STATE OF J & KversusWASIMAHMED MALIK@ HAMID AND ANOTHER

                        [2015] 9 S.C.R. 1084


A                          STATE OF J & K
                                   v.
        WASIMAHMED MALIK@ HAMID AND ANOTHER
                 (Criminal Appeal No. 1743 of 2009)
B
                            JULY01,2015
           [A. K. SIKRI AND UDAY UMESH LALIT, JJ.]
          Terrorist and Disruptive Activities (Prevention) Act, 1987:
c   s. 15 - Requirement under - , Bomb blasts - Explosion
    resulted in death of 8 persons and serious injuries to 18
    persons - Charge sheet ulss.3, 4 of TADA Act; s. 120-B rlw
    ss. 302, 307 and 34 IPC; ss.4 and 5 of Explosives Substance
    Act - Confession made by respondent-accused u/s. 15 of
D   TADA Act wherein he confessed about his involvement as
    also that of other accused - Confession recorded by PW-1,
    the Superintendent of Police - Trial court rejected the
    confessional statement on the ground that it was recorded in
    Hindi i.e. not in the language of respondents and acquitted
E   both the respondents - On appeal, held: There was nothing
    on record that confessing accused did not understand the
    line of questioning or that he was not made to understand
    the contents of the confession after the recording was
    complete - In the confessional statement confessing accused
F   clearly admitted his guilt and described the role played by
    him - His acquittal is, therefore, set aside -Ass regards the
    other accused, apart from confessional statement of
    confessing accused, nothing was placed on record to send
    corroboration as regards his role in the conspiracy and
G   execution thereof - Therefore, his acquittal is affirmed -
    Appeal - State's appeal against acquittal - Ranbir Penal
    Code - s. 120-B r!w ss. 302, 307 and 34 - Explosives
    Substance Act, 1908 - ss. 4 and 5 -Terrorist and Disruptive
H   Activities (Prevention) Rules - r.15.
                                 1084
  STATE OF J & K v. WASIM AHMED MALIK@ HAMID                  ·1085


     Partly allowing the appeal, the Court                     A

     HELD: 1. A confession recorded under Section
15(1) of the TADA Act in accordance with statutory
requirements and in keeping with the guidelines is
admissible against the maker, his co-accused, abettor B
or conspirator in a trial for an offence under the Act,
subject to the condition stipulated in the proviso to
Section 15(1 ). Such confession is taken as substantive
piece of evidence and can form the foundation or basis
for conviction of the maker, co-accused, abettor or C
conspirator. However, insofar as use of confession of
an accused against a co-accu'sed is concerned, rule of
prudence would require the Court not to rely thereon
unless corroborated generally by other evidence on
record. [Para 13) [1100-H; 1101-A-C]                    D

      2. Rule 15(1) of TADA Rules stipulates that the
confession "shall invariably be recorded in the language
in which such confession is made and if that is not
practicable, in the language used by such police officer       E
for official purposes or in the language of the Designated
Court ...... ". The expression "invariably" itself suggests
that the requirement under the Rule is discretionary and
not mandatory. The record in the present matter is very
clear that the confessing accused 'GN' was produced            F
before PW1 was given statutory warning and time to
reflect. t;:verything was explained to him and only
thereafter his thumb impression was taken. On the next
occasion, when the confessing accused was again
produced before the witness, soon after the recording          G
of the confession it was again explained to him, read over
and only thereafter the thumb impression was taken. At
no stage during the recording on these two occasions,
nor at the stage when the witness was in the box, there        H
1086      SUPREME COURT REPORTS             [2015] 9 S.C.R.

 A was anything on record, or even a suggestion that the
   confessing accused did not understand or was not made
   to understand the contents of the confession. The
   contents of the confession also disclosed that many of
   the assertions were personal to the confessing accused
 B which could only be gathered after due conversation with
   the Recording Officer. The language used as a means of
   communication between the confessing accused and
   the recording officer being Hindi or Hindustani, such
   recording of confession in Hindi language is completely
 C in conformity with the requirement of the Rule. The
   conclusion drawn by the trial court that 'GN' being
   Pakistani national, his language must be Urdu and
   therefore the recording of the confession in a language
   other than Urdu, must be held to be not in conformity, is
 0
   wrong. The assessment made by the trial court in this
   behalf was completely incorrect and against the record.
   [Paras 14, 15] [1101-D-H; 1102-A-C, DJ

