The Case Of Shaukat

As in the case of Mohd. Afzal, the evidence against Shaukat Hussain consists of confessional statement made to the Deputy Commissioner of Police and the circumstantial evidence.

The confessional statement said to have been recorded by PW60 the DCP, Special Cell at 3.30 p.m. on 21.12.2001 is marked as PW60/6. As per Ext.PW60/11, the DCP administered the statutory warning and obtained an endorsement from Shaukat that he was not under any duress and he was ready to give the statement. We shall briefly refer to the contents of the confessional statement.

Shaukat spoke about his graduation in 1992 in Delhi, his acquaintance with SAR Gilani of Baramulla who was doing his post-graduation in Arabic language, starting fruit business in 1997 and disbanding the same, his marriage with a Sikh girl named Navjot Sandhu @ Afsan Guru (A4) in the year 2000, purchase of truck in her name in June, 2000 and starting transport business, his cousin Afzal of Sopore studying in Delhi University in 1990 and his friendship with Gilani at that time. Then he stated about Afzal motivating him to join the jihad in Kashmir and in October, 2001, Afzal calling him from Kashmir and asking him to arrange a rented house for himself and another militant, accordingly arranging rented accommodation in Boys' Hostel at Christian Colony and Afzal accompanied by the militant Mohammed coming to Delhi and meeting him at his house in Mukherji Nagar and Afzal disclosing to him that he was a Pak national of Jaish-e-Mohammad militant outfit and had come to Delhi for carrying out a 'fidayeen' attack. He then stated that during that period, he discussed about jihad with SAR Gilani who also offered help in carrying out the attack and Afzal thereafter going to Srinagar and bringing some other militants who were Pak nationals and who brought with them arms and explosives and they being accommodated at A-97, Gandhi Vihar and Afzal and Mohammed making preparations for the attacks. He then stated about the change of his mobile number as a precautionary measure and about his talks with Ghazibaba, Mohammed and Afzal from his previous number and lending his motorcycle. Then he stated that meetings were also held at his house for discussion and execution of the plans and his wife was also in the knowledge of their plans. Then he stated about the purchase of a second hand Ambassador car by Afzal and Mohammed, taking another rented accommodation in Indira Vihar. He then stated that on the night of 12.12.2001, he along with Afzal and Gilani met Mohammed and other militants at their Gandhi Vihar hideout and Mohammed gave Laptop computer and Rs.10 lakhs to Afzal with a direction to handover the Laptop to Ghazibaba and the money to be distributed among Afzal, Gilani and himself. Mohammed told them that the next day i.e. 13.12.2001, they were going to carry out 'fidayeen' attack on the Parliament House. He then stated that Afzal called him from his mobile phone number .89429 and asked him to watch TV and report about the latest position of the movement of VIPs in Parliament. By the time he switched on the TV, he received another call from Afzal that the mission was on. Thereafter, he met Afzal at Azadpur Mandi and both of them went to Gilani's house to give him Rs.2 lakhs. However Gilani wanted them to hand it over at his house in Kashmir. Finally, he stated that he along with Afzal left for Srinagar in his truck on the same day and they were apprehended at Srinagar on 15th December, 2001 and the Laptop and cash recovered by the police and later they were brought to Delhi.

Shaukat was produced before the ACMM by PW80 the next day along with the other accused and the ACMM recorded his statement. The ACMM had gone through the same procedure as in he case of Afzal and recorded the statement that there was no complaint against the police personnel and that Shaukat confirmed making the confessional statement before DCP any police pressure.

