9911796707
TMI Blog2003 (10) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2001 along with Mohd. Masood Azhar, Gazi Baba @ Abu Zehadi @ Abu Seqlain and Tariq Ahmed, all Pakistani nationals (declared as proclaimed offenders), to procure arms and ammunitions and attack the Indian Parliament when in session, intending to take as hostage or kill the Prime Minister, Central Ministers, Vice-President of India and Members of Parliament and for that purpose the said accused persons procured hide-outs in Delhi, helped in procuring arms and ammunition, a motor vehicle which facilitated the entry of the terrorists into Parliament House Complex; procured Chemicals for manufacture of explosives used by the slain terrorists who attached Parliament House. The charge of conspiracy was held not proved against accused No. 4, who was however found guilty of having knowledge of the conspiracy but failed to report the same to the police and hence was found guilty of having committed the offence under Section 123 IPC. Following sentence has been imposed on the accused: (a) Life imprisonment and fine of ₹ 25,000/- and in default R.I. for a period of one year each to accused 1 to 3 under Section 121 IPC; (b) Ten year's R.I. and fine of ₹ 10,000/- and in def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt as casting a duty on the High Court to satisfy itself by a reappraisal and reassessment of the entire evidence, uninfluenced by the judgment of the Court of Session, about the guilt or innocence of the accused person. Reference be made to: -A) Jumman and Ors. v. State of Punjab "12. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above-mentioned it is for the High Court to come to an independent conclusion of its own." B) . Rama Shankar Singh v. State of West Bengal. "11. The High Court had also to consider what order should be passed on the reference under SECTION 374, and to decide on an appraisal of the evidence whether the order of convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming sentence of death." F) . State of Tamil Nadu v. Rajendran "5. In performing its duty, the High Court is of necessity bound to consider the merits of the case itself and has to examine the entire evidence on record. The legislature having provided in the confirmation proceedings, a final safeguard of the life and liberty of the subject in cases of capital sentences, the duty of the High Court becomes more onerous to consider independently the matter carefully and examine all relevant material evidence and come to a conclusion one way or the other. It is, therefore, the duty of the High Court in a death reference to consider the evidence afresh." 3. We have thus reheard the matter afresh and have considered the issues raised in their entirety with reference to the evidence and law applicable. 4. Broadly categorised, issues which arise for consideration may be set out. They are:- 1. Whether there have been breaches of statutory safeguards during investigation? If yes, consequence thereof? - 2. What is the status of the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mir to Kanyakumari and from Gujarat to Arunachal Pradesh, Parliament embodies the republican character and federal structure of the Indian Nation. In the words of late Pandit Jawaharlal Nehru :- "To sum up, all out institutions, including the parliamentary institutions, are ultimately the projections of a people's character, thinking and aims. They are strong and lasting in the measure that they are in accordance with the people's character and thinking. Otherwise, they tend to break up." (See Nehru's Message to the first issue of the Journal of Parliamentary Information, Vol.1, No. 1, April, 1955) 9. The building of the parliament, "The Parliament House" is the seat of the national sovereignty. The attack on the Parliament, therefore, is an attack on the sovereignty of the people of India. It is an attack on the integrity of the Indian State. It is an attack on the secular and pluralistic fabric and character of India. Those who made an unsuccessful attempt to attack the Parliament House on 13th December, 2001 were aware of the significance of the attack. The writing on the fake Home Ministry sticker pasted on the car in which these persons ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bassador car having a red light and a sticker of the Home Ministry drove towards the carcade of the Vice President. Since the escort vehicle, of which he was in charge, was blocking the way, the car turned left. He called for stopping the car, at which the driver reversed and while doing so, struck the car of the Vice President. He and Shekher, driver of the car of the Vice President, caught the collar of the driver of the car. The driver was maneuvering the steering at which he got suspicious and took out his revolver. Five persons got out of the car. He fired at one of the persons, Realizing that they could be terrorists. There was retaliatory firing in which he received bullet injury on his right thigh. 14. PW-55, SI Sham Singh who was on duty in the Vice President security corroborated PW-5. In addition, he deposed that four of the five persons in the car ran towards wooden gate No. 9 of the Parliament House. 15. PW-69, Inspector Santokh Singh, deposed that he was posted on duty at Parliament House on 13.12.2001. The Prime Minister was to come. At 11.40 AM he had stationed himself at iron-gate No. 5. On hearing firing sound, he alerted his force. They took position at buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enced, it was conceded by the accused persons that they were not disputing recoveries effected at the site except the recoveries relating to the I-Cards, mobile phones, slips on which telephone numbers were noted. Order dated 5.6.2002 reads as under:- "5--6-2002 Present: Counsel for accd. persons are present. It is submitted by the counsels that part of the evidence namely, the post-mortem reports of he deceased terrorists as well as deceased persons who were killed in the attack at Parliament, MLCs of the persons injured in the attack, the recoveries of machine guns, explosive substances, etc. from the scene of occurrence in the Parliament except the recoveries of I-Cards, Mobile phones, slips on which some telephone numbers were given and other papers be considered as undisputed evidence and all the documents concerning the aforesaid evidence shall not be disputed by the accd. persons. Therefore, with the consent of the defense counsels, the documents which are MLCs of the injured persons, post mortem reports of the deceased persons and the documents regarding recovery of explosive substances, AK 47 riffles and other ammunition from the place of attack in Parliament or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . SI Sanjiv Verma (PW-2) was deputed to conduct investigation at gate No. 9. SI Rajinder Singh (PW-3) was deputed to conduct investigation at gate No. 5. The empty shells of cartridges as also the live cartridges which were found near the Ambassador car No. DL-3C-J-1527 were collected. After separately putting them in parcels, the live and empty cartridges were sealed and seized vide seizure memo Ex. PW-1/5. While he was doing the aforesaid, one Harpal Singh (PW-20) came to the spot and produced some documents relating to the car. These documents were: (a) original delivery receipt pertaining to car in favor of one Ashiq Hussain Khan (proved as Ex. PW. 1/6); (b) photocopy of identity card of Ashiq Hussain Khan; (c) photocopy of from No. 29 and 30 in favor Ashiq Hussain Khan, and (d) a letter issued by Infrastructure Leasing and Services Ltd. 24. He seized these documents vide seizure memo Ex.PW-1/7. The Bomb Disposal Squad from the National Security Guards, which had come to the spot, defused the explosive material found in the car, as also the explosive materials on the body of the dead terrorists. The photographer thereafter took photographs and the crime team inspected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te No. 9. He deposed that after the bomb disposal squad had checked all dead bodies and had removed explosives and devices, he proceeded with the investigation. He searched the deceased terrorists one by one and seized the material recovered as well as arms and ammunitions lying around them and on their person. Three AK-47 rifles, one .385 pistol and 5 spare magazine of AK-47 rifles and three fitted magazine which were double in size were recovered. Two mobile phones were recovered. Each terrorist was having one bag containing live cartridges. The arms and ammunitions seized were recorded vide recovery memo Ex.PW.2/2. One I-Card being Ex.PW.2/3, PW.2/4 and PW.2/5 was recovered from each of the terrorist. They were pasted by him on a plain paper on which he put his signatures. From the pocket of one terrorist he recovered a paper slip Ex.PW.2/7, having seven telephone numbers, which slip was pasted by him on paper after seizure. Another slip Ex.PW2/8 having same mobile numbers was recovered by him from the pocket of another terrorist which was likewise pasted on a plain paper. The recoveries were listed in the seizure memo Ex.PW.2/2. He prepared the sketch of the three AK-47 rifles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a bag. The articles recovered by him were vide seizure memo Ex.PW.3/4. Except for the I-Card, all articles seized were sealed with the seal of "RS." He prepared the sketch of AK-56 rifle and also of the hand grenade lever being Ex.PW.3/2. He sent the dead body for postmortem to Lady Harding Hospital and inquest report was Ex.PW.3/5. The name of the deceased terrorist was later on found to be Hayder on the identification of accused Mohd. Afzal. He got the postmortem of the 3 deceased security personnel, namely, Nanak, Kamlesh Yadev and Om Prakash the inquest reports being Ex.PW. 3/6, PW. 3/7 and PW. 3/8. The witness was subjected to a limited cross-examination, in that, it was put to him that accused Afzal had not identified the deceased terrorist, that he had not carried out the search of the dead body thoroughly and that no I-card was recovered. 31. PW.8 H.C. Ashwani Kumar who had assisted PW.3 in the investigation at gate No. 5, corroborated PW.3. He was cross-examined only by accused No. 3 pertaining to the contents of the I-card seized from the person of the deceased terrorist. 32. PW.4, SI Yograj Dogra deposed that he was directed by the SHO (G.L. Mehta PW. 1) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which contain the statement of S.I. Shyam Singh containing the endorsement of the SHO EX.PW.l/2 for onward transmission for registration of FIR. He took the rukka to P.S. Parliament House and got the FIR No. 417/2001 registered and came back with a copy of the FIR and the original rukka to the spot and handed over the same to the SHO. On the intervening night of 13th and 14th December, 2001 he was working in the malkhana. The case property seized by the SHO, S.I. Sanjiv Kumar Verma, S.I. Yograj Dogra and S.I. Rajender Singh was deposited in the malkhana vide entry at serial No. 1317 being Ex.PW.1/9. On 14.12.2001 Inspector Mohan Chand Sharma also deposited some property which was entered at serial No. 1319. On 15.12.2001 further case property was deposited by the SHO which was entered at serial No. 1320. Further deposit of case property was made by Inspector Mohan Chand Sharma on 15.12.2001 which was entered at serial No. 1321. S.I.Rajender Singh made further deposit of case property on 15.12.2001 which was entered at serial No. 1322. He received further case property on various dates between 16.12.2001 to 15.1.2002 for deposit in the malkhana. He handed over sealed parcels at dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The witness was not cross-examined. 38. PW.30 SI Mahesh Kumar, draftsman, Crime Branch deposed that he was called to the spot by the SHO G.L. Mehta. He deposed that he took measurements of the place and prepared the site plan Ex.PW.1/19. The witness was not cross-examined. INVESTIGATION GETS THE LEAD 39. PW.66 Insp. Mohan Chand Sharma from the Operation Cell, Lodhi Road, deposed that oh 13.12.2001, at about 12 noon, news of the attack on Parliament House had reached and a team under A.C.P. Rajbir Singh, of which he was a member left for Parliament House. He was deputed to investigate about the mobile numbers found written on the slips of paper recovered from the terrorists, as also the mobile phones recovered from the terrorists and the three SIM cards recovered from the purse of terrorist Mohd. He deputed his Sub-Inspector to obtain from the Cell Phone companies, the call details of these SIM cards and telephone numbers. Call details of the mobile phone number 9811489429 written on the I. Cards recovered from the terrorists were also requisitioned by him. By evening he got the details. From the call details he noted that : a) SIM cards corresponding to telephone number 981069 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hindi transcript of the second conversation were PW-66/4. On inquiry from the cell phone company pertaining to the two telephone numbers, it was learnt that both the calls had emanated from Srinagar. The second call was received from the number 0194492610 at Srinagar which was given to the Srinagar Police, Central Agency for keeping watch. On 15.12.2001 at about 10.00 A.M. S.A.R. Gilani entered his house when he was apprehended on being identified by the landlord and at the time of his arrest he was having mobile No. 9810081228 with him which was seized. From the memory of the telephone, the list of dialed numbers was noted and S.A.R. Gilani was questioned about the numbers which were appearing in the chart of phone numbers. S.A.R. Gilani informed him that the mobile No. 9811489429 belongs to Afzal and 9811573506 belongs to Shaukat. The mobile phone was seized and sealed vide, seizure memo Ex.PW-66/5. Personal search of S.A.R. Gilani was taken vide search memo PW-66/6 and thereafter S.A.R. Gilani led the investigating team to the house of Shaukat being No. 1021, 1st Floor, Mukherjee Nagar. Accused No. 4 Afzan Guru opened the door. She was having a mobile phone in her hand which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o purchase car, explosives and police uniform was discussed. Thereafter, survey was conducted and plan was finalised. He agreed to provide information pertaining to Parliament House. On the day of the attack, Shaukat asked him to watch T and inform which M.P. had reached Parliament. He could point out residence of his associates, place from where Chemicals were procured as also places from where mobile phones and uniforms were procured. 43. Afzan Guru, in her disclosure stated about her marriage being performed by S.A.R. Gilani with Shaukat, Afzal being cousin of Shaukat and a surrendered militant. She said that discussions were held between S.A.R. Gilani, Shaukat and Afzal regarding Islam. She disclosed that truck No. HR-38E-6733 was financed by her parents in her name. She disclosed about Mohd. being an associate of Maulana Azhar Masood and Gazi Baba, who was brought to Delhi by Afzal. She disclosed about arranging accommodation at Christian Colony, arranging arms and explosives. She made disclosure regarding plan to attack Parliament and purchase of car, Chemicals etc. to give effect to the plan. She disclosed that Mohd. gave ₹ 10 lakhs to Shaukat and a laptop and that Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He was cross-examined pertaining to the call received on 14th December, 2001 on telephone number 9810081228 and in particular pertaining to its translation. He denied that S.A.R. Gilani was arrested outside Khalsa College on 14.12.2001 at about 1.15 P.M. Cross examination by accused Mohd. Afzal was limited to the cassette of the second conversation taped i.e. the conversation intercepted on 8 P.M., made by the caller from Srinagar to Afzal Guru. In cross-examination suggestion put was that the cassette is interpolated. 45. PW-67 S.I. Bidrish Dutt who had accompanied Inspector Mohan Chand Sharma to the house of SAR Gilani on 15th December, 2001, deposed that on 15.12.2001 at 10.00 A.M., S.A.R. Gilani was arrested by Inspector Mohan Chand Sharma. S.A.R. Gilani informed that mobile No. 9811489429 belongs to Mohd. Afzal and mobile No. 9811573506 belongs to accused Shaukat and that they were involved in Parliament attack case. He corroborated the recoveries effected and seizure made from S.A.R. Gilani. He stated that at the instance of S.A.R. Gilani they reached house No. 1021, Mukherjee Nagar, First Floor where Afzan Guru was arrested. At that time she had one mobile phone of 'S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW-70), who noted the same. Witness was cross-examined by accused No. 3 wherein he admitted that he was fifth or sixth class pass, could not write in Hindi, but could speak and read Hindi. He stated that he could translate conversation from Kashmiri language into Hindi. He stated that the Kashmiri language used in the conversation could be easily understood by an ordinary person and hence could be translated easily. He stated that there were no English words like "internet, prospectus or syllabus" in the conversation. He denied the suggestion that the conversation did not have the sentence "YEH DILLI MEH KAYA KIYA HAI". He denied that the words "YEH JAROORI HOTA HAI" in Kashmiri language were not there in the cassette. He denied that there were no equivalent words in the cassette to the translation "ABHI AAP CHUP KAR KE BETHO". He stated that he did not know what was written by S.I. Harinder Singh and he had not signed the same. He denied that he was a police informer and also denied that the tape was inaudible due to external noise. 48. Since, as per the prosecution, in the morning on 15.12.2001, Afzan Guru, was arrested at around 10.30 A.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s present with PW-61 when accused Mohd. Afzan and Shaukat were arrested. He deposed in line with the deposition of PW-61. In cross-examination the suggestion to this witness was that the accused Shaukat and Mohd. Afzal were brought first to the Police Station and the truck came later, which was denied by him. 51. PW-64, SI Hardey Bhushan of the Special Cell, Lodhi Colony, stated that he along with SI Sharad Kohli left for Srinagar to bring Mohd.Afzal and Shaukat to Delhi. J&K Police gave him the articles recovered at the instance of the accused as also the documents pertaining to search and seizure. He brought the accused persons, recovered articles and documents to Delhi and handed over everything to Inspector Mohan Chand Sharma who interrogated the accused. Mohd.Afzal made a disclosure statement Ex.PW-64/1 and so did Shaukat being EX.PW-64/2. 