CRIMINAL APPELLATE JURISDICTION v. MUZAFFAR AHAMED RATHER @ ABU RAFA

Judgment

1. On 3rd April, 2007 at 13:05 hours on the basis of specific intelligence that a group of Pakistan trained Laskar-e-Toiba militants are likely to enter into India via Benapole-Petrapole Checkpost area, a party under the leadership of Company Commander Amit Yadav (P.W. 31) along with BSF officials laid ambush around Petrapole area. They observed four persons were moving suspiciously and confronted them. The said persons tried to escape and upon hot pursuit were captured. On being interrogated they revealed their names and identities.

2. On physical search the following articles were recovered. i) Md Younus – a) Photo copy of identity card of Election commission of India containing picture of Md. Younus but prepared in the name of Md. Kadir R/0 Begusaria (Bihar) b) A purse containing 100 US Dollar bearing No.-C L 15057578 B ii) Md. Abdullah – a) Fake I card of Chandra Sekhar Azad University of Agriculture and Technology, Kanpur having his photograph affixed by the name Ahmed Ali bearing No. 06 AGA 382 b) A code containing name of some person belonging to Kashmir and the key to the code. c) A purse containing Rs.1,000 (Indian currency) and 100 U.S Dollars iii) Muzaffar Ahamed Rather – a) Two fake I Cards of Chandra Sekhar Azad University of Agriculture & Technology Kanpur. Both having photo of Muzafar Ahmed but with two different names and one having address as Buland Sahar Road, Gaziabad and the other as Chakura, Pulwama, J&K 7 b) 100 US dollars of following denomination. 50 US Dollar bearing No. EF 34260883 A 10 US Dollar bearing No. GK 19319944 A 10 US Dollar bearing No. DF 28972754 B 10 US Dollar bearing No. DC 77634025 A 10 US Dollar bearing No. BB 49616969 B 10 US Dollar bearing No. DA 08159775 A iv) Sk. Abdul Nayeem – a) Driving licence No. WB-012006438800 with the name and address of Sk Samir at 40, Madan Mohan Barman Street, Kolkata, 700007. b) A purse containing 1200 Rs. Indian currency and 250 US Dollars of following denomination. 500 Rs. Note bearing No. 0 HA 086317 500 Rs. Note bearing No. 8 CK 358159 100 Rs. Note bearing No. 4 LQ 616207 100 Rs. Note bearing No. 4 LQ 616206 100 US Dollar bearing No. FL 60054211 B 100 US Dollar bearing No. DB 97892537 A 10 US Dollar bearing No. GL 07311336 A 10 US Dollar bearing No. GG 29986181 A 10 US Dollar bearing No. GK 19319946 A 10 US Dollar bearing No. GK 19319951 A 10 US Dollar bearing No. GK 19319945 A c) One NOKIA Mobile without SIM. Seizure memos were prepared with regard to the aforesaid recoveries.

3. On interrogation, arrested persons admitted they were members of Lashkar-e-Toiba (for short ‘LeT’) a militant outfit and had illegally entered the country.

4. Amit Yadav (P.W. 31) lodged written complaint at Bongaon police station resulting in registration of Bongaon P.S. case No.179/07 dated

04.04.07 under sections 121/121A/122/126/419/420/468/469/470/ 471/120B of IPC and under section 14 of Foreigners Act. Seized articles were handed over to Officer-in-charge Bongaon Police Station, Sanjit 8 Chakraborty (P.W. 12) and kept in the Malkhana under Officer-in-charge of Malkhana, Ajoy Kumar Pandey (P.W. 29).

5. P.W. 34 took over investigation of the case. He took custody of the appellants and re-seized the articles from Bongaon Police Station. He interrogated the appellants. Pursuant to interrogation of Sk. Abdul Nayeem on 06.04.2007, he searched his tenanted premises at 19, Madan Mohan Barman Street, Kolkata, 700007 and recovered following articles:- i) One ration card in the name of Md. Manjur (P.W. 20); ii) One ration card in the name of Md. Mehrab (P.W. 25), issued by rationing officer, Barabazar; iii) One electricity bill of CESC Ltd. in the name of Md. Manjur; iv) One xerox copy of Election Commission of India identity card in the name of Md. Manjur; v) One letter of Ministry of External Affairs, Regional Passport office in the name of Md. Mehrab; vi) One driving licence in the name of Md. Fahim; vii) One Election Commission of India Identity card in the name of Md. Kadir; viii) One membership card of Friend’s United Club; ix) One visiting card in the name of Md. Rahamat Ali (Fruit Merchant); x) One electricity bill of CESC Ltd. for the month of January, 2007 in the name of Md. Manjur; xi) One rent slip in the name of Md. Manjur for the month of September, 2006; xii) One letter of Md. Mehrab dated 02.03.2007 in the name of Manager, Punjab National Bank; xiii) One letter of Electoral Registration Officer; xiv) One driving licence (Xerox copy) in the name of Sk. Samir; xv) One xerox copy of driving licence of Md. Mehrab; xvi) One xerox copy of driving licence of Md. Fahim; xvii) Two maps of West Bengal and the North Eastern States with 50 Anti-India leaflets in Urdu and English; xviii) One Cardboard box containing light brown sticky materials. 9 He forwarded Md. Younus, Md. Abdullah, Muzaffar Ahamed Rather for recording confessions before Judicial Magistrates (P.Ws. 35 and 36). The said appellants made confessions before the Magistrates. He sent the sticky brown substance for FSL examination. He made prayer for obtaining sanction from proper authority. He collected the confessional statement. He submitted initial charge-sheet.

