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TMI Blog2005 (8) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Gilani. Plethora of documents (about 330 in number) were exhibited. The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani were convicted for the offences under Sections 121, 121A, 122, Section 120B r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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. The said five persons (hereinafter referred to as the 'slain' or 'deceased terrorists') were heavily armed with automatic assault rifles, pistols, hand and rifle grenades, electronic detonators, spare ammunition, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. Then, he sent the dead bodies to the mortuary in the hospital for postmortem. (vii) After the Bomb Disposal Squad had rendered the area safe and his preliminary observations were over, PW1 recorded the statement of S.I. Sham Singh (PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 records indicated that the number 9811489429 which was found on the I.D. cards, (subsequently discovered to be that of the accused Afzal) appeared to be integrally connected with the deceased terrorists and this number had been in frequent contact with the ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Srinagar. Both the intercepted conversations were analysed and considered by PW 66 (Inspector M.C. Sharma) at about 10 P.M. on 14th December. PW 66 resultantly drew an inference that the persons who were conversing on the two mobile phones were having knowledge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmally 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 Gate No.1), Raja, Rana, Hamza (dead bodies found at Gate No.9) and Haider (dead body found at Gate No.5). From December 17th to December 19th, Afzal led the police to various shops from where the chemicals and other materials required for preparing explosives were purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement 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 Mohd.Afzal was allowed for the purpose of conducting certain investigations in the light of the supplementary disclosure statement made by him to PW80. (viii) On 4.5.2002 sanction was accorded by the Lt. Governor of Delhi in view of the requirements of Section 50 POTA and Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir 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 Jethmalani, that the sanctions were not given, nor signed by the competent authority. It is submitted that in relation to the Union Territory, only Central Government is competent. Delhi being a Union Territory known as the National Capital Territory of Delhi with effect from the date of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose 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 interpretation of the expression 'appropriate Government' occurring in Section 10 of the Industrial Disputes Act, 1947. The industrial dispute pertained to the workmen employed at Mormogao Port which is located in the then union territory of Goa, Daman and Diu. It was contended by the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 notification will continue to operate unless the Parliament by law provides otherwise. The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegation contained in the Presidential Notification issued under Article 239. We therefore hold that the sanctions under Section 50 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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 be said that the addition of Section 124 which has really no application to the present case by itself vitiates the sanction order. From the insertion of one inapplicable provision, a reasonable inference cannot be drawn that there was no application of mind by the competent authority. A meticulous and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commit the offences mentioned therein. The elaborate narration of facts culled out from the record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic repetition from what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 was addressed in relation to the sanction given under the Explosive Substances Act. Suffice it to say that we find no legal infirmity in the said order passed by the Commissioner of Police which is Ext. PW11/3. Addition of POTO/POTA offences (6) (i) The next question is whether the addition of offences under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorted 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 1, 9 & 14 connected with the registration of FIR and they were not even cross-examined. The original FIR register was produced by PW14. The trial Court perused the same while recording the depositions and returned it. In fact, this contention about the manipulation of FIR was not even raised in the trial Court. The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 in judging the effect of wrong or deficient charges. Section 215 of Cr.P.C. makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lor'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 fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of decisions. The observation must be viewed in the context of the fact that the Court was concentrating on the confession of the co-accused rather than the evidentiary value of the retracted confession against the maker. Dealing with retracted confession, a four-Judge Bench of this Court speaking through Subba Rao, J, in Pyare Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. In order to be assured of the truth of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence." (emphasis supplied) What is the legal position relating to CONFESSIONS UNDER THE POTA is the next important aspect. Following the path shown by its predecessor, namely TADA Act, POTA marks a notable depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 evidence. Wadhwa, J, held that the confession of an accused serves as a substantive evidence against himself as well as against the co-accused, abettor or conspirator. S.S.M. Quadri, J, broadly agreed with the view taken by Wadhwa, J. The following observations made by the learned Judge reflect his view-point: "On the language of sub-section (1) of Section 15, a confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 voluntarily and truthfully then the said confession is sufficient to base conviction of the maker of the confession." This proposition is unexceptionable. The next proposition, however, presents some difficulty. The learned Judges added: "Whether such confession requires corroboration or not, is a matter for the Court considering such confession on facts of each case." T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 corroboration when such confession is to be used against a co-accused. (iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 contention advanced by the learned senior counsel is not without force. However, we need not dilate further on this aspect as the terminology in POTA is different and the view which we hold is that Section 32 of POTA does not enable the Court to take into account the confession of the co-accused. We shall now advert to this aspect, on a comparative reference of the provisions of TAD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, 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 the confession of the co-accused within the net of admissibility on par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words "co-accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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 constitutional validity of the provisions of TADA Act came up for consideration before the Constitution Bench. Section 15(1) of TADA Act was the main target of attack. The majority of Judges, with Ratnavel Pandian, J, leading them, upheld the provisions of the Act including Section 15(1). There was a weighty dissent by two learned Judges (K. Ramaswamy, J. and R.M. Sahai, J.) as regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 day to seek reconsideration of the view taken by the majority of the Judges in the Constitution Bench. But as we see Section 32, a formidable doubt lingers in our minds despite the pronouncement in Kartar