        ·3. The contents of the confession showed that he
 E clearly admitted his guilt and his involvement right from
   the hatching of conspiracy to the execution thereof. The
   confessing accused had spoken about various stages
   since the conspiracy was hatched and how he had
 F helped in transporting the explosive material from across
   the border and then placed it in the pits, dug inside the
   stadium and on the main road outside the stadium. The
   consequential explosion of the bombs which was timed
   with the celebrations on account of Republic Day was
 G definitely designed to disrupt the celebrations and
   terrorize the people in general and those who had
   gathered at the time of celebration in particular. The
   involvement of accused 'GN' in entering into the
   conspiracy, execution and facilitation thereof is
 H completely made out. The confession of an accused is
 , STATE OF J & K v. WASIM AHMED MALIK@ HAMID                      1087


a substantive piece of evidence and his conviction can A
be founded on such confession itself. Therefore, 'GN'
was guilty of the offences with which he was charged.
However, as regards the other accused, 'WAM' apart from
the confession of 'GN' that is to say the confession of
co-accused, nothing was placed on record which could B
lend corroboration as regards his role in the conspiracy
and execution thereof. There was no justification to
reverse the finding of acquittal as recorded in respect
of 'WAM'. [Paras 16 and 17] [1102-F-H; 1103-A, C-E]
                                                                   c
     State vs. Nalini & Ors. (1999)5 SCC 253: 1994
     (2) SCR 375 - relied on.
     Kartar Singh vs. State of Punjab (1994) 3 SCC
     569: 1999 (3) SCR 1 - referred to.
                                                                   D
                      Case Law Reference
     1999 (3) SCR 1          referred to.          Para 12
     1994 (2) SCR 375        relied on.            Para 12
                                                                    E
    CIVILAPPELLATE JURISDICTION : Criminal Appeal No.
1743 of 2009
      From the Final Judgment and Order dated 02.03.2009
of the 3rd Addi. Sessions Judge, Jammu, Designated Court,           F
underTADA(P)Act, 1987 Jammu in file No. 26/Challan.

     P. K. Dey, S. Saini, K. L. Janjani, B. V. Balramdas for the
Appellant.

     Dushyant Parasharforthe Respondents.                          G

     The Judgment of the Court was delivered by

     UDAYUMESH LAUT, J. 1. ThisAppeal under section
19 of the Terrorist and Disruptive Activities (Prevention) Act      H
1088       SUPREME COURT REPORTS                  [2015] 9 S.C.R.


 A  1987 (hereinafter referred to as the Act) challenges the
   judgment and order dated 02.03.2009 passed by the third
   Additional Sessions Judge i.e. the Designated Court under
   the Act in File No. 26/Challan, acquitting the respondents of
   the offences under sections 3 and 4 of the Act, section 120-B
 B read with sections 302, 307 and 34 of Ranbir Penal Code
   and sections 4 and 5 of the Explosives Substances Act, 1908
   arising out of FIR No. 12 of 1995.

         2. On the occasion of celebration of Republic Day on
 C 26.01.1995 at about 10:20 a.m. in Maulana Azad Memorial
   Stadium, Jammu, General KV Krishna Rao, Governor of
   Jammu and Kashmir was addressing a huge gathering of
   about 40,000 people including high dignitaries, VIPs, Senior
   Officers of the Govt., leaders of political parties and
 D respectable citizens when three powerful bomb explosions
   took place at the site of public address system, near the dais
   and on the main road, outside the stadium resulting in killing
   of eight persons, and in causing grievous injuries to eighteen
   persons and disruption of the celebrations. Soon after the
 E incident FIR No. 12of1995 dated 26.01.1995 of PS Nowbad,
   Jam mu (J&K) relating to said 'bomb blasts was registered. At
   the request of the Government of Jammu and Kashmir, the
   investigation was transferred to Central Bureau of Investigation
 F (C.B.I.) vide notification dated 31.01.1995 and Regular Case
   No. RC1(5)/95-SIUVwas registered in CBI on 31.01.1995.

         3. After investigation was taken over by CBI, one Mohd.
   lrfan was arrested on 07.04.1995. On 09.04 . 1995 he made
   disclosure statements leading to certain recoveries. On
 G 24.04.1995 said Mohd. lrfan made a confessional statement
   which was recorded by PW2 Sharad Kumar, S.P. CBI, under
   section 15 of the Act, inter alia, to the following effect:

          a) Accused Mohd. lrfan along with Maj Tariq of ISi,
 H        Pakistan, Ahmed Hassan, Commander of HM,
STATE OF J & K v. WASIM AHMED MALIK@ HAMID                     1089
            [UDAY UMESH LAUT, J.]

