Supreme Court of India
MOHD. ARIF @ ASHFAQversusSTATE OF NCT OF DELHI
- Citation
- 2011 INSC 571
- Decided
- 10 August 2011
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
The Supreme Court upheld the conviction and death sentence of Mohd. Arif @ Ashfaq for conspiracy to wage war against India and murder, finding the evidence sufficient and the case a "rarest of rare".
Summary
The appellant, a Pakistani national and member of Lashkar‑e‑Toiba, was convicted for planning and executing a terrorist attack on the Red Fort on 22 December 2000, which killed three Indian Army soldiers. The prosecution proved the conspiracy and the murders through extensive circumstantial evidence, forensic links between weapons and the crime scene, mobile‑phone call records, and the appellant’s own disclosures made while in police custody. The Supreme Court held that the trial and appellate courts had properly appreciated the evidence, that the discovery statements under Section 27 of the Evidence Act were admissible despite procedural irregularities, and that the case qualified as a "rarest of rare" warranting the death penalty. The Court dismissed the appeal, confirming the conviction and sentence.
Issues considered
- The adequacy of circumstantial evidence to prove conspiracy under Sections 121, 121‑A and 120‑B IPC.
- Whether the appellant’s discovery statements, recorded without a formal arrest, are admissible under Section 27 of the Evidence Act.
- The impact of the acquittal of other co‑accused on the appellant’s conviction for conspiracy.
- The propriety of imposing the death penalty as a "rarest of rare" case.
- The fairness of the investigation and trial despite the appellant’s foreign nationality.
Legislation cited
- Arms Act, 1959s. 25
- Explosive Substances Act, 1908s. 4
- Foreigners Act, 1946s. 14
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 120-8, s. 120-B, s. 121, s. 121-A, s. 186, s. 302, s. 353, s. 420, s. 468, s. 471, s. 474
Subjects
conspiracywaging warterrorismRed Fort attackcircumstantial evidencedeath penaltyrarest of rareSection 27 Evidence Actforeign nationalhawalaforged documents
Judgment
[2011] 10 S.C.R. 56
A MOHD. ARIF @ ASHFAQ
v.
STATE OF NCT OF DELHI
(Criminal Appeal Nos. 98-99 of 2009)
AUGUST 10, 2011
B
[V.S. SIRPURKAR AND T. S. THAKUR, JJ.)
CONSTITUTION OF IND/A, 1950:
C Article 136 - Scope of - Held: Supreme Court ordinarily
does not go into the appreciation of evidence, particularly,
where there are concurrent findings of facts - However, the
Court examined the oral and documentary evidence not only
relating to the appellant, but also to the other accused persons
- As a result, the Court is of the view that the courts below
D have fully considered the oral and documentary evidence for
coming to the conclusions that ther did.
PENAL CODE, 1860
E ss. 121, 121-A, 120-8 rlw s. 302, 18613531120-8, 4681471
and 4201120-8 - Conspiracy to wage war against and to
overawe Government of India - Red Fort attack - Three
soldiers killed by intruders - Circumstantial evidence -
Appellan.t-accused, a Pakistani national and member of an
F international terrorist organization, apprehended on the basis
of a cell phone number - On his disclosure statements,
sophisticated weapons used in the attack, hand grenades,
diary etc. recovered leading to police encounter of his
associate and seizure of documents from the office of a
'hawa/a' dealer (absconding) - Some accused absconding
G and three killed in encounters - Conviction of appellant-
accused and sentence of death awarded by trial court,
confirmed by High Court - Other accused acquitted by High
Court - HELD: The offence of conspiring to wage a war is
proved to the hilt against the appellant, for which he has been
H 56
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 57
DELHI
· rightly held guilty of the offence punishable u/s. 121 and 121- A
A, /PC - The appellant is also rightly held guilty of the offence
punishable u/s. 120-B rlw s. 302, /PC - 7he High Court rightly
came to the conclusion that the appellant was responsible for
the incident. of shooting inside the Red Fort on the night of
22.12.2000, which resulted in the death of three soldiers of B
Army - The Court agrees with the verdict of the trial court as
well as the High Court-Arms Act, 1959 - s. 25 - Explosive
Substances Act, 1908 - s. 4 - Foreigners Act, 1946 - s. 4 -
evidence - Circumstantial evidence-Sentence/sentencing.
ss. 121 and 121-A - 'Conspiracy to wage· war against C
Government of India' - Explained - Held: Once the
prosecution proves that there was a meeting of minds between
two persons to commit a crime, there would be an emergence
of conspiracy ,.... The fact that barely within minutes of the
attack, the BBC correspondents in Srinagar and Delhi were D
informed, proves that there was a definite plan and a
conspiracy - It was undoubtedly an extremely well-planned
attempt to overawe and to wage war against the Government
of India - Some of the associates of the appellant were killed
and others are absconding - Thus, the case of the E
. prosecution that there was a conspiracy to attack the Red Fort
and kill innocent persons, was not affected even if the other
accused persons who were alleged to have facilitated and
helped the appellant, were acquitted.
F
Sentence/Sentencing:
Rarest of rare case - Attack on Indian Army stationed in
Red Fort· - Three soldiers killed by intruders - HELD: High
court concurred with the finding of the trial court that this was
a rarest of the rare case - This was a unique case where Red G
Fort, a place of paramount importance for every Indian heart
was attacked where three Indian soldiers lost their lives - It
was a blatant, braze,nfaced and audacious act aimed to over
awe the Government of India - Therefore, this case becomes
a rarest of rare case - This was nothing but an undeclared H
58 SUPREME COURT REPORTS [2011] 10 S.C.R.
A war by some foreign mercenaries like the appellant and his
other partners, in conspiracy, who either got killed or escaped
- The Court is in complete agreement with the findings
regarding the incriminating circumstances as recorded.by the
High Court - The case satisfies both the tests, namely,
s shocking the conscience of the community and crime of
enormous proportion, as multiple murders were also
committed - The sentence of death awarded by courts below
is upheld - Penal Code, 1860 - s.121, 121-A, 120-B/302.
EVIDENCE:
c
Circumstantial evidence - Principles explained - Red
Fort attack - HELD: Cartridge cases found inside the Red Fort
and AK 56 rifles found outside, established that the attack was
made by intruders with sophisticated weapons -Accused
apprehended on the basis of a cell phone number - He being
0
a Pakistani national, had got a ration card, a driving licence,
opened bank accounts on fake addresses and identities,
opened a computer centre, married an Indian citizen just 15
days before the attack - Before and after the attack he
received calls from Pakistan and made calls to BBC
E correspondents in Delhi and Srinagar - A number of
incriminating articles including a pistol recovered from his .
possession and hand grenades recovered at his instance -
On his disclosure statement Police reached his associate
who was then killed in an encounter - It is obvious that the
F appellant was a very important wheel in the whole machinery
which was working against the sovereignty of this country, and
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 - Prosecution was
G successful in establishing the circumstances against the
appellant, individually, as well as, cumulatively - Penal Code,
1860 - ss. 121, 121-A, 120-B rlw s. 302 /PC.
INVEST/GA TION:
H Disclosure statement of accused and recoveries of
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 59
DELHI
incriminating articles - 'Arresting' of accused and recording A
of his statement - Held: The accused being in custody of the
investigating agency, he need not have been formally arrested
- It is enough if he was in custody of the investigating agency,
meaning thereby, his movements were under the control of
the investigating agency - As regards the failure to record the B
information, it must be held that it is not always necessary -
The essence of the proof of a discovery uls. 27, Evidence Act
is only that it should be credibly proved that the discovery
made was a relevant and material discovery which proceeded
in pursuance of the information supplied by the accused in c
the custody - Therefore, there is nothing wrong with the
discovery.even if it is assumed that the information was not
"recorded" and it is held that immediately after the accused
had been apprehended, he gave the information which was
known to him alone and in pursuance of which a very material D
discovery was made - However, in the instant case, there is
evidence that the accused was "arrested" and his disclosure
statement was recorded - Evidence Act, 1872 - s.27.
Role of investigating agency -Held: The investigation in
the instant case was both scientific and fair investigation - E
· This was one of the most difficult cases to be investigated as
: there could have been no clue available to the investigating
agency - The small thread which became available to the
investigating agency was the chit found alongwith some Indian
currency at the back of the Red Fort in a polythene packet - F
Compliments must be paid to the Investigating Officer as also
to all others associated with the investigation for being
objective and methodical in their approach - It has to be
borne in mind that not a single incide,nce of ill-treatment to
the appellant was reported or proved - Again, the timely G
recording of the D.D. Entries, scientific investigation using the
computer, the depth of investigation and the ability of the
investigating agency to reach the very basis of each aspect,
lend complete credibility to the fairness of the investigation.
H
60 SUPREME COURT REPORTS [2011] 10 S.C.R.
A .;R/MINAL TRIAL:
Role of trial court and High Court - Held: In the instant
case, compliments must be paid to the trial court and the High
Court - The trial held before the trial Judge was the epitome
of fairness, where every opportunity was given to the accused
8 persons and more particularly, to the appellant - Similarly,
the High Court was a/so very fair in giving all the possible
latitude and in giving patient hearing to the accused-appellant.
The appellant, a Pakistani national and a member of
C an international terrorist organization known as Lashkar-
e-Toiba (LeT), alongwith others, was prosecuted for the
attack on the Red Fort. The prosecution case was that
in furtherance of a conspiracy to overawe India by
terrorist activities in different parts of the country and to
o fulfil that object the accused-appellant and his fellow
terrorists had planned an attack on Army stationed inside
the Red Fort. In order to execute the plan, some intruders
entered the Red Fort at about 9.00 p.m. on 22.12.2000 and
started indiscriminate firing and gunned down one sentry
E and two other Army personnel and when the Quick
Reaction Team returned the firing, the intruders escaped
by scaling over the rear side boundary wall of the Red
Fort. During investigation and search, the police found a
polythene packet which had fallen down from the p"acket
F of one of the intruders while scaling down the rear wall
of the Red Fort. The said packet contained some
currency notes and a piece of paper (Ext. PW-183/3) on
which a mobile no. 9811278510 was mentioned. This
mobile number led to the arrest of the appellant and on
his statement the police caught 10 more persons. The trial
G court convicted the appellant u/ss. 120-B, 121, 121-A, 186/
353/120-B, 120-B read with s.302, ss. 468/471/474, 420/
120-B IPC, s. 25 of Arms Act, s. 4 of Explosive
Substances Act and s. 4 of Foreigners Act. He was, inter
a/ia, awarded death sentence u/s 121 IPC for waging was
H against the Government of India. He was also awarded
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 61
DELHI
death sentence u/s 120-B r/w s.302 IPC. The other. A
accused convicted by trial court of various offences were
acquitted by the High Court. However, the High Court
confirmed the conviction and death sentence of the
appellant.
B
Dismissing the appeal, the Court
HELD: 1. This Court ordinarily does not go into the
appreciation of evidence, particulal'ly, where there are
concurrent findings of facts. This Court has very closely
examined the judgments of both the courts below and C
found that there is a thorough discussion as regards the
evidence, oral as well as document;3ry, and it was only
after a deep consideration of such evidence that the trial
court and the appellate court have come to the concurrent
finding against the appellant. In order to see as to D
whether the acquittal of other accused persons can be
linked to the verdict against the appellant, and inspite of
the fact that there has been a concurrent verdict against
the appellant, this Court examined the oral and
documentary evidence not only relating to the appellant, E
but also to the other accused persons. As a result, this
Court is of the view that the courts below have fully
considered the oral and documeintary evidence for
coming to the conclusions that they did. In view of the
concurrent findings, the scope to interfere on the basis F
of some insignificant contradictions cir some microscopic
deficiencies would be extremely limited. (Para 17] (95-D-
H; 96-A]
2.1 From the clear evidence of PW-189, PW-126, PW-
131, PW-134, PW-144 and PW-77, it is evident that some G
intruders had run away after firing inside the Red Fort and
that they had gone towards the Ring Road. The evidence
of all these witnesses is trustworthy. The related
document is Ext. PW-77/A which lends full support to the
version and suggests that there was an incident of H
62 SUPREME COURT REPORTS [2011] 10 S.C.R.
A shooting in the Red Fort. The post mortem was
conducted on the three bodies by PW-187. This witness
has opined that all the deceased had bullet injuries by
sophisticated fire arms and the shots were filed at them
from a distant range. [para 18] [96-H; 97-A-D; 98-D-E]
B
.2.2 A number of incriminating articles were found, the
most important of the same being the empties of .the
bullets fired by the intruders and the arms seized. It is
very significant that the prosecution has been able to
connect the bullets with the arms seized by them. One
C of the two rifles was found near Vijay Ghat from the
bushes while other (Ext. PW 62/1) was recovered at the
instance of appellant on 26.12.2000. The prosecution has
examined three ballistic experts, namely, PW-202, PW-206
and PW-211. Their reports were proved by PW-202 as
D Exhibits 202/A and 202/C. He duly proved and identified
the cartridges which were test fired in the laboratory. It
is clearly established that the cartridges cases found
inside the Red Fort were fired f~om the two rifles which
were found outside the Red Fort. This witness had also
E examined 11 empties of the self-loading rifles used by the
army men while firing towards intruders, and had clearly
opined that those empties could not have been loaded
in AK-56 rifles examined by him. Thus, the prosecution
has thoroughly proved the nexus between the cartridge
F cases which were found inside the Red Fort and the
incident. This nexus is extremely important as while the
guns were found outside the Red Fort the fire empties
were found inside. This clearly suggests that the incident
of firing took place inside the Red Fort while guns were
G abandoned by the intruders outside the Red Fort. Further,
the recovery of bandoliers and hand grenades goes a
long way to prove that the incident which took place
inside the Red Fort was at the instance of the intruders.
Further, there is the evidence of PW-206 who had
H examined the rifle found at Balla House during an
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 63
DELHI
encounter in which the other terrorist was killed. That A
recovery is not seriously disputed. It is, therefore, held that
the ghastly incident of shoot out did take place at the
instance of some intruders inside the Red Fort, in which
three persons lost their lives. [Para 18-21] [98-F; 99-B-E;
100-C-H; 101-C-D] B
2.3 As regards the recovery of the polythene bag
containing currency notes and a slip with a mobile
number in the morning of 23.12.2000, this Court confirms
the finding of the trial court and the High Court that the
said polythene bag containing the currency notes and the C
slip on which the cell phone number was mentioned, was
actually found on the spot abutting the backside wall of
the Red Fort. This Court accepts the finding by the trial
court and the High Court that this polythene bag must
have slipped from a person who scaled down to the D
ground. [Para 22] [102-B·C; 105-F-H]
3.1 The investigation based on the mobile number i.e.
9811278510 written on the slip found in the polythene bag
led to locate the computer centre run by the accused- E
appellant and the flat where he was c:1pprehended in the
night of 25.12.2000. One pistol 7.6~1 mouser, six live
cartridges, a diary and a mobile phone bearing no.
9811278510 were recovered from his possession. He did
not have any licence for this pistol. This is supported by F
the police record and the recovery witnesses (PW-148).
After the accused-appellant was apprehended, he
disclosed that his associate (A-21) was staying at his hide
out at Batra House. This has come in the evidence of
Inspector PW-229. There is absolutely no reason to dis-
believe this evidence of apprehension of the accused by G
the police team which is also supported by documentary
evidence. There is also no doubt that the apprehension
of the accused was possible only because of the
scientific investigation done by the inspector of Police
H
64 SUPREME COURT REPORTS [2011] 10 S.C.R.
A (PW-229). [Para 28,29,31,34 and 44) [108-E; 112-D-E; 113·
A·B]
3.2 It is clear that telephone No.9811278510 was used
on the relevant date on 22.12.2000 for claiming the
responsibility of the attack in Red Fort. This situation
8
almost clinches the issue. From the evidence of PW-150
who proved Ext. PW-150/B, and PW-198 Ext. PW-198 / B1
to B3, the prosecution has been successful in
establishing that the cell phone No.9811278510 was used
for making the calls to BBC correspondents in Srinagar
C and Delhi. In these calls, the caller who was handling that
cell phone not only informed about the attack on the Red
Fort but also owned the responsibility of LeT therein. The
inter se connection between this cell phone and cell
phone No.9811242154 is also clearly established by the
D witness PW-198 on the basis of IMEI number used in that
cell phone. He had also established that these calls to the
BBC were made from the vicinity of the Red Fort. [Para
36-37] [121-C·G]
E 3.3 This Court, therefore, accepts that cell phone
No.9811278510 was used at a very crucial point of time
i.e. between 9 to 9.30 p.m. at night on the day when the
attack took place at or about the same time on Red Fort
wherein three innocent persons were killed. This Court
also confirms the finding by the trial court and the
F appellate court that it was this mobile number which was
found with the appellant when he was arrested. The other
corroborating evidence connecting the two mobile
numbers namely, 9811278510 and 9811242154 and the
IMEI Nos.44519944090240 and 449173405451240 and
G their interconnection with phone No.011 3355751 of BBC,
Delhi, 2452918 (BBC, Srinagar), ·2120223 of 'F' (sister of
appellant's wife) and phone No.6315904 at computer
centre is to be found in the evidence of PW-198, PW-229
and PW-230. The attempt of the investigating agency in
H analyzing the call details of these two numbers
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 65
DELHI
succeeded in establishing the connection of these two A
numbers with the number of BBC correspondent at
Srinagar, the number of BBC correspondent at Delhi, the
number at 'F's residence and the number at the computer
centre. But for this careful and meticulous analysis which
was of very high standards, it would not have been B
possible to apprehend the appellant and to de-code the
intricate and complicated maze of the conspiracy. [Para
37) [122-F-H; 123-A-E] .
3.4 The circumstance which makes these mobile cell
phones significant was the evidence of the Inspector of C
Police (PW-229) who asserted that the mobile
No.9811278510 was constantly used on 14.11.2000 to
make calls to Pakistan. (The appellant is admittedly a
Pakistani national and was staying in India
unauthorizedly). He has further asserted that calls from D
Pakistan were received on mobile number 9811278510 as
also calls from this number were made to BBC
correspondents in Delhi and Srinagar, when that mobile
number was at different places heading to Red Fort on
22.12.2000. There is no reason to dis-believe this E
evidence which was collected so painstakingly. What is
most significant in this evidence is that this very cell ·
phone number was used to make the calls to and receive
the calls from Pakistan. [Para 39-40) [123-H; 124-A-C; 125-
A-H; 126-H] F
3.5 The next significant circumstance is the evidence
of PW-162 who was posted at Rajouri on 26.12.2000 and
. on that day a message was intercepted by BSF to the
effect that a wanted militant in the shoot-out inside Red
Fort case known as 'AA' was apprehended while other G
militant was killed. According to this witness this
message was being passed by a militant called 'AS' of
LeT, to a station in Khyber in Pakistan Occupied Kashmir.
He proved the document as Ext. PW-1.62A. The other
H
66 SUPREME COURT REPORTS [2011] 10 S.C.R
A witness on this point is Constable, BSF Head Quarters
Srinagar (PW-175). [Para 41] [126-B-D]
3.6 All the voluminous evidence would not only
corroborate the prosecution version to show the
significant role played by the appellant in handling both
8
the cell phone numbers. It is of no minor significance that
on the apprehension of the appellant the news should
reach Srinagar and from there to Pakistan Occupied
Kashmir by way of wireless messages not only about the
involvement of the appellant but also about 'AS' who was
C killed in the encounter as also 'AB' who was a proclaimed
offender and was then killed in another encounter. [Para
41] [127-B-D]
4.1 There are some other significant circumstances
o relied on by the prosecution to show that the appellant,
who admittedly was a Pakistani national and had
unauthorizedly entered India, wanted to establish his
identity in India and for that purpose, he got prepared a
fake and forged ration card and on that basis, applied for
E and got a driving license and also opened bank
accounts. This was established by the evidence of PWs
1,2,3,7,16,164,165,172, 174,20,31,44,36,56 and 11~ and
163. The only purpose in doing this was to establish that
he was living in Delhi legitimately as an Indian national.
F Thus, not only did the appellant got for himself a fake and
forged ration card, but on this basis, also got prepared a
fake learning license, in which also, he gave a false
residential address. All this was obviously with an idea
to screen himself and to carry on his nefarious activities
G in Indian cities. Therefore, it is held that the appellant used
a forged ration card and got a driving license giving a
false address. [Para 49-52] [135-E-F; 136-A-H; 137-E-H;
138-A-D]
4.2 The evidence of PW-21, establishes the
H connection of the appellant with Batala House, where the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 67
DELHI
encounter took place in which the appellant's companion A
(A-21) was killed. This is further corroborated by the
evidence of PWs 232, 20, 31, 21. Needless to say that he
used all these witnesses to his own benefit for carrying
out his evil design in pursuance of the conspiracy. He
got married to 'RYF' barely a fortnight prior to the incident B
at the Red Fort. (Para 54, 55 and 58] (139-G; 140-A-F; 145-
G-H; 146-A]
5.1 The prosecution has also brought out the material
about the calls made to a Hawala dealer (A-13). The
·investigating agency raided his house on 12.01.2001 on C
the information received from the appellant. Very
significantly, the documents seized at the office of A-13,
included a Visa of Islamic Republic of Pakistan and an
identity card of NllT etc. The seizure memo is proved by
PW-83, who at the relevant time was working in the D
Directorate of Enforcement as the Chief Enforcement
Officer and deposed that the appellant in his presence
identified the photograph to be of the hawala dealer and
accepted that he used to deliver hawala money.
Therefore, this evidence is also extremely significant to E
support the role played by the appellant in the
conspiracy. [Para 42] (127-E-H; 128-A-C]
5.2 The Hawala dealer (A-13) was found to be an
Afghan national and according to the prosecution, he
F
used to supply Hawala money to the appellant.
According to the prosecution, the appellant used to
deposit the money so received in his own account with
HDFC Bank, opened on the basis of fake documents. He
also used to deposit this money in two bank accounts
of original accused No.3 and 4. According to the G
prosecution, this money was distributed to the other
terrorists in Srinagar. It cannot be disputed that the
appellant had connection wtth A-13 who remained
absconding till date. This has been established by the
evidence of PW-210, PW-79, PW-230, PW-6, PW-52, PW- H
68 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 16, PW-1, PW-2, PW-3, PW-216 and the related
documentary evidence. There is absolutely no
explanation by the appellant either by way of cross-
examination of the witnesses or by way of his statement
u/s. 313 Cr.P.C. as to where all the amounts had come
B from and why did he deposit huge amounts of
Rs.29,50,000/- in the three accounts. Further very
sizeable amount is shown to have been paid to 'RYF' in
her account in the State Bank of India. It would have to
be held that the appellant was dealing with huge sums
c of money and he has no explanation therefor. This is
certainly to be viewed as an incriminating circumstance
against the appellant. High Court as well as the trial Court
were right in drawing the inferences in respect of these
deposits made by the accused. It is obvious that the
appellant was a very important wheel in the whole
0
machinery which was working against the sovereignty of
this country, and 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. The acquittal of other accused would
E be of no consequence. [Para 60-65] [146-C-E; 152-G-H;
153-A-E, G]
6.1 It will be seen that immediately after the
apprehension the appellant was not formally arrested,
F though he was in the custody of the investigating team .
. PW-229 had undoubtedly stated that the accused was
"arrested" and his disclosure statement was recorded.
There is other evidence on record that his statement was
recorded. It is indeed in that statement which is recorded
G that he disclosed about his involvement in the Red Fort
shoot out, the role of his associate 'A-21' and about an
AK-56 rifle. The witness went on to state further that the
accused disclosed that his associate 'A-21 was staying
in the hide out at Batla Hoase. He also disclosed that he
H was having weapons and grenades and he also disclosed
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 69
DELHI
that A-21 was a trained militant of LeT and member of A
suicide squad .. Indeed, in pursuance of this information
given, the investigating team did go to the mentioned
address and an encounter did take place wherein A-21
was killed and large amount of ammunition and arms
were found at that place. [Para 66] [156-8-G] B
6.2 It is indeed true that normally for proving any
such information and attributing the same to the accused,
he must be in custody of the prosecution and, and such
when he discloses or offers to disclose any information,
his statement is recorded by the investigating agency for C
lending credibility to the factum of disclosure as also
exactitude. However, in the instant case, it was indeed a
very tense situation requiring extreme diligence on the
part of the investigating agency and it could not afford
to waste a single minute and was required to act D
immediately on the receipt of the information from the
appellant. This was all the more necessary because the
investigating agency were dealing with an extremely
dangerous terrorist causing serious danger to the safety
of the society. There is nothing wrong in the approach E
on the part of the investigating agency. What is significant
is that the events which followed do show that it is only
in pursuance of, and as a result of the information given
by the accused that the investigating agency zeroed on
the given address only to find a dreaded terrorist like A- F
21 holed up in that address with huge ammunition and
the fire arms. In this view of the matter, the· discovery
evidence can not be rejected merely because, a formal
statement was not recorded and further merely because
a formal arrest was not made of the accused. [Para 67] G
[157-B-G]
6.3 Besides, the accused being in custody of the
investigating agency, he need not have been formally
arrested. It is enough if he was in custody of the
H
70 SUPREME COURT REPORTS [2011] 10 S.C.R
A investigating agency meaning thereby his movements
were under the control of the investigating agency. A
formal arrest is not necessary and the fact that the
accused was in effective custody of the investigating
agency is enough. It has been amply proved that the
~ accused was apprehended, searched and taken into
custody. In that search the investigating agency
recovered a pistol from him along with live cartridges,
which articles were taken in possession of the
investigating agency. This itself signifies that immediately
c after he was apprehended, the accused was in effective
custody of the investigating agency. [Para 68) [157-H;
158-A-B]
6.4 As regards the failure to record the information,
it must be held that it is not always necessary. The
D essence of the proof of a discovery u/s. 27, Evidence Act
is only that it should be credibly proved that the
discovery made was a relevant and material discovery ·
which proceeded in pursuance of the information
supplied by the accused in the custody. How the
E prosecution proved it, is to be judged by the court and if
the court finds the fact of such information having been
given by the accused in custody to be credible and
acceptable even in the absence of the recorded
statement and in pursuance of that information some
F material discovery has been effected then the aspect of
discovery will not suffer from any vice and can be acted
upon. [para 69) [158-D-G]
6.5 In the instant case, immediately after the
apprehension of the appellant, he spilled the information.
G In pursuance of that information the investigating agency
1
acted with expediency and speed which in the
circumstances then prevailing was extremely necessary
nay compulsory. Ultimately, this timely and quick action
yielded results and indeed a dreaded terrorist was found
H holed up in the address supplied by the appellant-
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 71
DELHI
accused with sizeable ammunition and fire arms. A
Therefore, there is nothing wrong with the discovery
even if it is assumed that the information was not
"recorded" and it is held that immediately after the
accused had been apprehended, he gave the information
which was known to him alone and in pursuance of B
which a very material discovery was made. [Para 69]
[158-G-H; 159-A-E]
Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl.
=
SCR 483 1995 Suppl (1) SCC 80; Vikram Singh & Ors v.
State of Punjab 2010 (2) SCR 22 = 2010 (3) SCC 56; State C
of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 - relied
on
6.6 Section 27 of the Evidence Act is founded on the
principle that even though the evidence relating to the D
confessional or ot~er statements made by a person
while he is in the custody of the police officer, is tainted
and, therefore, inadmissible; if the truth of the information
given by him is assured by the discovery of a fact, it may
be presumed to be untainted and, therefore, declared E
provable insofar as it distinctly relates to the fact thereby
discovered. [Para 69] [161-C-F]
State (NCT of Delhi) v. Navjof Sandhu @ Afsan Guru
2005 (2) Suppl. SCR 79 = 2005 (11) SCC 600; Pu/ukuri
Koffaya v. King Emperor AIR 1947 PC 67 - relied on F
6.7 In the instant case, it is only because of the
· discovery made by the appellant that A-21 with the arms
and ammunition was found at the address disclosed by
the appellant. By the discovery made and recorded on G
the morning of 26.12.2000, the appellant had not only
given the information about the whole plot, but in
addition to that, he had also showen his readiness to
point out the AK-56 rifle which was thrown behind the
Red Fort immediately after the attack. In pursuance of that,
H.
72 SUPREME COURT REPORTS [2011] 10 S.C.R.
A the appellant proceeded alongwith the investigating party
and then from the spot that he had shown, AK-56 rifle
was actually found. Even a bandolier was found
containing hand grenades. In this regard, the evidence
of Inspector PW-228 (Ext. PW 218, S.I. PW-218, S.I. PW-
B 227, PW-125, PW 202 and SHO PW-234 is relevant, who
all supported the discovery. This discovery was recorded
by Ext PW-148/E. and was fully proved. [Para 69-70) [162-
A-H]
6.8 The disclosure statement of the appellant led to
C recovery of the hand grenades brought from Pakistan
and one AK-56 assault rifle. The seizure memo Ext. PW-
168/B, the disclosure statement Ext. PW-168/D and the
evidence of S.I. PW-218, S.I. PW-227 and Inspector PW-
228 are relevant in this respect. There is nothing to
D disbelieve this discovery. The hand grenades were
identified and their potency was proved by PW-202.
Considering the peculiar nature of this case, the
discovery of grenades at the instance of the appellant is
accepted. Same thing can be stated about the earlier
E discovery dated 26.12.2000 of the AK-56 Assault Rifle,
magazines, bandoleiries etc. Therefore, the formal arrest
of the appellant and the recoveries effected thereafter or
the seizure memos executed cannot be viewed with
suspicion. [Para 47-48) [132-G-H; 134-E; 130-D]
F
6.9 As regards the discovery of the hand grenades
on 1.1.2001 at the instance of the appellant, the defence
did not even attempt to say that there was anything
unnatural with this recovery. T~us, the discovery
statements attributed to the appellant and the material
G discovered in pursuance 'thereof would fully show the
truth that the appellant was involved in the whole affair.
The discovery of hand grenades behind the computer
centre was very significant. So also the discovery of the
shop of A-13, the Hawala dealer, as also the documents
H discovered therefrom, show the involvement of the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 73
DELHI
appellant in the whole affair. In this. behalf, the findings A
of the High Court are fully endorsed. [para. 71] [164-D-G]
6.1 O As regards the plea that no public witnesses
were associated, in fact; there is ample evidence on
record to suggest that though the investigating agency 8
made the effort, nobody came forward. This was all the
more so, particularly, in case of the recovery of pistol
from the appellant as also the discoveries vide Exhibit
PW-148/E. Beside, if the general public refused to join the
investigation to become Panchas, that cannot be viewed C
as a suspicious factum and on that basis, the
investigative agency cannot be faulted. After all, what is
to be seen is the genuineness and credibility of the
discovery. The police officers, who were working day and
night, had no reason to falsely implicate the appellant.
