# MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL - **Citation:** [2014] 14 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 2014 - **Case number:** CriminalAppealNos.1240-1241 of2010 - **Bench:** A. K. Patnaik, Fakkir Mohammed Ibrahim Kalifulla - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-jamiludin-nasir-v-state-of-west-bengal-29725 - **Pages:** 179 ## Headnote Penal Code, 1 B60: SS. 121A, 121, 122, 302, 307, 333, 467, 471and46B rlws.1208-ArmsAct, 1959-ss. 25(1A), 27(2), and27(3)- C Waging of war against State - Pre planned attack on police force at American Centre by accused-A 1 and AB along with the absconding accused and other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians as also damage to D public property- Conviction of A 1, AB and others u/ss. 121A, 121, 122andss. 302, 307, 333, 467, 471and46Brlws.1208 and ulss. 25(1A), 27(2), and 27(3) oftheArmsActrlw s. 1208 - Imposition of death sentence for the said offences - Conviction of accused persons on the basis of confession of E A1, eye witness account of witnesses, oral evidence of prosecution witnesses and various exhibits - As regards accused-A 1 and AB, order upheld by the High Court-Appeal before this Court by A 1 and AB - Held: Factors established prove that A 1-main conspirator of the attack and ABF mastermind of the attack, along with other accused waged a war or attempted to wage a war against the Government of India, for which they all conspired together and committed the said offence -Apart from the confession of A 1, medical evidence, oral and documentary evidence, material objects G support the prosecution case - Confession of A 1 recorded in accordance with s. 164 Cr.PC- Confession of A 1 contained facts and "figures disclosing the crimes in which they were involved as a gang by conspiring together with the foreign 1 H 2 SUPREME COURT REPORTS (2014] 14 S.C.R. A nationals and some terrorist organisation - There was sufficient corroboration of the contents of the confession of A 1 - Confession of A 1 can be relied upon as against coaccused-A B- Thus, prosecution justified in relying upon the confession while resting its case on other evidences - B Offence charged against appellant conclusively proved except uls. 27(3)- Conviction of A1 andAB ulss. 121A, 121, 122,. 302, 307, 333, 467, 471 and 46B rlw s. 1208 upheld. ss. 121, 121A and 122 /PC rlw 1208 - Offence of conspiracy-,. Important facet of- Held: Conspiracy is a distinct C offence -All conspirators are liable for the acts of each other of the crime or crimes whichhave been committed as a result of the conspiracy- In the instant case, though the conspiracy was hatched in secrecy having regard to the oral and documentary evidence supported by the confession of A 1, D the existence of the conspiracy, the object of the conspiracy and the knowledge on the above for the participants of the conspiracyfullyestablished-Thus, chargeulss. 121, 121A and 122rlw1208 attracted. · ss. 121, 121A .and 122- Conviction under, for waging E of war against the State - General principles to be appliedExplained. · ·Sentence/Sentencing: Conspiracy to wage war against India -Attack on police F force at American Centre by A 1 ·and AB along with other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians --'Accused held guilty Of offences ulss. 121, 121A, 122 rlw 1208 /PC as well as ulss. 302, 307, 333 !W 120 8 /PC - imposition of death sentence- Challenged to, by A 1 and AB G - Held: In· view of magnitude of the offences, the manner in which it was carried out, the disastrous effect it caused, the animus with which the offence came to be committed, extreme punishment of death should be awarded to the 'H MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 3 accused-As regliJrdS the extent of participation, role of ABA · mastermind of the attack is of very high magnitude and the role of A 1-main conspirator of atta~k is slightly lesser in degree, though the magnitude of the crime was the same - However, in view of the facts and circumstances of the case death sentence not warranted, though deterrent punishment B called for- Imposition of death penalty for offences ulss. 121, 121A, 122 rlw 1208 /PC modified to life imprisonment-AB to suffer life imprisonment till the ## Text _Characters 0–38,879 of 359,205. This is a partial read: ask again with offset=38879 for what follows._ [2014] 14 S.C.R. 1 MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL (CriminalAppealNos.1240-1241 of2010) A MAY21, 2014 B [A. K. PATNAIK AND FAKKIR MOHAMMED IBRAHIM KALIFULLA, JJ.] Penal Code, 1 B60: SS. 121A, 121, 122, 302, 307, 333, 467, 471and46B rlws.1208-ArmsAct, 1959-ss. 25(1A), 27(2), and27(3)- C Waging of war against State - Pre planned attack on police force at American Centre by accused-A 1 and AB along with the absconding accused and other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians as also damage to D public property- Conviction of A 1, AB and others u/ss. 121A, 121, 122andss. 