In connection with FIR No.517 of 1996 dated 21.05.1996 registered at Police Station Lajpat Nagar/Special Cell, the prosecution presented a challan in respect of a crime committed for destabilising the country by having a series of bomb blasts. The Trial Court vide common judgment dated 08.04.2010 convicted/acquitted the accused facing trial in relation to each one of the offences as also awarded requisite punishment, which also is indicated in a tabular form: A1 – Farooq Ahmed R.I. for 7 years A2 – Farida Dar Imprisonment for period already 5 undergone A3 – Mohd Naushad Death Sentence Acquitted A5 – Mirza Nissar Hussain @ Naza A6 – Mohd. Ali Bhatt @ Killey A7 – Latif Ahmed Waza The death sentence awarded against three of the accused was referred for confirmation to the jurisdictional High Court which was registered as Death Sentence Reference No.2 of 2010 and the appeals preferred by the accused were registered as Criminal Appeal Nos.948, 949, 950 and 951 of 2010 which stand decided vide common judgment dated 22.11.2012 rendered by the High Court of Delhi at New Delhi, in terms whereof, the accused were either acquitted and/or their conviction affirmed only in relation to certain offences.
A3 – Mohd Naushad Conviction Upheld Life Imprisonment (Death Sentence Commuted) Acquittal against conviction NA 2. Whereas A3 and A9 seek complete acquittal, the prosecution seeks complete reversal of the judgment rendered by the High Court, both on the question of conviction and sentence as awarded by the Trial Court. The Jammu Kashmir Police was intimated about these facts; and the police were provided with the two telephone numbers; the first was registered in the name of A1’ s (Farooq Ahmed Khan’s) father and the second was installed in the house of A2 (Farida Dar). 2
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The prosecution claimed that the Police obtained a break- through with the arrest of A9 – Javed on 01.06.1996 at Ahmedabad by the Gujrat Police, and his making a disclosure statement Ex.PW-99/B revealing the details of the various stages in which the explosives were brought into India and also revealing the names of the master mind behind the bomb blast, which included Bilal Ahmed Beg (A11), Juber @ Mehrazuddin (A12), Mohd. Several unsuccessful attempts were made to nab him and ultimately on 14.06.1996, upon the receipt of a tipoff, the police arrested him (A3) along with Mirza Iftekar (A4) from the New Delhi Railway Station at 7:40 PM while trying to board a train Vaishali Express to Gorakhpur.
4 On the basis of disclosure statements recorded by A6 and A7, a police party went to Shalimar Bagh, Delhi on 17.06.1996; the place was identified by the accused A7, from where thereafter a torn half two rupee note was given to Mangal Chand, who in turn handed over Rupees one lakh in cash to A4 to be given to A3 (Naushad). The prosecution case is that there was another bomb blast at Dausa, Rajasthan, in connection with which on 19.07.1996 the concerned Additional Chief Judicial Magistrate, Jaipur, namely, Bhagwan Das (PW-100) recorded a judicial confession of A9 – Javed (Ex.PW-100/A) wherein he narrated the sequence of events which he was aware of, implicating various accused as well as identifying their roles in connection with the bomb blast at Delhi. The accused, by procuring different materials from different places, prepared and made an unsuccessful attempt of bomb blast on 19.05.1996 and eventually succeeded on 21.05.1996. On 02.06.1996, Gujarat Police informed Delhi Police about arrest of A9 and A10 at Ahmedabad and their involvement in the Lajpat Nagar bomb blast. E) By A3 and A5 on 19.06.1996:- (i) Unique Agencies, the shop from where the Gas Cylinder for preparing the bomb was procured; (ii) Spot from where the Duplicate Key of the car was made; and (iii) Imperial Sound, the shop from where soldering iron and solder for making the bomb was purchased. High Court and Trial Court Findings 11.As already observed, the Trial Court proceeded to convict A3, A5, A6 and A9 and acquitted A4, A7, A8 and A10. The findings of the Trial Court and the High Court on each of the circumstances brought out by the prosecution as culled out by the Trial Court, are summarised as follows: 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 12.On the basis of the above circumstances, the conclusion qua each of the accused with which we are concerned, can be summarised as under : Trial Court Accused No.3, Mohd. Accused No 5, Mirza Nissar Hussain @ Naza: [Para 652] Confessional statement of A9, lead to the discovery of fact of this accused travelling to Delhi from Kathmandu; and his 33 further disclosure statement lead to a discovery of fact pointing out the shop for purchase of wall clock; pointing out of ‘Dulhan Dupatta’ shop, where the vehicle was parked on the day of unsuccessful attempt; pointing out the shop from where battery was purchased; identification of shop from where solder was purchased; and identification of shop from where wire got soldered, proved the active role played by A5 in the incident. Thus, prosecution fully established commission of offence under Section 302, 307, 436, 411 and 120B of the IPC. 35
[ Para 253 ] These circumstances, in the opinion of the Court, are sufficient to uphold the conviction under Section 5 of the Explosive Substances Act.