6. Subsequently, Parthapratim Roy (P.W. 39) (2nd investigating officer) obtained FSL report. He also obtained sanction order and submitted supplementary charge-sheet under section 5(b) of the Explosive Substances Act against Sk. Abdul Nayeem.

Proceedings before the trial Court:-

7. The case was committed to the trial Court on 19.09.2007. On

16.05.2008, charges under sections 419, 420, 468, 469, 471, 121, 121A, 122, 124A, 120B of the IPC were framed against all the appellants. Charge under section 14 of the Foreigners Act was framed against Md. Younus and Md. Abdullah. During trial, on or about April, 2008 Md. Younus, Md. Abdullah and Muzaffar Ahamed Rather filed retraction petitions before the Court. Recording of prosecution evidence began. After examination of 31 prosecution witnesses, on 24.08.2014 Sk. Abdul Nayeem absconded. Warrant, proclamation and attachment were issued against him but he could not be apprehended. On 10.06.2015 the case against Sk. Abdul Nayeem was filed and the trial proceeded against other appellants. In conclusion of trial, trial Judge by judgment and order dated

16.01.2017 convicted the appellants, namely, Muzaffar Ahamed Rather @ 10 Abu Rafa, Md. Abdullah @ Asgar Ali @ Ahamed Ali @ Ali and Md. Younus @ Billal for commission of offence punishable under sections 121, 121A, 122 and 120B of IPC. In addition thereto, Md. Abdullah and Md. Younus were convicted under section 14 of the Foreigners Act. By order dated

21.01.2017 all the said appellants were sentenced to death and directed to pay a fine of Rs. 50,000/- each.

8. Subsequently, Sk. Abdul Nayeem was re-arrested and produced before the trial Court. Trial against him was revived. On his prayer, certified copies of depositions and exhibited documents were handed over to him. Charge was re-framed adding section 5(b) of the Explosive Substances Act. On the consent of the parties, evidence of prosecution witnesses P.W. 32 to P.W. 39 recorded after his abscondence was adopted against him and he was given the opportunity to cross-examine the said witnesses. In conclusion of trial, by judgment and order dated 11.12.2018 appellant Sk. Abdul Nayeem @ Samir @ Nayya @ Abu Ali was convicted for commissions of offence punishable under sections 419, 420, 468, 471, 121, 121A, 122, 120B IPC and under section 5(b) of Explosive Substances Act. By order dated 15.12.2018 the said appellant was sentenced to death and directed to pay a fine of Rs. 50,000/-. Appeals and references before this Court:-

9. Death Reference No. 2 of 2017 was made for confirmation of the sentence of death awarded to Muzaffar Ahamed Rather @ Abu Rafa, Md. Abdullah @ Asgar Ali @ Ahamed Ali @ Ali and Md. Younus @ Billal. Criminal Appeal No. 105 of 2017, Criminal Appeal No. 198 of 2017 and 11 Criminal Appeal No. 264 of 2017 were filed by Muzaffar Ahamed Rather @ Abu Rafa, Md. Abdullah @ Asgar Ali @ Ahamed Ali @ Ali and Md. Younus @ Billal respectively against their conviction and sentence, as aforesaid. Death Reference No. 1 of 2019 has been made for confirmation of death sentence of Sk. Abdul Nayeem @ Samir @ Nayya @ Abu Ali. The said appellant has assailed his conviction and sentence in Criminal Appeal (DB) 92 of 2022.

10. As the aforesaid death references and criminal appeals arise from the same prosecution case and are based on similar evidence on record, this Court proceeded to hear the references and appeals analogously. They are being disposed of together by this common judgment and order. Prosecution evidence on record:-

11. Prosecution examined 39 witnesses. Prosecution evidence may be analysed as follows:- a) Apprehension of appellants at Petrapole Border:- Official witnesses:- Witness Name and No. Deposition of Witness PW 31: Amit Yadav (Commander at BSF) i) On 03.04.2007 he received secret information that some trained militants Pak through India entering Petropole Border. ii) He along with other officers laid ambush at the border. iii) They saw four people moving suspiciously. iv) They asked their identities but the suspects tried to run away. They were caught and the following documents were seized from Md. Abdullah:-

