Supreme Court Judgment

1. The genesis of this case lies in a macabre incident that took place close to the noon time on 13th December, 2001 in which five heavily armed persons practically stormed the Parliament House complex and inflicted heavy casualties on the security men on duty. This unprecedented event bewildered the entire nation and sent shock waves across the globe. In the gun battle that lasted for 30 minutes or so, these five terrorists who tried to gain entry into the Parliament when it was in session, were killed. Nine persons including eight security personnel and one gardener succumbed to the bullets of the terrorists and 16 persons including 13 security men received injuries. The five terrorists were ultimately killed and their abortive attempt to lay a seize of the Parliament House thus came to an end, triggering off extensive and effective investigations spread over a short span of 17 days which revealed the possible involvement of the four accused persons who are either appellants or respondents herein and some other proclaimed offenders said to be the leaders of the banned militant organization known as "Jaish-E-Mohammed". After the conclusion of investigation, the investigating agency filed the report under Section 173 Cr.P.C. against the four accused persons on 14.5.2002. Charges were framed under various sections of Indian Penal Code (for short 'IPC'), the Prevention of Terrorism Act, 2002 (hereinafter referred to as 'POTA') and the Explosive Substances Act by the designated Court. The designated Special Court presided over by Shri S.N. Dhingra tried the accused on the charges and the trial concluded within a record period of about six months. 80 witnesses were examined for the prosecution and 10 witnesses were examined on behalf of the accused S.A.R. Gilani. Plethora of documents (about 330 in number) were exhibited. The three accused, namely, Mohd. Afzal, Shaukat Hussain Guru and S.A.R. Gilani were convicted for the offences under Sections 121, 121A, 122, Section 120B read with Sections 302 & 307 read with Section 120- B IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of POTA and Sections 3 & 4 of Explosive Substances Act. The accused 1 & 2 were also convicted under Section 3(4) of POTA. Accused No.4 namely Navjot Sandhu @ Afsan Guru was acquitted of all the charges except the one under Section 123 IPC for which she was convicted and sentenced to undergo R.I. for five years and to pay fine. Death sentences were imposed on the other three accused for the offence under Section 302 read with Section 120-B IPC (it would be more appropriate to say Section 120-B read with Section 302 IPC) and Section 3(2) of POTA. They were also sentenced to life imprisonment on as many as eight counts under the provisions of IPC, POTA and Explosive Substances Act in addition to varying amounts of fine. The amount of Rs.10 lakhs, which was recovered from the possession of two of the accused, namely, Mohd. Afzal and Shaukat Hussain, was forfeited to the State under Section 6 of the POTA.

2. In conformity with the provisions of Cr.P.C. the designated Judge submitted the record of the case to the High Court of Delhi for confirmation of death sentence imposed on the three accused. Each of the four accused filed appeals against the verdict of the learned designated Judge. The State also filed an appeal against the judgment of the designated Judge of the Special Court seeking enhancement of life sentence to the sentence of death in relation to their convictions under Sections 121, 121A and 302 IPC. In addition, the State filed an appeal against the acquittal of the 4th accused on all the charges other than the one under Section 123 IPC. The Division Bench of High Court, speaking through Pradeep Nandrajog, J. by a well considered judgment pronounced on 29.10.2003 dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru and confirmed the death sentence imposed on them. The High Court allowed the appeal of the State in regard to sentence under Section 121 IPC and awarded them death sentence under that Section also. The High Court allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and acquitted them of all charges. This judgment of the High Court has given rise to these seven appeals, two appeals preferred by Shaukat Hussain Guru and one appeal preferred by Mohd. Afzal and four appeals preferred by the State/Government of National Capital Territory of Delhi against the acquittal of S.A.R. Gilani and Navjot Sandhu.

It may be mentioned that the accused Mohd. Afzal and Shaukat Hussain Guru are related, being cousins. The 4th accused Navjot Sandhu @ Afsan Guru is the wife of Shaukat Hussain. The third accused S.A.R. Gilani is a teacher in Arabic in Delhi University. It is he who officiated the marriage ceremony of Shaukat Hussain Guru and Navjot Sandhu who at the time of marriage converted herself to Islam.

3.(i) Now, let us make a brief survey of the incident and the investigation that followed, which led to the filing of the charge-sheet, as apparent from the material on record.

(ii) There is practically no dispute in regard to the details of actual incident, the identification of the deceased terrorists and the recoveries and other investigations made at the spot.

