STATE v. MOHD. NAUSHAD & ORS.

Judgment

1. These four appeals and one death reference arise out of a common judgment and order of learned Additional Sessions Judge dated 08-04-2010, whereby the Appellants viz. Naushad (A-3), Mirza Nissar Hussain @ Naza (A-5), Mohd. Ali Bhatt @ Killey (A-6), Javed Ahmed Khan (A-9) were convicted. A-3 was convicted under section 120-B, section 411 and section 302/307/436 read with section 120-B IPC. He was also convicted under Section 5 of the Explosives Substances Act. A-5 and A-6 were convicted under section 120-B, section 411 and section 302/307/436 read with section 120-B IPC. A-3, A-5 and A-6 were awarded death as also awarded further sentences under cognate for the lesser offences they were charged with. Javed (A-9) was convicted under section 120-B and section 302/307/436 read with section 120-B IPC and was awarded the sentence of imprisonment for life which was directed to run concurrently with sentences for lower offences and fine. All the appellants claimed to be aggrieved and have appealed to the Court against their convictions and sentences; since three of Death Sent.2/10; Crl.A.948 to 951/10 Page 3 them have been awarded the death sentence, the learned Trial Court has referred the sentence for confirmation in terms of the provisions of Section 368 Cr.P.C. I Brief outline of facts

2. Before an elaborate discussion of the evidence and documents presented before the Court, it would be necessary to recapitulate the salient facts. On 21.05.1996, a bomb blast took place in Central Market, Lajpat Nagar at 6.30 PM. This incident resulted in 13 deaths and 38 injuries, besides extensive loss to properties, both moveable and immoveable. PW-21 was the first to inform the Police Station about the incident; he witnessed the incident and reported to the police on the basis of which the FIR was lodged. Soon thereafter, investigation into the incident started. The same evening there were media reports that Jammu Kashmir Islamic Front (JKIF, in short) had claimed responsibility for the horrific event. The police traced the calls received by TV Channels - Zee News etc. The calls had emanated from two different telephone numbers in the Kashmir Valley. The Jammu Kashmir Police was intimated about these facts; and the police were provided with the two telephone numbers apparently used were i.e. 22315 and 33221; the first was registered in the name of A-1‟s (Farooq Ahmed Khan‟s) father and the second was installed in the house of A-2 (Farida Dar). Those two accused were arrested on 24.05.1996 by the J&K Police. The Delhi Police were intimated about this fact. Consequently, PW-49 Jasbir Malik formally arrested them on 25-5-1996 on behalf of the Delhi Police and brought them from Srinagar. The said two accused were produced before the Metropolitan Magistrate, Patiala House on 26-5-1996 and their Death Sent.2/10; Crl.A.948 to 951/10 Page 4 remand was obtained.

3. The prosecution claimed that the Police obtained a break-through with the arrest of A-9 Javed on 01.06.1996 at Ahmedabad by the Gujrat Police. It was alleged that he made disclosure statement (produced before the Trial Court as Ex. PW-99/B). In the disclosure statement, he revealed the details of the various stages in which the explosives were brought into India and also revealed the names of the master mind behind the bomb blast, which included Bilal Ahmed Beg (A-11), Juber @ Mehrazuddin (A-12), Mohd. Ashraf Bhatt (A-14), Javed Kariwar @ Javed Ahmed Goojri (A-15), Ibrahim Abdul Razak Menan @ Muslaq @ Tiger Menon (A-16) and Daud Hassan Sheikh (A-17). A-11 to A-17 were declared proclaimed offenders; A-13, who was also a proclaimed offender during trial, admittedly died during the proceedings. On the basis of the information disclosed by A-9 Javed, the police claims to have verified certain facts from PW-13Wazid Kasai during the investigation, as well as from Pappi (who deposed as PW-14) during the trial. It was also alleged that in the statements recorded under Section 161 Cr.P.C, these two witnesses partially lent corroboration to Javed‟s disclosure statement vis-a-vis handing over of explosive materials by Javed to other conspirators which were ultimately used in the bombing incident of 21.05.1996. It was alleged that during the course of these statements, A-3‟s name cropped up as one of the key figures instrumental for the bomb blast. It is alleged that several unavailing attempts were made to nab Naushad; the police claims to have kept a watch near his house. Ultimately on 14.06.1996, upon the receipt of a tipoff, the police arrested Naushad (A-3) along with Mirza Iftekar (A-4) from the New Delhi Railway Death Sent.2/10; Crl.A.948 to 951/10 Page 5 Station at 7:40 PM trying to board the Vaishali Express to Gorakhpur. The prosecution further alleged that on the basis of disclosure statements by A-3 Naushad, several vital incriminating materials in the form of explosives (2 slabs of RDX, 1 timer, 1 iron solder , 1 wire cutter, 2 araldite tubes, 1 gas cylinder and 1 detonator) were seized. Similarly recoveries of incriminating material were allegedly made at the behest of A-4. Both these recoveries were made on 15.06.1996.

4. The prosecution further alleged that on the basis of disclosure statements by said two accused, it obtained information regarding the whereabouts of other two accused i.e. Mirza Nissar Hussain, A-5 (hereafter referred to as „Naza‟) and Mohd. Ali Bhatt, A-6 (hereafter referred to as „Killey‟). The police party apparently went to Gorakhpur on 16.06.1996. Killey and Latif Ahmed (A-7 who was ultimately acquitted by the impugned judgment after the trial) were arrested. It was also alleged that A-3 and A-4 had accompanied the police when the said two accused Killey and Latif were arrested on 16.06.1996. Allegedly, the latter two were identified and pointed out by A-3 and A-4. The police, on the basis of disclosure statement by Latif Ahmed (A-7) recovered a torn half of a two rupee note, which was a key to obtain funds for Naushad (A-3), from a hawala transaction from one Mangal Chand in Delhi. The prosecution alleged that on the basis of further information received on 17.06.1996 the police party went to Mussourie and arrested A-5 Naza.

5. It was further alleged that on the basis of disclosure statements recorded by A-6 and A-7, a police party went to Shalimar Bagh, Delhi on

17.06.1996; the place was identified by the accused, from where a torn half Death Sent.2/10; Crl.A.948 to 951/10 Page 6 two rupee note was recovered (at the behest of A-7) from Mangal Chand, who handed over Rupees one lakh in cash to A-4 to be given to A-3 (Naushad). The Seizure Memo in respect of the said money was prepared that day and later produced during the trial. The appellants claimed to have sent another party to Gorakhpur on 18.06.1996 to seize relevant extracts of the guest house records as well as the railway reservations chart dated

27.05.1996 (pertaining to Shaheed Express) to prove that Naushad had travelled from Gorakhpur to Delhi.

6. In the meanwhile, Javed (A-9) and Nikka (A-10) along with two others were detained in Ahmedabad. Javed, A-9 and Nikka, A-10 were transferred to Jaipur where they were needed in connection with another pending case involving trial for the offence punishable under Section 307, IPC. The prosecution case is that there was a bomb blast at Dausa, Rajasthan soon after bomb blast in Lajpat Nagar, Delhi. On 19.07.1996 the concerned Magistrate Bhagwan Das (PW-100) at Jaipur recorded a judicial confession of Javed, A-9 (Ex.PW-100/A) wherein Javed narrated the sequence of events which he was aware of, implicating various accused as well as identifying their roles. Apparently, A-9 and A-10 were kept in custody and eventually formally arrested by the Delhi Police on 26.07.1996.

7. The prosecution went on to investigate the matter further, obtained the opinion of various experts including explosives experts and after collecting all other materials filed the charge sheet against 10 accused who stood trial. All of them claimed they were not guilty. The prosecution relied on the testimonies of 107 witnesses and also several material exhibits which included seizure memo, pointing out memos, disclosure statements, Death Sent.2/10; Crl.A.948 to 951/10 Page 7 confessional statements of A-9 (Ex. 100/A). After the statement on behalf of the accused, under Section 313, Cr PC was recorded, Naushad chose to lead evidence in defence and relied upon the testimonies of the two witnesses - Shri Mukesh, a Section Officer, National Human Rights Commission (NHRC) DW-1 and Shri Arun Kumar Sharma, Public Relation Inspector DW-2.

8. After considering the statements on behalf of the parties and the materials placed before it, the Trial Court convicted the four appellants before this Court and acquitted A-4, A-7, A-8 and A-10 of the charges. A-1 and A-2 were convicted under Sections 5 and 7 of Explosive Act and were sentenced to undergo 7 years imprisonment.