1. Fake ID Card of Chandra 12 Shekhar Azad, Agricultural University, Kanpur

2. A code containing name of some person belonging to Kashmir and the key to the code

3. A purse containing two INR notes of 500/- and 100 USD Materials seized from Muzaffar Ahamed Rather are:

1. Two fake ID Cards of the same University, both having Muzaffar pictures

2. 100 USD Materials recovered from Sk. Abdul Nayeem are:

1. One driving licence

2. A mobile phone without SIM

3. 250 USD and 1200 INR Materials recovered from Md. Younus are:

1. A purse containing 100 USD

2. Photo copy of identity Election commission India containing picture of Md. Younus but prepared in the name of Md. Kadir vi) Seizure lists were prepared (Exhibits 1, 2, 3 and 4) vii) He identified the appellants in Court. viii) He stated Md. Abdullah and Md. Younus are Pakistani nationals. 13 ix) He lodged written complaint on 4th April, 2007 at Bongaon police station. x) He proved the complaint. xi) Seized materials were handed over to duty officer, Bongaon police station. i) He was a member of the team under the leadership of Amit Yadav (P.W. 31). ii) The team laid ambush on different sides of Petrapole border. iii) They chased and apprehended four persons. PW 1: Manoj Kumar, (Inspector, BSF) iv) Upon interrogation apprehended persons disclosed identities and made statements. v) Documents and articles were list was Seizure seized. prepared by P.W. 31 and he signed on seizure list. appellants and was confused between Md. Abdullah and Muzaffar Ahmed Rather. vi) Could identify PW 2: Ashok Chowdhury, (Head Constable, Haridaspur) i) They were members of the team under P.W. 31. ii) They corroborated the evidence of P.Ws. 1 and 31. iii) They proved their signatures on the seizure list. iv) All the witnesses identified the appellants. PW 3:Yashwin Kumar,(Head Constable) PW 4:BhagwanSingh, (Head Constable) PW 5: R. Ramkrishnan, (Constable) PW 6: Bineswar Kumar, (Constable) PW 7: Sanwar Hossain, (Constable) 14 Local witnesses:- Witness Name and No. Deposition of Witness PW 8: Sunil Mondal @ Sunu, (Grocery Shopowner) (Declared Hostile) PW 9: Deepa Mondal, (Resident at Petropole) (Declared Hostile) PW 10: Beauty Mondal, (Resident at Petropole village) PW 11: Niranjan Mondal, (Resident at Petropole village) i) He has a grocery shop at the crossing of Petrapole. ii) In chief, he stated incident occurred on 4.3.2007 but during cross-examination he admitted he told the police incident occurred on 3.4.2007. iii) He admitted BSF jawans had arrested four accused persons and interrogated them. iv) On enquiry he came to know two were from Bangladesh and two were from Pakistan. v) They belonged to LeT. i) Resident of Petrapole – initially, states unable to recall incident. ii) Subsequently, states she was preparing food – heard hue and cry. iii) Came out of the house and saw four persons arrested by BSF. iv) Identified the appellants. One of them was from Kashmir and other from Maharashtra. i) On hearing the pandemonium, she went there where she saw 4 persons were arrested by BSF ii) Heard Bangladesh to India. iii) Heard they belong to Jangi Sangathan. iv) Heard the names of Md. Abdullah and Md. Younus. v) That two of them belonged to India and two of them belonged to Pakistan. vi) Identified the appellants. i) He returning Jayantipur Hatkhola Bazar and saw pandemonium on the land 15 of his brother (PW8) and found that four persons have been arrested by BSF personnel. ii) Heard the accused saying they came from Bangladesh, two of them belonged to Pakistan and the other two belonged to India. iii) One of the four accuseds stated that he belonged jangisangathan Laskar-e-taiba, there were others villagers also present there. iv) One of them stated his name as Md. Younus, other was named as Md. Abdullah. v) Could identify two of appellants. vi) During cross-examination, he stated he had two criminal cases pending against him. b) Recovery from the rented house of Sk. Abdul Nayeem @ Samir:- Witness Name and No. PW 34: Arunava Mukherjee (Officer Incharge Special Operation Group, CID, WB) Deposition of Witness i) He is the investigating officer. ii) He recorded the statement