302, 307, 333, 467, 471and46Brlws.1208 and ulss. 25(1A), 27(2), and 27(3) oftheArmsActrlw s. 1208 - Imposition of death sentence for the said offences - Conviction of accused persons on the basis of confession of E A1, eye witness account of witnesses, oral evidence of prosecution witnesses and various exhibits - As regards accused-A 1 and AB, order upheld by the High Court-Appeal before this Court by A 1 and AB - Held: Factors established prove that A 1-main conspirator of the attack and ABF mastermind of the attack, along with other accused waged a war or attempted to wage a war against the Government of India, for which they all conspired together and committed the said offence -Apart from the confession of A 1, medical evidence, oral and documentary evidence, material objects G support the prosecution case - Confession of A 1 recorded in accordance with s. 164 Cr.PC- Confession of A 1 contained facts and "figures disclosing the crimes in which they were involved as a gang by conspiring together with the foreign 1 H 2 SUPREME COURT REPORTS (2014] 14 S.C.R. A nationals and some terrorist organisation - There was sufficient corroboration of the contents of the confession of A 1 - Confession of A 1 can be relied upon as against coaccused-A B- Thus, prosecution justified in relying upon the confession while resting its case on other evidences - B Offence charged against appellant conclusively proved except uls. 27(3)- Conviction of A1 andAB ulss. 121A, 121, 122,. 302, 307, 333, 467, 471 and 46B rlw s. 1208 upheld. ss. 121, 121A and 122 /PC rlw 1208 - Offence of conspiracy-,. Important facet of- Held: Conspiracy is a distinct C offence -All conspirators are liable for the acts of each other of the crime or crimes whichhave been committed as a result of the conspiracy- In the instant case, though the conspiracy was hatched in secrecy having regard to the oral and documentary evidence supported by the confession of A 1, D the existence of the conspiracy, the object of the conspiracy and the knowledge on the above for the participants of the conspiracyfullyestablished-Thus, chargeulss. 121, 121A and 122rlw1208 attracted. · ss. 121, 121A .and 122- Conviction under, for waging E of war against the State - General principles to be appliedExplained. · ·Sentence/Sentencing: Conspiracy to wage war against India -Attack on police F force at American Centre by A 1 ·and AB along with other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians --'Accused held guilty Of offences ulss. 121, 121A, 122 rlw 1208 /PC as well as ulss. 302, 307, 333 !W 120 8 /PC - imposition of death sentence- Challenged to, by A 1 and AB G - Held: In· view of magnitude of the offences, the manner in which it was carried out, the disastrous effect it caused, the animus with which the offence came to be committed, extreme punishment of death should be awarded to the 'H MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 3 accused-As regliJrdS the extent of participation, role of ABA · mastermind of the attack is of very high magnitude and the role of A 1-main conspirator of atta~k is slightly lesser in degree, though the magnitude of the crime was the same - However, in view of the facts and circumstances of the case death sentence not warranted, though deterrent punishment B called for- Imposition of death penalty for offences ulss. 121, 121A, 122 rlw 1208 /PC modified to life imprisonment-AB to suffer life imprisonment till the end of his life and.A 1 for a minimum period of 30 years without any remission - ss. 121A, 121, 122, 302, 307, 333, 467, 471and46Br/ws.1208. c . . Chargesulss. 