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CASE NO.:

Appeal (crl.) 373-375 of 2004

PETITIONER:

STATE (N.C.T. OF DELHI)

RESPONDENT:

NAVJOT SANDHU@ AFSAN GURU

DATE OF JUDGMENT: 04/08/2005

BENCH:

P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

WITH

CRIMINAL APPEAL Nos. 376-378 OF 2004

STATE (N.C.T. OF DELHI) \005 APPELLANT

VERSUS

SYED ABDUL REHMAN GILANI \005 RESPONDENT

CRIMINAL APPEAL Nos. 379-380 OF 2004

SHAUKAT HUSSAIN GURU \005 APPELLANT

VERSUS

STATE (N.C.T. OF DELHI) \005 RESPONDENT

CRIMINAL APPEAL NO. 381 OF 2004

MOHD. AFZAL \005 APPELLANT

VERSUS

STATE (N.C.T. OF DELHI)

P. VENKATARAMA REDDI, J.

1. The genesis of this case lies in a macabre incident that took place

close to the noon time on 13th December, 2001 in which five heavily armed

persons practically stormed the Parliament House complex and inflicted heavy

casualties on the security men on duty. This unprecedented event bewildered

the entire nation and sent shock waves across the globe. In the gun battle that

lasted for 30 minutes or so, these five terrorists who tried to gain entry into

the Parliament when it was in session, were killed. Nine persons including eight

security personnel and one gardener succumbed to the bullets of the terrorists

and 16 persons including 13 security men received injuries. The five terrorists

were ultimately killed and their abortive attempt to lay a seize of the

Parliament House thus came to an end, triggering off extensive and effective

investigations spread over a short span of 17 days which revealed the possible

involvement of the four accused persons who are either appellants or

respondents herein and some other proclaimed offenders said to be the leaders

of the banned militant organization known as "Jaish-E-Mohammed". After the

conclusion of investigation, the investigating agency filed the report under

Section 173 Cr.P.C. against the four accused persons on 14.5.2002. Charges

were framed under various sections of Indian Penal Code (for short 'IPC'), the

Prevention of Terrorism Act, 2002 (hereinafter referred to as 'POTA') and the

Explosive Substances Act by the designated Court. The designated Special

Court presided over by Shri S.N. Dhingra tried the accused on the charges and

the trial concluded within a record period of about six months. 80 witnesses

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were examined for the prosecution and 10 witnesses were examined on behalf

of the accused S.A.R. Gilani. Plethora of documents (about 330 in number)

were exhibited. The three accused, namely, Mohd. Afzal, Shaukat Hussain

Guru and S.A.R. Gilani were convicted for the offences under Sections 121,

121A, 122, Section 120B read with Sections 302 & 307 read with Section 120-

B IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of POTA and

Sections 3 & 4 of Explosive Substances Act. The accused 1 & 2 were also

convicted under Section 3(4) of POTA. Accused No.4 namely Navjot Sandhu @

Afsan Guru was acquitted of all the charges except the one under Section 123

IPC for which she was convicted and sentenced to undergo R.I. for five years

and to pay fine. Death sentences were imposed on the other three accused for

the offence under Section 302 read with Section 120-B IPC (it would be more

appropriate to say\027 Section 120-B read with Section 302 IPC) and Section

3(2) of POTA. They were also sentenced to life imprisonment on as many as

eight counts under the provisions of IPC, POTA and Explosive Substances Act in

addition to varying amounts of fine. The amount of Rs.10 lakhs, which was

recovered from the possession of two of the accused, namely, Mohd. Afzal and

Shaukat Hussain, was forfeited to the State under Section 6 of the POTA.

2. In conformity with the provisions of Cr.P.C. the designated Judge

submitted the record of the case to the High Court of Delhi for confirmation of

death sentence imposed on the three accused. Each of the four accused filed

appeals against the verdict of the learned designated Judge. The State also

filed an appeal against the judgment of the designated Judge of the Special

Court seeking enhancement of life sentence to the sentence of death in relation

to their convictions under Sections 121, 121A and 302 IPC. In addition, the

State filed an appeal against the acquittal of the 4th accused on all the charges

other than the one under Section 123 IPC. The Division Bench of High Court,

speaking through Pradeep Nandrajog, J. by a well considered judgment

pronounced on 29.10.2003 dismissed the appeals of Mohd. Afzal and Shaukat

Hussain Guru and confirmed the death sentence imposed on them. The High

Court allowed the appeal of the State in regard to sentence under Section 121

IPC and awarded them death sentence under that Section also. The High Court

allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and

acquitted them of all charges. This judgment of the High Court has given rise

to these seven appeals\027two appeals preferred by Shaukat Hussain Guru and

one appeal preferred by Mohd. Afzal and four appeals preferred by the

State/Government of National Capital Territory of Delhi against the acquittal of

S.A.R. Gilani and Navjot Sandhu.

It may be mentioned that the accused Mohd. Afzal and Shaukat Hussain

Guru are related, being cousins. The 4th accused Navjot Sandhu @ Afsan Guru

is the wife of Shaukat Hussain. The third accused S.A.R. Gilani is a teacher in

Arabic in Delhi University. It is he who officiated the marriage ceremony of

Shaukat Hussain Guru and Navjot Sandhu who at the time of marriage

converted herself to Islam.

3.(i) Now, let us make a brief survey of the incident and the

investigation that followed, which led to the filing of the charge-sheet, as

apparent from the material on record.

(ii) There is practically no dispute in regard to the details of actual

incident, the identification of the deceased terrorists and the recoveries and

other investigations made at the spot.

(iii) Five heavily armed persons entered the Parliament House complex

in a white Ambassador Car. The said five persons (hereinafter referred to as

the 'slain' or 'deceased terrorists') were heavily armed with automatic assault

rifles, pistols, hand and rifle grenades, electronic detonators, spare

ammunition, explosives in the form of improvised explosive devices viz., tiffin

bombs and a sophisticated bomb in a container in the boot of the car made

with enormous quantity of ammonium nitrate. The High Court observed: "The

fire power was awesome\027enough to engage a battalion\027and had the attack

succeeded, the entire building with all inside would have perished."

(iv) It was a fortuitous circumstance that the Vice President's carcade,

which was awaiting departure from Gate No.11 was blocking the circular road

outside the Parliament building, with the result the deceased terrorists were

unable to get free and easy access to the Parliament House building. The

attack was foiled due to the immediate reaction of the security personnel

present at the spot and complex. There was a fierce gun-battle lasting for

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nearly 30 minutes. As mentioned earlier, nine persons including eight security

personnel and one gardener lost their lives in the attack and 16 persons

including 13 security personnel, received injuries. The five assailants were

killed.

(v) From the evidence of PW5 who was the ASI in-charge of Escort-I

vehicle of the Vice-President, we get the details of the origin of the incident. He

stated that at about 11.30 a.m. one white Ambassador car having red light

entered the Parliament complex and came to the point where the carcade of

the Vice-President was waiting near Gate No.11. Since the escort vehicle was

blocking the way, the car turned towards left. He got suspicious and ordered

the vehicle to stop. Then, the driver of the Ambassador car reversed the

vehicle and while doing so struck the rear side of the car of the Vice-President.

When the car was about to move away, he and the driver of the Vice-

President's car ran towards the car and caught hold of the collar of the driver.

As he was trying to drive away, PW5 took out his revolver. At that juncture,

the five persons in the car got out of it and quickly started laying wires and

detonators. Then PW5 fired a shot, which struck on the leg of one of the

terrorists. The terrorist also returned the fire as a result of which he received a

bullet injury on his right thigh. There was further exchange of fire. The

evidence of other witnesses reveal that there was hectic movement of the

terrorists from gate to gate within the complex firing at the security men on

duty and the latter returning the fire.

(vi) The Station House Officer of Parliament Street Police Station, Shri

G.L. Mehta (PW1) along with his team of police personnel reached the spot

after receiving a wireless message. By that time, the firing spree was over.

PW1 cordoned off the area. He found one deceased terrorist lying opposite

Gate No.1 of the Parliament building, one deceased terrorist at the porch of

Gate No.5 and three deceased terrorists lying in the porch of Gate No.9. The

Bomb Disposal Squad of NSG, a photographer and a crime team were

summoned to the spot. PW1 then deputed three Sub-Inspectors (PWs2 to 4) to

conduct investigation at the three gates. PW1 then examined the spot of

occurrence, prepared a rough sketch of the scene of occurrence and seized

various articles including arms and ammunition, live and empty cartridges and

the car and the documents found therein. Blood samples were also lifted from

various spots. The photographs of the five slain terrorists were caused to be

taken. Then, he sent the dead bodies to the mortuary in the hospital for

postmortem.

(vii) After the Bomb Disposal Squad had rendered the area safe and his

preliminary observations were over, PW1 recorded the statement of S.I. Sham

Singh (PW55) who was in the security team of Vice-President. On the basis of

this statement, 'Rukka' (Ext.PW1/1) was prepared and PW1 despatched the

same to the police station at about 5 p.m. This formed the basis for

registration of First Information Report. The FIR was registered for offences

under Sections 121, 121A, 122, 124, 120-B, 186, 332, 353, 302, 307 IPC,

Sections 3, 4 & 5 of the Explosive Substances Act and Sections 25 & 27 of the

Arms Act by the Head Constable (PW14) of the Parliament Street Police

Station. The copy of FIR was sent to the Court on the same day, as seen from

the endorsement on the document (PW 14/1). The further investigation was,

taken up by the special cell of Delhi Police.

(viii) Investigations conducted by PW1 and his team of officers led to the

recovery and seizure of the following articles inter alia:

A white ambassador car, DL3CJ1527, with a VIP red light. The car had a

sticker of the Home Ministry (subsequently found to be fake) on the windshield

(Ex. PW 1/8) containing an inscription at the rear denigrating India and

reflecting a resolve to 'destroy' it. Certain papers relating to the car were found

inside the car.

Six fake identity cards purportedly issued by Xansa Websity, 37,

Bungalow Road, New Delhi to different students with their address as 120-A,

Adarsh Nagar, Delhi and the telephone number as 9811489429. These identity

cards were in the names of Anil Kumar, Raju Lal, Sunil Verma, Sanjay Koul,

Rohail Sharma and Rohail Ali Shah (which were subsequently found to be fake

names of the deceased terrorists).

One fake identity card of Cybertech Computer Hardware Solutions in the

name of Ashiq Hussain which was being carried by the deceased terrorist

Mohammed.

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Two slips of paper bearing five domestic mobile phone numbers, which

were related to the instruments found on the deceased terrorists and two UAE

numbers. Three SIM cards corresponding to the mobile phone numbers noted

on the slips were found inside the aforementioned three instruments\027Ext. P28,

P37 & P27. In addition, three other SIM cards were recovered from the purse

of the deceased terrorist Mohammad at Gate No.1.

One sheet of paper on which the topographical details regarding the

Parliament House building and the compound were handwritten.

4.(i) So far, about the incident and the preliminary investigations at the

scene of occurrence regarding which there is practically no dispute. We shall

now narrate briefly the further factual details as unfolded by the prosecution:

(ii) While investigations were on at the spot, PW20 came to the

Parliament Complex and met PW1. PW20 provided the first leads to the

investigating officials by informing PW1 that he had sold the Ambassador car

used in the attack (DL 3C J 1527) on 11.12.2001. He had come to the spot

after seeing the said car on the television screen. PW20 had brought with him

a delivery receipt dated 11.12.2001, photocopy of the identity card of one

Ashiq Hussain etc. PW20 identified the deceased terrorist (Mohammad) at Gate

No.1 as being the said Ashiq Hussain who had purchased the car.

(iii) Inspector Mohan Chand Sharma of special cell\027PW66 undertook

the investigations pertaining to the mobile phones. Phone call details were

obtained and analysed from the respective cellular mobile service providers.

Analysis of the call records indicated that the number 9811489429 which was

found on the I.D. cards, (subsequently discovered to be that of the accused

Afzal) appeared to be integrally connected with the deceased terrorists and this

number had been in frequent contact with the cell phone No. 9810693456

(recovered from the deceased terrorist Mohammad at Gate No.1) continuously

from 28.11.2001 till the date of the attack. It was further revealed that this

number of Afzal, namely, 9811489429 was in contact with the above cell

phone of Mohammad, just before the incident i.e. at 10.40 a.m., 11.04 a.m.

and 11.22 a.m. It was also ascertained that the said number of Afzal was

activated only on 6.11.2001 close to the attack.

Further analysis of the cell phone call records showed that another cell

phone number i.e. 9811573506 (subsequently discovered to be that of

Shaukat and recovered from the 4th accused Afsan Guru) appeared to be in

close contact with Afzal's number namely 9811489429 and these numbers

were in contact with each other a few minutes before the attack on the

Parliament commenced. It was also found that the said number of Shaukat was

activated only on 7.12.2001 just a week prior to the attack. An analysis of the

call records relating to Shaukat's mobile phone further revealed that soon after

the attack i.e at 12.12 hours, there was a call from Shaukat's number to the

cell phone number 9810081228 (subsequently discovered to be that of SAR

Gilani) and there was a call from Gilani's number to Shaukat's number 10

minutes later. Moreover, it was ascertained that Gilani's number was in

constant touch with the other two accused namely Shaukat and Afzal. It

transpired that Afzal's cell phone bearing number 9811489429 was reactivated

on 7.12.2001 and the first call was from Gilani's number.

With the recoveries of the cell phones and SIM cards and on an analysis

of the details of phone numbers noted on the slips of papers in the light of the

call records, the investigation narrowed down to three numbers, namely,

9811489429, 9811573506 and 9810081228 which belonged to Afzal, Shaukat

and Gilani respectively. It was also found that the first two numbers were cash

cards and hence the details regarding their ownership were not available.

However, as regards 9810081228, the information was received from the

service provider (AIRTEL) that SAR Gilani with the residential address 535, Dr.

Mukherjee Nagar, Delhi was the regular subscriber.

PW66 then took steps on December 13th for obtaining permission from

the Joint Director, I.B. as per the requirements of Indian Telegraph Act for

keeping surveillance and tapping of the mobile phone Nos.9811489429,

9811573506 and 9810081228. On 14th December, at 12.52 hours, an incoming

call to Gilani's No. 9810081228 was intercepted by S.I. Harender Singh

(PW70). The call was in Kashmiri language. A Kashmiri knowing person

(PW71) was requested to interpret the call recorded on the tape. He translated

the call in Hindi which was recorded in Ext. PW66/4. That was a call from the

brother of Gilani which was made from Srinagar. On the same day, at 8.12

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P.M. a call was intercepted on the number 9811573506 which disclosed that

one woman was talking in a state of panic to a male person whom she

addressed as Shaukat. This conversation was transcribed by PW70 as per PW

66/3. The subsequent forensic analysis revealed that the male voice in the

conversation was of the accused Shaukat Hussain and that the female voice

was that of his wife\027accused No.4 who was the recipient of the call. The call

came from Srinagar. Both the intercepted conversations were analysed and

considered by PW 66 (Inspector M.C. Sharma) at about 10 P.M. on 14th

December. PW 66 resultantly drew an inference that the persons who were

conversing on the two mobile phones were having knowledge about the attack

on Parliament and that two persons namely, Shaukat and Chotu who were

connected with the case were in Srinagar. The calling No. 0194 492160 was

sent to the Central Agency of Srinagar Police for surveillance.

(iv) The next move was to arrest Gilani, which according to the

prosecution was at about 10 A.M. on December 15th when he was entering his

house at Mukherjee Nagar. Shri Gilani is alleged to have made disclosures to

the investigating agency, the contents of which were recorded subsequently as

Ex. PW 66/13. The disclosure statement implicated himself and the other

accused in the conspiracy to attack the Parliament. According to the

prosecution, he disclosed the facts on the basis of which further investigation

was carried out, certain recoveries were effected and discovery of facts took

place. The identity of the deceased terrorist Mohammad and others, the part

played by Shaukat and Afzal and other details are said to have been given by

him. According to the prosecution, Shri Gilani then led the Investigating

Officer to the house of Shaukat which was also located at Mukherjee Nagar.

The 4th accused Afsan Guru\027the wife of Shaukat was found there with cell

phone No. 9811573506. The search of the premises resulted in the recovery

of another cell phone 9810446375 which was in operation from 2nd November

to 6th December. Accused Navjot, on interrogation, disclosed that Mohammad

(deceased terrorist) gave Rs. 10 lac and laptop computer to Shaukat and

asked him to go to Sri Nagar in the truck along with Afzal. The truck was

registered in her name. The disclosure statement of Navjot is Ex.PW66/14.

According to the prosecution, she was arrested at about 10.45 a.m. on 15th

December. The truck number given by her was flashed to Srinagar. Srinagar

police was successful in apprehending the two accused Afzal and Shaukat while

they were in the truck belonging to Navjot. On their pointing out, the laptop

computer and an amount of Rs. 10 lac were recovered from the truck by the

SDPO, Srinagar (PW61). A mobile handset without any SIM card was also

found. It transpired that this hand set was used in the operation i.e. No.

9811489429 which established contacts with deceased terrorists minutes

before the attack. Mohd. Afzal and Shaukat Hussain, who were arrested by the

Srinagar Police at about 11.45 A.M., were brought to Delhi in a special aircraft

and were formally arrested in Delhi. The investigation was handed over the

PW76 (Inspector Gill of Special Cell) on 16th December.

(v) It is the case of the prosecution that on interrogation, they made

disclosure statements (Ex.PW 64/1 and PW 64/2) in relation to their role in the

conspiracy. On December 16th, Afzal and Shaukat led the investigating team

to the various hideouts, viz., Indira Vihar and Gandhi Vihar where the terrorists

stayed. On the search of these places, the police recovered chemicals,

prepared explosives, detonators, gloves, mixer grinder, motor cycles\027one

belonging to Shaukat and the other purchased by the deceased terrorist

Mohammad from PW29 which was allegedly used for reconnaissance (reccee).

On December 17th , the investigating officer took Mohd. Afzal to the mortuary

at the L.H. Medical College Hospital where Afzal identified the bodies of the

five deceased terrorists as Mohammad (dead body found at Gate No.1), Raja,

Rana, Hamza (dead bodies found at Gate No.9) and Haider (dead body found

at Gate No.5). From December 17th to December 19th, Afzal led the police to

various shops from where the chemicals and other materials required for

preparing explosives were purchased and also the shops from where red light

found on the seized car, motor cycle, dry fruits, mobile phones etc. were

purchased. From December 17th onwards, the laptop was analysed by the IO

with the assistance of an expert\027PW72. PW72 submitted a report narrating

the results of his examination. The laptop was also sent to BPR&D Office in

Hyderabad and another report from PW73 was obtained. The forensic analysis

revealed that the documents found at the spot with the deceased terrorists

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including various identity cards and sticker of the Home Ministry, were found

stored in that laptop.

(vi) On 19th December, the important development was that the

provisions of Prevention of Terrorism Ordinance were invoked and the offences

under the said Ordinance were also included in the relevant columns of crime

documents. According to the prosecution, this was done after due

consideration of the material collected by then and upon getting definite

information about the involvement of a banned terrorist organization\027Jaish\026e-

Mohammad. The investigation was then taken over by the Assistant

Commissioner of Police Shri Rajbir Singh (PW80). He recorded a

supplementary disclosure statement being Ext. PW64/3.

(vii) On the same day i.e. 19th December, there was another crucial

development. According to the prosecution, the three accused\027Afzal, Shaukat

and Gilani expressed their desire to make confessional statements before the

authorized officer.

On 20th December, PW80 made an application before the DCP (Special

Cell) (PW60) for recording the confessional statements of these three accused.

PW60 gave directions to PW18 to produce the three accused at the Officers

Mess, Alipur Road, Delhi. On the next day i.e. 21st December, the accused

Gilani was first produced before PW60 at the Mess building. However, Shri

Gilani refused to make a statement before PW60 and the same was recorded

by him. Thereafter, Shaukat Hussain was produced before PW60 at 3.30 P.M.

Shaukat Hussain expressed his desire to make the confessional statement and

the same was recorded by PW60 in his own handwriting which according to

him was to the dictation of Shaukat. The confessional statement recorded

purportedly in compliance with Section 32 is marked as Ex. PW60/6. The other

accused Afzal was also produced before PW60 at 7.10 P.M. on 21st December.

After he expressed the desire to make the confession, his statement was

recorded by PW60 in his own handwriting allegedly as per the dictation of the

said accused. This is Ex.PW60/9. PW80 obtained copies of the confessional

statements in sealed envelopes. In substance, both Afzal and Shaukat

confessed having been parties to the conspiracy to launch an attack on the

Parliament House. The details of the confessions will be adverted to later.

On 22nd December PW80 produced the accused persons before the Addl.

Chief Metropolitan Magistrate (PW63) in compliance with Section 32 of POTA.

The learned Magistrate conducted the proceedings in respect of each of the

accused persons in order to satisfy himself that the statements recorded by

PW60 were not the result of any inducements or threats. No complaint of any

such threat or inducement was made to PW63. Shaukat Hussain and SAR

Gilani were remanded to judicial custody on 22nd December itself. However,

the police custody of Mohd.Afzal was allowed for the purpose of conducting

certain investigations in the light of the supplementary disclosure statement

made by him to PW80.

(viii) On 4.5.2002 sanction was accorded by the Lt. Governor of Delhi in

view of the requirements of Section 50 POTA and Section 196 Cr.P.C.

Sanction was also accorded by the Commissioner of Police on 12th April for

prosecution under Explosives Substances Act. On conclusion of the

investigations, the Investigating Agency filed the report under Section 173

Cr.P.C. against the four accused. By the time the charge sheet was filed and

the charges were framed, the Prevention of Terrorism Act, 2002 was enacted

and brought into force with effect from 28th March, 2002. By the same Act, the

Prevention of Terrorism (2nd) Ordinance, 2001 was repealed subject to a

saving provision. The charges were framed on 4th June, 2002 and the trial

before the designated Judge commenced on 4th July. An Advocate was

nominated by the court at State's expense for providing legal assistance to the

accused Afzal as he did not engage any counsel on his own. Subsequently, the

counsel was changed. Before the trial started, an order was passed by the

learned designated Judge that certain documents viz. post-mortem reports

and documents relating to recoveries of arms, explosives etc. from the scene

of occurrence shall be treated as undisputed evidence in view of the consent

given by the accused persons and there was no need for formal proof of those

documents. After the trial commenced, an application was moved on behalf of

Gilani, Shaukat and Navjot challenging the admissibility of the intercepted

conversations in evidence. The learned Judge of the designated Court rejected

their contention by his order dated 11.7.2002. Assailing this order, the

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accused moved the High Court. The High Court set-aside the order of the

designated court and allowed the applications of the accused. The SLP filed

against that order was disposed of by this Court on 9.5.2003 during the

pendency of the appeals in the High Court holding inter alia that the order

passed by designated Judge was in the nature of an interlocutory order against

which appeal or revision was barred under Section 34 POTA. Without

expressing any opinion on the merits, the parties were permitted to urge the

point at issue before the Division Bench of the High Court. The decision is

reported in (2003) 6 SCC 641. The verdict of the trial court was given on

16th and 18th December, 2002. The details of conviction and sentences have

already been referred to. As noticed earlier, the High Court allowed the

appeals of A3 and A4 and dismissed the appeals of A1 and A2 and their death

sentences were confirmed.

5. Preliminary submissions:

(i) There are certain issues which arise at the threshold viz., validity of

sanction orders, non-addition of POTA offences at the beginning and framing of

charges which need to be addressed before we embark on a discussion of other

questions.

Sanction:

(ii) Section 50 of POTA enjoins that no Court shall take cognizance of

offences under the Act "without the previous sanction of the Central

Government or as the case may be, the State Government". So also, Section

196 of the Code of Criminal Procedure enacts a bar against taking cognizance

of any offence punishable under Chapter VI of the Indian Penal Code except

with the previous sanction of the Central Government or the State

Government. Some of the offences charged in the present case are under

Chapter VI of IPC.

(iii) It is first contended by the learned senior counsel Mr. Ram

Jethmalani, that the sanctions were not given, nor signed by the competent

authority. It is submitted that in relation to the Union Territory, only Central

Government is competent. Delhi being a Union Territory known as the National

Capital Territory of Delhi with effect from the date of commencement of the

Constitution (69th Amendment Act), the Central Government alone is the

competent authority to accord sanction. In the present case, both under POTA

and Cr.P.C. sanctions have been accorded 'by order and in the name of the Lt.

Governor of the National Capital Territory of Delhi'. The Lt. Governor did not

act on behalf of the Central Government nor did he act as Administrator of U.T.

He acted as the Constitutional head of the Government of NCT of Delhi and

played the role assigned to him under Section 41 of NCT of Delhi Act, as the

authentication in the order shows. Therefore, it is submitted that the sanction

purportedly granted under Section 50 of POTA is a nullity.

(iv) We find no substance in these contentions. Section 2(h) of POTA

read with Articles 239 & 239AA of the Constitution of India furnish complete

answers to these arguments and that is what the learned senior counsel for the

State has highlighted.

'State Government' is defined in Section 2(h) of POTA and it says that "in

relation to a Union Territory, 'State Government' means the Administrator

thereof". The expression 'Administrator' finds place in Article 239 of the

Constitution of India. Article 239(1) reads\005"Save as otherwise provided by

Parliament by law, every Union Territory shall be administered by the President

acting to such an extent as he thinks fit through an Administrator to be

appointed by him with such designation as he may specify". Article 239AA

inserted by the Constitution (69th Amendment Act, 1991) effective from

1.2.1992 lays down that from that date, the Union Territory of Delhi shall be

called the NCT of Delhi and "the Administrator thereof appointed under Article

239 shall be designated as the Lt. Governor." By such designation as the Lt.

Governor, the constitutional functionary contemplated by Article 239, namely,

the Administrator has not lost his status as Administrator. The designation of

Administrator gets merged into the new designation of Lt. Governor in keeping

with the upgraded status of this particular Union Territory. Thus, the Lt.

Governor who continues to be the Administrator also derives his or her

authority to grant sanction under Section 50 of POTA by virtue of the

legislative fiction created by Clause (h) of Section 2 read with Article 239. The

Administrator is deemed to be the State Government for the purpose of

Section 50 of POTA. In effect and in substance, there is a clear delegation of

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power statutorily conferred in favour of the Administrator (designated as Lt.

Governor) in respect of granting sanction under POTA. The fact that the

sanction order carries the designation of the Lt.Governor is of no consequence

and does not in any way impinge on the operation of Section 2(h) read with

Article 239. POTA is a Parliamentary enactment. Sub-Clause (b) of Clause 3 of

Article 239AA makes it explicit that notwithstanding the law making power

conferred on the Legislative Assembly of NCT, the Parliament retains its power

under the Constitution to make laws with respect to any matter for a Union

Territory or any part thereof. The reliance sought to be placed on Goa

Sampling Employees' Association Vs. G.S. Co. of India Pvt. Ltd. [(1985)

1 SCC 206] is rather misconceived. That case turned on the interpretation of

the expression 'appropriate Government' occurring in Section 10 of the

Industrial Disputes Act, 1947. The industrial dispute pertained to the workmen

employed at Mormogao Port which is located in the then union territory of Goa,

Daman and Diu. It was contended by the employer that the Central

Government was not competent to refer the dispute to the Tribunal for

adjudication. This contention found favour with the High Court of Bombay

which held that the Administrator appointed under Article 239 of the

Constitution is the State Government for the Union Territory of Goa and is the

appropriate Government within the meaning of Section 2(a) of the Industrial

Disputes Act. The judgment of the High Court was reversed by this Court after

referring to Articles 239 and 239 A and the provisions of the Govt. of Union

Territories Act, 1963 and the definitions of General Clauses Act and observed

thus:

"On a conspectus of the relevant provisions of the Constitution

and the 1963 Act, it clearly transpires that the concept of State

Government is foreign to the administration of Union Territory and

Article 239 provides that every Union Territory is to be

administered by the President. The President may act through an

administrator appointed by him. Administrator is thus the

delegate of the President. His position is wholly different from

that of a Governor of a State. Administrator can differ with his

Minister and he must then obtain the orders of the President

meaning thereby of the Central Government. Therefore, at any

rate the administrator of Union Territory does not qualify for the

description of a State Government. Therefore, the Central

Government is the 'appropriate Government'.

That decision, in our view, has no relevance. This Court was not called upon to

consider a specific provision like Section 50 or Section 2(h) of POTA. We are,

therefore, of the view that by virtue of specific statutory delegation in favour of

the Administrator who is constitutionally designated as Lt.Governor as well, the

sanction accorded by the said authority is a valid sanction under Section 50 of

POTA. It is of relevance to note that the order of sanction under POTA

(Ext.P11/1) itself recites that the Lt.Governor acted in exercise of powers

conferred by Section 50 read with Clause (h) of sub-Section (1) of Section 2 of

POTA. We find on the perusal of relevant file that the Lt.Governor saw the file

and he himself approved the proposed sanction. The grant of sanction was not

an act done by a delegate of the Lt. Governor under the Business Rules. It

may be noted that the sanction file was produced before the trial Court and

was allowed to be perused by the defence counsel vide para 149 of the trial

Court's judgment.

(v) As regards the sanction under Section 196 Cr.P.C. it is recited in

the sanction order (Ext.P11/2) that the Lt. Governor acted in exercise of

powers conferred by sub-Section (1) of Section 196 Cr.P.C. read with the

Government of India, Ministry of Home Affairs notification dated 20th March,

1974. Under that notification, there was delegation of powers to the Lt.

Governor to grant sanction. The said notification which finds place in the

Annexures to the written submissions made on behalf of Gilani shows that it

was issued under Article 239(1) of the Constitution enabling the Administrator

of the Union Territory to discharge powers and functions of the State

Government under the Cr.P.C. We accept the submission of the learned senior

counsel for the State that the delegation of power contained in the said

notification will continue to operate unless the Parliament by law provides

otherwise. The Government of NCT of Delhi Act, 1991 does not in any way

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affect the validity of delegation contained in the Presidential Notification issued

under Article 239.

We therefore hold that the sanctions under Section 50 of POTA and

Section 196 of Cr.P.C. were accorded by a competent authority.

(vi) Touching on the validity of sanction, the next point urged by Mr.

Ram Jethmalani was that there was no proper application of mind by the

authority granting the sanction. There was no sanction for the offences under

POTA whereas sanction was given for inapplicable offences under the Indian

Penal Code. The facts constituting the offence have not been stated in the

sanction order and no evidence has been adduced to show that the competent

authority addressed himself to the relevant facts and material.

The careless and inept drafting of the sanction order has given scope for

some of these comments. Surprisingly, in the first para of the order containing

recital as to the prima facie satisfaction of the Lt.Governor the POTA offences

are not specifically mentioned. They are however embraced within the

residuary terminology "along with other offences". Instead of mentioning the

POTA offences specifically and conspicuously in the order passed under Section

50 of the POTA, the drafter reversed that process by mentioning the POTA

offences under the residuary expression "apart from other offences". However,

in our view, this careless drafting cannot deal a fatal blow to the sanction

order. Looking at the substance and reading the entirety of the order, we come

to the irresistible conclusion that the sanction was duly given for the

prosecution of the accused for the offences under POTA after the competent

authority (Lt.Governor) had reached the satisfaction prima facie in regard to

the commission of the POTA offences as well. A specific reference to the POTA

offences mentioned in FIR is contained in the opening part of the order. The

order then contains the recital that the Lt.Governor was satisfied that the four

accused persons "have prima facie committed offences punishable under

Sections 121, 121A, 122, 124 and 120B of the IPC being involved in criminal

conspiracy to commit the said offences with intention of waging war against

the Government of India along with other offences." In the context in which

the expression 'along with other offences' occurs, it must be reasonably

construed so as to be referable to POTA offences mentioned in the opening

clause. The operative part of the order is more explicit inasmuch as the

Lt.Governor granted sanction for the prosecution of the four accused in a

competent Court "for committing the said offences punishable under Sections

3, 4, 5, 20 & 21 of the POTA". It is pertinent to notice that in the sanction

order under Section 196 Cr.P.C. the POTA offences do not find specific mention

at all. Thus, a distinction was maintained between the sanction under POTA

and the sanction under Cr.P.C.

The other submission that the addition of the offence under Section 120B

which does not require sanction, reveals total non-application of mind, does

not appeal to us. Though the conspiracy to commit the offences punishable by

Section 121 is covered by Section 121A, probably Section 120B was also

referred to by way of abundant caution though the prosecution for the said

offence does not require sanction. At any rate, the insertion of a seemingly

overlapping provision does not and cannot affect the validity of the sanction

order. Nor can it be said that the addition of Section 124 which has really no

application to the present case by itself vitiates the sanction order. From the

insertion of one inapplicable provision, a reasonable inference cannot be drawn

that there was no application of mind by the competent authority. A meticulous

and legalistic examination as to the offences applicable and not applicable is

not what is expected at the stage of granting sanction. It was observed by the

Privy Council in Gokulchand Dwarkadas Vs. The King [AIR 1948 Privy

Council 82] that, "the charge need not follow the exact terms of the sanction,

though it must not relate to an offence essentially different from that to which

the sanction relates". In any case we do not think that the mention of an

inapplicable Section goes to the root of the matter or otherwise makes it

vulnerable to attack.

On the validity of sanction, we have to consider yet another contention

of the learned senior counsel Mr. R. Jethmalani that in the absence of recital of

facts to sustain prosecution or proof of consideration of such facts, the sanction

order must be held to have been vitiated on the ground of non-application of

mind. Relying on the dicta of the Privy Council in Gokulchand's case, it has

been pointed out that no facts constituting the relevant offences were set out

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in the order nor any extraneous evidence was let in to show that the

sanctioning authority was seized of the facts alleged to constitute the relevant

offence. In Gokulchand's case (supra), the sanction order of the Government

was a bald order stating that the Government was "pleased to accord sanction

under Clause 23 of Cotton Cloth and Yarn (Control) Order to the prosecution of

Mr. Gokulchand Dwarkadas for breach of the provisions of Clause 18(2) of the

said order". The Privy Council held that the sanction read with the evidence

adduced at the trial was not in compliance with the provisions of Clause 23 of

the said Control Order. The following observations in that judgment may be

noted:

"\005In their Lordships' view, in order to comply with the provisions of

clause 23, it must be proved that the sanction was given in respect

of the facts constituting the offence charged. It is plainly desirable

that the facts should be referred to on the face of the sanction, but

this is not essential, since clause 23 does not require the sanction to

be in any particular form, nor even to be in writing. But if the facts

constituting the offence charged are not shown on the face of the

sanction, the prosecution must prove by extraneous evidence that

those facts were placed before the sanctioning authority\005"

The ruling of the Privy Council was cited with approval by this Court in

Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124] and certain other

cases. Ultimately, the test to be applied is whether relevant material that

formed the basis of allegations constituting the offence was placed before the

sanctioning authority and the same was perused before granting sanction.

We are of the view that this test has been amply satisfied in the instant case.

The sanction orders on their face indicate that all relevant material viz., FIR,

disclosure statements, recovery memos, draft charge sheet and other material

on record was placed before the sanctioning authority. The fact that the

sanctioning authority perused all this material is also discernible from the

recital in the sanction orders. The sanction orders make it clear that the

sanctioning authority had reached the satisfaction that prima facie the accused

committed or conspired to commit the offences mentioned therein. The

elaborate narration of facts culled out from the record placed before the

sanctioning authority and the discussion as to the applicability of each and

every Section of the penal provision quoted therein is not an imperative

requirement. A pedantic repetition from what is stated in the FIR or the draft

charge-sheet or other documents is not what is called for in order to judge

whether there was due application of mind. It must be noted that the grant of

sanction is an executive act and the validity thereof cannot be tested in the

light of principles applied to the quasi-judicial orders vide the decisions in

State of Bihar Vs. P.P. Sharma [(1992) supp.1 SCC 222] and

Superintendent of Police Vs. Deepak Chowdary [(1995) 6 SCC 225].

Apart from this, the oral evidence of PW11\027Deputy Secretary, Home who

dealt with the file also reveals that the notes prepared by himself and the

Principal Secretary, Home had drawn the attention of the Lt. Governor to the

role of individual accused and the Principal Secretary's note was approved by

the Lt. Governor. Various documents placed before the sanctioning authority

were also mentioned by PW11. PW11 brought the original sanction file and it is

seen from the judgment of the trial Court that the learned trial Judge had gone

through the file apart from making it available to the defence counsel. The oral

evidence let in by the prosecution by examining PW11 dispels any doubt as to

the consideration of the matter by the sanctioning authority before according

the sanction. The decision of this Court in Rambhai Nathabhai Gadhvi &

Ors. Vs. State of Gujarat [(1997) 7 SCC 744] which invalidated the

sanction granted by the competent authority under the Terrorist and

Disruptive Activities (Prevention) Act does not come to the aid of the accused

in the present case. The Bench consisting of A.S. Anand and K.T. Thomas, JJ.,

after referring to the infirmities in the sanction order, observed thus:

"In such a situation, can it be said that the sanctioning authority granted

sanction after applying its mind effectively and after reaching a satisfaction

that it is necessary in public interest that prosecution should be launched

against the accused under TADA. As the provisions of TADA are more

rigorous and the penalty provided is more stringent and the procedure for

trial prescribed is summary and compendious, the sanctioning process

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mentioned in Section 20-A(2) must have been adopted more seriously and

exhaustively than the sanction contemplated in other penal statutes\005"

The above observations do not mean that different standards should be

applied for judging the validity of a sanction made under the provisions of

TADA or POTA and the sanctions under ordinary laws. That is not the ratio of

the decision. The learned Judges were only pointing out that enough

seriousness was not bestowed in the process of granting sanction for

prosecution under a stringent law. The observations contained in para 10

turned on the facts of that case which are telling. It was noticed that the only

document sent to the sanctioning authority, namely, the Director General of

Police, was the FIR and the letter of the Superintendent of Police giving only

skeletal facts. It was further noticed that the Director-General did not even

grant sanction for the prosecution but what he did was to give permission to

add certain Sections of TADA. Thus, it was a case of utter non-compliance with

the elementary requirements governing sanction. The facts of the present case

are vastly different.

No separate argument was addressed in relation to the sanction given

under the Explosive Substances Act. Suffice it to say that we find no legal

infirmity in the said order passed by the Commissioner of Police which is Ext.

PW11/3.

Addition of POTO/POTA offences

(6) (i) The next question is whether the addition of offences under

Sections 3, 4 & 5 of POTO? was justified and whether POTO should have been

invoked by the Investigating Officer on the very first day when the FIR was

registered. This question will have a bearing on the admissibility of intercepted

telephonic conversations which took place prior to 19th December and the

compliance with the provisions of Section 52 of POTA which lays down certain

safeguards from the point of view of the accused. Chapter V contains

provisions relating to interception of communications. Section 45 which starts

with a non-obstante clause lays down that the evidence collected through the

interception of wire, electronic or oral communication under Chapter V shall be

admissible as evidence against the accused during the trial of the case. There

are two provisos to the Section and the 1st proviso reads as follows.

"Provided that, the contents of any wire, electronic or oral

communication intercepted pursuant to this Chapter or evidence

derived therefrom shall not be received in evidence or otherwise

disclosed in any trial, hearing or other proceeding in any court

unless each accused has been furnished with a copy of the order

of the Competent Authority and accompanying application, under

which the interception was authorized or approved not less than

ten days before trial, hearing or proceeding:"

It is common ground that the embargo placed by the first proviso comes

into operation in the instant case inasmuch as no orders were obtained for

interception from a competent authority in compliance with the various

provisions of Chapter V. The embargo under proviso to Section 45 is equally

applicable when the special Court tries along with the POTA offences, the

offences under other enactments viz., IPC, Explosives Act and Arms Act. That

is one aspect. Secondly, there are certain procedural safeguards that are laid

down in Section 52 when a person is arrested for the offences under POTA.

These safeguards were apparently introduced in keeping with the guidelines

laid down in D.K. Basu's case. They are discussed in detail later on. The

question arises whether there was deliberate failure on the part of the

investigating agency to invoke POTA initially in order to circumvent the

requirements of Sections 45 & 52.

(ii) Incidentally, another question raised is whether there was

manipulation of FIR by not showing the POTA offences though in fact POTA

was resorted to by that date. In regard to the latter aspect, the learned

counsel for the accused has drawn our attention to the letter of AIRTEL (Cell

phone service provider) addressed to the I.O.\027M.C. Sharma (PW66). In that

letter (Ext.PW35/1), while giving the reference to the FIR dated 13.12.2001,

the offences under various Sections of POTO were mentioned in addition to

other offences. From this, an inference is sought to be drawn that the FIR was

tampered with by deleting reference to POTO Sections so as to make it appear

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that on the 13th & 14th December when the interceptions took place, the

investigation was not extended to POTO offences. We find it difficult to accept

this contention. We find no basis for the comment that the FIR would have

been manipulated by deleting the POTO offences. No such suggestion was ever

put to the police officials concerned, namely, PWs 1, 9 & 14 connected with the

registration of FIR and they were not even cross-examined. The original FIR

register was produced by PW14. The trial Court perused the same while

recording the depositions and returned it. In fact, this contention about the

manipulation of FIR was not even raised in the trial Court. The High Court

rightly found no substance in this contention. As regards the letter of AIRTEL,

no question was put to PW35\027the Security Manager of AIRTEL as to the basis

on which the reference was given to the FIR mentioning various POTO

offences. When the question was raised for the first time before the High

Court, the High Court perused the case diaries and found that the addressee of

the letter (Inspector M.C. Sharma) had sent up a written request on

25.12.2001 to furnish the requisite information to him. By that time, the POTO

provisions were invoked. According to the High Court, there was every

possibility that in that letter of 25.12.2001, the POTO provisions were

mentioned and based on that, the same would have been noted in the

AIRTEL's letter. The High Court also observed that the possibility of the date

17th being a mistake cannot be ruled out. Irrespective of the question whether

the High Court was justified in observing that the date 17th noted in (Ext.

PW35/1) could be a mistake, we do not consider it necessary to delve further

into this aspect, in view of the fact that none of the witnesses pertaining to FIR

were cross examined. By reason of the purported description of FIR given in

the letter of AIRTEL (Ext.PW35/1) alone, we cannot reach the conclusion that

POTO offences entered initially in the FIR were deleted for extraneous reasons.

It is pertinent to note that the letters addressed by the Essar Cell phone

provider (vide Exts.36/6 and 36/7, dated 13th and 18th December) do not

contain any reference to POTO.

(iii) It was next contended by the learned counsel appearing for

Shaukat and Gilani that from the beginning it was crystal clear that the

persons who attempted to take control of the Parliament House were terrorists

and there was no apparent reason why the offences under POTO were not

entered in the FIR. Attention is drawn to the fact that the language used in the

narration given by PW1 in the 'rukka', viz. "the terrorist organizations in order

to disintegrate the unity and integrity of India and to carry out destructive

activities in a planned manner\005\005." is a clear pointer that the investigating

authority was conscious of applicability of POTO from the beginning, it is

contended. Though we feel that POTO provisions could have been invoked on

the very first day having regard to the nature and manifestations of this grave

crime, we find no justification to characterize the action of the concerned

police officers as malafide or motivated. It cannot be disputed that POTA

contains drastic and stringent provisions\027both substantive and procedural, for

dealing with special categories of offences which have bearing on the security

and integrity of the country. In view of this special feature of the law, it is

necessary to bestow sufficient care and thought before prosecuting an offender

under this special law instead of proceeding under the ordinary law. This

aspect has been emphasized in more than one decision of this Court dealing

with TADA provisions. In Niranjan Singh Karam Singh Punjabi Vs.

Jitendra Bhimraj Bijiaya [(1990) 4 SCC 76] this Court after noticing the

views expressed in Usmanbhai Dawoodbhai Memon Vs. State of Gujarat

[(1988) 2 SCC 271] observed thus:

"\005the provisions of the Act need not be resorted to if the nature of

the activities of the accused can be checked and controlled under

the ordinary law of the land. It is only in those cases where the

law enforcing machinery finds the ordinary law to be inadequate

or not sufficiently effective for tackling the menace of terrorist and

disruptive activities that resort should be had to the drastic

provisions of the Act. While invoking a criminal statute, such as

the Act, the prosecution is duty-bound to show from the record of

the case and the documents collected in the course of

investigation that facts emerging therefrom prima facie constitute

an offence within the letter of the law. \005"

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In Usmanbhai's case it was said;

"Before dealing with the contentions advanced, it is well to

remember that the legislation is limited in its scope and effect.

The Act is an extreme measure to be resorted to when the police

cannot tackle the situation under the ordinary penal law. The

intendment is to provide special machinery to combat the growing

menace of terrorism in different parts of the country. Since,

however, the Act is a drastic measure, it should not ordinarily be

resorted to unless the Government's law enforcing machinery

fails."

Having regard to these observations, we cannot find fault with the

Investigating Officers in going slow in bringing POTA into picture. At any rate,

it may be a case of bona fide error or overcautious approach. Once the action

of the police authorities in deferring the invocation of POTA is held to be not

mala fide, it is not possible to countenance the contention that the provisions

of POTA especially those contained in Chapter V and Section 52 ought to have

been complied with even before 19th December. It is a different matter that

D.K. Basu's guidelines were already there.

The learned counsel Mr. Gopal Subramanium has referred to the

judgment of this Court in State of West Bengal Vs. Mohammed Khaleed

[(1995) 1 SCC 684] to buttress his contention that the non- invocation of

POTA on the first day cannot be faulted. The learned counsel also argued that

POTA was invoked on 19th when further evidence came to light revealing a

planned terrorist act at the behest of certain terrorist organizations. Be that as

it may, we find nothing on record to hold that the investigating officials

deliberately and without semblance of justification decided to bypass the

provisions of POTO.

Charges whether defective?

7 (i) We now turn to the next contention of the charges being defective.

According to Shri Ram Jethmalani, the first charge which is a charge under

Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to

wage war and to commit a terrorist act is punishable under Section 121A IPC

and Section 3(3) of the POTA respectively. Therefore, according to the learned

counsel, the charge under Section 120B is misplaced. It is also contended that

the charge does not set out in clear terms, the exact period during which the

conspiracy was allegedly hatched. The learned counsel further submits that the

alleged confessional statements on which the prosecution relied would clearly

show that the conspiracy started only in the first week of December, 2001, yet

the period of offence was stated to be "on or before 13.12.2001".