of Sk. Abdul Nayeem @ Samir. iii) Following his statement, he searched the rented premises of Sk. Abdul Nayeem @ Samir at 19, Madan Mohan Barman Street, Kolkata, 700007. iv) In the course of search, he following recovered articles:- a) One ration card in the name of Md. Manjur, another one in the name of Md. Mehrab. b) One electricity bill of 16 CESC in the name of Md. Manjur. c) Xerox Election Commission of India ID Card in the name of Md. Manjur. d) One letter from Regional passport office addressed to Md. Mehrab. e) One driving licence in the name of Md. Fahim. f) One election commission ID card of Md. Kadir. g) One membership card of a club in the name of Sk. Samir. h) One visiting card in the name of Rehamat Ali, Fruit merchant. i) One electricity bill in the name of Md. Manjur for month of January, 2007. j) One rent slip in the name of Md. Manjur for the of September, 2006. k) One letter of Md. Mehrab dated 2.3.2007 name of Manager of Punjab National Bank, Jakaria Street, Kolkata cheque book account No. 5202. l) One letter of electoral registration officer in the name of Md. Nazem. m) One driving licence in the 17 name of Sk Samir. n) Xerox copy of driving licence of Md. Mehrab. o) One Xerox copy of driving licence of Md. Fahim. p) Two maps of West Bengal and North Eastern State. q) 50 Anti-Indian Leaflets in Urdu and English. r) One empty cardboard box light brown containing sticky material. v) He prepared the seizure list marked as Exhibit 12. vi) Seized articles were packed, sealed and labelled. i) On 06.04.2007 he accompanied P.W 34 along with Sk. Abdul Nayeem @ Samir at 19, Madan Mohan Barman Street, Kolkata, 700007 at 2nd floor. ii) As per identification of Sk. Abdul Nayeem @ Samir they entered his tenanted room and recovered various articles. PW 24: Pallab Kr. Ganguly, (Officer, Special Operation Group, CID, West Bengal) iii) All the articles apart from the sticky substance were kept in an envelope which was sealed sticky substance kept in a separate envelope and labelled. labelled. The PW 23: Ajit Sinha, (Businessman – independent witness) iv) He proved his signature on a full scape paper. i) He has business. a book binding ii) He went to Osman book house at Madan Mohan Barman Street. iii) He identified Sk. Abdul Nayeem 18 @ Samir. iv) In his presence police recovered various articles including one liquid material from a wooden black coloured box. v) He signed on the seizure list. vi) In cross-examination, suggestion was given to P.W. 23 that he is a pocket witness and had deposed in other cases. vii) He admitted his signature was not on any of the seized items. i) He gave one room on rent to Sk. Samir on third floor of the house. ii) He had given the room on rent for three months. iii) His wife also came to stay with him. iv) During her stay, police came to the room. Fruit seller by occupation i) ii) Md. Meharab resides at 40, Madan Mohan Barrman Street iii) The said house is on tenancy and Md. Mustakin Landlord PW 26: Mehtab Ahmed, (Landlord of Sk. Samir) PW 20: Md. Manjur,(Uncle of Md. Mehrab) (Declared Hostile) iv) Interrogated by CID v) Knows Sk. Samir as he used to bring fruits from UP and sold the same to his Mahajan, Md. Rehad for a commission of 6 % vi) Identified Sk. Samir vii) He has an elder brother Md. Nijam, who used to send mangoes from UP to Calcutta for sale viii) Sk. Samir used to reside as a tenant at 19, Madan Mohan Barman Street, Cal-7 i) Resident of 40 Madan Mohan Barman Street. PW 21: Md. Nijam, (Brother of Md, Manjur) 19 ii) Fruit seller by occupation. iii) Samir used to bring mangoes from Maliabad, UP to Calcutta. iv) Witness accused disclosed himself Abdullah. identify failed (Sk. Samir) as he as Md. v) He stated his eye sight has deteriorated. c) Judicial confessions of Muzaffar Ahamed Rather, Md. Abdullah and Md. Younus:- Witness Name and No. PW 34: Arunava Mukherjee (Officer Incharge Special Operation Group, CID, WB) PW 35: Anjan Kumar Sengupta (Judicial Magistrate) PW 36: Dipendra Nath Mishra, (ACJM, Bongaon PS) PW 37: Abdul Hossain Laskar, (Constable, Bongaon Lockup) Deposition of Witness i) He forwarded appellants to record judicial confession. i) On

