MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF DELHI

Citation: [2011] 10 S.C.R. 56

Court: Supreme Court of India

Bench: V.S. SIRPURKAR, T.S. THAKUR

Case summary

MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF DELHI.pdf

Judgment text

[2011] 10 S. C. R. 56 MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF DELHI (Criminal Appeal Nos. 98-99 of 2009) AUGUST 10, 2011 [V. S. SIRPURKAR AND T. S. THAKUR, JJ. ) CONSTITUTION OF IND/A, 1950: Article 136 - Scope of - Held: Supreme Court ordinarily does not go into the appreciation of evidence, particularly, where there are concurrent findings of facts - However, the Court examined the oral and documentary evidence not only relating to the appellant, but also to the other accused persons - As a result, the Court is of the view that the courts below have fully considered the oral and documentary evidence for coming to the conclusions that ther did. PENAL CODE, 1860 ss. 121, 121-A, 120-8 rlw s. 302, 18613531120-8, 4681471 and 4201120-8 - Conspiracy to wage war against and to overawe Government of India - Red Fort attack - Three soldiers killed by intruders - Circumstantial evidence - Appellan.

t-accused, a Pakistani national and member of an international terrorist organization, apprehended on the basis of a cell phone number - On his disclosure statements, sophisticated weapons used in the attack, hand grenades, diary etc. recovered leading to police encounter of his associate and seizure of documents from the office of a 'hawa/a' dealer (absconding) - Some accused absconding and three killed in encounters - Conviction of appellantaccused and sentence of death awarded by trial court, confirmed by High Court - Other accused acquitted by High Court - HELD: The offence of conspiring to wage a war is proved to the hilt against the appellant, for which he has been DELHI ·rightly held guilty of the offence punishable u/s. 121 and 121- A, /PC - The appellant is also rightly held guilty of the offence punishable u/s. 120-B rlw s. 302, /PC - 7he High Court rightly came to the conclusion that the appellant was responsible for the incident.

of shooting inside the Red Fort on the night of 22. 12. 2000, which resulted in the death of three soldiers of Army - The Court agrees with the verdict of the trial court as well as the High Court-Arms Act, 1959 - s. 25 - Explosive Substances Act, 1908 - s. 4 - Foreigners Act, 1946 - s. 4 evidence - Circumstantial evidence-Sentence/sentencing. ss. 121 and 121-A - 'Conspiracy to wage· war against Government of India' - Explained - Held: 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 there was a definite plan and conspiracy - It was undoubtedly an extremely well-planned attempt to overawe and to wage war against the Government of India - Some of the associates of the appellant were killed and others are absconding - Thus, 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.

Sentence/Sentencing: Rarest of rare case - Attack on Indian Army stationed in Red Fort· - Three soldiers killed by intruders - HELD: High court concurred with the finding of the trial court that this was a rarest of the rare case - This was a unique case where Red Fort, a place of paramount importance for every Indian heart was attacked where three Indian soldiers lost their lives - It was a blatant, braze,nfaced and audacious act aimed to over awe the Government of India - Therefore, this case becomes a rarest of rare case - This was nothing but an undeclared war by some foreign mercenaries like the appellant and his other partners, in conspiracy, who either got killed or escaped - The Court is in complete agreement with the findings regarding the incriminating circumstances as recorded.

by the High Court - The case satisfies both the tests, namely, s shocking the conscience of the community and crime of enormous proportion, as multiple murders were also committed - The sentence of death awarded by courts below is upheld - Penal Code, 1860 - s. 121, 121-A, 120-B/302. EVIDENCE: Circumstantial evidence - Principles explained - Red Fort attack - HELD: Cartridge cases found inside the Red Fort and AK 56 rifles found outside, established that the attack was made by intruders with sophisticated weapons -Accused apprehended on the basis of a cell phone number - He being 0 Pakistani national, had got a ration card, a driving licence, opened bank accounts on fake addresses and identities, opened a computer centre, married an Indian citizen just 15 days before the attack - Before and after the attack he received calls from Pakistan and made calls to BBC correspondents in Delhi and Srinagar - A number of incriminating articles including a pistol recovered from his .

possession and hand grenades recovered at his instance - On his disclosure statement Police reached his associate who was then killed in an encounter - It is obvious that the appellant was a very important wheel in the whole machinery which was working against the sovereignty of this country, and 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 - Prosecution was successful in establishing the circumstances against the appellant, individually, as well as, cumulatively - Penal Code, 1860 - ss. 121, 121-A, 120-B rlw s. 302 /PC.