Again, the Court.cannot ignore the fact that the factum D
of discovery has been accepted by both the Courts
below. [Para 48 and 71] [133-H; 134-A-H; 135-C-D; 164-
D-G]
Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl. E
SCR 483 =1995 Suppl (1) sec 80 - relied on
7 .1 In addition to these circumstances, there is
another circumstance that a message dated 26.12.2000
was intercepted by the BSF while Ext. PW 162/A and
proved by Inspector PW-162 wherein there was a specific F
reference to the accused. Still another circumstance
would be that the accused had no ostensible means of
livelihood and yet he deposited Rs.29,50,000/- in three
accounts, and also deposited some amounts in the
account of 'RYF' and he had no explanation of these G
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 interacted with
PW-20. [Para 73] [169-G-H; 170-A-B] H
74 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 7.2 The detailed statement u/s. 313 CrPC which the
accused gave at the end of the examination was a myth
and remained totally unsubstantiated. The defence
evidence of DW-1 has no legs ~o stand. DW-1 spoke about
the marriage of her daughter 'RYF' to the appellant. Very
B strangely, she completely denied that she even knew that
the appellant was a resident of Pakistan. Much
importance, therefore, cannot be given to this defence
witness. However, she admitted that moneys were paid
into the account of 'RYF'. [Para 72) [165-A-D]
c 7.3 This Court is in complete agreement with the
findings regarding the incriminating circumstances as
recorded by the High Court. The High Court rightly came
to the conclusion that the appellant was responsible for
the incident of shooting inside the Red Fort on the night
D 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 A-21, who was killed in an encounter with the
E police at Batla House. The High Court held that the
associates, with whom the appellant had entered into
conspiracy, had attacked the Army Camp inside the Red
Fort, which suggests that there was a conspiracy to wage
war against the Government of India, particularly,
F because in that attack, sophisticated arms like AK-47 and
AK-56 rifles and hand grenades were used. [Para 74]
[170-C-H; 171-A-C]
8.1 The law on the circumstantial evidence is, by now,
settled. There can be no dispute that in a case entirely
G 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,
before relying on the circumstantial evidence and
H convicting the accused thereby has to satisfy itself
MOHD. ARIF @ ASHFAQ v. STATE OF NC'T OF 75
DELHI .
completely that there is no other inference consistent with A
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
cumulative effect thereof. [Para 75 and 76] [170-C-E; 173- B
D-E]
Sharad Birdhichand Sarda Vs. State of Maharashtra
1985 (1 ) SCR 88 = 1984 (4) SCC 116; Tanviben Pankaj
Kumar Divetia Vs. State of Gujarat 1997 (1) Suppl.
SCR 96 = 1997 (7) SCC 156; State (NCT of Delhi) Vs. Navjot C
Sandhu@ Afsan Guru 2005 (2) Suppl. SCR 79 = 2005 (11)
SCC 600; Vikram Singh & Ors. Vs. State of Punjab 2010 (2)
SCR 22 =2010 (3) SCC 56, Aftab Ahmad Anasari Vs. State
of Uttaranchal 2010 (1) SCR 1027 = 2010 (2) SCC 583 -
relied on D
8.2 In the instant case, the prosecution was
successful in establishing the circumstances against the
appellant, individually, as well as, cumulatively. There
indeed cannot be a universal test applicable commonly E
to all the situations for reaching an inference that the
accused is guilty on the basis of the proved
circumstances against him nor could there be any
quantitative test made applicable. It is the quality of each
individual circumstance that is material and that would F
essentially depend upon the quality of evidence. Clear
and irrefutable logic would be an essential factor in
· arriving at the verdict of guilt on the basis of the proved
circumstances. The instant case is such, as would pass
au the tests so far devised by this Court in the realm of
criminal jurisprudence. [Para 76] [173-G-H; 174-A-C] G
9.1 It cannot be said that the appellant has suffered
a prejudice on account of his being a Pakistani national.
The investigation in the instant case was both scientific
and fair investigation. This was one of the most difficult H
76 SUPREME COURT REPORTS [2011) 10 S.C.R.
A cases to be investigated as there could have been no
clue available to the investigating agency. The small
thread which became available to the investigating
agency was the chit found alongwith some Indian
currency at the back of the Red Fort wall in a polythene
B packet. Compliments must be paid to the Investigating
Officer PW-230 as also to all the other associated with the
investigation for being objective and methodical in their
approach. It has to be borne in mind that not a single
incidence of ill-treatment to the appellant was reported or
c proved. Again, the timely recording of the D.D. Entries,
scientific investigation using the computer, the depth of
investigation and the ability of the investigating agency
to reach the very basis of each aspect lend complete
credibility to the fairness of the investigation. [Para 77]
D [174-D-H; 175-A-B]
9.2 Similar is the role played by the trial court and the
High Court. It could not be distantly imagined that the
courts below bore any prejudice. The trial held before the
trial Judge was the epitome of fairness, where every
E opportunity was given to the accused persons and more
particularly, to the appellant. Similarly, the High Court was
also very fair in giving all the possible latitude, in giving
patient hearing to the accused-appellant. The records of
the trial and the appellate courts truly justify these
F inferences. [Para 77) [175-B-C]
10.1 So far as the plea that there could be no
conviction for the conspiracy in the absence of
conviction of any other accused for that purpose is
G concerned, there were 22 original accused persons,
some of whom were acquitted and 8 accused persons,
namely, A-12, A-13, A-14, A-15, A-16, A-17, A-18·and A-19,
against whom the investigating agency had collected
ample material and had filed chargesheet are absconding.
Besides these a·bsconding accused persons, 3 others,
H namely, A-20, A-21 and A-22 had died. The charge of
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 77
DELHI
conspiracy was against all the accused persons. The A
conspiracy also included the dead accused A-21 who
was found to be hiding and who was later killed in
exchange of fire with the police. The whereabouts of A-
21 were known only due to the discovery statement by
the appellant, in which a very clear role was attributed to B
A-21, who was also a part of the team having entered the
Red Fort and having taken part in the firing and killing of
three soldiers. It has also come in the evidence that the
other accused who was absconding, namely, A-20, was
killed in exchange of fire with police in 2002 near c
Humayun's Tomb. It is to be remembered that the
negative of the photograph of A-20 was seized at the time
of arrest of the appellant, from his wallet. Indeed, the act
of firing at the Army was not by a single person. Thus,
the case of the prosecution that there was a conspiracy 0
to attack the Red Fort and kill innocent persons, was not
affected even if the other accused persons who were
alleged to have facilitated and helped the appellant, were
acquitted. [para 78] [175-D-H; 176-A-D]
Bimbadhar Pradhan Vs. The State of Orissa 1956 SCR E
206 =AIR 1956 SC 469; Yashpal Milla/ Vs. State of Punjab
1978 ( 1 ) SCR 781=1977 (4) SCC 540; Ajay Agarwal Vs.
Union of India & Ors. 1993 (3) SCR 543 = 1993 (3) SCC 609;
Nazir Khan & Ors. Vs. State of Delhi 2003 (2) Suppl.
SCR 884 = 2003 (8) sec 461 - relied on F
State of Himachal Pradesh Vs. Krishna Lal Pradhan
1987 (2) SCC 17; State through Superintendent of Police,
CBI/SIT Vs. Nalini & Ors. 1999 (3) SCR 1 = 1999 (5) sec
253; Firozuddin Basheeruddin & Ors. Vs. State of Kera/a 2001 G
(7) SCC 596; State (NCT of Deihl) Vs. Navjot Sandhu 2005
(2) Suppl. SCR 79 = 2005 (11) SCC 600 - referred to
10.2 There was no argument addressed before this
Court to the effect that there was no conspiracy. The only
argument advanced was that the appellant alone could H
78 SUPREME COURT REPORTS [2011) 10 S.C.R.
A not have been convicted for the conspiracy, since all the
other accused were acquitted. Once the prosecution
proves that there was a meeting of minds between two
persons to commit a crime, there would be an emergence
of conspiracy. The fact that barely within minutes of the
B attack, the BBC correspondents in Srinagar and Delhi
were informed, proves that the attack was not a
brainchild of a single person, but there was a definite plan
and a conspiracy. It was undoubtedly an extremely well·
planned attempt to overawe and to wage war against the
c Government of India. [Para 81] [187-E-H; 188-A-C]
Kehar Singh Vs. State (Delhi Admn.) 1988 (2) Suppl.
SCR 24 =AIR 1988 SC 1883 - relied on
10.3 The offence of conspiring to wage a war is
D proved to the hilt against the appellant, for which he has
been rightly held guilty for the offence punishable u/s.
121 and 121-A, IPC. The appellant is also rightly held
guilty for the offence punishable rr/s. 120-B r/w s. 302, IPC.
This Court agrees with the verdict of the trial court as well
E as the High Court. [Para 81] [188-D-G]
11.1 As regards the sentence, the High court
concurred with the finding of the trial court that this was
a rarest of the rare case. The High Court has observed
that the counsel appearing for the appellant did not
F highlight any mitigating circumstance justifying the
conversion of death sentence to life imprisonment. [Para
82] [189-B-D]
11.2 This was a unique case where Red Fort, a place
G of paramount importance for every Indian heart was
attacked where thr~e Indian soldiers lost their lives. This
is a place with glorious history, a place of great honour
for every Indian, a place with which every Indian is
attached emotionally. An attack on a symbol that is so
H deeply entrenched in the national psyche was, therefore,
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 79
DELHI
nothing but an attack on the very essence of the hard A
earned freedom and liberty so very dear to the people of
this country. It was a blatant, brazenfaced and audacious
act aimed to over awe the Government of India. This was
not only an attack on Red Fort or the army stationed
therein, this was an arrogant assault on the self respect B
of this great nation .. Therefore, this case becomes a
rarest of rare case. This was nothing but an undeclared
war by some foreign mercenaries like the appellant and
his other partners, in conspiracy who either got killed or
escaped. In conspiring to bring about such kind of attack c
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
India. Therefore, this case becomes a rarest of rare case.
(Para 83] (189-F-H; 191-B-H; 192-A-B] D
State v. Navjot Singh Sandhu 2005 (2) Suppl. SCR 79 =
2005 (11) SCC 600; State of Tamil Nadu v. Nalini 1999 (3)
=
SCR 1 AIR 1999 SC 2640; Machhi Singh v. State of
Punjab 1983 (3) SCR 413 = 1983 (3) SCC 470 - relied on
E
11.3 In Machhi Singh's case, a principle was culled
out that when the collective conscience of the community
is so shocked, that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of F
retaining death penalty, the same can be awarded. The
other test includes the crime of enormous proportion. For
instance when multiple murders say of all or almost all
the members of a family or a large number of persons of
a particular caste, community or locality are committed.
Applying both the tests in the instant case, this Court is G
of the opinion that this is a case wh'ere the conscience
of the community would get shocked and it would
definitely expect the death penalty for the appellant.
Besides, three soldiers who had nothing to do with the
conspirators were killed. There is no reason to hold that H
80 SUPREME COURT REPORTS [2011] 10 S.C.R.
A their murder was in any manner prompted by any
provocation or action on their part. This would be an
additional circumstance which would justify the death
sentence. The defence did not attempt to bring any
mitigating circumstance. Therefore, this Court has no
B doubts that death sentence was the only sentence in the
peculiar circumstance of the case. The judgment of the
trial court and the High Court convicting the accused and
awarding him death sentence are confirmed. All the other
sentences are also confirmed. [Para 84] [195-B-E; 194-F-
C H; 195-A-D]
Bachan Singh v. State of Punjab AIR 1980 SC 898 -
relied on
Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238
o - referred to
Case Law Reference:
1994 (1) Suppl. SCR 483 Relied on Para 48
2010 (2) SCR 22 Relied on Para 69
E
2005 (2) Suppl. SCR 79 Relied on Para 69
2005 (11) sec 600 relied on Para 69
AIR 1947 PC 67 relied on Para 69
F
1985 (1) SCR 88 relied on para 75
1997 (1) Suppl. SCR 96 relied on para 75
2005 (2) Suppl. SCR 79 relied on para 75
G 2010 (2) SCR 22 relied on para 75
2010 (1) SCR 1027 relied on para 75
1956 SCR 206 relied on para 78
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 81
DELHI
1978 (1) SCR 781 relied on para 78 A
1993 (3) SCR 543 relied on para 78
2003 (2) Suppl. SCR 884 relied on para 78
1987 (2) sec 11 referred to para 78 B
1999 (3) SCR 1 referred to para 78
2001 (7) sec 596 referred to para 78
2005 (2) Suppl. SCR 79 referred to para 79
c
1988 (2) Suppl. SCR 24 relied on para 81
2005 (2) Suppl. SCR 79 relied on para 83
1999 (3) SCR 1 relied on para 84
1983 (3) SCR 413 relied on para 84 D
AIR 1980 SC 898 relied on para 84
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 98-99 of 2009.
E
From the Judgment & Order dated 13.09.2007 of the High
Court of Delhi at New Delhi in Death Sentence Reference No.
2 of 2005, Criminal Appeal No. 927 of 2005.
Kamini Jaiswal, Abhimanue Shreshtha, Divyesh Pratap F
Singh for the Appellant.
Gopal Subramanium, SG, Mukul Gupta, Satyakam,
Anubhav Kumar, Sadhna Sandhu, Som Prakash, Anchit
Sharma, Rajat Katyal, Sanjeev Joshi, Divya Chaturvedi, D.S.
Mahra, Anil Katiyar for the Respondent. G
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. The appellant (admittedly a
Pakistani national) challenges his concurrent conviction by the
H
82 SUPREME COURT REPORTS [2011) 10 S.C.R .
. A trial Court and the High Court as also the death sentence
awarded to him, in this appeal.
2. On 22.12.2000 at about 9 p.m. in the evening some
intruders started indiscriminate firing and gunned down three
B army Jawans belonging to 7th Rajputana Rifles. This battalion
was placed in Red Fort for its protection considering the
importance of Red Fort in the history of India. There was a
Quick Reaction Team of this battalion which returned the firing
towards the intruders. However, no intruder was killed and the
C intruders were successful in escaping by scaling over the rear
side boundary wall of the Red Fort. This attack rocked the whole
nation generally and the city of Delhi in particular as Red Fort
is very significant in the history which was taken over by British
Army way back in 1857 and was retrieved back to India on
15.8.1947. It is also significant tO note that the Prime Minister
D addresses the nation from this very Red Fort on every 15th of
August.
The three unfortunate soldiers who lost their lives in this
attack were:-
E (i) A civilian Sentry namely, Abdullah Thakur
(ii) Rifleman (Barber) Uma Shankar
(iii) Naik Ashok Kumar, who was injured and then
succumbed to his injuries later on.
F
3. The Red Fort comes within the local jurisdiction of Police
Station Kotwali. The Information was recorded by DD No.19A,
Exhibit PW-15/B and Sub-Inspector (S.I.) Rajinder Singh (PW-
137) rushed to the spot. SHO Roop Lal (PW-234) who was the
G Station House Officer of Kotwali police station also reached the
spot and recorded the statement of one Capt. S.P. Patwardhan
(PW-189) which was treated as the First Information Report.
This First Information Report refers to two persons in dark
clothing and armed with AK 56/47 rifles having entered the Red
H Fort from the direction of Saleem Garh Gate/Yamuna Bridge.
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 83
DELHI [V.S. SIRPURKAR, J.]
It is further stated that first they fired at the civilian Sentry A
Abdullah Thakur, secondly they came across rifleman (barber)
Uma Shankar near Rajputana Rifles MT lines and fired at him
due to which he died on the spot. It is further mentioned that
lastly the intruders ran into the room in the unit lines close to
the office complex and fired shots at Naik Ashok Kumar who B
was seriously injured. The FIR further mentions that thereafter
they ran towards ASI Museum complex and fired in the direction
of police guard room located inside the Museum. At this stage,
the quick reaction team started firing at them. However, they
escaped into the wooded area close to the ring road. The FIR c
also mentions that some fired/unfired ammunition was
recovered from the spot.
4. The investigation started on this basis. During the
examination of the spot; one live cartridge Exhibit PW-115/38
and number of cartridge cases (Exhibit PW-115/1-37) and D
(Exhibit PW-189/32-71), three magazines (Exhibit PW-189/1-
3) of assault rifles, one of which had 28 live cartridges (Exhibit
PW-189/4-31) were found and handed over to the police vide
memo Exhibit PW-189/C and Exhibit PW-115/A. The empties
of the cartridges fired by the Quick Reaction Team through the E
self loading rifles were deposited with ammunition store of 7
Rajputana rifles and were handed over to the police later on
vide memo Exhibit PW-131/C.
5. On the next day, i.e. on 23.12.2000, in the morning at F
about 8.10 a.m., the BBC news channel flashed the news that
Lashkar-e-Toiba had claimed the responsibility for the shooting
incident in question which was entered in the daily diary. On
the same morning one AK56 assault rifle (Exhibit PW-62/1) lying
near Vijay Ghat on the back side of Lal Qila was found G
abandoned. There were seven cartridges in the magazine. They
were taken into police possession vide memo Exhibit PW-62/
F. On the same morning in early hours extensive search went
on of the back side of the Red FO-rt--T!t_e----..:police found a
polythene bag containing some currency notes--of~c:tifferent
. -- H
84 SUPREME COURT REPORTS [2011] 10 S.C.R.
A denominations and a piece of paper, a chit (Exhibit PW-183/
B) on which a mobile No.9811278510 was mentioned.
According to the prosecution, the intruders had escaped from
that very spot by scaling down the rear side boundary wall of
Red Fort using the pipe and further a small platform for landing
s from below the pipe. According to the prosecution, while
jumping from the platform, the said polythene bag with cash and
the paper slip fell out of the pocket of one of the intruders. The
currency notes and the paper slip were seized vide memo
Exhibit PW-183/A. It was on the basis of this cell phone number
c that the investigation agency started tracing the calls and
collecting the details from which it transpired that between 7:40
p.m. and 7:42 p.m. on the night of the incident, two calls were
made from this mobile number to telephone No.0194452918
which was the number of one BBC correspondent in Sri Nagar,
Altaf Hussain (PW-39). It was also found that three calls were
0
made from same mobile number to telephone number
0113355751 which number was found to be that of BBC
correspondent in Delhi, Ayanjit Singh (PW-41) between 9:25
p.m. and 9:33 p.m. The police found out that this mobile
No.9811278510 was being used from two instruments whose
E IMEI number (identification number engraved on the mobile
handset by the manufacturer) were obtained from mobile
service provider ESSAR. These numbers were
445199440940240 and 449173405451240. The police could
also find out that the person who had mobile connection card
F having No.9811278510 had another mobile cash card of
ESSAR company with No.9811242154 and from this number
large number of calls were found to have been made to
telephone No.2720223 which was found to be the number of I
telephone installed at flat No.308A, DOA flats, Ghazipur, Delhi.
G This flat was registered in the name of one Farzana Farukhi.
Similarly, number of calls were found to have been made from
telephone No.2720223 to 9811242154. It was also found that
number of calls were made from cell No. 9811242154 to
telephone No.6315904 which was a landline number installed
H at House No.18-C, Gaffur Nagar, Okhala where a computer
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 85
DELHI [V.S. SIRPURKAR, J.]
centre in the name of 'Knowledge Plus' was being run. The A
further investigation revealed that this saiq computer centre was
being run by one Mohd. Arif@ Ashfaq (appellant herein) who
was residing at the flat mentioned as flat No.308A, DOA Flats,
Ghazipur where landline No.2720223 was installed. The police,
therefore, could connect the said flat No.308A at Ghazipur and 8
the computer Centre i.e. Knowledge Plus at Okhala and could
also connect Mohd. Arif @ Ashfaq with these two places. A
surveillance was kept on these places for two days. During this
period of surveillance, the computer centre had remained
closed. On the basis of some secret information the premises C
at 308A, Ghazipur were raided on the night of 25-26.12.2000
and the appellant-accused Mohd. Arif @ Ashfaq was
apprehended by the police while he was entering the flat. It was
found during the investigation that Farzana Farukhi in whose
name telephone No. 2720223 was registered was a divorcee
sister-in-law of Mohd. Arif@ Ashfaq i.e. her sister was married D
to Mohd. Arif@ Ashfaq whose name was Rehmana Yusuf
Farukhi. Mother of these two sisters, namely, Ms. Qamar
Farukhi (DW-1), was also a resident of the same flat.
6. On his apprehension, Mohd. Arif@ Ashfaq (appellant) E
was cursorily searched by Inspector Ved Prakash (PW-173)
during which one pistol (Exhibit PW-148/1) with six live rounds
was found with him. They were sealed and taken into police
custody. The appellant on his apprehension accepted his
involvement in the incident inside the Lal Qila and gave further F
information to the policemen about the presence of his
associate Abu Shamal @ Faizal as also the ammunitions at
their hide out at House No.G-73 Batla House, Murari Road,
Okhala, New Delhi.
7. He was immediately taken to that house by the raiding G
team which was headed by Inspector Mahesh Chandra Sharma
(PW-229) and truly enough, in pursuance of the information
given by him, the associate Abu Shamal was found to be there.
The police party did not approach the flat immediately as the
H
86 SUPREME COURT REPORTS [2011] 10 S.C.R.
A house was found to be locked. However, at about 5.15 a.m. in
the morning one person had gone inside the house and closed
the door from inside. The police then asked him to open the
door but instead of opening the door, he started firing from
inside at the police party. The police party returned the firing
8 with their fire arms and ultimately the person who was firing from
inside died and was identified by appellant Mohd. Arif @
Ashfaq to be Abu Shamal @ Faisal. Substantial quantity of
ammunition and arms was recovered from that flat being one
AK-56 rifle (Exhibit PW-229/1), two hand grenades one of
which was kept in Bandolier (Exhibit PW-229/5), two
C magazines (Exhibit PW-229/2-3) one of which had 30 live
cartridges. Some material for cleaning arms kept in a pouch
(Exhibit PW-229/6) and Khakhi Colour Uniform (Exhibit PW-
229/8) were recovered and seized by the police vide seizure
Memo (Exhibit PW-229/D & E). A separate case was
D registered under Sections 186, 353 and 307, IPC as also
Sections 4 & 5 of the Explosive Substance Act and Sections
25, 27 of the Arms Act was registered at New Friends Colony
in FIR No.630/2000. That case ended up in preparation of a
closure report because the accused had already died in the
E encounter with the police. After the above encounter, the
accused appellant was brought back to his flat where the
search had already been conducted by policemen. During that
search one Ration card which was ultimately found to be forged
(Exhibit PW-164/A), one driving license in the name of Mohd.
F Arif@ Ashfaq (Exhibit PW-13/1), one cheque book of HDFC
bank in the name of Mohd. Arif @ Ashfaq (appellant herein),
one ATM card, one cheque book of the State Bank of India in
the name of Rehmana Yusuf Farukhi, wife of accused appellant
was found. The said rifle was also taken into custody. One pay-
G in slip of Standard Chartered bank (Exhibit PW-173/K) showing
deposit of Rs.5 lakhs in the account of Mis. Nazir & Sons was
found. The said firm belonged to other accused Nazir Ahmad
Qasid. This amount was deposited by the appellant may be
through Hawala from the high ups of the Lashkar-e-Toiba.
H Mohd. Arif@ Ashfaq (appellant herein) was then brought back __
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 87
DELHI [V.S. SIRPURKAR, J.]
and there S.I. Harender Singh (PW-194) arrested Mohd. Arif A
@ Ashfaq (appellant herein). He searched him again when one
Motorola mobile handset was recovered from his possession.
The number of that instrument was found to be 9811278510.
Its IMEI number which fixed the identification number of the hand
set engraved on the instrument was 445199440940240. The B
cell phone was thereafter taken in possession.
8. In his interrogation by S.I. Harender Singh (PW-194),
accused made a discovery statement which is recorded as
Exhibit 148/E about one assault rifle which was thrown near
Vijay Ghat behind the Red Fort after the incident by one of the C
associates (this was already recovered by the police) and one
AK-56 rifle and some ammunition behind the rear wall of Red
Fort by his another associate. In pursuance of that, he was
taken to the backside of Red Fort and from there on his pointing
out one AK-56 rifle (Exhibit PW-125/1), two magazines (Exhibit D I
PW"'125/2-3) having live cartridgeS!,.Qne bandolier and four hand
grenades were recovered in· the presence of the ballistic
experts S.K. Chadha (PW-125) and N.B. Bardhan (PW-202).
The same was taken to the police station. The ballistic experts
after defusing the hand grenades took the whole material in E
their possession vide Exhibit memo PW- 218/C. Another
discovery statement (Exhibit PW-168/A) was made on
01.01.2001 through which he got recovered three hand
grenades from the place near Jamia Millia lslamia University
duly hidden. This spot was on the back side of his computer F
centre 'Knowledge Plus'. They were seized vide seizure memo
Exhibit PW-168/B. A separate FIR was also recorded by FIR
No.3/2001.
9. The prosecution case, as it revealed on the basis of
the investigation which followed, appears to be that the G
accused-appellant was a Pakistani national and eventually
joined a terrorist organization called Lashker-e-Toiba. The
accused-appellant took extensive training by using
sophisticated arms like AK-56 rifles and hand grenades and
H
88 SUPREME COURT REPORTS (2011] 10 S.C.R.
A had illegally entered the Indian territory along with arms and
ammunition in August, 1999 and camped himself at Srinagar
in the company of other members of Lashker-e-Toiba who were
similarly motivated by that Organization. The Organization had
also decided to overawe India by their terrorist activities in
B different parts of India and to fulfill that object, the accused-
appellant and his fellow terrorists had planned an attack on
Army stationed inside Red Fort. According to the prosecution,
the money required for this operation was collected by the
accused-appellant through hawala channels, which was evident
c from the fact that during the investigation, he had led the police
to one of the hawala dealers in Ballimaran area in Old Delhi.
One Sher Zaman Afghani and Saherullah were the said hawala
·dealers, but they could not be apprehended. The police,
however, recovered Rs.2 lakhs from the shop which was left
open. From the information given by the accused-appellant, the
0
police ultimately caught hold of 10 more persons, which
included his Indian wife Rehmana Yusuf Farukhi. The other
accused persons were Nazir Ahmad Qasid, his son Farooq
Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam,
E Sadakat Ali, Shahanshah Alam, Devender Singh, Rajeev
Kumar Malhotra and Mool Chand Sharma. Excepting the
accused-appellant, nobody is before us, as few of them were
acquitted by the trial Court and others by the appellate Court.
It is significant enough that there is no appeal against the
acquittal by the High Court. There were number of other
F persons according to the prosecution who were the co-
conspirator with the accused-appellant. However, they were not
brought to book by the police. They were declared as
proclaimed offenders. There is a separate charge-sheet filed
against those proclaimed offenders also.
G
10. In order to establish an Indian identity for himself, the
accused-appellant had married Rehmana Yusuf Farukhi who
was also joined as an accused. According to the prosecution,
she had full knowledge about the accused-appellant being a
H Pakistani national and his nefarious design of carrying out
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 89
DELHI [V.S. SIRPURKAR, J.]
terrorist activities. Significantly enough, she had married only A
14 days prior to the shoot-out incident i.e. on 8.12.2000. She
was of course, paid substantial amounts from time to time by
the accused-appellant prior to her marrying him and this amount
was deposited in her bank account No. 5817 with the State
Bank of India. The prosecution alleged that the accused- B
appellant was in touch with Rehmana Yusuf Farukhi even prior
to the marriage. One other accused, Sadakat Ali was arrested
for having given on rent his property in Gaffur Nagar to the
accused-appellant for running a computer centre in the name
of 'Knowledge Plus'. Sadakat Ali is said to have been fully c
aware of the design of the accused-appellant and he had
knowingly joined hands with the accused-appellant and had not
informed the police that he had let out his premises to the
accused-appellant. Huge money used to be received by the
accused-appellant which he used to deposit in the accounts of D
accused Farooq Ahmed Qasid and Nazir Ahmad Qasid in
Standard Chartered Grindlays Bank's branch at Srinagar and
after withdrawing money so deposited, the same used to be
distributed amongst their fellow terrorists for supporting the
terrorist activities. According to the prosecution, huge amount
E
of money was deposited by the accused-appellant in the two
bank accounts of Nazir & Sons and Farooq Ahmed Qasid with
Standard Chartered Grindlays Bank's branch at Connaught
Place, New Delhi. The police was able to retrieve one deposit
receipt showing deposit of five lakhs of rupees in November,
2000 in the account of Nazir & Sons. The said receipt was F
recovered from the flat of the accused-appellant after he was
apprehended on the night of 25/26.12.2000.
11. Some other accused of Indian origin had also helped
the accused-appellant, they being Devender Singh, G
Shahanshah Alam and Rajeev Kumar Malhotra. They got a
forged learner's driving license No. 9091 (Exhibit PW-13/C)
which was purported to have been issued by Delhi Transport
Authority's office at Sarai Kale Khan, wherein a false residential
address was shown as 8-17, Jangpura. On that basis, the H
90 SUPREME COURT REPORTS [2011) 10 S.C.R.
A accused-appellant also got a permanent driving license
(Exhibit PW-13/1) in his name from Ghaziabad Transport
Authority. The accused-appellant, with the cooperation of these
three accused persons, had submitted a photocopy of a ration
card, again with the forged residential address as 102, Kaila
B Bhatta, Ghaziabad. This very driving license was then used by
the accused-appellant for opening a bank account with HDFC
Bank in New Friends Colony, New Delhi, wherein he had
shown his permanent address as 102, Kaila Bhatta,
Ghaziabad and mailing address as 18, Gaffur Nagar, Okhla,
C New Delhi. Needless to mention that even these two were not
his actual addresses. These were utilized by him for stashing
the money that he received from the foreign countries. Accused
Babar Mohsin provided shelter to the accused-appellant in his
house in Delhi in February-March, 2000, so that the accused-
D appellant could prepare a base in Delhi for carrying out terrorist
acts in Delhi. This Babar Mohsin had also accompanied the
accused-appellant on his motorcycle to different parts of Delhi
in order to show various places of importance to the accused-
appellant, which could be targeted for a terrorist attack. The
police was also able to retrieve a letter (Exhibit PW-10/C)
E addressed to Babar Mohsin, thanking him for the help
extended by him to the accused-appellant during his visit to
Delhi. This letter was written from Srinagar. This letter was
seized by the police from the dickey of the motorcycle
belonging to Babar Mohsin on 07.0t.2001. One other accused
F Matloob Alam was having a ration shop in Okhla while
accused Mool Chand Sharma was the area Inspector of Food
& Supply Department. Both these accused persons had helped
the accused-appellant in getting a ration card (Exhibit PW-164/
A) which contained false information. Accused Matloob Alam
G was charged for distributing number of fake ration cards by
taking bribe from the persons to whom the cards were issued.