20.04.2007 confession of Md. Abdullah. ii) Md. Abdullah is a resident of recorded Pakistan (Exhibit 18). iii) On the same day recorded confession of Md. Younus. iv) Younus stated that he is a (Exhibit resident of Pakistan 19). i) On 24.04.2007, confessional statement of Muzaffar Ahamed was recorded as Exhibit 20. i) He identified Md. Abdullah before Judicial Magistrate. d) Steps during investigation:- Witness Name and No. P.W. 12: Sanjit Chakraborty, Inspector In Charge, Bongaon Police Deposition of Witness i) On 04.04.07 5:05 AM P.W. 31 produced four accused persons along with one seizure list and 20 Station) PW 29: Ajoy Kumar Pandey, (ASI, Bongaon PS) PW 33: SI Joy Roychowdhury, (Sub- Inspector, CID, West Bengal PW 27: Parthanath Majumder (Inspector, CID, West Bengal) PW 34: Arunava Mukherjee (Officer Incharge Special Operation Group, CID, WB) seized articles at the police station. ii) He received written complaint and drew a formal FIR (Exhibit 5). iii) He deposited the seized articles with officer-in-charge Malkhana. i) He received seized articles from Commander of BSF (P.W. 31). ii) On 4.4.07, PW. 34 re-seized the articles under a seizure list. iii) He signed on the seizure list. i) On 4.4.07, he received the seized articles from SI Ajoy Kumar Pandey (P.W. 29). i) He assisted P.W. 34 in the investigation. ii) As per his direction he seized the following articles:- a) Bank account opening form of Md. Mehrab with photograph b) Ration card of Md. Mehrab c) Statement of account of Md. Mehrab. i) He went the place of occurrence. ii) He prepared sketch map with index (Exhibit 17, 17/1). interrogated iii) He accused persons including Sk. Samir. iv) Pursuant to statement of Sk. Samir incriminating articles including 50 anti-Indian in English and pamphlets Urdu, one card board box sticky containing brownish 21 material were recovered from his tenanted premise at 19, Madan Mohan Barman Street, Kolkata, 700007. v) He sent Sk. Samir and Muzzafar Ahamed Rather for narco-analysis test. vi) He did not receive report. vii) He sticky FSL substance examination. viii) He did not receive report. ix) He forwarded Md. Abdullah, Md. Younus and Muzaffar Ahamed Rather for recording confession Judicial Magistrate. before x) He seized one account opening in the name of Md. Sarfaraz and Sk. Samir from ICICI Bank. report xiii) He xi) He examined bank officials. xii) He collected verification report of Deputy Commissioner of Police, Special Branch respect of passport in the name of Md. Manjur. collected Chandra Azad University with verification of identity card in the name of Muzaffar Ahamed Rather and Md. Abdullah. xiv) He prayed for permission to prosecute accused persons under sections 121, 121A, 122, 124A read with section 120B IPC. Sekhar regard xv) He obtained permission from proper authority. xvi) He submitted charge-sheet. xvii) He produced 50 leaflets in 22 PW 39: Parthapratim Roy, (Inspector, CID, West Bengal) PW 38: Dr.Dilip Kumar Kuila, (Junior Scientific Officer, FSL) English and Urdu Exhibit XI) in Court. (Material i) He collected copy of CFSL report in respect of brownish sticky substance. ii) He prayed for permission to prosecute Sk. Abdul Nayeem under section 5(b) of Explosive Substances Act. iii) District Magistrate North 24 Parganas granted permission (Exhibit 22 and 22/1). iv) He submitted supplementary charge-sheet under section 5(b) of Explosive Substances Act against Sk. Nayeem. i) He was junior scientific officer at CFSL Laboratory, Government of India, Kolkata. ii) On 11.06.2007, he received a sealed packet bearing No.1814 labelled as ‘Exhibit Mark A’ containing some brown colour sticky material. iii) On examination he opined the constituted material Nitroglycerine, special category explosive substance. iv) He returned the remnants of Exhibit A in a sealed packet report 30.05.2008 (Exhibit 21). e) Sanction to prosecute:- Witness Name and No. PW 30: Sukumar Bhattacharjee, (Joint Secretary to Government of West Bengal) Deposition of Witness i) He proved the sanction granted on 27.06.2007 under section 196 Cr.P.C. to prosecute the accused persons under section 121, 121A, 124A read with section 120B IPC 23 PW 39: Parthapratim Roy, (Inspector, CID, West Bengal) (Exhibit 13). i) He proved the sanction granted by District Magistrate to prosecute under section 5(b) of the Explosive Substance Act (Exhibit 22 and 22/1). f) Other witnesses – verification of seizure documents:- Documents seized ICICI Bank Visa Card (seized from Sk. Nayeem at Petrapole Border) Witness i) P.W. 13, Ritesh Kumar Jha, Branch Manager, ICICI Bank deposed card was issued by Chowringhee Branch for a joint account held by Md. Sarfaraz and Sk. Samir. ii) Account opening form of ICICI Bank, Chowringhee Branch in the name of Md. Sarfaraz and Sk. Samir and signed including photograph of account holders were seized. documents Letter from Regional Passport (seized from Nayeem’s rented apartment) iii) P.W. 14, Krishna Gupta, Assistant Manager, ICICI Bank identified the card issued by ICICI Bank. iv) P.W. 20, Md. Manjur stated he handed over his ration card and electric bill to Sk. Samir for his job at ICICI Bank. i) (P.W. 18), Monilal Mukherjee, Assistant Superintendent, Regional Passport Office deposed I.O. (P.W. 34) seized passport application form in the name of Md. Mehrab (P.W. 25) on which photograph of Sk. Nayeem was affixed and other documents. ii) P.W. 34 collected the verification report of Deputy Commissioner of Police, Special Branch of Kolkata with regard to passport of Md. Manjur but the same has not been exhibited. iii) P.W. 19, Sumit Ranjan Sarkar, 24 UDC Officer, Regional Passport Office was a witness to the seizure. i) P.W. 34 (I.O.) deposed he collected verification report from Registrar of Chandra Shekhar Azad University of Agriculture Technology, Kanpur, U.P. that the cards were not genuine but report had not been submitted in Court. i) Md. Mehrab (P.W. 25) stated his uncle Manjur (P.W. 20) had handed over his ration card to Sk. Samir. Md. Manjur (P.W. 20) corroborated this fact. ii) Asit Kumar Roy (P.W.15), officer, Punjab National Bank, Ballabh Das Sarda (P.W. 16), officiating officer, Punjab National Bank, Zakaria Street and Sanjay Sinha (P.W. 17), Branch Manager, Punjab National Bank deposed account opening form of Md. Mehrab and copy of ration card and Form 16 signed by Md. Mehrab were seized by Parthanath Majumdar (P.W. 27). i) P.W. 15 (RTO) deposed number and name of the licence holders in the seized licences did not tally with the licence register. Fake university ID cards (seized from Md. Abdullah at Petrapole Border) Letter of Md. Mehrab dated 2.3.2007 to Manager of Punjab National Bank, Zakaria Street, Kolkata (seized from Nayeem’s residence) Driving licence in the name of Sk. Samir, Md. Fahim (seized from Petrapole and Nayeem’s residence) Judicial confessions:- (i) Analysis of evidence pertaining to the confessions:-

