TMI Blog2005 (8) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... of the terrorists and 16 persons including 13 security men received injuries. The five terrorists were ultimately killed and their abortive attempt to lay a seize of the Parliament House thus came to an end, triggering off extensive and effective investigations spread over a short span of 17 days which revealed the possible involvement of the four accused persons who are either appellants or respondents herein and some other proclaimed offenders said to be the leaders of the banned militant organization known as Jaish-E-Mohammed . After the conclusion of investigation, the investigating agency filed the report under Section 173 Cr.P.C. against the four accused persons on 14.5.2002. Charges were framed under various sections of Indian Penal Code (for short 'IPC'), the Prevention of Terrorism Act, 2002 (hereinafter referred to as 'POTA') and the Explosive Substances Act by the designated Court. The designated Special Court presided over by Shri S.N. Dhingra tried the accused on the charges and the trial concluded within a record period of about six months. 80 witnesses were examined for the prosecution and 10 witnesses were examined on behalf of the accused S.A.R. Gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed them of all charges. This judgment of the High Court has given rise to these seven appeals two appeals preferred by Shaukat Hussain Guru and one appeal preferred by Mohd. Afzal and four appeals preferred by the State/Government of National Capital Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot Sandhu. It may be mentioned that the accused Mohd. Afzal and Shaukat Hussain Guru are related, being cousins. The 4th accused Navjot Sandhu @ Afsan Guru is the wife of Shaukat Hussain. The third accused S.A.R. Gilani is a teacher in Arabic in Delhi University. It is he who officiated the marriage ceremony of Shaukat Hussain Guru and Navjot Sandhu who at the time of marriage converted herself to Islam. 3.(i) Now, let us make a brief survey of the incident and the investigation that followed, which led to the filing of the charge-sheet, as apparent from the material on record. (ii) There is practically no dispute in regard to the details of actual incident, the identification of the deceased terrorists and the recoveries and other investigations made at the spot. (iii) Five heavily armed persons entered the Parliament House complex in a white Ambassador Car. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further exchange of fire. The evidence of other witnesses reveal that there was hectic movement of the terrorists from gate to gate within the complex firing at the security men on duty and the latter returning the fire. (vi) The Station House Officer of Parliament Street Police Station, Shri G.L. Mehta (PW1) along with his team of police personnel reached the spot after receiving a wireless message. By that time, the firing spree was over. PW1 cordoned off the area. He found one deceased terrorist lying opposite Gate No.1 of the Parliament building, one deceased terrorist at the porch of Gate No.5 and three deceased terrorists lying in the porch of Gate No.9. The Bomb Disposal Squad of NSG, a photographer and a crime team were summoned to the spot. PW1 then deputed three Sub-Inspectors (PWs2 to 4) to conduct investigation at the three gates. PW1 then examined the spot of occurrence, prepared a rough sketch of the scene of occurrence and seized various articles including arms and ammunition, live and empty cartridges and the car and the documents found therein. Blood samples were also lifted from various spots. The photographs of the five slain terrorists were caused to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1. One sheet of paper on which the topographical details regarding the Parliament House building and the compound were handwritten. 4.(i) So far, about the incident and the preliminary investigations at the scene of occurrence regarding which there is practically no dispute. We shall now narrate briefly the further factual details as unfolded by the prosecution: (ii) While investigations were on at the spot, PW20 came to the Parliament Complex and met PW1. PW20 provided the first leads to the investigating officials by informing PW1 that he had sold the Ambassador car used in the attack (DL 3C J 1527) on 11.12.2001. He had come to the spot after seeing the said car on the television screen. PW20 had brought with him a delivery receipt dated 11.12.2001, photocopy of the identity card of one Ashiq Hussain etc. PW20 identified the deceased terrorist (Mohammad) at Gate No.1 as being the said Ashiq Hussain who had purchased the car. (iii) Inspector Mohan Chand Sharma of special cell PW66 undertook the investigations pertaining to the mobile phones. Phone call details were obtained and analysed from the respective cellular mobile service providers. Analysis of the call reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidential address 535, Dr. Mukherjee Nagar, Delhi was the regular subscriber. PW66 then took steps on December 13th for obtaining permission from the Joint Director, I.B. as per the requirements of Indian Telegraph Act for keeping surveillance and tapping of the mobile phone Nos.9811489429, 9811573506 and 9810081228. On 14th December, at 12.52 hours, an incoming call to Gilani's No. 9810081228 was intercepted by S.I. Harender Singh (PW70). The call was in Kashmiri language. A Kashmiri knowing person (PW71) was requested to interpret the call recorded on the tape. He translated the call in Hindi which was recorded in Ext. PW66/4. That was a call from the brother of Gilani which was made from Srinagar. On the same day, at 8.12 P.M. a call was intercepted on the number 9811573506 which disclosed that one woman was talking in a state of panic to a male person whom she addressed as Shaukat. This conversation was transcribed by PW70 as per PW 66/3. The subsequent forensic analysis revealed that the male voice in the conversation was of the accused Shaukat Hussain and that the female voice was that of his wife accused No.4 who was the recipient of the call. The call came from Srin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the operation i.e. No. 9811489429 which established contacts with deceased terrorists minutes before the attack. Mohd. Afzal and Shaukat Hussain, who were arrested by the Srinagar Police at about 11.45 A.M., were brought to Delhi in a special aircraft and were formally arrested in Delhi. The investigation was handed over the PW76 (Inspector Gill of Special Cell) on 16th December. (v) It is the case of the prosecution that on interrogation, they made disclosure statements (Ex.PW 64/1 and PW 64/2) in relation to their role in the conspiracy. On December 16th, Afzal and Shaukat led the investigating team to the various hideouts, viz., Indira Vihar and Gandhi Vihar where the terrorists stayed. On the search of these places, the police recovered chemicals, prepared explosives, detonators, gloves, mixer grinder, motor cycles one belonging to Shaukat and the other purchased by the deceased terrorist Mohammad from PW29 which was allegedly used for reconnaissance (reccee). On December 17th , the investigating officer took Mohd. Afzal to the mortuary at the L.H. Medical College Hospital where Afzal identified the bodies of the five deceased terrorists as Mohammad (dead body found at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the dictation of Shaukat. The confessional statement recorded purportedly in compliance with Section 32 is marked as Ex. PW60/6. The other accused Afzal was also produced before PW60 at 7.10 P.M. on 21st December. After he expressed the desire to make the confession, his statement was recorded by PW60 in his own handwriting allegedly as per the dictation of the said accused. This is Ex.PW60/9. PW80 obtained copies of the confessional statements in sealed envelopes. In substance, both Afzal and Shaukat confessed having been parties to the conspiracy to launch an attack on the Parliament House. The details of the confessions will be adverted to later. On 22nd December PW80 produced the accused persons before the Addl. Chief Metropolitan Magistrate (PW63) in compliance with Section 32 of POTA. The learned Magistrate conducted the proceedings in respect of each of the accused persons in order to satisfy himself that the statements recorded by PW60 were not the result of any inducements or threats. No complaint of any such threat or inducement was made to PW63. Shaukat Hussain and SAR Gilani were remanded to judicial custody on 22nd December itself. However, the police custody of Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2003) 6 SCC 641. The verdict of the trial court was given on 16th and 18th December, 2002. The details of conviction and sentences have already been referred to. As noticed earlier, the High Court allowed the appeals of A3 and A4 and dismissed the appeals of A1 and A2 and their death sentences were confirmed. 5. Preliminary submissions: (i) There are certain issues which arise at the threshold viz., validity of sanction orders, non-addition of POTA offences at the beginning and framing of charges which need to be addressed before we embark on a discussion of other questions. Sanction: (ii) Section 50 of POTA enjoins that no Court shall take cognizance of offences under the Act without the previous sanction of the Central Government or as the case may be, the State Government . So also, Section 196 of the Code of Criminal Procedure enacts a bar against taking cognizance of any offence punishable under Chapter VI of the Indian Penal Code except with the previous sanction of the Central Government or the State Government. Some of the offences charged in the present case are under Chapter VI of IPC. (iii) It is first contended by the learned senior counsel Mr. Ram J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Lt. Governor who continues to be the Administrator also derives his or her authority to grant sanction under Section 50 of POTA by virtue of the legislative fiction created by Clause (h) of Section 2 read with Article 239. The Administrator is deemed to be the State Government for the purpose of Section 50 of POTA. In effect and in substance, there is a clear delegation of power statutorily conferred in favour of the Administrator (designated as Lt. Governor) in respect of granting sanction under POTA. The fact that the sanction order carries the designation of the Lt.Governor is of no consequence and does not in any way impinge on the operation of Section 2(h) read with Article 239. POTA is a Parliamentary enactment. Sub-Clause (b) of Clause 3 of Article 239AA makes it explicit that notwithstanding the law making power conferred on the Legislative Assembly of NCT, the Parliament retains its power under the Constitution to make laws with respect to any matter for a Union Territory or any part thereof. The reliance sought to be placed on Goa Sampling Employees' Association Vs. G.S. Co. of India Pvt. Ltd. [(1985) 1 SCC 206] is rather misconceived. That case turned on the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant file that the Lt.Governor saw the file and he himself approved the proposed sanction. The grant of sanction was not an act done by a delegate of the Lt. Governor under the Business Rules. It may be noted that the sanction file was produced before the trial Court and was allowed to be perused by the defence counsel vide para 149 of the trial Court's judgment. (v) As regards the sanction under Section 196 Cr.P.C. it is recited in the sanction order (Ext.P11/2) that the Lt. Governor acted in exercise of powers conferred by sub-Section (1) of Section 196 Cr.P.C. read with the Government of India, Ministry of Home Affairs notification dated 20th March, 1974. Under that notification, there was delegation of powers to the Lt. Governor to grant sanction. The said notification which finds place in the Annexures to the written submissions made on behalf of Gilani shows that it was issued under Article 239(1) of the Constitution enabling the Administrator of the Union Territory to discharge powers and functions of the State Government under the Cr.P.C. We accept the submission of the learned senior counsel for the State that the delegation of power contained in the said notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in which the expression 'along with other offences' occurs, it must be reasonably construed so as to be referable to POTA offences mentioned in the opening clause. The operative part of the order is more explicit inasmuch as the Lt.Governor granted sanction for the prosecution of the four accused in a competent Court for committing the said offences punishable under Sections 3, 4, 5, 20 21 of the POTA . It is pertinent to notice that in the sanction order under Section 196 Cr.P.C. the POTA offences do not find specific mention at all. Thus, a distinction was maintained between the sanction under POTA and the sanction under Cr.P.C. The other submission that the addition of the offence under Section 120B which does not require sanction, reveals total non-application of mind, does not appeal to us. Though the conspiracy to commit the offences punishable by Section 121 is covered by Section 121A, probably Section 120B was also referred to by way of abundant caution though the prosecution for the said offence does not require sanction. At any rate, the insertion of a seemingly overlapping provision does not and cannot affect the validity of the sanction order. Nor can it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority The ruling of the Privy Council was cited with approval by this Court in Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124] and certain other cases. Ultimately, the test to be applied is whether relevant material that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting sanction. We are of the view that this test has been amply satisfied in the instant case. The sanction orders on their face indicate that all relevant material viz., FIR, disclosure statements, recovery memos, draft charge sheet and other material on record was placed before the sanctioning authority. The fact that the sanctioning authority perused all this material is also discernible from the recital in the sanction orders. The sanction orders make it clear that the sanctioning authority had reached the satisfaction that prima facie the accused committed or conspired to comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious, the sanctioning process mentioned in Section 20-A(2) must have been adopted more seriously and exhaustively than the sanction contemplated in other penal statutes The above observations do not mean that different standards should be applied for judging the validity of a sanction made under the provisions of TADA or POTA and the sanctions under ordinary laws. That is not the ratio of the decision. The learned Judges were only pointing out that enough seriousness was not bestowed in the process of granting sanction for prosecution under a stringent law. The observations contained in para 10 turned on the facts of that case which are telling. It was noticed that the only document sent to the sanctioning authority, namely, the Director General of Police, was the FIR and the letter of the Superintendent of Police giving only skeletal facts. It was further noticed that the Director-General did not even grant sanction for the prosecution but what he did was to give permission to add certain Sections of TADA. Thus, it was a case of utter non-compliance with the elementary requirements governing sanction. The facts of the present case are vastly different. No separate argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion arises whether there was deliberate failure on the part of the investigating agency to invoke POTA initially in order to circumvent the requirements of Sections 45 52. (ii) Incidentally, another question raised is whether there was manipulation of FIR by not showing the POTA offences though in fact POTA was resorted to by that date. In regard to the latter aspect, the learned counsel for the accused has drawn our attention to the letter of AIRTEL (Cell phone service provider) addressed to the I.O. M.C. Sharma (PW66). In that letter (Ext.PW35/1), while giving the reference to the FIR dated 13.12.2001, the offences under various Sections of POTO were mentioned in addition to other offences. From this, an inference is sought to be drawn that the FIR was tampered with by deleting reference to POTO Sections so as to make it appear that on the 13th 14th December when the interceptions took place, the investigation was not extended to POTO offences. We find it difficult to accept this contention. We find no basis for the comment that the FIR would have been manipulated by deleting the POTO offences. No such suggestion was ever put to the police officials concerned, namely, PWs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructive activities in a planned manner . is a clear pointer that the investigating authority was conscious of applicability of POTO from the beginning, it is contended. Though we feel that POTO provisions could have been invoked on the very first day having regard to the nature and manifestations of this grave crime, we find no justification to characterize the action of the concerned police officers as malafide or motivated. It cannot be disputed that POTA contains drastic and stringent provisions both substantive and procedural, for dealing with special categories of offences which have bearing on the security and integrity of the country. In view of this special feature of the law, it is necessary to bestow sufficient care and thought before prosecuting an offender under this special law instead of proceeding under the ordinary law. This aspect has been emphasized in more than one decision of this Court dealing with TADA provisions. In Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijiaya [(1990) 4 SCC 76] this Court after noticing the views expressed in Usmanbhai Dawoodbhai Memon Vs. State of Gujarat [(1988) 2 SCC 271] observed thus: the provisions of the Act n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass the provisions of POTO. Charges whether defective? 