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Thursday, August 11, 2011

In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators 15 had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army. We, therefore, have no doubts that death sentence was the only sentence in the peculiar circumstance of this case. We, therefore, confirm the judgment of the trial Court and the High Court convicting the accused and awarding death sentence for the offences under Section 302, IPC. We also confirm all the other sentences on all other counts and dismiss these appeals.


                                              1



                     IN THE SUPREME COURT OF INDIA


                   CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NOS. 98-99 OF 2009




Mohd. Arif @ Ashfaq                                             ... Appellant


                                          Versus




State of NCT of Delhi                                       ... Respondent




                                    J U D G M E N T


V.S. SIRPURKAR, J.


1.      The   appellant   (admittedly   a   Pakistani   national)   challenges   his


concurrent   conviction   by   the   trial   Court   and   the   High   Court   as   also   the


death sentence awarded to him, in this appeal.




2.      On 22.12.2000 at about 9 p.m. in the evening some intruders started


indiscriminate firing and gunned down three army Jawans belonging to 7th


Rajputana Rifles.   This battalion was placed in Red Fort for its protection


considering the importance of Red Fort in the history of India.  There was a


Quick Reaction Team of this battalion which returned the firing towards the


intruders.   However,   no   intruder   was   killed   and   the   intruders   were


successful in escaping by scaling over the rear side boundary wall of the


Red   Fort.     This   attack   rocked   the   whole   nation   generally   and   the   city  of


                                                2



Delhi in particular as Red Fort is very significant in the history which was


taken   over  by British  Army  way   back  in  1857  and  was  retrieved   back  to


India   on   15.8.1947.     It   is   also   significant   to   note   that   the   Prime   Minister


addresses the nation from this very Red Fort on every 15th of August.




        The   three   unfortunate   soldiers   who   lost   their   lives   in   this   attack


were:-


        (i)      A civilian Sentry namely, Abdullah Thakur


        (ii) Rifleman (Barber) Uma Shankar


        (iii)    Naik Ashok Kumar, who was injured and then succumbed to


                 his injuries later on.




3.      The   Red   Fort   comes   within   the   local   jurisdiction   of   Police   Station


Kotwali.    The  Information  was  recorded by DD  No.19A,  Exhibit  PW-15/B


and   Sub-Inspector   (S.I.)   Rajinder   Singh   (PW-137)   rushed   to   the   spot.


SHO   Roop   Lal   (PW-234)   who   was   the   Station   House   Officer   of   Kotwali


police   station   also   reached   the   spot   and   recorded   the   statement   of   one


Capt.   S.P.   Patwardhan   (PW-189)   which   was   treated   as   the   First


Information Report.  This First Information Report refers to two persons in


dark clothing and armed with AK 56/47 rifles having entered the Red Fort


from the direction of Saleem Garh Gate/Yamuna Bridge.  It is further stated


that   first   they   fired   at   the   civilian   Sentry   Abdullah   Thakur,   secondly   they


came   across   rifleman   (barber)   Uma   Shankar   near   Rajputana   Rifles   MT


                                                3



lines   and   fired   at   him   due   to   which   he   died   on   the   spot.     It   is   further


mentioned that lastly the intruders ran into the room in the unit lines close


to   the   office   complex   and   fired   shots   at   Naik   Ashok   Kumar   who   was


seriously   injured.     The   FIR   further   mentions   that   thereafter   they   ran


towards   ASI   Museum   complex   and   fired   in   the   direction   of   police   guard


room located inside the Museum.   At this stage, the quick reaction team


started firing at them.  However, they escaped into the wooded area close


to   the   ring   road.     The   FIR   also   mentions   that   some   fired/unfired


ammunition was recovered from the spot.




4.      The   investigation   started   on   this   basis.     During   the   examination   of


the   spot,   one   live   cartridge   Exhibit   PW-115/38   and   number   of   cartridge


cases   (Exhibit   PW-115/1-37)   and   (Exhibit   PW-189/32-71),   three


magazines (Exhibit PW-189/1-3) of assault rifles, one of which had 28 live


cartridges (Exhibit PW-189/4-31) were found and handed over to the police


vide memo Exhibit PW-189/C and Exhibit PW-115/A.   The empties of the


cartridges fired by the Quick Reaction Team through the self loading rifles


were   deposited   with   ammunition   store   of   7   Rajputana   rifles   and   were


handed over to the police later on vide memo Exhibit PW-131/C.




5.      On   the   next   day,   i.e.   on   23.12.2000,   in   the   morning   at  about  8.10


a.m.,  the BBC  news channel flashed the  news  that Lashkar-e-Toiba  had


claimed the responsibility for the shooting incident in question which was


                                             4



entered   in  the  daily diary.   On  the   same  morning  one   AK56   assault  rifle


(Exhibit PW-62/1) lying near Vijay Ghat on the back side of Lal Qila was


found  abandoned.    There  were  seven  cartridges  in the  magazine.    They


were   taken   into   police   possession   vide   memo   Exhibit   PW-62/F.     On   the


same morning in early hours extensive search went on of the back side of


the Red Fort.  The police found a polythene bag containing some currency


notes of different denominations and a piece of paper, a chit (Exhibit PW-


183/B) on which a mobile No.9811278510 was  mentioned.   According to


the prosecution, the intruders had escaped from that very spot by scaling


down the rear side boundary wall of Red Fort using the pipe and further a


small   platform   for   landing   from   below   the   pipe.     According   to   the


prosecution, while jumping from the platform, the said polythene bag with


cash and the paper slip fell out of the pocket of one of the intruders.  The


currency   notes   and   the   paper   slip   were   seized   vide   memo   Exhibit   PW-


183/A.  It was on the basis of this cell phone number that the investigation


agency   started   tracing   the   calls   and   collecting   the   details   from   which   it


transpired   that   between   7:40   p.m.   and   7:42   p.m.   on   the   night   of   the


incident,   two   calls   were   made   from   this   mobile   number   to   telephone


No.0194452918  which  was  the number of one BBC correspondent in Sri


Nagar,   Altaf   Hussain   (PW-39).   It   was   also   found   that   three   calls   were


made from same mobile number to telephone number 0113355751 which


number was found to be that of BBC correspondent in Delhi, Ayanjit Singh


                                             5



(PW-41) between 9:25 p.m. and 9:33 p.m.   The police found out that this


mobile No.9811278510 was being used from two instruments whose IMEI


number   (identification   number   engraved   on   the   mobile   handset   by   the


manufacturer) were obtained from mobile service provider ESSAR.  These


numbers   were   445199440940240   and   449173405451240.     The   police


could also find out that the person who had mobile connection card having


No.9811278510   had   another   mobile   cash   card   of   ESSAR   company   with


No.9811242154 and from this number large number of calls were found to


have   been   made   to   telephone   No.2720223   which   was   found   to   be   the


number of telephone installed at flat No.308A, DDA flats, Ghazipur, Delhi.


This   flat   was   registered   in   the   name   of   one   Farzana   Farukhi.     Similarly,


number   of   calls   were   found   to   have   been   made   from   telephone


No.2720223 to 9811242154.   It was also found that number of calls were


made   from   cell   No.   9811242154   to   telephone   No.6315904   which   was   a


landline number installed at House No.18-C, Gaffur Nagar, Okhala where


a computer centre in the name of `Knowledge  Plus' was  being run.   The


further investigation revealed that this said computer centre was being run


by one Mohd. Arif @ Ashfaq (appellant herein) who was residing at the flat


mentioned   as   flat   No.308A,   DDA   Flats,   Ghazipur   where   landline


No.2720223  was  installed.    The police, therefore, could connect the said


flat No.308A at Ghazipur and the computer Centre i.e. Knowledge Plus at


Okhala   and   could   also   connect   Mohd.   Arif   @   Ashfaq   with   these   two


                                            6



places.  A surveillance was kept on these places for two days.  During this


period of surveillance, the computer centre had remained closed.   On the


basis   of   some   secret   information   the   premises   at   308A,   Ghazipur   were


raided on the night of 25-26.12.2000 and the appellant-accused Mohd. Arif


@ Ashfaq was apprehended by the police while he was entering the flat.  It


was   found   during   the   investigation   that   Farzana   Farukhi   in   whose   name


telephone   No.   2720223   was   registered   was   a   divorcee   sister-in-law   of


Mohd. Arif @ Ashfaq i.e. her sister was  married to Mohd. Arif @ Ashfaq


whose  name was  Rehmana Yusuf Farukhi.   Mother of these  two  sisters,


namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.




6.     On his apprehension, Mohd. Arif @ Ashfaq (appellant) was cursorily


searched   by   Inspector   Ved   Prakash   (PW-173)   during   which   one   pistol


(Exhibit   PW-148/1)   with   six   live   rounds   was   found   with   him.     They   were


sealed and taken into police custody.   The appellant on his apprehension


accepted   his   involvement   in   the   incident   inside   the   Lal   Qila   and   gave


further   information  to   the   policemen  about   the   presence   of  his   associate


Abu Shamal @ Faizal as also the ammunitions at their hide out at House


No.G-73 Batla House, Murari Road, Okhala, New Delhi.




7.     He was immediately taken to that house by the raiding team which


was   headed   by   Inspector   Mahesh   Chandra   Sharma   (PW-229)   and   truly


enough, in pursuance of the information given by him, the associate Abu


                                           7



Shamal was found to be there.  The police party did not approach the flat


immediately as the house was found to be locked.  However, at about 5.15


a.m. in the morning one person had gone inside the house and closed the


door from inside.  The police then asked him to open the door but instead


of opening the door, he started firing from inside at the police party.   The


police party returned the firing with their fire arms and ultimately the person


who was firing from inside died and was identified by appellant Mohd. Arif


@ Ashfaq to be Abu Shamal @ Faisal.  Substantial quantity of ammunition


and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-


229/1),   two   hand   grenades   one   of   which   was   kept   in   Bandolier   (Exhibit


PW-229/5), two magazines (Exhibit PW-229/2-3) one of which had 30 live


cartridges.  Some material for cleaning arms kept in a pouch (Exhibit PW-


229/6) and Khakhi Colour Uniform (Exhibit PW-229/8) were recovered and


seized   by   the   police   vide   seizure   Memo   (Exhibit   PW-229/D   &   E).     A


separate   case  was   registered   under  Sections  186,   353  and   307,   IPC   as


also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of


the Arms Act was registered at New Friends Colony in FIR No.630/2000.


That   case   ended   up   in   preparation   of   a   closure   report   because   the


accused had already died in the encounter with the police.  After the above


encounter,  the accused appellant was  brought back to his flat where  the


search had already been conducted by policemen.  During that search one


Ration card which  was  ultimately found to be forged (Exhibit PW-164/A),


                                             8



one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13/1),


one   cheque   book   of   HDFC   bank   in   the   name   of   Mohd.   Arif   @   Ashfaq


(appellant herein), one ATM card, one cheque book of the State Bank of


India   in  the  name  of  Rehmana  Yusuf  Farukhi,   wife  of  accused  appellant


was found.  The said rifle was also taken into custody.  One pay-in slip of


Standard   Chartered   bank   (Exhibit   PW-173/K)   showing   deposit   of   Rs.5


lakhs   in   the   account   of   M/s.   Nazir   &   Sons   was   found.     The   said   firm


belonged   to   other   accused   Nazir   Ahmad   Qasid.     This   amount   was


deposited  by the appellant may be through  Hawala  from the high ups of


the   Lashkar-e-Toiba.     Mohd.   Arif   @   Ashfaq   (appellant   herein)   was   then


brought back and there S.I. Harender Singh (PW-194) arrested Mohd. Arif


@ Ashfaq (appellant herein).   He searched him again when one Motorola


mobile handset was  recovered from his possession.   The number of that


instrument was found to be 9811278510.  Its IMEI number which fixed the


identification   number   of   the   hand   set   engraved   on   the   instrument   was


445199440940240.  The cell phone was thereafter taken in possession.




8.     In his interrogation by S.I. Harender Singh (PW-194), accused made


a   discovery   statement   which   is   recorded   as   Exhibit   148/E   about   one


assault rifle which was  thrown near Vijay Ghat behind the Red Fort after


the incident by one of the associates (this was  already recovered by the


police) and one AK-56 rifle and some ammunition behind the rear wall of


                                           9



Red Fort by his another associate.   In pursuance of that, he was taken to


the backside of Red Fort and from there on his pointing out one AK-56 rifle


(Exhibit   PW-125/1),   two   magazines   (Exhibit   PW-125/2-3)   having   live


cartridges,   one  bandolier   and   four  hand  grenades   were  recovered  in  the


presence of the ballistic experts S.K. Chadha (PW-125) and N.B. Bardhan


(PW-202).  The same was taken to the police station. The ballistic experts


after   defusing   the   hand   grenades   took   the   whole   material   in   their


possession vide Exhibit memo PW- 218/C.   Another discovery statement


(Exhibit   PW-168/A)   was   made   on   01.01.2001   through   which   he   got


recovered   three  hand  grenades   from  the   place  near  Jamia  Millia  Islamia


University duly hidden.   This spot  was   on the  back  side  of his computer


centre   `Knowledge   Plus'.     They   were   seized   vide   seizure   memo   Exhibit


PW-168/B.  A separate FIR was also recorded by FIR No.3/2001.




9.     The prosecution case, as it revealed on the basis of the investigation


which followed, appears to be that the accused-appellant was a Pakistani


national   and   eventually   joined   a   terrorist   organization   called   Lashker-e-


Toiba.     The   accused-appellant   took   extensive   training   by   using


sophisticated  arms  like AK-56 rifles and hand grenades  and  had illegally


entered   the   Indian   territory   along   with   arms   and   ammunition   in   August,


1999 and camped himself at Srinagar in the company of other members of


Lashker-e-Toiba who  were  similarly motivated by that Organization.    The


                                               10



Organization had also decided to overawe India by their terrorist activities


in   different   parts   of   India   and   to   fulfill   that   object,   the   accused-appellant


and   his   fellow   terrorists   had   planned   an   attack   on   Army   stationed   inside


Red   Fort.     According   to   the   prosecution,   the   money   required   for   this


operation   was   collected   by   the   accused-appellant   through   hawala


channels, which was evident from the fact that during the investigation, he


had led the police to one of the hawala dealers in Ballimaran area in Old


Delhi.     One   Sher   Zaman   Afghani   and   Saherullah   were   the   said   hawala


dealers,   but   they   could   not   be   apprehended.     The   police,   however,


recovered   Rs.2   lakhs   from   the   shop   which   was   left   open.     From   the


information   given   by   the   accused-appellant,   the   police   ultimately   caught


hold of 10 more persons, which included his Indian wife Rehmana Yusuf


Farukhi.     The   other   accused   persons   were   Nazir   Ahmad   Qasid,   his   son


Farooq Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam, Sadakat


Ali, Shahanshah Alam, Devender Singh, Rajeev Kumar Malhotra and Mool


Chand Sharma.  Excepting the accused-appellant, nobody is before us, as


few of them were acquitted by the trial Court and others by the appellate


Court.  It is significant enough that there is no appeal against the acquittal


by the High Court.   There were number of other persons according to the


prosecution   who   were   the   co-conspirator   with   the   accused-appellant.


However,   they   were   not   brought   to   book   by   the   police.     They   were


declared as proclaimed offenders.   There is a separate charge-sheet filed


                                             11



against those proclaimed offenders also.




10.    In   order   to   establish   an   Indian   identity   for   himself,   the   accused-


appellant had married Rehmana Yusuf Farukhi who was also joined as an


accused.   According to the prosecution, she had full knowledge about the


accused-appellant being a Pakistani national and  his nefarious  design of


carrying out terrorist activities.  Significantly enough, she had married only


14   days   prior   to   the   shoot-out   incident   i.e.   on   8.12.2000.     She   was   of


course,   paid   substantial   amounts   from   time   to   time   by   the   accused-


appellant prior to her marrying him and this amount was deposited in her


bank   account   No.   5817   with   the   State   Bank   of   India.     The   prosecution


alleged   that   the   accused-appellant   was   in   touch   with   Rehmana   Yusuf


Farukhi even prior to the marriage.   One other accused, Sadakat Ali was


arrested   for   having   given   on   rent   his   property   in   Gaffur   Nagar   to   the


accused-appellant   for   running   a   computer   centre   in   the   name   of


`Knowledge   Plus'.     Sadakat   Ali   is   said   to   have   been   fully   aware   of   the


design of the accused-appellant and he had knowingly joined hands with


the accused-appellant and had not informed the police that he had let out


his premises to the accused-appellant.   Huge money used to be received


by   the   accused-appellant   which   he   used   to   deposit   in   the   accounts   of


accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad   Qasid   in   Standard


Chartered   Grindlays   Bank's   branch   at   Srinagar   and   after   withdrawing


                                              12



money so deposited, the same used to be distributed amongst their fellow


terrorists   for   supporting   the   terrorist   activities.     According   to   the


prosecution,   huge   amount   of   money   was   deposited   by   the   accused-


appellant   in   the   two   bank   accounts   of   Nazir   &   Sons   and   Farooq   Ahmed


Qasid   with   Standard   Chartered   Grindlays   Bank's   branch   at   Connaught


Place,   New   Delhi.     The   police   was   able   to   retrieve   one   deposit   receipt


showing deposit of five lakhs of rupees in November, 2000 in the account


of   Nazir   &   Sons.     The   said   receipt   was   recovered   from   the   flat   of   the


accused-appellant   after   he   was   apprehended   on   the   night   of


25/26.12.2000.




11.     Some other accused of Indian origin had also helped the accused-


appellant,   they   being   Devender   Singh,   Shahanshah   Alam   and   Rajeev


Kumar   Malhotra.     They   got   a   forged   learner's   driving   license   No.   9091


(Exhibit   PW-13/C)   which   was   purported   to   have   been   issued   by   Delhi


Transport Authority's office at Sarai Kale Khan, wherein a false residential


address   was   shown   as   B-17,   Jangpura.     On   that   basis,   the   accused-


appellant   also   got   a   permanent   driving   license   (Exhibit   PW-13/1)   in   his


name   from   Ghaziabad   Transport   Authority.     The   accused-appellant,   with


the   cooperation   of   these   three   accused   persons,   had   submitted   a


photocopy   of   a   ration   card,   again   with   the   forged   residential   address   as


102, Kaila Bhatta, Ghaziabad.  This very driving license was then used by


                                                13



the accused-appellant for opening a bank account with HDFC Bank in New


Friends Colony, New Delhi, wherein he had shown his permanent address


as 102, Kaila Bhatta, Ghaziabad and mailing address as 18, Gaffur Nagar,


Okhla, New Delhi.  Needless to mention that even these two were not his


actual addresses.  These were utilized by him for stashing the money that


he received from the foreign countries.   Accused Babar Mohsin provided


shelter to the accused-appellant in his house in Delhi in February-March,


2000,   so   that   the   accused-appellant   could   prepare   a   base   in   Delhi   for


carrying   out   terrorist   acts   in   Delhi.     This   Babar   Mohsin   had   also


accompanied the accused-appellant on his motorcycle to different parts of


Delhi   in   order   to   show   various   places   of   importance   to   the   accused-


appellant,  which  could be  targeted for  a  terrorist attack.   The police  was


also able to retrieve a letter (Exhibit PW-10/C) addressed to Babar Mohsin,


thanking him for the help extended by him to the accused-appellant during


his   visit   to   Delhi.     This   letter   was   written   from   Srinagar.     This   letter   was


seized by the police from the dickey of the motorcycle belonging to Babar


Mohsin  on 07.01.2001.    One  other  accused Matloob  Alam  was  having  a


ration   shop   in   Okhla   while   accused   Mool   Chand   Sharma   was   the   area


Inspector of Food & Supply Department.  Both these accused persons had


helped the  accused-appellant  in getting a ration card  (Exhibit PW-164/A)


which   contained   false   information.     Accused   Matloob   Alam   was   charged


for   distributing   number   of   fake   ration   cards   by   taking   bribe   from   the


                                            14



persons to whom  the cards were  issued.   A separate FIR being FIR No.


65/2001   was   registered   against   Matloob   Alam   at   Police   Station   New


Friends Colony, New Delhi.  In fact, the ration card mentioned earlier was


prepared   by   the   accused   Matloob   Alam   and   the   handwriting   expert   had


given a clear opinion that the said ration card was in the hands of Matloob


Alam himself.   The prosecution, therefore, proceeded against 11 accused


persons, in all, who were charge-sheeted on the ground that they had all


conspired together to launch an attack on the Army establishment  inside


the Red Fort so as to pressurize the Government of India to yield  to the


demand of the militants for vacating Kashmir




12.    The   police   got   examined   all   the   arms   and   ammunition   from   the


ballistic  expert N.B.  Bardhan  (PW-202), Senior  Scientific  Officer-I, CFSL,


New Delhi.   Needless to mention that the said witness had found that the


cartridges of the gun had actually been fired from AK-56 rifles which was


got recovered by the accused-appellant from the backside of Red Fort and


Vijay   Ghat.     The   weapons   were   found   by   the   witness   to   be   in   working


order.     The   hand   grenades   recovered   at   the   instance   of   the   accused-


appellant   from   Jamia   Milia   Islamia   University   were   also   examined   and


found   to   be   live   ones   and   these   were   defined   as   "explosive   substance".


The   pistol   and   the   cartridges   recovered   from   the   possession   of   the


accused-appellant   on   his   apprehension   were   also   got   examined   by


                                              15



another ballistic expert Shri K.C. Varshney (PW-211), who vide his report


Exhibit   PW-211/A,   found   the   said   pistol   to   be   in   working   order   and   the


cartridges to be live ones and being capable of being fired from the said


pistol.     The   police   also   found   that   the   eleven   empties   of   fired   cartridges


from Self Loading Rifles (SLRs) of the Army men were actually fired from


SLRs made by Ordinance Factory at Kirki, India and that they could not be


loaded in either of the two Assault Rifles recovered by the police.




13.     This   was,  in  short,   a  conspiracy  and   after  obtaining   the  necessary


sanctions, the police filed a charge-sheet against 11 accused persons.  All


the cases were committed to the Court of Sessions and though they were


registered   as   separate   Sessions   cases,   they   were   clubbed   by   the   trial


Court   and   the   case   arising   out   of   FIR   No.   688/2000   was   treated   as   the


main   case.     We   do   not   propose   to   load   this   judgment   by   quoting   the


charges framed against all the accused persons.  Suffice it to say that they


were   charged   for   the   offence   punishable   under   Sections   121,   121A   and


120-B   IPC   read   with   Section   302,   IPC.   The   accused-appellant   was


individually charged for the offence punishable under Section 120-B, IPC


on various counts as also for the offence punishable under Section 3 of the


Arms Act read with Sections 25 and 27 of the Arms Act as also Sections 4


and 5 of the Explosive Substances Act.  Lastly, the accused-appellant was


                                           16



also charged for the offence punishable under Section 14 of the Foreigners


Act for illegally entering into India without valid documents.




14.    The prosecution examined as many as 235 witnesses and exhibited


large   number   of   documents.     Accused   Rehmana   Yusuf   Farukhi   alone


adduced evidence in defence and examined her own mother and tried to


show that they did not know the accused-appellant was a militant and that


the money in the bank account of Rehmana Yusuf Farukhi was  her own


money and not given by the accused-appellant.




15.    The   accused-appellant   was   convicted   for   the   offence   punishable


under Sections120-B, 121 and 121-A, IPC, Sections 186/353/120-B, IPC,


Section 120-B, IPC read with Section 302, IPC, Sections 468/471/474, IPC


and also under Section 420 read with Section 120-B, IPC.   The accused-


appellant was also held guilty for the offence punishable under Section 25


of the Arms Act, Section 4 of the Explosive Substances Act and Section 14


of   the   Foreigners   Act.     We   are   not   concerned   with   the   convictions   of


accused   Nazir   Ahmad   Qasid,   Farooq   Ahmed   Qasid,   Rehmana   Yusuf


Farukhi, Babar Mohsin, Sadakat Ali and Matloob Alam.  Barring the above


accused, all the other accused persons were acquitted by the trial Court.


The   accused-appellant   was   awarded   death   sentence   for   his   convictions


under Section 121, IPC as also under Section 302 read with Section 120-


B,   IPC.     He   was   awarded   rigorous   imprisonment   for   10   years   for   his


                                            17



conviction   under   Section   121-A,   IPC.     He   was   awarded   sentence   of   life


imprisonment   for   his   conviction   under   Section   4   of   the   Explosive


Substances   Act,   while   on   other   counts,   he   was   awarded   rigorous


imprisonment   for   7   years   for   the   conviction   under   Sections


468/471/474/420, IPC.  He was awarded rigorous imprisonment for 3 years


for his conviction under Section 25 of the Arms Act.   He was  awarded 2


years' rigorous imprisonment for his conviction under Section 353, IPC and


3 months' rigorous imprisonment for his conviction under Section 186, IPC.


He  was  slapped  with  fines  also with  defaults stipulation.    The  sentences


were, however, ordered to run concurrently.  The other accused Rehmana


Yusuf Farukhi, Babar Mohsin, Nazir Ahmad Qasid, Farooq Ahmed Qasid,


Matloob   Alam   and   Sadakat   Ali   were   awarded   various   convictions;


however, their appeal was allowed by the High Court.  That leaves us only


with   the   appeal   filed   by   the   present   appellant.     The   High   Court   also


confirmed the death sentence awarded by the trial Court to Mohd. Arif @


Ashfaq   (accused-appellant).     The   State   had   also   filed   one   appeal


challenging the acquittal of accused Rehmana Yusuf Farukhi, Sadakat Ali


and Babar Mohsin for the serious offence of hatching conspiracy with co-


accused   Mohd.   Arif   @   Ashfaq,   Farooq   Ahmed   Qasid   and   Nazir   Ahmad


Qasid   to   wage   war   against   the   Government   of   India,   so   also   an   appeal


was   filed   against   the   accused   Farooq   Ahmed   Qasid   and   Nazir   Ahmad


Qasid for enhanced punishment of death penalty in place of the sentence


                                              18



of   life   imprisonment   awarded   to   them   by   the   trial   Court.     The   State,


however,   did   not   file   any   appeal   against   the   four   acquitted   accused


persons.     The   High   Court,   after   examination   in   details,   confirmed   the


conviction   and   the   sentence   only   of   the   present   appellant,   while   all   the


other appeals filed by other accused persons were allowed and they were


acquitted.  The appeals filed by the State for enhancement, as also against


the   acquittal   of   other   accused   persons   from   the   other   charges,   were


dismissed by the High Court.   That is how, we are left with the appeal of


Mohd. Arif @ Ashfaq, the present appellant herein.




16.     The  first contention  raised by Ms. Kamini Jaiswal,  learned  counsel


appearing   on   behalf   of   the   respondent   was   that   no   such   incident   of


outsiders   going   into   the   Red   Fort   and   shooting   ever   happened.     The


learned counsel further argued that the said shooting was as a result of the


brawl   between   the   Army   men   themselves.     In   order   to   buttress   her


argument,   the   learned   counsel   further   said   that   even   the   police   was   not


permitted   to   enter   the   Red   Fort   initially   and   though   an   enquiry   was   held


regarding   the   incident,   the   outcome   of   such   enquiry   has   never   been


declared.     The   learned   counsel   attacked   the   evidence   of   Capt.   S.P.


Patwardhan  (PW-189)  on the  ground  that  the  report  made by him  which


was   registered   as   FIR   on   22.12.2000   was   itself   suspicious,   as   it   was


clearly   hearsay.     The   learned   counsel   further   relied   on   the   evidence   of


                                            19



Head   Constable   Virender   Kumar   (PW-15)   who   was   a   duty   officer   at


Kotwali   Police   Station   and   claimed   that   he   received   the   information   at


about 9.25 pm which he had recorded as DD No. 19A.  It was pointed out


that the said DD Entry was handed over to S.I. Rajinder Singh (PW-137)


and Constable Jitender Singh (PW-54) was directed to accompany him.  It


was also pointed out that SHO Roop Lal (PW-234) was informed about the


incident and he handed over to S.I. Rajinder Singh (PW-137) the report at


11.30   pm   and   it   was   on   that   basis   that   the   FIR   No.   688/2000   was


registered   at   about   12.20   am   on   23.12.2000.     The   learned   counsel  then


relied upon the report in the newspaper Hindustan Times in which it was


stated that the police intelligence was not ruling out the possibility of shoot


out being insiders' job.  The learned counsel also referred to the evidence


of Constable Jitender Singh (PW-54), Naik Suresh Kumar (PW-122), Major


Manish Nagpal (PW-126), Mahesh Chand (PW-128), Retd. Subedar D.N.


Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh


(PW-137), as also the evidence of Major D.K. Singh (PW-144).  It was tried


to be argued that there were  inter se  contradictions in the evidence of all


the   witnesses   and   the   whole   story   of   some   intruders   going  into   the   Red


Fort and shooting was nothing but a myth.   It was also suggested by the


learned  counsel  that there was  serious dispute in the  versions regarding


the ammunition used by the intruders and ammunition used by the Army


personnel.     Fault   was   found   with   the   timing   of   registration   of   FIR   No.


                                             20



688/2000.    The learned counsel also stated that the prosecution had not


brought on record any register which is maintained for recording the entry


of any vehicle in the Red Fort.   The learned counsel further suggested a


contradiction in the evidence of Hawaldar Dalbir Singh (PW-134) and the


statement of Retd. Subedar D.N. Singh (PW-131) regarding as to who took


the rifle from Hawaldar Dalbir Singh (PW-134), whether it was Major D.K.


Singh (PW-144) or Major Manish Nagpal (PW-126).   About the timings of


various police officers reaching including that of SHO Roop Lal (PW-234),


the learned counsel pointed out that there were some deficiencies.




