9911796707
TMI Blog2003 (10) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 default R.I. for 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe of these three Sections has been interpreted by the Hon'ble Supreme Court 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 SECT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs where the question of confirming a death sentence is involved the Court has 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 safeguard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the popular imagination and belief, parliament represents the nations will, it symbolises the spirit and the soul of the Indian people. It is the supreme law making body. From Kashmir 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was in charge of Escort-1 vehicle. Around 11.20 AM the Vice President had to leave for his residence. Carcade of the Vice President stationed itself near Gate No. 11 i.e. the Vice President's gate. At about 11.35 AM, one white Ambassador 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. The fact that aforesaid 9 persons were killed as a result of exchange of fire and the aforesaid 16 persons were injured was not disputed at the commencement of trial. The MLCs of the injured persons and the postmortem reports of the aforesaid dead persons were treated as proved. Before trial commenced, 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 dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orsement, Ex. PW-1/2, which was sent to P.S. Parliament Street through HC Sukhbir, PW.2 for registration of FIR. After registration of the case, HC Sukhbir came back to the spot with the FIR, Ex. PW-1/3. He prepared a rough site plan of the place, of occurrence Ex. PW-1/4. SI Yograj Dogra (PW-4) was deputed by him to conduct investigation at gate No. 1. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the duty officer at PS Parliament Street on 13.12.2001. He received one rukka for registration of FIR from Insp. G.L. Mehta on the basis of which he recorded FIR No. 417/01, copy being Ex.PW.14/1 (original was produced). Witness was not cross-examined. 27. PW-2, S.I. Sanjiv Kumar deposed that he was deputed by the SHO (Sh. G.L. Mehta, PW-1) to conduct investigation at wooden gate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Singh, deposed that he was directed by the SHO (G.L. Mehta PW.1) to conduct investigation at wooden gate No. 5 of the Parliament House. Dead body of one terrorist was lying at gate No. 5, in the right hand of which, was one AK-56 rifle. Personal search of the dead body resulted in recovery of one I-card, Ex.PW3/3. Near the dead body, a hand grenade lever was lying. On the shoulder of the dead body was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gra deposed in line with the evidence of PW.4. He was cross-examined. Questions were put to him in cross-examination suggesting that he was not present at the spot and that no recoveries were effected on the spot. 34. PW.9, HC Sukhbir Singh deposed that on 13.12.2001 he was with the SHO of P.S. Parliament Street when the terrorist attack took place on Parliament House. He was handed over the rukka Ex.PW.1/1, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the police on 17.12.2001. The witness was cross-examined and suggestions were put to him that he had falsely deposed that Ex.PW.2/16 and PW.2/17 were recovered from the pant pocket of Hamja. 37. PW.6 constable Rajesh Kumar deposed that he had taken 184, photographs of the place of occurrence out of which 162 good prints came out, and proved the same along with their negatives as PW. 6/2 and Ex.PW. 6/1 respectively. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since none of the persons in the special cell knew kashmiri language, one Sh. Rashid (PW-71) was summoned to translate the taped conversation. On the same day at about 8.00 p.m. a call was found coming on phone No. 9811573506 and this was also taped. The conversation, in Hindi, was between a man named Shaukat and a woman. He seized the two cassettes on which the two conversation were taped, being Exhibit PW-66/1 and PW-66/2. The Hindi translation of the taped conversation Ex.PW-66/1 was Ex.PW-66/3 and the 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 numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Islam developed. Deceased terrorist Mohd. was introduced to him by Shaukat as being associated with Jaish-e-Mohd. and right hand man of Maulana Ajhar Masood and Gazi Baba. Shaukat had managed a room for Mohd. on tenancy in Christian Colony. Arms had been arranged. Five fidayeen members of Jaish-e-Mohd. being Raja, Rana, Hamja, Hayder and Mohd. had met at the house of Shaukat along with Afzal and Navjot whose name was changed to Afzan Guru. Plan to attack Parliament was discussed. Afzal had a map of Parliament. Plans to 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, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by him from the redial list of the telephone numbers. Cross-examination by accused Shaukat and Afzan Guru pertained to the mobile phone numbers 9811489429 and 9810693456. He explained that missed calls which would be shown on the screen of the instrument when worked upon, would not find mention in the computerised list obtained from the phone companies since these calls did not matured. He denied that Afzan Guru was arrested on 14.12.2001. Accused S.A.R. Gilani cross-examined the witness qua telephone No. 9811489429 and 9810081228. 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, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examined regarding the procedures for taping. Witness was cross-examined about the duration of the call which he had got translated from a Kashmiri boy. Suggestion was put to the witness that he had made interpolations in the calls by erasing and tampering the same, which he denied. 47. PW-71, Rashid deposed that on 14.12.2001, at about 1.30 P.M. he was called to the Special Cell to translate in Hindi a conversation recorded in a cassette which was in Kashmiri language. He heard the cassette and dictated the Hindi translation to SI Harinder Singh (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 deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused Shaukat. No entry in daily diary of the police was made when he left the police station but volunteered to state that entry was made in the daily diary after completing the operation. The truck was stopped and examined at around 10.30 A.M. He did not paste any slip on the briefcase or on the computer or on the mobile phone. A suggestion was put to the witness that Shaukat and Afzan were apprehended by him from different places and the story of recovery was false, which he denied. 50. PW-62 H.C. Mohd. Akbar deposed that he was 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, rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Powder, sulphur was found. Samples were taken out and the Chemicals as well as the samples were seized and sealed, electronic detonators and pressure detonators were also seized and sealed vide seizure memo Ex.PW-32/1. The owner told them that one motor cycle of the accused persons were parked down stairs bearing No. 3122. Motor cycle was seized vide seizure memo Ex.PW-32/2. On 17.12.2001, accused Mohd. Afzal was taken by him to the mortury of Lady Harding Medical College where the said accused identified the five terrorists, identification memo being Ex.PW-76/1. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no recovery was effected. He admitted that since March, 2001 there was a Government notification requiring the shopkeepers selling Sim Card to note down the identity of the persons to whom it is sold. He stated that the articles seized were deposited in the Malkhana of P.S. Parliament Street on the day they were seized. He denied the suggestion that pointing out and recovery memo was prepared at the office of the Special Cell or that no recovery was effected from the accused persons. 55. PW-77, S.I. Lalit Mohan who assisted Inspector Mohan Chand Sharma deposed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-32/1 was prepared in his presence which was signed by him at point 'A'. He told the police that one motorcycle belonging to the accused was standing down stairs. It was seized by the police vide seizure memo Ex.PW-32/2 signed by him at point 'A'. He stated that photographs Ex.PW-1/20 to 24 were photographs of the deceased terrorists whom he had seen in the premises. He identified in Court articles which were recovered from the second floor. On cross-examination by Mohd.Afzal, witness denied the suggestion that only accused Mohd.Afzal had accompanied the police to the 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 nitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house. He accompanied the police to the second floor which was locked. The lock was broken. Sulphur packs were recovered, one Sujata Mixer, one T and some utensils and small gas cylinder and few papers were recovered. The papers contained map of Delhi and a map of Chanakyapuri. 20 plastic jars were recovered. Motorcycle No. 51-E 5768 was also seized by the police. Seizure memo Ex.PW-34/1 bore his signatures at point 'A' and the seizure memo pertaining to the motor cycle and papers seized were Ex.PW-34/2 and PW-34/3. Both the seizure memo Ex.PW-34/3 and PW-34/4 bore his signatures. One plastic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unning a lodge or hostel. He gets police verification done of those to whom he gives, room on rent but gave no information to the police after Ruhail Ali Shah left the hostel on 8.12.2001. He did not suspect anything because several times students keep on changing the hostel. He denied the suggestion that he had not seen Shaukat and Mohd.Afzal at any time or that he saw them for the first time in the police station on 19.12.2001. On being cross-examination, by amices Curiae on behalf of Mohd.Afzal, the witness denied that Mohd.Afzal had not come to take the room on rent. 61. PW-38, Rajnish Kumar deposed that 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging bearing name of his shop. On 17.12.2001 accused accompanied by the police had come to the shop. Pointing out memo Ex.PW-42/1 bore his signatures at point-A. The silver powder packed in poly-bag Ex.PW-51 was the one sold from his shop. On being cross-examined by Neeraj Bansal, amices for accused Mohd.Afzal he stated that what is referred in local parlance as silver powder is actually Aluminium powder. No license is required for its sale. No receipt was issued for its sale as it was a tax paid item. He had no proof of the visit of accused Mohd.Afzal to his shop, volunteered that quantity purchased was so large, therefore, he remembered 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 bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and the relevant receipt was Ex.P-83 which bore his signature at point-A. The witness was not cross-examined by Mohd.Afzal but was cross-examined by amices Neeraj Bansal. In cross-examination he stated that the bill bears signatures of accountant of Sanjay and not Sanjay Jain. He had no receipt evidencing sale of cell phone or sim card to Mohd.Afzal. The sim card sold to Mohd.Afzal was not used by him prior to sale nor was it given to anyone else prior to date of sale. He denied the suggestion that Mohd.Afzal has not visited the shop on 4.12.2001. On being cross-examined by accused Shaukat, witness denied that Shaukat and Mohd.Afzal had not come to 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 Leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to sell the car. He purchased the car in the sum of ₹ 75,000/- on 22.11.2001 and received the original documents pertaining to the car including Form Nos. 29 and 30 in a blank condition. Delivery receipt Ex.PW.18/A was given to him by Satbir Singh on 22.11.2001 itself. He sold the car to Jaggi Motors of Karol Bagh who was accompanied by the Proprietor of Lucky Motors for ₹ 81,000/-. He gave all the papers of the car to the Proprietor of Jaggi Motors along with the car when he received the consideration. The documents for effecting transfer of the car were blank when he sold the car. In cross-examination witness deposed that he did not take receipt of the amount paid by him to Satbir 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the SHO was at Parliament House. He went to Parliament House where he was stopped at the gate by the guards to whom he told the purpose of his visit. SHO, Mr. G.L. Mehta thereupon met him and he told that the car was sold through him. Mr. G.L. Mehta took him to gate No. 11, where the car was standing and he identified that it was the same car. He handed over all documents to Mr. G.L. Mehta who seized the same vide seizure Memo Ex.PW.1/7 which bore his signatures. Documents which were handed over to Mr. G.L. Mehta were Ex.PW.20/4 to Ex.PW.20/8, being photo copy of the I-card purportedly issued by Cyber Tec Computer Hardware in the name of Ashiq Hussain Khan (original of which was recovered from the terrorist Mohd. 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 Ash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hd. Afzal nor by amices appointed on behalf of Mohd. Afzal. He was cross-examined by accused Shaukat Hussain. In cross-examination, witness deposed that it is possible to compare the disputed writing with the specimen writing even if they relate to different words but it was not possible to compare the hand-writing of words with numerals. He stated that individual writing characteristics do not undergo change and consequently writings can be identified. He stated that he did not observe any material diversions in the two hand-writing except for natural variations which he has observed in his report. 