A separate FIR being FIR No. 65/2001 was registered against
Matloob Alam at Police Station New Friends Colony, New
Delhi. In fact, the ration card mentioned ear1ier was prepared
H by the accused Matloob Alam and the handwriting expert had
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 91
DELHI [V.S. SIRPURKAR, J.]
given a clear opinion that the said ration card was in the hands A
of Matloob Alam himself. The prosecution, therefore,
proceeded against 11 accused persons, in all, who were
charge-sheeted on the ground that they had all conspired
together to launch an attack on the Army establishment inside
the Red Fort so as to pressurize the Government of India to B
yield to the demand of the militants for vacating Kashmir
12. The police got examined all the arms and ammunition
from the ballistic expert N.B. Bardhan (PW-202), Senior
Scientific Officer-I, CFSL, New Delhi. Needless to mention that
the said witness had found that the cartridges of the gun had C
actually been fired from AK-56 rifles which was got recovered
by the accused-appellant from the backside of Red Fort and
Vijay Ghat. The weapons were found by the witness to be in
working order. The hand grenades recovered at the instance
of the accused-appellant from Jamia Milia lslamia University D
were also examined and found to be live ones and these were
defined as "explosive substance". The pistol and the cartridges
recovered from the possession of the accused-appellant on his
apprehension were also got examined by another ballistic
expert Shri K.C. Varshney (PW-211), who vide his report E
Exhibit PW-211/A, found the said pistol to be in working order
and the cartridges to be live ones and being capable of being
fired from the said pistol. The police also found that the eleven
empties of fired cartridges from Self Loading Rifles (SLRs) of
the Army men were actually fired from SLRs made by F
Ordinance Factory at Kirki, India and that they could not be
loaded in either of the two Assault Rifles recovered by the
police.
13. This was, in short, a conspiracy and after obtaining
the necessary sanctions, the police filed a charge-sheet against G
11 accused persons. All the cases were committed to the Court
of Sessions and though they were registered as separate
Sessions cases, they were clubbed by the trial Court and the
case arising out of FIR No. 688/2000 was treated as the main
H
92 SUPREME COURT REPORTS [2011] 10 S.C.R.
A case. We do not propose to load this judgment by quoting the
charges framed against all the accused persons. Suffice it to
say that they were charged for the offence punishable under
Sections 121, 121A and 120-8 IPC read with Section 302, IPC.
The accused-appellant was individually charged for the offence
B punishable under Section 120-8, IPC on various counts as also
for the offence punishable under Section 3 of the Arms Act read
with Sections 25 and 27 of the Arms Act as also Sections 4
and 5 of the Explosive Substances Act. Lastly, the accused-
appellant was also charged for the offence punishable under
c Section 14 of the Foreigners Act for illegally entering into India
without valid documents.
14. The prosecution examined as many as 235 witnesses
and exhibited large number of documents. Accused Rehmana
Yusuf Farukhi alone adduced evidence in defence and
D examined her own mother and tried to show that they did not
know the accused-appellant was a militant and that the money
in the bank account of Rehmana Yusuf Farukhi was her own
money and not given by the accused-appellant.
E 15. The accused-appellant was convicted for the offence
punishable under Sections120-B, 121 and 121-A, IPC,
Sections 186/353/120-B, IPC, Section 120-8, IPC read with
Section 302, IPC, Sections 468/471/474, IPC and also under
Section 420 read with Section 120-8, IPC. The accused-
F appellant was also held guilty for the offence punishable under
Section 25 of the Arms Act, Section 4 of the Explosive
Substances Act and Section 14 of the Foreigners Act. We are
not concerned with the convictions of accused Nazir Ahmad
Qasid, Farooq Ahmed Qasid, Rehmana Yusuf Farukhi, Babar
G Mohsin, Sadakat Ali and Matloob Alam. Barring the above
accused, all the other accused persons were acquitted by the
trial Court. The accused-appellant was awarded death
sentence for his convictions under Section 121, IPC as also
under Section 302 read with Section 120-8, IPC. He was
awarded rigorous imprisonment for 10 years for his conviction
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 93 .
DELHI [V.S. SIRPURKAR, J.]
under Section 121-A, IPC. He was awarded sentence of life A
imprisonment for his conviction under Section 4 of the
Explosive Substances Act, while on other counts, he was
awarded rigorous imprisonment for 7 years for the conviction
under Sections 468/471/474/420, IPC. He was awarded
rigorous imprisonment for 3 years for his conviction under B
Section 25 of the Arms Act. He was awarded 2 years' rigorous
imprisonment for his conviction under Section 353, IPC and 3
months' rigorous imprisonment for his conviction under Section
186, IPC. He was slapped with fines also with defaults
stipulation. The sentences were, however, ordered to run c
concurrently. The other accused Rehmana Yusuf Farukhi, Babar
Mohsin,. Nazir Ahmad Qasid, Farooq Ahmed Qasid, Matloob
Alam and Sadakat Ali were awarded various convictions;
however, their appeal was allowed by the High Court. That
leaves us only with the appeal filed by the present appellant. 0
The High Court also confirmed the death sentence awarded by
the trial Court to Mohd. Arif@ Ashfaq (accused-appellant). The
State had also filed one appeal challenging the acquittal of
accused Rehmana Yusuf Farukhi, Sadakat Ali and Babar
Mohsin for the serious offence of hatching conspiracy with co- E
accused Mohd. Arif@ Ashfaq, Farooq Ahmed Qasid and Nazir
Ahmad Qasid to wage war against the Government of India,
so also an appeal was filed against the accused Farooq
Ahmed Qasid and Nazir Ahmad Qasid for enhanced
punishment of death penalty in place of the sentence of life
imprisonment awarded to them by the trial Court. The State, F
however, did not file any appeal against the four acquitted
accused persons. The High Court, after examination in details,
C0'1firmed the conviction and the sentence only of the present
appellant, while all the other appeals filed by other accused
persons were allowed and they were acquitted. The appeals G
filed by the State for enhancement, as also against the acquittal
of other accused persons from the other charges, were
dismissed by the High Court. That is how, we are left with the
appeal of Mohd. Arif@ Ashfaq, the present appellant herein.
H
94 SUPREME COURT REPORTS [2011) 10 S.C.R.
A .· 16. The first contention raised by Ms. Kamini Jaiswal,
learned counsel appearing on behalf of the respondent was that
no such incident of outsiders going into the Red Fort and
shooting ever happened. The learned counsel further argued
that the said shooting was as a result of the brawl between the
B Army men themselves. In order to buttress her argument, the
learned counsel further said that even the police was not.
permitted to enter the Red Fort initially and though an enquiry
was held regarding the incident, the outcome of such enquiry
has never been declared. The learned counsel attacked the
c evidence of Capt. S.P. Patwardhan (PW-189) on the ground
that the report made by him which was registered as FIR on
22.12.2000 was itself suspicious, as it was clearly hearsay. The
learned counsel further relied on the evidence of Head
Constable Virender Kumar (PW-15) who was a duty officer at
D Kotwali Police Station and claimed that he received the
information at about 9.25 pm which he had recorded as DD
No. 19A. It was pointed out that the said DD Entry was handed
over to S.I. Rajinder Singh (PW-137) and Constable Jitender
Singh (PW-54) was directed to ac1...ompany him. It was also
pointed out that SHO Roop Lal (PW-234) was informed about
E the incident and he handed over to S.I. Rajinder Singh (PW-
137) the report at 11.30 pm and it was on that basis that the
FIR No. 688/2000 was registered at about 12.20 am on
23.12.2000. The learned counsel then relied upon the report
in the newspaper Hindustan Times in which it was stated that
F the police intelligence was not ruling out the possibility of shoot
out being insiders' job. The learned counsel also referred to the
evidence of Constable Jitender Singh (PW-54), Naik Suresh
Kumar (PW-122), Major Manish Nagpal (PW-126), Mahesh
Chand (PW-128), Retd. Subedar D.N. Singh (PW-131),
G Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh (PW-
137), as also the evidence of Major D.K. Singh (PW-144). It .
-
- was tried to be argued that there were inter se contradictions
in the evidence of all the witnesses and the whole story of some
intruders going into the Red Fort and shooting was nothing but
H a myth. It was also suggested by the learned counsel that there
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 95
DELHI [V.S. SIRPURKAR, J.] ·
Nas serious dispute. in the versions regarding the ammunition A
used by the intruders and ammunition used by the Army
personnel. Fault was found with the timing of registration of FIR
No. 688/2000. The learned counsel also stated that the
prosecution had not brought on record any register which is
maintained for recording the entry of any vehicle in the Red Fort. B
The learned counsel further suggested a contradiction in the
evidence of Hawaldar Dalbir Singh (PW-134) and the
statement of Retd. SubedarD.N. Singh (PW-131) regarding as
to who took the rifle from Hawaldar Dalbir Singh (PW-134),
whether it was Major D.K. Singh (PW-144) or Major Manish c
Nagpal (PW-126). About the timings of various police officers
reaching including that of SHO Roop Lal (PW-234), the learned
counsel pointed out that there were some deficiencies.
17. Before we appreciate these features of the evidence
and the contentions raised by the learned counsel for the D
defence, we must first clarify that this Court ordinarily does not
go into the appreciation of evidence, particularly, where there
are concurrent findings of facts. We have very closely examined
both the judgments below and found that there is a thorough
discussion as regards the evidence, oral as well as E
documentary, and it was only after a deep consideration of such
evidence that the trial and the appellate Courts have come to
the concurrent finding against the appellant.In order to see as
to whether the acquittal of other accused persons can be linked
to the verdict against the appellant, we have examined even F
the other evidence which did not necessarily relate to the
criminal activities committed by the appellant. lnspite of the fact
that there has been a concurrent verdict against this appellant, ·
still we have examined the oral and documentary evidence not
only relating to the appellant, but also to the other accused G
persons. As a result, we have come to the conclusion that the .
trial and the appellate Courts have fully considered the oral and
documentary evidence for coming to the conclusions that they
did. In view of the concurrent findings, the scope to interfere on
the basis of some insignificant contradictions or some H
96 SUPREME COURT REPORTS (2011] 10 S.C.R.
A microscopic deficiencies would be extremely limited. All the
same, this being a death sentence matter, we ourselves have
examined the evidence.
18. From the clear evidence of Capt. S.P. Patwardhan
(PW-189), Major Manish Nagpal (PW-126), Retd. Subedar
8
D.N. Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and
Major D.K. Singh (PW-144), we are of the clear opinion that
what took place on the said night on 22.12.2000 could not be
just set aside as an internal brawl between the Army men
C themselves. The suggestion is absolutely wild. We find from the
evidence that none of these witnesses who have been named
above and who were the direct witnesses to the firing incident
have been given this suggestion in their cross-examination that
it was merely a brawl between the Army men. That apart, there
are some circumstances which completely belie the theory of
D internal brawl. It would have to be remembered that a civilian
Sentry Abdullah Thakur was the first to lose his life. There is
nothing to suggest that the said Sentry Abdullah Thakur or the
second casualty Rifleman (Barber) Jma Shankar, as also Naik
Ashok Kumar had developed any enmity with anybody in the
E battalion. Further, if this was a brawl between the Army men,
there was no reason why Abdullah Thakur was shot at and
killed. We also do not find any reason to suspect the version
of Major Manish Nagpal (PW-126) who himself claimed to have
fired six rounds in the direction of Ring Road after taking a self
F loading rifle from Hawaldar Dalbir Singh (PW-134). In fact, there
is no contradiction in his version and the version of Hawaldar
Dalbir Singh (PW-134). The version of Major Manish Nagpal
(PW-126) is in fact corroborated by the evidence of Major D.K.
Singh (PW-144) as also the evidence of Retd. Subedar D.N.
G Singh (PW-131). Even Major D.K. Singh (PW-144) had fired
alongwith Major Manish Nagpal (PW-126) and they had fired,
in all, 11 rounds, the empties of which were given by these two
officers to Retd. Subedar D.N. Singh (PW-131). Ultimately,
these empties were produced before the civil police officers
H and were taken into possession vide Exhibit PW-131/A. This
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 97
DELHI [V.S. SIRPURKAR, J.]
version is also corroborated by Hawaldar Dalbir Singh (PW- A
134). We have carefully seen the evidence of all these witnesses
mentioned above and found it trustworthy. It must be mentioned
that at 9.23 pm, a call was made to the Police Control Room
(PCR) by Major Manish Nagpal (PW-126) suggesting that some
persons had run away after firing inside the Red Fort and that B
they had gone towards the Ring Road. This was proved by the
lady Constable Harvir Kaur, PCR (PW-77) and the concerned
document is Exhibit PW-77/A which lends full support to the
version and suggests that there was an incident of shooting in
the Red Fort. DD Entry No. 19A dated 22.12.2000 made at c
Police Station Kotwali supports this version of lady Constable
Harvir Kaur (PW-77), which suggests that she had flashed a
wireless message about some persons having fled towards the
Ring Road after resorting to firing inside the Red Fort. The
evidence of Head Constable Virender Kumar (PW-15) is also D
there to prove the report in this regard vide Exhibit PW-15/B. It
must be remembered that Police Control Room had received
the calls of similar nature at 9.47 pm and two calls at 9.50 pm
vide Exhibits PW-42/A, PW-95/A and PW-43/A, which support
the version of the prosecution about the incident. The evidence E
of Constable lndu Bala, PCR (PW-43) about having received
a telephone call from one Karan Mohan, the evidence of Col.
A. Mohan (PW-51) that he was informed by the Commanding
Officer, 7th Rajputana, Delhi that some civilians had entered
Red Fort and the evidence of Constable Harvir Kaur, PCR (PW-
77) that she received information from Major Manish Nagpal F
(PW-126) from telephone No. 3278234 about some persons
having fled, as also the evidence of Head Constable Harbans,
PCR (PW-95) that he had received a telephone call from Col.
Mohan {PW-51) by telephone No. 5693227 stating that his
Jawan posted at Red Fo.rt was attacked, supports the version G
that there was inCident of shoot out and it could not be merely
dismissed as an internal brawl. This is apart from the evidence
of other police witnesses like SHO Roop Lal (PW-234) who had
reached the spot almost immediately after receiving the
wireless message and who confirmed the presence of S.I. H
98 SUPREME COURT REPORTS [2011) 10 S.C.R.
A RajinderSingh (PW-137) and Capt. S.P. Patwardhan (PW-189)
on the spot. The senior officers of the police had also reached
the spot and their evidence only confirms the dastardly incident
of shoot out. There is enormous documentary evidence in
shape of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No.
B 73 B, Exhibit PW-152/B, Exhibit PW-152/F and DD No. 22A,
which confirms that such incident had happened. There is other
piece of voluminous documentary evidence about seizure of
blood sample (Exhibit PW-123/B), seizure from the spots
I
(Exhibit PW-122/B), seizure of blood stained clothes (Exhibit
C PW-114/A), Exhibit PW-123/A, Exhibit PW-122/A, seizure of
magazine, live cartridges and empties (Exhibit PW-189/C),
Exhibit PW-115/A to 37 (37 empty cartridges), Exhibit PW-115/
38 (1 live cartridge), seizure of rope and cap (Exhibit PW-183/
D), seizure of various articles from Red Fort (Exhibit PW-196/
D A) and Exhibits PW-230/A & 230/B etc. to suggest that the
incident as, suggested by prosecution, did take place. It is also
to be seen that the post mortem was conducted on the three
bodies by Shri K. L. Sharma (PW-187). This witness has
opined that all the deceased had bullet injuries by sophisticated
fire arms and the shots were filed atthem from a distant range.
E It is significant that the doctor was not cross-examined to the
effect that the injury could have been caused by any weapon
which was available with the Army and not with the AK 56 rifles.
We are. therefore, not at all impressed by the argument that
such incident was nothing but a white wash given by Army to
F hide the incident of internal brawl. We must reject the whole
argument as too ambitious. We, therefore, hold that the incident
of shoot out did take place in which three persons lost their
fives.
G 19. Ms. Jaiswal then argued that though the premises
were thoroughly searched as claimed by Sub. Ashok Kumar
(PW-115) he did not find a fired bullet. She relied on the
evidence of Hawaldar Dalbir Singh (PW-134) who also claimed
that the premises were being searched all through the night.
H Similarly, she referred to the evidence of S.I. Rajinder Singh·
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 99
DELHI [V.S. SIRPURKAR, J.]
(PW-137), Maj. D.K. Singh (PW-144), Capt. S.P. Patwardhan A
(PW-189), and S.I. Naresh Kumar (PW-217) and Inspector
Hawa Singh (PW-228). According to her, all these witnesses
had suggested that the search was going on practically all
through the night and that Capt. Patwardhan (PW-189) had
also ordered the search outside. The argument is clearly B
incorrect. Merely because all these witnesses have admitted
that there was search going on for the whole night, it does not
mean that the incident did not take place. We have already
pointed out that number of incriminating articles were found, the
most important of the same being the empties of the bullets c
fired by the intruders. It is very significant that the prosecution
has been able to connect the bullets with the arms seized by
them .
. 20. One of the two rifles was found near Vijay Ghat from
the bushes while other has been recovered at the instance of D
appellant on 26th December, 2000. The prosecution has
examined three witnesses who were the ballistic experts. They
were N.B. Bardhan (PW-202), A.Dey (PW-206), K.C. Varshney
(PW-211 ). N.B. Bardhan (P\iV-202) has specifically stated that
both the rifles were used in the sense that they were fired. A. E
Dey (PW-206) had the occasion to inspect the rifle recovered
from Batla House as Exhibit PW-206/B. The ballistic experts
report was proved by N.B. Bardhan (PW-202) as Exhibit 202/
A. He clearly opined that the empties found inside the Red Fort
had been fired from the rifles (Exhibit PW-125/1) and (Exhibit F
PW-62/1 ). He clearly deposed that he examined 39 sealed
parcels sent by SHO, Police Station Kotwali. Out of these
parcels, according to the witness, parcel No.34 was containing
AK 56 assault rifle so also parcel No.36 in same parcel, sub-
parcel No.20 contained another assault rifle. He further G
confirmed in para (iii) of his opinion that these were 7.62 mm
assault rifles and the cartridges contained in bearing mark C-
1 in parcel' No.3 which were marked as C-49, C-52,C-56,C-
58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm
assault rifle cartridge cases marked as C-72,C-74,C-75 to C- H
100 SUPREME COURT REPORTS [2011] 10 $.C.R.
A 80,C-82 to C-84 and C-86, C-89,C-91, C-94 to C-96, C-98,
C-102, C-106 to C-108 contained in parcel No.19A had been
fired from 7.62 mm AK assault rifle marked as W/1 which was
recovered from back side of Lal Quila on the disclosure
statement made by the appellant. He further opined in para (iv)
B of his opinion that the cartridge cases marked as C-2 contained
in parcel No.4, thirty four fired 7.62 mm assault rifle cartridge
cases marked as C-32 to C-48, C-50, C-51, C-53 to C-55, C-
57, C-59 to C-63 and C-65 to C-70 contained in parcel No.19,
as also sixteen 7.62 mm assault rifle cartridge cases marked
c as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93, C-
97, C-99, C-100, C-101, C-103 to C-105 contained in parcel
no.19A were fired from 7.62 mm assault rifle AK-56 marked
as W/2 rifle recovered from Vijay Ghat. ·The report of the
ballistic experts was proved as Exhibit PW-202/C. He duly
proved and identified the cartridges which were test fired in the
0
laboratory. He also proved and identified the rifles examined
by him and the magazines along with the other live cartridges
found in the same. There was hardly any cross-examination
worth the name of this witness and, therefore, it is clearly
established that the cartridges cases found inside the Red Fort
c
._ were fired from the two rifles which were found outside the Red
Fort. This witness had also examined 11 empties of the self-
loading rifles used by the army men firing towards intruders and
had clearly opined that those empties could not have been
loaded in AK-56 rifles examined by him. We must note that one
F of these rifles i.e. Exhibit PW-62/1 was recovered on the
discovery made by the appellant. We shall come to the merits
of that discovery in the latter part of our judgment. However, at
this stage, it is sufficient to note that the prosecution had
thoroughly proved the nexus between the cartridge cases which
G were found inside the Red Fort and the incident. This nexus is
extremely important as while the guns were found outside the
Red Fort the fire empties were found inside. This clearly
suggests that the incident of firing took place inside the Red
Fort while guns were abandoned by the intruders outside the
H Red Fort. This witness also examined the contents of parcel
MOHD. ARIF @ ASH FAQ v. STATE OF NCT OF 101
DELHI [V.S. SIRPURKAR, J.]
No.34, namely, one rifle two magazines, live cartridge, knife A
and a Bandolier. This was again an assault rifle of 7.62 mm
which we have already considered earlier. However, along with
the same, as per the discovery memorandum a bandolier
(Exhibit PW-202/3) was also found. The contents of the
Bandolier were in parcel No.35. It contained four hand B
grenades and four detonators they being Exhibit PW-50/1 to
4 and Exhibit PW-50/5 to 8. Very significantly four detonators
had a slip affixed with the help of a tag and it was written in
Urdu Khabardar. Grenade firing ke liye tyrar he. Safety pin sirf
hamle kye waqt nikale.(beware grenade is ready for firing. Pin C
should be taken out only when it is to be thrown). The existence
of these bandoliers and the grenades and their recovery goes
a long way to prove that the theory propounded by the defence
that the incident never took place inside the Red Fort at the
instance of the intruders and it was an interrial affair of the Army D
men inside has to be rejected. In order to complete the
narration, we must also refer to the evidence of Shri A. Dey
who had· examined the rifle found at Batla House during the
encounter in which one Abu Shamal was killed. That recovery
is not seriously disputed by Ms. Jaiswal.
E
21. We have the evidence of Subedar Ashok Kumar (PW-
115) about the recovery of 37 empties cartridges and one live
cartridge from the Red Fort so also the evidence of Hawaldar
Ramesh Kakre (PW-116) about the empty cartridges being
found near sentry post where Abudullah Thakur was killed. One F
live cartridge also was recovered from there. He further
deposed about the two empty cartridges found near M.T. Park
where Uma Shankar was killed. He deposed that these
empties were found near training store while seven empties
were found Jlear museum and the same was handed over to G
Subedar Ashok Kumar (PW-115). Similar is the evidence of
S.P. Patwardhan (PW-189) about the place from where all this
spent ammunition was recovered. SHO Roop Lal (PW-234)
and Naik Suresh Kumar (PW-122) deposed about the places
wherefrom the cartridge cases and the magazines were found H
102 SUPREME COURT REPORTS [2011] 10 S.C.R.
A from inside the Red Fort. All this supports the prosecution
theory that the ghastly incident of firing did take place at the
instance of some outsiders inside the Red Fort.
22. This takes us to another contention of Ms. Jaiswal that
in fact nothing was found behind the Red Fort on the night of
8
23.12.2000. The learned Solicitor General, Shri Subramanium
placed a very heavy reliance on the recoveries made in the
same night or early morning of next day i.e. 23.12.2000. The
recoveries of that day are extremely important. Ms. Jaiswal
invited our attention in this behalf to the evidence of S.I. Sanjay
C Kumar (PW-183) who claimed that in the morning of 23.12.2000
during the search of the backside of the wall of the Red Fort
abutting to the ring road he found some currency worth Rs.1415/
- and a slip contained in the polythene bag. It was a short slip
on which a mobile number was written being 9811278510.
D According to witness S.I. Sanjay Kumar (PW-183), SHO Roop
Lal (PW-234) was called at the place and it was SHO Roop
Lal (PW-234) who pasted the telephone number slip on a
separate paper. There was currency and both these articles
were seized by the police. This polythene bag was· a
E transparent bag. Besides the evidence of PW-183, SI Sanjay
Kumar, we have the evidence of S.I. Naresh Kumar (PW-217)
and SHO Roop Lal (PW-234). The amount was separately kept
vide Exhibit 183/A while the slip was identified as Exhibit PW-
183/C. We have seen the photographs of the polythene bag
F and the currency as also the slip which were also proved. Ms.
Jaiswal attacked this recovery and the seizure thereof
vehemently. According to her this was a figment of imagination
by the investigating agency and there was no question of any
such recovery much less in the wee hours of 23.12.2000 at
G about 5-6 a.m. She pointed out that the two witnesses S.I.
Sanjay Kumar (PW-183) and S.I. Naresh Kumar (PW-217)
were clearly lying. We have examined the evidence of all the
three witnesses particularly in this behalf and we find the
evidence to be thoroughly reliable. Ms. Jaiswal could not bring
H to our notice any material in the cross examination of these
MOHD. ARIF @ ASH FAQ v. STATE OF NCT OF 103
DELHI [V.S. SIRPURKAR, J.]
witnesses so as to render the evidence uncreditworthy. Some A
efforts· were also made by relying on the evidence of
S.K.Chadha (PW-125) that though he was a member of the
team, he reached the spot from where the recovery was made
at 1O a.m. on 23.12.2000. We fail to follow the significance of
this admission. It is not as if all the officers must remain at one B
and the same place if they are the members of a particular
investigation team. It may be that S. K. Chadha might have
reached the spot at 10 O'clock but that does not mean recovery
team consisting of other members did not effect recovery of the
polythene bag containing currency and the slip. Ms. Jaiswal also c
urged that the premises were being searched thoroughly with
the help of dog squad and the search light and that it was not
possible that the search team would miss to notice the
polythene bag and the currency and the slip lying in it. The
argument is only mentioned for being rejected. What the D
investigating team would be looking for are not the polythene
bag and the small paper but the weapons and the men who
handled those weapons. A small transparent polythene bag
could have easily been missed earlier or may not have attracted
the attention of the investigating agency. We do not find anything
to suspect the claim that the recovery was made at about 5-6 E
a.m. We must note that this was the longest night when the sun
rise would also be late. Under such circumstances, in that dark
night if the investigating team, after the microscopic search,
took a few ours in recovering the small apparently insignificant
polythene bag, it is not unnatural. They could not be expected F
to find polythene bag instantaneously or immediately. Much
time must have been taken in first searching inside the Red
Fort. Therefore, if the polythene bag was found at about 5-6
a.m. as per the claim of the prosecution agency, and not earlier,
there is nothing uncreditworthy in the claim. We are, therefore, G
convinced that the polythene bag and the slip mentioning the
cell phone number were actually found at the spot. Ms. Jaiswal
tried to find some chinks in the armour by suggesting that S.I.
Sanjay Kumar's statement was contrary to the statement of S.I.
Naresh Kumar (PW-217). We do not find any discrepancy H
104 SUPREME COURT REPORTS [2011) 10 S.C.R.
A between the two statements. Ms. Jaiswal also referred to the
evidence of Inspector Mohan Chand Sharma (PW-229) who
stated that recovery was made by him at about 9 a.m. in the
morning. What the witness meant was that it was he who came
in the possession of the items at 9 a.m. There is nothing very
B significant in that assertion. The evidence of SHO Roop Lal
(PW-234) was also referred to who claimed that after the
polythene· bag was produced before him which contained
currency and paper slip, he sealed currency in the same
polythene with the help of cloth and sealed under parcel given
c Exhibit No.24. There is nothing to dis-believe this claim after
all SHO Roop Lal (PW-234) was the senior most investigating
officer and there is nothing insignificant if S.I. Sanjay Kumar
(PW-183) finding the polythene bag handed over the same to
SHO Roop Lal (PW-234). A specific step has been taken by
S.I. Sanjay Kumar (PW-183) by getting the said bag
0
photographed. We have seen the photographs also. It is true
that no photograph was taken of the polythene bag containing
currency note and the slip mentioning the telephone number.
They appear to be in separate photographs and it is quite
understandable as immediately after the finding of the
E polythene bag it must have been handled by S.I. Sanjay Kumar
(PW-183). It is only after finding the slip and the telephone
number mentioned thereon that by way of abundant caution the
photographs were taken. Anxiety was to show the slip and the
fact that there was a telephone number written on the slip. Ms.
F Jaiswal then argued that Hawa Singh (PW-228) had stated that
he was told about the slip only in the evening though he joined
the investigation at 10.30 a.m. We do not find anything
substantial in this argument. Ms. Jaiswal further argued that
there is contradiction in S.I. Sanjay Kumar (PW-183) and
G Inspector Mohan Chand Sharma's (PW-229) statement as to
who had recovered the currency and slip and that there was
material contradiction in the evidence of S.I. Sanjay Kumar (PW-
183), S.K. Chadha (PW-125) and Inspector Mohan Chand
Sharma (PW-229). Further, she tried to say that there was
H contradiction in the statement of S.I. Sanjay Kumar, SHO Roop
MOHD. ARIF @ ASH FAQ v. STATE OF NCT OF 105
DELHI [V.S. SIRPURKAR, J.]
Lal (PW-234) and S.I. Naresh Kumar (PW-217) on the question A
as to whether currency and slip was taken inside the Red Fort
to be handed over to SHO Roop Lal (PW-234) or whether he
was called on the spot of recovery. She also raised objections
about the photographs that they were not taken in 'as is where
is position'. We have already applied our mind to this aspect B
and we are of the clear opinion that the objections raised by
the defence are absolutely insignificant. What is material is the
polythene bag being found. The police could not have created
this polythene bag containing currency and slip with a number
mentioned on it. There was no question of any false evidence c
being created at that point of time which was hardly a few hours
after the shootout. It is true that the photographs of the polythene
bag are not and could be on 'as is where is basis'. We have
already given the reason thereof. We have no doubts in our
mind and we confirm the finding of the trial Court and the D
appellate Court that the said polythene bag containing the
currency notes and the slip on which the cell phone number was
mentioned, was actually found on the spot which spot was
abutting the backside wall of the Red Fort. It has to be borne
in mind that a major incident of shootout had occurred wherein E
three lives were lost. The attack was on the Red Fort which has
emotional and historical importance in the Indian minds. Large
investigation team was busy investigating the whole affair and,
therefore, the police could not have produced out of the thin air
a small polythene bag containing currency and the slip. The
spot where it was found is well described and was on the F
escape route of the intruders. That wall from inside the Red Fort
has hardly any height though it is of about 15 to 20 feet from
the ground on the other side. We have seen the proved
photograph which suggests that from that spot one can easily
land on the extended pipe and from that pipe to the small G
platform and from there to the ground. The polythene bagwas
found near this spot. Therefore, we accept the finding by the
trial Court and the appellate Court that this polythene bag must
have slipped from a person who scaled down to the ground.
At the beginning of the debate it was made out as if the said H
106 SUPREME COURT REPORTS [2011) 10 S.C.R.
A wall was insurmountable and that nobody could have jumped
from the height of about 50-60 feet. Further on the close look
at the evidence, the photographs the hollowness of the claim
of the defence was writ large.
8 23. There is one more significant circumstance to suggest
that the polythene bag must have been found where it was
claimed to have been found by the investigating agency i.e. the
finding of AK-56 rifle from a nearby spot in the bushes. We will
consider the merits of that discovery which was at the instance
C of the appellant in the latter part of our judgment. Suffice it to
say at this stage that the polythene bag was found in the
reasonable proximity of the spot from where AK-56 rifle was
recovered.
