2004 (1) Crimes 227
DELHI HIGH COURT (DB)
Usha Mehra and Pradeep Nandrajog, JJ.
State - Appellant
versus
Mohd. Mzal & Ors. - Respondents
Murder Reference No. 1 of 2003 and Crl.
A. Nos. 43, 36, 19, 12, 59, 80 of 2003
Decided on 20/29-10-2003

Important points
1. In case of terrorist attack on Parliament House, for the offence of waging war, accused Mohd. Afzal and accused Shaukat Hussain Guru deserve the penalty of death sentence.
2. Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. ­
3. It is settled law that where the prosecution has otherwise successfully established facts which are stated in a confessional statement, it would be a good ground to presume that the confessional statement was voluntary.

Headnote:(i) Criminal Procedure Code, 1973 - Sections 366, 367 - Death sentence - Confirmation by High Court before it being executed Powers of High Court to make further enquiry and receive additional evidence - Duty of High Court to satisfy itself by reappraisal and reassessment of entire evidence, uninfluenced by judgment of Court of Session, about guilt or innocence of accused person.

       Held: Section 366 of the Code of Criminal Procedure, 1973 requires confirmation by the High Court of a sentence of death passed by the Court of Session, before it being executed. In the reference proceeding under Section 367, the High Court, if it thinks fit is empowered to make further inquiry and receive additional evidence upon any point bearing upon the guilt or innocence of the convicted person. Under Section 368, the High Court may confirm the sentence annul it or pass any other sentence, or convict the accused of any offence of which the Court of Session might have convicted him or may order a new trial on the same or an amended charge. The scope of these three sections has been interpreted by the Hon'ble Supreme Court as casting a duty on the High Court to satisfy itself by a reappraisal and reassessment of the entire evidence, uninfluenced by the judgment of the Court of Session, about the guilt or innocence of the accused person. (Para 2)

       (ii) Constitution of India - Article 21 - Prevention of Terrorist Activities Act, 2002 - Right of accused to be represented by a counsel - Terrorist attack on Parliament House - All accused were produced before Special Judge for purpose of remand - Accused Shaukat and S.A.R. Gulani stated that they would be engaging their own counsel - Accused Afzal wanted a counsel to be engaged at State expense - Appointment of an Advocate as amicus - Many witnesses were subjected to cross-examination on behalf of two or three accused persons - Cross-examination conducted by counsel for accused, jointly and singularly - It cannot be said that it is a case of constructive denial of counsel to accused Afzal.

       Held: The issue, has to be decided on the facts as they emerge from the record. What are the facts emerging from the record of the present case before us? (Para 132)

       On 19.1.2002, all the accused were produced before the learned Special Judge for the purpose of remand. On inquiry, accused Shaukat and S.A.R. Gilani stated that they would be engaging their own Counsel. Accused Mohd. Afzal wanted a Counsel to be engaged on his behalf at State expense. Mr. Attar Alam. Advocate was appointed as amicus to defend accused Afzal. Mr. Attar Alam did not agree to act as amicus for Mohd. Afzal and on 17.5.2002. Ms. Seema Gulati, Advocate agreed to act as amicus for the accused. Charge were framed on 4.6.2002 and on 5.6.2002, all Counsel, in the presence of the accused persons, made certain concessions resulting in the passing of the order dated 5.6.2002. Mohd. Afzal throughout the trial never made a grievance that the statement was erroneous or was not authorised by him and made no attempt to withdraw the same, with the result that in terms of Section 58 of the Evidence Act, certain acts and documents referred to in the order dated 5.6.2002 stood proved on record without formal proof. On 1.7.2002, Ms. Seem a Gulati moved an application for discharge. On 2.7.2002, she stood discharged and Mr. Neeraj Bansal was appointed as amicus on behalf of accused Mohd. Afzal whom he had in fact engaged as his private Counsel with Seema Gulati. We have gone through the record of the Trial Court and from the same we note that in fact, in May, 2002, Ms. Seema Gulati and Neeraj Bansal had jointly filed the Vakalatnama duly signed by Mohd. Afzal to act as his Counsels. On 8.7.2002, accused Mohd. Afzal gave the name of four Counsels one out of whom he wanted to be engaged as amicus for him. Two of the named counsel were contacted by the Trial Court to assist the accused but they declined. Similar was the case of other two. Hence when Ms. Seema Gulati got discharged. Trial Court asked Mr. Neeraj Bansal to continue to act as amicus. On 12.7.2002, Trial Court recorded that these persons had expressed their inability to act as amicus and hence Mr. Neeraj Bansal would continue to act as amicus. The record of the Trial Court shows that the recording of evidence commenced on 8.7.2002. The record of Trial Court further reveals that for the first time, accused Mohd. Afzal himself cross-examined a witness being PW-20. Thereafter, he personally cross-examined PW-29. 66. All witnesses who deposed after PW-20 i.e. PW-21 to 80 were allowed to be personally cross-examined by accused Mohd. Afzal. Wherever required the amicus Mr. Neeraj Bansal conducted the cross-examination of the prosecution witnesses. The record shows that many witnesses were subjected to common cross-examination by all accused persons and on numerous occasions Counsel for one accused was cross-examining on behalf of two or three accused persons. We do not find from the record that there was a denial of Counsel to accused Mohd. Afzal, As noted, Mohd. Afzal did not object to Neeraj Bansal representing him as the Counsel. It is no doubt true that he made an application on 8-7-2002 specifying the names of four Counsels, one out of whom he wanted to act on his behalf, but when on 12-7-2002 the Court recorded that these persons had expressed their inability, hence Neeraj Bansal would continue to act as the amicus for accused Mohd. Afzal. Mohd. Afzal continued with the trial without any objection or grievance. (Para 133)

