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

- **Citation:** [2011] 10 S.C.R. 56
- **Court:** Supreme Court of India
- **Decided:** 2011-08-10
- **Case number:** Criminal Appeal Nos. 98-99 of 2009
- **Bench:** V.S. Sirpurkar, T. S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-arif-ashfaq-v-state-of-nct-of-delhi-27146
- **Pages:** 140

## Headnote

CONSTITUTION OF IND/A, 1950:
C
Article 136 - Scope of - Held: Supreme Court ordinarily
does not go into the appreciation of evidence, particularly,
where there are concurrent findings of facts - However, the
Court examined the oral and documentary evidence not only
relating to the appellant, but also to the other accused persons
- As a result, the Court is of the view that the courts below
D have fully considered the oral and documentary evidence for
coming to the conclusions that ther did.
PENAL CODE, 1860
E
ss. 121, 121-A, 120-8 rlw s. 302, 18613531120-8, 4681471
and 4201120-8 - Conspiracy to wage war against and to
overawe Government of India - Red Fort attack -
Three
soldiers killed by intruders - Circumstantial evidence -
Appellan.t-accused, a Pakistani national and member of an
F
international terrorist organization, apprehended on the basis
of a cell phone number - On his disclosure statements,
sophisticated weapons used in the attack, hand grenades,
diary etc. recovered leading to police encounter of his
associate and seizure of documents from the office of a
'hawa/a' dealer (absconding) - Some accused absconding
G and three killed in encounters - Conviction of appellantaccused and sentence of death awarded by trial court,
confirmed by High Court - Other accused acquitted by High
Court - HELD: The offence of conspiring to wage a war is
proved to the hilt against the appellant, for which he has been
H
56
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
57
DELHI
· rightly held guilty of the offence punishable u/s. 121 and 121A
A, /PC - The appellant is also rightly held guilty of the offence
punishable u/s. 120-B rlw s. 302, /PC - 7 he High Court rightly
came to the conclusion that the appellant was responsible for
the incident. of shooting inside the Red Fort on the night of
22.12.2000, which resulted in the death of three soldiers of B
Army - The Court agrees with the verdict of the trial court as
well as the High Court-Arms Act, 1959 - s. 25 - Explosive
Substances Act, 1908 - s. 4 - Foreigners Act, 1946 - s. 4 -
evidence - Circumstantial evidence-Sentence/sentencing.
ss. 121 and 121-A - 'Conspiracy to wage· war against C
Government of India' -
Explained -
Held: Once the
prosecution proves that there was a meeting of minds between
two persons to commit a crime, there would be an emergence
of conspiracy ,.... The fact that barely within minutes of the
attack, the BBC correspondents in Srinagar and Delhi were D
informed, proves that there was a definite plan and a
conspiracy - It was undoubtedly an extremely well-planned
attempt to overawe and to wage war against the Government
of India - Some of the associates of the appellant were killed
and others are absconding -
Thus, the case of the E
. prosecution that there was a conspiracy to attack the Red Fort
and kill innocent persons, was not affected even if the other
accused persons who were alleged to have facilitated and
helped the appellant, were acquitted.
Sentence/Sentencing:
Rarest of rare case - Attack on Indian Army stationed in
Red Fort· - Three soldiers killed by intruders - HELD: High
court concurred with the finding of the trial court that this was
F
a rarest of the rare case - This was a unique case where Red G
Fort, a place of paramount importance for every Indian heart
was attacked where three Indian soldiers lost their lives - It
was a blatant, braze,nfaced and audacious act aimed to over
awe the Government of India - Therefore, this case becomes
a rarest of rare case - This was nothing but an undeclared H
58
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
war by some foreign mercenaries like the appellant and his
other partners, in conspiracy, who either got killed or escaped
- The Court is in complete agreement with the findings
regarding the incriminating circumstances as recorded.by the
High Court - The case satisfies both the tests, namely,
s shocking the conscience of the community and crime of
enormous proportion, as multiple murders were also
committed - The senten

## Text

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A
B
[2011] 10 S.C.R. 56
MOHD. ARIF @ ASHFAQ
v.
STATE OF NCT OF DELHI
(Criminal Appeal Nos. 98-99 of 2009)
AUGUST 10, 2011
[V.S. SIRPURKAR AND T. S. THAKUR, JJ.)
CONSTITUTION OF IND/A, 1950:
C
Article 136 - Scope of - Held: Supreme Court ordinarily
does not go into the appreciation of evidence, particularly,
where there are concurrent findings of facts - However, the
Court examined the oral and documentary evidence not only
relating to the appellant, but also to the other accused persons
- As a result, the Court is of the view that the courts below
D have fully considered the oral and documentary evidence for
coming to the conclusions that ther did.
