Full Judgement
Mohd. Arif @ Ashfaq Vs. State of NCT of Delhi
J U D G M E N T
V.S. SIRPURKAR, J.
1. The appellant (admittedly a Pakistani national) challenges his concurrent conviction by the trial Court and the High Court as also the death sentence awarded to him, in this appeal. 2. On 22.12.2000 at about 9 p.m. in the evening some intruders started indiscriminate firing and gunned down three army Jawans belonging to 7th Rajputana Rifles. This battalion was placed in Red Fort for its protection considering the importance of Red Fort in the history of India.
There was a Quick Reaction Team of this battalion which returned the firing towards the intruders. However, no intruder was killed and the intruders were successful in escaping by scaling over the rear side boundary wall of the Red Fort. This attack rocked the whole nation generally and the city of 2Delhi in particular as Red Fort is very significant in the history which was taken over by British Army way back in 1857 and was retrieved back to India on 15.8.1947. It is also significant to note that the Prime Minister addresses the nation from this very Red Fort on every 15th of August. The three unfortunate soldiers who lost their lives in this attack were:-
(i) A civilian Sentry namely, Abdullah Thakur
(ii) Rifleman (Barber) Uma Shankar
(iii) Naik Ashok Kumar, who was injured and then succumbed to his injuries later on.
3. The Red Fort comes within the local jurisdiction of Police Station Kotwali. The Information was recorded by DD No.19A, Exhibit PW-15/B and Sub-Inspector (S.I.) Rajinder Singh (PW-137) rushed to the spot. SHO Roop Lal (PW-234) who was the Station House Officer of Kotwali police station also reached the spot and recorded the statement of one Capt. S.P. Patwardhan (PW-189) which was treated as the First Information Report.
This First Information Report refers to two persons in dark clothing and armed with AK 56/47 rifles having entered the Red Fort from the direction of Saleem Garh Gate/Yamuna Bridge. It is further stated that first they fired at the civilian Sentry Abdullah Thakur, secondly they came across rifleman (barber) Uma Shankar near Rajputana Rifles MT lines and fired at him due to which he died on the spot. It is further mentioned that lastly the intruders ran into the room in the unit lines close to the office complex and fired shots at Naik Ashok Kumar who was seriously injured. The FIR further mentions that thereafter they ran towards ASI Museum complex and fired in the direction of police guard room located inside the Museum. At this stage, the quick reaction team started firing at them. However, they escaped into the wooded area close to the ring road. The FIR also mentions that some fired/unfired ammunition was recovered from the spot.
4. The investigation started on this basis. During the examination of the spot, one live cartridge Exhibit PW-115/38 and number of cartridge cases (Exhibit PW-115/1-37) and (Exhibit PW-189/32-71), three magazines (Exhibit PW-189/1-3) of assault rifles, one of which had 28 live cartridges (Exhibit PW-189/4-31) were found and handed over to the police vide memo Exhibit PW-189/C and Exhibit PW-115/A. The empties of the cartridges fired by the Quick Reaction Team through the self loading rifles were deposited with ammunition store of Rajputana rifles and were handed over to the police later on vide memo Exhibit PW-131/C.
5. On the next day, i.e. on 23.12.2000, in the morning at about 8.10 a.m., the BBC news channel flashed the news that Lashkar-e-Toiba had claimed the responsibility for the shooting incident in question which was entered in the daily diary. On the same morning one AK56 assault rifle (Exhibit PW-62/1) lying near Vijay Ghat on the back side of Lal Qila was found abandoned. There were seven cartridges in the magazine. They were taken into police possession vide memo Exhibit PW-62/F. On the same morning in early hours extensive search went on of the back side of the Red Fort.
The police found a polythene bag containing some currency notes of different denominations and a piece of paper, a chit (Exhibit PW-183/B) on which a mobile No.9811278510 was mentioned. According to the prosecution, the intruders had escaped from that very spot by scaling down the rear side boundary wall of Red Fort using the pipe and further a small platform for landing from below the pipe. According to the prosecution, while jumping from the platform, the said polythene bag with cash and the paper slip fell out of the pocket of one of the intruders. The currency notes and the paper slip were seized vide memo Exhibit PW-183/A. It was on the basis of this cell phone number that the investigation agency started tracing the calls and collecting the details from which it transpired that between 7:40 p.m. and 7:42 p.m. on the night of the incident, two calls were made from this mobile number to telephone No.0194452918 which was the number of one BBC correspondent in Sri Nagar, Altaf Hussain (PW-39).
It was also found that three calls were made from same mobile number to telephone number 0113355751 which number was found to be that of BBC correspondent in Delhi, Ayanjit Singh 5(PW-41) between 9:25 p.m. and 9:33 p.m. The police found out that this mobile No.9811278510 was being used from two instruments whose IMEI number (identification number engraved on the mobile handset by the manufacturer) were obtained from mobile service provider ESSAR. These numbers were 445199440940240 and 449173405451240. The police could also find out that the person who had mobile connection card having No.9811278510 had another mobile cash card of ESSAR company with No.9811242154 and from this number large number of calls were found to have been made to telephone No.2720223 which was found to be the number of telephone installed at flat No.308A, DDA flats, Ghazipur, Delhi. This flat was registered in the name of one Farzana Farukhi. Similarly, number of calls were found to have been made from telephone No.2720223 to 9811242154.
It was also found that number of calls were made from cell No. 9811242154 to telephone No.6315904 which was a landline number installed at House No.18-C, Gaffur Nagar, Okhala where a computer centre in the name of `Knowledge Plus' was being run. The further investigation revealed that this said computer centre was being run by one Mohd. Arif @ Ashfaq (appellant herein) who was residing at the flat mentioned as flat No.308A, DDA Flats, Ghazipur where landline No.2720223 was installed. The police, therefore, could connect the said flat No.308A at Ghazipur and the computer Centre i.e. Knowledge Plus at Okhala and could also connect Mohd. Arif @ Ashfaq with these two places.