       We have noted the cross-examination conducted by Counsel for the accused, jointly and singularly. From hindsight it is easy to pick holes in the cross-examination conducted but applying the test in Strickland's case (supra), it cannot be said that it is a case of constructive denial of Counsel to accused Mohd. Afzal. (Para 134)

       (iii) Prevention of Terrorist Activities Act, 2002 - Section 3(2) Terrorist attack on parliament House - Media trial - Interview of accused Mohd. Afzal allowed to be taken by reporters of various news channels which was prominently telecasted - Trial commenced after more than six months - It continued for approximately five months - Whether it amounted to violation of fair trial - (No).

       Held: Dealing with the second issue, namely the media trial, the facts giving rise to the same as noticed above, is the interview of accused Mohd. Afzal allowed to be taken by reporters of various news channels on 20-12-2001 which was prominently telecasted on 20-12-2001 and 21-12-2001 and thereafter 100 days after the attack on the Parliament. It was contended by Mr. Collin Gonzalvis, Counsel appearing for Mohd. Afzal and Mr. Ram Jethmalani, learned Senior Counsel appearing for S.A.R. Gilani that a media trial is antithesis of the rule of law and results in miscarriage of justice. Pre-trial publicity is sufficient to cause prejudice and hatred against the accused and the presumption of innocence of every accused person till found guilty by a Court of Law is eroded. Pre-trial publicity prejudicially pervades and saturates the community and renders virtually impossible a fair trial. It was argued that so insidious is bias that a person believing that he was actually acting impartially, in his unconscious mind, is affected by the bias and the decision is, therefore, the result of a biased mind. Law hates a biased mind. (Para 135)

       We may only add that Judges are trained, skilled and have sufficient experience to shut their minds receiving hearsay evidence or being influenced by the media. Besides, the media confession of Mohd. Afzal was aired on 20-12-2001 for the first time at night and repeated on 21-12-2001. The trial commenced after more than six months. It continued for approximately five months. Verdict was delivered on 16-12-2002. We, there-fore, reject the second preliminary issue raised. (Para 138)

       We may however lodge a caveat on this aspect of the matter. It has indeed become a disturbing feature as is being noticed by us repeatedly that the accused persons, after their remand by the Magistrate, are brazenly paraded before the press and interviews are being allowed. Accused persons are exposed to public glare through T.V. and in case where Test Identification Parade or the accused person being identified by witnesses (as in the present case) arise, the case of the prosecution is vulnerable to be attacked on the ground of exposure of the accused persons to public glare, weakening the impact of the identification. Further, what is more fundamentally disturbing to our mind is the fact that police custody is given by the Court to the investigation authorities on the premise that the accused is required for the purpose of investigation. This custody is not to be misused by allowing the media to interview the accused persons. The practice of allowing the media to interview the accused persons when they are in police custody under the orders of the Court, has therefore, to be deprecated. (Para 139)

       (iv) Prevention of Terrorist Activities Act, 2002 - Sections 50, 2(h), 2(1)(h) - Explosive Substances Act ­Criminal Procedure Code, 1973 - ­Section 196 - Constitution of India - ­Art. 239 - Indian Penal Code, 1860 - ­Sections 121, 121A, 122, 124 rw/s 120B - Sanction for prosecution ­ - Terrorist attack on Parliament House ­­ - Sanction for prosecution for offences under POTA accorded by Lt. Governor of Delhi - Whether valid? - (Yes) - Lt. Governor was acting in exercise of powers conferred by Section 50 r/w Clause (h) of sub-section (1) of Section 2 of POTA - For offences under Indian Penal Code, Lt. Governor was delegated power u/s 196 Cr.P.C.

