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

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

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CRL.) NOS. 286-287 OF 2012
IN
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
2
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
2
“IPC” for short
3
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
3
(2007) SCC Online Del 1259
4
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
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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.
(c) The death of three army jawans was homicidal.
(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
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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
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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-
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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.
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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,
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(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
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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.”
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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
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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.
6
“the Evidence Act”, for short.
14
(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.
(c) The recovery of ammunition or the encounter of one
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: -
7
(2017) 8 SCC 518
15
“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
8
(2020) 3 SCC 431
16
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
9
(2014) 10 SCC 473
10 (2020) 7 SCC 1
17
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
18
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
19
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
20
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
21
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
22
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
23
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;
24
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.
25
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
26
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.
27
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.
28
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
is
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
29
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
30
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
31
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-
32
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:
33
“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
34
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
35
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
36
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
37
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.”
38
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
39
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.
40
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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