The first date on which Shaukat retracted the confession was on 19.1.2002 when he filed an application before the Designated Court expressing certain doubts about the 'verbal confession made before Special Cell'. He expressed that the Delhi Police would have twisted the confession 'in a different way and different formation'. He further stated that he was made to sign blank papers and was not allowed to read the confessional statement before he signed it. Therefore, he requested the Court to record his statement afresh. Another application was filed on 3rd June, 2002 i.e. after the charge- sheet was filed disputing the proceedings recorded by the ACMM when he was produced before the Magistrate on 22nd December and also stating that he gave verbal confessional statement before a Special Cell Officer and not before DCP or ACP. He maintained that he was forced to sign some blank papers. The difference between the case of Afzal and Shaukat in regard to confessional statement is that the retraction was done by Shaukat much earlier i.e. within a month after it was recorded by the DCP. The other point of difference is that Shaukat was sent to judicial custody unlike Afzal who was sent to police custody after they were produced before the ACMM. The same reasons which we have given in regard to the confessional statement of Afzal, hold good in the case of Shaukat as well except with respect to the breach of requirement as to judicial custody. The procedural safeguards incorporated in Sections 50(2), 50(3) & 50(4) are violated in this case also. True, Shaukat was sent to judicial custody after his statement was recorded by the Magistrate. But in the absence of legal advice and the opportunity to interact with the lawyer, there is reason to think that he would not have been aware of the statutory mandate under Section 32(5) and therefore the lurking fear of going back to police custody could have been present in his mind.

The learned ACMM did not apprise him of the fact that he would no longer be in police custody. There is also nothing to show that the confessional statement was read over to him or at least a gist of it has been made known to him.

On the point of truth of the confessional statement, we have, while discussing the case of Afzal, adverted to certain comments made by the learned counsel for the appellants in order to demonstrate that the alleged confession cannot be true judged from the standpoint of probabilities and natural course of human conduct. Of course, we have not rested our conclusion on these submissions, though we commented that they were 'plausible and persuasive'. However, in the case of Shaukat, there is one additional point which deserves serious notice. According to his version in the confession statement, his wife Afsan Guru (A4) was also having knowledge of their plans. Is it really believable that he would go to the extent of implicating his pregnant wife in the crime. It casts a serious doubt whether some embellishments were made in the confessional statement. We are not inclined to express a final opinion on this point as we are in any way excluding the confession from consideration on the ground of violation of procedural safeguards and the utterly inadequate time given by PW 60 for reflection.

The other point which was harped upon by the learned counsel Mr. Shanti Bhushan was that Shaukat and Afzal were not produced before the DCP in the forenoon on 21st December, 2001 as directed by him. In the first instance, Gilani was produced and when he was not prepared to give the statement, the learned counsel suggests that Shaukat and Afzal were taken back to police cell and subjected to threats and it was only after ensuring that they would make the confession, they were produced before the DCP late in the evening. It is contended that the reason given for not producing them at the appointed time is not convincing. Though the possibility pointed by the learned counsel cannot be ruled out, yet, the argument is in the realm of surmise and we are not inclined to discredit the confession on this ground. Excluding the confession from consideration for the reasons stated supra, we have to examine the circumstantial evidence against Shaukat and assess whether he joined in conspiracy with Afzal and the deceased terrorists to attack the Parliament House or whether he is guilty of any other offence. The circumstances analyzed by the High Court and put against the accused Shaukat Hussain in the concluding part of the judgment, apart from the confession, are the following:

1. He along with Afzal took on rent room No.5, Boys' Hostel, B- 41, Christian Colony on 7.11.2001 in which room the deceased terrorist Mohammed had stayed.

2. Cell phone No. 9810446375 which was recovered from the house of Shaukat was for the first time made operational on 2nd November, 2001. This conincides with the period when Afzal acquired a mobile phone and the first hideout was procured. This number was in contact with the satellite phone No. 8821651150059 and was also in communication with the mobile No. 9810693456 recovered from the deceased terrorist Mohammed, on which number Mohammed had received calls from the same satellite phone No. 8821651150059, and even Afzal had received phone calls from this number. This establishes that Shaukat was in touch with Afzal and Mohammed during the period November-December, 2001 and all the three were in contact with the same satellite phone No. 8821651150059.

