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: 1 :
IN THE COURT OF SH. O.P. SAINI : ASJ : DELHI
S.Cs. No. 01/05, 02/05, 05/05, 07/05, 08/05, 09/05, 10/05 &11/05
State Vs.
1. Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram
2. Rehmana Yusuf Farooqui d/o Nawab Mohammed
Yusuf Farooqui
3. Nazir Ahmad Qasid s/o Gulam Mohammad Qasid
4. Farooq Ahmed Qasid s/o Nazir Ahmad Qasid
5. Babbar Mohsin Baghwala s/o Jaleel Ahmad
6. Devender Singh s/o Bhawani Singh
7. Shehenshah Alam s/o Sh. Anwar Hussain
8. Rajeev Kumar Malhotra s/o Kishan Chand
9. Matloob Alam s/o Mehboob Alam
10. Mool Chand Sharma s/o Har Chand
11. Sadakat Ali s/o Abdul Ali
12. Sabir @ Sabarulla @ Afgani (P.O.)
13. Sher Zaman Afgani s/o Mohd. Raza (P.O.)
14. Abu Haider (P.O.)
15. Abu Shukher (P.O.)
16. Abu Saad (P.O.)
17. Zahur Ahmad Qasid s/o Gulam Mohd. Qasid (P.O.)
18. Bilal Ahmad Kawa s/o Ali Mohd. Kawa (P.O.)
19. Athruddin @ Athar Ali @ Salim @ Abdulla s/o
Ahmuddin (P.O.)
FIR No. 688/00, PS Kotwali
: 2 :
20. Abu Bilal @ Abu Nasir @ Dar (Dead)
21. Abu Shamal (Dead)
22. Abu Suffian (Dead)
FIR NO. 688/2000 P.S. Kotwali
U/s 302/307/186/353/120B/121/121-A/216/201 IPC
25/27/54/59 A. Act & 14 F. Act and4/5 Exp. Sub. Act & u/s 420/468/471/474/34 IPC
State Vs. Md. Arif @ Ashfaq @ Abu Hamad S/o Md. Akram
S.C. No. 4/05FIR No. 03/2001U/s 4/5 Explosive Substances Act
P.S. New Friends Colony
State Vs. Md. Arif @ Ashfaq @ Abu Hamad S/o Md. Akram
S.C. No. 3/05FIR No. 419/2001U/s 25/54/59 Arms ActP.S. Kalyan Puri.
State Vs. Matloob Alam s/o Mehboob Alam
S.C. No. 6/05FIR No. 65/2001U/s 420/468/471/474/34 IPC
P.S. New Friends Colony
FIR No. 688/00, PS Kotwali
: 3 :
J U D G M E N T :-
1. This judgment shall dispose of the aforesaid cases as
the facts of the cases are inter-connected as they arise from the
same incident and the entire evidence has been recorded in the
main case, FIR No. 688/00, Police Station Kotwali, after the
cases were ordered to be clubbed together.
(A) BRIEF FACTS AND INVESTIGATION :-
2. Brief facts of the case as made out from the record are
that on 22.12.2000 at about 9.00 pm, a firing incident took
place inside Red Fort, in which three Army personnels namely,
civilian sentry Abdulah Thakur, Naik Ashok Kumar and
Rifleman Uma Shanker, posted with 7th Rajputana Rifles, lost
their lives. After carrying out the firing, the culprits escaped
from the rear side of the Red Fort.
3. Information was received in Police Station Kotwali about the
incident at about 9.25 pm vide DD entry No. 19-A, which was
assigned to SI Rajender Singh for inquiry and investigation. He
along with Ct. Jitender reached the spot. There he came to
know that some unknown persons had intruded into Red Fort,
carried out firing, due to which Abdullah Thakur and Uma
FIR No. 688/00, PS Kotwali
: 4 :
Shanker lost their lives and Ashok Kumar was critically injured
and had since been removed to hospital, and thereafter, the
intruders escaped towards the rear side of the Red Fort. Capt.
S.P. Patvardhan was present on the spot. In the meanwhile Ins.
Roop Lal, SHO of Police Station Kotwali, also reached the
spot.
4. Capt. S.P. Patvardhan gave his written statement to the SHO
Ins. Roop Lal as under :-
“ 7 Raj Rifle” Red Fort Delhi-06 22 Dec. 2000
SHO Kotwali PSDelhi.
1. At 21/05 Hrs. I (Capt. S.P. Patvardhan) was in my
room in the officers mess and heard firing from the
general direction of the M.T. On coming out, I learnt
the following .
2 Around 21/05 hrs on 22 nd Dec. 2000 (Friday) two
persons in dark clothing and armed with AK 56/47
Rifles entered the Red Fort from direction of Saleem
Garh gate/Yamuna Bridge. While moving inside they
came across a civilian sentry by the name of Abdullah
Thakur deployed on duty at 339 (Independent) supply
platoon and fired a burst hitting him in the chest and the
FIR No. 688/00, PS Kotwali
: 5 :
individual died on the spot. Thereafter the intruders ran
and near 7th Raj Rifles MT lines came across Rifleman
(barber) Uma Shanker and fired a burst at him due to
which the individual died. Thereafter the intruders ran
into a room in the unit lines close to the office complex
and shot Naik Ashok Kumar, who was seriously
injured. The intruders then ran towards ASI Museaum
(Museum) complex. They fired in the direction of
police guard room located inside the museaum.
(Museum) At this stage they were fired upon by the
Army quick reaction team. However, intruders escaped
into wooded area close to the Ring Road (Mahatma
Gandhi Marg). We have recovered some fired/unfired
ammunition which we will produce. The area of Red
Fort has been sealed off by the army and search of the
area is being carried out. At the same time, Police
which had been alerted and has cordoned off the area.
This is for your information and legal action please. At
the time of firing, I was inside my room in the officers
mess.
Sd/- (S.P. PATWARDHAN) CAPTAIN, 7th RAJ RIFLE, RED FORT, DELHI-06.”
5. Ins. Roop Lal along with staff inspected the scene of crime
FIR No. 688/00, PS Kotwali
: 6 :
and, thereafter, made his endorsement on the above statement
of Capt. S.P. Patvardhan and sent the same to the Police Station
through SI Rajender Singh for getting the case registered. He
got the instant case registered vide FIR no. 688/00, returned to
the spot and handed over the rukka and carbon copy of the FIR
to Ins. Roop Lal, who had taken over the investigation. Senior
officials were informed about the incident and they also
reached the spot. Dog squad, bomb disposal squad, crime
team and photographer were summoned to the spot and reached
there.
6. Entire scene of crime was inspected and photographed. From
the spot, blood sample, earth control sample, empty cases of
fired bullets and a slipper and wrist-watch of Naik Ashok
Kumar were lifted, sealed and seized. An iron rack was also hit
by a bullet and that portion was also cut off from the rack and
sealed and seized. One fired lead piece was also lifted from the
spot and was sealed and seized. Blood-stained clothes of
Abdullah Thakur and Uma Shanker were also seized from the
spot.
7. Information was received from the hospital that Naik Ashok
FIR No. 688/00, PS Kotwali
: 7 :
Kumar had expired. His clothes were also brought to the spot
and these were also seized. Thereafter, inquest proceedings
were conducted on the dead bodies of Uma Shanker and
Abdullah Thakur and were sent for postmortem. From the
spot, thirty-six fired cases were collected and seized. One live
cartridge was also found and it was also seized. Capt. S.P.
Patvardhan also handed over three magazines to the police and
one of the magazines was found with twenty-eight live
cartridges. These magazines were also found lying inside the
Red Fort. Forty fired cases were also handed over to the
police. Ins. Roop Lal prepared sketch thereof and seized the
same. SI Sanjay Kumar, who was also present inside the Red
Fort, also found a polythene bag containing currency notes
worth Rs. 1,415/- consisting of ten notes of Rs. 100/- each,
eight currency notes of Rs. 50/- each, one note of Rs. 10/- and
one note of Rs. 5/-. A paper slip with telephone no.
9811278510 was also found. The slip was pasted on a paper
and was taken into possession. The currency notes were also
taken into police possession. A rope measuring about 50 feet
and a cap were also recovered from inside the Red Fort and
FIR No. 688/00, PS Kotwali
: 8 :
same were also seized.
8. On 23.12.2000 at about 10.30 am, information was received
about a rifle lying near Vijaya Ghat. Ins. Roop Lal reached the
spot and summoned crime team, dog squad, finger print experts
and CFSL team. The rifle was photographed and finger prints
were lifted. magazine of the rifle was taken out and it was
found to contain seven rounds. Sketch of the rifle as well as
cartridges were prepared and same were also seized. Inquest
proceedings were conducted on the dead body of Naik Ashok
Kumar, who had since expired in the hospital. Postmortem
was conducted on the dead bodies of Naik Ashok kumar,
Abdullah Thakur and Uma Shankar and, thereafter, dead
bodies were handed over to Army Authorities. The hospital
authorities had also handed over eight sealed parcel to him,
which were also seized and these contained blood samples of
the three deceased army personnels. Site plans of the scene of
occurrence as well as place of recovery at Vijaya Ghat were
also prepared.
9. Record of telephone number 9811278510, the number which
was found written on a paper chit on the spot, was searched and
FIR No. 688/00, PS Kotwali
: 9 :
examined by the police. An examination of the call details of
this number, revealed that a large number of calls were made
from this telephone to telephone No. 2720223, installed at 308-
A, DDA Flats, Gazhi Pur, Delhi and telephone number
6315904, installed at 18-C, Gaffur Nagar, Okhla, the premises
from which a computer center “Knowledge Plus” was being
run. The aforesaid telephones number as well as the premises
were kept under surveillance. It was revealed that this
computer center was being run by one Md. Arif @ Ashfaq ,
residing at Gazhi Pur. In the late evening of 25.12.2000,
information was received that Md. Arif @ Ashfaq , owner of
“Knowledge Plus Computer Center” was seen at Batla House,
Okhla, and had left for Gazhi pur.
10. At about 11.00 pm, a raid was conducted at 308-A, DDA Flat,
Gazhi Pur, but Md. Arif @ Ashfaq @ Ashaq was not found.
However, three ladies were present at the house including his
wife Rehmana. Ins. Ved Parkash and his staff decided to sit
inside the flat, whereas other members of police party would
stay at a distance from the flat waiting for the arrival of Md.
Arif @ Ashfaq . At about 12.40 am, a person was seen
FIR No. 688/00, PS Kotwali
: 10 :
entering the aforesaid flat and he was apprehended. He turned
out to be Md. Arif @ Ashfaq , owner of “Knowledge Plus
Computer Center”.
11. In his personal search, a 9 mm pistol with six live rounds and a
mobile set, (motorola) with telephone no. 9811278510 were
recovered. Both these items were seized. Ins. Harender Singh
was summoned to the spot and he conducted further
proceedings regarding the recovery of pistol with six rounds
from Md. Arif @ Ashfaq . He prepared a rukka and got FIR
No. 419/00 registered at Police Station Kalyan Puri. He also
seized the pistol in this case and recorded a disclosure
statement of accused Md. Arif @ Ashfaq , after formally
arresting him in this case. In the disclosure statement, he
disclosed about the incident inside Red Fort, the weapons
dumped by them after the incident as well as his hideout at G-
73, Muradi Road, Delhi.
12. House search of flat no. 308-A, DDA Flat, Gazhi Pur was
conducted. During house-sarch ration card, driving licence,
cheque-book of HDFC bank and ATM card of Md. Arif @
Ashfaq were recovered. Three pay-in-slips, passport of
FIR No. 688/00, PS Kotwali
: 11 :
Rehmana Yusuf Farukhi, her Identity-card of a college and
cheque book of SBI of Rehmana Yusuf Farukhi were
recovered. One cash deposit slip of Standard Chartered Bank,
a personal diary, a digital diary and some of other articles were
recovered and all the aforesaid articles were seized.
13. A raid was conducted during the night at G-73, Muradi Road,
Batla House, Jamia Nagar, Okhla, Delhi for apprehending the
associates of accused Md. Arif @ Ashfaq . However, the
aforesaid house was found locked. At about 5.15 am, a person
who was later on identified as Abu Shamal @ Faisal by Md.
Arif @ Ashfaq , was seen entering the aforesaid house. He
closed the door immediately. The police party knocked at the
door and he was asked to open the door, but instead of opening
of door, he started firing from inside the house. Police party
also retaliated by firing. The door of the house broke away
during the incident. In the firing that took place, Abu Shamal
@ Faisal died and his dead body was identified by accused Md.
Arif @ Ashfaq , who was also with the police party. During
the search of the house, one AK-56 rifle, one magazine with
thirty cartridges, two hand-grenades, one bandoleer, a military
FIR No. 688/00, PS Kotwali
: 12 :
colour pouch, and one khaki uniform were recovered. Dead
body of Abu Shamal was removed to hospital and postmortem
was got conducted. As police party was fired upon and arms,
ammunition and explosive were recovered, FIR No. 630/00,
Police Station New Friends Colony was registered about the
incident u/s 186/353/307 IPC read with Sections 4 & 5 of
Explosive Substances Act and Sections 25/27 of Arms Act.
14. Accused Md. Arif @ Ashfaq @ Abu Hamad and his wife
Rehmana Yusuf Farukhi were arrested in case FIR No. 688/00.
The allegations against accused Rehmana Yusuf Farukhi are
that she knew fully well that accused Md. Arif @ Ashfaq was
a Pakistan National and had come to India for carrying out
terrorist act and despite that, she provided her shelter and
married him and for that she had received money from him
including Rs. 2,80,000/- deposited in her account at State Bank
of India, Gazhipur Branch, Delhi. She was a party to the
conspiracy to carry out terrorist acts in Delhi.
15. As per the disclosure statement of Md. Arif @ Ashfaq , the
police party further took him to the rear side of the Red Fort,
where on his pointing out, one AK-56 rifle, two magazines, one
FIR No. 688/00, PS Kotwali
: 13 :
bandoleer and four hand-grenades were recovered. Bomb
disposal squad, CFSL team and photographer were summoned
to the spot. In one magazine, thirty live cartridges, while in
other two live cartridges were found. A kitchen knife was also
found in the bandoleer. The weapons were examined for finger
prints, but none could be detected. The four hand-grenades
were defused and after checking, inspecting and photographing
the same, these were seized. Sketches of the rifle, magazines
and one live round were prepared before seizure. A site plan of
the place of recovery was also prepared.
16. On 01.01.2001, accused Md. Arif @ Ashfaq made further
disclosure regarding three hand-grenades being concealed by
him and his associates in the area of Jamia Milia University,
behind his “Knowledge Plus Computer Center”. Consequent
to the disclosure statement, accused Md. Arif @ Ashfaq got
three hand-grenades recovered from a place near boundary
wall of Jamia Milia University, near to the staff quarters. The
three hand-grenades were seized, a rukka was prepared and
FIR No. 3/01, PS New Friends Colony was got registered u/s 4
& 5 Explosive Substances Act and investigation was handed
FIR No. 688/00, PS Kotwali
: 14 :
over to SI Sunder Lal. A site plan was also prepared of the
place of recovery.
17. As per the information provided by the accused regarding
preparation of his driving licence, accused Devender Singh,
Manager of Seven Star Motor Driving College, Sarai Jullena
Delhi, was arrested on 04.01.2001. On the same day,
Shahanshah Alam of Akashdeep Motor Driving College,
Ghaziabad was also arrested for helping accused Md. Arif @
Ashfaq for procuring the driving licence without possessing
the requisite documents, from Ghaziabad Transport Authority.
Rajiv Kumar Malhotra of Star Motor Driving College,
Ghaziabad was arrested on 07.01.2001, also for helping
accused Md. Arif @ Ashfaq in procuring the driving licence.
The allegations of the prosecution are that accused Md. Arif @
Ashfaq obtained training for driving at Seven Star Motor
Driving College, Sarai Jullena, where accused Devender Singh
was manager. He obtained Rs. 2,000/- from accused Md. Arif
@ Ashfaq knowing fully well that accused Md. Arif @ Ashfaq
was not having valid documents for getting a driving licence
prepared in his name and out of that Rs. 2,000/-, he passed Rs.
FIR No. 688/00, PS Kotwali
: 15 :
900/- and particulars of Md. Arif @ Ashfaq to Rajiv Malhotra,
owner of Star Motor Driving College Ghaziabad, for getting a
licence prepared. Accused Rajiv Malhotra further passed Rs.
600/- and particulars of Md. Arif @ Ashfaq to accused
Shahanshah Alam, an employee of Akashdeep Motor Driving
College Ghaziabad, for getting a driving licence prepared for
accused Md. Arif @ Ashfaq from Ghaziabad Transport
Authority. It is alleged that all these three accused knew the
identity and intention of accused Md. Arif @ Ashfaq and they
shared the same.
18. On 04.01.2001, accused Babar Mohsin was also arrested. The
allegations against him are that he provided shelter to the
accused Md. Arif @ Ashfaq , when he came to Delhi in
February-March 2000 for preparing base for carrying out
terrorist acts in Delhi and also helped him in procuring a room
on rent. He also moved accused Md. Arif @ Ashfaq around
the city of Delhi on his motor-cycle to show him important
landmarks of the city for making them target of terrorist
attacks. It is alleged that he was also a party to the conspiracy
to carry out terrorist acts in Delhi. A letter allegedly written
FIR No. 688/00, PS Kotwali
: 16 :
by accused Md. Arif @ Ashfaq to him thanking him for the
help provided to him (Md. Arif @ Ashfaq ) during his stay in
Delhi, was recovered from his (Babar Mohsin) motor-cycle.
19. Accused Md. Arif @ Ashfaq had further disclosed that he
also got his fake ration card prepared through Matloob Alam,
Fair Price Shop owner at Okhla. Matloob Alam was
questioned and was arrested in this case on 13.04.2001. It is
alleged that during investigation, it came to light that he had
helped accused Md. Arif @ Ashfaq in getting the ration card
prepared knowing fully well the identity and purpose of
procuring the fake ration card.
20. The fake ration card of accused Md. Arif @ Ashfaq was
allegedly got prepared by accused Matloob Alam with the help
of another accused Mool Chand Sharma, who was Ration
Inspector of circle-6, Okhla, Delhi, at that time. It is alleged
that accused Mool Chand Sharma also knew the purpose for
which the fake ration card was prepared and as such he and
accused Matloob Alam were the party to conspiracy to carry
out terrorist acts in Delhi. He was arrested on 18.04.2001.
21. Accused Sadakat Ali was arrested on 22.12.2001 during the
FIR No. 688/00, PS Kotwali
: 17 :
execution of non-bailable warrants issued against him by the
court after challan was filed against him without arrest on
07.12.2001. He was arrested on the allegations that he had let
out his premises No. 18-C, Gaffur Nagar, Okhla, Delhi to Md.
Arif @ Ashfaq for running the computer center knowingly
fully well his identity and object. He knew that Md. Arif @
Ashfaq was a Pakistan National and conspired with him in
carrying out the attack inside the Red Fort. He was constantly
in touch with him through telephone and his house was being
visited by accused Md. Arif @ Ashfaq and Babar Mohsin. It
is alleged that this accused fully shared the aims and objectives
of the conspiracy and also sheltered the conspirators before and
after the incident.
22. Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid
have been arrested on the allegations that they along with
accused Md. Arif @ Ashfaq @ Abu Hamad, Abu Bilal @
Bilal Ahmad @ Dar, (P.O.), since killed, Abu Haider, Abu
Sad, Abu Shuakar, Abu Suffian (since killed) Abu Shamal
(since killed) (all P.O.s and Pakistan nationals) and Sher
Zaman and Sabir @ Sabarulla, both P.O and Afgan nationals,
FIR No. 688/00, PS Kotwali
: 18 :
Bilal Ahmad Kawa, brother-in-law of Farukh Ahmad Quasid,
Jahur Ahmad Quasid, both resident of Sri Nagar and Attruddin
(P.O.) a resident of Lucknow, all members of Lashkar-e-Toiba,
conspired at their residence at Bagat Kanipur, Badgaon, Sri
Nagar between December 1999 to December 2000 to wage war
against Government of India and for that purpose collected
arms and ammunitions and to attack Army camp inside Red
Fort and to kill anybody who resists their action. It is alleged
that this conspiracy was hatched at the instance of Lashkar-e-
Toiba , which aims at spreading terror in India and to forcibly
separate Jammu & Kashmir from India. For that purpose both
of these accused, who are father and son, had sheltered the
aforesaid accused at their residence as well as concealed the
weapons there. Both the accused used to distribute Hawala
money to the terrorists for financing their activities in India.
Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid were
formally arrested in this case on 29.03.2001 in Kot Bhalwal
Jail, Jammu, where they were detained under Public Safety
Act. Production warrants were issued against the two and they
were produced in the court at Delhi on 03.01.2002.
FIR No. 688/00, PS Kotwali
: 19 :
23. Accused Md. Arif @ Ashfaq , a Pakistan national, entered
India in December 1999 at the instance of Abu Bilal @ Bilal
Ahmad @ Dar, who was then Dy. Commander of Lashkar-e-
Toiba, Sri Nagar. He (Md. Arif @ Ashfaq ) was sheltered
along with his arms and ammunitions consisting of one AK-47
rifle, four magazines and two hand-grenades at the residence
of Nazir Ahmad Quasid and Farukh Ahmad Quasid. In
January-February 2000, Abu Haider and Md. Arif @ Ashfaq
came to Delhi, at the instance of Abu Bilal @ Bilal Ahmad, for
setting up a base at Delhi. At Delhi, Md. Arif @ Ashfaq
stayed at the house of accused Babar Mohsin. Babar Mohsin
moved him around Delhi on his motor-cycle and showed him
the important places of Delhi and also allegedly joined the
conspiracy for attacking the Army camp inside the Red Fort.
He rented a room at Okhla, Delhi and, thereafter, returned to
Sri Nagar.
24. In May 2000, Md. Arif @ Ashfaq again came to Delhi and
with a view to set up a base for Lashkar-e-Toiba, rented a room
in the house of one Nain Singh in Okhla, opened a computer
center by the name of “Knowledge Plus” at 18-C, Gaffur
FIR No. 688/00, PS Kotwali
: 20 :
Nagar, Okhla, Delhi, a premises taken on rent by him from
accused Sadakat Ali on a monthly rent of Rs. 4,500/-. He also
took a room on rent at G-73, Muradi Road, belonging to Sh.
Gian Chand Goel, in which also he set up his hideout.
25. During his stay at Delhi, Md. Arif @ Ashfaq got training for
driving at Seven Star Motor Driving College, Sarai Jullena,
where accused Devender Singh was the manager. After getting
training, he allegedly paid Rs. 2,000/- to Devender Singh for
getting a driving licence prepared. Devender Singh spoke to
Rajiv Malhotra, who used to run Star Motor Driving College at
Ghaziabad, for getting driving licence of Md. Arif @ Ashfaq
prepared and handed over to him Rs. 900/- and a photograph of
Md. Arif @ Ashfaq for this purpose. Rajiv Malhotra contacted
Shahanshah Alam, who was an employee of Akash Deep
Motor Driving College, Ghaziabad, for getting the driving
licence prepared from Ghaziabad Transport Authority and paid
him Rs. 600/-. Shahanshah Alam allegedly procured a fake
ration card with address 102, Kela Bhatta, Ghaziabad and a
learner's licence with address B-17, Jungpura, Delhi in the
name of Md. Arif @ Ashfaq Ahmad Khan, and got issued a
FIR No. 688/00, PS Kotwali
: 21 :
driving licence to him from Ghaziabad Transport Authority.
26. Thereafter, on the basis of this driving licence, in September
2000, Md. Arif @ Ashfaq got account no. 0891000024344
opened in HDFC Bank, New Friends Colony, New Delhi at the
address of 18, Gaffur Nagar, Jamia, Okhla, New Delhi.
27. Md. Arif @ Ashfaq also got a ration card prepared through
accused Matloob Alam at the address of 17/12, Batla House,
Okhla, Delhi. This ration card was allegedly obtained by him
through and with the connivance of Matloob Alam, who used
to run a Fair Price Shop at Okhla in the name of Matloob Store
and Mool Chand Sharma, who was the ration Inspector of that
area.
28. During his stay at Delhi, in response to a matrimonial
advertisement given by Rehmana Yusuf Farukhi, he contacted
her and offered to marry her. It is alleged that he persuaded her
to marry him, though she was sick and elder to him and joined
her in the conspiracy after paying her Rs. 2,80,000/-, which
was deposited in her bank account no. 5817 at State Bank of
India, Gazhi pur, Delhi. Later on, he allegedly married her on
8 th December 2000.
FIR No. 688/00, PS Kotwali
: 22 :
29. It is alleged that Md. Arif @ Ashfaq was also having a
mobile phone no. 9810263721, which was got recorded by him
in the Seven Star Motor Driving College with address A-18,
Gaffur Nagar, Okhla, New Delhi at the time of joining the
college for training. Later on mobile no. 9811242154 was
given to him by Abu Haider and he used it till November 2000.
Subsequently, he also purchased another mobile telephone with
number 9811278510. He also used to collect Hawala money
for Lashkar-e-Toiba and collected Rs. 13,40,000/- (Rs.
Thirteen lacs & forty thousand only) from Sabir @ Sabarulla
and Rs. 23,00,000/- (Rs. Twenty-three lacs only) from Sher
Zaman, which he used to deposit in the bank accounts no.
32263962 of M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad
Kawa and 32181669 of Farookh Ahmad Quasid, in Standard
Chartered Grindleys Bank, Cannaught Place, New Delhi, which
used to be withdrawn at Sri Nagar by accused Farukh Ahmad
Quasid and Nazir Ahmad Quasid for use in terrorist acts in
India. He also deposited some amount in his own account in
HDFC Bank, New Friends Colony, New Delhi.
30. On 07.12.2000, Abu Haider came to Delhi for carrying out
FIR No. 688/00, PS Kotwali
: 23 :
suicidal attacks at important places of Delhi and stayed at G-
73, Muradi Road, Okhla, New Delhi. On 11.12.2000, Abu
Bilal spoke to Md. Arif @ Ashfaq on his moblie telephone
number 9811278510 and told him that he along with two
fidayeens (members of suicidal squad) would be coming to
Delhi. On 13.12.2000, Abu Bilal along with fidayeens Abu
Shakur and Abu Shahid, all Pakistan national and members of
Lashkar-e-Toiba came to Delhi armed with AK-56 rifles, four
extra magazines and six hand-grenades and stayed at G-73,
Muradi Road, Okhla, New Delhi. It is alleged that they were
instructed by Lashkar-e-Toiba to carry out attack on Army
camp inside Red Fort and for this purpose, they conducted
recce of the Red Fort. However, Abu Shahid fell sick and
returned to Kashmir. In his place, Abu Haider brought two
fidayeens Abu Saad and Abu Shamal. They also came
equipped with AK-56 Rifles, extra magazines and three hand-
grenades and stayed at G-73, Muradi Road, Delhi. On
21.12.2000 and morning of 22.12.2000, they conducted recce
of Red Fort.
31. In the evening of 22.12.2000, Md. Arif @ Ashfaq @ Abu
FIR No. 688/00, PS Kotwali
: 24 :
Hamal along with Abu Bilal, Abu Haider, Abu Shakur, Abu
Shamal and Abu Saad went to Red Fort armed with two AK-56
Rifles. Abu Saad and Abu Shamal also put on bandoleers and
carried four hand-grenades and extra magazines each. They
entered the Red Fort through Lahori Gate. Abu Saad and Abu
Shamal took out a rifle each from the bag and concealed under
their jackets. There they bought six tickets of English version
of Light & Sound Program. After watching the show, Md. Arif
@ Ashfaq , Abu Haider, Abu Bilal and Abu Shakur came out
of Red Fort at about 8.30 pm. However, as per the direction of
Md. Arif @ Ashfaq and Abu Bilal, Abu Saad and Abu Shamal
went to attack Army Camp while being armed with AK-56
Rifles and hand-grenades.
32. As per directions, these two militants attacked the Army
Camp inside Red Fort, where seventh Rajputana Rifles were
stationed and in the firing, killed three army jawans i.e.
Abdullah Thakur, Ashok Kumar and Uma Shankar. After
attacking the Army camp, Abu Saad and Abu Shamal jumped
out of the Red Fort from the rear wall of the Red Fort towards
Ring Road, where other four militants were waiting for them.
FIR No. 688/00, PS Kotwali
: 25 :
Abu Shamal threw his rifle, two Magazines, four hand-
grenades, a knife and bandoleer in the bushes near the rear wall
of the Red Fort and Abu Saad threw his rifle near Vijaya Ghat.
A cap and rope, which were purchased for jumping the wall of
the Red Fort, were also thrown near the rear wall of the Red
Fort. Md. Arif @ Ashfaq informed B.B.C. Delhi and Sri
Nagar about the attack on Red Fort by Lashkar-e-Toiba from
his telephone no. 9811278510. Thereafter, all six returned to
Muradi Road hideout. It is alleged that the attack on the Red
Fort was ordered by Abu Suffian, who was then Distt.
Commander, Lashkar-e-Toiba, Sri Nagar. On 24.12.2000, Abu
Bilal, Abu Haider, Abu Saad and Abu Shakur left Delhi for Sri
Nagar. However, Abu Shamal was left at the Muradi Road
hideout for keeping a watch on the situation.
33. Accused Sabir @ Sabarulla, Sher Zaman (both Afgan
nationals) staying at Delhi, Abu Suffian (Pak National), Abu
Bilal Kawa, brother-in-law of Farukh Ahmad Quasid, Jahur
Ahmad Quasid and Attruddin, a resident of Lucknow are also
alleged to be party to the conspiracy, but could not be
apprehended. Accused Attruddin used to be in contact with
FIR No. 688/00, PS Kotwali
: 26 :
Abu Haider, Abu Suffian and Md. Arif @ Ashfaq . He even
joined Abu Suffian in Kashmir for fighting against the
Security forces. He remained in constant telephonic contact
with Md. Arif. Jahur Ahmad Quasid also provided shelter to
Abu Bilal, Abu Haider, Abu Saad, Abu Shakar, Abu Suffian,
Abu Shahid, Abu Shamal and Md. Arif @ Ashfaq @ Abu
Hamad at his residence in Urdu Bazar, Fateh Kadal, Sri Nagar.
Accused Sabir @ Sabarulla, Sher Zaman, Abu Bilal, Abu
Haider, Abu Shakar. Abu Saad, Jahur Ahmed Quasaid, Bilal
Ahmad Kawa and Attruddin were declared proclaimed
offender. Accused Abu Shamal, Abu Suffian and Abu Bilal
were shot dead in different encounters.
34. As already referred to above, a paper-slip with telephone no.
9811278510 written on it, fell out of the pocket of Abu Saad
near the wall of the Red Fort at the time of jumping, which was
given to him for contacting Abu Haider and Md. Arif @
Ashfaq in case of need. On the basis of this telephone,
accused Md. Arif @ Ashfaq was arrested in the early hours of
26.12.2000 from his hideout at 308-A, DDA Flats, Gazhipur,
Delhi. On the basis of information provided by accused Md.
FIR No. 688/00, PS Kotwali
: 27 :
Arif, Abu Shamal was killed in an encounter on the same at G-
73, Muradi Road and AK-56 rifle & four hand-grenades was
recovered behind the Red Fort and three hand-grenades were
recovered from the area of Jamia Milia University. One AK-
56 rifle along with ammunitions were recovered on 23.12.2000
itself from Vijaya Ghat, on the basis of information provide by
public person. Other accused were arrested subsequently as per
information provided by accused Md. Arif @ Ashfaq . Arms,
ammunition, hand-grenades and other objects and exhibits
recovered and seized in the case, were sealed and deposited in
the Mal Khana on the respective dates of recovery. Similarly,
all samples lifted in the case were also sealed and deposited in
the Mal Khana.
35. In the course of investigation, documents regarding driving
licence, ration card and bank accounts were collected. Record
of transactions and the money deposited in the bank accounts
of Rehmana Yusuf Farukhi, Md. Arif, Nazir Sons, Bilal Ahmad
Qawa and Farukh Ahmad Quasid were also obtained, specimen
signatures of all accused were collected and sent to the
laboratory for examination. The samples collected from the
FIR No. 688/00, PS Kotwali
: 28 :
spot as well as arms, ammunitions and hand-grenades
recovered were also sent for examination to the CFSL. Results
of the examination of the handwriting of various accused as
well as of arms, ammunitions, hand-grenades and various
samples lifted from the spot were collected from the respective
laboratories. Call details of various telephones were obtained
and compared.
36. Sanctions under Section 7 of Explosive Substances Act, 39
Arms Act and Section 196 Cr.P.C were obtained against the
accused from the respective Authorities and Delhi Govt.
Complaints were also filed by ACP M.D. Mehta u/s 188 IPC
against accused Sadakat Ali and under Section 195 Cr.P.C., by
Col. A. Mohan of Rajputana Rifles.
37. In the course of investigation, disclosure statements of the
accused were also record and some recoveries were effected
consequent thereto, photographs were collected and placed on
record, statements of witnesses were recorded and investigation
was completed. Initial investigation of this case was conducted
by Ins. Roop Lal and thereafter, it was transferred to Ins. Hawa
Singh. Finally, the investigation of this case was handed over
FIR No. 688/00, PS Kotwali
: 29 :
to Ins. Surender Kumar Sund.
38. On the conclusion of the investigation, challan against
accused Rehmana Yusuf Farukhi, Shahanshah Alam, Babar
Mohsin, Devender Singh and Rajiv Malhotra was filed in the
court on 23.02.2001. Challan against accused Md. Arif @
Ashfaq was filed in the court on 24.03.2001. Challan against
accused Mool Chand Sharma was filed in the court on
16.06.2001. Challan against accused Matloob Alam was filed
in the court on 21.06.2001. Challan against accused Nazir
Ahmad Quasid and Farukh Ahmad Quasid were filed in the
court on 28.06.2001 . Challan against accused Sadakat Ali
was filed in the court on 07.12.2001.
39. Separate charge sheet was also filed against the proclaimed
offenders in the court on 18.10.2001. Similarly, a
supplementary charge sheet was also filed against accused
Attruddin (since P.O.) on 05.12.2001.
40. On recovery of pistol & six cartridges from accused Md. Arif
@ Ashfaq at the time of his arrest on 26.12.2000, FIR No.
419/00, u/s 25 Arms Act, Police Station Kalyan Puri was
registered and its separate charge sheet was filed in the court on
FIR No. 688/00, PS Kotwali
: 30 :
20.02.2001. Similarly, on the recovery of three hand-grenades
at the instance of Md. Arif @ Ashfaq on 01.01.2001 from the
area of Jamia Milia University, FIR no. 03/2001, u/s 4/5 of
Explosive Substances Act, Police Station New Friends Colony
was registered and its charge sheet was filed in the court on
29.03.2001.
41. In the course of investigation of FIR No. 688/00, Police
Station Kotwali, it was revealed that ration card of accused Md.
Arif @ Ashfaq allegedly issued from the Food & Supply
Office, Circle-6, Okhla, at the address of 17/12, Batla House,
New Delhi was forged one and was not issued from the office.
It is alleged that it was revealed that accused Matloob Alam in
connivance with some other persons was issuing forged ration
cards to public persons with fake name and addresses after
charging money from them. In this way, he was cheating
public persons after committing forgery and was also using
forged documents. It is alleged that he had forged around 32
ration cards and as such cheated various public persons. On
this information, FIR no. 65/01, Police Station New Friends
Colony was registered u/s 420/468/471/474/34 IPC. In this
FIR No. 688/00, PS Kotwali
: 31 :
case also, various ration cards were seized, specimen
handwriting of the officials of Food & Supply Office as well as
accused Matloob Alam were obtained and sent for
examination. Result of the examination of the specimen and
questioned documents was obtained, statements of the
witnesses were recorded and investigation was completed and
charge-sheet was filed in the court on 07.07.2001.
42. After supplying copies etc., the first challan was committed
to the court of Sessions vide order dated 15.05.2001. Thereafter
other challans were also committed to the court of Sessions.
43. Vide order dated 11.09.2001, trial of FIR No. 419/00, Police
Station Kalyan Puri, u/s 25 Arms Act and FIR No. 3/01, Police
Station New Friends Colony u/s 4/5 Explosive Substances Act
were transferred by the learned Sessions Judge Delhi to this
court as the recoveries were effected in the course of
investigation of FIR no. 688/00, Police Station Kotwali.
Similarly, FIR No. 65/01, u/s 420/468/471/474/34 IPC, Police
Station New Friends Colony was also committed to the court of
Sessions u/s 323 Cr.P.C. by the learned Metropolistan
Magistrate vide order dated 17.09.2001. The trial of this case
FIR No. 688/00, PS Kotwali
: 32 :
was also assigned to this court.
(B) CHARGES :-
44. Vide order dated 04.12.2002, my learned Predecessor was
pleased to order framing of charge against all accused. For the
sake of convenience and ready reference, the charges are
extracted below. The charges were read over and explained to
each of the accused to which they pleaded not guilty and
claimed trial.