       Held: In the context of the Union Territory of Delhi, the Constitution constitutionally designated the Administrator as the Lt. Governor. Hence, distinction between the Administrator and the Lt. Governor is misconceived. The scheme of the Constitution in relation to the Union Territory of Delhi would not require two Notifications, one appointing an Administrator and the other designating him. Further, Section 2(h) of POTA defines “State”, in relation to a Union Territory to mean the Administrator thereof. (Para 149)

       POTA as Central Legislation itself delegates the powers of sanction to the Administrator i.e. the Lt. Governor in the Union Territory of Delhi. We may note that Article 239AA (3)(b) provides that nothing in Sub-clause (a) shall derogate from the power of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or a part thereof. In view of the specific delegation under Section 2(h) of POTA, reliance upon Section 3(60)(c) of the General Clauses Act and the Government of National Capital Territory of Delhi Act, 1991 is mis­placed and so is the reliance on the judgment of the Supreme Court in Goa Sampling Employees Association case (supra). (Para 150)

       We may note that the order communicating sanction under POTA being Ex. PW-11/1, records that the Lt. Governor was acting “in exercise of powers conferred by Section 50 read with Clause (h) of Sub-section (1) of Section 2 of POTA.” As far as sanction for offence under the Penal Code is concerned, Notification No. 11011/2/ 74/UTL-(1) dated 20-3-1974, copy whereof was produced for our perusal, shows that the Lt. Governor was delegated the power under Section 196 of the Code of Criminal Procedure. Order conveying the sanction being Ex. PW-11/2 records that the Lt. Governor was acting “in exercise of the powers conferred by Sub-section (1) of Section 196 of the Code of Criminal Procedure, 1973 read with Government of India, Ministry of Home Affairs Notification No. 11011/2/74/UTL-(1) dated 20-3-1974.” (Para 151)

       The witness had brought the original files pertaining to both the sanctions and had clearly deposed that file when put up to the Lt. Governor contained copy of the FIR, draft charge­-sheet, seizure memo, copy of the site plan, disclosure statements, statements of witnesses, FSL report and the prosecutor’s opinion. He had put up the file before the Principal Secretary, who in turn placed it before the Lt. Governor. While putting up the files, notes were prepared drawing attention of the Lt. Governor to the role of individual persons accused of the offence. (Para 157)

       Turning to the second sanction accorded by the Commissioner of Police under Section 7 of the Explosive Substances Act, PW-12 has deposed that file was put up to the Commissioner of Police which contained copy of the FIR, list of accused persons and witnesses, confessional statements, statements of witnesses, site plan, CFSL report and draft charge-sheet. He had communicated the sanction accorded by the Commissioner of Police under his signatures vide letter Ex.PW-12/1. Testimony of this witness went unchallenged in respect of the deposition by him as to what material was placed and considered by the Commissioner of Police. Thus, the sanction accorded under Section 7 of the Explosive Sub-stances Act meets the requirement of law. (Para 159)

       (v) Prevention of Terrorist Activities Act, 2002 - Sections 36 to 48, 52 - Arrest - Guidelines ­­ - Evidence collected prior to 19-12-2001 ­ - Whether had to be ignored in relation to POTA offences? - (No).

       Held: Contention raised was that POTA had certain statutory safeguards and, therefore, all evidence collected prior to 19-12-2001 had to be ignored in relation to the POTA offences. Reliance was placed on Sections 36 to 48, 51 and 52 of POTA. Contention was that since POTA took away valuable right especially pertaining to bail, the legislative intent was to provide for some minimum safeguards for the benefit of the accused. It was argued that on the face of the FIR POTA provisions stood attracted and that the investigation by not adding POTA provision in the FIR at the initial stage circumvented the statutory safeguards. Reply of the prosecution was that the Supreme Court in various judgments had cautioned the investigation not to rush to conclusions that TADA offences were made out without their being adequate material on record. This caution was administered by the Supreme Court in the context of provisions curtailing the right of the accused to get bail as also the extended period for filing of charge-sheet. POTA contains similar provisions. Therefore, not adding POTA provisions at the inception was justified. (Para 160)

       In AIR 1997 SC 610, D.K. Basu v. State of West Bengal, The Hon’ble Supreme Court laid down guidelines to be followed by the police when an accused is arrested. Guidelines 2, 3 and 10 are substantially the same as incorporated in Section 52 of POTA. (Para 162)

       Whether on facts, there is a violation, is a different matter and would be dealt with when we discuss the evidence. But as a mere proposition, no prejudice would be caused if POTA provisions were there or not qua the rights of the accused when arrested. (Para 163)

       Sections 36 to 48 POTA deal with interception of communications and, inter alia, provide that there shall be a competent authority not below the specified rank, i.e., Joint Secretary in the Centre and Secretary in a State who shall grant sanction for interception and when so granting shall satisfy himself that Sub-section (1) of Section 39 war-rants an interception. The order granting sanction shall specify the details provided in Sub-section (2) of Section 39. The order shall be reviewed by a review committee. Section 43 provides for interception in case of emergency. (Para 164)

       Section 43 of POTA dealing with interception in case of emergency situation and Rule 419A of the Indian Telegraph Rules, 1951 are virtually the same. Thus, as a mere proposition, no prejudice would be caused if POTA provision were added or not, qua the right of the accused pertaining to interception. (Para 166)

       (vi) Prevention of Terrorist Activities Act, 2002 - Section 3(1) ­ - ­Indian Penal Code, 1860 - Section 121 - Terrorist Act - What constitutes a ­ - ­Comparison of POTA and TADA ­ ­ - Incident at Parliament House when an unsuccessful attempt was made to storm and blow up building of Parliament House when Parliament was in session - Exchange of fire between intruders and security forces killing 9 persons while injuring 16 persons ­­ - Whether it was terrorist attack? - (Yes).

