(i) Legal Assistance :
The first point raised by Mr. Sushil Kumar, appearing for the accused Afzal, was that he was denied proper legal aid, thereby depriving him of effective defence in the course of trial. In sum and substance, the contention is that the counsel appointed by the Court as 'amicus curiae' to take care of his defence was thrust on him against his will and the first amicus appointed made concessions with regard to the admission of certain documents and framing of charges without his knowledge. It is further submitted that the counsel who conducted the trial did not diligently cross-examine the witnesses. It is, therefore, contended that his valuable right of legal aid flowing from Articles 21 and 22 is violated. We find no substance in this contention. The learned trial Judge did his best to afford effective legal aid to the accused Afzal when he declined to engage a counsel on his own. We are unable to hold that the learned counsel who defended the accused at the trial was either inexperienced or ineffective or otherwise handled the case in a casual manner. The criticism against the counsel seems to be an after thought raised at the appellate stage. It was rightly negatived by the High Court.
Coming to the specific details, in the first instance, when Afzal along with other accused was produced before the special Judge, he was offered the assistance of a counsel. One Mr. Attar Alam was appointed. However, the said advocate was not willing to act as amicus. On 14.5.2002, the charge sheet was filed in the Court. On 17.5.2002, the trial Judge appointed Ms. Seema Gulati who agreed to defend Afzal. She filed Vakalatnama along with her junior Mr. Neeraj Bansal on the same day on behalf of the accused Afzal. On 3.6.2002, the arguments on charges were heard. Afzal was represented by Ms. Seema Gulati. The counsel conceded that there was prima facie material to frame charges. The Court framed charges against all the accused on 4.6.2002 and the accused pleaded not guilty. True, the appellant was without counsel till 17.5.2002 but the fact remains that till then, no proceedings except extending the remand and furnishing of documents took place in the Court. The next date which deserves mention is 5.6.2002. On that date, all the counsel appearing for the accused agreed that postmortem reports, MLCs, documents related to recovery of guns and explosive substances at the spot should be considered as undisputed evidence without formal proof which resulted in dropping of considerable number of witnesses for the prosecution. The learned senior counsel for the appellant by referring to the application filed by Ms. Seema Gulati on 1.7.2002 seeking her discharge from the case, highlights the fact that she took no instructions from Afzal or discussed the case with him and therefore no concession should have been made by her. The contention has no force. Assuming that the counsel's statement that she took no instructions from the accused is correct, even then there is nothing wrong in the conduct of the advocate in agreeing for admission of formal documents without formal proof or in agreeing for the framing of charges. The counsel had exercised her discretion reasonably. The appellant accused did not object to this course adopted by the amicus throughout the trial. No doubt, some of the documents admitted contained particulars of identification of the deceased terrorists by the appellant Afzal, but, the factum of identification was independently proved by the prosecution witnesses and opportunity of cross- examination was available to the accused. In the circumstances, we cannot say that there was a reasonable possibility of prejudice on account of admission of the said documents without formal proof.
Coming to the next phase of development, on 1.7.2002, Ms. Seema Gulati filed an application praying for her discharge from the case citing a curious reason that she had been engaged by another accused Gilani to appear on his behalf. An order was passed on 2.7.2002 releasing her from the case. Mr. Neeraj Bansal who filed Vakalat along with Ms. Seema Gulati was then nominated as amicus to defend Afzal and the brief was handed over to him. NO objection was raised by Afzal on that occasion. Inspection of record by the counsel was allowed on 3.7.2002 and on subsequent occasions. On 8.7.2002, the accused Afzal filed a petition stating therein that he was not satisfied with the counsel appointed by the Court and that he needed the services of a senior advocate. He named four advocates in the petition and requested the Court to appoint one of them. On 12th July, the trial Judge recorded that the counsel named by the accused were not willing to take up the case. Mr. Neeraj Bansal was therefore continued especially in view of the fact that he had experience of dealing with TADA cases. Afzal was also given the opportunity to cross- examine the prosecution witnesses in addition to the amicus. In fact, he did avail of that opportunity now and then. On several occasions, there was common cross-examination on behalf of all the accused. No indicia of apparent prejudice, is discernible from the manner in which the case was defended. Though the objection that he was not satisfied with his counsel was reiterated on 12.7.02 after PW15 was cross examined, we do not think that the Court should dislodge the counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far. It is not demonstrated before us as to how the case was mishandled by the advocate appointed as amicus except pointing out stray instances pertaining to cross- examination of one or two witnesses. The very decision relied upon by the learned counsel for the appellant, namely, Strickland Vs. Washington [466 US 668] makes it clear that judicial scrutiny of a counsel's performance must be careful, deferential and circumspect as the ground of ineffective assistance could be easily raised after an adverse verdict at the trial. It was observed therein:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defence after it has proved unsuccessful, to conclude that a particular act of omission of counsel was unreasonable. Cf. Engle Vs. Isaac [456 US 107, 133-134] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; "
The learned senior counsel for the State Mr. Gopal Subramnium has furnished a table indicating the cross examination of material prosecution witnesses by the counsel Mr. Neeraj Bansal as Annexure 16 to the written submissions. Taking an overall view of the assistance given by the Court and the performance of the counsel, it cannot be said that the accused was denied the facility of effective defence.
(ii) Evidence against Mohd. Afzal
Now let us analyze the evidence against Afzal that is sought to be relied upon by the prosecution. It consists of confessional statement recorded by the DCP, Special Cell PW60 and the circumstantial evidence.
First, we shall advert to the confession. It is in the evidence of PW80 Rajbir Singh (ACP), Special Cell that he took over investigation on 19.12.2001 on which date the offences under POTA were added. Then, he further interrogated the accused Afzal on 20.12.2001 and recorded his supplementary disclosure statement Ext. PW64/3. According to him, the three accused Afzal, Shaukat and Gilani, expressed their desire to make confessional statements before the Deputy Commissioner of Police. Accordingly, he apprised the DCP, Special Cell (PW60) of this fact. PW60 directed him to produce the accused persons at Gazetted Officers' Mess, Alipur Road, Delhi on the next day. First, PW80 produced Gilani before PW60 at 11.30 a.m. but he declined to give the confessional statement. Then he produced Mohd. Afzal before the DCP, Special Cell in the evening. The recording of the confession by PW60 DCP started at 7.10 pm on 21.12.2001 and ended at 10.45 pm. It is recorded in the preamble of the confession that he had asked ACP Rajbir Singh to leave the room and after that he warned and explained to the accused that he was not bound to make the confessional statement and that if he did so, it can be used against him as evidence. Thereupon, it was recorded that Afzal was not under any duress and he was ready to give the confessional statement. The signature of Afzal is found beneath that endorsement. There is a recital to the effect that PW60 was satisfied that the accused was not under duress or pressure. PW60 also deposed that the accused were 'comfortable' in English language and he kept on writing as they narrated their versions. He (PW60) denied the suggestion that Afzal was not produced before him and he did not express his willingness to make confession. The DCP(PW60) handed over a sealed envelope containing the confessional statements to PW80 the I.O. who produced the accused Afzal and two others before the Addl. Chief Metropolitan Magistrate (ACMM), Delhi on 22.12.2001 together with an application Ext. PW63/1. The ACMM was examined as PW63. The ACMM stated that he opened the sealed envelope containing Exts.PW60/9 & PW60/6 which are the confessional statements of Afzal and Shaukat, and Ext.PW60/3 which is the statement of Gilani and perused them. The ACMM then recorded the statements of the accused persons. The two accused Afzal and Shaukat confirmed having made the confessional statement without any threat or pressure. The proceedings drawn by him is Ext.PW63/2. The accused signed the statements confirming the confession made to the DCP. The statement of Mohd. Afzal and his signature are marked as Exts.PW63/5 & 63/6. PW63 stated that he made enquiries from the accused persons and none of them made any complaint of use of force or threat at the time of recording confession. He also deposed that he gave a warning that they were not bound to make the statement before him. A suggestion that Mohd. Afzal did not appear before him nor did he make the statement, was denied. The ACMM, after drawing up the proceedings, sent the accused Afzal to police custody for a week at the instance of I.O. --PW80 for the reason that he was required to be taken to certain places in Kashmir for further investigation.
We shall now give the gist of the confessional statement of Mohd. Afzal which is Ext.PW60/9 read with Ext.PW60/7. First, he mentions about joining JKLF, a militant outfit during the year 1989-90, receiving training in Pak Occupied Kashmir in insurgent activities and coming back to India with arms, his arrival in Delhi with his cousin Shaukat for studies, coming into contact with SAR Gilani --A3 while studying in Delhi University, surrendering before BSF in 1993 on the advice of his family members, returning back to his native place Sopore and doing commission agency business, coming into contact with one Tariq of Anantanag at that time, who motivated him to join 'Jihad' for liberation of Kashmir and assured him of financial assistance, Tariq introducing him to one Ghazibaba (proclaimed offender) in Kashmir who further exhorted him to join the movement and apprised him of the mission to carry out attacks on important institutions in India like Parliament and Embassies and asked him to find a safe hideout for the 'Fidayeens' in Delhi.
During that meeting, he was introduced to Mohammed and Haider, Pak nationals and militants. In the month of October, 2001, he rang up to Shaukat and asked him to rent out accommodation for himself and Mohammed. In the first week of November, he and Mohammed came to Delhi. Mohammed brought with him a laptop and Rs.50,000. Shaukat took them to the pre- arranged accommodation in Christian Colony Boys' Hostel. He revealed to Shaukat that Mohammed was a Pak militant of Jaish-E-Mohammed and came to Delhi to carry out a Fidayen attack. After a week, he arranged another safe hideout at A-97, Gandhi Vihar. Mohammed collected money through 'hawala' and gave Rs.5 lakhs to be handed over to Tariq in Srinagar. Accordingly, he went to Srinagar and gave the money to Tariq. At the instance of Tariq, he brought two other militants Raja and Hyder to Delhi and both were accommodated at the hideout in Gandhi Vihar. In order to complete the task assigned by Ghazibaba, he along with Mohammed went to the shops in old Delhi area and purchased 60 KGs of Ammonium Nitrate, 10 KGs of Aluminum powder, 5 KGs of Sulpher and other items in order to facilitate preparation of explosives by Mohammed. After a week or so, Mohammed gave another 5 lakhs of rupees to be handed over to Tariq. Tariq asked him to take along with him two other militants, Rana and Hamza. They were carrying two holdalls which contained rifles with loaded magazines, grenade launcher, pistols, hand grenades and shells, electric detonators and other explosives. They also stayed in Gandhi Nagar hideout initially. After reaching Delhi, he arranged for another accommodation at 281, Indira Vihar. Mohammed purchased mobile phones and SIM cards from the markets and received directions from Ghazibaba from a satellite phone. He used to meet Shaukat and Gilani and motivate them for Jihad. Shaukat provided his motorcycle for conducting 'recce'. Meetings were also arranged in the house of Shaukat for deciding future course of action. In those meetings, Gilani and Shaukat's wife Afsan also used to be present. At the meetings, various targets such as Delhi Assembly, Parliament, UK & US Embassy and Airport were discussed. Then, after conducting survey of all the targets, Mohammed informed Ghazibaba that they should strike at the Indian Parliament. A final meeting was held in the house of Shaukat in which all were present and plans for attack on Parliament House were finalized. As per the plan, he along with Mohammed went to Karolbagh and bought a second hand Ambassador car on 11th December. They also purchased a magnetic VIP red light. Mohammed got prepared a sticker of MHA and identity cards through his laptop. Mohammed and other militants prepared IEDs with the use of chemicals. This IED was fitted in the car for causing explosion.
On the night of 12.12.2001, he along with Shaukat and Gilani went to the hideout in Gandhi Vihar, where all the five Pak militants were present. Mohammed gave him the laptop and Rs.10 lakhs. He asked him to reach the laptop to Ghazibaba and also told him that Rs.10 lakhs was meant for him and his friends Shaukat and Gilani. Mohammed told him that they were going to conduct a Fidayeen attack on Parliament House on 13.12.2001. They were in touch with each other on mobile phones. On 13.12.2001, he received a call on his mobile No. 98114-89429 from Mohammed's phone No. 98106-93456. He was asked to watch the TV and inform him about the presence of various VVIPs in Parliament House. As there was no electricity, he could not watch TV and therefore he contacted Shaukat and asked him to watch TV and convey the information. Then Mohammed called him (Afzal) and told him that he was going ahead with the attack on the Parliament. He then called Shaukat and told him that the mission had started. Shaukat then came and met him at Azadpur mandi and both went to Gilani's house and gave him Rs.2 lakhs. Gilani in turn asked him to give the money at his house in Kashmir. Then he and Shaukat left for Srinagar in Shaukat's truck. They were apprehended by the Srinagar police on 15th. The police recovered from them laptop with the accessories and Rs.10 lakhs. They were then brought to Delhi and at Delhi he got recovered explosives and other materials from the hideouts.
The crucial question that remains to be considered is whether the confessional statement of Mohd. Afzal recorded by the DCP (PW 80) could be safely acted upon. Certain common contentions applicable to the confessions of both Afzal and Shaukat were raised in an attempt to demonstrate that the confession would not have been true and voluntary. Firstly, it is pointed out that the alleged confession was substantially the same as the alleged disclosure statements (Exts. 64/1 & 64/2) which were recorded on the 16th December itself. Even their signatures were obtained on these disclosure statements. If so, when the accused were inclined to make a full-fledged confession on the 16th December and most of the investigation relating to hideouts and shops and the recovery of incriminating materials was over by the next day, there was no perceptible reason why the accused should not have been produced before a Judicial Magistrate for recording a confession under the provisions of Cr.P.C.
The only reason, according to learned counsel for the appellants, is that they were really not prepared to make the confession in a Court and, therefore, the investigating authorities found the ingenuity of adding POTA offences at that stage so as to get the confession recorded by a Police officer according to the wishes of the investigators. It is also submitted that it is highly incredible that Afzal, who is a surrendered militant, and who is alleged to have maintained close contact with hard-core terrorists, could have, immediately after the arrest by police, developed a feeling of repentance and come forward voluntarily to make a confession implicating himself and others including a lady who had nothing to do with the terrorists. Another comment made is that the alleged meetings at Shaukat's place to discuss and finalize the plans to attack Parliament with persons whose advice or association had nothing or little to do with the execution of conspiracy is a highly improbable event. The terrorists who came to Delhi on a Fidyaeen mission with a set purpose could not have thought of going about here and there to evolve the strategies and plans with persons like Gilani and Navjot (Shaukat's wife), risking unnecessary publicity. It was not a natural, probable or reasonable conduct. It is also contended that the language and tenor of the confessional statement gives enough indication that it was not written to the dictation of appellants, but it was a tailor made statement of which they had no knowledge.
