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Judgment
Anil Kumar, J.—The State has sought leave to appeal against the judgment dated 8th January, 2010 passed by the Additional Sessions Judge-II, New Delhi in titled State v. Hamid Hussain and Ors. S.C. No. 178/2005 arising from FIR No. 40/2005, PS Special Cell, u/s 121/121-A/122/123 & 120B IPC and u/s 4/5 of Explosive Substance Act and Sections 18/19/20/23 of Unlawful Activities (P) Amendment Act and also in FIR No. 132/2004, PS Special Cell u/s 379/411 of IPC acquitting all the Respondents/accused persons of the various offences for which the charges were framed against them, however convicting the Respondents No. 1 & 2 only u/s 5 of Explosive Substances Act read with 120-B of IPC and Section 18 and 23 of the Unlawful Activities (P) Act 2004 read with 120-B of IPC.
Petitioner''s case in brief is that during the first week of February 2005, vital information was received that the banned terrorist organization called Laskhkar-e-Tayyaba (LeT) has set up base in Delhi. It was alleged that one Hamid Hussain resident of Seelampur Delhi is working for the banned organization. It was also learnt that Hamid Hussain was frequently visiting Kashmir to get arms, ammunitions and explosive substances and was also getting instructions from the LeT commanders. He was visiting different parts of the country to spread the network of LeT. On receipt of this information, a team under the supervision of Shri Rajbir Singh ACP, comprising of Insp. Mohan Chand Sharma, Insp Balrish Dutt, SI Sanjay Dutt, SI Rahul, SI Ramesh Lamba, SI Subhash Vats, SI Rajendra Singh Sehrawat, SI Kailash Bisht, SI Jai Kishan and SI Vinay Tyagi was formed to develop this information and identify Hamid Hussain and his whereabouts in the Seelampur area.
On 5th March, 2005 at 2 pm, source information was received that Hamid Hussain is coming from J&K with a consignment of RDX explosive material and would alight at Mukarba Chowk near Karnal by-pass at about 4.30 pm. It was informed that his associate Mohd. Shariq will be accompanying him on his motorcycle No. HR13 S 2639. A team of officers was constituted and the officers reached the spot at 3:15 pm, near the red signal of Sanjay Gandhi Transport Nagar T Point, near Mukarba Chowk. Two independent witnesses namely Anil Jain and Sanjay Dhaka agreed to join the police party. At about 4:15 pm, Mohd Shariq came on his motorcycle and stopped near Ravi Viklang STD. After waiting for sometime at about 4.40 pm, Hamid Hussain got down from a Tata Sumo and approached Mohd. Shariq. After talking to him for sometime, both of them sat on the motorcycle. When they were about to start the motorcycle, they were overpowered by the police party.
It is further asserted that accused Hamid Hussain was carrying a blue and green colour air bag, the contents of which were checked and beneath the layer of clothes, a plastic sack in a black polythene was recovered containing 22 card board packets holding RDX weighing about 480 gms and their collective weight was 10.560 kgs. The RDX was seized, samples were taken and parcels were prepared and sealed with ''MCS'' seal and CFSL forms were also filled. The motorcycle was also seized and was taken in possession through a seizure memo. On interrogation of both the accused, their full particulars were noted down which are as under:
(a) Hamid Hussain @ Abu Faisal s/o Rashid Ahmed, 3960, Gali No. 10, Jafarbad, Seelampur, Delhi;
(b) Mohd Shariq s/o Mohd Yasin r/o C-87/15, Gali No. 10, Jauhar bangar, near Seelampur, Delhi.
Both the accused were interrogated at the spot and they revealed that they were working for terrorist organization LeT. Hamid Hussain admitted that the consignment of RDX explosives was brought from Jammu and was supposed to be delivered to another LeT activist Shams @ Parvez Ahmed Kusro, residing in Uttam Nagar, New Delhi along with two Pakistani nationals who are LeT Fidayeen. Rukka was prepared by PW 19 Inspector Badrish Dutt at the instance of Inspector Mohan Chand Sharma which was sent for registration. FIR No. 40/05 was registered under Sections 121, 121-A, 122, 123, 120B IPC read with 4 & 5 of Explosive Substance Act and FIR No. 19/20 of Unlawful activities (Prevention) Act 2004 at PS Special Cell through PW 18 ASI Vikram Singh.