121, 121A, 122rw1208asalso3021PC for waging of war against State and killing and injuring police personnel- Imposition of sentence - Principles to be borne in mind - Stated. Factors for proper sentencing- Stated. Evidence Act, 1 B72: ss. 10 and 30-Confession of accused uls. 164 Cr.P.C. D - Reliance upon, as against other accused - Held: When more than one person are being tried jointly for the same E offence and a confession 111,ade by on'e of such persons is found to affect the maker as well as the co-accused, the court can take into consideration such confession a~ against other persons and also against the person who made such confession - On facts, overwhelming evidence independent F of confession of A 1 on record, thus, confession of A 1 can be fully applied and thereby, involvement of A 1 in the criminal conspiracy and the following insurrection on police force at American Centre fully established, thus, confession of A 1 can be relied on as against AB. G s. 32- Dying declaration - Reliance upon - Oral dying declaration of one of the accused involved in the attack to the police officer - Admissibility of - Held: Cannot ·be accepted since it did not fall within the four comers of the H . ' 4 ' ··SUPREME COURT REPORTS (2014] 14 S.C.R A prescription contained In s. 32 - However, inability to rely upon the so-called oral dying declaration for want of legal sanction cannot mean that the entirety of the evidence of the police officer can be eschewed from consideration - Only said pa it of the version of police officer cannot be relied upon. B Code of Criminal Procedure, 1.973 ~ s. 164 - Confession of accused recorded under - Procedural compliance with -Admissibility' of- Held: A 1 was not in police · custody when his confession was recorded - Procedure for recording the confession was complied with - Confession C was voluntary - Retraction alleged to have been made by A 1. dealt with and the same did not cause any hindrance in accepting the confession - Narration so made in the • 1 confession by A 1 was natural and cogent and also established that the confession of A 1 was not only recorded in accoraance D withs. 164 but deserved to be given due consideration while appreciating the evidence relied upon by the prosecution. Arms Act, 1959 - s. 27(3) '- Conviction and death sentence imposed on accused under - Maintainability of - Held: S. 27(3) ultra vires of the Constitution and declared as E void, thus, convictions and sentence imposed u/s. 27(3) set aside. · Acc9rding to the prosecution case, the accused persons along with the other gang members, carried out a plan·ned attack on police fcirce at the American Centre, F Calcutta, which resulted in the death of five policemen and injury to around 15 police personnel along with other civilians. The gang members had rehearsed this previously and acquired and possessed arms and ammunition for the same. PW6-complainant, who was G working as sergeant~on the date of occurrence was on night duty and he witnessed the incident. Other prosecution witnesses, working there as Inspector and constable were eye witnesses .to the· incident. PW-6 through wireless communicated the said incident to the H MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 5 control room of the police. The police team cordoned A the premises and suspected the inmates to be militants . . They noticed two of the inmates escaped through the side gate shooting at the police and in the cross fire both of them were injured. Injured 'Z' made an oral dying declaration to PW-113-police officer when he was taken B to the hospital. He stated that he was the shooter involved in the shooting spree at the American Centre and 'S' was the driver of the motor bike. 'Z' died en route the hospital and 'S' died later. Investigation was carried out. A1 and other accused were arrested. The trial court c on the basis of the confession of A1, eye witness .account of witnesses, oral evidence of prosecution witnesses and various exhibits, convicted A1 to A3, A6 to A9 for offences u/ss. 121A, 121, 122 and ss.302, 307, 333, 467, 471, 46S rw 1208 IPC as. also u/ss. 25(1A), 27(2) o and 27(3) of Arms Act rw 1208 IPC and were accordingly sentenced to death: However, A4 and A5 were acquitted of all the charges. In appeal, the High Court acquitted A2 and A3 of all the charges, A6, A7 and A9 were acquitted of the offence of waging of war but convicted for the E offences u/ss. 467 rw 1208, 46S rw 1208 and 471 rw 1208 IPC. The High Court upheld conviction of A1-appellant 'N' and AS-appellant 'A' as well as the sentence imposed by the trial court on all counts. Hence, the instant appeals by A1 and AS. F · Disposing of the appeals, the Court HELD: Question No.1: Whether the charge under Section 27(3) of the Arms Act could be maintained in the light of the decision of this Court in Dalbir Singh's case? 1. Section 27(3) of the Arms Act having been struck G down on the ground that it was ultra vires of the Constitution and declared as void, the conviction and sentence imposed on the appellants under Section 27(3) cannot survive in the light of the decision of this Court H 6 SUPREME COURT REPORTS [2014] 14 S.C.R. A .in Dalbir Singh's case whereunder the Section 27(3) was