(iii) Five heavily armed persons entered the Parliament House complex in a white Ambassador Car. The said five persons (hereinafter referred to as the 'slain' or 'deceased terrorists') were heavily armed with automatic assault rifles, pistols, hand and rifle grenades, electronic detonators, spare ammunition, explosives in the form of improvised explosive devices viz., tiffin bombs and a sophisticated bomb in a container in the boot of the car made with enormous quantity of ammonium nitrate. The High Court observed: "The fire power was awesome enough to engage a battalion and had the attack succeeded, the entire building with all inside would have perished."

(iv) It was a fortuitous circumstance that the Vice President's carcade, which was awaiting departure from Gate No.11 was blocking the circular road outside the Parliament building, with the result the deceased terrorists were unable to get free and easy access to the Parliament House building. The attack was foiled due to the immediate reaction of the security personnel present at the spot and complex. There was a fierce gun-battle lasting for nearly 30 minutes. As mentioned earlier, nine persons including eight security personnel and one gardener lost their lives in the attack and 16 persons including 13 security personnel, received injuries. The five assailants were killed.

(v) From the evidence of PW5 who was the ASI in-charge of Escort-I vehicle of the Vice-President, we get the details of the origin of the incident. He stated that at about 11.30 a.m. one white Ambassador car having red light entered the Parliament complex and came to the point where the carcade of the Vice-President was waiting near Gate No.11. Since the escort vehicle was blocking the way, the car turned towards left. He got suspicious and ordered the vehicle to stop. Then, the driver of the Ambassador car reversed the vehicle and while doing so struck the rear side of the car of the Vice-President. When the car was about to move away, he and the driver of the Vice- President's car ran towards the car and caught hold of the collar of the driver. As he was trying to drive away, PW5 took out his revolver. At that juncture, the five persons in the car got out of it and quickly started laying wires and detonators. Then PW5 fired a shot, which struck on the leg of one of the terrorists. The terrorist also returned the fire as a result of which he received a bullet injury on his right thigh. There was further exchange of fire. The evidence of other witnesses reveal that there was hectic movement of the terrorists from gate to gate within the complex firing at the security men on duty and the latter returning the fire.

(vi) The Station House Officer of Parliament Street Police Station, Shri G.L. Mehta (PW1) along with his team of police personnel reached the spot after receiving a wireless message. By that time, the firing spree was over. PW1 cordoned off the area. He found one deceased terrorist lying opposite Gate No.1 of the Parliament building, one deceased terrorist at the porch of Gate No.5 and three deceased terrorists lying in the porch of Gate No.9. The Bomb Disposal Squad of NSG, a photographer and a crime team were summoned to the spot. PW1 then deputed three Sub-Inspectors (PWs2 to 4) to conduct investigation at the three gates. PW1 then examined the spot of occurrence, prepared a rough sketch of the scene of occurrence and seized various articles including arms and ammunition, live and empty cartridges and the car and the documents found therein. Blood samples were also lifted from various spots. The photographs of the five slain terrorists were caused to be taken. Then, he sent the dead bodies to the mortuary in the hospital for postmortem.

(vii) After the Bomb Disposal Squad had rendered the area safe and his preliminary observations were over, PW1 recorded the statement of S.I. Sham Singh (PW55) who was in the security team of Vice-President. On the basis of this statement, 'Rukka' (Ext.PW1/1) was prepared and PW1 despatched the same to the police station at about 5 p.m. This formed the basis for registration of First Information Report. The FIR was registered for offences under Sections 121, 121A, 122, 124, 120-B, 186, 332, 353, 302, 307 IPC, Sections 3, 4 & 5 of the Explosive Substances Act and Sections 25 & 27 of the Arms Act by the Head Constable (PW14) of the Parliament Street Police Station. The copy of FIR was sent to the Court on the same day, as seen from the endorsement on the document (PW 14/1). The further investigation was, taken up by the special cell of Delhi Police.

(viii) Investigations conducted by PW1 and his team of officers led to the recovery and seizure of the following articles inter alia:

A white ambassador car, DL3CJ1527, with a VIP red light. The car had a sticker of the Home Ministry (subsequently found to be fake) on the windshield (Ex. PW 1/8) containing an inscription at the rear denigrating India and reflecting a resolve to 'destroy' it. Certain papers relating to the car were found inside the car.

