Dar Vs. State of J & K  INSC 514 (21 July 2010)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 535 OF 2009 Mohd. Ayub Dar ........Appellant Versus State of J&K
Appellant Mohd. Ayub Dar S/o Abdul Ahad - Original accused no.1
challenges his conviction for the offence punishable under Section 3 (3) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (In short "TADA
ACT"), as also for the offence punishable
Section 302 of the RPC. Originally, the five accused persons were tried in
respect of murder of Mirwaiz Moulvi Farooq, which took place on 21.5.1990, at
about 11 O' clock in the morning. Accused no. 2 Abdul Rehman Shigan and accused
no.3 Abdulla Bangroo expired during pendency of the trial, while the other two
accused persons namely Javed Ahmed Bhat @ Ajmal Khan @ Ditta s/o. Habibulla
Bhat and Zahoor Ahmed @ Bilal @ 2 Zana were untraceable. Thus, out of the five
accused persons, we are concerned only with accused no.1 (appellant herein)
Mohd. Ayub Dar S/o Abdul Ahad.
It so happened that on 21.5.1990, at about 11 O' clock in the
morning, three unknown terrorists entered into the house of Mirwaiz Moulvi
Farooq with the intention of killing him and Moulvi Farooq was severely injured
by gun-shot. He, ultimately, succumbed to the injuries in Soura Hospital,
Srinagar, and, therefore, the offence registered u/s. 307 of the RPC originally
was converted into the offence u/s. 302 of the RPC on the same day. The initial
investigation was done by Police Station, Nageen, which was thereafter
transferred to CBI under the orders of the Government of India vide
Notification No.228/3/90-AVD.II, dated 11.06.90. The house of Moulvi Farooq was
in New Colony, Nageen, Shrinagar, known as `Mirwaiz Manzil', wherein one small
doubled storeyed building was constructed for the purpose of residential Office
of Mirwaiz. This small Office had two rooms on the ground floor and one big
hall on the first floor. In one of the two rooms; on the ground floor, the
Personal Assistant of Mirwaiz Moulvi Farooq used to sit and the second room was
adjacent to the said room, which had office of Mirwaiz Moulvi Farooq. The
entrance to the Office of Mirwaiz 3 Moulvi Farooq was from the room of his
It was the prosecution case that, due to popularity of Mirwaiz
Moulvi Farooq, two terrorists outfits namely Jamt-e-Islami in general and
Hizbul-Mujahideen in particular were apprehensive that Moulvi Farooq would
eventually assume political leadership of Kashmir. They also viewed him as an
agent of Government of India working against the interests of militant groups.
in the year 1990 itself, in the month of April, accused Abdulla Bangroo, Javed
Ahmed Bhat @ Ajmal Khan @ Bitta and Mohd. Ayub Dar @ Ishfaq - present
appellant, who belong to Hizbul Mujahideen, entered into a criminal conspiracy
to eliminate Mirwaiz Moulvi Farooq. Accused Abdulla Bangroo, who was then
heading Hizbul Mujahideen, instructed Javed Ahmed Bhat @ Ajmal Khan and Mohd.
Ayub Dar @ Ishfaq - present appellant to plan elimination of Mirwaiz Moulvi
Farooq. Javed Ahmed Bhat @ Ajmal Khan was then working as an Area Commander of
Hizbul-Mujahideen in the downtown area of Srinagar;
the appellant/accused was working as a Group Commander in that very area. Later
on, Abdul Rehman Shigan @ Inayat and Zahoor Ahmed @ Bilal @ Zana also joined
the conspiracy. It came out in the investigation that, in the second week of
May, 1990, under the 4 instructions of Javed Ahmed Bhat @ Ajmal Khan, Mohd. Ayub
Dar @ Ishfaq - present appellant and Abdul Rehman Shigan @ Inayat had visited
the residence of Moulvi Farooq at Nageen, Srinagar and had requested him for
financial help to their militant organization i.e. Hizbul Mujahideen. Moulvi
Farooq had agreed to help them and had asked them to meet after 2/3 days during
the morning hours. Thereafter, two accused surveyed the area as per their plan
and informed the details to Javed Ahmed Bhat @ Ajmal Khan. It was on 21.05.1990
that the three accused namely Mohd Ayub Dar @ Ishfaq (present appellant), Abdul
Rehman Shingan @ Inayat and Zahoor Ahmed @ Bilal @ Zana armed with loaded
pistol visited the `Mirwaiz Manzil' at Nageen. Accused Javed Ahmed Bhat @ Bilal
had instructed the appellant that, out of the three accused persons, Zahoor
Ahmed @ Bilal would fire on Moulvi Farooq and the remaining two accused persons
namely Ayub Dar i.e. present appellant and Abdul Rehman Shingan were to provide
cover to Zahoor Ahmed @ Bilal. As per the plan, they all reached the gate of
Mirwaiz Manzil and met Maqbool Shah, the gate-keeper (PW-16) and informed him
that they wanted to meet Moulvi Farooq. Maqbool Shah (PW-16) then asked Gulam
Qadir Sofi, the gardener, to take them to the Personal Assistant as he himself
was going to the market.
Accordingly, the gardener - Gulam Qadir Sofi took the three to the Personal
Assistant namely Saidur Rehman (PW-17), who asked them about their names and
one of them disclosed his fake name as Gulzar Farooq r/o. Batmaloo. That name
was written by the Personal Assistant on a slip of paper and the said slip was
sent inside the room of Moulvi Farooq through the gardener Gulam Qadir Sofi.
After sometime, Moulvi Farooq called the three accused inside the Office, on
which Zahoor Ahmed @ Bilal entered the room of Moulvi Farooq and the remaining
two accused persons including the present appellant took up position in the
PA's room. On entering the room of Moulvi Farooq, Zahoor Ahmed @ Bilal fired
several rounds on Moulvi Farooq from his pistol and immediately, accused Inayat
also fired from his pistol in the air while coming out of PA's room, which hit
the outside wall of the Office. On hearing the sound of firing, the gardener
came inside the Office and tried to catch hold of Ishfaq, who was trying to
all the accused persons escaped giving a push to the Gardener Gulam Qadir Sofi.
