MOHD. ARIF @ ASHFAQ VERSUS STATE (NCT OF DELHI)

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRL.) NOS. 286-287 OF 2012

CRIMINAL APPEAL NOS. 98-99 OF 2009

MOHD. ARIF @ ASHFAQ …..Petitioner(s)

VERSUS

STATE (NCT OF DELHI) .....Respondent(s)

J U D G M E N T

Uday Umesh Lalit, CJI

1. These review petitions arise out of the judgment and order

dated 10.8.20111 passed by this Court in Criminal Appeal Nos. 98-

99/2009.

2. According to the prosecution, on the night of 22.12.2000

some intruders entered the area where the Unit of 7 Rajputana

Rifles of the Indian Army was stationed inside the Red Fort, New

Delhi. In the firing that was opened by the intruders, three Army

jawans lost their lives. The intruders then left by scaling the rearside boundary wall of the Red Fort. This led to the lodging of FIR

1 Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621

No. 688/2000 registered with Kotwali Police Station, New Delhi in

respect of offences punishable under Sections 302, 307, 186, 353,

120-B, 121, 121-A, 216 and 201 of the Indian Penal Code, 18602

read with Sections 25, 27, 54 and 59 of the Arms Act, 1959,

Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the

Explosive Substances Act, 1908 and Sections 420, 468, 471, 474

and 34, IPC. In the investigation, the involvement of the present

review petitioner was made out.

3. The review petitioner, who was tried for said offences, was

awarded death sentence vide judgment and order dated

31.10.2005 passed by the Court of Additional Sessions Judge,

Delhi in Sessions Case Nos. 1/2005, 2/2005, 5/2005, 7/2005,

8/2005, 9/2005, 10/2005 and 11/2005, which arose out of the

aforestated FIR. The award of death sentence was subject to

confirmation by the High Court.

4. The matter was thereafter considered by the High Court in

Death Sentence Reference No. 2/2005 with Criminal Appeal Nos.

891/2005, 892/2005, 907/2005, 927/2005, 944-945/2005,

946/2005, 273/2006 and 504/2006. The view taken by the trial

“IPC” for short

Court was affirmed by the High Court vide its judgment dated

13.9.20073.

5. The matter then reached this Court in the form of Criminal

Appeal Nos. 98-99/2009 at the instance of the review petitioner.

However, the challenge was negated by this Court and the award

of death sentence to the petitioner was affirmed vide judgment

dated 10.8.2011, which has resulted in filing of the instant review

petitions.

6. The instant review petitions had initially come up before the

Bench of two Judges and by order dated 28.8.2012, the review

petitions were dismissed. Curative Petition (Crl.) Nos.99-

100/2013 filed by the review petitioner sought to challenge the

view taken by the Division Bench of this Court in dismissal of the

appeals, as well as, the review petitions. However, the curative

petitions were also dismissed by this Court vide order dated

23.1.2014.

7. Soon thereafter, Writ Petition (Crl.) No. 77/2014 was

preferred by the review petitioner submitting inter alia, that the

review petitions in matters arising out of award of death sentence

be heard by a Bench of three Judges and in open Court. The

(2007) SCC Online Del 1259

Constitution Bench of this Court by its judgment dated 2.9.20144

concluded that in all cases in which death sentence was awarded

by the High Court, such matters be listed before a Bench of three

Judges. The relevant observations in paragraph 39 were as under:

“39. Henceforth, in all cases in which death sentence has been

awarded by the High Court in appeals pending before the

Supreme Court, only a bench of three Hon'ble Judges will hear

the same. This is for the reason that at least three judicially

trained minds need to apply their minds at the final stage of

the journey of a convict on death row, given the vagaries of the

sentencing procedure outlined above. At present, we are not

persuaded to have a minimum of 5 learned Judges hear all

death sentence cases. Further, we agree with the submission

of Shri Luthra that a review is ordinarily to be heard only by

the same bench which originally heard the criminal appeal.

This is obviously for the reason that in order that a review

succeeds, errors apparent on the record have to be found. It

is axiomatic that the same learned Judges alleged to have

committed the error be called upon now to rectify such error.

We, therefore, turn down Shri Venugopal's plea that two

additional Judges be added at the review stage in death

sentence cases.”

8. A question still arose: whether in matters where the review

petitions had already stood rejected when the aforementioned

decision was rendered by the Constitution Bench of this Court,

could there be reopening of the matter and the review petition be

reheard? A subsequent Constitution Bench in its order dated

19.1.20165 observed as under: -

“9.In the circumstances therefore and especially in view of the

fact that the petitioner is perhaps the only person that will

4 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2014) 9 SCC 737

5 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2019) 9 SCC 404

suffer the denial of the right to an open court hearing, we are

inclined to modify the judgment on review and direct that the

petitioner shall also be entitled to seek reopening of the

dismissal of the review petitions for an open court hearing

within one month from today. We permit the petitioner to

raise all such additional grounds in support of the said review

petition as may be legally permissible to him.”

9. In this backdrop, the instant review petitions are listed before

us for rehearing.

10. At this stage, we may set out certain circumstances which

were found to have been proved by the High Court and this Court.

In paragraph Nos. 182-191 of the judgment which is presently

under review, it was observed as under: -

“182. The High Court has held proved the following

circumstances against the appellant:

“(a) On the night of 22-12-2000 there was an incident of

firing inside Lal Quila when some intruders had managed

to enter that area of Lal Quila where the unit of 7th

Rajputana Rifles of the Indian Army was stationed.

(b) In that incident of shooting the intruders had fired

indiscriminately from their AK-56 rifles as a result of which

three army jawans received firearm injuries and lost their

lives.

(d) Immediately after the quick reaction team of the army

fired back upon the intruders as a result of which the

intruders escaped from the place of occurrence by scaling

over the rear side boundary wall of Lal Quila towards the

Ring Road side and when the place of occurrence was

searched by the army men many assault rifle fired

cartridge cases were recovered from the place of

occurrence.

(e) Immediately after the intruders who had resorted to

firing inside the army camp had escaped from there, calls

were made by someone on the telephones of two BBC

correspondents one of whom was stationed at Srinagar and

the other one was stationed at Delhi office of BBC and the

caller had informed them about the shooting incident

inside Lal Quila and had also claimed the responsibility of

that incident and that that was the job of Lashkar-e-Toiba,

which the prosecution claims to be a banned militant

organization indulging in acts of terrorism in our country.

(f) On the morning of 23-12-2000 one AK-56 rifle was

recovered from a place near Vijay Ghat on the Ring Road

behind Lal Quila.

(g) On 23-12-2000 when the policemen conducted search

around Lal Quila in the hope of getting some clue about

the culprits they found one piece of paper lying outside Lal

Quila near the rear side boundary wall towards Ring Road

side and on that piece of paper one Mobile Phone No.

9811278510 was written.

(h) Mobile Phone No. 9811278510 was used for making

calls to the two BBC correspondents (PWs 39 and 41)

immediately after the shooting incident inside Lal Quila

and the caller had claimed the responsibility for that

incident and had informed them that the incident was the

job of Lashkar-e-Toiba.

(i) The aforesaid mobile phone number found written on a

piece of paper lying behind Lal Quila had led the police up

to Flat No. 308-A, Ghazipur, New Delhi where accused

Mohd. Arif alias Ashfaq was found to be living and when

on being suspected of being involved in the shooting

incident he was apprehended on the night of 25-12-

2000/26-12-2000 one pistol and some live cartridges were

recovered from his possession for which he did not have

any licence.

(j) At the time of his arrest in case FIR No. 688 of 2000 one

mobile phone having No. 9811278510 was recovered from

his possession and it was the same mobile number from

which calls had been made to the two BBC correspondents

for informing them about the incident and Lashkar-e-Toiba

being responsible for that incident.

(k) Immediately after his apprehension accused Mohd. Arif

alias Ashfaq admitted his involvement in the shooting

incident inside Lal Quila and also disclosed to the police

about his another hide-out at G-73, Batla House, Muradi

Road, Okhla, New Delhi and pursuant to his disclosure the

police had gone to that hide-out where the occupant of that

house started firing upon the police team and when the

police team returned the firing, that person, who was later

on identified by accused Mohd. Arif alias Ashfaq to be one

Abu Shamal alias Faizal, died because of the firing resorted

to by the policemen. From House No. G-73, where the

encounter had taken place, one AK-56 rifle and some live

cartridges and hand grenades were recovered.

