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Saturday, July 4, 2015

The language used as a means of communication between the confessing accused and the recording officer being Hindi or Hindustani, such recording of confession in Hindi language is completely in conformity with the requirement of the Rule. The conclusion drawn by the trial court that Ghulam Nabi being Pakistani national his language must be Urdu and therefore the recording of the confession in a language other than Urdu, must be held to be not in conformity, is wrong. Nothing has been placed on record that the confessing accused did not understand the line of questioning or that he was not made to understand the contents of the confession after the recording was complete. In our view the assessment made by the trial court in this behalf is completely incorrect and against the record.We find no infirmity in the recording of confession by PW1 S.K. Bhatnagar. The confession of accused Ghulam Nabi was recorded in keeping with the guidelines issued by this Court and was in accordance with the statutory requirement. Holding the confession to be admissible, we have gone through the contents of the confession which clearly admitted the guilt of the confessing accused and his involvement right from the hatching of conspiracy to the execution thereof. The confessing accused had spoken about various stages since the conspiracy was hatched and how the confessing accused had helped in transporting the explosive material from across the border and then placed it in the pits, dug inside the stadium and on the main road outside the stadium. The consequential explosion of the bombs which was timed with the celebrations on account of Republic Day was definitely designed to disrupt the celebrations and terrorize the people in general and those who had gathered at the time of celebration in particular. We, therefore, hold that from the confession, the involvement of accused Ghulam Nabi in entering into the conspiracy, execution and facilitation thereof is completely made out. As held by this Court, the confession of an accused is a substantive piece of evidence and his conviction can be founded on such confession itself. We, therefore, hold Ghulam Nabi Guide to be guilty of the offences with which he was charged. However, as regards the other accused, namely, Wasim Ahmed Malik, apart from the confession of Ghulam Nabi Guide that is to say the confession of co-accused, nothing has been placed on record which could lend corroboration as regards his role in the conspiracy and execution thereof. We have minutely considered the material but could not locate anything which could afford such corroboration. Going by the rule of prudence as highlighted by this Court in the case of State vs. Nalini (supra), we do not find any justification to reverse the finding of acquittal as recorded in respect of said Wasim Ahmed Malik. We, therefore, affirm the acquittal of Wasim Ahmed Malik as recorded by the trial court in respect of the offences with which he was charged.Consequently, this appeal is partly allowed. The acquittal of Wasim Ahmed Malik is confirmed. However, the order of acquittal in respect of Ghulam Nabi is set aside and said accused Ghulam Nabi Guide is convicted of the offences with which he was charged. This being an appeal against the decision of acquittal rendered by the trial court, we deem it appropriate to issue notice to said Ghulam Nabi Guide on the issue of sentence. The authorities are directed to produce said Ghulam Nabi Guide before this Court so that appropriate opportunity to address this Court on the sentence to be awarded to him, can be afforded to him.

Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                        CRIMINAL APPEAL NO.1743/2009




      State of J&K                                           …. Appellant


                                   Versus


      Wasim Ahmed Malik @ Hamid and another.  …. Respondents.




                               J U D G M E N T




      Uday Umesh Lalit, J.


   1.  This  Appeal  under  section  19  of  the  Terrorist  and  Disruptive
      Activities (Prevention) Act 1987 (hereinafter referred to as the  Act)
      challenges the judgment and order dated 02.03.2009 passed by the third
      Additional Sessions Judge i.e. the Designated Court under the  Act  in
      File No. 26/Challan, acquitting the respondents of the offences  under
      sections 3 and 4 of the Act, section 120-B read with sections 302, 307
      and 34 of Ranbir Penal Code and sections 4 and  5  of  the  Explosives
      Substances Act, 1908 arising out of FIR No. 12 of 1995.


