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SUPREME COURT OF INDIA
UDAY UMESH LALIT, CJI., S. RAVINDRA BHAT, BELA M. TRIVEDI, JJ.
Mohd. Arif @ Ashfaq – Petitioner
Versus
State (NCT of Delhi) – Respondent
Review Petition (Crl.) Nos. 286-287 of 2012, Criminal Appeal Nos. 98-99 of 2009
Decided On : 03-11-2022
(A) Indian Penal Code, 1860 – Sections 302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 and 34 – Explosive Substances Act, 1908 – Sections 4 and 5 – Arms Act, 1959 – Sections 25, 27, 54 and 59 – Indian Evidence Act, 1872 – Section 65B – Murder of soldiers by terrorists – Death sentence – Review Petition – Since instant matter pertains to award of death sentence, Court must eschew, for present purposes, electronic evidence in form of CDRs which was without any appropriate certificate under Section 65-B(4) of Evidence Act – Other circumstances on record do clearly spell out and prove beyond any doubt involvement of review petitioner in the crime – Disclosure statement was held to have been proved by 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 – There is nothing on record which can be taken to be a mitigating circumstance in favour of review petitioner – Possibility of retribution and rehabilitation is not made out from and supported by any material on record – Aggravating circumstances evident from record and specially fact that there was a direct attack on unity, integrity and sovereignty of India, completely outweigh factors which may even remotely be brought into consideration as mitigating circumstances on record – Review Petitions dismissed. (Paras 24, 26, 27, 29, 30 and 31)
(B) Indian Evidence Act, 1872 – Section 65B – Admissibility of electronic evidence – Certification under Section 65B of Evidence Act would be a pre-requisite for admissibility of an electronic record such as CDRs – Admissibility of a document which is inherently inadmissible is an issue which can be taken up at appellate stage because it is a fundamental issue – Mode or method of proof is procedural and objections, if not taken at trial, cannot be permitted at appellate stage. (Paras 15 and 20)
Facts of the case:
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. Review petitioner, who was tried for said offences, was awarded death sentence. 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.
Findings of Court:
When there is challenge to unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances. It is well accepted that cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before the death sentence is awarded.
Result : Review Petitions dismissed.
JUDGMENT :
UDAY UMESH LALIT, CJI.
1. These review petitions arise out of the judgment and order dated 10.8.2011 [Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621] 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 rearside 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, 18601 [“IPC” for short] 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 13.9.2007 [2007 SCC Online Del. 1259].
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.
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 2.9.2014 [Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737] 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 reco
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