[ Para 266 ] Accused No 5 : The only circumstance held to have been proved was his travel from Kathmandu to Delhi, is in no manner advancing the case of the prosecution. Siddharth Dave, Senior Advocate appearing on behalf of A3, placed the following submissions before this Court: 14.1Starting point of the Prosecution case: The prosecution’s version of Police obtaining a breakthrough with the arrest of A9, on 01.06.1996, at Ahmedabad, in another case being FIR No.12/1996 is incorrect. 3Confession of A9 cannot be used against himself : The confession of A9, Ex.PW100/A recorded before Additional Chief Judicial Magistrate, Jaipur (PW100), in another criminal case registered and tried in Jaipur has no connection with the blast at Lajpat Nagar, New Delhi, and cannot be relied upon as an incriminating circumstance in view of the Constitution Bench judgment in Hari Charan Kurmi & Jogia Hjam v. Hence, the confession of a co-accused can only be used in support of 38 other evidence and cannot be made the foundation of a conviction. Further, in appeal the High Court held only 2 circumstances to be proved: (1) Arrest of A3 on 14.06.1996 from New Delhi Railway Station; and (2) Recovery of Explosives from his residence.
A4 – Mirza Iftqar Hussain alias Saba, who was allegedly arrested along with A3 on 14.06.1996 and at behest whose certain recoveries were made, stands acquitted by the Trial Court. 6Recovery of explosives from the residence of A3 cannot be the sole basis of conviction: It is submitted that PW92, who is the sole independent witness to the recovery of the explosives on 15.06.1996 from the residence of A3, has not supported the prosecution case. 8Disclosure statement of A3 is inadmissible under Section 27 of the Indian Evidence Act: It has been submitted that the information with respect to the facts discovered were already within the knowledge of the Police, thus, it cannot be held that the information supplied by A3 is the direct and immediate cause of the 42 discovery. 9There is no direct evidence forthcoming about A3’s role in the alleged bomb blast incident: The case of prosecution is that the Maruti Car belonging to PW8 – Atul Nath was stolen and used in the bomb blast at Lajpat Nagar. State of M.P., (1952) SCR 1091 (2-Judge Bench) : “In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. In criminal cases where the other 44 evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.” 11
The present case does not fall in the category of the rarest of rare cases to warrant the death penalty: The Appellant has undergone 27 years of imprisonment out of the sentence awarded to him. 2On 15.06.1996, Rajasthan Police arrested A9 in connection with FIR No.148/1996 registered under Sections 302, 307, 427, 120B of IPC; Section 3 of Prevention of Damage to Public Property Act, 1984 and Section 4, 5 of Explosive Substances Act, 1908. State of Karnataka, 2022 SCC Online SC 1400 (2-Judge Bench) on the point that in case of acquittal there is double presumption in favour of the accused and that the judgment of acquittal can 47 only be set aside if it is perverse in the eyes on the appellate court. Simply that some of the independent prosecution witnesses have not supported the prosecution, be it for whatever reason, cannot be a ground for rejecting the otherwise inspiring testimonies 48 of the police officers who had no personal interest in falsely implicating the accused in the crime in question. Prosecution Witnesses 18.For establishing its case, the prosecution examined 107 witnesses, which are categorised for ease as follows: 1) Testimonies of witnesses who have deposed about the occurrence of the blast on 21.6.1996: PW1 Om Prakash Tawar; PW2 Rajender Kumar; PW3 Sushil Kr. 5) Testimonies of police officers proving several facts : PW5 HC Hari Ram (Recorded FIR); PW9 Inspector Rajender Prasad; PW16 Inspector Rajender Gautam; PW17 Sub Inspector Sanjay Kumar; PW18 Inspector Pawan Kumar; PW19 Inspector Prem Bhallah Dhayani; PW23 Inspector Puran Singh, PW24 Sub-Inspector Hari Singh; PW25 S.I. Harender Singh; PW36 Inspector Rajeshwar Kumar; PW 39 Inspector Hari Ram Malik; PW40 Sub-Inspector Baljeet 50 Singh; PW41 Inspector Suresh Chander; PW42 SI Banwari Lal; PW43 Inspector Virender Singh; PW49 Inspector Jasvir Malik; PW63 Ct. 9) Testimonies of witnesses relating to pointing out (Discovery of fact) on 17.06.1996 : PW8 Atul Nath; PW17 SI Sanjay Kumar; PW31 Inspector Surinder Kumar; PW35 Raj Kumar and PW101 Inspector Paras Nath. 10) Testimonies of witnesses relating to pointing out (Discovery of fact) on 18.06.1996 : 51 PW11 Nafiz, PW31 Inspector Surinder Kumar; PW32 Mohd. 11) Testimonies of witnesses relating to pointing out (Discovery of fact) on 19.06.1996 : PW31 Inspector Surinder Kumar; PW36 Inspector Rajeshwar Kumar; PW39 Inspector Hari Ram Malik; PW48 Parmod Kumar; PW50 Yogesh Kumar Gupta; PW52 Mohd.