3. Shaukat's motorcycle was recovered form the hideout and was used for recee by the terrorists.

4. Shaukat along with Afzal had left the premises A-97, Gandhi Vihar along with 4/5 other boys in the morning of 13.12.2001 at about 10 a.m. in an Ambassador Car.

5. When the Parliament was under attack, Afzal was in touch with Mohammed. Shaukat was in touch with Afzal. He was thus in contact with the co-conspirators and the deceased terrorists at the time of attack.

6. Shaukat had been visiting Afzal at A-97, Gandhi Vihar and 281, Indira Vihar. He had also accompanied him when the room at the Boys' Hostel at Christian Colony was taken on rent. It cannot be inferred that Shaukat was merely moving around with his cousin. Keeping in view the totality of the evidence, Shaukat was equally liable for what was happening at the hideouts.

7. Shaukat was present in Delhi till the forenoon of 13.12.2001 when Parliament was under attack and he absconded along with Afzal when both of them were arrested at Srinagar. His conduct, post attack, is incriminating.

8. The laptop recovered from the truck belonging to wife of Shaukat was the one which was used by the terrorists to create the identity cards of Xansa Websity and the fake Home Ministry stickers.

The High Court then commented at paragraph 402 "Shaukat's role in the conspiracy was clearly that of an active participant. Evidence on record does not show that he has been brought within the sweep of the dragnet of conspiracy by merely being seen associated with Afzal. There is more than mere knowledge, acquiescence, carelessness, indifference or lack of concern. There is clear and cogent evidence of informed and interested co-operation, simulation and instigation against accused Shaukat. Evidence qua Shaukat clearly establishes the steps from knowledge to intent and finally agreement".

Taking into account the confessional statement which stands corroborated by various circumstances proved, the High Court reached the inevitable conclusion that Shaukat was a party to the agreement constituting conspiracy. Once the confessional statement is excluded, the evidence against Shaukat gets substantially weakened and it is not possible to conclude beyond reasonable doubt on the basis of the other circumstances enumerated by the High Court, that Shaukat had joined the conspiracy to attack the Parliament House and did his part to fulfill the mission of the conspirators. Apart from the confession, the High Court seems to have been influenced by the fact that Shaukat was in touch with his cousin as well as the deceased terrorist Mohammed through cell phone. But this finding, as far as telephonic contact with Mohammed is concerned, is not borne out by the cell phone records on which the prosecution relied. There was no occasion on which Shaukat contacted Mohammed or any other terrorist. To this extent, there seems to be an error in the High Court's finding in the last sentence of circumstance No.2. The inference drawn in relation to circumstance No.6 that Shaukat "was equally liable for what was happening at the hideouts", cannot also be accepted. He may have knowledge of what was going on but it could not be said that he was equally liable for the acts done by the deceased terrorists and Afzal, unless there is enough material apart from the confession, to conclude that he was a party to the conspiracy.

With these comments on the findings of the High Court, let us see what could and could not be put against the appellant Shaukat. We undertake the exercise of referring in brief to the evidence touching on each of the circumstances adverted to by the High Court while noting the comments of Mr. Shanti Bhushan wherever necessary.

Shaukat in the company of Afzal seeking the assistance of PW38 who was running STD booth in Christian Colony to get a room on rent and approaching the proprietor of Boys' Hostel (PW37) and taking a room in the hostel on rent is established by the evidence of PW37 the propretor. Both PWs 37 & 38 identified Shaukat apart from Afzal. The more important piece of evidence is the fact revealed by PW37 that he saw one Ruhail Ali Shah staying in the room who showed his I.Card to him on enquiries. The identity card (Ext.PW4/4) which was shown to PW38 was identified when the two accused led the police to the hostel on 19.12.2001 itself. He also identified the accused Afzal and Shaukat, both before the police as well as in the Court. The fact that Shaukat and Afzal were coming to see Ruhail Ali Shah, who was no other than Mohammed, was also spoken to by him. The photograph Ext.PW29/5 of Ruhail Ali Shah, whose real name was Mohammed, was also identified by him. The contention of the learned counsel appearing for Shaukat that test identification parade ought to have been held, cannot be accepted having regard to the legal position clarified by us in the earlier part of the judgment. The fact that PW37 did not produce the register expected to be maintained by him, does not also discredit his testimony which has been believed by both the Courts.