Accused Bilal also tried to run away, but he was caught by Gulam Qadir Sofi.
There was a scuffle between the two, in which Bilal sustained an injury below
his right eye. Later, after firing one round from his pistol, Bilal also 6
managed to escape. The accused persons ran towards Kashmir University, who were
followed by Gulam Qadir Sofi upto the main road and near the University Gate,
the assailants ran towards Soura through the University compound and reached
Chhatargaon in the afternoon of 21.05.1990. They then reported killing of
Moulvi Farooq to Abdulla Bangroo and Ajmal Khan. All the three accused persons
were directed by Abdulla Bangroo and Ajmal Khan to go underground for sometime.
The prosecution urged that appellant Mohd Ayub Dar @ Ishfaq had
visited Pakistan, where he was trained in the handling of firearms and
explosives. He was involved in a number of other terrorists' cases and was
arrested in Delhi by the Delhi Police on 6.5.1991. He was further arrested in
the present case on 15.6.1991 by CBI. When his statement was recorded u/s. 15
of the TADA Act, he confessed the aforesaid crime and disclosed the names of
other two assailants namely Abdul Rehman Sigan @ Inayat and Zahoor Ahmed @
Bilal. He also confessed regarding involvement of accused Abdulla Bangroo and
Ajmal Khan in the crime.
Accused Abdul Rehman Singan @ Inayat, who was in the judicial
custody in a case of CID, Srinagar, was also arrested in this case on
20.9.1990. He also 7 confessed the guilt and corroborated the statement made by
the present appellant.
After he was fired, injured Mirwaiz Moulvi Farooq was removed to
Sher-e-Kashmir Institute of Medical Sciences, Soura by Manzoor Ahmed and Saffad
Ahmed, who were his brothers-in-law and Nazir Ahmed Dar, a servant.
examined by Dr. Abdul Mazid and was immediately operated thereupon. Dr. Afzak
Wani, Head of the Department of Neurosurgery, Institute of Medical Sciences,
Soura was also consulted. But, at about 12.30 P.M., Mirwaiz Moulvi Farooq
succumbed to the injuries in the hospital. Injury Report was prepared by Dr.
Abdul Mazid. However, post mortem on the dead body could not be carried out as
a very serious law and order situation ensued owing to death of Moulvi Farooq.
A huge mob got collected at the spot and they demanded that the dead body of
deceased be handed over to them without the post-mortem being carried out. The
dead body was, ultimately handed over to the followers of Moulvi Farooq and the
last rites were performed on the next day. His wearing apparels were seized and
were referred to the Central Forensic Science Laboratory (C.F.S.L.) along with
the bullets and empty cartridges seized from the place of occurrence. The
C.F.S.L. opined that the wearing apparels were having holes corresponding to
the 8 injuries of the deceased. It was further opined that the empty fired
cartridges which were seized, as also the bullets seized from the place of
occurrence were fired from two types of small arms. The facts suggested that
the present accused/appellant and Abdul Rehman Shigan @ Inayat had committed an
offence u/s. 302 r/w.
34 of the RPC, while the other accused persons namely Abdulla Bangroo @ Khalid,
Javed Ahmed Bhat @ Ajmal Khan along with Mohd. Ayub Dar @ Ishfaq (present
appellant) and Zahoor Ahmed @ Bilal @ Zana and Abdul Rehman Shigan @ Inayat had
committed an offence under Section 3 (3) of the TADA Act, 1987.
Under the above circumstances, the appellant/accused alone came to
be charged. About 24 witnesses came to be examined and the confessional
statement recorded by A. K. Suri (PW-2), who was then working as S.P., CBI,
came to be relied upon by the prosecution. The statement came to be recorded on
27.6.1991 after the accused/appellant was brought from Delhi to Srinagar.
The trial Court considered the evidence of all the witnesses
individually. The Court also took notice of the argument that copy of the First
Information Report was not sent to the Court and came to the conclusion 9 that
the contention raised by the defence was not correct. The Court further came to
the conclusion that there was nothing suspicious regarding non-sending of the
First Information Report. The trial Court also rejected the argument of the
defence that there were inconsistencies and contradictions in the evidence of
prosecution witnesses inter-se. It pointed out that the minor discrepancies
could not and did not matter in this case. It was, in fact, observed that the
defence was not able to point out any material contradiction in the evidence of
witnesses during the course of arguments.
Court came to the conclusion that non-performance of post-mortem did not matter
as it was clear that Moulvi Farooq died due to gun-shot injuries.
the trial Court accepted the evidence of Dr. Mohd. Afzal Wani (PW-6).
Ultimately, the trial Court also accepted the confession given by the
upon the evidence, the trial Court convicted the accused/appellant for the
offence u/s. 3 (3) of the TADA Act and u/s. 302 of the RPC. After hearing the
accused person on the question of sentence, the trial Court awarded
imprisonment for life with a fine of Rs.6,000/- and in default of payment of
fine, the appellant was directed to suffer further imprisonment for six months
for the offence u/s. 302 of the RPC. The appellant is 1 0 also sentenced to
undergo imprisonment for a period of five years and to pay a fine of Rs.5,000/-
u/s. 3(3) of the TADA Act. In default of making the payment of fine, the
accused was directed to undergo imprisonment for six months.
Lastly, the trial Court, following Section 374 of the J & K
Code of Criminal Procedure, 1989, ordered that the imprisonment for life would
be subject to confirmation by this Court since this Court is the appellate
Court. It is this judgment which is being challenged before us.