 Muzaffarabad, Mebhoob-ul-Haq, Commander of HM,                A
 Sialkot, Amir-ul-Haq, Naib Commander, HM and Zia
 Kashmiri and others unknown had assembled in the office
 of Jamait-e-lslami, Model Town, Sialkot, Pakistan on
 26.12.1994 and hatched a conspiracy to kill Governor,
 J&K, Senior officers of the Government and other persons      B
 with a view to strike terror in Jam mu city on the occasion
 of Republic Day Celebrations. In furtherance of the said
 conspiracy, accused Mohd. lrfan, Menboob-ul-Haq and
 Ahmed Hassan visited the office of ISi situated near
 village Langaryali, Sialkot Cantt. Pakistan on 26.12.1994     C
 and held a meeting with Major Tariq, Major Ibrahim,
 Captain Farhan, Subedar Anwar of ISi, Pakistan and
 WasimAhmed@ Hamid S/o Jallaluddin Malik R/oAsthan
 Mohalla, Kishtawar, J&K and hatched the plan. In order
                                                               0
 to achieve the object of the aforesaid criminal conspiracy,
 they decided to carry two pre-set time bombs across the
 border to Jammu for planting the same, one near the dais
 and the other near the pavilion of MAM Stadium Jammu
 and deputed Mohd. lrfan and Ghulam Nabi for this task.         E

 b) On 23.12.1994 in the ISi Office, Sialkot at 11 :00 a.m.
 Mohd. lrfan and Wasim Ahmed were imparted
 knowledge about the bombs and their functioning and
 operations, which were to be planted in the MAM F
 Stadium. They were also issued instructions to protect
 the bombs from water and to plant them in the Stadium
 after the night would set in, to take two detonators for
 each bomb, to carry the Khurpa for digging the pits, and
 not to leave any clue of the planting of the bombs at the G
 site. They were also told that the bombs were pre set so
 to explode at the time of the Republic Day function on
 26.01.1995. Capt. Farhan gave Rs. 3,000/- each to
 Mohd. lrfan and WasimAhmed and Rs. 2,000/-to Ghulam
 Nabi in Indian Currency and also a sack to Mohd. lrfan H
1090   SUPREME COURT REPORTS                    [2015) 9 S.C.R.


 A     wherein he put his boots, trouser, khurpa and pistol. Major
       Ibrahim provided one time bomb of 5 Kg each to Mohd.
       lrfan and WasimAhmed duly wrapped in black polythene
       and green coloured sacks. All of them left ISi Office,
       Sialkot and reached Check Post Jhumian at about 10:00
 B     p.m. on 28.12.1994. Subedar Anwar and Mahboob-ul-
       Haq returned to Sialkot, while Mohd. lrfan, WasimAhmed
       and Ghulam Nabi crossed the border and entered into
       Indian Territory concealed the bombs and khurpa near
       River Tawi, outside Jammu city.
 c
       c) On 30.12.1994 Mohd. lrfan, Wasim Ahmed and
       Ghulam Nabi went to a park where Ghulam Nabi stayed
       behind while Mohd. lrfan and WasimAhmed went to MAM
       Stadium where WasimAhmed pointed outto Mohd. lrfan
 D     a place near the dais and also place inside the fenced
       area of north Pavilion where bombs were to be planted.
       On 30.12.1994 at about 7:45 p.m., Mohd. lrfan and
       Wasim Ahmed took out two explosive devices and khurpa
       and left for MAM Stadium leaving Ghulam Nabi there.
 E     Both carried one explosive device each and entered into
       the stadium along with 'khurpa'. Inside the stadium, they
       connected detonators and batteries to the device and
       planted two explosive devices; one near the dais and
       other near the fenced area of the Northern Pavilion after
 F
       digging the pits for each bomb. After planting the bombs,
       they filled both the pits with earth and made shoe marks
       thereon to avoid suspicion. Thereafter, both leftforTawi
       Bridge. Mohd. lrfan concealed the 'khurpa' in the bushes
 G     near Tawi Bridge. Thereafter, both Mohd. lrfan and Wasim
       Ahmed contacted Ghulam Nabi and all three reached
       Pakistani Check Post Jhumian after crossing the
       international border from where they were taken to the
       ISi Office Sialkot. Maj. Tariq, Maj. Ibrahim, Maj. Aamir,
 H     Capt. Farhan praised WasimAhmed and Mohd. lrfan for
   STATE OF J & K v. WASIMAHMED MALIK@ HAMID                   1091
               [UDAY UMESH LAUT, J.]

     accomplishing the task. As desired by Captain Farhan,     A
     Subedar Anwar paid Rs. 5,000/- to Mohd. lrfan for the
     work done by him.

