Delhi High Court
Mohd. Afzal Kumhar & Another vs State on 13 April, 2009
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+
CRIMINAL APPEAL NO. 811 OF 2007
% Date of Decision: 13th April,2009
# MOHD.AFZAL KUMHAR & ANOTHER. ...Appellants
! Through: Ms. Kamini Jaiswal,
Advocate for appellant Nos. 1 & 2
Mr. Maninder Singh and Mr.
Sanjeev Kumar, Advocates for other
appellants
versus
$ STATE ...Respondent
^ Through: Mr. Sunil Sharma, APP for
State .
WITH
+ CRIMINAL APPEAL NO. 89 OF 2008
#
BILAL AHMED MIR ...Appellant
! Through: Mr. Maninder Singh and
Mr. Sanjeev Kumar, Advocates
versus
$ STATE ...Respondent
^ Through: Mr.M.N. Dudeja, APP
AND
+ CRIMINAL APPEAL NO. 90 OF 2008
#
ANSAR AHMED DAR ...Appellant
! Through: Mr. Maninder Singh and
Mr. Sanjeev Kumar, Advocates
versus
$ STATE ...Respondent
^ Through: Mr.M.N. Dudeja, APP
CORAM:
* HON'BLE MR. JUSTICE B.N. CHATURVEDI
HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?
JUDGMENT
P.K.BHASIN, J:
13th December, 2001 witnessed a terrorist attack on the
Indian Parliament. The objective of the terrorists, who belonged to
a militant organization called ‗JKLF', behind that attack was to
capture the Parliament House. The brave security personnel posted
there, however, had not only succeeded in saving the Parliament
House from being captured and the Members of Parliament, who
were inside, from being killed or held as hostages but also
managed to kill all the terrorists who had launched the attack
there. During that operation some of the security personnel also
Crl. A. Nos. 811/2007,
lost their lives while fighting for the honour of the country. The
terrorists who have been causing havoc in different parts of the
country could not take their defeat lying down and decided to
commit more panic and fear in the Capital city by causing loss of
human lives and mass devastation of properties by exploding
bombs on the occasion of Republic Day which was to be celebrated
on 26th January,2002. However, this time the intelligence agencies
could catch hold of the terrorists belonging to another militant
organization called Lashkar-e-Toiba(LeT) who had come from
Kashmir for committing acts of terrorism in Delhi before they could
convert their nefarious design into reality. On being apprehended
by the police alongwith huge quantity of RDX and other explosive
material and lacs of rupees in cash meant for being utilized for the
said purpose they were prosecuted and tried for various offences
and finally were convicted and now these appeals have been filed
by four accused persons who have been convicted by the
Designated Court under the Prevention of Terrorism Act,
2002(POTA) vide judgment dated 30th October, 2007 for their
having committed various offences including that of hatching a
conspiracy to wage war against the Government of India. These
Crl. A. Nos. 811/2007,
four accused persons were charge-sheeted alongwith three other
persons out of whom one Mehboob Karim Merchant was
discharged by the Designated Court while in respect of accused
Rajesh Bhai Prajapati the Designated Judge passed an order on
29-04-2005, when the case was at the stage of final arguments,
for deleting his name from the array of accused persons in view of
the decision of the POTA Review Committee exonerating him of
the offence under POTA for which only he was being tried. In
respect of accused Dilip Tribhuvan Das Barot, who was also being
tried for an offence under POTA only, the Designated Court passed
an order of his acquittal on 31-08-2005 since he had also been
exonerated in the meanwhile by the POTA Review Committee.
Thereafter, the trial of the four appellants continued and finally
ended in their conviction. Hence, these appeals came to be filed
and since the same arise out of a common judgment of the trial
Court they are being disposed of by us by a common judgment.
2. The foundational facts of the prosecution case are described
in the charges framed by the trial Court against the six accused and
so at the outset we deem it appropriate to re-produce those
Crl. A. Nos. 811/2007,
charges. Against accused-appellant Mohd. Afzal Kumhar(appellant
no.1 in Crl.A. No. 811 of 2007) the following charges were
framed:-
―1. That on 14.1.02, at about 8 p.m., near Kotla Mubarakpur,
Karan Hostel, H.No. 1804/2, Room No. 3, Parsadi Gali, were
found in possession of 2.280 kgs. of RDX/PETN capable of mass
destruction, two live electronic detonators and Hawala amount
of Rs. 5 lakhs, for the purpose of terrorist activities and thereby
you committed an offence u/s 4(b) POTA 2002.
2. Secondly, that you disclosed in your confessional
statement recorded u/s 32 POTA being member of Lashkar-e-
Tayyaba(LeT), a militant organization declared as such under
POTA and listed in schedule and having come to Delhi to fix
explosives in Republic Day parade and you were found in
possession of 2.280 kgs. RDX/PETN and two electronic
detonators capable of causing mass destruction and thereby you
committed offence u/s 3(b) of POTA and sec. 3(5) of POTA and
sec. 20 of POTA.
3. Thirdly that in the company of your co-accused, you
received hawala money of Rs.28.25 lakhs from accused No. 5 at
the instructions of accused No. 6, who had received further
instructions from terrorist organizations, knowing fully well that
this amount be utilized for the purposes of terrorism and thereby
you committed offence u/s 22(3)(5) of POTA.
4. Fourthly, that by possessing the aforesaid quantity of
RDX/PETN without any legal authority and licence, and
maliciously capable of endangering life and causing serious
injuries to persons and property in India and thereby you
committed an offence u/s 4(b) and Sec.5 of Explosives
Substance Act, within the cognizance of this court.‖
Accused-appellant Adil Nazir Keen (who is appellant no.2 in
Crl.A. No. 811 of 2007) wa also similarly charged as under:-
―1. That on 14.1.02 at about 8 p.m. near Kotla Mubarakpur,
Karan Hostel H.No. 1804/2, Room No. 3, Parsadi Gali, were
Crl. A. Nos. 811/2007,
found in possession of 2 kgs. RDX/PETN capable of mass
destruction, two live electronic detonators and hawala amount
of Rs. 5 lakhs, for the purpose of terrorist activities and thereby
you committed an offence u/s 4(b) POTA 2002.
2. Secondly, that you disclosed in your confessional
statement recorded u/s 32 POTA being member of Lashkar-e-
Tayyaba (LeT), a militant organization declared as such under
POTA and listed in schedule and having come to Delhi to fix
explosives in Republic Day Parade and you were found in
possession of 2 kgs. RDX/PETN and two electronic detonators,
capable of causing mass destruction and thereby you
committed offence u/s 3(b) of POTA and Sec. 3(5) and Sec. 20
of POTA.
3. Thirdly, that in the company of your co-accused, you
received hawala money of Rs. 28.25 lakhs from accused No. 5
at the instructions of accused No. 6, who had received further
instructions from terrorist organizations, knowing fully well that
this amount shall be utilized for the purposes of terrorism and
thereby you committed offence u/s 22(3)(5) of POTA.
4. Fourthly, that by possessing the aforesaid quantity of
RDX/PETN, without any legal authority and licence and
maliciously, capable of endangering life and causing serious
injuries to persons and property in India and thereby you
committed an offence u/s 4(b) and Sec. 5 of Explosive
Substances Act, within the cognizance of this court.‖
Against the accused-appellants Bilal Ahmed Mir(appellant
in Crl.A.No. 89 of 2008) and Ansar Ahmed Dar(appellant in Crl.
A.No. 90 of 2008) the following common charges were framed:-
―1. That on 14.1.02, at about 8 p.m., near Kotla Mubarakpur,
from inside room No. 3 of Karan Hostel, both of you were found
in possession of 3.9 kgs. of RDX/PETN, capable of mass
destruction and Rs.24.9 lakhs of hawala money and thereby you
both committed an offence punishable u/s 4(b) of POTA.
2. Secondly that you both were the members of Lashkare-e-
Crl. A. Nos. 811/2007,
Tayyaba(LeT) a militant organization declared as such under
POTA and listed in schedule and were in possession of explosive
substantial of mass destruction and thereby you both committed
offence u/s 3(b), 3(5) and 20 of POTA, within the cognizance of
this court.
3. And thirdly, by possessing the aforesaid quantity of
RDX/PETN, without any legal authority and licence and
maliciously, capable of endangering life and causing serious
injury to persons and property in India and thereby you both
committed offence u/s 4(b) and Sec.5 of Explosives Substances
Act, within the cognizance of this Court.‖
Then, the following common charge was framed against
accused-appellants Mohd. Afzal Kumhar, Ansar Ahmad Dar, Bilal
Ahmed Mir and Adil Nazir Keen:-
―That you all collected 8.18 kgs. RDX/PETN, capable of mass
destruction and 34.9 lakhs hawala money and conspired to
overawe by means of criminal force, the Govt. of India and
thereby you all committed offence u/s 121-A IPC and u/s 122
IPC, within the cognizance of this Court.‖
Against accused Dilip Tribhuvandas Barot @ Dalip Bhai and
Rajesh Khoda Bhai Prajapati @ Raju Bhai, in respect whom the
proceedings came to be terminated in the midst of the trial
because of the decision of the POTA Review Committee, the
following charge had been framed:-
―That you both knowing fully well that accused Mohd.
Kumhar, Ansar Ahmed Dar, Bilal Ahmed Mir and Adil Nazir Keen
Crl. A. Nos. 811/2007,
were terrorists and members of Lashkar-e-Tayyaba(LeT), a
militant organization, declared as such and listed under POTA,
provided them hawala amount of Rs.28.25 lakhs, having
reasons to believe that it would be used for the purpose of
terrorism and thereby you both committed offences u/s 22(2)(5)
POTA, within the cognizance of this court.‖
3. From these charges framed against the accused persons and
a glance through the charge-sheet and the accompanying material
submitted in Court after investigation it becomes clear that the
prosecution case is that sometime in the last week of December
2001, some information was received by the Indian Intelligence
Agencies that some militants belonging to a banned militant
organization by the name of Lashkar-e-Toiba(LeT) had come to
Delhi and were collecting huge quantity of explosives for being
used to spread terror in the capital city of Delhi. Thereafter on
14/01/02, a specific input was received by the Intelligence
Agencies that some Kashmiri boys having links with LeT were
staying in a room in Karan Hostel in Kotla Mubarakpur and had
collected explosive material for spreading terror in Delhi by
exploding bombs during Republic Day celebrations. On receipt of
that information a raid team under the leadership of PW-19
Inspector Mohan Chand Sharma was formed on 14/1/02 itself
Crl. A. Nos. 811/2007,
and at about 1.15 p.m. the raid team members left for Karan
Hostel and reached there at 1.30 p.m. On secret enquiries made
in that area it was confirmed that three Kashmiri boys had come
few days ago were staying with one Bilal Ahmad Mir in room no. 3
in that Hostel. It was also informed that at that time only Bilal
Ahmad Mir and one other boy were present in the room and their
other two companions had gone out somewhere. Thereafter, the
raid team leader decided to wait for the other two boys also to
reach there before starting their raid operation. In the meanwhile
the owner of Karan Hostel PW-15 Ram Kumar had also been
contacted and he also confirmed that one Bilal Ahmad Mir with
three others was staying in his Hostel. PW-15 Ram Kumar was also
joined in the raid operation as an independent witness since he
knew the boys. At about 8 p.m. two boys were seen coming
towards Karan Hostel and they were identified by Ram Kumar as
the boys who were staying with Bilal. The police then apprehended
them at the hostel gate itself. Their names were found to be
Mohd. Afzal Kumhar and Adil Nazir Keen. At that time both of
them were carrying separate bags with them. Thereafter, the
raid team went to room no.3 of the Karan Hostel where the bag
Crl. A. Nos. 811/2007,
which in the hand of Mohd. Afzal Kumhar was checked and was
found containing a polythene bag on which ‗Mission Kashmir' was
written and in that polythene bag 2.280 Kgs. of RDX and Indian
currency to the tune of Rs.5 lakhs and two electronic detonators
with wires were recovered. The bag in the hand of Adil Nazir Keen
was also checked and was found containing RDX weighing 2 Kgs.
and rupees five lakhs in cash and two electronic detonators with
wires.
4. In room no.3 accused-appellants Bilal Ahmed Mir and Ansar
Ahmed Dar were found present when the raid team had gone there
with Mohd. Afzal Kumhar and Adil Nazir Keen. They were also
apprehended and interrogated and it is also the case of the
prosecution that on being informed by accused Bilal Ahmed Mir
and Ansar Ahmed Dar during their interrogation the police officials
recovered two bags lying under the beds in that room no. 3 and in
one of those bags cash amount of Rs. 14 lakhs and explosive
material weighing 3.900 kgs. were found. In the other bag cash
amount of 10.90 lakhs was found. From the explosive material
recovered from the possession of accused Mohd. Afzal Kumhar and
Crl. A. Nos. 811/2007,
Adil Nazir Keen two separate samples of 10 gms. each of that
explosive material were taken and sealed and marked as S-1 & 2
and four detonators with wires were also sealed in two separate
parcels marked as D-1 & 2 for being sent to Central Forensic
Scientific Laboratory(CFSL). Seizure Memo Ex.PW-8/A in respect of
the recoveries from these two accused was prepared at the spot.
The remaining quantity of the explosive material was also sealed in
separate parcels. From the explosive material recovered at the
instance of Bilal Ahmed Mir and Ansar Ahmed Dar also separate
packet of 10 gms. was prepared and sealed as sample and
marked as S-3 for being sent to CFSL for confirmation that the
same was explosive material. Rest of the material was also
separately sealed. The recovered currency notes, totaling Rs.34.90
lakhs were also taken into police possession. From that room one
mobile phone was also seized. In view of the said recoveries of
huge quantity of explosive material and cash from the possession
of these four accused persons a case under Sections 121/121-
A/122/123 IPC and under Sections 4/5 of the Explosive
Substances Act, 1908 was registered at Kotla Mubarakpur police
station vide FIR No.18/02. On 15/01/02 the offences punishable
Crl. A. Nos. 811/2007,
under Sections 3/4/5/21/22 of the Prevention of
Terrorism(Second) Ordinance, 2001(POTO) were also invoked and
the investigation thereafter was taken over by an Assistant
Commissioner of Police, PW-18 Rajbir Singh.
5. Pursuant to the information given by accused Mohd. Afzal
Kumhar the police arrested one Dilip Tribhuvandas Barot @ Dilip
Bhai, who was allegedly a hawala operator, and then pursuant to
his disclosure two more hawala operators, Rajesh Khoda Bhai
Prajapati @ Raju Bhai and Mehboob Karim Merchant were also
arrested. As per the prosecution case all these three persons used
to provide money to the terrorists for terrorist activities through, as
is commonly known in the criminal world, hawala channels.
According to the further prosecution case, all these seven accused
persons were involved in a criminal conspiracy to commit various
offences including the offence of waging war against the
Government of India.
6. During the course of investigation accused Mohd. Afzal
Kumhar and Abdul Nazir Keen had shown their willingness to the
Crl. A. Nos. 811/2007,
investigating officer ACP Rajbir Singh to make confessional
statements and accordingly their confessions were recorded by
PW-1 Shri Balaji Srivastava, Deputy Commissioner of Police, Spl.
Branch & Spl. Cell, under Section 32 of the POTO on 24-01-2002.
Accused Bilal Ahmed and Ansar Ahmed Dar had also at one time
shown their willingness to make confessional statements but when
produced before the DCP they changed their minds and did not
make any confessional statements. In the confessional statements
made by the other two accused they admitted, inter-alia, that they
had come to Delhi from Kashmir on 30/12/01 to create panic in
Delhi on the occasion of Republic Day celebrations by exploding
bombs on the route of Republic Day Parade for which purpose they
had collected RDX etc. On 25/01/02 both these accused were
produced before PW-5 Shri V.K.Maheshwari, Addl.Chief
Metropolitan Magistrate, New Delhi as required under Section
32(4) & (5) of POTO and before him they admitted having made
the statements before the DCP voluntarily and without any
coercion from any quarter. The ACMM then recorded the
statements of accused Mohd. Afzal Kumhar and Adil Nazir Keen to
that effect(Ex. PW-5/B and Ex.PW-5/C respectively).
Crl. A. Nos. 811/2007,
7. It is also the prosecution case that the samples of the
explosive material recovered on 14/01/02 from accused Mohd.
Afzal Kumhar and Adil Nazir Keen was sent to CFSL on 25/01/02
and when examined at CFSL, New Delhi it was confirmed the
presence in the brown coloured putty like material of ―RDX‖,
―PETN‖ and ―AMMONIUM NITRATE‖ and the four detonators which
were recovered from the possession of accused persons were also
examined by the scientists at the CFSL and the result of the
examination was that the same were ‗live' ones and the same with
the said explosive material could form the components of
‗Improvised Explosive Device'(IED) and so were ‗explosive
substance' as defined in the Explosive Substances Act, 1908. The
other sample of explosive material recovered from room no.3 of
Karan Hostel at the instance of accused Bilal Ahmed Mir and Ansar
Ahmed Dar was also examined at CFSL and the opinion of the
expert was that the Physico-Chemical examination confirmed the
presence of Potassium Chlorate which could also form a
component of Improvised Explosive Device. During the
investigation it was found that the Motorola mobile phone, Ex.P-22,
Crl. A. Nos. 811/2007,
which was also recovered from room no.3 of Karan Hostel on
14/01/02 had been purchased by accused Adil Nazir Keen on
06/01/02. Its number was 98113-36055.
8. On the completion of investigation, requisite sanctions under
the Code of Criminal Procedure, Explosive Substances Act,1908
and POTO were obtained by the investigating agency and then
charge-sheet was submitted in the Designated Court on 28/03/02
against seven accused persons. One accused was discharged at the
charge stage while the remaining six accused were charged on
20/04/02 for the commission of various offences as noticed
already. The accused had pleaded not guilty and claimed to be
tried. The prosecution then examined nineteen witnesses to
establish its case and during their evidence several documents
were also exhibited. The main defence plea of accused Mohd. Afzal
Kumhar, Adil Nazir Keen, Ansar Ahmed Dar and Bilal Ahmed Mir,
who are now the appellants before us, was that they had, in fact,
been lifted by the police from Karan Hostel on 2nd January, 2002
and were thereafter kept in illegal confinement till 15th
January,2002 and then booked for the present case and the so-
Crl. A. Nos. 811/2007,
called recoveries were planted ones. Accused Bilal Ahmed Mir had
claimed that he was living in Karan Hostel from December, 1998
till June, 2001 and then he vacated the hostel premises as the
same was demolished for reconstruction and after its
reconstruction he again started living there from December, 2001.
He further stated that his co-accused Ansar Ahmad Dar had been
visiting him on earlier occasions also while his other two co-
accused persons had come to him for the first time on 31st
December, 2001. It was also his stand that his family itself was
victim of terrorists in Kashmir inasmuch as his brother and his
other relative were killed by the terrorists and then he himself had
shifted to Delhi from Kashmir. Accused Mohd. Kumhar had
claimed in his statement under Section 313 Cr.P.C. that he was
working as a Jr. Engineer in the Rural Development Department,
J&K since May, 1999 and had further that he had come to Delhi on
31st December, 2001 for some business purposes relating to co-
accused Adil and Ansar and had stayed with co-accused Bilal who
was known to them as all of them belonged to village Anantnag.
He further claimed that on 02-01-2002 he along with his other
three co-accused persons was arrested by some policemen in plain
Crl. A. Nos. 811/2007,
clothes at about 10-10.30 p.m. and were kept in the special cell.