Singh's case (supra). That pertains to the rationale and reason behind the drastic provision, making the confession to police officer admissible in evidence in a trial for POTA offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement 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 of this Court upheld the constitutional validity of Section 32 following the pronouncement in Kartar Singh's case. The learned Judges particularly noted the 'additional safeguards' envisaged by sub-Sections (4) and (5) of Section 32. The court referred to the contention that there was really no need to empower the police officer to record the confession since the accused has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission 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 who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence' 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 against a co-accused either under Section 32(1) of POTA or under Section 30 of the Evidence Act, would be relevant evidence against the co- accused involved in the conspiracy by reason of Section 10 of the Evidence Act. The section reads thus: "10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past. In their Lordships' judgment, the words 'common intention' signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, because by that time the conspiracy would have ended. If so, the statement forming part of the confessional statement made to the police officer under Section 32(1) of POTA cannot be pressed into service by the prosecution against the other co-accused. Thus, the endeavour to bring the confessional statement of co-accused into the gamut of evidence through the route of Section 10 is frustrated by a series of decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 of the Evidence Act and observed thus: "The High Court held as there was reasonable ground to believe that Ammini and other accused had conspired together and, therefore, the confession made by A-1 could be used against other accused also." There was no reference to the earlier cases which were binding on the Court. The view of the High Court was merely endorsed. The learned senior counsel Mr. Gopal Subramanium then submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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. However, there are two decisions of this Court rendered by two Judge Benches, which have taken the view that the facts stated in the confessional statement of one of the accused can be used against the other accused. The first one is Bhagwandas Keshwani & anr. vs. State of Rajasthan [1974 (4) SCC 611] decided by a two-Judge Bench (M.H. Beg and Y.V. Chandrachud, JJ), in which Beg, J. observed thus: "It seems to us that the extreme argument t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 of (1844) 6 QB 126 : 115 ER 49 (E) illustrates the two aspects of it, because that authority shows both what is admissible and what is inadmissible. What, in that case, was held to be admissible against the conspirator was the evidence of entries made by his fellow conspirator contained in various documents actually used for carrying out the fraud. But a document not created in the course of carrying out the transaction, but made by one of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Indian Penal Code except in respect of the offence mentioned in Section 121-A. However, abetment by conspiracy was and still remains to be an ingredient of abetment under clause secondly of Section 107 of IPC. The punishment therefor is provided under various sections viz. Section 108 to 117. Whereas under Section 120A, the essence of the offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient." In State of H.P. Vs. Krishan Lal Pradhan [1987 (2) SCC page 17], it was reiterated that every one of the conspirators need not take active part in the commission of each and every one of the conspiratorial acts. In the case of St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert Pankaj Kumar [1997 (7) SCC 156], observed that this Court should not allow the suspicion to take the place of legal proof. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC 665], " in most cases it will be difficult to get direct evidence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Van Riper Vs. United States [13 F 2d 961 at page 967] was quoted. "Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all." Then, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Aggarwal vs. Union of India [1993 (3) SCC 609], while discussing the question whether the conspiracy is a continuing offence, the following pertinent observations were made by K. Ramaswamy, J, speaking for the Bench at para 11: "Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, indepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means the design being unlawful? .... "If you are satisfied that there was concert between them, I am bound to say that being convinced of the conspiracy, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission 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 under Section 120A. However, as rightly pointed out by the learned counsel for the State Mr. Gopal Subramanium, the provision dealt with by the House of Lords, namely, Section 1(1) of the Criminal Law Act, 1977 is different from the wording of Section 120A. It reads as follows: "Subject to the following provisions of this Part of this act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 sense, Section 27 will apply whenever there is discovery (not in the narrower sense of recovery of a material object) as long as the discovery amounts to be confirmatory in character guaranteeing the truth of the information given the only limitation being that the police officer should not have had access to those facts earlier. The application of the Section is not contingent on the recovery of a physical object. Section 27 embodies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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] were specifically approved by the Privy Council. It is pointed out that Section 27 is virtually borrowed from Taylor's treatise on the Law of Evidence as pointed out by the full Bench of the Allahabad High Court in the vintage decision in Queen Empress Vs. Babu Lal [1884, Indian Decisions, 6 Allahabad 510]. The passage in Taylor's Evidence (which is found in paragraph 902 of Volume 1 of 1931 Edition) is as follows: "902. (i). When, in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral. 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 confession made by any person while he or she is in police custody cannot be proved against that person accused of an offence. Of course, a confession made in the immediate presence of a Magistrate can be proved against him. So also Section 162 Cr.P.C. bars the reception of any statements made to a police officer in the course of an investigation as evidence against the accused person at any enquiry or trial except to the extent that such statements can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rey 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 discovered that can be proved and nothing more. It is explicitly clarified in the Section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered' 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 ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (emphasis supplied). The approach of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 wider meaning in this case which is the meaning now sought to be given by Mr. Gopal Subramnium. In Attappa Goundan's case, the connotation of the word 'fact' i.e. whether it can be restricted to a material object was not specifically dealt with. The reason for referring to these two decisions of Madras High Court rendered before Kotayya's case becomes evident when we advert to the decision of this Court in Omprakash [(1972) 1 SCC 249] a little la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion '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 highlighted in several decisions of this Court. The crux of the ratio in Kotayya's case was explained by this Court in State of Maharashtra vs. Damu. Thomas J. observed that "the decision of the Privy Council in Pulukuri Kotayya vs. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur 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 and pointed him out" The learned Judge then referred to the decision of Madras High Court in Emperor vs. Ramanuja Ayyangar [AIR 1935 Mad 528] which held that the information relating to the purchase from the pointed shop and its carriage by a witness pointed out was admissible. Reference was then made to the law laid down in Athappa Goundan's case [AIR 1937 Mad 618] and observed that "this view was overruled by the Privy Council in Pulukuri Kotayya's case" (supra). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity 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 against the contention advanced by the prosecution, the learned senior counsel Mr. Gopal Subramanium has questioned the correctness and the binding authority of this judgment. Firstly, according to him, the judgment was based on certain wrong assumptions and, secondly, it is pointed out that in the light of the later decisions, the enunciation of law in Om Prakash case does not hold good. In regard to the first point of criticism, the learned counsel Mr. Gopal Subramanium contended as follows: "OM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh)" The first sentence read with the second sentence in the above passage would support the contention of Mr. Ram Jethmalani that the word 'fact' embraces within its fold both the physical object as well as the mental element in relation thereto. This ruling in Inayatullah does not support the argument of the State's counsel that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained. 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 legal position spelt out in Om Prakash case. The High Court rightly distinguished Damu's case because there was discovery of a related physical object at least in part. The decision in Pandurang Kalu Patil Vs. State of Maharashtra [(2002) 2 SCC 490] was also cited by the counsel for the State. We do not think that the prosecution can derive assistance from what was laid down in that judgment. The legal position enunciated in P. Kotayya's case was only reiterated in a little different language. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosures 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 almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in the case of Lachhman Singh vs. The State [1952 SCR 839] this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing the joint disclosures. 15. CALL RECORDS PROOF AND AUTHENTICITY It is contended by Mr. Shanti Bhushan, appearing for the accused Shaukat that the call records relating to the cellular phone No. 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 entries in Exts.36/2 and 36/3 and that there was some discrepancy relating to the Cell I.D. and IMEI number of the handset at certain places was pointed out. The factum of presence of duplicate entries was elicited by the counsel appearing for Afsan Guru from PW36 when PW36 was in the witness box. The evidence of DW10 a technical expert, was only to the effect that it was possible to clone a SIM by means of a SIM Programmer which to his knowledge, was not available in Delhi or elsewhere. His evidence was only of a general nature envisagin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was expressed even in the face of a more stringent provision in Section 69 of the Police and Criminal Act, 1984 in U.K. casting a positive obligation on the part of the prosecution to lead evidence in respect of proof of the computer record. We agree with the submission of Mr. Gopal Subramanium that the burden of prosecution under the Indian Law cannot be said to be higher than what was laid down in R Vs. Shepard (supra). Although necessary suggestions were not put forward to the witnesses so as to discredit the correctness/genuineness of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 the evidence collected against the accused through the interception of wire, electronic or oral communication. Chapter V governing the procedure for interception and admission of the intercepted communications pre-supposes that there is an investigation of a terrorists act under the POTA has been set in motion. It is not in dispute that the procedural requirements of Chapter V have not been complied with when such interceptions took place on 14th December, 2001. But, as already noticed, on the crucial date on which interception took place (i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 integra in view of the decision of this Court in R.M. Malkani Vs. State of Maharashtra [(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 general law of evidence. 17. Procedural safeguards in POTA and their impact on confessions As already noticed, POTA has absorbed into it the guidelines spelt out in Kartar Singh's case and D.K.Basus's case in order to impart an element of fairness and reasonableness into the stringent provisions of POTA in tune with the philosophy of Article 21 and allied constitutional provisions. These salutary safeguards are contained in Section 32 and Section 52 of POTA. The peremptory prescriptions embodied in Section 32 of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 that it is absolutely necessary that the confession maker shall be restored to police custody for any special reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section 32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference for further investigation. The CJM has a dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed. This Court rejected the contention advanced on behalf of the State that the two provisions, namely, Article 20(3) and Section 161, did not operate at the anterior stages before the case came to Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that the landmark decision in Miranda Vs. Arizona [1966, 384 US 436] did extend the embargo to police investigation also, the Court observed that there was no warrant to truncate the constitutional protection underlying Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 imperative on the police officer to inform the person arrested of his right to consult a legal practitioner, soon after he is brought to the police station. Thus, the police officer is bound to apprise the arrested person of his right to consult the lawyer. To that extent, Section 52(2) affords an additional safeguard to the person in custody. Section 52(2) is founded on the MIRANDA rule. A discussion on the raison d'etre and the desirability of the provision enacted in Section 52(1) read with Section 52(4) can best be understood by ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 obtained as a result of interrogation can be used against him". On the content of the right to consult a counsel not merely at the stage of trial, but also at the interrogation stage, Chief Justice Warren observed thus: "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) to (4) of Section 52 will be one of the relevant factors that would weigh with the Court to act upon or discard the confession. To this extent they play a role vis-`-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-Sections (2) to (5) of Section 32. 