9. Two accused Farooq Ahmed Khan A-1 and Farida Dar A-2 did not appeal against their conviction and sentence. II Brief Summary of the Trial Court findings

10. The Trial Court convicted A-1 on the basis of recovery of articles, pursuant to his disclosure statement Ex. PW-39/B recorded on 04.06.1996 in Delhi. The prosecution witnesses relied upon by the Trial Court in this regard were PW-18 Inspector Pawan Kumar and PW-19 Prem Ballabh Dhayani, BSF Srinagar. They deposed that A-1 took them along with other police and BSF Personnel to his house at Janglat Mandi and pointed out to a safe which was locked. The lock was broken and one AK-56 and two magazines containing 59 rounds were recovered. Additionally, explosives weighing more than 1 kg were recovered from a polythene bag. These were seized under memo Ex. PW 18/A. The Trial Court also found that Death Sent.2/10; Crl.A.948 to 951/10 Page 8 documents were seized and recorded in a memo Ex. PW 18/B. The documents recovered were produced as Ex. PW 19/1 to 19/8. The Trial Court also believed PW-22 SI Arvind Verma who accompanied PW 18 and 19 and searched A-1‟s house which led to seizure to documents Ex. A/1 to A/8. These documents pertained to installation of telephone (which was used to communicate to the news channels in Delhi to claim responsibility for the bomb blast on 21.05.1996) and other related documents to prove the permanent residence of A-1. Likewise, the recoveries made pursuant to disclosure statements of A-2, including explosives, and the records relating to the telephone, were held sufficient to implicate that accused with the incident.

11. As far as Naushad (A-3) was concerned, the Trial Court relied on the testimony of PW-9, PW-39 and PW-101 (all police officials) to prove the circumstances under which he was arrested. More importantly, it was held that the disclosure statement of this accused (Ex. PW-31/B) leading to the recovery of two RDX slabs weighing 1 kilo 50 grams, a detonator with wire, an alarm clock, a gas cylinder, a polythene bag containing iron solder, a screw driver, a plier, a cutter, two araldite tubes an electric tape and a wire, had been proved by the testimonies of PW-31, PW-41 and PW-101. These articles were recovered at the behest of A-3 Naushad from the DDA flat where he lived on 15-6-1996 and were taken into custody through seizure memo Ex. PW-31/A. The prosecution had also relied on the testimony of PW-92; but that witness turned hostile. The Court did not believe the allegation of A-3 that he had, in fact, been detained on 28-5-1996, and had been illegally confined. The said appellant‟s version, sought to be Death Sent.2/10; Crl.A.948 to 951/10 Page 9 corroborated by reliance on the evidence from an official of the National Human Rights Commission about having received a complaint from Naushad‟s father in that regard, was not held proved. The Trial Court held that the purchase of the yellow coloured wire (a circumstance listed as No. 20 against the accused) was held not proved through the testimony of PW-32, who could not identify Naushad. This finding is at para 269 of the impugned judgment. However, in the conclusion recorded, the Trial Court (erroneously, and perhaps by oversight) listed that this circumstance was proved against Naushad (A-3). A very important circumstance held to be incriminating against Naushad was the circumstance of the stolen Maruti car (which belonged to PW-8) having been parked on 19-5-2006 at Lajpat Nagar, near a shop named “Dulhan Dupatta”. The prosecution relied on the testimony of PW-31 and PW-39, the police officials who claimed that the said accused had been taken to the said premises, on 18-6-1996 after arrest, and were identified by the shop keeper, PW-61. The said individual, PW-61 was declared hostile; in his cross examination, he could identify the accused Naushad. This witness PW-61 initially denied having signed anything, but in cross examination by prosecution, admitted to the memo Ex. PW-31/R. This was held to be sufficient identification of the accused Naushad to amount to proof that he had visited the area two days before the incident, on 19th May, 1996, and had parked a Maruti car, and had later accompanied the police party on 18-6-1996. The recovery of a car duplicate key (Ex. P-7, seized through memo Ex. PW-31/F) was sought to be proved through the testimonies of police witnesses PW-31, PW-39 and PW-101. The Trial Court held that this was not an incriminating circumstance, since the key was recovered from an open place, accessible easily, and was not Death Sent.2/10; Crl.A.948 to 951/10 Page 10 corroborated by an independent witness. The Trial Court held that the testimonies of PW-31, PW-36 and PW-39 (police witnesses) to say that the accused Naushad had led them (along with A-5) on 19-6-1996 to the shop where gas cylinders had been purchased. The shop keeper, PW-54 did not support the prosecution but admitted, in cross examination with leave of court (by the prosecution) that he had signed the “pointing out memo” PW-31/M, which recorded the visit of the police party, with the said two accused. This circumstance was held to have been proved, against Naushad. Similarly, the admission to having signed on a pointing out memo, by PW-64, from whose shop a key was obtained by A-3 and A-5, was held to amount to proof that the accused had gone to his shop on 19-6-1996, during the course of investigation. Here again, apart from the testimony of PW-64 - who could not identify the accused – the prosecution relied on the testimonies of police witnesses PW-31 and PW-39. In an identical fashion, the Trial Court held that the circumstance of A-3 and A-5 having pointed out the shop (of PW-58) on 19-6-1996, from where the soldering iron had been purchased, and memo Ex. PW-31/K recorded, was proved (again PW-58, the shop keeper, could not identify the accused as the individuals who had visited the shop after the bomb blast, during investigation). The Court relied on the testimonies of PW-31 and PW-39.

12. As regards Naza (A-5) the Trial Court held that his involvement and culpability was proved by the prosecution through various circumstances. These were the confessional statement by A-9 (Ex. PW-100/A) which specifically named A-5, and how he accompanied that accused from Kathmandu; delivery of the bag containing bombs and explosives in the Death Sent.2/10; Crl.A.948 to 951/10 Page 11 house of PW-13. The Court further held that in the disclosure statement A-5 had mentioned having travelled to Delhi on 10-5-1996, in Royal Nepal Airways, which was held to have been proved by the testimony of PW-67, who produced the photocopy of the passenger list (Mark 67/A) - the list contained A-5‟s name. It was held that since this circumstance was not known to the police, the disclosure statement Ex. PW-23/B to that extent was admissible, as it related to a fact discovered pursuant to accused‟s statement, under Section 27 Evidence Act. The Trial Court held that the circumstance regarding pointing out of the shop from where a wall clock was purchased, on 17-5-1996, was proved through a part of the disclosure statement (of A-5) Ex. PW-23/B, and the memo Ex. PW-31/H, which was signed by PW-48 and PW-50. The testimony of PW-101 was relied on to say that the accused led the police party to the shops on 19th June, 1996 – a circumstance unknown to the investigation team at that time, and therefore, admissible and relevant in law. The testimony of PW-61, even though he could not identify A-5 with certainty, was held sufficient to incriminate A-5 as it implicated him, on the basis of his disclosure statement Ex. PW-23/B, to the extent it admitted that the Maruti car was parked on 19-5-1996, two days before the blast, in front of the said witnesses‟ (i.e. PW-61‟s) shop. The memo pointing out the shop of PW-60 from where a nine volt battery was purchased (Ex. PW-31/L) and the deposition of PW-31 as well as PW-39 were held sufficient to prove that A-5 took the police to the shop of PW-60, pursuant to the disclosure statement PW-23/B and that PW-60 admitted to the memo, even though he could not identify the accused. As with A-3, in the case of A-5 to, the Trial Court found the pointing out of the shop (of PW-58) on 19-6-1996, (from where the soldering iron had been purchased, Death Sent.2/10; Crl.A.948 to 951/10 Page 12 and where memo Ex. PW-31/K was recorded), stood proved (again PW-58, the shop keeper, could not identify the accused as the individuals who had visited the shop after the bomb blast, during investigation). The Court relied on the testimonies of PW-31 and PW-39. It was further held that the testimony of PW-38 proved that two individuals – which included A-5 had visited his shop in May, 1996 with a nine volt battery, asking him to fix the terminals by soldering for which he charged Rs. 5/-. The prosecution had alleged that this fact was revealed by A-5 in his disclosure statement Ex. PW-23/B; the visit by the accused, with the police party, and his pointing out the shop, was recorded in memo Ex PW-31/N.

13. The impugned judgment held that A-6 Killey was criminally responsible being a member of the conspiracy that masterminded the bomb blast on 21.05.1996. The first circumstance relied upon in this regard was the confessional statement of A-9 (Javed Khan) i.e. Ex.PW-100/A which named Killey. Ex.PW-100/A mentioned that on 10.05.1996 Javed senior had sent A-5 to Delhi and that he (A-9), Javed senior, A-6 and A-13 started for Delhi from Kathmandu on 11.05.1996. Upon reaching the border on

12.5.1996, he (A-9) stayed there while the others moved ahead. After delivering ammunitions at the residence of PW-13 and on his return he found that Javed senior, A-6 and A-13 had reached Kathmandu. On

19.5.1996, A-6 and A-13 went back to Delhi, when he enquired from Javed senior why they had gone back, he was informed that work could not be completed due to some defect. The second circumstance relied upon was the pointing out of the shop, from where a “Jayco” make wall clock was purchased, pursuant to the disclosure statement (of A-6) i.e. Ex.PW-16/I. Death Sent.2/10; Crl.A.948 to 951/10 Page 13 Here the evidence relied upon was identical i.e. the testimonies of PWs-48 and 50 and the memo Ex.PW-31/H. The testimonies of PW-31 and PW-39 too were relied upon. As in the case of A-5, the disclosure statement of A-6, Ex.PW-16/I was relied upon to say that the shop of PW-60, from where 9 volt battery was purchased, had been pointed out during the investigation by the accused A-6, on 19.6.1996. The testimony of PW-60 as well as memo Ex.PW-31/L was relied upon. The other circumstance held to have been established to connect A-6 with the crime is the soldering of two terminals on the 9 volt battery from the shop of PW-38, Vijay Electronics. Here that part of the disclosure statement, Ex.PW-16/G, which led the police team to the shop of PW-38 and the latter pointing out the accused in the course of the investigation (though the witness was unsure about the identity during the trial), were relied upon. The memo Ex.PW-31/N was also relied upon by the Trial Court. The prosecution had relied on and the Trial Court agreed with its submission in this regard that the testimony of PW-61 in front of whose shop (Dulhan Dupatta) the Maruti 800 car was parked on