On intense interrogation of the two accused, they revealed that they had collected three AK 56 rifles with magazines and a large number of rounds of grenades, dynamites and detonators which were lying at a safe house at Suraj Vihar, Uttam Nagar, Delhi where Shams @ Parvez and two Pakistan based LeT Terrorists Bilawal and Shahnawaj were hiding. They also revealed that the Fidayeen were planning to conduct an attack on Indian Military Academy (IMA) Dehradun, Uttranchal.
With this information, a team was constituted which reached Suraj Vihar, Uttam Nagar, Delhi. The hide out was identified by accused Hamid Hussain and Mohd. Shariq. The area was receded and later evacuated. When the hide-out was surrounded, sensing police presence, the militants open fired and in the ensuing shoot out, three militants were killed who were identified as Belawal@ Shaqib Ali, aged 24 years r/o Rawal Pindi, Pakistan; Shahnawaj aged 25 years r/o Sindh, Pakistan and Shams@ Parvez r/o Patna, Bihar. A case vide FIR No. 190/05 dated 6th March 2005 under various provisions of UAP Act, IPC and ES Act besides Arms Act was registered. From the hide out three AK 56 rifles, six magazines, 450 detonators, 100 Kg Dynamite, four hand grenades, three bandoliers, one Satellite phone and one Maruti Car besides diaries and e-mail I Ds of terrorists with whom they were in touch with LeT Commanders were recovered.
During further investigation by the police, it transpired that accused Hamid Hussain and Mohd. Shariq were introduced in these activities by one Salim @ Doctor @ Masalewala @ Salar r/o Madhya Pradesh at whose behest they had travelled to Kathmandu, Nepal where they had met Abdul Aziz, a commander of LeT. Accused Mohd. Shariq disclosed that he was introduced to LeT by Tanjim and accused Hamid Hussain and he had been residing with deceased militant Shams @ Parvez at their hide out at Suraj Vihar, Uttam Nagar. The motorcycle which was used by accused Mohd. Shariq bearing No. HR 13 S 2639 was found to be a stolen one and was the subject matter of FIR No. 132/04 dated 16th April 2004 u/s 379/411 of IPC of PS Vasant Vihar for which accused Mohd. Shariq faced a separate trial clubbed with the present case.
Prosecution further contended that accused Hamid Hussain procured a consignment of hand grenades and pistol in June/July 2004 from Salim @ Doctor and the hand grenade was kept in the safe custody of accused Dilawar Khan r/o Welcome Nagar and the pistol was kept in the custody of Imam Masood of Bhaghwali Masjid. During the investigation, it was also found that the name of accused Iftkhar Ashan Malik was found in the diary of slain militant through whom information relating to IMA passes were obtained who was apprehended on 8th March 2005 and it was found that slain militant Shams@ Parvez had given specific instructions to accused Mohd. Iftkhar Ahsan Malik to gather information regarding certain activities of the IMA. During the course of investigation on 12th March 2005 accused Maulanan Dilawar Khan and Masood Ahmed were arrested on the identification of accused Hamid Hussain. Further investigation revealed that accused Haroon Rashid @ Farukh had been providing funds for carrying out terrorist activities to the slain militants at the behest of Saleem @ Doctor who was then arrested on 13th May 2005 and produced before the court of Ld ACMM and supplementary challan against accused Haroon was filed on 10th August, 2005.
The charges were framed against the Respondents and during the trial prosecution recorded the statement of 30 witnesses. The statements of Respondents u/s 313 of Cr.P.C were recorded on 26.11.2009. The Trial Court considering the evidence, convicted Respondent Nos. 1 & 2 u/s 5 of Explosive Substances Act, r/w 120B of IPC and also u/s 18/23 of Unlawful Activities (Prevention) Act, 1957 read with Section 120B and convicted Respondent No. 2 also u/s 411. Respondents No. 3 to 6 were however, acquitted of charges framed against them by order dated 8.1.2010.
It has been urged by the learned Counsel for the state that there is sufficient trustworthy evidence on record so as to infer that the Respondents had participated in the elaborate conspiracy involving terrorist activities against the sovereignty of India and the Court below has committed a manifest error in acquitting Respondents on serious charges which were amply established by the evidence on record.
