Holding

In a review of a death‑sentence, CDRs lacking a Section 65B certificate must be excluded, but the remaining proven circumstantial evidence suffices to uphold the conviction, and factual issues cannot be reopened.

Summary

The case concerns a review of the death sentence awarded to Mohd. Arif alias Ashfaq for the 2000 Lal Quila firing that killed three army jawans. The petitioner challenged the conviction on four grounds: the admissibility of call data records (CDRs) without a Section 65B certificate, the validity of his disclosure statements, the link between recovered ammunition and his statement, and the possibility of rehabilitation. The Supreme Court, applying the principles laid down in Anvar P.V. and Arjun Panditrao, excluded the CDRs for lack of certification but held that the remaining circumstantial evidence unequivocally proved his involvement. The Court also ruled that factual matters such as disclosure statements and ammunition recovery cannot be re‑examined in a review, and that no mitigating circumstances were established to outweigh the aggravating factors. Consequently, the review petitions were dismissed, upholding the death sentence.

Issues considered

The admissibility of electronic evidence (CDRs) without a Section 65B(4) certificate in a review of a death‑penalty case.
Whether the petitioner’s disclosure statements and the recovery of ammunition can be reconsidered in a review petition.
The relevance of possible rehabilitation or retribution considerations in a review of a death sentence.
The scope and limits of review jurisdiction under Article 137 and Order 40 Rule 1 in death‑penalty matters.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 54, s. 59
Code of Criminal Procedure, 1973s. 313
Explosive Substances Act, 1908s. 4, s. 5
Foreigners Act, 1946s. 14
Indian Evidence Act, 1872s. 63, s. 65, s. 65B
Indian Penal Code, 1860s. 120B, s. 121, s. 121A, s. 14, s. 186, s. 201, s. 302, s. 307, s. 353

Subjects

death penaltyreview petitionelectronic evidenceSection 65Bcall data recordscircumstantial evidenceterrorismwaging warrarest of rarerehabilitationmitigating circumstances

Judgment

792 [2022]REPORTS
SUPREME COURT 7 S.C.R. 792 [2022] 7 S.C.R.

A MOHD. ARIF @ ASHFAQ
v.
STATE (NCT OF DELHI)
(Review Petition (Crl.) Nos. 286-287 of 2012)
B in
(Criminal Appeal Nos. 98-99 of 2009)
NOVEMBER 03, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT
C AND BELA M. TRIVEDI, JJ.]
Review Petition – Death Penalty – In firing incident inside
Lal Quila, three army jawans received fatal injuries and lost their
lives – Review Petitioner was tried and was awarded death sentence
– Death sentence was confirmed by High Court – Petitioner
D preferred appeal before Supreme Court – The challenge was negated
and award of death to the petitioner was affirmed – Review petitions
before Division Bench were dismissed – Curative petition filed by
review petitioner also dismissed –Thereafter writ petition was
preferred on ground that the review petitions in matters arising out
of award of death sentence be heard by three judge bench in open
E Court –On review, held: Challenge raised in these review petitions
were on grounds such as admissibility of electronic evidence,
reliability and admissibility of disclosure statement, relevancy of
recovered ammunition and possibility of rehabilitation of the review
petitioner – Electronic evidence in form of CDRs which was without
F any appropriate certificate must be eschewed – Even after
eschewing such circumstances directly attributable to the CDRs,
the other circumstances on record do clearly spell out and prove
beyond any doubt the involvement of review petitioner in the crime
in question – In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of such disclosure statement
G on issues of fact – Submission that recovery of ammunition or
encounter of ‘A’ could not be associated with the disclosure statement
of the review petitioner is not quite correct – Nothing on record
which can be taken to be a mitigating circumstance in favour of the
review petitioner – Suggestion that there is a possibility of retribution
H and rehabilitation, is not made out from and supported by any
792
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 793

material on record – Review petitions dismissed – Evidence Act, A
1872 – s.65B.
Review – In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of disclosure statement on
issues of fact.
Dismissing the review petitions, the Court B

HELD: 1. In review petitions, the challenge is raised
principally on four grounds: -
(a) The concerned Courts committed error in allowing call
records to be admitted in evidence, in the absence of an C
appropriate certificate under Section 65B of the Indian Evidence
Act, 1872
(b) The disclosure statements of the review petitioner must
be taken to be inadmissible on account of ill treatment meted out
to him during the intervening night between his actual arrest and D
his formal arrest.
(c) The recovery of ammunition or the encounter of one
Abu Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
disclosure statement of the review petitioner.
E
(d) Any possibility of retribution and rehabilitation of the
review petitioner, or that he would continue to be a threat to the
society, was not considered by the Courts. [Para 12][807-G; 808-
A-B]
2. Since the instant matter pertains to award of death F
sentence, this review petition must be considered in light of the
decisions made by this Court in Anvar P.V. and Arjun Panditrao.
Consequently, one must eschew, for the present purposes, the
electronic evidence in the form of CDRs which was without any
appropriate certificate under Section 65-B(4) of the Evidence Act.
Circumstances mentioned at Serial Nos. ‘h’ and ‘j’ become G
extremely weak as the tracing of calls received by PWs 39 and
41 to Mobile was possible only through CDRs. These
circumstances must not, therefore, be taken into account. Even
after eschewing circumstances ‘h’ and ‘j’ which were directly
attributable to the CDRs relied upon by the prosecution, the other H
794 SUPREME COURT REPORTS [2022] 7 S.C.R.

A circumstances on record do clearly spell out and prove beyond
any doubt the involvement of the review petitioner in the crime
in question. [Paras 23-26][822-D-E, H; 823-A]
Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399 and Arjun Panditrao Khotkar v.
B Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC
1- relied on.
3. Grounds ‘b’ and ‘c’ are purely factual in nature. The
disclosure statement, as a matter of fact, was held to have been
proved by the Courts below and this Court. In review jurisdiction,
C it will not be possible to enter into questions regarding
admissibility of such disclosure statement on issues of fact. After
the person concerned named Abu Shamal alias Faisaln died in
the encounter, certain fire arms and ammunition were recovered.
The submission that such recovery of ammunition or the
encounter of Abu Shamal could not be associated with the
D disclosure statement of the review petitioner is not quite correct.
This Court therefore rejects both the grounds taken in ‘b’ and
‘c’ as referred. [Para 27][823-B, C-D]
4. There is nothing on record which can be taken to be a
mitigating circumstance in favour of the review petitioner. The
E suggestion that there is a possibility of retribution and
rehabilitation, is not made out from and supported by any material
on record. On the other hand, the aggravating circumstances
evident from the record and specially the fact that there was a
direct attack on the unity, integrity and sovereignty of India,
F completely outweigh the factors which may even remotely be
brought into consideration as mitigating circumstances on record.
The submission so advanced under ground (d) does not merit
any acceptance and is, therefore, rejected. [Para 30][831-G-H;
832-A-B]

G Mohd. Arif alias Ashfaq v. State (NCT of Delhi) (2011)
13 SCC 621 : [2011] 10 SCR 56; Mohd. Arif Alias
Ashfaq v. Registrar, Supreme Court of India & Ors.
(2014) 9 SCC 737 : [2014] 11 SCR 1009; Mohd. Arif
alias Ashfaq v. Registrar, Supreme Court of India &
Ors. (2019) 9 SCC 404; Vikram Singh alias Vicky Walia
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 795

& Anr. v. State of Punjab & Anr. (2017) 8 SCC 518 : A
[2017] 8 SCR 177; Akshay Kumar Singh v. State (NCT
of Delhi) (2020) 3 SCC 431; Shafi Mohammed v. State
of Himachal Pradesh (2018) 2 SCC 801; Vasanta
Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850; State (NCT of Delhi) v. Navjot
B
Sandhu alias Afsan Guru (2005) 11 SCC 600 : [2005]
2 Suppl. SCR 79; Tomaso Bruno & Anr. v. State of Uttar
Pradesh (2015) 7 SCC 178 : [2015] 1 SCR 721 and
Sonu alias Amar v. State of Haryana (2017) 8 SCC 570
: [2017] 8 SCR 151– referred to.
Case Law Reference C

[2014] 11 SCR 1009 referred to Para 7
(2019) 9 SCC 404 referred to Para 8
[2017] 8 SCR 177 referred to Para 13
D
(2020) 3 SCC 431 referred to Para 14
[2014] 11 SCR 399 relied on Para 15
(2020) 7 SCC 1 relied on Para 15
[2005] 2 Suppl. SCR 79 referred to Para 17
E
[2015] 1 SCR 721 referred to Para 19
[2017] 8 SCR 151 referred to Para 20
(2018) 2 SCC 801 referred to Para 21
[2017] 3 SCR 850 referred to Para 29 F
INHERENT JURISDICTION: Review Petition (Crl.) Nos. 286-
287 of 2012 in Criminal Appeal Nos. 98-99 of 2009.
From the Judgment and Order dated 10.08.2011 of this Court in
Criminal Appeal Nos. 98-99 of 2009.
Siddharth Agarwal, Sr. Adv., Abhinav Sekhri, Amartya Kanjilal, G
Vishwajeet Bhati, Ms. Arshiya Ghose, Mohd. Irshad Hanif, Advs. for
the Petitioner.
S V Raju, ASG, Sairica Raju, Ms. Binu Tamta, Ms. Suhashini Sen,
Ms. Swati Ghildiyal, Ashutosh Gadhe, Anshuman Singh, B. V. Balaram
Das, Advs. for the Respondent. H
796 SUPREME COURT REPORTS [2022] 7 S.C.R.