19.5.1996, two days before the bomb blast, was proved by pointing out memo Ex.PW-31/R prepared on 19.6.1996. It was held that even though PW-61 could not identify A-6, the fact remained that the memo recorded the name of A-6 and was admitted by PW-61. The Court further held that this circumstance was unknown to the police and was discovered pursuant to the disclosure statement by the accused and, therefore, relevant under Section-27 of the Evidence Act. In the same series, the Trial Court further held that the response of A-8 (the individual whose Maruti 800 car was stolen on 18.5.1996) on 17.6.96 by A-6 and A-3 and the drawing up of a memo had been proved. Death Sent.2/10; Crl.A.948 to 951/10 Page 14

14. The conviction of A-9 Javed was premised largely upon the confessional statement Ex.PW-100/A. It was found by the Trial Court that the confession was made voluntarily in FIR No.39/1996 PS Gandhi Nagar, Jaipur in which it was alleged that Javed was guilty of committing offence under Section-307/427/120B, IPC. The Trial Court held that Javed‟s entering Delhi and staying in Satyam Hotel on 14.5.1996 had been established. The Trial Court relied upon the testimony of PW-99, PW-100 and PW-101. It was held that A-9‟s graphic details how on 13.5.1996 he left the Nepal border for Delhi and reached the next morning and went to the residence of PW-13. He could not hand over the bag to A-5 and instead handed it over to some woman saying that it contained clothes. He returned to Kathmandu on 15.5.1996 and reached there on 17.5.1996. According to his statement, co-accused Javed sr., A-6 and A-13 had also reached Kathmandu before he went there. Arrest of A-9 on 24.5.1996 was held to be proved. Similarly, the disclosure statement made by him pursuant to his arrest on 1.6.1996 after the Gujarat police informed the Delhi Police in this regard was held to be proved. The Trial Court held that before the disclosure statement of A-9, the Delhi Police was unaware regarding the whereabouts of PW-13 Wajid Kasai. This vital clue led to the breakthrough and further investigation, which finally led to successful completion of investigation.

15. The Trial Court held that the sequence of events, which included the confessional statement of A-9 - which was admissible in law - the disclosure statements made by the accused, the recoveries effected and corroborative material gathered during the investigation clearly established Death Sent.2/10; Crl.A.948 to 951/10 Page 15 the criminal conspiracy on their part along with the co-accused who had absconded and did not stand trial. The object of this conspiracy was not only the bomb blast incident, which occurred on 21.5.1996 evening at Lajpat Nagar but also to engineer several other similar incidents to threaten the integrity of the country and challenge its sovereignty.

16. The Trial Court found that A-3, A-5, A-6 and A-9 were guilty for the offences punishable under Section 120B read with Sections 302, 307 and 436, IPC. Naushad (A-3) was also held guilty and convicted for the offence punishable under Section 5 of the Explosive Substance Act. A-5 and A-6 were also held guilty for the offence punishable under Section 411, IPC. A-1 and A-2 were held guilty and convicted for the offences punishable under Section 5 of the Explosive Substance Act. A-1 was further convicted for the offence punishable under Section 25 of the Arms Act. III Appellants’ contentions (a) Arguments on behalf of accused Mohd. Naushad (A-3)

17. Shri K.K. Manan, counsel for Mohd. Naushad (A-3) submitted that the prosecution‟s case against Mohd. Naushad is suspect right from its inception. Relying on Ex.PW-99/B-1 Javed‟s statement recorded under Section 161, Cr.P.C. during the investigation, it was highlighted that the said accused A-9 did not even mentioned Naushad in that document. Learned counsel submitted that this gap is fatal to the prosecution story because in the absence of any information, the role and involvement of Naushad was never established. Learned counsel urged that even if Javed‟s statement about his having gone to Wajid (PW-13‟s) house on reaching Delhi were to Death Sent.2/10; Crl.A.948 to 951/10 Page 16 be believed, the disclosure statement of PW-13 Wajid is completely bereft of any particulars as to the identity and the place and the address of Naushad. Even if this fact were to be ignored, the prosecution‟s version that it was unsuccessful in nabbing Naushad for more than ten days, i.e. after coming to know about Javed‟s statement on 3.6.1996, is unbelievable. In this connection, it was argued that the Trial Court has completely ignored and discarded the testimony of DW-1 and DW-2 who had deposed that Naushad was abducted or illegally detained by the police on 28.5.1996. The testimonies of these two independent witnesses showed that Naushad‟s father had sent a complaint to the National Human Rights Commission (NHRC) immediately upon his son being detained without any charges. These two officials who deposed as defence witnesses established that the complaint was indeed sent and received contemporaneously in the end of May/early June. This gave a lie to the entire prosecution story about Naushad having gone into hiding and absconding from the police.

18. Learned counsel for the Naushad further relied upon Mark-A/2, the statement of PW-13 recorded by the Delhi Police. The said witness had clearly stated that Javed Khan knew Naushad, yet Javed himself had not named either in the disclosure or confessional statement of A-9. This completely belied the prosecution theory about having come to know about Naushad and his role, through PW-13. Once that witness resiled from the prosecution version and did not support its theory about having been approached by Javed, or having told the police regarding involvement of Naushad, there was no evidence linking Naushad with the bomb incident.

19. Arguing further, it was submitted that the entire prosecution story how Death Sent.2/10; Crl.A.948 to 951/10 Page 17 A-3 was nabbed and arrested on 14.06.1996 is unbelievable and shrouded in suspicion. Learned counsel submitted that if in fact PW-13 had been interrogated by the police as claimed by them and further to it, it was found (as per statements of police witnesses PW-101 and 105) that A-3‟s house at Turkman Gate was locked for 5-6 days, it was unbelievable that no attempt would have been made to search the premises, especially in view of the suspicion against A-3. It was submitted that the police theory about A-3 having fled and hidden himself in Gorakhpur in this context cannot be believed. It was argued that the entire story of Naushad‟s arrest from Platform no. 4 of the New Delhi railway station when he was allegedly boarding the train for Gorakhpur on 14.6.1996 was not proved. Learned counsel highlighted that even though PW-16, PW-39 and PW-101 claimed to have witnessed the incident and also further alleged that P.P. Singh (PW-105) was present, the latter did not corroborate this at all. Learned counsel further argued that the arrest of the A-3 is suspect for the reason that PW-16 Inspector Rajender Gautam – who corroborated the allegations regarding arrest from railway platform in line with the testimony of PW-39 and 101, also mentioned that some disclosure statement was recorded the same day on the platform; according to the witness the disclosure statement was Ex.PW-16/D. However, no such disclosure statement was exhibited by the witness. It was submitted that PW-39 Inspector Hare Ram Malik did not support the testimony of PW-16 as regards the recording of the disclosure statement Ex.PW-16/D. It was further argued that very important circumstance which negates the prosecution‟s story about the arrest of A-3 and A-4 is the fact that though PW-41 and PW-43 were mentioned as members of the police party at the time of arrest in the railway Death Sent.2/10; Crl.A.948 to 951/10 Page 18 station particularly by PW-39 and 101, these two witnesses were silent and did not corroborate the prosecution story. It was argued that therefore even though the prosecution mentioned that PW-16, PW-39, PW-41, PW-43, PW-101 and PW-105, only three witnesses i.e. PW-16, PW-39 and PW-101 supported that version. On the other hand, PW-105 and the other witnesses i.e. PW-41 and PW-43 were silent about their presence and having witnessed the arrest.

20. The Appellant‟s counsel also attacked the entire prosecution allegations about the arrest of Naushad and A-4 on 14.6.1996 by arguing that if in fact the police were in hot pursuit of these two accused, no reason is attributed why independent witnesses were not associated at the time of the arrests. All witnesses who claimed to have been present and to have witnessed the nabbing of A-3 and A-4, admitted that the arrest took place on a crowded railway platform. No attempt was made to associate any independent witness. On the other hand, the two defence witnesses DW-1 and DW-2 had proved that A-3‟s father had addressed a complaint to the NHRC alleging police highhandedness with Naushad‟s wife on 28.5.96 and his illegal arrest and detention from that day onwards. The prosecution could not dislodge their testimonies; they were known to be the independent witnesses. In these circumstances, the Trial Court fell into error in believing the testimonies of police witnesses and unreasonably discarding that of the defence witnesses. Learned counsel submitted that the settled law that equal weightage has to be given to the testimonies of prosecution and defence witnesses and if the defence witnesses are credible and support a reasonable point of view, that is to be preferred to the prosecution version. Death Sent.2/10; Crl.A.948 to 951/10 Page 19 Learned counsel submitted that in this context the lack of corroboration by independent witnesses in regard to other circumstances such as pointing out of shop from where the car number plates were made (para 255 of the impugned judgment); pointing out of shop from where the Araldite tubes were purchased (para-259-261of the impugned judgment), was held to be fatal to the prosecution case, resulting in the Trial Court discarding such circumstance. This application of contradictory and discrepant standards was a serious error, particularly when the prosecution admitted that independent witnesses were available and could have been approached or joined at the time of arrest of the A-3 and A-4 on 14.6.1996.