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This incident on 21.05.1996 also resulted in loss of property to the public. 2PW11 – Nafiz in his deposition admits to have known A3, as he was running a shop adjacent to his shop and denies having any knowledge about the case or having made any 54 statement to the police and also having seen A3 on 14.05.1996 getting a hole drilled in a gas cylinder. In Court, the witness denies having known anyone of the accused, be it A3, A5, A6 or A9. 5PW16 – Inspector Rajender Gautam in his deposition states that on 14.06.1996, he joined the investigation with Inspector Paras Nath, Inspector Suresh Chander and SI Surender Verma. A6 and A7 made disclosure statements bearing his signatures vide Ex. Accused A5 pointed out the shop bearing No.3/32 Bhogal vide memo Ex. The said accused accompanied the police party and pointed out (Discovery of fact) the house belonging to A8 at Jangpura from where stepney (tyre) of the car was recovered vide Ex.PW8/B bearing his signature. 8PW31 Inspector Surinder Kumar has deposed that on 15.06.1996 he joined the investigation, and A3 took the police party to his residence at Turkman Gate from where two RDX slabs weighing 1kg 150gms; Jayco alarm time piece with two wires coming out of it; one detonator with wire; one iron solder; one screwdriver; two araldite tubes; one gas cylinder and certain other articles were recovered 59 vide memo Ex.PW31/A, bearing his signature and also of independent witness PW92 – Abdul Samad. On 18.06.1996, the accused got recovered the original front number plate of the stated vehicle from a place known as Mehal Khander vide Ex.PW31/D and the rear original number plate recovered from the place opposite to Oberoi hotel vide Ex.PW31/E, bearing his signatures. 60 On 18.06.1996, the accused also pointed out (got identified): (i) the location where the stolen car was parked at Zakir Nagar; (ii) the Dulhan Rangrej Shop where on 19.05.1996, they parked the car loaded with RDX but did not explode due to weak battery; and (iii) the location where they parked the car on the day of the blast.
Naseem [ owner of shop where A3 and A5 allegedly purchased wire ] who turned hostile denies that A3 and A5 purchased a wire from his shop on 13.05.1996 and stated that police obtained his thumb impression on a piece of paper but he is not aware of its contents. He corroborates the version of PW31 on pointing out (Discovery of fact) of several locations by A3, A4 and A5 on 18.06.1996 & 19.06.1996. On 28.06.1996 he again visited Gorakhpur for recovery of visitors’ register from Gupta Hotel (Ex.PW40/E) and Budha Hotel (Ex.PW40/F), where A3 had stayed. When we perused the cross-examination part of the testimony of this witness, as conducted on behalf of A8, we find the endeavour to impeach the credibility of the witness was primarily on the ground of non-association of independent witnesses.
However effective his deposition is, as the factum of his visit to Mussoorie along with PW23 when A5 was arrested and brought to Delhi where his disclosure statement vide No doubt this witness has not supported the prosecution on the aspect of identification of anyone of the accused, i.e., A5 and A6, who had allegedly purchased the said clock but however, on the material aspect of the sale of the clock he fully supports the prosecution, which version of his stands fully corroborated with material fact by his employer, namely, PW50 – Yogesh Kumar who identifies the purchases of clock to be made by A5 and A6. He states that 8-9 years ago, when some persons had enquired about purchase of araldite, he answered that he does not remember any specific instances as several customers come to his shop. In his deposition he stated that in 05.1996, two persons had come to his shop to purchase gas cylinder from whom he took deposit of Rs.290 and asked them to collect the cylinder the next 68 day.
However, with regard to the identification of the accused he categorically does not deny that the two persons brought by the police were the persons who had purchased the articles but in fact states that “may be one of them” was A3. Even though the witness turned hostile and cross-examined by the public prosecutor, however, from the cross-examination part of his testimony it is evident that the accused accompanying 70 the police had identified his shop, being the place where they had parked the vehicle, vide pointing out memo Ex.PW31/R, which bears his signatures. He further admits which version of his is unrefuted that on 20.05.1996, the vehicle was found not parked at the place where it was so done by the accused.
(pg.2093) 24.27 PW83 – Vijay Kumar Manager of Gupta Hotel has testified that A3 stayed at the hotel in Room No.14 on 27.05.1996. He comes out with a new version of the recovery not being effected in his presence and “3-4 days later” he was called to the police station Lodhi Road and made to sign document Ex.PW31/A, which was partly written, but contents thereof, not read out to him, as he is not literate. Patil, DSP ATS Ahmedabad has deposed that on suspicion he interrogated four persons who disclosed their name as Asdullah, Rashid Ahmad, Javed Khan and Juber Bhatt.