17.    Before   we   appreciate   these   features   of   the   evidence   and   the


contentions   raised   by   the   learned   counsel   for   the   defence,   we   must   first


clarify   that   this   Court   ordinarily   does   not   go   into   the   appreciation   of


evidence,   particularly,   where   there   are   concurrent   findings   of   facts.     We


have very closely examined both the judgments below and found that there


is   a   thorough   discussion   as   regards   the   evidence,   oral   as   well   as


documentary, and it was only after a deep consideration of such evidence


that the trial and the appellate Courts have come to the concurrent finding


against the appellant.   In order to see as to whether the acquittal of other


accused   persons   can   be   linked   to   the   verdict   against   the   appellant,   we


have examined even the other evidence which did not necessarily relate to


the criminal activities committed by the appellant.   Inspite of the fact that


                                              21



there   has   been   a   concurrent   verdict   against   this   appellant,   still   we   have


examined   the   oral   and   documentary   evidence   not   only   relating   to   the


appellant,   but   also   to   the   other   accused   persons.     As   a   result,   we   have


come   to   the   conclusion   that   the   trial   and   the   appellate   Courts   have   fully


considered   the   oral   and   documentary   evidence   for   coming   to   the


conclusions that they did.  In view of the concurrent findings, the scope to


interfere   on   the   basis   of   some   insignificant   contradictions   or   some


microscopic   deficiencies   would   be   extremely   limited.     All   the   same,   this


being a death sentence matter, we ourselves have examined the evidence.




18.     From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major


Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar


Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear


opinion that what took place on the said night on 22.12.2000 could not be


just   set   aside   as   an   internal   brawl   between   the   Army   men   themselves.


The suggestion is absolutely wild.  We find from the evidence that none of


these   witnesses   who   have   been   named   above   and   who   were   the   direct


witnesses   to   the   firing   incident   have   been   given   this   suggestion   in   their


cross-examination that it was merely a brawl between the Army men.  That


apart, there are some circumstances which completely belie the theory of


internal   brawl.     It   would   have   to   be   remembered   that   a   civilian   Sentry


Abdullah Thakur was the first to lose his life.   There is nothing to suggest


                                               22



that   the   said   Sentry   Abdullah   Thakur   or   the   second   casualty   Rifleman


(Barber)   Uma   Shankar,   as   also   Naik   Ashok   Kumar   had   developed   any


enmity with anybody in the battalion.  Further, if this was a brawl between


the Army men, there was no reason why Abdullah Thakur was shot at and


killed.     We  also   do   not   find   any   reason   to   suspect   the   version   of   Major


Manish Nagpal (PW-126) who himself claimed to have fired six rounds in


the  direction of Ring Road after taking a self loading rifle from Hawaldar


Dalbir Singh (PW-134).  In fact, there is no contradiction in his version and


the   version   of   Hawaldar   Dalbir   Singh   (PW-134).     The   version   of   Major


Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major


D.K.  Singh  (PW-144) as  also the  evidence  of Retd.  Subedar  D.N.  Singh


(PW-131).     Even   Major   D.K.   Singh   (PW-144)   had   fired   alongwith   Major


Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties


of   which   were   given   by   these   two   officers   to   Retd.   Subedar   D.N.   Singh


(PW-131).  Ultimately, these empties were produced before the civil police


officers   and   were   taken   into   possession   vide   Exhibit   PW-131/A.     This


version is also corroborated by Hawaldar Dalbir Singh (PW-134).  We have


carefully  seen   the  evidence  of  all  these   witnesses   mentioned   above  and


found   it   trustworthy.     It   must   be   mentioned   that   at   9.23   pm,   a   call   was


made   to   the   Police   Control   Room   (PCR)   by   Major   Manish   Nagpal   (PW-


126)   suggesting   that   some   persons   had   run   away   after   firing   inside   the


Red Fort and that they had gone towards the Ring Road.  This was proved


                                          23



by   the   lady   Constable   Harvir   Kaur,   PCR   (PW-77)   and   the   concerned


document is Exhibit  PW-77/A which  lends full support to the version and


suggests that there was an incident of shooting in the Red Fort.  DD Entry


No.   19A   dated   22.12.2000   made   at   Police   Station   Kotwali   supports   this


version  of  lady Constable  Harvir   Kaur  (PW-77),  which  suggests  that   she


had flashed a wireless message about some persons having fled towards


the Ring Road after resorting to firing inside the Red Fort.  The evidence of


Head Constable Virender Kumar (PW-15) is also there to prove the report


in  this regard  vide  Exhibit  PW-15/B.   It  must be  remembered  that  Police


Control Room had received the calls of similar nature at 9.47 pm and two


calls   at   9.50   pm   vide   Exhibits   PW-42/A,   PW-95/A   and   PW-43/A,   which


support the version of the prosecution about the incident.  The evidence of


Constable Indu Bala, PCR (PW-43) about having received a telephone call


from   one  Karan   Mohan,  the   evidence  of  Col.  A.  Mohan  (PW-51)   that  he


was informed by the Commanding Officer, 7th  Rajputana, Delhi that some


civilians had entered Red Fort and the evidence of Constable Harvir Kaur,


PCR   (PW-77)   that   she   received   information   from   Major   Manish   Nagpal


(PW-126)  from  telephone  No. 3278234  about some  persons  having fled,


as also the  evidence of Head Constable  Harbans, PCR  (PW-95) that  he


had received a telephone call from Col. Mohan (PW-51) by telephone No.


5693227 stating that his Jawan posted at Red Fort was attacked, supports


the version that there was incident of shoot out and it could not be merely


                                              24



dismissed as an internal brawl.    This is apart from the evidence of other


police witnesses like SHO Roop Lal (PW-234) who had reached the spot


almost   immediately   after   receiving   the   wireless   message   and   who


confirmed   the   presence   of   S.I.   Rajinder   Singh   (PW-137)   and   Capt.   S.P.


Patwardhan (PW-189) on the spot.   The senior officers of the police had


also   reached   the   spot   and   their   evidence   only   confirms   the   dastardly


incident of shoot out.  There is enormous documentary evidence in shape


of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW-


152/B,   Exhibit   PW-152/F   and   DD   No.   22A,   which   confirms   that   such


incident had happened.   There is other piece of voluminous documentary


evidence about seizure of blood sample (Exhibit PW-123/B), seizure from


the   spots   (Exhibit   PW-122/B),   seizure   of   blood   stained   clothes   (Exhibit


PW-114/A),   Exhibit   PW-123/A,   Exhibit   PW-122/A,   seizure   of   magazine,


live   cartridges   and   empties   (Exhibit   PW-189/C),   Exhibit   PW-115/A   to   37


(37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope


and   cap   (Exhibit   PW-183/D),   seizure   of   various   articles   from   Red   Fort


(Exhibit   PW-196/A)   and   Exhibits   PW-230/A   &   230/B   etc.   to   suggest   that


the incident as, suggested by prosecution, did take place. It is also to be


seen that the post mortem was conducted on the three bodies by Shri K. L.


Sharma   (PW-187).     This   witness   has   opined   that   all   the   deceased   had


bullet injuries by sophisticated fire arms and the shots were filed at them


from   a   distant   range.     It   is   significant   that   the   doctor   was   not   cross-


                                            25



examined   to   the   effect   that   the   injury   could   have   been   caused   by   any


weapon which was available with the Army and not with the AK 56 rifles.


We are, therefore, not at all impressed by the argument that such incident


was nothing but a white wash given by Army to hide the incident of internal


brawl.     We   must   reject   the   whole   argument   as   too   ambitious.     We,


therefore, hold that the incident of shoot out did take place in which three


persons lost their lives.




19.    Ms. Jaiswal then argued that though the premises were thoroughly


searched   as   claimed   by   Sub.   Ashok   Kumar   (PW-115)   he   did   not   find   a


fired bullet.  She relied on the evidence of Hawaldar Dalbir Singh (PW-134)


who  also claimed that the premises were  being searched all through the


night.   Similarly, she referred to the evidence of S.I. Rajinder Singh (PW-


137),   Maj.   D.K.   Singh   (PW-144),   Capt.   S.P.   Patwardhan   (PW-189),   and


S.I.   Naresh   Kumar   (PW-217)   and   Inspector   Hawa   Singh   (PW-228).


According to her, all these witnesses had suggested that the search was


going on practically all through the night and that Capt. Patwardhan (PW-


189)   had   also   ordered   the   search   outside.     The   argument   is   clearly


incorrect.     Merely   because   all   these   witnesses   have   admitted   that   there


was search going on for the whole night, it does not mean that the incident


did   not   take   place.     We   have   already   pointed   out   that   number   of


incriminating articles were found, the most important of the same being the


                                               26



empties of the bullets fired by the intruders.   It is very significant that the


prosecution has been able to connect the bullets with the arms seized by


them.




20.      One   of   the   two   rifles   was   found   near   Vijay   Ghat   from   the   bushes


while   other   has   been   recovered   at   the   instance   of   appellant   on   26th


December,   2000.     The   prosecution   has   examined   three   witnesses   who


were the ballistic experts.  They were N.B. Bardhan (PW-202), A.Dey (PW-


206),   K.C.   Varshney   (PW-211).   N.B.   Bardhan   (PW-202)   has   specifically


stated that both the rifles were used in the sense that they were fired.   A.


Dey (PW-206) had the occasion to inspect the rifle recovered from Batla


House  as   Exhibit  PW-206/B.     The   ballistic   experts  report   was   proved   by


N.B.   Bardhan   (PW-202)   as   Exhibit   202/A.     He   clearly   opined   that   the


empties found inside the Red Fort had been fired  from  the rifles (Exhibit


PW-125/1) and (Exhibit PW-62/1).   He clearly deposed that he examined


39   sealed   parcels   sent   by   SHO,   Police   Station   Kotwali.     Out   of   these


parcels,   according   to   the   witness,   parcel   No.34   was   containing   AK   56


assault   rifle   so   also   parcel   No.36   in   same   parcel,   sub-parcel   No.20


contained   another   assault   rifle.     He   further   confirmed   in   para   (iii)   of   his


opinion   that   these   were   7.62   mm   assault   rifles   and   the   cartridges


contained in bearing mark C-1 in parcel No.3 which were marked as C-49,


C-52,C-56,C-58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm


                                             27



assault rifle cartridge cases marked as C-72,C-74,C-75 to C-80,C-82 to C-


84   and   C-86,   C-89,C-91,   C-94   to   C-96,   C-98,   C-102,   C-106   to   C-108


contained in parcel No.19A had been fired from 7.62 mm AK assault rifle


marked as W/1 which  was  recovered  from back side of Lal Quila on the


disclosure statement made by the appellant.  He further opined in para (iv)


of his opinion that the cartridge cases marked as C-2 contained in parcel


No.4, thirty four fired 7.62 mm assault rifle cartridge cases marked as C-32


to C-48, C-50, C-51, C-53 to C-55, C-57, C-59 to C-63 and C-65 to C-70


contained in parcel No.19, as also sixteen 7.62 mm assault rifle cartridge


cases marked as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93,


C-97,   C-99,   C-100,   C-101,   C-103   to   C-105   contained   in   parcel   no.19A


were fired from 7.62 mm assault rifle AK-56 marked as W/2 rifle recovered


from Vijay Ghat.  The report of the ballistic experts was proved as Exhibit


PW-202/C.   He duly proved and identified the cartridges which were  test


fired in the laboratory.  He also proved and identified the rifles examined by


him   and   the   magazines   along   with   the   other   live   cartridges   found   in   the


same.     There   was   hardly   any   cross-examination   worth   the   name   of   this


witness   and,   therefore,   it   is   clearly   established   that   the   cartridges   cases


found inside the Red Fort were fired from the two rifles which were found


outside the Red Fort.   This witness had also examined 11 empties of the


self-loading rifles used by the army men firing towards intruders and had


clearly   opined   that   those   empties   could   not   have   been   loaded   in   AK-56


                                               28



rifles examined by him.   We must note that one of these rifles i.e. Exhibit


PW-62/1 was recovered on the discovery made by the appellant.  We shall


come   to   the   merits   of   that   discovery   in   the   latter   part   of   our   judgment.


However,   at   this   stage,   it   is   sufficient   to   note   that   the   prosecution   had


thoroughly   proved   the   nexus   between   the   cartridge   cases   which   were


found   inside   the   Red   Fort   and   the   incident.     This   nexus   is   extremely


important   as   while   the   guns   were   found   outside   the   Red   Fort   the   fire


empties were found inside.  This clearly suggests that the incident of firing


took place inside the Red Fort while guns were abandoned by the intruders


outside the Red Fort.   This witness also examined the contents of parcel


No.34,   namely,   one   rifle   two   magazines,   live   cartridge,   knife   and   a


Bandolier.     This   was   again   an   assault   rifle   of   7.62   mm   which   we   have


already   considered   earlier.     However,   along   with   the   same,   as   per   the


discovery   memorandum   a   bandolier   (Exhibit   PW-202/3)   was   also   found.


The contents of the Bandolier were in parcel No.35.  It contained four hand


grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit


PW-50/5 to 8.  Very significantly four detonators had a slip affixed with the


help of a tag and it was written in Urdu  Khabardar. Grenade firing ke liye


tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for


firing. Pin should be taken out only when it is to be thrown).  The existence


of these bandoliers and the grenades and their recovery goes a long way


to prove that the theory propounded by the defence that the incident never


                                               29



took place inside the Red Fort at the instance of the intruders and it was an


internal   affair   of   the   Army   men   inside   has   to   be   rejected.     In   order   to


complete the narration, we must also refer to the evidence of Shri A. Dey


who had examined the rifle found at Batla House during the encounter in


which one Abu Shamal was killed.  That recovery is not seriously disputed


by Ms. Jaiswal.




21.     We have the evidence of Subedar Ashok Kumar (PW-115) about the


recovery of 37 empties cartridges and one live cartridge from the Red Fort


so   also   the   evidence   of   Hawaldar   Ramesh   Kakre   (PW-116)   about   the


empty   cartridges   being   found   near   sentry   post   where   Abudullah   Thakur


was killed.   One live cartridge also was recovered from there.   He further


deposed about the two empty cartridges found near M.T. Park where Uma


Shankar   was   killed.     He   deposed   that   these   empties   were   found     near


training store while seven empties were found near museum and the same


was   handed   over   to   Subedar   Ashok   Kumar   (PW-115).     Similar   is   the


evidence of S.P. Patwardhan (PW-189) about the place from where all this


spent   ammunition   was   recovered.     SHO   Roop   Lal   (PW-234)   and   Naik


Suresh   Kumar   (PW-122)   deposed   about   the   places   wherefrom   the


cartridge cases and the magazines were  found from inside the Red Fort.


All this supports the prosecution theory that the ghastly incident of firing did


take place at the instance of some outsiders inside the Red Fort.


                                           30



22.    This   takes   us   to   another   contention   of   Ms.   Jaiswal   that   in   fact


nothing was  found behind the Red Fort on the night of 23.12.2000.   The


learned Solicitor General, Shri Subramanium placed a very heavy reliance


on the recoveries made in the same night or early morning of next day i.e.


23.12.2000.     The   recoveries   of   that   day   are   extremely   important.     Ms.


Jaiswal    invited our attention in this behalf to the evidence of S.I. Sanjay


Kumar (PW-183) who claimed that in the morning of 23.12.2000 during the


search of the backside of the wall of the Red Fort abutting to the ring  road


he   found   some   currency   worth   Rs.1415/-   and   a   slip   contained   in   the


polythene bag.   It was a short slip on which a mobile number was written


being   9811278510.     According   to   witness   S.I.   Sanjay   Kumar   (PW-183),


SHO Roop Lal (PW-234) was called at the place and it was SHO Roop Lal


(PW-234)   who   pasted   the   telephone   number   slip   on   a   separate   paper.


There   was   currency   and   both   these   articles   were   seized   by   the   police.


This polythene bag was a transparent bag.   Besides the evidence of PW-


183, SI Sanjay Kumar, we have the evidence of S.I. Naresh Kumar (PW-


217) and SHO Roop Lal (PW-234).  The amount was separately kept vide


Exhibit 183/A while the slip was identified as Exhibit PW-183/C.  We have


seen the photographs of the polythene bag and the currency as also the


slip which were also proved.   Ms. Jaiswal  attacked this recovery and the


seizure   thereof   vehemently.     According   to   her   this   was   a   figment   of


imagination by the investigating agency and there was no question of any


                                          31



such recovery much less in the wee hours of 23.12.2000 at about 5-6 a.m.


She pointed out that the two witnesses S.I. Sanjay Kumar (PW-183) and


S.I.  Naresh Kumar (PW-217) were  clearly lying.    We have  examined the


evidence of all the three witnesses particularly in this behalf and we  find


the evidence to be thoroughly reliable.  Ms. Jaiswal could not bring to our


notice any material in the cross examination  of these witnesses so as to


render   the   evidence   uncreditworthy.     Some   efforts   were   also   made   by


relying   on   the   evidence   of   S.K.Chadha   (PW-125)   that   though   he   was   a


member  of   the  team,   he  reached  the  spot   from   where  the  recovery   was


made at 10 a.m. on 23.12.2000.   We fail to follow the significance of this


admission.  It is not as if all the officers must remain at one and the same


place if they are the members of a particular investigation team.  It may be


that S. K. Chadha might have reached the spot at 10 O'clock but that does


not   mean   recovery   team   consisting   of   other   members   did   not   effect


recovery   of   the   polythene   bag   containing   currency   and   the   slip.     Ms.


Jaiswal also urged that the premises were being searched thoroughly with


the help of dog squad and the search light and that it was not possible that


the search team would miss to notice the polythene bag and the currency


and the slip lying in it.  The argument is only mentioned for being rejected.


What the investigating team would be looking for are not the polythene bag


and   the   small   paper   but   the   weapons   and   the   men   who   handled   those


weapons.     A   small   transparent   polythene   bag   could   have   easily   been


                                              32



missed earlier or may not have attracted the attention of the investigating


agency.    We do  not  find anything  to  suspect  the  claim  that  the  recovery


was made at about 5-6 a.m.  We must note that this was the longest night


when the sun rise would also be late.   Under such circumstances, in that


dark   night   if   the   investigating   team,   after   the   microscopic   search,   took   a


few ours in recovering the small apparently insignificant polythene bag, it is


not   unnatural.     They   could   not   be   expected   to   find   polythene   bag


instantaneously or immediately.   Much time must have been taken in first


searching inside the Red Fort.   Therefore, if the polythene bag was found


at   about   5-6   a.m.   as   per   the   claim   of   the   prosecution   agency,   and   not


earlier,   there   is   nothing   uncreditworthy   in   the   claim.     We   are,   therefore,


convinced that  the polythene  bag and  the slip mentioning  the cell phone


number   were   actually   found   at   the   spot.     Ms.   Jaiswal   tried   to   find   some


chinks in the armour by suggesting that S.I. Sanjay Kumar's statement was


contrary to the statement of S.I. Naresh Kumar (PW-217).  We do not find


any discrepancy between the two statements.  Ms. Jaiswal also referred to


the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that


recovery   was   made   by   him   at   about   9   a.m.   in   the   morning.     What   the


witness meant was that it was he who came in the possession of the items


at 9 a.m.  There is nothing very significant in that assertion.  The evidence


of SHO Roop Lal (PW-234) was also referred to who claimed that after the


polythene   bag   was   produced   before   him   which   contained   currency   and


                                               33



paper slip, he sealed currency in the same polythene with the help of cloth


and   sealed   under   parcel   given   Exhibit   No.24.     There   is   nothing   to   dis-


believe  this claim after  all SHO Roop Lal (PW-234) was  the senior most


investigating officer and there is nothing insignificant if S.I. Sanjay Kumar


(PW-183) finding the polythene bag handed over the same to SHO Roop


Lal (PW-234).  A specific step has been taken by S.I. Sanjay Kumar (PW-


183)   by   getting   the   said   bag   photographed.     We   have   seen   the


photographs also.  It is true that no photograph was taken of the polythene


bag   containing   currency   note   and   the   slip   mentioning   the   telephone


number.     They   appear   to   be   in   separate   photographs   and   it   is   quite


understandable   as   immediately   after   the   finding   of   the   polythene   bag   it


must have been handled by S.I. Sanjay Kumar (PW-183).   It is only after


finding the slip and the telephone number mentioned thereon that by way


of abundant caution the photographs were taken.  Anxiety was to show the


slip   and   the   fact   that   there   was   a   telephone   number   written   on   the   slip.


Ms.   Jaiswal   then   argued   that   Hawa   Singh   (PW-228)   had   stated   that   he


was   told   about   the   slip   only   in   the   evening   though   he   joined   the


investigation   at   10.30   a.m.     We   do   not   find   anything   substantial   in   this


argument.     Ms.   Jaiswal   further   argued   that   there   is   contradiction   in   S.I.


Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharma's (PW-229)


statement  as to who  had recovered  the currency  and slip and that  there


was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183),


                                                34



S.K.   Chadha   (PW-125)   and   Inspector   Mohan   Chand   Sharma   (PW-229).


Further,  she  tried  to  say that  there was  contradiction  in the  statement  of


S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW-


217) on the question as to whether currency and slip was taken inside the


Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was


called   on   the   spot   of   recovery.     She   also   raised   objections   about   the


photographs that they were not taken in `as is where is position'.  We have


already applied our mind to this aspect and we are of the clear opinion that


the objections raised by the defence are absolutely insignificant.   What is


material   is   the   polythene   bag   being   found.     The   police   could   not   have


created   this   polythene   bag   containing   currency   and   slip   with   a   number


mentioned   on   it.     There   was   no   question   of   any   false   evidence   being


created   at   that   point   of   time   which   was   hardly   a   few   hours   after   the


shootout.  It is true that the photographs of the polythene bag are not and


could   be   on   `as   is   where   is   basis'.     We   have   already   given   the   reason


thereof.  We have no doubts in our mind and we confirm the finding of the


trial Court and the appellate Court that the said polythene bag containing


the   currency   notes   and   the   slip   on   which   the   cell   phone   number   was


mentioned,   was   actually   found   on   the   spot   which   spot   was   abutting   the


backside   wall   of   the   Red   Fort.     It   has   to   be   borne   in   mind   that   a   major


incident of shootout had occurred wherein three lives were lost.  The attack


was on the Red Fort which has emotional and historical  importance  in the


                                                35



Indian minds.   Large investigation team was busy investigating the whole


affair and, therefore, the police could not have produced out of the thin air


a small polythene bag containing currency and the slip.  The spot where it


was found is well described and was on the escape route of the intruders.


That   wall   from   inside   the   Red   Fort   has   hardly   any   height   though   it   is   of


about 15 to 20 feet from the ground on the other side.  We have seen the


proved photograph which suggests that from that spot one can easily land


on   the   extended   pipe   and   from   that   pipe   to   the   small   platform   and   from


there   to   the   ground.   The   polythene   bag   was   found   near   this   spot.


Therefore, we accept the finding by the trial Court and the appellate Court


that this polythene bag must have slipped from a person who scaled down


to the ground.   At the beginning of the  debate it was  made out as if the


said wall was insurmountable and that nobody could have jumped from the


height of about 50-60 feet.  Further on the close look at the evidence, the


photographs the hollowness of the claim of the defence was writ large.




23.     There   is   one   more   significant   circumstance   to   suggest   that   the


polythene bag must have been found where it was claimed to have been


found   by   the   investigating   agency   i.e.   the   finding   of   AK-56   rifle   from   a


nearby spot in the bushes.   We will  consider the merits of that discovery


which   was   at   the   instance   of   the   appellant   in   the   latter   part   of   our


judgment.  Suffice it to say at this stage that the polythene bag was found


                                            36



in   the   reasonable   proximity   of   the   spot   from   where   AK-56   rifle   was


recovered.




24.    Barely within 4-5 hours of the finding out the chit and the currency


notes,   the   investigating   agency   found   one   AK-56   rifle   with   seven   live


cartridges from a place near Vijay Ghat in the Ring Road behind the Red


Fort.  A DD entry to that effect vide Exhibit PW-81/A was made.  There is


evidence   in   the   shape   of   Exhibit   PW   78A   proved   by   PW-78   Head


Constable   Narender   Singh   which   is   a   Police   Control   Room   Form.     The


prosecution also examined Head Constable Upender Singh (PW-89).  The


evidence of Head Constable Satbir Singh (PW-81) proves the information


having been given to the PCR.   There was a sketch of recovery  Naksha


Mauka Baramadgi,  seizure of rifle, magazine and the live cartridges from


Vijay Ghat is evidenced in Exhibit PW-62/B and also Exhibit 84/XIV.  While


dealing with the evidence of the ballistic expert we have already shown the


connection   between   the   empty   cartridges   and   this   rifle.     This   rifle   was


marked as W/1 in the ballistic experts report and was identified as Exhibit


PW-125/1.  There is nothing to belie this discovery which is well supported


by   the   evidence   of   Head   Constable   Narender   Singh   (PW-78),   Head


Constable Satbir Singh (PW-81) and Head Constable Upender Singh (PW-


89).   In fact Head Constable Upender Singh was the one who had found


the   said   rifle.     Other   relevant   witness   who   corroborated   this   version   is


                                            37



Constable   Ranbir   Singh   (PW-35)   who   had   made   the   DD   entry   and   had


received the message from police Control Room.  The other witnesses are


SI Ram Chander (PW-62) who presided over the recovery and SHO Roop


Lal (PW-234) who  was  also present at the time of recovery and saw the


rifle.     The   other   witnesses,   namely,   SI   Sanjay   Kumar   (PW-183)   and   SI


Naresh Kumar (PW-217) have provided the corroborating evidence to this


recovery.  The whole recovery is proved by the prosecution.




25.    However,   even   before   that   the   investigating   agency   started


investigation   about   the   cell   number   which   was   found   written   in   the   slip


which was found in the morning at about 5-6 a.m. this cell number was to


provide   a   ray   of   light   to   the   investigating   agency   which   had   no   clue


whatsoever   till   then   about   the   perpetrators   of   the   crime.   Ultimately,   the


investigating   agency   on   the   basis   of   that   number   being   9811278510   not


only unearthed the conspiracy but also reached the main players including


the present appellant.




26.    The   investigation   suggests   that   the   said   mobile   number   slip   was


assigned   to   Inspector   Mohan   Chand   Sharma   (PW-229).     This   was   a


mobile number on the basis of the cash card.  At the relevant point of time,


the cash card implied a SIM card, a SIM card loaded with  prepaid value


and such SIM card were readily available in the open market.  There was


no necessity of registering with the service provide for obtaining a mobile


                                               38



connection through cash card.  All that was required was activation by the


service provider without which the cash card or the SIM card as the case


may be could not be used.




27.     It   has  come  in   the  evidence  that   the   active   mobile   phone   has  two


components   i.e.   the   mobile   instrument   and   the   SIM   card.     Every   mobile


instrument   has   a   unique   identification   number,   namely,   Instrument


Manufactured  Equipment Identity, for short, IMEI number.  Such SIM card


could   be  provided  by the   service  providers  either  with  cash  card   or  post


paid card to the subscriber and once this SIM card is activated the number


is   generated   which   is   commonly   known   as   mobile   number.     The   mobile


service   is   operated   through   a   main   server   computer   called   mobile


switching centre which handles and records each and every movement of


an active mobile phone like day and time of the call, duration of the call,


calling and the called number, location of the subscriber during active call


and   the   unique   IMEI   number   of   the   instrument   used   by   the   subscriber


during   an   active   call.     This   mobile   switching   centre   manages   all   this


through   various   sub-systems   or   sub-stations   and   finally   with   the   help   of


telephone towers.  These towers are actually Base Trans-receiver Stations


also   known   as   BTS.     Such   BTS   covers   a   set   of   cells   each   of   them


identified   by   a   unique   cell   ID.     A   mobile   continuously   selects   a   cell   and


exchanges   data   and   signaling   traffic   with   the   corresponding   BTC.


                                             39



Therefore,   through   a   cell   ID   the   location   of   the   active   mobile   instrument


can be approximated.




28.    As  per the evidence  of Inspector Mohan Chand Sharma (PW-229)


he collected the call details of the said mobile number which was received


in a computer installed in his office at Lodhi Road.   He found that mobile


phone number 9811278510 was constantly used from Zakir Nagar and at


that   time   the   IMEI   number   of   the   cell   phone   instrument   used   was


445199440940240.   It was found that the said number was also used for


making calls to Pakistan.   However, from 11.12.2000, the IMEI number of


the   mobile   phone   No.9811278510   was   changed   to   IMEI


No.449173405451240.     It   transpired   from   the   evidence   that   this   IMEI


number that the mobile phone number 9811278510 with the changed IMEI


number   had   also   made   calls   to   landlines   which   were   discovered   to   be


belonging   to   BBC,   Srinagar   and   BBC,   Delhi.     These   calls   were   made


almost immediately after the incident of shootout.   This number was also


used for making calls to Pakistan and pager number at Srinagar 01949696


and   0116315904.     The   latter   number   was   found   to   be   in   the   name   of


Mohd. Danish Khan at 18C, Gaffur Nagar i.e. the computer centre run by


the accused appellant.  It was also found that from this number calls were


made to 0113969561 which was found to have been installed at the shop


of   one   Sher   Zaman   who   was   allegedly   an   absconding   accused   and   the


                                               40



Hawala   operator.     The   analysis   of   call   details   of   9811278510   suggested


that   the  said  mobile   number  was  used   in  two  mobile  instruments   having


the aforementioned IMEI numbers.  This was done in case of cell number


9811278510 with IMEI number 445199440940240 only between 26.10.200


to         14.11.2000         and         recovered         instrument         having         IMEI


No.4491731405451240   between   11.12.2000   to   23.12.2000.     While


scanning   earlier  IMEI   No.445199440940240,  it  was   found  that   one   other


mobile   number   9811242154   was   found   to   have   been   used   in   the   said


instrument.     This   instrument   used   mobile   number   9811242154   between


22.7.2000   to   8.11.2000.     From   this,   Shri   Subramanium,   learned   Solicitor


General urged that there were two mobile numbers, namely, 9811278510


and   9811242154   which   were   used   and   the   two   IMEI   numbers   namely


445199440940240 and 449173405451240.   A pattern showed  the use of


the third number which was 0116315904, the number of computer centre.