(l) Accused Mohd. Arif alias Ashfaq while in police custody

had also disclosed to the police that one assault rifle had

been thrown near Vijay Ghat after the incident. The police

had already recovered one AK-56 rifle from Vijay Ghat on

the morning of 23-12-2000. Accused Mohd. Arif alias

Ashfaq had thus the knowledge about the availability of

that AK-56 rifle at Vijay Ghat.

(m) Accused Mohd. Arif alias Ashfaq had also got recovered

one AK-56 rifle and some ammunition from behind Lal

Quila on 26-12-2000.

(n) Accused Mohd. Arif alias Ashfaq had also got recovered

three hand grenades from some place behind his computer

centre in Okhla on 1-1-2001 pursuant to his another

disclosure statement made by him while in police custody.

(o) When the assault rifle fired cartridge cases which were

recovered from the place of occurrence by the army men

after the intruders had escaped from there were examined

by the ballistic expert along with the AK-56 rifle which was

recovered at the instance of accused Mohd. Arif alias

Ashfaq from behind Lal Quila on 26-12-2000 and the AK56 rifle which was recovered from Vijay Ghat on 23-12-

2000 it was found by the ballistic expert (PW 202) that

some of the assault rifle fired cartridge cases had been fired

from the rifle recovered from behind Red Fort and some

had been fired from the other rifle Ih was recovered from

Vijay Ghat.

(p) Appellant-accused Mohd. Arif alias Ashfaq was a

Pakistani national and had entered the Indian territory

illegally.

(q) After making illegal entry into India appellant-accused

Mohd. Arif alias Ashfaq had been representing to the

people coming in his contact during his stays at different

places that he was a resident of Jammu and was doing the

business of shawls while, in fact, he had no such business

and he had been collecting money through hawala

channels.

(r) Accused Mohd. Arif alias Ashfaq had obtained a forged

ration card, Ext. PW-164/A wherein not only his house

number mentioned was not his correct address but even

the name of his wife shown therein was not Rehmana

Yusuf Farukhi. He had also forged his learner driving

licence, Ext. PW-13/C as well as one document, Ext. PW-

13/E purporting to be a photocopy of another ration card

in his name with his residential address of Ghaziabad

where he admittedly never resided and he submitted that

document with the Ghaziabad Transport Authority for

obtaining permanent driving licence. In the learner driving

licence also he had shown his residential addresses where

he had never actually resided. All that he did was to

conceal his real identity as a militant having entered the

Indian territory with the object of spreading terror with the

help of his other associate militants whom unfortunately

the police could not apprehend and some expired before

they could be tried.”

183. In addition to these circumstances, there is another

circumstance that a message was intercepted by BSF vide

Exhibit PW-162/A and proved by PW 162 Inspector J.S.

Chauhan dated 26-12-2000 wherein there was a specific

reference to the accused. Still another circumstance would be

that the accused had no ostensible means of livelihood and

yet he deposited Rs 29,50,000 in three accounts, namely,

Standard Chartered Grindlays Bank, Connaught Place

(known as ANZ Grindlays Bank) bearing Account No.

32263962 of M/s Nazir & Sons, Standard Chartered

Grindlays Bank bearing Account No. 28552609 of Bilal

Ahmad Kawa and Standard Chartered Bank bearing Account

No. 32181669 of Farooq Ahmed Qasid and also deposited

some amounts in the account of Rehmana Yusuf Farukhi and

he had no explanation of these huge amounts, their source or

their distribution. Lastly, the appellant gave a fanciful and a

completely false explanation about his entering in India and

his being a member of RAW and thereby, his having interacted

with Nain Singh (PW 20).

184. We are in complete agreement with the findings

regarding the incriminating circumstances as recorded by the

High Court. On the basis of the aforementioned

circumstances, the High Court came to the conclusion that

the appellant was responsible for the incident of shooting

inside Lal Quila (Red Fort) on the night of 22-12-2000, which

resulted in the death of three soldiers of army. It has also been

held by the High Court that this was a result of well-planned

conspiracy between the appellant and some other militants

including deceased Abu Shamal alias Faizal who was killed in

an encounter with the police at House No. G-73, Batla House,

Muradi Road, Okhla, New Delhi. The High Court has also

deduced that it was at the instance of the appellant that the

police could reach that spot.

185. The High Court has further come to the conclusion that

it was in a systematic manner that the appellant came to India

illegally and collected highly sophisticated arms and

ammunition meant for mass destruction. The High Court

further held that he chose to select Red Fort for an assault

along with his other associates, Red Fort being a place of

national importance for India. The High Court has also

recorded a finding that the chosen attack was on the army

camp which was stationed there to protect this monument of

national importance. The High Court has, therefore, deduced

that it was an act of waging war against the Government of

India. It is further held that the associates, with whom the

appellant had entered into conspiracy, had attacked the army

camp, which suggests that there was a conspiracy to wage war

against the Government of India, particularly, because in that

attack, sophisticated arms like AK-47 and AK-56 rifles and

hand grenades were used.

186. The High Court also took note that this aspect regarding

waging war was not even argued by the learned counsel

appearing for the defence. It is on this basis that the appellant

was held guilty for the offences punishable under Sections

120-B, 121-A, 121 IPC, Section 120-B read with Section 302

IPC and Sections 468/471/474 IPC and also the offences

under Sections 186/353/120-B IPC. He was also held guilty

for the offence under Section 14 of the Foreigners Act, since it

was proved that the appellant, a foreigner, had entered the

territory of India without obtaining the necessary permissions

and clearance. Similarly, the appellant was also held guilty for

the offences under the Arms Act as well as the Explosive

Substances Act on account of his being found with a pistol

and live cartridges.

187. The law on the circumstantial evidence is, by now,

settled. In Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116 this Court drew out the

following test for relying upon the circumstantial evidence:

(SCC p. 185, para 153)

“153. … (1) the circumstances from which the

conclusion of guilt is to be drawn should be fully

established.

(2) the facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is

to say, they should not be explainable on any other

hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature

and tendency,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have

been done by the accused.”

The principle of this judgment was thereafter followed in a

number of decisions, they being Tanviben Pankajkumar

Divetia v. State of Gujarat (1997) 7 SCC 156, State (NCT of

Delhi) v. Navjot Sandhu (2005) 11 SCC 600, Vikram

Singh v. State of Punjab (2010) 3 SCC 56 and Aftab Ahmad

Anasari v. State of Uttaranchal (2010) 2 SCC 583, etc.

188. It is to be noted that in the last mentioned decision

of Aftab Ahmad Anasari v. State of Uttaranchal (2010) 2 SCC

583, the observation made is to the following effect: (SCC p.

589, paras 13-14)

“13. In cases where evidence is of a circumstantial nature,

the circumstances from which the conclusion of guilt is to

be drawn should, in the first instance, be fully established.

Each fact must be proved individually and only thereafter

the court should consider the total cumulative effect of all

the proved facts, each one of which reinforces the

conclusion of the guilt. If the combined effect of all the facts

taken together is conclusive in establishing the guilt of the

accused, the conviction would be justified even though it

may be that one or more of these facts, by itself/themselves,

is/are not decisive. The circumstances proved should be

such as to exclude every hypothesis except the one sought

to be proved. But this does not mean that before the

prosecution case succeeds in a case of circumstantial

evidence alone, it must exclude each and every hypothesis

suggested by the accused, howsoever extravagant and

fanciful it might be.

14. There must be a chain of evidence so far complete as

not to leave any reasonable ground for conclusion

consistent with the innocence of the accused and it must

be such as to show that within all human probability, the

act must have been done by the accused. Where the

various links in a chain are in themselves complete, then

a false plea or a false defence may be called into aid only

to lend assurance to the court.”

(emphasis supplied)

189. The Court further went on to hold that in applying this

principle, distinction must be made between the facts called

primary or basic, on the one hand, and the inference of facts

to be drawn from them, on the other. The Court further

mentioned that: (Aftab Ahmad Anasari case (2010) 2 SCC

583, SCC p. 590, para 15)

“15. … In drawing these inferences or presumptions, the

court must have regard to the common course of natural

events, and to human conduct and their relations to the

facts of the particular case.”

To the similar effect are the observations made in Vikram

Singh v. State of Punjab (2010) 3 SCC 56.