     d) On 03.01.1995 said Mohd. lrfan and WasimAhmed ·
     were again deputed by Mahboob-Ul-Haq to plant one B
     time bomb of 10 Kg. and two bombs of 5 Kg. each
     outside MAM Stadium, Jammu and pursuanttheretothey
     dug a pit on the main road leading to that stadium and
     put the bomb weighing 10 Kg. on 09.01.1995. The other
     two bombs of 5 Kg. each could not be put because of C
     rains, which bombs were then concealed nearTawi River.

     e) On 26.01.1995 Mohd. lrfan, Mahboob-ul-Haq, Aamir-
     ul-Haq,Amzad and 2/3 other Kashmiri boys were present
     in the office of Jamait-e-lslami, Sialkot. They had waitedo
     for the news of bomb explosions, killing of VIPs and
     general public in Jammu. At about 12 noon they received
     news about the explosions in MAM Stadium, in which lot
     of persons had been killed and several other injured. After
     the incident, Maj. Tariq, Capt. Farhan, Subedar Anwar E
     called Mohd. lrfan, WasimAhmed and Mahboob-ul-Haq
     to ISi Office, Sialkot and praised them for planting the
     bombs and declared that their mission had been
     successful even though the Governor of J&K had
     providentially escaped. On 30.01.1995 Mohd. lrfan, F
     Wasim Ahmed and Mahboob-ul-Haq visited office of
     Jamai-~-lslami, Muzaffarabad and met Salauddin, Chief
     of the Hizbul Mujahideen who declared that their mission
     was to spread terrorism in J&K which got fulfilled with
     the bomb explosions in MAM Stadium. Salauddin G
     awarded one shield and Rs. 10,000/- each to Mohd. lrfan
     and WasimAhmed.

      4. After completion of investigation, charge sheet was
filed on 28.09.1995 in the Court of the Special Judge,         H
1,092         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A      Designated TADA Court, Jammu (J&K) u/s 120-B RPC r/w
        section 302, 34, 307 RPC, 4 and 5 of the Explosives
        SubstancesAct and section 3(2), 4 and 6 oftheAct. The charge
        sheet was filed against Mohammad lrfan@Anwar, a Pakistani
        National and other absconding accused. While the matter was
 B      pending before the Trial Court, Ghulam Nabi Guide was
        arrested by J&K police on 25.10.1995. Upon CBI making an
        appropriate application, custody of Ghulam Nabi Guide was
        granted to CBI on 04.12.1995. While in custody, said Ghulam
        Nabi Guide made a confessional statement which was
 C      recorded by PW1 S.K. Bhatnagar Superintendent of Police,
        CBI on 18.12.1995 u/s. 15 of the Act wherein he confessed
        about his involvement as also that of Mohd. lrfan, WasimAhmed
        Malik @ Hamid, Major Tariq, Major Ibrahim, Major Amir,
 D      Captain Farhan, Subedar Anwar (all of ISi, Pakistan), Ahmed
        Hassan, Commander of HM, Sialkot, Amir-ul-Haq, Naib
        Commander, HM Sialkot and Zia Kashmiri R/o Kupwara, J&K
        in the criminal conspiracy culminating in the explosions at the
        MAM Stadium, Jammu 26.01.1955. Supplementary charge
 E      sheet was therefore filed against him. During the pendency of
        the trial, in a jailbreak said Mohd. lrfan escaped from high
        security jail. Whilethe trial was pending and had reached the
        concluding stage, another accused named Wasim Ahmed
        Malik, who was marked as absconding accused, was arrested
 F      on 15.01.2009. Since according to the prosecution there was
        sufficient evidence in the form of confessional statements of
        Mohd. lrfan and Ghulam Nabi Guide, said WasimAhmed Malik
        was supplied with copies of all the relevant material and
        produced before the Trial Court. Thus only two accused i.e.
 G      Ghulam Nabi Guide and Wasim Ahmed Malik, present
        respondents, were tried while the others remained
        absconding.

         5. The evidence led by prosecution during the trial was
 H to prove following aspects, namely:-
    STATE OF J & K v. WASIM AHMED MALIK@ HAMID                      1093
                [UDAY UMESH LAUT, J.]

      a) Thatthere were three bomb explosions on 26.01.1995 A
      at 10:20 a.m. at the places in question, i.e. near the dais
      and at the site of public address system in MAM Stadium
      and on the main road outside the Stadium.

     b) That at the time of such bomb explosions, large             B
     gathering had assembled while the Governor was
     addressing on the occasion of Republic Day
     Celebrations.

     c) That it resulted in death of eight persons and caused       c
     grievous injuries to eighteen persons and disruption of
     the Celebrations.

      d) That the act in question was a terrorist act, within the
      meaning oftheAct.
                                                                    D
     e) That it was an act of conspiracy hatched by the
     accused being tried before the court and by the
     absconding accused and

     f) That the involvement of the accused before the court        E
     was completely made out.