The learned Counsel contended that the accused persons have been involved in a crime of catastrophic proportions by planning an attack on the Indian Military Academy, Dehradun, pursuant to a conspiracy with the view to wage a war against the Government of India punishable u/s 121 and 121A of the IPC. It was also argued that the learned Trial Court did not appreciate the fact that the possession of huge quantity of powerful explosives, sophisticated arms and ammunitions by the slain terrorist, who were to indulge in "Fidayeen" operation, was with a definite purpose and was a clear indicator of the grave danger in store for the Indian Army.
Learned Counsel emphasized that the Trial court did not appreciate that for criminal conspiracy the acts of the Respondents could not be segregated. Even if a person withdraws after participating in a conspiracy for some time, that does not dilute the factum of conspiracy, as per Section 120-A of the IPC and Section 10 of the Indian Evidence Act. In support of his submission, learned Counsel has relied on the judgment of State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, in which it is upheld that the first condition for the applicability of Section 10 of the Indian Evidence Act is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that it should have been a statement "in reference to their common intention.
Learned Counsel Mr. Vikas Pahwa has further stated that the learned Trial Court erred while appreciating the evidence on record, as it has overlooked and ignored vital ingredients as well as the evidence squarely pointing towards the involvement of the accused persons in the crime, like rejecting the identification of the three slain terrorist by accused Hamid Hussain and Mohd. Shariq vide Ex. PW-29/D, Ex. PW-29/C, thus giving the benefit of doubt to Respondent No. 3 to 6; by not accepting the recoveries made by the police from 17/28 Zakir Nagar and A-202, Adiba Market at the instance of accused persons, which were imperative in proving the link between the slain terrorist and the accused persons; by not accepting the recovery of ATM Card, cheque book and the blank letter heads of the Standard Chartered Bank belonging to the accused No. 4; by not accepting the disclosure statements and recoveries at the instance of Respondents No. 3 to 6 which formed an entire chain of events establishing the role of each individual during the course of investigation. Learned Counsel has prayed for leave to appeal with a view to take into consideration these aspects of the evidence on record and to prove the case of the prosecution against the Respondents.
Per contra, learned Counsel for Respondent No. 3 has argued that a prima facie case which is no doubt made out against Md. Iftkhar Ahsan Malik is to be considered only at the stage of framing of charges before the trial court. However this is not enough in itself to institute an appeal against acquittal. Even Section 378(3) of the Code of Criminal Procedure had been amended in 2005 with the purpose of providing an additional precaution against the admission of appeal against acquittal, by specifically requiring that such an appeal can be allowed only if the High Court grants special leave and this leave ought to be granted by the High Court only if the facts and circumstances are so compelling, or if the Trial Court has seriously erred in its findings of awarding an acquittal, that it justifies an interference by the High Court. A reference in support of this submission was made to the objects and reasons of the Law Commission Report. In its 48th Report it was reiterated that proper regard should be had to the need for putting reasonable limits on the period for which the anxiety and tension of a criminal prosecution should be allowed to torment the mind of the accused. There is in fact a qualitative distinction between conviction and acquittal, and appeals against acquittals should not be allowed in the same unrestricted manner as appeals against convictions.
It has been urged that Learned Public Prosecutor hasn''t successfully dealt with the errors in the Trial Court judgment which deals with every aspect of the evidence on record and consequently rightly adjudicated that the Respondent No. 3 is not guilty of the offence alleged against him. Learned Counsel relied on the judgment of Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., to expound on the scope of exercise of power by the Appellate Court against judgment of acquittal u/s 378 of Code of Criminal Procedure It has been held by the Apex Court in a plethora of cases that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. The Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken.
Learned Counsel for Respondent No. 3 stated that on 5th March, 2005 two individuals had met each other, conspired and then there was exchange of RDX which has been believed by the Trial Court, which is why Respondents No. 1 and 2 were convicted. However it is imperative to note that under no circumstances was Iftkhar/Respondents No. 3 mentioned in the disclosure statement of the accused persons nor any link established between Respondent No. 3 and the 3 men killed in the encounter at Uttam Nagar.
Respondents No. 1 and 2 were examined in the police station and they had identified Respondent No. 3 however this fact is undoubtedly hit by Section 162 of the Code of Criminal Procedure as no valid identification was made. Reliance was placed on Ramkishan Mithanlal Sharma Vs. The State of Bombay, which categorically states that statements made by the identifiers to a police officer in the course of investigation comes within the embargo of Section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and insofar as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of Section 162 and would be inadmissible in evidence.