Shri Sushil Kumar, learned Senior Counsel, initially raised a preliminary
argument to the effect that the life imprisonment ordered by the trial Court
was liable to be confirmed by the High Court and the same not having been done,
this Court could not look into the question of legality of the life
is based on Section 374 of the Criminal Procedure Code as applicable in the
State of Jammu and Kashmir, under which even a life imprisonment ordered by the
Court in that State is required to be confirmed.
argument is, however, not correct inasmuch as it is specifically provided in
Section 14 (3) of the TADA Act that the Designated Court shall, for the purpose
of 1 1 trial of any offence, have all the powers of a Court of Session and
shall try such offences as if it were the Court of Session so far as may be in
accordance with the procedure prescribed in the Code for the trial before the
Court of Session. The word "Code" is defined u/s. 2 (b) of the TADA
Act, wherein is it provided that the word "Code" means the Code of
Criminal Procedure, 1973 (2 of 1974). Therefore, it is clear that the trial has
to be conducted in accordance with the Criminal Procedure Code, 1973 and not in
accordance with the Criminal Procedure Code as applicable to the State of Jammu
and Kashmir. U/s. 19 (1) of the TADA Act, an appeal is provided against the
judgment, sentence or order, not being an interlocutory order by a Designated
Court to the Supreme Court of India. Sub-section (2) thereof provides that,
except the cases mentioned under sub-section (1), no appeal or revision shall
lie to any Court from any judgment, sentence or order including an
interlocutory order of a Designated Court. Section 25 of the TADA Act provides
that the provisions of the TADA Act or any Rule thereunder or any order made
under any such rule shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the TADA Act or in any
instrument having effect by virtue of any enactment other than this Act. In
view of 1 these provisions on which 2 Mr. Rawal, the learned Additional
Solicitor General of CBI, relies upon, there will be no question of
applicability of Section 374 of the Criminal Procedure Code as applicable to
the State of Jammu and Kashmir. Realizing this, Shri Sushil Kumar, learned
Senior Counsel did not seriously press this objection, though considerable
arguments were tendered before the Court earlier. In that view of the matter,
the first question raised by learned Senior Counsel Shri Sushil Kumar is
decided against the defence.
The main thrust of the argument of the learned Senior Counsel
appearing on behalf of the appellant was that the prosecution has failed to
prove the offence u/s. 302 of the RPC independently of the confession. It was
urged that, if the confession is ignored, then there would remain no material
to involve the accused. It is pointed out that the accused also stood convicted
for the offence u/s. 3 (3) of the TADA Act, wherein he was awarded a punishment
of five years and to pay a fine of Rs.5,000/- in default to suffer further
imprisonment for six months. It is pointed out that the accused had already
served out the sentence of five years. The learned Senior Counsel, therefore,
did not seriously challenge his conviction u/s. 3 (3) of the TADA Act and 1
instead, concentrated on the 3conviction for the offence u/s. 302 of the RPC.
It was pointed out to us that there was no material to hold that the accused
ever conspired or was a part of conspiracy to commit murder of Moulvi Farooq.
The learned Senior Counsel urged that there was practically no evidence and the
oral evidence tendered on behalf of the prosecution to prove the guilt of the
appellant for both the offences was hopelessly vague and could not have been
relied upon by the trial Court to convict the appellant of both the offences.
learned Senior Counsel took us through the evidence of prosecution witnesses
and urged that the evidence of the witnesses is wholly unreliable and took the
prosecution nowhere. By way of additional submission, the learned Senior
Counsel urged that the trial Court erred in relying upon the confession
recorded by A. K. Suri (PW-2) as the said confession could not have been
accepted to be a genuine confession. It was urged that the said confession was
neither in the language of the accused nor the accused had ever made any such
confession, much less before the witness. It was then pointed out that the
original of the Confession made was also not available nor was placed before
the Court. It was further suggested that the oral evidence runs counter to the
statement made in the confession and 1 therefore, the confession was
Before considering the confession allegedly made by the appellant,
we would take the stock of criticism made against the oral evidence. But even
before that, to put the record straight, we would choose to place the clear-
cut language of Section 3 (3) of the TADA Act, for which the appellant stands
convicted. Section 3, sub section (3) of the TADA Act provides as under :
conspires or attempts to commit, or advocates, abets, advises or incites or
knowingly facilitates the commission of, a terrorist act or any act preparatory
to a terrorist act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for life
and shall also be liable to fine."
We have carefully examined the appeal memo filed u/s. 19 of the
TADA Act. Very strangely, we do not find any challenge to the conviction u/s. 3
(3) of the TADA Act. All through, the challenge is to the conviction for the
offence u/s. 302, as also to Section 120-B r/w. Section 3 of the RPC.
Conviction u/s. 3(3) of the TADA Act was not seriously challenged by Shri
Sushil Kumar, learned Senior Counsel; perhaps, because the accused has already suffered
more than five years of imprisonment, which was the sentence awarded to him for
It is in the backdrop of this factual situation that the oral
evidence would have to be considered.
5 It was not seriously contested that Moulvi Farooq died of bullet
injuries and that this was a case of homicidal death. The first relevant
witness amongst those who were present at the time of incident is Nazir Ahmed
Dar S/o Mohd. Abdulla Dar (PW-11). He was a family servant in the house of Moulvi
Shafat, who was the brother-in-law of Moulvi Farooq. He heard the sound of fire
and went to see as to whether the sound of fire had come. He saw two persons
jumping from the southern wall of Moulvi Farooq and going towards the southern
in arranging a vehicle and admitting Moulvi Farooq in the hospital. He was
declared hostile as far as he failed to identify the accused. However, he
admitted that he did not remember whether even the third person had also jumped
from the wall. He also did not remember whether he has given description of the
first man whom he saw jumping over the wall. He categorically suggested that
the accused person in the Court was not there. His evidence is, therefore, of
no consequence for the prosecution. The evidence of Zahid Ali Lone (PW-13), S/o
Habib-ullah Lone, an Advocate by profession, is also of no consequence as he
refused to even identify the accused and asserted that he did not see the
accused. Mohd. Yasin s/o. Misri Khan (PW-14) was on the guard duty at the
bungalow of Moulvi Farooq. 1 6 In his presence, empty cartridge cover was
seized from the courtyard of Moulvi Farooq by one Gunwant Singh. The witnesses
so far considered by us only go to show that Moulvi Farooq had died homicidal
death due to fire and some three persons had entered his house on that day, who
The evidence of Salam-id-Din S/o Mohd. Maqbool Shah (PW-15) is
also of no consequence as he had neither seen the deceased nor the assailants.