INVEST/GA TION: Disclosure statement of accused and recoveries of DELHI incriminating articles - 'Arresting' of accused and recording of his statement - Held: 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 - As regards the failure to record the information, it must be held that it is not always necessary - The essence of the proof of a discovery uls. 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 - Therefore, there is nothing wrong with the discovery.

even if it is assumed that the information was not "recorded" and it is held that immediately after the accused had been apprehended, he gave the information which was known to him alone and in pursuance of which a very material discovery was made - However, in the instant case, there is evidence that the accused was "arrested" and his disclosure statement was recorded - Evidence Act, 1872 - s. 27.

Role of investigating agency -Held: The investigation in the instant case was both scientific and fair 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 in a polythene packet - Compliments must be paid to the Investigating Officer as also to all others associated with the investigation for being objective and methodical in their approach - It has to be borne in mind that not a single incide,nce 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. .

;R/MINAL TRIAL: Role of trial court and High Court - Held: In the instant case, compliments must be paid to the trial court and the High Court - The trial held before the trial Judge was the epitome of fairness, where every opportunity was given to the accused 8 persons and more particularly, to the appellant - Similarly, the High Court was a/so very fair in giving all the possible latitude and in giving patient hearing to the accused-appellant. The appellant, a Pakistani national and a member of an international terrorist organization known as Lashkare-Toiba (LeT), alongwith others, was prosecuted for the attack on the Red Fort. The prosecution case was that in furtherance of a conspiracy to overawe India by terrorist activities in different parts of the country and to o fulfil that object the accused-appellant and his fellow terrorists had planned an attack on Army stationed inside the Red Fort. In order to execute the plan, some intruders entered the Red Fort at about 9. 00 p. m.

on 22. 12. 2000 and started indiscriminate firing and gunned down one sentry and two other Army personnel and when the Quick Reaction Team returned the firing, the intruders escaped by scaling over the rear side boundary wall of the Red Fort. During investigation and search, the police found a polythene packet which had fallen down from the p"acket of one of the intruders while scaling down the rear wall of the Red Fort. The said packet contained some currency notes and a piece of paper (Ext. PW-183/3) on which a mobile no. 9811278510 was mentioned. This mobile number led to the arrest of the appellant and on his statement the police caught 10 more persons. The trial court convicted the appellant u/ss. 120-B, 121, 121-A, 186/ 353/120-B, 120-B read with s. 302, ss. 468/471/474, 420/ 120-B IPC, s. 25 of Arms Act, s. 4 of Explosive Substances Act and s. 4 of Foreigners Act. He was, inter a/ia, awarded death sentence u/s 121 IPC for waging was against the Government of India.

He was also awarded DELHI death sentence u/s 120-B r/w s. 302 IPC. The other. accused convicted by trial court of various offences were acquitted by the High Court. However, the High Court confirmed the conviction and death sentence of the appellant. Dismissing the appeal, the Court HELD: 1. This Court ordinarily does not go into the appreciation of evidence, particulal'ly, where there are concurrent findings of facts. This Court has very closely examined the judgments of both the courts below and found that there is a thorough discussion as regards the evidence, oral as well as document;3ry, and it was only after a deep consideration of such evidence that the trial court and the appellate court 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, and inspite of the fact that there has been a concurrent verdict against the appellant, this Court examined the oral and documentary evidence not only relating to the appellant, but also to the other accused persons. As a result, this Court is of the view that the courts below have fully considered the oral and documeintary 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 cir some microscopic deficiencies would be extremely limited. (Para 17] (95-D- H; 96-A] 2. 1 From the clear evidence of PW-189, PW-126, PW- 131, PW-134, PW-144 and PW-77, it is evident that some intruders had run away after firing inside the Red Fort and that they had gone towards the Ring Road. The evidence of all these witnesses is trustworthy. The related document is Ext.