Reliance has also been placed on the case of State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, wherein it was held that it was true that Section 21 of the Indian Evidence Act declares that admission is relevant and permits its proof against the person who makes it. Even when confession which are species of admissions are not hit by Sections 24, 25 or 26 and are relevant or when they became relevant under Sections 27, 28 and 29, they can only be proved against the maker thereof. There is no provision in the Evidence Act for making confession of an accused relevant or admissible against the co-accused.
Relying on the judgment of the trial court, learned Counsel for Respondent No. 3 contended that the trial court has taken account of every circumstance put against Iftakar and consequently held that the prosecution has failed to prove its case against him. His involvement in the alleged conspiracy was not proved beyond reasonable doubt due to inconsistencies in the evidence on record such as the recovery of the invitation card of the passing out parade of IMA, Dehradun Ex P-16/D from the room of Iftakar was of an event that had already taken place and hence was not of much value. Also with respect to the hand written slip P-13 seized vide memo Ex. PW 20/c containing the instructions given to him by the slain militants was placed in an envelope with the seal of "BD" but memo Ex. PW 20/C indicates that it was seal of "SD". The witness PW 20 explained that the seal of "SD" stood for Inspector Sanjay Dutt and seal of "BD" stands for inspector Badrish Dutt. However, it is in evidence that PW19, Badrish Dutt and PW 29 Sanjay Dutt did not visit Dehradun. In support of this submission learned Counsel cited the case of Ram Saran @ Kale v. State 1992 JCC 447 in which the court observed that a seal containing initials of a police officer who was neither a member of the raiding team nor present at the spot, prima facie makes the genuineness of the search and seizure doubtful. Similar references have been made in the following cases of Sate v. Sant Kumar 2003 II AD (Del) 341 and Hawa Singh Vs. State (Delhi Administration), . Besides this PW20/C refers to a slip in Hindi whereas P-13 is in English and no explanation for the same was offered on this count, and admittedly as per the deposition of PW 25 the documents were received by the CFSL in an open condition. In view of all these facts the trial court could not have taken any other view than the one adopted by it.
Learned Counsel for the Respondents No. 1, 2 and 4-6 has contended that the prosecution has not been successful in proving its case against the Respondents. Learned Counsel emphatically argued that even though the Respondents Hamid Hussain and Mohd. Shariq were arrested in Mukarba Chowk and recoveries of a polythene sack containing 22 cardboard boxes constituting black coloured RDX weighing a total of 10.56 Kg was effected, however further ammunitions and weapons were recovered from the House No. JB6/199 Welcome, Delhi and from a park in front of Masjid, Welcome, Delhi. However the judgment of the Trial court states the contrary in para 36, wherein it is clarified that as per the deposition PW 17, Inspector Rajinder Sehrawat and PW 29 Inspector Sanjay Dutt, after the encounter, the hide out of the slain militants was searched and 95 Kg. of galatine sticks which were kept in three boxes, 450 electric detonators besides arms and ammunitions etc. were recovered and seized by PW 21 the then ACP Omvir Singh which were a subject matter of FIR No. 190/05 registered at P.S. Uttam Nagar. In the depositions of all the three witnesses PW 17, PW 29 and PW 21 there is not even a mention of such a recovery being made. Thus the observation of the trial Court is not in consonance with the evidence on record. Also with regard to this observation no FIR, no Seizure memo, and no recoveries were proved in court.
The learned Counsel also contended that the FIR No. 40/2005 shows that the information was received on 5th March 2005 at about 9:30 pm, however the case property was deposited at around 8:30 pm which clearly shows that the Respondents No. 1 and 2 have been falsely implicated in the case. Counsel relied on the deposition of PW-2 ASI Paramjeet Singh which categorically states that on 5th March 2005, ACP Sh. Rajbir Singh deposited the articles of personal search against the two accused persons, namely Mohd. Shariq and Hamid Hussain. However this is contrary to the prosecution case according to which ACP wasn''t present on the 5th March and therefore returned only on the 6th of March 2005 because of which he couldn''t be a part of the encounter that took place in Uttam Nagar. Counsel further contended that the accused persons 1 and 2 were arrested on 4th February, 2005, illegally detained and falsely implicated in the present case. In support of his submission he relied on the depositions of DW-1 and DW-3. DW-1 Sh. Rashid Ahmed, father of Hamid Ahmed had deposed that on 4th February 2005 he noticed that his son was missing and made a complaint about the same with the PS Seelampur vide DD No. 15A dated 11th February 2005. Also DW-3 who was in custody of the Special Cell had deposed that he had seen accused Shariq in the lock up from 25th February - 7th March 2005.