77. PW-51, Dharampal, Clerk from the District Transport Office, Faridabad produced the registration record pertaining to truck 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown to him by police and he had given the answer in the affirmative at that time. On 18.12.2001, accused Mohd.Afzal was brought to his shop and pointing out memo Ex.PW-29/1 was prepared which bore his signatures. After sale of the motorcycle, delivery receipt was issued which was Ex.PW-29/2. Portion 'A' to 'A' and 'B' to 'B' were filled by accused Mohd.Afzal and rest of the receipt was filled by him. The signatures of Mohd.Afzal on the delivery receipt were at point 'C'. Receipt book containing Ex.PW-29/2 and PW-29/3 were given by him to the Special Cell o 19.12.2001 which was seized by seizure memo Ex.PW-29/4. Photograph in the judicial file being Ex.PW-29/5 was that of the person who had accompanied Mohd.Afzal and Shaukat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visiting the house of S.A.R. Gilani. On being cross-examined by counsel for S.A.R. Gilani, he stated that it was correct that he entered into 11 months agreement for letting out the house. S.A.R. Gilani had come through a broker, who had told him that S.A.R. Gilani was reliable person. Tenancy was continued after November, 2000 as S.A.R. Gilani's behavior was proper. S.A.R. Gilani was having a mobile phone and not the other phone. Sometimes, telephone calls used to come at the house and some times in the neighbour's house for S.A.R. Gilani. Whenever call was received he used to come to attend the call. He was aware of the fact that S.A.R. Gilani was a Lecturer in Delhi University. Several of his friends and other Lecturers and students used to visit the house. There is common staircase 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the press on table-chair from where he could see the persons coming in the street. He could recognise the persons whose photographs he had identified as he had seen them several times 2-3 days prior to 13.12.2001 coming and going from the house of Shaukat and Afzan Guru. He denied that he was deposing falsely under police pressure. He admitted that he had seen news of Parliament attack on T but stated that he had not seen the face of slain terrorists on T On being cross-examined by Afsan Guru, he stated that there is a second floor in the premises, which is not owned by him, where the owner, a sikh gentleman lives. There is a common staircase which is used by the owners of first and second floor. There is a common letter box outside the house where all the letters of the occupants are put. Once or twice, 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 premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elephone numbers, services whereof were provided by Air-Tel. Certificate Ex.PW-35/1 was issued by him. It gave the details of calls of these telephone numbers. Mobile No. 9810081228 belongs to S.A.R. Gilani. Call details from 1.10.2001 to 14.10.2001 of telephone No. 9810511085 were Ex.PW-35/2, that of telephone No. 9810510816 were Ex.PW-35/3, that of telephone No. 9810565284 were Ex.PW35/4, that of telephone No. 9810693456 were Ex.PW35/5, that of telephone No. 9810302438 were Ex.PW35/6, chat of telephone No. 9810446375 were Ex.PW-35/7 that of telephone No. 9810081228 were Ex.PW-35/8. All call details are computerised sheets obtained from the computer. On cross-examination by counsel for accused Afzan Guru he stated that IMEI number mentioned in the call details pertained to number of a particular mobile set and there are no duplicate sets. Sim number 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igits are assembly code which represent, the model. The next six digits are serial number of the handset according to GSM specification No. 3.03. First 14 digits are significant and the last digit according to GSM specification could be transmitted by the mobile number as zero. Literature pertaining to GSM specification brought by the witness relevant to the code was Ex.PW-78/1. The witness was not cross-examined. 93. PW-56, Const. Ranjit Kumar deposed that on 7.3.2002 he had collected three samples from the Malkhana, Parliament Street, vide the RC No. 7/21 and 8/21 and deposited the same at CFSL, Lodhi Road and that so long as the samples remained in his custody the seals remained intact (these samples related to the Xansa Webcity I-cards and MH stickers). The witness was not cross-examined. 94. PW-57, S.I. Pawan Kumar deposed that he had collected one sealed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce spectrography analysis of voice samples marked C-2(a), C-2(b)( disputed voice of Shaukat) and S-1(a), S-1(b) (specimen samples of voice of Shaukat) in cassettes marked C-1 and S-1 respectively. He received voice samples C-2(c) and C-2(d) (disputed voice of Afzan) and S-3(a) and S-3(b) (samples voice of Afzan). Examination revealed that the voice samples C-2(a) to C-2(b) was similar to S-1(a) to S-1(b) and voice samples marked as C-2(c) and C-2(d) are similar to S-3(a) and S-3(b). Hence his conclusion was that the disputed voice were the probable voice of Shaukat Hussain Guru and Afzan Guru. He deposed that the auditory analysis was not possible as the voice was not audible due to high interfering background noise through recording and hence the voice spectrography analysis could not be done. He deposed that after examining the cassettes he returned the same to the forwarding authority. Report submitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggarwal Sr.Scientific Officer, CFSL, CBI deposed that he had received document which he had marked Q-1 to Q-7 (seven I-Cards recovered from the terrorists) and S-1 to S-2 (prints taken from the laptop) for spectrography comparison. He had used scientific aids like Stereo-zoom, Microscope, TVC, Video-spectral Comparator, ESDA, Transmitted light examination and gave his report Ex.PW-59/8. The document marked Q-1 was the same as Ex.PW-41/8 and Q-2 to Q-7 were the same as Ex.PW-4/2 to 4, Ex.PW-3/3, Ex.PW-2/13 to Ex.PW-2/5 and document S-1 and S-2 were the same as Ex.PW-13/1 and Ex.PW-50/1 and that documents marked as QL-1 to QL-7 were Ex.59/1 to 7. The witness was crossed examined only by the accused Shaukat and Afzan wherein he stated that the documents referred by him in his examination-in-chief were the only documents sent for examination Along with the photocopy of the report of the observation of Mr. Vimal 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hard disc being original, there is no certainty that the material found on a later date, was exactly the material, which may have existed on a previous date? He replied that the question was vague and in the absence of stipulated time period could not be answered. The laptop always remained in possession of Inspector Mohan Chand Sharma when he was not working on it and after finishing his work, he left the same with Inspector Mohan Chand Sharma. He stated that he had no information about the laptop being referred to Microsoft for information. On further cross-examination by the remaining accused, he admitted that back up of complete hard disc was not taken by him. He stated that certain files were backed up/which fact was not mentioned in his report. He said that the report contained his observations and was not a report of processes which were employed. 102. PW-73, Krishan Shastri, Assistant Government 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with another storage media for analysis. He admitted that CMOS chip reflect the date setting and that date setting could be compared with the current time setting but qualified that this was subjected to date setting not being altered. He stated that if date setting was altered, it would remain the same in the system for the earlier files and the change would be reflected in the file created after the change in the systems date. He said that dates of a particular file could not be flushed unless CMOS setting of the date and time were changed. He stated that noting of CMOS setting is essential to verify the date setting of file. He stated that all that he was required to opine upon was the date of creation of a file and of date of last access. He said that it was not possible to alter the date of any particular file unless the system date had been altered. 104. PW-60, Ashok Chand, DCP, Special Cell deposed that on 20.12.2001, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 POTA he had power to record confession. He had no personal knowledge of the activities of the accused apart from what they stated in the confessional statement. He admitted that he was being daily briefed by ACP Rajbir Singh. He stated that assault on Parliament was a terrorist attack. Certain question regarding the applicability of POTA sought to be put to the witness were disallowed. He said that only he and the accused were in the room when the confession was recorded. He did not ask the accused if he wanted legal assistance. He denied the suggestion that accused Shukat was never produced before him. He denied the suggestion that accused never expressed his desire to make confessional statement. He denied the suggestion that ACP Rajbir Singh dictated the confession which he recorded and got the same signed from the accused. In cross-examination by accused Mohd.Afzal, witness denied that Mohd. Afzal was not produced before him or 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 confessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and SAR Gilani were produced and a sealed envelope having the seal of JK containing the statement of accused persons recorded by DCP were produced. Proceedings before the DCP being Ex.PW-60/3, PW-60/6 and PW-60/9 were found in the envelope. He drew the proceedings Ex.PW-63/2 in the form of statements. Statement of Shaukat recorded by him was Ex.PW-63/1 and Shaukat's confirmation was Ex.PW-3/4. Statement of Mohd.Afzal was Ex.PW-63/5 and his confirmation was PW-63/6. Statement of accused SAR Gilani was Ex.PW-63/7 and his conformation was PW-63/8. He deposed that accused persons were identified by the I.O. He recorded the statements in his chamber where apart from himself, his orderly and the accused persons were present and the Stenographer was called for typing when required. He supplied copy of the proceedings to the I.O. and re-sealed the statements recorded by DCP in a separate parcel with his own seal of VK and gave the same to the I.O. for filing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/1 for supplying copies of the statement which was supplied to him in a sealed envelope with direction to produce the three accused persons before the ACMM on 22.12.2001. On 21.12.2001, he had sent accused Mohd.Afzal with Inspector R.S. Bhasin to Portrait Building Section for preparing portrait of Gazi Baba and Tariq at the description to be given by the accused. Portrait prepared were Ex.PW-80/2 and 3. On 22.12.2001, application Ex.PW-63/1 was moved before the ACMM, before whom accused persons were produced and each one of them was individually called inside the chamber. He was called thrice for identification of each accused. Endorsement pertaining to identification being Ex.PW-80/4 to 6. After the proceedings were over, vide Ex.PW-63/9, he moved an application before the learned ACMM for taking copies of the proceedings and obtain copies. Except for accused Mohd.Afzal, whose police custody was extended, other accused were sent to judicial custody on 22.12.2001 itself. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingness was conveyed to him orally. On 21.12.2001, he did not produce all the accused persons at one time before the DCP. Accused S.A.R. Gilani was produced at 11.30 A.M. and other two accused Mohd.Afzal and Shaukat had been taken for preparation of portraits. Accused Shaukat was produced at 3.30 P.M. He denied the suggestion that after SAR Gilani refused to make confession, he pressurised the other two accused. He admitted that after 19.12.2001 he did not search the house of S.A.R. Gilani. He went through the transcripts of tape conversations between SAR Gilani and his step brother. He did not make Shah Faizal, step brother of SAR Gilani as accused as he did not find him involved. He denied the suggestion that that S.A.R. Gilani was picked up by him outside Khalsa College on 14.12.2001 at about 1.15 P.M. He denied that thereafter S.A.R. Gilani was tortured and beaten. He denied the suggestion that the tape was tampered. He denied the suggestion put to him that S.A.R. Gilani 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfering with the trial. He denied that no recoveries were effected. Lastly, he denied that he was deposed falsely. 