance on the following
extracted portion of the judgment in Hanumant v. State of
M.P., (1952) SCR 1091 (2-Judge Bench) :
“In such cases, there is always the danger that
conjecture or suspicion may take the place of legal
proof and therefore it is right to recall the warning
addressed by Baron Alderson, to the jury in Reg v.
Hodge ((1838) 2 Lew. 227), where he said:-
"The mind was apt to take a pleasure in
adapting circumstances to one another, and
even in straining them a little, if need be, to
force them to form parts of one connected whole;
and the more ingenious the mind of the
individual, the more likely was it, considering
such matters to overreach and mislead itself, to
supply some little link that is wanting, to take
for granted some fact consistent with its
previous theories and necessary to render them
complete. ……..”
and in Hari Charan Kurmi v. State of Bihar, (1964) 6 SCR
623 :
“As we have already indicated, it has been a
recognised principle of the administration of criminal
law in this country for over half a century that the
confession of a co-accused person cannot be treated
as substantive evidence and can be pressed into
service only when the court is inclined to accept other
evidence and feels the necessity of seeking for
assurance in support of its conclusion deducible,
from the said evidence. In criminal trials, there is no
scope for applying the principle of moral conviction or
grave suspicion. In criminal cases where the other
44
evidence adduced against an accused person is wholly
unsatisfactory and the prosecution seeks to rely on
the confession of a co-accused person, the
presumption of innocence which is the basis of
criminal jurisprudence assists the accused person
and compels the Court to render the verdict that the
charge is not proved against him, and so, he is
entitled to the benefit of doubt. That is precisely what
has happened in these appeals.”
14.11 The present case does not fall in the category of
the rarest of rare cases to warrant the death penalty:
The Appellant has undergone 27 years of imprisonment out
of the sentence awarded to him. The occurrence of the
incident took place on 21.05.1996, that is about 27 years
ago. Therefore, in view of the reasons abovementioned,
death sentence cannot be imposed particularly in view that
the High Court while commuting the death sentence
awarded to A3 by the Trial Court has duly held that the
present case would not fall in the category of rarest of rare
cases.
Submissions on behalf of A9 - Javed Ahmed Khan
15.Ms. Kamini Jaiswal, Advocate, appearing on behalf of A9 has
placed the following submissions before this Court:
15.1It is submitted that the case of the prosecution is that
on 02.06.1996, ATS Ahmedabad, Gujarat, informed
45
Delhi Police about their apprehension of A9 and the
possibility of his involvement in the Lajpat Nagar blast
case. Thereafter, Inspector Ram Chander (PW91) along
with his staff reached Ahmedabad on 03.06.1996.
Contrary to this, PW91 in his statements states that
they reached Ahmedabad on 04.06.1996.
15.2On 15.06.1996, Rajasthan Police arrested A9 in
connection with FIR No.148/1996 registered under
Sections 302, 307, 427, 120B of IPC; Section 3 of
Prevention of Damage to Public Property Act, 1984 and
Section 4, 5 of Explosive Substances Act, 1908. This
FIR was in connection with an incident of blast, which
took place in Rajasthan Roadways Bus while it was on
the way from Mahwa towards Dausa, wherein 14 people
died and 37 were injured. It is in this case that the
alleged confessional statement, which the prosecution
herein seeks to rely upon, was recorded. A9 could not
have been convicted in the instant trial as he stood
acquitted on all counts in the case in which such a
statement was made.
46
15.3Further, there has been no confession of A9 in the
Lajpat Nagar bomb blast case.
Submissions on behalf of A5 and A6
16.Ms. Kamini Jaiswal, Advocate, also appearing on behalf of A5
and A6 submits that the High Court rightly acquitted both
the accused of all the charges, for none of the circumstances
alleged by the prosecution are proven against them beyond
reasonable doubt by leading cogent evidence, ocular or
documentary.
16.1Reliance is placed on the judgment of this Court in
Mousam Singha Roy v. State of West Bengal, (2003)
12 SCC 377 (2-Judge Bench) wherein it was observed
that it is a settled principle of criminal jurisprudence
that more serious the offence, stricter the degree of
proof, since a higher degree of assurance is required to
convict the accused.
16.2Further reliance is placed on the judgment of this Court
in Subramanya v. State of Karnataka, 2022 SCC
Online SC 1400 (2-Judge Bench) on the point that in
case of acquittal there is double presumption in favour
of the accused and that the judgment of acquittal can
47
only be set aside if it is perverse in the eyes on the
appellate court.
Submission on behalf of the State (NCT of Delhi)
17.On the other hand, relying upon the testimonies of the
prosecution witnesses, pointing out to the serious infirmities
and contradictions emanating from the opinion rendered by
the courts below, Mr. Sanjay Jain, learned Additional
Solicitor General, vehemently argues that it is a fit case for
intervention by this Court, since substantial errors of law
and substantial errors in appreciation of evidence are
discernible from the record which has resulted into grave
miscarriage of justice. The acquittal of A5 and A6, more so
in the light of conviction of A9, ex facie is erroneous and
contradictory if not perverse. In a case of this nature, when
an endeavour was made to destabilise the country, the Court
ought to have exercised its power with due care and caution
and considered the material in its entirety, rather than
deciding the issues in a perfunctory manner. Simply that
some of the independent prosecution witnesses have not
supported the prosecution, be it for whatever reason, cannot
be a ground for rejecting the otherwise inspiring testimonies
48
of the police officers who had no personal interest in falsely
implicating the accused in the crime in question.
Painstakingly, he took us through voluminous record and
handed over different notes termed as “Handouts”
(meticulously prepared by his team of young advocates)
pointing out how the prosecution was able to establish the
guilt of each one of the appellants beyond reasonable doubt.
The chain of events, to prove the guilt of the accused through
prosecution witnesses, as submitted by the learned
Additional Solicitor General, is referred in such Handouts.
Prosecution Witnesses
18.For establishing its case, the prosecution examined 107
witnesses, which are categorised for ease as follows:
1)Testimonies of witnesses who have deposed about the
occurrence of the blast on 21.6.1996:
PW1 Om Prakash Tawar; PW2 Rajender Kumar; PW3 Sushil
Kr. Madan; PW20 Saran Prabhakhar and PW73 Vishiv
Kumar.
2)Testimonies of witnesses who have deposed on
homicidal deaths and injuries suffered due to the blast :
PW10 Rakesh Kumar; PW15 Gajencer; PW29 Bhim Sen
Sethi; PW30 Naresh Kumar; PW37 Dr. Bajrang Lal Bansal;
PW47 Dr. Sanjeev Lalwani; PW51 Dr. Sunil Kumar Sharma;
49
PW53 Dr. Sudhir Gupta; PW55 R. S. Kheda; PW56 Dr.
Naresh Sood; PW57 Dr. R. Ali; PW62 Yashpal Sethi; PW65
Anil Sood; PW69 Medical Technician Shankar Prasad; PW70
Dr. Alexander Khakha; PW71 Dr. Chanderekan; PW72
Dinesh Kumar; PW75 Jai Prakash (Record Clerk); PW81
Ashwani Kumar and PW89 Ram Charan.
3)Testimonies of witnesses who have deposed on the loss
of property as a result of the blast :
PW4 N.P. Chauhan; PW7 Upesh Aggarwal; PW21 Subhash
Chand; PW72 Dinesh Kumar and PW84 Sandeep Arora.
4)Testimonies of witnesses who allegedly received phone
calls from persons claiming responsibility for the blast :
PW68 Zee News Editor, PW74 Amitabh Rai Chaudary and
PW90 Suparna Singh from NDTV.
5)Testimonies of police officers proving several facts :
PW5 HC Hari Ram (Recorded FIR); PW9 Inspector Rajender
Prasad; PW16 Inspector Rajender Gautam; PW17 Sub
Inspector Sanjay Kumar; PW18 Inspector Pawan Kumar;
PW19 Inspector Prem Bhallah Dhayani; PW23 Inspector
Puran Singh, PW24 Sub-Inspector Hari Singh; PW25 S.I.
Vijay Singh; PW26 Inspector Kulbir Singh; PW28 S.I.
Rajbeer Singh; PW31 Inspector Surinder; PW34 S.I.
Harender Singh; PW36 Inspector Rajeshwar Kumar; PW 39
Inspector Hari Ram Malik; PW40 Sub-Inspector Baljeet
50
Singh; PW41 Inspector Suresh Chander; PW42 SI Banwari
Lal; PW43 Inspector Virender Singh; PW49 Inspector Jasvir
Malik; PW63 Ct. Anil Kumar; PW66 Ct. Surinder; PW78
Farooq Khan; PW91 Inspector Ram Chander; PW95 DSP
Shiv Kumar; PW98 DSP B.R. Patil; PW99 Inspector B.M.
Rajvanshi; PW101 Inspector Paras Nath and PW105 ACP
P.P. Singh.
6)Testimonies of CFSL/Balistic Examiners :
PW44 N.B. Verdhan; PW86 Rup Singh and PW93 HC Umrav
Singh.
7)Testimonies of hotel owners where accused persons had
allegedly stayed :
PW46 Rajan Arora; PW82 Daya Shanker Lal Gupta and
PW83 Vijay Kumar Gupta.
8)Testimonies of witnesses proving the recording of
disclosure of statements of accused A9 :
PW31 Inspector Surinder Kumar; PW100 Bhagwan Das
Addl. CJM Jaipur and PW101 Inspector Paras Nath.
9)Testimonies of witnesses relating to pointing out
(Discovery of fact) on 17.06.1996 :
PW8 Atul Nath; PW17 SI Sanjay Kumar; PW31 Inspector
Surinder Kumar; PW35 Raj Kumar and PW101 Inspector
Paras Nath.
10) Testimonies of witnesses relating to pointing out
(Discovery of fact) on 18.06.1996 :
51
PW11 Nafiz, PW31 Inspector Surinder Kumar; PW32 Mohd.
Naseem; PW33 Mohd. Aslam; PW39 Inspector Hari Ram
Malik; PW52 Mohd. Alam; PW61 Sumit Kumar and PW101
Inspector Paras Nath.
11) Testimonies of witnesses relating to pointing out
(Discovery of fact) on 19.06.1996 :
PW31 Inspector Surinder Kumar; PW36 Inspector
Rajeshwar Kumar; PW39 Inspector Hari Ram Malik; PW48
Parmod Kumar; PW50 Yogesh Kumar Gupta; PW52 Mohd.
Alam; PW54 Mahmood Karnul; PW58 Jitendra Pal Singh;
PW60 Rajesh Kumar and PW64 Mohd. Rizwan.
12) Testimonies of witnesses relating to pertinent
circumstances surrounding the accused persons :
PW 11 Nafiz (Neighbour of A3); PW 12 Ikram (Neighbour of
A3); PW13 Wajid; PW14 Pappi; PW76 Bishan Kumar
(Cleaner of PW8) and PW92 Abdul Samad.
Undisputed Facts
19.There are certain undisputed facts in the case at hand.
20.On 21.05.1996, at 6:30 PM, there was a bomb blast at
Central Market, Lajpat Nagar, New Delhi. PW1, PW2, PW3,
PW20 and PW73 are shopkeepers in Lajpat Nagar, who all
have deposed of hearing a loud blast at around 6:30 PM;
52
rushing to the spot of the blast, observing shops on fire; and
people having sustained injuries.
21.This blast resulted in the death of 13 persons and 38 persons
suffered injuries. PW30, PW62, PW65, PW72, and PW81
identified dead bodies of their family members who lost their
lives in the said bomb blast at Lajpat Nagar. PW37, PW47,
PW51, PW53, PW56, PW57, PW70 and PW71 are doctors who
conducted/verified the post-mortem reports of the deceased
persons. PW10, PW15 and PW29 deposed that they were
working in Lajpat Nagar at the time of the incident and
suffered injuries. PW69, PW75 and PW89 are persons who
were employed in AIIMS Hospital and assisted the above
doctors.
22.This incident on 21.05.1996 also resulted in loss of property
to the public. PW4, PW7, PW21, PW72 and PW84 verified the
widespread burning of shops and vehicles in Lajpat Nagar,
due to the blast.
23.Another proven fact is the confessional statement of A9
-Javed Ahmed Khan in another case i.e. FIR No.39/1996 P.S.
Gandhi Nagar, for the commission of offence under Sections
307, 427, 120B IPC; Section 3 of Explosive Substances Act
53
and Section 3 of Prevention of Damage to Public Property Act.
This confessional statement was recorded under Section 164
Cr.P.C. by an Additional Chief Judicial Magistrate, Jaipur,
namely Bhagwan Das (PW100) and has been verified in his
deposition before the Trial Court.
Brief Narration of Important Witnesses
24.We may now proceed to examine the testimonies of the
remaining 33 prosecution witnesses (30 out of 107 have been
discussed above), relevant to discuss the circumstances
surrounding the present four appellants.
24.1PW8 – Atul Nath deposed that he is the registered owner
of Maruti Car No.DL-2CF-5854. PW76 - Bishan, who used
to clean the same, informed the car was missing, as such
he filed a written Ex.PW8/A with the police. Even though
he states that nothing was recovered in his presence from
any person but when cross-examined, he categorically
admits recovery of the stepney (tyre) of his car vide memo
Ex.PW8/4 bearing his signature.
24.2PW11 - Nafiz in his deposition admits to have known A3,
as he was running a shop adjacent to his shop and denies
having any knowledge about the case or having made any
54
statement to the police and also having seen A3 on
14.05.1996 getting a hole drilled in a gas cylinder. Hence,
he deposed the police having brought A3 near his shop.
24.3PW13 Mohd. Wajid, is the person in whose house A9 had
delivered the bag full of RDX. In Court, the witness
denies having known anyone of the accused, be it A3, A5,
A6 or A9. He denies having known A4 and A5 for the last
5-6 years or having met anyone of the accused persons in
connection with the sale of shawls. He denies having any
relationship, be that of landlord-tenant or social/
matrimonial, with them. He denies anyone of the accused
having stayed in his house in connection with the crime.
Unrefutedly, he was confronted with his prior statement
made to the police, stating the aforesaid facts, which was
marked as Mark A in deposition. Also significantly, his
denial stands belied by the deposition of PW101, who
admits to have recorded the statement as made by this
witness and as put to him in his examination-in-chief,
marked as Ex.Mark A2. Here only we may record the
witness not to have deposed the truth for the
55
circumstances of the witness staying at Turkman Gate
was accepted by the courts below.
24.4The deposition of PW14 - Pappi is to similar effect and
lines as that of PW13.
24.5PW16 - Inspector Rajender Gautam in his deposition
states that on 14.06.1996, he joined the investigation with
Inspector Paras Nath, Inspector Suresh Chander and SI
Surender Verma. At around 6:30 PM, Inspector Paras
Nath received secret information that A3, involved in the
commission of this case, along with a Kashmiri youth,
would be going to Gorakhpur via Vaishali Express. The
police party reached New Delhi Railway Station where
they were joined by ACP P.P. Singh. At 7:30 PM, after
pointing out by an informer at Platform No. 4, A3 and A4
were arrested. Hence, in Court the witness was able to
correctly identify both of them.
Further, during interrogation A4 and A3 made
disclosure statements admitting their guilt marked as
Ex.PW16/C and Ex.PW16/D respectively, which bear his
signature. A3 and A4 also disclosed the names of their
associates including A5 - Naza, A9 - Javed and Riaz Mulla.
Even though, the witness was declared hostile but in his
56
cross-examination part, he admits that on 16.06.1996, A6
and A7 were arrested, and searched vide search memos vide
Ex.PW16/D and Ex.PW16/E which bear his signatures. He
further states that a Rs.2 note was recovered from A7, to be
used for collecting Rs.1 Lakh from one Mangal Chand from
Shalimar Bagh. A6 and A7 made disclosure statements
bearing his signatures vide Ex. PW16/H and Ex.PW16/I.
Accused A5 pointed out the shop bearing No.3/32 Bhogal
vide memo Ex.PW16/K to the effect that after the
unsuccessful bomb blast the said accused had
telephonically informed A7 at Kathmandu about the
unsuccessful bomb blast. Also A6 pointed out shop No. C-
1/59, Lajpat Nagar vide Ex.PW16/B which bears his
signature.
In his cross examination by the accused, he has
deposed of the circumstances pertaining to the arrest of A3.
Categorically he states that Inspector Paras Nath had
requested about 7/8 persons to join the investigation, but
none volunteered. He denies the factum of A3 being picked
up from his house by the police on the intervening night of
28/29.05.1996.
57
24.6PW17 - Sub Inspector Sanjay Kumar in his deposition
states that on 17.06.1996 he joined investigation of this
case along with Inspector Paras Nath by then A3, A5 and
A6 were already in the police custody. The said accused
accompanied the police party and pointed out (Discovery
of fact) the house belonging to A8 at Jangpura from where
stepney (tyre) of the car was recovered vide Ex.PW8/B
bearing his signature. This stepney (tyre) was identified by
PW8 and the Investigating Officer (‘IO’) prepared an
identification memo Ex.PW8/C, which also bears his
signature. Also a bag containing some documents and
clothes was recovered vide memo Ex.PW17/A.
After the investigation was finished at Jangpura,
Bhogal, they proceeded to Shalimar Bagh, where Raj
Kumar (independent witness) was added to the raiding
party. The police party along with A4 proceeded to the
place of Mangal Chand where with the handing over
currency note of Rs.2, Rs.1 lakh wrapped in a polythene
was given, which he referred to as the hawala money. The
currency notes were seized vide memo Ex.PW17/C, which
bears his signature.
58
Further on 27.06.1996 he, along with Inspector
Jagmal Singh, recovered explosives weighing 500gms, two
detonators and some other articles from the house of A6
vide Ex.PW/17F, which bears his signature. Also
recovered two IEDs from the house of A7 vide Ex.PW17G,
bearing his signature. From the residence of A5, they
recovered a hand grenade vide Ex.PW17/H, which also
bears his signature. He identified the accused in Court.
24.7PW23 - Inspector Puran Singh deposed that on
17.06.1996 he had gone to Mussoorie, where he arrested
A5 from Minerva Hotel and brought him to Delhi where,
under interrogation, he made a disclosure statement vide
Ex.PW23/B, which was also signed by him. Significantly
the witness denies having picked up the said accused
from Sanoli Borders at Nepal.
24.8PW31 Inspector Surinder Kumar has deposed that on
15.06.1996 he joined the investigation, and A3 took the
police party to his residence at Turkman Gate from where
two RDX slabs weighing 1kg 150gms; Jayco alarm time
piece with two wires coming out of it; one detonator with
wire; one iron solder; one screwdriver; two araldite tubes;
one gas cylinder and certain other articles were recovered
59
vide memo Ex.PW31/A, bearing his signature and also of
independent witness PW92 - Abdul Samad. Disclosure
statement of A3 recorded vide memo Ex.PW31/B also
bears his signatures. On 17.06.1996, A3 pointed out the
place from where he had purchased the gas cylinder; on
18.06.1996, A3, A5 and A6 took the police party to Raja
Number Plate, (maker of the duplicate number plate) at
Connaught Place; Deluxe Store in Meena Bazar from
where araldite tube was purchased; A cable shop named
Unistar Cable; and got recovered a drill machine from a
fan shop seized vide Ex. PW31/C, bearing his signature.
After pointing out memos were prepared, A3, A5 and
A6 took the police party to Nizamuddin, where one stepney
(tyre) was recovered from the residence of A8 as identified by
the owner of the car, PW8 - Atul. A8 was also arrested at
the time of this recovery. On 18.06.1996, the accused got
recovered the original front number plate of the stated
vehicle from a place known as Mehal Khander vide
Ex.PW31/D and the rear original number plate recovered
from the place opposite to Oberoi hotel vide Ex.PW31/E,
bearing his signatures.
60
On 18.06.1996, the accused also pointed out (got
identified): (i) the location where the stolen car was parked
at Zakir Nagar; (ii) the Dulhan Rangrej Shop where on
19.05.1996, they parked the car loaded with RDX but did
not explode due to weak battery; and (iii) the location where
they parked the car on the day of the blast.
On 19.06.1996, A5 and A6 pointed out (got identified):
(i) Ganesh Electronics where the 9 volt battery to be used in
the blast was purchased. The owner of this shop also
identified the accused persons; (ii) Vijay Electronics from
where the wires to fix the battery was purchased; (iii)
Imperial Gramaphone Company where Jayco alarm piece
was bought vide Bill Ex.PW31/G; (iv) Unique Agency where
the gas cylinder was purchased; and (v) The shop from
where duplicate key was got made (at Jama Masjid).
Pointing out memos, Ex.PW31/J, K, L, M, N, O, P, Q,
R, S, T and U of the above locations were recorded
separately with each one bearing his signatures. In court,
he identified each one of the seized articles as also its
respective place of recovery.