52. PW-65, SI Sharad Kohli deposed that he went with PW-64 to Srinagar and took possession of truck No. HR-38E-6733. He remained in Srinagar to get information about Tariq and Ghazi Baba till 18.12.2001. He brought the truck to Delhi on 19.12.2001 and deposited the truck at P.S. Parliament Street. 53. Since accused Mohd.Afzal, Shaukat Hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As identified by accused Mohd.Afzal he got the dead terrorists photographed and pasted their photograph on a plan paper. Ex.PW-40/2 being the photograph of Hamja, Ex.PW-41/5 being photograph of Raja, Ex.PW-45/1 being the photograph of Rana, Ex.PW-29/5 being the photograph of Mohammad and Ex.PW-45/2 being the photograph of Hayder. Accused Mohd.Afzal took them to the shop of Anil Kumar and then to R&D Store and thereafter took them to Sawan Dry Fruits shop. He then took them to a shop at Fateh Puri from where a Sujata Mixer Grinder was purchased and finally to Hamilton Road, Kashmiri Gate from where red light for the car has been purchased. At the pointing out of accused Mohd.Afzal the pointing out memo of the shop of Anil Kumar being Ex.PW-40/1 was prepared by him. Similarly, on the pointing out of accused Mohd.Afzal pointing out memo towards shop No. 657, Sawan Dry Fruits and Kirana Store, Fateh Puri Chowk, Delhi was prepared by him being Ex.PW-41/1. Pointing out memos pertaining to the shop No. 141, Tilak Bazar, Delhi being Ex.PW-42/1 was prepared by him. Pointing out memo Ex.PW-76/2 relating to the pointing out of the shop being RD Store, shop No. 6504, Fateh Puri, Delhi was prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed that on 14.12.2001 two cassettes pertaining to calls received on phone No. 9810081228 and 9811573506 along with transcription and translation of the conversation were handed over to Inspector Mohan Chand Sharma by S.I. Harinder Singh. Cassettes were sealed with seal of "LMN". On 18.12.2001 Sanjay Maini of Xansa Websity came and on being shown stated that I-Cards recovered from the terrorists were not issued by them. He gave a sample of the I-Card being issued by them. Inspector Mohan Chand Sharma recorded voice sample of accused S.A.R. Gilani, Shaukat and Afzan Guru which were sealed with the seal of "BD". On 31.1.2002 he collected 88 sealed parcel from Malkhana of P.S. Parliament Street and gave them to CFSL, Lodhi Road vide R/C 1/21. Seal remained intact. On being cross-examined; witness stated that he did not hear the cassettes, aftex sealing, seals were given to S.I. Harinder Singh. He denied that he or Mohan Chand Sharma made alteration to the cassettes. PROSECUTION SEEKS TO PROVE RECOVERIES PURSUANT TO THE DISCLOSURE STATEMENTS 56. PW-31, Shri Baldev Raj, who is a property dealer, deposed that Shri Jagdish Lal was the owner of house No. 281, Indra Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he house. He denied the suggestion that accused Mohd.Afzal had kept the key of the lock of the premises with his wife and the police had opened the lock after taking the key from his wife. He denied the suggestion that Mohd.Afzal had not brought 5-6 persons in the premises. He denied the suggestion that no motorcycle was parked downstairs outside his house nor the same was seized from outside his house. On being cross-examined by accused Shaukat, he deposed that he knows English and he can read English. He had read the name of the Chemical from the jar. He had heard about ammonium, but read ammonium nitrate only on that date and had seen the detonators when they were recovered. He did not know their name but was told by the police that the article recovered was a detonator. On being cross-examined by Shri Neeraj Bansal, amices Curiae, he stated that he told the police in his statement recorded under Section 161 that when Afzal left with bag, he told him that he would bring his family after Id. He re-affirmed that the police asked the key of the lock from Afzal which was not with him, but does not remember whether the police recorded this or not. He denied the suggestion that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic bucket containing Chemicals was also seized. Police took out samples from the Chemical recovered and sealed the same. Ex.PW-1/20 was the photograph of the person who had lived with Mohd.Afzal. He identified the articles recovered from the premises which included three police uniforms. Accused Mohd.Afzal did not cross-examine the witness. However, Shri Neeraj Bansal, amices Curiae appointed for him cross-examined the witness. In cross-examination, he deposed that he did not verify if Mohd.Afzal was actually a student of Kirori Mal College nor got any verification done before letting out the house. He stated that after 16.12.2001 he was seeing accused Shaukat and Mohd.Afzal in Court on the date of his deposition i.e. 17.7.2002. He denied the suggestion that he was deposing falsely that the house was taken on rent by Mohd.Afzal and that he had taken any rent. He denied the suggestion that no recoveries were effected. On being cross-examined by accused Shaukat, he stated that he did not know what was inside the jars but the contents thereof were told to him by the police. He stated that he could not read English but could read Hindi. He stated that seizure memos prepared by the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he was running STD booth at A-66, Christian Colony. On 6.11.2001, two Kashmiri boys had come to his booth inquiring about the possibility of some rooms and he took them to the house of PW-37 and left them with PW-37. He stated that the two boys, who had come to him, were standing in the Court being accused Mohd.Afzal and Shaukat. The witness was cross-examined only by accused Shaukat. In cross-examination, he stated that he had not brought the papers of STD Booth which he stated was in the name of his brother but he used to sit for running the same. He stated that he does not get any commission from PW-37 and that he had not seen the accused persons after he had taken them to PW-37 except on 19.12.2001 when he was taken to the Special Cell where he had told the names of accused Shaukat and Afzal as the boys who had come to him. He denied the suggestion that he did not sit in the STD booth and had not seen the accused Mohd.Afzal and Shaukat at his booth at any time. 62. PW-40, Anil Kumar deposed that on 6.12.2001 accused Mohd.Afzal accompanied by another person identified to be the same person whose photograph was Ex.PW-40/2(Hamja) had visited his shop and placed an order for 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the accused. He denied the suggestion that the accused had not visited his shop to purchase the silver powder. 65. PW-43, Sunil Kumar stated that he conducts business from 6504 Fateh Puri in the name of RD Stores from where he sells electric gadgets. On 7.12.2001 accused Mohd.Afzal had purchased one Sujata Mixer Grinder from the shop. The cash memo book concerning the sale of the mixer grinder was Ex.PW-43/2 and the carbon copy of the cash memo dated 7.12.2001 relating to the mixer grinder was Ex.PW-43/1. On 17.12.2001 the accused was brought by the police to the shop. Ex.P-72 was identified by the witness as the mixer grinder sold to the accused. In cross-examination by the amices Neeraj Bansal witness admitted that the carbon copy Ex.PW-43/1 does not bear the name and address of the buyer. He denied the suggestion that Mohd.Afzal had not purchased any Sujata Mixer Grinder from his shop. 66. PW-44 and 49 deposed about sale of mobile phone instrument. PW-44 Sandeep Chopra deposed that on 7th or 8th December accused Mohd.Afzal had purchased one mobile phone "SONY" make and cash card of ₹ 500/-from him. Since Gaffar Market is a gray market no bill was issued. Hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shop for purchase of cell phone. 68. Ambassador car bearing No. DL-3CJ-1527 being the vehicle used by the five slain terrorists to gain entry into Parliament House, was recovered from Parliament House. PW. 15 to PW.20, PW.23 and PW.54 are the witness examined pertaining to the Ambassador car. 69. PW.54, Mr. Anil Ahuja, U.D.C., Transport Authority, Sheikh Sarai, New Delhi produced the registration particulars of the car and deposed that as per the record, the car stands registered in the name of Infrastructure Leasing and Financial Services Ltd. who were the original registered owners. He proved Ex.PW.54/1 being the registration certificate of the car. Witness was not cross-examined. 70. PW.15, Shri Mathew George, Executive Administration of Infrastructure Leasing and Financial Services Ltd. stated that the car belonged to the company and he was authorised to sell the car on behalf of the Company. It was sold to Shri Dheeraj Singh, an employee of the Company to whom letter Ex.PW.15/1 was issued certifying the sale of car. He had executed Form No. 29 and 30 to effect transfer of the car in the records of the Registration Authority and the original Registration Certificate was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Singh. He deposed that Jaggi Motors etc. keep telephonic contact with him in respect of sale and purchase of cars. He denied the suggestion that he did not give blank sale documents to Jaggi Motors. 74. PW.19, Harish Chander Jaggi, Proprietor of Jaggi Motors, deposed that he purchased the car from Raghubir Singh for a the sum of ₹ 81,000/-and deposed that he received the original papers pertaining to the car as also duly executed Form No. 29 and 30 in a blank condition. He purchased the car in partnership with Harpal Singh of Lucky Motors and therefore possession of the car was given to Lucky Motors. Harpal Singh sold the car for further sum of ₹ 1,08,000/- on 11.12.2001 and the two shared the profits after deducting the amount spent on renovation of the car. On being cross-examined by Mr. Neeraj Bansal, amices appointed by Court for accused Mohd. Afzal, witness deposed that he knows Raghubir Singh, as he works as motor mechanic. He had not brought the receipt which he had taken from Raghubir Singh. He however stated that he had taken a receipt which was given to Lucky Motors. 75. PW.20, Harpal Singh of Lucky Motors deposed that he had purchased the car in partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proved as Ex.PW.4/3). PW.20/5 was the photo copy of Form No. 29, Ex.PW.20/6 was the photo copy of Form No. 30, Ex.PW. 20/7 was the delivery receipt and Ex.PW.20/8 was a photo copy of the Registration Certificate of the car. He was taken to the dead bodies lying in the Parliament House and he identified that the dead body lying at Gate No. 1 was the same person who had introduced himself as Ashiq Hussain Khan. Ex.PW.4/3 was the same I-card which was shown to him by Ashiq Hussain Khan while purchasing the car photo copy of which was handed over to him. On 18.12.2001 accused Afzal was brought by police to his shop and pointing out memo Ex.PW.20/9 was signed by him at point 'A'. Witness was cross-examined by accused Mohd.Afzal. In cross-examination, he stated that he did not ask for a license when the car was sold as any person can purchase a car. He had not taken any document from Ashiq Hussain Khan except the coloured photograph and the photo copy of his I card and that he got the delivery receipt signed from accused Mohd. Afzal as a witness. Mr. Neeraj Bansal, amices, appointed for accused Mohd. Afzal thereafter cross-examined the witness. In cross-examination he stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uck No. HR-38E-6733 and proved the Certificate of Registration Ex.PW-51/1 as being issued in the name of Navjot Sandhu, daughter of H.S. Sandhu i.e. accused No. 4. In cross-examination, he stated that this was the first registration pertaining to the truck. 78. PW-53, Shri Mahesh Chand, L.D.C. from the Transport Authority, Rajpur Road, Delhi produced the record pertaining to motorcycle No. DL-15A-3122 and deposed that as per the official record, the motorcycle was originally registered in the name of J.S.Enterprises and stood transferred in the name of accused No. 2, Shaukat Hussain Guru. Registration record being Ex.53/1 was proved by this witness. On behalf of accused Shaukat, the witness was cross-examined. In cross-examination, the witness denied that Shaukat Hussain Guru had not applied for the registration of the motorcycle. He denied that the original documents submitted under the signatures of Shaukat Hussain Guru for transfer of registration of motorcycle in the name of Shaukat Hussain Guru were fabricated documents. Photographs of these documents, original of which were on the record, were taken on record as Ex.PW-53/D-2 to D-8. 79. PW-26, Jibba Ram deposed that he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his shop for the purchase of motorcycle. On being cross-examined by counsel for accused No. 4, he stated that he had no letter of appointment nor does he sign any attendance register. Apart from him there is one mechanic and two minor boys who are working at the shop. There were several shops around their shop doing the same business. Market remains crowded on the working days and when trial is given to a customer, one person from the shop sits with him on the pillion seat. Seldom a deal is struck with the customer in the first instance since the market is full of auto dealers and everybody tries a best bargain in different shops and generally in the second go the sales are effected. To a question put as to whether he keeps a track of the customer who leaves the shop, he stated that they do not bother where the customer goes. However, for customers who purchase motorcycle from the shop, their figure remains in his mind for about a month or two because the customers contact them if he faces difficulties in registration etc. On cross-examination by accused Mohd. Afzal, he denied the suggestion that Mohd. Afzal had not come to the shop for purchase of the motorcycle and that he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was used by S.A.R. Gilani and his family members as he lives on the first floor. He stated that he might have seen Shaukat and Mohd.Afzal visiting the house of S.A.R. Gilani 2-3 times. The witness was not cross-examined by any other accused persons. 85. PW-45, Tejpal Kharbanda stated that he lives at the ground floor of premises No. 1021, Mukerjee Nagar, owned by him where he was running a printing press. He had let out the first floor of his house to one Jyoti, being none other than accused Navjot Sandhu @ Afsan Guru, identified by him in the Court. The rent agreed was ₹ 4200/- per month while taking the first floor, she had stated that they had their own flat at Rohini and would be shifting there in 2-3 months time. No written agreement was executed between him and Jyoti since the house was being taken on rent for a short period. She had come to take the house on rent on 6.8.2001 and shifted alone on 8.8.2001. She had told that her husband was Kashmiri and was doing business of transport and had gone to Kashmir and would be coming back soon. She lived in the house for one and half month and then her husband, accused Shaukat joined her. So long as she was living the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, telephone calls had come for Navjot or Shaukat at his house and he had called them to attend the phone. He had not seen any relative of Navjot or Shaukat visiting them. Police had come to his house after 13.12.2001 but he was not at home. His statement was recorded in the Special Cell. He denied the suggestion that the father of accused Navjot stayed with her in the premises and he had met him. He stated that he had learnt that Mohd.Afzal was cousin of Shaukat and he had seen Mohd.Afzal visiting the house. He denied that he was deposing falsely. On being cross-examined by S.A.R. Gilani, witness denied that he was compelled by the Special Cell to state that S.A.R. Gilani was also one of the persons who used to visit Shaukat and Afzan. 86. PW-46, Usha Kharbanda, wife of PW-45, came to depose but before taking oath she stated the Court that she had received a threatening call. She was weeping and frightened and was not in a position to depose, hence her statement was not recorded. 87. PW-25, Sh. Jaswinder Singh deposed that he was running a computer center at 37, Bunglow Road, Kamla Nagar as franchise under XANSA Web-city. I-cards were issued directly by the principal company s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber denotes the number of a particular chip and it is also not duplicated. He was not sure that one sim number can have more than one phone numbers. Call I.D. refers to a particular transmission tower used by the company and the place where it is located. One transmission tower transmits within a particular area and is not unlimited. He was not aware of any coloning process by which the fraudulent calls can be made using a cell phone and that he was not aware of the ESN MIN number. IMEI number is always 15 digits. The company keeps records of SIM numbers supplied to the distributors. He was not aware if the distributors are required to keep record of IMEI number. On being cross-examined by accused S.A.R. Gilani, he stated that he was not a technical man nor does he deal with the computers from which these bills were collected nor he was involved in the management or upkeep of the computer. The switch maintained in the computer in respect of each telephone number receives the signal of the number called and serves them through a server and it is the server which keeps records of the calls made or received. In case a call is made but the receiver does not pick up the phone, the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitcase from the Malkhana, Parliament Street vide RC No. 3/21 and had delivered the same to GEGDBPR&D Hyderabad. So long as the suitcase remained in his custody, the seal remained intact (suitcase contained a laptop). Witness was not cross-examined. 95. PW-22, R.S. Verma, Director CFSL, Chandigarh deposed that on 31.12.2001 he received one sealed parcel containing three other sealed parcels having the seal of NSG, MHA (BDU). Ex.1-A contained Ammonium Nitrate 56.54%, Ammonium Cloride 31.19%, Aluminium 8.33%, sulphur 5.35%. Ex.1-B contained Ammonium Nitrate 45.2%, Ammonium Cloride 43.1%, Aluminium 7.34% and Sulphur 6.5%. Ex.1-C contained 79.4% PETN. He gave his reports Ex.PW-22/1 &2 which bore his signatures. Reports reveal that Ex.1-A contained samples from the explosives found in the tiffin bombs, Ex.1-B pertained to the explosives from the car bombs and Ex.1-C pertained to the explosives in the car. PETN is the acryonym for pentaerythritol tetranitrate belonging to the RDX family. The witness was not cross-examined. 