107. PW-11, Shri G.L. Meena, Deputy Secretary (Home), deposed that on 4.4.2002 request was received for grant of sanction under Section 50 POTA, copy of FIR, draft charge-sheet, seizure memo, site plan, disclosure statements, statements of the witnesses, CFSL report and prosecutor's opinion were accompanying the request. Through the Principal Secretary (Home) file was submitted for sanction to the Lt.Governor, which was granted by the Lt.Governor on 4.5.2002. It was communicated by him under his hand vide order dated 8.5.2002 being Ex.PW-11/1. On 4.4.2002, request was also received from the Police HQ for grant of sanction under Section 196 Cr.P.C. for offence under Section 121, 121-A, 122, 124 read with Section 120-B IPC. This request was accompanied by all the documents which were accompanying the request for sanction under Section 50 POTA. He submitted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He had translated the said conversation, translation being Ex.DW-1/A. It contained a few English words namely Syllabus , Prospectus and O.K. . He did not find word Yeh Chae Zurari in the conversation. He deposed that the words Yeh Kya kuru is used in Kashmiri language as an exclamatory question if unexpected things happened; by way of example he stated that if there is unexpected snowfall people may say Ye Kya Kuru or if somebody's scooter is lost and he goes to office without scooter, he may be queried Ye kya kuru . In this context, he deposed that if a brother queries his brother whether he had a quarrel with his wife he may use the said phrase. On cross-examination, witness stated that in the conversation he did not find the words Ye chae zurari followed by a laughter. He admitted that he was a sympathiser of PUCE but was not its member. He denied that the English words prospectus and syllabus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Shahib-a-Kader night in their house at Mukherjee Nagar reading Namaz. All were tired by the morning of 13th December and slept. Everybody got up at noon time and performed the noon Namaz. At 4.00 p.m. her husband left for college whereupon she asked him whether he had informed the college authorities that he would be going to home town for Id, to which he replied that apart from Sunday and Monday (Id holiday) there were no holidays and hence it was not possible to go to the home town, besides it would be expensive. She insisted that she wanted to celebrate Id in the home town, but her husband refused, at which they had altercation. On the night at 8.00 p.m. she made a telephonic call to her mother-in-law from a S.T.D. booth and informed her that they would not be coming to Kashmir. When her mother-in-law inquired the reason she told her to ask her son and closed the telephone. Her mother-in-law had asked for 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 heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhi Road or at BSF Camp. She, however, had learnt that two persons had been brought to Lodhi Road on 15.12.2001. She had heard the name of Mohan Chand Sharma. She had not seen Mohan Chand Sharma or Rajbir Singh and had only heard through other persons that Rajbir Singh had given instructions. She admitted that she had not told all these facts, which she had deposed in her examination-in-chief, to any person and were only being disclosed in Court. On 16.12.2001, when she came back she informed her relatives as to what had happened. She denied the suggestion put to her that she was deposing falsely. On being questioned by the Court, she deposed that Shabey-a-Kader Namaj commenced at 9.30 P.M. on 12.12.2001 and closed on 13.12.2001 at 7.00 A.M. During Namaj, her husband did not come out of the room where Namaj was being offered, nor he did talk to anyone. They were not communicating with each other. Cell phone 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quarrel between his brother and his wife through his mother. He did not gave details of the syllabus and prospectus on 14.12.2001 as he had already given the same when he spoke to his brother on 13.12.2001. He said that his brother from J K had accompanied him on 2.1.2002 to the Special Cell. He did not make complaint to any senior officer about the threats allegedly given by Mohan Chand Sharma or Rajbir Singh. He denied the suggestion that he did not talk with his brother about prospectus and syllabus on 14.12.2001. To a court question, he admitted that telephone No. 35509 was installed in their house but stated that it did not have STD facility and, therefore, he used to make STD calls from the market. He had spoken to his brother on 13th and 14th from the same STD. He admitted that the STD code of Baramullah is 018952. 117. DW-7, Manish Pandey deposed that she had 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny trace. Whenever a fresh file was introduced in a computer, computer gives the date but this could be changed. If a hard disc was replaced in a computer, the entire data would vanish. In cross-examination, witness deposed that he had never taken back-up of any computer for a criminal case and had not written any book for use of electronic evidence. Volunteered that he had written some articles concerning Tehlaka.com for submission to Vekataswamy Commission pertaining to use of electronic evidence. 119. PW-9, Dr. Peggy Mohan, deposed that she had done her B.A. in linguistics with reference to translation and had even obtained Master's degree and Ph.D. from Michigan University, U.S.A. She had gone through the confessional statements of Shaukat, Mohd. Afzal and S.A.R. Gilani and her opinion in respect thereof was Ex.DW-9/A. In her cross-examination, she admitted that speed 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, depose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d validity of the trial itself. 122. The first preliminary issue argued by Mr. Collin Gonzalvis, learned counsel for Mohd.Afzal was that: (i) an accused has a fundamental right to counsel from point of arrest, especially in a capital case; (ii) it is the duty of the investigating agency to inform the accused person that the accused can consult a lawyer, (iii) at the time of trial, if the accused does not engage a lawyer, the State at its expense, must provide one. The lawyer so appointed must be competent and should be given adequate time to prepare the defense. 123. The second issue urged was commonly propounded by counsel for accused Mohd.Afzal and Mr. Ram Jethmalani, learned Senior Counsel appearing for accused S.A.R. Gilani. It was contended that by allowing the media to interview Mohd.Afzal, which interview was prominently shown by the electronic media on 20.12.2001 and 21.12.2001, serious prejudice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128. In support of the first issue noted above, referring to the judgments of U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), learned counsel argued that law required a conviction to be set aside where counsel's assistance was not provided or was ineffective. Counsel had a duty to bring such skill and knowledge as to make a trial reliable adverserial testing process. Relying upon the judgment of U.S. 9th Circuit Court of Appeals Harris v. Wood and the judgment of U.S. 6th Circuit Court of appeals Groseclose v. Bells, 1997 FED App. 03551P (6th CIR.), U.S. 9th Circuit Court of Appeals Turner v. Duncan, and the judgment of U.S. 11th Circuit Court of Appeals Dobbs v. Turpin, counsel contended that where no discernible defense strategy emerged at the trial, trial could not be relied as having produced a just result and that adequate consultation between the lawyer and the accused is an essential element of competent representation in a criminal case. In the 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., , Hussaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court whose result was under challenge before it.'. 130. None can belittle the right of every accused to be fairly and adequately represented in a criminal trial, especially where capital sentence is involved. Counsels play an important role in the resolution of issues in an adversarial system. Every accused has a right to meet the case of the prosecution on even terms. Following observations of the U.S. Supreme Court in Raymond Hamlin as approved in Madhav Hayawadanrao Hoskot (supra) epitomise the quintessence of this processual facet: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. C. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. 132. The issue, therefore, has to be decided on the facts as they emerge from the record : What are the facts emerging from the record of the present case before us? 133. On 19.1.2002, all the accused were produced before the learned Special Judge for the purpose of remand. On inquiry, accused Shaukat and S.A.R. Gilani stated that they would be engaging their own counsel. Accused Mohd.Afzal wanted a counsel to be engaged on his behalf at State expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was cross-examining on behalf of two or three accused persons. We do not find from the record that there was a denial of counsel to accused Mohd.Afzal. As noted, Mohd.Afzal did not object to Neeraj Bansal representing him as the counsel. It is no doubt true that he made an application on 8.7.2002 specifying the names of four counsels, one out of whom he wanted to act on his behalf, but when on 12.7.2002 the Court recorded that these persons had expressed their inability, hence Neeraj Bansal would continue to act as the amices for accused Mohd.Afzal, Mohd.Afzal continued with the trial without any objection or grievance. As regards the contention that counsel's assistance was denied to accused Mohd.Afzal and for that matter to all accused persons when they were arrested, we may note the observations of Hon'ble Supreme Court in the judgment , Nandini Satpathy v. P.L. Dani: Right at the beginning we must notice Article 22(1) of the Constitution, which reads : No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2001 and 21.12.2001 and thereafter 100 days after the attack on the Parliament. It was contended by Mr. Collin Gonzalvis, counsel appearing for Mohd.Afzal and Mr. Ram Jethmalani, learned Senior Counsel appearing for S.A.R. Gilani that a media trial is antithesis of the rule of law and results in miscarriage of justice. Pre-trial publicity is sufficient to cause prejudice and hatred against the accused and the presumption of innocence of every accused person till found guilty by a court of law is eroded. Pre-trial publicity prejudicially pervades and saturates the community and renders virtually impossible a fair trial. It was argued that so insidious is bias that a person believing that he was actually acting impartially, in his unconscious mind, is affected by the bias and the decision is therefore, the result of a biased mind. Law hates a biased mind. 136. Mr. Collin Golzalvis, learned counsel relied upon the judgments of European Court of Human Rights in Allenet De Ribemont v. France, 3/1994/450/529 Wayne Carl Coleman v. Ralph KEMP, 778 F.2d 1487 (54 US LW 2367), Samual H. Sheppard v. E.L. Maxwell, 384 U.S. 333 and Wilbert Rideau V. State of Louisiana, 373 U.S. 723. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case) arise, the case of the prosecution is vulnerable to be attacked on the ground of exposure of the accused persons to public glare, weakening the impact of the identification. Further, what is more fundamentally disturbing to our mind is the fact that police custody is given by the Court to the investigation authorities on the premise that the accused is required for the purpose of investigation. This custody is not to be mis-used by allowing the media to interview the accused persons. The practice of allowing the media to interview the accused persons when they are in police custody under the orders of the Court, has therefore, to be deprecated. 140. The third issue raised, namely, that there was no valid sanction for prosecution of the accused persons under POTA and for the penal code offences as well as under the Explosive Substances Act, we may note the impact of the legal provisions. Section 50 of POTA reads as under : 50. No Court shall take cognizance of any evidence under this Act without the previous sanction of the Central Government, or, as the case may be, the State Government. 141. Section 196 of the Code of Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act on the aid and advice of the council of Ministers in relation to matters with respect to which Legislative Assembly has power to make laws under Article 239AA(3)(a). The Council of Ministers has no power in respect of Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of the State List in so far they relate to the said Entries 1, 2 and 18. POTA was a law relating to the defense of India i.e. Entry 1 of List 1 and, therefore, in so far as Delhi was concerned, it was the power of Central Government was the argument. Section 41(1) of the Government of National Capital Territory of Delhi Act, 1991 provided that Lt.Governor shall act in his discretion in a matter which fell within the purview of the powers of the Legislative Assembly, but in respect of which powers or functions are entrusted or delegated to him by the President. Counsel contended that no empowerment under Article 239 of the Constitution of India in favor of the Lt.Governor conferring the powers of the Central Government under POTA have been shown to exist. He further contended that Section 50 of POTA read with Section 3(60)(c) of the General Clauses Act, 1897 required sanction of the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t.Governor is mis-conceived. The scheme of the Constitution, in relation to the Union Territory of Delhi would not require two Notifications, one appointing an Administrator and the other designating him. Further, Section 2(h) of POTA defines State , in relation to a Union Territory to mean the Administrator thereof. Section 2(1)(h) of POTA reads as under : 2(1)(h) State Government , in relation to a Union Territory, means the Administrator thereof. 