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CASE NO.: Appeal (crl.)  373-375 of 2004

PETITIONER: STATE (N.C.T. OF DELHI)                                  

RESPONDENT: NAVJOT SANDHU@ AFSAN GURU                                

DATE OF JUDGMENT: 04/08/2005

BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: JUDGMENT WITH

CRIMINAL APPEAL Nos. 376-378 OF 2004 STATE (N.C.T. OF DELHI)                                 \005 APPELLANT

VERSUS

SYED ABDUL REHMAN GILANI                                \005 RESPONDENT

CRIMINAL APPEAL Nos. 379-380 OF 2004 SHAUKAT HUSSAIN GURU                                    \005 APPELLANT

VERSUS

STATE (N.C.T. OF DELHI)                                 \005 RESPONDENT

CRIMINAL APPEAL NO. 381 OF 2004 MOHD. AFZAL                                                     \005 APPELLANT

VERSUS

STATE (N.C.T. OF DELHI)

P. VENKATARAMA REDDI, J.

1.              The genesis of this case lies in a macabre incident that took place  close to the noon time on 13th December, 2001 in which five heavily armed  persons practically stormed the Parliament House complex and inflicted heavy  casualties on the security men on duty. This unprecedented event bewildered  the entire nation and sent shock waves across the globe. In the gun battle that  lasted for 30 minutes or so, these five terrorists who tried to gain entry into  the Parliament when it was in session, were killed. Nine persons including eight  security personnel and one gardener succumbed to the bullets of the terrorists  and 16 persons including 13 security men received injuries. The five terrorists  were ultimately killed and their abortive attempt to lay a seize of the  Parliament House thus came to an end, triggering off extensive and effective  investigations spread over a short span of 17 days which revealed the possible  involvement of the four accused persons who are either appellants or  respondents herein and some other proclaimed offenders said to be the leaders  of the banned militant organization known as "Jaish-E-Mohammed". After the  conclusion of investigation, the investigating agency filed the report under  Section 173 Cr.P.C. against the four accused persons on 14.5.2002. Charges  were framed under various sections of Indian Penal Code (for short ’IPC’), the  Prevention of Terrorism Act, 2002 (hereinafter referred to as ’POTA’) and the  Explosive Substances Act by the designated Court.  The designated Special  Court presided over by Shri S.N. Dhingra tried the accused on the charges and  the trial concluded within a record period of about six months. 80 witnesses

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were examined for the prosecution and 10 witnesses were examined on behalf  of the accused S.A.R. Gilani. Plethora of documents (about 330 in number)  were exhibited. The three accused, namely, Mohd. Afzal, Shaukat Hussain  Guru and S.A.R. Gilani were convicted for the offences under Sections 121,  121A, 122, Section 120B read with Sections 302 & 307 read with Section 120- B IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of POTA and  Sections 3 & 4 of Explosive Substances Act. The accused 1 & 2 were also  convicted under Section 3(4) of POTA. Accused No.4 namely Navjot Sandhu @  Afsan Guru was acquitted of all the charges except the one under Section 123  IPC for which she was convicted and sentenced to undergo R.I. for five years  and to pay fine. Death sentences were imposed on the other three accused for  the offence under Section 302 read with Section 120-B IPC (it would be more  appropriate to say\027 Section 120-B read with Section 302 IPC) and Section  3(2) of POTA. They were also sentenced to life imprisonment on as many as  eight counts under the provisions of IPC, POTA and Explosive Substances Act in  addition to varying amounts of fine. The amount of Rs.10 lakhs, which was  recovered from the possession of two of the accused, namely, Mohd. Afzal and  Shaukat Hussain, was forfeited to the State under Section 6 of the POTA. 2.              In conformity with the provisions of Cr.P.C. the designated Judge  submitted the record of the case to the High Court of Delhi for confirmation of  death sentence imposed on the three accused. Each of the four accused filed  appeals against the verdict of the learned designated Judge. The State also  filed an appeal against the judgment of the designated Judge of the Special  Court seeking enhancement of life sentence to the sentence of death in relation  to their convictions under Sections 121, 121A and 302 IPC. In addition, the  State filed an appeal against the acquittal of the 4th accused on all the charges  other than the one under Section 123 IPC. The Division Bench of High Court,  speaking through Pradeep Nandrajog, J. by a well considered judgment  pronounced on 29.10.2003 dismissed the appeals of Mohd. Afzal and Shaukat  Hussain Guru and confirmed the death sentence imposed on them. The High  Court allowed the appeal of the State in regard to sentence under Section 121  IPC and awarded them death sentence under that Section also. The High Court  allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and  acquitted them of all charges. This judgment of the High Court has given rise  to these seven appeals\027two appeals preferred by Shaukat Hussain Guru and  one appeal preferred by Mohd. Afzal and four appeals preferred by the  State/Government of National Capital Territory of Delhi against the acquittal of  S.A.R. Gilani and Navjot Sandhu. It may be mentioned that the accused Mohd. Afzal and Shaukat Hussain  Guru are related, being cousins. The 4th accused Navjot Sandhu @ Afsan Guru  is the wife of Shaukat Hussain. The third accused S.A.R. Gilani is a teacher in  Arabic in Delhi University. It is he who officiated the marriage ceremony of  Shaukat Hussain Guru and Navjot Sandhu who at the time of marriage  converted herself to Islam. 3.(i)           Now, let us make a brief survey of the incident and the  investigation that followed, which led to the filing of the charge-sheet, as  apparent from the material on record. (ii)            There is practically no dispute in regard to the details of actual  incident, the identification of the deceased terrorists and the recoveries and  other investigations made at the spot. (iii)           Five heavily armed persons entered the Parliament House complex  in a white Ambassador Car. The said five persons (hereinafter referred to as  the ’slain’ or ’deceased terrorists’) were heavily armed with automatic assault  rifles, pistols, hand and rifle grenades, electronic detonators, spare  ammunition, explosives in the form of improvised explosive devices viz., tiffin  bombs and a sophisticated bomb in a container in the boot of the car made  with enormous quantity of ammonium nitrate. The High Court observed: "The  fire power was awesome\027enough to engage a battalion\027and had the attack  succeeded, the entire building with all inside would have perished." (iv)            It was a fortuitous circumstance that the Vice President’s carcade,  which was awaiting departure from Gate No.11 was blocking the circular road  outside the Parliament building, with the result the deceased terrorists were  unable to get free and easy access to the Parliament House building. The  attack was foiled due to the immediate reaction of the security personnel  present at the spot and complex. There was a fierce gun-battle lasting for

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nearly 30 minutes. As mentioned earlier, nine persons including eight security  personnel and one gardener lost their lives in the attack and 16 persons  including 13 security personnel, received injuries. The five assailants were  killed. (v)             From the evidence of PW5 who was the ASI in-charge of Escort-I  vehicle of the Vice-President, we get the details of the origin of the incident. He  stated that at about 11.30 a.m. one white Ambassador car having red light  entered the Parliament complex and came to the point where the carcade of  the Vice-President was waiting near Gate No.11. Since the escort vehicle was  blocking the way, the car turned towards left. He got suspicious and ordered  the vehicle to stop. Then, the driver of the Ambassador car reversed the  vehicle and while doing so struck the rear side of the car of the Vice-President.  When the car was about to move away, he and the driver of the Vice- President’s car ran towards the car and caught hold of the collar of the driver.  As he was trying to drive away, PW5 took out his revolver. At that juncture,  the five persons in the car got out of it and quickly started laying wires and  detonators. Then PW5 fired a shot, which struck on the leg of one of the  terrorists. The terrorist also returned the fire as a result of which he received a  bullet injury on his right thigh. There was further exchange of fire. The  evidence of other witnesses reveal that there was hectic movement of the  terrorists from gate to gate within the complex firing at the security men on  duty and the latter returning the fire. (vi)            The Station House Officer of Parliament Street Police Station, Shri  G.L. Mehta (PW1) along with his team of police personnel reached the spot  after receiving a wireless message. By that time, the firing spree was over.  PW1 cordoned off the area. He found one deceased terrorist lying opposite  Gate No.1 of the Parliament building, one deceased terrorist at the porch of  Gate No.5 and three deceased terrorists lying in the porch of Gate No.9. The  Bomb Disposal Squad of NSG, a photographer and a crime team were  summoned to the spot. PW1 then deputed three Sub-Inspectors (PWs2 to 4) to  conduct investigation at the three gates. PW1 then examined the spot of  occurrence, prepared a rough sketch of the scene of occurrence and seized  various articles including arms and ammunition, live and empty cartridges and  the car and the documents found therein. Blood samples were also lifted from  various spots. The photographs of the five slain terrorists were caused to be  taken.  Then, he sent the dead bodies to the mortuary in the hospital for  postmortem. (vii)           After the Bomb Disposal Squad had rendered the area safe and his  preliminary observations were over, PW1 recorded the statement of S.I. Sham  Singh (PW55) who was in the security team of Vice-President. On the basis of  this statement, ’Rukka’ (Ext.PW1/1) was prepared and PW1 despatched the  same to the police station at about 5 p.m. This formed the basis for  registration of First Information Report. The FIR was registered for offences  under Sections 121, 121A, 122, 124, 120-B, 186, 332, 353, 302, 307 IPC,  Sections 3, 4 & 5 of the Explosive Substances Act and Sections 25 & 27 of the  Arms Act by the Head Constable (PW14) of the Parliament Street Police  Station. The copy of FIR was sent to the Court on the same day, as seen from  the endorsement on the document (PW 14/1). The further investigation was,  taken up by the special cell of Delhi Police. (viii)  Investigations conducted by PW1 and his team of officers led to the  recovery and seizure of the following articles inter alia: A white ambassador car, DL3CJ1527, with a VIP red light. The car had a  sticker of the Home Ministry (subsequently found to be fake) on the windshield  (Ex. PW 1/8) containing an inscription at the rear denigrating India and  reflecting a resolve to ’destroy’ it. Certain papers relating to the car were found  inside the car. Six fake identity cards purportedly issued by Xansa Websity, 37,  Bungalow Road, New Delhi to different students with their address as 120-A,  Adarsh Nagar, Delhi and the telephone number as 9811489429. These identity  cards were in the names of Anil Kumar, Raju Lal, Sunil Verma, Sanjay Koul,  Rohail Sharma and Rohail Ali Shah (which were subsequently found to be fake  names of the deceased terrorists). One fake identity card of Cybertech Computer Hardware Solutions in the  name of Ashiq Hussain which was being carried by the deceased terrorist  Mohammed.

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Two slips of paper bearing five domestic mobile phone numbers, which  were related to the instruments found on the deceased terrorists and two UAE  numbers. Three SIM cards corresponding to the mobile phone numbers noted  on the slips were found inside the aforementioned three instruments\027Ext. P28,  P37 & P27. In addition, three other SIM cards were recovered from the purse  of the deceased terrorist Mohammad at Gate No.1. One sheet of paper on which the topographical details regarding the  Parliament House building and the compound were handwritten. 4.(i)           So far, about the incident and the preliminary investigations at the  scene of occurrence regarding which there is practically no dispute. We shall  now narrate briefly the further factual details as unfolded by the prosecution:  (ii)            While investigations were on at the spot, PW20 came to the  Parliament Complex and met PW1. PW20 provided the first leads to the  investigating officials by informing PW1 that he had sold the Ambassador car  used in the attack (DL 3C J 1527) on 11.12.2001. He had come to the spot  after seeing the said car on the television screen. PW20 had brought with him  a delivery receipt dated 11.12.2001, photocopy of the identity card of one  Ashiq Hussain etc. PW20 identified the deceased terrorist (Mohammad) at Gate  No.1 as being the said Ashiq Hussain who had purchased the car. (iii)           Inspector Mohan Chand Sharma of special cell\027PW66 undertook  the investigations pertaining to the mobile phones. Phone call details were  obtained and analysed from the respective cellular mobile service providers.  Analysis of the call records indicated that the number 9811489429 which was  found on the I.D. cards, (subsequently discovered to be that of the accused  Afzal) appeared to be integrally connected with the deceased terrorists and this  number had been in frequent contact with the cell phone No. 9810693456  (recovered from the deceased terrorist Mohammad at Gate No.1) continuously  from 28.11.2001 till the date of the attack. It was further revealed that this  number of Afzal, namely, 9811489429 was in contact with the above cell  phone of Mohammad, just before the incident i.e. at 10.40 a.m., 11.04 a.m.  and 11.22 a.m. It was also ascertained that the said number of Afzal was  activated only on 6.11.2001 close to the attack. Further analysis of the cell phone call records showed that another cell  phone number i.e. 9811573506 (subsequently discovered to be that of  Shaukat and recovered from the 4th accused Afsan Guru) appeared to be in  close contact with Afzal’s number namely 9811489429 and these numbers  were in contact with each other a few minutes before the attack on the  Parliament commenced. It was also found that the said number of Shaukat was  activated only on 7.12.2001 just a week prior to the attack. An analysis of the  call records relating to Shaukat’s mobile phone further revealed that soon after  the attack i.e at 12.12 hours, there was a call from Shaukat’s number to the  cell phone number 9810081228 (subsequently discovered to be that of SAR  Gilani) and there was a call from Gilani’s number to Shaukat’s number 10  minutes later. Moreover, it was ascertained that Gilani’s number was in  constant touch with the other two accused namely Shaukat and Afzal. It  transpired that Afzal’s cell phone bearing number 9811489429 was reactivated  on 7.12.2001 and the first call was from Gilani’s number. With the recoveries of the cell phones and SIM cards and on an analysis  of the details of phone numbers noted on the slips of papers in the light of the  call records, the investigation narrowed down to three numbers, namely,  9811489429, 9811573506 and 9810081228 which belonged to Afzal, Shaukat  and Gilani respectively. It was also found that the first two numbers were cash  cards and hence the details regarding their ownership were not available.  However, as regards 9810081228, the information was received from the  service provider (AIRTEL) that SAR Gilani with the residential address 535, Dr.  Mukherjee Nagar, Delhi was the regular subscriber. PW66 then took steps on December 13th for obtaining permission from  the Joint Director, I.B. as per the requirements of Indian Telegraph Act for  keeping surveillance and tapping of the mobile phone Nos.9811489429,  9811573506 and 9810081228. On 14th December, at 12.52 hours, an incoming  call to Gilani’s No. 9810081228 was intercepted by S.I. Harender Singh  (PW70).  The call was in Kashmiri language.  A Kashmiri knowing person  (PW71) was requested to interpret the call recorded on the tape. He translated  the call in Hindi which was recorded in Ext. PW66/4. That was a call from the  brother of Gilani which was made from Srinagar.  On the same day, at 8.12

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P.M. a call was intercepted on the number 9811573506 which disclosed that  one woman was talking in a state of panic to a male person whom she  addressed as Shaukat.  This conversation was transcribed by PW70 as per PW  66/3.  The subsequent forensic analysis revealed that the male voice in the  conversation was of the accused Shaukat Hussain and that the female voice  was that of his wife\027accused No.4 who was the recipient of the call.  The call  came from Srinagar.  Both the intercepted conversations were analysed and  considered by PW 66 (Inspector M.C. Sharma) at about 10 P.M. on 14th  December. PW 66 resultantly drew an inference that the persons who were  conversing on the two mobile phones were having knowledge about the attack  on Parliament and that two persons namely, Shaukat and Chotu who were  connected with the case were in Srinagar.  The calling No. 0194 492160 was  sent to the Central Agency of Srinagar Police for surveillance. (iv)            The next move was to arrest Gilani, which according to the  prosecution was at about 10 A.M. on December 15th when he was entering his  house at Mukherjee Nagar.  Shri Gilani is alleged to have made disclosures to  the investigating agency, the contents of which were recorded subsequently as  Ex. PW 66/13.  The disclosure statement implicated himself and the other  accused in the conspiracy to attack the Parliament.  According to the  prosecution, he disclosed the facts on the basis of which further investigation  was carried out, certain recoveries were effected and discovery of facts took  place.  The identity of the deceased terrorist Mohammad and others, the part  played by Shaukat and Afzal and other details are said to have been given by  him.  According to the prosecution, Shri Gilani then led the Investigating  Officer to the house of Shaukat which was also located at Mukherjee Nagar.   The 4th accused Afsan Guru\027the wife of Shaukat was found there with cell  phone No. 9811573506.  The search of the premises resulted in the recovery  of another cell phone 9810446375 which was in operation from 2nd November  to 6th December.  Accused Navjot, on interrogation, disclosed that Mohammad  (deceased terrorist) gave Rs. 10 lac and laptop computer to Shaukat and  asked him to go to Sri Nagar in the truck along with Afzal.  The truck was  registered in her name.  The disclosure statement of Navjot is Ex.PW66/14.   According to the prosecution, she was arrested at about 10.45 a.m. on 15th  December. The truck number given by her was flashed to Srinagar.  Srinagar  police was successful in apprehending the two accused Afzal and Shaukat while  they were in the truck belonging to Navjot. On their pointing out, the laptop  computer and an amount of Rs. 10 lac were recovered from the truck by the  SDPO, Srinagar (PW61).  A mobile handset without any SIM card was also  found.  It transpired that this hand set was used in the operation i.e. No.  9811489429 which established contacts with deceased terrorists minutes  before the attack.  Mohd. Afzal and Shaukat Hussain, who were arrested by the  Srinagar Police at about 11.45 A.M., were brought to Delhi in a special aircraft  and were formally arrested in Delhi. The investigation was handed over the  PW76 (Inspector Gill of Special Cell) on 16th December. (v)             It is the case of the prosecution that on interrogation, they made  disclosure statements (Ex.PW 64/1 and PW 64/2) in relation to their role in the  conspiracy.  On December 16th, Afzal and Shaukat led the investigating team  to the various hideouts, viz., Indira Vihar and Gandhi Vihar where the terrorists  stayed.  On the search of these places, the police recovered chemicals,  prepared explosives, detonators, gloves, mixer grinder, motor cycles\027one  belonging to Shaukat and the other purchased by the deceased terrorist  Mohammad from PW29 which was allegedly used for reconnaissance (reccee).   On December 17th , the investigating officer took Mohd. Afzal to the mortuary  at the L.H. Medical College   Hospital where Afzal identified the bodies of the  five deceased terrorists as Mohammad (dead body found at Gate No.1), Raja,  Rana, Hamza (dead bodies found at Gate No.9) and Haider (dead body found  at Gate No.5). From December 17th to December 19th, Afzal led the police to  various shops from where the chemicals and other materials required for  preparing explosives were purchased and also the shops from where red light  found on the seized car, motor cycle, dry fruits, mobile phones etc. were  purchased.  From December 17th onwards, the laptop was analysed by the IO  with the assistance of an expert\027PW72.  PW72 submitted a report narrating  the results of his examination.  The laptop was also sent to BPR&D Office in  Hyderabad and another report from PW73 was obtained.  The forensic analysis  revealed that the documents found at the spot with the deceased terrorists

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including various identity cards and sticker of the Home Ministry, were found  stored in that laptop. (vi)            On 19th December, the important development was that the  provisions of Prevention of Terrorism Ordinance were invoked and the offences  under the said Ordinance were also included in the relevant columns of crime  documents. According to the prosecution, this was done after due  consideration of the material collected by then and upon getting definite  information about the involvement of a banned terrorist organization\027Jaish\026e- Mohammad.  The investigation was then taken over by the Assistant  Commissioner of Police Shri Rajbir Singh (PW80). He recorded a  supplementary disclosure statement being Ext. PW64/3. (vii)           On the same day i.e. 19th December, there was another crucial  development.  According to the prosecution, the three accused\027Afzal, Shaukat  and Gilani expressed their desire to make confessional statements before the  authorized officer.          On 20th December, PW80 made an application before the DCP (Special  Cell) (PW60) for recording the confessional statements of these three accused.   PW60 gave directions to PW18 to produce the three accused at the Officers  Mess, Alipur Road,  Delhi.  On the next day i.e. 21st December, the accused  Gilani was first produced before PW60 at the Mess building.  However, Shri  Gilani refused to make a statement before PW60 and the same was recorded  by him.  Thereafter, Shaukat Hussain was produced before PW60 at 3.30 P.M.   Shaukat Hussain expressed his desire to make the confessional statement and  the same was recorded by PW60 in his own handwriting which according to  him was to the dictation of Shaukat.  The confessional statement recorded  purportedly in compliance with Section 32 is marked as Ex. PW60/6.  The other  accused Afzal was also produced before PW60 at 7.10 P.M. on 21st December.  After he expressed the desire to make the confession, his statement was  recorded by PW60 in his own handwriting allegedly as per the dictation of the  said accused. This is Ex.PW60/9. PW80 obtained copies of the confessional  statements in sealed envelopes. In substance, both Afzal and Shaukat  confessed having been parties to the conspiracy to launch an attack on the  Parliament House.  The details of the confessions will be adverted to later.         On 22nd December PW80 produced the accused persons before the Addl.  Chief Metropolitan Magistrate (PW63) in compliance with Section 32 of POTA.   The learned Magistrate conducted the proceedings in respect of each of the  accused persons in order to satisfy himself that the statements recorded by  PW60 were not the result of any inducements or threats.  No complaint of any  such threat or inducement was made to PW63. Shaukat Hussain and SAR  Gilani were remanded to judicial custody on 22nd December itself.  However,  the police custody of Mohd.Afzal was allowed for the purpose of conducting  certain investigations in the light of the supplementary disclosure statement  made by him to PW80. (viii)          On 4.5.2002 sanction was accorded by the Lt. Governor of Delhi in  view of the requirements of Section 50 POTA and Section 196 Cr.P.C.   Sanction was also accorded by the Commissioner of Police on 12th April for  prosecution under Explosives Substances Act.  On conclusion of the  investigations, the Investigating Agency filed the report under Section 173  Cr.P.C. against the four accused.   By the time the charge sheet was filed and  the charges were framed, the Prevention of Terrorism Act, 2002 was enacted  and brought into force with effect from 28th March, 2002. By the same Act, the  Prevention of Terrorism (2nd) Ordinance, 2001 was repealed subject to a  saving provision. The charges were framed on 4th June, 2002 and the trial  before the designated Judge commenced on 4th July.  An Advocate was  nominated by the court at State’s expense for providing legal assistance to the  accused Afzal as he did not engage any counsel on his own. Subsequently, the  counsel was changed.  Before the trial started, an order was passed by the  learned designated Judge that certain documents viz. post-mortem reports  and documents relating to recoveries of arms, explosives etc. from the scene  of occurrence shall be treated as undisputed evidence in view of the consent  given by the accused persons and there was no need for formal proof of those  documents.  After the trial commenced, an application was moved on behalf of  Gilani, Shaukat and Navjot challenging the admissibility of the intercepted  conversations in evidence.  The learned Judge of the designated Court rejected  their contention by his order dated 11.7.2002. Assailing this order, the

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accused moved the High Court.  The High Court set-aside the order of the  designated court and allowed the applications of the   accused.  The SLP filed  against that order was disposed of by this Court on 9.5.2003 during the  pendency of the appeals in the High Court holding inter alia that the order  passed by designated Judge was in the nature of an interlocutory order against  which appeal or revision was barred under Section 34 POTA. Without  expressing any opinion on the merits, the parties were permitted to urge the  point at issue before the Division Bench of the High Court.  The decision is  reported in (2003) 6 SCC 641.    The verdict of the trial court was given on  16th and 18th December, 2002. The details of conviction and sentences have  already been referred to. As noticed earlier, the High Court allowed the  appeals of A3 and A4 and dismissed the appeals of A1 and A2 and their death  sentences were confirmed. 5.      Preliminary submissions: (i)     There are certain issues which arise at the threshold viz., validity of  sanction orders, non-addition of POTA offences at the beginning and framing of  charges which need to be addressed before we embark on a discussion of other  questions. Sanction: (ii)            Section 50 of POTA enjoins that no Court shall take cognizance of  offences under the Act "without the previous sanction of the Central  Government or as the case may be, the State Government". So also, Section  196 of the Code of Criminal Procedure enacts a bar against taking cognizance  of any offence punishable under Chapter VI of the Indian Penal Code except  with the previous sanction of the Central Government or the State  Government.  Some of the offences charged in the present case are under  Chapter VI of IPC.  (iii)           It is first contended by the learned senior counsel Mr. Ram  Jethmalani, that the sanctions were not given, nor signed by the competent  authority. It is submitted that in relation to the Union Territory, only Central  Government is competent. Delhi being a Union Territory known as the National  Capital Territory of Delhi  with effect from the date of commencement of the  Constitution (69th Amendment Act), the Central Government alone is the  competent authority to accord sanction.  In the present case, both under POTA  and Cr.P.C. sanctions have been accorded ’by order and in the name of the Lt.  Governor of the National Capital Territory of Delhi’. The Lt. Governor did not  act on behalf of the Central Government nor did he act as Administrator of U.T.   He acted as the Constitutional head of the Government of NCT of Delhi and  played the role assigned to him under Section 41 of NCT of Delhi Act, as the  authentication in the order shows. Therefore, it is submitted that the sanction  purportedly granted under Section 50 of POTA is a nullity.  (iv)            We find no substance in these contentions. Section 2(h) of POTA  read with Articles 239 & 239AA of the Constitution of India furnish complete  answers to these arguments and that is what the learned senior counsel for the  State has highlighted. ’State Government’ is defined in Section 2(h) of POTA and it says that "in  relation to a Union Territory, ’State Government’ means the Administrator  thereof". The expression ’Administrator’ finds place in Article 239 of the  Constitution of India. Article 239(1) reads\005"Save as otherwise provided by  Parliament by law, every Union Territory shall be administered by the President  acting to such an extent as he thinks fit through an Administrator to be  appointed by him with such designation as he may specify". Article 239AA  inserted by the Constitution (69th Amendment Act, 1991) effective from  1.2.1992 lays down that from that date, the Union Territory of Delhi shall be  called the NCT of Delhi and "the Administrator thereof appointed under Article  239 shall be designated as the Lt. Governor." By such designation as the Lt.  Governor, the constitutional functionary contemplated by Article 239, namely,  the Administrator has not lost his status as Administrator. The designation of  Administrator gets merged into the new designation of Lt. Governor in keeping  with the upgraded status of this particular Union Territory. Thus, the Lt.  Governor who continues to be the Administrator also derives his or her  authority to grant sanction under Section 50 of POTA by virtue of the  legislative fiction created by Clause (h) of Section 2 read with Article 239.  The  Administrator is deemed to be the State Government for the purpose of  Section 50 of POTA.  In effect and in substance, there is a clear delegation of

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power statutorily conferred in favour of the Administrator (designated as Lt.  Governor) in respect of granting sanction under POTA. The fact that the  sanction order carries the designation of the Lt.Governor is of no consequence  and does not in any way impinge on the operation of Section 2(h) read with  Article 239. POTA is a Parliamentary enactment. Sub-Clause (b) of Clause 3 of  Article 239AA makes it explicit that notwithstanding the law making power  conferred on the Legislative Assembly of NCT, the Parliament retains its power  under the Constitution to make laws with respect to any matter for a Union  Territory or any part thereof. The reliance sought to be placed on Goa  Sampling Employees’ Association Vs. G.S. Co. of India Pvt. Ltd. [(1985)  1 SCC 206] is rather misconceived.  That case turned on the interpretation of  the expression ’appropriate Government’ occurring in Section 10 of the  Industrial Disputes Act, 1947.  The industrial dispute pertained to the workmen  employed at Mormogao Port which is located in the then union territory of Goa,  Daman and Diu.  It was contended by the employer that the Central  Government was not competent to refer the dispute to the Tribunal for  adjudication.  This contention found favour with the High Court of Bombay  which held that the Administrator appointed under Article 239 of the  Constitution is the State Government for the Union Territory of Goa and is the  appropriate Government within the meaning of Section 2(a) of the Industrial  Disputes Act.  The judgment of the High Court was reversed by this Court after  referring to Articles 239 and 239 A and the provisions of the Govt. of Union  Territories Act, 1963 and the definitions of General Clauses Act and observed  thus: "On a conspectus of the relevant provisions of the Constitution  and the 1963 Act, it clearly transpires that the concept of State  Government is foreign to the administration of Union Territory and  Article 239 provides that every Union Territory is to be  administered by the President.  The President may act through an  administrator appointed by him.  Administrator is thus the  delegate of the President.  His position is wholly different from  that of a Governor of a State.  Administrator can differ with his  Minister and he must then obtain the orders of the President  meaning thereby of the Central Government.  Therefore, at any  rate the administrator of Union Territory does not qualify for the  description of a State Government.  Therefore, the Central  Government is the ’appropriate Government’.  

That decision, in our view, has no relevance. This Court was not called upon to  consider a specific provision like Section 50 or Section 2(h) of POTA. We are,  therefore, of the view that by virtue of specific statutory delegation in favour of  the Administrator who is constitutionally designated as Lt.Governor as well, the  sanction accorded by the said authority is a valid sanction under Section 50 of  POTA. It is of relevance to note that the order of sanction under POTA  (Ext.P11/1) itself recites that the Lt.Governor acted in exercise of powers  conferred by Section 50 read with Clause (h) of sub-Section (1) of Section 2 of  POTA.   We find on the perusal of relevant file that the Lt.Governor saw the file  and he himself approved the proposed sanction. The grant of sanction was not  an act done by a delegate of the Lt. Governor under the Business Rules.  It  may be noted that the sanction file was produced before the trial Court and  was allowed to be perused by the defence counsel vide para 149 of the trial  Court’s judgment. (v)             As regards the sanction under Section 196 Cr.P.C. it is recited in  the sanction order (Ext.P11/2) that the Lt. Governor acted in exercise of  powers conferred by sub-Section (1) of Section 196 Cr.P.C. read with the  Government of India, Ministry of Home Affairs notification dated 20th March,  1974. Under that notification, there was delegation of powers to the Lt.  Governor to grant sanction. The said notification which finds place in the  Annexures to the written submissions made on behalf of Gilani shows that it  was issued under Article 239(1) of the Constitution enabling the Administrator  of the Union Territory to discharge powers and functions of the State  Government under the Cr.P.C. We accept the submission of the learned senior  counsel for the State that the delegation of power contained in the said  notification will continue to operate unless the Parliament by law provides  otherwise. The Government of NCT of Delhi Act, 1991 does not in any way

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affect the validity of delegation contained in the Presidential Notification issued  under Article 239.  We therefore hold that the sanctions under Section 50 of POTA and  Section 196 of Cr.P.C. were accorded by a competent authority. (vi)            Touching on the validity of sanction, the next point urged by   Mr.  Ram Jethmalani was that there was no proper application of mind by the  authority granting the sanction. There was no sanction for the offences under  POTA whereas sanction was given for inapplicable offences under the Indian  Penal Code. The facts constituting the offence have not been stated in the  sanction order and no evidence has been adduced to show that the competent  authority addressed himself to the relevant facts and material.  The careless and inept drafting of the sanction order has given scope for  some of these comments. Surprisingly, in the first para of the order containing  recital as to the prima facie satisfaction of the Lt.Governor the POTA offences  are not specifically mentioned. They are however embraced within the  residuary terminology "along with other offences". Instead of mentioning the  POTA offences specifically and conspicuously in the order passed under Section  50 of the POTA, the drafter reversed that process by mentioning the POTA  offences under the residuary expression "apart from other offences".  However,  in our view, this careless drafting cannot deal a fatal blow to the sanction  order. Looking at the substance and reading the entirety of the order, we come  to the irresistible conclusion that the sanction was duly given for the  prosecution of the accused for the offences under POTA after the competent  authority (Lt.Governor) had reached the satisfaction prima facie in regard to  the commission of the POTA offences as well. A specific reference to the POTA  offences mentioned in FIR is contained in the opening part of the order. The  order then contains the recital that the Lt.Governor was satisfied that the four  accused persons "have prima facie committed offences punishable under  Sections 121, 121A, 122, 124 and 120B of the IPC being involved in criminal  conspiracy to commit the said offences with intention of waging war against  the Government of India along with other offences." In the context in which  the expression ’along with other offences’ occurs, it must be reasonably  construed so as to be referable to POTA offences mentioned in the opening  clause. The operative part of the order is more explicit inasmuch as the  Lt.Governor granted sanction for the prosecution of the four accused in a  competent Court "for committing the said offences punishable under Sections  3, 4, 5, 20 & 21 of the POTA".   It is pertinent to notice that in the sanction  order under Section 196 Cr.P.C. the POTA offences do not find specific mention  at all. Thus, a distinction was maintained between the sanction under POTA  and the sanction under Cr.P.C. The other submission that the addition of the offence under Section 120B  which does not require sanction, reveals total non-application of mind, does  not appeal to us. Though the conspiracy to commit the offences punishable by  Section 121 is covered by Section 121A, probably Section 120B was also  referred to by way of abundant caution though the prosecution for the said  offence does not require sanction. At any rate, the insertion of a seemingly  overlapping provision does not and cannot affect the validity of the sanction  order. Nor can it be said that the addition of Section 124 which has really no  application to the present case by itself vitiates the sanction order. From the  insertion of one inapplicable provision, a reasonable inference cannot be drawn  that there was no application of mind by the competent authority. A meticulous  and legalistic examination as to the offences applicable and not applicable is  not what is expected at the stage of granting sanction. It was observed by the  Privy Council in Gokulchand Dwarkadas Vs. The King [AIR 1948 Privy  Council 82] that, "the charge need not follow the exact terms of the sanction,  though it must not relate to an offence essentially different from that to which  the sanction relates". In any case we do not think that the mention of an  inapplicable Section goes to the root of the matter or otherwise makes it  vulnerable to attack. On the validity of sanction, we have to consider yet another contention  of the learned senior counsel Mr. R. Jethmalani that in the absence of recital of  facts to sustain prosecution or proof of consideration of such facts, the sanction  order must be held to have been vitiated on the ground of non-application of  mind. Relying on the dicta of the Privy Council in Gokulchand’s case, it has  been pointed out that no facts constituting the relevant offences were set out

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in the order nor any extraneous evidence was let in to show that the  sanctioning authority was seized of the facts alleged to constitute the relevant  offence.  In Gokulchand’s case (supra), the sanction order of the Government  was a bald order stating that the Government was "pleased to accord sanction  under Clause 23 of Cotton Cloth and Yarn (Control) Order to the prosecution of  Mr. Gokulchand Dwarkadas for breach of the provisions of Clause 18(2) of the  said order". The Privy Council held that the sanction read with the evidence  adduced at the trial was not in compliance with the provisions of Clause 23 of  the said Control Order. The following observations in that judgment may be  noted: "\005In their Lordships’ view, in order to comply with the provisions of  clause 23, it must be proved that the sanction was given in respect  of the facts constituting the offence charged. It is plainly desirable  that the facts should be referred to on the face of the sanction, but  this is not essential, since clause 23 does not require the sanction to  be in any particular form, nor even to be in writing. But if the facts  constituting the offence charged are not shown on the face of the  sanction, the prosecution must prove by extraneous evidence that  those facts were placed before the sanctioning authority\005"

The ruling of the Privy Council was cited with approval by this Court in  Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124] and certain other  cases.  Ultimately, the test to be applied is whether relevant material that  formed the basis of allegations constituting the offence was placed before the  sanctioning authority and the same was perused before granting sanction.    We are of the view that this test has been amply satisfied in the instant case.  The sanction orders on their face indicate that all relevant material viz., FIR,  disclosure statements, recovery memos, draft charge sheet and other material  on record was placed before the sanctioning authority. The fact that the  sanctioning authority perused all this material is also discernible from the  recital in the sanction orders. The sanction orders make it clear that the  sanctioning authority had reached the satisfaction that prima facie the accused  committed or conspired to commit the offences mentioned therein. The  elaborate narration of facts culled out from the record placed before the  sanctioning authority and the discussion as to the applicability of each and  every Section of the penal provision quoted therein is not an imperative  requirement. A pedantic repetition from what is stated in the FIR or the draft  charge-sheet or other documents is not what is called for in order to judge  whether there was due application of mind.  It must be noted that the grant of  sanction is an executive act and the validity thereof cannot be tested in the  light of principles applied to the quasi-judicial orders vide the decisions in  State of Bihar Vs. P.P. Sharma [(1992) supp.1 SCC 222] and  Superintendent of Police Vs. Deepak Chowdary [(1995) 6 SCC 225].  Apart from this, the oral evidence of PW11\027Deputy Secretary, Home who  dealt with the file also reveals that the notes prepared by himself and the  Principal Secretary, Home had drawn the attention of the Lt. Governor to the  role of individual accused and the Principal Secretary’s note was approved by  the Lt. Governor. Various documents placed before the sanctioning authority  were also mentioned by PW11. PW11 brought the original sanction file and it is  seen from the judgment of the trial Court that the learned trial Judge had gone  through the file apart from making it available to the defence counsel. The oral  evidence let in by the prosecution by examining PW11 dispels any doubt as to  the consideration of the matter by the sanctioning authority before according  the sanction.  The decision of this Court in Rambhai Nathabhai Gadhvi &  Ors. Vs. State of Gujarat [(1997) 7 SCC 744] which invalidated the  sanction granted by the competent authority under the Terrorist and  Disruptive Activities (Prevention) Act does not come to the aid of the accused  in the present case. The Bench consisting of A.S. Anand and K.T. Thomas, JJ.,  after referring to the infirmities in the sanction order, observed thus: "In such a situation, can it be said that the sanctioning authority granted  sanction after applying its mind effectively and after reaching a satisfaction  that it is necessary in public interest that prosecution should be launched  against the  accused under TADA.  As the provisions of TADA are more  rigorous and the penalty provided is more stringent and the procedure for  trial prescribed is summary and compendious, the sanctioning process

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mentioned in Section 20-A(2) must have been adopted more seriously and  exhaustively than the sanction contemplated in other penal statutes\005"

The above observations do not mean that different standards should be  applied for judging the validity of a sanction made under the provisions of  TADA or POTA and the sanctions under ordinary laws. That is not the ratio of  the decision. The learned Judges were only pointing out that enough  seriousness was not bestowed in the process of granting sanction for  prosecution under a stringent law.  The observations contained in para 10  turned on the facts of that case which are telling.  It was noticed that the only  document sent to the sanctioning authority, namely, the Director General of  Police, was the FIR and the letter of the Superintendent of Police giving only  skeletal facts. It was further noticed that the Director-General did not even  grant sanction for the prosecution but what he did was to give permission to  add certain Sections of TADA. Thus, it was a case of utter non-compliance with  the elementary requirements governing sanction. The facts of the present case  are vastly different. No separate argument was addressed in relation to the sanction given  under the Explosive Substances Act. Suffice it to say that we find no legal  infirmity in the said order passed by the Commissioner of Police which is Ext.  PW11/3. Addition of POTO/POTA offences  (6) (i) The next question is whether the addition of offences under  Sections 3, 4 & 5 of POTO? was justified and whether POTO should have been  invoked by the Investigating Officer on the very first day when the FIR was  registered. This question will have a bearing on the admissibility of intercepted  telephonic conversations which took place prior to 19th December and the  compliance with the provisions of Section 52 of POTA which lays down certain  safeguards from the point of view of the accused. Chapter V contains  provisions relating to interception of communications. Section 45 which starts  with a non-obstante clause lays down that the evidence collected through the  interception of wire, electronic or oral communication under Chapter V shall be  admissible as evidence against the accused during the trial of the case. There  are two provisos to the Section and the 1st proviso reads as follows. "Provided that, the contents of any wire, electronic or oral  communication intercepted pursuant to this Chapter or evidence  derived therefrom shall not be received in evidence or otherwise  disclosed in any trial, hearing or other proceeding in any court  unless each accused has been furnished with a copy of the order  of the Competent Authority and accompanying application, under  which the interception was authorized or approved not less than  ten days before trial, hearing or proceeding:"

It is common ground that the embargo placed by the first proviso comes  into operation in the instant case inasmuch as no orders were obtained for  interception from a competent authority in compliance with the various  provisions of Chapter V.  The embargo under proviso to Section 45 is equally  applicable when the special Court tries along with the POTA offences, the  offences under other enactments viz., IPC, Explosives Act and Arms Act. That  is one aspect. Secondly, there are certain procedural safeguards that are laid  down in Section 52 when a person is arrested for the offences under POTA.  These safeguards were apparently introduced in keeping with the guidelines  laid down in D.K. Basu’s case. They are discussed in detail later on. The  question arises whether there was deliberate failure on the part of the  investigating agency to invoke POTA initially in order to circumvent the  requirements of Sections 45 & 52. (ii)            Incidentally, another question raised is whether there was  manipulation of FIR by not showing the POTA offences though in fact POTA  was resorted to by that date.  In regard to the latter aspect, the learned  counsel for the accused has drawn our attention to the letter of AIRTEL (Cell  phone service provider) addressed to the I.O.\027M.C. Sharma (PW66). In that  letter (Ext.PW35/1), while giving the reference to the FIR dated 13.12.2001,  the offences under various Sections of POTO were mentioned in addition to  other offences. From this, an inference is sought to be drawn that the FIR was  tampered with by deleting reference to POTO Sections so as to make it appear

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that on the 13th & 14th December when the interceptions took place, the  investigation was not extended to POTO offences. We find it difficult to accept  this contention. We find no basis for the comment that the FIR would have  been manipulated by deleting the POTO offences. No such suggestion was ever  put to the police officials concerned, namely, PWs 1, 9 & 14 connected with the  registration of FIR and they were not even cross-examined. The original FIR  register was produced by PW14. The trial Court perused the same while  recording the depositions and returned it. In fact, this contention about the  manipulation of FIR was not even raised in the trial Court. The High Court  rightly found no substance in this contention. As regards the letter of AIRTEL,  no question was put to PW35\027the Security Manager of AIRTEL as to the basis  on which the reference was given to the FIR mentioning various POTO  offences. When the question was raised for the first time before the High  Court, the High Court perused the case diaries and found that the addressee of  the letter (Inspector M.C. Sharma) had sent up a written request on  25.12.2001 to furnish the requisite information to him. By that time, the POTO  provisions were invoked. According to the High Court, there was every  possibility that in that letter of 25.12.2001, the POTO provisions were  mentioned and based on that, the same would have been noted in the  AIRTEL’s letter. The High Court also observed that the possibility of the date  17th being a mistake cannot be ruled out.  Irrespective of the question whether  the High Court was justified in observing that the date 17th noted in (Ext.  PW35/1) could be a mistake, we do not consider it necessary to delve further  into this aspect, in view of the fact that none of the witnesses pertaining to FIR  were cross examined. By reason of the purported description of FIR given in  the letter of AIRTEL (Ext.PW35/1) alone, we cannot reach the conclusion that  POTO offences entered initially in the FIR were deleted for extraneous reasons.  It is pertinent to note that the letters addressed by the Essar Cell phone  provider (vide Exts.36/6 and 36/7, dated 13th and 18th December) do not  contain any reference to POTO. (iii)           It was next contended by the learned counsel appearing for  Shaukat and Gilani that from the beginning it was crystal clear that the  persons who attempted to take control of the Parliament House were terrorists  and there was no apparent reason why the offences under POTO were not  entered in the FIR. Attention is drawn to the fact that the language used in the  narration given by PW1 in the ’rukka’, viz. "the terrorist organizations in order  to disintegrate the unity and integrity of India and to carry out destructive  activities in a planned manner\005\005." is a clear pointer that the investigating  authority was conscious of applicability of POTO from the beginning, it is  contended. Though we feel that POTO provisions could have been invoked on  the very first day having regard to the nature and manifestations of this grave  crime, we find no justification to characterize the action of the concerned  police officers as malafide or motivated. It cannot be disputed that POTA  contains drastic and stringent provisions\027both substantive and procedural, for  dealing with special categories of offences which have bearing on the security  and integrity of the country. In view of this special feature of the law, it is  necessary to bestow sufficient care and thought before prosecuting an offender  under this special law instead of proceeding under the ordinary law. This  aspect has been emphasized in more than one decision of this Court dealing  with TADA provisions. In Niranjan Singh Karam Singh Punjabi Vs.  Jitendra Bhimraj Bijiaya [(1990) 4 SCC 76] this Court after noticing the  views expressed in Usmanbhai Dawoodbhai Memon Vs. State of Gujarat  [(1988) 2 SCC 271] observed thus: "\005the provisions of the Act need not be resorted to if the nature of  the activities of the accused can be checked and controlled under  the ordinary law of the land. It is only in those cases where the  law enforcing machinery finds the ordinary law to be inadequate  or not sufficiently effective for tackling the menace of terrorist and  disruptive activities that resort should be had to the drastic  provisions of the Act. While invoking a criminal statute, such as  the Act, the prosecution is duty-bound to show from the record of  the case and the documents collected in the course of  investigation that facts emerging therefrom prima facie constitute  an offence within the letter of the law. \005"

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In Usmanbhai’s case it was said; "Before dealing with the contentions advanced, it is well to  remember that the legislation is limited in its scope and effect.  The Act is an extreme measure to be resorted to when the police  cannot tackle the situation under the ordinary penal law. The  intendment is to provide special machinery to combat the growing  menace of terrorism in different parts of the country. Since,  however, the Act is a drastic measure, it should not ordinarily be  resorted to unless the Government’s law enforcing machinery  fails."