96. PW-24, A. Dey, Sr.Scientific Officer, CFSL, CBI deposed that on 31.1.2002, 88 parcels were received which he had mentioned in his report Ex.PW-24/1. The results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted was Ex.PW-48/1. He clarified that pertaining to parcel No. 79(2) line No. 4 should be read as conversation with person and not "in person". On being cross-examined by accused Shaukat witness deposed that while examining the voice by spectrography he prepared voicegraph which could be seen visual. He did not know whether the voice samples sent to him were recorded directly or through a telephone. It was not necessary that the voice sample recorded at the instance by I.O. would have more tension in it. The person recording the voice need not have expertise to record the same. He did not remember if there were other words except the questioned conversation in the sample taped as he was concerned with the question conversation and not common sentences. He stated that when the sample voice does not have the same conversation, identification by spectrography cannot be taken out. However, identification by auditory analysis is possible. He stated that he quantified the similarity in respect of linguistic and phonetic formant frequency distribution and intonation patterns in his report. On being cross-examined by accused Afzan Guru he deposed that the spectrography analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Kant Arora. 101. PW-72, Shri Vimal Kant, an employee of Orion Convergence Ltd., a computer expert, deposed that he was called to the Special Cell on 17.12.2001 where he met Inspector Mohan Chand Sharma. He was asked to retrieve the information stored in the laptop. He worked on the laptop to retrieve the information from 17.12.2001 to 29.12.2001 and would report whatever progress he was making to Inspector Mohan Chand Sharma as also ACP Rajbir Singh. He gave his report Ex.PW-72/1. Documents, which were found stored in the laptop and prints out of which were taken out by him and submitted Along with the report were Ex.PW-59/1 to 7, PW-72/2 and PW-72/13. In the cross-examination by accused Afsan Guru and Shaukat, witness stated that his reports contained the sum total of all his observations. He admitted that hard disc is a replaceable component and could be formated. He admitted that if a hard disc was replaced, it would not contain the data which was stores earlier unless it is re-fed. He stated that the laptop which he examined was already having a hard disc. He stated that hard disc is connected to other organs of the laptop through wires and if the hard disc has to be replace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Examiner of Questioned Documents, Hyderabad, deposed that letter dated 19.2.2002 from the DCP was received by him for examining the storage media of the laptop and 210 smart media storage. He deposed that EX.P-83 was the laptop sent to him and EX-73/1 and 73/2 and 3 were smart media storage devise sent to him. After examining he gave his report Ex.PW-73/1. He qualified that he gave opinion dated 31.5.2002 with supplementary opinion dated 25.7.2002. Both constituted the report Ex.PW-73/1. In the cross-examination by accused Afsan Guru and Shaukat, witness deposed that ACGS was a software to view the images and browse them. He had mentioned in the report the various softwares installed in the storage media of the laptop. He stated that hard disc could be replaced in a laptop by highly skilled person and many systems crashed because of incompatibility of the replaced hard disc. According to his observation, DAT was last accessed on 21.1.2002 and it was created on 27.9.2001. The win. 386 swp was last accessed on 22.12.2001 and was last written on 22.1.2002. He stated that a file could not be written without being accessed by copying it on each storage media. He admitted that the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.12.2001, ACP Rajbir Singh made a written request being Ex.PW-60/1 regarding the recording of confessional statement of Mohd.Afzal, Shaukat and S.A.R. Gilani, who were in custody. He directed their production on 21.12.2001 at Officers' Mess, Alipur Road, where atmosphere would be free from threat vide his endorsement Ex.PW-60/2. On 21.12.2001 at 11.30 A.M. accused S.A.R. Gilani was produced by ACP Rajbir Singh. ACP Rajbir Singh was asked to leave the room. He explained to S.A.R. Gilani the consequences of confessional statements and also that he was not bound to make the same and that it could be used as evidence against him. S.A.R. Gilani did not make any confessional statement which was recorded as Ex.PW-60/4 and his endorsement was Ex.PW-60/3. Accused Shaukat was thereafter produced at 3.30 P.M., to whom also he explained that he was not bound to make the confessional statement which could be used against him. ACP Rajbir Singh was asked to leave the room. Accused showed his willingness, in writing, to make a confession which was Ex.PW-60/5. He thereafter recorded a confession in seven pages which was Ex.PW-60/6. Accused Shaukat signed the same at point 'A' on each p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that had not shown his willingness to make confessional statement. Witness denied that the relationship between Mohd.Afzal, Shaukat and S.A.R. Gilani was never related by accused Mohd.Afzal and he had falsely recorded the same in the confessional statement. In cross-examination by Mr. Neeraj Bansal, amices Curiae for Shaukat, witness stated that there was no signature of accused person on the application made by ACP Rajbir Singh on 20.12.2001. He said that what the accused narrated was recorded by him and it was correct, in the proceedings it is not recorded that what was recorded was as per the s statement made by the accused but volunteered that the proceedings were carried out in the manner that what was narrated was recorded. He denied that there was no correction in the statement recorded and pointed out that there were corrections whenever required. He denied that after S.A.R. Gilani refused to make confessional statement, the other two were beaten and were forced to make confession. In cross-examination by accused S.A.R. Gilani, witness stated that he made no effort between 20.12.2001 and 21.10.2001 to ascertain if the accused persons were willing to make confession. He den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before the designated Court. 106. PW-80, ACP Rajbir Singh, Special Cell, Lodhi Road deposed that on 13.12.2001, he reached the Parliament House on receiving information that firing was going on at 12.30 P.M. On reaching he learnt that five terrorists, who had launched the attack had been killed and some security personnel were also killed. It being a case of national importance, he gave directions to assist local police in the investigation of the case. From the spot, mobile phones, mobile phone numbers written on slips of papers were recovered and he gave directions to Inspector Mohan Chand Sharma to start investigation about the mobile phones and mobile numbers and directed Inspector H.S. Gill to help local police in recording of statements and examination of witnesses. On 15.12.2001, on the basis of interception of phones done by Inspector Mohan Chand Sharma, accused S.A.R. Gilani and Navjot Sandhu @ Afsan Guru were arrested and on the same day, Mohd. Afzal and Shaukat Hussain Guru were apprehended in Srinagar after information was sent to Srinagar through Central Vigilance Agency and they were brought to Delhi by S.I. Hardey Bhushan along with the laptop and cash recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self. On 29.12.2001, the expert called by the police completed the examination of the laptop. The expert had taken out hard copies of certain files which he seized vide memo Ex.PW.72/1, He deposed that hard copies of the stickers and I. card given by the expert from the laptop were Ex.PW.59/1 to 7 and hard copies of the photographs were Ex.PW.80/7 to 14. He obtained post-mortem reports of nine security personnel who were killed and the MLCs of 16 injured persons, which were Ex.PW.80/16 to 40. Material which was returned after destruction by NSG was seized by him vide seizure memo Ex.PW.80/15. He obtained a report Ex.PW.13/2 regarding sticker. He sent the laptop to BPH&D office, Hyderabad and obtained report. A team was sent to Pahalgam in search of Gazi Baba and other conspirators but without success and they were declared as proclaimed offenders. Reports from CFSL were collected and made a part of investigation record. He obtained sanction from the concerned authority under Section 50 of POTA and under Section 7 of Explosive Substances Act and Section 196 Cr.P.C. He recorded statements of witnesses as and when required. He obtained the post-mortem reports of the terrorists being E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not produced before the ACMM. He stated that Inspector Mohan Chand Sharma had been dealing with the investigation concerning mobile phone. He did not carry out any physical examination of the mobile phone from any expert. He did not tell the accused persons that they could engage a counsel. He learnt from the record that that relatives of the accused persons were informed about their arrest. He did not get the list of distributor of SIM Card of Airtel or Essar nor he was aware of any notification of the Government requiring the retailers to keep the record of the customers. He admitted allowing media to interview accused Mohd.Afzal in his office. He denied that the laptop had been illegally accessed in December, 2001 and January, 2002. He had no document to show how instrument identification is done. He does not know what de-code table in computer terms means. He was not in a position to tell about the investigation done concerning laptop since this part was done by Inspector Mohan Chand Sharma. He denied the suggestion that accused Afsan Guru was picked up from the house on 14.12.2001, which fact was to his knowledge. He admitted that he was involved in the Red Fort shoot out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the file through the Principal Secretary (Home) to the Lt.Governor. On 4.5.2002, the Lt.Governor accorded the sanction which was communicated by him vide order dated 8.5.2002 Ex.PW-11/2. The witnesses produced the original sanction files pertaining to both the sanctions. In cross-examination, he stated that no other document except the one's he had referred to in his statement were received in his office. Since the Lt.Governor had applied his mind, he could not say as to what document he considered while granting sanction against accused S.A.R. Gilani. He had put up his note in the file which was put up to the Principal Secretary (Home) on 1.5.2002. He denied the suggestion that no material showing involvement of S.A.R Gilani was available on record or that the sanction was granted mechanically. He stated that file brought by him bore the signatures of the Lt.Governor while granting approval. He stated that notes put up by him and the Principal Secretary drew attention of the Lt.Governor to the role of individual accused. 108. PW-12, Shri T.N. Mohan, DCP, Police HQ, deposed that request was received on 3.4.2002 for sanction for prosecution of the accused persons under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abus" were not there in the conversation. He stated that these words were used in response to the question what do you want. 111. DW-2 Sanjay Kak a documentary film maker deposed that he had heard the taped conversation recorded by the police on 14th December, 2001 between S.A.R. Gilani and the caller. The recording was extremely bad and one could make only a few sentence at the hearing. Only on repeated hearing full conversation could be understood. The transcription and translation was Ex.DW.2/A. The taped conversation contained the words "syllabus", prospectus etc. It did not contain the words "Ye chae zurari". The witness gave same explanation as given by DW-1 to the sentence "Ye kya Kuru". A similar cross-examination as the DW-1 was subjected, too was conducted qua this witness and he gave similar replies as given by DW-1. 112. DW-3 Munshi Ram S.I. Spl.Branch, Secret Section produced document which was exhibited as DW-3/B it being copy of letter dated 21.6.2002 addressed by the Spl. Commissioner of Police to the mobile phone companies regarding procedure to be followed in case computer print outs were required by the police. 113. DW-4, Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a hearing-aid to be sent from Delhi. Her husband came back from college at 9.00 p.m. On 14th December, 2001 her husband left house at 1.00 p.m. to go to the Masjid at Mall Road for performing Jumma Namaz telling her that he would be back by 4.00 p.m.. He was to send a hearing-aid for his mother through her brother who was to go to Kashmir and for this purpose two were to meet at J&K bus stand opposite Tis Hazari. Her husband did not come back by 4/4.30 p.m. Her brother-in-law also did not come back. She tried to talk to her husband on the telephone but could not contact him. She thought that the bus which had to go to J&K had got late, therefore, she opened the Roza herself. At 9.30 p.m. five or six persons in civil dress entered the house and forcibly took the entire family and were made to sit in a car where another woman who told her name as Navjot was present. They were all taken to Lodhi Colony Police Station and were confined in a room. Her son was allowed to go to the toilet and on return he told her that her brother and brother-in-law were confined in a different room in the police station. Her husband was brought to her room and was threatened that his wife and children ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was put off and kept aside and no one was talking on the phone. In the morning she got up first and then her husband got up at around 1 P.M. Since her husband was sleeping, he did not talk on the cell phone at 12.10 P.M. on 13.12.2001. She denied that her husband talked on the cell phone at 12.20 P.M. or 12.25 P.M., as according to her, he was sleeping. After 1.00 P.M., her husband might have talked on the phone as he was awake but she was in the kitchen. On 13th morning, the cell phone was kept on. On 14th they got up early in the morning to take sahari because of Roza and went back to sleep. She stated that she used to pick up the phone when her husband was sleeping. On 13.12.2001 at 9.53 P.M. he might have picked up the phone but stated that she did not remember correctly. On 14.12.2001, her husband might have left for Namaj between 12.30 P.M. And 1.00 P.M. 116. DW-6, Shah Faizal, deposed that accused S.A.R. Gilani was his brother. He had cell phone bearing No. 9810081228 on which he used to talk with him at least once a week. He wanted to appear in the medical entrance examination and for that needed syllabus and prospectus. On 13.12.2001, at about 1/1.30 P.M., he had made a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad interviewed accused Mohd.Afzal and based on the same, article Ex.DW-7/A written by her, was published in the Times of India. It was a correct reporting of interview which she had conducted. On being cross-examined, witness stated that she took notes of interview. Her write-up was edited by the Editor before being published. Interview was taken in the evening of 20.12.2001. She did not make attempt to interview other accused. In response to court question, she stated that it was a formal interview in which other Journalists from printing media were present, noting down whatever was told by the accused. Interview was not taped. Noting taken at the time of interview were not preserved and there is no method to cross-check whether the story published was in accordance with the nothings taken. 118. DW-8, Dr. Arun Mehta, Computer Engineer, deposed that he had a master's degree in Computer Science and was engaged in software teaching, writing and consultancy. He deposed that information stored in a computer is on a Magnetic medium, for instance a hard disc. Magnetics may be easily polarised one way or the other. Therefore, any data in a computer can be changed by a knowledgeable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the transcriber would depend upon his knowledge of language and also varies with familiarity with the material. She stated that fresh material normally elicits request for clarification entailing pauses, thereby adds to the time taken in recording a statement. 120. DW-10, A. Farhan, deposed that he is a Telecommunication and Electronic Engineer. SIM cards, IMSI code which corresponds to telephone number are assigned by telephone companies and they are unique. No call could be made from a sealed SIM card and a SIM card being a chip, could be replicated as a chip contain a program which could be re-programmed. It was possible to replicate a sealed SIM card. This, if done, is called cloning a SIM card. IMEI number, which again is a program, could be changed. The program on the mobile phone resulting in IMEI number is a 14 digit number and 15th is called a free digit. In reference to Ex.PW-36/A, pertaining to the call at 11.19.14 hours, where two calls pertaining to the same point stood recorded, witness deposed that it was impossible that two calls were made on one phone by two IMEI numbers simultaneously. To court questions, witness stated that he could not change IMEI numbers. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was caused to the accused persons. It was a case of media trial, was the submission made. It was argued that what was telecasted by the electronic media over the T repeatedly for the next two days was a full fledged interview of accused Mohd.Afzal. This had seriously prejudiced, or at least the possibility of causing serious prejudice in the mind of Trial Judge could not be ruled out, and as a consequence thereof accused were denied a fair trial. 124. The third issue argued by Shri Ram Jethmalani pertained to the sanction granted by the Lt. Governor for prosecution of the accused under POTA and sanction granted under Section 196 Cr.P.C. for I.P.C offences. Sanction granted by the Commissioner of Police under Section 7 of the Explosive Substances Act was also questioned. 125. The fourth issue raised by Shri Shanti Bhushan, learned Senior Counsel for accused Mohd. Afzal, was that in respect of POTA offences, all investigations prior to 19.12.2001 had to be ignored and evidence collected by the police up to 19.12.2001 was inadmissible for the POTA offences. 