150. POTA as Central Legislation itself delegates the powers of sanction to the Administrator i.e. the Lt.Governor in the Union Territory of Delhi. We may note that Article 239AA(3)(b) provides that nothing in Sub-clause (a) shall derogate from the power of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or a part thereof, In view of the specific delegation under Section 2(h) of POTA, reliance upon Section 3(60)(c) of the General Clauses Act and the Government of National Capital Territory of Delhi ACT, 1991 is mis-placed and so is the reliance on the judgment of the Supreme Court in Goa Sampling Employees Association case (supra). 151. We may note that the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid and the trial court would no be a court of competent jurisdiction. 154. In , Jaswant Singh v. State of Punjab, it was held as under : The sanction under the Prevention of Corruption Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Capital Territory of Delhi, hereby grants sanction for the initiation of criminal proceedings against the said 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, in the court of competent jurisdiction, for committing the said offences punishable under Sections 3/4/5/20/21 of the Prevention of Terrorism Act, 2002 (No. 15 of 2002), being involved in criminal conspiracy to commit the said offences with the intention of waging war against the Government of India, apart from other offences. 156. He also proved the order conveyed by him pertaining to the sanction accorded under Section 196 Cr.P.C. The same reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 VIII. Doabga, Sopore, Distt.Baramullah (Jammu Kashmir), at present - 1021, 1st Floor, Mukherjee Nagar, New Delhi, in the court of competent jurisdiction , for committing the said offences punishable under Sections 121/121A/122/124/120-B of the Indian Penal Code, 1860 (45 of 1860), being involved in criminal conspiracy to commit the said offences with the intention of waging war against the Government of India, apart from other offences. 157. The witness had brought the original files pertaining to both the sanctions and had clearly deposed that file when put up to the Lt.Governor contained copy of the FIR, draft charge-sheet, seizure memo, copy of the site plan, disclosure statements, statements of witnesses, FSL report and the prosecutor's opinion. He had put up the file before the Principal Secretary, who in turn placed it before the Lt.Governor. While putt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st reads as under : 52. Arrest.- (1) Where a police officer arrests a person he shall prepare a custody memo of the person arrested. (2) The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station. (3) Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the police officer under the signatures of the person arrested. (4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person. Provided that nothing in this sub-section shall entitle the legal practitioner to remain present throughout the period of interrogation. 162. In , D.K. Basu v. State of West Bengal the Hon'ble Supreme Court laid down guidelines to be followed by the police when an accused is arrested. Guidelines 2, 3 and 10 are substantially the same as incorporated in Section 52 of POTA. Guidelines 2, 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the State; (iii) conspiratorial activities, characteristic of a terrorist act, that requires a wire, electronic or oral communication to be intercepted before an order from the Competent Authority authorising such interception can, with due diligence, be obtained; and (b) there are grounds on which an order should be issued under this section to authorise such interception, may authorise, in writing, the investigating officer to intercept such wire, electronic or oral communication, if an application for an order approving the interception is made in accordance with the provisions of Sub-sections (1) and (2) of Section 38 within forty-eight hours after the interception has occurred, or begins to occur. (2) In the absence of an order approving the interception made under Sub-section (1), such interception shall immediately terminate when the communication sought is obtained or when the application for the order is rejected, whichever is earlier, and in the event of an application for permitting interception being rejected under Sub-section (1) of Section 39 or an application under Sub-section (1) of this section for approval being rejected, or in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to one particular person specified or described in the order or one particular set or premises specified or described in the order. (4) The directions shall specify the name and designation of the officer or the authority to whom the intercepted message or class of messages is to be disclosed and also specify that the use of intercepted message or class of messages shall be, subject to the provisions of Sub-section (2) of Section 5 of the said Act and the copies of the intercepted message or class of messages shall be destroyed when no longer required. (5) The direction for interception shall remain in force, unless revoked earlier, for a period not exceeding ninety days from the date of issue and may be renewed but same shall not remain in force beyond a total period of one hundred and eighty days. (6) The officer issuing the directions for interception shall also make a request in writing to the Telegraph Authority who shall extend the facilities and cooperation for interception mentioned in the directions. (7) The officer authorised to intercept any message or class of messages shall maintain proper records mentioning therein, the intercepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of equivalent rank; (b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under Sub-section (1) of Section 8 of the Code, below the rank of an Assistant Commissioner of Police; [c] in any other case not relatable to Clause (a) or Clause (b), below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under this Act. 168. The issue is no longer res-integra. As far back as in the year 1955, it was the subject matter of consideration before the Supreme Court in the case of H.N. Rishbud and Anr. v. State of Delhi, . The Court was dealing with the prosecution of the accused persons before a special Judge for offences under the Indian Penal Code as well as Prevention of Corruption Act, 1947. Section 5(4) of the Prevention of Corruption Act, 1947 provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any offence punishable under Sub-section (2) of Section 5 without the order of the Magistrate of first class. Investigation was conducted not by Deputy Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Clauses (a), (b) and (c ) of Section 190(1) are conditions requisite for taking cognizance on an invalid police report is prohibited and is, therefore, a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1). (Whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedents to the trial. 169. On facts, investigation which had commenced pursuant to the registration of FIR against the accused persons under Section 120B IPC, Section 420 IPC and Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 by a junior police officer lead to certain facts emerging which showed that an offence under the Prevention of Corruption Act, 1947 was made out. The provisions of Prevention of Corruption Act, 1947 were added to the FIR and thereafter permission was taken from the Magistrate. The investigation continued and an officer of the rank of Deputy Superintendent of Police took over the investigation. Virtually, no further investigation was done. The charge-sheet was filed against the accused persons for having committed the offence under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 3(1) of the Terrorist Disruptive Activities (Prevention) Act, 1987 (here-in-after referred to as TADA) defined terrorist act as: Section 2(1)(h). Terrorist Act has the meaning assigned to it in Sub-section (1) of Section 3, and the expression terrorist shall be construed accordingly. Section 3(1) of TADA reads as under: 3. Punishment for terrorist acts. (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms 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 in such a manner as to cause, or as is 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 of services essential to the life of the community, or detains any person and thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equisite intention as contemplated by Section 3(1) of TADA by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences mentioned in said section. The court, in the context of the Constitution Bench judgment in Kartar Singh v. State of Punjab, which upheld the constitutional validity of TADA observed that: It is, thus, seen that most of the criminal activities constituting a terrorist act and offences under the penal law, do overlap.' 177. All counsels agreed that indeed what happened on 13.12.2001 at Parliament House in the forenoon was a terrorist act as defined in POTA. Notwithstanding that none disputed that it was a terrorist act we shall none the less deal with it in relation to the evidence on record since it is a case involving capital sentence and would not return our finding on counsels concessions. 178. Section 121 IPC is a penal provision pertaining to offence of waging war against the Government of India. It reads as under:- 121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India. Whoever, wages war against the Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermittant time factor is a typical feature of terrorism'. Treacherous attack by surprise was the back-bone of terrorism's most distinctive feature. Lastly, counsel referred to decision reported as (1938) 61 LLL.Rep. 131 Kawasaki Kisen Kabushiki v. Bantham Steamship Company, decision of the U.S. Supreme Court in Alexander Kahn v. August V. Anderson, October Term 1920, and finally to the decision of the award dated 18.12.1976 pronounced by the International Chamber of Commerce, Arbitration Tribunal in Dalmia Cememt Ltd. v. National Bank of Pakistan. 183. Sh. Gopal Subramanium, learned Senor Counsel for the prosecution urged that acts falling in the definition of terrorist act as defined would, without exception, be terrorist acts, however, in a given situation the acts may go further and may as well constitute waging war against the Government of India. Counsel contended that the four attributes as being the essential features of a war applied when two states went to war and the three judgments cited by the defense dealt with inter state war and not intra state war . Counsel urged that a perusal of the illustration to Section 121 gave the clue as to what the legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... armed conflicts, the volume of international legal norms apposite to them has been constantly expanding. Still, many of the rules applicable to and in an intra-State strife are fundamentally different from those relating to an inter-State war. Hence, Oppenheim was entirely right in excluding civil wars from his definition. In the present study, inter-State armed conflicts will constitute the sole object of our inquiry. 186. The learned author at a later part of his treaties, while dealing with war in the technical and material sense observed: War in the material sense unfolds regardless of any formal steps. Its occurrence is contingent only on the eruption of hostilities between the parties, even in the absence of a declaration of war. This is where Oppenheim's reference to a violent struggle is completely apposite. The decisive factor here is deeds rather than declarations. What counts is not a de jure state of war, but de facto combat. Granted, even in the course of war in the material sense, hostilities do not have to go on incessantly and they may be interspersed by periods of cease-fire (see infra, ch.2, C). But there is no war in the material sense wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 190. Insurgency is treated to be an act of waging, war against the Government of India. We have dealt with what the Parliament of India means in the jural concept. It is the seat of the sovereignty of India. It symbolises the being of the Nation i.e. India that is Bharat . A full blooded attack on the parliament when it is in Session would indeed be an act of war against the Government of India. The number of the combatants are only indicative of, certainly not determinative of, whether the attack would be an act of war. The five power available, to our mind, would be more decisive. To illustrate, a single person may have infiltrated into India with a nuclear bomb, a missile and a navigation system to guide a missile. He uses it to bomb the parliament when it is in Session and particularly when the President of India is to address it. The entire executive and the legislature is present. The President is there, the Vice-President is there, the Prime Minister, his entire cabinet is there. All members of Parliament are there. He intends by his attack to wipe out the entire legislative and executive body. This solitary act by one man would be more devastating then a 1000 armed men a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow be struck. 196. Nearer home, in AIR 1931 Rongoon 235, Page C.J. In the context of waging war and rioting held:- Whether a body of persons are rioters or rebels in quo animo. 