      2.    On the occasion of celebration of Republic Day on 26.01.1995  at
      about 10:20 a.m. in Maulana Azad Memorial Stadium, Jammu,  General  KV
      Krishna Rao, Governor of Jammu  and  Kashmir  was  addressing  a  huge
      gathering of about 40,000 people  including  high  dignitaries,  VIPs,
      Senior Officers of  the  Govt.,  leaders  of   political  parties  and
      respectable citizens when three powerful bomb explosions took place at
      the site of public address system, near the dais and on the main road,
      outside the stadium resulting in killing  of  eight  persons,  and  in
      causing grievous injuries to eighteen persons and  disruption  of  the
      celebrations.  Soon after the  incident  FIR  No.  12  of  1995  dated
      26.01.1995 of PS Nowbad, Jammu (J&K) relating to said bomb blasts  was
      registered. At the request of the Government of Jammu and Kashmir, the
      investigation was  transferred  to  Central  Bureau  of  Investigation
      (C.B.I.) vide notification  dated  31.01.1995  and  Regular  Case  No.
      RC1(5)/95-SIUV was registered in CBI on 31.01.1995.


      3.    After investigation was taken over by CBI, one Mohd.  Irfan  was
      arrested on 07.04.1995. On 09.04.1995 he  made  disclosure  statements
      leading to certain recoveries. On 24.04.1995 said Mohd. Irfan  made  a
      confessional statement which was recorded by PW2  Sharad  Kumar,  S.P.
      CBI, under section 15 of the Act, inter alia, to the following effect:
           a)     Accused  Mohd.  Irfan   along  with  Maj  Tariq  of  ISI,
           Pakistan, Ahmed Hassan, Commander of HM, Muzaffarabad,  Mebhoob-
           ul-Haq, Commander of HM, Sialkot, Amir-ul-Haq,  Naib  Commander,
           HM and Zia Kashmiri and others  unknown  had  assembled  in  the
           office of Jamait-e-Islami,  Model  Town,  Sialkot,  Pakistan  on
           26.12.1994 and hatched  a  conspiracy  to  kill  Governor,  J&K,
           Senior officers of the Government and other persons with a  view
           to strike terror in Jammu city on the occasion of  Republic  Day
           Celebrations. In furtherance of  the  said  conspiracy,  accused
           Mohd. Irfan, Menboob-ul-Haq and Ahmed Hassan visited the  office
           of ISI situated near village Langaryali, Sialkot Cantt. Pakistan
           on 26.12.1994  and  held  a  meeting  with  Major  Tariq,  Major
           Ibrahim, Captain Farhan, Subedar  Anwar  of  ISI,  Pakistan  and
           Wasim Ahmed @ Hamid S/o Jallaluddin Malik  R/o  Asthan  Mohalla,
           Kishtawar, J&K and hatched the plan. In  order  to  achieve  the
           object of the aforesaid criminal  conspiracy,  they  decided  to
           carry two pre-set time bombs across  the  border  to  Jammu  for
           planting the same, one near the dais  and  the  other  near  the
           pavilion of MAM Stadium Jammu and deputed Mohd. Irfan and Ghulam
           Nabi for this task.


           b)    On 23.12.1994 in the ISI Office,  Sialkot  at  11:00  a.m.
           Mohd. Irfan and Wasim Ahmed were imparted  knowledge  about  the
           bombs and their functioning and operations,  which  were  to  be
           planted in the MAM Stadium. They were also  issued  instructions
           to protect the bombs from water and to plant them in the Stadium
           after the night would set in, to take two  detonators  for  each
           bomb, to carry the Khurpa for digging the pits, and not to leave
           any clue of the planting of the bombs at  the  site.  They  were
           also told that the bombs were pre set so to explode at the  time
           of the Republic Day function on 26.01.1995.  Capt.  Farhan  gave
           Rs. 3,000/- each to Mohd. Irfan and Wasim Ahmed and Rs.  2,000/-
           to Ghulam Nabi in Indian Currency and also a sack to Mohd. Irfan
           wherein he put his boots,  trouser,  khurpa  and  pistol.  Major
           Ibrahim provided one time bomb of 5 Kg each to Mohd.  Irfan  and
           Wasim Ahmed duly wrapped in black polythene and  green  coloured
           sacks. All of them left ISI Office, Sialkot  and  reached  Check
           Post Jhumian at about 10:00 p.m. on  28.12.1994.  Subedar  Anwar
           and Mahboob-ul-Haq returned to Sialkot, while Mohd. Irfan, Wasim
           Ahmed and Ghulam Nabi crossed the border and entered into Indian
           Territory concealed  the  bombs  and  khurpa  near  River  Tawi,
           outside Jammu city.


