# MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)

- **Citation:** [2022] 7 S.C.R. 792
- **Court:** Supreme Court of India
- **Decided:** 2022-11-03
- **Case number:** Criminal Appeal Nos. 98-99 of 2009
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-arif-ashfaq-v-state-nct-of-delhi-36349
- **Pages:** 41

## Headnote

Review Petition - Death Penalty - In firing incident inside
Lal Quila, three army jawans received fatal injuries and lost their
lives - Review Petitioner was tried and was awarded death sentence
- Death sentence was confirmed by High Court - Petitioner
preferred appeal before Supreme Court - The challenge was negated
and award of death to the petitioner was affirmed - Review petitions
before Division Bench were dismissed - Curative petition filed by
review petitioner also dismissed -Thereafter writ petition was
preferred on ground that the review petitions in matters arising out
of award of death sentence be heard by three judge bench in open
Court -On review, held: Challenge raised in these review petitions
were on grounds such as admissibility of electronic evidence,
reliability and admissibility of disclosure statement, relevancy of
recovered ammunition and possibility of rehabilitation of the review
petitioner - Electronic evidence in form of CDRs which was without
any appropriate certificate must be eschewed - Even after
eschewing such circumstances directly attributable to the CDRs,
the other circumstances on record do clearly spell out and prove
beyond any doubt the involvement of review petitioner in the crime
in question - In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of such disclosure statement
on issues of fact - Submission that recovery of ammunition or
encounter of 'A' could not be associated with the disclosure statement
of the review petitioner is not quite correct - Nothing on record
which can be taken to be a mitigating circumstance in favour of the
review petitioner - Suggestion that there is a possibility of retribution
and rehabilitation, is not made out from and supported by any
[2022] 7 S.C.R. 792
792
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material on record - Review petitions dismissed - Evidence Act,
1872 - s.65B.
Review - In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of disclosure statement on
issues of fact.
Dismissing the review petitions, the Court
HELD: 1. In review petitions, the challenge is raised
principally on four grounds: -
(a) The concerned Courts committed error in allowing call
records to be admitted in evidence, in the absence of an
appropriate certificate under Section 65B of the Indian Evidence
Act, 1872
(b) The disclosure statements of the review petitioner must
be taken to be inadmissible on account of ill treatment meted out
to him during the intervening night between his actual arrest and
his formal arrest.
(c) The recovery of ammunition or the encounter of one
Abu Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the
review petitioner, or that he would continue to be a threat to the
society, was not considered by the Courts. [Para 12][807-G; 808A-B]
2. Since the instant matter pertains to award of death
sentence, this review petition must be considered in light of the
decisions made by this Court in Anvar P.V. and Arjun Panditrao.
Consequently, one must eschew, for the present purposes, the
electronic evidence in the form of CDRs which was without any
appropriate certificate under Section 65-B(4) of the Evidence Act.
Circumstances mentioned at Serial Nos. 'h' and 'j' become
extremely weak as the tracing of calls received by PWs 39 and
41 to Mobile was possible only through CDRs. These
circumstances must not, therefore, be taken into account. Even
after eschewing circumstances 'h' and 'j' which were directly
attributable to the CDRs relied upon by the prosecution, the other
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
circumstances on record do clearly spell out and prove beyond
any doubt the involvement of the review petitioner in the crime
in question. [Paras 23-26][82

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MOHD. ARIF @ ASHFAQ
v.
STATE (NCT OF DELHI)
(Review Petition (Crl.) Nos. 286-287 of 2012)
in
(Criminal Appeal Nos. 98-99 of 2009)
NOVEMBER 03, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT
AND BELA M. TRIVEDI, JJ.]
Review Petition - Death Penalty - In firing incident inside
Lal Quila, three army jawans received fatal injuries and lost their
lives - Review Petitioner was tried and was awarded death sentence
- Death sentence was confirmed by High Court - Petitioner
preferred appeal before Supreme Court - The challenge was negated
and award of death to the petitioner was affirmed - Review petitions
before Division Bench were dismissed - Curative petition filed by
review petitioner also dismissed -Thereafter writ petition was
preferred on ground that the review petitions in matters arising out
of award of death sentence be heard by three judge bench in open
Court -On review, held: Challenge raised in these review petitions
were on grounds such as admissibility of electronic evidence,
reliability and admissibility of disclosure statement, relevancy of
recovered ammunition and possibility of rehabilitation of the review
petitioner - Electronic evidence in form of CDRs which was without
any appropriate certificate must be eschewed - Even after
eschewing such circumstances directly attributable to the CDRs,
the other circumstances on record do clearly spell out and prove
beyond any doubt the involvement of review petitioner in the crime
in question - In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of such disclosure statement
on issues of fact - Submission that recovery of ammunition or
encounter of 'A' could not be associated with the disclosure statement
of the review petitioner is not quite correct - Nothing on record
which can be taken to be a mitigating circumstance in favour of the
review petitioner - Suggestion that there is a possibility of retribution
and rehabilitation, is not made out from and supported by any
[2022] 7 S.C.R. 792
792
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793
material on record - Review petitions dismissed - Evidence Act,
1872 - s.65B.