The evidence of the investigating officer PW 66 and PW67 reveals that two mobile phone instruments were recovered on 15th December, 2001 from the house of Shaukat. One of them, namely, Ext.PW36/1 with the phone No.9811573506 was recovered from the hand of Afsan Guru. This was after the telephonic conversation over this number at 20.09 hours was intercepted on the night of 14th December. It transpired that the said conversation was between her and her husband Shaukat speaking from Srinagar. Another cell phone instrument with the number 9810446375 which was operated upto 7th December, 2001 was also found in the house and the same was seized. The call records indicate frequent contacts between Shaukat and Gilani and Shaukat and Afzal from the first week of November, 2001 upto 13th December, 2001. On the crucial day i.e. 13th December, 2001 just before the Parliament attack, Mohammed spoke to Afzal at 10.43 and 11.08 hours and then Afzal spoke to Shaukat at 11.19 hours and thereafter Mohammed spoke to Afzal at 11.25 hours and Afzal in turn called Shaukat at 11.32 hours. Mr. Shanti Bhushan has challenged the truth of recoveries of phones on the ground that no independent witnesses were required to witness the recovery. The learned counsel has relied on the decisions in Sahib Singh Vs. State of Punjab [(1996) 11 SCC 685, paras 5 & 6] and Kehar Singh Vs. State (Delhi Administration) [(1988) 3 SCC 609 at page 654, para 54] to show that in the absence of independent witnesses being associated with search the seizure cannot be relied upon. We do not think that any such inflexible proposition was laid down in those cases. On the other hand we have the case of Sanjay v. NCT [(2001) 3 SCC 190], wherein it was observed at para. 30, that the fact that no independent witness was associated with recoveries is not a ground and that the Investigation Officers evidence need not always be disbelieved. Of course, closer scrutiny of evidence is what is required. Having regard to the fact situation in the present case, the police officers cannot be faulted for not going in search of the witnesses in the locality. There is no law that the evidence of police officials in regard to seizure ought to be discarded. They took the help of Gilani who by then was in police custody to locate the house of Shaukat and that Gilani was with the police, was mentioned by Afsan Guru in her Section 313 statement.

The next point urged by the learned counsel for the appellant that the details regarding sales of mobile phones and SIM cards was not checked up from the distributors of AIRTEL or ESSAR does not also affect the credibility of recoveries. Such omissions in investigation cannot be magnified. The learned counsel Mr. Shanti Bhushan as well as Mr. Sushil Kumar contended that it was quite likely that all the deceased terrorists were having one mobile phone each, but only three were shown to have been recovered and the other two must have been foisted on the accused giving the colour of recovery from them. We find no justification for this comment. Another point urged is that the recovery of phones shown to be after 10.45 a.m. on 15th December cannot be true as Afsan Guru was arrested on the night of 14th December, as held by the trial Court on the basis of testimony of Srinagar police witnesses that the information about the truck given by Afsan Guru was received early in the morning of 15th December. It is therefore pointed out that the prosecution did not come forward with the correct version of the search and recovery of the articles in the house of Shaukat. In this context, it must be noted that Afsan Guru (A4) was not consistent in her stand about the time of arrest. Whereas in her statement under Section 313, she stated that she was arrested on 14th December between 6.00 & 7.00 p.m. In the course of cross examination of PW67, it was suggested that she was arrested at 6 or 6.30 a.m. on 15th December, 2001. Her version in the statement under Section 313 cannot be correct for the reason that the intercepted conversation was at 8.12 p.m. on 14th December, 2001 and the police could have acted only thereafter. Though the time of arrest, as per the prosecution version, seems to be doubtful, from that, it cannot be inferred that the search and recovery was false. One does not lead to the other inference necessarily. The search and recovery of phones having been believed by both the Courts, we are not inclined to disturb that finding. In any case, the fact that the phone No. 73506 was in the possession of Afsan Guru stands proved from the intercepted conversation and the evidence regarding the identification of voice.

