Insufficient evidence and lack of credible identification cannot establish guilt beyond reasonable doubt.

PRADEEP NANDRAJOG, J.(Oral)

1. Vide judgment and order dated 18.5.2004 the appellant has been convicted for the offence punishable under Section 302 read with Section 120B IPC; Section 25 and 27 of the Arms Act and Section 4 of the Explosives Substance Act. It has been held that the prosecution has successfully proved that the appellant, a national of Pakistan, committed a terrorist act, in that intruded into the Central Reserve Police Force Camp at village Jharoda Kalan on 18.10.2001 at 11:00 PM and shot dead Const.Nitin Puttewar. Benefit of doubt has been given to the co-accused Mohd.Abdula Mir, a resident of Jammu & Kashmir, holding that no evidence incriminating Mohd.Abdula Mir had emerged.

2. Vide order on sentence dated 21.5.2004 the sentence of death has been imposed upon the appellant for the offence punishable under Section 302/120B IPC as also for the offence punishable under Section 27/120B IPC. For the offence punishable under Section 4 of the Explosives Substance Act, sentence imposed is to undergo RI for 20 years.

3. As per the prosecution, on 18.10.2001 at 11:00 PM Const.L.H.Fernandes PW-2 heard a noise which was a mixture of screams and gun fire. He was sleeping then. He awoke from his slumber and came out of the barrack and flashed his torch. The beam of the torch illuminated the face of the appellant who was fleeing and the appellant retaliated by firing at Const.L.H.Farnandes, who survived due to the grace of God. Soon thereafter Const.Nitin Puttewar was found grievously injured and died on the way to the hospital. FIR 552/2001 for the offence under Section 307/302/120B IPC was registered on the statement Ex.PW-2/A of Const.L.H.Farnandes. The police was informed. Empty cartridges were recovered from the spot. The dead body of the Const.Nitin Puttewar was sent to the mortuary. As per post-mortem report he had died on receiving gun shots.

4. On 20.10.2001 information was received at PS Najafgarh which was noted vide DD No.14A, Ex.PW-29/A that an assault rifle with ammunition was seen in the field of Gopi Ram on Surakhpur road. SI Gianander went to the spot and recovered one assault rifle AK-57 and two magazines containing 56 live cartridges in the magazines and one live cartridge in the chamber of the assault rifle. FIR No.556/2001 was registered on said information.

5. On 27.10.2001 Prem Prakash was tilling his fields and his tractor got stuck and pulled out a bag from which magazines and hand bombs were recovered. Said information was received at PS Najafgarh and recorded vide DD No.18A, Ex.PW-34/A. SI Rajesh Kumar recovered 4 hand grenades and 5 magazines containing 144 bullets. The third FIR i.e. FIR No.572/2001 pertaining to said recovery was registered at PS Najafgarh.

6. No breakthrough could be achieved by the police at Najafgarh.

7. On 25.3.2002 the special task force of UP police at Luckhnow received secret information that a truck driver named Abdula was transporting militants from the State of Jammu and Kashmir to different destinations in India and the word Abdula was written in yellow colour on the windowpanes of his truck and that the truck would be coming to the fruit and vegetable market at Azad Pur or Sanjay Gandhi Transport Nagar in Delhi. Insp.S.P.Gupta checked truck No.JK 01A 7095 on 27.3.2002 at Sanjay Gandhi Transport Nagar and found the word Abdula written in yellow colour on the front side glass. He apprehended Mohd.Abdula Mir who confessed transporting terrorist of Lashkar-e-Toiba from Kashmir to Delhi and vice versa and that on 18.10.2001 he had transported 3 terrorists; namely, Abu Hussain, Abu Maaz and the appellant to Delhi. The three had fired at the C.R.P.F. Camp the same day i.e. on 18.10.2001 and that he took them back to Sri Nagar the next day.

8. The appellant was apprehended by the police of PS Ghazipur UP on 26.3.2002 and purportedly made a confessional statement Ex.PW-30/A recorded under Section 32 POTA by S.S.P. Luckhnow Sh.B.B.Bakshi admitting to have fired and