Review - In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of disclosure statement on
issues of fact.
Dismissing the review petitions, the Court
HELD: 1. In review petitions, the challenge is raised
principally on four grounds: -
(a) The concerned Courts committed error in allowing call
records to be admitted in evidence, in the absence of an
appropriate certificate under Section 65B of the Indian Evidence
Act, 1872
(b) The disclosure statements of the review petitioner must
be taken to be inadmissible on account of ill treatment meted out
to him during the intervening night between his actual arrest and
his formal arrest.
(c) The recovery of ammunition or the encounter of one
Abu Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the
review petitioner, or that he would continue to be a threat to the
society, was not considered by the Courts. [Para 12][807-G; 808A-B]
2. Since the instant matter pertains to award of death
sentence, this review petition must be considered in light of the
decisions made by this Court in Anvar P.V. and Arjun Panditrao.
Consequently, one must eschew, for the present purposes, the
electronic evidence in the form of CDRs which was without any
appropriate certificate under Section 65-B(4) of the Evidence Act.
Circumstances mentioned at Serial Nos. 'h' and 'j' become
extremely weak as the tracing of calls received by PWs 39 and
41 to Mobile was possible only through CDRs. These
circumstances must not, therefore, be taken into account. Even
after eschewing circumstances 'h' and 'j' which were directly
attributable to the CDRs relied upon by the prosecution, the other
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
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circumstances on record do clearly spell out and prove beyond
any doubt the involvement of the review petitioner in the crime
in question. [Paras 23-26][822-D-E, H; 823-A]
Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399 and Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC
1- relied on.
3. Grounds 'b' and 'c' are purely factual in nature. The
disclosure statement, as a matter of fact, was held to have been
proved by the Courts below and this Court. In review jurisdiction,
it will not be possible to enter into questions regarding
admissibility of such disclosure statement on issues of fact. After
the person concerned named Abu Shamal alias Faisaln died in
the encounter, certain fire arms and ammunition were recovered.
The submission that such recovery of ammunition or the
encounter of Abu Shamal could not be associated with the
disclosure statement of the review petitioner is not quite correct.
This Court therefore rejects both the grounds taken in 'b' and
'c' as referred. [Para 27][823-B, C-D]
4. There is nothing on record which can be taken to be a
mitigating circumstance in favour of the review petitioner. The
suggestion that there is a possibility of retribution and
rehabilitation, is not made out from and supported by any material
on record. On the other hand, the aggravating circumstances
evident from the record and specially the fact that there was a
direct attack on the unity, integrity and sovereignty of India,
completely outweigh the factors which may even remotely be
brought into consideration as mitigating circumstances on record.
The submission so advanced under ground (d) does not merit
any acceptance and is, therefore, rejected. [Para 30][831-G-H;
832-A-B]
Mohd. Arif alias Ashfaq v. State (NCT of Delhi) (2011)
13 SCC 621 : [2011] 10 SCR 56; Mohd. Arif Alias
Ashfaq v. Registrar, Supreme Court of India & Ors.
(2014) 9 SCC 737 : [2014] 11 SCR 1009; Mohd. Arif
alias Ashfaq v. Registrar, Supreme Court of India &
Ors. (2019) 9 SCC 404; Vikram Singh alias Vicky Walia
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& Anr. v. State of Punjab & Anr. (2017) 8 SCC 518 :
[2017] 8 SCR 177; Akshay Kumar Singh v. State (NCT
of Delhi) (2020) 3 SCC 431; Shafi Mohammed v. State
of Himachal Pradesh (2018) 2 SCC 801; Vasanta
Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850; State (NCT of Delhi) v. Navjot
Sandhu alias Afsan Guru (2005) 11 SCC 600 : [2005]
2 Suppl. SCR 79; Tomaso Bruno & Anr. v. State of Uttar
Pradesh (2015) 7 SCC 178 : [2015] 1 SCR 721 and
Sonu alias Amar v. State of Haryana (2017) 8 SCC 570
: [2017] 8 SCR 151- referred to.