Though these arguments are plausible and persuasive, it is not necessary to rest our conclusion on these probabilities.
We may also refer to the contention advanced by Shri Ram Jethmalani, learned senior counsel appearing for SAR Gilani with reference to the confession of Afzal. Shri Jethmalani contended that Afzal in the course of his interview with the TV and other media representatives, a day prior to recording of a confession before the DCP, while confessing to the crime, absolved Gilani of his complicity in the conspiracy. A cassette (Ext.DW4/A) was produced as the evidence of his talk. DW-4, a reporter of Aaj Tak TV channel was examined. It shows that Afzal was pressurized to implicate Gilani in the confessional statement, according to the learned counsel. It is further contended by Shri Jethmalani that the statement of Afzal in the course of media interview is relevant and admissible under Section 11 of the Evidence Act. Learned counsel for Afzal, Shri Sushil Kumar did not sail with Shri Jethmalani on this point, realizing the implications of admission of the statements of Afzal before the TV and press on his culpability. However, at one stage he did argue that the implication of Gilani in the confessional statement conflicts with the statement made by him to the media and therefore the confession is not true. We are of the view that the talk which Afzal had with TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a Police Officer within the meaning of Section 162 Cr.P.C. or not. We are not prepared to attach any weight or credibility to the statements made in the course of such interview pre-arranged by the police. The police officials in their over- zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. Incidentally, we may mention that PW60 the DCP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not endure to the benefit or detriment of either the prosecution or the accused.
(iv) Procedural Safeguards & Compliance:
Now we look to the confession from other angles, especially from the point of view of in-built procedural safeguards in Section 32 and the other safeguards contained in Section 52. It is contended by the learned senior counsel Mr. Gopal Subramanium that the DCP before recording the confession, gave the statutory warning and then recorded the confession at a place away from the police station, gave a few minutes time for reflection and only on being satisfied that the accused Afzal volunteered to make confession in an atmosphere free from threat or inducement that he proceeded to record the confession to the dictation of Afzal. Therefore, it is submitted that there was perfect compliance with sub-Sections (2)&(3). The next important step required by sub-Section (4) was also complied with inasmuch as Afzal was produced before the Additional Chief Metropolitan Magistrate PW63 on the very next day i.e. 22.12.2001 along with the confessional statements kept in a sealed cover. The learned Magistrate opened the cover, perused the confessional statements, called the maker of confession into his chamber, on being identified by PW80 ACP and made it known to the maker that he was not legally bound to make the confession and on getting a positive response from him that he voluntarily made the confession without any threat or violence, the ACMM recorded the statement to that effect and drew up necessary proceedings vide Exts.PW63/5 and PW63/6. It is pointed out that the accused, having had the opportunity to protest or complain against the behaviour of police in extracting the confession, did not say a single word denying the factum of making the confession or any other relevant circumstances impinging on the correctness of the confession. It is further pointed out that Afzal and the other accused were also got medically examined by the police and the Doctor found no traces of physical violence. It is therefore submitted that the steps required to be taken under sub-Sections (4)&(5) were taken. However, the learned counsel for the State could not dispute the fact that the accused Afzal was not sent to judicial custody thereafter, but, on the request of the I.O. PW80, the ACMM sent back Afzal to police custody. Such remand was ordered by the ACMM pursuant to an application made by PW80 that the presence of Afzal in police custody was required for the purpose of further investigation. Thus, the last and latter part of sub-Section (5) of Section 32 was undoubtedly breached. To get over this difficulty, the learned counsel for the State made two alternative submissions, both of which, in our view, cannot be sustained.
Firstly, it was contended that on a proper construction of the entirety of sub-Section (5) of Section 32, the question of sending to judicial custody would arise only if there was any complaint of torture and the medical examination prima facie supporting such allegation. In other words, according to the learned counsel, the expression 'thereafter' shall be read only in conjunction with the latter part of sub-Section (5) beginning with 'and if there is any complaint' and not applicable to the earlier part. In our view, such a restrictive interpretation of sub-Section (5) is not at all warranted either on a plain or literal reading or by any other canon of construction including purposive construction. The other argument raised by the learned counsel is that the provision regarding judicial custody, cannot be read to be a mandatory requirement so as to apply to all situations. If the Magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjected to any torture or intimidation, he need not direct judicial custody. Having regard to the circumstances of this case, there was nothing wrong in sending back Afzal to police custody. This contention cannot be sustained on deeper scrutiny.
The clear words of the provision do not admit of an interpretation that the judicial custody should be ordered by the Chief Judicial Magistrate only when there is a complaint from the 'confession maker' and there appears to be unfair treatment of such person in custody. As already stated, the obligation to send the person whose alleged confession was recorded to judicial custody is a rule and the deviation could at best be in exceptional circumstances. In the present case, it does not appear that the ACMM (PW63) had in mind the requirement of Section 32(5) as to judicial custody. At any rate, the order passed by him on 22.12.2001 on the application filed by PW80 does not reflect his awareness of such requirement or application of mind to the propriety of police remand in the face of Section 32(5) of POTA. Compelling circumstances to bypass the requirement of judicial custody are not apparent from the record. The more important violation of the procedural safeguards lies in the breach of sub-Section (2) read with sub-Section (4) of Section 52. It is an undisputed fact that the appellants were not apprised of the right to consult a legal practitioner either at the time they were initially arrested or after the POTA was brought into picture. We may recall that the POTA offences were added on 19th December and as a consequence thereof, investigation was taken up by PW80-- an Asst. Commissioner of Police, who is competent to investigate the POTA offences. But, he failed to inform the persons under arrest of their right to consult a legal practitioner, nor did he afford any facility to them to contact the legal practitioner.
The opportunity of meeting a legal practitioner during the course of interrogation within closed doors of police station will not arise unless a person in custody is informed of his right and a reasonable facility of establishing contact with a lawyer is offered to him. If the person in custody is not in a position to get the services of a legal practitioner by himself, such person is very well entitled to seek free legal aid either by applying to the Court through the police or the concerned Legal Services Authority, which is a statutory body. Not that the police should, in such an event, postpone investigation indefinitely till his request is processed, but what is expected of the police officer is to promptly take note of such request and initiate immediate steps to place it before the Magistrate or Legal Services Authority so that at least at some stage of interrogation, the person in custody would be able to establish contact with a legal practitioner. But, in the instant case, the idea of apprising the persons arrested of their rights under sub- Section (2) and entertaining a lawyer into the precincts of the police station did not at all figure in the mind of the investigating officer. The reason for this refrain or crucial omission could well be perceived by the argument of the learned senior counsel for the State that the compliance with the requirements of Section 52(2) of POTA did not arise for the simple reason that at the time of arrest, POTA was not applied. But this argument ignores the fact that as soon as POTA was added and the investigation commenced thereunder, the police officer was under a legal obligation to go through all the procedural safeguards to the extent they could be observed or implemented at that stage. The non- invocation of POTA in the first instance cannot become a lever to deny the safeguards envisaged by Section 52 when such safeguards could still be extended to the arrested person. The expression 'the person arrested' does not exclude person initially arrested for offences other than POTA and continued under arrest when POTA was invoked. The 'person arrested' includes the person whose arrest continues for the investigation of offences under POTA as well. It is not possible to give a truncated interpretation to the expression 'person arrested' especially when such interpretation has the effect of denying an arrested person the wholesome safeguards laid down in Section 52. The importance of the provision to afford the assistance of counsel even at the stage of custodial interrogation need not be gainsaid. The requirement is in keeping with the Miranda ruling and the philosophy underlying Articles 21, 20(3) & 22(1). This right cannot be allowed to be circumvented by subtle ingenuities or innovative police strategies. The access to a lawyer at the stage of interrogation serves as a sort of counterweight to the intimidating atmosphere that surrounds the detenu and gives him certain amount of guidance as to his rights and the obligations of the police. The lawyer's presence could pave the way, to some extent, to ease himself of the mental tension and trauma. In the felicitous words of Finlay, CJ of Ireland in The People Vs. Healy [(1990) 2 IR 73]:
"The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such a person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators."
The Parliament advisedly introduced a Miranda ordained safeguard which was substantially reiterated in Nandini Satpathy by expressly enacting in sub-Sections (2)&(4) of Section 52 the obligation to inform the arrestee of his right to consult a lawyer and to permit him to meet the lawyer. The avowed object of such prescription was to introduce an element of fair and humane approach to the prisoner in an otherwise stringent law with drastic consequences to the accused. These provisions are not to be treated as empty formalities. It cannot be said that the violation of these obligations under sub- Sections (2) & (4) have no relation and impact on the confession. It is too much to expect that a person in custody in connection with POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise. The lawyer's presence and advice, apart from providing psychological support to the arrestee, would help him understand the implications of making a confessional statement before the Police Officer and also enable him to become aware of other rights such as the right to remain in judicial custody after being produced before the Magistrate. The very fact that he will not be under the fetters of police custody after he is produced before the CJM pursuant to Section 32(4) would make him feel free to represent to the CJM about the police conduct or the treatment meted out to him. The haunting fear of again landing himself into police custody soon after appearance before the CJM, would be an inhibiting factor against speaking anything adverse to the police. That is the reason why the judicial custody provision has been introduced in sub-Section (5) of Section 32. The same objective seems to be at the back of sub-Section (3) of Section 164 of Cr.P.C., though the situation contemplated therein is somewhat different.
The breach of the obligation of another provision, namely, sub-Section (3) of Section 52 which is modelled on D.K.Basu's guidelines has compounded to the difficulty in acting on the confession, Section 52(3) enjoins that the information of arrest shall be immediately communicated by the Police Officer to a family member or in his absence, to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the Police Officer under the signature of the person arrested. PW80-- the I.O. under POTA merely stated that "near relatives of the accused were informed about their arrest as I learnt from the record". He was not aware whether any record was prepared by the Police Officer arresting the accused as regards the information given to the relatives. It is the prosecution case that Afzal's relative by name Mohd. Ghulam Bohra of Baramulla was informed through phone. No witness had spoken to this effect. A perusal of the arrest memo indicates that the name of Ghulam Bohra and his phone number are noted as against the column 'relatives to be informed'. Afzal's arrest memo seems to have been attested by Gilani's brother who according to the prosecution, was present at the police cell. But, that does not amount to compliance with sub- Section (3) because he is neither family member nor relation, nor even known to be a close friend. We are pointing out this lapse for the reason that if the relations had been informed, there was every possibility of those persons arranging a meeting with the lawyer or otherwise seeking legal advice.
Another point which has a bearing on the voluntariness of confession is the fact that sufficient time was not given for reflection after the accused (Afzal/Shaukat) were produced before PW60 recording the confession. He stated in the evidence that he gave only 5 to 10 minutes time to the accused for thinking/reflection in reply to the question by the counsel for Shaukat Hussain. It is true as contended by the learned counsel Mr. Gopal Subramanium that there is no hard and fast rule regarding grant of time for reflection and the rules and guidelines applicable to a confession under Section 164 Cr.P.C. do not govern but in the present case, the time of 5 or 10 minutes is, by all standards, utterly inadequate. Granting reasonable time for reflection before recording a confession is one way of ensuring that the person concerned gets the opportunity to deliberate and introspect once again when he is brought before the prescribed authority for recording the confession. That it is one of the relevant considerations in assessing the voluntariness of the confession is laid down in Sarwan Singh Vs. State of Punjab [1957 SCR 953].
All these lapses and violations of procedural safeguards guaranteed in the statute itself impel us to hold that it is not safe to act on the alleged confessional statement of Afzal and place reliance on this item of evidence on which the prosecution places heavy reliance.
The learned senior counsel for the State has laid considerable stress on the fact that the appellants did not lodge any protest or complaint; on the other hand, they reaffirmed the factum of making confession when they were produced before the ACMM on the next day. It is further pointed out that as far as Afzal is concerned, it took nearly seven months for him to refute and retract the confession. After giving anxious consideration, we are unable to uphold this contention. The omission to challenge the confessional statement at the earliest before the Magistrate shall be viewed in the light of violation of procedural safeguards which we have discussed in detail earlier.
As regards the delay in retracting, the first fact to be taken note of is that the appellant Afzal was evidently not aware of the contents of the confessional statement on the day on which he was produced before the ACMM because the learned Magistrate did not make it available to him for perusal nor the gist of which was made known to him. We find nothing in the proceedings of the ACMM to that effect. It was only after the charge sheet was filed in the Court on 14th May and a copy thereof was served to him that he became aware of the details of the confessional statement. Then Afzal filed a petition before the trial Court on 2.7.2002 stating that "I have given a statement in front of police during custody and not before the DCP or ACP as mentioned in the charge sheet. I found that my statement has been grossly manipulated and twisted in a different form and formation by the police, especially my statements regarding Afsan Guru and SAR Gilani. Therefore, I am requesting to your honour to record my statement in the Court." This was followed by another petition filed on 15th July, the main purpose of which was to highlight that Mr. Gilani and the other accused had no direct or indirect connection. Thus, we cannot hold that there was abnormal delay in disowning the confession, the effect of which would be to impart credibility to the confessional statement.
It is then pointed out that the grounds on which the confessional statement was refuted by Afzal, are not consistent. Whereas Afzal stated in the petition dated 2.7.2002 as above, in the course of his examination under Section 313, Afzal stated that he signed on blank papers. We do not think that this so-called discrepancy will give rise to an inference that the confessional statement was true and voluntary. We have to look to the substance of what the accused said while refuting the statement rather than building up a case on the basis of some inconsistencies in the defence plea.