45. (a) Accused
(1) Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram
(2) Rehmana Yusuf Farooqui d/o Nawab Mohammed
Yusuf Farooqui
(3) Nazir Ahmad Qasid s/o Gulam Mohammad Qasid
(4) Farooq Ahmed Qasid s/o Nazir Ahmad Qasid
(5) Babar Mohsin Baghwala s/o Jaleel Ahmad
(6) Devender Singh s/o Bhawani Singh
(7) Shehenshah Alam s/o Late Sh. Anwar Hussain
(8) Rajeev Kumar Malhotra s/o Kishan Chand
(9) Matloob Alam s/o Mehboob Alam
(10) Mool Chand Sharma s/o Har Chand
(11) Sadakat Ali s/o Abdul Ali
stand charged as under :-
“ That you all alongwith your co-accused
FIR No. 688/00, PS Kotwali
: 33 :
persons Sabir @ Saharullah, Sher Jaman, Abu Haider,
Abu Shakur, Abu Saad, Bilal Ahmad Qawa, Jahoor
Ahmad Qasid, Atharuddin @ Athar (now proclaimed
offenders) are the members of Lashker-e-Toiba, a
militant organization which carries out the disruptive
activities and between or about December 99 to
22.12.00 you all have hatched a criminal conspiracy
and collected arms, ammunitions and explosive
substances with a view to commit murder of all those
persons, who had come in your way with intent to wage
war against the Government of India and to over-awe
the Government of India by the use of arms,
ammunitions and explosive substances collected by you
and have procured driving licence, on the basis of
forged documents and forged ration cards, cheque
book, ATM card of HDFC Bank, cash deposit receipts,
photo-album of (allegbed) alleged marriage with
Rehmana Faruki and mobile phone and opened
accounts in different banks and received Hawala
money and have also taken shelter at different places
and also acquainted with the topography of Delhi to
execute conspiracy and in the execution of the said
conspiracy had used lethal weapons while committing
the crime and Mohd. Ashfak @ Arif also got recovered
the weapons which were in his possession and also got
recovered three hand grenades from Jamia Milia
University Complex and also got recovered AK-57
FIR No. 688/00, PS Kotwali
: 34 :
(AK-56) rifle, two Magazines, 32 live cartridges, two
live hand grenades and khaki uniforms from house no.
D-73 (G-73), Murati (Muradi) Road, Batla House
whereas co-accused Abu Samal had taken shelter in the
said house and also got recovered Rs. 1,11,000/- from
the houses of your co-accused received through
Hawala transaction from to be used to execute the
conspiracy and with a view to enter Red Fort
unlawfully and used lethal weapons and caused the
death of Uma Shankar, Abdullah Thakur and Ashok
Kumar, all public servants on duty who had resisted the
entry and thereby committed an offence punishable u/s
120 B IPC within the cognizance of this court.”
45. (b) Accused Faruk Ahmad Qasid s/o Nazir Ahmad
Qasid also stands charged as under :-
“ That between or about December 1999 to
22.12.2000 at house in Bagat Kannipura, Sri Nagar,
Jammu & Kashmir, you intentionally and knowingly
(consipred) conspired with co-accused Md. Ashfak @
Arif to provide him and other militants shelter and
harboured or concealed him with intention of
preventing him from being apprehended and thereby
committed an offence punishable u/s 216 read with
Section 120-B IPC, within the cognizance of this court.
“
45. (c) Accused (1) Md. Ashfak @ Mohd. Arif s/o Md. Akram
(2) Nazir Ahmad Qasid s/o Ghulam Ahmad Qasid and (3)
FIR No. 688/00, PS Kotwali
: 35 :
Faruk Ahmad Qasid also stand charged as under :-
“ That between or about December 1999 to
22.12.2000 at Pakistan, Jammu & Kashmir and within
India particularly in Delhi, you all conspired jointly
and severally to wage war against the Govt. of India or
conspired to over-awe the Govt. of Delhi by using
criminal force such as the use of AK-56 & AK-47
rifles, hand grenades and cartridges and with a view to
cause explosion of the grenades and for that purpose
you collected arms, ammunition and explosive
substances which were recovered from your possession
and on your pointing out and thereby you committed
an offence punishable u/s 121A IPC within the
cognizance of this court.”
45. (d) Accused (1) Md. Ashfak @ Mohd. Arif s/o Md. Akram
(2) Nazir Ahmad Qasid s/o Ghulam Ahmad Qasid and (3)
Faruk Ahmad Qasid also stand charged as under :-
“ That you all in furtherance of conspiracy as
mentioned in the above charge waged war between on
or about December 1999 to 22.12.2000 against the
Government of India by the use of AK-56 & AK-47
rifles, hand grenades and cartridges and intentionally
committed murder of public servants namely Uma
Shanker, Abdullah Thakur and Ashok Kumar with a
view to over-awe the Government of India and thereby
committed an offence punishable u/s 121 IPC within
the cognizance of this court.”
FIR No. 688/00, PS Kotwali
: 36 :
45. (e) Accused Nazir Ahmad Qasid s/o Gulam Mohammad
Qasid also stands charged as under :-
“ That between or about December 99 to 22.12.00
at house in Bagat Kannipura, Sri Nagar, Jammu &
Kashmir, you intentionally and knowingly conspired
with co-accused Md. Ashfak @ Arif to provide him
shelter and harboured or concealed him with intention
of preventing him from being apprehended and thereby
committed an offence punishable u/s 216 read with
Section 120-B IPC, within the cognizance of this court.
“
45. (f) Accused Mohsin Babbar s/o Jalleel Ahmad also stands
charged as under :-
“ That between or about December 1999 to
22.12.2000 at house No. 751/9, Jama Masjid, Delhi,
you intentionally and knowingly conspired with co-
accused Md. Ashfak @ Arif to provide him shelter and
harboured or concealed him with intention of
preventing him from being apprehended and thereby
committed an offence punishable u/s 216 read with
Section 120-B IPC, within the cognizance of this
court.”
45.(g)Accused Rehmana Faruki d/o Nawab Mohammad Yusuf
Faruki also stands charged as under :-
“ That between or about December 1999 to
22.12.2000 at house No. 308-A, DDA Flats, Gazhipur,
Delhi, you intentionally and knowingly conspired with
FIR No. 688/00, PS Kotwali
: 37 :
co-accused Md. Ashfak @ Arif to provide him shelter
and harboured or concealed him with intention of
preventing him from being apprehended and thereby
committed an offence punishable u/s 216 read with
Section 120-B IPC, within the cognizance of this
court.”
45. (h) Accused Sadakat Ali s/o Abdul Ali also stands charged
as under :-
“ That between or about December 99 to 22.12.00
at house No. 18-C, Gafur Nagar, Okhla, Delhi, you
intentionally and knowingly conspired with co-
accused Mohd. Arif @ Ashfak to provide him shelter
and harboured or concealed him with intention of
preventing him from being apprehended and thereby
committed an offence punishable u/s 216 read with
Section 120-B IPC, within the cognizance of this
court.”
45. (i) Accused Sadakat Ali s/o Abdul Ali also stands charged
as under :-
“ That between or about December 1999 to
22.12.2000 at house No. 18-C, Gafur Nagar, Okhla,
Delhi, within the jurisdiction of P.S. New Friends
Colony, you being landlord of the said premises had
given said premises on rent to Md. Ashfak @ Arif to
run the Cyber Cafe in the name of (kknowledge)
Knowledge Plus in order to establish a basis A(base)
of Lashkerre Toiba (Lashker-e-Toiba) in Delhi and
FIR No. 688/00, PS Kotwali
: 38 :
failed to give information to the police regarding
renting out the said premises and thus violated the
prohibitory order of Commissioner of Police No.
26059-156/XI, dated 20.12.2000 requiring that no
landlord or owner of the house under the jurisdiction
of P.S. specified in the Schedule of this order shall let
out or rent out to any person unless and until has
furnished the particulars of the said tenant to the
Station House Officer or the Police Station concerned
and you failed to provide the said information to the
said Station House Officer and thereby committed an
offence punishable u/s 188 of the IPC, within the
cognizance of this court.
Secondly, on the same date, time and place you
gave premises No. 18-C, Gafur Nagar, Okhla, Delhi on
rent to accused Md. Arif, a national of Pakistan who
has entered into India without valid documents and
had stayed in India without valid Visa or permission
and you had accommodated said foreigner at the above
said premises occupied and controlled by you and you
have failed to inform to the nearest police station about
the stay of the foreigner at your premises within 24
hours about the presence of such foreigner and thereby
you contravened the provisions of the foreigner's
report to the police order dated 7.8.2001 Ministry of
Home Affaris and thereby committed an offence
punishable u/s 14 of the Foreigners Act, within the
FIR No. 688/00, PS Kotwali
: 39 :
cognizance of this court.”
45. (j) Accused
(1) Devender Singh s/o Bhawani Singh
(2) Shehenshah Alam s/o Anwar Hussain
(3) Rajiv Kumar Malhotra s/o Kishan Chand
(4) Matloob Alam s/o Mehboob Alam
(5) Mool Chand s/o Har Chand, and,
(6) Mohd. Ashfak @ Arif s/o Mohd. Akram
stand charged as under :-
“ That between or about December 1999 to
22.12.2000, you all Devender Singh, Shehanshah
Alam, Rajiv Kumar Malhotra, Matloob Alam and Mool
Chand have conspired with accused Md. Ashfak @ Arif
to execute the conspiracy and for the execution of said
conspiracy helped him in procuring driving licence on
the basis of forged documents and forged ration card
with a view to create documentary evidence for
accused Md. Arif @ Ashfaq for his permanent stay in
India knowing well that he is a national of Pakistan
and dishonestly induced the officials of motor driving
licensing authority and civil supply deptt. to deliver the
driving licence and ration card in the name of said co-
accused Md. Ashfak @ Arif which is capable of being
converted into valuable security and have intentionally
concealed material information with a view to cheat
the above said Government/Departments/Officers and
thereby committed an offence punishable u/s 420 read
FIR No. 688/00, PS Kotwali
: 40 :
with Section 120B IPC within the cognizance of this
court.
Secondly, on the same date, time and place, you
Devender Singh, Shehanshah Alam, Rajiv Kumar
Malhotra, Matloob Alam and Mool Chand along with
your above mentioned co-accused Md. Ashfak @ Arif
have conspired to forge documents as mentioned above
with intent that these documents shall be used for the
purpose of cheating the above mentioned
government/Departments intenting (intending) that
these shall be used for the purposes of cheating and
thereby committed an offence punishable u/s 468 read
with Section 120B IPC, within the cognizance of this
court.
Thirdly, on the same date, time and place you
Devender Singh, Shehanshah Alam, Rajiv Kumar
Malhotra, Matloob Alam and Mool Chand alongwith
your above mentioned co-accused Md. Ashfak @ Arif
have conspired and fraudulently and dishonestly used
the above said documents as genuine which you knew
or had reason to believe at the time you used them to
be forged documents and you have thereby committed
an offence punishable u/s 471 read with Section 120B
IPC, within the cognizance of this court.
Fourthly, on the same date, time and
place you Devender Singh, Shehanshah Alam, Rajiv
Kumar Malhotra, Matloob Alam and Mool Chand
FIR No. 688/00, PS Kotwali
: 41 :
alongwith your above mentioned co-accused Md.
Ashfak @ Arif have conspired and have knowingly and
intentionally used the forged documents as genuine
and intending that the same shall be fraudulently and
dishonestly used as genuine and procured ration card
and driving licence and that your co-accused Md. Arif
@ Ashfaq was having possession of aforesaid valuable
documents with intent to use as genuine for the
unlawful purpose and thereby committed an offence
punishable u/s 474 read with Section 120B IPC, within
the cognizance of this court. “
45. (k) Accused Md. Ashfak @ Md. Arif s/o Md. Akram also
stands charged as under :-
“That on 22.12.2000 at about 9.05 PM at Red
Fort, within the jurisdiction of P.S. Kotwali, you
conspired with your co-accused Abu Haider, Abu Bilal,
Abu Saad, Abu Shuker and Abu Shamal (all proclaimed
offenders) to commit the murder and intentionally caused
the death of Abdullah Thakur, Uma Shanker and Ashok
Kumar (now deceased) and thereby committed an offence
punishable u/s 302 read with Section 120B IPC, within
the cognizance of this court.
Secondly, on the aforesaid date, time and
place, you conspired along with your co-accused Abu
Haider, Abu Bilal, Abu Saad, Abu Shuker and Abu
Shamal (all proclaimed offenders) and voluntarily
obstructed the public servants namely Abdullah Thakur,
FIR No. 688/00, PS Kotwali
: 42 :
Uma Shanker and Ashok Kumar (now deceased) in
discharge of their duties as public servants and thereby
committed an offence punishable u/s 186 read with
Section 120B IPC, within the cognizance of this court.
Thirdly, on the aforesaid date, time and place,
you conspired with your co-accused Abu Haider, Abu
Bilal, Abu Saad, Abu Shuker and Abu Shamal (all
proclaimed offenders) and assaulted and used criminal
force against Abdullah Thakur, Uma Shanker and Ashok
Kumar (now deceased) in the execution of their duties as
such public servants or with intent to prevent or deter
them from discharging of their duties as such public
servants and thereby committed an offence punishable u/s
353 read with Section 120B IPC, within the cognizance of
this court.
Fourthly, that in between 22.12.2000 to
26.12.2000 you were found in possession while entering
in house no. 308-A, DDA Flats, Gazhipur, Delhi, within
the jurisdiction of P.S. Kalyan Puri one pistol of 7.63 mm
bore having engraved upon it 51010255-636 and six live
cartridges of 7.63 mm bore (having five cartridges in the
magazine and one in chamber) without any requisite
licence and in contravention of provisions of Section 3 of
the Arms Act and thereby committed an offence
punishable u/s 25/27 of the Arms Act, within the
cognizance of this court.
Fifthly, in between 22.12.2000 and 01.01.2001
FIR No. 688/00, PS Kotwali
: 43 :
at Jamia Milia University, between staff quarters and
boundary wall, within the jurisdiction of PS New Friends
Colony, you were unlawfully and maliciously found in
possession of three hand grenades of green ARGES which
were individually or in combination are explosive
substances and you kept the same to cause explosion or
conspired to cause explosion in Delhi of a nature likely to
endanger life or to cause serious injury to property and
thereby committed an offence punishable u/s 4/5 of the
Explosive Substances Act, within the cognizance of this
court.
“Sixthly, that on or before 22.12.2000 you
being the citizen of Pakistan have entered into India
unlawfully without any valid document i.e. Passport,
permit or permission and thereby committed an offence
punishable u/s 14 of the Foreigners Act, within the
cognizance of this court.”
46. Charge against accused Matloob Alam in FIR No. 65/01 was
ordered to be framed on 17.02.2003, which was also read over
and explained to him, to which he pleaded not guilty and
claimed trial. The charge is as under :-
“ That on or before 10.05.2000, you dishonestly
induced Naseem Khan, Haroon Ali, Mohd. Arshad,
Imam Khan, Ibadur Rehman, Smt. Akhtari Begum,
Maqsoor Hassan, Haroon, Arshad Taslim, Afzal,
FIR No. 688/00, PS Kotwali
: 44 :
Shakil, Anwar Hussain, Mohd. Murazuddin, Azmal
Imam Khan, Shanaj and others whose names have been
mentioned in the charge sheet to deliver for
consideration to get them ration-cards from the
Department of Food & Supply which was a valuable
property of the said department, or which can be
converted into valuable property by drawing the ration
card on the basis of said forged ration cards, which
you knew or have reason to believe that the same were
never issued by the Food & Supply Department and
have thus cheated all the abovestated persons and
thereby committed an offence punishable u/s 420 IPC,
within the cognizance of this court.
Secondly, on or before of the abovestated time,
date and place, you have forged the above said ration
cards knowing or having reason to believe that these
are the valuable documents and with intent that these
documents shall be used for purposes of cheating the
Food & Supply Department for withdrawing the ration
cards (ration) by the above-stated persons on the basis
of above said documents, and thereby you have
committed an offence punishable u/s 468 IPC, within
the cognizance of this court.
Thirdly, on the same day, time and place, you
knowingly and intentionally used the forged documents
as genuine, intending that same shall be fradulently
(fraudulently) and dishonestly used as genuine and
FIR No. 688/00, PS Kotwali
: 45 :
procured blank ration cards in order to prepare forged
ration cards on the names of abovestated persons and
thereby committed an offence punishable u/s 474 IPC,
within the cognizance of this court.”
47. On the application dated 22.10.2003 filed by accused Farukh
Ahmad Quasid and Nazir Ahmad Quasid, the charges were
ordered to be amended vide order dated 31.10.2003 and
amended charges were framed on 01.11.2003.
(C) EVIDENCE :-
48.Vide orders dated 07.01.2003 and 17.02.2003, evidence of
FIRs no. 419/00, 3/01, and 65/01 was ordered to be recorded
only in the main file i.e. in FIR no. 688/00.
49. In support of its case, prosecution has examined 235
witnesses in all.
50. PW-1 is Sh. Azad Khalid. He is a resident of 102, Kela
Bhatta, Ghaziabad, U.P since birth and has a ration card Ex.
PW-1/1. His father Sh. Mohd. Khalid Sadiqui also resides at
the same address and has ration card Ex. PW-1/2. He deposed
that no person by the name of Ashfaq Ahmad s/o Akram Khan
ever resided at the aforesaid address.
51. PW-2 is Sh. Yash Pal Singh Rana. He is inspector with
FIR No. 688/00, PS Kotwali
: 46 :
Department of Food & Supply, Ghaziabad, U.P. House No.
102, Kela Bhatta, Ghaziabad falls within his jurisdiction. He
deposed that ration card Ex. PW-1/1 was issued by his
department. He further deposed that no ration card in the name
of Ashfaq Ahmad s/o Akram Khan was issued at the aforesaid
address by his department. His report in this regard is Ex. PW-
2/A.
52. PW-3 is Sh. Rajbir Singh. He is Area Rationing Officer, Food
& Supply Department, Ghaziabad. Area of house no. 102,
Kela Bhatta, Ghaziabad falls within his jurisdiction. He has
corroborated the version of PW-2 Sh. Yashpal Singh Rana. He
also placed a photocopy of ration card no. 756928, Ex. PW-3/1
on record.
FIR No. 688/00, PS Kotwali
: 47 :
53. PW-4 is Sh. Yunus Khan. He deposed that he did his M.Sc,
in 1996 and has cleared his B.Ed in 1997. At that time,
accused Babar was a student of MSW and he is known to him.
Thereafter, he did not support the prosecution version and was
cross-examined by the learned Addl. Public Prosecutor. In the
cross-examination, he denied that accused Md. Arif @ Ashfaq
used to meet Babar. He did not identify accused Md. Arif @
Ashfaq .
54. PW-5 is Pradeep Kumar Srivastava. He is a clerk in
Ghaziabad Transport Authority. He deposed that on
14.02.2001, Mahesh Kumar Diwedi, a clerk posted with him,
produced the original licence forms of Chand s/o Kallu,
Rajinder Singh s/o Sh. Nishlesh Singh and Mahender Kumar
s/o Ram Chand and these forms were bearing stamp of
Akashdeep Motor Driving College. These forms were seized
by the police vide Ex. PW-5/A. Their application for
permanent driving licence and their learning licences are Exs.
PW-17/A to C and 17/D to F respectively.
55. PW-6 is Sh. Narain Singh. He is a clerk of Sarai Kale Khan
Authority, Delhi. He deposed that as per the record of the
FIR No. 688/00, PS Kotwali
: 48 :
aforesaid authority, no learning licence bearing no. 9091 was
ever issued in the name of Ashfaq Ahmad s/o Akram Khan r/o
B-17, Jung Pura, New Delhi. He further deposed that learning
licence mark A issued in the name of aforesaid person does not
bear the signatures of any of the officer posted in the Authority.
56. PW-7 is Sh. S.R. Raghav. At the relevant time, he was
posted as Food & Supply Officer, in circle-6, Okhla, New
Delhi. He deposed that ration card No. 258754, in the name of
Ashfaq Ahmad Khan s/o M. Akram Khan r/o F-17/12, Batla
House, Okhla, New Delhi-25 was not issued from his office.
His report in this regard is Ex. PW-7/A. He further deposed
that he had given a report regarding eight ration cards and
about their genuineness. He stated that five ration cards of 'B'
series were not issued from his office. However, three ration
cards of 'E' series were issued from his office. Five ration cards
of 'B' series are Ex. PW-154/A, PW-184/B, PW-178/B, PW-
205/A & B and three ration cards of 'E' series are Ex. PW-
155/A, PW-139/A and PW-128/1. His report is Ex. PW-7/B.
He also deposed that ration card No. 258785 Ex. PW-203/A of
'B' series was not issued from his office. His report is Ex. PW-
FIR No. 688/00, PS Kotwali
: 49 :
7/C. Report regarding seven ration cards of 'B' series was
prepared by his office and same is Ex. PW-7/D. He also
deposed that rubber stamp on Ex. PW-191/F to K and on Ex.
PW-191/L to O may be of his office. Seal impression on Ex.
PW-191/A to E are of their office seal.
57. PW-8 is Ins. Jogender Singh. On 15.02.2001, he was posted
as Incharge of Tis Hazari Lock Up. On that day, Ins. Surender
Sund along with SI Amardeep Sehgal came with permission
from the court for taking signatures of accused Rehmana Yusuf
Faruki and Devender Singh. He obtained the signatures of
these two accused in his presence. Signatures of Rehmana
Yusuf Faruki are Ex. PW-8/1 to 8 and signatures of accused
Devender Singh were taken on six sheets and these are Ex.
PW-8/9 to 14.
58. PW-9 is Sh. P.R. Sharma. He is a retired employee of State
Bank of India. On 31.01.2001, he was posted as Senior
Assistant in Gazhipur Dairy Branch of the aforesaid bank and
Sh. O.P. Singh was Branch Manager. He deposed that one
Rehmana Yusuf Farukhi had opened a saving bank account
bearing No. 5817 in the aforesaid branch. He had given
FIR No. 688/00, PS Kotwali
: 50 :
photocopy of account opening form, signature card and
original vouchers regarding the four deposits of Rs. 50,000/-,
1,50,000/-, 52,500/- and 30,000/- made in the said account.
These documents were taken into possession by the IO vide
memo Ex. PW-9/A. The photocopy of account opening form
is Ex. PW-9/B, original four vouchers are Exs. PW-9/C to F, a
letter of Branch Manager Sh. O.P. Singh is Ex. PW-9/G and
photocopy of the specimen signature is Ex. PW-9/H.
59. PW-10 is ASI Chand Singh. He joined the investigation of
the instant case on 07.01.2001. On that day, accused Babar
Mohsin was in police custody. He along with Ins. Surender
Sund, SI Abhinender Jain and accused went to his house.
There, accused pointed out a room, in which he had sheltered
accused Md. Arif @ Ashfaq at his house No. 751/9, Jama
Masjid and pointing out memo Ex. PW-10/A was prepared.
They also recovered motor-cycle No. DL-2SK-2809 from his
house and was seized vide memo PW-10/B. In the dicky of
said motor-cycle, some papers were found and one of them was
written in Urdu. This paper was got read over from a passer-by
and now is Ex. PW-10/C. It was seized vide memo Ex. PW-
FIR No. 688/00, PS Kotwali
: 51 :
10/D. This letter was addressed by Ashfaq Ahmad to accused
Babar. Thereafter, he also pointed out a house bearing No.
564/B, Gali No. 22 A, Zakir Nagar, Delhi, which he got rented
to Md. Arif @ Ashfaq through one Yunus. Pointing out memo
in this regard is Ex. PW-10/E. RC of the said motor-cycle is
Ex. PW-10/F and its key is Ex. K-1. Motor-cycle is Ex. M-1.
60. PW-11 is HC Saju En. On 19.10.2001, he was posted as
Reader to the SHO, Police Station New Friends Colony for the
last two years. His duty included receiving dak and putting the
same before the SHO. As per his record, accused Sadakat Ali
did not make any application giving information for renting his
house No. 18-C, Gafoor Nagar. There was a notification by the
police requiring such information.
61. PW-12 is HC Surender Singh. He deposed that on
01.02.2001, he was posted in third Batallian, DAP. On that
day, he had brought accused Devender Singh to Court where
IO Ins. Surender Sund moved an application for permission for
obtaining specimen signatures of accused Devender Singh. SI
Amardeep Sehgal was also with him. Specimen handwriting
and signatures of accused Devender Singh were taken on three
FIR No. 688/00, PS Kotwali
: 52 :
separate pages in his presencc and same were now Ex. PW-
12/A to C.
62. PW-13 is Ins. Rajender Singh. He joined the investigation of
the present case on 03.01.2001, when he along with SI
Shamsher Singh went to RTO Ghaziabad to verify the
genuineness of driving licence of accused Md. Ashfaq. There,
they met with Smt. Mamta Sharma ARTO and asked her about
the driving licence of accused Ashfaq. She informed them that
driving licence was genuine and issued from their office.
They also seized from their office form no. 4 of Mohd. Ashfaq,
learning licence issued from Sheikh Sarai Transport Authority,
form no. 2 for renewal of learning licence and photocopy of
ration-card of Md. Ashfaq vide memo Ex. PW-13/B. These
documents were the photocopies of original documents.
63. PW-14 is Sh. U.C. Jain. He is the SDO of Telephone
Department. He deposed that telephone no. 3355751 is
installed in AIFCS, Rafi Marg, Delhi in the name of British
Broadcasting Corporation. On the application of the IO, he
gave his report vide Ex. PW-14/A.
64. PW-15 is HC Virender Kumar. On 22.12.2000, he was
FIR No. 688/00, PS Kotwali
: 53 :
working as duty officer in Police Station Kotwali from 5.00 pm
to 1.00 am and had taken charge of his duty vide DD entry No.
12-A Ex. PW-15/A. At about 9.25 pm, he received information
that some unknown persons had fired shots inside Red Fort and
thereafter escaped towards the back of the Red Fort i.e towards
Ring Road. This information was recorded vide DD entry No.
19-A Ex. PW-15/B and handed over to SI Rajender Singh for
necessary action. He also informed Addl. SHO Ins. Roop Lal.
At about 11.25 pm, he was informed by ASI Har Narain from
Police Station Chankaya Puri that Naik Ashok Kumar, who
was injured in shoot-out inside Red Fort and was admitted in
Armed Forces Hospital, Dalhoussie Road, had expired and he
recorded this information vide DD entry No. 22-A Ex. PW-
15/C and sent over the same to SI Rajender Singh through Ct.
Manoj. At about 11.30 pm, he received a writing Ex. PW-
15/D from SI Rajender Singh, which was sent by Ins. Roop
Lal, on which he registered FIR no. 688/00, carbon copy of
which is Ex. PW-15/E. He also recorded DD no. 23-A Ex.
PW-15/F regarding registration of the case and when the
registration of the case was concluded, DD entry No. 25-A Ex.
FIR No. 688/00, PS Kotwali
: 54 :
PW-15/G was recorded. Copies of the FIRs were also sent to
senior officials. A copy of the FIR was also sent to the IO
through SI Rajender Singh.
65. PW-16 is Smt. Mamta Sharma, ARTO, Ghaziabad. She has
corroborated the version of PW-13 Ins. Rajender Singh
regarding seizure of documents concerning the driving licence
of accused Md. Ashfaq. She has proved the original driving
licence Ex. PW-13/1 and these documents were seized vide
memo Ex. PW-13/B. She also deposed that form no. 4 is Ex.
PW-13/B, learning licence issued by Sheikh Sarai Authority is
Ex. PW-13/C, form no. 2 of Ashfaq Ahmad is Ex. PW-13/D
and photocopy of ration-card is Ex. PW-13/E. She also
deposed that form no. 4 Ex. PW-13/B bears the fact that fees
were paid and its receipt number as well as date. She also
deposed that her subordinate Mahesh Chand Trivedi had
informed her about the torn condition of Ex. PW-13/B. She
also deposed that she had passed the permanent driving licence
of Ashfaq Ahmad on 07.09.2000 and when she had signed the
document Ex. PW-13/B, it was complete and was not torn and
portion now torn bore the stamp of Akashdeep Motor Driving
FIR No. 688/00, PS Kotwali
: 55 :
School and official of Akashdeep had brought Ashfaq Ahmad
before her and as the documents were stamp marked with the
stamp of a driving school, no additional test was conducted.
66. PW-17 is Sh. Mahesh Kumar Trivedi. He is the junior clerk
of Ghaziabad Transport Authority. He has also corroborated
the version of PW-13 Ins. Rajender Singh and PW-16 Smt.
Mamta Sharma regarding the seizure of the documents of
Ashfaq Ahmad from Ghaziabad Transport Authority. He also
deposed that he had brought these documents to the office of
Smt. Mamta Sharma on being asked by her. He also deposed
that work of Akashdeep Motor Driving College was being
looked after by accused Shahanshah Alam. He had informed
Smt. Mamta Sharma about the torn condition of Ex. PW-13/B.
He also deposed that only Shahanshah Alam could have torn
the foot-part of document Ex. PW-13/B. He had also handed
over three more forms of Rajender, Surender and Kallu to Ins.
Surender Sund on 14.02.2001, which was seized by him vide
memo Ex. PW-5/A as well as forms no. 3 & 4 of Chand,
Rajender and Mahender. These documents are now Ex. PW-
17/A to D.
FIR No. 688/00, PS Kotwali
: 56 :
67. PW-18 is Sh. Braj Raj Krishan. He is clerk of Ghaziabad
Transport Authority. He deposed that M/s Star Motor Driving
College and Akashdeep Motor Driving College are registered
with the department and are situated at Ambedkar Road and
Raj Nagar respectively. They figure in the list Ex. PW-18/A.
68. PW-19 is HC Ashok Kumar. On 26.12.2000, he was working
as Mal Khana Moharar in Police Station Kalyan Puri. On that
day, SI Harender Singh deposited with him a sealed parcel
sealed with the seal of VP along with FSL Form in FIR No.
419/00, which was seized by Ins. Ved Parkash. He had also
deposited personal search items of accused Md. Ashfaq @ Abu
Hamad @ Md. Arif @ Ashfaq consisting of Rs. 1,000/- in
cash and a mobile phone of ESSAR. Entries were made by
him vide Ex. PW-19/A. On 02.01.2001, he sent the case
property to CFSL Malviya Nagar through Ct. Rameshwar for
examination by ballistic expert and made entry in this regard
vide Ex. PW-19/B and on 08.02.2001, the result was received
by him through Ct. Mahipal vide entry Ex. PW-19/C. On
14.05.2001, he handed over the cash as well as mobile phone to
Ins. Surender Sund as per the directions of the court and made
FIR No. 688/00, PS Kotwali
: 57 :
entry Ex. PW-19/D. A road certificate is Ex. PW-19/E and the
remnants of case property were received back vide Ex. PW-
19/F.
69. PW-20 is Sh. Nain Singh. He is the son of landlord of house
no. 97-A, Okhla Village, Delhi. He deposed that Azam Malik
used to reside as a tenant in his house and he had brought Md.
Ashfaq to his mother for renting out a room to him (Ashfaq).
His mother had rented out a room to Ashfaq on first floor on a
monthly rent of Rs. 1,200/- and he had informed them that he
hails from Jammu. After about a month, Ashfaq vacated their
house on being asked by them through Azam Malik.
70. PW-21 is Sh. Gian Chand Goel. He is owner of house No. G-
73, Munadi Road, Batla House, Delhi. He had rented out the
house to one Rashid on 06.12.2000 and thereafter on
07.12.2000, he brought two more boys and all the three boys
started residing on the first floor. He further deposed that many
boys including accused Ashfaq used to meet the three boys.
On 26.12.2000 police raided the aforesaid house, in which one
person was killed. He also deposed that Ashfaq was a friend of
Rashid.
FIR No. 688/00, PS Kotwali
: 58 :
71. PW-22 is Sh. Sanjeev Srivastava, branch manager of HDFC
Bank. He deposed that one Inspector came to his bank and
sought details of account no. 0891000024344. He received an
application Ex. PW-22/D from the Inspector, on which he
made endorsement Ex. PW-22/A and produced before him
account opening form Ex. PW-22/B, photocopy of driving
licence Ex. PW-22/C and statement of account Ex. PW-22/E
and same were seized vide memo Ex. PW-22/F.
72. PW-23 is Rishi Nanda, relationship manager of HDFC Bank,
New Friends Colony. New Delhi. He has corroborated version
of PW-22 Sh. Sanjeev Srivastava in all material particulars. He
also deposed that bank account of Ashfaq was opened on the
basis of driving licence.
73. PW-24 is ASI Jai Karan. On 01.01.2001, he was posted as
duty officer at Police Station, New Friends Colony. On that
day, he received a rukka Ex. PW-24/A sent by Ins. R.S. Bhasin
and registered the FIR No. 3/01, carbon copy of the same is Ex.
PW-24/B. Thereafter, the investigation of the case was
assigned to SI Sunder Lal.
74. PW-25 is Sh. Risalat Beg. He is a resident of house No.
FIR No. 688/00, PS Kotwali
: 59 :
564/22, Gali No. 22, Zakir Nagar, Okhla, Delhi. He had let out
one room of his house to one Yunus through Anwar. However,
he further deposed that Ashfaq and Babar never visited his
house for taking a room on rent in his house. He was cross-
examined by learned Special Public Prosecutor, wherein he
also denied that he had rented out a room of his house to
Ashfaq on a monthly rent of Rs. 1,500/-.
75. PW-26 is Ct. Yogender. On 01.03.2001, he was posted as
Naib Court of P.S. Kotwali in the court of Sh. A.K. Sarpal, the
then learned Metropolitan Magistrate, Delhi. On that day, a
sealed parcel was produced in the court from PS Kotwali on the
request of the IO Ins. Surender Sund and with the permission of
the court, same was opened and a visiting card with serial No.
44 was taken out, on which Raj Kumar Managing Partner and
Sabir was written. Telephone numbers 3969561 and
981034139 were also written. Visiting card is Ex. PW-26/A
and it was seized by the IO vide memo Ex. PW-26/B.
76. PW-27 is Sh. Subhash Gupta. On 29.12.2000, he was
working as relationship manager of Standard Chartered
Grindleys Bank, Cannaught Place, New Delhi. He deposed
FIR No. 688/00, PS Kotwali
: 60 :
that on 29.12.2000, Ins. Ved Parkash moved an application Ex.
PW-173/N for stopping of withdrawal from account No.
32263962 of M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad
Kawa and 32181669 of Farookh Ahmad Quasid and he issued
directions for stopping the withdrawal of above-mentioned
account. Ins. Ved Parkash also moved an application Ex. PW-
173/N-1 asking them to provide statement of account of the
accounts number referred to above as well as their account
opening forms, vouchers, cheque deposits and withdrawal slips.
The statements of accounts of Farukh Ahmad Quasid, M/s
Nazir Sons and Bilal Ahmad Quwa are Exs. PW-27/A to C.
On 30.12.2000 Ins. Ved Prakash moved an application Ex.
PW-173/O for obtaining vouchers vide which cash was
deposited in the aforesaid three accounts and he gave cash
deposit slips Ex. PW-27/1 to 9.
77. PW-28 is SI Abhinender Jain. He joined the investigation of
the case on 25.12.2000 and on 30.12.2000 disclosure statement
Ex. PW-28/A of accused Md. Arif @ Ashfaq was recorded.
On 31.12.2000, accused Md. Arif @ Ashfaq pointed out a
driving college in Sarai Jullena, from where he had taken
FIR No. 688/00, PS Kotwali
: 61 :
training for driving and also identified accused Devender
Singh. A pointing out memo Ex PW-28/B was prepared in this
regard. On 03.01.2001, he also pointed out a room, where he
stayed with accused Babar Mohsin for ten-twelve days, vide
Ex. PW-28/C and also took them to Red Fort where they had
thrown the tickets of Light & Sound Programme watched by
them and pointed out memo is Ex. PW-28/D. In his presence,
on 03.01.2001 specimen handwriting of accused Matloob was
taken on three sheets Exs. PW-28/E to G. On 04.01.2001,
accused Shahanshah Alam and Devender Singh were joined in
the investigation and they were arrested. On the same day,
accused Babar Mohsin was also arrested. Disclosure
statements of accused Babar Mohsin, Devender and
Shahanshah Alam were recorded vide Exs. PW-28/J, K and L.
Accused Devender Singh produced a booklet. The booklet
Ex. PW-28/H and a receipt Ex. PW-28/I were also seized vide
memo Ex. PW-28/M. Supplementary statement of accused
Babar Mohsin was also recorded on 05.01.2001 vide Ex. PW-
28/N and on 04.01.2001, specimen signatures of accused
Ashfaq @Md. Arif @ Ashfaq were also taken on five sheets,
FIR No. 688/00, PS Kotwali
: 62 :
out of which three sheet Exs. PW-28/N-1 to N-3 bears his
signature. On 07.01.2001, accused Babar Mohsin took the
police party to his house at 751/9, Jama Masjid, Delhi.
Thereafter SI Abhinender Jain has corroborated the version of
PW-10 ASI Chand Singh. On that day, specimen signatures of
accused Md. Arif @ Ashfaq was also taken in Urdu on three
sheets which are Exs. PW-28/O-1 to 3. On 07.02.2001, he
deposited the documents of the case with the CFSL in intact
condition after collecting the same from Mal Khana. On
14.02.2001, he went to RTO Ghaziabad with Ins. Surender
Sund. On this point, he has corroborated the version of PW-5
Sh. Pardeep Kumar Srivastava and PW-17 Mahesh Kumar
Trivedi. On 28.02.01, he also joined the investigation again,
when place of installation of telephone no. 3969561 was
disclosed by Sh. Kashi Nath, official of MTNL, to the police.
78. PW-29 is Sh. Naresh Kumar, Senior clerk from the office of
Transport Commissioner, Meerut. He deposed that Star Motor
Driving College is a registered college with his department and
same is being run by Sh. Rajiv Malhotra and Ajay Malhotra
and entry in this regard is Ex. PW-29/A. He also deposed that
FIR No. 688/00, PS Kotwali
: 63 :
Akashdeep Motor Driving College, Ghaziabad was being run
by Lt. Col. Sirohi (retired). However, registration of the said
college was cancelled vide order dated 03.06.01. Photocopy of
the said register is Ex. PW-29/B.
79. PW-30 is Sh. Amar Bakshi. He is director of Distinctive
Properties & Leasing Ltd., at Devika Vihar, 6 Nehru Place,
New Delhi. He deposed that on the prayer of IO, he had told
him that shop no. GF-112, Devika Tower, Raj Nagar, Distt.