18. CASE OF MOHD. AFZAL (A1) (i) Legal Assistance : The first point raised by Mr. Sushil Kumar, appearing for the accused Afzal, was that he was denied proper legal aid, thereby depriving him of effective defence in the course of trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 appellant accused did not object to this course adopted by the amicus throughout the trial. No doubt, some of the documents admitted contained particulars of identification of the deceased terrorists by the appellant Afzal, but, the factum of identification was independently proved by the prosecution witnesses and opportunity of cross- examination was available to the accused. In the circumstances, we cannot say that there was a reasonable possibility of prejudice on account of admission of the said documents without formal proof. Coming to the next phase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; " The learned senior counsel for the State Mr. Gopal Subramnium has furnished a table indicating the cross examination of material prosecution witnesses by the counsel Mr. Neeraj Bansal as Annexure 16 to the written submissions. Taking an overall view of the assistance given by the Court and the performance of the counsel, it cannot be said that the accused was denied the facility of effective defence. (ii) Evidence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/9 & 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 of recording confession. He also deposed that he gave a warning that they were not bound to make the statement before him. A suggestion that Mohd. Afzal did not appear before him nor did he make the statement, was denied. The ACMM, after drawing up the proceedings, sent the accused Afzal to police custody for a week at the instance of I.O. PW80 for the reason that he was required to be taken to certain places in Kashmir for further investigation. We shall now give the gist of the confessional statement of Mohd. Afzal which is Ext.PW60/9 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azines, 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 used to be present. At the meetings, various targets such as Delhi Assembly, Parliament, UK & US Embassy and Airport were discussed. Then, after conducting survey of all the targets, Mohammed informed Ghazibaba that they should strike at the Indian Parliament. A final meeting was held in the house of Shaukat in which all were present and plans for attack on Parliament House were finalized. As per the plan, he along with Mohammed went to Karolbagh and bought a second hand Ambassador car on 11th December. They also purchased a magnetic VIP red light. Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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 also submitted that it is highly incredible that Afzal, who is a surrendered militant, and who is alleged to have maintained close contact with hard-core terrorists, could have, immediately after the arrest by police, developed a feeling of repentance and come forward voluntarily to make a confession implicating himself and others including a lady who had nothing to do with the terrorists. Another comment made is that the alleged meetings at Shaukat's place to discuss and finalize the plans to attack Parliament with persons whose advice or association had nothing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. 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 in-built procedural safeguards in Section 32 and the other safeguards contained in Section 52. It is contended by the learned senior counsel Mr. Gopal Subramanium that the DCP before recording the confession, gave the statutory warning and then recorded the confession at a place away from the police station, gave a few minutes time for reflection and only on being satisfied that the accused Afzal volunteered to make confession in an atmosphere free from threat or inducement that he proceeded to record the confession to the dictation of Afzal. Therefore, it is submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-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 subjected to any torture or intimidation, he need not direct judicial custody. Having regard to the circumstances of this case, there was nothing wrong in sending back Afzal to police custody. This contention cannot be sustained on deeper scrutiny. The clear words of the provision do not admit of an interpretation that the judicial custody should be ordered by the Chief Judicial Magistrate only when there is a complaint from the 'confession maker' and there appears to be unfair treatment of such person in custody. As already stated, the obligation to send the person whose alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining 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 the extent they could be observed or implemented at that stage. The non- invocation of POTA in the first instance cannot become a lever to deny the safeguards envisaged by Section 52 when such safeguards could still be extended to the arrested person. The expression 'the person arrested' does not exclude person initially arrested for offences other than POTA and continued under arrest when POTA was invoked. The 'person arrested' includes the person whose arrest continues for the investigation of offences under POTA as well. It is not possible to give a truncated int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 free to represent to the CJM about the police conduct or the treatment meted out to him. The haunting fear of again landing himself into police custody soon after appearance before the CJM, would be an inhibiting factor against speaking anything adverse to the police. That is the reason why the judicial custody provision has been introduced in sub-Section (5) of Section 32. The same objective seems to be at the back of sub-Section (3) of Section 164 of Cr.P.C., though the situation contemplated therein is somewhat different. The breach of the obligation of another provision, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity 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 has laid considerable stress on the fact that the appellants did not lodge any protest or complaint; on the other hand, they reaffirmed the factum of making confession when they were produced before the ACMM on the next day. It is further pointed out that as far as Afzal is concerned, it took nearly seven months for him to refute and retract the confession. After giving anxious consideration, we are unable to uphold this contention. The omission to challenge the confessional statement at the earliest before the Magistrate shall be viewed in the light of violation of procedural safeguards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the accused, through their counsel, agreed for admission of the postmortem reports without formal proof. Identification by a person in custody of another does not amount to making a statement falling within the embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of Evidence Act as a piece of evidence relating to conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person against whom an offence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Shaukat was having his own phones which were seized from his residence on 15th December. In the circumstances, even a presumption under Section 114 can be drawn that the number 9811489429 was at all material times being used by the accused, Afzal. The facts that the SIM card was not found in the mobile phone and that the IMEI number of the instrument was not noted by PW 61 cannot be the grounds to disconnect Afzal from the custody of the said phone. The IMEI number found on the phone was sent to trace the number of the cell phone. One more point has to be clarified. In the seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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, simultaneous activity on the laptop to create bogus I.Cards was going on at the same time i.e. 21.11.2001 onwards. On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001. This gap is explained by the prosecution by referring to the confessional statement of Afzal wherein he said that towards the end of November, he (Afzal) went to Kashmir and came back to Delhi along with two other terrorists in the first week of December. But as the confessional statement is not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for five minutes. On 12th December, Mohammed contacted Raja for 83 seconds and thereafter a satellite phone contacted Mohammed for 11 minutes and the same satellite phone contacted Raja twice for about 3= minutes. This is borne out by call records at volume VI. The phone number of Raja was 9810510816 as discovered from the phone instrument recovered from his body. Then we come to the crucial day i.e. 13.12.2001. Mohammed called Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the Parliament. This is borne out by the cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 an accused person relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either previous or subsequent conduct. There are two Explanations to the Section, which explains the ambit of the word 'conduct'. They are: Explanation 1 : The word 'conduct' in this Section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other