Having regard to these observations, we cannot find fault with the  Investigating Officers in going slow in bringing POTA into picture. At any rate,  it may be a case of bona fide error or overcautious approach. Once the action  of the police authorities in deferring the invocation of POTA is held to be not  mala fide, it is not possible to countenance the contention that the provisions  of POTA especially those contained in Chapter V and Section 52 ought to have  been complied with even before 19th December. It is a different matter that  D.K. Basu’s guidelines were already there. The learned counsel Mr. Gopal Subramanium has referred to the  judgment of this Court in State of West Bengal Vs. Mohammed Khaleed  [(1995) 1 SCC 684] to buttress his contention that the non- invocation of  POTA on the first day cannot be faulted. The learned counsel also argued that  POTA was invoked on 19th when further evidence came to light revealing a  planned terrorist act at the behest of certain terrorist organizations. Be that as  it may, we find nothing on record to hold that the investigating officials  deliberately and without semblance of justification decided to bypass the  provisions of POTO. Charges whether defective? 7 (i)           We now turn to the next contention of the charges being defective.  According to Shri Ram Jethmalani, the first charge which is a charge under  Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to  wage war and to commit a terrorist act is punishable under Section 121A IPC  and Section 3(3) of the POTA respectively. Therefore, according to the learned  counsel, the charge under Section 120B is misplaced. It is also contended that  the charge does not set out in clear terms, the exact period during which the  conspiracy was allegedly hatched. The learned counsel further submits that the  alleged confessional statements on which the prosecution relied would clearly  show that the conspiracy started only in the first week of December, 2001, yet  the period of offence was stated to be "on or before 13.12.2001". (ii)            It is settled law that a ’fundamental defect’ should be found in the  charges if the Court has to quash it. Whether the accused was misled and  whether there was reasonable possibility of prejudice being caused to the  accused on account of defective charges are relevant considerations in judging  the effect of wrong or deficient charges.  Section 215 of Cr.P.C. makes it clear  that no error or omission in stating either the offence or the particulars  required to be stated shall be regarded as material unless the accused was in  fact misled by such error or omission and it has occasioned a failure of justice.   The test of prejudice or reasonable possibility of prejudice was applied by this  Court in William Slaney’s case [AIR 1956 SC 116]  in testing the argument  based on the omission, error or irregularity in framing the charges.  The same  test was also applied in State of A.P. Vs. C. Ganeswar Rao [(1964) 3 SCR  297]. It has not been demonstrated in the instant case as to how the accused  or any of them were misled or any prejudice was caused to them on account of  the alleged defects in framing of charges. No such objection was even taken  before the trial Court.   As pointed out in William Slaney’s case (para 45 of  AIR), it will always be material to consider whether the objection to the  nature of charge was taken at an early stage.  To the same effect are the  observations in Ganeswar Rao’s case (supra). It is difficult to spell out with  exactitude the details relating to the starting point of conspiracy.  As pointed  out in Esher Singh Vs. State of A.P. [(2004) (1 SCC page 585, 607], it is  not always possible "to give affirmative evidence about the date of formation  of the criminal conspiracy". We do not think that if instead of mentioning ’the  first week of December, 2001’ the wording ’before December, 2001’ is  employed, the prosecution should fail merely for that reason. The accused

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cannot be said to have been misled or prejudiced on that account. On the  other hand, it is more than clear that the accused did understand the case  they were called upon to meet. The question whether Section 120B applies to  POTA offences or Section 3(3) alone applies is not a matter on which a definite  conclusion should be reached ahead of the trial.  It is not uncommon that the  offence alleged might seemingly fall under more than one provision and  sometimes it may not be easy to form a definite opinion as to the Section in  which the offence appropriately falls. Hence, charges are often framed by way  of abundant caution.  Assuming that an inapplicable provision has been  mentioned, it is no ground to set aside the charges and invalidate the trial. Other legal issues We shall, now, deal with certain legal issues, which have been debated  before us in extenso. These issues have a bearing on the  admissibility/relevancy of evidence and the evidentiary value or weight to be  attached to the   permissible evidence. 8. Law regarding confessions         We start with the confessions. Under the general law of the land as  reflected in the Indian Evidence Act, no confession made to a police officer can  be proved against an accused.  ’Confessions’-which  is a terminology used in  criminal law is a species of  ’admissions’ as defined in Section 17 of the Indian   Evidence Act.    An admission is a statement-oral or documentary which  enables the court to draw an inference as to any fact in issue or relevant fact.  It is trite to say that every confession must necessarily be an admission, but,  every admission does not necessarily amount to a confession. While Section 17  to 23 deals with admissions, the law as to confessions is embodied in Sections  24 to 30 of the Evidence Act.  Section 25 bars proof of a confession made to a  police officer.  Section 26 goes a step further and prohibits proof of confession  made by any person while he is in the custody of a police officer, unless it be  made in the immediate presence of a Magistrate.  Section 24 lays down the  obvious rule that a confession made under any inducement, threat or promise  becomes irrelevant in a criminal proceeding.  Such inducement, threat or  promise need not be proved to the hilt.  If it appears to the court that the  making of the confession was caused by any inducement, threat or promise  proceeding from a person in  authority, the confession is liable to be excluded  from evidence.  The expression  ’appears’ connotes that the Court need not go  to the extent of holding that the threat etc. has in fact been proved.  If the  facts and circumstances emerging from the evidence adduced make it  reasonably probable that the confession could be the result of threat,  inducement or pressure, the court will refrain from acting on such confession,  even if  it be a confession made to a Magistrate or a person other than police  officer. Confessions leading to discovery of    fact which is dealt with under  Section 27 is an exception to the rule of exclusion of confession made by an  accused in the custody of a police officer.  Consideration of a proved confession  affecting the person making it as well as the co-accused is provided for by  Section 30.  Briefly and broadly, this is the scheme of the law of evidence vis- a-vis confessions.  The allied provision which needs to be noticed at this  juncture  is Section 162 of the Cr.P.C.  It prohibits the use of any statement  made by any person to a police officer in the course of investigation for any  purpose at any enquiry or trial in respect of any offence under investigation.   However, it can be used to a limited extent to contradict a witness  as provided  for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it  explicit that the embargo laid down in the Section shall not be deemed to apply  to any statement falling within clause (1) of Section 32 or to affect the  provisions of Section 27 of the Evidence Act. In the Privy Council decision of P. Narayana Swami  vs.  Emperor  [AIR 1939 PC 47] Lord Atkin elucidated the meaning and purport of the  expression ’confession’ in the following words: "\005. A confession must either admit in terms the offence, or at any  rate substantially all the facts which constitute the offence.  An  admission of a gravely incriminating fact, even a conclusively  incriminating fact is not of itself a confession."

       Confessions are considered highly reliable because no rational person  would make admission against his interest unless prompted by his conscience  to tell the truth.  "Deliberate and voluntary confessions of guilt, if clearly

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proved are among the most effectual proofs in law". (vide Taylor’s  Treatise on  the Law of Evidence Vol. I). However, before acting upon a confession the  court must be satisfied that it was freely and voluntarily made.  A confession  by hope or promise of advantage, reward or immunity or by force or by fear  induced by violence or threats of violence cannot constitute evidence against  the maker of confession.  The confession should have been made with full  knowledge of the nature and consequences of the confession.  If any  reasonable doubt is entertained by the court that these ingredients are not  satisfied, the court should eschew the confession from consideration.  So also  the authority recording the confession \026 be it a Magistrate or some other  statutory functionary at the pre-trial stage, must address himself to the issue  whether the accused has come forward to make the confession in an  atmosphere free from fear, duress or hope of some advantage or reward  induced by the persons in authority.  Recognizing the stark reality of the  accused being enveloped in a state of fear and panic, anxiety and despair while  in police custody, the Indian Evidence Act has excluded the admissibility of a  confession made to the police officer.          Section 164 of Cr.P.C. is a salutary provision which lays down certain  precautionary rules to be followed by the Magistrate recording a confession so  as to ensure the voluntariness of the confession and the accused being placed  in a situation free from threat or influence of the police.         Before we turn our attention to the more specific aspects of confessions  under POTA, we should have a conspectus of the law on the evidentiary value  of confessions which are retracted - which is a general feature in our country  and elsewhere.  As to what should be the legal approach of the Court called upon to  convict a person primarily in the light of the confession or a retracted  confession has been succinctly summarized in Bharat vs. State of U.P.   [1971 (3) SCC 950]. Hidayatullah, C.J., speaking for a three-Judge Bench  observed thus: "Confessions can be acted upon if the court is satisfied that they  are voluntary and that they are true.  The voluntary nature of the  confession depends upon whether there was any threat,  inducement or promise and its truth is judged in the context of the  entire prosecution case.  The confession must fit into the proved  facts and not run counter to them.  When the voluntary character  of the confession and its truth are accepted, it is safe to rely on it.   Indeed a confession, if it is voluntary and true and not made  under any inducement or threat or promise, is the most patent  piece of evidence against the maker.  Retracted confession,  however, stands on a slightly different footing.  As the Privy  Council once stated, in India it is the rule to find a confession and  to find it retracted later.  A court may take into account the  retracted confession, but it must look for the reasons for the  making of the confession as well as for its retraction, and must  weigh the two to determine whether the retraction affects the  voluntary nature of the confession or not.  If the court is satisfied  that it was retracted because of an after-thought or advice, the  retraction may not weigh with the court if the general facts proved  in the case and the tenor of the confession as made and the  circumstances of its making and withdrawal warrant its user.  All  the same, the courts do not act upon the retracted confession  without finding assurance from some other sources as to the guilt  of the accused.  Therefore, it can be stated that a true confession  made voluntarily may be acted upon with slight evidence to  corroborate it, but a retracted confession requires the general  assurance that the retraction was an after-thought and that the  earlier statement was true.  This was laid down by this Court in an  earlier case reported in Subramania Gounden v. The State of  Madras  (1958 SCR 428)."

The same learned Judge observed in Haroom Hazi Abdulla v. State of  Maharashtra [1968 (2) SCR 641] that a "retracted confession must be  looked upon with greater concern unless the reasons given for having made it  in the first instance are on the face of them false."  There was a further

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observation in the same paragraph that retracted confession is a weak link  against the maker and more so against a co-accused.  With great respect to  the eminent Judge, the comment that the retracted confession is a "weak link  against the maker" goes counter to a series of decisions.  The observation  must be viewed in the context of the fact that the Court was concentrating on  the confession of the co-accused rather than the evidentiary value of the  retracted confession against the maker.   Dealing with retracted confession, a four-Judge Bench of this Court  speaking through Subba Rao, J, in Pyare Lal v. State of Assam (AIR 1957  SC 216), clarified the legal position thus: "A retracted confession may form the legal basis of a conviction if  the court is satisfied that it was true and was voluntarily made.   But it has been held that a court shall not base a conviction on  such a confession without corroboration.  It is not a rule of law,  but is only rule of prudence. It cannot even be laid down as an  inflexible rule of practice or prudence that under no circumstances  such a conviction can be made without corroboration, for a court  may, in a particular case, be convicted of the absolute truth of a  confession and prepared to act upon it without corroboration; but  it may be laid down as a general rule of practice that it is unsafe  to rely upon a confession, much less on a retracted confession,  unless the court is satisfied that the retracted confession is true  and voluntarily made and has been corroborated in material  particulars."

As to the extent of corroboration required, it was observed in  Subramania Gounden’s case (1958 SCR 428) that each and every  circumstance mentioned in the retracted confession regarding the complicity of  the maker need not be separately and independently corroborated. The  learned Judges observed : "it would be sufficient in our opinion that the general trend of the  confession is substantiated by some evidence which would tally  with what is contained in the confession".  

Then we have the case of Shankaria v. State of Rajasthan [1978 (3)  SCC 435] decided by a three-Judge Bench.  Sarkaria, J, noted the twin tests  to be applied to evaluate a confession: (1) whether the confession was  perfectly voluntary and (2) if so, whether it is true and trustworthy.  The  learned Judge pointed out that if the first test is not satisfied the question of  applying the second test does not arise.  Then the Court indicated one broad  method by which a confession can be evaluated.  It was said: "The Court should carefully examine the confession and compare it  with the rest of the evidence, in the light of the surrounding  circumstances and probabilities of the case.  If on such examination  and comparison, the confession appears to be a probable catalogue  of events and naturally fits in with the rest of the evidence and the  surrounding circumstances, it may be taken to have satisfied the  second test."   In Parmanand Pegu v. State of Assam [2004 (7) SCC 779] this  Court while adverting to the expression "corroboration of material particulars"  used in Pyare Lal Bhargava’s case clarified the position thus: "By the use of the expression ’corroboration of material  particulars’, the Court has not laid down any proposition contrary  to what has been clarified in Subramania Goundan case as  regards the extent of corroboration required.  The above  expression does not imply that there should be meticulous  examination of the entire material particulars.  It is enough that  there is broad corroboration in conformity with the general trend  of the confession, as pointed out in Subramania Goundan case."

The analysis of the legal position in paragraphs 18 & 19 is also worth  noting: "Having thus reached a finding as to the voluntary nature of a  confession, the truth of the confession should then be tested by

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the court.  The fact that the confession has been made voluntarily,  free from threat and inducement, can be regarded as presumptive  evidence of its truth. Still, there may be circumstances to indicate  that the confession cannot be true wholly or partly in which case it  loses much of its evidentiary value.

In order to be assured of the truth of confession, this Court, in a  series of decisions, has evolved a rule of prudence that the court  should look to corroboration from other evidence.  However, there  need not be corroboration in respect of each and every material  particular. Broadly, there should be corroboration so that the  confession taken as a whole fits into the facts proved by other  evidence.  In substance, the court should have assurance from all  angles that the retracted confession was, in fact, voluntary and it  must have been true."

The use of retracted confession against the co-accused however stands  on a different footing from the use of such confession against the maker.  To come to the grips of the law on the subject, we do no more than  quoting the apt observations of Vivian Bose, J, speaking for a three-Judge  Bench, in Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC  159). Before clarifying the law, the learned Judge noted with approval the  observations of Sir Lawrence Jenkins that a confession can only be used to  "lend assurance to other evidence against a co-accused."  The legal position  was then stated thus:   "Translating these observations into concrete terms they come to  this. The proper way to approach a case of this kind is, first to  marshall the evidence against the accused excluding the  confession altogether from consideration and see whether, if it is  believed, a conviction could safely be based on it.  If it is capable  of belief independently of the confession, then of course it is not  necessary to call the confession in aid.  But cases may arise where  the Judge is not ’prepared set on the other evidence as it stands  even though, if believed, it would be sufficient to sustain a  conviction.  In such an event the Judge may call in aid the  confession and use it to lend assurance to the other evidence and  thus fortify himself in believing what without the aid of the  confession he would not be prepared to accept."  

The crucial expression used in Section 30 is "the Court may take into  consideration such confession".  These words imply that the confession of a co- accused cannot be elevated to the status of substantive evidence which can  form the basis of conviction of the co-accused.  The import of this expression  was succinctly explained by the Privy Council in Bhuboni Sahu vs. King (AIR  1947 PC 257) in the following words: "The Court may take the confession into consideration and  thereby, no doubt, makes its evidence on which the Court may  act; but the section does not say that the confession is to amount  to proof.  Clearly there must be other evidence.  The confession is  only one element in the consideration of all the facts proved in the  case; it can be put into the scale and weighed with the other  evidence".                                                     (emphasis supplied)

After referring to these decisions, a Constitution Bench of this Court in  Haricharan Kurmi v. State of Bihar [1964 (6) SCR 623] further clarified  the legal position thus: "\005\005.In dealing with a case against an accused person, the Court  cannot start with the confession of co-accused person; it must  begin with other evidence adduced by the prosecution and after it  has formed its opinion with regard to the quality and effect of the  said evidence, then it is permissible to turn to the confession in  order to receive assurance to the confession  of guilt which the  judicial mind is about to reach on the said other evidence."                                                           

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(emphasis supplied)

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 of (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\005.."  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\005.  shall be admissible in the trial of such person for an offence under the Act or  the rules, subject to other provisions 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 bound 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 or Chief Judicial 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. 9. Section 15 of TADA It is necessary to advert to the exposition of law on the probative quality  of the confession recorded by the empowered police officer under Section 15 of  TADA Act. We may recall that under Section 15, the confession is admissible in  the trial of the person who made the confession or the co- accused/abettor/conspirator. In State vs. Nalini (supra), Thomas, J took the  view that the confession coming within the purview of Section 15 is a  substantive evidence as against the maker thereof but it is not so as against  the co-accused/abettor or conspirator in relation to whom it can be used only  as a corroborative piece of evidence.  Wadhwa, J, held that the confession of  an accused serves as a substantive evidence against himself as well as against  the co-accused, abettor or conspirator.  S.S.M. Quadri, J, broadly agreed with  the view taken by Wadhwa, J.  The following observations made by the learned  Judge reflect his view-point:  "On the language of sub-section (1) of Section 15, a confession of  an accused is made admissible evidence as against all those tried  jointly with him, so it is implicit that the same can be considered  against all those tried together.  In this view of the matter also,  Section 30 of the Evidence Act need not be invoked for  consideration of confession of an accused against a co-accused,  abettor or conspirator charged and tried in the same case along  with the accused."

The learned Judge further observed that in view of the non obstante provision  of Section 15(1), the application of Section 30 of the Evidence Act should be  excluded and therefore the considerations  germane to Section 30 cannot be

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imported in construing Section 15(1).  Quadri, J, therefore dissented from the  view taken by   Thomas, J.  At the same time the learned Judge was of the  view that in so far as the use of confession against the co-accused is  concerned, rule of prudence requires that it should not be relied upon "unless  corroborated generally by other evidence on record". In paragraph 705, the  learned Judge made the following observations:  "But I wish to make it clear that even if confession of an accused  as against a co-accused tried with the accused in the same case is  treated as ’substantive evidence’ understood in the limited sense  of fact in issue or relevant fact, the rule of prudence requires that  the court should examine the same with great care keeping in  mind the caution given by the Privy Council in Bhuboni Sahu  case",

keeping in view the fact that the confession of a co-accused is not required to  be given under oath and its veracity cannot be tested by cross-examination is  yet another reason given by the learned      Judge for insisting on such  corroboration. Thus the learned Judge struck a balance between two extreme  arguments. The view taken by Quadri, J. does not seem to conflict with the  view of Wadhwa, J.  Though Wadhwa, J. observed that confession of the  accused is admissible with the same force in its application to the co-accused  and it is in the nature of substantive evidence, the learned Judge, however,  qualified his remarks by observing thus: ‘"Substantive evidence, however, does not necessarily mean  substantial evidence.  It is the quality of evidence that matters.   As to what value is to be attached to a confession will fall within  the domain of appreciation of evidence.  As a matter of prudence,  the court may look for some corroboration if confession is to be  used against a co-accused though that will again be within the  sphere of appraisal of evidence."

Thomas, J. was of the view that the non-obstante words in Section 15(1) of  TADA were not intended to make it substantive evidence against the non- maker, and it can be used only as a piece of corroborative material to support  other substantive evidence.  Reference is to be made to a recent decision of this Court in Jameel  Ahmed & anr. V. State of Rajasthan [2003 (9) SCC 673] \026 a case arising  under TADA. After a survey of the earlier cases on the subject, this Court  observed: "If the confessional statement is properly recorded satisfying the  mandatory provisions of Section 15 of TADA Act and the rules made  thereunder and if the same is found by the Court as having been made  voluntarily and truthfully then the said confession is sufficient to base  conviction of the maker of the confession."  This proposition is  unexceptionable. The next proposition, however, presents some difficulty. The  learned Judges added: "Whether such confession requires corroboration or not,  is a matter for the Court considering such confession on facts of each case."  This Court observed that once the confessional statement becomes admissible  in evidence then, like any other evidence, "it is for the Court to consider  whether such statement can be relied upon solely or with necessary  corroboration."  The ratio behind the view taken by the learned Judges is  perhaps discernible from the following passage: "We have already noticed that this provision of law is a departure  from the provisions of Sections 25 to 30 of the Evidence Act.  As a  matter of fact, Section 15 of the TADA Act operates independent  of the Evidence Act and the Code of Criminal Procedure."   

The Court then observed that the confession duly recorded under Section  15 of TADA Act becomes admissible in evidence by virtue of statutory mandate  and if it is proved to be voluntary and truthful in nature there is no reason why  such a statement should be treated as a weak piece of evidence requiring  corroboration merely because the same is recorded by a police officer.  We  have to add a caveat here, while wholeheartedly accepting the view that the  confession recorded by a police officer under Section 15(1) of TADA Act  (corresponding to Section 32(1) of POTA) stand on the same footing as the  confession recorded by a Magistrate and the Court can act upon it in spite of its

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retraction if it inspires confidence in the mind of the Judge, we feel that the  rule of corroboration evolved by this Court as a matter of prudence in relation  to a retracted confession recorded by a Magistrate under Cr.P.C. need not be  dispensed with. Viewing the confession in the light of other evidence on record  and seeking corroborative support therefrom is only a process of ascertaining  the truth of the confession and is not extraneous to the first proposition laid  down by their Lordships in paragraph 35. Viewed from another angle, we  wonder whether a confession recorded by a police officer under the special  enactment should have more sanctity and higher degree of acceptability so as  to dispense with the normal rule of corroboration and leave it to the discretion  of the court whether to insist on corroboration or not, even if it is retracted.  The better view would be to follow the same rule of prudence as is being  followed in the case of confessions under general law. The confessional  statement recorded by the police officer can be the basis of conviction of the  maker, but it is desirable to look to corroboration in a broad sense, when it is  retracted.  The non obstante provision adverted to by the learned Judges  should not, in our considered view, affect the operation of the general rule of  corroboration broadly.   As regards the confession being used against a co-accused, this Court in  Jameel Ahmed’s case (supra), laid down the following propositions: "(iii) In regard to the use of such confession as against a co- accused, it has to be held that as a matter of caution, a general  corroboration should be sought for but in cases where the court is  satisfied that the probative value of such confession is such that it  does not require corroboration then it may base a conviction on  the basis of such confession of the co-accused without  corroboration.  But this is an exception to the general rule of  requiring corroboration when such confession is to be used against  a co-accused.  

(iv) The nature of corroboration required both in regard to the use  of confession against the maker as also in regard to the use of the  same against a co-accused is of a general nature, unless the court  comes to the conclusion that such corroboration should be on  material facts also because of the facts of a particular case.  The  degree of corroboration so required is that which is necessary for  a prudent man to believe in the existence of facts mentioned in  the confessional statement."

While we agree with the proposition that the nature of corroboration  required both in regard to the use of confession against the maker and the co- accused is general in nature, our remarks made earlier in relation to the  confession against the maker would equally apply to proposition No.(iii) in so  far as it permits the Court in an appropriate case to base the conviction on the  confession of the co-accused without even general corroboration.  We would  only add that we do not visualize any such appropriate case for the simple  reason that the assurance of the truth of confession is inextricably mixed up  with the process of seeking corroboration from the rest of the prosecution  evidence.  We have expressed our dissent to this limited extent. In the normal  course, a reference to the larger Bench on this issue would be proper. But  there is no need in this case to apply or not to apply the legal position clarified  in proposition No.(iii) for the simple reason that the trial court as well as the  High Court did look for corroboration from the circumstantial evidence relating  to various facts narrated in the confessional statement.  Perhaps, the view  expressed by us would only pave the way for a fresh look by a larger Bench,  should the occasion arise in future. The learned senior counsel Mr. Ram Jethmalani severely criticised the  view taken in Nalini, Jameel Ahmed and other cases decided after Nalini. He  pointed out that the confession of a co-accused is held to be admissible in view  of the expression "shall be admissible in the trial of such person or co- accused".  But, the legislature did not intend that in deviation of the general  law, the confession of a co-accused could become the sole basis of conviction  irrespective of whether it is corroborated in relation to material particulars or  not.  The counsel commends  the acceptance of the ratio laid down by Privy  Council in Bhuboni Sahu in the context of a confession covered by Section 30

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of Evidence Act. The counsel reminds us that admissibility is one thing, and the  weight to be attached to the evidence is another. The learned counsel Mr. Ram  Jethmalani repeatedly pointed that the crucial observations of the Constitution  Bench in Kartar Singh’s case (supra) were not noticed by this Court in  Nalini’s case and this error, according to the learned senior counsel,  perpetuated.  The learned counsel has drawn our attention to the categorical  observation of this Court in paragraph 255 of the majority judgment to the  effect that "the present position is in conformity with Section 30 of the  Evidence Act."  He has also drawn our attention to the submission of the  learned Additional Solicitor General in Kartar Singh’s case that the probative  value of the confession recorded under Section 15 should be left to the Court  to be determined in each case on its own facts and circumstances. According to  the learned counsel, the confession of co-accused should not have been  elevated to the status of confession operating against the maker.  The  contention advanced by the learned senior counsel is not without force.   However, we need not dilate further on this aspect as the terminology in POTA  is different and the view which we hold is that Section 32 of POTA does not  enable the Court to take into account the confession of the co-accused.  We  shall now advert to this aspect, on a comparative reference of the provisions of  TADA Act and POTA. 10. Use of confession under POTA against co-accused 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.  The omission of  the words in POTA "or co-accused, abettor or conspirator" following the  expression "in the trial of such person"  which are the words contained in  Section 15(1) of TADA does not make material difference, according to him.  It  is his submission  that the words ’co-accused’ etc. were included by the 1993  amendment of TADA by way of abundant caution and not because the  unamended Section of TADA did not cover the confession of co-accused.   According to the learned senior counsel, the phrase "shall be admissible in the  trial of such person" does not restrict the admissibility only against the maker  of the confession.  It extends to all those who are being tried jointly along with  the maker of the confession provided they are also affected by the confession.     The learned senior counsel highlights the crucial words-"in the trial of such  person" and argues that the confession would not merely be admissible  against the maker but would be admissible in the trial of the maker which may  be a trial jointly with the other accused persons.  Our attention has been  drawn to the provisions of Cr.P.C. and POTA providing for a joint trial in which  the accused could be tried not only for the offences under POTA but also for  the offences under IPC.  We find no difficulty in accepting the proposition that  there could be a joint trial and the expression "the trial of such person" may  encompass a trial in which the accused who made the confession is tried  jointly with the other accused. From that, does it follow that the confession  made by one accused is equally admissible against others, in the absence of  specific words? The answer, in our view, should be in the negative.  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.  It may be a joint trial along with some other accused; but, we cannot  stretch the language of the section so as to bring the confession of the co- accused within the fold of admissibility.  Such stretching of the language of   law is not  at all warranted especially  in the case of a law which visits a  person with  serious penal consequences (vide the observations of  Ahmadi, J  (as he  then was) in Niranjan Singh vs. Jitendra [(1990) 4 SCC 76] at  page 86, which were cited with approval in Kartar Singh’s case).  We would  expect a more explicit and transparent wording to be employed in the section  to rope in the confession of the co-accused within the net of admissibility on  par with the confession of the maker.  An evidentiary rule of such importance  and grave consequence to the accused could not have been conveyed in a

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deficient language.  It seems to us that a conscious departure was made by  the framers of POTA on a consideration of the pros and cons, by dropping the  words "co-accused" etc.. These specific words consciously added to Section  15(1) by 1993 amendment of TADA so as to cover the confessions of co- accused would not have escaped the notice of Parliament when POTA was  enacted.  Apparently, the Parliament in its wisdom would have thought that  the law relating to confession of co-accused under the ordinary law of  evidence, should be allowed to have its sway, taking clue from the  observations in Kartar Singh’s case at paragraph 255.  The confession  recorded by the police officer was, therefore, allowed to be used against the  maker of the confession without going further and transposing the legal  position that obtained under TADA. We cannot countenance the contention  that the words ’co-accused’ etc. were added in Section 15(1) of TADA, ex  majore cautela.                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).  As a corollary, it follows that the confessions of the 1st  and 2nd accused in this case recorded by the police officer under Section 32(1),  are of no avail against the co-accused or against each other.  We also agree  with the High Court that such confessions cannot be taken into consideration by  the Court under Section 30 of the Indian Evidence Act.  The reason is that the  confession made to a police officer or the confession made while a person is in  police custody, cannot be proved against such person, not to speak of the co- accused, in view of the mandate of Sections 25 and 26 of the Evidence Act.  If  there is a confession which qualifies for proof in accordance with the provisions  of Evidence Act, then of course, the said confession could be considered against  the co-accused facing trial under POTA. But, that is not the case here. For these reasons, the contention of the learned senior counsel for the  State that even if the confession of co-accused is not covered by Section 32(1),  it can still be taken into account by the Court under Section 30 for the limited  purpose of corroborating  or  lending assurance to the other evidence on record  cannot be accepted.  Learned senior counsel appearing for the State submits that there is no  conflict between Section 32 of POTA and Section 30 of the Evidence Act and  therefore the confession recorded under Section 32(1) of POTA can be taken  into consideration against the co-accused, at least to corroborate the other  evidence on record or to lend assurance thereto.  There is no difficulty in  accepting the contention that Section 30 of the Evidence Act can also play its  part in a case of trial under POTA, especially when the other offences under the  IPC are also the subject matter of trial. But a confession to the police officer by  a person in police custody is not within the realm of Section 30 of the Evidence  Act and therefore such a confession cannot be used against the co-accused even  under Section 30 of the Evidence Act.  While on the subject of confession made to a police officer under sub- section (1) of Section 32 of POTA, it would be apposite to refer in brief to the  decision of this Court in Kartar Singh v. State of Punjab [1994 (3) SCC  569].  The constitutional validity of the provisions of TADA Act came up for  consideration before the Constitution Bench. Section 15(1) of TADA Act was the  main target of attack.  The majority of Judges, with Ratnavel Pandian, J, leading  them, upheld the provisions of the Act including Section 15(1). There was a  weighty dissent by two learned Judges (K. Ramaswamy, J. and R.M. Sahai, J.)  as regards the  validity of Section 15(1).  The constitutional issue of the vires of  the impugned provisions of TADA, including Section 15(1), was examined from  the perspective of Articles 14 and 21 of the Constitution, that is to say, from the  standpoint of classification of offenders and justness and fairness of the  procedural provisions.  The three learned Judges did not find Section 15(1)  obnoxious to Article 14 or Article 21, though they took judicial notice of the  inhuman treatment often meted out by overzealous police officers and the  archaic, third degree methods adopted by them during the investigation of the  cases.  In upholding the validity, the Court took into account the legal  competence of the legislature to make a law prescribing a different mode of  proof, the meaningful purpose and object of the legislation, the gravity and  consequences of terrorism and the reluctance of the public in coming forward to  give evidence.  How far these considerations are relevant in providing for the  reception in evidence of the confessional statement recorded by a police officer

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has not been elaborated.  Apparent hesitation of the learned Judges in  upholding the most criticized provision, namely Section 15(1) of TADA, is  reflected in the set of guidelines set out by their Lordships at paragraph 263 to  ensure as far as possible that the confession obtained by the police officer is not  tainted with any vice and to impart a process of fairness into the exercise of  recording the confession. The Central Government was bidden to take note of  the guidelines and incorporate necessary amendments to the Act.  These  guidelines, by and large, have become part of Section 32 of POTA to which we  have already referred.  There was also an exhortation at paragraph 254 to the  high-ranking police officers empowered to record the confession that there  should be no breach of the accepted norms of recording the confession which  should reflect only a true and voluntary statement and there should be no room  for hyper criticism that the authority has obtained an invented confession.  Another interesting part of the discussion is the manner in which the Court gave  its response to the critical comments made by the counsel as to the  reprehensible methods adopted to extract the confession. The learned Judges  said with reference to this comment: "if it is shown to the Court that a  confession was extorted by illegal means such as inducement, threat or  promise, the confession thus obtained would be irrelevant and cannot be used in  a criminal proceeding against the maker."  The Court thus merely emphasized  the obvious and added a remark that the Court on several occasions awarded  exemplary compensation to the victim at the hands of the police officials. The  Court took the precaution of clarifying that the police officer investigating the  case under TADA Act can get the confession or statement of the accused  recorded under Section 164 Cr.P.C. by a Magistrate. The Constitution Bench Judgement 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.  It is  perhaps too late in the day to seek reconsideration of the view taken by the  majority of the Judges in the Constitution Bench.  But as we see Section 32, a  formidable doubt lingers in our minds despite the pronouncement in Kartar  Singh’s case (supra). That pertains to the rationale and reason behind the  drastic provision, making the confession to police officer admissible in evidence  in a trial for POTA offences.  Many questions do arise and we are unable to find  satisfactory or even plausible answers to them. If a person volunteers to make a  confession, why should he be not produced before the Judicial Magistrate at the  earliest and have the confession recorded by a Magistrate?  The Magistrate  could be reached within the same time within which the empowered police  officer could be approached.  The doubt becomes more puzzling when we notice  that in practical terms, a greater degree of credibility is attached to a confession  made before the judicial officer.  Then, why should not the Investigating Officer  adopt the straightforward course of having resort to the ordinary and age-old  law?  If there is  any specific advantage of conferring power on a police officer  to record the confession receivable in evidence, if the intendment and  desideratum of the provision indisputably remains to be to ensure an  atmosphere free from threats and psychological pressures? Why the circuitous  provision of having confession recorded by the police officer of the rank of S.P.  (even if he be the immediate superior of the I.O. who oversees the  investigation) and then requiring the production of the accused before the Chief  Metropolitan or Judicial Magistrate within 48 hours?  We can understand if the  accused is in a remote area with no easy means of communications and the  Magistrate is not easily accessible. Otherwise, is there real expediency or good  reason for allowing an option to the I.O. to have the confession recorded either  by the superior police officer or a Judicial Magistrate? We do not think that the  comparative ease with which the confession could be extracted from the  accused could be pleaded as justification. If it is so, should the end justify the  means?  Should the police officer be better trusted than a Magistrate?  Does the  magnitude and severity of the offence justify the entrustment of the job of  recording confession to a police officer?  Does it imply that it is easier to make  an accused confess the guilt before a police officer so that it could pave the way  for conviction in a serious offence?  We find no direct answer to these questions  either in Kartar Singh’s case (supra) or the latest case of People’s Union for  Civil Liberties vs. Union of India [2004 (9) SCC 580]. The quality of a nation’s civilization can be largely measured by the  methods it uses in the enforcement of its criminal law, as said by the eminent

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American jurist Schaefer. We may recall as well the apt remarks of Krishna Iyer,  J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC 424]: "The first obligation of the criminal justice system is to secure  justice by seeking and substantiating truth through proof. Of  course, the means must be as good as the ends and the dignity of  the individual and the freedom of the human person cannot be  sacrificed by resort to improper means, however worthy the ends.  Therefore, ’third degree’ has to be outlawed and indeed has been.  We have to draw up clear lines between the whirlpool and the rock  where the safety of society and the worth of the human person  may co-exist in peace."           In People’s Union for Civil Liberties case, a two Judge Bench of this  Court upheld the constitutional validity of Section 32 following the  pronouncement in Kartar Singh’s case. The learned Judges particularly noted  the ’additional safeguards’ envisaged by sub-Sections (4) and (5) of Section 32.  The court referred to the contention that there was really no need to empower  the police officer to record the confession since the accused has to be in any  case produced before the Magistrate and in that case the Magistrate himself  could record the confession.  This argument was not dealt with by their  Lordships.  However, we refrain from saying anything contrary to the legal  position settled by Kartar Singh and People’s Union for Civil Liberties. We  do no more than expressing certain doubts and let the matter rest there. It has been pointed out to us that even in advanced countries like U.K.  and U.S.A., where individual liberty is given primacy, there is no legal taboo  against the reception of confessional statement made to police in evidence.  We do not think that it is apt to compare the position obtaining in those  countries to that in India. The ground realities cannot be ignored. It is an  undeniable fact that the police in our country still resort to crude methods of  investigation, especially in mofussil and rural areas and they suffer many  handicaps, such as lack of adequate personnel, training, equipment and  professional independence.  These features, by and large, are not so rampant  in those advanced countries.  Considered from the standpoint of scientific  investigation, intensity of training and measure of objectivity, the standards  and approaches of police personnel are much different in those countries. The  evils which the framers of the Indian Evidence Act had in mind to exclude  confessions to the police, are still prevalent though not in the same degree.  After independence, no doubt, some positive steps have been taken to  improve the working pattern, utility and image of the police force, but, much  desires to be achieved in this direction. Complaints of violation of human rights  by resorting to dubious methods of investigation, politicization of the police  establishment and victimization of the straightforward and honest officers are  some of the criticisms that are being heard day in and day out. Even many  amongst the public tacitly endorse the use of violence by police against the  criminals.  In this scenario, we have serious doubts whether it would be safe to  concede the power of recording confessions to the police officers to be used in  evidence against the accused making the confession and the co-accused. The Law Commission of India in its 185th Report on review of the Indian  Evidence Act has expressed strong views disfavouring the admission of  confessions made to Police Officers. The Commission commented that the  basis for introducing Sections 25 and 26 in the Evidence Act in 1872 holds  good even today. The Commission observed\027"we are compelled to say that  confessions made easy, cannot replace the need for scientific and professional  investigation". In England, even though the confessions to the police can be received in  evidence the voluntariness of the confessions are tested by adopting stringent  standards.  Section 76 of the Police and Criminal Evidence Act, 1984, deals  with confession in England.  Sub-section (2) of Section 76 is important:  "(2) If, in any proceedings where the prosecution proposes to give  in evidence a confession made by an accused person, it is  represented to the court that the confession was or may have  been obtained- (a)     by oppression of the person who made it; or  (b)     in consequence of anything said or done which was likely, in  the circumstances existing at the time, to render unreliable

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any confession which might be made by him in consequence  thereof, the court shall not allow the confession to be given in evidence  against him except in so far as the prosecution proves to the court  beyond reasonable doubt that the confession (notwithstanding  that it may be true) was not obtained as aforesaid."

       Thus the prosecution has to prove beyond reasonable doubt that the  confession was made voluntarily and was reliable.           The Court of Appeal decision in Regina vs. Middleton (1975 All E.R.  191) shows that whenever the admissibility of a confession is challenged "a  trial within a trial" is conducted to test the voluntariness of such confession at  the earliest. In England, in the light of the Human Rights Act of 1988, a fresh  look is being taken into the existing provisions of the Police and Criminal  Evidence Act and other allied laws including the Law of Confessions.         In United States, according to the decisions of the Supreme Court viz.,  Miranda Vs. Arizona [384 US 436]; Escobedo Vs. Linnaeus [378 US  478], the prosecution cannot make use of the statements stemming from  custodial interrogation unless it demonstrates the use of procedural safeguards  to secure the right against self-incrimination and these safeguards include a  right to counsel during such interrogation and warnings to the suspect/accused  of his right to counsel and to remain silent. In Miranda case (decided in  1966), it was held that the right to have counsel present at the interrogation  was indispensable to the protection of the V Amendment privilege against self- incrimination and to ensure that the right to choose between silence and  speech remains unfettered throughout the interrogation process. However, this  rule is subject to the conscious waiver of right after the individual was warned  of his right. 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. There is one argument of Mr. Sushil Kumar appearing for the accused  Afzal which needs to be adverted to. His contention is that the word ’evidence’  is not used either under Section 32(1) or Section 32(2) of POTA unlike Section  15(2) of TADA which requires the Police Officer to warn the person making the  confession that it may be used as ’evidence’ against him. He therefore argues  that the only route through which the confession can be treated as evidence  against the accused is by having recourse to Section 164 Cr.P.C. The  contention, in our view, is devoid of merit. The mere fact that the expression  ’admissible only’ is used without being followed by the words ’in evidence’,  does not, by any canon of construction, deprive the confession recorded under  Section 32 of POTA its evidentiary value; otherwise Section 32(1), more  especially the expression ’admissible’ contained therein will become ineffectual  and senseless. We cannot, therefore, accept this extreme contention. 11. Section 10 of Evidence Act The next question is whether the confession of the accused which cannot  be proved against a co-accused either under  Section 32(1) of POTA or under  Section 30 of the Evidence Act, would be relevant evidence against the co- accused involved in the conspiracy by reason of Section 10 of the Evidence  Act.  The section reads thus: "10. Things said or done by conspirator in reference to common  design.- Where there is reasonable ground to believe that two or  more persons have conspired together to commit an offence or an  actionable wrong, anything said, done or written by any one of  such persons in reference to their common intention, after the  time when such intention was first entertained by any one of  them, is a relevant fact as against each of the persons believed to  so conspiring, as  well for the purpose of proving the existence of  the conspiracy as for the purpose of showing that any such person  was a party to it."

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In Kehar Singh & ors. vs. State (Delhi Administration) [1988 (3)  SCC 609], Jagannatha Shetty, J.,  has analysed the section as follows: "From an analysis of the section, it will be seen that Section 10  will come into play only when the court is satisfied that there is  reasonable ground to believe that two or more persons have  conspired  together to commit an offence.  There should be, in  other words, a prima facie evidence that the person was a party to  the conspiracy before his acts can be used against his co- conspirator. Once such prima facie evidence exists, anything said,  done or written by one of the conspirators in reference to the  common intention, after the said intention was first entertained, is  relevant against the others.  It is relevant not only for the purpose  of proving the existence of conspiracy, but also for proving that  the other person was a party to it."

Section 10 of Evidence act is based on the principle of agency operating  between the parties to the conspiracy inter se and it is an exception to the rule  against hearsay testimony. If the conditions laid down therein are satisfied,  the act done or statement made by one is admissible against the co- conspirators (vide AIR 1965 SC 682). The learned senior counsel Mr. Gopal Subramanium submits that Section  10, which is an exception to Section 30 of the Evidence Act, can be availed of  by the prosecution to rely on the facts stated in the confessional statement of  the accused to prove the existence of conspiracy and the co-conspirator being  party to it.  He contends that there is more than prima facie evidence in this  case that there was a conspiracy to launch an attack on the Parliament  building and therefore, the first ingredient of the reasonable ground of belief is  satisfied.  The next and more controversial part of the submission is that the  statement of one of the conspirators who has made the confession throwing  light on the common intention of all the accused  can be used  in evidence  against the co-conspirators or the co-accused irrespective of the fact that such  statements were made after the conclusion of the conspiracy and after the  accused were arrested. As the law laid down by the Privy Council in Mirza  Akbar vs. King Emperor (AIR 1940 PC 176) on the interpretation of  Section 10 does not support the contention of the counsel for the State, the  learned counsel was critical of the dictum laid down in that case and equally  critical of the long line of authorities which accepted the ruling of the Privy  Council.  This is what Lord Wright said in Mirza Akbar’s case:  "This being the principle, their Lordships think the words of  Section 10 must be construed in accordance with it and are not  capable of being widely construed so as to include a statement  made by one conspirator in the absence of the other with  reference to past acts done in the actual course of carrying out the  conspiracy, after it has been completed.  The common intention is  in the past.  In their Lordships’ judgment, the words ’common  intention’ signify a common intention existing at the time when  the thing was said, done or written by one of them.  Things said,  done or written while the conspiracy was on foot are relevant as  evidence of the common intention, once reasonable ground has  been shown to believe in its existence.  But it would be a very  different matter to hold that any narrative or statement or  confession made to a third party after the common intention or  conspiracy was no longer operating and had ceased to exist is  admissible against the other party.  There is then no common  intention of the conspirators to which the statement can have  reference.  In their Lordships’ judgment Section 10 embodies this  principle.  That is the construction which has been rightly applied  to Section 10 in decisions in India. \005                    \005                    \005            \005

In these cases the distinction was rightly drawn between  communications between conspirators while the conspiracy was  going on with reference to the carrying out of conspiracy and  statements made, after arrest or after the conspiracy has ended,  by way of description of events then past."

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       In Sardul Singh Caveeshar vs. State of Bombay (1958 SCR 161), a  three-Judge Bench of this Court approvingly referred to the decision of the  Privy Council. However, the following observation made therein does not go  counter to the submission of Mr. Subramanium: "where the charge specified the period of conspiracy, evidence of  acts of co-conspirators outside the period is not receivable in  evidence".

But, the ultimate conclusion is not strictly in conformity with that remark. After  referring to this and the other decisions, Thomas, J. observed in State of  Gujarat vs. Mohammed Atik and ors. [1998 (4) SCC 351] thus: "Thus, the principle is no longer res integra that any statement  made by an accused after his arrest, whether as a confession or  otherwise, cannot fall within the ambit of Section 10 of the  Evidence Act."

       Referring to the decision in Mohammed Atik’s case (supra) and Sardul  Singh Caveeshar (supra), Arijit Pasayat, J., speaking for a three-Judge Bench  in Mohd. Khalid vs. State of West Bengal [2002 (7) SCC 334], stated the  legal position thus: "We cannot overlook that the basic principle which underlies  Section 10 of the Evidence Act is the theory of agency.  Every  conspirator is an agent of his associate in carrying out the object of  the conspiracy.  Section 10, which is an exception to the general  rule, while permitting the statement made by one conspirator to be  admissible as against another conspirator restricts it to the  statement made during the period when the agency subsisted.  Once it is shown that a person became snapped out of the  conspiracy, any statement made subsequent thereto cannot be  used as against the other conspirators under Section 10."

Ultimately, the test applied was whether any particular accused continued to  be the member of the conspiracy after his arrest.  Though the learned Judge  stated that "similar view was expressed by this Court in State vs. Nalini", we  find no such statement of law in Nalini’s case. However, this accidental slip  does not make any difference.  The law is thus well settled that the statements  made by the conspirators after they are arrested cannot be brought within the  ambit of Section 10 of the Evidence Act, because by that time the conspiracy  would have ended.  If so, the statement forming part of the confessional  statement made to the police officer under Section 32(1) of POTA cannot be  pressed into service by the prosecution against the other co-accused. Thus,  the endeavour to bring the confessional statement of co-accused into the  gamut of evidence through the route of Section 10 is frustrated by a series of  decisions, starting from Mirza Akbar’s case (1940). Learned senior counsel Mr. Gopal Subramanium argued that the view  taken by the Privy Council runs counter to the language of Section 10, and  moreover, if that interpretation is to be adopted, there would hardly be any  evidence which could be admitted under section 10, the reason being that the  statements would necessarily be made by the witnesses after the termination  of conspiracy. The correct interpretation, according to the learned senior  counsel is, whether the statements made by the conspirators testifying to the  common plan, whether confessional or not, relate to the period of conspiracy  or to the period post-termination.  The relevance of such statements under  Section 10 cannot be whittled down with reference to the point of time when  the statement was made.  The leaned senior counsel, therefore, submits that  the exclusion of post-arrest statements of the conspirators, is not warranted  by the language employed in the section and it makes Section 10 nugatory.   Though, in our view, the Section can still play its role, we find some force in  this contention. But, it is not open to us to upset the view reiterated in a long  line of decisions. The learned counsel Mr. Gopal Subramanium has also endeavoured to  invoke precedential support for his argument. He referred to Bhagwan  Swarup vs. State of Maharashtra (AIR 1965 SC 682) (known as the 2nd  Caveeshar case) in which Subba Rao, J., speaking for a three-Judge Bench

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analysed the ingredients of Section 10 as follows:- "(1) There shall be a prima facie evidence affording a reasonable  ground for a Court to believe that two or more persons are  members of a conspiracy, (2) if the said condition is fulfilled,  anything said, done or written by any one of them in reference to  their common intention will be evidence against the other, (3)  anything said, done or written by him should have been said,   done or written by him after the intention was formed by any of  them; (4) it would also be relevant for the said purpose against  another who entered the conspiracy whether it was said, done or  written before he entered the conspiracy or after he left it; and (5)  it can only be used against a co-conspirator and not in his favour."