        6. Various witnesses were examined and material was
produced by the prosecution to establish its case. Since the
aspects (a) to (d) mentioned in the preceding paragraph were F
never challenged, we refrain from dealing with evidence
pertaining to said aspects (a) to (d). Proceeding on the basis
that it was a terrorist act, where bomb explosions were caused
with the idea of terrorizing people in general and those who
had assembled there at the gathering in particular, which G
resulted in loss of life of eight persons and injured eighteen
persons, we confine the discussion as regards aspects (e) to
(f) i.e. the role of the accused in the act in question. The trial
Court had also confined itself to the question whether
involvement of the respondents had been made out or not.           H
1094      SUPREME COURT REPORTS                  [2015) 9 S.C.R.


· A      7. In order to bring home the involvement of the
   respondents the prosecution relied upon the confessions of
   Mohd. lrfan and Ghulam Nabi recorded under section 15 of
   the Act. Apart from such confessions and the statements of
   these accused leading to recovery of certain facts, no direct
 B evidence could be placed on record. The evidence principally
   relied upon by the prosecution can be summarized as under:

         A) While in custody, accused Mohd. lrfan upon being
         interrogated, made three disclosure statements, "EXPW-
 C       BD/2, EXPW-S/3 and EXPW-S/2". The testimony of
         PW86 Harbhajan Singh, Investigating Officer shows that
         pursuant to these disclosure statements two khurpas were
         recovered and identification of the shop from where a
         khurpa was purchased was also got done. Those
 D       khurpas were identified in court. The factum of such
         disclosure and consequential recovery was also
         supported by panch witnesses PW23 S.K. Sudan and
         PW24 Gautam Goyal. PW67 Rajesh Kumar, Inspector,
         CBI also testified to similar effect.
 E
          B) On 22. 04.1995 another disclosure statement "EXPW-
          BR" was made by accused Mohd. lrfan leading to the
          recovery of a bomb vide Seizure Memo Ext.PW/BR/1.
          The evidence of PW86 Harbhajan Singh, PW67 Rajesh
 F        Kumar and panch witness PW26 B.R. Saraf were relied
          upon in that behalf.

          C) On 22.04.1995 Mohd. lrfan expressed his desire to
          confess and was produced before PW2 Sharad Kumar,
 G        Superintendent of Police. PW2 Sharad Kumar gave
          warning to the accused that the confession could be used
          against him and also gave him time· to reflect. The
          accused was again presented before the witness on
          23.04.1995 on which date the confessional statement
 H        Ext.PW-SK-3 of accused Mohd. irfan was recorded by
STATE OF J & K v. WASIMAHMED MALIK@ HAMID                   1095
            [UDAY UMESH LAUT, J.]

 PW2 Sharad Kumar. The gist of the confession and the       A
 facts as disclosed therein are dealt with earlier. The
 confession of Mohd. lrfan clearly stated about the roles
 of the confessing accused as well as the co-accused.

 D) After the arrest of Ghulam Nabi Guide, his custody B
 was granted to CBI on 04.12.1995. He having expressed
 his desire to make a confessional statement, said Ghulam
 Nabi Guide was produced before PW1 S.K. Bhatnagar,
 Superintendent of Police, CBI on 16.12.1995. The
 witness administered statutory warning to the accused C
 and also gave him time to rethink. The questions were
 put to the accused which were replied by him and true
 record thereof was made by the witness in Hindi.
 According to the witness he had explained everything to
 the accused and after recording of the statement, thumb D
 impression of the accused was taken on the statement.
 The accused was again produced before the witness on
 18.12.1995 and having expressed the desire to make a
 confessional statement, his statement was recorded by
 the witness. After recording of the statement, it was read E
 over and the accused was made to understand the
 statement whereafter admitting the statement to be true
 the accused put his thumb impression.