Next, it was contended that the printouts/call records have not been proved in the manner laid down by Section 63, 65A & 65B of the Evidence Act. This point has been dealt with while dealing with the case of Afzal and we have upheld the admissibility and reliability of the call records. The point concerning the duplicate entries has already been considered in the case of Afzal and for the same reasons we find no substance in this contention in regard to some of the duplicate entries in the call records.

The fact that the Yamaha Escorts motorcycle with the registration No.DL1SA3122 belonged to Shaukat Hussain, is borne out by the registration records produced by PW53. In fact, in the course of Section 313 examination, he did not deny that fact. This motorcycle was found at 281, Indira Vihar as seen from the evidence of PW76 and PW32. Shaukat together with Afzal led the police to the said premises at Indira Vihar as seen from the 'pointing out and seizure memo' (Ext.PW32/1) coupled with the evidence of PW76. PW32/1 was attested by PW32 also who was present at the time of search. As per the evidence of PW32, Mohd. Afzal whom he identified in the Court, had taken the 2nd Floor on rent on 9.12.2001 through the property dealer PW31. PW32 stated that five or six persons were found in the upstairs on 11th December, 2001. When enquired as to why they were in the flat instead of his family, Afzal stated that they would be leaving soon. On 12th December, 2001 Afzal left the premises after putting the lock which was broken open by the police on 16th December. We have already noticed that the chemicals used for preparation of the explosives which were purchased by Afzal were recovered from the premises in the presence of PW32. Six detonators in a plastic container were also found. Though PW32 claimed to have identified the photographs of the deceased terrorists as those who were found in the premises, this part of the evidence is not entitled to any weight as rightly contended by Mr. Shanti Bhushan. PW32 stated that the police showed him some photographs and told him that those were the photos of the slain terrorists who attacked the Parliament. Thus, the so called identification by PW32 on the revelation by the police cannot be relied upon. In fact, the High Court did not believe this witness on the point of identification of photos (vide paragraph 326 of judgment). However it is quite clear from the chemicals and explosive materials found there that this hideout was taken by Afzal to accommodate the deceased terrorists who stayed there to do preparatory acts. The fact that Shaukat's motorcycle was also found there, would give rise to a reasonable inference that Shaukat kept it for use by Afzal and his companions. It also reinforces the conclusion that Shaukat was aware of the Indira Vihar abode of these persons.

The evidence of PW34 who let out the 2nd Floor of his house at A-97, Gandhi Vihar to the accused Afzal through PW33 the property dealer, reveals that Shaukat used to come to meet Afzal who was staying there under a false name of Maqsood and that Shaukat used to meet Afzal at that place. PW34 identified Afzal and Shaukat. From the house in Gandhi Vihar, sulphur packets (purchased by Afzal), Sujata Mixer grinder in which traces of explosive material were detected, were found. PW34 identified the photograph of the terrorist Mohammed (Ext.PW1/20) as the person who stayed with Afzal for a few days in the premises. He stated that he could only identify the photograph of Mohammed but not rest of them when the police showed him the photographs. His evidence on the point of identification of Mohammed's photograph inspires confidence as Mohammed stayed in the premises for a few days. The witness also deposed to the fact that on 13th December, 2001, Afzal, Shaukat and four more persons left the premises around 10 a.m. and all excepting Afzal got into an Ambassador car and Afzal came back to the premises. However, he did not mention that one of the accompanying persons was Mohammed. His evidence establishes that Shaukat was a frequent visitor to Gandhi Vihar hideout and he was with Afzal and some others even on the crucial day.