       The limitation inferred by the Privy Council that the acts or statements of  the conspirator should have been made when the conspiracy was afoot was  not imported in to the interpretation of the section. On the other hand, the  proposition No.4 might indicate that even the statement made and acts done  after a person left the conspiracy, could be proved against others.  The Privy  Council decision in Mirza Akbar’s case was not referred to. The issue as  raised now was not discussed.  However, the 1st Caveeshar case (AIR 1957  SC 747) in which the Privy Council’s decision was cited, was adverted to.  In  the 1st Caveeshar’s case also decided by a three Judge Bench (supra), the  ratio of the Privy Council decision in Mirza Akabar’s case was approved and  applied. The learned counsel then referred to the case of Ammini & ors. vs.  State of Kerala [1998 (2) SCC 301], wherein this Court referred to Section  10 of the Evidence Act and observed thus: "The High Court held as there was reasonable ground to believe  that Ammini and other accused had conspired together and,  therefore, the confession made by A-1 could be used against other  accused also."           

       There was no reference to the earlier cases which were binding on the  Court. The view of the High Court was merely endorsed.  The learned senior  counsel Mr. Gopal Subramanium then submitted that in Nalini’s case this  Court admitted the confessional statement made by one of the accused after  his arrest under section 10 of the Evidence Act.  But we do not find anything in  that judgment to support this statement. Wadhwa, J on whose judgment  reliance is placed did not say anything contrary to what was laid down in  Mirza Akbar’s case.  After referring to Mirza Akbar’s case, Wadhwa, J.  adverted to the contention  that Section 10 becomes inapplicable  once the  conspirator is nabbed.  The comment of the learned Judge was;  "That may be so in a given case but is not of universal  application.  If the object of   conspiracy has not been  achieved and there is still agreement to do the illegal act,  the offence of criminal conspiracy is there and Section 10 of  the Evidence Act applies". (vide para 579 of SCC)

               Then follows the crucial finding that the prosecution in the present case  has not led any evidence to show that any particular accused continued  to be  a member of the conspiracy after he was arrested.  It shows that the ultimate  conclusion accords with the view expressed in  Mirza Akbar.   At paragraph 581, there is further discussion on the scope of   Section 10.   One observation made by the learned Judge in that para needs to  be clarified.  The learned Judge observed thus:         "When two or more persons enter into a  conspiracy any act done  by any one  of them  pursuant to the agreement is, in   contemplation of law, the act of each of them and they are jointly   responsible therefor. This means that everything said, written or  done by any  of the conspirators in execution of or in  reference to  their common intention  is deemed to have been said, done or  written by each of them".                             (emphasis supplied)           We do not find any such deeming provision in Section 10.  No doubt,

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Section 10 rests on the principle of agency.   But, it does not in terms treat  the statements made and acts done by one conspirator as the statements or  acts of all.  Section 10 only lays down a rule of relevancy. It says that  anything done or said by one of the conspirators in reference to the common  intention is a relevant fact as against each of the conspirators  to prove two  things: (i) existence of the conspiracy and (ii)  that they were parties to the  conspiracy. As pointed out by the Privy Council in Mirza Akbar’s case, the  thing done, written or spoken in the course of carrying out the conspiracy  "was receivable as a step in the proof of the conspiracy".  This dictum was  approvingly referred to in the 1st Caveeshar case (AIR 1957 SC 747).         The learned senior counsel then referred to the decision of this Court in  Tribhuwan vs. State of Maharashtra [1972 (3) SCC 511], in which the  accused examined himself as a witness and his evidence was admitted under  Section 10 of the Evidence Act, mainly on the ground that his deposition could  be subjected to cross-examination.  So also in the case of K. Hashim vs.  State of Tamil Nadu, the evidence of co-accused who subsequently became  approver, was admitted under Section 10.  These two cases rest on a different  principle and cannot be said to have differed with the view taken in Mirza  Akbar’s case. However, there are two decisions of this Court rendered by two Judge  Benches, which have taken the view that the facts stated in the confessional  statement of one of the accused can be used against the other accused.  The  first one is Bhagwandas Keshwani & anr. vs. State of Rajasthan [1974  (4) SCC 611] decided by a two-Judge Bench (M.H. Beg and Y.V.  Chandrachud, JJ), in which Beg, J. observed thus: "It seems to us that the extreme argument that nothing said or  done by Vishnu Kumar could be taken into account in judging the  guilt of Keshwani when there is a charge for conspiracy under  Section 120B IPC overlooks the provisions of Section 10 of the  Evidence Act\005. At any rate, proof of the fact, even from  admissions of Vishnu Kumar, that false and fictitious cash memos  were prepared due to an agreement between the two accused,  could be used against each accused."

       None of the previous decisions were referred to by their Lordships.  The  other case is that of State of Maharashtra vs. Damu [2000 (6) SCC 269]  which was also decided by a two Judge Bench. The learned Judges after  analyzing the ingredients of Section 10, held thus: "In this case there can be no doubt, relying on Ex.88 that there  are reasonable grounds to believe that all the four accused have  conspired together to commit the offences of abduction and  murders of the children involved in this case.  So what these  accused have spoken to each other in reference to their common  intention as could be gathered from Ex.88 can be regarded as  relevant facts falling within the purview of Section 10 of the  Evidence Act. It is not necessary that a witness should have  deposed to the fact so transpired between the conspirators.  A  dialogue between them could be proved through any other legally  permitted mode.  When Ex.88 is legally proved and found  admissible in evidence, the same can be used to ascertain what  was said, done or written between the conspirators.  Al the things  reported in that confession referring to what A-1 Damu Gopinath  and A-3 Mukunda Thorat have said and done in reference to the  common intention of the conspirators are thus usable under  Section 10 of the Evidence Act as against those two accused as  well, in the same manner in which they are usable against A-4  Damu Joshi himself."

       Thus, the confessional statement (Ext.88) made by one of the parties to  the conspiracy was made use of against the other parties/accused.  It is  interesting to note that the decision in State of Gujarat vs. Mohammed Atik  (supra) rendered by one of the learned Judges, was noticed but the crucial  part of the observation therein ruling out the applicability of Section 10 was  not adverted to.  The 2nd Caveeshar case (AIR 1965 SC 682) was also  noticed.  However much we are convinced of the arguments advanced by the

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learned senior counsel for the State, we are unable to give effect to the law  laid down in these two cases which runs counter to the larger Bench decisions  noticed supra, especially when the previous decisions bearing on the point  were not discussed. No doubt the judgment in 2nd Caveeshar case was of  three learned Judges but the 4th proposition laid down therein is not so  categorical as to convey the idea that even the confessional statement  recorded after the arrest, could be used against the co-conspirators.         The case of Queen Vs. Blake decided in 1844 [115 ER 49] is  illustrative of the parameters of the common law rule similar to Section 10 of  the Indian Evidence Act. The Privy Council in the case of R Vs. Blake [AIR  1940 PC 176] referred to that case and observed thus: "\005The leading case of (1844) 6 QB 126 : 115 ER 49 (E) illustrates  the two aspects of it, because that authority shows both what is  admissible and what is inadmissible. What, in that case, was held  to be admissible against the conspirator was the evidence of  entries made by his fellow conspirator contained in various  documents actually used for carrying out the fraud. But a  document not created in the course of carrying out the  transaction, but made by one of the conspirators after the fraud  was completed, was held to be inadmissible against the other\005\005It  had nothing to do with carrying the conspiracy into effect."            In the light of the foregoing discussion, we have no option but to reject  the contention of Mr. Gopal Subramanium on the interpretation of Section 10,  though not without hesitation. However, in view of the fact that confessional  statement is not being relied on, the question of applicability of Section 10  fades into insignificance. 12. Conspiracy

       As conspiracy is the primary charge against the accused, we shall now  advert to the law of conspiracy \026 its definition, essential features and proof.   Section 120-A of IPC defines criminal conspiracy.  It says:  "when two or more  persons  agree  to do or cause  to be done  (i) an illegal act or (ii) an act which  is not illegal by illegal means, such an agreement is designated  a criminal  conspiracy.  Section 120-B prescribes the punishment to be imposed on a  party to a  criminal conspiracy.  As pointed out by Subba Rao, J in Major E.G.  Barsay Vs. State of Bombay (AIR 1961 SC 1762):   "\005the gist of the offence is an agreement  to break the law. The  parties to such an agreement will be guilty of criminal conspiracy,  though the illegal act agreed to be done has not been done. So  too, it is not an ingredient of the offence that all the parties should  agree to do a single illegal act. It may comprise the commission of  a number of acts".

Under section 43 of the IPC, an act would be illegal if it is an offence or if it is  prohibited by law. Section 120-A and 120-B were brought on the statute book  by way of amendment to IPC in 1913.  The Statement of Objects and Reasons  to the amending Act reveals that the underlying purpose was to make a mere  agreement to do an illegal act or an act which is not illegal by illegal means  punishable under law.  This definition is almost similar to the definition of  conspiracy, which we find in Halsbury’s Laws of England.  The definition given  therein is: "Conspiracy consists in the agreement of two or more persons to  do an unlawful act, or to do a lawful act by unlawful means.  It is  an indictable offence at common law. The essence of the offence  of conspiracy is the fact of combination by agreement. The  agreement may be express or implied or in part express and in  part implied\005.. and the offence continues to be committed so long  as the combination persists, that is until the conspiratorial  agreement is terminated by completion of its performance or by  abandonment or frustration or however it may be".  

In America, the concept of criminal conspiracy is no different.  In  American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of  conspiracy is given:

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"A conspiracy is said to be an agreement between two or more  persons to accomplish together a criminal or unlawful act or to  achieve by criminal or unlawful means an act not in itself criminal  or unlawful ... The unlawful agreement and not its  accomplishment is the gist or essence of the crime of conspiracy."          Earlier to the introduction  of Section 120-A and B, conspiracy per se   was not an offence under the Indian Penal Code except  in respect of the  offence mentioned in Section 121-A. However, abetment by conspiracy was  and still remains to be an ingredient of abetment under clause secondly of  Section 107 of IPC.  The punishment therefor is provided under various  sections viz. Section 108 to 117. Whereas under Section 120A, the essence of  the offence of criminal conspiracy is a bare agreement to commit the offence,  the abetment under Section 107 requires the commission of some act or illegal  omission pursuant to the conspiracy. A charge under Section 107/109 should  therefore be in combination with a substantive offence, whereas the charge  under Section 120-A/120-B could be an independent charge. In the Objects and Reasons to the Amendment Bill, it was explicitly  stated that the new provisions (120-A & B) were "designed to assimilate the  provisions of the Indian Penal Code to those of the English Law \005\005\005\005\005."   Thus, Sections 120-A & B made conspiracy a substantive offence and rendered  the mere agreement to commit an offence punishable.  Even if an overt act  does not take place pursuant to the illegal agreement, the offence of  conspiracy would still be attracted. The passages from Russell on Crimes, the  House of Lords decision in Quinn vs. Leathem (1901 AC 495), and the  address of Willes, J to the Jury in Mulcahy Vs. Queen (1868 3 HL 306) are  often quoted in the decisions of this Court.  The passage in Russell on Crimes  referred to by Jagannatha Shetty, J in Kehar Singh’s case [1988 (3) SCC at  page 731] is quite apposite: "The gist of the offence of conspiracy then lies, not in doing the  act, or effecting the purpose for which the conspiracy is formed,  nor in attempting to do them, nor in inciting others to do them,  but in the forming of the scheme or agreement between the  parties.  Agreement is essential.  Mere knowledge, or even  discussion, of the plan is not, per se enough"

This passage brings out the legal position succinctly. In Nalini’s case, S.S.M. Quadri, J, pointed out  that  the meeting of   minds of two or more persons for doing an illegal act  or an act by illegal  means is a sine qua non  of the criminal conspiracy. Judge L. Hand, in Van  Riper vs. United States (13 F 2d. 961) said of conspiracy: "When men  enter into an agreement for an unlawful end, they become ad hoc agents for  one another and have made a partnership in crime." In Yashpal Mittal vs. State of Punjab [1977 (4) SCC 540],  Goswami, J, speaking for a three-Judge Bench analysed the legal position  relating to criminal conspiracy. At pages 610-611, the learned Judge observed  that "the very agreement, the concert or league is the ingredient of the  offence." and that "it is not necessary that all the conspirators must know each  and every detail of the conspiracy".  It was then observed that "there must be  unity of object or purpose but there may be plurality of means, sometimes  even unknown to one another, amongst the conspirators."  Dr. Sri Hari Singh Gour in his well known ’Commentary on Penal Law of  India’, (Vol.2, 11th Edn. page 1138) summed up the legal position in the  following words:      "In order to constitute a single general conspiracy there must be a  common design.  Each conspirator plays his separate part in one  integrated and united effort to achieve the common purpose. Each  one is aware that he has a part to play in a general conspiracy  though he may not know all its secrets or the means by which the  common purpose is to be accomplished. The evil scheme may be  promoted by a few, some may drop out and some may join at a  later stage, but the conspiracy continues until it is broken up. The  conspiracy may develop in successive stages.  There may be  general plan to accomplish the common design by such means as  may from time to time be found expedient."

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       In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17],  it was reiterated that every one of the conspirators need not take active part in  the commission of each and every one of the conspiratorial acts.         In the case of State Vs. Nalini [1999 (5) SCC 253], S.S.M. Quadri, J,  after a survey of case law made the following pertinent observations: (at  paragraph 662) "In reaching the stage of meeting of minds, two or more persons  share information about doing an illegal act or a legal act by illegal  means.  This is the first stage where each is said to have knowledge  of a plan for committing an illegal act or a legal act by illegal  means.  Among those sharing the information some or all may form  an intention to  do an illegal act or a legal act by illegal means.   Those who do form the requisite intention would be parties to the  agreement and would be conspirators but those who drop out   cannot be roped in as collaborators on the basis of mere knowledge   unless they commit acts or omissions from which a guilty common  intention can be inferred.  It is not necessary that all the  conspirators should participate from the inception to the end of the  conspiracy; some may join the conspiracy after the time when such  intention was first entertained by any one of them and some others  may quit from the conspiracy.  All of them cannot but be treated as  conspirators.  Where in pursuance of the agreement the  conspirators commit offences individually or adopt illegal means to  do a legal act which has a nexus to the object of conspiracy, all of  them will be liable for such offences even if some of them have not  actively participated in the commission of those offences.          There is exhaustive reference to various cases by  Arijit Pasayat, J, in  Mohd. Khalid Vs. State of W.B. [2002 (7) SCC 334].  In Mohammed  Usman Vs. State of Maharashatra [1981 (2) SCC 443] it was observed  that the agreement amongst the conspirators can be inferred by necessary  implication. There is one particular observation made by Jagannadha Shetty in  Kehar Singh’s (supra) case which needs to be explained.  The learned Judge  observed: "It is, however, essential that the offence of conspiracy requires  some kind of physical manifestation of agreement.  The express  agreement, however, need not be proved nor is it necessary to  prove the actual words of communication.  The evidence as to  transmission of thoughts sharing the unlawful design may be  sufficient".

       The expression ’physical manifestation’ seems to be the phraseology  used in the Article referred to by the learned Judge. However, the said  expression shall not be equated  to ’overt act’ which is a different concept. As  rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the  phrase has reference to the manifestation of the agreement itself, such as by  way of meetings and communications.         Mostly, the conspiracies are proved by the circumstantial evidence, as  the conspiracy is seldom an open affair. Usually both the existence of the  conspiracy and its objects have to be inferred from the circumstances and the  conduct of the accused. (Per Wadhwa, J. in Nalini’s case (supra) at page  516). The well known rule governing circumstantial evidence is that each and  every incriminating circumstance must be clearly established by reliable  evidence and "the circumstances proved must form a chain of events from  which the only irresistible conclusion about the guilt of the accused can be  safely drawn and no other hypothesis against the guilt is possible." G.N. Ray,  J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this  Court should not allow the suspicion to take the place of legal proof.           As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC  665], " in most cases it will be difficult to get direct evidence of the  agreement, but a conspiracy can be inferred even from circumstances giving  rise to a conclusive or irresistible inference of an agreement between two or  more persons to commit an offence."  In this context, the observations in the

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case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR  1971 SC 885) are worth nothing: "\005in most cases proof of conspiracy is largely inferential though  the inference must be founded on solid facts. Surrounding  circumstances and antecedent and subsequent conduct, among  other factors, constitute relevant material."

A few bits here and a few bits there on which the prosecution relies cannot be  held to be adequate for connecting the accused in the offence of criminal  conspiracy. The circumstances before, during and after the occurrence can be  proved to decide about the complicity of the accused. [vide Esher Singh vs.  State of A.P., 2004 (11) SCC 585].          Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that  the evidence from which a jury may infer a criminal conspiracy is almost  invariably to be found in the conduct of the parties.  In (AIR 1945 PC 140),  the Privy Council warned that in a joint trial care must be taken to separate  the admissible evidence against each accused and the judicial mind should not  be allowed to be influenced by evidence admissible only against others. "A co- defendant in a conspiracy trial", observed Jackson, J, "occupies an uneasy  seat" and "it is difficult for the individual to make his own case stand on its  own merits in the minds of jurors who are ready to believe that birds of a  feather are flocked together."  [vide Alvin Krumlewitch vs. United States  of America, (93 L.Ed. 790).  In Nalini’s case, Wadhwa, J pointed out, at  page 517 of the SCC, the need to guard against prejudice being caused to the  accused on account of the joint trial with other conspirators. The learned Judge  observed that "there is always difficulty in tracing the precise contribution of  each member of the conspiracy but then there has to be cogent and  convincing evidence against each one of the accused charged with the offence  of conspiracy". The pertinent observation of Judge Hand in U.S. vs. Falcone  (109 F. 2d,579) was referred to: "This distinction is important today when  many prosecutors seek to sweep within the dragnet of conspiracy all those  who have been associated in any degree  whatever with the main offenders."   At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a  conspiracy requires more than a merely passive attitude towards an existing  conspiracy.  The learned Judge then set out the legal position regarding the  criminal liability of the persons accused of the conspiracy as follows:  "One who commits an overt act with knowledge of the conspiracy is  guilty.  And one who tacitly consents to the object of a conspiracy  and goes along with the other conspirators, actually standing by  while the others put the conspiracy into effect, is guilty though he  intends to take no active part in the crime."                    One more principle which deserves notice is that cumulative effect of the  proved circumstances should be taken into account in determining the guilt of  the accused rather than adopting an isolated approach to each of the  circumstances. Of course, each one of the circumstances should be proved  beyond reasonable doubt.  Lastly, in regard to the appreciation of evidence  relating to conspiracy, the Court must take care to see that the acts or  conduct of the parties must be conscious and clear enough to infer their  concurrence as to the common design and its execution. K.J. Shetty, J,  pointed out in Kehar Singh’s case that "the innocuous, innocent or  inadvertent events and incidents should not enter the judicial verdict."           Before we close the discussion on the topic of conspiracy in general, we  must note the argument of the learned senior counsel for the State Mr. Gopal  Subramanium who in his endeavour to invoke the theory of agency in all its  dimensions so as to make each of the conspirators constructively liable for the  offences actually committed by others pursuant to the conspiracy, relied on  the dictum of Coleridge, J. in Regina vs. Murphy (173 ER 502), which will  be referred to later on. The learned senior counsel submits that where overt  acts have been committed, all conspirators will have to be punished equally  for the substantive offence irrespective of non-participation of some of them in  such overt acts.  The observations made by Wadhwa, J in Nalini at paragraph  583 and by Mohapatra, J, in Firozuddin Basheeruddin vs. State of Kerala  [2001 (7) SCC 596], are pressed into service to buttress his argument that  all the conspirators would be liable for all the offences committed pursuant to

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the conspiracy on the basis of the principle of agency where the conspiracy  results in overt acts constituting distinct offences.         We do not think that the theory of agency can be extended thus far, that  is to say, to find all the conspirators guilty of the actual offences committed in  execution of the common design even if such offences were ultimately  committed by some of them, without the participation of others.  We are of  the view that those who committed the offences pursuant to the conspiracy by  indulging in various overt acts will be individually liable for those offences in  addition to being liable for criminal conspiracy; but, the non-participant  conspirators cannot be found guilty of the offence or offences committed by  the other conspirators.  There is hardly any scope for the application of the  principle of agency in order to find the conspirators guilty of a substantive  offence not committed by them. Criminal offences and punishments therefor  are governed by statute.  The offender will be liable only if he comes within  the plain terms of the penal statute.  Criminal liability for an offence cannot be  fastened by way of analogy or by extension of a common law principle. We have to explain the decision in Ferojuddin’s case at length in view  of heavy reliance placed on it. The Court observed thus at para 25: "\005Thus, one who enters into a conspiratorial relationship is liable  for every reasonably foreseeable crime committed by every other  member of the conspiracy in furtherance of its objectives, whether  or not he knew of the crimes or aided in their commission\005"

In para 26, the discussion was on the point of admissibility of evidence i.e.  whether declaration by one conspirator made in furtherance of a conspiracy  and during its subsistence is admissible against each co-conspirator. In other  words, the question of applicability of the rule analogous to Section 10 of the  Evidence Act was the subject matter of discussion. The following passage from  Van Riper Vs. United States [13 F 2d 961 at page 967] was quoted. "Such declarations are admitted upon no doctrine of the law of  evidence, but of the substantive law of crime. When men enter into  an agreement for an unlawful end, they become ad hoc agents for  one another, and have made ’a partnership in crime’. What one  does pursuant to their common purpose, all do, and as declarations  may be such acts, they are competent against all."

Then, in the immediately following paragraph, this Court observed as follows: "Thus conspirators are liable on an agency theory for statements of  co-conspirators, just as they are for the overt acts and crimes  committed by their confreres."

The conclusion at paragraph 27 that the conspirators are liable for the overt  acts and crimes committed by their associates on the theory of agency is not  in conformity with the discussion "Regarding admissibility of evidence"\027which  is the opening phraseology of paragraph 26. It was made clear in the second  sentence of para 26 that contrary to the usual rule, any declaration by one  conspirator made in furtherance of a conspiracy and during its pendency is  admissible against each co-conspirator. Thus, the gist of Section 10 of the  Evidence Act is implicit in that observation. Nothing is stated in paragraph 26  to indicate that their Lordships were discussing the larger question of  culpability of all the conspirators for the criminal acts done by some of them  pursuant to the conspiracy. However, the view expressed in paragraph 27 that  on the theory of agency, the conspirators are liable for the statements and  overt acts of the co-conspirators is at variance with the tenor of discussion in  the earlier para. The apparent reason which influenced their Lordships seem to  be the observations of Judge Hand in the case of Van Riper Vs. United  States (supra). Those observations were in the context of the discussion on  the liability of the ’defendants’ for conspiracy to defraud.  The ratio of the  decision is evident from the  concluding  observation: "For this reason, all that  was done  before he entered may be used against him,  but obviously not  what was done after he left."  The joint liability for the overt acts  involved in  the actual crime did not come up for consideration.  That apart, the statement  of law  that "such declarations are admitted upon no doctrine of the law of  evidence, but of the substantive law of crime" does not hold good under  Indian law. The reason is that the declarations contemplated by Judge Hand

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are made admissible under Section 10 of the Indian Evidence Act but not  under the substantive law of crimes. Thus, the conclusion reached at  paragraph 27 overlooked the difference in legal position between what was  obtaining in USA in the year 1926 and the statutory rule of evidence contained  in the Indian Evidence Act. The proposition in the earlier para i.e. paragraph  25 (quoted supra) was too widely stated, probably influenced by the  observations in Van Riper’s case. In fact, in Ferojuddin’s  case, some  members of the group who conspired were convicted only under Section 120B  whereas the other members who accomplished the objective of conspiracy by  committing the planned offence were convicted for the substantive offence as  well as for the conspiracy.  Thus, the observations made therein  are no more  than obiter dicta. The very decision of Maj. E.G. Barsay referred to by their  Lordships make it clear that "for individual offences, all the conspirators may  not be liable though they are all guilty for the offence of conspiracy."    In Ajay Aggarwal vs. Union of India [1993 (3) SCC 609], while  discussing the question whether the conspiracy is a continuing offence, the  following pertinent observations were made by K. Ramaswamy, J, speaking for  the Bench at para 11:  "Conspiracy to commit a crime itself is punishable as a  substantive offence and every individual offence committed  pursuant to the conspiracy is separate and distinct offence to  which individual offenders are liable to punishment,  independent of the conspiracy."   

       Thus, a distinction was maintained between the conspiracy and the  offences committed pursuant to the conspiracy.  It is only in order to prove  the existence of conspiracy and the parties to the conspiracy, a rule of  evidence is enacted in Section 10  based on the  principle  of  agency. We may recall that Section 10 of the Evidence Act provides that  anything said, done or written by one of the conspirators in reference to the  common intention of all of them can be proved as a relevant fact as against  each of the conspirators, subject to the condition prescribed in the opening  part of the section.  Thus, the evidence which is in the nature of hearsay is  made admissible on the principle that there is mutual agency amongst the  conspirators.  It is in the context of Section 10 that the relevant observations  were made in the first Caveeshar case (AIR 1957 SC 747) and Nalini’s  case at page 517. In the former case, Jagannadhadas, J, after referring to the  passage in Roscoe’s Criminal Evidence (16th Edn.) that "an overt act  committed by any one of the conspirators is sufficient, on the general  principles of agency, to make it the act of all", observed that "the principle  underlying the reception of evidence under Section 10 of the Evidence Act of  the statements, acts and writings of one co-conspirator as against the other is  on the theory of agency".  It was not held in those cases that the same  principle of agency should be stretched further to make all the conspirators  liable for the offensive acts done pursuant to the conspiracy, irrespective of  their role and participation in the ultimate offensive acts.  Whether or not the  conspirators will be liable for substantive offences other than the conspiracy  and, if so, to what extent and what punishment has to be given for the  conspiracy and the other offences committed pursuant thereto, depend on the  specific scheme and provisions of the penal law.  The offence cannot be spelt  out by applying the principle of agency if the statute does not say so.  For  instance, in the case of Section 34 IPC, the constructive liability for the crime  is specifically fastened on each of those who participate in the crime in  furtherance of the common intention.  But Section 120B does not convey that  idea.           Learned senior counsel Mr. Gopal Subramanium placed reliance on the  summary of legal position as to proof of conspiracy by Coleridge, J in Regina  vs. Murphy [(1837) 173 E.R. 502] which is as under: "\005I am bound to tell you, that although the common design is the  root of the charge, it is not necessary to prove that these two  parties came together and actually agreed in terms to have this  common design and to pursue it by common means, and so to  carry it into execution.  This is not necessary, because in many  cases of the most clearly established conspiracies there are no  means of proving any such thing and neither law nor common

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sense requires that it should be proved.  If you find that these two  persons pursued by their acts the same object, often by the same  means, one performing one part of an act, so as to complete it,  with a view to the attainment of the object which they were  pursuing, you will be at liberty to draw the conclusion that they  have been engaged in a conspiracy to effect that object.  The  question you have to ask yourselves is, ’Had they this common  design, and did they pursue it by these common means \026 the  design being unlawful? .... "If you are satisfied that there was  concert between them, I am bound to say that being convinced of  the conspiracy, it is not necessary that you should find both Mr.  Murphy and Mr. Douglas doing each particular act, as after the  fact of conspiracy is already established in your minds, whatever  is either said or done by either of the defendants in pursuance of  the common design, is, both in law and in common sense, to be  considered as the acts of both."  

We do not find anything in Murphy’s case which supports the argument that  all the conspirators are equally liable for the offence committed by some of  them in execution of the common design.  The Court was only considering  whether the offence of conspiracy was made out and whether the acts or  declarations of co-conspirators can be relied on against others.  The crucial  question formulated is: "Had they this common design and did they pursue it  by these common means \026 the design being unlawful?  The learned Judge was  only explaining the ingredients of conspiracy and as to the principle on which  anything said or done by either of the conspirators in pursuit of common  design can be put against the other.  In other words, the principle analogous  to Section 10 was being highlighted.         The other decision relied upon by the learned counsel for the State is  Babu Lal vs. Emperor (AIR 1938 PC 130) at page 133.  What was held in  that case was that if several persons conspire to commit the offences and  commit overt acts pursuant to the conspiracy, such acts must be held to have  been committed in the course of the same transaction, which embraces the  conspiracy and the acts done under it.  The Privy Council was concerned with  the interpretation  of the expression "in the course of the same transaction"  occurring in Section 239(d) of the old Criminal Procedure Code which dealt  with joinder of charges. It does not support the argument based on the  agency theory.            One point raised by Shri Ram Jethmalani based on the decision of House  of Lords in R Vs. Anderson [1985 2 All ER Page 961] remains to be  considered. The principle laid down in that case is discernible from the  following summary in the head note. "Beyond the mere fact of agreement, the necessary mens rea  for proving that a person is guilty of conspiring to commit an  offence under Section 1(1) of the Criminal Law Act 1977 is  established if, and only if, it is shown that he intended when  he entered into the agreement to play some part in the  agreed course of conduct involving the commission of an  offence. Furthermore, a person may be guilty of conspiring  even though he secretly intended to participate in only part of  the course of conduct involving the commission of an  offence."

The learned counsel submits that in order to sustain a charge of  conspiracy under Section 120A, the same test could be usefully applied. That  means, there must be evidence to the effect that the accused who entered into  the agreement in the nature of conspiracy had intended to play and played  some part in the agreed course of conduct involving the commission of an  offence. But, if there is no evidence attributing any role to the accused in the  course of conduct involving the commission of offence, he or she cannot be  held guilty under Section 120A. However, as rightly pointed out by the learned  counsel for the State Mr. Gopal Subramanium, the provision dealt with by the  House of Lords, namely, Section 1(1) of the Criminal Law Act, 1977 is different  from the wording of Section 120A. It reads as follows: "Subject to the following provisions of this Part of this act, if

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a person agrees with any other person or persons that a  course of conduct shall be pursued which will necessarily  amount to or involve the commission of any offence or  offences by one or more of the parties to the agreement if  the agreement is carried out in accordance with their  intentions, he is guilty of conspiracy to commit the offence or  offences in question."

It may be noted that by the 1977 Act, the offence of conspiracy at  common law was abolished and a statutory definition of ’conspiracy to commit  the offence’ was enacted. The provision that was interpreted by the House of  Lords is not in pari materia with the provision in the Indian Penal Code.  However, one clarification is needed.  If there is proof to the effect that the  accused played a role, attended to certain things or took steps consistent with  the common design underlying the conspiracy, that will go a long way in  establishing the complicity of the accused, though it is not a legal requirement  that the conspirator should do any particular act beyond the agreement to  commit the offence. 13.     The interpretation of Section 27 of the Evidence Act has loomed large in  the course of arguments.  The controversy centered round two aspects:- (i)     Whether the discovery of fact referred to in Section 27 should be  confined only to the discovery of a material object and the  knowledge of the accused in relation thereto or the discovery could  be in respect of his mental state or knowledge in relation to certain  things \026 concrete or non-concrete.

(ii)    Whether it is necessary that the discovery of fact should be by the  person making the disclosure or directly at his instance?  The  subsequent event of discovery by police with the aid of information  furnished by the accused \026 whether can be put against him under  Section 27?

These issues have arisen especially in the context of the disclosure statement  (Ex. PW 66/13) of Gilani to the police.  According to the prosecution, the  information furnished by Gilani on certain aspects, for instance, that the  particular cell phones belonged to the other accused \026 Afzal and Shaukat,  that  the Christian colony room was arranged by Shaukat in order to accommodate  the slain terrorist Mohammad, that police uniforms and explosives ’were  arranged’ and that the names of the five deceased terrorists  were so and so  are relevant under Section 27 of the Evidence Act as they were confirmed to be  true by subsequent investigation and they reveal the awareness and  knowledge of Gilani in regard to all these facts, even though no material  objects were recovered directly at his instance.            The arguments of the learned counsel for the State run as follows:-         The expression "discovery of fact" should be read with the definition of  "fact" as contained in Section 3 of the  Evidence Act which defines the "fact" as  ’meaning and including anything, state of things or relation of things, capable  of being perceived by the senses and also includes any mental condition of  which any person is conscious’ (emphasis supplied).  Thus, the definition  comprehends both physical things as well as mental facts. Therefore, Section  27 can admit of discovery of a plain mental fact concerning the informant- accused. In that sense, Section 27 will apply whenever there is discovery (not  in the narrower sense of recovery of a material object) as long as the discovery  amounts to be confirmatory in character guaranteeing the truth of the  information given\027the only limitation being that the police officer should not  have had access to those facts earlier. The application of the Section is not contingent on the recovery of a  physical object. Section 27 embodies the doctrine of Confirmation by  subsequent events. The fact investigated and found by the police consequent  to the information disclosed by the accused amounts to confirmation of that  piece of information. Only that piece of information, which is distinctly  supported by confirmation, is rendered relevant and admissible U/S 27.         The physical object might have already been recovered, but the  investigating agency may not have any clue as to the "state of things" that  surrounded that physical object.  In such an event, if upon the disclosure made

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such state of things or facts within his knowledge in relation to a physical  object are discovered, then also, it can be said to be discovery of fact within  the meaning of Section 27.         The other aspect is that the pointing out of a material object by the  accused himself is not necessary in order to attribute the discovery to him.  A  person who makes a disclosure may himself lead the investigating officer to  the place where the object is concealed.  That is one clear instance of  discovery of fact.  But the scope of Section 27 is wider.  Even if the accused  does not point out the place where the material object is kept, the police, on  the basis of information furnished by him, may launch an investigation which  confirms the information given by accused.  Even in such a case, the  information furnished by the accused becomes admissible against him as per  Section 27 provided the correctness of information is confirmed by a  subsequent step in investigation. At the same time, facts discovered as a result  of investigation should be such as are directly relatable to the information.         Reliance is placed mainly on the decisions of this Court in Inayatullah  Vs. State of Maharashtra [(1976) 1 SCC 828] and State of Maharashtra  Vs. Damu [(2000) 6 SCC 269]. Referring to the land-mark decision of Privy  Council in Pulukuri Kotayya Vs. Emperor [AIR 1947 PC 67] the learned  counsel Mr. Gopal Subramanium tried to distinguish it and explain its real ratio.         The learned senior counsel appearing for the defence have contended  that the scope of Section 27 should not be unduly stretched by having resort to  the second part of the definition of ’fact’ in Section 3 of the Evidence Act.  According to Mr. Ram Jethmalani, it is too late in the day to contend that the  ’fact’ discovered within the meaning of Section 27 could either be the physical  object or the mental fact of which the accused giving the information is  conscious. The learned counsel submits that on a true understanding of the  ratio of the opinion of the Privy Council in Kotayya’s case, the word ’fact’ shall  be construed as being a combination of both the elements. The fact  discovered, it was ruled by the Privy Council, was the physical fact of hidden  spear and the mental fact was that the accused knew that he had so hidden it  at a particular place. Great reliance was placed on the fact that in Kotayya’s  case, the full Bench decision of the Lahore High Court in Sukhan Vs. Emperor  [AIR 1929 Lahore 344] and the division Bench decision of the Bombay High  Court in Ganuchandra Vs. Emperor [AIR 1932 Bombay 286] were  specifically approved by the Privy Council. It is pointed out that Section 27 is  virtually borrowed from Taylor’s treatise on the Law of Evidence as pointed out  by the full Bench of the Allahabad High Court in the vintage decision in Queen  Empress Vs. Babu Lal [1884, Indian Decisions, 6 Allahabad 510]. The  passage in Taylor’s Evidence (which is found in paragraph 902 of Volume 1 of  1931 Edition) is as follows: "902. (i). When, in consequence of information unduly obtained  from the prisoner, the property stolen, or the instrument of the  crime, or the body of the person murdered, or any other material  fact, has been discovered, proof is admissible that such discovery  was made conformably with the information so obtained. The  prisoner’s statement about his knowledge of the place where the  property or other article was to be found, being thus confirmed by  the fact, is shown to be true, and not to have been fabricated in  consequence of any inducement. It is, therefore, competent to  prove that the prisoner stated that the thing would be found by  searching a particular place, and that it was accordingly so found,  but it would not, in such a case of a confession improperly  obtained, be competent to inquire whether he confessed that the  had concealed it there. So much of the confession as relates  distinctly to the fact discovered by it may be given in evidence, as  this part at least of the statement cannot have been false."

It is therefore contended that the fact discovered must basically be a  concrete or material fact but not mental fact. The learned counsel Mr. Ram  Jethmalani further submits that the word ’discovery’ had two shades of  meaning: one is ’find and detect’ and the other is ’to uncover or reveal’ vide  ’Dictionary of Modern Legal Usage’ by  Bryan A. Garner. Though the first of the  meanings viz., ’to uncover or reveal’ has become obsolete according to Garner,  still, the expression ’discover’ should be construed according to its original

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sense when the Indian Evidence Act was framed. It is therefore submitted that  the discovery of a physical thing by the accused is a must. The doctrine of  confirmation by subsequent events which is the expression used in some of the  cases and text books only means that the discovery of the material object is  subsequent to the information leading to discovery. The learned counsel  reinforces his argument by stating that in the context and setting of Section 27  and in the company of the word ’discover’, fact only means the object, its  location and concealment.  The entire definition of ’fact’ should not be bodily  lifted into Section 27. The fact discovered is the concealment or disposal of the  object which is brought to light by the accused, but not anything relating to the  object in general. All the learned counsel for the defence then stressed on the  expression ’thereby discovered’ which means discovered pursuant to  information which he himself supplied. Countering the argument of the learned  senior counsel for the State, the learned counsel for the accused then contend  that the information and the discovery of fact should be intimately and  inextricably connected and the confirmation by means of subsequent  investigation cannot be considered to be discovery of fact as a direct result of  information furnished by the accused. Apart from Kotayya’s case, heavy  reliance is placed on the judgment of Privy Council in Kotayya’s case. We have noticed above that the confessions made to a police officer and  a confession made by any person while he or she is in police custody cannot be  proved against that person accused of an offence.  Of course, a confession  made in the immediate presence of a Magistrate can be proved against him.   So also Section 162 Cr.P.C. bars the reception of any statements made to a  police officer in the course of an investigation as evidence against the accused  person at any enquiry or trial except to the extent that such statements can be  made use of by the accused to contradict the witnesses.  Such confessions are  excluded for the reason that there is a grave risk of their statements being  involuntary and false.  Section 27, which unusually starts with a proviso, lifts  the ban against the admissibility of the confession/statement made to the  police to a limited extent by allowing proof of information of specified nature  furnished by the accused in police custody.  In that sense Section 27 is  considered to be an exception to the rules embodied in Sections 25 and 26  (vide AIR 1962 SC 1116).  Section 27 reads as follows: 27. How much of information received from accused may be  proved\027Provided that, when any fact is deposed to as discovered  in consequence of information received from a person accused of  any offence, in the custody of a police officer, so much of such  information, whether it amounts to a confession or not, as relates  distinctly to the fact thereby discovered, may be proved.          The history of case law on the subject of confessions under Section 27  unfolds divergent views and approaches. The divergence was mainly on twin  aspects: (i) Whether the facts contemplated by Section 27 are physical,  material objects or the mental facts of which the accused giving the  information could be said to be aware of. Some Judges have gone to the extent  of holding that the discovery of concrete facts, that is to say material objects,  which can be exhibited in the Court are alone covered by Section 27. (ii) The  other controversy was on the point regarding the extent of admissibility of a  disclosure statement.  In some cases a view was taken that any information,  which served to connect the object with the offence charged, was admissible  under Section 27.  The decision of the Privy Council in Kotayya’s case, which  has been described as a locus classicus, had set at rest much of the  controversy that centered round the interpretation of Section 27.  To a great  extent the legal position has got crystallized with the rendering of this decision.   The authority of Privy Council’s decision has not been questioned in any of the  decisions of the highest Court either in the pre or post independence era.   Right from 1950s, till the advent of the new century and till date, the passages  in this famous decision are being approvingly quoted and reiterated by the  Judges of this apex Court. Yet, there remain certain grey areas as  demonstrated by the arguments advanced on behalf of the State.         The first requisite condition for utilizing Section 27 in support of the  prosecution case is that the investigating police officer should depose that he  discovered a fact in consequence of the information received from an accused  person in police custody. Thus, there must be a discovery of fact not within the  knowledge of police officer as a consequence of information received. Of

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course, it is axiomatic that the information or disclosure should be free from  any element of compulsion. The next component of Section 27 relates to the  nature and extent of information that can be proved. It is only so much of the  information as relates distinctly to the fact thereby discovered that can be  proved and nothing more. It is explicitly clarified in the Section that there is no  taboo against receiving such information in evidence merely because it  amounts to a confession. At the same time, the last clause makes it clear that  it is not the confessional part that is admissible but it is only such information  or part of it, which relates distinctly to the fact discovered by means of the  information furnished. Thus, the information conveyed in the statement to  police ought to be dissected if necessary so as to admit only the information of  the nature mentioned in the Section. The rationale behind this provision is  that, if a fact is actually discovered in consequence of the information supplied,  it affords some guarantee that the information is true and can therefore be  safely allowed to be admitted in evidence as an incriminating factor against the  accused. As pointed out by the Privy Council in Kotayya’s case, "clearly the  extent of the information admissible must depend on the exact nature of the  fact discovered and the information must distinctly relate to that fact".  Elucidating the scope of this Section, the Privy Council speaking through Sir  John Beaumont said "normally, the Section is brought into operation when a  person in police custody produces from some place of concealment, some  object, such as a dead body, a weapon or ornaments, said to be connected  with the crime of which the informant is the accused". We have emphasized  the word ’normally’ because the illustrations given by the learned Judge are  not exhaustive. The next point to be noted is that the Privy Council rejected  the argument of the counsel appearing for the Crown that the fact discovered  is the physical object produced and that any and every information which  relates distinctly to that object can be proved. Upon this view, the information  given by a person that the weapon produced is the one used by him in the  commission of the murder will be admissible in its entirety. Such contention of  the Crown’s counsel was emphatically rejected with the following words: "\005If this be the effect of Section 27, little substance would remain  in the ban imposed by the two preceding sections on confessions  made to the police, or by persons in police custody. That ban was  presumably inspired by the fear of the Legislature that a person  under police influence  might be induced to confess by the exercise  of undue pressure. But if all that is required to lift the ban be the  inclusion in the confession of information relating to an object  subsequently produced, it seems reasonable to suppose that the  persuasive powers of the police will prove equal to the occasion,  and that in practice the ban will lose its effect\005"

Then, their Lordships proceeded to give a lucid exposition of the expression  ’fact discovered’ in the following passage, which is quoted time and again by  this Court: "\005In their Lordships’ view it is fallacious to treat the ’fact  discovered’ within the section as equivalent to the object produced;  the fact discovered embraces the place from which the object is  produced and the knowledge of the accused as to this, and the  information given must relate distinctly to this fact. Information as  to past user, or the past history, of the object produced is not  related to its discovery in the setting in which it is discovered.  Information supplied by a person in custody that "I will produce a  knife concealed in the roof of my house" does not lead to the  discovery of a knife; knives were discovered many years ago. It  leads to the discovery of the fact that a knife is concealed in the  house of the informant to his knowledge, and if the knife is proved  to have been used in the commission of the offence, the fact  discovered is very relevant. But if to the statement the words be  added "with which I stabbed A" these words are inadmissible since  they do not relate to the discovery of the knife in the house of the  informant." (emphasis supplied).

The approach of the Privy Council in the light of the above exposition of  law can best be understood by referring to the statement made by one of the

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accused to the police officer. It reads thus: "\005About 14 days ago, I, Kotayya and people of my party lay in  wait for Sivayya and others at about sunset time at the corner of  Pulipad tank. We, all beat Beddupati China Sivayya and Subayya,  to death. The remaining persons, Pullayya, Kotayya and Narayana  ran away. Dondapati Ramayya who was in our party received  blows on his hands. He had a spear in his hands. He gave it to me  then. I hid it and my stick in the rick of Venkatanarasu in the  village. I will show if you come. We did all this at the instigation of  Pulukuri Kotayya."

The Privy Council held that "the whole of that statement except the passage ’I  hid it’ (a spear) and my stick in the rick of Venkatanarasu in the village. I will  show if you come" is inadmissible. There is another important observation at  paragraph 11 which needs to be noticed. The Privy Council explained the  probative force of the information made admissible under Section 27 in the  following words: "\005Except in cases in which the possession, or concealment, of an  object constitutes the gist of the offence charged, it can seldom  happen that information relating to the discovery of a fact forms  the foundation of the prosecution case. It is only one link in the  chain of proof, and the other links must be forged in manner  allowed by law."