24. Barely within 4-5 hours of the finding out the chit and
D the currency notes, the investigating agency found one AK-56
rifle with seven live cartridges from a place near Vijay Ghat in
the Ring Road behind the Red Fort. A DD entry to that effect
vide Exhibit PW-81/A was made. There is evidence in .the
shape of Exhibit PW 78A proved by PW-78 Head Constable
E Narender Singh which is a Police Control Room Form. The
prosecution also examined Head Constable Upender- Singh
(PW-89). The evidence of Head Constable Satbir Singh (PW-
81) proves the information having been given to the PCR. There
was a sketch of recovery Naksha Mauka Baramadgi, seizure
F of rifle, magazine and the live cartridges from Vijay Ghat is
evidenced in Exhibit PW-62/B and also Exhibit 84/XIV. While
dealing with the evidence of the ballistic expert we have
already shown the connection between the empty cartridges
and this rifle. This rifle was marked as W/1 in the ballistic
G experts report and was identified as Exhibit PW-125/1. There
is nothing to belie this discovery which is well supported by the
evidence of Head Constable Narender Singh (PW-78), Head
Constable Satbir Singh (PW-81) and Head Constable Upender
Singh (PW-89). In fact Head Constable Upender Singh was the
one who had found the said rifle. Other relevant witness who
H
MOHD. ARIF @ ASH FAQ v. STATE OF NCT OF 107
. DELHI [V.S. SIRPURKAR, J.]
·· · C()rroborated this version is Constable Ranbir Singh (PW-35) A
who had made the DD entry and had received the message
from· police Control Room. The other witnesses are SI Ram
Chander (PW-62) who presided over the recovery and SHO
Roop Lal (PW-234) who was also present at the time of
recovery and saw the rifle. The other witnesses, namely, SI B 1
Sanjay Kumar (PW-183) and SI Naresh Kumar (PW-217) have
provided the corroborating evidence to this recovery. The whole
recovery is proved by the prosecution.
25. However, even before that the investigating agency
started investigation about the cell number which was found C
written in the slip which was found in the morning at about 5-6
a.m. this cell number was to provide a ray of light to the
investigating agency which had no clue whatsoever· till then
about the perpetrators of the crime. Ultimately, the investigating
agency on the basis of that number being 9811278510 not only D
unearthed the conspiracy but also reached the main players
including the present appellant.
26. The investigation suggests that the said mobile number
slip was assigned to Inspector Mohan Chand Sharma (PW- E
229). This was a mobile number on the basis of the cash card.
At the relevant point of time, the cash card implied a SIM card,
a SIM card loaded with prepaid value and such SIM card were
readily available in the open market. There was no necessity
of registering with the service provide for obtaining a mobile
F
connection through cash card. All that was required was
activation by the service provider without which the cash card
or the SIM card as the case may be could not be used.
27. It has come in the evidence that the active mobile
phone has two components i.e. the mobile instrument and the G
SIM card. Every mobile instrument has a unique identification
number, namely, Instrument Manufactured Equipment Identity,
for short, IMEI number. Such SIM card could be provided by
the service providers either with cash card or post paid card .
to the subscriber and once this SIM card is activated the H
108 SUPREME COURT REPORTS [2011] 10 S.C.R.
A number is generated which is commonly known as mobile
number. The mobile service is operated through a main server
computer called mobile switching centre which handles and
records each and every movement of an active mobile phone
like day and time of the call, duration of the call, calling and the
B called number, location of the subscriber during active call and
the unique IMEI number of the instrument used by the subscriber
during an active call. This mobile switching centre manages all
this through various sub-systems or sub-stations and finally with
the help of telephone towers. These tpwers are actually Base
•
C Trans-receiver Stations also known as BTS. Such BTS covers
a set of cells each of them identified by a unique cell ID. A
mobile continuously selects a cell and exchanges data and
signaling traffic with the corresponding BTC. Therefore, through
a cell ID the location of the active mobile instrument can be
approximated.
D
28. As per the evidence of Inspector Mohan Chand
Sharma (PW-229) he collected the call details of the said
mobile number which was received in a computer installed in
his office at Lodhi Road. He found that mobile phone number
E 9811278510 was constantly used from Zakir Nagar and at that
time the IMEI number of the cell phone instrument used was
445199440940240. It was found .that the said number was also
used for making calls to Pakistan. However, from 11.12.2000,
the IMEI number of the mobile phone No.9811278510 was
F changed to IMEI No.449173405451240. It transpired from the
evidence that this IMEI number that the mobile phone number
9811278510 with the changed IMEI number had also made
calls to landlines which were discovered to be belonging to
BBC, Srinagar and BBC, Delhi. These calls were made almost
G immediately after the incident of shootout. This number was also
used for making calls to Pakistan and pager number at Srinagar
01949696 and 0116315904. The latter number was found to
be in the name of Mohd. Danish Khan at 18C, Gaffur Nagar
i.e. the computer centre run by the accused appellant. It was .
also found that from this number calls were made to
H
MOHD. ARIF @ ASH FAQ v. STATE OF NCT OF 109
DELHI [V.S. SIRPURKAR, J.]
0113969561 which was found to have been installed at the A
shop of one Sher Zaman who was allegedly an absconding
accused and the Hawala operator. The analysis of call details
of 9811278510 suggested that the said mobile number was
used in two mobile instruments having the aforementioned IMEI
numbers. This was done in case of cell number 9811278510 B
with IMEI number 445199440940240 only between 26.10.200
to 14.11.2000 and recovered instrument having IMEI
No.4491731405451240 between 11.12.2000 to 23.12.2000.
While scanning earlier IMEI No.445199440940240, it was
found that one other mobile number 9811242154 was found c
to have been used in the said instrument. This instrument used
mobile number 9811242154 between 22. 7.2000 to 8.11.2000.
From this, Shri Subramanium, learned Solicitor General urged
that there were two mobile numbers, namely, 9811278510 and
9811242154 which were used and the two IMEI numbers
0
namely 445199440940240 and 449173405451240. A pattern
showed the use of the third number which was 0116315904,
the number of computer centre. Shri Subramanium learned
Solicitor General submitted the following data for our perusal:-
"011-6315904- Computer Center E
Found connected to Mobile No.9811278510:-
(1) 14.12.2000 at 125435 hrs
Found connected to Mobile No.9811242154:- F
(1) 31.10.2000 at 211943 hrs
(2) 08.11.2000 at 082418 hrs
. (3) 10.11.2000 at 144727 hrs G
(4) 19.11.2000 at 163328 hrs
Found connected to Mobile No.9811242154 :-
(1) 09.09.2000 at 113619 hrs H
110 SUPREME COURT REPORTS [2011] 10 S.C.R
A (2) 08.09.2000 at 113753 hrs
· (3) 02.10.2000 at 103130 hrs."
Learned Solicitor General provided the data regarding the
telephone connection made by above number with the
B telephone connection of one Attruddin who was a proclaimed
offender in Kashmir.
29. It is also apparent, as argued by the learned Solicitor
General that number 9811242154 was constantly in touch with
c two numbers, namely, 0116315904 which was installed at 18C
Gaffur Nagar computer centre and 011 2720223 installed in the
name of Farzana, sister of Rehmana, the wife of accused at
308A, Janta Flats, Ghazipur. This number9811242154 had thus
a definite connection with mobile No.9811278510 and the two
D mstruments bearing IMEI numbers mentioned earlier with each
other. Therefore, these two points, namely, the computer centre
and the flat at 308A, Janta Flat, Ghazipur were kept under
observation. Relying on the evidence of lnsp.ector Mohan
Chand Sharma (PW-229), learned ~olicitor General argued
E that calls made from No.9811242154 were between Zakir
Nagar and Ghazipur. It was found that the location of the phone
used to be at Ghazipur when the calls were made to that
number from Zakir Nagar and the location of phone i.ised to be
at Zakir nagar when the calls were made from ~azipur.
F Significantly enough, the 'Knowledge Plus' computer centre
remained closed for two days after the incident at Red Fort.
The investigating agency came to know about the ownership
of the 'Knowledge Plus' computer center and it was established
that the accused Mohd. Arif@ Ashfaq who was a resident of
Ghazipur, owned this centre. All this evidence by Inspector
G Mohan Chand Sharma (PW-229) w~nt unchallenged. The other
witness who had produced the whole record was Rajiv Pandit
(PW-98) who proved the call record and the report to the
queries made to him by the investigating officer. Exhibit PW-
98/A is the information in respect of the mobile number
H 9811278510 which was active from 26.10.2000 to 23.12.2000.
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 111
DELHI [V.S. SIRPURKAR, J.]
While Exhibit PW-198/D is the information stating that IMEI A
number 449173405451240 was used by mobile number
9811278510 and that IMEI number 445199440940240 was
used by both mobile numbers, namely, 9811278510 and
9811242154. There is hardly any cross-examination of this
: witness Rajiv Pandit (PW-198) to dis-believe his version. All B
this goes to suggest the definite connection between two IMEI
numbers and the two mobile numbers named above. It is
needless to mention that this analysis painstakingly made by
Inspector Mohan Chand Sharma (PW-229) led the
investigating team to zero on the accused appellant in the night c
of 25.12.2000.
30. It has come in the evidence of SI Omwati (PW-68) that
she was working as duty officer at police station special cell
on 25.12.2000 and on that day at about9.05 a.m. Inspector
Mohan Chand Sharma (PW-229) had recorded his departure D
in connection with the case No.688 of 2000 along with some
other staff. It has also come in the evidence that on 25.12.2000
at about 9.45 p.m. a DD entry was made at the police station
special cell Ashok Vihar that Inspector Mohan Chand Sharma
(PW-229) informed on telephone that a suspect by name of E
Ashfaq Ahmed was about to come at the house number 308A,
DOA flats, Ghazipur and made a request to send some officers.
There is another entry bearing a DD No.1 O to the effect that
lnspectorVed Prakash (PW-173) along with R.S. Bhasin (PW-
168), SI Zile Singh (PW-148), SI Upender Singh (PW-89), SI F
Manoj Dixit, WSI Jayshree and S.I. Omwati (PW-68),
Constable Mahipal Singh and Head Constable Rameshwar
(PW-166) having left the police special cell Ashok Vihar in
pursuance of the message sent by Mohan Chand Sharma
(PW-229). This has been proved in the evidence of Inspector G
Ved Prakash (PW-173). It has also come in the evidence of
Mohan Chand Sharma (PW-229) that he along with his team .
was at Ghazipur on 25.12.2000 while SI Daya Sagar was
deputed at the knowledge plus computer centre along with the
staff. He was informed at about 9.40 p.m. on his mobile phone H
112 SUPREME COURT REPORTS [2011] 10 S.C.R.
A that Mohd. Arif @ Ashfaq was seen at Batla House and may
have left for Ghazipur. He also informed ACP Rajbir about it.
ACP Rajbir Singh, therefore, fixed 11 p.m. as the time for
meeting him at the red light where he reached along with his
staff. This has been corroborated by S.I. Omwati (PW-68) who
B speaks about DD entry No.10 recorded at special cell at about
10.15 to the effect that certain special officers had left under
the supervision of ACP Rajbir Singh. As per the evidence of
Inspector Mohan Chand Sharma (PW-229) that a raid was
conducted by them at 11.15 p.m. at flat No.308A, Ghazipur and
c at that time three ladies were present. There it was decided
that Ved Prakash would go inside the flat and the remaining
staff would keep a watch from outside. This has been
corroborated by Inspector Ved Prakash (PW-173). It was at
about 12.45 a.m. that Mohd. Arif@ Ashfaq (appellant herein)
D came to the flat of Ghazipur and knocked at the gate where he
was overpowered by the staff present. At that time one pistol
7.63 mouser and six live cartridges were recovered from his
possession. He did not have any licence for this pistol. A memo
of the seizure is Exhibit PW-148/B p.·oved by sub-Inspector Zlle
E Singh (PW-148). The entry in the Malkhana register is 32/XI.
lnspctor Ved Prakash prepared a rukka which is Exhibit (PW-
173/A) and a DD entry bearing number 9A was made at 2.35
a.m. on 26.12.2000 at police station Kalyan Puri. A separate
FIR number 419/2000 under Section 25, Arms Act was also
c registered at police station Kalyan Puri, Delhi. The FIR is to be
found vide Exhibit PW-1368. The time of occurrence shown in
the first FIR is 12.45 a.m. on 26.12.2000. Thls pistol was
identified by all the recovery witnesses and experts in the Court
while its capability of being fired has been proved by Shri K.C.
,... Varshney (PW-211) the FSL expert. The pistol is Exhibit PW-
-:J 148/1. At the time of its recovery, the pistol had five cartridges
in the magazines and one cartridge in the chamber of the
pistol. All this has been deposed by SI Zile Singh (PW-148). It
was this witness Zile Singh (PW-148) who identified appellant
in the Court as also proved the recovery of the pistol from his
:i possession. It was at this time after his apprehension that the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 113
DELHI [V.S. SIRPURKAR, J.]
accused disclosed that his associate Abu Shamal @ Faizal A
was staying at his hide out at G-73, First Floor, Batla House,
Okhala. This has come in the evidence of Inspector Mohan
Chand Sharma (PW-229). We have absolutely no reason to
dis-believe this evidence of apprehension of the accused by
the police team which is also supported by documentary B
evidence. We have also no doubt that the apprehension of the
accused was possible only because of the scientific
investigation done by PW-229, Inspector MC Sharma.
31. We now consider the argument of the appellant that C
on the basis of the recovery of the piece of paper having
Mobile phone No. 9811278510, the police did not actually
reach the appellant as was their claim. It was argued by Ms;
Jaiswal, learned counsel appearing on behalf of the appellant
that Inspector S.K. Sand (PW-230) himself had claimed in his D
Examination-in-Chief that he had deputed someone to contact
the mobile phone company ESSAR for the call details of the
said mobile number on 13.2.2001 and obtained the same Vide
Exhibit PW-198/B-1 to 3. On this basis, the learned counsel
claimed that the details of the phone conversation on this
number as also on other mobile number 9811242154 could E
not have been known nor could their connection with telephone
number 2720223 at the house of the appellant in Ghazipur or
telephone number 6315904 at the Computer Centre at Gaffur
Nagar be established. In this behalf, it was claimed that this
evidence is directly counter to the evidence of Inspector Mohan F
Chand Sharma (PW-229) who claimed the knowledge about
interconnection between 23rd to 25th December, 2001. The
learned Solicitor General, however, argued that the evidence
of Inspector Mohan Chand Sharma (PW-229) co1:1ld not be
faulted as he claimed to have immediately collected all the call G
details of the said two mobile phone numbers from the
computer installed in their office at Lodhi Road. It was on the
basis of the information received in computer regarding mobile
No. 9811278510 that he established its connection with mobile
. No. 9811242154 on the basis of IMEI number. The claim of H
114 SUPREME COURT REPORTS [2011) 10 S.C.R.
A Inspector Mohan Chand Sharma (PW-229) that he had
collected the information from his computer earlier to
25.12.2010 was not controverted nor do we find any cross-
examination to that effect. It is true that Inspector S.K. Sand (PW-
230), the Investigating Officer, had sought the information on
s 13.2.2001, but that does not mean that Inspector Mohan Chand
Sharma (PW-229) did not have the information earlier. There
was no other way otherwise to apprehend the appellant. It may
be that the Investigating Officer decided to obtain the details
in writing seeking official information from the original company
c and that is why his seeking that information on 13.2.2001 does
not affect the prosecution case. In our view, the contention
raised by the learned Solicitor General is correct and has to
be accepted. It is to be noted that the defence has not refuted
the claim of the prosecution that telephone No. 2720223 which
was in the name of appellant's Sister-in-law Farzana Farukhi,
0
was installed at Flat No. 308-A, Ghazipur, where he was
· residing alongwith his wife Rehmana Yusuf Farukhi and his
mother-in-law Qamar Farukhi (examined as DW-1). It is also
not the claim of the defence that telephone No. 6315904 was
not installed at the computer centre 'Knowledge Plus' which the
E · appellant was running alongwith other person Faizal Mohd.
Khan (PW056). We, therefore, reject the argument of Ms.
Jaiswal, learned counsel that on the basis of the chit, the
investigating agency could not and did not reach the appellant
on the night of 25.12.2000.
F
32. The other argument raised by Ms. Jaiswal is that in fact
there was no evidence to show that the appellant in fact did
have any mobile phone with him when he was apprehended.
Secondly, it was argued that it was not proved that the appellant
3 ever owned a mobile phone at all. The learned counsel pointed
out that when the appellant was apprehended, though he was
searched, all that the raiding party recovered was a pistol and
that there is no mention of the recovery of Motorola mobile
phone bearing number 9811278510. The learned counsel was
-I at pains to point out that it was during his second search after
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 115
DELHI [V.S. SIRPURKAR, J.]
about six hours that the mobile phone was shown fo have been A
recovered. This, according to the learned counsel, is nothing·
but a concoction. Ms. Jaiswal also pointed out that there was
a substantial delay in formally arresting the appellant and also
recovering other articles from his person.
B
33. We shall consider the second contention first. In this
behalf, the learned Solicitor General relied on the evidence of
Faizal Mohd. Khan (PW-56), who was also a tenant in the
house of Nain Singh (PW-20). It has come in his evidence that
the appellant was also residing as a tenant for some time
before this incident took place. He has also pointed out that C
one Adam Malik (PW-31) used to reside in the house of Nain
Singh (PW-20) and it was he who had brought the appellant
with him in May, 2000 and got him one room in that house. As
per the evidence of Faizal Mohd. Khan (PW-56), it was Azam
Ma~k (PW-31) who had introduced him to the appellant. He was D
the one alongwith whom the appellant had then opened a
computer centre by the name of 'Knowledge Plus' at 18-C,
Gaffur Nagar and for opening that centre, he had invested
Rs. 70,000/- while the appellant had invested 1, 70,000/- for
purchasing computer from one Khalid Bhai. This part of the E
evidence is also admitted by the appellant in his statement
under Section 313 Cr.P.C. He, however, claimed in that
statement that he had paid lesser amount. Faizal Mohd. Khan
(PW-56) needed a telephone for their computer centre but
since they did not have ration card, he (PW-56) spoke to his F
cousin Danish Mohd. Khan and requested him to get one
telephone installed at their computer centre with the help of his
identity card and that is how· Danish Mohd. Khan had got
installed a telephone in his own name at the 'Knowledge Plus'
' computer centre. The learned Solicitor General pointed out that G
this evidence has remained unchallenged. It is further argued
that the evidence of Faizal Mohd. Khan (PW-56) establishes
that the appellant had a mobile phone also. It is significant that
admittedly, this witness was a partner of the appellant in the
. computer centre. The claim of this witness that the appellant H
116 SUPREME COURT REPORTS [2011) 10 S.C.R.
A had a mobile phone, was not even challenged during his
examination. From this the learned Solicitor General argued
and, in our opinion, rightly, that the appellant used to have a
mobile phone with him. The learned Solicitor General further
pointed out that this piece of evidence is then corroborated by
B the evidence of Aamir lrfan Mansoori (PW-37), who was also
a tenant with the appellant in the house of Nain Singh (PW-20).
He had also deposed that the appellant used to have a mobile
phone. The Solicitor General pointed out that there was no
challenge to the evidence of Aamir lrfan Mansoori (PW-37),
c particularly, about his assertion that the appellant did have a
mobile phone. From this, the learned Solicitor General argued
that it is an established position that in the past, the appellant
used to have a mobile phone. Similar is the evidence of Rashid
Ali (PW-232), who was also a resident in the house of Nain
Singh (PW-20). It is significant to note that this witness claimed
0
that on 8.12.2000, he was taken by the appellant for an lftar
party in the evening. However, there the appellant got married
to Rehmana on 8.12.2000 in the evening. This shows the
proximity of the witness. He further deposed that the appellant
had a mobile phone. Even this witness was not cross-examined
E regarding the availability of the mobile phone with the appellant.
We have no reason to disbelieve the above three witnesses
and, theref~re, we hold that it was established by the
prosecution that the appellant used to have a mobile phone.
F 34. Once this position is clear, then it has to be seen as
to why the mobile phone was not taken in possession by the
raiding party when they actually apprehended the appellant and
whether at that time he had the mobile phone at all. The learned
Solicitor General argued that the raiding party had gone to Flat
G No. 308-A, Ghazipur to nab a suspected terrorist. This was on
the basis of the information gathered by Inspector Mohan
Chand Sharma (PW-229). The learned Solicitor General
argued that the raiding party had to ensure that once they
nabbed the terrorist, he should be disarmed first. This was
H necessary for the safety of the public at large and, therefore,
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 117
DELHI [V.S. SIRPURKAR, J.]
when the raiding party found and nabbed the appellant, they first A
removed his fire arm and started digging further information
about any other terrorist who was the partner of the appellant
and, therefore, when the appellant disclosed about the other
hide-out at G-73, Muradi Road, Batla House, in order to avoid
any further loss of life and harm to the general public and also B
for preventing the said suspect from fleeing, the raiding party
took the appellant to the Batla House almost immediately. The
learned Solicitor General, therefore, argued that considering
the seriousness of the situation and further considering the
element of very little time at the disposal of the raiding party, c
the appellant was immediately taken to Batla House, where a
full fledged encounter took place resulting in death of Abu
Shamal, another terrorist as also in recovery of lethal weapons
like an AK-47 rifle and hand grenades. The learned Solicitor
General explained tile so-called delay caused in recovery of the D
mobile phone from the appellant. He also argued that the
expediency of the matter required stopping these terrorists from
inflicting further harm to the innocent society and, therefore,
investigating agency had to move with the break-neck speed
which they actually did instead of wasting their time in writing E
the Panchnamas of discovery and recovery etc. The learned
Solicitor General further argued that the very fact that there was
an encounter in Batla House, the location of which was known
only to the appellant, establishes the necessity for quick reaction
on the part of the investigating agency. In our opinion, this
explanation is quite satisfactory to reject the argument raised F
by learned defence counsel. We have, therefore, no hesitation
to hold that after the appellant was apprehended on the night
of 25.12.2000, the investigating agency recovered not only the
pistol, but a mobile phone bearing number 981127851 Owhich
was with the appellant. G
35. Ms. Jaiswal also argued that the investigating agency
had seized only the mobile instrument bearing No.981127851 O
but not the SIM card and that was an extremely suspicious
circumstance. It is to be noted in this behalf that the instrument H
118 SUPREME COURT REPORTS [2011] 10 S.C.R.
A was seized in the morning of 26.12.2000. The analysis of the
telephone calls shows that the above mentioned number did
not work after 16.50 hours on 23.12.2000. Thus this number
was inactive on 24th and 25th December. Ms. Jaiswal argued
that the phone might have been sold or at least would have
B changed hands and did not directly connect the appellant with
the call made to the BBC correspondent immediately after the
attack. In this behalf, learned Solicitor General relied on the
evidence of Rajiv Pandit (PW-198). He pointed out that the
record regarding the SIM No 0006680375 did not exist.
c Learned Solicitor General further argued that the letter dated
20.2.2001 of the police Exhibit PW-114/XV clearly showed that
the said SIM was activated and an application in that behalf·
also made before the Court to un-seal the case property so as
to examine whether the SIM card number was correctly noted
in the seizure memo Exhibit PW-59/XIV or not. It has to be seen
0
that the number of cash card and the one found on the SIM vide
Exhibit PW-62/XIV were the same. The learned Solicitor
General, therefore, argued that the SIM card found in the
telephone was not activated and, therefore, there was no record
E available. However, according to the Solicitor General, it has
been proved that the instrument number 4491713405451240
was on the cell phone recovered from the appellant. In that
behalf, reliance was placed on the evidence of S.I. Harender
Singh (PW-194), SI Zile Singh (PW-148) and Inspector Mohan
Chand Sharma (PW-229). From this, according to the learned
F Solicitor General, the prosecution had established that but for
the mobile number which was collected on the basis of the chit,
it was not possible to apprehend the appellant at all. He further
argued that the very same instrument which has been
recovered from the appellant was used for calling BBC
G correspondent immediately after the attack and it was also
argued that the location of the instrument at that time was in
the vicinity of Red Fort. There is considerable force in the
submission made by the learned Solicitor General. The
depositions of the prosecution witnesses mentioned above, in
H our opinion, leave no doubt whatsoever in our minds that mobile
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 119
DELHI [V.S. SIRPURKAR, J.]
number 9811278510 was used in the instrument having IMEI A
No.449173405451240 immediately after the attack.
36. This takes us to the telephonic conversation in which
the two aforementioned cell phones with two IMEI numbers
were used which create a complete link between the appellant B
and the crime. In this behalf the first witness is Altaf Hussain
(PW-39) who was the BBC correspondent based in Srinagar
and who claimed that sometimes the militant organizations
used to give him information claiming responsibility of any
terrorist acts. On 22.12.2000 he had received a call on his land C
line No.2452918. He deposed that the caller told him that the
incident inside the Red Fort had been carried out by them and
claimed in vernacular 'dodaane daal diye hain'. The caller also
claimed himself to be belonging to Lashkar e Toiba. When he
asked as to what it meant by Do daane daal diye hain, he was
told by the caller that it was a Fidayeen attack and that they D
had attacked Army personnel. On this, the witness told the caller
to contact Delhi BBC office and also gave the telephone
number of BBC, Delhi to him. The wife of this witness Ms.
Naznin Bandey (PW-40) also deposed that Mr. Altaf Hussain
was her husband and the aforementioned telephone number E
2452918 was in her name and the same was being used by
her husband also. This call was made almost immediately after
the attack which took place at about 9.25 p.m. His further
evidence is that one Ayanjit Singh (PW-41) was a BBC
correspondent in Delhi. Ayanjit Singh (PW-41) was having a F
telephone number 011 3355751 on which he received a
telephone call between 9-9:30 p.m. and someone claiming to
be belonging to Lashkar-e-Toiba told him that they had attacked
the Red Fort. When the witness asked as to from where he was
speaking, the witness was told by the caller that he was calling G
from inside the Red Fort. He also told that they had killed two
persons. The caller refused to identify himself. This call
remained for 2-3 minutes. Shri Satish Jacob (PW-150)
corroborated this version of Ayanjit Singh (PW-41) to the effect
that on 22.12.2000 about 9 p.m. Ayanjit Singh who was a Desk H
120 SUPREME COURT REPORTS [2011) 10 S.C.R.
A Editor in the Delhi office had received relevant call and had
informed his colleagues also. He also confirmed that Altaf
Hussain (PW-39) was the BBC correspondent in Srinagar.
These call records were searched by the investigating agency
and were duly proved by the prosecution. It has already come
B in the earlier part of the judgment that it was on 13.2.2001 that
request for supply of information regarding mobile number
9811278510 was made vide letter Exhibit PW-230/K. By
another letter Exhibit PW-230/N dated 27.1.2001, General
Manager, MTNL was requested to give details of the
c subscribers of the telephone No. 011 3355751 which was the
number of BBC Delhi, telephone No. 2720223 belonging to
Farzana Faruqui and installed at Ghazipur at the residence of
appellant and telephone No.6315904 belonging to Danish
Mohd. Khan which was fixed at computer centre. The
D prosecution proved that letter and the records through the
witnesses. It has come in the evidence that on 14.2.2001, the
call details of 9811278510 were furnished along with cell ID list
by way of letter Exhibit PW-198/E and those call details were
also duly proved vide Exhibit PW-198/B1-3. A further letter
E dated 20.2.2001 was proved by the prosecution to have been
written to the General Manager, ESSAR cell phone for the
information in respect of the aforesaid mobile instrument
bearing IMEI No.445199440940240 and 44917340545120. In
this letter, it was specifically asked as to against which mobile
number the speed card No.0006680375 was activated. Rajiv
F Pandit (PW-198) deposed that the details were already
furnished on 14.2.2001 in respect of 9811278510 while the
speed card details of the No.0006680375 were not available
in the records. The relevant documents are Exhibit PW-198/E
in respect of cell No.9811242154. The evidence of Rajiv Pandit
G went almost unchallenged. His assertion that he, as a General
Manager (Administration), of ESSAR Cell Phones had
provided the relevant information of call details to Inspector
Surender Sand in respect of mobile No.9811278510, has gone
unchallenged. From his evidence, it stands proved that calls
H were made to BBC correspondent from cell No.9811278510
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 121
DELHI [V.S. SIRPURKAR, J.]
on 22.12.2000 at 9.27 p.m. and two calls were made to BBC, A
Delhi No.3355751 at 9.50 p.m. He also established that when
ttie call was made, the location of caller, as per mobile details,
was at Kashmere Gate whereas from the second call, the
location was Chandni Chowk. This evidence is also
corroborated by the evidence of Mohan Chand Sharma (PW- B
229) who located the two IMEI numbers mentioned above and
he also confirmed that as per the information collected by him
two calls were made to BBC offices one in Srinagar and one
in Delhi. There is absolutely nothing to dis-believe this version
and, therefore, it is clear that telephone No.9811278510 was c
used on the relevant date on 22.12.2000 for claiming the
responsibility of the attack in Red Fort. When call was made
the IMEI number was 449173405451240. This situation almost
clinches the issue.