A The Judgment of the Court was delivered by
UDAY UMESH LALIT, CJI.
1. These review petitions arise out of the judgment and order
dated 10.8.20111 passed by this Court in Criminal Appeal Nos. 98-99/
2009.
B
2. According to the prosecution, on the night of 22.12.2000 some
intruders entered the area where the Unit of 7 Rajputana Rifles of the
Indian Army was stationed inside the Red Fort, New Delhi. In the firing
that was opened by the intruders, three Army jawans lost their lives.
The intruders then left by scaling the rear-side boundary wall of the Red
C Fort. This led to the lodging of FIR No. 688/2000 registered with Kotwali
Police Station, New Delhi in respect of offences punishable under Sections
302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 of the Indian Penal
Code, 18602 read with Sections 25, 27, 54 and 59 of the Arms Act, 1959,
Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the Explosive
D Substances Act, 1908 and Sections 420, 468, 471, 474 and 34, IPC. In
the investigation, the involvement of the present review petitioner was
made out.
3. The review petitioner, who was tried for said offences, was
awarded death sentence vide judgment and order dated 31.10.2005
E passed by the Court of Additional Sessions Judge, Delhi in Sessions
Case Nos. 1/2005, 2/2005, 5/2005, 7/2005, 8/2005, 9/2005, 10/2005 and
11/2005, which arose out of the aforestated FIR. The award of death
sentence was subject to confirmation by the High Court.
4. The matter was thereafter considered by the High Court in
F Death Sentence Reference No. 2/2005 with Criminal Appeal Nos. 891/
2005, 892/2005, 907/2005, 927/2005, 944-945/2005, 946/2005, 273/2006
and 504/2006. The view taken by the trial Court was affirmed by the
High Court vide its judgment dated 13.9.20073.
5. The matter then reached this Court in the form of Criminal
Appeal Nos. 98-99/2009 at the instance of the review petitioner. However,
G
the challenge was negated by this Court and the award of death sentence
to the petitioner was affirmed vide judgment dated 10.8.2011, which has
resulted in filing of the instant review petitions.
1
Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621
2
“IPC” for short
H 3
(2007) SCC Online Del 1259
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 797
[UDAY UMESH LALIT, CJI]

6. The instant review petitions had initially come up before the A
Bench of two Judges and by order dated 28.8.2012, the review petitions
were dismissed. Curative Petition (Crl.) Nos.99-100/2013 filed by the
review petitioner sought to challenge the view taken by the Division
Bench of this Court in dismissal of the appeals, as well as, the review
petitions. However, the curative petitions were also dismissed by this
B
Court vide order dated 23.1.2014.
7. Soon thereafter, Writ Petition (Crl.) No. 77/2014 was preferred
by the review petitioner submitting inter alia, that the review petitions
in matters arising out of award of death sentence be heard by a Bench
of three Judges and in open Court. The Constitution Bench of this Court
by its judgment dated 2.9.20144 concluded that in all cases in which C
death sentence was awarded by the High Court, such matters be listed
before a Bench of three Judges. The relevant observations in paragraph
39 were as under:
“39. Henceforth, in all cases in which death sentence has been
awarded by the High Court in appeals pending before the Supreme D
Court, only a bench of three Hon’ble Judges will hear the same.
This is for the reason that at least three judicially trained minds
need to apply their minds at the final stage of the journey of a
convict on death row, given the vagaries of the sentencing
procedure outlined above. At present, we are not persuaded to E
have a minimum of 5 learned Judges hear all death sentence cases.
Further, we agree with the submission of Shri Luthra that a review
is ordinarily to be heard only by the same bench which originally
heard the criminal appeal. This is obviously for the reason that in
order that a review succeeds, errors apparent on the record have
to be found. It is axiomatic that the same learned Judges alleged F
to have committed the error be called upon now to rectify such
error. We, therefore, turn down Shri Venugopal’s plea that two
additional Judges be added at the review stage in death sentence
cases.”
8. A question still arose: whether in matters where the review G
petitions had already stood rejected when the aforementioned decision
was rendered by the Constitution Bench of this Court, could there be

4
Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2014) 9 SCC
737 H
798 SUPREME COURT REPORTS [2022] 7 S.C.R.

A reopening of the matter and the review petition be reheard? A subsequent
Constitution Bench in its order dated 19.1.20165 observed as under: -
“9. In the circumstances therefore and especially in view of the
fact that the petitioner is perhaps the only person that will suffer
the denial of the right to an open court hearing, we are inclined to
B modify the judgment on review and direct that the petitioner shall
also be entitled to seek reopening of the dismissal of the review
petitions for an open court hearing within one month from today.
We permit the petitioner to raise all such additional grounds in
support of the said review petition as may be legally permissible
to him.”
C
9. In this backdrop, the instant review petitions are listed before
us for rehearing.
10. At this stage, we may set out certain circumstances which
were found to have been proved by the High Court and this Court. In
D paragraph Nos. 182-191 of the judgment which is presently under review,
it was observed as under: -
“182. The High Court has held proved the following circumstances
against the appellant:
“(a) On the night of 22-12-2000 there was an incident of firing
E inside Lal Quila when some intruders had managed to enter
that area of Lal Quila where the unit of 7th Rajputana Rifles of
the Indian Army was stationed.
(b) In that incident of shooting the intruders had fired
indiscriminately from their AK-56 rifles as a result of which
F three army jawans received firearm injuries and lost their lives.
(c) The death of three army jawans was homicidal.
(d) Immediately after the quick reaction team of the army fired
back upon the intruders as a result of which the intruders escaped
from the place of occurrence by scaling over the rear side
G boundary wall of Lal Quila towards the Ring Road side and
when the place of occurrence was searched by the army men
many assault rifle fired cartridge cases were recovered from
the place of occurrence.
5
Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2019) 9 SCC
H 404
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 799
[UDAY UMESH LALIT, CJI]

(e) Immediately after the intruders who had resorted to firing A
inside the army camp had escaped from there, calls were made
by someone on the telephones of two BBC correspondents
one of whom was stationed at Srinagar and the other one was
stationed at Delhi office of BBC and the caller had informed
them about the shooting incident inside Lal Quila and had also
B
claimed the responsibility of that incident and that that was the
job of Lashkar-e-Toiba, which the prosecution claims to be a
banned militant organization indulging in acts of terrorism in
our country.
(f) On the morning of 23-12-2000 one AK-56 rifle was
recovered from a place near Vijay Ghat on the Ring Road C
behind Lal Quila.
(g) On 23-12-2000 when the policemen conducted search
around Lal Quila in the hope of getting some clue about the
culprits they found one piece of paper lying outside Lal Quila
near the rear side boundary wall towards Ring Road side and D
on that piece of paper one Mobile Phone No. 9811278510 was
written.
(h) Mobile Phone No. 9811278510 was used for making calls
to the two BBC correspondents (PWs 39 and 41) immediately
after the shooting incident inside Lal Quila and the caller had E
claimed the responsibility for that incident and had informed
them that the incident was the job of Lashkar-e-Toiba.
(i) The aforesaid mobile phone number found written on a piece
of paper lying behind Lal Quila had led the police up to Flat
No. 308-A, Ghazipur, New Delhi where accused Mohd. Arif F
alias Ashfaq was found to be living and when on being
suspected of being involved in the shooting incident he was
apprehended on the night of 25-12-2000/26-12-2000 one pistol
and some live cartridges were recovered from his possession
for which he did not have any licence. G
(j) At the time of his arrest in case FIR No. 688 of 2000 one
mobile phone having No. 9811278510 was recovered from his
possession and it was the same mobile number from which
calls had been made to the two BBC correspondents for
H
800 SUPREME COURT REPORTS [2022] 7 S.C.R.

A informing them about the incident and Lashkar-e-Toiba being
responsible for that incident.
(k) Immediately after his apprehension accused Mohd. Arif
alias Ashfaq admitted his involvement in the shooting incident
inside Lal Quila and also disclosed to the police about his another
B hide-out at G-73, Batla House, Muradi Road, Okhla, New Delhi
and pursuant to his disclosure the police had gone to that hide-
out where the occupant of that house started firing upon the
police team and when the police team returned the firing, that
person, who was later on identified by accused Mohd. Arif
alias Ashfaq to be one Abu Shamal alias Faizal, died because
C of the firing resorted to by the policemen. From House No. G-
73, where the encounter had taken place, one AK-56 rifle and
some live cartridges and hand grenades were recovered.
(l) Accused Mohd. Arif alias Ashfaq while in police custody
had also disclosed to the police that one assault rifle had been
D thrown near Vijay Ghat after the incident. The police had
already recovered one AK-56 rifle from Vijay Ghat on the
morning of 23-12-2000. Accused Mohd. Arif alias Ashfaq had
thus the knowledge about the availability of that AK-56 rifle at
Vijay Ghat.
E (m) Accused Mohd. Arif alias Ashfaq had also got recovered
one AK-56 rifle and some ammunition from behind Lal Quila
on 26-12-2000.
(n) Accused Mohd. Arif alias Ashfaq had also got recovered
three hand grenades from some place behind his computer
F centre in Okhla on 1-1-2001 pursuant to his another disclosure
statement made by him while in police custody.
(o) When the assault rifle fired cartridge cases which were
recovered from the place of occurrence by the army men after
the intruders had escaped from there were examined by the
G ballistic expert along with the AK-56 rifle which was recovered
at the instance of accused Mohd. Arif alias Ashfaq from behind
Lal Quila on 26-12-2000 and the AK-56 rifle which was
recovered from Vijay Ghat on 23-12-2000 it was found by the
ballistic expert (PW 202) that some of the assault rifle fired
cartridge cases had been fired from the rifle recovered from
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 801
[UDAY UMESH LALIT, CJI]