He only came to know about death of Moulvi Farooq. This witness was the Public
Relations Officer of Moulvi Farooq. Mohd. Maqbul Shah S/o Khazir Muhammad Shah
(PW-16) was the peon of Moulvi Farooq, but he was not on the spot when the
incident took place. Much was made of the evidence of this witness that he had
not identified the two persons who had come to Moulvi Farooq in the morning.
However, it is clear that the two persons that he was speaking about could not
have been the accused persons as they had come at 9 O'clock to Moulvi's place
and it is nobody's case that the accused persons had come at 9 O' clock in the
morning. He had acted as a panch witness also. Saidur Rehman s/o. Amir Din
(PW-17) was specifically referred by Shri Sushil Kumar, learned Senior Counsel.
This witness was his Public Relations Officer (PRO)-cum-Personal Assistant
(PA). According to 1 7 him, after the death of Moulvi Farooq, he continued to
work as a P.R.O. of his son Moulvi Umar Farooq. He claimed that, on the fateful
day, his peon informed that three persons wanted to meet Moulvi Saheb. They
were brought in and were made to sit in the Office. Their names were asked and
one of them stated his name to be Gulzar Farooq. He did not remember the other
that he made the name slip of Gulzar Farooq with his own pen and sent the same
to Moulvi Saheb. The said slip (Exhibit D-16) was shown to him. He identified
the same. He also identified his own signature.
to him, all the three persons went inside. He was engaged in conversation on
telephone. Then he heard the sound of fire and suddenly the door of Moulvi
Saheb's room opened and those persons fled away. He saw that Moulvi Farooq was
lying in a pool of blood. He then spoke about Moulvi Farooq being transfered to
the hospital and his death. He has confirmed that, while fleeing away, he saw a
revolver in the hand of one of the boys. He also confirmed that the peon Gulam
caught hold of one of the men, but he got away while fleeing himself. Even this
witness has not identified the accused/appellant in the Court. He specifically
contended that, since the incident was 13 years old, it would be difficult for
him to identify any of the three 1 8 persons. He specifically stated that there
was nobody amongst them present in the Court. In fact, much could have been
done by cross-examining this witness by the prosecution for the reasons
unknown. Even that was not done.
Amjad Parvez Munir was examined as PW-18 who spoke about the
seizures and the panchas. PW-19 is Javaid Firdous S/o Alam Din, who is resident
of Lucknow and was a Professor working in the Kashmir University. There is
nothing that he has spoken about the accused. In fact, we do not know why he
was cross-examined. Same is the story about Shafat Ahmad (PW-20) S/o Late
Moulvi Gulam Rasool, who is brother-in-law of deceased Late Moulvi Mohd.
Farooq. He also did not see any man, though he heard the noise of fire-shots.
His evidence also would be of no consequence except to prove that Moulvi Farooq
was shot at and that he died in the hospital. Mohd.
s/o. Gulam Hussain (PW-21) is another witness who is a witness on seizure of
cover of bullet from the spot. Nothing has come out in his cross-examination.
Kumar Jha is another witness who is posted as a Dy.S.P. CBI SFC II. He had
acted as an Investigating Officer. He claimed to have received the FIR copy on
12.6.1990. He spoke about the murder having been admitted by Hizbul Mujahideen
organisation. He further 1 9 spoke that Late Abdullah Bangroo, Ajmal Khan,
Bilal, Ishfaq i.e. present appellant and Abdul Rehman Shigan were the accused
of murder and that they entered into conspiracy to kill Moulvi Farooq. He then
referred to the arrest made of the appellant by Delhi Police. He went to arrest
Ayub Dar/present appellant in Delhi and brought him to Srinagar on police
remand. He then asserted that, during the investigation, Ayub Dar confessed and
stated that he wanted to make statement.
then produced before the S.P. for recording his statement. He then confirmed
that the statement was then recorded by the S.P. He identified the accused as
the same person who was arrested and who gave his statement u/s. 15 of the TADA
Act, which was recorded by the S.P.
pointed out that he also got recorded statement of accused Abdul Rehman Shigan
u/s. 15 of the TADA Act as he was already arrested in some other case, in
pursuance of the request made by accused Abdul Rehman Shigan. He was
extensively cross-examined by the defence. He claimed to have received the
whole file (Exhibit D-2) from Parvaiz Mirza SHO, P.S. Nageen. He identified the
photo copy of FIR which was written in 19 lines. He also confirmed that the
copy of FIR was sent to the Magistrate. He identified the FIR. Several
inadmissible questions seem to have been asked to this witness about 2 the statements
recorded 0 u/s. 161, which are of no consequence. However, all that can be said
about this witness is that he went to arrest the accused and produced him
before the S.P. for recording his statement. There is no question asked on that
again and again come in the cross-examination that he had produced the
accused/appellant for recording his statement under the TADA Act; that the
accused/appellant was under his custody and that his statement was recorded by
the S.P. He asserted that the accused had requested him verbally for recording
his statement and he also verbally brought the request of the accused to the
attention of the S.P. According to him, the statement of accused was recorded
on 27.6.1991 when the accused was produced at 11 O'clock in the morning before
the S.P. for recording his statement. He claimed that he did not remain present
there. After his statement was recorded, the accused was taken away by this
witness. He also had collected second copy of the statement. In short, it
cannot be said that the witnesses have identified the accused as one of the
three persons who had killed Moulvi Farooq. Shri Sushil Kumar, learned Senior
Counsel, therefore, is undoubtedly right when he says that if the other
evidence is taken into account de-hors of the confession made, the 2 1
prosecution cannot claim to have proved the offence that the accused/appellant
was one of the accused persons present along with the two other accused persons
who had fired at Moulvi Farooq.