A surveillance was kept on these places for two days. During this period of surveillance, the computer centre had remained closed. On the basis of some secret information the premises at 308A, Ghazipur were raided on the night of 25-26.12.2000 and the appellant-accused Mohd. Arif @ Ashfaq was apprehended by the police while he was entering the flat. It was found during the investigation that Farzana Farukhi in whose name telephone No. 2720223 was registered was a divorcee sister-in-law of Mohd. Arif @ Ashfaq i.e. her sister was married to Mohd. Arif @ Ashfaq whose name was Rehmana Yusuf Farukhi. Mother of these two sisters, namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.
6. On his apprehension, Mohd. Arif @ Ashfaq (appellant) was cursorily searched by Inspector Ved Prakash (PW-173) during which one pistol (Exhibit PW-148/1) with six live rounds was found with him. They were sealed and taken into police custody. The appellant on his apprehension accepted his involvement in the incident inside the Lal Qila and gave further information to the policemen about the presence of his associate Abu Shamal @ Faizal as also the ammunitions at their hide out at House No.G-73 Batla House, Murari Road, Okhala, New Delhi.
7. He was immediately taken to that house by the raiding team which was headed by Inspector Mahesh Chandra Sharma (PW-229) and truly enough, in pursuance of the information given by him, the associate Abu Shamal was found to be there. The police party did not approach the flat immediately as the house was found to be locked. However, at about 5.15 a.m. in the morning one person had gone inside the house and closed the door from inside.
The police then asked him to open the door but instead of opening the door, he started firing from inside at the police party. The police party returned the firing with their fire arms and ultimately the person who was firing from inside died and was identified by appellant Mohd. Arif @ Ashfaq to be Abu Shamal @ Faisal. Substantial quantity of ammunition and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-229/1), two hand grenades one of which was kept in Bandolier (Exhibit PW-229/5), two magazines (Exhibit PW-229/2-3) one of which had 30 live cartridges. Some material for cleaning arms kept in a pouch (Exhibit PW-229/6) and Khakhi Colour Uniform (Exhibit PW-229/8) were recovered and seized by the police vide seizure Memo (Exhibit PW-229/D & E). A separate case was registered under Sections 186, 353 and 307, IPC (Indian Penal code, 1860) as also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of the Arms Act was registered at New Friends Colony in FIR No.630/2000.
That case ended up in preparation of a closure report because the accused had already died in the encounter with the police. After the above encounter, the accused appellant was brought back to his flat where the search had already been conducted by policemen. During that search one Ration card which was ultimately found to be forged (Exhibit PW-164/A), 8one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13/1), one cheque book of HDFC bank in the name of Mohd. Arif @ Ashfaq (appellant herein), one ATM card, one cheque book of the State Bank of India in the name of Rehmana Yusuf Farukhi, wife of accused appellant was found.
The said rifle was also taken into custody. One pay-in slip of Standard Chartered bank (Exhibit PW-173/K) showing deposit of Rs.5 lakhs in the account of M/s. Nazir & Sons was found. The said firm belonged to other accused Nazir Ahmad Qasid. This amount was deposited by the appellant may be through Hawala from the high ups of the Lashkar-e-Toiba. Mohd. Arif @ Ashfaq (appellant herein) was then brought back and there S.I. Harender Singh (PW-194) arrested Mohd. Arif @ Ashfaq (appellant herein). He searched him again when one Motorola mobile handset was recovered from his possession. The number of that instrument was found to be 9811278510. Its IMEI number which fixed the identification number of the hand set engraved on the instrument was 445199440940240. The cell phone was thereafter taken in possession.
8. In his interrogation by S.I. Harender Singh (PW-194), accused made a discovery statement which is recorded as Exhibit 148/E about one assault rifle which was thrown near Vijay Ghat behind the Red Fort after the incident by one of the associates (this was already recovered by the police) and one AK-56 rifle and some ammunition behind the rear wall of Red Fort by his another associate. In pursuance of that, he was taken to the backside of Red Fort and from there on his pointing out one AK-56 rifle (Exhibit PW-125/1), two magazines (Exhibit PW-125/2-3) having live cartridges, one bandolier and four hand grenades were recovered in the presence of the ballistic experts S.K. Chadha (PW-125) and N.B. Bardhan (PW-202). The same was taken to the police station.
The ballistic experts after defusing the hand grenades took the whole material in their possession vide Exhibit memo PW- 218/C. Another discovery statement (Exhibit PW-168/A) was made on 01.01.2001 through which he got recovered three hand grenades from the place near Jamia Millia Islamia University duly hidden. This spot was on the back side of his computer centre `Knowledge Plus'. They were seized vide seizure memo Exhibit PW-168/B.
A separate FIR was also recorded by FIR No.3/2001.9. The prosecution case, as it revealed on the basis of the investigation which followed, appears to be that the accused-appellant was a Pakistani national and eventually joined a terrorist organization called Lashker-e-Toiba. The accused-appellant took extensive training by using sophisticated arms like AK-56 rifles and hand grenades and had illegally entered the Indian territory along with arms and ammunition in August, 1999 and camped himself at Srinagar in the company of other members of Lashker-e-Toiba who were similarly motivated by that Organization.
The Organization had also decided to overawe India by their terrorist activities in different parts of India and to fulfill that object, the accused-appellant and his fellow terrorists had planned an attack on Army stationed inside Red Fort. According to the prosecution, the money required for this operation was collected by the accused-appellant through hawala channels, which was evident from the fact that during the investigation, he had led the police to one of the hawala dealers in Ballimaran area in Old Delhi.
One Sher Zaman Afghani and Saherullah were the said hawala dealers, but they could not be apprehended. The police, however, recovered Rs.2 lakhs from the shop which was left open. From the information given by the accused-appellant, the police ultimately caught hold of more persons, which included his Indian wife Rehmana Yusuf Farukhi. The other accused persons were Nazir Ahmad Qasid, his son Farooq Ahmad Qasid, Babbar Mohsin Baghwala, Matloob Alam, Sadakat Ali, Shahanshah Alam, Devender Singh, Rajeev Kumar Malhotra and Mool Chand Sharma. Excepting the accused-appellant, nobody is before us, as few of them were acquitted by the trial Court and others by the appellate Court. It is significant enough that there is no appeal against the acquittal by the High Court. There were number of other persons according to the prosecution who were the co-conspirator with the accused-appellant. However, they were not brought to book by the police.