61
24.9PW32 - Mohd. Naseem [owner of shop where A3 and A5
allegedly purchased wire] who turned hostile denies that
A3 and A5 purchased a wire from his shop on 13.05.1996
and stated that police obtained his thumb impression on a
piece of paper but he is not aware of its contents.
(pg.1019)
24.10PW33 - Mohd. Aslam [shop owner from where allegedly
drill machine was purchased] is the owner of Unistar Fans
at Meena Bazar and admits to have known A3 as his
neighbour. Though, he denies A3 having made any
purchases from him, or the police recovered any bill book,
but admits recovery of a drilling machine. Though, he
denies having signed any recovery memo Ex.PW31/C but
does not specifically state, as the accused wants the Court
to believe, of the same being prepared as the paper
allegedly signed blank by him.
24.11PW39 - Inspector Hari Ram Malik was posted in the
Operation Cell, Lodi Colony, when A1 and A2 made their
disclosure statements, also bearing his signatures. He
joined the investigation on various dates including
14.06.1996 along with Inspector Suresh Chander,
Inspector Rajinder Gautam, SI Surinder Verma, SI
62
Virender Singh, SI Arvind Verma and Omkar Singh.
Effectively, rather he corroborates PW31 that he has
witnessed the arrest of A3 and A4 from New Delhi Railway
Station on 14.06.1996. Such version is on similar lines
as deposed by PW16. He also corroborates the factum of
A3 and A4 admitting their involvement in this case.
He corroborates the version of PW31 on pointing out
(Discovery of fact) of several locations by A3, A4 and A5 on
18.06.1996 & 19.06.1996.
He admits that no witness from the neighbouring
shops was joined during the pointing out proceedings, nor
was site plan prepared. Also no public witness was joined
at the time of the recovery of the number plates. However,
in view of his unrebutted testimony fully inspiring
confidence, such a fact would not render the investigation
to be flawed or in any manner weaken the prosecution
case.
24.12PW40 - Sub Inspector Baljit Singh stated that he
travelled to Gorakhpur on 18.06.1996. He obtained
photocopy of reservation chart of Saheed Express from
Gorakhpur to New Delhi dated 27.05.1996 (Ex.PW40/A),
63
bearing A3’s name. He then visited Gupta Hotel and
obtained photocopy of the visitors’ book (Ex.PW40/C).
On 28.06.1996 he again visited Gorakhpur for
recovery of visitors’ register from Gupta Hotel
(Ex.PW40/E) and Budha Hotel (Ex.PW40/F), where A3
had stayed. In his cross-examination he stated that he
had not obtained any evidence to show that Naushad got
reserved the ticket from Gorakhpur to New Delhi. He
further stated that he does not remember the DD
numbers of his visits to Gorakhpur. But then this fact
would not render the veracity of his statement to be in any
manner doubtful.
24.13PW41 Suresh Chander has deposed that on
15.06.1996, A3 took the police party to his residence. In
terms of disclosure statement Ex.PW31/B made by A3,
certain facts were discovered at his residence in terms of
recovery of incriminating material, i.e., (i) One bag
containing two RDX bricks, which, when weighed, were of
1 kg 150 gms. The same were sealed with the seal ‘PP’
and the packet (Pulanda) given No.1; (ii) One casio quartz
watch (Japan), which also was sealed and the packet
(Pulanda) marked as No.2; (iii) One bag containing iron
64
solder; wires of two colours; araldite tubes; screwdriver
and black colour wire; which was sealed and the packet
given No.3; (iv) One illumination detonator having two
wires which was sealed and the packet given No.4; and (v)
one green colour gas cylinder which also was sealed. The
recoveries were effected vide memo Ex.PW31/A. He
testified the signatures put both on the disclosure
statement as also on the memo of recoveries.
The sealed articles were opened and resealed in the
Court. The articles opened were testified to be the very
same which were sealed. Significantly, save and except for
the accused-A8, none had cross-examined the witness on
any issue. When we perused the cross-examination part
of the testimony of this witness, as conducted on behalf of
A8, we find the endeavour to impeach the credibility of the
witness was primarily on the ground of non-association of
independent witnesses. However, despite extensive cross-
examination running into four pages, we find the witness
to have stuck to the original version and that being:
different places where the search was conducted; the
factum of disclosure statement made by the accused;
65
places where search was conducted as a result thereof,
including Flat No.P-7, DDA Flats, Turkman Gate, Delhi; on
the asking of this accused and recovery of the
incriminating articles referred to in the earlier part of
testimonies. No doubt the witness admits not to have
associated any person from the neighbourhood but then a
reasonable explanation thereto is given by him that save
and except for one witness, namely, Abdul Samad (PW 92)
also a resident of Turkman Gate, none else volunteered to
join the investigation.
24.14PW43 - Inspector Virender Singh has deposed of his
visit to Satyam Hotel, Paharganj on 07.06.1996. However
effective his deposition is, as the factum of his visit to
Mussoorie along with PW23 when A5 was arrested and
brought to Delhi where his disclosure statement vide
Ex.PW23/B was recorded bearing his signatures.
24.15PW46 - Rajan Arora, the owner of Satyam Hotel,
Paharganj, categorically identified A9, who had stayed in
his hotel on 14.05.1996 along with one Nepalese boy for
one day in either room No.104 or 106.
24.16PW48 - Pramod Kumar was working as an employee at
the Imperial Gramophone Company in Chandni Chawk.
66
He admits to have sold one Jayco alarm wall clock for a
sum of Rs.182. This was approximately 8-9 years prior to
his deposition which was on 21.05.2004. He admits to
have issued receipt Ex.PW 48/A bearing his signatures.
No doubt this witness has not supported the prosecution
on the aspect of identification of anyone of the accused,
i.e., A5 and A6, who had allegedly purchased the said
clock but however, on the material aspect of the sale of the
clock he fully supports the prosecution, which version of
his stands fully corroborated with material fact by his
employer, namely, PW50 - Yogesh Kumar who identifies
the purchases of clock to be made by A5 and A6.
24.17PW50 - Yogesh Kumar Gupta, owner of Imperial
Gramophone Company has deposed that on 04.05.1996,
the Kashmiri looking boys had purchased Jayco wall clock
from his sales man Pramod. After a period of 20-22 days,
police had got identified such persons. In Court he admits
pointing memo, i.e., discovery of fact to have been signed
by him. His explanation in clearly not identifying A5 and
A6 is quite plausible for as explained by him, such
transaction took place several years prior to his
67
deposition. However, there is no categorical denial of
these persons having visited the shop for purchasing the
articles or having identified the place and the shop where
the police visited.
24.18PW52 - Mohd. Alam is the owner of Deluxe Store,
Jama Masjid and not supported the prosecution. He
states that 8-9 years ago, when some persons had
enquired about purchase of araldite, he answered that he
does not remember any specific instances as several
customers come to his shop. He further states that his
statement may have been recorded. In this cross-
examination by the public prosecution, he denies making
a statement to police which was read over to him marked
as Ex.PW52/A. He further denies pointing out of his shop
by A3 and A5 on 18.06.1996. He further denies that it is
not the case that he is unable to identify the accused due
to lapse of time.
24.19PW54 - Mahmood Karnul was running a gas agency,
namely, Unique Agencies. In his deposition he stated that
in 05.1996, two persons had come to his shop to
purchase gas cylinder from whom he took deposit of
Rs.290 and asked them to collect the cylinder the next
68
day. He further states that on 19.06.1996, police officials
came and took him to their office at Lodhi Colony. He
denies the accused to have purchased the same but
admits his signatures on the pointing out memo Ex.31/M.
24.20PW58 - Mr. Jitendra Pal Singh is the owner of Imperial
Sound and Services. He has deposed that two persons
had purchased one soldering iron and solder for a sum of
Rs.35. On 19.6.1996, the police visited his shop along
with two persons whose faces were muffled. The shop
was identified by them by way of pointing out memo
Ex.PW31/K which bears his signatures. Also, he
identified the articles sold by him. However, with regard
to the identification of the accused he categorically does
not deny that the two persons brought by the police were
the persons who had purchased the articles but in fact
states that “may be one of them” was A3.
24.21PW - 60 Rajesh Kumar is the owner of M/s. Ganesh
Electricals. In his deposition he categorically states that
on 29.05.1996 two persons had purchased 9 volt battery
make of ‘Entiser’ for a sum of Rs.95/-. On 19.06.1996 two
persons accompanied by the police party, identified his
shop and the place from where they had purchased the
69
battery. Ex.PW31/L is such identification memo which
bears his signatures. On account of passage of time, as
his deposition was recorded on 05.10.2004, he could not
specifically deny the two persons brought by the police to
be the one who had not purchased the batteries but in
fact admits having informed the police of one of them
being A5.
24.22PW - 61 Sumit Kumar is the owner of the shop named
as “Dulhan Dupatta” situated at Lajpat Nagar, Delhi in the
premises at D2D-35, Lajpat Nagar, Delhi. He admits that
one Saturday, in the afternoon, when 3-4 persons had
parked a white Maruti 800 car in front of his shop, he
objected and as such the vehicle was removed and parked
in front of the doctor’s shop. He remembered the
registration number of car to be 1895. Two days thereafter
he learnt that the bomb blast had taken place in the said
car. While he was away, the police party visited his shop
and made enquiry from his brother. Even though the
witness turned hostile and cross-examined by the public
prosecutor, however, from the cross-examination part of
his testimony it is evident that the accused accompanying
70
the police had identified his shop, being the place where
they had parked the vehicle, vide pointing out memo
Ex.PW31/R, which bears his signatures. He admits to
have correctly identified A3 with certainty and A5 with a
degree of little doubt; categorically he denies the identity
of third accused i.e. A6. Be that as it may, it is evident
from his testimony that he has raised objection for the
parking of the vehicle and the accused had quarrelled
with him. He further admits which version of his is
unrefuted that on 20.05.1996, the vehicle was found not
parked at the place where it was so done by the accused.
24.23PW64 - Mohd. Rizwan admits that few persons had
come to him for getting a car key made which he did. He
does not remember the exact date nor identify the said
persons on account of passage of time but on cross-
examination by the Public Prosecutor, he identifies his
signature on the pointing out memo Ex.PW31/J.
24.24PW - 67 Keshar Singh is an employee of Royal Nepal
Air Lines. He has categorically proved document
Ex.PW67/A, the passenger manifest indicating the name
of A5 who travelled from Kathmandu to Delhi on
10.05.1996.
71
24.25PW - 76 Bishan Kumar, was engaged by PW8 for
cleaning the car used in the bomb blast. He fully
corroborated the version of the car being stolen and on
17.05.1996 having noticed “the door” (cap) of the petrol
tank of the car missing.
24.26PW82 - Daya Shanker Lal Gupta is the owner of Hotel
where prior to his arrest A3 had stayed at Gorakhpur. He
deposed that on 18.06.1996, two police officers had taken
photocopies of his visitors’ book vide Ex.PW40/D bearing
his signatures. He testified that there is entry by the name
of A3 who had stayed in his hotel on 27.05.1996.
(pg.2093)
24.27PW83 - Vijay Kumar Manager of Gupta Hotel has
testified that A3 stayed at the hotel in Room No.14 on
27.05.1996.
24.28PW91 - Inspector Ram Chander in his deposition
stated that on 02.06.1996, information was received
through a TPT message (Ex.PW 91/A and 91/B) from ATS
Ahmedabad disclosing that some terrorists involved in the
bomb blast at Lajpat Nagar have been arrested at
Ahmedabad. He was sent to Ahmedabad for conducting
interrogation. He correctly identifies A9 and A10 in Court
72
on the date of his deposition. He further states that in his
interrogation A9 stated that he was given a military colour
bag containing RDX and detonators by A7 - Latif, which
he was asked to hand over to A5 - Naza at the residence of
PW13 at Turkman Gate, Delhi.
24.29PW - 92 Abdul Samad was examined by the
prosecution to prove recovery memo Ex.PW31/A recovered
from the residence of A3. However, in Court while not
supporting the prosecution on all counts he comes out
with a different version of the said accused being picked
up by the police in the intervening night of
28/29.05.1996. He comes out with a new version of the
recovery not being effected in his presence and “3-4 days
later” he was called to the police station Lodhi Road and
made to sign document Ex.PW31/A, which was partly
written, but contents thereof, not read out to him, as he is
not literate. Significantly, perhaps the finding that the
witness not to have deposed truthfully for helping his
neighbour, the Public Prosecutor extensively cross-
examined him. All the circumstances relating to the event
of search, seizure and recovery of the incriminating
73
material including RDX was put to the witness to which
he denied. Having perused the record, it is our view that
the apprehension of the learned Public Prosecutor is
fortified from the record itself for the document memo
Ex.PW31/A is signed and not thumb impressed and that
too in English language. Thus, his version that he is
illiterate is, ex-facie, false. That apart as already noticed
earlier, the witness who is examined in Court on
08.02.2005 remained silent for a period of 9 years. His
version of A3 being picked up as he wants the Court to
believe, is nowhere supported by anyone of the witnesses.
Equally, he did not take any steps informing any person of
such fact, thus rendering his own version to this effect to
be unbelievable.
24.30PW98 - B.R. Patil, DSP ATS Ahmedabad has deposed
that on suspicion he interrogated four persons who
disclosed their name as Asdullah, Rashid Ahmad, Javed
Khan and Juber Bhatt. Whereafter, he lodged report, for
he had knowledge that at least two persons, namely,
Asdullah and Rashid Ahmad, had come from Nepal to
Ahmedabad for causing bomb explosions. On arrest, he
74
recovered certain incriminating material from Asdullah
which was seized. The witness categorically identifies A9
and A10 to be amongst those whom he had interrogated
and arrested.
24.31PW99 - Inspector B.M. Rajvanshi deposed that he was
posted in Anti-Terrorist Squad at Ahmedabad, Gujarat. On
23.05.1996, he was ordered by DGP to enquire into
information received, of A10 and Rashid having entered
India from Kathmandu to perform blasts in Ahmedabad.
On 25.06.1996, SI Waghela and the police party were in
search for the above-mentioned persons and found one
relevant entry in the register of Anukul Guest House. They
left the hotel on 25.06.1996 and continued the search.
The police party found 4 suspicious persons near Rupali
Season and after enquiry they were brought to the ATS
Office, Ahmedabad. He conducted personal search and
received digital diary, suspicious literature etc, which were
seized by him on 01.06.1996.
During further investigation, A10 disclosed that
under the guise of Jammu and Kashmir Islamic Front, it
was planned in March/April 1996 to sabotage India and
A10 would supervise the same. Thereafter, A10 sent A9
75
with 8/9kgs of explosives to Delhi, who gave the same to
the sister of Wajid Kasai (PW13). A5 came from Nepal
and with his colleagues he committed one bomb blast in
Lajpat Nagar Market on 21.05.1996. PW99 further stated
that A10 and A9 both disclosed that they were involved
in the Lajpat Nagar blast case. Disclosure Statement of
A9 is marked as Ex.PW99/B and A10 is marked is
Ex.PW99/A.
24.32PW101 - Inspector Paras Nath is the main officer who
conducted the investigation. He was posted as an
Inspector in the Special Cell of the Delhi Police. In Court
he states that under the orders of the Commissioner of
Delhi Police the case was transferred from South District
to Special Cell, whereafter he took over the investigation.
Then custody of accused Farida Dar and Farooq Ahmed
was entrusted to him. On 2.6.1996, he was informed that
accused A9 - Javed Ahmed Khan and A10 - Abdul Gani
had made a disclosure statement and revealed certain
information to the police at Ahmedabad of having
delivered 8 kgs of RDX at the residence of one Wajid
Kasai, a resident of Turkman Gate, whereafter on making
76
inquiries he was able to trace the place where the RDX
was delivered. Soon in the presence of ACP, Wajid Kasai
was interrogated who informed that he knew A9 through
A3. Since the room of A3 was locked, the place was kept
under surveillance, waiting for the occupant to return.
On 14.6.1996, the police party arrested A3 from New
Delhi Railway Station, for, as per information, the said
accused was to board the train from New Delhi to
Gorakhpur. Under interrogation A3 made a disclosure
statement of having kept certain incriminating material at
his house which led to discovery of fact, i.e., identification
of the house, the place where A3 had kept the said
material and the recovery of the leftover articles for
preparing bomb. The articles were recovered vide memo
Ex.PW31/A pursuant to the disclosure statement
PW16/C/B. Pursuant to the information received, he
deputed two police parties - one to visit Gorakhpur and
another to visit Mussoorie for nabbing A6 and A7 from
Gorakhpur and A5 at the respective places. The said
accused persons were arrested and brought to Delhi,
whereafter all the accused made disclosure statements
77
narrating as to how they had planned and executed the
blast which had taken place at the Central Market Lajpat
Nagar on 21.5.1996. By that time police got aware that
RDX was carried for blast in Delhi by A9 from Kathmandu
to Delhi and all the accused persons had conspired to
carry out such blast. The preparation for the blast and
carrying out the same was brought to knowledge of the
police through the recovery and pointing out in the
following chain of circumstances :-
(i)Recovery of the stepney of the vehicle stolen by
the accused
In pursuance of the separate disclosure statements made
by A3, A5 and A6, the police party was led to premises
No.4/11, Second Floor, Double Storey, Jangpura, from
where one stepney of Maruti car came to be recovered
vide memo Ex.PW 8/B and Ex.PW 8/C and the owner of
the car PW8 was called and his signatures were taken at
point A of seizure memo. This house was residence of
A8. A8 also came to be arrested and made his disclosure
statement Ex.PW 17/I where he stated that stepney was
given by A5 and that the said stepney belonged to the car
in which bomb blast was carried out at Lajpat Nagar.
78
ii)Recovery of one lakh rupees from Mangal Chand
When A6 and A7 were arrested by Inspector Rajeshwar,
Rs.2 note was recovered from the possession of A7 and on
showing the said note, a sum of Rs.1 lakh had to be
delivered.
iii)Pointing out proceedings on 18 and 19.06.1996 by
A3, A5 and A6
a)Place where number plates were made, i.e., Raja Car
Number Plate situated at Yusuf Sarai Market, New
Delhi, vide identification memo Ex.PW 31/R.
b)Pointing out Deluxe Store, Jama Masjid, Delhi from
where purchase of araldite tubes had taken place,
vide identification memo Ex.PW 31/Q.
c)Vakil Cable Store situated at New Meena Bazar, Jama
Masjid, from where they had purchased two metre
yellow colour wire which was used for connecting
timer and detonator with battery, vide pointing out
memo Ex. PW 31/O.
d)A3 pointed out Unistar Fans and Refrigerator Shop at
Meena Bazar, Jama Masjid from where he had taken
drill machine to make holes in the cylinder, vide
pointing out memo Ex.PW 31/P. This drill machine
was seized vide seizure memo Ex.PW 31/C.
79
e)All accused pointed out road opposite A-51, East
Nizamuddin, New Delhi, stating that on 15.06.1996
they had stolen a petrol tank cap of Maruti car No.
DL 2CF 5854 for getting the duplicate key made and
further on 17-18.05.1996 they had stolen the above
Maruti car with the help of the said key, vide pointing
out memo Ex. PW 31/U.
f)All accused pointed out house No.134, Gali No.21,
Zakir Nagar, New Delhi stating that they had parked
the above-mentioned car at this place for several days
for the blast, vide pointing out memo Ex.PW 31/S.
g)All accused persons then pointed out Shop Dulhan
Dupatta at Central Market, Lajpat Nagar and stated
that they had parked the car with cylinder bomb at
the shop on 19.5.1996 but the bomb did not blast
due to weak battery, vide pointing out memo Ex.PW
31/R.
h)All accused persons pointed out the place near Lal
Mahal Khandar as the place where they had thrown
the actual front number plate of the vehicle. The
same was recovered bearing registration no. DL 2CF
80
5854 vide pointing out-cum-recovery memo
Ex.PW31/D.
i)All accused persons then pointed out a place under
Lodhi flyover from where the rear original number
plate of the Maruti car was recovered vide pointing
out-cum-recovery memo Ex. PW31/E.
j)All accused persons pointed out the place where
duplicate key was thrown after the successful blast,
i.e. behind bus stop Nizamuddin ITI. This key was
recovered and sealed vide pointing out-cum-recovery
memo Ex. PW31/F.
k)A5 and A6 pointed out the place of occurrence i.e.
Pushpa Market Lajpat Nagar near Fountain Park Car
Parking vide pointing out memo Ex.PW31/T.