7 (i) We now turn to the next contention of the charges being defective. According to Shri Ram Jethmalani, the first charge which is a charge under Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to wage war and to commit a terrorist act is punishable under Section 121A IPC and Section 3(3) of the POTA respectively. Therefore, according to the learned counsel, the charge under Section 120B is misplaced. It is also contended that the charge does not set out in clear terms, the exact period during which the conspiracy was allegedly hatched. The learned counsel further submits that the alleged confessional statements on which the prosecution relied would clearly show that the conspiracy started only in the first week of December, 2001, yet the period of offence was stated to be on or before 13.12.2001 . (ii) It is settled law that a 'fundamental defect' should be found in the charges if the Court has to quash it. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Other legal issues We shall, now, deal with certain legal issues, which have been debated before us in extenso. These issues have a bearing on the admissibility/relevancy of evidence and the evidentiary value or weight to be attached to the permissible evidence. 8. Law regarding confessions We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions'-which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Section 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminating fact is not of itself a confession. Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law . (vide Taylor's Treatise on the Law of Evidence Vol. I). However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Gounden v. The State of Madras (1958 SCR 428). The same learned Judge observed in Haroom Hazi Abdulla v. State of Maharashtra [1968 (2) SCR 641] that a retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false. There was a further observation in the same paragraph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent Judge, the comment that the retracted confession is a weak link against the maker goes counter to a series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. In Parmanand Pegu v. State of Assam [2004 (7) SCC 779] this Court while adverting to the expression corroboration of material particulars used in Pyare Lal Bhargava's case clarified the position thus: By the use of the expression 'corroboration of material particulars', the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan case. The analysis of the legal position in paragraphs 18 19 is also worth noting: Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be teste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese words imply that the confession of a co- accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. The import of this expression was succinctly explained by the Privy Council in Bhuboni Sahu vs. King (AIR 1947 PC 257) in the following words: The Court may take the confession into consideration and thereby, no doubt, makes its evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence . (emphasis supplied) After referring to these decisions, a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [1964 (6) SCR 623] further clarified the legal position thus: .In dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in sub-sections (4) (5) is that the person from whom the confession was recorded is required to be produced before a Chief Metropolitan Magistrate or Chief Judicial Magistrate, within 48 hours, together with the original statement of confession in whatever manner it was recorded. The CMM or the CJM shall then record the statement made by the person so produced. If there is any complaint of torture, the police shall be directed to produce the person for medical examination and thereafter he shall be sent to the judicial custody. 9. Section 15 of TADA It is necessary to advert to the exposition of law on the probative quality of the confession recorded by the empowered police officer under Section 15 of TADA Act. We may recall that under Section 15, the confession is admissible in the trial of the person who made the confession or the co- accused/abettor/conspirator. In State vs. Nalini (supra), Thomas, J took the view that the confession coming within the purview of Section 15 is a substantive evidence as against the maker thereof but it is not so as against the co-accused/abettor or conspirator in relation to whom it can be used only as a corroborative piece of evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive evidence, the learned Judge, however, qualified his remarks by observing thus: ` Substantive evidence, however, does not 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 corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence. Thomas, J. was of the view that the non-obstante words in Section 15(1) of TADA were not intended to make it substantive evidence against the non- maker, and it can be used only as a piece of corroborative material to support other substantive evidence. Reference is to be made to a recent decision of this Court in Jameel Ahmed anr. V. State of Rajasthan [2003 (9) SCC 673] a case arising under TADA. After a survey of the earlier cases on the subject, this Court observed: If the confessional statement is properly recorded satisfying the mandatory provisions of Section 15 of TADA Act and the rules made thereunder and if the same is found by the Court as having been made volun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d leave it to the discretion of the court whether to insist on corroboration or not, even if it is retracted. The better view would be to follow the same rule of prudence as is being followed in the case of confessions under general law. The confessional statement recorded by the police officer can be the basis of conviction of the maker, but it is desirable to look to corroboration in a broad sense, when it is retracted. The non obstante provision adverted to by the learned Judges should not, in our considered view, affect the operation of the general rule of corroboration broadly. As regards the confession being used against a co-accused, this Court in Jameel Ahmed's case (supra), laid down the following propositions: (iii) In regard to the use of such confession as against a co- accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds the acceptance of the ratio laid down by Privy Council in Bhuboni Sahu in the context of a confession covered by Section 30 of Evidence Act. The counsel reminds us that admissibility is one thing, and the weight to be attached to the evidence is another. The learned counsel Mr. Ram Jethmalani repeatedly pointed that the crucial observations of the Constitution Bench in Kartar Singh's case (supra) were not noticed by this Court in Nalini's case and this error, according to the learned senior counsel, perpetuated. The learned counsel has drawn our attention to the categorical observation of this Court in paragraph 255 of the majority judgment to the effect that the present position is in conformity with Section 30 of the Evidence Act. He has also drawn our attention to the submission of the learned Additional Solicitor General in Kartar Singh's case that the probative value of the confession recorded under Section 15 should be left to the Court to be determined in each case on its own facts and circumstances. According to the learned counsel, the confession of co-accused should not have been elevated to the status of confession operating against the maker. The conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulty in accepting the proposition that there could be a joint trial and the expression the trial of such person may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co- accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences (vide the observations of Ahmadi, J (as he then was) in Niranjan Singh vs. Jitendra [(1990) 4 SCC 76] at page 86, which were cited with approval in Kartar Singh's case). We would expect a more explicit and transparent wording to be employed in the section to rope in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court under Section 30 for the limited purpose of corroborating or lending assurance to the other evidence on record cannot be accepted. Learned senior counsel appearing for the State submits that there is no conflict between Section 32 of POTA and Section 30 of the Evidence Act and therefore the confession recorded under Section 32(1) of POTA can be taken into consideration against the co-accused, at least to corroborate the other evidence on record or to lend assurance thereto. There is no difficulty in accepting the contention that Section 30 of the Evidence Act can also play its part in a case of trial under POTA, especially when the other offences under the IPC are also the subject matter of trial. But a confession to the police officer by a person in police custody is not within the realm of Section 30 of the Evidence Act and therefore such a confession cannot be used against the co-accused even under Section 30 of the Evidence Act. While on the subject of confession made to a police officer under sub- section (1) of Section 32 of POTA, it would be apposite to refer in brief to the decision of this Court in Kartar Singh v. State of Punjab [1994 (3) SCC 569]. The cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the authority has obtained an invented confession. Another interesting part of the discussion is the manner in which the Court gave its response to the critical comments made by the counsel as to the reprehensible methods adopted to extract the confession. The learned Judges said with reference to this comment: if it is shown to the Court that a confession was extorted by illegal means such as inducement, threat or promise, the confession thus obtained would be irrelevant and cannot be used in a criminal proceeding against the maker. The Court thus merely emphasized the obvious and added a remark that the Court on several occasions awarded exemplary compensation to the victim at the hands of the police officials. The Court took the precaution of clarifying that the police officer investigating the case under TADA Act can get the confession or statement of the accused recorded under Section 164 Cr.P.C. by a Magistrate. The Constitution Bench Judgement is binding on us. In fact, the ratio of that Judgment applies with greater force to the POTA, as the guidelines set out by the Constitution Bench are substantially incorporated into Section 32. It is perhaps too late in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the guilt before a police officer so that it could pave the way for conviction in a serious offence? We find no direct answer to these questions either in Kartar Singh's case (supra) or the latest case of People's Union for Civil Liberties vs. Union of India [2004 (9) SCC 580]. The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law, as said by the eminent American jurist Schaefer. We may recall as well the apt remarks of Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC 424]: The first obligation of the criminal justice system is to secure justice by seeking and substantiating truth through proof. Of course, the means must be as good as the ends and the dignity of the individual and the freedom of the human person cannot be sacrificed by resort to improper means, however worthy the ends. Therefore, 'third degree' has to be outlawed and indeed has been. We have to draw up clear lines between the whirlpool and the rock where the safety of society and the worth of the human person may co-exist in peace. In People's Union for Civil Liberties case, a two Judge Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ario, we have serious doubts whether it would be safe to concede the power of recording confessions to the police officers to be used in evidence against the accused making the confession and the co-accused. The Law Commission of India in its 185th Report on review of the Indian Evidence Act has expressed strong views disfavouring the admission of confessions made to Police Officers. The Commission commented that the basis for introducing Sections 25 and 26 in the Evidence Act in 1872 holds good even today. The Commission observed we are compelled to say that confessions made easy, cannot replace the need for scientific and professional investigation . In England, even though the confessions to the police can be received in evidence the voluntariness of the confessions are tested by adopting stringent standards. Section 76 of the Police and Criminal Evidence Act, 1984, deals with confession in England. Sub-section (2) of Section 76 is important: (2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained- (a) by oppression of the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an atmosphere free from threat and inducement. There is one argument of Mr. Sushil Kumar appearing for the accused Afzal which needs to be adverted to. His contention is that the word 'evidence' is not used either under Section 32(1) or Section 32(2) of POTA unlike Section 15(2) of TADA which requires the Police Officer to warn the person making the confession that it may be used as 'evidence' against him. He therefore argues that the only route through which the confession can be treated as evidence against the accused is by having recourse to Section 164 Cr.P.C. The contention, in our view, is devoid of merit. The mere fact that the expression 'admissible only' is used without being followed by the words 'in evidence', does not, by any canon of construction, deprive the confession recorded under Section 32 of POTA its evidentiary value; otherwise Section 32(1), more especially the expression 'admissible' contained therein will become ineffectual and senseless. We cannot, therefore, accept this extreme contention. 