behind Red Fort and some had been fired from the other rifle A
Ih was recovered from Vijay Ghat.
(p) Appellant-accused Mohd. Arif alias Ashfaq was a Pakistani
national and had entered the Indian territory illegally.
(q) After making illegal entry into India appellant-accused
Mohd. Arif alias Ashfaq had been representing to the people B
coming in his contact during his stays at different places that
he was a resident of Jammu and was doing the business of
shawls while, in fact, he had no such business and he had been
collecting money through hawala channels.
(r) Accused Mohd. Arif alias Ashfaq had obtained a forged C
ration card, Ext. PW-164/A wherein not only his house number
mentioned was not his correct address but even the name of
his wife shown therein was not Rehmana Yusuf Farukhi. He
had also forged his learner driving licence, Ext. PW-13/C as
well as one document, Ext. PW-13/E purporting to be a D
photocopy of another ration card in his name with his residential
address of Ghaziabad where he admittedly never resided and
he submitted that document with the Ghaziabad Transport
Authority for obtaining permanent driving licence. In the learner
driving licence also he had shown his residential addresses
where he had never actually resided. All that he did was to E
conceal his real identity as a militant having entered the Indian
territory with the object of spreading terror with the help of his
other associate militants whom unfortunately the police could
not apprehend and some expired before they could be tried.”
183. In addition to these circumstances, there is another F
circumstance that a message was intercepted by BSF vide
Exhibit PW-162/A and proved by PW 162 Inspector J.S.
Chauhan dated 26-12-2000 wherein there was a specific
reference to the accused. Still another circumstance would be
that the accused had no ostensible means of livelihood and yet G
he deposited Rs 29,50,000 in three accounts, namely, Standard
Chartered Grindlays Bank, Connaught Place (known as ANZ
Grindlays Bank) bearing Account No. 32263962 of M/s Nazir
& Sons, Standard Chartered Grindlays Bank bearing Account
No. 28552609 of Bilal Ahmad Kawa and Standard Chartered
H
802 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Bank bearing Account No. 32181669 of Farooq Ahmed Qasid
and also deposited some amounts in the account of Rehmana
Yusuf Farukhi and he had no explanation of these huge amounts,
their source or their distribution. Lastly, the appellant gave a
fanciful and a completely false explanation about his entering
in India and his being a member of RAW and thereby, his having
B
interacted with Nain Singh (PW 20).
184. We are in complete agreement with the findings regarding
the incriminating circumstances as recorded by the High Court.
On the basis of the aforementioned circumstances, the High
Court came to the conclusion that the appellant was responsible
C for the incident of shooting inside Lal Quila (Red Fort) on the
night of 22-12-2000, which resulted in the death of three soldiers
of army. It has also been held by the High Court that this was
a result of well-planned conspiracy between the appellant and
some other militants including deceased Abu Shamal alias Faizal
D who was killed in an encounter with the police at House No.
G-73, Batla House, Muradi Road, Okhla, New Delhi. The High
Court has also deduced that it was at the instance of the
appellant that the police could reach that spot.
185. The High Court has further come to the conclusion that it
E was in a systematic manner that the appellant came to India
illegally and collected highly sophisticated arms and ammunition
meant for mass destruction. The High Court further held that
he chose to select Red Fort for an assault along with his other
associates, Red Fort being a place of national importance for
India. The High Court has also recorded a finding that the
F chosen attack was on the army camp which was stationed
there to protect this monument of national importance. The
High Court has, therefore, deduced that it was an act of waging
war against the Government of India. It is further held that the
associates, with whom the appellant had entered into
G conspiracy, had attacked the army camp, which suggests that
there was a conspiracy to wage war against the Government
of India, particularly, because in that attack, sophisticated arms
like AK-47 and AK-56 rifles and hand grenades were used.
186. The High Court also took note that this aspect regarding
H waging war was not even argued by the learned counsel
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 803
[UDAY UMESH LALIT, CJI]

appearing for the defence. It is on this basis that the appellant A
was held guilty for the offences punishable under Sections 120-
B, 121-A, 121 IPC, Section 120-B read with Section 302 IPC
and Sections 468/471/474 IPC and also the offences under
Sections 186/353/120-B IPC. He was also held guilty for the
offence under Section 14 of the Foreigners Act, since it was
B
proved that the appellant, a foreigner, had entered the territory
of India without obtaining the necessary permissions and
clearance. Similarly, the appellant was also held guilty for the
offences under the Arms Act as well as the Explosive
Substances Act on account of his being found with a pistol and
live cartridges. C
187. The law on the circumstantial evidence is, by now, settled.
In Sharad Birdhichand Sarda v. State of Maharashtra (1984)
4 SCC 116 this Court drew out the following test for relying
upon the circumstantial evidence: (SCC p. 185, para 153)
“153. … (1) the circumstances from which the conclusion D
of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis except
that the accused is guilty, E

(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and F
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.”
G
The principle of this judgment was thereafter followed in a
number of decisions, they being Tanviben Pankajkumar
Divetia v. State of Gujarat (1997) 7 SCC 156, State (NCT of
Delhi) v. Navjot Sandhu (2005) 11 SCC 600, Vikram
Singh v. State of Punjab (2010) 3 SCC 56 and Aftab Ahmad
Anasari v. State of Uttaranchal (2010) 2 SCC 583, etc. H
804 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 188. It is to be noted that in the last mentioned decision of Aftab
Ahmad Anasari v. State of Uttaranchal (2010) 2 SCC 583, the
observation made is to the following effect: (SCC p. 589, paras
13-14)
“13. In cases where evidence is of a circumstantial nature,
B the circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact must be proved individually and only thereafter the court
should consider the total cumulative effect of all the proved
facts, each one of which reinforces the conclusion of the guilt.
If the combined effect of all the facts taken together is
C conclusive in establishing the guilt of the accused, the conviction
would be justified even though it may be that one or more of
these facts, by itself/themselves, is/are not decisive. The
circumstances proved should be such as to exclude every
hypothesis except the one sought to be proved. But this does
D not mean that before the prosecution case succeeds in a
case of circumstantial evidence alone, it must exclude each
and every hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be.
14. There must be a chain of evidence so far complete as not
E to leave any reasonable ground for conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability, the act must have been done
by the accused. Where the various links in a chain are in
themselves complete, then a false plea or a false defence may
be called into aid only to lend assurance to the court.”
F
(emphasis supplied)
189. The Court further went on to hold that in applying this principle,
distinction must be made between the facts called primary or basic,
on the one hand, and the inference of facts to be drawn from
G them, on the other. The Court further mentioned that: (Aftab
Ahmad Anasari case (2010) 2 SCC 583, SCC p. 590, para 15)
“15. … In drawing these inferences or presumptions, the court
must have regard to the common course of natural events, and
to human conduct and their relations to the facts of the particular
case.”
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 805
[UDAY UMESH LALIT, CJI]

To the similar effect are the observations made A
in Vikram Singh v. State of Punjab (2010) 3 SCC 56.
190. There can be no dispute that in a case entirely dependent on
the circumstantial evidence, the responsibility of the prosecution
is more as compared to the case where the ocular testimony or
the direct evidence, as the case may be, is available. The Court, B
before relying on the circumstantial evidence and convicting the
accused thereby has to satisfy itself completely that there is no
other inference consistent with the innocence of the accused
possible nor is there any plausible explanation. The Court must,
therefore, make up its mind about the inferences to be drawn
from each proved circumstance and should also consider the C
cumulative effect thereof. In doing this, the Court has to satisfy
its conscience that it is not proceeding on the imaginary inferences
or its prejudices and that there could be no other inference possible
excepting the guilt on the part of the accused.
191. We respectfully agree with the principles drawn in the D
abovementioned cases and hold that the prosecution was
successful in establishing the abovementioned circumstances
against the appellant, individually, as well as, cumulatively. There
indeed cannot be a universal test applicable commonly to all the
situations for reaching an inference that the accused is guilty on E
the basis of the proved circumstances against him nor could there
be any quantitative test made applicable. At times, there may be
only a few circumstances available to reach a conclusion of the
guilt on the part of the accused and at times, even if there are
large numbers of circumstances proved, they may not be enough
to reach the conclusion of guilt on the part of the accused. It is the F
quality of each individual circumstance that is material and that
would essentially depend upon the quality of evidence. Fanciful
imagination in such cases has no place. Clear and irrefutable logic
would be an essential factor in arriving at the verdict of guilt on
the basis of the proved circumstances. In our opinion, the present G
case is such, as would pass all the tests so far devised by this
Court in the realm of criminal jurisprudence.”
11. Some of the other features of the matter, as noted by this
Court, were: -
H
806 SUPREME COURT REPORTS [2022] 7 S.C.R.