(v) Circumstances against Afzal
We shall now consider the circumstantial evidence against Afzal independent of and irrespective of the confession. The first circumstance is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. PW76 (Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady Harding Medical College and he identified the five terrorists and gave their names. Accordingly, PW76 prepared an identification memo Ext.PW76/1 which was signed by Afzal. In the postmortem reports pertaining to each of the deceased terrorists, Afzal signed against the column 'identified by'. On this aspect, the evidence of PW76 remained un-shattered. In the course of his examination under Section 313, Afzal merely stated that he was forced to identify by the police. There was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo. It may be recalled that all the accused, through their counsel, agreed for admission of the postmortem reports without formal proof. Identification by a person in custody of another does not amount to making a statement falling within the embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of Evidence Act as a piece of evidence relating to conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the EvidenceAct (vide Himachal Pradesh Administration Vs. Om Prakash [AIR 1972 SC 975]).
The second circumstance is the frequent telephonic contacts which Afzal had established with Mohammed. Even minutes before the attack, as many as three calls were made by Mohammed to Afzal from his phone No. 9810693456 which was operated with the instrument having IMEI No. 35066834011740(2) that was recovered from Mohammed's body, as seen from Ext. PW 35/2. The SIM Card relating thereto was also found in Mohammed's purse. Not only that, there is clear evidence to the effect that the mobile instruments were being freely exchanged between Afzal and Mohammed and other terrorists. This is the third circumstance.
Before going into the details on these aspects, it may be noted that the handset found in the truck in which Afzal was travelling and which he pointed out to the police was having IMEI No. 350102209452430. It was a mobile phone instrument of Nokia make and it was being used for the operation of phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was furnished by PW61 and PW62. Its IMEI number and the cell phone number with which it was being operated is established by the evidence of investigating officer coupled with the call records filed by the witnesses. It is also clear from the call record that it was the last instrument on which the said number 89429 had been operated as late as 13.12.2001.
The fact that the instrument bearing number 52430 was being carried by Afzal in the truck would give rise to a reasonable inference that the cell-phone number with which the instrument was being operated was that of Afzal and the said phone number was under his use. The appellant, Afzal, apart from denying the recovery at Srinagar --which denial cannot be said to be true, did not account for the custody of the phone. The said phone number cannot be related to Shaukat who was also travelling with Afzal because Shaukat was having his own phones which were seized from his residence on 15th December. In the circumstances, even a presumption under Section 114 can be drawn that the number 9811489429 was at all material times being used by the accused, Afzal.
The facts that the SIM card was not found in the mobile phone and that the IMEI number of the instrument was not noted by PW 61 cannot be the grounds to disconnect Afzal from the custody of the said phone. The IMEI number found on the phone was sent to trace the number of the cell phone. One more point has to be clarified. In the seizure memo (Ext. 61/4), the IMEI number of Nokia phone found in the truck was noted as 52432. That means the last digit '2' varies from the call records wherein it was noted as 52430. Thus, there is a seeming discrepancy as far as the last digit is concerned. This discrepancy stands explained by the evidence of PW 78 a computer Engineer working as Manager, Siemens. He stated, while giving various details of the 15 digits, that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as '0'. The witness was not cross-examined.
This mobile number ..89429 was also used in the instrument No. IMEI 449269219639010 recovered from the deceased terrorist Raja and was then used in the handset having number 350102209452430(2) i.e. the instrument recovered from the truck at Srinagar, as pointed out by the High Court at paragraph 325 of the judgment. The instrument recovered from Raja was the one used by Afzal i.e. on phone No. 89429 between 6.11.2001 and 23.11.2001. The mobile instrument recovered from Rana (IMEI 449269405808650) (Cell phone No.9810302438) was used by Mohammed who in turn was using the phone of Afzal also. This was the phone that was purchased by Afzal from PW49 -- Kamal Kishore.
Now, we shall proceed to give further details of the phone calls and the instruments used, more or less in a chronological order insofar as they throw light on the close association of Afzal with the deceased terrorists. The SIM Cards related to the mobile phones bearing Nos. 9810693456 and 9810565284 were recovered from the purse of the deceased terrorist Mohammed. The first call from the first number was from Mohammed to a Delhi landline number on 21.11.2001. The first call to the second number was from Bombay on 24.11.2001. It shows that these two phones were activated by Mohammed in the third week of November, 2001 when he was in Delhi. It is established from the call records that the second call from the Bombay number to Mohammed was received when the said mobile number (9810565284) was being used in the handset having IMEI No. 449269219639010(2). This is the same handset which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3). Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset which was being used by Afzal which reveals the nexus between both. Evidence of the computer experts PWs 72 & 73 together with their reports (Ext.PW73/1 & 73/2) would reveal that a file named Radhika.bmp was created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the name of Sanjay Sharma is found and it contains the address No.10, Christian Colony, where Mohammed was staying and the phone No. 9811489429 (belonging to Afzal). The other I.Cards recovered from the body of the deceased terrorist which were fake ones, were also prepared from the same laptop as established by the testimony of PW72 and PW59. Thus, together with the activation of phones, simultaneous activity on the laptop to create bogus I. Cards was going on at the same time i.e. 21.11.2001 onwards. On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001. This gap is explained by the prosecution by referring to the confessional statement of Afzal wherein he said that towards the end of November, he (Afzal) went to Kashmir and came back to Delhi along with two other terrorists in the first week of December. But as the confessional statement is not taken into account, we cannot take note of that explanation. On 5th December, 2001, Mohammed called two Dubai numbers from his mobile phone No. 9810565284 and the call record --Ext.PW35/4 would show that Mohammed made those calls to Dubai by using the same handset which was being used by Afzal for his number 9811489429. PW49, who identified Afzal in the Court, testified to the fact that Afzal had purchased Motorola mobile phone of model 180 from his shop on 4.12.2001 which tallies with the description of the phone bearing the IMEI number referred to above.
The next point to be noted is that the said phone instrument bearing IMEI No. 39010 was finally recovered from the deceased terrorist Raja as per the seizure memo (Ext.PW2/2). A perusal of the call record discloses that the said instrument was being used by the accused Afzal (with his number ...89429) till the noon of 12.12.2001. It shows that such interchange of phones would not have been possible, but for the meeting of the Afzal with the slain terrorists on 12th December. There were calls to the mobile number 9810693456 the SIM Card of which was recovered from the body of Mohammed vide Ext.PW4/8 and which was being operated from the instrument IMEI No. 449269405808650 (Ext.PW35/5). On 7th & 8th December, Afzal called Mohammed seven times from his phone No. 9811489429 to Mohammed's No. 9810693456 and the said mobile of Mohammed was being used in IMEI No. 808650 (Ext.PW35/5). Thus Mohammed used the same Motorola phone (Ext.P28) which was finally recovered from the deceased Raja vide seizure memo (Ext.PW2/2) on the SIM card (described as 'Magic Card') for the No. 9810693456 and the said card was recovered from Mohammed vide Ext.PW4/8. As per the testimony of PW49, the said Ext.P28 was purchased by Afzal. It is pertinent to note that the said instrument was never used by Afzal though it was purchased by him but it was being used by Mohammed and it ultimately reached Raja.
The deposition of PW44 discloses that Afzal, who was identified by him in the Court, came to his shop on 7th or 8th December and purchased a mobile phone of J70 model of Sony make which he identified as Ext.P-37 seized under Ext.PW4/14 from the body of Mohammed. Its IMEI number was 35066834011747/2 and its cell-phone number was found to be 9810511085. This fact would only lead to the inference that contemporaneous to the crucial incident of 13th December, Afzal met Mohammed and supplied the handset of the mobile phone. That apart, we find the exchange of calls between them. From the call records in Parts VI & IX, it is evident that Afzal was in touch with Mohammed over phone on seven occasions on 7th and 8th December and they were using the two phones with the Cell numbers referred to supra, though, two or three calls of them were of very short duration. It may also be noticed that a satellite phone contacted Afzal for a short-while on his number 9811489429 and the same satellite phone contacted Mohammed on his phone No. 9810693456 on 10th December for five minutes. On 12th December, Mohammed contacted Raja for 83 seconds and thereafter a satellite phone contacted Mohammed for 11 minutes and the same satellite phone contacted Raja twice for about 3= minutes. This is borne out by call records at volume VI. The phone number of Raja was 9810510816 as discovered from the phone instrument recovered from his body.
Then we come to the crucial day i.e. 13.12.2001. Mohammed called Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the Parliament. This is borne out by the call records of 9810693456 and 9811489429 (phones traceable to Mohammed and Afzal, respectively). At about the same time, there was exchange of calls between Afzal and Shaukat on their phone numbers . 89429 and 73506. The call records at Part IX, Page 20 pertaining to 9811489429 the user of which can be traced to Afzal and the instruments recovered would reveal that the SIM Card pertaining to the said mobile number (89429) was activated on 6th November and was used on the handset bearing IMEI No. 449269219639010 recovered from the deceased terrorist Raja as per Ex. PW2/2. The call record would further show that its user was discontinued on 29th November till 7th December, when, again, it was put to use on 12th December. The last call was at 12 noon. Thereafter, the SIM Card pertaining to this number (i.e. .89429) was used in the handset No. 350102209452430, which is the instrument (Ext.P84) recovered from the truck at Srinagar, on being pointed out by Afzal. The picture that emerges is this: The fact that an instrument used by Afzal (with the phone number 9811489429) till 12.12.2001 was recovered from one of the deceased terrorists on the date of incident, reveals that Afzal would have necessarily met the deceased terrorist between the afternoon of 12th December and the morning of 13th December.
One point urged by Shri Sushil Kumar is that although the sanction order authorized the interception of Phone No. ..06722, there is no evidence regarding the details of investigation of the calls made or received from that number. No question was put to the witnesses on this point. It is quite probable that the investigator would have entertained some suspicion in this regard and would have, by way of caution sought permission to intercept. That does not cast a cloud on the prosecution case built up on the basis of the call records pertaining to the phones used by the accused. We can draw no adverse inference from the fact that the details of aforementioned number was not given.
(vi) Hideouts and recoveries
The other circumstances which prominently shed light on the involvement of the accused Afzal relate to the discovery of the abodes or hideouts of the deceased terrorists and the recovery of various incriminating articles therefrom as well as the identification of certain shops from where the appellant and one or the other deceased terrorist purchased various items used for preparation of explosives etc. These are spoken to by PW76 Inspector Gill, the landlords of the concerned premises and the shopkeepers. The informations furnished to the Investigating Officers leading to the discovery of facts and the conduct of the accused in pointing out the places where the terrorists stayed are admissible either under Section 27 or Section 8 of the Evidence Act and they supplement the evidence furnished by the I.Os., the landlords and the shopkeepers.
Before proceeding further, we may advert to Section 8 of the Evidence Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an accused person relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either previous or subsequent conduct. There are two Explanations to the Section, which explains the ambit of the word 'conduct'. They are:
Explanation 1 : The word 'conduct' in this Section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other Section of this Act.
Explanation 2 : When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. The Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute 'conduct' unless those statements "accompany and explain acts other than statements". Such statements accompanying the acts are considered to be evidence of res gestae. Two illustrations appended to Section 8 deserve special mention.
The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence "the police are coming to look for the man who robbed B", and that immediately afterwards A ran away, are relevant.
(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
We have already noticed the distinction highlighted in Prakash Chand's case (supra) between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 Cr.P.C. The evidence of the circumstance, simplicitor, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as 'conduct' under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand's case. In Om Prakash case (supra) [AIR 1972 SC 975], this Court held that "even apart from the admissibility of the information under Section, the evidence of the Investigating Officer and the Panchas that the accused had taken them to PW11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 as 'conduct' of the accused".
Coming to the details of evidence relating to hideouts and recoveries, it is to be noted that the accused Afzal is alleged to have made a disclosure statement to PW66 --Inspector Mohan Chand Sharma on 16th December, 2001. It is marked as Ext.PW64/1. In the said disclosure statement, all the details of his involvement are given and it is almost similar to the confessional statement recorded by the DCP. The last paragraph of the statement reads thus: "I can come along and point out the places or shops of Delhi wherefrom I along with my other associates, who had executed the conspiracy of terrorist attack on the Parliament, had purchased the chemicals and containers for preparing IED used in the attack, the mobile phones, the SIM Cards and the Uniforms. I can also point out the hideouts of the terrorists in Delhi. Moreover, I can accompany you and point out the places at Karol Bagh wherefrom we had purchased the motorcycle and Ambassador car. For the time being, I have kept the said motorcycle at Lal Jyoti Apartments, Rohini with Nazeer and I can get the same recovered. "
This statement has been signed by Mohd. Afzal. In fact it is not required to be signed by virtue of the embargo in Section 162(1). The fact that the signature of the accused Afzal was obtained on the statement does not, however, detract from its admissibility to the extent it is relevant under Section 27.
We shall now consider the details of evidence on these aspects. PW76 I.O. deposed that the two accused persons, namely, Afzal / Shaukat led him to the following places:
(i) Hideout at 2nd floor, A-97, Gandhi Vihar (PW34)
(ii) Hideout at 2nd floor, 281, Indira Vihar (PW31 & PW32)
(iii) Shop of PW4-- Anil Kumar from where Ammonium Nitrate was purchased.
(iv) Shop of PW42--Ramesh Advani from where Silver powder was purchased.
(v) Shop of PW41-- Ajay Kumar, Sawan Dry Fruits from where dry fruits were purchased.
(vi) Shop of PW43-- Sunil Kumar Gupta at Fatehpuri where Sujata Mixer was purchased.
(vii) Shop at Hamilton Road from where red light was purchased.
(viii) Shop of PW29 --Gupta Auto Deals from where motorcycle HR51E5768 was purchased.
(ix) Shop of PW44-- Sandeep Chaudhary at Ghaffar Market from where Sony cellphone was purchased.
(x) Shop of PW20-- Harpal Singh at Karol Bagh from where Ambassador Car bearing DL 3CJ 1527 was purchased.
(xi) Shop of PW49--Kamal Kishore from where Motorola cell phone and a SIM card were purchased.