On 26.06.1996, Inspector Jagmal Singh along with his
team took A5, A6 and A7 to Srinagar for further recovery and
returned on 30.06.1996. On 26.07.1996, A9 and A10 were
brought to Delhi and their disclosure statements were
recorded separately vide Ex.PW18/F and Ex.PW101/A. On
04.08.1996, A9 pointed out the Hotel where he along with his
associate stayed on 14.05.1996 vide pointing out memo
Ex.PW24/B.
81
A5 pointed out Shop No.3/32 situated at Bhogal, Delhi
and informed the police party that he had made a telephonic
call to A7 at Kathmandu on 19.5.1996 vide pointing out
memo Ex.PW 16/A. The witnesses had identified the articles
recovered by the police and proven on record, more
specifically recovered vide various memos.
The witness stood extensively cross-examined, however,
the endeavour was to impeach his credit, more so with
respect to A1 and A2, which is evident from the first four
pages of the cross-examination part of his testimony.
Significantly, on the issue of A3 being taken into custody
prior to 14.6.1996, the witness has withstood the test of
scrutiny, being cross-examined very extensively, for it not to
be so. Further, his credit is sought to be impeached by
inquiring questions as to why Mangal Chand and PW-13 were
not arrayed as accused to which his response is cogent and
clear for him to have passed on the information to the
appropriate authorities dealing with the relevant laws. No
doubt the witness attempts not to have obtained the opinion
of the experts as to whether the cylinder would have been
drilled or not but then this fact alone would not negate the
82
prosecution case for it is not a suggested case of the accused
that the blast carried out was not with the use of RDX, which
was not readily available in the market and which was, in
fact, used, as has come out in the testimony of the other
witnesses for making the bomb, if on the issue of the
material collected against the accused, pertaining to their
State and travelled at different places, stands duly proven by
this witness. Also, scientific evidence does establish party of
cylinder collected from the site to have traces of RDX.
24.33PW105 - ACP P.P. Singh was the in-charge of the
operation in Special Cell of Delhi Police at the relevant
point of time. As per his version, the investigation was
transferred to the Special Cell on 26.5.1996 and it is he
who entrusted the same to Paras Nath PW101.
24.34At this juncture, we may only reiterate that post-
recording of 313 statement of the accused, only A3
examined two witnesses, i.e, DW-1, namely, Mukesh, the
Section Officer of the Human Rights Commission, New
Delhi (pg.4015) and DW 2, namely, Arun Kumar Sharma,
Public Relation Officer, GPO, New Delhi.
83
The witnesses have deposed nothing save and except
for complaint purportedly written by the father of A3 sent
through an ordinary post to the Human Rights
Commission. Here only we may add that the witnesses, in
any manner, falsify the stand of the prosecution for neither
the father nor any other independent witnesses stand
examined proving the alleged letter purportedly written by
the father or the factum of the accused having been
illegally detained or arrested prior to 14.6.1996.
25.We must now examine the circumstances which the
prosecution seeks to rely on, to establish the guilt of the
Appellants herein.
Opinion of this Court
26.We now proceed to examine the various charges as
enumerated above faced by the accused person, namely
Mohd. Naushad (A3), Mirza Nissar Ahmed @Naza (A5), Mohd.
Ali Bhatt @ Killey (A6) and Javed Ahmed Khan (A9).
27.It is incumbent upon the prosecution to establish that the
accused persons agreed to do an illegal act or an act by illegal
means as part of the conspiracy and thereby caused the
84
death or attempted to cause the death of persons. Also, if the
accused person received or retained a stolen property, in this
case, the Maruti car; or if intentionally or knowingly caused
wrongful loss or damage to the public or any person by use of
fire or explosive substance.
28.The present case is based on circumstantial evidence.
29.Firstly, we proceed to examine the law on the issue of
Circumstantial Evidence.
30. A Constitution Bench of this Court in M.G. Agarwal v.
State of Maharashtra (1963) 2 SCR 405 (5-Judge Bench)
has observed as under:
“…It is a well-established rule in criminal jurisprudence
that circumstantial evidence can be reasonably made the
basis of an accused person's conviction if it is of such a
character that it is wholly inconsistent with the
innocence of the accused and is consistent only with his
guilt. If the circumstances proved in the case are
consistent either with the innocence of the accused or
with his guilt, then the accused is entitled to the benefit
of doubt. There is no doubt or dispute about this
position. But in applying this principle, it is necessary to
distinguish between facts which may be called primary
or basic on the one hand and inference of facts to be
drawn from them on the other. In regard to the proof of
basic or primary facts, the court has to judge the
evidence in the ordinary way, and in the appreciation of
evidence in respect of the proof of these basic or primary
facts there is no scope for the application of the doctrine
85
of benefit of doubt. The court considers the evidence and
decides whether that evidence proves a particular fact or
not. When it is held that a certain fact is proved, the
question arises whether that fact leads to the inference
of guilt of the accused person or not, and in dealing with
this aspect of the problem, the doctrine of benefit of
doubt would apply and an inference of guilt can be
drawn only if the proved fact is wholly inconsistent with
the innocence of the accused and is consistent only with
his guilt. It is in the light of this legal position that the
evidence in the present case has to be appreciated.”
31.Further, on the point of as to whether the accused persons
can be convicted or not on the basis of circumstantial
evidence is now evidently clear and we need not dilate on the
issue any further, save and except refer to the five golden
principles curled out by this Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116 (3-Judge
Bench) which must be fulfilled before a case against an
accused can be said to be fully established on circumstantial
evidence:
“(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency
(4) they should exclude every possible hypothesis except the
one to be proved, and
86
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability, the act must have been done by the
accused.”
[See also: Major Puran v. The State of Punjab AIR 1953
SC 459 (2 -Judge bench); Deonandan v. State of Bihar, AIR
1955 SC 801 (3-Judge bench); E.G. Barsay v. State of
Bombay AIR 1961 SC 1762 (2-Judge Bench); Bhagwan
Swarup v. State of Maharashtra AIR 1965 SC 652 (3-Judge
Bench); Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540
(3-Judge Bench); Firozuddin Basheeruddin & Ors. v. State
of Kerala, (2001) 7 SCC 596 (2-Judge Bench); Ram Singh
(supra)].
32.On this point, the judgment of this Court in Mohd. Arif v.
State (NCT of Delhi), (2011) 13 SCC 621, (2-Judge Bench),
is also of relevance, wherein it has been observed:
“190. There can be no dispute that in a case entirely
dependent on the circumstantial evidence, the
responsibility of the prosecution is more as compared to
the case where the ocular testimony or the direct
evidence, as the case may be, is available. The Court,
before relying on the circumstantial evidence and
convicting the accused thereby has to satisfy itself
completely that there is no other inference consistent
with the innocence of the accused possible nor is there
any plausible explanation. The Court must, therefore,
87
make up its mind about the inferences to be drawn from
each proved circumstance and should also consider the
cumulative effect thereof. In doing this, the Court has to
satisfy its conscience that it is not proceeding on the
imaginary inferences or its prejudices and that there
could be no other inference possible excepting the guilt
on the part of the accused.
191. …. At times, there may be only a few
circumstances available to reach a conclusion of the
guilt on the part of the accused and at times, even if
there are large numbers of circumstances proved, they
may not be enough to reach the conclusion of guilt on
the part of the accused. It is the quality of each
individual circumstance that is material and that would
essentially depend upon the quality of evidence. Fanciful
imagination in such cases has no place. Clear and
irrefutable logic would be an essential factor in arriving
at the verdict of guilt on the basis of the proven
circumstances.”
(emphasis supplied)
33.Since the prosecution case rests on discovery of facts, we
deem it appropriate to discuss the legal position.
34.What is the meaning of the expression ‘fact discovered’ under
Section 27 of the Indian Evidence Act has been settled by the
Privy Council in Kottaya v. Emperor AIR 1947 PC 67 (5-
Judge Bench), way back in the year 1947:
“The condition necessary to bring the section into
operation is that discovery of a fact in consequence
of information received from a person accused of any
offence in the custody of a Police Officer must be
deposed to, and thereupon so much of the
information as release distinctly to the fact thereby
discovered may be proved. The section seems to be
88
based on the view that if a fact is actually discovered
in consequence of information given, some guarantee
is afforded thereby that the information was true,
and accordingly can be safely allowed to be given in
evidence; but clearly the extent of the information
admissible must depend on the exact nature of the
fact discovered to which such information is required
to relate. ….
… fact discovered embraces the place from which the
object is produced and the knowledge of the accused
as to this, and the information given must relate
distinctly to this fact. Information as to the past user,
or the past history, of the object produced is not
related to its discovery in the setting in which it is
discovered. Information supplied by a person in
custody that “I will produce a knife concealed in the
roof of my house” does not lead to the discovery of a
knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been
used in the commission of the offence, the fact
discovered is very relevant. But if to the statement
words be added “with which I stabbed A” these words
are inadmissible since they do not relate to the
discovery of the knife in the house of the informant.”
(Emphasis supplied)
[See also: M.S. Commercial and Others v. Calicut
Engineering Works Ltd. (2004) 10 SCC 657 (2-Judge
Bench); Mohmed Inayatullah v. State of Maharashtra, AIR
1976 S.C. 483) (2-Judge Bench); K Chinnaswamy Reddy v.
State of Andhra Pradesh and Anr., AIR 1962 SC 1788, (3-
Judge Bench)]
89
35.Conspiracy being a major charge, we take note of the legal
position on the point of conspiracy between accused persons,
we place reliance on the judgment of this Court in Kehar
Singh & Ors. v. State (Delhi Administration), (1988) 3
SCC 609 (3- Judge Bench), wherein this Court observed:
“271. Before considering the other matters against
Balbir Singh, it will be useful to consider the concept of
criminal conspiracy under Sections 120-A and 120-B of
IPC. These provisions have brought the Law of
Conspiracy in India in line with the English law by
making the overt act unessential when the conspiracy is
to commit any punishable offence. The English law on
this matter is well settled. The following passage
from Russell on Crime (12th Edn., Vol. I, p. 202) may be
usefully noted:
“The gist of the offence of conspiracy then lies, not in
doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them,
nor in inciting others to do them, but in the forming
of the scheme or agreement between the parties.
Agreement is essential. Mere knowledge, or even
discussion, of the plan is not, per se, enough.”
272. Glanville Williams in the Criminal Law (2nd
Edn., p. 382) explains the proposition with an
illustration:
“The question arose in an Iowa case, but it was
discussed in terms of conspiracy rather than of
accessoryship. D, who had a grievance against
P, told E that if he would whip P someone
would pay his fine. E replied that he did not
want anyone to pay his fine, that he had a
grievance of his own against P and that he
would whip him at the first opportunity. E
whipped P. D was acquitted of conspiracy
90
because there was no agreement for ‘concert of
action’, no agreement to ‘co-operate’.”
273. Coleridge, J., while summing up the case to jury
in Regina v. Murphy [173 ER 508] (173 Eng. Reports
508) pertinently states:
“I am bound to tell you, that although the
common design is the root of the charge, it is
not necessary to prove that these two parties
came together and actually agreed in terms to
have this common design and to pursue it by
common means, and so to carry it into
execution. This is not necessary, because in
many cases of the most clearly established
conspiracies there are no means of proving any
such thing, and neither law nor common sense
requires that it should be proved. If you find
that these two persons pursued by their acts
the same object, often by the same means, one
performing one part of an act, so as to
complete it, with a view to the attainment of
the object which they were pursuing, you will
be at liberty to draw the conclusion that they
have been engaged in a conspiracy to effect that
object. The question you have to ask yourselves
is, ‘Had they this common design, and did they
pursue it by these common means — the
design being unlawful?’ ”
274. It will be thus seen that the most important
ingredient of the offence of conspiracy is the
agreement between two or more persons to do an
illegal act. The illegal act may or may not be done in
pursuance of agreement, but the very agreement is
an offence and is punishable. Reference to Sections
120-A and 120-B IPC would make these aspects clear
beyond doubt. Entering into an agreement by two or
more persons to do an illegal act or legal act by illegal
means is the very quintessence of the offence of
conspiracy.
275. Generally, a conspiracy is hatched in secrecy
and it may be difficult to adduce direct evidence of
91
the same. The prosecution will often rely on evidence
of acts of various parties to infer that they were done
in reference to their common intention. The
prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or
circumstantial. But the court must enquire whether
the two persons are independently pursuing the same
end or they have come together in the pursuit of the
unlawful object. The former does not render them
conspirators, but the latter does. It is, however,
essential that the offence of conspiracy requires some
kind of physical manifestation of agreement. The
express agreement, however, need not be proved. Nor
actual meeting of two persons is necessary. Nor it is
necessary to prove the actual words of
communication. The evidence as to transmission of
thoughts sharing the unlawful design may be
sufficient. Gerald Orchard of University of
Canterbury, New Zealand explains the limited nature
of this proposition: [1974 Criminal Law Review 297,
299]
“Although it is not in doubt that the offence
requires some physical manifestation of
agreement, it is important to note the limited
nature of this proposition. The law does not
require that the act of agreement take any
particular form and the fact of agreement may
be communicated by words or conduct. Thus,
it has been said that it is unnecessary to prove
that the parties ‘actually came together and
agreed in terms’ to pursue the unlawful object;
there need never have been an express verbal
agreement, it being sufficient that there was ‘a
tacit understanding between conspirators as to
what should be done’.”
276. I share this opinion, but hasten to add that the
relative acts or conduct of the parties must be
conscientious and clear to mark their concurrence as
to what should be done. The concurrence cannot be
inferred by a group of irrelevant facts artfully
arranged so as to give an appearance of coherence.
92
The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict. We
must thus be strictly on our guard.
277. It is suggested that in view of Section 10 of the
Evidence Act, the relevancy of evidence in proof of
conspiracy in India is wider in scope than that in
English law. Section 10 of the Evidence Act
introduced the doctrine of agency and if the
conditions laid down therein are satisfied, the acts
done by one are admissible against the co-
conspirators. Section 10 reads:
“10. Where there is reasonable ground to
believe that two or more persons have
conspired together to commit an offence or an
actionable wrong, anything said, done or
written by any one of such persons in reference
to their common intention, after the time when
such intention was first entertained by any one
of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well for
the purpose of proving the existence of the
conspiracy as for the purpose of showing that
any such person was a party to it.”
xxxx
280. The decision of the Privy Council in Mirza Akbar
case [AIR 1940 PC 176, 180] has been referred to
with approval in Sardul Singh Caveeshar v. State of
Bombay [(1958) SCR 161, 193] where
Jagannadhadas, J., said: (SCR p. 193)
“The limits of the admissibility of evidence in
conspiracy cases under Section 10 of the
Evidence Act have been authoritatively laid
down by the Privy Council in Mirza
Akbar v. King Emperor [AIR 1940 PC 176,
180] . In that case, Their Lordships of the Privy
Council held that Section 10 of the Evidence
Act must be construed in accordance with the
principle that the thing done, written or
93
spoken, was something done in carrying out
the conspiracy and was receivable as a step in
the proof of the conspiracy. They notice that
evidence receivable under Section 10 of the
Evidence Act of ‘anything said, done, or
written, by any one of such persons’ (i.e.,
conspirators) must be ‘in reference to their
common intention’. But Their Lordships held
that in the context (notwithstanding the
amplitude of the above phrase) the words
therein are not capable of being widely
construed having regard to the well known
principle above enunciated.”
(Emphasis supplied)
36.Furthermore, in State through Superintendent of Police,
CBI/SIT v. Nalini & Ors. (1999) 5 SCC 253 (3-Judge
bench), this Court culled out principles governing the law of
conspiracy, though exhaustive in nature, and held:
“581. It is true that provision as contained in Section
10 is a departure from the rule of hearsay evidence.
There can be two objections to the admissibility of
evidence under Section 10 and they are (1) the
conspirator whose evidence is sought to be admitted
against the co-conspirator is not confronted or cross-
examined in court by the co-conspirator and (2)
prosecution merely proves the existence of
reasonable ground to believe that two or more
persons have conspired to commit an offence and
that brings into operation the existence of agency
relationship to implicate co-conspirator. But then
precisely under Section 10 of the Evidence Act,
statement of a conspirator is admissible against a co-
conspirator on the premise that this relationship
exists. Prosecution, no doubt, has to produce
independent evidence as to the existence of the
conspiracy for Section 10 to operate but it need not
94
prove the same beyond a reasonable doubt. Criminal
conspiracy is a partnership in agreement and there
is in each conspiracy a joint or mutual agency for the
execution of a common object which is an offence or
an actionable wrong. When two or more persons
enter into a conspiracy any act done by any one of
them pursuant to the agreement is, in contemplation
of law, the act of each of them and they are jointly
responsible therefor. This means that everything
said, written or done by any of the conspirators in
execution of or in reference to their common
intention is deemed to have been said, done or
written by each of them. A conspirator is not,
however, responsible for acts done by a conspirator
after the termination of the conspiracy as aforesaid.
The court is, however, to guard itself against readily
accepting the statement of a conspirator against a
co-conspirator. Section 10 is a special provision in
order to deal with dangerous criminal combinations.
Normal rule of evidence that prevents the statement
of one co-accused being used against another under
Section 30 of the Evidence Act does not apply in the
trial of conspiracy in view of Section 10 of that Act.
When we say that court has to guard itself against
readily accepting the statement of a conspirator
against a co-conspirator what we mean is that court
looks for some corroboration to be on the safe side. It
is not a rule of law but a rule of prudence bordering
on law. All said and done, ultimately it is the
appreciation of evidence on which the court has to
embark.
582. In Bhagwandas Keshwani v. State of
Rajasthan [(1974) 4 SCC 611, 613 : 1974 SCC (Cri)
647] (SCC at p. 613), this Court said that in cases of
conspiracy better evidence than acts and statements
of co-conspirators in pursuance of the conspiracy is
hardly ever available.
583. Some of the broad principles governing the law
of conspiracy may be summarized though, as the
name implies, a summary cannot be exhaustive of
the principles.
95
1. Under Section 120-A IPC offence of criminal
conspiracy is committed when two or more persons
agree to do or cause to be done an illegal act or legal
act by illegal means. When it is a legal act by illegal
means overt act is necessary. Offence of criminal
conspiracy is an exception to the general law where
intent alone does not constitute crime. It is intention
to commit crime and joining hands with persons
having the same intention. Not only the intention
but there has to be agreement to carry out the object
of the intention, which is an offence. The question for
consideration in a case is did all the accused have
the intention and did they agree that the crime be
committed. It would not be enough for the offence of
conspiracy when some of the accused merely
entertained a wish, howsoever horrendous it may be,
that offence be committed.
2. Acts subsequent to the achieving of the object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the object
of conspiracy has been achieved, any subsequent
act, which may be unlawful, would not make the
accused a part of the conspiracy like giving shelter to
an absconder.
3. Conspiracy is hatched in private or in secrecy. It is
rarely possible to establish a conspiracy by direct
evidence. Usually, both the existence of the
conspiracy and its objects have to be inferred from
the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a
chain – A enrolling B, B enrolling C, and so on; and
all will be members of a single conspiracy if they so
intend and agree, even though each member knows
only the person who enrolled him and the person
whom he enrols. There may be a kind of umbrella-
spoke enrolment, where a single person at the centre
does the enrolling and all the other members are
unknown to each other, though they know that there
are to be other members. These are theories and in
practice it may be difficult to tell which conspiracy in
96
a particular case falls into which category. It may
however, even overlap. But then there has to be
present mutual interest. Persons may be members of
single conspiracy even though each is ignorant of the
identity of many others who may have diverse roles
to play. It is not a part of the crime of conspiracy that
all the conspirators need to agree to play the same or
an active role.
5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making or
considering any plans for its commission, and
despite the fact that no step is taken by any such
person to carry out their common purpose, a crime
is committed by each and every one who joins in the
agreement. There has thus to be two conspirators
and there may be more than that. To prove the
charge of conspiracy it is not necessary that intended
crime was committed or not. If committed it may
further help prosecution to prove the charge of
conspiracy.
6. It is not necessary that all conspirators should
agree to the common purpose at the same time. They
may join with other conspirators at any time before
the consummation of the intended objective, and all
are equally responsible. What part each conspirator
is to play may not be known to everyone or the fact
as to when a conspirator joined the conspiracy and
when he left.
7. A charge of conspiracy may prejudice the accused
because it forces them into a joint trial and the court
may consider the entire mass of evidence against
every accused. Prosecution has to produce evidence
not only to show that each of the accused has
knowledge of the object of conspiracy but also of the
agreement. In the charge of conspiracy the court has
to guard itself against the danger of unfairness to the
accused. Introduction of evidence against some may
result in the conviction of all, which is to be avoided.
By means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other
97
substantive offence prosecution tries to implicate the
accused not only in the conspiracy itself but also in
the substantive crime of the alleged conspirators.
