Criminal Appeal Nos. 98-99 of 2009. Case: Mohd. Arif @ Ashfaq Vs State of NCT of Delhi. Supreme Court (India)
| Case Number | Criminal Appeal Nos. 98-99 of 2009 |
| Counsel | For Appellant: Kamini Jaiswal, Abhimanue Shreshtha and Divyesh Pratap Singh, Advs. and For Respondents: Gopal Subramanium, SG, Mukul Gupta, Sr. Adv., Satyakam, Anubhav Kumar, Sadhna Sandhu, Som Prakash, Anchit Sharma, Rajat Katyal, Sanjeev Joshi, Divya Chaturvedi, D.S. Mahra and Anil Katiyal, Advs. |
| Judges | V.S. Sirpurkar and T.S. Thakur, JJ. |
| Issue | Explosive Substance Act - Sections 4 and 5; Arms Act - Sections 3, 25 and 27; Evidence Act - Sections 24, 25, 26, 27, 28, 29 and 30; Indian Penal Code - Sections 43, 120A, 120B, 121, 121A, 186, 302, 307, 353, 420, 468, 471 and 474; Criminal Procedure Code (CrPC), 1973 - Sections 37, 43, 46(1), 129 and 313 |
| Citation | JT 2011 (9) SC 563, 2011 (8) SCALE 328 |
| Judgement Date | August 10, 2011 |
| Court | Supreme Court (India) |
Judgment:
V.S. Sirpurkar, J.
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The Appellant (admittedly a Pakistani national) challenges his concurrent conviction by the trial Court and the High Court as also the death sentence awarded to him, in this appeal.
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On 22.12.2000 at about 9 p.m. in the evening some intruders started indiscriminate firing and gunned down three army Jawans belonging to 7th Rajputana Rifles. This battalion was placed in Red Fort for its protection considering the importance of Red Fort in the history of India. There was a Quick Reaction Team of this battalion which returned the firing towards the intruders. However, no intruder was killed and the intruders were successful in escaping by scaling over the rear side boundary wall of the Red Fort. This attack rocked the whole nation generally and the city of Delhi in particular as Red Fort is very significant in the history which was taken over by British Army way back in 1857 and was retrieved back to India on 15.8.1947. It is also significant to note that the Prime Minister addresses the nation from this very Red Fort on every 15th of August.
The three unfortunate soldiers who lost their lives in this attack were:
(i) A civilian Sentry namely, Abdullah Thakur
(ii) Rifleman (Barber) Uma Shankar
(iii) Naik Ashok Kumar, who was injured and then succumbed to his injuries later on.
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The Red Fort comes within the local jurisdiction of Police Station Kotwali. The Information was recorded by DD No. 19A, Exhibit PW-15/B and Sub-Inspector (S.I.) Rajinder Singh (PW-137) rushed to the spot. SHO Roop Lal (PW-234) who was the Station House Officer of Kotwali police station also reached the spot and recorded the statement of one Capt. S.P. Patwardhan (PW-189) which was treated as the First Information Report. This First Information Report refers to two persons in dark clothing and armed with AK 56/47 rifles having entered the Red Fort from the direction of Saleem Garh Gate/Yamuna Bridge. It is further stated that first they fired at the civilian Sentry Abdullah Thakur, secondly they came across rifleman (barber) Uma Shankar near Rajputana Rifles MT lines and fired at him due to which he died on the spot. It is further mentioned that lastly the intruders ran into the room in the unit lines close to the office complex and fired shots at Naik Ashok Kumar who was seriously injured. The FIR further mentions that thereafter they ran towards ASI Museum complex and fired in the direction of police guard room located inside the Museum. At this stage, the quick reaction team started firing at them. However, they escaped into the wooded area close to the ring road. The FIR also mentions that some fired/unfired ammunition was recovered from the spot.
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The investigation started on this basis. During the examination of the spot, one live cartridge Exhibit PW-115/38 and number of cartridge cases (Exhibit PW-115/1-37) and (Exhibit PW-189/32-71), three magazines (Exhibit PW-189/1-3) of assault rifles, one of which had 28 live cartridges (Exhibit PW-189/4-31) were found and handed over to the police vide memo Exhibit PW-189/C and Exhibit PW-115/A. The empties of the cartridges fired by the Quick Reaction Team through the self loading rifles were deposited with ammunition store of 7 Rajputana rifles and were handed over to the police later on vide memo Exhibit PW-131/C.