Case Law Reference
[2014] 11 SCR 1009
referred to
Para 7
(2019) 9 SCC 404
referred to
Para 8
[2017] 8 SCR 177
referred to
Para 13
(2020) 3 SCC 431
referred to
Para 14
[2014] 11 SCR 399
relied on
Para 15
(2020) 7 SCC 1
relied on
Para 15
[2005] 2 Suppl. SCR 79
referred to
Para 17
[2015] 1 SCR 721
referred to
Para 19
[2017] 8 SCR 151
referred to
Para 20
(2018) 2 SCC 801
referred to
Para 21
[2017] 3 SCR 850
referred to
Para 29
INHERENT JURISDICTION: Review Petition (Crl.) Nos. 286287 of 2012 in Criminal Appeal Nos. 98-99 of 2009.
From the Judgment and Order dated 10.08.2011 of this Court in
Criminal Appeal Nos. 98-99 of 2009.
Siddharth Agarwal, Sr. Adv., Abhinav Sekhri, Amartya Kanjilal,
Vishwajeet Bhati, Ms. Arshiya Ghose, Mohd. Irshad Hanif, Advs. for
the Petitioner.
S V Raju, ASG, Sairica Raju, Ms. Binu Tamta, Ms. Suhashini Sen,
Ms. Swati Ghildiyal, Ashutosh Gadhe, Anshuman Singh, B. V. Balaram
Das, Advs. for the Respondent.
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, CJI.
1. These review petitions arise out of the judgment and order
dated 10.8.20111 passed by this Court in Criminal Appeal Nos. 98-99/
2009.
2. According to the prosecution, on the night of 22.12.2000 some
intruders entered the area where the Unit of 7 Rajputana Rifles of the
Indian Army was stationed inside the Red Fort, New Delhi. In the firing
that was opened by the intruders, three Army jawans lost their lives.
The intruders then left by scaling the rear-side boundary wall of the Red
Fort. This led to the lodging of FIR No. 688/2000 registered with Kotwali
Police Station, New Delhi in respect of offences punishable under Sections
302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 of the Indian Penal
Code, 18602 read with Sections 25, 27, 54 and 59 of the Arms Act, 1959,
Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the Explosive
Substances Act, 1908 and Sections 420, 468, 471, 474 and 34, IPC. In
the investigation, the involvement of the present review petitioner was
made out.
3. The review petitioner, who was tried for said offences, was
awarded death sentence vide judgment and order dated 31.10.2005
passed by the Court of Additional Sessions Judge, Delhi in Sessions
Case Nos. 1/2005, 2/2005, 5/2005, 7/2005, 8/2005, 9/2005, 10/2005 and
11/2005, which arose out of the aforestated FIR. The award of death
sentence was subject to confirmation by the High Court.
4. The matter was thereafter considered by the High Court in
Death Sentence Reference No. 2/2005 with Criminal Appeal Nos. 891/
2005, 892/2005, 907/2005, 927/2005, 944-945/2005, 946/2005, 273/2006
and 504/2006. The view taken by the trial Court was affirmed by the
High Court vide its judgment dated 13.9.20073.
5. The matter then reached this Court in the form of Criminal
Appeal Nos. 98-99/2009 at the instance of the review petitioner. However,
the challenge was negated by this Court and the award of death sentence
to the petitioner was affirmed vide judgment dated 10.8.2011, which has
resulted in filing of the instant review petitions.
1 Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621
2 "IPC" for short
3 (2007) SCC Online Del 1259
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6. The instant review petitions had initially come up before the
Bench of two Judges and by order dated 28.8.2012, the review petitions
were dismissed. Curative Petition (Crl.) Nos.99-100/2013 filed by the
review petitioner sought to challenge the view taken by the Division
Bench of this Court in dismissal of the appeals, as well as, the review
petitions. However, the curative petitions were also dismissed by this
Court vide order dated 23.1.2014.
7. Soon thereafter, Writ Petition (Crl.) No. 77/2014 was preferred
by the review petitioner submitting inter alia, that the review petitions
in matters arising out of award of death sentence be heard by a Bench
of three Judges and in open Court. The Constitution Bench of this Court
by its judgment dated 2.9.20144 concluded that in all cases in which
death sentence was awarded by the High Court, such matters be listed
before a Bench of three Judges. The relevant observations in paragraph
39 were as under:
"39. Henceforth, in all cases in which death sentence has been
awarded by the High Court in appeals pending before the Supreme
Court, only a bench of three Hon'ble Judges will hear the same.