There is always difficulty in tracing the precise
contribution of each member of the conspiracy but
then there has to be cogent and convincing evidence
against each one of the accused charged with the
offence of conspiracy. As observed by Judge Learned
Hand “this distinction is important today when many
prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated in any
degree whatever with the main offenders”.
8. As stated above it is the unlawful agreement and
not its accomplishment, which is the gist or essence
of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no
agreement as to the means by which the purpose is
to be accomplished. It is the unlawful agreement
which is the gravamen of the crime of conspiracy.
The unlawful agreement which amounts to a
conspiracy need not be formal or express, but may
be inherent in and inferred from the circumstances,
especially declarations, acts and conduct of the
conspirators. The agreement need not be entered
into by all the parties to it at the same time, but may
be reached by successive actions evidencing their
joining of the conspiracy.
9. It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more
persons enter into a conspiracy, any act done by any
of them pursuant to the agreement is, in
contemplation of law, the act of each of them and
they are jointly responsible therefor. This means that
everything said, written or done by any of the
conspirators in execution or furtherance of the
common purpose is deemed to have been said, done
or written by each of them. And this joint
responsibility extends not only to what is done by
any of the conspirators pursuant to the original
agreement but also to collateral acts incidental to
98
and growing out of the original purpose. A
conspirator is not responsible, however, for acts done
by a co-conspirator after termination of the
conspiracy. The joinder of a conspiracy by a new
member does not create a new conspiracy nor does it
change the status of the other conspirators, and the
mere fact that conspirators individually or in groups
perform different tasks to a common end does not
split up a conspiracy into several different
conspiracies.
10. A man may join a conspiracy by word or by deed.
However, criminal responsibility for a conspiracy
requires more than a merely passive attitude towards
an existing conspiracy. One who commits an overt
act with knowledge of the conspiracy is guilty. And
one who tacitly consents to the object of a conspiracy
and goes along with other conspirators, actually
standing by while the others put the conspiracy into
effect, is guilty though he intends to take no active
part in the crime.”
(Emphasis supplied)
37.Lastly, In Esher Singh v. State of A.P., (2004) 11 SCC 585,
(2-Judge Bench), this Court observed:
“The circumstances in a case, when taken together on
their face value, should indicate the meeting of minds
between the conspirators for the intended object of
committing an illegal act or an act which is not illegal,
by illegal means. A few bits here and a few bits there
on which the prosecution relies cannot be held to be
adequate for connecting the accused with the
commission of the crime of criminal conspiracy. It has
to be shown that all means adopted and illegal acts
done were in furtherance of the object of conspiracy
hatched. The circumstances relied on for the purposes
of drawing an inference should be prior in point of
time than the actual commission of the offence in
furtherance of the alleged conspiracy.
39. Privacy and secrecy are more characteristics of a
conspiracy, than of a loud discussion in an elevated
place open to public view. Direct evidence in proof of a
99
conspiracy is seldom available; offence of conspiracy
can be proved by either direct or circumstantial
evidence. It is not always possible to give affirmative
evidence about the date of the formation of the
criminal conspiracy, about the persons who took part
in the formation of the conspiracy, about the object,
which the objectors set before themselves as the
object of conspiracy, and about the manner in which
the object of conspiracy is to be carried out, all this is
necessarily a matter of inference.”
(Emphasis supplied)
38.The prosecution case, linking the other accused persons
before us to the alleged crime begins at A9. Therefore, at the
outset, it is imperative for this Court to consider as to
whether findings of conviction qua A9 are legally sustainable
or not.
Accused No. 9 - Javed Ahmed Khan: Arrest, Confessional
Statement & Circumstances
39.It is the prosecution case that accused A9 was arrested at
Ahmedabad on 01.06.1996 which fact is seriously sought to
be disputed, for, as per the said accused, he was illegally
detained at Ahmedabad on 24.05.1996. He sets out yet
another version of being arrested not by the police but by CBI
100
officials, who allegedly apprehended him at Ahmedabad.
Therefore, the first thing which needs to be examined is as to
whether A9 was actually arrested on 01.06.1996 or prior
thereto.
40.Independent of the concurrent findings returned by both the
courts below, we have, after painstakingly examining the
record, arrived at the conclusion of arrest being made only on
the date stated by the police and for this, we straightway
come to the undisputed portion of the testimonies of PW98
and PW99.
41.PW99 - Superior Officer had authorised PW98 to search for
four persons who allegedly had travelled from Nepal to
Ahmedabad for carrying out bomb blast. Various places were
searched. Information was obtained about the stay of these
accused persons from the Anukul Guest House, Ahmedabad.
Such ongoing search led the police party to the resultant
arrest of four persons on 01.06.1996 including A9 near
Rupali Cinema, Ahmedabad. All these facts stand deposed
both by PW98 and PW99. The factum of such arrest being
made on 01.06.1996 also stands fortified from the conduct of
the accused. This we say so for two reasons : (a) at no point
101
in time did he ever protest his illegal detention, if any, w.e.f.
24.05.1996 especially when he was produced before the
Magistrate in accordance with the mandatory procedure
prescribed in law. The plea of illegal arrest taken belatedly,
perhaps as an afterthought, is only to belie the prosecution
case. (b) In support of the prosecution case there is yet
another clinching circumstance and that being his
confessional statement recorded under Section 164 Cr.P.C.
recorded by Judicial Magistrate having competent jurisdiction
namely Bhagwan Das, PW100 wherein also no such fact was
got recorded. (Ex. PW100/A)
42.Having taken into account the above statements, we find
ourselves to be in agreement with the reasoning of the Courts
below, pertaining to the fact of the arrest of A9. On this issue,
the High Court rightly rejected the contention of A9 being
arrested much prior to 01.06.1996, on 24.05.1996. The
Court rightly observed that the contentions of PW98 and
PW99 are consistent, no question was raised to PW99 about
this allegation in his cross-examination and that the
Ahmedabad Court acquitting A9 and A10 in FIR No. 12/1996
would have no bearing on the present case.
102
43.Hence, the plea of arrest prior to 01.06.1996 needs to be
rejected at the threshold.
44.We next proceed to examine as to whether judicial confession
of the said accused was recorded as per the mandate of law
or not. On this count, testimony of judicial officer PW100 is
evidently clear. Two days’ time for such purposes was given to
the accused and that too, after apprising him of the
consequences of making such statement and only after
finding him to have voluntarily chosen to depose, was such a
confessional statement recorded. That apart, it is not the case
of the said accused that a judicial confession was got
extracted under threat, extortion, promise or as a result of
blackmail. Hence, the statement is totally voluntary in
nature.
45.A confession is an admission made at any time by a person
charged with an offence, stating or suggesting the inference
that he has committed the offence. In law, such confession
can be made before “any” metropolitan magistrate or judicial
magistrate, whether or not, he has jurisdiction in the case.
46. A conjoint reading of Section 164 Cr.P.C. and Sections 24 to
30 of the Indian Evidence Act, makes the confession made by
103
A9 to be entirely admissible in evidence and by virtue of
Section 10 of the Evidence Act, in a given case also against a
co-accused. The Magistrate was duly empowered to record
the confession, though, it would not matter whether he had
the jurisdiction in the case or not. It was without any
inducement, threat or promise and was relevant for
adjudication of the issues/subject matter of trial. The same
led to a discovery of fact and the disclosure statements of the
co-accused also resulted into discovery of fact. The
statement was neither retracted nor its credibility and
veracity ever doubted. It is voluntary and to our reading
truthful, reliable and beyond reproach and henc, is an
efficacious piece of evidence. Establishing the guilt of the
accused, we are convinced that the said confession falls
squarely within the contours laid down by this Court in Ram
Singh v. Central Bureau of Narcotics 2011 (11) SCC 347
(2-Judge bench).
47.One of the first pertinent cases on this aspect is Pakala
Narayana Swami v. Emperor, AIR 1939 PC 47 (4-Judge
bench), wherein the Privy Council observed:
104
“ …Indian Evidence Act, 1872. Sect. 25 provides that
no confession made to a police officer shall be proved
against an accused. Sect. 26 - No confession made by
any person whilst he is in the custody of a police officer
shall be proved as against such person. Sect. 27 is a
proviso that when any fact is discovered in
consequence of information received from a person
accused of any offence whilst in the custody of a police
officer, so much of such information, whether it
amounts to a confession or not, may be proved. It is
said that to give s. 162 of the Code the construction
contended for would be to repeal s. 27 of the Evidence
Act, for a statement giving rise to a discovery could not
then be proved. It is obvious that the two sections can
in some circumstances stand together. Sect. 162 is
confined to statements made to a police officer in
course of an investigation. Sect. 25 covers a confession
made to a police officer before any investigation has
begun or otherwise not in the course of an
investigation. Sect. 27 seems to be intended to be a
proviso to s. 26 which includes any statement made by
a person whilst in custody of the police, and appears to
apply to such statements to whomsoever made, e.g., to
a fellow prisoner, a doctor, or a visitor. Such statements
are not covered by s. 162. Whether to give to s. 162 the
plain meaning of the words is to leave the statement
still inadmissible, even though a discovery of fact is
made such as is contemplated by s. 27, it does not
seem necessary to decide.”
48.Further, in Kashmira Singh v. The State of Madhya
Pradesh, AIR 1952 SC 159 (2-Judge Bench) it was held by
this Court:
“ [8] Gurubachan's confession has played an important
part in implicating the appellant, and the question at
once arises, how far and in what way the confession of
an accused [sic co-accused [ As clarified by a later
Bench in (2004) 7 SCC 779 in paras 21 to 24 at p. 790]
] person can be used against a co-accused [sic accused
[ As clarified by a later Bench in (2004) 7 SCC 779 in
105
paras 21 to 24 at p. 790] ]? It is evident that it is not
evidence in the ordinary sense of the term because, as
the Privy Council say in Bhuboni Sahu v. R. [Bhuboni
Sahu v. R., (1948-49) 76 IA 147 at pp. 155-56 : 1949
SCC OnLine PC 12] :
“… It does not indeed come within the definition
of ‘evidence’ contained in Section 3 of the
Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it
cannot be tested by cross-examination.”
Their Lordships also point out that it is :
“… obviously evidence of a very weak type. … It is
a much weaker type of evidence than the
evidence of an approver, which is not subject to
any of those infirmities.”
They stated in addition that such a confession cannot be
made the foundation of a conviction and can only be used in
“support of other evidence”. In view of these remarks it
would be pointless to cover the same ground, but we feel it is
necessary to expound this further as misapprehension still
exists. The question is, in what way can it be used in
support of other evidence? Can it be used to fill in missing
gaps? Can it be used to corroborate an accomplice or, as in
the present case, a witness who, though not an accomplice,
is placed in the same category regarding credibility because
the Judge refuses to believe him except insofar as he is
corroborated?
[9] In our opinion, the matter was put succinctly by Sir
Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR
(1911) 38 Cal 559 at p. 588 : 1911 SCC OnLine Cal 74]
where he said that such a confession can only be used to
“lend assurance to other evidence against a co-accused” or,
to put it in another way, as Reilly, J. did in Periyaswami
Moopan, In re Periyaswami Moopan, 54 Mad 75 at p. 77 :
“… the provision goes no further than this—where
there is evidence against the co-accused sufficient, if
106
believed, to support his conviction, then the kind of
confession described in Section 30 may be thrown into
the scale as an additional reason for believing that
evidence.”
[10] Translating these observations into concrete terms they
come to this. The proper way to approach a case of this kind
is, first, to marshal the evidence against the accused
excluding the confession altogether from consideration and
see whether, if it is believed, a conviction could safely be
based on it. If it is capable of belief independently of the
confession, then of course it is not necessary to call the
confession in aid. But cases may arise where the Judge is
not prepared to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain a
conviction. In such an event, the Judge may call in aid the
confession and use it to lend assurance to the other evidence
and thus fortify himself in believing what without the aid of
the confession he would not be prepared to accept.
[11] Then, as regards its use in the corroboration of
accomplices and approvers. A co-accused who confesses is
naturally an accomplice and the danger of using the
testimony of one accomplice to corroborate another has
repeatedly been pointed out. The danger is in no way
lessened when the “evidence” is not on oath and cannot be
tested by cross-examination. Prudence will dictate the same
rule of caution in the case of a witness who though not an
accomplice is regarded by the Judge as having no greater
probative value. But all these are only rules of prudence. So
far as the law is concerned, a conviction can be based on the
uncorroborated testimony of an accomplice provided the
Judge has the rule of caution, which experience dictates, in
mind and gives reasons why he thinks it would be safe in a
given case to disregard it. Two of us had occasion to examine
this recently in Rameshwar v. State of
Rajasthan [Rameshwar v. State of Rajasthan Cri. A. No. 2 of
1951, dated 20-12-1951 : 1951 SCC 1213] . It follows that
the testimony of an accomplice can in law be used to
corroborate another though it ought not to be so used save
in exceptional circumstances and for reasons disclosed. As
the Privy Council observe in Bhuboni Sahu v. The King 76
Ind. App. 147 at p. 157 :
107
“The tendency to include the innocent with the guilty
is peculiarly prevalent in India, as Judges have noted
on innumerable occasions, and it is very difficult for
the court to guard against the danger. … The only real
safeguard against the risk of condemning the innocent
with the guilty lies in insisting on independent
evidence which in some measure implicates each
accused.”
(Emphasis
supplied)
[See also: Aher Raja Khima v. State of Saurashtra, AIR
1956 SC 217 (3-Judge Bench); Bishnu Prasad Singh & Anr.
v. State of Assam, (2007) 11 SCC 467 (2-Judge Bench)].
49.Further, this Court in Jaffar Hussain Dastagir v. State of
Maharashtra 1969 (2) SCC 872 (3-Judge bench), observed
as under:
“The essential ingredient of the section is that the
information given by the accused must lead to the
discovery of the fact which is the direct outcome of
such information. Secondly, only such portion of the
information given as is distinctly connected with the
said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the
commission of some offence. The embargo on
statements of the accused before the police will not
apply if all the above conditions are fulfilled.”
50.Having considered the law on the point of confessional
statements, we now proceed to examine as to what is that A9
108
has stated therein. We deem it appropriate to extract the
same hereunder:
“We used to do the business of carpet in Kathmandu.
Javed Senior who is elder than me, Latif and myself
used to do the business. We used to live at Naya Bazar
in Kathmandu. In April, 1996 prior to Eid I saw a bag
and an attache (case) containing the articles, in the
rooms where we used to live. The bag was containing
gun powder (Barud). Attache (case) was containing
wireless set, detonator, time pencil and remote control.
The Boss of Javed Senior namely Bilal Beg reside in
Pakistan and I have not seen him. On 29.4.96, on the
day of Eid, Julfikar alias Ayub came from Pakistan to
Kathmandu. I and Latif both went to Airport to receive
him. Bilal told to Latif that boy has put on a black colour
pant and yellow colour shirt. We brought him from
Airport. I asked him that does he lives in Pakistan? He
replied that he is not a citizen of Pakistan and is a
resident of Kashmir and had gone to Pakistan for
training. I had showed him the attache (case) and bag
and had asked him as to what type of articles were kept
therein? He himself had told me that their names were
Time pencil, Detonator and Remote control. I had
already known about the wireless set. On May, 1996
two more persons also came from Pakistan to our rooms
where we used to reside in Kathmandu. Latif did not (?)
go there to bring them. Both of them had asked Latif that
nobody should visit in their room, therefore, I do not
know their names. On 8th May, 1996 Itself, Javed
Senior, Mahmood Killey, Naza and Riyaz Moula came to
Kathmandu. I and Latif used to work with Javed Senior.
In the evening of 8th May itself, Javed Senior had asked
me to accompany (him) to Delhi alongwith the bag
containing gunpowder (barud) and two detonator.
Thereafter, on l0th May Javed Senior had sent Naza to
Delhi who had to make a setting for blast in Delhi. In the
evening of 11th May, I alongwith Javed Senior, Mohd.
Killey, Riyaz Maula and Javed of' Soparewala left for
Delhi from Kathmandu but in the morning of 12" May
when we reached at the border, I remained there and
all. the rest moved from there. On 13 May, I left for Delhi
109
from the border and reached Delhi in the morning of 14
May. Javed Senior and Naza had asked me to leave the
bag at the house of Naza's friend namely Wazid Kasal.
When I reached at the house of Wazid Kasal, Wazid and
Naza were not present there and women and children
were present there. I asked them to give the bag to Naza
because it contains the cloth of Naza. I stayed in Delhi
on 14th May and on 15th May, I left for Kathmandu and
reached Kathmandu on May. Javed Senior, Mahmood
Killey and Riyaz Maula had already reached
Kathmandu before me. I asked them about their task of
Delhi. They replied that Naza had been given after
making the same and Riyaz Maula was the mechanic
because only he was the trained person. On 19
th
May,
Mahmood and Riyaz Maula went back to Delhi. When I
asked Javed Senior as to why did they go back ? He
replied that the work had been done due to some defect
occurred in it. Earlier on 6.5.96 two persons had come
from Pakistan, their names were Asadullah and Rashid,
which came to know later on and the person namely
Julfikar had come on 29.4.96. After that, the aforesaid
Julfikar, Asadullah, Rashid and myself had left for
Patna in the evening of 20.5.96. On 21
st
May, I,
Asadullah who got his name written as Nuruddin in the
ticket , Rashid whose name was got written as
Jalaluddin and Julfikar, all left from Patna to Mumbai
and reached Mumbai on 23
rd
May. On reaching Mumbai,
Asadullah told (us) that now we have to go to
Ahmedabad. In the evening at 8:30 O’clock of that very
day, all the four of us left for Ahmedabad and reached
Ahmedabad on 24.5.96 at 12 O’clock. Thereafter, we
went to the hotel and after bathing there and consuming
the meal at the downstairs (?) in the hotel. Asadullah
and Rashid both left away while saying that they were
going for prayer (Namaz). Julfikar and myself stayed in
the hotel. Fifteen minutes thereafter, CBI officials and
Manager of the hotel came there and said that they
would conduct a search. They conducted the search and
sat over there near us. At about 4-5 O'clock, Asadullah
and Rashid came over there and CBI officials took all of
us to Ahmedabad and interrogated us. I had told that I
had to come upto Patna (only) and I did not know
anything and I did not have any knowledge of other
things. I only brought the bag to Delhi and there Javed
110
Senior informed about the blast. He himself done the
work of blast on the basis of planning of Bilal Beg. I do
not know anything about any other blast. I do not want
to say anything more.”
(Emphasis supplied)
(Persons referred to in the above statement are : - A11 - Bilal Beg,
A7 - Latif, A15 - Javed Senior, A6 - Killey, A5 - Naza, A10 -
Asadullah and A13 - Riyaz)
51.The accused has given a detailed description of the larger
conspiracy of causing bomb blasts at Delhi. Independently,
we find the prosecution to have established the case by
recording disclosure statement of the concerned accused
persons and effecting recoveries of incriminating material.
52.It is not necessary that each and every circumstance
mentioned in the confession regarding the complicity of the
accused should be separately and independently
corroborated, nor is it essential that the corroboration must
come from facts and circumstances discovered after the
confession was made. It would be sufficient if the general
trend of the confession is substantiated by some evidence
which would tally with what is contained in the confession.
[Balbir Singh v. State of Punjab AIR 1957 SC 216 (3-Judge
bench); Subramania Goundan v. The State of Madras
111
(1958) SCR 428 (3-Judge bench); Shankaria v. State of
Rajasthan (1978) 3 SCC 435 (3-Judge bench)]
53. A9’s confession gives rise to the following circumstances as
culled out by the Trial Court:
i.Stay of A9 at New Delhi on 14.05.1996 (Circumstance No.
35)
ii.Handing over bag containing RDX at the residence of
PW13 (Circumstance No. 34 – Pertaining to Confession of
A9)
iii.Arrest of A9 (Circumstance No. 40)
iv.Travel of A5 from Kathmandu to Delhi (Circumstance No.
36)
54.With respect to the stay of A9 at Delhi on 14.05.1996, the
testimony of PW46, is of relevance. The Courts below
concurrently have held this circumstance to be proved. PW46
is the owner of Satyam Hotel, Paharganj, who deposed that
A9 had stayed in his hotel on 14.05.1996 along with one
Nepalese boy either in room No.104 or 106. In court, PW46
correctly identified A9. In his cross-examination it is revealed
that he saw the accused while he was checking out from the
hotel. Therefore, this circumstance is proved and the
findings of the Courts below are upheld.
112
55.The next circumstance is the handing over of bag containing
RDX at the residence of PW13. For this, we consider the
statements of PW13, PW14, PW91 and PW101. PW13 - Wajid
and PW14 - Pappi, both are declared as hostile witnesses.
They deny making any earlier statement to the police; the
handing over of the bag; and knowing of any of the accused
persons. Importantly, PW13 as per his deposition is a
resident of Turkman Gate, Delhi.