11. P.W. 34, Arunava Mukherjee, investigating officer deposed he forwarded Muzaffar Ahamed Rather, Md. Abdullah and Md. Younus to record judicial confession before Magistrates (P.Ws. 35 and 36). 25

12. P.W. 35, Anjan Kumar Sengupta, Judicial Magistrate on

20.04.2007 recorded the statement of Md. Abdullah @ Asgar Ali. Md. Abdullah spoke in Hindu and Urdu. P.W. 35 questioned him in Hindi mixed with Urdu. He warned the accused that he is not required to make confession and the confession may be used against him. He recorded the statement in Bengali script. He explained the statement to the accused who put his signature on the document. He proved the entire statement (Exhibit 18). In similar manner he recorded the statement of Md. Younus on 20.04.2007. He proved his statement (Exhibit 19). In cross- examination, he denied the suggestion he did not have knowledge of Hindi language or that he could not speak or understand Hindi.

13. P.W. 36, Diptendra Nath Mitra, Judicial Magistrate recorded the statement of one Muzaffar Ahamed Rather. The accused could speak in Hindi. He recorded the statement of the accused in Hindi phonetics but in Bengali script. The statement was read over and explained to the accused. He put his signature on each page. He proved the confession (Exhibit 20).

14. The gist of the confessions of the appellants Muzaffar Ahamed Rather, Md. Abdullah and Md. Younus are set out hereinbelow:- (i) Md. Abdullah alias Asgar Ali:- a) Was a teacher by profession at Karachi, Pakistan from b) c) February, 2005 to February, 2006. Was unemployed thereafter. In 2006 met one Abdul Rehman, member of Jamat-ul- Dawa, who used to give money to him. d) Was sent by Abdul Rehman to Muzaffarabad where he was putting up at a place called ‘Sowai Nala’. 26 e) There were many people there. Jamat-ud-Dawa was originally a Lashkar organisation. By end of March he came to know that these people belonged to LeT. f) He was asked about his Passport and was sent to Karachi to get his passport. He returned with his passport. g) He was told his relatives are in India and he should accompany the other two accuseds because they were illiterate. h) i) He was sent to Bangladesh with two other people. He met one Ahmed there and later came to know that his actual name is Samir. j) Reached Bangladesh border on 1st April. Samir had promised to escort them to Jammu from Kolkata via train after crossing the border. k) They were provided with one Hussain Butt’s address and his phone number (596347), who was to take them to their destination further and instruct them as to what is to be done. l) A group of Lashkars are active here namely, Lashkar-e- Toiba. m) He confessed his mistake of being in touch with LeT. n) He admitted that he was a member of LeT and came to India for the first time. o) He suspects Hussain Butt holding a high post in the LeT group. p) He confessed that lashkaries have sent him to India. (ii) Md. Younus:- a) In 2005 during floods, members of Jamat-ul-dawa went to their place for distributing relief supplies. He met the members there. 27 b) He was told by them that a hospital has been built and people were needed there. He was Muzzafarabad along with them. Hospital was a make shift one. Thereafter, he returned back. c) On his second visit in October, 2006 he used to cook there. d) Upon returning back in the month of February 2007 he met two people, namely Hamza and Arfan, they asked him to join them and gave him a hefty sum in return. e) He was taken to Rawalpindi. He was told he will be sent to Bangladesh for some relief work which was going on. His Passport was arranged f) On 28th March, he was informed that he would have to leave for Dhaka on that day. g) At the time of his departure by Taxi, he was told that he is aged and hence if he dies due to any accident, drowning, fire or other causes that would be his achievement. h) He was told to get down at Dhaka and stay in a hotel. Md. Abdullah and Muzaffar accompanied him. i) One of them was given a phone number and Hamza gave a piece of paper to him in which something was written in Urdu. He was asked to keep it secretly and read it upon reaching Dhaka. j) On arriving, when he opened the piece of paper he found an Identity card. Md. Abdullah made a call on the said number. He was told a person by the name of Samir would receive them. k) On 1st April they reached the border along with Samir. Some unknown person helped them to cross the border. l) He was aware that they belonged to LeT group. He was well acquainted with the members of LeT group. 28 m) Hamza and Arfan are members of LeT group. They told him that Samir will take them to Punjab and then were asked to go to Jammu. n) Muzaffar would introduce him to one Sadaque and he would brief him about his duties. o) One Asmanbhai trained him at Muzzafarabad to operate ‘Kailashnikov’. The training period was of 21 days which included dismantling, re-assembling and to practice firing with ‘Kailashnikov’ gun. p) Others who were present there were also trained to operate the gun. Many guns were there. q) He was told why does he wish to come back, he has to die eventually and this way he will die and earn money. (iii) Muzzafar Ahmed Rather:- a) He was a student of class IX. Two terrorists came at night and threatened him to accompany them otherwise he will be shot. b) He was held captive by them for 2-3 days and was threatened of being killed if he tried to escape. He tried to escape but was caught and beaten for 2-3 days. After 5- 6 days he was taken to Pakistan after crossing the c) d) Indian Border. One Khalid admitted him to a Madrasa. Thereafter, he was given training to operate AK-47. They were taught charging hand grenades. He again tried to escape but was caught and were sent to the camp. e) After he got kidnapped his family members tried seeking help from the police but were stopped by the terrorist. f) They made arrangements for passport and sent him to Kashmir through Bangladesh. g) They were told an Indian boy would take them to Delhi from Bangladesh and then to Kashmir. 29 h) i) j) k) l) All three accuseds came to India by Air Plane. They had a talk to one Hamza in Pakistan. Samir told them that he would escort them in crossing the border. Samir spoke to some town boy. The town boy helped them in crossing the border. After crossing the border Samir and Md. Abdullah were caught. m) He and Younus sat down after walking for some distance. n) Two police personnel asked them if they were with the others. He replied in the affirmative and was arrested.