On 25.06.1996, SI Waghela and the police party were in search for the above-mentioned persons and found one relevant entry in the register of Anukul Guest House. On 2.6.1996, he was informed that accused A9 – Javed Ahmed Khan and A10 – Abdul Gani had made a disclosure statement and revealed certain information to the police at Ahmedabad of having delivered 8 kgs of RDX at the residence of one Wajid Kasai, a resident of Turkman Gate, whereafter on making 76 inquiries he was able to trace the place where the RDX was delivered. Under interrogation A3 made a disclosure statement of having kept certain incriminating material at his house which led to discovery of fact, i.e., identification of the house, the place where A3 had kept the said material and the recovery of the leftover articles for preparing bomb. The preparation for the blast and carrying out the same was brought to knowledge of the police through the recovery and pointing out in the following chain of circumstances :- (i) Recovery of the stepney of the vehicle stolen by the accused In pursuance of the separate disclosure statements made by A3, A5 and A6, the police party was led to premises No.4/11, Second Floor, Double Storey, Jangpura, from where one stepney of Maruti car came to be recovered vide memo Ex.PW 8/B and Ex.PW 8/C and the owner of the car PW8 was called and his signatures were taken at point A of seizure memo. iii) Pointing out proceedings on 18 and 19.06.1996 by A3, A5 and A6 a) Place where number plates were made, i.e., Raja Car Number Plate situated at Yusuf Sarai Market, New Delhi, vide identification memo Ex.PW 31/R. i) All accused persons then pointed out a place under Lodhi flyover from where the rear original number plate of the Maruti car was recovered vide pointing out-cum-recovery memo Ex.
81 A5 pointed out Shop No.3/32 situated at Bhogal, Delhi and informed the police party that he had made a telephonic call to A7 at Kathmandu on 19.5.1996 vide pointing out memo Ex.PW 16/A.
No doubt the witness attempts not to have obtained the opinion of the experts as to whether the cylinder would have been drilled or not but then this fact alone would not negate the 82 prosecution case for it is not a suggested case of the accused that the blast carried out was not with the use of RDX, which was not readily available in the market and which was, in fact, used, as has come out in the testimony of the other witnesses for making the bomb, if on the issue of the material collected against the accused, pertaining to their State and travelled at different places, stands duly proven by this witness. Here only we may add that the witnesses, in any manner, falsify the stand of the prosecution for neither the father nor any other independent witnesses stand examined proving the alleged letter purportedly written by the father or the factum of the accused having been illegally detained or arrested prior to 14.6.1996.
Also, if the accused person received or retained a stolen property, in this case, the Maruti car; or if intentionally or knowingly caused wrongful loss or damage to the public or any person by use of fire or explosive substance. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine 85 of benefit of doubt. It is in the light of this legal position that the evidence in the present case has to be appreciated.” Further, on the point of as to whether the accused persons can be convicted or not on the basis of circumstantial evidence is now evidently clear and we need not dilate on the issue any further, save and except refer to the five golden principles curled out by this Court in Sharad Birdhichand Sarda v.
The State of Punjab AIR 1953 SC 459 (2 -Judge bench); Deonandan v. The Court, before relying on the circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with the innocence of the accused possible nor is there any plausible explanation. Emperor AIR 1947 PC 67 (5- Judge Bench), way back in the year 1947: “ The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as release distinctly to the fact thereby discovered may be proved. …
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.
State (Delhi Administration), (1988) 3 SCC 609 ( 3- Judge Bench), wherein this Court observed: “271. D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. Reports 508) pertinently states: “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.
Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition: [1974 Criminal Law Review 297, 299] “Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co- conspirators. 193) “The limits of the admissibility of evidence in conspiracy cases under Section 10 of the Evidence Act have been authoritatively laid down by the Privy Council in Mirza Akbar v. In that case, Their Lordships of the Privy Council held that Section 10 of the Evidence Act must be construed in accordance with the principle that the thing done, written or 93 spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. There can be two objections to the admissibility of evidence under Section 10 and they are (1) the conspirator whose evidence is sought to be admitted against the co-conspirator is not confronted or cross- examined in court by the co-conspirator and (2) prosecution merely proves the existence of reasonable ground to believe that two or more persons have conspired to commit an offence and that brings into operation the existence of agency relationship to implicate co-conspirator. A conspirator is not, however, responsible for acts done by a conspirator after the termination of the conspiracy as aforesaid.
613), this Court said that in cases of conspiracy better evidence than acts and statements of co-conspirators in pursuance of the conspiracy is hardly ever available. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other 97 substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to 98 and growing out of the original purpose.
And one who tacitly consents to the object of a conspiracy and goes along with 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.” (Emphasis supplied) 37. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.” (Emphasis supplied) 38. Therefore, the first thing which needs to be examined is as to whether A9 was actually arrested on 01.06.1996 or prior thereto.