They were declared as proclaimed offenders. There is a separate charge-sheet filed 11against those proclaimed offenders also. 10. In order to establish an Indian identity for himself, the accused-appellant had married Rehmana Yusuf Farukhi who was also joined as an accused. According to the prosecution, she had full knowledge about the accused-appellant being a Pakistani national and his nefarious design of carrying out terrorist activities. Significantly enough, she had married only 14 days prior to the shoot-out incident i.e. on 8.12.2000. She was of course, paid substantial amounts from time to time by the accused-appellant prior to her marrying him and this amount was deposited in her bank account No. 5817 with the State Bank of India.
The prosecution alleged that the accused-appellant was in touch with Rehmana Yusuf Farukhi even prior to the marriage. One other accused, Sadakat Ali was arrested for having given on rent his property in Gaffur Nagar to the accused-appellant for running a computer centre in the name of `Knowledge Plus'. Sadakat Ali is said to have been fully aware of the design of the accused-appellant and he had knowingly joined hands with the accused-appellant and had not informed the police that he had let out his premises to the accused-appellant. Huge money used to be received by the accused-appellant which he used to deposit in the accounts of accused Farooq Ahmed Qasid and Nazir Ahmad Qasid in Standard Chartered Grindlays Bank's branch at Srinagar and after withdrawing money so deposited, the same used to be distributed amongst their fellow terrorists for supporting the terrorist activities.
According to the prosecution, huge amount of money was deposited by the accused-appellant in the two bank accounts of Nazir & Sons and Farooq Ahmed Qasid with Standard Chartered Grindlays Bank's branch at Connaught Place, New Delhi. The police was able to retrieve one deposit receipt showing deposit of five lakhs of rupees in November, 2000 in the account of Nazir & Sons. The said receipt was recovered from the flat of the accused-appellant after he was apprehended on the night of 25/26.12.2000.11. Some other accused of Indian origin had also helped the accused-appellant, they being Devender Singh, Shahanshah Alam and Rajeev Kumar Malhotra.
They got a forged learner's driving license No. 9091 (Exhibit PW-13/C) which was purported to have been issued by Delhi Transport Authority's office at Sarai Kale Khan, wherein a false residential address was shown as B-17, Jangpura. On that basis, the accused-appellant also got a permanent driving license (Exhibit PW-13/1) in his name from Ghaziabad Transport Authority. The accused-appellant, with the cooperation of these three accused persons, had submitted a photocopy of a ration card, again with the forged residential address as 102, Kaila Bhatta, Ghaziabad.
This very driving license was then used by the accused-appellant for opening a bank account with HDFC Bank in New Friends Colony, New Delhi, wherein he had shown his permanent address as 102, Kaila Bhatta, Ghaziabad and mailing address as 18, Gaffur Nagar, Okhla, New Delhi. Needless to mention that even these two were not his actual addresses. These were utilized by him for stashing the money that he received from the foreign countries.
Accused Babar Mohsin provided shelter to the accused-appellant in his house in Delhi in February-March, 2000, so that the accused-appellant could prepare a base in Delhi for carrying out terrorist acts in Delhi. This Babar Mohsin had also accompanied the accused-appellant on his motorcycle to different parts of Delhi in order to show various places of importance to the accused-appellant, which could be targeted for a terrorist attack.
The police was also able to retrieve a letter (Exhibit PW-10/C) addressed to Babar Mohsin, thanking him for the help extended by him to the accused-appellant during his visit to Delhi. This letter was written from Srinagar. This letter was seized by the police from the dickey of the motorcycle belonging to Babar Mohsin on 07.01.2001. One other accused Matloob Alam was having a ration shop in Okhla while accused Mool Chand Sharma was the area Inspector of Food & Supply Department. Both these accused persons had helped the accused-appellant in getting a ration card (Exhibit PW-164/A) which contained false information.
Accused Matloob Alam was charged for distributing number of fake ration cards by taking bribe from the persons to whom the cards were issued. A separate FIR being FIR No. 65/2001 was registered against Matloob Alam at Police Station New Friends Colony, New Delhi. In fact, the ration card mentioned earlier was prepared by the accused Matloob Alam and the handwriting expert had given a clear opinion that the said ration card was in the hands of Matloob Alam himself. The prosecution, therefore, proceeded against 11 accused persons, in all, who were charge-sheeted on the ground that they had all conspired together to launch an attack on the Army establishment inside the Red Fort so as to pressurize the Government of India to yield to the demand of the militants for vacating Kashmir
12. The police got examined all the arms and ammunition from the ballistic expert N.B. Bardhan (PW-202), Senior Scientific Officer-I, CFSL, New Delhi. Needless to mention that the said witness had found that the cartridges of the gun had actually been fired from AK-56 rifles which was got recovered by the accused-appellant from the backside of Red Fort and Vijay Ghat. The weapons were found by the witness to be in working order. The hand grenades recovered at the instance of the accused-appellant from Jamia Milia Islamia University were also examined and found to be live ones and these were defined as "explosive substance".
The pistol and the cartridges recovered from the possession of the accused-appellant on his apprehension were also got examined by 15another ballistic expert Shri K.C. Varshney (PW-211), who vide his report Exhibit PW-211/A, found the said pistol to be in working order and the cartridges to be live ones and being capable of being fired from the said pistol. The police also found that the eleven empties of fired cartridges from Self Loading Rifles (SLRs) of the Army men were actually fired from SLRs made by Ordinance Factory at Kirki, India and that they could not be loaded in either of the two Assault Rifles recovered by the police.13. This was, in short, a conspiracy and after obtaining the necessary sanctions, the police filed a charge-sheet against 11 accused persons.