This is for the reason that at least three judicially trained minds
need to apply their minds at the final stage of the journey of a
convict on death row, given the vagaries of the sentencing
procedure outlined above. At present, we are not persuaded to
have a minimum of 5 learned Judges hear all death sentence cases.
Further, we agree with the submission of Shri Luthra that a review
is ordinarily to be heard only by the same bench which originally
heard the criminal appeal. This is obviously for the reason that in
order that a review succeeds, errors apparent on the record have
to be found. It is axiomatic that the same learned Judges alleged
to have committed the error be called upon now to rectify such
error. We, therefore, turn down Shri Venugopal's plea that two
additional Judges be added at the review stage in death sentence
cases."
8. A question still arose: whether in matters where the review
petitions had already stood rejected when the aforementioned decision
was rendered by the Constitution Bench of this Court, could there be
4 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2014) 9 SCC
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MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
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reopening of the matter and the review petition be reheard? A subsequent
Constitution Bench in its order dated 19.1.20165 observed as under: -
"9. In the circumstances therefore and especially in view of the
fact that the petitioner is perhaps the only person that will suffer
the denial of the right to an open court hearing, we are inclined to
modify the judgment on review and direct that the petitioner shall
also be entitled to seek reopening of the dismissal of the review
petitions for an open court hearing within one month from today.
We permit the petitioner to raise all such additional grounds in
support of the said review petition as may be legally permissible
to him."
9. In this backdrop, the instant review petitions are listed before
us for rehearing.
10. At this stage, we may set out certain circumstances which
were found to have been proved by the High Court and this Court. In
paragraph Nos. 182-191 of the judgment which is presently under review,
it was observed as under: -
"182. The High Court has held proved the following circumstances
against the appellant:
"(a) On the night of 22-12-2000 there was an incident of firing
inside Lal Quila when some intruders had managed to enter
that area of Lal Quila where the unit of 7th Rajputana Rifles of
the Indian Army was stationed.
(b) In that incident of shooting the intruders had fired
indiscriminately from their AK-56 rifles as a result of which
three army jawans received firearm injuries and lost their lives.
(c) The death of three army jawans was homicidal.
(d) Immediately after the quick reaction team of the army fired
back upon the intruders as a result of which the intruders escaped
from the place of occurrence by scaling over the rear side
boundary wall of Lal Quila towards the Ring Road side and
when the place of occurrence was searched by the army men
many assault rifle fired cartridge cases were recovered from
the place of occurrence.
5 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2019) 9 SCC
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(e) Immediately after the intruders who had resorted to firing
inside the army camp had escaped from there, calls were made
by someone on the telephones of two BBC correspondents
one of whom was stationed at Srinagar and the other one was
stationed at Delhi office of BBC and the caller had informed
them about the shooting incident inside Lal Quila and had also
claimed the responsibility of that incident and that that was the
job of Lashkar-e-Toiba, which the prosecution claims to be a
banned militant organization indulging in acts of terrorism in
our country.
(f) On the morning of 23-12-2000 one AK-56 rifle was
recovered from a place near Vijay Ghat on the Ring Road
behind Lal Quila.
(g) On 23-12-2000 when the policemen conducted search
around Lal Quila in the hope of getting some clue about the
culprits they found one piece of paper lying outside Lal Quila
near the rear side boundary wall towards Ring Road side and
on that piece of paper one Mobile Phone No. 9811278510 was
written.
(h) Mobile Phone No. 9811278510 was used for making calls
to the two BBC correspondents (PWs 39 and 41) immediately
after the shooting incident inside Lal Quila and the caller had
claimed the responsibility for that incident and had informed
them that the incident was the job of Lashkar-e-Toiba.
(i) The aforesaid mobile phone number found written on a piece
of paper lying behind Lal Quila had led the police up to Flat
No. 308-A, Ghazipur, New Delhi where accused Mohd. Arif
alias Ashfaq was found to be living and when on being
suspected of being involved in the shooting incident he was
apprehended on the night of 25-12-2000/26-12-2000 one pistol
and some live cartridges were recovered from his possession
for which he did not have any licence.
(j) At the time of his arrest in case FIR No. 688 of 2000 one
mobile phone having No. 9811278510 was recovered from his
possession and it was the same mobile number from which
calls had been made to the two BBC correspondents for
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[UDAY UMESH LALIT, CJI]
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informing them about the incident and Lashkar-e-Toiba being
responsible for that incident.