Centre, Ghaziabad belongs to Manoj Kumar and shop no. FF-
21 belongs to Shahanshah Alam and Intzar Hussain. His report
is Ex. PW-30/A.
80. PW-31 is Sh. Azam Malik. He was a student of Jamia Milia
Isalamia University Delhi from 1994 to 2000. There one Yunus
was known to him as he was also a student and they had fought
election together. In February 2000, he went to the house of
Yunus where Md. Arif @ Ashfaq was also present and Yunus
asked him if a room was available in the house where he was
residing i.e, at the house of Nain Singh. Thereafter, Md. Arif
@ Ashfaq took a room on rent in March-April 2000 in the
house of Nain Singh.
FIR No. 688/00, PS Kotwali
: 64 :
81. PW-32 is Sh. Mohan Lal Sharma. He is Sanitation
Superintendent. He deposed that police had asked him about
the tickets which were searched by them in the moat of the Red
Fort facing Lahori Gate. He informed the police that the moat
was cleaned on 05.01.2001 as per practice of cleaning it before
15 th August and 26 th January each year.
82. PW-33 is Sh. Neeraj Kumar Kaushik. He is also an official of
sanitation department and as such has corroborated the version
of PW-32 Sh. Mohan Lal Sharma.
83. PW-34 is Sh. Manoj Kumar Arya. He is owner of Shop No.
G-112, Durga Tower, Ghaziabad, U.P. He had let out this shop
to Sh. Nirmal Singh Sirohi on a monthly rent of Rs. 1,000/-
where he started a college under the name and style of
Akashdeep Motor Driving College.
84. PW-35 is Ct. Ranbir Singh. ON 23.12.2000, He was posted
as Daily Diary Writer at Police Post Yamuna Pusta. At about
10.30 am, he received information from Police Control Room
that one A.K.-47 rifle was lying at Vijaya Ghat. He informed
SI Ram Chander and Ins. Roop Lal immediately.
85. PW-36 is Sh. Mohd. Khalid. He is computer literate and used
FIR No. 688/00, PS Kotwali
: 65 :
to run a computer education centre under the name and style of
A.K. Computers in Gaffar Manzil, Okhla. One Faisal was
also a student there. However, he closed down computer centre
and started work of computer hardware assembling and
maintenance. He further deposed that Faisal had started a
computer center by the name of Knowledge Plus with Md.
Ashfaq. Faisal and Md. Ashfaq had taken quotation of
computers from him, which were prepared by his partner Sh.
Naib Hussain. Computers worth Rs. One lac were purchased
by Faisal and Ashfaq from him, which were installed by them
in their computer centre and his employee used to visit their
computer centre for maintenance. The quotations are Exs.
PW-36/A and B and the invoices are Exs. PW-36/C and D.
These were seized by the police vide Ex. PW-36/E. The three
CPUs were identified by him as Exs. P-1 to P-3.
FIR No. 688/00, PS Kotwali
: 66 :
86. PW-37 is Sh. Amir Irfan Mansoori. In the year 2000, he was
a tenant at the house of Sh. Nain Singh, as he used to study in
Jamia Milia Islamia. In May-June 2000, Ashfaq also came to
stay in the house of Nain Singh and informed him that he was a
resident of Kashmir and a shawl dealer. However, he had
never seen him selling shawls.
87. PW-38 is Ct. Mani Ram. On 01.03.2001, he was posted in the
Mal Khana of PS Kotwali. On that day, he had brought a
sealed parcel to the court of Sh. A.K. Sarpal, the then ld. M.M.
The parcel was opened and a purse was taken out. Thereafter,
he had corroborated the version of PW-26 Ct. Yogender
regarding the proceedings in the court.
88. PW-39 is Sh. Altaf Hussain. He is correspondent with British
Broadcasting Corporation, based at Sri Nagar. Telephone
number 2452918 is installed at his house in the name of his
wife, whereas telephone number 2477756 is installed in his
own name, also at his house. He further deposed that in
December 2000, he received a call on telephone number
2452918 from an unknown caller who informed him about the
incident inside Red Fort and further claimed that “DO DANE
FIR No. 688/00, PS Kotwali
: 67 :
DAL DIYE HAI” The caller further claimed to be from
Lashkar-e-Toiba and when he questioned the caller as to what
did he mean by “DO DANE DAL DIYE HAI” he was
informed that two fidayeens had attacked army personnels.
Thereafter, he informed the caller to contact British
Broadcasting Corporation at Delhi as he was not covering
Delhi.
89. PW-40 is Ms. Nazneen Bandey. She is wife of PW-39 Sh.
Altaf Hussain. She has corroborated the version of PW-39 Sh.
Altaf Hussain regarding the telephone installed at their
residence. She had received a letter from the police about the
telephone number 2452918 installed in her name at her
residence and she had given its reply vide Ex. PW-40/A.
90. PW-41 is Sh. Ayanjit Sen. He is also a correspondent
working with BBC. On 22.12.2000, he was in his office at Rafi
Marg, Delhi, when between 9 to 9.30 pm, he received a
telephonic call on telephone no. 0113355751 from someone
claiming to be speaking from Lashkar-e-Toiba. The caller
informed him that they had attacked Red Fort and he was
speaking from inside Red Fort. The caller further informed
FIR No. 688/00, PS Kotwali
: 68 :
him that they had killed two persons. Thereafter, he
telephoned the police to confirm the incident, but they had no
information at that time.
91. PW-42 is Lady Ct. Mukesh. On 22.12.2000, she was posted
at PCR and at about 9.47 pm, received a telephonic call from
one Sushant about firing going on inside Red Fort. She
recorded the information vide Ex. PW-42/A and transmitted the
same for further action.
92. PW-43 is Ct. Indu Bala. On 22.12.2000, she was posted at
Police Control Room. At about 9.50 pm, she received one
telephonic call from one Sh. Karan Mohan, who informed that
some civilians had intruded into Red Fort. She recorded the
said information vide Ex. PW-43/A and conveyed the same for
further action.
93. PW-44 is Sh. Danish Mohd. Khan. He is a cousin of Faisal
Mohd. Khan. He (Faisal) used to reside at the house of Nain
Singh. Ashfaq was also use to reside at the house of Nain
Singh. Both of them opened a computer center under the
name of Knowledge Plus at 18-C, Gaffur Nagar, Delhi. Faisal
was not having any proof of his permanent residence, so he
FIR No. 688/00, PS Kotwali
: 69 :
took a photocopy of his (Danish Mohd.) identity card for
obtaining a telephone connection at their Cyber Cafe.
However, he does not know if any telephone connection was
given at the computer centre or not.
94. PW-45 is SI Himmat Ram. On 10.03.2001 he accompanied
Ins. Hawa Singh, SI Amardeep and SI Ranbir Singh to Sri
Nagar in connection with the investigation of the instant case
and visited Standard Chartered Grindleys Bank, Kothi Bagh,
Sri Nagar. They met branch manager Sh. B.A. Vani and
moved an application about the bank accounts of Farukh
Ahmad Quasid, Nazir Sons and Bilal Ahmad Qawa. They
seized three cheques pertaining to the account of Farukh
Ahmad Quasid, twenty-nine cheques pertaining to accounts of
Nazir Sons and eight cheque pertaining to the account of Bilal
Ahmad Quwa. The seizure memo is Ex. PW-45/A and the
cheques are mark 1 to 40.
FIR No. 688/00, PS Kotwali
: 70 :
95. PW-46 is Sh. Kashi Nath, phone mechanic of Telephone
Exchange Tis Hazari. On 28.2.01, he took the police party to
Sharif Manzil, premises No. 5123, where telephone number
3969561 was installed by him in August 1999 and a pointing
out memo Ex. PW-46/A was prepared.
96. PW-47 is Sh. Om Parkash Gupta, Telephone Inspector, Tis
Hazari Exchange. On 28.02.2001, he was with the police
party. As such, he has corroborated the version of PW-46 Sh.
Kashi Nath regarding installation of telephone number
3969561.
97. PW-48 is Sh. Ram Kishan Yadav. He was a security guard
with ITDC and posted at Red Fort. On 22.12.2000, the first
show of Light & Sound Programme scheduled for 6.00 pm to
7.00 pm could not be held on account of power failure, but the
next show scheduled for 7.30 pm to 8.30 pm was held and the
audiences had left by 8.40 pm.
98. PW-49 is SI Mohan Singh. On 22.12.2000, he was posted at
wireless operator at Police Station Kotwali. At about 9.25 pm,
he received information about a shotting incident inside Red
Fort from lady Ct. Harbir of Police Control Room. This
FIR No. 688/00, PS Kotwali
: 71 :
information was recorded by him vide Ex. PW-49/A and
conveyed the same to duty officer SI Rajender Singh.
99. PW-50 is SI Virender Singh. On 26/12/2000, he was posted
with Bomb Disposal Squad. On that day, he was summoned to
Police Station Kotwali, where Ins. Hawa Singh produced
before him four hand-grenades with mark HG-84 ARGES. He
defused these bombs and prepared a report Ex. PW-50/A. He
identified the four detonators Exs. PW-50/1 to 4 and the
remnants of four hand-grenades are Exs. PW-50/5 to 8.
100. PW-51 is Col. A. Mohan. On 22.12.2000, he was posted as
Col. General Staff, Head-quarters Delhi Area. He received
information from Commanding Officer, 7th Rajputana Rifles,
Red Fort that some civilians had entered Red Fort and started
firing and he conveyed this information to Police Control
Room. He also informed the Police Control Room that two
army jawans were injured in the said firing.
101. PW-52 is Sh. Ajit Singh Bajaj. He is a resident of B-17,
Jungpura, where he is residing as tenant on a monthly rent of
Rs. 650/-. He further deposed that the person whose
photographs appear in exhibits Ex. PW-13/B and D (earlier
FIR No. 688/00, PS Kotwali
: 72 :
marked) never resided at the aforesaid address.
102. PW-53 is SI Arvind Pratap Singh. ON 22.12.2000, he was
posted at PS Kotwali and had delivered the special reports of
the case to the senior officers on that day itself.
103. PW-54 is Ct. Jitender. On 22.12.2000, he was posted at PS
Kotwali. On receipt of DD entry no. 19-A, he accompanied SI
Rajender Singh to Red Fort, there Addl. SHO Ins. Roop Lal
was also present and on his directions, they searched Red Fort.
104. PW-55 is Ct. Manoj Kumar. On 22.12.2000, he was posted
at PS Kotwali. Information was received vide DD entry no.
22-A about the death of Naik Ashok Kumar. He took a copy of
the DD entry to SI Rajender Singh at Red Fort, but he was not
there and he handed over the said copy of DD to Addl. SHO
Ins. Roop Lal.
105. PW-56 is Faisal Mohd. Khan. He came to Delhi from his
native village in 1998 and thereafter took a room on rent in the
house of Nain Singh. One Sh. Azam Malik was also a tenant
there, who had brought Md. Arif @ Ashfaq there and got a
room rented to him. He further deposed that he opened a
computer centre with Md. Ashfaq at 18-C, Gaffur Nagar in
FIR No. 688/00, PS Kotwali
: 73 :
August 2000 and the premises was taken on a monthly rent of
Rs. 4,500/- by Ashfaq. He has corroborated the version of
PW-44 Danish Md. Khan regarding obtaining a photocopy of
his Identify card for obtaining a telephone connection for the
Knowledge Plus computer center. He used to look after the
computer centre and Md. Arif @ Ashfaq used to visit only once
in four-five days. Ashfaq was also having a two-wheeler as
well as a mobile phone. On 22.12.2000, he had gone to his
native place and Ashfaq had not met him for the last four-five
days.
106. PW-57 is SI Mehruddin. He is Incharge of the Communal
Cell in the Special Cell. He deposed that a complaint Ex. PW-
57/A was received in the special cell against accused Sadakat
Ali and an enquiry on this complaint was conducted by Ins.
Surender Sund.
107. PW-58 is ASI Rameshwar Dayal. He is also posted in
communal cell. On receipt of the complaint Ex. PW-57/A, its
receipt was recorded at serial no. 7239, photocopy of which is
Ex. PW-58/A.
108. PW-59 is SI Har Narain. ON 22.12.2000, he was posted at
FIR No. 688/00, PS Kotwali
: 74 :
Police Post South Avenue. On being called by HC
Chanderbhan, he went to AFMC Hospital vide DD No. 29. HC
Chanderbhan had already gone to AFMC Hospital on receipt of
information vide DD entry No. 28, where he came to know that
Naik Ashok Kumar, who was admitted there with bullet injury
sustained at Red Fort, had expired. He informed police
station Kotwali about this. On 16.3.2001 Ins. Surender Sund
collected the copy of both DD entries, which are now Exs. PW-
59/A and B. DD no. 33, Ex. PW-59/C was also recorded at his
direction.
109. PW-60 is ACP Mahadev Mehta. On 05.12.2001, he was
posted as ACP Operation Cell. He came to know that accused
Sadakat Ali had let out premises no. 18-C, Gaffur Nagar, Okhla
to accused Md. Arif @ Ashfaq where he was running a Cyber
Cafe and had not informed the police about this, which
amounted to violation of notification issued by Commissioner
of Police, Delhi. He filed a complaint u/s 195 Cr.P.C against
accused Sadakat Ali. Complaint is Ex. PW-60/A and the
copies of the order issued by the Commissioner of Police is
Ex. PW-11/DA
FIR No. 688/00, PS Kotwali
: 75 :
110. PW-61 is Sh . Mukhtiar Ahmad. He deposed that his brother
Aslam is residing in Sri Nagar for the last twenty years and is
having his own business there. At his request, his neighbour
Zahur Ahmad Quasid had stayed at his (Mukhtiar Ahmad)
house in Laxmi Nagar in December 1999. His nephew
(Bhanja) Abu Haider used to meet him.
111. PW-62 is SI Ram Chander. On 23.12.2000, he was posted at
Police Post Yamuna Pusta of PS Kotwali. At about 10.30 am,
he received information that one A.K.47 rifle was lying at
Vijaya Ghat. He reached the main gate of Vijaya Ghat where
one rifle was lying. In the meanwhile, Addl. SHO of PS
Kotwali as well as senior officials reached the spot.
Thereafter, crime team, photographer, CFSL official Sh. A.
Dey, finger print expert and dog squad also reached the spot.
Photographs of the rifle were taken, finger prints were lifted
and his magazine was taken out. In the magazine, seven live
rounds were found. A sketch of the rifle as well as live rounds
were prepared vide Ex. PW-62/A and thereafter it was sealed
with the seal of RL and was seized vide memo Ex. PW-62/b.
He has identified the rifle Ex. PW-62/1, magazine Ex. PW-62/2
FIR No. 688/00, PS Kotwali
: 76 :
and cartridges Ex. PW-62/3 to 9.
112. PW-63 is Sh. Sanjay. He is a former employee of Star
Motor Driving College. He deposed that Rajiv Malhotra was
the owner of the college. On 14.02.2001, police visited the
aforesaid driving college and seized photocopy of licence Ex.
PW-29/A issued to the college and a visiting card Ex. PW-63/B
vide Ex. PW-63/A.
113. PW-64 is Sh. O.P. Singh, branch manager of State Bank of
India. On 31.01.2001, he was posted as Branch Manager of
State Bank of India, Gazhipur Branch, Delhi. Rehmana Yusuf
Farukhi was maintaining an account bearing no. 5817 in the
aforesaid branch. As such, he has corroborated the version of
PW-9 Sh. P.R. Sharma in all material particulars.
114. PW-65 is Sh. Irfan Malik Chaudhary. He is a resident of
house no. F-17/12, Batla House, Jogabai, Okhla, Delhi. He
deposed that no ration card was ever issued at the aforesaid
address in the name of Ashfaq Ahmad. He had not given any
letter or rent receipt to Ashfaq Ahamd for getting a ration card
issued at the aforesaid address.
115. PW-66 is Sh. Hazari Lal. He is father-in-law of one Sh.
FIR No. 688/00, PS Kotwali
: 77 :
Kushal Kumar, who used to run a ration depot in Okhla under
the name of Raj Stores. On 21.04.2001, Kushal Kumar handed
over seven monthly statements with effect from March 2000 to
December 2000 except April, June and October to the police
vide Ex. PW-65/A.
116. PW-67 is HC Reham Singh. He deposed that eight accused
namely Bilal Ahmad Kawa, Abu Bilal @ Abu Nasir @ Dar,
Abu Haider, Abu Shukher, Abu Saad, Zahor Ahmad Quasid,
Sher Zaman and Sabir @ Sabarulla @ Afgani have been
declared proclaimed offenders in this case. He proved the
report Ex. PW-67/A in this regard.
117. PW-68 is SI Omwati. On 25.12.2000, she was posted as
duty officer in the office of special cell, New Delhi. On that
day, Ins. M.C. Sharma along with staff made a departure entry
vide Ex. PW-68/A and at about 9.45 pm, an information was
recorded by SI Mahipal on the telephonic instructions of Ins.
Mohan Chand regarding suspect Abu @ Ashfaq vide DD entry
Ex. PW-68/B. On the same day, Ins. R.S. Bhasin along with
staff left the PS vide DD entry Ex. PW-68/C and SI Harender
also left vide DD entry Ex. PW-68/D. On 01.01.2001, she was
FIR No. 688/00, PS Kotwali
: 78 :
also posted as duty officer when Ins. Mohan Chand Sharma
and staff made departure entry and at about 5.20 pm, SI Sunder
Lal made his departure entry and both are Ex. PW-68/E and F.
118. PW-69 is Lady Ct. Sunita. In December 2000, when accused
Rehmana Yusuf Faruki was arrested, she conducted her
personal search vide Ex. PW-69/A. In her presence, she
(Rehmana Yusuf Faruki) also made a disclosure statement.
119. PW-70 is Ct. Vijay Kumar. On 23.12.2000, he reached the
spot on the direction of Ins. Roop Lal and prepared a video film
of the scene of occurrence at Red Fort as well as at Raj Ghat
from where arms and ammunitions were recovered. The
cassette is Ex. PW-70/A.
120. PW-71 is Sh. Mahender Kumar. In August 2000, he got a
driving licence issued in his name through one Satish Garg by
paying him Rs. 450/- and handing over to him six photographs.
Sh. Satish Garg informed him that he got the driving licence
issued through Shahanshah Alam. He also identified form no.
4 Ex. PW-17/A and form no. 3 Ex. PW-17/D.
121. PW-72 is Sh. Chand Ali. He also got his licence issued
from Ghazibad Transport Authority on payment of Rs. 650/-
FIR No. 688/00, PS Kotwali
: 79 :
and three photographs to one Yogesh Tiwari. He identified his
forms Ex. PW-17/B and F. However, he did not support the
prosecution version that the licence was got issued through
Shahanshah Alam.
122. PW-73 is HC Reham Singh. He deposed that whenever a
notification is issued, its copies are sent to television, radio,
PRO Delhi Police as well as to all police stations and officers.
He has proved notification dated 21.08.2000 Ex. PW-73/A,
19.10.2000 Ex. PW-73/B and 19.02.2001 Ex. PW-73/C issued
by the Commissioner of Police, Delhi.
123. PW-74 is Mohd. Idriz. He is President of Dilaram Market,
Balimaran, Delhi. On 12.01.2001, police alongwith accused
Ashfaq had come to his shop for searching the shop of one Sher
Zaman, situated on Second Floor. The shop was searched in
his presence and cash Ex. P-1 to P-28, stapling machine Ex. P-
29 and bag Ex. P-30 were recovered from there and seized vide
Ex. PW-74/A.
124. PW-75 is Sh. Shiv Raj Singh. On 22.12.2000, he went to the
spot inside Red Fort and searched for finger prints, but could
not find any.
FIR No. 688/00, PS Kotwali
: 80 :
125. PW-76 is lady Ct. Brijesh. On 26.12.2000, she was posted at
PCR. At 5.36 am, she received information from one S.U.
Khan that firing was going on in Gali no. 8, Munadi Road,
Batla House, Delhi. She recorded this information vide Ex.
PW-76/A and conveyed the same further.
126. PW-77 is lady Ct. Harvir Kaur. On 22.12.2000, she was
posted at PCR. At about 21.23 hours, she received information
from Captt. Manish that some persons had fired inside Red Fort
and thereafter fled towards the back of the Red Fort. She
recorded this information vide Ex. PW-77/A and conveyed it
further for necessary action.
127. PW-78 is HC Narender Singh. On 23.12.2000, he was
posted as wireless operator at PCR. At about 10.35 AM, he
received message regarding stengun lying behind the Red Fort.
He recorded this information vide Ex. PW-78/A and conveyed
it further to North District.
128. PW-79 is Sh. Iqbal Hassan. In 2000, he used to reside at
house no. A-18, Gaffur Nagar, Okhla, Delhi and was also its
registered owner. He never let out this house or any part
thereof to any Ashfaq Ahmad Khan. He denied the receipt Ex.
FIR No. 688/00, PS Kotwali
: 81 :
PW-28/H issued in the name of Ashfaq Ahmad Khan s/o Sh.
Akram Khan with address A-18, Gaffur Nagar, Okhla, Delhi
and bearing mobile no. 9810263721.
129. PW-80 is Sh. Hifuzar Rehman. He is a resident of C-19,
Gali No. 8, Batla House, Delhi. On 26.12.2000, at about 5.30
am, he heard gun sound coming from the house of Sh. Gian
Chand Goel. He informed the Police Control Room about this.
130. PW-81 is HC Satbir Singh. On 23.12.2000, he was posted
as wireless operator at Police Station Kotwali. He received two
wireless messages regarding a A.K. 47 rifle lying behind the
Red Fort. He recorded these two information vide Ex. PW-
81/A and B and conveyed it for further action.
131. PW-82 is SI Sripal Singh. On 22.12.2000, he was posted as
duty officer at Police Station Chankaya Puri. Information was
received that Naik Ashok Kumar, injured in Red Fort shoot-out
incident, was admitted AFMC hospital and was declared
brought dead by the doctor. He recorded this information vide
DD no. 22 and assigned the same to ASI Har Narain for
further action and also directed him to contact SHO, Kotwali.
The DD entry is Ex. PW-82/A.
FIR No. 688/00, PS Kotwali
: 82 :
132. PW-83 is Sh. R.K. Ajwani. He is Chief Enforcement
Officer, Directorate of Enforcement. He deposed that on
13.01.2001, he was summoned to Special Cell, Lodhi Colony.
He along with Asstt. Enforcement Officer Sh. Vinod Kapoor
reached there and Ins. Surender Sund met them. He showed
them five-six papers, which were a visiting card, a slip
containing telephone number of Peshwar, a photograph
showing two persons playing carom, a blank Visa Form and
one Identity Card with a photograph. He identified these papers
and these papers were seized vide Ex. PW-83/A and these
documents are Exs. Visa Slip of Islamic Republic of Pakistan
Ex. PW-83/P-1, Identify Card of Sher Zaman Ex. PW-83/P-2,
a cash memo Ex. PW-83/P-4, photo showing playing two
persons carom Ex. PW-83/P-5 and a khaki paper on which
address of Meer Askar is written, is Ex. PW-83/P-6.
133. PW-84 is Sh. Vinod Kapoor. On 13.01.2001, he was also
with Sh. R.K. Ajwani and as such he has corroborated the
version of PW-83 Sh. R.K. Ajwani in all material particulars.
134. PW-85 is SI Girish Jain. On 15.01.2001, he was posted at
Police Station New Friends Colony and on that day, he took
FIR No. 688/00, PS Kotwali
: 83 :
three hand-grenades of FIR No. 3/01 and two hand-grenades of
FIR no. 630/00, both of Police Station New Friends Colony,
from the Mal Khana and took them to Bomb Disposal Unit,
NSG at Smalkhan. There, these hand-grenades were destroyed
by Major Shukla. He also issued a certificate in this regard.
Two Road Certificates by which, the hand-grenades were taken
are Exs. PW-85/A and B and the destruction certificate is Ex.
PW-85/C. After destruction, remnants of the hand-grenades
were deposited in the Mal Khana and remnants are Ex. PW-
193/1.
135. PW-86 is Ins. Pratap Singh Dhillon. On 26.12.2000, he was
posted in Special Cell, Lodhi Colony. On that day, he
examined some documents in this case, which were handed
over to him by Ins. Ved Parkash. These documents included
one digital diary, one personal diary, driving licence and ration-
card of Md. Ashfaq, some visiting cards and pay-in-slips of
banks and negative recovered from the wallet of Md. Ashfaq,
which was of Abu Bilal. These documents were seized by Ins.
Ved Parkash vide memo Ex. PW-86/A in his presence.
Negative is Ex. PW-86/B and driving licence is Ex. PW-13/A.
FIR No. 688/00, PS Kotwali
: 84 :
136. PW-87 is Sh. A.K. Roy, record keeper of Hindustan Times,
New Delhi. He deposed that cutting Ex. PW-87/A with
Heading “Lashker-man storm Army camp in Red Fort-Three
killed”, was published in Hindustan Times dated 23.12.2000 on
the information given by their correspondent.
137. PW-88 is Ct. Ghan Shyam. On 22.12.2000, he was posted as
daily diary writer on the Police Post of South Avenue of Police
Station Chankaya Puri. At about 10.43 pm, information was
received from Police Control Room that police be sent to
Armed Forces Medical College. He recorded this information
vide DD entry no. 28 Ex. PW-88/a and handed over the same to
HC Chander Bhan for necessary action. At about 11.00 pm,
HC Chander Bhan requested him to send ASI Har Narain to
AFMC. He recorded this information vide DD entry no. 29 Ex.
PW-88/B and directed ASI Har Narain to reach there.
138. PW-89 is HC Upender Singh. On 23.12.2000, he was
posted on PCR Van, Sugar-61 with base behind Red Fort. At
about 10.30 am, he was informed by a home-guard Jawan, that
a stengun was lying in the bushes behind Vijaya Ghat. He
went there and found one A.K.-47 rifle lying below the
FIR No. 688/00, PS Kotwali
: 85 :
Western Boundary wall of Vijaya Bhat. He informed Police
Control Room and soon Addl. SHO, PS Kotwali and other staff
reached there. He has identified the rifle Ex. PW-62/1 its
magazine Ex. PW-62/2 and cartridges Ex. PW-62/3 to 9. He
had recorded this information in the log book Ex. PW-78/A.
139. PW-90 is Sh. Hazarul Hassan, ARI Technical. In the year
2000, he was posted in the office of ARTO Ghaziabad. He
deposed that licence Ex. PW-13/A was issued by Ms. Mamta
Sharma, the then ARTO. He has corroborated the testimony of
PW-16 Ms. Mamta Sharma and PW-17 Sh. Mahesh Kumar
Trivedi . He also deposed that driving test of Mahender, Chand
and Rajender vide Ex. PW-17/A to C were conducted by him.
140. PW-91 is ASI Mahender Singh. On 04.01.2001, he was
posted as duty officer at Police Station Nizamuddin. On that
day, he had registered FIR no. 08/01 Ex. PW-91/A u/s 420 IPC
read with Section 12 of Passport Act against one Sudhir
Mishra. The case is pending trial in the court.
141. PW-92 is ASI Ran Singh. On 26.12.2000, he was posted as
duty officer at Police Station New Friends Colony. At about
5.30 am, he received information from Police Control Room
FIR No. 688/00, PS Kotwali
: 86 :
that firing was going on in Gali no. 8, Muradi Road, Batla
House, Delhi. This information was recorded by him vide DD
entry no. 20 Ex. PW-92/A and was conveyed to the SHO as
well as Police Post Jamia Nagar. At about 7.00 am, he
received a rukka sent by Ins. Madan Mohan, SHO of Police
Station, upon which he registered FIR Ex. PW-92/B. He also
recorded DD no. 22 Ex. PW-92/C.
142. PW-93 is HC Devdut. On 18.08.2001, he was posted at
MHCM at Police Station Kotwali. On that day, Ins. Surender
Sund had deposited a sealed parcel along with CFSL Form
sealed with the seal of SKS, stated to contain empty cartridges.
Entries Ex. PW-93/A was made in this regard. On 20.08.2001,
he sent the said parcel along with CFSL form, through SI
Amardeep Sehgal for being deposited in the CFSL and made
entries Ex. PW-93/B in this regard. Again on 22.08.2001, SI
Surender Sund had deposited with him two envelops sealed
with the seal of SKS vide entry Ex. PW-93/C. The receipt of
the parcel being deposited in the CFSL was handed over to him
by SI Amardeep Sehgal and same is Ex. PW-93/D.
143. PW-94 is retired Col. Nirmal Singh. In 1998, he opened
FIR No. 688/00, PS Kotwali
: 87 :
Akashdeep Motor Driving College at Ghaziabad in C-block,
Shastri Nagar, which was later on shifted to GF-112, Devika
Tower, Raj Nagar, Ghaziabad in 1998, a rented premises taken
from Sh. Manoj Kumar, a relative. Accused Shahanshah Alam
used to work at his shop and he was Incharge of all work for
running a driving school including preparation of driving
licences, renewal thereof and training of drivers. The driving
school was in his name, but accused Shahanshah Alam was
responsible for running it and used to pay him Rs. 2,000/- per
month. The forms for preparation of driving licences were
used to be filled up by Shahanshah Alam and his employees
and thereafter seal of college used to be affixed. However, he
does not know if he also got prepared driving licence of Md.
Ashfaq.
144. PW-95 is HC Harbans Singh (retired). On 22.12.2000, he
was posted at Police Control Room. He received information
from Col. Mohan regarding his jawans being fired upon and
injured by a civilian at Red Fort. He recorded this information
vide Ex. PW-95/A and conveyed it for further action.
145. PW-96 is SI Gurdev Singh. On 04.01.2001, he joined the
FIR No. 688/00, PS Kotwali
: 88 :
investigation of the case, when accused Md. Ashfaq was
interrogated, wherein he disclosed that one Sudhir Mishra
could get a passport prepared as he had done it for many
persons. He raided said Sudhir Mishra and got FIR no. 08/01
registered u/s 420 IPC read with Section 12 of Passport Act in
Police Station Hazrat Nizamuddin
146. PW-97 is Sh. B.A. Wani, Branch Manager, Standard
Chartered Grindleys Bank, Sri Nagar. He deposed that
accounts No. 32263962 of M/s Nazir Sons, 28552609 of Mr.
Bilal Ahmad Kawa and 32181669 of Farookh Ahmad Quasid
were opened during his tenure as Branch Manager and all three
accounts were current accounts, though he does not know the
account holders personally. He has corroborated the version
of PW-45 SI Himmat Ram regarding handing over the
statements of account and cheques to the police. He has also
identified the cheques issued by the account holders Ex. PW-
97/P-1 to P-40. He has also proved the statements of account
Ex. PW-97/P-41 to 45.
147. PW-98 is Sh. Rattan Chand, Warden Central Jail, Kot
Balwal, Jammu. He deposed that on 29.03.2001, SI Amardeep
FIR No. 688/00, PS Kotwali
: 89 :
Sehgal and SI Satyajit Sareen visited the aforesaid jail after
obtaining court orders and permission from Competent
Authority of Jammu & Kashmir and recorded entry no. 14, Ex.
PW-98/A. They formally arrested Nazir Ahmad Quasid and
Farukh Ahmad Quasid in the instant case vide DD no. 15 Ex.
PW-98/B. Both accused were interrogated by them in the
presence of jail officials and they also requested that when the
detention of these detenues was over, DCP Special Cell, Delhi
be intimated.
148. PW-99 is Ins. Qazashams, SHO of Police Station Sadar, Sri
Nagar. He deposed that FIR no. 265/00 and 2/01, both Police
Station Sadar, Sri Nagar, were registered against accused
Wasim Khateem and Tareekh Ahmad Shah and accused Nazir
Ahmad Quasid and Farukh Ahmad Quasid and are still pending
trial. He has placed certified documents of both the FIRs on
record.
149. PW-100 is Ins. Aziz Qudri. He deposed that on 10.01.2001,
Delhi Police Officials along with accused Ashfaq were in Sri
Nagar, where he was posted as SHO of Maharaj Ganj Police
Station. He had rendered local assistance to the Police Party,
FIR No. 688/00, PS Kotwali
: 90 :
during which accused Ashfaq pointed out the house of Jahoor
Ahmad Quasid in Fateh Qudal.
150. PW-101 is Sh. Pritam Singh, Assistant Superintendent of
Kot Balwal Jail, Jammu. He has corroborated the version of
PW-98 Sh. Rattan Chand, warden of the Kot Balwal Jail,
Jammu. He also deposed that disclosure statement Ex. PW-
101/A of accused Farukh Ahmad Quasid was recorded in his
presence as he had produced the accused before the Delhi
Police Officials.
151. PW-102 is Sh. Hem Raj Sharma. He is also Assistant
Superintendent of Kotbalwal Jail, Jammu. He has also
corroborated the version of PW-98 Sh. Rattan Singh. He has
also deposed that disclosure statement Ex. PW-102/A of
accused Nazir Ahmad Quasid was recorded in his presence as
he had produced the accused Nazir Ahmad Quasid before Delhi
Police Officials.
152. PW-103 is SI Om Parkash. He joined the investigation of
the case on 12.01.2001 at Police Station Chandni Chowk, when
Ins. Surender Sund along with accused Ashfaq came over there
and sought his assistance in searching shop no. 5123, Sharif
FIR No. 688/00, PS Kotwali
: 91 :
Manzil, Balimaran, belonging to Sher Zaman. He went to the
shop alongwith Ins. Surender Sund with accused Ashfaq in his
custody. Thereafter, he has corroborated the version of PW-74
Mohd. Idriz.
153. PW-104 is Sh. Ravi Kumar. He runs a PCO with telephone
no. 260933 at Lucknow. He deposed that on 18.10.2000,
25.10.2000 and 09.11.2000, telephonic calls were made from
his PCR by Attruddin (since P.O.) to Delhi on telephone No.
9811242154. He produced call details Ex. PW-104/A to C in
this regard.
154. PW-105 is Subedar Madho Singh. On 23.12.2000, he along
with Man Singh identified the dead bodies Naik Ashok Kumar
and Sepoy Uma Shankar Singh in Subzi Mandi Mortuary vide
Exs. PW-105/A and B.
155. PW-106 is Sh. M.S. Upadhaya, DIG Arunachal Pradesh,
earlier DCP North, Delhi. On 20.03.2001, he was posted as
DCP North, Delhi. The file of the instant case was placed
before him and after examining the same and having satisfied
himself that accused Md. Arif @ Ashfaq @ Abu Hamal had
contravened the provisions of Section 3 of Arms Act, he
FIR No. 688/00, PS Kotwali
: 92 :
granted the sanction for prosecution of accused Md. Arif @
Ashfaq @ Abu Hamal u/s 25 of Arms Act vide Ex. PW-106/A.
156. PW-107 is SI. Dedar Singh of Jammu & Kashmir Police. He
deposed that Jammu & Kashmir Government had made a
prayer to Central Government for banning Lashkar-e-Toiba on
account of its terrorist activities.
157. PW-108 is Sh. J.D. Singh, Sub-Divisional Engineer,
Lukhnow. He deposed that on 25.04.2001, Ins. Surender Sund
submitted to him an application Ex. PW-108/A for providing
the names and addresses of subscribers of telephones no.
260933, 251899, 651930, 247209 and 246220. He gave a
report Ex. PW-108/B mentioning the names and addresses of
said subscribers.
158. PW-109 is Hon. Cap. Man Singh. On 23.12.2000, he
collected the dead bodies of Naik Ashok Kumar and Sepoy
Uma Shankar with PW-105 Subedar Madho Singh and
corroborated the version of PW-105.
159. PW-110 is Subedar Satya Vijay Singh. On 22.12.2000, he
was posted as Junior Commissioned Officer, Training with 7th
Raj Rifles at Red Fort and removed injured Naik Ashok Kumar
FIR No. 688/00, PS Kotwali
: 93 :
to Armed Forces Medical College, Dalhousie Road, New
Delhi.
160. PW-111 is SI Mahesh Kumar. On 15.02.2001, he visited the
place of occurrence inside Red Fort with Ins. Surender Sund,
where he prepared a scaled site plan Ex. PW-111/A with the
assistance of Capt. S.P. Patwardhan.
161. PW-112 is Dr. G.D. Gupta, Principal Scientific Officer cum
Assistant Chemical Examiner. He examined blood samples of
deceased Abdullah Thakur, Uma Shanker and Ashok Kumar as
well as other exhibits lifted from the spot. He detected blood
on some exhibits while some exhibits were too small for
serological examination. His report is Ex. PW-112/A.
162. PW-113 is Sh. Shahvez Akhtar. He is known to Faisal and
Shahnawaz as they were his class fellows in a computer class.
Later on, he along with Shahnawaz taught at the center run by
Faisal and accused Md. Arif @ Ashfaq under the name and
style of “Knowledge Plus.”
163. PW-114 is Naib Subedar Dharam Chand. He deposed that
on 23.12.2000, he removed the clothes of deceased Abdullah
Thakur as per the direction of the doctor and these clothes were
FIR No. 688/00, PS Kotwali
: 94 :
later on seized by the police vide Ex. PW-114/A. He had
identified the clothes as vest Ex. PW-114/1, shirt Ex. PW-
114/2, sweater Ex. PW-114/3, jersey Ex. PW-114/4 and wind-
chitter Ex. PW-114/5. He also identified the dead body of
Abdullah Thakur vide Ex. PW-114/B.
164. PW-115 is Subedar Ashok Kumar. On 23.12.2000, he along
with Havildar Ramesh Kakre searched the Red Fort as per the
directions of senior officers and during search, they recovered
thirty-seven empty cartridges and one live cartridge. These
were seized by the IO vide Ex. PW-115/A. He had identified
the empty cartridges as Exs. PW-115/1 to 37 and live cartridge
Ex. PW-115/38.