11. Section 10 of Evidence Act The next question is whether the confession of the accused which cannot be proved agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends that there is more than prima facie evidence in this case that there was a conspiracy to launch an attack on the Parliament building and therefore, the first ingredient of the reasonable ground of belief is satisfied. The next and more controversial part of the submission is that the statement of one of the conspirators who has made the confession throwing light on the common intention of all the accused can be used in evidence against the co-conspirators or the co-accused irrespective of the fact that such statements were made after the conclusion of the conspiracy and after the accused were arrested. As the law laid down by the Privy Council in Mirza Akbar vs. King Emperor (AIR 1940 PC 176) on the interpretation of Section 10 does not support the contention of the counsel for the State, the learned counsel was critical of the dictum laid down in that case and equally critical of the long line of authorities which accepted the ruling of the Privy Council. This is what Lord Wright said in Mirza Akbar's case: This being the principle, their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal [2002 (7) SCC 334], stated the legal position thus: We cannot overlook that the basic principle which underlies Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10. Ultimately, the test applied was whether any particular accused continued to be the member of the conspiracy after his arrest. Though the learned Judge stated that similar view was expressed by this Court in State vs. Nalini , we find no such statement of law in Nalini's case. However, this accidental slip does not make any difference. The law is thus well settled that the statements made by the conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour. The limitation inferred by the Privy Council that the acts or statements of the conspirator should have been made when the conspiracy was afoot was not imported in to the interpretation of the section. On the other hand, the proposition No.4 might indicate that even the statement made and acts done after a person left the conspiracy, could be proved against others. The Privy Council decision in Mirza Akbar's case was not referred to. The issue as raised now was not discussed. However, the 1st Caveeshar case (AIR 1957 SC 747) in which the Privy Council's decision was cited, was adverted to. In the 1st Caveeshar's case also decided by a three Judge Bench (supra), the ratio of the Privy Council decision in Mirza Akabar's case was approved and applied. The learned counsel then referred to the case of Ammini ors. vs. State of Kerala [1998 (2) SCC 301], wherein this Court referred to Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy and (ii) that they were parties to the conspiracy. As pointed out by the Privy Council in Mirza Akbar's case, the thing done, written or spoken in the course of carrying out the conspiracy was receivable as a step in the proof of the conspiracy . This dictum was approvingly referred to in the 1st Caveeshar case (AIR 1957 SC 747). The learned senior counsel then referred to the decision of this Court in Tribhuwan vs. State of Maharashtra [1972 (3) SCC 511], in which the accused examined himself as a witness and his evidence was admitted under Section 10 of the Evidence Act, mainly on the ground that his deposition could be subjected to cross-examination. So also in the case of K. Hashim vs. State of Tamil Nadu, the evidence of co-accused who subsequently became approver, was admitted under Section 10. These two cases rest on a different principle and cannot be said to have differed with the view taken in Mirza Akbar's case. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r parties/accused. It is interesting to note that the decision in State of Gujarat vs. Mohammed Atik (supra) rendered by one of the learned Judges, was noticed but the crucial part of the observation therein ruling out the applicability of Section 10 was not adverted to. The 2nd Caveeshar case (AIR 1965 SC 682) was also noticed. However much we are convinced of the arguments advanced by the learned senior counsel for the State, we are unable to give effect to the law laid down in these two cases which runs counter to the larger Bench decisions noticed supra, especially when the previous decisions bearing on the point were not discussed. No doubt the judgment in 2nd Caveeshar case was of three learned Judges but the 4th proposition laid down therein is not so categorical as to convey the idea that even the confessional statement recorded after the arrest, could be used against the co-conspirators. The case of Queen Vs. Blake decided in 1844 [115 ER 49] is illustrative of the parameters of the common law rule similar to Section 10 of the Indian Evidence Act. The Privy Council in the case of R Vs. Blake [AIR 1940 PC 176] referred to that case and observed thus: The leading case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s Laws of England. The definition given therein is: 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 indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied .. and the offence continues to be 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 . In America, the concept of criminal conspiracy is no different. In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given: A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy. Earlier to the introduction of Section 120-A and B, conspiracy per se was not an offence under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. State of Punjab [1977 (4) SCC 540], Goswami, J, speaking for a three-Judge Bench analysed the legal position relating to criminal conspiracy. At pages 610-611, the learned Judge observed that the very agreement, the concert or league is the ingredient of the offence. and that it is not necessary that all the conspirators must know each and every detail of the conspiracy . It was then observed that there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators. Dr. Sri Hari Singh Gour in his well known 'Commentary on Penal Law of India', (Vol.2, 11th Edn. page 1138) summed up the legal position in the following words: In order to constitute a single general conspiracy there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient . The expression 'physical manifestation' seems to be the phraseology used in the Article referred to by the learned Judge. However, the said expression shall not be equated to 'overt act' which is a different concept. As rightly stated by the learned senior counsel, Mr. Gopal Subramanium, the phrase has reference to the manifestation of the agreement itself, such as by way of meetings and communications. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy . The pertinent observation of Judge Hand in U.S. vs. Falcone (109 F. 2d,579) was referred to: This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders. At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows: One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle. We have to explain the decision in Ferojuddin's case at length in view of heavy reliance placed on it. The Court observed thus at para 25: 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 objectives, whether or not he knew of the crimes or aided in their commission In para 26, the discussion was on the point of admissibility of evidence i.e. whether declaration by one conspirator made in furtherance of a conspiracy and during its subsistence is admissible against each co-conspirator. In other words, the question of applicability of the rule analogous to Section 10 of the Evidence Act was the subject matter of discussion. The following passage from Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of the substantive law of crime does not hold good under Indian law. The reason is that the declarations contemplated by Judge Hand are made admissible under Section 10 of the Indian Evidence Act but not under the substantive law of crimes. Thus, the conclusion reached at paragraph 27 overlooked the difference in legal position between what was obtaining in USA in the year 1926 and the statutory rule of evidence contained in the Indian Evidence Act. The proposition in the earlier para i.e. paragraph 25 (quoted supra) was too widely stated, probably influenced by the observations in Van Riper's case. In fact, in Ferojuddin's case, some members of the group who conspired were convicted only under Section 120B whereas the other members who accomplished the objective of conspiracy by committing the planned offence were convicted for the substantive offence as well as for the conspiracy. Thus, the observations made therein are no more than obiter dicta. The very decision of Maj. E.G. Barsay referred to by their Lordships make it clear that for individual offences, all the conspirators may not be liable though they are all guilty for the offence of conspiracy. In Ajay Aggar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of Section 34 IPC, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But Section 120B does not convey that idea. Learned senior counsel Mr. Gopal Subramanium placed reliance on the summary of legal position as to proof of conspiracy by Coleridge, J in Regina vs. Murphy [(1837) 173 E.R. 502] which is as under: I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be considered. The principle laid down in that case is discernible from the following summary in the head note. Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence under Section 1(1) of the Criminal Law Act 1977 is established if, and only if, it is shown that he intended when he entered into the agreement to play some part in the agreed course of conduct involving the commission of an offence. Furthermore, a person may be guilty of conspiring even though he secretly intended to participate in only part of the course of conduct involving the commission of an offence. The learned counsel submits that in order to sustain a charge of conspiracy under Section 120A, the same test could be usefully applied. That means, there must be evidence to the effect that the accused who entered into the agreement in the nature of conspiracy had intended to play and played some part in the agreed course of conduct involving the commission of an offence. But, if there is no evidence attributing any role to the accused in the course of conduct involving the commission of offence, he or she cannot be held guilty unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar cell phones belonged to the other accused Afzal and Shaukat, that the Christian colony room was arranged by Shaukat in order to accommodate the slain terrorist Mohammad, that police uniforms and explosives 'were arranged' and that the names of the five deceased terrorists were so and so are relevant under Section 27 of the Evidence Act as they were confirmed to be true by subsequent investigation and they reveal the awareness and knowledge of Gilani in regard to all these facts, even though no material objects were recovered directly at his instance. The arguments of the learned counsel for the State run as follows:- The expression discovery of fact should be read with the definition of fact as contained in Section 3 of the Evidence Act which defines the fact as 'meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious' (emphasis supplied). Thus, the definition comprehends both physical things as well as mental facts. Therefore, Section 27 can admit of discovery of a plain mental fact concerning the informant- accused. In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinguish it and explain its real ratio. The learned senior counsel appearing for the defence have contended that the scope of Section 27 should not be unduly stretched by having resort to the second part of the definition of 'fact' in Section 3 of the Evidence Act. According to Mr. Ram Jethmalani, it is too late in the day to contend that the 'fact' discovered within the meaning of Section 27 could either be the physical object or the mental fact of which the accused giving the information is conscious. The learned counsel submits that on a true understanding of the ratio of the opinion of the Privy Council in Kotayya's case, the word 'fact' shall be construed as being a combination of both the elements. The fact discovered, it was ruled by the Privy Council, was the physical fact of hidden spear and the mental fact was that the accused knew that he had so hidden it at a particular place. Great reliance was placed on the fact that in Kotayya's case, the full Bench decision of the Lahore High Court in Sukhan Vs. Emperor [AIR 1929 Lahore 344] and the division Bench decision of the Bombay High Court in Ganuchandra Vs. Emperor [AIR 1932 Bombay 286] we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned counsel reinforces his argument by stating that in the context and setting of Section 27 and in the company of the word 'discover', fact only means the object, its location and concealment. The entire definition of 'fact' should not be bodily lifted into Section 27. The fact discovered is the concealment or disposal of the object which is brought to light by the accused, but not anything relating to the object in general. All the learned counsel for the defence then stressed on the expression 'thereby discovered' which means discovered pursuant to information which he himself supplied. Countering the argument of the learned senior counsel for the State, the learned counsel for the accused then contend that the information and the discovery of fact should be intimately and inextricably connected and the confirmation by means of subsequent investigation cannot be considered to be discovery of fact as a direct result of information furnished by the accused. Apart from Kotayya's case, heavy reliance is placed on the judgment of Privy Council in Kotayya's case. We have noticed above that the confessions made to a police officer and a confess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent the legal position has got crystallized with the rendering of this decision. The authority of Privy Council's decision has not been questioned in any of the decisions of the highest Court either in the pre or post independence era. Right from 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State. The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect Then, their Lordships proceeded to give a lucid exposition of the expression 'fact discovered' in the following passage, which is quoted time and again by this Court: In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were discovered many years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, which revealed the connection between the objects produced and the commission of murder was held to be admissible under Section 27 in its entirety. This approach was criticized by the Privy Council. To complete the sequence, we may refer to another decision of the Madras High Court in Emperor Vs., Ramanuja Ayyangar [AIR 1935 Madras 528]. In that case, the majority of learned Judges had disagreed with the view taken in Sukhan's case that the expression 'fact' in Section 27 should be restricted to material objects or something which can be exhibited as material object. It was held that the facts need not be self-probatory and the word 'fact' as contemplated by Section 27 is not limited to actual physical material object . Emphasis was laid on the wording 'any fact'. In this respect, the view taken in Sukhan's case (supra) was dissented from. The minority view was that the discovery of a witness to the crime or the act of the accused in purchasing the incriminating material cannot be proved by invoking Section 27. We have referred to this decision in Ramanuja Ayyangar's case for the reason that the expression 'fact' was given a wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact' was not considered. Where a physical object was discovered in consequence of the information furnished, which part of that information/statement becomes relevant was the line of inquiry before the Privy Council. No doubt, the illustrations given coupled with the fact that the same learned Judge took a particular view on this aspect in Ganuchandra's case may lead to an impression that the learned Judges of the Privy Council understood the expression 'fact' primarily in the sense of material object but, as observed already, the illustrations given are not exhaustive. We are of the view that Kotayya's 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 the mental awareness of the informant as to its existence at a particular place. We now turn our attention to the precedents of this Court which followed the track of Kotayya's case. The ratio of the decision in Kotayya's case reflected in the underlined passage extracted supra was highlig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weapon from a witness (PW11) and that he would take the Police to him, the Police went to the Thari of PW11 where the accused pointed out PW11 to the Police. It was contended on behalf of the accused that the information that he purchased the dagger from PW11 followed by his leading the Police to the Thari and pointing him out was inadmissible under Section 27 of the Evidence Act. This argument was accepted. Jaganmohan Reddy, J. speaking for the Court observed thus: In our view there is force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case?. Not the dagger but the dagger hid under the stone which is not known to the Police (see Pulukuri Kotayya and others v. King Emperor). But thereafter can it be said that the information furnished by the accused that he purchased the dagger from PW11 led to a fact discovered when the accused took the police to the Thari of PW11 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible . Then follows the statement of law: But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW11 and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused . In an earlier paragraph, the Court stressed the need to exercise necessary caution and care so as to be assured of the credibility of the information furnished and the fact discovered. Confronted with this decision which affirms the law laid down in Sukhan's case (supra), and which militates agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yya's case. However, there