56.PW91- Inspector Ram Chander in his deposition states that
on 02.06.1996, information was received through a TPT
message (Ex.PW 91/A and 91/B) from ATS Ahmedabad
disclosing that some terrorists involved in the bomb blast at
Lajpat Nagar were arrested at Ahmedabad. He was sent to
Ahmedabad to conduct interrogations. He further states that
in his interrogation A9 stated that he was given a military
colour bag containing RDX and detonators by A7 - Latif,
which he was asked to hand over to A5 - Naza at the
residence of PW13 at Turkman Gate, Delhi. In court, he
correctly identifies A9 and A10 on the date of his deposition.
57.PW101 - Inspector Paras Nath (Investigating Officer) not only
corroborates such version but adds A9 having made a
113
disclosure of having delivered RDX at the residence of PW13 -
Wazid Kasai at Turkman Gate, Delhi, and on further
interrogation, revealed that the former knew the latter
through Mohd. Naushad i.e. A3, resident of P-7, DDA Flats,
Turkman Gate, Delhi.
58.We agree with the reasoning of the Courts below on this
circumstance. The High Court upheld the Trial Court finding
and stated that even though PW13 and PW14 turned hostile
and did not support the prosecution, the address of PW13,
residing at Turkman Gate is proved as a fact, which amounts
to facts discovered subsequently. The Trial Court held that
had there been no mention of PW13 - Wazid in the
confessional statement of A9, the residential address of PW13
could not have come to the knowledge of Delhi Police. Hence,
the circumstance of handing over of the bag containing RDX
to the residence of PW13 stood proved.
59.Further, independent of the reasoning of the Courts below,
the circumstance of handing over of the bag containing RDX
is verified through the disclosure statements of A3. Such a
disclosure statement of A3 was recorded on 15.06.1996 as
Ex.PW31/B verified by PW31 - Inspector Surinder who
114
identifies his signatures thereon and PW101 - Inspector
Paras Nath. In this disclosure he stated that on 14.05.1996,
A5, A6, A15 and Mehmood Riaz came to his house at P-7,
DDA Flats and A5 carried a bag from which he retrieved
packets containing gunpowder. This led to discovery of fact
vide recovery memo Ex. PW31/A whereby RDX was recovered
from the residence of A5.
60.Another circumstance from the confession which finds
corroboration is the travel of A5 from Kathmandu to Delhi on
10.05.1996, which stands proven on record as held by both
the Courts below. In any event, on this issue testimonies of
PW67, PW23 and PW101 are relevant. PW67- Keshar Singh
deposes as an employee of Royal Nepal Airlines on 9.7.1996,
he handed over to the I.O. (PW101) a photocopy of the
passenger list for the flight dated 10.5.1996 from Kathmandu
to Delhi. The same bears the name of Hussain M.N. (A5 –
Mirza Nisar Hussain alias Naza) at Page No. 3 (Ex.PW67-A).
This fact finds corroboration in the disclosure statement
(Ex.PW23/B) of A5 that on 10.5.1996 he had come to Delhi
through AIR Royal Nepal Airlines by the name of Mirza Nisar
Hussain for making arrangement of gas cylinder and other
115
articles for making bomb and had also spoken with Naushad.
The recording of this disclosure has been proven by PW23
and PW101 in their depositions, as has also been rightly held
by the Trial Court.
61.Therefore, the confessional statement of A9 (Ex.PW100/A)
finds corroboration through the abovementioned independent
circumstances. The circumstances which arise and are
corroborated were not in the knowledge of the police, prior to
the confessional statement of A9. Thus, the conviction of A9
is upheld and we find no reason to interfere with the findings
of the Courts below.
62.On the evidentiary value of this confession against co-
accused persons, we make reference to the judgment of this
Court in Hari Charan Kurmi & Jogia Hajam v. State of
Bihar, 1964 (6) SCR 623 (5-Judge Bench), wherein it was
observed that :
“The question about the part which a confession made
by a co-accused person can play in a criminal trial, has
to be determined in the light of the provisions of Section
30 of the Act. Section 30 provides that when more
persons than one are being tried jointly for the same
offence, and a confession made by one of such persons
affecting himself and some other of such persons is
116
proved, the Court may take into consideration such
confession as against such other person as well as
against the person who makes such confession. The
basis on which this provision is found is that if a person
makes a confession implicating himself, that may suggest
that the maker of the confession is speaking the truth.
Normally, if a statement made by an accused person is
found to be voluntary and it amounts a confession in the
sense that it implicates the maker, it is not likely that the
maker would implicate himself untruly, and so Section
30 provides that such a confession may be taken into
consideration even against a co-accused who is being
tried along with the maker of the confession. There is no
doubt that a confession made voluntarily by an accused
person can be used against the maker of the confession,
though as a matter of prudence criminal courts generally
require some corroboration to the said confession
particularly if it has been retracted. With that aspect of
the problem, however, we are not concerned in the
present appeals. When Section 30 provides that the
confession of a co-accused may be taken into
consideration, what exactly is the scope and effect of
such taking into consideration, is precisely the problem
which has been raised in the present appeals. It is clear
that the confession mentioned in Section 30 is not
evidence under Section 3 of the Act. Section 3 defines
“evidence” as meaning and including—
“(1) all statements which the court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are
called oral evidence;
(2) all documents produced for the inspection of the
court; such documents are called documents are
called documentary evidence.”
Technically construed, this definition will not apply to a
confession. Part (1) of the definition refers to oral
statements which the court permits or requires to be made
before it; and clearly, a confession made by an accused
person is not such a statement; it is not made or permitted
to be made before the court that tries the criminal case.
Part (2) of the definition refers to documents produced for
the inspection of the court; and a confession cannot be said
117
to fall even under this part. Even so, Section 30 provides
that a confession may not be evidence as strictly defined by
Section 3 of the Act, it is an element which may be taken
into consideration by the criminal court and in that sense,
it may be described as evidence in a non-technical way. But
it is significant that like other evidence which is produced
before the court, it is not obligatory on the court to take the
confession into account. When evidence as defined by the
Act is produced before the court, it is the duty of the court
to consider that evidence. What weight should be attached
to such evidence, is a matter in the discretion of the court.
But a court cannot say in respect of such evidence that it
will just not take that evidence into account. Such an
approach can, however, be adopted by the court in dealing
with a confession, because Section 30 merely enables the
court to take the confession into account.
…The result, therefore, is that in dealing with a case
against an accused person, the court cannot start with the
confession of a co-accused person; it must begin with other
evidence adduced by the prosecution and after it has
formed its opinion with regard to the quality and effect of
the said evidence, then it is permissible to turn to the
confession in order to receive assurance to the conclusion of
guilt which the judicial mind is about to reach on the said
other evidence. That, briefly stated, is the effect of the
provisions contained in Section 30. The same view has been
expressed by this Court in Kashmira Singh v. State of
Madhya Pradesh [(1952) 1 SCC 275 : (1952) SCR 526]
where the decision of the Privy Council in Bhuboni Sahu
case [(1949) 76 IA 147 at p. 155] has been cited with
approval.
In appreciating the full effect of the provisions contained in
Section 30, it may be useful to refer to the position of the
evidence given by an accomplice under Section 133 of the
Act. Section 133 provides that an accomplice shall be a
competent witness against an accused person; and that a
conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice. Illustration (b)
to Section 114 of the Act brings out the legal position that
an accomplice is unworthy of credit, unless he is
corroborated in material particulars. Reading these two
provisions together, it follows that though an accomplice is
118
a competent witness, prudence requires that his evidence
should not be acted upon unless it is materially
corroborated; and that is the effect of judicial decisions
dealing with this point. The point of significance is that
when the court deals with the evidence by an accomplice,
the court may treat the said evidence as substantive
evidence and enquire whether it is materially corroborated
or not. The testimony of the accomplice is evidence under
Section 3 of the Act and has to be dealt with as such. It is
no doubt evidence of a tainted character and as such, is
very weak; but, nevertheless, it is evidence and may be
acted upon, subject to the requirement which has now
become virtually a part of the law that it is corroborated in
material particulars.”
63.Before proceedings with the discussion on the remaining
accused persons, from the above discussion on the
confessional statement of A9 and other material on record,
here only we record that it is evident from the confessional
statement of A9 that the blast at hand was not an isolated
incident. It was in furtherance and part of an international
conspiracy to cause disruptive activities in India which was
masterminded by A11, Bilal Ahmed Beg who is a foreign
national.
64.We now proceed to examine, whether the conviction of A3,
Mohd. Naushad can be upheld or not?; and If so, then on
what ground(s)?
Accused No. 3, Mohd. Naushad: Arrest, Recovery & Circumstances
119
Arrest of A3
65.The case of the prosecution is that A3 was arrested along
with A4 on 14.06.1996 from Platform No. 4, New Delhi
Railway Station. A3 has sought to disprove the prosecution
case by stating that he was arrested much prior to
14.06.1996 i.e. the intervening night of 28/29.05.1996.
66.The circumstance surrounding the arrest of A3
(circumstance no. 9) has been concurrently held to be proved
by the Courts below.
67.To examine this circumstance, this Court has to consider the
statements of PW16, PW39 and PW101. PW16 - Inspector
Rajender Gautam stated that he joined the investigation on
14.06.1996 along with PW101 - Inspector Paras Nath,
Inspector Suresh Chander and SI Surender Varma. He
further states that PW101 received secret information that A3
- Mohd. Naushad, involved in the commission of the instant
crime, along with a Kashmiri youth would be travelling to
Gorakhpur via Vaishali Express. The police party reached
New Delhi Railway Station. At 7:30 PM, A3 and A4 came to be
arrested after being pointed out at Platform No.4 by the secret
informer. In Court, PW16 was able to correctly identify A3
120
and A4. This view is fully corroborated by PW39 - Inspector
Hari Ram Malik, and PW101 - Inspector Paras Nath who
verified the personal search memo of A3 is Ex.PW16/B,
which bears his signature. The statements of PW16, PW39
and PW101 are consistent on the cumulative chain of events
leading to A3’s arrest.
68.The submission on behalf of A3, that no independent witness
was joined at the time of the arrest and therefore, the arrest
is not proved, cannot be accepted. We find ourselves to be in
agreement with the reasoning of the High Court on this
aspect as observed that Courts cannot completely overlook
the fact that in matters involving serious offence, members of
the public are reluctant to associate with police proceedings
either for fear of persecution or for the sheer harassment of
having to attend numerous and interminable Court hearings.
Courts have on several occasions lamented this phenomenon
and at the same time stated that unavailability of public
witnesses should not, ipso facto, lead the Court to discard
prosecution, or testimonies of police witnesses.
Independently, in his cross-examination, PW16 specifically
states that PW101 - Inspector Paras Nath had asked 7-8
121
persons to join the investigation, however they had refused to
do so.
69.The kind of apathy adopted by the general public in not
coming forward to depose to associate with the prosecution,
stands highlighted by this Court in Appabhai v. State of
Gujarat, (1988) Supp SCC 241:
“Experience reminds us that civilized people are
generally insensitive when a crime is committed even in
their presence. They withdraw both from the victim
and the vigilante. They keep themselves away from the
court unless it is inevitable. They think that crime like
civil dispute is between two individuals or parties and
they should not involve themselves. This kind of apathy
of the general public is indeed unfortunate, but it is
there everywhere whether in village life, towns or cities.
One cannot ignore this handicap with which the
investigating agency has to discharge its duties. The
court, therefore, instead of doubting the prosecution
case for want of independent witness must consider
the broad spectrum of the prosecution version and
then search for the nugget of truth with due regard to
probability if any, suggested by the accused. The court,
however, must bear in mind that witnesses to a serious
crime may not react in a normal manner. Nor do they
react uniformly. The horror-stricken witnesses at a
dastardly crime or an act of egregious nature may react
differently. Their course of conduct may not be of
ordinary type in the normal circumstances. The court,
therefore, cannot reject their evidence merely because
they have behaved or reacted in an unusual manner.”
(Emphasis supplied)
122
70.Further, in Leela Ram (Dead) through Duli Chand v. State
of Haryana & Anr. (1999) 9 SCC 525 (2-Judge Bench), also
this Court observed:
“11. The Court shall have to bear in mind that
different witnesses react differently under different
situations: whereas some become speechless, some
start wailing while some others run away from the
scene and yet there are some who may come forward
with courage, conviction and belief that the wrong
should be remedied. As a matter of fact it depends
upon individuals and individuals. There cannot be
any set pattern or uniform rule of human reaction
and to discard a piece of evidence on the ground of
his reaction not falling within a set pattern is
unproductive and a pedantic exercise.
12. It is indeed necessary to note that one hardly
comes across a witness whose evidence does not
contain some exaggeration or embellishment —
sometimes there could even be a deliberate attempt
to offer embellishment and sometimes in their
overanxiety they may give a slightly exaggerated
account. The court can sift the chaff from the grain
and find out the truth from the testimony of the
witnesses. Total repulsion of the evidence is
unnecessary. The evidence is to be considered from
the point of view of trustworthiness. If this element
is satisfied, it ought to inspire confidence in the mind
of the court to accept the stated evidence though not
however in the absence of the same.”
(Emphasis supplied)
71.Even non-examination of an Investigating Officer, where
testimonies of independent witness inspire confidence, would
not make the prosecution case to be false. [Birendra Rai &
Ors. v. State of Bihar (2005) 9 SCC 719 (2-Judge bench)]
123
72.The argument that the chain leading the police to A3 is
PW13, (who turned hostile), would vitiate the former’s
involvement, cannot be accepted. We find the reasoning of the
High Court on this aspect to be appropriate, which is that:
“The State’s inability to prove the clues or sources or
even the witness's reluctance to support those factors
during the trial or the prosecution’s omission to cite any
witness would not by itself mean that the entire
circumstance has to be disbelieved. It is a fact that in
the statement of A-9 made to the Gujarat police as well
as in his confessional statement, there is a clear
mention of Wajid (PW-13), a resident of Turkman Gate.
The prosecution had recorded a statement from Wajid
during the course of the investigation which mentioned
A-3. PW-13 did not support this and he turned hostile
during the trial. That would, in this Court’s opinion,
itself not give a lie to the entire circumstance leading to
the possible role of A-9 which may otherwise be
independently proved as also the circumstances of his
arrest. In this context, it would be noteworthy to
mention that Wajid is in fact a resident of Turkman
Gate, and A-3 also lived in the neighbourhood.
Therefore, the link in the investigative chain is a matter
of inference. In this connection, the Supreme Court has
pertinently stated in Pawan Kumar v. State of
Haryana, (2001) 3 SCC 628, that:
“Incidentally, success of the prosecution on the basis
of circumstantial evidence will however depend on
the availability of a complete chain of events so as
not leave any doubt for the conclusion that the act
must have been done by the accused person. While,
however, it it is true that there should be no missing
links, in the chain of events, so far as the prosecution
is concerned, but it is not that every one of the links
must appear on the surface of the evidence, since
124
some of these links may only be inferred from the
proven facts.””
73.Further, a circumstance can be proved through a truthful
witness with his testimony fully inspiring confidence.
Quality and not quantity of the witness is what matters with
overwhelming evidence available on record. [Referance:
Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors.
(2001) 6 SCC 145) (3-Judge Bench)]
74.The submission that A3 was actually arrested on the
intervening night of 28/29.05.1996, needs to be repelled for
the reason that - (a) the author of the complaint sought to be
proved through testimony of DW-2 and DW-1 alleging such
fact, was never examined in Court. In any event, DW-2 only
verifies receipt of Rs.20 for transmission of hybrid mail
service, of the letter alleging such fact; (b) Abdul Samad
witnessed recovery of the RDX from the house of A3, being
his neighbour. The version of this witness that he had seen
A3, and his brother being arrested from their house on such
date is also not inspiring any confidence for, neither he nor
any one lodged any report and nor has the accused examined
125
his brother in Court to establish such facts; and (c) the stay
of the accused at Gorakhpur on 27.05.1996 ( discussed
below), since, at the relevant point of time, Gorakhpur was
not well connected with Delhi so as to enable any person to
travel in less than 24 hours. Hence on this circumstance, we
see no reason to differ with the concurrent findings rendered
by the courts below.
75.After his arrest, A3 made a disclosure statement
(Ex.PW31/B), which led to recovery, pointing out and
discovery of facts as well as incriminating material. The
prosecution has pressed the following 15 circumstances to
prove the involvement of A3 in the blast: (i) Stay of A3 at
Gupta Hotel, Gorakhpur (Circumstance No.13); (ii) Recovery
from the house of A3 (Circumstance No.10); (iii) Recovery of
Rs. 1 lakh from A4 (Circumstance No.17); (iv) Recovery of
front and rear number plates ( Circumstance No.25); (v)
Recovery of duplicate key from Nizamuddin ( Circumstance
No.26); (vi) Pointing out of shop where duplicate key was
prepared (Circumstance No.31); (vii) Pointing out of shop
where fake number plates were prepared ( Circumstance
No.18); (viii) Pointing out of place where Maruti Car was
126
parked for days before the blast (Circumstance No.22); (ix)
Pointing out of Dulhan Dupatta shop where the car was
parked on 19.05.1996 (Circumstance No.23); (x) Pointing out
residence of A8 from where stepney of stolen Maruti car was
recovered (Circumstance No.15); (xi) Pointing out of shop from
where soldering iron and solder was purchased
(Circumstance No.32); (xii) Pointing out of shop from where
gas cylinder was purchased ( Circumstance No.30); (xiii)
Pointing out of shop from where drill machine was procured
(Circumstance No.21); (xiv) Pointing out of shop from where
wire was purchased (Circumstance No.20); (xv) Pointing out
shop from where araldite tube was purchased (Circumstance
No.19), which we shall now discuss elaborately.
76.We deem it appropriate to state at the threshold, the evidence
of partisan witness need not necessarily be discarded as has
been held by this Court in Muthu Naicker & Ors. Etc. v.
State of Tamil Nadu, 1978 (4) SCC 385 (2-Judge Bench).
I.Stay of A3 at Gupta Hotel, Gorakhpur
77.In pursuance of the disclosure statement of A3, it is the case
of the prosecution that A3 had stayed at Gorakhpur on
127
27.05.1996. The Trial Court held this circumstance
(Circumstance No.13) to be proved. The Court held that the
stay at Gupta Hotel was not challenged by A3 and the police
only came to know about this fact through the disclosure
statement but for which, such fact would not have been
proven. Furthermore, A3 has not disputed his name in the
railway reservation chart. However, the High Court reversed
this finding on the ground that there were no departure or
arrival memos prepared by the IOs who visited Gorakhpur
and pertinently, PW83 who was an alleged eyewitness to A3
residing in their hotel, was not shown the accused during
trial to verify his identity.
78.In our view, testimonies of PW40, PW66, PW82 and PW83
have to be considered for this circumstance. PW66 and
PW40 both testify about the visit of A3 to Gorakhpur on
27.05.1996 through the railway reservation chart dated
27.05.1996 and his stay which appears through the hotel’s
visitor book of dates 18.02.1996 to 29.06.1996. PW82, the
owner of the hotel, also verifies the entries in the name of A3
in his hotel on 27.05.1996. PW83, manager of the hotel,
testifies on similar lines and has deposed that A3 stayed at
128
their hotel in Room No.14 on 27.05.1996. Pertinently, even
this witness is not cross-examined. Therefore, the
testimonies of these witnesses remain unblemished and
linkage of him being in Gorakhpur, after the incident,
undoubtedly stands proven, for which the said accused has
not furnished any explanation in his questioning under
Section 313 Cr.P.C.
79.In Joseph s/o Kooveli Poulo v. State of Kerala, (2000) 5
SCC 197 (3-Judge Bench) it was observed that during the
time of questioning under Section 313 Cr.P.C., the appellant
instead of making at least an attempt to explain or clarify the
incriminating circumstances inculpating him, and connecting
him with the crime by his adamant attitude of total denial of
everything when those circumstances were brought to his
notice by the Court not only lost the opportunity but stood
self-condemned. Such incriminating links of facts could, if at
all, have been only explained by the appellant, and by nobody
else, they being personally and exclusively within his
knowledge. In fact, Courts have, from the falsity of the
defence plea and false answers given to Court, when
questioned, found the missing links to be supplied by such
129
answers for completing the chain of incriminating
circumstances necessary to connect the person concerned
with the crime committed. [See also: State of Maharashtra
v. Suresh (2000) 1 SCC 471 (2-Judge Bench)]
80.It was observed in Musheer Khan v. State of M.P., (2010) 2
SCC 748 (2-Judge bench) that it is obligatory on the part of
the accused while being examined under Section 313 Cr.P.C.,
to furnish some explanation with respect to the incriminating
circumstances associated with him, and the court must take
note of such explanation even in a case of circumstantial
evidence, to decide whether or not the chain of circumstances
is complete. [See also Phula Singh v. State of Himachal
Pradesh, (2014) 4 SCC 9 (2-Judge bench)]
81.On a perusal of the above witness statements, we cannot but
agree with the finding of the Trial Court and disagree with
the reasoning adopted by the High Court. We find that the
fact of A3’s stay at Gorakhpur was discovered by the police in
pursuance of the disclosure statement and further leading to
the discovery of fact, the same stands proved through the
testimonies of prosecution witnesses.