21. It was argued that the single most important evidence alleged against the appellant Mohd. Naushad (A-3) was the recovery of explosive and other articles. Learned counsel submitted that the recovery of explosives was sought to be proved through the testimony of three police witnesses PW-31, PW-41 and PW-101. The police also importantly relied upon the testimony of PW-92, a neighbour and an independent witness. This witness very crucially did not support the prosecution story at all as regard the recoveries made from the premises of Mohd. Naushad (A-3) i.e. DDA Flats, Turkman Gate. This single discrepancy or contradiction in the evidence was sufficient for the Court to discard the allegations regarding recovery of these articles. Learned counsel submitted that the Trial Court, however, erroneously held that even though PW-92 denied having witnessed the recovery, the fact that he mentioned that the police visited Naushad‟s premises and that he was made to sign the statement under Section 161 Cr.P.C., were factors that could be taken into consideration and that the Death Sent.2/10; Crl.A.948 to 951/10 Page 20 testimony of the police witnesses proved the recovery of explosives. It was submitted that if the prosecution story about police awareness regarding Naushad‟s involvement pursuant to the disclosure statement made by Javed on 2.6.1996 and the subsequent information gathered by Wajid, were to be believed, it was highly improbable that no measures would have been taken to search the premises of Naushad. The Trial Court, urged the counsel, overlooked this vital circumstance, i.e. absence of any explanation why the police did not deem it appropriate to search and seize incriminating articles from the premises of Naushad which was known to him before his alleged arrest on 14.6.1996. Elaborating on this aspect, learned counsel submitted that if in fact the police had strong reasons to suspect A-3‟s role in the bomb blast, it would have been natural and reasonable for them to raid and seize every incriminating material from that suspect‟s known premises. Instead the police theory that the premises were kept under watch for about ten days, believing it unprotected and potentially containing dangerous explosive substances, was an extremely improbable story. The prosecution quoted an explanation for this; none was forthcoming during the trial. The only inference therefore was that the explosive and other incriminating articles were not there and had been planted in the premises.

22. Learned counsel highlighted that the recovery pursuant to the alleged disclosure by Naushad on 15.6.1996 is also suspect because none of the witnesses i.e. neither PW-31, PW-41 nor PW-101 mentioned that the premises which had been locked when the police went earlier (leading them to keep a watch over it) was broken open. In fact PW-31 could not recollect if the door was open or closed. None of the witnesses mentioned that the Death Sent.2/10; Crl.A.948 to 951/10 Page 21 appellant A-3 facilitated opening of the lock or that the lock was forced open. In these circumstances, it was reasonable to infer that the premises were open and under the control of the police – a circumstance that ought to have weighed with the Trial Court in rejecting the alleged recoveries altogether.

23. It was submitted that the prosecution allegations that A-3 had stayed in Gupta Hotel, Gorakhpur on 28.5.1996 was a circumstance that could not be held proved having regard to the state of evidence. In this context, learned counsel argued that PW-40 had deposed that they obtained a photocopy of the railway reservation chart on 27.5.96 of Shaheed Express Indian Railways Ex.PW-40/A which was seized by memo Ex.PW-40/D. This chart showed Naushad‟s name in the waiting list RAC-12. However, the person from whom he got the chart photocopy recorded (an official of the Indian Railways i.e Mr. Chakaravorty) was not examined in Court. Similarly, the seizure of the photocopy of the visitor‟s book Ex.PW-40/C seized under memo Ex.PW-40/D showing details about Mohd. Naushad and the original of that book Ex.PW-40/1 from Gupta Hotel and another original visitor‟s book from Hotel Budha where A-5 andA-6 had allegedly stayed, was not proved in the eyes of law. It was argued that neither PW-82 nor PW-83 identified Naushad; PW-83 merely stated that according to the records one Naushad had stayed in the hotel. It was submitted that the Trial Court‟s findings and observations from paras 209 to 216 that A-3 had stayed in Gupta Hotel on 27.5.1996 and that the photocopy of chart of railways Ex.PW-40/A stood proved, are entirely based on mis-appreciation of evidence and the legal position. Learned counsel Death Sent.2/10; Crl.A.948 to 951/10 Page 22 emphasized that it was the prosecution‟s duty to prove each circumstance i.e. Naushad travelling in the train at the relevant time, his stay at Gorakhpur and his identification by the witnesses. Neither the railway reservation chart was produced in original – only an alleged photocopy was relied upon, nor was the official who gave the photocopy examined in the court. Furthermore, the two witnesses who could have testified that Naushad stayed in Gorakhpur at the relevant time in the end of May, 1996, did not identify him in Court nor even the prosecution attempted A-3‟s identification by them. In these circumstances, there was no material for the Court to conclude that A-3 was not in Delhi but at Gorakhpur on

28.5.1996. Learned counsel argued in this context that the Trial Court entirely relied upon the absence of cross examination on behalf of of A-3, ignoring entirely the lack of positive evidence by the prosecution to prove those facts. It was submitted that the Court‟s findings and observations are entirely at variance with its conclusion with respect to handwriting analysis. In this respect, learned counsel relied upon the CFSL report Ex.PW-94/A which stated that the authorship the specimen signatures and writings could not be fixed and established to be that of the person who wrote on the visitor book of Gupta Hotel on 27.5.1996. The Trial Court‟s findings in this regard are as follows: - “404. Similarly, the prosecution failed to prove if handwriting on the visitor‟s book at sl. No.112 of Gupta Hotel and Tourist Lodge, Gorakhpur, 27.5.1996 was in the handwriting of A-3”

24. It was further submitted that even though the testimonies of PW-40 and PW-60 showed that the former had visited the Gorakhpur twice and the latter went there once, the witnesses were unable to recall the relevant D.D. Death Sent.2/10; Crl.A.948 to 951/10 Page 23 entries regarding their movements. Learned counsel submitted that 17 circumstances were put against A-3 Mohd. Naushad and the Trial Court rejected 9 of them but proceeded to hold that 8 circumstances had been proved, which not only were conclusive but of such nature as to implicate him as having been responsible for the bomb blast and leaded to impose the extreme sentence of death. Learned counsel submitted that the 9 circumstances which were held not to have been proved were the recovery of keys at the instance of A-5 and A-6. The prosecution had relied upon the testimonies of PW-31, PW-39, PW-64 and PW-101. PW-64 was an independent witness and a key maker who did not support the allegations. The Court held that no independent witness was associated with the alleged recovery which was made from a open place accessible to the public at large. The Court also held that the alleged recovery was made more than a month after the incident. It, therefore, rejected Ex.PW-13/J, the pointing out memo, the key Ex.P-7and the Seizure memo Ex.PW-31/F. In a similar manner the evidence of the same prosecution witnesses regarding pointing out of the shop by A-3 and A-6 where the duplicate number plates of the car was prepared was rejected by the Trial Court in para 256 of its judgment. Referring to para 225 of the impugned judgment, learned counsel submitted that the prosecution witnesses had contradicted themselves and that there was no documentary proof in that regard. The TIP of the case property had not been conducted and even independent witnesses from the adjoining shops had not been joined at the time of preparation of memo Ex.PW-31. Likewise the recovery of the car front and rear number plats at the instance of A-3, A-5 & A-6 were rejected by the Trial Court in paras-288-289 of the judgment. The Court rejected the testimonies of the official witnesses Death Sent.2/10; Crl.A.948 to 951/10 Page 24 PW-31, PW-39 and PW-101 and held that no independent witnesses had been joined; that the alleged recoveries were from the open place, accessible to all, that no TIP proceedings were conducted, associating PW-8, owner of the car and that the prosecution did not prove that the number plates Ex.P-4 and P-5 were originals. It was also argued that the Court rejected the fourth circumstance namely pointing out of the place in House No.134, Zakir Nagar allegedly by A-2, A-5 & A-6 in para-278 of its judgment. The memo Ex.PW-33/S was not believed on the ground of absence of any independent witness; that the place was open and accessible to the public; that it was owned by Mirza Maqbool Hussain who was not joined in the investigation, etc.

25. It was argued next by learned counsel for the appellant that the alleged arrest of A-7 and recoveries of a torn 2 rupee currency note at the pointing out of the A-3 was rejected by the Trial Court in para-195 of its judgment. The Court noticed that no independent witness was joined at Gorakhpur at the time of A-7‟s arrest and recovery of the torn 2 rupee note. Very crucially the Court also noticed that PW-16, the policeman was declared hostile and that the prosecution suggested that he was won over by the accused. Furthermore, the court noticed that alleged currency note did not have any distinct identification and that the prosecution story in that regard was unbelievable. Recovery of stepeny from A-8‟s house was similarly rejected and the pointing out of the house of A-8 as well as pointing out by A-3 of various places was rejected by the Trial Court.