PW-77/A which lends full support to the version and suggests that there was an incident of shooting in the Red Fort. The post mortem was conducted on the three bodies by 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. [para 18] [96-H; 97-A-D; 98-D-E] . 2. 2 A number of incriminating articles were found, the most important of the same being the empties of . the bullets fired by the intruders and the arms seized. It is very significant that the prosecution has been able to connect the bullets with the arms seized by them. One of the two rifles was found near Vijay Ghat from the bushes while other (Ext. PW 62/1) was recovered at the instance of appellant on 26. 12. 2000. The prosecution has examined three ballistic experts, namely, PW-202, PW-206 and PW-211. Their reports were proved by PW-202 as Exhibits 202/A and 202/C.

He duly proved and identified the cartridges which were test fired in the laboratory. It is clearly established that the cartridges cases found inside the Red Fort were fired f~om 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 while firing towards intruders, and had clearly opined that those empties could not have been loaded in AK-56 rifles examined by him. Thus, the prosecution has 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.

Further, the recovery of bandoliers and hand grenades goes a long way to prove that the incident which took place inside the Red Fort was at the instance of the intruders. Further, there is the evidence of PW-206 who had examined the rifle found at Balla House during an DELHI encounter in which the other terrorist was killed. That recovery is not seriously disputed. It is, therefore, held that the ghastly incident of shoot out did take place at the instance of some intruders inside the Red Fort, in which three persons lost their lives. [Para 18-21] [98-F; 99-B-E; 100-C-H; 101-C-D] 2. 3 As regards the recovery of the polythene bag containing currency notes and a slip with a mobile number in the morning of 23. 12. 2000, this Court confirms the finding of the trial court and the High 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 abutting the backside wall of the Red Fort.

This Court accepts the finding by the trial court and the High Court that this polythene bag must have slipped from a person who scaled down to the ground. [Para 22] [102-B·C; 105-F-H] 3. 1 The investigation based on the mobile number i. e. 9811278510 written on the slip found in the polythene bag led to locate the computer centre run by the accusedappellant and the flat where he was c:1pprehended in the night of 25. 12. 2000. One pistol 7. 6~1 mouser, six live cartridges, a diary and a mobile phone bearing no. 9811278510 were recovered from his possession. He did not have any licence for this pistol. This is supported by the police record and the recovery witnesses (PW-148). After the accused-appellant was apprehended, he disclosed that his associate (A-21) was staying at his hide out at Batra House. This has come in the evidence of Inspector PW-229.

There is absolutely no reason to disbelieve this evidence of apprehension of the accused by the police team which is also supported by documentary evidence. There is also no doubt that the apprehension of the accused was possible only because of the scientific investigation done by the inspector of Police (PW-229). [Para 28,29,31,34 and 44) [108-E; 112-D-E; 113· A·B] 3. 2 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. This situation 8 almost clinches the issue. From the evidence of PW-150 who proved Ext. PW-150/B, and PW-198 Ext. PW-198 / B1 to B3, the prosecution has been successful in establishing that the cell phone No. 9811278510 was used for making the calls to BBC correspondents in Srinagar and 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 responsibility of LeT therein.

The inter se connection between this cell phone and cell phone No. 9811242154 is also clearly established by the witness 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. [Para 36-37] [121-C·G] 3. 3 This Court, therefore, accepts 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. This Court also confirms 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. 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 of BBC, Delhi, 2452918 (BBC, Srinagar), ·2120223 of 'F' (sister of appellant's wife) and phone No. 6315904 at computer centre is to be found in the evidence of PW-198, PW-229 and PW-230. The attempt of the investigating agency in analyzing the call details of these two numbers DELHI 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 'F's residence and the number at the computer centre. 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. [Para 37) [122-F-H; 123-A-E] . 3. 4 The circumstance which makes these mobile cell phones significant was the evidence of the Inspector of Police (PW-229) who asserted that the mobile No. 9811278510 was constantly used on 14. 11. 2000 to make calls to Pakistan.