37. The corroboration to the fact that a message was D
received by BBC Delhi telephonically regarding the attack on
Red Fort on 22.12.2000 at about 9 O'Clock at night is to be
found in the evidence of Satish Jacob (PW-150) who proved
Exhibit PW-150/B. There is no cross examination of the
witness on this aspect. The prosecution, therefore, is successful E
in establishing that the cell phone No.9811278510 was used
for making the calls to Srinagar, BBC correspondent as also
to the BBC correspondent in Delhi. In these calls, the caller who
was handling that cell phone not only informed about the attack
on the Red Fort but also owned the responsibility of Lashkar- F
e-Toiba therein. These call details have been proved by Rajiv
Pandit (PW-198) whose evidence we have already referred to
earlier, vide Exhibit PW 198/B1 to B3. The inter se connection
in between this cell phone and cell phone No.9811242154 is
also clearly established by the witness Rajiv Pandit (PW-198) G
on the basis of IMEI number used in that cell phone. He had
also established that these calls to the BBC were made from
the vicinity of the Red Fort. While the call to Srinagar was made
from Chandni Chowk, the second call was made from behind
the Red Fort. lthas already come in the earlier discussion that H
122 SUPREME COURT REPORTS [2011] 10 S.C.R.
A the information received from the analysis of the cell phone
records particularly of cell No. 9811242154 along with its IMEI
number came very handy to the investigating team for further
establishing the connection in between the landline telephones
which were at the computer centre owned by the appellant at
B Ghazipur which number was in the name of his sister-in-law
Farzana Farukhi and where the appellant lived with his wife
Rehmana Farukhi. Ms. Jaiswal took us thoroughly through the
cross examination of this witness and pointed out that on the
basis of Exhibit PW-198/DA, there were some contradictory
c entries in Exhibit PW-198/DA and the other data proved by the
witness. We are not impressed by this argument firstly because
there is nothing to show that this is an authenticated document
and though Ms. Jaiswal claimed that this document was
supplied to the accused by the prosecution, there is nothing to
support such a claim. We, have, therefore, no hesitation in
0
rejecting Exhibit PW-198/DA. Ms. Jaiswal then pointed out that
in Exhibit PW-198/E, there were certain discrepancies. The
witness had actually explained those discrepancies by
asserting "if the computer has reversed at some point, it may
E be due to technical fault". It is quite understandable that there
could be some technical problems in the computer: We have
gone through the whole cross examination very carefully but we
do not find any reason to reject Exhibit PW-198/E. In our
opinion, the insignificant irregularities brought in the cross
examination would not call for rejection of the document and
F the evidence. We, therefore, accept that cell phone
No.9811278510 was used at a very crucial point of time i.e.
between 9 to 9.30 p.m. at night on the day when the attack took
place at or about the same time on Red Fort wherein three
innocent persons were killed. We also confirm the finding by
G the trial Court and the appellate Court that it was this mobile
number which was found with the appellant when he was
arrested. We have already held that the theory that this mobile
number belonged to the prosecution and it was planted on the
appellant is not only farfetched but totally un-believable. We
H have also explained the delay in recovery of this mobile number
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 123
DELHI [V.S. SIRPURKAR, J.]
from the accused on the basis of its IMEI number. The other A
1
'corroborating evidence connecting the two mobile numbers
namely, 9811278510 and 9811242154 and the IMEI
. jNos.44519944090240 and 449173405451240 and their
interconnection with phone No.011 3355751 of BBC, Delhi,
2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and B
phone No.6315904 at computer centre is to be found in the
evidence of Rajiv Pandit (PW-198), Inspector Mohan Chand
Sharma (PW-229) and Inspector S.K.Sand (PW-230). The
attempt of the investigating agency in analyzing the call details
of these two numbers succeeded in establishing the connection c
of these two numbers with the number of BBC correspondent
at Srinagar, the number of BBC correspondent at Delhi, the
number atFarzana Farukhi's residence and the number at the
computer centre in the· name of Danish Mohd. Khan. But for this
careful and meticulous analysis which was of very high D
standards, it would not have been possible to apprehend the
. . appellant and to de-code the intricate and complicated maze
of the conspiracy. The timing of the calls made from this
number to BBC Srinagar bearing number 0194452918 and
BBC, Delhi bearing No.011 3355751 are significant. It will be E
seen that the calls made to Srinagar were at 7.41 p.m., 7.42
p.m. and 9.27 p.m. while the calls made to BBC, Delhi were at
9.25 p.m., 9.33 p.m. and again 9.33-45p.m. Again, while the
calls to Srinagar were made from the front side of the Red Fort,
the other calls were made from the back side of the Red Fort
which establishes the presence of this mobile phone in close F
proximity to Red Fort when the calls were made. That is a very
significant aspect.
38. All this evidence would leave no option for us except
to accept the prosecution's contention that this cell phone G
No.9811278510 and the other phone No. 9811242154 as also
the two IMEI numbers were extremely significant aspects.
39. The next circumstance which makes these mobile cell
phones significant was the evidence of PW-229, Inspector H
124 SUPREME COURT REPORTS [2011) 10 S.C.R.
A Mohan Chand Sharma when he asserted that this mobile
No.9811278510 was constantly used on 14.11.2000 from Zakir
Nagar area. The witness claimed this on the basis of the cell
ID. It is to be seen that when the said mobile was used its IMEI
No. was 445199440940240 and the witness further asserted
B that during this period phone calls from this number were made
to Pakistan. The witness explains that on 11.12.2000, the IMEI
number was changed to 449173405451240 and a telephone
call was made from this number to 0116315904 which is the
landline number of computer centre run by the appellant. The
c making of the calls to Pakistan is extremely significant. This
witness also explained in his evidence as to how on the basis
of the cell ID and the call record of the two mobile cell phones,
namely, 9811278510 and 9811242154 they zeroed on the
location of the accused. This witness has explained that the
earlier mentioned IMEI number 445199440940240 was also
0
used in the second mobile number 9811242154. In his
examination in chief, this witness has explained that the calls
were received and made from and to this number 9811242154
from Zakir Nagar and Ghazipur. He also asserted in his
conclusion that the cell ID of mobile number 9811242154 was
E at Zakir Nagar when the calls were made to Ghazipur and the
cell ID was at Ghazipur when the calls were received on Zakir
Nagar. This he said on the basis of the computer installed in
their office. The witness also explained that the call details of
the telephone number 9811242154 was collected from the
F official computer and he also proved the document Exhibit PW-
229 A which data pertained to the period 22.7.2000 to
19.11.2000. He also connected the two telephones by saying
that the calls were made on 8.9.2000 at about 11.37.53 hours
to pager No.1949696 from both these mobile cell phones. He
G then asserted about the user of cell phone number 9811278510
on the day when the attack took plate. He also established the
connection of landline No.2720223 at Ghazipur which stood in
the name of Farzana Farukhi and another number 6315904
which was a landline number at Knowledge Plus Computer
H Centre run by the appellant. It was on the basis of the caller ID _
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 125
· DELHI [V.S. SIRPURKAR, J.] .
that the investigating team zeroed on these two points. We do A
not see any reason to dis-believe this witness. The calls to
Pakistan from the concerned numbers is a very significant
circumstance particularly because the appellant is admittedly
a Pakistani national· and was staying in India unauthorizedly.
B
40. The witness also asserted on the basis of Exhibit PW-
198/B 1 to B3 that there were calls made on 20.12.2000 to
22.12.2000 in which calling number could not be recorded as
the calls were made from Pakistan to India. He explained it that
during those days clipping facility was not available in India with C
Pakistan. He explained clipping facility to be Calling Line
Identification facility. He has further asserted that these calls
from Pakistan were received on mobile number 9811278510
when that mobile number was at Jamia Nagar; New Friends
Colony, Kashmere Gate and Chandni Chowk and he further
asserted that on 22.1.2.2000 when the calls were received on D
14.32 i.e. at 2.32 p.m. the position of the mobile was at Darya
Ganj. He also further explained that when the call was made
from this number 9811278510 on 22.12.2000 at 7.41 p.m. the
location of this number could be inside the Red Fort. Similarly
he asserted about the calls having been made from this E
number at 8.24 p.m. when this telephone was at Kashmere
Gate i.e. towards the back of Red Fort. He also asserted about
the calls having been made from this number to BBC, Delhi
when the location of cell phone was behind the back of Red
Fort. Similarly, he spoke about the call having been made to F
BBC, Srinagar on its landline number from the sarne position
when the cell phone caller was behind the back of the Red Fort.
He a·1so further asserted that on the same day i.e. on
22.12.2000 the calls were received on this cell phone number
when this cell phone number was at Jamia Nagar and that the G
cell phone remained in the same position at Jamia Nagar
constantly. There is no reason for us to dis-believe this
evidence which was collected so painstakingly. What is most
significant in this evidence is that this very cell phone number
H
•
126 SUPREME COURT REPORTS [2011] 10 S.C.R.
A was used to make the calls to and receive the calls from
Pakistan.
41. The next significant circumstance is the evidence of
Inspector J.S.Chauhan of BSF (PW-162). He was posted at
B Rajouri on 26.12.2000 and on that day a message was
intercepted by BSF to the effect that a wanted militant in the
shoot-out inside Red Fort case known as Ashfaq Ahmed was
apprehended while other militant Abu Shamal was killed.
According to this witness this message was being passed by
LeT by a militant called Abu Sakar to a station in Khyber in
C Pakistan Occupied Kashmir. He proved the handwriting of one
B.S. Virk DIG (West) and proved the document as Exhibit PW-
162A. The other witness on this point is Constable Suresh
Kumar, BSF Head Quarters Srinagar (PW-175). He was the
one who intercepted the message on his wireless set to the
D effect that Delhi police had killed one militant Shamal Bhai and
one more militant, namely, Abu Hamad Hazarvi whose real
name was Ashfaq was apprehended. The message also
suggested that militant Bilal Babar was successful in running
away and was hiding in Delhi in his hide out. He asserted that
E he passed this message to the senior officers. In his cross
examination, it has come that it was not a coded message and
the same was being conveyed in Urdu. A very funny suggestion
has been given to this witness that it was a coded message
meaning thereby the factum of message was admitted. In his
F cross examination at the instance of the appellant the witness
asserted that the message was being passed from Srinagar
though he was unable to locate the exact point of the wireless
set from which it was being sent. There is hardly any cross
examination. Significantly, there is a reference to one Abu Bilal
G in the said intercepted message. Very significantly, it has come
in the evidence of Inspector Pratap Singh (PW-86) and the
evidence of S.K.Sand (PW-230) that when the appellant was
apprehended and his wallet was checked, a negative was
recovered from the wallet which was said to be of Abu Bilal. In
H fact Inspector S.K. Sand (PW-230) got this negative developed
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 127
DELHI [V.S. SIRPURKAR, J.]
into a photograph. He then asserted that the saidAbu Shamal . A
who was involved in the .Red Fort shoot out case had died and
an FIR No.9/2002 police station Special Cell was registered
in this behalf. The said Abu Bilal was a .proclaimed offender in
FIR No.688 of 2000 Police Station Kotwali, Delhi and as per
the evidence of Mohan Chand Sharma he was subsequently B
killed in an encounter. All this voluminous evidence would not
only corroborate the prosecution version to show the significant
role played by the appellant in handling both the cell phone
numbers mentioned above. It is of no minor significance that
on the apprehension of the appellant the news should reach c
Srinagar and from there to Pakistan Occupied Kashmir by way
of wireless messages not only about the involvement of the
appellant but also about Abu Shamal who was killed in the
encounter as also Abu Bilal who was a proclaimed offender
and was then killed in another encounter. D
42. There is also some material brought by the
prosecution about the calls from these numbers to one Sher
Zaman who is said to be a Hawala dealer. T.he investigating
agency raided the house of Sher Zaman on 12.01.2001. This
was on account of the information received by the investigating E
agency from the appellant. In that raid, a·sum of Rs.1, 11, 100/-
was found at the said house and certain other documents like
diaries were also found which were seized under the seizure
memo. Mohd. ldrish (PW-74) who was the President of Dila
Ram Afgani Market, Ballimaran Delhi has proved the seizure. F
The fact that the calls were made from cell phone 9811278510
were made by Mohd. Arif @ Ashfaq, the appellant, to the
telephone No.3969561 was established by Kashi Nath (PW-
46) who was representativ~ of MTNL. He proved that this
number was installed by him in premises No.5123, Sharif Manjil G
and that was the office of Sher Zaman. This evidence was also
corroborated by Om Prakash (PW-46). Very significantly, the
documents seized at Sher Zaman's office included a Visa of
Islamic Republic of Pakistan and an identity card of NllT etc.
The seizure memo is proved by R.K. Ajwani (PW-83). He was, H
- _;, .. · '~. - .
'.-'.....
128 SUPREME COURT REPORTS [2011] 10 S.C.R.
A at the relevant time, working in the Directorate of Enforcement
as the Chief Enforcement Officer and deposed that the
appellant in his presence identified the photograph to be of
Sher Zaman @ Shabbir and accepted that he used to deliver
hawala money. The visa slip of Islamic Republic of Pakistan
B was proved and marked as Exhibit PW-83/P1 and NllT card
No.1235-00304 with a photograph of Sher Zaman was proved
and marked as Exhibit PW-83/P2. There were some other
documents proved by this witness. The cross examination of
this witness is also lackluster. Therefore, this evidence is also
c extremely significant to support the role played by the appellant
in the conspiracy.
43. Even at the cost of repetition, we may mention that
immediately after the appellant was apprehended with a pistol
and the live rounds he spilled the beans and gave information
D about his other associate Abu Shamal on the basis of which
information the investigating team reached G-73, Batla House
at about 3.15 a.m. This is deposed to by Inspector Mohan
Chand Sharma. The house was locked. The investigating team
lay there and waited and at about 5.10 a.m. a man resembling
E the description given by the appellant entered the house. The
house was knocked at and the police disclosed their identity
but the same was not opened and therefore, it had to be
opened by the use of force. As per the evidence of Inspector
Mohan Chand Sharma (PW-229) the firing started from inside
F and the same was returned eventually leading to the death of
Abu Shamal @ Faisal. It is very significant to note that from this
house, one AK-56 rifle, two magazines, 32 live and 67 fired
cartridges were recovered. Two live hand grenades, bullet proof
jackets and khakhi uniform were als9 recovered. It is significant
G that there is virtually no cross examination on this aspect. The
evidence of Inspector Mohan Chand Sharma (PW-229)
suggests that immediately after his apprehension, the appellant
had owned up the involvement in the Red Fort attack incident
and that he showed his residence to recover the arms and .
H ammunitions and also disclosed about his associate. There is
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 129
DELHI [V.S. SIRPURKAR, J.]
absolutely no cross examination about the incident at G-73, A .
Batla House, Muradi Road, Okhla which place the police party
was led by and discovered by the appellant. There is nothing
to challenge the finding of the weapons & ammunition which
were recovered at the instance of and as a result of information
given by the appellant. All this has gone unchallenged in cross B
examination of Inspector Mohan Chand Sharma (PW-229). All
this is supported by documentary evidence like DD entry
bearing No.20 at Police Station New Friends Colony which
mentioned about the firing going in Gali N.8, Batla House. Ram
Singh, ASI (PW-92) proved this entry. Similarly, the receipt of c
information is entered as DD entry No. 28A at the same police
station on 26.12.2000 at 6.40 a.m. Lastly, on the same day
there is another entry DD No.22A at the same police station
on the basis of information by Inspector Mohan Chand Sharma
and FIR No.630 of 2000 was also registered. The other D
significant witnesses are Constable Ranbir Singh (PW-177)
and ASI Ran Singh (PW-92). We need not go into the contents
of these entries excepting to suggest that the information given
by the appellant about Abu Shamal is reflected therein. This
brings us to a very important discovery statement made by the E
appellant as also to the seizure in pursuance of the said
discovery statement.
44. The appellant was formally arrested after he was
brought back at about 6.45 a.m. by S.I. Harender Singh (PW-
194). It is at this time that the mobile phone No.9811278510 F
was recovered from his possession. The seizure has been
proved by Zile Singh (PW-148) which is Exhibit PW-148/ D.
This witness proved that after his formal arrest by S.I. Harender
Singh in the search of appellant, Rs.1000 in cash and the
mobile phone of Motorola make was recovered. He then made G
a disclosure statement vide Exhibit PW-148 E. This recovery
of mobile phone was also corroborated by Inspector Mohan
Chand Sharma (PW-229). It had IMEI number
449173405451240 on which calls were made from mobile
phone 9811278510 and as per the call details this was the H
130 SUPREME COURT REPORTS [2011] 10 S.C.R.
A instrument used for mobile number 9811278510. We have
already explained in the earlier part of the judgment that this
evidence could not be rejected on the mere plea that the mobile
number was not found or was not immediately taken in
•possession by the investigating agency though they
B apprehended him on the night of 25.12.2000. We have also
pointed out as to how it would have been disastrous to waste
time in writing the Panchnama instead of immediately acting
on the information given by the appellant. We, therefore, see
nothing unnatural or unusual in the recovery of the mobile phone
c 9811278510. After all, the subsequent results which followed
discovery statement by the appellant i.e. the knowledge about
G-73, Batla House and the encounter of Abu Sha ma I and the
finding of his fire weapon and the ammunition etc. do justify the
quick action on the part of the investigating agency. We,
0 therefore, cannot view with suspicion the formal arrest of the
appellant and the recoveries effected thereafter or the seizure
memos executed.
45. After his arrest in the evening of 25.12.2000, the
appellant firstly disclosed about Abu Shamal @ Faizal. After
E the encounter of Abu Shamal@ Faizal, when his formal arrest
was made, he made disclosures vide Exhibit PW-148/E. There
is no cross-examination of S.I. Zile Singh (PW-148) about the
factum of the appellant having made a disclosure. S.I. Harender
Singh (PW-194) is another witness to speak about the Exhibit
F PW-148/E. It has been baldly suggested to S.I. Harender Singh
(PW-194) that the appellant was tortured. The discovery
statement which was made by the appellant is to the following
effect:-
"Abu Shaimal had thrown his AK-47 rifle, magazine and
G
hand grenade into the shrubs near nullah behind the wall
of Red Fort. Abu Shad had thrown his AK-47 rifle into the
shrubs grown at Vijay Ghat. I can point out the places and
get recovered the weapons."
H Another witness examined on this issue was S.I. Satyajit
•
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 131
DELHI [V.S. SIRPURKAR, J.]
Sarin (PW-218). He asserted in his examination-in-chief that A
the investigation team reached the Red Fort alongwith Mohd.
Arif@ Ashfaq and the team was joined by Inspector Hawa
Singh (PW-228). They requested two/three passersby to join
the investigation, but they refused to join and, therefore, without
wasting any further time, they reached the spot and there they B
found AK-56 Assault Rifle, two magazines tied to each other
and a bandoleer of military green colour containing four hand
grenades in four different packets. The site plan was prepared
by Inspector Hawa Singh (PW-228) and the recovery of the
arms and ammunition was made and the same were taken to c
P.S. Kotwali. The hand grenades were later on got defused.
The chance finger prints were tried to be taken and
photographs were taken.
46. The witness also gave a complete description of the
four detonators and a slip attached to the hand grenades. A D
complete description of the shells was given by this witness.
He also identified the said rifles, magazines, knife and
detonators, as also four hand grenades and the bandoleer in
Court. The other witness to support this discovery. and the
recoveries pursuant thereto is S.I. Amardeep Sehgal (PW-227). E
He also gave a complete story as deposed by the earlier
witness. This evidence was further corroborated by the
evidence of N.B. Bardhan, Sr. Scientific Officer in CFSL (PW-
202), who was present at the time of recovery of hand grenades
being a ballistic expert. Another witness is S.K. Chadha (PW- F
125). We have already discussed earlier the evidence of N.B.
Bardhan about the nature of the rifles, one found at Batla House
and the other recovered at the instance of the appellant from
the Red Fort wall. He has also spoken about the nature of the
hand grenades. This discovery was attacked vehemently by Ms. G
Kamini Jaiswal, learned counsel appearing on behalf of the
appellant, in all the aspects. The learned counsel described this
recovery as a farce and also asserted that this discovery could
not be said to be a discovery at all in view of the fact that in all
probability, the placement of the rifles, bandoleer etc. must have H
132 SUPREME COURT REPORTS (2011] 10 S.C.R.
A. known to the police for the simple reason that the whole area
was almost combed by number of police personnel for the
whole night and even thereafter i.e. in the night of 22.12.2000
and the morning of 23.12.2000. We have seen the recovery
Panchnama proved by the witnesses at Exhibit PW-227/A. It
B has to be borne in mind that both the rifles and the ammunition
have not only been identified by the witnesses but it has also
been proved by the prosecution as to how they were used and
the fact that they were used actively in the sense that they were
fired also. We have already discussed the evidence of the
c Ballistic experts, which went on to corroborate the version by
the prosecution. The learned counsel pointed out that this
weapon was found near to the slip which was recovered on the
night of 22.12.2000 itself. She also pointed out that weapon
could. not be said to be hidden. They were just lying in the bush
and, therefore, it is just impossible to infer that they were not
0
seen by the police. In short, the learned counsel suggested that
this is a fake discovery and the police already knew about the
AK-56 Assault Rifle, magazines and a bandoleer etc. She
pointed out that one other witness, namely, Abhinender Jain
(PW-28) was a part of the team in recovering the weapons
E allegedly at the instance of the appellant and he did not speak
about the disclosure made by the appellant on 26.12.2000. We
shall revert back to this discovery in particular and the law
relating to Section 27, Evidence Act a little la.ter.
F 47. Another discovery at the instance of the appellant was
on 01.01.2001 vide Disclosure Statement (Exhibit 28/A).
However, there is one more important discovery at the instance
of the appellant, which is proved at Exhibit 168/A. It was made
on 01.01.2001 and has been proved by R.S. Bhasin (PW-168)
G and S.I. Satyajit Sarin (PW-218). In this discovery, the appellant
disclosed that out of the hand grenades which he had brought
from Pakistan, three were hidden in the bushes inside boundary
wall of Jamia Milia lslamia University, which spot is just behind
the computer centre run by the appellant. Accordingly, this
H discovery statement was recorded by R.S. Bhasin (PW-168)
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 133
DELHI [V.S. SIRPURKAR, J.]
and he organized a raiding team consisting of Inspector Hawa A
Singh (PW-228), Inspector Mohan Chand Sharma (PW-229)
and five others, who were not examined by the prosecution. The
team went to New Friends Colony at 2.25 pm and appraised
SHO Gurmeet Singh (PW-213), who alongwith two others (not
examined), joined the investigation. After taking the permission B
from Dr. Farukh and Dr. Mehtab, one Raghubir Singh (PW-209)
was asked by the authorities to join the investigation. One
Devender Kumar (PW-208) also joined the raiding party.
Thereafter, at the instance of the appellant, three hand grenades
were recovered kept concealed. A seizure memo was also c
executed vide Exhibit PW-168/B and a Rukka was also
prepared, on the basis of which a new case was sought to be
registered at P.S. New Friends Colony. One more disclosure
statement was made vide Exhibit PW-168/D, where the
appellant disclosed and agreed to recover more hand grenades D
and AK-56 rifle which was recovered from Safa Qudal, Sri
Nagar. This version was supported by S.I. Satyajit Sarin (PW-
218) as also S.L Amardeep Sehgal (PW-227) and Inspector
Hawa Singh (PW-228). There is nothing to disbelieve this
discovery of hand grenades which hand grenades were
ultimately identified and their potency was proved by N.B .. E
Bardhan (PW-202). A feeble contention was raised by Ms.
Jaiswal, learned counsel that this discovery of the hand
grenades should not be believed because it is belated. She
pointed out that the appellant was in the police custody right
from the night of 25.12.2000 and the discovery statement was F
made and recorded on 1.1.2001. Insofar as the discovery of
grenades is concerned, we must say that nothing much was
argued. The significance of the grenades having been hidden
right behind the computer centre near the compound wall of
Jamia Milia lslamia University cannot be ignored. The appellant G
has no explanation as to why the three hand grenades were
hidden right behind the computer centre.
48. The learned Solicitor General very forcefully argued with
reference to various documents which supported this discovery H
134 SUPREME COURT REPORTS [2011] 10 S.C.R.
A and pointed out that immediately after the recovery of these
hand grenades, they were seized properly and this recovery
was supported by the independent evidence of Devender Jain
(PW-208) and Raghubir Singh (PW-209). He also pointed out
that there is nothing in the cross-examination of these two
B individual witnesses to dispute or doubt the recovery of the hand
grenades at the instance of the appellant. It is to be noted that
police could not have produced the foreign made hand
grenades to be planted either at the Red Fort or at Jamia Milia
lslamia University behind the computer centre. Insofar as the
c discovery of hand grenades at Jamia Milia lslamia University
is concerned, we have no doubts about its genuineness and
we accept the same. Merely because the appellant was in
custody for 4-5 days and decided to disclose the information
only on 01.01.2001, would not be a reason by itself to doubt
the same or to have any suspicion on the same. In the case of
0
this nature and magnitude and also considering the nature of
the appellant who was a Pakistani national and was allegedly
sent to do terrorist acts in India and as such a tough terrorist,
was not expected to give easily the information unless he was
E thoroughly interrogated. Considering the peculiar nature of this
case, we accept the discovery of grenades at the instance of
the appellant. Same thing can be stated about the earlier
discovery dated 26.12.2000 of the AK-56 Assault Rifle,
magazines, bandoleer etc. The very fact that these weapons
were proved to have been used would corroborate the
F discovery. If the general public refused to join the investigation
to become Panchas, that cannot be viewed as a suspicious
factum and on that basis, the investigative agency cannot be
faulted. After all, what is to be seen is the genuineness and
credibility of the discovery. The police officers, who were
G working day and night, had no reason to falsely implicate the
appellant. They could not have produced AK-56 Rifles and the
grenades of foreign make from thin air to plant it against the
appellant. It has been held in Suresh Chandra Bahri v. State of
Bihar [1995 Suppl (1) SCC 80] that even if the discovery
H statement is not recorded in writing but there is definite
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 135
DELHI [V.S. SIRPURKAR, J.]
evidence to the effect of making such a discovery statement A
by the concerned investigating officer, it can still be held to be
a good discovery. The question is of the credibility of the
evidence of the police officer before whom the discovery
statements were made. lfthe evidence is found to be genuine
and creditworthy, there is nothing wrong in accepting such a B
discovery statement. We do not see any reason to accept the
argument that the police must have already known about the
weapon. Considering the fact that this attack was on a dark
night in the winters and the guns were thrown in the thick bushes
then existing behind the Red Fort wall, it is quite possible that c
they were missed by the investigating agency. At any rate, the
recovery of these guns from the spot near which the whole
horrible drama took place and the appellant having knowledge
about the same and further the proved use of these weapons
and their fire-power, would persuade us to accept this 0
discovery. Again, we cannot ignore the fact that the factum of
discovery has been accepted by both the Courts below.
49. There are some other significant circumstances relied
on by the prosecution to show that the appellant, who admittedly
was a Pakistani national and had unauthorizedly entered India, E
wanted to establish his identity in India and for that purpose,
he got prepared a fake and forged ration card and on that
basis, applied for a driving license and also opened bank
accounts. The only purpose in doing this was to establish that
he was living in Delhi legitimately as an Indian national. F
50. On his arrest on 25.12.2000, a ration card was
recovered and seized from the very house at 308A, ODA flats,
Ghazipur, Delhi. This card bore the number 258754. This was
in the name of Ashfaq Ahmed, S/o Akram Khanat, Rio F-12/ G
12, Batla House, Okhla, New Delhi. S.R. Raghav, retired Food
and Supply Officer, Delhi (PW-7) entered the witness box to
suggest that this card was not issued by his department i.e.
Circle 6, Okhla. Other witness is Ms. Anju Goel, UDC (PW-
164), who deposed that the appellant's ration card did not bear H
136 SUPREME COURT REPORTS [2011) 10 S.C.R.
A her signature. She also pointed out that the signature appearing
in Exhibit PW-164/A (ration card) was not her signature. There
is no effective cross-examination of both these witnesses.
Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165)
also referred to the aforementioned ration card proved by Ms.
s Anju Goel (PW-164) and asserted that the signature and the
handwriting on the said card was not that of Ms. Anju Goel.
Manohar Lal, UDC, Department of Education (PW-172)
deposed that the appellant's ration card was not issued from
Circle 6 of the Ration office. Kushal Kumar (PW-174) deposed
c that he had made entry of ration card of the appellant in his
register at his fair price shop. Ms. Sunita, LDC, Food & Supply
Office, Circle 7 (PW-191) gave specimen of two rubber stamps
and they did not tally with the rubber stamps on the ration card
of the appellant. There is absolutely no cross-examination.
There is a report proved by Yashpal Singh, Supply Inspector,
0
Department of Food and Supply, Ghaziabad (PW-2), being
Exhibit PW-2/A, to the effect that no ration card in the name of
Mohd. Arif @ Ashfaq (appellant) was ever issued by their
office. Thus, it is obvious that the appellant got prepared a fake
ration card, where name of his wife was mentioned as Sano
E and residence as 102, Kela Bhatta, Ghaziabad, where he had
never resided. This ration card, significantly enough, was
recovered from his house at 308A, ODA flats, Ghazipur, Delhi.
Yashpal Singh (PW-2) and Rajbir Singh, Area Rationing Officer,
Food and Civil Supply Department, Ghaziabad (PW-3) proved
F that the ration card was in the name of Azad Khalid (PW-1) and
there was no ration card in the name of Ashfaq Ahmed S/o
Akram Khanat. Azad Khalid Siddique, Correspondent, Sahara
TV (PW-1) himself stepped into the witness box and deposed
that there was one ration card in his name and other in his
G father's name, which were issued at the address of 102, Kela
Bhatti, Ghaziabad, which address was falsely given by the
appellant because the appellant had never stayed at the said
address. Thus, it is obvious that the ration card was fake and
fabricated. The factual information on the ration card also does
H not tally at all.
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 137
DELHI [V.S. SIRPURKAR, J.]
·51. The investigating agency, on 3.1.2001, seized certain A
important documents, they being a learner's license issued by
Shaikh Sarai Authority bearing Exhibit No. PW-13/C, Form No.
2 of Ashfaq Ahmed for renewal of learner's license bearing
Exhibit No. PW-13/D and a photocopy of the ration card of
Ashfaq Ahmed bearing Exhibit No. PW-13/E. The seizure B
memo is Exhibit PW-13/B. These documents have been
proved by S.I. Rajinder Singh (PW-137). This was in order to
do the verification of the driving license of the appellant. The
witness suggests that he enquired from Ms. Mamta Sharma
(PW-16), ARTO, who confirmed that the same was a genuine c
driving license having been issued by her office and hence,
proceeded to seize the supporting documents. It is obvious that
the said driving license was sought for on the basis of the ration
card in the name of the appellant, which was obviously fake,
as we have already shown above for the simple reason that the D
address given on this driving license was not the genuine ·
address of the appellant, whereas it was in fact the address of
Azad Khalid Siddique (PW-1) who had nothing to do with the
appellant. In this driving license also, the address given by the
appellant was 8-17, Jangpura, Bhogal and it was issued by E
Sarai Kale Khan Authority. He obviously did not reside on this
address which is clear from the evidence of Narayan Singh
(PW-6). Thus, not only did the appellant got himself a fake and
forged ration card, but on this basis, also got prepared a fake
learning license, in which also, he gave a false residential
address. All this was obviously with an idea to screen himself F
and to carry on his nefarious activities in the Indian cities.
Nothing much has come in the cross-examinations of these
witnesses. We have, therefore, no hesitation to hold that the
appellant used a forged ration card and got a driving license
giving a false address. G
52. The appellant; in order to legitimize his residence in
Delhi, started a computer centre at House No.18C, Gaffur
Nagar, Okhla. Danish Mohd. Khan (PW-44), Mohd. Khalid (PW-
36), Faizal Mohd. Khan (PW-56), Shahvez Akhtar (PW-113) H
138 SUPREME COURT REPORTS [2011) 10 S.C.R.
A and Shahnawaz Ahmad (PW-163) are the witnesses on this
aspect. Danish Mohd. Khan (PW-44) deposed that his cousin
Faizal had opened a cyber cafe with the appellant and this was
told to him in September, 2000. Previously both of them used
to reside in the house of Nain Singh (PW-20). Since Faizal did
B not have an identity proof, he borrowed the identity card of this
person and since the card was in his name, the phone
connection in this computer centre was also in his name. He,
undoubtedly, resiled from his statement before the police that
he .applied for a telephone connection in his name. However,
c there is no cross-examination of this witness about what was
told to him by Faizal. In his cross-examination at the instance
of the Public Prosecutor, he admitted that Faizal had asked him
to help him in getting telephone connection. He also admitted
that Faizal had told him that for getting an internet connection,
0 a telephone was required. The telephone number of the
computer centre was 6315904 which was in the name of this
witness.