26. It was submitted that as against this, the Court applied an entirely different yardstick in believing the prosecution version regarding pointing Death Sent.2/10; Crl.A.948 to 951/10 Page 25 out by PW-61 of the appellant. It was submitted that concededly the prosecution case itself was that the appellant was arrested on 14.6.1996. If in fact, he was seen by PW-61, owner of the “Dulhan Dupatta” Shop on

19.6.1996 during investigation, that by itself, proved nothing. The prosecution did not conduct any TIP nor associate PW-61 in such proceedings, which alone would have lent assurance to any identification of the accused at the relevant time. Here, learned counsel argued that PW-61 did not identify A-3 Naushad in his examination-in-chief. The prosecutor sought permission of the Court to put leading questions to the witness, who was examined in Court on 7.10.2004, i.e., about 8½ years after the incident. It was submitted that contrary to the ready acceptance of the alleged identification of A-3 alone during the trial by the Court, the impugned judgment rejected another circumstance i.e. the pointing out of the shop from where Araldite tubes were purchased. The reasoning in that regard is at Paras 260-261 of the impugned judgment where it was held that the absence of TIP and improbability of a shopkeeper remembering the faces of those who visit his premises, 8-9 years after the incident, was fatal. Learned counsel submitted that there was no difference in the character of the two circumstances of pointing out because in the alleged pointing out Ex.PW-31/R, the witness denied all the suggestions as to what had been stated by the accused in his presence on 19.6.1996, regarding their involvement and knowledge. The witness also failed to identify Naza and Killey. Yet the Trial Court chose to accept the said witnesses‟ testimony which was riddled with suspicion, entirely on the basis of his testimony in cross examination as regards identification of Naushad (A-3) as the person who had parked the car on 19.5.1996 and as the individual who made the Death Sent.2/10; Crl.A.948 to 951/10 Page 26 disclosure and pointed out the place which was recorded in the memo Ex.PW-31/R. The counsel again emphasized the fact that even if the statement Ex.PW-31/R was recorded, it was inadmissible in evidence since it amounted to an extra judicial confession.

27. Learned counsel argued that as regards all the other incriminating circumstances held to have been proved, the Court entirely relied upon the testimony of official witnesses even though independent witnesses did not support the prosecution story. It was submitted that the approach of the Trial Court in relying on the pointing out memo Ex.PW-31/M was at variance with the testimony of PW-54 and the testimony of PW-64 who denied the circumstance about the recovery of the key as well as the pointing out memo of PW-31A, despite PW-58 not being able to identify the accused were assailed as contrary to law. Learned counsel submitted that wherever independent witnesses were sought to be joined in the proceedings or produced in the court but had resiled and contradicted the prosecution story, the Trial Court refused to heed their testimonies and went on unreasonably to accept the version of the police witnesses. This was done almost entirely on the basis that such independent witnesses had admitted to signing the “pointing out” memo which, therefore, were held to be admissible as leading to proof of knowledge of a place or a fact. It was urged that this approach of the Court is without any legal support because such “pointing out” memos do not fall within the exception carved out under Section-27 of the Evidence Act. Learned counsel relied on the Privy Council decision reported as Pulukuri Kotayya v. Emperor (AIR 1947 PC 67), and argued that a 'fact discovered' within the meaning of Section 27 cannot be equated to an object Death Sent.2/10; Crl.A.948 to 951/10 Page 27 produced; and that a fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. The court‟s observation that “Information about to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered..” was, in that context, relied on. Reliance was also placed on the decision reported as Inspector of Police, Tamil Nadu v Balaprasanna 2008 (11) SCC 645 and Jaffar Hussain Dastagir v State of Maharastra 1969 (2) SCC 872. (b) Arguments of Mirza Nisar Hussain @ Naza (A-5)

28. Learned counsel for Naza submitted that as against the seventeen circumstances alleged against that appellant, the prosecution‟s case was disbelieved in regard to nine of them. These nine were the circumstance relating to arrest of the appellant, the pointing out of the shop where an araldite tube was purchased, pointing out of the shop from where a wire was purchased, pointing out of the place at Zakir Nagar, where the stolen Maruti car was allegedly parked, recovery of the car key, recovery of the front and rear number plates of the said stolen car, pointing out of the place of incident, telephone calls allegedly made by A-5 to A-7, and an alleged recovery from a house. All these nine circumstances – which included the most important circumstance relating to arrest of A-5 were disbelieved. However, argued counsel, completely ignoring that these circumstances intrinsic the prosecution case, which was entirely circumstantial, the impugned judgment recorded A-5‟s conviction on the basis of other evidence. The most prominent among these was the “pointing Death Sent.2/10; Crl.A.948 to 951/10 Page 28 out” of the shop Dulhan dupatta, allegedly on 19-6-1996, by the accused A-5 during course of investigation. The other circumstances held to have been proved were the pointing out of the shop, from where a nine volt battery was purchased, pointing out of another shop from where a battery was soldered; pointing out of a shop from where a clock was purchased, pointing out of the shop from where the gas cylinder was purchased, and pointing out of the shop or place where duplicate car key was made, and from where a soldering iron was purchased.

29. Elaborating the submissions, learned counsel urged that the pointing out circumstance, pertaining to the Dulhan dupatta shop was based on the prosecution theory that the accused, including A-5 had taken the police party to that shop on 19-6-1996. The police version was that they did not know previous to the pointing out on that day, that the accused had made an abortive attempt at exploding a bomb in Lajpat Nagar on 19-5-1996. That day, when the stolen Maruti car was being parked in front of the shop Dulhan Dupatta, the shopkeeper, PW-61 objected. This fact was known to the police, when the accused led them to the shop, an event recorded in the pointing out memo Ex. PW-31/R, witnessed by the said shopkeeper. Learned counsel submitted that the Trial Court fell into grave error in not giving any weightage to the fact that even after the witness was permitted to be cross examined, he could not identify the appellant A-5 with any certainty. Despite this fatal lacuna, the impugned judgment believed the prosecution version that the accused had visited Lajpat Nagar on 19th May, 1996, and attempted to explode a bomb, unsuccessfully. It was emphasized that this circumstance was held to be extremely important, to establish A-5‟s Death Sent.2/10; Crl.A.948 to 951/10 Page 29 involvement in the conspiracy, and despite the failure of PW-61 to identify that accused, the Court held the circumstance proved, almost entirely on the basis of police witnesses‟ testimony. It was submitted – like in the case of A-3 - that such “pointing out” could not be a conduct incriminating any accused, and therefore not relevant under Section 8 Evidence Act, or admissible under Section 27. Learned counsel stressed on the fact that the shop was in central Lajpat Nagar, and its shopkeepers were accessible. Therefore, it could not be a place unknown to the public at large.

30. The Counsel submitted that arrest of Naza (A-5) from Minerva Hotel, Mussorie was not believed as the prosecution was unable to prove the date, time and place of arrest beyond reasonable doubt. The Counsel submitted that the prosecution failed to explain why the staff members and owner of Minerva Hotel, Mussorie were not joined in the investigation and made witnesses‟ to the personal search and arrest. The arrest was allegedly made from Minerva Hotel yet no staff/manager of the hotel was joined as a witness to the arrest memo. Furthermore, records i.e. hotel register of Minerva hotel was also not seized. The prosecution did not bring anything on record regarding the number of days accused Naza (A-5) stayed in Minerva hotel; or prove the purpose of his visit to Minerva hotel. There was no documentary evidence to prove that the accused had in fact stayed at Minerva hotel, Mussorie. The witnesses to Naza‟s (A-5‟s) arrest are PW-23 Insp. Puran Singh and PW-43 Insp. Virender Singh, both of whom gave different versions regarding their departure from Delhi to Mussorie. PW-23 Insp. Puran Singh in his examination-in-chief stated that he along with his left Delhi for Mussorie on 17.06.1996 whereas in his Death Sent.2/10; Crl.A.948 to 951/10 Page 30 cross-examination he stated that they reached Mussorie in the night intervening 16/17.06.1996; this, submitted the counsel, is not possible. PW-43 Insp. Virender Singh stated that they left Delhi for Mussorie on

16.06.1996 at about noon and reached Mussorie in the wee hours of the morning. Therefore both the witnesses‟ have given a different departure date for Mussorie. Furthermore, PW-43 Insp. Virender Singh in his deposition mentioned that HC Yamin Khan was also with the police team in Mussorie; however, HC Yamin Khan was not made a prosecution witness. The Counsel further urged that no documentary evidence was brought on record to show the presence of PW-23 and PW-43 in Mussorie on 17.06.1996. The DD Entry allegedly made at the PS in Mussorie regarding the apprehension of the accused was not produced on the record. Accused Naza (A-5) was not produced before any court in Mussorie. No incriminating article was recovered from the said accused at the time of his personal search. In this background, urged counsel, the finding of the Trial Court that the prosecution was unable to prove the date, time and place of arrest of A-5, and yet go on to hold that: “The fact however, remains that A-5 was arrested in this case and was brought to Delhi. A-5 has claimed that he was arrested from Nepal on 08.06.1996. However, no evidence on that aspect has also come to accept the plea of A-5 that he was arrested from Nepal on 08.06.1996 and was kept in illegal detention till 17.06.1996.” is erroneous and unsustainable.