(ii) It is settled law that a 'fundamental defect' should be found in the

charges if the Court has to quash it. Whether the accused was misled and

whether there was reasonable possibility of prejudice being caused to the

accused on account of defective charges are relevant considerations in judging

the effect of wrong or deficient charges. Section 215 of Cr.P.C. makes it clear

that no error or omission in stating either the offence or the particulars

required to be stated shall be regarded as material unless the accused was in

fact misled by such error or omission and it has occasioned a failure of justice.

The test of prejudice or reasonable possibility of prejudice was applied by this

Court in William Slaney's case [AIR 1956 SC 116] in testing the argument

based on the omission, error or irregularity in framing the charges. The same

test was also applied in State of A.P. Vs. C. Ganeswar Rao [(1964) 3 SCR

297]. It has not been demonstrated in the instant case as to how the accused

or any of them were misled or any prejudice was caused to them on account of

the alleged defects in framing of charges. No such objection was even taken

before the trial Court. As pointed out in William Slaney's case (para 45 of

AIR), it will always be material to consider whether the objection to the

nature of charge was taken at an early stage. To the same effect are the

observations in Ganeswar Rao's case (supra). It is difficult to spell out with

exactitude the details relating to the starting point of conspiracy. As pointed

out in Esher Singh Vs. State of A.P. [(2004) (1 SCC page 585, 607], it is

not always possible "to give affirmative evidence about the date of formation

of the criminal conspiracy". We do not think that if instead of mentioning 'the

first week of December, 2001' the wording 'before December, 2001' is

employed, the prosecution should fail merely for that reason. The accused

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cannot be said to have been misled or prejudiced on that account. On the

other hand, it is more than clear that the accused did understand the case

they were called upon to meet. The question whether Section 120B applies to

POTA offences or Section 3(3) alone applies is not a matter on which a definite

conclusion should be reached ahead of the trial. It is not uncommon that the

offence alleged might seemingly fall under more than one provision and

sometimes it may not be easy to form a definite opinion as to the Section in

which the offence appropriately falls. Hence, charges are often framed by way

of abundant caution. Assuming that an inapplicable provision has been

mentioned, it is no ground to set aside the charges and invalidate the trial.

Other legal issues

We shall, now, deal with certain legal issues, which have been debated

before us in extenso. These issues have a bearing on the

admissibility/relevancy of evidence and the evidentiary value or weight to be

attached to the permissible evidence.

8. Law regarding confessions

We start with the confessions. Under the general law of the land as

reflected in the Indian Evidence Act, no confession made to a police officer can

be proved against an accused. 'Confessions'-which is a terminology used in

criminal law is a species of 'admissions' as defined in Section 17 of the Indian

Evidence Act. An admission is a statement-oral or documentary which

enables the court to draw an inference as to any fact in issue or relevant fact.

It is trite to say that every confession must necessarily be an admission, but,

every admission does not necessarily amount to a confession. While Section 17

to 23 deals with admissions, the law as to confessions is embodied in Sections

24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a

police officer. Section 26 goes a step further and prohibits proof of confession

made by any person while he is in the custody of a police officer, unless it be

made in the immediate presence of a Magistrate. Section 24 lays down the

obvious rule that a confession made under any inducement, threat or promise

becomes irrelevant in a criminal proceeding. Such inducement, threat or

promise need not be proved to the hilt. If it appears to the court that the

making of the confession was caused by any inducement, threat or promise

proceeding from a person in authority, the confession is liable to be excluded

from evidence. The expression 'appears' connotes that the Court need not go

to the extent of holding that the threat etc. has in fact been proved. If the

facts and circumstances emerging from the evidence adduced make it

reasonably probable that the confession could be the result of threat,

inducement or pressure, the court will refrain from acting on such confession,

even if it be a confession made to a Magistrate or a person other than police

officer. Confessions leading to discovery of fact which is dealt with under

Section 27 is an exception to the rule of exclusion of confession made by an

accused in the custody of a police officer. Consideration of a proved confession

affecting the person making it as well as the co-accused is provided for by

Section 30. Briefly and broadly, this is the scheme of the law of evidence vis-

a-vis confessions. The allied provision which needs to be noticed at this

juncture is Section 162 of the Cr.P.C. It prohibits the use of any statement

made by any person to a police officer in the course of investigation for any

purpose at any enquiry or trial in respect of any offence under investigation.

However, it can be used to a limited extent to contradict a witness as provided

for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it

explicit that the embargo laid down in the Section shall not be deemed to apply

to any statement falling within clause (1) of Section 32 or to affect the

provisions of Section 27 of the Evidence Act.

In the Privy Council decision of P. Narayana Swami vs. Emperor

[AIR 1939 PC 47] Lord Atkin elucidated the meaning and purport of the

expression 'confession' in the following words:

"\005. A confession must either admit in terms the offence, or at any

rate substantially all the facts which constitute the offence. An

admission of a gravely incriminating fact, even a conclusively

incriminating fact is not of itself a confession."

Confessions are considered highly reliable because no rational person

would make admission against his interest unless prompted by his conscience

to tell the truth. "Deliberate and voluntary confessions of guilt, if clearly

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proved are among the most effectual proofs in law". (vide Taylor's Treatise on

the Law of Evidence Vol. I). However, before acting upon a confession the

court must be satisfied that it was freely and voluntarily made. A confession

by hope or promise of advantage, reward or immunity or by force or by fear

induced by violence or threats of violence cannot constitute evidence against

the maker of confession. The confession should have been made with full

knowledge of the nature and consequences of the confession. If any

reasonable doubt is entertained by the court that these ingredients are not

satisfied, the court should eschew the confession from consideration. So also

the authority recording the confession \026 be it a Magistrate or some other

statutory functionary at the pre-trial stage, must address himself to the issue

whether the accused has come forward to make the confession in an

atmosphere free from fear, duress or hope of some advantage or reward

induced by the persons in authority. Recognizing the stark reality of the

accused being enveloped in a state of fear and panic, anxiety and despair while

in police custody, the Indian Evidence Act has excluded the admissibility of a

confession made to the police officer.

Section 164 of Cr.P.C. is a salutary provision which lays down certain

precautionary rules to be followed by the Magistrate recording a confession so

as to ensure the voluntariness of the confession and the accused being placed

in a situation free from threat or influence of the police.

Before we turn our attention to the more specific aspects of confessions

under POTA, we should have a conspectus of the law on the evidentiary value

of confessions which are retracted - which is a general feature in our country

and elsewhere.

As to what should be the legal approach of the Court called upon to

convict a person primarily in the light of the confession or a retracted

confession has been succinctly summarized in Bharat vs. State of U.P.

[1971 (3) SCC 950]. Hidayatullah, C.J., speaking for a three-Judge Bench

observed thus:

"Confessions can be acted upon if the court is satisfied that they

are voluntary and that they are true. The voluntary nature of the

confession depends upon whether there was any threat,

inducement or promise and its truth is judged in the context of the

entire prosecution case. The confession must fit into the proved

facts and not run counter to them. When the voluntary character

of the confession and its truth are accepted, it is safe to rely on it.

Indeed a confession, if it is voluntary and true and not made

under any inducement or threat or promise, is the most patent

piece of evidence against the maker. Retracted confession,

however, stands on a slightly different footing. As the Privy

Council once stated, in India it is the rule to find a confession and

to find it retracted later. A court may take into account the

retracted confession, but it must look for the reasons for the

making of the confession as well as for its retraction, and must

weigh the two to determine whether the retraction affects the

voluntary nature of the confession or not. If the court is satisfied

that it was retracted because of an after-thought or advice, the

retraction may not weigh with the court if the general facts proved

in the case and the tenor of the confession as made and the

circumstances of its making and withdrawal warrant its user. All

the same, the courts do not act upon the retracted confession

without finding assurance from some other sources as to the guilt

of the accused. Therefore, it can be stated that a true confession

made voluntarily may be acted upon with slight evidence to

corroborate it, but a retracted confession requires the general

assurance that the retraction was an after-thought and that the

earlier statement was true. This was laid down by this Court in an

earlier case reported in Subramania Gounden v. The State of

Madras (1958 SCR 428)."

The same learned Judge observed in Haroom Hazi Abdulla v. State of

Maharashtra [1968 (2) SCR 641] that a "retracted confession must be

looked upon with greater concern unless the reasons given for having made it

in the first instance are on the face of them false." There was a further

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observation in the same paragraph that retracted confession is a weak link

against the maker and more so against a co-accused. With great respect to

the eminent Judge, the comment that the retracted confession is a "weak link

against the maker" goes counter to a series of decisions. The observation

must be viewed in the context of the fact that the Court was concentrating on

the confession of the co-accused rather than the evidentiary value of the

retracted confession against the maker.

Dealing with retracted confession, a four-Judge Bench of this Court

speaking through Subba Rao, J, in Pyare Lal v. State of Assam (AIR 1957

SC 216), clarified the legal position thus:

"A retracted confession may form the legal basis of a conviction if

the court is satisfied that it was true and was voluntarily made.

But it has been held that a court shall not base a conviction on

such a confession without corroboration. It is not a rule of law,

but is only rule of prudence. It cannot even be laid down as an

inflexible rule of practice or prudence that under no circumstances

such a conviction can be made without corroboration, for a court

may, in a particular case, be convicted of the absolute truth of a

confession and prepared to act upon it without corroboration; but

it may be laid down as a general rule of practice that it is unsafe

to rely upon a confession, much less on a retracted confession,

unless the court is satisfied that the retracted confession is true

and voluntarily made and has been corroborated in material

particulars."

As to the extent of corroboration required, it was observed in

Subramania Gounden's case (1958 SCR 428) that each and every

circumstance mentioned in the retracted confession regarding the complicity of

the maker need not be separately and independently corroborated. The

learned Judges observed :

"it would be sufficient in our opinion that the general trend of the

confession is substantiated by some evidence which would tally

with what is contained in the confession".

Then we have the case of Shankaria v. State of Rajasthan [1978 (3)

SCC 435] decided by a three-Judge Bench. Sarkaria, J, noted the twin tests

to be applied to evaluate a confession: (1) whether the confession was

perfectly voluntary and (2) if so, whether it is true and trustworthy. The

learned Judge pointed out that if the first test is not satisfied the question of

applying the second test does not arise. Then the Court indicated one broad

method by which a confession can be evaluated. It was said:

"The Court should carefully examine the confession and compare it

with the rest of the evidence, in the light of the surrounding

circumstances and probabilities of the case. If on such examination

and comparison, the confession appears to be a probable catalogue

of events and naturally fits in with the rest of the evidence and the

surrounding circumstances, it may be taken to have satisfied the

second test."

In Parmanand Pegu v. State of Assam [2004 (7) SCC 779] this

Court while adverting to the expression "corroboration of material particulars"

used in Pyare Lal Bhargava's case clarified the position thus:

"By the use of the expression 'corroboration of material

particulars', the Court has not laid down any proposition contrary

to what has been clarified in Subramania Goundan case as

regards the extent of corroboration required. The above

expression does not imply that there should be meticulous

examination of the entire material particulars. It is enough that

there is broad corroboration in conformity with the general trend

of the confession, as pointed out in Subramania Goundan case."

The analysis of the legal position in paragraphs 18 & 19 is also worth

noting:

"Having thus reached a finding as to the voluntary nature of a

confession, the truth of the confession should then be tested by

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the court. The fact that the confession has been made voluntarily,

free from threat and inducement, can be regarded as presumptive

evidence of its truth. Still, there may be circumstances to indicate

that the confession cannot be true wholly or partly in which case it

loses much of its evidentiary value.

In order to be assured of the truth of confession, this Court, in a

series of decisions, has evolved a rule of prudence that the court

should look to corroboration from other evidence. However, there

need not be corroboration in respect of each and every material

particular. Broadly, there should be corroboration so that the

confession taken as a whole fits into the facts proved by other

evidence. In substance, the court should have assurance from all

angles that the retracted confession was, in fact, voluntary and it

must have been true."

The use of retracted confession against the co-accused however stands

on a different footing from the use of such confession against the maker.

To come to the grips of the law on the subject, we do no more than

quoting the apt observations of Vivian Bose, J, speaking for a three-Judge

Bench, in Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC

159). Before clarifying the law, the learned Judge noted with approval the

observations of Sir Lawrence Jenkins that a confession can only be used to

"lend assurance to other evidence against a co-accused." The legal position

was then stated thus:

"Translating these observations into concrete terms they come to

this. The proper way to approach a case of this kind is, first to

marshall 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 set 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."

The crucial expression used in Section 30 is "the Court may take into

consideration such confession". These words imply that the confession of a co-

accused cannot be elevated to the status of substantive evidence which can

form the basis of conviction of the co-accused. The import of this expression

was succinctly explained by the Privy Council in Bhuboni Sahu vs. King (AIR

1947 PC 257) in the following words:

"The Court may take the confession into consideration and

thereby, no doubt, makes its evidence on which the Court may

act; but the section does not say that the confession is to amount

to proof. Clearly there must be other evidence. The confession is

only one element in the consideration of all the facts proved in the

case; it can be put into the scale and weighed with the other

evidence".

(emphasis supplied)

After referring to these decisions, a Constitution Bench of this Court in

Haricharan Kurmi v. State of Bihar [1964 (6) SCR 623] further clarified

the legal position thus:

"\005\005.In dealing with a case against an accused person, the Court

cannot start with the confession of 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 confession of guilt which the

judicial mind is about to reach on the said other evidence."

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(emphasis supplied)

What is the legal position relating to CONFESSIONS UNDER THE POTA is

the next important aspect.

Following the path shown by its predecessor, namely TADA Act, POTA

marks a notable departure from the general law of evidence in that it makes

the confession to a high ranking police officer admissible in evidence in the trial

of such person for the offence under POTA. As regards the confession to the

police officer, the TADA regime is continued subject to certain refinements.

Now, let us take stock of the provisions contained in Section 32 of POTA.

Sub-Section of (1) of this Section starts with a non obstante provision with the

words "Notwithstanding anything in the Code of Criminal Procedure or in the

Indian Evidence Act\005.." Then it says: "a confession made by a person before a

police officer not lower in rank than a Superintendent of Police and recorded by

such police officer either in writing or on any mechanical or electronic device\005.

shall be admissible in the trial of such person for an offence under the Act or

the rules, subject to other provisions of the section". By this provision, the ban

against the reception of confessional statements made to the police is lifted.

That is why the non-obstante clause. This sub-section is almost identical to

Section 15(1) of TADA excepting that the words "or co-accused, abettor or

conspirator occurring after the expression "in the trial of such person" were

omitted. The other four sub-sections (2) to (5) of Section 32 are meant to

provide certain safeguards to the accused in order to ensure that the

confession is not extracted by threat or inducement. Sub-section (2) says that

the police officer, before recording a confession should explain in writing to the

person concerned that he is not bound to make a confession and that the

confession if made by him can be used against him. The right of the person to

remain silent before the police officer called upon to record the confession is

recognized by the proviso to sub-section (2). Sub-section (3) enjoins that the

confession shall be recorded in a threat-free atmosphere. Moreover, it should

be recorded in the same language as that used by the maker of the confession.

The most important safeguard provided in sub-sections (4) & (5) is that the

person from whom the confession was recorded is required to be produced

before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48

hours, together with the original statement of confession in whatever manner it

was recorded. The CMM or the CJM shall then record the statement made by

the person so produced. If there is any complaint of torture, the police shall be

directed to produce the person for medical examination and thereafter he shall

be sent to the judicial custody.

9. Section 15 of TADA

It is necessary to advert to the exposition of law on the probative quality

of the confession recorded by the empowered police officer under Section 15 of

TADA Act. We may recall that under Section 15, the confession is admissible in

the trial of the person who made the confession or the co-

accused/abettor/conspirator. In State vs. Nalini (supra), Thomas, J took the

view that the confession coming within the purview of Section 15 is a

substantive evidence as against the maker thereof but it is not so as against

the co-accused/abettor or conspirator in relation to whom it can be used only

as a corroborative piece of evidence. Wadhwa, J, held that the confession of

an accused serves as a substantive evidence against himself as well as against

the co-accused, abettor or conspirator. S.S.M. Quadri, J, broadly agreed with

the view taken by Wadhwa, J. The following observations made by the learned

Judge reflect his view-point:

"On the language of sub-section (1) of Section 15, a confession of

an accused is made admissible evidence as against all those tried

jointly with him, so it is implicit that the same can be considered

against all those tried together. In this view of the matter also,

Section 30 of the Evidence Act need not be invoked for

consideration of confession of an accused against a co-accused,

abettor or conspirator charged and tried in the same case along

with the accused."

The learned Judge further observed that in view of the non obstante provision

of Section 15(1), the application of Section 30 of the Evidence Act should be

excluded and therefore the considerations germane to Section 30 cannot be

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imported in construing Section 15(1). Quadri, J, therefore dissented from the

view taken by Thomas, J. At the same time the learned Judge was of the

view that in so far as the use of confession against the co-accused is

concerned, rule of prudence requires that it should not be relied upon "unless

corroborated generally by other evidence on record". In paragraph 705, the

learned Judge made the following observations:

"But I wish to make it clear that even if confession of an accused

as against a co-accused tried with the accused in the same case is

treated as 'substantive evidence' understood in the limited sense

of fact in issue or relevant fact, the rule of prudence requires that

the court should examine the same with great care keeping in

mind the caution given by the Privy Council in Bhuboni Sahu

case",

keeping in view the fact that the confession of a co-accused is not required to

be given under oath and its veracity cannot be tested by cross-examination is

yet another reason given by the learned Judge for insisting on such

corroboration. Thus the learned Judge struck a balance between two extreme

arguments. The view taken by Quadri, J. does not seem to conflict with the

view of Wadhwa, J. Though Wadhwa, J. observed that confession of the

accused is admissible with the same force in its application to the co-accused

and it is in the nature of substantive evidence, the learned Judge, however,

qualified his remarks by observing thus:

`"Substantive evidence, however, does not necessarily mean

substantial evidence. It is the quality of evidence that matters.

As to what value is to be attached to a confession will fall within

the domain of appreciation of evidence. As a matter of prudence,

the court may look for some corroboration if confession is to be

used against a co-accused though that will again be within the

sphere of appraisal of evidence."

Thomas, J. was of the view that the non-obstante words in Section 15(1) of

TADA were not intended to make it substantive evidence against the non-

maker, and it can be used only as a piece of corroborative material to support

other substantive evidence.

Reference is to be made to a recent decision of this Court in Jameel

Ahmed & anr. V. State of Rajasthan [2003 (9) SCC 673] \026 a case arising

under TADA. After a survey of the earlier cases on the subject, this Court

observed: "If the confessional statement is properly recorded satisfying the

mandatory provisions of Section 15 of TADA Act and the rules made

thereunder and if the same is found by the Court as having been made

voluntarily and truthfully then the said confession is sufficient to base

conviction of the maker of the confession." This proposition is

unexceptionable. The next proposition, however, presents some difficulty. The

learned Judges added: "Whether such confession requires corroboration or not,

is a matter for the Court considering such confession on facts of each case."

This Court observed that once the confessional statement becomes admissible

in evidence then, like any other evidence, "it is for the Court to consider

whether such statement can be relied upon solely or with necessary

corroboration." The ratio behind the view taken by the learned Judges is

perhaps discernible from the following passage:

"We have already noticed that this provision of law is a departure

from the provisions of Sections 25 to 30 of the Evidence Act. As a

matter of fact, Section 15 of the TADA Act operates independent

of the Evidence Act and the Code of Criminal Procedure."

The Court then observed that the confession duly recorded under Section

15 of TADA Act becomes admissible in evidence by virtue of statutory mandate

and if it is proved to be voluntary and truthful in nature there is no reason why

such a statement should be treated as a weak piece of evidence requiring

corroboration merely because the same is recorded by a police officer. We

have to add a caveat here, while wholeheartedly accepting the view that the

confession recorded by a police officer under Section 15(1) of TADA Act

(corresponding to Section 32(1) of POTA) stand on the same footing as the

confession recorded by a Magistrate and the Court can act upon it in spite of its

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retraction if it inspires confidence in the mind of the Judge, we feel that the

rule of corroboration evolved by this Court as a matter of prudence in relation

to a retracted confession recorded by a Magistrate under Cr.P.C. need not be

dispensed with. Viewing the confession in the light of other evidence on record

and seeking corroborative support therefrom is only a process of ascertaining

the truth of the confession and is not extraneous to the first proposition laid

down by their Lordships in paragraph 35. Viewed from another angle, we

wonder whether a confession recorded by a police officer under the special

enactment should have more sanctity and higher degree of acceptability so as

to dispense with the normal rule of corroboration and leave it to the discretion

of the court whether to insist on corroboration or not, even if it is retracted.

The better view would be to follow the same rule of prudence as is being

followed in the case of confessions under general law. The confessional

statement recorded by the police officer can be the basis of conviction of the

maker, but it is desirable to look to corroboration in a broad sense, when it is

retracted. The non obstante provision adverted to by the learned Judges

should not, in our considered view, affect the operation of the general rule of

corroboration broadly.

As regards the confession being used against a co-accused, this Court in

Jameel Ahmed's case (supra), laid down the following propositions:

"(iii) In regard to the use of such confession as against a co-

accused, it has to be held that as a matter of caution, a general

corroboration should be sought for but in cases where the court is

satisfied that the probative value of such confession is such that it

does not require corroboration then it may base a conviction on

the basis of such confession of the co-accused without

corroboration. But this is an exception to the general rule of

requiring corroboration when such confession is to be used against

a co-accused.

(iv) The nature of corroboration required both in regard to the use

of confession against the maker as also in regard to the use of the

same against a co-accused is of a general nature, unless the court

comes to the conclusion that such corroboration should be on

material facts also because of the facts of a particular case. The

degree of corroboration so required is that which is necessary for

a prudent man to believe in the existence of facts mentioned in

the confessional statement."

While we agree with the proposition that the nature of corroboration

required both in regard to the use of confession against the maker and the co-

accused is general in nature, our remarks made earlier in relation to the

confession against the maker would equally apply to proposition No.(iii) in so

far as it permits the Court in an appropriate case to base the conviction on the

confession of the co-accused without even general corroboration. We would

only add that we do not visualize any such appropriate case for the simple

reason that the assurance of the truth of confession is inextricably mixed up

with the process of seeking corroboration from the rest of the prosecution

evidence. We have expressed our dissent to this limited extent. In the normal

course, a reference to the larger Bench on this issue would be proper. But

there is no need in this case to apply or not to apply the legal position clarified

in proposition No.(iii) for the simple reason that the trial court as well as the

High Court did look for corroboration from the circumstantial evidence relating

to various facts narrated in the confessional statement. Perhaps, the view

expressed by us would only pave the way for a fresh look by a larger Bench,

should the occasion arise in future.

The learned senior counsel Mr. Ram Jethmalani severely criticised the

view taken in Nalini, Jameel Ahmed and other cases decided after Nalini. He

pointed out that the confession of a co-accused is held to be admissible in view

of the expression "shall be admissible in the trial of such person or co-

accused". But, the legislature did not intend that in deviation of the general

law, the confession of a co-accused could become the sole basis of conviction

irrespective of whether it is corroborated in relation to material particulars or

not. The counsel commends the acceptance of the ratio laid down by Privy

Council in Bhuboni Sahu in the context of a confession covered by Section 30

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of Evidence Act. The counsel reminds us that admissibility is one thing, and the

weight to be attached to the evidence is another. The learned counsel Mr. Ram

Jethmalani repeatedly pointed that the crucial observations of the Constitution

Bench in Kartar Singh's case (supra) were not noticed by this Court in

Nalini's case and this error, according to the learned senior counsel,

perpetuated. The learned counsel has drawn our attention to the categorical

observation of this Court in paragraph 255 of the majority judgment to the

effect that "the present position is in conformity with Section 30 of the

Evidence Act." He has also drawn our attention to the submission of the

learned Additional Solicitor General in Kartar Singh's case that the probative

value of the confession recorded under Section 15 should be left to the Court

to be determined in each case on its own facts and circumstances. According to

the learned counsel, the confession of co-accused should not have been

elevated to the status of confession operating against the maker. The

contention advanced by the learned senior counsel is not without force.

However, we need not dilate further on this aspect as the terminology in POTA

is different and the view which we hold is that Section 32 of POTA does not

enable the Court to take into account the confession of the co-accused. We

shall now advert to this aspect, on a comparative reference of the provisions of

TADA Act and POTA.

10. Use of confession under POTA against co-accused

Now, let us examine the question whether Section 32(1) of POTA takes

within its sweep the confession of a co-accused. Section 32(1) of POTA which

makes the confession made to a high ranking police officer admissible in the

trial does not say anything explicitly about the use of confession made by co-

accused. The words in the concluding portion of Section 32(1) are: "shall be

admissible in the trial of such person for an offence under this Act or rules

made thereunder." It is, however, the contention of the learned Senior

Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to

include the admissibility of confessions of co-accused as well. The omission of

the words in POTA "or co-accused, abettor or conspirator" following the

expression "in the trial of such person" which are the words contained in

Section 15(1) of TADA does not make material difference, according to him. It

is his submission that the words 'co-accused' etc. were included by the 1993

amendment of TADA by way of abundant caution and not because the

unamended Section of TADA did not cover the confession of co-accused.

According to the learned senior counsel, the phrase "shall be admissible in the

trial of such person" does not restrict the admissibility only against the maker

of the confession. It extends to all those who are being tried jointly along with

the maker of the confession provided they are also affected by the confession.

The learned senior counsel highlights the crucial words-"in the trial of such

person" and argues that the confession would not merely be admissible

against the maker but would be admissible in the trial of the maker which may

be a trial jointly with the other accused persons. Our attention has been

drawn to the provisions of Cr.P.C. and POTA providing for a joint trial in which

the accused could be tried not only for the offences under POTA but also for

the offences under IPC. We find no difficulty in accepting the proposition that

there could be a joint trial and the expression "the trial of such person" may

encompass a trial in which the accused who made the confession is tried

jointly with the other accused. From that, does it follow that the confession

made by one accused is equally admissible against others, in the absence of

specific words? The answer, in our view, should be in the negative. On a plain

reading of Section 32(1), the confession made by an accused before a police

officer shall be admissible against the maker of the confession in the course of

his trial. It may be a joint trial along with some other accused; but, we cannot

stretch the language of the section so as to bring the confession of the co-

accused within the fold of admissibility. Such stretching of the language of

law is not at all warranted especially in the case of a law which visits a

person with serious penal consequences (vide the observations of Ahmadi, J

(as he then was) in Niranjan Singh vs. Jitendra [(1990) 4 SCC 76] at

page 86, which were cited with approval in Kartar Singh's case). We would

expect a more explicit and transparent wording to be employed in the section

to rope in the confession of the co-accused within the net of admissibility on

par with the confession of the maker. An evidentiary rule of such importance

and grave consequence to the accused could not have been conveyed in a

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deficient language. It seems to us that a conscious departure was made by

the framers of POTA on a consideration of the pros and cons, by dropping the

words "co-accused" etc.. These specific words consciously added to Section

15(1) by 1993 amendment of TADA so as to cover the confessions of co-

accused would not have escaped the notice of Parliament when POTA was

enacted. Apparently, the Parliament in its wisdom would have thought that

the law relating to confession of co-accused under the ordinary law of

evidence, should be allowed to have its sway, taking clue from the

observations in Kartar Singh's case at paragraph 255. The confession

recorded by the police officer was, therefore, allowed to be used against the

maker of the confession without going further and transposing the legal

position that obtained under TADA. We cannot countenance the contention

that the words 'co-accused' etc. were added in Section 15(1) of TADA, ex

majore cautela.

We are, therefore, of the view that having regard to all these weighty

considerations, the confession of a co-accused ought not be brought within the

sweep of Section 32(1). As a corollary, it follows that the confessions of the 1st

and 2nd accused in this case recorded by the police officer under Section 32(1),

are of no avail against the co-accused or against each other. We also agree

with the High Court that such confessions cannot be taken into consideration by

the Court under Section 30 of the Indian Evidence Act. The reason is that the

confession made to a police officer or the confession made while a person is in

police custody, cannot be proved against such person, not to speak of the co-

accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If

there is a confession which qualifies for proof in accordance with the provisions

of Evidence Act, then of course, the said confession could be considered against

the co-accused facing trial under POTA. But, that is not the case here.

For these reasons, the contention of the learned senior counsel for the

State that even if the confession of co-accused is not covered by Section 32(1),

it can still be taken into account by the Court under Section 30 for the limited

purpose of corroborating or lending assurance to the other evidence on record

cannot be accepted.

Learned senior counsel appearing for the State submits that there is no

conflict between Section 32 of POTA and Section 30 of the Evidence Act and

therefore the confession recorded under Section 32(1) of POTA can be taken

into consideration against the co-accused, at least to corroborate the other

evidence on record or to lend assurance thereto. There is no difficulty in

accepting the contention that Section 30 of the Evidence Act can also play its

part in a case of trial under POTA, especially when the other offences under the

IPC are also the subject matter of trial. But a confession to the police officer by

a person in police custody is not within the realm of Section 30 of the Evidence

Act and therefore such a confession cannot be used against the co-accused even

under Section 30 of the Evidence Act.

While on the subject of confession made to a police officer under sub-

section (1) of Section 32 of POTA, it would be apposite to refer in brief to the

decision of this Court in Kartar Singh v. State of Punjab [1994 (3) SCC

569]. The constitutional validity of the provisions of TADA Act came up for

consideration before the Constitution Bench. Section 15(1) of TADA Act was the

main target of attack. The majority of Judges, with Ratnavel Pandian, J, leading

them, upheld the provisions of the Act including Section 15(1). There was a

weighty dissent by two learned Judges (K. Ramaswamy, J. and R.M. Sahai, J.)

as regards the validity of Section 15(1). The constitutional issue of the vires of

the impugned provisions of TADA, including Section 15(1), was examined from

the perspective of Articles 14 and 21 of the Constitution, that is to say, from the

standpoint of classification of offenders and justness and fairness of the

procedural provisions. The three learned Judges did not find Section 15(1)

obnoxious to Article 14 or Article 21, though they took judicial notice of the

inhuman treatment often meted out by overzealous police officers and the

archaic, third degree methods adopted by them during the investigation of the

cases. In upholding the validity, the Court took into account the legal

competence of the legislature to make a law prescribing a different mode of

proof, the meaningful purpose and object of the legislation, the gravity and

consequences of terrorism and the reluctance of the public in coming forward to

give evidence. How far these considerations are relevant in providing for the

reception in evidence of the confessional statement recorded by a police officer

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has not been elaborated. Apparent hesitation of the learned Judges in

upholding the most criticized provision, namely Section 15(1) of TADA, is

reflected in the set of guidelines set out by their Lordships at paragraph 263 to

ensure as far as possible that the confession obtained by the police officer is not

tainted with any vice and to impart a process of fairness into the exercise of

recording the confession. The Central Government was bidden to take note of

the guidelines and incorporate necessary amendments to the Act. These

guidelines, by and large, have become part of Section 32 of POTA to which we

have already referred. There was also an exhortation at paragraph 254 to the

high-ranking police officers empowered to record the confession that there

should be no breach of the accepted norms of recording the confession which

should reflect only a true and voluntary statement and there should be no room

for hyper criticism that the authority has obtained an invented confession.

Another interesting part of the discussion is the manner in which the Court gave

its response to the critical comments made by the counsel as to the

reprehensible methods adopted to extract the confession. The learned Judges

said with reference to this comment: "if it is shown to the Court that a

confession was extorted by illegal means such as inducement, threat or

promise, the confession thus obtained would be irrelevant and cannot be used in

a criminal proceeding against the maker." The Court thus merely emphasized

the obvious and added a remark that the Court on several occasions awarded

exemplary compensation to the victim at the hands of the police officials. The

Court took the precaution of clarifying that the police officer investigating the

case under TADA Act can get the confession or statement of the accused

recorded under Section 164 Cr.P.C. by a Magistrate.

The Constitution Bench Judgement is binding on us. In fact, the ratio of

that Judgment applies with greater force to the POTA, as the guidelines set out

by the Constitution Bench are substantially incorporated into Section 32. It is

perhaps too late in the day to seek reconsideration of the view taken by the

majority of the Judges in the Constitution Bench. But as we see Section 32, a

formidable doubt lingers in our minds despite the pronouncement in Kartar

Singh's case (supra). That pertains to the rationale and reason behind the

drastic provision, making the confession to police officer admissible in evidence

in a trial for POTA offences. Many questions do arise and we are unable to find

satisfactory or even plausible answers to them. If a person volunteers to make a

confession, why should he be not produced before the Judicial Magistrate at the

earliest and have the confession recorded by a Magistrate? The Magistrate

could be reached within the same time within which the empowered police

officer could be approached. The doubt becomes more puzzling when we notice

that in practical terms, a greater degree of credibility is attached to a confession

made before the judicial officer. Then, why should not the Investigating Officer

adopt the straightforward course of having resort to the ordinary and age-old

law? If there is any specific advantage of conferring power on a police officer

to record the confession receivable in evidence, if the intendment and

desideratum of the provision indisputably remains to be to ensure an

atmosphere free from threats and psychological pressures? Why the circuitous

provision of having confession recorded by the police officer of the rank of S.P.

(even if he be the immediate superior of the I.O. who oversees the

investigation) and then requiring the production of the accused before the Chief

Metropolitan or Judicial Magistrate within 48 hours? We can understand if the

accused is in a remote area with no easy means of communications and the

Magistrate is not easily accessible. Otherwise, is there real expediency or good

reason for allowing an option to the I.O. to have the confession recorded either

by the superior police officer or a Judicial Magistrate? We do not think that the

comparative ease with which the confession could be extracted from the

accused could be pleaded as justification. If it is so, should the end justify the

means? Should the police officer be better trusted than a Magistrate? Does the

magnitude and severity of the offence justify the entrustment of the job of

recording confession to a police officer? Does it imply that it is easier to make

an accused confess the guilt before a police officer so that it could pave the way

for conviction in a serious offence? We find no direct answer to these questions

either in Kartar Singh's case (supra) or the latest case of People's Union for

Civil Liberties vs. Union of India [2004 (9) SCC 580].

The quality of a nation's civilization can be largely measured by the

methods it uses in the enforcement of its criminal law, as said by the eminent

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American jurist Schaefer. We may recall as well the apt remarks of Krishna Iyer,

J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC 424]:

"The first obligation of the criminal justice system is to secure

justice by seeking and substantiating truth through proof. Of

course, the means must be as good as the ends and the dignity of

the individual and the freedom of the human person cannot be

sacrificed by resort to improper means, however worthy the ends.

Therefore, 'third degree' has to be outlawed and indeed has been.

We have to draw up clear lines between the whirlpool and the rock

where the safety of society and the worth of the human person

may co-exist in peace."

In People's Union for Civil Liberties case, a two Judge Bench of this

Court upheld the constitutional validity of Section 32 following the

pronouncement in Kartar Singh's case. The learned Judges particularly noted

the 'additional safeguards' envisaged by sub-Sections (4) and (5) of Section 32.

The court referred to the contention that there was really no need to empower

the police officer to record the confession since the accused has to be in any

case produced before the Magistrate and in that case the Magistrate himself

could record the confession. This argument was not dealt with by their

Lordships. However, we refrain from saying anything contrary to the legal

position settled by Kartar Singh and People's Union for Civil Liberties. We

do no more than expressing certain doubts and let the matter rest there.

It has been pointed out to us that even in advanced countries like U.K.

and U.S.A., where individual liberty is given primacy, there is no legal taboo

against the reception of confessional statement made to police in evidence.

We do not think that it is apt to compare the position obtaining in those

countries to that in India. The ground realities cannot be ignored. It is an

undeniable fact that the police in our country still resort to crude methods of

investigation, especially in mofussil and rural areas and they suffer many

handicaps, such as lack of adequate personnel, training, equipment and

professional independence. These features, by and large, are not so rampant

in those advanced countries. Considered from the standpoint of scientific

investigation, intensity of training and measure of objectivity, the standards

and approaches of police personnel are much different in those countries. The

evils which the framers of the Indian Evidence Act had in mind to exclude

confessions to the police, are still prevalent though not in the same degree.

After independence, no doubt, some positive steps have been taken to

improve the working pattern, utility and image of the police force, but, much

desires to be achieved in this direction. Complaints of violation of human rights

by resorting to dubious methods of investigation, politicization of the police

establishment and victimization of the straightforward and honest officers are

some of the criticisms that are being heard day in and day out. Even many

amongst the public tacitly endorse the use of violence by police against the

criminals. In this scenario, we have serious doubts whether it would be safe to

concede the power of recording confessions to the police officers to be used in

evidence against the accused making the confession and the co-accused.

The Law Commission of India in its 185th Report on review of the Indian

Evidence Act has expressed strong views disfavouring the admission of

confessions made to Police Officers. The Commission commented that the

basis for introducing Sections 25 and 26 in the Evidence Act in 1872 holds

good even today. The Commission observed\027"we are compelled to say that

confessions made easy, cannot replace the need for scientific and professional

investigation".

In England, even though the confessions to the police can be received in

evidence the voluntariness of the confessions are tested by adopting stringent

standards. Section 76 of the Police and Criminal Evidence Act, 1984, deals

with confession in England. Sub-section (2) of Section 76 is important:

"(2) If, in any proceedings where the prosecution proposes to give

in evidence a confession made by an accused person, it is

represented to the court that the confession was or may have

been obtained-

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in

the circumstances existing at the time, to render unreliable

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any confession which might be made by him in consequence

thereof,

the court shall not allow the confession to be given in evidence

against him except in so far as the prosecution proves to the court

beyond reasonable doubt that the confession (notwithstanding

that it may be true) was not obtained as aforesaid."

Thus the prosecution has to prove beyond reasonable doubt that the

confession was made voluntarily and was reliable.

The Court of Appeal decision in Regina vs. Middleton (1975 All E.R.

191) shows that whenever the admissibility of a confession is challenged "a

trial within a trial" is conducted to test the voluntariness of such confession at

the earliest. In England, in the light of the Human Rights Act of 1988, a fresh

look is being taken into the existing provisions of the Police and Criminal

Evidence Act and other allied laws including the Law of Confessions.

In United States, according to the decisions of the Supreme Court viz.,

Miranda Vs. Arizona [384 US 436]; Escobedo Vs. Linnaeus [378 US

478], the prosecution cannot make use of the statements stemming from

custodial interrogation unless it demonstrates the use of procedural safeguards

to secure the right against self-incrimination and these safeguards include a

right to counsel during such interrogation and warnings to the suspect/accused

of his right to counsel and to remain silent. In Miranda case (decided in

1966), it was held that the right to have counsel present at the interrogation

was indispensable to the protection of the V Amendment privilege against self-

incrimination and to ensure that the right to choose between silence and

speech remains unfettered throughout the interrogation process. However, this

rule is subject to the conscious waiver of right after the individual was warned

of his right.

As the law now stands, the confession recorded by the police officer

under Section 32(1) of POTA is admissible in evidence. The voluntariness and

reliability of confession can of course be tested by the court. The admission of

such confession would also be subject to the observance of the other

provisions of Section 32 of POTA which are in the nature of procedural

safeguards aimed at ensuring that the confessions are made by the accused in

an atmosphere free from threat and inducement.

There is one argument of Mr. Sushil Kumar appearing for the accused

Afzal which needs to be adverted to. His contention is that the word 'evidence'

is not used either under Section 32(1) or Section 32(2) of POTA unlike Section

15(2) of TADA which requires the Police Officer to warn the person making the

confession that it may be used as 'evidence' against him. He therefore argues

that the only route through which the confession can be treated as evidence

against the accused is by having recourse to Section 164 Cr.P.C. The

contention, in our view, is devoid of merit. The mere fact that the expression

'admissible only' is used without being followed by the words 'in evidence',

does not, by any canon of construction, deprive the confession recorded under

Section 32 of POTA its evidentiary value; otherwise Section 32(1), more

especially the expression 'admissible' contained therein will become ineffectual

and senseless. We cannot, therefore, accept this extreme contention.

11. Section 10 of Evidence Act

The next question is whether the confession of the accused which cannot

be proved against a co-accused either under Section 32(1) of POTA or under

Section 30 of the Evidence Act, would be relevant evidence against the co-

accused involved in the conspiracy by reason of Section 10 of the Evidence

Act. The section reads thus:

"10. Things said or done by conspirator in reference to common

design.- 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

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."

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In Kehar Singh & ors. vs. State (Delhi Administration) [1988 (3)

SCC 609], Jagannatha Shetty, J., has analysed the section as follows:

"From an analysis of the section, it will be seen that Section 10

will come into play only when the court is satisfied that there is

reasonable ground to believe that two or more persons have

conspired together to commit an offence. There should be, in

other words, a prima facie evidence that the person was a party to

the conspiracy before his acts can be used against his co-

conspirator. Once such prima facie evidence exists, anything said,

done or written by one of the conspirators in reference to the

common intention, after the said intention was first entertained, is

relevant against the others. It is relevant not only for the purpose

of proving the existence of conspiracy, but also for proving that

the other person was a party to it."

Section 10 of Evidence act is based on the principle of agency operating

between the parties to the conspiracy inter se and it is an exception to the rule

against hearsay testimony. If the conditions laid down therein are satisfied,

the act done or statement made by one is admissible against the co-

conspirators (vide AIR 1965 SC 682).

The learned senior counsel Mr. Gopal Subramanium submits that Section

10, which is an exception to Section 30 of the Evidence Act, can be availed of

by the prosecution to rely on the facts stated in the confessional statement of

the accused to prove the existence of conspiracy and the co-conspirator being

party to it. He contends that there is more than prima facie evidence in this

case that there was a conspiracy to launch an attack on the Parliament

building and therefore, the first ingredient of the reasonable ground of belief is

satisfied. The next and more controversial part of the submission is that the

statement of one of the conspirators who has made the confession throwing

light on the common intention of all the accused can be used in evidence

against the co-conspirators or the co-accused irrespective of the fact that such

statements were made after the conclusion of the conspiracy and after the

accused were arrested. As the law laid down by the Privy Council in Mirza

Akbar vs. King Emperor (AIR 1940 PC 176) on the interpretation of

Section 10 does not support the contention of the counsel for the State, the

learned counsel was critical of the dictum laid down in that case and equally

critical of the long line of authorities which accepted the ruling of the Privy

Council. This is what Lord Wright said in Mirza Akbar's case:

"This being the principle, their Lordships think the words of

Section 10 must be construed in accordance with it and are not

capable of being widely construed so as to include a statement

made by one conspirator in the absence of the other with

reference to past acts done in the actual course of carrying out the

conspiracy, after it has been completed. The common intention is

in the past. In their Lordships' judgment, the words 'common

intention' signify a common intention existing at the time when

the thing was said, done or written by one of them. Things said,

done or written while the conspiracy was on foot are relevant as

evidence of the common intention, once reasonable ground has

been shown to believe in its existence. But it would be a very

different matter to hold that any narrative or statement or

confession made to a third party after the common intention or

conspiracy was no longer operating and had ceased to exist is

admissible against the other party. There is then no common

intention of the conspirators to which the statement can have

reference. In their Lordships' judgment Section 10 embodies this

principle. That is the construction which has been rightly applied

to Section 10 in decisions in India.

\005 \005 \005 \005

In these cases the distinction was rightly drawn between

communications between conspirators while the conspiracy was

going on with reference to the carrying out of conspiracy and

statements made, after arrest or after the conspiracy has ended,

by way of description of events then past."

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In Sardul Singh Caveeshar vs. State of Bombay (1958 SCR 161), a

three-Judge Bench of this Court approvingly referred to the decision of the

Privy Council. However, the following observation made therein does not go

counter to the submission of Mr. Subramanium:

"where the charge specified the period of conspiracy, evidence of

acts of co-conspirators outside the period is not receivable in

evidence".

But, the ultimate conclusion is not strictly in conformity with that remark. After

referring to this and the other decisions, Thomas, J. observed in State of

Gujarat vs. Mohammed Atik and ors. [1998 (4) SCC 351] thus:

"Thus, the principle is no longer res integra that any statement

made by an accused after his arrest, whether as a confession or

otherwise, cannot fall within the ambit of Section 10 of the

Evidence Act."

Referring to the decision in Mohammed Atik's case (supra) and Sardul

Singh Caveeshar (supra), Arijit Pasayat, J., speaking for a three-Judge Bench

in Mohd. Khalid vs. State of West Bengal [2002 (7) SCC 334], stated the

legal position thus:

"We cannot overlook that the basic principle which underlies

Section 10 of the Evidence Act is the theory of agency. Every

conspirator is an agent of his associate in carrying out the object of

the conspiracy. Section 10, which is an exception to the general

rule, while permitting the statement made by one conspirator to be

admissible as against another conspirator restricts it to the

statement made during the period when the agency subsisted.

Once it is shown that a person became snapped out of the

conspiracy, any statement made subsequent thereto cannot be

used as against the other conspirators under Section 10."

Ultimately, the test applied was whether any particular accused continued to

be the member of the conspiracy after his arrest. Though the learned Judge

stated that "similar view was expressed by this Court in State vs. Nalini", we

find no such statement of law in Nalini's case. However, this accidental slip

does not make any difference. The law is thus well settled that the statements

made by the conspirators after they are arrested cannot be brought within the

ambit of Section 10 of the Evidence Act, because by that time the conspiracy

would have ended. If so, the statement forming part of the confessional

statement made to the police officer under Section 32(1) of POTA cannot be

pressed into service by the prosecution against the other co-accused. Thus,

the endeavour to bring the confessional statement of co-accused into the

gamut of evidence through the route of Section 10 is frustrated by a series of

decisions, starting from Mirza Akbar's case (1940).

Learned senior counsel Mr. Gopal Subramanium argued that the view

taken by the Privy Council runs counter to the language of Section 10, and

moreover, if that interpretation is to be adopted, there would hardly be any

evidence which could be admitted under section 10, the reason being that the

statements would necessarily be made by the witnesses after the termination

of conspiracy. The correct interpretation, according to the learned senior

counsel is, whether the statements made by the conspirators testifying to the

common plan, whether confessional or not, relate to the period of conspiracy

or to the period post-termination. The relevance of such statements under

Section 10 cannot be whittled down with reference to the point of time when

the statement was made. The leaned senior counsel, therefore, submits that

the exclusion of post-arrest statements of the conspirators, is not warranted

by the language employed in the section and it makes Section 10 nugatory.