All the cases were committed to the Court of Sessions and though they were registered as separate Sessions cases, they were clubbed by the trial Court and the case arising out of FIR No. 688/2000 was treated as the main case. We do not propose to load this judgment by quoting the charges framed against all the accused persons. Suffice it to say that they were charged for the offence punishable under Sections 121, 121A and 120-B IPC read with Section 302, IPC . The accused-appellant was individually charged for the offence punishable under Section 120-B, IPC on various counts as also for the offence punishable under Section 3 of the Arms Act read with Sections 25 and 27 of the Arms Act as also Sections 4 and 5 of the Explosive Substances Act. Lastly, the accused-appellant was 16also charged for the offence punishable under Section 14 of the Foreigners Act for illegally entering into India without valid documents.
14. The prosecution examined as many as 235 witnesses and exhibited large number of documents. Accused Rehmana Yusuf Farukhi alone adduced evidence in defence and examined her own mother and tried to show that they did not know the accused-appellant was a militant and that the money in the bank account of Rehmana Yusuf Farukhi was her own money and not given by the accused-appellant.15.
The accused-appellant was convicted for the offence punishable under Sections120-B, 121 and 121-A, IPC, Sections 186/353/120-B, IPC, Section 120-B, IPC read with Section 302, IPC, Sections 468/471/474, IPC and also under Section 420 read with Section 120-B, IPC. The accused-appellant was also held guilty for the offence punishable under Section 25 of the Arms Act, Section 4 of the Explosive Substances Act and Section 14 of the Foreigners Act. We are not concerned with the convictions of accused Nazir Ahmad Qasid, Farooq Ahmed Qasid, Rehmana Yusuf Farukhi, Babar Mohsin, Sadakat Ali and Matloob Alam. Barring the above accused, all the other accused persons were acquitted by the trial Court. The accused-appellant was awarded death sentence for his convictions under Section 121, IPC as also under Section 302 read with Section 120-B, IPC.
He was awarded rigorous imprisonment for 10 years for his 17conviction under Section 121-A, IPC. He was awarded sentence of life imprisonment for his conviction under Section 4 of the Explosive Substances Act, while on other counts, he was awarded rigorous imprisonment for 7 years for the conviction under Sections 468/471/474/420, IPC. He was awarded rigorous imprisonment for 3 years for his conviction under Section 25 of the Arms Act. He was awarded 2 years' rigorous imprisonment for his conviction under Section 353, IPC and 3 months' rigorous imprisonment for his conviction under Section 186, IPC . He was slapped with fines also with defaults stipulation.
The sentences were, however, ordered to run concurrently. The other accused Rehmana Yusuf Farukhi, Babar Mohsin, Nazir Ahmad Qasid, Farooq Ahmed Qasid, Matloob Alam and Sadakat Ali were awarded various convictions; however, their appeal was allowed by the High Court. That leaves us only with the appeal filed by the present appellant. The High Court also confirmed the death sentence awarded by the trial Court to Mohd. Arif @ Ashfaq (accused-appellant). The State had also filed one appeal challenging the acquittal of accused Rehmana Yusuf Farukhi, Sadakat Ali and Babar Mohsin for the serious offence of hatching conspiracy with co-accused Mohd. Arif @ Ashfaq, Farooq Ahmed Qasid and Nazir Ahmad Qasid to wage war against the Government of India, so also an appeal was filed against the accused Farooq Ahmed Qasid and Nazir Ahmad Qasid for enhanced punishment of death penalty in place of the sentence 18of life imprisonment awarded to them by the trial Court.
The State, however, did not file any appeal against the four acquitted accused persons. The High Court, after examination in details, confirmed the conviction and the sentence only of the present appellant, while all the other appeals filed by other accused persons were allowed and they were acquitted. The appeals filed by the State for enhancement, as also against the acquittal of other accused persons from the other charges, were dismissed by the High Court. That is how, we are left with the appeal of Mohd. Arif @ Ashfaq, the present appellant herein.16. The first contention raised by Ms. Kamini Jaiswal, learned counsel appearing on behalf of the respondent was that no such incident of outsiders going into the Red Fort and shooting ever happened. The learned counsel further argued that the said shooting was as a result of the brawl between the Army men themselves.
In order to buttress her argument, the learned counsel further said that even the police was not permitted to enter the Red Fort initially and though an enquiry was held regarding the incident, the outcome of such enquiry has never been declared. The learned counsel attacked the evidence of Capt. S.P. Patwardhan (PW-189) on the ground that the report made by him which was registered as FIR on 22.12.2000 was itself suspicious, as it was clearly hearsay. The learned counsel further relied on the evidence of 19Head Constable Virender Kumar (PW-15) who was a duty officer at Kotwali Police Station and claimed that he received the information at about 9.25 pm which he had recorded as DD No. 19A. It was pointed out that the said DD Entry was handed over to S.I. Rajinder Singh (PW-137) and Constable Jitender Singh (PW-54) was directed to accompany him.
It was also pointed out that SHO Roop Lal (PW-234) was informed about the incident and he handed over to S.I. Rajinder Singh (PW-137) the report at 11.30 pm and it was on that basis that the FIR No. 688/2000 was registered at about 12.20 am on 23.12.2000. The learned counsel then relied upon the report in the newspaper Hindustan Times in which it was stated that the police intelligence was not ruling out the possibility of shoot out being insiders' job. The learned counsel also referred to the evidence of Constable Jitender Singh (PW-54), Naik Suresh Kumar (PW-122), Major Manish Nagpal (PW-126), Mahesh Chand (PW-128), Retd. Subedar D.N. Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and S.I. Rajinder Singh (PW-137), as also the evidence of Major D.K. Singh (PW-144). It was tried to be argued that there were inter se contradictions in the evidence of all the witnesses and the whole story of some intruders going into the Red Fort and shooting was nothing but a myth.
It was also suggested by the learned counsel that there was serious dispute in the versions regarding the ammunition used by the intruders and ammunition used by the Army personnel. Fault was found with the timing of registration of FIR No. 20688/2000. The learned counsel also stated that the prosecution had not brought on record any register which is maintained for recording the entry of any vehicle in the Red Fort.