Six fake identity cards purportedly issued by Xansa Websity, 37, Bungalow Road, New Delhi to different students with their address as 120-A, Adarsh Nagar, Delhi and the telephone number as 9811489429. These identity cards were in the names of Anil Kumar, Raju Lal, Sunil Verma, Sanjay Koul, Rohail Sharma and Rohail Ali Shah (which were subsequently found to be fake names of the deceased terrorists).

One fake identity card of Cybertech Computer Hardware Solutions in the name of Ashiq Hussain which was being carried by the deceased terrorist Mohammed.

Two slips of paper bearing five domestic mobile phone numbers, which were related to the instruments found on the deceased terrorists and two UAE numbers. Three SIM cards corresponding to the mobile phone numbers noted on the slips were found inside the aforementioned three instruments-Ext. P28, P37 & P27. In addition, three other SIM cards were recovered from the purse of the deceased terrorist Mohammad at Gate No.1.

One sheet of paper on which the topographical details regarding the Parliament House building and the compound were handwritten.

4.(i) So far, about the incident and the preliminary investigations at the scene of occurrence regarding which there is practically no dispute. We shall now narrate briefly the further factual details as unfolded by the prosecution:

(ii) While investigations were on at the spot, PW20 came to the Parliament Complex and met PW1. PW20 provided the first leads to the investigating officials by informing PW1 that he had sold the Ambassador car used in the attack (DL 3C J 1527) on 11.12.2001. He had come to the spot after seeing the said car on the television screen. PW20 had brought with him a delivery receipt dated 11.12.2001, photocopy of the identity card of one Ashiq Hussain etc. PW20 identified the deceased terrorist (Mohammad) at Gate No.1 as being the said Ashiq Hussain who had purchased the car.

(iii) Inspector Mohan Chand Sharma of special cell,  PW66 undertook the investigations pertaining to the mobile phones. Phone call details were obtained and analysed from the respective cellular mobile service providers. Analysis of the call records indicated that the number 9811489429 which was found on the I.D. cards, (subsequently discovered to be that of the accused Afzal) appeared to be integrally connected with the deceased terrorists and this number had been in frequent contact with the cell phone No. 9810693456 (recovered from the deceased terrorist Mohammad at Gate No.1) continuously from 28.11.2001 till the date of the attack. It was further revealed that this number of Afzal, namely, 9811489429 was in contact with the above cell phone of Mohammad, just before the incident i.e. at 10.40 a.m., 11.04 a.m. and 11.22 a.m. It was also ascertained that the said number of Afzal was activated only on 6.11.2001 close to the attack.

Further analysis of the cell phone call records showed that another cell phone number i.e. 9811573506 (subsequently discovered to be that of Shaukat and recovered from the 4th accused Afsan Guru) appeared to be in close contact with Afzal's number namely 9811489429 and these numbers were in contact with each other a few minutes before the attack on the Parliament commenced. It was also found that the said number of Shaukat was activated only on 7.12.2001 just a week prior to the attack. An analysis of the call records relating to Shaukat's mobile phone further revealed that soon after the attack i.e at 12.12 hours, there was a call from Shaukat's number to the cell phone number 9810081228 (subsequently discovered to be that of SAR Gilani) and there was a call from Gilani's number to Shaukat's number 10 minutes later. Moreover, it was ascertained that Gilani's number was in constant touch with the other two accused namely Shaukat and Afzal. It transpired that Afzal's cell phone bearing number 9811489429 was reactivated on 7.12.2001 and the first call was from Gilani's number.

With the recoveries of the cell phones and SIM cards and on an analysis of the details of phone numbers noted on the slips of papers in the light of the call records, the investigation narrowed down to three numbers, namely, 9811489429, 9811573506 and 9810081228 which belonged to Afzal, Shaukat and Gilani respectively. It was also found that the first two numbers were cash cards and hence the details regarding their ownership were not available. However, as regards 9810081228, the information was received from the service provider (AIRTEL) that SAR Gilani with the residential address 535, Dr. Mukherjee Nagar, Delhi was the regular subscriber.