In paragraph 11, their Lordships observed that they were in agreement with  the view taken by the High Courts of Lahore and Bombay in Sukhan Vs.  Emperor [AIR 1929 Lahore 344] and Ganuchandra Vs. Emperor [AIR  1932 Bombay 286]. The contrary view taken by the Madras High Court in  Attappa Goundan Vs. Emperor [ILR 1937 Madras 695] was not accepted  by the Privy Council. In Attappa Goundan’s case, the High Court held that  even that part of the confessional statement, which revealed the connection  between the objects produced and the commission of murder was held to be  admissible under Section 27 in its entirety. This approach was criticized by the  Privy Council. To complete the sequence, we may refer to another decision of  the Madras High Court in Emperor Vs., Ramanuja Ayyangar [AIR 1935  Madras 528]. In that case, the majority of learned Judges had disagreed with  the view taken in Sukhan’s case that the expression ’fact’ in Section 27 should  be restricted to material objects or something which can be exhibited as  material object. It was held that the facts need not be self-probatory and the  word ’fact’ as contemplated by Section 27 is not limited to "actual physical  material object". Emphasis was laid on the wording ’any fact’. In this respect,  the view taken in Sukhan’s case (supra) was dissented from. The minority  view was that the discovery of a witness to the crime or the act of the accused  in purchasing the incriminating material cannot be proved by invoking Section  27. We have referred to this decision in Ramanuja Ayyangar’s case for the  reason that the expression ’fact’ was given a wider meaning in this case\027 which is the meaning now sought to be given by Mr. Gopal Subramnium. In  Attappa Goundan’s case, the connotation of the word ’fact’ i.e. whether it  can be restricted to a material object was not specifically dealt with. The  reason for referring to these two decisions of Madras High Court rendered  before Kotayya’s case becomes evident when we advert to the decision of this  Court in Omprakash [(1972) 1 SCC 249] a little later.         We retrace our discussion to Kotayya’s case for a while. Sir John  Beaumont who gave the opinion of the Privy Council in that case, was the  Judge who spoke for the Division Bench in Ganuchandra’s case [AIR 1932  Bombay 286]. In that case, the learned Judge observed\027"the fact discovered  within the meaning of that Section must I think be some concrete fact to which  the information directly relates, and in this case, such fact is the production of  certain property which had been concealed". This is also the view taken by  Shadi Lal, CJ who expressed the opinion of the majority in Sukhan’s case  wherein the learned Judge held that the phrase ’fact discovered’ refers to a  material and not to a mental fact. It was further elucidated by saying that "the  fact discovered may be the stolen property, the instrument of the crime, a  corpus of a person murdered or any other material  thing; or it may be a  material thing in relation to the place or locality where it is found". On the facts

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of the case, it was pointed out that "the fact discovered is not the ’karas’  simplicitor but the ’karas’ being found in the possession of Alladin. The  information to be admitted must relate distinctly to the latter. Thus, both in  Sukhan’s case and Ganuchandra’s case which were approved by the Privy  Council, two questions arose for consideration (a) whether Section 27 was  confined to physical objects and (b) as to the extent of information that was  admissible under Section 27. Mr. Gopal Subramanium is right in his submission  that the only point of controversy in Kotayya’s case related to the extent of  information that becomes admissible under Section 27 and it was with  reference to that aspect the view taken in Sukhan and Ganuchandra were  approved, though it was not said so in specific words. The other question as  regards the exact meaning and import of the expression ’discovery of fact’ was  not considered. Where a physical object was discovered in consequence of the  information furnished, which part of that information/statement becomes  relevant was the line of inquiry before the Privy Council. No doubt, the  illustrations given coupled with the fact that the same learned Judge took a  particular view on this aspect in Ganuchandra’s case may lead to an  impression that the learned Judges of the Privy Council understood the  expression ’fact’ primarily in the sense of material object but, as observed  already, the illustrations given are not exhaustive.         We are of the view that Kotayya’s case is an authority for the  proposition that ’discovery of fact’ cannot be equated to the object produced or  found. It is more than that. The discovery of fact arises by reason of the fact  that the information given by the accused exhibited the knowledge or the  mental awareness of the informant as to its existence at a particular place.         We now turn our attention to the precedents of this Court which followed  the track of Kotayya’s case. The ratio of the decision in Kotayya’s case  reflected in the underlined passage extracted supra was highlighted in several  decisions of this Court. The crux of the ratio in Kotayya’s case was explained by this Court in  State of Maharashtra vs. Damu.  Thomas J. observed that "the decision of  the Privy Council in Pulukuri Kotayya vs. Emperor is the most quoted  authority for supporting the interpretation that the "fact discovered" envisaged  in the section embraces the place from which the object was produced, the  knowledge of the accused as to it, but the information given must relate  distinctly to that effect".  In Mohmed Inayatullah vs. The State of  Maharashtra [(1976) 1 SCC 828], Sarkaria J. while clarifying that the  expression "fact discovered" in Section 27 is not restricted to a physical or  material fact which can be perceived by the senses, and that it does include a  mental fact, explained the meaning by giving the gist of what was laid down in  Pulukuri Kotayya’s case.  The learned Judge, speaking for the Bench  observed thus: "Now it is fairly settled that the expression "fact discovered"  includes not only the physical object produced, but also the  place from which it is produced and the knowledge of the  accused as to this (see Pulukuri Kotayya v. Emperor; Udai Bhan  v. State of Uttar Pradesh)"

So also in Udai Bhan  vs. State of Uttar Pradesh [AIR 1962 SC 1116].   Raghubar Dayal, J. after referring to Kotayya’s case stated the legal position  as follows:  "A discovery of a fact includes the object found, the place  from which it is produced and the knowledge of the accused  as to its existence."

       The above statement of law does not run counter to the contention of Mr.  Ram Jethmalani, that the factum of discovery combines both the physical  object as well as the mental consciousness of the informant-accused in relation  thereto.  However, what would be the position if the physical object was not  recovered at the instance of the accused was not discussed in any of these  cases.         There is almost a direct decision of this Court in which the connotation of  the expression "fact" occurring in Section 27 was explored and a view similar  to Sukhan’s case was taken on the supposition that the said view was  approved by the Privy  Council in Kotayya’s case. That decision is\027Himachal

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Pradesh Administration vs. Om Prakash [(1972) 1 SCC 249].  In that  case, on the basis of information furnished by the accused to the Police Officer  that he had purchased the weapon from a witness (PW11) and that he would  take the Police to him, the Police went to the Thari of PW11 where the accused  pointed out PW11 to the Police.  It was contended on behalf of the accused  that the information that he purchased the dagger from PW11 followed by his  leading the Police to the Thari and pointing him out was inadmissible under  Section 27 of the Evidence Act.  This argument was accepted.  Jaganmohan     Reddy, J. speaking for the Court observed thus: "In our view there is force in this contention.  A fact  discovered within the meaning of Section 27 must refer to a  material fact to which the information directly relates.  In  order to render the information admissible the fact  discovered must be relevant and must have been such that it  constitutes the information through which the discovery was  made.  What is the fact discovered in this case?.  Not the  dagger but the dagger hid under the stone which is not  known to the Police (see Pulukuri Kotayya and others v. King  Emperor).  But thereafter can it be said that the information  furnished by the accused that he purchased the dagger from  PW11 led to a fact discovered when the accused took the  police to the Thari of PW11 and pointed him out"            

       The learned Judge then referred to the decision of Madras High Court in  Emperor vs. Ramanuja Ayyangar [AIR 1935 Mad 528] which held that  the information relating to the purchase from the pointed shop and its carriage  by a witness pointed out was admissible. Reference was then made to the law  laid down in Athappa Goundan’s case [AIR 1937 Mad 618] and observed  that "this view was overruled by the Privy Council in Pulukuri Kotayya’s  case" (supra).         The passage in Sukhan’s case was then approvingly referred to and the  law was enunciated as follows: "In the Full Bench Judgment of Seven Judges in Sukhan  vs. the Crown, which was approved by the Privy Council in  Pulkuri Kotayya’s case, Shadi Lal, C.J., as he then was  speaking for the majority pointed out that the expression  ’fact’ as defined by Section 3 of the Evidence Act includes  not only the physical fact which can be perceived by the  senses but also the psychological fact or mental condition of  which any person is conscious and that it is in the former  sense that the word used by the Legislature refers to a  material and not to a mental fact.   It is clear therefore that  what should be discovered is the material fact and the  information that is admissible is that which has caused that  discovery so as to connect the information and the fact with  each other as the ’cause and effect’.  That information  which does not distinctly connect with the fact discovered  or that portion of the information which merely explains the  material thing discovered is not admissible under Section  27 and cannot be proved".

       The following observations are also crucial.

"As explained by this Court as well as by the Privy Council,  normally Section 27 is brought into operation where a  person in police custody produces from some place of  concealment some object said to be connected with the  crime of which the informant is the accused.  the  concealment of the fact which is not known to the police is  what is discovered by the information and lends assurance  that the information was true.  No witness with whom some  material fact, such as the weapon of murder, stolen  property or other incriminating article is not hidden sold or  kept and which is unknown to the Police can be said to be  discovered as a consequence of the information furnished

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by the accused.  These examples however are only by way  of illustration and are not exhaustive.  What makes the  information leading to the discovery of the witness  admissible is the discovery from him of the thing sold to  him or hidden or kept with him which the police did not  know until the information was furnished to them by the  accused.  A witness cannot be said to be discovered if  nothing is to be found or recovered from him as a  consequence of the information furnished by the accused  and the information which disclosed the identity of the  witness will not be admissible".   

       Then follows the statement of law: "But even apart from the admissibility of the information  under Section 27, the evidence of the Investigating Officer  and the panchas that the accused had taken them to PW11  and pointed him out and as corroborated by PW11 himself  would be admissible under Section 8 of the Evidence Act as  conduct of the accused".  

In an earlier paragraph, the Court stressed the need to exercise  necessary caution and care so as to be assured of the credibility of the  information furnished and the fact discovered.         Confronted with this decision which affirms the law laid down in  Sukhan’s case (supra), and which militates against the contention advanced  by the prosecution, the learned senior counsel Mr. Gopal Subramanium has  questioned the correctness and the binding authority of this judgment.  Firstly,  according to him, the judgment was based on certain wrong assumptions and,  secondly, it is pointed out that in the light of the later decisions, the  enunciation of law in Om Prakash case does not hold good.           In regard to the first point of criticism, the learned counsel     Mr. Gopal  Subramanium contended as follows: "OM PRAKASH was delivered on the basis that Sukhan  had been approved in Pulukuri Kotayya, and the  contrary view had been rejected by the Privy Council.  It  is submitted that the very basis of the decision in Om  Prakash was incorrect.  It is submitted that a reading of  para 13 of the judgment indicates that the ratio in  Athapa Goundan and Ramanuja Ayyangar were  perceived to be similar and it is on this assumption this  Court held that mental facts are not admissible in  evidence under Section 27.  The Court failed to note that  Ramanuja Ayyangar dealt with the admissibility of  mental facts which was not under consideration before  the Privy Council in Pulukuri Kottaya.  Athapa  Goundan which dealt with the question of extent of  admissibility was considered by the Privy Council and  overruled."

       We find considerable force in this criticism.  However, this criticism does  not justify a departure from the view taken by a coordinate Bench of this  Court, unless we categorize  it as a decision rendered per incuriam.  It is not  possible to hold so.  In fact, as pointed out by Mr. Ram Jethmalani, the said  interpretation of expression ’fact’ placed in Om Prakash (supra) and in some  other decisions of the pre-independence days, is in conformity with the opinion  of TAYLOR (quoted supra) which had apparently inspired the  drafters of the  Indian Evidence Act.  But that is not to say that the legal position canvassed by  Mr. Gopal Subramanium is not a reasonably possible one. However, we are  handicapped in approaching the issue independently, unfettered by the  decision in OM PRAKASH case.         We may add that in the case of Eerabhadrappa Vs. State of  Karnataka [(1983) 2 SCC 330] A.P. Sen, J. speaking for the Bench observed  that the word ’fact’ in Section 27 "means some concrete or material fact to  which the information directly relates". Then his Lordship quoted the famous  passage in Kotayya’s case. However, there was no elaboration.

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The next endeavour of Mr. Gopal Subramanium was to convince us that  the precedential force of the judgment in OM PRAKASH has been considerably  eroded by the subsequent pronouncements.  Two decisions have been cited to  substantiate his contention.  They are: Mohd. Inayatullah vs. State of  Maharashtra (supra) and State of Maharashtra vs. Damu (supra).  We do  not think that in any of these decisions ’discovery of fact’ was held to  comprehend a pure and simple mental fact or state of mind relating to a  physical object dissociated from the recovery of the physical object. Let us revert back to the decision in Mohd. Inayatullah’s case. The first  sentence in paragraph 13 of the following passage which has already been  referred to is relied on by the learned senior counsel for the State. "At one time it was held that the expression "fact discovered" in  the section is restricted to a physical or material fact which can be  perceived by the senses, and that it does not include a mental fact  (see Sukhan V. Crown; Rex V. Ganee).  Now it is fairly settled  that the expression "fact discovered" includes not only the physical  object produced, but also the place from which it is produced and  the knowledge of the accused as to this (see Palukuri Kotayya v.  Emperor; Udai Bhan v. State of Uttar Pradesh)"

The first sentence read with the second sentence in the above passage would  support the contention of Mr. Ram Jethmalani that the word ’fact’ embraces  within its fold both the physical object as well as the mental element in relation  thereto. This ruling in Inayatullah does not support the argument of the  State’s counsel that Section 27 admits of a discovery of a plain mental fact  irrespective of the discovery of physical fact. The conclusion reached in  Inayatullah’s case is revealing. The three fold fact discovered therein was: a)  the chemical drums, (b) the place i.e. the musafir khana wherein they lay in  deposit and (c) the knowledge of the accused of such deposit. The accused  took the police to the place of deposit and pointed out the drums. That portion  of the information was found admissible under Section 27. The rest of the  statement namely "which I took out from the Hazibundar of first accused" was  eschewed for the reason that it related to the past history of the drums or their  theft by the accused.         Let us see how far Damu’s case supports the contention of Mr. Gopal  Subramanium. At the outset, we may point out that Damu’s case did not lay  down any legal proposition beyond what was said in Kotayya’s case. The  statement of law in Kotayya that the fact discovered "embraces the place  from which the object is produced and the knowledge of the accused as to it  and the information given must relate distinctly to this fact" was reiterated  without any gloss or qualification. In that case, A3 disclosed to the  investigating officer that "Deepak’s dead body was carried by me and Guruji  (A2) on his motor cycle and thrown in the canal". The said statement of A3  was not found admissible in evidence by the High Court as the dead body was  not recovered pursuant to the disclosure made. This Court however took a  different view and held that the said statement was admissible under Section  27. It was held so in the light of the facts mentioned in paragraphs 34 & 37.  These are the facts: when an offer was made by A3 that he would point out the  spot, he was taken to the spot and there the I.O. found a broken piece of glass  lying on the ground which was picked up by him. A motor cycle was recovered  from the house of A2 and its tail lamp was found broken. The broken glass  piece recovered from the spot matched with and fitted into the broken tail  lamp. With these facts presented to the Court, the learned Judges after  referring to Kotayya’s case, reached the following conclusion in paragraph 37. "How did the particular information lead to the discovery of the  fact? No doubt, recovery of dead body of Dipak from the same  canal was antecedent to the information which PW44 obtained. If  nothing more was recovered pursuant to and subsequent to  obtaining the information from the accused, there would not have  been any discovery of any fact at all. But when the broken glass  piece was recovered from that spot and that piece was found to be  part of the tail lamp of the motorcycle of A2 Guruji, it can safely be  held that the investigating officer discovered the fact that A2 Guruji  had carried the dead body on that particular motorcycle up to the  spot".          (emphasis supplied)

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The events  highlighted in the case speak for themselves and reveal the  rationale of that decision. The view taken in Damu’s case does not make any  dent on the observations made and the legal position spelt out in Om Prakash  case. The High Court rightly distinguished Damu’s case because there was  discovery of a related physical object at least in part. The decision in Pandurang Kalu Patil Vs. State of Maharashtra  [(2002) 2 SCC 490] was also cited by the counsel for the State. We do not  think that the prosecution can derive assistance from what was laid down in  that judgment. The legal position enunciated in P. Kotayya’s case was only  reiterated in a little different language. It was observed that "recovery, or even  production of object by itself need not necessarily result in discovery of a fact.  That is why Sir John Beaumont said in Pulukuri Kotayya that it is fallacious to  treat the ’fact discovered’ within the Section as equivalent to the object  produced".  We need not delve further into this aspect as we are of the view that  another ingredient of the Section, namely, that the information provable  should relate distinctly to the fact thereby discovered is not satisfied, as we see  later. When we refer to the circumstances against some of the accused. There is one more point which we would like to discuss i.e. whether  pointing out a material object by the accused furnishing the information is a  necessary concomitant of Section 27.  We think that the answer should be in  the negative.  Though in most of the cases the person who makes the  disclosure himself leads the Police Officer to the place where an object is  concealed and points out the same to him, however, it is not essential that  there should  be such pointing out in order to make the information admissible  under Section 27.  It could very well be that on the basis of information  furnished by the accused, the Investigating Officer may go to the spot in the  company of other witnesses and recover the material object.  By doing so, the  Investigating Officer will be discovering a fact viz., the concealment of an  incriminating article and the knowledge of the accused furnishing the  information about it.  In other words, where the information furnished by the  person in custody is verified by the Police Officer by going to the spot  mentioned by the informant and finds it to be correct, that amounts to  discovery of fact within the meaning of Section 27.  Of course, it is subject to  the rider that the information so furnished was the immediate and proximate  cause of discovery. If the Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under  Section 27, though it may be one of the aspects that goes into evaluation of  that particular piece of evidence. How the clause\027"as relates distinctly to the fact thereby discovered" has  to be understood is the next point that deserves consideration. The  interpretation of this clause is not in doubt. Apart from Kotayya’s case,  various decisions of this Court have elucidated and clarified the scope and  meaning of the said portion of Section 27. The law has been succinctly stated  in Inayatullah’s case (supra). Sarkaria, J. analyzed the ingredients of the  Section and explained the ambit and nuances of this particular clause in the  following words: "..The last but the most important condition is that only "so much  of the information" as relates distinctly to the fact thereby  discovered is admissible. The rest of the information has to be  excluded. The word ’distinctly’ means ’directly’, ’indubitably’,  ’strictly’, ’unmistakably’. The word has been advisedly used to limit  and define the scope of the provable information. The phrase  ’distinctly relates to the fact thereby discovered’ is the linchpin of  the provision. This phrase refers to that part of the information  supplied by the accused which is the direct and immediate cause of  the discovery. The reason behind this partial lifting of the ban  against confessions and statements made to the police, is that if a  fact is actually discovered in consequence of information given by  the accused, it affords some guarantee of truth of that part, and  that part only, of the information which was the clear, immediate  and proximate cause of the discovery. No such guarantee or  assurance attaches to the rest of the statement which may be  indirectly or remotely related to the fact discovered."

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In the light of the legal position thus clarified, this Court excluded a part of the  disclosure statement to which we have already adverted.         In Bodhraj Vs. State of J & K [(2002) 8 SCC 45] this Court after  referring to the decisions on the subject observed thus: "\005The words "so much of such information", as relates distinctly to  the fact thereby discovered are very important and the whole force  of the section concentrates on them. Clearly the extent of the  information admissible must depend on the exact nature of the fact  discovered to which such information is required to relate\005"

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. Afzal 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\027to be  more accurate, simultaneous disclosures, per se, are not inadmissible under  Section 27.  ’A person accused’ need not necessarily be a single person, but it  could be plurality of accused.  It seems to us that the real reason for not 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 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\027almost 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.  However, there may be practical difficulties in placing reliance on  such evidence.  It may be difficult for the witness (generally the police officer),  to depose which accused spoke what words and in what sequence. In other  words, the deposition in regard to the information given by the two accused  may be exposed to criticism from the stand point of credibility and its nexus  with discovery.  Admissibility and credibility are two distinct aspects, as  pointed out by Mr. Gopal Subramanium.  Whether and to what extent such a  simultaneous disclosure could be relied upon by the Court is really a matter of  evaluation of evidence.  With these prefaratory remarks, we have to refer to  two decisions of this Court which are relied upon by the learned defence  counsel.           In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983 SC  367],  the prosecution sought to rely on the evidence that the appellant along  with the other two accused gave information to the IO that the ring (MO 1)  was sold to the jeweller\027PW3 in whose possession the ring was. PW3 deposed  that four accused persons whom he identified in the Court came to his shop  and they sold the ring for Rs.325/- and some days later, the Police Inspector

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accompanied by accused 1, 2 and 3 came to his shop and the said accused  asked PW3 to produce the ring which they had sold.  Then, he took out the  ring from the showcase and it was seized by the Police Inspector.  The  difficulty in accepting such evidence was projected in the following words by  D.A. Desai, J. speaking for the Court: "Does this evidence make any sense? He says that accused 1  to 4 sold him the ring.  He does not say who had the ring and  to whom he paid the money.  Similarly, he stated that  accused 1 to 3 asked him to produce the ring.  It is  impossible to believe that all spoke simultaneously. This way  of recording evidence is most unsatisfactory and we record  our disapproval of the same.  If evidence otherwise  confessional in character is admissible under Section 27 of  the Indian Evidence Act, it is obligatory upon the  Investigating Officer to state and record who gave the  information; when he is dealing with more than one accused,  what words were used by him so that a recovery pursuant to  the information received may be connected to the person  giving the information so as to provide incriminating evidence  against the person".              

       There is nothing in this judgment which suggests that simultaneous  disclosures by more than one accused do not at all enter into the arena of  Section 27, as a proposition of law.         Another case which needs to be noticed is the case of Ramkishan vs.  Bombay State [AIR 1955 SC 104]. The admissibility or otherwise of joint  disclosures did not directly come up for consideration in that case.  However,  while distinguishing the case of Gokuldas Dwarkadas decided by Bombay  High Court, a passing observation was made that in the said case the High  Court "had rightly held that a joint statement by more than one accused was  not contemplated by Section 27". We cannot understand this observation as  laying down the law that information almost simultaneously furnished by two  accused in regard to a fact discovered cannot be received in evidence under  Section 27.  It may be relevant to mention that in the case of Lachhman  Singh vs. The State [1952 SCR 839] this Court expressed certain  reservations on the correctness of the view taken by some of the High Courts  discountenancing the joint disclosures. 15. CALL RECORDS\027PROOF AND AUTHENTICITY         It is contended by Mr. Shanti Bhushan, appearing for the accused  Shaukat that the call records relating to the cellular phone No. 919811573506  said to have been used by Shaukat have not been proved as per the  requirements of law and their genuineness is in doubt. The call records relating  to the other mobile numbers related to Gilani and Afzal are also subjected to  the same criticism. It is the contention of the learned counsel that in the  absence of a certificate issued under sub-Section (2) of Section 65B of the  Evidence Act with the particulars enumerated in clauses (a) to (e), the  information contained in the electronic record cannot be adduced in evidence  and in any case in the absence of examination of a competent witness  acquainted with the functioning of the computers during the relevant time and  the manner in which the printouts were taken, even secondary evidence under  Section 63 is not admissible.         Two witnesses were examined to prove the printouts of the computerized  record furnished by the cellular service providers namely AIRTEL (Bharti  Cellular Limited) and ESSAR Cellphone. The call details of the mobile No.  9811573506 (which was seized from Shaukat’s house) are contained in  Exhibits 36/1 to 36/2. The covering letters signed by the Nodal Officer of  Sterling Cellular Limited are Ext.P36/6 and P36/7 bearing the dates 13th & 18th  December respectively. The call details of mobile No. 9811489429 attributed to  Afzal are contained in Ext.P36/3 and the covering letter addressed to the  Inspector (Special Cell)\027PW66 signed by the Nodal Officer is Ext.36/5. The call  details of 9810081228 belonging to the subscriber SAR Gilani are contained in  Exts. 35/8.  The above two phones were obtained on cash card basis. The  covering letter pertaining thereto and certain other mobile numbers was signed  by the Security Manager of Bharti Cellular Limited. The call details relating to  another cellphone number 9810693456 pertaining to Mohammed is Ext.35/5.

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These documents i.e. Ext.35 series were filed by PW35 who is the person that  signed the covering letter dated 17th December bearing Ext.35/1. PW35  deposed that "all the call details are computerized sheets obtained from the  computer". He clarified that "the switch which is maintained in the computer in  respect of each telephone receives the signal of the telephone number, called  or received and serves them to the Server and it is the Server which keeps the  record of the calls made or received. In case where call is made and the  receiver does not pick up the phone, the server which makes a loop of the  route would not register it". As far as PW36 is concerned, he identified the  signatures of the General Manager of his Company who signed Ext.P36 series.  He testified to the fact that the call details of the particular telephone numbers  were contained in the relevant exhibits produced by him. It is significant to  note that no suggestion was put to these two witnesses touching the  authenticity of the call records or the possible tampering with the entries,  although the arguments have proceeded on the lines that there could have  been fabrication.  In support of such argument, the duplication of entries in  Exts.36/2 and 36/3 and that there was some discrepancy relating to the Cell  I.D. and IMEI number of the handset at certain places was pointed out. The  factum of presence of duplicate entries was elicited by the counsel appearing  for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of  DW10\027a technical expert, was only to the effect that it was possible to clone a  SIM by means of a SIM Programmer which to his knowledge, was not available  in Delhi or elsewhere. His evidence was only of a general nature envisaging a  theoretical possibility and not with reference to specific instances.  According to Section 63, secondary evidence means and includes, among  other things, "copies made from the original by mechanical processes which in  themselves ensure the accuracy of the copy, and copies compared with such  copies". Section 65 enables secondary evidence of the contents of a document  to be adduced if the original is of such a nature as not to be easily movable. It  is not in dispute that the information contained in the call records is stored in  huge servers which cannot be easily moved and produced in the Court. That is  what the High Court has also observed at para 276. Hence, printouts taken  from the computers/servers by mechanical process and certified by a  responsible official of the service providing Company can be led into evidence  through a witness who can identify the signatures of the certifying officer or  otherwise speak to the facts based on his personal knowledge. Irrespective of  the compliance of the requirements of Section 65B which is a provision dealing  with admissibility of electronic records, there is no bar to adducing secondary  evidence under the other provisions of the Evidence Act, namely Sections 63 &  65. It may be that the certificate containing the details in sub-Section (4) of  Section 65B is not filed in the instant case, but that does not mean that  secondary evidence cannot be given even if the law permits such evidence to  be given in the circumstances mentioned in the relevant provisions, namely  Sections 63 & 65.         The learned senior counsel Mr. Shanti Bhushan then contended that the  witnesses examined were not technical persons acquainted with the functioning  of the computers, nor they do have personal knowledge of the details stored in  the servers of the computers. We do not find substance in this argument. Both  the witnesses were responsible officials of the concerned Companies who  deposed to the fact that they were the printouts obtained from the computer  records. In fact the evidence of PW35 shows that he is fairly familiar with the  computer system and its output.  If there was some questioning vis-‘-vis  specific details or specific suggestion of fabrication of printouts, it would have  been obligatory on the part of the prosecution to call a technical expert directly  in the know of things.  The following observations of House of Lords in the case  of R Vs. Shepard [1993 AC 380] are quite apposite: "\005The nature of the evidence to discharge the burden of showing  that there has been no improper use of the computer and that it  was operating properly will inevitably vary from case to case. The  evidence must be tailored to suit the needs of the case. I suspect  that it will very rarely be necessary to call an expert and that in  the vast majority of cases it will be possible to discharge the  burden by calling a witness who is familiar with the operation of  the computer in the sense of knowing what the computer is  required to do and who can say that it is doing it properly."

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Such a view was expressed even in the face of a more stringent provision in  Section 69 of the Police and Criminal Act, 1984 in U.K. casting a positive  obligation on the part of the prosecution to lead evidence in respect of proof of  the computer record. We agree with the submission of Mr. Gopal Subramanium  that the burden of prosecution under the Indian Law cannot be said to be  higher than what was laid down in R Vs. Shepard (supra).         Although necessary suggestions were not put forward to the witnesses so  as to discredit the correctness/genuineness of the call records produced, we  would prefer to examine the points made out by the learned counsel for the  accused independently. As already noted, one such contention was about the  presence of duplicate entries in Ext.36/2 and 36/3. We feel that an innocuous  error in the computer recording is being magnified to discredit the entire  document containing the details without any warrant. As explained by the  learned counsel for the State, the computer, at the first instance, instead of  recording the IMEI number of the mobile instrument, had recorded the IMEI  and cell ID (location) of the person calling/called by the subscriber. The  computer rectified this obvious error immediately and modified the record to  show the correct details viz., the IMEI and the cell I.D. of the subscriber only.  The document is self-explanatory of the error. A perusal of both the call  records with reference to the call at 11:19:14 hours exchanged between  9811489429 (Shaukat’s) and 9811573506 (Afzal’s) shows that the said call  was recorded twice in the call records. The fact that the same call has been  recorded twice in the call records of the calling and called party simultaneously  demonstrates beyond doubt that the correctness or genuineness of the call is  beyond doubt. Further, on a comparative perusal of the two call records, the  details of Cell I.D. and IMEI of the two numbers are also recorded. Thus, as  rightly pointed out by the counsel for the State Mr. Gopal Subramanium, the  same call has been recorded two times, first with the cell ID and IMEI number  of the calling number (9811489429). The same explanation holds good for the  call at 11:32:40 hours. Far from supporting the contention of the defence, the  above facts, evident from the perusal of the call records, would clearly show  that the system was working satisfactorily and it promptly checked and  rectified the mistake that occurred.  As already noticed, it was not suggested  nor could it be suggested that there was any manipulation or material  deficiency in the computer on account of these two errors. Above all, the  printouts pertaining to the call details exhibited by the prosecution are of such  regularity and continuity that it would be legitimate to draw a presumption that  the system was functional and the output was produced by the computer in  regular use, whether this fact was specifically deposed to by the witness or  not. We are therefore of the view that the call records are admissible and  reliable and rightly made use of by the prosecution. 16. Interception of Phone Calls         The legality and admissibility of intercepted telephone calls arises in the  context of telephone conversation between Shaukat and his wife Afsan Guru on  14th December at 20:09 hrs and the conversation between Gilani and his  brother Shah Faizal on the same day at 12:22 hrs.  Interception of  communication is provided for by the provisions contained in Chapter V of the  POTO/POTA which contains Sections 36 to 48. The proviso to Section 45 lays  down the pre-requisite conditions for admitting the evidence collected against  the accused through the interception of wire, electronic or oral communication.   Chapter V governing the procedure for interception and admission of the  intercepted communications pre-supposes that there is an investigation of a  terrorists act under the POTA has been set in motion. It is not in dispute that  the procedural requirements of Chapter V have not been complied with when  such interceptions took place on 14th December, 2001.  But, as already  noticed, on the crucial date on which interception took place (i.e. 14th  December), no offence under POTA was included \026 whether in the FIR or in any  other contemporaneous documents.  We have already held that the non- inclusion of POTO offences even at the threshold of investigation cannot be  legally faulted and that such non-inclusion was not deliberate.  The  admissibility or the evidentiary status of the two intercepted conversations  should, therefore, be judged de hors the provisions of POTO/POTA.  On the  relevant day, the interception of messages was governed by Section 5(2) of  the Indian Telegraph Act read with Rule 419-A of the Indian Telegraph Rules.  

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The substantive power of interception by the Government or the authorized  officer is conferred by Section 5.  The modalities and procedure for interception  is governed by the said Rules.  It is contended by the learned senior counsel  appearing for the two accused \026 Shaukat and Gilani, that even the Rule \026  419A, has not been complied with in the instant case, and, therefore, the tape- recorded conversation obtained by such interception cannot be utilized by the  prosecution to incriminate the said accused.  It is the contention of learned  counsel for the State, Mr. Gopal Subramanium, that there was substantial  compliance with Rule 419A and, in any case, even if the interception did not  take place in strict conformity with the Rule, that does not affect the  admissibility of the communications so recorded.  In other words, his  submission is that the illegality or irregularity in interception does not affect its  admissibility in evidence there being no specific embargo against the  admissibility in the Telegraph Act or in the Rules. Irrespective of the merit in  the first contention of Mr. Gopal Subramanium, we find force in the alternative  contention advanced by him.         In regard to the first aspect, two infirmities are pointed out in the  relevant orders authorizing and confirming the interception of specified  telephone numbers. It is not shown by the prosecution that the Joint Director,  Intelligence Bureau who authorized the interception, holds the rank of Joint  Secretary to the Government of India. Secondly, the confirmation orders  passed by the Home Secretary (contained in volume 7 of lower Court record,  Page 447 etc.,) would indicate that the confirmation was prospective. We are  distressed to note that the confirmation orders should be passed by a senior  officer of the Government of India in such a careless manner, that too, in an  important case of this nature. However, these deficiencies or inadequacies do  not, in our view, preclude the admission of intercepted telephonic  communication in evidence. It is to be noted that unlike the proviso to Section  45 of POTA, Section 5(2) of the Telegraph Act or Rule 419A does not deal with  any rule of evidence. The non-compliance or inadequate compliance with the  provisions of the Telegraph Act does not per se affect the admissibility. The  legal position regarding the question of admissibility of the tape recorded  conversation illegally collected or obtained is no longer res integra in view of  the decision of this Court in R.M. Malkani Vs. State of Maharashtra  [(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous  tape record of a relevant conversation is a relevant fact and is admissible as  res gestae under Section 7 of the Evidence Act. Adverting to the argument that  Section 25 of the Indian Telegraph Act was contravened the learned Judges  held that there was no violation. At the same time, the question of  admissibility of evidence illegally obtained was discussed. The law was laid  down as follows: "\005There is warrant for the proposition that even if evidence is  illegally obtained it is admissible. Over a century ago it was said in  an English case where a constable searched the appellant illegally  and found a quantity of offending article in his pocket that it would  be a dangerous obstacle to the administration of justice if it were  held, because evidence was obtained by illegal means, it could not  be used against a party charged with an offence. See Jones V.  Owen (1870) 34 JP 759. The Judicial Committee in Kumar, Son  of Kanju V. R [1955 1 All E.R. 236] dealt with the conviction of  an accused of being in unlawful possession of ammunition which  had been discovered in consequence of a search of his person by a  police officer below the rank of those who were permitted to make  such searches. The Judicial Committee held that the evidence was  rightly admitted. The reason given was that if evidence was  admissible it matters not how it was obtained. There is of course  always a word of caution. It is that the Judge has a discretion to  disallow evidence in a criminal case if the strict rules of  admissibility would operate unfairly against the accused. That  caution is the golden rule in criminal jurisprudence."

We may also refer to the decision of a Constitution Bench of this Court in  Pooranmal Vs. Director of Inspection [1974 2 SCR 704] in which the  principle stated by the Privy Council in Kurma’s case was approvingly referred  to while testing the evidentiary status of illegally obtained evidence. Another

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decision in which the same approach was adopted is a recent judgment in  State Vs. NMT Joy Immaculate [(2004) 5 SCC 729]. It may be mentioned  that Pooranmal’s case was distinguished by this Court in Ali Musfata vs.  State of Kerala [(1994) 6 SCC 569] which is a case arising under NDPS Act  on the ground that contraband material seized as a result of illegal search and  seizure could by itself be treated as evidence of possession of the contraband  which is the gist of the offence under the said Act. In the instant case, the tape  recorded conversation which has been duly proved and conforms to the  requirements laid down by this Court in Ramsingh Vs. Ramsingh [(1985)  Suppl. SCC 611] can be pressed into service against the concerned accused  in the joint trial for the offences under the Indian Penal Code as well as POTA.  Such evidence cannot be shut out by applying the embargo contained in  Section 45 when on the date of interception, the procedure under Chapter V of  POTA was not required to be complied with. On the relevant date POTA was  not in the picture and the investigation did not specifically relate to the  offences under POTA. The question of applying the proviso to Section 45 of  POTA does not, therefore, arise as the proviso applies only in the event of the  communications being legally required to be intercepted under the provisions  of POTA. The proviso to Section 45 cannot be so read as to exclude such  material in relation to POTA offences if it is otherwise admissible under the  general law of evidence. 17. Procedural safeguards in POTA and their impact on confessions                  As already noticed, POTA has absorbed into it the guidelines spelt out in  Kartar Singh’s case and D.K.Basus’s case in order to impart an element of  fairness and reasonableness into the stringent provisions of POTA in tune with  the philosophy of Article 21 and allied constitutional provisions. These salutary  safeguards are contained in Section 32 and Section 52 of POTA.  The  peremptory prescriptions embodied in Section 32 of POTA are:\026  (a) The police officer shall warn the accused that he is not bound  to make the confession and if he does so, it may be used against  him (vide sub-section (2). (b) 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 (vide sub-section (3).  (c) The person from whom a confession has been recorded under  sub-section (1) shall be produced before the Chief Metropolitan  Magistrate or Chief Judicial Magistrate along with the original  statement of confession, within forty-eight hours (vide sub-section  (4). (d) The CMM/CJM shall record the statement, if any, made by  the person so produced and get his signature and if there is any  complaint of torture, such person shall be directed to be produced  for medical examination.  After recording the statement and after  medical examination, if necessary, he shall be sent to judicial  custody (vide sub-section (5).

The mandate of sub-sections 2 & 3 is not something new. Almost similar  prescriptions were there under TADA also. In fact, the fulfillment of such  mandate is inherent in the process of recording a confession by a statutory  authority.  What is necessarily implicit is, perhaps, made explicit.  But the  notable safeguards which were lacking in TADA are to be found in sub-sections  4 & 5. The lofty purpose behind the mandate that the maker of confession shall  be sent to judicial custody by the CJM before whom he is produced is to  provide an atmosphere in which he would feel free to make a complaint against  the police, if he so wishes. The feeling that he will be free from the shackles of  police custody after production in the Court will minimize, if not remove, the  fear psychosis by which he may be gripped. The various safeguards enshrined  in Section 32 are meant to be strictly observed as they relate to personal  liberty of an individual. However, we add a caveat here. The strict enforcement  of the provision as to judicial remand and the invalidation of confession merely  on the ground of its non-compliance may present some practical difficulties at  times. Situations may arise that even after the confession is made by a person  in custody, police custody may still be required for the purpose of further  investigation. Sending a person to judicial custody at that stage may retard the  investigation. Sometimes, the further steps to be taken by the investigator

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with the help of the accused may brook no delay. An attempt shall however be  made to harmonize this provision in Section 32(5) with the powers of  investigation available to the police. At the same time, it needs to be  emphasized that the obligation to send the confession maker to judicial  custody cannot be lightly disregarded. The police custody cannot be given on  mere asking by the police. It shall be remembered that sending a person who  has made the confession to judicial custody after he is produced before the  CJM is the normal rule and this procedural safeguard should be given its due  primacy. The CJM should be satisfied that it is absolutely necessary that the  confession maker shall be restored to police custody for any special reason.  Such a course of sending him back to police custody could only be done in  exceptional cases after due application of mind. Most often, sending such  person to judicial custody in compliance with Section 32(5) soon after the  proceedings are recorded by the CJM subject to the consideration of the  application by the police after a few days may not make material difference for  further investigation. The CJM has a duty to consider whether the application is  only a ruse to get back the person concerned to police custody in case he  disputes the confession or it is an application made bona fide in view of the  need and urgency involved. We are therefore of the view that the non- compliance with the judicial custody requirement does not per se vitiate the  confession, though its non-compliance should be one of the important factors  that must be borne in mind in testing the confession. These provisions of Section 32, which are conceived in the interest of the  accused, will go a long way to screen and exclude confessions, which appear to  be involuntary. The requirements and safeguards laid down in sub-sections 2  to 5 are an integral part of the scheme providing for admissibility of confession  made to the police officer. The breach of any one of these requirements would  have a vital bearing on the admissibility and evidentiary value of the  confession recorded under Section 32(1) and may even inflict a fatal blow on  such confession. We have another set of procedural safeguards laid down in  Section 52 of POTA which are modelled on the guidelines envisaged by D.K.  Basu (supra).  Section 52 runs as under:

"52 (1) Where a police officer arrests a person, he shall  prepare a custody memo of the person arrested.   (2)  The person arrested shall be informed of his right to  consult a legal practitioner as soon as he is brought to the  police station. (3)     Whenever any person is arrested, information of his  arrest shall be immediately communicated by the police officer  to a family member or in his absence to a relative of such  person by telegram, telephone or by any other means and this  fact shall be recorded by the police officer under the signature  of the person arrested. (4)     The person arrested shall be permitted to meet the legal  practitioner representing him during the course of  interrogation of the accused person:

       Provided that nothing in this sub-section, shall, entitle  the legal practitioner to remain present throughout the  period of interrogation."                

                  Sub-sections 2 & 4 as well as sub-Section (3) stem from the guarantees  enshrined in Articles 21 and 22(1) of the Constitution.  Article 22(1) enjoins  that no person who is arrested shall be detained in custody without being  informed, as soon as may be, of the grounds for such arrest nor shall he be  denied the right to consult, and to be defended by, a legal practitioner of his  choice.  They are also meant to effectuate the commandment of Article 20(3)  that no person accused of any offence shall be compelled to be a witness  against himself.          The breadth and depth of the principle against self-incrimination  imbedded in Article 20(3) was unravelled by a three Judge Bench speaking  through Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC  424]. It was pointed out by the learned Judge that the area covered by Article

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20(3) and Section 161(2) of Cr.P.C. is substantially the same. "Section 161(2)  of the Cr.P.C. is a parliamentary gloss on the constitutional clause"\027it was  observed. This Court rejected the contention advanced on behalf of the State  that the two provisions, namely, Article 20(3) and Section 161, did not operate  at the anterior stages before the case came to Court and the incriminating  utterance of the accused, previously recorded, was attempted to be  introduced. Noting that the landmark decision in Miranda Vs. Arizona [1966,  384 US 436] did extend the embargo to police investigation also, the Court  observed that there was no warrant to truncate the constitutional protection  underlying Article 20(3). It was held that even the investigation at the police  level is embraced by Article 20(3) and this is what precisely Section 161(2)  means. The interpretation so placed on Article 20(3) and Section 161, in the  words of the learned Judge, "brings us nearer to the Miranda mantle of  exclusion which extends the right against self-incrimination, to police  examination and custodial interrogation and takes in suspects as much as  regular accused persons". The observations in M.P. Sharma Vs. Satish  Chandra [AIR 1954 SC 300] to the effect that "the protection afforded to an  accused insofar as it is related to the phrase ’to be a witness’ is not merely in  respect of testimonial compulsion in the Court room but may well extend to  compelled testimony previously obtained from him" were cited with approval.         In the same Judgment, we find lucid exposition of the width and content  of Article 22(1). Krishna Iyer, J. observed\027

"\005The spirit and sense of Article 22(1) is that it is fundamental to  the rule of law that the services of a lawyer shall be available for  consultation to any accused person under circumstances of near- custodial interrogation. Moreover, the observance of the right  against self-incrimination is best promoted by conceding to the  accused the right to consult a legal practitioner of his choice."

Article 22(1) was viewed to be complementary to Article 20(3). It was  observed\027"we think that Article 20(3) and Article 22(1) may, in a way, be  telescoped by making it prudent for the police to permit the advocate of the  accused, if there be one to be present at the time he is examined". It was  pointed out that lawyer’s presence, in the context of Article 20(3), "is an  assurance of awareness and observance of the right to silence". It was then  clarified\027"we do not lay down that the police must secure the services of a  lawyer\005\005but all that we mean is that if an accused person expresses the wish  to have his lawyer by his side when his examination goes on, this facility shall  not be denied", without being exposed to the charge of securing involuntary  self-incrimination. It was also clarified that the police need not wait more than  for a reasonable while for an advocate’s arrival. But they must invariably  warn\027and record that fact about the right to silence. It was aptly and  graphically said\027"Article 20(3) is not a paper tiger but a provision to police the  police and to silence coerced crimination". Based on the observations in  Nadini Satpathy’s case, it is possible to agree that the constitutional  guarantee under Article 22(1) only implies that the suspect in the police  custody shall not be denied the right to meet and consult his lawyer even at  the stage of interrogation. In other words, if he wishes to have the presence of  the lawyer, he shall not be denied that opportunity. Perhaps, Nandini  Satpathy does not go so far as Miranda in establishing access to lawyer at  interrogation stage. But, Section 52(2) of POTA makes up this deficiency. It  goes a step further and casts an imperative on the police officer to inform the  person arrested of his right to consult a legal practitioner, soon after he is  brought to the police station. Thus, the police officer is bound to apprise the  arrested person of his right to consult the lawyer. To that extent, Section  52(2) affords an additional safeguard to the person in custody. Section 52(2)  is founded on the MIRANDA rule.         A discussion on the raison d’etre and the desirability of the provision  enacted in Section 52(1) read with Section 52(4) can best be understood by  referring to the seminal case of Miranda Vs. Arizona which is an oft-quoted  decision. The privilege against the self-incrimination was expressly protected  by the V amendment of the U.S. Constitution. It provides, as Article 20(3) of  Indian Constitution provides, that no person\005."shall be compelled in any  criminal case to be a witness against himself". Such privilege lies at the heart

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of the concept of a fair procedure and such norm is now recognized to be an  international standard. The V amendment also guarantees a right akin to  Article 21 of our Constitution by enjoining that no person shall be deprived of  life, liberty or property without due process of law. Another notable safeguard  to the accused is to be found in the VI amendment which inter alia provides  that in a criminal prosecution, the accused shall have the assistance of counsel  for his defence. The safeguard is substantially similar to Article 22(1) of the  Indian Constitution. It is in the context of exposition of these constitutional  provisions that the U.S. Supreme Court handed down the significant ruling in  Miranda. The core principles underscored in Miranda have withstood the  judicial scrutiny in the subsequent rulings, though the straight jacketed  warning procedures and the effect of technical non-compliance of Miranda  procedures evoked critical comments and set a process of debate. Miranda is  often referred to as "the marriage of the V&VI amendments" and it is seen as  the natural outgrowth of      V Amendment guarantees, spread over a century  or more. Prior to Miranda ruling, confessions were only required to meet the  ’voluntariness’ test. In the post Miranda era, police have to prove that they  read specific Miranda warnings and obtained an ’intelligent waiver’. The  purpose of Miranda it is said, is to neutralize the distinct psychological  disadvantage that suspects are under when dealing with police. The  proposition laid down in the majority opinion in Miranda case was that "the  prosecution may not use statements, whether exculpatory or inculpatory,  stemming from custodial interrogation of the defendant unless it demonstrates  the use of procedural safeguards effective to secure the privilege against self- incrimination". To ensure tht the exercise of the right will be scrupulously  honoured, the Court laid down the following measures:

"He must be warned prior to any questioning that he has the right  to remain silent, that anything he says can be used against him in  a Court of law, that he has the right to the presence of an  attorney, and that if he cannot afford an attorney one will be  appointed for him prior to any questioning if he so desires.  Opportunity to exercise these rights must be afforded to him  throughout the interrogation. After such warnings have been  given, and such opportunity afforded him, the individual may  knowingly and intelligently waive these rights and agree to answer  questions or make a statement. But unless and until such  warnings and waiver are demonstrated by the prosecution at trial,  no evidence obtained as a result of interrogation can be used  against him".

On the content of the right to consult a counsel not merely at the stage  of trial, but also at the interrogation stage, Chief Justice Warren observed  thus: "In order fully to apprise a person interrogated of the extent of his  rights under this system then, it is necessary to warn him not only  that he has the right to consult with an attorney, but also that if  he is indigent a lawyer will be appointed to represent him. Without  this additional warning, the admonition of the right to consult with  counsel would often be understood as meaning only that he can  consult with a lawyer if he has one or has the funds to obtain one.  The warning of a right to counsel would be hollow if not couched in  terms that would convey to the indigent\027the person most often  subjected to interrogation\027the knowledge that he too has a right  to have counsel present."

       At the same time it was clarified\027

"This does not mean, as some have suggested, that each police  station must have a "station house lawyer" present at all times to  advise prisoners. It does mean, however, that if police propose to  interrogate a person, they must make known to him that he is  entitled to a lawyer and that if he cannot afford one, a lawyer will  be provided for him prior to any interrogation."