Such ongoing search led the police party to the resultant arrest of four persons on 01.06.1996 including A9 near Rupali Cinema, Ahmedabad. On this issue, the High Court rightly rejected the contention of A9 being arrested much prior to 01.06.1996, on 24.05.1996. In law, such confession can be made before “any” metropolitan magistrate or judicial magistrate, whether or not, he has jurisdiction in the case. 27 is a proviso that when any fact is discovered in consequence of information received from a person accused of any offence whilst in the custody of a police officer, so much of such information, whether it amounts to a confession or not, may be proved. 162 is confined to statements made to a police officer in course of an investigation. 26 which includes any statement made by a person whilst in custody of the police, and appears to apply to such statements to whomsoever made, e.g., to a fellow prisoner, a doctor, or a visitor. 790] ] person can be used against a co-accused [sic accused [ As clarified by a later Bench in (2004) 7 SCC 779 in 105 paras 21 to 24 at p.
Lalit Mohan Chuckerbutty [Emperor v. the provision goes no further than this—where there is evidence against the co-accused sufficient, if 106 believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.” [10] Translating these observations into concrete terms they come to this. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. State of Rajasthan [Rameshwar v. State of Assam, (2007) 11 SCC 467 (2-Judge Bench)]. State of Maharashtra 1969 (2) SCC 872 (3-Judge bench), observed as under: “ The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Attache (case) was containing wireless set, detonator, time pencil and remote control. On May, 1996 two more persons also came from Pakistan to our rooms where we used to reside in Kathmandu. Killey, Riyaz Maula and Javed of’ Soparewala left for Delhi from Kathmandu but in the morning of 12″ May when we reached at the border, I remained there and all. On 21 May, I, Asadullah who got his name written as Nuruddin in the ticket, Rashid whose name was got written as Jalaluddin and Julfikar, all left from Patna to Mumbai and reached Mumbai on 23 May. At about 4-5 O’clock, Asadullah and Rashid came over there and CBI officials took all of us to Ahmedabad and interrogated us. It is not necessary that each and every circumstance mentioned in the confession regarding the complicity of the accused should be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made.
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Stay of A9 at New Delhi on 14.05.1996 (Circumstance No. With respect to the stay of A9 at Delhi on 14.05.1996, the testimony of PW46, is of relevance. He further states that in his interrogation A9 stated that he was given a military colour bag containing RDX and detonators by A7 – Latif, which he was asked to hand over to A5 – Naza at the residence of PW13 at Turkman Gate, Delhi. The High Court upheld the Trial Court finding and stated that even though PW13 and PW14 turned hostile and did not support the prosecution, the address of PW13, residing at Turkman Gate is proved as a fact, which amounts to facts discovered subsequently. Such a disclosure statement of A3 was recorded on 15.06.1996 as Ex.PW31/B verified by PW31 – Inspector Surinder who 114 identifies his signatures thereon and PW101 – Inspector Paras Nath.
This fact finds corroboration in the disclosure statement (Ex.PW23/B) of A5 that on 10.5.1996 he had come to Delhi through AIR Royal Nepal Airlines by the name of Mirza Nisar Hussain for making arrangement of gas cylinder and other 115 articles for making bomb and had also spoken with Naushad. Normally, if a statement made by an accused person is found to be voluntary and it amounts a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. Section 3 defines “evidence” as meaning and including— “(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documents are called documentary evidence.” Technically construed, this definition will not apply to a confession. Such an approach can, however, be adopted by the court in dealing with a confession, because Section 30 merely enables the court to take the confession into account.
In appreciating the full effect of the provisions contained in Section 30, it may be useful to refer to the position of the evidence given by an accomplice under Section 133 of the Act. Reading these two provisions together, it follows that though an accomplice is 118 a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The case of the prosecution is that A3 was arrested along with A4 on 14.06.1996 from Platform No 4, New Delhi Railway Station.
This view is fully cor roborated by PW39 – Inspector Hari Ram Malik, and PW101 – Inspector Paras Nath who verified t he personal search memo of A3 is Ex. We find ourselves to be in agreement with the reasoning of the High Court on this aspect as observed that Courts cannot completely overlook the fact that in matters involving serious offence, members of the public are reluctant to associate with police proceedings either for fear of persecution or for the sheer harassment of having to attend numerous and interminable Court hearings. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently.
