2024 Supreme(Pat) 796

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Death Reference No.10 of 2021 with Cr. App. (DB) Nos. 757, 769 of 2021 and 18, 48, 58, 83 of 2022
(11.9.2024)
State of Bihar (in 10)
Azharuddin Qureshi (in 757)
Numan Ansari (in 769)
Imteyaz Alam @ Ansari (in 18)
Md. Umer Siddiqui (in 48)
Md. Mujibullah Ansari (in 58)
Haider Ali (in 83)
vs.
Imteyaz Alam @ Ansari (in 10)
Union of India (N.I.A.) New Delhi
(in all except 10) ... Respondents

Headnote:

Unlawful Activities (Prevention) Act, 1967 – Sections 16, 18 and 20 read with Section 43E – Explosive Substances Act, 1908 – Section 5(b) – Indian Penal Code, 1860 – Sections 302/34, 307/34, 120B, 121 and 121A [Bharatiya Nyaya Sanhita, 2023 – Sections 103/3(5), 109/3(5), 61, 60 and 148] – Criminal Procedure Code, 1973 – Section 366 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 407] – Terrorist activity and waging war against country – Common intention – Death sentence – Six persons died and 89 were injured in incident of serial bomb blasts – Post-mortem and injury reports as also depositions of Doctors fully confirm and establish prosecution story – Evidence of independent witnesses clearly confirm that respondent was one of main conspirators and was part of team which executed bomb blasts – Evidence of DNA expert is admissible in evidence as it is a perfect science – Remnants of test blasts were recovered – Process of recovery was photographed which finds its corroboration in evidence of an independent witness – If confessions are recorded in accordance with law then they can be admissible in evidence regardless of fact that such confession was recorded in a different case – War, terrorism and violent acts to overawe established government have many things in common – However, one thing is certain that general concept of war need not be imported in Section 121 as if there is an inter-country war involving military operations between two hostile nations – War contemplated by Section 121 is not conventional warfare between two nations – It is also not only rebellion to Government – A balanced and realistic approach is called for in construing expression 'waging war', irrespective of how it was viewed in long past – Selecting a crowded place at an election rally to blast bombs is definitely with a motive to overawe administration of State – This created a war like situation where so many persons were injured and eight persons were killed. (Paras 59, 125, 127, 143, 156, 157 and 161)

Indian Penal Code, 1860 – Sections 302/34, 307/34, 120B, 121 and 121A [Bharatiya Nyaya Sanhita, 2023 – Sections 103/3(5), 109/3(5), 61, 60 and 148] – Unlawful Activities (Prevention) Act, 1967 – Sections 16, 18 and 20 read with Section 43E – Explosive Substances Act, 1908 – Section 5(b) – Criminal Procedure Code, 1973 – Section 354(3) [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 393(3)] – Terrorist activity and waging war against country – Common intention – Death Reference – Six persons died and 89 were injured in incident of serial bomb blasts – Damage and devastation could have been unimaginable – Target was Chief Minister of Gujarat at that time and present Prime Minster of India – Even if the conspired purpose and objective fell short of installing some other government or entity in place of an established government, it would not detract from offence of waging war – Appellants A-1 to A-6 are guilty of offences under Sections 302 of IPC; Sections 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967 and Sections 3, 4 and 5 of Explosive Substances Act – Death sentence should be invoked only in rarest of rare cases – All four appellants (Death convicts) are persons of young age with no established trans-border contacts – Their conduct in jail has also not been brought on record – While they were in custody, nothing has come to light which would indicate that they had made it difficult for investigators to perform with ease – There was no attempt by appellants at provoking their kindred to take any retaliatory action – Sentence of fixed term of 30 years would suffice and would meet ends of justice – No interference with respect to sentence under other heads is required – Appeals dismissed with modification in death sentence. (Paras 162, 163, 167, 178, 194, 195, 196 and 198)

Indian Evidence Act, 1872 – Sections 24, 27 and 30 [Bharatiya Sakshya Adhiniyam, 2023 – Sections 22, 23 and 24] – Criminal Procedure Code, 1973 – Section 164 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 183] – Extra-Judicial confession – Evidentiary value – If facts and circumstances emerging from evidence adduced make it reasonably probable that confession could be result of threat, inducement or pressure, Court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a police officer – Confessions leading to recovery of a fact is an exception to rule of exclusion of confession made by accused in custody of a police officer – Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law – However, before acting upon a confession, Court must be satisfied that it was freely and voluntarily made – Confession should have been made with full knowledge of nature and consequences of confession – If any reasonable doubt is entertained by Court that these ingredients are not satisfied, Court would not consider them – Confession of co-accused cannot automatically be elevated to status of substantive evidence which can form basis of conviction of co accused. (Paras 85, 86, 87, 89 and 90)

Indian Evidence Act, 1872 – Section 10 [Bharatiya Sakshya Adhiniyam, 2023 – Section 8] – Common design – Section 10 of IEA is based on principle of agency operating between parties to conspiracy inter se and is an exception to rule against hearsay testimony – If conditions laid down therein are satisfied, act done or statement made by one is admissible against co-conspirators – Statements made by conspirators after they are arrested cannot be brought within ambit of Section 10 of IEA because by that time conspiracy would have ended. (Paras 95 and 99)

Indian Penal Code, 1860 – Section 120B [Bharatiya Nyaya Sanhita, 2023 – Section 61] – Criminal conspiracy – It is not an ingredient of offence that all parties should agree to do a single illegal act, it may comprise commission of a number of acts – Mostly, conspiracies are proved by circumstantial evidence as conspiracy is seldom an open affair – Usually, both, existence of conspiracy and its objects have to be inferred from circumstances and conduct of accused – Circumstances before, during and after occurrence can be proved to decide about complicity of accused – There is hardly any scope for application of principle of agency in order to find conspirators guilty of a substantive offence not committed by them – Criminal offences and punishments are governed by statute – Offender will be liable only if he comes within plain terms of penal statute – Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle. (Paras 104, 106, 109 and 112)

Indian Evidence Act, 1872 – Section 27 [Bharatiya Sakshya Adhiniyam, 2023 – Section 23] – Disclosure statement – Fact investigated and found by police consequent to information disclosed by accused amounts to confirmation of that piece of information – Only that piece of information which is distinctly supported by confirmation, is rendered relevant and admissible under Section 27 of IEA – Similarly, a physical object may be recovered but Investigating Agencies may not have any clue as to "state of things" that surrounded physical object – In that case, if such "state of things" or "facts" are disclosed which are in relation to physical object discovered, then that also would amount to discovery of fact within meaning of Section 27 of IEA. (Paras 117 and 118)