       Held: Comparison of POTA and TADA shows that the two statutes define terrorist act with substantial similarity, the difference being that in TADA ‘acts intended to overawe the Government as by law established and acts intended to alienate any section of the people or to adversely affect the harmony amongst different sections of the people were terrorist acts. These categories of acts are found missing In POTA but ‘acts done with intention to threaten the unity, integrity, security or sovereignty of India’ are terrorist acts under both statutes. The ‘acts’ have to be by use of arms, ammunition, noxious substances or chemicals referred to in both provision. We find that the purport and intent is substantially common. (Para 174)

       A criminal activity becomes a terrorist act where it is committed with the requisite intention as contemplated by Section 3(1) of TADA by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences mentioned in said section. The Court, in the context of the Constitution Bench judgment in Kartar Singh v. State of Punjab, 1994(3) SCC 569 which upheld the constitutional validity of TADA observed that: it is, thus, seen that most of the criminal activities constituting a terrorist act and offences under the penal law, do overlap. (Para 176)

       All Counsels agreed that indeed what happened on 13-12-2001 at Parliament House in the forenoon was a terrorist act as defined in POTA. Notwithstanding that none disputed that it was a terrorist act we shall nonetheless deal with it in relation to the evidence on record since it is a case involving capital sentence and would not return our finding on Counsels concessions. (Para 177)

       (vii) Indian Penal Code, 1860 - Section 121 - War against Government of India - Meaning of - Attack on Parliament when House was in session - Exchange of fire between intruders and security forces - Act would fall within corners of Section 121, IPC.

       Held: The phrase ‘war’ in ordinary parlance is to heighten the effect of an oral agreement or a written communication. As aptly described by Yoram Dinstein in his book ‘Aggression’ the word ‘war’ is a flexible expression suitable for an allusion to any serious strife, struggle or campaign. Loosely it may be used in expression such as “war of words”, “war of nerves”, etc. But this is a matter of poetic licence. To understand the meaning of “war” a distinction has to be drawn between what war signifies in the domestic law of a State and what it denotes in International Law. Decisions of domestic Courts in Municipal laws are no precedents for they are rendered in the context of the term “war” used in a particular legal system. Similarly issues germane to international law would not apply to domestic laws. Recognising the aforestated, Oppenheim excluded civil wars from his definition. (Para 185)

       Thus, where the goal is a complete subjugation of the enemy and a State mobilises all its resources in full measure and goes into offensive with all its military might, undeniably, it is war. But this is not the only concept of war. A dispute, like a border rectification mere so where it comes with an emotional load, if sought to be attained with force may well be a war. Hostilities do not cease to be wars merely because some weapons remain on the shelf, Yorom Dinstein himself opined that there may be a broad array of causes for such say restraint; lofty moral impulses, concession to public opinion at home and abroad, desire to avoid colossal losses, fear of retaliation or purely military considerations. (Para 187)

       Ingrid Detter in “The Law of Wars” illuminates us a little further. The learned author opines that the hallmark of terrorism invariably implies a demand that certain acts are taken by someone else. According to the author this leads us to: ‘Terrorism is thus basically extortionate as its perpetrators seek to obtain their ends by force. This force is not applied against the person who can grant the wishes of the terrorists but against some other person intending to pressurise the person in authority. Hijacking of aeroplanes, kidnapping citizens, planting bombs and killing citizens are examples of the force used by terrorists to achieve their ends. But the learned author concludes that terrorist tactics may be adopted in war “Guerilla War.” (Para 188)

       In our opinion, wars may occur where belligerents are not States. Individuals having different allegiance, especially political, may engage them-selves against the State by use of arms. The scale of the aggression would be determinative of the fact whether the act(s) constitute war. Further, the definition of war in the municipal statute would guide. (Para 189)

       Insurgency is treated to be an act of waging war against the Government of India. We have dealt with what the Parliament of India means in the jural concept. It is the seat of the sovereignty of India. It symbolises the being of the Nation, i.e. “India that is Bharat”. A full­ blooded attack on the Parliament when it is in Session would indeed be an act of war against the Government of India. The number of the combatants are only indicative of, certainly not determinative of, whether the attack would be an act of war. The five power available, to our mind, would be more decisive. To illustrate, a single person may have infiltrated into India with a nuclear bomb, a missile and a navigation system to guide a missile. He uses it to bomb the Parliament when it is in Session and particularly when the President of India is to address it. The entire executive and the Legislature is present. The President is there, the Vice-President is there, the Prime Minister, his entire Cabinet is there. All members of Parliament are there. He intends by his attack to wipe out the entire legislative and executive body. This solitary act by one man would be more devastating then a 1000 armed men attacking the Parliament. Indeed, it would be an act of war. (Para 190)

       Five or six heavily armed combatants who storm a public building, kill or take hostage civilians or for that matter highly respected citizens intend to only force the Government of India to concede to their demands. The act may not amount to waging war against the Government of India. But where the seat of the Government of India itself is attacked position would be entirely different. The two are un-comparable situations. (Para 191)

       (viii) Criminal Procedure Code, 1973 - Sections 211, 218 - Framing of charge - If a single act or series of acts is of such nature that it­­ is doubtful which of several offences the facts when proved will constitute - Charge can be framed for all offences or alternative charges can be framed - At the trial if it is established that the accused has committed an offence, he may be convicted though he may not have been charged with the offence.