PW66 then took steps on December 13th for obtaining permission from the Joint Director, I.B. as per the requirements of Indian Telegraph Act for keeping surveillance and tapping of the mobile phone Nos.9811489429, 9811573506 and 9810081228. On 14th December, at 12.52 hours, an incoming call to Gilani's No. 9810081228 was intercepted by S.I. Harender Singh (PW70). The call was in Kashmiri language. A Kashmiri knowing person (PW71) was requested to interpret the call recorded on the tape. He translated the call in Hindi which was recorded in Ext. PW66/4. That was a call from the brother of Gilani which was made from Srinagar. On the same day, at 8.12 P.M. a call was intercepted on the number 9811573506 which disclosed that one woman was talking in a state of panic to a male person whom she addressed as Shaukat. This conversation was transcribed by PW70 as per PW 66/3. The subsequent forensic analysis revealed that the male voice in the conversation was of the accused Shaukat Hussain and that the female voice was that of his wife, accused No.4 who was the recipient of the call. The call came from Srinagar. Both the intercepted conversations were analysed and considered by PW 66 (Inspector M.C. Sharma) at about 10 P.M. on 14th December. PW 66 resultantly drew an inference that the persons who were conversing on the two mobile phones were having knowledge about the attack on Parliament and that two persons namely, Shaukat and Chotu who were connected with the case were in Srinagar. The calling No. 0194 492160 was sent to the Central Agency of Srinagar Police for surveillance.

(iv) The next move was to arrest Gilani, which according to the prosecution was at about 10 A.M. on December 15th when he was entering his house at Mukherjee Nagar. Shri Gilani is alleged to have made disclosures to the investigating agency, the contents of which were recorded subsequently as Ex. PW 66/13. The disclosure statement implicated himself and the other accused in the conspiracy to attack the Parliament. According to the prosecution, he disclosed the facts on the basis of which further investigation was carried out, certain recoveries were effected and discovery of facts took place. The identity of the deceased terrorist Mohammad and others, the part played by Shaukat and Afzal and other details are said to have been given by him. According to the prosecution, Shri Gilani then led the Investigating Officer to the house of Shaukat which was also located at Mukherjee Nagar. The 4th accused Afsan Guru- the wife of Shaukat was found there with cell phone No. 9811573506. The search of the premises resulted in the recovery of another cell phone 9810446375 which was in operation from 2nd November to 6th December. Accused Navjot, on interrogation, disclosed that Mohammad (deceased terrorist) gave Rs. 10 lac and laptop computer to Shaukat and asked him to go to Sri Nagar in the truck along with Afzal. The truck was registered in her name. The disclosure statement of Navjot is Ex.PW66/14. According to the prosecution, she was arrested at about 10.45 a.m. on 15th December. The truck number given by her was flashed to Srinagar. Srinagar police was successful in apprehending the two accused Afzal and Shaukat while they were in the truck belonging to Navjot. On their pointing out, the laptop computer and an amount of Rs. 10 lac were recovered from the truck by the SDPO, Srinagar (PW61). A mobile handset without any SIM card was also found. It transpired that this hand set was used in the operation i.e. No. 9811489429 which established contacts with deceased terrorists minutes before the attack. Mohd. Afzal and Shaukat Hussain, who were arrested by the Srinagar Police at about 11.45 A.M., were brought to Delhi in a special aircraft and were formally arrested in Delhi. The investigation was handed over the PW76 (Inspector Gill of Special Cell) on 16th December.

(v) It is the case of the prosecution that on interrogation, they made disclosure statements (Ex.PW 64/1 and PW 64/2) in relation to their role in the conspiracy. On December 16th, Afzal and Shaukat led the investigating team to the various hideouts, viz., Indira Vihar and Gandhi Vihar where the terrorists stayed. On the search of these places, the police recovered chemicals, prepared explosives, detonators, gloves, mixer grinder, motor cycles- one belonging to Shaukat and the other purchased by the deceased terrorist Mohammad from PW29 which was allegedly used for reconnaissance (reccee).

On December 17th , the investigating officer took Mohd. Afzal to the mortuary at the L.H. Medical College Hospital where Afzal identified the bodies of the five deceased terrorists as Mohammad (dead body found at Gate No.1), Raja, Rana, Hamza (dead bodies found at Gate No.9) and Haider (dead body found at Gate No.5). From December 17th to December 19th, Afzal led the police to various shops from where the chemicals and other materials required for preparing explosives were purchased and also the shops from where red light found on the seized car, motor cycle, dry fruits, mobile phones etc. were purchased. From December 17th onwards, the laptop was analysed by the IO with the assistance of an expert- PW72. PW72 submitted a report narrating the results of his examination. The laptop was also sent to BPR&D Office in Hyderabad and another report from PW73 was obtained. The forensic analysis revealed that the documents found at the spot with the deceased terrorists including various identity cards and sticker of the Home Ministry, were found stored in that laptop.