struck down as unconstitutional. (Paras .11, · 80, 136] (47-A; 102-D-F; 149-G-H] B State Of Punjab v. Dalbir Singh 2012 (4) SCR 608 : (2012) 3 sec 346 - relied on. Question No.2: Whether apart from the confession of A 1-appellant 'N' whatwere the material legal evidence oral, documentary as well as in the form of material objects to suppor!: the case of prosecution? C 2.1 All the eye-witnesses, PW-6-complainant who worked as sergeant of the wireless section of Calcutta police, PW-9-inspector, PW-15-constable, PW-16constable, PW-18-constable, PW-19 and PW-20 uniformly confirmed that of the two miscreants the one who was firing towards the police force at 6.30 a.m. on 22.01.2002 D was wearing a Chocolate (Brown) colour jacket and the person who was riding the motor bike was wearing a Green colour jacket and firing with aid of 9 mm pistol. The evidence of PW-6 is categoric to the effect that the shooting operation, at the instance of the miscreants, E was from a distance of 10 to 15 feet. Due to the firing incident many of the police personnel who were on duty both in the previous shift of 21-22.01.2002 and the other group of personnel who were changing over the duty from the morning of 22.01.2002 were injured severely as F many of them were found lying on the ground and the empty bullets were scattered all around the place. [Para 87][106-D-F] 2.2 From the evidence of PWs-37 and 38 what all could be gathered was that they happened to see the G Maruti BOO car bearing Registration No.BRK-4907 parked at the crossing of 'M' Street and 'R' Street. [Para 90] (107-D]. . . 2.3 The evidence of PW-47, building promoter 'related to the sale effectuated by him in favour of 'NH', . H absconding accused, the ground floor flat in No.1, 'T' MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 7 Lane for a sale consideration and that possession was A handed over to 'NH' who was introduced to PW 47 by appellant 'N' and the execution of the document for flat was borne out by Exhibit P-63 which was also witnessed by PW-48-owner of the land. PW-47 on 20.01.2002, noticed appellant 'N' along with another person went out B in the early morning 5.30 a.m. in the Maruti 800 Car and two other persons who ·were also staying in No.1, 'T' Lane followea the said Maruti Car in a motor bike. It is, however, elicited in cross-examination that he was in the custody of the police between 30.01.2002 and 07 .02.2002. c in connection with the dacoity case which was disposed on 07 .02.2002. PW-48 in his evidence confirmed the seizure of Pakistan National Flag from the ground floor flat occupied by 'NH' on 5.2.2002. [Para 91][107-E-H; 108-D] D 2.4 PW-62 deposed that while he was in front of the shop of 'AN', he saw a Maruti Car parked in front of the shop of 'AN', that a Lorry got struck in the said road due to the haphazard parking of the Maruti Car, therefore, out of curiosity he noticed -the number of the vehicle E which was BRK-4907 and he later identified in the court at the time of his examination; and that little later he saw a Black colour motor bike which came there from which one gentleman was the pillion rider got down telling the driver of Maruti Car 'KAAM HO GAYA'. According to PWF 62, on that day, in the forenoon when news spread about the firing which had taken place at the American Centre, he felt that the occupants of Maru.ti Car and the Black motor bike might be involved in the occurrence and since he knew one PW 101~Police Inspector, he along with his· G friend 'GG' approached him and informed as to what they witnessed in the morning. As per his direction, he gave his statement to the officer of the Special Investigation Team. There was a Test Identification Parade in which PW-.62 identified appellant 'N'. He also identified the photo of the motor bike rider. PW-62 being an H 8 SUPREME COURT REPORTS [2014] 14 S.C.R. A independent witness ·and having been able to pass on the information whatever he noticed in the morning on the very same day in the forenoon to one of his known police officer, there is no reason why his version should not be accepted in the absence of any other serious B deficiency pointed out either as interested witness or a stock witness or any other deficiency on his part. As far as the non-examination of 'GG', it was established before the Court that at the time of trial, the said person was seriously ill and the necessary "ledical records were c . also produced in support of the said stand. Therefore, non-examination of friend of PW-62 also does not cause any dent in his version. (Paras 92, 93](108-E-H; 109-A-F] 2.5 PW-39, is the younger brother of the 'AS'. PW39 in the course of his chief-examination identified both D 'N' and 'A' in Court though, at the end of his deposition, he stated that he identified both of them under the pressure of the police. PW-39 stated about deceased A's contact with appellant 'N' and 'A' and also 'AS's deep involvement in Jehadi movement with the support of the E leader of Hizbul MuZahiddin as well as another leader Dr. 