       Held: Section 218, Cr. P.C., 1973 requires framing of a charge for every distinct offence which the accused is charged of. Section 221 is an exception to Section 218. It provides that if a single act or series of acts is of such nature that it is doubtful which of several offences the facts which can be proved will constitute, the charge can be framed for all offences or alternative charges can be framed. At the trial if it is established that the accused has committed an offence, he may be convicted though he may not have been charged with the offence. Section 218 embodies the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. However, it cannot be read pedantically to provide escape route to an accused. (Para 200)

       (ix) Indian Penal Code, 1860 ­ - Section 120-B - Criminal conspiracy - Accused charged with that accused conspired with other named persons to procure arms and ammunition to attack Indian Parliament when in session to make hostage or kill the Prime Minister, other Central Ministers, M.Ps., Vice President - Charge as framed for offence is in compliance with law.

       (x) Explosive Substances Act ­ - Section 5 - Charge framed for offence under - Prosecution case that accused Mohd. Afzal and Shaukat led the police where explosive substances were recovered - Substance of charge is possession of explosive substances with the accused - Charge framed is proper.

       Held: No doubt, charge No. 9 as framed does state that the accused Mohd. Afzal and Shaukat led the police to H. No. 281, Indra Vihar and A-97, Gandhi Vihar where explosive substances were recovered and offence committed was under Section 5 of the Explosive Sub-stances Act, but it is clear that the sub-stance of the charge in possession of the explosive substances with the accused. The language could have been better. It cannot be said that the accused did not comprehend the charge or were misled, much less that a miscarriage of justice has been committed. (Para 203)

       (xi) Prevention of Terrorist Activities Act, 2002 - Section 6 ­ - Charge under - Sustainability - Whether Section 6 is a penal section? - (No).

       Held: It is a prohibitory section and forfeits proceeds of terrorism to the Government. It is not a penal section. We find that Trial Court has only passed an order of confiscation under the Act. We may note that it appears that trial Court has treated confiscation as penal and hence has framed a charge. No adverse consequences have flown, no miscarriage of justice has resulted. (Para 204)

       (xii) Prevention of Terrorist Activities Act, 2002 - Section 20 - Accused charged of being members of banned terrorist organizations and of harbouring terrorists, concealing terrorists, facilitating commission of a terrorist act - Charge could have been better worded - However, accused cannot be said to be misled - No conviction rendered u/s 20, POTA. ­

       (xiii) Indian Penal Code, 1860 ­ - Section 120-A - Evidence Act, 1872 - Section 10 - Criminal conspiracy - Proof of - Things said or done by conspirator in reference to common design - Physical manifestation of agreement. ­

       Held: A conspiracy is a march under a banner. The very agreement, concert or league is the ingredient of the offence like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). From the definition of conspiracy in Section

       120-A, it is evident that the agreement constitutes the act and the intention to achieve unlawful object constitutes the mental state. All conspirators are liable for the crimes committed in furtherance of the conspiracy besides being liable for committing an offence of conspiracy itself. Pertaining to conspiracy, law punishes conduct that threats to produce the harm as well as the conduct that actually produces the harm. In this, lies the difference between the offence of conspiracy and general penal offences. In case of general offences, attempt to commit a crime merges when the crime is completed but in case of conspiracy, punishment is for both, the conspiracy and the completed crime. This distinctiveness of the offence of conspiracy makes all conspirators as agents of each other. Conspiracy, therefore, criminalises the agreement to commit a crime. Inherently, conspiracy is a clandestine activity. Its covenants are not formed openly. It has to be inferred from circumstantial evidence of cooperation. (Para 211)

       If conspiracies are hatched in the darkness of secrecy and direct evidence is seldom forthcoming and if the offence is to be proved in relation to the acts, deeds or things done by the co-conspirators, the question would arise as to what is the nature of these acts, deeds or things. Is merely moving around together or seen in each other’s company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime. (Para 212)

       A charge of conspiracy, inherently causes prejudice to an accused because it forces him into a joint trial and the entire mass of evidence against all the accused persons is presented for consideration of the Court. This prejudice may get compounded when prosecutors seek to sweep within the dragnet of conspiracy all those, who have been associated in any degree whatsoever with the main offenders. But the prosecution also has a difficulty at hand. It is difficult for it to trace the exact contribution of each member of a conspiracy besides, direct evidence is seldom forthcoming. (Para 213)

       Thus, the proof of offence of conspiracy would require in most cases some kind of physical manifestation of agreement. The physical manifestations may not be proved by overt acts but may be evidenced by conscience acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. Innocuous, innocent or inadvertent acts and events should not enter the judicial verdict. The Court must be cautious not to infer agreement from a group of irrelevant facts carefully arranged so as to give an assurance of coherence. (Para 214)

       (xiv) Evidence Act, 1872 - Sections 3, 65A and 65B inserted by Act No. 21 of 2000 - Special provisions as to evidence, relating to electronic record - Computer generated printouts for mobile telephone - Admissibility in evidence - Terrorist attack on Parliament - Seizure of mobile phones - Computer printouts detail information, held admissible.