126. The fifth issue raised was whether an attack on the Parliament of India when it is in Session and the attack takes pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he context of the Indian decisions, counsel relied upon the judgments of Hon'ble Supreme Court , Kishore Chand v. State of Himachal Pradesh, , Khatri and Ors. v. State of Bihar and Ors., , Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, , Ranjan Dwivedi v. Union of India, Madhav Hayawadanrao Hoskot v. State of Maharashtra to contend that right to evidence includes right to effective and meaningful evidence at the trial; it is a facet of fair procedure and an inbuilt right to liberty envisaged under Articles 14, 19 and 21 of the Constitution of India by virtue of Article of 39(a) of the Constitution of India, the Constitution provides a fundamental right of free legal aid at State expense to an indigent accused person. Counsel argued that it is the duty of the Court to see and ensure that the accused is represented with diligence and competence by the defense counsel and where the defense falls below the acceptable standards at a criminal trial, it would amount to denial of counsel's assistance. Relying upon , Sheela Barse v. State of Maharashtra, counsel argued that the accused persons had a right to be informed immediately upon arrest that he had a right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." 131. Fair assessment of a counsel's performance has many inherent difficulties. Different counsel would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gilani stated that they would be engaging their own counsel. Accused Mohd.Afzal wanted a counsel to be engaged on his behalf at State expense. Mr. Attar Alam, Advocate was appointed as amices to defend accused Afzal. Mr. Attar Alam did not agree to act as amices for Mohd.Afzal and on 17.5.2002, Ms. Seema Gulati, Advocate agreed to act as amices for the accused. Charges were framed on 4.6.2002 and on 5.6.2002, all counsel, in the presence of the accused persons, made certain concessions resulting in the passing of the order dated 5.6.2002. Mohd.Afzal through out the trial never made a grievance that the statement was erroneous or was not authorised by him and made no attempt to withdraw the same, with the result that in terms of Section 58 of the Evidence Act, certain acts and documents referred to in the order dated 5.6.2002 stood proved on record without formal proof. On 1.7.2002, Ms. Seema Gulati moved an application for discharge. On 2.7.2002, she stood discharged and Mr. Neeraj Bansal was appointed as amices on behalf of accused Mohd.Afzal whom he had in fact engaged as his private counsel with Seema Gulati. We have gone through the record of the Trial Court and from the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 practitioner of his choice. The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Article 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to any accused person under circumstances of near-custodian 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. Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. The Miranda decision has insisted that if an accused person asked for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l H. Sheppard v. E.L. Maxwell, 384 U.S. 333 and Wilbert Rideau V. State of Louisiana, 373 U.S. 723. In all these judgments, what is to be noted is that the T had exposed to the community "repeatedly and in depth" the spectacle of the accused persons confessing in detail to the crimes, to which they were later charged. There were unfair and prejudicial news comments. There was a repeated telecast of the confessions. Further, the case relate to a trial by Jury. Apart from the said facts, though there are strong observations in the judgments against a trial by press, but that was held not to be a ground by itself to vitiate the trial. It was noted that where there was no real risk that the Jury would be influenced by publicity given by the print and electronic media, it could not be said that the trail stood vitiated. The time lag between the publicity and the conduct of the trial when the jury considered the evidence was to be kept in mind. 137. The position, in the Indian context would be different, and the judgment of Hon'ble Supreme Court R. Balakrishna Pillai v. State of Kerala, may be noted. It was held that where trials are conducted by Judges, the grievance rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government." 141. Section 196 of the Code of Criminal Procedure, 1973 reads as under : "196(1) No Court shall take cognizance of : (a)................... (b)................... (c)................... (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding: Provided that where the criminal conspiracy is one to which the provisions of Section 195 apply, no such consent shall be necessary." 142. PW-11 deposed about the request being received by the Lt.Governor for grant of sanction under Section 50 of POTA and grant of sanction under Section 196 of the Cr.P.C. For offences under Sections 121, 121A, 122, 124 read with Section 120B of I.P.C. 143. Shri Ram Jethmalani, learned Senior Counsel challenged the grant of sanctions by the Lt.Governor and argued that the same were null and void for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government in so far as Delhi was concerned. The argument was extended in reference to Article 239 and 239AA, in that, a person appointed as Administrator under Article 239 of the Constitution had then to be appointed to the office of Lt.Governor under Article 239AA and there was no Notification to this effect. 146. Counsel relied upon the judgment of Hon'ble Supreme Court reported as , Goa Sampling Employees' Assn. v. General Superintendence Co. of India Pvt. Ltd. and Ors. 147. The contention has to be noted and rejected for the reason that Article 239 of the Constitution provides that for the purpose of administering Union Territories, the President may appoint Administrators with such designation as he may specify (Emphasis ours). Article 239(1) of the Constitution reads as under: "239 Administration of Union Territories - (1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify." 148. The Constitution (69th Amendment) Act, 1991 inserted Article 239AA in the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , records that the Lt.Governor was acting "in exercise of powers conferred by Section 50 read with Clause (h) of Sub-section (1) of Section 2 of POTA." As far as sanction for offence under the Penal Code is concerned, Notification No. 11011/2/74/UTL-(1) dated 20.3.1974, copy whereof was produced for our perusal, shows that the Lt.Governor was delegated the power under Section 196 of the Code of Criminal Procedure. Order conveying the sanction being Ex.PW-11/2 records that the Lt.Governor was acting "in exercise of the powers conferred by Sub-section (1) of Section 196 of the Code of Criminal Procedure, 1973 read with Government of India, Ministry of Home Affairs Notification No. 11011/2/74/UTL-(1) dated 20.3.1974." 152. The second ground on which the sanction was challenged was by placing reliance on the judgment of Privy Council, reported as AIR 1948 Privy Council 82, Gokulchand Dwarkadass Morarka v. The King. It was contended that law requires that it must be proved that sanction was given in respect of the facts constituting the offence charged, in that, facts should be referred to on the face of the sanction. 153. In Gokulchand Dwarkadass Morarka case (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case," 155. We have noted the deposition of PW-11. He has proved Ex.PW-11/1, being the order by which he conveyed the sanction. It reads as under : "F.No.11/23/2002/HP-11/5507 - Whereas on consideration of the allegations made in case FIR No. 417/2001 dated the 13th December, 2001, registered under Sections 3/ 4/5/20/21 of the Prevention of Terrorism Act, 2002 (15 o 2002), 121/121A/122/124/186/332/353/ 302/307/120-B of the Indian Penal Code , 1860 (45 of 1860), Sections 25/27 of the Arms Act and sections 4/5/6 of the Explosive Substances Act (6 of 1908) at Police Station Parliament Street, New Delhi, recovery memos, disclosure statement made by the accused persons the draft charge-sheet and other material/evidence placed on record, the Lt.Governor of the National Capital Territory of Delhi is satisfied that the accused persons, namely, (i) Shri Syed Abdul Rehman Gilani, son of Shri Syed Abdul Wall Gilani, resident of 535, 2nd Floor, Mukherjee Nagar, New Delhi, (ii) Mrs. Klavjot Sandhu @ Afsan Guru, wife of Shri Shaukat Hussain Guru, resident of 1021, 1st Floor, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case FIR No. 417/2001 dated the 13th December, 2001, registered under Sections 121/121A/122/124/120-B of the Indian Penal Code, 1860 (45 of 1860), Sections 25/27 of the Arms Act, 1959 (54 of 1959) and Sections 3/4/5/6 of the Explosive Substances Act (6 of 1908) at Police Station Parliament Street, New Delhi, recovery memos, disclosure statement made by the accused persons, the draft charge-sheet and other material/evidence placed on record, the Lt.Governor of the National Capital Territory of Delhi is satisfied that the accused persons, namely, (i) Shri Syed Abdul Rehman Gilani, son of Shri Syed Abdul Wali Gilani, resident of 535, 2nd Floor, Mukherjee Nagar, New Delhi, (ii) Mrs. Navjot Sandhu @ Afsan Guru, wife of Shri Shaukat Hussain Guru, resident of 1021, 1st Floor, Mukherjee Nagar, New Delhi, (iii) Shri Mohd.Afzal, son of late Shri Habibullah, resident of Vill.Seer jagir, Police Station Sopore, Distt. Baramullah (Jammu & Kashmir) and (iv) Shri Shaukat Hussain Guru, son of Abdul Sattar Guru, resident of Vill.Doabga, Sopore, Distt.Baramullah (Jammu & Kashmir), at present - 1021, 1st Floor, Mukherjee Nagar, New Delhi, have prima facie, committed offences punishable under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons accused of the offence. 158. On the ratio of the judgments in Gokulchand Dwarkadass Morarka case (supra), it, therefore, cannot be said that there was no valid sanction. 159. Turning to the second sanction accorded by the Commissioner of Police under Section 7 of the Explosive Substances Act, PW-12 has deposed that file was put up to the Commissioner of Police which contained copy of the FIR, list of accused persons and witnesses, confessional statements, statements of witnesses, site plan, CFSL report and draft charge-sheet. He had communicated the sanction accorded by the Commissioner of Police under his signatures vide letter Ex.PW-12/1. Testimony of this witness went unchallenged in respect of the deposition by him as to what material was placed and considered by the Commissioner of Police. Thus, the sanction accorded under Section 7 of the Explosive Substances Act meets the requirement of law. 160. We may now note the fourth issue raised by the defense. Contention raised was that POTA had certain statutory safeguards and, therefore, all evidence collected prior to 19.12.2001 had to be ignored in relation to the POTA offences. Reliance was placed on Sections 36 to 48, 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation." 163. Whether on facts, there is a violation, is a different matter and would be dealt with when we discus the evidence. But as a mere proposition, no prejudice would be caused if POTA provisions were there or not qua the eights of the accused when arrested. 164. Sections 36 to 48 POTA deal with interception of communications and, inter alia, provide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is provided for under Rule 419A of the Indian telegraph Rules, 1951. It reads as under : 419-A (1) : Directions for interception of any message or class of messages under Sub-section (2) of Section 5 of the Indian Telegraph Act, 1885, (hereafter referred to as the said Act) shall not be issued except by an order, made by the Secretary to the government of India in the ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in charge of the Home Department in the case of a State Government. In emergent cases, such order may be made by an officer not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be. Such order shall contain reasons for such direction. A copy of such order shall be forwarded to the concerned Review Committee within a period of seven days: Provided that in emergent cases : (i) in remote areas, where obtaining of prior directions or interception of messages or class of messages is not feasible; or (ii) for operational reasons, where obtaining of prior directions for interception of messages or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which copies are made, the date of destruction of the copies and the duration within which the directions remain in force. (8) The Central Government and the State Government as the case may be, shall constitute a Review Committee. The Review Committee to be constituted by the Central Government shall consist of the following, namely :- (a) Cabinet Secretary...... Chairman (b) Secretary to the Government of India In-charge, legal Affairs... Member (c) Secretary to the Government of India Ministry of Telecommunication... Member The Review committee to be constituted by a State Government shall consist of the following, namely - (a) Chief Secretary ... Chairman (b) Secretary, Law/Legal Remembrancer"... Member (c) Secretary to the State Govt. (other than the Home Secretary)... Member (9) Review Committee within a period of sixty days from the issue of directions shall suo motu make necessary inquiries and investigations and record its findings whether the directions issued under Sub-rule (1) are in accordance with the provisions of Sub-rule (2) of Section 5 of the Act. When the Review Committee is of the opinion that the directions are not in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973) it was held that investigation consists of ascertaining of facts and circumstances of the case, resulting finally in the formation of an opinion as to whether or not there is a case to proceed against the accused persons and subjecting them to trial. It was followed by the cognizance and thereafter trial, it was held : "(9) The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This undoubtedly is the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fifth issue raised, it raises a question as to what is war and what is a terrorist act and what are the consequences. : 172. Section 3(1) of POTA gives the contours of what constitutes a "terrorist act". It reads as follows:- "3. Punishment for terrorist acts - (1) Whoever (a) 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 not act or thing by using bombs, dynamite or other explosive substances 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, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment with any other purposes of the Government of India, any State Government used or intended to be used for the defense of India, any State Government or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent sections of the people' were terrorist acts. These categories of acts are found missing in POTA but 'acts done with intention to threaten the unity, integrity, security or sovereignty of India' are terrorist acts under both statutes. The 'acts' have to be by use of arms, ammunition, noxious substances or Chemicals, referred to in both provision. We find that the purport and intent is substantially common. 175. While considering the applicability of TADA vis-a-vis same act constituting offences under the Penal Code, the Hon'ble Supreme Court held that it is not possible to give a precise definition of terrorism or lay down what constitutes terrorism but: "It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehend a war in the context of its features, it cannot be defined with logical precision. Concept of war from primitive days when bows, arrows and slings were used as weapons to over throw clans and tribes to subjugate them or possess their land and wealth, modern day wars have different concept. Learned counsel, however, urged that for an act or a series of acts to be labelled as war, following attributes must be present: (i) An objective to over throw the government by conquest of territory or by compelling some form of conduct or establishing an ideology or form of government. (ii) Means employed must be arms and ammunition and killing or overpowering of combatants, as distinct from killing civilians though they may be incidentally killed. (iii) Number of participants, scale of violence and nature of operation should be on a sufficiently large scale. (iv) A declaration by the competent executive authority of the State declaring a state of war. 182. Counsel contended that a fidayeen operation by five armed persons can at best qualify as an terrorist act. They cannot be exalted to the position of terrorists. Counsel contended that war is fought according to rules containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be appropriate in dealing with the concept of war between two rival states. 185. The phrase 'war' in ordinary parlance is to heighten the effect of an oral agreement or a written communication. As aptly described by Yoram Dinstein in his book 'Aggression' the word 'war' is a flexible expression suitable for an allusion to any serious strife, struggle or campaign. Loosely it may be used in expression such as "war of words", "war of nerves" etc. But this is a matter of poetic license. To understand the meaning of "war" a distinction has to be drawn between what war signifies in the domestic law of a State and what it denotes in International Law. Decisions of domestic courts in Municipal laws are no precedents for they are rendered in the context of the term "war" used in a particular legal system. Similarly issues germane to international law would not apply to domestic laws. Recognising the aforestated, Oppenheim excluded civil wars from his definition. Even Yoram Dinstein, passages from whose book Sh. Ram Jethmalani quoted at the bar, while dealing with the issue lodged the caveat: " Inter-State and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al victory." 187. Thus, where the goal is a complete subjugation of the enemy and a State mobilises all its resources in full measure and goes into offensive with all its military might, undeniably, it is war. But this is not the only concept of war. A dispute, like a bonder rectification mere so where it comes with an emotional load, if sought to be attained with force may well be a war. Hostilities do not cease to be wars merely because some weapons remain on the shelf, Yorom Dinstein himself opined that there may be a broad array of causes for such say restraint: lofty moral impulses, concession to public opinion at home and abroad, desire to avoid colossal losses, fear of retaliation or purely military considerations. 