           c)    On 30.12.1994 Mohd. Irfan, Wasim Ahmed   and  Ghulam  Nabi
           went to a park where Ghulam Nabi stayed behind while Mohd. Irfan
           and Wasim Ahmed went to MAM Stadium where Wasim  Ahmed   pointed
           out to Mohd. Irfan a place near the dais and also  place  inside
           the fenced area  of  north  Pavilion  where  bombs  were  to  be
           planted. On 30.12.1994 at about 7:45 p.m., Mohd. Irfan and Wasim
           Ahmed took out two explosive devices and khurpa and left for MAM
           Stadium leaving Ghulam Nabi there. Both  carried  one  explosive
           device each and entered into the stadium  along  with  ‘khurpa’.
           Inside the stadium, they connected detonators and  batteries  to
           the device and planted two explosive devices; one near the  dais
           and other near the fenced area of the  Northern  Pavilion  after
           digging the pits for each bomb. After planting the  bombs,  they
           filled both the pits with earth and made shoe marks  thereon  to
           avoid suspicion. Thereafter, both left for  Tawi  Bridge.  Mohd.
           Irfan concealed the ‘khurpa’ in the  bushes  near  Tawi  Bridge.
           Thereafter, both Mohd. Irfan and Wasim  Ahmed  contacted  Ghulam
           Nabi and all three reached Pakistani Check  Post  Jhumian  after
           crossing the international border from where they were taken  to
           the ISI Office Sialkot. Maj. Tariq, Maj.  Ibrahim,  Maj.  Aamir,
           Capt.  Farhan  praised  Wasim  Ahmed   and   Mohd.   Irfan   for
           accomplishing the task. As desired by  Captain  Farhan,  Subedar
           Anwar paid Rs. 5,000/- to Mohd. Irfan for the work done by him.


           d)    On 03.01.1995 said Mohd. Irfan and Wasim Ahmed were  again
           deputed by Mahboob-Ul-Haq to plant one time bomb of 10  Kg.  and
           two bombs of 5 Kg. each outside MAM Stadium, Jammu and  pursuant
           thereto they dug a pit on the main road leading to that  stadium
           and put the bomb weighing 10 Kg. on 09.01.1995.  The  other  two
           bombs of 5 Kg. each could not be put  because  of  rains,  which
           bombs were then concealed near Tawi River.


           e)    On 26.01.1995 Mohd. Irfan,  Mahboob-ul-Haq,  Aamir-ul-Haq,
           Amzad and 2/3 other Kashmiri boys were present in the office  of
           Jamait-e-Islami, Sialkot. They had waited for the news  of  bomb
           explosions, killing of VIPs and  general  public  in  Jammu.  At
           about 12 noon they received news about  the  explosions  in  MAM
           Stadium, in which lot of persons had  been  killed  and  several
           other injured. After the incident,  Maj.  Tariq,  Capt.  Farhan,
           Subedar Anwar called Mohd. Irfan, Wasim Ahmed and Mahboob-ul-Haq
           to ISI Office, Sialkot and praised them for planting  the  bombs
           and declared that their mission had been successful even  though
           the Governor of J&K had providentially  escaped.  On  30.01.1995
           Mohd. Irfan, Wasim Ahmed and Mahboob-ul-Haq  visited  office  of
           Jamai-e-Islami, Muzaffarabad and met  Salauddin,  Chief  of  the
           Hizbul Mujahideen who declared that their mission was to  spread
           terrorism in J&K which got fulfilled with the bomb explosions in
           MAM Stadium. Salauddin awarded one shield and Rs. 10,000/-  each
           to Mohd. Irfan and Wasim Ahmed.