       Held: The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause “d” of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the Court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a printout. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, printout of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-sections (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Sub­-section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Sub-section 4 and certifying contents in the manner set out in the sub-section. The Sub-section makes admissible an electronic record when certified that the contents of a computer printout are generated by a computer satisfying the conditions of Sub-section 2, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record. (Para 276)

       Whether Section 65B casts a positive mandate on the person relying upon electronic record to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning? (Para 277)

       The last few years of the 20th Century saw rapid strides in the field of information and technology. The expanding horizon of science and techno-logy threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became outdated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on the horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and its proof were incorporated. (Para 278)

       Did the law relating to admissibility and proof of electronic record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates. (Para 279)

       In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police and Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the Courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the printout was retrieved from the computer memory and the computer was not malfunctioning. (Paras 280)

       (xv) Evidence Act, 1872 - Sections 138, 146 - Witnesses - If correctness of statement of a witness is disputed, when in witness box, attention of witness must be drawn to part of statement which is sought to be disputed - Right of opposite party to cross-examine the witness tendered in evidence - Where

       a witness is not cross-examined on

       any relevant aspect, correctness of statement made by a witness cannot be disputed.

       Held: The principle of law enunciated, as extracted above, has been constantly followed by the Courts in India. Even, the law in India, as laid down by the Apex Court is that if the correctness of a statement of a witness is disputed, when in the witness box, attention of the witness must be drawn to the part of statement which is sought to be disputed, so that the witness has an opportunity to explain his statement. Section 138 of the Evidence Act confers a valuable right on the opposite party to cross-examine the witness tendered in evidence. Section 146 of the Evidence Act enlarges the scope of the provisions of Section 138 by allowing putting questions to a witness to - ­

       (a) test his veracity;

       (b) to discover who is and what is position in life; and

       (c) to shake his credit. (Para 222)

       It is even otherwise settled law that where a witness is not cross-examined on any relevant aspect the correctness of the statement made by a witness cannot be disputed. (Para 221)

       (xvi) Indian Penal Code, 1860 ­ - Section 120-B - Criminal Procedure Code, 1973 - Section 162 - Evidence Act, 1872 - Section 8 - Criminal conspiracy - Attack on Parliament House - Identity of deceased terrorist - Accused 1 was taken to mortuary where he identified all the 5 deceased terrorists - Identification of deceased terrorists by accused 1 in presence of police as noted in post-mortem reports - Admissibility - Evidence relating to conduct of an accused person, which is deposed to by a police officer is admissible as conduct u/s 8 of Evidence Act - What is excluded by Section 162 Cr.P.C. is a statement made to a police officer in course of investigation - Identity of five deceased terrorists stands established - What is relevant is association of accused with the said five persons and not their names.

       (xvii) Prevention of Terrorist Activities Act, 2002 - Sections 3(2), 4(b) - Explosive Substances Act, 1988 - ­Sections 3 and 4 - Indian Penal Code, 1860 - Sections 120-B, 121, 307 - Criminal conspiracy - Attempt to murder - Terrorist attack on Parliament House - 5 slain terrorists had made an entry into Parliament House complex in a white Ambassador Car which had a red light on its roof - These five terrorists were intercepted by security personnel near Vice President’s gate - Firing between security personnel and 5 terrorists - All 5 terrorists shot down by security personnel - Terrorists were armed with automatic assault rifles, pistols, grenades, rifle grenades and had ammunition with them - Recovery of 11 electric detonators, 14 hand grenades and 16 rifle grenades from the site - Besides the aforesaid explosives, many electronic devices found at the site - 58 used cartridges of AK-47 rifle and 118 live cartridges seized at the spot - Mobile phones seized revealed information about many associates in the act - Arrest of accused persons and recoveries made - Disclosure statement recorded - Confessions recorded ­ - Accused Afzal held to be a part to conspiracy to attack Parliament when it was in Session - He procured hide outs from terrorists, was instrumental in smuggling of arms and ammunition used by terrorists - Shaukat’s role in conspiracy was that of an active participant - Accused Gilani was on close and intimate terms with accused Afzal and Shaukat - However no evidence on record to establish that he remained in touch over the telephone with terrorists - Charge of conspiracy against accused Afzal and Shaukat to attack Parliament of India stands established - Conviction u/s 3(2) POTA - Accused Gilani and Afzan Guru acquitted of the charges - Award of death sentence for accused Afzal and Shaukat.