This accused also claimed that his grandfather was also killed by
the militants in Kashmir since was having affiliation with National
Conference. Accused Ansar Ahmad Dar claimed in his statement
under Section 313 Cr.P.C. that his family had links with politicians
and his Phoofa was Deputy Home Minister in Deve Gowda
Government and for that reason the terrorists had killed
his(Ansar's) father his another phoofa was abducted by terrorists
and had demanded ransom of Rs.five lacs. He also claimed that
he himself used to visit Delhi in connection with his business of
spices and further that his co-accused Adil and were also doing
business in partnership and this time both of them had also
accompanied him to Delhi. He further claimed that he was kept in
Special Cell from 02-01-2002 to 15-01-2002. Accused Adil Nazir
Keen also claimed in his statement under Section 313 Cr.P.C. that
he was a frequent visitor to Delhi in connection with his business
and he stated that he had come to Delhi on 31-12-2001 and had
stayed with co-accused Bilal in his hostel room along with co-
accused and Ansar who had also come to Delhi along with him. He
also claimed that he along with his co-accused persons were
Crl. A. Nos. 811/2007,
apprehended on 02-01-2002 from the room of Bilal in Karan Hostel
at about 10.30 p.m. and since then they remained in police
custody. He also claimed that his family was also victim of the
terrorists in Kashmir to which place they belonged. The pleas
taken by accused Dilip Tribhuvandas and Rajesh Bhai Prajapati
are, however, now not of any relevance in view of the orders passed
by the Designated Judge in their favour because of their
exoneration by the POTA Review Committee. The accused persons
had also examined fourteen witnesses in defence, some of whom
had been examined on behalf of accused Rajesh Bhai Prajapati
and Dilip Tribhuvandas while the remaining were examined on
behalf of the accused Mohd. Kumhar, Adil Nazir Keen, Bilal Ahmed
Mir and Ansar Ahmed Dar in support of their common defence that
they had been taken into custody by the police on 02-01-2002 and
not on 14-01-2002 as was being claimed by the police.
9. The learned trial Judge after analyzing the evidence produced
from both the sides came to the conclusion that the prosecution
had failed to establish that the accused persons were members of
any banned terrorist organization and further that the confessions
Crl. A. Nos. 811/2007,
of accused Mohd. Afzal and Adil Nazir recorded by PW-1 DCP Balaji
Srivastava under Section 32 of POTO could not be said to have
been made by these accused voluntarily. But at the same time
accepting the prosecution evidence regarding recovery of RDX and
huge amount of cash from the accused-appellants on 14/01/02
the learned trial Court also observed in the impugned judgment
that ―.......At the same merely for the reason that their confessional
statements are vitiated on account of non compliance of the
provisions of Sec.32 POTA it cannot be said that it affects in any
manner the recovery of incriminating material effected from the
possession of the accused persons from Karan Hostel......." And
further held that ―.......the acts of all the accused while possessing
huge quantity of hazardous explosive material i.e. RDX, electric
detonators as well as unaccounted cash amount of Rs.34.90 lakhs
do amount to terrorist acts." The trial Judge also held that from
these recoveries ―.....it is proved that all the accused had entered
into a criminal conspiracy to wage war against the Government of
India or to overawe the Govt. of India by use of the hazardous
explosive substance......‖. And then after rejecting the defence plea
that the accused-appellants had been picked up by the police from
Crl. A. Nos. 811/2007,
Karan Hostel on 02/01/02 the trial Court convicted each one of
the four accused-appellants for different offences and acquitted of
them some offences vide judgment dated 30th October,2007 and
awarded different sentences to each one of them vide order dated
22nd November,2007.
10. The offences for the commission of which the accused-
appellants were acquitted and the offences of which they were
convicted and the sentences awarded to them are as under:-
(1) All the accused-appellants were held guilty under Sections
121-A/122 IPC and sentenced to undergo rigorous
imprisonment for a period of 10 years on each count and
also to pay fine of Rs. 25,000/- each, in default to
undergo SI for three months;
(2) All the accused-appellants were acquitted of the charge
under Sections 3(1)(b), 3(5) and 20 of POTA and instead
were convicted under section 3(3) of POTA for having
conspired to commit a terrorist act with the help of
hazardous explosive material and were sentenced to
undergo RI for seven years and to pay a fine of
Rs.,25,000/- each, in default to undergo SI for three
months;
Crl. A. Nos. 811/2007,
(3) All the accused-appellants were further convicted under
Section 4(b) of POTA and sentenced to RI for seven years;
(4) All the accused-appellants were held guilty under Section
22(2) POTA and sentenced to RI for five years;
(5) All the accused-appellants were convicted under Section
4(b)(ii) of the Explosive Substances Act and sentenced to
RI for seven years and fine of Rs.25,000/- each, in default
were ordered to undergo SI for three months;
(6) All the accused-appellants were also held guilty under
Section 5(b) of the Explosive Substances Act and
sentenced to undergo RI for seven years and fine of
Rs.25,000/- each, in default to undergo SI for three
months
11. Feeling aggrieved, accused Mohd. Afzal Kumhar and Adil
Nazir Keen filed a joint appeal(being Crl. A.No.811 of 2007) while
other two convicted accused Bilal Ahmad Dar and Ansar Ahmad
Dar had filed their separate appeals, being Crl.A.No. 89 of 2008
and Crl.A.No. 90 of 2008 respectively. However, all the three
appeals were taken up together for hearing and so are now being
disposed of by this common judgment.
12. The State, however, chose not to challenge the acquittal of
Crl. A. Nos. 811/2007,
the accused for the offences under Sections 3(b) & (5) and Section
20 POTA.
13. On behalf of accused-appellants Mohd. Afzal Kumhar and
Adil Nazir Keen submissions were made by their counsel
Ms. Kamini Jaiswal while for accused-appellants Bilal Ahmad Mir
and Ansar Ahmad Dar their counsel S/Shri Maninder Singh and
Ajay Kumar advanced arguments. The respondent State was
represented in all the three appeals by Additional Public
Prosecutor Shri M.N.Dudeja.
14. From the foregoing narration of the prosecution case as well
as the defence pleas it is clear that at least on one aspect of the
case there is no dispute between the prosecution and the defence
and that aspect is regarding the place of arrest of the accused-
appellants. It is the prosecution case that the accused-appellants
were staying in room no.3 of Karan Hostel in Kotla Mubarakpur,
New Delhi and they were arrested from there. Accused-appellants
had also admitted that they were staying in room no.3 of Karan
Hostel and that they all were arrested from there only. However,
Crl. A. Nos. 811/2007,
there is a serious dispute between the two sides regarding the
actual date of arrest of the accused-appellants. As per the
prosecution case they were arrested on 14/01/02 while the
accused persons claim that all the four were picked up by the
police on 02/01/02 to be falsely implicated in a case of terrorism.
It was submitted by the learned counsel for all the appellants that
since there have been many incidents of terrorism in our country
over the last many years the Indian intelligence agencies have
been claiming that the acts of terrorism were being resorted to
militants belonging to terrorist organizations to liberate India
occupied part of Kashmir and that in that mission Kashmiri youth
were also taking active part. So, learned counsel submitted, every
year around Republic Day and Independence Day the police arrests
some Kashmiri boys to create fear amongst them. It was also
contended that this time since there was a terrorist attack on the
Parliament House in December, 2001 the Intelligence Agencies
must have apprehended some untoward incidents in the Capital
around the Republic Day also and as a precautionary measure it
must have been decided to apprehend some Kashmiri boys and
since the Intelligence Agencies keep a track and have all the
Crl. A. Nos. 811/2007,
information about the places where Kashmiri boys coming to Delhi
for studies or business etc. stay, Karan Hostel, where the
appellants, who are all Kashmiri boys, were staying was targeted
for picking up Kashmiri boys to be detained and in that process the
appellants came to be picked up on 02/01/02. And this
suggestion was put also to the investigating officer PW-18 ACP
Rajbir Singh in his cross-examination(which was denied) as also to
PW-12 SI Sanjay Dutt Govind to whom it was also put that in 2000
and 2001 also around the same time he had conducted raid at
Karan Hostel. However, counsel further submitted, since the near
and dear ones of these accused in Kashmir came to know about
that illegal action of the Delhi Police they protested and their
protests reached the authorities in Delhi and then in order to avoid
the situation becoming awkward for them because of their having
illegally confined innocent persons the police showed on papers
the arrest of the appellants on 14/01/02 for their having been
found in possession of RDX etc. which in fact were never recovered
from the accused. Learned counsel also submitted that to
substantiate the plea that the accused had been picked up from
the Hostel on 02/01/02 they had examined evidence of totally
Crl. A. Nos. 811/2007,
independent witnesses but the same had been brushed aside the
by the trial Court on unsustainable grounds.
15. Now, as far as the defence plea is concerned the same
cannot be taken up for consideration at the outset since it has to
be examined after the prosecution evidence has been analysed by
us. A plea in defence, even if is found to be not proved, does not
entitle the prosecution to secure an order of conviction on the
accused for that reason alone. It has to establish its case
independently. If after trial the prosecution is found to have
discharged the initial burden of establishing its allegations against
the accused the occasion then arises for examining the defence
plea to find out if the same has been proved on the scale of
probabilities and then it is considered in whose favour the scale
has tilted. So, we shall first examine and re-appraise the
prosecution evidence independently to find out if the same
establishes the allegations against the convicted accused persons
or not and then would come to the defence plea.
16. The prosecution case was that the accused-appellants were
Crl. A. Nos. 811/2007,
members of a militant organization known as Lashkar-e-Toiba and
their aim was to spread terror in India to overawe and wage war
against the Government of India to ensure liberation of India
occupied Kashmir. The prosecution had sought to establish its case
relying upon the confessional statements of accused-appellants
Mohd. Afzal Kumhar and Adil Nazir Keen recorded by PW-1 Balaji
Srivastava, DCP, which according to the learned APP Mr. Dudeja
could be used against the other two accused also who had faced
trial for the same offences alongwith Mohd. Afzal and Adil Nazir. To
further strengthen its case the prosecution had also relied upon the
recoveries of huge quantity of RDX and Indian currency from
accused Mohd. Afzal Kumhar and Adil Nazir Keen which they were
carrying with them in separate bags at the time of their
apprehension and also upon recoveries of about twenty five lacs of
rupees and explosive material from room no.3 of Karan Hostel on
the pointing out of other two accused persons on 14/01/02. We
shall first take the prosecution case regarding the confessions of
accused-appellants Mohd. Afzal Kumhar and Adil Nazir Keen since
in the criminal cases against terrorists, which according to the
prosecution as well as the Designated Court the accused-
Crl. A. Nos. 811/2007,
appellants are, confessions of accused persons regarding their
involvement in terrorist acts is the most formidable piece of
evidence which the prosecution can place in the forefront during
their trial since the basic ingredient of a confession is admission of
guilt by the accused and there can be no better proof of the
commission of a crime than the admission of guilt by the accused
themselves. In ―Sahib Singh Vs. State of Haryana‖, 1997 (7) SCC
231 the Supreme Court had also observed that:-
―...........Conviction on ‗confession' is based on the
maxim ‗habemus optimum-testem, confidante reum'
which means that confession of an accused is the best
evidence against him. The rationale behind this rule is
that an ordinary, normal and sane person would not
make a statement which would incriminate him unless
urged by the prompting of truth and conscience.‖
17. In ―Davinder Pal Singh Vs. State‖, AIR 2002 SC 1661, the
Hon'ble Supreme Court had made a reference with approval to the
following views of Justice M. Monir, author of ‗Principle and Digest
of Law of Evidence':-
―...........the confession, if once proved to have been
made and made voluntarily, is one of the most
effectual proofs in the law.‖
18. As noticed already, the Designated Court in the present case
Crl. A. Nos. 811/2007,
has rejected the confessional statements holding that the same
were ‗manipulated' and ‗fabricated' by the police. This finding of
the Designated Judge has emboldened the appellants in these
appeals and relying upon that finding in their favour their counsel
have forcefully contended before us that the entire case should
have been rejected by the trial Court after coming to such a
conclusion because if the police could manipulate and fabricate
confessions of the accused it could have very conveniently made a
false case of so-called recoveries of RDX etc. also and if that was a
possibility, the benefit of doubt had to be extended to the accused.
The learned prosecutor Mr. Dudeja had submitted that since these
are appeals against a judgment of conviction, this Court is not
bound to accept the findings of the trial Court in respect of the
confessional statements of the accused and the prosecution
evidence in that respect is to be analysed and re-appreciated by
this Court independently and if that is done then we will be
convinced that the Designated Court had discarded the two
confessional statements on totally unsustainable grounds.
19. We are in full agreement with the submission of the learned
Crl. A. Nos. 811/2007,
prosecutor that even though the trial Court has rejected the
confessional statements of two accused persons we can still
reverse its findings if we find the same to be not based on sound
reasons.
20. Although no confession made by an accused before a
policeman is admissible in evidence under the general law of
evidence but in the present case the confessional statements of
two accused which were made before PW-1 DCP Balaji Srivastava
can be considered as substantive evidence provided the same are
found to have been made voluntarily by the accused. That is so
since the same were recorded by a senior ranking police officer in
exercise of the power vested in him in that regard under Section 32
of POTO. Section 32 reads as under:-
―Certain confessions made to police officers to be
taken into consideration- (1) Notwithstanding anything
in the Code or in the Indian Evidence Act, 1872 (1 of
1872), but subject to the provisions of this section, a
confession made by a person before a police officer
not lower in rank than a Superintendent of Police and
recorded by such police officer either in writing or on
any mechanical or electronic device like cassettes,
tapes or sound tracks from out of which sound or
images can be reproduced, shall be admissible in the
trial of such person for an offence under this Act or
rules made thereunder.
Crl. A. Nos. 811/2007,
2. A police officer shall, before recording any
confession made by a person under sub-section (1),
explain to such person in writing that he is not bound
to make a confession and that if he does so, it may be
used against him:
Provided that where such person prefers to
remain silent, the police officer shall not compel or
induce him to make any confession.
(3) The confession shall be recorded in an
atmosphere free from threat or inducement and shall
be in the same language in which the person makes it.
(4) The person from whom a confession has been
recorded under sub-section (1), shall be produced
before the Court of a Chief Metropolitan Magistrate or
the Court of a Chief Judicial Magistrate along with the
original statement of confession, written or recorded
on mechanical or electronic device within forty-eight
hours.
(5) The Chief Metropolitan Magistrate or the Chief
Judicial Magistrate, shall, record the statement, if any,
made by the person so produced and get his signature
or thumb impression and if there is any complaint of
torture, such person shall be directed to be produced
for medical examination before a Medical Officer not
lower in rank than an Assistant Civil Surgeon and
thereafter, he shall be sent to judicial custody.‖
21. Section 32 of POTO was incorporated in POTA also when it
was enacted in 2002. Before proceeding further we may briefly
notice as to under what circumstances POTO and POTA came to
be promulgated and why the Legislature made a departure from
the Evidence Act and the Code of Criminal Procedure while
enacting a provision like Section 32 of POTO and POTA. In view of
Crl. A. Nos. 811/2007,
the ever increasing terrorist activities in our country the Parliament
has been coming out with special penal statutes to curb the
menace of terrorism. In the year 1985 the Terrorist and Disruptive
Activities(Prevention) Act(TADA) was enacted by the Parliament.
Its constitutional validity was challenged on the grounds that it
contained draconian provisions including the one relating to the
admissibility in evidence of confessional statements of accused
recorded by policemen. The Constitution Bench of the Supreme
Court, however, in ―Kartar Singh vs State of Punjab‖, 1994(3) SCC
569, upheld the validity of this Act including Section 15
whereunder also it was provided that confessional statement of an
accused charged for some offence under TADA made before a
police officer not below the rank of Superintendent of Police
would be admissible in evidence. Section 15 of TADA, as it stood
before its amendment in 1993, read like this:-
―15. Certain confessions made to police officers to be
taken into consideration -
(1) Notwithstanding anything in the Code or in the
Indian Evidence Act, 1872 (1 of 1872) but subject to
the provisions of this section, a confession made by a
person before a police officer not lower in rank than a
Superintendent of Police and recorded by such police
officer either in writing or on any mechanical device
like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, shall be
Crl. A. Nos. 811/2007,
admissible in the trial of such person for an offence
under this Act or rules made thereunder.
(2) The police officer shall, before recording any
confession under Sub-section (1), explain to the person
making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence
against him and such police officer shall not record
any such confession unless upon questioning the
person making it, he has reason to believe that it is
being made voluntarily.‖
22. In 1993, this Section of TADA was amended and
confessional statement of an accused was made admissible even
against co-accused who was charged and being tried alongwith
the maker of the confession and the same was also held to be not
unconstitutional by the Constitution Bench.
23. In Kartar Singh's case the Hon'ble Supreme Court while
dealing with the challenge to the Constitutional validity of various
provisions of TADA had gone into the reasons behind promulgation
of TADA. This is what the Hon'ble Supreme Court had noticed in
paras no. 21, 30 and 33:
―21. From the recent past, in many parts of the
world, terrorism and disruption are spearheading for one
reason or another and resultantly great leaders have
been assassinated by suicide bombers and many
dastardly murders have been committed. Deplorably,
Crl. A. Nos. 811/2007,
determined youths lured by hardcore criminals and
underground extremists and attacked by the ideology of
terrorism are indulging in committing serious crimes
against the humanity. In spite of the drastic actions
taken and intense vigilance activated, the terrorists and
militants do not desist from triggering lawlessness if it
suits their purpose...............................................................
30. It was only in the above prevailing circumstances, the
Legislature has been compelled to bring forth these Acts
(TADA) to prevent and deal with the peril of the erupting
terrorism...................................................................................
33. The Parliament, evidently, taking note of the gravity of
terrorism committed by terrorists either with an intention
to overawe the Government as by law established or to
strike terror in the people or any section of the people or
to alienate any section of the people or to adversely
affect the harmony amongst different sections of the
people and the consequent widespread apparent danger
to the nation, has felt the need of not only continuing but
also further strengthening the provisions of TADA Act(Act
31 of 1985) in order to cope with the menace of
terrorism, enacted Act 28 of 1987 bringing drastic
changes with regard to the admissibility of confessions
made to police officials prescribing special procedures
and providing condign punishments etc., leave apart the
question with regard to the validity of these provisions to
be tested on the touchstone of the Constitution.‖
24. Regarding the confessional statements recorded under
Section 15 of TADA the Supreme Court after the judgment in
Kartar Singh' case(supra) has ruled in its various decisions that the
confessional statements of accused, if shown to have been made
voluntarily and truthfully and recorded by the competent police
officer after complying with the procedural safeguards provided
under Section 15 and the Rules framed under TADA, constitute
Crl. A. Nos. 811/2007,
substantive piece of evidence which can be made the sole basis of
conviction and that too without any corroboration. In fact in most of
the cases under convictions under TADA were upheld thereafter by
the Apex Court relying upon confessional statements alone. In this
regard we may make a useful reference to the decision of Hon'ble
Supreme Court wherein the evidentiary value of a confession
recorded under Section 15 of TADA was sought to be eroded on
behalf of the convict and after considering earlier judgments on the
point Hon'ble Supreme Court held that confession under Section
15 of TADA was a substantive piece of evidence which could be
made the sole basis of conviction without any corroboration. That
judgment was rendered in ―Jameel Ahmad vs State of Rajasthan‖,
(2003)9 SCC 673, and the relevant paras of that judgment are
being re-produced hereunder:-
―23. Since the prosecution case in these appeals is
primarily founded on various confessions of the
accused involving themselves as well as other co-
accused, we will first consider the argument of the
appellants that, assuming that the confessional
statements have been proved to have been made in
accordance with law and voluntary and truthful, even
then can such confessions be relied upon solely to
base a conviction on the maker of the confession, and
if so, can it also be used against a co-accused and if so
whether such confession requires corroboration or not,
and if so required whether such corroboration need be
general or should be of all material facts in the
Crl. A. Nos. 811/2007,
confession. The argument of learned counsel in this
regard is that the prosecution should prove the
involvement of the accused by other evidence first and
the confession of an accused can only be used as a
corroborative piece of evidence and not as a
substantive piece of evidence, that too against the
maker only. This argument is basically founded on an
assumption that Sections 25 to 30 of the Evidence Act
also apply to the confessions recorded under Section
15 of the TADA Act. In support of this argument, the
learned counsel relies on the line of judgments of this
Court which considered the scope of Sections 25 to 30
of the Evidence Act and the probative value of such a
confession; one of such judgments is Mohd. Khalid v.