A “151. The prosecution proved 9 cash deposit slips of Grindlays
Bank, the total amount being Rs 29,50,000. According to the
prosecution, these were in appellant’s handwriting while the
depositors’ names have been mentioned as Aslam, Salim Khan,
R.K. Traders and Rashid. We have already discussed about the
fake residential address given by the appellant while opening the
B
account with HDFC Bank. The details of this account were proved
by Sanjeev Srivastava (PW 22). He proved Exhibits PW-22/B, C
and F. Exhibit PW-22/F is a copy of the account statement of
Rehmana, the wife of the accused which suggests that from 15-
9-2000 onwards up to 14-12-2000, on various dates, amounts like
C Rs 10,000, Rs 40,000, Rs 50,000, Rs 1,50,000, Rs 2,00,000, etc.
were deposited in cash. The total amount deposited was Rs
5,53,500. There is absolutely no explanation by the appellant about
the source from which these amounts came.
xxx xxx xxx
D 153. The most important link with the HDFC account as also with
the deposit slips of Standard Chartered Grindlays Bank came to
light. Dr. M.A. Ali (PW 216), SSO, CFSL, CBI, New Delhi, on
the basis of his report, deposed that the account opening form of
HDFC Bank of the appellant, 9 deposit slips of Standard Chartered
E Grindlays Bank as also deposit slips of State Bank of India account
of Rehmana Yusuf Farukhi bore the handwriting of the appellant.
This clinches the issue about the account opened in HDFC Bank.
It is to be noted that there were three accounts in Standard
Chartered Grindlays Bank in the name of M/s Nazir & Sons,
Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18) which
F had Account Nos. 32263962, 28552609 and 32181669 respectively.
The investigating agency collected the documents from Standard
Chartered Grindlays Bank including 9 cash deposit receipts as
also documents regarding the Account Nos. 32263962, 28552609
and 32181669. 9 cash deposit slips are purportedly in the name of
G Aslam, Salim Khan, R.K. Traders and Rashid and all these have
been proved to be in the handwriting of the appellant.
xxx xxx xxx
159. The argument of Ms Jaiswal, learned counsel appearing on
behalf of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq
H Ahmed Qasid (A-4) have already been acquitted, is of no
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 807
[UDAY UMESH LALIT, CJI]

consequence. We may point out that there is absolutely no A
explanation by the appellant either by way of cross-examination
of the witnesses or by way of his statement under Section 313
CrPC as to where all these amounts had come from and why did
he deposit huge amounts in the three accounts mentioned above.
Rs 29,50,000 is not an ordinary sum. Also, there is no evidence
B
that in his account in HDFC Bank, the appellant has Rs 6 lakhs.
Further, a very sizeable amount is shown to have been paid to
Rehmana Yusuf Farukhi in her account in State Bank of India.
How did the appellant receive all these amounts and from where,
are questions that remain unanswered in the absence of any
explanation and more particularly because the appellant had no C
ostensible means of livelihood. It would have to be held that the
appellant was dealing with huge sums of money and he has no
explanation therefor. This is certainly to be viewed as an
incriminating circumstance against the appellant. The silence on
this issue is only telling of his nefarious design.
D
160. It is obvious that the appellant was a very important wheel in
the whole machinery which was working against the sovereignty
of this country. All this was supported by the fact that 9 deposit
slips, the bank forms for opening the accounts, the slip through
which the amount was deposited in the account of Rehmana Yusuf
Farukhi, were all proved to be in the handwriting of the appellant. E
We have absolutely no reason to reject the evidence of the
handwriting expert. All this suggests that the appellant was weaving
his web of terrorist activities by taking recourse to falsehood one
after the other including his residential address and also creating
false documents.” F
12. In these review petitions, the challenge is raised principally on
four grounds: -
(a) The concerned Courts committed error in allowing call records
to be admitted in evidence, in the absence of an appropriate
certificate under Section 65B of the Indian Evidence Act, G
18726.
(b) The disclosure statements of the review petitioner must be
taken to be inadmissible on account of ill-treatment meted out

6
“the Evidence Act”, for short. H
808 SUPREME COURT REPORTS [2022] 7 S.C.R.

A to him during the intervening night between his actual arrest
and his formal arrest.
(c) The recovery of ammunition or the encounter of one Abu
Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
B disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the review
petitioner, or that he would continue to be a threat to the society,
was not considered by the Courts.
13. On the other hand, it is submitted on behalf of the State, that
C the scope of a review petition even in matters arising out of award of
death sentence would be extremely limited. Reliance has been placed
on the decisions of this Court in Vikram Singh alias Vicky Walia &
Anr. vs. State of Punjab & Anr.7 and specially the following paragraph:-
“23. In view of the above, it is clear that scope, ambit and
D parameters of review jurisdiction are well defined. Normally in a
criminal proceeding, review applications cannot be entertained
except on the ground of error apparent on the face of the record.
Further, the power given to this Court under Article 137 is wider
and in an appropriate case can be exercised to mitigate a manifest
E injustice. By review application an applicant cannot be allowed to
reargue the appeal on the grounds which were urged at the time
of the hearing of the criminal appeal. Even if the applicant succeeds
in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground
for review. This Court shall exercise its jurisdiction to review only
F when a glaring omission or patent mistake has crept in the earlier
decision due to judicial fallibility. There has to be an error apparent
on the face of the record leading to miscarriage of justice to
exercise the review jurisdiction under Article 137 read with Order
40 Rule 1. There has to be a material error manifest on the face
G of the record with results in the miscarriage of justice.”
14. Reliance has further been placed on the decision of this Court
in Akshay Kumar Singh vs. State (NCT of Delhi)8, where it was
observed by this Court as under: -
7
(2017) 8 SCC 518
8
H (2020) 3 SCC 431
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 809
[UDAY UMESH LALIT, CJI]

“7. In this review petition, the petitioner prays for review of the A
judgment dated 5-5-2017 [Mukesh v. State (NCT of Delhi), (2017)
6 SCC 1]. In the review petition before us, the petitioner has
again sought to assail the merits of the prosecution case and the
findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and B
review cannot be entertained except in cases of error apparent
on the face of the record. Article 137 of the Constitution of India
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
Parliament or any rule made under Article 145 of the Constitution
of India. C

9. Order 47 Rule 1 of the Supreme Court Rules, 2013 dealing
with review reads as follows:
“1. The Court may review its judgment or order, but no
application for review will be entertained in a civil proceeding D
except on the ground mentioned in Order 47 Rule 1 of the
Code, and in a criminal proceeding except on the ground of an
error apparent on the face of the record.”
As per the Supreme Court Rules, review in the criminal
proceedings is permissible only on the ground of error apparent E
on the face of the record.
xxx xxx xxx
11. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to reappreciate the evidence
and reach a different conclusion. The scope of review jurisdiction F
has been elaborately considered by this Court in number of cases
and the well-settled principles have been reiterated time and
again……”
15. The basic submission in the instant matter, as advanced by
Mr. Siddharth Agarwal, learned senior counsel on behalf of the review G
petitioner is about the admissibility of electronic record being Call Data
Records (CDRs) (Exhibit PW-198/B1-B3), CDRs (Exhibit PW-198/E)
and CDR (Exhibit PW-229/A). It is submitted that on the strength of the
law declared by this Court in Anvar P.V. vs. P.K. Basheer & Ors.9, as
9
(2014) 10 SCC 473 H
810 SUPREME COURT REPORTS [2022] 7 S.C.R.

A affirmed by this Court in Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal & Ors.10, certification under Section 65B of the
Evidence Act would be a pre-requisite for admissibility of an electronic
record such as CDRs; that there being total non-compliance of this
mandatory requirement, the afore-stated CDRs would be inadmissible
and must be eschewed from consideration at every juncture. The
B
extension of the submission is that the entire fulcrum of the prosecution
case rested on these CDRs and minus this evidence, there is hardly
anything which could prove the identity and involvement of the petitioner
in the crime in question.
16. The submission advanced on behalf of the review petitioner
C on the first ground as set out in the Note given by the learned Senior
Counsel is as under: -
“A. Admissibility of electronic records
(i) The central feature of the Prosecution case permeating the
D entire Judgment under Review are circumstances and inferences
that have been drawn on the strength of anlysis of electronic
records (CDRs). Specifically, Circumstance H, I and J deal with
this issue.
(ii) Case involves analysis of Call Detail Records (“CDRs”) of
E 9811278510 (“8510”) & 9811242154 (“2154”). Prosecution Case
is that PW-229 MC Sharma conducted investigation pertaining to
CDRs of these two numbers.
• PW-229 (@ 305-308 of Vol. II)
(iii) In respect of 8510, Prosecution produced CDR which is
F Ex.PW-198/ B1-B3 (@ 57-59 of Vol.III) whereas for 2154
prosecution has produced CDRs Ex.PW-198/E (@67-75 of
Vol.III) & Ex. PW-229/A (@ 48-52 of Vol.III). None of these
have any certificate as required under Section 65B in IEA.
(iv) The number 8510 (sim card) was never recovered and the
G handset in which it was used from 26.10.2000 to 14.11.2000 (IMEI
ending with “0240”) was also not recovered. No Customer
Application Form (CAF) or any other document that establishes
ownership or possession was produced. Not a single person known
to the Petitioner was sked to provide his mobile number (despite
10
H (2020) 7 SCC 1
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 811
[UDAY UMESH LALIT, CJI]

multiple being examined) [See: PW-20 (@ 12 of Vol.I), PW-31 A
(@ 4 of Vol.I) PW-37 (@ 50 of Vol.I), PW-56 (@ 60 of Vol.I),
PW-232 (@ 415 of Vol.II)]. Police never accessed the instrument
to examine call logs, message etc. (PW-148 @ 96 of Vol.I) and
the sole link to all inferences is the purported CDRs.
(v) CDRs provided by PW-198 Rajiv Pandit in February/ March B
2001 (Ex. PW-198/A @ 63 of Vol.III; Ex.PW-198/D @ 89 of
Vol.III) were not and could not have been the basis for analysis
by PW-229. The Court has acted upon oral testimony of PW-229
as to the contents of CDRs of 8510, and Ex.PW-229/A (@ 48 of
Vol.III) – unauthenticated secondary evidence of secondary
evidence – with respect to contents of CDRs of 2154. This is the C
teeth of S.65B IEA, S.63/65 IEA as well as S.59 IEA. Even
otherwise, the contents of the CDRs are different from the oral
testimony of PW-229 whereas the Supreme Court has proceeded
relying upon the oral testimony [@ Para 97 (p.525) of Compilation
of Judgments and Orders Pertaining to Petitioner] D
• Tomaso Bruno & Anr. v. State of UP, (2015) 7 SCC 178
(Paras 20-27)
(vi) Certification under S.65B IEA is a pre-requisite to admissibility
of an electronic record such as CDRs. There is no compliance
with this mandatory requirement. As such, CDRs are inadmissible E
and necessarily must be excluded from consideration.”
17. On the issue of admissibility of call records without there being
appropriate certificate under Section 65-B(4) of the Evidence Act a
bench of two Judges of this Court in State (NCT of Delhi) vs. Navjot
Sandhu alias Afsan Guru11, had observed:- F
“148. It is contended by Mr Shanti Bhushan, appearing for the
accused Shaukat that the call records relating to the cellular Phone
No. 9811573506 said to have been used by Shaukat have not
been proved as per the requirements of law and their genuineness
is in doubt. The call records relating to the other mobile numbers G
related to Gilani and Afzal are also subjected to the same criticism.
It is the contention of the learned counsel that in the absence of a
certificate issued under sub-section (4) of Section 65-B of the
Evidence Act with the particulars enumerated in clauses (a) to
11
(2005) 11 SCC 600 H
812 SUPREME COURT REPORTS [2022] 7 S.C.R.