However, one thing is certain that the prosecution has been able
to prove homicidal death of Moulvi Farooq by being shot at. Prosecution has
proved that, on that day, at about 10.30, three persons had come.
gone to the room of Moulvi Farooq and had fired. It is also proved that, it is
due to those injuries that Moulvi Farooq died a homicidal death. True it is
that no post mortem was conducted; however, prosecution has given proper
explanation that the post mortem could not have been conducted due to angry
public reaction. However, in-spite of that, there is good evidence to suggest
that Moulvi Farooq died of the bullet injuries almost immediately after he was
could not have been possible unless the assailants had entered into conspiracy
to murder Moulvi Farooq. It was in pursuance of that conspiracy alone that the
assailants entered the chamber of Moulvi Farooq and fired at him. The evidence
of P.R.O. is very clear in that context. The only question to be considered is
whether this appellant was one of assailants. Seeing the prosecution evidence
as it is, if all the three accused 2 came together and 2 approached the chamber
of Moulvi Farooq and one of them fired at him, there will be no question of
only the individual liability. Everything was clear as sun-shine that three had
come not with an idea to chat with Moulvi Farooq or to seek any favour from
him, but they had come specifically with a specific design to eliminate Moulvi
Farooq. We, therefore, do not find anything wrong in the verdict of guilt given
by the trial Court so far as Section 3 (3) of the TADA Act is concerned.
However, the question would still remain as to whether the appellant/accused was
one of the assailants. That could have been proved by direct evidence firstly
or alternatively or in addition to it, by the confession statement recorded
u/s. 15 of the TADA Act. If the confession statement stands to the Acid test on
credibility, voluntariness and truthfulness, then that would be sufficient to
pin the guilt of the accused. Therefore, it is now to be examined as to whether
the trial Court was justified in relying upon the statement u/s. 15 of the TADA
Shri Sushil Kumar, learned Senior Counsel, firstly urged that the
confession was shrouded in mystery inasmuch as it was not clear as to whether
it was recorded and under what circumstances. He clearly criticized the same
saying that it could have been 2 recorded on the video tapes, 3 but was not
done. He also pointed out that the confession was not recorded in the language
of accused/appellant nor was it a true representation of what was stated. He
pointed out that it was contradictory with the oral evidence and there were
innate contradictions which went on to disprove its very credibility. Relying
on Rule 15 (2) of the TADA Act, he pointed out that it was explained or
interpreted to the maker. He further urged that the original of the confession
is not on record. It was further urged that the whole confession is destroyed
by the other evidence.
Sushil Kumar pointed out that, the confession, as it stands proved, is in
English language and there was a clear-cut admission on the part of A. K. Suri
(PW-2) that he had not explained the same to the accused.
the argument of Shri Sushil Kumar was that the confession could not have been
relied upon, insofar as the offences under the R.P.C. were concerned.
to the learned Counsel, the confession could be relied upon only for the
offences under the TADA Act.
learned Counsel heavily relied on the language of Section 15.
As against this, Shri Rawal, learned ASG urged that there was
clear-cut evidence on record that the accused spoke in English, in which language
he confessed also.
further pointed out 4 that necessary caution was administered to the accused
inasmuch as he was told that the said confession could be used in evidence
against the accused/appellant. Learned ASG further contended that necessary circumstances
were explained and signature was appended to the confession and, therefore,
there was no question of rejecting the confession. As regards the last point
urged by Shri Sushil Kumar, the learned ASG has pointed out that the question
of admissibility of confession against the offences under the RPC was no more
res-integra and was finally answered by this Court in a decision of Five Judges
Bench SCC 569]. Besides this, Shri Rawal also pointed out that the oral
evidence regarding the confession by A. K. Suri (PW-2) remained unchallenged in
the cross- examination on behalf of the defence. He also pointed out that the
confession was corroborated as the chit (Exhibit D-16) was brought on record.
He answered the criticism of the learned Senior Counsel by pointing out that
some witnesses were not examined as they were either dead or it was obvious
that they were not present at the time of incident. It is this basis that the
confession is now to be tested.
It will be better first to examine in detail the 2 oral evidence
of A.K. Suri 5 (PW-2). The said witness deposed regarding presence of the
accused in the Court on 27.6.1991 and about his making confessional statement.
The witness reiterated that the accused was asked number of questions regarding
free will on the part of accused to make a confession. He also specifically
asserted that he had informed the accused that he was not bound to make a
confessional statement and that if he makes the one, the same would be read
against him. The witness also reiterated that the accused was given time to
ponder over and even after pondering over the issue of making the confessional
statement, the accused, of his own free will, was prepared to give confessional
statement which was recorded in his own words by the witness. The witness also
identified signature of the accused. He had also produced a questionnaire and
asserted that, even after the questionnaire was given to the accused, one and
half hours' time was given to the accused to ponder over, which opportunity was
utilized by the accused. The witness first proved his writing about being
satisfied that the accused was prepared to offer confessional statement of his
own free will and then proved the statement. He also reiterated that the
accused put his signature on each and every page and after the statement 2 6
was recorded, it was read over and was understood by the accused, who, only
after accepting the same to be correct, put the signatures. The witness was
subjected to cross-examination by the defence. However, we are constrained to
observe that his cross-examination was a lackluster. Some confusion was tried
to be created regarding Exh. PWAK, a carbon copy and Exh.PWAK1 also not being
done over the original and being made over a carbon copy. However, after seeing
the documents and hearing Shri Rawal, we are convinced that there was no
confusion and the original confession as well as the preliminary documents were
made over to the Court. Some unnecessary questions were put to the effect that
whether the witness was in uniform while recording the statement. Some
insignificant circumstances were also brought that the word `voluntary' was not
written while recording preparedness of the appellant to record the confession.