Though, in our view, the Section can still play its role, we find some force in

this contention. But, it is not open to us to upset the view reiterated in a long

line of decisions.

The learned counsel Mr. Gopal Subramanium has also endeavoured to

invoke precedential support for his argument. He referred to Bhagwan

Swarup vs. State of Maharashtra (AIR 1965 SC 682) (known as the 2nd

Caveeshar case) in which Subba Rao, J., speaking for a three-Judge Bench

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analysed the ingredients of Section 10 as follows:-

"(1) There shall be a prima facie evidence affording a reasonable

ground for a Court to believe that two or more persons are

members of a conspiracy, (2) if the said condition is fulfilled,

anything said, done or written by any one of them in reference to

their common intention will be evidence against the other, (3)

anything said, done or written by him should have been said,

done or written by him after the intention was formed by any of

them; (4) it would also be relevant for the said purpose against

another who entered the conspiracy whether it was said, done or

written before he entered the conspiracy or after he left it; and (5)

it can only be used against a co-conspirator and not in his favour."

The limitation inferred by the Privy Council that the acts or statements of

the conspirator should have been made when the conspiracy was afoot was

not imported in to the interpretation of the section. On the other hand, the

proposition No.4 might indicate that even the statement made and acts done

after a person left the conspiracy, could be proved against others. The Privy

Council decision in Mirza Akbar's case was not referred to. The issue as

raised now was not discussed. However, the 1st Caveeshar case (AIR 1957

SC 747) in which the Privy Council's decision was cited, was adverted to. In

the 1st Caveeshar's case also decided by a three Judge Bench (supra), the

ratio of the Privy Council decision in Mirza Akabar's case was approved and

applied.

The learned counsel then referred to the case of Ammini & ors. vs.

State of Kerala [1998 (2) SCC 301], wherein this Court referred to Section

10 of the Evidence Act and observed thus:

"The High Court held as there was reasonable ground to believe

that Ammini and other accused had conspired together and,

therefore, the confession made by A-1 could be used against other

accused also."

There was no reference to the earlier cases which were binding on the

Court. The view of the High Court was merely endorsed. The learned senior

counsel Mr. Gopal Subramanium then submitted that in Nalini's case this

Court admitted the confessional statement made by one of the accused after

his arrest under section 10 of the Evidence Act. But we do not find anything in

that judgment to support this statement. Wadhwa, J on whose judgment

reliance is placed did not say anything contrary to what was laid down in

Mirza Akbar's case. After referring to Mirza Akbar's case, Wadhwa, J.

adverted to the contention that Section 10 becomes inapplicable once the

conspirator is nabbed. The comment of the learned Judge was;

"That may be so in a given case but is not of universal

application. If the object of conspiracy has not been

achieved and there is still agreement to do the illegal act,

the offence of criminal conspiracy is there and Section 10 of

the Evidence Act applies". (vide para 579 of SCC)

Then follows the crucial finding that the prosecution in the present case

has not led any evidence to show that any particular accused continued to be

a member of the conspiracy after he was arrested. It shows that the ultimate

conclusion accords with the view expressed in Mirza Akbar.

At paragraph 581, there is further discussion on the scope of

Section 10. One observation made by the learned Judge in that para needs to

be clarified. The learned Judge observed thus:

"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".

(emphasis supplied)

We do not find any such deeming provision in Section 10. No doubt,

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Section 10 rests on the principle of agency. But, it does not in terms treat

the statements made and acts done by one conspirator as the statements or

acts of all. Section 10 only lays down a rule of relevancy. It says that

anything done or said by one of the conspirators in reference to the common

intention is a relevant fact as against each of the conspirators to prove two

things: (i) existence of the conspiracy and (ii) that they were parties to the

conspiracy. As pointed out by the Privy Council in Mirza Akbar's case, the

thing done, written or spoken in the course of carrying out the conspiracy

"was receivable as a step in the proof of the conspiracy". This dictum was

approvingly referred to in the 1st Caveeshar case (AIR 1957 SC 747).

The learned senior counsel then referred to the decision of this Court in

Tribhuwan vs. State of Maharashtra [1972 (3) SCC 511], in which the

accused examined himself as a witness and his evidence was admitted under

Section 10 of the Evidence Act, mainly on the ground that his deposition could

be subjected to cross-examination. So also in the case of K. Hashim vs.

State of Tamil Nadu, the evidence of co-accused who subsequently became

approver, was admitted under Section 10. These two cases rest on a different

principle and cannot be said to have differed with the view taken in Mirza

Akbar's case.

However, there are two decisions of this Court rendered by two Judge

Benches, which have taken the view that the facts stated in the confessional

statement of one of the accused can be used against the other accused. The

first one is Bhagwandas Keshwani & anr. vs. State of Rajasthan [1974

(4) SCC 611] decided by a two-Judge Bench (M.H. Beg and Y.V.

Chandrachud, JJ), in which Beg, J. observed thus:

"It seems to us that the extreme argument that nothing said or

done by Vishnu Kumar could be taken into account in judging the

guilt of Keshwani when there is a charge for conspiracy under

Section 120B IPC overlooks the provisions of Section 10 of the

Evidence Act\005. At any rate, proof of the fact, even from

admissions of Vishnu Kumar, that false and fictitious cash memos

were prepared due to an agreement between the two accused,

could be used against each accused."

None of the previous decisions were referred to by their Lordships. The

other case is that of State of Maharashtra vs. Damu [2000 (6) SCC 269]

which was also decided by a two Judge Bench. The learned Judges after

analyzing the ingredients of Section 10, held thus:

"In this case there can be no doubt, relying on Ex.88 that there

are reasonable grounds to believe that all the four accused have

conspired together to commit the offences of abduction and

murders of the children involved in this case. So what these

accused have spoken to each other in reference to their common

intention as could be gathered from Ex.88 can be regarded as

relevant facts falling within the purview of Section 10 of the

Evidence Act. It is not necessary that a witness should have

deposed to the fact so transpired between the conspirators. A

dialogue between them could be proved through any other legally

permitted mode. When Ex.88 is legally proved and found

admissible in evidence, the same can be used to ascertain what

was said, done or written between the conspirators. Al the things

reported in that confession referring to what A-1 Damu Gopinath

and A-3 Mukunda Thorat have said and done in reference to the

common intention of the conspirators are thus usable under

Section 10 of the Evidence Act as against those two accused as

well, in the same manner in which they are usable against A-4

Damu Joshi himself."

Thus, the confessional statement (Ext.88) made by one of the parties to

the conspiracy was made use of against the other parties/accused. It is

interesting to note that the decision in State of Gujarat vs. Mohammed Atik

(supra) rendered by one of the learned Judges, was noticed but the crucial

part of the observation therein ruling out the applicability of Section 10 was

not adverted to. The 2nd Caveeshar case (AIR 1965 SC 682) was also

noticed. However much we are convinced of the arguments advanced by the

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learned senior counsel for the State, we are unable to give effect to the law

laid down in these two cases which runs counter to the larger Bench decisions

noticed supra, especially when the previous decisions bearing on the point

were not discussed. No doubt the judgment in 2nd Caveeshar case was of

three learned Judges but the 4th proposition laid down therein is not so

categorical as to convey the idea that even the confessional statement

recorded after the arrest, could be used against the co-conspirators.

The case of Queen Vs. Blake decided in 1844 [115 ER 49] is

illustrative of the parameters of the common law rule similar to Section 10 of

the Indian Evidence Act. The Privy Council in the case of R Vs. Blake [AIR

1940 PC 176] referred to that case and observed thus:

"\005The leading case of (1844) 6 QB 126 : 115 ER 49 (E) illustrates

the two aspects of it, because that authority shows both what is

admissible and what is inadmissible. What, in that case, was held

to be admissible against the conspirator was the evidence of

entries made by his fellow conspirator contained in various

documents actually used for carrying out the fraud. But a

document not created in the course of carrying out the

transaction, but made by one of the conspirators after the fraud

was completed, was held to be inadmissible against the other\005\005It

had nothing to do with carrying the conspiracy into effect."

In the light of the foregoing discussion, we have no option but to reject

the contention of Mr. Gopal Subramanium on the interpretation of Section 10,

though not without hesitation. However, in view of the fact that confessional

statement is not being relied on, the question of applicability of Section 10

fades into insignificance.

12. Conspiracy

As conspiracy is the primary charge against the accused, we shall now

advert to the law of conspiracy \026 its definition, essential features and proof.

Section 120-A of IPC defines criminal conspiracy. It says: "when two or more

persons agree to do or cause to be done (i) an illegal act or (ii) an act which

is not illegal by illegal means, such an agreement is designated a criminal

conspiracy. Section 120-B prescribes the punishment to be imposed on a

party to a criminal conspiracy. As pointed out by Subba Rao, J in Major E.G.

Barsay Vs. State of Bombay (AIR 1961 SC 1762):

"\005the gist of the offence is an agreement to break the law. The

parties to such an agreement will be guilty of criminal conspiracy,

though the illegal act agreed to be done has not been done. So

too, it is not an ingredient of the offence that all the parties should

agree to do a single illegal act. It may comprise the commission of

a number of acts".

Under section 43 of the IPC, an act would be illegal if it is an offence or if it is

prohibited by law. Section 120-A and 120-B were brought on the statute book

by way of amendment to IPC in 1913. The Statement of Objects and Reasons

to the amending Act reveals that the underlying purpose was to make a mere

agreement to do an illegal act or an act which is not illegal by illegal means

punishable under law. This definition is almost similar to the definition of

conspiracy, which we find in Halsbury's Laws of England. The definition given

therein is:

"Conspiracy consists in the agreement of two or more persons to

do an unlawful act, or to do a lawful act by unlawful means. It is

an indictable offence at common law. The essence of the offence

of conspiracy is the fact of combination by agreement. The

agreement may be express or implied or in part express and in

part implied\005.. and the offence continues to be committed so long

as the combination persists, that is until the conspiratorial

agreement is terminated by completion of its performance or by

abandonment or frustration or however it may be".

In America, the concept of criminal conspiracy is no different. In

American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of

conspiracy is given:

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"A conspiracy is said to be an agreement between two or more

persons to accomplish together a criminal or unlawful act or to

achieve by criminal or unlawful means an act not in itself criminal

or unlawful ... The unlawful agreement and not its

accomplishment is the gist or essence of the crime of conspiracy."

Earlier to the introduction of Section 120-A and B, conspiracy per se

was not an offence under the Indian Penal Code except in respect of the

offence mentioned in Section 121-A. However, abetment by conspiracy was

and still remains to be an ingredient of abetment under clause secondly of

Section 107 of IPC. The punishment therefor is provided under various

sections viz. Section 108 to 117. Whereas under Section 120A, the essence of

the offence of criminal conspiracy is a bare agreement to commit the offence,

the abetment under Section 107 requires the commission of some act or illegal

omission pursuant to the conspiracy. A charge under Section 107/109 should

therefore be in combination with a substantive offence, whereas the charge

under Section 120-A/120-B could be an independent charge.

In the Objects and Reasons to the Amendment Bill, it was explicitly

stated that the new provisions (120-A & B) were "designed to assimilate the

provisions of the Indian Penal Code to those of the English Law \005\005\005\005\005."

Thus, Sections 120-A & B made conspiracy a substantive offence and rendered

the mere agreement to commit an offence punishable. Even if an overt act

does not take place pursuant to the illegal agreement, the offence of

conspiracy would still be attracted. The passages from Russell on Crimes, the

House of Lords decision in Quinn vs. Leathem (1901 AC 495), and the

address of Willes, J to the Jury in Mulcahy Vs. Queen (1868 3 HL 306) are

often quoted in the decisions of this Court. The passage in Russell on Crimes

referred to by Jagannatha Shetty, J in Kehar Singh's case [1988 (3) SCC at

page 731] is quite apposite:

"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"

This passage brings out the legal position succinctly.

In Nalini's case, S.S.M. Quadri, J, pointed out that the meeting of

minds of two or more persons for doing an illegal act or an act by illegal

means is a sine qua non of the criminal conspiracy. Judge L. Hand, in Van

Riper vs. United States (13 F 2d. 961) said of conspiracy: "When men

enter into an agreement for an unlawful end, they become ad hoc agents for

one another and have made a partnership in crime."

In Yashpal Mittal vs. State of Punjab [1977 (4) SCC 540],

Goswami, J, speaking for a three-Judge Bench analysed the legal position

relating to criminal conspiracy. At pages 610-611, the learned Judge observed

that "the very agreement, the concert or league is the ingredient of the

offence." and that "it is not necessary that all the conspirators must know each

and every detail of the conspiracy". It was then observed that "there must be

unity of object or purpose but there may be plurality of means, sometimes

even unknown to one another, amongst the conspirators."

Dr. Sri Hari Singh Gour in his well known 'Commentary on Penal Law of

India', (Vol.2, 11th Edn. page 1138) summed up the legal position in the

following words:

"In order to constitute a single general conspiracy there must be a

common design. Each conspirator plays his separate part in one

integrated and united effort to achieve the common purpose. Each

one is aware that he has a part to play in a general conspiracy

though he may not know all its secrets or the means by which the

common purpose is to be accomplished. The evil scheme may be

promoted by a few, some may drop out and some may join at a

later stage, but the conspiracy continues until it is broken up. The

conspiracy may develop in successive stages. There may be

general plan to accomplish the common design by such means as

may from time to time be found expedient."

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In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17],

it was reiterated that every one of the conspirators need not take active part in

the commission of each and every one of the conspiratorial acts.

In the case of State Vs. Nalini [1999 (5) SCC 253], S.S.M. Quadri, J,

after a survey of case law made the following pertinent observations: (at

paragraph 662)

"In reaching the stage of meeting of minds, two or more persons

share information about doing an illegal act or a legal act by illegal

means. This is the first stage where each is said to have knowledge

of a plan for committing an illegal act or a legal act by illegal

means. Among those sharing the information some or all may form

an intention to do an illegal act or a legal act by illegal means.

Those who do form the requisite intention would be parties to the

agreement and would be conspirators but those who drop out

cannot be roped in as collaborators on the basis of mere knowledge

unless they commit acts or omissions from which a guilty common

intention can be inferred. It is not necessary that all the

conspirators should participate from the inception to the end of the

conspiracy; some may join the conspiracy after the time when such

intention was first entertained by any one of them and some others

may quit from the conspiracy. All of them cannot but be treated as

conspirators. Where in pursuance of the agreement the

conspirators commit offences individually or adopt illegal means to

do a legal act which has a nexus to the object of conspiracy, all of

them will be liable for such offences even if some of them have not

actively participated in the commission of those offences.

There is exhaustive reference to various cases by Arijit Pasayat, J, in

Mohd. Khalid Vs. State of W.B. [2002 (7) SCC 334]. In Mohammed

Usman Vs. State of Maharashatra [1981 (2) SCC 443] it was observed

that the agreement amongst the conspirators can be inferred by necessary

implication.

There is one particular observation made by Jagannadha Shetty in

Kehar Singh's (supra) case which needs to be explained. The learned Judge

observed:

"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 is it necessary to

prove the actual words of communication. The evidence as to

transmission of thoughts sharing the unlawful design may be

sufficient".

The expression 'physical manifestation' seems to be the phraseology

used in the Article referred to by the learned Judge. However, the said

expression shall not be equated to 'overt act' which is a different concept. As

rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the

phrase has reference to the manifestation of the agreement itself, such as by

way of meetings and communications.

Mostly, the conspiracies are proved by the circumstantial evidence, as

the conspiracy is seldom an open affair. Usually both the existence of the

conspiracy and its objects have to be inferred from the circumstances and the

conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page

516). The well known rule governing circumstantial evidence is that each and

every incriminating circumstance must be clearly established by reliable

evidence and "the circumstances proved must form a chain of events from

which the only irresistible conclusion about the guilt of the accused can be

safely drawn and no other hypothesis against the guilt is possible." G.N. Ray,

J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this

Court should not allow the suspicion to take the place of legal proof.

As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC

665], " in most cases it will be difficult to get direct evidence of the

agreement, but a conspiracy can be inferred even from circumstances giving

rise to a conclusive or irresistible inference of an agreement between two or

more persons to commit an offence." In this context, the observations in the

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case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR

1971 SC 885) are worth nothing:

"\005in most cases proof of conspiracy is largely inferential though

the inference must be founded on solid facts. Surrounding

circumstances and antecedent and subsequent conduct, among

other factors, constitute relevant material."

A few bits here and a few bits there on which the prosecution relies cannot be

held to be adequate for connecting the accused in the offence of criminal

conspiracy. The circumstances before, during and after the occurrence can be

proved to decide about the complicity of the accused. [vide Esher Singh vs.

State of A.P., 2004 (11) SCC 585].

Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that

the evidence from which a jury may infer a criminal conspiracy is almost

invariably to be found in the conduct of the parties. In (AIR 1945 PC 140),

the Privy Council warned that in a joint trial care must be taken to separate

the admissible evidence against each accused and the judicial mind should not

be allowed to be influenced by evidence admissible only against others. "A co-

defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy

seat" and "it is difficult for the individual to make his own case stand on its

own merits in the minds of jurors who are ready to believe that birds of a

feather are flocked together." [vide Alvin Krumlewitch vs. United States

of America, (93 L.Ed. 790). In Nalini's case, Wadhwa, J pointed out, at

page 517 of the SCC, the need to guard against prejudice being caused to the

accused on account of the joint trial with other conspirators. The learned Judge

observed that "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". The pertinent observation of Judge Hand in U.S. vs. Falcone

(109 F. 2d,579) was referred to: "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."

At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a

conspiracy requires more than a merely passive attitude towards an existing

conspiracy. The learned Judge then set out the legal position regarding the

criminal liability of the persons accused of the conspiracy as follows:

"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 the 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."

One more principle which deserves notice is that cumulative effect of the

proved circumstances should be taken into account in determining the guilt of

the accused rather than adopting an isolated approach to each of the

circumstances. Of course, each one of the circumstances should be proved

beyond reasonable doubt. Lastly, in regard to the appreciation of evidence

relating to conspiracy, the Court must take care to see that the acts or

conduct of the parties must be conscious and clear enough to infer their

concurrence as to the common design and its execution. K.J. Shetty, J,

pointed out in Kehar Singh's case that "the innocuous, innocent or

inadvertent events and incidents should not enter the judicial verdict."

Before we close the discussion on the topic of conspiracy in general, we

must note the argument of the learned senior counsel for the State Mr. Gopal

Subramanium who in his endeavour to invoke the theory of agency in all its

dimensions so as to make each of the conspirators constructively liable for the

offences actually committed by others pursuant to the conspiracy, relied on

the dictum of Coleridge, J. in Regina vs. Murphy (173 ER 502), which will

be referred to later on. The learned senior counsel submits that where overt

acts have been committed, all conspirators will have to be punished equally

for the substantive offence irrespective of non-participation of some of them in

such overt acts. The observations made by Wadhwa, J in Nalini at paragraph

583 and by Mohapatra, J, in Firozuddin Basheeruddin vs. State of Kerala

[2001 (7) SCC 596], are pressed into service to buttress his argument that

all the conspirators would be liable for all the offences committed pursuant to

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the conspiracy on the basis of the principle of agency where the conspiracy

results in overt acts constituting distinct offences.

We do not think that the theory of agency can be extended thus far, that

is to say, to find all the conspirators guilty of the actual offences committed in

execution of the common design even if such offences were ultimately

committed by some of them, without the participation of others. We are of

the view that those who committed the offences pursuant to the conspiracy by

indulging in various overt acts will be individually liable for those offences in

addition to being liable for criminal conspiracy; but, the non-participant

conspirators cannot be found guilty of the offence or offences committed by

the other conspirators. There is hardly any scope for the application of the

principle of agency in order to find the conspirators guilty of a substantive

offence not committed by them. Criminal offences and punishments therefor

are governed by statute. The offender will be liable only if he comes within

the plain terms of the penal statute. Criminal liability for an offence cannot be

fastened by way of analogy or by extension of a common law principle.

We have to explain the decision in Ferojuddin's case at length in view

of heavy reliance placed on it. The Court observed thus at para 25:

"\005Thus, one who enters into a conspiratorial relationship is liable

for every reasonably foreseeable crime committed by every other

member of the conspiracy in furtherance of its objectives, whether

or not he knew of the crimes or aided in their commission\005"

In para 26, the discussion was on the point of admissibility of evidence i.e.

whether declaration by one conspirator made in furtherance of a conspiracy

and during its subsistence is admissible against each co-conspirator. In other

words, the question of applicability of the rule analogous to Section 10 of the

Evidence Act was the subject matter of discussion. The following passage from

Van Riper Vs. United States [13 F 2d 961 at page 967] was quoted.

"Such declarations are admitted upon no doctrine of the law of

evidence, but of the substantive law of crime. When men enter into

an agreement for an unlawful end, they become ad hoc agents for

one another, and have made 'a partnership in crime'. What one

does pursuant to their common purpose, all do, and as declarations

may be such acts, they are competent against all."

Then, in the immediately following paragraph, this Court observed as follows:

"Thus conspirators are liable on an agency theory for statements of

co-conspirators, just as they are for the overt acts and crimes

committed by their confreres."

The conclusion at paragraph 27 that the conspirators are liable for the overt

acts and crimes committed by their associates on the theory of agency is not

in conformity with the discussion "Regarding admissibility of evidence"\027which

is the opening phraseology of paragraph 26. It was made clear in the second

sentence of para 26 that contrary to the usual rule, any declaration by one

conspirator made in furtherance of a conspiracy and during its pendency is

admissible against each co-conspirator. Thus, the gist of Section 10 of the

Evidence Act is implicit in that observation. Nothing is stated in paragraph 26

to indicate that their Lordships were discussing the larger question of

culpability of all the conspirators for the criminal acts done by some of them

pursuant to the conspiracy. However, the view expressed in paragraph 27 that

on the theory of agency, the conspirators are liable for the statements and

overt acts of the co-conspirators is at variance with the tenor of discussion in

the earlier para. The apparent reason which influenced their Lordships seem to

be the observations of Judge Hand in the case of Van Riper Vs. United

States (supra). Those observations were in the context of the discussion on

the liability of the 'defendants' for conspiracy to defraud. The ratio of the

decision is evident from the concluding observation: "For this reason, all that

was done before he entered may be used against him, but obviously not

what was done after he left." The joint liability for the overt acts involved in

the actual crime did not come up for consideration. That apart, the statement

of law that "such declarations are admitted upon no doctrine of the law of

evidence, but of the substantive law of crime" does not hold good under

Indian law. The reason is that the declarations contemplated by Judge Hand

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are made admissible under Section 10 of the Indian Evidence Act but not

under the substantive law of crimes. Thus, the conclusion reached at

paragraph 27 overlooked the difference in legal position between what was

obtaining in USA in the year 1926 and the statutory rule of evidence contained

in the Indian Evidence Act. The proposition in the earlier para i.e. paragraph

25 (quoted supra) was too widely stated, probably influenced by the

observations in Van Riper's case. In fact, in Ferojuddin's case, some

members of the group who conspired were convicted only under Section 120B

whereas the other members who accomplished the objective of conspiracy by

committing the planned offence were convicted for the substantive offence as

well as for the conspiracy. Thus, the observations made therein are no more

than obiter dicta. The very decision of Maj. E.G. Barsay referred to by their

Lordships make it clear that "for individual offences, all the conspirators may

not be liable though they are all guilty for the offence of conspiracy."

In Ajay Aggarwal vs. Union of India [1993 (3) SCC 609], while

discussing the question whether the conspiracy is a continuing offence, the

following pertinent observations were made by K. Ramaswamy, J, speaking for

the Bench at para 11:

"Conspiracy to commit a crime itself is punishable as a

substantive offence and every individual offence committed

pursuant to the conspiracy is separate and distinct offence to

which individual offenders are liable to punishment,

independent of the conspiracy."

Thus, a distinction was maintained between the conspiracy and the

offences committed pursuant to the conspiracy. It is only in order to prove

the existence of conspiracy and the parties to the conspiracy, a rule of

evidence is enacted in Section 10 based on the principle of

agency. We may recall that Section 10 of the Evidence Act provides that

anything said, done or written by one of the conspirators in reference to the

common intention of all of them can be proved as a relevant fact as against

each of the conspirators, subject to the condition prescribed in the opening

part of the section. Thus, the evidence which is in the nature of hearsay is

made admissible on the principle that there is mutual agency amongst the

conspirators. It is in the context of Section 10 that the relevant observations

were made in the first Caveeshar case (AIR 1957 SC 747) and Nalini's

case at page 517. In the former case, Jagannadhadas, J, after referring to the

passage in Roscoe's Criminal Evidence (16th Edn.) that "an overt act

committed by any one of the conspirators is sufficient, on the general

principles of agency, to make it the act of all", observed that "the principle

underlying the reception of evidence under Section 10 of the Evidence Act of

the statements, acts and writings of one co-conspirator as against the other is

on the theory of agency". It was not held in those cases that the same

principle of agency should be stretched further to make all the conspirators

liable for the offensive acts done pursuant to the conspiracy, irrespective of

their role and participation in the ultimate offensive acts. Whether or not the

conspirators will be liable for substantive offences other than the conspiracy

and, if so, to what extent and what punishment has to be given for the

conspiracy and the other offences committed pursuant thereto, depend on the

specific scheme and provisions of the penal law. The offence cannot be spelt

out by applying the principle of agency if the statute does not say so. For

instance, in the case of Section 34 IPC, the constructive liability for the crime

is specifically fastened on each of those who participate in the crime in

furtherance of the common intention. But Section 120B does not convey that

idea.

Learned senior counsel Mr. Gopal Subramanium placed reliance on the

summary of legal position as to proof of conspiracy by Coleridge, J in Regina

vs. Murphy [(1837) 173 E.R. 502] which is as under:

"\005I 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

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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 \026 the

design being unlawful? .... "If you are satisfied that there was

concert between them, I am bound to say that being convinced of

the conspiracy, it is not necessary that you should find both Mr.

Murphy and Mr. Douglas doing each particular act, as after the

fact of conspiracy is already established in your minds, whatever

is either said or done by either of the defendants in pursuance of

the common design, is, both in law and in common sense, to be

considered as the acts of both."

We do not find anything in Murphy's case which supports the argument that

all the conspirators are equally liable for the offence committed by some of

them in execution of the common design. The Court was only considering

whether the offence of conspiracy was made out and whether the acts or

declarations of co-conspirators can be relied on against others. The crucial

question formulated is: "Had they this common design and did they pursue it

by these common means \026 the design being unlawful? The learned Judge was

only explaining the ingredients of conspiracy and as to the principle on which

anything said or done by either of the conspirators in pursuit of common

design can be put against the other. In other words, the principle analogous

to Section 10 was being highlighted.

The other decision relied upon by the learned counsel for the State is

Babu Lal vs. Emperor (AIR 1938 PC 130) at page 133. What was held in

that case was that if several persons conspire to commit the offences and

commit overt acts pursuant to the conspiracy, such acts must be held to have

been committed in the course of the same transaction, which embraces the

conspiracy and the acts done under it. The Privy Council was concerned with

the interpretation of the expression "in the course of the same transaction"

occurring in Section 239(d) of the old Criminal Procedure Code which dealt

with joinder of charges. It does not support the argument based on the

agency theory.

One point raised by Shri Ram Jethmalani based on the decision of House

of Lords in R Vs. Anderson [1985 2 All ER Page 961] remains to be

considered. The principle laid down in that case is discernible from the

following summary in the head note.

"Beyond the mere fact of agreement, the necessary mens rea

for proving that a person is guilty of conspiring to commit an

offence under Section 1(1) of the Criminal Law Act 1977 is

established if, and only if, it is shown that he intended when

he entered into the agreement to play some part in the

agreed course of conduct involving the commission of an

offence. Furthermore, a person may be guilty of conspiring

even though he secretly intended to participate in only part of

the course of conduct involving the commission of an

offence."

The learned counsel submits that in order to sustain a charge of

conspiracy under Section 120A, the same test could be usefully applied. That

means, there must be evidence to the effect that the accused who entered into

the agreement in the nature of conspiracy had intended to play and played

some part in the agreed course of conduct involving the commission of an

offence. But, if there is no evidence attributing any role to the accused in the

course of conduct involving the commission of offence, he or she cannot be

held guilty under Section 120A. However, as rightly pointed out by the learned

counsel for the State Mr. Gopal Subramanium, the provision dealt with by the

House of Lords, namely, Section 1(1) of the Criminal Law Act, 1977 is different

from the wording of Section 120A. It reads as follows:

"Subject to the following provisions of this Part of this act, if

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a person agrees with any other person or persons that a

course of conduct shall be pursued which will necessarily

amount to or involve the commission of any offence or

offences by one or more of the parties to the agreement if

the agreement is carried out in accordance with their

intentions, he is guilty of conspiracy to commit the offence or

offences in question."

It may be noted that by the 1977 Act, the offence of conspiracy at

common law was abolished and a statutory definition of 'conspiracy to commit

the offence' was enacted. The provision that was interpreted by the House of

Lords is not in pari materia with the provision in the Indian Penal Code.

However, one clarification is needed. If there is proof to the effect that the

accused played a role, attended to certain things or took steps consistent with

the common design underlying the conspiracy, that will go a long way in

establishing the complicity of the accused, though it is not a legal requirement

that the conspirator should do any particular act beyond the agreement to

commit the offence.

13. The interpretation of Section 27 of the Evidence Act has loomed large in

the course of arguments. The controversy centered round two aspects:-

(i) Whether the discovery of fact referred to in Section 27 should be

confined only to the discovery of a material object and the

knowledge of the accused in relation thereto or the discovery could

be in respect of his mental state or knowledge in relation to certain

things \026 concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by the

person making the disclosure or directly at his instance? The

subsequent event of discovery by police with the aid of information

furnished by the accused \026 whether can be put against him under

Section 27?

These issues have arisen especially in the context of the disclosure statement

(Ex. PW 66/13) of Gilani to the police. According to the prosecution, the

information furnished by Gilani on certain aspects, for instance, that the

particular cell phones belonged to the other accused \026 Afzal and Shaukat, that

the Christian colony room was arranged by Shaukat in order to accommodate

the slain terrorist Mohammad, that police uniforms and explosives 'were

arranged' and that the names of the five deceased terrorists were so and so

are relevant under Section 27 of the Evidence Act as they were confirmed to be

true by subsequent investigation and they reveal the awareness and

knowledge of Gilani in regard to all these facts, even though no material

objects were recovered directly at his instance.

The arguments of the learned counsel for the State run as follows:-

The expression "discovery of fact" should be read with the definition of

"fact" as contained in Section 3 of the Evidence Act which defines the "fact" as

'meaning and including anything, state of things or relation of things, capable

of being perceived by the senses and also includes any mental condition of

which any person is conscious' (emphasis supplied). Thus, the definition

comprehends both physical things as well as mental facts. Therefore, Section

27 can admit of discovery of a plain mental fact concerning the informant-

accused. In that sense, Section 27 will apply whenever there is discovery (not

in the narrower sense of recovery of a material object) as long as the discovery

amounts to be confirmatory in character guaranteeing the truth of the

information given\027the only limitation being that the police officer should not

have had access to those facts earlier.

The application of the Section is not contingent on the recovery of a

physical object. Section 27 embodies the doctrine of Confirmation by

subsequent events. The fact investigated and found by the police consequent

to the information disclosed by the accused amounts to confirmation of that

piece of information. Only that piece of information, which is distinctly

supported by confirmation, is rendered relevant and admissible U/S 27.

The physical object might have already been recovered, but the

investigating agency may not have any clue as to the "state of things" that

surrounded that physical object. In such an event, if upon the disclosure made

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such state of things or facts within his knowledge in relation to a physical

object are discovered, then also, it can be said to be discovery of fact within

the meaning of Section 27.

The other aspect is that the pointing out of a material object by the

accused himself is not necessary in order to attribute the discovery to him. A

person who makes a disclosure may himself lead the investigating officer to

the place where the object is concealed. That is one clear instance of

discovery of fact. But the scope of Section 27 is wider. Even if the accused

does not point out the place where the material object is kept, the police, on

the basis of information furnished by him, may launch an investigation which

confirms the information given by accused. Even in such a case, the

information furnished by the accused becomes admissible against him as per

Section 27 provided the correctness of information is confirmed by a

subsequent step in investigation. At the same time, facts discovered as a result

of investigation should be such as are directly relatable to the information.

Reliance is placed mainly on the decisions of this Court in Inayatullah

Vs. State of Maharashtra [(1976) 1 SCC 828] and State of Maharashtra

Vs. Damu [(2000) 6 SCC 269]. Referring to the land-mark decision of Privy

Council in Pulukuri Kotayya Vs. Emperor [AIR 1947 PC 67] the learned

counsel Mr. Gopal Subramanium tried to distinguish it and explain its real ratio.

The learned senior counsel appearing for the defence have contended

that the scope of Section 27 should not be unduly stretched by having resort to

the second part of the definition of 'fact' in Section 3 of the Evidence Act.

According to Mr. Ram Jethmalani, it is too late in the day to contend that the

'fact' discovered within the meaning of Section 27 could either be the physical

object or the mental fact of which the accused giving the information is

conscious. The learned counsel submits that on a true understanding of the

ratio of the opinion of the Privy Council in Kotayya's case, the word 'fact' shall

be construed as being a combination of both the elements. The fact

discovered, it was ruled by the Privy Council, was the physical fact of hidden

spear and the mental fact was that the accused knew that he had so hidden it

at a particular place. Great reliance was placed on the fact that in Kotayya's

case, the full Bench decision of the Lahore High Court in Sukhan Vs. Emperor

[AIR 1929 Lahore 344] and the division Bench decision of the Bombay High

Court in Ganuchandra Vs. Emperor [AIR 1932 Bombay 286] were

specifically approved by the Privy Council. It is pointed out that Section 27 is

virtually borrowed from Taylor's treatise on the Law of Evidence as pointed out

by the full Bench of the Allahabad High Court in the vintage decision in Queen

Empress Vs. Babu Lal [1884, Indian Decisions, 6 Allahabad 510]. The

passage in Taylor's Evidence (which is found in paragraph 902 of Volume 1 of

1931 Edition) is as follows:

"902. (i). When, in consequence of information unduly obtained

from the prisoner, the property stolen, or the instrument of the

crime, or the body of the person murdered, or any other material

fact, has been discovered, proof is admissible that such discovery

was made conformably with the information so obtained. The

prisoner's statement about his knowledge of the place where the

property or other article was to be found, being thus confirmed by

the fact, is shown to be true, and not to have been fabricated in

consequence of any inducement. It is, therefore, competent to

prove that the prisoner stated that the thing would be found by

searching a particular place, and that it was accordingly so found,

but it would not, in such a case of a confession improperly

obtained, be competent to inquire whether he confessed that the

had concealed it there. So much of the confession as relates

distinctly to the fact discovered by it may be given in evidence, as

this part at least of the statement cannot have been false."

It is therefore contended that the fact discovered must basically be a

concrete or material fact but not mental fact. The learned counsel Mr. Ram

Jethmalani further submits that the word 'discovery' had two shades of

meaning: one is 'find and detect' and the other is 'to uncover or reveal' vide

'Dictionary of Modern Legal Usage' by Bryan A. Garner. Though the first of the

meanings viz., 'to uncover or reveal' has become obsolete according to Garner,

still, the expression 'discover' should be construed according to its original

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sense when the Indian Evidence Act was framed. It is therefore submitted that

the discovery of a physical thing by the accused is a must. The doctrine of

confirmation by subsequent events which is the expression used in some of the

cases and text books only means that the discovery of the material object is

subsequent to the information leading to discovery. The learned counsel

reinforces his argument by stating that in the context and setting of Section 27

and in the company of the word 'discover', fact only means the object, its

location and concealment. The entire definition of 'fact' should not be bodily

lifted into Section 27. The fact discovered is the concealment or disposal of the

object which is brought to light by the accused, but not anything relating to the

object in general. All the learned counsel for the defence then stressed on the

expression 'thereby discovered' which means discovered pursuant to

information which he himself supplied. Countering the argument of the learned

senior counsel for the State, the learned counsel for the accused then contend

that the information and the discovery of fact should be intimately and

inextricably connected and the confirmation by means of subsequent

investigation cannot be considered to be discovery of fact as a direct result of

information furnished by the accused. Apart from Kotayya's case, heavy

reliance is placed on the judgment of Privy Council in Kotayya's case.

We have noticed above that the confessions made to a police officer and

a confession made by any person while he or she is in police custody cannot be

proved against that person accused of an offence. Of course, a confession

made in the immediate presence of a Magistrate can be proved against him.

So also Section 162 Cr.P.C. bars the reception of any statements made to a

police officer in the course of an investigation as evidence against the accused

person at any enquiry or trial except to the extent that such statements can be

made use of by the accused to contradict the witnesses. Such confessions are

excluded for the reason that there is a grave risk of their statements being

involuntary and false. Section 27, which unusually starts with a proviso, lifts

the ban against the admissibility of the confession/statement made to the

police to a limited extent by allowing proof of information of specified nature

furnished by the accused in police custody. In that sense Section 27 is

considered to be an exception to the rules embodied in Sections 25 and 26

(vide AIR 1962 SC 1116). Section 27 reads as follows:

27. How much of information received from accused may be

proved\027Provided that, when any fact is deposed to as discovered

in consequence of information received from a person accused of

any offence, in the custody of a police officer, so much of such

information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved.

The history of case law on the subject of confessions under Section 27

unfolds divergent views and approaches. The divergence was mainly on twin

aspects: (i) Whether the facts contemplated by Section 27 are physical,

material objects or the mental facts of which the accused giving the

information could be said to be aware of. Some Judges have gone to the extent

of holding that the discovery of concrete facts, that is to say material objects,

which can be exhibited in the Court are alone covered by Section 27. (ii) The

other controversy was on the point regarding the extent of admissibility of a

disclosure statement. In some cases a view was taken that any information,

which served to connect the object with the offence charged, was admissible

under Section 27. The decision of the Privy Council in Kotayya's case, which

has been described as a locus classicus, had set at rest much of the

controversy that centered round the interpretation of Section 27. To a great

extent the legal position has got crystallized with the rendering of this decision.

The authority of Privy Council's decision has not been questioned in any of the

decisions of the highest Court either in the pre or post independence era.

Right from 1950s, till the advent of the new century and till date, the passages

in this famous decision are being approvingly quoted and reiterated by the

Judges of this apex Court. Yet, there remain certain grey areas as

demonstrated by the arguments advanced on behalf of the State.

The first requisite condition for utilizing Section 27 in support of the

prosecution case is that the investigating police officer should depose that he

discovered a fact in consequence of the information received from an accused

person in police custody. Thus, there must be a discovery of fact not within the

knowledge of police officer as a consequence of information received. Of

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course, it is axiomatic that the information or disclosure should be free from

any element of compulsion. The next component of Section 27 relates to the

nature and extent of information that can be proved. It is only so much of the

information as relates distinctly to the fact thereby discovered that can be

proved and nothing more. It is explicitly clarified in the Section that there is no

taboo against receiving such information in evidence merely because it

amounts to a confession. At the same time, the last clause makes it clear that

it is not the confessional part that is admissible but it is only such information

or part of it, which relates distinctly to the fact discovered by means of the

information furnished. Thus, the information conveyed in the statement to

police ought to be dissected if necessary so as to admit only the information of

the nature mentioned in the Section. The rationale behind this provision is

that, if a fact is actually discovered in consequence of the information supplied,

it affords some guarantee that the information is true and can therefore be

safely allowed to be admitted in evidence as an incriminating factor against the

accused. As pointed out by the Privy Council in Kotayya's case, "clearly the

extent of the information admissible must depend on the exact nature of the

fact discovered and the information must distinctly relate to that fact".

Elucidating the scope of this Section, the Privy Council speaking through Sir

John Beaumont said "normally, the Section is brought into operation when a

person in police custody produces from some place of concealment, some

object, such as a dead body, a weapon or ornaments, said to be connected

with the crime of which the informant is the accused". We have emphasized

the word 'normally' because the illustrations given by the learned Judge are

not exhaustive. The next point to be noted is that the Privy Council rejected

the argument of the counsel appearing for the Crown that the fact discovered

is the physical object produced and that any and every information which

relates distinctly to that object can be proved. Upon this view, the information

given by a person that the weapon produced is the one used by him in the

commission of the murder will be admissible in its entirety. Such contention of

the Crown's counsel was emphatically rejected with the following words:

"\005If this be the effect of Section 27, little substance would remain

in the ban imposed by the two preceding sections on confessions

made to the police, or by persons in police custody. That ban was

presumably inspired by the fear of the Legislature that a person

under police influence might be induced to confess by the exercise

of undue pressure. But if all that is required to lift the ban be the

inclusion in the confession of information relating to an object

subsequently produced, it seems reasonable to suppose that the

persuasive powers of the police will prove equal to the occasion,

and that in practice the ban will lose its effect\005"

Then, their Lordships proceeded to give a lucid exposition of the expression

'fact discovered' in the following passage, which is quoted time and again by

this Court:

"\005In their Lordships' view it is fallacious to treat the 'fact

discovered' within the section as equivalent to the object produced;

the 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 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 the 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).

The approach of the Privy Council in the light of the above exposition of

law can best be understood by referring to the statement made by one of the

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accused to the police officer. It reads thus:

"\005About 14 days ago, I, Kotayya and people of my party lay in

wait for Sivayya and others at about sunset time at the corner of

Pulipad tank. We, all beat Beddupati China Sivayya and Subayya,

to death. The remaining persons, Pullayya, Kotayya and Narayana

ran away. Dondapati Ramayya who was in our party received

blows on his hands. He had a spear in his hands. He gave it to me

then. I hid it and my stick in the rick of Venkatanarasu in the

village. I will show if you come. We did all this at the instigation of

Pulukuri Kotayya."

The Privy Council held that "the whole of that statement except the passage 'I

hid it' (a spear) and my stick in the rick of Venkatanarasu in the village. I will

show if you come" is inadmissible. There is another important observation at

paragraph 11 which needs to be noticed. The Privy Council explained the

probative force of the information made admissible under Section 27 in the

following words:

"\005Except in cases in which the possession, or concealment, of an

object constitutes the gist of the offence charged, it can seldom

happen that information relating to the discovery of a fact forms

the foundation of the prosecution case. It is only one link in the

chain of proof, and the other links must be forged in manner

allowed by law."

In paragraph 11, their Lordships observed that they were in agreement with

the view taken by the High Courts of Lahore and Bombay in Sukhan Vs.

Emperor [AIR 1929 Lahore 344] and Ganuchandra Vs. Emperor [AIR

1932 Bombay 286]. The contrary view taken by the Madras High Court in

Attappa Goundan Vs. Emperor [ILR 1937 Madras 695] was not accepted

by the Privy Council. In Attappa Goundan's case, the High Court held that

even that part of the confessional statement, which revealed the connection

between the objects produced and the commission of murder was held to be

admissible under Section 27 in its entirety. This approach was criticized by the

Privy Council. To complete the sequence, we may refer to another decision of

the Madras High Court in Emperor Vs., Ramanuja Ayyangar [AIR 1935

Madras 528]. In that case, the majority of learned Judges had disagreed with

the view taken in Sukhan's case that the expression 'fact' in Section 27 should

be restricted to material objects or something which can be exhibited as

material object. It was held that the facts need not be self-probatory and the

word 'fact' as contemplated by Section 27 is not limited to "actual physical

material object". Emphasis was laid on the wording 'any fact'. In this respect,

the view taken in Sukhan's case (supra) was dissented from. The minority

view was that the discovery of a witness to the crime or the act of the accused

in purchasing the incriminating material cannot be proved by invoking Section

27. We have referred to this decision in Ramanuja Ayyangar's case for the

reason that the expression 'fact' was given a wider meaning in this case\027

which is the meaning now sought to be given by Mr. Gopal Subramnium. In

Attappa Goundan's case, the connotation of the word 'fact' i.e. whether it

can be restricted to a material object was not specifically dealt with. The

reason for referring to these two decisions of Madras High Court rendered

before Kotayya's case becomes evident when we advert to the decision of this

Court in Omprakash [(1972) 1 SCC 249] a little later.

We retrace our discussion to Kotayya's case for a while. Sir John

Beaumont who gave the opinion of the Privy Council in that case, was the

Judge who spoke for the Division Bench in Ganuchandra's case [AIR 1932

Bombay 286]. In that case, the learned Judge observed\027"the fact discovered

within the meaning of that Section must I think be some concrete fact to which

the information directly relates, and in this case, such fact is the production of

certain property which had been concealed". This is also the view taken by

Shadi Lal, CJ who expressed the opinion of the majority in Sukhan's case

wherein the learned Judge held that the phrase 'fact discovered' refers to a

material and not to a mental fact. It was further elucidated by saying that "the

fact discovered may be the stolen property, the instrument of the crime, a

corpus of a person murdered or any other material thing; or it may be a

material thing in relation to the place or locality where it is found". On the facts

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of the case, it was pointed out that "the fact discovered is not the 'karas'

simplicitor but the 'karas' being found in the possession of Alladin. The

information to be admitted must relate distinctly to the latter. Thus, both in

Sukhan's case and Ganuchandra's case which were approved by the Privy

Council, two questions arose for consideration (a) whether Section 27 was

confined to physical objects and (b) as to the extent of information that was

admissible under Section 27. Mr. Gopal Subramanium is right in his submission

that the only point of controversy in Kotayya's case related to the extent of

information that becomes admissible under Section 27 and it was with

reference to that aspect the view taken in Sukhan and Ganuchandra were

approved, though it was not said so in specific words. The other question as

regards the exact meaning and import of the expression 'discovery of fact' was

not considered. Where a physical object was discovered in consequence of the

information furnished, which part of that information/statement becomes

relevant was the line of inquiry before the Privy Council. No doubt, the

illustrations given coupled with the fact that the same learned Judge took a

particular view on this aspect in Ganuchandra's case may lead to an

impression that the learned Judges of the Privy Council understood the

expression 'fact' primarily in the sense of material object but, as observed

already, the illustrations given are not exhaustive.