'MA', a Kashmiri, with whom he used to discuss about the militant activities and the hatred towards the Government of India. From the manner in which he deposed before' the Court, it" can be safely stated that F whatever he stated were all spontaneous statements. In fact, his version that he gained a feeling that the fate of his brother ended in a tragic manner because of his association with appellant 'A', who according to him was the root cause for the untimely demise of his elder G · brother. To that extent, the evidence of PW-39 can be noted. (Para 94][111-D-G] , 2.6 The evidence of PW-46 is referred who was one of the detenμe along with the 'AS' in the Tihar Jail and according to PW-46 he had witnessed the close contact H . of 'AS'withA8-'A'. [Para 95][111-G-H] MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 9 2. 7 PW-83-postmortem doctor, did the postmortem A on four of the dead bodies of the policemen who were killed in the occurrence on 22.01.2002 at about 6.30 a.m. at the American Centre. The evidence of PW-83 makes it clear that the shooting indulged in by two miscreants was from a very sophisticated automatic weapon, B namely, AK-47 and it had resulted in the instantaneous death of the police personnel. PW-95, Senior Scientific Officer, Ballistic Division, Forensic Science Laboratory· visited the site of occurrence, the American Centre on 22.01.2002 and stated thatthe holes and size of the dents · c and other damages, indicated that they were all caused by gun shot and the distribution of this holes, dents and damages suggested that automatic or semi-automatic type offirearm was involved in the crime, thatthe nature of portions of bullets recovered in the place of o occurrence indicated that rimless ammunition of caliber 7 .62 x 39 mm were used in the crime. The version of PWs83 and 95 therefore, confirmed the force with which the shooting activity was indulged in by the two miscreants towards the police force on the early hours of 22.01.2002 E at the American Centre. [Paras 96, 97 and 98][112-A, B, D, F-H; 113-A-D] 2.8 The evidence of PW-100, A.S.I. showed that· immediately after the occurrence the information was communicated to the police station and necessary F entries were made in the G.. D. and thereby, provide no scope for any delay being involved in registering the crime. [Para 99][113-F] 2.9 PW-113, police officer led one of the teams to ambush some terrorist who were staying in Hazaribagh G on 27-28.01.2002. Reference can be made to his evidence in so far as it related to apprehension of 'Z' and 'S' in the course of the encounter of the premises at Hazaribagh. PW-113 stated that when they were carrying the injured man to the hospital he disclosed his name H 10 SUPREME COURT REPORTS [2014] 14 S.C.R. A as 'Z' and also revealed that he was involved in the shooting incident that took place on 22.01.2002; and that in the said shooting incident his companion was one 'SD' who was driving the motor bike and himself, 'Z' was · the pillion rider of the motor bike and was firing from AKB 47; thatthe other injured persons name was 'S' and he is also a man of Laskar-e-Taiba and a resident -of Pakistan; that while taking to the hospital 'Z' died on the way while the other injured was admitted in the hospital who also later died and that the said person did not make C . any statement. To the extent it related to the so-called dying declaration claimed to have made before PW-113 by 'Z', his .evidence relating to that aspect cannot be accepted. Though, as regards the recovery of arms and ammunition said to have been made by PW-113 in the premises at Hazaribagh at a later point of time can be D accepted. The encounter and the nabbing of the 'Z', 'S' and the seizure of large quantity of arms and ammunition at Hazaribagh definitely gave a clue for the investigating machinery of the American Centre case to track the miscreants involved in the offence. It must be stated that . E: the inability to rely upon the so-called oral dying declaration for want of legal sanction cannot be taken · to mean that the entirety of the evidence of PW-113 can be eschewed from consideration. The claim of oral dying declaration