was no elaboration. The next endeavour of Mr. Gopal Subramanium was to convince us that the precedential force of the judgment in OM PRAKASH has been considerably eroded by the subsequent pronouncements. Two decisions have been cited to substantiate his contention. They are: Mohd. Inayatullah vs. State of Maharashtra (supra) and State of Maharashtra vs. Damu (supra). We do not think that in any of these decisions 'discovery of fact' was held to comprehend a pure and simple mental fact or state of mind relating to a physical object dissociated from the recovery of the physical object. Let us revert back to the decision in Mohd. Inayatullah's case. The first sentence in paragraph 13 of the following passage which has already been referred to is relied on by the learned senior counsel for the State. At one time it was held that the expression fact discovered in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan V. Crown; Rex V. Ganee). Now it is fairly settled that the expression fact discovered includes not only the physical object produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A motor cycle was recovered from the house of A2 and its tail lamp was found broken. The broken glass piece recovered from the spot matched with and fitted into the broken tail lamp. With these facts presented to the Court, the learned Judges after referring to Kotayya's case, reached the following conclusion in paragraph 37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A2 Guruji, it can safely be held that the investigating officer discovered the fact that A2 Guruji had carried the dead body on that particular motorcycle up to the spot . (emphasis supplied) The events highlighted in the case speak for themselves and reveal the rationale of that decision. The view taken in Damu's case does not make any dent on the observations made and the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Officer chooses not to take the informant- accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence. How the clause as relates distinctly to the fact thereby discovered has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kotayya's case, various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah's case (supra). Sarkaria, J. analyzed the ingredients of the Section and explained the ambit and nuances of this particular clause in the following words: ..The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wording a person excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person . There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law. Another case which needs to be noticed is the case of Ramkishan vs. Bombay State [AIR 1955 SC 104]. The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokuldas Dwarkadas decided by Bombay High Court, a passing observation was made that in the said case the High Court had rightly held that a joint statement by more than one accused was not contemplated by Section 27 . We cannot understand this observation as laying down the law that information almo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments i.e. Ext.35 series were filed by PW35 who is the person that signed the covering letter dated 17th December bearing Ext.35/1. PW35 deposed that all the call details are computerized sheets obtained from the computer . He clarified that the switch which is maintained in the computer in respect of each telephone receives the signal of the telephone number, called or received and serves them to the Server and it is the Server which keeps the record of the calls made or received. In case where call is made and the receiver does not pick up the phone, the server which makes a loop of the route would not register it . As far as PW36 is concerned, he identified the signatures of the General Manager of his Company who signed Ext.P36 series. He testified to the fact that the call details of the particular telephone numbers were contained in the relevant exhibits produced by him. It is significant to note that no suggestion was put to these two witnesses touching the authenticity of the call records or the possible tampering with the entries, although the arguments have proceeded on the lines that there could have been fabrication. In support of such argument, the duplication of entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the witnesses were responsible officials of the concerned Companies who deposed to the fact that they were the printouts obtained from the computer records. In fact the evidence of PW35 shows that he is fairly familiar with the computer system and its output. If there was some questioning vis-`-vis specific details or specific suggestion of fabrication of printouts, it would have been obligatory on the part of the prosecution to call a technical expert directly in the know of things. The following observations of House of Lords in the case of R Vs. Shepard [1993 AC 380] are quite apposite: The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly. Such a view wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecked and rectified the mistake that occurred. As already noticed, it was not suggested nor could it be suggested that there was any manipulation or material deficiency in the computer on account of these two errors. Above all, the printouts pertaining to the call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not. We are therefore of the view that the call records are admissible and reliable and rightly made use of by the prosecution. 16. Interception of Phone Calls The legality and admissibility of intercepted telephone calls arises in the context of telephone conversation between Shaukat and his wife Afsan Guru on 14th December at 20:09 hrs and the conversation between Gilani and his brother Shah Faizal on the same day at 12:22 hrs. Interception of communication is provided for by the provisions contained in Chapter V of the POTO/POTA which contains Sections 36 to 48. The proviso to Section 45 lays down the pre-requisite conditions for admitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant orders authorizing and confirming the interception of specified telephone numbers. It is not shown by the prosecution that the Joint Director, Intelligence Bureau who authorized the interception, holds the rank of Joint Secretary to the Government of India. Secondly, the confirmation orders passed by the Home Secretary (contained in volume 7 of lower Court record, Page 447 etc.,) would indicate that the confirmation was prospective. We are distressed to note that the confirmation orders should be passed by a senior officer of the Government of India in such a careless manner, that too, in an important case of this nature. However, these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of POTA, Section 5(2) of the Telegraph Act or Rule 419A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contraband material seized as a result of illegal search and seizure could by itself be treated as evidence of possession of the contraband which is the gist of the offence under the said Act. In the instant case, the tape recorded conversation which has been duly proved and conforms to the requirements laid down by this Court in Ramsingh Vs. Ramsingh [(1985) Suppl. SCC 611] can be pressed into service against the concerned accused in the joint trial for the offences under the Indian Penal Code as well as POTA. Such evidence cannot be shut out by applying the embargo contained in Section 45 when on the date of interception, the procedure under Chapter V of POTA was not required to be complied with. On the relevant date POTA was not in the picture and the investigation did not specifically relate to the offences under POTA. The question of applying the proviso to Section 45 of POTA does not, therefore, arise as the proviso applies only in the event of the communications being legally required to be intercepted under the provisions of POTA. The proviso to Section 45 cannot be so read as to exclude such material in relation to POTA offences if it is otherwise admissible under the ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to personal liberty of an individual. However, we add a caveat here. The strict enforcement of the provision as to judicial remand and the invalidation of confession merely on the ground of its non-compliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still be required for the purpose of further investigation. Sending a person to judicial custody at that stage may retard the investigation. Sometimes, the further steps to be taken by the investigator with the help of the accused may brook no delay. An attempt shall however be made to harmonize this provision in Section 32(5) with the powers of investigation available to the police. At the same time, it needs to be emphasized that the obligation to send the confession maker to judicial custody cannot be lightly disregarded. The police custody cannot be given on mere asking by the police. It shall be remembered that sending a person who has made the confession to judicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im during the course of interrogation of the accused person: Provided that nothing in this sub-section, shall, entitle the legal practitioner to remain present throughout the period of interrogation. Sub-sections 2 4 as well as sub-Section (3) stem from the guarantees enshrined in Articles 21 and 22(1) of the Constitution. Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. The breadth and depth of the principle against self-incrimination imbedded in Article 20(3) was unravelled by a three Judge Bench speaking through Krishna Iyer, J. in Nandini Satpathy Vs. P.L. Dani [(1978) 2 SCC 424]. It was pointed out by the learned Judge that the area covered by Article 20(3) and Section 161(2) of Cr.P.C. is substantially the same. Section 161(2) of the Cr.P.C. is a parliamentary gloss on the constitutional clause it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a lawyer but all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied , without being exposed to the charge of securing involuntary self-incrimination. It was also clarified that the police need not wait more than for a reasonable while for an advocate's arrival. But they must invariably warn and record that fact about the right to silence. It was aptly and graphically said Article 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination . Based on the observations in Nadini Satpathy's case, it is possible to agree that the constitutional guarantee under Article 22(1) only implies that the suspect in the police custody shall not be denied the right to meet and consult his lawyer even at the stage of interrogation. In other words, if he wishes to have the presence of the lawyer, he shall not be denied that opportunity. Perhaps, Nandini Satpathy does not go so far as Miranda in establishing access to lawyer at interrogation stage. But, Section 52(2) of POTA makes up this deficiency. It goes a step further and casts an imperati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that suspects are under when dealing with police. The proposition laid down in the majority opinion in Miranda case was that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination . To ensure tht the exercise of the right will be scrupulously honoured, the Court laid down the following measures: He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a Court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-Sections (2) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout counsel till 17.5.2002 but the fact remains that till then, no proceedings except extending the remand and furnishing of documents took place in the Court. The next date which deserves mention is 5.6.2002. On that date, all the counsel appearing for the accused agreed that postmortem reports, MLCs, documents related to recovery of guns and explosive substances at the spot should be considered as undisputed evidence without formal proof which resulted in dropping of considerable number of witnesses for the prosecution. The learned senior counsel for the appellant by referring to the application filed by Ms. Seema Gulati on 1.7.2002 seeking her discharge from the case, highlights the fact that she took no instructions from Afzal or discussed the case with him and therefore no concession should have been made by her. The contention has no force. Assuming that the counsel's statement that she took no instructions from the accused is correct, even then there is nothing wrong in the conduct of the advocate in agreeing for admission of formal documents without formal proof or in agreeing for the framing of charges. The counsel had exercised her discretion reasonably. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay instances pertaining to cross- examination of one or two witnesses. The very decision relied upon by the learned counsel for the appellant, namely, Strickland Vs. Washington [466 US 668] makes it clear that judicial scrutiny of a counsel's performance must be careful, deferential and circumspect as the ground of ineffective assistance could be easily raised after an adverse verdict at the trial. It was observed therein: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defence after it has proved unsuccessful, to conclude that a particular act of omission of counsel was unreasonable. Cf. Engle Vs. Isaac [456 US 107, 133-134] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he kept on writing as they narrated their versions. He (PW60) denied the suggestion that Afzal was not produced before him and he did not express his willingness to make confession. The DCP(PW60) handed over a sealed envelope containing the confessional statements to PW80 the I.O. who produced the accused Afzal and two others before the Addl. Chief Metropolitan Magistrate (ACMM), Delhi on 22.12.2001 together with an application Ext. PW63/1. The ACMM was examined as PW63. The ACMM stated that he opened the sealed envelope containing Exts.PW60/9 PW60/6 which are the confessional statements of Afzal and Shaukat, and Ext.PW60/3 which is the statement of Gilani and perused them. The ACMM then recorded the statements of the accused persons. The two accused Afzal and Shaukat confirmed having made the confessional statement without any threat or pressure. The proceedings drawn by him is Ext.PW63/2. The accused signed the statements confirming the confession made to the DCP. The statement of Mohd. Afzal and his signature are marked as Exts.PW63/5 63/6. PW63 stated that he made enquiries from the accused persons and none of them made any complaint of use of force or threat at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re accommodated at the hideout in Gandhi Vihar. In order to complete the task assigned by Ghazibaba, he along with Mohammed went to the shops in old Delhi area and purchased 60 KGs of Ammonium Nitrate, 10 KGs of Aluminum powder, 5 KGs of Sulpher and other items in order to facilitate preparation of explosives by Mohammed. After a week or so, Mohammed gave another 5 lakhs of rupees to be handed over to Tariq. Tariq asked him to take along with him two other militants, Rana and Hamza. They were carrying two holdalls which contained rifles with loaded magazines, grenade launcher, pistols, hand grenades and shells, electric detonators and other explosives. They also stayed in Gandhi Nagar hideout initially. After reaching Delhi, he arranged for another accommodation at 281, Indira Vihar. Mohammed purchased mobile phones and SIM cards from the markets and received directions from Ghazibaba from a satellite phone. He used to meet Shaukat and Gilani and motivate them for Jihad. Shaukat provided his motorcycle for conducting 'recce'. Meetings were also arranged in the house of Shaukat for deciding future course of action. In those meetings, Gilani and Shaukat's wife Afsan also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afely acted upon. Certain common contentions applicable to the confessions of both Afzal and Shaukat were raised in an attempt to demonstrate that the confession would not have been true and voluntary. Firstly, it is pointed out that the alleged confession was substantially the same as the alleged disclosure statements (Exts. 64/1 64/2) which were recorded on the 16th December itself. Even their signatures were obtained on these disclosure statements. If so, when the accused were inclined to make a full-fledged confession on the 16th December and most of the investigation relating to hideouts and shops and the recovery of incriminating materials was over by the next day, there was no perceptible reason why the accused should not have been produced before a Judicial Magistrate for recording a confession under the provisions of Cr.P.C. The only reason, according to learned counsel for the appellants, is that they were really not prepared to make the confession in a Court and, therefore, the investigating authorities found the ingenuity of adding POTA offences at that stage so as to get the confession recorded by a Police officer according to the wishes of the investigators. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i in the confessional statement conflicts with the statement made by him to the media and therefore the confession is not true. We are of the view that the talk which Afzal had with TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a Police Officer within the meaning of Section 162 Cr.P.C. or not. We are not prepared to attach any weight or credibility to the statements made in the course of such interview pre-arranged by the police. The police officials in their over- zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. Incidentally, we may mention that PW60 the DCP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused. (iv) Procedural Safeguards Compliance: Now we look to the confession from other angles, especially from the point of view of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly breached. To get over this difficulty, the learned counsel for the State made two alternative submissions, both of which, in our view, cannot be sustained. Firstly, it was contended that on a proper construction of the entirety of sub-Section (5) of Section 32, the question of sending to judicial custody would arise only if there was any complaint of torture and the medical examination prima facie supporting such allegation. In other words, according to the learned counsel, the expression 'thereafter' shall be read only in conjunction with the latter part of sub-Section (5) beginning with 'and if there is any complaint' and not applicable to the earlier part. In our view, such a restrictive interpretation of sub-Section (5) is not at all warranted either on a plain or literal reading or by any other canon of construction including purposive construction. The other argument raised by the learned counsel is that the provision regarding judicial custody, cannot be read to be a mandatory requirement so as to apply to all situations. If the Magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services Authority, which is a statutory body. Not that the police should, in such an event, postpone investigation indefinitely till his request is processed, but what is expected of the police officer is to promptly take note of such request and initiate immediate steps to place it before the Magistrate or Legal Services Authority so that at least at some stage of interrogation, the person in custody would be able to establish contact with a legal practitioner. But, in the instant case, the idea of apprising the persons arrested of their rights under sub- Section (2) and entertaining a lawyer into the precincts of the police station did not at all figure in the mind of the investigating officer. The reason for this refrain or crucial omission could well be perceived by the argument of the learned senior counsel for the State that the compliance with the requirements of Section 52(2) of POTA did not arise for the simple reason that at the time of arrest, POTA was not applied. But this argument ignores the fact that as soon as POTA was added and the investigation commenced thereunder, the police officer was under a legal obligation to go through all the procedural safeguards to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right to consult a lawyer and to permit him to meet the lawyer. The avowed object of such prescription was to introduce an element of fair and humane approach to the prisoner in an otherwise stringent law with drastic consequences to the accused. These provisions are not to be treated as empty formalities. It cannot be said that the violation of these obligations under sub- Sections (2) (4) have no relation and impact on the confession. It is too much to expect that a person in custody in connection with POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise. The lawyer's presence and advice, apart from providing psychological support to the arrestee, would help him understand the implications of making a confessional statement before the Police Officer and also enable him to become aware of other rights such as the right to remain in judicial custody after being produced before the Magistrate. The very fact that he will not be under the fetters of police custody after he is produced before the CJM pursuant to Section 32(4) would make him feel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 5 to 10 minutes time to the accused for thinking/reflection in reply to the question by the counsel for Shaukat Hussain. It is true as contended by the learned counsel Mr. Gopal Subramanium that there is no hard and fast rule regarding grant of time for reflection and the rules and guidelines applicable to a confession under Section 164 Cr.P.C. do not govern but in the present case, the time of 5 or 10 minutes is, by all standards, utterly inadequate. Granting reasonable time for reflection before recording a confession is one way of ensuring that the person concerned gets the opportunity to deliberate and introspect once again when he is brought before the prescribed authority for recording the confession. That it is one of the relevant considerations in assessing the voluntariness of the confession is laid down in Sarwan Singh Vs. State of Punjab [1957 SCR 953]. All these lapses and violations of procedural safeguards guaranteed in the statute itself impel us to hold that it is not safe to act on the alleged confessional statement of Afzal and place reliance on this item of evidence on which the prosecution places heavy reliance. The learned senior counsel for the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was true and voluntary. We have to look to the substance of what the accused said while refuting the statement rather than building up a case on the basis of some inconsistencies in the defence plea. (v) Circumstances against Afzal We shall now consider the circumstantial evidence against Afzal independent of and irrespective of the confession. The first circumstance is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. PW76 (Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady Harding Medical College and he identified the five terrorists and gave their names. Accordingly, PW76 prepared an identification memo Ext.PW76/1 which was signed by Afzal. In the postmortem reports pertaining to each of the deceased terrorists, Afzal signed against the column 'identified by'. On this aspect, the evidence of PW76 remained un-shattered. In the course of his examination under Section 313, Afzal merely stated that he was forced to identify by the police. There was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo. It may be recalled that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects, it may be noted that the handset found in the truck in which Afzal was travelling and which he pointed out to the police was having IMEI No. 350102209452430. It was a mobile phone instrument of Nokia make and it was being used for the operation of phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was furnished by PW61 and PW62. Its IMEI number and the cell phone number with which it was being operated is established by the evidence of investigating officer coupled with the call records filed by the witnesses. It is also clear from the call record that it was the last instrument on which the said number 89429 had been operated as late as 13.12.2001. The fact that the instrument bearing number 52430 was being carried by Afzal in the truck would give rise to a reasonable inference that the cell-phone number with which the instrument was being operated was that of Afzal and the said phone number was under his use. The appellant, Afzal, apart from denying the recovery at Srinagar which denial cannot be said to be true, did not account for the custody of the phone. The said phone number cannot be related to Shaukat who was also travelling with Afzal because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay on 24.11.2001. It shows that these two phones were activated by Mohammed in the third week of November, 2001 when he was in Delhi. It is established from the call records that the second call from the Bombay number to Mohammed was received when the said mobile number (9810565284) was being used in the handset having IMEI No. 449269219639010(2). This is the same handset which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3). Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset which was being used by Afzal which reveals the nexus between both. Evidence of the computer experts PWs 72 73 together with their reports (Ext.PW73/1 73/2) would reveal that a file named Radhika.bmp was created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the name of Sanjay Sharma is found and it contains the address No.10, Christian Colony, where Mohammed was staying and the phone No. 9811489429 (belonging to Afzal). The other I.Cards recovered from the body of the deceased terrorist which were fake ones, were also prepared from the same laptop as established by the testimony of PW72 and PW59. Thus, together with the activation of phones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strument was never used by Afzal though it was purchased by him but it was being used by Mohammed and it ultimately reached Raja. The deposition of PW44 discloses that Afzal, who was identified by him in the Court, came to his shop on 7th or 8th December and purchased a mobile phone of J70 model of Sony make which he identified as Ext.P-37 seized under Ext.PW4/14 from the body of Mohammed. Its IMEI number was 35066834011747/2 and its cell-phone number was found to be 9810511085. This fact would only lead to the inference that contemporaneous to the crucial incident of 13th December, Afzal met Mohammed and supplied the handset of the mobile phone. That apart, we find the exchange of calls between them. From the call records in Parts VI IX, it is evident that Afzal was in touch with Mohammed over phone on seven occasions on 7th and 8th December and they were using the two phones with the Cell numbers referred to supra, though, two or three calls of them were of very short duration. It may also be noticed that a satellite phone contacted Afzal for a short-while on his number 9811489429 and the same satellite phone contacted Mohammed on his phone No. 9810693456 on 10th December fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e call records pertaining to the phones used by the accused. We can draw no adverse inference from the fact that the details of aforementioned number was not given. (vi) Hideouts and recoveries The other circumstances which prominently shed light on the involvement of the accused Afzal relate to the discovery of the abodes or hideouts of the deceased terrorists and the recovery of various incriminating articles therefrom as well as the identification of certain shops from where the appellant and one or the other deceased terrorist purchased various items used for preparation of explosives etc. These are spoken to by PW76 Inspector Gill, the landlords of the concerned premises and the shopkeepers. The informations furnished to the Investigating Officers leading to the discovery of facts and the conduct of the accused in pointing out the places where the terrorists stayed are admissible either under Section 27 or Section 8 of the Evidence Act and they supplement the evidence furnished by the I.Os., the landlords and the shopkeepers. Before proceeding further, we may advert to Section 8 of the Evidence Act. Section 8 insofar as it is relevant for our purpose makes the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case. In Om Prakash case (supra) [AIR 1972 SC 975], this Court held that even apart from the admissibility of the information under Section, the evidence of the Investigating Officer and the Panchas that the accused had taken them to PW11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 as 'conduct' of the accused . Coming to the details of evidence relating to hideouts and recoveries, it is to be noted that the accused Afzal is alleged to have made a disclosure statement to PW66 Inspector Mohan Chand Sharma on 16th December, 2001. It is marked as Ext.PW64/1. In the said disclosure statement, all the details of his involvement are given and it is almost similar to the confessional statement recorded by the DCP. The last paragraph of the statement reads thus: I can come along and point out the places or shops of Delhi wherefrom I along with my other associates, who had executed the conspiracy of terrorist attack on the Parliament, had purchased the chemicals and containers for preparing IED used in the attack, the mobile phones, the SIM Cards and the Uniforms. I can also point out the hideo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41, Tilak Bazar, Delhi' (Ext.P61). (c) A bucket (Ext.P62) of prepared explosive material. Sample of explosive material is Ext.P63. (d) two boxes containing Sulphur (Ext.P64 P65). (e) two cardboard cartons (Ext.P66 P67) containing 20 jars each of Ammonium Nitrate of 500 grams each (Ext.P68/1 to Ext.P68/38) (one jar was taken out from each carton as a sample). (f) Yamaha motorcycle bearing No.DL-1S-K-3122 (Ext.P76) found at the gate of the house and seized as per Ext.PW34/2. (g) Maps of Delhi city and Chanakyapuri area found in the room vide Ext.P34/3. (h) Police uniforms and police beret caps (P73 series). (i) Sujata Mixer Grinder with three jars (Ext.P72) seized as per Ext.PW34/4. PW34 confirmed this fact in his deposition. In addition, PW34 identified Afzal and Shaukat in the Court and stated the following facts: That Afzal had introduced himself under an assumed name of Maqsood and took the 2nd floor on rent in the first week of November, 2001. That Shaukat and three or four boys used to visit Afzal at that premises quite often and on the crucial day i.e. 13.12.2001, at 10 am, Afzal, Shaukat and four more persons left in an Ambassador car and Afzal had returned a shortwhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... floor of the house was taken on rent by Mohd. Afzal through PW31. He further stated that he imposed a condition that the tenant should reside with his family only. Having found some five or six other persons on 11.12.2001, he questioned Afzal on which he replied that they were his friends and they would leave soon and thereafter he would be bringing his family. On 12.12.2001, Afzal left the premises locking the door informing him that he would bring his family and children after Eed. Then he speaks to the details of search and seizure. He was a signatory to the seizure memos Exts.PW32/1 and PW32/2. The High Court held that the factum of Mohd. Afzal taking the premises on tenancy, the recovery of articles and detonators on 16.12.2001 and the fact that five or six persons were visiting the premises were found to be established by the testimony of PWs 31 32. Though PW32 is supposed to have identified the persons found with Afzal by the photographs of dead bodies of terrorists, we do not attach any weight to this part of the evidence because the police showed the photos and told him that they were the photographs of deceased terrorists. He also did not take into account this part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncriminatory articles found in the premises at Gandhi Vihar and Indira Vihar and at the scene of offence were purchased. Now we shall briefly refer to the evidence in regard to the purchase of chemicals used in explosives and the Mixture-Grinder utilized for preparing the explosive substance. PW-76 recorded in Ex. 40/1 dated 17.12.01 that Afzal furnished information that he had visited the shop of PW-40 along with deceased accomplice Hamza at Tilak Bazar and purchased 50kg of ammonium nitrate packed in = kg. boxes and that he would show the shop. Accordingly, Afzal led the Police to the shop of PW-40 and identified the proprietor which fact is relevant and admissible under Section 8 of the Evidence Act. PW-40 identified the accused Afzal, in the Court and stated that he came to his shop on 6.12.01 to purchase ammonium nitrate and that he placed an order for 50kg, paid an advance of ₹ 800/- and came the next day to take delivery of the same. On 7.12.01, he came with one more person, paid the balance and took the delivery of 50kg ammonium nitrate which was packed in = kg plastic bags. In view of the short time gap and the order for a large quantity, there is no reason to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who accompanied Afzal. PW41 also stated that Afzal was in the shop for nearly half an hour. The High Court, while observing that there was nothing to discredit the evidence of PW-41, it, however, ignored his testimony on a tenuous ground that the Police were already aware of the source of purchase of the dry fruits. Though there was no discovery within the meaning of Section 27, there is no reason why the evidence of PW-41 should be eschewed on that account. However, in regard to the identification of the pfotograph of deceased terrorist, his evidence does not inspire confidence, in view of the time lag of 8 months and the manner in which the answer was sought to be elicited from him. Then, we have the evidence of purchase of Sujata Mixer-Grinder (Ext.P72) which was found in the hideout at Gandhi Vihar. PW-76 deposed that Afzal took the investigating team to an electrical shop at Fatehpuri from where the Mixer-Grinder was purchased. The memo of pointing out is Ex. 76/2. The pointing out of the shop and the identification of the owner of the shop wherefrom the purchase was made are relevant facts to show the conduct of the accused referred to in Section 8 of the Evidence Act. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no question was asked about it. The next important circumstance against the accused Afzal is his association with Mohammed in purchasing the Ambassador car with registration No.DL-3CJ-1527 from PW20. The fact that the said car was used by the slain terrorists for entering the Parliament with arms and explosives, is not in dispute. PW20 after hearing the news that the car with the said number was used by the terrorists, he straight went to the Parliament Street Police Station along with the copies of documents. Having learned that his SHO was at the Parliament House, he went there and met the SHO at the gate and passed on information to him that the car was sold by him on 11.12.2001 to one Ashiq Hussain Khan. He identified the car, which was lying at gate No.11, then he handed over the documents pertaining to the car which were seized under the memo Ext.PW1/7. The documents were later filed in the Court. PW20 correctly identified the accused Afzal as the person who had come with Ashiq Hussain Khan for the purchase of car. The delivery receipt of the car issued by Ashiq Hussain Khan is Ext.PW1/6. The delivery receipt was signed by Afzal as a witness. The signature of Afzal on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subramanium. In fact this aspect was not seriously debated before us. The purchase of mobile cellular phone instruments by Afzal in the shops of PW44 and PW49, accompanied by Shaukat, is another important circumstance that can be put against him. As already noticed, these mobile instruments found their way to one or the other deceased terrorists and they were being interchangeably used by Afzal, Mohammed and Rana. The evidence of PW76 coupled with Ext.PW44/1 (pointing out memo) reveals that the accused Afzal took the police party to shop No.26, Gaffar Market and pointed it out as the shop from which he purchased the mobile phone handset of Sony make. The conduct of the accused in pointing out the shop and identifying the shop owner is relevant under Section 8 of the Evidence Act. PW44 - the shop owner identified Afzal and the mobile phone (Ext.P37) sold to him on 7/8.12.2001. The said instrument (Ext.P37) was recovered from the body of the deceased terrorist Mohammed vide Ext.PW4/14. He was confronted with some discrepancy as to the exact date of purchase, which does not appear to us to be very material. The fact that the transaction was unaccounted is also not a ground to esch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person or persons who operated it after 4.12.2001. The SIM card should have been necessarily sold to Afzal prior to 4.12.2001. It is contended that the test identification should have been conducted to assure credibility to the evidence of identification of Afzal by the shopkeepers. It is also contended that the photograph of the deceased Mohammed should have been mixed up with the other photographs in order to impart credibility to the version of witnesses who claimed to have seen him. We find no substance in these contentions. It is well settled that conducting the Test Identification Parade relates to the stage of investigation and the omission to conduct the same will not always affect the credibility of the witness who identifies the accused in the Court. In Malkhansingh Ors. Vs. State of M.P. [(2003) 5 SCC 746] B.P. Singh, J. speaking for a three Judge Bench observed thus: It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the incident on 13th December and such possession has not been accounted for. Now let us delve into further details, excluding from consideration the confessional statements, according to which the laptop was given to Afzal and Shaukat by Mohammed to be handed over to Ghazibaba. PW61 Dy. S.P., Srinagar speaks to the recovery of the laptop in a briefcase with attachments from the truck pursuant to the disclosure made by Afzal and Shaukat when the truck was intercepted at Srinagar. Ext.PW61/4 is the seizure memo. PW62 the Head Constable, corroborates what PW61 stated. PWs 64 65, who are the Sub-Inspectors of Special Cell, speak to the fact that the laptop along with the accessories was handed over to them as the property recovered by PW61. The laptop is Ext.P83. The laptop and other articles seized at Srinagar were deposited in the malkhana of the police station in sealed condition as per PW66. Then it was the job of PW80 ACP, who took over investigation on 19th December, to have the laptop examined by experts. The experts, namely, PW72 a computer engineer and PW73 Assistant Government Examiner of Questioned Documents, Bureau of Police Research, Hyderabad submitted their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of Afzal, the identity card of Cybertech Computer Education of Ashif Mustafa, two identity cards of Xansa Websity of Neeraj Bakshi and Anil Kumar which were similar to the identity cards found at the spot, two identity cards of Xansa Websity with the name Sunil Verma and Raju Lal which were similar to the cards found at the spot, designed sticker of Ministry of Home Affairs found and the relative file containing the same text as was found on the sticker. All these documents were found created and last updated between 1st December and 12th December, one of them was on 21st November, 2001. The documents referred to above establish that various identity cards which were similar to those recovered at the scene of offence were found in the laptop. The I. Cards that were not used were also detected. Documents found at the spot ('Q' series) were sent for forensic examination in order to report the results of comparison of these documents with those found inside the laptop. Besides, the sample originals of the MHA sticker and the sample identity cards of Xansa Websity ('S' series) were sent for comparison and report. The analysis was done by PW59 Senior Scientific Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accessed. The witness answered that the file cannot be written without being accessed by copying it on a different storage media. The learned counsel for the State is justified in his comment that the said answer was not a response pertaining to system files, which are self-generating and self-written. There was no suggestion to any witness that the date or time setting has been modified in the instant case so as to facilitate tampering. A mountain out of mole hill is sought to be made out by reason of the observation of PW73 that some of the files were last written after the date of seizure and the answer given by PW73 with reference to a general, hypothetical question. The testimony of DW8 computer engineer, who was examined on behalf of the accused Gilani, does not in any way substantiate the point of criticism about the possible tampering of laptop or nor does it make a dent on the findings of the experts examined by the prosecution. The testimony of this witness was not with reference to any of the files on which certain doubts were raised. His testimony is, by and large, on hypothetical aspects and does not relate to the authenticity of the contents of laptop as reported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is the next important task before the Court. In dealing with this aspect, the first question that arises for consideration is whether the appellant Afzal can be convicted under Section 120B of IPC read with Section 3(1) of POTA and be punished under Section 3(2) for the offence of criminal conspiracy to commit a 'terrorist act' or whether he is liable to be punished only under sub-Section(3) of Section 3 of POTA. Mr. Sushil Kumar, learned senior counsel appearing for the appellant Afzal has contended, quite contrary to the stand taken by the other two senior counsel, that no offence under POTA is made out in the instant case and therefore POTA offences were not included in the beginning. He submits that the actions of the deceased terrorists and the alleged conspirators can all be brought within the scope of Section 121 and 121A of IPC. As the unauthorized interception of communications and inadmissible joint disclosures were found to be insufficient to make out the offence under Section 121, the police thought of adding POTA after 19th December, so that the confession to the police officer could be made the basis of conviction. We find it difficult to appreciate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into play in the instant case because of the overt acts that have taken place in execution of the conspiratorial design. As far as the first contention of Mr. Gopal Subramanium is concerned, we have already rejected his argument that on the principle of 'theory of agency', the conspirators will be liable for the substantive offences committed pursuant to the conspiracy. When once the application of the theory of agency is negatived, there is no scope to hold that the appellant, in spite of not having done any act or thing by using the weapons and substances set out in sub- Section(1)(a), he, as a conspirator, can be brought within the sweep and ambit of sub-Sections (1) (2). The wording of clause (a) of Section 3(1) is clear that it applies to those who do any acts or things by using explosive substances etc., with the intention referred to in clause (a), but not to the conspirators who remained in the background. We must now deal with the alternative contention of Mr. Gopal Subramanium that Section 120B of IPC can be combined with Sections 3(1) and 3(2) of POTA. The contention of Mr. Shanti Bhushan and Mr. Ram Jethmalani is straight and simple. POTA is a spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the criminal acts in the nature of terrorist acts take place. According to the learned counsel, the conspiracy contemplated by Section 3(3) of POTA should be confined only to situations where no overt acts in the direction of commission of planned offence takes place. The final question is about the sentence whether the capital punishment awarded by the trial Court and the High Court is justified? The endeavor of the learned counsel for the State to invoke the punishment under Section 3(2) of POTA through the media of Section 120B is in our opinion a futile exercise. The argument of the learned counsel proceeds on the basis that the punishment provided in the abetment provisions of IPC, that is to say, Section 109, will be attracted. This argument is built up on the basis of the phraseology of the concluding clause of Section 120B which says be punished in the same manner as if he had abetted such offence . Let us take it that the word 'offence' in Section 120B includes the offence under special law, namely POTA. Then, if the offence under Section 3(1) of the POTA is abetted, what is the punishment that is attracted is the point to be considered. Undoubtedly, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any act or thing' by using bombs, dynamite or other explosive substances or firearms etc ), the definition of a terrorist act need not be restricted to a physical act of using explosives etc. The High Court observed that the actions of Afzal in procuring explosives and chemicals and participating in the preparation of explosives would be action amounting to doing of a thing using explosives , cannot be supported on any principle of interpretation. Moreover, it rests on a finding that the accused Afzal and Shaukat participated in the preparation of explosives for which there is no evidentiary support. Even their confession (which is now eschewed from consideration) does not say that. The net result of the above discussion is that the conspiracy to commit terrorist acts attracts punishment under sub-Section (3) of Section 3. The accused Afzal who is found to be a party to the conspiracy is therefore liable to be punished under that provision. Having regard to the nature, potential and magnitude of the conspiracy with all the attendant consequences and the disastrous events that followed, the maximum sentence of life imprisonment is the appropriate punishment to be given to Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on hand. Illustration (d) to Section 300 is instructive. It reads thus: (d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. The conspiracy to commit the offence of murder in the course of execution of conspiracy is well within the scope of conspiracy to which the accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section 302 IPC. The punishment applicable is the one prescribed under Section 109 IPC in view of the phraseology of Section 120B be punished in the same manner as if he had abetted such offence . Section 109 IPC lays down that if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, a person abetting the offence shall be punished with the punishment provided for the offence. Thus the conspirator, even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 IPC. Either death sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the overriding provision contained in Section 56 of POTA, the conspiracy to commit terrorist act is punishable only under Section 3(3) of POTA. Merely because the same criminal acts also fall within the definition of murder, the accused cannot be convicted of conspiracy to commit murder under Section 120B read with Section 302 IPC in addition to Section 3(3) of POTA. The accused cannot be punished for the offence of conspiracy to cause death when he is liable to be punished for the same act of causing death under the General Penal Law. It is only the punishment provided by the appropriate provision in the special law that can be imposed on the conspirator. That provision being Section 3(3) and it provides for the maximum sentence of life imprisonment, death sentence cannot be given. The learned counsel, apart from placing reliance on Section 56 of POTA, has also drawn our attention to Section 26 of General Clauses Act and Section 71 of IPC. His contention, though plausible it is, has no legal basis. We do not think that there is anything in Section 56 of POTA which supports his contention. That provision only ensures that the conspiracy to commit the terrorist act sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and punished for each of them severally. The analysis of these provisions show that the ingredients of these offences are substantially different and that an offence falling within the ambit of Section 3(1) may not be squarely covered by the offence under Section 300 IPC. The same set of facts may constitute different offences. The case of State of M.P. Vs. Veereshwar Rao Agnihotri [1957 SCR 868] is illustrative of this principle. In that case, it was held that the offence of criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act is not identical in essence, import and content with an offence under Section 409 IPC. The bar to the punishment of the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. Section 71 of IPC does not in any way advance the contention of the appellant's counsel. The relevant part of Section 71 IPC reads: Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the court which tries him c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld, because it tends to dissolve all the bonds of society, to destroy property, and to overturn Government ; and by force of arms, to restrain the King from reigning, according to law . No amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the king, in the sense of being armed opposition to the lawful exercise of his power . The learned Chief Justice then referred to the observations of Lord Holt, C. J. in a case reported in Holt's reports (1688-1700) at 681-682: Holt L. C.J. in Sir John Friend's case says, 'if persons do assemble themselves and act with force in opposition to some law which they think inconvenient, and hope thereby to get it repealed, this is a levying war and treason . I tell you the joint opinion of