Shri Subramanium learned Solicitor General submitted the following  data


for our perusal:-




                "011-6315904- Computer Center


                Found connected to Mobile No.9811278510:-


                (1) 14.12.2000 at 125435 hrs




           Found connected to Mobile No.9811242154:-


                (1) 31.10.2000 at 211943 hrs


                                         41



              (2) 08.11.2000 at 082418 hrs


              (3) 10.11.2000 at 144727 hrs


              (4) 19.11.2000 at 163328 hrs




        Found connected to Mobile No.9811242154 :-


              (1) 09.09.2000 at 113619 hrs


              (2) 08.09.2000 at 113753 hrs


              (3) 02.10.2000 at 103130 hrs."


   Learned   Solicitor   General   provided   the   data   regarding   the   telephone


connection made by above number with the telephone connection of one


Attruddin who was a proclaimed offender in Kashmir.




 29.    It is also apparent, as argued by the learned Solicitor General that


number  9811242154  was  constantly in  touch  with  two numbers,  namely,


0116315904 which was installed at 18C Gaffur Nagar computer centre and


011 2720223 installed in the name of Farzana, sister of Rehmana, the wife


of accused at 308A, Janta Flats, Ghazipur.  This number 9811242154 had


thus   a   definite   connection   with   mobile   No.9811278510   and   the   two


instruments   bearing   IMEI   numbers   mentioned   earlier   with   each   other.


Therefore,  these  two points,  namely,  the  computer  centre and   the flat  at


308A, Janta Flat, Ghazipur were  kept under observation.   Relying on the


evidence of Inspector  Mohan Chand Sharma (PW-229), learned  Solicitor


General argued that calls made from No.9811242154 were between Zakir


                                             42



Nagar and Ghazipur.   It was found that the location of the phone used to


be at Ghazipur when the calls were made to that number from Zakir Nagar


and the location of phone used to be at Zakir nagar when the calls were


made from Ghazipur.  Significantly enough, the `Knowledge Plus' computer


centre remained closed for two  days after the incident at Red Fort.   The


investigating agency came to know about the ownership of the `Knowledge


Plus' computer center and it was established that the accused Mohd. Arif


@   Ashfaq   who   was   a   resident   of   Ghazipur,   owned   this   centre.     All   this


evidence   by   Inspector   Mohan   Chand   Sharma   (PW-229)   went


unchallenged.  The other witness who had produced the whole record was


Rajiv   Pandit   (PW-98)   who   proved   the   call   record   and   the   report   to   the


queries   made   to   him   by   the   investigating   officer.   Exhibit   PW-98/A   is   the


information in respect of the mobile number 9811278510 which was active


from 26.10.2000 to 23.12.2000.  While Exhibit PW-198/D is the information


stating that IMEI number 449173405451240 was used by mobile number


9811278510 and that IMEI number 445199440940240 was  used by both


mobile numbers, namely, 9811278510 and 9811242154.   There is hardly


any cross-examination of this witness Rajiv Pandit (PW-198) to dis-believe


his version.   All this goes to suggest the definite connection between two


IMEI numbers and the two mobile numbers named above.  It is needless to


mention that this analysis painstakingly made by Inspector Mohan Chand


Sharma   (PW-229)   led   the   investigating   team   to   zero   on   the   accused


                                           43



appellant in the night of 25.12.2000.




30.    It   has   come   in   the   evidence   of   SI   Omwati   (PW-68)   that   she   was


working as duty officer at police station special cell on 25.12.2000 and on


that day at about 9.05 a.m. Inspector Mohan Chand Sharma (PW-229) had


recorded his departure in connection with the case No.688 of 2000 along


with some other staff.  It has also come in the evidence that on 25.12.2000


at about 9.45 p.m. a DD entry was made at the police station special cell


Ashok Vihar that Inspector Mohan Chand Sharma (PW-229) informed on


telephone that a suspect by name of Ashfaq Ahmed was about to come at


the house number 308A, DDA flats, Ghazipur and made a request to send


some officers.  There is another entry bearing a DD No.10 to the effect that


Inspector Ved Prakash (PW-173) along with R.S. Bhasin (PW-168), SI Zile


Singh   (PW-148)   ,   SI   Upender   Singh   (PW-89),   SI   Manoj   Dixit,   WSI


Jayshree   and   S.I.   Omwati   (PW-68),   Constable   Mahipal   Singh   and   Head


Constable Rameshwar  (PW-166) having left the police special cell Ashok


Vihar in pursuance  of the message sent by Mohan Chand Sharma (PW-


229).     This   has   been   proved   in   the   evidence   of   Inspector   Ved   Prakash


(PW-173).     It   has   also   come   in   the   evidence   of   Mohan   Chand   Sharma


(PW-229) that he along with his team was at Ghazipur on 25.12.2000 while


SI Daya Sagar was deputed at the knowledge plus computer centre along


with the staff.   He was  informed at about 9.40 p.m. on his mobile phone


                                             44



that Mohd. Arif @ Ashfaq was seen at Batla House and may have left for


Ghazipur.     He   also   informed   ACP   Rajbir   about   it.     ACP   Rajbir   Singh,


therefore, fixed 11 p.m. as the time for meeting him at the red light where


he   reached   along   with   his   staff.     This   has   been   corroborated   by   S.I.


Omwati   (PW-68)   who   speaks   about   DD   entry   No.10   recorded   at   special


cell at about 10.15 to the effect that certain special officers had left under


the   supervision   of   ACP   Rajbir   Singh.     As   per   the   evidence   of   Inspector


Mohan   Chand   Sharma   (PW-229)   that   a   raid   was   conducted   by   them   at


11.15   p.m.   at   flat   No.308A,   Ghazipur   and   at   that   time   three   ladies   were


present.   There it was decided that Ved Prakash would go inside the flat


and the remaining staff would keep a watch from outside.   This has been


corroborated by Inspector Ved Prakash (PW-173).   It was at about 12.45


a.m.   that   Mohd.   Arif   @   Ashfaq   (appellant   herein)   came   to   the   flat   of


Ghazipur and knocked at the gate where he was overpowered by the staff


present.   At that time one pistol 7.63 mouser and six live cartridges were


recovered from his possession.  He did not have any licence for this pistol.


A memo of the seizure is Exhibit PW-148/B proved by sub-Inspector ZIle


Singh (PW-148).  The entry in the Malkhana register is 32/XI.  Inspctor Ved


Prakash   prepared   a   rukka   which   is   Exhibit   (PW-173/A)   and   a   DD   entry


bearing number 9A was made at 2.35 a.m. on 26.12.2000 at police station


Kalyan   Puri.     A   separate   FIR   number   419/2000   under   Section   25,   Arms


Act was also registered at police station Kalyan Puri, Delhi.  The FIR is to


                                              45



be found vide Exhibit PW-136B.  The time of occurrence shown in the first


FIR   is   12.45   a.m.   on   26.12.2000.     This   pistol   was   identified   by   all   the


recovery   witnesses   and   experts   in   the   Court   while   its   capability   of   being


fired   has   been   proved   by  Shri   K.C.   Varshney   (PW-211)   the   FSL   expert.


The pistol is Exhibit PW-148/1.   At the time of its recovery, the pistol had


five cartridges in the magazines and one cartridge in the chamber of the


pistol.   All this has been deposed by SI Zile Singh (PW-148).   It was this


witness Zile Singh (PW-148) who identified appellant in the Court as also


proved the recovery of the pistol from his possession.   It was at this time


after his apprehension that the accused disclosed that his associate Abu


Shamal   @   Faizal   was   staying   at   his   hide   out   at   G-73,   First   Floor,   Batla


House, Okhala.  This has come in the evidence of Inspector Mohan Chand


Sharma   (PW-229).     We   have   absolutely   no   reason   to   dis-believe   this


evidence of apprehension of the accused by the police team which is also


supported   by   documentary   evidence.     We   have   also   no   doubt   that   the


apprehension  of the accused was  possible only because of the scientific


investigation done by PW-229, Inspector MC Sharma.




31.     We now consider the argument of the appellant that on the basis of


the recovery of the piece of paper having Mobile phone No. 9811278510,


the police did not actually reach the appellant as was their claim.   It was


argued   by   Ms.   Jaiswal,   learned   counsel   appearing   on   behalf   of   the


                                           46



appellant   that   Inspector   S.K.   Sand   (PW-230)   himself   had   claimed   in   his


Examination-in-Chief that he had deputed someone to contact the mobile


phone company ESSAR for the call details of the said mobile number on


13.2.2001 and obtained the same Vide Exhibit PW-198/B-1 to 3.   On this


basis,   the   learned   counsel   claimed   that   the   details   of   the   phone


conversation on this number as also on other mobile number 9811242154


could   not   have   been   known   nor   could   their   connection   with   telephone


number  2720223  at the  house of  the  appellant  in Ghazipur  or telephone


number 6315904 at the Computer Centre at Gaffur Nagar be established.


In  this behalf,  it  was  claimed  that  this  evidence is  directly counter  to the


evidence   of  Inspector  Mohan   Chand  Sharma   (PW-229)  who   claimed   the


knowledge   about   interconnection   between   23rd  to   25th  December,   2001.


The   learned   Solicitor   General,   however,   argued   that   the   evidence   of


Inspector   Mohan   Chand   Sharma   (PW-229)   could   not   be   faulted   as   he


claimed  to   have   immediately   collected  all  the  call  details  of   the   said  two


mobile phone numbers from the computer installed in their office at Lodhi


Road.     It   was   on   the   basis   of   the   information   received   in   computer


regarding mobile No. 9811278510 that he established its connection with


mobile   No.   9811242154   on   the   basis   of   IMEI   number.     The   claim   of


Inspector   Mohan   Chand   Sharma   (PW-229)   that   he   had   collected   the


information from his computer earlier to 25.12.2010 was not controverted


nor do we find any cross-examination to that effect.  It is true that Inspector


                                            47



S.K. Sand (PW-230), the Investigating Officer, had sought the information


on   13.2.2001,   but   that   does   not   mean   that   Inspector   Mohan   Chand


Sharma (PW-229) did not have the information earlier.  There was no other


way otherwise to apprehend the appellant.  It may be that the Investigating


Officer decided to obtain the details in writing seeking official information


from the original company and that is why his seeking that information on


13.2.2001   does   not   affect   the   prosecution   case.     In   our   view,   the


contention raised by the learned Solicitor General is correct and has to be


accepted.  It is to be noted that the defence has not refuted the claim of the


prosecution   that   telephone   No.   2720223   which   was   in   the   name   of


appellant's Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A,


Ghazipur,   where   he   was   residing   alongwith   his   wife   Rehmana   Yusuf


Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1).   It is


also   not   the   claim   of   the   defence   that   telephone   No.   6315904   was   not


installed at the computer centre `Knowledge Plus' which the appellant was


running   alongwith   other   person   Faizal   Mohd.   Khan   (PW056).     We,


therefore, reject the argument of Ms. Jaiswal, learned counsel that on the


basis of the chit, the investigating agency could not and did not reach the


appellant on the night of 25.12.2000.




32.     The other argument raised by Ms. Jaiswal is that in fact there was no


evidence to show that the appellant in fact did have any mobile phone with


                                              48



him  when   he  was   apprehended.  Secondly,  it  was  argued   that  it   was   not


proved that the appellant ever owned a mobile phone at all. The learned


counsel pointed out that when the appellant was apprehended, though he


was   searched,   all   that   the   raiding   party   recovered   was   a   pistol   and   that


there   is   no   mention   of   the   recovery   of   Motorola   mobile   phone   bearing


number 9811278510.  The learned counsel was at pains to point out that it


was during his second search after about six hours that the mobile phone


was   shown   to   have   been   recovered.     This,   according   to   the   learned


counsel,   is   nothing   but   a   concoction.     Ms.   Jaiswal   also   pointed   out   that


there was a substantial delay in formally arresting the appellant and also


recovering other articles from his person.




33.     We   shall   consider   the   second   contention   first.   In   this   behalf,   the


learned   Solicitor   General   relied   on   the   evidence   of   Faizal   Mohd.   Khan


(PW-56), who  was  also a tenant in the house of Nain Singh (PW-20).   It


has come in his evidence that the appellant was also residing as a tenant


for some time before this incident took place.  He has also pointed out that


one Adam Malik (PW-31) used to reside in the house of Nain Singh (PW-


20)  and it  was  he who  had  brought the  appellant with  him in May,  2000


and got him one room in that house.  As per the evidence of Faizal Mohd.


Khan (PW-56), it was Azam Malik (PW-31) who had introduced him to the


appellant.  He was the one alongwith whom the appellant had then opened


                                                49



a computer centre by the name of `Knowledge Plus' at 18-C, Gaffur Nagar


and   for   opening   that   centre,   he   had   invested   Rs.70,000/-   while   the


appellant had invested 1,70,000/- for purchasing computer from one Khalid


Bhai.     This   part   of   the   evidence   is   also   admitted   by   the   appellant   in   his


statement   under   Section   313   Cr.P.C.     He,   however,   claimed   in   that


statement   that   he   had   paid   lesser   amount.     Faizal   Mohd.   Khan   (PW-56)


needed a telephone for their computer centre but since they did not have


ration   card,   he   (PW-56)   spoke   to   his   cousin   Danish   Mohd.   Khan   and


requested him to get one telephone installed at their computer centre with


the help of his identity card and that is how Danish Mohd. Khan had got


installed a telephone in his own  name at the `Knowledge Plus' computer


centre.   The learned Solicitor General pointed out that this evidence has


remained   unchallenged.     It   is   further   argued   that   the   evidence   of   Faizal


Mohd.   Khan   (PW-56)   establishes   that   the   appellant   had   a   mobile   phone


also.     It   is   significant   that   admittedly,   this   witness   was   a   partner   of   the


appellant   in   the   computer   centre.     The   claim   of   this   witness   that   the


appellant   had   a   mobile   phone,   was   not   even   challenged   during   his


examination.    From  this the  learned Solicitor General argued  and,  in our


opinion, rightly, that the appellant used to have a mobile phone with him.


The   learned   Solicitor   General   further   pointed   out   that   this   piece   of


evidence   is   then   corroborated   by   the   evidence   of   Aamir   Irfan   Mansoori


(PW-37),  who  was  also  a tenant  with  the  appellant  in the  house  of Nain


                                                50



Singh (PW-20).   He had also deposed that the appellant used to have a


mobile   phone.     The   Solicitor   General   pointed   out   that   there   was   no


challenge   to   the   evidence   of   Aamir   Irfan   Mansoori   (PW-37),   particularly,


about his assertion that the appellant did have a mobile phone.  From this,


the learned Solicitor General argued that it is an established position that


in   the   past,   the   appellant   used   to   have   a   mobile   phone.     Similar   is   the


evidence of Rashid Ali (PW-232), who was also a resident in the house of


Nain Singh (PW-20).  It is significant to note that this witness claimed that


on   8.12.2000,   he   was   taken   by   the   appellant   for   an   Iftar   party   in   the


evening.     However,   there   the   appellant   got   married   to   Rehmana   on


8.12.2000   in   the   evening.     This   shows   the   proximity   of   the   witness.     He


further deposed that the appellant had a mobile phone.  Even this witness


was not cross-examined regarding the availability of the mobile phone with


the appellant.  We have no reason to disbelieve the above three witnesses


and, therefore, we hold that it was established by the prosecution that the


appellant used to have a mobile phone.




34.     Once   this   position   is   clear,   then   it   has   to   be   seen   as   to   why   the


mobile phone was not taken in possession by the raiding party when they


actually   apprehended   the   appellant   and   whether   at  that   time   he   had   the


mobile phone at all.  The learned Solicitor General argued that the raiding


party had gone to Flat No. 308-A, Ghazipur to nab a suspected terrorist.


                                             51



This   was   on   the   basis   of   the   information   gathered   by   Inspector   Mohan


Chand Sharma (PW-229).   The learned Solicitor General argued that the


raiding party had to ensure that once they nabbed the terrorist, he should


be disarmed first.  This was necessary for the safety of the public at large


and,   therefore,   when   the   raiding   party   found   and   nabbed   the   appellant,


they first removed his fire arm and started digging further information about


any   other   terrorist   who   was   the   partner   of   the   appellant   and,   therefore,


when   the   appellant   disclosed   about   the   other   hide-out   at   G-73,   Muradi


Road, Batla House, in order to avoid any further loss of life and harm to the


general   public  and   also  for  preventing   the  said  suspect  from   fleeing,   the


raiding   party   took   the   appellant   to   the   Batla   House   almost   immediately.


The   learned   Solicitor   General,   therefore,   argued   that   considering   the


seriousness   of   the   situation   and   further   considering   the   element   of   very


little time at the disposal of the raiding party, the appellant was immediately


taken to Batla House, where a full fledged encounter took place resulting in


death   of   Abu   Shamal,   another   terrorist   as   also   in   recovery   of   lethal


weapons   like   an   AK-47   rifle   and   hand   grenades.     The   learned   Solicitor


General   explained   the   so-called   delay   caused   in   recovery   of   the   mobile


phone   from   the   appellant.     He   also   argued   that   the   expediency   of   the


matter required stopping these terrorists from inflicting further harm to the


innocent society and, therefore, investigating agency had to move with the


break-neck speed which they actually did instead of wasting their time in


                                              52



writing   the   Panchnamas   of   discovery   and   recovery   etc.     The   learned


Solicitor   General   further   argued   that   the   very   fact   that   there   was   an


encounter   in   Batla   House,   the   location   of   which   was   known   only   to   the


appellant,   establishes   the   necessity   for   quick   reaction   on   the   part   of   the


investigating agency.   In our opinion, this explanation is quite satisfactory


to   reject   the   argument   raised   by   learned   defence   counsel.     We   have,


therefore,  no hesitation to hold that after the appellant was  apprehended


on the night of 25.12.2000, the investigating agency recovered not only the


pistol, but a mobile phone bearing number 9811278510 which was with the


appellant.




35.     Ms.   Jaiswal   also   argued   that   the   investigating   agency   had   seized


only the mobile instrument bearing No.9811278510  but not the SIM card


and  that  was  an extremely suspicious  circumstance.    It is to be noted in


this  behalf  that   the  instrument  was  seized   in  the  morning  of  26.12.2000.


The   analysis   of   the   telephone   calls   shows   that   the   above   mentioned


number did not work after 16.50 hours on 23.12.2000.   Thus this number


was   inactive   on   24th  and   25th  December.     Ms.   Jaiswal   argued   that   the


phone might have  been sold or at least  would  have  changed  hands and


did   not   directly   connect   the   appellant   with   the   call   made   to   the   BBC


correspondent immediately after the attack.  In this behalf, learned Solicitor


General relied on the evidence of Rajiv Pandit (PW-198).   He pointed out


                                             53



that the record regarding the SIM No 0006680375 did not exist.   Learned


Solicitor   General   further   argued   that   the   letter   dated   20.2.2001   of   the


police Exhibit PW-114/XV clearly showed that the said SIM was activated


and an application in that behalf also made before the Court to un-seal the


case   property   so   as   to   examine   whether   the   SIM   card   number   was


correctly noted in the seizure memo Exhibit PW-59/XIV or not.  It has to be


seen   that   the   number   of   cash   card   and   the   one   found   on   the   SIM   vide


Exhibit   PW-62/XIV   were   the   same.     The   learned   Solicitor   General,


therefore,   argued   that   the   SIM   card   found   in   the   telephone   was   not


activated   and,   therefore,   there   was   no   record   available.     However,


according to the Solicitor General, it has been proved that the instrument


number   4491713405451240   was   on   the   cell   phone   recovered   from   the


appellant.     In   that   behalf,   reliance   was   placed   on   the   evidence   of   S.I.


Harender  Singh (PW-194), SI Zile  Singh  (PW-148) and Inspector  Mohan


Chand   Sharma   (PW-229).     From   this,   according   to   the   learned   Solicitor


General,  the prosecution  had established  that but  for the mobile  number


which   was   collected   on   the   basis   of   the   chit,   it   was   not   possible   to


apprehend   the   appellant   at   all.     He   further   argued   that   the   very   same


instrument   which   has   been   recovered   from   the   appellant   was   used   for


calling   BBC   correspondent   immediately   after   the   attack   and   it   was   also


argued that the location of the instrument at that time was in the vicinity of


Red   Fort.     There   is   considerable   force   in   the   submission   made   by   the


                                             54



learned   Solicitor   General.     The   depositions   of   the   prosecution   witnesses


mentioned above, in our opinion, leave no doubt whatsoever in our minds


that mobile number 9811278510 was used in the instrument having IMEI


No.449173405451240 immediately after the attack.




36.    This   takes   us   to   the   telephonic   conversation   in   which   the   two


aforementioned   cell   phones   with   two   IMEI   numbers   were   used   which


create a complete link between the appellant and the crime.  In this behalf


the first witness is Altaf Hussain (PW-39) who was the BBC correspondent


based   in   Srinagar   and   who   claimed   that   sometimes   the   militant


organizations   used   to   give   him   information   claiming   responsibility   of   any


terrorist   acts.     On   22.12.2000   he   had   received   a   call   on   his   land   line


No.2452918.   He deposed that the caller told him that the incident inside


the Red Fort had been carried out by them and claimed in vernacular `do


daane daal diye hain'.   The caller also claimed himself to be belonging to


Lashkar e Toiba.   When he asked as to what it meant by  Do daane daal


diye hain, he was told by the caller that it was a Fidayeen attack and that


they had attacked Army personnel.   On this, the witness told the caller to


contact   Delhi   BBC   office   and   also   gave   the   telephone   number   of   BBC,


Delhi to him.   The  wife  of this witness  Ms. Naznin Bandey (PW-40) also


deposed that Mr. Altaf Hussain was her husband and the aforementioned


telephone   number   2452918   was   in   her   name   and   the   same   was   being


                                             55



used by her husband also.   This call was made almost immediately after


the attack which took place at about 9.25 p.m.  His further evidence is that


one   Ayanjit   Singh   (PW-41)   was   a   BBC   correspondent   in   Delhi.   Ayanjit


Singh (PW-41) was having a telephone number 011 3355751 on which he


received a telephone  call between  9-9:30 p.m.  and someone  claiming to


be belonging to Lashkar-e-Toiba told him that they had attacked the Red


Fort.     When   the   witness   asked   as   to   from   where   he   was   speaking,   the


witness was told by the caller that he was calling from inside the Red Fort.


He also told that they had killed two persons.  The caller refused to identify


himself.   This call remained for 2-3 minutes.  Shri Satish Jacob (PW-150)


corroborated   this   version   of   Ayanjit   Singh   (PW-41)   to   the   effect   that   on


22.12.2000 about 9 p.m. Ayanjit Singh who was a Desk Editor in the Delhi


office had received relevant call and had informed his colleagues also.  He


also confirmed that Altaf Hussain (PW-39) was the BBC correspondent in


Srinagar.   These call records were  searched by the investigating agency


and   were   duly   proved   by   the   prosecution.     It   has   already   come   in   the


earlier part of the judgment that it was on 13.2.2001 that request for supply


of information regarding mobile number 9811278510 was made vide letter


Exhibit  PW-230/K.    By another  letter  Exhibit  PW-230/N  dated 27.1.2001,


General Manager, MTNL was requested to give details of the subscribers


of the telephone No. 011  3355751 which  was  the number of BBC Delhi,


telephone   No.   2720223   belonging   to   Farzana   Faruqui   and   installed   at


                                             56



Ghazipur   at   the   residence   of   appellant   and   telephone   No.6315904


belonging to Danish Mohd. Khan which was fixed at computer centre.  The


prosecution   proved   that   letter   and   the   records   through   the   witnesses.     It


has   come   in   the   evidence   that   on   14.2.2001,   the   call   details   of


9811278510 were furnished along with cell ID list by way of letter Exhibit


PW-198/E and those call details were  also duly proved vide Exhibit PW-


198/B1-3.  A further letter dated 20.2.2001 was proved by the prosecution


to have been written to the General Manager,  ESSAR  cell phone for the


information   in   respect   of   the   aforesaid   mobile   instrument   bearing   IMEI


No.445199440940240   and   44917340545120.     In   this   letter,   it   was


specifically   asked   as   to   against   which   mobile   number   the   speed   card


No.0006680375   was  activated.     Rajiv  Pandit   (PW-198)  deposed  that  the


details   were   already   furnished   on   14.2.2001   in   respect   of   9811278510


while the speed card details of the No.0006680375 were not available in


the records.   The relevant documents are Exhibit PW-198/E in respect of


cell   No.9811242154.     The   evidence   of   Rajiv   Pandit   went   almost


unchallenged.          His   assertion   that   he,   as   a   General   Manager


(Administration),   of   ESSAR   Cell   Phones   had   provided   the   relevant


information of call details to Inspector Surender Sand in respect of mobile


No.9811278510,   has   gone   unchallenged.     From   his   evidence,   it   stands


proved   that   calls   were   made   to   BBC   correspondent   from   cell


No.9811278510   on 22.12.2000  at 9.27  p.m. and  two  calls were  made to


                                             57



BBC, Delhi No.3355751 at 9.50 p.m.   He also established that when  the


call   was   made,   the   location   of   caller,   as   per   mobile   details,   was   at


Kashmere Gate whereas from the second call, the location was Chandni


Chowk.     This   evidence   is   also   corroborated   by   the   evidence   of   Mohan


Chand   Sharma   (PW-229)   who   located   the   two  IMEI   numbers   mentioned


above and he also confirmed that as per the information collected by him


two   calls   were   made   to   BBC   offices   one   in   Srinagar   and   one   in   Delhi.


There is absolutely nothing to dis-believe this version and, therefore, it is


clear   that   telephone   No.9811278510   was   used   on   the   relevant   date   on


22.12.2000 for claiming the responsibility of the attack in Red Fort.  When


call   was   made   the   IMEI   number   was   449173405451240.     This   situation


almost clinches the issue.




37.    The corroboration to the fact that a message was received by BBC


Delhi   telephonically   regarding   the   attack   on   Red   Fort   on   22.12.2000   at


about 9 O' Clock at night is to be found in the evidence of Satish Jacob


(PW-150) who proved Exhibit PW-150/B.  There is no cross examination of


the   witness   on   this   aspect.     The   prosecution,   therefore,   is   successful   in


establishing that the cell phone No.9811278510 was used for making the


calls to Srinagar, BBC correspondent as also to the BBC correspondent in


Delhi.  In these calls, the caller who was handling that cell phone not only


informed   about   the   attack   on   the   Red   Fort   but   also   owned   the


                                            58



responsibility   of   Lashkar-e-Toiba   therein.     These   call   details   have   been


proved   by   Rajiv   Pandit   (PW-198)   whose   evidence   we   have   already


referred to earlier, vide Exhibit PW 198/B1 to B3.  The inter se connection


in between  this cell phone and cell phone No.9811242154 is also clearly


established   by   the   witness   Rajiv   Pandit   (PW-198)   on   the   basis   of   IMEI


number used in that cell phone.   He had also established that these calls


to the BBC were made from the vicinity of the Red Fort.  While the call to


Srinagar was made from Chandni Chowk, the second call was made from


behind the Red Fort.  It has already come in the earlier discussion that the


information received from the analysis of the cell phone records particularly


of cell No. 9811242154 along with its IMEI number came very handy to the


investigating   team   for   further   establishing   the   connection   in   between   the


landline   telephones   which   were   at   the   computer   centre   owned   by   the


appellant at Ghazipur which  number was  in the name of his sister-in-law


Farzana   Farukhi   and   where   the   appellant   lived   with   his   wife   Rehmana


Farukhi.  Ms. Jaiswal took us thoroughly through the cross examination of


this witness and pointed out that on the basis of Exhibit PW-198/DA, there


were some contradictory entries in Exhibit PW-198/DA and the other data


proved   by   the   witness.     We   are   not   impressed   by   this   argument   firstly


because  there is  nothing to show that  this is an authenticated  document


and   though   Ms.   Jaiswal   claimed   that   this   document   was   supplied   to   the


accused by the prosecution, there is nothing to support such a claim.  We,


                                              59



have, therefore, no hesitation in rejecting Exhibit PW-198/DA.  Ms. Jaiswal


then   pointed   out   that   in   Exhibit   PW-198/E,   there   were   certain


discrepancies.  The witness had actually explained those discrepancies by


asserting   "if  the  computer  has   reversed   at  some  point,  it   may  be   due   to


technical   fault".     It   is   quite   understandable   that   there   could   be   some


technical   problems   in   the   computer.     We   have   gone   through   the   whole


cross   examination  very  carefully  but   we  do   not   find   any  reason   to   reject


Exhibit PW-198/E.  In our opinion, the insignificant irregularities brought in


the cross examination would not call for rejection of the document and the


evidence.  We, therefore, accept that cell phone No.9811278510 was used


at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the


day   when   the   attack   took   place   at   or   about   the   same   time   on   Red   Fort


wherein three innocent persons were killed.  We also confirm the finding by


the trial Court and the appellate Court that it was this mobile number which


was found with the appellant when he was arrested. We have already held


that the theory that this mobile number belonged to the prosecution and it


was   planted   on   the   appellant   is   not   only   farfetched   but   totally   un-


believable.    We have  also  explained the delay in recovery of this mobile


number   from   the   accused   on   the   basis   of   its   IMEI   number.     The   other


corroborating   evidence   connecting   the   two   mobile   numbers   namely,


9811278510   and   9811242154   and   the   IMEI   Nos.44519944090240   and


449173405451240 and their interconnection with  phone No.011 3355751


                                              60



of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and


phone   No.6315904   at  computer  centre  is   to  be  found  in  the  evidence  of


Rajiv   Pandit   (PW-198),   Inspector   Mohan   Chand   Sharma   (PW-229)   and


Inspector S.K.Sand (PW-230).  The attempt of the investigating agency in


analyzing the call details of these two numbers succeeded in establishing


the   connection   of   these   two   numbers   with   the   number   of   BBC


correspondent at Srinagar, the number of BBC correspondent at Delhi, the


number  at Farzana Farukhi's residence  and  the  number  at the computer


centre   in   the   name   of   Danish   Mohd.   Khan.     But   for   this   careful   and


meticulous analysis  which  was  of very high standards,  it  would  not have


been possible to apprehend the appellant and to de-code the intricate and


complicated   maze  of  the   conspiracy.    The   timing  of  the   calls made  from


this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi


bearing No.011 3355751 are significant.  It will be seen that the calls made


to   Srinagar   were   at   7.41   p.m.,   7.42   p.m.   and   9.27   p.m.   while   the   calls


made to BBC, Delhi were  at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m.