190. There can be no dispute that in a case entirely dependent

on the circumstantial evidence, the responsibility of the

prosecution is more as compared to the case where the ocular

testimony or the direct evidence, as the case may be, is

available. The Court, before relying on the circumstantial

evidence and convicting the accused thereby has to satisfy

itself completely that there is no other inference consistent

with the innocence of the accused possible nor is there any

plausible explanation. The Court must, therefore, make up its

mind about the inferences to be drawn from each proved

circumstance and should also consider the cumulative effect

thereof. In doing this, the Court has to satisfy its conscience

that it is not proceeding on the imaginary inferences or its

prejudices and that there could be no other inference possible

excepting the guilt on the part of the accused.

191. We respectfully agree with the principles drawn in the

abovementioned cases and hold that the prosecution was

successful in establishing the abovementioned circumstances

against the appellant, individually, as well as, cumulatively.

There indeed cannot be a universal test applicable commonly

to all the situations for reaching an inference that the accused

is guilty on the basis of the proved circumstances against him

nor could there be any quantitative test made applicable. At

times, there may be only a few circumstances available to

reach a conclusion of the guilt on the part of the accused and

at times, even if there are large numbers of circumstances

proved, they may not be enough to reach the conclusion of

guilt on the part of the accused. It is the quality of each

individual circumstance that is material and that would

essentially depend upon the quality of evidence. Fanciful

imagination in such cases has no place. Clear and irrefutable

logic would be an essential factor in arriving at the verdict of

guilt on the basis of the proved circumstances. In our opinion,

the present case is such, as would pass all the tests so far

devised by this Court in the realm of criminal jurisprudence.”

11. Some of the other features of the matter, as noted by this

Court, were: -

“151. The prosecution proved 9 cash deposit slips of Grindlays

Bank, the total amount being Rs 29,50,000. According to the

prosecution, these were in appellant’s handwriting while the

depositors’ names have been mentioned as Aslam, Salim

Khan, R.K. Traders and Rashid. We have already discussed

about the fake residential address given by the appellant while

opening the account with HDFC Bank. The details of this

account were proved by Sanjeev Srivastava (PW 22). He proved

Exhibits PW-22/B, C and F. Exhibit PW-22/F is a copy of the

account statement of Rehmana, the wife of the accused which

suggests that from 15-9-2000 onwards up to 14-12-2000, on

various dates, amounts like Rs 10,000, Rs 40,000, Rs 50,000,

Rs 1,50,000, Rs 2,00,000, etc. were deposited in cash. The

total amount deposited was Rs 5,53,500. There is absolutely

no explanation by the appellant about the source from which

these amounts came.

xxx xxx xxx

153. The most important link with the HDFC account as also

with the deposit slips of Standard Chartered Grindlays Bank

came to light. Dr. M.A. Ali (PW 216), SSO, CFSL, CBI, New

Delhi, on the basis of his report, deposed that the account

opening form of HDFC Bank of the appellant, 9 deposit slips

of Standard Chartered Grindlays Bank as also deposit slips of

State Bank of India account of Rehmana Yusuf Farukhi bore

the handwriting of the appellant. This clinches the issue about

the account opened in HDFC Bank. It is to be noted that there

were three accounts in Standard Chartered Grindlays Bank

in the name of M/s Nazir & Sons, Farooq Ahmed Qasid (A-4)

and Bilal Ahmad Kawa (A-18) which had Account Nos.

32263962, 28552609 and 32181669 respectively. The

investigating agency collected the documents from Standard

Chartered Grindlays Bank including 9 cash deposit receipts

as also documents regarding the Account Nos. 32263962,

28552609 and 32181669. 9 cash deposit slips are purportedly

in the name of Aslam, Salim Khan, R.K. Traders and Rashid

and all these have been proved to be in the handwriting of the

appellant.

xxx xxx xxx

159. The argument of Ms Jaiswal, learned counsel appearing

on behalf of the appellant, that Nazir Ahmad Qasid (A-3) and

Farooq Ahmed Qasid (A-4) have already been acquitted, is of

no consequence. We may point out that there is absolutely no

explanation by the appellant either by way of crossexamination of the witnesses or by way of his statement under

Section 313 CrPC as to where all these amounts had come

from and why did he deposit huge amounts in the three

accounts mentioned above. Rs 29,50,000 is not an ordinary

sum. Also, there is no evidence that in his account in HDFC

Bank, the appellant has Rs 6 lakhs. Further, a very sizeable

amount is shown to have been paid to Rehmana Yusuf

Farukhi in her account in State Bank of India. How did the

appellant receive all these amounts and from where, are

questions that remain unanswered in the absence of any

explanation and more particularly because the appellant had

no ostensible means of livelihood. It would have to be held that

the appellant was dealing with huge sums of money and he

has no explanation therefor. This is certainly to be viewed as

an incriminating circumstance against the appellant. The

silence on this issue is only telling of his nefarious design.

160. It is obvious that the appellant was a very important

wheel in the whole machinery which was working against the

sovereignty of this country. All this was supported by the fact

that 9 deposit slips, the bank forms for opening the accounts,

the slip through which the amount was deposited in the

account of Rehmana Yusuf Farukhi, were all proved to be in

the handwriting of the appellant. We have absolutely no

reason to reject the evidence of the handwriting expert. All this

suggests that the appellant was weaving his web of terrorist

activities by taking recourse to falsehood one after the other

including his residential address and also creating false

documents.”

12. In these review petitions, the challenge is raised principally

on four grounds: -

(a) The concerned Courts committed error in allowing call

records to be admitted in evidence, in the absence of

an appropriate certificate under Section 65B of the

Indian Evidence Act, 18726.

“the Evidence Act”, for short.

(b) The disclosure statements of the review petitioner

must be taken to be inadmissible on account of illtreatment meted out to him during the intervening

night between his actual arrest and his formal arrest.

Abu Shamal, who was stated to be the accomplice of

the petitioner, at Batla House, New Delhi, could not be

associated with the disclosure statement of the review

petitioner.

(d) Any possibility of retribution and rehabilitation of the

review petitioner, or that he would continue to be a

threat to the society, was not considered by the

Courts.

13. On the other hand, it is submitted on behalf of the State, that

the scope of a review petition even in matters arising out of award

of death sentence would be extremely limited. Reliance has been

placed on the decisions of this Court in Vikram Singh alias Vicky

Walia & Anr. vs. State of Punjab & Anr.7 and specially the

following paragraph: -

(2017) 8 SCC 518

“23. In view of the above, it is clear that scope, ambit and

parameters of review jurisdiction are well defined. Normally in

a criminal proceeding, review applications cannot be

entertained except on the ground of error apparent on the face

of the record. Further, the power given to this Court under

Article 137 is wider and in an appropriate case can be

exercised to mitigate a manifest injustice. By review

application an applicant cannot be allowed to reargue the

appeal on the grounds which were urged at the time of the

hearing of the criminal appeal. Even if the applicant succeeds

in establishing that there may be another view possible on the

conviction or sentence of the accused that is not a sufficient

ground for review. This Court shall exercise its jurisdiction to

review only when a glaring omission or patent mistake has

crept in the earlier decision due to judicial fallibility. There has

to be an error apparent on the face of the record leading to

miscarriage of justice to exercise the review jurisdiction under

Article 137 read with Order 40 Rule 1. There has to be a

material error manifest on the face of the record with results

in the miscarriage of justice.”

14. Reliance has further been placed on the decision of this Court

in Akshay Kumar Singh vs. State (NCT of Delhi)

8, where it was

observed by this Court as under: -

“7. In this review petition, the petitioner prays for review of the

judgment dated 5-5-2017 [Mukesh v. State (NCT of Delhi),

(2017) 6 SCC 1]. In the review petition before us, the petitioner

has again sought to assail the merits of the prosecution case

and the findings rendered thereon which cannot be permitted.

8. It is no longer res integra that scope of review is limited and

review cannot be entertained except in cases of error apparent

on the face of the record. Article 137 of the Constitution of

India empowers the Supreme Court to review any judgment

pronounced or made, subject, of course, to the provisions of

any law made by Parliament or any rule made under Article

145 of the Constitution of India.

9. Order 47 Rule 1 of the Supreme Court Rules, 2013 dealing

with review reads as follows:

“1. The Court may review its judgment or order, but no

application for review will be entertained in a civil

(2020) 3 SCC 431

proceeding except on the ground mentioned in Order 47

Rule 1 of the Code, and in a criminal proceeding except on

the ground of an error apparent on the face of the record.”