(vi) On 19th December, the important development was that the provisions of Prevention of Terrorism Ordinance were invoked and the offences under the said Ordinance were also included in the relevant columns of crime documents. According to the prosecution, this was done after due consideration of the material collected by then and upon getting definite information about the involvement of a banned terrorist organization- Jaish-e- Mohammad. The investigation was then taken over by the Assistant Commissioner of Police Shri Rajbir Singh (PW80). He recorded a supplementary disclosure statement being Ext. PW64/3.

(vii) On the same day i.e. 19th December, there was another crucial development. According to the prosecution, the three accused: Afzal, Shaukat and Gilani expressed their desire to make confessional statements before the authorized officer.

On 20th December, PW80 made an application before the DCP (Special Cell) (PW60) for recording the confessional statements of these three accused. PW60 gave directions to PW18 to produce the three accused at the Officers Mess, Alipur Road, Delhi. On the next day i.e. 21st December, the accused Gilani was first produced before PW60 at the Mess building. However, Shri Gilani refused to make a statement before PW60 and the same was recorded by him. Thereafter, Shaukat Hussain was produced before PW60 at 3.30 P.M. Shaukat Hussain expressed his desire to make the confessional statement and the same was recorded by PW60 in his own handwriting which according to him was to the dictation of Shaukat. The confessional statement recorded purportedly in compliance with Section 32 is marked as Ex. PW60/6. The other accused Afzal was also produced before PW60 at 7.10 P.M. on 21st December. After he expressed the desire to make the confession, his statement was recorded by PW60 in his own handwriting allegedly as per the dictation of the said accused. This is Ex.PW60/9. PW80 obtained copies of the confessional statements in sealed envelopes. In substance, both Afzal and Shaukat confessed having been parties to the conspiracy to launch an attack on the Parliament House. The details of the confessions will be adverted to later.

On 22nd December PW80 produced the accused persons before the Addl. Chief Metropolitan Magistrate (PW63) in compliance with Section 32 of POTA. The learned Magistrate conducted the proceedings in respect of each of the accused persons in order to satisfy himself that the statements recorded by PW60 were not the result of any inducements or threats. No complaint of any such threat or inducement was made to PW63. Shaukat Hussain and SAR Gilani were remanded to judicial custody on 22nd December itself. However, the police custody of Mohd. Afzal was allowed for the purpose of conducting certain investigations in the light of the supplementary disclosure statement made by him to PW80.

(viii) On 4.5.2002 sanction was accorded by the Lt. Governor of Delhi in view of the requirements of Section 50 POTA and Section 196 Cr.P.C. Sanction was also accorded by the Commissioner of Police on 12th April for prosecution under Explosives Substances Act. On conclusion of the investigations, the Investigating Agency filed the report under Section 173 Cr.P.C. against the four accused. By the time the charge sheet was filed and the charges were framed, the Prevention of Terrorism Act, 2002 was enacted and brought into force with effect from 28th March, 2002. By the same Act, the Prevention of Terrorism (2nd) Ordinance, 2001 was repealed subject to a saving provision. The charges were framed on 4th June, 2002 and the trial before the designated Judge commenced on 4th July. An Advocate was nominated by the court at State's expense for providing legal assistance to the accused Afzal as he did not engage any counsel on his own. Subsequently, the counsel was changed.

Before the trial started, an order was passed by the learned designated Judge that certain documents viz. post-mortem reports and documents relating to recoveries of arms, explosives etc. from the scene of occurrence shall be treated as undisputed evidence in view of the consent given by the accused persons and there was no need for formal proof of those documents. After the trial commenced, an application was moved on behalf of Gilani, Shaukat and Navjot challenging the admissibility of the intercepted conversations in evidence. The learned Judge of the designated Court rejected their contention by his order dated 11.7.2002. Assailing this order, the accused moved the High Court. The High Court set-aside the order of the designated court and allowed the applications of the accused. The SLP filed against that order was disposed of by this Court on 9.5.2003 during the pendency of the appeals in the High Court holding inter alia that the order passed by designated Judge was in the nature of an interlocutory order against which appeal or revision was barred under Section 34 POTA. Without expressing any opinion on the merits, the parties were permitted to urge the point at issue before the Division Bench of the High Court. The decision is reported in (2003) 6 SCC 641.

The verdict of the trial court was given on 16th and 18th December, 2002. The details of conviction and sentences have already been referred to. As noticed earlier, the High Court allowed the appeals of A3 and A4 and dismissed the appeals of A1 and A2 and their death sentences were confirmed.