165. PW-116 is Havildar Ramesh Kakre. Since he was with PW-
115 Subedar Ashok Kumar on 23.12.2000, he has corroborated
the version of PW-115 Subedar Ashok Kumar in all material
particulars.
166. PW-117 is Sh. Mushid Ahmad Khan. He runs a PCO Booth
in Lukhnow with telephone No. 651930. In April-May 2001,
IO Ins. Surender Sund inquired from him if any call was made
from his booth to telephone No. 9811242154. He checked the
FIR No. 688/00, PS Kotwali
: 95 :
record and found that a call was made from his booth to
aforesaid number on 03.11.2000.
167. PW-118 is Sh. T.R. Nehra, Principal Scientific Officer,
CFSL, New Delhi. He examined ten bank notes of Rs. 100/-
each, eight notes of Rs. 50/- each, one note of Rs. 10/- and one
note of Rs. 5/- and found all the notes to be genuine and his
report is Ex. PW-118/A.
168. PW-119 is SI Pradeep Kumar. He deposed that on
11.09.2001, Ins. Surender Sund moved an application Ex. PW-
119/A at FRRO for supplying the passport number and date of
arrival of one Attruddin (since P.O.) in India and the same was
supplied to him vide Ex. PW-119/B stating therein the passport
number as well as date of arrival i.e. 05.09.2000. On
27.08.2001, he moved another application Ex. PW-119/C
seeking date of departure of Atturddin (since P.O.) from India
and same was supplied to him vide Ex. PW-119/D and the date
of departure is 17.01.2001. Photocopy of embarkation card is
Ex. PW-119/E.
169. PW-120 is Sh. Md. Juber. He runs a PCO Booth at
Chopatia, Lukhnow with telephone No. 251899. On
FIR No. 688/00, PS Kotwali
: 96 :
19.10.2000, a call was made from his telephone booth to
telephone No. 9811242154 and call lasted for 116 seconds.
170. PW-121 is Dr. Major Shashank Sharma. On 23.12.2000, he
was posted as Medical Officer with 7th Raj Rifles, at Red Fort.
When he reached the spot, he found dead bodies of Abdullah
Thakur and Uma Shanker and bodies were having bullet
injuries. With the help of nursing assistant Bhupender Singh,
he removed the clothes from the two dead bodies and same
were seized by the police.
171. PW-122 is Naik Suresh. He reached the spot after a short
while of the incident and found Naik Ashok Kumar lying in
injured condition in southern side. He had sustained bullet
injuries and he informed his senior and Naik Ashok Kumar was
removed to AFMC, Dulhousie Road, where his clothes were
removed and the same was handed over by him to the police
vide Ex. PW-122/A. He identified the clothes i.e. shirt, jersey,
pant, vest and nikkar Exs. PW-122/1 to 5. Thereafter, he also
took the police to the spot, where there were eight bullet
marks, where Naik Ashok Kumar was shot. Police lifted earth
from there, part of a fired bullet, blood, earth control, HMT
FIR No. 688/00, PS Kotwali
: 97 :
watch, part of rack, chappal and plastic chair and same were
seized vide Ex. PW-122/B. He has identified portion of fired
bullet Ex. PW-122/1, HMT Watch Ex. PW-122/2, chappal Ex.
PW-122/3, plastic chair Ex. PW-122/4 and part of rack Ex.
PW-122/5. He also identified the dead body of Naik Ashok
Kumar vide Ex. PW-122/C.
172. PW-123 is Havildar Bhupender Singh. On 22.12.2000, he
was with PW-121 Dr. Major Shashank Sharma, so he has
corroborated his version. He further deposed that clothes of
Abdullah Thakur and Uma Shankar were handed over by him
to the police vide Ex. PW-123/A. He had identified the clothes
of Uma Shankar as shirt Ex. PW-123/1, vest Ex. PW-123/2,
pant Ex. PW-123/3 and jersey Ex. PW-123/4. In his presence,
police had also lifted blood and earth control from MT Park
and it was seized vide Ex. PW-123/B. He identified the dead
body of Uma Shankar vide Ex. PW-123/C.
173. PW-124 is Havildar Sri Ram (retired). On 23.12.2000, he
was posted as Havildar with 7th Raj Rifles, at Red Fort. He
identified the dead body of Uma Shankar vide Ex. PW-124/A.
174. PW-125 is Sh. S.K. Chadha, Senior Scientific Officer, CFSL
FIR No. 688/00, PS Kotwali
: 98 :
New Delhi. On 23.12.2000, he along with team of CFSL
officials, comprising CFSL Director Sh. S.R. Singh, Ballistic
Expert Sh. N.B. Bardhan, photographer Sh. Gautama Rai, Sh.
Harender Prasad of Finger Print Unit and Sh. Ravi Kumar from
physics Division visited Vijaya Ghat. One A.K. 56 Rifle with
magazine was found lyiny near the electric pole on the Western
Boundary wall of Vijaya Ghat. It was unloaded by Sh. N.B.
Bardhan wearing gloves. Later on rifle was taken to the office
of SHO, Kotwali, where it was examined for finger prints and
five finger prints Ex. Q-1 to Q-5 were found and same were
photographed. A piece of paper and currency notes were also
found lying outside the Red Fort. Again on 26.12.2000, he
along with Sh. A. Dey and Sh. N.B. Bardhan visited the Red
Fort,where one A.K. 56 Rifle, two magazines and one
bandoleer was found lying outside Red Fort. These items were
also taken to Police Station Kotwali, where these were
examined for finger prints and one finger print was found on
one hand-grenade, which was inside the bandoleer. He had
compared the finger prints with that of Abu Shamal and his
report in this regard is Ex. PW-125/A to C. He has correctly
FIR No. 688/00, PS Kotwali
: 99 :
identified A.K. 56 rifle Ex. PW-125/1, two magazines Exs.
PW-125/2 & 3, thirty-two live cartridges which were found
inside the magazine as Exs. PW-125/4 to 35 and knife Ex. PW-
125/36. He has also identified four empties of hand-grenades
Ex. 50/5 to 8 and mechanical detonators Ex. PW-50/1 to 4.
He has also identified A.K. 47 rifle Ex. PW-62/1, magazine Ex.
PW-62/2 and cartridges Ex. PW-62/3 to 9.
175. PW-126 is Major Manish Nagpal. On 22.12.2000, he was
posted with 7th Raj Rifles at Red Fort as Captain. At about
9.05 pm, there was firing inside Red Fort coming from the
Ring Road Side. He took a Self-loading Rifle from Havildar
Talbir Singh and fired six rounds in the direction. He returned
the empties as well as the self-loading rifle to HC Talbir Singh
and also informed the Police Control Room.
176. PW-127 is Sh. Shahnawaz Khan. He runs a PCO booth at
Lukhnow with telephone NO. 247209. On 09.11.2000, two
calls were made from the Booth to telephone no. 9811242154
at about 16.49 and 18.51 pm. (Check)
177. PW-128 is Ex-Havildar Mahesh Chand. On 22.12.2000, he
was posted with 339 Independent Supply Platoon, Red Fort. At
FIR No. 688/00, PS Kotwali
: 100 :
about 9.00 pm, on hearing crackers like sound, he along with
his colleagues came out and went to the spot, where Abdullah
Thakuar was on duty. He saw Abdullah Thakur lying on the
ground. Thereafter, he and others removed Abdullah Thakur to
M.I. Room. In this regard, he has corroborated the testimony
of PW-114 Naib Subedar Dharm Chand. Apart from that, he
also deposed that earth sample and two empties were lifted,
one from the sentry post and other from the place nearby, vide
Ex. PW-128/A. He had identified the empty Ex. PW-128/1,
stone pieces Ex. PW-128/2 and empty Ex. PW-128/3. Cotton
Swab by which blood was lifted is Ex. PW-128/4 and he also
identified the dead body of Abdullah Thakur is Ex. PW-128/D.
178. PW-129 is Sh. O.S. Srivastava, Senior Scientific Officer cum
Assistant Technical Examiner. He examined the exhibits lifted
from the spot and found human blood on several exhibits and
his report is Ex. PW-129/A.
179. PW-130 is Sh. Vinay Srivastava, Vigilance Passport Officer,
Lukhnow. He deposed that Attruddin Sidiqui (since P.O.) was
issued passport No. R-603403 from Regional Passport Office,
Lukhnow, which was valid for a period of ten years.
FIR No. 688/00, PS Kotwali
: 101 :
180. PW-131 is Retired Subedar D.N. Singh. On 22.12.2000, he
was posted as Incharge of magazine of 7th Raj Rifles Red Fort.
On that day, militants had attacked Red Fort and killed three
jawans. At that time, Major D.K. Singh and Capt. Nagpal fired
eleven rounds in retaliation and deposited their empties with
him. He had prepared a report in this regard and same is Ex.
PW-131/A. These empties were later on handed over to the
police and IO prepared sketch of the cartridge vide Ex. PW-
131/B and were thereafter taken into possession vide Ex. PW-
131/C. CFSL form was also filled in. He also identified these
empties vide Exs. PW-131/1 to 11.
181. PW-132 is Sh. Riaz Ahmad. He is Personal Assistant to the
Distt. Magistrate of Distt. Badgaon, J. & K. He deposed that
Nazir Ahmad Quasid and Farukh Ahmad Quasid were detained
in Kot Balwal Jail by the order of Distt. Magistrate, He has
placed on record the detention orders as well as grounds of
detention of both accused and same are Exs. PW-132/A to D.
The accused were detained for twenty-four months.
182. PW-133 is Major Margrate Henry. On 22.12.2000, at about
9.35 pm, she examined injured Naik Ashok Kumar and
FIR No. 688/00, PS Kotwali
: 102 :
declared him brought dead. She further deposed that he died
on account of gun shot wound. She prepared MLC Ex. PW-
133/A and conveyed the information to the police vide Ex.
PW-133/B and her certificate about cause of death is Ex. PW-
133/C.
183. PW-134 is Havildar Dalbir Singh. On 22.12.2000, at about
9.00 pm, he was posted at Red Fort with 7th Raj Rifles. He has
corroborated the version of PW-131 Subedar D.N. Singh. He
further deposed that five rounds were fired by Major D.K.
Singh and six rounds were fired by Capt. Nagpal, empties of
which were deposed by them with the magazine.
184. PW-135 Dr. Rajender Singh, Senior Scientific Officer,
CFSL, Delhi. He deposed that on 10.05.2001, he received
nine parcels, no. 1 containing negligible quantity of earth Ex. 1,
2 control black coloured bituminous material Ex. 2, 5 cotton
swab containing negligible quantity of earth Ex. 5, 6 containing
brown coloured control earth Ex. 6, 8 containing cotton swab
Ex. 8 containing negligible quantity of earth , 9 brown coloured
earth control Ex. 9, 23 returned in original as no query was put
about it, 24 containing currency notes of Rs. 1,415/- with
FIR No. 688/00, PS Kotwali
: 103 :
negligible quantity of earth Exs. 24 and 25 containing little
quantity of earth Ex. P 25. On laboratory examination of Exs.
1,2,5, 8, 9, 24 and 25, he could not carry out the comparison as
negligible quantity of earth was detected and same was not
sufficient for comparison and his report is Ex. PW-135/A.
185. PW-136 is HC Jitender Pal Singh. On 26.12.2000, he was
posted as duty officer at Police Station Kalyan Puri from 12
mid night to 8.00 am. On that night. at about 2.25 am, he
received a rukka Ex. PW-136/A sent by Ins. Ved Parkash,
through Ct. Rameshwar on which he recorded the FIR no.
419/00, carbon copy of which is Ex. PW-136/B and made
endorsement on the rukka Ex. PW-3/A at point A.
186. PW-137 is SI Rajender Singh. On 22.12.2000, he was
posted as Sub-Inspector in PS Kotwali. At about 9.30 pm, DD
entry no. 19-A Ex. PW-15/B was assigned to him and it was
regarding firing inside Red Fort. He along with Ct. Jitender
reached the spot, where he came to know that some persons
had entered inside the Red Fort and fired gun shot and caused
injuries to some persons and two of them had already died and
one person was removed to hospital. Ins. Roop Lal reached the
FIR No. 688/00, PS Kotwali
: 104 :
spot shortly thereafter. He had recorded the statement of Capt.
S.P. Patvardhan, on which Ins. Roop Lal made endorsement
Ex. PW-15/D and handed over the same to him for getting a
case registered in the Police Station. He took the rukka to the
Police Station and got the case registered vide FIR No. 688/00,
Ex. PW-15/E and thereafter returned to the spot.
187. PW-138 is Sh. Afzal Taslim. He deposed that one Sh.
Mustaq Ahmad was his tenant at N-84, Batla House, Okhla,
New Delhi. He was also having a ration card in his name.
However, when he left the tenanted house, he handed over his
ration card to his (Afzal) brother. The said ration card was
later on handed over by Arshad Taslim to the police in the
presence of Afzal Taslim, which was seized vide memo Ex.
PW-138/A. Ration card is Ex. PW-138/1. Said ration card was
initially issued at the address of L-17 and subsequently it was
changed to N-84, Batla House.
188. PW-139 is Sh. Harun Alam. He joined the investigation of
the case on 05.02.2001 when ration card Ex. PW-139/A of
Akhtari Begum was seized by the police vide memo Ex. PW-
139/B.
FIR No. 688/00, PS Kotwali
: 105 :
189. PW-140 is Masroor Husan. He is husband of Akhtari
Begum. He has corroborated the version of PW-139 Harun
Alam. He got the ration card issued after paying Rs. 100/- to
one Banee.
190. PW-141 is Smt. Akhtari Begum. She has also corroborated
the version of PW-139 Sh. Harun Alam regarding seizure of
ration card Ex. PW-139/A.
191. PW-142 is Arshad Taslim. He has corroborated the version
of PW-138 Afzal Taslim regarding seizure of ration card Ex.
PW-138/1.
192. PW-143 is Sh. Anil Jhamb, Senior Manager, Satyam Online.
He deposed that prepaid cards of Internet connection are
available in the market and anyone can buy them and use the
same on his computer and telephone to access the Internet, but
he could not tell if the Internet was used on telephone No.
6315904.
FIR No. 688/00, PS Kotwali
: 106 :
193. PW-144 is Major D.K. Singh. On 22.12.200o, he was posted
with 7th Raj Rifles. He has corroborated the version of PW-
131 Subedar D.N. Singh regarding his firing of five rounds
inside the Red Fort in the direction, from which gun-shots were
heard.
194. PW-145 is Sh. Fiaz Ahmad. He is tenant of House of PW-20
Nain Singh. He deposed that Md. Arif, Azam Malik and Faisal
were also tenants in the said house. Later on Faisal opened a
computer centre with Md. Arif. Subsequently Faisal told him
that he required a ration card and he advised him to get it
prepared from the office. After sometime, Md. Arif @ Ashfaq
came to him and asked him to accompany him to the office for
preparation of ration card, but he expressed his inability and
instead introduced him to accused Matloob, who used to ran a
Fair-price shop.
195. PW-146 is Md. Arshad. On 07.02.2001, police seized his
ration card Ex. PW-205/A vide memo Ex. PW-146/A. He got
the ration card prepared by paying Rs. 100/- to Abdul Jabbar.
196. PW-147 is Sh. Shakeel. He is brother-in-law of PW-146
Md. Arshad and as such he has corroborated his version.
FIR No. 688/00, PS Kotwali
: 107 :
197. PW-148 is SI Zile Singh. ON 25.12.2000, he along with
other staff reached a flat no. 308-A, DDA Flat, Gazhipur as
there was secret information about the presence of accused Md.
Arif @ Ashfaq there. He reached there at about 12.45 am and
was apprehended. In his cursory search, a pistol of 7.63 bore
was recovered. Its magazine was checked and it was found to
contain five rounds. One round was in the chamber of the
postol. Ins. Ved Parkash prepared sketch of the pistol and
cartridges vide Ex. PW-148/A. The recovered pistol and
cartridges were seized vide memo Ex. PW-148/B after filling
up CFSL form. Ins. Ved Parkash prepared a rukka and got the
case registered at Police Station Kalyan Puri through Ct.
Rameshwar. SI Harender Singh was summoned to the spot and
investigation of the instant case was handed over to him. In the
personal search of accused Md. Arif, Rs. 1,000/- and a mobile
phone of Motorolla was recovered and same was seized vide
Ex. PW-148/C. Accused was arrested and his arrest memo was
prepared vide Ex. PW-148/D. He was interrogated and his
disclosure statement was recorded vide Ex. PW-148/E. He had
identified the pistol Ex. PW-148/1, live cartridges Ex. PW-
FIR No. 688/00, PS Kotwali
: 108 :
148/2 to 6 and fired cartridges Ex. PW-148/7 and magazine Ex.
PW-148/8.
198. PW-149 is Ct. Satbir Singh. He is photographer. On
23.12.2000, he went to Vijaya Ghat, where one A.K. 56 rifle
was lying and Ins. Roop Lal was also present and he took
photographs of the same from different angles. He also took
photographs of the notes, which were lying near the wall of
Red Fort. The photographs are Ex. PW-149/1 to 6 and
negatives of which Ex. PW-149/7 to 13. One photograph could
not be developed.
199. PW-150 is Sh. Satish Jacab. In the month of December
2000, he was Deputy Bureau Chief of British Broadcasting
Corporation, Delhi. He received application Ex. PW-150/A
seeking the details of the calls received in the office of BBC
regarding shoot-out at Red Fort. He gave a reply vide Ex. PW-
150/B stating therein that calls were received by Ayenjeet Sen,
Desk Editor on 22.12.2000 at about 9.00 pm. He also
informed the IO vide Ex. PW-150/C that Sh. Altaf Hussain was
the BBC Correspondent stationed at Sri Nagar.
200.PW-151 is Sh. Azmat Imam Khan. He deposed that he got
FIR No. 688/00, PS Kotwali
: 109 :
his ration card Ex. PW-205/B prepared through accused
Matloob after paying him Rs. 400 to 600/-. The ration card
was seized by the police vide memo Ex. PW-151/A.
201. PW-152 is Ct. Parveen. He proved the DD entries Ex. PW-
152/A to F which were made regarding departure and arrival of
the officer. Vide DD No. 30-A Ex. 152/A, SI Arvind Pratap
Singh returned to the police Station after delivering the special
reports to the senior official, DD No. 3-A Ex. PW-152/B, a
responsibility for shoot-out in Red Fort was claimed by
Lashker-e-Toida, vide DD no. 9-A Ex. PW-152/C, Ins Roop
Lal arrived in the PS on 23.12.2000 and deposited the exhibits
in the Mal Khana, vide DD No. 49 Ex. PW-152/D Ins. Roop
Lal departed for patrolling and vide DD no. 73-B and 19-A Ex.
PW-152/E and F, SI Naresh and SI Sanjeev Kumar made their
departure entries along with staff.
202. PW-153 is Sh. Shahnawaz. He has corroborated the version
of PW-151 Sh. Azmat Imam Khan regarding seizure of ration
card vide Ex. PW-151/A.
FIR No. 688/00, PS Kotwali
: 110 :
203. PW-154 is Mohd. Taufiq Khan. His ration card Ex. PW-
154/A was seized by the police vide Ex. PW-154/B on
09.02.2001.
204. PW-155 is Abdul Rashid. He deposed that his ration card
Ex. PW-155/A was seized by the police vide memo Ex. PW-
155/B and he got the same prepared from the Ration Office.
205. PW-156 is Md. Tauhid Khan. He is son of PW-154 Md.
Taufiq Khan and as such he has corroborated his version.
206. PW-157 is Sh. Sajid Khan. He was present at the time, when
the ration of PW-154 Md. Taufiq Khan was seized and as such,
he has corroborated his version.
207. PW-158 is Mohd. Wasi. He has corroborated the version of
PW-155 Sh. Abdul Rashid. He has also proved a slip Ex. PW-
158/A.
208. PW-159 is Sh. Nazmul Hoda. He has corroborated the
version of PW-158 Sh. Mohd. Wasi as he was also present,
when ration card was seized.
209. PW-160 is Ct. Praduman Kumar. On 22.12.2000, he went
to Red Fort. He took photographs of place of occurrence
including supply depot, M.T. Park and training store. His
FIR No. 688/00, PS Kotwali
: 111 :
photographs are Ex. PW-160/1 to 24, negatives of which are
Ex. PW-160/25 to 48. Again on 06.04.2001, he took
photographs of the bushes behind the Red Fort and these
photographs are Exs. PW-160/49 to 54, negatives of which are
Ex. PW-160/55 to 60.
210. PW-161 is SI Hans Raj. On 04.02.2001, he was posted at
Police Post Bali Maran. On that day, he accompanied Ins.
Surender Sund to the property No. 5123 of Sher Zaman for
attaching his property and some property was attached vide Ex.
PW-161/A.
211. PW-162 is Ins. J.S. Chauhan of Border Security Force. He
deposed that on 26.12.2000, a message to the effect that
militant wanted in shoot-out inside Red Fort known as Ashfaq
Ahmad had been apprehended and other militant Abu Shamal
had been killed, was intercepted by the BSF when the message
was being passed by militant Abu Shakar to a station in Khyber
in Pakistan occupied Kashmir. This message was forwarded
to the concerned officers by Sh. B.S. Virk, DIG West and same
is now Ex. PW-162/A.
212. PW-163 is Sh. Shahnawaj Ahmad. He was class fellow of
FIR No. 688/00, PS Kotwali
: 112 :
Shahvej Akhtar and Faisal in 1998 at Aptech Computer
Centre. He further deposed that Faisal used to reside at the
house of Nain Singh and he had a personal computer on which
Faisal and he used to practice. Later on, Faisal along with Arif
opened a computer centre by the name “Knowledge Plus” in
Okhla and both of them were appointed faculty members.
213. PW-164 is Ms. Anju Goel From December 95 to August
2000, she was posted as LDC in Circle-6, Okhla, Phase-II. She
used to deal with the preparation of the ration cards. She
further deposed that after receipt of the forms in the office for
issuance of ration cards, same were used to be got verified
through the Area Inspector and thereafter ration cards were
used to be prepared as per the recommendation of the
Inspector. She deposed that ration card Ex. PW-164/A does
not bear any entry in her hand, nor the same contains her
initials. She further deposed that police had obtained her
handwriting and signatures on four pages vide Exs. PW-164/B
to E.
214. PW-165 is Sh. Dharamvir Sharma. He was posted as Food &
Supply Officer from 17.07.97 to 20.07.2000 at Circle-6, Okhla
FIR No. 688/00, PS Kotwali
: 113 :
and accused Mool Chand was an Inspector under him. The
duties of accused Mool Chand included maintenance of public
distribution system in his area and to accept forms for issuance
of ration cards and to verify and to report thereon. He further
deposed that ration card Ex. PW-164/A of Ashfaq Ahmad
Khan was not issued by him nor the same bears his initial or
that of Ms. Anju Goel, clerk in his office. He further deposed
that police obtained his specimen signatures vide Ex. PW-
165/A to D. He further deposed that ration card Exs. PW-
154/A, PW-184/B, PW-203/A, PW-178/B and PW-205/A and
B do not bear his signatures as same were not issued from his
office.
215. PW-166 is HC Rameshwar Dayal. On 25.12.2000, he had
accompanied PW-173 Ins. Ved Parkash, PW-148 SI Zile Singh
and other staff to flat no. 308, DDA Flat, Gazhipur, Delhi as
such he has corroborated the version of PW-148 SI Zile Singh.
He further deposed that he took the rukka Ex. PW-136/A to
Police Station Kalyan Puri and got the present case registered
and after registration of the case, he returned to the spot and
handed over the copy of FIR and rukka to the IO. On
FIR No. 688/00, PS Kotwali
: 114 :
02.01.2001, he took a pulanda from Police Station Kalyan Puri
and deposited the same with FSL, Malviya Nagar in intact
condition.
216. PW-167 is Sh. G.L. Meena, Deputy Secretary (Home) New
Delhi. He deposed that on 20.03.2001 and 21.03.2001,
Hon'ble Lt. Governor of Delhi granted the sanction for
prosecution of accused Md. Arif @ Ashfaq @ Abu Hamal U/s
121/121-A IPC, U/s 25/27 Arms Act, U/s 4/5 Explosive
Substances Act U/s 7 of Explosive Substance Act and for
prosecution of Farukh Ahmad Quasid and Nazir Ahmad
Quasid and other accused u/s 121/121-A IPC. Similarly,
sanction was also granted on 29.11.2001 for prosecution of
accused Atturddin (since P.O.) u/s 121/121-A IPC. These
sanction were conveyed by him to the concerned officials and
now are Exs. PW-167/A to D.
217. PW-168 is Ins. R.S. Bhasin. He joined the investigation of
the case on 27.12.2000, when he interrogated accused
Rehmana. He again joined the investigation of the case on
01.01.2001 with Ins. Hawa singh. Accused Ashfaq made a
disclosure statement vide Ex. PW-168/A. Consequent to the
FIR No. 688/00, PS Kotwali
: 115 :
disclosure statement, a raiding party was organized in which SI
Mukesh Kalia of Police Post Jamia, Sh. Raghuvir Singh
security guard of Jamia Milia University and one public man
Sh. Devender Kumar were also joined. As per disclosure
statement, accused Ashfaq got recovered three HG-84 hand-
grenades from near the boundary wall of Jamia Milia
University. Same were sealed and seized vide Ex. PW-168/B.
Form CFSL was also filled in. He prepared a rukka Ex. PW-
168/C and got a case registered through Ct. Vijay Singh at
Police Station New Friends Colony. Thereafter, investigation
of the case was assigned to SI Sunder Lal. SI Sunder Lal
interrogated the accused and recorded his disclosure Ex. PW-
168/D. Later on, these hand-grenades were got destroyed from
the official of NSG.
218. PW-169 is SI Sunil Kumar. He joined the investigation of
the case on 16.02.2001. On that day, he deposited the
specimen handwriting and questioned documents in intact
condition with the CFSL after collecting the same from the
MHCM of police station Kotwali. On 17.02.2001, he along
with Ins. Surender Sand and SI Amarjeet Sehgal went to
FIR No. 688/00, PS Kotwali
: 116 :
Akashdeep Motor Driving College, Ghaziabad, but the same
was found closed. However, on the board of Akashdeep Motor
Driving College, telephone numbers 4717676 and 4765453
were written and a guarantee to get all works from A to Z done
was also written. Telephone number 4717676 was found to be
in the name of Sh. Manoj Kumar while telephone no. 4765453
was found to be in the name of one Shanti Devi. On the same
day, they also went to Star Motor Driving College, Ghaziabad
and from there they took three forms from a heap of forms
lying there. Form no. 2 and 3 were for issuing learning licence
from Haryana and Delhi and form no. 4 for getting permanent
licence from Ghaziabad. These forms were seized vide memo
Ex. PW-169/A and are now Exs. PW-169/B-1 to B-3.
Similarly, from house no. 184, Gulzar Abrahim, Chatta Road,
Munia ka Pul, Meerut, they also collected three forms from
thousands of forms lying there and these forms were for getting
learning licence from Haryana and Delhi as well as permanent
licence from Ghaziabad. The three forms were seized vide
memo Ex. PW-169/C and forms are Exs. PW-169/D-1 to D-3.
Similarly, on 02.03.2001 Kushal Pal came to the office of
FIR No. 688/00, PS Kotwali
: 117 :
Special Cell in his presence and brought a register with 110
pages and at page no. 65, entry no.-929, ration card bearing no.
258754 of one Ashfaq Ahmad Khan R/o F-17/12, Batla House,
Okhla, was found to be entered. The register is Ex. PW-169/E
and it was seized vide memo Ex. PW-169/F.
219. PW-170 is Sh. Vijay Kumar. He is younger brother of Naik
Ashok Kumar. He identified the dead body of his brother on
23.12.00 vide his statement Ex. PW-170/A.
220. PW-171 is SI Sudhir Singh. On 22.12.00, he reached the
Red Fort at about 9.40 pm and from there he went to AFMC
hospital where injured Naik Ashok Kumar had already been
taken. However, Naik Ashok Kumar had expired by that time
and thereafter he collected his MLC, accompanied the dead
body to Base Hospital and from there returned to Red Fort. On
the next day, he went to the mortuary, Subzi Mandi with IO
Ins. Roop Lal.
221. PW-172 is Sh. Manohar Lal. He is clerk in the Department
of Education, NCT of Delhi. Earlier, he was posted in ration
office, circle-6, Okhla. He deposed that ration card No.
258754, Ex. PW-164/A, in the name of Ashfaq Ahmad was not
FIR No. 688/00, PS Kotwali
: 118 :
issued from his office. He has corroborated the version of PW-
7 Sh. S.R. Raghav and PW-164 Ms. Anju Goel.
222. PW-173 is Ins. Ved Parkash. He joined the investigation
of the case on 25.12.2000 as a member of raiding party, which
raided the house no. 308-A, DDA Flats, Gazhipur, Delhi, from
where accused Arif @ Ashfaq was apprehended at 12.45 am.
He further deposed that in his personal search, a pistol loaded
with six cartridges was recovered. On this point, he has
corroborated the version of PW-148 SI Zile Singh. He
prepared rukka Ex. PW-173/A and got the case registered
under Arms Act at Police Station Kalyan Puri. He further
deposed that in the house-search, ration card Ex. PW-164/A,
driving licence Ex. PW-13/A, cheque-book Ex. PW-173/C,
ATM card Ex. PW-173/D, three pay-in-slips Exs. PW-173/E to
G, passport of Rehmana Yusuf Farukhi Ex. PW-173/H, her
Identity-card of a college Ex. PW-173/I, cheque-book of SBI
Ex. PW-173/J, one cash deposit slip of Standard Chartered
Grindlays Bank Ex. PW-173/K, personal diary Ex. PW-173/L
and one digital diary Ex. PW-173/M were recovered and the
same were seized vide memo Ex. PW-173/B. On 29.12.2000,
FIR No. 688/00, PS Kotwali
: 119 :
he visited the Standard Chartered Bank, Cannaught Place and
collected the photocopies of account opening forms and
statements of account of all the three accounts bearing Nos.
32263962 belonging to M/s Nazir Sons, 28552609 of Mr. Bilal
Ahmad Kawa and 32181669 of Mr. Farukh Ahmad Quasid.
His application in this regard is Ex. PW-173/N and photocopies
of these documents are mark as PW-173/A-1 to 25. On
30.12.2000, he moved another application Ex. PW-173/O
praying for receipts of the cash deposits in the three accounts
and nine receipts were handed over to him, which are now Exs.
PW-27/1 to 9. Thereafter, he has corroborated the version of
PW-22 Sh. Sanjeev Srivastava.
223. PW-174 is Sh. Kushal Kumar. He deposed that he used to
run a Fair Price Shop no. 8993, at premises No. 79/786
Jogabai, Okhla, which was taken on rent by him from father of
accused Matloob Alam. Accused Matloob also had a Fair Price
Shop in the same premises. He further deposed that in August
2000, accused Md. Arif @ Ashfaq had come to his shop with a
new ration card Ex. 164/A and asked him to enter the same at
his shop, as he had been sent by Matloob Alam and Mool
FIR No. 688/00, PS Kotwali
: 120 :
Chand Sharma. Mool Chand Sharma was Food Inspector of
his area and he used to inspect his shop. He entered the ration
card Ex. PW-164/A at his shop vide entry Ex. PW-174/A in his
register Ex. PW-169/E. He had informed Mool Chand
Sharma about this ration card. He used to prepare a daily stock
register and two registers are Exs. PW-174/B and C. Monthly
statement sent by him regarding his shop are Exs. PW-174/D1
to D7 and these were used to be checked by Mool Chand
Sharma. These statements were seized by the police vide Ex.
PW-165/A. Inspection report of the ship is Ex. PW-174/E and
the inspection notes of Mool Chand Sharma are Exs. PW-
174/F-1 to 10. Entry no. 213 with card no. 258719 in the name
of Mohd. Isaque was also made by him. Entries of some ration
cards were also made in register Ex. PW-169/E by accused
Matloob Alam. Register Ex. PW-169/E was taken away in the
month of January by accused Matloob Alam on the pretext for
checking some ration cards and when the same was returned,
there were cuttings and overwritings in the register and when
he questioned accused Matloob Alam about these cutting and
overwritings, he replied that it does not matter and this fact was
FIR No. 688/00, PS Kotwali
: 121 :
also brought into the notice of Mool Chand Sharma.
224. PW-175 is Ct. Suresh Kumar of BSF. On 26.12.2000, he
was posted at Interception Cell of the BSF situated at Karan
Nagar, Sri Nagar. On that day, he intercepted a message which
was being passed from Sri Nagar to Pakistan through a wireless
set and the message was that Delhi Police had killed one
militant Shammal Bhai and one more militant Abu Hamad
Hazarvi (whose real name is Ashfaq) had been apprehended
and militant Bilal Babbar was hiding at his hideout in Delhi.
The text of the message is Ex. PW-162/A. The message was
passed on to senior officials.
225. PW-176 is HC Sunil Kumar. On 26.12.2000, he was posted
as Duty officer at PS New Friends Colony and on receipt of
rukka, he registered FIR no. 632/2000, carbon copy of which is
Ex. PW-176/A, u/s 188 IPC against Gian Chand. The case
resulted in conviction vide order dated 09.03.2001. A DD
entry no. 6-A Ex. PW-176/B was recorded regarding
registration of the case.
226. PW-177 is Ct. Ranbir Singh. He brought the carbon copy of
FIRs no. 13/01, 259/01 and 630/00 registered at PS New
FIR No. 688/00, PS Kotwali
: 122 :
Friends Colony vide Exs. PW-177/A to C. He also proved DD
no. 11 made by Ins. R.S. Bhasin vide Ex. PW-177/D.
227. PW-178 is Md. Arif. On 20.02.2001, ration card Ex. PW-
178/B of one Mohd. Shamim was seized by the police vide Ex.
PW-178/A in his presence.
228. PW-179 is Havildar Dhan Singh. On 23.12.2000, he along
with Subedar Man Singh got conducted postmortem on the
dead body of Abdullah Thakur and thereafter handed over his
dead body to his relatives vide Ex. PW-179/A.
229. PW-180 is Sh. Gulzar Ahmad. Senior Telecome Assistant,
Sri Nagar. He deposed that IO Ins. Surender Sund had moved
an application Ex. PW-180/B dated nil for supplying the names
and addresses of the subscribers of telephones mentioned in the
application and the same was supplied by Sh. M.L. Raina,
Chief Accounts Officer vide Ex. PW-180/A.
230. PW-181 is Sh. Moti Lal. He was employed as a trainer at
Seven Star Motor Driving College, where accused Devender
was manager. In the month of August-September 2000, he
gave driving training to accused Ashfaq on car No. 1905, as per
the instructions of Devender Singh.
FIR No. 688/00, PS Kotwali
: 123 :
231. PW-182 is Sh. Gopal Krishan. He has corroborated the
version of PW-86 Ins. Pratap Singh Dhillon regarding a
negative being identified by accused Md. Arif @ Ashfaq as that
of Abu Bilal.
232. PW-183 is SI Sanjay Kumar. On 22.12.2000, at about 9.45
pm, he reached the spot as per the instructions of Ins. Roop Lal,
as such he has corroborated the version of PW-15 HC Virender
Kumar, PW-114 Naib Subedar Dharam Chand, PW-123
Havildar Bhupender Singh and PW-189 Major S.P. Patvardhan.
He also deposed that they were sent to rear side of Red Fort for
carrying out search and outside the Red Fort, just below the
rear wall, a chit along with some currency notes was found and
the chit bore mobile telephone no. 9811278510. The currency
notes comprised ten notes of Rs. 100/- eight note of Rs. 50/-
one note of Rs. 10/- and one note of Rs. 5/-, total amounting to
Rs. 1145. These currency notes and chit were handed over to
Ins. Roop Lal and were seized vide Ex. PW-183/A and chit
with telephone number was pasted on a paper Ex. PW-183/B
and the chit is now Ex. PW-183/C. Earth control was lifted
from the spot. Thereafter, they came to the inside of Red Fort
FIR No. 688/00, PS Kotwali
: 124 :
and recovered a rope measuring about 50 feet and black cap
with a monogram. These articles were also handed over to Ins.
Roop Lal and were seized by him vide Ex. PW-183/D. He has
identified the chit, currency notes, rope as well as cap vide Ex.
PW-183/1 to 23.
233. PW-184 is Sh. Ibadur Rehman. On 11.02.2001, police
seized a ration card, Ex. PW-184/A, of one Harun Ali, which
was produced by his brother Samaryab Ali, vide Ex. PW-
184/B.
234. PW-185 is Col. R.P.S. Bhaturia. On 22.12.2000, he was
posted at Commanding Officer of 7th Raj Rifles at Red Fort.
When he was informed about the incident of firing, he reached
the spot. He also deposed that in the firing incident, three of
his jawans namely Uma Shankar, Abdullah Thakur and Ashok
Kumar had died. He also filed a complaint Ex. PW-185/A in
this regard.
235. PW-186 is Meer Rasik Ahmad. On 09.01.2001, he was
posted as SHO, Sadar, Sri Nagar. On that day, Ins. Surender
Sund along with accused Ashfaq came to the police station and
he accompanied them to the house of Nazir Ahmad Quasid and
FIR No. 688/00, PS Kotwali
: 125 :
Farukh Ahmad Quasid.
236. PW-187 is Dr. K.L. Sharma. On 23.12.2000, he conducted
postmortem on the dead bodies of Uma Shankar, Abdullah
Thakur and Ashok Kumar. He deposed that the injuries were
caused by firearm and all injuries caused were ante-mortem in
nature and were sufficient to cause death in ordinary course of
nature.