of 'Z' to PW-113 cannot be acepted, inasmuch F as, if it were to be accepted, it should fall within the four corners of the prescription contained in Section 32 of the Evidence Act or otherwise it will create a bad precedent. Therefore, the said part of the version of PW113 cannot be relied upon and proceed to find out as to G how the case of the prosecution, as against the appellants, was proved and whether they succeeded in their attempt. [Paras 100, 10.1][114-A-E, H; 115-A-E] 2.10 PW-123, Investigating Officer, was entrusted with the task of investigation of the case relating to the . H shooting incident in front of the American Centre. The MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 11 evidence of PW-123 disclosed the collection of material A evidence through the apprehended accused and from whom the recoveries made based on. the admissible portion of the statement of appellant 'N' and appellant 'A'. The most significant aspect related to his requisition for recording the confession of appellant 'N', accused . s 'SA' and the seizure of vital documents at the residence of 'AS' at the instance of appellant 'A'. The same was done in accordance with law and, there was no infirmity on that score. The submission that the confession of appellant 'N' was not recorded in accordance with the C prescription contained under Section 164 of Cr. P.C. as he could not have made it voluntary as he was in police custody, cannot be accepted. In other respects there was not much of controversy relating to evidence of PW-123. Therefore, the Final Report filed by PW-123, as against 0 the accused, formulating the charges based on the evidence collected by the investigation machinery was duly considered by the trial court as well as the High Court. [Paras 102, 103)(116-D-E; 117-D, G, H] 2.11 An important facet of the law of conspiracy is that apart from it being a distinct offence, all conspirator$ E are liable for the acts of each other of the crime or crimes . which have been committed as a result of the conspiracy. Having applied the said principles to the instant case, though the conspiracy was hatched in secrecy having regard to the various circumstances exhibited in the form. F of oral and documentary evidence supported by the confession of appellant 'N ', the existence of the· conspiracy, the object of the conspiracy and the knowledge on the above for the participants of the conspiracy were all fully established. The outcome of G the said conspiracy, attracted the charge u/s.121, 121A and 122IPCrw1208.[Para 108][120-F. G; 121-B, C] Yakub Abdul Razak Mamon v. The State of Maharashtra, through CBI, Bombay JT 2013 (5) H 12 SUPREME COURT REPORTS [2014] 14 S.C.R. A SC .142; Govt. of NCT of Delhi v. Jaspal Singh 2003 (2) Suppl. scR 335: (2003) 10 sec 586; Baburao Bajirao Patil v. State of Maharashtra (1971) 3 sec 432 ...:;referred to. · 2.12 As far as the conspiracy is concerned, it cari B be referred to those·materials which existed or came into' being as between the date appellant 'N' had come-in contact with 'A' in the year 1999 till the death of 'A' and the materials which came intd being after his deinise. While dealing with· the said materials, the attendant C events can also be noted. The recovery of large quantities of arms and ammunition from the premises at place 'H', a revolver recovered from appellant 'N', the contents of the e-mail messages and the letter of 'A' to the wife of 'AS' after the killing of 'AS' read along with D some of the vital statements made by PW-39 in his evidence to the effect thatthe untimely death of 'AS' and· his involvement in this anti national activities were all after his contact with 'A' when cumulativel.Y considered, it is revealed that every preparation was made during the E lifetime of 'AS' which got intensified after his demise on 08.12.2001 in the encounteraf place' 'R' which was masterminded by appella'nt '!!>! with the .. wholehearted support of appellant 'N'.by arranging for the· stay of the other accused by s_ecuring a premises at plac,e 'H' by F bringing those· gang 'inenibers,_ nainely, deceased. 'Z', deceased 'S', 'HI', 'SD' from place 'A' to place 'H' with their heavy luggage which ultimately transpired to be arms and ammunitions stored in the premises of place 'H'.