He asserted that he had dispatched the confessional statement report. The last
suggestion given to the witness in the cross-examination was almost fatal to
the defence which was to the effect that he did not interpret statement of the
accused because the same was written in the language in which the accused gave
again specifically asked about his satisfaction statement being on page No.10,
to which he specifically 2 7 answered that the accused had finished his
statement at page 9 and therefore, he wrote his satisfaction at page No.10. Again,
almost at the end of the cross- examination, it has come that the witness had
taken the statement in English and when the accused was talking to the witness,
he was taking in English. In short, the whole cross-examination does not dent
the case of the defence and it can be inferred that the criticism against the
confession that it was not recorded in the language of the accused is not
justified. There is absolutely no effort made by the defence to establish that
the statement was not made in the language of the accused persons. Much was
said by Shri Sushil Kumar, learned Senior Counsel that the Original statement
is not on record. However, Shri Rawal, learned ASG painstakingly pointed out
from the record that the confession cannot be foiled on that count and the
original confession was very much available on the record.
Shri Sushil Kumar, learned Senior Counsel, had specifically raised
a question regarding witnesses Gunwant Singh and Ghulam Qadir Sofi not being
examined to corroborate any role ascribed to them. According to the learned
Senior Counsel, non-examination of Gunwant Singh and Ghulam Qadir Sofi was
extremely material and 2 8 created a dent in the prosecution story. Shri Rawal,
learned ASG pointed out that, looking at the overall evidence of the witnesses,
more particularly, all those who were present at the spot, it cannot be
gathered that Gunwant Singh was present at the time of incident.
as the evidence of Ghulam Qadir Sofi is concerned, it was pointed out by Saidur
Rehman (PW-17) that said Ghulam Qadir Sofi was already dead at the time of
trial. Therefore, the criticism levelled by the learned defence Counsel would
be of no consequence.
Shri Sushil Kumar then urged that the so-called confession given
by this appellant in other matter was disbelieved right upto the Supreme Court.
He relied NCT of Delhi [2000 (10) SCC 296]. This was also a case where the
charges were under Section 3, 4 and 5 of TADA Act alongwith Section 302 read
with Section 120 IPC.
a case where the cassette wherein the confession was recorded was destroyed.
From the second cassette, it was seen that the concerned officer had not given
any warning to the accused that he was not bound to make the statement. The
officer also had categorically admitted that no specific warning had been given
to the accused. It was on that basis that this Court did not choose to rely
upon the confession. Shri 2 9 Sushil Kumar heavily relied on this ruling and
urged to take the same course. We have already given our reasons for accepting
the confession. In that view, we cannot rely on this judgment. We are unable to
accept this contention for the simple reason that the facts of the said case in
the reported decision are neither relevant nor admissible for the present purposes.
Shri Sushil Kumar also relied on a reported decision in Prakash SCC 266]
wherein the confession was disbelieved. We do not find any similarity between
the facts in the afore- mentioned reported decision and the facts which have
come in the present matter. The confession in this case was disbelieved on
merits and it was made by the co- accused. The facts are clearly
distinguishable. The learned Senior Counsel further relied on Abdulvahab [2007
(9) SCC 293], more particularly on observations in Paragraphs 9 and 13 thereof.
However, the observations in Para 9 relate to the confession of the co-accused
and its admissibility and reliability. The Court, in fact, relied upon the
confession taking the view that there was no coercion, threat or any undue
influence to the accused. The other facts are not apposite to the controversy.
We, therefore, reject the contention of 3 the learned Senior Counsel. 0
Our attention was also drawn to the Constitution Punjab [1994 (3)
SCC 569] and more particularly, to the paragraphs 263 and 265 thereof. There
can be no question about these principles which have been suggested by way of
guidelines by this Court. In fact, at the end of the Paragraph 263 of the
judgment, the Court has recommended that the Central Government should take
note of the guidelines and incorporate them by appropriate amendments in the
Act and the Rules. We have not been pointed out any such amendments either in
the Act or in the Rules. However, when we see the guidelines laid down and
compare them with the care taken in this case about the confession, we feel
completely satisfied that the confession was properly recorded and it was also
recorded in the free atmosphere, as A.K. Suri (PW-2) had given sufficient time
to the accused for the reflection. The accused had also at no point of time
complained regarding any coercion to any authority. The defence, as is apparent
from examination of the appellant-accused under Section 313 of the Cr.P.C., is
that he had not given any statement at all. In view of this, we do not think
that the observations of this Court in Paragraphs 263 and 265 3 of the
aforementioned 1 decision would be of any consequence for the decision of this
matter. In fact, in Paragraph 406 of the judgment, this Court has spoken about
the importance of confession and the various aspects attached to it such as
appearance of objectivity and necessity of removing the suspicion and has gone
to the extent of saying that the provision itself is unfair, unjust and
unconscionable, offending Articles 14 and 21 of the Constitution of India. This
was in a minor judgment by Hon'ble K. Ramaswamy, J. Hon'ble Sahai, J., however,
in Paragraph 456, went on to observe:- "The word `offence' used in the
article should be given its ordinary meaning. It applies as much to an offence
committed under TADA as under any other Act. The word `compelled' ordinarily
means `by force'. This may take place positively and negatively. When one
forces one to act in a manner desired by him it is compelling him to do that
further observed that a confession made by an accused or obtained by him under
coercion, suffers from infirmity unless it is made freely and voluntarily. His
Lordship then found that Section 15 was violative of Articles 20(3) and 21 of
the Constitution. Again the observations, though very strongly worded, do not
become binding since constitutionality of Section 15 has been upheld by the 3 2
majority judgment authored by Hon'ble Pandian, J. We are quite mindful of the
strength of the language used in the opinions expressed by two learned Judges.
even with that, we cannot say that this confession suffers from any defects.
Similarly, our attention was also invited to a decision in State
(NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru etc. etc. [2005 (11) SCC 600]
(more particularly to para 185). This was again a judgment concerning the
terrorist attack on the Parliament of India by five fidayeen militants. It may
immediately be observed that this was not a case under TADA Act, but under the Prevention
of Terrorism Act (POTA), 2002.
heavy reliance was placed on Paragraph 185 therein, which deals with the lapses
and violations of procedural safeguards guaranteed in the statute, on account
of which the confessional statement of Afzal was not relied upon by this Court.