197. In AIR 1933 A11.690 S.H. Jhabwala v. Empror and AIR 1946 Nagpur 173 Maganlal Radhakrishnan v. Emperor it was held that numbers and what they were equipped with was not material. The intention of the participants if it was for purpose of depriving the government of its sovereignty, was relevant and would fall within the corners of Section 121 IPC. 198. We deal with the sixth issue raised pertaining to the alleged deficiencies in the charges. 199. Charge No. 1, 9, 12, 15 and 16 read as under: Firstly, that on and before 13-12.01, you all along with Mohd. Masood Azhar, Ghazi Baba @ Abu Jehadi @ Abu Saqlain and Tariq Ahmed - all Pak Nationals and proclaimed offenders (P.Os) and along with Mohammad, Haider, Hamja, Raja and Rana (all Pak nationals and deceased terrorists in attack on Parliament of India) and some other unknown persons, hatched up a conspiracy to procure arms and ammunitions and to attack Indian Parliament at New Delhi, when the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts which can be proved will constitute, the charge can be framed for all offences or alternative changes can be framed. At the trial if it is established that the accused has committed an offence, he may be convicted though he may not have been charged with the offence. Section 218 embodies the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet: However, it cannot be read pedantically to provide escape route to an accused. Justice Vivian Bose in the judgment , Willie (William) Slaney v. State of M.P. observed: that in judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. 201. The said enunciation of law has stood the ground till date. Section 215 of the Code states that no error either in stating the offence or the particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record, it would be appropriate if we pen down the legal principles on which the evidence on record would have to be considered for determining the guilt of the accused persons or otherwise. 207. Section 120-A of the Penal Code defines a criminal conspiracy. Same reads as under:- 120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. 208. Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under:- 10. Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a conspiracy to effect that object. The question you have to ask yourselves is, Had they this common design, and did they pursue it by these common means the design being unlawful? 211. A conspiracy is a march under a banner. The very agreement, concert or league is the ingredient, of the offence like most crimes, conspiracy requires an act (actus reuse) and an accompanying mental state (mens rea). From the definition of conspiracy in Section 120-A, it is evident that the agreement constitutes the act and the intention to achieve unlawful object constitutes the mental state. All conspirators are liable for the crimes committed in furtherance of the conspiracy besides being liable for committing an offence of conspiracy itself. Pertaining to conspiracy, law punishes conduct that threats to produce the harm as well as the conduct that actually produces the harm. In this, lies the difference between the offence of conspiracy and general penal offences. In case of general offences, attempt to commit a crime merges when the crime is completed but in case of conspiracy, punishment is for both, the conspiracy and the completed crime. This distinctiveness of the offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This something more would be a step from knowledge to intent. This was to be evidenced from informed and interested cooperation, simulation and instigation. The following passage from People v. Lauria 251, California APP 2 (d) 471 was cited. All articles of commerce may be put to illegal ends,.... but all do not have inherently the same susceptibility to harmful and illegal use....This different is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the same he intends to further promote and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another proposes unlawful action, it is not unrelated to such knowledge........ The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifferent, lack of concern. There is informed and interested cooperation, simulation, instigation. 214. Thus, the proof of offence of conspiracy would require in most cases some kind of physical manifestation of agreement. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. One terrorist was shot down at gate No. 5 and the 5th terrorist was shot down at gate No. 1. From the evidence of these witnesses, it stands proved that the terrorists were armed with automatic assault rifles, pistols, hand grenades, rifle grenades and had ammunition with them. (B) From the testimony of PW.75, it stands proved that 11 electric detonators, 14 hand grenades and 16 rifle grenades were found at the site. Besides the aforesaid explosives, remote control devices being transceiver on the body of digital radio set antenna, remote bell, receivers, resistors, sunca battery, electric detonator, I-Land Grem and Rifle Grem were available with the deceased terrorists as unused explosives and electronic devices. Pertaining to the white Ambassador Car being used as a car bomb, it stands proved from Ex.PW.75/3, that it was a sophisticated bomb having improvised explosive devices planted to it. Seizure memo Ex.PW-80/15 shows that the stainless steel can used as body of the bomb was of 20 liter capacity and report Ex.PW-76/4 shows and it contained 30 kg explosives. (C) From the testimony of PW.1, it stands proved that 58 used cartridges of AK-47 rifle and 118 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument is a letter addressed by AirTel to Inspector Mohan Chand Sharma providing certain details of mobile numbers, their corresponding SIM numbers etc. The said letter is dated 17th December, 2001 and in the captioned subject it refers to:- Case F.I.R. No. 417 dated 13.12.2001 Under Section 121/ 121A/122/124/302/307/186/332/353/120B IPC, 3/4/5 Explosives Substances Act, 25/27/54/59 Arms Act and 3/4/5/21/22 POTO Parliament Street, New Delhi. 219. Argument was that it is the admitted case of the prosecution that POTO was added on 19th December, 2001 as per admitted testimony of the prosecution witness (PW-80) ACP Rajbir Singh. How the AirTel people by their own refer to Section 3/4/5/21/22 POTO in their letter dated 17.12.2001? Was the question posed by Shri Shanti Bhushan learned Senior Counsel. He conceded that the aforesaid fact went unnoticed at the trial. Since none of the prosecution witness was confronted with this letter Ex.PW-35/1, at this stage we would not have the benefit of any possible explanation which could be given by the prosecution witnesses. One would be entering into an area of surmises and conjectures to get into an explanation on the let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution witnesses was cross-examined on this document we draw no adverse inference there from and come to the conclusion that F.I.R. being Ex.PW-14/1 thus stood proved. 221. It is even otherwise settled law that where a witness is not cross-examined on any relevant aspect, the correctness of the statement made by a witness cannot be disputed. As far back as 1893 Lord Hershell in the judgment of the House of Lords in Browne v. Dunne, (1893) 6-67 (HL) observed : I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lumn identified by the name of the accused Mohd.Afzal finds mention, relationship mentioned is associate , followed by the signatures of accused Mohd.Afzal. Thus, according to the prosecution, it further stands established that the 3 terrorists who were shot dead by the security personnel at gate No. 9 were Hamja, Raja and Rana. The terrorist who was shot dead at gate No. 1 was Mohd. and terrorist who was shot dead at gate No. 5 was Hayder. 225. In reply, the argument on behalf of accused Mohd.Afzal is that Section 162 of the Cr.P.C. prohibits the proof of any statement made by an accused to a police officer. Therefore, identification of accused Mohd.Afzal in the presence of the police as noted in the postmortem reports was inadmissible in evidence and the statement made on behalf of accused Mohd.Afzal by his counsel on 5th June, 2002 that the postmortem reports of the deceased terrorists be treated as proved was of no consequences. 226. We have noted the testimony of PW-2, PW-3, PW-4, PW-47 and PW-80 in the preceding part of our judgment. Presence of PWs 2, 3 4 when postmortem of the deceased terrorists was conducted cannot thus be doubted. Evidence of PW-47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 511085 9811544860 9810302438 9811059315 00971507683340 00971505516899 228. Further, as per the prosecution, it also stands established that two paper slips Ex.PW.2/16 and 2/17 were recovered from the pocket of the deceased terrorist Hamja. The paper slip Ex.PW.2/16 contains 5 telephone numbers, being the same as found on the paper slips recovered from the pocket of Raja and Rana on the spot by PW.2. From the testimony of PW.4, it stands established that two slips of papers were recovered from the deceased terrorist Mohd. Ex.PW.4/6 contained 5 telephone numbers corresponding to the first 5 telephone numbers found on the slips of paper recovered from Raja, Rana and Hamja and Ex.PW.4/7 contained two telephone numbers being identical to the telephone numbers at serial No. 6 and 7 of the slips of paper recovered from the deceased terrorist Hamja, Raja and Rana. 229. From the testimony of PW.2 it stands established that the identity card Ex.PW.2/3 was recovered from the terrorist identified as Raja. It was purportedly issued by XANSA websity. The address of the issuer of the Identity Card was 37, Bungalow Road, Karma Nagar, New Delhi and the identity card had telephone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -examined pertaining to the seizure memos. PWs. 2, 3 and 4 nor the officers who had been associated in the recoveries being effected were cross-examined on the seizure memos. In seizure memo Ex.PW.2/2 in respect of the recovery of the Identity card effected from the person of the deceased terrorist Hamja following finds mentioned:- The personal search of the aforesaid deceased has been duly conducted, from whom the following articles have been found:- 1, One I/Card in the name of Anil Kumar S/o. Vinod Kumar R/o. 120A, Adarsh Nagar, Delhi which pertains to computer Education Websity on which telephone No. 9811489429 and 37, Bunglow Road, Kamla Nagar, New Delhi are written. 231. Pertaining to recovery effected from the deceased terrorist Raja the following finds mentioned :- The personal search of the aforesaid accused has duly been conducted and the following articles have been recovered from him: 1. One I-card, on which Computer Education Websity and Raju Lal S/O. Ram Lal R/o. 120A, Adarsh Nagar, Delhi Telephone No. 9811489429 and 37, Bunglow Road, Kamla Nagar, New Delhi are written. 2. One slip whereon 5 mobile Nos. and 2 No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter Education Websity, Rohail Ali Shah S/o. Shri Mohd. Ali Shah, Group Ms. Office; Address, 120A, Adarsh Nagar, Delhi, Qualification Matric, Mobile phone No. 9811489429, Date of issue 15.10.2001, 37, Bunglow Road, Kamla Nagar, New Delhi, Telephone No. 7667678 and WWW. XANSA.Com. The aforesaid card was bearing a round stamp bearing the words 'XANSA' Computer Education, Websity, Kamla Nagar. (3) one identity card bearing the words XANSA Computer Education Websity, Rohil Sharing S/O. Anil Sharma R/o. 120B, Adarsh Nagar, Delhi, Group MS office, Qualification Matric, Mobile phone No. 9811489429 Date of issue 15.10.2001, 37, Bunglow Road, Kamla Nagar, New Delhi Telephone No. 7667678, WWW.XANSA.Com and was bearing a round stamp. (4) One identity card bearing the words Cybertech Computer Hardware, Solution, Name Ashiq Hussain Khan S/o. Sh. A.B. Rashid Khan R/o. Khawaja Gilgit (Sopour), District Baramula, in English. Both the sides of the aforesaid identity card was bearing a round stamp of 'Cyber Tech Computer Hardware'. All the aforesaid three recovered identity cards bear the similar photos of only one and the same man and these photographs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana at the spot stands fully established by the testimony of PW-2 and further because of the fact that on all the three slips, same telephone numbers are to be found noted and no particular inference or connection with the crime qua the accused persons was sought to be inferred by the prosecution with reference to the slip received from the deceased terrorist Hamja. The only thing which the prosecution wanted to bring to the notice of the Court was that the telephone numbers written on the slips recovered from Raja, Rana Hamja were the same numbers. (v) Recovery of Car sticker 236. From the testimony of PW.1, the Home Ministry sticker found pasted on the car No. DL-3CJ-1527 being Ex.PW.1/8 stood proved. (vi) Documents pertaining to car No. DL-3CJ-1527 237. From the testimony of PW.1 it stands proved that the original deliver receipt pertaining to the car in favor of Ashiq Hussain Khan being Ex.PW.1/6 was handed over to him by Harpal Singh (who was examined as PW.20). The witness also deposed about recovery of documents mark 'A' to 'E' from the car. These documents were duly proved as Ex.PW.20/4 to Ex.PW.20/8 by PW.20 Harpal Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of arrest. 