The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.” (Emphasis supplied) 122 70. We find the reasoning of the High Court on this aspect to be appropriate, which is that: “ T he State’s inability to prove the clues or sources or even the witness’s reluctance to support those factors during the trial or the prosecution’s omission to cite any witness would not by itself mean that the entire circumstance has to be disbelieved. It is a fact that in the statement of A-9 made to the Gujarat police as well as in his confessional statement, there is a clear mention of Wajid (PW-13), a resident of Turkman Gate. 1996, needs to be repelled for the reason that – (a) the author of the complaint sought to be proved through testimony of DW-2 and DW-1 alleging such fact, was never examined in Court. After his arrest, A3 made a disclosure statement (Ex.PW31/B), which led to recovery, pointing out and discovery of facts as well as incriminating material. 1 lakh from A4 ( Circumstance No.17 ); (iv) Recovery of front and rear number plates ( Circumstance No.25 ); (v) Recovery of duplicate key from Nizamuddin ( Circumstance No.26 ); (vi) Pointing out of shop where duplicate key was prepared ( Circumstance No.31 ); (vii) Pointing out of shop where fake number plates were prepared ( Circumstance No.18 ); (viii) Pointing out of place where Maruti Car was 126 parked for days before the blast ( Circumstance No.22 ); (ix) Pointing out of Dulhan Dupatta shop where the car was parked on 19.05.1996 ( Circumstance No.23 ); (x) Pointing out residence of A8 from where stepney of stolen Maruti car was recovered ( Circumstance No.15 ); (xi) Pointing out of shop from where soldering iron and solder was purchased ( Circumstance No.32 ); (xii) Pointing out of shop from where gas cylinder was purchased ( Circumstance No.30 ); (xiii) The Court held that the stay at Gupta Hotel was not challenged by A3 and the police only came to know about this fact through the disclosure statement but for which, such fact would not have been proven. PW66 and PW40 both testify about the visit of A3 to Gorakhpur on 27.05.1996 through the railway reservation chart dated 27.05.1996 and his stay which appears through the hotel’s visitor book of dates 18.02.1996 to 29.06.1996.
State of Kerala, (2000) 5 SCC 197 (3-Judge Bench) it was observed that during the time of questioning under Section 313 Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. State of Himachal Pradesh, (2014) 4 SCC 9 (2-Judge bench)] 81. On the circumstance pertaining to recovery from A3’s residence ( C ircumstance No.10) on 15.06.1996, both the Courts below have held this circumstance to be proved. PW31 prepared a seizure memo Ex.PW31/A of the aforesaid mentioned articles which bears his signature and the signature of an independent witness, PW92.
The State of U.P., 2021 SCC OnLine SC 1131, (3-Judge Bench) this Court while reiterating the principles in appreciating the testimony of witness who turned hostile observed as under : – “It is well settled that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution choose to treat them as hostile and cross examined them. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of testimony which he finds to be creditworthy and act upon it.” 132 86. In this report the following results are arrived at: 88.1.1 Parcel 1 contains two rectangular slabs of black colour putty which is alleged to be explosive substance. On a conjoint reading of the above, it is thus proved that the material recovered from the residence of A3 is explosive material in the form of ‘RDX’, no different than the 134 one used in the blast at Lajpat Nagar. However, it has been reversed by the High Court on the reasoning that the conclusion of the Trial Court in this regard is based entirely on hearsay and the recovery of Rs.1 lakh at the instance of A4 could not be 135 an incriminating circumstance against A3 when A4 & A7 stands acquitted by the Trial Court. State (1996) 3 SCC 338 (2-Judge Bench), wherein this Court observed : 136 “ Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” [See also Parasram v. State of Maharashtra AIR 1996 S.C 2943 (2-Judge Bench)] However, with a word of caution, in Anil alias Andya (supra) this Court observed that prudence requires that the evidence of the police officials, who are interested in the outcome of the result of the case, be carefully scrutinized and independently appreciated. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined.
But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. We are unable to agree with the reasoning of the Courts below since: (a) independent witnesses not being present or examined does not vitiate the testimonies of the police witnesses; (b) the number on the plates so recovered, matches with the original number of the car; (c) the pointing out memos Ex.PW31/D and Ex.PW31/E have been proved 140 and nothing has been brought about in the cross- examination of the above-witnesses so as to cast doubt on their testimonies for this circumstance; (d) the front and rear number plates are recovered separately from different places which further strengthens the prosecution case that this fact was not within the knowledge of police party prior to the disclosure statement of accused persons and it is only after their statements that they could discover the fact of original number plates being at different places. The Trial Court has stated that t he key was recovered from an open space after about one month of the incident which creates doubt on the 141 prosecution case. In our view, the circumstances surrounding the recovery of the number plates (circumstance No.25) and the present circumstance (circumstance No.26) stand on a similar footing and therefore, considering the testimonies of prosecu tion witnesses, this circumstance is held to be proved. It is the case of the prosecution that A3, A5 and A6 led the police to the shop from where they got the duplicate key made for stealing the Maruti car to use it in the said blast (circumstance No.31). The High Court reversed the finding of the Court below 143 with the reasoning that on circumstance No.26, pertaining to recovery of the key, the Trial Court has held PW64, to not support the prosecution case, t herefore, on a similar circumstance, concerning the same witness, a contradictory finding cannot be given. The prosecution submitsthat on 18.06.1996, the accused persons pointed out the shop from which duplicate number plates, which were installed onto the stolen Maruti Car, were made (circumstance No.18). The High Court upheld the finding of the Trial Court and held that no independent witness from the adjoining shop at the time of preparation of the identification memo Ex.PW31/R was examined. It is the case of the prosecution that the accused persons led the police party to the house where the accused persons pointed out the spot where the car was parked for a few days before the blast at Lajpat Nagar (circumstance No.22). It is the case of the prosecution that on 18.06.1996, A3, A5 and A6, pointed out the place/ s hop which is allegedly the 147 shop where these accused persons had parked the car on the day of the unsuccessful blast, i.e., 19.05.1996 (circumstance No.23). The Trial Court held this circumstance to be proved on the basis of the testimonies of PW31 and PW39, which remained unchallenged in cross-examination and the pointing out memo Ex.PW-31/R, being proven. The fact that the car was parked at a particular place on the day of failed attempt is the ‘fact discovered’ pursuant to the disclosure statements of the accused persons namely A3, A5 and A6, thus the finding of the High Court that the shop was already in the public view, being conspicuously located, hence there was nothing to be discovered by the police is an unsustainable reasoning. Even if the test identification parade is not held and witnesses identify the accused for the first time before Court, evidence regarding identification does not become inadmissible and cannot be discarded on the ground of not being proceeded by test identification parade, when Court finds the same trustworthy.