237. PW-188 is Sh. Samaryab Ali. He has corroborated the
version of PW-184 Ibadur Rehman regarding seizure of ration
card.
238. PW-189 is Major S.P. Patvardhan. On 22.12.2000, he was
posted as Adjutant to 7th Raj Rifles, Red Fort, Delhi. At about
9.00 pm, he was present at his residence, when he heard sound
of firing, which was coming from the direction of MT Park.
On this, he rushed to the direction of firing and was informed
that two persons in black dress had come from the direction of
Salimgarh Gate and were carrying AK Assault rifles and fired
upon civilian sentry Abdullah Thakur and had killed him.
Thereafter, they came to the MT park and fired upon rifleman
Uma Shankar and killed him on the spot. Thereafter, these two
FIR No. 688/00, PS Kotwali
: 126 :
persons came to the Unit Lines and fired upon Naik Ashok
Kumar and injured him. Thereafter, they escaped towards ASI
area. They were fired upon by Quick Reaction team of Army,
which comprised Major Nagpal, Major Devender Singh and
some army jawans. Police was informed. However, he had
ordered the gates of the Red Fort to be closed and for this
reason, it took some time for the police to reach the spot. Ins.
Roop Lal along with staff reached there and he handed over the
FIR Ex. PW-189/A. During search, 28 live and 40 fired
cartridges were recovered from the Red Fort. He had also
shown the place of incident to the IO. Three Magazines, live
cartridges and fired cases were handed over to the police and
the police prepared sketch thereof vide Ex. PW-189/B and the
same were seized vide Ex. PW-189/C. He has identified all the
articles recovered from the spot and seized by the police and
same are Ex. PW-189/1 to 71. On 15.02.2001, he had also
shown the place of incident to the draftsman. He also deposed
that on that day, Hindi version of light & sound programme
scheduled from 6.00 pm to 7.00 pm was not held on account of
electricity failure.
FIR No. 688/00, PS Kotwali
: 127 :
239. PW-190 is HC Azmat Khan. On 01.01.2001, he was posted
as MHCM at PS New Friends Colony. On that day, Ins. R.S.
Bhasin deposited three sealed parcels with CFSL Form with
him and he made a entry in the register in this regard. On
15.01.2001, SI Girish Jain took the parcel to the Bomb
Disposal Unit of NSG and deposited a sealed parcel sealed with
the seal of GJ containing the remnants of the defused hand-
grenades. On 05.03.2001, these parcels were handed over to SI
Sunder Lal for being deposited with CFSL, Lodhi Colony. The
entries in this regard are Ex. PW-190/A.
240. PW-191 is Smt. Sunita, LDC, Food & Supply Office. On
07.06.2001, she was posted in circle-6 of Food & Supply
Department and gave specimen of the two rubber stamps vide
Ex. PW-191/A to C and PW-191/D and E in FIR no. 688/00,
PS Kotwali. Similarly, She had also given the specimen stamp
impressions on nine pages of the two stamps in FIR no. 65/01,
PS New Friends Colony vide Ex. PW-191/F to O.
241. PW-192 is Sh. N.N. Mahtrotra, Dy. Secretary, Home,
(Retired). He deposed that on 16.07.2000, the file of FIR No.
3/01, PS New Friends Colony was received for grant of
FIR No. 688/00, PS Kotwali
: 128 :
sanction u/s 7 of Explosive Substances Act against accused
Md. Arif @ Ashfaq . The file consisted of draft charge-sheet,
site plan, statements of witnesses, CFSL report and other
material and Hon'ble Lt. Governor after applying his mind, was
pleased to grant sanction, which was conveyed by him. The
sanction is Ex. PW-192/A.
242. PW-193 is Major Sanjay Kumar Shukla. On 15.01.2001, he
was posted at Bomb Disposal Squad/Unit of NSG. On that
day, SI Girish Jain had brought three hand-grenades for
destruction, which were destroyed by him and remnants were
handed over to SI Girish Jain, along with Destruction
Certificate vide Ex. PW-85/C. He had also destroyed three
more hand-grenades of FIR no. 630/00, PS New Friends
Colony and returned its remnants to the concerned police
official. He has identified the remnants Ex. PW-193/1 and 2.
243. PW-194 is SI Harender Singh. On 26.12.2000 at about
12.55 am, he was summoned by Ins. Ved Parkash at flat no.
308-A, DDA Flat, Gazhipur, Delhi. He reached there, where
Ins. Ved Parkash along with staff was present with accused
Ashfaq in their custody. He was informed that a pistol was
FIR No. 688/00, PS Kotwali
: 129 :
recovered from accused Ashfaq along with cartridges. A
sealed parcel containing the pistol and cartridges, recovery
memo and sketch was handed over to him. Rukka was sent for
registration of the case. He inspected the scene of occurrence
and prepared a site plan Ex. PW-194/A. Thereafter, Ins. Ved
Parkash conducted search of house of Rehmana Yusuf and in
this regard, he has corroborated the version of PW-173 Ins.
Ved Parkash. Ct. Rameshwar returned to the spot after getting
the case registered and handed over the carbon copy of the FIR
to him for further investigation. He recorded the statements of
the witnesses and interrogated accused Md. Arif @ Ashfaq and
arrested him in this case vide Ex. PW-148/D, conducted his
body inspection vide memo Ex. PW-194/B, conducted personal
search of accused Md. Arif @ Ashfaq vide memo Ex. PW-
194/C and in the personal search, Rs. 1000/- in cash and a
mobile telephone, of motorolla company, bearing card No.
0006680375 with mobile no. 9811278510 was recovered. He
identified the telephone as well as the currency notes Exs. PW-
194/D-1 to D-10. Disclosure statement Ex. PW-148/E of the
accused Md. Arif @ Ashfaq was also recorded and intimation
FIR No. 688/00, PS Kotwali
: 130 :
was sent to his relatives regarding his arrest vide Ex. PW-
194/E. The accused was also arrested in FIR no. 688/00, PS
Kotwali. Case property was deposited in the Malkhana and
thereafter sent to FSL for examination. Permission was
obtained u/s 39 of Arms Act, statements of witnesses were
recorded and investigation in FIR no. 419/00, PS Kalyan Puri,
was completed.
244. PW-195 is Sh. Rakesh Bakshi, Senior Security Manager,
Bharti Cellular Ltd. Delhi. He deposed that on 20.02.2001, he
was working as security manager in the aforesaid company.
He received a request letter Ex. PW-195/A from the IO Ins.
Surender Sund for call details of Mobile No. 9810263721. He
collected information vide Ex. PW-195/B and supplied the
same to the IO through a letter Ex. PW-195/C.
245. PW-196 is Ct. Ravinder Kumar. On 22.12.2000, he reached
place of incident. There, dead bodies of Uma Shankar and
Abdullah Thakur were removed by him and Ct. Krishan Kumar
to the Base hospital. Dead body of Ashok Kumar was also in
the custody of SI Sudhir Kumar. The three dead bodies were
removed to the Subzi Mandi mortuary, where postmortem was
FIR No. 688/00, PS Kotwali
: 131 :
conducted and after postmortem, the dead bodies were handed
over to army officials. After postmortem, Dr. K.L. Sharma
handed over eight sealed parcels, which were handed over by
him to the SHO, and were seized by him vide Ex. PW-196/A.
246. PW-197 is Sh. T.N. Meena, who was Food & Supply Officer
in the office of Commissioner, Food & Supply, Delhi in 2000.
He deposed that vide letter Exs. PW-197/A and B, police had
sought certain details about the posting of accused Mool Chand
Sharma, who was a Food Inspector in the Department, printing
of ration cards and fixation of quota of Fair Price Shops. The
reply was given vide Ex. PW-197/C. The duties and
responsibilities of a Food Inspector are Ex. PW-197/D.
247. PW-198 is Sh. Rajiv Pandit, General Manager,
Administration Security, ESSAR. He deposed that IO Ins.
Surender Sund moved an application seeking call details about
mobile telephone no. 9811278510. The details was supplied for
the period 26.10.2000 to 23.12.2000 vide letter Ex. PW-198/A.
The sim-card of aforesaid mobile number was used in two
different handsets and the call details running into three pages
are Exs. PW-198/B-1 to B-3 were supplied by him. He had
FIR No. 688/00, PS Kotwali
: 132 :
also given the cell-ID (Identification of the Cell site) vide Ex.
PW-198/C. He further deposed that on 20.02.2001, IO Ins.
Surender Sund moved another application for seeking details of
IMEI No. 449173405451240 and 445199440940204 and speed
card no. 0006680375. He had furnished the requisite details as
well as call details of mobile numbers 9811242154 and
9811278510 vide Ex. PW-198/D. Call details of mobile no.
9811242154 are Ex. PW-198/E, which runs into nine pages.
The detail contains incoming as well as outgoing calls.
Similarly, detail of mobile no. 9811278510 were also provided
to the IO on his application Ex. PW-198/F and same runs into
eleven pages and the details are Ex. PW-198/G. The call which
was made on 22.12.2000 at 19.41.35 hours from telephone
number 9811278510 was made from Chandni Chowk to
telephone no. 0194452918. Similarly, call which was made
from the aforesaid telephone number on 21.25.25 hours, was
made to telephone no. 0113355751(BBC) and the position of
the caller was at Kashmiri Gate. Next calls were made at
21.27.30, 21.33.14, 21.33.45 hours to telephone number
0194452918 and to telephone number 0113355751 and at
FIR No. 688/00, PS Kotwali
: 133 :
21.50.55 hours a telephone call was received on the aforesaid
telephone and the caller was at Chandni Chowk. Next call was
received at 21.52.05 hours when the cell was at Chandni
Chowk. A call was received 22.06.008 made by telephone
number 114690042 and the receiver was at Chandni Chowk.
248. PW-199 is Sh. Rakesh Behari, Joint Secretary to Govt. of
India. On 13.06.2001, he was posted as Commissioner, Food
& Supply, Govt. of NCT, Delhi. He was Head of the
department of accused Mool Chand Sharma, who was posted as
Inspector under him. On receipt of a letter u/s 197 Cr.P.C, he
perused the entire record, statements of the witnesses as well as
vigilance report and after application of mind, he granted
sanction for his prosecution u/s 197 Cr.P.C vide Ex. PW-
199/A.
249. PW-200 is Ins. Shamsher Singh. On 03.01.2001, he had
accompanied PW-13 Ins. Rajender Singh to RTO Ghaziabad
and as such he has corroborated his version.
250. PW-201 is Sh. Raj Kumar Sharma, Superintendent of Police
Lasdweep. He deposed that on 12.02.2001, he was posted as
Additional DCP (East) Delhi. File of Md. Arif @ Ashfaq was
FIR No. 688/00, PS Kotwali
: 134 :
placed before him for granting sanction u/s 39 of Arms Act and
on perusal of the file, he granted sanction vide Ex. PW-201/A.
251. PW-202 is Sh. N.B. Bardhan, Senior Scientific Officer cum
Asstt. Chemical Examiner, CFSL, Delhi. He deposed that on
24.01.2002, 39 sealed parcels were received by him bearing
mark no. 1 to 6, 7-A to 7-H, 8 to 17, , 18, 18-A, 19, 19-A, 23,
27, 29, 31, 32, 34, 35 and 36 and these contained one 7.62 mm
assault rifle fired cartridgecase mark C/1 Ex. No. 3, assault rifle
fired cartridgecase C/2 Ex. No. 4, lump of dust Ex. 7-A, lump
of dust Ex. 7-B, lump of grey colour dust Ex. 7-C, lump of grey
colour dust 7-D, lump of grey dust Ex. 7-E, lump of grey
colour dust Ex. 7-F, one fired bullet of assault rifle mark BC/1,
lump of grey colour dust, lump of grey colour dust Ex. 7-H,
metallic railing piece Ex. 13, three empty magazines of assault
rifle mark M-1 to M-3, twenty-eight 7.62 assault rifle
cartridges Ex. PW-18, mark C/3 to C/30, one assault rifle
cartridge mark C/31, forty 7.62 assault rifle fired cartridges
mark C/32 to C/71, thirty-seven 7.62 mm assault rifle fired
cartridge cases C/73 to C/108, one small cloth cover sealed
with the seal of HS having thirty-two 7.62 mm assault rifle
FIR No. 688/00, PS Kotwali
: 135 :
cartridges mark C/109 to C/140, one 7.62 mm (AK-56) assault
rifle mark W/1 with serial no. R-5781, two empty magazines of
7.62 assault rifle mark M/4 to M/5, one folding type kitchen
knife mark A/1, one pouch (bandoleer), four ARGES-SPL-
HGR-84 hand-grenades mark H/1 to H/4, four detonators with
attached liver mark D/1 to D/4, one 7.62 mm (AK-56) assault
rifle W/2 without its magazine bearing serial no. N-16341, one
empty magazine of 7.62 mm assault rifle mark N-6 and seven
7.62 mm assault rifle cartridges mark C/141 to C/147. He
examined all these parcels.
After examination, he found that assault rifle 7.62 mm
(AK-56), mark W/1 and assault rifle 7.62 mm (AK-56) mark
W/2 were found to be firearms as it defined in Arms Act and
were found to be in working order and were fired through.
Twenty-eight 7.62 mm assault rifle cartridges mark C/3 to
C/30, 7.62 mm assault rifle cartridge mark C/31, thirty-two
7.62 mm assault rifle cartridges mark C/109 to C/140 and
seven 7.62 mm assault rifle cartridges mark C/141 to C/147
were found to be ammunitions as defined under the Arms Act
and were live one. 7.62 mm assault rifle cartridge case mark
FIR No. 688/00, PS Kotwali
: 136 :
C/1, six 7.62 mm assault rifle cartridge cases mark C/49, C/52,
C/56, C/58, C/64 and C/71, twenty-one 7.62 mm assault rifle
cartridge cases mark C/72, C/74, C/75 to C/80, C/82 to C/84,
C/86, C/89, C/91, C/94 to C/96, C/102, C/106 to C/108 were
fired from 7.62 mm AK assault rifle mark W/1. Similarly, 7.62
mm assault rifle cartridge cases mark C/2, thirty-four 7.62 mm
assault rifle cartridge cases mark C/32 to C/48, C/50, C/51,
C/53 to C/55, C/59 to C/63 and C/65 to C/70, sixteen 7.62 mm
assault rifle cartridge cases mark C/73, C/77, C/81, C/85, C/87,
C/88, C/90, C/92, C/93, C/97, C/100, C/101, C/103 to C/105
were fired from 7.62 mm assault rifle (AK-56) mark W/2.
Fired bullet of 7.62 mm assault rifle mark BC/1 was fired from
7.62 mm assault rifle mark W/1. Four defused/dismantled
standard ARGES hand-grenades were live one and were
explosive substances as defined under the Explosive
Substances Act. The three magazines of 7.62 mm assault rifle
mark M/1 to M/3 and two magazines of 7.62 mm assault rifle
mark M/4 to M/5 and one 7.62 mm assault rifle mark M/6 were
found in working order and can be loaded in a standard 7.62
mm assault rifle. His opinion in this regard is Ex. PW-202/A.
FIR No. 688/00, PS Kotwali
: 137 :
He further deposed that twenty-eight live cartridges mark C/2
to C/30 could be loaded in assault rifle mark W/1 and W/2 and
can be fired from the said rifles.
He along with other officials also visited the spot on
23.12.2000. He also deposed that one 7.62 mm assault rifle
fitted with magazine in loaded condition was found adjacent to
an electric pole near the western boundary of Vijaya Ghat and
the same was photographed and unloaded under the supervision
of fingerprint expert in order to avoid destruction of chance
prints, if any and it was examined by fingerprint expert at PS
Kotwali. He also inspected the scene of crime inside the Red
Fort. He also visited the Red Fort on 26.12.2000 on the request
of Delhi Police, when arms, ammunitions and hand-grenades
were recovered outside Red Fort. On examination of the scene,
he saw one 7.62 mm AK-56 assault rifle without magazine, two
magazines and one bandoleer lying amidst the bushy plants
adjacent to Eastern side boundary wall of Red Fort. The spot
was photographed and exhibits were taken to PS Kotwali,
where these were examined for chance prints by fingerprint
expert. The bandoleer was found to contain four hand-
FIR No. 688/00, PS Kotwali
: 138 :
grenades and one kitchen knife. Two magazines were found to
contain thirty-two 7.62 mm live cartridges of assault rifle. He
prepared a site inspection report Ex. PW-202/B. He also
received a sealed parcel on 20.08.2001 with seal intact and it
was found to contain eleven 7.62 mm self-loading rifle fired
cartridge cases mark C/1 to C/11 and these were made by
ordnance factory, Kirki, India. These could not be loaded into
either of the two 7.62 assault rifle mark W/1 and W/2 and his
report in his regard is Ex. PW-202/C. He had identified the
entire case property including lump of grey colour Ex. PW-
202/1 and one cartridge of assault rifle 7.62 mm Ex. PW-202/2.
He also proved his report dated 18.09.2001 Ex. PW-202/D.
252. PW-203 is Sh. Babu Ram Joshi. He deposed that he got his
ration card Ex. PW-203/A prepared through accused Matloob
Alam and the same was seized by the police vide Ex. PW-
203/B as it was found to be duplicate one.
253. PW-204 is Sh. Rajesh Batra. He was posted as reader to
Asstt. Commissioner, Food & Supply, South Delhi. He handed
over to the police the photocopy of the licence of Fair Price
Shop of M/s Raj Store, R-79/787, Jogabai, Okhla, Delhi,
FIR No. 688/00, PS Kotwali
: 139 :
Circle-6. The photocopy of the licence is Ex. PW-204/A and it
was seized by the police vide Ex. PW-204/B.
254. PW-205 is Sh. Ami Lal Daksh, senior scientific
Asstt/Reporting officer, FSL, Govt. of India. On 06.06.2001
and 22.06.2001, he received the questioned documents with the
red ink enclosed writing and signature mark Q1 and Q2 and
stamp impressions mark Q15 and Q21 on consumer card No.
258712, writings and signatures mark Q3 & Q4 and stamp
impressions mark Q16 & Q22 on consumer card no. 258719,
writings and signatures mark Q5, Q5/1, Q6 and stamp
impression mark Q17 & Q23 on consumer Card no. 28775,
writings & signatures Q7, Q8, Q9 and stamp impression mark
Q18 & Q24 on consumer card no. 258785, writings &
signatures mark Q10, Q11 and stamp impressions mark Q19 &
Q25 on consumer card no. 258797 ; writings and signatures
mark Q12, Q13, Q14 and stamp impression mark Q20 & Q26
on consumer card No. 258799. On that day, standard
documents i.e. Blue enclosed specimen writings mark S1 to
S11 of accused Matloob Alam ; signatures mark S12 to S17 of
Dharambir Sharma ; S18 to S20 of Ms. Anju Goel ; sample
FIR No. 688/00, PS Kotwali
: 140 :
stamp impressions of rubber seal of Food & Supply department
circle 6 mark S21 to S24 of F.S.O./IGQ, Circle-6 (Okhla) and
S25 to S29 were also received in his office. He has seen the
questioned documents Ex. PW-154/A, PW-184/B, PW-203/A,
PW-178/B and other two documents Ex. PW-205/A and PW-
205/B. He has also seen the specimen standard writing with
signatures and stamp impression which were mark by him as
S1 to S29 and these are Ex. PW-205/C-1 to 20 and Ex. PW-
191/L, PW-191/M, PW-191/N, PW-191/O, PW-191/F, PW-
191/G, PW-191/H, PW-191/J and PW-191/K, which were sent
for comparison with questioned documents. All the aforesaid
documents were carefully examined by him and he had given
his opinion Ex. PW-205/D, which is signed by him at point A.
In his opinion, he stated that the stamp impression do not tally
with the standard impression and questioned signatures on Q2,
Q4, Q6, Q8, Q11 and Q13 were having some diversions from
the specimen signatures mark S-12 to S-17. The person, who
wrote these writings in mark S-1 to S-11 i.e. Accused Matloob
Alam also wrote the questioned writings Q3, Q5, Q10 and Q12
i.e writing in Ex. PW-154/A, PW-184/B, PW-178/B and PW-
FIR No. 688/00, PS Kotwali
: 141 :
205/A. He had observed similarity in the general features such
as writing, movement, speed, space, alignment, relative size
and proportion of character and nature of commencing and
terminating strokes etc.
255. PW-206 is Sh. A. Dey, Senior Scientific Officer. On
5.3.2001, he received one sealed parcel with the seal of GJ. On
opening the same, he found remnants of exploded hand-
grenades. On examination, he found presence of PETN based
high explosive. In this respect, he gave his report Ex. PW-
206/A and remnants of hand-grenades are collectively Ex. PW-
193/1. In case FIR no. 630/00, he had received 21 sealed
parcels. He has examined these parcels and gave his report that
7.62 mm Assault Rifle was in working order and had been fired
through and the cartridges had been fired from the said Assult
Rifle. His detailed report in this regard is Ex. PW-206/B,
which bears his signatures at point A.
256. PW-207 is Sh. Satish Garg. He is a resident of Gaziabad
and used to run a tea-shop in front of the office of Transport
Authority. He deposed that the people of Akash Deep Motor
Driving College used to come to the Authority to get driving
FIR No. 688/00, PS Kotwali
: 142 :
licences prepared and he also got the licence of one Mahendra
Kumar prepared through one of such employee, but accused
Shahanshah Alam was not one of the employees, who used to
visit the office of Transport Authority in connection with
preparation of driving licences. He has been cross-examined
by the learned Spl. PP wherein he also denied that accused
Shahanshah Alam used to visit the Licencing authority and he
got the licence of Mahender Kumar prepared through him.
257. PW-208 is Sh. Devender Kumar. He joined the investigation
of the case on 01.01.2001 on the request of police officials,
when he was passing through Jamia Milia University for some
personal work. At that time, accused Md. Arif @ Ashfaq was
also with the police party and on his pointing out, three hand-
grenades were recovered. As such, he has corroborated the
version of PW-168 Ins. R.S. Bhasin.
258. PW-209 is Sh. Raghubir Singh, security supervisor of Jamia
Milia University. He also joined the investigation of the case
on 01.01.2001 with PW-208 Sh. Devender Kumar and PW-
168 Ins. R.S. Bhasin and as such he has corroborated their
version in all material particulars.
FIR No. 688/00, PS Kotwali
: 143 :
259. PW-210 is Sh. Sushil Malhotra, owner of Star Motor Driving
College. He deposed that accused Devender was manager of
Star Motor Driving College at Jullena, Okhla. He also deposed
that Ex. PW-210/A is the attendance register of that branch,
which was used to be maintained by accused Devender and the
attendance page Ex. PW-210/B pertaining to the month of
August 2000, is also in the handwriting of accused Devender.
The entry at serial no. 381 at page 61 of Ex. PW-210/B, Ex.
PW-210/B-1 is also in the handwriting of accused Devender.
The entries Exs. PW-210/C and D in the daybook, whereby
accused Ashfaq paid Rs. 500/- on 28.08.2000 and Rs. 200/- on
30.08.2000 are also in the handwriting of accused Devender
and the daybook is Ex. PW-210/E. He also deposed that one
Moti Lal was a trainer at his college. Accused Rajiv Malhotra,
who is his cousin, runs a motor driving college in the name of
Seven Star Motor Driving College at Ghaziabad.
260. PW-211 is Sh. K.C. Varshney, Senior Scientific Officer. He
deposed that on 02.01.2001 he received a sealed parcel of FIR
NO. 419/00, U/s 25 Arms Act, PS Kalyan Puri. He opened the
sealed parcel and found one .30 inch/7.63 mm caliber pistol
FIR No. 688/00, PS Kotwali
: 144 :
bearing no. 310110255636 mark F-1 along with six cartridges
mark A-1 to A-6 and examined and test fired the same and
found that pistol was a firearm in working condition and
cartridges mark A-1 to A-6 were live ones and were
ammunitions as defined under Arms Act. His report is Ex.
PW-211/A. He identified the pistol as well as cartridges.
261. PW-212 is SI Manik Chand Patel, Lucknow, UP. He
deposed that accused Attruddin (P.O.) was wanted in FIR no.
342/00, u/s 307 RPC, PS Sher Garhi, Sri Nagar. On
information from the police of Jammu & Kashmir, he was
arrested, but with the help of public persons, he got himself
rescued and thereafter could not be arrested. In this regard,
FIR No. 14/01, PS Chowk Sadar, Distt. Luchnow was
registered. An attested copy of FIR is Ex. PW-212/A.
262. PW-213 is Ins. Gurmeet Singh. On 26.12.2000, he was
posted as SHO of PS New Friends Coloy, Delhi. On that day,
encounter took place between a team of special cell of Delhi
Police and a militant at house no. G-73, Muradi Road, Batla
House, New Delhi, in which one militant Abu Shamal @ Fazal
was killed and FIR no. 630/00 was registered u/s 307/186/353
FIR No. 688/00, PS Kotwali
: 145 :
IPC read with Sections 25/27 Arms Act and 4/5 Explosive
Substances Act. He got his dead body identified from accused
Md. Arif. He proved the inquest papers Exs. PW-213/A and B,
his photograph Ex. PW-213/C, seizure memo of a parcel from
the hospital Ex. PW-213/D and a seizure memo prepared
regarding door of house no. G-73, Muradi Road, Batla House is
Ex. PW-213/E.
263. PW-214 is Ins. Sunder Lal. On 01.01.2001, Ins. R.S. Bhasin
along with other staff got three hand-grenades recovered at the
instance of accused Md. Arif @ Ashfaq from Jamia Milia
University. Ins. Sunder Lal was summoned on the spot and
investigation of this case of recovery of explosives was handed
over to him. He sealed the three hand-grenades vide Ex. PW-
168/B and recorded the disclosure of the accused Ex. PW-
168/D. He prepared a site plan Ex. 214/A, recorded the
statements of the witnesses and arrested the accused vide
memo Ex. PW-214/B. He took police remand of the accused
and in order to recover further arms and ammunitions as per the
disclosure of the accused, took him to Sri Nagar, but nothing
was recovered from there. He also moved an application Ex.
FIR No. 688/00, PS Kotwali
: 146 :
PW-214/C dated 12.02.2001 for the destruction of the hand-
grenades and destruction order was passed vide Ex. PW-214/D.
He also obtained the sanction u/s 7 of the Explosive substances
Act vide Ex. PW-192/A. He completed the investigation of
FIR no. 3/01, PS New Friends Colony.
264. PW-215 is Sh. Yogesh Tyagi. He is a resident of
Ghaziabad and used to deposit the tax of vehicles at Ghaziabad
Transport Authority. He got the licence of one Chand prepared
after taking money from him, but he did not idenify accused
Shahanshah Alam as the person from whom, he got the licence
prepared. He has been cross-examined by the learned Spl. PP
wherein also he denied that he got the licence prepared from
accused Shahanshah Alam.
265. PW-216 is Dr. M.A. Ali, Senior Scientific Officer, Grade-I,
documents CFSL, New Delhi. He examined the questioned
documents and his reports are in great details, which are Exs.
PW-216/A and B.
266. PW-217 is SI Naresh Kumar. On 22.10.2000 at about 10.00
pm, he reached the spot inside the Red Fort on being
summoned there from PS Kotwali. On the spot, he found Ins.
FIR No. 688/00, PS Kotwali
: 147 :
Roop Lal, SI Rajender, SI Sudhir, Ct. Jitender along with other
staff as well as Capt. S.P. Patwardhan. He joined in the search
of the Red Fort as well as seizure of different objects from the
spot and also went to the hospital. As such he has corroborated
the version of earlier witnesses including PW-137 SI Rajender,
PW-183 SI Sanjay Kumar, PW-189 Capt. S.P. Patwardhan and
others.
267. PW-218 is SI Satyajit Sarin. He along with Ins. Hawa
Singh, SI Amardeep Sehgal and other staff reached flat no.
308-A, D.D.A. Flats, Gazhipur, Delhi, on 26.12.2000, where
accused Md. Arif @ Ashfaq Ahmad was present in the custody
of SI Harender in FIR no. 419/00, PS Kalyan Puri. Accused
Md. Arif @ Ashfaq was produced before Ins. Hawa Singh as
he had made disclosure Ex. PW-148/E to get the arms and
ammunitions of FIR no. 688/00, PS Kotwali recovered from
the back of the Red Fort. He was arrested in FIR No. 688/00
and was taken to the back of the Red Fort and efforts were
made to join the public persons, but nobody came forward to
join the proceedings. BDS, CFSL Team and photographer were
also summoned to the spot. On the pointing out of accused
FIR No. 688/00, PS Kotwali
: 148 :
Md. Arif, one AK-56 Rifle, two magazines tied to each other
and a bandoleer of military colour were recovered. On
checking the pockets of bandoleer, four hand-grenades were
recovered from four different pockets of it. The recovered
arms and ammunitions were taken to PS Kotwali where it were
examined by CFSL team and efforts were made to find chance-
prints and the weapons were also photographed. The four
hand-grenades were defused and the their detonators were also
separated. Two magazines were found to contain thirty live
cartridges and two live cartridges respectively. Sketch of AK-
56 assault rifle was prepared vide Ex. 218/A. Since both
magazines and the thirty-two recovered cartridges, which were
live, were of the same type, sketch of one magazine and one
cartridge was prepared vide Ex. PW-218/B. Kitchen knife was
also found in one of the pocket of the bandoleer. All the
recovered articles i.e. AK-56 rifle, two Magazines, thirty-two
live cartridges, pocket knife and bandoleer were seized vide
Ex. PW-218/C after filling up the CFSL form. He has
identified the entire case property including bandoleer Ex. PW-
218/1 and regarding identification of other articles, he has
FIR No. 688/00, PS Kotwali
: 149 :
corroborated the version of PW-125 Sh. S.K. Chadha, senior
scientific officer and PW-50 SI Virender Singh. The arrest
memo of accused Md. Arif @ Ashfaq is Ex. PW-218/D.
Thereafter, they returned to the office of Special Cell after
depositing the case property in the Mal Khana of PS Kotwali,
where accused Rehmana Yusuf Farooqui was also present. She
was interrogated and her disclosure statement was recorded
vide Ex.PW-218/F and her personal search was conducted vide
Ex. PW-69/A and her arrest memo was prepared vide Ex. PW-
218/E. He had also corroborated the version of PW-168 Ins.
R.S. Bhasin as well as PW-31 Sh. Azam Malik and PW-36
Mohd. Khalid regarding disclosure of accused Md. Arif @
Ashfaq and purchase of computers by him. Thereafter, he
along with SI Amardeep Sehgal went to Jammu & Kashmir for
arresting and interrogating accused Nazir Ahmad Quasid and
Farukh Ahmad Quasid, which they did after obtaining
permission from concerned authorities and in this regard, he
has corroborated the version of PW-98 Sh. Rattan Chand, PW-
101 Sh. Pritam Singh and PW-102 Sh. Hemraj Sharma, all jail
officials of Kot Bhalwal Jail, Jammu. They also arrested both
FIR No. 688/00, PS Kotwali
: 150 :
the accused and gave directions to jail officials to intimate
Delhi Police, when the two accused were released and their
application in this regard is Ex. PW-208/G. He also joined the
investigation of the case FIR no. 65/01, PS New Friends
Colony U/s 420/468/471/474 IPC, in which he seized the ration
cards of Akhtari Begum, Mustaq Ahmad, Shakila Begum,
Mohd. Arshad, Ali Imam Khan, Taufiq Khan, Abdul Rashid
and Sh. B.R. Joshi and has corroborated the version of these
witnesses, who have already been referred to.
268. PW-219 is Sh. Harun Ali. He also got his ration card
prepared through Raj Stores, but he has not supported the
prosecution version.
269. PW-220 is HC Jai Parkash. From 23.12.2000 to 14.05.2001,
he was Malkhana Mohrrir of PS Kotwali. During that period,
Ins. Roop Lal, Ins. Hawa Singh and Ins. S.K. Sund had
deposited case property with him in sealed condition regarding
which he made entries in register no. 19 and also sent some of
the case properties to CFSL for examination. The entries
made in this regard are Exs. PW-220/A to V.
270. PW-221 is Sh M. D. Sharma, Sub-Divisional Engineer,
FIR No. 688/00, PS Kotwali
: 151 :
Telephone Exchange, Minto Road. He deposed that on
19.03.2001, SI Satyajeet Sarin moved an application seeking
details of telephone number 3216574. He checked the record
and reported that the aforesaid telephone number was installed
at the house of Sadakat Ali at house no. 2437, Lal Quan, Delhi.
His reply is Ex. PW-221/A and copy of the application for
installation of telephone is Ex. PW-221/B.
271. PW-222 is Sh. H.G. Sharma, Sub-divisional Engineer,
Telephone Exchange, Okhla. He deposed that telephone no.
2631594 was installed at 18-C, Ground floor, Gaffur Nagar,
Okhala, Delhi in the name of Danish Mohd. Khan. He further
deposed that the report in this regard is Ex. PW-222/A and the
application for the installation of the telephone is Ex. PW-
222/B.
272. PW-223 is Sh. L.R. Singh, S.D.E. (fault repair Section)
Minto Road. He deposed that telephone number 3216912 is
installed at house no. 2228, Ahata Hajjan-B, Road Gran, Delhi
in the name of Mohd. Ahmad and the orders of installation in
this regard are Ex. PW-223/A.
273. PW-224 is Sh. D.K. Malviya, Commercial Officer, Mayur
FIR No. 688/00, PS Kotwali
: 152 :
Vihar-II, Phase-II. He deposed that telephone no. 2720223 is
installed at house No. 308-A, DDA Flats, Gazhipur Dairy
Farm, Delhi in the name of Farzana Farooqui and the details of
this telephone number was given to the police vide Ex. PW-
224/A and the record of the telephone are Ex. PW-224/B-1 to
B-3.
274. PW-225 is Sh. Mohd. Ahmad. He deposed that accused
Sadakat Ali is known to him, being resident of 2277-78, Road
Gran, Lal Quan, Delhi and is a builder by profession. He is
also having a house in Okhla. He also deposed that his friend
had informed him about his helping the terrorist in escaping to
Sri Nagar on receipt of money and in this regard, he had made
a complaint to the police vide Ex. PW-57/A. He identified
accused Babbar Mohsin and Ashfaq as the person who used to
visit the house of Sadakat Ali and they are known to him only
by face and not by name.
275. PW-226 is SI Ranvir Singh. On 08.01.2001, he joined the
investigation of the case with PW-10 ASI Chand Singh and as
such has corroborated his version. On 24.01.2001, he collected
the case property from the Malkhana of PS Kotwali and
FIR No. 688/00, PS Kotwali
: 153 :
deposited the same in CFSL in intact condition. On
31.01.2001, he joined the investigation of the case with PW-9
Sh. P.R. Sharma and PW-64 Sh. O.P. Singh, both Managers,
SBI, Gazhi Pur Branch, Delhi and as such has corroborated
their version. On 13.04.2001, accused Matloob Alam was
interrogated in his presence and his disclosure statement Ex.
PW-226/A was recorded. Similarly, on 18.4.2001, accused
Mool Chand Sharma was interrogated and arrested in this case
and his search memo, arrest memo and information memo were
prepared vide Exs. PW-226/B to D. On 21.04.2001, he also
joined the investigation and has corroborated the version of
PW-66 Sh. Hazari Lal and PW-174 Sh. Kushal Kumar. On
7.6.2001, he again joined the investigation of this case
regarding seizure of the stamps of circle-6 and has corroborated
the version of PW-191 Smt. Sunita. He has also corroborated
the version of PW-203 Sh. Babu Ram Joshi and PW-184 Sh.
Ibadur Rehman. On 14.02.2001, he also seized the register of
Fair Price Shop of Matloob Alam vide Ex. PW-227/Z-4 and the
register is Ex. PW-226/1. He also seized the ration card Ex.
PW-178/B of Nasim Khan on 20.02.2001 vide Ex. PW-178/A.
FIR No. 688/00, PS Kotwali
: 154 :
He also seized the register of Fair Price Shop of Babu Lal
Aggarwal vide memo Ex. PW-227/Z-5 and the register is Ex.
PW-226/2. On 13.04.2001, he also collected the specimen
handwriting of accused Matloob Alam running into eleven
pages Ex. PW-227/C11, PW-205/C-1 to 9 and PW-206/C10 in
the present of Ins. S.K. Sund and SI Amardeep Sehgal. He has
also corroborated the version of PW-204 Sh. Rajesh Batra
regarding seizure of licence of Fair Price Shop No. 8993 M/s
Raj Store of Kushal Kumar. On 9.5.2001, he arrested accused
Matloob in FIR NO. 65/01, PS New Friends Colony and his
applications are Exs. PW-226/E and F. He has also
corroborated the version of PW-7 Sh. S.R. Raghav regarding
examination of eight ration cards and the report of Sh. S.R.
Raghav. He also deposited the documents in FSL for
examination, collected sample of stamp affixed on ration cards
and as such corroborated the version of PW-191 Smt. Sunita,
PW-164 Ms. Anju Goel and PW-165 Sh. Dharambir Sharma.
He deposited the entire documents with the FSL and collected
the report Ex. PW-216/A and concluded the investigation.
276. PW-227 is SI Amardeep Sehgal. On 26.12.2000 He joined
FIR No. 688/00, PS Kotwali
: 155 :
the investigation of the case with Ins. Hawa Singh, SI Satyajit
Sareen and other staff as such he has corroborated the version
of PW-218 SI Satyajit Sareen. He also deposed that a site plan
Ex. PW-227/A of the place of recovery at the back of the Red
Fort was also prepared. He has correctly identified all the case
property. On 30.12.2000, disclosure statement Ex. PW-28/A of
Md. Arif @ Ashfaq was recorded in his presence. He also
corroborated the version of PW-28 SI Abhinender Jain
regarding visit to Star Motor Driving College and to Red Fort
along with accused Md. Arif @ Ashfaq and taking of
specimen signatures of accused Babbar Mohsin Ex. PW-28/N-1
to 3. His signatures were also taken on two separate papers Ex.