243. PW.66, Insp. Mohan Chand Sharma, PW. 67 S.I. Bidrish Dutt, PW.70 S.I. Harinder Singh, PW.61 Abdul Haq Butt, Dy. S.P. S.G.P.O. M.R. Ganj Srinagar, PW. 62 H.C. Mohd. Akbar, PW.64 S.I. Hardey Bhushan PW.65 S.I. Sharad Kohli and PW.39, Naresh Gulati are the prosecution witnesses from whose evidence the prosecution seeks to prove the events leading to the arrest of the accused and recoveries effected at the time of arrest. 244. PW.66 was assigned the task of investigating further, in respect of the mobile phone numbers which came in the knowledge/possession of the police from the spot. They were 10 in all PW.66 in his evidence has given good reasons as to why he investigated only 3. They were 9811489429, 9811573506 and 9810081228. The first two were cash card numbers but the last was a regular number in name of accused S.A.R. Gilani whose address was 535, Mukherjee Nagar, New Delhi. The house was kept under surveillance. Permission was taken from the Joint Director, Information Broadcasting on 13.12.2001 itself for interception on these three telephones. It is not in dispute that under Rule 419A of the Indian Telegraph Rules 951, in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accused Afzan made disclosure statement Ex.PW-66/14. 246. As per PW-61, information was received in the morning that two persons involved in the attack on Parliament were in Srinagar around fruit mandi in the jurisdiction of P.S. Parampura. (Stated at the bar during argument that telephone No. 0194492610 from which Shaukat had spoken the previous night was in the fruit mandi). They were in truck No. HR-38E-6733. Two to three teams were formed, one of which located the truk at 8 A.M. in the mandi. Since a large crowd was in the mandi, a watch was kept. At 10 A.M. the truck moved out towards Baramulla. It was intercepted near P.S. Parampura. Accused Mohd. Afzal and Shaukat were in the truck. A laptop, ₹ 10 lacs and a mobile phone having IMEI No. 35012209452432 was recovered from them. Police at Delhi was informed. PW-64 and PW-65 left for Srinagar. They reached at about 2.15 P.M. PW-64 took custody of accused Mohd. Afzal and Shaukat. He took custody of the articles seized and brought the accused to Delhi. PW-65 stayed behind for some investigation and brought the truck to Delhi after a few days. 247. Accused S.A.R. Gilani did not dispute ownership and poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution, the police got the truck number when Afzan was arrested at 10.30 A.M. There was material contradiction. If the truck was tracked at 8 A.M., information would have been available with the Srinagar police in the early morning hours. This again belied the prosecution's time of arrest and was in tune with the defense that SAR Gilani was arrested on 14.12.2001 in the afternoon. f) DW-5 had stated that at 10 P.M. on the night of 14.12.2001, she and her children were illegally picked up from the house and taken to Special Cell, Lodhi Colony where she saw her husband with injuries showing torture. Her brother-in-law Bismillaha was also in illegal confinement. Her husband and Bismillaha were being forced to sign on blank papers. This testimony also went unchallenged. 248. Shri Gopal Subramaniam, learned Senior Counsel for the prosecution refuted as under:- a) Accused Afzan Guru had stated in her statement under Section 313 Cr.P.C. that accused S.A.R. Gilani knew her house and he had shown the house to the police. This shows that S.A.R. Gilani was arrested prior to her arrest and he had taken the police to her house. b) To PW-66 suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he denied), was put a suggestion that he arrested Shaukat and Mohd. Afzal from different places, thereby admitting that PW-61 arrested them. PW-62, who was with PW-61 when Shaukat and Mohd. Afzal were arrested, was given the suggestion that Shaukat and Mohd. Afzal were first brought to the police station and truck was brought later, thus arrest was admitted. 249. Counsel contended that aforesaid features clearly brought out that SAR Gilani was arrested first and the evidence was not destructive of the statement of PW-66 and PW-67 that SAR Gilani was arrested on 15.12.2001 from outside his house just as he was about to enter at 10 A.M. He led the police to house of Afzan Guru where she was arrested at about 10.45 A.M. and thereafter Shaukat and Mohd. Afzal were arrested at Srinagar at around 11.30A.M. 250. We need not discuss and analyze the rival contentions on the time of arrest as per the rival contentions noted above. To our mind, a very disturbing feature pertaining to the arrest of the accused persons has been noted by us. The Hon'ble Supreme Court in the judgment of D.K. Basu v. State of West Bengal, 1997 SC 610 has laid down guidelines to be followed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in given set of circumstances, but it is not what may be called a manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Mukherjee Nagar, Delhi. The screen of recovered Sony set is bearing the word ESSAR . On checking the Redial List of aforesaid recovered instrument, the following calls have been noticed on the screen; 1) 0163422711 2015 H₹ 14.12.2001 2) 0194492610 2011 H₹ 14.12.2001 3) 0163422701 1745 H₹ 14.12.2001 4) 0117861297 1136 H₹ 14.12.2001 5) 123 1846 Hrs. 13.12.2001 6) 0117453416 1417 H₹ 13.12.2001 7) 0117450433 1329 Hrs. 13.12.2001 8) 09810081228 1225 H₹ 13.12.2001 9) 9810081228 1215 H₹ 13.12.2001 10) 91911489429 1136 H₹ 13.12.2001 257. Indeed, the dialed list reflected on the screen as noted in the recovery memo shows that the calls at serial No. 2, 5 to 10 were reflected in the computer print out of this number. Calls at serial No. 1, 3 and 4 were not reflected as they had not materialised:- Recovery Memo Ex.PW-66/11 notes as under : In the presence of the witnesses mentioned hereinafter, the house search of House No. 1021, 1st Floor, Mukherjee Nagar, Delhi belonging to Navjot Sandhu alias Afsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettision such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. 260. This takes us to the recovery effected from accused Shaukat and Mohd. Afzal on their arrest at Srinagar. PW-61 and PW-62 deposed about arrest of accused Shaukat and Mohd. Afzal at Srinagar. In cross-examination, the accused did not dispute the factum of arrest by these two officers at Srinagar. Their testimony does not stand discredite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the computer generated records of mobile phone numbers 9810511085, 9810510816, 9810565284, 9810693456, 9810446375, 9810081228, 9811573506, 9811489429. 263. The computer print outs detail the following information:- 1. Mobile telephone number to which the details pertain. 2. Time of call. 3. Nature of call i.e. incoming or outgoing. 4. Call duration. 5. Tower from which call is received or transmitted. 6. Handset number of the mobile instrument used. 264. Has the prosecution proved these call details, if yes, only then can they be read in evidence. 265. All counsel, for the prosecution as well as the defense, did not dispute that the calls routed at the respective centres of AirTel and Essar are computer operated and the data/information is recorded by the concerned computer. Dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic 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 further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) the conditions referred to in Sub-section (1) in respect of a computer output shall be following, namely :- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer shall be taken to be supplied to it in the course of those activities; (c) to a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. 272. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. 273. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Sub-section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 1, the certificate being signed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, 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 are satisfied. (2) Provision may be made by the rules of Court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required. 281. In R.V. Shepherd, 1993 A.C. 380. Lord Griffiths, dealing with the defense argument held:- The principal argument for the defendant starts with the proposition that the store detective was not a person occupying a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pervisor 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 audited by the DTI. No complaint has been made as to the accuracy of their records. Vodaphone has their own quality assurance department which constantly monitored the system. 5) he asserted that the computer was working properly at the relevant time. In support of that assertion he relied upon the following facts : a) There was no record of any malfunction. Had their been, it would have been drawn to his attention by the billing department. In any event, the computer had ancillary equipment whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerated 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 unnecessarily imp leaded, while giving due weight to the fallibility of computers. The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:- First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, most computer error is either immediately detectable or results from error in the data entered into the machine . Secondly, advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the computer is working means that it is relatively easy to raise a smoke-screen. 291. The law as it stands enacted in India does not have a provision analogous to Section 69 of the Police and Criminal Evidence Act, 1984 in England. The conditions which require to be satisfied are the ones set out in Sub-section (2) of Section 65B. The conditions, as noted above are:- a) The computer from which the record is generated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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:- a) Instrument IMEI N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1:32:40 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of PW-66 and PW-67, accused Shaukat and Mohd. Afzal were handed over to PW-66 by SI Hirday 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 Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemicals for making explosives were purchased, the place from where the mixer grinder for 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in the judgment reported as 2003 (5) Scale 152, Malkhan Singh and Ors. v. State of M.P., this rule of prudence is subject 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have held that evidence given by a police officer such as leading to and pointing out places is admissible as conduct under Section 8 of the Evidence Act. 311. The testimony 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter a few days another person, being terrorist Mohd. started living with accused Mohd. Afzal and that 3 or 4 boys used to Visit Mohd. Afzal quite often. Shaukat used to visit him in the house. It stands established 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons who purchases motorcycle from his shop for a month or two as many a times they come back with registration related problems. We are, therefore, satisfied that this witness would have remembered the face of accused Mohd. Afzal 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken the specimen signatures of accused Mohd. Afzal without permission of the court in terms of Section 27 of POTA because of the reason that what the prosecution was wanting to establish by the said document was the fact that accused 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpression in the memory of this witness to have recognized accused Mohd. Afzal on 17.12.2001. His testimony inspires confidence. Indeed aluminium powder was recovered from the premises 281, Indira Vihar. It was used in the making of the explosives recovered from Parliament 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Afzal on 4.12.2001 he only said that he sold one SIM card (without identifying it) to Mohd. Afzal on 4.12.2001. It could be any card. The witness may have sold the particular card to Mohd. Afzal or any other person on 6.12.2001. The witness does not stand discredited. However, since no independent 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 assur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terrorist Mohd. i) Afzal was involved in the purchase of the motorcycle No. HR-51E-5768 and he was in the company of deceased terrorist Mohd. j) Chemicals used to manufacture explosives were purchased by Afzal and he was accompanied by persons. 