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It was aptly pointed out that "the modern practice of ’in custody  interrogation’ is psychologically rather than physically oriented".         Now the question remains as to what is the effect of non-compliance of  the obligations cast on the police officer by sub-Sections (2) to (4) of Section  52. This question becomes relevant as we find the non observance of the  requirements of sub-Section (2) read with sub-Section (4) as well as sub- Section (3) or one of them in the instant cases. Does it have a bearing on the  voluntariness and admissibility of the confession recorded under Section  32(1)? Should these safeguards envisaged in Section 52(1) be telescoped into  Section 32? These are the questions which arise.         In our considered view, the violation of procedural safeguards under  Section 52 does not stand on the same footing as the violation of the  requirements of sub-Sections (2) to (5) of Section 32. As already observed,  sub-Sections (2) to (5) of Section 32 have an integral and inseparable  connection with the confession recorded under Section 32(1). They are  designed to be checks against involuntary confessions and to provide an  immediate remedy to the person making the confession to air his grievance  before a judicial authority. These safeguards are, so to say, woven into the  fabric of Section 32 itself and their observance is so vital that the breach  thereof will normally result in eschewing the confession from consideration,  subject to what we have said about the judicial custody. The prescriptions  under Section 52, especially those affording an opportunity to have the  presence of the legal practitioner, are no doubt supplemental safeguards as  they will promote the guarantee against self-incrimination even at the stage of  interrogation; but these requirements laid down in Section 52 cannot be  projected into Section 32 so as to read all of them as constituting a code of  safeguards of the same magnitude. To hold that the violation of each one of  the safeguards envisaged by Section 52 would lead to automatic invalidation of  confession would not be in consonance with the inherent nature and scheme of  the respective provisions.  However, we would like to make it clear that the  denial of the safeguards under sub-Sections (2) to (4)  of Section 52 will be  one of the relevant factors that would weigh with the Court to act upon or  discard the confession. To this extent they play a role vis-‘-vis the confessions  recorded under Section 32, but they are not as clinching as the provisions  contained in sub-Sections (2) to (5) of Section 32. 18. CASE OF MOHD. AFZAL (A1) (i)     Legal Assistance :         The first point raised by Mr. Sushil Kumar, appearing for the accused  Afzal, was that he was denied proper legal aid, thereby depriving him of  effective defence in the course of trial. In sum and substance, the contention is  that the counsel appointed by the Court as ’amicus curiae’ to take care of his  defence was thrust on him against his will and the first amicus appointed made  concessions with regard to the admission of certain documents and framing of  charges without his knowledge.  It is further submitted that the counsel who  conducted the trial did not diligently cross-examine the witnesses. It is,  therefore, contended that his valuable right of legal aid flowing from Articles 21

and 22 is violated. We find no substance in this contention. The learned trial  Judge did his best to afford effective legal aid to the accused Afzal when he  declined to engage a counsel on his own. We are unable to hold that the  learned counsel who defended the accused at the trial was either inexperienced  or ineffective or otherwise handled the case in a casual manner. The criticism  against the counsel seems to be an after thought raised at the appellate stage.  It was rightly negatived by the High Court.         Coming to the specific details, in the first instance, when Afzal along with  other accused was produced before the special Judge, he was offered the  assistance of a counsel. One Mr. Attar Alam was appointed. However, the said  advocate was not willing to act as amicus. On 14.5.2002, the charge sheet was  filed in the Court. On 17.5.2002, the trial Judge appointed Ms. Seema Gulati  who agreed to defend Afzal. She filed Vakalatnama along with her junior Mr.  Neeraj Bansal on the same day on behalf of the accused Afzal. On 3.6.2002,  the arguments on charges were heard. Afzal was represented by Ms. Seema  Gulati. The counsel conceded that there was prima facie material to frame  charges. The Court framed charges against all the accused on 4.6.2002 and  the accused pleaded not guilty. True, the appellant was without counsel till

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17.5.2002 but the fact remains that till then, no proceedings except extending  the remand and furnishing of documents took place in the Court. The next date  which deserves mention is 5.6.2002. On that date, all the counsel appearing  for the accused agreed that postmortem reports, MLCs, documents related to  recovery of guns and explosive substances at the spot should be considered as  undisputed evidence without formal proof which resulted in dropping of  considerable number of witnesses for the prosecution. The learned senior  counsel for the appellant by referring to the application filed by Ms. Seema  Gulati on 1.7.2002 seeking her discharge from the case, highlights the fact  that she took no instructions from Afzal or discussed the case with him and  therefore no concession should have been made by her. The contention has no  force. Assuming that the counsel’s statement that she took no instructions  from the accused is correct, even then there is nothing wrong in the conduct of  the advocate in agreeing for admission of formal documents without formal  proof or in agreeing for the framing of charges. The counsel had exercised her  discretion reasonably. The appellant accused did not object to this course  adopted by the amicus throughout the trial. No doubt, some of the documents  admitted contained particulars of identification of the deceased terrorists by  the appellant Afzal, but, the factum of identification was independently proved  by the prosecution witnesses and opportunity of cross- examination was  available to the accused. In the circumstances, we cannot say that there was a  reasonable possibility of prejudice on account of admission of the said  documents without formal proof. Coming to the next phase of development, on 1.7.2002,         Ms. Seema  Gulati filed an application praying for her discharge from the case citing a  curious reason that she had been engaged by another accused Gilani to appear  on his behalf. An order was passed on 2.7.2002 releasing her from the case.  Mr. Neeraj Bansal who filed Vakalat along with Ms. Seema Gulati was then  nominated as amicus to defend Afzal and the brief was handed over to him. NO  objection was raised by Afzal on that occasion. Inspection of record by the  counsel was allowed on 3.7.2002 and on subsequent occasions. On 8.7.2002,  the accused Afzal filed a petition stating therein that he was not satisfied with  the counsel appointed by the Court and that he needed the services of a senior  advocate. He named four advocates in the petition and requested the Court to  appoint one of them. On 12th July, the trial Judge recorded that the counsel  named by the accused were not willing to take up the case. Mr. Neeraj Bansal  was therefore continued especially in view of the fact that he had experience of  dealing with TADA cases. Afzal was also given the opportunity to   cross- examine the prosecution witnesses in addition to the amicus. In fact, he did  avail of that opportunity now and then.  On several occasions, there was  common cross-examination on behalf of all the accused. No indicia of apparent  prejudice, is discernible from the manner in which the case was defended.  Though the objection that he was not satisfied with his counsel was reiterated  on 12.7.02 after PW15 was cross examined, we do not think that the Court  should dislodge the counsel and go on searching for some other counsel to the  liking of the accused. The right to legal aid cannot be taken thus far. It is not  demonstrated before us as to how the case was mishandled by the advocate  appointed as amicus except pointing out stray instances pertaining to cross- examination of one or two witnesses. The very decision relied upon by the  learned counsel for the appellant, namely, Strickland Vs. Washington [466  US 668] makes it clear that judicial scrutiny of a counsel’s performance must  be careful, deferential and circumspect as the ground of ineffective assistance  could be easily raised after an adverse verdict at the trial. It was observed  therein: "Judicial scrutiny of counsel’s performance must be highly  deferential. It is all too tempting for a defendant to second-guess  counsel’s assistance after conviction or adverse sentence, and it is  all too easy for a court, examining counsel’s defence after it has  proved unsuccessful, to conclude that a particular act of omission  of counsel was unreasonable. Cf. Engle Vs. Isaac [456 US 107,  133-134] (1982). A fair assessment of attorney performance  requires that every effort be made to eliminate the distorting  effects of hindsight, to reconstruct the circumstances of counsel’s  challenged conduct, and to evaluate the conduct from counsel’s  perspective at the time. Because of the difficulties inherent in

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making the evaluation, a court must indulge in a strong  presumption that counsel’s conduct falls within the wide range of  reasonable professional assistance; \005"

       The learned senior counsel for the State Mr. Gopal Subramnium has  furnished a table indicating the cross examination of material prosecution  witnesses by the counsel Mr. Neeraj Bansal as Annexure 16 to the written  submissions. Taking an overall view of the assistance given by the Court and  the performance of the counsel, it cannot be said that the accused was denied  the facility of effective defence. (ii)    Evidence against Mohd. Afzal Now let us analyze the evidence against Afzal that is sought to be relied  upon by the prosecution. It consists of confessional statement recorded by the  DCP, Special Cell\027PW60 and the circumstantial evidence. (iii)   Confession First, we shall advert to the confession. It is in the evidence of PW80\027 Rajbir Singh (ACP), Special Cell that he took over investigation on 19.12.2001  on which date the offences under POTA were added. Then, he further  interrogated the accused Afzal on 20.12.2001 and recorded his supplementary  disclosure statement\027Ext. PW64/3. According to him, the three accused\027 Afzal, Shaukat and Gilani, expressed their desire to make confessional  statements before the Deputy Commissioner of Police. Accordingly, he apprised  the DCP, Special Cell (PW60) of this fact. PW60 directed him to produce the  accused persons at Gazetted Officers’ Mess, Alipur Road, Delhi on the next  day. First, PW80 produced Gilani before PW60 at 11.30 a.m. but he declined to  give the confessional statement. Then he produced Mohd. Afzal before the  DCP, Special Cell in the evening. The recording of the confession by PW60\027 DCP started at 7.10 pm on 21.12.2001 and ended at 10.45 pm. It is recorded  in the preamble of the confession that he had asked ACP Rajbir Singh to leave  the room and after that he warned and explained to the accused that he was  not bound to make the confessional statement and that if he did so, it can be  used against him as evidence. Thereupon, it was recorded that Afzal was not  under any duress and he was ready to give the confessional statement. The  signature of Afzal is found beneath that endorsement. There is a recital to the  effect that PW60 was satisfied that the accused was not under duress or  pressure. PW60 also deposed that the accused were ’comfortable’ in English  language and he kept on writing as they narrated their versions. He (PW60)  denied the suggestion that Afzal was not produced before him and he did not  express his willingness to make confession. The DCP(PW60) handed over a  sealed envelope containing the confessional statements to PW80\027the I.O. who  produced the accused Afzal and two others before the Addl. Chief Metropolitan   Magistrate (ACMM), Delhi on 22.12.2001 together with an application\027Ext.  PW63/1. The ACMM was examined as PW63. The ACMM stated that he opened  the sealed envelope containing Exts.PW60/9 & PW60/6 which are the  confessional statements of Afzal and Shaukat, and Ext.PW60/3 which is the  statement of Gilani and perused them. The ACMM then recorded the  statements of the accused persons. The two accused Afzal and Shaukat  confirmed having made the confessional statement without any threat or  pressure. The proceedings drawn by him is Ext.PW63/2. The accused signed  the statements confirming the confession made to the DCP. The statement of  Mohd. Afzal and his signature are marked as Exts.PW63/5 & 63/6. PW63 stated  that he made enquiries from the accused persons and none of them made any  complaint of use of force or threat at the time of recording confession. He also  deposed that he gave a warning that they were not bound to make the  statement before him. A suggestion that Mohd. Afzal did not appear before him  nor did he make the statement, was denied. The ACMM, after drawing up the  proceedings, sent the accused Afzal to police custody for a week at the  instance of I.O.\027PW80 for the reason that he was required to be taken to  certain places in Kashmir for further investigation.  We shall now give the gist of the confessional statement of Mohd. Afzal  which is Ext.PW60/9 read with Ext.PW60/7. First, he mentions about joining  JKLF, a militant outfit during the year 1989-90, receiving training in Pak  Occupied Kashmir in insurgent activities and coming back to India with arms,  his arrival in Delhi with his cousin Shaukat for studies, coming into contact with  SAR Gilani\027A3 while studying in Delhi University, surrendering before BSF in

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1993 on the advice of his family members, returning back to his native place  Sopore and doing commission agency business, coming into contact with one  Tariq of Anantanag at that time, who motivated him to join ’Jihad’ for liberation  of Kashmir and assured him of financial assistance, Tariq introducing him to  one Ghazibaba (proclaimed offender) in Kashmir who further exhorted him to  join the movement and apprised him of the mission to carry out attacks on  important institutions in India like Parliament and Embassies and asked him to  find a safe hideout for the ’Fidayeens’ in Delhi. During that meeting, he was introduced to Mohammed and Haider, Pak  nationals and militants. In the month of October, 2001, he rang up to Shaukat  and asked him to rent out accommodation for himself and Mohammed. In the  first week of November, he and Mohammed came to Delhi. Mohammed  brought with him a laptop and Rs.50,000. Shaukat took them to the pre- arranged accommodation in Christian Colony Boys’  Hostel. He revealed to  Shaukat that Mohammed was a Pak militant of Jaish-E-Mohammed and came  to Delhi to carry out a Fidayen attack. After a week, he arranged another safe  hideout at A-97, Gandhi Vihar. Mohammed collected money through ’hawala’  and gave Rs.5 lakhs to be handed over to Tariq in Srinagar. Accordingly, he  went to Srinagar and gave the money to Tariq. At the instance of Tariq, he  brought two other militants Raja and Hyder to Delhi and both were  accommodated at the hideout in Gandhi Vihar. In order to complete the task  assigned by Ghazibaba, he along with Mohammed went to the shops in old  Delhi area and purchased 60 KGs of Ammonium Nitrate, 10 KGs of Aluminum  powder, 5 KGs of Sulpher and other items in order to facilitate preparation of  explosives by Mohammed. After a week or so, Mohammed gave another 5  lakhs of rupees to be handed over to Tariq. Tariq asked him to take along with  him two other militants, Rana and Hamza. They were carrying two holdalls  which contained rifles with loaded magazines, grenade launcher, pistols, hand  grenades and shells, electric detonators and other explosives. They also stayed  in Gandhi Nagar hideout initially. After reaching Delhi, he arranged for another  accommodation at 281, Indira Vihar. Mohammed purchased mobile phones and  SIM cards from the markets and received directions from Ghazibaba from a  satellite phone. He used to meet Shaukat and Gilani and motivate them for  Jihad. Shaukat provided his motorcycle for conducting ’recce’. Meetings were  also arranged in the house of Shaukat for deciding future course of action. In  those meetings, Gilani and Shaukat’s wife Afsan also used to be present. At the  meetings, various targets such as Delhi Assembly, Parliament, UK & US  Embassy and Airport were discussed. Then, after conducting survey of all the  targets, Mohammed informed Ghazibaba that they should strike at the Indian  Parliament. A final meeting was held in the house of Shaukat in which all were  present and plans for attack on Parliament House were finalized. As per the  plan, he along with Mohammed went to Karolbagh and bought a second hand  Ambassador car on 11th December. They also purchased a magnetic VIP red  light. Mohammed got prepared a sticker of MHA and identity cards through his  laptop. Mohammed and other militants prepared IEDs with the use of  chemicals. This IED was fitted in the car for causing explosion.         On the night of 12.12.2001, he along with Shaukat and Gilani went to  the hideout in Gandhi Vihar, where all the five Pak militants were present.  Mohammed gave him the laptop and Rs.10 lakhs. He asked him to reach the  laptop to Ghazibaba and also told him that Rs.10 lakhs was meant for him and  his friends Shaukat and Gilani. Mohammed told him that they were going to  conduct a Fidayeen attack on Parliament House on 13.12.2001. They were in  touch with each other on mobile phones. On 13.12.2001, he received a call on  his mobile No. 98114-89429 from Mohammed’s phone No. 98106-93456. He  was asked to watch the TV and inform him about the presence of various  VVIPs in Parliament House. As there was no electricity, he could not watch TV  and therefore he contacted Shaukat and asked him to watch TV and convey  the information. Then Mohammed called him (Afzal) and told him that he was  going ahead with the attack on the Parliament. He then called Shaukat and  told him that the mission had started. Shaukat then came and met him at  Azadpur mandi and both went to Gilani’s house and gave him Rs.2 lakhs. Gilani  in turn asked him to give the money at his house in Kashmir. Then he and  Shaukat left for Srinagar in Shaukat’s truck. They were apprehended by the  Srinagar police on 15th. The police recovered from them laptop with the  accessories and Rs.10 lakhs. They were then brought to Delhi and at Delhi he

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got recovered explosives and other materials from the hideouts.         The crucial question that remains to be considered is whether the  confessional statement of Mohd. Afzal recorded by the DCP (PW 80) could be  safely acted upon.  Certain common contentions applicable to the confessions  of both Afzal and Shaukat were raised in an attempt to demonstrate that the  confession would not have been true and voluntary. Firstly, it is pointed out  that the alleged confession was substantially the same as the alleged  disclosure statements    (Exts. 64/1 & 64/2) which were recorded on the 16th  December itself.   Even their signatures were obtained on these disclosure  statements.  If so, when the accused were inclined to make a full-fledged  confession on the 16th December and most of the investigation relating to  hideouts and shops and the recovery of incriminating materials was over by  the next day, there was no perceptible reason why the accused should not  have been produced before a Judicial Magistrate for recording a confession  under the provisions of Cr.P.C.  The only reason, according to learned counsel  for the appellants, is that they were really not prepared to make the confession  in a Court and, therefore, the investigating authorities found the ingenuity of  adding POTA offences at that stage so as to get the confession recorded by a  Police officer according to the wishes of the investigators.  It is also submitted  that it is highly incredible that Afzal, who is a surrendered militant, and who is  alleged to have maintained close contact with hard-core terrorists, could have,  immediately after the arrest by police, developed a feeling of repentance and  come forward voluntarily to make a confession implicating himself and others  including a lady who had nothing to do with the terrorists.   Another comment  made is that the alleged meetings at Shaukat’s place to discuss and finalize the  plans to attack Parliament with persons whose advice or association had  nothing or little to do with the execution of conspiracy is a highly improbable  event.  The terrorists who came to Delhi on a Fidyaeen mission with a set  purpose could not have thought of going about here and there to evolve the  strategies and plans with persons like Gilani and Navjot (Shaukat’s wife),  risking unnecessary publicity.  It was not  a natural, probable or reasonable  conduct. It is also contended that the language and tenor of the confessional  statement gives enough indication that it was not written to the dictation of  appellants, but it was a tailor made statement of which they had no  knowledge. Though these arguments are plausible and persuasive, it is not necessary  to rest our conclusion on these probabilities. We may also refer to the contention advanced by Shri Ram Jethmalani,  learned senior counsel appearing for SAR Gilani with reference to the  confession of Afzal. Shri Jethmalani contended that Afzal in the course of his  interview with the TV and other media representatives, a day prior to recording  of a confession before the DCP, while confessing to the crime, absolved Gilani  of his complicity in the conspiracy.  A cassette (Ext.DW4/A) was produced as  the evidence of his talk.  DW-4, a reporter of Aaj Tak TV channel was  examined.  It shows that Afzal was pressurized to implicate Gilani in the  confessional statement, according to the learned counsel.  It is further  contended by Shri Jethmalani that the statement of Afzal in the course of  media interview is relevant and admissible under Section 11 of the Evidence  Act.  Learned counsel for Afzal, Shri Sushil Kumar did not sail with Shri  Jethmalani on this point, realizing the implications of admission of the  statements of Afzal before the TV and press on his culpability.  However, at  one stage he did argue that the implication of Gilani in the confessional  statement conflicts with the statement made by him to the media and  therefore the confession is not true.  We are of the view that the talk which  Afzal had with TV and press reporters admittedly in the immediate presence of  the police and while he was in police custody, should not be relied upon  irrespective of the fact whether the statement was made to a Police Officer  within the meaning of Section 162 Cr.P.C. or not.  We are not prepared to  attach any weight or credibility to the statements made in the course of such  interview pre-arranged by the police. The police officials in their over- zealousness arranged for a media interview which has evoked serious  comments from the counsel about the manner in which publicity was sought to  be given thereby. Incidentally, we may mention that PW60\027the DCP, who was  supervising the investigation, surprisingly expressed his ignorance about the  media interview.  We think that the wrong step taken by the police should not

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enure to the benefit or detriment of either the prosecution or the accused. (iv)    Procedural Safeguards\027Compliance: Now we look to the confession from other angles, especially from the  point of view of in-built procedural safeguards in Section 32 and the other  safeguards contained in Section 52. It is contended by the learned senior  counsel Mr. Gopal Subramanium that the DCP before recording the confession,  gave the statutory warning and then recorded the confession at a place away  from the police station, gave a few minutes time for reflection and only on  being satisfied that the accused Afzal volunteered to make confession in an  atmosphere free from threat or inducement that he proceeded to record the  confession to the dictation of Afzal. Therefore, it is submitted that there was  perfect compliance with sub-Sections (2)&(3). The next important step  required by sub-Section (4) was also complied with inasmuch as Afzal was  produced before the Additional Chief Metropolitan Magistrate\027PW63 on the  very next day i.e. 22.12.2001 along with the confessional statements kept in a  sealed cover. The learned Magistrate opened the cover, perused the  confessional statements, called the maker of confession into his chamber, on  being identified by PW80\027ACP and made it known to the maker that he was  not legally bound to make the confession and on getting a positive response  from him that he voluntarily made the confession without any threat or  violence, the ACMM recorded the statement to that effect and drew up  necessary proceedings vide Exts.PW63/5 and PW63/6.  It is pointed out that  the accused, having had the opportunity to protest or complain against the  behaviour of police in extracting the confession, did not say a single word  denying the factum of making the confession or any other relevant  circumstances impinging on the correctness of the confession. It is further  pointed out that Afzal and the other accused were also got medically examined  by the police and the Doctor found no traces of physical violence. It is  therefore submitted that the steps required to be taken under sub-Sections   (4)&(5) were taken. However, the learned counsel for the State could not  dispute the fact that the accused Afzal was not sent to judicial custody  thereafter, but, on the request of the I.O.\027PW80, the ACMM sent back Afzal to  police custody. Such remand was ordered by the ACMM pursuant to an  application made by PW80 that the presence of Afzal in police custody was  required for the purpose of further investigation. Thus, the last and latter part  of sub-Section (5) of Section 32 was undoubtedly breached. To get over this  difficulty, the learned counsel for the State made two alternative submissions,  both of which, in our view, cannot be sustained. Firstly, it was contended that on a proper construction of the entirety of  sub-Section (5) of Section 32, the question of sending to judicial custody would  arise only if there was any complaint of torture and the medical examination  prima facie supporting such allegation. In other words, according to the  learned counsel, the expression ’thereafter’ shall be read only in conjunction  with the latter part of sub-Section (5) beginning with ’and if there is any  complaint’ and not applicable to the earlier part. In our view, such a restrictive  interpretation of sub-Section (5) is not at all warranted either on a plain or  literal reading or by any other canon of construction including purposive  construction. The other argument raised by the learned counsel is that the  provision regarding judicial custody, cannot be read to be a mandatory  requirement so as to apply to all situations. If the Magistrate is satisfied that  the confession appears to have been made voluntarily and the person  concerned was not subjected to any torture or intimidation, he need not direct  judicial custody. Having regard to the circumstances of this case, there was  nothing wrong in sending back Afzal to police custody. This contention cannot  be sustained on deeper scrutiny. The clear words of the provision do not admit of an interpretation that  the judicial custody should be ordered by the Chief Judicial Magistrate only  when there is a complaint from the ’confession maker’ and there appears to be  unfair treatment of such person in custody. As already stated, the obligation to  send the person whose alleged confession was recorded to judicial custody is a  rule and the deviation could at best be in exceptional circumstances. In the  present case, it does not appear that the ACMM (PW63) had in mind the  requirement of Section 32(5) as to judicial custody. At any rate, the order  passed by him on 22.12.2001 on the application filed by PW80 does not reflect  his awareness of such requirement or application of mind to the propriety of

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police remand in the face of Section 32(5) of POTA. Compelling circumstances  to bypass the requirement of judicial custody are not apparent from the record. The more important violation of the procedural safeguards lies in the  breach of sub-Section (2) read with sub-Section (4) of Section 52. It is an  undisputed fact that the appellants were not apprised of the right to consult a  legal practitioner either at the time they were initially arrested or after the  POTA was brought into picture. We may recall that the POTA offences were  added on 19th December and as a consequence thereof, investigation was  taken up by PW80\027an Asst. Commissioner of Police, who is competent to  investigate the POTA offences. But, he failed to inform the persons under  arrest of their right to consult a legal practitioner, nor did he afford any facility  to them to contact the legal practitioner. The opportunity of meeting a legal  practitioner during the course of interrogation within closed doors of police  station will not arise unless a person in custody is informed of his right and a  reasonable facility of establishing contact with a lawyer is offered to him. If the  person in custody is not in a position to get the services of a legal practitioner  by himself, such person is very well entitled to seek free legal aid either by  applying to the Court through the police or the concerned Legal Services  Authority, which is a statutory body. Not that the police should, in such an  event, postpone investigation indefinitely till his request is processed, but what  is expected of the police officer is to promptly take note of such request and  initiate immediate steps to place it before the Magistrate or Legal Services  Authority so that at least at some stage of interrogation, the person in custody  would be able to establish contact with a legal practitioner. But, in the instant  case, the idea of apprising the persons arrested of their rights under sub- Section (2) and entertaining a lawyer into the precincts of the police station did  not at all figure in the mind of the investigating officer. The reason for this  refrain or crucial omission could well be perceived by the argument of the  learned senior counsel for the State that the compliance with the requirements  of Section 52(2) of POTA did not arise for the simple reason that at the time of  arrest, POTA was not applied. But this argument ignores the fact that as soon  as POTA was added and the investigation commenced thereunder, the police  officer was under a legal obligation to go through all the procedural safeguards  to the extent they could be observed or implemented at that stage. The non- invocation of POTA in the first instance cannot become a lever to deny the  safeguards envisaged by Section 52 when such safeguards could still be  extended to the arrested person. The expression ’the person arrested’ does not  exclude person initially arrested for offences other than POTA and continued  under arrest when POTA was invoked. The ’person arrested’ includes the  person whose arrest continues for the investigation of offences under POTA as  well. It is not possible to give a truncated interpretation to the expression  ’person arrested’ especially when such interpretation has the effect of denying  an arrested person the wholesome safeguards laid down in Section 52. The importance of the provision to afford the assistance of counsel even  at the stage of custodial interrogation need not be gainsaid. The requirement is  in keeping with the Miranda ruling and the philosophy underlying Articles 21,  20(3) & 22(1). This right cannot be allowed to be circumvented by subtle  ingenuities or innovative police strategies. The access to a lawyer at the stage  of interrogation serves as a sort of counterweight to the intimidating  atmosphere that surrounds the detenu and gives him certain amount of  guidance as to his rights and the obligations of the police. The lawyer’s  presence could pave the way, to some extent, to ease himself of the mental  tension and trauma. In the felicitous words of Finlay, CJ of Ireland in The  People Vs. Healy [(1990) 2 IR 73]: "The undoubted right of reasonable access to a solicitor enjoyed  by a person who is in detention must be interpreted as being  directed towards the vital function of ensuring that such a person  is aware of his rights and has the independent advice which would  be appropriate in order to permit him to reach a truly free decision  as to his attitude to interrogation or to the making of any  statement, be it exculpatory or inculpatory. The availability of  advice must, in my view, be seen as a contribution, at least,  towards some measure of equality in the position of the detained  person and his interrogators."

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       The Parliament advisedly introduced a Miranda ordained safeguard  which was substantially reiterated in Nandini Satpathy by expressly enacting  in sub-Sections (2)&(4) of Section 52 the obligation to inform the arrestee of  his right to consult a lawyer and to permit him to meet the lawyer. The  avowed object of such prescription was to introduce an element of fair and  humane approach to the prisoner in an otherwise stringent law with drastic  consequences to the accused. These provisions are not to be treated as empty  formalities. It cannot be said that the violation of these obligations under sub- Sections (2) & (4) have no relation and impact on the confession. It is too  much to expect that a person in custody in connection with POTA offences is  supposed to know the fasciculus of the provisions of POTA regarding the  confessions and the procedural safeguards available to him. The presumption  should be otherwise. The lawyer’s presence and advice, apart from providing  psychological support to the arrestee, would help him understand the  implications of making a confessional statement before the Police Officer and  also enable him to become aware of  other rights such as the right to remain  in judicial custody after being produced before the Magistrate. The very fact  that he will not be under the fetters  of police custody after he is produced  before the CJM pursuant to Section 32(4) would make him feel free to  represent to the CJM about the police conduct or the treatment meted out to  him. The haunting fear of again landing himself into police custody soon after  appearance before the CJM, would be an inhibiting factor against speaking  anything adverse to the police. That is the reason why the judicial custody  provision has been introduced in sub-Section (5) of Section 32. The same  objective seems to be at the back of sub-Section (3) of Section 164 of Cr.P.C.,  though the situation contemplated therein is somewhat different.         The breach of the obligation of another provision, namely, sub-Section  (3) of Section 52 which is modelled on D.K.Basu’s guidelines has  compounded to the difficulty in acting on the confession, Section 52(3) enjoins  that the information of arrest shall be immediately communicated by the Police  Officer to a family member or in his absence, to a relative of such person by  telegram, telephone or by any other means and this fact shall be recorded by  the Police Officer under the signature of the person arrested. PW80\027the I.O.  under POTA merely stated that "near relatives of the accused were informed  about their arrest as I learnt from the record". He was not aware whether any  record was prepared by the Police Officer arresting the accused as regards the  information given to the relatives. It is the prosecution case that Afzal’s  relative by name Mohd. Ghulam Bohra of Baramulla was informed through  phone. No witness had spoken to this effect. A perusal of the arrest memo  indicates that the name of Ghulam Bohra and his phone number are noted as  against the column ’relatives to be informed’. Afzal’s arrest memo seems to  have been attested by Gilani’s brother who according to the prosecution, was  present at the police cell. But, that does not amount to compliance with sub- Section (3) because he is neither family member nor relation, nor even known  to be a close friend. We are pointing out this lapse for the reason that if the  relations had been informed, there was every possibility of those persons  arranging a meeting with the lawyer or otherwise seeking legal advice.         Another point which has a bearing on the voluntariness of confession is  the fact that sufficient time was not given for reflection after the accused  (Afzal/Shaukat) were produced before PW60 recording the confession. He  stated in the evidence that he gave only 5 to 10 minutes time to the accused  for thinking/reflection in reply to the question by the counsel for Shaukat  Hussain. It is true as contended by the learned counsel Mr. Gopal  Subramanium that there is no hard and fast rule regarding grant of time for  reflection and the rules and guidelines applicable to a confession under Section  164 Cr.P.C. do not govern but in the present case, the time of 5 or 10 minutes  is, by all standards, utterly inadequate. Granting reasonable time for reflection  before recording a confession is one way of ensuring that the person  concerned gets the opportunity to deliberate and introspect once again when  he is brought before the prescribed authority for recording the confession.  That it is one of the relevant considerations in assessing the voluntariness of  the confession is laid down in Sarwan Singh Vs. State of Punjab [1957  SCR 953].         All these lapses and violations of procedural safeguards guaranteed in  the statute itself impel us to hold that it is not safe to act on the alleged

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confessional statement of Afzal and place reliance on this item of evidence on  which the prosecution places heavy reliance.         The learned senior counsel for the State has laid considerable stress on  the fact that the appellants did not lodge any protest or complaint; on the  other hand, they reaffirmed the factum of making confession when they were  produced before the ACMM on the next day. It is further pointed out that as  far as Afzal is concerned, it took nearly seven months for him to refute and  retract the confession. After giving anxious consideration, we are unable to  uphold this contention. The omission to challenge the confessional statement  at the earliest before the Magistrate shall be viewed in the light of violation of  procedural safeguards which we have discussed in detail earlier.         As regards the delay in retracting, the first fact to be taken note of is  that the appellant Afzal was evidently not aware of the contents of the  confessional statement on the day on which he was produced before the ACMM  because the learned Magistrate did not make it available to him for perusal nor  the gist of which was made known to him. We find nothing in the proceedings  of the ACMM to that effect. It was only after the charge sheet was filed in the  Court on 14th May and a copy thereof was served to him that he became  aware of the details of the confessional statement. Then Afzal filed a petition  before the trial Court on 2.7.2002 stating that "I have given a statement in  front of police during custody and not before the DCP or ACP as mentioned in  the charge sheet. I found that my statement has been grossly manipulated  and twisted in a different form and formation by the police, especially my  statements regarding Afsan Guru and SAR Gilani. Therefore, I am requesting  to your honour to record my statement in the Court." This was followed by  another petition filed on 15th July, the main purpose of which was to highlight  that Mr. Gilani and the other accused had no direct or indirect connection.  Thus, we cannot hold that there was abnormal delay in disowning the  confession, the effect of which would be to impart credibility to the  confessional statement.         It is then pointed out that the grounds on which the confessional  statement was refuted by Afzal, are not consistent. Whereas Afzal stated in  the petition dated 2.7.2002 as above, in the course of his examination under  Section 313, Afzal stated that he signed on blank papers. We do not think that  this so-called discrepancy will give rise to an inference that the confessional  statement was true and voluntary. We have to look to the substance of what  the accused said while refuting the statement rather than building up a case  on the basis of some inconsistencies in the defence plea. (v)     Circumstances against Afzal         We shall now consider the circumstantial evidence against Afzal  independent of and irrespective of the confession. The first circumstance is that Afzal knew who the deceased terrorists  were. He identified the dead bodies of the deceased terrorists. PW76  (Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady  Harding Medical College and he identified the five terrorists and gave their  names. Accordingly, PW76 prepared an identification memo\027Ext.PW76/1  which was signed by Afzal. In the postmortem reports pertaining to each of the  deceased terrorists, Afzal signed against the column ’identified by’. On this  aspect, the evidence of PW76 remained un-shattered. In the course of his  examination under Section 313, Afzal merely stated that he was forced to  identify by the police. There was not even a suggestion put to PW76 touching  on the genuineness of the documents relating to identification memo. It may  be recalled that all the accused, through their counsel, agreed for admission of  the postmortem reports without formal proof. Identification by a person in  custody of another does not amount to making a statement falling within the  embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of  Evidence Act as a piece of evidence relating to conduct of the accused person  in identifying the dead bodies of the terrorists. As pointed out by Chinnappa  Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person  against whom an offence is alleged, which is admissible under  Section 8 of the Evidence Act, if such conduct is influenced by any  fact in issue or relevant fact and the statement made to a Police  Officer in the course of an investigation which is hit by Section 162  Criminal Procedure Code. What is excluded by Section 162 Criminal

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Procedure Code is the statement made to a Police Officer in the  course of investigation and not the evidence relating to the conduct  of an accused person (not amounting to a statement) when  confronted or questioned by a Police Officer during the course of an  investigation. For example, the evidence of the circumstance,  simpliciter, that an accused person led a police officer and pointed  out the place where stolen articles or weapons which might have  been used in the commission of the offence were found hidden,  would be admissible as conduct, under Section 8 of the Evidence  Act, irrespective of whether any statement by the accused  contemporaneously with or antecedent to such conduct falls within  the purview of Section 27 of the EvidenceAct (vide Himachal  Pradesh Administration Vs. Om Prakash [AIR 1972 SC  975]).

The second circumstance is the frequent telephonic contacts which Afzal  had established with Mohammed. Even minutes before the attack, as many as  three calls were made by Mohammed to Afzal from his phone No. 9810693456  which was operated with the instrument having IMEI No. 35066834011740(2)  that was recovered from Mohammed’s body, as seen from Ext. PW 35/2. The  SIM Card relating thereto was also found in Mohammed’s purse.  Not only that,  there is clear evidence to the effect that the mobile instruments were being  freely exchanged between Afzal and Mohammed and other terrorists. This is  the third circumstance.         Before going into the details on these aspects, it may be noted that the  handset found in the truck in which Afzal was travelling and which he pointed  out to the police was having IMEI No. 350102209452430. It was a mobile  phone instrument of Nokia make and it was being used for the operation of  phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was  furnished by PW61 and PW62.  Its IMEI number and the cell phone number  with which it was being operated is established by the evidence of investigating  officer coupled with the call records filed by the witnesses.  It is also clear from  the call record that it was the last instrument on which the said number  \00589429 had been operated as late as 13.12.2001. The fact that the instrument bearing number \005\005\00552430 was being  carried by Afzal in the truck would give rise to a reasonable inference that the  cell-phone number with which the instrument was being operated was that of  Afzal and the said phone number was under his use.  The appellant, Afzal,  apart from denying the recovery at Srinagar\027which denial cannot be said to be  true, did not account for the custody of the phone. The said phone number  cannot be related to Shaukat who was also travelling with Afzal because  Shaukat was having his own phones which were seized from his residence on  15th December.  In the circumstances, even a presumption under Section 114  can be drawn that the number 9811489429 was at all material times being  used by the accused, Afzal. The facts  that the SIM card was not found in the mobile phone and that  the IMEI number of the instrument was not noted by PW 61 cannot be the  grounds  to disconnect Afzal  from the custody of the said phone. The IMEI   number found  on the phone  was sent to  trace the number of the cell phone. One more point has to be clarified. In the seizure memo (Ext. 61/4), the  IMEI number of Nokia phone found in the truck was noted as \005\00552432. That  means the last digit ’2’ varies from the call records wherein it was noted as  \005\00552430.  Thus, there is a seeming discrepancy as far as the last digit is  concerned.  This discrepancy stands explained by the evidence of PW 78 \026 a  computer Engineer working as Manager, Siemens.  He stated, while giving  various details of the 15 digits, that the last one digit is a spare digit and the  last digit, according to GSM specification should be transmitted by the mobile  phone as ’0’.  The witness was not cross-examined.       This mobile number ..89429 was also used in the instrument No. IMEI  449269219639010 recovered from the deceased terrorist Raja and was then  used in the handset having number 350102209452430(2) i.e. the instrument  recovered from the truck at Srinagar, as pointed out by the High Court at  paragraph 325 of the judgment. The instrument recovered from Raja was the  one used by Afzal i.e. on phone No.\00589429 between 6.11.2001 and  23.11.2001. The mobile instrument recovered from Rana (IMEI

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449269405808650) (Cell phone No.9810302438) was used by Mohammed who  in turn was using the phone of Afzal also. This was the phone that was  purchased by Afzal from PW49\027Kamal Kishore. Now, we shall proceed to give further details of the phone calls and the  instruments used, more or less in a chronological order insofar as they throw  light on the close association of Afzal with the deceased terrorists. The SIM  Cards related to the mobile phones bearing Nos. 9810693456 and 9810565284  were recovered from the purse of the deceased terrorist Mohammed. The first  call from the first number was from Mohammed to a Delhi landline number on  21.11.2001. The first call to the second number was from Bombay on  24.11.2001. It shows that these two phones were activated by Mohammed in  the third week of November, 2001 when he was in Delhi. It is established from  the call records that the second call from the Bombay number to Mohammed  was received when the said mobile number (9810565284) was being used in  the handset having IMEI No. 449269219639010(2). This is the same handset  which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3).  Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset  which was being used by Afzal which reveals the nexus between both. Evidence of the computer experts PWs 72 & 73 together with their  reports (Ext.PW73/1 & 73/2) would reveal that a file named Radhika.bmp was  created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the  name of Sanjay Sharma is found and it contains the address No.10, Christian  Colony, where Mohammed was staying and the phone No. 9811489429  (belonging to Afzal). The other I.Cards recovered from the body of the  deceased terrorist which were fake ones, were also prepared from the same  laptop as established by the testimony of PW72 and PW59. Thus, together with  the activation of phones, simultaneous activity on the laptop to create bogus  I.Cards was going on at the same time i.e. 21.11.2001 onwards. On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed  to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001.  This gap is explained by the prosecution by referring to the confessional  statement of Afzal wherein he said that towards the end of November, he  (Afzal) went to Kashmir and came back to Delhi along with two other terrorists  in the first week of December. But as the confessional statement is not taken  into account, we cannot take note of that explanation. On 5th December, 2001,  Mohammed called two Dubai numbers from his mobile phone No. 9810565284  and the call record\027Ext.PW35/4 would show that Mohammed made those calls  to Dubai by using the same handset which was being used by Afzal  for his  number 9811489429. PW49, who identified Afzal in the Court, testified to the  fact that Afzal had purchased Motorola mobile phone of model 180 from his  shop on 4.12.2001 which tallies with the description of the phone bearing the  IMEI number referred to above. The next point to be noted is that the said phone instrument bearing  IMEI No. \005\00539010 was finally recovered from the deceased terrorist Raja as  per the seizure memo (Ext.PW2/2). A perusal of the call record discloses that  the said instrument was being used by the accused Afzal (with his number  ...89429) till the noon of 12.12.2001. It shows that such interchange of phones  would not have been possible, but for the meeting of the Afzal with the slain  terrorists on 12th December. There were calls to the mobile number  9810693456 the SIM Card of which was recovered from the body of  Mohammed vide Ext.PW4/8 and which was being operated from the instrument  IMEI No. 449269405808650 (Ext.PW35/5). On 7th & 8th December, Afzal called  Mohammed seven times from his phone No. 9811489429 to Mohammed’s No.  9810693456 and the said mobile of Mohammed was being used in IMEI No.  \005808650 (Ext.PW35/5). Thus Mohammed used the same Motorola phone  (Ext.P28) which was finally recovered from the deceased Raja vide seizure  memo (Ext.PW2/2) on the SIM card (described as ’Magic Card’) for the No.  9810693456 and the said card was recovered from Mohammed vide  Ext.PW4/8.  As per the testimony of PW49, the said Ext.P28 was purchased by  Afzal.  It is pertinent to note that the said instrument was never used by Afzal  though it was purchased by him but it was being used by Mohammed and it  ultimately reached Raja. The deposition of PW44 discloses that Afzal, who was identified by him in  the Court, came to his shop on 7th or 8th December and purchased a mobile  phone of J70 model of Sony make which he identified as Ext.P-37 seized under

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Ext.PW4/14 from the body of Mohammed. Its IMEI number was  35066834011747/2 and its cell-phone number was found to be 9810511085.   This fact would only lead to the inference that contemporaneous to the crucial  incident of 13th December, Afzal met Mohammed and supplied the handset of  the mobile phone. That apart, we find the exchange of calls between them.  From the call records in Parts VI & IX, it is evident that Afzal was in touch with  Mohammed over phone on seven occasions on 7th and 8th December and they  were using the two phones with the Cell numbers referred to supra, though,  two or three calls of them were of very short duration. It may also be noticed  that a satellite phone contacted Afzal for a short-while on his number  9811489429 and the same satellite phone contacted Mohammed on his phone  No. 9810693456 on 10th December for five minutes. On 12th December,  Mohammed contacted Raja for 83 seconds and thereafter a satellite phone  contacted Mohammed for 11 minutes and the same satellite phone contacted  Raja twice for about 3= minutes. This is borne out by call records at volume  VI. The phone number of Raja was 9810510816 as discovered from the phone  instrument recovered from his body. Then we come to the crucial day i.e. 13.12.2001. Mohammed called  Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the  Parliament. This is borne out by the call records of 9810693456 and  9811489429 (phones traceable to Mohammed and Afzal, respectively). At  about the same time, there was exchange of calls between Afzal and Shaukat  on their phone numbers .\005.89429 and \005\005.73506. The call records at Part IX,  Page 20 pertaining to 9811489429\027the user of which can be traced to Afzal  and the instruments recovered would reveal that the SIM Card pertaining to  the said mobile number (\00589429) was activated on 6th November and was  used on the handset  bearing IMEI No. 449269219639010 recovered from the  deceased terrorist Raja as per Ex. PW2/2.  The call record would further show  that its user was discontinued on 29th November till 7th December, when,  again, it was put to use on 12th December.  The last call was at 12 noon.   Thereafter, the SIM Card pertaining to this number (i.e. \005.89429) was used in  the handset No. 350102209452430, which is the instrument (Ext.P84)  recovered from the truck at Srinagar, on being pointed out  by Afzal.  The  picture that emerges is this: The fact that an instrument used by Afzal (with  the phone number 9811489429) till 12.12.2001 was recovered from one of the  deceased terrorists on the date of incident, reveals that Afzal would have  necessarily met the deceased terrorist between the afternoon of 12th December  and the morning of 13th December. One point urged by Shri Sushil Kumar is that although the sanction order  authorized the interception of Phone No. \005..06722, there is no evidence  regarding the details of investigation of the calls made or received from that  number. No question was put to the witnesses on this point. It is quite  probable that the investigator would have entertained some suspicion in this  regard and would have, by way of caution sought permission to intercept. That  does not cast a cloud on the prosecution case built up on the basis of the call  records pertaining to the phones used by the accused. We can draw no adverse  inference from the fact that the details of aforementioned number was not  given. (vi)    Hideouts and recoveries The other circumstances which prominently shed light on the  involvement of the accused Afzal relate to the discovery of the abodes or  hideouts of the deceased terrorists and the recovery of various incriminating  articles therefrom as well as the identification of certain shops from where the  appellant and one or the other deceased terrorist purchased various items used  for preparation of explosives etc. These are spoken to by PW76\027Inspector Gill,  the landlords of the concerned premises and the shopkeepers. The  informations furnished to the Investigating Officers leading to the discovery of  facts and the conduct of the accused in pointing out the places where the  terrorists stayed are admissible either under Section 27 or Section 8 of the  Evidence Act and they supplement the evidence furnished by the I.Os., the  landlords and the shopkeepers. Before proceeding further, we may advert to Section 8 of the Evidence  Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an  accused person relevant, if such conduct influences or is influenced by any fact  in issue or relevant fact. It could be either previous or subsequent conduct.

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There are two Explanations to the Section, which explains the ambit of the  word ’conduct’. They are: Explanation 1 : The word ’conduct’ in this Section does not  include statements, unless those statements accompany and  explain acts other than statements, but this explanation is not to  affect the relevancy of statements under any other Section of this  Act.

Explanation 2 : When the conduct of any person is relevant,  any statement made to him or in his presence and hearing, which  affects such conduct, is relevant.

The conduct, in order to be admissible, must be such that it has close  nexus with a fact in issue or relevant fact. The Explanation 1 makes it clear  that the mere statements as distinguished from acts do not constitute ’conduct’  unless those statements "accompany and explain acts other than statements".  Such statements accompanying the acts are considered to be evidence of res  gestae. Two illustrations appended to Section 8 deserve special mention. (f)  The question is, whether A  robbed B. The facts that, after B was robbed, C said in A’s presence\027"the  police are coming to look for the man who robbed B", and that  immediately afterwards A ran away, are relevant.

(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he  absconded, or was in possession of property or the proceeds of  property acquired by the crime, or attempted to conceal things  which were or might have been used in committing it, are relevant.