The learned counsel further suggested a contradiction in the evidence of Hawaldar Dalbir Singh (PW-134) and the statement of Retd. Subedar D.N. Singh (PW-131) regarding as to who took the rifle from Hawaldar Dalbir Singh (PW-134), whether it was Major D.K. Singh (PW-144) or Major Manish Nagpal (PW-126). About the timings of various police officers reaching including that of SHO Roop Lal (PW-234), the learned counsel pointed out that there were some deficiencies.17. Before we appreciate these features of the evidence and the contentions raised by the learned counsel for the defence, we must first clarify that this Court ordinarily does not go into the appreciation of evidence, particularly, where there are concurrent findings of facts.
We have very closely examined both the judgments below and found that there is a thorough discussion as regards the evidence, oral as well as documentary, and it was only after a deep consideration of such evidence that the trial and the appellate Courts have come to the concurrent finding against the appellant. In order to see as to whether the acquittal of other accused persons can be linked to the verdict against the appellant, we have examined even the other evidence which did not necessarily relate to the criminal activities committed by the appellant. Inspite of the fact that there has been a concurrent verdict against this appellant, still we have examined the oral and documentary evidence not only relating to the appellant, but also to the other accused persons. As a result, we have come to the conclusion that the trial and the appellate Courts have fully considered the oral and documentary evidence for coming to the conclusions that they did.
In view of the concurrent findings, the scope to interfere on the basis of some insignificant contradictions or some microscopic deficiencies would be extremely limited. All the same, this being a death sentence matter, we ourselves have examined the evidence.18. From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear opinion that what took place on the said night on 22.12.2000 could not be just set aside as an internal brawl between the Army men themselves. The suggestion is absolutely wild. We find from the evidence that none of these witnesses who have been named above and who were the direct witnesses to the firing incident have been given this suggestion in their cross-examination that it was merely a brawl between the Army men.
That apart there are some circumstances which completely belie the theory of internal brawl. It would have to be remembered that a civilian Sentry Abdullah Thakur was the first to lose his life. There is nothing to suggest 22that the said Sentry Abdullah Thakur or the second casualty Rifleman (Barber) Uma Shankar, as also Naik Ashok Kumar had developed any enmity with anybody in the battalion. Further, if this was a brawl between the Army men, there was no reason why Abdullah Thakur was shot at and killed. We also do not find any reason to suspect the version of Major Manish Nagpal (PW-126) who himself claimed to have fired six rounds in the direction of Ring Road after taking a self loading rifle from Hawaldar Dalbir Singh (PW-134). In fact, there is no contradiction in his version and the version of Hawaldar Dalbir Singh (PW-134). The version of Major Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major D.K. Singh (PW-144) as also the evidence of Retd. Subedar D.N. Singh (PW-131).
Even Major D.K. Singh (PW-144) had fired alongwith Major Manish Nagpal (PW-126) and they had fired, in all, rounds, the empties of which were given by these two officers to Retd. Subedar D.N. Singh (PW-131). Ultimately, these empties were produced before the civil police officers and were taken into possession vide Exhibit PW-131/A. This version is also corroborated by Hawaldar Dalbir Singh (PW-134). We have carefully seen the evidence of all these witnesses mentioned above and found it trustworthy. It must be mentioned that at 9.23 pm, a call was made to the Police Control Room (PCR) by Major Manish Nagpal (PW-126) suggesting that some persons had run away after firing inside the Red Fort and that they had gone towards the Ring Road.
This was proved 23by the lady Constable Harvir Kaur, PCR (PW-77) and the concerned document is Exhibit PW-77/A which lends full support to the version and suggests that there was an incident of shooting in the Red Fort. DD Entry No. 19A dated 22.12.2000 made at Police Station Kotwali supports this version of lady Constable Harvir Kaur (PW-77), which suggests that she had flashed a wireless message about some persons having fled towards the Ring Road after resorting to firing inside the Red Fort. The evidence of Head Constable Virender Kumar (PW-15) is also there to prove the report in this regard vide Exhibit PW-15/B. It must be remembered that Police Control Room had received the calls of similar nature at 9.47 pm and two calls at 9.50 pm vide Exhibits PW-42/A, PW-95/A and PW-43/A, which support the version of the prosecution about the incident.
The evidence of Constable Indu Bala, PCR (PW-43) about having received a telephone call from one Karan Mohan, the evidence of Col. A. Mohan (PW-51) that he was informed by the Commanding Officer, 7th Rajputana, Delhi that some civilians had entered Red Fort and the evidence of Constable Harvir Kaur, PCR (PW-77) that she received information from Major Manish Nagpal (PW-126) from telephone No. 3278234 about some persons having fled, as also the evidence of Head Constable Harbans, PCR (PW-95) that he had received a telephone call from Col. Mohan (PW-51) by telephone No. 5693227 stating that his Jawan posted at Red Fort was attacked, supports the version that there was incident of shoot out and it could not be merely 24dismissed as an internal brawl.
This is apart from the evidence of other police witnesses like SHO Roop Lal (PW-234) who had reached the spot almost immediately after receiving the wireless message and who confirmed the presence of S.I. Rajinder Singh (PW-137) and Capt. S.P. Patwardhan (PW-189) on the spot. The senior officers of the police had also reached the spot and their evidence only confirms the dastardly incident of shoot out. There is enormous documentary evidence in shape of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW-152/B, Exhibit PW-152/F and DD No. 22A, which confirms that such incident had happened. There is other piece of voluminous documentary evidence about seizure of blood sample (Exhibit PW-123/B), seizure from the spots (Exhibit PW-122/B), seizure of blood stained clothes (Exhibit PW-114/A), Exhibit PW-123/A,
Exhibit PW-122/A, seizure of magazine, live cartridges and empties (Exhibit PW-189/C), Exhibit PW-115/A to 37 (37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope and cap (Exhibit PW-183/D), seizure of various articles from Red Fort (Exhibit PW-196/A) and Exhibits PW-230/A & 230/B etc. to suggest that the incident as, suggested by prosecution, did take place. It is also to be seen that the post mortem was conducted on the three bodies by Shri K. L. Sharma (PW-187). This witness has opined that all the deceased had bullet injuries by sophisticated fire arms and the shots were filed at them from a distant range.