(k) Immediately after his apprehension accused Mohd. Arif
alias Ashfaq admitted his involvement in the shooting incident
inside Lal Quila and also disclosed to the police about his another
hide-out at G-73, Batla House, Muradi Road, Okhla, New Delhi
and pursuant to his disclosure the police had gone to that hideout where the occupant of that house started firing upon the
police team and when the police team returned the firing, that
person, who was later on identified by accused Mohd. Arif
alias Ashfaq to be one Abu Shamal alias Faizal, died because
of the firing resorted to by the policemen. From House No. G73, where the encounter had taken place, one AK-56 rifle and
some live cartridges and hand grenades were recovered.
(l) Accused Mohd. Arif alias Ashfaq while in police custody
had also disclosed to the police that one assault rifle had been
thrown near Vijay Ghat after the incident. The police had
already recovered one AK-56 rifle from Vijay Ghat on the
morning of 23-12-2000. Accused Mohd. Arif alias Ashfaq had
thus the knowledge about the availability of that AK-56 rifle at
Vijay Ghat.
(m) Accused Mohd. Arif alias Ashfaq had also got recovered
one AK-56 rifle and some ammunition from behind Lal Quila
on 26-12-2000.
(n) Accused Mohd. Arif alias Ashfaq had also got recovered
three hand grenades from some place behind his computer
centre in Okhla on 1-1-2001 pursuant to his another disclosure
statement made by him while in police custody.
(o) When the assault rifle fired cartridge cases which were
recovered from the place of occurrence by the army men after
the intruders had escaped from there were examined by the
ballistic expert along with the AK-56 rifle which was recovered
at the instance of accused Mohd. Arif alias Ashfaq from behind
Lal Quila on 26-12-2000 and the AK-56 rifle which was
recovered from Vijay Ghat on 23-12-2000 it was found by the
ballistic expert (PW 202) that some of the assault rifle fired
cartridge cases had been fired from the rifle recovered from
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behind Red Fort and some had been fired from the other rifle
Ih was recovered from Vijay Ghat.
(p) Appellant-accused Mohd. Arif alias Ashfaq was a Pakistani
national and had entered the Indian territory illegally.
(q) After making illegal entry into India appellant-accused
Mohd. Arif alias Ashfaq had been representing to the people
coming in his contact during his stays at different places that
he was a resident of Jammu and was doing the business of
shawls while, in fact, he had no such business and he had been
collecting money through hawala channels.
(r) Accused Mohd. Arif alias Ashfaq had obtained a forged
ration card, Ext. PW-164/A wherein not only his house number
mentioned was not his correct address but even the name of
his wife shown therein was not Rehmana Yusuf Farukhi. He
had also forged his learner driving licence, Ext. PW-13/C as
well as one document, Ext. PW-13/E purporting to be a
photocopy of another ration card in his name with his residential
address of Ghaziabad where he admittedly never resided and
he submitted that document with the Ghaziabad Transport
Authority for obtaining permanent driving licence. In the learner
driving licence also he had shown his residential addresses
where he had never actually resided. All that he did was to
conceal his real identity as a militant having entered the Indian
territory with the object of spreading terror with the help of his
other associate militants whom unfortunately the police could
not apprehend and some expired before they could be tried."
183. In addition to these circumstances, there is another
circumstance that a message was intercepted by BSF vide
Exhibit PW-162/A and proved by PW 162 Inspector J.S.
Chauhan dated 26-12-2000 wherein there was a specific
reference to the accused. Still another circumstance would be
that the accused had no ostensible means of livelihood and yet
he deposited Rs 29,50,000 in three accounts, namely, Standard
Chartered Grindlays Bank, Connaught Place (known as ANZ
Grindlays Bank) bearing Account No. 32263962 of M/s Nazir
& Sons, Standard Chartered Grindlays Bank bearing Account
No. 28552609 of Bilal Ahmad Kawa and Standard Chartered
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
[UDAY UMESH LALIT, CJI]
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Bank bearing Account No. 32181669 of Farooq Ahmed Qasid
and also deposited some amounts in the account of Rehmana
Yusuf Farukhi and he had no explanation of these huge amounts,
their source or their distribution. Lastly, the appellant gave a
fanciful and a completely false explanation about his entering
in India and his being a member of RAW and thereby, his having
interacted with Nain Singh (PW 20).
184. We are in complete agreement with the findings regarding
the incriminating circumstances as recorded by the High Court.
On the basis of the aforementioned circumstances, the High
Court came to the conclusion that the appellant was responsible
for the incident of shooting inside Lal Quila (Red Fort) on the
night of 22-12-2000, which resulted in the death of three soldiers
of army. It has also been held by the High Court that this was
a result of well-planned conspiracy between the appellant and
some other militants including deceased Abu Shamal alias Faizal
who was killed in an encounter with the police at House No.