We have already noticed the distinction highlighted in Prakash Chand’s  case (supra) between the conduct of an accused which is admissible under  Section 8 and the statement made to a police officer in the course of an  investigation which is hit by Section 162 Cr.P.C. The evidence of the  circumstance, simplicitor, that the accused pointed out to the police officer, the  place where stolen articles or weapons used in the commission of the offence  were hidden, would be admissible as ’conduct’ under Section 8 irrespective of  the fact whether the statement made by the accused contemporaneously with  or antecedent to such conduct, falls within the purview of  Section 27, as  pointed out in Prakash Chand’s case. In Om Prakash case (supra) [AIR  1972 SC 975], this Court held that "even apart from the admissibility of the  information under Section, the evidence of the Investigating Officer and the  Panchas that the accused had taken them to PW11 (from whom he purchased  the weapon) and pointed him out and as corroborated by PW11 himself would  be admissible under Section 8 as ’conduct’ of the accused". Coming to the details of evidence relating to hideouts and recoveries, it  is to be noted that the accused Afzal is alleged to have made a disclosure  statement to PW66\027Inspector Mohan Chand Sharma on 16th December, 2001.  It is marked as Ext.PW64/1. In the said disclosure statement, all the details of  his involvement are given and it is almost similar to the confessional statement  recorded by the DCP. The last paragraph of the statement reads thus: "I can come along and point out the places or shops of Delhi  wherefrom I along with my other associates, who had executed the  conspiracy of terrorist attack on the Parliament, had purchased the  chemicals and containers for preparing IED used in the attack, the  mobile phones, the SIM Cards and the Uniforms. I can also point  out the hideouts of the terrorists in Delhi. Moreover, I can  accompany you and point out the places at Karol Bagh wherefrom  we had purchased the motorcycle and Ambassador car. For the time  being, I have kept the said motorcycle at Lal Jyoti Apartments,  Rohini with Nazeer and I can get the same recovered. \005"

This statement has been signed by Mohd. Afzal. In fact it is not required  to be signed by virtue of the embargo in Section 162(1). The fact that the  signature of the accused Afzal was obtained on the statement does not,  however, detract from its admissibility to the extent it is relevant under  

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Section 27. We shall now consider the details of evidence on these aspects. PW76\027 I.O. deposed that the two accused persons, namely, Afzal / Shaukat led him to  the following places: (i)     Hideout at 2nd floor, A-97, Gandhi Vihar (PW34)

(ii)    Hideout at 2nd floor, 281, Indira Vihar (PW31 & PW32)

(iii)   Shop of PW40\027Anil Kumar from where Ammonium Nitrate was  purchased.

(iv)    Shop of PW42\027Ramesh Advani from where Silver powder was  purchased.

(v)     Shop of PW41\027Ajay Kumar\027Sawan Dry Fruits from where dry  fruits were purchased.

(vi)    Shop of PW43\027Sunil Kumar Gupta at Fatehpuri where Sujata  Mixer was purchased.

(vii)   Shop at Hamilton Road from where red light was purchased.

(viii)  Shop of PW29\027Gupta Auto Deals from where motorcycle  HR51E5768 was purchased.

(ix)    Shop of PW44\027Sandeep Chaudhary at Ghaffar Market from  where Sony cellphone was purchased.

(x)     Shop of PW20\027Harpal Singh at Karol Bagh from where  Ambassador Car bearing DL 3CJ 1527 was purchased.

(xi)    Shop of PW49\027Kamal Kishore from where Motorola cell phone  and a SIM card were purchased.

Now, we shall refer to the specific details of evidence in this regard.  PW76\027I.O. deposed to the fact that Afzal and Shaukat pointed out the 2nd  floor of A97, GANDHI VIHAR as the place where the deceased terrorists stayed.  This is recorded by PW76 in the memo marked as Ext.PW34/1. PW76 deposed  that on his request, the landlord of the house\027PW34 accompanied him to the  2nd floor and the lock of the house was broken and the premises searched in  the presence of PW34. The various articles recovered and seized consequent  upon the search of the premises are recorded in Ext.PW34/1. They are: (a) 3  electronic detonators (Ext.P60/1, 60/2 & 60/3). (b) two packets of silver  powder bearing the address ’Tola Ram & Sons, 141, Tilak Bazar, Delhi’  (Ext.P61). (c) A bucket (Ext.P62) of prepared explosive material. Sample of  explosive material is Ext.P63. (d) two boxes containing Sulphur (Ext.P64 &  P65). (e) two cardboard cartons (Ext.P66 & P67) containing 20 jars each of  Ammonium Nitrate of 500 grams each (Ext.P68/1 to Ext.P68/38) (one jar was  taken out from each carton as a sample). (f) Yamaha motorcycle bearing  No.DL-1S-K-3122 (Ext.P76) found at the gate of the house and seized as per  Ext.PW34/2. (g) Maps of Delhi city and Chanakyapuri area found in the room  vide Ext.P34/3. (h) Police uniforms and police beret caps (P73 series). (i)  Sujata Mixer Grinder with three jars (Ext.P72) seized as per Ext.PW34/4. PW34 confirmed this fact in his deposition. In addition, PW34 identified  Afzal and Shaukat in the Court and stated the following facts: That Afzal had introduced himself under an assumed name of Maqsood  and took the 2nd floor on rent in the first week of November, 2001. That  Shaukat and three or four boys used to visit Afzal at that premises quite often  and on the crucial day i.e. 13.12.2001, at 10 am, Afzal, Shaukat and four more  persons left in an Ambassador car and Afzal had returned a shortwhile later  and then left the premises subsequently. That the deceased terrorist  Mohammed, whose photograph he identified, was also residing with Afzal  sometime after the premises was taken on rent. The High Court accepted the testimony of PW34 including the  identification of the deceased Mohammed by photograph (Ext.PW1/20). He

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could not identify the remaining four terrorists. Next, we come to the evidence in regard to the premises at INDIRA  VIHAR and the recoveries therefrom. Mohd. Afzal, while being examined under  Section 313 Cr.P.C. admitted that the house at 281, Indira Vihar was taken on  rent by him after his return to Delhi after Eed. PW76 deposed to the fact that  Afzal and Shaukat led him and the police party to the premises at 281, Indira  Vihar as the place where Afzal and the five slain terrorists stayed. The memo  of pointing out is Ext.PW32/1. PW32, who is the landlord, stated that on 16th  December, 2001, the accused Afzal and Shaukat whom he identified correctly,  were brought to his house by the police and Afzal told the police that he was  the landlord. Thereafter, the police took him and the two accused to the 2nd  floor which was found locked and as there was no key, the police broke the  lock. PW32 then stated that on a search of the premises, a number of articles  as recorded in the memo of seizure\027Ext.PW32/1 were found. The articles  recovered as a result of search were, (i) three electric detonators attached with  a wire kept in a box, (ii) six pressure detonators fitted in a plastic box, (iii) two  silver powder packets of thousand grams each with the slips containing the  name of ’Tolaram and Sons, Tilak Bazar’, (iv) two boxes of sulphur,  (v) a  motorcycle of Yamaha make parked near the gate of the house, (vi) household  articles etc. PW 32 attested the seizure memo. The motorcycle was seized as per the seizure memo\027Ext.PW32/2. It  transpires from the evidenc eof PW53 who is an official of the Road Transport  Department read with Ext.PW53/1 that the said motorcycle was registered in  the name of Shaukat Hussain. In connection with the renting of the house at Indira Vihar, PW31 who is  a property dealer, was examined. He stated that Mohd. Afzal approached him  and on 9.12.2001 he fixed up the house of PW32 at Indira Vihar on a rent of  Rs.4000 p.m. He identified Mohd. Afzal. PW32\027the landlord confirmed in his  deposition that the 2nd floor of the house was taken on rent by Mohd. Afzal  through PW31. He further stated that he imposed a condition that the tenant  should reside with his family only. Having found some five or six other persons  on 11.12.2001, he questioned Afzal on which he replied that they were his  friends and they would leave soon and thereafter he would be bringing his  family. On 12.12.2001, Afzal left the premises locking the door informing him  that he would bring his family and children after Eed. Then he speaks to the  details of search and seizure. He was a signatory to the seizure memos  Exts.PW32/1 and PW32/2. The High Court held that the factum of Mohd. Afzal taking the premises  on tenancy, the recovery of articles and detonators on 16.12.2001 and the fact  that five or six persons were visiting the premises were found to be established  by the testimony of PWs 31 & 32. Though PW32 is supposed to have identified  the persons found with Afzal by the photographs of dead bodies of terrorists,  we do not attach any weight to this part of the evidence because the police  showed the photos and told him that they were the photographs of deceased  terrorists. He also did not take into account this part of testimony of PW32. At  this stage, we may refer to the evidence of the experts of Forensic Science  Laboratory, Chandigarh. PW22 testified in regard to the explosives contained in  I.E.D. and the car bomb which was recovered from the scene of offence on 13th  December, 2001. From his report\027Ext.PW21/1 and PW21/2, it is evident that  Ammonium Nitrate, Aluminum/Silver powder and Sulphur was found in the  explosives. The testimony of PW24 establishes that the samples of chemicals  (collected from the hideouts) were Aluminum Nitrate, Sulphur and Silver  powder. The same were found in the unused explosives. Amongst the hideouts furnishing the links of association between the  accused Afzal and the deceased terrorist Mohammed is the one in the Boys’  hostel, Christian Colony. It is in the evidence of PW38 who was running an STD  booth at Christian Colony that Afzal and Shaukat met him and made enquiries  about the availability of rented accommodation. Then on 6.11.2001 he took  him to PW37 who was running a hostel at B-41, Christian Colony. PW38  identified Afzal and Shaukat. PW37 deposed that he let out a room on the  Ground Floor and when he went to the hostel on 26th November, he found one  Kashmiri boy in the room who disclosed his name as Ruhail Ali Shah. It may be  noted that the witness identified the said Ruhail Ali Shah as the deceased  terrorist Mohammed by reference to his photograph (Ext.PW29/5) in the  presence of police and in the Court. The identity card of Ruhail Ali Shah

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(Ext.PW4/4) shown to him was also identified and it is the card that was found  at the spot of offence. PW37 also stated that he had seen Afzal and Shaukat  visiting the so called Ruhail Ali Shah. It may be noted that the said room in  Christian Colony was taken on rent at about the same time when the premises  at Gandhi Vihar was hired. The testimony of this witness was found to be  reliable by the High Court. We see no good reason to discard his evidence on  the ground that he did not produce the record of their stay. Now we turn our attention to the evidence given by the shopkeepers in  regard to the purchase of various things by the accused Afzal himself or in the  company of others. (vii)   Purchases from shops         The next circumstance which provides important links in the chain of  circumstantial evidence is that the accused Afzal led the Investigating Officer  to various places from where the incriminatory articles found in the premises at  Gandhi Vihar and Indira Vihar and at the scene of offence were purchased. Now we shall briefly refer to the evidence in regard to the purchase of  chemicals used in explosives and the Mixture-Grinder utilized for preparing the  explosive substance.  PW-76 recorded in Ex. 40/1 dated 17.12.01 that Afzal  furnished information that he had visited the shop of PW-40 along with  deceased accomplice Hamza at Tilak Bazar and purchased 50kg of ammonium  nitrate  packed in = kg. boxes and that he would show the shop.  Accordingly,  Afzal led the Police to the shop of PW-40 and identified the proprietor which  fact is relevant and admissible under Section 8 of the Evidence Act.  PW-40  identified the accused \026 Afzal, in the Court and stated that he came to his shop  on 6.12.01 to purchase ammonium nitrate and that he placed an order for  50kg, paid an advance of Rs. 800/- and came the next day to take delivery of  the same.  On 7.12.01, he came with one more person, paid the balance and  took the delivery of 50kg ammonium nitrate which was packed in = kg plastic  bags.  In view of the short time gap and the order for a large quantity, there is  no reason to doubt the identification of Mohd. Afzal \026 PW 40.  We have already  seen that ammonium nitrate was one of the chemicals recovered from the  premises at Gandhi Vihar.  PW-40 also identified the deceased Hamza by his  photograph - Ext.40/2.  According to PW-40, it is he who accompanied Afzal  the next day.  However, in the memo of pointing out which is Ext.40/1, it was  recorded that Afzal disclosed that he visited the shop with Haider. This  discrepancy or mistake in recording the name does not make a dent on the  veracity of evidence of PW-40 on the point of identification of photograph in  Ext. 40/2.  The High Court accepted the evidence of PW-40.  Then, about the  purchase of silver powder, PW-76 recorded in Ex. 42/1 that Afzal disclosed  having purchased the silver powder from the shop of PW-42.  It may be stated  that on the packets of silver powder (Ex.P/51), the name and address ’Tolaram  & Sons, 141, Tilak Bazar’ was written.  Thus, the name and address of the  shop was already known to the Police. Therefore, Section 27 cannot be pressed  into service. However, the conduct of Afzal in pointing out the shop and its  proprietor (PW42) would be relevant under Section 8 of the Evidence Act.  PW- 42 in his deposition testified to the factum of purchase of 50 kgs of silver  powder by Afzal on 11.12.01.  The witness identified the seized samples as  having been sold by him.  He also identified Afzal. He specifically stated that  the quantity purchased by him being large, Afzal’s presence was very much  there in his memory.  It may be recalled  that silver powder was recovered  from the premises at Indira Vihar.  The samples seized from Indira Vihar were  identified by PW-42.  It is to be noted that Aluminium powder was one of the  ingredients used in the IEDs found in the possession of the deceased terrorists  at the Parliament complex.  Another item of purchase was dry fruits.  Three polythene packets of dry  fruits bearing the name of ’Sawan Dry Fruits’ (Ex. P/10) and having the  address 6507, Fatehpuri Chowk were recovered at the scene of offence near  the bodies of the deceased.  PW-76 stated that Afzal led them to the shop of  Sawan Dry Fruits. PW41\027the salesman, gave evidence regarding the  transaction of sale on 11.12.01.  He identified the accused Afzal as the person  who had purchased the dry fruits.  The witness also identified the photograph  of Rana even as that of the person who accompanied Afzal. PW41 also stated  that Afzal was in the shop for nearly half an hour. The High Court, while  observing that there was nothing to discredit the evidence of PW-41, it,

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however, ignored his testimony on a tenuous ground that the Police were  already aware of the source of purchase of the dry fruits.  Though there was no  discovery within the meaning of Section 27, there is no reason why the  evidence of PW-41 should be eschewed on that account.  However, in regard to  the identification of the pfotograph of deceased terrorist, his evidence does not  inspire confidence, in view of the time lag of 8 months and the manner in  which the answer was sought to be elicited from him. Then, we have the  evidence of purchase of Sujata Mixer-Grinder (Ext.P72) which was found in the  hideout at Gandhi Vihar.  PW-76 deposed that Afzal took the investigating  team to an electrical shop at Fatehpuri from where the Mixer-Grinder was  purchased.  The memo of pointing out is Ex. 76/2.   The pointing out of the  shop and the identification of the owner of the shop wherefrom the purchase  was made are relevant facts to show the conduct of the accused referred to in  Section 8 of the Evidence Act.  In any case, the evidence of PW-43 establishes  the fact that Afzal bought the Mixer-Grinder of Sujata make on 7.12.01.  The  relevant cash memo was filed by him.  The witness identified Afzal in the Court  and also the Mixer-Grinder.  The High Court has accepted the testimony of this  witness.  Thus, the nexus between the Mixer-Grinder which was recovered  from the premises at Gandhi Vihar and the one purchased by Afzal from the  shop of PW-43 stands established by the evidence on record.  The evidence of  the report of the experts, namely PWs 22 & 24 establish, as held by the High  Court, that the composition of chemicals found sticking to the jar of the mixer  grinder and the chemicals in the bucket were of the same composition as was  the composition of the chemicals in the explosives seized from the deceased  terrorists at Parliament House. Another item of purchase was a motorcycle of the Yamaha make bearing  registration No.HR-51-E-5768. PW76 stated that on 18.12.2001 the accused  Afzal took the investigating team to Gupta Auto Deals at Karol Bagh from  where the said motorcycle was purchased and he pointed out the shop owner\027 PW29. The memo of pointing out is Ext.PW29/1. This conduct of Afzal is  relevant under Section 8 of the Evidence Act. PW29 deposed that four persons  including a lady came to his shop in the noon time to see the motorcycle. After  taking trial run, they went away and in the evening two persons came and  purchased the motorcycle for Rs.20,000/-. As already noticed, the said  motorcycle was found at A-97, Gandhi Vihar and the same was seized by the  I.O. The witness handed over the book containing the delivery receipt  (Ext.29/2 & 29/3) to the police, which were filed in the Court as PW29/2 &  PW29/3. The witness identified Afzal and Shaukat in the Court and the  deceased terrorist Mohammed from the photograph (Ext.29/5). He was  however unable to identify the lady in view of the fact that she was at a  distance. The High Court rightly took the view that in view of what was  narrated by the witness, the identification of the accused and the deceased  terrorist was quite probable. It was not a case of ’fleeting glance’. This is a  discrepancy between the seizure memo (PW29/4) dated 19.12.2001 and the  statement of PW29 under Section 161 Cr.P.C. that he handed over the papers  on 18.12.2001. This apparent contradiction was not pointed out to the witness  and no question was asked about it. The next important circumstance against  the accused Afzal is his association with Mohammed in purchasing the  Ambassador car with registration No.DL-3CJ-1527 from PW20. The fact that  the said car was used by the slain terrorists for entering the Parliament with  arms and explosives, is not in dispute. PW20 after hearing the news that the  car with the said number was used by the terrorists, he straight went to the  Parliament Street Police Station along with the copies of documents. Having  learned that his SHO was at the Parliament House, he went there and met the  SHO at the gate and passed on information to him that the car was sold by him  on 11.12.2001 to one Ashiq Hussain Khan. He identified the car, which was  lying at gate No.11, then he handed over the documents pertaining to the car  which were seized under the memo\027Ext.PW1/7. The documents were later  filed in the Court. PW20 correctly identified the accused Afzal as the person  who had come with Ashiq Hussain Khan for the purchase of car. The delivery  receipt of the car issued by Ashiq Hussain Khan is Ext.PW1/6. The delivery  receipt was signed by Afzal as a witness. The signature of Afzal on the delivery  receipt is proved by the analysis of his handwriting by the expert\027PW23. This  is apart from the testimony of PW20. In the course of examination under  Section 313 Cr.P.C., Afzal admitted that on 11.12.2001 he accompanied

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Mohammed to the shop of PW20 for purchasing a secondhand car but later he  denied it. It is also worthy to note that Afzal did not let the amicus to put a  suggestion that he had not visited the shop of PW20. PW20 deposed that he  had taken photocopy of the I.Card and a coloured photo of Ashiq Hussain  Khan, which are Exts.PW25/4 & PW20/3. PW20 further deposed that the dead  body lying at Gate No.1 was of the same person who had introduced himself as  Ashiq Hussain Khan while purchasing the car. When he was shown Ext.PW4/3  which is the I.Card in the name of Ashiq Hussain Khan recovered from the  deceased terrorist Mohammed, PW20 confirmed that it was the same I.Card  that was shown to him. The High Court held that the evidence of PW20, who  was an independent witness, was in no manner tainted and held that Afzal was  involved in the purchase of the car used by the terrorists to enter the  Parliament House. This conclusion was reached by the High Court even after  excluding the evidence of PW23, Principal Scientific Officer who confirmed that  the signatures on the delivery receipt\027Ext.PW1/6 tallied with his specimen  signatures. In this context, a contention was raised before the High Court that  in view of Section 27 of POTA, specimen signature should not have been  obtained without the permission of the Court. In reply to this contention urged  before the High Court, Mr. Gopal Subramanium, the learned senior counsel for  the State clarified that on the relevant date, when the specimen signatures of  Afzal were obtained, the investigation was not done under the POTA provisions  and de hors the provisions of POTA, there was no legal bar against obtaining  the handwriting samples. The learned counsel relied upon by the 11 Judge  Bench decision of this Court in State of Bombay Vs. Kattikalu Oghad [1962 (3)  SCR 10] in support of his contention that Article 23 of the Constitution was not  infringed by taking the specimen handwriting or signature or thumb  impressions of a person in custody. Reference has also drawn to the decision of  this Court in State of U.P. Vs. Boota Singh [(1979) 1 SCC 31]. We find  considerable force in this contention advanced by Mr. Gopal Subramanium. In  fact this aspect was not seriously debated before us. The purchase of mobile cellular phone instruments by Afzal in the shops  of PW44 and PW49, accompanied by Shaukat, is another important  circumstance that can be put against him. As already noticed, these mobile  instruments found their way to one or the other deceased terrorists and they  were being interchangeably used by Afzal, Mohammed and Rana. The evidence  of PW76 coupled with Ext.PW44/1 (pointing out memo) reveals that the  accused Afzal took the police party to shop No.26, Gaffar Market and pointed it  out as the shop from which he purchased the mobile phone handset of Sony  make. The conduct of the accused in pointing out the shop and identifying the  shop owner is relevant under Section 8 of the Evidence Act. PW44 - the shop owner identified Afzal and the mobile phone (Ext.P37)  sold to him on 7/8.12.2001. The said instrument (Ext.P37) was recovered from  the body of the deceased terrorist Mohammed vide Ext.PW4/14. He was  confronted with some discrepancy as to the exact date of purchase, which does  not appear to us to be very material. The fact that the transaction was  unaccounted is also not a ground to eschew his evidence especially when the  High Court found that his evidence was trustworthy. There is no warrant for  the further observation of the High Court that independent corroboration of his  testimony was lacking and therefore the evidence was liable to be ignored. Regarding the purchase of Motorola mobile phone (Ext.P28), PW76  deposed that on 19.12.2001, the accused Afzal led the investigating officials to  the shop of PW49 at B-10, Model Town from where the said mobile phone was  purchased. The memo of pointing out is Ext.PW49/1. The conduct of the  accused in leading the I.O. to the shop of PW49 and identifying him as the  shop owner becomes relevant under Section 8 of the Evidence Act. PW49,  while identifying Afzal and Shaukat in the Court deposed about the sale of the  phone and one SIM Card to the said persons. The said phone which was sold  by PW49 to the accused was recovered from the deceased terrorist Rana vide  Ext.PW2/2. This statement of the witness was assailed on the ground that the  SIM Card pertaining to the No. 9811489429 was stated to have been sold on  4.12.2001. However, the call records pertaining to this number show that the  phone was active since 6.11.2001. The High Court refuted this criticism by  observing thus: "\005The conclusion to which the defence has jumped is, in our  opinion, based on an assumption that when PW49 said that he sold

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a SIM card to Mohd. Afzal on 4.12.2001, this was the SIM card. In  his testimony, PW49 did not say that he sold this SIM to Mohd.  Afzal on 4.12.2001, he only said that he sold one SIM card  (without identifying it) to Mohd. Afzal on 4.12.2001. It could be  any card. The witness may have sold the particular card to Mohd.  Afzal or any other person on 6.12.2001. The witness does not  stand discredited.

In the very next sentence, the High Court however observed that in the  absence of independent corroboration of the testimony of PW49, his evidence  ought not to be taken into account. Here also, just as in the case of PW44, the  High Court fell into error in discarding the evidence on an untenable ground. It  is to be noted that the handset (Ext.P84) which was used for operating  9811489429 on the date of incident, was recovered from Afzal at Srinagar. The  call records\027Ext. PW36/3 would reveal that the said number was activated on  6.11.2001 itself and that even prior to 4th December, the SIM card was held by  the same person or persons who operated it after 4.12.2001. The SIM card  should have been necessarily sold to Afzal prior to 4.12.2001. It is contended that the test identification should have been conducted to  assure credibility to the evidence of identification of Afzal by the shopkeepers.  It is also contended that the photograph of the deceased Mohammed should  have been mixed up with the other photographs in order to impart credibility to  the version of witnesses who claimed to have seen him. We find no substance  in these contentions.         It is well settled that conducting the Test Identification Parade relates to  the stage of investigation and the omission to conduct the same will not always  affect the credibility of the witness who identifies the accused in the Court. In  Malkhansingh & Ors. Vs. State of M.P. [(2003) 5 SCC 746] B.P. Singh, J.  speaking for a three Judge Bench observed thus: "It is well settled that the substantive evidence is the evidence of  identification in Court and the test identification parade provides  corroboration to the identification of the witness in Court, if  required. However, what weight must be attached to the evidence  of identification in Court, which is not preceded by a test  identification parade, is a matter for the Courts of fact to examine.  In the instant case, the Courts below have concurrently found the  evidence of the prosecutrix to be reliable\005"

The earlier observation at paragraph 10 is also important:

"It is no doubt true that much evidentiary value cannot be  attached to the identification of the accused in court where  identifying witness is a total stranger who had just a fleeting  glimpse of the person identified or who had no particular reason to  remember the person concerned, if the identification is made for  the first time in Court."

In the present case, the accused persons themselves led the witnesses  to the concerned shops and the places and pointed out the witnesses.  Therefore, the question of holding TIP thereafter does not arise. The evidence  of the prosecution witnesses who could identify the two accused persons can  be safely relied upon for more than one reason. Firstly, the time lag between  the date of first and next meeting was not much, it was just a few days or at  the most two weeks. Secondly, there was scope for sufficient interaction so  that the identity of the accused could be retained in their memory. It was not  a case of mere ’fleeting glimpse’. For the same reasons, they could identify  Mohammed by photograph which was quite clear, though. If the step was  taken by the I.O. to have the test identification of photographs of dead bodies,  it would have given better assurance of the reliability of identification.  However, the failure to do so cannot be a ground to eschew the testimony of  the witnesses whose evidence was concurrently accepted by the trial and the  appellate Court. It is not the case of the appellant or any of the accused that  the identification by photographs is not permissible under law. (ix)    Laptop         The recovery of ’laptop’ from the truck in which Afzal and Shaukat

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travelled on being pointed out by them is a highly incriminating circumstance  against them. It is established from the evidence that the said laptop was used  for the preparation of I.Cards and the I.Cards found at the spot on the dead  bodies and the MHA sticker found on the car were those produced from the  same laptop. It admits of no doubt that the laptop, which must have been with  the deceased terrorist Mohammed and others came into the custody of Afzal  (and Shaukat) soon after the incident on 13th December and such possession  has not been accounted for.         Now let us delve into further details, excluding from consideration the  confessional statements, according to which the laptop was given to Afzal and  Shaukat by Mohammed to be handed over to Ghazibaba.         PW61\027Dy. S.P., Srinagar speaks to the recovery of the laptop in a  briefcase with attachments from the truck pursuant to the disclosure made by  Afzal and Shaukat when the truck was intercepted at Srinagar. Ext.PW61/4 is  the seizure memo. PW62\027the Head Constable, corroborates what PW61  stated. PWs 64 & 65, who are the Sub-Inspectors of Special Cell, speak to the  fact that the laptop along with the accessories was handed over to them as the  property recovered by PW61. The laptop is Ext.P83. The laptop and other  articles seized at Srinagar were deposited in the malkhana of the police station  in sealed condition as per PW66. Then it was the job of PW80\027ACP, who took  over investigation on 19th December, to have the laptop examined by experts.  The experts, namely, PW72\027a computer engineer and PW73\027Assistant  Government Examiner of Questioned Documents, Bureau of Police Research,  Hyderabad submitted their reports which are Exts.PW72/1 and PW73/1. PW79,  who was associated with PW73, was also examined by the prosecution. The  laptop contained files relating to identity cards recovered from the deceased  terrorists wherein the address was mentioned as Christian Colony or Gandhi  Vihar. PW72 testified that he took printouts from the laptop which are  Exts.PW59/1 to PW59/7 and PW72/2 to PW72/13 and these documents were  compared to the original identity cards and the MHA sticker (Ext.PW1/8). The  forensic expert\027PW59 submitted a report according to which the laptop  (PW83) was in fact used for the creation of I.Cards and the MHA sticker found  at the spot. The analysis and conclusions reached by PWs73 & 79 match with  those of PW72. Thus, two different sets of experts have come to the same  conclusion about the contents of the laptop. PW72 gave a detailed account of  various softwares that were found installed in the laptop and he gave a  chronological account. It was found that from November 2001 onwards, certain  files were copied on to the system. The system was used for crating, editing  and viewing .tmp files (most of  which are identity cards) and viewing files  stored in geo microchip. Editing of various identity cards took place close to the  date of occurrence. Some records were edited as late as 12th December. The  summary of important documents found on the laptop contains identity cards  which were similar to those recovered from the deceased terrorists, ASF video  files containing clippings of political leaders with Parliament in background shot  from TV news channels and another file containing scanned images of front  and rear view of I. Card and a .tmp file containing design of MHA sticker. The  report also reveals that the game ’wolf pack’ (sun) had registration details on  the laptop which showed the user name as ’Ashiq’\027a name which was found in  one of the identity cards shown to PW20 at the time of purchase of the car and  to the landlord of the Christian Colony Hostel. The documents found in the  laptop were the identity cards in the name of Ashiq Hussain Khan similar to  Ext.4/3, the front side scanned image of Cybertech Computer Hardware  Solution identity card in the name of Ashiq Hussain Khan\027Similar to the one  found at the spot of occurrence, the identity cards of Xansa Websity of Riyad  Ahmad which contains the address of Gandhi Vihar and the phone number of  Afzal, the identity card of Cybertech Computer Education of Ashif Mustafa, two  identity cards of Xansa Websity of  Neeraj Bakshi and Anil Kumar which were  similar to the identity cards found at the spot, two identity cards of Xansa  Websity with the name Sunil Verma and Raju Lal which were similar to the  cards found at the spot, designed sticker of Ministry of Home Affairs found and  the relative file containing the same text as was found on the sticker.         All these documents were found created and last updated between 1st  December and 12th December, one of them was on 21st  November, 2001. The  documents referred to above establish that various identity cards which were  similar to those recovered at the scene of offence were found in the laptop.

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The I. Cards that were not used were also detected. Documents found at the  spot (’Q’ series) were sent for forensic examination in order to report the  results of comparison of these documents with those found inside the laptop.  Besides, the sample originals of the MHA sticker and the sample identity cards  of Xansa Websity (’S’ series) were sent for comparison and report. The analysis  was done by PW59\027Senior Scientific Officer, CFSL. He reported that the MHA  sticker image and the images of identity cards found in the laptop match with  those found at the spot in general size, design and arrangement of characters.  As regards ’S’ series (genuine sample documents), the finding was that they  differed with the identity cards etc., found at the spot. It may be stated that  the franchisees of Xansa Websity were examined as PWs 25 and 50 and they  produced the genuine samples and also testified to the fake names and  addresses printed on the identity cards. We agree with the High Court that the  testimony of PWs 59, 72, 73 & 79 establish beyond doubt that fake documents  were created from the laptop which was evidently in the possession of the  deceased terrorists and eventually recovered from Afzal/Shaukat in Srinagar.  We find that the evidence of these witnesses could not in any way be shattered  in the cross examination. There was no cross examination of the witness\027 PW59 by Afzal. The limited cross examination on behalf of Shaukat did not  yield anything favourable to the accused. As regards PW72, most of the cross  examination was in the nature of hypothetical questions. Though there was no  suggestion of any tampering to this witness, the witness stated that there was  no evidence of replacement of the hard disk upon a perusal of the reg file.  There was no suggestion to PW72 that the documents (printouts) taken from  the laptop were not the real ones. Two different experts recorded same  conclusions without knowing the report of each other.         One point of criticism levelled by the defence counsel is that     in spite of  the fact that the laptop was deposited in the malkhana on 16.1.2002, (after it  was received back from PW72), the analysis by PW73 revealed that two of the  files were last written on 21.1.2001 and one file was last accessed and last  written on the same day. In this connection, it is to be noted that according to  the case diary, the laptop was accessed by the independent agencies at the  malkhana on 21.1.2002. It is clarified by the learned counsel for the State and  as found by the High Court, the said files being self-generating and self- written, they reflected the date of writing as 21.1.2002, as the laptop would  have been switched on by the investigating agencies on that date. While cross  examining PW73, a question was put as to how a file could be written without  it being accessed. The witness answered that the file cannot be written without  being accessed by copying it on a different storage media. The learned counsel  for the State is justified in his comment that the said answer was not a  response pertaining to system files, which are self-generating and self-written.  There was no suggestion to any witness that the date or time setting has been  modified in the instant case so as to facilitate tampering. A mountain out of  mole hill is sought to be made out by reason of the observation of PW73 that  some of the files were last written after the date of seizure and the answer  given by PW73 with reference to a general, hypothetical question.         The testimony of DW8\027computer engineer, who was examined on behalf  of the accused Gilani, does not in any way substantiate the point of criticism  about the possible tampering of laptop or nor does it make a dent on the  findings of the experts examined by the prosecution. The testimony of this  witness was not with reference to any of the files on which certain doubts were  raised. His testimony is, by and large, on hypothetical aspects and does not  relate to the authenticity of the contents of laptop as reported by the other  experts. In the light of foregoing discussion, we hold that the laptop found in the  custody of the appellants and the results of analysis thereof would amply  demonstrate that the laptop was the one used by the deceased terrorists  contemporaneous to the date of incident and it should have passed hands on  the day of the incident or the previous day. The accused carrying the same  with him soon after the incident furnishes cogent evidence pointing towards  his involvement. The circumstances detailed above clearly establish that the appellant  Afzal was associated with the deceased terrorists in almost every act done by  them in order to achieve the objective of attacking the Parliament House. He  established close contacts with the deceased terrorists, more especially,

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Mohammed. Short of participating in the actual attack, he did everything to set  in motion the diabolic mission. As is the case with most of the conspiracies,  there is and could be no direct evidence of the agreement amounting to  criminal conspiracy. However, the circumstances cumulatively considered and  weighed, would unerringly point to the collaboration of the accused Afzal with  the slain ’Fidayeen’ terrorists. The circumstances, if considered together, as it  ought to be, establish beyond reasonable doubt that Afzal was a party to the  conspiracy and had played an active part in various acts done in furtherance of  the conspiracy. These circumstances cannot be viewed in isolation and by no  standards of common sense, be regarded as innocuous acts. His conduct and  actions\027antecedent, contemporaneous and subsequent\027all point to his guilt  and are only consistent with his involvement in the conspiracy. Viewed from  another angle, the Court can draw a presumption under Section 114 of  Evidence Act having regard to the natural course of events and human conduct  that the appellant Afzal had nexus with the conspirators who were killed and  all of them together hatched the conspiracy to attack the Parliament House  and in that process to use explosives and other dangerous means. We are,  therefore, of the view that there is sufficient and satisfactory circumstantial  evidence to establish that Afzal was a partner in this conspired crime of  enormous gravity. (x)     Punishment: Identification of the appropriate provisions of POTA and IPC under which  the accused Afzal becomes liable for punishment is the next important task  before the Court. In dealing with this aspect, the first question that arises for consideration  is whether the appellant Afzal can be convicted under Section 120B of IPC read  with Section 3(1) of POTA and be punished under Section 3(2) for the offence  of criminal conspiracy to commit a ’terrorist act’ or whether he is liable to be  punished only under sub-Section(3) of Section 3 of POTA. Mr. Sushil Kumar, learned senior counsel appearing for the appellant  Afzal has contended, quite contrary to the stand taken by the other two senior  counsel, that no offence under POTA is made out in the instant case and  therefore POTA offences were not included in the beginning. He submits that  the actions of the deceased terrorists and the alleged conspirators can all be  brought within the scope of Section 121 and 121A of IPC. As the unauthorized  interception of communications and inadmissible joint disclosures were found  to be insufficient to make out the offence under Section 121, the police  thought of adding POTA after 19th December, so that the confession to the  police officer could be made the basis of conviction. We find it difficult to  appreciate this argument. The propriety by or otherwise of the action of the  investigating agency in adding POTA at a later stage is one thing; whether the  offence under POTA is made out, in addition to the offences under IPC, is a  distinct point, one shall not be mixed up with the other. As far as the non- applicability of Section 3 of POTA is concerned, the learned senior counsel  appearing for Afzal has not given any particular reason as to why the acts  done by the deceased persons did not amount to terrorist acts within the  meaning of Section 3(1) of POTA. Whether the appellant has committed the  terrorist act himself or not is a different matter but to say that POTA as a  whole does not govern the situation is to take an extreme stand unsupported  by reasoning. We shall now consider the contentions of Mr. Shanti Bhushan and Mr.  Ram Jethmalani that the conspiracy to commit a terrorist act is punishable  only under sub-Section (3) of Section 3 of POTA and Section 120B IPC will  have no application in relation to a terrorist act as defined by Section 3(1) of  POTA. Though this contention raised by the learned counsel does not really  arise for determination in the cases of the accused whom they represent in  view of the conclusions reached by us as regards their culpability, we feel that  the correctness of this contention has to be tested in so far as Afzal is  concerned. The stand taken by Mr. Gopal Subramanium is that on the commission of  overt criminal acts by the terrorists pursuant to the conspiracy hatched by  them and the accused, even the conspirators will be liable under Section  3(1)/3(2) of POTA. It is his contention that where overt acts take place or the  object of the conspiracy is achieved, then all the conspirators are liable for the  acts of each other and with the aid of Section 120B read with Section 3(2), all

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the conspirators are punishable under Section 3(2). The liability of mere  conspirators is coequal to the liability of the active conspirators according to  him. Alternatively, it is contended that on account of the perpetration of  criminal acts by the deceased terrorists pursuant to conspiracy, the appellant  is liable to be punished under Section 120B of IPC read with Section 3(1) of  POTA and the punishment applicable is the one prescribed under sub-Section  (2) of Section 3 of POTA. According to the learned counsel, sub-Section (3) of  Section 3 does not come into play in the instant case because of the overt acts  that have taken place in execution of the conspiratorial design. As far as the first contention of Mr. Gopal Subramanium is concerned,  we have already rejected his argument that on the principle of ’theory of  agency’, the conspirators will be liable for the substantive offences committed  pursuant to the conspiracy. When once the application of the theory of agency  is negatived, there is no scope to hold that the appellant, in spite of not having  done any act or thing by using the weapons and substances set out in sub- Section(1)(a), he, as a conspirator, can be brought within the sweep and  ambit of sub-Sections (1) & (2). The wording of clause (a) of Section 3(1) is  clear that it applies to those who do any acts or things by using explosive  substances etc., with the intention referred to in clause (a), but not to the  conspirators who remained in the background. We must now deal with the alternative contention of Mr. Gopal  Subramanium that Section 120B of IPC can be combined with Sections 3(1)  and 3(2) of POTA. The contention of Mr. Shanti Bhushan and Mr. Ram Jethmalani is straight  and simple. POTA is a special law dealing with terrorist activities and providing  for punishment therefor. Conspiring to commit a terrorist act, among other  things, is specifically brought within the fold of sub-Section (3) and is clearly  covered by that sub-Section. Therefore, the learned counsel submit that the  punishment as prescribed by sub-Section (3) alone could be applied even if  the appellant is held guilty of the offence of conspiring to do a terrorist act  with others. The question whether the conspiracy resulted in the commission  of offences in order to achieve the objective of the conspirators is immaterial  according to the concerned counsel. As a corollary to this argument, it is  contended that Section 120B IPC, which is contained in the general law of  crimes, cannot be brought into the picture so as to attract higher punishment  especially in view of Section 56 of POTA, which gives overriding effect to the  provisions of POTA. The learned counsel therefore submits that the maximum  punishment that can be imposed is life imprisonment as per Section 3(3) of  POTA. The relevant part of Section 120B reads as follows: "120B. Punishment of criminal conspiracy.\027(1) Whoever is a  party to a criminal conspiracy to commit an offence punishable  with death, (imprisonment for life) or rigorous imprisonment for a  term of two years or upwards, shall, where no express provision is  made in this Code for the punishment of such a conspiracy, be  punished in the same manner as if he had abetted such offence.

Thus a party to criminal conspiracy shall be punished in the same manner as if  he had abetted the relevant offence i.e. an offence punishable with death,  imprisonment for life etc. Mr. Gopal Subramanium then referred to the  definition of ’offence’ in Section 40 of IPC which in the context of Chapter VA  (of which Sections 120A & 120B form part) denotes a thing punishable under  the Code or under any special or local law. A special law is defined to mean a  law applicable to a particular subject. POTA is one such law. Then he had  taken us through Section 2(1)(i) of POTA. Sections 2(n) and 2(y) of Cr.P.C.  that submit that Section 120B embraces within its fold the offences under any  special law and that Section 120B can be related to the offence under Section  3(1) of POTA. According to the learned counsel, Section 120B should be  applied wholly or in part pursuant to the conspiracy, if the criminal acts in the  nature of terrorist acts take place. According to the learned counsel, the  conspiracy contemplated by Section 3(3) of POTA should be confined only to  situations where no overt acts in the direction of commission of planned  offence takes place. The final question is about the sentence\027whether the capital

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punishment awarded by the trial Court and the High Court is justified? The  endeavor of the learned counsel for the State to invoke the punishment under  Section 3(2) of POTA through the media of Section 120B is in our opinion a  futile exercise. The argument of the learned counsel proceeds on the basis that  the punishment provided in the abetment provisions of IPC, that is to say,  Section 109, will be attracted. This argument is built up on the basis of the  phraseology of the concluding clause of Section 120B which says\027"be  punished in the same manner as if he had abetted such offence". Let us take it  that the word ’offence’ in Section 120B includes the offence under special law,  namely POTA. Then, if the offence under Section 3(1) of the POTA is abetted,  what is the punishment that is attracted is the point to be considered.  Undoubtedly, it is Section 3(3) of POTA which says: "whoever ’conspires’\005or\005  ’abets’ a terrorist act shall be punishable with imprisonment which shall not be  less than five years but which may extend to imprisonment for life". Taking  resort to the abetment provisions in the IPC in order to locate the punishment  for conspiracy to commit terrorist act would be wholly inappropriate when the  abetment of the terrorist act is made punishable under Section 3(3) of POTA  itself which prescribes the minimum and maximum punishment. In other  words, invocation of Section 109 IPC is wholly unwarranted when POTA itself  prescribes the punishment for conspiracy as well as abetment in a single sub- section. Therefore, even if Section 120B is applied, it does not make any  different as regards the quantum of punishment. In either case i.e. whether  Section 120B IPC is applied or Section 3(3) of POTA is applied, the maximum  sentence is life imprisonment but not death sentence. This is apart from the  question whether Section 120B IPC can at all be projected into Section 3 of  POTA when there is specific provision in the very same Section for the offence  of conspiring to commit a terrorist act and other allied offences. The  contention that it would not have been the intention of the Parliament to visit  conspiracies involving terrorist acts with less severe punishment than what  could be inflicted under Section 120B does not appeal to us. The other  argument addressed that having regard to the setting and associated words  such as ’advices’, ’advocates’ etc., the conspiracies of lesser magnitude, that is  to say, those which were not put into action will only be covered by sub- Section (3), does not also appeal to us. There is no set pattern in which the  various expressions are used in sub-Section (3) of Section 3. More serious acts  as well as less serious acts involving various degrees of criminality related to  terrorist acts are all encompassed in Section 3(3). They need not be uniformity  in the matter of punishment in respect of all these prohibited acts. The range  of punishment varies from five years to life imprisonment and depending upon  the gravity of the offence, appropriate punishment could be given. We are also not impressed by the finding of the High Court that "by  reason of the words ’or thing’ occurring in Section 3(1) (as a part of the clause  ’does any act or thing’ by using bombs, dynamite or other explosive  substances or firearms etc"), the definition of a terrorist act need not be  restricted to a physical act of using explosives etc. The High Court observed  that the actions of Afzal in procuring explosives and chemicals and  "participating in the preparation of explosives would be action amounting to  doing of a thing using explosives", cannot be supported on any principle of  interpretation. Moreover, it rests on a finding that the accused Afzal and  Shaukat participated in the preparation of explosives for which there is no  evidentiary support. Even their confession (which is now eschewed from  consideration) does not say that. The net result of the above discussion is that the conspiracy to commit  terrorist acts attracts punishment under sub-Section (3) of Section 3. The  accused Afzal who is found to be a party to the conspiracy is therefore liable to  be punished under that provision. Having regard to the nature, potential and  magnitude of the conspiracy with all the attendant consequences and the  disastrous events that followed, the maximum sentence of life imprisonment is  the appropriate punishment to be given to Mohd. Afzal under Section 3(3) of  POTA for conspiring to commit the terrorist act. Accordingly, we convict and  sentence him. The conviction under Section 3(2) of POTA is set aside. The conviction  under Section 3(5) of POTA is also set aside because there is no evidence that  he is a member of a terrorist gang or a terrorist organization, once the  confessional statement is excluded. Incidentally, we may mention that even

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going by confessional statement, it is doubtful whether the membership of a  terrorist gang or organization is established. We shall then consider whether the conviction of Afzal under Section  120B read with Section 302 IPC is justified. The High Court upheld the  conviction and gave death sentence to the two appellants under this Section.  We are of the view that the conviction and sentence on this count is in  accordance with law. The conspiracy has many dimensions here. It is implicit  in the conspiracy to attack the Parliament that it extends to all the offensive  acts intimately associated with that illegal objective.  Indulgence in terrorist  acts, killing and injuring persons who are most likely to resist the attackers,  using explosive devices, firearms and other dangerous things in the course of  attack, ’waging war’ against the Government of the country are all various  manifestations of the conspiracy hatched by the deceased terrorists in  combination with the appellant Afzal. The mere fact that no particular person  is the target of attack of the conspirators, does not make any difference in  regard to the applicability of Section 300 IPC. The intention to cause death or  the intention of causing bodily injury as would in all probability cause death is  writ large in the conspiracy directed towards the indiscriminate attack on the  Parliament of the nation when it is in session. The opening clause of Section  300 says that "except in the cases hereinafter excepted, culpable homicide is  murder, if the act by which the death is caused is done with the intention of  causing death". Clause fourthly says: "if the person committing the act knows  that it is so imminently dangerous that it must, in all probability, cause death  or such bodily injury as is likely to cause death, and commits such act without  any excuse for incurring the risk of causing death or such injury as aforesaid"  (vide clause fourthly). These clauses squarely apply to the case on hand.  Illustration (d) to Section 300 is instructive. It reads thus: (d)     A without any excuse fires a loaded cannon into a  crowd of persons and kills one of them. A is guilty of  murder, although he may not have had a  premeditated design to kill any particular individual.