188. Ingrid Detter in "The Law of wars" illuminates us a little further. The learned author opines that the hallmark of terrorism invariably implies a demand that certain acts are taken by someone else. According to the author this leads us to: 'Terrorism is thus basically extortionate as its perpetrators seek to obtain their ends by force. This force is not applied against the person who can grant the wishes of the terrorists but against some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right conclusions, let us instruct ourselves by prying into the foliage of the past. 193. In 1781, Mansfield C.J. In R v. Gorden, (1781) 21 St. Tr.486 laid down: "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 to remove counsellors. The other, which is said to be levied against the Majesty of the Kings or, in other words, against him in his legal 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." 194. In 1820, Lord President Hope in his charge to the jury in R v. Wilson (1820) 1st Tr.(n.s) at pp 1353, 1354 observed: "The circumstances necessary to constitute a levying of war is not that there shall be a regular trained force, nor a regular army, and, indeed, from the nature of the thing in common sense, I am sure it must strike you that, except where a foreign enemy invades the country, war can never be levied in that manner in the commencement of an insurrection. .... What is a treasonable number, as the counsel for the Crown very prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ators, 2 silver powder packets (2 kgs), 2 boxes containing sulphur (1 kg). And one box containing ammonium nitrate (12.5 kgs) and you got recovered from H.No. 97, 2nd floor, Gandhi Vihar, Delhi three electronic detonators, two silver powder packets (2 kgs). 2 packets containing sulphur for TCL (1 kg) and two boxes having 40 sealed boxes containing ammonium nitrate purified wg.20 kgs. And thereby committed an offence punishable Under Section 5 of Explosive Substance Act." "Twelveth, that you all also conspired to commit and knowingly facilitated the commission of a terrorist act or acts preparatory to terrorist act and you also voluntarily harboured and concealed the deceased terrorists knowing that such persons were terrorists and that you were the members of a banned terrorist organisation i.e. Jaish-e-Mohammad, which is involved in terrorists act and thereby you committed an offence punishable Under Section 3(3) (4) and (5) of POTA." "Fifteenth, that you accused Mohd.Afzal and Shaukat Hussain Guru were found in possession of ₹ 10 lakhs, the amount given to you by deceased terrorists, which was the proceeds of terrorist acts and thereby you committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named persons to procure arms and ammunition to attack Indian Parliament when in session to make hostage or kill the Prime Minister, other Central Ministers, M.Ps, Vice-President thereby committing an offence under Section 120-B IPC. Charge as framed is in compliance with law. 203. No doubt charge No. 9 as framed does state that the accused Mohd. Afzal and Shaukat led the police to H.No. 281, Indra Vihar and A-97, Gandhi Vihar where explosive substances were recovered and offence committed was under Section 5 of the Explosive Substances Act, but it is clear that the substance of the charge in possession of the explosive substances with the accused. The language could have been better. It cannot be said that the accused did not comprehend the charge or were misled, much less that a miscarriage of justice has been committed. 204. Charge No. 15 relates to Section 6 of POTA. It is a prohibitory section and forfeits proceeds of terrorism to the Government. It is not a penal section. We find that trial court has only passed an order of confiscation under the Act. We may note that it appears that trial court has treated confiscation as penal and hence has framed a charge. No adverse co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to the existence of reasonable grounds to form a belief that two or more persons have conspired and the second part would come into operation when the condition of the first part is satisfied and makes relevant anything said, done or written by the conspirators as a relevant fact against the co-conspirators. In AIR 1965 SC 682 Sardar Sardul Singh Kavae Sher v. State of Maharashtra, the Hon'ble Supreme Court was pleased to hold that the evidentiary value of the act deed, or writing referred to in Section 10 of the Evidence Act is limited by two circumstances, namely, that the acts shall be in reference to the common intention, and in respect of a period after such intention was entertained by anyone of them. In almost all cases of conspiracy, the following passage by Coleridge, J., in R Murphy, 173 ER 502 is quoted as laying the root of the concept of conspiracy and we may be failing in our duty if we do not note the same:- "I 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 their common design and to pursue it by common means, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime. 213. A charge of conspiracy, inherently causes prejudice to an accused because it forces him into a joint trial and the entire mass of evidence against all the accused persons is presented for consideration of the court. This prejudice may get compounded when prosecutors seek to sweep within the dragnet of conspiracy all those, who have been associated in any degree whatsoever with the main offenders. But the prosecution also has a difficulty at hand. It is difficult for it to trace the exact contribution of each member of a conspiracy besides, direct evidence is seldom forthcoming. In the judgment , State of Maharashtra and Ors. v. Som Nath Thapa and Ors., the Hon'ble Supreme Court illuminating on this grey area, observed that for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment. Except for extreme cases, intent coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru 1941 Allahabad ALJR 416, Queen Empress v. Hoshhak may be re-emphasised:- 1. that the circumstances from which the conclusion is drawn be fully established; 2. that all the facts should be consistent with the hypothesis; 3. that the circumstances should be of a conclusive nature and tendency; 4. that the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved. FACTS PROVED BY THE PROSECUTION FROM THE TESTIMONY OF PW.1 to PW.10, PW.21, PW.30, PW.47, PW.55, PW.58, PW.69, PW.74 AND PW.75. 215. Since the deposition of the witnesses above-mentioned i.e. PW. 1 to PW.10, PW.21, PW. 30, PW.47, PW.55, PW.58, PW.69, PW.74 and PW.75 relate to the occurrence on 13.12.2001; recoveries and seizures effected at site on the day of occurrence and identification of the deceased terrorists, it would be useful to analyze as to what emerges from the evidence of the witnesses aforesaid and the documents proved by them. (i) Fire power available with the terrorists: (A) From the evidence of PW.5, PW.21, PW.55, PW.58, PW.69 and PW.74, none of whom was subjected to any cross-examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timony of PW.4, it stands proved that one 9 MM Beratta pistol, 20 used cartridges of AK-47 rifle, 5 used cartridges of 9 MM pistol and 29 live cartridges of 9 MM pistol were recovered from the place where the 5th terrorist was killed at Gate No. 1. 216. The fire power was awesome. Enough to engage a battalion. Had the terrorists succeeded the entire building with all inside would have perished. The foundation of the country would have shaken. The act was clearly an act of waging war against the Government of India. (ii) Registration of FIR 217. From the testimony of PW.1 SHO, P.S. Parliament Street, G.L. Mehta and PW.55 S.I. Shyam Singh, the rukka Ex.PW.1/1 stands proved as also the endorsement on the rukka Ex.PW.1/2 by the SHO on the basis of which FIR in question was registered. Testimony of PW.9 H.C. Sukhbir Singh proves that he carried the rukka to the P.S. and handed over the same to the Duty Officer PW.14 H.C., Malkiat Singh from whose testimony it stands proved that FIR NO. 417/2001 under Section 121, 121A, 122, 124, 120B, 186, 332, 353, 302, 307 IPC read with Sections 3, 4 and 5 of the Explosive Substances Act and Sections 25 and 27 of the Arms Act was registered. 218. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences and after virtually completing the entire investigation POTO provisions were added. 220. The argument of the learned counsel, at the first blush appears attractive and plausible but unfortunately, as noted above this aspect of the matter went unnoticed at the trial and we do not have the benefit of what the witnesses may have said. However at the bar, explanation given by the prosecution is that after the receipt of the computer print outs of the telephone calls pertaining to telephone numbers 9811489429, 9811573506 & 9810081228 referred to in the deposition of PW-66 Inspector Mohan Chand Sharma, which were received on 13th December, 2001 itself, the prosecution had by 15th December come into possession of six mobile instruments and had their IEMI numbers and had wanted further details of the corresponding SIM numbers pertaining to these mobile numbers and for that had addressed a letter on 17th December, 2001 to the AirTel company. No response was received and Inspector Mohan Chand Sharma had, infact on 25th December, 2001 sent a written request to have the requisite information transmitted to him. To satisfy ourselves we have perused the case diary and indeed it reflects t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valuable right on the opposite party to cross-examine the witness tendered in evidence. Section 146 of the Evidence Act enlarges the scope of the provisions of Section 138 by allowing putting questions to a witness to : a. Test his veracity; b. to discover who is and what is position in life; and c. to shake his credit. 223. The judgment of the Supreme Court , State of U.P. v. Nahar Singh and , Rajinder Prasad v. Darshana Devi, may be noted. (iii) Identity of deceased terrorist : 224. From the testimony of PW.2 SI Sajiv Kumar the inquest reports being Ex.PW.2/18, 2/19 and 2/20 stood proved. From the testimony of PW.3 SI Rajender Singh, the inquest report being Ex.PW.3/5 stood proved and from the testimony of PW.4 S.I. Yograj Dogra the inquest report being Ex.PW.4/18 stood proved. PW.2 in his deposition deposed that the accused No. 1 Mohd. Afzal was taken to the mortuary where he identified all the 5 deceased terrorists. It may be relevant to note that PW.2 had seized the slips of papers being Ex.PW.2/16 and PW.2/17 recovered by the Doctors from the pocket of the terrorist identified as Hamja and therefore his presence at the mortuary cannot be doubted. Further, PW.47 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court , Prakash Chand v. State be noted : "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 a investigation which would be hit by Section 162 Cr.P.C. What is excluded by Section 162 of the Code is the statement made to a police officer in the course of investigation. However, the evidence relating to the conduct of an accused person when deposed to by the police officer such as leading a police officer and pointing out the place where articles of weapons might have been used in the commission as conduct under Section 8 of the Evidence Act. This admissibility is irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act." 227. Identity of the five deceased terrorists thus stands established. Even otherwise, it makes no difference, what is relevant is the association of the accused with said five persons and not their na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars thereon as the identity card found on the person of deceased Raja. Identity card Ex.PW.4/3 was purportedly issued by Cyber Tec Compute Hardware Solution and was issued in the name Ashiq Hussain. 230. Learned counsel for the accused Mohd.Afzal and Shaukat contended that the evidence pertaining to the recovery of the identity cards and recovery of paper slips as also the evidence pertaining to recovery of mobile phones and sim cards from the spot of occurrence should be rejected inasmuch as purity of custody of the said items was doubtful as none of them were sealed at the time of their seizure nor were they deposited in the Malkhana within a reasonable time of seizure. In reply, Sh. Gopal Subramanium, learned Senior Counsel appearing for the prosecution contended that the identity cards, paper slips and the mobile phones as also the SIM cards were not sealed as they were required for further investigation and indeed evidence showed that the investigating authorities got leads from these recoveries and, therefore, these items of recovery were rightly not sealed. Counsel contended that purity of recovery of these items was maintained inasmuch as in the recovery memos, wherev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mobile phone of "Motorola' make, without Bty. On the sim card whereof 9881/1001/0801/2101/772 Magic and IMEI No. 449269,405808650 are written. 233. Pertaining to the recovery effected from the deceased terrorist Hayder, in recovery memo Ex.PW.3/4 the following finds mentioned:- "The following articles were recovered from the right upper pocket of the pants which the deceased terrorist was wearing:- (i) One identity card bearing the words 'XANSA' Computer Education Websity, Name Sanjay Kaul S/O. Anil Kaul, Qualification Matric, Group Ms Office, Phone No. 9811439429, Address 120A, Adarsh Nagar, Delhi Signature. Sd/- In English, Signature of Counsellor Sd/- In English, Date of issue 15.10.01, 37 Bunglow Road, Kamla Nagar, New Delhi-7 Telephone 76667678, WWW.XANSA.Com were written in English and the photograph of the deceased which was affixed on his identity card was stamped bearing the words 'XANSA' Computer Education, Kamla Nagar Dated 15.10.2001. The identity card was in mutilated condition." 234. In respect of the deceased terrorist Mohd. in recovery memo Ex.PW.4/8, the following finds mentioned:- " (2) One black coloured leather p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord 'Magic' in English and likewise the word 'H.O.' was also found written in blue colour and a number 8991100108011972173 was found written. On checking the same, the mobile number was learnt as 9810565284." 235. We are of the opinion that purity of the recovery of these items, in the facts and circumstances of the present case, cannot be said to be tainted. Thus, recovery of the mobile phones, sim cards and paper slips bearing telephone numbers from the person or around the deceased terrorists stands proved. We may deal with the recovery of the two paper slips Ex.PW-2/16 and 2/17 from the pant pocket of the deceased terrorist Hamja at the time of his postmortem. It is true that PW-2 had stated that he had thoroughly searched the bodies of the deceased terrorists whose body was at wooden gate No. 9 and found a paper slip having similar telephone numbers from the pocket of one terrorist and did not effect any recovery from the terrorist Hamja, but we have no reasons to disbelieve the testimony of PW-47, the doctor who conducted the postmortem when he deposed that two paper slips, one containing five telephone numbers and the other containing the address of Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to recoveries which were effected as contained in Ex.PW.4/8 were effected at site. It stands proved that 3 sim cards being Magic cards bearing Nos. :- (a) 8991100108011368273 corresponding to mobile No. 9810693456, (b) Sim Card No. 10007860034 corresponding to mobile No. 9811544860 and (c) sim card No. 8991100108011972173 corresponding to mobile No. 9810565284 were recovered from the purse of the deceased terrorist Mohd. We have discussed in the preceding part about the purity of the evidence pertaining to the recovery of I-cards and the paper slips from the deceased terrorists in the context of the argument of the defense that these being not sealed had resulted in a dilution of the purity of their recovery and in this context had also dealt with the arguments pertaining to the non-sealing of the mobile phones and the SIM cards. Thus, the non-sealing of the mobile phones in the circumstances was justified and does not affect the seizure. (viii) Recovery of dry fruits 242. From the testimony of PW.1, it stands established that from the spot recoveries were made of packets of dry fruits having label of Sawan Dry Fruits, 6507, Fateh Puri Chowk, Delhi-110006, Phone No. 3958486 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movement at the house of S.A.R. Gilani on the night of 13.12.2001 and therefore surveillance was withdrawn and reintroduced in the morning of 14.12.2001. At about 10 A.M. on 15.1-2.2001 accused S.A.R. Gilani was arrested by PW.66 on being identified by PW.39 the landlord of S.A.R. Gilani when he was about to enter his house. Mobile phone 9810081228 was recovered from his hand. He made a disclosure and led the police to the house of accused Shaukat and Afzan Guru where accused Afzan Guru was present. She opened the door. Mobile phone 9811573506 was in her hand. IMEI number of the instrument was 351077402325262. It was seized vide seizure memo PW-66/7. Search of her house led to recovery of mobile phone having SIM card No. 8991100102009283792. The instrument had IMEI number 490174612116430. She made a disclosure that accused Mohd. Afzal and Shakat had left for Srinagar after the attack in truck No. HR-38E-6733 owned by her. They had a laptop and ₹ 10 lacs with them. This information was flashed to Srinagar. Thus, as per the prosecution witnesses, accused Afzan Guru was arrested at around 10.45 A.M. On being brought to the Special Cell Lodhi Colony, accused S.A.R. Gilani made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in mounted on 14.12.2001 in the morning, Call record showed that at 8.53 A.M. Gilani had received a call on this number at his house. c) Arrest memo of SAR Gilani was not produced. PW-39 Naresh Gulati, the landlord of S.A.R. Gilani did not depose that Gilani was arrested on his identification though PW-66 and PW-67 were categorical that it was on the identification of PW-39 that they arrested SAR Gilani. The prosecution was hiding facts. No relative was informed about the arrest. d) DW-5, wife of S.A.R. Gilani, had deposed that Gilani left for offering the Jumma Namaj at the Mall Road Mosque at about 1 or 1.30 P.M. and from there was to meet her brother at J & K Bus Stop opposite Tis Hazari and was to come back at 4 P.M. When he did not return, she tried to