15. Learned Defence Counsels argued the confessions were not voluntary. Copies of the confessional statements were not supplied to them. Upon supply of the said statements, they were immediately retracted on 05.04.2008, 15.04.2008 and 17.04.2008. Although the appellants did not know Bengali, confessions were recorded in Bengali script. There are material contradictions in the confessions which militate against the very genesis of the prosecution case. In his confession, Md. Younus stated they had crossed the border on 01.04.2007 which wholly demolishes the prosecution case. (ii) Non-supply of confessions:-

16. Firstly, with regard to non-supply of the confessional statements, I find from order dated 19.09.2007 copies of documents under section 207 Cr.P.C. were supplied to all the appellants. They ascribed their signatures on the order-sheet acknowledging receipt. Post commitment, appellant Sk. Nayeem raised a plea on 10.07.2009 that confessional statements had not been supplied to him. In view of endorsement in the order-sheet, 30 acknowledging receipt of copies of documents including confessions and exhibited documents under section 207 Cr.P.C., such plea appears to be an afterthought. Be that as it may, upon his re-arrest copies of depositions including the confessions were supplied to Sk. Nayeem afresh vide order dated 12.10.2018. He was also given the opportunity to cross- examine the Judicial Magistrates who recorded the confessions. Hence, I am of the opinion confessional statements were duly supplied to all appellants and they had the opportunity to cross-examine the prosecution witnesses and did not suffer prejudice on such score. (iii) Judicial confessions:- Whether voluntary:

17. Appellants Muzaffar Ahamed Rather, Md. Younus and Md. Abdullah have retracted their confessions on 05.04.2008, 15.04.2008 and

17.04.2008 respectively. Such retractions were made belatedly after the lapse of one year. Apart from the delay in retracting the confessions, reason for their retraction is not convincing. It is merely alleged in the retraction petition they were pressurized by the police. However, the statements are bereft of any material particulars with regard to the manner and circumstances in which such pressure was exerted upon them. It may not be out of place to note in Bharat v. State of U.P.1 the Apex Court held as follows:- “7. The law as to confessions is perhaps too widely stated. Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the 1 (1971) 3 SCC 950 31 voluntary character of the confession and its truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. This was laid down by this in Subramania Court reported (emphasis supplied) Gounden v. State of Madras.” in an earlier

18. Applying the ratio in the present case, I note not only were the retractions delayed but they were cryptic. It was merely stated that confessions were made upon pressure by police. How, when and in what manner such pressure was exerted is not explicit. Retractions do not inspire confidence and appear to have been made as an afterthought upon legal advice. On the other hand, due caution had been given to the appellants by the Magistrates before the confessions were recorded. Both the Magistrates warned the appellants they were not required to make the confessions and the confessions, if made, may be used against them. Appellants also denied they were making the confessions due to undue influence, fear or coercion. They emphatically stated they were making 32 the confessions voluntarily. They also gave reasons for making the confessions.