53. The other witness in this behalf is Faizal Mohd. Khan
(PW-56) himself who deposed that he was residing in the
E house of one Nain Singh (PVV-20) at Okhla Village on a monthly
rent of Rs.1 ,000/- and that he had a personal computer on
which he used to practice. He further deposed that one Adam
Malik (PW-31) also used to reside in the said house and it was
he who brought the appellant with him in May, 2000. It was this
F Adam Malik (PW-31) who introduced him to the appellant and
told him that the appellant is a resident of Jammu. He wanted
to open a computer centre but was not having enough money
and it was Adam Malik (PW-31) who informed the appellant
that the witness wanted to open a computer centre and offered
G financial help. He managed Rs.70,000/- and the appellant put
Rs.1,70,000/- and that is how the computer centre was opened.
The witness stated that the twosome i.e. himself and the
appellant employed one Shahvez Akhtar (PW-113) and
_Shahnawaz Ahmad (PW-163) as faculty members on the
H condition that they would get salary only when the computer
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 139
DELHI [V.S. SIRPURKAR, J.]
centre starts earning profit. He then deposed that he used the A
ration card of Danish Mohd. Khan (PW-44) an(:! a telephone
connection was obtained in the name of Danish Mohd. Khan
(PW-44) and was installed at the computer centre 'Knowledge
Plus'. We have already referred to his assertion that the
appellant had a mobile phone. In his cross-examination, nothing B
much has come about the contribution given by the appellant
of Rs.1, 70,000/-. He also asserted that it was the appellant who
managed to take the premises of computer centre on lease.
Shahvez Akhtar (PW-113) and Shahnawaz Ahmad (PW-163)
have supported this. Adam Malik (PW-31) also confirmed that c
he was the one who arranged for the accommodation of the
appellant in the house of Nain Singh (PW-20). To him, the
appellant had told that he was a Kashmiri and doing the
business of selling shawls. Nain Singh (PW-20) also supported
the theory of the appellant contacting him through his earlier D
tenant Adam Malik (PW-31). To the same effect is the evidence
of Aamir lrfan (PW-37) and Rashid Ali (PW-232). All this clearly
goes on to show that the appellant was all the time making false
representation, firstly, on his doing business of selling shawls,
secondly, on carefully entering as a tenant in the house of Nain E
Singh (PW-20), thirdly, on defrauding Danish Mohd. Khan (PW-
44) for opening a computer centre for which he contributed
Rs.1,70,000/- and lastly, successfully getting a telephone
installed at the computer centre. All this was nothing but a
deliberate effort to find a firm foot hold on the Indian soil to carry
out his nefarious design. F
54. We have also gone through the evidence of Gian
Chand Goel (PW-21 ), which establishes the connection of the
appellant with House No.G-73 Batala House, Murari Road,
Okhala, New Delhi, where the encounter took place in which G
the appellant's companion Abu Shamal was killed. In his
evidence, Gian Chand Goel (PW-21) specifically stated that he
did not know anything about the appellant and that he had
rented the house to Rashid Ali (PW-232) on 6.12.2000 i.e.
barely 16 days earlier to the incident at a monthly rent of H
140 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Rs.1,500/-. He also deposed that on 7.12.2000, two other boys
were brought" by him and all the three started residing on the
first floor of his house. He deposed that Rashid Ali (PW-232)
• who was a student of Jamia Milia lslamia University and the
appellant were the tenants of Nain Singh (PW-20) and later on,
B they shifted into his house as tenants. He also referred to the
encounter dated 26.12.2000, wherein Abu Shamal was killed,
though he did not know the name of Abu Shamal.
55. Rashid Ali (PW-232) had a significant role to play in
this whole affair. He asserted that he was a tenant of Nain Singh
C (PW-20) in 1998 while studying in Jamia Milia lslamia University
in B.A. llndYear. He was friendly with one Hamid Mansoori and
Adam Malik (PW-31). He came to know the appellant who was
residing in the house of Nain Singh (PW-20) as a tenant. He
also confirmed that the appellant was having a mobile phone
D with him. On 8.12.2000, the appellant took him to Roza lftar
Party at Laxmi Nagar. Instead of the lftar Party, the appellant
got married to a lady on that day. Significantly enough, the
appellant had already gone as a tenant to Gian Chand Goel
(PW-21), however, it seems that still he was making out as if
E he was residing in PW-20 Nain Singh's house and in an
important function like his marriage, he took Rashid Ali (PW-
232) telling him that they were going for an lftar Party in the
month of Ramzan. All this suggests that the appellant was very
particular about his own personal details and made various
F false representations to all those in whose contact he came.
Needless to say that he used all these witnesses to his own
benefit for carrying out his evil design in pursuance of the
conspiracy. ·
G 56. This brings us to the evidence of Nain Singh (PW-20)
and the fantastic theory that the defence gave about the role
played by this witness. The said witness was examined to show
that House No. 97-A, Okhla Village was in the name of his
mother and while he stayed on the ground floor, his mother had
rented out the first floor and the second floor. He asserted that
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 141
DELHI [V.S. SIRPURKAR, J.]
Adam Malik (PW-31) was the tenant on the second floor and A
he had brought the appellant to his mother and his mother had
rented out the room to him at the rent of Rs.1,200/- per month.
He also asserted that he asked Adam Malik (PW-31) to get
the house vacated, whereupon, the appellant vacated the house
after about one and a half months. He was cross-examined in B
detail. It was brought out in his cross-examination that he did
not have any documentary evidence regarding the appellant
remaining in that house as a tenant. It was suggested to him
that he was working as an Intelligence man in the Cabinet
Secretariat. He was made to admit that he could not disclose c
the present official address or the places where he moved out
of Delhi. He was made to say ';I cannot say whether I am not
disclosing these addresses as my identity in the public would
be disclosed". He also refused to show his identity card in the
open Court while it was shown to the Court. He was made to 0
say "I cannot disclose whether I am working for RAW". He then
clarified that no fund was at his disposal for going out of Delhi,
but he was paid for the Railway warrant or air ticket. Strangely
enough, a suggestion was given to the witness to the effect that
the appellant never took the aforesaid house from his mother E
on rent or that he was introduced by any of the other tenants of
that house. All through in his cross-examination, it was tried to
be suggested that the appellant never stayed in his house as
a tenant. That is all the cross-examination of this witness. In his
statement under Section 313 Cr.P.C., the appellant suggested
that he used to work for X-Branch, RAW (Research & Analysis F
Wing) since 1997 and he had come to Kathmandu in June,
2000 to give some documents to one Sanjeev Gupta on a
Pakistan Passport bearing No. 634417. He spoke that there
was a party named Paktoonmili Party and RAW was supporting
that party since last 30-35 years. He stated that one Sagir Khan G
was a member of that party and he was arrested by the police
of Pakistan alongwith his younger brother and he received this
news in Kathmandu and spoke to Sanjeev Gupta in this regard.
He further claimed that his cousin had also advised him not to
return to Pakistan for the time being and that Sanjeev Gupta H
142 SUPREME COURT REPORTS [2011] 10 S.C.R.
A advised him to go to India and he accompanied him upto
Rauxol and from there, he (the appellant) came to India by train.
He claimed that the address of Nain Singh (PW-20) was given
to him by Sanjeev Gupta as also his telephone number being
6834454. He then claimed that Nain Singh (PW-20) gave a
B room in his house for his stay and advised him not to tell his
name and address to anyone and to describe himself as a
resident of Jammu. He claimed that Nain Singh (PW-20) used
to do business of money lending and the appellant used to help
him in maintaining his accounts. He then claimed that Nain
c Singh (PW-20) helped him to open the computer centre.
Thereafter, Nain Singh (PW-20) got some money through
Sanjeev Gupta from Nepal. The amount was Rs.7 lakhs.
However, Nain Singh (PW-20) did not disclose about receiving
of that huge amount and whenever he was questioned about
D any amount, Nain Singh (PW-20) used to avoid such questions.
He then claimed to have contacted his family members who
asked him to speak to Sanjeev Gupta and after he spoke to
Sanjeev Gupta, he came to know about Rs.6,50,000/- having
been sent to Nain Singh (PW-20) by i1im. The appellant then
E claimed that Nain Singh (PW-20) got his account opened in
HDFC Bank and also got a cheque book which was shown to
him. It was at his instance that the appellant was asked to sit
at the computer centre and his cheque book of the HDFC bank
used to remain with Nain Singh (PW-20). According to the
appellant, Nain Singh (PW-20) got only one cheque signed by
F him and whenever he needed money, he used to take it from
Nain Sing~ (PW-20) in the sum of Rs.500/- to Rs.1,000/-. He
then claimed that one Chaman Lal in Chandni Chowk and one
Sardar Ji in Karol Bagh were also engaged in the business of
money lending and the appellant used to collect money from
G them on behalf of Nain Singh (PW-20). He then went on to
suggest that on the birthday party of his son, Nain Singh (PW-
20) got him introduced to Inspector R.S. Bhasin (PW-168) and
Inspector Ved Prakash (PW-173). However, he persisted in
demanding money from Nain Singh (PW-20) on which Nain
H Singh (PW-20) used to get annoyed and because of that, he
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 143
. DELHI [V.S. SIRPURKAR, J.]
got the appellant involved falsely in this case. He claimed that A
on 25.12.2000, · Nain Singh (PW~20) called him from his
computer centre to his house on the plea that Inspector R.S.
Bhasin (PW-168) and Inspector Ved Prakash (PW~173) had
to take some information from him and he accordingly came
to the said house. Thereafter, these two persons who were in B
plain clothes and had come to the house of the appellant in a
white maruti zen car took him to a flat in Lodhi Colony, where
both the Inspectors alongwith one Sikh Officer interrogated the
appellant about his entire background and thereafter he was
dropped to his house by the same persons. Nain Singh (PVv- c
20) was not present at that time, but his wife informed him
about the telephonic call received from his in-laws at Ghazipur
regarding dinner in the evening. Thereafter, he took a bus and
reached the house of his in-laws and asked them whether they
had made a call which they denied to have made. He claimed D
to have finished his dinner by 10.00 pm when the police party
raided the house. The appellant stated that the police party
threatened him that if he spoke much, he will be shot dead and
his signatures were obtained on a blank paper. Then he was
tortured and was constantly kept in the custody of Inspector E
R.S. Bhasin (PW-168), S.I. Murugan and Constable Jai
Parkash. He then admitted to have put his signatures on the
blank paper under the fear of torture to himself and his sister-
in-law, mother-in-law and brother-in-law. He further said that he
did not know any other accused excepting his wife Rehmana
Yusuf Farukhi. He claimed that he was implicated in this case F
only because he is a Pakistani national.
57. All this would go to suggest that Nain Singh (PW-20)
had a very vital part to play in his (appellant) being brought to
India and being established there. Very strangely, all this long G
story runs completely counter to the cross-examination of Nain
Singh (PW-20), as has already been pointed out In his cross- ·
examination, the whole effort on the part of the defence was to
show that the appellant was never a tenant of Nain Singh (PW-
20) and had never stayed at his place, whereas his defence H
.... 144 SUPREME COURT REPORTS [2011] 10 S.C.R.
A was completely contrary to this theory wherein the appellant has
claimed that he was intimately connected with Nain Singh (PW-
20), inasmuch as, he used to look after his accounts and used
to assist him for recovery of the amounts loaned by Nain Singh
(PW-20) to various other people. The learned counsel did not
B even distantly suggest to PW-20 Nain Singh the long story
stated by the appellant in his statement under Section 313
Cr.P.C. There is not even a hint about the role played by
Sanjeev Gupta in Nepal or the amounts allegedly sent by
Sanjeev Gupta to Nain Singh (PW-20) and Nain Singh (PW-
C 20) having refused to part with the amount in favour of the
appellant. There is nothing suggested to Nain Singh (PW-20)
that the appellant was working for the X-Branch, RAW, much
less since 1997, while he was in Pakistan. The learned
defence counsel Ms. Jaiswal very vociferously argued that Nain
0 Singh (PW-20) was actually working for an organization "RAW'.
She also pointed out that a clear cut suggestion was given
about his RAW activities and his being a member of RAW, in
his cross-examination. She also pointed out that there was
some contradiction in the statement c.f Nain Singh {PW-20) and
Adam Malik (PW-31) about letting out the house to the
E appellant. Much was made of the fact that Nain Singh (PW-20)
refused to disclose his identity and shown the identity card only
to the Court. From all this, the learned counsel tried to argue
that Nain Singh (PW-20) was a RAW agent and was also
involved in business of money lending. She also pointed out
F that though Nain Singh (PW-20) claimed that the accused had
vacated the house, the evidence disclosed that the appellant
stayed at Nain Singh's house till December. She also pointed
to the contradictory statement made by Gian Chand Goel (PW-
21 ). According to the learned counsel, while earlier the witness
G said that the house was let out to Rashid Ali (PW-232) on
6.12.2000 and the appellant used to meet him, later on in the
same para, he said that the appellant and Rashid Ali (PW-232)
both, were his tenants. Then the said witness claimed in his
further cross-examination that the appellant was his only tenant.
H From all this, the learned counsel urged that there was a very
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 145
DELHI [V.S. SIRPURKAR, J.]
deep possibility of Nain Singh (PW-20) being a RAW agent A
and as such having given shelter to the appellant and that the
appellant stayed throughout in Nain Singh's house only. Very
significantly, this claim of the learned defence counsel goes
completely counter to the cross-examination where the only
suggestion given is that the appellant was never a tenant of Nain B
Singh (PW-20) and never stayed at his house.
58. The learned counsel also invited our attention to the
evidence of Aamir lrfan (PW-37), Yunus Khan (PW-4) as also
Ved Prakash (PW-173). We have considered all these C
contentions but we fail to follow the interesting defence raised
by the appellant in his statement under Section 313 Cr.P.C. and
complete contradictory stand taken while cross-examining Nain
Singh (PW-20). We also find nothing in the long story woven
by the appellant in his statement under Section 313 Cr.P.C.
about his activities as a RAW agent and about his being sent D
to Nain Singh (PW-20) by Sanjeev Gupta from Nepal. We do
find that there was reluctance on the part of Nain Singh (PW-
20) to show his identity card which he only showed to the Court,
but that does not, in any manner, help the defence case. Even
if it is accepted that Nain Singh (PW-20) was working for RAW, E
it does not give credence to the defence theory that it was Nain
Singh (PW-20) who brought the appellant in India, arranged for
his stay, took his services, arranged for his computer centre
and then ultimately, falsely got him implicated. In the absence
of any such suggestion having been made to Nain Singh (PW- F
20), the tall claims made by the defence cannot be accepted.
We have considered the evidence of all these witnesses,
namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir lrfan
(PW-37), Yunus Khan (PW-4) and Ved Prakash (PW-173), but
the same do not persuade us to accept the defence theory. It G
is obvious that the appellant was staying with Nain Singh (PW-
20) for some time and then used to interact with the other
tenants like Rashid Ali (PW-232) and Adam Malik {PW-31) and
at that time, he claimed to be belonging to Jammu and claimed
to be in the business of selling shawls. It is during that period H
146 SUPREME COURT REPORTS [2011] 10 S.C.R.
A alone that he got married to Rehmana Yusuf Farukhi barely a
fortnight prior to the incident at the Red Fort. We, therefore,
reject the argument of Ms. Kamini Jaiswal on this aspect.
59. This takes us to the various bank transactions which
B throw much light. Prosecution had claimed that when the diary
was recovered on the arrest of the appellant, the investigating
agency found one telephone number belonging to Sher Zaman
@ Shabbir who was found to be an Afghan national and
according to the prosecution, he used to supply Hawala money
C to the appellant. According to the prosecution, the appellant
used to deposit the money so received in his own account with
HDFC Bank, opened on the basis of fake documents. He also
used to deposit this money in two bank accounts of Nazir
Ahmad Qasid (original accused No. 3) and Farooq Ahmed
Qasid (original accused No. 4). According to the prosecution,
D this money which the appellant used to deposit in the account
of Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid (A-4)
was distributed to the other terrorists in Srinagar. Ms. Jaiswal,
learned counsel appearing on behalf of the appellant, claimed
that the prosecution had not been able to prove the link in
E between Sher Zaman @ Shabbir and the appellant. According
to her, the claim of the prosecution that Rs.29,50,000/- was
deposited in the accounts of M/s. Nazir & Sons, Farooq Ahmed
Qasid (A-4) and Bilal Ahmad Kawa (A-18) was also not
established. The learned counsel argued that the prosecution
F was able to barely prove deposit of Rs.5 lakhs, in the account
of appellant but had failed to prove that the appellant had
deposited Rs. 29,50,000/- in other accounts. According to the
learned counsel, even this claim of the prosecution that was
based on the evidence of handwriting expert, was not properly
G proved. The learned counsel also pointed out that while Nazir
Ahmad Qasid (A-3) and Farooq Ahmed Qasid (A-4) were
acquitted, the others including Sher Zaman@ Shabbir (A-13),
Zahur Ahmad Qasid (A-17), Bilal Ahmad Kawa (A-18) or
Athruddin@ Athar Ali (A-19) were never brought to the trial as
H they were shown to be absconding. At this juncture, we cannot
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 147
DELHI [V.S. SIRPURKAR, J.]
ignore the evidence of Kashi Nath (PW-46), an employee of A
MTNL (PW-46), who deposed that telepho.ne number 3969561
was installed by him in premises No. 5123 which was the office
of Sher Zaman @ Shabbir (A-13). Very significantly, this
number was also found in the call det~ils of the appellant having
Mobile No. 9811278510. This version of Kashi Nath (PW-46) B
was corroborated by Om Prakash (PW-47). Again ldrish (PW-
74) deposed that the cash of Rs.1,01,000/- was recovered from
the shop/office of Sher Zaman@ Shabbir (A-13), which shop/
office was raided pursuant to the statement of the appellant.
60. First, the fact that Sher Zaman@ Shabbir (A-13), Zahur C
Ahmad Qasid (A-17) and Bilal Ahmad Kawa (A-18) being
absconding, does not and cannot in any manner establish the
defence case to the effect that these persons were never
concerned with Hawala money through the appellant or
otherwise. As regards the Sher Zaman@ Shabbir (A-13), the D
investigating agency could not have reached the shop of Sher
Zaman @ Shabbir (A-13) unless the claim of the investigating
agency that they found his number in the diary is true. The fact
of the matter is that the investigating agency did reach his shop
as mentioned in the earlier part of this judgment. Therefore, it E
cannot be disputed that the appellant had some connection with
Sher Zaman @ Shabbir (A-13) who was then established to
be an Afghan national and who remained absconding till date.
The learned counsel for the defence also argued that Nazir
Ahmad Qasid (A-3) and Farooq Ahmed Qasid (A-4) have been F
acquitted by the High Court and that there is no appeal by the
State against their acquittal. That may be true, but that would
be a separate subject. At least prima facie, that does not help
the appellant at all. We will go through the reasons for acquittal,
after we have considered the evidence regarding the bank G
transactions. We will consider this evidence now in details.
61. It has come in the evidence that the appellant opened
an account on 13.9.2000 with HDFC Bank, New Friends
Colony, New Delhi, where his address was given as 102, Kaila
H
148 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Bhatta, Ghaziabad. The other address was given as 18, Gaffur
Nagar, Okhla, New Delhi. The document on the basis of which
this account was opened was the driving license of the
appellant. The first thing that comes to our mind is that both
these addresses were false. While the appellant had never
B stayed at 102, Kaila Bhatta, Ghaziabad, his address 18, Gaffur
Nagar, Okhla, New Delhi was totally incorrect. It has come by
way of evidence of Sushil Malhotra (PW-210) that on the cash
memo of the fees, the appellant wrote his address as 18,
Gaffur Nagar, Okhla, New Delhi. In fact, the appellant had never
c resided on this address, the date of the cash memo being
28.3.2000. The prosecution had also examined Iqbal Hassan
(PW~79) who had confirmed that no such person has ever lived
in this house, particularly, on the relevant dates. Insofar as his
learning license is concerned, the appellant has given his
address as B-17, Jangpura. On that basis, he got his learning
0
license from Sarai Kale Khan Authority. He has never stayed
in this address either. It has also come in the evidence of
Inspector S.K. Sand (PW-230) that learner's license bearing
address B-17, Jangpura was fake and he further asserted that
the area of Jangpura never falls under the authority of RTO,
E Sarai Kale Khan. There is a report of the Motor licensing
authority vide Exhibit PW-230/C that the learner's license was
fake. All this was confirmed by Narayan Singh (PW-6), UDC,
Sarai Kale Khan Authority and Ajit Singh Bajaj (PW-52). Insofar
as driving license is concerned, there is evidence of Hazarul
F Hasan, RTO Office, Ghaziabad that this driving license was
issued from Ghaziabad in favour of the appellant through Ms.
Mamta Sharma (PW-16), ARTO vide Exhibit PW-13/A which
is a copy of the driving license and Exhibit PW-22/C which is
also a copy of the driving license. Significantly enough, for this,
G the address was shown to be 102, Kaila Bhatta, Ghaziabad.
This was for reason that unless the appellant had shown himself
a resident of Ghaziabad, he could not have got the driving
license issued through Ghaziabad authority. Therefore, his
address found on the driving license as 102, Kaila Bhatta,
H Ghaziabadwas itself a false address. This address was on the
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 149
DELHI [V.S. SIRPURKAR, J.]
basis of the ration card which was a fake ration card in the A
name of appellant's wife Bano, who was allegedly residing at
102,. Kaila Bhatta, Ghaziabad. All this was proved to be false
by Azad Khalid (PW-1), Yashpal Singh, Supply Inspector,
Department of Food and Supply, Ghaziabad (PW-2) and Rajbir
Singh, Area Rationing Officer, Food and Civil Supply B
Department, Ghaziabad (PW-3). There is another ration card
which he got prepared in which his wife's name was shown as
i Mrs. Bano alongwith children. The address of this ration card .
1
was shown to be F-12/12, Batla House, Okhla, New Delhi,
where he never resided. Therefore, on the basis of his driving c
i license, when he got his HDFC Bank account opened, it is
obvious that he had given false information, much less
regarding his residential address which was also mentioned
on his driving license and which was not true.
62. The prosecution proved 9 cash deposit slips of D
Grindlays Bank, the total amount being Rs.29,50,000/-.
··According to the prosecution, these were in appellant's
handwriting while depositors' name has been mentioned as'
1
Aslam, Salim Khan, R.K. Traders and Rashid. We have already
discussed about the fake residential address given by the E
appellant while opening the 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 upto F
14.12.2000, on various dates, amounts like 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. G
Corroborating evidence to the evidence of Sanjeev Srivastava
(PW-22) is in the shape of Rishi Nanda {PW-23) and Inspector
Ved Prakash (PW-173). Ved Prakash (PW-173) had found the
ration· card in the name of the appellant, his driving license,-
cheq ue book of HDFC Bank in his name, Passport of H
150 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Rehmana (wife of the appellant), a cheque book of State Bank
of India, a digital diary and a personal diary and some other
documents. From these, Ved Prakash (P.W-173) found that
there were three accounts, namely, in Standard Chartered
Bank, Connaught Place, New Delhi in the names of M/s. Nazir
B & Sons, Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa
(A-18) which had account numbers 32263962, 28552609 and
32181669 respectively. He also detected account number
0891000024322 in HDFC Bank which was opened with the
help of the driving license. Another witness S.I. Harender Singh
c (PW-194) had prepared the memo of house search. P.R.
Sharma (PW-9), who was from State Bank of India, deposed
that account no. 5817 was belonging to Rehmana Yusuf Farukhi
in which amounts of Rs.50,000/-, Rs.1,50,000/-, Rs.52,500/-
and Rs.30,000/- were deposited. He proved the relevant
D deposit slips also. Another witness O.P. Singh (PW-64)
corroborated the evidence of P.R. Sharma (PW-9). The most
important link with the HDFC accoi.:.1t 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
E Bank of the appellant, 9 deposit slips of Standard Chartered
Grindlays Bank as also deposit slips of the State Bank of India
account of Rehmana Yusuf Farukhi bore the handwriting of the 1
appellant. This clinches the issue about the account opened in
HDFC Bank. It is to be noted that there were three accounts in
F Standard Chartered Grindlays Bank in the name of Mis. Nazir
& Sons, Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa
(A-18) which had account numbers 32263962, 28552609 and
32181669 respectively. The investigating agency collected the
documents from Standard Chartered Grindlays Bank including
G 9 cash deposit receipts as also documents regarding the
account numbers 32263962, 28552609 and 32181669. 9 cash
deposit slips are purportedly in the name of Aslam, Salim
Khan, R.K. traders and Rashid and all these have been proved
to be in the handwriting of the appellant. We have already
H discussed about the account of HDFC Bank which was opened
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 151
DELHI [V.S. SIRPURKAR, J.]
on the basis of the driving license having a false address. We . A
have also referred to the bank documents in respect of .
Rehmana Yusuf Farukhi and the amounts having been
deposited in her account and also the pay-in (deposit) slips in
respect of her accounts. It must be noted that at least one
document out of these being questioned document No. 308 B
has been proved to be in the handwriting of the appellant which
has been proved by the expert evidence of Dr. M.A. Ali (PW-
216). We have already referred to the evidence of Ved Prakash
(PW-173) and S.I. Harender Singh (PW-194) about the
amounts belonging to the appellant and about the amounts paid c
by the appellant to the tune of Rs.29,50,000/- in the accounts
of M/s. Nazir & Sons, Farooq Ahmed Qasid (A-4) and ~ilal
Ahmad Kawa (A-18), account numbers of which have already
been mentioned above and the fact that 9 deposit slips were
in the handwriting of the appellant. It has come in the evidence
0
of Subhash Gupta (PW-27) that he had handed over photocopy
. of the account opening forms ofthe three accounts mention~d
above, in which Rs.29,50,000/- were deposited by the
appellant, to Inspector Ved Prakash (PW-173). We then have
the evidence of B.A. Vani, Branch Manager, Standard
Chartered Grindlays Bank, Si:inagar, who claimed that three E
bank accounts mentioned above were opened during his tenure
and in his branch belonging to Mis. Nazir & Sons, Farooq
Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18). He pointed
out that the amounts which were deposited in these accounts
(by the appellant) were further distributed by 40 original cheques F
by various persons. He referred to 3 cheques of Farooq
Ahmed Qasid (A-4), 29 c~~ques of M/s. Nazir & Sons and 8
cheques of Bilal Ahmad Kawa (A-18). There is evidence of
Kazi Shams, SHO, Sadar, Srinagar (PW-99) who had
recovered the cheque book of M/s. Nazir & Sons at the instance G
of Nazir Ahmad Qasid (A-3) and Farooq Ahmed Qasid (A-4).
We also have the evidence of Mohd. Riaz Ahmed, PA to OM,
Badgam, J&K. He deposed that there was a detention order
passed against Nazir Ahmad Qasid (A-3) and Farooq Ahmed
Qasid (A-4). In the detention order, it was stated that both these H
152 SUPREME COURT REPORTS (2011) 10 S.C.R.
A accused persons were connected with a foreign mercenary
named Abbu Bilal and they agreed to receive the fund from
'LeT' outfit in separate account opened at ANZ Grindlays Bank,
Srinagar and had also received the first installment of Rs.3
lakhs in the account of Bilal Ahmad Kawa (A-18), which money
B was withdrawn by him. The evidence of Hawa Singh (PW-228)
is to the effect that he had received 40 cheques of the above
mentioned accounts, which evidence was corroborated by S.I.
Amardeep Sehgal (PW-227) and S.I. Himmat Ram (PW-45).
It was Inspector Pratap Singh (PW-86) who had found the
c account numbers of M/s. Nazir & Sons, Farooq Ahmed Qasid
(A-4) and Bilal Ahmad Kawa (A-18) from the diary seized from
the -appellant. Further, the evidence of Sanjeev Srivastava,
Manager, HDFC Bank (PW-22) went on to establish that it was
the appellant who had opened the bank account in the. New
D Friends Colony Branch of the HDFC Bank on the basis of his
driving license, in which an amount of Rs.6 lakhs was deposited.
This evidence was corroborated by Rishi Nanda (PW-23). P.R.
Sharma (PW-9), Manager-SB!, Ghazipur spoke about the
amounts received in the bank account of Rehmana Yusuf
Farukhi. This evidence was corroborated by O.P. Singh,
E Manager-SB!, Ghazipur (PW-64). It has already been
mentioned that as per the evidence of Dr. M.A. Ali (PW-216),
the account opening form of HDFC Bank, New Friends Colony
Branch and 9 deposit slips of Standard Chartered Grindlays
Bank, Connaught Place, New Delhi as also the deposit slip of
F State Bank of India account of Rehmana Yusuf Farukhi bore
the handwriting of the appellant. The report is Exhibit PW-216/
A at page Nos. 1-11.
63. The argument of Ms. Jaiswal, learned counsel
G appearing on behalf of the appellant, that Nazir Ahmad Qasid
(A-3) and Farooq Ahmed Qasid (A-4) have already been
acquitted, is of no consequence. We may point out that there
is absolutely no explanation by the appellant either by way of
cross-examination of the witnesses or by way of his statement
H under Section 313 Cr.P.C. as to where all these amounts had
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 153
DELHI [V.S. SIRPURKAR, J.]
come from and why did he deposit huge amounts in the three A
accounts mentioned above. Rs.29,50,000/- is not an ordinary
sum. Also, there is no evidence that in his account in HDFC
Bank, the appellant has Rs.6 lakhs. Further very sizeable
amount is shown to have been paid to Rehmana Yusuf Farukhi
. in her account in the State Bank of India. How did the appellant B
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 ostensible
means of livelihood. It would have to be held that the appellant
was dealing with huge sums of money and he has no c
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. It is obvious
that the appellant was a very important wheel in the whole
machinery which was working against the sovereignty of this D
country. All this was supported with the fact that 9 deposit slips,
the bank forms for opening the accounts, the slip through which
amount was deposited in the account ,of Rehmana Yusuf
Farukhi, were all proved to be in the handwriting of the
appellant. We have absolutely no reason to reject the evidence
of handwriting expert. All this suggests that the appellant was E
weaving his web of terrorist activities by taking recourse to
falsehood one after the other including his residential address
and also creating false, documents.
64. Ms. Jaiswal, learned defence counsel argued that F
merely on the basis of the evidence of the hand writing expert,
no definite conclusion could be drawn that it was the appellant
who deposited all this money into the three accounts of Nazir
Sons, Bilal Ahmad Kawa and Faruk Ahmad Qasid. She also
urged that accused Nos. 3 and 4 were acquitted by the Court. G
We have already clarified earlier that the acquittal of Qasid
would be of no consequence for the simple reason that they
may have been given the benefit of doubt regarding their
knowledge about the said amounts being deposited in their
accounts or for that matter their dispatch for the terrorist H
154 SUPREME COURT REPORTS [2011] 10 S.C.R.
A activities. Some more evidence .would have been necessary
for that purpose. It is undoubtedly true that there should have
been an appeal against their acquittal. However, that does not
' absolve the appellant completely since he had to explain as to
where he was receiving money from for putting in the accounts
8 of Oasid. This circumstance of the appellant in failing to explain
the huge amount and its source would be of immense
importance and would go a long way to show that the accused
was receiving huge amounts from undisclosed sources.