327. Let us download the facts emerging from the cell phone records. Mobile number 9811489429 was first activated 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjee Nagar owned by PW-45. He was residing at the ground floor of the premises where he had his printing press. After about a month and a half of the letting, her husband, accused Shaukat joined her and the two lived thereafter as husband and wife. Visitors used to come to the house, accused Afzal being one of them. These facts were not disputed. The witness deposed that two to three days prior to 13.12.2001, four or five persons started visiting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny of PW-1 to PW-4, it stands established that seven I-Cards were recovered from the person of the deceased terrorists, one each from the terrorists Raja, Rana, Hamja and Hayder purporting to be issued by a computer centre at Bunglow Road and purporting to be of Xensa Web City., Two similar cards were recovered from accused Mohd, and one more I-Card purportedly issued by Cyber Tech Computer Hardware was recovered from the terrorist Mohd. In all there were these two formats of the identity 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to him. PW-72 worked on the laptop to retrieve information from 17th December, 2001 to 29th December, 2001. No suggestion in cross-examination has been made to PW-66 or PW-72 that they tampered with the laptop when it remained in their custody. The laptop was sealed and deposited in the Malkhana on 16.1.2002 as per the testimony of PW-80 to which there was no challenge. It is no doubt true that in the report of PW-79, it is recorded that the computer was 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taped voice of accused S.A.R. Gilani proved his report Ex.PW-68/A wherein he had opined that the taped conversation contained the voice of accused S.A.R. Gilani. In view of the fact that accused S.A.R. Gilani admitted to the conversation with his brother, we discuss no further except to note that as per the witness, he had not analysed the entire conversation but had analysed a few words from the taped and the sample conversation. He also admitted that 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-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Caller: O.K. Receiver: I don't know. I did not speak anything. Caller: O.K. Alright. Receiver: Tell more, don't speak anything now and tell me. I am much afraid. Caller: No, No nothing dear, O.K. Receiver: Are you fine? Caller: Yes, Yes. Receiver: Reached safely? Caller: Yes Yes. Receiver: And Chotu? Caller: Yes Yes Receiver: Do you know? Caller: Yes Yes alright you may make a call. Receiver: When? Caller: In the night Right now, I am calling from Outside, Receiver: Alright I will call up tomorrow (while weeping) 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 survei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laughing). Where is Bashan? Caller: His duty is off today. Receiver: Is he in Baramula? Caller: Yes. Receiver: O.K. - O.K. Caller: Can I put the phone down? Receiver: Yes Yes, put the phone down. Conversation between accused S.A.R. Gilani (Receiver) ......... step brother Sh. Shah Faizal (Caller). 345. defense version of translated taped conversation is :- 346. During the hearing of the appeal, we had called for the tape from Malkhana and in the presence of the parties played the same. Indeed the voice was so inaudible that we could not make head or tail of the conversation. We tried our best to pick up the phonetical sounds where there was a dispute as to what words were used, but were unable to do so. Testimony of PW-48 reveals that he could not analyze the talk as it was highly inaudible. PW-48 is a phonetic expert. If he could not comprehend the conversation in a clearly audible tone, the probability of ordinary layman picking up the phonetic sounds differently cannot be ruled out. The prosecution witness, PW-71, Rashid, who prepared a transcript of the tape is fifth clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The conclusion drawn by the prosecution can hardly be contended, much less accepted. The witness explained, which was corroborated by DW-1 and DW-2, that in Kashmir such type of exclamatory querying was usual when unexpected things happen and in the context of the testimony of DW-6 that what he meant by the question was the fight between Gilani and his wife, we find that assuming the talk to be the one as per the transcription of the prosecution, nothing incriminating emerges and no fact apart from the fact of the talk stands established. 349. We now come to the last and to an important and critical milestone in the sequence of events and evidence relied upon by the prosecution. The same relates to the confessions recorded before the police by accused Shaukat and Mohd. Afzal. 350. As per the testimony of PW-80, ACP Rajbir on 19.12.2001, POTO provisions were added to the FIR and the investigation was handed over to him. He interrogated accused Mohd. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the accused Shaukat. Cross-examination by Mohd. Afzal reveals that he did not dispute the recording of the statement but said it was not voluntary. Correctness of a part of the confessional statement where relationship between Mohd. Afzal, Shaukat and Gilani was recorded was sought to be challenged as being wrongly recorded. 351. PW-63, Sh. V.K. Maheshwari, ACMM, Delhi deposed that on 22.12.2001, the accused persons were produced in his court along with the sealed envelope Ex.PW-60/10 by ACP Rajbir Singh for recording of their statements in terms of Sub-section 5 of Section 32 of POTA. He proved the fact that the accused persons, were brought inside his chamber one by one where only he and his stenographer was present. He recorded the statements of the accused persons who were identified by the IO. He proved the proceedings which he held on 22.12.2001. 352. PW-63 was cross-examined and the tenor of the cross-examination was that the accused were never produced in 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice torture that on 21.12.2001 accused Mohd. Afzal implicated SAR Gilani. 355. From the evidence on record, the fact which gets established is that accused Shaukat and Mohd. Afzal did make confessional statements which were recorded by PW-60. Whether they were voluntarily or not would be dealt with by us when we analyze the confessional statements in light of the evidence on record and for the present, leave the issue holding that the defense version where accused Shaukat and Mohd. Afzal did not make any confessional statement is rejected and the version of the prosecution that the two made a confessional statement is accepted. 356. In his confessional statement, Ex.PW-60/9, Mohd. Afzal stated that he was born in the year 1969 and completed his schooling in the year 1998 from Government School, Sopore. On being motivated by Yasin Malik of JKLF, he joined it for purposes of Jehad and liberation of Kashmir. He went to Pakistan occupied Kashmir where he underwent military training which included handling 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to receive directions from Ghazi Baba from satellite phone. He motivated SAR Gilani and Shaukat for Jehad in Kashmir. Shaukat provided his motorcycle for conducting recee. Meetings were held in which Shaukat, Gilani and Afzal were present. Various targets were discussed. Another motorcycle was purchased for conducting recee, and finally decision was taken to strike at the Parliament House in a meeting which was held in the house of Shaukat when all were present. The details of the plan were finalised to attack the Parliament House in the said meeting. As per plan on 11.12.2001, the Ambassador Car was purchased by him and Mohd. Mohd. had prepared the M.H.A. Stickers and I-Cards from the laptop. They prepared the instant explosive devices with the help of the Chemicals and mixer grinders. One instant explosive device was fitted in the car. On the night of 12.12.2001, he, Shaukat and Gilani were given ₹ 10,00,000/-, by Mohd. for being shared between him, Shaukat and Gilani. He was told to take the laptop and return 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 13.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased a white Ambassador Car. On 12.12.2001, he, Afzal and Gilani met Mohd. at the Gandhi Vihar hide out. Mohd. gave them a computer and ₹ 10,00,000/- with the directions to Afzal to give the laptop to Ghazi Baba. Money was to be distributed amongst Afzal, Gilani and himself. On 13.12.2001 Afzal called him from mobile phone No. 9811489429 asking him to watch television and report the latest positions of the VVIPs in Parliament. He received another call from Afzal that the mission was on. He and Afzal left in the truck for Sri Nagar where they were apprehended on 15.12.2001. The laptop and ₹ 10,00,000//- were recovered by the police. 358. As per Section 24 of the Evidence Act, confession obtained by inducement, threat or promise proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable, for supposing that by making it, he would gain any advantage or avoid any evil of a temporal nature is irrelevant in a criminal 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 offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of confession, written or recorded on mechanical or electronic device within forty-eight hours. (5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody. 361. What is the evidentiary value of a confession and whether the confession recorded before a police officer under Section 32 of POTA is or is not admissible against the co-accused would require consideration only if we come to the conclusion and hold that the confessions made by accused Mohd. Afzal and accused Shaukat inspire confidence and are not a result of threat coercion, inducement, in short, are not extracted by the police under pains of torture on being put to any kind of danger or harm. 362. From the testimony of PW-60 and PW-63, it stands established that the confession was made before the Deputy Commissioner of Police i.e. a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 364. Accused Mohd. Afzal at no point of time retracted from his confessional statement. As far as accused Shaukat is concerned, he moved an application on 19.1.2002 stating that he had certain doubts'' regarding the verbal confession made before the police and he apprehended that the police might have twisted the same in a different way and formation . He alleged in the application that he was made to sign blank papers. 365. In our opinion the belated retraction of the confession is sufficient to ignore the retraction. However, we may note that while cross-examining PW-60, nothing was put and no suggestion was made by Shaukat drawing the attention of the witness to any part of the confessional statement to establish that what was recorded was twisted or was different than what was dictated by Shaukat. The contents of the application are at complete variance with the line of cross-examination of PW-60 wherein the suggestion put was that ACP Rajbir had drafted the confession in his hand and the accused was made to sign the same. On 3rd June, 2002, accused Shaukat made another application where he denied making any confession at all. Again, what was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi and procuring Chemicals and bringing arms with the terrorists are all common features of both the confessional statements. The discussion of the plans to carry out a fidayeen attack in Delhi, Shaukat providing his motorcycle for recee, phone numbers used by Shaukat and Afzal and procuring the Ambassador Car are further common features of the two confessional statements. Minor contradictions here and there as to whether Shaukat procured the hide out at Christian Colony Or both of them procured the hide out are minor variations. The broad contours of the conspiracy are the broad contours of the confessional statements. 369. We, therefore, hold that the confessional statements have not only been validly proved but also the confessions have been validly recorded. The confessions are voluntary and suffered from no infirmity and are therefore admissible in evidence against accused Shaukat and Afzal, the makers of the confessional statements. 370. Are these two confessional statements admissible in evidence against co-accused SAR Gilani and Afzan Guru? It is true that under Section 30 of the Evidence Act, the confessional statement is admissible in evidence agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 for an offence under this Act or rules made there under: 375. Section 21 of TADA as originally enacted contained the following:- Section 21. Presumption as to offences under Section 3 In a prosecution for an offence under Sub-section (1) of Sec. 3 if it is proved:- (a)............ (b)............ (c ) that a confession has been made by a co-accused that the accused had committed the offence, or (d)............. the Designated court shall presume unless the contrary is proved that the accused had committed such offence. 376. The Legislature had, therefore consciously made the confession of a co-accused admissible in evidence against a accused when TADA was enacted. Since there was criticism of TADA, one of which being the presumption against the accused on a mere confession of a co-accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation provided by the accused, which was not in the knowledge of the police, if receives confirmation by subsequent investigations would be admissible under Section 27 of the Evidence Act. In support of the proposition, Sh. Gopal Subramanium, learned counsel for the prosecution relied upon the observations of the Hon'ble Supreme Court in its judgment , State of Maharashtra v. Damu. 380. We proceed with the reproduction of Section 27 of the Evidence Act. It reads as under:- 27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 381. Though the decision of the Privy Council reported as AIR 1947 PC 67 Pulukuri Kottaya and Ors. v. Emperor is considered to be the locus-classics on the scope and interpretation of Section 27 of the Evidence Act but we would prefer to peep a little more into history for that would enable us to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. 