State of West Bengal. The passage relied upon by the
appellants in support of this contention of theirs in the
said judgment runs thus:
"It is only when the other evidence tendered against
the co-accused points to his guilt then the confession
duly proved could be used against such co-accused if it
appears to affect him as lending support or assurance
to such other evidence."
(emphasis supplied).
24. We do not think this principle laid down by this
Court in Mohd. Khalid (supra) under Section 30 of the
Evidence Act could be applied to confessions recorded
under Section 15 of the TADA Act. Herein it is relevant
to note that Section 15 of the TADA Act by the use of
non-obstante clause has made confession recorded
under Section 15 admissible notwithstanding anything
contained in the Indian Evidence Act or the Code of
Criminal Procedure. It also specifically provides that
the confession so recorded shall be admissible in the
trial of a co-accused for offence committed and tried in
the same case together with the accused who makes
the confession. Apart from the plain language of
Section 15 which excludes the application of Section
30 of the Evidence Act, this Court has in many
judgments in specific terms held that Section 30 of the
Evidence Act has no role to play when the court
considers the confession of an accused made under
Section 15 of the TADA Act either in regard to himself
or in regard to his co-accused.
Crl. A. Nos. 811/2007,
25..........................................................................................
26. Therefore the argument of learned counsel that a
confessional statement of an accused made under
Section 15 of the TADA Act can be used only to
corroborate other substantive evidence produced by
the prosecution cannot be accepted.
27. The next question for our consideration in this
regard would be whether confession recorded under
Section 15 of the TADA Act can be solely relied upon
for basing a conviction on the maker of that
confession.....................The Section further provides
that such statement made to the Police Officer shall
be admissible in evidence. Once the statement in
admissible in evidence then like any other evidence, it
is for the court to consider whether such statement
can be relied on solely or with necessary corroboration.
Therefore, the argument that as a matter of rule such
statement Under Section 15 of the TADA Act should
not be relied upon without corroboration cannot be
accepted. We have already noticed that this provision
of law is a departure from the provision of Sections 25
to 30 of the Evidence Act...................................................
28. Therefore, the argument of learned counsel that
merely because the statement has been recorded by a
Police Officer the same should be treated as a weak
type of evidence and should not be accepted without
corroboration, cannot be countenanced.‖
25. The above quoted views of the Supreme Court were referred
to with approval in a recent decision also of the Apex Court which
is reported as ― Mohamed Amin @ Amin Choteli & another vs
C.B.I.‖ 2008 (14) SCALE 240. This is what was observed in para
no. 27 of this judgment:-
Crl. A. Nos. 811/2007,
―27. The ratio of the above noted judgments is that if a person
accused of an offence under the Act makes a confession
before a police officer not below the rank of Superintendent of
Police and the same is recorded by the concerned officer in
writing or on any mechanical device like cassettes, tapes or
sound tracks from out of which sounds or images can be
reproduced, then such confession is admissible in the trial of
the maker as also the co-accused, abettor or conspirator not
only for an offence under the Act but also for offence(s) under
other enactments, provided that the co- accused, abettor or
conspirator is charged and tried in the same case along with
the accused and the Court is satisfied that requirements of the
Act and Rules have been complied with. Whether such
confession requires corroboration depends on the facts of the
given case. If the Court is convinced that the probative value of
the confession is such that it does not require corroboration
then the same can be used for convicting the maker and/or
co-accused under the Act and/or other enactments without
independent corroboration. If a person accused of committing
an offence under the Act challenges his confession on the
ground that it was not made voluntarily, then the initial burden
is on the prosecution to prove that all requirements under
Section 15(1) of the Act and Rule 15 of the Rules have been
complied with. Once this is done, the burden shifts on the
accused person and it is for him to prove that the confession
was not made voluntarily or that the same is not truthful and if
he adduces evidence during the trial to substantiate his
allegation that the confession was not voluntary then the Court
has to carefully scrutinize the entire evidence and surrounding
circumstances and determine whether or not the confession
was voluntary. The confession made under Section 15(1) of the
Act cannot be discarded only on the ground of violation of the
guidelines laid down in Kartar Singh's case because the same
have not been incorporated in the Act and/or the Rules.‖
26. A perusal of various pronouncements of the Hon'ble
Supreme Court rendered in cases of TADA after Kartar Singh's
judgment shows that the confessional statements of the accused
involved in those cases have been challenged on some kind of
irregularities in the recording of those statements as well as the
Crl. A. Nos. 811/2007,
procedure adopted for that purpose. However, the Hon'ble
Supreme Court in ―Jayawant Dattatray Suryarao v. State of
Maharashtra‖ AIR 2001 SCW 4717 while dealing with the
challenge to the confessional statement on the ground of some
irregularities observed as under:
―Confessional statement before the police officer
under Section 15 of the TADA is substantive evidence
and it can be relied upon in the trial of such person or
co-accused, abettor or conspirator for an offence
punishable under the Act or the rules. The police
officer before recording the confession has to observe
the requirement of Sub-section (2) of Section 15.
Irregularities here and there would not make such
confessional statement inadmissible in evidence. If
the Legislature in its wisdom has provided after
considering the situation prevailing in the society that
such confessional statement can be used as evidence,
it would not be just, reasonable and prudent to water
down the scheme of the Act on the assumption that
the said statement was recorded under duress or was
not recorded truly by the concerned officer in whom
faith is reposed..................‖(emphasis supplied)
27. In Devinder Pal Singh's case (supra), the Hon'ble Supreme
Court while dealing with the challenge to the confessional
statement of the accused had also observed that merely because
of non-observance of any procedural requirement under the Rules
framed under TADA does not cause any prejudice to the accused
and unless prejudice is shown to have been caused the
Crl. A. Nos. 811/2007,
confessional statement cannot be discarded because of non-
observance of a procedural requirement. It was also observed that
―Procedure is hand maid and not the Mistress of Law, intending to
sub serve and facilitate the cause of justice and not to govern or
obstruct it.‖
28. TADA lapsed in 1995 but since terrorism in the country
continued unabated, The Prevention of Terrorism Ordinance,2001
(POTO) was promulgated followed by promulgation of the
Prevention of Terrorism(Second) Ordinance, 2001 in the wake of
attack on the Parliament House on 13th December,2001. In 2002
the Prevention of Terrorism Act, 2002(POTA) was enacted
replacing the said Second Ordinance of 2001. POTO had also a
provision similar to Section 15 of TADA regarding the confessions
of accused made before senior ranking police officers. That is
Section 32. The confession made by an accused under Section 32
POTO(which corresponds to Section 32 of POTA) has also thus to
be considered as a substantive piece of evidence in view of the
various decisions of the Supreme Court on Section 15 of TADA and
also in view of the non-obstante provision in this Section also
Crl. A. Nos. 811/2007,
similar to the one which was there in Section 15 of TADA excluding
the applicability of the provisions of the Evidence Act to such
confessions.
29. In fact, Section 32 of POTA also came to be considered by the
Hon'ble Supreme Court in a case now popularly known as
Parliament Attack case, reported as AIR 2005 3820, ―State Vs.
Navjot Sandhu‖, and the views of the Apex Court in respect of this
provision are to be found at page no. 3849 of AIR and are re-
produced below:
―What is the legal position relating to CONFESSIONS
UNDER THE POTA is the next important aspect.
Following the path shown by its predecessor, namely
TADA Act, POTA marks a notable departure from the
general law of evidence in that it makes the confession
to a high ranking police officer admissible in evidence
in the trial of such person for the offence under POTA.
As regards the confession to the police officer, the
TADA regime is continued subject to certain
refinements.
Now, let us take stock of the provisions contained in
Section 32 of POTA. Sub-section (1) of this Section
starts with a non obstante provision with the words
―Notwithstanding anything in the Code of Criminal
Procedure or in the Indian Evidence Act.‖ Then it says:
―a confession made by a person before a police officer
not lower in rank than a Superintendent of Police and
recorded by such police officer either in writing or on
any mechanical or electronic device, shall be
admissible in the trial of such person for an offence
under the Act or the rules, subject to other provisions
Crl. A. Nos. 811/2007,
of the section‖. By this provision, the ban against the
reception of confessional statements made to the
police is lifted. That is why the non-obstante clause.
This sub-section is almost identical to Section 15(1) of
TADA excepting that the words ―or co-accused, abettor
or conspirator occurring after the expression ―in the
trial of such person‖ were omitted. The other four sub-
sections (2) to (5) of Section 32 are meant to provide
certain safeguards to the accused in order to ensure
that the confession is not extracted by threat or
inducement. Sub-section (2) says that the police
officer, before recording a confession should explain in
writing to the person concerned that he is not bund to
make a confession and that the confession if made by
him can be used against him. The right of the person
to remain silent before the police officer called upon to
record the confession is recognized by the proviso to
sub-section (2). Sub-section (3) enjoins that the
confession shall be recorded in a threat-free
atmosphere. Moreover, it should be recorded in the
same language as that used by the maker of the
confession. The most important safeguard provided
in sub-sections (4) & (5) is that the person from whom
the confession was recorded is required to be
produced before a Chief Metropolitan Magistrate,
within 48 hours, together with the original statement
of confession in whatever manner it was recorded.
The CMM or the CJM shall then record the statement
made by the person so produced. If there is any
complaint of torture, the police shall be directed to
produce the person for medical examination and
thereafter he shall be sent to the judicial custody.‖
Thereafter, referring to the Constitution Bench judgment in
Kartar Singh's case(supra) in which certain guidelines were laid
down for being taken care of by the Parliament, the Hon'ble
Supreme Court made the following observations (at page 3855) of
Crl. A. Nos. 811/2007,
AIR:
―The Constitution Bench judgment is binding on us. In
fact, the ratio of that judgment applies with greater
force to the POTA, as the guidelines set out by the
constitution Bench are substantially incorporated into
Section 32....‖
And then at page 3857 the Court concluded the discussion
relating to Section 32 of POTA by observing as under:
―As the law now stands, the confession recorded by
the police officer under Section 32(1) of POTA is
admissible in evidence. The voluntariness and
reliability of confession can of course be tested by the
court. The admission of such confession would also
be subject to the observance of the other provisions of
Section 32 of POTA which are in the nature of
procedural safeguards aimed at ensuring that the
confessions are made by the accused in an
atmosphere free from threat and inducement.‖
30. So, what follows from the above-noted decisions of the
Supreme Court is that the confession of an accused being tried for
offences under TADA/POTA made before police are admissible in
evidence provided, of course, the same were not made under any
kind of compulsion or as a result of torture from any quarter.
However, there can be a situation where confession of an accused
would be admissible in evidence even if the confession was made
under compulsion or as a result of torture. That exception would
Crl. A. Nos. 811/2007,
come into play if the accused is ‗tortured' and ‗compelled' by his
own conscience to make a ‗confession of guilt' which, if not made,
would kill him from within. Reference in this regard can be made
6usefully to the following observations also of the Supreme Court
in ― Gurdeep Singh @ Deep vs The State‖, AIR 1999 SC 3646:-
―22. So the crux of making statement voluntarily is,
what is intentional, intended, enameled by other
influences, acting on one's own will, through his own
conscience. Such confessional statements are made
mostly out of a thirst to speak the truth which at a
given time predominates in the heart of the confessor
which impels him to speak out the truth. Internal
compulsion of the conscience to speak out the truth
normally emerges when one is in despondency or in
perilous situation when he wants to shed his cloak of
guilt and nothing but disclosing the truth would dawn
on him. It sometimes becomes so powerful that he is
ready to face all consequences for clearing his heart.‖
31. We may also notice the following observations of the Hon'ble
Supreme Court in a later judgment in ―Ravinder Singh Vs. State of
Maharashtra‖, 2002 (IX) SCC 55 in para no. 18:
―There can be no doubt that a free and voluntary
confession deserves the highest credit. It is presumed
to flow from the highest sense of guilt............................‖
32. Let us now see what accused Mohd. Afzal Kumhar and Adil
Crl. A. Nos. 811/2007,
Nazir had claimed in their statements recorded by PW-1 Balaji
Srivastava. Ex. PW-1/A is Mohd. Kumhar's statement and his
preliminary questioning and its contents are re-produced below:-
―Confessional statement under section 32 of the
Prevention of Terrorism (Second) Ordinance, 2001.
Date: Thursday, January 24, 2002.
Place: Office of the Asstt. Commissioner of Police,
Southern Range, (Operation Cell),
Lodhi Colony, New Delhi.
Time: 1700 hrs.
Accused Mohd. Kumhar s/o Gulam Mohd. Afzal
Kumhar r/o Telwani, Anantnag, PS Anantnag, J&K has
been arrested in case FIR No. 18/2002 PS KM Pur. He
has been produced before me by the IO Sh. Rajbir Singh
ACP for recording his confessional statement u/s 32 of
Prevention of Terrorism (Second) Ordinance, 2001, in the
office of Asstt. Commissioner of Police, Southern Range,
(Operation Cell), Lodhi Colony, New Delhi.
Now I have asked ACP Sh. Rajbir Singh to leave the
room where the proceedings are being conducted. He
has since left the room. Apart from myself and my
Personal Assistant ASI Rajiv Sharma who shall record the
statement directly on the computer, only the accused
Mohd. Kumhar is present. The door of the chamber is
also closed.
I have explained to the accused Mohd. Afzal Kumhar
that he is not bound to make a confession and that if he
does so, any confession he may make, may be used as
evidence against him and I believe that this confession is
being made voluntarily. It is being taken in my presence
and hearing. I have specifically asked him the language
in which he wants to make the same. He has replied
that he can read, write, speak and understand English.
I am not under any compulsion, threat or inducement
to make any confessional statement. I have been
informed and have understood that my statement can be
used as evidence against me. I am making my
Crl. A. Nos. 811/2007,
statement voluntarily.
Sd/-, 24/01/02
Name of Accused : Mohd. Kumhar
Date :
Having satisfied myself that the accused is not under
any compulsion, threat or inducement to make a
confessional statement, I proceed to accordingly record
his statement in English which is as under:-
I was born in the year 1970 in Village Telwani, PS
Anantnag, J&K. I studied 10+2 from M.L. Higher
Secondary School and completed Diploma in Civil
Engineering in 1993. My father is a contractor in R&B
division of Anantnag. In 1994, I came to Delhi and did a
Diploma in AUTOCAD from India Education Centre,
Connaught Place. In 1999, I joined Rural Development
Department, Block Shamgus, Anantnag, as a Junior
Engineer and since then I have been working there.
I was familiar with Adil since childhood, who lived in
my neighbourhood in Village Telwani. Adil had a Kirana
shop in Telwani, Dist. Anantnag and shifted to Chini
Chowk, Anantnag in the year 2000. He is also making a
shopping complex in Anantnag. Ansar, who owns a
masala factory, named Nafis Masala Mill, in Dayalgam, is
a friend of Adil and I.
In 1999, Abu Amaar, a Pakistan national and an LeT
militant (District Commander in Anantnag) along with his
associates started coming to Telwani and they used to
stay forcibly in our houses. The visits of these militants
became frequent in year 2000. During these visits I got
acquainted with Abu Amaar. Adil also came in contact
with Abu Amaar during this period. He motivated us to
work for the tanzeem and also lured that working for
tanzeem would be monetarily beneficial for us. I along
with Adil and Ansar joined LeT. We used to provide shelter
and amenities to the LeT militants. During this period,
Abu Amaar also provided us basic training in making
IEDs.
About two months back Abu Amaar contacted me and
directed to bring hawala money from Delhi for the Tanzim
and also told me to take Adil for this task. In then
Crl. A. Nos. 811/2007,
contacted Adil and told him that Abu Amaar had called
him for some task. Adil and I met Abu Amaar in a house
in village Shangus, Ananatnag. During this meeting Abu
Amaar asked me and Adil to bring some money fpr the
Tanzim from Delhi. On 29.12.2--1, Abu Amaar again
contacted me and told that very soon we would have to
go to Delhi to collect money for Abu Amaar. He told that
we would be collecting Rs. 35 lacs from Delhi and out of
which we can use Rs. 8-10 lacs for ourselves. Abu Amaar
directed us to go to Delhi the next day and gave us Rs. 10
thousand for meeting expenses. He also gave us two
currency notes of Rs. 10/- as token for taking the delivery
of hawala money.He also informed that we would be
receiving some explosives, which were to be planted
along the route of Republic Day Parade.
Accordingly, I along with Adil and Ansar arrived in
Delhi on 31.12.2001. Amaar gave us the number of one
Bilal Ahmed Meer a native of Vill. Dayal Gam, Anantnag,
who was also a friend of Ansaar and was staying in Room
No.3, Karan Hostel, 1804/2, Parsadi Gali, Kotla
Mubarakpur, New Delhi. (Phone # 4655730). Abu
Amaar told us that Bilal was also an L-e-T sympathizer
and we would be staying at his place and receive all the
necessary directions for the operation, there.
accordingly, I along with Adil and Ansar came to Delhi
and started staying at Bilal's room. I was given code
name Nazir for the operation.
On 02.02.02, at about 2.30 PM Adil received a call for
the delivery of hawala money from the Pakistan contact
of Abu Amaar and he fixed the time and place for the
delivery of hawala money. Accordingly, I along with Adil
went to Bangali Sweet corner, South Extensioin-I at 6.45
PM where two persons contactd us, and finally delivered
the hawala money of Rs. 6.75 lacs to us in the hostel
after taking one of the token currency notes. This person
code name Nissar also gave us one bag containing white
coloured explosive material, which has been recovered
from Bilal's room.
After that Nissar called us on Bilal's number and
directed to wait for further instructions for receiving the
remaining money. On 05.01.2001, the caller from
Pakistan directed to receive Rs. 15 lakhs from hawala
operator namely Dalip Bhai of M. Ramesh Kumar & Co.,
Crl. A. Nos. 811/2007,
4482, Ist Floor, Dau Bazar, Cloth Market, Chandni Chowk,
New Delhi and gave his telephone numbers 3988310 and
3157693. Accordingly, I contacted Dalip Bhai on the
said telephone number and on the same day Adil and I
received Rs. 15 lakhs from his above shop after giving
him the token currency note of Rs. 10/-.
During this period I received instructions from Abu
Amaar and his associates from Kashmir & Pakistan and I
also gave them the confirmation of receipts of the hawala
transactions and delivery of explosive material. Abu
Amaar also directed us to buy a mobile phone & a cash
card to receive further instructions. Accordingly, on
07.01.02, Adil purchased a mobile phone and cash card
no. 98113-36055 and we subsequently, informed them
our mobile number.
On 11.01.2002, I along with Adil again received Rs.
3.25 lakhs through hawala from Dilip Bhai of M. Ramesh
& Company. On 13.01.2002, I received instructions of
Abu Amaar at Bilal's phone and we were directed to
collect another hawala payment of Rs. 10 lakhs from
Dilip Bhai from Fateh Puri, Chandni Chowk. This hawala
transaction was to take place on 14th January, 2002. I
gave new token number of Rs. 10 note. The caller also
informed us that we would be receiving some more
explosives from Nisar, who would contact us soon.