us all, that, if this multitude assembled with intent, by acts or force and violence, to compel the legislature to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local nature . Then in 1839, Tindal, C. J. while summing up the Jury in the trial of John Frost in the year 1839 [All ER Reprint 1835-1842 P.106 at P.117] stated that it was essential to the making out of the charge of high treason by levying war, there must be an insurrection, there must be force accompanying that insurrection; and it must be for the accomplishment of an object of a general nature . The following statement of law by Sir Michael Foster is instructive: There is a difference between those insurrections which have carried the appearance of an army formed under leaders, and provided with military weapons, and with drums, colours etc., and those other disorderly tumultous assemblies which have been drawn together and conducted to purposes manifestly unlawful, but without any of the ordinary shew and apparatus of war before mentioned. I do not think any great stress can be laid on that distinction. It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;levying war' in the Statute 25, Edward 3, clause 2 which offence is declared to be treason. After referring to the observations of Mansfield, CJ, Lord President Hope, Tindal, CJ and the commentaries of Sir Michael Foster, the High Court concluded thus : The natural and reasonable inference to be drawn from the conduct and acts of insurgence was that they intended to overcome and destroy the forces of the Crown at all events and regardless of any pretended grievance in connection with capitation tax. The learned Judges referred to the incidents that took place in the course of preparing for an encounter with the forces of the Crown and observed that they were consistent only with an intention on the part of the insurgents to wage war against the King Emperor. The raiding of headmen's houses for guns and ammunition, the looting of stores, the drilling of the rank and file, the supply of dahs and spears and uniforms to the combatants, the enforced tattooing of certain reluctant villagers all point to an intention to wage war and nothing else . It was then observed that : a deliberate and organized attack upon the Crown forces such as that which took place on 7th Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , IPC was mainly based on the fact that the accused were among those who took possession of the armory and also took part in the resistance which was put up to the troops. The conviction was set aside and the following pertinent observations were made by Shearer, J. The expression waging war means can, I think, only mean waging war in the manner usual in war . In other words, in order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury have, when called upon to surrender it, used the rifles ammunition so obtained against the King's troops. It must also be shown that the seizure of the armoury was part parcel of a planned operation that their intention in resisting the troops of the King was to overwhelm defeat these troops then to go on crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Govt. or until those in possession of it yielded to the demands of their leaders . Support was drawn from the Digest of Criminal Law by Sir James Stephens. In the Digest, one of the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show of criminal force, the Central Government or any State Government. The explanation to Section 121-A clarifies that it is not necessary that any act or illegal omission should take place pursuant to the conspiracy, in order to constitute the said offence. War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war imbedded in Section 121 is not to be understood in international law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that 'war' contemplated by Section 121 is not conventional warfare between two nations. Organizing or joining an insurrection against the Government of India is also a form of war. 'Insurrection' as defined in dictionaries and as commonly understood connotes a violent uprising by a gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section, 121A. It needs to be noticed that even in international law sphere, there is no standard definition of war. Prof. L.Oppenheim in his well-known treatise on International Law has given a definition marked by brevity and choice of words. The learned author said: war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases . Yoram Dinstein an expert in international law field analyzed the said definition in the following words: There are four major constituent elements in Oppenheim's view of War: (i) there has to be a contention between at least two States (ii) the use of the armed forces of those States is required, (iii) the purpose must be overpowering the enemy ( as well as the imposition of peace on the victor's terms); and it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me across? The most important is the intention or purpose behind the defiance or rising against the Government. As said by Foster, The true criterion is quo animo did the parties assemble ? In other words the intention and purpose of the war-like operations directed against the Governmental machinery is an important criterion. If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in contra-distinction to a private and a particular purpose, that is an important indicia of waging war. Of course, the purpose must be intended to be achieved by use of force and arms and by defiance of Government troops or armed personnel deployed to maintain public tranquility. Though the modus operandi of preparing for the offensive against the Government may be quite akin to the preparation in a regular war, it is often said that the number of force, the manner in which they are arrayed, armed or equipped is immaterial. Even a limited number of persons who carry powerful explosives and missiles without regard to their own safety can cause more devastating damage than a large group of persons armed with ordinary weapons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing/waging war. This was said by Lord President Hope in R Vs. Hardie in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan Vs. Emperor [AIR 1946 Nagpur 173 at page 186]. But, in our view, these are not irrelevant factors. They will certainly help the Court in forming an idea whether the intention and design to wage war against the established Government exists or the offence falls short of it. For instance, the fire power or the devastating potential of the arms and explosives that may be carried by a group of persons may be large or small, as in the present case, and the scale of violence that follows may at times become useful indicators of the nature and dimension of the action resorted to. These, coupled with the other factors, may give rise to an inference of waging war. The single most important factor which impels us to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battle-front selected was the Parliament House Complex. The target ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderestimate it as a mere desperate act of a small group of persons who were sure to meet death, is to ignore the obvious realities and to stultify the wider connotation of the expression of 'war' chosen by the drafters of IPC. The target, the obvious objective which has political and public dimensions and the modus operandi adopted by the hard-core 'Fidayeens' are all demonstrative of the intention of launching a war against the Government of India. We need not assess the chances of success of such an operation to judge the nature of criminality. We are not impressed by the argument that the five slain terrorists ought not to be 'exalted' to the status of warriors participating in a war. Nor do we endorse the argument of the learned senior counsel Mr. Sushil Kumar that in order to give rise to the offence of waging war, the avowed purpose and design of the offence should be to substitute another authority for the Government of India. According to learned counsel, the deprivation of sovereignty should be the pervading aim of the accused in order to bring the offence under Section 121 and that is lacking in the present case. We find no force in this contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urity personnel on duty as well as civilians if necessary would have been part of the design and planning of these hard-core terrorists and the criminal conspirators. It is not necessary that in order to constitute the offence of waging war, military or other forces should have been the direct target of attack. There is no such hard and fast rule and nothing was said to that effect in the long line of cases referred to supra. The act laying siege of Parliament House or such other act of grave consequences to the Government and the people is much more reflective of the intention to wage war rather than an attack launched against a battalion of armed men guarding the border or vital installations. Another point urged by Mr. Ram Jethmalani is that no violence or even military operations can become war unless it is formally declared to be such by the Central Government. So long as the Government does not formally declare an operation to be war, it is contended that a state of peace is supposed to exist however badly it may be disturbed. It is further contended that the participants in the war are to be treated as the prisoners of war and they are not amenable to the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a foreigner residing in the country. They are applicable of course to all such as thus owe allegiance to the Government, whether as subjects or foreigners, excepting as excepted by reservations or limitations which are parts of the law in question. We find it difficult to sustain the argument of learned Senior Counsel. The word 'whoever' is a word of broad import. Advisedly such language was used departing from the observations made in the context of Treason statute. We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government. We do not have the full text of the Law Commissioners' Report and we are not in a position to know whether the Law Commissioners or the drafters of Indian Penal Code wanted to exclude from the ambit of Section 121 the unauthorized foreigners sneaking into Indian territory to undertake war like operations against the Government. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 107 which is attracted in the case of Afzal. We quote the relevant portion of Section 107 IPC, which reads as follows: 107. A person abets the doing of a thing Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; As criminal acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy, shall be deemed to have abetted the offence. In fact, he took active part in a series of steps taken to pursue the objective of conspiracy. The offence of abetting the waging of war, having regard to the extraordinary facts and circumstances of this case, justifies the imposition of capital punishment and therefore the judgment of the High Court in regard to the conviction and sentence of Afzal under Section 121 IPC shall stand. The trial Court as well as the High Court also convicted the appellant Afzal under Section 3 of Explosive Substances Act (for short 'E.S. Act') and sentenced him to life imprisonment and to pay a fine of ₹ 25000/-. Under Section 4 of E.S. Act, he was sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section are not satisfied in order to find Afzal guilty under that Section. Thus, Afzal will have life sentence on three counts. However, as he is sentenced to death, the sentence of life imprisonment will naturally get merged into the death sentence. The appeal of Afzal is accordingly dismissed, subject to the setting aside of convictions under Section 3(2) of POTA and Section 3 of Explosive Substances Act. 19. CASE OF SHAUKAT (A2) As in the case of Mohd. Afzal, the evidence against Shaukat Hussain consists of confessional statement made to the Deputy Commissioner of Police and the circumstantial evidence. (i) Confession The confessional statement said to have been recorded by PW60 the DCP, Special Cell at 3.30 p.m. on 21.12.2001 is marked as PW60/6. As per Ext.PW60/11, the DCP administered the statutory warning and obtained an endorsement from Shaukat that he was not under any duress and he was ready to give the statement. We shall briefly refer to the contents of the confessional statement. Shaukat spoke about his graduation in 1992 in Delhi, his acquaintance with SAR Gilani of Baramulla who was doing his post-graduation in Arabic language, starting fruit business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another call from Afzal that the mission was on. Thereafter, he met Afzal at Azadpur Mandi and both of them went to Gilani's house to give him ₹ 2 lakhs. However Gilani wanted them to hand it over at his house in Kashmir. Finally, he stated that he along with Afzal left for Srinagar in his truck on the same day and they were apprehended at Srinagar on 15th December, 2001 and the Laptop and cash recovered by the police and later they were brought to Delhi. Shaukat was produced before the ACMM by PW80 the next day along with the other accused and the ACMM recorded his statement. The ACMM had gone through the same procedure as in he case of Afzal and recorded the statement that there was no complaint against the police personnel and that Shaukat confirmed making the confessional statement before DCP any police pressure. The first date on which Shaukat retracted the confession was on 19.1.2002 when he filed an application before the Designated Court expressing certain doubts about the 'verbal confession made before Special Cell'. He expressed that the Delhi Police would have twisted the confession 'in a different way and different formation'. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to his version in the confession statement, his wife Afsan Guru (A4) was also having knowledge of their plans. Is it really believable that he would go to the extent of implicating his pregnant wife in the crime. It casts a serious doubt whether some embellishments were made in the confessional statement. We are not inclined to express a final opinion on this point as we are in any way excluding the confession from consideration on the ground of violation of procedural safeguards and the utterly inadequate time given by PW 60 for reflection. The other point which was harped upon by the learned counsel Mr. Shanti Bhushan was that Shaukat and Afzal were not produced before the DCP in the forenoon on 21st December, 2001 as directed by him. In the first instance, Gilani was produced and when he was not prepared to give the statement, the learned counsel suggests that Shaukat and Afzal were taken back to police cell and subjected to threats and it was only after ensuring that they would make the confession, they were produced before the DCP late in the evening. It is contended that the reason given for not producing them at the appointed time is not convincing. Though the possibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appening at the hideouts. 7. Shaukat was present in Delhi till the forenoon of 13.12.2001 when Parliament was under attack and he absconded along with Afzal when both of them were arrested at Srinagar. His conduct, post attack, is incriminating. 