(The appellant is admittedly a Pakistani national and was staying in India unauthorizedly). He has further asserted that calls from Pakistan were received on mobile number 9811278510 as also calls from this number were made to BBC correspondents in Delhi and Srinagar, when that mobile number was at different places heading to Red Fort on 22. 12. 2000. There is no reason 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. [Para 39-40) [123-H; 124-A-C; 125- A-H; 126-H] 3. 5 The next significant circumstance is the evidence of PW-162 who 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 'AA' was apprehended while other militant was killed.

According to this witness this message was being passed by a militant called 'AS' of LeT, to a station in Khyber in Pakistan Occupied Kashmir. He proved the document as Ext. PW-1. 62A. The other witness on this point is Constable, BSF Head Quarters Srinagar (PW-175). [Para 41] [126-B-D] 3. 6 All the voluminous evidence would not only corroborate the prosecution version to show the significant role played by the appellant in handling both 8 the cell phone numbers. 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 by way of wireless messages not only about the involvement of the appellant but also about 'AS' who was killed in the encounter as also 'AB' who was a proclaimed offender and was then killed in another encounter. [Para 41] [127-B-D] 4.

1 There are some other significant circumstances o 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 and got a driving license and also opened bank accounts. This was established by the evidence of PWs 1,2,3,7,16,164,165,172, 174,20,31,44,36,56 and 11~ and 163. The only purpose in doing this was to establish that he was living in Delhi legitimately as an Indian national. Thus, not only did the appellant got for 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 Indian cities.

Therefore, it is held that the appellant used a forged ration card and got a driving license giving a false address. [Para 49-52] [135-E-F; 136-A-H; 137-E-H; 138-A-D] 4. 2 The evidence of PW-21, establishes the connection of the appellant with Batala House, where the DELHI encounter took place in which the appellant's companion (A-21) was killed. This is further corroborated by the evidence of PWs 232, 20, 31, 21. Needless to say that he used all these witnesses to his own benefit for carrying out his evil design in pursuance of the conspiracy. He got married to 'RYF' barely a fortnight prior to the incident at the Red Fort. (Para 54, 55 and 58] (139-G; 140-A-F; 145- G-H; 146-A] 5. 1 The prosecution has also brought out the material about the calls made to a Hawala dealer (A-13). The ·investigating agency raided his house on 12. 01. 2001 on the information received from the appellant.

Very significantly, the documents seized at the office of A-13, included a Visa of Islamic Republic of Pakistan and an identity card of NllT etc. The seizure memo is proved by PW-83, who at the relevant time was 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 the hawala dealer and accepted that he used to deliver hawala money. Therefore, this evidence is also extremely significant to support the role played by the appellant in the conspiracy. [Para 42] (127-E-H; 128-A-C] 5. 2 The Hawala dealer (A-13) was found to be an Afghan national and according to the prosecution, he used to supply 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 original accused No. 3 and 4.

According to the prosecution, this money was distributed to the other terrorists in Srinagar. It cannot be disputed that the appellant had connection wtth A-13 who remained absconding till date. This has been established by the evidence of PW-210, PW-79, PW-230, PW-6, PW-52, PW- 16, PW-1, PW-2, PW-3, PW-216 and the related documentary evidence. There is absolutely no explanation by the appellant either by way of crossexamination of the witnesses or by way of his statement u/s. 313 Cr. P. C. as to where all the amounts had come from and why did he deposit huge amounts of Rs. 29,50,000/- in the three accounts. Further very sizeable amount is shown to have been paid to 'RYF' in her account in the State Bank of India. 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.

High Court as well as the trial Court were right in drawing the inferences in respect of these deposits made by the accused. It is obvious that the appellant was a very important wheel in the whole 0 machinery which was working against the sovereignty of this country, and 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. The acquittal of other accused would be of no consequence. [Para 60-65] [146-C-E; 152-G-H; 153-A-E, G] 6. 1 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. . PW-229 had undoubtedly stated that the accused was "arrested" and his disclosure statement was recorded. 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 his associate 'A-21' and about an AK-56 rifle. The witness went on to state further that the accused disclosed that his associate 'A-21 was staying in the hide out at Batla Hoase. He also disclosed that he was having weapons and grenades and he also disclosed DELHI that A-21 was a trained militant of LeT and member of suicide squad.. Indeed, in pursuance of this information given, the investigating team did go to the mentioned address and an encounter did take place wherein A-21 was killed and large amount of ammunition and arms were found at that place. [Para 66] [156-8-G] 6.