PENAL CODE, 1860
E
ss. 121, 121-A, 120-8 rlw s. 302, 18613531120-8, 4681471
and 4201120-8 - Conspiracy to wage war against and to
overawe Government of India - Red Fort attack -
Three
soldiers killed by intruders - Circumstantial evidence -
Appellan.t-accused, a Pakistani national and member of an
F
international terrorist organization, apprehended on the basis
of a cell phone number - On his disclosure statements,
sophisticated weapons used in the attack, hand grenades,
diary etc. recovered leading to police encounter of his
associate and seizure of documents from the office of a
'hawa/a' dealer (absconding) - Some accused absconding
G and three killed in encounters - Conviction of appellantaccused and sentence of death awarded by trial court,
confirmed by High Court - Other accused acquitted by High
Court - HELD: The offence of conspiring to wage a war is
proved to the hilt against the appellant, for which he has been
H
56
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
57
DELHI
· rightly held guilty of the offence punishable u/s. 121 and 121A
A, /PC - The appellant is also rightly held guilty of the offence
punishable u/s. 120-B rlw s. 302, /PC - 7 he High Court rightly
came to the conclusion that the appellant was responsible for
the incident. of shooting inside the Red Fort on the night of
22.12.2000, which resulted in the death of three soldiers of B
Army - The Court agrees with the verdict of the trial court as
well as the High Court-Arms Act, 1959 - s. 25 - Explosive
Substances Act, 1908 - s. 4 - Foreigners Act, 1946 - s. 4 -
evidence - Circumstantial evidence-Sentence/sentencing.
ss. 121 and 121-A - 'Conspiracy to wage· war against C
Government of India' -
Explained -
Held: Once the
prosecution proves that there was a meeting of minds between
two persons to commit a crime, there would be an emergence
of conspiracy ,.... The fact that barely within minutes of the
attack, the BBC correspondents in Srinagar and Delhi were D
informed, proves that there was a definite plan and a
conspiracy - It was undoubtedly an extremely well-planned
attempt to overawe and to wage war against the Government
of India - Some of the associates of the appellant were killed
and others are absconding -
Thus, the case of the E
. prosecution that there was a conspiracy to attack the Red Fort
and kill innocent persons, was not affected even if the other
accused persons who were alleged to have facilitated and
helped the appellant, were acquitted.
Sentence/Sentencing:
Rarest of rare case - Attack on Indian Army stationed in
Red Fort· - Three soldiers killed by intruders - HELD: High
court concurred with the finding of the trial court that this was
F
a rarest of the rare case - This was a unique case where Red G
Fort, a place of paramount importance for every Indian heart
was attacked where three Indian soldiers lost their lives - It
was a blatant, braze,nfaced and audacious act aimed to over
awe the Government of India - Therefore, this case becomes
a rarest of rare case - This was nothing but an undeclared H
58
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
war by some foreign mercenaries like the appellant and his
other partners, in conspiracy, who either got killed or escaped
- The Court is in complete agreement with the findings
regarding the incriminating circumstances as recorded.by the
High Court - The case satisfies both the tests, namely,
s shocking the conscience of the community and crime of
enormous proportion, as multiple murders were also
committed - The sentence of death awarded by courts below
is upheld - Penal Code, 1860 - s.121, 121-A, 120-B/302.
c
EVIDENCE:
Circumstantial evidence - Principles explained - Red
Fort attack - HELD: Cartridge cases found inside the Red Fort
and AK 56 rifles found outside, established that the attack was
made by intruders with sophisticated weapons -Accused
0
apprehended on the basis of a cell phone number - He being
a Pakistani national, had got a ration card, a driving licence,
opened bank accounts on fake addresses and identities,
opened a computer centre, married an Indian citizen just 15
days before the attack - Before and after the attack he
received calls from Pakistan and made calls to BBC
E
correspondents in Delhi and Srinagar -
A number of
incriminating articles including a pistol recovered from his .
possession and hand grenades recovered at his instance -
On his disclosure statement Police reached his associate
who was then killed in an encounter - It is obvious that the
F
appellant was a very important wheel in the whole machinery
which was working against the sovereignty of this country, and
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 - Prosecution was
G successful in establishing the circumstances against the
appellant, individually, as well as, cumulatively - Penal Code,
1860 - ss. 121, 121-A, 120-B rlw s. 302 /PC.