Again, while the calls to Srinagar were made from the front side of the Red


Fort, the other calls were made from the back side of the Red Fort which


establishes   the   presence   of   this   mobile   phone   in   close   proximity   to   Red


Fort when the calls were made.  That is a very significant aspect.


                                             61



38.    All this evidence would leave no option for us except to accept the


prosecution's contention that this cell phone No.9811278510 and the other


phone   No.   9811242154   as   also   the   two   IMEI   numbers   were   extremely


significant aspects.




39.    The   next   circumstance   which   makes   these   mobile   cell   phones


significant was the evidence of PW-229, Inspector Mohan Chand Sharma


when he asserted that this mobile No.9811278510 was constantly used on


14.11.2000 from Zakir Nagar area.  The witness claimed this on the basis


of the cell ID.  It is to be seen that when the said mobile was used its IMEI


No.   was   445199440940240   and   the   witness   further   asserted   that   during


this   period   phone   calls   from   this   number   were   made   to   Pakistan.     The


witness   explains   that   on   11.12.2000,   the   IMEI   number   was   changed   to


449173405451240   and   a   telephone   call   was   made   from   this   number   to


0116315904  which  is the landline number of computer centre run by the


appellant.     The   making   of   the   calls   to   Pakistan   is   extremely   significant.


This witness also explained in his evidence as to how on the basis of the


cell   ID   and   the   call   record   of   the   two   mobile   cell   phones,   namely,


9811278510 and 9811242154 they zeroed on the location of the accused.


This   witness   has   explained   that   the   earlier   mentioned   IMEI   number


445199440940240   was   also   used   in   the   second   mobile   number


9811242154.   In his examination in chief, this witness has explained that


                                              62



the   calls  were   received   and   made   from   and   to   this   number   9811242154


from Zakir Nagar and Ghazipur.   He also asserted in his conclusion that


the   cell   ID   of   mobile   number   9811242154   was   at   Zakir   Nagar   when   the


calls   were   made   to   Ghazipur   and   the   cell   ID   was   at   Ghazipur   when   the


calls   were   received   on   Zakir   Nagar.     This   he   said   on   the   basis   of   the


computer installed in their office.   The witness also explained that the call


details of the telephone number 9811242154 was collected from the official


computer and he also proved the document Exhibit PW-229 A which data


pertained to the period 22.7.2000 to 19.11.2000.   He also connected the


two telephones by saying that the calls were made on 8.9.2000 at about


11.37.53 hours to pager No.1949696 from both these mobile cell phones.


He then asserted about the user of cell phone number 9811278510 on the


day   when   the   attack   took   place.     He   also   established   the   connection   of


landline   No.2720223   at   Ghazipur   which   stood   in   the   name   of   Farzana


Farukhi   and   another   number   6315904   which   was   a   landline   number   at


Knowledge   Plus   Computer   Centre   run   by   the   appellant.     It   was   on   the


basis   of   the   caller   ID   that   the   investigating   team   zeroed   on   these   two


points.  We do not see any reason to dis-believe this witness.  The calls to


Pakistan   from   the   concerned   numbers   is   a   very   significant   circumstance


particularly   because   the   appellant   is   admittedly   a   Pakistani   national   and


was staying in India unauthorizedly.


                                              63



40.     The witness also asserted on the basis of Exhibit PW-198/B1 to B3


that there were  calls made on 20.12.2000  to 22.12.2000 in which calling


number   could   not   be   recorded   as   the   calls   were   made   from   Pakistan   to


India.     He   explained   it   that   during   those   days   clipping   facility   was   not


available in India with Pakistan.  He explained clipping facility to be Calling


Line   Identification   facility.     He   has   further   asserted   that   these   calls   from


Pakistan were received on mobile number 9811278510 when that mobile


number   was   at   Jamia   Nagar,   New   Friends   Colony,   Kashmere   Gate   and


Chandni Chowk and he further asserted that on 22.12.2000 when the calls


were received on 14.32 i.e. at 2.32 p.m. the position of the mobile was at


Darya Ganj.   He also further explained that when the call was made from


this  number   9811278510   on  22.12.2000  at  7.41   p.m.  the   location  of  this


number could be inside the Red Fort.  Similarly he asserted about the calls


having been made from this number at 8.24 p.m. when this telephone was


at   Kashmere   Gate   i.e.   towards   the   back   of   Red   Fort.     He   also   asserted


about the calls having been made from this number to BBC, Delhi when


the location of cell phone was behind the back of Red Fort.   Similarly, he


spoke  about the call having been made  to  BBC,  Srinagar on its  landline


number from the same position when the cell phone caller was behind the


back of the Red Fort. He also further asserted that on the same day i.e. on


22.12.2000  the  calls were  received  on  this cell phone  number  when  this


cell phone number was at Jamia Nagar and that the cell phone remained


                                               64



in the same position at Jamia Nagar constantly.  There is no reason for us


to dis-believe this evidence which was collected so painstakingly.  What is


most  significant  in  this evidence  is  that  this very cell phone  number  was


used to make the calls to and receive the calls from Pakistan.




41.     The   next   significant   circumstance   is   the   evidence   of   Inspector


J.S.Chauhan of BSF (PW-162).   He was posted at Rajouri on 26.12.2000


and  on  that   day  a  message   was  intercepted   by  BSF   to   the  effect  that  a


wanted   militant   in   the   shoot-out   inside   Red   Fort   case   known   as   Ashfaq


Ahmed   was   apprehended   while   other   militant   Abu   Shamal   was   killed.


According   to   this   witness   this   message   was   being   passed   by   LeT   by   a


militant   called   Abu   Sakar   to   a   station   in   Khyber   in   Pakistan   Occupied


Kashmir.     He   proved   the   handwriting   of   one   B.S.   Virk   DIG   (West)   and


proved the document as Exhibit PW-162A.  The other witness on this point


is Constable Suresh Kumar, BSF Head Quarters Srinagar (PW-175).   He


was the one who intercepted the message on his wireless set to the effect


that Delhi police had killed one militant Shamal Bhai and one more militant,


namely,   Abu   Hamad   Hazarvi   whose   real   name   was   Ashfaq   was


apprehended.   The message also suggested that militant Bilal Babar was


successful   in   running   away   and   was   hiding   in   Delhi   in   his   hide   out.     He


asserted that he passed this message to the senior officers.   In his cross


examination, it has come that it was not a coded message and the same


                                            65



was being conveyed in Urdu.   A very funny suggestion has been given to


this witness that it was  a coded message meaning thereby the factum of


message was admitted.       In his cross examination at the instance of the


appellant the witness  asserted that the message was  being passed from


Srinagar though he was unable to locate the exact point of the wireless set


from   which   it   was   being   sent.     There   is   hardly   any   cross   examination.


Significantly, there is a reference to one Abu Bilal in the said intercepted


message.     Very   significantly,   it   has   come   in   the   evidence   of   Inspector


Pratap Singh (PW-86) and the evidence of S.K.Sand (PW-230) that when


the   appellant   was   apprehended   and   his   wallet   was   checked,   a   negative


was recovered from the wallet which was said to be of Abu Bilal.   In fact


Inspector   S.K.   Sand   (PW-230)   got   this   negative   developed   into   a


photograph.  He then asserted that the said Abu Shamal who was involved


in   the   Red   Fort   shoot   out   case   had   died   and   an   FIR   No.9/2002   police


station Special Cell was registered in this behalf.  The said Abu Bilal was a


proclaimed   offender   in   FIR   No.688   of   2000   Police   Station   Kotwali,   Delhi


and  as per the  evidence of Mohan Chand Sharma he was  subsequently


killed   in   an   encounter.     All   this   voluminous   evidence   would   not   only


corroborate the prosecution version to show the significant role played by


the appellant in handling both the cell phone numbers mentioned above.  It


is  of no minor significance that  on the apprehension of the appellant  the


news should reach Srinagar and from there to Pakistan Occupied Kashmir


                                            66



by   way   of   wireless   messages   not   only   about   the   involvement   of   the


appellant but also about Abu Shamal who was killed in the encounter as


also   Abu   Bilal   who   was   a   proclaimed   offender   and   was   then   killed   in


another encounter.




42.    There   is   also   some   material   brought   by   the   prosecution   about   the


calls from these numbers to one Sher Zaman who is said to be a Hawala


dealer.     The   investigating   agency   raided   the   house   of   Sher   Zaman   on


12.01.2001.     This   was   on   account   of   the   information   received   by   the


investigating   agency   from   the   appellant.     In   that   raid,   a   sum   of


Rs.1,11,100/-   was   found   at   the   said   house   and   certain   other   documents


like diaries were  also found which were  seized under the seizure memo.


Mohd. Idrish (PW-74) who was the President of Dila Ram Afgani Market,


Ballimaran   Delhi   has   proved   the   seizure.     The   fact   that   the   calls   were


made from cell phone 9811278510  were  made by Mohd. Arif @ Ashfaq,


the appellant, to the telephone No.3969561 was established by Kashi Nath


(PW-46)   who   was   representative   of   MTNL.     He   proved   that   this   number


was installed by him in premises No.5123, Sharif Manjil and that was the


office   of   Sher   Zaman.     This   evidence   was   also   corroborated   by   Om


Prakash   (PW-46).     Very   significantly,   the   documents   seized   at   Sher


Zaman's   office   included   a   Visa   of   Islamic   Republic   of   Pakistan   and   an


identity card of NIIT etc.  The seizure memo is proved by R.K. Ajwani (PW-


                                           67



83).     He   was,   at   the   relevant   time,   working   in   the   Directorate   of


Enforcement   as   the   Chief   Enforcement   Officer   and   deposed   that   the


appellant in his presence identified the photograph to be of Sher Zaman @


Shabbir and accepted that he used to deliver hawala money.  The visa slip


of   Islamic   Republic   of   Pakistan   was   proved   and   marked   as   Exhibit   PW-


83/P1   and   NIIT   card   No.1235-00304   with   a   photograph   of   Sher   Zaman


was   proved   and   marked   as   Exhibit   PW-83/P2.     There   were   some   other


documents proved by this witness.  The cross examination of this witness


is also lackluster.  Therefore, this evidence is also extremely significant to


support the role played by the appellant in the conspiracy.




43.    Even at the cost of repetition, we may mention that immediately after


the appellant was apprehended with a pistol and the live rounds he spilled


the beans and gave information about his other associate Abu Shamal on


the basis of which information the investigating team reached G-73, Batla


House at about 3.15 a.m.   This is deposed to by Inspector Mohan Chand


Sharma.     The   house   was   locked.     The   investigating   team   lay   there   and


waited and at about 5.10 a.m. a man resembling the description given by


the   appellant   entered   the   house.     The   house   was   knocked   at   and   the


police disclosed their identity but the same was not opened and therefore,


it had to be opened by the use of force.  As per the evidence of Inspector


Mohan   Chand   Sharma   (PW-229)   the   firing   started   from   inside   and   the


                                             68



same   was   returned   eventually   leading   to   the   death   of   Abu   Shamal   @


Faisal.   It is very significant to note that from this house, one AK-56 rifle,


two magazines, 32 live and 67 fired cartridges were recovered.   Two live


hand   grenades,   bullet   proof   jackets   and   khakhi   uniform   were   also


recovered.   It is significant that there is virtually no cross examination on


this aspect.   The evidence of Inspector Mohan Chand Sharma (PW-229)


suggests that immediately after his apprehension, the appellant had owned


up the involvement in the Red Fort attack incident and that he showed his


residence to recover the arms and ammunitions and also disclosed about


his associate.  There is absolutely no cross examination about the incident


at   G-73,   Batla   House,   Muradi   Road,   Okhla   which   place   the   police   party


was led by and discovered by the appellant.  There is nothing to challenge


the   finding   of   the   weapons   &   ammunition   which   were   recovered   at   the


instance of and  as a result  of information given by the  appellant.  All this


has   gone   unchallenged   in   cross   examination   of   Inspector   Mohan   Chand


Sharma (PW-229).  All this is supported by documentary evidence like DD


entry   bearing   No.20   at   Police   Station   New   Friends   Colony   which


mentioned about the firing going in Gali N.8, Batla House.  Ram Singh, ASI


(PW-92) proved this entry.   Similarly, the receipt of information is entered


as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m.


Lastly,   on   the   same   day   there   is   another   entry   DD   No.22A   at   the   same


police   station   on   the   basis   of   information   by   Inspector   Mohan   Chand


                                             69



Sharma and FIR No.630 of 2000 was also registered.  The other significant


witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW-


92).     We   need   not   go   into   the   contents   of   these   entries   excepting   to


suggest that the information given by the appellant about Abu Shamal is


reflected therein.    This brings us to a very important discovery statement


made   by   the   appellant   as   also   to   the   seizure   in   pursuance   of   the   said


discovery statement.




44.    The   appellant   was   formally   arrested   after   he   was   brought   back   at


about 6.45 a.m. by S.I. Harender Singh (PW-194).  It is at this time that the


mobile   phone   No.9811278510   was   recovered   from   his  possession.     The


seizure has been proved by Zile Singh (PW-148) which is Exhibit PW-148/


D.  This witness proved that after his formal arrest by S.I. Harender Singh


in   the   search   of   appellant,   Rs.1000   in   cash   and   the   mobile   phone   of


Motorola make was recovered.  He then made a disclosure statement vide


Exhibit PW-148 E.   This recovery of mobile phone was also corroborated


by   Inspector   Mohan   Chand   Sharma   (PW-229).     It   had   IMEI   number


449173405451240   on   which   calls   were   made   from   mobile   phone


9811278510  and  as per the  call details  this was   the instrument used  for


mobile number 9811278510.  We have already explained in the earlier part


of the judgment that this evidence could not be rejected on the mere plea


that   the   mobile   number   was   not   found   or   was   not   immediately   taken   in


                                              70



possession by the investigating agency though they apprehended him on


the night of 25.12.2000.  We have also pointed out as to how it would have


been   disastrous   to   waste   time   in   writing   the  Panchnama  instead   of


immediately   acting   on   the   information   given   by   the   appellant.     We,


therefore, see nothing unnatural or unusual in the recovery of the mobile


phone   9811278510.     After   all,   the   subsequent   results   which   followed


discovery statement by the appellant i.e. the knowledge about G-73, Batla


House and the encounter of Abu Shamal and the finding of his fire weapon


and   the   ammunition   etc.   do   justify   the   quick   action   on   the   part   of   the


investigating agency.  We, therefore, cannot view with suspicion the formal


arrest of the appellant and the recoveries effected thereafter or the seizure


memos executed.




45.     After   his   arrest   in   the   evening   of   25.12.2000,   the   appellant   firstly


disclosed about Abu Shamal @ Faizal.  After the encounter of Abu Shamal


@   Faizal,   when   his   formal   arrest   was   made,   he   made   disclosures   vide


Exhibit PW-148/E.   There is no cross-examination of S.I. Zile Singh (PW-


148)   about   the   factum   of   the   appellant   having   made   a   disclosure.     S.I.


Harender   Singh   (PW-194)   is   another   witness   to   speak   about   the   Exhibit


PW-148/E.  It has been baldly suggested to S.I. Harender Singh (PW-194)


that the appellant was tortured.  The discovery statement which was made


by the appellant is to the following effect:-


                                            71



               "Abu Shaimal had thrown his AK-47 rifle, magazine and

               hand   grenade   into   the   shrubs   near   nullah   behind   the

               wall of Red Fort.   Abu Shad had thrown his AK-47 rifle

               into the shrubs grown at Vijay Ghat.  I can point out the

               places and get recovered the weapons."


       Another witness examined on this issue was S.I. Satyajit Sarin (PW-


218).   He asserted in his examination-in-chief that the investigation team


reached  the  Red Fort alongwith  Mohd. Arif @  Ashfaq and  the team was


joined   by   Inspector   Hawa   Singh   (PW-228).     They   requested   two/three


passersby to join the investigation, but they refused to join and, therefore,


without   wasting   any   further   time,   they   reached   the   spot   and   there   they


found   AK-56   Assault   Rifle,   two   magazines   tied   to   each   other   and   a


bandoleer   of   military   green   colour   containing   four   hand   grenades   in   four


different   packets.     The   site  plan  was   prepared   by  Inspector  Hawa Singh


(PW-228) and the recovery of the arms and ammunition was made and the


same were  taken to P.S.  Kotwali.    The hand grenades were  later on got


defused.  The chance finger prints were tried to be taken and photographs


were taken.




46.    The witness also gave a complete description of the four detonators


and a slip attached to the hand grenades.   A complete description of the


shells   was   given   by   this   witness.     He   also   identified   the   said   rifles,


magazines,   knife   and   detonators,   as   also   four   hand   grenades   and   the


bandoleer  in Court.    The  other witness  to support this discovery and the


                                             72



recoveries pursuant thereto is S.I. Amardeep Sehgal (PW-227).   He also


gave a complete story as deposed by the earlier witness.   This evidence


was   further   corroborated   by   the   evidence   of   N.B.   Bardhan,   Sr.   Scientific


Officer   in   CFSL   (PW-202),   who   was   present   at   the   time   of   recovery   of


hand grenades  being a ballistic expert.   Another witness   is S.K. Chadha


(PW-125).     We   have   already   discussed   earlier   the   evidence   of   N.B.


Bardhan about the nature of the rifles, one found at Batla House and the


other recovered at the instance of the appellant from the Red Fort wall.  He


has also spoken about the nature of the hand grenades.   This discovery


was   attacked   vehemently   by   Ms.   Kamini   Jaiswal,   learned   counsel


appearing   on   behalf   of   the   appellant,   in   all   the   aspects.     The   learned


counsel   described   this   recovery   as   a   farce   and   also   asserted   that   this


discovery could not be said to be a discovery at all in view of the fact that


in   all   probability,   the   placement   of   the   rifles,   bandoleer   etc.   must   have


known to the police for the simple reason that the whole area was almost


combed   by   number   of   police   personnel   for   the   whole   night   and   even


thereafter  i.e.  in  the  night   of  22.12.2000  and   the  morning   of  23.12.2000.


We have seen the recovery Panchnama proved by the witnesses at Exhibit


PW-227/A.     It   has   to   be   borne   in   mind   that   both   the   rifles   and   the


ammunition have not only been identified by the witnesses but it has also


been proved by the prosecution as to how they were used and the fact that


they were used actively in the sense that they were fired also.   We have


                                            73



already discussed the evidence of the Ballistic experts, which went on to


corroborate the version by the prosecution.   The learned counsel pointed


out that this weapon  was  found near to the slip which was  recovered on


the night of 22.12.2000 itself.  She also pointed out that weapon could not


be said to be hidden.  They were just lying in the bush and, therefore, it is


just impossible to infer that they were not seen by the police.  In short, the


learned   counsel   suggested   that   this   is   a   fake   discovery   and   the   police


already knew about the AK-56 Assault Rifle, magazines and a bandoleer


etc.     She   pointed   out   that   one   other   witness,   namely,   Abhinender   Jain


(PW-28) was a part of the team in recovering the weapons allegedly at the


instance of the appellant and he did not speak about the disclosure made


by the appellant on 26.12.2000.   We shall revert back to this discovery in


particular and the law relating to Section 27, Evidence Act a little later.




47.    Another   discovery   at   the   instance   of   the   appellant   was   on


01.01.2001 vide Disclosure Statement (Exhibit 28/A).     However, there is


one   more   important   discovery   at   the   instance   of   the   appellant,   which   is


proved at Exhibit 168/A.  It was made on 01.01.2001 and has been proved


by   R.S.   Bhasin   (PW-168)   and   S.I.   Satyajit   Sarin   (PW-218).     In   this


discovery, the appellant disclosed that out of the hand grenades which he


had   brought   from   Pakistan,   three   were   hidden   in   the   bushes   inside


boundary wall of Jamia Milia Islamia University, which spot is just behind


                                           74



the   computer   centre   run   by   the   appellant.     Accordingly,   this   discovery


statement   was   recorded   by   R.S.   Bhasin   (PW-168)   and   he   organized   a


raiding   team   consisting   of   Inspector   Hawa   Singh   (PW-228),   Inspector


Mohan Chand Sharma (PW-229) and five others, who were not examined


by the prosecution.  The team went to New Friends Colony at 2.25 pm and


appraised SHO Gurmeet Singh (PW-213), who  alongwith  two others (not


examined), joined the investigation.   After taking the permission from Dr.


Farukh and Dr. Mehtab, one Raghubir Singh (PW-209) was asked by the


authorities to join the investigation.   One Devender Kumar (PW-208) also


joined the raiding party.  Thereafter, at the instance of the appellant, three


hand grenades were recovered kept concealed.  A seizure memo was also


executed vide Exhibit PW-168/B and a Rukka was  also prepared, on the


basis   of   which   a   new   case   was   sought   to   be   registered   at   P.S.   New


Friends   Colony.     One   more   disclosure   statement   was   made   vide


Exhibit   PW-168/D,   where   the   appellant   disclosed   and   agreed   to   recover


more   hand   grenades   and   AK-56   rifle   which   was   recovered   from   Safa


Qudal, Sri Nagar.   This version was supported by S.I. Satyajit Sarin (PW-


218) as also S.I. Amardeep Sehgal (PW-227) and Inspector Hawa Singh


(PW-228).  There is nothing to disbelieve this discovery of hand grenades


which   hand   grenades   were   ultimately   identified   and   their   potency   was


proved by N.B. Bardhan (PW-202).  A feeble contention was raised by Ms.


Jaiswal,  learned counsel that this discovery of the hand grenades should


                                               75



not be believed because it is belated.   She pointed out that the appellant


was   in   the   police   custody   right   from   the   night   of   25.12.2000   and   the


discovery statement was made and recorded on 1.1.2001.   Insofar as the


discovery of grenades is concerned, we must say that nothing much was


argued.  The significance of the grenades having been hidden right behind


the   computer   centre   near   the   compound   wall   of   Jamia   Milia   Islamia


University cannot be ignored.  The appellant has no explanation as to why


the three hand grenades were hidden right behind the computer centre.




48.     The  learned  Solicitor General very forcefully argued with  reference


to various documents which supported this discovery and pointed out that


immediately after the recovery of these hand grenades, they were seized


properly and this recovery was supported by the independent evidence of


Devender Jain (PW-208) and Raghubir Singh (PW-209).   He also pointed


out  that  there is  nothing  in  the cross-examination  of  these  two  individual


witnesses   to   dispute   or   doubt   the   recovery   of   the   hand   grenades   at   the


instance   of   the   appellant.     It   is   to   be   noted   that   police   could   not   have


produced the foreign made hand grenades to be planted either at the Red


Fort   or   at   Jamia   Milia   Islamia   University   behind   the   computer   centre.


Insofar as the discovery of hand grenades at Jamia Milia Islamia University


is concerned, we have no doubts about its genuineness and we accept the


same.     Merely   because   the   appellant   was   in   custody   for   4-5   days   and


                                              76



decided   to   disclose   the   information   only   on   01.01.2001,   would   not   be   a


reason by itself to doubt the same or to have any suspicion on the same.


In the case of this nature and magnitude and also considering the nature of


the appellant who  was  a Pakistani national and was  allegedly sent to do


terrorist  acts in  India  and  as such  a tough  terrorist,  was  not  expected  to


give   easily   the   information   unless   he   was   thoroughly   interrogated.


Considering   the   peculiar   nature   of   this   case,   we  accept   the   discovery  of


grenades at the instance of the appellant.  Same thing can be stated about


the   earlier   discovery   dated   26.12.2000   of   the   AK-56   Assault   Rifle,


magazines, bandoleer etc.  The very fact that these weapons were proved


to have been used would corroborate the discovery.   If the general public


refused to join the investigation to become Panchas, that cannot be viewed


as a suspicious factum and on that basis, the investigative agency cannot


be faulted.  After all, what is to be seen is the genuineness and credibility


of the discovery.  The police officers, who were working day and night, had


no reason to falsely implicate the appellant.  They could not have produced


AK-56   Rifles   and   the   grenades   of   foreign   make   from   thin   air   to   plant   it


against the appellant.  It has been held in Suresh Chandra Bahri v. State


of Bihar [1995 Suppl (1) SCC 80]  that even if the discovery statement is


not recorded in writing but there is definite evidence to the effect of making


such  a discovery statement  by  the concerned  investigating officer,  it can


still be held to be a good discovery.  The question is of the credibility of the


                                             77



evidence of the police officer before whom the discovery statements were


made.    If the  evidence  is  found to  be genuine  and  creditworthy,  there  is


nothing  wrong  in accepting such  a  discovery statement.    We do not  see


any   reason   to   accept   the   argument   that   the   police   must   have   already


known about the weapon.   Considering the fact that this attack was on a


dark night in the winters and the guns were thrown in the thick bushes then


existing behind the Red Fort wall, it is quite possible that they were missed


by the investigating agency.  At any rate, the recovery of these guns from


the spot near which the whole horrible drama took place and the appellant


having   knowledge   about   the   same   and   further   the   proved   use   of   these


weapons and their fire-power, would persuade us to accept this discovery.


Again,   we   cannot   ignore   the   fact   that   the   factum   of   discovery   has   been


accepted by both the Courts below.




49.    There   are   some   other   significant   circumstances   relied   on   by   the


prosecution   to   show   that   the   appellant,   who   admittedly   was   a   Pakistani


national   and   had   unauthorizedly   entered   India,   wanted   to   establish   his


identity in India and for that purpose, he got prepared a fake and forged


ration card and on that basis, applied for a driving license and also opened


bank   accounts.    The  only purpose   in  doing  this was  to  establish  that   he


was living in Delhi legitimately as an Indian national.


                                              78



50.     On his arrest on 25.12.2000, a ration card was recovered and seized


from the very house at 308A, DDA flats, Ghazipur, Delhi.   This card bore


the number 258754.   This was in the name of Ashfaq Ahmed, S/o Akram


Khanat, R/o F-12/12, Batla House, Okhla, New Delhi.  S.R. Raghav, retired


Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest


that this card was not issued by his department i.e. Circle 6, Okhla.  Other


witness   is   Ms.   Anju   Goel,   UDC   (PW-164),   who   deposed   that   the


appellant's   ration  card   did   not   bear  her   signature.     She   also   pointed   out


that the signature appearing in Exhibit PW-164/A (ration card) was not her


signature.     There   is   no   effective   cross-examination   of   both   these


witnesses.   Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165)


also referred to the aforementioned ration card proved by Ms. Anju Goel


(PW-164) and asserted that the signature and the handwriting on the said


card  was   not  that  of   Ms.  Anju   Goel.     Manohar  Lal,   UDC,   Department   of


Education   (PW-172)   deposed   that   the   appellant's   ration   card   was   not


issued   from   Circle   6   of   the   Ration   office.     Kushal   Kumar   (PW-174)


deposed   that   he   had   made   entry   of   ration   card   of   the   appellant   in   his


register   at   his   fair   price   shop.     Ms.   Sunita,   LDC,   Food   &   Supply   Office,


Circle 7 (PW-191) gave specimen of two rubber stamps and they did not


tally with the rubber stamps on the ration card of the appellant.   There is


absolutely   no   cross-examination.     There   is   a   report   proved   by   Yashpal


Singh,   Supply   Inspector,   Department   of   Food   and   Supply,   Ghaziabad


                                            79



(PW-2), being Exhibit PW-2/A, to the effect that no ration card in the name


of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office.  Thus, it


is obvious that the appellant got prepared a fake ration card, where name


of   his   wife   was   mentioned   as   Bano   and   residence   as   102,   Kela   Bhatta,


Ghaziabad,   where   he   had   never   resided.     This   ration   card,   significantly


enough,   was   recovered   from   his   house   at   308A,   DDA   flats,   Ghazipur,


Delhi.     Yashpal   Singh   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer,


Food   and   Civil   Supply   Department,   Ghaziabad   (PW-3)   proved   that   the


ration card was in the name of Azad Khalid (PW-1) and there was no ration


card   in   the   name   of   Ashfaq   Ahmed   S/o   Akram   Khanat.     Azad   Khalid


Siddique,   Correspondent,   Sahara   TV   (PW-1)   himself   stepped   into   the


witness box and deposed that there was one ration card in his name and


other in his father's name, which were issued at the address of 102, Kela


Bhatti,   Ghaziabad,   which   address   was   falsely   given   by   the   appellant


because the appellant had never stayed  at the said address.   Thus, it is


obvious   that   the   ration   card   was   fake   and   fabricated.     The   factual


information on the ration card also does not tally at all.




51.    The   investigating   agency,   on   3.1.2001,   seized   certain   important


documents, they being a learner's license issued by Shaikh Sarai Authority


bearing Exhibit No. PW-13/C, Form No. 2 of Ashfaq Ahmed for renewal of


learner's   license   bearing   Exhibit   No.   PW-13/D   and   a   photocopy   of   the


                                               80



ration card  of Ashfaq  Ahmed  bearing Exhibit  No. PW-13/E.   The  seizure


memo   is   Exhibit   PW-13/B.     These   documents   have   been   proved   by  S.I.