31. It was urged that having noticed the grave discrepancies in the prosecution story about A-5‟s arrest, it was inconceivable that he was present, along with the police party and A-3 when they allegedly went to Death Sent.2/10; Crl.A.948 to 951/10 Page 31 Lajpat Nagar, and pointed out Dulhan Dupatta, on 17-6-1996. Learned counsel submitted that the disclosure statement of A-5 (Ex. PW-16/J) was allegedly recorded on 30-6-1996, and sought to be proved by PW-16, but in reply to leading questions put by the prosecution. These circumstances put together with the fact that unlike other “pointing out” memos which recorded that the accused had been taken with their faces muffled to the concerned place, the relevant memo did not record that; neither did PW-61 depose to that aspect. As a result, this “pointing out” memo was not an incriminating circumstance. Lastly, argued learned counsel, since the disclosure statement of A-3 recorded on 15-6-1996, mentioned about the shop and who all allegedly visited it on 19-5-1996, the subsequent pointing out did not lead to discovery of any fact, nor could be said to be corroborative of it, at least as far as A-5 was concerned, to be admissible under Section 27 of the Evidence Act. In these circumstances, the only permissible method to lend assurance about veracity of the prosecution version would have been to conduct a TIP of the accused, and join PW-61 in it, which was concededly not done in the case.

32. It was argued that the Trial Court fell into error in believing various pointing out memos (Ex. PW-31/H, PW-31/K, PW-31/L and PW-31/N) even though the concerned independent shop keepers and witnesses (PW-48, PW-50, PW-58 and PW-38) could not identify A-5 as the individual who had visited their premises during the investigation, in June, 1996, and pointed out their shops or premises, from where, various articles, deemed incriminatory, were purchased, or services, such as soldering of wires, etc, were got for a price. It was submitted that the lack of prosecution‟s effort to Death Sent.2/10; Crl.A.948 to 951/10 Page 32 get identification through reliable TIP proceedings, either of the accused, by the witnesses, or of the articles, was adversely commented upon by the Trial Court. However, it nevertheless proceeded to hold that such pointing out memos incriminated A-5 as one of the conspirators responsible for the crime. Learned counsel relied on the observations of the Trial Court to the following effect: “…the investigation conducted by the police in this case is highly defective. At no stage the police opted to put any of the accused persons for TIP from the prosecution witnesses. The prosecution has miserably failed to justify as to why no TIP of the case property recovered in this case or that f the accused persons arrested in this case conducted from the prosecution witnesses. The case of the prosecution is that the accused team a various places during persons investigation and pointing out various places from where they had arranged articles for preparation of cylinder bomb planted in the Maruti car in question. However, at no stage police bothered to get any of the accused persons arrested in this case to be identified prosecution witnesses…” judicial TIP proceedings the police

33. Learned counsel argued that the starting point for the Trial Court in this case, to hold that A-5 was guilty, was the confessional statement of A-9, Javed (Ex. PW-100/A). Counsel urged that this was an erroneous approach, and that such confessional statement is invariably treated as a weak circumstance or evidence and at best could be considered corroborative, if other incriminating circumstances are in fact proved. In this regard, learned counsel relied on the decision reported as Hari Charan Kurmi v State of Bihar 1964 (6) SCR 623. It was argued that the Trial Court adopted an approach of blind adherence to the said alleged confessional statement, without first satisfying itself if all the corroborating materials and facts had Death Sent.2/10; Crl.A.948 to 951/10 Page 33 been proved.

34. Counsel urged that courts in India have to follow, without exception, the rule of proof beyond reasonable doubt, being the constant burden which the prosecution labours under, in all criminal cases, regardless of whether they are based on direct or circumstantial evidence. Counsel relied on the rule applicable, enunciated in Hanumant Govind Nargundkar v State of MP AIR 1952 SC 343 and Sharad Birdichand Sarda v State of Maharastra 1984 (4) SCC 116, that each circumstance alleged must be conclusively proved, that all links in the chain of circumstances must equally conclusively be established and that every circumstance so proved should unerringly and categorically prove that the accused was responsible for the crime, and that all hypothesis of his innocence has been ruled out by the prosecution, during the trial. Counsel relied on the ruling in State v Mahendra Singh Dahiya 2011 (3) SCC 109 that regardless of the gravity or shocking nature of the crime, the court should be careful in analyzing all evidence, and should adopt a balanced approach, eschewing emotion. (c) Arguments on behalf of Mohd Ali Bhat @ Killey (A-6)

35. Learned counsel for A-6 Killey adopted the submissions made on behalf of the appellants Naushad and Naza, stating that the circumstances alleged against Killey were almost entirely similar and identical to those accused. It was urged that so far as the arrest of Killey was concerned, the Trial Court had disbelieved the prosecution story. The most important incriminating circumstance put against Killey was the deposition of PW-61 and the alleged “pointing out” that the accused had visited his shop on 18-6-1996, during investigation, with a police party. It was submitted that Death Sent.2/10; Crl.A.948 to 951/10 Page 34 the witness could not identify A-6 Killey, even after prompting by the prosecution, in the course of leading questions put to him, with permission of the court. Such being the case, the Trial Court fell into a grave error in holding that the statement of that witness, allegedly made during the investigation, under Section 161 could be taken as proved. In doing so, the Court entirely based its conclusions on the testimonies of police witnesses and discarded the deposition of the only independent prosecution witness.

36. It was argued that similarly, the Trial Court fell into error, in holding that the pointing out of the shop from where a nine volt battery had been allegedly purchased had been proved. In this regard, learned counsel relied on the testimony of PW-60; he failed to corroborate the prosecution version about the said pointing out. Counsel submitted that even during cross examination (by the prosecution, with leave of court) the witness refused to identify A-6, stating: “I however, told the police that one of those two accused persons, namely Mirza Nisar Hussain @ Nasa who is present in court might have purchased from me. It is wrong to suggest that I categorically identified accused Mohd. Ali Bhat @ Mohd. Killey as the only person who came at my shop with accused Mirza Hussain @ Naza for purchasing battery on 21-5-1996 when police removed the muffler from his face..” It was submitted that the Trial Court fell into grave error in rejecting the testimony of an independent prosecution witness, and wholly relying on the police witness, as regards the fact that a battery had allegedly been purchased from his shop. The police were admittedly not witnesses (to the actual event), and exclusive reliance on an inadmissible statement of a witness, who refused to corroborate the prosecution, was unsustainable in Death Sent.2/10; Crl.A.948 to 951/10 Page 35 law.

37. It was argued that the circumstance of pointing out of the shop from where the Jayco wall clock was bought was similarly not proved and the Trial Court erred in rejecting the evidence of independent witnesses. Counsel highlighted that in the entire testimony of PW-48, the witness denied that the three accused, including Killey had visited his shop with the police during investigation identifying it (the shop) as the place from where the clock was purchased. The witness was cross examined by the prosecution, and he nevertheless denied that any of the three accused had gone to his shop with the police. In a similar manner, PW-50 could not, despite suggestion, identify all or any of the accused as individuals who had gone to buy the wall clock. Therefore, the Court could not legitimately have concluded that this circumstance was proved. Learned counsel adopted the submissions made on behalf of the other accused/appellants regarding the infirmity in the findings of the Trial Court with respect to pointing out of the shop from where the soldering iron had been purchased, and its reliance upon the deposition of PW-58, who claimed that he could identify those persons, but, in fact, did not identify any of the accused in court with certainty, but did so with doubt.

38. It was further argued that the Trial Court fell into error in relying on the confessional statement of Javed (Ex. PW-100/A) without any corroboration of its contents. In this regard, it was submitted that such confessional statements cannot, by their own weight, and in absence of any other supporting or corroborative material result in a conviction.

39. Counsel for Killey argued that the Trial Court‟s approach was Death Sent.2/10; Crl.A.948 to 951/10 Page 36 contradictory and opposed to settled principles regarding appreciation of evidence in criminal cases. It was urged that many circumstances were held not proved, and many pointing out memos rejected, on the ground that independent witnesses were not associated, or TIP of the accused or articles not conducted. Yet, the same standard was selectively used, and entirely ignored while accepting pointing out memos which were not supported by independent witnesses; similarly, recovery of articles that were not subjected to TIP and were by all accounts common, or commonly available, were held to have been proved. This inconsistent approach, submitted counsel, pointed to the Trial Court‟s anxiety to somehow convict A-6. Neither did any witness identify him, positively, or hesitatingly; all independent witness produced and expected to implicate him, did not identify him. The Trial Court should have held the prosecution had not proved circumstances alleged against him, beyond reasonable doubt, and acquitted him, on an application of established principles of criminal law. However, submitted counsel, not only was Killey convicted as charged, but shockingly imposed the extreme penalty of death sentence. The impugned judgment has therefore resulted in manifest miscarriage of justice. (d) Arguments on behalf of Javed Khan (A-9)

40. Ms. Kamini Jaiswal, Learned counsel argued that A-9 was convicted mainly on the ground of his alleged judicial confession Ex.PW-100/A, made on 19.7.1996. It was argued that there was scanty material to corroborate the prosecution allegations about Javed Khan‟s role in the crime apart from the said confession. It was contended that the said appellant was arrested – as per the prosecution – on 1.6.1996 by the Gujarat Police; he made his Death Sent.2/10; Crl.A.948 to 951/10 Page 37 disclosure statement the same day (Ex.PW-99/B). The alleged disclosure statement was made on 1.6.1996. Between that date i.e.1.6.1996 and