As per the Supreme Court Rules, review in the criminal

proceedings is permissible only on the ground of error

apparent on the face of the record.

xxx xxx xxx

11. Review is a not a rehearing of the appeal over again. In a

review petition, it is not for the Court to reappreciate the

evidence and reach a different conclusion. The scope of review

jurisdiction has been elaborately considered by this Court in

number of cases and the well-settled principles have been

reiterated time and again……”

15. The basic submission in the instant matter, as advanced by

Mr. Siddharth Agarwal, learned senior counsel on behalf of the

review petitioner is about the admissibility of electronic record

being Call Data Records (CDRs) (Exhibit PW-198/B1-B3), CDRs

(Exhibit PW-198/E) and CDR (Exhibit PW-229/A). It is submitted

that on the strength of the law declared by this

Court in Anvar P.V. vs. P.K. Basheer & Ors.9, as affirmed by this

Court in Arjun Panditrao Khotkar vs. Kailash Kushanrao

Gorantyal & Ors.10, certification under Section 65B of the

Evidence Act would be a pre-requisite for admissibility of an

electronic record such as CDRs; that there being total noncompliance of this mandatory requirement, the afore-stated CDRs

(2014) 10 SCC 473

10 (2020) 7 SCC 1

would be inadmissible and must be eschewed from consideration

at every juncture. The extension of the submission is that the

entire fulcrum of the prosecution case rested on these CDRs and

minus this evidence, there is hardly anything which could prove

the identity and involvement of the petitioner in the crime in

question.

16. The submission advanced on behalf of the review petitioner

on the first ground as set out in the Note given by the learned

Senior Counsel is as under: -

“A.Admissibility of electronic records

(i) The central feature of the Prosecution case permeating the

entire Judgment under Review are circumstances and

inferences that have been drawn on the strength of anlysis of

electronic records (CDRs). Specifically, Circumstance H, I and

J deal with this issue.

(ii) Case involves analysis of Call Detail Records (“CDRs”) of

9811278510 (“8510”) & 9811242154 (“2154”). Prosecution

Case is that PW-229 MC Sharma conducted investigation

pertaining to CDRs of these two numbers.

• PW-229 (@ 305-308 of Vol. II)

(iii)In respect of 8510, Prosecution produced CDR which is

Ex.PW-198/ B1-B3 (@ 57-59 of Vol.III) whereas for 2154

prosecution has produced CDRs Ex.PW-198/E (@67-75 of

Vol.III) & Ex. PW-229/A (@ 48-52 of Vol.III). None of these

have any certificate as required under Section 65B in IEA.

(iv)The number 8510 (sim card) was never recovered and the

handset in which it was used from 26.10.2000 to 14.11.2000

(IMEI ending with “0240”) was also not recovered. No

Customer Application Form (CAF) or any other document that

establishes ownership or possession was produced. Not a

single person known to the Petitioner was sked to provide his

mobile number (despite multiple being examined) [See: PW-20

(@ 12 of Vol.I), PW-31 (@ 4 of Vol.I) PW-37 (@ 50 of Vol.I), PW56 (@ 60 of Vol.I), PW-232 (@ 415 of Vol.II)]. Police never

accessed the instrument to examine call logs, message etc.

(PW-148 @ 96 of Vol.I) and the sole link to all inferences is the

purported CDRs.

(v) CDRs provided by PW-198 Rajiv Pandit in February/

March 2001 (Ex. PW-198/A @ 63 of Vol.III; Ex.PW-198/D @

89 of Vol.III) were not and could not have been the basis for

analysis by PW-229. The Court has acted upon oral testimony

of PW-229 as to the contents of CDRs of 8510, and Ex.PW229/A (@ 48 of Vol.III) – unauthenticated secondary evidence

of secondary evidence – with respect to contents of CDRs of

2154. This is the teeth of S.65B IEA, S.63/65 IEA as well as

S.59 IEA. Even otherwise, the contents of the CDRs are

different from the oral testimony of PW-229 whereas the

Supreme Court has proceeded relying upon the oral testimony

[@ Para 97 (p.525) of Compilation of Judgments and Orders

Pertaining to Petitioner]

• Tomaso Bruno & Anr. v. State of UP, (2015) 7 SCC 178

(Paras 20-27)

(vi)Certification under S.65B IEA is a pre-requisite to

admissibility of an electronic record such as CDRs. There is

no compliance with this mandatory requirement. As such,

CDRs are inadmissible and necessarily must be excluded from

consideration.”

17. On the issue of admissibility of call records without there

being appropriate certificate under Section 65-B(4) of the Evidence

Act a bench of two Judges of this Court in State (NCT of Delhi)

vs. Navjot Sandhu alias Afsan Guru11, had observed:-

“148. It is contended by Mr Shanti Bhushan, appearing for

the accused Shaukat that the call records relating to the

cellular Phone No. 9811573506 said to have been used by

Shaukat have not been proved as per the requirements of law

and their genuineness is in doubt. The call records relating to

the other mobile numbers related to Gilani and Afzal are also

subjected to the same criticism. It is the contention of the

learned counsel that in the absence of a certificate issued

under sub-section (4) of Section 65-B of the Evidence Act with

the particulars enumerated in clauses (a) to (c), the

information contained in the electronic record cannot be

11 (2005) 11 SCC 600

adduced in evidence and in any case in the absence of

examination of a competent witness acquainted with the

functioning of the computers during the relevant time and the

manner in which the printouts were taken, even secondary

evidence under Section 63 is not admissible.

149. Two witnesses were examined to prove the printouts of

the computerised record furnished by the cellular service

providers, namely, AirTel (Bharti Cellular Limited) and ESSAR

Cellphone. The call details of Mobile No. 9811573506 (which

was seized from Shaukat's house) are contained in Exhibits

36/1 to 36/2. The covering letters signed by the Nodal Officer

of Sterling Cellular Limited are Exts. P-36/6 and P-36/7

bearing the dates 13th and 18th December respectively. The

call details of Mobile No. 9811489429 attributed to Afzal are

contained in Ext. P-36/3 and the covering letter addressed to

the Inspector (special cell) — PW 66 signed by the Nodal

Officer is Ext. 36/5. The call details of 9810081228 belonging

to the subscriber S.A.R. Gilani are contained in Ext. 35/8. The

above two phones were obtained on cash-card basis. The

covering letter pertaining thereto and certain other mobile

numbers were signed by the Security Manager of Bharti

Cellular Limited. The call details relating to another Cellphone

Number 9810693456 pertaining to Mohammed is Ext. 35/5.

These documents i.e. Ext. 35 series were filed by PW 35 who

is the person that signed the covering letter dated 17th

December bearing Ext. 35/1. PW 35 deposed that “all the call

details are computerised sheets obtained from the computer”.

He clarified that:

“the switch which is maintained in the computer in

respect of each telephone receives the signal of the

telephone number, called or received and serves

them to the server and it is the server which keeps

the record of the calls made or received. In case

where the call is made and the receiver does not pick

up the phone, the server which makes a loop of the

route would not register it.”

As far as PW 36 is concerned, he identified the signatures of

the General Manager of his Company who signed Ext. P-36

series. He testified to the fact that the call details of the

particular telephone numbers were contained in the relevant

exhibits produced by him. It is significant to note that no

suggestion was put to these two witnesses touching the

authenticity of the call records or the possible tampering with

the entries, although the arguments have proceeded on the

lines that there could have been fabrication. In support of

such argument, the duplication of entries in Exts. 36/2 and

36/3 and that there was some discrepancy relating to the cell

ID and IMEI number of the handset at certain places was

pointed out. The factum of presence of duplicate entries was

elicited by the counsel appearing for Afsan Guru from PW 36

when PW 36 was in the witness box. The evidence of DW 10 a

technical expert, was only to the effect that it was possible to

clone a SIM by means of a SIM programmer which to his

knowledge, was not available in Delhi or elsewhere. His

evidence was only of a general nature envisaging a theoretical

possibility and not with reference to specific instances.

150. According to Section 63, secondary evidence means and

includes, among other things, “copies made from the original

by mechanical processes which in themselves insure the

accuracy of the copy, and copies compared with such copies”.

Section 65 enables secondary evidence of the contents of a

document to be adduced if the original is of such a nature as

not to be easily movable. It is not in dispute that the

information contained in the call records is stored in huge

servers which cannot be easily moved and produced in the

court. That is what the High Court has also observed at para

276. Hence, printouts taken from the computers/servers by

mechanical process and certified by a responsible official of

the service-providing company can be led in evidence through

a witness who can identify the signatures of the certifying

officer or otherwise speak of the facts based on his personal

knowledge. Irrespective of the compliance with the

requirements of Section 65-B, which is a provision dealing

with admissibility of electronic records, there is no bar to

adducing secondary evidence under the other provisions of

the Evidence Act, namely, Sections 63 and 65. It may be that

the certificate containing the details in sub-section (4) of

Section 65-B is not filed in the instant case, but that does not

mean that secondary evidence cannot be given even if the law

permits such evidence to be given in the circumstances

mentioned in the relevant provisions, namely, Sections 63 and

65.