[Paras 105, 110)(120-F, G; 122-D-G] . G 2.13 From 14.01.2002 the various_e-mail messages H transacted between appellant 'N' with appellant 'A' and other conspirators which took.place.up to 29.01.2002 revealed the loaded mind set with which each one of them were operatin·g for executing the plans which were J I f MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 13. ' originally developed by the deceased 'AS' and 'A' which A were ultimately implemented with much more vehemence and vengeance by resorting to shooting spree towards the police force who were posted at.the American Centre. In fact, the messages between 14.01.2002 and 21.01.2002 exchanged between appellant B 'N', 'Z' and 'A' disclosed the mindset with which the gang members hatched the conspiracy to operate and to.carry out their mission of attacking the police force posted at the American Centre. Hayif1g reg.ard to the 011erwhelming documentary eviclence, vv,hic,h was placed befqre the c ~' ,- _-. '.,._._ ( . - .· courts below, the conclusi.on 4ltimat~ly reached by the courts below based on the materials coupled V,lith the . . .. --~ - oral evidence sufficiently e5~ablish,that the appellants along with the other accuse,~ cqnspired for w~9ing a war against the State. [Para 111J[l22~.% Hj) ~.~~~A"Dl ,., . · O ,Question No. 3: '1!,,he,ther}h~ •. co,r;i.r~ssion of appellant.,'.N' was recorded i!1 accordan.ce, with Section ' . . ' ''.l · ' , "~ ! ,' i -~·., · I! 164 of Cr,P.C.? , ;• , .; . 3.1 PW-97-Magistrate,,:~l:}o rec!i>r,def!ithe i;onfe~si0n of appellant 'N', applied all.p.r,e.9a}lti~..nsirequired unclE)r E law before the confession;ofappe)lanVN';was recprded. The submission made on;,behalf 0Htie,1appellimt;;J)l~Jh.at on the date of recording otco.nfessi?n1 l)e)IV,as in P.olice custody. was proved to be no.t correct art,~11t F to the Presidency Correctional 1-!a111e,of Calcutta )'Vjtl) .a specific direction to keep him if1 segr.egation,50 tha\1he did not mingle with other ·at;c1;1sed or strangers q,ef0re he was produc~d on 22.02:2~02at1 p.m. In fact, appellant 'N"s answers to •qu~5tions l to 18 re,corded i.t;i tl)e G confession itself, as .well as, the. la.st part of tpe confessional statement amply dJsclose that appellantN' was conscious of the impli.<;:atio.ns of m.aki11g a confession and in spite qf t~_at h(? proceeded to make H l 14 SUPREME COURT REPORTS [2014] 14 S.C.R. A the confession before PW-97. Further, at the time of recording of the confession PW-97 ensured that such recording took place in his chambers and that except himself and appellant 'N' nobody else was present in the chamber much less any of the police personnel. B Therefore, there was no scope for the appellant to contend that the confe.ssion was not recorded in accordance with law. [Para 112][123-D-H; 124-A, BJ . State (NCT of Delhi) v. Navjot Sandhu @ AfSan Guru 2005 (2) Suppl. SCR 79 : (2005) 11 sec . C 600 ; Hanumant Govind Nargundkar and another v. State of Madhya Pradesh 1952 SCR 1091 : AIR 1952 SC 343; Haricharan Kurmi v. State of Bihar · 1964 SCR 623: AIR 1964 SC 1184; Mohd .. Khalid v. State ofw· 8. 2002 (2) Suppl. ScR.:31 : D (2002) 7 SCC 334 _. referred to; •' · · 3.2 The confessioii o·f appellant 'N', the pro~edure followed by PW-97 while recording the confession apart from finding out the truthfulnelss of the statement contained in the confession, as well as, various other E evidence led by the ptosecution whiclh also supported to a very large·extent'the statement made by -'N' in his confession, have been dealt.with. In-the instant case,.the confession is fully acceptable and the details contained in the confession Were all·true.The retraction alleged to F have been made by appellant ~N! in the coucrse. of questioning was dealt with and it was found that the same did not in any way cause any hindrance,in accepting the confession,[Para 113][124•E·H] 3.3 In the instant case, the Court was fully fortified G in applying the confession made by appellant 'N' as against appellant 'A' based on the independent evidence which is available in abundance as against appellant 'A' which sufficiently supported the case of the prosecution. Therefore, the confession of appellant 'N' could also be H ' 1. • i:: • - ~ f MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 15 used while finding appellant 'A' guilty of the charges A levelled against him. [Para 115][125-E, F] 3.4 Applying the principles stated in Rabindra Kumar Pal's case, there is no scope to reject the confession of appellant 'N'.The Magistrate-PW-97 while recording the confession of appellant· 'N', took care of · B the principles laid down therein. By applying the twin test, namely, the voluntariness in making.the confession and its truthfulness,the reference to the Rabindra Kumar Pal's case did not in any way affect the case of the prosecution. As far as identification of the appellants; as C well as, the photographs of deceased 'Z'and 'S' and the other material