We are of the view that Kotayya's case is an authority for the

proposition that 'discovery of fact' cannot be equated to the object produced or

found. It is more than that. The discovery of fact arises by reason of the fact

that the information given by the accused exhibited the knowledge or the

mental awareness of the informant as to its existence at a particular place.

We now turn our attention to the precedents of this Court which followed

the track of Kotayya's case. The ratio of the decision in Kotayya's case

reflected in the underlined passage extracted supra was highlighted in several

decisions of this Court.

The crux of the ratio in Kotayya's case was explained by this Court in

State of Maharashtra vs. Damu. Thomas J. observed that "the decision of

the Privy Council in Pulukuri Kotayya vs. Emperor is the most quoted

authority for supporting the interpretation that the "fact discovered" envisaged

in the section embraces the place from which the object was produced, the

knowledge of the accused as to it, but the information given must relate

distinctly to that effect". In Mohmed Inayatullah vs. The State of

Maharashtra [(1976) 1 SCC 828], Sarkaria J. while clarifying that the

expression "fact discovered" in Section 27 is not restricted to a physical or

material fact which can be perceived by the senses, and that it does include a

mental fact, explained the meaning by giving the gist of what was laid down in

Pulukuri Kotayya's case. The learned Judge, speaking for the Bench

observed thus:

"Now it is fairly settled that the expression "fact discovered"

includes not only the physical object produced, but also the

place from which it is produced and the knowledge of the

accused as to this (see Pulukuri Kotayya v. Emperor; Udai Bhan

v. State of Uttar Pradesh)"

So also in Udai Bhan vs. State of Uttar Pradesh [AIR 1962 SC 1116].

Raghubar Dayal, J. after referring to Kotayya's case stated the legal position

as follows:

"A discovery of a fact includes the object found, the place

from which it is produced and the knowledge of the accused

as to its existence."

The above statement of law does not run counter to the contention of Mr.

Ram Jethmalani, that the factum of discovery combines both the physical

object as well as the mental consciousness of the informant-accused in relation

thereto. However, what would be the position if the physical object was not

recovered at the instance of the accused was not discussed in any of these

cases.

There is almost a direct decision of this Court in which the connotation of

the expression "fact" occurring in Section 27 was explored and a view similar

to Sukhan's case was taken on the supposition that the said view was

approved by the Privy Council in Kotayya's case. That decision is\027Himachal

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Pradesh Administration vs. Om Prakash [(1972) 1 SCC 249]. In that

case, on the basis of information furnished by the accused to the Police Officer

that he had purchased the weapon from a witness (PW11) and that he would

take the Police to him, the Police went to the Thari of PW11 where the accused

pointed out PW11 to the Police. It was contended on behalf of the accused

that the information that he purchased the dagger from PW11 followed by his

leading the Police to the Thari and pointing him out was inadmissible under

Section 27 of the Evidence Act. This argument was accepted. Jaganmohan

Reddy, J. speaking for the Court observed thus:

"In our view there is force in this contention. A fact

discovered within the meaning of Section 27 must refer to a

material fact to which the information directly relates. In

order to render the information admissible the fact

discovered must be relevant and must have been such that it

constitutes the information through which the discovery was

made. What is the fact discovered in this case?. Not the

dagger but the dagger hid under the stone which is not

known to the Police (see Pulukuri Kotayya and others v. King

Emperor). But thereafter can it be said that the information

furnished by the accused that he purchased the dagger from

PW11 led to a fact discovered when the accused took the

police to the Thari of PW11 and pointed him out"

The learned Judge then referred to the decision of Madras High Court in

Emperor vs. Ramanuja Ayyangar [AIR 1935 Mad 528] which held that

the information relating to the purchase from the pointed shop and its carriage

by a witness pointed out was admissible. Reference was then made to the law

laid down in Athappa Goundan's case [AIR 1937 Mad 618] and observed

that "this view was overruled by the Privy Council in Pulukuri Kotayya's

case" (supra).

The passage in Sukhan's case was then approvingly referred to and the

law was enunciated as follows:

"In the Full Bench Judgment of Seven Judges in Sukhan

vs. the Crown, which was approved by the Privy Council in

Pulkuri Kotayya's case, Shadi Lal, C.J., as he then was

speaking for the majority pointed out that the expression

'fact' as defined by Section 3 of the Evidence Act includes

not only the physical fact which can be perceived by the

senses but also the psychological fact or mental condition of

which any person is conscious and that it is in the former

sense that the word used by the Legislature refers to a

material and not to a mental fact. It is clear therefore that

what should be discovered is the material fact and the

information that is admissible is that which has caused that

discovery so as to connect the information and the fact with

each other as the 'cause and effect'. That information

which does not distinctly connect with the fact discovered

or that portion of the information which merely explains the

material thing discovered is not admissible under Section

27 and cannot be proved".

The following observations are also crucial.

"As explained by this Court as well as by the Privy Council,

normally Section 27 is brought into operation where a

person in police custody produces from some place of

concealment some object said to be connected with the

crime of which the informant is the accused. the

concealment of the fact which is not known to the police is

what is discovered by the information and lends assurance

that the information was true. No witness with whom some

material fact, such as the weapon of murder, stolen

property or other incriminating article is not hidden sold or

kept and which is unknown to the Police can be said to be

discovered as a consequence of the information furnished

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by the accused. These examples however are only by way

of illustration and are not exhaustive. What makes the

information leading to the discovery of the witness

admissible is the discovery from him of the thing sold to

him or hidden or kept with him which the police did not

know until the information was furnished to them by the

accused. A witness cannot be said to be discovered if

nothing is to be found or recovered from him as a

consequence of the information furnished by the accused

and the information which disclosed the identity of the

witness will not be admissible".

Then follows the statement of law:

"But even apart from the admissibility of the information

under Section 27, the evidence of the Investigating Officer

and the panchas that the accused had taken them to PW11

and pointed him out and as corroborated by PW11 himself

would be admissible under Section 8 of the Evidence Act as

conduct of the accused".

In an earlier paragraph, the Court stressed the need to exercise

necessary caution and care so as to be assured of the credibility of the

information furnished and the fact discovered.

Confronted with this decision which affirms the law laid down in

Sukhan's case (supra), and which militates against the contention advanced

by the prosecution, the learned senior counsel Mr. Gopal Subramanium has

questioned the correctness and the binding authority of this judgment. Firstly,

according to him, the judgment was based on certain wrong assumptions and,

secondly, it is pointed out that in the light of the later decisions, the

enunciation of law in Om Prakash case does not hold good.

In regard to the first point of criticism, the learned counsel Mr. Gopal

Subramanium contended as follows:

"OM PRAKASH was delivered on the basis that Sukhan

had been approved in Pulukuri Kotayya, and the

contrary view had been rejected by the Privy Council. It

is submitted that the very basis of the decision in Om

Prakash was incorrect. It is submitted that a reading of

para 13 of the judgment indicates that the ratio in

Athapa Goundan and Ramanuja Ayyangar were

perceived to be similar and it is on this assumption this

Court held that mental facts are not admissible in

evidence under Section 27. The Court failed to note that

Ramanuja Ayyangar dealt with the admissibility of

mental facts which was not under consideration before

the Privy Council in Pulukuri Kottaya. Athapa

Goundan which dealt with the question of extent of

admissibility was considered by the Privy Council and

overruled."

We find considerable force in this criticism. However, this criticism does

not justify a departure from the view taken by a coordinate Bench of this

Court, unless we categorize it as a decision rendered per incuriam. It is not

possible to hold so. In fact, as pointed out by Mr. Ram Jethmalani, the said

interpretation of expression 'fact' placed in Om Prakash (supra) and in some

other decisions of the pre-independence days, is in conformity with the opinion

of TAYLOR (quoted supra) which had apparently inspired the drafters of the

Indian Evidence Act. But that is not to say that the legal position canvassed by

Mr. Gopal Subramanium is not a reasonably possible one. However, we are

handicapped in approaching the issue independently, unfettered by the

decision in OM PRAKASH case.

We may add that in the case of Eerabhadrappa Vs. State of

Karnataka [(1983) 2 SCC 330] A.P. Sen, J. speaking for the Bench observed

that the word 'fact' in Section 27 "means some concrete or material fact to

which the information directly relates". Then his Lordship quoted the famous

passage in Kotayya's case. However, there was no elaboration.

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The next endeavour of Mr. Gopal Subramanium was to convince us that

the precedential force of the judgment in OM PRAKASH has been considerably

eroded by the subsequent pronouncements. Two decisions have been cited to

substantiate his contention. They are: Mohd. Inayatullah vs. State of

Maharashtra (supra) and State of Maharashtra vs. Damu (supra). We do

not think that in any of these decisions 'discovery of fact' was held to

comprehend a pure and simple mental fact or state of mind relating to a

physical object dissociated from the recovery of the physical object.

Let us revert back to the decision in Mohd. Inayatullah's case. The first

sentence in paragraph 13 of the following passage which has already been

referred to is relied on by the learned senior counsel for the State.

"At one time it was held that the expression "fact discovered" in

the section is restricted to a physical or material fact which can be

perceived by the senses, and that it does not include a mental fact

(see Sukhan V. Crown; Rex V. Ganee). Now it is fairly settled

that the expression "fact discovered" includes not only the physical

object produced, but also the place from which it is produced and

the knowledge of the accused as to this (see Palukuri Kotayya v.

Emperor; Udai Bhan v. State of Uttar Pradesh)"

The first sentence read with the second sentence in the above passage would

support the contention of Mr. Ram Jethmalani that the word 'fact' embraces

within its fold both the physical object as well as the mental element in relation

thereto. This ruling in Inayatullah does not support the argument of the

State's counsel that Section 27 admits of a discovery of a plain mental fact

irrespective of the discovery of physical fact. The conclusion reached in

Inayatullah's case is revealing. The three fold fact discovered therein was: a)

the chemical drums, (b) the place i.e. the musafir khana wherein they lay in

deposit and (c) the knowledge of the accused of such deposit. The accused

took the police to the place of deposit and pointed out the drums. That portion

of the information was found admissible under Section 27. The rest of the

statement namely "which I took out from the Hazibundar of first accused" was

eschewed for the reason that it related to the past history of the drums or their

theft by the accused.

Let us see how far Damu's case supports the contention of Mr. Gopal

Subramanium. At the outset, we may point out that Damu's case did not lay

down any legal proposition beyond what was said in Kotayya's case. The

statement of law in Kotayya that the fact discovered "embraces the place

from which the object is produced and the knowledge of the accused as to it

and the information given must relate distinctly to this fact" was reiterated

without any gloss or qualification. In that case, A3 disclosed to the

investigating officer that "Deepak's dead body was carried by me and Guruji

(A2) on his motor cycle and thrown in the canal". The said statement of A3

was not found admissible in evidence by the High Court as the dead body was

not recovered pursuant to the disclosure made. This Court however took a

different view and held that the said statement was admissible under Section

27. It was held so in the light of the facts mentioned in paragraphs 34 & 37.

These are the facts: when an offer was made by A3 that he would point out the

spot, he was taken to the spot and there the I.O. found a broken piece of glass

lying on the ground which was picked up by him. A motor cycle was recovered

from the house of A2 and its tail lamp was found broken. The broken glass

piece recovered from the spot matched with and fitted into the broken tail

lamp. With these facts presented to the Court, the learned Judges after

referring to Kotayya's case, reached the following conclusion in paragraph 37.

"How did the particular information lead to the discovery of the

fact? No doubt, recovery of dead body of Dipak from the same

canal was antecedent to the information which PW44 obtained. If

nothing more was recovered pursuant to and subsequent to

obtaining the information from the accused, there would not have

been any discovery of any fact at all. But when the broken glass

piece was recovered from that spot and that piece was found to be

part of the tail lamp of the motorcycle of A2 Guruji, it can safely be

held that the investigating officer discovered the fact that A2 Guruji

had carried the dead body on that particular motorcycle up to the

spot". (emphasis supplied)

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The events highlighted in the case speak for themselves and reveal the

rationale of that decision. The view taken in Damu's case does not make any

dent on the observations made and the legal position spelt out in Om Prakash

case. The High Court rightly distinguished Damu's case because there was

discovery of a related physical object at least in part.

The decision in Pandurang Kalu Patil Vs. State of Maharashtra

[(2002) 2 SCC 490] was also cited by the counsel for the State. We do not

think that the prosecution can derive assistance from what was laid down in

that judgment. The legal position enunciated in P. Kotayya's case was only

reiterated in a little different language. It was observed that "recovery, or even

production of object by itself need not necessarily result in discovery of a fact.

That is why Sir John Beaumont said in Pulukuri Kotayya that it is fallacious to

treat the 'fact discovered' within the Section as equivalent to the object

produced".

We need not delve further into this aspect as we are of the view that

another ingredient of the Section, namely, that the information provable

should relate distinctly to the fact thereby discovered is not satisfied, as we see

later. When we refer to the circumstances against some of the accused.

There is one more point which we would like to discuss i.e. whether

pointing out a material object by the accused furnishing the information is a

necessary concomitant of Section 27. We think that the answer should be in

the negative. Though in most of the cases the person who makes the

disclosure himself leads the Police Officer to the place where an object is

concealed and points out the same to him, however, it is not essential that

there should be such pointing out in order to make the information admissible

under Section 27. It could very well be that on the basis of information

furnished by the accused, the Investigating Officer may go to the spot in the

company of other witnesses and recover the material object. By doing so, the

Investigating Officer will be discovering a fact viz., the concealment of an

incriminating article and the knowledge of the accused furnishing the

information about it. In other words, where the information furnished by the

person in custody is verified by the Police Officer by going to the spot

mentioned by the informant and finds it to be correct, that amounts to

discovery of fact within the meaning of Section 27. Of course, it is subject to

the rider that the information so furnished was the immediate and proximate

cause of discovery. If the Police Officer chooses not to take the informant-

accused to the spot, it will have no bearing on the point of admissibility under

Section 27, though it may be one of the aspects that goes into evaluation of

that particular piece of evidence.

How the clause\027"as relates distinctly to the fact thereby discovered" has

to be understood is the next point that deserves consideration. The

interpretation of this clause is not in doubt. Apart from Kotayya's case,

various decisions of this Court have elucidated and clarified the scope and

meaning of the said portion of Section 27. The law has been succinctly stated

in Inayatullah's case (supra). Sarkaria, J. analyzed the ingredients of the

Section and explained the ambit and nuances of this particular clause in the

following words:

"..The last but the most important condition is that only "so much

of the information" as relates distinctly to the fact thereby

discovered is admissible. The rest of the information has to be

excluded. The word 'distinctly' means 'directly', 'indubitably',

'strictly', 'unmistakably'. The word has been advisedly used to limit

and define the scope of the provable information. The phrase

'distinctly relates to the fact thereby discovered' is the linchpin of

the provision. This phrase refers to that part of the information

supplied by the accused which is the direct and immediate cause of

the discovery. The reason behind this partial lifting of the ban

against confessions and statements made to the police, is that if a

fact is actually discovered in consequence of information given by

the accused, it affords some guarantee of truth of that part, and

that part only, of the information which was the clear, immediate

and proximate cause of the discovery. No such guarantee or

assurance attaches to the rest of the statement which may be

indirectly or remotely related to the fact discovered."

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In the light of the legal position thus clarified, this Court excluded a part of the

disclosure statement to which we have already adverted.

In Bodhraj Vs. State of J & K [(2002) 8 SCC 45] this Court after

referring to the decisions on the subject observed thus:

"\005The words "so much of such information", as relates distinctly to

the fact thereby discovered are very important and the whole force

of the section concentrates on them. 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\005"

14. Joint disclosures

Before parting with the discussion on the subject of confessions under

Section 27, we may briefly refer to the legal position as regards joint

disclosures. This point assumes relevance in the context of such disclosures

made by the first two accused viz. Afzal and Shaukat. The admissibility of

information said to have been furnished by both of them leading to the

discovery of the hideouts of the deceased terrorists and the recovery of a

laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in

which they were found at Srinagar is in issue. Learned senior counsel Mr.

Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as

was contended before the High Court, that the disclosure and pointing out

attributed to both cannot fall within the Ken of Section 27, whereas it is the

contention of Mr. Gopal Subramanium that there is no taboo against the

admission of such information as incriminating evidence against both the

informants/accused. Some of the High Courts have taken the view that the

wording "a person" excludes the applicability of the Section to more than one

person. But, that is too narrow a view to be taken. Joint disclosures\027to be

more accurate, simultaneous disclosures, per se, are not inadmissible under

Section 27. 'A person accused' need not necessarily be a single person, but it

could be plurality of accused. It seems to us that the real reason for not acting

upon the joint disclosures by taking resort to Section 27 is the inherent

difficulty in placing reliance on such information supposed to have emerged

from the mouths of two or more accused at a time. In fact, joint or

simultaneous disclosure is a myth, because two or more accused persons

would not have uttered informatory words in a chorus. At best, one person

would have made the statement orally and the other person would have stated

so substantially in similar terms a few seconds or minutes later, or the second

person would have given unequivocal nod to what has been said by the first

person. Or, two persons in custody may be interrogated separately and

simultaneously and both of them may furnish similar information leading to the

discovery of fact. Or, in rare cases, both the accused may reduce the

information into writing and hand over the written notes to the police officer at

the same time. We do not think that such disclosures by two or more persons

in police custody go out of the purview of Section 27 altogether. If information

is given one after the other without any break\027almost simultaneously, and if

such information is followed up by pointing out the material thing by both of

them, we find no good reason to eschew such evidence from the regime of

Section 27. However, there may be practical difficulties in placing reliance on

such evidence. It may be difficult for the witness (generally the police officer),

to depose which accused spoke what words and in what sequence. In other

words, the deposition in regard to the information given by the two accused

may be exposed to criticism from the stand point of credibility and its nexus

with discovery. Admissibility and credibility are two distinct aspects, as

pointed out by Mr. Gopal Subramanium. Whether and to what extent such a

simultaneous disclosure could be relied upon by the Court is really a matter of

evaluation of evidence. With these prefaratory remarks, we have to refer to

two decisions of this Court which are relied upon by the learned defence

counsel.

In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983 SC

367], the prosecution sought to rely on the evidence that the appellant along

with the other two accused gave information to the IO that the ring (MO 1)

was sold to the jeweller\027PW3 in whose possession the ring was. PW3 deposed

that four accused persons whom he identified in the Court came to his shop

and they sold the ring for Rs.325/- and some days later, the Police Inspector

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accompanied by accused 1, 2 and 3 came to his shop and the said accused

asked PW3 to produce the ring which they had sold. Then, he took out the

ring from the showcase and it was seized by the Police Inspector. The

difficulty in accepting such evidence was projected in the following words by

D.A. Desai, J. speaking for the Court:

"Does this evidence make any sense? He says that accused 1

to 4 sold him the ring. He does not say who had the ring and

to whom he paid the money. Similarly, he stated that

accused 1 to 3 asked him to produce the ring. It is

impossible to believe that all spoke simultaneously. This way

of recording evidence is most unsatisfactory and we record

our disapproval of the same. If evidence otherwise

confessional in character is admissible under Section 27 of

the Indian Evidence Act, it is obligatory upon the

Investigating Officer to state and record who gave the

information; when he is dealing with more than one accused,

what words were used by him so that a recovery pursuant to

the information received may be connected to the person

giving the information so as to provide incriminating evidence

against the person".

There is nothing in this judgment which suggests that simultaneous

disclosures by more than one accused do not at all enter into the arena of

Section 27, as a proposition of law.

Another case which needs to be noticed is the case of Ramkishan vs.

Bombay State [AIR 1955 SC 104]. The admissibility or otherwise of joint

disclosures did not directly come up for consideration in that case. However,

while distinguishing the case of Gokuldas Dwarkadas decided by Bombay

High Court, a passing observation was made that in the said case the High

Court "had rightly held that a joint statement by more than one accused was

not contemplated by Section 27". We cannot understand this observation as

laying down the law that information almost simultaneously furnished by two

accused in regard to a fact discovered cannot be received in evidence under

Section 27. It may be relevant to mention that in the case of Lachhman

Singh vs. The State [1952 SCR 839] this Court expressed certain

reservations on the correctness of the view taken by some of the High Courts

discountenancing the joint disclosures.

15. CALL RECORDS\027PROOF AND AUTHENTICITY

It is contended by Mr. Shanti Bhushan, appearing for the accused

Shaukat that the call records relating to the cellular phone No. 919811573506

said to have been used by Shaukat have not been proved as per the

requirements of law and their genuineness is in doubt. The call records relating

to the other mobile numbers related to Gilani and Afzal are also subjected to

the same criticism. It is the contention of the learned counsel that in the

absence of a certificate issued under sub-Section (2) of Section 65B of the

Evidence Act with the particulars enumerated in clauses (a) to (e), the

information contained in the electronic record cannot be adduced in evidence

and in any case in the absence of examination of a competent witness

acquainted with the functioning of the computers during the relevant time and

the manner in which the printouts were taken, even secondary evidence under

Section 63 is not admissible.

Two witnesses were examined to prove the printouts of the computerized

record furnished by the cellular service providers namely AIRTEL (Bharti

Cellular Limited) and ESSAR Cellphone. The call details of the mobile No.

9811573506 (which was seized from Shaukat's house) are contained in

Exhibits 36/1 to 36/2. The covering letters signed by the Nodal Officer of

Sterling Cellular Limited are Ext.P36/6 and P36/7 bearing the dates 13th & 18th

December respectively. The call details of mobile No. 9811489429 attributed to

Afzal are contained in Ext.P36/3 and the covering letter addressed to the

Inspector (Special Cell)\027PW66 signed by the Nodal Officer is Ext.36/5. The call

details of 9810081228 belonging to the subscriber SAR Gilani are contained in

Exts. 35/8. The above two phones were obtained on cash card basis. The

covering letter pertaining thereto and certain other mobile numbers was signed

by the Security Manager of Bharti Cellular Limited. The call details relating to

another cellphone number 9810693456 pertaining to Mohammed is Ext.35/5.

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These documents i.e. Ext.35 series were filed by PW35 who is the person that

signed the covering letter dated 17th December bearing Ext.35/1. PW35

deposed that "all the call details are computerized sheets obtained from the

computer". He clarified that "the switch which is maintained in the computer in

respect of each telephone receives the signal of the telephone number, called

or received and serves them to the Server and it is the Server which keeps the

record of the calls made or received. In case where call is made and the

receiver does not pick up the phone, the server which makes a loop of the

route would not register it". As far as PW36 is concerned, he identified the

signatures of the General Manager of his Company who signed Ext.P36 series.

He testified to the fact that the call details of the particular telephone numbers

were contained in the relevant exhibits produced by him. It is significant to

note that no suggestion was put to these two witnesses touching the

authenticity of the call records or the possible tampering with the entries,

although the arguments have proceeded on the lines that there could have

been fabrication. In support of such argument, the duplication of entries in

Exts.36/2 and 36/3 and that there was some discrepancy relating to the Cell

I.D. and IMEI number of the handset at certain places was pointed out. The

factum of presence of duplicate entries was elicited by the counsel appearing

for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of

DW10\027a technical expert, was only to the effect that it was possible to clone a

SIM by means of a SIM Programmer which to his knowledge, was not available

in Delhi or elsewhere. His evidence was only of a general nature envisaging a

theoretical possibility and not with reference to specific instances.

According to Section 63, secondary evidence means and includes, among

other things, "copies made from the original by mechanical processes which in

themselves ensure the accuracy of the copy, and copies compared with such

copies". Section 65 enables secondary evidence of the contents of a document

to be adduced if the original is of such a nature as not to be easily movable. It

is not in dispute that the information contained in the call records is stored in

huge servers which cannot be easily moved and produced in the Court. That is

what the High Court has also observed at para 276. Hence, printouts taken

from the computers/servers by mechanical process and certified by a

responsible official of the service providing Company can be led into evidence

through a witness who can identify the signatures of the certifying officer or

otherwise speak to the facts based on his personal knowledge. Irrespective of

the compliance of the requirements of Section 65B which is a provision dealing

with admissibility of electronic records, there is no bar to adducing secondary

evidence under the other provisions of the Evidence Act, namely Sections 63 &

65. It may be that the certificate containing the details in sub-Section (4) of

Section 65B is not filed in the instant case, but that does not mean that

secondary evidence cannot be given even if the law permits such evidence to

be given in the circumstances mentioned in the relevant provisions, namely

Sections 63 & 65.

The learned senior counsel Mr. Shanti Bhushan then contended that the

witnesses examined were not technical persons acquainted with the functioning

of the computers, nor they do have personal knowledge of the details stored in

the servers of the computers. We do not find substance in this argument. Both

the witnesses were responsible officials of the concerned Companies who

deposed to the fact that they were the printouts obtained from the computer

records. In fact the evidence of PW35 shows that he is fairly familiar with the

computer system and its output. If there was some questioning vis-`-vis

specific details or specific suggestion of fabrication of printouts, it would have

been obligatory on the part of the prosecution to call a technical expert directly

in the know of things. The following observations of House of Lords in the case

of R Vs. Shepard [1993 AC 380] are quite apposite:

"\005The nature of the evidence to discharge the burden of showing

that there has been no improper use of the computer and that it

was operating properly will inevitably vary from case to case. The

evidence must be tailored to suit the needs of the case. I suspect

that it will very rarely be necessary to call an expert and that in

the vast majority of cases it will be possible to discharge the

burden by calling a witness who is familiar with the operation of

the computer in the sense of knowing what the computer is

required to do and who can say that it is doing it properly."

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Such a view was expressed even in the face of a more stringent provision in

Section 69 of the Police and Criminal Act, 1984 in U.K. casting a positive

obligation on the part of the prosecution to lead evidence in respect of proof of

the computer record. We agree with the submission of Mr. Gopal Subramanium

that the burden of prosecution under the Indian Law cannot be said to be

higher than what was laid down in R Vs. Shepard (supra).

Although necessary suggestions were not put forward to the witnesses so

as to discredit the correctness/genuineness of the call records produced, we

would prefer to examine the points made out by the learned counsel for the

accused independently. As already noted, one such contention was about the

presence of duplicate entries in Ext.36/2 and 36/3. We feel that an innocuous

error in the computer recording is being magnified to discredit the entire

document containing the details without any warrant. As explained by the

learned counsel for the State, the computer, at the first instance, instead of

recording the IMEI number of the mobile instrument, had recorded the IMEI

and cell ID (location) of the person calling/called by the subscriber. The

computer rectified this obvious error immediately and modified the record to

show the correct details viz., the IMEI and the cell I.D. of the subscriber only.

The document is self-explanatory of the error. A perusal of both the call

records with reference to the call at 11:19:14 hours exchanged between

9811489429 (Shaukat's) and 9811573506 (Afzal's) shows that the said call

was recorded twice in the call records. The fact that the same call has been

recorded twice in the call records of the calling and called party simultaneously

demonstrates beyond doubt that the correctness or genuineness of the call is

beyond doubt. Further, on a comparative perusal of the two call records, the

details of Cell I.D. and IMEI of the two numbers are also recorded. Thus, as

rightly pointed out by the counsel for the State Mr. Gopal Subramanium, the

same call has been recorded two times, first with the cell ID and IMEI number

of the calling number (9811489429). The same explanation holds good for the

call at 11:32:40 hours. Far from supporting the contention of the defence, the

above facts, evident from the perusal of the call records, would clearly show

that the system was working satisfactorily and it promptly checked and

rectified the mistake that occurred. As already noticed, it was not suggested

nor could it be suggested that there was any manipulation or material

deficiency in the computer on account of these two errors. Above all, the

printouts pertaining to the call details exhibited by the prosecution are of such

regularity and continuity that it would be legitimate to draw a presumption that

the system was functional and the output was produced by the computer in

regular use, whether this fact was specifically deposed to by the witness or

not. We are therefore of the view that the call records are admissible and

reliable and rightly made use of by the prosecution.

16. Interception of Phone Calls

The legality and admissibility of intercepted telephone calls arises in the

context of telephone conversation between Shaukat and his wife Afsan Guru on

14th December at 20:09 hrs and the conversation between Gilani and his

brother Shah Faizal on the same day at 12:22 hrs. Interception of

communication is provided for by the provisions contained in Chapter V of the

POTO/POTA which contains Sections 36 to 48. The proviso to Section 45 lays

down the pre-requisite conditions for admitting the evidence collected against

the accused through the interception of wire, electronic or oral communication.

Chapter V governing the procedure for interception and admission of the

intercepted communications pre-supposes that there is an investigation of a

terrorists act under the POTA has been set in motion. It is not in dispute that

the procedural requirements of Chapter V have not been complied with when

such interceptions took place on 14th December, 2001. But, as already

noticed, on the crucial date on which interception took place (i.e. 14th

December), no offence under POTA was included \026 whether in the FIR or in any

other contemporaneous documents. We have already held that the non-

inclusion of POTO offences even at the threshold of investigation cannot be

legally faulted and that such non-inclusion was not deliberate. The

admissibility or the evidentiary status of the two intercepted conversations

should, therefore, be judged de hors the provisions of POTO/POTA. On the

relevant day, the interception of messages was governed by Section 5(2) of

the Indian Telegraph Act read with Rule 419-A of the Indian Telegraph Rules.

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The substantive power of interception by the Government or the authorized

officer is conferred by Section 5. The modalities and procedure for interception

is governed by the said Rules. It is contended by the learned senior counsel

appearing for the two accused \026 Shaukat and Gilani, that even the Rule \026

419A, has not been complied with in the instant case, and, therefore, the tape-

recorded conversation obtained by such interception cannot be utilized by the

prosecution to incriminate the said accused. It is the contention of learned

counsel for the State, Mr. Gopal Subramanium, that there was substantial

compliance with Rule 419A and, in any case, even if the interception did not

take place in strict conformity with the Rule, that does not affect the

admissibility of the communications so recorded. In other words, his

submission is that the illegality or irregularity in interception does not affect its

admissibility in evidence there being no specific embargo against the

admissibility in the Telegraph Act or in the Rules. Irrespective of the merit in

the first contention of Mr. Gopal Subramanium, we find force in the alternative

contention advanced by him.

In regard to the first aspect, two infirmities are pointed out in the

relevant orders authorizing and confirming the interception of specified

telephone numbers. It is not shown by the prosecution that the Joint Director,

Intelligence Bureau who authorized the interception, holds the rank of Joint

Secretary to the Government of India. Secondly, the confirmation orders

passed by the Home Secretary (contained in volume 7 of lower Court record,

Page 447 etc.,) would indicate that the confirmation was prospective. We are

distressed to note that the confirmation orders should be passed by a senior

officer of the Government of India in such a careless manner, that too, in an

important case of this nature. However, these deficiencies or inadequacies do

not, in our view, preclude the admission of intercepted telephonic

communication in evidence. It is to be noted that unlike the proviso to Section

45 of POTA, Section 5(2) of the Telegraph Act or Rule 419A does not deal with

any rule of evidence. The non-compliance or inadequate compliance with the

provisions of the Telegraph Act does not per se affect the admissibility. The

legal position regarding the question of admissibility of the tape recorded

conversation illegally collected or obtained is no longer res integra in view of

the decision of this Court in R.M. Malkani Vs. State of Maharashtra

[(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous

tape record of a relevant conversation is a relevant fact and is admissible as

res gestae under Section 7 of the Evidence Act. Adverting to the argument that

Section 25 of the Indian Telegraph Act was contravened the learned Judges

held that there was no violation. At the same time, the question of

admissibility of evidence illegally obtained was discussed. The law was laid

down as follows:

"\005There is warrant for the proposition that even if evidence is

illegally obtained it is admissible. Over a century ago it was said in

an English case where a constable searched the appellant illegally

and found a quantity of offending article in his pocket that it would

be a dangerous obstacle to the administration of justice if it were

held, because evidence was obtained by illegal means, it could not

be used against a party charged with an offence. See Jones V.

Owen (1870) 34 JP 759. The Judicial Committee in Kumar, Son

of Kanju V. R [1955 1 All E.R. 236] dealt with the conviction of

an accused of being in unlawful possession of ammunition which

had been discovered in consequence of a search of his person by a

police officer below the rank of those who were permitted to make

such searches. The Judicial Committee held that the evidence was

rightly admitted. The reason given was that if evidence was

admissible it matters not how it was obtained. There is of course

always a word of caution. It is that the Judge has a discretion to

disallow evidence in a criminal case if the strict rules of

admissibility would operate unfairly against the accused. That

caution is the golden rule in criminal jurisprudence."

We may also refer to the decision of a Constitution Bench of this Court in

Pooranmal Vs. Director of Inspection [1974 2 SCR 704] in which the

principle stated by the Privy Council in Kurma's case was approvingly referred

to while testing the evidentiary status of illegally obtained evidence. Another

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decision in which the same approach was adopted is a recent judgment in

State Vs. NMT Joy Immaculate [(2004) 5 SCC 729]. It may be mentioned

that Pooranmal's case was distinguished by this Court in Ali Musfata vs.

State of Kerala [(1994) 6 SCC 569] which is a case arising under NDPS Act

on the ground that contraband material seized as a result of illegal search and

seizure could by itself be treated as evidence of possession of the contraband

which is the gist of the offence under the said Act. In the instant case, the tape

recorded conversation which has been duly proved and conforms to the

requirements laid down by this Court in Ramsingh Vs. Ramsingh [(1985)

Suppl. SCC 611] can be pressed into service against the concerned accused

in the joint trial for the offences under the Indian Penal Code as well as POTA.

Such evidence cannot be shut out by applying the embargo contained in

Section 45 when on the date of interception, the procedure under Chapter V of

POTA was not required to be complied with. On the relevant date POTA was

not in the picture and the investigation did not specifically relate to the

offences under POTA. The question of applying the proviso to Section 45 of

POTA does not, therefore, arise as the proviso applies only in the event of the

communications being legally required to be intercepted under the provisions

of POTA. The proviso to Section 45 cannot be so read as to exclude such

material in relation to POTA offences if it is otherwise admissible under the

general law of evidence.

17. Procedural safeguards in POTA and their impact on confessions

As already noticed, POTA has absorbed into it the guidelines spelt out in

Kartar Singh's case and D.K.Basus's case in order to impart an element of

fairness and reasonableness into the stringent provisions of POTA in tune with

the philosophy of Article 21 and allied constitutional provisions. These salutary

safeguards are contained in Section 32 and Section 52 of POTA. The

peremptory prescriptions embodied in Section 32 of POTA are:\026

(a) The police officer shall warn the accused that he is not bound

to make the confession and if he does so, it may be used against

him (vide sub-section (2). (b) The confession shall be recorded in

an atmosphere free from threat or inducement and shall be in the

same language in which the person makes it (vide sub-section (3).

(c) The person from whom a confession has been recorded under

sub-section (1) shall be produced before the Chief Metropolitan

Magistrate or Chief Judicial Magistrate along with the original

statement of confession, within forty-eight hours (vide sub-section

(4). (d) The CMM/CJM shall record the statement, if any, made by

the person so produced and get his signature and if there is any

complaint of torture, such person shall be directed to be produced

for medical examination. After recording the statement and after

medical examination, if necessary, he shall be sent to judicial

custody (vide sub-section (5).

The mandate of sub-sections 2 & 3 is not something new. Almost similar

prescriptions were there under TADA also. In fact, the fulfillment of such

mandate is inherent in the process of recording a confession by a statutory

authority. What is necessarily implicit is, perhaps, made explicit. But the

notable safeguards which were lacking in TADA are to be found in sub-sections

4 & 5.

The lofty purpose behind the mandate that the maker of confession shall

be sent to judicial custody by the CJM before whom he is produced is to

provide an atmosphere in which he would feel free to make a complaint against

the police, if he so wishes. The feeling that he will be free from the shackles of

police custody after production in the Court will minimize, if not remove, the

fear psychosis by which he may be gripped. The various safeguards enshrined

in Section 32 are meant to be strictly observed as they relate to personal

liberty of an individual. However, we add a caveat here. The strict enforcement

of the provision as to judicial remand and the invalidation of confession merely

on the ground of its non-compliance may present some practical difficulties at

times. Situations may arise that even after the confession is made by a person

in custody, police custody may still be required for the purpose of further

investigation. Sending a person to judicial custody at that stage may retard the

investigation. Sometimes, the further steps to be taken by the investigator

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with the help of the accused may brook no delay. An attempt shall however be

made to harmonize this provision in Section 32(5) with the powers of

investigation available to the police. At the same time, it needs to be

emphasized that the obligation to send the confession maker to judicial

custody cannot be lightly disregarded. The police custody cannot be given on

mere asking by the police. It shall be remembered that sending a person who

has made the confession to judicial custody after he is produced before the

CJM is the normal rule and this procedural safeguard should be given its due

primacy. The CJM should be satisfied that it is absolutely necessary that the

confession maker shall be restored to police custody for any special reason.

Such a course of sending him back to police custody could only be done in

exceptional cases after due application of mind. Most often, sending such

person to judicial custody in compliance with Section 32(5) soon after the

proceedings are recorded by the CJM subject to the consideration of the

application by the police after a few days may not make material difference for

further investigation. The CJM has a duty to consider whether the application is

only a ruse to get back the person concerned to police custody in case he

disputes the confession or it is an application made bona fide in view of the

need and urgency involved. We are therefore of the view that the non-

compliance with the judicial custody requirement does not per se vitiate the

confession, though its non-compliance should be one of the important factors

that must be borne in mind in testing the confession.

These provisions of Section 32, which are conceived in the interest of the

accused, will go a long way to screen and exclude confessions, which appear to

be involuntary. The requirements and safeguards laid down in sub-sections 2

to 5 are an integral part of the scheme providing for admissibility of confession

made to the police officer. The breach of any one of these requirements would

have a vital bearing on the admissibility and evidentiary value of the

confession recorded under Section 32(1) and may even inflict a fatal blow on

such confession. We have another set of procedural safeguards laid down in

Section 52 of POTA which are modelled on the guidelines envisaged by D.K.

Basu (supra). Section 52 runs as under:

"52 (1) Where a police officer arrests a person, he shall

prepare a custody memo of the person arrested.

(2) The person arrested shall be informed of his right to

consult a legal practitioner as soon as he is brought to the

police station.

(3) Whenever any person is arrested, information of his

arrest shall be immediately communicated by the police officer

to a family member or in his absence to a relative of such

person by telegram, telephone or by any other means and this

fact shall be recorded by the police officer under the signature

of the person arrested.

(4) The person arrested shall be permitted to meet the legal

practitioner representing him during the course of

interrogation of the accused person:

Provided that nothing in this sub-section, shall, entitle

the legal practitioner to remain present throughout the

period of interrogation."

Sub-sections 2 & 4 as well as sub-Section (3) stem from the guarantees

enshrined in Articles 21 and 22(1) of the Constitution. Article 22(1) enjoins

that no person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall he be

denied the right to consult, and to be defended by, a legal practitioner of his

choice. They are also meant to effectuate the commandment of Article 20(3)

that no person accused of any offence shall be compelled to be a witness

against himself.

The breadth and depth of the principle against self-incrimination

imbedded in Article 20(3) was unravelled by a three Judge Bench speaking

through Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC

424]. It was pointed out by the learned Judge that the area covered by Article

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20(3) and Section 161(2) of Cr.P.C. is substantially the same. "Section 161(2)

of the Cr.P.C. is a parliamentary gloss on the constitutional clause"\027it was

observed. This Court rejected the contention advanced on behalf of the State

that the two provisions, namely, Article 20(3) and Section 161, did not operate

at the anterior stages before the case came to Court and the incriminating

utterance of the accused, previously recorded, was attempted to be

introduced. Noting that the landmark decision in Miranda Vs. Arizona [1966,

384 US 436] did extend the embargo to police investigation also, the Court

observed that there was no warrant to truncate the constitutional protection

underlying Article 20(3). It was held that even the investigation at the police

level is embraced by Article 20(3) and this is what precisely Section 161(2)

means. The interpretation so placed on Article 20(3) and Section 161, in the

words of the learned Judge, "brings us nearer to the Miranda mantle of

exclusion which extends the right against self-incrimination, to police

examination and custodial interrogation and takes in suspects as much as

regular accused persons". The observations in M.P. Sharma Vs. Satish

Chandra [AIR 1954 SC 300] to the effect that "the protection afforded to an

accused insofar as it is related to the phrase 'to be a witness' is not merely in

respect of testimonial compulsion in the Court room but may well extend to

compelled testimony previously obtained from him" were cited with approval.

In the same Judgment, we find lucid exposition of the width and content

of Article 22(1). Krishna Iyer, J. observed\027

"\005The spirit and sense of Article 22(1) is that it is fundamental to

the rule of law that the services of a lawyer shall be available for

consultation to any accused person under circumstances of near-

custodial interrogation. Moreover, the observance of the right

against self-incrimination is best promoted by conceding to the

accused the right to consult a legal practitioner of his choice."

Article 22(1) was viewed to be complementary to Article 20(3). It was

observed\027"we think that Article 20(3) and Article 22(1) may, in a way, be

telescoped by making it prudent for the police to permit the advocate of the

accused, if there be one to be present at the time he is examined". It was

pointed out that lawyer's presence, in the context of Article 20(3), "is an

assurance of awareness and observance of the right to silence". It was then

clarified\027"we do not lay down that the police must secure the services of a

lawyer\005\005but all that we mean is that if an accused person expresses the wish

to have his lawyer by his side when his examination goes on, this facility shall

not be denied", without being exposed to the charge of securing involuntary

self-incrimination. It was also clarified that the police need not wait more than

for a reasonable while for an advocate's arrival. But they must invariably

warn\027and record that fact about the right to silence. It was aptly and

graphically said\027"Article 20(3) is not a paper tiger but a provision to police the

police and to silence coerced crimination". Based on the observations in

Nadini Satpathy's case, it is possible to agree that the constitutional

guarantee under Article 22(1) only implies that the suspect in the police

custody shall not be denied the right to meet and consult his lawyer even at

the stage of interrogation. In other words, if he wishes to have the presence of

the lawyer, he shall not be denied that opportunity. Perhaps, Nandini

Satpathy does not go so far as Miranda in establishing access to lawyer at

interrogation stage. But, Section 52(2) of POTA makes up this deficiency. It

goes a step further and casts an imperative on the police officer to inform the

person arrested of his right to consult a legal practitioner, soon after he is

brought to the police station. Thus, the police officer is bound to apprise the

arrested person of his right to consult the lawyer. To that extent, Section

52(2) affords an additional safeguard to the person in custody. Section 52(2)

is founded on the MIRANDA rule.

A discussion on the raison d'etre and the desirability of the provision

enacted in Section 52(1) read with Section 52(4) can best be understood by

referring to the seminal case of Miranda Vs. Arizona which is an oft-quoted

decision. The privilege against the self-incrimination was expressly protected

by the V amendment of the U.S. Constitution. It provides, as Article 20(3) of

Indian Constitution provides, that no person\005."shall be compelled in any

criminal case to be a witness against himself". Such privilege lies at the heart

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of the concept of a fair procedure and such norm is now recognized to be an

international standard. The V amendment also guarantees a right akin to

Article 21 of our Constitution by enjoining that no person shall be deprived of

life, liberty or property without due process of law. Another notable safeguard

to the accused is to be found in the VI amendment which inter alia provides

that in a criminal prosecution, the accused shall have the assistance of counsel

for his defence. The safeguard is substantially similar to Article 22(1) of the

Indian Constitution. It is in the context of exposition of these constitutional

provisions that the U.S. Supreme Court handed down the significant ruling in

Miranda. The core principles underscored in Miranda have withstood the

judicial scrutiny in the subsequent rulings, though the straight jacketed

warning procedures and the effect of technical non-compliance of Miranda

procedures evoked critical comments and set a process of debate. Miranda is

often referred to as "the marriage of the V&VI amendments" and it is seen as

the natural outgrowth of V Amendment guarantees, spread over a century

or more. Prior to Miranda ruling, confessions were only required to meet the

'voluntariness' test. In the post Miranda era, police have to prove that they

read specific Miranda warnings and obtained an 'intelligent waiver'. The

purpose of Miranda it is said, is to neutralize the distinct psychological

disadvantage that suspects are under when dealing with police. The

proposition laid down in the majority opinion in Miranda case was that "the

prosecution may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the privilege against self-

incrimination". To ensure tht the exercise of the right will be scrupulously

honoured, the Court laid down the following measures:

"He must be warned prior to any questioning that he has the right

to remain silent, that anything he says can be used against him in

a Court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights must be afforded to him

throughout the interrogation. After such warnings have been

given, and such opportunity afforded him, the individual may

knowingly and intelligently waive these rights and agree to answer

questions or make a statement. But unless and until such

warnings and waiver are demonstrated by the prosecution at trial,

no evidence obtained as a result of interrogation can be used

against him".

On the content of the right to consult a counsel not merely at the stage

of trial, but also at the interrogation stage, Chief Justice Warren observed

thus:

"In order fully to apprise a person interrogated of the extent of his

rights under this system then, it is necessary to warn him not only

that he has the right to consult with an attorney, but also that if

he is indigent a lawyer will be appointed to represent him. Without

this additional warning, the admonition of the right to consult with

counsel would often be understood as meaning only that he can

consult with a lawyer if he has one or has the funds to obtain one.

The warning of a right to counsel would be hollow if not couched in

terms that would convey to the indigent\027the person most often

subjected to interrogation\027the knowledge that he too has a right

to have counsel present."

At the same time it was clarified\027

"This does not mean, as some have suggested, that each police

station must have a "station house lawyer" present at all times to

advise prisoners. It does mean, however, that if police propose to

interrogate a person, they must make known to him that he is

entitled to a lawyer and that if he cannot afford one, a lawyer will

be provided for him prior to any interrogation."

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It was aptly pointed out that "the modern practice of 'in custody

interrogation' is psychologically rather than physically oriented".

Now the question remains as to what is the effect of non-compliance of

the obligations cast on the police officer by sub-Sections (2) to (4) of Section

52. This question becomes relevant as we find the non observance of the

requirements of sub-Section (2) read with sub-Section (4) as well as sub-

Section (3) or one of them in the instant cases. Does it have a bearing on the

voluntariness and admissibility of the confession recorded under Section

32(1)? Should these safeguards envisaged in Section 52(1) be telescoped into

Section 32? These are the questions which arise.

