2011 Supreme(SC) 759

2011 (5) Supreme 646
SUPREME COURT OF INDIA
V.S. Sirpurkar and T.S. Thakur, JJ.
Mohd. Arif @ Ashfaq — Appellant
versus
State of NCT of Delhi — Respondent
Criminal Appeal Nos. 98-99 of 2009
Decided on : 10-8-2011

IMPORTANT POINTS
A formal arrest is not necessary and the fact that the accused was in effective custody of the investigating agency is enough.
2. It is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the court is in a position to find that two or more persons were actually concerned in the criminal conspiracy.
3. In a case entirely dependent on circumstantial evidence, responsibility of prosecution is more as compared to the case where the ocular testimony or the direct evidence, as the case may be, is available.

Headnote:Indian Penal Code,1860-Sections120-B, 121 and 121-A, 186,353, 302, 468/471/474, 420 read with section 25 of Arms Act, Section 4 of the Explosive Substances Act and Section 14 of the Foreigners Act-Prosecution of appellant along with others for entering area of Lal Quila where Unit of 7 Rajputana Rifles of Indian Army was stationed on the night of 22-12-2000 and for firing indiscriminately from their AK-56 rifles as a result of which three army jawans received fire-arm injuries and lost their lives-Conviction by Trial Court awarding death sentence to appellant -Appeal-Dismissed by High Court-Appeal-High Court proved certain circumstances against appellant- Immediately after incident when place of occurrence was searched by armymen many assault rifle fired cartridge cases were recovered from the place of occurrence- Immediately after intruders escaped calls were made by someone on telephones of two BBC correspondents and caller informed them about shooting incident inside Lal Quila and claimed responsibility of that incident and that that was the job of Lashkar-E-Toiba- 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- Policemen found one piece of paper lying outside Lal Quila and on that piece of paper one mobile phone number 9811278510 was written-Said mobile phone number 9811278510 was used for making calls to two BBC correspondents-At the time of his arrest mobile phone having the number 9811278510 was recovered from possession of appellant- Immediately after his apprehension appellant admitted his involvement in the shooting incident inside Lal Quila and also disclosed to police about his another hide-out where the occupant of that house started firing upon the police team and when the police team returned firing that person, co-accused died because of firing resorted to by policemen- From said hideout , one AK-56 rifle and some live cartridges and hand grenades were recovered-Appellant got recovered three hand grenades from some place behind his computer centre pursuant to his another disclosure statement while in police custody-Report of Ballistic expert that some of the assault rifle fired cartridge cases had been fired from rifle recovered from behind Red Fort and some had been fired from the other rifle which was recovered from Vijay Ghat- Impugned judgment of trial Court and High Court convicting accused and awarding death sentence held liable to be confirmed-Appeals dismissed (Paras 73, 74, 84)

        Indian Penal Code,1860-Sections120-B, 121 and 121-A, 186,353, 302, 468/471/474, 420 read with section 25 of Arms Act, Section 4 of the Explosive Substances Act and Section 14 of the Foreigners Act-Prosecution of appellant along with others for entering area of Lal Quila where Unit of 7 Rajputana Rifles of Indian Army was stationed on the night of 22-12-2000 and for firing indiscriminately from their AK-56 rifles as a result of which three army jawans received fire-arm injuries and lost their lives-Conviction by Trial Court awarding death sentence to appellant -Appeal-Dismissed by High Court-Appeal-Appellant was a Pakistan national and had entered Indian territory illegally-Appellant obtained a forged ration card and a forged learner driving license - All that he did was to conceal his real identity as a militant having entered Indian territory with the object of spreading terror with the help of his other associate militants whom unfortunately police could not apprehend and some expired before they could be tried- High Court rightly held that appellant was responsible for 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- High Court further held that he chose to select the Red Fort for an assault alongwith his other associates, the Red Fort being a place of national importance for India- High Court hence, deduced that it was an act of waging war against Government of India-Impugned judgment of trial Court and High Court convicting accused and awarding death sentence held liable to be confirmed-Appeals dismissed (Paras 74, 84)

        Circumstantial evidence-There can be no dispute that in a case entirely dependent on circumstantial evidence, responsibility of 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 circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with innocence of 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 cumulative effect thereof- In doing this, 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 guilt on the part of accused (Para 76)