It is significant that the doctor was not cross- 25examined to the effect that the injury could have been caused by any weapon which was available with the Army and not with the AK 56 rifles. We are, therefore, not at all impressed by the argument that such incident was nothing but a white wash given by Army to hide the incident of internal brawl. We must reject the whole argument as too ambitious. We, therefore, hold that the incident of shoot out did take place in which three persons lost their lives.19. Ms. Jaiswal then argued that though the premises were thoroughly searched as claimed by Sub. Ashok Kumar (PW-115) he did not find a fired bullet. She relied on the evidence of Hawaldar Dalbir Singh (PW-134) who also claimed that the premises were being searched all through the night. Similarly, she referred to the evidence of S.I. Rajinder Singh (PW-137), Maj. D.K. Singh (PW-144), Capt. S.P. Patwardhan (PW-189), and S.I. Naresh Kumar (PW-217) and Inspector Hawa Singh (PW-228).
According to her, all these witnesses had suggested that the search was going on practically all through the night and that Capt. Patwardhan (PW-189) had also ordered the search outside. The argument is clearly incorrect. Merely because all these witnesses have admitted that there was search going on for the whole night, it does not mean that the incident did not take place. We have already pointed out that number of incriminating articles were found, the most important of the same being the 26empties of the bullets fired by the intruders.
It is very significant that the prosecution has been able to connect the bullets with the arms seized by them.20. One of the two rifles was found near Vijay Ghat from the bushes while other has been recovered at the instance of appellant on 26th December, 2000. The prosecution has examined three witnesses who were the ballistic experts. They were N.B. Bardhan (PW-202), A.Dey (PW-206), K.C. Varshney (PW-211). N.B. Bardhan (PW-202) has specifically stated that both the rifles were used in the sense that they were fired.
A. Dey (PW-206) had the occasion to inspect the rifle recovered from Batla House as Exhibit PW-206/B. The ballistic experts report was proved by N.B. Bardhan (PW-202) as Exhibit 202/A. He clearly opined that the empties found inside the Red Fort had been fired from the rifles (Exhibit PW-125/1) and (Exhibit PW-62/1). He clearly deposed that he examined 39 sealed parcels sent by SHO, Police Station Kotwali.
Out of these parcels, according to the witness, parcel No.34 was containing AK 56 assault rifle so also parcel No.36 in same parcel, sub-parcel No.20 contained another assault rifle. He further confirmed in para (iii) of his opinion that these were 7.62 mm assault rifles and the cartridges contained in bearing mark C-1 in parcel No.3 which were marked as C-49, C-52,C-56,C-58, C-64, C-71 contained in parcel No.19 as also 21 7.62 mm 27assault rifle cartridge cases marked as C-72,C-74,C-75 to C-80,C-82 to C-84 and C-86, C-89,C-91, C-94 to C-96, C-98, C-102, C-106 to C-108 contained in parcel No.19A had been fired from 7.62 mm AK assault rifle marked as W/1 which was recovered from back side of Lal Quila on the disclosure statement made by the appellant.
He further opined in para (iv) of his opinion that the cartridge cases marked as C-2 contained in parcel No.4, thirty four fired 7.62 mm assault rifle cartridge cases marked as C-32 to C-48, C-50, C-51, C-53 to C-55, C-57, C-59 to C-63 and C-65 to C-70 contained in parcel No.19, as also sixteen 7.62 mm assault rifle cartridge cases marked as C-73, C-77, C-81, C-85, C-87, C-88, C-90, C-92, C-93, C-97, C-99, C-100, C-101, C-103 to C-105 contained in parcel no.19A were fired from 7.62 mm assault rifle AK-56 marked as W/2 rifle recovered from Vijay Ghat. The report of the ballistic experts was proved as Exhibit PW-202/C. He duly proved and identified the cartridges which were test fired in the laboratory. He also proved and identified the rifles examined by him and the magazines along with the other live cartridges found in the same. There was hardly any cross-examination worth the name of this witness and, therefore, it is clearly established that the cartridges cases found inside the Red Fort were fired from the two rifles which were found outside the Red Fort.
This witness had also examined 11 empties of the self-loading rifles used by the army men firing towards intruders and had clearly opined that those empties could not have been loaded in AK-56 28rifles examined by him. We must note that one of these rifles i.e. Exhibit PW-62/1 was recovered on the discovery made by the appellant. We shall come to the merits of that discovery in the latter part of our judgment. However, at this stage, it is sufficient to note that the prosecution had thoroughly proved the nexus between the cartridge cases which were found inside the Red Fort and the incident.
This nexus is extremely important as while the guns were found outside the Red Fort the fire empties were found inside. This clearly suggests that the incident of firing took place inside the Red Fort while guns were abandoned by the intruders outside the Red Fort. This witness also examined the contents of parcel No.34, namely, one rifle two magazines, live cartridge, knife and a Bandolier. This was again an assault rifle of 7.62 mm which we have already considered earlier. However, along with the same, as per the discovery memorandum a bandolier (Exhibit PW-202/3) was also found. The contents of the Bandolier were in parcel No.35.
It contained four hand grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit PW-50/5 to 8. Very significantly four detonators had a slip affixed with the help of a tag and it was written in Urdu Khabardar. Grenade firing ke liye tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for firing. Pin should be taken out only when it is to be thrown). The existence of these bandoliers and the grenades and their recovery goes a long way to prove that the theory propounded by the defence that the incident never 29took place inside the Red Fort at the instance of the intruders and it was an internal affair of the Army men inside has to be rejected. In order to complete the narration, we must also refer to the evidence of Shri A. Dey who had examined the rifle found at Batla House during the encounter in which one Abu Shamal was killed. That recovery is not seriously disputed by Ms. Jaiswal.