65. A very lame explanation has been given about the
C amounts in the account of Rehmana. It was suggested that the
monies were gifts from relatives on account of her marriage.
Her mother DW-1 also tried to suggest the same. The
explanation is absolutely false for the simple reason that there
is no proof about such a plea. Everything about this marriage
D is suspicious. It is only on 8.12.2000 that the accused claims
to have got married to Rehmana. It was under mysterious
circumstances and in a secret manner that the accused got
married to Rehmana. Dr. M.A. Ali (DW-216) has been
examined by the prosecution as the hand writing expert who
E examined two pay-in-slips, namely, Exhibits PW-173/F and
PW-173/G. The other documents which were given for
examination were 0 29, 030, 0308, 0 30C, Q 31 and 032
which are Exhibit PW 9/C to F. Out of these, some of the
documents were seized from the bank vide seizure memo
F Exhibit PW 9/A. Document Nos.Mark Q 30 and 30 A and Mark
308 have been proved to be particularly filled in the hand writing
of Mohd. Arif @ Ashfaq and partly in hand writing of Rehmana.
This suggests the amount of Rs.15,000/- has been deposited
in the account of Rehmana on 21.11.2000. Similarly, document
G marked Q-6, Q-6A and Q-68 were also proved to be in the
hand writing of the appellant and partly in hand writing of
Rehmana. Accused has no explanation to offer. There can be
no dispute that the accused had been depositing huge amount
into the account of Rehmana. Considering the dates on which
H the deposits were made, the argument of the learned counsel
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 155
DELHI [V.S. SIRPURKAR, J.]
that she received small amounts by way of gifts for her marriage A
which had never taken place till then, has to fall to ground.
Again, accused Rehmana was acquitted as the prosecution
was not able to prove that she had been a party to the
conspiracy or knew about the conspiracy. That however, cannot
absolve the appellant. The reluctance on the part of the B
prosecution to file appeal against her acquittal can also not help
the accused. It is strange that a person who is not even an
Indian National and is a citizen of Pakistan got into touch with
this lady and got married to her on 8.12.2000 and before that
he should be depositing huge amounts into the accounts of C
Rehmana. This becomes all the more strange that Rehmana
had no reasonable explanation for receiving these amounts.
We, therefore, view this circumstance as an incriminating
circumstance. We entirely agree with the High Court as well as
the trial Court for the inferences drawn in respect of these D
deposits made by the accused.
66. Ms. Jaiswal then severely criticized the finding of the
Courts below accepting the disclosures made by the appellant
and the discoveries made pursuant thereto. The main discovery
which the learned counsel assailed was the statement in E
pursuance of which the whereabouts of Abu Shamal were made
known to the investigating agency. The learned counsel urged
that no disclosure statement was recorded immediately after
the apprehension of the accused. She, therefore, urged that it
could not have been held by the Courts below that the F
information regarding tile Batla house and Abu Shamal being
a terrorist in hiding on that address proceeded from the
appellant or that he had the knowledge thereof. The learned
counsel basically rests her contention on the fact that before
accepting the fact that the accused gave some information in G
pursuance of which some discoveries were made, the
investigating agency must record a statement and in the
absence of such a statement, discovery cannot be attributed
to the accused. Our attention was drawn to the evidence of PW-
229 who deposed that a statement was recorded immediately H
156 SUPREME COURT REPORTS [2011) 10 S.C.R.
""
A on the apprehension of the appellant. The date mentioned on
Exhibit PW 148 E is 26.12.2000. According to the learned
counsel if the accused was apprehended on the early night of
25.12.2000 then the date on Exhibit PW 148 E could not have
been 26.12.2000. The counsel further says that therefore the
8 Batla house encounter was prior to recording of the disclosure
statement of the accused. The contention is not correct. It will
be seen that immediately after the apprehension the appellant
was not formally arrested, though he was in the custody of the
investigating team. The learned counsel pointed out that the
C witness's statement was that the accused was "arrested" and
his disclosure statement was recorded. PW-229 had
undoubtedly stated so. There is other evidence on record that
his statement was recorded. It is indeed in that statement which
is recorded that he disclosed about his involvement in the Red
Fort shoot out, the role of Abu Shamal and about an AK-56 rifle.
D The witness went on to state further that the accused disclosed
that his associate Abu Shamal was staying in the hide out at
house No. G-73, first floor, Batla House, Okhla. He also
disclosed that he was having weapons and grenades and he
also disclosed that Abu Shamal is a trained militant of LeT and
E member of suicide squad. Indeed, had this information not
been disclosed immediately after his apprehension, there was
no question of the investigating agency coming to know about
the whereabouts of Abu Shamal. Indeed, in pursuance of this
information given the investigating team did go to the
F aforementioned address and an encounter did take place
wherein Abu Shamal was killed and large amount of
ammunition and arms were found at that place. The learned
counsel urged that in the absence of any "recorded statemenr
immediately after his apprehension, such disccivery shoul~ not
G be attributed to the appellant. For the sake of argument, we will ,
assume that· no statement was recorded prior to Batla House
incident. The learned counsel secondly urged that if admittedly
the accused appellant was formally arrested on the next day
i.e. on 26th, then it would be axiomatic that he was not in the
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 157
DELHI [V.S. SIRPURKAR, J.]
custody of the police and, therefore, all that evidence should A
be rendered as inadmissible.
67. It is indeed true that for normally proving any such
information and attributing the same to the accused the said
accused must be in the custody of the prosecution and then B
when he discloses or offers to disclose any information, his
statement is recorded by the investigating agency for lending
credibility to the factum of disclosure as also exactitude. In
pursuance of such information, the investigating agency
proceeds and obtains the material facts and thereafter executes C
a Panchnama to that effect. We have already referred to this
question in the earlier part of our judgment that it was indeed
a very tense situation requiring extreme diligence on the part
of the investigating agency whereby the investigating agency
could not afford to waste a single minute and was required to
act immediately on the receipt of the information from the D
appellant. This was all the more necessary because the
investigating agency were dealing with an extremely dangerous
terrorist causing serious danger to the safety of the society. We
do not see anything wrong in this approach on the part of the
investigating agency. The only question is whether the E
investigating agency discovered something in pursuance of the
information given by the accused. The events which followed
do show that it is only in pursuance of, and as a result of the
information given by the accused that the investigating agency
zeroed on the given address only to find a dreaded terrorist like F
Abu Shamal holed up in that address with huge ammunition and
the fire arms. If that was so, then the question is as to whether
we can reject this discovery evidence merely because, as per
the claim of defence, a formal statement was not recorded and
further merely because a formal arrest was not made of the G
accused.
68. Firstly speaking about the formal arrest for the accused
being in custody of the investigating agency he need not have
been formally arrested. It is enough if he was in custody of the 1-i
158 SUPREME COURT REPORTS [2011] 10 S.C.R.
A investigating agency meaning thereby his movements were
under the control of the investigating agency. A formal arrest
is not necessary and the fact that the accused was in effective
custody of the investigating agency is enough. It has been amply
proved that the accused was apprehended, searched and taken
B into custody. In that search the investigating agency recovered
a pistol from him along with live cartridges, which articles were
taken in possession of the investigating agency. This itself
signifies that immediately after he was apprehended, the
accused was in effective custody of the investigating agency.
c 69. Now coming to the second argument of failure to
record the information, it must be held that it is not always
necessary. What is really important is the credibility of the
evidence of the investigating agency about getting information/
statement regarding the information from the accused. If the
D evidence of the investigating officer is found to be credible then
even in the absence of a recorded statement, the evidence can
be accepted and it could be held that it was the accused who
provided the information on the basis of which a subsequent
discovery was made. The question is that of credibility and not
E the formality of recording the statement. The essence of the
proof of a discovery under Section 27, Evidence Act is only that
it should be credibly proved that the discovery made was a
relevant and material discovery which proceeded in pursuance
of the information supplied by the accused in the custody. How
F the prosecution proved it, is to be judged by the Court but if
the Court finds the fact of such information having been given
by the accused in custody is credible and acceptable even in
the absence of the recorded statement and in pursuance of that
information some material discovery has been effected then the
G aspect of discovery will not suffer from any vice and can be
acted upon. Immediately after the apprehension of the appellant
he spilled the information. In pursuance of that information the
investigating agency acted with expediency and speed which
in the circumstances then prevailing was extremely necessary
H nay compulsory. Any investigating agency in such sensational
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 159
DELHI [V.S. SIRPURKAR, J.]
matter was expected not to waste its time in writing down the A
Panchnama and memorandum. Instead they h13d to be on a
damage control mode. They had a duty to safeguard the
inter:,ests of the society also. Therefore, if the investigating
agency acted immediately without wasting its time in writing
memoranda of the information given by the accused, no fault 8
could be found. Ultimately, this timely and quick action yielded
results and indeed a dreaded terrorist was found holed up in
the address supplied by the appellant-accused with sizeable
ammunition and fire arms. We do not, therefore, find any thing
wrong with the discovery even if it is assumed that the C
information was not "recorded" and hold that immediately after
his apprehension, the accused did give the information which
was known to him alone in pursuance of which a very material
discovery was made. The learned Solicitor General relied on
a reported decision in Suresh Cf'landra Bahri v. State of Bihar D
[Cited supra]. In that case, no discovery statement was
recorded by the investigating officer PW -59 Rajeshwar Singh
of the information supplied by the accused to him. Further, no
public witness was examined by the prosecution to support the
theory that such an information was given by the accused to
him in pursuance of which some material discovery was made. E
This Court, however, in spite of these two alleged defects,
accepted the evidence of discovery against the accused on the ·
basis of the evidence of Rajeshwar Singh PW-59. The Court
mentions:
F
"It is true that no disclosure statement of Gurbachan Singh
who is said to have given information about the dumping
of the dead body under the hillock of Khad gaddha
dumping gfdound was recorded but there is positive
statement of Rajeshwar Singh, PW 59, Station House G
Officer of Chutia Police Station who deposed that during
the course of investigation Gurbachan Singh Led hhim to
Khad Gaddha hillock along with an Inspector Rangnath
Singh and on pointing out the place by Gurbachan Singh
he got that place unearthed by labourers where a piece H
160 SUPREME COURT REPORTS [2011) 10 S.C.R.
A of blanket, pieces of saree and rassi were found which
were seized as per seizure memo Ext.5. He further
deposed-that he had tak~n two witnesses along with him
to the place where these articles were found. Rajeshwar
Singh PW 59 was cross-examined with regard to the
B identity of the witness Nand Kishore who is said to be
present at the time of recovery and seizure of the articles
as well as with regard to the identity of the articles seized
vide paragraphs 18, 21 and 22 of his deposition but it may
be pointed out that no cross-examination was directed with
regard to the disclosure statement made by the appellant
c Gurbachan Singh or on the point that he led the police party
and others to the hillock where on hi pointing out, the place
as unearthed where the aforesaid articles were found and
seized. It is true that no public witness Was examined by
the prosecution in this behalf but the evidence of Rajeshwar
D Singh PW59 does not suffer from any doubt or infirmity with
regard to the seizure of these articles at the instance of
the appellant Gurbachan Singh which on Tl Parade were
found to be the articles used ir. wrapping the dead body
of Urshia."
E
The court then stated in paragraph 71 that the two essential
requirements of application of Section 27 of Evidence Act are
that (1) the person giving information was accused of any
offence; and (2) he must also be in police custody. The Court
F then went on to hold that the provisions of Section 27 of the
Evidence Act are based on the view that if the fact is actually
discovered in consequence of information given, some
guarantee is afforded thereby that the information is true and
consequently the said information can safely be allowed to be
G given in evidence because if such an information is further
fortified and confirmed by the discovery of articles or the
instrument of crime and which leads to the belief that the
information about the confession made as to the articles of
crime cannot be false. This is precisely what has happened in
H the present case. Indeed, the appellant was accused of an
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 161
DELHI [V.S. SIRPURKAR, .J.]
i. .
offence and he was also in the police custody. We have already A
, explained the ramifications of the term "being in custody". This
judgment was then followed in Vikram Singh & Ors v. State of
Punjab [2010 (3) SCC 56) when again the Court reiterated that
there was no need of a formal arrest for the applicability of
Section 27. The Court therein took the stock of the case law B
on the subject and quoted from the decision of State of U.P. v.
Deoman Upadhyaya [AIR 1960 SC 1125) regarding the
principles involved in Sections 24 to 30, Evidence Act and
more particularly Sections 25, 26 and 27 of the Evidence Act.
The Court ultimately held in case of Deoman Upadhyay (cited c
supra) that the expression 'accused of any offence' in Section
27 as in Section 25 is also descript'ive of the person concerned
i.e. against a person who is accused of an offence. Section 27
renders provable certain statements made by him while he was
in the custody of a police officer. Section 27 is founded on the D
principle that even though the. evidence relating to the
confessional or other statements made by a person while he
is in the custody of the police officer, is tainted and, therefore,
inadmissible if the truth of the information given by him is
assured by the discovery of a fact, it may be presumed to be
untainted and, therefore, declared provable insofar as it E
distinctly relates to the fact thereby discovered. The Court also
pointed out the distinction between Sections 27 and 26,
Evidence Act in para 40 of the judgment of Vikaram Singh
(cited supra). The Court came to the conclusion that the
principle t~at Section 27 would be provable only after the formal F
arrest under Section 46 (1) of the Code could not be accepted.
It may be mentioned here that even in the decision in State
(NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [2005 (11)
SCC 600] relying on the celebrated decision of Pulukuri
Kottaya v. King Emperor[AIR 1947 PC 67), the Court held "we G
are of the view that Pulukuri Kottaya (cited supra) case is an
authority for the proposition that 'discovery of fact' cannot be
equated to the object produced or found. It is more than that.
The discovery of fact arises by reason-of the fact that the
. information given by the accused exhibited the knowledge or H
162 SUPREME COURT REPORTS [2011) 10 S.C.R.
A the mental awareness of the informant as to its existence at
a particular place". This is precisely what has happened in this
case. It is only because of the discovery made by the appellant
that Abu Shamal with the arms and ammunition was found at
the address disclosed by the appellant.
B
70. Ms. Kamini Jaiswal, learned counsel appearing for the
appellant also severely attacked the discovery made and
recorded on the morning of 26.12.2000. By that discovery, the
appellant had given the information about the whole plot, with
which we are not concerned, but in addition to that, he had
C showed his readiness to point out the AK-56 rifle which was
thrown immediately after the attack, behind the Red Fort. In
pursuance of that, the appellant proceeded alongwith the
investigating party and then from the spot that he bad shown,
AK-56 rifle was actually found. Even a bandolier was found
D containing hand grenades. The learned counsel argued that
this was a farcical discovery and could not be attributed to the
. appellant, as in fact, immediately after the attack on
22.12.2000, the police party had covered the whole area not
only during the darkness of the night on 22.12.2000, but also
E in the following morning. She pointed out that sniffer dogs were
also used at that time for searching the suspected terrorists
either hiding out or leaving any trace. From this, the learned
counsel argued that it is impossible that the investigating
agency could not have seen the said rifle and it was impossible
F that such an important article like AK-56 rifle and bandolier
would go unnoticed by the investigating agency. She, tt.ierefore
pointed out that this was nothing but a poor attempt on the part
of the investigating agency to plant the rifle and to attribute the
knowledge of that rifle falsely to the appellant. In the earlier part
G of the judgment, we have already discussed the evidence
regarding this discovery where we have referred to the evidence
of Inspector Hawa Singh (PW-228), S.I. Satyajit Sarin (PW-218)
and SHO Roop Lal (PW-234), who all supported the discovery.
This discovery was recorded vide Exhibit PW-148/E. S.I.
H Satyajit Sarin (PW-218) corroborated the evidence of Inspector
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 163
DELHI [V.S. SIRPURKAR, J.]
Hawa Singh (PW-228) and prepared a seizure memo (Exhibit A
PW-218). S.I. Amardeep Sehgal (PW-227) also corroborated
the version given by Inspector Hawa Singh (PW-228) and S.I.
Satyajit Sarin (PW-218). Two other witnesses, namely, S.K.
Chadha (PW-125) and N.B. Bardhan (PW-202) were also
present who inspected the AK-56 rifle found at the instance of B
the appellant. The learned counsel pointed out that if the sniffer
dogs were taken there for searching, it would be impossible
that the investigating agency would not find the AK-56 rifle which
was lying quite near to the spot from where the chit and the
currency notes were picked up by the investigating agency. In c
the first place, there is definite evidence on record that the
sniffer dogs were not taken to the spot from where the
polythene packet containing chit and currency notes was
recovered. Inspector Hawa Singh (PW-228) is the witness who
specifically spoke about the dog squad not having been taken D
to that spot. We are not impressed by this argument that the
investigating agency had already seen the said rifle but had
chosen to plant it against the appellant. Even the evidence of
SHO Roop Lal (PW-234) is to the effect that dog squad was
not taken to the back of the Red Fort. SHO Roop Lal (PW-234)
also stated that the Sunday Bazar was also not allowed to be E
held on 22.12.2000. We have no reason to discard this
evidence. That apart, we do not see any reason why the
investigating agency would plant the aforementioned AK-56
rifle, bandolier and hand grenades therein, without any rhyme
or reason. True, they were interested in the investigation, but F
that does not mean that they were out to falsely implicate the
appellant. This is apart from the fact that police officers could
not have procured a foreign made AK-56 rifle and the foreign
made grenades on their own to be foisted against the appellant.
No such cross-examination appears to have been done on G
those police officers. It is also difficult to accept the argument
that anybody could have found the rifle which was lying in the
thick bushes. There is evidence on record that the backside of
the Red Fort had substantially thick bushes. Once the police
officers had found the chit and the currency notes which gave H
164 SUPREME COURT REPORTS [2011] 10 S.C.R.
A them a definite direction to proceed in their investigation, it was
not likely that the police officers would visit that spot again and
that is what had happened. We are also of the opinion that this
discovery was fully proved, in that, the appellant had given the
information that it was Abu Shamal @ Faisal who had thrown
B that rifle in his bid to escape from the spot where the bloody
drama was performed, resulting in death of three persons. Even
earlier to this discovery, Abu Shamal @ Faisal was eliminated
in encounter and he was found with substantial quantity of
firearm and ammunition. We, therefore, see no reason to
c accept the defence contention that this discovery was a fake
discovery.
71. Insofar as third discovery was concerned, it was of the
hand grenades, which the appellant discovered on 1.1.2001.
The learned counsel did not even attempt to say that there was
D anything unnatural with this recovery except that the appellant
was all through in the custody and could have been treated
roughly for effecting this discovery of the grenades. There is
nothing to support this version. Thus, the discovery statements
attributed to the appellant and the material discovered in
E pursuance thereof would fully show the truth that the appellant
was involved in the whole affair. The discovery of hand
grenades behind the computer centre near Jamia Millia lslamia
University was very significant. So also the discovery of the
shop of Sher Zaman@ Shabbir (A-13), the Hawala dealer, as
F also the documents discovered therefrom, show the involvement
of the appellant in the whole affair. In this behalf, we fully
endorse the finding of the High Court. About these discoveries,
one another complaint by the learned defence counsel was that
no public witnesses were associated. In fact, there is ample
G evidence on record to suggest that though the investigating
agency made the effort, nobody came forward. This was all the
more so, particularly in case of the recovery of pistol from the
appellant as also the discoveries vide Exhibit PW-148/E.
72. We have seen the evidence as also the so-called
H
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 165
DELHI [V.S. SIRPURKAR, J.]
explanations given by the appellant in his statement under A
Section 313 Cr.P.C. We are of the clear opinion that the
detailed statement which he gave at the end of the examination
was a myth and remained totally unsubstantiated. We have also
considered the defence evidence of Ms. Qamar Farukhi (DW-
1) and we are of the clear opinion that even that evidence has B
no legs to stand. Ms. Qamar Farukhi (DW-1) spoke about the
marriage of her daughter Rehmana Yusuf Farukhi to the
appellant. She deposed that the appellant had expressed his
desire to marry Rehmana after reading the matrimonial
advertisement. She asserted that her relatives contributed for c
the marriage and she had continued giving her money to
Rehmana. There is nothing much in her cross-examination
either. She admitted that moneys were paid into the account
of Rehmana. She admitted that it was told to the appellant that
Rehmana was suffering from Spinal Cord problem and was not D
fit for consummation of marriage. It is really strange that inspite
of this, the appellant should have got married to Rehmana. Very
strangely, the lady completely denied that she even knew that
the appellant was a resident of Pakistan. Much importance,
therefore, cannot be given to this defence witness. The High E
Court has held proved the following circumstances against the
appellant:-
"(a) On the night of 22-12-2000 there was an incident
of firing inside the Lal Quila when some intruders
had managed to enter that area of Lal Quila where F
the Unit of 7 Rajputana Rifles of Indian Army was
stationed.
(b) In that incident of shooting the intruders had fired
indiscriminately from their AK-56 rifles as a result G
of which three army jawans received fire-arm
injuries and lost their lives,
(c) The death of three army jawans was homicidal.
(d) Immediately after the quick reaction team of the H
166 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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 boundary
wall of Lal Quila towards the Ring Road side and
when the place of occurrence was searched by the
B armymen many assault rifle fired cartridge cases
were recovered from the place of occurrence.
(e) Immediately after the intruders who had resorted to
firing inside the army camp had escaped from
there calls were made by someone on the
c telephones of two BBC Correspondents one of
whom was stationed at Sri Nagar and the other one
was stationed at Delhi office of BBC and the caller
had informed them about the shooting incident
inside the Lal Quila and had also claimed the
D 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.
E (f) On the morning of 23-12-2000 one AK-56 rifle was
recovered from a place near Vijay Ghat on the Ring
Road behind the Lal Quila.
(g) On 23-12-2000 when the policemen conducted
search around the Lal Quila in the hope of getting
F some clue about the culprits they found one piece
of paper lying outside the Lal Quila near the rear
side boundary wall towards Ring Road side and on
that piece of paper one mobile phone number
9811278510 was written.
G
(h) The mobile phone number 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
H had claimed the responsibility for that incident and
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 167
DELHI [V.S. SIRPURKAR, J.]
had informed them that the incident was the job of A
Lashkar-e-Toiba.
(i) The aforesaid mobile phone number found written
on a piece of paper lying behind the Lal Quila had
led the police up to flat no. 308-A Ghazipur, New
B
Delhi where accused Mohd. Arif @ 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 25/26-12-2000 one
pistol and some live cartridges were recovered
from his possession for which he did not have any c
license.
0) At the time of his arrest in case FIR No. 688/2000
one mobile phone having the number 9811278510
was recovered from his possession and it was the D
same mobile number from which calls had been
made to the two BBC correspondents for informing
them about the incident and Lashkar-e~Toiba being
responsible for that incident.
E
(k) Immediately after his apprehension accused Mohd.
Arif @ Ashfaq admitted his involvement in the
shooting incident inside Lal Quila and also
disclosed to the police about his another hide-out
at G-73, Batla House, Muradi Road, Okhla, New
Delhi and pursuant to his disclosure the police had F
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 @
Ashfaq to be one Abu Shamal @ Faizal, died G
because 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.
H
168 SUPREME COURT REPORTS [2011) 10 S.C.R.
A (I) Accused Mohd. Arif @ Ashfaq while in police
custody had also disclosed to the police that one
assault rifle had been thrown near Vijay Ghat after
the incident. The police had already recovered one
AK-56 rifle from Vijay Ghat on ~he morning of 23-
B 12-2000. Accused Mohd. Arif@ Ashfaq had thus
the knowledge about the availability of that AK-56
rifle at Vijay Ghat.
(m) Accused Mohd. Arif @ Ashfaq had also got
recovered one AK-56 rifle and some ammunition
c from behind the Lal Quila on 26-12-2000.
(n) Accused Mohd. Arif @ Ashfaq had also got
recovered three hand grenades from some place
behind his computer centre in Okhla on 1-1-2001
D 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
armymen after the intruders had escaped from
E
there were examined by the ballistic expert along
with the AK-56 rifle which was recovered at the
instance of accused Mohd. Arif @ Ashfaq from
behind the Lal Quila on 26-12-2000 and the AK-56
rifle which was recovered from Vijay Ghat on 23-
F 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
behind Red Fort and some had been fired from the
other rifle which was recovered from Vijay Ghat.
G
(p) Appellant - accused Mohd. Arif @ Ashfaq was a
Pakistan national and had entered the Indian
territory illegally.
(q) After making illegal entry into India appellant -
H -
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 169
DELHI (V.S. SIRPURKAR, J.]
accused Mohd. Arif @ Ashfaq had been A
representing to the people 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 B
channels.
(r) Accused Mohd. Arif @ Ashfaq had obtained a
forged ration card Ex. PW-164/A wherein not only
his house number mentioned was not his correct C
address but even the name of his wife shown
therein was not Rehmana Yusuf Faukhi. He had
also forged tiis learner driving license Ex. PW-13/
Caswell as one document Ex. PW-13/E purporting
to be a photocopy of another ration card in his
name with his residential address of Ghaziabad D
where he admittedly never resided and he
submitted that document with a the Ghaziabad
Transport Authority for obtaining permanent driving
license. In the learner driving license also he had
shown his residential addresses where he had E
never actually resided. All that he did was to
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 F
some expired before they could be tried."
73. In addition to these circumstances, there is another
circumstance that a message was intercepted by the BSF
while Exhibit PW 162/A and proved by PW-162 Inspector J.S. G
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
he deposited Rs.29,50,000/- in three accounts, namely,·
Standard Chartered Grindlays Bank, Connaught Place (known H
170 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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 Bank bearing account No.32181669 of Farooq
Ahmed Qasid and also deposited some amounts in the account
B of Rehmana Yusuf Faruqi 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 interacted with Nain Singh (PW-20).
c 74. We are in complete agreement with the findings
regarding the incriminating circumstances as recorded b;• the
High Court. On the basis of the aforementioned circumstances,
the High Court came to the conclusion that the appellant was
responsible for the incident of shooting inside the Lal Quila
D (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 @ faizal who was killed in an encounter
E 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. The High Court has further come to the conclusion that it
was in a systematic manner that the appellant came to India
.F illegally and collected highly sophisticated arms and ammunition
meant for mass destruction. The High Court further held that he
chose to select the Red Fort for an assault alongwith his other
associates, the Red Fort being a place of national importance
for India. The High Court has also recorded a finding that the
G 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
H conspiracy, had attacked the Army Camp, which suggests that.
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 171
DELHI [V.S. SIRPURKAR, J.]
there was a conspiracy to wage war against the Government A
of India, particularly, because in that attack, sophisticated arms
like AK-47 and AK-56 rifles and hand grenades were used. The
High Court also took note that this aspect regarding waging war
was not even argued by the learned counsel appearing for
defence. It is on this basis that the appellant was held guilty for B
the offences punishable under Sections 120-B, 121-A, 121,
IPC, Section 120-B read with Section 302, IPC and Sec.tions
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 proved that the c
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. D
75. The law on the circumstantial evidence is, by now,
settled. In Sharad Birdhichand Sarda Vs. State of Maharashtra
[1984 (4) SCC 116], this Court drew out the following test for
relying upon the circumstantial evidence:-
E
"(1) The circumstances from which the conclusion 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 F
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature
and tendency.
G
(4) They should exclude every possible hypothesis
except the one to be proved, and
(5) There must be a chain of evidence so complete as
not to leave any reasonable ground for the
H
172 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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."
The principle of this judgment was thereafter followed in
B number of decisions, they being Tanviben Pankaj Kumar
Divetia Vs. State of Gujarat [1997 (7) SCC 156], State (NCT
of Delhi) Vs. Navjot Sandhu@ Afsan Guru [2005. (11) SCC
600], Vikram Singh & Ors. Vs. State of Punjab [2010 (3) SCC
56], Aftab Ahmad Anasari Vs. State of Uttaranchal [2010 (2)
C sec 583] etc. It is to be noted that in the last mentioned
decision of Aftab Ahmad Anasari Vs. State of Uttaranchal
(cited supra), the observation made is to the following effect:-
"In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
D 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
E taken together is 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
F except the one sought to be proved. But this does 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. There
G must be a chain of evidence so far complete as not 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
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 173
DELHI [V.S. SIRPURKAR, J.]
false defence may be called into aid only to lend A
assurance to the Court ........... " (Emphasis supplied).
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 8
to be drawn from them, on the other. The Court further
mentioned that:-
"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 C
particular case."
To the similar effect are the observations made in Vikram
Singh & Ors. Vs. State of Punjab (cited supra).
76 .. There can be no dispute that in a case entirely D
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, before relying on the circumstantial
evidence and convicting the accused thereby has to satisfy itself E
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 cumulative effect thereof. In doing this, F
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. We respectfully agree with the principles
drawn in the above mentioned cases and hold that the G
prosecution was successful in establishing the above
mentioned 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 the basis of the proved H
174 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B reach the conclusion of guilt on the part of the accused. It is
the 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
c verdict of guilt on the basis of the proved circumstances. In our
opinion, the present case is such, as would pass all the tests
so far devised by this Court in the realm of criminal
jurisprudence.
77. However, we must, at this stage, take note of the
D argument raised by the learned counsel for the defence that the
appellant has suffered a prejudice on account of his being a
Pakistani national. The learned counsel contended that on
account of his foreign nationality and in particular that of
Pakistan, the whole investigating agency as well as the Courts
E below have viewed his role with jaundiced eyes. The learned
counsel pointed out that all the other accused who were
acquitted did not have foreign nationality. We must immediately
note that the criticism is entirely misplaced, both against the
investigating agency and the Courts below. The investigation
F in this case was both scientific and fair investigation. This was
one of the most difficult cases to be investigated as there could
have been no clue available to the investigating agency. The
small thread which became available to the investigating
agency was the chit found alongwith some Indian currency at
G the back of the Red Fort wall in a polythene packet. We must
pay compliments to the Investigating Officer S.K. Sand (PW-
230) as also to all the other associated with the investigation
for being objective and methodical in their approach. It has to
be borne in mind that not a single incidence of ill-treatment to
H the appellant was reported or proved. Again, the timely
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 175
. DELHI [V.S. SIRPURKAR, J.]
recording of the D,D. Entries, scientific investigation using the A
computer, the depth of investigation and the ability of the
investigating agency to reach the very basis of each aspect lend
complete credibility to the fairness of the investigation. We,
therefore, reject this argument insofar as the investigating
agency is concerned. Similar is the role played by the trial and B
the appellate Courts. It could not be distantly imagined that the
Courts below bore any prejudice. The trial held before the trial
Judge was the epitome of fairness, where every opportunity was
given to the accused persons and more particularly, to the
present appellant. Similarly, the High Court was also very fair c
in giving all the possible latitude, in giving patient hearing to
this accused (appellant). The records of the trial and the
appellate Courts truly justify these inferences. We, therefore,
reject this argument of the learned defence counsel.