contact him over his mobile phone which was not responding. This part of her testimony went unchallenged in the cross-examination. She had to be believed. e) The most important piece of evidence come from the testimony of PW-61 and PW-62. Information to track down truck, number HR-38E-6733 was available with the Srinagar Police in the morning of 15.12.2001 and the truck was tracked at 8 A.M. According to the prosecution, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by her about her illegal confinement, torture of SAR Gilani etc. were not put by her to PW-66 or PW-80 and were being stated for the first time in court. e) From the evidence it emerged that SAR Gilani was arrested first and thereafter Afzan Guru at the instance of SAR Gilani and it was he who led the police to the house of Afzan Guru. On overall conspectus of the evidence it stood established that arrest took place on 15.12.2001. f) PW-61 and PW-62 were over zealous in their testimony and it was natural human conduct to take credit. From the testimony of PW-66 it stood established that police at Srinagar was flashed a message on 14.12.2001 to look out for two persons, one name Shaukat near fruit mandi as the police had got said information from the call intercepted at 8.15 P.M. on the phone of Afzan Guru. Police was already on the look out. Information about the truck was flashed on 15.12.2001 after Afzan Guru gave disclosure. Possibility of PW-61 mixing up the two could not be ruled out. g) PW-61 on being cross-examined, apart from being put a suggestion that he was deposing falsely (which he denied), was put a suggestion that he arrested Shaukat and Mohd. Afzal from diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the arrest was valid or not would not affect the question whether the accused was guilty or not." 253. In , Prabhu v. Emperor, the Privy Council held that validity of trial and conviction was not affected by irregularity in arrest. The Supreme Court followed this in , H.N. Rishbud v. State of Delhi, and held that illegality in investigation cannot result in setting aside the trial unless it can be shown that it has brought about a miscarriage of justice. In , Pooron v. Director of Inspection, the Supreme Court held that relevant evidence cannot be excluded merely on the ground that it was obtained illegally - "where the test of admissibility of evidence lies in relevancy unless there is an express or implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out." 254. The doctrine "falsus in uno, falsus in omnibus" has not been accepted in Indian jurisprudence. In the judgment , Krishna Mochi v. State of Bihar, the Supreme Court held :- ''Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had IMEI No. 490174612116430, seized vide seizure memo Ex.PW-66/11. PW-66 was cross-examined by all the accused. Except for a bald suggestion that no recovery was affected by him or under his supervision, no worthwhile cross-examination has been done qua the recovery. PW-67, S.I. Bidrish Dutt, who was a witness to the search and seizure and deposed to the recoveries was not subjected to any cross-examination at all on the recoveries. His testimony on this aspect went unchallenged. Neither has PW-66 nor has PW-67 been subjected to any cross-examination in respect of recovery memo PW-66/7 and PW-66/11. No suggestion has been put to them that these are fabricated documents. Recovery memo PW-66/7 notes as under :- "In the presence of the witnesses mentioned hereinafter, a mobile phone make SONY the mobile No., IMEI No. and SIM No. whereof are 9811573506, 350177-402325262 and 10007605017 respectively, has been recovered from Navjot Sandhu alias Afshan Guru, W/o Shaukat Hussain Guru, R/o Village Doabga, Sopore, Baramullah, J & K presently residing at 1021, 1st Floor, Mukherjee Nagar, Delhi. The screen of recovered Sony set is bearing the word "ESSAR". On checking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reject the recovery by disbelieving the police. In the judgment reported as 2000 (VII) A.D. (SC) 613, Government of NCT of Delhi v. Sunil, it was held : 'We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also know about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haken. Their deposition stands. The recovery of one mobile phone having IMEI No. 350102209442432, the laptop and ₹ 10 lacs thus stands proved. Counsel for the defense argued that from evidence of PW-61 and PW-62, it has emerged that these recoveries were effected on the joint disclosure of accused Mohd. Afzal and accused Shaukat and hence were not admissible in evidence against any of them. Decisions of the Hon'ble Supreme Court , Lachman Singh v. State and , Mohd. Abdul Hafiz v. State of A.P. were relied upon. We shall deal with the evidencary value of this recovery when we deal with its effect and evidencary value a little later. For the present, we clarify, our finding is that it is proved that accused Mohd. Afzal and Shaukat were arrested by PW-61 and PW-62 at Srinagar. When they were apprehended, they were in truck No. HR-38E-6733, and from that truck the laptop, mobile phone instrument and ₹ 10 lacs were recovered. 262. The next evidence, in the sequence of facts, martialled by the prosecution against the accused is the records of the two mobile service provider companies: (1) Airtel, and (2) Essar. PW-35 and PW-36 deposed to prove the computer print outs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000." 270. Section 2(c) of the Information Technology Act, 2000 reads: "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro record." 271. Section 65A and 65B of the Evidence Act, 1872, inserted by Act No. 21 of 2000 read as under:- 65A. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of Section 65B. 65B. Admissibility of electronic records. (1) notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and describing the manner which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate, and purporting to be signed by a person occupying a reasonable official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form or whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment. 276. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the print out was retrieved from the computer memory and the computer was not malfunctioning. Section 69 reads as under : "(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown - (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer. (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of it contents; and [c] that any relevant conditions specified in rules of Court under Sub-section (2) below a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held sufficient in discharge of the affirmative burden. 283. In R v. Ana Marcolino,(CA "Crim.Div"), following the dictum of Lord Griffiths in R.V. Shepherd the evidence of the witness proving electronic record was analysed step wise which analyses is illuminative as to how the issue was dealt with. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows: 1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently. 2) He had retrieved from the computer the records relating to this mobile telephone and produced from those records the itemized account for the relevant period. To do so, he had accessed the billing records for that period. 3) he was not familiar with the precise details of the operations of the computer because he had not designed it. However, he had general knowledge of the system. He had no reason to believe that the computer records were inaccurate because of improper use. 4) Vodaphone is continuously audite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence." 286. The Law Commission in England reviewed the law relating to computer generated evidence. It summed up the major problem posed for the rules of evidence by computer output in the words of Steyn, J.:- "Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer. ... if computer output cannot relatively readily be used as evidence in criminal case, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". --- Realistically, therefore, computers must be regarded as imperfect devices." 287. It noted that given the extensive use of computers, computer evidence could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanical instruments were in order at the material time", operates with full force. 290. Experience has shown to us that development in computer networking, access, control, monitoring and systems security are increasingly making it difficult for computer errors to go undetected. Most computer errors are immediately detected or resultant error in the date is immediately recorded. In a court of law it would be impractical to examine the intricacies of computer functioning and operations. To put it in the words of the Law Commission report in England:- "Determined defense lawyers can and do cross-examine the prosecution's computer expert at great length. The complexity of modern systems makes it relatively easy to establish a reasonable doubt in a juror's mind as to whether the computer was operating properly. Bearing in mind the very technical nature of computers, the chances of this happening with greater frequency in future are fairly high. We are concerned about smoke-screens being raised by cross-examination which focuses in general terms on the fallibility of computers rather than the reliability of the particular evidence. The absence of a presumption that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicit. No suggestion was given to the witness that their computers were malfunctioning. We are satisfied that on the evidence on record, the prosecution has duly proved the electronic record Ex.PW.35/2 to Ex.PW.35/8 and Ex.PW.36/1 to 36/5. 295. The technical flaw whereby on four occasions double entries have been recorded are explainable, in that, they are double entries pertaining to the called and caller numbers. Even otherwise as held in Ana Marcolino (Supra) the malfunction is not sufficient to cast a doubt upon the capacity of the computer to process information correctly. It does not establish in any way that the capacity of. the computer to process, store and retrieve information used to generate the statement, tendered in evidence, was effected. CONCLUSIONS WHICH EMERGED FROM THE MOBILE PHONES, SIM CARDS RECOVERED DURING INVESTIGATION AND THE RECORDS OF THE CALL DETAILS OF THE VARIOUS TELEPHONE NUMBERS. 296. For facility, we have extracted in tabular form the person, cell phone number and IMEI number of the mobile instrument recovered. Same is as under:- DELHI HIGH COURT 297. From the call details of the various telephone numbers, the following position emerges:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at 11:32:40 hours, a call was made from this number to the mobile No. 9811573506 i.e. the number recovered from the hand of Afzan Guru. d) Call details of the SIM card pertaining to mobile No. 9810446375 recovered from the house of Afzan showed that this SIM card was used on the instrument 350177402325262 i.e. the instrument recovered from the hand of Afzan when she was arrested, which instrument, in turn was used for operation of the SIM card pertaining to mobile No. 9811573506. e) Mobile No. 9810446375 was activated for the first time on 2.11.2001 and first call made was to accused S.A.R. Gilani on his mobile No. 9810081228. Thus, two mobile numbers, therefore, remained constantly in touch. f) Mobile No. 9810446375 remained constantly in touch with mobile No. 9811489429. g) On 6.12.2001 the mobile No. 9810446375 was twice in touch with a satellite phone 8821651150059. Again on 7.12.2001 two contacts were made over these two phones. h) The user of the number 9810446375 was stopped with effect from 7.12.2001. i) The SIM card pertaining to the mobile number 9810446375 was used in the instrument bearing No. 350177402325260 from 27.11.2001 till its disuse. Their instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Bhushan at about 6 P.M. along with the laptop, ₹ 10 lacs and the mobile phone recovered from the truck at Srinagar. From the testimony of PW-66 and PW-64, it emerges that disclosure statement of accused Mohd. Afzal Ex.PW-64/1 was recorded followed by the recording of a disclosure statement being Ex.PW-64/2 made by accused Shaukat. In the said disclosure statements, accused Mohd. Afzal disclosed that he was a surrendered militant, was a cousin of accused Shaukat. He was in contact with Tariq, who was an active militant of Jaish-e-Mohd. and on his instigation, he met deceased terrorist Mohd., a Pakistani citizen, who along with his associates were assigned the task of carrying out "Fidayeen attack" in Delhi. He instructed Shaukat to work for the community. He was introduced to Ghazi Baba, the supreme commander of Jaish-e-Mohd. Shaukat arranged for an accommodation at boys' hostel at Christian Colony where he brought Mohd. He and Shaukat received money. The slain terrorists were Pakistani citizens and were brought to Delhi by him. He had arranged for accommodation at A-97, Gandhi Vihar. Arms and ammunitions were brought to Delhi by the terrorists. Meeting was or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or mixing the explosives were made, the place from where the car, motorcycle, red light and SIM cards were purchased. 303. We have noted above the testimony of the various witnesses in this respect, but before we analyze the same, we may deal with the legal submission made by the counsel for the accused persons, on the basis of which they contended that no credence could be placed on the evidence of the said witnesses. The argument was based with reference to the fact that no test identification parade for identification of accused Mohd. Afzal, Shaukat or Gilani was got conducted qua the witnesses who identified them. It was argued that it was highly improbable and unnatural for alleged landlords and shopkeepers who had seen the accused persons as per their own testimony only once or twice to have recognised them. Even in respect of the identification of the deceased terrorists with reference to their photographs as the persons who accompanied accused Mohd. Afzal at the time when he purchased various articles or were seen in the premises at Christian Colony, Gandhi Vihar and Indra Vihar, it was submitted that an identification by mixing up photographs ought to have been conducted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to exceptions, when for example, the Court is impressed by a particular witness on whose testimony, it can safely rely. After all, the identification parade belongs to the stage of investigation and there are no provisions in the Code of Criminal Procedure which make it mandatory for the Investigating Agency to conduct a test identification parade, nor is there any provision which confers right upon the accused to claim one. We may note that a test identification parade does not constitute a substantive evidence and they are governed by Section 162 Cr.P.C. 307. In Malkhan Singh's case (supra), the Hon'ble Supreme Court cited with approval its earlier observations in an unreported judgment of Hon'ble Supreme Court in Criminal Appeal No. 92/56, Prakash Chand Sogani v. The State of Rajasthan and it was held : "It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. The State of Rajasthan (supra), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if prosecution fails to hold an identificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimony of PW-31 and PW-32 establishes that accused Mohd. Afzal had rented the second floor of house No. 281, Indira Vihar from PW-32 who was the owner thereof on 9th December, 2001. Testimony of PW-32 establishes that he had seen 5 or 6 persons coming to the rented accommodation on 11th December, 2001 and on 12.12.2001 Mohd. Afzal left the premises with some bags after putting lock and never returned. Testimony of this witness established that on 16.12.2001, in the presence of Mohd. Afzal and Shaukat, who were brought to the place, keys of the premises were broken. When Mohd. Afzal left the premises, he had locked the same and Mohd. Afzal did not produce the key. On search of the premises at 281, Indira Vihar detonators, silver powder, sulphur, ammonium nitrate in huge quantity was recovered. He witnessed the search and seizure recorded in seizure memo Ex.PW-32/1. His testimony further establishes that the police seized motorcycle No. HR-1SK-3122 vide seizure memo Ex.PW-32/2 in his presence. The witness stated that Ex.PW-1/20 to 24 being the photographs of the deceased terrorist were persons whom he had seen with Mohd. Afzal in the premises on 11.12.2001. 312. The important fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed from his testimony that on 13.12.2001 accused Mohd. Afzal, Shaukat and 4 more persons had left the premises around 10 A.M. They left in an Ambassador Car, Mohd. Afzal came back to the premises and left. It stands established that it was Mohd. Afzal who was in legal and physical possession of the second floor of the premises in question. On 16.12.2001, the lock was broken and the articles mentioned in seizure memo Ex.PW-34/1, 34/3 and 34/4 to which he was a witness were recovered. It thus stands established that from the premises Sulphur packets, Sujata mixer grinder, a plastic bucket containing a mixture of Chemicals were seized, samples whereof were taken and seized. It stands established that electronic detonators, pressure detonators, silver powder, ammonium nitrate, police uniforms, battery cells, starters, old earphones were recovered. PW-34 lives in the same house. He had categorically deposed that terrorist Mohd. was the other person whom he had seen staying in the second floor and he had seen Shaukat visiting the house. This part of his testimony went unchallenged. Qua this witness it cannot be said that his identification of terrorist Mohd. by the photograph PW.1/20 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zal and deceased terrorist Mohd. as the persons who came to his shop and purchased a motor cycle from him. No infirmity to the identification of accused Mohd. Afzal by this witness can be inferred nor can it be said that identification by this witness of deceased terrorist Mohd. does not inspires confidence. It is a fact that when a person would purchase a motorcycle, he would be with the seller for at least 15 to 20 minutes examining the vehicle being purchased, discussing its condition, settling the price and thereafter completion of the documents. The seller would not have a fleeting glance at the buyer. He would be seeing the buyer over a sufficient period of time so as to have a lasting impression on his memory about the physical attributes and the facial contours of the person. It thus, stands proved that accused Mohd. Afzal was the one who was present at the time when the motorcycle was purchased and possession thereof was taken. We have no reason to doubt the testimony of this witness that deceased terrorist Mohd. had accompanied Mohd. Afzal when the motorcycle was purchased. 