8. The laptop recovered from the truck belonging to wife of Shaukat was the one which was used by the terrorists to create the identity cards of Xansa Websity and the fake Home Ministry stickers. The High Court then commented at paragraph 402 Shaukat's role in the conspiracy was clearly that of an active participant. Evidence on record does not show that he has been brought within the sweep of the dragnet of conspiracy by merely being seen associated with Afzal. There is more than mere knowledge, acquiescence, carelessness, indifference or lack of concern. There is clear and cogent evidence of informed and interested co-operation, simulation and instigation against accused Shaukat. Evidence qua Shaukat clearly establishes the steps from knowledge to intent and finally agreement . Taking into account the confessional statement which stands corroborated by various circumstances proved, the High Court reached the inevitable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntified the accused Afzal and Shaukat, both before the police as well as in the Court. The fact that Shaukat and Afzal were coming to see Ruhail Ali Shah, who was no other than Mohammed, was also spoken to by him. The photograph Ext.PW29/5 of Ruhail Ali Shah, whose real name was Mohammed, was also identified by him. The contention of the learned counsel appearing for Shaukat that test identification parade ought to have been held, cannot be accepted having regard to the legal position clarified by us in the earlier part of the judgment. The fact that PW37 did not produce the register expected to be maintained by him, does not also discredit his testimony which has been believed by both the Courts. (iii) Circumstance Nos.2 5 (phone contacts) The evidence of the investigating officer PW 66 and PW67 reveals that two mobile phone instruments were recovered on 15th December, 2001 from the house of Shaukat. One of them, namely, Ext.PW36/1 with the phone No.9811573506 was recovered from the hand of Afsan Guru. This was after the telephonic conversation over this number at 20.09 hours was intercepted on the night of 14th December. It transpired that the said conversation was between h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere having one mobile phone each, but only three were shown to have been recovered and the other two must have been foisted on the accused giving the colour of recovery from them. We find no justification for this comment. Another point urged is that the recovery of phones shown to be after 10.45 a.m. on 15th December cannot be true as Afsan Guru was arrested on the night of 14th December, as held by the trial Court on the basis of testimony of Srinagar police witnesses that the information about the truck given by Afsan Guru was received early in the morning of 15th December. It is therefore pointed out that the prosecution did not come forward with the correct version of the search and recovery of the articles in the house of Shaukat. In this context, it must be noted that Afsan Guru (A4) was not consistent in her stand about the time of arrest. Whereas in her statement under Section 313, she stated that she was arrested on 14th December between 6.00 7.00 p.m. In the course of cross examination of PW67, it was suggested that she was arrested at 6 or 6.30 a.m. on 15th December, 2001. Her version in the statement under Section 313 cannot be correct for the reason that the interce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fzal were recovered from the premises in the presence of PW32. Six detonators in a plastic container were also found. Though PW32 claimed to have identified the photographs of the deceased terrorists as those who were found in the premises, this part of the evidence is not entitled to any weight as rightly contended by Mr. Shanti Bhushan. PW32 stated that the police showed him some photographs and told him that those were the photos of the slain terrorists who attacked the Parliament. Thus, the so called identification by PW32 on the revelation by the police cannot be relied upon. In fact, the High Court did not believe this witness on the point of identification of photos (vide paragraph 326 of judgment). However it is quite clear from the chemicals and explosive materials found there that this hideout was taken by Afzal to accommodate the deceased terrorists who stayed there to do preparatory acts. The fact that Shaukat's motorcycle was also found there, would give rise to a reasonable inference that Shaukat kept it for use by Afzal and his companions. It also reinforces the conclusion that Shaukat was aware of the Indira Vihar abode of these persons. (v) Circumstance No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be denied that Srinagar police acted on the information received from Delhi about the truck number which was conveyed by Afsan (A4). PWs 64 and 65, the police officers of Delhi also testified that Afzal and Shaukat were handed over to them along with the seized articles on 15th December at 1 P.M. as they reached Srinagar by a special aircraft. The stand taken by Shaukat was that he was arrested in Delhi from his house on 14th December which is obviously false in view of the plethora of evidence referred to supra. As regards the truck, he stated in the course of Section 313 examination that the truck loaded with bananas was sent to Srinagar on the night of 13th December. The falsity of Shaukat's version of arrest in Delhi on 14th is established by the fact that on the night of 14th, Shaukat did call up from Srinagar and spoke to his wife Afsan, the receiving number being 73506 which was later recovered from the house of Shaukat. The Conversation was taped and PW48 the Senior Scientific Officer in CFSL, Delhi compared the voice samples of Shaukat and Afsan Guru sent to him with the voice on the cassette which recorded intercepted conversation. He made auditory and spectrogr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first floor of Shaukat by identifying their photographs. In fact, in some of the photographs, the face is found so much disfigured on account of injuries that it would be difficult to make out the identity on seeing such photographs. Yet, he claimed to have identified the photographs of all the five deceased terrorists as those visiting Shaukat's residence. He stated that he could not identify Gilani as the person who was visiting Shaukat's residence at that crucial time but after a leading question was put, he identified Gilani in the Court. The High Court did not attach any weight to his evidence regarding identification of the deceased terrorists. Though the trial Court referred to his evidence inextenso, no view was expressed by the trial Court on the point of reliability of his evidence regarding identification. Moreover, we find considerable force in the argument of the learned counsel for the appellant that it is hard to believe that the terrorists would take the risk of going to Shaukat's place for the so called meetings thereby exposing to the risk of being suspected, especially, at a place where two police sub-inspectors were staying as stated by PW 45. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held and that there was discrepancy in regard to the date of seizure memo of the bill book. These are not substantial grounds to discredit the testimony of an independent witness PW29. The High Court was inclined to place reliance on this witness in regard to the identification of the deceased terrorist having regard to the fact that they would have been in the shop for taking trial etc., and that the witness would have had enough opportunity to observe the buyer's party for quite some time. Another circumstance that ought to be taken into account against Shaukat is the telephonic conversation between him and his wife Afsan on the night of 14th December. We have already held that the intercepted conversation recorded on the tape is reliable and the High Court should not have discounted it. The conversation shows that Shaukat was with another person at Srinagar, by name Chotu (the alias name of Afzal, according to the prosecution) and that panic and anxiety were writ large on the face of it. In the light of the above discussion, can it be said that the circumstances established by satisfactory evidence are so clinching and unerring so as to lead to a conclusion, unaffected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Afzal even to the extent of facilitating him to flee away from Delhi to a safer place soon after the incident is evident from his various acts and conduct, they are not sufficient to establish his complicity in the conspiracy as such. Certain false answers given by him in the course of examination under Section 313 are not adequate enough to make up the deficiency in the evidence relating to conspiracy as far as Shaukat is concerned. At the same time, the reasonable and irresistible inference that has to be drawn from the circumstances established is that the appellant Shaukat had the knowledge of conspiracy and the plans to attack the Parliament House. His close association with Afzal during the crucial period, his visits to the hideouts to meet Afzal, which implies awareness of the activities of Afzal, the last minute contacts between him and Afzal and their immediate departure to Srinagar in Shaukat's truck with the incriminating laptop and phone held by Afzal would certainly give rise to a high degree of probability of knowledge on the part of Shaukat that his cousin had conspired with others to attack the Parliament and to indulge in the terrorist acts. He was aware of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one year. The convictions and sentences under all other provisions of law are set aside. His appeal is allowed to this extent. 20. CASE OF S.A.R. GILANI The High Court set aside the conviction of S.A.R. Gilani and acquitted him of the various charges. There is no evidence to the effect that Gilani was maintaining personal or telephonic contacts with any of the deceased terrorists. There is no evidence of any participative acts in connection with or in pursuance of the conspiracy. He was not connected with the procurement of hideouts, chemicals and other incriminating articles used by the terrorists. Speaking from the point of view of probabilities and natural course of conduct there is no apparent reason why Gilani would have been asked to join conspiracy. It is not the case of the prosecution that he tendered any advice or gave important tips/information relevant to the proposed attack on Parliament. None of the circumstances would lead to an inference beyond reasonable doubt of Gilani's involvement in the conspiracy. There is only the evidence of PW 45, the landlord of Shaukat, that he had seen the deceased terrorists and Gilani visiting the house of Shaukat two or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with them through his mobile phone No. 9810081228 frequently between the first week of November and the date of the crucial incident is sought to be projected by the prosecution prominently as an incriminating circumstance against Gilani. Incidentally, it is also pointed out that there were contemporaneous calls between Gilani, Afzal and Shaukat and Afzal and Mohammed. It is particularly pointed out that after Shaukat acquired mobile phone 9810446375, the first call was to Gilani on 2.11.2001 for 22 seconds. Gilani in turn called him up and spoke for 13 seconds. Thereafter, there was exchange of calls between Shaukat and Gilani on seven occasions in the month of November. In the month of November, there was a call from Shaukat through his phone No. 9811573506 to Gilani on 7th December, 2001 and on the 9th December, 2001, Gilani spoke to Shaukat for 38 seconds. There was a call on the midnight of 13th December for 146 seconds from Gilani's number to Shaukat. There is a controversy about this call which we shall refer to in the next para. Then, soon after the attack on Parliament on 13th December, 2001, there was a call from Shaukat to Gilani and thereafter from Gilani to Shaukat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anxiety to wriggle out of the situation. That does not make an otherwise innocuous factor on incriminating circumstance. There was a debate on the question whether the call from Gilani's number to Shaukat's number at 00.41 hours on 12th December i.e. just on the eve of the Parliament attack was made by Gilani. The call lasted for 146 seconds. The defence of Gilani was that Gilani's brother called Shaukat to wish him on that night which happened to be shab-e-qadr festival night and that it was not unusual for the friends to exchange the greetings on that night. It is pointed out by the learned counsel for the State that the testimony of DW5 Gilani's wife, exposes the falsity of this defence. She stated that no one in the family used cell phone that night. She stated that namaz was performed on the night of 12th December, by all the family members together from 9.30 p.m. onwards. It was closed at 7.00 a.m. on 13th December, 2001 and then they slept. She further stated that during namaz, her husband did not move out of the room nor talked to anybody. She also stated that the cell phone was switched off and kept aside. She denied that any call was made by her husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 27 rests on the principle of confirmation by subsequent events and that the facts discovered need not necessarily relate to material objects. We have already discussed the legal position in regard to the scope and parameters of Section 27 and we have not accepted the contention of the learned counsel for the State. We are of the view that none of the statements can be put against Gilani. It may be noted that Gilani was not taken to any places such as the hideouts where the incriminating articles were found. He only pointed out the house of Shaukat who was in the same locality on the 15th December, 2001 which is an innocuous circumstance. Though there is some dispute on this aspect, we are inclined to believe the evidence of the investigating officers because Afsan Guru, in her statement under Section 313, stated that Gilani was with the police when they came to her house. One more important aspect that deserves mention is that there is nothing to show that the information furnished by Gilani led to the discovery of facts such as identification of the deceased terrorists, recovery of chemicals, police uniforms etc., at the hideouts. That was all done on the basis of informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars almost towards the end of talk. The defence version of translation is as follows: Caller: (Brother of Gilani) What has happened? Receiver: (Gilani) What, in Delhi? Caller: What has happened in Delhi? Receiver: Ha! Ha! Ha! (laughing) Caller: Relax now. Receiver: Ha! Ha! Ha!, O.K. Where are you in Srinagar? The controversy is centered on the point, whether the words Eh che zururi were used by Gilani or not. According to the prosecution these words indicate the state of mind of Gilani in relation to the atrocious incident in Delhi the previous day. The High Court commented thus in paragraph 346: During the hearing of the appeal, we had called for the tape from Malkhana and in the presence of the parties played the same. Indeed the voice was so inaudible that we could not make head or tail of the conversation. We tried our best to pick up the phonetical sounds where there was a dispute as to what words were used, but were unable to do so. Testimony of PW 48 reveals that he could not analyse the talk as it was highly inaudible. PW 48 is a phonetic expert. If he could not comprehend the conversation in a clearly audible tone, the probability of ordinary l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of S.A.R. Gilani of all charges. 21. CASE OF AFSAN GURU @ NAVJOT SANDHU The trial Court convicted her of the offence under Section 123 IPC imputing her the knowledge of conspiracy and concealing the evidence of design to wage war by reason of her illegal omission to inform the police. The High Court acquitted her of the charge. We are of the view that the High Court is fully justified in doing so. The prosecution case against this accused, who is the wife of Shaukat Hussain, is weak, especially, in the light of the exclusion of confessional statements of co-accused Shaukat and Afzal. The High Court held the confessions inadmissible against the co-accused and we have expressed the same view. Incidentally, we may mention that even the confessions of co-accused do not attribute to her in clear terms the role of conspirator, though on the basis of confessions it could perhaps be held that she was in the know of things well before the planned attack on the Parliament. In fact, there was no earthly reason for inviting her to join the conspiracy. She was pregnant by then. Then it is to be noted that no recoveries were effected at her instance coming within the purview of Section 27 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Receiver: I don't know they are with the lady of ground floor. Some vehicle is still parked outside. Caller: O.K. Receiver: I don't know. I did not speak anything. Caller: O.K. Alright. Receiver: Tell more, don't speak anything now and tell me. I am much afraid. Caller: No, No nothing dear, O.K. Receiver: Are you fine? Caller: Yes, Yes. Receiver: Reached safely? Caller: Yes, Yes. Receiver: And Chotu? Caller: Yes, Yes. Receiver: Do you know? Caller: Yes, Yes alright you may make a call. Receiver: When? Caller: In the night right now. I am calling from outside Receiver: Alright I will call up tomorrow (while weeping) Caller: O.K. As rightly observed by the High Court it shows that Shaukat and Afsan were talking between the lines. Afsan was scared. An inference can be drawn that she was concerned about the safety of Shaukat and that she was aware that Shaukat and Afzal did something that attracted police surveillance. But from this circumstance alone, no inference can be drawn with a reasonable degree of certainty that she was having knowledge of the plan to attack the Parliament before it happened. The scanty evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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