objects, such as, Maruti 800 car, Suzuki Motorbike; the Chocolate and Green colour jackets w0rn by the assailants, there was no lacunae in the evidence of those witnesses who ideratified the accused as'Well . D as the ·material objects. It was made .clea.r.'th:at identification of accused persons .by Witnesses: in::the dock for the first: time, though permissible .cannot"be given credence without furthet corroborative evidence . . What was stated was thatthe dock identification :akme E could not be treated as substanti6J evidence tho4ghit was permissible. PW-62 who. was not "known to the accused was able to:ideratifyappellant 'N' in a TIP<:Parade · which was':conducted in·the Month of March,.200.2;d:e. Within a period of about 2% months after· the· focident. F Therefore, when the said witness was able. to identify appellant 'N' there was no scope to. do\11:>.t such identificati.o.n .. Further, the id.entificatio•Q.,o_,L,the photograph of 'Z' and the jacket worn .l;>y him as ideptified by PW-62 as well as the other eye-witnesses coulp 11ot G be rejected, as no serious deficiency in their identification could be noted. The identity of appellants 'N' and 'A' was made by PW-39, whose identification was not questionable on any account. [Para 117][126-8-H; 127-A] H l 16 SUPREME COURT REPORTS [2014] 14 S.C.R. A Rabindra Kumar Pal @ Dara Singh v. Republic oflndia 2011 (1) SCR 929 : (2011) 2 SCC 490 - referred to. 3.5 As regards, retraction, while referring to the questions and the answers made by appellant 'N', finding B was recorded that the same did not in any way affect the genuineness of the confession made by appellant 'N'. Further, the manner in which the confessional statement was made starting from the days when. appellantdN' developed .his friendship-with deceased 'AS.' in the school C days, their subsequent reunion in the year 1999 and the ultimate execution of the horrendous attack on the police force at the American Centre in which as many as five police personnel died and 15;number of police p·ersonnel suffered gun shot injuries along with·civilians1 which D narration could -not hav,e been· prepared by the prosecution agency with so many details pertaining to men and material and the ·sequence with which it was disclosed. T C was a conspiracy is applied to the case on hand,:aparf ' · from e.arlier·meetings of the appellants along with. 'AS' and othe.rs:. prior to· the demise of 'AS', as from 1415.01.2002 onwards, the participation of appellants in the q?ps.Rif,~.cy \'{ii~ i~tense. a9d every minute d~tails o,f the D act tQJJe. pe.rformedpn .42 .. 01.2002 was. deliberated upqn l~f«nd~~(e:~efo~e ifs execJ!.tlon. Therefore, the,dec~,~~~ ·~:.}.~e.i;:,~a.,s~d 'S', 'SD', 'HI'.! appellarJ.t '!"', 'A' ~nd otti,ers,. R,,';!15i!W1Wd ,~r:i }he conspiracy, re re fully aw.a~e of;~J:i~l tb.ey.we.r1:1 c.on.spiring and the object of such. c.onspiracy E · l\}' ;• .~li ~R,S 253 - r,eferred to. F <.Yu'~.3.J,he handwriting expert's opinion can be reJi.ed upon when.supported by other items of internal and. el(terJ!al..evidence. In the instant case, the handwriting J ;.'.-~~--~,,i-:;, ._.· ,,· '' ' . \ e~Rer.fl:Z,,OPinion. and 0ther documents .was only o,ne PJ,~Fe ?f_'eviden~e in a .voluminous documentary and G oHler ~v,i,dence, which was let in by the prosecution to s,1,1,~port:the ch(lrges fevelled against the appellant. [Para 132]148-A-CJ Bhagwan Singh and others v. State of M.P 2003 · E . :,;• .• ·'-< • • } • -" ' , .. (1) SCR 506 : (2003) 3 SCC 21 - referred to. H ' r 20 SUPREME COURT REPORTS [2014] 14 S.C.R. A 6.4 In the instant case, before executing the attack on 22.01.2002, a rehearsal was held by appellant 'N' along with the assailants on the previous days. Therefore, the witness who identified the appellant, namely, PW-62 had the advantage of looking at the appellant with some B amount of anxiety as appellant 'N' created a ruckus while parking the car on two occasions prior to the date of occurrence, namely, 22.01.2002. That apart, PW-39 who identified appellant 'N' and 'A' had known both of them earlier and, therefore, the identification of the appellants· C cannot be controverter at all. [Para 133][148-G-H; 149~AJ . Subash and Shiv Shankar v. State of U.P 1987 (2) SCR 962 : AIR. 1987 SC 1222 - distinguished. D 6.5 The various witnes\;es/facts whic~ w~r!'. f.11 crucial to the case of the prosecution as found in the confession of appellant 'N' were all corroborated iilliy by other _evide.nce, with oral an? documentarfA~''.*eU as material objects and, therefore, there was sufficient ' E corroboration of_ the contents of }_he conf~ssi~~ 1