2014 Supreme(SC) 438

SUPREME COURT OF INDIA
A.K. Patnaik, Fakkir Mohamed Ibrahim Kalifulla, JJ.
Md. Jamiludin Nasir – Appellant
VERSUS
State of West Bengal – Respondent
CRIMINAL APPEAL NOS.1240 -1241 OF 2010 With
Aftab Ahmed Ansari @ Aftab Ansari – Appellant
VERSUS
The State of West Bengal – Respondent
CRIMINAL APPEAL NOS.1242 -1243 OF 2010
Decided On : 21-05-2014

IMPORTANT POINTS
Section 27(3) of the Arms Act, 1959 havuing been struck down by (2012) 3 SCC 346, conviction thereunder cannot be sustained.
Confession of an accused if corroborated can be used against other co-accused.

Headnote:(a) Arms Act, 1959 – Section 27(3) – Struck down vide (2012) 3 SCC 346 – Conviction thereunder cannot be sustained. (Para 11, 89)

       (2012) 3 SCC 346 – Relied upon

       (b) Code of Criminal Procedure, 1973 – Section 164 – Magistrate recording the confession thorough with ingredients – Procedures scrupulously adhered to – No infirmity. (Para 17, 24)

       (c) Code of Criminal procedure, 1973 – Section 164 – Confession – Appellant in judicial custody from 13.02.2002 and 27.02.2002 – Produced by a SI of police before CJM on 21.02.2002 for recording confession – Appellant under police custody on 21.02.2002 in different and independent case – Produced before Magistrate for remand of judicial custody in the other case and also for recording confession in instant case – However confession not recorded on that date while in police custody – Confession recorded the other day – No lacuna in recording of confession – So-called retraction was not by way of a specific pleading – Confession of appellant Nasir was recorded in accordance with Section 164 Cr.P.C. (Para 21, 49, 55, 58, 62, 118)

       (1995) 2 SCC 76; (2007) 12 SCC 230 – Relied upon

       (2003) 3 SCC 21; (2005) 11 SCC 600; AIR 1964 SC 1184; (2011) 2 SCC 490 – Distinguished

       (d) Code of Criminal procedure, 1973 – Section 164 – Confession – Meticulous description of men and material, date, time and events including the passwords and e-mail addresses – Could have been revealed only by a person who was really acquainted with those details – No non-corroborative factor established – Very difficult for anyone to imagine such detailed facts and put it in a narrative form – No non-corroborative factor can be attributed to dislodge the confession. (Para 36, 45)

       (e) Code of Criminal Procedure, 1973 – Section 164 – Time factor – For any statement involving time some allowance should always be given. (Para 46)

       (f) Code of Criminal Procedure, 1973 – Section 164 – Accused confessing in his statement use of AK 47 – Non recovery of AK 47 – Cannot be a ground to disbelieve the confessional statement. (Para 47)

       (2012) 12 SCC 339 – Relied upon

       (g) Criminal Trial – Witness stating that he narrated the incident to his friend, an Inspector – Inspector not examined being ill – Medical records produced in court – Non-examination not causing any dent in the evidence. (Para 93)

       (h) Indian Evidence Act, 1872 – Section 32 – Oral dying declaration – Although cannot be relied upon as dying declaration for want of legal sanction – Does not mean that it cannot be used as evidence at all. (Para 101)

       (i) Indian Penal Code, 1860 – Sections 121, 121A and 122 IPC read along with 120B – Oral and documentary evidence supported by confession of appellant – Establishing conspiracy for insurrection against the State – Attracting charges under Sections 121, 121A and 122 IPC read along with 120B – Various e-mail messages transacted between the appellants and other conspirators – Revealing the loaded mind set of conspirators for executing the plans originally developed by deceased Asif and appellant Aftab and ultimately implemented by resorting to shooting spree at the American Centre – Overwhelming documentary and oral evidence placed before Courts below – Courts below rightly concluding that the appellants along with the other accused conspired for waging a war against the State. (Para 108, 111)

       JT 2013 (5) SC 142; (2003) 10 SCC 586; (1971) 3 SCC 432 – Relied upon

       (j) Indian evidence Act, 1872 – Section 30 – Confession of appellant Nasir – Rightly applied against appellant Aftab being supported by independent evidence.