21. We have the evidence of Subedar Ashok Kumar (PW-115) about the recovery of empties cartridges and one live cartridge from the Red Fort so also the evidence of Hawaldar Ramesh Kakre (PW-116) about the empty cartridges being found near sentry post where Abudullah Thakur was killed. One live cartridge also was recovered from there. He further deposed about the two empty cartridges found near M.T. Park where Uma Shankar was killed. He deposed that these empties were found near training store while seven empties were found near museum and the same was handed over to Subedar Ashok Kumar (PW-115). Similar is the evidence of S.P. Patwardhan (PW-189) about the place from where all this spent ammunition was recovered. SHO Roop Lal (PW-234) and Naik Suresh Kumar (PW-122) deposed about the places wherefrom the cartridge cases and the magazines were found from inside the Red Fort.
All this supports the prosecution theory that the ghastly incident of firing did take place at the instance of some outsiders inside the Red Fort. 3022. This takes us to another contention of Ms. Jaiswal that in fact nothing was found behind the Red Fort on the night of 23.12.2000. The learned Solicitor General, Shri Subramanium placed a very heavy reliance on the recoveries made in the same night or early morning of next day i.e. 23.12.2000. The recoveries of that day are extremely important. Ms. Jaiswal invited our attention in this behalf to the evidence of S.I. Sanjay Kumar (PW-183) who claimed that in the morning of 23.12.2000 during the search of the backside of the wall of the Red Fort abutting to the ring road he found some currency worth Rs.1415/- and a slip contained in the polythene bag.
It was a short slip on which a mobile number was written being 9811278510. According to witness S.I. Sanjay Kumar (PW-183), SHO Roop Lal (PW-234) was called at the place and it was SHO Roop Lal (PW-234) who pasted the telephone number slip on a separate paper. There was currency and both these articles were seized by the police. This polythene bag was a transparent bag. Besides the evidence of PW-183, SI Sanjay Kumar, we have the evidence of S.I. Naresh Kumar (PW-217) and SHO Roop Lal (PW-234). The amount was separately kept vide Exhibit 183/A while the slip was identified as Exhibit PW-183/C. We have seen the photographs of the polythene bag and the currency as also the slip which were also proved. Ms. Jaiswal attacked this recovery and the seizure thereof vehemently.
According to her this was a figment of imagination by the investigating agency and there was no question of any 31such recovery much less in the wee hours of 23.12.2000 at about 5-6 a.m. She pointed out that the two witnesses S.I. Sanjay Kumar (PW-183) and S.I. Naresh Kumar (PW-217) were clearly lying. We have examined the evidence of all the three witnesses particularly in this behalf and we find the evidence to be thoroughly reliable. Ms. Jaiswal could not bring to our notice any material in the cross examination of these witnesses so as to render the evidence uncredit worthy. Some efforts were also made by relying on the evidence of S.K.Chadha (PW-125) that though he was a member of the team, he reached the spot from where the recovery was made at 10 a.m. on 23.12.2000.
We fail to follow the significance of this admission. It is not as if all the officers must remain at one and the same place if they are the members of a particular investigation team. It may be that S. K. Chadha might have reached the spot at 10 O'clock but that does not mean recovery team consisting of other members did not effect recovery of the polythene bag containing currency and the slip. Ms. Jaiswal also urged that the premises were being searched thoroughly with the help of dog squad and the search light and that it was not possible that the search team would miss to notice the polythene bag and the currency and the slip lying in it.
The argument is only mentioned for being rejected. What the investigating team would be looking for are not the polythene bag and the small paper but the weapons and the men who handled those weapons. A small transparent polythene bag could have easily been 32missed earlier or may not have attracted the attention of the investigating agency. We do not find anything to suspect the claim that the recovery was made at about 5-6 a.m.
We must note that this was the longest night when the sun rise would also be late. Under such circumstances, in that dark night if the investigating team, after the microscopic search, took a few ours in recovering the small apparently insignificant polythene bag, it is not unnatural. They could not be expected to find polythene bag instantaneously or immediately. Much time must have been taken in first searching inside the Red Fort. Therefore, if the polythene bag was found at about 5-6 a.m. as per the claim of the prosecution agency, and not earlier, there is nothing uncreditworthy in the claim.
We are, therefore, convinced that the polythene bag and the slip mentioning the cell phone number were actually found at the spot. Ms. Jaiswal tried to find some chinks in the armour by suggesting that S.I. Sanjay Kumar's statement was contrary to the statement of S.I. Naresh Kumar (PW-217). We do not find any discrepancy between the two statements. Ms. Jaiswal also referred to the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that recovery was made by him at about 9 a.m. in the morning. What the witness meant was that it was he who came in the possession of the items at 9 a.m. There is nothing very significant in that assertion. The evidence of SHO Roop Lal (PW-234) was also referred to who claimed that after the polythene bag was produced before him which contained currency and paper slip, he sealed currency in the same polythene with the help of cloth and sealed under parcel given Exhibit No.24.
There is nothing to dis-believe this claim after all SHO Roop Lal (PW-234) was the senior most investigating officer and there is nothing insignificant if S.I. Sanjay Kumar (PW-183) finding the polythene bag handed over the same to SHO Roop Lal (PW-234). A specific step has been taken by S.I. Sanjay Kumar (PW-183) by getting the said bag photographed. We have seen the photographs also. It is true that no photograph was taken of the polythene bag containing currency note and the slip mentioning the telephone number. They appear to be in separate photographs and it is quite understandable as immediately after the finding of the polythene bag it must have been handled by S.I. Sanjay Kumar (PW-183).
It is only after finding the slip and the telephone number mentioned thereon that by way of abundant caution the photographs were taken. Anxiety was to show the slip and the fact that there was a telephone number written on the slip. Ms. Jaiswal then argued that Hawa Singh (PW-228) had stated that he was told about the slip only in the evening though he joined the investigation at 10.30 a.m. We do not find anything substantial in this argument.
Ms. Jaiswal further argued that there is contradiction in S.I. Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharma's (PW-229) statement as to who had recovered the currency and slip and that there was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183), S.K. Chadha (PW-125) and Inspector Mohan Chand Sharma (PW-229). Further, she tried to say that there was contradiction in the statement of S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW-217) on the question as to whether currency and slip was taken inside the Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was called on the spot of recovery. She also raised objections about the photographs that they were not taken in `as is where is position'.