INVEST/GA TION:
H
Disclosure statement of accused and recoveries of
MOHD. ARIF@ ASHFAQ v. STATE OF NCT OF
59
DELHI
incriminating articles - 'Arresting' of accused and recording A
of his statement - Held: The accused being in custody of the
investigating agency, he need not have been formally arrested
- It is enough if he was in custody of the investigating agency,
meaning thereby, his movements were under the control of
the investigating agency - As regards the failure to record the
B
information, it must be held that it is not always necessary -
The essence of the proof of a discovery uls. 27, Evidence Act
is only that it should be credibly proved that the discovery
made was a relevant and material discovery which proceeded
in pursuance of the information supplied by the accused in c
the custody - Therefore, there is nothing wrong with the
discovery.even if it is assumed that the information was not
"recorded" and it is held that immediately after the accused
had been apprehended, he gave the information which was
known to him alone and in pursuance of which a very material D
discovery was made - However, in the instant case, there is
evidence that the accused was "arrested" and his disclosure
statement was recorded - Evidence Act, 1872 - s.27.
Role of investigating agency -Held: The investigation in
the instant case was both scientific and fair investigation -
E
· This was one of the most difficult cases to be investigated as
: there could have been no clue available to the investigating
agency - The small thread which became available to the
investigating agency was the chit found alongwith some Indian
currency at the back of the Red Fort in a polythene packet -
F
Compliments must be paid to the Investigating Officer as also
to all others associated with the investigation for being
objective and methodical in their approach - It has to be
borne in mind that not a single incide,nce of ill-treatment to
the appellant was reported or proved - Again, the timely G
recording of the D.D. Entries, scientific investigation using the
computer, the depth of investigation and the ability of the
investigating agency to reach the very basis of each aspect,
lend complete credibility to the fairness of the investigation.
H
60
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
.;R/MINAL TRIAL:
Role of trial court and High Court - Held: In the instant
case, compliments must be paid to the trial court and the High
Court - The trial held before the trial Judge was the epitome
of fairness, where every opportunity was given to the accused
8
persons and more particularly, to the appellant - Similarly,
the High Court was a/so very fair in giving all the possible
latitude and in giving patient hearing to the accused-appellant.
The appellant, a Pakistani national and a member of
C an international terrorist organization known as Lashkare-Toiba (LeT), alongwith others, was prosecuted for the
attack on the Red Fort. The prosecution case was that
in furtherance of a conspiracy to overawe India by
terrorist activities in different parts of the country and to
o fulfil that object the accused-appellant and his fellow
terrorists had planned an attack on Army stationed inside
the Red Fort. In order to execute the plan, some intruders
entered the Red Fort at about 9.00 p.m. on 22.12.2000 and
started indiscriminate firing and gunned down one sentry
E and two other Army personnel and when the Quick
Reaction Team returned the firing, the intruders escaped
by scaling over the rear side boundary wall of the Red
Fort. During investigation and search, the police found a
polythene packet which had fallen down from the p"acket
F
of one of the intruders while scaling down the rear wall
of the Red Fort. The said packet contained some
currency notes and a piece of paper (Ext. PW-183/3) on
which a mobile no. 9811278510 was mentioned. This
mobile number led to the arrest of the appellant and on
his statement the police caught 10 more persons. The trial
G court convicted the appellant u/ss. 120-B, 121, 121-A, 186/
353/120-B, 120-B read with s.302, ss. 468/471/474, 420/
120-B IPC, s. 25 of Arms Act, s. 4 of Explosive
Substances Act and s. 4 of Foreigners Act. He was, inter
a/ia, awarded death sentence u/s 121 IPC for waging was
H against the Government of India. He was also awarded
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
61
DELHI
death sentence u/s 120-B r/w s.302 IPC. The other. A
accused convicted by trial court of various offences were
acquitted by the High Court. However, the High Court
confirmed the conviction and death sentence of the
appellant.