       AIR 1964 SC 1184; (2002) 7 SCC 334 – Distinguished

       (k) Code of Criminal procedure, 1973 – Section 164 r/w section 30, Indian Evidence Act, 1872 – a No contradiction in the confessional; statement – Supported and corroborated by other oral and documentary evidence – reliance on such statement fully justified. (Para 121)

       (l) Indian Evidence Act 1872 – Section 10 and 30 – Confession of a co-accused cannot be treated as substantive evidence to convict any accused other than the maker of the confession – Confession sufficiently proved – Found to affect the maker as well as co-accused – Can be taken into consideration against the other accused – In view of overwhelming independent evidence, confession of appellant Nasir can be fully applied and relied upon. (Para 123, 125)

       (1961) B.L.R. 661; (2003) 5 SCC 589 – Relied upon

       (m) Criminal trial – Confession – Fully corroborated by other oral and documentary evidence as well as material objects – Rightly relied upon to convict the accused persons. (Para 134)

       (1988) 3 SCC 609; (1999) 5 SCC 253; (2003) 3 SCC 21; AIR 1987 SC 1222 – Distinguished

       (2003) 1 SCC 21 – Referred

       (n) Indian Penal Code, 1860 – Sections 121, 121A, 122 r/w 120B; 302, 307 333 r/w 120B; 467, 471 r/w 468 r/w Section 120B; 427 r/w 120B; sections 3, 7 and 27(2), Arma Act, 1959 r/w 120B, IPC – Waging of war or attempot to wage sucgh war against the government of India – Conspiring therefor – Relevant principles and factors – Fully established – No infirmtity in conviction. (Para 138, 140, 141, 142, 143)

       (2005) 11 SCC 600; (2012) 9 SCC 1 – Relied upon

       (o) Indian Penal Code, 1860 – Sections 121A, 121, 122 and 302, 307, 333 r/w 120B – Death sentence – Sentencing policy – Principles and factors to be kept in mind restated. (Para 153, 154)

       (2012) 8 SCC 537; AIR 2012 SC 3802; (2011) 13 SCC 621; (2012) 9 SCC 1; (2012) 4 SCC 257; (2011) 7 SCC 437; (2008) 13 SCC 767; (2011) 2 SCC 764; (2012) 4 SCC 289 – Relied upon

       (p) Administration of Justice – Sentencing – Offences committeed by appellants Aftab and Nasir – Devilish, diabolic, horrendous, vicious and wicked offences committd by appellants Aftab and Nasir of – Magnitude of offences cannot be lessoned on any account – However, role of Appellant Nasir held a shade lesser than that attributed to Appellant Aftab. (Para 157)

       (q) Indian Penal Code, 1860 – Sections 121, 121A, 122, 302, 307, 333 read with 120B; and section 45 – Five police personnel killed and around 13 police personnel and other civilians grievously injured – Damage to the public property – Conviction under the sections charged with justified – However, this case cannot be equated with those of Navjot Sandhu; Mohammed Ajmal Mohammad Amir Kasab; and Mohd. Arif – Death penalty not warranted though it calls for other deterrent punishment – Appellant Aftab deserves awarded imprisonment for life for the entirety of his life – Apperllant Nasir imposed life imprisonment for a minimum period of 30 years. (Para 157, 158)

       (2011) 13 SCC 621; AIR 1961 SC 600; (2012) 6 SCC 107; (2013) 3 SCC 294 – Relied upon

       Facts of the case:

       Altogether 17 accused were charged with offices u/s 121A, 121, 122, 302, 307, 333, 467, 471 and 468 r/w 120B, and sections 25(1A), 27(2), and 27(3) of the Arms Act in what came to be known as American Centre case. Out of the 17, only 9 accused came to be tried. By a Judgment dated 26.04.2005, the Trial Court found A1-Mohd. Jamiludin Nasir, A2-Adil Hassan, A3-Rehan Alam, A6-Musarrat Hussain, A7-Nushrat Alak, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar guilty of charges under Sections 121A, 121, 122 of IPC and Sections 302, 307, 333, 467, 471 and 468 IPC read with Section 120B of IPC. They were also found guilty of the offences under Sections 25(1A), 27(2), and 27(3) of the Arms Act read with Section 120B of IPC. The trial Court in its Judgment ultimately convicted A1Jamiludin Nasir, A2-Adil Hussain, A3-Rehan Alam, A6-Musarrat Hussain, A7-Hasrat Alam, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar and acquitted A4-Mohd. Shakeel Mallick and A5-Patel Dilip Kumar Kantilal of all the charges framed against them and were set at liberty forthwith if not required in any other case. Thereafter, by its order dated 27.04.2005, imposed the sentence of death for the offence under Section 27(3) of the Arms Act as mandated under the said provision, sentenced them to death for the charge under Section 121 IPC apart from other sentences of imprisonment for offences under Sections 121A, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B and 468 read with 120B of IPC 25(1A), 27(2) and 27(3) of the Arms Act read with 120B IPC. The trial Court held that all the convicts who were found guilty were to be hanged till death.

       The High Court acquitted A2-Adil Hussain, A3-Rehan Alam of all the charges. A6-Musarrat Hussain, A7-Nushrat Alak and A9-Shakir Akhtar were acquitted of the offence of waging of war but convicted only for the offences under Sections 467 read with 120B, 468 read with 120B and 471 read with 120B IPC and a lesser sentence was imposed. The conviction and sentence of A1-Mohd. Jamiludin Nasir and A8-Aftab Ahmed Ansari was confirmed on all counts.

       This case concerns only with the appeals filed by Nasir and Aftab.

       Finding of the Court:

       Appellants have been rightly convicted.

       Result: Appeals partly allowed.