151. The learned Senior Counsel Mr Shanti Bhushan then

contended that the witnesses examined were not technical

persons acquainted with the functioning of the computers,

nor do they have personal knowledge of the details stored in

the servers of the computers. We do not find substance in this

argument. Both the witnesses were responsible officials of the

companies concerned who deposed to the fact that they were

the printouts obtained from the computer records. In fact the

evidence of PW 35 shows that he is fairly familiar with the

computer system and its output. If there was some

questioning vis-à-vis specific details or specific suggestion of

fabrication of printouts, it would have been obligatory on the

part of the prosecution to call a technical expert directly in the

know of things. The following observations of the House of

Lords in the case of R. v. Shephard 1993 AC 380 are quite

apposite : (All ER p. 231b-c)

“The nature of the evidence to discharge the

burden of showing that there has been no improper

use of the computer and that it was operating

properly will inevitably vary from case to case. The

evidence must be tailored to suit the needs of the

case. I suspect that it will very rarely be necessary

to call an expert and that in the vast majority of

cases it will be possible to discharge the burden by

calling a witness who is familiar with the operation

of the computer in the sense of knowing what the

computer is required to do and who can say that it

is doing it properly.”

Such a view was expressed even in the face of a more

stringent provision in Section 69 of the Police and Criminal

Act, 1984 in the UK casting a positive obligation on the part

of the prosecution to lead evidence in respect of proof of the

computer record. We agree with the submission of Mr Gopal

Subramanium that the burden of prosecution under the

Indian law cannot be said to be higher than what was laid

down in R. v. Shephard 1993 AC 380.

152. Although necessary suggestions were not put forward to

the witnesses so as to discredit the correctness/genuineness

of the call records produced, we would prefer to examine the

points made out by the learned counsel for the accused

independently. As already noted, one such contention was

about the presence of duplicate entries in Exts. 36/2 and

36/3. We feel that an innocuous error in the computer

recording is being magnified to discredit the entire document

containing the details without any warrant. As explained by

the learned counsel for the State, the computer, at the first

instance, instead of recording the IMEI number of the mobile

instrument, had recorded the IMEI and cell ID (location) of

the person calling/called by the subscriber. The computer

rectified this obvious error immediately and modified the

record to show the correct details viz. the IMEI and the cell

ID of the subscriber only. The document is self-explanatory

of the error. A perusal of both the call records with reference

to the call at 11 : 19 : 14 hours exchanged between

9811489429 (Afzal's) and 9811573506 (Shaukat's) shows

that the said call was recorded twice in the call records. The

fact that the same call has been recorded twice in the call

records of the calling and called party simultaneously

demonstrates beyond doubt that the correctness or

genuineness of the call is beyond doubt. Further, on a

comparative perusal of the two call records, the details of the

cell ID and the IMEI of the two numbers are also recorded.

Thus, as rightly pointed out by the counsel for the State Mr

Gopal Subramanium, the same call has been recorded two

times, first with the cell ID and IMEI number of the calling

number (9811489429). The same explanation holds good for

the call at 11 : 32 : 40 hours. Far from supporting the

contention of the defence, the above facts, evident from the

perusal of the call records, would clearly show that the

system was working satisfactorily and it promptly checked

and rectified the mistake that occurred. As already noticed,

it was not suggested nor could it be suggested that there was

any manipulation or material deficiency in the computer on

account of these two errors. Above all, the printouts

pertaining to the call details exhibited by the prosecution are

of such regularity and continuity that it would be legitimate

to draw a presumption that the system was functional and

the output was produced by the computer in regular use,

whether this fact was specifically deposed to by the witness

or not. We are therefore of the view that the call records are

admissible and reliable and rightly made use of by the

prosecution.”

18. A bench of three Judges of this Court in Anvar P.V.9 did not

approve the view taken in Navjot Sandhu11 and observed –

“20. Proof of electronic record is a special provision

introduced by the IT Act amending various provisions under

the Evidence Act. The very caption of Section 65-A of the

Evidence Act, read with Sections 59 and 65-B is sufficient to

hold that the special provisions on evidence relating to

electronic record shall be governed by the procedure

prescribed under Section 65-B of the Evidence Act. That is a

complete code in itself. Being a special law, the general law

under Sections 63 and 65 has to yield.

21. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC

600 a two-Judge Bench of this Court had an occasion to

consider an issue on production of electronic record as

evidence. While considering the printouts of the

computerised records of the calls pertaining to the

cellphones, it was held at para 150 as follows: (SCC p. 714)

“150. According to Section 63, “secondary evidence”

means and includes, among other things, ‘copies

made from the original by mechanical processes

which in themselves insure the accuracy of the

copy, and copies compared with such copies’.

Section 65 enables secondary evidence of the

contents of a document to be adduced if the original

is of such a nature as not to be easily movable. It is

not in dispute that the information contained in the

call records is stored in huge servers which cannot

be easily moved and produced in the court. That is

what the High Court has also observed [Ed.:

Reference is to State v. Mohd. Afzal, (2003) 71 DRJ

178] at para 276. Hence, printouts taken from the

computers/servers by mechanical process and

certified by a responsible official of the serviceproviding company can be led in evidence through

a witness who can identify the signatures of the

certifying officer or otherwise speak of the facts

based on his personal knowledge. Irrespective of the

compliance with the requirements of Section 65-B,

which is a provision dealing with admissibility of

electronic records, there is no bar to adducing

secondary evidence under the other provisions of

the Evidence Act, namely, Sections 63 and 65. It

may be that the certificate containing the details in

sub-section (4) of Section 65-B is not filed in the

instant case, but that does not mean that secondary

evidence cannot be given even if the law permits

such evidence to be given in the circumstances

mentioned in the relevant provisions, namely,

Sections 63 and 65.”

It may be seen that it was a case where a responsible official

had duly certified the document at the time of production

itself. The signatures in the certificate were also identified.

That is apparently in compliance with the procedure

prescribed under Section 65-B of the Evidence Act. However,

it was held that irrespective of the compliance with the

requirements of Section 65-B, which is a special provision

dealing with admissibility of the electronic record, there is no

bar in adducing secondary evidence, under Sections 63 and

65, of an electronic record.

22. The evidence relating to electronic record, as noted

hereinbefore, being a special provision, the general law on

secondary evidence under Section 63 read with Section 65 of

the Evidence Act shall yield to the same. Generalia

specialibus non derogant, special law will always prevail over

the general law. It appears, the court omitted to take note of

Sections 59 and 65-A dealing with the admissibility of

electronic record. Sections 63 and 65 have no application in

the case of secondary evidence by way of electronic record;

the same is wholly governed by Sections 65-A and 65-B. To

that extent, the statement of law on admissibility of

secondary evidence pertaining to electronic record, as stated

by this Court in State (NCT of Delhi) v. Navjot Sandhu, (2005)

11 SCC 600, does not lay down the correct legal position. It

requires to be overruled and we do so. An electronic record

by way of secondary evidence shall not be admitted in

evidence unless the requirements under Section 65-B are

satisfied. Thus, in the case of CD, VCD, chip, etc., the same

shall be accompanied by the certificate in terms of Section

65-B obtained at the time of taking the document, without

which, the secondary evidence pertaining to that electronic

record, is inadmissible.”

19. In Tomaso Bruno & Anr. v. State of Uttar Pradesh12,

another bench of three Judges however struck a slightly different

chord and made following observations:

“24. With the advancement of information technology,

scientific temper in the individual and at the institutional

level is to pervade the methods of investigation. With the

increasing impact of technology in everyday life and as a

result, the production of electronic evidence in cases has

become relevant to establish the guilt of the accused or the

liability of the defendant. Electronic documents stricto sensu

are admitted as material evidence. With the amendment to

the Evidence Act in 2000, Sections 65-A and 65-B were

introduced into Chapter V relating to documentary evidence.