Dismissing the appeal, the Court
B
HELD: 1. This Court ordinarily does not go into the
appreciation of evidence, particulal'ly, where there are
concurrent findings of facts. This Court has very closely
examined the judgments of both the courts below and C
found that there is a thorough discussion as regards the
evidence, oral as well as document;3ry, and it was only
after a deep consideration of such evidence that the trial
court and the appellate court have come to the concurrent
finding against the appellant. In order to see as to D
whether the acquittal of other accused persons can be
linked to the verdict against the appellant, and inspite of
the fact that there has been a concurrent verdict against
the appellant, this Court examined the oral and
documentary evidence not only relating to the appellant, E
but also to the other accused persons. As a result, this
Court is of the view that the courts below have fully
considered the oral and documeintary evidence for
coming to the conclusions that they did. In view of the
concurrent findings, the scope to interfere on the basis F
of some insignificant contradictions cir some microscopic
deficiencies would be extremely limited. (Para 17] (95-DH; 96-A]
2.1 From the clear evidence of PW-189, PW-126, PW131, PW-134, PW-144 and PW-77, it is evident that some G
intruders had run away after firing inside the Red Fort and
that they had gone towards the Ring Road. The evidence
of all these witnesses is trustworthy. The related
document is Ext. PW-77/A which lends full support to the
version and suggests that there was an incident of H
62
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A shooting in the Red Fort. The post mortem was
conducted on the three bodies by 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. [para 18] [96-H; 97-A-D; 98-D-E]
B
.2.2 A number of incriminating articles were found, the
most important of the same being the empties of .the
bullets fired by the intruders and the arms seized. It is
very significant that the prosecution has been able to
connect the bullets with the arms seized by them. One
C of the two rifles was found near Vijay Ghat from the
bushes while other (Ext. PW 62/1) was recovered at the
instance of appellant on 26.12.2000. The prosecution has
examined three ballistic experts, namely, PW-202, PW-206
and PW-211. Their reports were proved by PW-202 as
D Exhibits 202/A and 202/C. He duly proved and identified
the cartridges which were test fired in the laboratory. It
is clearly established that the cartridges cases found
inside the Red Fort were fired f~om the two rifles which
were found outside the Red Fort. This witness had also
E examined 11 empties of the self-loading rifles used by the
army men while firing towards intruders, and had clearly
opined that those empties could not have been loaded
in AK-56 rifles examined by him. Thus, the prosecution
has thoroughly proved the nexus between the cartridge
F
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
G abandoned by the intruders outside the Red Fort. Further,
the recovery of bandoliers and hand grenades goes a
long way to prove that the incident which took place
inside the Red Fort was at the instance of the intruders.
Further, there is the evidence of PW-206 who had
H examined the rifle found at Balla House during an
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
63
DELHI
encounter in which the other terrorist was killed. That A
recovery is not seriously disputed. It is, therefore, held that
the ghastly incident of shoot out did take place at the
instance of some intruders inside the Red Fort, in which
three persons lost their lives. [Para 18-21] [98-F; 99-B-E;
100-C-H; 101-C-D]
B
2.3 As regards the recovery of the polythene bag
containing currency notes and a slip with a mobile
number in the morning of 23.12.2000, this Court confirms
the finding of the trial court and the High Court that the
said polythene bag containing the currency notes and the C
slip on which the cell phone number was mentioned, was
actually found on the spot abutting the backside wall of
the Red Fort. This Court accepts the finding by the trial
court and the High Court that this polythene bag must
have slipped from a person who scaled down to the D
ground. [Para 22] [102-B·C; 105-F-H]
3.1 The investigation based on the mobile number i.e.
9811278510 written on the slip found in the polythene bag
led to locate the computer centre run by the accusedE
appellant and the flat where he was c:1pprehended in the
night of 25.12.2000. One pistol 7.6~1 mouser, six live
cartridges, a diary and a mobile phone bearing no.
9811278510 were recovered from his possession. He did
not have any licence for this pistol. This is supported by
F
the police record and the recovery witnesses (PW-148).
After the accused-appellant was apprehended, he
disclosed that his associate (A-21) was staying at his hide
out at Batra House. This has come in the evidence of
Inspector PW-229. There is absolutely no reason to disbelieve this evidence of apprehension of the accused by G
the police team which is also supported by documentary
evidence. There is also no doubt that the apprehension
of the accused was possible only because of the
scientific investigation done by the inspector of Police
H
64
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
(PW-229). [Para 28,29,31,34 and 44) [108-E; 112-D-E; 113·
A·B]
3.2 It is clear that telephone No.9811278510 was used
on the relevant date on 22.12.2000 for claiming the
8
responsibility of the attack in Red Fort. This situation
almost clinches the issue. From the evidence of PW-150
who proved Ext. PW-150/B, and PW-198 Ext. PW-198 / B1
to B3, the prosecution has been successful in
establishing that the cell phone No.9811278510 was used
for making the calls to BBC correspondents in Srinagar
C and Delhi. In these calls, the caller who was handling that
cell phone not only informed about the attack on the Red
Fort but also owned the responsibility of LeT therein. The
inter se connection between this cell phone and cell
phone No.9811242154 is also clearly established by the
D witness PW-198 on the basis of IMEI number used in that
cell phone. He had also established that these calls to the
BBC were made from the vicinity of the Red Fort. [Para
36-37] [121-C·G]
E
3.3 This Court, therefore, accepts that cell phone
No.9811278510 was used at a very crucial point of time
i.e. between 9 to 9.30 p.m. at night on the day when the
attack took place at or about the same time on Red Fort
wherein three innocent persons were killed. This Court
also confirms the finding by the trial court and the
F
appellate court that it was this mobile number which was
found with the appellant when he was arrested. The other
corroborating evidence connecting the two mobile
numbers namely, 9811278510 and 9811242154 and the
IMEI Nos.44519944090240 and 449173405451240 and
G their interconnection with phone No.011 3355751 of BBC,
Delhi, 2452918 (BBC, Srinagar), ·2120223 of 'F' (sister of
appellant's wife) and phone No.6315904 at computer
centre is to be found in the evidence of PW-198, PW-229
and PW-230. The attempt of the investigating agency in
H analyzing the call details of these two numbers
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
65
DELHI
succeeded in establishing the connection of these two
A
numbers with the number of BBC correspondent at
Srinagar, the number of BBC correspondent at Delhi, the
number at 'F's residence and the number at the computer
centre. But for this careful and meticulous analysis which
was of very high standards, it would not have been
B
possible to apprehend the appellant and to de-code the
intricate and complicated maze of the conspiracy. [Para
37) [122-F-H; 123-A-E]
.