      4.    After completion of investigation, charge  sheet  was  filed  on
      28.09.1995 in the Court of the Special Judge, Designated  TADA  Court,
      Jammu (J&K) u/s 120-B RPC r/w section 302, 34, 307 RPC, 4 and 5 of the
      Explosives Substances Act and section 3(2), 4 and 6 of  the  Act.  The
      charge sheet was filed against Mohammad Irfan  @  Anwar,  a  Pakistani
      National and other absconding accused. While the  matter  was  pending
      before the Trial Court, Ghulam Nabi Guide was arrested by  J&K  police
      on 25.10.1995. Upon CBI making an appropriate application, custody  of
      Ghulam Nabi Guide was granted to CBI on 04.12.1995. While in  custody,
      said Ghulam  Nabi  Guide  made  a  confessional  statement  which  was
      recorded by PW1  S.K.  Bhatnagar  Superintendent  of  Police,  CBI  on
      18.12.1995  u/s.  15  of  the  Act  wherein  he  confessed  about  his
      involvement as also that of Mohd. Irfan, Wasim Ahmed  Malik  @  Hamid,
      Major Tariq, Major Ibrahim, Major Amir, Captain Farhan, Subedar  Anwar
      (all of ISI, Pakistan), Ahmed Hassan, Commander of HM, Sialkot,  Amir-
      ul-Haq, Naib Commander, HM Sialkot and Zia Kashmiri R/o  Kupwara,  J&K
      in the criminal conspiracy culminating in the explosions  at  the  MAM
      Stadium, Jammu 26.01.1955. Supplementary charge  sheet  was  therefore
      filed against him. During the pendency of the trial,  in  a  jailbreak
      said Mohd. Irfan escaped from high security jail. While the trial  was
      pending and had reached the concluding stage,  another  accused  named
      Wasim Ahmed Malik, who was marked as absconding accused, was  arrested
      on 15.01.2009. Since according to the prosecution there was sufficient
      evidence in the form of confessional statements  of  Mohd.  Irfan  and
      Ghulam Nabi Guide, said Wasim Ahmed Malik was supplied with copies  of
      all the relevant material and produced before the  Trial  Court.  Thus
      only two accused i.e. Ghulam Nabi Guide and Wasim Ahmed Malik, present
      respondents, were  tried while the others remained absconding.


      5.    The evidence led by prosecution during the trial  was  to  prove
      following aspects, namely:-
            a)    That there were three bomb  explosions  on  26.01.1995  at
           10:20 a.m. at the places in question, i.e. near the dais and  at
           the site of public address system in MAM Stadium and on the main
           road outside the Stadium.
            b)    That at the time of such bomb explosions, large  gathering
           had assembled while the Governor was addressing on the  occasion
           of Republic Day Celebrations.
            c)    That it resulted in death  of  eight  persons  and  caused
           grievous injuries to eighteen  persons  and  disruption  of  the
           Celebrations.
            d)    That the act in question was a terrorist act,  within  the
           meaning of the Act.
            e)    That it was an act of conspiracy hatched  by  the  accused
           being tried before the court and by the absconding accused and
            f)    That the involvement of the accused before the  court  was
           completely made out.




      6.    Various witnesses were examined and material was produced by the
      prosecution to establish its  case.  Since  the  aspects  (a)  to  (d)
      mentioned in the preceding paragraph were never challenged, we refrain
      from dealing with evidence pertaining to  said  aspects  (a)  to  (d).
      Proceeding on the basis that  it  was  a  terrorist  act,  where  bomb
      explosions were caused with the idea of terrorizing people in  general
      and those who had assembled there  at  the  gathering  in  particular,
      which resulted in loss of life of eight persons and  injured  eighteen
      persons, we confine the discussion as regards aspects (e) to (f)  i.e.
      the role of the accused in the act in question. The  trial  Court  had
      also confined itself  to  the  question  whether  involvement  of  the
      respondents had been made out or not.