Rajinder Singh (PW-137).   This was  in order to do the verification of the


driving   license   of   the   appellant.     The   witness   suggests   that   he   enquired


from   Ms.   Mamta  Sharma  (PW-16),   ARTO,   who   confirmed   that   the   same


was a genuine driving license having been issued by her office and hence,


proceeded to seize the supporting documents.   It is obvious that the said


driving license was sought for on the basis of the ration card in the name of


the appellant, which was obviously fake, as we have already shown above


for the simple reason that the address given on this driving license was not


the genuine address of the appellant, whereas it was in fact the address of


Azad Khalid Siddique (PW-1) who had nothing to do with the appellant.  In


this   driving   license   also,   the   address   given   by   the   appellant   was   B-17,


Jangpura,   Bhogal   and   it   was   issued   by   Sarai   Kale   Khan   Authority.     He


obviously did not reside on this address which is clear from the evidence of


Narayan Singh (PW-6).  Thus, not only did the appellant got himself a fake


and forged ration card, but on this basis, also got prepared a fake learning


license,   in   which   also,   he   gave   a   false   residential   address.     All   this   was


obviously   with   an   idea   to   screen   himself   and   to   carry   on   his   nefarious


activities   in   the   Indian   cities.     Nothing   much   has   come   in   the   cross-


examinations   of   these   witnesses.     We   have,   therefore,   no   hesitation   to


hold that the appellant used a forged ration card and got a driving license


                                            81



giving a false address.




52.    The appellant, in order to legitimize his residence in Delhi, started a


computer   centre   at   House   No.18C,   Gaffur   Nagar,   Okhla.     Danish   Mohd.


Khan   (PW-44),   Mohd.   Khalid   (PW-36),   Faizal   Mohd.   Khan   (PW-56),


Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   are   the


witnesses on this aspect.   Danish Mohd. Khan (PW-44) deposed that his


cousin Faizal had opened a cyber cafe with the appellant and this was told


to him in September, 2000.  Previously both of them used to reside in the


house of Nain Singh (PW-20).  Since Faizal did not have an identity proof,


he borrowed the identity card of this person and since the card was in his


name, the phone connection in this computer centre was also in his name.


He,   undoubtedly,   resiled   from   his   statement   before   the   police   that   he


applied   for   a   telephone   connection   in   his   name.     However,   there   is   no


cross-examination of this witness about what was told to him by Faizal.  In


his cross-examination at the instance of the Public Prosecutor, he admitted


that Faizal had asked him to help him in getting telephone connection.  He


also   admitted   that   Faizal   had   told   him   that   for   getting   an   internet


connection,   a   telephone   was   required.     The   telephone   number   of   the


computer centre was 6315904 which was in the name of this witness.




53.    The   other   witness   in   this   behalf   is   Faizal   Mohd.   Khan   (PW-56)


himself who deposed that he was residing in the house of one Nain Singh


                                              82



(PW-20) at Okhla Village on a monthly rent of Rs.1,000/- and that he had a


personal computer on which he used to practice.  He further deposed that


one Adam Malik (PW-31) also used to reside in the said house and it was


he   who   brought   the   appellant   with   him   in   May,   2000.     It   was   this   Adam


Malik (PW-31) who  introduced  him to the appellant and told him that the


appellant is a resident of Jammu.   He wanted to open a computer centre


but  was  not  having enough money and  it  was  Adam Malik (PW-31) who


informed the appellant that the witness wanted to open a computer centre


and offered financial help.  He managed Rs.70,000/- and the appellant put


Rs.1,70,000/-   and   that   is   how   the   computer   centre   was   opened.     The


witness  stated  that  the twosome  i.e. himself and  the appellant  employed


one   Shahvez   Akhtar   (PW-113)   and   Shahnawaz   Ahmad   (PW-163)   as


faculty members on the condition that they would get salary only when the


computer centre starts earning profit.   He then deposed that he used the


ration   card   of   Danish   Mohd.   Khan   (PW-44)   and   a   telephone   connection


was   obtained   in   the   name   of   Danish   Mohd.   Khan   (PW-44)   and   was


installed   at   the   computer   centre   `Knowledge   Plus'.     We   have   already


referred   to   his   assertion   that   the   appellant   had   a   mobile   phone.     In   his


cross-examination, nothing much has come about the contribution given by


the appellant of Rs.1,70,000/-.   He also asserted that it was the appellant


who managed to take the premises of computer centre on lease.  Shahvez


Akhtar  (PW-113) and  Shahnawaz  Ahmad  (PW-163) have supported this.


                                            83



Adam Malik (PW-31) also confirmed that he was the one who arranged for


the accommodation of the appellant in the house of Nain Singh (PW-20).


To   him,   the   appellant   had   told   that   he   was   a   Kashmiri   and   doing   the


business of selling shawls.  Nain Singh (PW-20) also supported the theory


of the appellant contacting him through his earlier tenant Adam Malik (PW-


31).  To the same effect is the evidence of Aamir Irfan (PW-37) and Rashid


Ali (PW-232).  All this clearly goes on to show that the appellant was all the


time   making  false   representation,  firstly,  on   his  doing  business   of  selling


shawls,  secondly,  on   carefully  entering   as  a  tenant  in  the  house  of  Nain


Singh   (PW-20),   thirdly,   on   defrauding   Danish   Mohd.   Khan   (PW-44)   for


opening   a   computer   centre   for   which   he   contributed   Rs.1,70,000/-   and


lastly, successfully getting a telephone installed at the computer centre.  All


this was nothing but a deliberate effort to find a firm foot hold on the Indian


soil to carry out his nefarious design.




54.    We have also gone through the evidence of Gian Chand Goel (PW-


21), which establishes the connection of the appellant with House No.G-73


Batala House, Murari Road, Okhala, New Delhi, where the encounter took


place in which the appellant's companion Abu Shamal was  killed.   In his


evidence,   Gian   Chand   Goel   (PW-21)   specifically   stated   that   he   did   not


know   anything   about   the   appellant   and   that   he   had   rented   the   house   to


Rashid Ali (PW-232) on 6.12.2000 i.e. barely 16 days earlier to the incident


                                             84



at a monthly rent of Rs.1,500/-.   He also deposed that on 7.12.2000, two


other boys were  brought by him and all the three started residing on the


first floor of his house.   He deposed that Rashid Ali (PW-232) who was a


student   of   Jamia   Milia   Islamia   University   and   the   appellant   were   the


tenants of Nain Singh (PW-20) and later on, they shifted into his house as


tenants.       He   also   referred   to   the   encounter   dated   26.12.2000,   wherein


Abu Shamal was killed, though he did not know the name of Abu Shamal.




55.    Rashid Ali (PW-232) had a significant role to play in this whole affair.


He   asserted   that   he   was   a   tenant   of   Nain   Singh   (PW-20)   in   1998   while


studying   in   Jamia   Milia   Islamia   University   in   B.A.   IInd   Year.     He   was


friendly with one Hamid Mansoori and Adam Malik (PW-31).   He came to


know the appellant who was residing in the house of Nain Singh (PW-20)


as   a   tenant.     He   also   confirmed   that   the   appellant   was   having   a   mobile


phone with him.   On 8.12.2000, the appellant took him to Roza Iftar Party


at Laxmi Nagar.   Instead of the Iftar Party, the appellant got married to a


lady on that day.  Significantly enough, the appellant had already gone as


a tenant to Gian Chand Goel (PW-21), however, it seems that still he was


making out as if he was residing in PW-20 Nain Singh's house and in an


important   function   like   his   marriage,   he   took   Rashid   Ali   (PW-232)   telling


him that they were going for an Iftar Party in the month of Ramzan.  All this


suggests   that   the   appellant   was   very   particular   about   his   own   personal


                                             85



details   and   made   various   false   representations   to   all   those   in   whose


contact he came.  Needless to say that he used all these witnesses to his


own benefit for carrying out his evil design in pursuance of the conspiracy.




56.    This   brings   us   to   the   evidence   of   Nain   Singh   (PW-20)   and   the


fantastic   theory   that   the   defence   gave   about   the   role   played   by   this


witness.    The  said witness  was  examined to show that House No. 97-A,


Okhla Village was in the name of his mother and while he stayed on the


ground floor, his mother had rented out the first floor and the second floor.


He asserted that Adam Malik (PW-31) was the tenant on the second floor


and he had brought the appellant to his mother and his mother had rented


out the room to him at the rent of Rs.1,200/- per month.  He also asserted


that he asked Adam Malik (PW-31) to get the house vacated, whereupon,


the  appellant  vacated the house after about one and a half months.   He


was cross-examined in detail.  It was brought out in his cross-examination


that   he   did   not   have   any   documentary   evidence   regarding   the   appellant


remaining in that house as a tenant.  It was suggested to him that he was


working as an Intelligence man in the Cabinet Secretariat.   He was made


to   admit   that   he   could   not   disclose   the   present   official   address   or   the


places where he moved out of Delhi.   He was made to say "I cannot say


whether  I am not disclosing these addresses as my identity in the public


would be disclosed".  He also refused to show his identity card in the open


                                              86



Court   while   it   was   shown   to   the   Court.     He   was   made   to   say   "I   cannot


disclose  whether  I am  working  for  RAW".   He  then  clarified  that  no  fund


was at his disposal for going out of Delhi, but he was paid for the Railway


warrant   or   air   ticket.     Strangely   enough,   a   suggestion   was   given   to   the


witness to the effect that the appellant never took the aforesaid house from


his mother on rent or that he was introduced by any of the other tenants of


that   house.     All   through   in   his   cross-examination,   it   was   tried   to   be


suggested that the appellant never stayed in his house as a tenant.   That


is all the cross-examination of this witness.  In his statement under Section


313 Cr.P.C.,  the appellant suggested  that he used to work  for X-Branch,


RAW   (Research   &   Analysis   Wing)   since   1997   and   he   had   come   to


Kathmandu in June, 2000 to give some documents to one Sanjeev Gupta


on a Pakistan Passport bearing No. 634417.   He spoke that there was a


party named Paktoonmili Party and RAW was supporting that party since


last  30-35  years.     He stated  that   one  Sagir  Khan   was  a  member   of  that


party and he was arrested by the police of Pakistan alongwith his younger


brother   and   he   received   this   news   in   Kathmandu   and   spoke   to   Sanjeev


Gupta in this regard.   He further claimed that his cousin had also advised


him   not   to  return   to  Pakistan  for   the   time  being   and   that   Sanjeev   Gupta


advised him to go to India and he accompanied him upto Rauxol and from


there,   he   (the   appellant)   came   to   India   by   train.     He   claimed   that   the


address   of   Nain   Singh   (PW-20)   was   given   to   him   by   Sanjeev   Gupta   as


                                            87



also   his   telephone   number   being   6834454.     He   then   claimed   that   Nain


Singh (PW-20) gave a room in his house for his stay and advised him not


to   tell   his   name   and   address   to   anyone   and   to   describe   himself   as   a


resident   of   Jammu.     He   claimed   that   Nain   Singh   (PW-20)   used   to   do


business   of   money   lending   and   the   appellant   used   to   help   him   in


maintaining   his   accounts.     He   then   claimed   that   Nain   Singh   (PW-20)


helped him to open the computer centre.  Thereafter, Nain Singh (PW-20)


got   some   money   through   Sanjeev   Gupta   from   Nepal.     The   amount   was


Rs.7 lakhs.  However, Nain Singh (PW-20) did not disclose about receiving


of that huge amount and whenever he was questioned about any amount,


Nain   Singh   (PW-20)   used   to   avoid   such   questions.     He   then   claimed   to


have  contacted  his  family members  who  asked  him to  speak  to Sanjeev


Gupta   and   after   he   spoke   to   Sanjeev   Gupta,   he   came   to   know   about


Rs.6,50,000/-   having   been   sent   to   Nain   Singh   (PW-20)   by   him.     The


appellant then claimed that Nain Singh (PW-20) got his account opened in


HDFC Bank and also got a cheque book which was shown to him.  It was


at his instance that the appellant was asked to sit at the computer centre


and his cheque book of the HDFC bank used to remain with  Nain Singh


(PW-20).     According   to   the   appellant,   Nain   Singh   (PW-20)   got   only   one


cheque signed by him and whenever he needed money, he used to take it


from Nain Singh (PW-20) in the sum of Rs.500/- to Rs.1,000/-.   He then


claimed   that   one   Chaman   Lal   in   Chandni   Chowk   and   one   Sardar   Ji   in


                                            88



Karol Bagh were also engaged in the business of money lending and the


appellant used to collect money from them on behalf of Nain Singh (PW-


20).  He then went on to suggest that on the birthday party of his son, Nain


Singh (PW-20) got him introduced to Inspector R.S. Bhasin (PW-168) and


Inspector   Ved   Prakash   (PW-173).     However,   he   persisted   in   demanding


money from Nain Singh (PW-20) on which Nain Singh (PW-20) used to get


annoyed and because of that, he got the appellant involved falsely in this


case.  He claimed that on 25.12.2000, Nain Singh (PW-20) called him from


his computer  centre  to  his house on  the plea that  Inspector R.S.  Bhasin


(PW-168)   and   Inspector   Ved   Prakash   (PW-173)   had   to   take   some


information   from   him   and   he   accordingly   came   to   the   said   house.


Thereafter, these two persons who were in plain clothes and had come to


the house of the appellant in a white maruti zen car took him to a flat in


Lodhi   Colony,   where   both   the   Inspectors   alongwith   one   Sikh   Officer


interrogated   the   appellant   about   his  entire   background   and   thereafter   he


was dropped to his house by the same persons.  Nain Singh (PW-20) was


not present at that time, but his wife informed him about the telephonic call


received   from   his   in-laws   at   Ghazipur   regarding   dinner   in   the   evening.


Thereafter, he took a bus and reached the house of his in-laws and asked


them whether they had made a call which they denied to have made.  He


claimed   to   have   finished   his   dinner   by   10.00   pm   when   the   police   party


raided   the   house.     The   appellant   stated   that   the   police   party   threatened


                                              89



him that if he spoke much, he will  be shot dead and his signatures were


obtained on a blank paper.  Then he was tortured and was constantly kept


in   the   custody   of   Inspector   R.S.   Bhasin   (PW-168),   S.I.   Murugan   and


Constable Jai Parkash.  He then admitted to have put his signatures on the


blank   paper   under   the   fear   of   torture   to   himself   and   his   sister-in-law,


mother-in-law and brother-in-law.  He further said that he did not know any


other   accused   excepting   his   wife   Rehmana   Yusuf   Farukhi.     He   claimed


that he was implicated in this case only because he is a Pakistani national.




57.     All this would go to suggest that Nain Singh (PW-20) had a very vital


part to play in his (appellant) being brought to India and being established


there.     Very   strangely,   all   this   long   story   runs   completely   counter   to   the


cross-examination   of   Nain   Singh   (PW-20),   as   has   already   been   pointed


out.   In his cross-examination, the whole effort on the part of the defence


was to show that the appellant was never a tenant of Nain Singh (PW-20)


and had never stayed at his place, whereas  his defence was  completely


contrary   to   this   theory   wherein   the   appellant   has   claimed   that   he   was


intimately   connected   with   Nain   Singh  (PW-20),  inasmuch   as,  he  used  to


look after his accounts and used to assist him for recovery of the amounts


loaned   by   Nain   Singh   (PW-20)   to   various   other   people.     The   learned


counsel did not even distantly suggest to PW-20 Nain Singh the long story


stated by the appellant in his statement under Section 313 Cr.P.C.  There


                                            90



is not even a hint about the role played by Sanjeev Gupta in Nepal or the


amounts allegedly sent by Sanjeev Gupta to Nain Singh (PW-20) and Nain


Singh   (PW-20)   having   refused   to   part   with   the   amount   in   favour   of   the


appellant.     There   is   nothing   suggested   to   Nain   Singh   (PW-20)   that   the


appellant   was   working   for   the   X-Branch,   RAW,   much   less   since   1997,


while he was in Pakistan.   The learned defence counsel Ms. Jaiswal very


vociferously argued that Nain Singh (PW-20) was  actually working for an


organization "RAW".  She also pointed out that a clear cut suggestion was


given   about   his   RAW   activities   and   his   being   a   member   of   RAW,  in   his


cross-examination.     She   also   pointed   out   that   there   was   some


contradiction   in   the   statement   of   Nain   Singh   (PW-20)   and   Adam   Malik


(PW-31) about letting out the house to the appellant.   Much was made of


the fact that Nain Singh (PW-20) refused to disclose his identity and shown


the identity card only to the Court.  From all this, the learned counsel tried


to argue that Nain Singh (PW-20) was a RAW agent and was also involved


in   business   of   money   lending.     She   also   pointed   out   that   though   Nain


Singh   (PW-20)   claimed   that   the   accused   had     vacated   the   house,   the


evidence   disclosed   that   the   appellant   stayed   at   Nain   Singh's   house   till


December.  She also pointed to the contradictory statement made by Gian


Chand Goel (PW-21).   According to the learned counsel, while earlier the


witness   said   that   the   house   was   let   out   to   Rashid   Ali   (PW-232)   on


6.12.2000 and the appellant used to meet him, later on in the same para,


                                              91



he said that the appellant and Rashid Ali (PW-232) both, were his tenants.


Then   the   said   witness   claimed   in   his   further   cross-examination   that   the


appellant was his only tenant.  From all this, the learned counsel urged that


there   was   a   very   deep   possibility   of   Nain   Singh   (PW-20)   being   a   RAW


agent   and   as   such   having   given   shelter   to   the   appellant   and   that   the


appellant stayed throughout in Nain Singh's house only.  Very significantly,


this claim of the learned defence counsel goes completely counter to the


cross-examination   where   the   only   suggestion   given   is   that   the   appellant


was never a tenant of Nain Singh (PW-20) and never stayed at his house.




58.     The   learned   counsel   also   invited   our   attention   to   the   evidence   of


Aamir Irfan (PW-37), Yunus Khan (PW-4) as also Ved Prakash (PW-173).


We   have   considered   all   these   contentions   but   we   fail   to   follow   the


interesting defence raised by the appellant in his statement under Section


313 Cr.P.C. and complete contradictory stand taken while cross-examining


Nain Singh (PW-20).  We also find nothing in the long story woven by the


appellant in his statement under Section 313 Cr.P.C. about his activities as


a RAW agent and about his being sent to Nain Singh (PW-20) by Sanjeev


Gupta   from   Nepal.     We  do   find   that   there   was   reluctance   on   the   part   of


Nain Singh (PW-20) to show his identity card which he only showed to the


Court, but that does not, in any manner, help the defence case.  Even if it


is   accepted   that   Nain   Singh   (PW-20)   was   working   for   RAW,   it   does   not


                                                92



give credence to the defence theory that it was Nain Singh (PW-20) who


brought   the   appellant   in   India,   arranged   for   his   stay,   took   his   services,


arranged   for   his   computer   centre   and   then   ultimately,   falsely   got   him


implicated.   In the absence of any such suggestion having been made to


Nain   Singh   (PW-20),   the   tall   claims   made   by   the   defence   cannot   be


accepted.     We   have   considered   the   evidence   of   all   these   witnesses,


namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37),


Yunus   Khan   (PW-4)   and   Ved   Prakash   (PW-173),   but   the   same   do   not


persuade us to accept the defence theory.  It is obvious that the appellant


was   staying   with   Nain   Singh   (PW-20)   for   some   time   and   then   used   to


interact  with  the  other tenants  like Rashid  Ali  (PW-232) and  Adam  Malik


(PW-31)   and   at   that   time,   he   claimed   to   be   belonging   to   Jammu   and


claimed   to   be   in   the   business   of   selling   shawls.     It   is   during   that   period


alone   that   he   got   married   to   Rehmana   Yusuf   Farukhi   barely   a   fortnight


prior to the incident at the Red Fort.  We, therefore, reject the argument of


Ms. Kamini Jaiswal on this aspect.




59.     This   takes   us   to   the   various   bank   transactions   which   throw   much


light.   Prosecution had claimed that when the diary was recovered on the


arrest   of   the   appellant,   the   investigating   agency   found   one   telephone


number   belonging   to   Sher   Zaman   @   Shabbir   who   was   found   to   be   an


Afghan   national   and   according   to   the   prosecution,   he   used   to   supply


                                             93



Hawala   money   to   the   appellant.     According   to   the   prosecution,   the


appellant used to deposit the money so received in his own account with


HDFC   Bank,   opened   on   the   basis   of   fake   documents.     He   also   used   to


deposit this money in two  bank accounts of Nazir Ahmad Qasid (original


accused   No.   3)   and   Farooq   Ahmed   Qasid   (original   accused   No.   4).


According   to   the   prosecution,   this   money   which   the   appellant   used   to


deposit   in   the   account   of   Nazir   Ahmad   Qasid   (A-3)   and   Farooq   Ahmed


Qasid (A-4) was distributed to the other terrorists in Srinagar.  Ms. Jaiswal,


learned   counsel   appearing   on   behalf   of   the   appellant,   claimed   that   the


prosecution had not been able to prove the link in between Sher Zaman @


Shabbir and the appellant.   According to her, the claim of the prosecution


that Rs.29,50,000/- was  deposited in the accounts of M/s. Nazir & Sons,


Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18)   was   also   not


established.  The learned counsel argued that the prosecution was able to


barely   prove   deposit   of   Rs.5   lakhs,   in   the   account   of   appellant   but   had


failed   to   prove   that   the   appellant   had   deposited   Rs.   29,50,000/-   in   other


accounts.     According   to   the   learned   counsel,   even   this   claim   of   the


prosecution that was based on the evidence of handwriting expert, was not


properly   proved.     The   learned   counsel   also   pointed   out   that   while   Nazir


Ahmad   Qasid   (A-3)   and   Farooq   Ahmed   Qasid   (A-4)   were   acquitted,   the


others including Sher Zaman @ Shabbir (A-13), Zahur Ahmad Qasid (A-


17), Bilal Ahmad Kawa (A-18) or Athruddin @ Athar Ali (A-19) were never


                                              94



brought to the trial as they were shown to be absconding.  At this juncture,


we   cannot   ignore   the   evidence   of   Kashi   Nath   (PW-46),   an   employee   of


MTNL   (PW-46),   who   deposed   that   telephone   number   3969561   was


installed by him in premises No. 5123 which was the office of Sher Zaman


@  Shabbir  (A-13).   Very significantly,  this number was  also found in the


call details of the appellant having Mobile No. 9811278510.   This version


of Kashi Nath (PW-46) was corroborated by Om Prakash (PW-47).  Again


Idrish (PW-74) deposed that the cash of Rs.1,01,000/- was recovered from


the  shop/office   of   Sher  Zaman   @  Shabbir  (A-13),   which  shop/office  was


raided pursuant to the statement of the appellant.




60.     First,   the   fact   that   Sher   Zaman   @   Shabbir   (A-13),   Zahur   Ahmad


Qasid   (A-17)   and   Bilal   Ahmad   Kawa   (A-18)   being   absconding,   does   not


and   cannot   in   any   manner   establish   the   defence   case   to   the   effect   that


these   persons   were   never   concerned   with   Hawala   money   through   the


appellant or otherwise.  As regards the Sher Zaman @ Shabbir (A-13), the


investigating agency could not have reached the shop of Sher Zaman @


Shabbir (A-13) unless the claim of the investigating agency that they found


his   number   in   the   diary   is   true.     The   fact   of   the   matter   is   that   the


investigating agency did reach his shop as mentioned in the earlier part of


this   judgment.     Therefore,   it   cannot   be   disputed   that   the   appellant   had


some   connection   with   Sher   Zaman   @   Shabbir   (A-13)   who   was   then


                                               95



established   to   be   an   Afghan   national   and   who   remained   absconding   till


date.   The learned counsel for the defence also argued that Nazir Ahmad


Qasid   (A-3)  and   Farooq  Ahmed   Qasid  (A-4)  have   been  acquitted  by the


High Court and that there is no appeal by the State against their acquittal.


That   may  be   true,   but   that   would   be   a  separate   subject.     At   least   prima


facie,   that   does   not   help   the   appellant   at   all.     We   will   go   through   the


reasons for acquittal, after we have considered the evidence regarding the


bank transactions.  We will consider this evidence now in details.




61.     It has come in the evidence that the appellant opened an account on


13.9.2000   with   HDFC   Bank,   New   Friends   Colony,   New   Delhi,   where   his


address was  given as 102, Kaila Bhatta, Ghaziabad.   The other address


was given as 18, Gaffur Nagar, Okhla, New Delhi.   The document on the


basis   of   which   this   account   was   opened   was   the   driving   license   of   the


appellant.     The   first   thing   that   comes   to   our   mind   is   that   both   these


addresses were false.  While the appellant had never stayed at 102, Kaila


Bhatta, Ghaziabad, his address 18, Gaffur Nagar, Okhla, New Delhi was


totally incorrect.  It has come by way of evidence of Sushil Malhotra (PW-


210) that on the cash memo of the fees, the appellant wrote his address as


18,   Gaffur   Nagar,   Okhla,   New   Delhi.     In   fact,   the   appellant   had   never


resided on this address, the date of the cash memo being 28.3.2000.  The


prosecution had also examined Iqbal Hassan (PW-79) who had confirmed


                                                96



that   no   such   person   has   ever   lived   in   this   house,   particularly,   on   the


relevant dates.  Insofar as his learning license is concerned, the appellant


has   given   his   address   as   B-17,   Jangpura.     On   that   basis,   he   got   his


learning license from Sarai Kale Khan Authority.   He has never stayed in


this   address   either.     It   has   also   come   in   the   evidence   of   Inspector   S.K.


Sand (PW-230) that learner's license bearing address B-17, Jangpura was


fake  and  he further asserted that  the  area of Jangpura  never falls under


the   authority   of   RTO,   Sarai   Kale   Khan.     There   is   a   report   of   the   Motor


licensing   authority   vide   Exhibit   PW-230/C   that   the   learner's   license   was


fake.   All this was confirmed by Narayan Singh (PW-6), UDC, Sarai Kale


Khan Authority and Ajit Singh Bajaj (PW-52).  Insofar as driving license is


concerned,   there   is   evidence   of   Hazarul   Hasan,   RTO   Office,   Ghaziabad


that   this   driving   license   was   issued   from   Ghaziabad   in   favour   of   the


appellant   through   Ms.   Mamta   Sharma   (PW-16),   ARTO   vide   Exhibit   PW-


13/A which is a copy of the driving license and Exhibit PW-22/C which is


also   a   copy   of   the   driving   license.     Significantly   enough,   for   this,   the


address   was   shown   to   be   102,   Kaila   Bhatta,   Ghaziabad.     This   was   for


reason   that   unless   the   appellant   had   shown   himself   a   resident   of


Ghaziabad,   he   could   not   have   got   the   driving   license   issued   through


Ghaziabad authority.   Therefore, his address found on the driving license


as 102, Kaila Bhatta, Ghaziabad was itself a false address.   This address


was   on   the   basis   of   the   ration   card   which   was   a   fake   ration   card   in   the


                                            97



name  of  appellant's   wife  Bano,   who   was   allegedly  residing  at  102,  Kaila


Bhatta, Ghaziabad.  All this was proved to be false by Azad Khalid (PW-1),


Yashpal   Singh,   Supply   Inspector,   Department   of   Food   and   Supply,


Ghaziabad   (PW-2)   and   Rajbir   Singh,   Area   Rationing   Officer,   Food   and


Civil Supply Department, Ghaziabad (PW-3).  There is another ration card


which he got prepared in which his wife's name was shown as Mrs. Bano


alongwith   children.     The   address  of   this  ration   card   was   shown  to  be  F-


12/12,   Batla   House,   Okhla,   New   Delhi,   where   he   never   resided.


Therefore, on the basis of his driving license, when he got his HDFC Bank


account   opened,   it   is   obvious   that   he   had   given   false   information,   much


less   regarding   his   residential   address   which   was   also   mentioned   on   his


driving license and which was not true.




62.    The prosecution proved 9 cash deposit slips of Grindlays Bank, the


total   amount   being   Rs.29,50,000/-.     According   to   the   prosecution,   these


were   in   appellant's   handwriting   while   depositors'   name   has   been


mentioned   as   Aslam,   Salim   Khan,   R.K.   Traders   and   Rashid.     We   have


already   discussed   about   the   fake   residential   address   given   by   the


appellant while opening the account with HDFC Bank.   The details of this


account were proved by Sanjeev Srivastava (PW-22).  He proved Exhibits


PW-22/B, C and F.  Exhibit PW-22/F is a copy of the account statement of


Rehmana,   the   wife   of   the   accused   which   suggests   that   from   15.9.2000


                                             98



onwards   upto   14.12.2000,   on   various   dates,   amounts   like   Rs.10,000/-,


Rs.40,000/-, Rs.50,000/-, Rs.1,50,000/-, Rs.2,00,000/- etc. were deposited


in   cash.     The   total   amount   deposited   was   Rs.5,53,500/-.     There   is


absolutely   no   explanation   by   the   appellant   about   the   source   from   which


these amounts came.  Corroborating evidence to the evidence of Sanjeev


Srivastava (PW-22) is in the shape of Rishi Nanda (PW-23) and Inspector


Ved Prakash (PW-173).  Ved Prakash (PW-173) had found the ration card


in   the   name   of   the   appellant,   his   driving   license,   cheque   book   of   HDFC


Bank in his name, Passport of Rehmana (wife of the appellant), a cheque


book of State Bank of India, a digital diary and a personal diary and some


other   documents.     From   these,   Ved   Prakash   (PW-173)   found   that   there


were   three   accounts,   namely,   in   Standard   Chartered   Bank,   Connaught


Place, New Delhi in the names of M/s. Nazir & Sons, Farooq Ahmed Qasid


(A-4)   and   Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers


32263962,   28552609   and   32181669   respectively.     He   also   detected


account   number   0891000024322  in  HDFC   Bank  which   was  opened  with


the help of the driving license.  Another witness S.I. Harender Singh (PW-


194) had prepared the memo of house search.  P.R. Sharma (PW-9), who


was   from   State   Bank   of   India,   deposed   that   account   no.   5817   was


belonging   to   Rehmana   Yusuf   Farukhi   in   which   amounts   of   Rs.50,000/-,


Rs.1,50,000/-,   Rs.52,500/-   and   Rs.30,000/-   were   deposited.     He   proved


the   relevant   deposit   slips   also.     Another   witness   O.P.   Singh   (PW-64)


                                             99



corroborated   the   evidence   of   P.R.   Sharma   (PW-9).     The   most   important


link   with   the   HDFC   account   as   also   with   the   deposit   slips   of   Standard


Chartered   Grindlays   Bank   came   to   light.   Dr.   M.A.   Ali   (PW-216),   SSO,


CFSL, CBI, New Delhi, on the basis of his report, deposed that the account


opening form of HDFC Bank of the appellant, 9 deposit slips of Standard


Chartered Grindlays Bank as also deposit slips of the State Bank of India


account of Rehmana Yusuf Farukhi bore the handwriting of the appellant.