Now, we shall refer to the specific details of evidence in this regard. PW76 I.O. deposed to the fact that Afzal and Shaukat pointed out the 2nd floor of A97, GANDHI VIHAR as the place where the deceased terrorists stayed. This is recorded by PW76 in the memo marked as Ext.PW34/1. PW76 deposed that on his request, the landlord of the house PW34 accompanied him to the 2nd floor and the lock of the house was broken and the premises searched in the presence of PW34. The various articles recovered and seized consequent upon the search of the premises are recorded in Ext.PW34/1. They are: (a) 3 electronic detonators (Ext.P60/1, 60/2 & 60/3). (b) two packets of silver powder bearing the address 'Tola Ram & Sons, 141, Tilak Bazar, Delhi' (Ext.P61). (c) A bucket (Ext.P62) of prepared explosive material. Sample of explosive material is Ext.P63. (d) two boxes containing Sulphur (Ext.P64 & P65). (e) two cardboard cartons (Ext.P66 & P67) containing 20 jars each of Ammonium Nitrate of 500 grams each (Ext.P68/1 to Ext.P68/38) (one jar was taken out from each carton as a sample). (f) Yamaha motorcycle bearing No.DL-1S-K-3122 (Ext.P76) found at the gate of the house and seized as per Ext.PW34/2. (g) Maps of Delhi city and Chanakyapuri area found in the room vide Ext.P34/3. (h) Police uniforms and police beret caps (P73 series). (i) Sujata Mixer Grinder with three jars (Ext.P72) seized as per Ext.PW34/4. PW34 confirmed this fact in his deposition. In addition, PW34 identified Afzal and Shaukat in the Court and stated the following facts: That Afzal had introduced himself under an assumed name of Maqsood and took the 2nd floor on rent in the first week of November, 2001. That Shaukat and three or four boys used to visit Afzal at that premises quite often and on the crucial day i.e. 13.12.2001, at 10 am, Afzal, Shaukat and four more persons left in an Ambassador car and Afzal had returned a shortwhile later and then left the premises subsequently. That the deceased terrorist Mohammed, whose photograph he identified, was also residing with Afzal sometime after the premises was taken on rent.
The High Court accepted the testimony of PW34 including the identification of the deceased Mohammed by photograph (Ext.PW1/20). He could not identify the remaining four terrorists.
Next, we come to the evidence in regard to the premises at INDIRA VIHAR and the recoveries therefrom. Mohd. Afzal, while being examined under Section 313 Cr.P.C. admitted that the house at 281, Indira Vihar was taken on rent by him after his return to Delhi after Eed. PW76 deposed to the fact that Afzal and Shaukat led him and the police party to the premises at 281, Indira Vihar as the place where Afzal and the five slain terrorists stayed. The memo of pointing out is Ext.PW32/1. PW32, who is the landlord, stated that on 16th December, 2001, the accused Afzal and Shaukat whom he identified correctly, were brought to his house by the police and Afzal told the police that he was the landlord. Thereafter, the police took him and the two accused to the 2nd floor which was found locked and as there was no key, the police broke the lock. PW32 then stated that on a search of the premises, a number of articles as recorded in the memo of seizure Ext.PW32/1 were found. The articles recovered as a result of search were, (i) three electric detonators attached with a wire kept in a box, (ii) six pressure detonators fitted in a plastic box, (iii) two silver powder packets of thousand grams each with the slips containing the name of 'Tolaram and Sons, Tilak Bazar', (iv) two boxes of sulphur, (v) a motorcycle of Yamaha make parked near the gate of the house, (vi) household articles etc. PW 32 attested the seizure memo.
The motorcycle was seized as per the seizure memo -- Ext.PW32/2. It transpires from the evidence of PW53 who is an official of the Road Transport Department read with Ext.PW53/1 that the said motorcycle was registered in the name of Shaukat Hussain.
In connection with the renting of the house at Indira Vihar, PW31 who is a property dealer, was examined. He stated that Mohd. Afzal approached him and on 9.12.2001 he fixed up the house of PW32 at Indira Vihar on a rent of Rs.4000 p.m. He identified Mohd. Afzal. PW32 the landlord confirmed in his deposition that the 2nd floor of the house was taken on rent by Mohd. Afzal through PW31. He further stated that he imposed a condition that the tenant should reside with his family only. Having found some five or six other persons on 11.12.2001, he questioned Afzal on which he replied that they were his friends and they would leave soon and thereafter he would be bringing his family. On 12.12.2001, Afzal left the premises locking the door informing him that he would bring his family and children after Eed. Then he speaks to the details of search and seizure. He was a signatory to the seizure memos Exts.PW32/1 and PW32/2.
The High Court held that the factum of Mohd. Afzal taking the premises on tenancy, the recovery of articles and detonators on 16.12.2001 and the fact that five or six persons were visiting the premises were found to be established by the testimony of PWs 31 & 32. Though PW32 is supposed to have identified the persons found with Afzal by the photographs of dead bodies of terrorists, we do not attach any weight to this part of the evidence because the police showed the photos and told him that they were the photographs of deceased terrorists. He also did not take into account this part of testimony of PW32. At this stage, we may refer to the evidence of the experts of Forensic Science Laboratory, Chandigarh. PW22 testified in regard to the explosives contained in I.E.D. and the car bomb which was recovered from the scene of offence on 13th December, 2001. From his report Ext.PW21/1 and PW21/2, it is evident that Ammonium Nitrate, Aluminum/Silver powder and Sulphur was found in the explosives. The testimony of PW24 establishes that the samples of chemicals (collected from the hideouts) were Aluminum Nitrate, Sulphur and Silver powder. The same were found in the unused explosives.
Amongst the hideouts furnishing the links of association between the accused Afzal and the deceased terrorist Mohammed is the one in the Boys' hostel, Christian Colony. It is in the evidence of PW38 who was running an STD booth at Christian Colony that Afzal and Shaukat met him and made enquiries about the availability of rented accommodation. Then on 6.11.2001 he took him to PW37 who was running a hostel at B-41, Christian Colony. PW38 identified Afzal and Shaukat. PW37 deposed that he let out a room on the Ground Floor and when he went to the hostel on 26th November, he found one Kashmiri boy in the room who disclosed his name as Ruhail Ali Shah. It may be noted that the witness identified the said Ruhail Ali Shah as the deceased terrorist Mohammed by reference to his photograph (Ext.PW29/5) in the presence of police and in the Court. The identity card of Ruhail Ali Shah (Ext.PW4/4) shown to him was also identified and it is the card that was found at the spot of offence. PW37 also stated that he had seen Afzal and Shaukat visiting the so called Ruhail Ali Shah. It may be noted that the said room in Christian Colony was taken on rent at about the same time when the premises at Gandhi Vihar was hired. The testimony of this witness was found to be reliable by the High Court. We see no good reason to discard his evidence on the ground that he did not produce the record of their stay. Now we turn our attention to the evidence given by the shopkeepers in regard to the purchase of various things by the accused Afzal himself or in the company of others.
(vii) Purchases from shops
The next circumstance which provides important links in the chain of circumstantial evidence is that the accused Afzal led the Investigating Officer to various places from where the incriminatory articles found in the premises at Gandhi Vihar and Indira Vihar and at the scene of offence were purchased. Now we shall briefly refer to the evidence in regard to the purchase of chemicals used in explosives and the Mixture-Grinder utilized for preparing the explosive substance. PW-76 recorded in Ex. 40/1 dated 17.12.01 that Afzal furnished information that he had visited the shop of PW-40 along with deceased accomplice Hamza at Tilak Bazar and purchased 50kg of ammonium nitrate packed in kg. boxes and that he would show the shop. Accordingly, Afzal led the Police to the shop of PW-40 and identified the proprietor which fact is relevant and admissible under Section 8 of the Evidence Act. PW-40 identified the accused Afzal, in the Court and stated that he came to his shop on 6.12.01 to purchase ammonium nitrate and that he placed an order for 50kg, paid an advance of Rs. 800/- and came the next day to take delivery of the same. On 7.12.01, he came with one more person, paid the balance and took the delivery of 50kg ammonium nitrate which was packed in = kg plastic bags.
In view of the short time gap and the order for a large quantity, there is no reason to doubt the identification of Mohd. Afzal by PW 40. We have already seen that ammonium nitrate was one of the chemicals recovered from the premises at Gandhi Vihar. PW-40 also identified the deceased Hamza by his photograph - Ext.40/2. According to PW-40, it is he who accompanied Afzal the next day. However, in the memo of pointing out which is Ext.40/1, it was recorded that Afzal disclosed that he visited the shop with Haider. This discrepancy or mistake in recording the name does not make a dent on the veracity of evidence of PW-40 on the point of identification of photograph in Ext. 40/2. The High Court accepted the evidence of PW-40. Then, about the purchase of silver powder, PW-76 recorded in Ex. 42/1 that Afzal disclosed having purchased the silver powder from the shop of PW-42. It may be stated that on the packets of silver powder (Ex.P/51), the name and address 'Tolaram & Sons, 141, Tilak Bazar' was written. Thus, the name and address of the shop was already known to the Police. Therefore, Section 27 cannot be pressed into service. However, the conduct of Afzal in pointing out the shop and its proprietor (PW42) would be relevant under Section 8 of the Evidence Act. PW- 42 in his deposition testified to the factum of purchase of 50 kgs of silver powder by Afzal on 11.12.01. The witness identified the seized samples as having been sold by him. He also identified Afzal. He specifically stated that the quantity purchased by him being large, Afzal's presence was very much there in his memory. It may be recalled that silver powder was recovered from the premises at Indira Vihar. The samples seized from Indira Vihar were identified by PW-42. It is to be noted that Aluminium powder was one of the ingredients used in the IEDs found in the possession of the deceased terrorists at the Parliament complex.
Another item of purchase was dry fruits. Three polythene packets of dry fruits bearing the name of 'Sawan Dry Fruits' (Ex. P/10) and having the address 6507, Fatehpuri Chowk were recovered at the scene of offence near the bodies of the deceased. PW-76 stated that Afzal led them to the shop of Sawan Dry Fruits. PW41-- the salesman, gave evidence regarding the transaction of sale on 11.12.01. He identified the accused Afzal as the person who had purchased the dry fruits. The witness also identified the photograph of Rana even as that of the person who accompanied Afzal. PW41 also stated that Afzal was in the shop for nearly half an hour. The High Court, while observing that there was nothing to discredit the evidence of PW-41, it, however, ignored his testimony on a tenuous ground that the Police were already aware of the source of purchase of the dry fruits. Though there was no discovery within the meaning of Section 27, there is no reason why the evidence of PW-41 should be eschewed on that account. However, in regard to the identification of the photograph of deceased terrorist, his evidence does not inspire confidence, in view of the time lag of 8 months and the manner in which the answer was sought to be elicited from him. Then, we have the evidence of purchase of Sujata Mixer-Grinder (Ext.P72) which was found in the hideout at Gandhi Vihar. PW-76 deposed that Afzal took the investigating team to an electrical shop at Fatehpuri from where the Mixer-Grinder was purchased. The memo of pointing out is Ex. 76/2. The pointing out of the shop and the identification of the owner of the shop wherefrom the purchase was made are relevant facts to show the conduct of the accused referred to in Section 8 of the Evidence Act. In any case, the evidence of PW-43 establishes the fact that Afzal bought the Mixer-Grinder of Sujata make on 7.12.01. The relevant cash memo was filed by him. The witness identified Afzal in the Court and also the Mixer-Grinder. The High Court has accepted the testimony of this witness. Thus, the nexus between the Mixer-Grinder which was recovered from the premises at Gandhi Vihar and the one purchased by Afzal from the shop of PW-43 stands established by the evidence on record. The evidence of the report of the experts, namely PWs 22 & 24 establish, as held by the High Court, that the composition of chemicals found sticking to the jar of the mixer grinder and the chemicals in the bucket were of the same composition as was the composition of the chemicals in the explosives seized from the deceased terrorists at Parliament House.
Another item of purchase was a motorcycle of the Yamaha make bearing registration No.HR-51-E-5768. PW76 stated that on 18.12.2001 the accused Afzal took the investigating team to Gupta Auto Deals at Karol Bagh from where the said motorcycle was purchased and he pointed out the shop owner-- PW29. The memo of pointing out is Ext.PW29/1. This conduct of Afzal is relevant under Section 8 of the Evidence Act. PW29 deposed that four persons including a lady came to his shop in the noon time to see the motorcycle. After taking trial run, they went away and in the evening two persons came and purchased the motorcycle for Rs.20,000/-. As already noticed, the said motorcycle was found at A-97, Gandhi Vihar and the same was seized by the I.O. The witness handed over the book containing the delivery receipt (Ext.29/2 & 29/3) to the police, which were filed in the Court as PW29/2 & PW29/3. The witness identified Afzal and Shaukat in the Court and the deceased terrorist Mohammed from the photograph (Ext.29/5). He was however unable to identify the lady in view of the fact that she was at a distance. The High Court rightly took the view that in view of what was narrated by the witness, the identification of the accused and the deceased terrorist was quite probable. It was not a case of 'fleeting glance'. This is a discrepancy between the seizure memo (PW29/4) dated 19.12.2001 and the statement of PW29 under Section 161 Cr.P.C. that he handed over the papers on 18.12.2001. This apparent contradiction was not pointed out to the witness and no question was asked about it. The next important circumstance against the accused Afzal is his association with Mohammed in purchasing the Ambassador car with registration No.DL-3CJ-1527 from PW20. The fact that the said car was used by the slain terrorists for entering the Parliament with arms and explosives, is not in dispute. PW20 after hearing the news that the car with the said number was used by the terrorists, he straight went to the Parliament Street Police Station along with the copies of documents. Having learned that his SHO was at the Parliament House, he went there and met the SHO at the gate and passed on information to him that the car was sold by him on 11.12.2001 to one Ashiq Hussain Khan. He identified the car, which was lying at gate No.11, then he handed over the documents pertaining to the car which were seized under the memo Ext.PW1/7. The documents were later filed in the Court. PW20 correctly identified the accused Afzal as the person who had come with Ashiq Hussain Khan for the purchase of car. The delivery receipt of the car issued by Ashiq Hussain Khan is Ext.PW1/6. The delivery receipt was signed by Afzal as a witness. The signature of Afzal on the delivery receipt is proved by the analysis of his handwriting by the expert --PW23. This is apart from the testimony of PW20. In the course of examination under Section 313 Cr.P.C., Afzal admitted that on 11.12.2001 he accompanied Mohammed to the shop of PW20 for purchasing a secondhand car but later he denied it. It is also worthy to note that Afzal did not let the amicus to put a suggestion that he had not visited the shop of PW20. PW20 deposed that he had taken photocopy of the I.Card and a coloured photo of Ashiq Hussain Khan, which are Exts.PW25/4 & PW20/3. PW20 further deposed that the dead body lying at Gate No.1 was of the same person who had introduced himself as Ashiq Hussain Khan while purchasing the car. When he was shown Ext.PW4/3 which is the I.Card in the name of Ashiq Hussain Khan recovered from the deceased terrorist Mohammed, PW20 confirmed that it was the same I.Card that was shown to him. The High Court held that the evidence of PW20, who was an independent witness, was in no manner tainted and held that Afzal was involved in the purchase of the car used by the terrorists to enter the Parliament House. This conclusion was reached by the High Court even after excluding the evidence of PW23, Principal Scientific Officer who confirmed that the signatures on the delivery receipt-- Ext.PW1/6 tallied with his specimen signatures. In this context, a contention was raised before the High Court that in view of Section 27 of POTA, specimen signature should not have been obtained without the permission of the Court. In reply to this contention urged before the High Court, Mr. Gopal Subramanium, the learned senior counsel for the State clarified that on the relevant date, when the specimen signatures of Afzal were obtained, the investigation was not done under the POTA provisions and de hors the provisions of POTA, there was no legal bar against obtaining the handwriting samples. The learned counsel relied upon by the 11 Judge Bench decision of this Court in State of Bombay Vs. Kattikalu Oghad [1962 (3) SCR 10] in support of his contention that Article 23 of the Constitution was not infringed by taking the specimen handwriting or signature or thumb impressions of a person in custody. Reference has also drawn to the decision of this Court in State of U.P. Vs. Boota Singh [(1979) 1 SCC 31]. We find considerable force in this contention advanced by Mr. Gopal Subramanium. In fact this aspect was not seriously debated before us.