II.Recovery from the residence of A3
130
82.On the circumstance pertaining to recovery from A3’s
residence (Circumstance No.10) on 15.06.1996, both the
Courts below have held this circumstance to be proved. The
testimonies of PW31, PW41 and PW101 are relevant for this
recovery. It has been the case of the prosecution that
pursuant to the disclosure statement of A3 (Ex.PW31/B), he
took the police party to his residence at P7, DDA Flats,
Turkman Gate, Delhi leading to the recovery of incriminating
articles including the RDX; Jayco alarm piece; detonator; iron
solder; araldite tubes etc. Significantly, the accused does not
dispute the said place to be in his possession, to which, his
neighbour also testifies.
83.PW31 prepared a seizure memo Ex.PW31/A of the aforesaid
mentioned articles which bears his signature and the
signature of an independent witness, PW92. PW92 who no
doubt has turned hostile has a different version of his
signature on the recovery memo, which, we, as already
observed, have found it to be false. The Trial Court has
rightly held that this witness did not have to put signatures
on Ex.PW31/A on the mere asking of the police officers and
further no allegation was made of forged signatures.
131
84.In Tahsildar Singh & Anr. v. State of U.P. AIR 1959 SC
1012 (5-Judge Bench), this Court held that the procedure
prescribed for contradicting the witness by his previous
statement made during investigation, is that, if it is intended
to contradict him by the writing, his attention must, before
the writing, can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.
85.Further, in Hari & Anr. v. The State of U.P., 2021 SCC
OnLine SC 1131, (3-Judge Bench) this Court while
reiterating the principles in appreciating the testimony of
witness who turned hostile observed as under : -
“It is well settled that the evidence of prosecution
witnesses cannot be rejected in toto merely because the
prosecution choose to treat them as hostile and cross
examined them. The evidence of such witnesses cannot
be treated as effaced or washed off the record
altogether but the same can be accepted to the extent
that their version is found to be dependable on a
careful scrutiny thereof. It is for the judge of fact to
consider in each case whether as a result of such cross
examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard
to a part of his testimony. If the judge finds that in the
process, the credit of the witness has not been
completely shaken, he may, after reading and
considering the evidence of the witness as a whole,
with due caution and care, accept, in the light of the
other evidence on the record, that part of testimony
which he finds to be creditworthy and act upon it.”
132
86.In Koli Lakjhmanbhai Chanabhai v. State of Gujarat
(1999) 8 SCC 624 (2-Judge Bench), this Court held that it is
settled law that evidence of hostile witness also can be relied
upon to the extent to which it supports the prosecution
version. Evidence of such witness cannot be treated as
washed off the record. It remains admissible in the trial and
there is no legal bar to base his conviction upon his
testimony, if corroborated by other reliable evidence. [See
also Bhagwan Singh v. State of Haryana, (1976) 1 SCC
389, (3-Judge Bench) and Sat Paul v. Delhi
Administration, (1976) 1 SCC 727 (2-Judge Bench)]
87.In any event the version of PW31 is corroborated and
strengthened through the testimony of both PW41 and
PW101. Their testimonies give us the chain of events in
which the discovery of articles from the residence of A3 was
made. From the perusal of the testimonies of prosecution
witnesses, the prosecution version about this circumstance
stands proved and the findings of the Court below are
upheld.
133
88.Pertinently, CFSL Report Ex.PW101/G pertains to the
articles recovered from the residence of A3. In this report the
following results are arrived at:
88.1.1Parcel 1 contains two rectangular slabs of black colour
putty which is alleged to be explosive substance. ‘RDX’
based high explosive are detected in the contents of
Parcel 1.
88.1.2Parcel 2 contains one Quartz table clock with two
black wires soldered with the body of the clock at its
backside. The clock mechanism contained in Parcel 2 can
form a component of improvised explosive device.
Another relevant report is CFSL Report, dated
29.08.1996, Ex.PW101/C, which is concerning articles
recovered from the spot of the blast. The report examines 17
articles and arrives at the conclusion that ‘RDX’ based high
explosive material has been detected on the contents of all 17
articles.
On a conjoint reading of the above, it is thus proved
that the material recovered from the residence of A3 is
explosive material in the form of ‘RDX’, no different than the
134
one used in the blast at Lajpat Nagar. The veracity of these
reports has not been questioned by the accused.
89.It was held in Suresh (supra) that false answer by the
accused can also be counted as providing a “missing link” for
completing the chain of the prosecution case. A false answer
offered by the accused when his attention was drawn to the
aforesaid circumstance renders that circumstance capable of
inculpating him.
III.Recovery of Money by A4/A7, Whether incriminating
against A3?
90.It is the prosecution’s case that on the personal search of A7
at the time of his arrest, a Rs.2 currency note was found
which was allegedly to be used for making payment of Rs.1
lakh to A3 & A4. The testimonies of police witnesses, PW17
and PW101 and independent witness PW35 are relevant.
This circumstance (circumstance No.17) has been held to be
proved by the Trial Court. However, it has been reversed by
the High Court on the reasoning that the conclusion of the
Trial Court in this regard is based entirely on hearsay and
the recovery of Rs.1 lakh at the instance of A4 could not be
135
an incriminating circumstance against A3 when A4 & A7
stands acquitted by the Trial Court.
91.On a perusal of the witness statements as discussed earlier,
they are consistent on the factum of the recovery of Rs.1
Lakh from Mangal Chand at the behest of A4. However, this
Court concurs with the view given by the High Court. No
direct or circumstantial evidence was brought so as to state
that the amount of Rs.1 Lakh which came to be recovered,
was to be paid to A3. In absence of any link to A3 on this
circumstance, we hold this circumstance to be not proved.
IV.Recovery of Number Plates
92.The prosecution case is that in furtherance of the pointing
out proceedings on 18.06.1996, the police party was taken by
A3, A5 and A6 to the spots where the front and rear number
plates of the vehicle were replaced (circumstance No.25).
93.On this circumstance, the testimonies of police witnesses
although not corroborated by independent witnesses cannot
be outrightly rejected and to support this, we place reliance
on Tahir v. State (1996) 3 SCC 338 (2-Judge Bench),
wherein this Court observed :
136
“Where the evidence of the police officials, after careful
scrutiny, inspires confidence and is found to be
trustworthy and reliable, it can form the basis of
conviction and the absence of some independent witness
of the locality to lend corroboration to their evidence,
does not in any way affect the creditworthiness of the
prosecution case.”
[See also Parasram v. State of Haryana (1992) 4 SCC
662 (2-Judge Bench); Pradeep Narayan Madgaonkar & Ors.
v. State of Maharashtra (1995) 4 SCC 255, (2-Judge Bench);
Balbir Singh v. State (1996) 11 SCC 139 (2-Judge Bench);
Sama Alana Abdulla v. State of Gujarat (1996) 1 SCC 427
(2-Judge Bench); and Anil alias Andya Sadashiv Nandoskar
v. State of Maharashtra AIR 1996 S.C 2943 (2-Judge
Bench)]
94.However, with a word of caution, in Anil alias Andya (supra)
this Court observed that prudence requires that the evidence
of the police officials, who are interested in the outcome of
the result of the case, be carefully scrutinized and
independently appreciated. The police officials do not suffer
from any disability to give evidence and the mere fact that
they are police officials does not by itself give rise to any
doubt about their creditworthiness.
137
95.Significantly, in Kalpnanth Rai v. State (through CBI)
(1997) 8 SCC 732 (2-Judge Bench), it was held that there
can be no legal proposition that evidence of police officer,
unless supported by independent witnesses is unworthy of
acceptance. However, it further observed that non
examination of independent witness even presence of such
witness during police raid would cast on added duty on the
court to adopt greater care by scrutinizing the evidence of
police officers. If the evidence of the police officer is found
acceptable it would be an erroneous proposition that the
court must reject the prosecution version solely on the
ground that no independent witness was examined.
96.In State (Govt of NCT of Delhi) v. Sunil & Anr. (2001) 1
SCC 652 (2-Judge Bench), this Court observed that the
Court cannot start with the presumption that the police
records are untrustworthy. As a proposition of law, the
presumption should be the other way around. That official
acts of the police have been regularly performed is a wise
principle of presumption and recognised even by the
legislature. Hence when a police officer gives evidence in
court that a certain article was recovered by him on the
138
strength of the statement made by the accused it is open to
the court to believe the version to be correct if it is not
otherwise shown to be unreliable. It is for the accused,
through cross-examination of witnesses or through any other
materials, to show that the evidence of the police officer is
either unreliable or at least unsafe to be acted upon in a
particular case. If the court has any good reason to suspect
the truthfulness of such records of the police, the Court
could certainly take into account the fact that no other
independent person was present at the time of recovery. But
it is not a legally approvable procedure to presume the police
action as unreliable to start with, nor to jettison such action
merely for the reason that police did not collect signatures of
independent persons in the documents made
contemporaneous with such actions.
97.In view of the aforesaid, in reference to this circumstance, the
testimonies we examine PW31, PW39 and PW101 are
material witnesses.
98.PW31 testifies to the recovery of the front number plate from
near Lal Mehal Khandar and rear number plate from under
Lodhi flyover near a tree through his pointing out-cum-
139
recovery memos Ex.PW31/ D and Ex.PW31/E respectively.
The same recovery is testified to by PW39 and PW101 as well.
PW101 verifies the number on the plate to be DL-2CF-5854.
It is pertinent to note that PW8 had categorically stated that
the same is the number of his Maruti car.
99.However, the Trial Court and High Court have concurrently
rejected this circumstance. In doing so, the Trial Court
observed that: (a) No independent witnesses were joined; (b)
The recovery took place from a public place, one month after
the alleged replacing of the original number plates; (c) There
is nothing on record to show that these number plates were
lying at a particular place which was only within the special
knowledge of these accused persons; and (d) These number
plates Ex.P4 and Ex.P5 were not shown to PW8, the owner of
the car, at any point during the trial.
100.We are unable to agree with the reasoning of the Courts
below since: (a) independent witnesses not being present or
examined does not vitiate the testimonies of the police
witnesses; (b) the number on the plates so recovered,
matches with the original number of the car; (c) the pointing
out memos Ex.PW31/D and Ex.PW31/E have been proved
140
and nothing has been brought about in the cross-
examination of the above-witnesses so as to cast doubt on
their testimonies for this circumstance; (d) the front and rear
number plates are recovered separately from different places
which further strengthens the prosecution case that this fact
was not within the knowledge of police party prior to the
disclosure statement of accused persons and it is only after
their statements that they could discover the fact of original
number plates being at different places.
101.Therefore, in view of the above, we hold this circumstance to
be proved.
V.Recovery of Duplicate Key
102.It is the case of the prosecution that on 18.06.1996, A3, A5
and A6, in pursuance of their disclosure statements, got the
duplicate keys recovered that were used to operate the Maruti
Car, which eventually came to be used in the bomb blast.
103.This circumstance has been rejected by both the Courts
below (circumstance No.26). The Trial Court has stated that
the key was recovered from an open space after about one
month of the incident which creates doubt on the
141
prosecution case. Further, PW64 (key maker) did not support
the prosecution case.
104.We straightaway come to the testimony of PW39, who
deposed about a key of car being recovered vide pointing out
memo Ex.PW31/F and he correctly identified it in Court.
105.In our view, the circumstances surrounding the recovery of
the number plates (circumstance No.25) and the present
circumstance (circumstance No.26) stand on a similar footing
and therefore, considering the testimonies of prosecution
witnesses, this circumstance is held to be proved. The
presence of a duplicate key at a particular place, even if that
place is accessible to all, could only be in the special
knowledge of only those persons who threw it there, therefore
the discovery of the duplicate key cannot be repelled merely
because it is recovered from an open public place. Also, the
discovery after a month further corroborates the fact that
only after the accused persons were arrested, did the police
come to discover this fact. PW64 is examined for pointing
out proceedings of where the key was made, which is the next
circumstance at hand.
142
VI.Pointing out of shop where duplicate key was prepared
106.It is the case of the prosecution that A3, A5 and A6 led the
police to the shop from where they got the duplicate key
made for stealing the Maruti car to use it in the said blast
(circumstance No.31). We now make reference to the material
witnesses on this circumstance. PW39 categorically states
that A3, A5 and A6 pointed out a place where one PW64 -
Mohd. Rizwan was found preparing keys on the footpath vide
Ex.PW31/J. PW31 corroborates this pointing out and verifies
his signature on identification memo Ex.PW31/J. Although
PW64 could not identify the accused persons but non-
identification on account of the passage of time is not fatal to
the prosecution case when he himself has identified his
signature on the identification memo.
107.The Trial Court held that the testimonies of PW31 and
PW39, remain unchallenged. PW64, admits to having
prepared a duplicate key and despite turning hostile, his
signatures are admitted on the pointing out memo. The
Court, therefore, concluded that both A3 & A5 led the Police
team to the shop of PW64 and only in pursuance of their
disclosure statements, the fact of presence of PW64 on a
143
footpath was discovered. The High Court reversed the finding
of the Court below with the reasoning that on circumstance
No.26, pertaining to recovery of the key, the Trial Court has
held PW64, to not support the prosecution case, therefore, on
a similar circumstance, concerning the same witness, a
contradictory finding cannot be given.
108.We are of the opinion that when the pointing out memos are
proved, not only through the testimonies of prosecution
witnesses but also through the signature of PW64 then the
High Court committed an error in dealing with this
circumstance at the same level in which it dealt with
circumstance No.26. That circumstance dealt with the
recovery of a key, but this circumstance particularly deals
with the shop where the accused persons got the duplicate
key prepared. We fail to understand how these two
circumstances are related when a factum of stolen car being
used in the blast is proved.
109.Irrespective of the findings on circumstance No.26, we find
this circumstance to be proven through the testimony of
police witnesses and admission of PW64.
144
VII.Pointing out of shop where fake number plates were
prepared
110.The prosecution submitsthat on 18.06.1996, the accused
persons pointed out the shop from which duplicate number
plates, which were installed onto the stolen Maruti Car, were
made (circumstance No.18).
111.PW31 deposed that A3, A5 and A6, pointed out a shop from
where they got prepared two number plates of No.DL-4C-
1895. The pointing out memo Ex.PW31/R was prepared
bearing his signature. PW39 and PW101 corroborated his
testimony.
112.Both Courts below have disbelieved this circumstance. The
Trial Court held that the owner of the shop was never
produced for examination and no number plate allegedly
recovered during the investigation was shown to any witness.
The High Court upheld the finding of the Trial Court and
held that no independent witness from the adjoining shop at
the time of preparation of the identification memo
Ex.PW31/R was examined.
113.On this circumstance, we do not find ourselves agreeing
with the reasoning of the Courts below. The testimonies of
145
the police witnesses, as well as the pointing out memo, does
not stand vitiated due to absence of independent witnesses.
Non-examination of the owner does not take away the fact
that the above-mentioned shop was pointed out by the
accused persons and the knowledge of such shop was not
available to the police, prior to such pointing out. We find
this circumstance proved against accused persons.
VIII.Pointing out of place where Maruti Car was parked for days
before the blast
114.It is the case of the prosecution that the accused persons
led the police party to the house where the accused persons
pointed out the spot where the car was parked for a few days
before the blast at Lajpat Nagar (circumstance No.22).
115.PW39 categorically states that A3, A5 and A6 pointed out
Gali No.21, opposite house No.134, Zakir Nagar, New Delhi,
vide pointing out memo Ex.PW31/S, on 18.06.1996. The
same is corroborated by PW31 and PW101.
116.This pointing out has been held to be not proved by both the
Courts below. The Trial Court held that pointing out memo
Ex. PW31/S is not an incriminating piece of evidence against
the accused persons. No independent witness had joined at
146
the time of alleged recovery. There is no mention in the said
memo as to who had parked the said car at that place and on
which date. Further, no complaint was received by the police
that the said Maruti car was parked for a number of days at
that place.
117.However, on the last point, we do not agree with the
reasoning as the car stood there merely for one/two days
which does not create suspicion of the degree that a person
approaches the police. Independently, the owner had also
lodged a complaint with the police vide FIR No.286/1996 for
theft of the vehicle used in the incident. Furthermore, the
testimonies of the prosecution witnesses are consistent on
this aspect and nothing material has been brought about in
the cross-examination to render their testimonies
untrustworthy. The knowledge of the place where the car was
parked prior to the blast, was in the exclusive knowledge of
the accused persons and only was brought to the police after
their pointing out.
IX.Pointing Out of Dulhan Dupatta Shop
118.It is the case of the prosecution that on 18.06.1996, A3, A5
and A6, pointed out the place/shop which is allegedly the
147
shop where these accused persons had parked the car on the
day of the unsuccessful blast, i.e., 19.05.1996 (circumstance
No.23). This circumstance is testified by PW31 through the
pointing out memo Ex.PW31/R and corroborated by the
testimony of PW39 and PW61.
119.The Trial Court held this circumstance to be proved on the
basis of the testimonies of PW31 and PW39, which remained
unchallenged in cross-examination and the pointing out
memo Ex.PW-31/R, being proven. Further, PW61 despite
turning hostile, has admitted his signature on the pointing
out memo of the shop. The High Court reversed this finding
and held that PW61 could not be relied upon since the
pointing out memo was not proved and further held that this
was the case where Test Identification Parade should have
been done; the shop was already in the public view and being
conspicuously located, there was nothing to be discovered by
the police and that no site plan was prepared at the behest of
the accused persons.
120.In the considered view of this Court, the testimony of the
witnesses PW31, PW39 and PW61 remain unblemished in
their examinations. We cannot agree with the reasoning of
148
the High Court on this circumstance. The place where the
car was parked on the day of the failed blast is a discovery
which was not in the knowledge of the police, prior to the
disclosure and pointing out by the accused persons.
121.The fact that the car was parked at a particular place on the
day of failed attempt is the ‘fact discovered’ pursuant to the
disclosure statements of the accused persons namely A3, A5
and A6, thus the finding of the High Court that the shop was
already in the public view, being conspicuously located,
hence there was nothing to be discovered by the police is an
unsustainable reasoning. Further, Lajpat Nagar is a densely
crowded market, famous for garments, especially ladies’
clothes and the Dulhan Dupatta is not a famous registered
trademark or copyright, which anyone and everyone would be
aware of. Even though the shop is in public view, the
particular fact that the car in question was parked there for
the purpose of causing a blast and had there been no defect
in the battery that place would have exploded that day, is the
fact discovered pursuant to the statements of the accused
persons. The testimony of PW61 cannot be overlooked whe n
he identifies the accused persons although with different
149
degrees of certainty. The High Court totally lost sight of such
facts.
122.On the aspect on no test identification being conducted, as
observed by the High Court, it is our view that it is neither
application in law nor a right of the accused to claim a Test
Identification Parade. Mere absence of the same would not,
ipso facto, render the prosecution case to be false or
unsustainable in law. [Simon & Ors. v. State of Karnataka
(2004) 2 SCC 694 (2-Judge Bench)]dana ya
123.Even if the test identification parade is not held and
witnesses identify the accused for the first time before Court,
evidence regarding identification does not become
inadmissible and cannot be discarded on the ground of not
being proceeded by test identification parade, when Court
finds the same trustworthy. However, such evidence of
identification of accused before Court should not ordinarily
form the basis of conviction unless corroborated by any other
evidence. [Dana Yadav @ Dahu & Ors. v. State of Bihar
(2002) 7 SCC 295 (2-Judge Bench)]
124.In view of the above, this circumstance is held to be proved
against the accused persons.
150
X.Recovery of Stepney by A3, A5 and A6 from the residence of
A8
125.The next circumstance that needs to be dealt with is the
recovery of the stepney from the residence of A8
(circumstance No.15), in pursuance of the disclosure
statements made on 17.06.1996. For this circumstance, we
have to consider the statements of PW8, PW17, PW31 and
PW101.
126.PW17 in his deposition states that accused persons, namely
A3 A5 and A6, got a car stepney recovered from A8’s
residence vide recovery memo Ex.PW/8 which bears his
signature. He further states that the same stepney was
identified by the owner of the car and the identification
memo was prepared. PW31 and PW101 corroborate the
deposition of PW17. PW8 denies identifying the stepney at
the time of recovery. However, he identifies his signature on
Ex.PW8/C which is the memo regarding the identification of
the stepney, prepared at the time of the recovery, as deposed
by PW101. He further identifies the recovered stepney after
verifying the number mentioned on the tyre.