      7.    In order to bring home the involvement of  the  respondents  the
      prosecution relied upon the confessions of Mohd. Irfan and Ghulam Nabi
      recorded under section 15 of the Act. Apart from such confessions  and
      the statements of these accused leading to recovery of certain  facts,
      no direct evidence could be placed on record. The evidence principally
      relied upon by the prosecution can be summarized as under:
           A)     While  in  custody,  accused  Mohd.  Irfan   upon   being
           interrogated, made three disclosure statements, “EXPW-BD/2, EXPW-
           S/3 and EXPW-S/2”.   The  testimony  of  PW86  Harbhajan  Singh,
           Investigating Officer shows that pursuant  to  these  disclosure
           statements two khurpas were recovered and identification of  the
           shop from where a khurpa was purchased was also got done.  Those
           khurpas were identified in court.  The factum of such disclosure
           and consequential recovery was also supported by panch witnesses
           PW23 S.K. Sudan and  PW24  Gautam  Goyal.   PW67  Rajesh  Kumar,
           Inspector, CBI also testified to similar effect.
           B)    On 22.04.1995 another disclosure statement “EXPW-BR”   was
           made by accused Mohd. Irfan leading to the recovery  of  a  bomb
           vide Seizure Memo Ext.PW/BR/1.   The evidence of PW86  Harbhajan
           Singh, PW67 Rajesh Kumar and panch witness PW26 B.R. Saraf  were
           relied upon in that behalf.
           C)    On 22.04.1995 Mohd. Irfan expressed his desire to  confess
           and was produced before  PW2  Sharad  Kumar,  Superintendent  of
           Police.  PW2 Sharad Kumar gave warning to the accused  that  the
           confession could be used against him and also gave him  time  to
           reflect.  The accused was again presented before the witness  on
           23.04.1995 on which date the confessional statement  Ext.PW-SK-3
           of accused Mohd. Irfan was recorded by PW2  Sharad  Kumar.   The
           gist of the confession and the facts as  disclosed  therein  are
           dealt with earlier. The confession of Mohd. Irfan clearly stated
           about the roles of the confessing accused as  well  as  the  co-
           accused.
           D)    After the arrest of Ghulam Nabi  Guide,  his  custody  was
           granted to CBI on 04.12.1995.  He having expressed his desire to
           make a  confessional  statement,  said  Ghulam  Nabi  Guide  was
           produced before PW1 S.K. Bhatnagar,  Superintendent  of  Police,
           CBI on 16.12.1995.  The witness administered  statutory  warning
           to the accused and also gave him time to rethink.  The questions
           were put to the accused which  were  replied  by  him  and  true
           record thereof was made by the witness in Hindi.   According  to
           the witness he had explained everything to the accused and after
           recording of the statement, thumb impression of the accused  was
           taken on the statement.  The accused was again  produced  before
           the witness on 18.12.1995 and having  expressed  the  desire  to
           make a confessional statement, his statement was recorded by the
           witness.  After recording of the statement, it was read over and
           the accused was made  to  understand  the  statement  whereafter
           admitting the statement to be true the  accused  put  his  thumb
           impression.
           E)    The confessing accused Ghulam Nabi Guide was  produced  in
           the court of the Chief Judicial Magistrate, Jammu on 19.12.1995.
            The confessional statement in original in a  sealed  cover  was
           also produced, for  its  onward  submission  to  the  Designated
           Court, Jammu.  The text of the letter was as under:
              “Sir,
                 Kindly find enclosed herewith original statement  (sealed)
           of accused Ghulam Nabi Guide recorded under Section 15 TADA  Act
           in case RC. 1(S)/95/SIU.V for onward submission to  the  Hon’ble
           Judge of Designated Court, Jammu.  The  accused  has  also  been
           brought.
                                  Applicant
                                       Sd/-
                                  19.12.95
                                  (S.K. Bhatnagar)
                                  Supdt. Of Police, CBI,
                                  SIC.II, New Delhi.”


           F)    On the same day,  the  Chief  Judicial  Magistrate,  Jammu
           passed the following order:
                 “Submitted  in  original  to  the  Presiding   Officer   of
                 Designated Court under TADA.  Sealed envelope  is  enclosed
                 herewith.”                              Sd/-
                                  Chief Judicial Magistrate
                                        JAMMU”




      8.    The trial court  acquitted  both  the  respondents  of  all  the
      charges leveled against them.  The case of the prosecution as  regards
      explosion of bombs which resulted in the death of  eight  persons  and
      caused serious injuries  to  18  persons  was  not  disputed  at  all.
      However, the trial court rejected the evidence regarding  confessional
      statement of Ghulam Nabi Guide on the  ground  that  the  confessional
      statement was recorded in Hindi  i.e.  not  in  the  language  of  the
      accused.  It observed that the safeguards provided in Rule 15  of  the
      Rules made under the Act  were  not  adhered  to  and  therefore,  the
      confessional statement of accused Ghulam Nabi Guide was required to be
      discarded. The relevant observations of the trial court in this behalf
      were as under:
           “In the  present  case,  the  confessional  statement  has  been
           recorded in Hindi  and  not  in  the  language  of  accused.  PW
           Habhajan Ram who is the Investigating  Officer  stated  that  he
           cannot say whether accused Ghulam Nabi knows Hindi  or  not.  In
           any case, accused Ghulam Nabi being  a  Pakistan  national,  his
           language cannot be Hindi. Even so, PW Sushil Kumar  who  is  the
           recording officer  of  the  confessional  statement  of  accused
           Ghulam Nabi has stated that accused had given the  statement  in
           Urdu and he had written the same in Hindi. No  reason  has  been
           given by the said witness as to why  it  was  not  practical  to
           record the confession of accused in Urdu. Even  so,  the  record
           does not show that Hindi is the language used by PW Sushil Kumar
           for official purposes. Rather, the record would  show  that  the
           said witness Sushil Kumar uses English  languages  for  official
           purposes. This is apparent from the letter  EXPW-SK/III  written
           by him to  the  CJM  while  forwarding  the  confession  to  the
           Designated Court. And finally, the language  of  the  Designated
           Court is Urdu or English.”