That after the attack on 13th December, Afzal and Shaukat left for Srinagar in the truck owned by the wife of Shaukat and that the laptop, mobile phone and cash of Rs. 10 lacs was recovered, is established by unimpeachable evidence. In her examination under Section 313 Cr.P.C. Afsan admitted that her husband left Delhi in the truck to Srinagar on 13th December though she expressed her ignorance about Afzal going with him. There is the evidence of PW 61, DSP at Srinagar that they stopped the truck near the police station at Parampura and on the pointing out of Afzal and Shaukat they recovered the laptop, mobile phone and Rs. 10 lacs from the truck and the two accused were arrested at 11.45 a.m. on 15th December. Evidence of PW 61 was corroborated by PW 62, another police officer. There is a controversy on the question as to when the Srinagar police received the information, i.e., whether at 10.30 or so on 15th December or in the early morning hours of 15th December. But the fact cannot be denied that Srinagar police acted on the information received from Delhi about the truck number which was conveyed by Afsan (A4). PWs 64 and 65, the police officers of Delhi also testified that Afzal and Shaukat were handed over to them along with the seized articles on 15th December at 1 P.M. as they reached Srinagar by a special aircraft. The stand taken by Shaukat was that he was arrested in Delhi from his house on 14th December which is obviously false in view of the plethora of evidence referred to supra. As regards the truck, he stated in the course of Section 313 examination that the truck loaded with bananas was sent to Srinagar on the night of 13th December. The falsity of Shaukat's version of arrest in Delhi on 14th is established by the fact that on the night of 14th, Shaukat did call up from Srinagar and spoke to his wife Afsan, the receiving number being 73506 which was later recovered from the house of Shaukat. The Conversation was taped and PW48 the Senior Scientific Officer in CFSL, Delhi compared the voice samples of Shaukat and Afsan Guru sent to him with the voice on the cassette which recorded intercepted conversation. He made auditory and spectrographic analysis of voice samples. He submitted a report Ext. PW 48/1. PW 48 testified that on comparison the voice was found to be the same. The High Court doubted the authenticity of the intercepted conversation on the ground that duration noted by the expert in his report was two minutes and 16 seconds was at variance with the duration of 49 seconds noted in the call records. The High Court laboured under the mistaken impression that the duration was 2 minutes and 16 seconds which was the duration of conversation between Gilani and his brother. Even then there is some discrepancy (between 49 and 74 seconds which according to PW48 was approximate) but no question was put to PW 48 in this regard nor any suggestion was put to PW 48 that the voice was not the same. If any such challenge was made the trial Court would have heard the conversation from the tape and noted the duration. We are, therefore, of the view that the finding as regards interception of truck, recovery of laptop etc. from the truck and the arrest of Shaukat along with Afzal on 15th December at about 11.45 A.M. at Srinagar cannot be doubted. As already discussed, the laptop computer stored highly incriminating material relating to the identity cards found with the deceased and the Home Ministry stickers pasted on the car used by them.

In addition to the above circumstances, the prosecution has placed reliance on the evidence of PW45 who is the landlord of Shaukat to prove that not only Afzal but also the deceased terrorists used to come to Shaukat's residence on the first floor a few days before the incident. In addition, PW45 stated that he had seen the persons, whose photographs he identified going to Shaukat's residence often two or three days prior to 13th December. The photographs were those of the deceased terrorists. He stated that he was running a printing press in the ground floor from where he could see the people going to the first floor. He also stated that he was called by police in the Special Cell at Lodi Road on 17th December and he was shown some photographs which he identified as those relating to the persons visiting Shaukat and Navjot. But, we find no evidence of his identification before he was examined in the Court. It is difficult to believe that he would be in a position to identify (in the Court) after a lapse of eight months the casual visitors going to the first floor of Shaukat by identifying their photographs. In fact, in some of the photographs, the face is found so much disfigured on account of injuries that it would be difficult to make out the identity on seeing such photographs. Yet, he claimed to have identified the photographs of all the five deceased terrorists as those visiting Shaukat's residence. He stated that he could not identify Gilani as the person who was visiting Shaukat's residence at that crucial time but after a leading question was put, he identified Gilani in the Court. The High Court did not attach any weight to his evidence regarding identification of the deceased terrorists. Though the trial Court referred to his evidence inextenso, no view was expressed by the trial Court on the point of reliability of his evidence regarding identification. Moreover, we find considerable force in the argument of the learned counsel for the appellant that it is hard to believe that the terrorists would take the risk of going to Shaukat's place for the so called meetings thereby exposing to the risk of being suspected, especially, at a place where two police sub-inspectors were staying as stated by PW 45. Even according to the prosecution case, by that time, the deceased terrorists had settled down at their respective hide-outs with the help of Afzal. In the normal course, the terrorists would not have ventured to go out frequently and if necessary they would call Shaukat for a meeting at their place of stay instead of the whole gang going to Shaukat's place frequently. For all these reasons we have to discard the evidence of PW 45 insofar as he testified that the deceased terrorists were the frequent visitors of Shaukat's residence before the incident.