G-73, Batla House, Muradi Road, Okhla, New Delhi. The High
Court has also deduced that it was at the instance of the
appellant that the police could reach that spot.
185. The High Court has further come to the conclusion that it
was in a systematic manner that the appellant came to India
illegally and collected highly sophisticated arms and ammunition
meant for mass destruction. The High Court further held that
he chose to select Red Fort for an assault along with his other
associates, Red Fort being a place of national importance for
India. The High Court has also recorded a finding that the
chosen attack was on the army camp which was stationed
there to protect this monument of national importance. The
High Court has, therefore, deduced that it was an act of waging
war against the Government of India. It is further held that the
associates, with whom the appellant had entered into
conspiracy, had attacked the army camp, which suggests that
there was a conspiracy to wage war against the Government
of India, particularly, because in that attack, sophisticated arms
like AK-47 and AK-56 rifles and hand grenades were used.
186. The High Court also took note that this aspect regarding
waging war was not even argued by the learned counsel
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appearing for the defence. It is on this basis that the appellant
was held guilty for the offences punishable under Sections 120B, 121-A, 121 IPC, Section 120-B read with Section 302 IPC
and Sections 468/471/474 IPC and also the offences under
Sections 186/353/120-B IPC. He was also held guilty for the
offence under Section 14 of the Foreigners Act, since it was
proved that the appellant, a foreigner, had entered the territory
of India without obtaining the necessary permissions and
clearance. Similarly, the appellant was also held guilty for the
offences under the Arms Act as well as the Explosive
Substances Act on account of his being found with a pistol and
live cartridges.
187. The law on the circumstantial evidence is, by now, settled.
In Sharad Birdhichand Sarda v. State of Maharashtra (1984)
4 SCC 116 this Court drew out the following test for relying
upon the circumstantial evidence: (SCC p. 185, para 153)
"153. ... (1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused."
The principle of this judgment was thereafter followed in a
number of decisions, they being Tanviben Pankajkumar
Divetia v. State of Gujarat (1997) 7 SCC 156, State (NCT of
Delhi) v. Navjot Sandhu (2005) 11 SCC 600, Vikram
Singh v. State of Punjab (2010) 3 SCC 56 and Aftab Ahmad
Anasari v. State of Uttaranchal (2010) 2 SCC 583, etc.
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188. It is to be noted that in the last mentioned decision of Aftab
Ahmad Anasari v. State of Uttaranchal (2010) 2 SCC 583, the
observation made is to the following effect: (SCC p. 589, paras
13-14)
"13. In cases where evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact must be proved individually and only thereafter the court
should consider the total cumulative effect of all the proved
facts, each one of which reinforces the conclusion of the guilt.
If the combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the conviction
would be justified even though it may be that one or more of
these facts, by itself/themselves, is/are not decisive. The
circumstances proved should be such as to exclude every
hypothesis except the one sought to be proved. But this does
not mean that before the prosecution case succeeds in a
case of circumstantial evidence alone, it must exclude each
and every hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be.
14. There must be a chain of evidence so far complete as not
to leave any reasonable ground for conclusion consistent with
the innocence of the accused and it must be such as to show
that within all human probability, the act must have been done
by the accused. Where the various links in a chain are in
themselves complete, then a false plea or a false defence may
be called into aid only to lend assurance to the court."
(emphasis supplied)
189. The Court further went on to hold that in applying this principle,
distinction must be made between the facts called primary or basic,
on the one hand, and the inference of facts to be drawn from
them, on the other. The Court further mentioned that: (Aftab
Ahmad Anasari case (2010) 2 SCC 583, SCC p. 590, para 15)
"15. ... In drawing these inferences or presumptions, the court
must have regard to the common course of natural events, and
to human conduct and their relations to the facts of the particular
case."
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To the similar effect are the observations made
in Vikram Singh v. State of Punjab (2010) 3 SCC 56.
190. There can be no dispute that in a case entirely dependent on
the circumstantial evidence, the responsibility of the prosecution
is more as compared to the case where the ocular testimony or
the direct evidence, as the case may be, is available. The Court,
before relying on the circumstantial evidence and convicting the
accused thereby has to satisfy itself completely that there is no
other inference consistent with the innocence of the accused
possible nor is there any plausible explanation. The Court must,
therefore, make up its mind about the inferences to be drawn
from each proved circumstance and should also consider the
cumulative effect thereof. In doing this, the Court has to satisfy
its conscience that it is not proceeding on the imaginary inferences
or its prejudices and that there could be no other inference possible
excepting the guilt on the part of the accused.