New day on 14.01.2002, Nisar called us and directd us
to meet near gate No. 2 of Jama Masjid at about 6 PM,
and collect the explosives from him. Accordingly, I along
with Adil went to M. Ramesh Kumar & Company and after
giving him a pre determined token currency of Rs. 10/-
both of us collected hawala payment of Rs. 10 lakhs from
him. Thereafter, Adil and I went to Jama Masjid, where
we met Nisar, who gave us two packets containing
explosives and also gave us electronic detonators and
directed us to wait for further instructions of Abu Amaar.
After receiving the consignment of explosives and the
hawala payment when we reached near Karan Hostel in
Kotla Mubarakpur, we were apprehended by the police
and thereafter, our two other associates Ansar and Bilal
were also arrested and hawala payments and explosives
were also recovered.
We had been directed by Abu Amaar before leaving
Crl. A. Nos. 811/2007,
Kashmir to re-cee the areas where armoured vehicles are
parked and also to look out for the possible places on the
route of Republic Day Parade where maximum damage
due to explosives can be done. We were also directed by
Abu Amaar to prepare a few IEDs and plant them on the
route of Republic Day Parade during rehearsals so that
circumstances would be created compelling cancellation
of the Republic Day Parade. On our pointing out Dilip
Bhai has already been arrested. I can also reveal the
hideouts of Abu Amaar & his associates in Kashmir and
get him arrested.‖
33. The preliminary questioning and statement made by accused
Abdul Nazir Keen are recorded in Ex.PW-1/B and the same are re-
produced below verbatim:-
―Confessional statement under section 32 of the
Prevention of Terrorism (Second) Ordinance, 2001.
Date: Thursday, January 24, 2002.
Place: Office of the Asstt. Commissioner of Police,
Southern Range, (Operation Cell),
Lodhi Colony, New Delhi.
Time: 1900 hrs.
Accused Adil Nazir Keen s/o Nazir Ahmed Keen r/o
Chini Chowk, PS Sadar Distt., Anantnag, Kashmir and
village Telwani, PS Anantnag, J&K has been arrested in
case FIR No. 18/2002 PS KM Pur. He has been produced
before me by the IO Sh. Rajbir Singh ACP for recording his
confessional statement u/s 32 of Prevention of Terrorism
(Second) Ordinance, 2001, in the office of Asstt.
Commissioner of Police, Southern Range, (Operation
Cell), Lodhi Colony, New Delhi.
Now I have asked ACP Sh. Rajbir Singh to leave the
room where the proceedings are being conducted. He
has since left the room. Apart from myself and my
Personal Assistant ASI Rajiv Sharma who shall record the
statement directly on the computer, only the accused Adil
Crl. A. Nos. 811/2007,
Nazir Keen is present. The door of the chamber is also
closed.
I have explained to the accused Adil Nazir Keen that
he is not bound to make a confession and that if he does
so, any confession he may make, may be used as
evidence against him and I believe that this confession is
being made voluntarily. It is beign taken in my presence
and hearing. I have specifically asked him the language
in which he wants to make the same. He has replied
that he can read, write, speak and understand English.
I am not under any compulsion, threat or inducement
to make any confessional statement. I have been
informed and have understood that my statement can be
used as evidence against him.I am making my statement
voluntarily.
Sd/-, 24-01-02
Name of Accused: Adil Nazir Keen
Having satisfied myself that the accused is not under
any compulsion, threat or inducement to make a
confessional statement, I proceed to accordingly record
his statement in English which is as under:-
I was born in 1976 in Chini Chowk, PS Sadar, Distt.
Anantnag, Kashmir. My father was a headmaster in
Government school and my mother is a supervisor in
Anganwadi. I studied up to 10+2 and started my
bbusiness of Kirana items, hosiery items, clothes items
and etc. I know Kumhar who is a Junioir Engineer in
Shangus, Rural Development Department. I also know
Ansar who owns spice factory since childhood.
In 1999 while my family was in Tailwani, Ammar a LeT
militant (District Commander) along with his associates
started coming to Tailwanil the militant and his
associates used to forcibly stay in the houses of the
natives including mine. The visits of these militants
became frequent in year - 2000. During these visits I got
acquainted with Abu Amaar. In 2001 my family shifted
to Chini Chowk, Anantnag. who is a close friend of mine
also came in contact with Abu Amaar during this period.
Abu Amar motivated me Mohd. and Ansar to work for the
Crl. A. Nos. 811/2007,
Tanzim and also said that working for militant
organization for the cause of Jehad, would also be
monetarily beneficial for us. Accordingly I along with
and Ansar joined Lashkar-e-Tayyaba. Abu Amaar
provided us basic training in making IEDs. Besides this,
we continued to provide shelter and other amenities to
the LeT militants.
About two months ago came to me and told that Abu
Amaar had called me for some task. I accompanied to
meet Abu Amaar in a house in village Shangus,
Anantnag. During this meeting Abu Amaar asked and I
to bring some money for the Tanzim from Delhi. On
29.12.2001 again came to me and told that very soon e
would be going to Delhi to collect money for Abu Amaar.
He told that we would be collecting R. 35 lacs from Delhi
and out of which we could use Rs. 8/10 lacs for
ourselves. I agreed as and I were already planning to
start a joint business of packing tobacco for further sale
in J&K and we decided that we could use our share of Rs.
8/10 lakhs in our business. Abu Amaar directed us to go
to Delhi the next day and accordingly we left for Delhi on
30.12.2001. Abu Amaar also gave Rs. 10 thousand for
meeting the expenses. He also gave two currency notes
of Rs. 10/- as token for taking the delivery of hawala
money. Abu Amaar also directed us that apart from the
hawala money we were to receive a consignment of
explosive which was to be planted at strategic places
along the route of Republic Day Parade.
Accordingly, I along with and Ansar arrived in Delhi on
31.12.2001. Abu Amaar had given us the number of one
Bilal Ahmed Meer a native of Vill. Dayal Gam, Anantnag,
who was staying in Room No. 3, Karan Hostel, 1804/2,
Parsadi Gali, Kotla Mubarak Pur, New Delhi and having a
PP telephone No. 4655730. Bilal is a friend of Ansar
since childhood. Abu Amaar told us that Bilal was also
an LeT sympathizer and we would be staying at his place
and receives all the necessary directions for the operation
there. accordingly, I along with and Ansar came to Delhi
and started staying at Bilal's room in Kotla Mubarakpur.
We were given code name Nazir for the operation.
On 02.01.02, in the afternoon I received a call for the
delivery of hawala money from the Pakistan contact of
Abu Amaar and he fixed the time and place for the
Crl. A. Nos. 811/2007,
delivery of hawala money. Accordingly, I along with
went to Bangali Sweet Corner, South Extension-I at the
given time in the evening where two persons contacted
us, and finally delivered the hawala money of Rs. 6.75
lacs to us in the hostel after taking one of the token
currency notes. This person code name Nisar also gave
us one bag containing about 4 Kg. of white coloured
explosive material and told us to wait for further
directions. This explosive has already been recovered
from Bilal's room.
After that Nissar called on Bilal's number and directed
to wait for further instructions for receiving the remaining
money. On 05.01.2001, the caller from Pakistan directed
to receive Rs. 15 lakhs from hawala operator namely Dlip
Bhai of M Ramesh & Co., 4482, 1st Floor, Dau Bazar,
Cloth Market, Chandni Chowk, Delhi and gave his
telephone numbers 3988310 and 3157693.
Accordingly, contacted Dalip Bhai on the said telephone
number and on the same day I and received Rs. 15 lakhs
from his above shop after giving him the token currency
note of Rs. 10/-.
Abu Amaar directed us to buy a mobile phone & a
cash card to receive further instructions. Accordingly, on
07.01.02, I purchased a mobile phone and cash card no.
9811336055 and we subsequently, informed them our
mobile number.During this period received instructions
from Abu Amaar and his associates from Kashmir &
Pakistan and we also gave them the confirmation of
receipts of the hawala transactions and delivery of
explosive material.
On 11.01.2002, I along with again received Rs. 3.25
lakhs through hawala from Dilip Bhai of M Ramesh &
Company. On 13.01.2002, received instructions of Abu
Amaar at Bilal's phone and we were directed to collect
another hawala payment of Rs. 10 lakhs from Dilip Bhai
from Fateh Puri, Chandni Chowk. This hawala
transaction was to take place on 14th January, 2002.
The caller also informed us that we would be receiving
some more explosives from Nisar, who would contact us
soon.
Next day on 14.01.2002, Nisar called us and directed
us to meet near gate No. 2 of Jama Masjid at about 6 PM,
Crl. A. Nos. 811/2007,
and collect the explosives from him. Accordingly, I along
with went to M.Ramesh Kumar & Company and after
giving him a pre determined token currency of Rs. 10/-
both of us collected hawala payment of Rs. 10 lakhs from
him. Thereafter, and I went to Jama Masjid, where we
met Nisar, who gave us two packets containing explosives
and also gave us electronic detonators and directed us to
wait for further instructions of Abu Amaar. After
receiving the consignment of explosives and the hawala
payment when we reached near Karan Hostel in Kotla
Mubarakpur, we were apprehended by the police and
thereafter, our two other associates Ansar and Bilal were
also arrested and hawa payments and explosives were
also recovered.
Abu Amaar had directed us before leaving Kashmir to
re-cee the areas where army vehicles are parked and also
to lookout for possible places on the route of Republic
Day Parade where maximum damage due to explosives
can be done. He had also directed to prepare a few IEDs
and plant them on the route of Republic Day Parade
during rehearsals so that circumstances would be created
compelling cancellation of the Republic Day Parade. I
can also reveal the hideouts of Abu Amaar & his
associates in Kashmir and get him arrested.‖
34. Now, We shall examine whether these statements were
made by accused Mohd. Kumhar and Adil Nazir Keen and were
recorded truthfully after ensuring observance of all the requisite
procedural safeguards and if they made the same, whether they
had done that voluntarily. That can be found out only after
examining the evidence of the concerned witnesses and so we now
proceed to undertake that exercise. To prove these two
Crl. A. Nos. 811/2007,
confessional statements the prosecution had examined PW-1 DCP
Balaji Srivastava who had recorded the same. In his chief-
examination he deposed that on 24-01-2002 he was working as
DCP, Special Branch, Delhi Police and on that day ACP Rajbir
Singh(PW-18), the investigating officer of this case, had produced
before him accused Mohd. and Adil for recording of their
confessional statements for which they had expressed their
willingness. He also deposed that ACP Rajbir Singh had on 22-01-
2002 informed him on 22-01-2002 that these two accused
persons had expressed their willingness for making confessional
statements before the DCP and then he had fixed the date of 24-
01-2002 for recording of the statements. Both the accused were
brought before him at the office of ACP, Southern Range, Operation
Cell at 5 p.m., as had been directed by him. PW-1 further deposed
that before recording of the confessional statements of the two
accused persons he had asked them individually and separately
whether they had expressed willingness to make confessional
statements and both of them had answered in positive. He had
also asked them whether there was any threat or pressure upon
them to which they had replied that they were not under any sort of
Crl. A. Nos. 811/2007,
threat, inducement or pressure. He further deposed that he had
asked the accused persons about the language in which they would
like to make their statements and both of them had told him that
they could read, write and speak English. PW-1 further deposed
that after warning the accused that they were not bound to make
any confession and in case they decide to do that their confessions
could be read against them in evidence but despite that warning
both the accused showed their willingness to make confessional
statements and after satisfying himself that the willingness of the
accused to make confessional statements was voluntary he had
recorded their statements on computer. He further deposed that
both the accused had read their confessional statements on the
computer and then their print-outs were taken out and the accused
had read the same also and thereafter had signed on all the pages
and he himself had also signed the confessional statements on the
last page. PW-1 further stated that when the statement of
accused Mohd. was recorded besides himself his PA and the
accused there was nobody else present in the room and when
recording of statement of this accused was over only then the other
accused Adil was called inside the room and was sent out. This
Crl. A. Nos. 811/2007,
witness proved the preliminary questioning and confessional
statement of accused Mohd. as Ex. PW-1/A and the preliminary
questioning and confessional statement of accused Adil as Ex. PW-
1/B. In the cross-examination of PW-1 it was suggested to him
that the accused had not made any confessional statements
before him and that the confessional statements were already
available on the computer created by the investigating officer and
only a print-out of the same was produced before him and he had
made the accused persons to sign the same. The witness refuted
that suggestion.
35. It is also the prosecution case that after the recording of the
afore-said confessional statements of accused Mohd. Kumhar and
Adil Nazir Keen by DCP Balaji Srivastava on 24-01-2002 both these
accused were produced before Addl. Chief Metropolitan Magistrate
Shri V.K.Maheshwari(PW-5) on 25-01-2002 as was required to be
done under Section 32(4) & (5) of POTO. Shri V.K. Maheshwari has
also been examined by the prosecution and he has deposed that
when accused Mohd. Kumhar and Adil Nazir Keen were produced
before him along with their confessional statements recorded by
Crl. A. Nos. 811/2007,
DCP Balaji Srivastava he had enquired from both the accused
persons in respect of their confessional statements and whatever
they had stated before him was recorded by him in the proceeding
sheet prepared separately in respect of both the accused persons.
PW-5 proved his proceedings in respect of the accused as Ex.PW-
5/A and statement of Mohd. Afzal Kumhar as Ex.PW-5/B and that
of accused Adil Nazir Keen as Ex.PW-5/C . The proceedings
recorded by the ACMM that day,Ex.PW-5/A, are being re-produced
below:-
―25.1.2002
Present : ACP Rajbir Singh.
He has produced before me accused Mohd.
Afzal Kumhar S/o Gulam Mohd. Afzal
Kumhar and Adil Nazir Keen S/o Nazir
Ahmed Keen, and identified them.
IO stated before me that these accused persons
produced before DCP Sh. Balaji Srivastava on
24.1.2002. They have tendered their statements
voluntarily before DCP Sh. Balaji Srivastava. He has
also produced before me their statements in a sealed
envelope, seal with the seal of DCP, SB, Delhi.IO made
a request that as per provision of Sec. 32(4) & (5) of
POTO, confirmation of the statements made by these
accused may be sought from the accused. Seal of
envelope unsealed. I found another sealed envelope
inside this envelope which has also been stappled.
This envelope has also been opened. I found two
statements in this envelope, one is of accused Mohd
Kumhar and another is of Adil Nazir Keen recorded by
DCP Sh. Balaji Srivastava. Both these statements
Crl. A. Nos. 811/2007,
have been typed, bearing the signatures of DCP and of
accused persons. After going through both the
statements I put my initial on each sheet of the
statement. Statement of Mohd. Kumhar is of three
sheets while the statement of accused Adil Nazir Keen
has also been written on three sheets. I also put date
below my initial.
Mohd. has also been called inside my chamber, other
accused and police officer sent outside the Court
room along with IO. I called my Peon inside of my
chamber for security purpose. Custody of accused has
been handed over to the Peon. Inside my chamber I,
myself, my peon and my steno present.
Window/doors of the chamber closed in such a
manner that nobody from outside can see the accused
or accused can see anybody outside the chamber.
Accused has been explained by me that he is
not bound to make any confessional statement to any
authority. He has further been informed that in case
he will make any confessional statement, same can
be used in evidence against him. In enquired from
accused whether the has made his statement before
DCP Sh. Balaji Srivastava. Accused stated before me
that he has made his statement before the concerned
officer voluntarily, according to his own wishes, without
any fear or torture/pressure. I also enquired from
accused whether he is having any injury on his body.
Accused has stated that he has no injury on his body.
I further told him that he is in the Court he is at liberty
to make any complaint about any authority/officer or
anybody if he has any. Accused has stated that he has
no complaint against anyone. Hence he has nothing
to complain. I recorded his statement separately
without oath to this effect. Accused signed the
statement after reading and understanding the same.
Thereafter below the signatures of accused IO who has
been called inside, also put his signatures in token of
identification of accused.
At this stage, this accused is sent outside my
chamber.
At this stage, accused No. 2 Adil Nazir Keen has
been called inside my chamber. Inside my chamber,
Crl. A. Nos. 811/2007,
I, my steno, and my Peon are present. Chamber is
closed. All the windows/doors has been closed in such
a manner that nobody from outside can see the
accused or accused can see anybody outside the
chamber.
Accused Adil Nazir Keen has been explained by
me that he is not bound to make any confessional
statement to any authority. He has further been
informed that in case he will make any confessional
statements, same can be used in evidence against
him. In enquired from accused whether he has made
his statement before DCP Sh. Balaji Srivastava.
Accused stated before me that he had made a
statement before DCP Sh. Balaji Srivastava voluntarily,
according to his own will and without any pressure or
coercion. Nobody has induced him to make the
statement. I also enquired from accused whether he is
having any injury on his body. Accused has state that
he has no injury on his body. I further explained him
that he is in the Court before a Magistrate(ACMM). He
is at liberty to make any complaint against anybody if
he has any. However, accused stated that he has no
complaint against anybody. I recorded his statement
to this effect without oath.Accused signed the
statement made by him before me after reading any
understanding the same. At this stage, IO has been
called inside to put his signatures in token of
identification of accused.‖
36. The statement Ex.PW-5/B of accused Mohd. Afzal Kumhar is
also re-produced below:
―I am Diploma holder in Civil Engineering and also
Diploma Holder in AUTOCAD and I am working as Jr.
Engineer in Rural Development Department Anantnag,
J&K. I know English and can speak and write the
same. On 24.1.2002 I was produced before DCP. I
made my statement before him. I made my
statement according to my won will without any
pressure. Nobody was induced or threatened me to
make my statement. None has tortured me. I have
Crl. A. Nos. 811/2007,
been treated nicely since the date of my arrest on
14.1.2002 till today. I have no complaint to make
about anybody. My statement was recorded on my
dictation. I signed the statement after reading and
understanding. I have seen my statement today. It
bears my signatures. I identify the same.
Sd/-
ACMM/New Delhi
25.1.2002
I am signing after reading and understanding my
statement in the Court today.
Sd/-
(Mohd. Afzal Kumhar)‖
37. The statement Ex. PW-5/C of accused Adil Nazir Keen is re-
produced below:
―I am doing business of Kiryana item and Hosiery
items after doing my 10+2 examination from Hanifia
Institute, Ananatnag. My age is about 26 years. I am
well-versed in English. I put my signatures in English.
I can also write English and understand English. On
24.1.2002 I was made to appear before DCP by the
Police Officer. DCP recorded my statement which I
have tendered myself. I made my statement according
to my own wishes. Nobody has tortured me to make
my statement. Noen has guided me as to what
statement is to be made. I made statement without
any inticement or any promise. I have nothing to
complain about anybody. DCP has recorded my
statement as I disclosed to him. I have seen my
statement made before DCP now before this Court. I
have gone through the statements it is the same
statement which has been made. I also identify my
signatures on the statement.
Crl. A. Nos. 811/2007,
Sd/-
ACMM/N. Delhi
25.1.2002
I have gone through the above statement which I have
made today it is correctly recorded as given by me. I
also confirm my statement made by me before DCP.
Sd/-
(Adil Nazir Keen)‖
38. It is not in dispute that after the ACMM had recorded these
confirmatory statements of the two accused they were remanded
to judicial custody same day.
39. In the cross-examination of PW-5 Shri V.K. Maheshwari a
suggestion was put to him on behalf of accused Mohd. Afzal
Kumhar and Adil Nazir Keen that these accused were not produced
before him and that he had recorded the proceedings at the
instance of the investigating officer in a routine manner and also
that the accused had not signed in his presence, which he denied.