        Indian Penal Code,1860-Sections120-B, 121 and 121-A, 186,353, 302, 468/471/474, 420 read with section 25 of Arms Act, Section 4 of the Explosive Substances Act and Section 14 of the Foreigners Act-Conviction of appellant along with others for entering area of Lal Quila where Unit of 7 Rajputana Rifles of Indian Army was stationed on the night of 22-12-2000 and for firing indiscriminately from their AK-56 rifles as a result of which three army jawans received fire-arm injuries and lost their lives- Appeals-Plea that there could be no conviction for conspiracy in the absence of conviction of any other accused for that purpose-However said plea held unsustainable-Even though out of original 22 accused persons it was only appellant who stood convicted- However, evidence on record that many as 8 accused persons against whom the investigating agency filed a chargesheet were found to be absconding- Besides these absconding accused persons, 3 others were already dead when the chargesheet was filed against them-. The conspiracy also included the dead accused A2 who was found to be hiding and who was later killed in exchange of fire with the police- The whereabouts of A2 were known only due to the discovery statement by appellant -Indeed, the act of firing at the Army was not by a single person-Case in hand was nothing but a well planned conspiracy along with some other militants - For this conspiracy, appellant illegally entered India and he was receiving huge amounts of money to make it possible for himself to execute his design- Attack on the soldiers staying in the Army Camp at Red Fort was nothing but a war waged against the Government of India- It was clear that there were more than one person- Hence held that it was nothing but a well planned conspiracy, in which apart from appellant some others were also involved. (Paras 78, 79)

        Death sentence-Conviction of appellant and award of death sentence to him for entering area of Lal Quila along with others where Unit of 7 Rajputana Rifles of Indian Army was stationed on the night of 22-12-2000 and for firing indiscriminately from their AK-56 rifles as a result of which three army jawans received fire-arm injuries and lost their lives-Appeals thereagainst-An attack on a symbol like Red Fort was an assault on the nation’s will and resolve to preserve its integrity and sovereignty at all costs- It was a challenge not only to Army battalions stationed inside the monument but the entire nation- It was a blatant, brazenfaced and audacious act aimed to over awe the Government of India- This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self respect of great nation- It was a well thought out insult offered to question sovereignty of government of India by foreign nationals- Hence, this case became a rarest of rare case- Three persons who had nothing to do with the conspirators were killed in this case- Death sentence was held to be the only sentence in the peculiar circumstance of instant case-Appeals dismissed. (Paras 83, 84)

       Facts of the Case :

        Appellant herein in the instant case was convicted and awarded death sentence for entering area of Lal Quila along with others where Unit of 7 Rajputana Rifles of Indian Army was stationed on the night of 22-12-2000 and for firing indiscriminately from their AK-56 rifles as a result of which three army jawans received fire-arm injuries and lost their lives.

        2. Present appeals have been filed against orders passed by Courts below.

       Findings of the Court :

        High Court proved certain circumstances against appellant. Immediately after Incident when place of occurrence was searched by armymen many assault rifle fired cartridge cases were recovered from the place of occurrence. Immediately after intruders escaped calls were made by someone on telephones of two BBC Correspondents and caller informed them about shooting incident inside Lal Quila and claimed responsibility of that incident and that that was the job of Lashkar-E-Toiba. 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. Policemen found one piece of paper lying outside Lal Quila and on that piece of paper one mobile phone number 9811278510 was written. Said mobile phone number 9811278510 was used for making calls to two BBC correspondents. At the time of his arrest mobile phone having the number 9811278510 was recovered from possession of appellant. Immediately after his apprehension appellant admitted his involvement in the shooting incident inside Lal Quila and also disclosed to police about his another hide-out where the occupant of that house started firing upon the police team and when the police team returned firing that person, coaccused died because of firing resorted to by policemen. From said hideout , one AK-56 rifle and some live cartridges and hand grenades were recovered. Appellant got recovered three hand grenades from some place behind his computer centre pursuant to his another disclosure statement while in police custody. Report of Ballistic expert that some of the assault rifle fired cartridge cases had been fired from rifle recovered from behind Red Fort and some had been fired from the other rifle which was recovered from Vijay Ghat. High Court hence, deduced that it was an act of waging war against Government of India Impugned judgment of trial Court and High Court convicting accused and awarding death sentence was held liable to be confirmed. Appeals were dismissed