 E) The confessing accused Ghulam Nabi Guide was F
 produced in the court of the Chief Judicial Magistrate,
 Jammu on 19.12.1995. The confessional statement in
 original in a sealed cover was also produced, for its
 onward submission to the Designated Court, Jammu.
 The text of the letter was as under:                    G
 "Sir,
       Kindly find enclosed herewith original statement
 (sealed) of accused Ghulam Nabi Guide recorded under
 Section 15 TADA Act in case RC. 1(S)/95/SIU.V for H
1096       SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A        onward submission to the Hon'ble Judge of Designated
          Court, Jammu. The accused has also been brought.
                                    Applicant
                                    Sd/-
                                    19.12.95
 B                                  (S.K. Bhatnagar)
                                    Supdt. Of Police, CBI,
                                    SIC.II, New Delhi."
          F) On the same day, the Chief Judicial Magistrate,
 c        Jammu passed the following order:
                "Submitted in original to the Presiding Officer
                of Designated Court under TADA. Sealed
                envelope is enclosed herewith."
                                                          Sd/-
 D                                  Chief Judicial Magistrate
                                                      JAM MU"
         8. The trial court acquitted both the respondents of all
   the charges leveled againstthem. The case of the prosecution
 E as regards explosion of bombs which resulted in the death of
   eight persons and caused serious injuries to 18 persons was
   not disputed at all. However, the trial court rejected the
   evidence regarding confessional statement of Ghulam Nabi
   Guide on the ground that the confessional statement was
 F recorded in Hindi i.e. not in the language of the accused. It
   observed that the safeguards provided in Rule 15 of the Rules
   made under the Act were not adhered to and therefore, the
   confessional statement of accused Ghulam Nabi Guide was
   required to be discarded. The relevant observations of the trial
 G court in this behalf were as under:

          "In the present case, the confessional statement has
          been recorded in Hindi and not in the language of
          accused. PW Habhajan Ram who is the
 H        Investigating Officer stated tnat he cannot say
    STATE OF J & K v. WASIM AHMED MALIK@ HAMID                 1097
                [UDAY UMESH LAUT, J.)

     whether accused Ghulam Nabi knows Hindi or not.            A
     In any case, accused Ghulam Nabi being a
     Pakistan national, his language cannot be Hindi.
     Even so, PW Sushil Kumar who is the recording
     officer of the confessional statement of accused
     Ghulam Nabi has stated. that accused had given             B
     the statement in Urdu and he had written the same
     in Hindi. No reason has been given by the said
     witness as to why it was not practical to record the
     confession of accused in Urdu. Even so, the record
     does not show that Hindi is the language used by           c
     PW Sushi! Kumar for official purposes. Rather, the
     record would show that the said witness Sushi!
     Kumar uses English languages for official
     purposes. This is apparent from the letter EXPW-
                                                                D
     Sl{fll I written by him to the CJM while forwarding
     the confession to the Designated Court. And finally,
     the language of the Designated Court is Urdu or
     English."

     9. The trial court further observed that as apart from such E
confessional statement there was nothing else against said
Ghulam Nabi Guide, the accused was entitled to be acquitted.
The other accused, namely, WasimAhmed had not given any
confessional statement and the case against him completely F
depended upon the confessional statement of co-accused
Ghulam Nabi Guide. Consequently accused Wasim Ahmed
was also held entitled to be acquitted. The trial court thus
acquitted both the accused vide its judgment and order dated
02.03.2009, which is challenged in the present appeal.           G

      10. The record of the present appeal indicates that
respondent Wasim Ahmed Malik was duly served but chose
not to engage any lawyer. It was reported that respondent
Ghulam Nabi Guide was residing in Pakistan and was served       H
1098         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


 A through the concerned office of the Government of India.
   However, no appearance was entered on behalf of Ghulam
   Nabi Guide, though duly served. Consequently, Mr. Dushayant
   Parashar, learned Advocate was requested to appear for
   respondent Ghulam Nabi Guide under instructions from the
 B Supreme Court Legal Services Committee. Since there was
   no appearance for respondent Wasim Ahmed Malik by order
   dt. 12.03.2015, Mr. Dushayant Parasharwas requested by this
   Court to represent said Wasim Ahmed Malik as amicus curiae.
   We must record our appreciation for the assistance rendered
 C by Mr. Dushyant Parashar.