Another contradictory suggestion put to the witness was that on
25/01/02 the entire Patiala House Court Complex including his
Court was sealed by security personnel. PW-5 denied that
suggestion also.
Crl. A. Nos. 811/2007,
40. In our view, nothing could be elicited in the cross-
examination of PW-1 DCP Balaji Srivastava and PW-5 Shri V.K.
Maheshwari, ACMM, New Delhi which could create any doubt
regarding creditworthiness of their evidence as also in respect of
their satisfaction regarding the voluntary character of the
confessions made by accused Mohd. Afzal Kumhar and Adil Nazir
Keen. No good reason could be put forth before us by the learned
counsel for these two accused persons for disbelieving the
evidence of these witnesses. The DCP had satisfied himself, after
questioning the two accused and also warning them that they were
not bound to make any statement and in case they would do that
their statements could be used against them, that both the
accused were willing to make confessional statements
voluntarily and we do not find any fault with his satisfaction or
commission of violation of Section 32 of POTO. On an independent
analysis of the evidence of PWs 1 & 5 we find that their evidence
establishes beyond any doubt that the confessional statements Ex.
PW-1/A and Ex. PW-1/B of accused Mohd. Afzal Kumhar and Adil
Nazir Keen respectively were recorded correctly and the same had
been made by these two accused voluntarily. We are not inclined
Crl. A. Nos. 811/2007,
to accept the plea of these two accused that a police officer of the
rank of Deputy Commissioner of Police and also the Addl. Chief
Metropolitan Magistrate would have recorded their statements
falsely and without the accused persons having actually made the
same before them. Their statements were quite elaborate and
contained so much personal details which the DCP could not be
expected to know and none of the two accused has claimed that
their personal background mentioned in the statements was not
correct. It is significant to note that these two accused persons
have not disputed the fact that the confessional statements proved
by PW-1 and the confirmatory statements proved by PW-5 were
having their signatures. Both these accused admittedly are well
educated and know English language fully well. They had made
endorsements in English in their own handwriting before PW-5
affirming that whatever PW-5 had recorded in their confirmatory
statements was correct. These two accused have admitted this fact
at the time of recording of statements under Section 313 Cr.P.C.
Although it was also stated that they had written whatever was
dictated by ACP Rajbir Singh but that statement cannot be
Crl. A. Nos. 811/2007,
accepted as no such suggestion was given to PW-18 ACP Rajbir
Singh or the ACMM in their cross-examination.
41. Accused Mohd. Afzal Kumar had in his statement under
Section 313 Cr.P.C. stated in reply to Question no. 23 pertaining to
his confessional statement Ex.PW-1/A that they(he was obviously
referring to co-accused Adil Nazir also) were produced before some
police officer who did not tell his rank and did not ask them
anything except name and address. It was not claimed that the
statement Ex.PW-1/A was not signed by him or that he had not
read its contents. And when asked about the statement of his
recorded by the ACMM his reply was that he and others were not
produced before ACMM and they were made to sign some pre-
written papers.‖ Accused Adil Nazir Keen also had denied having
made any statement before the DCP and regarding the statement
before the ACMM he claimed that he was made to sit outside the
court room and made to sign on paper. However, when PW-5 was
cross-examined no such suggestion was put to him and on the
contrary a totally unbelievable suggestion was put to him that on
25/01/02 the entire Patiala House Court including his Court had
Crl. A. Nos. 811/2007,
been sealed by the security personnel. To PW-18 ACP Rajbir Singh
it was also suggested, which was also denied by the witness, that
these accused were not produced in the chamber of ACMM and
instead the Naib Court had brought the proceedings and got signed
from the accused ‗in the court'. Although in the cross-examination
of PW-18 ACP Rajbir Singh it was further put to him that he had got
the signatures of the accused persons on confessional statements
‗under duress and force' but when statements of the two accused
were recorded under Section 313 Cr.P.C. this plea was abandoned
and what plea they took has already been noticed. At that time
nothing was said by them that PW-18 had coerced them in order to
get their signatures on the confessional statements. The accused,
in any case, have not spelt out as to how and in what manner and
by whom they were made to sign pre-written papers. Here, we may
refer to a decision of the Supreme Court in ―S.N.Dube vs N.B. Bhoir
and Ors.‖, 2000(2) SCC 254, wherein also the accused against
whom their confessional statement under Section 15 of TADA were
being used against them had claimed that their confessions were
obtained by the police officer after exerting coercion and physical
and mental torture. The Supreme Court refused to accept the said
Crl. A. Nos. 811/2007,
plea of the accused since they had not attributed any specific act
of coercion etc. to the concerned police officer in his cross-
examination. In ―Devender Pal Singh vs State‖, AIR 2002 SC 1661,
also similar view was taken and the relevant lines from para no. 10
of that decision are extracted below:-
"10.............A mere statement that requisite procedures
and safeguards were not observed or that statement was
recorded under duress or coercion, is really of no
consequence. Such a stand can be taken in every case by
the accused after having given the confessional statement.
It could not be shown as to why the officials would falsely
implicate the accused. There is a statutory presumption
under Section 114 of the Evidence Act that judicial and
official acts have been regularly performed. The accepted
meaning of Section 114(e) is that when an official act is
proved to have been done, it will be presumed to have
been regularly done. The presumption that a person acts
honestly applies as much in favour of a police officer as of
other persons, and it is not judicial approach to distrust
and suspect him without good grounds therefor. Such an
attitude can do neither credit to the magistracy nor good to
the public. It can only run down the prestige of police
administration.....".(emphasis laid)
The Supreme Court in the same judgment had in para no.6
made a reference to its earlier decision in ―Jayawant Dattatray
Surayarao vs State of Maharashtra‖, 2001(10) 10 SCC 109,
wherein it had also accepted the position that there could be some
cases where the power is misused by the police but then had also
Crl. A. Nos. 811/2007,
observed that such a contention can be raised in almost all the
cases and it is for the Court to decide to what extent the said
statement is to be used.
42. At least, the accused admit that they had signed on papers
on which something was written. They have not claimed that they
had not gone through those papers or were prevented from doing
that. Nor any such grievance was raised by the accused before the
Designated Court whenever they were produced there by the
investigating officer seeking their police/judicial remand or even
when they had appeared in Court after taking of cognizance by the
Designated Judge and also when they were supplied the
documents submitted with the charge-sheet including the
statements recorded by PWs 1 and 5. In Mohd. Amin's case(supra)
also the accused persons had not disputed their signatures on their
confessional statements and taking that fact into consideration as
also the fact that the allegations made by them regarding coercion,
torture etc. after more than one year of recording of confessions it
was held that the plea of torture etc. was afterthought and
products of ingenuity of their advocates and that statements made
Crl. A. Nos. 811/2007,
by them under Section 313 Cr.P.C. were also the result of
afterthoughts. In the present case, it is also significant to note that
none of the accused had taken a plea during investigation stage
that after their arrest they were tortured or in any other way
compelled to sign the documents purporting to be their
confessional statements. And if at all there had been any coercion
from the police they could have easily informed the ACMM that
they had not made the confessional statements which had been
placed before him by the police for getting the same confirmed
from them. They did not do that. It is also worth noticing that the
prosecution case was that only two of the accused had volunteered
to make confessional statements and the other accused had not
shown any such willingness. Now, if the confessional statements
of the accused were to be fabricated the police could have
prepared similar statements of other five accused also. That was
not done. The contradictory stands taken by the accused also lend
assurance to the prosecution case that the two accused had made
confessional statements before PW-1 and that too voluntarily. In
Jameel Ahmed's case(supra) the Supreme Court had also observed
that an accused taking contradictory stands in respect of his
Crl. A. Nos. 811/2007,
confessional statement by first claiming that his signatures were
taken on blank papers and then later on at the stage of recording
of his statement under Section 313 Cr.P.C. that his signatures were
taken on pre-written papers would show that the statement was in
fact made by the accused. Similar view was taken by the Hon'ble
Supreme Court in Mohd. Amin's case(supra) also. In fact, in that
case the Hon'ble Supreme Court had found contradictory
statements in respect of the confessional statement made by the
accused at the stage of recording of his statement under Section
313 Cr.P.C. and in his Special Leave Petition and taking note of the
contradictory stands the Hon'ble Supreme Court rejected the
argument that the confessional statement was not a voluntary one.
So, we are not inclined to accept these pleas of the accused
persons, which are clearly an afterthought, in preference to the
sworn testimony of the DCP and ACMM who had no axe to grind
against the accused persons or any reason whatsoever to fabricate
their confessional statements. The confessional statements were
recorded by the DCP after due compliance of all the procedural
safeguards enumerated in Section 32 of POTO and in a free
atmosphere and as has been noticed already after recording of
Crl. A. Nos. 811/2007,
those statements the two accused had been remanded to judicial
custody on 24th January itself.
43. The Designated Judge has although discarded the
confessional statements but in fact, a perusal of para no.59 of the
impugned judgment shows that the learned Designated Judge was
really not confident about her conclusion regarding the
confessional statements inasmuch as in this para the learned
Judge herself relied upon some part of the confessional statements
regarding the prosecution case that the accused-appellants were
indulging in terrorist activities of collecting explosives for causing
explosions in Delhi on the route of Republic Day parade as well as
receiving hawala money on the instructions of one Abu Amaar. The
Judge also observed that the confessional statements were
uncorroborated and that ―there is nothing on record to suggest that
any enquiry was conducted by the IO of the case.......to verify the
confession made by both the accused.......‖. Now, whether a
confessional statement requires some corroboration or not is one
thing and whether statement was made at all by an accused and
that too voluntarily is another thing. If the statement is found to be
Crl. A. Nos. 811/2007,
not made voluntarily then no amount of corroboration can make it
a voluntary one. In view of the contradictory observations of the
learned Designated Judge we shall now have to consider the
reasons given in support of the final conclusion regarding the two
confessional statements. The grounds of challenge to those
confessional statements put forth on behalf of these two accused
persons before the Designated Court and which were accepted also
were re-iterated before us also by the learned counsel for these two
accused-appellants. One of the reasons for rejecting the
confessional statements given by the Designated Judge was that
before recording of the statements PW-1 DCP Balaji Srivastava had
not given any cooling-off time to the two accused to re-consider
their decision to make confessional statements and then to decide
whether they still wanted to go ahead with the making of
confessional statements and that it would have been appropriate if
the DCP had given a day or two days time to the accused to
reconsider their decision but that was not done which showed that
the ACP as well as the DCP were in a hurry to record the
confessional statements. This observation of the learned
Designated Court, in fact, shows that it was at least not doubting
Crl. A. Nos. 811/2007,
the recording of the statements of the accused by PW-1 as had
been deposed by him and the stand of the accused that they had
not made any confessional statements was also not acceptable to
the Court. Now, whether there were any circumstances suggesting
that the statements were not made by the accused voluntarily
need s to be considered. Ms. Kamini Jaiswal, learned counsel for
appellants Mohd. Kumhar and Adil Nazir Keen, in order to lend
strength to this reasoning of the Designated Judge cited one
judgment of the Hon'ble Supreme Court in ―State of Rajasthan Vs.
Ajit Singh & Ors.‖, 2008 (1) SCC 601 wherein it was observed by
the Supreme Court that time of 15 to 30 minutes given to the
accused by the police officer for reflection before recording the
actual confessions was not sufficient cooling-off time. In the
present case, learned counsel argued, even that much time was
not given to the accused to re-consider their decision of making
confessional statements. However, in our view this conclusion of
the Designated Court cannot be sustained since it overlooked the
fact that it was not even the case of accused Mohd. Kumhar and
Adil Nazir Keen that they were produced before the DCP and he
had immediately asked them to state whatever they wanted to
Crl. A. Nos. 811/2007,
confess. Their plea was of total denial regarding making of
confessional statements. In any case, for this reason the
confessional statements could not be discarded in view of the
judgment of the Hon'ble Supreme Court reported as 2002 (VIII)
SCC 73, ―Ranjit Singh Vs. State of Punjab‖ wherein it had been
held that ―In a given case, depending on facts, the recording officer
without granting any time may straight away proceed to record the
confessional statement ......‖. This judgment has been referred to
even in the decision of the Hon'ble Supreme Court in Ajit Singh's
case(supra) cited by Ms. Jaiswal. On this aspect learned prosecutor
had also cited one judgment of this Court reported as 2006 (1)
JCC 382, ―Harbans Singh Vs. State‖ wherein a similar objection
had been taken on behalf of the accused that his confessional
statement should be considered to be involuntary because
sufficient cooling-off time was not given to him by the DCP before
recording the confessional statement. That argument was not
accepted by the Division Bench on the ground that since the
accused had not retracted from his confessional statement the
same could not be disbelieved or discarded from consideration
because of the failure of the DCP to defer recording of the
Crl. A. Nos. 811/2007,
confessional statement to give an opportunity to the accused to
reconsider his decision. This view was upheld in appeal by the
Hon'ble Supreme Court in its judgment reported as JT 2007 (3) SC
490, ―Harbans Singh Vs. State‖. So, in view of the judgment of this
Court also the finding of the learned Designated Judge discarding
the confessional statements for the said reason have to be
reversed since accused persons have not even claimed that they
had at any stage retracted from the confessions which the
prosecution was relying upon and which we have already found to
have been made by them.
44. Learned Designated Judge also held that the confessional
statements of both the accused were manipulated and fabricated
documents and that was evident from the fact that both the
statements were to a large extent re-production of each other and
learned counsel for the accused had pointed out that even certain
clerical mistakes in one statement had been copied as it is in the
other statement. Even for this kind of reason the Apex Court had
in ― Mohamed Amin vs CBI‖, 2008 (14) SCALE 240, refused to
reject the confessional statements as being involuntary. In fact,
Crl. A. Nos. 811/2007,
the Supreme Court in ―Ravinder Singh v. The State of
Maharashtra‖,2002 (9) SCC 55, has held that while determining
whether the confessions were voluntary or not, the court is not
required to examine one confessional statement with reference to
the confessional statement of the co-accused. As noticed already,
the legal position in respect of the confessional statements
recorded under POTO/POTA is that confessional statement of one
accused cannot be used against co-accused even if both are being
tried together for the same offences and the confessional
statement can be used only against the maker and the same
cannot be used even to corroborate any other evidence against the
co-accused who might not have made any confessional statement
nor can the confessional statements of different accused persons
in the same trial can be used to corroborate each other's
confessional statement. Thus, in case one confessional statement
is compared with another one that would show that the two
confessional statements are being considered either for the
purpose of corroborating each other or contradicting each other,
which is not permissible. So, in the present case the Designated
Judge could not have discarded the confessional statements of
Crl. A. Nos. 811/2007,
accused Mohd. Afzal Kumhar and Adil Nazir Keen after comparing
the two statements and noticing certain similarities in some paras
of the two confessional statements. Another objection taken is that
when their so-called confessional statements were recorded the
two accused were in police custody and PW-1 was supervising the
investigation also and for this reason also the same should be
considered to be involuntary. However, similar objection when
raised before the Apex Court in Mohamed Amin's case(supra) also
but the same was not considered to be a good reason to discard
the confessional statement and for this conclusion the fact that the
recording officer had complied with all the procedural safeguards
before recording the statements was considered to be a factor for
rejecting this objection. Same is the position here. PW-1 had
observed all the procedural safeguards before recording the
statements of the two accused.
45. Other reasons given by the Designated Court for not believing
the confessional statements was that the same had been recorded
on a computer but had not been saved in the hard disc and also
because there was a non-compliance of the provisions of Section
Crl. A. Nos. 811/2007,
65(b) of the Indian Evidence Act; the personal assistant of DCP
Srivastava who had admittedly recorded the statements on the
computer had not been examined by the prosecution; the
prosecution had not proved whether the request allegedly made by
the ACP to DCP Srivastava on 22-01-2002 conveying to him the
willingness shown by the accused persons to make confessional
statements and requesting the DCP to record the same was oral or
written and DCP Srivastava had recorded the statements not in his
own office but in the office of the investigating officer and no
justification had been tendered as to why DCP had gone to the
office of ACP for recording the confessional statements.
46. In our view, in the facts and circumstances of this case, the
confessional statements of accused Mohd. Afzal Kumhar and Adil
Nazir Keen could not be rejected for any of the afore-said reasons
also given by the learned Designated Judge. Just because there is
no evidence whether ACP Rajbir Singh had informed the DCP
orally or in writing on 22/01/02 about the willingness shown by
the two accused persons to make confessional statements it
cannot be inferred that the statements recorded by the DCP were
Crl. A. Nos. 811/2007,
not made voluntarily by the accused. DCP(PW-1) had deposed that
the ACP had informed him on 22/01/02 about the willingness of
the two accused to make confessional statements and ACP(PW-
18) had also deposed to that effect. In their cross-examination it
was not challenged that there was no such intimation given by the
ACP to the DCP and we have no reason to disbelieve them. In fact,
it was not even suggested to PW-18 ACP Rajbir Singh in cross-
examination that accused Mohd. Afzal and Adil Nazir had never
expressed to him their desire to make confessional statements.
Similarly, because of the non-examination of the personal assistant
of PW-1, who admittedly had recorded the statements on the
computer, no adverse inference against the prosecution could be
drawn, as has been done by the Designated Judge observing that
he was the best witness to prove as to whether the statements had
been made by the accused voluntarily. How could the personal
assistant of the DCP say whether the statements being made by
the accused and which he was typing on the computer were being
made voluntarily by the accused or not. The prosecution having
shown from the evidence of the DCP and the ACMM that they had
done everything what they were expected to do before recording
Crl. A. Nos. 811/2007,
the statements of the accused the burden shifted to the accused
to show that there was a possibility of their having been forced to
make the confessional statements. We have already held that
nothing has been brought on record from which any such inference
could be drawn against the prosecution. Similarly the recording of
the statements by the DCP in the office of ACP cannot be said to
be a ground to reject the same. It could have been elicited from the
DCP in his cross-examination as to why he had not chosen his own
office for that purpose and then he would have given his reason for
that. That was not done. The accused persons have not been able
to show as to how their statements stood vitiated for this reason.
47. The computer had been used only as a sophisticated typing
machine for recording the statements. The typewriter is a thing of
the past. After typing on the computer, print-outs of the statements
were taken and the accused had signed the same only after going
through the contents and not on blank papers. They have not
claimed that they had not read the contents of the print-outs. The
police was not supposed to save those statements in the computer
and because of that it could also not be said that there was non-
Crl. A. Nos. 811/2007,
compliance of Section 65 of the Evidence Act. In any case, that
cannot be said to be a circumstance having anything to do with the
voluntariness of the statements in question. It is not the case of the
accused that they had stated something else before the DCP and
what the print-outs showed had not been stated by them. So,
whether their statements were saved or not in the computer
becomes irrelevant. Similar objection was taken before the
Supreme Court in ―Devender Pal Singh vs State‖, AIR 2002 SC
1661, wherein also confessional statement was recorded on a
computer and that statement was neither saved nor was
transferred to a floppy. Rejecting that objection It was observed
that ―Merely because the confessional statement was recorded in a
computer, it cannot be ground for holding that the confessional
statement was not voluntary.‖ Another objection taken in the case
on behalf of the accused was that language of the statements of
both the accused was almost identical and that was also a
circumstance which showed that statements were not made
voluntarily but for that reason also confessional statements were
not discarded in the said case.