PW17 in his deposition states that accused persons, namely A3 A5 and A6, got a car stepney recovered from A8’s residence vide recovery memo Ex.PW/8 which bears his signature. However, he identifies his signature on Ex.PW8/C which is the memo regarding the identification of the stepney, prepared at the time of the recovery, as deposed by PW101. In our view, from a perusal of the testimonies of PW8, PW17, PW 31 and PW 101, it is clear that: (a) the police party was led by the accused persons to the residence of A8 for the purpose of the recovery of the stepney on 17.06.1996; and (b) despite turning hostile in his deposition, the signature of PW8 on the memo regarding identification of the stepney (Ex.PW8/C) remains unblemished and he further identifies the stepney of his car which has been so recovered. (1999) 8 SCC 649 (2-Judge Bench), the Court while construing the provisions of Section 145 to 162 of the Evidence Act has clearly held that minor variation with the former statements would not amount to contradictions, thus rendering the testimony of the witness to be unworthy of credit. What would construe material discrepancies in the testimony of witnesses stands explained by this Court to be discrepancies which are “not normal, and not expected of a normal person”. The Trial Court had held that the testimony of PW31 and PW39 remain unchallenged and the pointing out memo Ex.PW 31/K was proved.
It is the prosecution case that on 19.06.1996, A3 and A5 pointed out the shop from where the gas cylinder, used in the bomb blast at hand was purchased by the accused persons. The Trial Court held this circumstance to be proved and held that the names of A3 and A5 were mentioned in the pointing out memo Ex.PW31/M which contains the signature of the independent witness, PW54. This circumstance has been held to be proved by the Trial Court holding that mere recovery of drill machine without any specific mark of identification from the shop of PW33 is not an incriminating circumstance. In view of the above, we agree with the reasoning of the Trial Court on this circumstance that pointing out of this shop, which was not in the knowledge of the police, has not come to be disputed through the testimonies of the prosecution witnesses. A3 and A5 led the police party to a shop from where they had purchased two meter yellow colour wire (Circumstance No.
The High Court upheld the finding of the Trial Court on this circumstance, on the reasoning that PW52, who is the owner of this shop, has denied the prosecution version. PW101 and PW31 both have deposed that this shop was pointed out by A3 and A5 on 18.06.1996 in the presence of PW52 – Mohd. Arrest of A3 on 14.06.1996 (Circumstance no.9) ii. Pointing out of shop where Duplicate Key was prepared ( Circumstance No 31 ) vii. Pointing out of shop where fake number plates were prepared ( Circumstance No 18 ) viii. The cumulative effect of these circumstances so established, in the considered view of the Court, brings out the endeavour and active role of A3 in carrying out the blast at Lajpat Nagar, New Delhi. The State of Punjab, AIR 1953 SC 459 (2-Judge Bench), this Court observed: “ Though the High Court has full power to review the evidence upon which an order of acquittal is founded, yet the presumption of innocence of the accused being further reinforced by his acquittal by the trial court, the findings of that court can be reversed only for very substantial and compelling reasons. It is not enough for the Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong in appreciating the evidence. The interference in an appeal against acquittal by special leave under Article 136, this Court has undoubted power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction, though in the case of acquittal it will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court “acts perversely or otherwise improperly”. Where the findings of fact returned by the courts below are bordering on perversity and result in miscarriage of justice, the Supreme Court under Article 136 would intervene to prevent such miscarriage of justice. PW23 states that on 17.06.1996 he along with his staff had gone to Mussoorie from Delhi and arrested A-5 from Minerva Hotel at Mussoorie and conducted his personal search vide memo Ex. Consequently, A5 was brought to Delhi and when interrogated, he had made his disclosure statement vide memo Ex.PW23/B. It is evident from the testimony of PW23 that on arriving at Mussoorie, he made entries at PS Mussoorie on the intervening night of 16/17.06.1996 at about 01.00 AM, which we find to be corroborated by PW43, who stated that they departed from New Delhi at noon on 16.06.1996 and arrived at Mussoorie in the early hours of the morning.