2 It is indeed true that normally for proving any such information and attributing the same to the accused, he must be in custody of the prosecution and, and such 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. However, in the instant case, it was indeed a very tense situation requiring extreme diligence on the part of the investigating agency and it 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 all the more necessary because the investigating agency were dealing with an extremely dangerous terrorist causing serious danger to the safety of the society. There is nothing wrong in the approach on the part of the investigating agency.

What is significant is that 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 A- 21 holed up in that address with huge ammunition and the fire arms. In this view of the matter, the· discovery evidence can not be rejected merely because, a formal statement was not recorded and further merely because a formal arrest was not made of the accused. [Para 67] [157-B-G] 6. 3 Besides, 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 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. [Para 68) [157-H; 158-A-B] 6. 4 As regards the failure to record the information, it must be held that it is not always necessary. The essence of the proof of a discovery u/s. 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 and if the court finds the fact of such information having been given by the accused in custody to be credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon. [para 69) [158-D-G] 6. 5 In the instant case, immediately after the apprehension of the appellant, he spilled the information. 1 In pursuance of that information the investigating agency acted with expediency and speed which in the circumstances then prevailing was extremely necessary nay compulsory. Ultimately, this timely and quick action yielded results and indeed a dreaded terrorist was found holed up in the address supplied by the appellant- DELHI accused with sizeable ammunition and fire arms.

Therefore, there is nothing wrong with the discovery even if it is assumed that the information was not "recorded" and it is held that immediately after the accused had been apprehended, he gave the information which was known to him alone and in pursuance of which a very material discovery was made. [Para 69] [158-G-H; 159-A-E] Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl. SCR 483 =1995 Suppl (1) SCC 80; Vikram Singh & Ors v. State of Punjab 2010 (2) SCR 22 = 2010 (3) SCC 56; State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 - relied on 6.

6 Section 27 of the Evidence Act is founded on the principle that even though the evidence relating to the confessional or ot~er 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. [Para 69] [161-C-F] State (NCT of Delhi) v. Navjof Sandhu @ Afsan Guru 2005 (2) Suppl. SCR 79 =2005 (11) SCC 600; Pu/ukuri Koffaya v. King Emperor AIR 1947 PC 67 - relied on 6. 7 In the instant case, it is only because of the · discovery made by the appellant that A-21 with the arms and ammunition was found at the address disclosed by the appellant. By the discovery made and recorded on the morning of 26. 12.

2000, the appellant had not only given the information about the whole plot, but in addition to that, he had also showen his readiness to point out the AK-56 rifle which was thrown behind the Red Fort immediately after the attack. In pursuance of that, H. 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. In this regard, the evidence of Inspector PW-228 (Ext. PW 218, S. I. PW-218, S. I. PW- 227, PW-125, PW 202 and SHO PW-234 is relevant, who all supported the discovery. This discovery was recorded by Ext PW-148/E. and was fully proved. [Para 69-70) [162- A-H] 6. 8 The disclosure statement of the appellant led to recovery of the hand grenades brought from Pakistan and one AK-56 assault rifle. The seizure memo Ext. PW- 168/B, the disclosure statement Ext. PW-168/D and the evidence of S. I. PW-218, S. I.