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On the next day, i.e. on 23.12.2000, in the morning at about 8.10 a.m., the BBC news channel flashed the news that Lashkar-e-Toiba had claimed the responsibility for the shooting incident in question which was entered in the daily diary. On the same morning one AK56 assault rifle (Exhibit PW-62/1) lying near Vijay Ghat on the back side of Lal Qila was found abandoned. There were seven cartridges in the magazine. They were taken into police possession vide memo Exhibit PW-62/F. On the same morning in early hours extensive search went on of the back side of the Red Fort. The police found a polythene bag containing some currency notes of different denominations and a piece of paper, a chit (Exhibit PW-183/B) on which a mobile No. 9811278510 was mentioned. According to the prosecution, the intruders had escaped from that very spot by scaling down the rear side boundary wall of Red Fort using the pipe and further a small platform for landing from below the pipe. According to the prosecution, while jumping from the platform, the said polythene bag with cash and the paper slip fell out of the pocket of one of the intruders. The currency notes and the paper slip were seized vide memo Exhibit PW-183/A. It was on the basis of this cell phone number that the investigation agency started tracing the calls and collecting the details from which it transpired that between 7:40 p.m. and 7:42 p.m. on the night of the incident, two calls were made from this mobile number to telephone No. 0194452918 which was the number of one BBC corRespondent in Sri Nagar, Altaf Hussain (PW-39). It was also found that three calls were made from same mobile number to telephone number 0113355751 which number was found to be that of BBC corRespondent in Delhi, Ayanjit Singh (PW-41) between 9:25 p.m. and 9:33 p.m. The police found out that this mobile No. 9811278510 was being used from two instruments whose IMEI number (identification number engraved on the mobile handset by the manufacturer) were obtained from mobile service provider ESSAR. These numbers were 445199440940240 and 449173405451240. The police could also find out that the person who had mobile connection card having No. 9811278510 had another mobile cash card of ESSAR company with No. 9811242154 and from this number large number of calls were found to have been made to telephone No. 2720223 which was found to be the number of telephone installed at flat No. 308A, DDA flats, Ghazipur, Delhi. This flat was registered in the name of one Farzana Farukhi. Similarly, number of calls were found to have been made from telephone No. 2720223 to 9811242154. It was also found that number of calls were made from cell No. 9811242154 to telephone No. 6315904 which was a landline number installed at House No. 18-C, Gaffur Nagar, Okhala where a computer centre in the name of 'Knowledge Plus' was being run. The further investigation revealed that this said computer centre was being run by one Mohd. Arif @ Ashfaq (Appellant herein) who was residing at the flat mentioned as flat No. 308A, DDA Flats, Ghazipur where landline No. 2720223 was installed. The police, therefore, could connect the said flat No. 308A at Ghazipur and the computer Centre i.e. Knowledge Plus at Okhala and could also connect Mohd. Arif @ Ashfaq with these two places. A surveillance was kept on these places for two days. During this period of surveillance, the computer centre had remained closed. On the basis of some secret information the premises at 308A, Ghazipur were raided on the night of 25-26.12.2000 and the Appellant-accused Mohd. Arif @ Ashfaq was apprehended by the police while he was entering the flat. It was found during the investigation that Farzana Farukhi in whose name telephone No. 2720223 was registered was a divorcee sister-in-law of Mohd. Arif @ Ashfaq i.e. her sister was married to Mohd. Arif @ Ashfaq whose name was Rehmana Yusuf Farukhi. Mother of these two sisters, namely, Ms. Qamar Farukhi (DW-1), was also a resident of the same flat.
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On his apprehension, Mohd. Arif @ Ashfaq (Appellant) was cursorily searched by Inspector Ved Prakash (PW-173) during which one pistol (Exhibit PW-148/1) with six live rounds was found with him. They were sealed and taken into police custody. The Appellant on his apprehension accepted his involvement in the incident inside the Lal Qila and gave further information to the policemen about the presence of his associate Abu Shamal @ Faizal as also the ammunitions at their hide out at House No. G-73 Batla House, Murari Road, Okhala, New Delhi.
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He was immediately taken to that house by the raiding team which was headed by Inspector Mahesh Chandra Sharma (PW-229) and truly enough, in pursuance of the information given by him, the associate Abu Shamal was found to be there. The police party did not approach the flat immediately as the house was found to be locked. However, at about 5.15 a.m. in the morning one person had gone inside the house and closed the door from inside. The police then asked him to open the door but instead of opening the door, he started firing from inside at the police party. The police party returned the firing with their fire arms and ultimately the person who was firing from inside died and was identified by Appellant Mohd. Arif @ Ashfaq to be Abu Shamal @ Faisal. Substantial quantity of ammunition and arms was recovered from that flat being one AK-56 rifle (Exhibit PW-229/1), two hand grenades one of which was kept in Bandolier (Exhibit PW-229/5), two magazines (Exhibit PW-229/2-3) one of which had 30 live cartridges. Some material for cleaning arms kept in a pouch (Exhibit PW-229/6) and Khakhi Colour Uniform (Exhibit PW-229/8) were recovered and seized by the police vide seizure Memo (Exhibit PW-229/D & E). A separate case was registered under Sections 186, 353 and 307, IPC as also Sections 4 & 5 of the Explosive Substance Act and Sections 25, 27 of the Arms Act was registered at New Friends Colony in FIR No. 630/2000. That case ended up in preparation of a closure report because the accused had already died in the encounter with the police. After the above encounter, the accused Appellant was brought back to his flat where the search had already been conducted by policemen. During that search one Ration card which was ultimately found to be forged (Exhibit PW-164/A), one driving license in the name of Mohd. Arif @ Ashfaq (Exhibit PW-13/1), one cheque book of HDFC bank in the name of Mohd. Arif @ Ashfaq (Appellant herein), one ATM card, one cheque book of the State Bank of India in the name of Rehmana Yusuf Farukhi, wife of accused Appellant was...
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