The purchase of mobile cellular phone instruments by Afzal in the shops of PW44 and PW49, accompanied by Shaukat, is another important circumstance that can be put against him. As already noticed, these mobile instruments found their way to one or the other deceased terrorists and they were being interchangeably used by Afzal, Mohammed and Rana. The evidence of PW76 coupled with Ext.PW44/1 (pointing out memo) reveals that the accused Afzal took the police party to shop No.26, Gaffar Market and pointed it out as the shop from which he purchased the mobile phone handset of Sony make. The conduct of the accused in pointing out the shop and identifying the shop owner is relevant under Section 8 of the Evidence Act.
PW44 - the shop owner identified Afzal and the mobile phone (Ext.P37) sold to him on 7/8.12.2001. The said instrument (Ext.P37) was recovered from the body of the deceased terrorist Mohammed vide Ext.PW4/14. He was confronted with some discrepancy as to the exact date of purchase, which does not appear to us to be very material. The fact that the transaction was unaccounted is also not a ground to eschew his evidence especially when the High Court found that his evidence was trustworthy. There is no warrant for the further observation of the High Court that independent corroboration of his testimony was lacking and therefore the evidence was liable to be ignored. Regarding the purchase of Motorola mobile phone (Ext.P28), PW76 deposed that on 19.12.2001, the accused Afzal led the investigating officials to the shop of PW49 at B-10, Model Town from where the said mobile phone was purchased. The memo of pointing out is Ext.PW49/1. The conduct of the accused in leading the I.O. to the shop of PW49 and identifying him as the shop owner becomes relevant under Section 8 of the Evidence Act. PW49, while identifying Afzal and Shaukat in the Court deposed about the sale of the phone and one SIM Card to the said persons. The said phone which was sold by PW49 to the accused was recovered from the deceased terrorist Rana vide Ext.PW2/2. This statement of the witness was assailed on the ground that the SIM Card pertaining to the No. 9811489429 was stated to have been sold on 4.12.2001. However, the call records pertaining to this number show that the phone was active since 6.11.2001. The High Court refuted this criticism by observing thus:
"The conclusion to which the defence has jumped is, in our opinion, based on an assumption that when PW49 said that he sold a SIM card to Mohd. Afzal on 4.12.2001, this was the SIM card. In his testimony, PW49 did not say that he sold this SIM to Mohd. Afzal on 4.12.2001, he only said that he sold one SIM card (without identifying it) to Mohd. Afzal on 4.12.2001. It could be any card. The witness may have sold the particular card to Mohd. Afzal or any other person on 6.12.2001. The witness does not stand discredited.
In the very next sentence, the High Court however observed that in the absence of independent corroboration of the testimony of PW49, his evidence ought not to be taken into account. Here also, just as in the case of PW44, the High Court fell into error in discarding the evidence on an untenable ground. It is to be noted that the handset (Ext.P84) which was used for operating 9811489429 on the date of incident, was recovered from Afzal at Srinagar. The call records Ext. PW36/3 would reveal that the said number was activated on 6.11.2001 itself and that even prior to 4th December, the SIM card was held by the same person or persons who operated it after 4.12.2001. The SIM card should have been necessarily sold to Afzal prior to 4.12.2001.
It is contended that the test identification should have been conducted to assure credibility to the evidence of identification of Afzal by the shopkeepers. It is also contended that the photograph of the deceased Mohammed should have been mixed up with the other photographs in order to impart credibility to the version of witnesses who claimed to have seen him. We find no substance in these contentions.
It is well settled that conducting the Test Identification Parade relates to the stage of investigation and the omission to conduct the same will not always affect the credibility of the witness who identifies the accused in the Court. In Malkhansingh & Ors. Vs. State of M.P. [(2003) 5 SCC 746] B.P. Singh, J. speaking for a three Judge Bench observed thus:
"It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case, the Courts below have concurrently found the evidence of the prosecutrix to be reliable"
The earlier observation at paragraph 10 is also important:
"It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court."
In the present case, the accused persons themselves led the witnesses to the concerned shops and the places and pointed out the witnesses. Therefore, the question of holding TIP thereafter does not arise. The evidence of the prosecution witnesses who could identify the two accused persons can be safely relied upon for more than one reason. Firstly, the time lag between the date of first and next meeting was not much, it was just a few days or at the most two weeks. Secondly, there was scope for sufficient interaction so that the identity of the accused could be retained in their memory. It was not a case of mere 'fleeting glimpse'. For the same reasons, they could identify Mohammed by photograph which was quite clear, though. If the step was taken by the I.O. to have the test identification of photographs of dead bodies, it would have given better assurance of the reliability of identification. However, the failure to do so cannot be a ground to eschew the testimony of the witnesses whose evidence was concurrently accepted by the trial and the appellate Court. It is not the case of the appellant or any of the accused that the identification by photographs is not permissible under law.
The recovery of 'laptop' from the truck in which Afzal and Shaukat travelled on being pointed out by them is a highly incriminating circumstance against them. It is established from the evidence that the said laptop was used for the preparation of I. Cards and the I. Cards found at the spot on the dead bodies and the MHA sticker found on the car were those produced from the same laptop. It admits of no doubt that the laptop, which must have been with the deceased terrorist Mohammed and others came into the custody of Afzal (and Shaukat) soon after the incident on 13th December and such possession has not been accounted for.
Now let us delve into further details, excluding from consideration the confessional statements, according to which the laptop was given to Afzal and Shaukat by Mohammed to be handed over to Ghazibaba.
PW61 Dy. S.P., Srinagar speaks to the recovery of the laptop in a briefcase with attachments from the truck pursuant to the disclosure made by Afzal and Shaukat when the truck was intercepted at Srinagar. Ext.PW61/4 is the seizure memo. PW62 the Head Constable, corroborates what PW61 stated. PWs 64 & 65, who are the Sub-Inspectors of Special Cell, speak to the fact that the laptop along with the accessories was handed over to them as the property recovered by PW61. The laptop is Ext.P83. The laptop and other articles seized at Srinagar were deposited in the malkhana of the police station in sealed condition as per PW66. Then it was the job of PW80 ACP, who took over investigation on 19th December, to have the laptop examined by experts. The experts, namely, PW72 a computer engineer and PW73 Assistant Government Examiner of Questioned Documents, Bureau of Police Research, Hyderabad submitted their reports which are Exts.PW72/1 and PW73/1. PW79, who was associated with PW73, was also examined by the prosecution. The laptop contained files relating to identity cards recovered from the deceased terrorists wherein the address was mentioned as Christian Colony or Gandhi Vihar. PW72 testified that he took printouts from the laptop which are Exts.PW59/1 to PW59/7 and PW72/2 to PW72/13 and these documents were compared to the original identity cards and the MHA sticker (Ext.PW1/8). The forensic expert PW59 submitted a report according to which the laptop (PW83) was in fact used for the creation of I. Cards and the MHA sticker found at the spot. The analysis and conclusions reached by PWs73 & 79 match with those of PW72. Thus, two different sets of experts have come to the same conclusion about the contents of the laptop. PW72 gave a detailed account of various softwares that were found installed in the laptop and he gave a chronological account. It was found that from November 2001 onwards, certain files were copied on to the system. The system was used for crating, editing and viewing .tmp files (most of which are identity cards) and viewing files stored in geo microchip. Editing of various identity cards took place close to the date of occurrence. Some records were edited as late as 12th December. The summary of important documents found on the laptop contains identity cards which were similar to those recovered from the deceased terrorists, ASF video files containing clippings of political leaders with Parliament in background shot from TV news channels and another file containing scanned images of front and rear view of I. Card and a .tmp file containing design of MHA sticker. The report also reveals that the game 'wolf pack' (sun) had registration details on the laptop which showed the user name as 'Ashiq' a name which was found in one of the identity cards shown to PW20 at the time of purchase of the car and to the landlord of the Christian Colony Hostel. The documents found in the laptop were the identity cards in the name of Ashiq Hussain Khan similar to Ext.4/3, the front side scanned image of Cybertech Computer Hardware Solution identity card in the name of Ashiq Hussain Khan. Similar to the one found at the spot of occurrence, the identity cards of Xansa Websity of Riyad Ahmad which contains the address of Gandhi Vihar and the phone number of Afzal, the identity card of Cybertech Computer Education of Ashif Mustafa, two identity cards of Xansa Websity of Neeraj Bakshi and Anil Kumar which were similar to the identity cards found at the spot, two identity cards of Xansa Websity with the name Sunil Verma and Raju Lal which were similar to the cards found at the spot, designed sticker of Ministry of Home Affairs found and the relative file containing the same text as was found on the sticker.
All these documents were found created and last updated between 1st December and 12th December, one of them was on 21st November, 2001. The documents referred to above establish that various identity cards which were similar to those recovered at the scene of offence were found in the laptop. The I. Cards that were not used were also detected. Documents found at the spot ('Q' series) were sent for forensic examination in order to report the results of comparison of these documents with those found inside the laptop. Besides, the sample originals of the MHA sticker and the sample identity cards of Xansa Websity ('S' series) were sent for comparison and report. The analysis was done by PW59 Senior Scientific Officer, CFSL. He reported that the MHA sticker image and the images of identity cards found in the laptop match with those found at the spot in general size, design and arrangement of characters. As regards 'S' series (genuine sample documents), the finding was that they differed with the identity cards etc., found at the spot. It may be stated that the franchisees of Xansa Websity were examined as PWs 25 and 50 and they produced the genuine samples and also testified to the fake names and addresses printed on the identity cards. We agree with the High Court that the testimony of PWs 59, 72, 73 & 79 establish beyond doubt that fake documents were created from the laptop which was evidently in the possession of the deceased terrorists and eventually recovered from Afzal/Shaukat in Srinagar. We find that the evidence of these witnesses could not in any way be shattered in the cross examination. There was no cross examination of the witness PW59 by Afzal. The limited cross examination on behalf of Shaukat did not yield anything favourable to the accused. As regards PW72, most of the cross examination was in the nature of hypothetical questions. Though there was no suggestion of any tampering to this witness, the witness stated that there was no evidence of replacement of the hard disk upon a perusal of the reg file. There was no suggestion to PW72 that the documents (printouts) taken from the laptop were not the real ones. Two different experts recorded same conclusions without knowing the report of each other.
One point of criticism levelled by the defence counsel is that in spite of the fact that the laptop was deposited in the malkhana on 16.1.2002, (after it was received back from PW72), the analysis by PW73 revealed that two of the files were last written on 21.1.2001 and one file was last accessed and last written on the same day. In this connection, it is to be noted that according to the case diary, the laptop was accessed by the independent agencies at the malkhana on 21.1.2002. It is clarified by the learned counsel for the State and as found by the High Court, the said files being self-generating and self- written, they reflected the date of writing as 21.1.2002, as the laptop would have been switched on by the investigating agencies on that date. While cross examining PW73, a question was put as to how a file could be written without it being accessed. The witness answered that the file cannot be written without being accessed by copying it on a different storage media. The learned counsel for the State is justified in his comment that the said answer was not a response pertaining to system files, which are self-generating and self-written. There was no suggestion to any witness that the date or time setting has been modified in the instant case so as to facilitate tampering. A mountain out of mole hill is sought to be made out by reason of the observation of PW73 that some of the files were last written after the date of seizure and the answer given by PW73 with reference to a general, hypothetical question.
The testimony of DW8 computer engineer, who was examined on behalf of the accused Gilani, does not in any way substantiate the point of criticism about the possible tampering of laptop or nor does it make a dent on the findings of the experts examined by the prosecution. The testimony of this witness was not with reference to any of the files on which certain doubts were raised. His testimony is, by and large, on hypothetical aspects and does not relate to the authenticity of the contents of laptop as reported by the other experts.
In the light of foregoing discussion, we hold that the laptop found in the custody of the appellants and the results of analysis thereof would amply demonstrate that the laptop was the one used by the deceased terrorists contemporaneous to the date of incident and it should have passed hands on the day of the incident or the previous day. The accused carrying the same with him soon after the incident furnishes cogent evidence pointing towards his involvement.