Section of this Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure 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 hideouts of the terrorists in Delhi. Moreover, I can accompany you and point out the places at Karol Bagh wherefrom we had purchased the motorcycle and Ambassador car. For the time being, I have kept the said motorcycle at Lal Jyoti Apartments, Rohini with Nazeer and I can get the same recovered. " This statement has been signed by Mohd. Afzal. In fact it is not required to be signed by virtue of the embargo in Section 162(1). The fact that the signature of the accused Afzal was obtained on the statement does not, however, detract from its admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 shortwhile later and then left the premises subsequently. That the deceased terrorist Mohammed, whose photograph he identified, was also residing with Afzal sometime after the premises was taken on rent. The High Court accepted the testimony of PW34 including the identification of the deceased Mohammed by photograph (Ext.PW1/20). He could not identify the remaining four terrorists. Next, we come to the evidence in regard to the premises at INDIRA VIHAR and the recoveries therefrom. Mohd. Afzal, while being examined under Section 313 Cr.P.C. admitted that the house at 281, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.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 of testimony of PW32. At this stage, we may refer to the evidence of the experts of Forensic Science Laboratory, Chandigarh. PW22 testified in regard to the explosives contained in I.E.D. and the car bomb which was recovered from the scene of offence on 13th December, 2001. From his report Ext.PW21/1 and PW21/2, it is evident that Ammonium Nitrate, Aluminum/Silver powder and Sulphur was found in the explosives. The testimony of PW24 establishes that the samples of chemicals (collected from the hideouts) were Aluminum Nitrate, Sulphur and Silver powder. The same were found in the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Rs. 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 doubt the identification of Mohd. Afzal PW 40. We have already seen that ammonium nitrate was one of the chemicals recovered from the premises at Gandhi Vihar. PW-40 also identified the deceased Hamza by his photograph - Ext.40/2. According to PW-40, it is he who accompanied Afzal the next day. However, in the memo of pointing out which is Ext.40/1, it was recorded that Afzal disclosed that he visited the shop with Haider. This discrepancy or mistake in recording the name does not make a dent on the veracity of evidence of PW-40 on the point of identification of photogr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfidence, 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 any case, the evidence of PW-43 establishes the fact that Afzal bought the Mixer-Grinder of Sujata make on 7.12.01. The relevant cash memo was filed by him. The witness identified Afzal in the Court and also the Mixer-Grinder. The High Court has accepted the testimony of this witness. Thus, the nexus between the Mixer-Grinder which was recovered from the premises at Gandhi Vihar and the one purchased by Afzal from the shop of PW-43 stands established by the evidence on record. The evidence of the report of the experts, namely PWs 22 & 24 establish, as held by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 delivery receipt is proved by the analysis of his handwriting by the expert PW23. This is apart from the testimony of PW20. In the course of examination under Section 313 Cr.P.C., Afzal admitted that on 11.12.2001 he accompanied Mohammed to the shop of PW20 for purchasing a secondhand car but later he denied it. It is also worthy to note that Afzal did not let the amicus to put a suggestion that he had not visited the shop of PW20. PW20 deposed that he had taken photocopy of the I.Card and a coloured photo of Ashiq Hussain Khan, which are Exts.PW25/4 & PW20/3. PW20 further d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 eschew his evidence especially when the High Court found that his evidence was trustworthy. There is no warrant for the further observation of the High Court that independent corroboration of his testimony was lacking and therefore the evidence was liable to be ignored. Regarding the purchase of Motorola mobile phone (Ext.P28), PW76 deposed that on 19.12.2001, the accused Afzal led the investigating officials to the shop of PW49 at B-10, Model Town from where the said mobile phone was purchased. The memo of pointing out is Ext.PW49/1. The conduct of the accused in leading the I.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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 is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case, the Courts below have concurrently found the evidence of the prosecutrix to be reliable " The earlier observation at paragraph 10 is also important: "It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 reports which are Exts.PW72/1 and PW73/1. PW79, who was associated with PW73, was also examined by the prosecution. The laptop contained files relating to identity cards recovered from the deceased terrorists wherein the address was mentioned as Christian Colony or Gandhi Vihar. PW72 testified that he took printouts from the laptop which are Exts.PW59/1 to PW59/7 and PW72/2 to PW72/13 and these documents were compared to the original identity cards and the MHA sticker (Ext.PW1/8). The forensic expert PW59 submitted a report according to which the laptop (PW83) was in fact used for the creation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Officer, CFSL. He reported that the MHA sticker image and the images of identity cards found in the laptop match with those found at the spot in general size, design and arrangement of characters. As regards 'S' series (genuine sample documents), the finding was that they differed with the identity cards etc., found at the spot. It may be stated that the franchisees of Xansa Websity were examined as PWs 25 and 50 and they produced the genuine samples and also testified to the fake names and addresses printed on the identity cards. We agree with the High Court that the testimony of PWs 59, 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 the other experts. In the light of foregoing discussion, we hold that the laptop found in the custody of the appellants and the results of analysis thereof would amply demonstrate that the laptop was the one used by the deceased terrorists contemporaneous to the date of incident and it should have passed hands on the day of the incident or the previous day. The accused carrying the same with him soon after the incident furnishes cogent evidence pointing towards his involvement. The circumstances detailed above clearly establish that the appellant Afzal was associated with the deceased ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 this argument. The propriety by or otherwise of the action of the investigating agency in adding POTA at a later stage is one thing; whether the offence under POTA is made out, in addition to the offences under IPC, is a distinct point, one shall not be mixed up with the other. As far as the non- applicability of Section 3 of POTA is concerned, the learned senior counsel appearing for Afzal has not given any particular reason as to why the acts done by the deceased persons did not amount to terrorist acts within the meaning of Section 3(1) of POTA. Whether the appellant has committed the terrorist act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 special law dealing with terrorist activities and providing for punishment therefor. Conspiring to commit a terrorist act, among other things, is specifically brought within the fold of sub-Section (3) and is clearly covered by that sub-Section. Therefore, the learned counsel submit that the punishment as prescribed by sub-Section (3) alone could be applied even if the appellant is held guilty of the offence of conspiring to do a terrorist act with others. The question whether the conspiracy resulted in the commission of offences in order to achieve the objective of the conspirators is immaterial