151
127.The Trial Court findings on this circumstance were that the
testimonies of PW17, PW31 and PW101 establish that these
accused persons had led the police team to the residence of
A8 on the day, prior to which the police were not aware of the
factum of his residence. The prosecution has however failed
to establish beyond doubt that Stepney was recovered from
the house of A8 in the manner described by them.
Contradictory versions have been given by the witnesses
regarding the presence of PW8 at the residence of A8, from
where the stepney of the car is stated to be recovered. This
finding is affirmed by the High Court.
128.We do not agree with the conclusions arrived at by the
Courts below, based on complete ignorance of the material on
record. In our view, from a perusal of the testimonies of
PW8, PW17, PW31 and PW101, it is clear that: (a) the police
party was led by the accused persons to the residence of A8
for the purpose of the recovery of the stepney on 17.06.1996;
and (b) despite turning hostile in his deposition, the
signature of PW8 on the memo regarding identification of the
stepney (Ex.PW8/C) remains unblemished and he further
identifies the stepney of his car which has been so recovered.
152
We make reference of the reasoning of the Delhi High Court
while considering the testimony of PW13, placing reliance
upon Pawan Kumar (supra) wherein it was held that in a
case concerning circumstantial evidence it is true that there
should be no missing links, in the chain of events so far as
the prosecution is concerned, but it is not that every one of
the links must appear on the surface of the evidence, since
some of these links may only be inferred from the proven
facts.
129.The credit of the witness can be said to be impeached in
terms of the prescriptions laid down under Section 155 of the
Evidence Act. In Rammi alias Rameshwar v. State of M.P.
(1999) 8 SCC 649 (2-Judge Bench), the Court while
construing the provisions of Section 145 to 162 of the
Evidence Act has clearly held that minor variation with the
former statements would not amount to contradictions, thus
rendering the testimony of the witness to be unworthy of
credit. There is difference between contradictions,
inconsistencies, exaggerations and embellishments. A degree
of which would vary from person to person in case to case.
153
[See also Leela Ram (Dead) through Duli Chand (supra);
Calicut Engineering Works Ltd. (supra).
130.What would construe material discrepancies in the
testimony of witnesses stands explained by this Court to be
discrepancies which are “not normal, and not expected of a
normal person”. [Reference: State of Rajasthan v. Smt Kalki
& Anr. (1981) 2 SCC 752 (3-Judge Bench)]
131.We further place reliance on the judgment of this Court in
Joseph s/o Kooveli Poulo (supra), wherein it was held that
it is not that every discrepancy or contradiction matters
much in the matter of assessing the reliability and credibility
of a witness or the truthfulness of his version. Unless the
discrepancy and contradiction are so material and
substantial and that too are in respect of vitally relevant
aspects of the facts deposed, the witness cannot be
straightway condemned and their evidence discarded in its
entirety.
132.Therefore, in view of the above, this circumstance stands
proved.
XI.Pointing out of shop from where soldering iron and solder
was purchased
154
133.The case of the prosecution is that on 19.06.1996, A3 and
A5 accompanied the police party and pointed out the shop
from where soldering iron and solder for the preparation of
the bomb was made. PW31, PW39 and PW58 are the relevant
witnesses to be considered for this circumstance
(circumstance No. 32).
134.The Trial Court had held that the testimony of PW31 and
PW39 remain unchallenged and the pointing out memo
Ex.PW 31/K was proved. The High Court reversed the finding
of the Trial Court with the reasoning that PW58 was not able
to identify either of the accused persons.
135.PW39 & PW31 deposed that A3 & A5 pointed out the shop.
On a perusal of the testimony of PW58, this Court finds that
he categorically stated that two persons had purchased one
soldering iron and one solder for a sum of Rs.35. He
identifies his signature on the pointing ou t memo
Ex.PW31/K and also identifies the said articles to have been
sold by him. However, with regard to the identification of the
accused, he does not deny the two persons brought by the
police to be the ones who came to his shop for the purchase.
Therefore, in a considered view of this Court , this
155
circumstance stands proved. We set aside the reasoning of
the High Court and the findings of the Trial Court are
affirmed.
XII.Pointing out of Shop of Unique Agencies, where gas cylinder
was purchased
136.It is the prosecution case that on 19.06.1996, A3 and A5
pointed out the shop from where the gas cylinder, used in the
bomb blast at hand was purchased by the accused persons.
The circumstance (circumstance No.30) was held to be proved
by the Trial Court, however, the High Court reversed the
findings in the appeal.
137.The testimonies of PW31, PW36, PW39 and PW54 have to be
considered. PW39 stated that A3 and A5 pointed out a shop
vide pointing out memo (Ex.PW31/M). PW31 and 36 have
deposed to similar effect. PW36 categorically states that A3 &
A5 led the police party to Unique Agencies whose owner
PW54 was sitting at the counter. Pertinently, the police
witnesses are not cross-examined on the pointing out of this
shop. PW54 admitted in his testimony that two persons had
come to his shop in May 1996. In his cross examination, he
admits his signatures on the pointing out memo Ex.PW31/M.
156
There is no evidence on record to suggest that such an
independent witness was forced or coerced to sign the
pointing out memo.
138.The Trial Court held this circumstance to be proved and
held that the names of A3 and A5 were mentioned in the
pointing out memo Ex.PW31/M which contains the signature
of the independent witness, PW54. The testimony of the
police officers has been consistent on this circumstance. It,
however, stands established that, both A-3 and A-5 in
pursuance of their disclosure statements led the police team
to the shop of PW54, which was not known to the police prior
to the disclosure statements. The High Court reversed the
finding of the Trial Court on this circumstance with the
reasoning that PW54 was not able to identify the accused in
Court and the prosecution made a pertinent omission in not
showing the cylinder which was recovered from the residence
of A3 to the shopkeeper (PW54).
139.It is our view that such omission does not make the pointing
out memo which has been proven and the testimonies of the
police witnesses wholly unreliable. Therefore, this
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circumstance is held to be proved against the accused
persons.
XIII.Pointing out of shop from where drill machine was procured
140.It is the prosecution case that A3 led the police party on
18.06.1996 to the shop from where he had taken one drill
machine to make a hole in the cylinder vide pointing out
memo Ex.PW31/P (circumstance No.21).
141.This circumstance has been held to be proved by the Trial
Court holding that mere recovery of drill machine without
any specific mark of identification from the shop of PW33 is
not an incriminating circumstance. The Trial Court further
held that however, A3 led the police party to the shop of
PW33 and the police were not aware of it prior to that. The
High Court reversed this finding on the ground that PW33
denied that A3 had visited the shop and brought the drilling
machine.
142.In our view, PW101 has deposed that shop owner PW33 was
identified by A3. A3 further informed the police party that he
took one drill machine to make holes in the cylinder vide
Ex.PW31/P. Further the said drill machine was produced by
PW33 and came to be seized vide seizure memo Ex.PW31/C.
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PW31 verifies the preparation of the pointing out memo
Ex.PW31/P. Even though PW33 does not support the
prosecution case, he admits in his cross-examination his
signature on Ex.PW31/C. In view of the above, we agree with
the reasoning of the Trial Court on this circumstance that
pointing out of this shop, which was not in the knowledge of
the police, has not come to be disputed through the
testimonies of the prosecution witnesses. We cannot agree
with the High Court reasoning on this circumstance. In our
view, PW33 stating that A3 has not bought a drill machine
would vitiate the pointing out and seizure memos as well as
the testimonies of the police officers on this circumstance.
XIV.Pointing out of shop from where wire was purchased
143.The next circumstance of the prosecution case is that A3
and A5 led the police party to a shop from where they had
purchased two meter yellow colour wire (Circumstance No.
20). This fact was testified by PW101 as corroborated by
PW31 and pointing out memo Ex.PW31/O. Both the Courts
below have not accepted the prosecution version on this
circumstance.
159
144.The Trial Court held that this circumstance has not been
proved beyond reasonable doubt. No oral or documentary
evidence has come on record about purchase of two meter
wire from the shop of PW32. PW32 denied the version of
prosecution. He states that the police had visited him and
asked whether a person sitting in the vehicle had visited his
shop, which he had denied and stated that police obtained
his thumb impression on a piece of paper but he is not aware
of its contents.
145.In the considered view of the Court, the non-identification
by the independent witness does not vitiate the pointing out
proceedings and memo itself. In his testimony, PW32 does
admit the police visiting his shop on 13.05.1996 along with
the accused persons and the knowledge of his shop was not
available to the police officers, prior to the disclosure
statements of the accused.
XV.Pointing out shop from where araldite tube was
purchased
146.It is the case of the prosecution that on 18.06.1996, A3 and
A5 also led the police party to the shop from where araldite
tube was purchased (circumstance No.19).
160
147.Both the Courts below have not accepted the prosecution
version on this circumstance. The Trial Court held that the
evidence is highly scanty to prove this circumstance. Araldite
tubes recovered from the residence of A3 were not shown to
PW52 to ascertain whether it was the same araldite which
was purchased from PW52’s shop. The High Court upheld
the finding of the Trial Court on this circumstance, on the
reasoning that PW52, who is the owner of this shop, has
denied the prosecution version.
148.For this circumstance, reference has to be made to the
testimonies of PW31, PW101 and PW52. PW101 and PW31
both have deposed that this shop was pointed out by A3 and
A5 on 18.06.1996 in the presence of PW52 - Mohd. Alam.
149.PW52 states that he does not remember any specific
instance as many customers used to come to his shop and
make purchases. In his cross-examination, he denies the
pointing out proceedings and further having signed the
disclosure memos, Ex.PW31/Q and Ex.PW31/P and further
clarifies that his inability to identify the accused is not due to
lapse of time.
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150.In view of the above, this circumstance on behalf of the
prosecution, cannot be held to be proved beyond reasonable
doubt.
151.Therefore, considering our view on the circumstances above
mentioned, the following are held to be proved against A3:
i.Arrest of A3 on 14.06.1996 (Circumstance no.9)
ii.Stay of A3 at Gupta Hotel, Gorakhpur (Circumstance No.
13)
iii.Recovery from the house of A3 (Circumstance No. 10)
iv.Recovery of front and rear number plates (Circumstance
No. 25)
v.Recovery of duplicate key from Nizamuddin (Circumstance
No. 26)
vi.Pointing out of shop from where Duplicate Key was
prepared (Circumstance No. 31)
vii.Pointing out of shop where fake number plates were
prepared (Circumstance No. 18)
viii.Pointing out of place where Maruti Car was parked for
days before the blast (Circumstance No. 22)
ix.Pointing out of Dulhan Dupatta shop where the car was
parked on 19.05.1996 (Circumstance No.23)
x.Pointing out residence of A8 from where stepney of stolen
Maruti car was recovered (Circumstance No. 15)
xi.Pointing out of shop from where soldering iron and solder
was purchased (Circumstance No. 32)
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xii.Pointing out of shop from where gas cylinder was
purchased (Circumstance No.30)
xiii.Pointing out of shop from where wire was purchased
(Circumstance No.20)
xiv.Pointing out of shop from where drill machine was
procured (Circumstance No.21)
152.The argument and case laws on behalf of A3, that the
disclosure statement of A3 is in the nature of Section 161
Cr.P.C. and therefore, is not admissible, is not of relevance.
The circumstances being dealt with by this Court are in the
nature of pointing out proceedings and recoveries so affected
by the accused. Further, failure of the prosecution not to
array PW13 and Mangal Chand as accused, being a glaring
omission, would not render any impact on the case as against
the present accused persons.
153.The cumulative effect of these circumstances so established,
in the considered view of the Court, brings out the endeavour
and active role of A3 in carrying out the blast at Lajpat Nagar,
New Delhi. RDX came to be recovered from his residence, for
which no explanation has been furnished, and various
articles came to be procured by him with the purpose of
carrying out the blast at New Delhi to destabilise the nation.
163
Therefore, the conviction of A3 by the High Court is upheld
and the question framed by us, is answered in the
affirmative. However, on the issue of sentence we shall deal
herein later.
154.We now proceed to examine, whether the acquittal of A5 and
A6, is correct in the facts and circumstances of the present
case?
155.Before proceeding to our discussion, we trace the law on
interference against acquittal by High Courts. In Major
Puran v. The State of Punjab, AIR 1953 SC 459 (2-Judge
Bench), this Court observed:
“Though the High Court has full power to review
the evidence upon which an order of acquittal is
founded, yet the presumption of innocence of the
accused being further reinforced by his acquittal by the
trial court, the findings of that court can be reversed
only for very substantial and compelling reasons. In
exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court
should, and will, always give proper weight and
consideration to such matters as (1) the views of the
trial Judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he
has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness
of an appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing
the witnesses.”
164
156.Mere fact that the co-accused stand acquitted through the
evidence against all of them would not be a ground to acquit
all as held in Gurcharan Singh & Anr. v. State of Punjab,
AIR 1956 SC 460 (3-Judge Bench).
157.Further, the circumstances under which the Court can
interfere against the judgment of acquittal is also now well-
settled. It is not enough for the Court to take a different view
of the evidence; there must also be substantial and
compelling reasons for holding that the trial court was wrong
in appreciating the evidence. [Reference: Aher Raja Khima
(supra)]
158.Pertinently, this Court has clarified that expression
“substantial and compelling reasons” and “sufficient reasons”
or “strong reasons” are just to provide certain guidelines and
there cannot be any rigid or inflexible rule governing the
decision making power of the appellate court and it cannot be
construed as a formula which has to be rigidly applied in
every case. It is not necessary that before reversing a
judgment of acquittal, the High Court must necessarily
165
characterise the findings recorded therein as perverse.
[Reference: M.G. Agarwal (supra)]
159.The interference in an appeal against acquittal by special
leave under Article 136, this Court has undoubted power to
interfere with the findings of fact, no distinction being made
between judgments of acquittal and conviction, though in the
case of acquittal it will not ordinarily interfere with the
appreciation of evidence or on findings of fact unless the High
Court “acts perversely or otherwise improperly”. [Reference:
Shri Om Prakash (supra) and Chandrappa & Ors. v. State
of Karnataka (2007) 4 SCC 415 (2-Judge Bench)].
160.Lastly, in Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, (1983) 3 SCC 217 (2-Judge Bench), this Court
observed:
“5. …..a concurrent finding of fact cannot be reopened
in a n appeal by special leave unless it is established :
(1) that the finding is based on no evidence or (2) that
the finding is perverse, it being such as no reasonable
person could have arrived at even if the evidence was
taken at its face value or (3) the finding is based and
built on inadmissible evidence, which evidence, if
excluded from the vision, would negate the prosecution
case or substantially discredit or impair it or (4) some
vital piece of evidence which would tilt the balance in
favour of the convict has been overlooked, disregarded,
or wrongly discarded.”
166
161.Undoubtedly presumption of innocence of the accused
strengthened by their acquittal against the conviction and as
said ordinarily, this Court under Article 136 is slow to
interfere but where the approach adopted by the High Court
has resulted into gross miscarriage of justice and the
reasoning of the High Court is wholly against the weight of
the evidence, making the findings impossible of being
approved, the Court is duty bound to interfere, as is so
warranted under law. [Reference: State of U.P. v. Ashok
Kumar Srivastava, (1992) 2 SCC 86 (2-Judge Bench)]
162.Where the findings of fact returned by the courts below are
bordering on perversity and result in miscarriage of justice,
the Supreme Court under Article 136 would intervene to
prevent such miscarriage of justice. [Reference: Kalki
(supra)]
163.Merely because another view is possible, court would not
interfere. [Reference : Kallu @ Masih & Ors. v. The State of
Madhya Pradesh, (2006) 10 SCC 313 (2-Judge Bench).
Accused No. 5, Mirza Nissar Ahmed @ Naza: Arrest &
Circumstances:
164.Accused No. 5 - Naza has been acquitted by the High Court.
Thus, in view of the law discussed above, a detailed analysis
167
is required for all the incriminating circumstances against
him. The prosecution seeks to prove the following
circumstances to bring home the guilt of the accused:
I.Arrest of A5 from Mussoorie
165.This circumstance (circumstance No.34) has been held to be
not proved by the Trial Court and the High Court without
any discussion, does not interfere with such finding.
166.The relevant prosecution witnesses for proving this
circumstance are PW23 and PW43.
167.PW23 states that on 17.06.1996 he along with his staff had
gone to Mussoorie from Delhi and arrested A-5 from Minerva
Hotel at Mussoorie and conducted his personal search vide
memo Ex. PW23/A. Consequently, A5 was brought to Delhi
and when interrogated, he had made his disclosure statement
vide memo Ex.PW23/B. The Trial Court did not find these
testimonies sufficient for proving the arrest of A-5 due to lack
of documentary evidence. The Trial Court held that the
prosecution witnesses have given different versions regarding
their departure from Delhi to Mussoorie and also about the
time when they reached Mussoorie. Thus, it was held that
168
the prosecution failed to establish the date, time and place of
the apprehension of A5.
168.We cannot agree with the reasoning of the Trial Court on
this circumstance. It is evident from the testimony of PW23
that on arriving at Mussoorie, he made entries at PS
Mussoorie on the intervening night of 16/17.06.1996 at
about 01.00 AM, which we find to be corroborated by PW43,
who stated that they departed from New Delhi at noon on
16.06.1996 and arrived at Mussoorie in the early hours of
the morning. In our view, PW43 not stating the exact time,
does not have the effect of making the prosecution case
unbelievable. These witnesses have remained unblemished in
their cross examinations and pertinently PW23 categorically
denied that the said accused was brought from Nepal.
169.Therefore, the question of arrest of A5 from Mussoorie on
17.06.1996 stands proven.
II.Travel of A5 from Kathmandu to Delhi
170. The most relevant circumstance that led the prosecution to
A5 is circumstance No. 34, that is, the confessional
statement of A9, which we have earlier discussed and held to
169
be proved beyond reasonable doubt. A9 in his confessional
statement (Ex.PW100/A) clearly stated that A5 was sent to
Delhi on 10.05.1996 to make a setting for the blast in Delhi.
We have earlier considered and upheld this circumstance.
Therefore on the basis of this confession and testimony of
PW67 we find this circumstance incriminating against A5.
171.Now we will proceed to examine the circumstances
pertaining to discoveries made regarding allegedly
preparation/making of the bomb. Following are the
circumstances relevant for this purpose:
(i)Pointing out shop, where 9V battery used in the blast was
purchased (Circumstance no. 27).
(ii)Pointing out shop on 19.06.1996, where soldering of battery
terminals is done (Circumstance no. 28).
(iii)Pointing out shop on 19.06.1996, where Jayco wall clock is
purchased (Circumstance no. 29) and others as discussed
hereunder:
Pointing out shop, where 9V battery used in the blast was
purchased on 21.05.1996 (Circumstance No. 27)
172.It is the case of the prosecution that A5 and A6 led the
police party to the shop of PW60, Ganesh Electronics, the
shop from where they purchased 9V battery to be used in the
bomb blast at Lajpat Nagar. This circumstance has been held
170
to be proved by the Trial Court but came to be reversed by
the High Court holding that the failure of the primary fact of
identification by PW60 of the accused persons, undermines
the prosecution case. Contrarily, the Trial Court placed
reliance on the pointing out memo Ex.PW31/L, which
admittedly bears the signature of the accused persons and
PW60. The Trial Court had thus held this circumstance to be
established.
173.For this circumstance, we place reliance on the testimony of
PW31, PW39 and PW60.
174.PW31 testifies that on 19.06.1996, A5 and A6 were taken to
Ganesh Electronics from where they bought the 9 volt battery
used in the bomb blast. This is corroborated by PW39 who
deposed that A5 & A6 pointed out Ganesh Electronics vide
pointing memo Ex. PW31/L. This statement of the witnesses
remains unrebutted during their cross examination.
175.Perusal of the testimony of PW60 makes it is clear that he
does not deny that the accused persons were the ones who
had not purchased the battery from his shop and volunteers
to add the suggestion of the prosecution that perhaps they
were the ones who had purchased the battery. Further, it was
171
not possible for him to remember by face each and every
customer. We find this reasoning to be acceptable. He further
admits his signature on the pointing out memo and does not
deny the fact that A5 might have purchased the battery from
him. Hence, we find the pointing out memo Ex.PW31/L to be
proved beyond reasonable doubt. We uphold the reasoning
given by the Trial Court in this circumstance. A5 & A6 have
pointed out the shop from where the battery used in the
bomb blast was purchased and the police did not have
knowledge of the same, prior to the disclosure and pointing
out by A5.