The circumstances detailed above clearly establish that the appellant Afzal was associated with the deceased terrorists in almost every act done by them in order to achieve the objective of attacking the Parliament House. He established close contacts with the deceased terrorists, more especially, Mohammed. Short of participating in the actual attack, he did everything to set in motion the diabolic mission. As is the case with most of the conspiracies, there is and could be no direct evidence of the agreement amounting to criminal conspiracy. However, the circumstances cumulatively considered and weighed, would unerringly point to the collaboration of the accused Afzal with the slain 'Fidayeen' terrorists. The circumstances, if considered together, as it ought to be, establish beyond reasonable doubt that Afzal was a party to the conspiracy and had played an active part in various acts done in furtherance of the conspiracy. These circumstances cannot be viewed in isolation and by no standards of common sense, be regarded as innocuous acts. His conduct and actions antecedent, contemporaneous and subsequent all point to his guilt and are only consistent with his involvement in the conspiracy. Viewed from another angle, the Court can draw a presumption under Section 114 of Evidence Act having regard to the natural course of events and human conduct that the appellant Afzal had nexus with the conspirators who were killed and all of them together hatched the conspiracy to attack the Parliament House and in that process to use explosives and other dangerous means. We are, therefore, of the view that there is sufficient and satisfactory circumstantial evidence to establish that Afzal was a partner in this conspired crime of enormous gravity.
Identification of the appropriate provisions of POTA and IPC under which the accused Afzal becomes liable for punishment is the next important task before the Court.
In dealing with this aspect, the first question that arises for consideration is whether the appellant Afzal can be convicted under Section 120B of IPC read with Section 3(1) of POTA and be punished under Section 3(2) for the offence of criminal conspiracy to commit a 'terrorist act' or whether he is liable to be punished only under sub-Section(3) of Section 3 of POTA. Mr. Sushil Kumar, learned senior counsel appearing for the appellant Afzal has contended, quite contrary to the stand taken by the other two senior counsel, that no offence under POTA is made out in the instant case and therefore POTA offences were not included in the beginning. He submits that the actions of the deceased terrorists and the alleged conspirators can all be brought within the scope of Section 121 and 121A of IPC. As the unauthorized interception of communications and inadmissible joint disclosures were found to be insufficient to make out the offence under Section 121, the police thought of adding POTA after 19th December, so that the confession to the police officer could be made the basis of conviction. We find it difficult to appreciate this argument. The propriety by or otherwise of the action of the investigating agency in adding POTA at a later stage is one thing; whether the offence under POTA is made out, in addition to the offences under IPC, is a distinct point, one shall not be mixed up with the other. As far as the non- applicability of Section 3 of POTA is concerned, the learned senior counsel appearing for Afzal has not given any particular reason as to why the acts done by the deceased persons did not amount to terrorist acts within the meaning of Section 3(1) of POTA. Whether the appellant has committed the terrorist act himself or not is a different matter but to say that POTA as a whole does not govern the situation is to take an extreme stand unsupported by reasoning.
We shall now consider the contentions of Mr. Shanti Bhushan and Mr. Ram Jethmalani that the conspiracy to commit a terrorist act is punishable only under sub-Section (3) of Section 3 of POTA and Section 120B IPC will have no application in relation to a terrorist act as defined by Section 3(1) of POTA. Though this contention raised by the learned counsel does not really arise for determination in the cases of the accused whom they represent in view of the conclusions reached by us as regards their culpability, we feel that the correctness of this contention has to be tested in so far as Afzal is concerned.
The stand taken by Mr. Gopal Subramanium is that on the commission of overt criminal acts by the terrorists pursuant to the conspiracy hatched by them and the accused, even the conspirators will be liable under Section 3(1)/3(2) of POTA. It is his contention that where overt acts take place or the object of the conspiracy is achieved, then all the conspirators are liable for the acts of each other and with the aid of Section 120B read with Section 3(2), all the conspirators are punishable under Section 3(2). The liability of mere conspirators is coequal to the liability of the active conspirators according to him. Alternatively, it is contended that on account of the perpetration of criminal acts by the deceased terrorists pursuant to conspiracy, the appellant is liable to be punished under Section 120B of IPC read with Section 3(1) of POTA and the punishment applicable is the one prescribed under sub-Section (2) of Section 3 of POTA. According to the learned counsel, sub-Section (3) of Section 3 does not come into play in the instant case because of the overt acts that have taken place in execution of the conspiratorial design.
As far as the first contention of Mr. Gopal Subramanium is concerned, we have already rejected his argument that on the principle of 'theory of agency', the conspirators will be liable for the substantive offences committed pursuant to the conspiracy. When once the application of the theory of agency is negatived, there is no scope to hold that the appellant, in spite of not having done any act or thing by using the weapons and substances set out in sub- Section(1)(a), he, as a conspirator, can be brought within the sweep and ambit of sub-Sections (1) & (2). The wording of clause (a) of Section 3(1) is clear that it applies to those who do any acts or things by using explosive substances etc., with the intention referred to in clause (a), but not to the conspirators who remained in the background.
We must now deal with the alternative contention of Mr. Gopal Subramanium that Section 120B of IPC can be combined with Sections 3(1) and 3(2) of POTA.
The contention of Mr. Shanti Bhushan and Mr. Ram Jethmalani is straight and simple. POTA is a special law dealing with terrorist activities and providing for punishment therefor. Conspiring to commit a terrorist act, among other things, is specifically brought within the fold of sub-Section (3) and is clearly covered by that sub-Section. Therefore, the learned counsel submit that the punishment as prescribed by sub-Section (3) alone could be applied even if the appellant is held guilty of the offence of conspiring to do a terrorist act with others. The question whether the conspiracy resulted in the commission of offences in order to achieve the objective of the conspirators is immaterial according to the concerned counsel. As a corollary to this argument, it is contended that Section 120B IPC, which is contained in the general law of crimes, cannot be brought into the picture so as to attract higher punishment especially in view of Section 56 of POTA, which gives overriding effect to the provisions of POTA. The learned counsel therefore submits that the maximum punishment that can be imposed is life imprisonment as per Section 3(3) of POTA.
The relevant part of Section 120B reads as follows: "120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
Thus a party to criminal conspiracy shall be punished in the same manner as if he had abetted the relevant offence i.e. an offence punishable with death, imprisonment for life etc. Mr. Gopal Subramanium then referred to the definition of 'offence' in Section 40 of IPC which in the context of Chapter VA (of which Sections 120A & 120B form part) denotes a thing punishable under the Code or under any special or local law. A special law is defined to mean a law applicable to a particular subject. POTA is one such law. Then he had taken us through Section 2(1)(i) of POTA. Sections 2(n) and 2(y) of Cr.P.C. that submit that Section 120B embraces within its fold the offences under any special law and that Section 120B can be related to the offence under Section 3(1) of POTA. According to the learned counsel, Section 120B should be applied wholly or in part pursuant to the conspiracy, if the criminal acts in the nature of terrorist acts take place. According to the learned counsel, the conspiracy contemplated by Section 3(3) of POTA should be confined only to situations where no overt acts in the direction of commission of planned offence takes place.
The final question is about the sentence whether the capital punishment awarded by the trial Court and the High Court is justified? The endeavor of the learned counsel for the State to invoke the punishment under Section 3(2) of POTA through the media of Section 120B is in our opinion a futile exercise. The argument of the learned counsel proceeds on the basis that the punishment provided in the abetment provisions of IPC, that is to say, Section 109, will be attracted. This argument is built up on the basis of the phraseology of the concluding clause of Section 120B which says "be punished in the same manner as if he had abetted such offence". Let us take it that the word 'offence' in Section 120B includes the offence under special law, namely POTA. Then, if the offence under Section 3(1) of the POTA is abetted, what is the punishment that is attracted is the point to be considered.
Undoubtedly, it is Section 3(3) of POTA which says: "whoever 'conspires' or 'abets' a terrorist act shall be punishable with imprisonment which shall not be less than five years but which may extend to imprisonment for life". Taking resort to the abetment provisions in the IPC in order to locate the punishment for conspiracy to commit terrorist act would be wholly inappropriate when the abetment of the terrorist act is made punishable under Section 3(3) of POTA itself which prescribes the minimum and maximum punishment. In other words, invocation of Section 109 IPC is wholly unwarranted when POTA itself prescribes the punishment for conspiracy as well as abetment in a single sub- section. Therefore, even if Section 120B is applied, it does not make any different as regards the quantum of punishment. In either case i.e. whether Section 120B IPC is applied or Section 3(3) of POTA is applied, the maximum sentence is life imprisonment but not death sentence. This is apart from the question whether Section 120B IPC can at all be projected into Section 3 of POTA when there is specific provision in the very same Section for the offence of conspiring to commit a terrorist act and other allied offences. The contention that it would not have been the intention of the Parliament to visit conspiracies involving terrorist acts with less severe punishment than what could be inflicted under Section 120B does not appeal to us. The other argument addressed that having regard to the setting and associated words such as 'advices', 'advocates' etc., the conspiracies of lesser magnitude, that is to say, those which were not put into action will only be covered by sub- Section (3), does not also appeal to us. There is no set pattern in which the various expressions are used in sub-Section (3) of Section 3. More serious acts as well as less serious acts involving various degrees of criminality related to terrorist acts are all encompassed in Section 3(3). They need not be uniformity in the matter of punishment in respect of all these prohibited acts. The range of punishment varies from five years to life imprisonment and depending upon the gravity of the offence, appropriate punishment could be given.
We are also not impressed by the finding of the High Court that "by reason of the words 'or thing' occurring in Section 3(1) (as a part of the clause 'does any act or thing' by using bombs, dynamite or other explosive substances or firearms etc"), the definition of a terrorist act need not be restricted to a physical act of using explosives etc. The High Court observed that the actions of Afzal in procuring explosives and chemicals and "participating in the preparation of explosives would be action amounting to doing of a thing using explosives", cannot be supported on any principle of interpretation. Moreover, it rests on a finding that the accused Afzal and Shaukat participated in the preparation of explosives for which there is no evidentiary support. Even their confession (which is now eschewed from consideration) does not say that.
The net result of the above discussion is that the conspiracy to commit terrorist acts attracts punishment under sub-Section (3) of Section 3. The accused Afzal who is found to be a party to the conspiracy is therefore liable to be punished under that provision. Having regard to the nature, potential and magnitude of the conspiracy with all the attendant consequences and the disastrous events that followed, the maximum sentence of life imprisonment is the appropriate punishment to be given to Mohd. Afzal under Section 3(3) of POTA for conspiring to commit the terrorist act. Accordingly, we convict and sentence him.
The conviction under Section 3(2) of POTA is set aside. The conviction under Section 3(5) of POTA is also set aside because there is no evidence that he is a member of a terrorist gang or a terrorist organization, once the confessional statement is excluded. Incidentally, we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organization is established.
We shall then consider whether the conviction of Afzal under Section 120B read with Section 302 IPC is justified. The High Court upheld the conviction and gave death sentence to the two appellants under this Section. We are of the view that the conviction and sentence on this count is in accordance with law. The conspiracy has many dimensions here. It is implicit in the conspiracy to attack the Parliament that it extends to all the offensive acts intimately associated with that illegal objective. Indulgence in terrorist acts, killing and injuring persons who are most likely to resist the attackers, using explosive devices, firearms and other dangerous things in the course of attack, 'waging war' against the Government of the country are all various manifestations of the conspiracy hatched by the deceased terrorists in combination with the appellant Afzal. The mere fact that no particular person is the target of attack of the conspirators, does not make any difference in regard to the applicability of Section 300 IPC. The intention to cause death or the intention of causing bodily injury as would in all probability cause death is writ large in the conspiracy directed towards the indiscriminate attack on the Parliament of the nation when it is in session. The opening clause of Section 300 says that "except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death". Clause fourthly says: "if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid" (vide clause fourthly). These clauses squarely apply to the case on hand. Illustration (d) to Section 300 is instructive. It reads thus:
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
The conspiracy to commit the offence of murder in the course of execution of conspiracy is well within the scope of conspiracy to which the accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section 302 IPC. The punishment applicable is the one prescribed under Section 109 IPC in view of the phraseology of Section 120B "be punished in the same manner as if he had abetted such offence". Section 109 IPC lays down that "if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, a person abetting the offence shall be punished with the punishment provided for the offence." Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 IPC. Either death sentence or imprisonment for life is the punishment prescribed under Section 302 IPC.
In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples' representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases.
The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting normal life of the people of India is some thing which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.
Before we go to the next provision under which the appellant is liable to be convicted, we shall deal with the contention of Mr. Shanti Bhushan, appearing for the appellant Shaukat, which becomes relevant in the case of Afzal. His arguments run as follows:
The acts committed by the deceased terrorists causing death of several security personnel by using firearms and explosives in order to gain entry into the Parliament House fall within the definition of 'terrorist act' punishable under Section 3(2) of POTA. If POTA had not been there, the offence committed by them would have been the offence of murder punishable under Section 120B read with Section 302 IPC. In view of the overriding provision contained in Section 56 of POTA, the conspiracy to commit terrorist act is punishable only under Section 3(3) of POTA. Merely because the same criminal acts also fall within the definition of murder, the accused cannot be convicted of conspiracy to commit murder under Section 120B read with Section 302 IPC in addition to Section 3(3) of POTA. The accused cannot be punished for the offence of conspiracy to cause death when he is liable to be punished for the same act of causing death under the General Penal Law. It is only the punishment provided by the appropriate provision in the special law that can be imposed on the conspirator. That provision being Section 3(3) and it provides for the maximum sentence of life imprisonment, death sentence cannot be given.
The learned counsel, apart from placing reliance on Section 56 of POTA, has also drawn our attention to Section 26 of General Clauses Act and Section 71 of IPC. His contention, though plausible it is, has no legal basis. We do not think that there is anything in Section 56 of POTA which supports his contention. That provision only ensures that the conspiracy to commit the terrorist act shall be punishable under POTA. As the appellant is being punished under that Section, irrespective of the liability to be punished under the other laws, Section 56 ceases to play its role. Then, we shall turn to Section 26 of the General Clauses Act, which lays down: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
It becomes at once clear that the emphasis is on the words 'same offence'. It is now well settled that where there are two distinct offences made up of different ingredients, the bar under Section 26 of the General Clauses Act or for that matter, the embargo under Article 20 of the Constitution, has no application, though the offences may have some overlapping features. The crucial requirement of either Article 20 of the Constitution or Section 26 of the General Clauses Act is that the offences are the same or identical in all respects. It was clarified in State of Bihar Vs. Murad Ali Khan [(1988) 4 SCC 655].
"Though Section 26 in its opening words refers to 'the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law."