The conspiracy to commit the offence of murder in the course of execution of  conspiracy is well within the scope of conspiracy to which the accused Afzal  was a party. Therefore, he is liable to be punished under Section 120B read  with Section 302 IPC. The punishment applicable is the one prescribed under  Section 109 IPC in view of the phraseology of Section 120B\027"be punished in  the same manner as if he had abetted such offence". Section 109 IPC lays  down that "if the act abetted is committed in consequence of the abetment,  and no express provision is made by this Code for the punishment of such  abetment, a person abetting the offence shall be punished with the  punishment provided for the offence." Thus the conspirator, even though he  may not have indulged in the actual criminal operations to execute the  conspiracy, becomes liable for the punishment prescribed under Section 302  IPC. Either death sentence or imprisonment for life is the punishment  prescribed under Section 302 IPC. In the instant case, there can be no doubt that the most appropriate  punishment is death sentence. That is what has been awarded by the trial  Court and the High Court. The present case, which has no parallel in the  history of Indian Republic, presents us in crystal clear terms, a spectacle of  rarest of rare cases.  The very idea of attacking and overpowering a sovereign  democratic institution by using powerful arms and explosives and imperiling  the safety of a multitude of peoples’ representatives, constitutional  functionaries and officials of Government of India and engaging into a combat  with security forces is a terrorist act of gravest severity. It is a classic example  of rarest of rare cases. The gravity of the crime conceived by the conspirators with the potential  of causing enormous casualties and dislocating the functioning of the  Government as well as disrupting normal life of the people of India is some  thing which cannot be described in words. The incident, which resulted in  heavy casualties, had shaken the entire nation and the collective conscience of  the society will only be satisfied if the capital punishment is awarded to the  offender. The challenge to the unity, integrity and sovereignty of India by  these acts of terrorists and conspirators, can only be compensated by giving  the maximum punishment to the person who is proved to be the conspirator in

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this treacherous act. The appellant, who is a surrendered militant and who was  bent upon repeating the acts of treason against the nation, is a menace to the  society and his life should become extinct. Accordingly, we uphold the death  sentence. Before we go to the next provision under which the appellant is liable to  be convicted, we shall deal with the contention of Mr. Shanti Bhushan,  appearing for the appellant Shaukat, which becomes relevant in the case of  Afzal. His arguments run as follows: The acts committed by the deceased terrorists causing death of several  security personnel by using firearms and explosives in order to gain entry into  the Parliament House fall within the definition of ’terrorist act’ punishable  under Section 3(2) of POTA. If POTA had not been there, the offence  committed by them would have been the offence of murder punishable under  Section 120B read with Section 302 IPC. In view of the overriding provision  contained in Section 56 of POTA, the conspiracy to commit terrorist act is  punishable only under Section 3(3) of POTA. Merely because the same criminal  acts also fall within the definition of murder, the accused cannot be convicted  of conspiracy to commit murder under Section 120B read with Section 302 IPC  in addition to Section 3(3) of POTA. The accused cannot be punished for the  offence of conspiracy to cause death when he is liable to be punished for the  same act of causing death under the General Penal Law. It is only the  punishment provided by the appropriate provision in the special law that can  be imposed on the conspirator. That provision being Section 3(3) and it  provides for the maximum sentence of life imprisonment, death sentence  cannot be given. The learned counsel, apart from placing reliance on Section 56 of POTA,  has also drawn our attention to Section 26 of General Clauses Act and Section  71 of IPC. His contention, though plausible it is, has no legal basis. We do not  think that there is anything in Section 56 of POTA which supports his  contention. That provision only ensures that the conspiracy to commit the  terrorist act shall be punishable under POTA. As the appellant is being  punished under that Section, irrespective of the liability to be punished under  the other laws, Section 56 ceases to play its role. Then, we shall turn to  Section 26 of the General Clauses Act, which lays down: Where an act or omission constitutes an offence under two or  more enactments, then the offender shall be liable to be  prosecuted and punished under either or any of those enactments,  but shall not be liable to be punished twice for the same offence.

It becomes at once clear that the emphasis is on the words ’same offence’. It  is now well settled that where there are two distinct offences made up of  different ingredients, the bar under Section 26 of the General Clauses Act or  for that matter, the embargo under Article 20 of the Constitution, has no  application, though the offences may have some overlapping features. The  crucial requirement of either Article 20 of the Constitution or Section 26 of the  General Clauses Act is that the offences are the same or identical in all  respects. It was clarified in State of Bihar Vs. Murad Ali Khan [(1988) 4  SCC 655]. "Though Section 26 in its opening words refers to ’the act or  omission constituting an offence under two or more enactments’,  the emphasis is not on the facts alleged in the two complaints but  rather on the ingredients which constitute the two offences with  which a person is charged. This is made clear by the concluding  portion of the section which refers to ’shall not be liable to be  punished twice for the same offence’. If the offences are not the  same but are distinct, the ban imposed by this provision also  cannot be invoked\005 The same set of facts, in conceivable cases,  can constitute offences under two different laws. An act or an  omission can amount to and constitute an offence under the IPC  and at the same time constitute an offence under any other law.  The same set of facts, in conceivable cases, can constitute  offences under two different laws. An act or an omission can  amount to and constitute an offence under the IPC and at the  same time constitute an offence under any other law."

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We accept the argument of the learned counsel for the State Mr. Gopal  Subramanium that offences under Section 302 IPC, Section 3(2) and Section  3(3) of POTA are all distinct offences and a person can be charged, tried,  convicted and punished for each of them severally. The analysis of these  provisions show that the ingredients of these offences are substantially  different and that an offence falling within the ambit of Section 3(1) may not  be squarely covered by the offence under Section 300 IPC. The same set of  facts may constitute different offences. The case of State of M.P. Vs.  Veereshwar Rao Agnihotri [1957 SCR 868] is illustrative of this principle.  In that case, it was held that the offence of criminal misconduct punishable  under Section 5(2) of the Prevention of Corruption Act is not identical in  essence, import and content with an offence under Section 409 IPC. The bar to  the punishment of the offender twice over for the same offence would arise  only where the ingredients of both the offences are the same.         Section 71 of IPC does not in any way advance the contention of the  appellant’s counsel. The relevant part of Section 71 IPC reads: Where anything is an offence falling within two or more separate  definitions of any law in force for the time being by which offences  are defined or punished, \005                    \005                    \005            \005

the offender shall not be punished with a more severe punishment  than the court which tries him could award for any one of such  offences.

The argument based on Section 71 IPC is no different from the argument  advanced with reference to Section 26 of the General Clauses Act. For the  same reasons, we reject this argument. The case of Zaverbhai Vs. State of  Bombay [AIR 1954 SC 752] does not lay down any different principle. In  fact that case is concerned with question of repugnancy of the State and  Central laws.         The next question we have to answer is whether the conviction of the  appellant Mohd. Afzal under Sections 121 and 121A can be sustained. This  raises the question whether the acts of the deceased terrorists amount to  waging or abetting or attempting to wage war punishable under Section 121  IPC and Mohd. Afzal, being a party to conspiracy to attack the Parliament  House, is punishable either under Section 121 or under Section 121A or both.  To answer this question, we have to explore the concept and nuances of the  expression ’waging war’ employed in Section 121. (xi)    Waging War         In interpreting  the expression  ’waging war’,  the Indian cases of pre- independence days,  though few they are, by and large cited with  approval the  18th and 19th  century English authorities.  The term  ’wages  war’ was  considered to be a substitute for ’levying war’ in the English Statute of High  Treason of 1351 i.e Statute 25, Edward III, c.2.  In the famous book of Sir  James F. Stephen \026 "A History of the Criminal Law of England" (1883  publication), it was noted that the  principal heads of treason as  ascertained  by that Statute  were: (1) ’imagining’? the King’s death" (2) levying war and  (3) adhering  to the King’s enemies.   The speech of  Lord Mansfield, CJ addressed to the Jury in Lord George  Gordon’s case (1781)  is  often quoted to unfold the meaning of the expression  ’levying war against the King’.  To quote the words of Mansfield, C.J.: "There are two kinds of levying war: one against the person of the   King: to imprison, to dethrone, or to kill him;  or to make him  change measures,  or remove counsellors : the other, which is said  to be levied  against the majesty of the King or, in other words,  against him in his regal capacity; as  when a multitude rise and  assemble to  attain by  force and violence any object of a  general   public  nature;  that  is    levying  war against the  majesty of the  King;  and most  reasonably so held,  because it tends to dissolve  all the bonds of society,   to destroy property, and  to overturn  Government ;  and by force of  arms, to restrain the  King from  reigning, according to law".   

"No amount of violence, however great, and with  whatever

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circumstances of a warlike kind it may be attended, will make an  attack by one subject  on another high treason.  On the other  hand, any amount of  violence, however insignificant, directed   against the King will be  high treason, and as soon as violence   has any political objects, it is impossible to  say that it is not  directed against the  king, in the sense of being armed opposition  to the lawful exercise of his power".

               The learned Chief Justice then referred to the observations of Lord  Holt, C. J. in a case reported in Holt’s reports (1688-1700) at 681-682: "Holt L. C.J. in Sir John Friend’s case says, ’if persons do assemble  themselves and act with force in opposition to some law which  they think inconvenient, and  hope thereby to get it repealed, this  is a  levying  war and treason".  "I tell you the joint opinion  of us  all, that, if this multitude assembled with intent,  by acts or force  and violence, to compel the legislature to repeal a law, it is high   treason"\005\005..The question  always is, whether the intent is, by  force and violence, to attain an object of a general and public  nature, by any  instruments; or by dint of their numbers".   

               In 1820 Lord  President Hope in his summing up speech to the jury  in  Rex Vs. Andrew Hardie, (1820, 1 State Trials N.S., 610) explained the  distinction between levying a war and committing a riot in the following words: "Gentlemen, it may be  useful to say a few words on the  distinction between levying war against the King and committing a  riot.  The distinction seems to  consist  in this, although  they may    often run  very  nearly into each other.  Where the rising or tumult  is  merely to accomplish some private purpose, interesting only  to  those engaged in it, and not resisting or calling in question the  King’s  authority or prerogative then the tumult, however  numerous or outrageous the mob may be, is held only to be a riot.   For example, suppose a mob to rise, and even by force of arms to  break into a particular prison and rescue certain persons therein  confined, or to oblige the  Magistrates   to set them  at liberty or  to lower  the  price  of provisions in a certain market, or to tear  down  certain enclosures, which they conceive to encroach on the  town’s  commons.  All such acts,  though severely  punishable,  and though they may be resisted by force, do not  amount to  treason.  Nothing  is pointed against either the person or authority  of the King".  

"But, gentlemen, wherever the  rising or insurrection has for its  object a general purpose, not confined to  the peculiar views and  interests of the persons concerned in it, but common to the whole  community,  and striking directly the King’s authority or  that of   Parliament, then it assumes the character of treason.  For  example,  if mobs were to rise in different parts of  the country to  throw open all  enclosures and to resist  the execution of the law  regarding  enclosures wheresoever attempted, to pull down all  prisons or Courts  of justice, to resist all revenue officers in the  collecting of all or any of the taxes; in short,  all risings to   accomplish a general purpose,  or to hinder a general  measure,  which by law can only be authorized or  prohibited by authority of  the King or Parliament,  amount to levying of war against the King  and have always been tried and punished as treason.  It is,  therefore, not the numbers concerned, nor the  force  employed  by the  people rising in arms, but the object which they have in  view that determines the character of the crime, and will make it  either riot or treason,  according as that  object is of a public and  general, or private and local nature".

       Then in 1839, Tindal, C. J. while summing up the Jury in the trial of John  Frost in the year 1839 [All ER Reprint 1835-1842 P.106 at    P.117] stated that  it was "essential to the making out of the charge of high treason by levying  war, there must be an insurrection, there must be force accompanying that

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insurrection; and it must be for the accomplishment of an object of a general  nature".          The following statement of law by Sir Michael Foster is instructive: "There is a difference between those insurrections which have  carried the appearance of an army formed under leaders, and  provided with military weapons, and with  drums, colours etc., and  those other disorderly tumultous assemblies which have been  drawn together and conducted to purposes manifestly unlawful,  but without any of the ordinary shew and  apparatus of war before  mentioned." "I  do not think any great stress can be laid on that  distinction.  It is true, that in case of levying war the indictments  generally charge, that the defendants were armed and arrayed in  a warlike manner; and, where the case would admit of it, the  other circumstances of swords, guns, drums, colours, etc., have  been added.  But I think the merits of the case have never turned  singly on any of these circumstances".

We find  copious reference to these English authorities  in the Judgments  of  various High Courts which we will be referring to a  little later and in the  ’Law of Crimes’ authored by Ratanlal and  Dhirajlal (25th Edition).  In fact,   they were referred to  in extenso by this Court in Nazir Khan Vs.  State of  Delhi [(2003) 8 SCC page 461].         Whether this exposition of law on the subject of levying war continues to  be relevant in the present day and in the context of great     socio-political  developments that have taken place is a moot point.  Our comments may be  found a little later.   Coming to the Indian decisions, the earliest case in which the conviction  under section 121 and 121A IPC was sustained is the decision of a Division  Bench of Madras High Court in AIR 1922 Mad. 126.  The accused was seen in a  crowd of people which attacked the police and military forces with deadly  weapons,  when the forces under the supervision  of the District Magistrate  started searching for war-knives.   The mob retreated after the police opened  fire and the accused who was arrested  told the mob to disperse.  The accused  earlier exhorted the people who attended a meeting to subvert the British Raj  and establish the Khilafat Govt. and to destroy the  Govt. properties.  The High  Court agreeing with the District Judge found him guilty under section 121, IPC  while observing thus : "We have then that the accused was taking part in an organized  armed attack on the constituted authorities, that attack having for  its object, in the words of his own speech, the subversion of  British Raj and the establishment of another Government.  That  being so, we concur without hesitation in the lower Court’s  conclusion that the accused was guilty of the offence of waging  war against the King."  

       The next case which is an oft-quoted authority is the decision of a  special Bench of Rangoon High Court  in AIR 1931 Rang 235, Page CJ speaking  for the special Bench prefaced his discussion with the statement that the  words "waging war in Section 121 are synonymous with ’levying war’ in the  Statute 25, Edward 3, clause 2 which offence is declared to be treason.  After  referring to the observations of Mansfield, CJ, Lord President Hope,  Tindal, CJ  and the commentaries of Sir Michael Foster, the High Court concluded thus :   "The natural and reasonable inference to be drawn  from the conduct and acts  of insurgence was that they intended to overcome and destroy the forces of  the Crown at all events and regardless of any pretended grievance in  connection with capitation tax."  The learned Judges referred to the incidents  that took place in the course of preparing for an encounter with the forces of  the Crown and observed that they were consistent only with an intention on  the part of the insurgents to wage war against the King Emperor.  The raiding  of headmen’s houses for guns and ammunition, the looting of stores, the  drilling of the rank and file, the supply of dahs and spears and uniforms to the  combatants, the enforced tattooing of certain reluctant villagers "all point to an  intention to wage war and nothing else". It was then observed that : "a deliberate and organized attack upon the Crown forces such as

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that which took place on 7th January clearly would amount to a  waging of war if the object of the insurgents was by armed force  and violence to overcome the servants of the Crown and thereby to  prevent the general collection of the capitation tax".

The incident was described as a battle which was the result of a rebellion.   Those who were parties to it were held guilty of waging war within Section 121  IPC.    In the case of Maganlal Radhakrishan [AIR 1946 Nagpur 173]  there was an elaborate discussion on the scope of Section 121 with reference  to the old English cases on the subject of ’levying-war’ and high treason.   Certain decisions of Indian Courts e.g., AIR 1931 Rangoon 235 were also  referred to and the following principles were culled out : (i)     No specific number of persons is necessary to constitute  an offence under S.121, Penal Code.

(ii)    The number concerned and the manner in which theyare  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 forceand  violence an object of a general public nature, thereby  striking directly against the King’s authority.

(v)     There is no distinction between principal and accessory  and all who take part in the unlawful act incur the same  guilt."

       The accused in that case was found to have connections with Hindustan  Red Army and to have designs for the elimination of the existing  Government.  Arms and explosives were found concealed in his house.     He  was found involved in the destruction of Police Station and shooting of a  police constable.  The learned Judges felt that the raid on the Maudha Station  House was part of the design ’to attain by force and violence an object of a  general public nature"\027the test laid down by Mansfield, CJ.  The Nagpur High  Court concluded that all this was a pre-determined plan for the overthrow of  Government at a time when it was involved in a world-wide conflict.  The  conviction of Maganlal under section 121 was thus upheld.   The decision of a Division Bench of Patna High Court in AIR 1951  Patna 60 (Mir Hasan Khan  vs. the State) is illustrative of what acts do  not constitute waging of war.  That was a case in which there was a mutiny  among certain sections of the Police forces on  account of the indignation  aroused by the punishment given to one of their colleagues.  The conviction  under section 121, IPC was mainly based on the fact that the accused were  among those who took possession of the armory and also took part in the  resistance which was put up to the troops.  The conviction was set aside and  the following pertinent observations were made by Shearer, J. "The expression "waging war"  means  & can, I think, only mean  "waging war in the manner usual in war".  In other words, in   order to support a conviction on such a charge,  it is not enough  to show that the persons  charged have contrived to obtain  possession of an armoury & have,  when called upon to surrender  it, used the rifles & ammunition so  obtained against the King’s  troops.  It must  also be shown that the seizure of the armoury   was part & parcel of a planned operation & that  their intention in  resisting the troops of the King  was to overwhelm & defeat  these  troops & then to go on & crush  any  further  opposition with  which  they might meet until either  the  leaders of the movement  succeeded in obtaining possession of the machinery of Govt. or  until those in possession of it yielded to the demands of their  leaders".   

Support was drawn from the Digest of  Criminal Law by Sir James

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Stephens.  In the Digest, one of the meanings given to the expression to  levy-war is : "attacking in the manner usual in war the King himself or his  military forces, acting as such by his orders, in the execution of their duty."   It was concluded "it is, I think, quite impossible to say that any of these  appellants waged-war in the sense in which that expression, as it occurs in  Section 121, Penal Code, was used".  "The appellants or some of them were  in possession of the armory at Gaya for several days and it is perfectly clear  that they never intended to use it as a base for further operations". The next question is whether the dare devil and   horrendous acts  perpetrated by the slain terrorists pursuant to the conspiracy, amount to  waging or attempting to wage war punishable under Section 121 IPC and  whether the conspirators are liable to be punished under Section 121 or 121A  or both. Section 121 and 121A occur in the Chapter ’Offences against the State’.  The public peace is disturbed and the normal channels of Government are  disrupted by such offences which are aimed at subverting the authority of the  Government or paralyzing the constitutional machinery. The expression ’war’  preceded by the verb ’wages’ admits of many shades of meaning and defies a  definition with exactitude though it appeared to be an unambiguous  phraseology to the Indian Law Commissioners who examined the draft Penal  Code in 1847.  The Law Commissioners observed: "We conceive the term ’wages war against the Government’  naturally to import a person arraying himself in defiance of the  Government in like manner and by like means as a foreign enemy  would do, and it seems to us, we presume it did to the authors of  the Code that any definition of the term so unambiguous would be  superfluous."

The expression ’Government of India’ was substituted for the expression  ’Queen’ by the Adaptation of Laws Order of 1950. Section 121 now reads\027 "Whoever wages war against the Government of India or attempts to wage  such war, or abets the waging of such war, shall be punished with death or  imprisonment for life and shall also be liable to fine". The conspiracy to commit offences punishable under Section 121  attracts punishment under Section 121A and the maximum sentence could be  imprisonment for life. The other limb of Section 121A is the conspiracy to  overawe by means of criminal force or the show of criminal force, the Central  Government or any State Government.   The explanation  to Section 121-A  clarifies that  it is not necessary that any act or illegal omission should take  place pursuant to the conspiracy, in order to constitute the said offence. War, terrorism and violent acts to overawe the established Government  have many things in common. It is not too easy to distinguish them, but one  thing is certain, the concept of war imbedded in Section 121 is not to be  understood in international law sense of inter-country war involving military  operations by and between two or more hostile countries.  Section 121 is not  meant to punish  prisoners of war of a belligerent nation. Apart from the  legislative history of the provision and the understanding of the expression by  various High Courts during the pre-independence days, the Illustration to  Section 121 itself makes it clear that ’war’ contemplated by Section 121 is not  conventional warfare between two nations. Organizing or joining an  insurrection against the Government of India is also a form of war.  ’Insurrection’ as defined in dictionaries and as commonly understood connotes  a violent uprising by a group directed against the Government in power or the  civil authorities. "Rebellion, revolution and civil war are progressive stages in  the development of civil unrest the most rudimentary form of which is  ’insurrection’\027vide Pan American World Air Inc. Vs. Actna Cas & Sur Co.  [505, F.R. 2d, 989 at P. 1017]. An act of insurgency is different from  belligerency.  It needs to be clarified that insurrection is only illustrative of the  expression ’war’ and it is seen from the old English authorities referred to  supra  that it would cover situations analogous to insurrection if they tend to  undermine the authority of the Ruler or Government.   It has been aptly said by Sir J.F. Stephen "unlawful assemblies, riots,  insurrections, rebellions, levying of war are offences which run into each other  and not capable of being marked off by perfectly definite boundaries. All of  them have in common one feature, namely, that the normal tranquility of a

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civilized society is, in each of the cases mentioned, disturbed either by actual  force or at least by the show and threat of it".  To this list has to be added ’terrorist acts’ which are so conspicuous now- a-days. Though every terrorist act does not amount to waging war, certain  terrorist acts can also constitute the offence of waging war and there is no  dichotomy between the two. Terrorist acts can manifest themselves into acts  of war.  According to the learned Senior Counsel for the State, terrorist acts  prompted by an intention to strike at the sovereign authority of the  State/Government, tantamount to waging war irrespective of the number  involved or the force employed.           It is seen that the first limb of Section 3(1) of POTA\027 "with intent to  threaten the unity, integrity, security or sovereignty of India or to strike terror  in the people or any section of the people does any act or thing by using  bombs, dynamite or other explosive or inflammable substances or firearms or  other lethal weapons or poisons or noxious gases or other chemicals or by any  other substances (whether biological or otherwise) of a hazardous nature or by  any other means whatsoever" and the act of waging war have overlapping  features.  However, the degree of animus or intent and the magnitude of the  acts done or attempted to be done would assume some relevance in order to  consider whether the terrorist acts give rise to a state of war.  Yet, the  demarcating line is by no means clear, much less transparent.  It is often a  difference in degree. The distinction gets thinner if a comparison is made of  terrorist acts with the acts aimed at overawing the Government by means of  criminal force. Conspiracy to commit the latter offence is covered by Section,  121A.   It needs to be noticed that even in international law sphere, there is no  standard definition of war. Prof. L.Oppenheim in his well-known treatise on  International Law has given a definition marked by brevity and choice of  words.  The learned author said:  "war is a contention between two or more  States through their armed forces, for the purpose of overpowering each other  and imposing such conditions of peace as the victor pleases".  Yoram  Dinstein\027an expert in international law field analyzed the said definition in the  following words: "There are four major constituent elements in Oppenheim’s view  of War: (i) there has to be a contention between at least two  States (ii) the use of the armed forces of those States is required,  (iii)  the purpose must be  overpowering the enemy ( as well as  the imposition of peace on the victor’s terms); and it may be  implied, particularly from the words ’each other’ and (iv) both  parties are expected to have symmetrical, although diametrically  opposed, goals." The learned author commented that Oppenheim was entirely right in excluding  civil wars from his definition.    Mr. Dinstein attempted the definition of ’war’ in  the following terms: "War is a hostile interaction between two or more States, either in  a technical or in a material sense.  War in the technical sense is a  formal status produced by a declaration of war.  War in the  material sense is generated by actual use of armed force, which  must be comprehensive on the part of at least one party to the  conflict."

In international law, we have the allied concepts of undeclared war,  limited war, war-like situation\027the nuances of which it is not necessary to  unravel.          There is no doubt  that the offence of waging war was inserted in the  Indian Penal Code to accord with the concept of levying war in the English  Statutes of treason, the first of which dates back to 1351 A.D.  It has been  said so in almost all the Indian High Courts’ decisions of the pre-independence  days starting with AIR 1931 Rangoon 235.  In Nazir Khan’s case [2003 (8)  SCC 461] this Court said so in specific terms in paragraph 35 and extensively  quoted from the passages in old English cases.  Sir Michael Foster’s discourses  on treason and the passages from the decisions of the High courts referred to  therein are also found in Ratanlal’s Law of Crimes.  We should, therefore,  understand the expression "wages war" occurring in Section 121 broadly in the  same sense in which it was understood in England while dealing with the

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corresponding expression in the Treason Statute.  However, we have to view  the expression with the eyes of the people of free India and we must modulate  and restrict the scope of observations too broadly made in the vintage  decisions so as to be in keeping with the democratic spirit and the  contemporary conditions associated with the working of our democracy. The  oft-repeated phrase ’to attain the object of general public nature’ coined by  Mansfield, LCJ and reiterated in various English and Indian decisions should not  be unduly elongated in the present day context. On the analysis of the various passages found in the cases and  commentaries referred to above, what are the high-lights we come across?   The most important is the intention or purpose behind the defiance or rising  against the Government.  As said by Foster, "The true criterion is quo animo  did the parties assemble"?  In other words the intention and purpose of the  war-like operations directed against the Governmental machinery is an  important criterion.  If the object and purpose is to strike at the sovereign  authority of the Ruler or the Government to achieve a public and general  purpose  in contra-distinction to a private and a particular purpose, that is an  important indicia of waging war.  Of course, the purpose must be intended to  be achieved by use of force and arms and by defiance of Government troops or  armed personnel deployed to maintain public tranquility.   Though the modus  operandi of preparing for the offensive against the Government may be quite  akin to the preparation in a regular war, it is often said that the number of  force, the manner in which they are arrayed, armed or equipped is immaterial.  Even a limited number of persons who carry powerful explosives and missiles  without regard to their own safety can cause more devastating damage than a  large group of persons armed with ordinary weapons or fire arms.  Then, the  other settled proposition is that there need not be the pomp and pageantry  usually associated with war such as the offenders forming themselves in  battle-line and arraying in a war like manner. Even a stealthy operation to  overwhelm the armed or other personnel deployed by the Government and to  attain a commanding position by which terms could be dictated to the  Government might very well be an act of waging war.         While these are the acceptable criteria of waging war, we must dissociate  ourselves from the old English and Indian authorities to the extent that they  lay down a too general test of attainment of an object of general public nature  or a political object. We have already expressed reservations in adopting this  test in its literal sense and construing it in a manner out of tune with the  present day. The Court must be cautious in adopting an approach which has  the effect of bringing within the fold of Section 121 all acts of lawless and  violent acts resulting in destruction of public properties etc., and all acts of  violent resistance to the armed personnel to achieve certain political  objectives. The moment it is found that the object sought to be attained is of  general public nature or has a political hue, the offensive violent acts targeted  against  armed  forces and public officials should not be branded as acts of  waging war. The expression ’waging war’ should not be stretched too far to  hold that all the acts of disrupting public order and peace irrespective of their  magnitude and repercussions could be reckoned as acts of waging war against  the Government. A balanced and realistic approach is called for in construing  the expression ’waging war’ irrespective of how it was viewed in the long long  past. An organized movement attended with violence and attacks against the  public officials and armed forces while agitating for the repeal of an unpopular  law or for preventing burdensome taxes were viewed as acts of treason in the  form of levying war. We doubt whether such construction is in tune with the  modern day perspectives and standards. Another aspect on which a  clarification is called for is in regard to the observation made in the old  decisions that "neither the number engaged nor the force employed, nor the  species of weapons with which they may be armed" is really material to prove  the offence of levying/waging war. This was said by Lord President Hope in R  Vs. Hardie in 1820 and the same statement finds its echo in many other  English cases and in the case of Maganlal Radha Krishan Vs. Emperor [AIR  1946 Nagpur 173 at page 186]. But, in our view, these are not irrelevant  factors. They will certainly help the Court in forming an idea whether the  intention and design to wage war against the established Government exists or  the offence falls short of it. For instance, the fire power or the devastating  potential of the arms and explosives that may be carried by a group of

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persons\027may be large or small, as in the present case, and the scale of  violence that follows may at times become useful indicators of the nature and  dimension of the action resorted to. These, coupled with the other factors, may  give rise to an inference of waging war.         The single most important factor which impels us to think that this  is a  case of waging or attempting to wage war against the Government of India is  the target of attack chosen by the slain terrorists and conspirators and the  immediate objective sought to be achieved thereby. The battle-front selected  was the Parliament House Complex.   The target chosen was the Parliament\027a  symbol of sovereignty of the Indian republic. Comprised of peoples’  representatives, this supreme law-making body steers the destinies of vast  multitude of Indian people. It is a constitutional repository of sovereign power  that  collectively belongs to the people of India. The executive Government  through the Council of Ministers is accountable to Parliament. Parliamentary  democracy is a basic and inalienable feature of the Constitution. Entering the  Parliament House with sophisticated arms and powerful explosives with a view  to lay a siege of that building at a time when members of Parliament, members  of Council of Ministers, high officials and dignitaries of the Government of India  gathered to transact Parliamentary business, with the obvious idea of  imperilling their safety and destabilizing  the functioning of Government and in  that process, venturing to engage the security forces guarding the Parliament  in armed combat, amounts by all reasonable perceptions of law and common  sense, to waging war against the Government. The whole of this well planned  operation is to strike directly at the sovereign authority and  integrity of our  Republic of which the Government of India is an integral component. The  attempted attack on the Parliament is an undoubted invasion of the sovereign  attribute of the State including the Government of India which is its alter ego.   The attack of this nature  cannot be viewed  on  the same footing  as a  terrorist attack  on some public office building or  an  incident resulting in the   breach of public tranquility.  The deceased terrorists were roused and impelled  to action by a strong anti-Indian feeling as the writings on the fake Home  Ministry sticker found on the car (Ext. PW 1/8) reveals. The huge and powerful  explosives, sophisticated arms and ammunition carried by the slain terrorists  who were to indulge in ’Fidayeen’ operations with a definite purpose in view, is  a clear indicator of the grave danger in store for the inmates of the House. The  planned operations if executed, would have spelt disaster to the whole nation.  A war-like situation lingering for days or weeks would have prevailed. Such  offensive acts of unimaginable description and devastation would have posed a  challenge to the Government and the democratic institutions for the protection  of which the Government of the day stands. To underestimate it as a mere  desperate act of a small group of persons who were sure to meet death, is to  ignore the obvious realities and to stultify the wider connotation of the  expression of ’war’ chosen by the drafters of IPC. The target, the obvious  objective which has political and public dimensions and the modus operandi  adopted by the hard-core ’Fidayeens’ are all demonstrative of the intention of  launching a war against the Government of India. We need not assess the  chances of success of such an operation to judge the nature of criminality. We  are not impressed by the argument that the five slain terrorists ought not to be  ’exalted’ to the status of warriors participating in a war.  Nor do we endorse  the argument of the learned senior counsel Mr. Sushil Kumar that in order to  give rise to the offence of waging war, the avowed purpose and design of the  offence should be to substitute another authority for the  Government of India.  According to learned counsel, the deprivation of sovereignty should be the  pervading aim of the accused in order to bring the offence under Section 121  and that is lacking in the present case. We find no force in this contention.  The  undoubted objective and determination of the deceased terrorists was to  impinge on the sovereign authority of the nation and its Government. Even if  the conspired purpose and objective falls short of installing some other  authority or entity in the place of an established Government, it does not in our  view detract from the offence of waging war. There is no warrant for such  truncated interpretation.         The learned senior counsel Mr. Ram Jethmalani also contended that  terrorism and war are incompatible with each other. War is normative in the  sense that rules of war governed by international conventions are observed  whereas terrorism is lawless, according to the learned counsel. This contention

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presupposes that the terrorist attacks directed against the institutions and the  machinery of the Government can never assume the character of war. The  argument is also based on the assumption that the expression ’war’ in Section  121 does not mean anything other than war in the strict sense as known in  international circles i.e. organized violence among sovereign States by means  of military operations. We find no warrant for any of these assumptions and  the argument built up on the basis of these assumptions cannot be upheld. In  the preceding paras, we have already clarified that concept of war in Section  121 which includes insurrection or a civilian uprising should not be understood  in the sense of conventional war between two nations or sovereign entities.  The normative phenomenon of war as understood in international sense does  not fit into the ambit and reach of Section 121.         The learned senior counsel Mr. Ram Jethmalani argued that in a case of  war, the primary and intended target must be combatants as distinguished  from civilians, though the latter may be incidentally killed or injured and that  feature is lacking in the present case. This contention, though plausible it is,  does not merit acceptance. When an attack on the Parliament was planned, the  executors of this plan should have envisaged that they will encounter  resistance from the police and other armed security personnel deployed on  duty fairly in large numbers at the Parliament complex. The slain terrorists and  other conspirators should have necessarily aimed at overpowering or killing the  armed personnel who would naturally come in their way. Inflicting casualties  on the police and security personnel on duty as well as civilians if necessary  would have been part of the design and planning of these hard-core terrorists  and the criminal conspirators. It is not necessary that in order to constitute the  offence of waging war, military or other forces should have been the direct  target of attack. There is no such hard and fast rule and nothing was said to  that effect in the long line of cases referred to supra.  The act laying siege of  Parliament House or such other act of grave consequences to the Government  and the people is much more reflective of the intention to wage war rather  than an attack launched against a battalion of armed men guarding the border  or vital installations.   Another point urged by Mr. Ram Jethmalani is that no violence or even  military operations can become war unless it is formally declared to be such by  the Central Government. So long as the Government does not formally declare  an operation to be war, it is contended that a state of peace is supposed to  exist however badly it may be disturbed. It is further contended that the  participants in the war are to be treated as the prisoners of war and they are  not amenable to the jurisdiction of domestic criminal Courts. It is pointed out  that the Hague convention and other international covenants which are  embodied in Schedule III of the Geneva Convention Act, 1960  lay down the  rules as to who the prisoners of war are and how they should be treated. In  substance, it is contended that Section 121 IPC cannot be invoked against the  participants in an undeclared ’war’. These arguments proceed on the  assumption that the expression ’war’ occurring in the Penal Code is almost  synonymous with war in international law sense. The question of formal  declaration of war by the Government would only arise in a case of outbreak of  armed conflict with another country or a political group having the support of  another nation.  It may be, in a case of civil war and a rebellion spreading  through the length and breadth of the country, the Government will have to  control it on war footing and it might even consider it expedient to declare that  a state of war exists, but, this theoretical possibility cannot be a guiding factor  in construing the expression ’waging war’ in Section 121 especially when there  is no legal provision mandating the Government to make such declaration. It was next contended that foreign nationals who intrude into the  territory of India and do not owe even temporary allegiance to the Government  of India cannot be charged of the offence of waging war.  In other words, the  contention is that a person who is not a citizen nor a resident alien cannot be  accused of high treason.  The decisions of House of Lords in Joys vs. DPP  [1946 All ER page 186] and of Privy Council in Lodewyk Johannes  vs. AG  of Natal [1907 AC 326] have been referred to. The dicta in Anthony  Crammer Vs. USA [325 US pages 1-77] and in the case of United States   vs.  Villato [1797 CC Pennsylvania Page 419] have also been referred to  in support of his proposition. The learned counsel has also placed reliance on  Sec. 13 of the 2nd Report of the Law Commissioners on the Indian Penal Code,

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the excerpts of which are given in Nazir Khan’s case [(2003) 8 SCC 461 at  486]. The Law Commissioners observed thus: "The law of a particular nation or country cannot be applied to any  persons but such as owe allegiance to the Government of the  country, which allegiance is either perpetual, as in the case of a  subject by birth or naturalization &c. or temporary, as in the case  of a foreigner residing in the country.  They are applicable of  course to all such as thus owe allegiance to the Government,  whether as subjects or foreigners, excepting as excepted by  reservations or limitations which are parts of the law in question."

We find it difficult to sustain the argument of learned Senior Counsel.  The  word ’whoever’ is a word of broad import.  Advisedly such language was used  departing from the observations made in the context of Treason statute. We  find no good reason why the foreign nationals stealthily entering into the  Indian territory with a view to subverting the functioning of the Government  and destabilizing the society should not be held guilty of waging war within the  meaning of Section 121.  The section on its plain terms, need not be confined  only to those who owe allegiance to the established Government.  We do not  have the full text of the Law Commissioners’ Report and we are not in a  position to know whether the Law Commissioners or the drafters of Indian  Penal Code wanted to exclude from the ambit of Section 121 the unauthorized  foreigners sneaking into Indian territory to undertake war like operations  against the Government. Moreover, we have no material before us to hold that  the views of Law Commissioners on this aspect, were accepted.  Those views,  assuming that they are clearly  discernible  from the extracted passage, need  not be the sole guiding factor to  construe the expression ’waging war’.    Though the above observations were noticed in Nazir Khan’s case, the  ultimate decision in the case shows that the guilt of the accused was not  judged from that standpoint. On the other hand, the conviction of foreigners  (Pakistani militants) was upheld in that case.          Another contention advanced by the learned counsel is that war including  civil war must have a representative character and the persons participating in  the war should represent a political entity, which has the objective of  overthrowing the Government and securing the sovereign status. This  contention too has no force in view of what we have said above regarding the  scope and ambit of the expression ’war’.         Thus, the criminal acts done by the deceased terrorists in order to  capture the Parliament House is an act that amounts to waging or attempting  to wage war. The conspiracy to commit either the offence of waging war or  attempting to wage war or abetting the waging of war is punishable under  Section 121A IPC with the maximum sentence of imprisonment for life. In the  circumstances of the case, the imposition of maximum sentence is called for  and the High Court is justified in holding the appellant Afzal guilty under  Section 121A IPC and sentencing him to life imprisonment. In addition, the  High Court has also held the appellant guilty of the offence under Section 121  IPC itself on the premise that he abetted the waging of war. The sentence of  life imprisonment imposed by the trial Court was enhanced to death sentence  by the High Court. We feel that the conclusion reached by the High Court both  in regard to the applicability of Section 121 IPC and the punishment, is correct  and needs no interference. The High Court observed: "if not acts of waging  war, what they did would certainly be acts of abetting the waging of war". In  this connection, we may clarify that the expression ’abetment’ shall not be  construed to be an act of instigating the other conspirators (i.e. the deceased  terrorists). There is another shade of meaning to ’abetment’ given in Section  107 IPC. It is clause secondly of Section 107 which is attracted in the case of  Afzal. We quote the relevant portion of Section 107 IPC, which reads as  follows: 107. A person abets the doing of a thing\027 Secondly.\027Engages with one or more other person or persons in  any conspiracy for the doing of that thing, if an act or  illegal omission takes place in pursuance of that  conspiracy, and in order to the doing of that thing;  

As criminal acts took place pursuant to the conspiracy, the appellant, as

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a party to the conspiracy, shall be deemed to have abetted the offence. In  fact, he took active part in a series of steps taken to pursue the objective of  conspiracy. The offence of abetting the waging of war, having regard to the  extraordinary facts and circumstances of this case, justifies the imposition of  capital punishment and therefore the judgment of the High Court in regard to  the conviction and sentence of Afzal under Section 121 IPC shall stand. The trial Court as well as the High Court also convicted the appellant  Afzal under Section 3 of Explosive Substances Act (for short ’E.S. Act’) and  sentenced him to life imprisonment and to pay a fine of Rs.25000/-. Under  Section 4 of E.S. Act, he was sentenced to 20 years R.I. and to pay a fine of  Rs.25000/-. We are of the view that Clause (a) of Section 4 of E.S.Act is attracted in  the instant case and the appellant Afzal is liable to be punished under the first  part of the punishment provision. The relevant part of Section 4 of E.S. Act is  as follows: 4. Punishment for attempt to cause explosion, or for  making or keeping explosive with intent to endanger life or  property.\027Any person who unlawfully and maliciously\027

(a)     does any act with intent to cause by an explosive substance  or special category explosive substance, or conspires to  cause by an explosive substance or special category  explosive substance, an explosion of a nature likely to  endanger life or to cause serious injury to property; or     (emphasis supplied)

(b)     \005

shall, whether any explosion does or does not take place and  whether any injury to person or property has been actually caused  or not, be punished\027

(i)     in the case of any explosive substance, with  imprisonment for life, or with imprisonment of either  description for a term which may extend to ten years,  and shall also be liable to fine;

The expression ’explosive substance’ according to Section 2(a) shall  be  deemed to include any materials for making any explosive substance; also any  apparatus, machine, implement or material used, or intended to be used, or  adapted for causing, or aiding in causing, any explosion in or with any  explosive substance. The planned attack on the Parliament House, by the use of explosives  and fire power, was evidently a part of the conspiracy to which Afzal was a  party. The preparation of explosives meant to be used by terrorists (co- conspirators) in the course of the planned attack of the Parliament House was  well within the knowledge of Afzal. He, in fact, procured the materials i.e.  chemicals etc., for facilitating the preparation of explosive substances at the  hideouts. This is what the evidence on record clerly points out. He is,  therefore, liable to punished under clause (a) read with (i) of Section 4 of  POTA and accordingly he shall be sentenced to the maximum sentence of  imprisonment for life and a fine of Rs.10000/-, in default of which, he shall  undergo R.I. for six months. However, the conviction under Section 3 of the Explosive Substances Act  is set aside as we are of the view that the ingredients of the said Section are  not satisfied in order to find Afzal guilty under that Section. Thus, Afzal will have life sentence on three counts. However, as he is  sentenced to death, the sentence of life imprisonment will naturally get  merged into the death sentence. The appeal of Afzal is accordingly dismissed, subject to the setting aside  of convictions under Section 3(2) of POTA and Section 3 of Explosive  Substances Act.

19.     CASE OF SHAUKAT (A2)

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       As in the case of Mohd. Afzal, the evidence against Shaukat Hussain  consists of confessional statement made to the Deputy Commissioner of Police  and the circumstantial evidence. (i)     Confession         The confessional statement said to have been recorded by PW60\027the  DCP, Special Cell at 3.30 p.m. on 21.12.2001 is marked as PW60/6. As per  Ext.PW60/11, the DCP administered the statutory warning and obtained an  endorsement from Shaukat that he was not under any duress and he was  ready to give the statement. We shall briefly refer to the contents of the  confessional statement. Shaukat spoke about his graduation in 1992 in Delhi, his acquaintance  with SAR Gilani of Baramulla who was doing his post-graduation in Arabic  language, starting fruit business in 1997 and disbanding the same, his  marriage with a Sikh girl named Navjot Sandhu @ Afsan Guru (A4) in the year  2000, purchase of truck in her name in June, 2000 and starting transport  business, his cousin Afzal of Sopore studying in Delhi University in 1990 and  his friendship with Gilani at that time. Then he stated about Afzal motivating  him to join the jihad in Kashmir and in October, 2001, Afzal calling him from  Kashmir and asking him to arrange a rented house for himself and another  militant, accordingly arranging rented accommodation in Boys’ Hostel at  Christian Colony and Afzal accompanied by the militant Mohammed coming to  Delhi and meeting him at his house in Mukherji Nagar and Afzal disclosing to  him that he was a Pak national of Jaish-e-Mohammad militant outfit and had  come to Delhi for carrying out a ’fidayeen’ attack. He then stated that during  that period, he discussed about jihad with SAR Gilani who also offered help in  carrying out the attack and Afzal thereafter going to Srinagar and bringing  some other militants who were Pak nationals and who brought with them arms  and explosives and they being accommodated at A-97, Gandhi Vihar and Afzal  and Mohammed making preparations for the attacks. He then stated about the  change of his mobile number as a precautionary measure and about his talks  with Ghazibaba, Mohammed and Afzal from his previous number and lending  his motorcycle. Then he stated that meetings were also held at his house for  discussion and execution of the plans and his wife was also in the knowledge  of their plans. Then he stated about the purchase of a second hand  Ambassador car by Afzal and Mohammed, taking another rented  accommodation in Indira Vihar. He then stated that on the night of  12.12.2001, he along with Afzal and Gilani met Mohammed and other militants  at their Gandhi Vihar hideout and Mohammed gave Laptop computer and  Rs.10 lakhs to Afzal with a direction to handover the Laptop to Ghazibaba and  the money to be distributed among Afzal, Gilani and himself. Mohammed told  them that the next day i.e. 13.12.2001, they were going to carry out ’fidayeen’  attack on the Parliament House. He then stated that Afzal called him from his  mobile phone number \005.89429 and asked him to watch TV and report about  the latest position of the movement of VIPs in Parliament. By the time he  switched on the TV, he received another call from Afzal that the mission was  on. Thereafter, he met Afzal at Azadpur Mandi and both of them went to  Gilani’s house to give him Rs.2 lakhs. However Gilani wanted them to hand it  over at his house in Kashmir. Finally, he stated that he along with Afzal left for  Srinagar in his truck on the same day and they were apprehended at Srinagar  on 15th December, 2001 and the Laptop and cash recovered by the police and  later they were brought to Delhi. Shaukat was produced before the ACMM by PW80 the next day along  with the other accused and the ACMM recorded his statement. The ACMM had  gone through the same procedure as in he case of Afzal and recorded the  statement that there was no complaint against the police personnel and that  Shaukat confirmed making the confessional statement before DCP any police  pressure. The first date on which Shaukat retracted the confession was on  19.1.2002 when he filed an application before the Designated Court expressing  certain doubts about the ’verbal confession made before Special Cell’. He  expressed that the Delhi Police would have twisted the confession ’in a  different way and different formation’. He further stated that he was made to  sign blank papers and was not allowed to read the confessional statement  before he signed it. Therefore, he requested the Court to record his statement  afresh. Another application was filed on 3rd June, 2002 i.e. after the charge-

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sheet was filed disputing the proceedings recorded by the ACMM when he was  produced before the Magistrate on 22nd December and also stating that he  gave verbal confessional statement before a Special Cell Officer and not before  DCP or ACP. He maintained that he was forced to sign some blank papers. The difference between the case of Afzal and Shaukat in regard to  confessional statement is that the retraction was done by Shaukat much earlier  i.e. within a month after it was recorded by the DCP. The other point of  difference is that Shaukat was sent to judicial custody unlike Afzal who was  sent to police custody after they were produced before the ACMM. The same  reasons which we have given in regard to the confessional statement of Afzal,  hold good in the case of Shaukat as well except with respect to the breach of  requirement as to judicial custody. The procedural safeguards incorporated in  Sections 50(2), 50(3) & 50(4) are violated in this case also. True, Shaukat was  sent to judicial custody after his statement was recorded by the Magistrate.  But in the absence of legal advice and the opportunity to interact with the  lawyer, there is reason to think that he would not have been aware of the  statutory mandate under Section 32(5) and therefore the lurking fear of going  back to police custody could have been present in his mind. The learned ACMM did not apprise him of the fact that he would no  longer be in police custody. There is also nothing to show that the confessional  statement was read over to him or at least a gist of it has been made known to  him. On the point of truth of the confessional statement, we have, while  discussing the case of Afzal, adverted to certain comments made by the  learned counsel for the appellants in order to demonstrate that the alleged  confession cannot be true judged from the standpoint of probabilities and  natural course of human conduct. Of course, we have not rested our conclusion  on these submissions, though we commented that they were ’plausible and  persuasive’. However, in the case of Shaukat, there is one additional point  which deserves serious notice. According to his version in the confession  statement, his wife Afsan Guru (A4) was also having knowledge of their plans.  Is it really believable that he would go to the extent of implicating his pregnant  wife in the crime. It casts a serious doubt whether some embellishments were  made in the confessional statement. We are not inclined to express a final  opinion on this point as we are in any way excluding the confession from  consideration on the ground of violation of procedural safeguards and the   utterly inadequate time given by PW 60 for reflection. The other point which was harped upon by the learned counsel Mr.  Shanti Bhushan was that Shaukat and Afzal were not produced before the DCP  in the forenoon on 21st December, 2001 as directed by him. In the first  instance, Gilani was produced and when he was not prepared to give the  statement, the learned counsel suggests that Shaukat and Afzal were taken  back to police cell and subjected to threats and it was only after ensuring that  they would make the confession, they were produced before the DCP late in  the evening. It is contended that the reason given for not producing them at  the appointed time is not convincing. Though the possibility pointed by the  learned counsel cannot be ruled out, yet, the argument is in the realm of  surmise and we are not inclined to discredit the confession on this ground. Excluding the confession from consideration for the reasons stated supra,  we have to examine the circumstantial evidence against Shaukat and assess  whether he joined in conspiracy with Afzal and the deceased terrorists to  attack the Parliament House or whether he is guilty of any other offence. The  circumstances analyzed by the High Court and put against the accused  Shaukat Hussain in the concluding part of the judgment, apart from the  confession, are the following: 1.      He along with Afzal took on rent room No.5, Boys’ Hostel, B- 41, Christian Colony on 7.11.2001 in which room the deceased  terrorist Mohammed had stayed.