The learned Senior Counsel was at pains to point out that in this case also,
there were lapses and violations of procedural safeguards guaranteed in the
statute. We, however, did not find any such lapses or violations which would
affect the credibility of the confession. On the other hand, we found that the
confession was fully acceptable and reliable.
A reference was made 3 to the decision in State Ors. [1999 (5) SCC
253]. However, we must observe that the learned Senior Counsel has not, in any
manner, shown as to how any of the observations made therein apply to the
present matter. We would leave the matter at that.
As against this, Shri Rawal, learned ASG highlighted two decisions
before us, they being S.N. [2002 (9) SCC 55]. The other two decisions relied
upon etc. etc. [2001 (5) SCC 235] and Abdulvahab Abdul Majid supra). Shri Rawal
pointed out that in the decision in the confession was recorded in the police
station and as of Punjab (cited supra) were not strictly adhered to.
our attention was invited to the observations made by this Court in the
following terms:- "Therefore, merely because some of those guidelines were
not followed while recording the confessions it cannot for that reason be held
that the said confessions have lost their evidentiary value. If while recording
the 3 4 confessions the police officer had followed all those guidelines also
then that would have been a circumstance helpful in inferring that the
confessions were made after full understanding and voluntarily."
therefore, be clear, as rightly contended by Shri Rawal that merely because
guidelines in Kartar followed, that by itself does not wipe out the confession
recorded. We have already given our reasons for holding that the confession was
recorded by A.K.
(PW-2) taking full care and cautions which were required to observe while
recording the confession. In (cited supra), it has been observed in Paragraph
19 that if the confession made by the accused is voluntary and truthful and
relates to the accused himself, then no further corroboration is necessary and
a conviction of the accused can be solely based on it. It has also been
observed that such confessional statement is admissible as a substantive piece
of evidence. It was further observed that the said confession need not be
tested for the contradictions to be found in the confession of the co-accused.
It is for that reason that even if the other oral evidence goes counter to the
statements made in the confession, one's confession can be found to be
voluntary and reliable and it can become the basis of 3 the conviction. In 5
this case, there is ample corroboration to the confession in the oral evidence
as well as the documentary evidence in shape of a chit, which is referred to in
the said confession. There is a clear reference that the Personal Assistant,
who was a non-Kashmiri and kept a beard, had sent a slip inside.
that slip was found by the police, which corroborate the contents in the
confession. In our opinion, that is a sufficient corroboration to the etc. etc.
(cited supra), this Court considered the confession which was under Section 164
this case is not of much importance to us.
last referred case of Abdulvahab Abdul Majid supra), a plea was raised that
though the Chief Judicial Magistrate was readily available to record the
confession, the police officer recorded the confession himself. This Court, in
Paragraph 9 of the said judgment, observed as follows:- "The crucial
question is whether at the time when the accused was giving the statement he
was subjected to coercion, threat or any undue influence or was offered any
inducement to give any confession."
ultimately came to the conclusion that 3 6 the confession did not suffer from
these defects. In Paragraph 13 of the said judgment, the question of
availability of the Chief Judicial Magistrate was discussed. Further the Court
observed:- "Under Section 15 of the TADA, a police officer is permitted to
record the confessional statement of the accused and certain strict procedure
appellants have no case that this procedure has in any way been violated.
Merely because the confession was retracted, it may not be presumed that the
same was not voluntary."
confession was accepted by this Court and the appeal was dismissed.
All these cases suggest that the only test which the Court has to
apply is whether the confession was voluntary and free of coercion, threat or
inducement and whether sufficient caution is taken by the police officer who
recorded the confession. Once the confession passes that test, it can become
the basis of the conviction. We are completely convinced that the confession in
this case was free from all the aforementioned defects and was voluntary.
We have gone through the complete confession as was given and we
are of the clear opinion that the said confession was totally voluntary and all
the necessary precautions were taken while recording the same. We are,
therefore, of the opinion that the appellant had, 3 7 in fact, given the
confession voluntarily and he was not, in any way, compelled to give the same.
Once that position is clear, it only remains to be seen as to whether the said
confession could be relied on exclusively for proving the offence u/s. 302 of
A very substantial argument was raised before us that, considering
the language of Section 15 of the TADA Act, the said confession could have been
used only against the TADA Act offences namely Section 3 of the TADA Act which
was charged against the accused/appellant and it cannot be used for a Non-TADA
offence like Section 302 of the RPC and it could not even be read in order to
prove the said offence. This question is already settled against the defence as
we have earlier pointed out. Shri Sushil Kumar urged that we should at least
make a reference to the larger Bench as the case was not correctly decided nor
the Judgment was properly given. We are unable to accept the argument of Shri
Sushil Kumar. The aforementioned judgment is by a three Judge Bench and is
binding on us. This is apart from the fact that the facts relating to Section 3
(3) of the TADA Act and the facts relating to Section 302 of RPC are completely
inter-mixed in this matter. They are the part of the same transaction. A plain
reading of the confession clearly goes to show that the accused was 3 guilty of
conspiring or 8 attempting to commit or advocating, abetting, advising or
inciting or knowingly facilitating the commission of a terrorist act or any act
preparatory to a terrorist act. The act of killing Moulvi Farooq comes within
the definition of `terrorist act' as given in Section 2 (h) r/w. Section 3 (1)
of the TADA Act inasmuch as, in order to achieve the objectives as described in
Section 3 (1), Moulvi Farooq was put to death by firing at him. The confession
in clearest possible terms and in detailed manner shows formation of a group of
terrorists, who were in all seven in number. The confession of accused refers
to the training in the use of fire arms and his visit to Pakistan in the year
1989 by crossing the border from Chowkibal side which is on Kupwara side. The
appellant has given the whole outfit including the names of leader and other
companions and the confession also refers to the fire arms brought by the group
of terrorists from Pakistan and the training which was for bringing into effect
the terrorist activities in the Kashmir valley.