PW-227/B and C. On 04.01.2001, accused Shahanshah Alam,
Devender Kumar and Babbar Mohsin were arrested and their
arrest memos were prepared vide Exs. PW-227/D to F and their
personal memos were prepared vide Exs. PW-227/G to I.
Thereafter, he has corroborated the version of PW-28 SI
Abhinender Jain. He further deposed that on 06.01.2001,
articles recovered from the house of accused Rehmana Yusuf
Farukhi were seized after they were got examined by PW-86
FIR No. 688/00, PS Kotwali
: 156 :
Ins. Pratap Singh. He has identified these articles as photo-
album Ex. PW-227/1, Judo-book Ex. PW-227/2, six books of
Urdu Ex. PW-227/3 to 8, Indian Map (plastic) Ex. PW-227/9,
four warranty cards of LG Ex. PW-227/10 to 13, one black
colour leather purse Ex. PW-227/14 and one rexine bag Ex.
PW-227/15 and all these articles were seized vide Ex. PW-
227/J. These were the same articles which were recovered by
Ins. Ved Parkash from the house of accused Rehmana Yusuf
Farukhi. He had also corroborated the version of PW-36
Mohd. Khalid regarding seizure of invoices and bills of
computers installed at Knowledge Plus Computer Centre. He
has also identified these computers and its parts as CPUs Ex.
PW-227/16 & 17, five monitors Exs. PW-227/18 to 22, four
UPS Exs. PW-227/23 to 26, one printer Ex. PW-227/27, five
key-boards Ex. PW-227/28 to 32, four speakers Ex. PW-227/33
to 36, one modum Ex. PW-227/37, one Hub Ex. PW-227/38,
one CD-Rom Ex. PW-227/39, five mouses Ex. PW-227/40 to
44, six spiral bands Exs. PW-227/45 to 50, five mouse pads Ex.
PW-227/51 to 55, two markers Ex. PW-227/56 & 57 and seven
computers books Ex. PW-227/58 to 64 and these were seized
FIR No. 688/00, PS Kotwali
: 157 :
vide memo Ex. PW-227/A.
FIR No. 688/00, PS Kotwali
: 158 :
On 06.01.2001, itself specimen handwriting of accused
Mool Chand Sharma, Babbar Mohsin, Shahashah Alam and
Devender were taken on four pages, two pages and one page
each respectively by Ins. Hawa Singh and the specimen
handwriting of Devender Singh is Ex. PW-227/L, of
Shahanshah Alam is Ex. PW-227/M, of Babbar Mohsin is Ex.
PW-227/N & O and of Mool Chand Sharma is Exs. PW-227/P
to S. On 07.01.2001, accused Rajiv Malhotra was arrested and
his disclosure statement was recorded vide Ex. PW-227/B.
Specimen handwriting of accused Md. Arif @ Ashfaq in Urdu
language was also taken by Ins. S.K. Sund on three pages in his
presence vide Ex. PW-28/O-1 to O-3. On 08.01.2001, fourteen
cassettes recovered from the house of accused Rehmana Yusuf
Faruki were also seized by Ins. Hawa Singh after these were
examined by Ins. Pratap Singh and these cassettes are Ex. PW-
227/U1 to U14. He also accompanied PW-214 SI Sunder to Sri
Nagar, where pointing out memos of the houses of accused
Nazir Ahmad Quasid and Farukh Ahmad Qasid and that of
accused Jahoor Ahmad Quasid (Since P.O.) were prepared
vide Exs. PW-227/V & W at the instance of accused Md. Arif.
FIR No. 688/00, PS Kotwali
: 159 :
Thereafter, he has corroborated the version PW-5 Sh. Pradeep
Kumar Srivastava, PW-8 Ins. Jogender Singh, PW-12 HC
Surender Singh, PW-17 Sh. Mahesh Kumar Trivedi, PW-45 SI
Himmat Ram and PW-97 Sh. B.A. Wani, PW-161 SI Hans
Raj, PW-169 SI Sunil Kumar and PW-218 SI Satyajit Sreen.
He also proved certificate of lodging of accused Nazir Ahamd
Quasid and Farukh Ahmad Quasid in jail vide Ex. PW-227/X
and permission granted by Principal Secretary (Home) J.& K.
vide Ex. PW-227/Y. He has also corroborated the version of
PW-226 SI Ranbir Singh, PW-205 Sh. Ami Lal Daksh and
PW-191 Ms. Sunita. On 16.06.2001, he along with Ins. S.K.
Sund obtained specimen handwriting of accused Mool Chand
Sharma on three pages vide Ex. PW-227/Z-1 to Z-3 after
obtaining court permission. He also deposited the specimen
handwriting as well as specimen impression of rubber stamp
with the CFSL. Register of the shop of Matloob Alam was
seized vide Ex. PW-227/Z-4 and that of Babu Lal was seized
vide Ex. Pw-227/Z-5. He also collected the documents from
Sri Nagar mark 227/D-1 to D-13.
277. PW-228 is ACP Hawa Singh. After the shooting incident
FIR No. 688/00, PS Kotwali
: 160 :
took place in Red Fort on 22.12.2000, the investigation of the
case was transferred from local police to the operation cell and
Ins. Hawa Singh (now ACP) partly investigated the case along
with PW-28 SI Abhinendra Jain, PW-218 SI Satyajit Sareen
and PW-227 SI Amardeep Sehgal as such he has corroborated
the version of these witnesses on all material particulars
regarding the investigation, collection of documents and
exhibits and arrest of the accused. He has also proved his
application Ex. PW-228/A moved before the Chief Manager,
SBI Gazhipur, for stopping the transactions in the account of
accused Rehmana Yusuf Farukhi. He has also corroborated
the version PW-97 Sh. B.A. Wani and PW-168 Ins. R.S.
Bhasin.
278. PW-229 is Ins. Mohan Chand Sharma. On 22.12.2000, he
was posted at Special Cell, Lodhi Colony. As per the
instructions of the senior officers, he also reached Red Fort.
Mobile telephone no. 9811278510, which was found written on
a chit near the rear wall of the Red Fort was handed over to me
for investigation. He verified the call details of this number.
During investigation, he came to know that this mobile number
FIR No. 688/00, PS Kotwali
: 161 :
is a cash card and also came to know that it was used on two
different sets with IMEI Nos. 445179440940240 and
449173405451240. Thereafter, he has narrated the calls made
from this number.
He further deposed on 22.12.2000 at 21.27.30, 21.33.14
and 21.33.43 hours, three calls were made to BBC from this
number. During scanning the aforesaid two IMEI numbers, he
came to know that another mobile number 9811242154 was
also used on the said instrument. He also deposed that mobile
number 9811242154 was being used for making and receiving
calls from Zakir Nagar to Gazhi Pur and vice versa. He further
deposed that location (cell ID) of this telephone number was at
Zakir Nagar, when calls were made to Gazhi Pur and when
calls were made to Zakir Nagar, its location (cell ID) was at
Gazhipur. Details of the calls were received from Hutch and
Airtel at the Lodhi Road Computer of the special cell. The call
details of this number is Ex. PW-229/A. The data pertains to
22.07.2000 to 29.11.2000. He further deposed that telephone
no. 9811278510 was also used on the date of the commission
of crime at Red Fort and calls were made to BBC offices, at Sri
FIR No. 688/00, PS Kotwali
: 162 :
Nagar and Delhi. One most used landline number was
2720223 which stands in the name of Farzana Faruki at Flat no.
308-A, DDA Flats, Gazhipur, Delhi. Other use telephone
number is 6315905, which is installed at “Knowledge Plus
Computer Centre”, at 18-C, Gaffur Nagar, Okhla. This was
the only number except PCO from which calls were made to
telephone no. 9811278510 on 14.12.2000 at 12.54.35 hours.
He further deposed that after getting the two telephone
numbers of Farzana Faruki and “Knowledge Plus Computer
Centre”, the investigation was confined to these two points and
secret surveillance was maintained. Knowledge Plus
Computer Center remained closed for two days after the
incident at Red Fort. He came to know that it belonged to one
Md. Arif @ Ashfaq residing at Gazhipur. On 25.12.2000, the
surveillance was maintained at the aforesaid two addresses to
trace Md. Arif @ Ashfaq and at about 9.40 pm, Md. Arif @
Ashfaq was sighted at Batla House. Thereafter a police team
was positioned at Flat no. 308-A, DDA Flats, Gazhipur. At
about 12.45 am, he came over there and was apprehended and a
9 mm pistol was recovered. A motorolla set of mobile no.
FIR No. 688/00, PS Kotwali
: 163 :
9811278510 with IMEI no. 449173405451240 also was
recovered from him. He identified the instrument as the same,
from which the calls were made as per Ex. PW-198/B-1 to B-3.
He further deposed that in three calls, calling number could not
be recorded as the calls were made from Pakistan to India and
during that period, clipping facility for identification of calling
line was not available between Delhi and Pakistan, but these
calls were received on telephone number 9811278510 at Jamia
Nagar, New Friends Colony, Kashmiri Gate and Chandni
Chowk. On 22.12.2000, a call was received at 14.32.16 hours,
when position of the mobile was at Darya Ganj. He further
deposed that on 22.12.2000, a call was made to BBC at
telephone no. 0194452918 and at that time the position of the
caller was at Chandni Chowk and the caller could be inside the
Red Fort. On 22.12.2000, at 21.25.25 hours a call was made to
BBC Office at Delhi 0113355751 and the position of the caller
was at the back of the Red Fort. At 21.27.30 hours, a call was
made from this telephone number to telephone number no.
0194452918 at BBC Sri Nagar and at that time also, the
position of the caller was at the back of the Red Fort. At
FIR No. 688/00, PS Kotwali
: 164 :
23.47.59 hours, the position of the caller was at Jamia Nagar as
some calls were received at this telephone number. He further
deposed that after apprehension of accused Md. Arif, he
disclosed that his associate Abu Shamal @ Fazal was staying at
his hideout at house no. G-73, first floor, Batla House, Delhi,
who was a trained militant of Lashkar-e-Toiba and was a
member of suicide squad. Police team reached there along
with accused Md. Arif @ Ashfaq in the intervening night of
25/26.12.2000 and a person was sighted entering the aforesaid
house and he bolted the door from inside. Members of the
police party knocked at the door, but the door was not opened
and the firing started from inside the house. Police also
returned the fire and firing continued from both side for about
20 minutes and after firing stopped, one person was found
lying injured with one AK-56 rifle, one magazine with thirty
live cartridges and two hand-grenades and he expired shortly
thereafter. Accused Md. Arif @ Ashfaq identified him as Abu
Shamal @ Fasal. One bandoleer was also recovered.
Thereafter, a rukka Ex. PW-229/B was prepared and FIR no.
630/00 was registered at PS New Friends Colony. Fired
FIR No. 688/00, PS Kotwali
: 165 :
cartridge cases by the trained militant as well as the police
were also recovered from the spot. A photograph of the
militant is mark as PW-229/B. Thereafter, he has identified the
case property including rifle, magazine, bandoleer, cleaning
thread of the rifle, a khaki uniform was recovered from the
hideout and various other articles as exhibit as PW-229/1 to 18.
He also proved the documents prepared in the case Ex. PW-
229/E to I. Abu Bilal, another associate of accused Md. Arif
@ Ashfaq was also staying in the same house, was declared
proclaimed offender and he had been killed in an encounter at
Humayun Tomb, Delhi.
279. PW-230 is Ins. Surender Kumar Sund. He investigated the
case after it was transferred to him from Ins. Hawa Singh,
though he remained associated with the investigation w.e.f.
02.01.2001 when he was given the task of verifying the ration
card no. 252754, Ex. PW-174/A of accused Ashfaq Ahmad s/o
Akram Khan, r/o 17/12, Batla House, Okhla. He went to the
office of Food & Supply, Okhla, Circle and has corroborated
the version of PW-7 Sh. S.R. Raghav regarding the ration card
being found forged as it was not issued from the office of
FIR No. 688/00, PS Kotwali
: 166 :
circle-6, Food & Supply Deptt. Thereafter, he was given the
task of investigation regarding accused Babbar Mohsin, which
he did with PW-10 ASI Chand Singh and PW-28 SI
Abhinendra Jain, as such has corroborated their version. He
has also corroborated the version of SI Sunder Lal and SI
Amardeep Sehgal about their visit Sri Nagar along with
accused Md. Arif. He also obtained all the papers of the case
from Ins. Hawa Singh, when the case was transferred to him on
08.01.2001. He has also corroborated the version of PW-74
Md. Idriz regarding investigation about Sher Jaman Afgani,
Hawala operator. (perhaps P.O.) On 13.01.2001, he obtained
specimen handwriting of Md. Arif @ Ashfaq vide Ex. PW-
230/A1 to A3 and 230/B-1 to B-15. He has also corroborated
the version of PW-83 Sh. R.K. Ajmani regarding hawala
transactions by accused Md. Arif. He also visited the address
of 102, Kela Bhatta, Ghaziabad, where ration card Ex. PW-
13/E was issued in the name of Md. Arif, which was also found
to be fake and in this regard, he has corroborated the version of
PW-2 Sh. Yash Pal Rana and PW-3 Sh. Rajbir Singh. He also
verified the driving license and learning licence of accused Md.
FIR No. 688/00, PS Kotwali
: 167 :
Arif @ Ashfaq and in this regard, he has corroborated the
version of PW-13 Ins. Rajender Singh and has proved his
report Ex. PW-230/C. He also got the arms and ammunitions
sent to CFSL. He has also corroborated the version of PW-9
Sh. P.R. Sharma about the account of accused Rehmana Yusuf
Farukhi and also got its operation stayed vide Ex. PW-230/D
and E. He also obtained the specimen signature of accused
Devender and Sh. Dharamvir Sharma, FSO vide exhibits PW-
12/A to C and Ex. PW-165/A to D. He also obtained ten ration
card blanks through SI Sunil Kumar vide Ex. PW-233/A and
sent Exs. PW-230/E and F to CFSL for comparison.
During investigation, he came to know that thirty-
two more bogus ration cards of the same series as that of Md.
Ashfaq were prepared and on this, he prepared a rukka Ex.
PW-230/G and got FIR NO. 65/01 in PS New Friends Colony,
and investigation of the same was handed over to SI Ranvir
Singh. He has also corroborated the version of PW-13 Ins.
Rajender Singh, PW-17 Mahesh Kumar Trivedi, PW-210
Sushil Malhotra. He also obtained specimen handwriting of
Rehmana Yusuf Farukhi vide Ex. PW-230/J and has
FIR No. 688/00, PS Kotwali
: 168 :
corroborated the version of PW-8 Ins. Jogender Singh. He has
also collected the call details from ESSAR mobile telephone
company through SI Satyajeet Sreen vide his application Ex.
PW-230/K and has corroborated the version of PW-198 Sh.
Rajiv Pandit. He also proved the photographs of Akash Deep
Motor driving college which are Ex. PW-230/L-1 to 3 and its
negative are Ex. PW-230/M-1 to M-3. Thereafter, he has
corroborated the version of PW-169 SI Sunil Kumar, PW-226
SI Ranvir Singh and PW-227 SI Amardeep Sehgal. He also
collected call details of mobile telephone number 9810263721,
which was got recorded by Md. Arif @ Ashfaq on the cash
receipt at the time of his admission for learning driving in
Seven Star Motor Driving college. In this regard, he has
corroborated the version of PW-195 Sh. Rakesh Bakshi. He
deposed that accused Md. Arif @ Ashfaq was in telephonic
contact with hawala operators and accused Nazir Ahmad
Quasid and Farukh Ahmad Quasid. He has also corroborated
the version of PW-18 Sh. Braj Raj Kishan, PW-185 Col.
R.P.S. Bhaturia, PW-14 Sh. U.C. Jain and PW-222 Sh. H.G.
Sharma and PW-224 Sh. D.K. Malviya regarding the place of
FIR No. 688/00, PS Kotwali
: 169 :
installation of telephone numbers 3355751, 2720223, and
6315904 and proved his application vide Ex. PW-230/N. He
also seized the belonging of Md. Arif @ Ashfaq and in this
regard, he has corroborated the version of Ct. Yogender. He
has also proved a video cassettes Ex. PW-230/Q, which was
seized vide Ex. PW-230/P, whereby responsibility for the Red
Fort Shootout incident was claimed by Lashkar-e-Toiba. He
has also corroborated the version of PW-150 Sh. Satish Jacab
regarding phone call made to BBC on the date of the incident.
He also proved photocopy of DD entry no. 12, dated
03.03.2001 Ex. PW-230/R. He has also collected the CFSL
report, destruction report of the hand-grenades, and six PCR
forms and also got the place of recovery photographed. He
also proved the photograph of one Abu Bilal Ex. PW-230/S.
Thereafter he has given the call details made by the accused to
each other. His application for collecting the call details from
Bharti Cellular Services Ex. PW-230/T. He also collected
results about the examination of documents from CFSL.
Accused Matloob was arrested by him on 13.04.2001 and his
personal search memo, body inspection memo and arrest memo
FIR No. 688/00, PS Kotwali
: 170 :
are Exs. PW-230/U-1 to U-3 and his disclosure statement is Ex.
PW-226/A. Accused Mool Chand Sharma was arrested by him
on 18.04.2001. Thereafter, he has also corroborated the
version of earlier witnesses regarding collections of call details
of other accused and seizure of Motorolla mobile phone in FIR
NO. 688/00, PS Kotwali, examination of witnesses of Food &
Supply Office, Circle-6 and taking specimen of the seal of the
office of Circle-6, Food & Supply, Okhla. He also gave
direction for keeping the record of the office in safe custody
vide application Ex. 230/U-4. He also received sanction u/s
197 Cr.P.C against accused Mool Chand Sharma vide Ex. PW-
199/A and also obtained his specimen signatures vide Ex. PW-
227/Z-1 to Z-3. He also deposed that he also obtained
sanction against other accused including accused, who are now
P.O. He also deposed that during investigation, he came to
know that accused Md. Arif @ Ashfaq never resided at house
no. A-18, Gaffur Nagar, which was the address got recorded by
him at the time of taking admission in Seven Star Motor
Driving College. He also found that address B-17, Jung Pura,
which was given by accused Ashfaq in the Sarai Kale Khan
FIR No. 688/00, PS Kotwali
: 171 :
Authority was also not correct as he never resided there. He
also collected the empty cartridges fired by Quick Reaction
Team of the Army at the time of the incident and sent the same
to CFSL. He has also collected report in this regard. He also
collected the record about the arrival and departure of accused
Attruddin (P.O.) from FRRO. He also collected the different
photographs and placed on record. He also placed the copy of
notification Ex. PW-230/U-6, whereby owner of a house is
duty-bound to intimate the police about the tenants staying at
his house and obtained necessary complaint against Sadakat Ali
for renting out his house to a foreigner Md. Arif @ Ashfaq
without intimation of the police. He also deposed that accused
Abu Shamal, who was killed vide FIR no. 630/00, PS New
Friends Colony in an encounter at G-73, Muradi Road, Okhla,
Abu Suffian who was killed in the area of Police Station
Shergarhli, Sri Nagar, vide FIR No. 240/00 and accused Abu
Bilal who was killed in an encounter with special cell Delhi
Police vide FIR no. 9/00, PS Special Cell, were involved in the
incident at Red Fort. He also deposed that weapons recovered
from Vijaya Ghat and from the back of the Red Fort and from
FIR No. 688/00, PS Kotwali
: 172 :
the hideout of Abu Shamal were of the same kind. He also
proved report Ex. PW-230/U-7 of the Jail Superintendent, Kot
Balwal, according to which accused Farukh Ahmad Quasid and
Nazir Ahmad Quasid are militants of Lashkar-e-Toiba. He also
placed on record a copy of the judgment Ex. PW-230/U-8 of
Competent Authority of FEMA, whereby accused Md. Arif @
Ashfaq has been held guilty for hawala transactions. He also
deposed that there were orders by the officers of Delhi Police
for the apprehension of militants belonging to Lashkar-e-
Toiba. He also deposed that diary recovered from the
residence of accused Rehmana Yusuf Farukhi contained the
names of other accused persons. He recorded the statements
of witnesses and completed the investigation.
280. PW-231 is Ins. Farooq Ahmad of Jammu & Kashmir Police.
He proved the postmortem report of one Niazuddin Qureshi in
FIR no. 342/00, PS Sher Garhi, Batmalloo, J.&K. U/s 307 RPC
read with 27 Arms Act. He also placed on record a photocopy
of the FIR Ex. PW-227/D-5 and its English Version mark PW-
231/1, both attested by him.
281. PW-232 is Sh. Rashid Ali. He deposed that in 1998 he was a
FIR No. 688/00, PS Kotwali
: 173 :
student of Jamia Milia Isalimia University in B.A. II nd year
and used to reside as tenant at the house of one Nain Singh,
where accused Md. Arif @ Ashfaq was also one of the tenants.
Md. Arif @ Ashfaq was having a mobile phone with him. He
had nodding acquaintance with Md. Arif @ Ashfaq and on
08.12.2000, Md. Arif @ Ashfaq invited him to a Roza Iftikhar
Party, where he was married to a lady, whose face he could not
see.
282. PW-233 is Md. Sadique, record clerk, Food & Supply
Department, Delhi. He deposed that on 05.02.2001, ten blank
ration cards bearing no. 403201 to 403210 were handed over to
SI Sunil Kumar vide entry Ex. PW-233/A.
283. PW-234 is Ins. Roop Lal. On 22.12.2000, he was posted as
Addl. SHO, PS Kotwali and was officiating as SHO. At about
9.25 pm, he was on patrolling, when he received a wireless
message that firing was going on inside Red Fort.
Immediately, he went inside Red Fort and found PW-137 SI
Rajender Singh along with one constable present there. PW-
189 Capt. S.P. Patwardhan was also present on the spot. As
such, he has corroborated their version in all material
FIR No. 688/00, PS Kotwali
: 174 :
particulars including the description of the scene of crime,
lifting and seizure of the exhibits and the registration of the
case. He has also corroborated the version of PW-62 SI Ram
Chander, PW-128 Havildar Mahesh Chand, PW-114 Naib
Subedar Dharm Chand, PW-115 Subedar Ashok Kumar PW-
122 Naik Suresh, PW-123 Havildar Bhupendra Singh, PW-124
Havildar Sri Ram, PW-183 SI Sanjay Kumar and other
witnesses regarding lifting of exhibits, their seizure, removal of
the injured and the dead to the hospital, conduct of inquest and
postmortem on the dead bodies and handing over the dead
bodies to the Army authorities. He also proved site plan Ex.
PW-234/A, request letters for conducting postmortem on the
dead bodies of Abdullah Thakur, Uma Shankar and Ashok
Kumar, brief facts and forms 25 Exs. PW-234/B to K. He also
deposed that Capt. S.P. Patwardhan had produced before him
three Magazines, out of which two magazines were tied with
each other in reverse condition. Capt. S.P. Patwardhan had
produced before him 40 fired cartridge cases which were
collected from different spots. He also assisted the draftsman
in preparing scaled site plan. He has identified the entire case
FIR No. 688/00, PS Kotwali
: 175 :
property. He also deposed that he had summoned crime team,
photographer, Bomb disposal squad and CFSL team to the
spot.
284. PW-235 is SI Tripti. She deposed that on 05.02.2001, she
was working as duty officer at PS New Friends Colony from
8.00 am to 4.00 pm. On that day, she received a rukka Ex.
PW-230/G through SI Abhinendra Jain and sent by Ins.
Surender Kumar Sund, on which she formally registered FIR
No. 65/01, carbon copy of which is Ex. PW-235/A. After
registration of the case, investigation was assigned to SI Ranvir
Singh of special cell. She also recorded DD no. 9-A Ex. PW-
235/B in this regard.
(D) PROSECUTION EVIDENCE CLOSED
285. Thereafter, prosecution evidence was closed by learned
Special Public Prosecutor.
(E) STATEMENTS OF ACCUSED
286. Statements of all accused have been recorded u/s 313 Cr.P.C
in detail, wherein each of them denied the allegations of the
prosecution as incorrect and false alleging that he is innocent
and has been falsely implicated in this case. Each of the
FIR No. 688/00, PS Kotwali
: 176 :
accused claimed that nothing was recovered from him and he
has been falsely implicated in this case. None of the accused
except accused Rehmana Yusuf Farukhi, has examined any
witness in his defence. Accused Rehmana Yusuf Farukhi has
examined only one witness in her defence.
(F) DEFENCE EVIDENCE :
287. DW-1 is Mrs. Quamar Farukhi. She is the mother of
accused Rehmana Yusuf Farukhi. She deposed that on the last
Friday of Ramzan, police entered her house by jumping the
boundary wall. At that time, Rehmana Yusuf Farukhi, Ashfaq,
his son Hilal Farukhi, one Rabia and she herself were present at
the house. She deposed that Arif never disclosed that he was a
Pakistani. He informed that he was a resident of Jammu.
Since, there was no demand from the side of Md. Arif, she did
not make any preparation of the marriage. She had saved the
money for the marriage of her daughter and her relatives had
also contributed and the money was deposited in bank by
Rehmana. She also deposed that police had tortured them
mentally and physically.
(G) POINTS FOR DETERMINATION :
FIR No. 688/00, PS Kotwali
: 177 :
288. In this case, following points arise for determination :-
(i) Whether there was conspiracy to wage war
against the Government of India ?
(ii) Whether there were further conspiracies to forge
driving licence and ration card of Md. Arif @ Ashfaq
to give him Indian identity and to harbour him and
conceal his designs ?
(iii) Whether the conspiracy to wage war against the
Government of India was hatched by Lashkar-e-
Toiba and if so, which of the accused were party to
it?
(iv) Whether there was conspiracy to kill all those
who resist the action of the accused in waging war
against the Government of India ?
(v) If so, who were the members of these
conspiracies ?
(vi) Whether accused Md. Arif @ Ashfaq along with
his co-accused Abu Bilal, Abu Saad, Abu Haider,
Abu Shakur and Abu Shamal committed the murder
of three Army personnels Uma Shankar, Abdullah
Thakur and Ashok Kumar posted with 7th Raj Rifles
at Red Fort on 22.12.2000 at about 9.00 PM in
pursuance to the aforesaid conspiracies ?
(vii) Whether the accused forged driving licence and
ration card of Md. Arif @ Ashfaq in pursuance to the
conspiracy to give Indian identity to a Pak national
FIR No. 688/00, PS Kotwali
: 178 :
and to help him in setting up his base in Delhi by
harbouring him and concealing his designs ?
(H) FINAL ARGUMENTS :
289. I have heard the arguments at the bar in extenso and have
carefully perused the record.
290. It is submitted by Sh. Bakshish Singh, Learned Special
Public Prosecutor that accused Md. Arif @ Ashfaq @ Abu
Hamad along with other Pak nationals entered India in 1999 at
the instance of Lashkar-e-Toiba and stayed in the house of
Nazir Ahmad Quasid and Farukh Ahmad Quasid at Sri Nagar.
There, he along with these two accused as well as his associates
Abu Bilal, Abu Haider, Abu Saad, Abu Shakur, Abu Shamal
and Abu Suffian entered into a conspiracy to commit terrorist
attacks in India, particularly targeting the Army camps. They
collected arms and ammunitions. In January-February 2000,
Md. Arif @ Ashfaq and Abu Haider came to Delhi and stayed
at the house of accused Babar Mohsin, who drove him (Md.
Arif) on his motor-cycle No. DL-2SK-2816 around the city of
Delhi and showed him important places and buildings in Delhi
and also took a room on rent in the house of Nain Singh.
FIR No. 688/00, PS Kotwali
: 179 :
Thereafter, Md. Arif @ Ashfaq left for Sri Nagar and wrote a
letter of thanks to accused Babar Mohsin. In July-August
2000, Md. Arif @ Ashfaq again came to Delhi and after
vacating the house of Nain Singh, he took house No. 18-C,
Gaffur Nagar, Okhla, Delhi, on rent from accused Sadakat Ali
on a monthly rent of Rs. 4,500/- and opened a computer center
there under the name and style of “Knowledge Plus Computer
Center”, in partnership with Faisal Mohd. Khan. Accused
Sadakat Ali also became party to the conspiracy with him.
There he got installed telephone number 26315904 in the name
of one Danish Mohd. Khan, friend of Faisal Mohd. Khan.
There, he established a base of Lashkar-e-Toiba. In December
2000, he also took on rent house No. G-73, Muradi Road, Delhi
from one Gian Chand Goel. At both the places, he established
bases for Lashkar-e-Toiba. In October-November 2000, he
contacted Rehmana Yusuf Farukhi resident of 308-A, DDA
Flats, Gazhipur, Delhi, in response to her matrimonial
advertisement. He offered to marry her despite she being
much older in age and suffering from spondylitis. He
persuaded her to join the conspiracy for attacking important
FIR No. 688/00, PS Kotwali
: 180 :
places including Army Camp in India. He also paid her Rs.
2,80,000/- which she deposited in her bank account.
Thereafter, she provided him shelter and other assistance.
291. It is also argued that accused Md. Arif @ Ashfaq obtained
training at Seven Star Motor Driving college, Sarai Jullena,
Delhi where accused Devender Singh was manager. He gave
him motor driving training knowing that he was a Pakistan
national and had come to India for committing terrorist acts and
he also joined the conspiracy. Accused Devender Singh
collected Rs. 2000/-, a slip of address and his photograph for
getting a driving licence prepared and passed on Rs. 900/-
along with slip of address and photograph to accused Rajiv
Malhotra, who was running Star Motor Driving College at
Ghaziabad. Accused Rajiv Malhotra passed on Rs. 600/- and
slip of address and photograph to accused Shahanshah Alam,
who was an employee with Akash Deep Motor Driving college,
Ghaziabad for preparation of a driving licence. It is argued
that accused Shahanshah Alam procured a fake learning licence
and a fake ration card in the name of Md. Arif @ Ashfaq for
getting a driving licence prepared for him. All three accused
FIR No. 688/00, PS Kotwali
: 181 :
joined the conspiracy of killing any one who came in their way
of waging war against Govt. of India as well as to forge a
driving licence for Md. Arif @ Ashfaq to give him Indian
identity.
292. It is further argued that accused Md. Arif @ Ashfaq
thereafter, contacted accused Matloob Alam, who used to run a
fair price shop by the name of Matloob Store at Okhla for
getting a ration card prepared in his name. It is alleged that
accused Matloob Alam and accused Mool Chand Sharma, who
was Food Inspector of the area, entered into conspiracy to forge
a ration card and also joined Md. Arif @ Ashfaq in conspiracy
to kill anyone, who came in their way of waging war against
Govt. of India. Accordingly, a fake ration card was prepared
with the address of F-17/12, Batla House, Okhla, Delhi.
293. It is next argued that on the basis of these forged documents,
accused Md. Arif @ Ashfaq opened a bank account no.
0891000024344 in HDFC bank, New Friend Colony and
deposited around Rs. Six lacs in that account. In furtherance
of the conspiracy to wage war against the Govt. of India,
accused Md. Arif @ Ashfaq collected huge amount of Hawala
FIR No. 688/00, PS Kotwali
: 182 :
money from accused Sher Zaman and Sabir @ Sabarulla and
deposited around Rs. 29,50,000/- (Rs. Twenty-nine lacs & fifty
thousand only) in the accounts of Bilal Ahmad Qawa, Nazir
Sons and Farukh Ahmad Quasid, which amount was used to be
withdrawn by Nazir Ahmad Quasid and further distributed to
various militants for carrying out militant activities.
294. It is further submitted that on 07.12.2000, instructions were
received from Abu Bilal for attacking the Army camp inside
Red Fort. In furtherance of this conspiracy, Abu Bilal, Abu
Saad, Abu Suffian and Abu Shamal, all Pakistan nationals,
joined him (Md. Arif) and Abu Haider at Delhi. They had
brought AK-56 rifles, cartridges and hand-grenades with them
from Sri Nagar.
295. It is further argued that all six accused i.e. Abu Bilal, Abu
Haider, Abu Saad, Abu Shakur, Abu Shamal and Abu Hamad
@ Md. Arif @ Ashfaq carried out recce of Red Fort and
ultimately as per the instructions of Lashkar-e-Toiba, they
reached Red Fort on 22.12.2000 in the evening and watched
Light & Sound Program inside Red Fort. At that time, Abu
Saad and Abu Shamal were armed with AK-56 Rifle each and
FIR No. 688/00, PS Kotwali
: 183 :
hand-grenades. After watching the Light & Sound Program,
Abu Bilal, Abu Haider, Abu Shakur and Abu Hamad @ Md.
Arif @ Ashfaq came out of Red Fort directing Abu Saad and
Abu Shamal to attack the Army camp inside Red Fort. These
two militants Abu Saad and Abu Shamal entered the camp of
7th Raj Rifles inside Red Fort and fired indiscriminately upon
Army jawans and killed three army jawans namely Uma
Shankar, Ashok Kumar and Abdullah Thakur and escaped
from the rear side of the Red Fort, where their four associates
were already waiting.
296. It is further argued that accused Md. Arif @ Ashfaq made
telephonic call immediately to BBC, Sri Nagar and Delhi,
claiming that Lashkar-e-Toiba had attacked the Army camp
inside the Red Fort and killed two Army Jawans. It is further
submitted that a slip with telephone number 9811278510 was
recovered from the spot and on the basis of that accused Md.
Arif @ Ashfaq was arrested and a pistol was recovered from
him, on the basis of which FIR no. 419/00 was registered at
Police Station Kalyan puri. Consequent to his disclosure
statement, his hideout at G-73, Muradi Road, Okhla, Delhi was
FIR No. 688/00, PS Kotwali
: 184 :
raided, where accused Abu Shamal was killed in encounter and
one AK-56 rifle, one magazine with thirty cartridges, two
hand-grenades, one bandoleer, a military colour pouch, and one
khaki uniform were recovered and FIR no. 630/00 was
registered at Police Station New Friends Colony. Further,
arms and ammunition were also recovered from behind the Red
Fort consequent to his disclosure. Not only this, consequent to
his disclosure dated 01.01.2001, three hand-grenades were
recovered from the area of Staff Quarter, Jamia Milia
University and FIR no. 03/2001 was registered at Police
Station New Friends Colony.
297. It is next submitted that during the course of investigation of
the case, it was revealed that accused Matloob Alam was
getting fake ration cards prepared and as such FIR No. 65/01
was registered against him u/s 420/468/471/474 IPC in Police
Station New Friends Colony.
298. During the course of detailed arguments, he has read over the
relevant evidence at bar and has filed written arguments also.
He has submitted that in case of conspiracy, disclosure
statements of the accused made in the custody of police during
FIR No. 688/00, PS Kotwali
: 185 :
investigation can be relied upon. The reports of the handwriting
expert and ballistic expert have been extensively read over to
me during the course of arguments. My attention has also
been invited to the following authorities :-
1. State Vs. Mohd. Afzal & Ors. 2003 IV AD
(Cr.) 2005.
2. The Government of N.C.T of Delhi Vs. Jaspal Singh 2003 VI AD (S.C. ) 309
3. Devender Pal Singh Vs. State N.C.T. of Delhi & Anr. 2002 II AD (Cr.) S.C. 97
4. M ohammad Usman Mohammad Hussain Maniyar and Anr.Vs. State of Maharashtra AIR 1981 SC 1062
5. Kehar Singh and Ors Vs. State (Delhi Admn.)AIR 1988 SC 1883
6. Suresh Chandra Bahri Vs. State of Bihar 1994 AIR SCW 3420
7. State (Delhi Admn.) Vs. V.C. Shukla AIR 1980 SC 1382
8. State of Maharashtra Vs. Som Nath Thapa 1996 Cri.L.J. 2448 (S.C.)
9. Nazir Khan Vs. State of Delhi 2003 Cri. L.J. 5021
10. K. Hasim Vs. State of Tamil Nadu 2005 Cri.
FIR No. 688/00, PS Kotwali
: 186 :
L.J.143
11. Madan Singh Vs. State of Rajasthan AIR 1978 SC 1511
12. Anter Singh Vs. State of Rajasthan 2004 Cri. L.J. 1380
13. Prithviraj Vs. State of Rajasthan 2004 Cri. L.J. 2190
14. State of U.P. Vs. Ram Babu AIR 1980 SC 791
15. State (Delhi Admn.) Vs. Pali Ram AIR 1979 SC 14
16. Parsuram Pandey Vs. State of Bihar 2004 Cri. L.J. 4978 (SC)
17. Sucha Singh & Anr. Vs. State of Punjab 2003 Cri.L.J. 3876
18. State of U.P. Vs. Farid Khan 2004 Cri. L.J. 4970
19. Jai Shree Yadav Vs. State of U.P. 2004 Cri. L.J. 4826
20. Yakub Ismailbhai Patel Vs. State of Gujarat2004 Cri. L.J. 4205
299. On the other hand, it is submitted by Sh. R.M. Tufail,
learned defence counsel for accused Md. Arif @ Ashfaq that :-
(i) There is no eye-witness to the case and the circumstantial
FIR No. 688/00, PS Kotwali
: 187 :
evidence do not form a complete chain of events pointing
unmistakably to the guilt of the accused ;
(ii) The charges of conspiracy to wage war against the Govt. of
India and conspiracy to commit other offences cannot stand
together i.e. Charge u/s 121-A and 120-B cannot be framed
together ;
(iii) There are material contradictions regarding :-
(a) time of incident, (b) number of assailants,(c) the army man who was fired first and where,(d) retaliation by the army team, (e) direction of entry and exit of assailants,(f) information to the police,(g) searching of Red Fort for clues and the exhibits recoveredfrom there including the slip with telephone number, and(h) documents were brought to Delhi from Ghaziabad on30.12.2000.