3.4 The circumstance which makes these mobile cell
phones significant was the evidence of the Inspector of C
Police (PW-229) who asserted that the mobile
No.9811278510 was constantly used on 14.11.2000 to
make calls to Pakistan. (The appellant is admittedly a
Pakistani
national and was staying in
India
unauthorizedly). He has further asserted that calls from
D
Pakistan were received on mobile number 9811278510 as
also calls from this number were made to BBC
correspondents in Delhi and Srinagar, when that mobile
number was at different places heading to Red Fort on
22.12.2000. There is no reason to dis-believe this
E
evidence which was collected so painstakingly. What is
most significant in this evidence is that this very cell ·
phone number was used to make the calls to and receive
the calls from Pakistan. [Para 39-40) [123-H; 124-A-C; 125A-H; 126-H]
F
3.5 The next significant circumstance is the evidence
of PW-162 who was posted at Rajouri on 26.12.2000 and
. on that day a message was intercepted by BSF to the
effect that a wanted militant in the shoot-out inside Red
Fort case known as 'AA' was apprehended while other G
militant was killed. According to this witness this
message was being passed by a militant called 'AS' of
LeT, to a station in Khyber in Pakistan Occupied Kashmir.
He proved the document as Ext. PW-1.62A. The other
H
66
SUPREME COURT REPORTS
[2011] 10 S.C.R
A witness on this point is Constable, BSF Head Quarters
Srinagar (PW-175). [Para 41] [126-B-D]
3.6 All the voluminous evidence would not only
corroborate the prosecution version to show the
8 significant role played by the appellant in handling both
the cell phone numbers. It is of no minor significance that
on the apprehension of the appellant the news should
reach Srinagar and from there to Pakistan Occupied
Kashmir by way of wireless messages not only about the
involvement of the appellant but also about 'AS' who was
C killed in the encounter as also 'AB' who was a proclaimed
offender and was then killed in another encounter. [Para
41] [127-B-D]
4.1 There are some other significant circumstances
o relied on by the prosecution to show that the appellant,
who admittedly was a Pakistani national and had
unauthorizedly entered India, wanted to establish his
identity in India and for that purpose, he got prepared a
fake and forged ration card and on that basis, applied for
E and got a driving license and also opened bank
accounts. This was established by the evidence of PWs
1,2,3,7,16,164,165,172, 174,20,31,44,36,56 and 11~ and
163. The only purpose in doing this was to establish that
he was living in Delhi legitimately as an Indian national.
F Thus, not only did the appellant got for himself a fake and
forged ration card, but on this basis, also got prepared a
fake learning license, in which also, he gave a false
residential address. All this was obviously with an idea
to screen himself and to carry on his nefarious activities
G in Indian cities. Therefore, it is held that the appellant used
a forged ration card and got a driving license giving a
false address. [Para 49-52] [135-E-F; 136-A-H; 137-E-H;
138-A-D]
4.2 The evidence of PW-21, establishes the
H connection of the appellant with Batala House, where the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
67
DELHI
encounter took place in which the appellant's companion
A
(A-21) was killed. This is further corroborated by the
evidence of PWs 232, 20, 31, 21. Needless to say that he
used all these witnesses to his own benefit for carrying
out his evil design in pursuance of the conspiracy. He
got married to 'RYF' barely a fortnight prior to the incident
B
at the Red Fort. (Para 54, 55 and 58] (139-G; 140-A-F; 145G-H; 146-A]
5.1 The prosecution has also brought out the material
about the calls made to a Hawala dealer (A-13). The
·investigating agency raided his house on 12.01.2001 on
C
the information received from the appellant. Very
significantly, the documents seized at the office of A-13,
included a Visa of Islamic Republic of Pakistan and an
identity card of NllT etc. The seizure memo is proved by
PW-83, who at the relevant time was working in the
D
Directorate of Enforcement as the Chief Enforcement
Officer and deposed that the appellant in his presence
identified the photograph to be of the hawala dealer and
accepted that he used to deliver hawala money.