PW-227 and Inspector PW- 228 are relevant in this respect. There is nothing to disbelieve this discovery. The hand grenades were identified and their potency was proved by PW-202. Considering the peculiar nature of this case, the discovery of grenades at the instance of the appellant is accepted. Same thing can be stated about the earlier discovery dated 26. 12. 2000 of the AK-56 Assault Rifle, magazines, bandoleiries etc. Therefore, the formal arrest of the appellant and the recoveries effected thereafter or the seizure memos executed cannot be viewed with suspicion. [Para 47-48) [132-G-H; 134-E; 130-D] 6. 9 As regards the discovery of the hand grenades on 1. 1. 2001 at the instance of the appellant, the defence did not even attempt to say that there was anything unnatural with this recovery. T~us, 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 was very significant. So also the discovery of the shop of A-13, the Hawala dealer, as also the documents discovered therefrom, show the involvement of the DELHI appellant in the whole affair. In this. behalf, the findings of the High Court are fully endorsed. [para. 71] [164-D-G] 6. 1 O As regards the plea that no public witnesses were associated, in fact; there is ample evidence on record to suggest that though the investigating agency 8 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. Beside, 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. Again, the Court. cannot ignore the fact that the factum of discovery has been accepted by both the Courts below. [Para 48 and 71] [133-H; 134-A-H; 135-C-D; 164- D-G] Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl. SCR 483 =1995 Suppl (1) sec 80 - relied on 7. 1 In addition to these circumstances, there is another circumstance that a message dated 26. 12. 2000 was intercepted by the BSF while Ext. PW 162/A and proved by Inspector PW-162 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, and also deposited some amounts in the account of 'RYF' 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 PW-20. [Para 73] [169-G-H; 170-A-B] 7. 2 The detailed statement u/s. 313 CrPC which the accused gave at the end of the examination was a myth and remained totally unsubstantiated. The defence evidence of DW-1 has no legs ~o stand. DW-1 spoke about the marriage of her daughter 'RYF' to the appellant. Very strangely, she completely denied that she even knew that the appellant was a resident of Pakistan. Much importance, therefore, cannot be given to this defence witness. However, she admitted that moneys were paid into the account of 'RYF'. [Para 72) [165-A-D] 7. 3 This Court is in complete agreement with the findings regarding the incriminating circumstances as recorded by the High Court.

The High Court rightly came to the conclusion that the appellant was responsible for the incident of shooting inside the 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 A-21, who was killed in an encounter with the police at Batla House. The High Court held that the associates, with whom the appellant had entered into conspiracy, had attacked the Army Camp inside the Red Fort, 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. [Para 74] [170-C-H; 171-A-C] 8. 1 The law on the circumstantial evidence is, by now, settled.

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 MOHD. ARIF @ ASHFAQ v. STATE OF NC'T OF 75 DELHI . 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. [Para 75 and 76] [170-C-E; 173- D-E] Sharad Birdhichand Sarda Vs. State of Maharashtra 1985 (1 ) SCR 88 = 1984 (4) SCC 116; Tanviben Pankaj Kumar Divetia Vs. State of Gujarat 1997 (1) Suppl. SCR 96 = 1997 (7) SCC 156; State (NCT of Delhi) Vs. Navjot Sandhu@ Afsan Guru 2005 (2) Suppl.

SCR 79 = 2005 (11) SCC 600; Vikram Singh & Ors. Vs. State of Punjab 2010 (2) SCR 22 =2010 (3) SCC 56, Aftab Ahmad Anasari Vs. State of Uttaranchal 2010 (1) SCR 1027 = 2010 (2) SCC 583 relied on 8. 2 In the instant case, the prosecution was successful in establishing the 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 quantitative test made applicable. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Clear and irrefutable logic would be an essential factor in · arriving at the verdict of guilt on the basis of the proved circumstances. The instant case is such, as would pass au the tests so far devised by this Court in the realm of criminal jurisprudence.

[Para 76] [173-G-H; 174-A-C] 9. 1 It cannot be said that the appellant has suffered a prejudice on account of his being a Pakistani national. The investigation in the instant case was both scientific and fair 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. Compliments must be paid to the Investigating Officer 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. [Para 77] [174-D-H; 175-A-B] 9. 2 Similar is the role played by the trial court and the High Court. 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 appellant. Similarly, the High Court was also very fair in giving all the possible latitude, in giving patient hearing to the accused-appellant. The records of the trial and the appellate courts truly justify these inferences. [Para 77) [175-B-C] 10.