Crl. A. Nos. 811/2007,
48. We are, therefore, of the view that the learned Designated
Judge was not right in discarding the confessional statements of
accused Mohd. Afzal Kumhar and Adil Nazir Keen recorded by PW-
1 DCP Balaji Srivastava. We have already re-produced the
confessional statements of these two accused which have to be
treated as substantive evidence. Now the question is whether the
admissions made by these two accused in their confessional
statements make out the offences of which they have been
convicted by the Designated Court. On this aspect the main
emphasis of the learned counsel Ms. Kamini Jaiswal was that as
far as the offences punishable under Sections 121-A and 122 IPC
are concerned the same are certainly not made out and these two
accused have been convicted wrongly for these offences since
mere recovery of explosive material and cash would not constitute
the offence of conspiracy to wage war against the Government of
India. In support of the submission that offence of conspiracy to
wage war against the Government of India is in any event not
made out against the accused Ms. Kamini Jaiswal placed strong
reliance upon one judgment of Apex Court in ―Nazir vs State of
Delhi‖,(2003) 8 SCC 461, one of Bombay High Court in ―Javed vs
Crl. A. Nos. 811/2007,
State of Maharashtra‖, 2007 Crl.L.J.2006, one decision of Patna
High Court in ― Mir Hasan vs The State‖, AIR 1951 Patna 60 and
one judgment of Rangoon High Court in ― Aung Hla vs Emperor‖,
AIR 1931 Rangoon 235. The reason for laying extra emphasis on
the challenge to the convictions for these offences under IPC
appears to be that the two accused have been awarded the
sentence of imprisonment of ten years(only) under Sections 121-A
and 122 IPC while in respect of other offences they have been
awarded sentence of imprisonment of even lesser periods and in
case we set aside their conviction under Sections 121A and 122
IPC they could straightaway walk out of the jail as they have
already remained in jail for that period.
49. As noticed already, accused Mohd. Afzal Kumhar and Adil
Nazir Keen have been convicted under Sections 121-A and 122 IPC
as also under Sections 3(3), 4(b) and 22(2) of POTA and also under
Sections 4(b)(ii) and 5(b) of the Explosive Substances Act,1908. In
their confessional statements these two accused had clearly
admitted that they had collected RDX and other explosive material
etc. from different persons for preparing ‗Improvised Explosive
Crl. A. Nos. 811/2007,
Devices'(IEDs). The prosecution had examined the ballistic
experts(PWs3 & 4) from Central Forensic Science Laboratory(CFSL)
who had testified and proved their reports Ex.PW-3/A and Ex.PW-
4/A to the effect that the putty like material examined by him
(which according to the prosecution was recovered from the person
of these two accused) confirmed the presence of
RDX/PETN/AMMONIUM NITRATE and that the detonators, which
were also examined, and ‗RDX', ‗PETN' and Ammonium Nitrate'
can form the components of ‗IMPROVISED EXPLOSIVE DEVICE'(IED)
and therefore were ‗Explosive Substance' as defined in the
Explosive Substances Act,1908. It was also opined that the other
powdery material(which was recovered from room no.3 of Karan
Hostel) confirmed the presence of ―Potassium Chlorate‖ which can
form a component of ―Improvised Explosive Mixture‖. The two
accused had admitted that they had collected RDX etc. for causing
explosions on the route of Republic Day Parade which would
compel the Government to cancel the Republic Day Parade.
However, before they could accomplish their nefarious design they
came to be apprehended on 14/01/02 and the explosive material
also came to be seized before it could be utilized for the intended
Crl. A. Nos. 811/2007,
act of terrorism. In the confessional statements these accused had
also admitted that they were arrested on 14/01/02 alongwith RDX
etc. Thus, these two accused had by collecting highly explosive
material for being used for the aforesaid purpose intended to be
achieved by the and which certainly was a ‗terrorist act' as defined
in Section 3(1) of POTA, had conspired to commit a ‗terrorist act'
and, so, had committed the offence punishable under Section 3(3)
of POTA. And being in unauthorised possession of RDX, which
undisputedly is capable of mass destruction, is also a ‗terrorist act'
punishable separately under Section 4(b) of POTA and since these
two accused had been found in unauthorized possession of RDX
they also committed the offence punishable under Section 4(b) of
POTA and were rightly convicted for that offence also. The
confessional statements of accused Mohd. Afzal Kumhar and Adil
Nazir Keen also make out a clear case of the offence punishable
under Section 22(2) of POTA since they had categorically admitted
that huge amount of money in cash recovered from them as also
from room no.3 of Karan Hostel on 14/01/02 had been received
by them from hawala operators for being used for committing acts
of terrorism. The two accused have been rightly convicted under
Crl. A. Nos. 811/2007,
Sections 4(b)(ii) and 5(b) of the Explosive Substances Act,1908
also as they had admitted in their confessional statements the
possession of ‗special category of explosive substance' as defined
in the said Act and also that the possession thereof was to cause
serious injury to property and endanger lives of the people
watching the Republic Day Parade.
50. We now come to the conviction of accused Mohd. Afzal
Kumhar and Adil Nazir Keen under Sections 121-A and 122 IPC.
Section 121-A IPC reads as under:-
―121-A. Conspiracies to commit offences punishable
by section 121.---- Whoever within or without India
conspires to commit any of the offences punishable by
section 121, or conspires to overawe, by means of
criminal force, or the show of criminal force, the
Central Government or any State Government shall be
punished with imprisonment for life or with
imprisonment of either description which may extend
to ten years and shall also be liable to fine.
Explanation.--- To constitute a conspiracy under this
section, it is not necessary that any act or illegal
omission shall take place in pursuance thereof.‖
And Section 121 IPC reads like this:-
―121. Waging, or attempting to wage war, or abetting
waging of war, against the Government of India-----
Whoever, wages war against the Government of India,
Crl. A. Nos. 811/2007,
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.‖
Section 122 IPC reads as under:-
―122. Collecting arms, etc., with intention of waging
war against the Government of India----Whoever
collects men, arms or ammunition or otherwise
prepares to wage war with the intention of either
waging or being prepared to wage war against the
Government of India, shall be punished with
imprisonment for life or imprisonment of either
description for a term not exceeding ten years, and
shall also be liable to fine.‖
51. Now, what amounts to ‗waging war' is not defined in the
Indian Penal Code nor in TADA, POTA or any other statute.
However, when the Parliament House Complex was attacked by
some terrorists in December, 2001 some persons came to be tried
for different offences including that of waging war against the
Government of India. When the appeals against convictions of the
accused of that case came up before the Supreme Court the
question as to what is ‗waging war' also came to be considered
and Supreme Court then gave its views on this aspect after taking
into consideration some earlier judgments dealing with the
offence of ‗waging war'. That case is ―State vs Navjot Sandhu etc.‖,
Crl. A. Nos. 811/2007,
AIR 2005 SC 3820, and it will be useful to make a reference to
the relevant observations in this judgment. This is what was
observed by the Supreme Court:-
―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."
.....................................................................................
.
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......................
Crl. A. Nos. 811/2007,
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 121A 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...........................
.............................................................................................
.............................................................................................
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
.............................................................................................
.............................................................................................
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
Crl. A. Nos. 811/2007,
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.
.............................................................................................
.............................................................................................
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"?
.............................................................................................
......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 ...................................................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
Crl. A. Nos. 811/2007,
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. ................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
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 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.........................................................The undoubted
objective and determination of the deceased terrorists
Crl. A. Nos. 811/2007,
was to impinge on the sovereign authority of the nation
and its Government...........................................................
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.....................‖
(emphasis laid)
52. In our view, applying the aforesaid principles enunciated by
the Apex Court the offence of conspiracy to wage war against the
Government of India by accused Mohd. Afzal Kumhar and Adil
Nazir keen is clearly made out on the basis of facts admitted by
these two accused in their confessional statements. They had
categorically admitted that they had come to Delhi from Kashmir
to strike terror in the city on the occasion of Republic Day
celebrations and in order to accomplish that mission they had
collected huge quantity of RDX and other explosive material as well
as lakhs of rupees and had kept the same in room No.3 of Karan
Hostel which was in addition to the RDX and cash recovered from
both of them on 14.1.2002 when they had reached Karan Hostel
after collecting explosive material and cash from different persons
whose reference had been given to them(accused) by
Crl. A. Nos. 811/2007,
their(accused's) leader sitting in Kashmir. They had also clearly
admitted that the explosive material which they had collected was
to be used for causing explosions on the route of Republic Day
parade. So, quo animo of these accused in camping at Karan
Hostel was to prepare themselves for the salvo on the Republic
Day. Now, ‗Republic Day' has a great significance and importance
in the history of independent India. After gaining independence
from the British Raj on 15th August,1947 the Constitution of
indpendent India came into force on 26th of January, 1950 and
India declared itself as a ―Republic‖ on that date and since then
the entire country celebrates Republic Day on 26th day of January
every year. In the capital city of Delhi Republic Day celebrations are
held at the Rajpath. Republic Day Parade is witnessed by the
President of India, Vice President, Prime Minister and invariably on
that day Head of some foreign country also witnesses the Republic
Day Parade at Rajpath. Besides these dignitaries, the Chief Justice
of India and other Judges of the Supreme Court, Judges of the High
Court, Cabinet Ministers, senior bureaucrats also are present at the
Rajpath on 26th January to witness the Parade. Lakhs of members
of the general public also witness the parade. Before 26th January
Crl. A. Nos. 811/2007,
full dress rehearsal is also carried out of the actual celebrations a
couple of days before when also many dignitaries remain present
to witness the parade and other events. Now, imagine, what the
accused persons had planned to do on 26th January, 2002. They
had conspired to explode bombs etc. in the presence of all these
dignitaries. One shudders at the very thought of the scene of mass
destruction which would have taken place had the accused-
terrorists succeeded in their plans. Accused Mohd. Afzal and Adil
Nazir had admitted that they had the instructions from high-ups of
their organization(Let) to cause explosions on the route of the
Republic Day Parade. As observed at the outset, It does appear to
us that the task which the terrorists could not accomplish while
attacking the Parliament House Complex on 13th December,2001
was again attempted to be accomplished by the present duo even
though they belong to a separate militant outfit LeT(which fact the
two accused had admitted in their confessional statements) while
the terrorists who had planned to capture or blow off the
Parliament building belonged to a terrorist organization called
JKLF. This is not a case where the material against the accused for
their convictions under Section 121A is only recoveries of RDX
Crl. A. Nos. 811/2007,
from them, as was the submission of Ms. Jaiswal. So, the
judgments cited by Ms. Jaiswal in support of her submission that
offences under Sections 121A and 122 IPC are not made out are
of no help to these two confessing accused persons. The purpose
of their collecting RDX etc. was to over-awe the Central
Government by use of criminal force etc. and so a terrorist act
which, as per the above extracted views of the Supreme Court in
the Parliament Attack case also would fall within the purview of
‗waging war against the Government of India' conspiracy to
commit act would come under the dragnet of Section 121A IPC.
For the same reasons the offence under Section 122 IPC is also
made out against accused Mohd. Afzal Kumhar and Adil Nazir
Keen.
53. So, as far as accused-appellants Mohd. Afzal Kumhar and
Adil Nazir Keen are concerned their confessional statements by
themselves are sufficient to sustain their convictions. However, the
submission of the learned Additional Public Prosecutor that since
all the four convicted accused had been charged and tried together
for different offences the confessional statements made by
Crl. A. Nos. 811/2007,
accused Mohd. Kumhar and Adil Nazir Keen could be treated as
substantive evidence even against their co-accused Bilal Ahmed
Mir and Ansar Ahmed Dar cannot be accepted in view of the
decision of the Supreme Court in the Parliament attack case
(supra) wherein also a similar submission was made on behalf of
the State but the same was rejected. This is what the Supreme
Court observed in para no. 10 of the judgment while rejecting the
plea of the prosecution that confessional statement of one accused
could be used against co-accused also:-
―Use of confession under POTA against co-
haccused.
Now, let us examine the question whether Section
32(1) of POTA takes within its sweep the confession of
a co-accused. Section 32(1) of POTA which makes the
confession made to a high ranking police officer
admissible in the trial does not say anything explicitly
about the use of confession made by co-accused. The
words in the concluding portion of Section 32(1) are:
―shall be admissible in the trial of such person for an
offence under this Act or rules made thereunder.‖ It is,
however, the contention of the learned Senior Counsel
Shri Gopal Subramanium that Section 32(1) can be so
construed as to include the admissibility of confessions
of co-accused as well.................. On a plain reading of
Section 32(1), the confession made by an accused
before a police officer shall be admissible against the
maker of the confession in the course of his trial..........
We are, therefore, of the view that having
regard to all these weighty considerations, the
confession of a co-accused ought not be brought within
the sweep of Section 32(1)........‖(emphasis supplied)
Crl. A. Nos. 811/2007,
54. It was also the submission of the learned Additional Public
Prosecutor Mr. Dudeja that even if the confessions of accused
Mohd. Afzal Kumhar and Adil Nazir Keen are not to be read as
substantive evidence against accused Ansar Ahmed Dar and Bilal
Ahmed Mir there is other sufficient incriminating material also
against them brought on record from which the prosecution case
against them also stands fully established and relying upon that
material only the Designated Court has convicted not only these
two accused but even the conviction of Mohd. Afzal and Adil Nazir
Keen was also based on that material alone. Mr. Dudeja
submitted that that material against all the four appellants is the
recovery of huge quantity of explosive material and Indian currency
of almost 35 lacs of rupees from their possession on 14-01-2002.
Mr. Dudeja submitted that the prosecution had adduced sufficient
reliable evidence to prove those recoveries and accepting the same
the learned Designated Judge had rightly concluded that from
those recoveries the only inference which could be drawn was that
all the four accused-appellants had commited various offences
including that of conspiring to wage war against the Government of
Crl. A. Nos. 811/2007,
India. Regarding the said recoveries relied upon by the prosecution
and accepted by the learned Designated Judge the submission
made on behalf of the appellants was that those recoveries had
not been established beyond reasonable doubt and that doubt
regarding genuineness of those recoveries was further
strengthened from the evidence adduced by the accused persons
in support of their defence that they were already in illegal custody
of the police from 02/01/02 onwards and so there was no
question of their being apprehended on 14/01/02. As far as
accused-appellant Bilal Ahmed and Adil Nazir are concerned an
additional submission was made that even if it were to be
accepted that there was some recovery of explosive material and
cash from room no.3 of Karan Hostel these two accused at least
cannot be held guilty for any offence because of those recoveries
since the prosecution's own case was that those recoveries were
pursuant to a joint disclosure made by them.
55. We shall now examine the evidence of recovery witnesses.
We start with the evidence of PW-19 Inspector Mohan Chand
Sharma who was the leader of the raid team which had gone to
Crl. A. Nos. 811/2007,
Karan Hostel in the afternoon of 14-01-2002 on getting an input
from Central Intelligence Agency that some Kashmiri boys had
collected explosive material in Karan Hostel to be used for
spreading terror and panic in the public during the Republic Day
celebrations. The relevant part of the examination-in-chief of PW-
19 is reproduced hereunder:
―.....On 14-1-2002 I received a specific information
through informer in my office at Lodhi Colony that
some militants of Lakshar-e-Toiba were staying at
Karan Hostel Kotla Mubarakpur and they were having
explosive substances and hawala money. I made D.D.
entry containing this information. However in order to
keep secrecy I did not mention the correct address and
name and mentioned only south Delhi. The D.D. entry
made by me in this regard is at Sr. No.12 of the D.D.
register brought by me. Copy of the D.D. is Ex.PW-
19/A (Original seen and returned). On this information
S.I. Sanjay Dutt, SI Gobind Shrama, S.I. Hardaya
Bhushan, S.I. Sushil, ASI Anil Tyagi myself and other
staff in all 16-17 officials reached Gaini Market Kotla
Mubarakpur at about 1.30 p.m. Informer took me to
Karan Hostel and showed me the place. It was told to
us by the informer that there were four militants
staying at room NO.3 of Karan Hostel K.M.pur. I got
confirmed this news and learnt that while two were
still inside the room and two had gone out. We
decided to wait for the other two persons and to keep
watch around the hostel. I called owner of Karan
Hostel Mr. Ram Kumar, and enquired from him. He
told that one Bilal used to live in the room No.3 and for
few days three more boys were staying with him. I
deployed staff at different place around Karan Hostel
to keep watch. Ram Kumar was with me. At about 8
p.m. two kashmiri boy holding bags in their right hand
came in front of Karan Hostel. Ram Kumar identified
them as the same boys who were living in the room of
Bilal. We apprehended them and immediately room
No.3 was also raided. The other two occupants of the
Crl. A. Nos. 811/2007,
room No.3 were apprehended. The two persons
apprehended outside were Mohd. Afzal and Adil
present in the court. We took them along with their
bags inside room No.3 of Karan Hostel. The bag in the
hand of was checked and it was found to be contained
Rs.5 lakhs in cash, and 2.280 kg. of RDX and 2
detonators. Similarly the bag of Adil was also checked
and it was found to contain Rs.5 lakhs in cash, 2 kg
RDX and detonators. Bilal and Ansar who were
apprehended from inside the room were interrogated
and they told about two bags lying under the bed of the
room. Those bags were also taken out and checked.
In one bag Rs.14 lakhs cash, 3.900 kgs. of white
explosive substance were found and in the other bag
Rs. 10.90 lakhs cash was found. All these articles
were seized vide seizure memo Ext. PW-8/A and PW-
8/B by S.I. Gobind Sharma. ....‖
56. PW-8 SI Govind Sharma was also a member of the raid
team. Relevant part of his evidence is extracted below:-
―...................On 14.1.02, Insp. Mohan Chand Sharma
recd. a specific information in the office of Spl. Cell that
a boy who was named Bilal concerned with the earlier
information was staying in Karan Hostel in K.P. Pur and
with him, three other Kashmiris were staying and they
were having hawala money and explosive material.........
We reached at Giani Mkt. K.M.Pur at abut 1.30 p.m.
Through our source, we learnt that at that time, in the
hostel, one boy Bilal with him one more boy were there
in the hostel room, while other boys had gone
somewhere.....................We continued our watch around
hostel and at about 8 p.m. two boys came towards
Karan Hostel, and both of them were apprehended at
the pointing-out of Ram Kumar. In their hands, they
were holding bags (in right hand), they were
apprehended with help of police staff. Simultaneously,
we raided room No.3 with the help of police staff and
they were also apprehended from room No.3 of hostel.
Two boys who were caught outside hostel, were Mohd.
Crl. A. Nos. 811/2007,
Kumhar and Adil Nazeer Keen, both are present in court
(correctly identified). The two boys who were
apprehended in the room of hostel are accused Bilal
and Ansar present in court (correctly identified). Two
boys, who were apprehended outside the hostel, were
also brought to room No.3 and contents of bags which
were in their hand, were searched. The bag which was
in hand of Mohd.Afzal Kumhar was of red and white
colour and on it ‗speed pre-paid mobile' was written. It
was checked and in it, Rs.5 lakhs in cash, consisting of
35 packs of Rs.100/- currency notes and 30 packs of
Rs.50/- currency notes. In the bag, were was one
polythene bag on which ‗Mission Kashmir' was written
and some photos. In that poly. Bag, there was a
transparent bag, which contained RDX, it was weighed
and found to be 2.280 kgs. In the side pockets of bag
of Mohd. Afzal Kumhar two detonators were found. Bag
in the hand of accused Adil was of Maroon colour on
which ‗Jam Park' and other things were written, it was
also opened and checked and in it Rs. 5 lakhs currency
notes, 50 pacs. Of hundred currency notes were found.
In that also, there was one black poly. Bag and in that
poly. Bag, two kgs. of RDX was found and in the side
pocket of that bag of Adil Nazir, two detonators were
found. 40 gms. of contents were taken separately as
sample from both polythene bags i.e. of Mohd. Afzal
Kumhar and Adil Nazir Keen and were sealed in plastic
packs, the detonators recovered from two accused
persons, were wrapped and sealed in plastic jars
.................................