       Held: From the facts and circum-stances, it, therefore, stands established that accused Mohd. Afzal was a part to the conspiracy to attack Parliament when it was in Session. He procured hide outs for the terrorists, was instrumental in the smuggling of arms and ammunitions used by the terrorists, had actively purchased the chemicals used for making the explosives. Had been involved in the purchase of a motor-cycle used for received by the terrorists and had been involved in the purchase of the white Ambassador Car used by the terrorists. (Para 400)

       Shaukat’s role in the conspiracy was clearly that of an active participant. Evidence on record does not show that he has been brought within the sweep of the dragnet of conspiracy by merely being seen associated with Afzal. There is more than mere knowledge, acquiescence, carelessness, indifference or lack of concern. There is clear and cogent evidence of informed and interested co-operation, simulation and instigation against accused Shaukat. Evidence qua Shaukat clearly establishes the steps from knowledge to intent and finally agreement.

       Accused Nos. 3 S.A.R. Gilani:

       He was on close and intimate terms with accused Afzal and Shaukat and remained in contact with both of them over the telephone in the months of November and uptil 13th December, 2001. When Shaukat acquired the mobile phone 9810446375 on 2-11­-2001, the first call was on the mobile number of S.A.R. Gilani. Again, when Shaukat changed his number to 9811573506 on 7-12-2001, the first call was to S.A.R. Gilani on his mobile phone. Further, Afzal had stopped using his mobile phone 9811489429 w.e.f 29­-11-2001 till 7-12-2001. On reactivation on 7-12-2001 the first call was at S.A.R. Gilani’s phone. On 13-12-2001 at 12:15:09 hours, immediately after the attack Gilani had received a call from Shaukat and at 12:25:11 hours, he had made a call to Shaukat at Shaukat’s mobile phone 9811573506.

       There is, however, no evidence on record to establish that he remained in touch over the telephone with the terrorists. Prosecution alleged that the fact that Gilani was in touch with accused Afzal and Shaukat was a prima facie evidence of his being a co­-conspirator. Prosecution highlighted the fact that the mobile phone of Shaukat, when made operational for the first time, the first call was made to Gilani. After Shaukat’s number went into disuse on 29-11-2001 and was again put to use after the break on 7-12-2001, the first call was made to Gilani. Further, immediately after the attack on Parliament, Gilani had received a call and had returned one to Shaukat.

       We have pondered over this evidence, it is a relevant circumstance but by itself without anything more on record is not sufficient to draw an inference against S.A.R. Gilani that he was involved in the conspiracy. After all S.A.R. Gilani was known to Shaukat and Afzal. When one acquires a mobile phone, it is but natural that one would test it for use. What other number would one connect other than that of a known person. By itself, with nothing more, we are afraid that conviction cannot be sustained on this evidence.

       Admittedly, as noted above, there is no evidence of Gilani being in telephonic touch with any of the terrorists. There is no evidence that Gilani was instrumental in procuring the hide outs or the chemicals used for manufacture of explosives. There is no evidence of Gilani’s involvement in procuring arms and ammunitions. Prosecution sought to rely upon the testimony of PW 45 landlord of Shaukat that he had seen Gilani visiting the house of Shaukat and this was an additional evidence to show his involvement in the conspiracy particularly when Shaukat’s landlord had stated that 4 or 5 persons started visiting Shaukat’s house 2 or 3 days prior to 13-12-2001, and these persons were the deceased terrorists. (Paras 402 to 406)

       Prosecution had relied upon the conversation between Gilani and his brother in the afternoon of 14th December, 2001 and had contended that the talk was incriminating, in that, it showed Gilani’s participation in the attack on Parliament House. We had while discussing the taped conversation, even assuming the prosecution version to be correct, come to a conclusion that there was nothing which could incriminate Gilani as far as the conversation is concerned.

       Finally, prosecution had relied upon the disclosure statement made by Gilani and had contended that the information provided in the disclosure statement was ultimately proved to be correct.

       We have dealt with the law pertaining to Section 27 of the Evidence Act and since no recoveries were effected pursuant to the disclosure statement, we hold that nothing incriminating against accused S.A.R. Gilani has been brought out by the prosecution on the basis of the disclosure statement.

       We have already held that under POTA a confession of an accused is not admissible in evidence against the co­-accused.

       We are, therefore, left with only one piece of evidence against accused S.A.R. Gilani being the record of telephone calls between him and accused Mohd. Afzal and Shaukat. This circumstance, in our opinion, do not even remotely, far less definitely and unerringly point towards the guilt of accused S.A.R. Gilani. We, therefore, conclude that the prosecution has failed to bring on record evidence which cumulatively forms a chain, so complete that there is no escape from the conclusion that in all human probabilities accused S.A.R. Gilani was involved in the conspiracy. (Paras 408 to 412)

       We accordingly hold that the prosecution has brought home its case of conspiracy against accused Mohd. Afzal and accused Shaukat but has failed to prove the case against accused S.A.R Gilani and Navjot.