(iv) The FIR and entries in the roznamcha have been forged to
give logical appearance to the prosecution story as police was
even not allowed to enter the Red Fort on the date of incident ;
(v) The articles alleged to be recovered from the scene of crime
were not recovered from the spot and were planted there ;
(vi) The mobile phone alleged to have been recovered from
accused Md. Arif @ Ashfaq was not recovered from him at all
FIR No. 688/00, PS Kotwali
: 188 :
and it was planted upon him ;
(vii) The pistol alleged to have been recovered at the time of
arrest of Md. Arif, AK-56 Rifle and hand-grenades alleged to
have been recovered from behind the Red Fort at his pointing
out were also planted ;
(viii) The recovery of hand-grenades from Jamia Milia
University at the instance of accused Md. Arif @ Ashfaq is
also false, as nothing was recovered from there ;
(ix) No incident as alleged by the prosecution took place at the
Red Fort and the incident was the result of a drunken brawl
amongst the jawans ;
(x) Members of police guard deployed at Mumtaj Mahal
Museum inside Red Fort were not cited as witness ;
(xi) There are contradictions between the testimony of material
witnesses ;
(xii) There was no conspiracy to launch terrorist attacks in
India ;
(xiii) The fact alleged by the prosecution do not constitute the
waging of war ;
FIR No. 688/00, PS Kotwali
: 189 :
(xiv) The sanction granted by the respective authorities are
void ab initio as the same were granted without application of
mind ;
(xv) Report of the handwriting expert on specimen signatures
of the accused taken during investigation is not admissible as
the specimen handwriting was taken without the permission of
the court ;
(xvi) The record of the telephone companies Airtel and Essar
are neither admissible nor reliable as the same do not comply
with the requirements of law ;
(xvii) The disclosure statements of the accused are of no use, if
no recovery is effected consequent thereto, even when there are
charges of conspiracy ;
(xviii) The ration card as well as the driving licence are
genuine one and as such no offence has been committed
regarding the procurement of these two documents ;
(xix) Accused Md. Arif @ Ashfaq was not having any mobile
phone and it has been planted by the police ;
(xx) Accused Md. Arif @ Ashfaq earned the money out of the
his business activities and money deposited by him in the bank
FIR No. 688/00, PS Kotwali
: 190 :
account was not Hawala money ;
(xxi) The joint trial of the eleven accused has caused prejudice
to them.
(xxii) Letter Ex. PW-10/C was got written by the police from
Md. Arif @ Ashfaq during his custody ; and,
(xxiii) Arrest and recoveries were effected with undue delay
and after torturing the accused and as such they do not inspire
confidence.
300. For accused Rehmana Yusuf Farukhi, it is submitted by Sh.
R.M. Tufail, learned defence counsel, that she is innocent and
has been falsely implicated in this case. In support of her
innocence, it is submitted that :
(i) Charges u/s 120-B IPC and 121/121-A IPC cannot stand
together ;
(ii) The sanction u/s 196 Cr.P.C., is not proper ;
(iii) She was arrested illegally and her personal search was not
conducted by a lady police officer ;
(iv) She was kept in illegal custody ;
(v) The amount deposited in her account was given to her by
relatives for the purpose of her marriage ;
FIR No. 688/00, PS Kotwali
: 191 :
(vi) No telephonic calls were received by her at her residence
from telephones number 9811278510 and 9811242154 alleged
to be belonging to Md. Arif @ Ashfaq and the call details have
been forged by the police as is clear from the Ex. PW-198/DA ;
(vii) Police officials forcibly entered the house of Rehmana
Yusuf Farukhi in the night and tortured her and her family
member ;
(viii) Nothing was recovered from her house and the
documents mentioned in Ex. PW-173/B were fabricated by the
police ;
(ix) The negative of Abu Bilal and Visa form of Pakistan were
also not recovered from her house ;
(x) Rehmana Yusuf Farukhi was fit for marriage and as such
she did not marry Md. Arif @ Ashfaq for any ulterior motive ;
and,
(xi) Rehmana Yusuf Farukhi was tortured in custody and as
such evidence collected is not admissible.
301. For accused Sadakat Ali, it is submitted by Sh. R.M. Tufail,
learned defence counsel that :
(i) There is no sanction for prosecution of Sadakat Ali u/s
FIR No. 688/00, PS Kotwali
: 192 :
121/121-A IPC ;
(ii) He has already been challaned and punished for not
informing the police for letting out his house vide FIR No.
13/2001, u/s 188 IPC, Police Station New Friends Colony, in
the court of Sh. Vinod Kumar, the then learned Metropolitan
Magistrate, Delhi ;
(iii) There is no evidence against the accused for implicating
him u/s 14 of the Foreigners' Act ;
(iv) There is no evidence that he was party to the conspiracy to
cause death of anyone ;
(v) The evidence of PW-225 Md. Ahmad is tainted and biased
on account of enmity between the two ;
(vi) Challan has been filed against him belatedly which shows
that there was no evidence against him : and,
(vii) Investigating Officer has created false evidence against
him to implicate him in this case.
302.My attention has been invited to the following authorities :-
1. State of Maharashtra Vs. Ahmed Gulam NabiShaikh & Ors. 1997 Cri. L.J. 2377
2. Narendra Singh & Anr. Vs. State of M.P. 2004(2) JCC 832
FIR No. 688/00, PS Kotwali
: 193 :
3. Rakesh Aggarwal Vs. State (Delhi Admn.) 1995Cr. R. 826 (Delhi).
4. Rang Bahadur Singh & Ors. Vs. State of U.P.(2000) 3 SCC 454
5. Amarjeet Singh Vs. State of Punjab 1994 JCC129 (SC)
6. Sahib Singh Vs. State of Punjab 1997 SCC(Cri.) 315
7. Dharminder Pal Vs. State of Punjab 1997 SCC(Cri.) 670
8. Pradeep Narayan Madgaonkar etc. Vs. State ofMaharashtra 1995 Cr. R. 763 (SC)
9. Munni Lal Vs. The State 1995 JCC 110
10. Gaya Yadav & Ors. Vs. State of Bihar & Ors.(2003) 9 SCC 122
11. Meharaj Singh (L/Nk) Vs. State of U.P. 1994SCC (Cri.) 1390
12. Arjun Marik & Ors. Vs. State of Bihar 11(1994) CCR 445 (SC)
13. Dhannu Singh Vs. State of M.P. 1998 Cril. L.J.1732
14. Raj Kumar vs. State 1998 Cri. L.J. 424
15. Sukhvinder Singh & Ors. Vs. State of Punjab(1994) 5 SCC 152
FIR No. 688/00, PS Kotwali
: 194 :
16. Afsar Hussain Vs. N.C.T . of Delhi 72 (1998) DLT 261
17. M.C. Verghese Vs. T.J. Ponnam 1970 Cril L.J.1651 (Vol. 76)
18. Jaivir Singh Vs. State (Delhi Admn.) 1995Cr.R. 513 (Delhi)
19. Babu Das Vs. State of M.P. (2003) 9 SCC 86
20. Rakesh Kumar & Ors. Vs. State 2004 (72) DRJ311
21. State of Rajasthan Vs. J.P. Sharma 1983 Cri.L.J. 858
303. For accused Nazir Ahmad Quasid and Farukh Ahmad
Quasid, it is submitted by Sh. Aman Lekhi learned defence
counsel, that :-
(i) There is no evidence that accused waged war against the
Government of India ;
(ii) There is no evidence that they are members of Lashkar-e-
Toiba and are associated with Md. Arif @ Ashfaq and his
associates ;
(iii) The facts of the present case do not make out waging of
war against the Government of India ;
FIR No. 688/00, PS Kotwali
: 195 :
(iv) The sanction granted in the case is illegal as it was granted
without application of mind ;
(v) The charges of Section 120-B and 121/121-A cannot stand
together ;
(vi) There are no financing of militant activities by the two as
the accounts do not belong to them, nor the transactions have
been proved as per law ;
(vii) There is no evidence of accused being party to any
conspiracy ;
(viii) Disclosure statements of the co-accused before the police
are not admissible and cannot be used against co-accused with
the help of Section 30 of Evidence Act or any other provision
of law ;
(ix) Mere association does not prove conspiracy ;
(x) Specimen handwriting obtained of the accused in the course
of investigation cannot be used for comparison and report on
such handwriting is inadmissible ;
(xi) Wireless set recovered from the accused in Sri Nagar is not
admissible in evidence in this case ;
(xii) Accused Nazir Ahmad Quasid and Farukh Ahmad Quasid
FIR No. 688/00, PS Kotwali
: 196 :
were not in telephonic contact with accused Md. Arif @
Ashfaq and telephone record in this regard is inadmissible
under law ;
(xiii) The joint trial of the eleven accused has caused prejudice
to them.
304. My attention has been invited to the following authorities :-
(i) Gokulchand Dwarkadas Morarka V. The
Kind, J.C. 1948, Jan. 13, Vol. LXXV.]
(ii) M.K. Gopalan and another V. The State of
Madhya Pradesh, AIR 1954, S.C. 362 (Vol. 41
C.N. 88)
(iii) Dr. Dattatraya Narayan Samant and others
V. State of Maharashtra, 1982, CRI. L. J. 1025
(Bombay High Court)
(iv) Kehar Singh and Others Vs. State (Delhi
Administration) (1988) 3 Supreme Court Cases
609.
(v) State (Through Superintendent of Police,
CBI/SIT) Vs. Nalini and Others, (1999) 5
Supreme Court Cases 253.
(vi) Kala Singh and another Vs. Emperor, AIR
1933, Lahore 167.
(vii) Pulukuri Kottaya and other V. Emperor,
FIR No. 688/00, PS Kotwali
: 197 :
A.I.R. (34) 1947 Privy Council 67.
(viii) Firm Ahmad Din. Allah Ditta Vs. Sardar
Pratap Singh and others, A.I.R . 1939 Lahore 438.
(ix) Chandradhar Goswami and others V.
Gauhati Bank Ltd. AIR 1967, Supreme Court
1058 (V 54 C 221)
(x) Sukhvinder Singh and others Vs. State of
Punjab, (1994) 5 Supreme Court Cases 152.
(xi) Rakesh Kumar and others Vs. State, 2004 (72)
DRJ 311.
(xii) Manpreet Singh and another V. State, 2004
CRI. L.J. 530.
(xiii) Shiv Narayan & Anr. Vs. State (NCT of
Delhi) 2002 (61) DRJ 734 (DB)
(xiv) Faqira and others Vs. Emperor, A.I.R . 1929,
Lahore 665.
(xv) Puttu Vs. Emperor, A.I.R . (32) 1945 Oudh
235.
(xvi) Hazari Lal Vs. The State (Delhi Admn.) AIR
1980, Supreme Court 873.
(xvii) Mohd. Husain Umar Kochra Etc. Vs. K.S.
Dalipsinghji and Another etc., 1970, Supreme
Court Cases (Cr.) 99,
(xviii) In re Dani and others AIR 1936 Madras
317.
FIR No. 688/00, PS Kotwali
: 198 :
(xix) Balbir Vs. State of Haryana and Another,
(2000) 1 Supreme Court Cases 285.
305. On behalf of accused Babar Mohsin, it is submitted by Sh.
I.U. Khan, learned defence counsel that :-
(i) There is no legally admissible evidence connecting accused
Babar Mohsin with Md. Arif @ Ashfaq or Sadakat Ali ;
(ii) Letter Ex. PW-10/C alleged to have been written by Md.
Arif @ Ashfaq to Babar Mohsin for helping him in Delhi, was
got written by the police from accused Md. Arif @ Ashfaq
during his police custody ;
(iii) The letter was recovered belatedly as Md. Arif @ Ashfaq
was arrested on 26.12.2000 and Babar Mohsin was arrested on
04.01.2001, but the letter was recovered on 07.01.2001. As
such, the letter does not inspire confidence ;
(iv) There was no dickey attached to the motor-cycle and as
such the chances of the letter being found in the manner stated
by the police are very less ;
(v) No public person was joined as a witness at the time of
recovery of the letter ;
(vi) There are cuttings and overwriting in the seizure memo and
FIR No. 688/00, PS Kotwali
: 199 :
Babar Mohsin also did not sign the seizure memo ;
(vii) Accused Babar Mohsin does not know Urdu as such the
letter could not have been written to him in a language
unknown to him ;
(viii) The passerby from whom the letter was got read over,
has not been cited as a witness ;
(ix) The contents of letter are innocuous and does not contain
any incriminatory material ;
(x) There is no evidence that Babar Mohsin was part of any
conspiracy or actual incident inside the Red Fort ; and,
(xi) Evidence of PW-225 Md. Ahmad is extremely doubtful as
he has been cited as a witness at a very late stage and his
complaint to the Commissioner of Police is also of doubtful
integrity.
306. My Attention has also been invited to an authority reported
as Mukhtiar Ahmad Anshari Vs. State, 2005 II, AD (Cr.)
SC 441.
307. On behalf of accused Devender Singh, Shahanshah Alam
and Matloob, Sh. Anil Aggarwal, ld. Defence counsel has
submitted that :-
FIR No. 688/00, PS Kotwali
: 200 :
(i) Charges u/s 120-B and Section 121/121-A IPC cannot stand
together ;
(ii) The charges against the present accused are infact u/s
121/121-A IPC, but no sanction u/s 196 Cr.P.C., has been
obtained ;
(iii) They were not party to the conspiracy to cause murder of
anyone in the course of waging war against the Government of
India by accused Md. Arif @ Ashfaq and his associates ;
(iv) There is no evidence that accused Devender Singh
conspired with accused Md. Arif @ Ashfaq to get a forged
driving licence prepared for him ;
(v) There is no evidence that accused Devender Singh and
accused Rajiv Malhotra conspired together to forge a driving
licence for accused Md. Arif @ Ashfaq ;
(vi) There is no evidence that accused Devender Singh, Rajiv
Malhotra and Shahanshah Alam conspired further to obtain a
forged a driving licence for accused Md. Arif @ Ashfaq ;
(vii) There is no evidence that ration card with address 102,
Kela Bhatta, Ghaziabad and learning licence with address at B-
17, Jungpura, New Delhi, both in the name of Md. Arif @
FIR No. 688/00, PS Kotwali
: 201 :
Ashfaq were forged by Shahanshah Alam ;
(viii) Shahanshah Alam was not an employee of Akashdeep
Motor Driving College and he is an illiterate person ;
(ix) There is no evidence that these three accused were in
conspiracy with accused Mool Chand Sharma and Matloob
also to obtain a forged ration card for accused Md. Arif @
Ashfaq ;
(x) There is no evidence that accused Matloob Alam conspired
with Md. Arif @ Ashfaq for obtaining a forged ration card in
his favour ;
(xi) There is no evidence that accused Matloob Alam used to
get forged ration cards issued in favour of different persons of
the area ;
(xii) The reports of the handwriting expert Dr. M.A. Ali and
Sh. Ami Lal Daksh are motivated and have been given at the
instance of prosecution ;
(xiii) The evidence of PW-174 Sh. Kushal Pal is biased and
tainted as he himself was earlier placed in the list of accused by
the prosecution, but was subsequently not charge-sheeted.
(xiv) The driving licence and ration card were not used by the
FIR No. 688/00, PS Kotwali
: 202 :
accused anywhere and as such no offence has been committed
as forgery itself is no offence ;
(xv) Specimen handwriting of accused Matloob Alam,
Devender Singh and Rajiv Malhotra were taken during
investigation without the permission of the court and as such it
cannot be used as evidence ;
(xvi) The joint trial of the eleven accused has caused prejudice
to them ;
(xvii) In case, the handwriting of accused Matloob appears on
some ration cards, it is due to the fact that he used to fill up
these ration cards at the request of the office staff while visiting
the Food & Supply office of Circle-6, Okhla ;
(xviii) Prosecution has fabricated false evidence in order to
exonerate the staff of the Food & Supply Office, Circle-6,
Okhla and accused Matloob Alam did not tamper with the
register of the shop of Kushal Kumar ; and,
(xix) Evidence has been collected illegally.
308. My attention has been invited to the following authorities :-
1. Somabhai Shamalbhai Patel and Others vs State of
Gujarat, Crimes VII 1987(2) Page 644
2. Munna Lal vs State IV (1998) CCR 320
FIR No. 688/00, PS Kotwali
: 203 :
3. State of Tamil Nadu vs Nalini AIR 1999 Supreme
Court 2640
4. Sattan @Satyendra & Ors.etc. Vs State of U.P.
2001 Crl.L.J . 676
5. State of Kerala vs P.Sugathan & Anr. IV (2000)
CCR 71 (SC)
6. Firozuddin Basheeruddin & Ors vs State of Kerala
2001 Crl.L.J.4215
7. Shaikh Noor Mohamad Shaikh Fazal vs The State
of Maharashtra AIR 1981 SC 297
309. For accused Mool Chand Sharma, it is submitted by Sh. D.K.
Sharma, learned defence counsel that :-
(i) Accused Mool Chand Sharma was not the Food Inspector of
the area, when the ration card of Md. Arif @ Ashfaq was
prepared ;
(ii) Evidence of PW-174 Kushal Pal is tainted and biased as he
himself was an accused in the case ;
(iii) There is no evidence that he was in conspiracy with
accused Matloob and Md. Arif @ Ashfaq to get a forged ration
card in favour of accused Md. Arif @ Ashfaq ;
(iv) There is no evidence that he was in conspiracy with other
accused to commit the murder of anyone, who came in the way
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of accused Md. Arif @ Ashfaq and his associates for waging
war against the Government of India ; and,
(v) Official records have been suppressed and tampered with
by the officials of Food & Supply Officer, Circle-6, Okhla to
falsely implicate accused Mool Chand Sharma and to save
officials who were in fact guilty.
310. On behalf of accused Rajiv Malhotra, Sh. P.R. Aggarwal,
learned defence counsel submitted as under :-
(i) That the only allegation against the accused is that he took
Rs. 900/- along with a slip of address and photograph of
accused Md. Arif @ Ashfaq from accused Devender Singh and
retained Rs. 300/- with himself and passed on the balance
amount of Rs. 600/-, slip of address and photograph of Md.
Arif @ Ashfaq to accused Shahanshah Alam. However, there
is no legally admissible evidence against the accused regarding
this ;
(ii) Prosecution has relied upon only disclosure statements of
the accused and co-accused recorded during police custody and
same are inadmissible in evidence ; and,
(iii) Forms for preparation of the driving licences seized by the
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: 205 :
police do not constitute any evidence against the accused as the
same are required and used by him in normal course of his
business.
311. He has invited my attention to the following authorities :-
(i) Kamal Kishore Vs. State (Delhi Admn.) 1997
(2) Crimes 169
(ii) Mangal Singh Vs. State (Delhi) 1995 (1), C.C.
Cases 45 (HC).
(iii) Ram Kishore Vs. State 1990 (2), C.C. Cases
(HC) 205.
(iv) Virender Kumar Yadav & Mukhtiar Yadav
@ Mukho Yadav @ Raj Vs. State, 1995 (3) C.C.
Cases (HC) 236
(v) State of Maharashtra Vs. Damu Gopinath
Shinde and others, AIR 2000, S.C. 1691
312. The prosecution as well as all the accused have also filed
detailed written arguments and copies of the same have been
supplied to each other. Both parties have also read over the
relevant evidence to me.
(H). LEGAL PROVISIONS :
313.Section 186 IPC provides as under :-
Obstructing public servant in discharge of
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public functions : “Whoever voluntarily
obstructs any public servant in the discharge
of his public functions, shall be punished with
imprisonment of either description for a term
which may extend to three months, or with
fine which may extend to five hundred
rupees, or with both”
314. Section 188 IPC lays down as under :-
“Whoever, knowing that, by an order promulgated by a
public servant lawfully, empowered to promulgate such
order, he is directed to abstain from a certain act, or to
take certain order with certain property in his
possession or under his management, disobeys such
direction,
shall, if such disobedience causes or tends to cause
obstruction, annoyance or injury, or risk of obstruction,
annoyance or injury, to any persons lawfully employed,
be punished with simple imprisonment for a term which
may extend to one month or with fine which may
extend to two hundred ruppes or with both ;
and if such disobedience causes or tends to cause
danger to human life, health or safety, or causes or
tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which
may extend to six months, or with fine which may
extend to one thousand rupees, or with both.”
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Explanation :- It is not necessary that the offender
should intend to produce harm, or contemplate his
disobedience as likely to produce harm. It is sufficient
that he knows of the order which he disobeys, and that
his disobedience produces, or is likely to produce harm.
315. Section 118 IPC provides as under :-
“Whoever, intending to facilitate or knowing it to be
likely that he will thereby facilitate the commission of
an offence punishable death or imprisonment for life.
Voluntarily conceals, by any act or illegal
omission, the existence of a design to commit such
offence or makes any representation which he knows to
be false respecting such design,
if offence be committed - if offence be not
committed – shall, if that offence be committed, be
punished with imprisonment of either description for a
term which may extend to seven years, or, if the offence
be not committed, with imprisonment of either
description, for a term which may extend to three
years; and in either case shall also be liable to fine.”
316. Section 216 IPC lays down as under :-
“Whenever any person convicted of or charge with
an offence, being in lawful custody for that offence,
escape from such custody, or whenever a public
servant, in the exercise of the lawful powers of such
public servant, orders a certain person to be
FIR No. 688/00, PS Kotwali
: 208 :
apprehended for an offence, whoever, knowing of such
escape or order for apprehension, harbours or conceals
that person with the intention of preventing him from
being apprehended, shall be punished in the manner
following, this is to say,
If a capital offence:--- If, the offence for which the
person was in custody or is ordered to be apprehended
is punishable with death, he shall be punished with
imprisonment of either description for a term which
may extend to seven years, and shall also be liable to
fine ;
If punishable with imprisonment for life, or with
imprisonment :---- If the offence is punishable with
imprisonment for life, or imprisonment for ten years, he
shall be punished with imprisonment of either
description for a term which may extend to three years,
with or without fine ;
and if the offence is punishable with imprisonment
which may extend to one year and not to ten years, he
shall be punished with imprisonment of the description
provided for the offence for term which may extend to
one-fourth part of the longest term of the imprisonment
provided for such offence, or with fine, or with both.”
“Offence” in this section includes also any act or
omission of which a person is alleged to have been
guilty out of India, which, if he had been guilty of it in
India would have been punishable as an offence, and
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for which he is, under any law relating to extradition, or
otherwise liable to be apprehended or detained in
custody in India ; and every such act or omission shall,
for the purpose of this section, be deemed to be
punishable as if the accused person had been guilty of it
in India.
317. Section 299 IPC lays down as under:-
Culpable homicide. - “Whoever causes death by
doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he
is likely by such act to cause death, commits the
offence of culpable homicide.”
318. Section 300 IPC lays down as under:-
Murder:- “Except in the cases hereinafter
excepted, culpable homicide is murder, if the
act by which the death is caused is done with
the intention of causing death or-
Secondly.- If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is
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: 210 :
sufficient in the ordinary course of nature to
cause death or-
Fourthly.- If the person committing the act
knows that it is so imminently dangerous that
it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
....................................................................”
319. Section 302 IPC lays down as under:
Punishment for murder:- “Whoever commits murder
shall be punished with death, or imprisonment for
life, and shall also be liable to fine.”
320. Section 353 IPC provides as under :-
Assault or criminal force to deter public
servant from discharge of his duty :
“Whoever assaults or uses criminal force to
any person being a public servant in the
execution of his duty as such public servant,
or with intent to prevent or deter that person
from discharging his duty as such public
servant, or in consequence of anything done
or attempted to be done by such person in the
lawful discharge of his duty as such public
servant, shall be punished with imprisonment
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or either description for a term which may
extend to two years, or with fine, or with
both.”
321. Section 3 of Arms Act provides as under:
“No person shall acquire , have in his possession, or
carry any firearm or ammunition unless he holds in
this behalf a licence issued in accordance with the
provisions of this Act and the rules made thereunder:
...............................................................................”
322.Section 25 (1B) (a) and (b) of the Arms Act 1959 provides
as under :-
(1B) “Whoever-
(a) acquires, has in his possession or carries any
firearm or ammunition in contravention of Section
3; or
..............................................................................
..............................................................................
.....shall be punishable with imprisonment for a
term which shall not be less than [one year] but
which may extend to three years and shall also be
liable to fine :
Provided that the Court may for any adequate and
special reasons to be recorded in the judgment
impose a sentence of imprisonment for a term of
less than [one year].”
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: 212 :
323. Section 14 of Foreigner's Act lays down as under :-
“Penalties---- If any person contravenes the provisions
of this Act or of any order made thereunder, or any
direction given in pursuance of this Act or such order,
he shall be punished with imprisonment for a term
which may extend to five years and shall also be liable
to fine ; and if such person has entered into a bond in
pursuance of clause (f) of sub-section (2) of section 3,
his bond shall be forfeited, and any person bound
thereby shall pay the penalty thereof or show cause to
the satisfaction of the convicting court why such
penalty should not be paid.”
324. Section 2 of the Explosive Substances Act lays down as
under :-
“In this Act, the expression “explosive substance”
shall be deemed to include any materials for making
any explosive substance; also any apparatus,
machine, implement or material used, or intended to
be used, or adapted for causing, or aiding in causing
any explosion in or with any explosive substance;
also any part of any such apparatus, machine or
implement.”
325.Section 4 of the Explosive Substances Act lays down as
under :-
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“Punishment for attempt to cause explosion, or for
making or keeping explosive with intent to endanger
life or property.---- Any person who unlawfully and
maliciously---
(a) does any act with intent to cause by an
explosive substance, or conspires to cause by an
explosive substance, an explosion in (India) of a nature
likely to endanger life or to cause serious injury to
property; or
(b) makes or has in his possession or under
his control any explosive substance with intent by
means thereof to endanger life, or cause serious injury
to property in (India) or to enable any other person by
means thereof to endanger life or cause serious injury to
property in (India)
shall, whether any explosion does or does not take place
and whether any injury to person or property has been
actually caused or not, be punished with imprisonment
for a term which may extend to twenty years, to which
fine may be added, or with imprisonment for a term
which may extend to seven years, to which fine may be
added.”
326. Section 5 of the Explosive Substances Act lays down as
under :-
“Punishment for making or possession explosive under
suspicious circumstances--- Any person who makes or
FIR No. 688/00, PS Kotwali
: 214 :
knowingly has in his possession or under his control
any explosive substance, under such circumstances as
to give rise to a reasonable suspicion that he is not
making it or does not have it in his possession or under
his control for a lawful object, shall, unless he can show
that he made it or had it in his possession or under his
control for a lawful object, be punishable with
imprisonment for a term which may extend to fourteen
years, to which fine may be added, or with
imprisonment for a term which may extend to five
years, to which fine may be added.”
(I) COMMON POINTS :
327.First of all, I shall dispose of common points raised on behalf
of all accused.
(i) DEFECTIVE CHARGES OF CONSPIRACY :
328. The first submission is whether the charge u/s 120-B IPC is
redundant and misplaced in the face of charges u/s 121-A IPC?
Whether the two charges cannot stand together ? It is
submitted that when there is a charge u/s 121-A IPC, the charge
u/s 120-B IPC cannot be framed as Section 120-B IPC is
contained in chapter V-A and conspiracy to commit offences
punishable u/s 121 IPC i.e., conspiracy to wage war against
Govt. of India or to overawe the Government by means of
FIR No. 688/00, PS Kotwali
: 215 :
criminal force or show criminal force is contained in Chapter
VI of IPC. The ingredients, nature and purpose of the two
conspiracies are different and as such the two charges cannot
stand together.
329. However, I find that this submission is without merit for the
reasons that there can be a conspiracy within a conspiracy and
the aim and object of two conspiracies may be different, though
some facts may overlap. Here, the aim and object of the
conspiracy u/s 121-A IPC was to wage war against the Govt. of
India and the purpose of the conspiracy u/s 120-B IPC was to
commit murder of all those, who had come in the way of
waging war against Govt. of India and also to forge a driving
licence and ration card of accused Md. Arif @ Ashfaq to give
him Indian identity. In this regard, I am fortified by an
authority reported as “ Ram Lal Narang Vs. State (Delhi
Admn.) AIR 1979 SC 1791. In this case, two cases were
registered, one u/s 120-B r/w 420/406 IPC, and the second was
registered u/s 120-B IPC r/w 411 IPC and Section 20 of the
Antiquities and Art Treasures Act 1972. In the first case, the
allegations were that some articles of great antiquity were
FIR No. 688/00, PS Kotwali
: 216 :
replaced by fake ones by cheating the court, whereas the
allegations in the second case were that these were exported out
of India and later on recovered from the accused. It was
contended on behalf of the accused that two cases were in fact
one and cognizance cannot be taken in the second case.
Dealing with the two conspiracies, Hon'ble Supreme Court
observed in para 11 as under :-
“.................... This argument is again of no relevance
in determining the question whether the two
conspiracies which were taken cognizance of by the
Ambala and the Delhi Courts were the same in
substance. The question is not whether the nature
and character of the conspiracy has changed by the
mere inclusion of a few more conspirators as accused
or by the addition of one more among the objects of
the conspiracy. The question is whether the two
conspiracies are in substance and truth the same.
Where the conspiracy discovered later is found to
cover a much larger canvas with broader
ramifications, it cannot be equated with the earlier
conspiracy which covered a smaller field of narrower
dimensions. We are clear, in the present case, that
the conspiracies which are the subject-matter of the
two cases cannot be said to be identical though the
conspiracy which is the subject-matter of the first
FIR No. 688/00, PS Kotwali
: 217 :
case may, perhaps, be said to have turned out to be
part of the conspiracy which is the subject-matter of
the second case........................”
330. Similar point was dealt with by the Hon'ble Supreme Court
in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru
2005 VI AD (SC) 545 (Parliament Attack Case). In para 7
(II), Hon'ble Supreme Court observed as under :-
“.................... It is not uncommon that the offence
alleged might seemingly fall under more than one
provision and sometimes it may not be easy to form a
definite opinion as to the Section in which the
offence appropriately falls. Hence, charges are often
framed by way of abundant caution. Assuming that
an inapplicable provision has been mentioned, it is
no ground to set aside the charges and invalidate the
trial.”
331. Similarly in paragraph 15 in Mohd. Husain Umar Kochra
Etc. Vs. K.S. Dalipsinghji and Another etc., 1970, Supreme
Court Cases (Cr.) 99, the point of criminal conspiracy and
separate conspiracy was dealt with and Hon'ble Supreme Court
observed as under :-
“15. As to the second question the contention was
that the evidence disclosed a number of separate
FIR No. 688/00, PS Kotwali
: 218 :
conspiracies and that the charge of general
conspiracy was not proved. Criminal conspiracy as
defined in Section 120-A of the I.P.C is an agreement
by two or more persons to do or cause to be done an
illegal act which is not illegal means. The agreement
is the gist of the offence. In order to constitute a
single general conspiracy there must be a common
design and a common intention of all to work in
furtherance of the common design. Each conspirator
plays his separate part in one integrated and united
effort to achieve the common purpose. Each one is
aware that he has a part to play in a general
conspiracy though he may not know all its secrets or
the means by which the common purpose is to be
accomplished. The evil scheme may be promoted by
a few, some may drop out and some may join at a
later stage, but the conspiracy continues until it is
broken up. The conspiracy may develop in
successive stages. There may be a general plan to
accomplish the common design by such means as
may from time to time be found expedient. New
techniques may be invented and new means may be
devised for advancement of the common plan. A
general conspiracy must be distinguished from a
number of separate conspiracies having a similar
general purpose. Where different groups of persons
co-operate towards their separate ends without any
FIR No. 688/00, PS Kotwali
: 219 :
privity with each other, each combination constitutes
a separate conspiracy. The common intention of the
conspirators then is to work for the furtherance of the
common design of his group only. The cases
illustrate the distinction between a single general
conspiracy and a number of unrelated conspiracies.
In S.K. Khetwani v. State of Maharashtra and S.
Swaminatham v. State of Madrs the court found a
single general conspiracy while in R. v. Griffiths the
court found a number of unrelated the separate
conspiracies.”
(ii) SANCTIONS :
332. Section 196 Cr.P.C., provides as under :-
“Prosecution for offence against the State and for
criminal conspiracy to commit such offence------
(1) No Court shall take cognizance of ------
(a) any offence punishable under Chapter VI or under
Section 153-A, (section 295-A of sub-section (1) of
section 505) of Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108-A
of the Indian Penal Code (45 of 1860)
except with the previous sanction of the Central
Government or of the State Government.
................................................”
FIR No. 688/00, PS Kotwali
: 220 :
333. Section 197 Cr.P.C, lays down as under :-
“Prosecution of Judges and public servants---
(1) When any person who is or was a judge or
Magistrate or a public servant not removable from
his office save by or with the sanction of the
Government is accused of any offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official duty,
no Court shall take cognizance of such offence
except with the previous sanction----
(a) in the case of a person who is employed or, as the
case may be, was at the time of commission of the
alleged offence employed, in connection with the
affairs of the Union, of the Central Government ;
(b) in the case of a person who is employed or, as the
case may be, was at the time of commission of the
alleged offence employed, in connection with the
affairs of a State, of the State Government ;
.......................................................................”
334. Section 39 of the Arms Act 1969 provides as under :-
“Previous sanction of the district magistrate
necessary in certain cases- No prosecution shall be
instituted against any person in respect of any
offence under Section 3 without the previous
sanction of the district magistrate.”
335.Sec. 7 of Explosive Substances Act 1908, provides as under:
FIR No. 688/00, PS Kotwali
: 221 :
“Restriction on trial of offence---- No court shall
proceed to the trial of any person for an offence
against this Act except the consent of Central
Government”
336. The next submission of the learned defence counsel is that
sanction u/s 196 Cr.P.C was not granted by Competent
Authority and it should have been granted by the Government
of India. Hon'ble Lt. Governor of National Capital Territory of
Delhi is not competent to grant sanction for prosecution u/s
121/121-A IPC. The second leg of this argument for all the
accused is that Sanctions were granted u/s 196 Cr.P.C., u/s 197
Cr.P.C against accused Mool Chand Sharma, u/s 39 Arms Act
and Section 7 of Explosive Substances Act against Md. Arif
@ Ashfaq without application of mind by authorities. The
sanction orders are Exs. PW-167/A, PW-167/B and PW-167/C,
PW-201/A, PW-106/A and PW-199/A. The first question is :
Whether Hon'ble Lt. Governor of Delhi is competent to grant
sanction under Section 196 Cr.P.C., for prosecution u/s
121/121-A IPC ?
337. This question was answered directly by the Hon'ble Supreme
Court in “Parliament Attack Case (Supra)” in paragraph 5(v)
FIR No. 688/00, PS Kotwali
: 222 :
as under :-
“(v) As regards the sanction under Section 196
Cr.P.C., it is recited in the sanction order (Ext.
P11/2) that the Lt. Governor acted in exercise of
powers conferred by sub-Section (1) of Section 196
Cr.P.C read with the Government of India, Ministry
of Home Affairs notification dated 20th March 1974.
Under that notification, there was delegation of
powers of the Lt. Governor to grant sanction. The
said notification which finds place in the Annexures
to the written submissions made on behalf of Gilani
shows that it was issued under Article 239(1) of the
Constitution enabling the Administrator of the Union
Territory to discharge powers and functions of the
State Government under the Cr.P.C. We accept the
submission of the learned senior counsel for the State
that the delegation of power contained in the said
notification will continue to operate unless the
Parliament by law provides otherwise. The
Government of NCT of Delhi Act, 1991 does not in
any way affect the validity of delegation contained in
the Presidential Notification issued under Article
239. .......................”
338. The next question is : Whether the sanctions were granted by
the concerned authorities with proper application of mind ? It
has been argued before me in great detail that the authorities
FIR No. 688/00, PS Kotwali
: 223 :
concerned did not apply their minds to the facts of the case and
sanctions were granted mechanically without application of
mind and as such the sanctions granted are void and illegal.
This question was also directly answered by the Hon'ble
Supreme Court in “Parliament Attack Case (Supra)” in para
5(vi) as under at page 569:-
“........................ On the validity of sanction, we have
to consider yet another contention of the learned
senior counsel Mr. R. Jethmalani that in the absence
of recital of facts to sustain prosecution or proof of
consideration of such facts, the sanction order must
be held to have been vitiated on the ground of non-
application of mind. Relying on the dicta of the
Privy Council in Gokulchand's case, it has been
pointed out that no facts constituting the relevant
offences were set out in the order nor any extraneous
evidence was let in to show that the sanctioning
authority was seized of the facts alleged to constitute
the relevant offence. In Gokulchand's case
(Supra), the sanction order of the Government was a
bald order stating that the Government was “pleased
to accord sanction under Clause 23 of Cotton Cloth
and Yarn (Control) Order to the prosecution of Mr.
Gokulchand Dwarkadas for breach of the provisions
of Clause 18(2) of the said order.” The Privy
FIR No. 688/00, PS Kotwali
: 224 :
Council held that the sanction read with the evidence
adduced at the trial was not in compliance with the
provisions of Clause 23 of the said Control Order.
The following observations in that judgment may be
noted :
“............ In their Lordships' view, in order
to comply with the provisions of clause 23, it
must be proved that the sanction was given in
respect of the facts constituting the offence
charged. It is plainly desirable that the facts
should be referred to on the face of the sanction,
but this is not essential, since clause 23 does not
require the sanction to be in any particular form,
nor even to be in writing. But if the facts
constituting the offence charged are not shown
on the face of the sanction, the prosecution must
prove by extraneous evidence that those facts
were placed before the sanctioning authority
........... “
The ruling of the Privy Council was cited
with approval by this Court in Jaswant Singh Vs.