In addition to the above circumstances, the prosecution has placed reliance on the evidence of PW45 who is the landlord of Shaukat to prove that not only Afzal but also the deceased terrorists used to come to Shaukat's residence on the first floor a few days before the incident.

The prosecution also relied on another circumstance, namely, that Shaukat had accompanied Afzal to the shop of PW49 on 4th December, 2001 to purchase a Motorola make mobile phone which was ultimately recovered from the deceased terrorist Rana at the spot. No doubt PW49 stated that when Afzal came to purchase telephone from the shop, the accused Shaukat present in the Court was also with him. We are not inclined to place reliance on the testimony of PW41 regarding Shaukat's presence. It would be difficult for any one to remember the face of an accompanying person after a considerable lapse of time. The High Court did not place reliance on this circumstance. There are, however, two circumstances which can be put against the accused Shaukat. The secondhand motorcycle No. HR 51E-5768 was sold to Mohd. Afzal on 8th December. He identified Afzal and Shaukat in the Court as the persons who came to his shop on that day in the company of two others including a lady. He also identified them at the Special Cell on 19th December. He could not identify the lady as Afsan. However, he identified the photograph of the deceased terrorist Mohammed at the Special Cell on 19th December and also in the Court. This motorcycle of Afzal was recovered from the hideout at A-97, Gandhi Vihar which Shaukat used to visit frequently. His presence at the shop with Mohammed apart from Afzal would show that he had acquaintance with Mohammed also. The evidence of this witness has been criticized on the ground that test identification parade could have been held and that there was discrepancy in regard to the date of seizure memo of the bill book. These are not substantial grounds to discredit the testimony of an independent witness PW29. The High Court was inclined to place reliance on this witness in regard to the identification of the deceased terrorist having regard to the fact that they would have been in the shop for taking trial etc., and that the witness would have had enough opportunity to observe the buyer's party for quite some time.

Another circumstance that ought to be taken into account against Shaukat is the telephonic conversation between him and his wife Afsan on the night of 14th December. We have already held that the intercepted conversation recorded on the tape is reliable and the High Court should not have discounted it. The conversation shows that Shaukat was with another person at Srinagar, by name Chotu (the alias name of Afzal, according to the prosecution) and that panic and anxiety were writ large on the face of it. In the light of the above discussion, can it be said that the circumstances established by satisfactory evidence are so clinching and unerring so as to lead to a conclusion, unaffected by reasonable doubt, that the appellant Shaukat was a party to the conspiracy along with his cousin Afzal? We find that there is no sufficient evidence to hold him guilty of criminal conspiracy to attack the Parliament. The gaps are many, once the confession is excluded. To recapitulate, the important circumstances against him are:

1. Taking a room on rent along with Afzal at Christian Colony hostel into which Afzal inducted the terrorist Mohammed about a month prior to the incident. Shaukat used to go there.

2. The motorcycle of Shaukat being found at Indira Vihar, one of the hideouts of the terrorists which was hired by Afzal in the 1st week of December 2001.