We accept the argument of the learned counsel for the State Mr. Gopal Subramanium that offences under Section 302 IPC, Section 3(2) and Section 3(3) of POTA are all distinct offences and a person can be charged, tried, convicted and punished for each of them severally. The analysis of these provisions show that the ingredients of these offences are substantially different and that an offence falling within the ambit of Section 3(1) may not be squarely covered by the offence under Section 300 IPC. The same set of facts may constitute different offences. The case of State of M.P. Vs. Veereshwar Rao Agnihotri [1957 SCR 868] is illustrative of this principle. In that case, it was held that the offence of criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act is not identical in essence, import and content with an offence under Section 409 IPC. The bar to the punishment of the offender twice over for the same offence would arise only where the ingredients of both the offences are the same.
Section 71 of IPC does not in any way advance the contention of the appellant's counsel. The relevant part of Section 71 IPC reads: Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences.
The argument based on Section 71 IPC is no different from the argument advanced with reference to Section 26 of the General Clauses Act. For the same reasons, we reject this argument. The case of Zaverbhai Vs. State of Bombay [AIR 1954 SC 752] does not lay down any different principle. In fact that case is concerned with question of repugnancy of the State and Central laws.
The next question we have to answer is whether the conviction of the appellant Mohd. Afzal under Sections 121 and 121A can be sustained. This raises the question whether the acts of the deceased terrorists amount to waging or abetting or attempting to wage war punishable under Section 121 IPC and Mohd. Afzal, being a party to conspiracy to attack the Parliament House, is punishable either under Section 121 or under Section 121A or both. To answer this question, we have to explore the concept and nuances of the expression 'waging war' employed in Section 121.
(xi) Waging War
In interpreting the expression 'waging war', the Indian cases of pre- independence days, though few they are, by and large cited with approval the 18th and 19th century English authorities. The term 'wages war' was considered to be a substitute for 'levying war' in the English Statute of High Treason of 1351 i.e Statute 25, Edward III, c.2. In the famous book of Sir James F. Stephen "A History of the Criminal Law of England" (1883 publication), it was noted that the principal heads of treason as ascertained by that Statute were: (1) 'imagining'? the King's death" (2) levying war and (3) adhering to the King's enemies.
The speech of Lord Mansfield, CJ addressed to the Jury in Lord George Gordon's case (1781) is often quoted to unfold the meaning of the expression 'levying war against the King'. To quote the words of Mansfield, C.J.: "There are two kinds of levying war: one against the person of the King: to imprison, to dethrone, or to kill him; or to make him change measures, or remove counsellors : the other, which is said to be levied against the majesty of the King or, in other words, against him in his regal capacity; as when a multitude rise and assemble to attain by force and violence any object of a general public nature; that is levying war against the majesty of the King; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn Government ; and by force of arms, to restrain the King from reigning, according to law".
"No amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the king, in the sense of being armed opposition to the lawful exercise of his power".
The learned Chief Justice then referred to the observations of Lord Holt, C. J. in a case reported in Holt's reports (1688-1700) at 681-682: "Holt L. C.J. in Sir John Friend's case says, 'if persons do assemble themselves and act with force in opposition to some law which they think inconvenient, and hope thereby to get it repealed, this is a levying war and treason". "I tell you the joint opinion of us all, that, if this multitude assembled with intent, by acts or force and violence, to compel the legislature to repeal a law, it is high treason". The question always is, whether the intent is, by force and violence, to attain an object of a general and public nature, by any instruments; or by dint of their numbers".
In 1820 Lord President Hope in his summing up speech to the jury in Rex Vs. Andrew Hardie, (1820, 1 State Trials N.S., 610) explained the distinction between levying a war and committing a riot in the following words: "Gentlemen, it may be useful to say a few words on the distinction between levying war against the King and committing a riot. The distinction seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King's authority or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break into a particular prison and rescue certain persons therein confined, or to oblige the Magistrates to set them at liberty or to lower the price of provisions in a certain market, or to tear down certain enclosures, which they conceive to encroach on the town's commons. All such acts, though severely punishable, and though they may be resisted by force, do not amount to treason. Nothing is pointed against either the person or authority of the King".
"But, gentlemen, wherever the rising or insurrection has for its object a general purpose, not confined to the peculiar views and interests of the persons concerned in it, but common to the whole community, and striking directly the King's authority or that of Parliament, then it assumes the character of treason. For example, if mobs were to rise in different parts of the country to throw open all enclosures and to resist the execution of the law regarding enclosures wheresoever attempted, to pull down all prisons or Courts of justice, to resist all revenue officers in the collecting of all or any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general measure, which by law can only be authorized or prohibited by authority of the King or Parliament, amount to levying of war against the King and have always been tried and punished as treason. It is, therefore, not the numbers concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local nature".
Then in 1839, Tindal, C. J. while summing up the Jury in the trial of John Frost in the year 1839 [All ER Reprint 1835-1842 P.106 at P.117] stated that it was "essential to the making out of the charge of high treason by levying war, there must be an insurrection, there must be force accompanying that insurrection; and it must be for the accomplishment of an object of a general nature".
The following statement of law by Sir Michael Foster is instructive: "There is a difference between those insurrections which have carried the appearance of an army formed under leaders, and provided with military weapons, and with drums, colours etc., and those other disorderly tumultous assemblies which have been drawn together and conducted to purposes manifestly unlawful, but without any of the ordinary shew and apparatus of war before mentioned." "I do not think any great stress can be laid on that distinction. It is true, that in case of levying war the indictments generally charge, that the defendants were armed and arrayed in a warlike manner; and, where the case would admit of it, the other circumstances of swords, guns, drums, colours, etc., have been added. But I think the merits of the case have never turned singly on any of these circumstances".
We find copious reference to these English authorities in the Judgments of various High Courts which we will be referring to a little later and in the 'Law of Crimes' authored by Ratanlal and Dhirajlal (25th Edition). In fact, they were referred to in extenso by this Court in Nazir Khan Vs. State of Delhi [(2003) 8 SCC page 461].
Whether this exposition of law on the subject of levying war continues to be relevant in the present day and in the context of great socio-political developments that have taken place is a moot point. Our comments may be found a little later.
Coming to the Indian decisions, the earliest case in which the conviction under section 121 and 121A IPC was sustained is the decision of a Division Bench of Madras High Court in AIR 1922 Mad. 126. The accused was seen in a crowd of people which attacked the police and military forces with deadly weapons, when the forces under the supervision of the District Magistrate started searching for war-knives. The mob retreated after the police opened fire and the accused who was arrested told the mob to disperse. The accused earlier exhorted the people who attended a meeting to subvert the British Raj and establish the Khilafat Govt. and to destroy the Govt. properties. The High Court agreeing with the District Judge found him guilty under section 121, IPC while observing thus :
"We have then that the accused was taking part in an organized armed attack on the constituted authorities, that attack having for its object, in the words of his own speech, the subversion of British Raj and the establishment of another Government. That being so, we concur without hesitation in the lower Court's conclusion that the accused was guilty of the offence of waging war against the King."
The next case which is an oft-quoted authority is the decision of a special Bench of Rangoon High Court in AIR 1931 Rang 235, Page CJ speaking for the special Bench prefaced his discussion with the statement that the words "waging war in Section 121 are synonymous with 'levying war' in the Statute 25, Edward 3, clause 2 which offence is declared to be treason. After referring to the observations of Mansfield, CJ, Lord President Hope, Tindal, CJ and the commentaries of Sir Michael Foster, the High Court concluded thus : "The natural and reasonable inference to be drawn from the conduct and acts of insurgence was that they intended to overcome and destroy the forces of the Crown at all events and regardless of any pretended grievance in connection with capitation tax." The learned Judges referred to the incidents that took place in the course of preparing for an encounter with the forces of the Crown and observed that they were consistent only with an intention on the part of the insurgents to wage war against the King Emperor. The raiding of headmen's houses for guns and ammunition, the looting of stores, the drilling of the rank and file, the supply of dahs and spears and uniforms to the combatants, the enforced tattooing of certain reluctant villagers "all point to an intention to wage war and nothing else".
It was then observed that :
"a deliberate and organized attack upon the Crown forces such as that which took place on 7th January clearly would amount to a waging of war if the object of the insurgents was by armed force and violence to overcome the servants of the Crown and thereby to prevent the general collection of the capitation tax".
The incident was described as a battle which was the result of a rebellion. Those who were parties to it were held guilty of waging war within Section 121 IPC.
In the case of Maganlal Radhakrishan [AIR 1946 Nagpur 173] there was an elaborate discussion on the scope of Section 121 with reference to the old English cases on the subject of 'levying-war' and high treason. Certain decisions of Indian Courts e.g., AIR 1931 Rangoon 235 were also referred to and the following principles were culled out :
(i) No specific number of persons is necessary to constitute an offence under S.121, Penal Code.
(ii) The number concerned and the manner in which they are equipped or armed is not material.
(iii) The true criterion is quo animo did the gathering assemble?
(iv) The object of the gathering must be to attain by force and violence an object of a general public nature, thereby striking directly against the King's authority.
(v) There is no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt."
The accused in that case was found to have connections with Hindustan Red Army and to have designs for the elimination of the existing Government. Arms and explosives were found concealed in his house. He was found involved in the destruction of Police Station and shooting of a police constable. The learned Judges felt that the raid on the Maudha Station House was part of the design 'to attain by force and violence an object of a general public nature " the test laid down by Mansfield, CJ. The Nagpur High Court concluded that all this was a pre-determined plan for the overthrow of Government at a time when it was involved in a world-wide conflict. The conviction of Maganlal under section 121 was thus upheld.
The decision of a Division Bench of Patna High Court in AIR 1951 Patna 60 (Mir Hasan Khan vs. the State) is illustrative of what acts do not constitute waging of war. That was a case in which there was a mutiny among certain sections of the Police forces on account of the indignation aroused by the punishment given to one of their colleagues. The conviction under section 121, IPC was mainly based on the fact that the accused were among those who took possession of the armory and also took part in the resistance which was put up to the troops. The conviction was set aside and the following pertinent observations were made by Shearer, J. "The expression "waging war" means & can, I think, only mean "waging war in the manner usual in war". In other words, in order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury & have, when called upon to surrender it, used the rifles & ammunition so obtained against the King's troops. It must also be shown that the seizure of the armoury was part & parcel of a planned operation & that their intention in resisting the troops of the King was to overwhelm & defeat these troops & then to go on & crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Govt. or until those in possession of it yielded to the demands of their leaders".
Support was drawn from the Digest of Criminal Law by Sir James Stephens. In the Digest, one of the meanings given to the expression to levy-war is : "attacking in the manner usual in war the King himself or his military forces, acting as such by his orders, in the execution of their duty." It was concluded "it is, I think, quite impossible to say that any of these appellants waged-war in the sense in which that expression, as it occurs in Section 121, Penal Code, was used". "The appellants or some of them were in possession of the armory at Gaya for several days and it is perfectly clear that they never intended to use it as a base for further operations". The next question is whether the dare devil and horrendous acts perpetrated by the slain terrorists pursuant to the conspiracy, amount to waging or attempting to wage war punishable under Section 121 IPC and whether the conspirators are liable to be punished under Section 121 or 121A or both.
Section 121 and 121A occur in the Chapter 'Offences against the State'. The public peace is disturbed and the normal channels of Government are disrupted by such offences which are aimed at subverting the authority of the Government or paralyzing the constitutional machinery. The expression 'war' preceded by the verb 'wages' admits of many shades of meaning and defies a definition with exactitude though it appeared to be an unambiguous phraseology to the Indian Law Commissioners who examined the draft Penal Code in 1847. The Law Commissioners observed:
"We conceive the term 'wages war against the Government' naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous."
The expression 'Government of India' was substituted for the expression 'Queen' by the Adaptation of Laws Order of 1950. Section 121 now reads "Whoever wages war against the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with death or imprisonment for life and shall also be liable to fine".
The conspiracy to commit offences punishable under Section 121 attracts punishment under Section 121A and the maximum sentence could be imprisonment for life. The other limb of Section 121A is the conspiracy to overawe by means of criminal force or the show of criminal force, the Central Government or any State Government. The explanation to Section 121-A clarifies that it is not necessary that any act or illegal omission should take place pursuant to the conspiracy, in order to constitute the said offence. War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war imbedded in Section 121 is not to be understood in international law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that 'war' contemplated by Section 121 is not conventional warfare between two nations. Organizing or joining an insurrection against the Government of India is also a form of war.
'Insurrection' as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. "Rebellion, revolution and civil war are progressive stages in the development of civil unrest the most rudimentary form of which is 'insurrection' vide Pan American World Air Inc. Vs. Actna Cas & Sur Co. [505, F.R. 2d, 989 at P. 1017]. An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression 'war' and it is seen from the old English authorities referred to supra that it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or Government.
It has been aptly said by Sir J.F. Stephen "unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which run into each other and not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is, in each of the cases mentioned, disturbed either by actual force or at least by the show and threat of it".
To this list has to be added 'terrorist acts' which are so conspicuous now- a-days. Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. According to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
It is seen that the first limb of Section 3(1) of POTA "with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever" and the act of waging war have overlapping features. However, the degree of animus or intent and the magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section, 121A.
It needs to be noticed that even in international law sphere, there is no standard definition of war. Prof. L.Oppenheim in his well-known treatise on International Law has given a definition marked by brevity and choice of words. The learned author said: "war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases". Yoram Dinstein an expert in international law field analyzed the said definition in the following words:
"There are four major constituent elements in Oppenheim's view of War: (i) there has to be a contention between at least two States (ii) the use of the armed forces of those States is required, (iii) the purpose must be overpowering the enemy ( as well as the imposition of peace on the victor's terms); and it may be implied, particularly from the words 'each other' and (iv) both parties are expected to have symmetrical, although diametrically opposed, goals."
The learned author commented that Oppenheim was entirely right in excluding civil wars from his definition. Mr. Dinstein attempted the definition of 'war' in the following terms:
"War is a hostile interaction between two or more States, either in a technical or in a material sense. War in the technical sense is a formal status produced by a declaration of war. War in the material sense is generated by actual use of armed force, which must be comprehensive on the part of at least one party to the conflict."
In international law, we have the allied concepts of undeclared war, limited war, war-like situation the nuances of which it is not necessary to unravel.