       We accordingly acquit accused S.A.R. Gilani and Afzal Guru @ Navjot Sandhu from all the charges. (Paras 421, 422)

       In view of our discussion as to what would be, in law an offence of waging war against the Government of India, though there were five terrorists who attacked Parliament on 13-12-2001 but from the fire power available with them and they being armed to the teeth and had they succeeded, the entire Parliament which was in Session would have been wiped out. We hold that the actions of the terrorists would be acts of waging war against the Government of India. Accused Afzal and Shaukat were active participants in providing the logistic support. If not acts of waging war what they did would certainly be of acts of abetting the waging of war. We hold that accused Afzal and Shaukat guilty of committing the offence under Section 121, I.P.C.

       Section 121-A makes the conspiracy to commit an offence punishable by Section 121, a substantive offence. We hold accused Afzal and Shaukat guilty of having committed the offence under Section 121-A, I.P.C.

       Section 122. I.P.C. makes it an offence to collect arms or ammunition to wage war against the Government of India. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence under Section 122 of the I.P.C.

       Admittedly 9 security personnels were killed by the terrorists when they broke into Parliament House. They succeeded in so doing as a result of a conspiracy to which accused Afzal and Shaukat were a party. It was not even the argument of the defence that it was not the intention of the terrorists not to kill anyone who came in their way in Parliament House. We accordingly hold guilty accused Afzal and Shaukat for having committed an offence under Section 302 r/w Section 120-B. I.P.C.

       On parity of reasons, admittedly 16 security personnels nearly escaped death as a result of being fired upon by the terrorists. It was not even argued that it was not the intention of the conspirators to attempt to kill anyone who came in their way. We hold accused Afzal and Shaukat guilty of having committed an offence under Section 307 r/w Section 120-B. I.P.C. (Paras 426 to 430)

       Action, activity, concept or thought being “thing”, the actions of accused Mohd. Afzal and Shaukat in procuring explosives and chemicals for manufacture of explosives and participating in the preparation of explosives would be action amounting to doing of a thing using explosive intending to threaten the unity, integrity, security or sovereignty of India. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence punishable under Section 3(2), POTA.

       The charge of conspiracy against accused Afzal and Shaukat to attack the Parliament of India stands established and we, therefore, hold them guilty of having committed the offence under Section 3(3) of POTA.

       Admittedly, the five persons,

       who attacked Parliament, committed terrorists acts and indeed were terrorists. Accused Afzal and Shaukat have been proved by the prosecution of harbouring the terrorists in the hide outs procured by them. We accordingly hold accused Afzal and Shaukat guilty of having committed the offence under Section 3(4) of POTA. (Paras 436 to 438)

       Evidence on record establishes that accused Afzal and Shaukat were in unauthorised possession of arms and explosives recovered from the hide outs. Indeed they were lethal. We, therefore, hold them guilty of having committed the offence under Section 4(b) of POTA. (Para 440)

       Possession of explosive substances and chemicals for manufacturing explosive substances from accused Afzal and Shaukat from the hide outs procured by them stands established. We accordingly convict accused Afzal and Shaukat for having committed the offence under Section 3 as well as the offence under Section 4 of the explosive Substances Act.

       As per the confession of Afzal and Shaukat, the sum of Rs. 10,00,000/-­recovered from them were given to them by the terrorist Mohd. We accordingly forfeit the said amount to the Government of India.

       We accordingly answer the murder reference in terms of our findings above. We affirm the conviction of accused Mohd. Afzal and accused Shaukat Hussain Guru in respect of the charges they stand convicted by the learned Special Judge, POTA. We acquit accused S.A.R. Gilani and accused Afzan Guru @ Navjot Sandhu from the charges.

       As regards the sentence imposed by the learned Special Judge, POTA for the various offences of which accused Mohd. Afzal and accused Shaukat Hussain Guru stand convicted, we find that the learned Special Judge, POTA has given legally sound, adequate and justified reasons while imposing the sentence for various offences except for the offence under Section 121 of the Indian Penal Code. The learned Special Judge has imposed the sentence of life imprisonment.

       The State commends us to enhance the sentence to one of death.

       The attack was on Parliament, when in Session. The sovereignty of the country was attacked. To borrow the words of the Apex Court in the judgment reported as 2002 (Vol. IV) AD (SC) 445 (Para 87), Krishna Mochi v. State of Bihar, the gravity of the offence is of a magnitude that the collective conscious of the community is so shocked that it will expect the holders of the judicial power centre, to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty. Indeed, after the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place. The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war. We agree with the submissions made by the prosecution that for the offence of waging war accused Mohd. Afzal and accused Shaukat Hussain Guru deserve the higher penalty. We accordingly modify the sentence imposed on the said two accused persons under Section 121, IPC by awarding death sentence to these two accused. The rest of the sentences imposed by the learned Special Judge stand affirmed. (Paras 443 to 448)

       (xviii) 'WORDS AND PHRASES - ­Word 'Thing’ - Dictionary meaning ­ - Action, activity, concept or thought being ‘thing’ — Actions of accused in procuring explosives and chemicals for manu-facture of explosives and participating in preparation of explosive would be action amounting to doing of a thing — Prevention of Terrorist Activities Act, 2002 — Section 3.

       Result: Appeals disposed of accordingly.