Accused Bilal and Ansar who were apprehended from
inside the hostel room were interrogated and during
interrogation they told that under bed lying in the room,
they had kept bags containing explosives and money.
At the pointing-out of these two accused persons, one
green colour bag was recovered from under the bed
towards bathroom. It was checked and a white
polythene was found containing 3.9 kgs. of white
explosive material and Rs.14/lakhs cash was also
found (fourteen lakh).................................‖
57. PW-12 SI Sanjay Dutt was another member of the raid
Crl. A. Nos. 811/2007,
team. This is what also deposed regarding the raid proceedings:-
―.......We reached in K.M.Pur near Giani Market about
1.30 p.m. and collected there........................ At about 8
p.m. two boys were seen approaching Karan Hostel
who were holding bags in their hands, on seeing them
Ram Kumar told us that these were the same boys,
who were staying with Bilal. Those two boys were
apprehended at the entry gate of Karan Hostel and
their names were found out to be Afzal and Adil. Both
are present in court(correctly identified).
Simultaneously, we raided room no. 3 of Karan Hostel
and apprehended two boys, who were inside the room,
they were Bilal and Ansar, both accused present in
court(correctly identified).Thereafter the bags hold by
Afzal and Adil were checked. Afzal was having red
colour bag on which ‗speed pre-paid mobile' was
written and was found to contain Rs. 5 lakhs in cash
and one polythene bag on which ‗mission kashmir'
was written and on checking the poly bag, it was found
to contain one more transparent poly bag in which
black and brown kneaded material was found which
was RDX. It was weighed and found to be 2.280 Kg.
From the side pocket of bag one transparent
polythene bag was found in which there were two
electronic detonators, they were bound together with a
tap. Then we checked bag of Adil. It was maroon
colour bag on which ‗Gems Park' was written and in
that bag also Rs. 5 lakhs cash and a black colour poly
bag was found in which two kgs. RDX was found in the
side pocket of that bag also, a transparent bag
containing 2 detonators was found. Out of the RDX
recovered from 2 bags a sample of 10
gms.......................................................Bilal and Ansar,
who were apprehended in room no. 3 had pointed out
towards a bag lying uynder the bed which was towards
the bathroom side of the room and another bag lying
under the other bed opposite that bed, which was of
blue colour. Both these bags were checked in green
colour bag, an amount of Rs. 14 lakhs in cash and in
a poly. white coloured explosive material was found
which on weighing was found to be 3.9 kgs in the
second blue colour bag, Rs. 10.9 lakhs cash was
recovered,.........‖
Crl. A. Nos. 811/2007,
58. The relevant part of the chief-examination of PW-16 ASI Anil
G. Tyagi is re-produced below:
―On 14-1-2002, I was working with Spl. Cell Lodhi
Colony. On that day, I had joined raiding party. It
was headed by Insp. Mohan Singh at his instructions.
I along with other team members reached Kotla
Mubarakpur at about 1.15-1.30 p.m. Since the
information was that one kashmiri boy was taying in
hostel i.e. room no. 3 of Karan Hostel K.M. Pur in
Prasadi Gali and three more kashmiri boys used to
come to him the raiding party was divided in small
groups and was to keep watch around the hostel.
Ram Kumar the owner of the hostel was called by Insp.
Mohan Chand Sharma around 2.00 p.m. He was
enquired and he informed that one kashmiri boy called
Bilal lives in room no. 3 of his hostel and three more
kashmiri boys were those days staying with him. He
also told that at that moment there were only two boys
in the room and two were outside the room. We kept
watch continuously around the hostel and at about 8 I ,
Mohan Chand Sharma, SI Sanjay Dutt, SI Gobind
Sharma were standing near the gate of hostel with
Ram Kumar owner of the hostel. When two boys
coming with bags hanging on their shoulders coming
and Ram Kumar pointed out towards those boys
saying that two were same who were staying in the
hostel in the room of Bilal. We apprehended both of
them at the hostel gate as pointed out by Ram Kumar.
Rest of the team went inside the hostel and
apprehended the two boys who were inside the room
no. 3 of hostel. The two boys apprehended outside
were also taken to that room no. 3. The two boys who
were apprehended outside disclosed their names as
Mohd.Afzal Kumhar and Adil Nazir Keen. The bag
carried by Mohd. Afzal Kumhar was checked and it
contained cash amount of Rs. 5 lakh and a polythene
containing something and on polythene ‗Mission
Kashmir' was written. The polythene was checked and
in it another transparent polythene was found
containing black and white colour kneaded explosive
Crl. A. Nos. 811/2007,
material. From the side pocket of the bag in a
polythene wrapped in a tape two detonators were
found. The explosive on weight was found 2.80 kg.
From the bag of the Adil Nazir Keen Rs. 5lakh and
similar explosive material in the polythene and two
electronic detonators on the side pocket were
recovered. The explosive material on weight was
found 2 kg. The sample of 10 gram each was taken
from the explosive material recovered from two bags.
SI Govind Sharma prepared the recovery memo
concerning the recoveries from these two bags. The
recovery memo is Ex. PW-8/A wich beas my signature
at point F on each page. Bilal and Ansar accused
persons were inside the room and they got discovered
two bags from under the bed of the room. From those
two bags a sum of Rs. 24,9000/- cash and explosive
material was recovered. In one bag only cash was
there while in other bag cash and 3.90 kg. of explosive
material was recovered. 10 grams sample was taken
from the explosive and separately sealed.................‖
59. From the evidence of the three police officials which we
have extracted above it is clear that all of them have fully
corroborated each other's version in respect of the raid
proceedings all of them have deposed consistently in respect of
the recoveries of RDX and cash from the possession of accused
Mohd.Afzal Kumhar and Adil Nazir Keen kept in separate bags
which they were carrying on their shoulders at the time of their
apprehension. It has also been consistently deposed by all the
three raid members that from inside room no. 3 of Karan Hostel
there was recovery of more explosive material and cash kept in two
Crl. A. Nos. 811/2007,
bags lying under the bed in that room. As far as accused Mohd.
Afzal and Adil Nazir are concerned, they have in their confessional
statements recorded by PW-1 had admitted that that explosive
material and cash also was obtained by them together and also
that the same were also recovered from room no.3 of Karan
Hostel. These police witnesses had also deposed about the
preparation of packets of samples of the explosive material
recovered, sealing of those packets as also about the sealing of
detonators, preparation of seizure memos at the spot. They were
subjected to extensive cross-examination by different counsel
representing the accused persons in the trial but nothing could be
elicited which could discredit their testimony. It was also the stand
of accused Mohd. Afzal Kumhar and Adil Nazir Keen during the
cross-examination of the investigating officer(PW-18) that he had
on 9th or 10th January, 2002 arrested some hawala operators and
hawala money to the tune of Rs.80-90 lacs recovered from them
and that money had been planted upon the accused in the present
case. This plea of planting, which the learned trial Court has
rejected and in our view very rightly, in fact, negatives the
possibility of innocence of these two accused persons. This shows
Crl. A. Nos. 811/2007,
that they were aware of the activities of the police which persons
involved in criminal activities can only possibly know. It has now
been well settled by a catena of judicial pronouncements of the
Apex Court that evidence of police officials associated in the
investigation of some crime can also be safely relied upon for
basing conviction unless, of course, there are glaring flaws
appearing in their evidence which throw sufficient amount of doubt
regarding their trustworthiness.
60. On behalf of the appellants their counsel had pointed out
certain features in their evidence which according to them cast a
serious doubt regarding the truthfulness of their version of the raid
proceedings. However, we do not think that those features pointed
out by the learned counsel in the prosecution evidence create any
doubt about the correctness of the prosecution case. It had been
submitted by the learned counsel that the prosecution case was
that in the rukka itself prepared by SI Govind Shama (PW-8) it had
been mentioned about the exact weight of the explosive material
recovered from the possession of the accused as well as the exact
weight of the explosive material separated as sample which could
Crl. A. Nos. 811/2007,
not have been done unless the raid officials were carrying with
them the weighing material which admittedly they were not
carrying and after the raid somebody had allegedly gone to fetch
the same but by that time rukka had already been dispatched.
Learned counsel submitted that all this was established during the
cross-examination of the three raid team members and that shows
that, in fact, even the rukka and recovery/seizure memos had
been prepared at the police station and not at the place of raid and
that makes the entire raid proceedings highly doubtful. It was also
pointed out that the apprehension of the accused-appellants on
14/01/02 becomes doubtful also for the reason that in their arrest
memos the date of their arrest is shown as 15/01/02 and not
14/01/02. Another deficiency pointed out with great emphasis
was that there was a discrepancy in the property number of Karan
Hostel shown in the raid documents inasmuch as in the site plan
Ex. PW-8/DA, prepared by PW-17, the place of recovery had been
shown to be 1804/1 while PW-17 SI Sharad Kohli himself had
deposed in evidence that the recovery was made at room no. 3
Karan Hostel, premises no. 1804/2 which fact also, according to
the learned counsel, casts a serious doubt regarding the place of
Crl. A. Nos. 811/2007,
raid allegedly conducted by the police. Same submissions were
advanced before the trial Court also and we are in general
agreement with the reasoning given by the learned Designated
Judge for rejecting these submissions and accepting the
prosecution case in respect of the recoveries of RDX etc. As far as
accused Mohd. Afzal Kumhar and Adil Nazir Keen are concerned
their confessions, referred to already, do not leave any scope for
suspecting the prosecution case and their confessions add extra
strength to the prosecution case against them in respect of all the
allegations levelled against them. As far as the availability of the
weighing equipment etc. with the raid team members is concerned
it could have been elicited from them during their cross-
examination as to when and how the explosive material could be
weighed and when PW-8 SI Govind Sharma was questioned on this
aspect in cross-examination he had said that when proceedings
were going on at the spot one team member had gone to collect
the weights and balance. He did not say that that man had gone
after the ruqqa had been dispatched through SI Anil Tyagi. So, it
cannot be accepted that ruqqa etc. were prepared at the police
station. Nothing, however, could be elicited from any of the police
Crl. A. Nos. 811/2007,
witnesses examined by the prosecution to establish the recoveries
which could render their testimony doubtful. It is the prosecution
case that all the four accused-appellants were arrested from a
place called Karan Hostel in Kotla Mubarak Pur and it is also the
case of the accused-appellant that they were, in fact, arrested from
Karan Hostel only and it is also their admitted case that all of them
were staying in room no.3 of that hostel. So, nothing turns around
the submission of the learned counsel for the appellants regarding
the so-called uncertainty, which in fact is not there at all, regarding
the property from where recoveries were made. By the time
proceedings at the spot continued date changed to 15th January
when formal arrest of the accused was made, as deposed to by
PW-17 SI Sharad Kohli. So, mention of date of arrest of the
accused as 15th January in the arrest memos does not show that
no raid was conducted on 14th January. These are too flippant
grounds of challenge to jettison the formidable prosecution
evidence regarding the recoveries of RDX and cash from the person
of accused Mohd. Afzal Kumhar and Adil Nazir Keen and other
explosive material and cash of about rupees twenty lacs kept in
two bags recovered from room no.3 of Karan Hostel.
Crl. A. Nos. 811/2007,
61. Learned counsel for the appellants had also argued that the
evidence of the police witnesses who have been examined to prove
the recoveries of RDX etc. should not be relied upon since the only
independent witness examined, namely, PW-15 Ram Kumar,
owner of the Karan Hostel, had not supported the prosecution case
regarding those recoveries. However, we are not inclined to reject
the evidence of the three police officials who were the members of
the raid team because of the reason that PW-15 had not deposed
about the recoveries for which purpose he was examined and had
to be cross-examined by the public prosecutor. He however, had
admitted that one day in the month of January,2002 the police had
arrested accused Bilal who was his tenant in Karan Hostel, and his
three associates from room no.3 of Karan Hostel. When cross-
examined by the public prosecutor he stated that he was not sure
whether that was on 14th January,2002. He denied that RDX was
recovered in his presence from the accused but stated that police
had told him that RDX and 34/35 lakhs of rupees had been
recovered from accused persons. He admitted his signatures on
seizure memos in respect of the recoveries of RDX etc. but claimed
Crl. A. Nos. 811/2007,
that he had signed those documents without reading the contents.
It does appear that since this witness admitted his signatures on
documents which showed that he was a witness to the recoveries
he was not telling the truth in Court when he claimed that no
recoveries were made in his presence. And his predicament can be
appreciated. He was being pitted against persons who had been
proclaimed by the police as terrorists. However, when cross-
examined on behalf accused persons nothing favourable for the
accused also could be elicited from him by the defence counsel. In
this regard we can also rely upon the following observations of the
Supreme Court in ―Anter Singh vs State of Rajasthan‖, 2004(10)
SCC 657‖:-
"10. We shall first deal with the plea as to whether evidence
relating to recovery is acceptable when non-official witnesses
did not support the recovery and made departure from the
statements made during investigation. In Modan Singh v. State
of Rajasthan‖ 1978 (4) SCC 435 it was observed that where
the evidence of the investigating officer who recovered the
material objects is convincing, the evidence as to recovery
need not be rejected on the ground that seizure witnesses did
not support the prosecution version. Similar view was taken in
Mohd. Aslam v. State of Maharashtra. It was held even if
panch witnesses turn hostile, which happens very often in
criminal cases, the evidence of the person who effected the
recovery would not stand vitiated................................................‖
Crl. A. Nos. 811/2007,
62. So, we come to the conclusion that the prosecution case
regarding the recoveries of RDX etc. also stands duly established
beyond any shadow of doubt. Those recoveries lend full
corroboration to the confessional statements of accused Mohd.
Afzal Kumhar and Adil Nazir Keen. There is another piece of
corroborative evidence relief upon by the prosecution for landing
assurance to the confessional statements of accused Mohd. Afzal
Kumhar and Adil Nazir Keen. As has been noticed already, both
these accused had claimed in their respective confessional
statements recorded by PW-1 that they had purchased one mobile
phone on 07-01-2002 and cash card no. 98113-36055. The
evidence of the police officials who had raided room no. 3 of Karan
Hostel have all deposed about the recovery of one mobile phone
having the said number from that room. As per the prosecution
case, it was found during investigation that the said mobile phone
had been purchased in the name of accused Adil Nazir Keen.
Evidence of the police witnesses even on this aspect also does not
suffer from any infirmity. When it was put to accused Mohd. Afzal
Kumhar and Adil Nazir Keen while recording their statements
under Section 313 Cr.P.C. that mobile phone having number
Crl. A. Nos. 811/2007,
9811336055 had been purchased by them on the instructions of
Abu Amar(reference to whom was also made in the confessional
statements of these two accused persons and in respect of whom
it was suggested to PW-18 ACP Rajbir Singh in cross-examination
that this person Abu Amar had died in an encounter on 9th January
in J&K and which suggestion also shows that there was some
person by the name of Abu Amar who was known to these two
accused persons and at his instance they had joined LeT for
committing terrorist acts and that fact also confirms the fact that
the confessional statements had actually been made by these two
accused only) their answer was ―I do not know‖. Accused Adil
Nazir Keen, when put a question that he and his co-accused Afzal
Kumhar had purchased one mobile phone having number
9811336055 replied that he was apprehended on 02-01-2002 and
so question of purchasing mobile phone on 07-01-2002 did not
arise. When it was not even put to this accused that mobile phone
had been purchased by them on 07-01-2002 there was no
occasion for him to have on his own stated that there was no
question of his purchasing any mobile phone on 07-01-2002. That
shows that, in fact, he had actually purchased the mobile phone on
Crl. A. Nos. 811/2007,
07-01-2002 as had been admitted by him even in his confessional
statement recorded by PW-1. The purpose for which these accused
had collected lacs of rupees, as inferred by the learned Designated
Judge, was that the same were to be used for terrorist activities
and that very purpose is categorically admitted in the confessional
statements of Mohd. Afzal Kumhar and Adil Nazir Keen.
63. Now, we come to the case against accused-appellants Bilal
Ahmed Mir and Ansar Ahmed Dar in respect of whom we have
already concluded that confessional statements of their two co-
accused cannot be used against them. Learned Additional Public
Prosecutor had submitted that the recovery of the explosive
material and cash kept in two bags lying under the beds in the
hostel room of accused Bilal Ahmed Mir was effected on the
pointing out of accused Bilal Ahmed Mir and Ansar Ahmed Dar
when the raid team had entered that room in Karan Hostel and had
interrogated them and so their being co-conspirators with Mohd.
Afzal Kumhar and Adil Nazir Keen for the commission of various
offences is clearly made out.
Crl. A. Nos. 811/2007,
64. Regarding the recoveries of two bags containing explosive
material and cash at the pointing out of accused Bilal Ahmed and
Ansar Ahmed Dar it would be noticed from the evidence of PW-8 SI
Govind Sharma, which we have already re-produced in extenso,
that he had claimed that when the raid team members had
entered room no.3 accused Bilal Ahmed and Ansar Ahmed were
found inside and they were interrogated and during interrogation
―they told that under bed lying in the room, they had kept bags
containing explosives and money.....‖ . Similalry PW-12 SI Sharat
Kohli deposed that " Bilal and Ansar, who were apprehended in
room no.3 had pointed out towards a bag lying under the bed
towards the bathroom side of the room and another bag lying
under the other bed....". PW-16 ASI Anil Tyagi had deposed that
"Bilal and Ansar accd. Persons were inside the room and they got
discovered two bags from under the bed of the room. From those
two bags a sum of Rs.24,90,000/- cash and explsive material was
recovered.". PW-19 Inspector Mohan Chand Sharma, the leader of
the raid team. Deposed that ― Bilal and Ansar who were
apprehended from inside the room were interrogated and they told
about two bags lying under the bed of the room......‖. We have
Crl. A. Nos. 811/2007,
already found the evidence of these police witnesses to be
acceptable in toto. Their evidence establishes beyond any shadow
of doubt that on their pointing out two bags containing explosive
material and huge amount of cash kept under the beds in the room
of Bilal Ahmed Mir were recovered by the police. In the Parliament
Attack case(AIR 2005 SC 3820) the Supreme Court while dealing
with evidence recovery under made pursuant to a joint disclosure
statement of more than one accused had observed as under:-
―14. Joint disclosures
Before parting with the discussion on the subject of
confessions under Section 27, we may briefly refer to
the legal position as regards joint disclosures. This
point assumes relevance in the context of such
disclosures made by the first two accused viz. and
Shaukat. The admissibility of information said to have
been furnished by both of them leading to the
discovery of the hideouts of the deceased terrorists
and the recovery of a laptop computer, a mobile phone
and cash of Rs. 10 lacs from the truck in which they
were found at Srinagar is in issue. Learned senior
counsel Mr. Shanti Bhushan and Mr. Sushil Kumar
appearing for the accused contend, as was contended
before the High Court, that the disclosure and pointing
out attributed to both cannot fall within the Ken of
Section 27, whereas it is the contention of Mr. Gopal
Subramanium that there is no taboo against the
admission of such information as incriminating
evidence against both the informants/accused. Some
of the High Courts have taken the view that the
wording ―a person‖ excludes the applicability of the
Section to more than one person. But, that is too
narrow a view to be taken. Joint disclosures--to be
more accurate, simultaneous disclosures, per se, are
not inadmissible under Section 27. ‗A person accused'
Crl. A. Nos. 811/2007,
need not necessarily be a single person, but it could be
plurality of accused. It seems to us that the real
reason for ot acting upon the joint disclosures by
taking resort to Section 27 is the inherent difficulty in
placing reliance on such information supposed to have
emerged from the mouths of two or more accused at a
time. In fact, joint or simultaneous disclosure is a
myth, because two or more accused persons would not
have uttered informatory words in a chorus. At best,
one person would have made the statement orally and
the other person would have stated so substantially in
similar terms a few seconds or minutes later, or the
second person would have given unequivocal nod to
what has been said by the first person. Or, two
persons in custody may be interrogated separately and
simultaneously and both of them may furnish similar
information leading to the discovery of fact. Or, in rare
cases, both the accused may reduce the information
into writing and hand over to the written notes to the
police officer at the same time. We do not think that
such disclosures by two or more persons in police
custody go out of the purview of Section 27 altogether.