There is no doubt that the offence of waging war was inserted in the Indian Penal Code to accord with the concept of levying war in the English Statutes of treason, the first of which dates back to 1351 A.D. It has been said so in almost all the Indian High Courts' decisions of the pre-independence days starting with AIR 1931 Rangoon 235. In Nazir Khan's case [2003 (8) SCC 461] this Court said so in specific terms in paragraph 35 and extensively quoted from the passages in old English cases. Sir Michael Foster's discourses on treason and the passages from the decisions of the High courts referred to therein are also found in Ratanlal's Law of Crimes. We should, therefore, understand the expression "wages war" occurring in Section 121 broadly in the same sense in which it was understood in England while dealing with the corresponding expression in the Treason Statute. However, we have to view the expression with the eyes of the people of free India and we must modulate and restrict the scope of observations too broadly made in the vintage decisions so as to be in keeping with the democratic spirit and the contemporary conditions associated with the working of our democracy. The oft-repeated phrase 'to attain the object of general public nature' coined by Mansfield, LCJ and reiterated in various English and Indian decisions should not be unduly elongated in the present day context.
On the analysis of the various passages found in the cases and commentaries referred to above, what are the high-lights we come across? The most important is the intention or purpose behind the defiance or rising against the Government. As said by Foster, "The true criterion is quo animo did the parties assemble"? In other words the intention and purpose of the war-like operations directed against the Governmental machinery is an important criterion. If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in contra-distinction to a private and a particular purpose, that is an important indicia of waging war. Of course, the purpose must be intended to be achieved by use of force and arms and by defiance of Government troops or armed personnel deployed to maintain public tranquility. Though the modus operandi of preparing for the offensive against the Government may be quite akin to the preparation in a regular war, it is often said that the number of force, the manner in which they are arrayed, armed or equipped is immaterial. Even a limited number of persons who carry powerful explosives and missiles without regard to their own safety can cause more devastating damage than a large group of persons armed with ordinary weapons or fire arms. Then, the other settled proposition is that there need not be the pomp and pageantry usually associated with war such as the offenders forming themselves in battle-line and arraying in a war like manner. Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to attain a commanding position by which terms could be dictated to the Government might very well be an act of waging war.
While these are the acceptable criteria of waging war, we must dissociate ourselves from the old English and Indian authorities to the extent that they lay down a too general test of attainment of an object of general public nature or a political object. We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. The Court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political objectives. The moment it is found that the object sought to be attained is of general public nature or has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression 'waging war' should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression 'waging war' irrespective of how it was viewed in the long long past. An organized movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern day perspectives and standards. Another aspect on which a clarification is called for is in regard to the observation made in the old decisions that "neither the number engaged nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R Vs. Hardie in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan Vs. Emperor [AIR 1946 Nagpur 173 at page 186]. But, in our view, these are not irrelevant factors. They will certainly help the Court in forming an idea whether the intention and design to wage war against the established Government exists or the offence falls short of it. For instance, the fire power or the devastating potential of the arms and explosives that may be carried by a group of persons may be large or small, as in the present case, and the scale of violence that follows may at times become useful indicators of the nature and dimension of the action resorted to. These, coupled with the other factors, may give rise to an inference of waging war.
The single most important factor which impels us to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battle-front selected was the Parliament House Complex. The target chosen was the Parliament a symbol of sovereignty of the Indian republic. Comprised of peoples' representatives, this supreme law-making body steers the destinies of vast multitude of Indian people. It is a constitutional repository of sovereign power that collectively belongs to the people of India. The executive Government through the Council of Ministers is accountable to Parliament. Parliamentary democracy is a basic and inalienable feature of the Constitution. Entering the Parliament House with sophisticated arms and powerful explosives with a view to lay a siege of that building at a time when members of Parliament, members of Council of Ministers, high officials and dignitaries of the Government of India gathered to transact Parliamentary business, with the obvious idea of imperilling their safety and destabilizing the functioning of Government and in that process, venturing to engage the security forces guarding the Parliament in armed combat, amounts by all reasonable perceptions of law and common sense, to waging war against the Government. The whole of this well planned operation is to strike directly at the sovereign authority and integrity of our Republic of which the Government of India is an integral component. The attempted attack on the Parliament is an undoubted invasion of the sovereign attribute of the State including the Government of India which is its alter ego. The attack of this nature cannot be viewed on the same footing as a terrorist attack on some public office building or an incident resulting in the breach of public tranquility. The deceased terrorists were roused and impelled to action by a strong anti-Indian feeling as the writings on the fake Home Ministry sticker found on the car (Ext. PW 1/8) reveals. The huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorists who were to indulge in 'Fidayeen' operations with a definite purpose in view, is a clear indicator of the grave danger in store for the inmates of the House. The planned operations if executed, would have spelt disaster to the whole nation. A war-like situation lingering for days or weeks would have prevailed. Such offensive acts of unimaginable description and devastation would have posed a challenge to the Government and the democratic institutions for the protection of which the Government of the day stands. To underestimate it as a mere desperate act of a small group of persons who were sure to meet death, is to ignore the obvious realities and to stultify the wider connotation of the expression of 'war' chosen by the drafters of IPC. The target, the obvious objective which has political and public dimensions and the modus operandi adopted by the hard-core 'Fidayeens' are all demonstrative of the intention of launching a war against the Government of India. We need not assess the chances of success of such an operation to judge the nature of criminality. We are not impressed by the argument that the five slain terrorists ought not to be 'exalted' to the status of warriors participating in a war. Nor do we endorse the argument of the learned senior counsel Mr. Sushil Kumar that in order to give rise to the offence of waging war, the avowed purpose and design of the offence should be to substitute another authority for the Government of India. According to learned counsel, the deprivation of sovereignty should be the pervading aim of the accused in order to bring the offence under Section 121 and that is lacking in the present case. We find no force in this contention. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the nation and its Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not in our view detract from the offence of waging war. There is no warrant for such truncated interpretation.
The learned senior counsel Mr. Ram Jethmalani also contended that terrorism and war are incompatible with each other. War is normative in the sense that rules of war governed by international conventions are observed whereas terrorism is lawless, according to the learned counsel. This contention presupposes that the terrorist attacks directed against the institutions and the machinery of the Government can never assume the character of war. The argument is also based on the assumption that the expression 'war' in Section 121 does not mean anything other than war in the strict sense as known in international circles i.e. organized violence among sovereign States by means of military operations. We find no warrant for any of these assumptions and the argument built up on the basis of these assumptions cannot be upheld. In the preceding paras, we have already clarified that concept of war in Section 121 which includes insurrection or a civilian uprising should not be understood in the sense of conventional war between two nations or sovereign entities. The normative phenomenon of war as understood in international sense does not fit into the ambit and reach of Section 121.
The learned senior counsel Mr. Ram Jethmalani argued that in a case of war, the primary and intended target must be combatants as distinguished from civilians, though the latter may be incidentally killed or injured and that feature is lacking in the present case. This contention, though plausible it is, does not merit acceptance. When an attack on the Parliament was planned, the executors of this plan should have envisaged that they will encounter resistance from the police and other armed security personnel deployed on duty fairly in large numbers at the Parliament complex. The slain terrorists and other conspirators should have necessarily aimed at overpowering or killing the armed personnel who would naturally come in their way. Inflicting casualties on the police and security personnel on duty as well as civilians if necessary would have been part of the design and planning of these hard-core terrorists and the criminal conspirators. It is not necessary that in order to constitute the offence of waging war, military or other forces should have been the direct target of attack. There is no such hard and fast rule and nothing was said to that effect in the long line of cases referred to supra. The act laying siege of Parliament House or such other act of grave consequences to the Government and the people is much more reflective of the intention to wage war rather than an attack launched against a battalion of armed men guarding the border or vital installations.
Another point urged by Mr. Ram Jethmalani is that no violence or even military operations can become war unless it is formally declared to be such by the Central Government. So long as the Government does not formally declare an operation to be war, it is contended that a state of peace is supposed to exist however badly it may be disturbed. It is further contended that the participants in the war are to be treated as the prisoners of war and they are not amenable to the jurisdiction of domestic criminal Courts. It is pointed out that the Hague convention and other international covenants which are embodied in Schedule III of the Geneva Convention Act, 1960 lay down the rules as to who the prisoners of war are and how they should be treated. In substance, it is contended that Section 121 IPC cannot be invoked against the participants in an undeclared 'war'. These arguments proceed on the assumption that the expression 'war' occurring in the Penal Code is almost synonymous with war in international law sense. The question of formal declaration of war by the Government would only arise in a case of outbreak of armed conflict with another country or a political group having the support of another nation. It may be, in a case of civil war and a rebellion spreading through the length and breadth of the country, the Government will have to control it on war footing and it might even consider it expedient to declare that a state of war exists, but, this theoretical possibility cannot be a guiding factor in construing the expression 'waging war' in Section 121 especially when there is no legal provision mandating the Government to make such declaration. It was next contended that foreign nationals who intrude into the territory of India and do not owe even temporary allegiance to the Government of India cannot be charged of the offence of waging war. In other words, the contention is that a person who is not a citizen nor a resident alien cannot be accused of high treason. The decisions of House of Lords in Joys vs. DPP [1946 All ER page 186] and of Privy Council in Lodewyk Johannes vs. AG of Natal [1907 AC 326] have been referred to. The dicta in Anthony Crammer Vs. USA [325 US pages 1-77] and in the case of United States vs. Villato [1797 CC Pennsylvania Page 419] have also been referred to in support of his proposition. The learned counsel has also placed reliance on Sec. 13 of the 2nd Report of the Law Commissioners on the Indian Penal Code, the excerpts of which are given in Nazir Khan's case [(2003) 8 SCC 461 at 486]. The Law Commissioners observed thus:
"The law of a particular nation or country cannot be applied to any persons but such as owe allegiance to the Government of the country, which allegiance is either perpetual, as in the case of a subject by birth or naturalization &c. or temporary, as in the case of a foreigner residing in the country. They are applicable of course to all such as thus owe allegiance to the Government, whether as subjects or foreigners, excepting as excepted by reservations or limitations which are parts of the law in question."
We find it difficult to sustain the argument of learned Senior Counsel. The word 'whoever' is a word of broad import. Advisedly such language was used departing from the observations made in the context of Treason statute. We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government. We do not have the full text of the Law Commissioners' Report and we are not in a position to know whether the Law Commissioners or the drafters of Indian Penal Code wanted to exclude from the ambit of Section 121 the unauthorized foreigners sneaking into Indian territory to undertake war like operations against the Government. Moreover, we have no material before us to hold that the views of Law Commissioners on this aspect, were accepted. Those views, assuming that they are clearly discernible from the extracted passage, need not be the sole guiding factor to construe the expression 'waging war'. Though the above observations were noticed in Nazir Khan's case, the ultimate decision in the case shows that the guilt of the accused was not judged from that standpoint. On the other hand, the conviction of foreigners (Pakistani militants) was upheld in that case.
Another contention advanced by the learned counsel is that war including civil war must have a representative character and the persons participating in the war should represent a political entity, which has the objective of overthrowing the Government and securing the sovereign status. This contention too has no force in view of what we have said above regarding the scope and ambit of the expression 'war'.
Thus, the criminal acts done by the deceased terrorists in order to capture the Parliament House is an act that amounts to waging or attempting to wage war. The conspiracy to commit either the offence of waging war or attempting to wage war or abetting the waging of war is punishable under Section 121A IPC with the maximum sentence of imprisonment for life. In the circumstances of the case, the imposition of maximum sentence is called for and the High Court is justified in holding the appellant Afzal guilty under Section 121A IPC and sentencing him to life imprisonment. In addition, the High Court has also held the appellant guilty of the offence under Section 121 IPC itself on the premise that he abetted the waging of war. The sentence of life imprisonment imposed by the trial Court was enhanced to death sentence by the High Court. We feel that the conclusion reached by the High Court both in regard to the applicability of Section 121 IPC and the punishment, is correct and needs no interference. The High Court observed: "if not acts of waging war, what they did would certainly be acts of abetting the waging of war". In this connection, we may clarify that the expression 'abetment' shall not be construed to be an act of instigating the other conspirators (i.e. the deceased terrorists). There is another shade of meaning to 'abetment' given in Section 107 IPC. It is clause secondly of Section 107 which is attracted in the case of Afzal. We quote the relevant portion of Section 107 IPC, which reads as follows:
107. A person abets the doing of a thing Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;
As criminal acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy, shall be deemed to have abetted the offence. In fact, he took active part in a series of steps taken to pursue the objective of conspiracy. The offence of abetting the waging of war, having regard to the extraordinary facts and circumstances of this case, justifies the imposition of capital punishment and therefore the judgment of the High Court in regard to the conviction and sentence of Afzal under Section 121 IPC shall stand. The trial Court as well as the High Court also convicted the appellant Afzal under Section 3 of Explosive Substances Act (for short 'E.S. Act') and sentenced him to life imprisonment and to pay a fine of Rs.25000/-. Under Section 4 of E.S. Act, he was sentenced to 20 years R.I. and to pay a fine of Rs.25000/-.
We are of the view that Clause (a) of Section 4 of E.S.Act is attracted in the instant case and the appellant Afzal is liable to be punished under the first part of the punishment provision. The relevant part of Section 4 of E.S. Act is as follows:
4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or (emphasis supplied)
(b) shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
The expression 'explosive substance' according to Section 2(a) shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance.
The planned attack on the Parliament House, by the use of explosives and fire power, was evidently a part of the conspiracy to which Afzal was a party. The preparation of explosives meant to be used by terrorists (co- conspirators) in the course of the planned attack of the Parliament House was well within the knowledge of Afzal. He, in fact, procured the materials i.e. chemicals etc., for facilitating the preparation of explosive substances at the hideouts. This is what the evidence on record clearly points out. He is, therefore, liable to punished under clause (a) read with (i) of Section 4 of POTA and accordingly he shall be sentenced to the maximum sentence of imprisonment for life and a fine of Rs.10000/-, in default of which, he shall undergo R.I. for six months.
However, the conviction under Section 3 of the Explosive Substances Act is set aside as we are of the view that the ingredients of the said Section are not satisfied in order to find Afzal guilty under that Section.
Thus, Afzal will have life sentence on three counts. However, as he is sentenced to death, the sentence of life imprisonment will naturally get merged into the death sentence.
The appeal of Afzal is accordingly dismissed, subject to the setting aside of convictions under Section 3(2) of POTA and Section 3 of Explosive Substances Act.
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