In our considered view, the violation of procedural safeguards under

Section 52 does not stand on the same footing as the violation of the

requirements of sub-Sections (2) to (5) of Section 32. As already observed,

sub-Sections (2) to (5) of Section 32 have an integral and inseparable

connection with the confession recorded under Section 32(1). They are

designed to be checks against involuntary confessions and to provide an

immediate remedy to the person making the confession to air his grievance

before a judicial authority. These safeguards are, so to say, woven into the

fabric of Section 32 itself and their observance is so vital that the breach

thereof will normally result in eschewing the confession from consideration,

subject to what we have said about the judicial custody. The prescriptions

under Section 52, especially those affording an opportunity to have the

presence of the legal practitioner, are no doubt supplemental safeguards as

they will promote the guarantee against self-incrimination even at the stage of

interrogation; but these requirements laid down in Section 52 cannot be

projected into Section 32 so as to read all of them as constituting a code of

safeguards of the same magnitude. To hold that the violation of each one of

the safeguards envisaged by Section 52 would lead to automatic invalidation of

confession would not be in consonance with the inherent nature and scheme of

the respective provisions. However, we would like to make it clear that the

denial of the safeguards under sub-Sections (2) to (4) of Section 52 will be

one of the relevant factors that would weigh with the Court to act upon or

discard the confession. To this extent they play a role vis-`-vis the confessions

recorded under Section 32, but they are not as clinching as the provisions

contained in sub-Sections (2) to (5) of Section 32.

18. CASE OF MOHD. AFZAL (A1)

(i) Legal Assistance :

The first point raised by Mr. Sushil Kumar, appearing for the accused

Afzal, was that he was denied proper legal aid, thereby depriving him of

effective defence in the course of trial. In sum and substance, the contention is

that the counsel appointed by the Court as 'amicus curiae' to take care of his

defence was thrust on him against his will and the first amicus appointed made

concessions with regard to the admission of certain documents and framing of

charges without his knowledge. It is further submitted that the counsel who

conducted the trial did not diligently cross-examine the witnesses. It is,

therefore, contended that his valuable right of legal aid flowing from Articles 21

and 22 is violated. We find no substance in this contention. The learned trial

Judge did his best to afford effective legal aid to the accused Afzal when he

declined to engage a counsel on his own. We are unable to hold that the

learned counsel who defended the accused at the trial was either inexperienced

or ineffective or otherwise handled the case in a casual manner. The criticism

against the counsel seems to be an after thought raised at the appellate stage.

It was rightly negatived by the High Court.

Coming to the specific details, in the first instance, when Afzal along with

other accused was produced before the special Judge, he was offered the

assistance of a counsel. One Mr. Attar Alam was appointed. However, the said

advocate was not willing to act as amicus. On 14.5.2002, the charge sheet was

filed in the Court. On 17.5.2002, the trial Judge appointed Ms. Seema Gulati

who agreed to defend Afzal. She filed Vakalatnama along with her junior Mr.

Neeraj Bansal on the same day on behalf of the accused Afzal. On 3.6.2002,

the arguments on charges were heard. Afzal was represented by Ms. Seema

Gulati. The counsel conceded that there was prima facie material to frame

charges. The Court framed charges against all the accused on 4.6.2002 and

the accused pleaded not guilty. True, the appellant was without counsel till

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17.5.2002 but the fact remains that till then, no proceedings except extending

the remand and furnishing of documents took place in the Court. The next date

which deserves mention is 5.6.2002. On that date, all the counsel appearing

for the accused agreed that postmortem reports, MLCs, documents related to

recovery of guns and explosive substances at the spot should be considered as

undisputed evidence without formal proof which resulted in dropping of

considerable number of witnesses for the prosecution. The learned senior

counsel for the appellant by referring to the application filed by Ms. Seema

Gulati on 1.7.2002 seeking her discharge from the case, highlights the fact

that she took no instructions from Afzal or discussed the case with him and

therefore no concession should have been made by her. The contention has no

force. Assuming that the counsel's statement that she took no instructions

from the accused is correct, even then there is nothing wrong in the conduct of

the advocate in agreeing for admission of formal documents without formal

proof or in agreeing for the framing of charges. The counsel had exercised her

discretion reasonably. The appellant accused did not object to this course

adopted by the amicus throughout the trial. No doubt, some of the documents

admitted contained particulars of identification of the deceased terrorists by

the appellant Afzal, but, the factum of identification was independently proved

by the prosecution witnesses and opportunity of cross- examination was

available to the accused. In the circumstances, we cannot say that there was a

reasonable possibility of prejudice on account of admission of the said

documents without formal proof.

Coming to the next phase of development, on 1.7.2002, Ms. Seema

Gulati filed an application praying for her discharge from the case citing a

curious reason that she had been engaged by another accused Gilani to appear

on his behalf. An order was passed on 2.7.2002 releasing her from the case.

Mr. Neeraj Bansal who filed Vakalat along with Ms. Seema Gulati was then

nominated as amicus to defend Afzal and the brief was handed over to him. NO

objection was raised by Afzal on that occasion. Inspection of record by the

counsel was allowed on 3.7.2002 and on subsequent occasions. On 8.7.2002,

the accused Afzal filed a petition stating therein that he was not satisfied with

the counsel appointed by the Court and that he needed the services of a senior

advocate. He named four advocates in the petition and requested the Court to

appoint one of them. On 12th July, the trial Judge recorded that the counsel

named by the accused were not willing to take up the case. Mr. Neeraj Bansal

was therefore continued especially in view of the fact that he had experience of

dealing with TADA cases. Afzal was also given the opportunity to cross-

examine the prosecution witnesses in addition to the amicus. In fact, he did

avail of that opportunity now and then. On several occasions, there was

common cross-examination on behalf of all the accused. No indicia of apparent

prejudice, is discernible from the manner in which the case was defended.

Though the objection that he was not satisfied with his counsel was reiterated

on 12.7.02 after PW15 was cross examined, we do not think that the Court

should dislodge the counsel and go on searching for some other counsel to the

liking of the accused. The right to legal aid cannot be taken thus far. It is not

demonstrated before us as to how the case was mishandled by the advocate

appointed as amicus except pointing out stray instances pertaining to cross-

examination of one or two witnesses. The very decision relied upon by the

learned counsel for the appellant, namely, Strickland Vs. Washington [466

US 668] makes it clear that judicial scrutiny of a counsel's performance must

be careful, deferential and circumspect as the ground of ineffective assistance

could be easily raised after an adverse verdict at the trial. It was observed

therein:

"Judicial scrutiny of counsel's performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel's assistance after conviction or adverse sentence, and it is

all too easy for a court, examining counsel's defence after it has

proved unsuccessful, to conclude that a particular act of omission

of counsel was unreasonable. Cf. Engle Vs. Isaac [456 US 107,

133-134] (1982). A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time. Because of the difficulties inherent in

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making the evaluation, a court must indulge in a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; \005"

The learned senior counsel for the State Mr. Gopal Subramnium has

furnished a table indicating the cross examination of material prosecution

witnesses by the counsel Mr. Neeraj Bansal as Annexure 16 to the written

submissions. Taking an overall view of the assistance given by the Court and

the performance of the counsel, it cannot be said that the accused was denied

the facility of effective defence.

(ii) Evidence against Mohd. Afzal

Now let us analyze the evidence against Afzal that is sought to be relied

upon by the prosecution. It consists of confessional statement recorded by the

DCP, Special Cell\027PW60 and the circumstantial evidence.

(iii) Confession

First, we shall advert to the confession. It is in the evidence of PW80\027

Rajbir Singh (ACP), Special Cell that he took over investigation on 19.12.2001

on which date the offences under POTA were added. Then, he further

interrogated the accused Afzal on 20.12.2001 and recorded his supplementary

disclosure statement\027Ext. PW64/3. According to him, the three accused\027

Afzal, Shaukat and Gilani, expressed their desire to make confessional

statements before the Deputy Commissioner of Police. Accordingly, he apprised

the DCP, Special Cell (PW60) of this fact. PW60 directed him to produce the

accused persons at Gazetted Officers' Mess, Alipur Road, Delhi on the next

day. First, PW80 produced Gilani before PW60 at 11.30 a.m. but he declined to

give the confessional statement. Then he produced Mohd. Afzal before the

DCP, Special Cell in the evening. The recording of the confession by PW60\027

DCP started at 7.10 pm on 21.12.2001 and ended at 10.45 pm. It is recorded

in the preamble of the confession that he had asked ACP Rajbir Singh to leave

the room and after that he warned and explained to the accused that he was

not bound to make the confessional statement and that if he did so, it can be

used against him as evidence. Thereupon, it was recorded that Afzal was not

under any duress and he was ready to give the confessional statement. The

signature of Afzal is found beneath that endorsement. There is a recital to the

effect that PW60 was satisfied that the accused was not under duress or

pressure. PW60 also deposed that the accused were 'comfortable' in English

language and he kept on writing as they narrated their versions. He (PW60)

denied the suggestion that Afzal was not produced before him and he did not

express his willingness to make confession. The DCP(PW60) handed over a

sealed envelope containing the confessional statements to PW80\027the I.O. who

produced the accused Afzal and two others before the Addl. Chief Metropolitan

Magistrate (ACMM), Delhi on 22.12.2001 together with an application\027Ext.

PW63/1. The ACMM was examined as PW63. The ACMM stated that he opened

the sealed envelope containing Exts.PW60/9 & PW60/6 which are the

confessional statements of Afzal and Shaukat, and Ext.PW60/3 which is the

statement of Gilani and perused them. The ACMM then recorded the

statements of the accused persons. The two accused Afzal and Shaukat

confirmed having made the confessional statement without any threat or

pressure. The proceedings drawn by him is Ext.PW63/2. The accused signed

the statements confirming the confession made to the DCP. The statement of

Mohd. Afzal and his signature are marked as Exts.PW63/5 & 63/6. PW63 stated

that he made enquiries from the accused persons and none of them made any

complaint of use of force or threat at the time of recording confession. He also

deposed that he gave a warning that they were not bound to make the

statement before him. A suggestion that Mohd. Afzal did not appear before him

nor did he make the statement, was denied. The ACMM, after drawing up the

proceedings, sent the accused Afzal to police custody for a week at the

instance of I.O.\027PW80 for the reason that he was required to be taken to

certain places in Kashmir for further investigation.

We shall now give the gist of the confessional statement of Mohd. Afzal

which is Ext.PW60/9 read with Ext.PW60/7. First, he mentions about joining

JKLF, a militant outfit during the year 1989-90, receiving training in Pak

Occupied Kashmir in insurgent activities and coming back to India with arms,

his arrival in Delhi with his cousin Shaukat for studies, coming into contact with

SAR Gilani\027A3 while studying in Delhi University, surrendering before BSF in

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1993 on the advice of his family members, returning back to his native place

Sopore and doing commission agency business, coming into contact with one

Tariq of Anantanag at that time, who motivated him to join 'Jihad' for liberation

of Kashmir and assured him of financial assistance, Tariq introducing him to

one Ghazibaba (proclaimed offender) in Kashmir who further exhorted him to

join the movement and apprised him of the mission to carry out attacks on

important institutions in India like Parliament and Embassies and asked him to

find a safe hideout for the 'Fidayeens' in Delhi.

During that meeting, he was introduced to Mohammed and Haider, Pak

nationals and militants. In the month of October, 2001, he rang up to Shaukat

and asked him to rent out accommodation for himself and Mohammed. In the

first week of November, he and Mohammed came to Delhi. Mohammed

brought with him a laptop and Rs.50,000. Shaukat took them to the pre-

arranged accommodation in Christian Colony Boys' Hostel. He revealed to

Shaukat that Mohammed was a Pak militant of Jaish-E-Mohammed and came

to Delhi to carry out a Fidayen attack. After a week, he arranged another safe

hideout at A-97, Gandhi Vihar. Mohammed collected money through 'hawala'

and gave Rs.5 lakhs to be handed over to Tariq in Srinagar. Accordingly, he

went to Srinagar and gave the money to Tariq. At the instance of Tariq, he

brought two other militants Raja and Hyder to Delhi and both were

accommodated at the hideout in Gandhi Vihar. In order to complete the task

assigned by Ghazibaba, he along with Mohammed went to the shops in old

Delhi area and purchased 60 KGs of Ammonium Nitrate, 10 KGs of Aluminum

powder, 5 KGs of Sulpher and other items in order to facilitate preparation of

explosives by Mohammed. After a week or so, Mohammed gave another 5

lakhs of rupees to be handed over to Tariq. Tariq asked him to take along with

him two other militants, Rana and Hamza. They were carrying two holdalls

which contained rifles with loaded magazines, grenade launcher, pistols, hand

grenades and shells, electric detonators and other explosives. They also stayed

in Gandhi Nagar hideout initially. After reaching Delhi, he arranged for another

accommodation at 281, Indira Vihar. Mohammed purchased mobile phones and

SIM cards from the markets and received directions from Ghazibaba from a

satellite phone. He used to meet Shaukat and Gilani and motivate them for

Jihad. Shaukat provided his motorcycle for conducting 'recce'. Meetings were

also arranged in the house of Shaukat for deciding future course of action. In

those meetings, Gilani and Shaukat's wife Afsan also used to be present. At the

meetings, various targets such as Delhi Assembly, Parliament, UK & US

Embassy and Airport were discussed. Then, after conducting survey of all the

targets, Mohammed informed Ghazibaba that they should strike at the Indian

Parliament. A final meeting was held in the house of Shaukat in which all were

present and plans for attack on Parliament House were finalized. As per the

plan, he along with Mohammed went to Karolbagh and bought a second hand

Ambassador car on 11th December. They also purchased a magnetic VIP red

light. Mohammed got prepared a sticker of MHA and identity cards through his

laptop. Mohammed and other militants prepared IEDs with the use of

chemicals. This IED was fitted in the car for causing explosion.

On the night of 12.12.2001, he along with Shaukat and Gilani went to

the hideout in Gandhi Vihar, where all the five Pak militants were present.

Mohammed gave him the laptop and Rs.10 lakhs. He asked him to reach the

laptop to Ghazibaba and also told him that Rs.10 lakhs was meant for him and

his friends Shaukat and Gilani. Mohammed told him that they were going to

conduct a Fidayeen attack on Parliament House on 13.12.2001. They were in

touch with each other on mobile phones. On 13.12.2001, he received a call on

his mobile No. 98114-89429 from Mohammed's phone No. 98106-93456. He

was asked to watch the TV and inform him about the presence of various

VVIPs in Parliament House. As there was no electricity, he could not watch TV

and therefore he contacted Shaukat and asked him to watch TV and convey

the information. Then Mohammed called him (Afzal) and told him that he was

going ahead with the attack on the Parliament. He then called Shaukat and

told him that the mission had started. Shaukat then came and met him at

Azadpur mandi and both went to Gilani's house and gave him Rs.2 lakhs. Gilani

in turn asked him to give the money at his house in Kashmir. Then he and

Shaukat left for Srinagar in Shaukat's truck. They were apprehended by the

Srinagar police on 15th. The police recovered from them laptop with the

accessories and Rs.10 lakhs. They were then brought to Delhi and at Delhi he

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got recovered explosives and other materials from the hideouts.

The crucial question that remains to be considered is whether the

confessional statement of Mohd. Afzal recorded by the DCP (PW 80) could be

safely acted upon. Certain common contentions applicable to the confessions

of both Afzal and Shaukat were raised in an attempt to demonstrate that the

confession would not have been true and voluntary. Firstly, it is pointed out

that the alleged confession was substantially the same as the alleged

disclosure statements (Exts. 64/1 & 64/2) which were recorded on the 16th

December itself. Even their signatures were obtained on these disclosure

statements. If so, when the accused were inclined to make a full-fledged

confession on the 16th December and most of the investigation relating to

hideouts and shops and the recovery of incriminating materials was over by

the next day, there was no perceptible reason why the accused should not

have been produced before a Judicial Magistrate for recording a confession

under the provisions of Cr.P.C. The only reason, according to learned counsel

for the appellants, is that they were really not prepared to make the confession

in a Court and, therefore, the investigating authorities found the ingenuity of

adding POTA offences at that stage so as to get the confession recorded by a

Police officer according to the wishes of the investigators. It is also submitted

that it is highly incredible that Afzal, who is a surrendered militant, and who is

alleged to have maintained close contact with hard-core terrorists, could have,

immediately after the arrest by police, developed a feeling of repentance and

come forward voluntarily to make a confession implicating himself and others

including a lady who had nothing to do with the terrorists. Another comment

made is that the alleged meetings at Shaukat's place to discuss and finalize the

plans to attack Parliament with persons whose advice or association had

nothing or little to do with the execution of conspiracy is a highly improbable

event. The terrorists who came to Delhi on a Fidyaeen mission with a set

purpose could not have thought of going about here and there to evolve the

strategies and plans with persons like Gilani and Navjot (Shaukat's wife),

risking unnecessary publicity. It was not a natural, probable or reasonable

conduct. It is also contended that the language and tenor of the confessional

statement gives enough indication that it was not written to the dictation of

appellants, but it was a tailor made statement of which they had no

knowledge.

Though these arguments are plausible and persuasive, it is not necessary

to rest our conclusion on these probabilities.

We may also refer to the contention advanced by Shri Ram Jethmalani,

learned senior counsel appearing for SAR Gilani with reference to the

confession of Afzal. Shri Jethmalani contended that Afzal in the course of his

interview with the TV and other media representatives, a day prior to recording

of a confession before the DCP, while confessing to the crime, absolved Gilani

of his complicity in the conspiracy. A cassette (Ext.DW4/A) was produced as

the evidence of his talk. DW-4, a reporter of Aaj Tak TV channel was

examined. It shows that Afzal was pressurized to implicate Gilani in the

confessional statement, according to the learned counsel. It is further

contended by Shri Jethmalani that the statement of Afzal in the course of

media interview is relevant and admissible under Section 11 of the Evidence

Act. Learned counsel for Afzal, Shri Sushil Kumar did not sail with Shri

Jethmalani on this point, realizing the implications of admission of the

statements of Afzal before the TV and press on his culpability. However, at

one stage he did argue that the implication of Gilani in the confessional

statement conflicts with the statement made by him to the media and

therefore the confession is not true. We are of the view that the talk which

Afzal had with TV and press reporters admittedly in the immediate presence of

the police and while he was in police custody, should not be relied upon

irrespective of the fact whether the statement was made to a Police Officer

within the meaning of Section 162 Cr.P.C. or not. We are not prepared to

attach any weight or credibility to the statements made in the course of such

interview pre-arranged by the police. The police officials in their over-

zealousness arranged for a media interview which has evoked serious

comments from the counsel about the manner in which publicity was sought to

be given thereby. Incidentally, we may mention that PW60\027the DCP, who was

supervising the investigation, surprisingly expressed his ignorance about the

media interview. We think that the wrong step taken by the police should not

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enure to the benefit or detriment of either the prosecution or the accused.

(iv) Procedural Safeguards\027Compliance:

Now we look to the confession from other angles, especially from the

point of view of in-built procedural safeguards in Section 32 and the other

safeguards contained in Section 52. It is contended by the learned senior

counsel Mr. Gopal Subramanium that the DCP before recording the confession,

gave the statutory warning and then recorded the confession at a place away

from the police station, gave a few minutes time for reflection and only on

being satisfied that the accused Afzal volunteered to make confession in an

atmosphere free from threat or inducement that he proceeded to record the

confession to the dictation of Afzal. Therefore, it is submitted that there was

perfect compliance with sub-Sections (2)&(3). The next important step

required by sub-Section (4) was also complied with inasmuch as Afzal was

produced before the Additional Chief Metropolitan Magistrate\027PW63 on the

very next day i.e. 22.12.2001 along with the confessional statements kept in a

sealed cover. The learned Magistrate opened the cover, perused the

confessional statements, called the maker of confession into his chamber, on

being identified by PW80\027ACP and made it known to the maker that he was

not legally bound to make the confession and on getting a positive response

from him that he voluntarily made the confession without any threat or

violence, the ACMM recorded the statement to that effect and drew up

necessary proceedings vide Exts.PW63/5 and PW63/6. It is pointed out that

the accused, having had the opportunity to protest or complain against the

behaviour of police in extracting the confession, did not say a single word

denying the factum of making the confession or any other relevant

circumstances impinging on the correctness of the confession. It is further

pointed out that Afzal and the other accused were also got medically examined

by the police and the Doctor found no traces of physical violence. It is

therefore submitted that the steps required to be taken under sub-Sections

(4)&(5) were taken. However, the learned counsel for the State could not

dispute the fact that the accused Afzal was not sent to judicial custody

thereafter, but, on the request of the I.O.\027PW80, the ACMM sent back Afzal to

police custody. Such remand was ordered by the ACMM pursuant to an

application made by PW80 that the presence of Afzal in police custody was

required for the purpose of further investigation. Thus, the last and latter part

of sub-Section (5) of Section 32 was undoubtedly breached. To get over this

difficulty, the learned counsel for the State made two alternative submissions,

both of which, in our view, cannot be sustained.

Firstly, it was contended that on a proper construction of the entirety of

sub-Section (5) of Section 32, the question of sending to judicial custody would

arise only if there was any complaint of torture and the medical examination

prima facie supporting such allegation. In other words, according to the

learned counsel, the expression 'thereafter' shall be read only in conjunction

with the latter part of sub-Section (5) beginning with 'and if there is any

complaint' and not applicable to the earlier part. In our view, such a restrictive

interpretation of sub-Section (5) is not at all warranted either on a plain or

literal reading or by any other canon of construction including purposive

construction. The other argument raised by the learned counsel is that the

provision regarding judicial custody, cannot be read to be a mandatory

requirement so as to apply to all situations. If the Magistrate is satisfied that

the confession appears to have been made voluntarily and the person

concerned was not subjected to any torture or intimidation, he need not direct

judicial custody. Having regard to the circumstances of this case, there was

nothing wrong in sending back Afzal to police custody. This contention cannot

be sustained on deeper scrutiny.

The clear words of the provision do not admit of an interpretation that

the judicial custody should be ordered by the Chief Judicial Magistrate only

when there is a complaint from the 'confession maker' and there appears to be

unfair treatment of such person in custody. As already stated, the obligation to

send the person whose alleged confession was recorded to judicial custody is a

rule and the deviation could at best be in exceptional circumstances. In the

present case, it does not appear that the ACMM (PW63) had in mind the

requirement of Section 32(5) as to judicial custody. At any rate, the order

passed by him on 22.12.2001 on the application filed by PW80 does not reflect

his awareness of such requirement or application of mind to the propriety of

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police remand in the face of Section 32(5) of POTA. Compelling circumstances

to bypass the requirement of judicial custody are not apparent from the record.

The more important violation of the procedural safeguards lies in the

breach of sub-Section (2) read with sub-Section (4) of Section 52. It is an

undisputed fact that the appellants were not apprised of the right to consult a

legal practitioner either at the time they were initially arrested or after the

POTA was brought into picture. We may recall that the POTA offences were

added on 19th December and as a consequence thereof, investigation was

taken up by PW80\027an Asst. Commissioner of Police, who is competent to

investigate the POTA offences. But, he failed to inform the persons under

arrest of their right to consult a legal practitioner, nor did he afford any facility

to them to contact the legal practitioner. The opportunity of meeting a legal

practitioner during the course of interrogation within closed doors of police

station will not arise unless a person in custody is informed of his right and a

reasonable facility of establishing contact with a lawyer is offered to him. If the

person in custody is not in a position to get the services of a legal practitioner

by himself, such person is very well entitled to seek free legal aid either by

applying to the Court through the police or the concerned Legal Services

Authority, which is a statutory body. Not that the police should, in such an

event, postpone investigation indefinitely till his request is processed, but what

is expected of the police officer is to promptly take note of such request and

initiate immediate steps to place it before the Magistrate or Legal Services

Authority so that at least at some stage of interrogation, the person in custody

would be able to establish contact with a legal practitioner. But, in the instant

case, the idea of apprising the persons arrested of their rights under sub-

Section (2) and entertaining a lawyer into the precincts of the police station did

not at all figure in the mind of the investigating officer. The reason for this

refrain or crucial omission could well be perceived by the argument of the

learned senior counsel for the State that the compliance with the requirements

of Section 52(2) of POTA did not arise for the simple reason that at the time of

arrest, POTA was not applied. But this argument ignores the fact that as soon

as POTA was added and the investigation commenced thereunder, the police

officer was under a legal obligation to go through all the procedural safeguards

to the extent they could be observed or implemented at that stage. The non-

invocation of POTA in the first instance cannot become a lever to deny the

safeguards envisaged by Section 52 when such safeguards could still be

extended to the arrested person. The expression 'the person arrested' does not

exclude person initially arrested for offences other than POTA and continued

under arrest when POTA was invoked. The 'person arrested' includes the

person whose arrest continues for the investigation of offences under POTA as

well. It is not possible to give a truncated interpretation to the expression

'person arrested' especially when such interpretation has the effect of denying

an arrested person the wholesome safeguards laid down in Section 52.

The importance of the provision to afford the assistance of counsel even

at the stage of custodial interrogation need not be gainsaid. The requirement is

in keeping with the Miranda ruling and the philosophy underlying Articles 21,

20(3) & 22(1). This right cannot be allowed to be circumvented by subtle

ingenuities or innovative police strategies. The access to a lawyer at the stage

of interrogation serves as a sort of counterweight to the intimidating

atmosphere that surrounds the detenu and gives him certain amount of

guidance as to his rights and the obligations of the police. The lawyer's

presence could pave the way, to some extent, to ease himself of the mental

tension and trauma. In the felicitous words of Finlay, CJ of Ireland in The

People Vs. Healy [(1990) 2 IR 73]:

"The undoubted right of reasonable access to a solicitor enjoyed

by a person who is in detention must be interpreted as being

directed towards the vital function of ensuring that such a person

is aware of his rights and has the independent advice which would

be appropriate in order to permit him to reach a truly free decision

as to his attitude to interrogation or to the making of any

statement, be it exculpatory or inculpatory. The availability of

advice must, in my view, be seen as a contribution, at least,

towards some measure of equality in the position of the detained

person and his interrogators."

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The Parliament advisedly introduced a Miranda ordained safeguard

which was substantially reiterated in Nandini Satpathy by expressly enacting

in sub-Sections (2)&(4) of Section 52 the obligation to inform the arrestee of

his right to consult a lawyer and to permit him to meet the lawyer. The

avowed object of such prescription was to introduce an element of fair and

humane approach to the prisoner in an otherwise stringent law with drastic

consequences to the accused. These provisions are not to be treated as empty

formalities. It cannot be said that the violation of these obligations under sub-

Sections (2) & (4) have no relation and impact on the confession. It is too

much to expect that a person in custody in connection with POTA offences is

supposed to know the fasciculus of the provisions of POTA regarding the

confessions and the procedural safeguards available to him. The presumption

should be otherwise. The lawyer's presence and advice, apart from providing

psychological support to the arrestee, would help him understand the

implications of making a confessional statement before the Police Officer and

also enable him to become aware of other rights such as the right to remain

in judicial custody after being produced before the Magistrate. The very fact

that he will not be under the fetters of police custody after he is produced

before the CJM pursuant to Section 32(4) would make him feel free to

represent to the CJM about the police conduct or the treatment meted out to

him. The haunting fear of again landing himself into police custody soon after

appearance before the CJM, would be an inhibiting factor against speaking

anything adverse to the police. That is the reason why the judicial custody

provision has been introduced in sub-Section (5) of Section 32. The same

objective seems to be at the back of sub-Section (3) of Section 164 of Cr.P.C.,

though the situation contemplated therein is somewhat different.

The breach of the obligation of another provision, namely, sub-Section

(3) of Section 52 which is modelled on D.K.Basu's guidelines has

compounded to the difficulty in acting on the confession, Section 52(3) enjoins

that the information of arrest shall be immediately communicated by the Police

Officer to a family member or in his absence, to a relative of such person by

telegram, telephone or by any other means and this fact shall be recorded by

the Police Officer under the signature of the person arrested. PW80\027the I.O.

under POTA merely stated that "near relatives of the accused were informed

about their arrest as I learnt from the record". He was not aware whether any

record was prepared by the Police Officer arresting the accused as regards the

information given to the relatives. It is the prosecution case that Afzal's

relative by name Mohd. Ghulam Bohra of Baramulla was informed through

phone. No witness had spoken to this effect. A perusal of the arrest memo

indicates that the name of Ghulam Bohra and his phone number are noted as

against the column 'relatives to be informed'. Afzal's arrest memo seems to

have been attested by Gilani's brother who according to the prosecution, was

present at the police cell. But, that does not amount to compliance with sub-

Section (3) because he is neither family member nor relation, nor even known

to be a close friend. We are pointing out this lapse for the reason that if the

relations had been informed, there was every possibility of those persons

arranging a meeting with the lawyer or otherwise seeking legal advice.

Another point which has a bearing on the voluntariness of confession is

the fact that sufficient time was not given for reflection after the accused

(Afzal/Shaukat) were produced before PW60 recording the confession. He

stated in the evidence that he gave only 5 to 10 minutes time to the accused

for thinking/reflection in reply to the question by the counsel for Shaukat

Hussain. It is true as contended by the learned counsel Mr. Gopal

Subramanium that there is no hard and fast rule regarding grant of time for

reflection and the rules and guidelines applicable to a confession under Section

164 Cr.P.C. do not govern but in the present case, the time of 5 or 10 minutes

is, by all standards, utterly inadequate. Granting reasonable time for reflection

before recording a confession is one way of ensuring that the person

concerned gets the opportunity to deliberate and introspect once again when

he is brought before the prescribed authority for recording the confession.

That it is one of the relevant considerations in assessing the voluntariness of

the confession is laid down in Sarwan Singh Vs. State of Punjab [1957

SCR 953].

All these lapses and violations of procedural safeguards guaranteed in

the statute itself impel us to hold that it is not safe to act on the alleged

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confessional statement of Afzal and place reliance on this item of evidence on

which the prosecution places heavy reliance.

The learned senior counsel for the State has laid considerable stress on

the fact that the appellants did not lodge any protest or complaint; on the

other hand, they reaffirmed the factum of making confession when they were

produced before the ACMM on the next day. It is further pointed out that as

far as Afzal is concerned, it took nearly seven months for him to refute and

retract the confession. After giving anxious consideration, we are unable to

uphold this contention. The omission to challenge the confessional statement

at the earliest before the Magistrate shall be viewed in the light of violation of

procedural safeguards which we have discussed in detail earlier.

As regards the delay in retracting, the first fact to be taken note of is

that the appellant Afzal was evidently not aware of the contents of the

confessional statement on the day on which he was produced before the ACMM

because the learned Magistrate did not make it available to him for perusal nor

the gist of which was made known to him. We find nothing in the proceedings

of the ACMM to that effect. It was only after the charge sheet was filed in the

Court on 14th May and a copy thereof was served to him that he became

aware of the details of the confessional statement. Then Afzal filed a petition

before the trial Court on 2.7.2002 stating that "I have given a statement in

front of police during custody and not before the DCP or ACP as mentioned in

the charge sheet. I found that my statement has been grossly manipulated

and twisted in a different form and formation by the police, especially my

statements regarding Afsan Guru and SAR Gilani. Therefore, I am requesting

to your honour to record my statement in the Court." This was followed by

another petition filed on 15th July, the main purpose of which was to highlight

that Mr. Gilani and the other accused had no direct or indirect connection.

Thus, we cannot hold that there was abnormal delay in disowning the

confession, the effect of which would be to impart credibility to the

confessional statement.

It is then pointed out that the grounds on which the confessional

statement was refuted by Afzal, are not consistent. Whereas Afzal stated in

the petition dated 2.7.2002 as above, in the course of his examination under

Section 313, Afzal stated that he signed on blank papers. We do not think that

this so-called discrepancy will give rise to an inference that the confessional

statement was true and voluntary. We have to look to the substance of what

the accused said while refuting the statement rather than building up a case

on the basis of some inconsistencies in the defence plea.

(v) Circumstances against Afzal

We shall now consider the circumstantial evidence against Afzal

independent of and irrespective of the confession.

The first circumstance is that Afzal knew who the deceased terrorists

were. He identified the dead bodies of the deceased terrorists. PW76

(Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady

Harding Medical College and he identified the five terrorists and gave their

names. Accordingly, PW76 prepared an identification memo\027Ext.PW76/1

which was signed by Afzal. In the postmortem reports pertaining to each of the

deceased terrorists, Afzal signed against the column 'identified by'. On this

aspect, the evidence of PW76 remained un-shattered. In the course of his

examination under Section 313, Afzal merely stated that he was forced to

identify by the police. There was not even a suggestion put to PW76 touching

on the genuineness of the documents relating to identification memo. It may

be recalled that all the accused, through their counsel, agreed for admission of

the postmortem reports without formal proof. Identification by a person in

custody of another does not amount to making a statement falling within the

embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of

Evidence Act as a piece of evidence relating to conduct of the accused person

in identifying the dead bodies of the terrorists. As pointed out by Chinnappa

Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400];

"There is a clear distinction between the conduct of a person

against whom an offence is alleged, which is admissible under

Section 8 of the Evidence Act, if such conduct is influenced by any

fact in issue or relevant fact and the statement made to a Police

Officer in the course of an investigation which is hit by Section 162

Criminal Procedure Code. What is excluded by Section 162 Criminal

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Procedure Code is the statement made to a Police Officer in the

course of investigation and not the evidence relating to the conduct

of an accused person (not amounting to a statement) when

confronted or questioned by a Police Officer during the course of an

investigation. For example, the evidence of the circumstance,

simpliciter, that an accused person led a police officer and pointed

out the place where stolen articles or weapons which might have

been used in the commission of the offence were found hidden,

would be admissible as conduct, under Section 8 of the Evidence

Act, irrespective of whether any statement by the accused

contemporaneously with or antecedent to such conduct falls within

the purview of Section 27 of the EvidenceAct (vide Himachal

Pradesh Administration Vs. Om Prakash [AIR 1972 SC

975]).

The second circumstance is the frequent telephonic contacts which Afzal

had established with Mohammed. Even minutes before the attack, as many as

three calls were made by Mohammed to Afzal from his phone No. 9810693456

which was operated with the instrument having IMEI No. 35066834011740(2)

that was recovered from Mohammed's body, as seen from Ext. PW 35/2. The

SIM Card relating thereto was also found in Mohammed's purse. Not only that,

there is clear evidence to the effect that the mobile instruments were being

freely exchanged between Afzal and Mohammed and other terrorists. This is

the third circumstance.

Before going into the details on these aspects, it may be noted that the

handset found in the truck in which Afzal was travelling and which he pointed

out to the police was having IMEI No. 350102209452430. It was a mobile

phone instrument of Nokia make and it was being used for the operation of

phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was

furnished by PW61 and PW62. Its IMEI number and the cell phone number

with which it was being operated is established by the evidence of investigating

officer coupled with the call records filed by the witnesses. It is also clear from

the call record that it was the last instrument on which the said number

\00589429 had been operated as late as 13.12.2001.

The fact that the instrument bearing number \005\005\00552430 was being

carried by Afzal in the truck would give rise to a reasonable inference that the

cell-phone number with which the instrument was being operated was that of

Afzal and the said phone number was under his use. The appellant, Afzal,

apart from denying the recovery at Srinagar\027which denial cannot be said to be

true, did not account for the custody of the phone. The said phone number

cannot be related to Shaukat who was also travelling with Afzal because

Shaukat was having his own phones which were seized from his residence on

15th December. In the circumstances, even a presumption under Section 114

can be drawn that the number 9811489429 was at all material times being

used by the accused, Afzal.

The facts that the SIM card was not found in the mobile phone and that

the IMEI number of the instrument was not noted by PW 61 cannot be the

grounds to disconnect Afzal from the custody of the said phone. The IMEI

number found on the phone was sent to trace the number of the cell phone.

One more point has to be clarified. In the seizure memo (Ext. 61/4), the

IMEI number of Nokia phone found in the truck was noted as \005\00552432. That

means the last digit '2' varies from the call records wherein it was noted as

\005\00552430. Thus, there is a seeming discrepancy as far as the last digit is

concerned. This discrepancy stands explained by the evidence of PW 78 \026 a

computer Engineer working as Manager, Siemens. He stated, while giving

various details of the 15 digits, that the last one digit is a spare digit and the

last digit, according to GSM specification should be transmitted by the mobile

phone as '0'. The witness was not cross-examined.

This mobile number ..89429 was also used in the instrument No. IMEI

449269219639010 recovered from the deceased terrorist Raja and was then

used in the handset having number 350102209452430(2) i.e. the instrument

recovered from the truck at Srinagar, as pointed out by the High Court at

paragraph 325 of the judgment. The instrument recovered from Raja was the

one used by Afzal i.e. on phone No.\00589429 between 6.11.2001 and

23.11.2001. The mobile instrument recovered from Rana (IMEI

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449269405808650) (Cell phone No.9810302438) was used by Mohammed who

in turn was using the phone of Afzal also. This was the phone that was

purchased by Afzal from PW49\027Kamal Kishore.

Now, we shall proceed to give further details of the phone calls and the

instruments used, more or less in a chronological order insofar as they throw

light on the close association of Afzal with the deceased terrorists. The SIM

Cards related to the mobile phones bearing Nos. 9810693456 and 9810565284

were recovered from the purse of the deceased terrorist Mohammed. The first

call from the first number was from Mohammed to a Delhi landline number on

21.11.2001. The first call to the second number was from Bombay on

24.11.2001. It shows that these two phones were activated by Mohammed in

the third week of November, 2001 when he was in Delhi. It is established from

the call records that the second call from the Bombay number to Mohammed

was received when the said mobile number (9810565284) was being used in

the handset having IMEI No. 449269219639010(2). This is the same handset

which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3).

Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset

which was being used by Afzal which reveals the nexus between both.

Evidence of the computer experts PWs 72 & 73 together with their

reports (Ext.PW73/1 & 73/2) would reveal that a file named Radhika.bmp was

created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the

name of Sanjay Sharma is found and it contains the address No.10, Christian

Colony, where Mohammed was staying and the phone No. 9811489429

(belonging to Afzal). The other I.Cards recovered from the body of the

deceased terrorist which were fake ones, were also prepared from the same

laptop as established by the testimony of PW72 and PW59. Thus, together with

the activation of phones, simultaneous activity on the laptop to create bogus

I.Cards was going on at the same time i.e. 21.11.2001 onwards.

On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed

to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001.

This gap is explained by the prosecution by referring to the confessional

statement of Afzal wherein he said that towards the end of November, he

(Afzal) went to Kashmir and came back to Delhi along with two other terrorists

in the first week of December. But as the confessional statement is not taken

into account, we cannot take note of that explanation. On 5th December, 2001,

Mohammed called two Dubai numbers from his mobile phone No. 9810565284

and the call record\027Ext.PW35/4 would show that Mohammed made those calls

to Dubai by using the same handset which was being used by Afzal for his

number 9811489429. PW49, who identified Afzal in the Court, testified to the

fact that Afzal had purchased Motorola mobile phone of model 180 from his

shop on 4.12.2001 which tallies with the description of the phone bearing the

IMEI number referred to above.

The next point to be noted is that the said phone instrument bearing

IMEI No. \005\00539010 was finally recovered from the deceased terrorist Raja as

per the seizure memo (Ext.PW2/2). A perusal of the call record discloses that

the said instrument was being used by the accused Afzal (with his number

...89429) till the noon of 12.12.2001. It shows that such interchange of phones

would not have been possible, but for the meeting of the Afzal with the slain

terrorists on 12th December. There were calls to the mobile number

9810693456 the SIM Card of which was recovered from the body of

Mohammed vide Ext.PW4/8 and which was being operated from the instrument

IMEI No. 449269405808650 (Ext.PW35/5). On 7th & 8th December, Afzal called

Mohammed seven times from his phone No. 9811489429 to Mohammed's No.

9810693456 and the said mobile of Mohammed was being used in IMEI No.

\005808650 (Ext.PW35/5). Thus Mohammed used the same Motorola phone

(Ext.P28) which was finally recovered from the deceased Raja vide seizure

memo (Ext.PW2/2) on the SIM card (described as 'Magic Card') for the No.

9810693456 and the said card was recovered from Mohammed vide

Ext.PW4/8. As per the testimony of PW49, the said Ext.P28 was purchased by

Afzal. It is pertinent to note that the said instrument was never used by Afzal

though it was purchased by him but it was being used by Mohammed and it

ultimately reached Raja.

The deposition of PW44 discloses that Afzal, who was identified by him in

the Court, came to his shop on 7th or 8th December and purchased a mobile

phone of J70 model of Sony make which he identified as Ext.P-37 seized under

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Ext.PW4/14 from the body of Mohammed. Its IMEI number was

35066834011747/2 and its cell-phone number was found to be 9810511085.

This fact would only lead to the inference that contemporaneous to the crucial

incident of 13th December, Afzal met Mohammed and supplied the handset of

the mobile phone. That apart, we find the exchange of calls between them.

From the call records in Parts VI & IX, it is evident that Afzal was in touch with

Mohammed over phone on seven occasions on 7th and 8th December and they

were using the two phones with the Cell numbers referred to supra, though,

two or three calls of them were of very short duration. It may also be noticed

that a satellite phone contacted Afzal for a short-while on his number

9811489429 and the same satellite phone contacted Mohammed on his phone

No. 9810693456 on 10th December for five minutes. On 12th December,

Mohammed contacted Raja for 83 seconds and thereafter a satellite phone

contacted Mohammed for 11 minutes and the same satellite phone contacted

Raja twice for about 3= minutes. This is borne out by call records at volume

VI. The phone number of Raja was 9810510816 as discovered from the phone

instrument recovered from his body.

Then we come to the crucial day i.e. 13.12.2001. Mohammed called

Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the

Parliament. This is borne out by the call records of 9810693456 and

9811489429 (phones traceable to Mohammed and Afzal, respectively). At

about the same time, there was exchange of calls between Afzal and Shaukat

on their phone numbers .\005.89429 and \005\005.73506. The call records at Part IX,

Page 20 pertaining to 9811489429\027the user of which can be traced to Afzal

and the instruments recovered would reveal that the SIM Card pertaining to

the said mobile number (\00589429) was activated on 6th November and was

used on the handset bearing IMEI No. 449269219639010 recovered from the

deceased terrorist Raja as per Ex. PW2/2. The call record would further show

that its user was discontinued on 29th November till 7th December, when,

again, it was put to use on 12th December. The last call was at 12 noon.

Thereafter, the SIM Card pertaining to this number (i.e. \005.89429) was used in

the handset No. 350102209452430, which is the instrument (Ext.P84)

recovered from the truck at Srinagar, on being pointed out by Afzal. The

picture that emerges is this: The fact that an instrument used by Afzal (with

the phone number 9811489429) till 12.12.2001 was recovered from one of the

deceased terrorists on the date of incident, reveals that Afzal would have

necessarily met the deceased terrorist between the afternoon of 12th December

and the morning of 13th December.

One point urged by Shri Sushil Kumar is that although the sanction order

authorized the interception of Phone No. \005..06722, there is no evidence

regarding the details of investigation of the calls made or received from that

number. No question was put to the witnesses on this point. It is quite

probable that the investigator would have entertained some suspicion in this

regard and would have, by way of caution sought permission to intercept. That

does not cast a cloud on the prosecution case built up on the basis of the call

records pertaining to the phones used by the accused. We can draw no adverse

inference from the fact that the details of aforementioned number was not

given.

(vi) Hideouts and recoveries

The other circumstances which prominently shed light on the

involvement of the accused Afzal relate to the discovery of the abodes or

hideouts of the deceased terrorists and the recovery of various incriminating

articles therefrom as well as the identification of certain shops from where the

appellant and one or the other deceased terrorist purchased various items used

for preparation of explosives etc. These are spoken to by PW76\027Inspector Gill,

the landlords of the concerned premises and the shopkeepers. The

informations furnished to the Investigating Officers leading to the discovery of

facts and the conduct of the accused in pointing out the places where the

terrorists stayed are admissible either under Section 27 or Section 8 of the

Evidence Act and they supplement the evidence furnished by the I.Os., the

landlords and the shopkeepers.

Before proceeding further, we may advert to Section 8 of the Evidence

Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an

accused person relevant, if such conduct influences or is influenced by any fact

in issue or relevant fact. It could be either previous or subsequent conduct.

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There are two Explanations to the Section, which explains the ambit of the

word 'conduct'. They are:

Explanation 1 : The word 'conduct' in this Section does not

include statements, unless those statements accompany and

explain acts other than statements, but this explanation is not to

affect the relevancy of statements under any other Section of this

Act.

Explanation 2 : When the conduct of any person is relevant,

any statement made to him or in his presence and hearing, which

affects such conduct, is relevant.

The conduct, in order to be admissible, must be such that it has close

nexus with a fact in issue or relevant fact. The Explanation 1 makes it clear

that the mere statements as distinguished from acts do not constitute 'conduct'

unless those statements "accompany and explain acts other than statements".

Such statements accompanying the acts are considered to be evidence of res

gestae. Two illustrations appended to Section 8 deserve special mention.

(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's presence\027"the

police are coming to look for the man who robbed B", and that

immediately afterwards A ran away, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he

absconded, or was in possession of property or the proceeds of

property acquired by the crime, or attempted to conceal things

which were or might have been used in committing it, are relevant.

We have already noticed the distinction highlighted in Prakash Chand's

case (supra) between the conduct of an accused which is admissible under

Section 8 and the statement made to a police officer in the course of an

investigation which is hit by Section 162 Cr.P.C. The evidence of the

circumstance, simplicitor, that the accused pointed out to the police officer, the

place where stolen articles or weapons used in the commission of the offence

were hidden, would be admissible as 'conduct' under Section 8 irrespective of

the fact whether the statement made by the accused contemporaneously with

or antecedent to such conduct, falls within the purview of Section 27, as

pointed out in Prakash Chand's case. In Om Prakash case (supra) [AIR

1972 SC 975], this Court held that "even apart from the admissibility of the

information under Section, the evidence of the Investigating Officer and the

Panchas that the accused had taken them to PW11 (from whom he purchased

the weapon) and pointed him out and as corroborated by PW11 himself would

be admissible under Section 8 as 'conduct' of the accused".