appellant then gives a graphic account of the five terrorists' action in the
years 1989 and 1990. The appellant also gives a detailed account about the
members in the group who had taken active part in those activities. The last
activity was about killing of 3 Mirwaiz Moulvi 9 Farooq on 21.5.1991. While
elaborating the 5th terrorist activity, it was confessed by the appellant that
Moulvi Farooq was considered to be an agent of the CBI and the Government of
India and two days prior to his death, one Abdulla Bangroo had ordered killing
of Mohd. Farooq. At the time when these orders were given, Ajmal Khan and the
appellant herein were with Abdullah Bangroo. It is clear from the confession
that the whole modus operandi was discussed and after discussions, the task was
given to himself, Bilal and Inayat. They had also visited the house of Moulvi
Farooq and met the Chowkidar five days prior to the incident. They again
visited the house of deceased where the appellant had a talk with deceased
Moulvi Farooq and the financial help which he had promised for, was sought. The
date and time for further meeting was decided at that time itself. He then gave
reasons for not killing Moulvi Farooq on that day itself.
The appellant, thereafter, gave a complete story as to how they
went to Moulvi's house and further that he was carrying a German pistol, Inayat
was carrying a French pistol and Bilal was carrying a Chinese pistol.
to him, it was decided that it was Bilal who was to fire on Moulvi while
appellant and Inayat were to give him protection from others. Detailed
description 4 0 is thereafter given as to how they went from Naidyar by Shikara
by giving Rs.20/- to him and how they came to Durgah Hazratbal. It has then
come in the confession that from Hazratbal they walked down to the house of Moulvi
Farooq and met the Chowkidar whom they had met earlier. A very significant fact
is then stated that, after they met the Personal Assistant of Moulvi Saheb, the
said Personal Assistant gave a slip and the Mali who had taken the chit inside
came out and informed that Moulvi Saheb was calling them inside. Therefore,
they all got up from the chair and Bilal went inside the room of Moulvi, while
the appellant and Inayat took positions and took out guns and Inayat had also
fired one round after Bilal had started firing inside Moulvi's room. The
accused had also taken active part in ordering others to put their hands up.
Thereafter, they ran away.
confirmed that his shirt was held by Gulam Qadir Sofi, but he got himself
released and ran away. The details of the act, of their movements after the act
and about the chit totally convince that this confession of the accused was not
only a voluntary confession but was truthful one. Anxiety on the part of the
appellant to given press note after the act has also figured in the confession.
It has also come in the confession of the appellant herein that the appellant
got Rs.35,000/- 4 and he, therefore, went 1 to Delhi to terrorise the Central
Government. He then also referred to his activity in Delhi and his total stay
in Delhi. It has come in the confession that their group carried out five bomb
blasts in Delhi. A graphic description thereof has also come in the confession.
It has also come in the confession that he had visited Pakistan, Lahore and
Muzzaffarabad to meet other members of the group namely Hyder, Hanif Hyder,
Nasir Khan and Yusuf Bangroo on a fake passport. The said confession also gives
details that the said passport was issued in Sikar, Rajastan with Visa of
Pakistan. He also gave details of the dress which he was wearing on the day
when Moulvi was put to death. All these details cannot be said to simply have
been imagined by A. K. Suri (PW 2) so as to include the same in the confession
of the accused. In his examination under Section 313 of the Code of Criminal
Procedure, the appellant has flatly denied of having made any statement, much
less confessional statement to Shri A.K.Suri. His answer to a question is as
was arrested by the Delhi. I didn't make any statement before Mr.Suri. Mr. Suri
has indulged in making a wrong statement. In none of the cases, I made my
statement. Mr. Suri, Company Officer of a case was a Supervising Officer.
Whatever used to come in his heart, he used to do that. He was conducting all
proceedings at Delhi. "
4 2 The
afore-cited answer suggests that the appellant, at no point of time, had ever
made any statement to Shri A. K. Suri either in Delhi or in Srinagar. Very
strangely, however, in Ground A of the appeal, a portion of confessional
statement is quoted as under:
came out of P. A.'s room and had also fired one round as Bilal started firing
inside Moulvi's room. I had also taken up the position told the occupant of the
P.A.'s room to hands up. "
on this, the ground further says as under:
a conviction and sentence is prima facie wrong as the appellant at the best
could be held guilty of abetting the crime of murder and not committing murder.
the life sentence imposed upon him under Section 302 RPC is wrong in law.......
In view of the above, it is clear that the appellant herein on one
hand has chosen to rely upon a part of the confession and on the other hand, he
asserts that he had, at no point of time, made any confessional statement. We
do not wish to rely on this circumstance.
we have made mention of it only to show hollowness of defence on the part of
otherwise, we are fully satisfied that the confession was indeed made by the
appellant and the details given in the confession and the meticulous planning
that went behind committing murder of Moulvi Farooq, which has been reflected
in the confession, not 4 3 only render it voluntary, but truthful also. We are
thoroughly convinced that this confession is not only a good, voluntary and
truthful confession but a reliable one also and the trial Court has committed
no mistake whatsoever in relying upon the said confession. Once we accept the
confession made u/s. 15 of the TADA Act, there is no necessity of any other
evidence being required. A very halting argument was made before us that the
charge was only for the conspiracy and it was clear that the accused was
convicted for the offence u/s. 302 of RPC simplicitor. We do not think that
such an argument can be made when the appellant has taken part in the
conspiracy. The way the appellant himself has worked in the success of the
conspiracy, the way he has handled the guns and accompanied two other
assailants to the house of Mirwaiz Moulvi Faooq and the manner in which the
plan was executed convince us that the order is absolutely correct. We have not
been able to see nor the learned Senior Counsel appearing on behalf of the
appellant is able to point out any prejudice being caused on account of defect
of charge, which question was not even argued before the trial Court. We do not
find any merit in the instant appeal and proceed to dismiss the same.
Consequently, the appeal is dismissed.
4 4 ................ J. [V. S. Sirpurkar]
.........................J. [Dr. Mukundakam Sharma]
July 21, 2010.