Therefore, this evidence is also extremely significant to
E
support the role played by the appellant in the
conspiracy. [Para 42] (127-E-H; 128-A-C]
F
5.2 The Hawala dealer (A-13) was found to be an
Afghan national and according to the prosecution, he
used to supply Hawala money to the appellant.
According to the prosecution, the appellant used to
deposit the money so received in his own account with
HDFC Bank, opened on the basis of fake documents. He
also used to deposit this money in two bank accounts
of original accused No.3 and 4. According to the
G
prosecution, this money was distributed to the other
terrorists in Srinagar. It cannot be disputed that the
appellant had connection wtth A-13 who remained
absconding till date. This has been established by the
evidence of PW-210, PW-79, PW-230, PW-6, PW-52, PWH
68
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A 16, PW-1, PW-2, PW-3, PW-216 and the related
documentary evidence. There is absolutely no
explanation by the appellant either by way of crossexamination of the witnesses or by way of his statement
u/s. 313 Cr.P.C. as to where all the amounts had come
B from and why did he deposit huge amounts of
Rs.29,50,000/- in the three accounts. Further very
sizeable amount is shown to have been paid to 'RYF' in
her account in the State Bank of India. It would have to
be held that the appellant was dealing with huge sums
c of money and he has no explanation therefor. This is
certainly to be viewed as an incriminating circumstance
against the appellant. High Court as well as the trial Court
were right in drawing the inferences in respect of these
deposits made by the accused. It is obvious that the
0 appellant was a very important wheel in the whole
machinery which was working against the sovereignty of
this country, and 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. The acquittal of other accused would
E be of no consequence. [Para 60-65] [146-C-E; 152-G-H;
153-A-E, G]
6.1 It will be seen that immediately after the
apprehension the appellant was not formally arrested,
F though he was in the custody of the investigating team .
. PW-229 had undoubtedly stated that the accused was
"arrested" and his disclosure statement was recorded.
There is other evidence on record that his statement was
recorded. It is indeed in that statement which is recorded
G that he disclosed about his involvement in the Red Fort
shoot out, the role of his associate 'A-21' and about an
AK-56 rifle. The witness went on to state further that the
accused disclosed that his associate 'A-21 was staying
in the hide out at Batla Hoase. He also disclosed that he
H was having weapons and grenades and he also disclosed
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
69
DELHI
that A-21 was a trained militant of LeT and member of A
suicide squad .. Indeed, in pursuance of this information
given, the investigating team did go to the mentioned
address and an encounter did take place wherein A-21
was killed and large amount of ammunition and arms
were found at that place. [Para 66] [156-8-G]
B
6.2 It is indeed true that normally for proving any
such information and attributing the same to the accused,
he must be in custody of the prosecution and, and such
when he discloses or offers to disclose any information,
his statement is recorded by the investigating agency for C
lending credibility to the factum of disclosure as also
exactitude. However, in the instant case, it was indeed a
very tense situation requiring extreme diligence on the
part of the investigating agency and it could not afford
to waste a single minute and was required to act D
immediately on the receipt of the information from the
appellant. This was all the more necessary because the
investigating agency were dealing with an extremely
dangerous terrorist causing serious danger to the safety
of the society. There is nothing wrong in the approach
E
on the part of the investigating agency. What is significant
is that the events which followed do show that it is only
in pursuance of, and as a result of the information given
by the accused that the investigating agency zeroed on
the given address only to find a dreaded terrorist like AF
21 holed up in that address with huge ammunition and
the fire arms. In this view of the matter, the· discovery
evidence can not be rejected merely because, a formal
statement was not recorded and further merely because
a formal arrest was not made of the accused. [Para 67]
G
[157-B-G]
6.3 Besides, the accused being in custody of the
investigating agency, he need not have been formally
arrested. It is enough if he was in custody of the
H
70
SUPREME COURT REPORTS
[2011] 10 S.C.R
A investigating agency meaning thereby his movements
were under the control of the investigating agency. A
formal arrest is not necessary and the fact that the
accused was in effective custody of the investigating
agency is enough. It has been amply proved that the
~ accused was apprehended, searched and taken into
custody. In that search the investigating agency
recovered a pistol from him along with live cartridges,
which articles were taken in possession of the
investigating agency. This itself signifies that immediately
c after he was apprehended, the accused was in effective
custody of the investigating agency. [Para 68) [157-H;
158-A-B]
6.4 As regards the failure to record the information,
it must be held that it is not always necessary. The
D essence of the proof of a discovery u/s. 27, Evidence Act
is only that it should be credibly proved that the
discovery made was a relevant and material discovery ·
which proceeded in pursuance of the information
supplied by the accused in the custody. How the
E prosecution proved it, is to be judged by the court and if
the court finds the fact of such information having been
given by the accused in custody to be credible and
acceptable even in the absence of the recorded
statement and in pursuance of that information some
F material discovery has been effected then the aspect of
discovery will not suffer from any vice and can be acted
upon. [para 69) [158-D-G]
6.5 In the instant case, immediately after the
apprehension of the appellant, he spilled the information.