      9.    The trial  court  further  observed  that  as  apart  from  such
      confessional statement there was nothing else against said Ghulam Nabi
      Guide, the accused was entitled to be acquitted.  The  other  accused,
      namely, Wasim Ahmed had not given any confessional statement  and  the
      case against him completely depended upon the  confessional  statement
      of co-accused Ghulam Nabi Guide.  Consequently accused Wasim Ahmed was
      also held entitled to be acquitted. The  trial  court  thus  acquitted
      both the accused vide its judgment and order dated  02.03.2009,  which
      is challenged in the present appeal.
      10.   The record of the present appeal indicates that respondent Wasim
      Ahmed Malik was duly served but chose not to engage  any  lawyer.   It
      was reported  that  respondent  Ghulam  Nabi  Guide  was  residing  in
      Pakistan and was served through the concerned office of the Government
      of India.  However, no appearance was entered on behalf of Ghulam Nabi
      Guide, though duly  served.   Consequently,  Mr.  Dushayant  Parashar,
      learned Advocate was requested to appear for  respondent  Ghulam  Nabi
      Guide  under  instructions  from  the  Supreme  Court  Legal  Services
      Committee.  Since there was no appearance for respondent  Wasim  Ahmed
      Malik by order dt. 12.03.2015, Mr. Dushayant Parashar was requested by
      this Court to represent said Wasim Ahmed Malik as amicus  curiae.   We
      must record our  appreciation  for  the  assistance  rendered  by  Mr.
      Dushyant Parashar.


      11.   Appearing in  support  of  the  appeal  Mr.  P.K.  Dey,  learned
      Advocate submitted:
      (a)   Confession  of  accused  under  Section  15  of  the  Act  is  a
      substantive  piece  of  evidence  and  can  form  the  foundation  for
      conviction of an accused for the offences punishable under the Act.
      (b)   Such confession, subject to the conditions stipulated in Section
      15 of the Act itself, can also be read against the co-accused and form
      basis for his conviction.
      (c)   The confession recorded by PW1 S.K. Bhatnagar  itself  disclosed
      that the entire statement was read over to the confessing accused  and
      only thereafter thumb impression of the confessing accused  was  taken
      under the statement.  Since the language used during such conversation
      was Hindi which the confessing accused could understand, the recording
      of the statement was done in Hindi and such recording  was  completely
      in conformity with Rule 15 of the Rules framed under the Act.
      (d)   Lastly, soon after recording of the confession,  the  confessing
      accused  was  produced  before  the  Chief  Judicial  Magistrate.  The
      Confessional statement in a sealed cover was also produced for  onward
      transmission to the Designated Court.  Thus, the guidelines also stood
      completely complied with.
            Mr. Dushayant  Parashar,  learned  amicus  curiae  attempted  to
      support the judgment under appeal.  The learned amicus  curiae  fairly
      accepted that the document recording the confession  itself  disclosed
      that  the  entire  statement  was  read  over  and  explained  to  the
      confessing accused.  He further fairly  accepted  that  there  was  no
      effective cross examination on this issue when PW1 S.K. Bhatnagar  was
      in the box.