1 So far as the plea that there could be no conviction for the conspiracy in the absence of conviction of any other accused for that purpose is concerned, there were 22 original accused persons, some of whom were acquitted and 8 accused persons, namely, A-12, A-13, A-14, A-15, A-16, A-17, A-18·and A-19, against whom the investigating agency had collected ample material and had filed chargesheet are absconding. Besides these a·bsconding accused persons, 3 others, namely, A-20, A-21 and A-22 had died. The charge of DELHI conspiracy was against all the accused persons. The conspiracy also included the dead accused A-21 who was found to be hiding and who was later killed in exchange of fire with the police. The whereabouts of A- 21 were known only due to the discovery statement by the appellant, in which a very clear role was attributed to A-21, who was also a part of the team having entered the Red Fort and having taken part in the firing and killing of three soldiers.

It has also come in the evidence that the other accused who was absconding, namely, 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 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. Thus, the case of the prosecution that there was a conspiracy 0 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. [para 78] [175-D-H; 176-A-D] Bimbadhar Pradhan Vs. The State of Orissa 1956 SCR 206 =AIR 1956 SC 469; Yashpal Milla/ Vs. State of Punjab 1978 ( 1 ) SCR 781=1977 (4) SCC 540; Ajay Agarwal Vs. Union of India & Ors. 1993 (3) SCR 543 = 1993 (3) SCC 609; Nazir Khan & Ors. Vs. State of Delhi 2003 (2) Suppl. SCR 884 = 2003 (8) sec 461 - relied on State of Himachal Pradesh Vs.

Krishna Lal Pradhan 1987 (2) SCC 17; State through Superintendent of Police, CBI/SIT Vs. Nalini & Ors. 1999 (3) SCR 1 = 1999 (5) sec 253; Firozuddin Basheeruddin & Ors. Vs. State of Kera/a 2001 (7) SCC 596; State (NCT of Deihl) Vs. Navjot Sandhu 2005 (2) Suppl. SCR 79 = 2005 (11) SCC 600 - referred to 10. 2 There was no argument addressed before this Court to the effect that there was no conspiracy. The only argument advanced was that the appellant alone could not have been convicted for the conspiracy, since all the other accused were acquitted. 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, but there was a definite plan and a conspiracy.

It was undoubtedly an extremely well· planned attempt to overawe and to wage war against the Government of India. [Para 81] [187-E-H; 188-A-C] Kehar Singh Vs. State (Delhi Admn. ) 1988 (2) Suppl. SCR 24 =AIR 1988 SC 1883 - relied on 10. 3 The offence 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 u/s. 121 and 121-A, IPC. The appellant is also rightly held guilty for the offence punishable rr/s. 120-B r/w s. 302, IPC. This Court agrees with the verdict of the trial court as well as the High Court. [Para 81] [188-D-G] 11. 1 As regards the sentence, the High court 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 the appellant did not highlight any mitigating circumstance justifying the conversion of death sentence to life imprisonment. [Para 82] [189-B-D] 11.

2 This was a unique case where Red Fort, a place of paramount importance for every Indian heart was attacked where thr~e 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. An attack on a symbol that is so deeply entrenched in the national psyche was, therefore, DELHI nothing but an attack on the very essence of the hard earned freedom and liberty so very dear to the people of this country. It was a blatant, brazenfaced and audacious act aimed to over awe the Government of India. This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self respect of this great nation.. Therefore, this case becomes a rarest of rare case. This was nothing but an undeclared war by some foreign mercenaries like the appellant and his other partners, in conspiracy 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, this case becomes a rarest of rare case. (Para 83] (189-F-H; 191-B-H; 192-A-B] State v. Navjot Singh Sandhu 2005 (2) Suppl. SCR 79 = 2005 (11) SCC 600; State of Tamil Nadu v. Nalini 1999 (3) SCR 1 =AIR 1999 SC 2640; Machhi Singh v. State of Punjab 1983 (3) SCR 413 = 1983 (3) SCC 470 - relied on 11. 3 In Machhi Singh's case, 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, the same can be awarded. The other test includes the crime of enormous proportion.

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 in the instant case, this Court is of the opinion that this is a case wh'ere the conscience of the community would get shocked and it would definitely expect the death penalty for the appellant. Besides, three soldiers who had nothing to do with the conspirators were killed. 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 which would justify the death sentence. The defence did not attempt to bring any mitigating circumstance. Therefore, this Court has no doubts that death sentence was the only sentence in the peculiar circumstance of the case. The judgment of the trial court and the High Court convicting the accused and awarding him death sentence are confirmed.