318. From the testimony of PW-37 and PW-38, it stands established that accused Mohd. Afzal and Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohd. Afzal had accompanied deceased terrorist Mohd. when the car was purchased. While cross-examining PW-20 accused Mohd. Afzal prevented his counsel from cross-examining the witness in respect of his presence when the car was sold because he admitted the said fact. In his statement under Section 313 Cr.P.C., accused Mohd. Afzal admits that he had accompanied Mohd. when the car was purchased. From the testimony of PW-20, it therefore, stands established that accused Mohd. Afzal was present with the slain terrorist Mohd. who purchased the car on 11.12.2001. 320. PW-40 deposed that on 6th December, 2001 accused Mohd. Afzal accompanied by the person whose photograph was Ex.PW-40/2 (Hamja) had visited his shop and ordered for 50 Kgs. of ammonium nitrates. Delivery was taken on 7th December, 2001. He further deposed that in his presence, accused Mohd. Afzal was brought by the police to his shop and proved the pointing out memo Ex.PW-40/1. We are satisfied that since this witness had dealt with accused Mohd. Afzal twice as a customer on 6.12.2001 and thereafter on 7.12.2001, he had sufficient interaction to recognize accused Mohd. Afzal and remember him on 17.12.2001 when the police to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament House Complex. 323. PW-43 deposed that he had effected the sale of a Sujata Mixer Grinder to accused Mohd. Afzal on 7.12.2001. He deposed that on 17.12.2001, the accused was brought to his shop and in his presence pointed out the shop. He confirmed that he had sold the mixer grinder to accused Mohd. Afzal. This witness proved the cash memo book and it showed that a Sujata Mixer Grinder was sold by him on 7.12.2001. He identified that the mixer grinder recovered from A-97, Gandhi Vihar was sold by him. Nothing has been brought out to dis-credit this witness qua his identification of accused Mohd. Afzal and the only argument pressed in aid was the non-conduct of test identification parade. We may deal with his testimony in a different way. It has beer, proved by the prosecution that a Sujata Mixer Grinder was recovered from the premises A-97, Gandhi Vihar. This witness identified that Ex.PW-72 i.e. the recovered mixer grinder was the one sold by him. This part of his testimony went unchallenged. He produced his bill book which had recorded sale of a mixer grinder on 7.12.2001. It, thus, stands established that the mixer grinder in question was sold by him and it reached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent corroboration of the testimony of this witness is available. We do not take into account his testimony. We may lodge a caveat here. While discussing the call details, We had noted that the mobile No. 9811489429 was used in the instrument No. 449269219639010 recovered from deceased terrorist Raja and was then used in the handset having number 350102209452430 i.e. instrument recovered from truck at Srinagar. SIM card was never found. As would be noted later, Mohd. Afzal in his confession admitted ownership and possession of this number. We may thus not be understood as having recorded a finding that this number has no evidencary value. 326. PWs 15 to 20, 26 to 29, 31 to 34, 37, 38, 40, 41, 42, 44/49, 52 and 53, whose evidence we have discussed are independent witnesses and do not spring from sources which are tainted. Facts deposed by them not only lend corroboration but even assurances to the Court about the truth of what they deposed. Except for the identification of the deceased terrorists by PW-20, PW-29, PW-37, and PW-40 from whose testimony it is evident that they spent at least 15-20 minutes with accused Mohd. Afzal and the terrorist Mohd. (in case of PW-20, 29 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 6.11.2001. The SIM card of this number was used in the handset recovered from deceased terrorist Mohd. and Raja. On 13.12.2001 it was used on the handset recovered from the truck when accused Afzal and Shaukat were intercepted in the truck at Srinagar. Afzal for the first time took on rent premises at 281, Indra Vihar in the first week of November, 2001 coinciding with the activation of mobile No. 9811489429. This number was regularly in touch with the number of Shaukat Gilani and the terrorists. All these proved facts lead to only one hypothesis that this was the number of accused Afzal. We have already noted that the SIM card of this number was used on the mobile sets recovered from deceased terrorists Mohd. and Raja. This establishes frequent contact between accused Afzal and the terrorists. It also establishes that accused was in touch with the same satellite number as was in touch by the deceased terrorists. The learned Special Judge has relied upon eye witness evidence to hold that Afzal was interacting with the terrorist. We have preferred to use the unimpeachable evidence pertaining to the use of mobile numbers, their Sim cards and handsets. Our conclusion is the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. On 17.12.2001 at the Special Cell he had identified that the persons whose photographs were Ex.PW-40/2, PW-45/1, PW-41/5, PW-29/5 and PW-45/2 (being photographs of the deceased terrorists) were the ones who used to visit Shaukat and Afzan. He deposed that in the Special Cell, there was one more person sitting there whom he did not identify. He was allowed to be put a leading question and in response thereto he stated that having seen accused SAR Gilani pointed out to him, it was correct that he had told the police that he had also seen Gilani visiting the house of Shaukat. 333. In cross-examination, the witness admitted that he had not got done police verification when accused Afzan had come to take the house on rent because she had been living in the same area four to five houses away from his house. 334. From the evidence of this witness, prosecution alleges that it stands proved that Afzan had a sinister motive in not telling her true name to PW-45 when she took the premises on rent, and that accused S.A.R. Gilani had been visiting the house of Shaukat, and that terrorists were also visiting the house. 335. In our opinion, nothing incriminating against either accused Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty cards, one of Xensa Web City and other of Cyber Tech Computer Hardware. Testimony of PW-25 and PW-50 establishes that the cards pertaining to Xensa Web City were fake. Testimony of PW-59, Sh. N.K. Aggarwal, Sr. Scientific Officer, CFSL; PW-72, Sh. Vimal Kant, a computer engineer; PW-73, Sh. Krishan Shastri from bureau of police research at Hyderabad; and PW-79, Sh. M. Krishna, Government examiner of questioned documents establishes that stored in the memory of the laptop was a file which contained the format of the identity card pertaining to Xensa Web City recovered from the deceased terrorists and that the said identity cards were prepared by taking print outs from the laptop in question. Also stored was a file from which the fake Home Ministry Sticker pasted on the wind screen of the Ambassador car was recovered. The testimony of these witnesses, inter alia, establish the fact that history of the use of a computer is reflected in the "REG" file which is an internally registering file of the operating system. The "DAT" file could be edited and the date and time setting of a computer could be edited, but if that was done, it would be reflected in the history ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as last accessed on 21.1.2002 but that does not mean that there was interpolation made in the computer, much less interpolation pertaining to the file having the format of the identity card and the writing of the fake Home Ministry Sticker recovered from the car used by the deceased terrorists. It is important to note that PW-72 worked on the computer to retrieve information up to 29.12.2001 and had given the computer print out to the police as retrieved from the computer pertaining to the format of the identity card and the fake Home Ministry Sticker. Thus, the file containing these two documents, being created by way of interpolation on 21.1.2002 is ruled out. Secondly, PW-79 had categorically stated in response to a court question that no alterations had been made as none were recorded in the history of the computer when it was accessed on 21.1.2002. Further, the report Ex.PW-73/1 shows that the WIN386.SWP5 was accessed last on 22.12.2001 and was last written on 21.1.2002. Now, a file cannot be written upon without being accessed is the question which needs to be answered. The answer would be found in the testimony of PW-79 where in response to a court question, the witness depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question cassette had a lot of background noise and he could enhance the cassette speech to make it audible by using computer software. The taped conversation between accused Shaukat and accused Afzan was not sent to this witness. PW-48 deposed that he could not carry out the auditory and voice spectrographic analysis of the taped conversation between accused S.A.R. Gilani and his brother because the voice was inaudible due to high inferring background noise and hence could not be compared. He, however, could analyze the taped conversation between accused Shaukat and accused Afzan and deposed that the taped conversation was the probable voice of the same person whose sample voice was sent to him for analysis. On being cross-examined, the witness stated that as mentioned in his report, the tape containing the recorded conversation between accused Shaukat and Afzan was of two minutes and sixteen seconds as was noted by him in the report. 340. In her statement recorded under Section 313 Cr.P.C. accused Afzan admitted having talked to her husband on the mobile phone 9811573506 but said that this conversation she had when she was in the police cell. The call in any case stands adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Caller: O.K. Conversation between accused Shaukat Hussain Guru (Caller) and Navjot Sidhu alias Afshan Guru (Receiver) 342. Prosecution relied on two parts of the conversation (underling by us) namely when Afzan tell Shaukat not to speak over the phone and the part of the conversation where in response to the query ''whether anyone had come?", she had responded that a car was standing downstairs to infer that it showed that Afzan knew that she and her husband were under some kind of a surveillance by the police being involved in the attack on Parliament House, which is an incriminating circumstance. If it is the correct transcript of the talk, there can be no doubt that Shaukat and Afzan were talking between the lines. Afzan was scared. Certainly, an inference may be drawn she was concerned about the safety of Shaukat. But does it probabilise her involvement in the conspiracy or attributes knowledge of the conspiracy to her. In the context of law of conspiracy and proof required, we shall deal with it a little later. 343. As regards the conversation between Gilani and his brother the call is admitted, the talk is admitted and the duration of time is admitted. Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defense. 347. Alternatively, even assuming that the transcription of the talk as relied upon by the prosecution is correct, it leads one nowhere. Prosecution relies on one part of the talk as such being incriminating against accused S.A.R. Gilani. It is:- Caller : What have you done in Delhi (Delhi kaya karu). Receiver It is necessary to do. (Eh Che Zururi). 348. To the query of his brother "Yeh Kya Karoo" to which the response was "Eh Chhe Zururi", the prosecution alleges that the conversation showed that Gilani was involved in the conspiracy in the attack on Parliament House. Prosecution alleges that when his brother asked him what had be done in Delhi, he replied this was necessary. This inference as drawn by the prosecution, to our mind, does not hold good. Firstly, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Afzal, and recorded his supplementary disclosure Ex.PW-64/3. Accused Mohd. Afzal, Shaukat and Gilani expressed the desire to make their confessional statement. As per the provisions of POTO, confessional statements could be recorded before a police officer not below the rank of a Superintendent of Police, he moved an application on 20.12.2001 before DCP Ashok Chand, who directed the presence of the accused persons before him the next day i.e. 21st December, 2001. He produced the three accused persons before DCP Ashok Chand as directed by him at the Alipur Road Mess, where first accused S.A.R. Gilani was called in at about 11.30 A.M., and thereafter he produced accused Shaukat at about 3.30 P.M. and finally accused Mohd. Afzal at about 7.10 P.M. PW-60 Ashok Chand corroborated the aforesaid facts and stated that accused S.A.R. Gilani refused to make a confessional statement which fact was duly recorded by him in Ex.PW-60/3 and PW-60/4. Accused Shaukat expressed his willingness to make a confessional statement and gave in writing that he was not under any duress which statement was proved as Ex.PW-60/5. Confessional statement was thereafter recorded as dictated by accused Shaukat in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his chamber. They were in the police van when the IO got recorded their statements. The witness denied that the accused persons were brought to his court only once together just to show their faces to him. The witness in his cross-examination stated that he did not find that the accused persons were under any threat or duress. 353. Prosecution alleges that the testimony of PW-60, PW-63, PW-80 clearly establishes that accused Shaukat and Mohd. Afzal had voluntarily made confessional statements. Truthfulness of the confessional statements, according to the defense, was evidenced by the fact that no confessional statements of accused SAR Gilani was recorded for he refused to make one. If the prosecution had to fabricate the confession they could have well fabricated or obtained under duress one from accused SAR Gilani against whom even otherwise the prosecution alleges there was much less direct evidence as compared to the evidence available against accused Shaukat and Mohd. Afzal. 354. The argument of the defense in rebuttal was that the testimony of PW-60 showed that he did not give much time to the accused to rethink after he had warned them of the consequences of their confessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dling of arms and ammunitions. He returned to India on instructions to destroy communication networks etc. but since the security forces were tipped off, he came to Delhi along with Shaukat in the year 1988. He did odd jobs and completed his graduation from Delhi University in the year 1993-94. While studying he met Abdul Rehman Gilani, who was pursuing his post graduation course. In the summer of 1993-94 on the advice of his family, he surrendered before the BSF and returned to Delhi where he worked till 1996. He went back to Sopore where he worked as Commission Agent for medical and surgical goods in the year 1996. He came across Tariq, who claimed to be a doctor. They used to discuss current state of affairs in Kashmir. Tariq disclosed to him that he was an active militant of Jaish-e-Mohd. and motivated him to join the Jehad for liberation of Kashmir. Tariq introduced him to Ghazi Baba, who was equipped with wireless set and satellite phone. Even Ghazi Baba motivated him and gave him literature containing speeches of Maulana Masood Azhar. He agreed to work for them and was assigned the task of providing a safe hide out for the Fidayeens in Delhi. He was introduced to Mohd. and H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn it to Ghazi Baba. They remained in touch on the mobile phone; his i.e. Afzal's being 9811489429, Mohd.'s phone No. being 9810693456. Over the phone on 13.12.2001, at about 10.40 P.M. he was told by Mohd. to watch television and note down the position of various VIPs in Parliament House. Since he was in the market, he contacted Shaukat on Shaukat's mobile phone 9811573506 and asked him to watch television. Immediately thereafter he received a call from Mohd. that the attack was on and he in turn rang up Shaukat and conveyed the said information. He and Shaukat left for Sri Nagar in Shaukat's truck HR 38E 6733. They were arrested by the police on 15th December, 2001 along with the lap top and ₹ 10,00,000/-. He was brought back to Delhi where he got recovered explosives and he was repentant for his actions. 357. Shaukat in his confessional statements Ex.PW-60/6 stated that he was born in 1967, completed his schooling from Sopore in 1988 and came to Delhi for higher studies. He came into contact with SAR Gilani who was from Baramulla and was studying in post-graduation in the University of Delhi. In 1997, he started fruit business but suffered losses. He got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal proceeding and such a confession has to be thrown out and not taken into evidence at all. As per the mandate of Section 25, confession made to a police officer cannot be proved. Under Section 26, confessions made by a person to a Magistrate while in the custody of a police are admissible in evidence. Section 27 which has been held to be in the nature of an exception to Sections 25 and 26 of the Evidence Act made admissible in evidence fact distinctly discovered pursuant to a confession made to a police officer (we shall be dealing with Section 27 separately a little later). Section 30 makes a confession admissible against a co-accused. 