386. The argument of the prosecution, that on the recovery of the object, all information relevant to the object was admissible was rejected. The court observed that Section 27 could not be construed so sweepingly as would nullify the substance of Sections 25 and 26. It was held:- In their Lordhsips' view it is fallacious to treat fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. 387. It is thus to be noted that the place from where the object was produced and the knowledge of the accused persons that the object was at a particular place i.e. the twin going hand in hand was the fact discovered within the meaning of Section 27 of the Evidence Act. 388. The scope of the Section came again to be considered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration v. Om Prakash, it was held:- In the Full Bench Judgment of Seven Judges in Sukhan v. The Crown, 2nd 10 Lah 283 : (AIR 1929 Lah 344) (FB) which was approved by the Privy Council in Pulukuri Kotaya's case, 74 Ind App 65 : (AIR 1947 PC 67) Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological factor mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect.' That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly , indubitably strictly , unmistakably . The word has been advisedly used to limit and define the scope of the proveable information. The phrase distinctly relates to the fact thereby discovered (sic) (and ?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. 392. Having noted the above, though there are plethora of judgments on Section 27, we may refer to the judgment in State of Maharashtra v. Damu '(Supra) relied upon by the defense. 393. Counsel relied upon the following observations in para 35 of the judgment:- The basic idea embodied in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is based on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot. 396. We, therefore, hold, that in order that Section 27 may be brought in aid, the prosecution must establish:- 1. That consequent to the information given by the accused, it led to the discovery of some fact stated by him. 2. The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused. 3. Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information. 4. The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e. the knowledge of the accused of the place from where the object was produced and the knowledge that it was there. 5. Only such portion of the information as is distinctly connected with the said discovery is admissible. 6. The discovery of the fact must relate to the commission of some offence. 397. Fact discovered, therefore, has to be a combinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mobile No. 9810693456, recovered from the deceased terrorist Mohd. 5. The instrument IMEI No. 449269219639010 which was used initially on the SIM card having mobile No. 9811489429 belonging to Afzal was used in the SIM card pertaining to mobile No. 9810565284, recovered from the deceased terrorist Mohd. The instrument was finally recovered from the person of deceased/terrorist Raja which showed that accused Afzal was interchanging the instrument sometimes with the terrorist Raja and sometimes with the terrorist Mohd. When the attack was on, Afzal had received a call at 11:19:14 from the mobile No. 9811573506 from Mohd. On 7.12.2001, mobile No. 9811489429 had received a call from the satellite No. 8821651150059, from which satellite number, calls were received on the mobile number recovered from the deceased terrorist Mohd. as well as calls were received on the mobile number of Shaukat. Afzal remained in touch with the terrorists during the time when Parliament was under attack. 6. Afzal had taken on rent a second premises, House No. 281, Indira Vihar on rent on 9th December, 2001 where he was seen with five or six persons. He was last seen leaving the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al took on rent room No. 5, Boys' Hostel, B-41, Christian Colony on 7.11.2001 in which room the deceased terrorist Mohd. had stayed. 2. Cell phone No. 9810446375 which was recovered from the house of Shaukat was for the first time made operational on 2nd November, 2001. This coincides with the period when Afzal acquired a mobile phone and the first hide out was procured. This number was in contact with the satellite phone No. 8821651150059 and was also in communication with the mobile No. 9810693456 recovered from the deceased terrorist Mohd., on which number Mohd. had received calls from the same satellite phone No. 8821651150059, and even Afzal had received phone calls from this number. This establishes that Shaukat was in touch with Afzal and Mohd. during the period November-December, 2001 and all the three were in contact with the same satellite phone No. 8821651150059. 3. Shaukat's motorcycle was recovered from the hide out and was used for recee by the terrorists. 4. Shaukat along with Afzal had left the premises A-97, Gandhi Vihar along with 4/5 other boys in the morning of 13.12.2001 at about 10 A.M. in an Ambassador Car. 5. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and uptil 13th December, 2001. When Shaukat acquired the mobile phone 9810446375 on 2.11,2001, the first call was on the mobile number of S.A.R. Gilani. Again, when Shaukat changed his number to 9811573506 on 7.12.2001, the first call was to S.A.R. Gilani on his mobile phone. Further, Afzal had stopped using his mobile phone 9811489429 w.e.f. 29.11.2001 till 7.12.2001. On reactivation on 7.12.2001 the first call was at S.A.R. Gilani's phone. On 13.12.2001 at 12:15:09 hours, immediately after the attack Gilani had received a call from Shaukat and at 12:25:11 hours, he had made a call to Shaukat at Shaukat's mobile phone 9811573506. 404. There is, however, no evidence on record to establish that he remained in touch over the telephone with the terrorists. Prosecution alleged that the fact that Gilani was in touch with accused Afzal and Shaukat was a prima-facie evidence of his being a co-conspirator. Prosecution highlighted the fact that the mobile phone of Shaukat, when made operational for the first time, the first call was made to Gilani. After Shaukat's number went into disuse on 29.11.2001 and was again put to use after the break on 7.12.2001, the first call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to a conclusion that there was nothing which could incriminate Gilani as far as the conversation is concerned. 409. Finally, prosecution had relied upon the disclosure statement made by Gilani and had contended that the information provided in the disclosure statement was ultimately proved to be correct. 410. We have dealt with the law pertaining to Section 27 of the Evidence Act and since no recoveries were effected pursuant to the disclosure statement, we hold that nothing incriminating against accused S.A.R. Gilani has been brought out by the prosecution on the basis of the disclosure statement. 411. We have already held that under POTA a confession of an accused is not admissible in evidence against the co-accused. 412. We are, therefore, left with only one piece of evidence against accused S.A.R, Gilani being the record of telephone calls between him and accused Mohd. Afzal Shaukat. This circumstance, in our opinion, do not even remotely, far less definitely and unerringly point towards the guilt of accused S.A.R. Gilani. We, therefore, conclude that the prosecution has failed to bring on record evidence which cumulatively forms a cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Afzan pursuant to the alleged disclosure. From the evidence against accused Afzan Guru, we are of the opinion that even the offence that she had knowledge of the conspiracy and failed to report the same to the police is not established. She was admittedly a housewife and Shaukat was her husband. Merely because some meetings took place, assuming it to be correct, in the house would not be sufficient by itself to impute knowledge to her. 419. The only other piece of evidence against her is the telephonic call she had with Shaukat in the night of 18.12.2001 which was taped. The evidence is border line. Firstly, the call records show that it was of 49 seconds duration but the expert PW-48 Dr. Rajinder Singh who conducted the auditory and voice spectograph analysis of the taped conversation was categorical that the tape sent to him was of 2 minutes and 19 seconds duration. Secondly, assuming the conversation to be correct, it is certainly indicative of some thing suspicious. The cause could be, as stated by the prosecution that she was aware of her husband's activities and was therefore concerned. But it could well be that she was aware of the fact that Afzal was a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h there were five terrorists who attacked Parliament on 13.12.2001 but from the fire power available with them and they being armed to the teeth and had they succeeded, the entire Parliament which was in Session would have been wiped out, we hold that the actions of the terrorists would be acts of waging war against the Government of India. Accused Afzal and Shaukat were active participants in providing the logistic support. If not acts of waging war what they did would certainly be of acts of abetting the waging of war. We hold that accused Afzal and Shaukat guilty of committing the offence under Section 121 IPC. 427. Section 121-A makes the conspiracy to commit an offence punishable by Section 121, a substantive offence. We hold accused Afzal and Shaukat guilty of having committed the offence under Section 121-A IPC. 428. Section 122 IPC makes it an offence to collect arms or ammunition to wage war against the Government of India. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence under Section 122 of the IPC. 429. Admittedly 9 security personnels were killed by the terrorists when they broke into Parliament House, They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act. Explanation.- For the purposes of this sub-section, a terrorist act shall include the act of raising funds intended for the purpose of terrorism. (2) Whoever commits a terrorist act, shall, - (a) If such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (b) in any other case, be punishable with imprisonment for a term which shall not be less than 5 years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (4) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal, any person knowing that such person is a terrorist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the objects of such association would constitute a terrorist's act. There was no evidence that accused Afzal and Shaukat were member of an association declared unlawful under the Unlawful Activities (Prevention) Act or that they aided or promoted the objects of such associations. It was contended that accused Afzal and Shaukat could, therefore, neither be charged under Sub-section (2) of Section 3 of POTA, much less convicted there under. 433. Learned counsel for the prosecution, per contra, contended that the definition of a terrorist's act had to be construed in the light of the words, does any act or thing occurring in Clause (a) of Sub-section (1) of Section 3 coupled with the explanation to Sub-section (1) of Section 3. Relying on the explanation, the prosecution contended that if the raising of funds intended for the purposes of terrorism would make it a terrorist's act in the light of the explanation, the words, or thing in Clause (a) of Sub-section (1) of Section 3 makes the legislative intent clear, in that the doing of anything pertaining to explosive substances which were used to threaten the unity, integrity, security or sovereignty of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Explanation. - In this section notified area means such area as the State Government may, by notification in the Official Gazette, specify. 440. Evidence on record establishes that accused Afzal and Shaukat were in unauthorised possession of arms and explosives recovered from the hide outs. Indeed they were lethal. We therefore, hold them guilty of having committed the offence under Section 4(b) of POTA. 441. Sections 3 and 4 of The Explosive Substances Act, 1908 reads as under :- 3. Punishment for causing explosion likely to endanger life or property. Any person who unlawfully and maliciously causes by - (a) any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine; (b) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed the offence under Section 3 as well as the offence under Section 4 of The Explosive Substances Act. 444. As per the confession of Afzal and Shaukat, the sum of ₹ 10,00,000/- recovered from them were given to them by the terrorist Mohd. We accordingly forfeit the said amount to the Government of India. 445. We accordingly answer the murder reference in terms of our findings above. We affirm the conviction of accused Mohd. Afzal and accused Shaukat Hussain Guru in respect of the charges they stand convicted by the learned Special Judge, POTA. We acquit accused S.A.R. Gilani and accused Afzan Guru @ Navjot Sandhu from the charges. 446. As regards the sentence imposed by the learned Special Judge, POTA for the various offences of which accused Mohd. Afzal and accused Shaukat Hussain Guru stand convicted, we find that the learned Special Judge, POTA has given legally sound, adequate and justified reasons while imposing the sentence for various offences except for the offence u/s 121 of the Indian Penal Code. The learned Special Judge has imposed the sentence of life imprisonment. 447. The State commends us to enhance the sentence to on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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