19.7.1996, no judicial confession was recorded; very significantly, A-9 continued to remain in police custody, first with the Gujarat Police and later the Rajasthan Police. The Delhi Police did not make any effort to arrest Javed despite the said disclosure statement made on 1.6.1996. His formal arrest was made by Delhi Police on 26.7.1996 after his judicial confession. This rendered his confession questionable. Learned counsel underlined that for a judicial confession to be admissible, the Court has to be satisfied that it was made voluntarily. It was argued in this context that the queries put to A-9, by the concerned Magistrate PW-100 were formal and ritualistic and he continued to be in police custody right up to the day prior to his making the confession. Learned counsel relied upon the text of Section-164 Cr.P.C. and contended that confession by an individual accused of one offence, in relation to another offence which is not under investigation by the authorities and over which the Magistrate cannot exercise the jurisdiction, is not within the contemplation of the provision and, therefore, inadmissible. It was argued in other words that the so called confession by A-9 who was not even charged with the offence pertaining to the incident at Delhi nor named as an accused, in the course of an entirely alien proceedings, concerning unrelated charges in an entirely different incident, was, therefore, inadmissible. Learned counsel relied upon the Privy Council decision in Pakala Narayana Swamy v. Emperor, AIR 1939 PC 47. Learned counsel also relied upon the decision reported as Sunder Lal Kanhaiya Lal Bhatija v. State of Maharashtra, 2010 (4) SCC 414. Death Sent.2/10; Crl.A.948 to 951/10 Page 38

41. It was also argued that merely because PW-100 deposed during the proceedings about his satisfaction that A-9‟s alleged confession was made voluntarily, the prosecution was not absolved from proving beyond reasonable doubt that such confession was indeed trustworthy and that it was not made under duress. It was submitted that the confession was suspect because the prosecution made no attempt to address a very important issue which is that the most important facts were revealed to the Gujarat Police allegedly on 1.6.1996. Further, A-9 continued to be in police custody throughout and was arrested by the Delhi Police despite his alleged disclosure – which was highly incriminating – only on 27.7.1996. This delay in the arrest and the nine weeks delay in making the confession had not been explained at all. These important discrepancies had to be kept in mind that while considering that PW-100 did not record as to who had identified A-9 on 19.7.1996 when the confession was made before him, and he did not even record the order sheet or separate proceedings about which policeman had accompanied the accused A-9 on the two occasions when he went to Court 17.7.1996 and 19.7.1996. Learned counsel relied upon the decision reported as Inspector of Police v. Bala Prasanna, 2008 (10) SCC 645 and Rammi v. State of Madhya Pradesh, 1999 (8) SCC 649. It was emphasized that the unexplained delay in the making of the confession coupled with the unexplained delay in arrest of the accused, seen together with the omissions and gaps in the testimony of PW-100, put reasonable question marks over the voluntariness of the confession by A-9, as to render it inadmissible.

42. It was next submitted that even if for arguments sake it was assumed Death Sent.2/10; Crl.A.948 to 951/10 Page 39 that the prosecution had proved that the confession Ex.PW-100/A was in fact admissible, there were other doubts highlighted during the trial which ought to have impelled the Court to hold that he was not proved to be guilty beyond reasonable doubt. In this regard it was argued that the testimonies of PW-98 and PW-99 as regards the date of arrest of A-9 were at variance. PW-99‟s testimony suggested that contrary to the prosecution‟s case, the Gujarat Police had information regarding whereabouts of A-9 and A-10 on

24.5.1996 and that they were arrested on 25.5.1996. This gave a lie to the prosecution version that these two accused were arrested on 1.6.1996, which was plainly overlooked by the Trial Court.

43. Contending that the confessional statement by itself is considered weak to sustain a conviction, learned counsel argued that there should be external corroboration of its contents in the form of recoveries and other objective facts. Counsel urged that in the present case, such external factors alleged against A-9 were not proved at all and that the facts so proved were so inconsequential that conviction could not rest on them. Elaborating the submission, it was urged that the only proof with regard to facts mentioned in the confession, adduced in the form of evidence by the prosecution was that Javed Khan had stayed in Delhi for a day on 14.5.1996 at Satyam Hotel. Counsel urged that the prosecution had relied upon the testimonies of PW-3, PW-46 and PW-101. It was submitted that the testimony of PW-46 Rajan Arora, proprietor of the Satyam Hotel, did not inspire any confidence. Although he claimed that A-9 stayed in his hotel for a day on 14.5.1996, yet no documentary evidence in that regard in the form of hotel register or extracts from it or counterfoil of cash memo/receipt were produced. The Death Sent.2/10; Crl.A.948 to 951/10 Page 40 witness did not even remember if any such document had been seized by the police. Counsel highlighted that witness had deposed in Court on 20.5.2004 i.e. eight years after the incident; applying the reasoning of the Court with regard to “pointing out” memo and the improbability of a witness identifying the accused after such length of time, it was argued that the deposition of PW-46 could be hardly trustworthy enough to amount to proof of the circumstance alleged. It was submitted that even otherwise the mere fact that Javed had stayed for a day in Paharganj, New Delhi a week before the incident (assuming this fact to have been proved) cannot be considered incriminating at all.

44. Learned counsel submitted that A-9 was accused of delivering ammunitions used by A-3and A-5 at the residence of PW-13. However, that prosecution witness turned hostile and denied any delivery of weapons alleged. He even denied that A-9 had visited him. Similarly, PW-14 also denied that A-9 had visited their house. In these circumstances, there was no proof that A-9 had left any arms or ammunitions or for that matter any material with the said witnesses, which facilitated the commission of the crime or any other crime. The testimonies of police witnesses as regard what was stated by PW-13 and PW-14 could not be looked into since it amounted to hearsay evidence and the said witnesses were not on trial. Since the witnesses denied what was attributed to them in the form of statements under Section-161 Cr.P.C., the circumstance that A-9 visited them and delivered arms or ammunitions could not be said to have been proved. It was, therefore, urged that the Trial Court‟s observations with regard to Delhi Police being able to trace PW-13 as a result of the disclosure statement Death Sent.2/10; Crl.A.948 to 951/10 Page 41 recorded by A-9 on 1.6.1996 was of no avail at all.

45. It was argued further that the Trial Court fell into error in holding that no material existed to infer that the Delhi Police had even met A-9 prior to recording of the confessional statement. The evidence produced before the Court showed that Delhi Police had interrogated A-9 on 3.6.96 soon after getting the message from Gujarat Police. Counsel highlighted the fact that A-9 was acquitted by the competent Court in Gujarat of all charges since the prosecution there failed to establish that he was the conspirator along with others for commission of the offence punishable under Section 120B IPC. Furthermore, no incriminating material was found to connect him with the offence alleged by the Gujarat Police. The charges against the accused, argued the counsel, included offences punishable under Section 120B, 121, 121 (A), 122 and 123 IPC. All these were noticed by Trial Court in para 425 of the impugned judgment. Similarly, the Trial Court was also aware of the fact that A-9 was arrested under FIR No.39/1996 and produced before the Jaipur Court on account of his involvement in some offence for which he had in fact been discharged under Section-169 Cr.P.C.

46. It was argued that taken together all the circumstances alleged against A-9 were not proved; the confessional statement attributed to him (Ex.PW-100/A) was inadmissible because it was plainly not voluntarily and the other external circumstances allegedly corroborated of the contents of the said judicial confession had not been proved. In any event, some circumstances even if proved could not result in conviction. As a result, argued the learned counsel, the Trial Court misdirected itself in law in placing such heavy reliance on the confessional statement and treating it as a Death Sent.2/10; Crl.A.948 to 951/10 Page 42 gospel truth contrary to the settled legal position. IV Submissions of the prosecution

47. Mr. Pawan Sharma, learned Standing counsel for the State, appearing for the prosecution, argued that the bomb blast occurred on 21-5-1996, at Pushpa Market, Lajpat Nagar at 6.30 PM in car No.DL-2CF-5854, which was stolen on 18.05.96. In the blast high explosives were used. 13 persons died and 38 received injuries. The police was informed and FIR was recorded on the basis of the statement of PW-21 Subhash. The FIR was proved at Ex.PW1/A. It was urged that the case is based on circumstantial evidence and the prosecution was able to piece together overwhelming materials to prove that the four appellants before the court in the present case, i.e A-3, A-5, A-6 and A-9, were guilty, beyond reasonable doubt. Counsel submitted that even though all accused could not be arrested and brought to face trial, the prosecution successfully proved all the elements of conspiracy, and the incriminating circumstances, alleged against each Appellant. It was highlighted that the Court took care in keeping in mind the settled rule in circumstantial evidence based cases regarding conclusive proof of each circumstance, proof of all links, and elimination of every hypothesis consistent with the accused‟s innocence. Counsel submitted that the appellants had not been successful in establishing that the impugned judgment contained any substantial or compelling error, requiring appellate consideration.