78. It was then argued that there could be no conviction D
for the conspiracy in the absence of conviction of any other
accused for that purpose. The argument is per se incorrect. It
is true that out of the original 22 accused persons, ultimately
upto this level, it is only the present appellant who stands
convicted. We must, however, point out that as many as 8 E
accused persons against whom the investigating agency filed
a chargesheet are found to be absconding. The Investigating
Officer had collected ample material during the investigation
against these 8 accused persons who were (1) Sabir @
Sabarulla @ Afgani (A-12), Sher Zaman Afgani S/o Mohd. F
Raza (A-13), Abu Haider (A-14), Abu Shukher (A-15), Abu
Saad (A-16), Zahur Ahmad Qasid S/o Gulam Mohd. Qasid (A-
17), Bilal Ahmad Kawa S/o Ali Mohd. Kawa (A-18) and
Athruddin @ Athar Ali @ Salim @ Abdulla S/o Ahmuddin (A-
19). Besides these absconding accused persons, 3 others G
were Abu Bilal (A-20), Abu Shamal (A-21) and Abu Suffian (A-
22). All these three persons were already dead when the
chargesheet was filed against them. The charge of conspiracy
was against all the accused persons. The conspiracy also
included the dead accused Abu Shamal who was found to be H
176 SUPREME COURT REPORTS (2011] 10 S.C.R.
A hiding and who was later killed in exchange of fire with the
police. The whereabouts of Abu Shamal were known only due
to the discovery statement by the appellant, in which a very clear
role was attributed to Abu Shamal, who was also a part of the
team having entered the Red Fort and having taken part in the
B firing and killing of three soldiers. It has also come in the
evidence that the other accused who was absconding in the
'J)resent case, namely, Abu Bilal (A-20), was killed in exchange
of fire with police in 2002 near Humayun's Tomb. It is to be
remembered that the negative of the photograph of Abu Bilal
c (A-20) was seized at the time of arrest of the appellant, from
his wallet. Indeed, the act of firing at the Army was not by a
single person. The learned Solicitor General, therefore, rightly
submitted that the case of the prosecution that there was a
conspiracy to attack the Red Fort and kill innocent persons, was
not affected even if the other accused persons who were
D alleged to have facilitated and helped the appellant, were
acquitted. The question of a single person being convicted for
an offence of conspiracy was considered in Bimbadhar
Pradhan Vs. The State of Orissa [AIR 1956 SC 469].
E Paragraph 14 thereof is relevant for us, which is as follows:-
"14. Another contention raised on behalf of the appellant
was that the other accused having been acquitted
by the trial court, the appellant should not have been
convicted because the evidence against all of them
F was the same. There would have been a great deal
of force in this argument, not as a question of
principle but as a matter of prudence if we were
satisfied that the acquittal of the other four accused
persons was entirely correct. In this connection the
G observations of this Court in the case of Dalip
Singh v. State of Punjab [1954] (1) SCR 145, and
of the Federal Court in Kapi/deo Singh v. The King
[1949] F.C.R. 834, are relevant. It is not essential
that more than one person should be convicted of
H the offence of criminal conspiracy. It is enough if the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 177
DELHI [V.S. SIRPURKAR, 'J.]
court is in a position to find that two or more A
persons were actually concerned in the criminal
conspiracy. If the courts below had come to the
distinct finding that the evidence led on behalf of the
prosecution was unreliable, then certainly no
conviction could have been based on such B
evidence and all the accused would have been
equally entitled to acquittal. But that is not the
position in this case as we read the judgments of
the courts below."
The learned Solicitor General also relied on the decision C
in State of Himachal Pradesh Vs. Krishna Lal Pradhan [1987
(2) sec 17] and cited the observations to the effect that the
offence of criminal conspiracy consists in a meeting of minds
of two or more persons for agreeing to do or causing to be
done an illegal act by illegal means, and the performance of D
an act in terms thereof. It is further observed:-
"lf pursuant to the criminal conspiracy the conspirators
commit several offences, then all of them will be liable for
the offences even if some of them had not actively E
participated in the commission of the offence.s."
The learned Solicitor General further relied on the decision
in State through Superintendent of Police, CBI/SIT Vs. Nalini
& Ors. [1999 (5) SCC 253), wherein in paragraph 662, the
F
following observations were made:-
"In reaching the stage of meeting of minds, two or more
persons share information about doing an illegal act or a
legal act by illegal means. This is the first stage where
each is said to have knowledge of a plan for committing G
an illegal act or a legal act by illegal means. Among those
sharing the information some or all may performance
intention to do an illegal act or a legal act by illegal means.
Those who do form the requisite intention would be parties
to the agreement and would be conspirators but those who H
178 SUPREME COURT REPORTS [2011) 10 S.C.R.
A drop out cannot be roped irr as collaborators on the basis
of mere knowledge unless they commit acts or omissions
from which a guilty common intention can be inferred. It is
not necessary that all the conspirators should participate
from inception to the end of the conspiracy; some may join
B the conspiracy after the time when such intention was first
entertained by any one of them and some others may quit
from the conspiracy. All of them cannot but be treated as
conspirators. Where in pursuance of the agreement the
conspirators commit offences individually or adopt illegal
c means to do a legal act which has a nexus to the object
of conspiracy, all of them will be liable for such offences
even if some of them have not actively participated in the
commission of those offences."
Again in Firozuddin Basheeruddin & Ors. Vs. State of
D Kera/a [2001 (7) SCC 596), while stating the principles of
conspiracy, the Court observed as follows:- .
"Conspiracy is not only a substantive crime. It also serves
as a basis for holding one person liable for the crimes of
E others in cases where application of the usual doctrines
of complicity would not render that person liable. Thus, one
who enters into a conspiratorial relationship is liable for
every reasonably foreseeable crime committed by every
other member of the conspiracy in furtherance of its
F objectives, whether or not he knew of the crimes or aided
in their commission. The rationale is that criminal acts
done in furtherance of a conspiracy may be sufficiently
dependent upon the encouragement and support of the
group as a whole to warrant treating each member as a
casual agent to each act. Under this view, which of the
G
conspirators committed the substantive offence would be
less significant in determining the defendant's liability than
the fact that the crime was performed as a part of a larger
division of labor to which the accused had also contributed
his efforts.
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 179
DELHI [V.S. SIRPURKAR, J.]
Regarding admissibility of evidence, loosened A
standards prevail in a conspiracy trial. Contrary to the
usual rule, in conspiracy prosecutions a declaration by one
conspirator, made in furtherance of a conspiracy and
during its pendency, is admissible against each co-
conspirator. Despite the unreliability of hearsay evidence, B
it is admissible in conspiracy prosecutions. Explaining this
rule, Judge Hand said:
"Such declarations are admitted upon no doctrine
of the law of evidence, but of the substantive law of C
crime. When men enter into an agreement for an
unlawful end, they become ad hoc agents for one
ano~her, and have made 'a partnership in crime'.
what one does pursuant to their common purpose,
all do, and as declarations may be such acts, they
are competent against all (Van Riper v. United D
States 13 F.2d 961, 967, (2d Cir. 1926)."
Thus conspirators are liable on an agency theory for
statements of co-conspirators, just as they are for the overt
acts and crimes committed by their confreres." E
Our attention was also invited to the observations made
in Yashpal Mitta/ Vs. State of Punjab (1977 (4) SCC 540] at
page 543. The observations are to the following effect:-
"The offence of criminal conspiracy under Section 120A F
is a distinct offence introduced for the first time in 1913 in
Chapter VA of the Penal Code. The very agreement,
concert or league is the ingredient of the offence. It is not
necessary that all the conspirators must know each and
every detail of the conspiracy as long as they are co- G
participators in the main object of the conspiracy. There
may be so many devices and techniques adopted to
achieve the common goal of the conspiracy and there may
be division of performances in the chain of actions with
one object to achieve the real end of which every H
180 SUPREME COURT REPORTS [2011] 10 S.C.R.
A collaborator must be aware and in which each one of them
must be interested. There must be unity of object or
purpose but there may be plurality of means sometimes
even unknown to one another, amongst the conspirators.
In achieving the goal several offences, may be committed
8 by some of the conspirators even unknown to the others.
The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in
furtherance of the object of the conspiracy even though
there may be sometimes misfire or over-shooting by some
c of the conspirators. Even if some steps are resorted to by
one or two of the conspirators without the knowledge of
the others it will not affect the culpability of those others
when they are associated with the object of.the conspiracy.
The significance of criminal conspiracy under Section 120A
is brought out pithily by this Court in Major B. G. Darsay
D
v. The State of Bombay: 1961 CriLJ 828 . thus:
The gist of the offences is an agreement to break
the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal act
E agreed to be ·done has not been done. So too, it is
not an ingredient of the offence that all the parties
should agree to de a single illegal act. It may
comprise the commission of a number of acts.
under Section 43 of the Indian Penal Code, an act
F would be illegal if it is an offence or if it is prohibited
by law. Under the first charge the accused are
charged with have conspired to do three
categories of illegal acts and the mere fact that all
of them could not be convicted separately in
G respect of each of the offences has no relevancy
in considering the question whether the'- offence
of ·conspiracy has been committed. They ate all
guilty of the offence of conspiracy to do illegal acts,
though for individual offences all of them may not
be liable.
H
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 181
DELHI [V.S. SIRPURKAR, J.]
We are in respectful agreement with the above A
observations with regard to the offence of criminal
conspiracy.
The main object of the criminal conspiracy in the first
charge is undoubtedly cheating by personation. The other 8
means adopted, inter alia, are preparation or causing to
be prepared spurious passports; forging or causing to be
forged entries and endorsements in that connection; and
use of or causing to be used forged passports as genuine
in order to facilitate travel of persons abroad. The final C
object of the conspiracy in the first charge being the
offence of cheating by personation and we find, the other
offence described therein are steps, albeit, offences
themselves, in aid of the ultimate crime. The charge does
not connote plurality of objects of the conspiracy. That the
appellant himself is not charged with the ultimate offence, D
which is the object of the criminal conspiracy, is beside
the point in a charge under Section 1208 IPC as long as
he is a party to the conspiracy with the end in view.
Whether the charges will be ultimately established against
the accused is a completely different matter within the E
don:iain of the trial court."
The learned Solicitor General also invited our attention to
the decision rendered in Ajay Agarwal Vs. Union of India &
Ors. [1993 (3) SCC 609], wherein the following observations F
were made in paragraphs 8 and 24:-
. "8. . ..... In Chapter VA, conspiracy was brought on
statute by the Amendment Act, 1913 (8 of 1913).
Section 120-A of the l.P.C. defines 'conspiracy' to
mean that when two or more persons agree to do, G
or cause to be done an illegal act, or an act which
is not illegal by illegal means, such an agreement
is designated as "criminal conspiracy. No
agreement except an agreement to commit an
offence shall amount to a criminal conspiracy, H
182 SUPREME COURT REPORTS [2011] 10 S.C.R.
A unless some act besides the agreement is done by
one or more parties to such agreement in
furtherance thereof. Section 120-B of the l.P.C.
prescribes punishment for criminal conspiracy. It is
not necessary that each conspirator must know all
B the details of the scheme nor be a participant at
every stage. It is necessary that they should agree
for design or object of the conspiracy. Conspiracy
is conceived as having three elements: (1)
agreement (2) between two or more persons by
c whom the agreement is effected; and (3) a criminal
object, which may be either the ultimate aim of the
agreement, or may constitute the means, or one of
the means by which that aim is to be accomplished.
It is immaterial whether this is found in the ultimate
objects. The common law definition of 'criminal
D
conspiracy' was stated first by Lord Denman in
Jones' case (1832 B & AD 345) that an indictment
for conspiracy must "charge a conspiracy to do an
unlawful act by unlawful means" and was elaborated
by Willies, J. on behalf of the Judges while referring
E th_e question to the House of Lords in Mulcahy v.
Reg (1868) LR. 3 H.L. 306 and the House of Lords
in unanimous decision reiterated in Quinn v.
Leathern 1901 AC 495 as under:
F 'A conspiracy consists not merely in the
intention of two or more, but in the
agreement of two or more to do an unlawful
act, or to do a lawful act by unlawful means.
So long as such a design rests in intention
G only it is not indictable. When two agree to
carry it into effect, the very plot is an act in
itself, and the act of each of the parties,
promise against promise, actus contra
actum, capable of being enforced, if lawful,
H punishable of for a criminal object or for the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 183
DELHI [V.S. SIRPURKAR, J.]
use of criminal means. (emphasis supplied)' A
24. A conspir~cy thus, is a continuing offence and
continues to subsist and committed wherever one
of the conspirators does an act or series of acts.
So long as its performance continues, it is a
8
continuing offence till it is executed or rescinded or
frustrated by choice or necessity. A crime is
complete as soon as the agreement is made, but
it is not a thing of the moment. It does not end with
the making of the agreement. It will continue so long C
as there are two or more parties to it intending to
carry into effect the design. Its continuance is a
threat to the society against which it was aimed at
and would be dealt with as soon as that jurisdiction
can properly claim the power to do so. The
conspiracy designed or agreed abroad will have D
the same effect as in India, when part of the acts,
pursuant to the agreement are agreed to be
finalized or done, attempted or even frustrated and
vice versa."
E
Further in Nazir Khan & Ors. Vs. State of Delhi (2003 (8)
SCC 461], the Court observed as under:-
"16. In Halsbury's Laws of England (vide 4th Ed. Vol. 11,
page 44, page 58), the English Law a·s to
F
conspiracy has been stated thus:
"Conspiracy consists in the agreement of
two or more persons to do an unlawful act,
or to do a lawful act by unlawful means. It is
an indication offence at common law, the G
punishment for which is imprisonment or fine
or both in the discretion of the Court.
The essence of the offence of conspiracy
is the fact of combination by agreement. The H
184 SUPREME COURT REPORTS [2011] 10 S.C.R.
A agreement may be express or implied, or in
part express and in part implied. The
conspiracy arises and the offence is
committed as soon as the agreement is
made; and the offence continues to be
B committed so long as the combination
persists, that is until the conspiratorial
agreement is terminated by completion of its
performance or by abandonment or
frustration or however, it may be. The actus
c rues in a conspiracy is the agreement to
execute the illegal conduct, not the execution
of it. It is not enough that two or more persons
pursued the same unlawful object at the
same time or in the same place; it is
necessary to show a meeting of minds, a
D
consensus to effect an unlawful purpose. It is
not, however, necessary that each conspirator
should have been in communication with
every other."
E 17. There is no difference between the mode of proof
of the offence of conspiracy and that of any other
offence, it can be established by direct or
circumstantial evidence. (See: Bhagwan Swarup
Lal Bishan Lal etc.etc. v. State of Maharashtra AIR
1965 SC 682
18. Privacy and secrecy are more characteristics of a
conspiracy, than of a loud discussion in an elevated
place open to public view. Direct evidence in ~f
of a conspiracy is seldom available, offence of
G conspiracy can be proved by either direct or
circumstantial evidence. It is not always possible to
give affirmative evidence about the date of the
formation of the criminal conspiracy, about the
persons who took part in the formation of the
H
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 185
DELHI [V.S. SIRPURKAR, J.]
conspiracy, about the object, which the objectors A
set before themselves as the object of conspiracy,
and about the manner in which the object of
conspiracy is to be carried out, all this is
necessarily a matter of inference.
B
19. The provisions of Section 120A and 1208, IPC
have brought the law of conspiracy in India in line
with the English Law by making the overt act
unessential when the conspiracy is to commit any
punishable offence. The English Law on this matter C
is well settled. Russell on crime (12 Ed.Vol. I,
p.202) may be usefully noted-
"The gist of the offence of conspiracy then
lies, not in doing the act, or effecting the
purpose for which the conspiracy is formed, D
nor in attempting to do them, nor in inciting
others to do them, but in the forming of the
scheme or agreement between the parties,
agreement is essential. More knowledge, or
even discussion, of the plan is not, per se, E
enough."
Glanville Williams in the "Criminal Law" (Second Ed.
P. 382) states-
"The question arose in an Iowa case, but it F
was discussed in terms of conspiracy rather
than of accessoryship. D, who had a
grievance against P, told E that if he would
whip ~ someone would pay his fine. E
replied that he did not want anyone to pay his G
fine, that he had a grievance of his own
against P and that he would whip him at th!3
first opportunity. E whipped P. D was
acquitted of conspiracy because there was
H
186 SUPREME COURT REPORTS [2011] 10 S.C.R.
A no agreement for 'concert of action', no
agreement to 'co-operate'."
The learned Solicitor General also referred to the summing
up by Coleridge, J. in R. Vs. Murphy (ER) at page 508.
B 79. Ultimately, the learned Solicitor General relied on the
celebrated decision in State (NCT of Delhi) Vs. Navjot Sandhu
[2005 (11) SCC 600]. On this basis, it was urged by the learned
Solicitor General that the circumstances which were found to
have been established beyond doubt, led only to one conclusion
C that the appellant was responsible for the incident of shooting
inside the Red Fort on the night of 22.12.2000, in which three
·Army soldiers were killed. This was nothing but a well planned
conspiracy and the responsibility of this ghastly incident was
taken up by Lashkar-e-Toiba. This was undoubtedly a
D conspiracy, well planned, alongwith some other militants
including the deceased accused Abu Shamal who was also
killed in the exchange of fire with the police. For this conspiracy,
the appellant illegally entered India and he was receiving huge
amounts of money to make it possible for himself to execute
E his design. It is for this purpose that he falsely created and
forged number of documents. The whole idea was to legitimize
his stay in India for which he got prepared a false ration card,
a false license and also opened bank accounts with the false
addresses. He had taken adequate care to conceal his real
F identity. He described himself as a trader and a resident of
Jammu, which was also a patent falsehood. He went on to the
extent of getting married allegedly on the basis of an
advertisement. He also spent huge amounts without there being
any source of money and deposited lakhs of rupees in some
other bank accounts. It may be that those persons, in whose
G accounts he deposited money, might have been acquitted
getting benefit of doubt regarding their complicity, but the fact
remains that the appellant had no explanation to offer. Similarly,
barely 14 days prior to the incident, he got married to Rehmana
Yusuf Farukhi, another accused who was acquitted. It may be
H
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 187
DELHI [V.S. SIRPURKAR, J.]
that Rehmana Yusuf Farukhi also did not have any idea and, A
therefore, was granted the benefit of doubt; however, that does
not, in any manner, dilute the nefarious plans on the part of the
appellant. He collected highly sophisticated arms and
ammunition and some arms were proved to have been used
in the attack on the Red Fort. The attack on the soldiers staying B
in the Army Camp at Red Fort was nothing but a war waged
against the Government of India. It was clear that there were
more than one person. Therefore, it was nothing but a well
planned conspiracy, in which apart from the appellant, some
others were also involved. c
80. The learned Solicitor General then urged that the
appellant was rightly convicted for the offences punishable under
Sections 120-B, 121-A, 121, IPC, Section 120-B read with
Section 302, IPC, Sections 468/471/474, IPC, Sections 186/
353/120-B, IPC and Section 14 of the Foreigners Act. D
81. There was no argument addressed before us to the
effect that there was no conspiracy. The only argument
advanced was that the appellant alone could not have been
convicted for the conspiracy, since all the other accused were E
· acquitted. We have already stated the principles which have
emerged from various decisions of this Court. Once the
prosecution proves that there .was a meeting of minds between
two persons to commit a crime, there would be an emergence
of conspiracy. The fact that barely within minutes of the attack, F
the BBC correspondents in Srinagar and Delhi were informed,
proves that the attack was not a brainchild of a single person.
The information reached to BBC correspondent at Srinagar and
Delhi sufficiently proves that there was a definite plan and a
conspiracy. Again the role of other militants was very clear from G
the wireless message intercepted at the instance of BSF.
Unless there was a planning and participation of more than one,
persons, all this could never have happened. For the execution
of the nefarious plans, the militants {more than one in number)
entered under the guise of watching Son et Lumiere show and
H
188 SUPREME COURT REPORTS (2011) 10 S.C.R.
A while doing so, they smuggled arms inside the Red Fort. It is
after the show taking the advantage of the darkness, they
started shooting, in which they first killed the Sentry and then
the other two persons who were the soldiers and then taking
further advantage of the darkness, they scaled over the wall and
B fled. All this had to be a pre-planned attack for which the
militants must have made a proper reconnaissance, must have
also found out the placements of Army barracks and the
escape route from the backside of the Red Fort. It was not a
stray attack of some desperados, which was undoubtedly an
c extremely well-planned attempt to overawe the Government of
India and also to wage war against the Government of India. It
has already been held in Kehar Singh Vs. State (Delhi Admn.)
[AIR 1988 SC 1883) that the evidence as to the transmission
of thoughts sharing the unlawful design would be sufficient for
establishing the conspiracy. Again there must have been some
0
act in pursuance of the agreement. The offence under Section
121 of conspiring to wage a war is proved to the hilt against
the appellant, for which he has been rightly held guilty for the
offence punishable under Sections 121 and 121-A, IPC. The 1
E appellant is also rightly held guilty for the offence punishable
under Section 120-B, IPC read with Section 302, IPC. In the
aforementioned decision of Navjot Singh Sandhu it has been
held by this Court:
"Thus the conspirator, even though he may not have
F indulged in the actual criminal operations to execute the
conspiracy, becomes liable for the punishment prescribed
under Section 302, IPC. Either death sentence or
imprisonment for life is the punishment prescribed under
Section 302, IPC."
G
In this view, we agree with the verdict of the trial Court as
well as the High Court.
82. No other point was argued before us at the instance
of the defence. That leaves us with the question of punishment.
H
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 189
DELHI [V.S. SIRPURKAR, J.J
The trial Court awarded the death se_ntence to the appellant A
Mohd. Arif@ Ashfaq for the offence under Section 121 IPC
for waging war against the Government of India. Similarly, he
was awarded death sentence for the offence under Section
1208 read with Section 302, IPC for committing murder of
Naik Ashok Kumar, Uma Shankar and Abdullah Thakur inside B
the Red Fort on 22.12.2000. For the purpose of the sentences,
the other convictions being of minor nature are not relevant.
On a reference having been made to it, the High Court
ultimately confirmed the death sentence. The High court also
concurred with the finding of the trial Court that this was a rarest c
of the rare case. The High Court has observed that the counsel
appearing for him did not highlight any mitigating circumstance
justifying the conversion of death sentence to life imprisonment
perhaps because the learned counsel was conscious of the
futility of the submission. The High Court specifically found that
0
accused had hatched a conspiracy to attack the Indian Army
stationed inside the national monument for protecting it from
any invasion by the terrorists and had executed also that
conspiracy with the help of his other associate militants and
in that process they had killed three army Jawans and more
could also have lost their lives but for the immediate retaliation E
by the members of the Quick Reaction Team of the Army. In
that view, the High Court concurred with the finding of this being
a rarest of the rare case. The question is whether we should
give the same verdict in respect of the death sentence.
F
83. 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 place of great honour for
every Indian, a place with which every Indian is attached G
emotionally, and a place from where our first Prime Minister
delivered his speech on 15th August, 1947, the day when India
broke the shackles of.foreign rule and became a free country.
It has since then been a tradition that every Hon'ble Prime
Minister of this country delivers an address to the nation on H
190 SUPREME COURT 1REPORTS [2011] 10 S.C.R.
A every 15th August to commemorate that great event. This Fort
was visualized and constructed by Mughal Emperor Shahjahan
who is known as "Shahjahan the builder". It took nine years for
its completion. It was here that Shahjahan ascended the Throne
on 18th April, 1648 amidst recitation of sacred Aayates of Holy
B 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 unfortunate
capture by Nadir Shah. It was in 1837, the last Mughal Emperor
Bahadurshah Zafar II took over the Throne. It must be
c remembered that it was during the empire of Bahadurshah
Zafar II that the first war of Independence was fought. The 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
D September, 1857, it was captured by the British. Red 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 it
E 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 by gone. Its importance lies in the fact that it has for
centuries symbolised the seat of power in this country. It has
symbolised the supremacy of the Mughal and the British
F 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 country from
G foreign rule. 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 the Red Fort to the Calcutta and later
to New Delhi, Pt. Jawahar Lal Nehru after his historic "Tryst with
Destiny" speech unfurled the tricolor from the ramparts of the
H
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 191
DELHI [V.S. SIRPURKAR, J.]
Red Fort on 15th August 1947. That singular event symbolised A
the end of the British rule in this country and the birth of an
.independent India. An event that is relived and re-acted every
succeeding year since 1947, when every incumbent Prime
Minister addresses the nation from atop this great and historic
Fort reminding the countrymen ·of the importance of freedom, B
the need for its preservation and the values of constitutional
democracy that guarantees the freedoms so very fundamental
to the preservation of the unity and integrity of this country. An
attack on a symbol that is so deeply entrenched in the national
psyche was, therefore, nothing but an attack on the very c
essence of the hard earned freedom and liberty so very dear
to the people of this country. An attack on a symbol like F -,,d
Fort was an assault on the nation's will and resolve to preser.e
its integrity and sovereignty at all costs. It was a challenge not
only to the Army battalions stationed inside the monument but D
the entire nation. It.was a challenge to the very fabric of a
secular constitutional democracy this country has adopted and
every thing that is good and dear to our countrymen. It was a
blatant, brazenfaced and audacious act aimed to over awe the
Government of India. It was meant to show that the enemy could
with impunity reach and destroy the very vitals of an institution E
so dear to our fellow countrymen for what it signified for them.
It is not for no reason that whosoever comes to Delhi has a
yearning to visit the Red Fort. It is for these reasons that this
place has become a place of honour for Indians. No one can
ever forget the glorious moments when the Indians irrespective F
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 on G
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 rare
case. This was nothing but an undeclared war by some foreign
mercenaries like the present appellant and his other partner in H
192 SUPREME COURT REPORTS [2011] 10 S.C.R.
A conspiracy Abu Shamal and some others who ~ither 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 India. Therefore, even without any
8 reference to any other case law, we held this case to be the
rarest of rare case. Similar sentiment was expressed by this
Court in State v. Navjot Singh Sandhu [2005 (11) SCC 600).
The Court expressed its anguish in the following words.
"In the instant case, there can be no doubt that the most
c appropriate punishment is death sentence. That is what
has been awarded by the trial Court and the High Court.
The present case, which has no parallel in the history of
Indian Republic, presents us in crystal clear terms, a
spectacle of rarest of rare cases. The very idea of
D attacking and overpowering a sovereign democratic
institution by using powerful arms and explosives and
imperiling the safety of a multitude of peoples'
~epresentatives, constitutional fL nctionaries and officials of
Government of India and engaging into a combat with
E security forces is a terrorist act of gravest severity. It is a
classic example of rarest of rare cases. This question of
attack on the army and the killing of three soldiers sent
shock waves of indignation throughout the country. We
have no doubt that the collective conscience of the society
F can be satisfied by capital punishment alone."
We agree with the sentiments expressed in Navjot Singh
Sandhu's case (cited supra):
"The challenge to the unity, integrity and sovereignty of
G India by these acts of terrorists and conspirators, can only
be compensated by giving the maximum punishment to the
person who is proved to be the conspirator in this
treacherous act."
84. A conspiracy to attack the Indian Army unit stationed
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF 193
DELHI [V.S. SIRPURKAR, J.]
n Red Fort and the consequent un-provoked attack cannot be A
lescribed excepting as waging war against India and there can
Je no question of compromising on this issue. The trial Court
ias relied on number of other cases including the case of
Vavjot Singh Sandhu (cited supra) as also the case of State
:if Tamil Nadu v. Na(ini [AIR 1999 SC 2640). We do not want B
:o burden the judgment by quoting from all these cases.
However, we must point out that in Machhi Singh v. State of
Punjab's case (1983 (3) sec 470] a principle was culled out
that when the collective conscience of the community is so
shocked, that it will expect the holders of the judicial power c
centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death
penalty, same can be awarded. The fourth test includes the
crime of enormous proportion. For instance when multiple
murders say of all or almost all the members of a family or a D
,large number_of persons of a particular caste, community or
locality are committed. Applying both the tests here we feel that
:this is a case where the conscience of the community would
get shocked and it would definitely expect the death penalty for
the appellant. Three persons who had nothing to do with the E
conspirators were killed in this case. Therefore, even Machhi
Singh's case (cited supra) would aptly apply. Even in Bachan
Singh v. State of Punjab [AIR 1980 SC 898] case, this Court
referred to the penal statutes of States in USA framed after
Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238) in
general and Clause 2(a),(b), (c) and (d) of the Indian Penal F
Code (Amendment) Bill duly passed in 1978 by Rajya Sabha.
Following aggravating circumstances were suggested by the
·Court in that case as aggravating circumstances:-
"(a) If the murder has been committed after previous G
planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed
H
194 SUPREME COURT REPORTS [2011] 10 S.C.R.
A forces of the Union or of a member of any police
force or of any public servant and was committed-
(i) while such member or public servant was on
duty; or
B (ii) in consequence of anything done or
attempted to be done by such member or
public servant in the lawful discharge of his
duty as such member or public servant
whether at the time of murder he was such
c member or public servant, as the case may
be, or had ceased to be such member of
public servant; or
(d) if the murder is of a person who had acted in the
D lawful discharge of his duty under S.43 of the Code
of Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer
demanding his aid or requiring his assistance
under S.37 and S.129 of the said Code."
E The Court then observed that there could be no objection
to the acceptance of these indicators. The Court, however,
preferred not to fetter the judicial conscience by attempting to
make an exhausting enumeration one way or the other. The
circumstance at "(c)" would be fully covering the present case
F since the three soldiers who lost their lives were the members
of the armed forces and Abdullah one of them was actually
doing his Sentry duty though there is no evidence available
about as to what duty the other two were doing. But there is no
reason to hold that their murder was in any manner prompted
G by any provocation or action on their part. This would be an
additional circumstance according to us which would justify the
death sentence. 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
H aggravating circumstance that it was a direct attack on the unity,
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 195
DELHI [V.S. SIRPURKAR, J.]
integrity and sovereignty of India by foreigners. Thus, it was an A
attack on Mother India. This is apart from the fact that as many
as three persons had lost their lives. The conspirators had no
place in India. Appellant was a foreign national and had entered
India with.out any authorization or even justification. This is apart
from the fact that the appellant built up a conspiracy by B
practicing 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 Indian Army. We, therefore, have no doubts that
death sentence was the only sentence in the peculiar C
circumstance of this case. We, therefore, confirm the judgment
of the trial Court and the High Court convicting the accused and
awarding death sentence for the offences under Section 302,
IPC. We also confirm all the other sentences on all other counts
and dismiss these appeals. D
R.P. Appeal dismissed.
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