according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 Section 3(3) of POTA which says: "whoever 'conspires' or 'abets' a terrorist act shall be punishable with imprisonment which shall not be less than five years but which may extend to imprisonment for life". Taking resort to the abetment provisions in the IPC in order to locate the punishment for conspiracy to commit terrorist act would be wholly inappropriate when the abetment of the terrorist act is made punishable under Section 3(3) of POTA itself which prescribes the minimum and maximum punishment. In other words, invocation of Section 109 IPC is wholly unwarranted when POTA itself prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mohd. Afzal under Section 3(3) of POTA for conspiring to commit the terrorist act. Accordingly, we convict and sentence him. The conviction under Section 3(2) of POTA is set aside. The conviction under Section 3(5) of POTA is also set aside because there is no evidence that he is a member of a terrorist gang or a terrorist organization, once the confessional statement is excluded. Incidentally, we may mention that even going by confessional statement, it is doubtful whether the membership of a terrorist gang or organization is established. We shall then consider whether the conviction of Afzal under Section 120B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogy 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 or imprisonment for life is the punishment prescribed under Section 302 IPC. In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples' representatives, constitutional functionaries and officials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shall be punishable under POTA. As the appellant is being punished under that Section, irrespective of the liability to be punished under the other laws, Section 56 ceases to play its role. Then, we shall turn to Section 26 of the General Clauses Act, which lays down: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. It becomes at once clear that the emphasis is on the words 'same offence'. It is now well settled that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 could award for any one of such offences. The argument based on Section 71 IPC is no different from the argument advanced with reference to Section 26 of the General Clauses Act. For the same reasons, we reject this argument. The case of Zaverbhai Vs. State of Bombay [AIR 1954 SC 752] does not lay down any different principle. In fact that case is concerned with question of repugnancy of the State and Central laws. The next question we have to answer is whether the conviction of the appellant Mohd. Afzal under Sections 121 and 121A can be sustained. This raises the question whether the acts of the deceased terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position 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 repeal a law, it is high treason" ..The question always is, whether the intent is, by force and violence, to attain an object of a general and public nature, by any instruments; or by dint of their numbers". In 1820 Lord President Hope in his summing up speech to the jury in Rex Vs. Andrew Hardie, (1820, 1 State Trials N.S., 610) explained the distinction between levying a war and committing a riot in the following words: "Gentlemen, it may be useful to say a few words on the distinction between levying war against the King and committing a riot. The distinction seems to consist in this, although they may o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment 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, that in case of levying war the indictments generally charge, that the defendants were armed and arrayed in a warlike manner; and, where the case would admit of it, the other circumstances of swords, guns, drums, colours, etc., have been added. But I think the merits of the case have never turned singly on any of these circumstances". We find copious reference to these English authorities in the Judgments of various High Courts which we will be referring to a little later and in the 'Law of Crimes' authored by Ratanlal and Dhirajlal (25th Edition). In fact, they were referred to in extenso by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 January clearly would amount to a waging of war if the object of the insurgents was by armed force and violence to overcome the servants of the Crown and thereby to prevent the general collection of the capitation tax". The incident was described as a battle which was the result of a rebellion. Those who were parties to it were held guilty of waging war within Section 121 IPC. In the case of Maganlal Radhakrishan [AIR 1946 Nagpur 173] there was an elaborate discussion on the scope of Section 121 with reference to the old English cases on the subject of 'levying-war' and high treason. Certain decisions of Indian Courts e.g., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 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 meanings given to the expression to levy-war is : "attacking in the manner usual in war the King himself or his military forces, acting as such by his orders, in the execution of their duty." It was concluded "it is, I think, quite impossible to say that any of these appellants waged-war in the sense in which that expression, as it occurs in Section 121, Penal Code, was used". "The appellants or some of them were in possession of the armory at Gaya for several days and it is perfectly clear that they never intended to use it as a base for further operations". The next question is whether the dare devil and horrendous acts perpetrated by the slain terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners 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 group directed against the Government in power or the civil authorities. "Rebellion, revolution and civil war are progressive stages in the development of civil unrest the most rudimentary form of which is 'insurrection' vide Pan American World Air Inc. Vs. Actna Cas & Sur Co. [505, F.R. 2d, 989 at P. 1017]. An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression 'war' and it is seen from the old English authorities referred to supra that it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or Government. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 may be implied, particularly from the words 'each other' and (iv) both parties are expected to have symmetrical, although diametrically opposed, goals." The learned author commented that Oppenheim was entirely right in excluding civil wars from his definition. Mr. Dinstein attempted the definition of 'war' in the following terms: "War is a hostile interaction between two or more States, either in a technical or in a material sense. War in the technical sense is a formal status produced by a declaration of war. War in the material sense is generated by actual use of armed force, which must be comprehensive on the part of at least one party t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 or fire arms. Then, the other settled proposition is that there need not be the pomp and pageantry usually associated with war such as the offenders forming themselves in battle-line and arraying in a war like manner. Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to attain a commanding position by which terms could be dictated to the Government might very well be an act of waging war. While these are the acceptable criteria of waging war, we must dissociate ourselves from the old English and Indian authorities to the extent that they lay down a too general test of attainment of an object of general public nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 chosen was the Parliament a symbol of sovereignty of the Indian republic. Comprised of peoples' representatives, this supreme law-making body steers the destinies of vast multitude of Indian people. It is a constitutional repository of sovereign power that collectively belongs to the people of India. The executive Government through the Council of Ministers is accountable to Parliament. Parliamentary democracy is a basic and inalienable feature of the Constitution. Entering the Parliament House with sophisticated arms and powerful explosives with a view to lay a siege of that building at a time when members of Parliament, members of Council of Ministers, high offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contention. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the nation and its Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not in our view detract from the offence of waging war. There is no warrant for such truncated interpretation. The learned senior counsel Mr. Ram Jethmalani also contended that terrorism and war are incompatible with each other. War is normative in the sense that rules of war governed by international conventions are observed whereas terrorism is lawless, according to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 domestic criminal Courts. It is pointed out that the Hague convention and other international covenants which are embodied in Schedule III of the Geneva Convention Act, 1960 lay down the rules as to who the prisoners of war are and how they should be treated. In substance, it is contended that Section 121 IPC cannot be invoked against the participants in an undeclared 'war'. These arguments proceed on the assumption that the expression 'war' occurring in the Penal Code is almost synonymous with war in international law sense. The question of formal declaration of war by the Government would only arise in a case of outbreak of armed conflict with another countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld 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. Moreover, we have no material before us to hold that the views of Law Commissioners on this aspect, were accepted. Those views, assuming that they are clearly discernible from the extracted passage, need not be the sole guiding factor to construe the expression 'waging war'. Though the above observations were noticed in Nazir Khan's case, the ultimate decision in the case shows that the guilt of the accused was not judged from that standpoint. On the other hand, the conviction of foreigners (Pakistani militants) was upheld in that case. Another contention advanced by the learned counsel is that war including civil war must have a representative character and the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard 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 Rs. 25000/-. Under Section 4 of E.S. Act, he was sentenced to 20 years R.I. and to pay a fine of Rs. 25000/-. We are of the view that Clause (a) of Section 4 of E.S.Act is attracted in the instant case and the appellant Afzal is liable to be punished under the first part of the punishment provision. The relevant part of Section 4 of E.S. Act is as follows: 4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously (a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1997 and disbanding the same, his marriage with a Sikh girl named Navjot Sandhu @ Afsan Guru (A4) in the year 2000, purchase of truck in her name in June, 2000 and starting transport business, his cousin Afzal of Sopore studying in Delhi University in 1990 and his friendship with Gilani at that time. Then he stated about Afzal motivating him to join the jihad in Kashmir and in October, 2001, Afzal calling him from Kashmir and asking him to arrange a rented house for himself and another militant, accordingly arranging rented accommodation in Boys' Hostel at Christian Colony and Afzal accompanied by the militant Mohammed coming to Delhi and meeting him at his house in Mukherji Nagar and Afzal disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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 stated that he was made to sign blank papers and was not allowed to read the confessional statement before he signed it. Therefore, he requested the Court to record his statement afresh. Another application was filed on 3rd June, 2002 i.e. after the charge- sheet was filed disputing the proceedings recorded by the ACMM when he was produced before the Magistrate on 22nd December and also stating that he gave verbal confessional statement before a Special Cell Officer and not before DCP or ACP. He maintained that he was forced to sign some blank papers. The difference between the case of Afzal and Shaukat in regard to confessional statement is that the retraction was done by Shaukat much earlier i.e. within a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 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 possibility pointed by the learned counsel cannot be ruled out, yet, the argument is in the realm of surmise and we are not inclined to discredit the confession on this ground. Excluding the confession from consideration for the reasons stated supra, we have to examine the circumstantial evidence against Shaukat and assess whether he joined in conspiracy with Afzal and the deceased terrorists to attack the Parliament House or whether he is guilty of any other offence. The circumstances analyzed by the High Court and put against the accused Shaukat Hussain in the concluding part of the judgment, apart from the confession, are the following: 1. He along with Afzal took on rent room No.5, Boys' Hostel, B- 41, Christian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conclusion that Shaukat was a party to the agreement constituting conspiracy. Once the confessional statement is excluded, the evidence against Shaukat gets substantially weakened and it is not possible to conclude beyond reasonable doubt on the basis of the other circumstances enumerated by the High Court, that Shaukat had joined the conspiracy to attack the Parliament House and did his part to fulfill the mission of the conspirators. Apart from the confession, the High Court seems to have been influenced by the fact that Shaukat was in touch with his cousin as well as the deceased terrorist Mohammed through cell phone. But this finding, as far as telephonic contact with Mohammed is concerned, is not borne out by the cell phon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one 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 her and her husband Shaukat speaking from Srinagar. Another cell phone instrument with the number 9810446375 which was operated upto 7th December, 2001 was also found in the house and the same was seized. The call records indicate frequent contacts between Shaukat and Gilani and Shaukat and Afzal from the first week of November, 2001 upto 13th December, 2001. On the crucial day i.e. 13th December, 2001 just before the Parliament attack, Mohammed spoke to Afzal at 10.43 and 11.08 hours and then Afzal spoke to Shaukat at 11.19 hours and thereafter Mohammed spoke to Afzal at 11.25 hours and Afzal in turn called Shaukat at 11.32 hours. Mr. Shanti Bhushan has challenged the truth of recoveries of phones on the ground that no independent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 intercepted conversation was at 8.12 p.m. on 14th December, 2001 and the police could have acted only thereafter. Though the time of arrest, as per the prosecution version, seems to be doubtful, from that, it cannot be inferred that the search and recovery was false. One does not lead to the other inference necessarily. The search and recovery of phones having been believed by both the Courts, we are not inclined to disturb that finding. In any case, the fact that the phone No. 73506 was in the possession of Afsan Guru stands proved from the intercepted conversation and the evidence regarding the identification of voice. Next, it was contended that the printouts/call records have not been proved in the manner laid down by Section 63, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 & 6 (Shaukat's visits to Gandhi Vihar hideout) The evidence of PW34 who let out the 2nd Floor of his house at A-97, Gandhi Vihar to the accused Afzal through PW33 the property dealer, reveals that Shaukat used to come to meet Afzal who was staying there under a false name of Maqsood and that Shaukat used to meet Afzal at that place. PW34 identified Afzal and Shaukat. From the house in Gandhi Vihar, sulphur packets (purchased by Afzal), Sujata Mixer grinder in which traces of explosive material were detected, were found. PW34 identified the photograph of the terrorist Mohammed (Ext.PW1/20) as the person who stayed with Afzal for a few days in the