191. We respectfully agree with the principles drawn in the
abovementioned cases and hold that the prosecution was
successful in establishing the abovementioned circumstances
against the appellant, individually, as well as, cumulatively. There
indeed cannot be a universal test applicable commonly to all the
situations for reaching an inference that the accused is guilty on
the basis of the proved circumstances against him nor could there
be any quantitative test made applicable. At times, there may be
only a few circumstances available to reach a conclusion of the
guilt on the part of the accused and at times, even if there are
large numbers of circumstances proved, they may not be enough
to reach the conclusion of guilt on the part of the accused. It is the
quality of each individual circumstance that is material and that
would essentially depend upon the quality of evidence. Fanciful
imagination in such cases has no place. Clear and irrefutable logic
would be an essential factor in arriving at the verdict of guilt on
the basis of the proved circumstances. In our opinion, the present
case is such, as would pass all the tests so far devised by this
Court in the realm of criminal jurisprudence."
11. Some of the other features of the matter, as noted by this
Court, were: -
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"151. The prosecution proved 9 cash deposit slips of Grindlays
Bank, the total amount being Rs 29,50,000. According to the
prosecution, these were in appellant's handwriting while the
depositors' names have been mentioned as Aslam, Salim Khan,
R.K. Traders and Rashid. We have already discussed about the
fake residential address given by the appellant while opening the
account with HDFC Bank. The details of this account were proved
by Sanjeev Srivastava (PW 22). He proved Exhibits PW-22/B, C
and F. Exhibit PW-22/F is a copy of the account statement of
Rehmana, the wife of the accused which suggests that from 159-2000 onwards up to 14-12-2000, on various dates, amounts like
Rs 10,000, Rs 40,000, Rs 50,000, Rs 1,50,000, Rs 2,00,000, etc.
were deposited in cash. The total amount deposited was Rs
5,53,500. There is absolutely no explanation by the appellant about
the source from which these amounts came.
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153. The most important link with the HDFC account as also with
the deposit slips of Standard Chartered Grindlays Bank came to
light. Dr. M.A. Ali (PW 216), SSO, CFSL, CBI, New Delhi, on
the basis of his report, deposed that the account opening form of
HDFC Bank of the appellant, 9 deposit slips of Standard Chartered
Grindlays Bank as also deposit slips of State Bank of India account
of Rehmana Yusuf Farukhi bore the handwriting of the appellant.
This clinches the issue about the account opened in HDFC Bank.
It is to be noted that there were three accounts in Standard
Chartered Grindlays Bank in the name of M/s Nazir & Sons,
Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18) which
had Account Nos. 32263962, 28552609 and 32181669 respectively.
The investigating agency collected the documents from Standard
Chartered Grindlays Bank including 9 cash deposit receipts as
also documents regarding the Account Nos. 32263962, 28552609
and 32181669. 9 cash deposit slips are purportedly in the name of
Aslam, Salim Khan, R.K. Traders and Rashid and all these have
been proved to be in the handwriting of the appellant.
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159. The argument of Ms Jaiswal, learned counsel appearing on
behalf of the appellant, that Nazir Ahmad Qasid (A-3) and Farooq
Ahmed Qasid (A-4) have already been acquitted, is of no
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consequence. We may point out that there is absolutely no
explanation by the appellant either by way of cross-examination
of the witnesses or by way of his statement under Section 313
CrPC as to where all these amounts had come from and why did
he deposit huge amounts in the three accounts mentioned above.
Rs 29,50,000 is not an ordinary sum. Also, there is no evidence
that in his account in HDFC Bank, the appellant has Rs 6 lakhs.
Further, a very sizeable amount is shown to have been paid to
Rehmana Yusuf Farukhi in her account in State Bank of India.
How did the appellant receive all these amounts and from where,
are questions that remain unanswered in the absence of any
explanation and more particularly because the appellant had no
ostensible means of livelihood. It would have to be held that the
appellant was dealing with huge sums of money and he has no
explanation therefor. This is certainly to be viewed as an
incriminating circumstance against the appellant. The silence on
this issue is only telling of his nefarious design.
160. It is obvious that the appellant was a very important wheel in
the whole machinery which was working against the sovereignty
of this country. All this was supported by the fact that 9 deposit
slips, the bank forms for opening the accounts, the slip through
which the amount was deposited in the account of Rehmana Yusuf
Farukhi, were all proved to be in the handwriting of the appellant.