3. His visits to Gandhi Vihar house which was also taken on rent by Afzal in December 2001 to accommodate the terrorists and meeting Afzal there quite often, as spoken to by PW34.

4. Accompanying Afzal and Mohammed for the purchase of motorcycle by Afzal.

5. His frequent calls to Afzal especially on the date of attack,

6. His leaving Delhi to Srinagar on the date of attack itself in his truck with Afzal who carried a mobile phone, laptop used by terrorists and cash of Rs.10 lakhs.

7. The fear and anxiety with which he and his wife conversed over phone on the night of following day.

These circumstances, without anything more, do not lead to the conclusion that Shaukat was also a party to the conspiracy in association with the deceased terrorists. The important missing link is that there was no occasion on which Shaukat ever contacted any of the deceased terrorists on phone. Shaukat was not shown to be moving with the deceased terrorists at any time excepting that he used to go with Afzal to the Boys' hostel where Mohammed was staying initially and he once accompanied Afzal and Mohammed to the mobile phone shop. He did not accompany Afzal at the time of purchases of chemicals etc. used for preparation of explosives and motor car used by terrorists to go to Parliament House. In the absence of any evidence as regards the identity of satellite phone numbers, the Court cannot presume that the calls were received from a militant leader who is said to be the kingpin behind the operations. The frequent calls and meetings between Shaukat and Afzal should be viewed in the context of the fact that they were cousins. Though his inclination and willingness to lend a helping hand to Afzal even to the extent of facilitating him to flee away from Delhi to a safer place soon after the incident is evident from his various acts and conduct, they are not sufficient to establish his complicity in the conspiracy as such. Certain false answers given by him in the course of examination under Section 313 are not adequate enough to make up the deficiency in the evidence relating to conspiracy as far as Shaukat is concerned. At the same time, the reasonable and irresistible inference that has to be drawn from the circumstances established is that the appellant Shaukat had the knowledge of conspiracy and the plans to attack the Parliament House. His close association with Afzal during the crucial period, his visits to the hideouts to meet Afzal, which implies awareness of the activities of Afzal, the last minute contacts between him and Afzal and their immediate departure to Srinagar in Shaukat's truck with the incriminating laptop and phone held by Afzal would certainly give rise to a high degree of probability of knowledge on the part of Shaukat that his cousin had conspired with others to attack the Parliament and to indulge in the terrorist acts. He was aware of what was going on and he used to extend help to Afzal whenever necessary. Having known about the plans of Afzal in collaborating with terrorists, he refrained from informing the police or Magistrate intending thereby or knowing it to be likely that such concealment on his part will facilitate the waging of war. In this context, it is relevant to refer to Section 39 Cr.P.C.:

(i) Sections 121 to 126, both inclusive, and Section 130 (that is to say offences against the State specified in Chapter VI of the said Code); 

shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention;

Thus, by his illegal omission to apprise the police or Magistrate of the design of Afzal and other conspirators to attack the Parliament which is an act of waging war, the appellant Shaukat has made himself liable for punishment for the lesser offence under Section 123 IPC. If he had given the timely information, the entire conspiracy would have been nipped in the bud. The fact that there was no charge against him under this particular Section, does not, in any way, result in prejudice to him because the charge of waging war and other allied offences are the subject matter of charges. We are of the view that the accused Shaukat is not in any way handicapped by the absence of charge under Section 123 IPC. The case which he had to meet under Section 123 is no different from the case relating to the major charges which he was confronted with. In the face of the stand he had taken and his conduct even after the attack, he could not have pleaded reasonable excuse for not passing on the information. Viewed from any angle, the evidence on record justifies his conviction under Section 123 IPC.

In the result, we find Shaukat Hussain Guru guilty under Section 123 IPC and sentence him to the maximum period of imprisonment of 10 years (rigorous) specified therein. He is also sentenced to pay a fine of Rs.25000/- failing which he shall suffer R.I. for a further period of one year. The convictions and sentences under all other provisions of law are set aside. His appeal is allowed to this extent.