A (c), the information contained in the electronic record cannot be
adduced in evidence and in any case in the absence of examination
of a competent witness acquainted with the functioning of the
computers during the relevant time and the manner in which the
printouts were taken, even secondary evidence under Section 63
is not admissible.
B
149. Two witnesses were examined to prove the printouts of the
computerised record furnished by the cellular service providers,
namely, AirTel (Bharti Cellular Limited) and ESSAR Cellphone.
The call details of Mobile No. 9811573506 (which was seized
from Shaukat’s house) are contained in Exhibits 36/1 to 36/2. The
C covering letters signed by the Nodal Officer of Sterling Cellular
Limited are Exts. P-36/6 and P-36/7 bearing the dates 13th and
18th December respectively. The call details of Mobile No.
9811489429 attributed to Afzal are contained in Ext. P-36/3 and
the covering letter addressed to the Inspector (special cell) —
D PW 66 signed by the Nodal Officer is Ext. 36/5. The call details
of 9810081228 belonging to the subscriber S.A.R. Gilani are
contained in Ext. 35/8. The above two phones were obtained on
cash-card basis. The covering letter pertaining thereto and certain
other mobile numbers were signed by the Security Manager of
Bharti Cellular Limited. The call details relating to another
E Cellphone Number 9810693456 pertaining to Mohammed is Ext.
35/5. These documents i.e. Ext. 35 series were filed by PW 35
who is the person that signed the covering letter dated 17th
December bearing Ext. 35/1. PW 35 deposed that “all the call
details are computerised sheets obtained from the computer”. He
F clarified that:
“the switch which is maintained in the computer in respect of
each telephone receives the signal of the telephone number,
called or received and serves them to the server and it is the
server which keeps the record of the calls made or received.
G In case where the call is made and the receiver does not pick
up the phone, the server which makes a loop of the route would
not register it.”
As far as PW 36 is concerned, he identified the signatures of the
General Manager of his Company who signed Ext. P-36 series.
H He testified to the fact that the call details of the particular telephone
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 813
[UDAY UMESH LALIT, CJI]

numbers were contained in the relevant exhibits produced by him. A
It is significant to note that no suggestion was put to these two
witnesses touching the authenticity of the call records or the
possible tampering with the entries, although the arguments have
proceeded on the lines that there could have been fabrication. In
support of such argument, the duplication of entries in Exts. 36/2
B
and 36/3 and that there was some discrepancy relating to the cell
ID and IMEI number of the handset at certain places was pointed
out. The factum of presence of duplicate entries was elicited by
the counsel appearing for Afsan Guru from PW 36 when PW 36
was in the witness box. The evidence of DW 10 a technical expert,
was only to the effect that it was possible to clone a SIM by C
means of a SIM programmer which to his knowledge, was not
available in Delhi or elsewhere. His evidence was only of a general
nature envisaging a theoretical possibility and not with reference
to specific instances.
150. According to Section 63, secondary evidence means and D
includes, among other things, “copies made from the original by
mechanical processes which in themselves insure the accuracy
of the copy, and copies compared with such copies”. Section 65
enables secondary evidence of the contents of a document to be
adduced if the original is of such a nature as not to be easily
movable. It is not in dispute that the information contained in the E
call records is stored in huge servers which cannot be easily moved
and produced in the court. That is what the High Court has also
observed at para 276. Hence, printouts taken from the computers/
servers by mechanical process and certified by a responsible official
of the service-providing company can be led in evidence through F
a witness who can identify the signatures of the certifying officer
or otherwise speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements of Section
65-B, which is a provision dealing with admissibility of electronic
records, there is no bar to adducing secondary evidence under
the other provisions of the Evidence Act, namely, Sections 63 and G
65. It may be that the certificate containing the details in sub-
section (4) of Section 65-B is not filed in the instant case, but that
does not mean that secondary evidence cannot be given even if
the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, Sections 63 and 65. H
814 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 151. The learned Senior Counsel Mr Shanti Bhushan then
contended that the witnesses examined were not technical persons
acquainted with the functioning of the computers, nor do they
have personal knowledge of the details stored in the servers of
the computers. We do not find substance in this argument. Both
the witnesses were responsible officials of the companies
B
concerned who deposed to the fact that they were the printouts
obtained from the computer records. In fact the evidence of PW
35 shows that he is fairly familiar with the computer system and
its output. If there was some questioning vis-à-vis specific details
or specific suggestion of fabrication of printouts, it would have
C been obligatory on the part of the prosecution to call a technical
expert directly in the know of things. The following observations
of the House of Lords in the case of R. v. Shephard 1993 AC
380 are quite apposite : (All ER p. 231b-c)
“The nature of the evidence to discharge the burden of
D showing that there has been no improper use of the computer
and that it was operating properly will inevitably vary from
case to case. The evidence must be tailored to suit the needs
of the case. I suspect that it will very rarely be necessary to
call an expert and that in the vast majority of cases it will be
possible to discharge the burden by calling a witness who is
E familiar with the operation of the computer in the sense of
knowing what the computer is required to do and who can say
that it is doing it properly.”
Such a view was expressed even in the face of a more stringent
provision in Section 69 of the Police and Criminal Act, 1984 in the
F UK casting a positive obligation on the part of the prosecution to
lead evidence in respect of proof of the computer record. We
agree with the submission of Mr Gopal Subramanium that the
burden of prosecution under the Indian law cannot be said to be
higher than what was laid down in R. v. Shephard 1993 AC 380.
G 152. Although necessary suggestions were not put forward to the
witnesses so as to discredit the correctness/genuineness of the
call records produced, we would prefer to examine the points
made out by the learned counsel for the accused independently.
As already noted, one such contention was about the presence of
H duplicate entries in Exts. 36/2 and 36/3. We feel that an innocuous
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 815
[UDAY UMESH LALIT, CJI]

error in the computer recording is being magnified to discredit the A
entire document containing the details without any warrant. As
explained by the learned counsel for the State, the computer, at
the first instance, instead of recording the IMEI number of the
mobile instrument, had recorded the IMEI and cell ID (location)
of the person calling/called by the subscriber. The computer
B
rectified this obvious error immediately and modified the record
to show the correct details viz. the IMEI and the cell ID of the
subscriber only. The document is self-explanatory of the error. A
perusal of both the call records with reference to the call at 11 :
19 : 14 hours exchanged between 9811489429 (Afzal’s) and
9811573506 (Shaukat’s) shows that the said call was recorded C
twice in the call records. The fact that the same call has been
recorded twice in the call records of the calling and called party
simultaneously demonstrates beyond doubt that the correctness
or genuineness of the call is beyond doubt. Further, on a
comparative perusal of the two call records, the details of the cell
D
ID and the IMEI of the two numbers are also recorded. Thus, as
rightly pointed out by the counsel for the State Mr Gopal
Subramanium, the same call has been recorded two times, first
with the cell ID and IMEI number of the calling number
(9811489429). The same explanation holds good for the call at 11
: 32 : 40 hours. Far from supporting the contention of the defence, E
the above facts, evident from the perusal of the call records, would
clearly show that the system was working satisfactorily and it
promptly checked and rectified the mistake that occurred. As
already noticed, it was not suggested nor could it be suggested
that there was any manipulation or material deficiency in the
F
computer on account of these two errors. Above all, the printouts
pertaining to the call details exhibited by the prosecution are of
such regularity and continuity that it would be legitimate to draw a
presumption that the system was functional and the output was
produced by the computer in regular use, whether this fact was
specifically deposed to by the witness or not. We are therefore of G
the view that the call records are admissible and reliable and rightly
made use of by the prosecution.”
18. A bench of three Judges of this Court in Anvar P.V.9 did not
approve the view taken in Navjot Sandhu11 and observed –
H
816 SUPREME COURT REPORTS [2022] 7 S.C.R.