We have already applied our mind to this aspect and we are of the clear opinion that the objections raised by the defence are absolutely insignificant. What is material is the polythene bag being found. The police could not have created this polythene bag containing currency and slip with a number mentioned on it. There was no question of any false evidence being created at that point of time which was hardly a few hours after the shootout. It is true that the photographs of the polythene bag are not and could be on `as is where is basis'. We have already given the reason thereof.
We have no doubts in our mind and we confirm the finding of the trial Court and the appellate Court that the said polythene bag containing the currency notes and the slip on which the cell phone number was mentioned, was actually found on the spot which spot was abutting the backside wall of the Red Fort. It has to be borne in mind that a major incident of shootout had occurred wherein three lives were lost. The attack was on the Red Fort which has emotional and historical importance in the Indian minds.
Large investigation team was busy investigating the whole affair and, therefore, the police could not have produced out of the thin air a small polythene bag containing currency and the slip. The spot where it was found is well described and was on the escape route of the intruders. That wall from inside the Red Fort has hardly any height though it is of about 15 to 20 feet from the ground on the other side. We have seen the proved photograph which suggests that from that spot one can easily land on the extended pipe and from that pipe to the small platform and from there to the ground. The polythene bag was found near this spot. Therefore, we accept the finding by the trial Court and the appellate Court that this polythene bag must have slipped from a person who scaled down to the ground. At the beginning of the debate it was made out as if the said wall was insurmountable and that nobody could have jumped from the height of about 50-60 feet. Further on the close look at the evidence, the photographs the hollowness of the claim of the defence was writ large.
23. There is one more significant circumstance to suggest that the polythene bag must have been found where it was claimed to have been found by the investigating agency i.e. the finding of AK-56 rifle from a nearby spot in the bushes. We will consider the merits of that discovery which was at the instance of the appellant in the latter part of our judgment. Suffice it to say at this stage that the polythene bag was found 36in the reasonable proximity of the spot from where AK-56 rifle was recovered. 24. Barely within 4-5 hours of the finding out the chit and the currency notes, the investigating agency found one AK-56 rifle with seven live cartridges from a place near Vijay Ghat in the Ring Road behind the Red Fort. A DD entry to that effect vide Exhibit PW-81/A was made. There is evidence in the shape of Exhibit PW 78A proved by PW-78 Head Constable Narender Singh which is a Police Control Room Form.
The prosecution also examined Head Constable Upender Singh (PW-89). The evidence of Head Constable Satbir Singh (PW-81) proves the information having been given to the PCR. There was a sketch of recovery Naksha Mauka Baramadgi, seizure of rifle, magazine and the live cartridges from Vijay Ghat is evidenced in Exhibit PW-62/B and also Exhibit 84/XIV. While dealing with the evidence of the ballistic expert we have already shown the connection between the empty cartridges and this rifle. This rifle was marked as W/1 in the ballistic experts report and was identified as Exhibit PW-125/1.
There is nothing to belie this discovery which is well supported by the evidence of Head Constable Narender Singh (PW-78), Head Constable Satbir Singh (PW-81) and Head Constable Upender Singh (PW-89). In fact Head Constable Upender Singh was the one who had found the said rifle. Other relevant witness who corroborated this version is 37Constable Ranbir Singh (PW-35) who had made the DD entry and had received the message from police Control Room. The other witnesses are SI Ram Chander (PW-62) who presided over the recovery and SHO Roop Lal (PW-234) who was also present at the time of recovery and saw the rifle. The other witnesses, namely, SI Sanjay Kumar (PW-183) and SI Naresh Kumar (PW-217) have provided the corroborating evidence to this recovery. The whole recovery is proved by the prosecution.
25. However, even before that the investigating agency started investigation about the cell number which was found written in the slip which was found in the morning at about 5-6 a.m. this cell number was to provide a ray of light to the investigating agency which had no clue whatsoever till then about the perpetrators of the crime. Ultimately, the investigating agency on the basis of that number being 9811278510 not only unearthed the conspiracy but also reached the main players including the present appellant.
26. The investigation suggests that the said mobile number slip was assigned to Inspector Mohan Chand Sharma (PW-229). This was a mobile number on the basis of the cash card. At the relevant point of time, the cash card implied a SIM card, a SIM card loaded with prepaid value and such SIM card were readily available in the open market. There was no necessity of registering with the service provide for obtaining a mobile 38connection through cash card. All that was required was activation by the service provider without which the cash card or the SIM card as the case may be could not be used.
27. It has come in the evidence that the active mobile phone has two components i.e. the mobile instrument and the SIM card. Every mobile instrument has a unique identification number, namely, Instrument Manufactured Equipment Identity, for short, IMEI number. Such SIM card could be provided by the service providers either with cash card or post paid card to the subscriber and once this SIM card is activated the number is generated which is commonly known as mobile number. The mobile service is operated through a main server computer called mobile switching centre which handles and records each and every movement of an active mobile phone like day and time of the call, duration of the call, calling and the called number, location of the subscriber during active call and the unique IMEI number of the instrument used by the subscriber during an active call. This mobile switching centre manages all this through various sub-systems or sub-stations and finally with the help of telephone towers.
These towers are actually Base Trans-receiver Stations also known as BTS. Such BTS covers a set of cells each of them identified by a unique cell ID. A mobile continuously selects a cell and exchanges data and signaling traffic with the corresponding BTC. 39Therefore, through a cell ID the location of the active mobile instrument can be approximated.28. As per the evidence of Inspector Mohan Chand Sharma (PW-229) he collected the call details of the said mobile number which was received in a computer installed in his office at Lodhi Road. He found that mobile phone number 9811278510 was constantly used from Zakir Nagar and at that time the IMEI number of the cell phone instrument used was 445199440940240.
It was found that the said number was also used for making calls to Pakistan. However, from 11.12.2000, the IMEI number of the mobile phone No.9811278510 was changed to IMEI No.449173405451240. It transpired from the evidence that this IMEI number that the mobile phone number 9811278510 with the changed IMEI number had also made calls to landlines which were discovered to be belonging to BBC, S