During the course of the arguments learned Counsel, however, agreed that the case was a fit case for grant of leave against Respondents No. 1 and 2, as an appeal by the two Respondents is also pending.
However learned Counsel argued that the prosecution has completely failed to prove its case against the other co-accused and that the trial court has rightly acquitted them while considering every evidence put by the prosecution against them.
This Court has gone through the judgment of the court below, as well as perused the lower court records and the evidence contained therein. We however find force in the arguments advanced by Mr. Vikas Pahwa, Additional Standing Counsel, especially in light of the serious allegations made by the prosecution against the Respondents.
Rejection of the recovery of the IMA passes from the room of Respondent No. 3 by the trial court stating that there was no purpose in taking passes of an event that had already occurred is an assumption which is not sustainable in the facts and circumstances as it was not the case of the prosecution that the attack was planned for the day of passing out parade. Perusal of the passes clearly shows the detailed picture of the IMA on those passes. In these circumstances the fact that the passes were for an old event will not be material and will not exculpate the Respondents. In view of the instructions received in the slip, P-13 directing Iftakar to collect details of the topography of IMA Dehradun and collecting information regarding routine programme of the Academy and to identify possible hide outs, it does not reflect no purpose in getting the passes having the photographs of IMA on it. This evidence has not been considered appropriately and has been rejected on its own surmise by the Trial Court and requires consideration in view of the submission made on behalf of the Petitioner.
It has been observed in Ghurey Lal Vs. State of U.P., by the Apex Court that the appellate court can review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. While reviewing, the Appellate Court can re-appreciate the entire evidence on record in order to ascertain the correctness of the trial court''s conclusion with respect to both facts and law. However, in order to interfere with the order of acquittal of the Trial Court, there must also be substantial and compelling reasons for holding that the trial Court was wrong. "Very substantial and compelling reasons" exist when:
(i) The trial court''s conclusion with regard to the facts is palpably wrong;
(ii) The trial court''s decision is based on an erroneous view of law;
(iii) The trial court''s judgment is likely to result in "grave miscarriage of justice";
(iv)The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court''s judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. This list is intended to be illustrative, and not exhaustive.
Reliance can also be placed on the following cases: State of Maharashtra Vs. Sujay Mangesh Poyarekar, State of HP v. Manoj Kumar @ Chottu (2008) 1 SCC 654 State of Rajasthan Vs. Sohan Lal and Others, and State of Orissa Vs. Dhaniram Luhar, . In deciding the question whether requisite leave should or should not be granted, the Court has to apply its mind, to consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. Even though, each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court need not be allowed by the appellate court nor every appeal be admitted and decided on merits, it cannot be accepted that at the stage of granting leave, the court would enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be "perverse" and, hence, no leave should be granted. If arguable points have been raised, and if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence, the appellate Court is required to grant leave as sought and decide the appeal on merits. The fact that the entertaining of an appeal at the instance of the State against an order of acquittal for an effective consideration of the same on merits is made subject to the preliminary exercise of obtaining of leave to appeal from the High Court, is no reason to consider it as an appeal of any inferior quality or grade, when it has been specifically and statutorily provided for.
This cannot be disputed that in order to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. In Jayendra Saraswathi Swamigal Vs. State of Tamil Nadu, the Supreme Court had held that if prima facie evidence of existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of common object is admissible against all.
The Learned Counsel for the Appellant had given the sequence of events that implies the inculpation of the accused persons. Both accused persons, Respondents No. 1 and 2 were arrested From Mukarba Chowk and recoveries of RDX explosives were effected. Both the accused persons, Hamid Hussain and Mohd. Shariq were interrogated on arrest and they divulged that they were working for LeT and the consignment of RDX was brought from Jammu and Kashmir to be delivered to another LeT activist Shams @ Parvez Ahmed Khusro residing in Uttam Nagar along with two Pakistani LeT Fidayin. On intense interrogation the two accused, revealed that they had collected the three AK 56 rifles with magazines and large rounds of grenades, dynamites and detonators which were lying at the safe house at Suraj Vihar, Uttam Nagar, Delhi where Shams @Parvez and the two Pakistani based LeT Terrorist Bilawal and Shahnawaj were hiding and they also revealed that the Fidayeen were planning to conduct an attack on the Indian Military Academy (IMA) Dehradun, Uttranchal. Pursuant to the said information the police made all efforts to apprehend the three terrorist, however, an encounter took place at Suraj Vihar, Uttam Nagar, Delhi and the three militants were killed.