G In pursuance of that information the investigating agency
1
acted with expediency and speed which in the
circumstances then prevailing was extremely necessary
nay compulsory. Ultimately, this timely and quick action
yielded results and indeed a dreaded terrorist was found
H holed up in the address supplied by the appellant-
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
71
DELHI
accused with sizeable ammunition and fire arms.
A
Therefore, there is nothing wrong with the discovery
even if it is assumed that the information was not
"recorded" and it is held that immediately after the
accused had been apprehended, he gave the information
which was known to him alone and in pursuance of
B
which a very material discovery was made. [Para 69]
[158-G-H; 159-A-E]
Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl.
SCR 483 = 1995 Suppl (1) SCC 80; Vikram Singh & Ors v.
State of Punjab 2010 (2) SCR 22 = 2010 (3) SCC 56; State
C
of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 - relied
on
6.6 Section 27 of the Evidence Act is founded on the
principle that even though the evidence relating to the
D
confessional or ot~er statements made by a person
while he is in the custody of the police officer, is tainted
and, therefore, inadmissible; if the truth of the information
given by him is assured by the discovery of a fact, it may
be presumed to be untainted and, therefore, declared
E
provable insofar as it distinctly relates to the fact thereby
discovered. [Para 69] [161-C-F]
State (NCT of Delhi) v. Navjof Sandhu @ Afsan Guru
2005 (2) Suppl. SCR 79 = 2005 (11) SCC 600; Pu/ukuri
Koffaya v. King Emperor AIR 1947 PC 67 - relied on
F
6.7 In the instant case, it is only because of the
· discovery made by the appellant that A-21 with the arms
and ammunition was found at the address disclosed by
the appellant. By the discovery made and recorded on
G
the morning of 26.12.2000, the appellant had not only
given the information about the whole plot, but in
addition to that, he had also showen his readiness to
point out the AK-56 rifle which was thrown behind the
Red Fort immediately after the attack. In pursuance of that,
H.
72
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A the appellant proceeded alongwith the investigating party
and then from the spot that he had shown, AK-56 rifle
was actually found. Even a bandolier was found
containing hand grenades. In this regard, the evidence
of Inspector PW-228 (Ext. PW 218, S.I. PW-218, S.I. PWB 227, PW-125, PW 202 and SHO PW-234 is relevant, who
all supported the discovery. This discovery was recorded
by Ext PW-148/E. and was fully proved. [Para 69-70) [162A-H]
6.8 The disclosure statement of the appellant led to
C recovery of the hand grenades brought from Pakistan
and one AK-56 assault rifle. The seizure memo Ext. PW168/B, the disclosure statement Ext. PW-168/D and the
evidence of S.I. PW-218, S.I. PW-227 and Inspector PW228 are relevant in this respect. There is nothing to
D disbelieve this discovery. The hand grenades were
identified and their potency was proved by PW-202.
Considering the peculiar nature of this case, the
discovery of grenades at the instance of the appellant is
accepted. Same thing can be stated about the earlier
E discovery dated 26.12.2000 of the AK-56 Assault Rifle,
magazines, bandoleiries etc. Therefore, the formal arrest
of the appellant and the recoveries effected thereafter or
the seizure memos executed cannot be viewed with
suspicion. [Para 47-48) [132-G-H; 134-E; 130-D]
F
6.9 As regards the discovery of the hand grenades
on 1.1.2001 at the instance of the appellant, the defence
did not even attempt to say that there was anything
unnatural with this recovery. T~us, the discovery
statements attributed to the appellant and the material
G discovered in pursuance 'thereof would fully show the
truth that the appellant was involved in the whole affair.
The discovery of hand grenades behind the computer
centre was very significant. So also the discovery of the
shop of A-13, the Hawala dealer, as also the documents
H discovered therefrom, show the involvement of the
MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF
73
DELHI
appellant in the whole affair. In this. behalf, the findings
A
of the High Court are fully endorsed. [para. 71] [164-D-G]
6.1 O As regards the plea that no public witnesses
were associated, in fact; there is ample evidence on
record to suggest that though the investigating agency
8
made the effort, nobody came forward. This was all the
more so, particularly, in case of the recovery of pistol
from the appellant as also the discoveries vide Exhibit
PW-148/E. Beside, if the general public refused to join the
investigation to become Panchas, that cannot be viewed C
as a suspicious factum and on that basis, the
investigative agency cannot be faulted. After all, what is
to be seen is the genuineness and credibility of the
discovery. The police officers, who were working day and
night, had no reason to falsely implicate the appellant.