19. It is also argued appellants did not have legal representation during investigation. Hence, confessions are invalid. Absence of legal representation at the time of making confession by itself does not render the confession inadmissible in law. A confession which is found to be voluntary and truthful may be relied upon even if the accused did not have legal representation at the time when he made the confession. Scheme of the Code lays down an onerous duty on the Magistrate to caution the accused who is brought before him that he is not required to make a confession and if confession is made the same shall be used against him. The Magistrate is also required to satisfy himself that the accused is making confession voluntarily and not due to any undue influence, coercion or threat. He is to append a memorandum at the foot of confession that caution was duly administered to the accused and a certificate that confession which is recorded is a full and true account of the statement made. These requirements have been fully satisfied in the facts of the case. Appellants made elaborate statements disclosing their personal details and peculiar circumstances which had brought them in contact with ‘LeT’. They also stated the manner in which they were recruited, trained and had illegally entered the country to pursue the objectives of ‘LeT’. These elaborate narrations (including minor errors) prove the confessions were voluntary and not a product of tutoring.

20. In Indian Law, test of voluntariness of a confession is to be judged from the safeguards engrafted in the Code and not tested on the anvil of 33 availability of legal advice from a lawyer chosen by the accused as held in Ernest A. Miranda vs. State of Arizona2. This issue fell for decision in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra3 wherein the Apex Court held as follows:- “455. It is thus clear to us that the protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework and we see absolutely no reason to draw any help from the Miranda principles for providing protection against self-incrimination to the accused.”

21. The Court in Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (supra) further clarified absence of legal representation during recording of confession would not vitiate trial and held as follows:- “467. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164 CrPC is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally.”

22. Hence, I hold judicial confessions of Md. Abdullah, Md. Younus and Muzaffar Ahamed Rather are voluntary in nature and not vitiated by threat, coercion or undue influence. Their retractions are belated and without any merit. 2 384 US 436 (1966) 3 AIR 2012 SC 3565 34 (iv) Truthfulness of the confessions:-

23. Confessions are corroborated by independent evidence on record. Official witnesses apprehended the appellants at the Petrapole Border. Their versions corroborate the confessions made by the appellants. P.W. 31 along with his team of officers being P.Ws. 1 to 7 proved the appellants were apprehended at Petrapole Border after illegally entering the country without valid documents. Fake documents regarding their identities were recovered from Sk. Nayeem. A fake driving licence purportedly in the name of Sk. Samir was recovered. Fake voter’s identity card purportedly in the name of Md. Kadir was recovered from Md. Younus. Fake ID cards of Chandra Sekhar Azad University of Agriculture and Technology, Kanpur were recovered from Md. Abdullah and Muzaffar Ahamed Rather. P.Ws. 10 and 11 who are local people deposed they saw BSF personnel had arrested four persons who had come from Bangladesh. P.W. 10 identified all the appellants while P.W. 11 identified Md. Younus and Md. Abdullah in Court. Though the other local witnesses, that is, P.Ws. 8 and 9 were declared hostile, they supported the crux of the prosecution case and stated BSF jawans had arrested four persons who had illegally entered from Bangladesh at Petrapole Border. The hostile witnesses identified the appellants in Court. Some of the local witnesses, that is, P.Ws. 8, 10 and 11 stated they heard the appellants were members of ‘LeT’, a terrorist organization. Evidence of the aforesaid witnesses lend corroboration to the confessions of the appellants that they were member of ‘LeT’ and pursuant to a conspiracy the appellants had illegally entered the country from Bangladesh to pursue their objectives. 35

24. Judicial confessions of the three appellants, namely, Muzaffar Ahamed Rather, Md. Younus and Md. Abdullah are corroborative of one another. A slight variation in the confession of Md. Younus that they entered the country on 1st April, 2007 appears to be a slip of tongue. Juxtaposing the confession of Md. Younus with that of the other appellants would show the appellants had come to the border on 1st April, 2007 and, thereafter, entered India on 3rd April, 2007. By mistake Md. Younus stated they had crossed the border on 1st April, 2007. This is a minor lapse which does not erode the truthfulness of the confessions. On the other hand, such inadvertent error reinforces the truthfulness and authenticity of the confessions of the appellants before the Magistrate. Had these appellants being tutored to make statements, such error would not have crept into their statements. This circumstance lends further credence to the truthfulness of the confessions of the appellants, as aforesaid. Hence, I am of the opinion confessions of Muzaffar Ahamed Rather, Md. Younus and Md. Abdullah are not only voluntary but also truthful and may be relied upon. (v) Whether the confessions may be used against Sk. Nayeem:-

25. It is strenuously argued on behalf of Sk. Nayeem the retracted judicial confessions of the other appellants cannot be used against him. In this regard, he relies on Kashmira Singh vs. State of Punjab4, Haricharan Kurmi vs. State of Bihar5 and Pancho vs. State of Haryana6.