Section 65-A provides that contents of electronic records may

be admitted as evidence if the criteria provided in Section 65-

B is complied with. The computer generated electronic

records in evidence are admissible at a trial if proved in the

manner specified by Section 65-B of the Evidence Act. Subsection (1) of Section 65-B makes admissible as a document,

paper printout of electronic records stored in optical or

magnetic media produced by a computer, subject to the

fulfilment of the conditions specified in sub-section (2) of

Section 65-B. Secondary evidence of contents of document

can also be led under Section 65 of the Evidence Act. PW 13

stated that he saw the full video recording of the fateful night

in the CCTV camera, but he has not recorded the same in the

case diary as nothing substantial to be adduced as evidence

was present in it.”

12 (2015) 7 SCC 178.

20. In Sonu alias Amar v. State of Haryana13, a bench of two

Judges ruled that an objection that CDRs be not taken into

consideration pertained to the mode or method of proof and if not

taken at the trial, cannot be permitted at the appellate stage. It

was stated: -

“32. It is nobody's case that CDRs which are a form of

electronic record are not inherently admissible in evidence.

The objection is that they were marked before the trial court

without a certificate as required by Section 65-B(4). It is clear

from the judgments referred to supra that an objection

relating to the mode or method of proof has to be raised at

the time of marking of the document as an exhibit and not

later. The crucial test, as affirmed by this Court, is whether

the defect could have been cured at the stage of marking the

document. Applying this test to the present case, if an

objection was taken to the CDRs being marked without a

certificate, the Court could have given the prosecution an

opportunity to rectify the deficiency. It is also clear from the

above judgments that objections regarding admissibility of

documents which are per se inadmissible can be taken even

at the appellate stage. Admissibility of a document which is

inherently inadmissible is an issue which can be taken up at

the appellate stage because it is a fundamental issue. The

mode or method of proof is procedural and objections, if not

taken at the trial, cannot be permitted at the appellate stage.

If the objections to the mode of proof are permitted to be

taken at the appellate stage by a party, the other side does

not have an opportunity of rectifying the deficiencies. The

learned Senior Counsel for the State referred to statements

under Section 161 CrPC, 1973 as an example of documents

falling under the said category of inherently inadmissible

evidence. CDRs do not fall in the said category of documents.

We are satisfied that an objection that CDRs are unreliable

due to violation of the procedure prescribed in Section 65-

B(4) cannot be permitted to be raised at this stage as the

objection relates to the mode or method of proof.”

13 (2017) 8 SCC 570

21. Later, another bench of two Judges of this Court in Shafi

Mohammed v. State of Himachal Pradesh14 observed as under:

“20. An apprehension was expressed on the question of

applicability of conditions under Section 65-B(4) of the

Evidence Act to the effect that if a statement was given in

evidence, a certificate was required in terms of the said

provision from a person occupying a responsible position in

relation to operation of the relevant device or the

management of relevant activities. It was submitted that if

the electronic evidence was relevant and produced by a

person who was not in custody of the device from which the

electronic document was generated, requirement of such

certificate could not be mandatory. It was submitted that

Section 65-B of the Evidence Act was a procedural provision

to prove relevant admissible evidence and was intended to

supplement the law on the point by declaring that any

information in an electronic record, covered by the said

provision, was to be deemed to be a document and admissible

in any proceedings without further proof of the original. This

provision could not be read in derogation of the existing law

on admissibility of electronic evidence.

21. We have been taken through certain decisions which may

be referred to. In Ram Singh v. Ram Singh, 1985 Supp SCC

611, a three-Judge Bench considered the said issue. English

judgments in R. v. Maqsud Ali, (1966) 1 QB 688)

and R. v. Robson, (1972) 1 WLR 651 and American Law as

noted in American Jurisprudence 2d (Vol. 29) p. 494, were

cited with approval to the effect that it will be wrong to deny

to the law of evidence advantages to be gained by new

techniques and new devices, provided the accuracy of the

recording can be proved. Such evidence should always be

regarded with some caution and assessed in the light of all

the circumstances of each case. Electronic evidence was held

to be admissible subject to safeguards adopted by the Court

about the authenticity of the same. In the case of taperecording, it was observed that voice of the speaker must be

duly identified, accuracy of the statement was required to be

proved by the maker of the record, possibility of tampering

was required to be ruled out. Reliability of the piece of

evidence is certainly a matter to be determined in the facts

and circumstances of a fact situation. However, threshold

14 (2018) 2 SCC 801.

admissibility of an electronic evidence cannot be ruled out on

any technicality if the same was relevant.”

22. The last decision on the point is a three Judge bench decision

of this Court in Arjun Panditrao Khotkar10 which was rendered

on a reference to a larger bench because of the observations in

Shafi Mohammad14. The bench concluded in Arjun Panditrao10

as under: -

“73. The reference is thus answered by stating that:

73.1. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, as

clarified by us hereinabove, is the law declared by this Court

on Section 65-B of the Evidence Act. The judgment in Tomaso

Bruno v. State of U.P., (2015) 7 SCC 178, being per incuriam,

does not lay down the law correctly. Also, the judgment

in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 and

the judgment dated 3-4-2018 reported as Shafhi

Mohd. v. State of H.P., (2018) 5 SCC 311s, do not lay down

the law correctly and are therefore overruled.

73.2. The clarification referred to above is that the required

certificate under Section 65-B(4) is unnecessary if the

original document itself is produced. This can be done by the

owner of a laptop computer, computer tablet or even a mobile

phone, by stepping into the witness box and proving that the

device concerned, on which the original information is first

stored, is owned and/or operated by him. In cases where the

“computer” happens to be a part of a “computer system” or

“computer network” and it becomes impossible to physically

bring such system or network to the court, then the only

means of providing information contained in such electronic

record can be in accordance with Section 65-B(1), together

with the requisite certificate under Section 65-B(4). The last

sentence in para 24 in Anvar P.V. v. P.K. Basheer, (2014) 10

SCC 473 which reads as “… if an electronic record as such is

used as primary evidence under Section 62 of the Evidence

Act …” is thus clarified; it is to be read without the words

“under Section 62 of the Evidence Act,…”. With this

clarification, the law stated in para 24 of Anvar P.V. v. P.K.

Basheer, (2014) 10 SCC 473 does not need to be revisited.

73.3. The general directions issued in para 64 (supra) shall

hereafter be followed by courts that deal with electronic

evidence, to ensure their preservation, and production of

certificate at the appropriate stage. These directions shall

apply in all proceedings, till rules and directions under

Section 67-C of the Information Technology Act and data

retention conditions are formulated for compliance by

telecom and internet service providers.

73.4. Appropriate rules and directions should be framed in

exercise of the Information Technology Act, by exercising

powers such as in Section 67-C, and also framing suitable

rules for the retention of data involved in trial of offences,

their segregation, rules of chain of custody, stamping and

record maintenance, for the entire duration of trials and

appeals, and also in regard to preservation of the metadata

to avoid corruption. Likewise, appropriate rules for

preservation, retrieval and production of electronic record,

should be framed as indicated earlier, after considering the

report of the Committee constituted by the Chief Justices'

Conference in April 2016.”

It must now be taken to have been settled that the decision

of this Court in Anvar P.V.9 as clarified in Arjun Panditrao10

the law declared on Section 65B of the Evidence Act.

23. Navjot Sandhu11 was decided on 4.8.2005 i.e., before the

judgment was rendered by the Trial Court in the instant matter.

The subsequent judgments of the High Court and this Court were

passed on 13.9.2007 and 10.8.2011 respectively affirming the

award of death sentence. These two judgments were delivered

prior to the decision of this Court in Anvar P.V.9 which was given

on 18.9.2014. The judgments by the trial Court, High Court and

this Court were thus well before the decision in Anvar P.V.9 and

were essentially in the backdrop of law laid down in Navjot

Sandhu11. If we go by the principle accepted in paragraph 32 of

the decision in Sonu alias Amar13, the matter may stand on a

completely different footing. It is for this reason that reliance has

been placed on certain decisions of this Court to submit that the

matter need not be reopened on issues which were dealt with in

accordance with the law then prevailing. However, since the

instant matter pertains to award of death sentence, this review

petition must be considered in light of the decisions made by this

Court in Anvar P.V.9 and Arjun Panditrao10

24. Consequently, we must eschew, for the present purposes, the

electronic evidence in the form of CDRs which was without any

appropriate certificate under Section 65-B(4) of the Evidence Act.

25. If we consider the circumstances which were culled out by

this Court in Paragraph 182 of the judgment under review,

circumstances mentioned at Serial Nos. ‘h’ and ‘j’ become

extremely weak as the tracing of calls received by PWs 39 and 41

to Mobile Phone No.9811278510 was possible only through CDRs.

These circumstances must not, therefore, be taken into account.