premises. He stated that he could only identify the photograph of Mohammed but not res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished 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 spectrographic analysis of voice samples. He submitted a report Ext. PW 48/1. PW 48 testified that on comparison the voice was found to be the same. The High Court doubted the authenticity of the intercepted conversation on the ground that duration noted by the expert in his report was two minutes and 16 seconds was at variance with the duration of 49 seconds noted in the call records. The High Court laboured under the mistaken impression that the duration was 2 minutes and 16 seconds which was the duration of conversation between Gilani and his brother. Even then there is some discrepancy (between 49 and 74 seconds which according to PW48 was approximate) but no question was put to PW 48 in this regard nor any suggestion was put to PW 48 that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 according to the prosecution case, by that time, the deceased terrorists had settled down at their respective hide-outs with the help of Afzal. In the normal course, the terrorists would not have ventured to go out frequently and if necessary they would call Shaukat for a meeting at their place of stay instead of the whole gang going to Shaukat's place frequently. For all these reasons we have to discard the evidence of PW 45 insofar as he testified that the deceased terrorists were the frequent visitors of Shaukat's residence before the incident. In addition to the above circumstances, the prosecution has placed reliance on the evidence of PW45 who is the landlord of Shaukat to prove that not only Afzal but also the deceased terrori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by reasonable doubt, that the appellant Shaukat was a party to the conspiracy along with his cousin Afzal? We find that there is no sufficient evidence to hold him guilty of criminal conspiracy to attack the Parliament. The gaps are many, once the confession is excluded. To recapitulate, the important circumstances against him are: 1. Taking a room on rent along with Afzal at Christian Colony hostel into which Afzal inducted the terrorist Mohammed about a month prior to the incident. Shaukat used to go there. 2. The motorcycle of Shaukat being found at Indira Vihar, one of the hideouts of the terrorists which was hired by Afzal in the 1st week of December 2001. 3. His visits to Gandhi Vihar house which was also taken on rent by Afzal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 what was going on and he used to extend help to Afzal whenever necessary. Having known about the plans of Afzal in collaborating with terrorists, he refrained from informing the police or Magistrate intending thereby or knowing it to be likely that such concealment on his part will facilitate the waging of war. In this context, it is relevant to refer to Section 39 Cr.P.C.: 39. Public to give information of certain offences (1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely:-- (i) Sections 121 to 126, both inclusive, and Section 130 (that is to say offences against the State specified in Chapter VI of the said Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 three days prior to 13th December. We have already discussed his evidence. His version of identification of visitors by means of the photographs of the deceased terrorists was held to be incredible. As regards Gilani, in the first instance, he frankly stated that he could not identify the person who was sitting in the Special Cell i.e. Gilani, but, on a leading question put by the Public Prosecutor, on the permission given by the Court, PW 45 pointed out towards Gilani as the person that was in the Special Cell. It is noted in the deposition that initially the witness stated that he had not said so to the police about Gilani. In this state of evidence, no reliance can be placed on the testimony of PW 45 in regard to the alleged visits of Gilani to the house of Shauk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As regards the calls between Gilani and Afzal are concerned, the call records show that two calls were exchanged between them in the morning of 12th November, 2001. Then, Gilani called up Afzal on 17.11.2001 for 64 seconds and again on 7th December & 9th December, 2001. It is pointed out that on the reactivation of the telephone of Afzal i.e. 89429 on 7.12.2001, Gilani spoke to Afzal on the same day. The High Court observed that on the basis of these calls, it is not possible to connect Gilani to the conspiracy, especially having regard to the fact that Gilani was known to Shaukat and his cousin Afzal. Shaukat and Gilani lived in the same locality i.e. Mukherjee Nagar. It is not in dispute that Gilani played a part at the marriage ceremony of Shaukat (A2) and Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 husband on the cell phone at 00.45 hours on the intervening night of 12th / 13th December, 2001. It was contended before us that Gilani was not questioned on this point in his Section 313 examination. If a question was put, a clarification would have been given that in fact, the brother of Gilani had contacted Shaukat to convey good wishes. Comment was also made in regard to the role, assumed by the learned trial Judge, of putting questions to DW5. Though it appears that DW5's evidence is inconsistent with the defence version, as no specific question was put to Gilani on this aspect, we are not inclined to go so far as to hold that it is undoubtedly a false plea. Yet, it raises a grave suspicion that the accused was trying to hide something which might turn out to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fsan 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 informations furnished by other accused. There is no inextricable link between the alleged informations furnished by Gilani and the facts discovered. None of the investigating officers deposed to the effect that on the basis of information furnished by Gilani, any incriminating articles were recovered or hideouts were discovered. On the other hand, the evidence discloses the supervening informations which led the I.Os. to discover the things. The disclosure memo has also been assailed (Ext.PW66/13) on the ground that the arrest of Gilani was manipulated and therefore no credence shall be given to the police records. Whereas according to Gilani, the time of arrest was at 1.30 p.m. on 14th December, 2001 while he was going in a bus, according to the I.O., the arrest was effecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 layman picking up the phonetic sounds differently cannot be ruled out. The prosecution witness, PW 71, Rashid, who prepared a transcript of the tape is fifth class pass and it was not his profession to prepare transcript of taped conversation. The possibility of his being in error cannot be ruled out. Benefit of doubt must go to the defence." However the trial Court took the view that the translation by PW 71 appeared to be correct. The learned Counsel for the State submits that the High Court should not have discarded this piece of evidence on the ground of inaudibility, when two of the defence witnesses could hear and translate it. However, the fact remains that the High Court was not able to make out the words used nor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 of the Evidence Act as interpreted by us and the High Court. Practically there is no evidence left to bring her within the purview of Section 123 IPC much less within the net of conspiracy to wage war and to commit terrorist act. Indisputably, no positive or participatory role has been attributed to her and as rightly observed by the High Court, "she provided no logistics; she procured no hideouts; she procured no arms and ammunition; she was not even a motivator." She could have had some knowledge of the suspicious movements of her husband with Afzal who is his cousin and a surrendered militant. Of course, she was aware of the fact that Shaukat accompanied by Afzal left in her truck on the day of Parliament attack in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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