      12.   Section 15(1) of  the  Act  expressly  makes  confession  of  an
      accused  recorded by a Police Officer admissible in a  trial  of  such
      person, co-accused,  abettor or conspirator for an offence  punishable
      under the   Act.   While  upholding  the  constitutional  validity  of
      Section 15(1) of the Act, this Court in  Kartar  Singh  vs.  State  of
      Punjab[1] specifically referred to the statutory obligation in Section
      15(2) of the Act and   conditions imposed in Rule 15 of the TADA Rules
      in paras 258 and 259 respectively  and  then  proceeded  to  lay  down
      certain guidelines in para 263.
           The extent of admissibility of  such  confession  under  Section
      15(1) of the Act as against a co-accused was considered by this  Court
      in State vs. Nalini & Others[2].  Wadhwa J. in para   424 observed  as
      under:

           “424. In view of the above discussions, we hold the  confessions
           of the accused in the present case to be voluntarily and validly
           made and under Section 15 of TADA confession of  an  accused  is
           admissible against  a  co-accused  as  a  substantive  evidence.
           Substantive  evidence,  however,  does  not   necessarily   mean
           substantial  evidence.  It  is  the  quality  of  evidence  that
           matters. As to what value is to be attached to a confession will
           fall within the domain of appreciation of evidence. As a  matter
           of prudence, the  court  may  look  for  some  corroboration  if
           confession is to be used against a co-accused though  that  will
           again be within the sphere of appraisal of evidence.”


      Quadri J. struck a similar note of caution in para 706 as under:


           “706. It is also to be  borne  in  mind  that  the  evidence  of
           confession of a co-accused is not required to be given on  oath,
           nor is it given in the presence of the accused, and its veracity
           cannot be tested by cross-examination. Though the evidence of an
           accomplice is free from these shortcomings yet an accomplice  is
           a person who having taken part in the commission of offence,  to
           save himself, betrayed his former associates and placed  himself
           on a safer plank — “a position in which he can  hardly  fail  to
           have a strong bias in favour of the prosecution”,  the  position
           of the accused who has given confessional statement  implicating
           a co-accused is that he has placed himself on the same plank and
           thus he sinks or sails along with the co-accused on the basis of
           his confession. For these reasons, insofar as use of  confession
           of an  accused  against  a  co-accused  is  concerned,  rule  of
           prudence cautions the judicial  discretion  that  it  cannot  be
           relied upon unless corroborated generally by other  evidence  on
           record.”




      13.   It is settled position in law that a confession  recorded  under
      Section 15(1) of the Act in accordance with statutory requirements and
      in keeping with the guidelines is admissible against the maker, his co-
      accused, abettor or conspirator in a trial for an  offence  under  the
      Act, subject to the condition stipulated in  the  proviso  to  Section
      15(1).  Such confession is taken as substantive piece of evidence  and
      can form the foundation or basis for  conviction  of  the  maker,  co-
      accused, abettor or  conspirator.   However,   the  note  of   caution
      struck by  this Court is, insofar as use of confession of  an  accused
      against a co-accused is concerned,  rule of   prudence  would  require
      the Court not to rely thereon unless corroborated generally  by  other
      evidence on record.


      14.   With these principles in mind, we now turn to  the  requirements
      of Rule 15(1) of TADA Rules and the facts in the matter.   Rule  15(1)
      stipulates that the confession “shall invariably be  recorded  in  the
      language in  which  such  confession  is  made  and  if  that  is  not
      practicable, in the language used by such police officer for  official
      purposes or  in  the  language  of  the  Designated  Court  ……”.   The
      expression “invariably” itself suggests that the requirement under the
      Rule is discretionary and not mandatory.  The record  in  the  present
      matter is very clear that  the  confessing  accused  Ghulam  Nabi  was
      produced before PW1 S.K. Bhatnagar on 16.12.1995, was given  statutory
      warning and time to reflect.  Everything was explained to him and only
      thereafter his thumb impression was taken.  On the next occasion  when
      the confessing accused was again produced  before  the  witness,  soon
      after the recording of the confession it was again explained  to  him,
      read over and only thereafter the thumb impression was taken.   At  no
      stage during the recording on these two occasions, nor  at  the  stage
      when the witness was in the box, there is anything on record, or  even
      a suggestion that the confessing accused did not understand or was not
      made to understand the contents of the confession.   The  contents  of
      the confession also disclose that many of the assertions are  personal
      to the confessing accused which  could  only  be  gathered  after  due
      conversation with the Recording Officer.