A “20. Proof of electronic record is a special provision introduced
by the IT Act amending various provisions under the Evidence
Act. The very caption of Section 65-A of the Evidence Act, read
with Sections 59 and 65-B is sufficient to hold that the special
provisions on evidence relating to electronic record shall be
governed by the procedure prescribed under Section 65-B of the
B
Evidence Act. That is a complete code in itself. Being a special
law, the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC
600 a two-Judge Bench of this Court had an occasion to consider
an issue on production of electronic record as evidence. While
C considering the printouts of the computerised records of the calls
pertaining to the cellphones, it was held at para 150 as follows:
(SCC p. 714)
“150. According to Section 63, “secondary evidence” means
and includes, among other things, ‘copies made from the original
D by mechanical processes which in themselves insure the
accuracy of the copy, and copies compared with such copies’.
Section 65 enables secondary evidence of the contents of a
document to be adduced if the original is of such a nature as
not to be easily movable. It is not in dispute that the information
E contained in the call records is stored in huge servers which
cannot be easily moved and produced in the court. That is
what the High Court has also observed [Ed.: Reference is
to State v. Mohd. Afzal, (2003) 71 DRJ 178] at para 276.
Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official of
F the service-providing company can be led in evidence through
a witness who can identify the signatures of the certifying
officer or otherwise speak of the facts based on his personal
knowledge. Irrespective of the compliance with the
requirements of Section 65-B, which is a provision dealing with
G admissibility of electronic records, there is no bar to adducing
secondary evidence under the other provisions of the Evidence
Act, namely, Sections 63 and 65. It may be that the certificate
containing the details in sub-section (4) of Section 65-B is not
filed in the instant case, but that does not mean that secondary
evidence cannot be given even if the law permits such evidence
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 817
[UDAY UMESH LALIT, CJI]

to be given in the circumstances mentioned in the relevant A
provisions, namely, Sections 63 and 65.”
It may be seen that it was a case where a responsible official had
duly certified the document at the time of production itself. The
signatures in the certificate were also identified. That is apparently
in compliance with the procedure prescribed under Section 65-B B
of the Evidence Act. However, it was held that irrespective of the
compliance with the requirements of Section 65-B, which is a
special provision dealing with admissibility of the electronic record,
there is no bar in adducing secondary evidence, under Sections
63 and 65, of an electronic record.
C
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of the
Evidence Act shall yield to the same. Generalia specialibus non
derogant, special law will always prevail over the general law. It
appears, the court omitted to take note of Sections 59 and 65-A D
dealing with the admissibility of electronic record. Sections 63
and 65 have no application in the case of secondary evidence by
way of electronic record; the same is wholly governed by Sections
65-A and 65-B. To that extent, the statement of law on admissibility
of secondary evidence pertaining to electronic record, as stated E
by this Court in State (NCT of Delhi) v. Navjot Sandhu, (2005)
11 SCC 600, does not lay down the correct legal position. It requires
to be overruled and we do so. An electronic record by way of
secondary evidence shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied. Thus, in the case
of CD, VCD, chip, etc., the same shall be accompanied by the F
certificate in terms of Section 65-B obtained at the time of taking
the document, without which, the secondary evidence pertaining
to that electronic record, is inadmissible.”
19. In Tomaso Bruno & Anr. v. State of Uttar Pradesh12, another
bench of three Judges however struck a slightly different chord and G
made following observations:
“24. With the advancement of information technology, scientific
temper in the individual and at the institutional level is to pervade
12
(2015) 7 SCC 178. H
818 SUPREME COURT REPORTS [2022] 7 S.C.R.

A the methods of investigation. With the increasing impact of
technology in everyday life and as a result, the production of
electronic evidence in cases has become relevant to establish the
guilt of the accused or the liability of the defendant. Electronic
documents stricto sensu are admitted as material evidence. With
the amendment to the Evidence Act in 2000, Sections 65-A and
B
65-B were introduced into Chapter V relating to documentary
evidence. Section 65-A provides that contents of electronic records
may be admitted as evidence if the criteria provided in Section
65-B is complied with. The computer generated electronic records
in evidence are admissible at a trial if proved in the manner
C specified by Section 65-B of the Evidence Act. Sub-section (1) of
Section 65-B makes admissible as a document, paper printout of
electronic records stored in optical or magnetic media produced
by a computer, subject to the fulfilment of the conditions specified
in sub-section (2) of Section 65-B. Secondary evidence of contents
of document can also be led under Section 65 of the Evidence
D
Act. PW 13 stated that he saw the full video recording of the
fateful night in the CCTV camera, but he has not recorded the
same in the case diary as nothing substantial to be adduced as
evidence was present in it.”
20. In Sonu alias Amar v. State of Haryana13, a bench of two
E Judges ruled that an objection that CDRs be not taken into consideration
pertained to the mode or method of proof and if not taken at the trial,
cannot be permitted at the appellate stage. It was stated: -
“32. It is nobody’s case that CDRs which are a form of electronic
record are not inherently admissible in evidence. The objection is
F that they were marked before the trial court without a certificate
as required by Section 65-B(4). It is clear from the judgments
referred to supra that an objection relating to the mode or method
of proof has to be raised at the time of marking of the document
as an exhibit and not later. The crucial test, as affirmed by this
G Court, is whether the defect could have been cured at the stage
of marking the document. Applying this test to the present case, if
an objection was taken to the CDRs being marked without a
certificate, the Court could have given the prosecution an
opportunity to rectify the deficiency. It is also clear from the above

H 13
(2017) 8 SCC 570
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 819
[UDAY UMESH LALIT, CJI]

judgments that objections regarding admissibility of documents A
which are per se inadmissible can be taken even at the appellate
stage. Admissibility of a document which is inherently inadmissible
is an issue which can be taken up at the appellate stage because
it is a fundamental issue. The mode or method of proof is
procedural and objections, if not taken at the trial, cannot be
B
permitted at the appellate stage. If the objections to the mode of
proof are permitted to be taken at the appellate stage by a party,
the other side does not have an opportunity of rectifying the
deficiencies. The learned Senior Counsel for the State referred to
statements under Section 161 CrPC, 1973 as an example of
documents falling under the said category of inherently inadmissible C
evidence. CDRs do not fall in the said category of documents.
We are satisfied that an objection that CDRs are unreliable due to
violation of the procedure prescribed in Section 65-B(4) cannot
be permitted to be raised at this stage as the objection relates to
the mode or method of proof.”
D
21. Later, another bench of two Judges of this Court in Shafi
Mohammed v. State of Himachal Pradesh14 observed as under:
“20. An apprehension was expressed on the question of
applicability of conditions under Section 65-B(4) of the Evidence
Act to the effect that if a statement was given in evidence, a E
certificate was required in terms of the said provision from a person
occupying a responsible position in relation to operation of the
relevant device or the management of relevant activities. It was
submitted that if the electronic evidence was relevant and produced
by a person who was not in custody of the device from which the
electronic document was generated, requirement of such certificate F
could not be mandatory. It was submitted that Section 65-B of the
Evidence Act was a procedural provision to prove relevant
admissible evidence and was intended to supplement the law on
the point by declaring that any information in an electronic record,
covered by the said provision, was to be deemed to be a document G
and admissible in any proceedings without further proof of the
original. This provision could not be read in derogation of the
existing law on admissibility of electronic evidence.

14
(2018) 2 SCC 801. H
820 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 21. We have been taken through certain decisions which may be
referred to. In Ram Singh v. Ram Singh, 1985 Supp SCC 611, a
three-Judge Bench considered the said issue. English judgments
in R. v. Maqsud Ali, (1966) 1 QB 688) and R. v. Robson, (1972)
1 WLR 651 and American Law as noted in American
Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to
B
the effect that it will be wrong to deny to the law of evidence
advantages to be gained by new techniques and new devices,
provided the accuracy of the recording can be proved. Such
evidence should always be regarded with some caution and
assessed in the light of all the circumstances of each case.
C Electronic evidence was held to be admissible subject to safeguards
adopted by the Court about the authenticity of the same. In the
case of tape-recording, it was observed that voice of the speaker
must be duly identified, accuracy of the statement was required
to be proved by the maker of the record, possibility of tampering
was required to be ruled out. Reliability of the piece of evidence
D
is certainly a matter to be determined in the facts and
circumstances of a fact situation. However, threshold admissibility
of an electronic evidence cannot be ruled out on any technicality
if the same was relevant.”
22. The last decision on the point is a three Judge bench decision
E of this Court in Arjun Panditrao Khotkar10 which was rendered on a
reference to a larger bench because of the observations in Shafi
Mohammad14. The bench concluded in Arjun Panditrao10 as under: -
“73. The reference is thus answered by stating that:

F 73.1. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, as clarified
by us hereinabove, is the law declared by this Court on Section
65-B of the Evidence Act. The judgment in Tomaso Bruno v. State
of U.P., (2015) 7 SCC 178, being per incuriam, does not lay down
the law correctly. Also, the judgment in Shafhi Mohammad v.
State of H.P., (2018) 2 SCC 801 and the judgment dated 3-4-
G 2018 reported as Shafhi Mohd. v. State of H.P., (2018) 5 SCC
311s, do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required
certificate under Section 65-B(4) is unnecessary if the original
document itself is produced. This can be done by the owner of a
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 821
[UDAY UMESH LALIT, CJI]

laptop computer, computer tablet or even a mobile phone, by A
stepping into the witness box and proving that the device concerned,
on which the original information is first stored, is owned and/or
operated by him. In cases where the “computer” happens to be a
part of a “computer system” or “computer network” and it
becomes impossible to physically bring such system or network
B
to the court, then the only means of providing information contained
in such electronic record can be in accordance with Section 65-
B(1), together with the requisite certificate under Section 65-B(4).
The last sentence in para 24 in Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 which reads as “… if an electronic record as such
is used as primary evidence under Section 62 of the Evidence C
Act …” is thus clarified; it is to be read without the words “under
Section 62 of the Evidence Act,…”. With this clarification, the
law stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter D
be followed by courts that deal with electronic evidence, to ensure
their preservation, and production of certificate at the appropriate
stage. These directions shall apply in all proceedings, till rules and
directions under Section 67-C of the Information Technology Act
and data retention conditions are formulated for compliance by
telecom and internet service providers. E