26. However, the other circumstances stated in said paragraph

182 as well as in subsequent paragraphs remain completely

unaffected. As was stated by this Court in paragraphs 151, 153,

159, 169 and finally summed up in paragraphs 183 and 184, the

findings on the issue of the receipt and disbursal of money and the

fact that the police could reach the spot referred to in Paragraph

184, at the instance of the review petitioner are very relevant and

crucial circumstances. One of the important circumstances is also

the feature referred to in circumstance ‘o’ in Paragraph 182 as

stated above. In conclusion, it must therefore be observed that

even after eschewing circumstances ‘h’ and ‘j’ which were directly

attributable to the CDRs relied upon by the prosecution, the other

circumstances on record do clearly spell out and prove beyond any

doubt the involvement of the review petitioner in the crime in

question.

27. We now turn to grounds (b), (c) and (d) raised on behalf of the

review petitioner as stated in para 12 supra. Grounds ‘b’ and ‘c’

are purely factual in nature. The disclosure statement, as a matter

of fact, was held to have been proved by the Courts below and this

Court. In our review jurisdiction, it will not be possible to enter

into questions regarding admissibility of such disclosure

statement on issues of fact. The disclosure statement led the

police to the hide out at G-73, Batla House, New Delhi and when

the police team arrived with the review petitioner, there was firing

upon the police team as stated in circumstance ‘g’ in paragraph

182. After the person concerned named Abu Shamal alias Faisal

died in the encounter, certain fire arms and ammunition were

recovered. The submission that such recovery of ammunition or

the encounter of Abu Shamal could not be associated with the

disclosure statement of the review petitioner is not quite correct.

We therefore reject both the grounds taken in ‘b’ and ‘c’ as referred

to in Para 12 supra.

28. We now turn to the last ground regarding possibility of

retribution and rehabilitation of the review petitioner. On this

issue, the response of the State in its Written Submissions is as

follows: -

“3. The petitioner, admittedly a Pakistani national, has been

convicted inter-alia under Section 121,302,120B,121A,181 and

353 of the Indian Penal Code, Section 25 of the Arms Act,

Section 4 of the Explosive Substances Act, Section 14 of the

Foreigners Act, for waging war against the Government of India

and committing murder in pursuance thereof. This Hon’ble

Court has taken the view that the cases of such nature,

involving acts of terror which challenge the unity, integrity and

sovereignty of India can only be adequately compensated by

awarding the death sentence. Reference in this regard is drawn

to the judgment of this Hon’ble Court in State of NCT of Delhi

v. Navjot Sandhu (2005) 11 SCC 600 (The Parliament

Attack Case), where it was held:

252. In the instant case, there can be no doubt that the

most appropriate punishment is death sentence. That is

what has been awarded by the trial court and the High

Court. The present case, which has no parallel in the

history of the Indian Republic, presents us in crystal-

clear terms, a spectacle of the rarest of rare cases. The

very idea of attacking and overpowering a sovereign

democratic institution by using powerful arms and

explosives and imperilling the safety of a multitude of

peoples’ representatives, constitutional functionaries and

officials of the Government of India and engaging in a

combat with the security forces is a terrorist act of the

gravest severity. It is a classic example of rarest of rare

cases.

253. The gravity of the crime conceived by the

conspirators with the potential of causing enormous

casualties and dislocating the functioning of the

Government as well as disrupting the normal life of the

people of India is something which cannot be described

in words. The incident, which resulted in heavy

casualties, had shaken the entire nation, and the

collective conscience of the society will only be satisfied

if capital punishment is awarded to the offender. The

challenge to the unity, integrity and sovereignty of India

by these acts of terrorists and conspirators, can only be

compensated by giving maximum punishment to the

person who is proved to be the conspirator in this

treacherous act. The appellant, who is a surrendered

militant and who was bent upon repeating the acts of

treason against the nation, is a menace to the society and

his life should become extinct. Accordingly, we uphold the

death sentence.

(emphasis supplied)

4. Similarly in Yakub Abdul Razak Memon v. State of

Maharashtra, (2013) 13 SCC 1, this Hon’ble Court while

dealing with the award of the death sentence to persons

convicted inter-alia under various IPC offences including

Waging of War against the Government of India and the

Prevention of Terrorism Act, discussed the wide ambit of the

term “terrorism” and held that the offence of terrorism itself was

an aggravating circumstance:

“Terrorism”

809. The term “terrorism” is a concept that is commonly and

widely used in everyday parlance and is derived from the

Latin word “terror” which means the state of intense fear

and submission to it. There is no particular form of terror,

hence, anything intended to create terror in the minds of

general public in order to endanger the lives of the members

and damage to public property may be termed as a terrorist

act and a manifestation of terrorism. Black's Law Dictionary

defines terrorism as:

“Terrorism.— The use or threat of violence to intimidate or

cause panic, esp. as a means of affecting political conduct."

(8th Edn., p. 1512.)

810. Terrorism is a global phenomenon in today's world and

India is one of the worst victims of terrorist acts. Terrorism

has a long history of being used to achieve political,

religious and ideological objectives. Acts of terrorism can

range from threats to actual assassinations, kidnappings,

airline hijackings bomb scares, car bombs, building

explosions mailing of dangerous materials, computer based

attacks and the use of chemical, biological, and nuclear

weapons-weapons of mass destruction (WMD).

…

883.4. Crime of terrorism is in itself an aggravating

circumstance as it carries a "special stigmatisation due to

the deliberate form of inhuman treatment it represents and

the severity of the pain and suffering inflicted"

(emphasis supplied)

5. In Mohd. Ajmal Amir Kasab v. State of Maharashtra,

(2012) 9 SCC 1, this Hon'ble Court while convicting the

Appellant therein for the terrorist attack of 26/11 in Mumbai,

stated that facts of the case, the cross-border conspiracy, and

the intention to strike fear into the heart of the victims, that the

death sentence was warranted. While the court recognised that

death should be the exception, this Hon'ble Court noted that as

long as the death penalty remained on the statute books for

crimes such as waging of war, there would be certain cases

where its imposition would be justified. In this regard, attention

is respectfully drawn to the following paragraphs:

573. In short, this is a case of terrorist attack from

across the border. It has a magnitude of unprecedented

enormity on all scales. The conspiracy behind the attack

was as deep and large as it was vicious. The

preparation and training for the execution was as

thorough as the execution was ruthless. In terms of loss

of life and property, and more importantly in its

traumatising effect, this case stands alone, or it is at

least the very rarest of rare cases to come before this

Court since the birth of the Republic. Therefore, it should

also attract the rarest of rare punishment.

…

577. Putting the matter once again quite simply, in this

country death as a penalty has been held to be

constitutionally valid, though it is indeed to be awarded

in the "rarest of rare cases when the alternative option

(of life sentence) is unquestionably foreclosed". Now, as

long as the death penalty remains on the statute book

as punishment for certain offences, including "waging

war" and murder, it logically follows that there must be

some cases, howsoever rare or one in a million, that

would call for inflicting that penalty. That being the

position we fail to see what case would attract the death

penalty, if not the case of the appellant. To hold back

the death penalty in this case would amount to

obdurately declaring that this Court rejects death as

lawful penalty even though it is on the statute book and

held valid by the Constitutional Benches of this Court.

34. No ground for review of the Death Sentence is made out as

the three tests stand fully satisfied. All three Courts have

recorded elaborate reasons for why the present case was one

which warranted the death sentence, and have considered the

crime, the criminal and whether the case could be said to be

the rarest of the rare.

1. This Hon'ble Court has recorded elaborate findings

in the judgment presently under review on sentencing

as to why the present case satisfies all three tests

including the "rarest of the rare" test. Firstly, this

Hon'ble Court found that the nature of the crime, being

an attack on the Red Fort, was nothing short of an

attack on Mother India itself, secondly, that so far as

the nature of the criminal was concerned, no

mitigating circumstances of any kind had been

brought on record and thirdly, that the nature of the

crime, the fact that it was a planned pre-meditated

attack on a symbol of the seat of power of the

Government of India warranted nothing short of the

highest punishment. The Court held:

"213. This was, in our opinion, a unique case

where Red Fort, a place of paramount

importance for every Indian heart was

attacked where three Indian soldiers lost their

lives. This is a place with glorious history, a

place of great honour for every Indian, a place

with which every Indian is attached

emotionally, and a place from where our first

Prime Minister delivered his speech on 15-8-

1947, the day when India broke the shackles

of foreign rule and became a free country. It

has since then been a tradition that every

Hon'ble Prime Minister of this country delivers

an address to the nation on every 15th

August to commemorate that great event. This

fort was visualised and constructed by the

Mughal Emperor Shahjahan who is known as

"Shahjahan the builder". It took nine years for

its completion. It was here that Shahjahan

ascended the throne on 18-4-1648 amidst

recitation of sacred aayates of Holy Quran

and mantras from Hindu scriptures. The great

historical monument thereafter saw the rule

of number of Mughal Emperors including

Aurangzeb. It also saw its most unfortunate

capture by Nadir Shah. It was in 1837 that

the last Mughal Emperor Bahadur Shah Zafar

II took over the throne.