Learned Counsel for the state has argued that the Trial court has accepted the first recovery that was made at Mukarba Chowk from Mohd Shariq and Hamid Hussain constituting a bag which contained a black plastic sack of polythene, holding 22 cardboard packets of RDX explosives. It is on the basis of the said recovery that accused 1 and 2 were convicted by the Trial Court u/s 5 of Explosive Substances Act r/w 120B of IPC and Section 18 r/w 23 of the Unlawful Activities (P) Act 2004 r/w 120B IPC. Learned Counsel, has further contended that the Trial Court has also accepted the disclosure statements of accused no 1 and 2, which consequently led to the encounter at Uttam Nagar and the death of the three terrorist. In turn this encounter too is believed by the Trial Court. However, the Trial Court disbelieved the prosecution regarding the allegations of conspiracy planned against the IMA by the Fidayeen. The Trial court also disbelieved the allegations of waging a war and preparation of terrorist activities pursuant to it, and the recoveries made from Respondents No. 4 & 5, that of a hand grenade and one Chinese pistol respectively. The learned Counsel contends that the Trial court gravely erred in doing so as the same disclosure statement cannot be believed for one purpose and be discarded on other grounds.
The counsel for the Respondents has emphasized on the fact that the prosecution has failed to establish any contact between the co-accused persons and hence has ultimately failed to prove the offence of conspiracy. It was further submitted that the trial court too had accepted this stating that since no evidence of the concrete nature had been found either in the form of mobile or telephone records, or any independent witnesses or any independent corroborative material, by placing sole reliance on the disclosure statements of accused Mohd. Shariq and Hamid Hussain vide memo Ex. PW 29/C and PW 29/D conspiracy cannot be established.
However, per contra the learned Counsel for the State has contended that the prosecution does not need to prove any communication between the co-accused persons in order to prove conspiracy. As per the case of the prosecution the main accused heading the operation was clearly accused Hamid Hussain and he is the one who assigned the roles to be played by the other co-accused persons. Learned Counsel emphasized on the point that incase of conspiracy direct evidence cannot be expected and what must be proved must be on the basis of circumstantial evidence. He placed reliance on Yash Pal Mittal Vs. State of Punjab, which expounded ''conspiracy'' in following manner:
The offence of criminal conspiracy u/s 120A is a distinct offence introduced for the first time in 1913 in Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy.
The learned Counsel has urged that the attack on the IMA was the common goal of all the conspirators. This fact came out first in the disclosure statements recorded on 6th March 2005, which was further corroborated by the recovery of the passes of passing out parade at IMA. Two of these passes were recovered from the house of the slain terrorist itself, while one was in the possession of Respondent No. 3, and it is from the diary of one of the slain militants recovered at the hide out that the name of accused Iftkhar Ahsan Malik was found, which as contended by the learned Counsel clearly establishes a nexus. This fact is further substantiated and corroborated by the deposition of PW-15 who stated that Respondent No. 3 came to the room of PW-15 and picked up the passes after enquiring if they were of any utility to him. These passes were given to PW-15 to attend the passing out parade at IMA on 9th December 2004 at Dehradun. Learned Counsel has submitted that there was no need for Respondent No. 3 to have known the other Respondents, as his job was clearly to collect any information regarding the IMA. Hence, his role in the conspiracy stands established, therefore the trial court has erred in treating the recovery of the IMA passes in such a casual and dismissive manner.
The learned Counsel further contended that infirmities regarding the seal and slip cannot be enough to vitiate the trial. As clarified by the counsel, seal used in a case is only one and hence whether or not the said officer is present at the time of recovery, his seal may be used in the course of investigation. The fact that the recoveries were affected has been corroborated by the deposition of PW-20 SI Ramesh Lamba who was present at Dehradun at the time of recovery and in the circumstances the recoveries could not be disbelieved taking into consideration the entire evidence.