359. Admissions and confessions are exceptions to the hearsay rules and are placed in the category of relevant evidence in Section 17 to 30 of the Evidence Act presumably on the premise that being declarations against the interest of the maker, they are probably true. 360. Section 32 of POTA makes admissible confessions made to a police officer not lower in rank than a Superintendent of Police. It provides for the manner in which the confession has to be recorded. Section 32 reads as under:- "32. Certain confessions made to police off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds established that the confession was made before the Deputy Commissioner of Police i.e. a person not lower in rank than a Superintendent of Police. It was recorded in writing, and therefore, Sub-section (1) of Section 32 stands complied with. It is further evident that accused Mohd. Afzal and Shaukat were explained by PW-60 that they were not bound to make the confession and if made, it could be used against them. In spite of warning, the .two agreed to make the confessional statements, and therefore, Sub-section 2 of Section 32 also stands complied with. Testimony of PW-60 establishes that he directed production of the accused persons for making the confessional statements at the Alipur Road Mess (it is at a distance of about 15 kilometers from the Special Cell at Lodhi Colony) and there is nothing on record that the atmosphere was not free from threat or inducement. It is not the case of accused Mohd. Afzal and Shaukat that they did not know English language. As per their confessions, they are graduates. They have signed in English, therefore, Sub-section 3 of Section 32 also stands complied with. Both the accused persons were produced before PW-63, the Chief Metropolitan Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other application where he denied making any confession at all. Again, what was stated in the application was at variance with the line of cross-examination of PW-60. 366. Learned counsel for the defense urged us to reject the confessional statements as not being voluntary on the alternative submissions that the two confessional statements were at variance with each other and were at variance with the evidence proved on record. 367. It is settled law that where the prosecution has otherwise successfully established facts which are stated in a confessional statement, it would be a good ground to presume that the confessional statement was voluntary. The test is not to minutely disect a confessional statement and compare it with the proved facts on record. The test is that if broadly the facts otherwise proved coincide with the facts stated in the confession, it would be sufficient re-assurance that the confession is voluntary. See , Davender Pal Singh v. State of NCT, , Lal Singh v. State of Gujarat. However, there are bound to be variations here and there in confessional statements made by two co-accused and it would be unsafe to compare the two confessions incident wise or fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal statement is admissible in evidence against a co-accused but the said confessional statement would be the one which is recorded as per Section 26 before a Magistrate. 372. The embargo under Section 25 of the Evidence Act that a confessional statement made to a police officer cannot be proved against the maker is removed in the instant case by Section 32 of POTA. We have extracted above Section 32 of POTA and from Sub-section (1) thereof, it is apparent that notwithstanding anything in the Code or in the Indian Evidence Act, confessions to a police officer not lower in rank than a Superintendent of Police would be admissible at the trial of such person for an offence under the Act. The language of Sub-section (1) of Section 32 clearly makes the confession admissible at the trial of the maker. The legislature has clearly used the word "such person". 373. When Section 32 of POTA was enacted, the legislature was aware of the provisions of the Code of Criminal Procedure and the Evidence Act. Legislature was aware that confessions made to a police officer are inadmissible in evidence. The Legislature was further aware that under Section 30 of the Evidence Act, confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously could not be cross-examined at the trial, the Legislature amended TADA by Act No. 3 of 1993 and deleted Sub-clause (c ) of Section 21(1) of TADA. However, intending only to remove the legislation pertaining to the statutory presumption which was created against an accused, based on the confessional statement of a co-accused, the Legislature by the same Act made a corresponding amendment in Section 15 of TAPA. The amended Section reads as under:- "15. Certain confessions made to Police Officers to be taken into consideration. Notwithstanding anything in the Code or in the Indian Evidence Act 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds of images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made there under: Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull bench consisting of seven Judges of the Lahore High Court in the judgment reported as AIR 1929 Lahore 344, Sukhan v. Emperor, on a reference made by two Judges held that the expression "fact" as defined by Section 3 of the Evidence Act included 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. It was held that the phrase "facts discovered" used in Section 27 in the former sense i.e. it referred to a material and not a mental fact. It was held as under:- "The expression "fact" as defined by Section 3 of the Statute 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. It is in the former sense that the word is used in Section 27. The phrase "fact discovered" Used by the legislature refers to a material, and not to a mental fact. The fact discovered may be the stolen property, the instrument of the crime, the corpse of the person murdered or any other material thing; or it may be a material thing in relation to the place or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affar Hussain Dastagir v. State of Maharashtra. The court was considering the following statements:- "I will point out one Gaddi @ Ram Singh of Delhi at Bombay Central Railway Station at Ill-Class waiting hall to whom I had given a bag containing Diamonds of different sizes more than 200 in number." 389. Pursuant to the said statements, the accused, maker of the statement led the police to the waiting hall and from amongst a crowd of people pointed out accused Gaddi from whom a packet containing 271 diamonds was found. However, there was evidence on record that the police had already received information that accused Gaddi had the diamonds with him. Issue that came up for consideration in the context of applicability of Section 27 was that the information which led to the discovery of some fact was given by the maker of the statement and the police was not aware of the said fact earlier. The High Court had taken the view that the mental fact of the maker of the statement that the diamonds were with the accused Gaddi, who was at the Central Railway Station would be admissible in evidence though recovery of the diamonds at the instance of the maker of the statement was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 what 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 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. But even apart from the admissibility of the info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum." 394. Counsel contended that it was clear from the judgment of the Privy Council in Pulukuri Kottaya (Supra) that the fact discovered was not the object found but was the place from which the object was produced and the knowledge of the accused to this fact. This, he contended was explained and amplified in Damu's judgment. This, according to the learned counsel, would make admissible under Section 27 of the Evidence Act all information received by the police from the accused persons which was not within the knowledge of the police if the said information was subsequently proved. 395. We are afraid, the submission is without any merit and the judgment of the Hon'ble Supreme Court in Damu's (Supra) case, cannot be read in the manner sought to be projected by the prosecution. The observations in para 35 on which the counsel relied has to be understood in the context in which it was applied on the facts of the case. The following para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 398. We have rechartered the journey undertaken by the Special Judge POTA. What have we discovered? What have we failed to discover which the learned Special Judge POTA discovered when he undertook his voyage. 399. ACCUSED NO. 1 MOHD. AFZAL. 1. Motivated by Tariq, under instructions of Gazi Baba accused Mohd. Afzal, on 6.1-1.2001 acquired the mobile No. 9811489429 which was activated and was used on the handset having IMEI No. 449269219639010 which was recovered from the deceased terrorist, Rana. The user of this number was discontinued on 29.11.2001. It was again put to use on 7.12.2001. On 13.12.2001, the SIM card pertaining to this number was used in the handset No. 350102209452430 i.e. the instrument recovered from the truck at Srinagar when Afzal and Shaukat were intercepted. In his confessional statement, accused Afzal admitted that he was using the mobile No. 9811489429. This establishes that accused Mohd. Afzal had passed on the instrument used by him earlier to the terrorists and was ultimately recovered from the deceased terrorist, Rana. 2. Mohd. Afzal had taken on rent the second floor of house No. A-97, Gandhi Vihar in the first week of November, 2001 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munition was also recovered from this premises. 7. Terrorist Mohd. had purchased the Ambassador Car bearing No. DL-3C J 1527 Mohd. Afzal had accompanied terrorist Mohd. when the car was purchased. This car was used by the terrorist to make entry into Parliament House. 8. Afzal along with Shaukat had taken on rent a room in the boys' hostel at B-41, Christian Colony on 7th or 8th November, 2001 where the deceased terrorist Mohd. had resided. 9. Mohd. Afzal had purchased sulphur, aluminium powder and Ammonium Nitrate, which was used for making explosives used by the terrorists. The Chemical compositions of the explosives in the car bomb were the same Chemicals which were purchased by him and were recovered from the two premises, A-97, Gandhi Vihar and 281, Indira Vihar. 10. Afzal was involved in the purchase of the motorcycle, which was recovered from the premises A-97, Gandhi Vihar. 11. Afzal was in Delhi, evidenced by the calls made by and on his mobile phone No. 9811489429 till noon when Parliament was attacked and he there-after absconded along with Shaukat and was arrested from Srinagar in the morning of 15th December, 2001. 12. The laptop which was recovered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may be true that Shaukat was Afzal's cousin. Had it been a case where Afzal had taken only one room on rent, it could have been argued that Shaukat visiting his cousin, was not an incriminating circumstance but, where three premises are taken on rent, this innocence cannot be inferred. 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 hide outs. 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. 9. The confessional statement of Shaukat implicating him in the attack on Parliament House gave his role. The confession stands corrobor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence against S.A.R. Gilani that he was involved in the conspiracy. After all S.A.R. Gilani was known to Shaukat and Afzal. When one acquires a mobile phone, it is but natural that one would test it for use. What other number would one connect other than that of a known person. By itself, with nothing more, we are afraid that conviction cannot be sustained on this evidence. 406. Admittedly, as noted above, there is no evidence of Gilani being in telephonic touch with any of the terrorists. There is no evidence that Gilani was instrumental in procuring the hide outs or the Chemicals used for manufacture of explosives. There is no evidence of Gilani's involvement in procuring arms and ammunitions. Prosecution sought to rely upon the testimony of PW-45, landlord of Shaukat that he had seen Gilani visiting the house of Shaukat and this was an additional evidence to show his involvement in the conspiracy, particularly when Shaukat's landlord had stated that 4 or 5 persons started visiting Shaukat's house 2 or 3 days prior to 13.12.2001, and these persons were the deceased terrorists. 407. While discussing the evidence of PW-45, Shaukat's landlord, we had noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, it has to be established by cogent evidence that the accused was a part of the conspiracy and this would require proof of some participative acts, which may not be overt but could be gathered from circumstantial evidence and in appropriate cases a high degree of consciousness may be sufficient. Evidence on record does not bring out a high level of consciousness qua S.A.R. Gilani in the conspiracy. ACCUSED No. 4 AFZAN GURU @ NAVJOT SANDHU. 414. As far as accused Afzan Guru is concerned, except for her being the wife of accused Shaukat what has been brought on record against her by the prosecution is firstly the confessional statement of Shaukat and Afzal, which we have already held is inadmissible against her. 415. Secondly, from the information retrieved from the laptop, prosecution contended that the terrorists had contemplated preparing an identity card for a woman and this lends credence to the fact that Afzan was involved in the conspiracy. However, to our mind, this fact could equally be indicative that the conspirators did not associate any woman in the conspiracy. 416. Thirdly, we have the evidence that five or six persons who were identified by the landlord as the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence, position would have been different. Again, we may note that no role whatsoever has been assigned to accused Afzan as a participative member in the conspiracy. She provided no logistics; she procured no hide outs; she procured no arms and ammunitions; she was not even a motivator. 420. The two pieces evidences against Afzan, in our opinion do not create circumstances from which an inference of guilt can be firmly and cogently established. They do not unerringly point towards the guilt of Afzan. Law requires proof of facts establishing circumstances which taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the accused was involved. Evidence should not only be consistent with the guilt of the accused but should in addition be inconsistent with his innocence. 421. We accordingly hold that the prosecution has brought home its case of conspiracy against accused Mohd. Afzal and accused Shaukat but has failed to prove the case against accused SAR Gilani and Navjot. 422. We accordingly acquit accused S.A.R. Gilani and Afzan Guru @ Navjot Sandhu from all the charges. 423. Though during arguments, cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the terrorists. It was not even argued that it was not the intention of the conspirators to attempt to kill anyone who came in their way. We hold accused Afzal and Shaukat guilty of having committed an offence under Section 307 r/w Section 120-B IPC. 431. That takes vis to the POTA offences. Section 3 of POTA reads as under:- "3. Punishment for terrorist acts. - (1) Whoever,- (a) 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 substances 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, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defense of India or in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n lakh, or with both. Explanation. - For the purposes of sub-section, "terrorist organisation" means an organisation which is concerned with or involved in terrorism. (6) Whoever knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which may extend to imprisonment for life, or with fine which may extend to rupees ten lakh, or with both. (7) Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines witness, or any other person in whom witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine." 432. Counsel for the defense argued that the terrorists act could only be committed if an act or a thing was done by using bombs, dynamites or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other Chemicals or by any other substances of a hazardous nature or by any other means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject, especially as distinct from a living sentient being; an action, activity, concept or thought". 436. Action, activity, concept or thought being "thing", the actions of accused Mohd. Afzal and Shaukat in procuring explosives and Chemicals for manufacture of explosives and participating in the preparation of explosives would be action amounting to doing of a thing using explosives intending to threaten the unity, integrity, security or sovereignty of India. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence punishable under Section 3(2) POTA. 437. The charge of conspiracy against accused Afzal and Shaukat to attack the Parliament of India stands established and we, therefore, hold them guilty of having committed the offence under Section 3(3) of POTA. 438. Admittedly, the five persons, who attacked Parliament, committed terrorists acts and indeed were terrorists. Accused Afzal and Shaukat have been proved by the prosecution of harbouring the terrorists in the hide outs procured by them. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence under Section 3(4) of POTA. 439. Section 4 of POTA reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or (b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished, - (i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (ii) in case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 442. Section 2 of the Act defines explosive substance as under:- "2. Definitions. In this Act, - (a) expression "explosive substance" shall be deemed to include any materials for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war. We agree with the submissions made by the prosecution that for the offence of waging war, accused Mohd. Afzal and accused Shaukat Hussain Guru deserve the higher penalty. We accordingly modify the sentence imposed on the said two accused persons under Section 121 IPC by awarding death sentence to these two accused. The rest of the sentences imposed by the learned Special Judge stand affirmed, 449. In view of the decision in the murder reference, we allow Crl.A. No. 19/2003 filed by S.A.R. Gilani as also Crl.A.No. 12/2003 filed by Navjot Sandhu @ Afzan Guru. Since we have allowed the appeal filed by S.A.R. Gilani, we need not decide the miscellaneous application filed during arguments praying that S.A.R. Gilani be Examined again. Crl.A.No. 43/2003 filed by Mohd, Afzal and Crl.A. No. 36/2003 filed by Shaukat Hussain Guru stand dismissed. 450. We dismiss Crl. A. No. 80/2003 filed by the State praying that the acquittal of accused Navjot Sandhu under Section 120/ 121/121-A/122/302/307/120-B IPC, Section 3/4 of Explosive Substances Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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