73.4. Appropriate rules and directions should be framed in exercise
of the Information Technology Act, by exercising powers such as
in Section 67-C, and also framing suitable rules for the retention
of data involved in trial of offences, their segregation, rules of
chain of custody, stamping and record maintenance, for the entire F
duration of trials and appeals, and also in regard to preservation
of the metadata to avoid corruption. Likewise, appropriate rules
for preservation, retrieval and production of electronic record,
should be framed as indicated earlier, after considering the report
of the Committee constituted by the Chief Justices’ Conference G
in April 2016.”
It must now be taken to have been settled that the decision of this
Court in Anvar P.V.9 as clarified in Arjun Panditrao10 is the law declared
on Section 65B of the Evidence Act.
H
822 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 23. Navjot Sandhu11 was decided on 4.8.2005 i.e., before the
judgment was rendered by the Trial Court in the instant matter. The
subsequent judgments of the High Court and this Court were passed on
13.9.2007 and 10.8.2011 respectively affirming the award of death
sentence. These two judgments were delivered prior to the decision of
this Court in Anvar P.V.9 which was given on 18.9.2014. The judgments
B
by the trial Court, High Court and this Court were thus well before the
decision in Anvar P.V.9 and were essentially in the backdrop of law laid
down in Navjot Sandhu11. If we go by the principle accepted in
paragraph 32 of the decision in Sonu alias Amar13, the matter may
stand on a completely different footing. It is for this reason that reliance
C has been placed on certain decisions of this Court to submit that the
matter need not be reopened on issues which were dealt with in
accordance with the law then prevailing. However, since the instant
matter pertains to award of death sentence, this review petition must be
considered in light of the decisions made by this Court in Anvar P.V.9
and Arjun Panditrao10.
D
24. Consequently, we must eschew, for the present purposes, the
electronic evidence in the form of CDRs which was without any
appropriate certificate under Section 65-B(4) of the Evidence Act.
25. If we consider the circumstances which were culled out by
E this Court in Paragraph 182 of the judgment under review, circumstances
mentioned at Serial Nos. ‘h’ and ‘j’ become extremely weak as the
tracing of calls received by PWs 39 and 41 to Mobile Phone
No.9811278510 was possible only through CDRs. These circumstances
must not, therefore, be taken into account.

F 26. However, the other circumstances stated in said paragraph
182 as well as in subsequent paragraphs remain completely unaffected.
As was stated by this Court in paragraphs 151, 153, 159, 169 and finally
summed up in paragraphs 183 and 184, the findings on the issue of the
receipt and disbursal of money and the fact that the police could reach
the spot referred to in Paragraph 184, at the instance of the review
G petitioner are very relevant and crucial circumstances. One of the
important circumstances is also the feature referred to in circumstance
‘o’ in Paragraph 182 as stated above. In conclusion, it must therefore be
observed that even after eschewing circumstances ‘h’ and ‘j’ which
were directly attributable to the CDRs relied upon by the prosecution,
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 823
[UDAY UMESH LALIT, CJI]

the other circumstances on record do clearly spell out and prove beyond A
any doubt the involvement of the review petitioner in the crime in question.
27. We now turn to grounds (b), (c) and (d) raised on behalf of
the review petitioner as stated in para 12 supra. Grounds ‘b’ and ‘c’ are
purely factual in nature. The disclosure statement, as a matter of fact,
was held to have been proved by the Courts below and this Court. In our B
review jurisdiction, it will not be possible to enter into questions regarding
admissibility of such disclosure statement on issues of fact. The disclosure
statement led the police to the hide out at G-73, Batla House, New Delhi
and when the police team arrived with the review petitioner, there was
firing upon the police team as stated in circumstance ‘g’ in paragraph
182. After the person concerned named Abu Shamal alias Faisal died in C
the encounter, certain fire arms and ammunition were recovered. The
submission that such recovery of ammunition or the encounter of Abu
Shamal could not be associated with the disclosure statement of the
review petitioner is not quite correct. We therefore reject both the grounds
taken in ‘b’ and ‘c’ as referred to in Para 12 supra. D
28. We now turn to the last ground regarding possibility of
retribution and rehabilitation of the review petitioner. On this issue, the
response of the State in its Written Submissions is as follows: -
“3. The petitioner, admittedly a Pakistani national, has been
convicted inter-alia under Section 121,302,120B,121A,181 and E
353 of the Indian Penal Code, Section 25 of the Arms Act, Section
4 of the Explosive Substances Act, Section 14 of the Foreigners
Act, for waging war against the Government of India and
committing murder in pursuance thereof. This Hon’ble Court has
taken the view that the cases of such nature, involving acts of F
terror which challenge the unity, integrity and sovereignty of India
can only be adequately compensated by awarding the death
sentence. Reference in this regard is drawn to the judgment of
this Hon’ble Court in State of NCT of Delhi v. Navjot Sandhu
(2005) 11 SCC 600 (The Parliament Attack Case), where it
was held: G
252. In the instant case, there can be no doubt that the
most appropriate punishment is death sentence. That is
what has been awarded by the trial court and the High
Court. The present case, which has no parallel in the history
H
824 SUPREME COURT REPORTS [2022] 7 S.C.R.

A of the Indian Republic, presents us in crystal-clear terms,
a spectacle of the rarest of rare cases. The very idea of
attacking and overpowering a sovereign democratic
institution by using powerful arms and explosives and
imperilling the safety of a multitude of peoples’
representatives, constitutional functionaries and officials
B
of the Government of India and engaging in a combat with
the security forces is a terrorist act of the gravest severity.
It is a classic example of rarest of rare cases.
253. The gravity of the crime conceived by the conspirators
with the potential of causing enormous casualties and
C dislocating the functioning of the Government as well as
disrupting the normal life of the people of India is
something which cannot be described in words. The
incident, which resulted in heavy casualties, had shaken
the entire nation, and the collective conscience of the
D society will only be satisfied if capital punishment is
awarded to the offender. The challenge to the unity,
integrity and sovereignty of India by these acts of terrorists
and conspirators, can only be compensated by giving
maximum punishment to the person who is proved to be the
conspirator in this treacherous act. The appellant, who is
E a surrendered militant and who was bent upon repeating
the acts of treason against the nation, is a menace to the
society and his life should become extinct. Accordingly,
we uphold the death sentence.
(emphasis supplied)
F
4. Similarly in Yakub Abdul Razak Memon v. State of
Maharashtra, (2013) 13 SCC 1, this Hon’ble Court while dealing
with the award of the death sentence to persons convicted inter-
alia under various IPC offences including Waging of War against
the Government of India and the Prevention of Terrorism Act,
G discussed the wide ambit of the term “terrorism” and held that
the offence of terrorism itself was an aggravating circumstance:
“Terrorism”
809. The term “terrorism” is a concept that is commonly
and widely used in everyday parlance and is derived from
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 825
[UDAY UMESH LALIT, CJI]

the Latin word “terror” which means the state of intense A
fear and submission to it. There is no particular form of
terror, hence, anything intended to create terror in the
minds of general public in order to endanger the lives of
the members and damage to public property may be termed
as a terrorist act and a manifestation of terrorism. Black’s
B
Law Dictionary defines terrorism as:
“Terrorism.— The use or threat of violence to intimidate
or cause panic, esp. as a means of affecting political
conduct.” (8th Edn., p. 1512.)
810. Terrorism is a global phenomenon in today’s world C
and India is one of the worst victims of terrorist acts.
Terrorism has a long history of being used to achieve
political, religious and ideological objectives. Acts of
terrorism can range from threats to actual assassinations,
kidnappings, airline hijackings bomb scares, car bombs,
building explosions mailing of dangerous materials, D
computer based attacks and the use of chemical,
biological, and nuclear weapons-weapons of mass
destruction (WMD).
…
E
883.4. Crime of terrorism is in itself an aggravating
circumstance as it carries a “special stigmatisation due to
the deliberate form of inhuman treatment it represents and
the severity of the pain and suffering inflicted”
(emphasis supplied) F
5. In Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012)
9 SCC 1, this Hon’ble Court while convicting the Appellant therein
for the terrorist attack of 26/11 in Mumbai, stated that facts of the
case, the cross-border conspiracy, and the intention to strike fear
into the heart of the victims, that the death sentence was warranted.
G
While the court recognised that death should be the exception,
this Hon’ble Court noted that as long as the death penalty remained
on the statute books for crimes such as waging of war, there
would be certain cases where its imposition would be justified. In
this regard, attention is respectfully drawn to the following
paragraphs: H
826 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 573. In short, this is a case of terrorist attack from across
the border. It has a magnitude of unprecedented enormity
on all scales. The conspiracy behind the attack was as
deep and large as it was vicious. The preparation and
training for the execution was as thorough as the execution
was ruthless. In terms of loss of life and property, and more
B
importantly in its traumatising effect, this case stands alone,
or it is at least the very rarest of rare cases to come before
this Court since the birth of the Republic. Therefore, it
should also attract the rarest of rare punishment.
…
C
577. Putting the matter once again quite simply, in this
country death as a penalty has been held to be
constitutionally valid, though it is indeed to be awarded in
the “rarest of rare cases when the alternative option (of
life sentence) is unquestionably foreclosed”. Now, as long
D as the death penalty remains on the statute book as
punishment for certain offences, including “waging war”
and murder, it logically follows that there must be some
cases, howsoever rare or one in a million, that would call
for inflicting that penalty. That being the position we fail
E to see what case would attract the death penalty, if not the
case of the appellant. To hold back the death penalty in
this case would amount to obdurately declaring that this
Court rejects death as lawful penalty even though it is on
the statute book and held valid by the Constitutional
Benches of this Court.
F
34. No ground for review of the Death Sentence is made out as
the three tests stand fully satisfied. All three Courts have recorded
elaborate reasons for why the present case was one which
warranted the death sentence, and have considered the crime,
the criminal and whether the case could be said to be the rarest of
G the rare.
1. This Hon’ble Court has recorded elaborate findings in the
judgment presently under review on sentencing as to why the
present case satisfies all three tests including the “rarest of the
rare” test. Firstly, this Hon’ble Court found that the nature of
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 827
[UDAY UMESH LALIT, CJI]