Coming to the details of evidence relating to hideouts and recoveries, it

is to be noted that the accused Afzal is alleged to have made a disclosure

statement to PW66\027Inspector Mohan Chand Sharma on 16th December, 2001.

It is marked as Ext.PW64/1. In the said disclosure statement, all the details of

his involvement are given and it is almost similar to the confessional statement

recorded by the DCP. The last paragraph of the statement reads thus:

"I can come along and point out the places or shops of Delhi

wherefrom I along with my other associates, who had executed the

conspiracy of terrorist attack on the Parliament, had purchased the

chemicals and containers for preparing IED used in the attack, the

mobile phones, the SIM Cards and the Uniforms. I can also point

out the hideouts of the terrorists in Delhi. Moreover, I can

accompany you and point out the places at Karol Bagh wherefrom

we had purchased the motorcycle and Ambassador car. For the time

being, I have kept the said motorcycle at Lal Jyoti Apartments,

Rohini with Nazeer and I can get the same recovered. \005"

This statement has been signed by Mohd. Afzal. In fact it is not required

to be signed by virtue of the embargo in Section 162(1). The fact that the

signature of the accused Afzal was obtained on the statement does not,

however, detract from its admissibility to the extent it is relevant under

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Section 27.

We shall now consider the details of evidence on these aspects. PW76\027

I.O. deposed that the two accused persons, namely, Afzal / Shaukat led him to

the following places:

(i) Hideout at 2nd floor, A-97, Gandhi Vihar (PW34)

(ii) Hideout at 2nd floor, 281, Indira Vihar (PW31 & PW32)

(iii) Shop of PW40\027Anil Kumar from where Ammonium Nitrate was

purchased.

(iv) Shop of PW42\027Ramesh Advani from where Silver powder was

purchased.

(v) Shop of PW41\027Ajay Kumar\027Sawan Dry Fruits from where dry

fruits were purchased.

(vi) Shop of PW43\027Sunil Kumar Gupta at Fatehpuri where Sujata

Mixer was purchased.

(vii) Shop at Hamilton Road from where red light was purchased.

(viii) Shop of PW29\027Gupta Auto Deals from where motorcycle

HR51E5768 was purchased.

(ix) Shop of PW44\027Sandeep Chaudhary at Ghaffar Market from

where Sony cellphone was purchased.

(x) Shop of PW20\027Harpal Singh at Karol Bagh from where

Ambassador Car bearing DL 3CJ 1527 was purchased.

(xi) Shop of PW49\027Kamal Kishore from where Motorola cell phone

and a SIM card were purchased.

Now, we shall refer to the specific details of evidence in this regard.

PW76\027I.O. deposed to the fact that Afzal and Shaukat pointed out the 2nd

floor of A97, GANDHI VIHAR as the place where the deceased terrorists stayed.

This is recorded by PW76 in the memo marked as Ext.PW34/1. PW76 deposed

that on his request, the landlord of the house\027PW34 accompanied him to the

2nd floor and the lock of the house was broken and the premises searched in

the presence of PW34. The various articles recovered and seized consequent

upon the search of the premises are recorded in Ext.PW34/1. They are: (a) 3

electronic detonators (Ext.P60/1, 60/2 & 60/3). (b) two packets of silver

powder bearing the address 'Tola Ram & Sons, 141, Tilak Bazar, Delhi'

(Ext.P61). (c) A bucket (Ext.P62) of prepared explosive material. Sample of

explosive material is Ext.P63. (d) two boxes containing Sulphur (Ext.P64 &

P65). (e) two cardboard cartons (Ext.P66 & P67) containing 20 jars each of

Ammonium Nitrate of 500 grams each (Ext.P68/1 to Ext.P68/38) (one jar was

taken out from each carton as a sample). (f) Yamaha motorcycle bearing

No.DL-1S-K-3122 (Ext.P76) found at the gate of the house and seized as per

Ext.PW34/2. (g) Maps of Delhi city and Chanakyapuri area found in the room

vide Ext.P34/3. (h) Police uniforms and police beret caps (P73 series). (i)

Sujata Mixer Grinder with three jars (Ext.P72) seized as per Ext.PW34/4.

PW34 confirmed this fact in his deposition. In addition, PW34 identified

Afzal and Shaukat in the Court and stated the following facts:

That Afzal had introduced himself under an assumed name of Maqsood

and took the 2nd floor on rent in the first week of November, 2001. That

Shaukat and three or four boys used to visit Afzal at that premises quite often

and on the crucial day i.e. 13.12.2001, at 10 am, Afzal, Shaukat and four more

persons left in an Ambassador car and Afzal had returned a shortwhile later

and then left the premises subsequently. That the deceased terrorist

Mohammed, whose photograph he identified, was also residing with Afzal

sometime after the premises was taken on rent.

The High Court accepted the testimony of PW34 including the

identification of the deceased Mohammed by photograph (Ext.PW1/20). He

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could not identify the remaining four terrorists.

Next, we come to the evidence in regard to the premises at INDIRA

VIHAR and the recoveries therefrom. Mohd. Afzal, while being examined under

Section 313 Cr.P.C. admitted that the house at 281, Indira Vihar was taken on

rent by him after his return to Delhi after Eed. PW76 deposed to the fact that

Afzal and Shaukat led him and the police party to the premises at 281, Indira

Vihar as the place where Afzal and the five slain terrorists stayed. The memo

of pointing out is Ext.PW32/1. PW32, who is the landlord, stated that on 16th

December, 2001, the accused Afzal and Shaukat whom he identified correctly,

were brought to his house by the police and Afzal told the police that he was

the landlord. Thereafter, the police took him and the two accused to the 2nd

floor which was found locked and as there was no key, the police broke the

lock. PW32 then stated that on a search of the premises, a number of articles

as recorded in the memo of seizure\027Ext.PW32/1 were found. The articles

recovered as a result of search were, (i) three electric detonators attached with

a wire kept in a box, (ii) six pressure detonators fitted in a plastic box, (iii) two

silver powder packets of thousand grams each with the slips containing the

name of 'Tolaram and Sons, Tilak Bazar', (iv) two boxes of sulphur, (v) a

motorcycle of Yamaha make parked near the gate of the house, (vi) household

articles etc. PW 32 attested the seizure memo.

The motorcycle was seized as per the seizure memo\027Ext.PW32/2. It

transpires from the evidenc eof PW53 who is an official of the Road Transport

Department read with Ext.PW53/1 that the said motorcycle was registered in

the name of Shaukat Hussain.

In connection with the renting of the house at Indira Vihar, PW31 who is

a property dealer, was examined. He stated that Mohd. Afzal approached him

and on 9.12.2001 he fixed up the house of PW32 at Indira Vihar on a rent of

Rs.4000 p.m. He identified Mohd. Afzal. PW32\027the landlord confirmed in his

deposition that the 2nd floor of the house was taken on rent by Mohd. Afzal

through PW31. He further stated that he imposed a condition that the tenant

should reside with his family only. Having found some five or six other persons

on 11.12.2001, he questioned Afzal on which he replied that they were his

friends and they would leave soon and thereafter he would be bringing his

family. On 12.12.2001, Afzal left the premises locking the door informing him

that he would bring his family and children after Eed. Then he speaks to the

details of search and seizure. He was a signatory to the seizure memos

Exts.PW32/1 and PW32/2.

The High Court held that the factum of Mohd. Afzal taking the premises

on tenancy, the recovery of articles and detonators on 16.12.2001 and the fact

that five or six persons were visiting the premises were found to be established

by the testimony of PWs 31 & 32. Though PW32 is supposed to have identified

the persons found with Afzal by the photographs of dead bodies of terrorists,

we do not attach any weight to this part of the evidence because the police

showed the photos and told him that they were the photographs of deceased

terrorists. He also did not take into account this part of testimony of PW32. At

this stage, we may refer to the evidence of the experts of Forensic Science

Laboratory, Chandigarh. PW22 testified in regard to the explosives contained in

I.E.D. and the car bomb which was recovered from the scene of offence on 13th

December, 2001. From his report\027Ext.PW21/1 and PW21/2, it is evident that

Ammonium Nitrate, Aluminum/Silver powder and Sulphur was found in the

explosives. The testimony of PW24 establishes that the samples of chemicals

(collected from the hideouts) were Aluminum Nitrate, Sulphur and Silver

powder. The same were found in the unused explosives.

Amongst the hideouts furnishing the links of association between the

accused Afzal and the deceased terrorist Mohammed is the one in the Boys'

hostel, Christian Colony. It is in the evidence of PW38 who was running an STD

booth at Christian Colony that Afzal and Shaukat met him and made enquiries

about the availability of rented accommodation. Then on 6.11.2001 he took

him to PW37 who was running a hostel at B-41, Christian Colony. PW38

identified Afzal and Shaukat. PW37 deposed that he let out a room on the

Ground Floor and when he went to the hostel on 26th November, he found one

Kashmiri boy in the room who disclosed his name as Ruhail Ali Shah. It may be

noted that the witness identified the said Ruhail Ali Shah as the deceased

terrorist Mohammed by reference to his photograph (Ext.PW29/5) in the

presence of police and in the Court. The identity card of Ruhail Ali Shah

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(Ext.PW4/4) shown to him was also identified and it is the card that was found

at the spot of offence. PW37 also stated that he had seen Afzal and Shaukat

visiting the so called Ruhail Ali Shah. It may be noted that the said room in

Christian Colony was taken on rent at about the same time when the premises

at Gandhi Vihar was hired. The testimony of this witness was found to be

reliable by the High Court. We see no good reason to discard his evidence on

the ground that he did not produce the record of their stay.

Now we turn our attention to the evidence given by the shopkeepers in

regard to the purchase of various things by the accused Afzal himself or in the

company of others.

(vii) Purchases from shops

The next circumstance which provides important links in the chain of

circumstantial evidence is that the accused Afzal led the Investigating Officer

to various places from where the incriminatory articles found in the premises at

Gandhi Vihar and Indira Vihar and at the scene of offence were purchased.

Now we shall briefly refer to the evidence in regard to the purchase of

chemicals used in explosives and the Mixture-Grinder utilized for preparing the

explosive substance. PW-76 recorded in Ex. 40/1 dated 17.12.01 that Afzal

furnished information that he had visited the shop of PW-40 along with

deceased accomplice Hamza at Tilak Bazar and purchased 50kg of ammonium

nitrate packed in = kg. boxes and that he would show the shop. Accordingly,

Afzal led the Police to the shop of PW-40 and identified the proprietor which

fact is relevant and admissible under Section 8 of the Evidence Act. PW-40

identified the accused \026 Afzal, in the Court and stated that he came to his shop

on 6.12.01 to purchase ammonium nitrate and that he placed an order for

50kg, paid an advance of Rs. 800/- and came the next day to take delivery of

the same. On 7.12.01, he came with one more person, paid the balance and

took the delivery of 50kg ammonium nitrate which was packed in = kg plastic

bags.

In view of the short time gap and the order for a large quantity, there is

no reason to doubt the identification of Mohd. Afzal \026 PW 40. We have already

seen that ammonium nitrate was one of the chemicals recovered from the

premises at Gandhi Vihar. PW-40 also identified the deceased Hamza by his

photograph - Ext.40/2. According to PW-40, it is he who accompanied Afzal

the next day. However, in the memo of pointing out which is Ext.40/1, it was

recorded that Afzal disclosed that he visited the shop with Haider. This

discrepancy or mistake in recording the name does not make a dent on the

veracity of evidence of PW-40 on the point of identification of photograph in

Ext. 40/2. The High Court accepted the evidence of PW-40. Then, about the

purchase of silver powder, PW-76 recorded in Ex. 42/1 that Afzal disclosed

having purchased the silver powder from the shop of PW-42. It may be stated

that on the packets of silver powder (Ex.P/51), the name and address 'Tolaram

& Sons, 141, Tilak Bazar' was written. Thus, the name and address of the

shop was already known to the Police. Therefore, Section 27 cannot be pressed

into service. However, the conduct of Afzal in pointing out the shop and its

proprietor (PW42) would be relevant under Section 8 of the Evidence Act. PW-

42 in his deposition testified to the factum of purchase of 50 kgs of silver

powder by Afzal on 11.12.01. The witness identified the seized samples as

having been sold by him. He also identified Afzal. He specifically stated that

the quantity purchased by him being large, Afzal's presence was very much

there in his memory. It may be recalled that silver powder was recovered

from the premises at Indira Vihar. The samples seized from Indira Vihar were

identified by PW-42. It is to be noted that Aluminium powder was one of the

ingredients used in the IEDs found in the possession of the deceased terrorists

at the Parliament complex.

Another item of purchase was dry fruits. Three polythene packets of dry

fruits bearing the name of 'Sawan Dry Fruits' (Ex. P/10) and having the

address 6507, Fatehpuri Chowk were recovered at the scene of offence near

the bodies of the deceased. PW-76 stated that Afzal led them to the shop of

Sawan Dry Fruits. PW41\027the salesman, gave evidence regarding the

transaction of sale on 11.12.01. He identified the accused Afzal as the person

who had purchased the dry fruits. The witness also identified the photograph

of Rana even as that of the person who accompanied Afzal. PW41 also stated

that Afzal was in the shop for nearly half an hour. The High Court, while

observing that there was nothing to discredit the evidence of PW-41, it,

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however, ignored his testimony on a tenuous ground that the Police were

already aware of the source of purchase of the dry fruits. Though there was no

discovery within the meaning of Section 27, there is no reason why the

evidence of PW-41 should be eschewed on that account. However, in regard to

the identification of the pfotograph of deceased terrorist, his evidence does not

inspire confidence, in view of the time lag of 8 months and the manner in

which the answer was sought to be elicited from him. Then, we have the

evidence of purchase of Sujata Mixer-Grinder (Ext.P72) which was found in the

hideout at Gandhi Vihar. PW-76 deposed that Afzal took the investigating

team to an electrical shop at Fatehpuri from where the Mixer-Grinder was

purchased. The memo of pointing out is Ex. 76/2. The pointing out of the

shop and the identification of the owner of the shop wherefrom the purchase

was made are relevant facts to show the conduct of the accused referred to in

Section 8 of the Evidence Act. In any case, the evidence of PW-43 establishes

the fact that Afzal bought the Mixer-Grinder of Sujata make on 7.12.01. The

relevant cash memo was filed by him. The witness identified Afzal in the Court

and also the Mixer-Grinder. The High Court has accepted the testimony of this

witness. Thus, the nexus between the Mixer-Grinder which was recovered

from the premises at Gandhi Vihar and the one purchased by Afzal from the

shop of PW-43 stands established by the evidence on record. The evidence of

the report of the experts, namely PWs 22 & 24 establish, as held by the High

Court, that the composition of chemicals found sticking to the jar of the mixer

grinder and the chemicals in the bucket were of the same composition as was

the composition of the chemicals in the explosives seized from the deceased

terrorists at Parliament House.

Another item of purchase was a motorcycle of the Yamaha make bearing

registration No.HR-51-E-5768. PW76 stated that on 18.12.2001 the accused

Afzal took the investigating team to Gupta Auto Deals at Karol Bagh from

where the said motorcycle was purchased and he pointed out the shop owner\027

PW29. The memo of pointing out is Ext.PW29/1. This conduct of Afzal is

relevant under Section 8 of the Evidence Act. PW29 deposed that four persons

including a lady came to his shop in the noon time to see the motorcycle. After

taking trial run, they went away and in the evening two persons came and

purchased the motorcycle for Rs.20,000/-. As already noticed, the said

motorcycle was found at A-97, Gandhi Vihar and the same was seized by the

I.O. The witness handed over the book containing the delivery receipt

(Ext.29/2 & 29/3) to the police, which were filed in the Court as PW29/2 &

PW29/3. The witness identified Afzal and Shaukat in the Court and the

deceased terrorist Mohammed from the photograph (Ext.29/5). He was

however unable to identify the lady in view of the fact that she was at a

distance. The High Court rightly took the view that in view of what was

narrated by the witness, the identification of the accused and the deceased

terrorist was quite probable. It was not a case of 'fleeting glance'. This is a

discrepancy between the seizure memo (PW29/4) dated 19.12.2001 and the

statement of PW29 under Section 161 Cr.P.C. that he handed over the papers

on 18.12.2001. This apparent contradiction was not pointed out to the witness

and no question was asked about it. The next important circumstance against

the accused Afzal is his association with Mohammed in purchasing the

Ambassador car with registration No.DL-3CJ-1527 from PW20. The fact that

the said car was used by the slain terrorists for entering the Parliament with

arms and explosives, is not in dispute. PW20 after hearing the news that the

car with the said number was used by the terrorists, he straight went to the

Parliament Street Police Station along with the copies of documents. Having

learned that his SHO was at the Parliament House, he went there and met the

SHO at the gate and passed on information to him that the car was sold by him

on 11.12.2001 to one Ashiq Hussain Khan. He identified the car, which was

lying at gate No.11, then he handed over the documents pertaining to the car

which were seized under the memo\027Ext.PW1/7. The documents were later

filed in the Court. PW20 correctly identified the accused Afzal as the person

who had come with Ashiq Hussain Khan for the purchase of car. The delivery

receipt of the car issued by Ashiq Hussain Khan is Ext.PW1/6. The delivery

receipt was signed by Afzal as a witness. The signature of Afzal on the delivery

receipt is proved by the analysis of his handwriting by the expert\027PW23. This

is apart from the testimony of PW20. In the course of examination under

Section 313 Cr.P.C., Afzal admitted that on 11.12.2001 he accompanied

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Mohammed to the shop of PW20 for purchasing a secondhand car but later he

denied it. It is also worthy to note that Afzal did not let the amicus to put a

suggestion that he had not visited the shop of PW20. PW20 deposed that he

had taken photocopy of the I.Card and a coloured photo of Ashiq Hussain

Khan, which are Exts.PW25/4 & PW20/3. PW20 further deposed that the dead

body lying at Gate No.1 was of the same person who had introduced himself as

Ashiq Hussain Khan while purchasing the car. When he was shown Ext.PW4/3

which is the I.Card in the name of Ashiq Hussain Khan recovered from the

deceased terrorist Mohammed, PW20 confirmed that it was the same I.Card

that was shown to him. The High Court held that the evidence of PW20, who

was an independent witness, was in no manner tainted and held that Afzal was

involved in the purchase of the car used by the terrorists to enter the

Parliament House. This conclusion was reached by the High Court even after

excluding the evidence of PW23, Principal Scientific Officer who confirmed that

the signatures on the delivery receipt\027Ext.PW1/6 tallied with his specimen

signatures. In this context, a contention was raised before the High Court that

in view of Section 27 of POTA, specimen signature should not have been

obtained without the permission of the Court. In reply to this contention urged

before the High Court, Mr. Gopal Subramanium, the learned senior counsel for

the State clarified that on the relevant date, when the specimen signatures of

Afzal were obtained, the investigation was not done under the POTA provisions

and de hors the provisions of POTA, there was no legal bar against obtaining

the handwriting samples. The learned counsel relied upon by the 11 Judge

Bench decision of this Court in State of Bombay Vs. Kattikalu Oghad [1962 (3)

SCR 10] in support of his contention that Article 23 of the Constitution was not

infringed by taking the specimen handwriting or signature or thumb

impressions of a person in custody. Reference has also drawn to the decision of

this Court in State of U.P. Vs. Boota Singh [(1979) 1 SCC 31]. We find

considerable force in this contention advanced by Mr. Gopal Subramanium. In

fact this aspect was not seriously debated before us.

The purchase of mobile cellular phone instruments by Afzal in the shops

of PW44 and PW49, accompanied by Shaukat, is another important

circumstance that can be put against him. As already noticed, these mobile

instruments found their way to one or the other deceased terrorists and they

were being interchangeably used by Afzal, Mohammed and Rana. The evidence

of PW76 coupled with Ext.PW44/1 (pointing out memo) reveals that the

accused Afzal took the police party to shop No.26, Gaffar Market and pointed it

out as the shop from which he purchased the mobile phone handset of Sony

make. The conduct of the accused in pointing out the shop and identifying the

shop owner is relevant under Section 8 of the Evidence Act.

PW44 - the shop owner identified Afzal and the mobile phone (Ext.P37)

sold to him on 7/8.12.2001. The said instrument (Ext.P37) was recovered from

the body of the deceased terrorist Mohammed vide Ext.PW4/14. He was

confronted with some discrepancy as to the exact date of purchase, which does

not appear to us to be very material. The fact that the transaction was

unaccounted is also not a ground to eschew his evidence especially when the

High Court found that his evidence was trustworthy. There is no warrant for

the further observation of the High Court that independent corroboration of his

testimony was lacking and therefore the evidence was liable to be ignored.

Regarding the purchase of Motorola mobile phone (Ext.P28), PW76

deposed that on 19.12.2001, the accused Afzal led the investigating officials to

the shop of PW49 at B-10, Model Town from where the said mobile phone was

purchased. The memo of pointing out is Ext.PW49/1. The conduct of the

accused in leading the I.O. to the shop of PW49 and identifying him as the

shop owner becomes relevant under Section 8 of the Evidence Act. PW49,

while identifying Afzal and Shaukat in the Court deposed about the sale of the

phone and one SIM Card to the said persons. The said phone which was sold

by PW49 to the accused was recovered from the deceased terrorist Rana vide

Ext.PW2/2. This statement of the witness was assailed on the ground that the

SIM Card pertaining to the No. 9811489429 was stated to have been sold on

4.12.2001. However, the call records pertaining to this number show that the

phone was active since 6.11.2001. The High Court refuted this criticism by

observing thus:

"\005The conclusion to which the defence has jumped is, in our

opinion, based on an assumption that when PW49 said that he sold

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a SIM card to Mohd. Afzal on 4.12.2001, this was the SIM card. In

his testimony, PW49 did not say that he sold this SIM to Mohd.

Afzal on 4.12.2001, he only said that he sold one SIM card

(without identifying it) to Mohd. Afzal on 4.12.2001. It could be

any card. The witness may have sold the particular card to Mohd.

Afzal or any other person on 6.12.2001. The witness does not

stand discredited.

In the very next sentence, the High Court however observed that in the

absence of independent corroboration of the testimony of PW49, his evidence

ought not to be taken into account. Here also, just as in the case of PW44, the

High Court fell into error in discarding the evidence on an untenable ground. It

is to be noted that the handset (Ext.P84) which was used for operating

9811489429 on the date of incident, was recovered from Afzal at Srinagar. The

call records\027Ext. PW36/3 would reveal that the said number was activated on

6.11.2001 itself and that even prior to 4th December, the SIM card was held by

the same person or persons who operated it after 4.12.2001. The SIM card

should have been necessarily sold to Afzal prior to 4.12.2001.

It is contended that the test identification should have been conducted to

assure credibility to the evidence of identification of Afzal by the shopkeepers.

It is also contended that the photograph of the deceased Mohammed should

have been mixed up with the other photographs in order to impart credibility to

the version of witnesses who claimed to have seen him. We find no substance

in these contentions.

It is well settled that conducting the Test Identification Parade relates to

the stage of investigation and the omission to conduct the same will not always

affect the credibility of the witness who identifies the accused in the Court. In

Malkhansingh & Ors. Vs. State of M.P. [(2003) 5 SCC 746] B.P. Singh, J.

speaking for a three Judge Bench observed thus:

"It is well settled that the substantive evidence is the evidence of

identification in Court and the test identification parade provides

corroboration to the identification of the witness in Court, if

required. However, what weight must be attached to the evidence

of identification in Court, which is not preceded by a test

identification parade, is a matter for the Courts of fact to examine.

In the instant case, the Courts below have concurrently found the

evidence of the prosecutrix to be reliable\005"

The earlier observation at paragraph 10 is also important:

"It is no doubt true that much evidentiary value cannot be

attached to the identification of the accused in court where

identifying witness is a total stranger who had just a fleeting

glimpse of the person identified or who had no particular reason to

remember the person concerned, if the identification is made for

the first time in Court."

In the present case, the accused persons themselves led the witnesses

to the concerned shops and the places and pointed out the witnesses.

Therefore, the question of holding TIP thereafter does not arise. The evidence

of the prosecution witnesses who could identify the two accused persons can

be safely relied upon for more than one reason. Firstly, the time lag between

the date of first and next meeting was not much, it was just a few days or at

the most two weeks. Secondly, there was scope for sufficient interaction so

that the identity of the accused could be retained in their memory. It was not

a case of mere 'fleeting glimpse'. For the same reasons, they could identify

Mohammed by photograph which was quite clear, though. If the step was

taken by the I.O. to have the test identification of photographs of dead bodies,

it would have given better assurance of the reliability of identification.

However, the failure to do so cannot be a ground to eschew the testimony of

the witnesses whose evidence was concurrently accepted by the trial and the

appellate Court. It is not the case of the appellant or any of the accused that

the identification by photographs is not permissible under law.

(ix) Laptop

The recovery of 'laptop' from the truck in which Afzal and Shaukat

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travelled on being pointed out by them is a highly incriminating circumstance

against them. It is established from the evidence that the said laptop was used

for the preparation of I.Cards and the I.Cards found at the spot on the dead

bodies and the MHA sticker found on the car were those produced from the

same laptop. It admits of no doubt that the laptop, which must have been with

the deceased terrorist Mohammed and others came into the custody of Afzal

(and Shaukat) soon after the incident on 13th December and such possession

has not been accounted for.

Now let us delve into further details, excluding from consideration the

confessional statements, according to which the laptop was given to Afzal and

Shaukat by Mohammed to be handed over to Ghazibaba.

PW61\027Dy. S.P., Srinagar speaks to the recovery of the laptop in a

briefcase with attachments from the truck pursuant to the disclosure made by

Afzal and Shaukat when the truck was intercepted at Srinagar. Ext.PW61/4 is

the seizure memo. PW62\027the Head Constable, corroborates what PW61

stated. PWs 64 & 65, who are the Sub-Inspectors of Special Cell, speak to the

fact that the laptop along with the accessories was handed over to them as the

property recovered by PW61. The laptop is Ext.P83. The laptop and other

articles seized at Srinagar were deposited in the malkhana of the police station

in sealed condition as per PW66. Then it was the job of PW80\027ACP, who took

over investigation on 19th December, to have the laptop examined by experts.

The experts, namely, PW72\027a computer engineer and PW73\027Assistant

Government Examiner of Questioned Documents, Bureau of Police Research,

Hyderabad submitted their reports which are Exts.PW72/1 and PW73/1. PW79,

who was associated with PW73, was also examined by the prosecution. The

laptop contained files relating to identity cards recovered from the deceased

terrorists wherein the address was mentioned as Christian Colony or Gandhi

Vihar. PW72 testified that he took printouts from the laptop which are

Exts.PW59/1 to PW59/7 and PW72/2 to PW72/13 and these documents were

compared to the original identity cards and the MHA sticker (Ext.PW1/8). The

forensic expert\027PW59 submitted a report according to which the laptop

(PW83) was in fact used for the creation of I.Cards and the MHA sticker found

at the spot. The analysis and conclusions reached by PWs73 & 79 match with

those of PW72. Thus, two different sets of experts have come to the same

conclusion about the contents of the laptop. PW72 gave a detailed account of

various softwares that were found installed in the laptop and he gave a

chronological account. It was found that from November 2001 onwards, certain

files were copied on to the system. The system was used for crating, editing

and viewing .tmp files (most of which are identity cards) and viewing files

stored in geo microchip. Editing of various identity cards took place close to the

date of occurrence. Some records were edited as late as 12th December. The

summary of important documents found on the laptop contains identity cards

which were similar to those recovered from the deceased terrorists, ASF video

files containing clippings of political leaders with Parliament in background shot

from TV news channels and another file containing scanned images of front

and rear view of I. Card and a .tmp file containing design of MHA sticker. The

report also reveals that the game 'wolf pack' (sun) had registration details on

the laptop which showed the user name as 'Ashiq'\027a name which was found in

one of the identity cards shown to PW20 at the time of purchase of the car and

to the landlord of the Christian Colony Hostel. The documents found in the

laptop were the identity cards in the name of Ashiq Hussain Khan similar to

Ext.4/3, the front side scanned image of Cybertech Computer Hardware

Solution identity card in the name of Ashiq Hussain Khan\027Similar to the one

found at the spot of occurrence, the identity cards of Xansa Websity of Riyad

Ahmad which contains the address of Gandhi Vihar and the phone number of

Afzal, the identity card of Cybertech Computer Education of Ashif Mustafa, two

identity cards of Xansa Websity of Neeraj Bakshi and Anil Kumar which were

similar to the identity cards found at the spot, two identity cards of Xansa

Websity with the name Sunil Verma and Raju Lal which were similar to the

cards found at the spot, designed sticker of Ministry of Home Affairs found and

the relative file containing the same text as was found on the sticker.

All these documents were found created and last updated between 1st

December and 12th December, one of them was on 21st November, 2001. The

documents referred to above establish that various identity cards which were

similar to those recovered at the scene of offence were found in the laptop.

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The I. Cards that were not used were also detected. Documents found at the

spot ('Q' series) were sent for forensic examination in order to report the

results of comparison of these documents with those found inside the laptop.

Besides, the sample originals of the MHA sticker and the sample identity cards

of Xansa Websity ('S' series) were sent for comparison and report. The analysis

was done by PW59\027Senior Scientific Officer, CFSL. He reported that the MHA

sticker image and the images of identity cards found in the laptop match with

those found at the spot in general size, design and arrangement of characters.

As regards 'S' series (genuine sample documents), the finding was that they

differed with the identity cards etc., found at the spot. It may be stated that

the franchisees of Xansa Websity were examined as PWs 25 and 50 and they

produced the genuine samples and also testified to the fake names and

addresses printed on the identity cards. We agree with the High Court that the

testimony of PWs 59, 72, 73 & 79 establish beyond doubt that fake documents

were created from the laptop which was evidently in the possession of the

deceased terrorists and eventually recovered from Afzal/Shaukat in Srinagar.

We find that the evidence of these witnesses could not in any way be shattered

in the cross examination. There was no cross examination of the witness\027

PW59 by Afzal. The limited cross examination on behalf of Shaukat did not

yield anything favourable to the accused. As regards PW72, most of the cross

examination was in the nature of hypothetical questions. Though there was no

suggestion of any tampering to this witness, the witness stated that there was

no evidence of replacement of the hard disk upon a perusal of the reg file.

There was no suggestion to PW72 that the documents (printouts) taken from

the laptop were not the real ones. Two different experts recorded same

conclusions without knowing the report of each other.

One point of criticism levelled by the defence counsel is that in spite of

the fact that the laptop was deposited in the malkhana on 16.1.2002, (after it

was received back from PW72), the analysis by PW73 revealed that two of the

files were last written on 21.1.2001 and one file was last accessed and last

written on the same day. In this connection, it is to be noted that according to

the case diary, the laptop was accessed by the independent agencies at the

malkhana on 21.1.2002. It is clarified by the learned counsel for the State and

as found by the High Court, the said files being self-generating and self-

written, they reflected the date of writing as 21.1.2002, as the laptop would

have been switched on by the investigating agencies on that date. While cross

examining PW73, a question was put as to how a file could be written without

it being accessed. The witness answered that the file cannot be written without

being accessed by copying it on a different storage media. The learned counsel

for the State is justified in his comment that the said answer was not a

response pertaining to system files, which are self-generating and self-written.

There was no suggestion to any witness that the date or time setting has been

modified in the instant case so as to facilitate tampering. A mountain out of

mole hill is sought to be made out by reason of the observation of PW73 that

some of the files were last written after the date of seizure and the answer

given by PW73 with reference to a general, hypothetical question.

The testimony of DW8\027computer engineer, who was examined on behalf

of the accused Gilani, does not in any way substantiate the point of criticism

about the possible tampering of laptop or nor does it make a dent on the

findings of the experts examined by the prosecution. The testimony of this

witness was not with reference to any of the files on which certain doubts were

raised. His testimony is, by and large, on hypothetical aspects and does not

relate to the authenticity of the contents of laptop as reported by the other

experts.

In the light of foregoing discussion, we hold that the laptop found in the

custody of the appellants and the results of analysis thereof would amply

demonstrate that the laptop was the one used by the deceased terrorists

contemporaneous to the date of incident and it should have passed hands on

the day of the incident or the previous day. The accused carrying the same

with him soon after the incident furnishes cogent evidence pointing towards

his involvement.

The circumstances detailed above clearly establish that the appellant

Afzal was associated with the deceased terrorists in almost every act done by

them in order to achieve the objective of attacking the Parliament House. He

established close contacts with the deceased terrorists, more especially,

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Mohammed. Short of participating in the actual attack, he did everything to set

in motion the diabolic mission. As is the case with most of the conspiracies,

there is and could be no direct evidence of the agreement amounting to

criminal conspiracy. However, the circumstances cumulatively considered and

weighed, would unerringly point to the collaboration of the accused Afzal with

the slain 'Fidayeen' terrorists. The circumstances, if considered together, as it

ought to be, establish beyond reasonable doubt that Afzal was a party to the

conspiracy and had played an active part in various acts done in furtherance of

the conspiracy. These circumstances cannot be viewed in isolation and by no

standards of common sense, be regarded as innocuous acts. His conduct and

actions\027antecedent, contemporaneous and subsequent\027all point to his guilt

and are only consistent with his involvement in the conspiracy. Viewed from

another angle, the Court can draw a presumption under Section 114 of

Evidence Act having regard to the natural course of events and human conduct

that the appellant Afzal had nexus with the conspirators who were killed and

all of them together hatched the conspiracy to attack the Parliament House

and in that process to use explosives and other dangerous means. We are,

therefore, of the view that there is sufficient and satisfactory circumstantial

evidence to establish that Afzal was a partner in this conspired crime of

enormous gravity.

(x) Punishment:

Identification of the appropriate provisions of POTA and IPC under which

the accused Afzal becomes liable for punishment is the next important task

before the Court.

In dealing with this aspect, the first question that arises for consideration

is whether the appellant Afzal can be convicted under Section 120B of IPC read

with Section 3(1) of POTA and be punished under Section 3(2) for the offence

of criminal conspiracy to commit a 'terrorist act' or whether he is liable to be

punished only under sub-Section(3) of Section 3 of POTA.

Mr. Sushil Kumar, learned senior counsel appearing for the appellant

Afzal has contended, quite contrary to the stand taken by the other two senior

counsel, that no offence under POTA is made out in the instant case and

therefore POTA offences were not included in the beginning. He submits that

the actions of the deceased terrorists and the alleged conspirators can all be

brought within the scope of Section 121 and 121A of IPC. As the unauthorized

interception of communications and inadmissible joint disclosures were found

to be insufficient to make out the offence under Section 121, the police

thought of adding POTA after 19th December, so that the confession to the

police officer could be made the basis of conviction. We find it difficult to

appreciate this argument. The propriety by or otherwise of the action of the

investigating agency in adding POTA at a later stage is one thing; whether the

offence under POTA is made out, in addition to the offences under IPC, is a

distinct point, one shall not be mixed up with the other. As far as the non-

applicability of Section 3 of POTA is concerned, the learned senior counsel

appearing for Afzal has not given any particular reason as to why the acts

done by the deceased persons did not amount to terrorist acts within the

meaning of Section 3(1) of POTA. Whether the appellant has committed the

terrorist act himself or not is a different matter but to say that POTA as a

whole does not govern the situation is to take an extreme stand unsupported

by reasoning.

We shall now consider the contentions of Mr. Shanti Bhushan and Mr.

Ram Jethmalani that the conspiracy to commit a terrorist act is punishable

only under sub-Section (3) of Section 3 of POTA and Section 120B IPC will

have no application in relation to a terrorist act as defined by Section 3(1) of

POTA. Though this contention raised by the learned counsel does not really

arise for determination in the cases of the accused whom they represent in

view of the conclusions reached by us as regards their culpability, we feel that

the correctness of this contention has to be tested in so far as Afzal is

concerned.

The stand taken by Mr. Gopal Subramanium is that on the commission of

overt criminal acts by the terrorists pursuant to the conspiracy hatched by

them and the accused, even the conspirators will be liable under Section

3(1)/3(2) of POTA. It is his contention that where overt acts take place or the

object of the conspiracy is achieved, then all the conspirators are liable for the

acts of each other and with the aid of Section 120B read with Section 3(2), all

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the conspirators are punishable under Section 3(2). The liability of mere

conspirators is coequal to the liability of the active conspirators according to

him. Alternatively, it is contended that on account of the perpetration of

criminal acts by the deceased terrorists pursuant to conspiracy, the appellant

is liable to be punished under Section 120B of IPC read with Section 3(1) of

POTA and the punishment applicable is the one prescribed under sub-Section

(2) of Section 3 of POTA. According to the learned counsel, sub-Section (3) of

Section 3 does not come into play in the instant case because of the overt acts

that have taken place in execution of the conspiratorial design.

As far as the first contention of Mr. Gopal Subramanium is concerned,

we have already rejected his argument that on the principle of 'theory of

agency', the conspirators will be liable for the substantive offences committed

pursuant to the conspiracy. When once the application of the theory of agency

is negatived, there is no scope to hold that the appellant, in spite of not having

done any act or thing by using the weapons and substances set out in sub-

Section(1)(a), he, as a conspirator, can be brought within the sweep and

ambit of sub-Sections (1) & (2). The wording of clause (a) of Section 3(1) is

clear that it applies to those who do any acts or things by using explosive

substances etc., with the intention referred to in clause (a), but not to the

conspirators who remained in the background.

We must now deal with the alternative contention of Mr. Gopal

Subramanium that Section 120B of IPC can be combined with Sections 3(1)

and 3(2) of POTA.

The contention of Mr. Shanti Bhushan and Mr. Ram Jethmalani is straight

and simple. POTA is a special law dealing with terrorist activities and providing

for punishment therefor. Conspiring to commit a terrorist act, among other

things, is specifically brought within the fold of sub-Section (3) and is clearly

covered by that sub-Section. Therefore, the learned counsel submit that the

punishment as prescribed by sub-Section (3) alone could be applied even if

the appellant is held guilty of the offence of conspiring to do a terrorist act

with others. The question whether the conspiracy resulted in the commission

of offences in order to achieve the objective of the conspirators is immaterial

according to the concerned counsel. As a corollary to this argument, it is

contended that Section 120B IPC, which is contained in the general law of

crimes, cannot be brought into the picture so as to attract higher punishment

especially in view of Section 56 of POTA, which gives overriding effect to the

provisions of POTA. The learned counsel therefore submits that the maximum

punishment that can be imposed is life imprisonment as per Section 3(3) of

POTA.

The relevant part of Section 120B reads as follows:

"120B. Punishment of criminal conspiracy.\027(1) Whoever is a

party to a criminal conspiracy to commit an offence punishable

with death, (imprisonment for life) or rigorous imprisonment for a

term of two years or upwards, shall, where no express provision is

made in this Code for the punishment of such a conspiracy, be

punished in the same manner as if he had abetted such offence.

Thus a party to criminal conspiracy shall be punished in the same manner as if

he had abetted the relevant offence i.e. an offence punishable with death,

imprisonment for life etc. Mr. Gopal Subramanium then referred to the

definition of 'offence' in Section 40 of IPC which in the context of Chapter VA

(of which Sections 120A & 120B form part) denotes a thing punishable under

the Code or under any special or local law. A special law is defined to mean a

law applicable to a particular subject. POTA is one such law. Then he had

taken us through Section 2(1)(i) of POTA. Sections 2(n) and 2(y) of Cr.P.C.

that submit that Section 120B embraces within its fold the offences under any

special law and that Section 120B can be related to the offence under Section

3(1) of POTA. According to the learned counsel, Section 120B should be

applied wholly or in part pursuant to the conspiracy, if the criminal acts in the

nature of terrorist acts take place. According to the learned counsel, the

conspiracy contemplated by Section 3(3) of POTA should be confined only to

situations where no overt acts in the direction of commission of planned

offence takes place.

The final question is about the sentence\027whether the capital

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punishment awarded by the trial Court and the High Court is justified? The

endeavor of the learned counsel for the State to invoke the punishment under

Section 3(2) of POTA through the media of Section 120B is in our opinion a

futile exercise. The argument of the learned counsel proceeds on the basis that

the punishment provided in the abetment provisions of IPC, that is to say,

Section 109, will be attracted. This argument is built up on the basis of the

phraseology of the concluding clause of Section 120B which says\027"be

punished in the same manner as if he had abetted such offence". Let us take it

that the word 'offence' in Section 120B includes the offence under special law,

namely POTA. Then, if the offence under Section 3(1) of the POTA is abetted,

what is the punishment that is attracted is the point to be considered.

Undoubtedly, it is Section 3(3) of POTA which says: "whoever 'conspires'\005or\005

'abets' a terrorist act shall be punishable with imprisonment which shall not be

less than five years but which may extend to imprisonment for life". Taking

resort to the abetment provisions in the IPC in order to locate the punishment

for conspiracy to commit terrorist act would be wholly inappropriate when the

abetment of the terrorist act is made punishable under Section 3(3) of POTA

itself which prescribes the minimum and maximum punishment. In other

words, invocation of Section 109 IPC is wholly unwarranted when POTA itself

prescribes the punishment for conspiracy as well as abetment in a single sub-

section. Therefore, even if Section 120B is applied, it does not make any

different as regards the quantum of punishment. In either case i.e. whether

Section 120B IPC is applied or Section 3(3) of POTA is applied, the maximum

sentence is life imprisonment but not death sentence. This is apart from the

question whether Section 120B IPC can at all be projected into Section 3 of

POTA when there is specific provision in the very same Section for the offence

of conspiring to commit a terrorist act and other allied offences. The

contention that it would not have been the intention of the Parliament to visit

conspiracies involving terrorist acts with less severe punishment than what

could be inflicted under Section 120B does not appeal to us. The other

argument addressed that having regard to the setting and associated words

such as 'advices', 'advocates' etc., the conspiracies of lesser magnitude, that is

to say, those which were not put into action will only be covered by sub-

Section (3), does not also appeal to us. There is no set pattern in which the

various expressions are used in sub-Section (3) of Section 3. More serious acts

as well as less serious acts involving various degrees of criminality related to

terrorist acts are all encompassed in Section 3(3). They need not be uniformity

in the matter of punishment in respect of all these prohibited acts. The range

of punishment varies from five years to life imprisonment and depending upon

the gravity of the offence, appropriate punishment could be given.

We are also not impressed by the finding of the High Court that "by

reason of the words 'or thing' occurring in Section 3(1) (as a part of the clause

'does any act or thing' by using bombs, dynamite or other explosive

substances or firearms etc"), the definition of a terrorist act need not be

restricted to a physical act of using explosives etc. The High Court observed

that the actions of Afzal in procuring explosives and chemicals and

"participating in the preparation of explosives would be action amounting to

doing of a thing using explosives", cannot be supported on any principle of

interpretation. Moreover, it rests on a finding that the accused Afzal and

Shaukat participated in the preparation of explosives for which there is no

evidentiary support. Even their confession (which is now eschewed from

consideration) does not say that.

The net result of the above discussion is that the conspiracy to commit

terrorist acts attracts punishment under sub-Section (3) of Section 3. The

accused Afzal who is found to be a party to the conspiracy is therefore liable to

be punished under that provision. Having regard to the nature, potential and

magnitude of the conspiracy with all the attendant consequences and the

disastrous events that followed, the maximum sentence of life imprisonment is

the appropriate punishment to be given to Mohd. Afzal under Section 3(3) of

POTA for conspiring to commit the terrorist act. Accordingly, we convict and

sentence him.

The conviction under Section 3(2) of POTA is set aside. The conviction

under Section 3(5) of POTA is also set aside because there is no evidence that

he is a member of a terrorist gang or a terrorist organization, once the

confessional statement is excluded. Incidentally, we may mention that even

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going by confessional statement, it is doubtful whether the membership of a

terrorist gang or organization is established.

We shall then consider whether the conviction of Afzal under Section

120B read with Section 302 IPC is justified. The High Court upheld the

conviction and gave death sentence to the two appellants under this Section.

We are of the view that the conviction and sentence on this count is in

accordance with law. The conspiracy has many dimensions here. It is implicit

in the conspiracy to attack the Parliament that it extends to all the offensive

acts intimately associated with that illegal objective. Indulgence in terrorist

acts, killing and injuring persons who are most likely to resist the attackers,

using explosive devices, firearms and other dangerous things in the course of

attack, 'waging war' against the Government of the country are all various

manifestations of the conspiracy hatched by the deceased terrorists in

combination with the appellant Afzal. The mere fact that no particular person

is the target of attack of the conspirators, does not make any difference in

regard to the applicability of Section 300 IPC. The intention to cause death or

the intention of causing bodily injury as would in all probability cause death is

writ large in the conspiracy directed towards the indiscriminate attack on the

Parliament of the nation when it is in session. The opening clause of Section

300 says that "except in the cases hereinafter excepted, culpable homicide is

murder, if the act by which the death is caused is done with the intention of

causing death". Clause fourthly says: "if the person committing the act knows

that it is so imminently dangerous that it must, in all probability, cause death

or such bodily injury as is likely to cause death, and commits such act without

any excuse for incurring the risk of causing death or such injury as aforesaid"

(vide clause fourthly). These clauses squarely apply to the case on hand.

Illustration (d) to Section 300 is instructive. It reads thus:

(d) A without any excuse fires a loaded cannon into a

crowd of persons and kills one of them. A is guilty of

murder, although he may not have had a

premeditated design to kill any particular individual.

The conspiracy to commit the offence of murder in the course of execution of

conspiracy is well within the scope of conspiracy to which the accused Afzal

was a party. Therefore, he is liable to be punished under Section 120B read

with Section 302 IPC. The punishment applicable is the one prescribed under

Section 109 IPC in view of the phraseology of Section 120B\027"be punished in

the same manner as if he had abetted such offence". Section 109 IPC lays

down that "if the act abetted is committed in consequence of the abetment,

and no express provision is made by this Code for the punishment of such

abetment, a person abetting the offence shall be punished with the

punishment provided for the offence." Thus the conspirator, even though he

may not have indulged in the actual criminal operations to execute the

conspiracy, becomes liable for the punishment prescribed under Section 302

IPC. Either death sentence or imprisonment for life is the punishment

prescribed under Section 302 IPC.