We have absolutely no reason to reject the evidence of the
handwriting expert. All this suggests that the appellant was weaving
his web of terrorist activities by taking recourse to falsehood one
after the other including his residential address and also creating
false documents."
12. In these review petitions, the challenge is raised principally on
four grounds: -
(a) The concerned Courts committed error in allowing call records
to be admitted in evidence, in the absence of an appropriate
certificate under Section 65B of the Indian Evidence Act,
18726.
(b) The disclosure statements of the review petitioner must be
taken to be inadmissible on account of ill-treatment meted out
6 "the Evidence Act", for short.
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to him during the intervening night between his actual arrest
and his formal arrest.
(c) The recovery of ammunition or the encounter of one Abu
Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the review
petitioner, or that he would continue to be a threat to the society,
was not considered by the Courts.
13. On the other hand, it is submitted on behalf of the State, that
the scope of a review petition even in matters arising out of award of
death sentence would be extremely limited. Reliance has been placed
on the decisions of this Court in Vikram Singh alias Vicky Walia &
Anr. vs. State of Punjab & Anr.7 and specially the following paragraph:-
"23. In view of the above, it is clear that scope, ambit and
parameters of review jurisdiction are well defined. Normally in a
criminal proceeding, review applications cannot be entertained
except on the ground of error apparent on the face of the record.
Further, the power given to this Court under Article 137 is wider
and in an appropriate case can be exercised to mitigate a manifest
injustice. By review application an applicant cannot be allowed to
reargue the appeal on the grounds which were urged at the time
of the hearing of the criminal appeal. Even if the applicant succeeds
in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground
for review. This Court shall exercise its jurisdiction to review only
when a glaring omission or patent mistake has crept in the earlier
decision due to judicial fallibility. There has to be an error apparent
on the face of the record leading to miscarriage of justice to
exercise the review jurisdiction under Article 137 read with Order
40 Rule 1. There has to be a material error manifest on the face
of the record with results in the miscarriage of justice."
14. Reliance has further been placed on the decision of this Court
in Akshay Kumar Singh vs. State (NCT of Delhi)8, where it was
observed by this Court as under: -
7 (2017) 8 SCC 518
8 (2020) 3 SCC 431
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"7. In this review petition, the petitioner prays for review of the
judgment dated 5-5-2017 [Mukesh v. State (NCT of Delhi), (2017)
6 SCC 1]. In the review petition before us, the petitioner has
again sought to assail the merits of the prosecution case and the
findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and
review cannot be entertained except in cases of error apparent
on the face of the record. Article 137 of the Constitution of India
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
Parliament or any rule made under Article 145 of the Constitution
of India.
9. Order 47 Rule 1 of the Supreme Court Rules, 2013 dealing
with review reads as follows:
"1. The Court may review its judgment or order, but no
application for review will be entertained in a civil proceeding
except on the ground mentioned in Order 47 Rule 1 of the
Code, and in a criminal proceeding except on the ground of an
error apparent on the face of the record."
As per the Supreme Court Rules, review in the criminal
proceedings is permissible only on the ground of error apparent
on the face of the record.
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11. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to reappreciate the evidence
and reach a different conclusion. The scope of review jurisdiction
has been elaborately considered by this Court in number of cases
and the well-settled principles have been reiterated time and
again......"
15. The basic submission in the instant matter, as advanced by
Mr. Siddharth Agarwal, learned senior counsel on behalf of the review
petitioner is about the admissibility of electronic record being Call Data
Records (CDRs) (Exhibit PW-198/B1-B3), CDRs (Exhibit PW-198/E)
and CDR (Exhibit PW-229/A). It is submitted that on the strength of the
law declared by this Court in Anvar P.V. vs. P.K. Basheer & Ors.9, as
9 (2014) 10 SCC 473
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affirmed by this Court in Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal & Ors.10, certification under Section 65B of the
Evidence Act would be a pre-requisite for admissibility of an electronic
record such as CDRs; that there being total non-compliance of this
mandatory requirement, the afore-stated CDRs would be inadmissible
and must be eschewed from consideration at every juncture. The
extension of the submission is that the entire fulcrum of the prosecution
case rested on these CDRs and minus this evidence, there is hardly
anything which could prove the identity and involvement of the petitioner
in the crime in question.
16. The submission advanced on behalf of the review petitioner
on the first ground as set out in the Note given by the learned Senior
Counsel is as under: -
"A. Admissibility of electronic records
(i) The central feature of the Prosecution case permeating the
entire Judgment under Review are circumstances and inferences
that have been drawn on the strength of anlysis of electronic
records (CDRs).