            11. Appearing in support of the appeal Mr. P.K. Dey,
       learned Advocate submitted:

 D     (a) Confession of accused under Section 15 of the Act is a
       substantive piece of evidence and can form the foundation for
       conviction of an accused for the offences punishable under
       the Act.
       (b) Such confession, subject to the conditions stipulated in
 E     Section 15 of the Act itself, can also be read against the co-
       accused and form basis for his conviction.
   (c) The confession recorded by PW1 S.K. Bhatnagar itself
   disclosed that the entire statement was read over to the
 F confessing accused and only thereafter thumb impression of
   the confessing accused was taken under the statement. Since
   the language used during such conversation was Hindi which
   the confessing accused could understand, the recording of the
   statement was done in Hindi and such recording was
 G completely in conformity with Rule 15 of the Rules framed under
   the Act.
       (d) Lastly, soon after recording of the confession, the
       confessing accused was produced before the Chief Judicial
 H     Magistrate. The Confessional statement in a sealed cover was
    STATE OF J & K v. WASIMAHMED MALIK@ HAMID                  1099
                [UDAY UMESH LAUT, J.]
also produced for onward transmission to the Designated A
Court. Thus, the guidelines also stood completely complied
with.
      Mr. Dushayant Parashar, learned ·amicus curiae
attempted to support the judgment under appeal. The learned B
amicus curiae fairly accepted that the document recording the
confession itself disclosed that the entire statement was read
over and explained to the confessing accused. He further fairly
accepted that there was no effective cross examination on this
issue when PW1 S. K. Bhatnagar was in the box.                  C

       12. Section 15(1) of the Act expressly makes confession
of an accused recorded by a Police Officer admissible in a
trial of such person, co-accused, abettor or conspirator for an
offence punishable under the Act. While upholding the D
constitutional validity of Section 15(1) of the Act, this Court in
Kartar Singh vs. State of Punjab 1 specifically referred to the
statutory obligation in Section 15(2) of the Act and conditions
imposed in Rule 15 of the TADA Rules in paras 258 and 259
respectively and then proceeded to lay down certain guidelines E
in para 263.

       The extent of admissibility of such confession under
Section 15(1) of the Act as against a co-accused was
considered by this Court in State.vs. Nalini & Others2 • Wadhwa F
J. in para 424 observed as under:
      "424. In view of the above discussions, we hold the:
      confessions of the accused in the present case to
      be voluntarily and validly made and under Section
      15 of TADA confession of an accused is admissible        G
      against a co-accused as a substantive evidence.
      Substantive evidence, however, does not
1 ·(1994)3 sec 569
2 (1999)5 sec 253-                                              H
1100         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


 A           necessarily mean substantial evidence. It is the
             quality of evidence that matters. As to what value is
             to be attached to a confession will fall within the
             domain of appreciation of evidence. As a matter of
             prudence, the court may look for some
 B         · corroboration if confession is to be used against a
             co-accused though that will again be within the
             sphere of appraisal of evidence."

            Quadri J. struck a similar note of caution in para 706 as
 c     under:
            "706. It is also to be borne in mind that the evidence
            of confession of a co-accused is not required to be
            given on oath, nor is it given in the presence of the
            accused, and its veracity cannot be tested by cross-
 D
            exa min atio n. Though the evidence of an
            accomplice is free from these shortcomings yet an
            accomplice is a person who having taken part in
            the commission of offence, to save himself,
 E          betrayed his former associates and placed himself
            on a safer plank- "a position in which he can hardly
            fail to have a strong bias in favour of the
            prosecution", the position of the accused who has
            given confessional statement implicating a co-
 F          accused is that he has placed himself on the same
            plank and thus he sinks or sails along with the co-
            accused on the basis of his confession. For these
            reaso.ns, insofar as use of confession of an accused
            against a co-accused is concerned, rule of
 G          prudence cautions the judicial discretion that it
            cannot be relied upon unless corroborated generally
            by other evidence on record."

           13. It is settled position in law that a confession recorded
 H     under Section 15(1) of the Act in accordance with statutory
    STATE OF J & K v. WASIM AHMED MALIK@ HAMID                     1101
                [UDAY UMESH LAUT, J.]

requirements and in keeping with the guidelines is admissible      A
against the maker, his co-accused, abettor or conspirator in a
trial for an offence under the Act, subject to the condition
stipulated in the proviso to Section 15(1 ). Such confession is
taken as substantive piece of evidence and can form the
foundation or basis for conviction of the maker, co-accused,       B
abettor or conspirator. However, the note of caution struck by
this· Court is, insofar as use of confession of an accused
against a co-accused is concerned, rule of prudence would
require the Court not to rely thereon unless corroborated
generally by other evidence on record.                             C