This clinches the issue about the account opened in HDFC Bank.   It is to


be noted that there were three accounts in Standard Chartered Grindlays


Bank in the name of M/s. Nazir & Sons, Farooq Ahmed Qasid (A-4) and


Bilal   Ahmad   Kawa   (A-18)   which   had   account   numbers   32263962,


28552609 and 32181669 respectively.  The investigating agency collected


the documents from Standard Chartered Grindlays Bank including 9 cash


deposit   receipts   as   also   documents   regarding   the   account   numbers


32263962, 28552609 and 32181669.  9 cash deposit slips are purportedly


in the name of Aslam, Salim Khan, R.K. Traders and Rashid and all these


have   been   proved   to   be   in   the   handwriting   of   the   appellant.     We   have


already discussed about the account of HDFC Bank which was opened on


the   basis   of   the   driving   license   having   a   false   address.     We   have   also


referred to the bank documents in respect of Rehmana Yusuf Farukhi and


the   amounts   having   been   deposited   in   her   account   and   also   the   pay-in


(deposit)  slips in respect of her  accounts.   It must be  noted that at least


                                                10



one document out of these being questioned document No. 30B has been


proved to be in the handwriting of the appellant which has been proved by


the expert evidence of Dr. M.A. Ali (PW-216).  We have already referred to


the evidence of Ved Prakash (PW-173) and S.I. Harender Singh (PW-194)


about the amounts belonging to the appellant and about the amounts paid


by the appellant to the tune of Rs.29,50,000/- in the accounts of M/s. Nazir


&   Sons,   Farooq   Ahmed   Qasid   (A-4)   and   Bilal   Ahmad   Kawa   (A-18),


account   numbers   of   which   have   already   been   mentioned   above   and   the


fact   that   9   deposit   slips   were   in   the   handwriting   of   the   appellant.     It   has


come in the evidence of Subhash Gupta (PW-27) that he had handed over


photocopy of the account opening forms of the three accounts mentioned


above,   in   which   Rs.29,50,000/-   were   deposited   by   the   appellant,   to


Inspector   Ved   Prakash   (PW-173).     We   then   have   the   evidence   of   B.A.


Vani, Branch Manager, Standard Chartered Grindlays Bank, Srinagar, who


claimed   that   three   bank   accounts   mentioned   above   were   opened   during


his   tenure   and   in   his   branch   belonging   to   M/s.   Nazir   &   Sons,   Farooq


Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18).  He pointed out that the


amounts which were deposited in these accounts (by the appellant) were


further distributed by 40 original cheques by various persons.  He referred


to 3 cheques of Farooq Ahmed Qasid (A-4), 29 cheques of M/s. Nazir &


Sons and 8 cheques of Bilal  Ahmad  Kawa  (A-18).   There  is  evidence of


Kazi   Shams,   SHO,   Sadar,   Srinagar   (PW-99)   who   had   recovered   the


                                             10



cheque book of M/s. Nazir & Sons at the instance of Nazir Ahmad Qasid


(A-3)   and   Farooq   Ahmed   Qasid   (A-4).     We   also   have   the   evidence   of


Mohd. Riaz Ahmed, PA to DM, Badgam, J&K.  He deposed that there was


a   detention   order   passed   against   Nazir   Ahmad   Qasid   (A-3)   and   Farooq


Ahmed Qasid (A-4).   In the detention order, it was stated that both these


accused persons were  connected with  a foreign mercenary named Abbu


Bilal   and   they   agreed   to   receive   the   fund   from   `LeT'   outfit   in   separate


account opened at ANZ Grindlays  Bank, Srinagar and had also received


the first installment of Rs.3 lakhs in the account of Bilal Ahmad Kawa (A-


18),   which   money  was   withdrawn   by  him.   The   evidence  of  Hawa Singh


(PW-228)  is   to  the  effect  that   he  had   received  40  cheques  of  the   above


mentioned accounts, which evidence was  corroborated by S.I. Amardeep


Sehgal (PW-227) and S.I. Himmat Ram (PW-45).  It was Inspector Pratap


Singh (PW-86) who had found the account numbers of M/s. Nazir & Sons,


Farooq  Ahmed  Qasid  (A-4)  and  Bilal  Ahmad  Kawa (A-18) from the diary


seized   from   the   appellant.     Further,   the   evidence   of   Sanjeev   Srivastava,


Manager,   HDFC   Bank   (PW-22)   went   on   to   establish   that   it   was   the


appellant   who   had   opened  the  bank   account  in  the  New  Friends  Colony


Branch of the HDFC Bank on the basis of his driving license, in which an


amount of Rs.6 lakhs was deposited.   This evidence was corroborated by


Rishi   Nanda   (PW-23).     P.R.   Sharma   (PW-9),   Manager-SBI,   Ghazipur


spoke about the amounts received in the bank account of Rehmana Yusuf


                                            10



Farukhi.     This   evidence   was   corroborated   by   O.P.   Singh,   Manager-SBI,


Ghazipur   (PW-64).     It   has   already   been   mentioned   that   as   per   the


evidence   of   Dr.   M.A.   Ali   (PW-216),   the   account   opening   form   of   HDFC


Bank,   New   Friends   Colony   Branch   and   9   deposit   slips   of   Standard


Chartered   Grindlays   Bank,   Connaught   Place,   New   Delhi   as   also   the


deposit slip of State Bank of India account of Rehmana Yusuf Farukhi bore


the handwriting of the appellant.   The report is Exhibit PW-216/A at page


Nos. 1-11.




63.    The argument of Ms. Jaiswal, learned counsel appearing on behalf


of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid


(A-4) have already been acquitted, is of no consequence.   We may point


out that there is absolutely no explanation by the appellant either by way of


cross-examination   of   the   witnesses   or   by   way   of   his   statement   under


Section   313   Cr.P.C.   as   to   where   all   these   amounts   had   come   from   and


why did he deposit huge amounts in the three accounts mentioned above.


Rs.29,50,000/- is not an ordinary sum.   Also, there is no evidence that in


his   account   in   HDFC   Bank,   the   appellant   has   Rs.6   lakhs.     Further   very


sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in


her account in the State Bank of India.   How did the appellant receive all


these amounts and from where, are questions that remain unanswered in


the   absence   of   any   explanation   and   more   particularly   because   the


                                               10



appellant had no ostensible means of livelihood.  It would have to be held


that  the appellant  was  dealing with  huge sums of money and  he has no


explanation   therefor.     This   is   certainly   to   be   viewed   as   an   incriminating


circumstance against the appellant.  The silence on this issue is only telling


of   his   nefarious   design.     It   is   obvious   that   the   appellant   was   a   very


important   wheel   in   the   whole   machinery   which   was   working   against   the


sovereignty   of   this   country.     All   this   was   supported   with   the   fact   that   9


deposit   slips,   the   bank   forms   for   opening   the   accounts,   the   slip   through


which  amount   was  deposited   in  the  account  of  Rehmana   Yusuf   Farukhi,


were   all   proved   to   be   in   the   handwriting   of   the   appellant.     We   have


absolutely no reason to reject the evidence of handwriting expert.   All this


suggests that the appellant was  weaving his web  of terrorist activities by


taking   recourse   to   falsehood   one   after   the   other   including   his   residential


address and also creating false documents.




64.     Ms.   Jaiswal,   learned   defence   counsel   argued   that   merely   on   the


basis   of   the   evidence   of   the   hand   writing   expert,   no   definite   conclusion


could be drawn that it was the appellant who deposited all this money into


the   three   accounts   of   Nazir   Sons,   Bilal   Ahmad   Kawa   and   Faruk   Ahmad


Qasid.   She also urged that accused Nos. 3 and 4 were acquitted by the


Court.   We have already clarified earlier that the acquittal of Qasid would


be   of   no   consequence   for   the   simple   reason   that   they   may   have   been


                                             10



given   the   benefit   of   doubt   regarding   their   knowledge   about   the   said


amounts being deposited in their accounts or for that matter their dispatch


for   the   terrorist   activities.     Some   more   evidence   would   have   been


necessary for that purpose.   It is undoubtedly true that there should have


been an appeal against their acquittal.  However, that does not absolve the


appellant completely since he had to explain as to where he was receiving


money from for putting in the accounts of Qasid.  This circumstance of the


appellant in failing to explain the huge amount and its source would be of


immense importance and would go a long way to show that the accused


was receiving huge amounts from undisclosed sources.




65.    A  very lame explanation has been given  about the amounts in the


account  of  Rehmana.    It  was   suggested   that  the  monies  were   gifts  from


relatives   on   account   of   her   marriage.     Her   mother   DW-1   also   tried   to


suggest   the   same.     The   explanation   is   absolutely   false   for   the   simple


reason   that   there   is   no   proof   about   such   a   plea.   Everything   about   this


marriage is suspicious.  It is only on 8.12.2000 that the accused claims to


have   got   married   to   Rehmana.     It   was   under   mysterious   circumstances


and   in   a   secret   manner   that   the   accused   got   married   to   Rehmana.     Dr.


M.A.   Ali   (DW-216)   has   been   examined   by   the   prosecution   as   the   hand


writing expert who examined two pay-in-slips, namely, Exhibits PW-173/F


and PW-173/G.   The other documents which  were  given for examination


                                            10



were Q 29, Q30, Q30B, Q 30C, Q 31 and Q32 which are Exhibit PW 9/C to


F.   Out of these, some of the documents were seized from the bank vide


seizure memo Exhibit PW 9/A.   Document Nos.Mark Q 30 and 30 A and


Mark 30B have been proved to be particularly filled in the hand writing of


Mohd.   Arif   @   Ashfaq   and   partly   in   hand   writing   of   Rehmana.     This


suggests the amount of Rs.15,000/- has been deposited in the account of


Rehmana on 21.11.2000.   Similarly, document marked Q-6, Q-6A and Q-


6B were also proved to be in the hand writing of the appellant and partly in


hand writing of Rehmana.  Accused has no explanation to offer.  There can


be no dispute that the accused had been depositing huge amount into the


account of Rehmana.   Considering the dates on which the deposits were


made,   the   argument   of   the   learned   counsel   that   she   received   small


amounts by way of gifts for her marriage which had never taken place till


then, has to fall to ground.  Again, accused Rehmana was acquitted as the


prosecution   was   not   able   to   prove   that   she   had   been   a   party   to   the


conspiracy or knew about the conspiracy.   That however, cannot absolve


the appellant. The reluctance on the part of the prosecution to file appeal


against  her  acquittal  can  also  not help  the  accused.    It is  strange  that  a


person who is not even an Indian National and is a citizen of Pakistan got


into touch with this lady and got married to her on 8.12.2000 and before


that he should be depositing huge amounts into the accounts of Rehmana.


This   becomes   all   the   more   strange   that   Rehmana   had   no   reasonable


                                            10



explanation   for   receiving   these   amounts.     We,   therefore,   view   this


circumstance as an incriminating circumstance.  We entirely agree with the


High Court as well as the trial Court for the inferences drawn in respect of


these deposits made by the accused.




66.    Ms. Jaiswal  then severely criticized the finding of the Courts below


accepting the disclosures made by the appellant and the discoveries made


pursuant thereto.  The main discovery which the learned counsel assailed


was the statement in pursuance of which the whereabouts of Abu Shamal


were made known to the investigating agency. The learned counsel urged


that   no   disclosure   statement   was   recorded   immediately   after   the


apprehension of the accused.  She, therefore, urged that it could not have


been   held   by   the   Courts   below   that   the   information   regarding   the   Batla


house   and   Abu   Shamal   being   a   terrorist   in   hiding   on   that   address


proceeded from the appellant or that he had the knowledge thereof.   The


learned   counsel   basically   rests   her   contention   on   the   fact   that   before


accepting the fact that the accused gave some information in pursuance of


which some discoveries were made, the investigating agency must record


a statement and in the absence of such a statement, discovery cannot be


attributed to the accused.  Our attention was drawn to the evidence of PW-


229   who   deposed   that   a   statement   was   recorded   immediately   on   the


apprehension of the appellant. The date mentioned on Exhibit PW 148 E is


                                              10



26.12.2000.     According   to   the   learned   counsel   if   the   accused   was


apprehended on the early night of 25.12.2000 then the date on Exhibit PW


148   E   could   not   have   been   26.12.2000.     The   counsel   further   says   that


therefore   the   Batla   house   encounter   was   prior   to   recording   of   the


disclosure statement of the accused.  The contention is not correct.  It will


be   seen   that   immediately   after   the   apprehension   the   appellant   was   not


formally arrested, though he was in the custody of the investigating team.


The learned counsel pointed out that the witness's statement was that the


accused was "arrested" and his disclosure statement was recorded.   PW-


229 had undoubtedly stated so.  There is other evidence on record that his


statement was recorded.   It is indeed in that statement which is recorded


that he disclosed about his involvement in the Red Fort shoot out, the role


of   Abu   Shamal   and   about   an   AK-56   rifle.     The   witness   went   on   to   state


further   that   the   accused   disclosed   that   his   associate   Abu   Shamal   was


staying in the hide out at house No. G-73, first floor, Batla House, Okhla.


He also disclosed that he was having weapons and grenades and he also


disclosed   that   Abu   Shamal   is   a   trained   militant   of   LeT   and   member   of


suicide   squad.     Indeed,   had   this   information   not   been   disclosed


immediately   after   his   apprehension,   there   was   no   question   of   the


investigating   agency   coming   to   know   about   the   whereabouts   of   Abu


Shamal.    Indeed,  in pursuance of this information  given  the investigating


team   did   go   to   the   aforementioned   address   and   an   encounter   did   take


                                             10



place wherein Abu Shamal was killed and large amount of ammunition and


arms   were   found   at   that   place.     The   learned   counsel   urged   that   in   the


absence of any "recorded statement" immediately after his apprehension,


such discovery should not be attributed to the appellant.   For the sake of


argument,  we  will  assume that  no statement was  recorded  prior to Batla


House incident.  The learned counsel secondly urged that if admittedly the


accused appellant was formally arrested on the next day i.e. on 26th, then it


would   be   axiomatic   that   he   was   not   in   the   custody   of   the   police   and,


therefore, all that evidence should be rendered as inadmissible.




67.    It is indeed true that for normally proving any such information and


attributing   the   same   to   the   accused   the   said   accused   must   be   in   the


custody   of   the   prosecution   and   then   when   he   discloses   or   offers   to


disclose   any   information,   his   statement   is   recorded   by   the   investigating


agency for lending credibility to the factum of disclosure as also exactitude.


In pursuance of such information, the investigating agency proceeds and


obtains   the   material   facts   and   thereafter   executes   a   Panchnama   to   that


effect.  We have already referred to this question in the earlier part of our


judgment   that   it   was   indeed   a   very   tense   situation   requiring   extreme


diligence on the part of the investigating agency whereby the investigating


agency could not afford to waste a single minute and was required to act


immediately on the receipt of the information from the appellant.  This was


                                              10



all the more necessary because the investigating agency were dealing with


an  extremely dangerous  terrorist causing serious danger  to the safety of


the society.  We do not see anything wrong in this approach on the part of


the   investigating  agency.     The  only  question  is  whether  the   investigating


agency discovered something in pursuance of the information given by the


accused.   The events which followed do show that it is only in pursuance


of,   and   as   a   result   of   the   information   given   by   the   accused   that   the


investigating agency zeroed on the given address only to find a dreaded


terrorist like Abu Shamal holed up in that address with  huge ammunition


and the fire arms.  If that was so, then the question is as to whether we can


reject   this   discovery   evidence   merely   because,   as   per   the   claim   of


defence, a formal statement was not recorded and further merely because


a formal arrest was not made of the accused.




68.     Firstly   speaking   about   the   formal   arrest   for   the   accused   being   in


custody   of   the   investigating   agency   he   need   not   have   been   formally


arrested.     It   is   enough   if   he   was   in   custody   of   the   investigating   agency


meaning   thereby   his   movements   were   under   the   control   of   the


investigating agency.  A formal arrest is not necessary and the fact that the


accused was in effective custody of the investigating agency is enough.  It


has been amply proved that the accused was apprehended, searched and


taken   into   custody.     In   that   search   the   investigating   agency   recovered   a


                                             11



pistol   from   him   along   with   live   cartridges,   which   articles   were   taken   in


possession   of   the   investigating   agency.     This   itself   signifies   that


immediately   after   he   was   apprehended,   the   accused   was   in   effective


custody of the investigating agency.




69.    Now   coming   to   the   second   argument   of   failure   to   record   the


information, it must be held that it is not always necessary.  What is really


important   is   the   credibility   of   the   evidence   of   the   investigating   agency


about   getting   information/statement   regarding   the   information   from   the


accused.  If the evidence of the investigating officer is found to be credible


then   even   in the   absence  of  a  recorded   statement,  the  evidence   can  be


accepted   and  it   could  be   held  that  it   was   the  accused  who  provided   the


information on the basis of which a subsequent discovery was made.  The


question   is   that   of   credibility   and   not   the   formality   of   recording   the


statement.     The   essence   of   the   proof   of   a   discovery   under   Section   27,


Evidence  Act  is  only  that   it   should  be   credibly  proved   that   the   discovery


made   was   a   relevant   and   material   discovery   which   proceeded   in


pursuance of the information supplied by the accused in the custody.  How


the prosecution proved it, is to be judged by the Court but if the Court finds


the fact of such information having been given by the accused in custody is


credible   and   acceptable   even   in   the   absence   of   the   recorded   statement


and   in   pursuance   of   that   information   some   material   discovery   has   been


                                             11



effected then the aspect of discovery will not suffer from any vice and can


be   acted   upon.     Immediately   after   the   apprehension   of   the   appellant   he


spilled the information.   In pursuance of that information the investigating


agency acted with expediency and speed which in the circumstances then


prevailing   was   extremely   necessary   nay   compulsory.     Any   investigating


agency in such sensational matter was  expected not to waste  its time in


writing down  the Panchnama and memorandum.   Instead they had to be


on a damage control mode.  They had a duty to safeguard the interests of


the society also.   Therefore, if the investigating agency acted immediately


without wasting its time in writing memoranda of the information given by


the   accused,   no   fault   could   be   found.     Ultimately,   this   timely   and   quick


action yielded results and indeed a dreaded terrorist was found holed up in


the   address  supplied  by  the  appellant-accused  with   sizeable   ammunition


and   fire   arms.     We   do   not,   therefore,   find   any   thing   wrong   with   the


discovery even if it is assumed that the information was not "recorded" and


hold   that   immediately   after   his   apprehension,   the   accused   did   give   the


information which  was  known to him alone in pursuance of which  a very


material  discovery was  made.    The  learned  Solicitor  General relied  on  a


reported   decision   in  Suresh   Chandra   Bahri   v.   State   of   Bihar   [Cited


supra].    In   that   case,   no   discovery   statement   was   recorded   by   the


investigating  officer PW  -59 Rajeshwar  Singh  of the information  supplied


by the accused to him.   Further, no public witness  was  examined by the


                                              11



prosecution  to  support  the   theory  that  such  an   information  was  given   by


the   accused   to   him   in   pursuance   of   which   some   material   discovery   was


made.     This   Court,   however,   in   spite   of   these   two   alleged   defects,


accepted   the   evidence   of   discovery   against   the   accused   on   the   basis   of


the evidence of Rajeshwar Singh PW-59.  The Court mentions:




               "It   is   true   that   no   disclosure   statement   of   Gurbachan

               Singh who is said to have given information  about the

               dumping   of   the   dead   body   under   the   hillock   of   Khad

               gaddha   dumping   gfdound   was   recorded   but   there   is

               positive statement of Rajeshwar Singh, PW 59, Station

               House   Officer   of   Chutia   Police   Station   who   deposed

               that during the course of investigation Gurbachan Singh

               Led   hhim   to   Khad   Gaddha   hillock   along   with   an

               Inspector Rangnath Singh and on pointing out the place

               by   Gurbachan   Singh   he   got   that   place   unearthed   by

               labourers where a piece of blanket, pieces of saree and

               rassi   were   found   which   were   seized   as   per   seizure

               memo Ext.5.  He further deposed that he had taken two

               witnesses   along   with   him   to   the   place   where   these

               articles   were   found.     Rajeshwar   Singh   PW   59   was

               cross-examined   with   regard   to   the   identity   of   the

               witness Nand Kishore who is said to be present at the

               time of recovery  and seizure  of the articles  as  well as

               with   regard   to   the   identity   of   the   articles   seized   vide

               paragraphs 18, 21 and 22 of his deposition but it may

               be pointed out that no cross-examination was directed

               with   regard   to   the   disclosure   statement   made   by   the

               appellant Gurbachan Singh or on the point that he led

               the   police   party   and   others   to   the   hillock   where   on   hi

               pointing   out,   the   place   as   unearthed   where   the

               aforesaid articles were found and seized.  It is true that

               no public witness was examined  by the prosecution in

               this behalf but the evidence of Rajeshwar Singh PW59

               does not suffer from any doubt or infirmity with regard to

               the   seizure   of   these   articles   at   the   instance   of   the

               appellant   Gurbachan   Singh   which   on   TI   Parade   were


                                               11



                found to be the articles used in wrapping the dead body

                of Urshia."





        The   court   then   stated   in   paragraph   71   that  the   two   essential


requirements of application of Section 27 of Evidence Act are that (1) the


person   giving   information   was   accused   of   any   offence;   and   (2)   he   must


also   be   in   police   custody.    The   Court   then   went   on   to   hold   that   the


provisions of Section 27 of the Evidence Act are based on the view that if


the fact is actually discovered in consequence of information given, some


guarantee is afforded thereby that the information is true and consequently


the said information can safely be allowed to be given in evidence because


if such an information is further fortified and confirmed by the discovery of


articles  or   the   instrument   of  crime   and  which   leads   to  the   belief   that   the


information about the confession made as to the articles of crime cannot


be false. This is precisely what has happened in the present case.  Indeed,


the   appellant   was   accused   of   an   offence   and   he   was   also   in   the   police


custody.  We have already explained the ramifications of the term "being in


custody".     This   judgment   was   then   followed   in  Vikram   Singh   &   Ors   v.


State of Punjab [2010 (3) SCC 56]  when again the Court reiterated that


there   was   no   need   of   a   formal   arrest   for   the   applicability   of   Section   27.


The Court therein took the stock of the case law on the subject and quoted


from the decision of State of U.P. v. Deoman Upadhyaya  [AIR 1960 SC


                                               11



1125] regarding the principles involved in Sections 24 to 30, Evidence Act


and  more   particularly  Sections  25,   26   and   27   of  the   Evidence   Act.    The


Court ultimately held in case of Deoman Upadhyay (cited supra) that the


expression `accused of any offence' in Section 27 as in Section 25 is also


descriptive of the person concerned i.e. against a person who is accused


of  an  offence.   Section  27  renders  provable  certain statements  made by


him while he was in the custody of a police officer.  Section 27 is founded


on the principle that even though the evidence relating to the confessional


or   other   statements   made   by   a   person   while   he   is   in   the   custody   of   the


police   officer,   is   tainted   and,   therefore,   inadmissible   if   the   truth   of   the


information given by him is assured by the discovery of a fact, it may be


presumed   to  be   untainted   and,  therefore,   declared   provable  insofar   as  it


distinctly relates to the fact thereby discovered.  The Court also pointed out


the distinction between Sections 27 and 26, Evidence Act in para 40 of the


judgment   of  Vikaram   Singh   (cited   supra).    The   Court   came   to   the


conclusion that the principle that Section 27 would be provable only after


the formal arrest under Section 46 (1) of the Code could not be accepted.


It may be mentioned here that even in the decision in State (NCT of Delhi)


v.   Navjot   Sandhu   @   Afsan   Guru   [2005   (11)   SCC   600]   relying   on   the


celebrated decision of  Pulukuri Kottaya v. King Emperor  [AIR 1947 PC


67],   the   Court   held   "we   are   of   the   view   that  Pulukuri   Kottaya   (cited


supra)  case   is   an   authority   for   the   proposition   that   'discovery   of   fact'


                                             11



cannot be equated to the object produced or found. It is more  than that.


The discovery of fact arises by reason of the fact that the information given


by the accused exhibited the knowledge or the mental awareness of the


informant as to its existence at a particular place". This   is   precisely   what


has happened in this case.   It is only because of the discovery made by


the appellant that Abu Shamal with the arms and ammunition was found at


the address disclosed by the appellant.




70.    Ms. Kamini Jaiswal, learned counsel appearing for the appellant also


severely   attacked   the   discovery   made   and   recorded   on   the   morning   of


26.12.2000.     By   that   discovery,   the   appellant   had   given   the   information


about the whole plot, with which we are not concerned, but in addition to


that, he had showed his readiness to point out the AK-56 rifle which was


thrown immediately after the attack, behind the Red Fort.  In pursuance of


that,   the   appellant   proceeded   alongwith   the   investigating   party   and   then


from the spot that he had shown, AK-56 rifle was actually found.   Even a


bandolier   was   found   containing   hand   grenades.     The   learned   counsel


argued that this was a farcical discovery and could not be attributed to the


appellant, as in fact, immediately after the attack on 22.12.2000, the police


party had covered the whole area not only during the darkness of the night


on   22.12.2000,   but   also   in   the   following   morning.     She   pointed   out   that


sniffer   dogs   were   also   used   at   that   time   for   searching   the   suspected


                                               11



terrorists   either   hiding   out   or   leaving   any   trace.     From   this,   the   learned


counsel argued that it is impossible that the investigating agency could not


have seen the said rifle and it was impossible that such an important article


like   AK-56   rifle   and   bandolier   would   go   unnoticed   by   the   investigating


agency.     She,   therefore   pointed   out   that   this   was   nothing   but   a   poor


attempt   on   the   part   of   the   investigating   agency   to   plant   the   rifle   and   to


attribute the knowledge of that rifle falsely to the appellant.   In the earlier


part  of the judgment, we have  already discussed the evidence regarding


this discovery where we have referred to the evidence of Inspector Hawa


Singh   (PW-228),   S.I.   Satyajit   Sarin   (PW-218)   and   SHO   Roop   Lal   (PW-


234), who all supported the discovery.   This discovery was recorded vide


Exhibit PW-148/E.  S.I. Satyajit Sarin (PW-218) corroborated the evidence


of Inspector Hawa Singh (PW-228) and prepared a seizure memo (Exhibit


PW-218).   S.I. Amardeep Sehgal (PW-227) also corroborated the version


given by Inspector Hawa Singh (PW-228) and S.I. Satyajit Sarin (PW-218).


Two  other  witnesses,   namely,   S.K.   Chadha  (PW-125)   and   N.B.   Bardhan


(PW-202)   were   also   present   who   inspected   the   AK-56   rifle   found   at   the


instance   of   the   appellant.     The   learned   counsel   pointed   out   that   if   the


sniffer dogs were taken there for searching, it would be impossible that the


investigating agency would  not find the AK-56 rifle which  was  lying  quite


near to the spot from where the chit and the currency notes were picked up


by the investigating agency.  In the first place, there is definite evidence on


                                              11



record   that   the   sniffer   dogs   were   not   taken   to   the   spot   from   where   the


polythene   packet   containing   chit   and   currency   notes   was   recovered.


Inspector   Hawa   Singh   (PW-228)   is   the   witness   who   specifically   spoke


about   the   dog   squad   not   having   been   taken   to   that   spot.     We   are   not


impressed by this argument that the investigating agency had already seen


the  said   rifle  but  had  chosen   to  plant  it  against   the   appellant.     Even  the


evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was


not taken to the back of the Red Fort.  SHO Roop Lal (PW-234) also stated


that the Sunday Bazar was also not allowed to be held on 22.12.2000.  We


have no reason to discard this evidence.   That apart, we do not see any


reason why the investigating agency would plant the aforementioned AK-


56   rifle,   bandolier   and   hand   grenades   therein,   without   any   rhyme   or


reason.   True, they were interested in the investigation, but that does not


mean that  they were  out  to falsely implicate the  appellant.   This is  apart


from the fact that police officers could not have procured a foreign made


AK-56   rifle   and   the   foreign   made   grenades   on   their   own   to   be   foisted


against the appellant.   No such cross-examination appears to have been


done on those police officers.  It is also difficult to accept the argument that


anybody   could   have   found   the   rifle   which   was   lying   in   the   thick   bushes.