If information is given one after the other without any
break almost simultaneously, and if such information
is followed up by pointing out the material thing by
both of them, we find no good reason to eschew such
evidence from the regime of Section 27...................‖
So, in view of this decision of the Supreme Court the
argument of the learned counsel for the appellants that recoveries
pursuant to joint disclosures of accused Bilal Ahmed Mir and Ansar
Ahmed Dar do not incriminate any one of them cannot be
accepted.
Crl. A. Nos. 811/2007,
65. After having gone through the entire evidence relating to
the confessional statements of accused Mohd. Afzal Kumhar and
Adil Nazir Keen, recoveries of explosive material which they were
carrying on their shoulders as also lacs of rupees, recoveries of
incriminating material from inside the room of Bilal Ahmed Mir in
which admittedly all the four appellants were staying together the
final picture which emerges is that on 14/01/02 accused Mohd.
Afzal Kumhar and Adil Nazir were apprehended while going to
room no.3 in Karan Hostel. At that time they were carrying with
them RDX, cash money etc. and in the room of Bilal more explosive
and cash was recovered. At that time Bilal Ahmed Mir and Ansar
Ahmed Dar were present in that room. According to Bilal Ahmed
only co-accused Ansar Ahmed Dar had visited him earlier and other
two co-accused had come to him for the first time on 31/12/01.
There is no explanation coming from him as to how his co-accused
stayed with him if he did not know them and similarly there is also
no special reason given by his three co-accused persons as to why
they stayed in a small hostel room even though they were on a
business trip. Bilal Ahmed Mir and Ansar Ahmed have not offered
any explanation for the presence of the explosive substances and
Crl. A. Nos. 811/2007,
lacs of rupees in the room where they were staying. Their stand is
of total denial which cannot be accepted in view of the fact that we
have found the evidence of police witnesses very much reliable and
so it can be safely concluded that both these two accused were
also fully aware of the fact that explosive substance and lacs of
rupees were kept under the beds in room no.3 of Karan Hostel and
so they were also in conscious possession thereof. The judgment
cited by Mr. Maninder Singh (2002 SCC (Crl.) 1769) on the point as
to what amounts to ‗possession' of some contraband item is not
applicable here as the facts here are quite different from the facts
of that case. So, in our firm view, all these circumstances, which
stand established from prosecution evidence, are sufficient to
conclude that all the four appellants were party to the conspiracy to
wage war against the Government of India and in order to achieve
that goal all of them had assembled in room no.3 of Karan Hostel
for making bombs there before the Republic Day.
66. A faint submission towards the end was made that though
the two sanction orders for the prosecution of the accused were got
exhibited through PW-2 Shri G.L.Meena, Deputy Secretary(Home),
Crl. A. Nos. 811/2007,
Government of NCT of Delhi as Ex. PW-2/A and Ex. PW-2/B but it
has not been established that the Lieutenant Governor had actually
given the sanctions as is recorded in the said two sanction orders.
In our view, this objection is totally devoid of any merit. The two
formal sanction orders Ex. PW-2/A and Ex. PW-2/B are signed by
PW-2 Shri G.L. Meena ―By order and in the name of the Lt.
Governor of the National Capital Territory of Delhi‖. In the cross-
examination of PW-2 it was not even put to him that the Lieutenant
Governor had not accorded sanctions for the prosecution of the
accused persons. In fact, it was put to the witness that he had, in
fact, obtained signatures of the Lieutenant Governor and the
Lieutenant Governor himself had not applied his mind at the time
of according sanctions. This suggestion clearly shows that the
accused were not disputing the fact that the Lieutenant Governor
had accorded the sanctions. As far as the suggestion to this
witness that the Lieutenant Governor had not accorded sanction
after applying his mind is concerned we do not find any substance
in that objection also. A perusal of the two sanction orders shows
that the Lieutenant Governor had accorded sanctions after
considering all the relevant material. In this regard we may refer to
Crl. A. Nos. 811/2007,
a decision of the Hon'ble Supreme Court in ―Mohd. Iqbal M. Sheikh
& Ors. Vs. The State of Maharashtra‖, 1998 (2) JCC 180 wherein it
was held that when the relevant sanction order is produced on
record and the same indicates the materials considered by the
sanctioning authority and that the sanction was accorded by the
sanctioning authority after applying mind to the relevant materials
the same would be sufficient to hold that there was a valid
sanction. We, thus, reject this ground of challenge also put forth
on behalf of the convicted accused for seeking their acquittal on
the ground of invalidity of sanction. Learned APP had argued that
Section 465 of the Code of Criminal Procedure provides that no
finding, sentence or order by a Court of competent jurisdiction shall
be reversed by a Court of Appeal or revision on account of any error
or irregularity in any sanction for the prosecution unless in the
opinion of the Court a failure of justice has occasioned thereby and
so on account of any irregularity in the two sanction orders in
question, even if the same had existed, this Court would not have
reversed the judgment of conviction on that ground. We, however,
need not go into this aspect in view of our conclusion that the
Lieutenant Governor, who undisputedly was the sanctioning
Crl. A. Nos. 811/2007,
authority, had accorded the sanctions under POTA as well as under
Section 196 Cr.P.C. after due application of mind to all the relevant
materials.
67. No other point was urged on behalf of the appellants, as
far as the prosecution case is concerned.
67. In view of our conclusion that the prosecution has been
able to discharge its burden of proving the allegations against all
the four accused-appellants the stage has now come to examine
their defence plea to the effect that the prosecution case regarding
recoveries of RDX etc. on 14/01/02 should not be accepted since
they had been illegally picked up from Karan Hostel on 02-01-2002
and were kept in illegal confinement thereafter till 15-01-2002
when after foisting this false case upon them they were produced
before the Designated Court. The case of the accused-appellants is
that when their family members came to know that they had been
picked up by the police they had approached the Chairman of the
J&K Legislative Council in Sri Nagar on 11-01-2002 and had
brought to his notice this fact and then the Chairman Shri Abdul
Crl. A. Nos. 811/2007,
Rashid Dar, who has been examined as DW-14, had on 14-01-
2002 around 10.30 a.m. sent a fax message to the Chief Minister
of J&K, who on that day was stated to be in Delhi, bringing to his
notice the fact about the four accused persons having been picked
up by the police on 02-01-2002. The submission of the counsel for
the appellants was that since the information about the police
picking up the appellants had reached Delhi through the then Chief
Minister of J&K in the morning of 14th January the policemen
sensing that the persons whom they had illegally picked up on 2nd
January were having access upto the senior politicians
they(policemen) might land themselves in trouble for their illegal
action must have decided to show the arrest of the accused-
appellants on papers only during the so-called raid on the night of
14th January, 2002. It was also the submission that the fact that
the accused were picked up on 02/01/02 by the police from Karan
Hostel was almost impossible to be established by any direct
evidence by the accused persons nor were they expected in law to
establish that plea beyond reasonable doubt and were only
supposed to probablise that plea and that the accused persons
had been able to do from the evidence of eight defence witnesses
Crl. A. Nos. 811/2007,
(DWs-3 to 6, DW-9, DW-12, DWs-13 and 14). Strong reliance was
placed on one fax message(Ex.DW-13/B) allegedly sent by DW-14
Shri Abdul Rashid Dar to the then Chief Minister of J&K on 10.30
a.m. In support of this point raised Mr. Maninder Singh, learned
counsel cited one judgment of the Apex Court in ―Mohd. Zahid vs
The Govt. Of NCT of Delhi‖, 1998(2) JCC 124. Learned counsel had
also submitted that DW-14 Shri Abdul Rashid Dar had categorically
deposed that he was approached by the family members of the
four accused persons on 11-01-2002 to inform him about the said
illegal act of the Delhi Police in picking up the accused persons
from Karan Hostel and further that he had thereafter on 14-01-
2002 in the morning around 9.30 a.m., when he had reached his
office, his secretary had faxed the letter Ex.DW-13/B, signed by
him(DW-14) to the State Chief Minister in Delhi and around 11 a.m.
the Chief Minister himself had confirmed the receipt of that faxed
letter. Learned counsel submitted that if the family members of
the accused persons had approached DW-14 on 11-01-2002 with
the complaint against the Delhi Police it cannot be accepted that
they had known at that time that the accused persons would be
apprehended by the Delhi Police in some false case and so they
Crl. A. Nos. 811/2007,
should prepare a defence plea in advance to be used in future in
the event of their actual arrest.
68. After examining the defence evidence we have come to the
conclusion that the accused have neither been able to establish
nor even probabilise that they were picked up from Karan hostel on
02/01/02. DW-3 Bakhtawar Zaman is the brother of accused
Ansar Ahmed Kumhar. What was sought to be shown through this
witness that one Mohd. Ashraf Sheikh had made a telephone call
to his (DW3's) phoofi that accused Ansar, Bilal and two more
boys had been picked up by the police on 02/01/02 and then
Ashraf's phoofi informed the family of accused Bilal and Bilal's
family informed his(DW-3's) family about that. Then on 5th evening
he made telephone call at Karan hostel but from there he could not
get any proper response. This shows that Mohd. Ashraf, whosoever
he was, had some positive information about the picking up of the
accused on 02/01/02 before 5th January and that Mohd. Ashraf
was also living in Delhi. This witness also stated that on
11/01/02 it had been confirmed that accused had been arrested
by the police on 02/01/02. However, the defence has not
Crl. A. Nos. 811/2007,
produced that Mohd. Ashraf Sheikh. He was their best witness and
so evidence of DW-3 is of no value.
69. DW-4 Gulam Hassan Bhutt, Chief Accountant in a Co-
operative Society in Anantnag, deposed that he knew accused Bilal
and Ansar as Bilal was his next door neighbour and he(DW-4) used
to maintain accounts of the mill of Ansar on part time basis. He
further deposed that Bilal's elder brother had come to him on 04-
01-2002 and informed to him that Bilal had been arrested by the
police on 02-01-2002 and thereafter on 11-01-2002 he along with
relatives of these two accused had met the Chairman of the
Legislative Council Shri A.R. Dar and also Mohd. Maqbool Dar, Ex.
Home Minister. Even Bilal's brother who informed this witness
about the arrest of the accused on 02-01-2002 has not been
examined. He could have given the exact information as to how he
had come to know that Bilal had been arrested on 02-01-2002.
Therefore, evidence of this witness is also of no value. DW-5 Gul
Mohd. Mani and DW-6 Gul Mohd. Sheikh, both residents of
Anantnag, had simply deposed that they had learnt about the
arrest of accused Bilal and Ansar on 02-01-2002. They, however,
Crl. A. Nos. 811/2007,
did not come out with the source of that information and so their
evidence is also meaningless. In case these people had actually
come to know about the arrest of the accused on 02/01/02 they
would have taken some steps immediately. No action was taken by
anyone to find out about the accused. That fact also
improbabalises the defence plea.
70. Now we come to the defence plea revolving around Ex.DW-
13/A, which is the copy of the letter which DW-14 Shri Dar had
allegedly faxed to the then Chief Minister, J&K on 14/01/02 who
on that date was in Delhi. This document was first exhibited in the
evidence of DW-13 who was employed in the Jammu & Kashmir
Legislative Council Secretariat. He deposed that this letter of Mr.
Dar was faxed to the then Chief Minister Shri Farooq Abdullah on
14/01/02 at 10.30 a.m. and was received at New Delhi at 10.38
a.m. The letter Ex. DW-13/A is being reproduced below:
―For the very kind attention of Hon'ble Chief Minister,
Jammu and Kashmir State.
Four boys from Anantnag district, whose
particulars are given hereunder, had gone to Delhi
around 30th of December. Since 2nd or 3rd of January
their whereabouts are not known. They are reported
to have been picked up by the Delhi Police from Karan
Hostel, Kotla Mubarakpura, Parasadi gali, South
Crl. A. Nos. 811/2007,
Extension, New Delhi. The J&K State, CID cell, Delhi
was requested to trace out these four boys but till now
nothing has been heard from them. You will kindly
appreciate the agony to their parents and other family
members who are in all circumstances entitled to
know the fate of their children.
1. Mohd. Afzal Kumar S/o Sh. Mohd. Kumar, R/o
Tailwani Anantnag (Junior Engineer).
2. Bilal Ahmad Mir, R/o Dialgam, Anantnag, (M.B.A.
student staying in Karan Hostel where from they
have been picked up).
3. Abdul Nazir Keen R/o Bulwani, Anantnag.
4. Annyatullah Dar R/o Dialgam, Anantnag.
No.:- PO/HCM/759/lC-02 Sd/-
Dated:- 14-01-02 Chairman
J&K Legislative Council.
Hon'ble Chief Minister,
J&K State.‖
This document of the defence shows that the family
members of the accused persons had informed DW-14 that all the
four accused-appellants had come to Delhi from Kashmir on 30th
December, 2001. However, it is not even the case of the accused
persons that all four of them had come to Delhi on 30th December,
2001. Accused Bilal Ahmed Mir has claimed that he was living in
Karan Hostel since 1998 and not that he had come to Delhi from
Kashmir on 30th December, 2001 along with his three co-accused
persons. It is, thus, clear that if at all the family members of the
accused persons had met DW-14 on 11-01-2002, although even
Crl. A. Nos. 811/2007,
this fact cannot be accepted since none of the family members of
the accused persons has come forward to say so in evidence, they
had not given to him correct information and for this reason the
document Ex. DW-13/A cannot be of any help for establishing the
defence plea to the effect that the accused-appellants had been
picked up by the police from Karan Hostel on 02-01-2002.
72. Now we come to the evidence of DW-14 Shri Abdul Rashid
Dar. He had deposed that on 11/01/02 parents of the accused
persons had met him and had informed him that the four accused
persons had gone to Delhi on 30/012/01 and on 02/01/02 they
had been picked up by Delhi Police. Then on 14/01/02 they had
called him at his house in Jammu in the morning and then he
contacted the State Chief Minister who that day was in Delhi and
as desired by the Chief Minister he had faxed to him the letter
Ex.DW-13/B, in which these facts were written. And then around 11
a.m. he had spoken to Chief Minister again when he was informed
that he would be coming back in the evening that day. In the
evening the Chief Minister returned from Delhi and informed him
that he had found out that a case had been registered against the
Crl. A. Nos. 811/2007,
accused persons and they would be produced in Court next day. In
cross-examination by APP this witness stated that the Chief
Minister had given him the impression that the accused had been
arrested on 14/01/02. From the evidence of DW-14 and the
contents of Ex.DW-13/A it is clear that whatever was written in
Ex.DW-13/A was told to DW-14 by the family members of the four
accused-appellants. Since none of the relatives of the accused
persons had seen them being picked up by the police on 02/01/02
the evidence of DW-14 does not at all help the accused. The Chief
Minister also must have informed DW-14 regarding the arrest of
the accused on 14th January only after verifying the factual
position. We are also of the view that the evidence of DW-14 does
not inspire confidence inasmuch as he has claimed that the
parents of the accused had met him on 11-01-2002 but, as
observed already, none of them has even bothered to enter the
witness box to say that they had actually met DW-14 on 11-01-
2002 or on 14-01-2002 as had been deposed by DW-14. We are
also of the view that the defence has also not been able to
establish that the letter Ex. DW-13/A was, in fact, received by the
Chief Minister in Delhi on 14-01-2002 at 10.38 a.m. Neither the
Crl. A. Nos. 811/2007,
then Chief Minister of J&K nor even his private secretary has been
examined to prove that the said letter was, in fact, received in Delhi
on 14-01-2002 at the Kashmir House. Nor the letter allegedly
faxed and received in the Kashmir House, New Delhi has been got
proved by the defence. There is no explanation for the non-
examination of the relevant witnesses posted at the Kashmir
House on 14-01-2002 who could only confirm whether any such
letter was received at all from DW-14 or not.
73. The judgment of Apex Court in Mohd. Zahid's case(supra),
relied upon by the counsel for the appellants, is clearly
distinguishable on facts and does not help the appellants here. In
that case the accused convicted under TADA took a plea that he
was actually arrested by the police on 6th March,1990 but was
shown to have been arrested on 8th March,1990 at 5.30 p.m. To
probabalise this plea reliance was placed on the fact that on 8th
March the father of the accused had moved an application before
the concerned Magistrate bring to his notice that fact and for a
direction to the police for the production of his son. Same day a
telegram to that effect also was sent to higher authorities by the
Crl. A. Nos. 811/2007,
father of the accused. During the trial the father of the accused
was not examined. The trial Court convicted the accused. The
Supreme Court summoned the Daily Diary Book of the concerned
police station for 8th March, 1990 which showed that there was an
interpolation made in the entry regarding the time of departure of
the police which had gone to apprehend the accused. Before
interpolation the departure time was shown as 6 p.m. and then
was changed to 5 p.m. So, the Supreme Court felt that if the police
had left the police station at 6 p.m. the accused could not have
been arrested at 5.30 p.m. as was being projected by it and so the
defence plea was found to be probable. That is not the position
here at all.
74. DW-9 Moti Lal also falsifies the defence plea instead of
helping them. He deposed that on 1/1/02 and 2/1/02 he had
taken accused Ansar Ahmed, Adil and Afzal to Mr. Nigam(DW-10)
of Nigam Packers as Ansar wanted some packing material and
thereafter the accused did not meet him(DW-9). He had also stated
that 7-8 days after 02/01/02 when he was going home he saw
these accused and one other person being shown on TV News and
Crl. A. Nos. 811/2007,
next day he had also read about their arrest in the newspaper. So,
according to this defence witness he had seen the accused on TV
and read about them 7-8 days after 02/01/02 when he had met
them last. That was thus around 9th or 10th January. This is not
even the case of the accused that they had been shown on TV or
their arrest was reported in newspapers also around 9th or 10th
January. In any case, the newspaper cutting to that effect has not
been produced and no evidence of any TV Channel has been
adduced. It can thus be said that this defence witness has given a
version which was not true.
75. We have already accepted the prosecution case regarding
the recovery of mobile phone with the number 9811336055 from
room no. 3 of Karan Hostel on 14-01-2002 purchase of which on
07-01-2002 was admitted also by accused Mohd. Afzal Kumhar
and Adil Nazir Keen in their confessional statements. If they were
in police custody from 2nd January onwards they could not have
purchased the mobile phone during that period. Thus the
admission by the accused persons of purchase of the mobile
phone on 07/01/02 and then its recovery from the room of
Crl. A. Nos. 811/2007,
accused Bilal Ahmed on 14/01/02 also falsifies the plea of the
accused persons that they were arrested on 02-01-2002.
76. We are, therefore, of the view that the defence plea that the
accused had been apprehended on 02/01/02 is neither
established nor even probabalised.
77. In view of our foregoing conclusions, these appeals are
dismissed and consequently the convictions of all the four accused-
appellants for various offences as recorded by the Designated
Judge vide judgment dated 30-10-2007 as also the sentences
awarded to them vide order dated 22/11/07 are affirmed.
P.K.BHASIN,J
APRIL 13, 2009 B.N. CHATURVEDI,J
sh
Crl. A. Nos. 811/2007,