48. Counsel urged that on the day of the blast itself, i.e 21-5-1996, between 8 and 9 PM phone calls were received from Anant Nag, Jammu & Kashmir, at various media offices in New Delhi, and JKLF took Death Sent.2/10; Crl.A.948 to 951/10 Page 43 responsibility for the incident. It was submitted that this was proved by PW-68 Vinod Kapari of Zee TV and PW-74 of PTI who deposed that phone calls received were made from telephone No.22135. The prosecution showed that the said number was installed in the name Mohd. Farukh‟s (A-1‟s) father and the connection had STD facility. It was found that A-1 and A-2 were in constant touch with each other through telephone numbers 22135 and 33221. The second telephone was installed in the house of A-2 and about 31 calls were made by A-1 and A-2. In this connection, submitted the counsel, PW-97, one Makroo of BSNL, J&K proved that telephone number 22135 had STD facility. Counsel urged that PW-105 ACP P.P. Singh proved the said calls by proving the billing record of the two phones. Other witnesses, i.e. PW-106 Subhash Chander and PW-107 Sanjeev Kumar (both of BSNL, J&K) too proved the record through fax billing of the said numbers. On 24.5.96, A-1 and A-2 were arrested by the J& K police in FIR No.162/94, P.S. Sher Garhi. A fax was sent by J& K Police along with wireless message (Ex.PW-78/A, Ex.PW-78/B and Ex.PW-78/C) to the Delhi Police. PW-78 Farukh Khan, SSP, J &K deposed before the Trial Court about those facts.

49. Counsel submitted that on 25.5.96, pursuant to information from J&K Police A-1 and A-2 were arrested by Inspector Jabir Malik of Special Staff, Delhi Police who was examined in the trial as PW-49. This was corroborated by PW-25. A-1 and A-2 were brought to Delhi. Investigation of the case was transferred to PW-101 Inspector Paras Nath who was posted at Operational Cell, Delhi Police. Next, on 1.6.96 four persons namely Javed Khan (A-9), Asadullah @ Abdul Gani (A-10), Rasid Ahmed and Makbool Bhatt were Death Sent.2/10; Crl.A.948 to 951/10 Page 44 apprehended by the Ahmedabad Police in case FIR No.12/96 under Sections 120B/307 IPC near Roopali Cinema, Ahmedabad. The said four were nabbed by the Ahmedabad Police on the basis of earlier information received by them that some suspicious individuals stayed at Ankul Hotel. The police party raided that hotel but despite the entries made in the hotel register (in the name of Mohd. Rasid), no one was found. Thereafter the continuous search was made by the police and ultimately on 1.6.96, four persons were apprehended and arrested. At the time of arrest a panchnama was prepared, and another panchnama of the contents of a digital diary recovered from the accused was prepared. PW-98 and PW-99 deposed about these facts before the Trial Court. It was submitted that the appellant‟s argument that they were detained on 24.5.96, was put to the Gujarat police, PW-98 and PW-99, but denied by them. It was submitted that the accused‟s argument about false arrest of Javed is without substance, because there was in fact no contradiction between the testimonies of the witnesses PW-98 and PW-99. Furthermore, the prosecution was not bound to prove what the accused did between 24th May, 1996 and the date of their arrest, i.e. 1-6-1996, since that was not in issue. On the other hand, submitted counsel, the appellants did not lead any evidence to falsify that they were arrested on 1-6-1996.

50. It was submitted that Javed A-9, made a disclosure statement that on

14.5.96 he had gone to Delhi and delivered highly explosive materials at the house of Wazid Kasai (PW-13) at Turkman Gate, Delhi. He had stayed in Hotel Satyam, on 14-5-1996 – a fact disclosed in the disclosure statement Ex.PW18/F. PW-46 Rajan Arora of Satyam Hotel correctly identified Death Sent.2/10; Crl.A.948 to 951/10 Page 45 Javed as the person who stayed in his hotel on 14.5.96. This fact was also revealed in the judicial confession made by Javed later, on 19-7-1996.

51. On 2.6.96 after getting information from the Ahmedabad Police, Delhi police went to the premises of Wazid Kasai, and recorded his and his sister Pappi‟s statement under Section 161, Cr.P.C. Both named Naushad (A-3) and other accused in their statement by revealing that he (A-3) used to meet other Kashmiri boys. They further stated that Javed handed over a bag in their house which was delivered by them to other two accused. Wajid was examined as PW-13 during trial; he did not support the prosecution case. Ms. Pappi was also examined as PW-14 and she too did not support the prosecution case. Their testimonies were later corroborated by the judicial confession of Javed (Ex. PW-100/A) made before the Learned ACJM, Jaipur. Soon after the information was received from PW-13 and PW-14, the police started searching for Naushad but A-3 was untraceable till 14.6.96. The police also reached at his house but no search was made there because of the possibility of A-3 absconding like other accused, who were later declared PO and are still absconders. Around this time, on 3-6-1996, PW-34 Harender Singh went to J&K and searched the house of Javed Kariwar to ascertain whether he was available. However, he was not there. One passport was seized from his house. From the house of Javed Kariwar and Mohd Ashraf in J&K, some documents and photographs were seized. The seizures were proved as Ex.PW-34/A, Ex.PW-34/B, Ex.PW-34/C and Ex.PW-34/A1 and Ex.PW-34/C1 to C4. It was submitted that on 4.6.96, PW-91 Inspector Ram Chander went to Ahmedabad and interrogated Javed and Mohd. Gani @ Asadullah who were in the custody of Ahmedabad Death Sent.2/10; Crl.A.948 to 951/10 Page 46 Police, but their interrogation could not be completed because accused Javed was sent to Jaipur. PW-91 Ram Chander was sent to Ahmedabad after getting information from local state Police (Ex.PW-91/A and Ex.PW-91/B). It was argued that the testimony of this witness was not challenged by the defence. The same day, on 4.6.96, police recorded the disclosure statements of A1 and A2 Ex.PW-39/A and Ex.PW-39/B. This was deposed to by PW-39. In these statements A-1 and A-2 stated that they could help recover explosives from their houses. PW-18 Inspector Pawan Kumar and PW-19 P.B. Dhiyani of BSF, J &K went to the houses of A-1 and A-2, from where RDX was seized; the seizure memo was Ex.PW18/C. The recovery from the house of A-1 was Ex.PW-15/A. Other documents seized from the house of A-1 were by memo Ex.PW-18/B. The latter recovery was made on 7.6.96 in the presence of a senior officer of BSF, J&K i.e. PW-19 P.B. Dhiyani. He fully supported the prosecution case. It was submitted that this was supported even by the defence, which stated that the recovery and raid were conducted under supervision of M.S. Sharma, Jt Director.

52. Mr. Sharma argued that on 14.6.96, based on secret information, a police party consisting of PW-16 Rajinder Gautam, PW-39 Inspector Hari Ram Malik, Insp. Paras Nath (PW-101) and P.P. Singh (PW-105) went to Platform No.4 New Delhi Railway Station, from where Naushad (A-3) and Mirza Iftikhar Hussain @ Saba (A-4) were nabbed. From Naushad a railway ticket for two passengers was seized by the police through memo Ex.PW-101/4. The State Counsel submitted that the doubts raised about the arrest of A-3 and A-4 especially that no member of the public was joined by Death Sent.2/10; Crl.A.948 to 951/10 Page 47 the police prior to their arrest is baseless. Reliance was placed on the judgments reported as Tahir v. State 1996 (3) SCC 338; Aher Raja Khima v State of Saurastra AIR 1956 SC 217; State of Kerala v M.M. Mathew 1978 (4) SCC 65; Anter Singh v State of Rajasthan 2004 (10) SCC 657 to contend that the testimony of police witnesses cannot be discarded and that there is no principle that they have to be supported by public witness.

53. Counsel also submitted that the alternative theory about the real detention (of A-3) having taken place on 28-5-1996, by placing reliance on the testimonies of two defence witnesses, cannot be accepted. It was argued, in this context, that A-3‟s father, who is alleged to have complained to NHRC, did not step into the witness box, to say that he had actually sent the complaint; he did not depose that his son was illegally detained since 28-5-1996. On the other hand, there was sufficient corroborative material to reject the defence theory, by way of the testimonies of PW-82 and PW-83, independent witnesses (apart from the deposition of police witnesses) that Naushad had checked into a guest house, on 28th May, 1996, after leaving Delhi on 18.6.1996 PW-40 SI Baljeet Singh went to Gorakhpur and collected the Railway chart from the concerned official of Railway. The chart was seized as Ex.PW40/A. The name of Naushad (A-3) was mentioned in it; the chart, a computer printout of the original, was duly proved by PW-40 SI Baljeet. PW-40 also collected the records of Gupta Hotel, where Naushad had stayed on 27.5.96 and the memo was proved as Ex.PW40/C. The documents collected from Gupta Hotel were sent to the handwriting expert along with the specimen handwriting of accused Naushad. PW-94 Deepa Verma proved the handwriting report. The report corroborates that Death Sent.2/10; Crl.A.948 to 951/10 Page 48 the specimen handwriting of A-3 matched with the questioned handwriting. It was urged that the Trial Court wrongly excluded this part of evidence on the ground that specimen handwriting was not taken by the police before the learned Magistrate, which is a legally untenable view. Further, argued the learned counsel for the State, the deposition of PW-92 (despite his turning hostile) showed that on 16th June, 1996, the police had gone to the DDA flats where A-3 lived, and made the recoveries. It was submitted that these findings by the Trial Court were sound, and could not be faulted. Counsel submitted, on the strength of the judgments reported as Joseph v State of