       14. With these principles in mind, we now turn to the
requirements of Rule 15(1) of TADA Rules and the facts in the
matter. Rule 15(1) stipulates that the confession "shall
invariably be recorded in the language in which such               D
confession is made and if that is not practicable, in the
language used by such police officer for official purposes or in
the language of the Designated Court ...... ". The expression
"invariably" itself suggests that the requirement under the Rule
is discretionary and not mandatory. The record in the present      E
matter is very clear that the confessing accused Ghulam Nabi
was produced before PW1 S. K. Bhatnagar on 16.12.1995,
was given statutory warning and time to reflect. Everything
was explained to him and only thereafter his thumb impression       F
was taken. On the next occasion when the confessing accused
was again produced before the witness, soon after the
recording of the confession it was again explained to him, read
over and only thereafter the thumb impression was taken. At
no stage during the recording on these two occasions, nor at       G
the stage when the witness was in the box, there is anything
on record, or even a suggestion that the confessing accused
did not understand or was not made to understand the contents
of the confession. The contents of the confession also disclose
that many of the assertions are personal to the confessing         H
1102         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


 A     accused which could only be gathered after due conversation
       with the Recording Officer.

        15. The language used as a means of communication
   between the confessing accused and the recording officer
 B being Hindi or Hindustani, such recording of confession in Hindi
   language is completely in conformity with the requirement of
   the Rule. The conclusion drawn by the trial court that Ghulam
   Nabi being Pakistani national his language must be Urdu and
   therefore the recording of the confession in a language other
 C than Urdu, must be held to be not in conformity, is wrong.
   Nothing has been placed on record that the confessing accused
   did not understand the line of questioning or that he was not
   made to understand the contents of the confession after the
   recording was complete. In our view the assessment made
 D by the trial. court in this behalf is completely incorrect and
   against the record.

             16. We find no infirmity in the recording of confession by
       PW1 S.K. Bhatnagar. The confession of accused Ghulam Nabi
 E     was recorded in keeping with the guidelines issued by this
       Court and was in accordance with the statutory requirement.
       Holding the confession to be admissible, we have gone through
       the contents of the confession which clearly admitted the guilt
       of the confessing accused and his involvement right from the
 F     hatching of conspiracy to the execution thereof. The confessing
       accused had spoken about various stages since the
       conspiracy was hatched and how the confessing accused had
       helped in transporting the explosive material from across the
       border and then placed it in the pits, dug inside the stadium
 G     and on the main road outside the stadium. The consequential
       explosion of the bombs which was timed with the celebrations
       on account of Republic Day was definitely designed to disrupt
       the celebrations and terrorize the people in general and those
 H     who had gathered at the time of celebration in particular. We,
    STATE OF J & K v. WASIMAHMED MALIK@ HAMID                   1103
                [UDAY UMESH LALIT, J.]

therefore, hold that from the confession, the involvement of A
accused Ghulam Nabi in entering into the conspiracy,
execution and facilitation thereof is completely made out. As
held by this Court, the confession of an accused is a substantive
piece of evidence and his conviction can be founded on such
confession itself. We, therefore, hold Ghulam Nabi Guide to B
be guilty of the offences with which he was charged.

      17. However, as regards the other accused, namely,
Wasim Ahmed Malik, apart from the confession of Ghulam
Nabi Guide that is to say the confession of co-accused, nothing C
has been placed on record which could lend corroboratior:i as
regards his role in the conspiracy and execution thereof. We
have minutely considered the material but could not locate
anything which could afford such corroboration. Going by the
rule of prudence as highlighted by this Court in the case of D
State vs. Nalini (supra), we do not find any justification to
reverse the finding of acquittal as recorded in respect of said
Wasim Ahmed Malik. We, therefore, affirm the acquittal of
Wasim Ahmed Malik as recorded by the trial court in respect
of the offences with which he was charged.                      E

      18. Consequently, this appeal is partly allowed. The
acquittal ofWasimAhmed Malik is confirmed. However, the
order of acquittal in respect of Ghulam Nabi is set aside and
said accused Ghulam Nabi Guide is convicted of the offences F
with which he was charged. This being an appeal against the
decision of acquittal rendered b~ the trial court, we deem it
appropriate to issue notice to said Ghulam Nabi Guide on the
issue of sentence. The authorities are directed to produce
said Ghulam Nabi Guide before this Court so that appropriate G
opportunity to address this Court on the sentence to be
awarded to him, can be afforded to him.

     19. The appeal stands allowed in the aforesaid terms.
The authorities are directed to ensure that Ghulam Nabi Guide   H
1104          SUPREME COURT REPORTS                  (2015) 9 S.C.R.


 A     is taken in custody forthwith and brought before this Court for
       the hearing on sentence.

           20. We also direct the Supreme Court Legal Services
       Committee to pay to Mr. Dushyant Parashar Rs.20,000/- as
 B     remuneration for the assistance rendered to this Court.

       Devika Gujral                               Appeal partly allowed.