the crime, being an attack on the Red Fort, was nothing short A
of an attack on Mother India itself, secondly, that so far as the
nature of the criminal was concerned, no mitigating
circumstances of any kind had been brought on record and
thirdly, that the nature of the crime, the fact that it was a planned
pre-meditated attack on a symbol of the seat of power of the
B
Government of India warranted nothing short of the highest
punishment. The Court held:
“213. This was, in our opinion, a unique case where
Red Fort, a place of paramount importance for every
Indian heart was attacked where three Indian soldiers
lost their lives. This is a place with glorious history, a C
place of great honour for every Indian, a place with
which every Indian is attached emotionally, and a place
from where our first Prime Minister delivered his speech
on 15-8-1947, the day when India broke the shackles
of foreign rule and became a free country. It has since D
then been a tradition that every Hon’ble Prime Minister
of this country delivers an address to the nation on
every 15th August to commemorate that great event. This
fort was visualised and constructed by the Mughal
Emperor Shahjahan who is known as “Shahjahan the
builder”. It took nine years for its completion. It was E
here that Shahjahan ascended the throne on 18-4-1648
amidst recitation of sacred aayates of Holy Quran and
mantras from Hindu scriptures. The great historical
monument thereafter saw the rule of number of Mughal
Emperors including Aurangzeb. It also saw its most F
unfortunate capture by Nadir Shah. It was in 1837 that
the last Mughal Emperor Bahadur Shah Zafar II took
over the throne.
214. It must be remembered that it was during the empire
of Bahadur Shah Zafar II that the First War of G
Independence was fought. Red Fort became the ultimate
goal during that War of Independence which broke out
in the month of May 1857. The Fort breathed free air
for a brief period. But ultimately in the month of
September 1857, it was captured by the British. Red
H
828 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Fort is not just one of the several magnificent
monuments that were built by the Mughal emperors
during their reign for nearly three centuries. It is not
just another place which people from within and outside
the country visit to have a glimpse of the massive walls
on which the Fort stands or the exquisite workmanship
B
it displays. It is not simply a tourist destination in the
capital that draws thousands every year to peep and
revel into the glory of the times bygone. Its importance
lies in the fact that it has for centuries symbolised the
seat of power in this country. It has symbolised the
C supremacy of the Mughal and the British empires just
as it symbolises after Independence the sovereignty of
the world’s largest democratic republic. It is a national
symbol that evokes the feelings of nationalism amongst
the countrymen and reminds them of the sacrifices that
the freedom fighters made for the liberation of this
D
country from foreign rule.
215. No wonder even after the fall of the Fort to the
British forces in the First War of Independence in 1857
and the shifting of the seat of power from Red Fort to
Calcutta and later to New Delhi, Pt. Jawahar Lal Nehru
E after his historic “Tryst with Destiny” speech unfurled
the tricolour from the ramparts of Red Fort on 15-8-
1947. That singular event symbolised the end of the
British rule in this country and the birth of an
independent India. An event that is relived and re-acted
F every succeeding year since 1917, when every
incumbent Prime Minister addresses the nation from atop
this great and historic Fort reminding the countrymen
of the importance of freedom, the need for its
preservation and the values of constitutional democracy
that guarantees the freedoms so very fundamental to
G the preservation of the unity and integrity of this country.
216. An attack on a symbol that is so deeply entrenched
in the national psyche was, therefore, nothing but an
attack on the very essence of the hard-earned freedom
and liberty so very dear to the people of this country.
H
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 829
[UDAY UMESH LALIT, CJI]

An attack on a symbol like Red Fort was an assault on A
the nation’s will and resolve to preserve its integrity and
sovereignty at all costs. It was a challenge not only to
the army battalions stationed inside the monument but
the entire nation. It was a challenge to the very fabric
of a secular constitutional democracy this country has
B
adopted and everything that is good and dear to our
countrymen. It was a blatant, brazenfaced and
audacious act aimed to overawe the Government of
India. It was meant to show that the enemy could with
impunity reach and destroy the very vitals of an
institution so dear to our fellow countrymen for what it C
signified for them. It is not for no reason that whosoever
comes to Delhi has a yearning to visit Red Fort. It is for
these reasons that this place has become a place of
honour for Indians.
217. No one can ever forget the glorious moments when D
the Indians irrespective of their religions fought their
First War of Independence and shed their blood. It was,
therefore, but natural for the foreigner enemies to plan
an attack on the army specially kept to guard this great
monument. This was not only an attack on Red Fort or
the army stationed therein, this was an arrogant assault E
on the self-respect of this great nation. It was a well
thought out insult offered to question the sovereignty
of this great nation by foreign nationals. Therefore, this
case becomes a rarest of the rare case. This was nothing
but an undeclared war by some foreign mercenaries like F
the present appellant and his other partner in conspiracy
Abu Shamal and some others who either got killed or
escaped. In conspiring to bring about such kind of
attack and then carrying out their nefarious activities
in systematic manner to make an attack possible was
nothing but an attempt to question the sovereignty of G
India. Therefore, even without any reference to any
other case law, we hold this case to be the rarest of the
rare case.
…
H
830 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 223. …..During the whole debate the learned defence
counsel did not attempt to bring any mitigating
circumstance. In fact, this is a unique case where there
is one most aggravating circumstance that it was a direct
attack on the unity, integrity and sovereignty of India
by foreigners. Thus, it was an attack on Mother India.
B
This is apart from the fact that as many as three persons
had lost their lives. The conspirators had no place in
India. The appellant was a foreign national and had
entered India without any authorisation or even
justification. This is apart from the fact that the
C appellant built up a conspiracy by practising deceit and
committing various other offences in furtherance of the
conspiracy to wage war against India as also to commit
murders by launching an unprovoked attack on the
soldiers of the Indian Army. We, therefore, have no
doubts that death sentence was the only sentence in the
D
peculiar circumstance of this case.”
29. The decisions referred to in the Written Submissions show
that when there is challenge to the unity, integrity and sovereignty of
India by acts of terrorism, such acts are taken as the most aggravating
circumstances. It is well accepted that the cumulative effect of the
E aggravating factors and the mitigating circumstances must be taken into
account before the death sentence is awarded. In Vasanta Sampat
Dupare vs. State of Maharashtra15, while dealing with a case, where
death sentence was awarded in a crime relating to offences punishable
under Sections 302, 363, 367, 376(2)(f) and 201 of the IPC, this Court
F had observed that the aggravating circumstances had clearly outweighed
the mitigating circumstances. It was stated: -
“20. It is thus well settled, “the court would consider the cumulative
effect of both the aspects (namely, aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for
G the Court to decide the most significant aspect of sentencing policy
with reference to one of the classes completely ignoring other
classes under other heads and it is the primary duty of the Court
to balance the two”. Further, “it is always preferred not to fetter
the judicial discretion by attempting to make excessive enumeration,
15
H (2017) 6 SCC 631
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI) 831
[UDAY UMESH LALIT, CJI]

in one way or another; and that both aspects, namely, aggravating A
and mitigating circumstances have to be given their respective
weightage and that the Court has to strike the balance between
the two and see towards which side the scale/balance of justice
tilts”. With these principles in mind, we now consider the present
review petition.
B
21. The material placed on record shows that after the judgment
Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC
253 under review, the petitioner has completed Bachelors
Preparatory Programme offered by Indira Gandhi National Open
University enabling him to prepare for Bachelor level study and
that he has also completed the Gandhi Vichar Pariksha and had C
participated in drawing competition organised sometime in January
2016. It is asserted that the jail record of the petitioner is without
any blemish. The matter is not contested as regards Conditions
(1), (2), (5), (6) and (7) as stated in para 206 of the decision
in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, but what D
is now being projected is that there is a possibility of the accused
being reformed and rehabilitated. Though these attempts on part
of the petitioner are after the judgment Vasanta Sampat
Dupare v. State of Maharashtra, (2015) 1 SCC 253 under review,
we have considered the material in that behalf to see if those
circumstances warrant a different view. We have given anxious E
consideration to the material on record but find that the aggravating
circumstances, namely, the extreme depravity and the barbaric
manner in which the crime was committed and the fact that the
victim was a helpless girl of four years clearly outweigh the
mitigating circumstances now brought on record. Having taken F
an overall view of the matter, in our considered view, no case is
made out to take a different view in the matter. We, therefore,
affirm the view taken in the judgment Vasanta Sampat
Dupare v. State of Maharashtra, (2015) 1 SCC 253 under review
and dismiss the present review petitions.”
G
30. Coming back to the instant case, there is nothing on record
which can be taken to be a mitigating circumstance in favour of the
review petitioner. The suggestion that there is a possibility of retribution
and rehabilitation, is not made out from and supported by any material
on record. On the other hand, the aggravating circumstances evident
H
832 SUPREME COURT REPORTS [2022] 7 S.C.R.

A from the record and specially the fact that there was a direct attack on
the unity, integrity and sovereignty of India, completely outweigh the
factors which may even remotely be brought into consideration as
mitigating circumstances on record. The submission so advanced under
ground (d) does not merit any acceptance and is, therefore, rejected.
B 31. Consequently, we do not find any merit in the instant review
petitions, which are accordingly dismissed.

Bibhuti Bhushan Bose Review petitions dismissed.
(Assisted by : Shubhanshu Das, LCRA)
C

D

E

F

G

H