In the instant case, there can be no doubt that the most appropriate

punishment is death sentence. That is what has been awarded by the trial

Court and the High Court. The present case, which has no parallel in the

history of Indian Republic, presents us in crystal clear terms, a spectacle of

rarest of rare cases. The very idea of attacking and overpowering a sovereign

democratic institution by using powerful arms and explosives and imperiling

the safety of a multitude of peoples' representatives, constitutional

functionaries and officials of Government of India and engaging into a combat

with security forces is a terrorist act of gravest severity. It is a classic example

of rarest of rare cases.

The gravity of the crime conceived by the conspirators with the potential

of causing enormous casualties and dislocating the functioning of the

Government as well as disrupting normal life of the people of India is some

thing which cannot be described in words. The incident, which resulted in

heavy casualties, had shaken the entire nation and the collective conscience of

the society will only be satisfied if the capital punishment is awarded to the

offender. The challenge to the unity, integrity and sovereignty of India by

these acts of terrorists and conspirators, can only be compensated by giving

the maximum punishment to the person who is proved to be the conspirator in

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this treacherous act. The appellant, who is a surrendered militant and who was

bent upon repeating the acts of treason against the nation, is a menace to the

society and his life should become extinct. Accordingly, we uphold the death

sentence.

Before we go to the next provision under which the appellant is liable to

be convicted, we shall deal with the contention of Mr. Shanti Bhushan,

appearing for the appellant Shaukat, which becomes relevant in the case of

Afzal. His arguments run as follows:

The acts committed by the deceased terrorists causing death of several

security personnel by using firearms and explosives in order to gain entry into

the Parliament House fall within the definition of 'terrorist act' punishable

under Section 3(2) of POTA. If POTA had not been there, the offence

committed by them would have been the offence of murder punishable under

Section 120B read with Section 302 IPC. In view of the overriding provision

contained in Section 56 of POTA, the conspiracy to commit terrorist act is

punishable only under Section 3(3) of POTA. Merely because the same criminal

acts also fall within the definition of murder, the accused cannot be convicted

of conspiracy to commit murder under Section 120B read with Section 302 IPC

in addition to Section 3(3) of POTA. The accused cannot be punished for the

offence of conspiracy to cause death when he is liable to be punished for the

same act of causing death under the General Penal Law. It is only the

punishment provided by the appropriate provision in the special law that can

be imposed on the conspirator. That provision being Section 3(3) and it

provides for the maximum sentence of life imprisonment, death sentence

cannot be given.

The learned counsel, apart from placing reliance on Section 56 of POTA,

has also drawn our attention to Section 26 of General Clauses Act and Section

71 of IPC. His contention, though plausible it is, has no legal basis. We do not

think that there is anything in Section 56 of POTA which supports his

contention. That provision only ensures that the conspiracy to commit the

terrorist act shall be punishable under POTA. As the appellant is being

punished under that Section, irrespective of the liability to be punished under

the other laws, Section 56 ceases to play its role. Then, we shall turn to

Section 26 of the General Clauses Act, which lays down:

Where an act or omission constitutes an offence under two or

more enactments, then the offender shall be liable to be

prosecuted and punished under either or any of those enactments,

but shall not be liable to be punished twice for the same offence.

It becomes at once clear that the emphasis is on the words 'same offence'. It

is now well settled that where there are two distinct offences made up of

different ingredients, the bar under Section 26 of the General Clauses Act or

for that matter, the embargo under Article 20 of the Constitution, has no

application, though the offences may have some overlapping features. The

crucial requirement of either Article 20 of the Constitution or Section 26 of the

General Clauses Act is that the offences are the same or identical in all

respects. It was clarified in State of Bihar Vs. Murad Ali Khan [(1988) 4

SCC 655].

"Though Section 26 in its opening words refers to 'the act or

omission constituting an offence under two or more enactments',

the emphasis is not on the facts alleged in the two complaints but

rather on the ingredients which constitute the two offences with

which a person is charged. This is made clear by the concluding

portion of the section which refers to 'shall not be liable to be

punished twice for the same offence'. If the offences are not the

same but are distinct, the ban imposed by this provision also

cannot be invoked\005 The same set of facts, in conceivable cases,

can constitute offences under two different laws. An act or an

omission can amount to and constitute an offence under the IPC

and at the same time constitute an offence under any other law.

The same set of facts, in conceivable cases, can constitute

offences under two different laws. An act or an omission can

amount to and constitute an offence under the IPC and at the

same time constitute an offence under any other law."

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We accept the argument of the learned counsel for the State Mr. Gopal

Subramanium that offences under Section 302 IPC, Section 3(2) and Section

3(3) of POTA are all distinct offences and a person can be charged, tried,

convicted and punished for each of them severally. The analysis of these

provisions show that the ingredients of these offences are substantially

different and that an offence falling within the ambit of Section 3(1) may not

be squarely covered by the offence under Section 300 IPC. The same set of

facts may constitute different offences. The case of State of M.P. Vs.

Veereshwar Rao Agnihotri [1957 SCR 868] is illustrative of this principle.

In that case, it was held that the offence of criminal misconduct punishable

under Section 5(2) of the Prevention of Corruption Act is not identical in

essence, import and content with an offence under Section 409 IPC. The bar to

the punishment of the offender twice over for the same offence would arise

only where the ingredients of both the offences are the same.

Section 71 of IPC does not in any way advance the contention of the

appellant's counsel. The relevant part of Section 71 IPC reads:

Where anything is an offence falling within two or more separate

definitions of any law in force for the time being by which offences

are defined or punished,

\005 \005 \005 \005

the offender shall not be punished with a more severe punishment

than the court which tries him could award for any one of such

offences.

The argument based on Section 71 IPC is no different from the argument

advanced with reference to Section 26 of the General Clauses Act. For the

same reasons, we reject this argument. The case of Zaverbhai Vs. State of

Bombay [AIR 1954 SC 752] does not lay down any different principle. In

fact that case is concerned with question of repugnancy of the State and

Central laws.

The next question we have to answer is whether the conviction of the

appellant Mohd. Afzal under Sections 121 and 121A can be sustained. This

raises the question whether the acts of the deceased terrorists amount to

waging or abetting or attempting to wage war punishable under Section 121

IPC and Mohd. Afzal, being a party to conspiracy to attack the Parliament

House, is punishable either under Section 121 or under Section 121A or both.

To answer this question, we have to explore the concept and nuances of the

expression 'waging war' employed in Section 121.

(xi) Waging War

In interpreting the expression 'waging war', the Indian cases of pre-

independence days, though few they are, by and large cited with approval the

18th and 19th century English authorities. The term 'wages war' was

considered to be a substitute for 'levying war' in the English Statute of High

Treason of 1351 i.e Statute 25, Edward III, c.2. In the famous book of Sir

James F. Stephen \026 "A History of the Criminal Law of England" (1883

publication), it was noted that the principal heads of treason as ascertained

by that Statute were: (1) 'imagining'? the King's death" (2) levying war and

(3) adhering to the King's enemies.

The speech of Lord Mansfield, CJ addressed to the Jury in Lord George

Gordon's case (1781) is often quoted to unfold the meaning of the expression

'levying war against the King'. To quote the words of Mansfield, C.J.:

"There are two kinds of levying war: one against the person of the

King: to imprison, to dethrone, or to kill him; or to make him

change measures, or remove counsellors : the other, which is said

to be levied against the majesty of the King or, in other words,

against him in his regal capacity; as when a multitude rise and

assemble to attain by force and violence any object of a general

public nature; that is levying war against the majesty of the

King; and most reasonably so held, because it tends to dissolve

all the bonds of society, to destroy property, and to overturn

Government ; and by force of arms, to restrain the King from

reigning, according to law".

"No amount of violence, however great, and with whatever

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circumstances of a warlike kind it may be attended, will make an

attack by one subject on another high treason. On the other

hand, any amount of violence, however insignificant, directed

against the King will be high treason, and as soon as violence

has any political objects, it is impossible to say that it is not

directed against the king, in the sense of being armed opposition

to the lawful exercise of his power".

The learned Chief Justice then referred to the observations of Lord

Holt, C. J. in a case reported in Holt's reports (1688-1700) at 681-682:

"Holt L. C.J. in Sir John Friend's case says, 'if persons do assemble

themselves and act with force in opposition to some law which

they think inconvenient, and hope thereby to get it repealed, this

is a levying war and treason". "I tell you the joint opinion of us

all, that, if this multitude assembled with intent, by acts or force

and violence, to compel the legislature to repeal a law, it is high

treason"\005\005..The question always is, whether the intent is, by

force and violence, to attain an object of a general and public

nature, by any instruments; or by dint of their numbers".

In 1820 Lord President Hope in his summing up speech to the jury

in Rex Vs. Andrew Hardie, (1820, 1 State Trials N.S., 610) explained the

distinction between levying a war and committing a riot in the following words:

"Gentlemen, it may be useful to say a few words on the

distinction between levying war against the King and committing a

riot. The distinction seems to consist in this, although they may

often run very nearly into each other. Where the rising or tumult

is merely to accomplish some private purpose, interesting only to

those engaged in it, and not resisting or calling in question the

King's authority or prerogative then the tumult, however

numerous or outrageous the mob may be, is held only to be a riot.

For example, suppose a mob to rise, and even by force of arms to

break into a particular prison and rescue certain persons therein

confined, or to oblige the Magistrates to set them at liberty or

to lower the price of provisions in a certain market, or to tear

down certain enclosures, which they conceive to encroach on the

town's commons. All such acts, though severely punishable,

and though they may be resisted by force, do not amount to

treason. Nothing is pointed against either the person or authority

of the King".

"But, gentlemen, wherever the rising or insurrection has for its

object a general purpose, not confined to the peculiar views and

interests of the persons concerned in it, but common to the whole

community, and striking directly the King's authority or that of

Parliament, then it assumes the character of treason. For

example, if mobs were to rise in different parts of the country to

throw open all enclosures and to resist the execution of the law

regarding enclosures wheresoever attempted, to pull down all

prisons or Courts of justice, to resist all revenue officers in the

collecting of all or any of the taxes; in short, all risings to

accomplish a general purpose, or to hinder a general measure,

which by law can only be authorized or prohibited by authority of

the King or Parliament, amount to levying of war against the King

and have always been tried and punished as treason. It is,

therefore, not the numbers concerned, nor the force employed

by the people rising in arms, but the object which they have in

view that determines the character of the crime, and will make it

either riot or treason, according as that object is of a public and

general, or private and local nature".

Then in 1839, Tindal, C. J. while summing up the Jury in the trial of John

Frost in the year 1839 [All ER Reprint 1835-1842 P.106 at P.117] stated that

it was "essential to the making out of the charge of high treason by levying

war, there must be an insurrection, there must be force accompanying that

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insurrection; and it must be for the accomplishment of an object of a general

nature".

The following statement of law by Sir Michael Foster is instructive:

"There is a difference between those insurrections which have

carried the appearance of an army formed under leaders, and

provided with military weapons, and with drums, colours etc., and

those other disorderly tumultous assemblies which have been

drawn together and conducted to purposes manifestly unlawful,

but without any of the ordinary shew and apparatus of war before

mentioned." "I do not think any great stress can be laid on that

distinction. It is true, that in case of levying war the indictments

generally charge, that the defendants were armed and arrayed in

a warlike manner; and, where the case would admit of it, the

other circumstances of swords, guns, drums, colours, etc., have

been added. But I think the merits of the case have never turned

singly on any of these circumstances".

We find copious reference to these English authorities in the Judgments

of various High Courts which we will be referring to a little later and in the

'Law of Crimes' authored by Ratanlal and Dhirajlal (25th Edition). In fact,

they were referred to in extenso by this Court in Nazir Khan Vs. State of

Delhi [(2003) 8 SCC page 461].

Whether this exposition of law on the subject of levying war continues to

be relevant in the present day and in the context of great socio-political

developments that have taken place is a moot point. Our comments may be

found a little later.

Coming to the Indian decisions, the earliest case in which the conviction

under section 121 and 121A IPC was sustained is the decision of a Division

Bench of Madras High Court in AIR 1922 Mad. 126. The accused was seen in a

crowd of people which attacked the police and military forces with deadly

weapons, when the forces under the supervision of the District Magistrate

started searching for war-knives. The mob retreated after the police opened

fire and the accused who was arrested told the mob to disperse. The accused

earlier exhorted the people who attended a meeting to subvert the British Raj

and establish the Khilafat Govt. and to destroy the Govt. properties. The High

Court agreeing with the District Judge found him guilty under section 121, IPC

while observing thus :

"We have then that the accused was taking part in an organized

armed attack on the constituted authorities, that attack having for

its object, in the words of his own speech, the subversion of

British Raj and the establishment of another Government. That

being so, we concur without hesitation in the lower Court's

conclusion that the accused was guilty of the offence of waging

war against the King."

The next case which is an oft-quoted authority is the decision of a

special Bench of Rangoon High Court in AIR 1931 Rang 235, Page CJ speaking

for the special Bench prefaced his discussion with the statement that the

words "waging war in Section 121 are synonymous with 'levying war' in the

Statute 25, Edward 3, clause 2 which offence is declared to be treason. After

referring to the observations of Mansfield, CJ, Lord President Hope, Tindal, CJ

and the commentaries of Sir Michael Foster, the High Court concluded thus :

"The natural and reasonable inference to be drawn from the conduct and acts

of insurgence was that they intended to overcome and destroy the forces of

the Crown at all events and regardless of any pretended grievance in

connection with capitation tax." The learned Judges referred to the incidents

that took place in the course of preparing for an encounter with the forces of

the Crown and observed that they were consistent only with an intention on

the part of the insurgents to wage war against the King Emperor. The raiding

of headmen's houses for guns and ammunition, the looting of stores, the

drilling of the rank and file, the supply of dahs and spears and uniforms to the

combatants, the enforced tattooing of certain reluctant villagers "all point to an

intention to wage war and nothing else".

It was then observed that :

"a deliberate and organized attack upon the Crown forces such as

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that which took place on 7th January clearly would amount to a

waging of war if the object of the insurgents was by armed force

and violence to overcome the servants of the Crown and thereby to

prevent the general collection of the capitation tax".

The incident was described as a battle which was the result of a rebellion.

Those who were parties to it were held guilty of waging war within Section 121

IPC.

In the case of Maganlal Radhakrishan [AIR 1946 Nagpur 173]

there was an elaborate discussion on the scope of Section 121 with reference

to the old English cases on the subject of 'levying-war' and high treason.

Certain decisions of Indian Courts e.g., AIR 1931 Rangoon 235 were also

referred to and the following principles were culled out :

(i) No specific number of persons is necessary to constitute

an offence under S.121, Penal Code.

(ii) The number concerned and the manner in which theyare

equipped or armed is not material.

(iii) The true criterion is quo animo did the gathering

assemble?

(iv) The object of the gathering must be to attain by forceand

violence an object of a general public nature, thereby

striking directly against the King's authority.

(v) There is no distinction between principal and accessory

and all who take part in the unlawful act incur the same

guilt."

The accused in that case was found to have connections with Hindustan

Red Army and to have designs for the elimination of the existing

Government. Arms and explosives were found concealed in his house. He

was found involved in the destruction of Police Station and shooting of a

police constable. The learned Judges felt that the raid on the Maudha Station

House was part of the design 'to attain by force and violence an object of a

general public nature"\027the test laid down by Mansfield, CJ. The Nagpur High

Court concluded that all this was a pre-determined plan for the overthrow of

Government at a time when it was involved in a world-wide conflict. The

conviction of Maganlal under section 121 was thus upheld.

The decision of a Division Bench of Patna High Court in AIR 1951

Patna 60 (Mir Hasan Khan vs. the State) is illustrative of what acts do

not constitute waging of war. That was a case in which there was a mutiny

among certain sections of the Police forces on account of the indignation

aroused by the punishment given to one of their colleagues. The conviction

under section 121, IPC was mainly based on the fact that the accused were

among those who took possession of the armory and also took part in the

resistance which was put up to the troops. The conviction was set aside and

the following pertinent observations were made by Shearer, J.

"The expression "waging war" means & can, I think, only mean

"waging war in the manner usual in war". In other words, in

order to support a conviction on such a charge, it is not enough

to show that the persons charged have contrived to obtain

possession of an armoury & have, when called upon to surrender

it, used the rifles & ammunition so obtained against the King's

troops. It must also be shown that the seizure of the armoury

was part & parcel of a planned operation & that their intention in

resisting the troops of the King was to overwhelm & defeat these

troops & then to go on & crush any further opposition with

which they might meet until either the leaders of the movement

succeeded in obtaining possession of the machinery of Govt. or

until those in possession of it yielded to the demands of their

leaders".

Support was drawn from the Digest of Criminal Law by Sir James

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Stephens. In the Digest, one of the meanings given to the expression to

levy-war is : "attacking in the manner usual in war the King himself or his

military forces, acting as such by his orders, in the execution of their duty."

It was concluded "it is, I think, quite impossible to say that any of these

appellants waged-war in the sense in which that expression, as it occurs in

Section 121, Penal Code, was used". "The appellants or some of them were

in possession of the armory at Gaya for several days and it is perfectly clear

that they never intended to use it as a base for further operations".

The next question is whether the dare devil and horrendous acts

perpetrated by the slain terrorists pursuant to the conspiracy, amount to

waging or attempting to wage war punishable under Section 121 IPC and

whether the conspirators are liable to be punished under Section 121 or 121A

or both.

Section 121 and 121A occur in the Chapter 'Offences against the State'.

The public peace is disturbed and the normal channels of Government are

disrupted by such offences which are aimed at subverting the authority of the

Government or paralyzing the constitutional machinery. The expression 'war'

preceded by the verb 'wages' admits of many shades of meaning and defies a

definition with exactitude though it appeared to be an unambiguous

phraseology to the Indian Law Commissioners who examined the draft Penal

Code in 1847. The Law Commissioners observed:

"We conceive the term 'wages war against the Government'

naturally to import a person arraying himself in defiance of the

Government in like manner and by like means as a foreign enemy

would do, and it seems to us, we presume it did to the authors of

the Code that any definition of the term so unambiguous would be

superfluous."

The expression 'Government of India' was substituted for the expression

'Queen' by the Adaptation of Laws Order of 1950. Section 121 now reads\027

"Whoever wages war against the Government of India or attempts to wage

such war, or abets the waging of such war, shall be punished with death or

imprisonment for life and shall also be liable to fine".

The conspiracy to commit offences punishable under Section 121

attracts punishment under Section 121A and the maximum sentence could be

imprisonment for life. The other limb of Section 121A is the conspiracy to

overawe by means of criminal force or the show of criminal force, the Central

Government or any State Government. The explanation to Section 121-A

clarifies that it is not necessary that any act or illegal omission should take

place pursuant to the conspiracy, in order to constitute the said offence.

War, terrorism and violent acts to overawe the established Government

have many things in common. It is not too easy to distinguish them, but one

thing is certain, the concept of war imbedded in Section 121 is not to be

understood in international law sense of inter-country war involving military

operations by and between two or more hostile countries. Section 121 is not

meant to punish prisoners of war of a belligerent nation. Apart from the

legislative history of the provision and the understanding of the expression by

various High Courts during the pre-independence days, the Illustration to

Section 121 itself makes it clear that 'war' contemplated by Section 121 is not

conventional warfare between two nations. Organizing or joining an

insurrection against the Government of India is also a form of war.

'Insurrection' as defined in dictionaries and as commonly understood connotes

a violent uprising by a group directed against the Government in power or the

civil authorities. "Rebellion, revolution and civil war are progressive stages in

the development of civil unrest the most rudimentary form of which is

'insurrection'\027vide Pan American World Air Inc. Vs. Actna Cas & Sur Co.

[505, F.R. 2d, 989 at P. 1017]. An act of insurgency is different from

belligerency. It needs to be clarified that insurrection is only illustrative of the

expression 'war' and it is seen from the old English authorities referred to

supra that it would cover situations analogous to insurrection if they tend to

undermine the authority of the Ruler or Government.

It has been aptly said by Sir J.F. Stephen "unlawful assemblies, riots,

insurrections, rebellions, levying of war are offences which run into each other

and not capable of being marked off by perfectly definite boundaries. All of

them have in common one feature, namely, that the normal tranquility of a

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civilized society is, in each of the cases mentioned, disturbed either by actual

force or at least by the show and threat of it".

To this list has to be added 'terrorist acts' which are so conspicuous now-

a-days. Though every terrorist act does not amount to waging war, certain

terrorist acts can also constitute the offence of waging war and there is no

dichotomy between the two. Terrorist acts can manifest themselves into acts

of war. According to the learned Senior Counsel for the State, terrorist acts

prompted by an intention to strike at the sovereign authority of the

State/Government, tantamount to waging war irrespective of the number

involved or the force employed.

It is seen that the first limb of Section 3(1) of POTA\027 "with intent to

threaten the unity, integrity, security or sovereignty of India or to strike terror

in the people or any section of the people does any act or thing by using

bombs, dynamite or other explosive or inflammable substances or firearms or

other lethal weapons or poisons or noxious gases or other chemicals or by any

other substances (whether biological or otherwise) of a hazardous nature or by

any other means whatsoever" and the act of waging war have overlapping

features. However, the degree of animus or intent and the magnitude of the

acts done or attempted to be done would assume some relevance in order to

consider whether the terrorist acts give rise to a state of war. Yet, the

demarcating line is by no means clear, much less transparent. It is often a

difference in degree. The distinction gets thinner if a comparison is made of

terrorist acts with the acts aimed at overawing the Government by means of

criminal force. Conspiracy to commit the latter offence is covered by Section,

121A.

It needs to be noticed that even in international law sphere, there is no

standard definition of war. Prof. L.Oppenheim in his well-known treatise on

International Law has given a definition marked by brevity and choice of

words. The learned author said: "war is a contention between two or more

States through their armed forces, for the purpose of overpowering each other

and imposing such conditions of peace as the victor pleases". Yoram

Dinstein\027an expert in international law field analyzed the said definition in the

following words:

"There are four major constituent elements in Oppenheim's view

of War: (i) there has to be a contention between at least two

States (ii) the use of the armed forces of those States is required,

(iii) the purpose must be overpowering the enemy ( as well as

the imposition of peace on the victor's terms); and it may be

implied, particularly from the words 'each other' and (iv) both

parties are expected to have symmetrical, although diametrically

opposed, goals."

The learned author commented that Oppenheim was entirely right in excluding

civil wars from his definition. Mr. Dinstein attempted the definition of 'war' in

the following terms:

"War is a hostile interaction between two or more States, either in

a technical or in a material sense. War in the technical sense is a

formal status produced by a declaration of war. War in the

material sense is generated by actual use of armed force, which

must be comprehensive on the part of at least one party to the

conflict."

In international law, we have the allied concepts of undeclared war,

limited war, war-like situation\027the nuances of which it is not necessary to

unravel.

There is no doubt that the offence of waging war was inserted in the

Indian Penal Code to accord with the concept of levying war in the English

Statutes of treason, the first of which dates back to 1351 A.D. It has been

said so in almost all the Indian High Courts' decisions of the pre-independence

days starting with AIR 1931 Rangoon 235. In Nazir Khan's case [2003 (8)

SCC 461] this Court said so in specific terms in paragraph 35 and extensively

quoted from the passages in old English cases. Sir Michael Foster's discourses

on treason and the passages from the decisions of the High courts referred to

therein are also found in Ratanlal's Law of Crimes. We should, therefore,

understand the expression "wages war" occurring in Section 121 broadly in the

same sense in which it was understood in England while dealing with the

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corresponding expression in the Treason Statute. However, we have to view

the expression with the eyes of the people of free India and we must modulate

and restrict the scope of observations too broadly made in the vintage

decisions so as to be in keeping with the democratic spirit and the

contemporary conditions associated with the working of our democracy. The

oft-repeated phrase 'to attain the object of general public nature' coined by

Mansfield, LCJ and reiterated in various English and Indian decisions should not

be unduly elongated in the present day context.

On the analysis of the various passages found in the cases and

commentaries referred to above, what are the high-lights we come across?

The most important is the intention or purpose behind the defiance or rising

against the Government. As said by Foster, "The true criterion is quo animo

did the parties assemble"? In other words the intention and purpose of the

war-like operations directed against the Governmental machinery is an

important criterion. If the object and purpose is to strike at the sovereign

authority of the Ruler or the Government to achieve a public and general

purpose in contra-distinction to a private and a particular purpose, that is an

important indicia of waging war. Of course, the purpose must be intended to

be achieved by use of force and arms and by defiance of Government troops or

armed personnel deployed to maintain public tranquility. Though the modus

operandi of preparing for the offensive against the Government may be quite

akin to the preparation in a regular war, it is often said that the number of

force, the manner in which they are arrayed, armed or equipped is immaterial.

Even a limited number of persons who carry powerful explosives and missiles

without regard to their own safety can cause more devastating damage than a

large group of persons armed with ordinary weapons or fire arms. Then, the

other settled proposition is that there need not be the pomp and pageantry

usually associated with war such as the offenders forming themselves in

battle-line and arraying in a war like manner. Even a stealthy operation to

overwhelm the armed or other personnel deployed by the Government and to

attain a commanding position by which terms could be dictated to the

Government might very well be an act of waging war.

While these are the acceptable criteria of waging war, we must dissociate

ourselves from the old English and Indian authorities to the extent that they

lay down a too general test of attainment of an object of general public nature

or a political object. We have already expressed reservations in adopting this

test in its literal sense and construing it in a manner out of tune with the

present day. The Court must be cautious in adopting an approach which has

the effect of bringing within the fold of Section 121 all acts of lawless and

violent acts resulting in destruction of public properties etc., and all acts of

violent resistance to the armed personnel to achieve certain political

objectives. The moment it is found that the object sought to be attained is of

general public nature or has a political hue, the offensive violent acts targeted

against armed forces and public officials should not be branded as acts of

waging war. The expression 'waging war' should not be stretched too far to

hold that all the acts of disrupting public order and peace irrespective of their

magnitude and repercussions could be reckoned as acts of waging war against

the Government. A balanced and realistic approach is called for in construing

the expression 'waging war' irrespective of how it was viewed in the long long

past. An organized movement attended with violence and attacks against the

public officials and armed forces while agitating for the repeal of an unpopular

law or for preventing burdensome taxes were viewed as acts of treason in the

form of levying war. We doubt whether such construction is in tune with the

modern day perspectives and standards. Another aspect on which a

clarification is called for is in regard to the observation made in the old

decisions that "neither the number engaged nor the force employed, nor the

species of weapons with which they may be armed" is really material to prove

the offence of levying/waging war. This was said by Lord President Hope in R

Vs. Hardie in 1820 and the same statement finds its echo in many other

English cases and in the case of Maganlal Radha Krishan Vs. Emperor [AIR

1946 Nagpur 173 at page 186]. But, in our view, these are not irrelevant

factors. They will certainly help the Court in forming an idea whether the

intention and design to wage war against the established Government exists or

the offence falls short of it. For instance, the fire power or the devastating

potential of the arms and explosives that may be carried by a group of

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persons\027may be large or small, as in the present case, and the scale of

violence that follows may at times become useful indicators of the nature and

dimension of the action resorted to. These, coupled with the other factors, may

give rise to an inference of waging war.

The single most important factor which impels us to think that this is a

case of waging or attempting to wage war against the Government of India is

the target of attack chosen by the slain terrorists and conspirators and the

immediate objective sought to be achieved thereby. The battle-front selected

was the Parliament House Complex. The target chosen was the Parliament\027a

symbol of sovereignty of the Indian republic. Comprised of peoples'

representatives, this supreme law-making body steers the destinies of vast

multitude of Indian people. It is a constitutional repository of sovereign power

that collectively belongs to the people of India. The executive Government

through the Council of Ministers is accountable to Parliament. Parliamentary

democracy is a basic and inalienable feature of the Constitution. Entering the

Parliament House with sophisticated arms and powerful explosives with a view

to lay a siege of that building at a time when members of Parliament, members

of Council of Ministers, high officials and dignitaries of the Government of India

gathered to transact Parliamentary business, with the obvious idea of

imperilling their safety and destabilizing the functioning of Government and in

that process, venturing to engage the security forces guarding the Parliament

in armed combat, amounts by all reasonable perceptions of law and common

sense, to waging war against the Government. The whole of this well planned

operation is to strike directly at the sovereign authority and integrity of our

Republic of which the Government of India is an integral component. The

attempted attack on the Parliament is an undoubted invasion of the sovereign

attribute of the State including the Government of India which is its alter ego.

The attack of this nature cannot be viewed on the same footing as a

terrorist attack on some public office building or an incident resulting in the

breach of public tranquility. The deceased terrorists were roused and impelled

to action by a strong anti-Indian feeling as the writings on the fake Home

Ministry sticker found on the car (Ext. PW 1/8) reveals. The huge and powerful

explosives, sophisticated arms and ammunition carried by the slain terrorists

who were to indulge in 'Fidayeen' operations with a definite purpose in view, is

a clear indicator of the grave danger in store for the inmates of the House. The

planned operations if executed, would have spelt disaster to the whole nation.

A war-like situation lingering for days or weeks would have prevailed. Such

offensive acts of unimaginable description and devastation would have posed a

challenge to the Government and the democratic institutions for the protection

of which the Government of the day stands. To underestimate it as a mere

desperate act of a small group of persons who were sure to meet death, is to

ignore the obvious realities and to stultify the wider connotation of the

expression of 'war' chosen by the drafters of IPC. The target, the obvious

objective which has political and public dimensions and the modus operandi

adopted by the hard-core 'Fidayeens' are all demonstrative of the intention of

launching a war against the Government of India. We need not assess the

chances of success of such an operation to judge the nature of criminality. We

are not impressed by the argument that the five slain terrorists ought not to be

'exalted' to the status of warriors participating in a war. Nor do we endorse

the argument of the learned senior counsel Mr. Sushil Kumar that in order to

give rise to the offence of waging war, the avowed purpose and design of the

offence should be to substitute another authority for the Government of India.

According to learned counsel, the deprivation of sovereignty should be the

pervading aim of the accused in order to bring the offence under Section 121

and that is lacking in the present case. We find no force in this contention. The

undoubted objective and determination of the deceased terrorists was to

impinge on the sovereign authority of the nation and its Government. Even if

the conspired purpose and objective falls short of installing some other

authority or entity in the place of an established Government, it does not in our

view detract from the offence of waging war. There is no warrant for such

truncated interpretation.

The learned senior counsel Mr. Ram Jethmalani also contended that

terrorism and war are incompatible with each other. War is normative in the

sense that rules of war governed by international conventions are observed

whereas terrorism is lawless, according to the learned counsel. This contention

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presupposes that the terrorist attacks directed against the institutions and the

machinery of the Government can never assume the character of war. The

argument is also based on the assumption that the expression 'war' in Section

121 does not mean anything other than war in the strict sense as known in

international circles i.e. organized violence among sovereign States by means

of military operations. We find no warrant for any of these assumptions and

the argument built up on the basis of these assumptions cannot be upheld. In

the preceding paras, we have already clarified that concept of war in Section

121 which includes insurrection or a civilian uprising should not be understood

in the sense of conventional war between two nations or sovereign entities.

The normative phenomenon of war as understood in international sense does

not fit into the ambit and reach of Section 121.

The learned senior counsel Mr. Ram Jethmalani argued that in a case of

war, the primary and intended target must be combatants as distinguished

from civilians, though the latter may be incidentally killed or injured and that

feature is lacking in the present case. This contention, though plausible it is,

does not merit acceptance. When an attack on the Parliament was planned, the

executors of this plan should have envisaged that they will encounter

resistance from the police and other armed security personnel deployed on

duty fairly in large numbers at the Parliament complex. The slain terrorists and

other conspirators should have necessarily aimed at overpowering or killing the

armed personnel who would naturally come in their way. Inflicting casualties

on the police and security personnel on duty as well as civilians if necessary

would have been part of the design and planning of these hard-core terrorists

and the criminal conspirators. It is not necessary that in order to constitute the

offence of waging war, military or other forces should have been the direct

target of attack. There is no such hard and fast rule and nothing was said to

that effect in the long line of cases referred to supra. The act laying siege of

Parliament House or such other act of grave consequences to the Government

and the people is much more reflective of the intention to wage war rather

than an attack launched against a battalion of armed men guarding the border

or vital installations.

Another point urged by Mr. Ram Jethmalani is that no violence or even

military operations can become war unless it is formally declared to be such by

the Central Government. So long as the Government does not formally declare

an operation to be war, it is contended that a state of peace is supposed to

exist however badly it may be disturbed. It is further contended that the

participants in the war are to be treated as the prisoners of war and they are

not amenable to the jurisdiction of domestic criminal Courts. It is pointed out

that the Hague convention and other international covenants which are

embodied in Schedule III of the Geneva Convention Act, 1960 lay down the

rules as to who the prisoners of war are and how they should be treated. In

substance, it is contended that Section 121 IPC cannot be invoked against the

participants in an undeclared 'war'. These arguments proceed on the

assumption that the expression 'war' occurring in the Penal Code is almost

synonymous with war in international law sense. The question of formal

declaration of war by the Government would only arise in a case of outbreak of

armed conflict with another country or a political group having the support of

another nation. It may be, in a case of civil war and a rebellion spreading

through the length and breadth of the country, the Government will have to

control it on war footing and it might even consider it expedient to declare that

a state of war exists, but, this theoretical possibility cannot be a guiding factor

in construing the expression 'waging war' in Section 121 especially when there

is no legal provision mandating the Government to make such declaration.

It was next contended that foreign nationals who intrude into the

territory of India and do not owe even temporary allegiance to the Government

of India cannot be charged of the offence of waging war. In other words, the

contention is that a person who is not a citizen nor a resident alien cannot be

accused of high treason. The decisions of House of Lords in Joys vs. DPP

[1946 All ER page 186] and of Privy Council in Lodewyk Johannes vs. AG

of Natal [1907 AC 326] have been referred to. The dicta in Anthony

Crammer Vs. USA [325 US pages 1-77] and in the case of United States

vs. Villato [1797 CC Pennsylvania Page 419] have also been referred to

in support of his proposition. The learned counsel has also placed reliance on

Sec. 13 of the 2nd Report of the Law Commissioners on the Indian Penal Code,

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the excerpts of which are given in Nazir Khan's case [(2003) 8 SCC 461 at

486]. The Law Commissioners observed thus:

"The law of a particular nation or country cannot be applied to any

persons but such as owe allegiance to the Government of the

country, which allegiance is either perpetual, as in the case of a

subject by birth or naturalization &c. or temporary, as in the case

of a foreigner residing in the country. They are applicable of

course to all such as thus owe allegiance to the Government,

whether as subjects or foreigners, excepting as excepted by

reservations or limitations which are parts of the law in question."

We find it difficult to sustain the argument of learned Senior Counsel. The

word 'whoever' is a word of broad import. Advisedly such language was used

departing from the observations made in the context of Treason statute. We

find no good reason why the foreign nationals stealthily entering into the

Indian territory with a view to subverting the functioning of the Government

and destabilizing the society should not be held guilty of waging war within the

meaning of Section 121. The section on its plain terms, need not be confined

only to those who owe allegiance to the established Government. We do not

have the full text of the Law Commissioners' Report and we are not in a

position to know whether the Law Commissioners or the drafters of Indian

Penal Code wanted to exclude from the ambit of Section 121 the unauthorized

foreigners sneaking into Indian territory to undertake war like operations

against the Government. Moreover, we have no material before us to hold that

the views of Law Commissioners on this aspect, were accepted. Those views,

assuming that they are clearly discernible from the extracted passage, need

not be the sole guiding factor to construe the expression 'waging war'.

Though the above observations were noticed in Nazir Khan's case, the

ultimate decision in the case shows that the guilt of the accused was not

judged from that standpoint. On the other hand, the conviction of foreigners

(Pakistani militants) was upheld in that case.

Another contention advanced by the learned counsel is that war including

civil war must have a representative character and the persons participating in

the war should represent a political entity, which has the objective of

overthrowing the Government and securing the sovereign status. This

contention too has no force in view of what we have said above regarding the

scope and ambit of the expression 'war'.

Thus, the criminal acts done by the deceased terrorists in order to

capture the Parliament House is an act that amounts to waging or attempting

to wage war. The conspiracy to commit either the offence of waging war or

attempting to wage war or abetting the waging of war is punishable under

Section 121A IPC with the maximum sentence of imprisonment for life. In the

circumstances of the case, the imposition of maximum sentence is called for

and the High Court is justified in holding the appellant Afzal guilty under

Section 121A IPC and sentencing him to life imprisonment. In addition, the

High Court has also held the appellant guilty of the offence under Section 121

IPC itself on the premise that he abetted the waging of war. The sentence of

life imprisonment imposed by the trial Court was enhanced to death sentence

by the High Court. We feel that the conclusion reached by the High Court both

in regard to the applicability of Section 121 IPC and the punishment, is correct

and needs no interference. The High Court observed: "if not acts of waging

war, what they did would certainly be acts of abetting the waging of war". In

this connection, we may clarify that the expression 'abetment' shall not be

construed to be an act of instigating the other conspirators (i.e. the deceased

terrorists). There is another shade of meaning to 'abetment' given in Section

107 IPC. It is clause secondly of Section 107 which is attracted in the case of

Afzal. We quote the relevant portion of Section 107 IPC, which reads as

follows:

107. A person abets the doing of a thing\027

Secondly.\027Engages with one or more other person or persons in

any conspiracy for the doing of that thing, if an act or

illegal omission takes place in pursuance of that

conspiracy, and in order to the doing of that thing;

As criminal acts took place pursuant to the conspiracy, the appellant, as

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a party to the conspiracy, shall be deemed to have abetted the offence. In

fact, he took active part in a series of steps taken to pursue the objective of

conspiracy. The offence of abetting the waging of war, having regard to the

extraordinary facts and circumstances of this case, justifies the imposition of

capital punishment and therefore the judgment of the High Court in regard to

the conviction and sentence of Afzal under Section 121 IPC shall stand.

The trial Court as well as the High Court also convicted the appellant

Afzal under Section 3 of Explosive Substances Act (for short 'E.S. Act') and

sentenced him to life imprisonment and to pay a fine of Rs.25000/-. Under

Section 4 of E.S. Act, he was sentenced to 20 years R.I. and to pay a fine of

Rs.25000/-.

We are of the view that Clause (a) of Section 4 of E.S.Act is attracted in

the instant case and the appellant Afzal is liable to be punished under the first

part of the punishment provision. The relevant part of Section 4 of E.S. Act is

as follows:

4. Punishment for attempt to cause explosion, or for

making or keeping explosive with intent to endanger life or

property.\027Any person who unlawfully and maliciously\027

(a) does any act with intent to cause by an explosive substance

or special category explosive substance, or conspires to

cause by an explosive substance or special category

explosive substance, an explosion of a nature likely to

endanger life or to cause serious injury to property; or

(emphasis supplied)

(b) \005

shall, whether any explosion does or does not take place and

whether any injury to person or property has been actually caused

or not, be punished\027

(i) in the case of any explosive substance, with

imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years,

and shall also be liable to fine;

The expression 'explosive substance' according to Section 2(a) shall be

deemed to include any materials for making any explosive substance; also any

apparatus, machine, implement or material used, or intended to be used, or

adapted for causing, or aiding in causing, any explosion in or with any

explosive substance.

The planned attack on the Parliament House, by the use of explosives

and fire power, was evidently a part of the conspiracy to which Afzal was a

party. The preparation of explosives meant to be used by terrorists (co-

conspirators) in the course of the planned attack of the Parliament House was

well within the knowledge of Afzal. He, in fact, procured the materials i.e.

chemicals etc., for facilitating the preparation of explosive substances at the

hideouts. This is what the evidence on record clerly points out. He is,

therefore, liable to punished under clause (a) read with (i) of Section 4 of

POTA and accordingly he shall be sentenced to the maximum sentence of

imprisonment for life and a fine of Rs.10000/-, in default of which, he shall

undergo R.I. for six months.

However, the conviction under Section 3 of the Explosive Substances Act

is set aside as we are of the view that the ingredients of the said Section are

not satisfied in order to find Afzal guilty under that Section.

Thus, Afzal will have life sentence on three counts. However, as he is

sentenced to death, the sentence of life imprisonment will naturally get

merged into the death sentence.

The appeal of Afzal is accordingly dismissed, subject to the setting aside

of convictions under Section 3(2) of POTA and Section 3 of Explosive

Substances Act.

19. CASE OF SHAUKAT (A2)

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As in the case of Mohd. Afzal, the evidence against Shaukat Hussain

consists of confessional statement made to the Deputy Commissioner of Police

and the circumstantial evidence.

(i) Confession

The confessional statement said to have been recorded by PW60\027the

DCP, Special Cell at 3.30 p.m. on 21.12.2001 is marked as PW60/6. As per

Ext.PW60/11, the DCP administered the statutory warning and obtained an

endorsement from Shaukat that he was not under any duress and he was

ready to give the statement. We shall briefly refer to the contents of the

confessional statement.

Shaukat spoke about his graduation in 1992 in Delhi, his acquaintance

with SAR Gilani of Baramulla who was doing his post-graduation in Arabic

language, starting fruit business in 1997 and disbanding the same, his

marriage with a Sikh girl named Navjot Sandhu @ Afsan Guru (A4) in the year

2000, purchase of truck in her name in June, 2000 and starting transport

business, his cousin Afzal of Sopore studying in Delhi University in 1990 and

his friendship with Gilani at that time. Then he stated about Afzal motivating

him to join the jihad in Kashmir and in October, 2001, Afzal calling him from

Kashmir and asking him to arrange a rented house for himself and another

militant, accordingly arranging rented accommodation in Boys' Hostel at

Christian Colony and Afzal accompanied by the militant Mohammed coming to

Delhi and meeting him at his house in Mukherji Nagar and Afzal disclosing to

him that he was a Pak national of Jaish-e-Mohammad militant outfit and had

come to Delhi for carrying out a 'fidayeen' attack. He then stated that during

that period, he discussed about jihad with SAR Gilani who also offered help in

carrying out the attack and Afzal thereafter going to Srinagar and bringing

some other militants who were Pak nationals and who brought with them arms

and explosives and they being accommodated at A-97, Gandhi Vihar and Afzal

and Mohammed making preparations for the attacks. He then stated about the

change of his mobile number as a precautionary measure and about his talks

with Ghazibaba, Mohammed and Afzal from his previous number and lending

his motorcycle. Then he stated that meetings were also held at his house for

discussion and execution of the plans and his wife was also in the knowledge

of their plans. Then he stated about the purchase of a second hand

Ambassador car by Afzal and Mohammed, taking another rented

accommodation in Indira Vihar. He then stated that on the night of

12.12.2001, he along with Afzal and Gilani met Mohammed and other militants

at their Gandhi Vihar hideout and Mohammed gave Laptop computer and

Rs.10 lakhs to Afzal with a direction to handover the Laptop to Ghazibaba and

the money to be distributed among Afzal, Gilani and himself. Mohammed told

them that the next day i.e. 13.12.2001, they were going to carry out 'fidayeen'

attack on the Parliament House. He then stated that Afzal called him from his

mobile phone number \005.89429 and asked him to watch TV and report about

the latest position of the movement of VIPs in Parliament. By the time he

switched on the TV, he received another call from Afzal that the mission was

on. Thereafter, he met Afzal at Azadpur Mandi and both of them went to

Gilani's house to give him Rs.2 lakhs. However Gilani wanted them to hand it

over at his house in Kashmir. Finally, he stated that he along with Afzal left for

Srinagar in his truck on the same day and they were apprehended at Srinagar

on 15th December, 2001 and the Laptop and cash recovered by the police and

later they were brought to Delhi.

Shaukat was produced before the ACMM by PW80 the next day along

with the other accused and the ACMM recorded his statement. The ACMM had

gone through the same procedure as in he case of Afzal and recorded the

statement that there was no complaint against the police personnel and that

Shaukat confirmed making the confessional statement before DCP any police

pressure.

The first date on which Shaukat retracted the confession was on

19.1.2002 when he filed an application before the Designated Court expressing

certain doubts about the 'verbal confession made before Special Cell'. He

expressed that the Delhi Police would have twisted the confession 'in a

different way and different formation'. He further stated that he was made to

sign blank papers and was not allowed to read the confessional statement

before he signed it. Therefore, he requested the Court to record his statement

afresh. Another application was filed on 3rd June, 2002 i.e. after the charge-

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sheet was filed disputing the proceedings recorded by the ACMM when he was

produced before the Magistrate on 22nd December and also stating that he

gave verbal confessional statement before a Special Cell Officer and not before

DCP or ACP. He maintained that he was forced to sign some blank papers.

The difference between the case of Afzal and Shaukat in regard to

confessional statement is that the retraction was done by Shaukat much earlier

i.e. within a month after it was recorded by the DCP. The other point of

difference is that Shaukat was sent to judicial custody unlike Afzal who was

sent to police custody after they were produced before the ACMM. The same

reasons which we have given in regard to the confessional statement of Afzal,

hold good in the case of Shaukat as well except with respect to the breach of

requirement as to judicial custody. The procedural safeguards incorporated in

Sections 50(2), 50(3) & 50(4) are violated in this case also. True, Shaukat was

sent to judicial custody after his statement was recorded by the Magistrate.

But in the absence of legal advice and the opportunity to interact with the

lawyer, there is reason to think that he would not have been aware of the

statutory mandate under Section 32(5) and therefore the lurking fear of going

back to police custody could have been present in his mind.

The learned ACMM did not apprise him of the fact that he would no

longer be in police custody. There is also nothing to show that the confessional

statement was read over to him or at least a gist of it has been made known to

him.

On the point of truth of the confessional statement, we have, while

discussing the case of Afzal, adverted to certain comments made by the

learned counsel for the appellants in order to demonstrate that the alleged

confession cannot be true judged from the standpoint of probabilities and

natural course of human conduct. Of course, we have not rested our conclusion

on these submissions, though we commented that they were 'plausible and

persuasive'. However, in the case of Shaukat, there is one additional point

which deserves serious notice. According to his version in the confession

statement, his wife Afsan Guru (A4) was also having knowledge of their plans.