Again, the Court.cannot ignore the fact that the factum
D
of discovery has been accepted by both the Courts
below. [Para 48 and 71] [133-H; 134-A-H; 135-C-D; 164D-G]
Suresh Chandra Bahri v. State of Bihar 1994 ( 1 ) Suppl.
E
SCR 483 = 1995 Suppl (1) sec 80 - relied on
7 .1 In addition to these circumstances, there is
another circumstance that a message dated 26.12.2000
was intercepted by the BSF while Ext. PW 162/A and
proved by Inspector PW-162 wherein there was a specific
F
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, and also deposited some amounts in the
account of 'RYF' and he had no explanation of these G
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
PW-20. [Para 73] [169-G-H; 170-A-B]
H
74
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
7.2 The detailed statement u/s. 313 CrPC which the
accused gave at the end of the examination was a myth
and remained totally unsubstantiated. The defence
evidence of DW-1 has no legs ~o stand. DW-1 spoke about
the marriage of her daughter 'RYF' to the appellant. Very
B strangely, she completely denied that she even knew that
the appellant was a resident of Pakistan. Much
importance, therefore, cannot be given to this defence
witness. However, she admitted that moneys were paid
into the account of 'RYF'. [Para 72) [165-A-D]
c
7.3 This Court is in complete agreement with the
findings regarding the incriminating circumstances as
recorded by the High Court. The High Court rightly came
to the conclusion that the appellant was responsible for
the incident of shooting inside the Red Fort on the night
D 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 A-21, who was killed in an encounter with the
E police at Batla House. The High Court held that the
associates, with whom the appellant had entered into
conspiracy, had attacked the Army Camp inside the Red
Fort, which suggests that there was a conspiracy to wage
war against the Government of India, particularly,
F because in that attack, sophisticated arms like AK-47 and
AK-56 rifles and hand grenades were used. [Para 74]
[170-C-H; 171-A-C]
8.1 The law on the circumstantial evidence is, by now,
settled. There can be no dispute that in a case entirely
G 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
H convicting the accused thereby has to satisfy itself
MOHD. ARIF @ ASHFAQ v. STATE OF NC'T OF
75
DELHI
.
completely that there is no other inference consistent with
A
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. [Para 75 and 76] [170-C-E; 173B
D-E]
Sharad Birdhichand Sarda Vs. State of Maharashtra
1985 (1 ) SCR 88 = 1984 (4) SCC 116; Tanviben Pankaj
Kumar Divetia Vs. State of Gujarat 1997 (1) Suppl.
SCR 96 = 1997 (7) SCC 156; State (NCT of Delhi) Vs. Navjot C
Sandhu@ Afsan Guru 2005 (2) Suppl. SCR 79 = 2005 (11)
SCC 600; Vikram Singh & Ors. Vs. State of Punjab 2010 (2)
SCR 22 =2010 (3) SCC 56, Aftab Ahmad Anasari Vs. State
of Uttaranchal 2010 (1) SCR 1027 = 2010 (2) SCC 583 -
relied on
D
8.2 In the instant case, the prosecution was
successful in establishing the circumstances against the
appellant, individually, as well as, cumulatively. There
indeed cannot be a universal test applicable commonly
E
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. It is the quality of each
individual circumstance that is material and that would
F
essentially depend upon the quality of evidence. Clear
and irrefutable logic would be an essential factor in
· arriving at the verdict of guilt on the basis of the proved
circumstances. The instant case is such, as would pass
au the tests so far devised by this Court in the realm of
criminal jurisprudence. [Para 76] [173-G-H; 174-A-C]
G
9.1 It cannot be said that the appellant has suffered
a prejudice on account of his being a Pakistani national.
The investigation in the instant case was both scientific
and fair investigation. This was one of the most difficult
H
76
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A cases to be investigated as there could have been no
clue available to the investigating agency. The small
thread which became available to the investigating
agency was the chit found alongwith some Indian
currency at the back of the Red Fort wall in a polythene
B packet. Compliments must be paid to the Investigating
Officer PW-230 as also to all the other associated with the
investigation for being objective and methodical in their
approach. It has to be borne in mind that not a single
incidence of ill-treatment to the appellant was reported or
c proved. Again, the timely recording of the D.D. Entries,
scientific investigation using the computer, the depth of
investigation and the ability of the investigating agency
to reach the very basis of each aspect lend complete
credibility to the fairness of the investigation. [Para 77]
D [174-D-H; 175-A-B]
9.2 Similar is the role played by the trial court and the
High Court. It could not be distantly imagined that the
courts below bore any prejudice. The trial held before the
trial Judge was the epitome of fairness, where every
E opportunity was given to the accused persons and more
particularly, to the appellant.