      15.  The language  used  as  a  means  of  communication  between  the
      confessing  accused  and  the  recording  officer   being   Hindi   or
      Hindustani,  such  recording  of  confession  in  Hindi  language   is
      completely in conformity  with  the  requirement  of  the  Rule.   The
      conclusion drawn by the trial court that Ghulam Nabi  being  Pakistani
      national his language must be Urdu and therefore the recording of  the
      confession in a language other than Urdu, must be held to  be  not  in
      conformity, is wrong.  Nothing has been  placed  on  record  that  the
      confessing accused did not understand the line of questioning or  that
      he was not made to understand the contents of the confession after the
      recording was complete.  In our view the assessment made by the  trial
      court in this behalf is completely incorrect and against the record.


      16.   We find no infirmity in the recording of confession by PW1  S.K.
      Bhatnagar. The confession of  accused  Ghulam  Nabi  was  recorded  in
      keeping with the guidelines issued by this Court and was in accordance
      with  the  statutory  requirement.    Holding  the  confession  to  be
      admissible, we have gone through the contents of the confession  which
      clearly  admitted  the  guilt  of  the  confessing  accused  and   his
      involvement right from the hatching of  conspiracy  to  the  execution
      thereof.  The confessing accused had spoken about various stages since
      the conspiracy was hatched and how the confessing accused  had  helped
      in transporting the explosive material from across  the  border    and
      then placed it in the pits, dug inside the stadium  and  on  the  main
      road outside the stadium.   The consequential explosion of  the  bombs
      which was timed with the celebrations on account of   Republic Day was
      definitely designed   to disrupt  the celebrations  and  terrorize the
      people in  general  and   those  who  had  gathered  at  the  time  of
      celebration  in  particular.    We,  therefore,  hold  that  from  the
      confession, the involvement of accused Ghulam Nabi  in  entering  into
      the conspiracy,  execution and  facilitation  thereof  is   completely
      made out.  As held by this Court, the confession of an  accused  is  a
      substantive piece of evidence and his conviction  can  be  founded  on
      such confession itself.  We, therefore, hold Ghulam Nabi Guide  to  be
      guilty of the offences with which he was charged.

      17.    However, as regards the other  accused,  namely,  Wasim   Ahmed
      Malik,  apart from  the confession of Ghulam Nabi Guide that is to say
      the confession of co-accused,  nothing has been placed on record which
      could lend corroboration as regards his role  in  the  conspiracy  and
      execution thereof.     We have minutely considered  the  material  but
      could not locate  anything  which  could  afford  such  corroboration.
      Going by the rule of prudence as highlighted by this Court in the case
      of State vs. Nalini (supra), we  do  not  find  any  justification  to
      reverse the finding of  acquittal as  recorded   in  respect  of  said
      Wasim Ahmed Malik.  We,  therefore, affirm   the  acquittal  of  Wasim
      Ahmed Malik as recorded by the trial court  in respect of the offences
      with which he was charged.

      18.   Consequently, this appeal is partly allowed.  The  acquittal  of
      Wasim Ahmed Malik is confirmed.   However,   the order of acquittal in
      respect of Ghulam Nabi is set aside and said accused Ghulam Nabi Guide
      is convicted of the offences with which he was charged.  This being an
      appeal against the decision of acquittal rendered by the trial  court,
      we deem it appropriate to issue notice to said Ghulam  Nabi  Guide  on
      the issue of sentence.  The authorities are directed to  produce  said
      Ghulam Nabi Guide before this Court so that appropriate opportunity to
      address this Court on the sentence  to  be  awarded  to  him,  can  be
      afforded to him.


      19.     The  appeal  stands  allowed  in  the  aforesaid  terms.   The
      authorities are directed to ensure that Ghulam Nabi Guide is taken  in
      custody forthwith and brought before this Court  for  the  hearing  on
      sentence.

      20.   We also direct the Supreme Court Legal Services Committee to pay
      to  Mr.  Dushyant  Parashar  Rs.20,000/-  as  remuneration   for   the
      assistance rendered to this Court.





                                                                …………………………J.
                                              (A.K. Sikri)






                                                                …………………………J.
                                              (Uday Umesh Lalit)


      New Delhi,
      July 01, 2015
-----------------------
      [1] (1994)3 SCC 569
      [2] (1999)5 SCC 253

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