Is it really believable that he would go to the extent of implicating his pregnant

wife in the crime. It casts a serious doubt whether some embellishments were

made in the confessional statement. We are not inclined to express a final

opinion on this point as we are in any way excluding the confession from

consideration on the ground of violation of procedural safeguards and the

utterly inadequate time given by PW 60 for reflection.

The other point which was harped upon by the learned counsel Mr.

Shanti Bhushan was that Shaukat and Afzal were not produced before the DCP

in the forenoon on 21st December, 2001 as directed by him. In the first

instance, Gilani was produced and when he was not prepared to give the

statement, the learned counsel suggests that Shaukat and Afzal were taken

back to police cell and subjected to threats and it was only after ensuring that

they would make the confession, they were produced before the DCP late in

the evening. It is contended that the reason given for not producing them at

the appointed time is not convincing. Though the possibility pointed by the

learned counsel cannot be ruled out, yet, the argument is in the realm of

surmise and we are not inclined to discredit the confession on this ground.

Excluding the confession from consideration for the reasons stated supra,

we have to examine the circumstantial evidence against Shaukat and assess

whether he joined in conspiracy with Afzal and the deceased terrorists to

attack the Parliament House or whether he is guilty of any other offence. The

circumstances analyzed by the High Court and put against the accused

Shaukat Hussain in the concluding part of the judgment, apart from the

confession, are the following:

1. He along with Afzal took on rent room No.5, Boys' Hostel, B-

41, Christian Colony on 7.11.2001 in which room the deceased

terrorist Mohammed had stayed.

2. Cell phone No. 9810446375 which was recovered from the

house of Shaukat was for the first time made operational on 2nd

November, 2001. This conincides with the period when Afzal

acquired a mobile phone and the first hideout was procured.

This number was in contact with the satellite phone No.

8821651150059 and was also in communication with the

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mobile No. 9810693456 recovered from the deceased terrorist

Mohammed, on which number Mohammed had received calls

from the same satellite phone No. 8821651150059, and even

Afzal had received phone calls from this number. This

establishes that Shaukat was in touch with Afzal and

Mohammed during the period November-December, 2001 and

all the three were in contact with the same satellite phone No.

8821651150059.

3. Shaukat's motorcycle was recovered form the hideout and was

used for recee by the terrorists.

4. Shaukat along with Afzal had left the premises A-97, Gandhi

Vihar along with 4/5 other boys in the morning of 13.12.2001

at about 10 a.m. in an Ambassador Car.

5. When the Parliament was under attack, Afzal was in touch with

Mohammed. Shaukat was in touch with Afzal. He was thus in

contact with the co-conspirators and the deceased terrorists at

the time of attack.

6. Shaukat had been visiting Afzal at A-97, Gandhi Vihar and 281,

Indira Vihar. He had also accompanied him when the room at

the Boys' Hostel at Christian Colony was taken on rent. It

cannot be inferred that Shaukat was merely moving around

with his cousin. Keeping in view the totality of the evidence,

Shaukat was equally liable for what was happening at the

hideouts.

7. Shaukat was present in Delhi till the forenoon of 13.12.2001

when Parliament was under attack and he absconded along with

Afzal when both of them were arrested at Srinagar. His

conduct, post attack, is incriminating.

8. The laptop recovered from the truck belonging to wife of

Shaukat was the one which was used by the terrorists to create

the identity cards of Xansa Websity and the fake Home Ministry

stickers.

The High Court then commented at paragraph 402\027

"Shaukat's role in the conspiracy was clearly that of an active

participant. Evidence on record does not show that he has been

brought within the sweep of the dragnet of conspiracy by merely

being seen associated with Afzal. There is more than mere

knowledge, acquiescence, carelessness, indifference or lack of

concern. There is clear and cogent evidence of informed and

interested co-operation, simulation and instigation against accused

Shaukat. Evidence qua Shaukat clearly establishes the steps from

knowledge to intent and finally agreement".

Taking into account the confessional statement which stands corroborated

by various circumstances proved, the High Court reached the inevitable

conclusion that Shaukat was a party to the agreement constituting

conspiracy. Once the confessional statement is excluded, the evidence

against Shaukat gets substantially weakened and it is not possible to

conclude beyond reasonable doubt on the basis of the other circumstances

enumerated by the High Court, that Shaukat had joined the conspiracy to

attack the Parliament House and did his part to fulfill the mission of the

conspirators. Apart from the confession, the High Court seems to have been

influenced by the fact that Shaukat was in touch with his cousin as well as

the deceased terrorist Mohammed through cell phone. But this finding, as

far as telephonic contact with Mohammed is concerned, is not borne out by

the cell phone records on which the prosecution relied. There was no

occasion on which Shaukat contacted Mohammed or any other terrorist. To

this extent, there seems to be an error in the High Court's finding in the last

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sentence of circumstance No.2. The inference drawn in relation to

circumstance No.6 that Shaukat "was equally liable for what was happening

at the hideouts", cannot also be accepted. He may have knowledge of what

was going on but it could not be said that he was equally liable for the acts

done by the deceased terrorists and Afzal, unless there is enough material

apart from the confession, to conclude that he was a party to the

conspiracy.

With these comments on the findings of the High Court, let us see what

could and could not be put against the appellant Shaukat. We undertake the

exercise of referring in brief to the evidence touching on each of the

circumstances adverted to by the High Court while noting the comments of Mr.

Shanti Bhushan wherever necessary.

(ii) Circumstance No.1

Shaukat in the company of Afzal seeking the assistance of PW38 who

was running STD booth in Christian Colony to get a room on rent and

approaching the proprietor of Boys' Hostel (PW37) and taking a room in the

hostel on rent is established by the evidence of PW37\027the propretor. Both

PWs 37 & 38 identified Shaukat apart from Afzal. The more important piece of

evidence is the fact revealed by PW37 that he saw one Ruhail Ali Shah staying

in the room who showed his I.Card to him on enquiries. The identity card

(Ext.PW4/4) which was shown to PW38 was identified when the two accused

led the police to the hostel on 19.12.2001 itself. He also identified the accused

Afzal and Shaukat, both before the police as well as in the Court. The fact that

Shaukat and Afzal were coming to see Ruhail Ali Shah, who was no other than

Mohammed, was also spoken to by him. The photograph\027Ext.PW29/5 of

Ruhail Ali Shah, whose real name was Mohammed, was also identified by him.

The contention of the learned counsel appearing for Shaukat that test

identification parade ought to have been held, cannot be accepted having

regard to the legal position clarified by us in the earlier part of the judgment.

The fact that PW37 did not produce the register expected to be maintained by

him, does not also discredit his testimony which has been believed by both the

Courts.

(iii) Circumstance Nos.2 & 5 (phone contacts)

The evidence of the investigating officer\027PW 66 and PW67 reveals that

two mobile phone instruments were recovered on 15th December, 2001 from

the house of Shaukat. One of them, namely, Ext.PW36/1 with the phone

No.9811573506 was recovered from the hand of Afsan Guru. This was after

the telephonic conversation over this number at 20.09 hours was intercepted

on the night of 14th December. It transpired that the said conversation was

between her and her husband Shaukat speaking from Srinagar. Another cell

phone instrument with the number 9810446375 which was operated upto 7th

December, 2001 was also found in the house and the same was seized. The

call records indicate frequent contacts between Shaukat and Gilani and

Shaukat and Afzal from the first week of November, 2001 upto 13th December,

2001. On the crucial day i.e. 13th December, 2001 just before the Parliament

attack, Mohammed spoke to Afzal at 10.43 and 11.08 hours and then Afzal

spoke to Shaukat at 11.19 hours and thereafter Mohammed spoke to Afzal at

11.25 hours and Afzal in turn called Shaukat at 11.32 hours. Mr. Shanti

Bhushan has challenged the truth of recoveries of phones on the ground that

no independent witnesses were required to witness the recovery. The learned

counsel has relied on the decisions in Sahib Singh Vs. State of Punjab

[(1996) 11 SCC 685, paras 5 & 6] and Kehar Singh Vs. State (Delhi

Administration) [(1988) 3 SCC 609 at page 654, para 54] to show that in

the absence of independent witnesses being associated with search the seizure

cannot be relied upon. We do not think that any such inflexible proposition was

laid down in those cases. On the other hand we have the case of Sanjay v.

NCT [(2001) 3 SCC 190], wherein it was observed at para. 30, that the fact

that no independent witness was associated with recoveries is not a ground

and that the Investigation Officers evidence need not always be disbelieved. Of

course, closer scrutiny of evidence is what is required. Having regard to the

fact situation in the present case, the police officers cannot be faulted for not

going in search of the witnesses in the locality. There is no law that the

evidence of police officials in regard to seizure ought to be discarded. They

took the help of Gilani who by then was in police custody to locate the house of

Shaukat and that Gilani was with the police, was mentioned by Afsan Guru in

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her Section 313 statement.

The next point urged by the learned counsel for the appellant that the

details regarding sales of mobile phones and SIM cards was not checked up

from the distributors of AIRTEL or ESSAR does not also affect the credibility of

recoveries. Such omissions in investigation cannot be magnified. The learned

counsel Mr. Shanti Bhushan as well as Mr. Sushil Kumar contended that it was

quite likely that all the deceased terrorists were having one mobile phone each,

but only three were shown to have been recovered and the other two must

have been foisted on the accused giving the colour of recovery from them. We

find no justification for this comment. Another point urged is that the recovery

of phones shown to be after 10.45 a.m. on 15th December cannot be true as

Afsan Guru was arrested on the night of 14th December, as held by the trial

Court on the basis of testimony of Srinagar police witnesses that the

information about the truck given by Afsan Guru was received early in the

morning of 15th December. It is therefore pointed out that the prosecution did

not come forward with the correct version of the search and recovery of the

articles in the house of Shaukat. In this context, it must be noted that Afsan

Guru (A4) was not consistent in her stand about the time of arrest. Whereas in

her statement under Section 313, she stated that she was arrested on 14th

December between 6.00 & 7.00 p.m. In the course of cross examination of

PW67, it was suggested that she was arrested at 6 or 6.30 a.m. on 15th

December, 2001. Her version in the statement under Section 313 cannot be

correct for the reason that the intercepted conversation was at 8.12 p.m. on

14th December, 2001 and the police could have acted only thereafter. Though

the time of arrest, as per the prosecution version, seems to be doubtful, from

that, it cannot be inferred that the search and recovery was false. One does

not lead to the other inference necessarily. The search and recovery of phones

having been believed by both the Courts, we are not inclined to disturb that

finding. In any case, the fact that the phone No. \00573506 was in the possession

of Afsan Guru stands proved from the intercepted conversation and the

evidence regarding the identification of voice.

Next, it was contended that the printouts/call records have not been

proved in the manner laid down by Section 63, 65A & 65B of the Evidence Act.

This point has been dealt with while dealing with the case of Afzal and we have

upheld the admissibility and reliability of the call records. The point concerning

the duplicate entries has already been considered in the case of Afzal and for

the same reasons we find no substance in this contention in regard to some of

the duplicate entries in the call records.

(iv) Circumstance No.3 (Recovery of motorcycle of Shaukat from 281,

Indira Vihar)

The fact that the Yamaha Escorts motorcycle with the registration

No.DL1SA3122 belonged to Shaukat Hussain, is borne out by the registration

records produced by PW53. In fact, in the course of Section 313 examination,

he did not deny that fact. This motorcycle was found at 281, Indira Vihar as

seen from the evidence of PW76 and PW32. Shaukat together with Afzal led

the police to the said premises at Indira Vihar as seen from the 'pointing out

and seizure memo' (Ext.PW32/1) coupled with the evidence of PW76. PW32/1

was attested by PW32 also who was present at the time of search. As per the

evidence of PW32, Mohd. Afzal whom he identified in the Court, had taken the

2nd Floor on rent on 9.12.2001 through the property dealer\027PW31. PW32

stated that five or six persons were found in the upstairs on 11th December,

2001. When enquired as to why they were in the flat instead of his family,

Afzal stated that they would be leaving soon. On 12th December, 2001 Afzal

left the premises after putting the lock which was broken open by the police on

16th December. We have already noticed that the chemicals used for

preparation of the explosives which were purchased by Afzal were recovered

from the premises in the presence of PW32. Six detonators in a plastic

container were also found. Though PW32 claimed to have identified the

photographs of the deceased terrorists as those who were found in the

premises, this part of the evidence is not entitled to any weight as rightly

contended by Mr. Shanti Bhushan. PW32 stated that the police showed him

some photographs and told him that those were the photos of the slain

terrorists who attacked the Parliament. Thus, the so called identification by

PW32 on the revelation by the police cannot be relied upon. In fact, the High

Court did not believe this witness on the point of identification of photos (vide

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paragraph 326 of judgment). However it is quite clear from the chemicals and

explosive materials found there that this hideout was taken by Afzal to

accommodate the deceased terrorists who stayed there to do preparatory acts.

The fact that Shaukat's motorcycle was also found there, would give rise to a

reasonable inference that Shaukat kept it for use by Afzal and his companions.

It also reinforces the conclusion that Shaukat was aware of the Indira Vihar

abode of these persons.

(v) Circumstance No.4 & 6 (Shaukat's visits to Gandhi Vihar hideout)

The evidence of PW34 who let out the 2nd Floor of his house at A-97,

Gandhi Vihar to the accused Afzal through PW33\027the property dealer, reveals

that Shaukat used to come to meet Afzal who was staying there under a false

name of Maqsood and that Shaukat used to meet Afzal at that place. PW34

identified Afzal and Shaukat. From the house in Gandhi Vihar, sulphur packets

(purchased by Afzal), Sujata Mixer grinder in which traces of explosive material

were detected, were found. PW34 identified the photograph of the terrorist

Mohammed (Ext.PW1/20) as the person who stayed with Afzal for a few days

in the premises. He stated that he could only identify the photograph of

Mohammed but not rest of them when the police showed him the photographs.

His evidence on the point of identification of Mohammed's photograph inspires

confidence as Mohammed stayed in the premises for a few days. The witness

also deposed to the fact that on 13th December, 2001, Afzal, Shaukat and four

more persons left the premises around 10 a.m. and all excepting Afzal got into

an Ambassador car and Afzal came back to the premises. However, he did not

mention that one of the accompanying persons was Mohammed. His evidence

establishes that Shaukat was a frequent visitor to Gandhi Vihar hideout and he

was with Afzal and some others even on the crucial day.

(vi) Circumstance Nos. 7 & 8

That after the attack on 13th December, Afzal and Shaukat left for

Srinagar in the truck owned by the wife of Shaukat and that the laptop, mobile

phone and cash of Rs. 10 lacs was recovered, is established by unimpeachable

evidence. In her examination under Section 313 Cr.P.C. Afsan admitted that

her husband left Delhi in the truck to Srinagar on 13th December though she

expressed her ignorance about Afzal going with him. There is the evidence of

PW 61, DSP at Srinagar that they stopped the truck near the police station at

Parampura and on the pointing out of Afzal and Shaukat they recovered the

laptop, mobile phone and Rs. 10 lacs from the truck and the two accused

were arrested at 11.45 a.m. on 15th December. Evidence of PW 61 was

corroborated by PW 62, another police officer. There is a controversy on the

question as to when the Srinagar police received the information, i.e., whether

at 10.30 or so on 15th December or in the early morning hours of 15th

December. But the fact cannot be denied that Srinagar police acted on the

information received from Delhi about the truck number which was conveyed

by Afsan (A4). PWs 64 and 65, the police officers of Delhi also testified that

Afzal and Shaukat were handed over to them along with the seized articles on

15th December at 1 P.M. as they reached Srinagar by a special aircraft. The

stand taken by Shaukat was that he was arrested in Delhi from his house on

14th December which is obviously false in view of the plethora of evidence

referred to supra. As regards the truck, he stated in the course of Section 313

examination that the truck loaded with bananas was sent to Srinagar on the

night of 13th December. The falsity of Shaukat's version of arrest in Delhi on

14th is established by the fact that on the night of 14th, Shaukat did call up

from Srinagar and spoke to his wife Afsan, the receiving number being

\00573506 which was later recovered from the house of Shaukat. The

Conversation was taped and PW48\027the Senior Scientific Officer in CFSL, Delhi

compared the voice samples of Shaukat and Afsan Guru sent to him with the

voice on the cassette which recorded intercepted conversation. He made

auditory and spectrographic analysis of voice samples. He submitted a report

Ext. PW 48/1. PW 48 testified that on comparison the voice was found to be

the same. The High Court doubted the authenticity of the intercepted

conversation on the ground that duration noted by the expert in his report was

two minutes and 16 seconds was at variance with the duration of 49 seconds

noted in the call records. The High Court laboured under the mistaken

impression that the duration was 2 minutes and 16 seconds which was the

duration of conversation between Gilani and his brother. Even then there is

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some discrepancy (between 49 and 74 seconds which according to PW48 was

approximate) but no question was put to PW 48 in this regard nor any

suggestion was put to PW 48 that the voice was not the same. If any such

challenge was made the trial Court would have heard the conversation from

the tape and noted the duration. We are, therefore, of the view that the

finding as regards interception of truck, recovery of laptop etc. from the truck

and the arrest of Shaukat along with Afzal on 15th December at about 11.45

A.M. at Srinagar cannot be doubted. As already discussed, the laptop

computer stored highly incriminating material relating to the identity cards

found with the deceased and the Home Ministry stickers pasted on the car

used by them.

In addition to the above circumstances, the prosecution has placed

reliance on the evidence of PW45 who is the landlord of Shaukat to prove that

not only Afzal but also the deceased terrorists used to come to Shaukat's

residence on the first floor a few days before the incident. In addition, PW45

stated that he had seen the persons, whose photographs he identified going to

Shaukat's residence often two or three days prior to 13th December. The

photographs were those of the deceased terrorists. He stated that he was

running a printing press in the ground floor from where he could see the

people going to the first floor. He also stated that he was called by police in the

Special Cell at Lodi Road on 17th December and he was shown some

photographs which he identified as those relating to the persons visiting

Shaukat and Navjot. But, we find no evidence of his identification before he

was examined in the Court. It is difficult to believe that he would be in a

position to identify (in the Court) after a lapse of eight months the casual

visitors going to the first floor of Shaukat by identifying their photographs. In

fact, in some of the photographs, the face is found so much disfigured on

account of injuries that it would be difficult to make out the identity on seeing

such photographs. Yet, he claimed to have identified the photographs of all the

five deceased terrorists as those visiting Shaukat's residence. He stated that

he could not identify Gilani as the person who was visiting Shaukat's residence

at that crucial time but after a leading question was put, he identified Gilani in

the Court. The High Court did not attach any weight to his evidence regarding

identification of the deceased terrorists. Though the trial Court referred to his

evidence inextenso, no view was expressed by the trial Court on the point of

reliability of his evidence regarding identification. Moreover, we find

considerable force in the argument of the learned counsel for the appellant that

it is hard to believe that the terrorists would take the risk of going to Shaukat's

place for the so called meetings thereby exposing to the risk of being

suspected, especially, at a place where two police sub-inspectors were staying

as stated by PW 45. Even according to the prosecution case, by that time, the

deceased terrorists had settled down at their respective hide-outs with the help

of Afzal. In the normal course, the terrorists would not have ventured to go

out frequently and if necessary they would call Shaukat for a meeting at their

place of stay instead of the whole gang going to Shaukat's place frequently.

For all these reasons we have to discard the evidence of PW 45 insofar as he

testified that the deceased terrorists were the frequent visitors of Shaukat's

residence before the incident.

In addition to the above circumstances, the prosecution has placed

reliance on the evidence of PW45 who is the landlord of Shaukat to prove that

not only Afzal but also the deceased terrorists used to come to Shaukat's

residence on the first floor a few days before the incident.

The prosecution also relied on another circumstance, namely, that

Shaukat had accompanied Afzal to the shop of PW49 on 4th December, 2001 to

purchase a Motorola make mobile phone which was ultimately recovered from

the deceased terrorist Rana at the spot. No doubt PW49 stated that when Afzal

came to purchase telephone from the shop, the accused Shaukat present in

the Court was also with him. We are not inclined to place reliance on the

testimony of PW41 regarding Shaukat's presence. It would be difficult for any

one to remember the face of an accompanying person after a considerable

lapse of time. The High Court did not place reliance on this circumstance.

There are, however, two circumstances which can be put against the

accused Shaukat. The secondhand motorcycle No. HR 51E-5768 was sold to

Mohd. Afzal on 8th December. He identified Afzal and Shaukat in the Court as

the persons who came to his shop on that day in the company of two others

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including a lady. He also identified them at the Special Cell on 19th December.

He could not identify the lady as Afsan. However, he identified the photograph

of the deceased terrorist Mohammed at the Special Cell on 19th December and

also in the Court. This motorcycle of Afzal was recovered from the hideout at

A-97, Gandhi Vihar which Shaukat used to visit frequently. His presence at the

shop with Mohammed apart from Afzal would show that he had acquaintance

with Mohammed also. The evidence of this witness has been criticized on the

ground that test identification parade could have been held and that there was

discrepancy in regard to the date of seizure memo of the bill book. These are

not substantial grounds to discredit the testimony of an independent witness\027

PW29. The High Court was inclined to place reliance on this witness in regard

to the identification of the deceased terrorist having regard to the fact that

they would have been in the shop for taking trial etc., and that the witness

would have had enough opportunity to observe the buyer's party for quite

some time.

Another circumstance that ought to be taken into account against

Shaukat is the telephonic conversation between him and his wife Afsan on the

night of 14th December. We have already held that the intercepted

conversation recorded on the tape is reliable and the High Court should not

have discounted it. The conversation shows that Shaukat was with another

person at Srinagar, by name Chotu (the alias name of Afzal, according to the

prosecution) and that panic and anxiety were writ large on the face of it.

In the light of the above discussion, can it be said that the circumstances

established by satisfactory evidence are so clinching and unerring so as to lead

to a conclusion, unaffected by reasonable doubt, that the appellant Shaukat

was a party to the conspiracy along with his cousin Afzal? We find that there is

no sufficient evidence to hold him guilty of criminal conspiracy to attack the

Parliament. The gaps are many, once the confession is excluded. To

recapitulate, the important circumstances against him are:

1. Taking a room on rent along with Afzal at Christian

Colony hostel into which Afzal inducted the terrorist

Mohammed about a month prior to the incident. Shaukat

used to go there.

2. The motorcycle of Shaukat being found at Indira Vihar,

one of the hideouts of the terrorists which was hired by

Afzal in the 1st week of December 2001.

3. His visits to Gandhi Vihar house which was also taken on

rent by Afzal in December 2001 to accommodate the

terrorists and meeting Afzal there quite often, as spoken

to by PW34.

4. Accompanying Afzal and Mohammed for the purchase of

motorcycle by Afzal.

5. His frequent calls to Afzal especially on the date of attack,

6. His leaving Delhi to Srinagar on the date of attack itself in

his truck with Afzal who carried a mobile phone, laptop

used by terrorists and cash of Rs.10 lakhs.

7. The fear and anxiety with which he and his wife

conversed over phone on the night of following day.

These circumstances, without anything more, do not lead to the

conclusion that Shaukat was also a party to the conspiracy in association with

the deceased terrorists. The important missing link is that there was no

occasion on which Shaukat ever contacted any of the deceased terrorists on

phone. Shaukat was not shown to be moving with the deceased terrorists at

any time excepting that he used to go with Afzal to the Boys' hostel where

Mohammed was staying initially and he once accompanied Afzal and

Mohammed to the mobile phone shop. He did not accompany Afzal at the time

of purchases of chemicals etc. used for preparation of explosives and motor

car used by terrorists to go to Parliament House. In the absence of any

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evidence as regards the identity of satellite phone numbers, the Court cannot

presume that the calls were received from a militant leader who is said to be

the kingpin behind the operations. The frequent calls and meetings between

Shaukat and Afzal should be viewed in the context of the fact that they were

cousins. Though his inclination and willingness to lend a helping hand to Afzal

even to the extent of facilitating him to flee away from Delhi to a safer place

soon after the incident is evident from his various acts and conduct, they are

not sufficient to establish his complicity in the conspiracy as such. Certain false

answers given by him in the course of examination under Section 313 are not

adequate enough to make up the deficiency in the evidence relating to

conspiracy as far as Shaukat is concerned. At the same time, the reasonable

and irresistible inference that has to be drawn from the circumstances

established is that the appellant Shaukat had the knowledge of conspiracy

and the plans to attack the Parliament House. His close association with Afzal

during the crucial period, his visits to the hideouts to meet Afzal, which implies

awareness of the activities of Afzal, the last minute contacts between him

and Afzal and their immediate departure to Srinagar in Shaukat's truck with

the incriminating laptop and phone held by Afzal would certainly give rise to a

high degree of probability of knowledge on the part of Shaukat that his cousin

had conspired with others to attack the Parliament and to indulge in the

terrorist acts. He was aware of what was going on and he used to extend

help to Afzal whenever necessary. Having known about the plans of Afzal in

collaborating with terrorists, he refrained from informing the police or

Magistrate intending thereby or knowing it to be likely that such concealment

on his part will facilitate the waging of war. In this context, it is relevant to

refer to Section 39 Cr.P.C.:

39. Public to give information of certain offences\027(1) Every

person, aware of the commission of, or of the intention of any

other person to commit, any offence punishable under any of the

following Sections of the Indian Penal Code (45 of 1860),

namely:--

(i) Sections 121 to 126, both inclusive, and Section 130

(that is to say offences against the State specified in

Chapter VI of the said Code);

\005 \005 \005 \005

shall, in the absence of any reasonable excuse, the burden of

proving which excuse shall lie upon the person so aware, forthwith

give information to the nearest Magistrate or police officer of such

commission or intention;

Thus, by his illegal omission to apprise the police or Magistrate of the

design of Afzal and other conspirators to attack the Parliament which is an act

of waging war, the appellant Shaukat has made himself liable for punishment

for the lesser offence under Section 123 IPC. If he had given the timely

information, the entire conspiracy would have been nipped in the bud. The

fact that there was no charge against him under this particular Section, does

not, in any way, result in prejudice to him because the charge of waging war

and other allied offences are the subject matter of charges. We are of the view

that the accused Shaukat is not in any way handicapped by the absence of

charge under Section 123 IPC. The case which he had to meet under Section

123 is no different from the case relating to the major charges which he was

confronted with. In the face of the stand he had taken and his conduct even

after the attack, he could not have pleaded reasonable excuse for not passing

on the information. Viewed from any angle, the evidence on record justifies

his conviction under Section 123 IPC.

In the result, we find Shaukat Hussain Guru guilty under Section 123 IPC

and sentence him to the maximum period of imprisonment of 10 years

(rigorous) specified therein. He is also sentenced to pay a fine of Rs.25000/-

failing which he shall suffer R.I. for a further period of one year. The

convictions and sentences under all other provisions of law are set aside. His

appeal is allowed to this extent.

20. CASE OF S.A.R. GILANI

The High Court set aside the conviction of S.A.R. Gilani and

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acquitted him of the various charges.

There is no evidence to the effect that Gilani was maintaining

personal or telephonic contacts with any of the deceased terrorists. There is

no evidence of any participative acts in connection with or in pursuance of the

conspiracy. He was not connected with the procurement of hideouts,

chemicals and other incriminating articles used by the terrorists. Speaking

from the point of view of probabilities and natural course of conduct there is no

apparent reason why Gilani would have been asked to join conspiracy. It is

not the case of the prosecution that he tendered any advice or gave important

tips/information relevant to the proposed attack on Parliament. None of the

circumstances would lead to an inference beyond reasonable doubt of Gilani's

involvement in the conspiracy. There is only the evidence of PW 45, the

landlord of Shaukat, that he had seen the deceased terrorists and Gilani

visiting the house of Shaukat two or three days prior to 13th December. We

have already discussed his evidence. His version of identification of visitors by

means of the photographs of the deceased terrorists was held to be incredible.

As regards Gilani, in the first instance, he frankly stated that he could not

identify the person who was sitting in the Special Cell i.e. Gilani, but, on a

leading question put by the Public Prosecutor, on the permission given by the

Court, PW 45 pointed out towards Gilani as the person that was in the Special

Cell. It is noted in the deposition that initially the witness stated that he had

not said so to the police about Gilani. In this state of evidence, no reliance can

be placed on the testimony of PW 45 in regard to the alleged visits of Gilani to

the house of Shaukat a few days prior to 13th December. The High Court

observed that in any case PW 45 did not state that he had seen Gilani visiting

the house of Shaukat in the company of five terrorists. Therefore, the case of

the prosecution that Gilani participated in the meetings at Shaukat's place

where the conspiracy was hatched does not stand substantiated.

The High Court after holding that the disclosure statement of Gilani

was not admissible under Section 27 of the Evidence Act and that the

confession of co-accused cannot also be put against him, observed thus:

"We are, therefore, left with only one piece of evidence against

accused S.A.R. Gilani being the record of telephone calls between

him and accused Mohd. Afzal and Shaukat. This circumstance, in

our opinion, do not even remotely, far less definitely and unerringly

point towards the guilt of accused S.A.R. Gilani. We, therefore,

conclude that the prosecution has failed to bring on record

evidence which cumulatively forms a chain, so complete that there

is no escape from the conclusion that in all human probabilities

accused S.A.R. Gilani was involved in the conspiracy."

The High Court concluded that "the evidence on record does not bring out a

high level of consciousness qua S.A.R. Gilani in the conspiracy."

We are in agreement with the conclusion reached by the High Court.

However, we would like to enter into a further discussion on the incriminatory

circumstances which, according to the prosecution, would have bearing on the

guilt of the accused Gilani.

The fact that Gilani was in intimate terms with Shaukat and Afzal and was

conversing with them through his mobile phone No. 9810081228 frequently

between the first week of November and the date of the crucial incident is

sought to be projected by the prosecution prominently as an incriminating

circumstance against Gilani. Incidentally, it is also pointed out that there were

contemporaneous calls between Gilani, Afzal and Shaukat and Afzal and

Mohammed. It is particularly pointed out that after Shaukat acquired mobile

phone 9810446375, the first call was to Gilani on 2.11.2001 for 22 seconds.

Gilani in turn called him up and spoke for 13 seconds. Thereafter, there was

exchange of calls between Shaukat and Gilani on seven occasions in the month

of November. In the month of November, there was a call from Shaukat

through his phone No. 9811573506 to Gilani on 7th December, 2001 and on

the 9th December, 2001, Gilani spoke to Shaukat for 38 seconds. There was a

call on the midnight of 13th December for 146 seconds from Gilani's number to

Shaukat. There is a controversy about this call which we shall refer to in the

next para. Then, soon after the attack on Parliament on 13th December, 2001,

there was a call from Shaukat to Gilani and thereafter from Gilani to Shaukat.

As regards the calls between Gilani and Afzal are concerned, the call records

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show that two calls were exchanged between them in the morning of 12th

November, 2001. Then, Gilani called up Afzal on 17.11.2001 for 64 seconds

and again on 7th December & 9th December, 2001. It is pointed out that on the

reactivation of the telephone of Afzal i.e. \00589429 on 7.12.2001, Gilani spoke

to Afzal on the same day. The High Court observed that on the basis of these

calls, it is not possible to connect Gilani to the conspiracy, especially having

regard to the fact that Gilani was known to Shaukat and his cousin Afzal.

Shaukat and Gilani lived in the same locality i.e. Mukherjee Nagar. It is not in

dispute that Gilani played a part at the marriage ceremony of Shaukat (A2)

and Afsan Guru (A4) in the year 2000. It is also not in dispute that they hail

from the same District and were the students of Delhi University. The calls

between them do not give a definite pointer of Gilani's involvement in the

conspiracy to attack the Parliament. As far as the calls between Afzal and

Gilani are concerned, there was no call too close to the date of incident. One

call was on 7th December, 2001 and another was on 9th December, 2001. On

the date of incident, there was exchange of calls between Shaukat and Gilani

twice about half-an-hour after the incident. Not much of importance can be

attached to this, as it is not unusual for friends talking about this extraordinary

event. The phone calls between these three persons, if at all, would assume

some importance if there is other reliable and relevant evidence pointing out

the accusing finger against Gilani. That is lacking in the instant case. Gilani had

invited problem for himself by disowning the friendship with Shaukat and the

contacts with Afzal. In the course of examination under Section 313, he took

the plea that Shaukat was a mere acquaintance and he had not visited him.

When asked questions about the telephonic contacts giving the numbers

thereof, Gilani feigned ignorance of the telephone numbers of Shaukat and

Afzal by giving evasive answers - 'I do not remember'. Of course, a wrong

question was also put with reference to the calls at 11.19 and 11.32 hours on

13th which were between Afzal and Shaukat as if Gilani had called them up at

that time. Still, the fact remains that he did give false answers probably in his

over anxiety to wriggle out of the situation. That does not make an otherwise

innocuous factor on incriminating circumstance.

There was a debate on the question whether the call from Gilani's

number to Shaukat's number at 00.41 hours on 12th December i.e. just on the

eve of the Parliament attack was made by Gilani. The call lasted for 146

seconds. The defence of Gilani was that Gilani's brother called Shaukat to wish

him on that night which happened to be shab-e-qadr festival night and that it

was not unusual for the friends to exchange the greetings on that night. It is

pointed out by the learned counsel for the State that the testimony of DW5\027

Gilani's wife, exposes the falsity of this defence. She stated that no one in the

family used cell phone that night. She stated that namaz was performed on the

night of 12th December, by all the family members together from 9.30 p.m.

onwards. It was closed at 7.00 a.m. on 13th December, 2001 and then they

slept. She further stated that during namaz, her husband did not move out of

the room nor talked to anybody. She also stated that the cell phone was

switched off and kept aside. She denied that any call was made by her

husband on the cell phone at 00.45 hours on the intervening night of 12th /

13th December, 2001. It was contended before us that Gilani was not

questioned on this point in his Section 313 examination. If a question was put,

a clarification would have been given that in fact, the brother of Gilani had

contacted Shaukat to convey good wishes. Comment was also made in regard

to the role, assumed by the learned trial Judge, of putting questions to DW5.

Though it appears that DW5's evidence is inconsistent with the defence

version, as no specific question was put to Gilani on this aspect, we are not

inclined to go so far as to hold that it is undoubtedly a false plea. Yet, it raises

a grave suspicion that the accused was trying to hide something which might

turn out to be adverse to him. Even if there was such a call on the 13th

midnight between Shaukat and Gilani, undue importance ought not to be

attached to this fact, having regard to the state of other circumstantial

evidence on record.

Then, the prosecution relied on the evidence of PW39 who is the landlord

of Gilani. He merely stated in general terms that he had seen Shaukat and

Afzal visiting the house of Gilani two or three times during the period Gilani

stayed in his house i.e. during a period of more than two years. PW39 did not

say anything about visits of Afzal or Shaukat a few days or weeks before the

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incident.

Then, the prosecution relied on the disclosure statement\027Ext.PW66/13

to establish that Gilani was well aware of the names of the deceased terrorists,

the change of hideouts by Afzal and the material such as police uniforms which

were procured for the purpose of conspiracy. It is contended that the relevant

portions in the disclosure statement amount to informations leading to the

discovery of facts within the meaning of Section 27 of the Evidence Act.

According to the learned counsel for the State Mr. Gopal Subramnium, the

statement of Mr. Gilani disclosing the names of five deceased terrorists who

had come from Pakistan, Shaukat taking a room on rent for Mohammed in

Christian Colony and the terrorists securing explosives, mobile phones and

police uniforms are all admissible inasmuch as these facts led the investigating

agencies to further investigations which confirmed the information furnished by

Gilani. In this connection, we may recapitulate the contention of the learned

counsel that Section 27 rests on the principle of confirmation by subsequent

events and that the facts discovered need not necessarily relate to material

objects. We have already discussed the legal position in regard to the scope

and parameters of Section 27 and we have not accepted the contention of the

learned counsel for the State. We are of the view that none of the statements

can be put against Gilani. It may be noted that Gilani was not taken to any

places such as the hideouts where the incriminating articles were found. He

only pointed out the house of Shaukat who was in the same locality on the 15th

December, 2001 which is an innocuous circumstance. Though there is some

dispute on this aspect, we are inclined to believe the evidence of the

investigating officers because Afsan Guru, in her statement under Section 313,

stated that Gilani was with the police when they came to her house. One more

important aspect that deserves mention is that there is nothing to show that

the information furnished by Gilani led to the discovery of facts such as

identification of the deceased terrorists, recovery of chemicals, police uniforms

etc., at the hideouts. That was all done on the basis of informations furnished

by other accused. There is no inextricable link between the alleged

informations furnished by Gilani and the facts discovered. None of the

investigating officers deposed to the effect that on the basis of information

furnished by Gilani, any incriminating articles were recovered or hideouts were

discovered. On the other hand, the evidence discloses the supervening

informations which led the I.Os. to discover the things.

The disclosure memo has also been assailed (Ext.PW66/13) on the

ground that the arrest of Gilani was manipulated and therefore no credence

shall be given to the police records. Whereas according to Gilani, the time of

arrest was at 1.30 p.m. on 14th December, 2001 while he was going in a bus,

according to the I.O., the arrest was effected at about 10 a.m. on 15th

December, when he was about to enter his house. Though the time of arrest at

10 a.m. does not appear to be correct in view of the information which was

already passed on to Srinagar regarding the truck of Shaukat there are certain

doubtful features in the version of Gilani too that the arrest was effected on the

afternoon of 14th December, 2001. It is not necessary to delve into this

question further for the purpose of disposal of this appeal.

The last circumstance which needs to be discussed is about the

telephonic conversation between Gilani and his brother Shah Faizal on the 14th

December 2001 at 12.22 hours. His brother Shah Faizal examined as D.W. \026 6,

spoke from Baramullah/Srinagar, which was intercepted and recorded on tape,

Ex. P.W. 66/1, which conversation was admitted. The dispute is only about the

interpretation of certain words used in that phone conversation. The

conversation was in Kashmiri language, which was translated into Hindi by

P.W. \026 71, a young man whose educational qualification was only V standard.

As it was an ordinary colloquial conversation, there is no difficulty in the

speech being translated by a less educated person. As against this translation,

the defense version of translation was given by D.Ws. \026 1 & 2.

The relevant portion of the speech as translated by P.W. \026 71 is as

follows:

Caller: (Bother of Gilani) What have you done in Delhi?

Receiver: (Gilani) It is necessary to do (while laughing) ( Eh che zururi).

Caller: Just maintain calm now.

Receiver: O.K. (while laughing)Where is Bashan?

This portion of the conversation appears almost towards the end of talk.

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The defence version of translation is as follows:

Caller: (Brother of Gilani) What has happened?

Receiver: (Gilani) What, in Delhi?

Caller: What has happened in Delhi?

Receiver: Ha! Ha! Ha! (laughing)

Caller: Relax now.

Receiver: Ha! Ha! Ha!, O.K. Where are you in Srinagar?

The controversy is centered on the point, whether the words "Eh che

zururi" were used by Gilani or not. According to the prosecution these words

indicate the state of mind of Gilani in relation to the atrocious incident in Delhi

the previous day. The High Court commented thus in paragraph 346:

"During the hearing of the appeal, we had called for the tape from

Malkhana and in the presence of the parties played the same. Indeed

the voice was so inaudible that we could not make head or tail of the

conversation. We tried our best to pick up the phonetical sounds

where there was a dispute as to what words were used, but were

unable to do so. Testimony of PW 48 reveals that he could not

analyse the talk as it was highly inaudible. PW 48 is a phonetic

expert. If he could not comprehend the conversation in a clearly

audible tone, the probability of ordinary layman picking up the

phonetic sounds differently cannot be ruled out. The prosecution

witness, PW 71, Rashid, who prepared a transcript of the tape is fifth

class pass and it was not his profession to prepare transcript of taped

conversation. The possibility of his being in error cannot be ruled out.

Benefit of doubt must go to the defence."

However the trial Court took the view that the translation by PW 71

appeared to be correct. The learned Counsel for the State submits that the

High Court should not have discarded this piece of evidence on the ground of

inaudibility, when two of the defence witnesses could hear and translate it.

However, the fact remains that the High Court was not able to make out the

words used nor the phonetic expert PW 48. Moreover, there are different

versions of translation. The defence version having been translated by

persons proficient in Kashmiri and Hindi, the view taken by the High Court

seems to us to be reasonable. At any rate, there is room for doubt. No doubt,

as per the deposition of DW 6, the brother of Gilani and the version of Gilani in

his statement under Section 313, the relevant query and answer was in the

context of quarrel between him and his wife with regard to the Kashmir trip

during Eid appears to be false in view of the tenor of the conversation. At the

same time, in view of the discrepant versions, on an overall consideration, we

are not inclined to disturb the finding of the High Court. However, we would

like to advert to one disturbing feature. Gilani rejoiced and laughed heartily

when the Delhi event was raised in the conversation. It raises a serious

suspicion that he was approving of the happenings in Delhi. Moreover, he

came forward with a false version that the remark was made in the context of

domestic quarrel. We can only say that his conduct, which is not only evident

from this fact, but also the untruthful pleas raised by him about his contacts

with Shaukat and Afzal, give rise to serious suspicion at least about his

knowledge of the incident and his tacit approval of it. At the same time,

suspicion however strong cannot take the place of legal proof. Though his

conduct was not above board, the Court cannot condemn him in the absence of

sufficient evidence pointing unmistakably to his guilt.

In view of the foregoing discussion we affirm the verdict of the High

Court and we uphold the acquittal of S.A.R. Gilani of all charges.

21. CASE OF AFSAN GURU @ NAVJOT SANDHU

The trial Court convicted her of the offence under Section 123 IPC imputing her

the knowledge of conspiracy and concealing the evidence of design to wage

war by reason of her illegal omission to inform the police. The High Court

acquitted her of the charge. We are of the view that the High Court is fully

justified in doing so. The prosecution case against this accused, who is the wife

of Shaukat Hussain, is weak, especially, in the light of the exclusion of

confessional statements of co-accused \026 Shaukat and Afzal. The High Court

held the confessions inadmissible against the co-accused and we have

expressed the same view. Incidentally, we may mention that even the

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confessions of co-accused do not attribute to her in clear terms the role of

conspirator, though on the basis of confessions it could perhaps be held that

she was in the know of things well before the planned attack on the

Parliament. In fact, there was no earthly reason for inviting her to join the

conspiracy. She was pregnant by then. Then it is to be noted that no

recoveries were effected at her instance coming within the purview of Section

27 of the Evidence Act as interpreted by us and the High Court. Practically

there is no evidence left to bring her within the purview of Section 123 IPC

much less within the net of conspiracy to wage war and to commit terrorist act.

Indisputably, no positive or participatory role has been attributed to her and as

rightly observed by the High Court, "she provided no logistics; she procured

no hideouts; she procured no arms and ammunition; she was not even a

motivator." She could have had some knowledge of the suspicious movements

of her husband with Afzal who is his cousin and a surrendered militant. Of

course, she was aware of the fact that Shaukat accompanied by Afzal left in

her truck on the day of Parliament attack in post-haste; but, the involvement

of Afzal, direct or indirect, and the attitude of her husband in relation to the

Parliament attack could have come to her knowledge after the attack when

they abruptly left for Srinagar in the truck.

The prosecution sought to rely on her disclosure memo Ex. PW 66/14 but

nothing was recovered as a direct result of the information given by her. Of

course, as far as passing on the information regarding the truck by which

Shaukat left for Srinagar, there is no dispute. But the recovery of laptop etc.

from the truck is not distinctly relatable to the information contained in the

alleged disclosure statement. The articles in the truck were recovered at the

instance of Afzal and Shaukat when it was intercepted at Srinagar. We find no

link between the disclosure and the recoveries as a cause and effect.

The next piece of evidence relied against her is the telephonic

conversation she had with her husband Shaukat on the night of 14th December

which was taped. We have held that the High Court erred in doubting the

authenticity of the said intercepted conversation recorded on the tape. The

call was received by Afsan on the Phone No. 9811573506 and the caller was

her husband. The voice of both has been identified by the expert, as already

noted. The conversation reads thus:

14.12.2001

Time: 2013 hrs 9811573506

Caller: Hello I am! Was there any telephonic call?

(Shaukat)

Receiver: Shaukat where are you?

(Afsan)

Caller: I am in Srinagar.

Receiver: Reached there.

Caller: Yes.

Receiver: Some person had come just now.

Caller: From where?

Receiver: I don't know. Don't say anything.

Caller: O.K.

Receiver: I don't know they are with the lady of ground

floor. Some vehicle is still parked outside.

Caller: O.K.

Receiver: I don't know. I did not speak anything.

Caller: O.K. Alright.

Receiver: Tell more, don't speak anything now and tell

me. I am much afraid.

Caller: No, No nothing dear, O.K.

Receiver: Are you fine?

Caller: Yes, Yes.

Receiver: Reached safely?

Caller: Yes, Yes.

Receiver: And Chotu?

Caller: Yes, Yes.

Receiver: Do you know?

Caller: Yes, Yes alright you may make a call.

Receiver: When?

Caller: In the night right now. I am calling from outside

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Receiver: Alright I will call up tomorrow (while weeping)

Caller: O.K.

As rightly observed by the High Court it shows that "Shaukat and Afsan were

talking between the lines. Afsan was scared." An inference can be drawn that

she was concerned about the safety of Shaukat and that she was aware that

Shaukat and Afzal did something that attracted police surveillance. But from

this circumstance alone, no inference can be drawn with a reasonable degree

of certainty that she was having knowledge of the plan to attack the

Parliament before it happened. The scanty evidence on record does not justify

her conviction either on the charges framed against her or under Section 123

IPC for which she was held guilty by the trial Court. The High Court's view is

unexceptionable.

22. IN THE RESULT, we dismiss the appeal filed by Mohd. Afzal and the

death sentence imposed upon him is hereby confirmed. The appeal of Shaukat

is allowed partly. He stands convicted under Section 123 IPC and sentenced to

undergo RI for 10 years and to pay a fine of Rs. 25,000/- and in default of

payment of fine he shall suffer RI for a further period of one year. His

conviction on other charges is hereby set aside. The appeals filed by the

State against the acquittal of S.A.R. Gilani and Afsan Guru are hereby

dismissed.