2003 Supreme(Del) 1027

High Court Of Delhi
STATE - Appellant
Versus
MOHD.AFZAL - Respondent
MURDER REF. 1 of 2003
Decided On : 10/29/2003

Headnote:Criminal Procedure - Attack on Parliament House — Attempt made to blow-up Parliament house while it was in Session — Case against accused No. 1 — A procuring hide outs for the terrorists and instrumental in smuggling of arms and ammunitions.

        Attack on Parliament House — Attempt made to blow-up. Parliament house while it was in Session — Circumstances against Accused No. 2 — Accused No. 2, an active participant in the conspiracy — Clear and cogent evidence against accused No. 2 establishing steps from knowledge to intent and finally agreement.

       Attack on Parliament House — Circumstances against Accused No. 3 (S.A.R. GILANI) — Explained.

       Attack on Parliament House — Circumstances against Accused No. 4 (AFZAN GURU @ NAVJOT SANDHU) — Explained.

       Recovery of the mobile phones, sim cards and paper slips bearing telephone numbers from the persons around the deceased terrorists stands proved — Recovery of these items, cannot be said to be tainted.

       Terrorist Act — Comparison of term Terrorist Act under two statutes POTA and TADA — Prevention of Terrorists Activities Act, 2002, Section 3(1) — Terrorist & Disruptive Activities (Prevention) Act, 1987, Section 3(1).

       Criminal Procedure Code, 1973 - Section 218 — Framing of charge — Section 218 embodies the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet, it cannot be read pedantically to provide escape route to an accused.

       Sections 366, 367, 368 — Death sentence — Confirmation — Power of High Court — Scope of these three sections has been interpreted by the Honble 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.

       Criminal Trial - Attack on Parliament House — Sanction for prosecution of accused under POTA and for Penal Code Offences — Validity of — In Union Territory of Delhi, sanction for prosecution granted by Lt. Governor being the administrator, is a valid one — Prevention of Terrorists Activities Act, 2002, Section 50, 2(h) — Criminal Procedure Code, 1973, Section 196

       Right of accused to be represented by counsel — Role of counsel — Every accused has right to be fairly and adequately represented in trial, especially where capital punishment is involved — Counsel play an important role in the resolution of issues in an adversarial system — Cross-examination conducted by counsel for the accused, jointly and singularly with other counsel of co-accused — Not a case of constructive denial of counsel.

       Cross examination - Where a witness is not cross-examined on any relevant aspect, the correctness of the sState ment made by a witness cannot be disputed.

       Evidence Act, 1872 - Section 9 — Requirement of Test Identification Parade — Test identification parade does not constitute a substantive evidence and they are governed by Section 162 Cr.P.C.

       Sections 24, 25, 26, 27, 30 — Confession — Admissibility.

       Section 24 — Confession — Retraction of — Delay — Belated retraction of the confession is sufficient to ignore the retraction.

       Section 65B(2) — Admissibility of electronic record — Electronic record are admissible when it is certified that the contents of a computer print out are generated by a computer satisfying the conditions of Sub-section 2, the certificate being signed by the person described therein.

       Section 138, 146 — Valuable right on the opposite party to cross-examine the witness tendered in evidence — If the correctness of a sState ment of a witness is disputed when in the witness box, attention of the witness must be drawn to the part of sState ment which is sought to be disputed, so that the witness has an opportunity to explain his sState ment.

       Explosive Substances Act, 1908 - Sections 3, 4 — Possession of explosive substances — Possession of explosive substances and Chemicals from accused Afzal and Shaukat from the hide outs procured by them stands established — Conviction to accused Afzal and Shaukat for having committed the offence under Section 3 as well as the offence under Section 4 of the Act.

       Section 5 — Explosive substances — Possession — No doubt charge framed does sState that the accused led the police to that place from where explosive substances were recovered and offence committed was under Section 5 of the Act, but it is clear that the substance of the charge, possession of the explosive substances with the accused — It cannot be said that the accused did not comprehend the charge or were misled, or that miscarriage of justice has been committed.

       Section 7 — Sanction — Testimony of witness — Testimony of witness went unchallenged in respect of the deposition made by him as to what material was placed and considered by the Commissioner of Police — Sanction accorded under Section 7 of the Explosive Substances Act meets the requirement of law.

       Indian Penal Code, 1860 - Section 120, 120B, 302, 307 — Sentence — Conviction — Conviction of accused Mohd. Afzal and accused Shaukat Hussain Guru in respect of the charges they stood convicted by the Special Judge, POTA — Accused S.A.R. Gilani and accused Afzan Guru @ Navjot Sandhu acquitted from the charges — 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 — Attack was on Parliament while in session — Sovereignty of the country was attacked — After the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place — It is held that for the offence of waging war, accused Mohd. Afzal and accused Shaukat Hussain Guru deserve the higher penalty — Modifying the sentence imposed on the said two accused under Section 121 IPC by awarding death sentence — Rest of the sentences imposed by the Special Judge stand affirmed.

       Section 120-B — Criminal conspiracy — Attack on Parliament House — Charge framed against accused alleged as vague for not giving the exact date of conspiracy — Conspiracy hatched in the darkness of secrecy — Merely non-mentioning of dates of conspiracy cannot make charge as vague.

       Section 120-B — Criminal conspiracy — Proof by direct evidence — Conspiracy being clandestine activity, Its covenants, are not formed openly — Hence, same to be inferred from circumstantial evidence.

       Section 121 — -Waging war against Government — Term war — Implication of — Term war a jural concept — Explained.

       Media Trial - Exposure of the accused to Media after their remand to police custody — Such exposure weakening the impact of the identification — Hence, practice of allowing the media to expose accused persons to be deprecated.

       Parliament attack case — Media Trial — Telecast of interview of accused in T.V. Channels — Plea, Media trial causes prejudice and hatred against accused — Possibility of Judges influenced by propaganda or adverse publicity — judges are trained, skilled and have sufficient experience to shut their minds receiving hearsay evidence.

       Police and Criminal Evidence (England) Act, 1984 - Section 69 — Electronic record — Admissibility — Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect.

       Prevention of Terrorists Activities Act, 2002 - Section 4 — Unauthorised possession of arms — Evidence on record establishes that accused were in unauthorised possession of arms and explosives recovered from the hide outs — Indeed they were lethal, thereforee, it is to be held that they were guilty of having committed the offence under Section 4 (b) of POTA.

       Section 6 — Charge — Prohibitory section and forfeits proceeds of terrorism to the Government — Not a penal section — Trial court has only passed an order of confiscation — Trial court has treated confiscation as penal and hence has framed a charge — No adverse consequences have flown, no miscarriage of justice has resulted.

       Section 20 — Charge there under — Charge could have been better worded and Charge 16 made a part of charge 12 — No prejudice has been caused — Accused cannot be said to be misled — No conviction has been rendered.

       Section 32 — Confession — Admissibility

       TADA Act, 1987 - Section 15, 21 — Confession — Admissibility.

       Words and Phrases - "War" — Definition — Jural concept.

       "thing" — Meaning