There   is   evidence   on   record   that   the   backside   of   the   Red   Fort   had


substantially thick bushes.  Once the police officers had found the chit and


the currency notes which gave them a definite direction to proceed in their


                                                11



investigation, it was  not likely that the police officers would visit that spot


again and that is what had happened.  We are also of the opinion that this


discovery was fully proved, in that, the appellant had given the information


that   it   was   Abu   Shamal   @   Faisal   who   had   thrown   that   rifle   in   his  bid   to


escape from the spot where the bloody drama was performed, resulting in


death   of   three   persons.     Even   earlier   to   this   discovery,   Abu   Shamal   @


Faisal   was   eliminated   in   encounter   and   he   was   found   with   substantial


quantity   of   firearm   and   ammunition.     We,   therefore,   see   no   reason   to


accept the defence contention that this discovery was a fake discovery.




71.     Insofar   as   third   discovery   was   concerned,   it   was   of   the   hand


grenades,   which   the   appellant   discovered   on   1.1.2001.     The   learned


counsel did not even attempt to say that there was anything unnatural with


this recovery except that the appellant was all through in the custody and


could   have   been   treated   roughly   for   effecting   this   discovery   of   the


grenades.    There is nothing to support this version.   Thus,  the discovery


statements   attributed   to   the   appellant   and   the   material   discovered   in


pursuance   thereof   would   fully   show   the   truth   that   the   appellant   was


involved in the whole affair.   The discovery of hand grenades behind the


computer centre near Jamia Millia Islamia University was very significant.


So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the


Hawala   dealer,   as   also   the   documents   discovered   therefrom,   show   the


                                                11



involvement   of   the   appellant   in   the   whole   affair.     In   this   behalf,   we   fully


endorse   the   finding   of   the   High   Court.     About   these   discoveries,   one


another   complaint   by   the   learned   defence   counsel   was   that   no   public


witnesses were associated.   In fact, there is ample evidence on record to


suggest   that   though   the   investigating   agency   made   the   effort,   nobody


came   forward.     This   was   all   the   more   so,   particularly   in   case   of   the


recovery  of  pistol   from  the  appellant   as  also  the  discoveries  vide  Exhibit


PW-148/E.




72.     We have seen the evidence as also the so-called explanations given


by the appellant in his statement under Section 313 Cr.P.C.  We are of the


clear opinion that the detailed statement which he gave at the end of the


examination was a myth and remained totally unsubstantiated.   We have


also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and


we are of the clear opinion that even that evidence has no legs to stand.


Ms.   Qamar   Farukhi   (DW-1)   spoke   about   the   marriage   of   her   daughter


Rehmana Yusuf Farukhi to the appellant.  She deposed that the appellant


had expressed his desire to marry Rehmana after reading the matrimonial


advertisement.     She   asserted   that   her   relatives   contributed   for   the


marriage and she had continued giving her money to Rehmana.  There is


nothing much in her cross-examination either.   She admitted that moneys


were paid into the account of Rehmana.   She admitted that it was told to


                                             12



the appellant that Rehmana was  suffering from Spinal Cord problem and


was not fit for consummation of marriage.  It is really strange that inspite of


this, the appellant should have got married to Rehmana.   Very strangely,


the  lady completely denied that she  even knew that  the appellant  was   a


resident of Pakistan.  Much importance, therefore, cannot be given to this


defence   witness.     The   High   Court   has   held   proved   the   following


circumstances against the appellant:-




      "(a)     On   the   night   of   22-12-2000   there   was   an   incident   of   firing

               inside   the   Lal   Quila   when   some   intruders   had   managed   to

               enter   that   area   of   Lal   Quila   where   the   Unit   of   7   Rajputana

               Rifles of Indian Army was stationed.


      (b)      In   that   incident   of   shooting   the   intruders   had   fired

               indiscriminately   from   their   AK-56   rifles   as   a   result   of   which

               three   army   jawans   received   fire-arm   injuries   and   lost   their

               lives.


      (c)      The death of three army jawans was homicidal.


      (d)      Immediately   after   the   quick   reaction   team   of   the   army   fired

               back   upon   the   intruders   as   a   result   of   which   the   intruders

               escaped from the place of occurrence by scaling over the rear

               side   boundary   wall   of   Lal   Quila   towards   the   Ring   Road   side

               and   when   the   place   of   occurrence   was   searched   by   the

               armymen   many   assault   rifle   fired   cartridge   cases   were

               recovered from the place of occurrence.


      (e)      Immediately   after   the   intruders   who   had   resorted   to   firing

               inside   the   army   camp   had   escaped   from   there   calls   were

               made   by   someone   on   the   telephones   of   two   BBC

               Correspondents one of whom was stationed at Sri Nagar and

               the   other   one   was   stationed   at   Delhi   office   of   BBC   and   the

               caller   had   informed   them   about   the   shooting   incident   inside

               the   Lal   Quila   and   had   also   claimed   the   responsibility   of   that

               incident  and that that was  the job of Lashkar-E-Toiba,  which


                                      12



        the   prosecution   claims   to   be   a   banned   militant   organization

        indulging in acts of terrorism in our country.


(f)     On the morning of 23-12-2000 one AK-56 rifle was recovered

        from a place near Vijay Ghat on the Ring Road behind the Lal

        Quila.


(g)     On 23-12-2000 when the policemen conducted search around

        the   Lal   Quila   in   the   hope   of   getting   some   clue   about   the

        culprits   they   found   one   piece   of   paper   lying   outside   the   Lal

        Quila   near   the   rear   side   boundary   wall   towards   Ring   Road

        side   and   on   that   piece   of   paper   one   mobile   phone   number

        9811278510 was written.


(h)     The mobile phone number 9811278510 was used for making

        calls   to   the   two   BBC   correspondents(PWs   39   and   41)

        immediately   after   the   shooting   incident   inside   Lal   Quila   and

        the  caller had claimed  the responsibility for that incident  and

        had informed them that the incident was the job of Lashkar-e-

        Toiba.


(i)     The aforesaid mobile phone number found written on a piece

        of paper lying behind the Lal Quila had led the police up to flat

        no. 308-A Ghazipur, New Delhi where accused Mohd. Arif @

        Ashfaq was found to be living and when on being suspected of

        being   involved   in  the   shooting   incident  he   was  apprehended

        on   the   night   of   25/26-12-2000   one   pistol   and   some   live

        cartridges   were   recovered   from   his   possession   for   which   he

        did not have any license.


(j)     At the time of his arrest in case FIR No. 688/2000 one mobile

        phone   having   the   number   9811278510   was   recovered   from

        his   possession   and   it   was   the   same   mobile   number   from

        which calls had been made to the two BBC correspondents for

        informing them about the incident and Lashkar-e-Toiba being

        responsible for that incident.


(k)     Immediately   after   his   apprehension   accused   Mohd.   Arif   @

        Ashfaq   admitted   his   involvement   in   the   shooting   incident

        inside   Lal   Quila   and   also   disclosed   to   the   police   about   his

        another  hide-out at G-73, Batla House, Muradi Road,  Okhla,

        New Delhi and pursuant to his disclosure the police had gone

        to that hide-out where the occupant of that house started firing


                                     12



        upon the police team and when the police team returned the

        firing   that   person,   who   was   later   on   identified   by   accused

        Mohd.  Arif   @  Ashfaq   to  be  one   Abu  Shamal  @   Faizal,  died

        because   of   the   firing   resorted   to   by   the   policemen.   From

        house   no.   G-73,   where   the   encounter   had   taken   place,   one

        AK-56 rifle and some live cartridges and hand grenades were

        recovered.


(l)     Accused Mohd. Arif @ Ashfaq while in police custody had also

        disclosed to the police that one assault rifle had been thrown

        near   Vijay   Ghat   after   the   incident.   The   police   had   already

        recovered one AK-56 rifle from Vijay Ghat on the morning of

        23-12-2000.   Accused   Mohd.   Arif   @   Ashfaq   had   thus   the

        knowledge   about   the   availability   of   that   AK-56   rifle   at   Vijay

        Ghat.


(m)     Accused   Mohd.   Arif   @   Ashfaq   had   also   got   recovered   one

        AK-56 rifle and some ammunition from behind the Lal Quila on

        26-12-2000.


(n)     Accused  Mohd.   Arif   @   Ashfaq   had   also  got  recovered  three

        hand grenades from some place behind his computer centre

        in   Okhla   on   1-1-2001   pursuant   to   his   another   disclosure

        statement made by him while in police custody.


(o)     When   the   assault   rifle   fired   cartridge   cases   which   were

        recovered from the place of occurrence by the armymen after

        the  intruders had  escaped from there were  examined by the

        ballistic expert along with the AK-56 rifle which was recovered

        at the instance of accused Mohd. Arif @ Ashfaq from behind

        the   Lal   Quila   on   26-12-2000   and   the   AK-56   rifle   which   was

        recovered from Vijay Ghat on 23-12-2000 it was found by the

        ballistic   expert(PW-202)   that   some   of   the   assault   rifle   fired

        cartridge   cases   had   been   fired   from   the   rifle   recovered   from

        behind Red Fort and some had been fired from the other rifle

        which was recovered from Vijay Ghat.


(p)     Appellant   -   accused   Mohd.   Arif   @   Ashfaq   was   a   Pakistan

        national and had entered the Indian territory illegally.


(q)     After making illegal entry into India appellant - accused Mohd.

        Arif @ Ashfaq had been representing to the people coming in

        his contact during his stays at different places that he was  a


                                              12



                resident   of   Jammu   and   was   doing   the   business   of   shawls

                while,   in   fact,   he   had   no   such   business   and   he   had   been

                collecting money through hawala channels.


        (r)     Accused   Mohd.   Arif   @   Ashfaq   had   obtained   a   forged   ration

                card   Ex.   PW-164/A   wherein   not   only   his   house   number

                mentioned was not his correct address but even the name of

                his   wife   shown   therein   was   not   Rehmana   Yusuf   Faukhi.   He

                had   also   forged   his   learner   driving   license   Ex.   PW-13/C   as

                well   as   one   document   Ex.   PW-13/E   purporting   to   be   a

                photocopy   of   another   ration   card   in   his   name   with   his

                residential   address   of   Ghaziabad   where   he   admittedly   never

                resided and he submitted that document with a the Ghaziabad

                Transport Authority for obtaining permanent driving license. In

                the   learner  driving   license   also  he  had   shown  his residential

                addresses where he had never actually resided. All that he did

                was   to   conceal   his   real   identity   as   a   militant   having   entered

                the Indian territory with the object of spreading terror with the

                help   of   his   other   associate   militants   whom   unfortunately   the

                police   could   not   apprehend   and   some   expired   before   they

                could be tried."


73.     In   addition   to   these   circumstances,   there   is   another   circumstance


that a message was  intercepted by the BSF while Exhibit PW 162/A and


proved   by   PW-162   Inspector   J.S.   Chauhan   dated   26.12.2000   wherein


there was a specific reference to the accused.   Still another circumstance


would be that the accused had no ostensible means of livelihood and yet


he   deposited   Rs.29,50,000/-   in   three   accounts,   namely,   Standard


Chartered   Grindlays   Bank,   Connaught   Place   (known   as   ANZ   Grindlays


Bank)   bearing   account   No.32263962   of   M/s.   Nazir   &   Sons,   Standard


Chartered   Grindlays   Bank   bearing   account   No.28552609   of   Bilal   Ahmad


Kawa   and   Standard   Chartered   Bank   bearing   account   No.32181669   of


Farooq Ahmed Qasid and also deposited some amounts in the account of


                                              12



Rehmana Yusuf Faruqi and he had no explanation of these huge amounts,


their source or their distribution.  Lastly, the appellant gave a fanciful and a


completely   false   explanation   about   his   entering   in   India   and   his   being   a


member of RAW and thereby, his having interacted with Nain Singh (PW-


20).




74.     We   are   in   complete   agreement   with   the   findings   regarding   the


incriminating circumstances as recorded by the High Court.   On the basis


of   the   aforementioned   circumstances,   the   High   Court   came   to   the


conclusion that the appellant was responsible for the incident of shooting


inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted


in the death of three soldiers of Army.   It has also been held by the High


Court   that   this   was   a   result   of   well   planned   conspiracy   between   the


appellant   and   some   other   militants   including   deceased   Abu   Shamal   @


faizal who  was killed in an encounter with the police at House No. G-73,


Batla House, Muradi Road,  Okhla,  New Delhi.   The  High Court has also


deduced that it was  at the instance of the appellant that the police could


reach that spot.  The High Court has further come to the conclusion that it


was in a systematic manner that the appellant came to India illegally and


collected   highly   sophisticated   arms   and   ammunition   meant   for   mass


destruction.   The High Court further held that he chose to select the Red


Fort   for   an   assault   alongwith   his   other   associates,   the   Red   Fort   being   a


                                            12



place of national importance for India.  The High Court has also recorded a


finding that the chosen attack was on the Army Camp which was stationed


there   to   protect   this   monument   of   national   importance.     The   High   Court


has,   therefore,   deduced   that   it   was   an   act   of   waging   war   against   the


Government of India.  It is further held that the associates, with whom the


appellant   had   entered   into   conspiracy,   had   attacked   the   Army   Camp,


which   suggests   that   there   was   a   conspiracy   to   wage   war   against   the


Government   of   India,   particularly,   because   in   that   attack,   sophisticated


arms like AK-47 and AK-56 rifles and hand grenades were used.  The High


Court also took note that this aspect regarding waging war was not even


argued by the learned counsel appearing for defence.   It is on this basis


that   the   appellant   was   held   guilty   for   the   offences   punishable   under


Sections   120-B,   121-A,   121,   IPC,   Section   120-B   read   with   Section   302,


IPC and Sections 468/471/474, IPC and also the offences under Sections


186/353/120-B, IPC.  He was also held guilty for the offence under Section


14   of   the   Foreigners   Act,   since   it   was   proved   that   the   appellant,   a


foreigner, had entered the territory of India without obtaining the necessary


permissions and clearance.  Similarly, the appellant was also held guilty for


the offences under the Arms Act as well as the Explosive Substances Act


on account of his being found with a pistol and live cartridges.


                                               12



75.     The   law   on   the   circumstantial   evidence   is,   by   now,   settled.     In


Sharad   Birdhichand   Sarda   Vs.   State   of   Maharashtra   [1984   (4)   SCC


116],   this   Court   drew   out   the   following   test   for   relying   upon   the


circumstantial evidence:-




        "(1)     The circumstances from which the conclusion of guilt is to be

                 drawn should be fully established.


        (2)      The   facts   so   established   should   be   consistent   only   with   the

                 hypothesis   of   the   guilt   of   the   accused,   that   is   to   say,   they

                 should not be explainable on any other hypothesis except that

                 the accused is guilty.


        (3)      The   circumstances   should   be   of   a   conclusive   nature   and

                 tendency.


        (4)      They   should   exclude   every   possible   hypothesis   except   the

                 one to be proved, and


        (5)      There   must   be   a   chain   of   evidence   so   complete   as   not   to

                 leave   any   reasonable   ground   for   the   conclusion   consistent

                 with the innocence of the accused and must show that in all

                 human   probability   the   act   must   have   been   done   by   the

                 accused."


        The principle of this judgment was thereafter followed in number of


decisions,   they   being  Tanviben   Pankaj   Kumar   Divetia   Vs.   State   of


Gujarat [1997 (7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @


Afsan   Guru   [2005   (11)   SCC   600],   Vikram   Singh   &   Ors.   Vs.   State   of


Punjab   [2010   (3)   SCC   56],   Aftab   Ahmad   Anasari   Vs.   State   of


Uttaranchal   [2010   (2)   SCC   583]  etc.     It   is   to   be   noted   that   in   the   last


                                             12



mentioned   decision   of  Aftab   Ahmad   Anasari   Vs.   State   of   Uttaranchal


(cited supra), the observation made is to the following effect:-




       "In   cases   where   evidence   is   of   a   circumstantial   nature,   the

       circumstances   from   which   the   conclusion   of   guilt   is   to   be   drawn

       should, in the first instance, be fully established. Each fact must be

       proved individually and only thereafter the Court should consider the

       total   cumulative   effect   of   all   the   proved   facts,   each   one   of   which

       reinforces the conclusion of the guilt. If the combined effect of all the

       facts   taken   together   is   conclusive   in   establishing   the   guilt   of   the

       accused, the conviction would be justified even though it may be that

       one or more of these facts, by itself/themselves, is/are not decisive.

       The   circumstances   proved   should   be   such   as   to   exclude   every

       hypothesis   except   the   one   sought   to   be   proved.  But   this   does   not

       mean   that   before   the   prosecution   case   succeeds   in   a   case   of

       circumstantial   evidence   alone,   it   must   exclude   each   and   every

       hypothesis  suggested by the accused, howsoever  extravagant  and

       fanciful   it   might   be.  There   must   be   a   chain   of   evidence   so   far

       complete   as   not   to   leave   any   reasonable   ground   for   conclusion

       consistent with the innocence of the accused and it must be such as

       to   show   that   within   all   human   probability,   the   act   must   have   been

       done   by   the   accused.     Where   the   various   links   in   a   chain   are   in

       themselves complete, then a false plea or a false defence may be

       called   into   aid   only   to   lend   assurance   to   the   Court..........."

       (Emphasis supplied).


       The   Court   further   went   on   to   hold   that   in   applying   this   principle,


distinction must be made between the facts called primary or basic, on the


one hand, and the inference of facts to be drawn from them, on the other.


The Court further mentioned that:-




       "in drawing these inferences or presumptions, the Court must have

       regard   to   the   common   course   of   natural   events,   and   to   human

       conduct and their relations to the facts of the particular case."


                                             12



       To the similar effect are the observations made in Vikram Singh &


Ors. Vs. State of Punjab (cited supra).




76.    There   can   be   no   dispute   that   in   a   case   entirely   dependent   on   the


circumstantial   evidence,   the   responsibility   of   the   prosecution   is   more   as


compared to the case where the ocular testimony or the direct evidence,


as   the   case   may   be,   is   available.     The   Court,   before   relying   on   the


circumstantial evidence and convicting the accused thereby has to satisfy


itself   completely   that   there   is   no   other   inference   consistent   with   the


innocence of the accused possible nor is there any plausible explanation.


The   Court   must,   therefore,   make   up   its   mind   about  the   inferences   to   be


drawn   from   each   proved   circumstance   and   should   also   consider   the


cumulative   effect   thereof.     In   doing   this,   the   Court   has   to   satisfy   its


conscience   that   it   is   not   proceeding   on   the   imaginary   inferences   or   its


prejudices  and  that  there could be no other inference  possible  excepting


the   guilt   on   the   part   of   the   accused.     We   respectfully   agree   with   the


principles   drawn   in   the   above   mentioned   cases   and   hold   that   the


prosecution   was   successful   in   establishing   the   above   mentioned


circumstances against the appellant, individually, as well as, cumulatively.


There   indeed   cannot   be   a   universal   test   applicable   commonly   to   all   the


situations for reaching an inference that the accused is guilty on the basis


of   the   proved   circumstances   against   him   nor   could   there   be   any


                                               12



quantitative   test   made   applicable.     At   times,   there   may   be   only   a   few


circumstances available to reach a conclusion of the guilt on the part of the


accused  and  at times,  even  if  there  are  large numbers  of circumstances


proved, they may not be enough to reach the conclusion of guilt on the part


of   the   accused.     It   is   the   quality   of   each   individual   circumstance   that   is


material and that would  essentially depend upon the  quality of evidence.


Fanciful   imagination   in   such   cases   has   no   place.     Clear   and   irrefutable


logic would be an essential factor in arriving at the verdict of guilt on the


basis   of   the   proved   circumstances.     In   our   opinion,   the   present   case   is


such, as would pass all the tests so far devised by this Court in the realm


of criminal jurisprudence.




77.     However, we must, at this stage, take note of the argument raised by


the   learned   counsel   for   the   defence   that   the   appellant   has   suffered   a


prejudice   on   account   of   his   being   a   Pakistani   national.     The   learned


counsel   contended   that   on   account   of   his   foreign   nationality   and   in


particular that of Pakistan, the whole  investigating agency as well  as the


Courts   below   have   viewed   his   role   with   jaundiced   eyes.     The   learned


counsel pointed out that all the other accused who were acquitted did not


have   foreign   nationality.     We  must   immediately   note   that   the   criticism   is


entirely   misplaced,   both   against   the   investigating   agency  and   the   Courts


below.     The   investigation   in   this   case   was   both   scientific   and   fair


                                              13



investigation.   This was one of the most difficult cases to be investigated


as   there   could   have   been   no   clue   available   to   the   investigating   agency.


The small thread which became available to the investigating agency was


the chit found alongwith some Indian currency at the back of the Red Fort


wall in a polythene packet.  We must pay compliments to the Investigating


Officer  S.K.   Sand   (PW-230)   as   also   to   all   the   other   associated   with   the


investigation for being objective and methodical in their approach.  It has to


be borne in mind that not a single incidence of ill-treatment to the appellant


was  reported or proved.   Again, the timely recording of the D.D. Entries,


scientific investigation using the computer, the depth of investigation and


the   ability   of   the   investigating   agency   to   reach   the   very   basis   of   each


aspect  lend  complete  credibility to  the  fairness of the  investigation.    We,


therefore,   reject   this   argument   insofar   as   the   investigating   agency   is


concerned.  Similar is the role played by the trial and the appellate Courts.


It could not be distantly imagined that the Courts below bore any prejudice.


The   trial   held   before   the   trial   Judge   was   the   epitome   of   fairness,   where


every opportunity was given to the accused persons and more particularly,


to   the   present   appellant.   Similarly,   the   High   Court   was   also   very   fair   in


giving   all   the   possible   latitude,   in   giving   patient   hearing   to   this   accused


(appellant).    The records of the trial and the appellate Courts truly justify


these   inferences.     We,   therefore,   reject   this   argument   of   the   learned


defence counsel.


                                             13



78.    It   was   then   argued   that   there   could   be   no   conviction   for   the


conspiracy   in   the   absence   of   conviction   of   any   other   accused   for   that


purpose.  The argument is per se incorrect.  It is true that out of the original


22   accused   persons,   ultimately   upto   this   level,   it   is   only   the   present


appellant   who   stands   convicted.     We   must,   however,   point   out   that   as


many as 8 accused persons against whom the investigating agency filed a


chargesheet   are   found   to   be   absconding.     The   Investigating   Officer   had


collected ample material during the investigation against these 8 accused


persons   who   were   (1)   Sabir   @   Sabarulla   @   Afgani   (A-12),   Sher   Zaman


Afgani   S/o   Mohd.   Raza   (A-13),   Abu   Haider   (A-14),   Abu   Shukher   (A-15),


Abu   Saad   (A-16),   Zahur   Ahmad   Qasid   S/o   Gulam   Mohd.   Qasid   (A-17),


Bilal Ahmad Kawa S/o Ali Mohd. Kawa (A-18) and Athruddin @ Athar Ali


@   Salim   @   Abdulla   S/o   Ahmuddin   (A-19).     Besides   these   absconding


accused persons, 3 others were Abu Bilal (A-20), Abu Shamal (A-21) and


Abu Suffian (A-22).   All these three persons were already dead when the


chargesheet   was   filed   against   them.     The   charge   of   conspiracy   was


against all the accused persons.   The conspiracy also included the dead


accused Abu Shamal who was found to be hiding and who was later killed


in exchange of fire with the police.  The whereabouts of Abu Shamal were


known   only   due   to   the   discovery   statement   by   the   appellant,   in   which   a


very clear role was attributed to Abu Shamal, who was also a part of the


team having entered the Red Fort and having taken part in the firing and


                                               13



killing   of  three   soldiers.     It  has   also   come   in  the   evidence  that  the  other


accused who  was  absconding in the present case, namely,  Abu Bilal (A-


20),   was   killed   in   exchange   of   fire   with   police   in   2002   near   Humayun's


Tomb.  It is to be remembered that the negative of the photograph of Abu


Bilal   (A-20)   was   seized   at   the   time   of   arrest   of   the   appellant,   from   his


wallet.    Indeed, the act of firing at the Army was  not by a single person.


The learned Solicitor General, therefore, rightly submitted that the case of


the prosecution that there was a conspiracy to attack the Red Fort and kill


innocent persons, was not affected even if the other accused persons who


were alleged to have facilitated and helped the appellant, were acquitted.


The   question   of   a   single   person   being   convicted   for   an   offence   of


conspiracy   was   considered   in  Bimbadhar   Pradhan   Vs.   The   State   of


Orissa [AIR 1956 SC 469].  Paragraph 14 thereof is relevant for us, which


is as follows:-




        "14.    Another contention raised on behalf of the appellant was that

                the other accused having been acquitted by the trial court, the

                appellant   should   not   have   been   convicted   because   the

                evidence against all of them was the same. There would have

                been a great deal of force in this argument, not as a question

                of   principle  but   as  a   matter  of   prudence  if  we   were  satisfied

                that   the   acquittal   of   the   other   four   accused   persons   was

                entirely   correct.   In   this   connection   the   observations   of   this

                Court in the case of Dalip Singh  v. State of Punjab [1954] (1)

                SCR 145, and of the Federal Court in Kapildeo Singh v. The

                King   [1949]   F.C.R.   834,   are   relevant.   It   is   not   essential   that

                more than one person should be convicted of the offence of

                criminal conspiracy. It is enough if the court is in a position to

                find that two or more persons were actually concerned in the


                                            13



              criminal   conspiracy.   If   the   courts   below   had   come   to   the

              distinct   finding   that   the   evidence   led   on   behalf   of   the

              prosecution was unreliable, then certainly no conviction could

              have been based on such evidence and all the accused would

              have   been   equally   entitled   to   acquittal.   But   that   is   not   the

              position  in this case  as we read the judgments of the courts

              below."


       The learned Solicitor General also relied on the decision in State of


Himachal   Pradesh   Vs.   Krishna   Lal   Pradhan   [1987   (2)   SCC   17]  and


cited the observations to the effect that the offence of criminal conspiracy


consists in a meeting of minds of two or more persons for agreeing to do or


causing to be done an illegal act by illegal means, and the performance of


an act in terms thereof.  It is further observed:-




              "If pursuant to the criminal conspiracy the conspirators commit

              several offences, then all of them will be liable for the offences

              even   if   some   of   them   had   not   actively   participated   in   the

              commission of the offences."


       The learned Solicitor General further relied on the decision in State


through Superintendent of Police, CBI/SIT Vs. Nalini & Ors. [1999 (5)


SCC   253],   wherein   in  paragraph   662,   the   following   observations   were


made:-




              "In   reaching   the   stage   of   meeting   of   minds,   two   or   more

              persons share information about doing an illegal act or a legal

              act by illegal means. This is the first stage where each is said

              to have knowledge of a plan for committing an illegal act or a

              legal   act   by   illegal   means.   Among   those   sharing   the

              information   some   or   all   may   performance   intention   to   do   an

              illegal act or a legal act by illegal means. Those who do form

              the requisite intention would be parties to the agreement and


                                            13



             would be conspirators but those who drop out cannot be roped

             in   as   collaborators   on   the   basis   of   mere   knowledge   unless

             they   commit   acts   or   omissions   from   which   a   guilty   common

             intention   can   be   inferred.   It   is   not   necessary   that   all   the

             conspirators should participate from inception to the end of the

             conspiracy; some may join the conspiracy after the time when

             such   intention   was   first   entertained   by   any   one   of   them   and

             some others may quit from the conspiracy. All of them cannot

             but   be   treated   as   conspirators.   Where   in   pursuance   of   the

             agreement   the   conspirators   commit   offences   individually   or

             adopt illegal means to do a legal act which has a nexus to the

             object of conspiracy, all of them will be liable for such offences

             even   if   some   of   them   have   not   actively   participated   in   the

             commission of those offences."


      Again   in  Firozuddin   Basheeruddin   &   Ors.   Vs.   State   of   Kerala


[2001 (7) SCC  596], while  stating  the principles of conspiracy, the Court


observed as follows:-




             "Conspiracy is not only a substantive crime. It also serves as a

             basis for holding one person liable for the crimes of others in

             cases   where   application   of   the   usual   doctrines   of   complicity

             would not render that person liable. Thus, one who enters into

             a   conspiratorial   relationship   is   liable   for   every   reasonably

             foreseeable   crime   committed   by   every   other   member   of   the

             conspiracy in furtherance of its objectives, whether or not he

             knew of the crimes or aided in their commission. The rationale

             is that criminal acts done in furtherance of a conspiracy may

             be   sufficiently   dependent   upon   the   encouragement   and

             support   of   the   group   as   a   whole   to   warrant   treating   each

             member as a casual agent to each act. Under this view, which

             of   the   conspirators   committed   the   substantive   offence   would

             be less significant in determining the defendant's liability than

             the   fact   that   the   crime   was   performed   as   a   part   of   a   larger

             division of labor to which the accused had also contributed his

             efforts.


                     Regarding   admissibility   of   evidence,   loosened

             standards   prevail   in   a   conspiracy   trial.   Contrary   to   the   usual

             rule,   in   conspiracy   prosecutions   a   declaration   by   one


                                            13



              conspirator, made in furtherance of a conspiracy and during its

              pendency, is admissible against each co-conspirator. Despite

              the   unreliability   of   hearsay   evidence,   it   is   admissible   in

              conspiracy   prosecutions.   Explaining   this   rule,   Judge   Hand

              said:


                       "Such declarations are admitted upon no doctrine of the

                       law   of   evidence,   but   of   the   substantive   law   of   crime.

                       When men enter into an agreement for an unlawful end,

                       they become ad hoc agents for one another, and have

                       made 'a partnership in crime'. what one does pursuant

                       to   their   common   purpose,   all   do,   and   as   declarations

                       may be such acts, they are competent against all (Van

                       Riper v. United States 13 F.2d 961, 967, (2d Cir. 1926)."


                       Thus   conspirators   are   liable   on   an   agency   theory   for

              statements   of   co-conspirators,   just   as   they   are   for   the   overt

              acts and crimes committed by their confreres."