Pointing out shop on 19.06.1996, where soldering of battery
terminals is done by A5 &A6 (Circumstance No.28)
176.It is the case of the prosecution that A5 and A6 led the
police party to the shop of PW38, Vijay Electronics, where
soldering of the terminals of the battery was done. The Trial
Court held this circumstance to be proved beyond reasonable
doubt, which finding was reversed by the High Court. The
High Court held that PW38’s admission that the pointing-out
memo was prepared somewhere else and that he signed on
blank papers is not contradicted. He did not provide any date
172
or approximate period which injects vagueness and weakens
the prosecution case.
177.The relevant witnesses are PW31, PW38 and PW39.
178.PW38 clearly identifies A5 as also deposes that in 1996 two
persons including A5 came to his shop for fixing the wires by
soldering and he got it done through his employee. Further,
he states that about a month later they came with the Police,
pointed out his shop and memo Ex.PW31/N was prepared.
179.The testimony of PW31 and PW39 records that on
19.06.1996 both A5 & A6 took them to Vijay Electronic where
they had got the wires fixed on the battery used in the blast.
The place and shop and affixing wires on the terminals of 9V
battery were confirmed. No explanation was offered by the
accused persons for having the wires fixed on the terminal of
the 9V battery. Thus, it is our view that the High Court erred
in reversing the findings as this circumstance was proved
when the pointing out memo stood proved based on the
discovery made upon the disclosure statement of A5. A5 was
unable to give justification as to purchase of battery and
soldering of wires on the same day when the bomb blast took
173
place. Further the police was not aware of this shop, prior to
the disclosure and pointing out by the accused persons.
Pointing out shop on 19.06.1996, where Jayco wall clock is
purchased (Circumstance No. 29)
180.The prosecution has sought to prove that A5 and A6 pointed
out a shop namely, Imperial Gramophone Company, Chandni
Chowk, as the shop from where they had purchased Jayco
clock for use in the blast at Lajpat Nagar.
181.This circumstance was held to be proved by the Trial Court
by placing reliance on the documentary evidence of bill
receipts and the testimonies of PW48 and PW50. The High
Court reversed this finding and held that neither PW50 nor
PW48 corroborated A5 & A6’s visit to their shop. Both of
them were unable to identify the accused persons. Moreover,
PW48 not only did not identify the accused person but
instead positively identified another person.
182.We make reference to the testimonies of PW48 and PW50.
183.PW48 in our view, supports the prosecution on the material
aspect of the sale of the clock and admits his signature on
Ex.PW48/A, a receipt. PW50, the owner, admits pointing out
memo Ex.PW31/H to have been signed by him. His
174
explanation in clearly not identifying A5 and A6 is quite
plausible as explained by him, such a transaction took place
several years prior to his deposition. The testimonies of the
police officers are consistent on this circumstance. PW31
states that on 19.06.1996, the accused persons pointed out
Imperial Gramophone Company where Jayco alarm piece was
bought vide bill which was recovered through recovery memo
Ex.PW31/G. The pointing out memo Ex.PW31/H bears his
signature. PW39 fully corroborates this chain of events.
Therefore, in view of the above, we are unable to agree with
the reasoning of the High Court. The factum of pointing out
and purchase of the Jayco stands proved and this fact was
not known to the police, prior to the pointing out by the
accused persons. This circumstance is held to be proved
against the accused persons.
Pointing out of place where bomb blast took place
184.It is the case of the prosecution that A5 and A6 pointed out
the place of occurrence i.e. Pushpa Market Lajpat Nagar near
Fountain Park Car Parking vide pointing out memo
Ex.PW31/T, where the accused persons had parked the car
fitted with the cylinder bomb on 21.05.1996 at 6:15PM.
175
185.Both the Courts below have rejected this circumstance. The
Trial Court held that this pointing out cannot be held to be
an incriminating circumstance against A5 and A6 since this
spot was known to the police from 21.05.1996, the day of the
incident. The High Court has held this circumstance to be a
weak and tenuous circumstance.
186.We are in agreement with the Courts below that since the
police was already aware of this spot, prior to the pointing
out by accused persons, it cannot be held to be an
incriminating circumstance against them.
Common Circumstances with A3, as discussed above.
187.In addition to the circumstances discussed above, the
circumstances which are already proved against A3 are also
alleged against A5 and therefore, the same reasoning would
apply and be proved against A5. Such circumstances are
listed below:
i.Recovery of front and rear number plates (Circumstance
No. 25)
ii.Recovery of duplicate key from Nizamuddin (Circumstance
No. 26)
iii.Pointing out of shop from where Duplicate Key was
prepared (Circumstance No. 31)
176
iv.Pointing out of shop where fake number plates were
prepared (Circumstance No. 18)
v.Pointing out of place where Maruti Car was parked for
days before the blast (Circumstance No. 22)
vi.Pointing out of Dulhan Dupatta shop where the car was
parked on 19.05.1996 (Circumstance No.23)
vii.Recovery of stepney from the house of A8 at the behest of
A3, A5 and A6 (Circumstance No. 15)
viii.Pointing out of shop where soldering iron and solder were
purchased (Circumstance No. 32)
ix.Pointing out of shop where Gas Cylinder was purchased
(Circumstance No. 30)
x.Pointing out of shop from where wire was purchased
(Circumstance No. 20)
188.Therefore, in total 15 circumstances stand proved as against
A5 - Naza. The cumulative effect of the circumstances held to
be proved against A5 is that he, being a part of the larger
conspiracy to destabilise the nation, participated in the
planning and carrying out of the bomb blast at Lajpat Nagar.
His role in the conspiracy is also highlighted by the proven
confession of A9, wherein he categorically stated that A15 -
Javed Senior, had sent A5 - Naza to Delhi to prepare for the
same. No explanation is furnished by him as to the
knowledge of shops from where different incriminating
177
material is purchased; recovery of the stepney of the vehicle
used in the blast; having knowledge of the failed bomb blast
attempt, which pertinently the police could not have known,
if the accused persons did not point out the same.
189.In view of the above, the question framed by us, stands
answered in the negative and the acquittal of A5 is set aside.
190.We now proceed to examine, whether the acquittal of A6, is
correct in the facts and circumstances of the present case?
Accused No. 6, Mohd. Ali Bhatt @ Killey: Arrest, Recovery &
Circumstances
191.Accused No. 6, Killey has been acquitted by the High Court.
At first, we examine the independent circumstance against
A6, i.e., arrest of A6 from Gorakhpur on 16.06.1996. The
prosecution case is that A6 was arrested from Gorakhpur on
16.06.1996 at the instance of A3 & A4.
192.The Trial Court in this regard has observed that it makes no
serious effect if he was not arrested in the manner claimed by
the prosecution or that the prosecution failed to prove the
exact time or place from where he was apprehended.
193.The relevant testimony to prove his arrest is that of PW24
who went to Gorakhpur from where A6 was arrested. He
178
deposes that A6 made a disclosure statement marked as
Ex.PW16/I. DD No.28A made by IO at PS Gorakhpur shows
visit of Delhi Police to Gorakhpur and apprehension of A6
along with A7 can’t be ruled out. However, the Court further
held that since nothing incriminating was recovered at the
time of apprehension of A6, his arrest is not an incriminating
circumstance against him. Similarly, the High Court also
observed that the arrest of A6 is not an incriminating
circumstance against him and it is at best a neutral
circumstance.
194.We are in agreement with the reasoning of the Courts below
to the limited extent that the factum of arrest through the
testimony of PW24 stand proved.
195.In view of our discussion in terms of A3 and A5, the
following proved circumstances have been alleged against A6
on an equal footing and, therefore, the same reasoning would
apply and be proved against A6:
i.Recovery of front and rear number plates (Circumstance
No. 25)
ii.Recovery of duplicate key from Nizamuddin (Circumstance
No.26);
179
iii.Pointing out of shop from where Duplicate Key was
prepared (Circumstance No.31)
iv.Pointing out of shop where fake number plates were
prepared (Circumstance No.18);
v.Pointing out of place where Maruti Car was parked for
days before the blast (Circumstance No.22)
vi.Pointing out of Dulhan Dupatta shop where the car was
parked on 19.05.1996 (Circumstance No.23)
vii.Pointing out of shop ‘Dulhan Dupatta’ where the stolen car
was parked on 19.05.1996 (Circumstance No.23)
viii.Recovery of stepney from the house of A8 at the behest of
A3, A5 and A6 (Circumstance No.15)
The circumstances proved only against A5 & A6 are
enumerated below :
ix.Pointing out shop, where 9V battery used in the blast
was purchased (Circumstance No.27).
x.Pointing out shop on 19.06.1996, where soldering of
battery terminals is done (Circumstance No.28).
xi.Pointing out shop on 19.06.1996, where Jayco wall clock
is purchased (Circumstance No.29).
196.Thus, in view of the 11 circumstances mentioned above
being proved, we are convinced about the active role played
by A6 is as one of the conspirators. Though not proved by
direct evidence, his role is quite evident through the various
circumstances which show that he has been the part of a
180
conspiracy. His role can be seen from the preparation of the
bomb till its execution. We find his involvement from the
stage of planning yet the circumstances that stood proved
showed his greater role in all the events that took place after
19.05.1996, i.e., the day of the failed attempt of the bomb. We
cannot ignore that it is his contribution in rectifying the
defects along with other co-accused persons as is proved
through the confessional statement of A9 that actually
culminated in a ghastly occurrence where people lost their
lives. It is further evident from the confession of A9, that A6
was moving along him and other accused, namely A15 and
A13, throughout for the planning and execution of the bomb
blast.
197.In view of the above, the question framed by us, stands
answered in the negative and the acquittal of A6 is set aside.
198.We now proceed to the question as to whether A3, A5 and
A6 are liable to be convicted under Section 411 IPC for
stealing the Maruti car for use in the blast.
199.The fact that a bomb blast took place in the car is not
disputed and is believed by both the courts below. On a
181
conjoint reading of the testimonies of PW8 (owner of the
vehicle) and PW76 (cleaner of the vehicle) have established
that a Maruti car bearing No.DL-2CF-5854 belonging to PW8
was stolen on the intervening night of 17/18.05.1996 and its
report vide FIR No. 286/1996 was lodged by PW8 on
18.05.1996. The circumstance of A3, A5 and A6 stealing the
said vehicle has been held to be proved by the Trial Court.
200.The involvement of A3, A5 and A6 comes to be proved
through the following circumstances: (a) The original number
plates bearing No.DL 2CF 5854 came to be recovered at the
instance of the accused persons and the said circumstance
has been held to be proved (circumstance No.25); (b) The
stepney of the Maruti car belonging to PW8 came to be
recovered by the accused persons from the residence of A8
and has been held to be proved, the same being identified by
PW8 (circumstance No.15); and (c) The accused persons have
pointed out the shop where they got the duplicate key
prepared for stealing the vehicle and duplicate number plates
for the same which have been held to be proved
(circumstance Nos.18 and 31).
182
201.Therefore, in view of the above circumstances being proved,
it is evident that the accused persons stole the car through
the duplicate key, it was in their possession and was finally
used in the commission of the crime. The acts of the accused
persons A3, A5 and A6, as proved by the above-mentioned
circumstances, warrant conviction under Section 411 IPC, as
held by the Trial Court.
Conclusion
202.Having considered the circumstances alleged by the
prosecution against the accused persons, A3, A5, A6 and A9,
it is clear that the prosecution has proved the guilt of the
abovementioned accused in the commission of the crime. The
last question which arises before us is - whether all these
accused persons were part of a conspiracy as under Section
120B IPC? We find this question to be answered in the
affirmative.
203.The blast was planned at the behest of other accused
persons, namely, A15, who was working under the
instructions of A11 to A1, who never faced trial. From an
evaluation of the evidence on record including the judicial
confession of A9, it is evident that all these accused persons
183
were known to each other and were participating with the
common objective to carry out the blast in Delhi in
furtherance of an international conspiracy to cause
disruptive activities in India. All the proven circumstances
taken together form a chain of events that implicates the
accused persons.
204.A9 specifically names A5 - Naza and A6 - Killey. A5 in
furtherance of this object arrived in Delhi on 10.05.1996
from Kathmandu, which stands proved. A9 carrying the RDX
to Delhi and A6’s arrival has already been proved. A3, A5 and
A6 proceeded to prepare the bomb in Delhi for which they
procured various articles including battery, gas cylinder,
duplicate key, fake number plates etc.; stole a car and made
two attempts for the blast, out of which the second one came
to be successful. This preparation has come to the knowledge
of the police through pointing out proceedings carried out at
the instance of these accused persons, which has been
earlier discussed. Pertinently, the material which came to be
recovered from the residence of A3 in the form of RDX is the
same explosive material used in the Lajpat Nagar bomb blast,
as has come through the CFSL Reports, Ex.PW101/C and
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Ex.PW101/G. Importantly, the factum of the failed attempt is
only brought about by the joint pointing out proceedings by
these accused persons.
205.Therefore, in view of the above, it is evident that A3, A5, A6
and A9 were part of a criminal conspiracy to cause the blast
in the capital city, New Delhi.
206.We also note that the accused persons who have not faced
trial or those against whom the State has not preferred an
appeal, prima facie, seem to be a part of this conspiracy.
However, since they are not before us, we refrain from delving
into evidence against those persons.
Sentence of A3, A5, A6 and A9
207.This brings us to the issue of sentence, since the Trial Court
had imposed Death Sentence on A3, A5 and A6 and the High
Court acquitted A5 and A6, while the death sentence
awarded to A3 was commuted to life imprisonment. A9 has
been awarded life imprisonment concurrently by the High
Court and the Trial Court. On this point, we make reference
to the judgment of this Court in Mohd. Farooq Abdul Gafur
v. State of Maharashtra, (2010) 14 SCC 641 (2-Judge
Bench), wherein it was held that in terms of rule of prudence
185
and from the point of view of principle, a Court may choose
to give primacy to life imprisonment over death penalty in
cases which are solely based on circumstantial evidence or
where the High Court has given a life imprisonment or
acquittal.
208.Considering the facts at hand and evidence on record, this
Court has to be conscious of the fact that the bomb blast
caused at the behest of the accused persons resulted in the
death of 13 persons and 38 persons suffered injuries. There
was further damage caused to the livelihood of the
shopkeepers, whose shops were burnt down due to the said
bomb blast. In view of the recovery from the residence of A3
and the confessional statement of A9, it is evident that these
accused persons were part of the plan for future blasts in the
nation as well. The incident took place on 21.05.1996, i.e.,
approximately 27 years ago; the Trial Court awarded the
sentence of death on 22.04.2010, i.e., more than 13 years ago;
and the present accused acting at the behest of the principal
conspirators; are all mitigating circumstances in not awarding
the sentence of death even though it falls within the category of
rarest of rare cases.
186
209.The law laid down in Swamy Shraddhanand v. State of
Karnataka (2008) 13 SCC 767 (3-Judge Bench) was affirmed
by a Constitution Bench of this Court in Union of India v. V.
Sriharan & Ors; (2016) 7 SCC 1 (5-Judge Bench) wherein it
was observed that:
“51. The truth of the matter is that the question of death
penalty is not free from the subjective element and the
confirmation of death sentence or its commutation by this
Court depends a good deal on the personal predilection of
the Judges constituting the Bench.
52. The inability of the criminal justice system to deal with
all major crimes equally effectively and the want of
uniformity in the sentencing process by the Court lead to a
marked imbalance in the end results. On the one hand
there appears a small band of cases in which the murder
convict is sent to the gallows on confirmation of his death
penalty by this Court and on the other hand there is a
much wider area of cases in which the offender committing
murder of a similar or a far more revolting kind is spared
his life due to lack of consistency by the Court in giving
punishments or worse the offender is allowed to slip away
unpunished on account of the deficiencies in the criminal
justice system. Thus the overall larger picture gets
asymmetric and lopsided and presents a poor reflection of
the system of criminal administration of justice. This
situation is a matter of concern for this Court and needs to
be remedied.
53. These are some of the larger issues that make us feel
reluctant in confirming the death sentence of the appellant.
xxx
93. Further, the formalisation of a special category of
sentence, though for an extremely few number of cases,
shall have the great advantage of having the death penalty
187
on the statute book but to actually use it as little as
possible, really in the rarest of rare cases.
94. In the light of the discussions made above we are
clearly of the view that there is a good and strong basis for
the Court to substitute a death sentence by life
imprisonment or by a term in excess of fourteen years and
further to direct that the convict must not be released from
the prison for the rest of his life or for the actual term as
specified in the order, as the case may be.”
[See also: Sundar v. State through Insp. of Police, 2023
SCC OnLine 310 (3-Judge Bench); B.A. Umesh v. Union of
India & Ors., 2022 SCC Online SC 1528 (3-Judge Bench); &
Manoj Pratap Singh v. State of Rajasthan, (2022) 9 SCC 81 (3-
Judge Bench).]
In view of the conspiracy, as discussed above, and the facts
at hand, including mitigating circumstances as against the
punishment of death penalty, we consider it a fit case to award
life imprisonment without remission, extending to natural life of
A3, A5, A6 and A9.
210.The record reveals it is only on the prodding on the part of
the judiciary that the trial could be completed after more than
a decade. The delay, be it for whatever reason, attributable to
the judge incharge or the prosecution, has certainly
compromised national interest. Expeditious trial of such cases
is the need of the hour, especially when it concerns national
188
security and the common man. Regrettably, enough vigilance
was not displayed by the investigating as well as the judicial
authorities. A prominent market in the heart of the capital
city is attacked and we may point out that it has not been
dealt with the required degree of promptitude and attention.
To our great dismay, we are forced to observe that this may be
due to the involvement of influential persons which is evident
from the fact that out of several accused persons, only few
have been put to trial. In our considered view, the matter
ought to have been handled with urgency and sensitivity at all
levels.
211.In view of our discussion above, the common judgment
dated 22.11.2012 rendered by the High Court of Delhi in
Death Sentence Reference No.2 of 2010 and Criminal Appeal
Nos.948, 949, 950 and 951 of 2010 is set aside. The appeals
preferred by accused Mohd. Naushad, Criminal Appeal No.
1269/2013 and Javed Ahmed Khan, Criminal Appeal Nos.
1270-1271 of 2013 are dismissed.
212.The appeal preferred by the State (Govt. NCT of Delhi),
Crl.A....@ SLP (Crl.) Nos.6447-6451 of 2013 are allowed with
the result that : A3 - Mohd. Naushad stands convicted under
189
Sections 302, 307, 411, 436 and 120B IPC as well as Section
5 of Explosive Substances Act; A5 - Mirza Nissar Hussain @
Naza and A6 - Mohd. Ali Bhatt @ Killey stand convicted under
Sections 302, 307, 436, 411 and 120B IPC and A9 - Javed
Ahmed Khan stands convicted under Sections 302, 307, 436
and 120B IPC.
213.In view of the severity of the offence resulting in deaths of
innocent persons and the role played by each accused
person, all these accused persons are sentenced to
imprisonment for life, without remission, extending to
natural life. Accused, if on bail, are directed to immediately
surrender before the Court concerned and their bail bonds
stand cancelled. A5 - Mirza Nissar Hussain @ Naza and A6 -
Mohd. Ali Bhatt @ Killey are directed to surrender forthwith.
Pending application(s), if any, shall stand disposed of
accordingly.
214.We appreciate the efforts of all the counsels, namely Mr.
Siddharth Dave, Senior Advocate; Ms. Kamini Jaiswal,
Advocate-on-Record; Mr. Sanjay Jain, Additional Solicitor
General of India and their teams, namely, Mr. Farrukh
Rasheed, Advocate-on-Record; and Advocates Ms. Jamtiben
190
Ao; Ms. Vidhi Thakkar; Mr. Prastut Dalvi; Ms. Arushi Singh;
Mr. Abu Bakr Sabbaq, Mr. Ashish Sharma; Ms. Rani Mishra;
Mr. Abhimanue Shreshtha; Mr. Rishi Raj Sharma; Mr. Satyam
Chaturvedi; Ms. Ashima Gupta; Ms. Shruti Agrawal; Mr.
Nishank Tripathi; Mr. Shreekant Neelappa Terdal (Advocate-
on-Record); Ms. Sonia Mathur; Ms. Seema Bengani; Mr.
Padmesh Mishra; Mr. Yuvraj Sharma; Mr. Udai Khanna and
Dr. N. Visakamurthy, for painstakingly taking us through the
voluminous evidence and providing us with detailed handouts
on the case file, which are purely a substance of their hard
work.
..…….……………J.
(B.R. GAVAI)
.……..……………J.
(VIKRAM NATH)
…..……….………J.
(SANJAY KAROL)
Date: 06 July, 2023;
Place: New Delhi.
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