2.      Cell phone No. 9810446375 which was recovered from the  house of Shaukat was for the first time made operational on 2nd  November, 2001. This conincides with the period when Afzal  acquired a mobile phone and the first hideout was procured.  This number was in contact with the satellite phone No.  8821651150059 and was also in communication with the

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mobile No. 9810693456 recovered from the deceased terrorist  Mohammed, on which number Mohammed had received calls  from the same satellite phone No. 8821651150059, and even  Afzal had received phone calls from this number. This  establishes that Shaukat was in touch with Afzal and  Mohammed during the period November-December, 2001 and  all the three were in contact with the same satellite phone No.  8821651150059.

3.      Shaukat’s motorcycle was recovered form the hideout and was  used for recee by the terrorists.

4.      Shaukat along with Afzal had left the premises A-97, Gandhi  Vihar along with 4/5 other boys in the morning of 13.12.2001  at about 10 a.m. in an Ambassador Car.

5.      When the Parliament was under attack, Afzal was in touch with  Mohammed. Shaukat was in touch with Afzal. He was thus in  contact with the co-conspirators and the deceased terrorists at  the time of attack.

6.      Shaukat had been visiting Afzal at A-97, Gandhi Vihar and 281,  Indira Vihar. He had also accompanied him when the room at  the Boys’ Hostel at Christian Colony was taken on rent. It  cannot be inferred that Shaukat was merely moving around  with his cousin. Keeping in view the totality of the evidence,  Shaukat was equally liable for what was happening at the  hideouts.

7.      Shaukat was present in Delhi till the forenoon of 13.12.2001  when Parliament was under attack and he absconded along with  Afzal when both of them were arrested at Srinagar. His  conduct, post attack, is incriminating.

8.      The laptop recovered from the truck belonging to wife of  Shaukat was the one which was used by the terrorists to create  the identity cards of Xansa Websity and the fake Home Ministry  stickers.

The High Court then commented at paragraph 402\027 "Shaukat’s role in the conspiracy was clearly that of an active  participant. Evidence on record does not show that he has been  brought within the sweep of the dragnet of conspiracy by merely  being seen associated with Afzal. There is more than mere  knowledge, acquiescence, carelessness, indifference or lack of  concern. There is clear and cogent evidence of informed and  interested co-operation, simulation and instigation against accused  Shaukat. Evidence qua Shaukat clearly establishes the steps from  knowledge to intent and finally agreement".

Taking into account the confessional statement which stands corroborated  by various circumstances proved, the High Court reached the inevitable  conclusion that Shaukat was a party to the agreement constituting  conspiracy. Once the confessional statement is excluded, the evidence  against Shaukat gets substantially weakened and it is not possible to  conclude beyond reasonable doubt on the basis of the other circumstances  enumerated by the High Court, that Shaukat had joined the conspiracy to  attack the Parliament House and did his part to fulfill the mission of the  conspirators. Apart from the confession, the High Court seems to have been  influenced by the fact that Shaukat was in touch with his cousin as well as  the deceased terrorist Mohammed through cell phone. But this finding, as  far as telephonic contact with Mohammed is concerned, is not borne out by  the cell phone records on which the prosecution relied. There was no  occasion on which Shaukat contacted Mohammed or any other terrorist. To  this extent, there seems to be an error in the High Court’s finding in the last

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sentence of circumstance No.2. The inference drawn in relation to  circumstance No.6 that Shaukat "was equally liable for what was happening  at the hideouts", cannot also be accepted. He may have knowledge of what  was going on but it could not be said that he was equally liable for the acts  done by the deceased terrorists and Afzal, unless there is enough material  apart from the confession, to conclude that he was a party to the  conspiracy. With these comments on the findings of the High Court, let us see what  could and could not be put against the appellant Shaukat. We undertake the  exercise of referring in brief to the evidence touching on each of the  circumstances adverted to by the High Court while noting the comments of Mr.  Shanti Bhushan wherever necessary. (ii)    Circumstance No.1 Shaukat in the company of Afzal seeking the assistance of PW38 who  was running STD booth in Christian Colony to get a room on rent and  approaching the proprietor of Boys’ Hostel (PW37) and taking a room in the  hostel on rent is established by the evidence of PW37\027the propretor. Both  PWs 37 & 38 identified Shaukat apart from Afzal. The more important piece of  evidence is the fact revealed by PW37 that he saw one Ruhail Ali Shah staying  in the room who showed his I.Card to him on enquiries. The identity card  (Ext.PW4/4) which was shown to PW38 was identified when the two accused  led the police to the hostel on 19.12.2001 itself. He also identified the accused  Afzal and Shaukat, both before the police as well as in the Court. The fact that  Shaukat and Afzal were coming to see Ruhail Ali Shah, who was no other than  Mohammed, was also spoken to by him. The photograph\027Ext.PW29/5 of  Ruhail Ali Shah, whose real name was Mohammed, was also identified by him.  The contention of the learned counsel appearing for Shaukat that test  identification parade ought to have been held, cannot be accepted having  regard to the legal position clarified by us in the earlier part of the judgment.  The fact that PW37 did not produce the register expected to be maintained by  him, does not also discredit his testimony which has been believed by both the  Courts. (iii)   Circumstance Nos.2 & 5 (phone contacts)         The evidence of the investigating officer\027PW 66 and PW67 reveals that  two mobile phone instruments were recovered on 15th December, 2001 from  the house of Shaukat. One of them, namely, Ext.PW36/1 with the phone  No.9811573506 was recovered from the hand of Afsan Guru. This was after  the telephonic conversation over this number at 20.09 hours was intercepted  on the night of 14th December. It transpired that the said conversation was  between her and her husband Shaukat speaking from Srinagar. Another cell  phone instrument with the number 9810446375 which was operated upto 7th  December, 2001 was also found in the house  and the same was seized. The  call records indicate frequent contacts between Shaukat and Gilani and  Shaukat and Afzal from the first week of November, 2001 upto 13th December,  2001. On the crucial day i.e. 13th December, 2001 just before the Parliament  attack, Mohammed spoke to Afzal at 10.43 and 11.08 hours and then Afzal  spoke to Shaukat at 11.19 hours and thereafter Mohammed spoke to Afzal at  11.25 hours and Afzal in turn called Shaukat at 11.32 hours. Mr. Shanti  Bhushan has challenged the truth of recoveries of phones on the ground that  no independent witnesses were required to witness the recovery. The learned  counsel has relied on the decisions in Sahib Singh Vs. State of Punjab  [(1996) 11 SCC 685, paras 5 & 6] and Kehar Singh Vs. State (Delhi  Administration) [(1988) 3 SCC 609 at page 654, para 54] to show that in  the absence of independent witnesses being associated with search the seizure  cannot be relied upon. We do not think that any such inflexible proposition was  laid down in those cases. On the other hand we have the case of Sanjay v.  NCT [(2001) 3 SCC 190], wherein it was observed at para. 30, that the fact  that no independent witness was associated with recoveries is not a ground  and that the Investigation Officers evidence need not always be disbelieved. Of  course, closer scrutiny of evidence is what is required. Having regard to the  fact situation in the present case, the police officers cannot be faulted for not  going in search of the witnesses in the locality. There is no law that the  evidence of police officials in regard to seizure ought to be discarded. They  took the help of Gilani who by then was in police custody to locate the house of  Shaukat and that Gilani was with the police, was mentioned by Afsan Guru in

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her Section 313 statement.         The next point urged by the learned counsel for the appellant that the  details regarding sales of mobile phones and SIM cards was not checked up  from the distributors of AIRTEL or ESSAR does not also affect the credibility of  recoveries. Such omissions in investigation cannot be magnified. The learned  counsel Mr. Shanti Bhushan as well as Mr. Sushil Kumar contended that it was  quite likely that all the deceased terrorists were having one mobile phone each,  but only three were shown to have been recovered and the other two must  have been foisted on the accused giving the colour of recovery from them. We  find no justification for this comment. Another point urged is that the recovery  of phones shown to be after 10.45 a.m. on 15th December cannot be true as  Afsan Guru was arrested on the night of 14th December, as held by the trial  Court on the basis of testimony of Srinagar police witnesses that the  information about the truck given by Afsan Guru was received early in the  morning of 15th December. It is therefore pointed out that the prosecution did  not come forward with the correct version of the search and recovery of the  articles in the house of Shaukat. In this context, it must be noted that Afsan  Guru (A4) was not consistent in her stand about the time of arrest. Whereas in  her statement under Section 313, she stated that she was arrested on 14th  December between 6.00 & 7.00 p.m. In the course of cross examination of  PW67, it was suggested that she was arrested at 6 or 6.30 a.m. on 15th  December, 2001. Her version in the statement under Section 313 cannot be  correct for the reason that the intercepted conversation was at 8.12 p.m. on  14th December, 2001 and the police could have acted only thereafter. Though  the time of arrest, as per  the prosecution version, seems to be doubtful, from  that, it cannot be inferred that the search and recovery was false. One does  not lead to the other inference necessarily. The search and recovery of phones  having been believed by both the Courts, we are not inclined to disturb that  finding. In any case, the fact that the phone No. \00573506 was in the possession  of Afsan Guru stands proved from the intercepted conversation and the  evidence regarding the identification of voice.         Next, it was contended that the printouts/call records have not been  proved in the manner laid down by Section 63, 65A & 65B of the Evidence Act.  This point has been dealt with while dealing with the case of Afzal and we have  upheld the admissibility and reliability of the call records. The point concerning  the duplicate entries has already been considered in the case of Afzal and for  the same reasons we find no substance in this contention in regard to some of  the duplicate entries in the call records. (iv)    Circumstance No.3 (Recovery of motorcycle of Shaukat from 281,  Indira Vihar)         The fact that the Yamaha Escorts motorcycle with the registration  No.DL1SA3122  belonged to Shaukat Hussain, is borne out by the registration  records produced by PW53. In fact, in the course of Section 313 examination,  he did not deny that fact.  This motorcycle was found at 281, Indira Vihar as  seen from the evidence of PW76 and PW32.  Shaukat together with Afzal led  the police to the said premises at Indira Vihar as seen from the ’pointing out  and seizure memo’ (Ext.PW32/1) coupled with the evidence of PW76. PW32/1  was attested by PW32 also who was present at the time of search. As per the  evidence of PW32, Mohd. Afzal whom he identified in the Court, had taken the  2nd Floor on rent on 9.12.2001 through the property dealer\027PW31. PW32  stated that five or six persons were found in the upstairs on 11th December,  2001. When enquired as to why they were in the flat instead of his family,  Afzal stated that they would be leaving soon. On 12th December, 2001 Afzal  left the premises after putting the lock which was broken open by the police on  16th December. We have already noticed that the chemicals used for  preparation of the explosives which were purchased by Afzal were recovered  from the premises in the presence of PW32. Six detonators in a plastic  container were also found. Though PW32 claimed to have identified the  photographs of the deceased terrorists as those who were found in the  premises, this part of the evidence is not entitled to any weight as rightly  contended by Mr. Shanti Bhushan. PW32 stated that the police showed him  some photographs and told him that those were the photos of the slain  terrorists who attacked the Parliament. Thus, the  so called identification by  PW32 on the revelation by the police cannot be relied upon. In fact, the High  Court did not believe this witness on the point of identification of photos (vide

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paragraph 326 of judgment). However it is quite clear from the chemicals and  explosive materials found there that this hideout was taken by Afzal to  accommodate the deceased terrorists who stayed there to do preparatory acts.  The fact that Shaukat’s motorcycle was also found there, would give rise to a  reasonable inference that Shaukat kept it for use by Afzal and his companions.  It also reinforces the conclusion that Shaukat was aware of the Indira Vihar  abode of these persons.  (v)     Circumstance No.4 & 6 (Shaukat’s visits to Gandhi Vihar hideout)

       The evidence of PW34 who let out the 2nd Floor of his house at A-97,  Gandhi Vihar to the accused Afzal through PW33\027the property dealer, reveals  that Shaukat used to come to meet Afzal who was staying there under a false  name of Maqsood and that Shaukat used to meet Afzal at that place. PW34  identified Afzal and Shaukat. From the house in Gandhi Vihar, sulphur packets  (purchased by Afzal), Sujata Mixer grinder in which traces of explosive material  were detected, were found. PW34 identified the photograph of the terrorist  Mohammed (Ext.PW1/20) as the person who stayed with Afzal for a few days  in the premises. He stated that he could only identify the photograph of  Mohammed but not rest of them when the police showed him the photographs.  His evidence on the point of identification of Mohammed’s photograph inspires  confidence as Mohammed stayed in the premises for a few days. The witness  also deposed to the fact that on 13th December, 2001, Afzal, Shaukat and four  more persons left the premises around 10 a.m. and all excepting Afzal got into  an Ambassador car and Afzal came back to the premises. However, he did not  mention that one of the accompanying persons was Mohammed. His evidence  establishes that Shaukat was a frequent visitor to Gandhi Vihar hideout and he  was with Afzal and some others even on the crucial day. (vi)    Circumstance Nos. 7 & 8                 That after the attack on 13th December, Afzal and Shaukat left for  Srinagar in the truck owned by the wife of Shaukat and that the laptop, mobile  phone and cash of Rs. 10 lacs was recovered, is established by unimpeachable  evidence.  In her examination under Section 313 Cr.P.C. Afsan admitted that  her husband left Delhi in the truck to Srinagar on 13th December though she  expressed her ignorance about Afzal going with him.  There is the evidence of  PW 61, DSP at Srinagar that they stopped the truck near the police station at  Parampura and on the pointing out of Afzal and Shaukat they recovered the  laptop, mobile phone and Rs. 10 lacs    from the truck and the two accused  were arrested at 11.45 a.m. on 15th December.  Evidence of PW 61 was  corroborated by  PW 62, another police officer.  There is a controversy on the  question as to when the Srinagar police received the information, i.e., whether  at 10.30 or so on 15th December or in the early morning hours of 15th  December.  But the fact cannot be denied that Srinagar police acted on the  information received from Delhi about the truck number which was conveyed  by Afsan (A4).  PWs 64 and 65, the police officers of Delhi also testified   that  Afzal and Shaukat were handed over to them along with the seized articles on  15th  December at 1 P.M. as they reached Srinagar by a special aircraft.  The  stand taken by Shaukat was that he was arrested in Delhi from his house on  14th December which is obviously false in view of the plethora of evidence  referred to supra.  As regards the truck, he stated in the course of Section 313  examination that the truck loaded with bananas was sent to Srinagar on the  night of 13th December. The falsity of Shaukat’s version of arrest in Delhi on  14th is established by the fact that on the night of 14th, Shaukat  did call up  from Srinagar and spoke to his wife Afsan, the receiving number being   \00573506  which was later recovered from the house of Shaukat. The  Conversation was taped and PW48\027the Senior Scientific Officer in CFSL, Delhi  compared the voice samples of Shaukat and Afsan Guru sent to him with the  voice on the cassette which recorded intercepted conversation. He made  auditory and spectrographic analysis of voice samples.  He submitted a report  Ext. PW 48/1.  PW 48 testified that on comparison the voice was found to be  the same.  The High Court doubted the authenticity of the intercepted  conversation on the ground that duration noted by the expert in his report was  two minutes and 16 seconds was at variance with the duration of 49 seconds  noted in the call records.   The High Court laboured under the mistaken  impression that the duration was 2 minutes and 16 seconds which was the  duration of conversation between Gilani and his brother.  Even then there is

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some discrepancy (between 49 and 74 seconds which according to PW48 was  approximate) but no question was put to PW 48 in this regard nor any  suggestion was put to  PW 48 that the voice was not the same.    If any such  challenge was made the trial Court  would have heard the conversation from  the tape and noted the duration.  We are, therefore, of the view that the  finding as regards interception of truck, recovery of laptop etc. from the truck  and the arrest of Shaukat along with Afzal on 15th December at about 11.45  A.M.  at Srinagar cannot be doubted.  As already discussed, the laptop  computer stored highly incriminating material relating to the identity cards  found with the  deceased and the Home Ministry stickers pasted on the car  used by them. In addition to the above circumstances, the prosecution has placed  reliance on the evidence of PW45 who is the landlord of Shaukat to prove that  not only Afzal but also the deceased terrorists used to come to Shaukat’s  residence on the first floor a few days before the incident. In addition, PW45  stated that he had seen the persons, whose photographs he identified going to   Shaukat’s residence often two or three days prior to 13th December.  The  photographs were those of the deceased terrorists.  He stated that he was  running a printing press in the ground floor from where he could see the  people going to the first floor. He also stated that he was called by police in the  Special Cell at Lodi Road on 17th December and he was shown  some  photographs which he identified as those relating to the persons visiting  Shaukat and Navjot. But, we find no evidence of his identification before he  was examined in the Court.  It is difficult to believe that he would be in a  position to identify (in the Court) after a lapse of eight months the casual  visitors going to the first floor of Shaukat by identifying their photographs.  In  fact, in some of the photographs, the face is found so much disfigured on  account of injuries that it would be difficult to make out the identity on seeing  such photographs. Yet, he claimed to have identified the photographs of all the  five deceased terrorists as those visiting Shaukat’s residence.  He stated that  he could not identify Gilani as the person who was visiting  Shaukat’s residence  at that crucial time but after a leading question was put, he identified Gilani in  the Court.  The High Court did not attach any weight to his evidence regarding  identification of the deceased terrorists. Though the trial Court referred to his  evidence inextenso, no view was expressed by the trial Court on the point of  reliability of his evidence regarding identification.  Moreover, we find  considerable force in the argument of the learned counsel for the appellant that  it is hard to believe that the terrorists would take the risk of going to Shaukat’s  place for the so called meetings thereby  exposing to the risk of being  suspected, especially, at a place where two police sub-inspectors were staying  as stated by PW 45.  Even according to the prosecution case, by that time, the  deceased terrorists had settled down at their respective hide-outs with the help  of Afzal.  In the normal course, the terrorists would not have ventured to go  out frequently and if necessary they would call Shaukat for a meeting at their  place of stay instead of the whole gang going to Shaukat’s place frequently.   For all these reasons we have to discard the evidence of PW 45 insofar as he  testified that the deceased terrorists were the frequent visitors of Shaukat’s  residence  before the incident.         In addition to the above circumstances, the prosecution has placed  reliance on the evidence of PW45 who is the landlord of Shaukat to prove that  not only Afzal but also the deceased terrorists used to come to Shaukat’s  residence on the first floor a few days before the incident. The prosecution also relied on another circumstance, namely, that  Shaukat had accompanied Afzal to the shop of PW49 on 4th December, 2001 to  purchase a Motorola make mobile phone which was ultimately recovered from  the deceased terrorist Rana at the spot. No doubt PW49 stated that when Afzal  came to purchase telephone from the shop, the accused Shaukat present in  the Court was also with him. We are not inclined to place reliance on the  testimony of PW41 regarding Shaukat’s presence. It would be difficult for any  one to remember the face of an accompanying person after a considerable  lapse of time. The High Court did not place reliance on this circumstance.  There are, however, two circumstances which can be put against the  accused Shaukat. The secondhand motorcycle No. HR 51E-5768 was sold to  Mohd. Afzal on 8th December. He identified Afzal and Shaukat in the Court as  the persons who came to his shop on that day in the company of two others

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including a lady. He also identified them at the Special Cell on 19th December.  He could not identify the lady as Afsan. However, he identified the photograph  of the deceased terrorist Mohammed at the Special Cell on 19th December and  also in the Court. This motorcycle of Afzal was recovered from the hideout at  A-97, Gandhi Vihar which Shaukat used to visit frequently. His presence at the  shop with Mohammed apart from Afzal would show that he had acquaintance  with Mohammed also. The evidence of this witness has been criticized on the  ground that test identification parade could have been held and that there was  discrepancy in regard to the date of seizure memo of the bill book. These are  not substantial grounds to discredit the testimony of an independent witness\027 PW29. The High Court was inclined to place reliance on this witness in regard  to the identification of the deceased terrorist having regard to the fact that  they would have been in the shop for taking trial etc., and that the witness  would have had enough opportunity to observe the buyer’s party for quite  some time. Another circumstance that ought to be taken into account against  Shaukat is the telephonic conversation between him and his wife Afsan on the  night of 14th December. We have already held that the intercepted  conversation recorded on the tape is reliable and the High Court should not  have discounted it. The conversation shows that Shaukat was with another  person at Srinagar, by name Chotu (the alias name of Afzal, according to the  prosecution) and that  panic and anxiety were writ large on the face of it. In the light of the above discussion, can it be said that the circumstances  established by satisfactory evidence are so clinching and unerring so as to lead  to a conclusion, unaffected by reasonable doubt, that the appellant Shaukat  was a party to the conspiracy along with his cousin Afzal? We find that there is  no sufficient evidence to hold him guilty of criminal conspiracy to attack the  Parliament. The gaps are many, once the confession is excluded. To  recapitulate, the important circumstances against him are: 1.      Taking a room on rent along with Afzal at Christian  Colony hostel into which Afzal inducted the terrorist  Mohammed about a month prior to the incident.  Shaukat  used to go there.

2.      The motorcycle of Shaukat being found at Indira Vihar,  one of the hideouts of the terrorists which was hired by  Afzal in the 1st week of December 2001.

3.      His visits to Gandhi Vihar house which was also taken on  rent by Afzal in December 2001 to accommodate the  terrorists and meeting Afzal there quite often, as spoken  to by PW34.  

4.      Accompanying Afzal and Mohammed for the purchase of  motorcycle by Afzal.

5.      His frequent calls to Afzal especially on the date of attack,  

6.      His leaving Delhi to Srinagar on the date of attack itself in  his truck with Afzal who carried a mobile phone, laptop  used by terrorists and cash of Rs.10 lakhs.

7.      The fear and anxiety with which he and his wife  conversed over phone on the night of following day.

These circumstances, without anything more, do not lead to the  conclusion that Shaukat was also a party to the conspiracy in association with  the deceased terrorists. The important missing link is that there was no  occasion on which Shaukat ever contacted any of the deceased terrorists on  phone. Shaukat was not shown to be moving with the deceased terrorists at  any time excepting that  he used to go with Afzal to the Boys’ hostel where  Mohammed was staying initially and he once accompanied Afzal and  Mohammed to the mobile phone shop.  He did not accompany Afzal at the time  of purchases of chemicals etc. used for preparation of explosives and motor  car used by terrorists to go to Parliament House.  In the absence of any

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evidence as regards the identity of satellite phone numbers, the Court cannot  presume that the calls were received from a militant leader who is said to be  the kingpin behind the operations. The frequent calls and meetings between  Shaukat and Afzal should be viewed in the context of the fact that they were  cousins. Though his inclination and willingness to lend a helping hand to Afzal  even to the extent of facilitating him to flee away from Delhi to a safer place  soon after the incident is evident from his various acts and conduct, they are  not sufficient to establish his complicity in the conspiracy as such. Certain false  answers given by him in the course of examination under Section 313 are not  adequate enough to make up the deficiency in the evidence relating to  conspiracy as far as Shaukat is concerned.  At the same time, the reasonable  and irresistible inference that has to be drawn from the circumstances  established  is that the appellant Shaukat had the knowledge of conspiracy  and the plans to attack the Parliament House. His close association with Afzal  during the crucial period, his visits to the hideouts to meet Afzal, which implies  awareness of the activities of Afzal, the last minute contacts between   him   and Afzal and their  immediate departure to Srinagar in Shaukat’s truck with  the incriminating laptop and phone held by Afzal would certainly give rise to a  high degree of probability of knowledge on the part of Shaukat that his cousin  had conspired with others to attack the Parliament and to indulge in the  terrorist acts.  He was aware of what was going on and he used to extend    help to Afzal whenever necessary. Having known about the plans of Afzal in  collaborating with terrorists, he refrained from informing the police or  Magistrate intending thereby or knowing it to be likely that such concealment  on his part will facilitate the waging of war. In this context, it is relevant to  refer to Section 39 Cr.P.C.: 39. Public to give information of certain offences\027(1) Every  person, aware of the commission of, or of the intention of any  other person to commit, any offence punishable under any of the  following Sections of the Indian Penal Code (45 of 1860),  namely:--

(i)     Sections 121 to 126, both inclusive, and Section 130  (that is to say offences against the State specified in  Chapter VI of the said Code);

\005            \005                    \005                    \005 shall, in the absence of any reasonable excuse, the burden of  proving which excuse shall lie upon the person so aware, forthwith  give information to the nearest Magistrate or police officer of such  commission or intention;

Thus, by his illegal omission to apprise the police or Magistrate of the  design of Afzal and other conspirators to attack the Parliament which is an act  of waging war, the appellant Shaukat has made himself liable for punishment  for the lesser offence under Section 123 IPC. If he had given the timely  information, the entire conspiracy would have been  nipped in the bud.  The  fact that there was no charge against him under this particular Section, does  not, in any way, result in prejudice to him because the charge of waging war  and other allied offences are the subject matter of charges. We are of the view  that the accused Shaukat is not in any way handicapped by the absence of  charge under Section 123 IPC. The case which he had to meet  under Section  123 is no different from the case relating to the major charges which he was  confronted with. In the face of the stand he had taken and his conduct even  after the attack, he could not have pleaded reasonable excuse for not passing  on the information.  Viewed from any angle, the evidence on record  justifies  his conviction under Section 123 IPC. In the result, we find Shaukat Hussain Guru guilty under Section 123 IPC  and sentence him to the maximum period of imprisonment of 10 years  (rigorous) specified therein. He is also sentenced to pay a fine of Rs.25000/-  failing which he shall suffer R.I. for a further period of one year.  The  convictions and sentences under all other provisions of law are set aside.  His  appeal is allowed to this extent. 20.     CASE OF S.A.R. GILANI                 The High Court set aside  the conviction of S.A.R. Gilani and

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acquitted him of the various charges.                   There is no evidence to the effect that Gilani was maintaining  personal  or telephonic contacts with any of the deceased terrorists.  There is  no evidence of any participative acts in connection with or in pursuance of the   conspiracy.   He was not connected with the procurement of hideouts,  chemicals and other incriminating articles used by the terrorists.  Speaking  from the point of view of probabilities and natural course of conduct there is no  apparent reason why Gilani would have been asked to join conspiracy.  It is  not the case of the prosecution that he tendered any advice or gave important  tips/information relevant to the proposed attack on Parliament.  None of the  circumstances would lead to an inference beyond reasonable doubt of Gilani’s  involvement in the conspiracy.  There is  only the evidence of PW 45, the  landlord of Shaukat, that he had seen the deceased terrorists and Gilani  visiting the house of Shaukat two or three days prior to 13th December.  We  have already discussed his evidence.  His version of identification  of visitors by  means of the photographs of the deceased terrorists was held to be incredible.   As regards Gilani, in the first instance, he frankly stated that he could not  identify the person who was sitting in the Special Cell i.e. Gilani, but,  on a  leading question put by the Public Prosecutor, on the permission given by the  Court, PW 45  pointed out towards Gilani as the person that was in the Special  Cell.  It is noted in the deposition that initially the witness stated that he had  not said so to the police about Gilani.  In this state of evidence, no reliance can  be placed on the testimony of  PW 45 in regard to the alleged visits of Gilani to  the house of Shaukat a few days prior to 13th December.  The High Court  observed that in any case PW 45 did not state that he had seen Gilani visiting  the house of Shaukat in the company of five terrorists.  Therefore, the case of  the prosecution  that Gilani participated in the meetings at Shaukat’s place  where the conspiracy was hatched does not stand substantiated.                The High Court after holding that the disclosure statement of Gilani  was not admissible under Section 27 of the Evidence  Act and that the  confession of co-accused cannot also be put against him, observed thus: "We are, therefore, left with only one piece of evidence against  accused S.A.R. Gilani being the record of telephone calls between  him and accused Mohd. Afzal and Shaukat.  This circumstance, in  our opinion, do not even remotely, far less definitely and unerringly  point towards the guilt of accused S.A.R. Gilani.  We, therefore,  conclude that the prosecution has failed to bring on record  evidence which cumulatively forms a chain, so complete that there  is no escape from the conclusion that in all human probabilities  accused S.A.R. Gilani was involved in the conspiracy."

The High Court concluded that "the evidence  on record does not bring out a  high level of consciousness qua S.A.R. Gilani in the conspiracy."         We are in agreement with the conclusion reached by the High Court.  However, we would like to enter into a further discussion on the incriminatory  circumstances which, according to the prosecution, would have  bearing on the  guilt of the accused Gilani.          The fact that Gilani was in intimate terms with Shaukat and Afzal and was  conversing with them through his mobile phone No. 9810081228 frequently  between the first week of November and the date of the crucial incident is  sought to be projected by the prosecution prominently as an incriminating  circumstance against Gilani. Incidentally, it is also pointed out that there were  contemporaneous calls between Gilani, Afzal and Shaukat and Afzal and  Mohammed. It is particularly pointed out that after Shaukat acquired mobile  phone 9810446375, the first call was to Gilani on 2.11.2001 for 22 seconds.  Gilani in turn called him up and spoke for 13 seconds. Thereafter, there was  exchange of calls between Shaukat and Gilani on seven occasions in the month  of November. In the month of November, there was a call from Shaukat  through his phone No. 9811573506 to Gilani on 7th December, 2001 and on  the 9th December, 2001, Gilani spoke to Shaukat for 38 seconds. There was a  call on the midnight of 13th December for 146 seconds from Gilani’s number to  Shaukat. There is a controversy about this call which we shall refer to in the  next para. Then, soon after the attack on Parliament on 13th December, 2001,  there was a call from Shaukat to Gilani and thereafter from Gilani to Shaukat.  As regards the calls between Gilani and Afzal are concerned, the call records

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show that two calls were exchanged between them in the morning of 12th  November, 2001.  Then,  Gilani called up Afzal on 17.11.2001 for 64 seconds  and again on 7th December & 9th December, 2001. It is pointed out that on the  reactivation of the telephone of Afzal i.e. \00589429 on 7.12.2001, Gilani spoke  to Afzal on the same day. The High Court observed that on the basis of these  calls, it is not possible to connect Gilani to the conspiracy, especially having  regard to the fact that Gilani was known to Shaukat and his cousin Afzal.  Shaukat and Gilani lived in the same locality i.e. Mukherjee Nagar. It is not in  dispute that Gilani played a part at the marriage ceremony of Shaukat (A2)   and Afsan Guru (A4) in the year 2000. It is also not in dispute that they hail  from the same District and were the students of Delhi University. The calls  between them do not give a definite pointer of Gilani’s involvement in the  conspiracy to attack the Parliament. As far as the calls between Afzal and  Gilani are concerned, there was no call too close to the date of incident. One  call was on 7th December, 2001 and another was on 9th December, 2001. On  the date of incident, there was exchange of calls between Shaukat and Gilani  twice about half-an-hour after the incident. Not much of importance can be  attached to this, as it is not unusual for friends talking about this extraordinary  event. The phone calls between these three persons, if at all, would assume  some importance if there is other reliable and relevant evidence pointing out  the accusing finger against Gilani. That is lacking in the instant case. Gilani had  invited problem for himself by disowning the friendship with Shaukat and the  contacts with Afzal. In the course of examination under Section 313, he took  the plea that Shaukat was a mere acquaintance and he had not visited him.  When asked questions about the telephonic contacts giving the numbers  thereof, Gilani feigned ignorance of the telephone numbers of Shaukat and  Afzal by giving evasive answers  - ’I do not remember’. Of course, a wrong  question was also put with reference to the calls at 11.19 and 11.32 hours  on  13th which were between Afzal and Shaukat as if Gilani had called them up at  that time. Still, the fact remains that he did give false answers probably in his  over anxiety to wriggle out  of the situation. That does not make an otherwise  innocuous factor on incriminating circumstance.         There was a debate on the question whether the call from Gilani’s  number to Shaukat’s number at 00.41 hours on 12th December i.e. just on the  eve of the Parliament attack was made by Gilani. The call lasted for 146  seconds. The defence of Gilani was that Gilani’s brother called Shaukat to wish  him on that night which happened to be shab-e-qadr festival night and that it  was not unusual for the friends to exchange the greetings on that night. It is  pointed out by the learned counsel for the State that the testimony of DW5\027 Gilani’s wife, exposes the falsity of this defence. She stated that no one in the  family used cell phone that night. She stated that namaz was performed on the  night of 12th December, by all the family members together from 9.30 p.m.  onwards.   It was closed at 7.00 a.m. on 13th December, 2001 and then they  slept. She further stated that during namaz, her husband did not move out of  the room nor talked to anybody. She also stated that the cell phone was  switched off and kept aside. She denied that any call was made by her  husband on the cell phone at 00.45 hours on the intervening night of 12th /  13th December, 2001. It was contended before us that Gilani was not  questioned on this point in his Section 313 examination. If a question was put,  a clarification would have been given that  in fact, the brother of Gilani had  contacted Shaukat to convey good wishes. Comment was also made in regard  to the role, assumed by the learned trial Judge, of putting questions to DW5.  Though it appears that DW5’s evidence is inconsistent with the defence  version, as no specific question was put to Gilani on this aspect, we are not  inclined to go so far as to hold that it is undoubtedly a false plea. Yet, it raises  a grave suspicion that the accused was trying to hide something which might  turn out to be adverse to him. Even if there was such a call on the 13th  midnight between Shaukat and Gilani, undue importance ought not to be  attached to this fact, having regard to the state of other circumstantial  evidence on record.         Then, the prosecution relied on the evidence of PW39 who is the landlord  of Gilani. He merely stated in general terms that he had seen Shaukat and  Afzal visiting the house of Gilani two or three times during the period Gilani  stayed in his house i.e. during a period of more than two years. PW39 did not  say anything about visits of Afzal or Shaukat a few days or weeks before the

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incident.            Then, the prosecution relied on the disclosure statement\027Ext.PW66/13  to establish that Gilani was well aware of the names of the deceased terrorists,  the change of hideouts by Afzal and the material such as police uniforms which  were procured for the purpose of conspiracy. It is contended that the relevant  portions in the disclosure statement amount to informations leading to the  discovery of facts within the meaning of Section 27 of the Evidence Act.   According to the learned counsel for the State Mr. Gopal Subramnium, the  statement of Mr. Gilani disclosing the names of five deceased terrorists who  had come from Pakistan, Shaukat taking a room on rent for Mohammed in  Christian Colony and the terrorists securing explosives, mobile phones and  police uniforms are all admissible inasmuch as these facts led the investigating  agencies to further investigations which confirmed the information furnished by  Gilani. In this connection, we may recapitulate the contention of the learned  counsel that Section 27 rests on the principle of confirmation by subsequent  events and that the facts discovered need not necessarily relate to material  objects. We have already discussed the legal position in regard to the scope  and parameters of Section 27 and we have not accepted the contention of the  learned counsel for the State. We are of the view that none of the statements  can be put against Gilani. It may be noted that Gilani was not taken to any  places such as the hideouts where the incriminating articles were found. He  only pointed out the house of Shaukat who was in the same locality on the 15th  December, 2001  which is an innocuous circumstance. Though there is some  dispute on this aspect, we are inclined to believe the evidence of the  investigating officers because Afsan Guru, in her statement under Section 313,  stated that Gilani was with the police when they came to her house. One more  important aspect that deserves mention is that there is nothing to show that  the information furnished by Gilani led to the discovery of facts such as  identification of the deceased terrorists, recovery of chemicals, police uniforms  etc., at the hideouts. That was all done on the basis of informations furnished  by other accused. There is no inextricable link between the alleged  informations furnished by Gilani and the facts discovered. None of the  investigating officers deposed to the effect that on the basis of information  furnished by Gilani, any incriminating articles were recovered or hideouts were  discovered. On the other hand, the evidence discloses the supervening  informations which led the I.Os. to discover the things.         The disclosure memo has also been assailed (Ext.PW66/13) on the  ground that the arrest of Gilani was manipulated and therefore no credence  shall be given to the police records. Whereas according to Gilani, the time of  arrest was at 1.30 p.m. on 14th December, 2001 while he was going in a bus,  according to the I.O., the arrest was effected at about 10 a.m. on 15th  December, when he was about to enter his house. Though the time of arrest at  10 a.m. does not appear to be correct in view of the information which was  already passed on to Srinagar regarding the truck of Shaukat there are certain  doubtful features in the version of Gilani too that the arrest was effected on the  afternoon of 14th December, 2001. It is not necessary to delve into this  question further for the purpose of disposal of this appeal.             The last circumstance which needs to be discussed is about the  telephonic conversation between Gilani and his brother Shah Faizal on the 14th  December 2001 at 12.22 hours. His brother Shah Faizal examined as D.W. \026 6,   spoke from Baramullah/Srinagar, which was intercepted and recorded on tape,  Ex. P.W. 66/1, which conversation was admitted. The dispute is only about the  interpretation of certain words used in that phone conversation. The  conversation was in Kashmiri language, which was translated into Hindi  by  P.W. \026 71, a young man  whose educational qualification was only V standard.  As it was an ordinary colloquial conversation, there is no difficulty in the  speech being translated by a less educated person. As against this translation,  the defense version of translation was given by D.Ws. \026 1 & 2.  The relevant portion of the speech as translated by P.W. \026 71 is as  follows: Caller: (Bother of Gilani) What have you done in Delhi? Receiver: (Gilani) It is necessary to do (while laughing) ( Eh che zururi).   Caller:          Just maintain calm now. Receiver:  O.K. (while laughing)Where is Bashan? This portion of the conversation appears almost towards the end of talk.

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The defence version of translation is as follows: Caller: (Brother of Gilani) What has happened? Receiver: (Gilani) What, in Delhi? Caller:  What has happened in Delhi? Receiver: Ha! Ha! Ha! (laughing) Caller:     Relax now. Receiver:  Ha! Ha! Ha!, O.K. Where are you in Srinagar?         The controversy is centered on the point, whether the words "Eh che  zururi" were used by Gilani or not.  According to the prosecution these words  indicate the state of mind of Gilani in relation to the atrocious incident in Delhi  the previous day. The High Court commented thus in paragraph 346: "During  the hearing of the appeal, we had called for the tape from  Malkhana and in the presence of the parties played the same.  Indeed  the voice was so inaudible that we could not  make head or tail of the  conversation.  We tried our best to pick up the phonetical sounds  where there was a dispute as to what words were used, but  were  unable to do so.  Testimony of PW 48 reveals that he could not  analyse the talk as it was highly inaudible.  PW 48 is a phonetic  expert.  If he could not comprehend the conversation in a clearly  audible tone, the probability of ordinary layman picking up the  phonetic sounds differently cannot be ruled out.  The prosecution  witness, PW 71, Rashid, who prepared a transcript of the tape is fifth  class pass and it was not his profession to prepare transcript of taped  conversation.  The possibility of his being in error cannot be ruled out.   Benefit of doubt must go to the defence."

             However the trial Court took the view that the translation by PW 71  appeared to be correct.  The learned Counsel for the State submits that the  High Court should not have discarded this piece of evidence on the ground of  inaudibility, when two of the defence witnesses could hear and translate it.    However, the fact remains that the High Court was not able to make out the  words used nor the phonetic expert PW 48.  Moreover, there are different  versions of   translation.  The defence version having been translated by  persons proficient in Kashmiri and Hindi, the view taken by the High Court  seems to us to be reasonable.   At any rate, there is room for doubt. No doubt,  as per the deposition of DW 6, the brother of Gilani and the version of Gilani in  his statement under Section 313, the relevant query and answer was in the  context of quarrel between him and his wife with regard to the Kashmir trip  during Eid appears to be false in view of the tenor of the conversation.  At the  same time, in view of the discrepant versions, on an overall consideration, we  are not inclined to disturb the finding of the High Court.  However, we would  like to advert to one disturbing feature.  Gilani rejoiced and laughed heartily  when the Delhi event was raised in the conversation.  It raises a serious  suspicion that he was approving of the happenings in Delhi.  Moreover, he  came forward with a false version that the remark was made in the context of  domestic quarrel.  We can only say that his conduct, which is not only evident  from this fact, but also the untruthful pleas raised by him about his contacts  with Shaukat and Afzal, give rise to serious suspicion at least about his  knowledge of the incident and his tacit approval of it.  At the same time,  suspicion however strong cannot take the place of legal proof. Though his  conduct was not above board, the Court cannot condemn him in the absence of  sufficient evidence pointing unmistakably to his guilt.         In view of the foregoing discussion we affirm the verdict of the High  Court and we uphold the acquittal of S.A.R. Gilani of all charges.     21.     CASE OF AFSAN GURU @ NAVJOT SANDHU

The trial Court convicted her of the offence under Section 123 IPC imputing her  the knowledge of conspiracy and concealing the evidence of design to wage  war by reason of her illegal omission to inform the police.  The High Court  acquitted her of the charge.  We are of the view that the High Court is fully  justified in doing so. The prosecution case against this accused, who is the wife  of Shaukat Hussain, is weak, especially, in the light of the exclusion of  confessional statements of co-accused \026 Shaukat and Afzal.  The High Court  held the confessions inadmissible against the co-accused and we have  expressed the same view.  Incidentally, we may mention that even the

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confessions of co-accused do not attribute to her in clear terms the role of  conspirator, though on the basis of confessions it could perhaps be held that  she was in the know of things well before the planned attack on the  Parliament. In fact, there was no earthly reason for inviting her to join the  conspiracy.  She was pregnant by then.  Then it is to be noted that no  recoveries were effected at her instance coming within the purview of Section  27 of the Evidence Act as interpreted by us and the High Court.  Practically  there is no evidence left to bring her within the purview of Section 123 IPC  much less within the net of conspiracy to wage war and to commit terrorist act.  Indisputably, no positive or participatory role has been attributed to her and as  rightly observed by the High Court,  "she provided no logistics; she procured  no hideouts; she procured no arms and ammunition; she was not even a  motivator."  She could have had some knowledge of the suspicious movements  of her husband with Afzal who is his cousin and a surrendered militant.  Of  course, she was aware of the fact that Shaukat accompanied by Afzal left in  her truck on the day of Parliament attack in post-haste; but, the involvement  of Afzal, direct or indirect, and the attitude of her husband in relation to the  Parliament attack could have come to her knowledge after the attack when  they abruptly left for Srinagar in the truck.         The prosecution sought to rely on her disclosure memo Ex. PW 66/14 but  nothing was recovered as a direct result of the information given by her.  Of  course, as far as passing on the information regarding the truck by which  Shaukat left for Srinagar, there is no dispute. But the recovery of laptop etc.  from the truck is not distinctly relatable to the information contained in the  alleged disclosure statement.  The articles in the truck were recovered at the  instance of Afzal and Shaukat when it was intercepted at Srinagar.  We find no  link between the disclosure and the recoveries as a cause and effect.         The next piece of evidence relied against her is the telephonic  conversation she had with her husband Shaukat on the night of 14th December  which was taped.  We have held that the High Court erred in doubting the  authenticity of the said intercepted conversation     recorded on the tape. The  call was received by Afsan on the Phone No. 9811573506 and the caller was  her husband.  The voice of both has been identified by the expert, as already  noted.  The conversation reads thus: 14.12.2001 Time: 2013 hrs          9811573506 Caller:         Hello I am! Was there any telephonic call? (Shaukat) Receiver:               Shaukat where are you? (Afsan) Caller:         I am in Srinagar. Receiver:               Reached there.  Caller:         Yes. Receiver:               Some person had come just now. Caller:         From where? Receiver:               I don’t know.  Don’t say anything. Caller:         O.K. Receiver:               I don’t know they are with the lady of ground                           floor. Some vehicle is still parked outside. Caller:         O.K. Receiver:               I don’t know.  I did not speak anything. Caller:         O.K. Alright. Receiver:               Tell more, don’t speak anything now and tell                           me. I am much afraid. Caller:         No, No nothing dear, O.K. Receiver:               Are you fine? Caller:         Yes, Yes. Receiver:               Reached safely? Caller:         Yes, Yes. Receiver:               And Chotu? Caller:         Yes, Yes. Receiver:               Do you know? Caller:         Yes, Yes alright you may make a call. Receiver:               When? Caller:         In the night right now. I am calling from outside

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Receiver:               Alright I will call up tomorrow (while weeping) Caller:         O.K. As rightly observed by the High Court it shows that "Shaukat and Afsan were  talking between the lines.  Afsan was scared."  An inference can be drawn that  she was concerned about the safety of Shaukat and that she was aware that  Shaukat and Afzal did something that attracted police surveillance.  But from  this circumstance alone, no inference can be drawn with a reasonable degree  of certainty that she was having knowledge of the plan to attack the  Parliament before it happened.   The scanty evidence on record does not justify  her conviction either on the charges framed against her or under Section 123  IPC for which she was held guilty by the trial Court.  The High Court’s view is  unexceptionable. 22.     IN THE RESULT, we dismiss the appeal filed by Mohd. Afzal and the  death sentence imposed upon him is hereby confirmed.  The appeal of Shaukat  is allowed partly.  He stands convicted under Section 123 IPC and sentenced to  undergo RI for 10 years and to pay a fine of Rs. 25,000/- and in default of  payment of fine he shall suffer RI for a further period of one year.  His  conviction on other charges is hereby set aside.   The appeals filed by the  State against the acquittal of S.A.R. Gilani and Afsan Guru are hereby  dismissed.