       Our attention was also invited to the observations made in Yashpal


Mittal   Vs.   State   of   Punjab   [1977   (4)   SCC   540]  at   page   543.     The


observations are to the following effect:-




              "The   offence   of   criminal   conspiracy   under   Section  120A  is   a

              distinct offence introduced for the first time in 1913 in Chapter

              VA of the Penal Code. The very agreement, concert or league

              is the ingredient of the offence. It is not necessary that all the

              conspirators   must   know   each   and   every   detail   of   the

              conspiracy   as   long   as   they   are   co-participators   in   the   main

              object of the conspiracy. There may be so many devices and

              techniques   adopted   to   achieve   the   common   goal   of   the

              conspiracy and there may be division of performances in the

              chain   of   actions   with   one   object   to   achieve   the   real   end   of

              which   every   collaborator   must   be   aware   and   in   which   each

              one of them must be interested. There must be unity of object

              or   purpose   but   there   may   be   plurality   of   means   sometimes

              even  unknown  to  one  another,  amongst  the conspiratOrs.  In

              achieving   the   goal   several   offences,   may   be   committed   by

              some   of   the   conspirators   even   unknown   to   the   others.   The

              only relevant factor is that all means adopted and illegal acts


                              13



done must be and purported to be in furtherance of the object

of   the   conspiracy   even   though   there   may   be   sometimes

misfire or over-shooting by some of the conspirators. Even if

some steps are resorted to by one or two of the conspirators

without   the   knowledge   of   the   others   it   will   not   affect   the

culpability of those others when  they are associated with the

object   of   the   conspiracy.   The   significance   of   criminal

conspiracy   under  Section  120A  is   brought   out   pithily   by   this

Court   in   Major   B.   G.   Darsay   v.   The   State   of   Bombay:   1961

CriLJ 828 . thus:


        The   gist   of   the   offences   is   an   agreement  to   break   the

        law. The parties to such an agreement will  be guilty of

        criminal conspiracy, though the illegal act agreed to be

        done has not been done. So too, it is not an ingredient

        of the offence that all the parties should agree to dc a

        single illegal act. It may comprise the commission of a

        number   of   acts.   under   Section  43  of   the   Indian   Penal

        Code, an act would be illegal if it is an offence or if it is

        prohibited   by   law.   Under   the   first   charge   the   accused

        are charged with have conspired to do three categories

        of  illegal   acts  and  the  mere  fact  that   all of  them   could

        not   be   convicted   separately   in   respect   of   each   of   the

        offences   has   no   relevancy   in   considering   the   question

        whether   the   '-   offence   of   conspiracy   has   been

        committed.   They   ate   all   guilty   of   the   offence   of

        conspiracy   to   do   illegal   acts,   though   for   individual

        offences all of them may not be liable.


        We   are   in   respectful   agreement   with   the   above

observations with regard to the offence of criminal conspiracy.


        The   main   object   of   the   criminal   conspiracy   in   the   first

charge   is   undoubtedly   cheating   by   personation.   The   other

means   adopted,   inter   alia,   are   preparation   or   causing   to   be

prepared spurious passports; forging or causing to be forged

entries   and   endorsements   in   that   connection;   and   use   of   or

causing   to   be   used   forged   passports   as   genuine   in   order   to

facilitate   travel   of   persons   abroad.   The   final   object   of   the

conspiracy in the first charge being the offence of cheating by

personation  and we  find,  the other offence described therein

are   steps,   albeit,   offences   themselves,   in   aid   of   the   ultimate

crime. The charge does not connote plurality of objects of the


                                           13



             conspiracy. That the appellant himself is not charged with the

             ultimate offence, which is the object of the criminal conspiracy,

             is beside the point in a charge under Section 120B IPC as long

             as   he   is   a   party   to   the   conspiracy   with   the   end   in   view.

             Whether the charges will be ultimately established against the

             accused is a completely different matter within the domain of

             the trial court."


      The   learned   Solicitor   General   also   invited   our   attention   to   the


decision rendered in  Ajay Agarwal Vs. Union of India & Ors. [1993 (3)


SCC 609], wherein the following observations were made in paragraphs 8


and 24:-




             "8.     ......  In Chapter VA, conspiracy was brought on statute

                     by the Amendment Act, 1913 (8 of 1913). Section 120-A

                     of the I.P.C. defines 'conspiracy' to mean that when two

                     or  more persons  agree  to do,  or  cause  to be  done an

                     illegal act, or an act which is not illegal by illegal means,

                     such   an   agreement   is   designated   as   "criminal

                     conspiracy.   No   agreement   except   an   agreement   to

                     commit   an   offence   shall   amount   to   a   criminal

                     conspiracy, unless some act besides the agreement is

                     done   by   one   or   more   parties   to   such   agreement   in

                     furtherance   thereof.   Section          120-B     of   the   I.P.C.

                     prescribes punishment for criminal conspiracy. It is not

                     necessary   that   each   conspirator   must   know   all   the

                     details   of   the   scheme   nor   be   a   participant   at   every

                     stage. It is necessary that they should agree for design

                     or object of the conspiracy. Conspiracy is conceived as

                     having three elements: (1) agreement (2) between  two

                     or   more   persons   by   whom   the   agreement   is   effected;

                     and   (3)   a   criminal   object,   which   may   be   either   the

                     ultimate   aim   of   the   agreement,   or   may   constitute   the

                     means, or one of the means by which that aim is to be

                     accomplished.   It   is   immaterial   whether   this   is   found   in

                     the   ultimate   objects.   The   common   law   definition   of

                     'criminal conspiracy' was stated first by Lord Denman in

                     Jones'  case  (1832  B &  AD  345) that  an  indictment  for

                     conspiracy must "charge a conspiracy to do an unlawful


                                            13



                     act by unlawful means" and was elaborated by Willies,

                     J. on behalf of the Judges while referring the question to

                     the House of Lords in Mulcahy v. Reg (1868) L.R. 3 H.L.

                     306   and   the   House   of   Lords   in   unanimous   decision

                     reiterated in Quinn v. Leathem 1901 AC 495 as under:


                             `A conspiracy consists not merely in the intention

                             of   two   or   more,   but   in   the   agreement   of   two   or

                             more to do an unlawful  act, or to do a lawful act

                             by   unlawful   means.   So   long   as   such   a   design

                             rests   in   intention   only   it   is   not   indictable.   When

                             two agree to carry it into effect, the very plot is an

                             act   in   itself,   and   the   act   of   each   of   the   parties,

                             promise   against   promise,  actus   contra   actum,

                             capable of being enforced, if lawful, punishable of

                             for   a   criminal   object   or   for   the   use   of   criminal

                             means. (emphasis supplied)'


             24.     A conspiracy thus, is a continuing offence and continues

                     to   subsist   and   committed   wherever   one   of   the

                     conspirators does an act or series of acts. So long as its

                     performance continues, it is a continuing offence till it is

                     executed   or   rescinded   or   frustrated   by   choice   or

                     necessity.   A   crime   is   complete   as   soon   as   the

                     agreement is made, but it is not a thing of the moment.

                     It does not end with the making of the agreement.  It will

                     continue so long as there are two or more parties to it

                     intending to carry into effect the design. Its continuance

                     is a threat to the society against which it was aimed at

                     and would be dealt with as soon as that jurisdiction can

                     properly   claim   the   power   to   do   so.   The   conspiracy

                     designed or agreed abroad will have the same effect as

                     in   India,   when   part   of   the   acts,   pursuant   to   the

                     agreement   are   agreed   to   be   finalized   or   done,

                     attempted or even frustrated and vice versa."


      Further   in  Nazir   Khan   &   Ors.   Vs.   State   of   Delhi   [2003   (8)   SCC


461], the Court observed as under:-


                               13



"16.     In  Halsbury's   Laws   of   England   (vide   4th  Ed.   Vol.   11,

         page   44,   page   58),   the   English   Law   as   to   conspiracy

         has been stated thus:


                 "Conspiracy  consists   in  the  agreement   of  two  or

                 more   persons   to   do   an   unlawful   act,   or   to   do   a

                 lawful   act   by   unlawful   means.   It   is   an   indication

                 offence at common law, the punishment for which

                 is imprisonment or fine or both in the discretion of

                 the Court.


                         The essence of the offence of conspiracy is

                 the   fact   of   combination   by   agreement.   The

                 agreement may be express or implied, or in part

                 express   and   in   part   implied.   The   conspiracy

                 arises   and   the   offence   is   committed   as   soon   as

                 the   agreement   is   made;   and   the   offence

                 continues   to   be   committed   so   long   as   the

                 combination   persists,   that   is   until   the

                 conspiratorial   agreement   is   terminated   by

                 completion of its performance or by abandonment

                 or   frustration   or   however,   it   may   be.   The   actus

                 rues in a conspiracy is the agreement to execute

                 the illegal conduct, not the execution of it. It is not

                 enough   that   two   or   more   persons   pursued   the

                 same  unlawful   object  at the  same  time  or in  the

                 same place; it is necessary to show a meeting of

                 minds,   a   consensus   to   effect   an   unlawful

                 purpose.  It is not, however,  necessary that each

                 conspirator   should   have   been   in   communication

                 with every other."


17.      There is no difference between the mode of proof of the

         offence   of   conspiracy   and   that   of   any   other   offence,   it

         can be established by direct or circumstantial evidence.

         (See: Bhagwan Swarup Lal Bishan Lal etc.etc. v. State

         of Maharashtra AIR 1965 SC 682


18.      Privacy   and   secrecy   are   more   characteristics   of   a

         conspiracy,   than   of   a   loud   discussion   in   an   elevated

         place open to public view. Direct evidence in proof of a

         conspiracy   is   seldom   available,   offence   of   conspiracy

         can   be   proved   by   either   direct   or   circumstantial


                                           14



                     evidence.   It   is   not   always   possible   to   give   affirmative

                     evidence about the date of the formation of the criminal

                     conspiracy,   about   the   persons   who   took   part   in   the

                     formation of the conspiracy, about the object, which the

                     objectors   set   before   themselves   as   the   object   of

                     conspiracy, and about the manner in which the object of

                     conspiracy is to be carried out, all this is necessarily a

                     matter of inference.


             19.     The   provisions   of   Section  120A  and  120B,   IPC   have

                     brought   the   law   of   conspiracy   in   India   in   line   with   the

                     English Law by making the overt act unessential when

                     the conspiracy is to commit any punishable offence. The

                     English   Law   on   this   matter   is   well   settled.   Russell   on

                     crime (12 Ed.Vol. I, p.202) may be usefully noted-


                             "The   gist   of   the   offence   of   conspiracy   then   lies,

                             not  in doing the act, or effecting the  purpose  for

                             which the conspiracy is formed, nor in attempting

                             to do them, nor in inciting others to do them, but

                             in   the   forming   of   the   scheme   or   agreement

                             between the parties, agreement is essential. More

                             knowledge, or even discussion, of the plan is not,

                             per se, enough."


                             Glanville  Williams in the "Criminal  Law"  (Second

                     Ed. P. 382) states-


                             "The  question  arose  in  an  lowa case,   but  it   was

                             discussed   in   terms   of   conspiracy   rather   than   of

                             accessoryship. D, who had a grievance against P,

                             told E that if he would whip P someone would pay

                             his fine. E replied that he did not want anyone to

                             pay his fine,  that  he had a grievance  of his own

                             against P and that he would whip him at the first

                             opportunity.   E   whipped   P.   D   was   acquitted   of

                             conspiracy because  there  was  no  agreement  for

                             'concert of action', no agreement to 'co-operate'."


      The   learned   Solicitor   General   also   referred   to   the   summing   up   by


Coleridge, J. in R. Vs. Murphy (ER) at page 508.


                                             14



79.     Ultimately,   the   learned   Solicitor   General   relied   on   the   celebrated


decision   in  State   (NCT   of   Delhi)   Vs.   Navjot   Sandhu   [2005   (11)   SCC


600].  On this basis, it was urged by the learned Solicitor General that the


circumstances which were found to have been established beyond doubt,


led   only   to   one   conclusion   that   the   appellant   was   responsible   for   the


incident   of   shooting   inside   the   Red   Fort   on   the   night   of   22.12.2000,   in


which three Army soldiers were killed.  This was nothing but a well planned


conspiracy and the responsibility of this ghastly incident was taken up by


Lashkar-e-Toiba.     This   was   undoubtedly   a   conspiracy,   well   planned,


alongwith   some   other   militants   including   the   deceased   accused   Abu


Shamal who was also killed in the exchange of fire with the police.  For this


conspiracy, the appellant illegally entered India and he was receiving huge


amounts of money to make it possible for himself to execute his design.  It


is   for   this   purpose   that   he   falsely   created   and   forged   number   of


documents.  The whole idea was to legitimize his stay in India for which he


got   prepared   a   false   ration   card,   a   false   license   and   also   opened   bank


accounts   with   the   false   addresses.     He   had   taken   adequate   care   to


conceal his real identity.   He described himself as a trader and a resident


of Jammu, which was also a patent falsehood.  He went on to the extent of


getting married allegedly on the basis of an advertisement.  He also spent


huge   amounts   without   there   being   any   source   of   money   and   deposited


lakhs   of   rupees   in   some   other   bank   accounts.     It   may   be   that   those


                                             14



persons,   in   whose   accounts   he   deposited   money,   might   have   been


acquitted   getting   benefit   of   doubt   regarding   their   complicity,   but   the   fact


remains that the appellant had no explanation to offer.  Similarly, barely 14


days   prior   to   the   incident,   he   got   married   to   Rehmana   Yusuf   Farukhi,


another   accused   who   was   acquitted.     It   may   be   that   Rehmana   Yusuf


Farukhi also did not have any idea and, therefore, was granted the benefit


of doubt; however, that does not, in any manner, dilute the nefarious plans


on the part of the appellant.   He collected highly sophisticated arms and


ammunition and some arms were proved to have been used in the attack


on the Red Fort.   The attack on the soldiers staying in the Army Camp at


Red Fort was nothing but a war waged against the Government of India.  It


was clear that there were more than one person.  Therefore, it was nothing


but   a   well   planned   conspiracy,   in   which   apart   from   the   appellant,   some


others were also involved.




80.    The   learned   Solicitor   General   then   urged   that   the   appellant   was


rightly convicted for the offences punishable under Sections 120-B, 121-A,


121,   IPC,   Section   120-B   read   with   Section   302,   IPC,   Sections


468/471/474,   IPC,   Sections   186/353/120-B,   IPC   and   Section   14   of   the


Foreigners Act.




81.    There was no argument addressed before us to the effect that there


was  no conspiracy.   The only argument advanced was  that the appellant


                                              14



alone could not have been convicted for the conspiracy, since all the other


accused   were   acquitted.     We   have   already   stated   the   principles   which


have emerged from various decisions of this Court.  Once the prosecution


proves that there was a meeting of minds between two persons to commit


a crime, there would be an emergence of conspiracy.  The fact that barely


within minutes of the attack, the BBC correspondents in Srinagar and Delhi


were   informed,   proves   that   the   attack   was   not   a   brainchild   of   a   single


person.   The information reached to BBC correspondent at Srinagar and


Delhi  sufficiently  proves that  there  was  a definite  plan  and  a conspiracy.


Again the role of other militants was very clear from the wireless message


intercepted   at   the   instance   of   BSF.     Unless   there   was   a   planning   and


participation   of   more   than   one   persons,   all   this   could   never   have


happened.    For   the  execution  of  the   nefarious  plans,   the  militants   (more


than one in number) entered under the guise of watching  Son et Lumiere


show and while doing so, they smuggled arms inside the Red Fort.   It is


after the show taking the advantage of the darkness, they started shooting,


in   which   they  first  killed   the   Sentry   and   then   the   other   two   persons   who


were the soldiers and then taking further advantage of the darkness, they


scaled over the wall and fled.   All this had to be a pre-planned attack for


which the militants must have made a proper reconnaissance, must have


also found out the placements of Army barracks and the escape route from


the   backside   of   the   Red   Fort.     It   was   not   a   stray   attack   of   some


                                            14



desperados, which was undoubtedly an extremely well-planned attempt to


overawe   the   Government   of   India   and   also   to   wage   war   against   the


Government of India.  It has already been held in Kehar Singh Vs. State


(Delhi   Admn.)   [AIR   1988   SC   1883]  that   the   evidence   as   to   the


transmission of thoughts sharing the unlawful design would be sufficient for


establishing   the   conspiracy.     Again   there   must   have   been   some   act   in


pursuance of the agreement.  The offence under Section 121 of conspiring


to wage a war is proved to the hilt against the appellant, for which he has


been rightly held guilty for the offence punishable under Sections 121 and


121-A,   IPC.     The   appellant   is   also   rightly   held   guilty   for   the   offence


punishable under Section 120-B, IPC read with Section 302, IPC.   In the


aforementioned decision of Navjot Singh Sandhu it has been held by this


Court:




                "Thus   the   conspirator,   even   though   he   may   not   have

                indulged in the actual criminal operations to execute the

                conspiracy,   becomes   liable   for   the   punishment

                prescribed   under   Section   302,   IPC.     Either   death

                sentence   or   imprisonment   for   life   is   the   punishment

                prescribed under Section 302, IPC."


          In this view, we agree with the verdict of the trial Court as well as the


High Court.




82.       No other point was argued before us at the instance of the defence.


That leaves us with the question of punishment.   The trial Court awarded


                                              14



the death sentence to the appellant Mohd. Arif @ Ashfaq for the offence


under  Section   121  IPC   for  waging   war   against  the  Government   of  India.


Similarly,  he was  awarded  death sentence for the  offence under Section


120B   read   with   Section   302,   IPC   for   committing   murder   of   Naik   Ashok


Kumar,   Uma   Shankar   and   Abdullah   Thakur   inside   the   Red   Fort   on


22.12.2000.  For the purpose of the sentences, the other convictions being


of minor nature are not relevant.   On a reference having been made to it,


the  High Court ultimately confirmed the death sentence.    The  High court


also concurred with the finding of the trial Court that this was a rarest of the


rare case.   The  High  Court has observed  that the  counsel  appearing  for


him did not highlight any mitigating circumstance justifying the conversion


of   death   sentence   to   life   imprisonment   perhaps   because   the   learned


counsel  was   conscious  of  the  futility  of  the  submission.     The   High  Court


specifically   found   that   accused   had   hatched   a   conspiracy   to   attack   the


Indian Army stationed inside the national monument for protecting it from


any invasion by the terrorists and had executed also that conspiracy with


the help of his  other associate militants and in that process they had killed


three   army   Jawans   and   more  could   also   have   lost  their  lives  but  for   the


immediate retaliation by the members of the Quick Reaction Team of the


Army.  In that view, the High Court concurred with the finding of this being


a   rarest   of   the   rare   case.     The   question   is   whether   we   should   give   the


same verdict in respect of the death sentence.


                                             14



83.    This was, in our opinion, a unique case where Red Fort, a place of


paramount   importance   for   every   Indian   heart   was   attacked   where   three


Indian soldiers lost their lives.  This is a place with glorious history, a place


of   great   honour   for   every   Indian,   a   place   with   which   every   Indian   is


attached   emotionally,   and   a   place   from   where   our   first   Prime   Minister


delivered his speech on 15th  August, 1947, the day when India broke the


shackles of foreign rule and became a free country.  It has since then been


a   tradition   that   every   Hon'ble   Prime   Minister   of   this   country   delivers   an


address   to   the   nation   on   every   15th  August   to   commemorate   that   great


event.     This   Fort   was   visualized   and   constructed   by   Mughal   Emperor


Shahjahan who is known as "Shahjahan the builder".  It took nine years for


its completion.   It was here that Shahjahan ascended the Throne on 18th


April, 1648 amidst recitation of sacred Aayates of Holy Quran and mantras


from Hindu scriptures.   The great historical monument thereafter saw the


rule of number of Mughal Emperors including Aurangzeb.   It also saw its


most unfortunate capture by Nadir Shah.   It was in 1837, the last Mughal


Emperor   Bahadurshah   Zafar   II   took   over   the   Throne.     It   must   be


remembered that it was during the empire of Bahadurshah Zafar II that the


first war of Independence was fought.   The Red Fort became the ultimate


goal during that war of Independence which broke out in the month of May,


1857.   The Fort breathed free air for a brief period.   But ultimately in the


month of September, 1857, it was captured by the British. Red Fort is not


                                             14



just   one   of   the   several   magnificent   monuments   that   were   built   by   the


Mughal emperors during their reign for nearly three centuries. It is not just


another   place   which   people   from   within   and   outside   the   country   visit   to


have   a   glimpse   of   the   massive   walls   on   which   the   Fort   stands   or   the


exquisite workmanship it displays.   It is not simply a tourist destination in


the   capital   that   draws   thousands   every   year   to   peep   and   revel   into   the


glory of the times by gone.     Its importance lies in the fact that it has for


centuries symbolised the seat of power in this country.   It has symbolised


the supremacy of the Mughal and the British empires just as it symbolises


after   independence   the   sovereignty   of   the   world's   largest   democratic


republic.   It   is   a   national   symbol   that   evokes   the   feelings   of   nationalism


amongst   the   countrymen   and   reminds   them   of   the   sacrifices   that   the


freedom  fighters made for the liberation  of this country from foreign rule.


No wonder even after the fall of the fort to the British forces in the first war


of independence in 1857 and the shifting of the seat of power from the Red


Fort to the Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru after his


historic "Tryst with Destiny" speech unfurled the tricolor from the ramparts


of the Red Fort on 15th  August 1947.   That singular event symbolised the


end of the British rule in this country and the birth of an independent India.


An  event  that  is  relived  and  re-acted  every  succeeding  year  since 1947,


when every incumbent Prime Minister addresses the nation from atop this


great   and   historic   Fort   reminding   the   countrymen   of   the   importance   of


                                                14



freedom,   the   need   for   its   preservation   and   the   values   of   constitutional


democracy   that   guarantees   the   freedoms   so   very   fundamental   to   the


preservation   of   the   unity   and   integrity   of   this   country.   An   attack   on   a


symbol that is so deeply entrenched in the national psyche was, therefore,


nothing but an attack on the very essence of the hard earned freedom and


liberty so very dear to the people of this country.   An attack on a symbol


like Red Fort was an assault on the nation's will and resolve to preserve its


integrity   and   sovereignty   at   all   costs.   It   was   a   challenge   not   only   to   the


Army battalions stationed inside the monument but the entire nation. It was


a   challenge   to   the   very   fabric   of   a   secular   constitutional   democracy   this


country   has   adopted   and   every   thing   that   is   good   and   dear   to   our


countrymen.   It   was   a   blatant,   brazenfaced   and   audacious   act   aimed   to


over awe the Government of India.  It was meant to show that the enemy


could  with   impunity   reach  and  destroy   the   very  vitals   of  an   institution  so


dear to our fellow countrymen for what it signified for them.  It is not for no


reason that whosoever comes to Delhi has a yearning to visit the Red Fort.


It   is   for  these  reasons  that   this  place  has  become   a  place  of   honour   for


Indians.   No one can ever forget the glorious moments when the Indians


irrespective   of   their   religions   fought   their   first   war   of   Independence   and


shed their blood.  It was, therefore, but natural for the foreigner  enemies to


plan an attack on the army specially kept to guard this great monument.


This was not only an attack on Red Fort or the army stationed therein, this


                                               14



was an arrogant assault on the self respect of this great nation.   It was a


well   thought   out   insult   offered   to   question   the   sovereignty   of   this   great


nation by foreign nationals.  Therefore, this case becomes a rarest of rare


case.     This   was   nothing   but   an   undeclared   war   by   some   foreign


mercenaries like the present appellant and his other partner in conspiracy


Abu   Shamal   and   some   others   who   either   got   killed   or   escaped.     In


conspiring   to   bring  about   such   kind   of   attack   and   then   carrying   out   their


nefarious activities in systematic manner to make an attack possible was


nothing   but   an   attempt   to   question   the   sovereignty   of   India.   Therefore,


even without any reference to any other case law, we held this case to be


the rarest of rare case.   Similar sentiment was expressed by this Court in


State   v.   Navjot   Singh   Sandhu  [2005   (11)   SCC   600].     The   Court


expressed its anguish in the following words.




                "In the instant case, there can be no doubt that the most

                appropriate punishment is death sentence. That is what

                has been awarded by the trial Court and the High Court.

                The present case, which has no parallel in the history of

                Indian   Republic,   presents   us   in   crystal   clear   terms,   a

                spectacle   of   rarest   of   rare   cases.     The   very   idea   of

                attacking   and   overpowering   a   sovereign   democratic

                institution   by   using   powerful   arms   and   explosives   and

                imperiling   the   safety   of   a   multitude   of   peoples'

                representatives, constitutional functionaries and officials

                of Government of India and engaging into a combat with

                security forces is a terrorist act of gravest severity. It is a

                classic example of rarest of rare cases.   This question

                of   attack   on   the   army   and   the   killing   of   three   soldiers

                sent shock waves of indignation throughout the country.


                                              15



                We have no doubt that the collective conscience of the

                society can be satisfied by capital punishment alone."





        We agree with the sentiments expressed in Navjot Singh Sandhu's


case (cited supra):




                "The challenge to the unity, integrity and sovereignty of

                India   by   these   acts   of   terrorists   and   conspirators,   can

                only   be   compensated   by   giving   the   maximum

                punishment   to   the   person   who   is   proved   to   be   the

                conspirator in this treacherous act."





84.     A   conspiracy   to   attack   the   Indian   Army   unit   stationed   in   Red   Fort


and the consequent un-provoked attack cannot be described excepting as


waging war  against India and there can be no question of compromising


on this issue.  The trial Court has relied on number of other cases including


the case of Navjot Singh Sandhu (cited supra) as also the case of State


of Tamil Nadu v. Nalini [AIR 1999 SC 2640].  We do not want to burden


the judgment by quoting from all these cases.  However, we must point out


that in  Machhi Singh v. State of Punjab's case   [1983 (3) SCC 470]  a


principle   was   culled   out   that   when   the   collective   conscience   of   the


community   is   so   shocked,   that   it   will   expect   the   holders   of   the   judicial


power  centre to inflict death penalty irrespective of their personal opinion


as regards  desirability  or otherwise  of retaining death penalty, same  can


be  awarded.    The fourth test includes  the crime  of enormous  proportion.


                                                15



For instance when multiple murders say of all or almost all the members of


a family or a large number of persons of a particular caste, community or


locality are committed.   Applying both the tests here we feel that this is a


case   where   the   conscience   of   the   community   would   get   shocked   and   it


would definitely expect the death penalty for the appellant.  Three persons


who   had   nothing   to   do   with   the   conspirators   were   killed   in   this   case.


Therefore,   even  Machhi   Singh's   case   (cited   supra)  would   aptly   apply.


Even in  Bachan Singh v. State of Punjab  [AIR 1980 SC 898]  case, this


Court referred to the penal statutes of States in USA framed after Furman


v. Georgia  (1972) 33 L Ed 2d 346: 408 US 238)  in general and Clause


2(a),(b),   (c)   and   (d)   of   the   Indian   Penal   Code   (Amendment)   Bill   duly


passed   in   1978   by   Rajya   Sabha.     Following   aggravating   circumstances


were suggested by the Court in that case as aggravating circumstances:-




               "(a)     If the murder has been committed after previous

                        planning and involves extreme brutality; or


               (b)      if the murder involves exceptional depravity; or


               (c)      if the murder is of a member of any of the armed

                        forces of the Union or of a member of any police

                        force or of any public servant and was committed-


                        (i)      while   such   member   or   public   servant   was

                                 on duty; or


                        (ii)     in   consequence   of   anything   done   or

                                 attempted   to   be   done   by   such   member   or

                                 public servant in the lawful discharge of his

                                 duty   as   such   member   or   public   servant

                                 whether at the time of murder he was such


                                             15



                               member or public servant, as the case may

                               be,   or   had   ceased   to   be   such   member   of

                               public servant; or


               (d)     if the murder is of a person who had acted in the

                       lawful   discharge   of   his   duty   under   S.43   of   the

                       Code   of   Criminal   Procedure,   1973,   or   who   had

                       rendered   assistance   to   a   Magistrate   or   a   police

                       officer   demanding   his   aid   or   requiring   his

                       assistance   under   S.37   and   S.129   of   the   said

                       Code."


       The   Court   then   observed   that   there   could   be   no   objection   to   the


acceptance of these indicators.  The Court, however, preferred not to fetter


the judicial conscience by attempting to make an exhausting enumeration


one way or the other.  The circumstance at "(c)" would be fully covering the


present   case   since   the   three   soldiers   who   lost   their   lives   were   the


members of the armed forces and Abdullah one of them was actually doing


his Sentry duty though there is no evidence available about as to what duty


the other two were doing.  But there is no reason to hold that their murder


was  in any manner  prompted by any provocation or  action on their  part.


This   would   be   an   additional   circumstance   according   to   us   which   would


justify the death sentence.   During the whole debate the learned defence


counsel did not attempt to bring any mitigating circumstance.   In fact, this


is a unique case where there is one most aggravating circumstance that it


was   a   direct   attack   on   the   unity,   integrity   and   sovereignty   of   India   by


foreigners.  Thus, it was an attack on Mother India.  This is apart from the


fact that as many as three persons had lost their lives.   The conspirators


                                            15



had no place in India.   Appellant was a foreign national and had entered


India without any authorization or even justification.  This is apart from the


fact   that   the   appellant   built   up   a   conspiracy   by   practicing   deceit   and


committing various other offences in furtherance of the conspiracy to wage


war against India as also to commit murders by launching an unprovoked


attack on the soldiers of Indian Army.  We, therefore, have no doubts that


death sentence was the only sentence in the peculiar circumstance of this


case.  We, therefore, confirm the judgment of the trial Court and the High


Court   convicting   the   accused   and   awarding   death   sentence   for   the


offences under Section 302, IPC.  We also confirm all the other sentences


on all other counts and dismiss these appeals.




                                                             ..............................J.


                                                             [V.S. Sirpurkar]


                                                             ..............................J.


                                                             [T.S. Thakur]


August 10, 2011;


New Delhi.