The learned Counsel for the State has also opposed the arguments of learned Counsel for the Respondents No. 1,2, and 4-6, who had urged that the entire incident at the Mukarba Chowk was staged as the accused persons were already in unlawful detention of the Special Cell. In support of his submission learned Counsel for the Respondent has relied on the missing reports and the deposition of DW3. However the learned Counsel for the state contends that this issue has been rightly adjudicated by the trial court itself, which has rejected the plea stating that it was highly unlikely that the accused persons indulging in clandestine terrorist activities, would inform the members of their families about their whereabouts and that the evidence of DW3 was probably in light of some grouse against the police and hence out of misplaced sympathy on the side of his brethren. Hence this plea of the Respondent does not hold much water in light of the facts and circumstances.
Learned Counsel has further contended that the name of accused Haroon Rashid came into light while effecting search of the accommodation of slain terrorist Shams at house No. 17/18 Zakir Nagar on 6th March 2005 and by memo Ex. PW8/10, ATM card and cheque book with some blank papers of Standard Chartered bank in his name were recovered. Upon the arrest of the accused 10000 Singapore dollars was also recovered from his house. His e-mail accounts were opened and various print outs were taken out of which one e-mail Exhibit PW26/40 is a mail written by the accused to his mentor, explaining how to make a call on his mobile without the same being traced. The accused person in his statement u/s 313 has accepted that these e-mail accounts belonged to him. Accused Hamid Hussain in his 2nd disclosure statement Ex. PW 19/G referred to collection of Rs. 49,000/- on two occasions sometime around 20th January 2005 by the slain terrorist Shams through one Yunis Raja which funds were sent from Singapore by one Farooq. And it is in the third disclosure statement Ex. PW 19/J that accused Hamid Hussain allegedly informed the police that Farooq was a code name and the real name of the LeT activist was Haroon Rashid who was funding the terrorist activities. This aspect is corroborated by the admission of the accused Haroon to the extent that Rs. 49,000 was remitted by the accused through the Western Union Transfer on 10th January 2005 and 15th January 2005 and was collected by his brother Yunis. However it is denied that this amount was given to the terrorist Shams under his directions. In spite of the denial the learned Counsel contends that on the basis of the recoveries of the cheque book and ATM card in the house of the slain terrorist the role of accused Haroon as the financer in the conspiracy also stands established which was wrongly rejected by the Trial Court.
The learned Counsel also urged that since the Trial Court has believed the disclosure statement of accused 1 and 2 for one purpose it cannot be discarded for the arrest of Respondent No. 4 and 5, who were arrested on the pointing out of accused 1 and 2 and from whom a hand grenade and Chinese pistol was recovered. Intent of unlawful use can be made on account of possession of unlawful weapons by these Respondents. Prosecution has not to establish that a particular unlawful use was intended, so long as the hand grenade and Chinese pistol could not be put to any lawful use. The Trial Court in the circumstances has misread the material evidence and the conclusions are palpably wrong and its order/judgment is manifestly unjust and unreasonable.
Some minute details of some of the facts have also been raised by the counsel for Respondent No. 3 however, this Court is not required to go into very minute details in order to consider and infer whether arguable points have been raised by the Petitioner or not and whether the Petitioner has been able to make out a prime facie case or not. In the circumstances the inevitable inference is that arguable points are involved which require deeper scrutiny and re-appreciation of the record and the evidence. The Petitioner has been able to make out a prima facie case for re-appreciation of entire evidence and it will be just and equitable and in the interest of justice to grant leave to the Petitioner.
In the circumstances leave to appeal is granted to the Petitioner against the judgment dated 8th January, 2010 passed by the Additional Sessions Judge-II, New Delhi in titled State v. Hamid Hussain and Ors. S.C. No. 178/2005 arising from FIR No. 40/2005, PS Special Cell, u/s 121/121-A/122/123 & 120B IPC and u/s 4/5 of Explosive Substance Act and Sections 18/19/20/23 of Unlawful Activities (P) Amendment Act and also in FIR No. 132/2004, PS Special Cell u/s 379/411 of IPC. The registry is directed to register the above noted petition as Criminal Appeal.
Respondents No. 3 to 6 are directed to execute personal bonds in the sum of Rs. 50,000/- each with one surety each to the satisfaction of the Trial Court within a period of four weeks. The Criminal Appeal be listed before the Regular Bench on 25th March, 2011.