214. It must be remembered that it was

during the empire of Bahadur Shah Zafar II

that the First War of Independence was

fought. Red Fort became the ultimate goal

during that War of Independence which broke

out in the month of May 1857. The Fort

breathed free air for a brief period. But

ultimately in the month of September 1857, it

was captured by the British. Red Fort is not

just one of the several magnificent

monuments that were built by the Mughal

emperors during their reign for nearly three

centuries. It is not just another place which

people from within and outside the country

visit to have a glimpse of the massive walls

on which the Fort stands or the exquisite

workmanship it displays. It is not simply a

tourist destination in the capital that draws

thousands every year to peep and revel into

the glory of the times bygone. Its importance

lies in the fact that it has for centuries

symbolised the seat of power in this country.

It has symbolised the supremacy of the

Mughal and the British empires just as it

symbolises after Independence the

sovereignty of the world's largest democratic

republic. It is a national symbol that evokes

the feelings of nationalism amongst the

countrymen and reminds them of the

sacrifices that the freedom fighters made for

the liberation of this country from foreign rule.

215. No wonder even after the fall of the Fort

to the British forces in the First War of

Independence in 1857 and the shifting of the

seat of power from Red Fort to Calcutta and

later to New Delhi, Pt. Jawahar Lal Nehru

after his historic "Tryst with Destiny" speech

unfurled the tricolour from the ramparts of

Red Fort on 15-8-1947. That singular event

symbolised the end of the British rule in this

country and the birth of an independent India.

An event that is relived and re-acted every

succeeding year since 1917, when every

incumbent Prime Minister addresses the

nation from atop this great and historic Fort

reminding the countrymen of the importance

of freedom, the need for its preservation and

the values of constitutional democracy that

guarantees the freedoms so very

fundamental to the preservation of the unity

and integrity of this country.

216. An attack on a symbol that is so deeply

entrenched in the national psyche was,

therefore, nothing but an attack on the very

essence of the hard-earned freedom and

liberty so very dear to the people of this

country. An attack on a symbol like Red Fort

was an assault on the nation's will and

resolve to preserve its integrity and

sovereignty at all costs. It was a challenge not

only to the army battalions stationed inside

the monument but the entire nation. It was a

challenge to the very fabric of a secular

constitutional democracy this country has

adopted and everything that is good and dear

to our countrymen. It was a blatant,

brazenfaced and audacious act aimed to

overawe the Government of India. It was

meant to show that the enemy could with

impunity reach and destroy the very vitals of

an institution so dear to our fellow

countrymen for what it signified for them. It is

not for no reason that whosoever comes to

Delhi has a yearning to visit Red Fort. It is for

these reasons that this place has become a

place of honour for Indians.

217. No one can ever forget the glorious

moments when the Indians irrespective of

their religions fought their First War of

Independence and shed their blood. It was,

therefore, but natural for the foreigner

enemies to plan an attack on the army

specially kept to guard this great monument.

This was not only an attack on Red Fort or the

army stationed therein, this was an arrogant

assault on the self-respect of this great nation.

It was a well thought out insult offered to

question the sovereignty of this great nation

by foreign nationals. Therefore, this case

becomes a rarest of the rare case. This was

nothing but an undeclared war by some

foreign mercenaries like the present appellant

and his other partner in conspiracy Abu

Shamal and some others who either got killed

or escaped. In conspiring to bring about such

kind of attack and then carrying out their

nefarious activities in systematic manner to

make an attack possible was nothing but an

attempt to question the sovereignty of India.

Therefore, even without any reference to any

other case law, we hold this case to be the

rarest of the rare case.

…

223. …..During the whole debate the learned

defence counsel did not attempt to bring any

mitigating circumstance. In fact, this is a

unique case where there is one most

aggravating circumstance that it was a direct

attack on the unity, integrity and sovereignty

of India by foreigners. Thus, it was an attack

on Mother India. This is apart from the fact

that as many as three persons had lost their

lives. The conspirators had no place in India.

The appellant was a foreign national and had

entered India without any authorisation or

even justification. This is apart from the fact

that the appellant built up a conspiracy by

practising deceit and committing various

other offences in furtherance of the conspiracy

to wage war against India as also to commit

murders by launching an unprovoked attack

on the soldiers of the Indian Army. We,

therefore, have no doubts that death sentence

was the only sentence in the peculiar

circumstance of this case.”

29. The decisions referred to in the Written Submissions show

that when there is challenge to the unity, integrity and sovereignty

of India by acts of terrorism, such acts are taken as the most

aggravating circumstances. It is well accepted that the cumulative

effect of the aggravating factors and the mitigating circumstances

must be taken into account before the death sentence is awarded.

In Vasanta Sampat Dupare vs. State of Maharashtra15, while

dealing with a case, where death sentence was awarded in a crime

relating to offences punishable under Sections 302, 363, 367,

376(2)(f) and 201 of the IPC, this Court had observed that the

aggravating circumstances had clearly outweighed the mitigating

circumstances. It was stated: -

“20. It is thus well settled, “the court would consider the

cumulative effect of both the aspects (namely, aggravating

factors as well as mitigating circumstances) and it may not

be very appropriate for the Court to decide the most

significant aspect of sentencing policy with reference to one

of the classes completely ignoring other classes under other

heads and it is the primary duty of the Court to balance the

two”. Further, “it is always preferred not to fetter the judicial

discretion by attempting to make excessive enumeration, in

one way or another; and that both aspects, namely,

aggravating and mitigating circumstances have to be given

their respective weightage and that the Court has to strike

the balance between the two and see towards which side the

scale/balance of justice tilts”. With these principles in mind,

we now consider the present review petition.

21. The material placed on record shows that after the

judgment Vasanta Sampat Dupare v. State of Maharashtra,

(2015) 1 SCC 253 under review, the petitioner has completed

Bachelors Preparatory Programme offered by Indira Gandhi

15 (2017) 6 SCC 631

National Open University enabling him to prepare for

Bachelor level study and that he has also completed the

Gandhi Vichar Pariksha and had participated in drawing

competition organised sometime in January 2016. It is

asserted that the jail record of the petitioner is without any

blemish. The matter is not contested as regards Conditions

(1), (2), (5), (6) and (7) as stated in para 206 of the decision

in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, but

what is now being projected is that there is a possibility of

the accused being reformed and rehabilitated. Though these

attempts on part of the petitioner are after the judgment

Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1

SCC 253 under review, we have considered the material in

that behalf to see if those circumstances warrant a different

view. We have given anxious consideration to the material on

record but find that the aggravating circumstances, namely,

the extreme depravity and the barbaric manner in which the

crime was committed and the fact that the victim was a

helpless girl of four years clearly outweigh the mitigating

circumstances now brought on record. Having taken an

overall view of the matter, in our considered view, no case is

made out to take a different view in the matter. We, therefore,

affirm the view taken in the judgment Vasanta Sampat

Dupare v. State of Maharashtra, (2015) 1 SCC 253 under

review and dismiss the present review petitions.”

30. Coming back to the instant case, there is nothing on record

which can be taken to be a mitigating circumstance in favour of

the review petitioner. The suggestion that there is a possibility of

retribution and rehabilitation, is not made out from and supported

by any material on record. On the other hand, the aggravating

circumstances evident from the record and specially the fact that

there was a direct attack on the unity, integrity and sovereignty of

India, completely outweigh the factors which may even remotely be

brought into consideration as mitigating circumstances on record.

The submission so advanced under ground (d) does not merit any

acceptance and is, therefore, rejected.

31. Consequently, we do not find any merit in the instant review

petitions, which are accordingly dismissed.

….………………………..CJI

[Uday Umesh Lalit]

….…………………………..J.

[S. Ravindra Bhat]

….…………………………..J.

[Bela M. Trivedi ]

New Delhi;

November 3, 2022.

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MOHD. ARIF @ ASHFAQ VERSUS STATE (NCT OF DELHI)

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