All the other sentences are also confirmed. [Para 84] [195-B-E; 194-F- H; 195-A-D] Bachan Singh v. State of Punjab AIR 1980 SC 898 relied on Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238 o - referred to Case Law Reference: 1994 (1) Suppl. SCR 483 Relied on Para 48 2010 (2) SCR 22 Relied on Para 69 2005 (2) Suppl. SCR 79 Relied on Para 69 2005 (11) sec 600 relied on Para 69 AIR 1947 PC 67 relied on Para 69 1985 (1) SCR 88 relied on para 75 1997 (1) Suppl. SCR 96 relied on para 75 2005 (2) Suppl. SCR 79 relied on para 75 2010 (2) SCR 22 relied on para 75 2010 (1) SCR 1027 relied on para 75 1956 SCR 206 relied on para 78 DELHI 1978 (1) SCR 781 relied on para 78 1993 (3) SCR 543 relied on para 78 2003 (2) Suppl. SCR 884 relied on para 78 1987 (2) sec 11 referred to para 78 1999 (3) SCR 1 referred to para 78 2001 (7) sec 596 referred to para 78 2005 (2) Suppl. SCR 79 referred to para 79 1988 (2) Suppl. SCR 24 relied on para 81 2005 (2) Suppl.

SCR 79 relied on para 83 1999 (3) SCR 1 relied on para 84 1983 (3) SCR 413 relied on para 84 AIR 1980 SC 898 relied on para 84 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 98-99 of 2009. From the Judgment & Order dated 13. 09. 2007 of the High Court of Delhi at New Delhi in Death Sentence Reference No. 2 of 2005, Criminal Appeal No. 927 of 2005. Kamini Jaiswal, Abhimanue Shreshtha, Divyesh Pratap Singh for the Appellant. Gopal Subramanium, SG, Mukul Gupta, Satyakam, Anubhav Kumar, Sadhna Sandhu, Som Prakash, Anchit Sharma, Rajat Katyal, Sanjeev Joshi, Divya Chaturvedi, D. S. Mahra, Anil Katiyar for the Respondent. The Judgment of the Court was delivered by 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 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 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 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 FO-rt--T! t_e police found a ----.. : polythene bag containing some currency notes--of~c:tifferent . -- 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 s 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 0 made from same mobile number to telephone number 0113355751 which number was found to be that of BBC correspondent in Delhi, Ayanjit Singh (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 I telephone installed at flat No. 308A, DOA 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 saiq computer centre was being run by one Mohd. Arif@ Ashfaq (appellant herein) who was residing at the flat mentioned as flat No. 308A, DOA Flats, Ghazipur where landline No. 2720223 was installed. The police, therefore, could connect the said flat No.

308A at Ghazipur and 8 the computer Centre i. e. Knowledge Plus at Okhala and could also connect Mohd. Arif @ Ashfaq with these two 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 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 8 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), 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 payin slip of Standard Chartered bank (Exhibit PW-173/K) showing deposit of Rs. 5 lakhs in the account of Mis. 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 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 I PW"'125/2-3) having live cartridgeS! ,. Qne 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 lslamia 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 Organization had also decided to overawe India by their terrorist activities in different parts of India and to fulfill that object, the accusedappellant 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 0 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 coconspirator 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 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 accusedappellant 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 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 8-17, 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 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 accusedappellant 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 accusedappellant, 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. 0t. 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 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 ear1ier 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 lslamia 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 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 120-8 IPC read with Section 302, IPC.

The accused-appellant was individually charged for the offence punishable under Section 120-8, 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 accusedappellant was 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 120-8, IPC read with Section 302, IPC, Sections 468/471/474, IPC and also under Section 420 read with Section 120-8, IPC. The accusedappellant 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 120-8, IPC. He was awarded rigorous imprisonment for 10 years for his 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. 0 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 coaccused 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 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, C0'1firmed 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 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 ac1... ompany 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 Nas 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. 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. SubedarD. 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. lnspite of the fact that 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 8 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 that the said Sentry Abdullah Thakur or the second casualty Rifleman (Barber) Jma 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 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 simil