Following are the circumstances relevant for this purpose: (i) Pointing out shop, where 9V battery used in the blast was purchased (Circumstance no. It is the case of the prosecution that A5 and A6 led the police party to the shop of PW60, Ganesh Electronics, the shop from where they purchased 9V battery to be used in the bomb blast at Lajpat Nagar. A5 & A6 have pointed out the shop from where the battery used in the bomb blast was purchased and the police did not have knowledge of the same, prior to the disclosure and pointing out by A5.
It is the case of the prosecution that A5 and A6 led the police party to the shop of PW38, Vijay Electronics, where soldering of the terminals of the battery was done. The testimony of PW31 and PW39 records that on 19.06.1996 both A5 & A6 took them to Vijay Electronic where they had got the wires fixed on the battery used in the blast. This circumstance was held to be proved by the Trial Court by placing reliance on the documentary evidence of bill receipts and the testimonies of PW48 and PW50. PW311996 states that on 19.06.1996, the accused persons pointed out Imperial Gramophone Company where Jayco alarm piece was bought vide bill which was recovered through recovery memo Ex.PW31/G. Pushpa Market Lajpat Nagar near Fountain Park Car Parking vide pointing out memo Ex.PW31/T, where the accused persons had parked the car fitted with the cylinder bomb on 21.05.1996 6:15PM.
The Trial Court held that this pointing out cannot be held to be an incriminating circumstance against A5 and A6 since this spot was known to the police from 21.05.1996, the day of the incident. Pointing out of Dulhan Dupatta shop where the car was parked on 19.05.1996 (Circumstance No.23) vii. At first, we examine the independent circumstance against A6, i.e., arrest of A6 from Gorakhpur on 16.06.1996. The prosecution case is that A6 was arrested from Gorakhpur on 16.06.1996 at the instance of A3 & A4. However, the Court further held that since nothing incriminating was recovered at the time of apprehension of A6, his arrest is not an incriminating circumstance against him. Similarly, the High Court also observed that the arrest of A6 is not an incriminating circumstance against him and it is at best a neutral circumstance. Pointing out of Dulhan Dupatta shop where the car was parked on 19.05.1996 (Circumstance No.23) vii. Pointing out of Dulhan Dupatta shop where the stolen car was parked on 19.05.1996 (Circumstance No.23) viii. It is further evident from the confession of A9, that A6 was moving along him and other accused, namely A15 and A13, throughout for the planning and execution of the bomb blast. The involvement of A3, A5 and A6 comes to be proved through the following circumstances: (a) The original number plates bearing No.DL 2CF 5854 came to be recovered at the instance of the accused persons and the said circumstance has been held to be proved (circumstance No.25); (b) The stepney of the Maruti car belonging to PW8 came to be recovered by the accused persons from the residence of A8 and has been held to be proved, the same being identified by PW8 (circumstance No.15); and (c) The accused persons have pointed out the shop where they got the duplicate key prepared for stealing the vehicle and duplicate number plates for the same which have been held to be proved (circumstance Nos.18 and 31).
The acts of the accused persons A3, A5 and A6, as proved by the above-mentioned circumstances, warrant conviction under Section 411 IPC, as held by the Trial Court. From an evaluation of the evidence on record including the judicial confession of A9, it is evident that all these accused persons 183 were known to each other and were participating with the common objective to carry out the blast in Delhi in furtherance of an international conspiracy to cause disruptive activities in India. This brings us to the issue of sentence, since the Trial Court had imposed Death Sentence on A3, A5 and A6 and the High Court acquitted A5 and A6, while the death sentence awarded to A3 was commuted to life imprisonment. State of Maharashtra, (2010) 14 SCC 641 (2-Judge Bench), wherein it was held that in terms of rule of prudence 185 and from the point of view of principle, a Court may choose to give primacy to life imprisonment over death penalty in cases which are solely based on circumstantial evidence or where the High Court has given a life imprisonment or acquittal. State of Karnataka (2008) 13 SCC 767 (3-Judge Bench) was affirmed by a Constitution Bench of this Court in Union of India v. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away on account of the deficiencies in the criminal justice system. State of Rajasthan, (2022) 9 SCC 81 (3- Judge Bench).]
Case Title: MOHD NAUSHAD Vs. STATE OF (GOVT. NCT, DELHI) (2023INSC605)
Case Number: Crl.A. No.-001269-001269 / 2013