State of Punjab [AIR 1958 SC 124] and certain
other cases. Ultimately, the test to be applied is
whether relevant material that formed the basis of
allegations constituting the offence was placed
before the sanctioning authority and the same was
perused before granting sanction. We are of the view
FIR No. 688/00, PS Kotwali
: 225 :
that this test has been amply satisfied in the instant
case. The sanction orders on their face indicate that
all relevant material viz. FIR, disclosure statements,
recovery memos, draft charge sheet and other
material on record was placed before the sanctioning
authority. The fact that the sanctioning authority
perused al this material is also discernible from the
recital in the sanction orders. The sanction orders
make it clear that the sanctioning authority had
reached the satisfaction that prima facie the accused
committed or conspired to commit the offences
mentioned therein. The elaborate narration of facts
culled out from the record placed before the
sanctioning authority and the discussion as to the
applicability of each and every Section of the penal
provision quoted therein is not an imperative
requirement. A pedantic repetition from what is
stated in the FIR or the draft charge-sheet or other
documents is not what is called for in order to judge
whether there was due application of mind. It must
be noted that the grant of sanction is an executive act
and the validity thereof cannot be tested in the light
of principles applied to the quasi-judicial order vide
the decisions in State of Bihar Vs. P.P. Sharma
[(1992) supp. 1 SCC 222] and Superintendent of
Police Vs. Deepak Chowdary [(1995) 6 SCC
FIR No. 688/00, PS Kotwali
: 226 :
225.]...................................”
FIR No. 688/00, PS Kotwali
: 227 :
339. In the instant case, PW-167 Sh. G.L. Meena, deposed that
recovery memo, disclosure statements, statements u/s 161
Cr.P.C., and other material was placed before the Hon'ble Lt.
Governor, Delhi for seeking sanction u/s 196 Cr.P.C. In the
cross-examination, he denied that sanction was granted
mechanically. Similarly, PW-106 Sh. M.S. Upadhyay (DIG)
also deposed that he had carefully examined the entire record
before granting sanction u/s 39 of the Arms Act. Similar is the
case with PW-199 Sh. Rakesh Behari, Joint Secretary to Govt.
of India, who granted sanction u/s 197 Cr.P.C, for prosecution
of accused Mool Chand Sharma, as the accused is a
Government Servant. He deposed that he had perused the
entire record of the case. Similarly, PW-201 Sh. Raj Kumar,
the then Addl. DCP, East Delhi, deposed that he had perused
all the documents and applied his mind before granting
sanction u/s 39 of Arms Act. Similar is the case with PW-167
Sh. G.L. Meena and PW-192 Sh. N.N. Mahrotra. In the cross-
examination of these four witnesses, there is nothing of any
significance, which could render the sanctions granted illegal,
being without application of proper mind. As such, I find that
FIR No. 688/00, PS Kotwali
: 228 :
relevant sanctions have been granted by the competent
authorities after due application of mind.
(iii) CONSPIRACY :
340. The next question is whether there was conspiracy to wage
war against the Govt. of India and whether in prosecution of
this conspiracy, there were further conspiracies to commit
various illegal acts like killing those who come in the way of
conspirators and to forge driving licence and ration card to
give Indian identity to accused Md. Arif @ Ashfaq and to
harbour him and conceal his criminal designs ?
341. Section 120-A IPC lays down as under :-
“When two or more persons agree to do, or cause to
be done-----
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof.”
342.Section 120 B IPC lays down as under :-
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“(1) Whoever is a party to a criminal conspiracy to
commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no
express provision is made in this Code for the
punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2)Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both
.................................................................”
343. Section 121A IPC povides as under:
“ Whoever within or without India conspires to
commit any of the offences punishable by section
121, or conspires to overawe, by means of criminal
force or the show of criminal force, the Central
government or any State Government , shall be
punished with imprisonment for life, or with
imprisonment of either description which may extend
to ten years, and shall also be liable to fine.”
Explanation: To constitute a conspiracy under this
section, it is not necessary that any act or illegal
omission shall take place in pursuance thereof.
FIR No. 688/00, PS Kotwali
: 230 :
344. Section 10 of the Evidence Act 1872, provides as
under :-
“Where there is reasonable ground to believe that
two or more persons have conspired together to
commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in
reference to their common intention, after the time
when such intention was first entertained by any one
of them, is a relevant fact as against each of the
persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was
a party to it.”
345. The law regarding conspiracy was explained in detail by the
Hon'ble Supreme Court in Nalini (Supra). In para 574,
Hon'ble Supreme Court observed as under :-
“Some of the broad principles governing the law of
conspiracy may be summarized though, as the name
implies, a summary cannot be exhaustive of the
principles.
1. Under section 120A IPC offence of criminal
conspiracy is committed when two or more persons
agree to do or cause to be done an illegal act or legal
act by illegal means. When it is legal act by illegal
means overt act is necessary. Offence of criminal
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conspiracy is exception to the general law where
intent alone does not constitute crime It is intention
to commit crime and joining hands with persons
having the same intention. Not only the intention but
there has to be agreement to carry out the object of
the intention, which is an offence. The question for
consideration in a case is did all the accused had the
intention and did they agree that the crime be
committed. It would not be enough for the offence
of conspiracy when some of the accused merely
entertained a wish, howsoever, horrendous it may be,
that offence be committed.
2. Acts subsequent to the achieving of object of
conspiracy may tend to prove that a particular
accused was party to the conspiracy. Once the object
of conspiracy has been achieved, any subsequent act,
which may be unlawful, would not make the accused
a part of the conspiracy like giving shelter to an
absconder.
3. Conspiracy is hatched in private or in secrecy. It
is rarely possible to establish a conspiracy by direct
evidence. Usually, both the existence of the
conspiracy and its objects have to be inferred from
the circumstances and the conduct of the accused.
4. Conspirators may, for example, be enrolled in
chain. A enrolling B, B enrolling C, and so on and all
will be members of the single conspiracy if they so
FIR No. 688/00, PS Kotwali
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intend and agree, even though each member knows
only the person who enrolled him and the person
whom he enrolls. There may be a kind of umbrella-
spoke enrollment, where a single person at the centre
doing the enrolling and all the other members being
unknown to each other, though they know that there
are to be other members. These are theories and in
practice it may be difficult to tell whether the
conspiracy in a particular case falls into which
category. It may be, however, even overlap. But
then there has to be present mutual interest. Persons
may be members of single conspiracy even though
each is ignorant of the identity of many others who
may have diverse role to play. It is not a part of the
crime of conspiracy that all the conspirators need to
agree to play the same or an active role.
5. When two or more persons agree to commit a
crime of conspiracy, then regardless of making or
considering any plans for its commission, and despite
the fact that no step is taken by any such person to
carry out their common purpose, a crime is
committed by each and every one who joins in the
agreement. There has thus to be two conspirators and
there may be more than that. To prove the charge of
conspiracy it is not necessary that intended crime
was committed or not. If committed it may further
help prosecution to prove the charge of conspiracy.
FIR No. 688/00, PS Kotwali
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6. It is not necessary that all conspirators should
agree to the common purpose at the same time. They
may join with other conspirators at any time before
the consummation of the intended objective and all
are equally responsible. What part each conspirator
is to play may not be known to everyone or the fact
as to when a conspirator joined the conspiracy and
when he left.
7. A charge of conspiracy may prejudice the
accused because it is forced them into a joint trial
and the court may consider the entire mass of
evidence against every accused. Prosecution has to
produce evidence not only to show that each of the
accused has knowledge of object of conspiracy but
also of the agreement. In the charge of conspiracy
Court has to guard itself against the danger of
unfairness to the accused. Introduction of evidence
against some may result in the conviction of all,
which is to be avoided. By means of evidence in
conspiracy, which is otherwise inadmissible in the
trial of any other substantive offence prosecution
tries to implicate the accused not only in the
conspiracy itself but also in the substantive crime of
the alleged conspirators. There is always difficult in
tracing the precise contribution of each member of
the conspiracy but then there has to be cogent and
convincing evidence against each one of the accused
FIR No. 688/00, PS Kotwali
: 234 :
charged with the offence of conspiracy. As observed
to Judge Learned Hand that “this distinction is
important today when many prosecutors seek to
sweep within the dragnet of conspiracy all those who
have been associated in any degree whatever with the
main offenders.”
8. As stated above, it is the unlawful agreement and
not its accomplishment, which is the gist or essence
of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no
agreement as to the means by which the purpose is to
be accomplished. It is the unlawful agreement,
which is the gravamen of the crime of conspiracy.
The unlawful agreement which amounts to a
conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances,
especially declarations, acts and conduct of the
conspirators. The agreement need not be entered into
by all the parties to it at the same time, but may be
reached by successive actions evidencing their
joining of the conspiracy.
9. It has been said that a criminal conspiracy is
a partnership in crime, and that there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more
persons enter into a conspiracy, any act done by any
of them pursuant to the agreement is in
FIR No. 688/00, PS Kotwali
: 235 :
contemplation of law, the act of each of them and
they are jointly responsible therefor. This means that
everything said, written or done by any of the
conspirators in execution or furtherance of the
common purpose is deemed to have been said done,
or written by each of them. And this joint
responsibility extends not only to what is done by
any of the conspirators pursuant to the original
agreement but also to collateral acts incident to and
growing out of the original purpose. A conspirator is
not responsible, however, for acts done by a co-
conspirator after termination of the conspiracy. The
joinder of a conspiracy by a new member does not
create a new conspiracy nor does it change the status
of the other conspirators, and the mere fact that
conspirators individually or in groups perform
different tasks to a common end does not split up a
conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who
commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly consents to
the object of a conspiracy and goes alongwith other
conspirators, actually standing by while the other but
the conspiracy into effect, is guilty though he intends
FIR No. 688/00, PS Kotwali
: 236 :
to take no active part in the crime.”
346. Interpreting Section 10 of the Evidence Act, Privy Council in
an authority reported as Mirza Akbar Vs. King Emperor,
AIR 1940 PC 176, observed as under :
“ This being the principle, their Lordships think the
words of Section 10 must be construed in accordance
with it and are not capable of being widely construed
so as to include a statement made by one conspirator
in the absence of the other with reference to past acts
done in the actual course of carrying out the
conspiracy, after it has been completed. The
common intention is in the past. In their Lordships'
judgment, the words 'common intention' signify a
common intention existing at the time when the thing
was said, done or written by one of them. Things
said, done or written while the conspiracy was on
foot are relevant as evidence of the common
intention, once reasonable ground has been shown to
believe in its existence. But it would be a very
different matter to hold that any narrative or
statement or confession made to a third party after
the common intention or conspiracy was no longer
operating and had ceased to exist is admissible
against the other party. There is then no common
intention of the conspirators to which the statement
FIR No. 688/00, PS Kotwali
: 237 :
can have reference. In their Lordships' judgment
Section 10 embodies this principle. That is the
construction which has been rightly applied to
Section 10 in decisions in India.
In these cases the distinction was rightly
drawn between communications between
conspirators while the conspiracy was going on with
reference to the carrying out of conspiracy and
statements made, after arrest or after the conspiracy
has ended, by way of description of events then past”
347. In the instant case, the following facts are held to have been
established in the later part of the judgment :-
(i) Accused Md. Arif @ Ashfaq @ Abu Hamad, accused Abu
Shamal, Abu Bilal, and Abu Haider all Pakistan nationals
along with their associates, entered India illegally fully armed
with sophisticated weapons and ammunitions
(ii) Accused Md. Arif @ Ashfaq set up a base at Delhi at 18-C,
Gaffur Nagar, Okhla and G-73, Muradi Road, Okhla, Delhi.
(iii) Accused Md. Arif @ Ashfaq obtained training for driving
from Seven Star Motor Driving College, Sarai Jullena with
address A-18, Gaffur Nagar, Okhla, Delhi and telephone
number 9810263721.
FIR No. 688/00, PS Kotwali
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(iv) He acquired a driving licence with address at 102, Kela
Bhatta, Ghaziabad on the basis of a forged ration card and a
forged learning licence issued at the address of B-17, Jungpura,
Delhi, the two addresses where he never resided and there is no
question of his residing over there as he admittedly is a Pak
national.
(v) He acquired a forged ration card Ex. PW-164/A with
address at 17/12, Batla House, New Delhi. This ration card
was never issued by the office of Food & Supply Office,
Circle-6, Okhla, New Delhi.
(vi) He opened a bank account with HDFC Bank, New Friends
Colony, Okhla, on the basis of the driving licence being
account number 0891000024344 and deposited more than Rs.
Five lacs therein and one of the receipt is Ex. PW-173/K for
Rs. Five lacs.
(vii) He contacted Rehmana Yusuf Farukhi, resident of 308-A,
DDA Flats, Gazhipur, Delhi in response to her matrimonial
advertisement and married her in December 2000 and gave her
Rs. 2,80,000/- (Rs. Two lacs & eighty thousand only).
(viii) He deposited Rs. 29,50,000/- (Rs. Twenty-nine lacs &
FIR No. 688/00, PS Kotwali
: 239 :
fifty thousand only) in the accounts of Bilal Ahmad Qawa,
Nazir @ Sons, and Farukh Ahmad Quasid.
(ix) On 22.12.2000, at about 9.00 pm, two persons attacked
Army Camp inside Red Fort and killed three Army jawans
namely Uma Shankar, Abdullah Thakir and Ashok Kumar.
(x) At the time of his apprehension, a pistol with six live
cartridges and a mobile phone number 9811278510 was
recovered from his person and he was shown to be in constant
telephonic contact with accused Nazir Ahmad Quasid, Farukh
Ahmad Quasid, Attruddin (P.O.), Sadakat Ali and other
accused and from this telephone calls were made to BBC, Sri
Nagar and BBC Delhi, informing almost at the time of incident
that Lashkar-e-Toiba had attacked Army camp inside Red Fort.
(xi) At the pointing out of accused Md. Arif @ Ashfaq , raid
was conducted at G-73, Muradi Road, Okhla, Delhi, where
accused Abu Shamal was killed in encounter, who was later on
identified by him (Md. Arif) as his associate and from where
one AK-56 rifle, one magazine with thirty cartridges, two
hand-grenades, one bandoleer, a military colour pouch, and one
khaki uniform were recovered.
FIR No. 688/00, PS Kotwali
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(xii) On his pointing out, one AK-56 rifle, two magazines with
thirty-two live rounds, one bandoleer, four hand-grenades and
a kitchen knife were recovered from behind the Red Fort on
26.12.2000 :
(xiii) On 01.01.2000, on his pointing out, three hand-grenades
were recovered from the area of Staff Quarter, Jamia Milia
University, Delhi :
(xiv) One AK-56 rifle and some live cartridges were recovered
in the morning of 23.12.2000 from Vijaya Ghat, a place not far
away from the scene of occurrence ; and,
(xv) The fired cartridge cases recovered from the scene of
occurrence have been deposed to as to have been fired from
these rifles and these two rifles and the rifle recovered from G-
73, Muradi Road are of same type.
348. A bare perusal of the aforesaid pieces of evidence would
show that there was a conspiracy to wage war against the Govt.
of India and to commit other offences as may be necessary for
the prosecution of this conspiracy and this point is self evident
and requires no further elaboration.
(iv) WAGING OF WAR :
FIR No. 688/00, PS Kotwali
: 241 :
349. It is next submitted that the facts of the case do not consitute
waging of war against the Government of India as only one or
two foreigners were involved in the incident and only three
persons have been killed and this is a very small incident and
by no stretch of imagination, it can be termed as an act of
waging war against the Government of India. Now the question
is : Whether the act of attacking the Army Camp inside the Red
Fort and killing three Army jawans amounts to waging of war
against the Government of India ?
350. Section 121 IPC provides as under:
“ Whoever wages war against the Government of
India, or attempts to wage such war, or abets the
waging of such war, shall be punished with death, or
imprisonment for life, and shall also be liable to
fine.”
351. It is argued that attacking Army camp and killing three
Army jawans does not amounts to waging war against Govt. of
India. For bringing an incident within the four corners of
Section 121 IPC, the incident must have the colour of a
traditional war in which one country attacks another country. If
a foreign national enters another country on his own and
FIR No. 688/00, PS Kotwali
: 242 :
commits some crime there, that does not amounts to waging of
war. It is a plain and simple routine crime. Relying upon the
authority of Mir Hasan Khan Vs. State, AIR 1951 Patna 60,
it is argued that from the facts of the case, it cannot be said that
by killing three Army persons, an attempt was made to
overwhelm and defeat the forces of Govt. of India.
352. I find that in “Parliament Attack Case (Supra)” the Hon'ble
Supreme Court discussed the above-said authority and the
relevant case law and observed at page 668 as under :-
“On the analysis of the various passages found in the
cases and commentaries referred to above, what are
the high-lights we come across ? The most important
is the intention or purpose behind the defiance or
rising against the Government. As said by Foster,
“The true criterion is quo animo did the parties
assemble” ? In other words the intention and
purpose of the war-like operation directed against the
Government machinery is an important criterion. If
the object and purpose is to strike at the sovereign
authority of the Ruler or the Government to achieve a
public and general purpose in contra-distinction to a
private and a particular purpose, that is an important
indicia of waging war. Of course, the purpose must
be intended to be achieved by use of force and arms
FIR No. 688/00, PS Kotwali
: 243 :
and by defiance of Government troops or armed
personnel deployed to maintain public tranquility.
Though the modus operandi of preparing for the
offensive against the Government may be quite akin
to the preparation in a regular war, it is often said
that the number of force, the manner in which they
are arrayed, armed or equipped is immaterial. Even a
limited number of persons who carry powerful
explosives and missiles without regard to their own
safety can cause more devastating damage than a
large group of persons armed with ordinary weapons
or fire arms. Then, the other settled proposition is
that there need not be the pomp and pageantry
usually associated with war such as the offenders
forming themselves in battle-line and arraying in a
war like manner. Even a stealthy operation to
overwhelm the armed or other personnel deployed by
the Government and to attain a commanding position
by which terms could be dictated to the Government
might very well be an act of waging war”
353. Dealing with the question of accused being a foreign
national, it was observed at page 671 as under :-
“................... It was next contended that foreign
nationals who intrude into the territory of India and
do not owe even temporary allegiance to the
Government of India cannot be charged of the
FIR No. 688/00, PS Kotwali
: 244 :
offence of waging war. In other words, the
contention is that a person who is not a citizen nor a
resident alien cannot be accused of high treason. The
decisions of House of Lords in Joys Vs. DPP [1946
AII ER page 186] and of Privy Council in
Lodewyk Johannes Vs. Ag of Natal [1907 AC 326]
have been referred to. The dicta in Anthony
Crammer Vs. USA [325 US page 1-77] and in the
case of United States Vs. Villato [1797 CC
Pennsylvania Page 419] have also been referred to
in support of his proposition. The learned counsel
has also place reliance on Sec. 13 of the 2nd Report of
the Law Commissioners on the Indian Penal Code,
the excerpts of which are given in Nazir Khan's
case [(2003) 8 SCC 461 at 486]. The Law
Commissioners observed thus :
“ The law of a particular nation or country
cannot be applied to any persons but such as
awe allegiance to the Government of the
country, which allegiance is either perpetual, as
in the case of a subject by birth or naturalization
&c. or temporary, as in the case of a foreigner
residing in the country. They are applicable of
course to all such as thus owe allegiance to the
Government, whether as subjects or foreigners,
excepting as excepted by reservations or
FIR No. 688/00, PS Kotwali
: 245 :
limitations which are parts of the law in
question.”
We find it difficult to sustain the argument of
learned Senior Counsel. The word 'whoever' is a
word of broad import. Advisedly such language was
used departing from the observations made in the
context of Treason statute. We find no good reason
why the foreign nationals stealthily entering into the
Indian territory with a view to subverting the
functioning of the Government and destabilizing the
society should not be held guilty of waging war
within the meaning of Section 121. The section on
its plain terms, need not be confined only to those
who owe allegiance to the established Government.
We do not have the full text of the Law
Commissioners' Report and we are not in a position
to know whether the Law Commissioners or the
drafters of Indian Penal Code wanted to exclude
from the ambit of Section 121 the unauthorized
foreigners sneaking into Indian territory to undertake
war like operations against the Government.
Moreover, we have no material before us to hold that
the views of Law Commissioners on this aspect,
were accepted. Those views, assuming that they are
clearly discernible from the extracted passage, need
not be the sole guiding factor to construe the
expression 'waging war'. Though the above
FIR No. 688/00, PS Kotwali
: 246 :
observations were noticed in Nazir Khan's case, the
ultimate decision in the case shows that the guilt of
the accused was not judged from that standpoint. On
the other hand, the conviction of foreigners
(Pakistani militants) was upheld in that case.”
354. In the instant case, foreign nationals including accused Md.
Arif @ Ashfaq, Abu Shamal and others entered India
unauthorisely while being heavily armed with AK-56 rifles,
large amount of ammunition, hand-grenades and other
paraphernalia, set up bases at Delhi and killed three Army
personals inside Red Fort by attacking them with AK-56 Rifles.
The scale of weapons brought by the accused, the preparation
made prior to commission of the act, the target selected by
them and the casualties inflicted by them make it abundantly
clear that the intention of the offenders was to wage war
against the Govt. of India by targeting its armed forces
stationed at Red Fort, a place of national importance and pride.
Nationality of the accused, their number and the ultimate
damage inflicted by them is of no consequence. It is the
intention behind the commission of the offence that has to be
given due importance and here the intention is reflected in the
FIR No. 688/00, PS Kotwali
: 247 :
number and sophistication of weapons, target chosen i.e. Army
camp and place i.e. Red Fort situated in the Capital of India.
(v) HANDWRITING REPORT :
355. The next question is : Whether the hand-writing report
about the signatures obtained during investigation of the case is
admissible ? It is contended that specimen signatures of the
accused were obtained during investigation without the
permission of the court. The specimen signatures of the
accused ought to have been obtained with the permission of the
court and since this procedure has not been followed, the report
of the handwriting expert about these signatures is not
admissible.
356. However, this argument is noted to be dismissed. This point
was directly dealt with by the Hon'ble Supreme Court in
“Parliament Attack Case (Supra)” and following
observations were made at page 649 :-
“.................. In this context, a contention was raised
before the High Court that in view of Section 27 of
POTA, specimen signature should not have been
obtained without the permission of the Court. In
FIR No. 688/00, PS Kotwali
: 248 :
reply to this contention urged before the High Court,
Mr. Gopal Subramanium, the learned senior counsel
for the State clarified that on the relevant date, when
the specimen signatures of Afzal were obtained, the
investigation was not done under the POTA
provisions and de hors the provisions of POTA, there
was no legal bar against obtaining the handwriting
samples. The learned counsel relied upon by the 11
Judge Bench decision of this Court in State of
Bombay Vs. Kattikalu Oghad [1962 (3) SCR 10]
in support of his contention that Article 23 of the
Constitution was not infringed by taking the
specimen handwriting or signature or thumb
impression or a person in custody. Reference has
also drawn to the decision of this Court in State of
U.P. Vs. Boota Singh [ (1979) 1 SCC 31]. We find
considerable force in this contention advanced by
Mr. Gopal Subramanium. In fact this aspect was not
seriously debated before us. ........................”
(vi) NATURE AND QUALITY OF CIRCUMSTANTIAL EVIDENCE :
357. This is a case, which is based entirely on circumstantial
evidence. There is absolutely no direct evidence against any of
the accused. The circumstantial evidence is to be weighed very
FIR No. 688/00, PS Kotwali
: 249 :
carefully before arriving at the guilt or otherwise of the
accused. Let me quote the relevant law in this regard.
358. Dealing with a case based on circumstantial evidence, in an
authority reported as Sharad Sirdhichand Sarda Vs. State of
Maharashtra, A.I.R. 1984, S.C. 1622, Hon'ble Supreme
Court has observed that before conviction could be based on
circumstantial evidence, the following conditions must be
fulfilled :-
“(i) The circumstance from which the
conclusion of guilt is to be drawn should be
fully established. The circumstance
concerned 'must or should' and not 'may be'
established ;
(ii) The facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they should
not be explainable on any other hypothesis
except the accused is guilty ;
(iii) The circumstances should be of an
conclusive nature and tendency ;
(iv) They should exclude every possible
hypothesis except the one to be proved ; and,
FIR No. 688/00, PS Kotwali
: 250 :
(v) There must a chain of evidence as
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.”
359. Similar observations were made by the Hon'ble Supreme
Court, in a recent authority reported as Vilas Pandurang Patil
Vs. State of Maharashtra, AIR 2004 SC 3562, in paragraphs
12 and 14 as under :-
“12. In Padala Veera Reddy V. State of A.P. (AIR
1990 SC 79), it was laid down that when a case rests
upon circumstantial evidence, such evidence must
satisfy the following tests :-
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established ;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else ; and
FIR No. 688/00, PS Kotwali
: 251 :
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of guilt of
the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.”
14. Sir Alfred wills in his admirable book 'wills'
circumstantial Evidence' (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence : (1) the facts alleged as the
basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum
probandum ; (2) the burden of proof is always on the
party who asserts the existence of any fact, which
infers legal accountability ; (3) in all cases, whether of
direct or circumstantial evidence the best evidence
must be adduced which the nature of the case admits ;
(4) in order to justify the inference of guilt, the
inculpatory facts must be incompatible with the
innocence of the accused and incapable of explanation,
upon any other reasonable hypothesis than that of his
guilt ; and (5) if there be any reasonable doubt of the
guilt of the accused, he is entitled as of right to be
acquitted.”
(vii) RECORD OF MOBILE PHONES :
360. Next question is : Whether the mobile phone records Exs.
FIR No. 688/00, PS Kotwali
: 252 :
PW-195/B, PW-198/B-1 to 3, PW-198/C, PW-198/E and PW-
229/A are admissible in evidence ? It is contended by Sh.
Tufail, ld. Defence counsel that the electronic record has not
been proved in the manner laid down under the law. The
officials who produced the record have not certified the copies
of the record to be true. There is no averment that the
computers are being used regularly and the information was fed
there into in the ordinary course of business. Moreover,
documents are also not reliable as the entries are not in
chronological order.
361. On the contrary, Sh. Bakshish Singh, learned Special Public
Prosecutor has contended that the information has been attested
to be true by the responsible official and this is the sufficient
compliance of the provisions of law and no specific words are
required to be used in this regard. As far as the entries not
being in chronological order in Ex. PW-198/E, it is submitted
that sometime computer jumps and that jump is quite natural
but that does not affect the accuracy of the information
recorded therein. In this regard, my attention has been invited
to the testimony of PW-198 Sh. Rajiv Pandit.
FIR No. 688/00, PS Kotwali
: 253 :
362. Section 3 of Evidence Act defines evidence as under :-
“Evidence” means and includes---
(1) all statements which the Court permits or requires
to be made before it by witnesses, in relation to
matters of fact under inquiry ;
such statements are called oral evidence ;
(2) [all documents including electronic records
produced for the inspection of the Court.]
such documents are called documentary evidence.”
..................................................................................
..............................................................................”
[ the expression “Certifying Authority”, “digital
signature”, Digital Signature Certificate”, electronic
form”, “electronic records”, “information”, “secure
electronic record”, “secure digital signature” and
“subscriber” shall have the meanings respectively
assigned to them in the Information Technology Act,
2000]”
363. Section 65-A of Evidence Act lays down as under :-
“65-A Special provisions as to evidence relating to
electronic record--- The contents of electronic
records may be proved in accordance with the
provisions of Section 65-B.”
364. Section 65-B of Evidence Act lays down as under :-
“65-B. Admissibility of electronic records----
FIR No. 688/00, PS Kotwali
: 254 :
(1) Notwithstanding anything contained in this Act,
any information contained in an electronic record
which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in
relation to the information and computer in question
and shall be admissible in any proceedings, without
further proof or production of the original, as
evidence of any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in
respect of a computer output shall be the following,
namely :----
(a) the computer output containing the information
was produced by the computer during the period over
which the computer was used regularly to store or
process information for the purposes of any activities
regularly carried on over that period by the person
having lawful control over the use of the computer ;
(b) during the said period, information of the kind
contained in the electronic record or of the kind from
which the information so contained is derived was
regularly fed into the computer in the ordinary course
of the said activities ;
FIR No. 688/00, PS Kotwali
: 255 :
© throughout the material part of the said period, the
computer was operating properly or, if not, then in
respect of any period in which it was not operating
properly or was out of operation during that part of
the period, was not such as to affect the electronic
record or the accuracy of its contents, and
(d) the information contained in the electronic record
reproduce or is derived from such information fed
into the computer in the ordinary course of the said
activities..............................................”
365. Dealing with the admissibility of paper print-out of electronic
record, Hon'ble Delhi High Court in State Vs. Md. Afzal &
Ors. 2003 VII AD (Delhi) 1 (Parliament Attack Case)
observed in paragraphs 272 & 273 as under :-
“272. Thus, computer generated electronic records is
evidence, admissible at a trial if proved in the
manner specified by Section 65-B of the Evidence
Act.”
“273. Sub-section (1) of Section 65-B makes
admissible as a document, paper print out of
electronic records stored in optical or magnetic
media produced by a computer, subject to the
fulfillment of the conditions specified in sub-section
(2) of Section 65-B. Following are the conditions
specified by sub-section (2) :
FIR No. 688/00, PS Kotwali
: 256 :
(a) The computer from which the record is generated
was regularly used to store or process information in
respect of activity regularly carried on by a person
having lawful control over the period, and relates to
the period over which the computer was regularly
used ;
(b) Information was fed in the computer in the
ordinary course of the activities of the person having
lawful control over the computer ;
© The computer was operating properly, and if not,
was not such as to affect the electronic record or its
accuracy ;
(d) Information reproduced is such as is fed into
computer in the ordinary course of activity.”
366. On perusal of the record, I find that call detail Ex. PW-
195/B of Airtel has been supplied under the signature of Sh.
Rakesh Bakshi, Security Manager in response to the
application Ex. PW-195/A of Investigating Officer PW-230
Ins. Surender Kumar Sund. Similarly, cell ID detail Ex. PW-
198/C and call detail of PW-198/B-1 to 3 of Essar have been
signed on each page by PW-198 Sh. Rajiv Pandit and was
supplied to the Investigating Officer vide letter Ex. PW-198/A
by him. Similary, call detail Ex. PW-198/E is signed on each
FIR No. 688/00, PS Kotwali
: 257 :
page by Sh. Gulshan Arora, Nodel Officer of the company,
which was supplied vide letter Ex. PW-198/D. PW-195 Sh.
Rakesh Bakshi, Senior Security Manager and PW-198 Sh.
Rajiv Pandit, General Manager (Administration & Security)
have verified the authenticity of the record produced by them
from the two mobile companies Airtel and Essar, though exact
words as laid down in the law have not been used by them. I
find that this is sufficient compliance with the law, moreso
when there is no contrary evidence on record suggesting that
the computers were not used regularly or that the information
was not fed in the ordinary course of business. There is no
contrary evidence on the file that the record is inaccurate or
fabricated one. As far as the jumbled nature of the information
in Ex. PW-198/E is concerned, this may be due to technical
fault, but there is no evidence that the information recorded
therein has been tampered with. In the absence of any
evidence to the contrary, it is presumed that the machine was
operating in order at the relevant time.
367. It is also contended by Sh. R.M. Tufail, learned defence
counsel that Ex. PW-198/DA, which is mobile phone record of
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: 258 :
telephone number 9811242154, shows that police officials
were in touch with the accused before the incident inside Red
Fort. He also submitted that this copy was supplied to him by
the prosecution and that PW-198 Sh. Rajiv Pandit has not
denied it categorically to be of his company. However, I find
that call detail does not bear the signature of any official of the
company as other copies are bearing and PW-198 Sh. Rajiv
Pandit has not categorically owned it as he has accepted other
documents. Prosecution has categorically denied that
document was supplied by them to the accused. Defence has
not summoned any witness from the company to prove the
authenticity of this document. In view of the fact that this
document does not bear the signature of any official of the
company and that prosecution has denied that it was supplied
by them to the accused, I find that this document is of doubtful
origin and authenticity and no reliance can be placed on the
same.
(viii) DISCLOSURE STATEMENTS RECORDED BY POLICE :
368. It is submitted by the learned Special Public Prosecutor that
the disclosure statements recorded by the police during the
FIR No. 688/00, PS Kotwali
: 259 :
course of investigation can be used as evidence during trial in
the case of conspiracy. This proposition has been hotly
contested by the learned defence counsel for all the accused.
Now the question is : Whether the disclosure statements
recorded by the police during the course of investigation are of
any use ? Let me quote the relevant law in this regard.
369. Section 25 of Evidence Act lays down as under :-
“Confession to police officer not to be proved – No
confession made to a police officer shall be proved as
against a person accused of any offence.”
370. Section 26 of Evidence Act lays down as under :-
“ Confession by accused while in custody of police not to
be proved against him.- No confession made by any
person whilst he is in the custody of a police officer,
unless it be made in the immediate presence of a
Magistrate shall be proved as against such person.”
371. Section 27 of Evidence Act lays down as under :-
“How much of information received from accused may
be proved – Provided that, when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved.”
FIR No. 688/00, PS Kotwali
: 260 :
372. Section 30 of Evidence Act lays down as under :-
“ Consideration of proved confession affecting person
making it and others jointly under trial for same offence.
- When more persons than one are being tried jointly for
the same offence, and a confession made by one of such
persons affecting himself and some other of such persons
is proved, the Court may take into consideration such
confession as against such other person as well as against
the person who makes such confession.”
Explanation - “Offence” as used in this section, includes
the abetment of, or attempt to commit, the offence.”
373. Section 162 Cr.P.C. lays down as under :-
“Statement to police not to be signed : Use of
statements in evidence-----
(1) No statement made by any person to a police
officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any
record thereof, whether in a police diary or
otherwise, or any part of such statement or record, be
used for any purpose, save as hereinafter provided, at
any inquiry or trial in respect of any offence under
investigation at the time when such statement was
made ;
Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement
has been reduced into writing as aforesaid, any part
FIR No. 688/00, PS Kotwali
: 261 :
of his statement, if duly proved, may be used by the
accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act,
1872 (1 of 1872); and when any part of such
statement is so used, any part thereof may also be
used in the re-examination of such witness, but for
the purpose only of explaining any matter referred to
in his cross-examination.
(2) Nothing in this section shall be deemed to apply
to any statement falling within the provisions of
clause (1) of section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions of
section 27 of that Act. .....................”
374. Dealing with the question of confession made in police
custody in the course of investigation, Hon'ble Supreme Court
observed in paragraph 13 at page 605 in “Parliament Attack
Case (supra)' as under :-
“ we have noticed above that the confessions made
to a police officer and a confession made by any
person while he or she is in police custody cannot be
proved against that person accused of an offence. Of
course, a confession made in the immediate presence
of a Magistrate can be proved against him. So also
Section 162 Cr.P.C., bars the reception of any
FIR No. 688/00, PS Kotwali
: 262 :
statements made to a police office in the course of an
investigation as evidence against the accused person
at any enquiry or trial except to the extent that such
statements can be made use of by the accused to
contradict the witnesses. Such confessions are
excluded for the reason that there is a grave risk of
their statements being involuntary and false. Section
27, which unusually starts with a proviso, lifts the
ban against the admissibility of the
confession/statement made to the police to a limited
extent by allowing proof of information of specified
nature furnished by the accused in police custody. In
that sense Section 27 is considered to be an exception
to the rules embodied in Section 25 and 26 (vide
AIR 1962 SC 1116).”
375. Similarly in Kala Singh (Supra) the statement made at the
police station was used as evidence against co-accused, which
was held to be inadmissible in evidence. Accordingly, I am of
the opinion that statements made by the accused to the police in
the course of investigation cannot be used at all against the
accused as well as the co-accused even in case of conspiracy as
their use is barred by Section 25 & 26 Evidence Act as well as
Section 162 Cr.P.C. As such the submission of learned Spl.
Public Prosecutor in this regard is contrary to law. Such
FIR No. 688/00, PS Kotwali
: 263 :
statements can be used only to the extent of recovery u/s 27
Evidence Act, Section 32 Evidence Act and for contradicting a
witness u/s 145 of the Evidence Act. 'Any person' within the
provisions of Section 162 Cr.P.C, includes accused also.
(ix) CONTRADICTIONS & DISCREPANCIES :
376. It has been argued by all the learned defence counsel for all
the accused that there are material contradictions in the
testimony of the witnesses regarding timing of the registration
of the case, name and number of the police official who
constituted a particular police party, the type and number of
vehicle used by them, the places visited by them, the presence
of public at a particular place and the prayer if any made by the
police to them to join the proceedings, the dress of the police
officials i.e., whether they were in police uniform or civil
clothes, timing and contents of recoveries and similar other
contradictions and they render the prosecution version
unreliable and unbelievable. I have carefully perused the entire
evidence on record and I find that not even a single
contradiction, which is of such a fundamental nature as go to
the root of the matter so as to render the evidence of a
FIR No. 688/00, PS Kotwali
: 264 :
particular witness unreliable, has been pointed out to me. The
contradictions pointed out are of insignificant nature and are
quite natural in a situation where the case is of such a grave
nature and the evidence of the witnesses is quite lengthy and
they are subjected to lengthier cross-examination for several
days. In this regard, I would like to quote an authority reported
as S ukhdev Yadav & Ors. Vs. State of Bihar 2001 VII AD
(SC) 593 , wherein the following observations were made by
the Hon'ble Supreme Court :-
“It is indeed necessary however to note that
there would hardly be a witness whose
evidence does not contain some amount of
exaggeration or embellishment-sometimes
there would be a deliberate attempt to offer
the same and sometimes the witnesses in their
over anxiety to do better from the witness box
details out an exaggerated account. In
Appabhai and Anr. Vs. State of Gujarat
(1988 Suppl. SCC 241), this court in
paragraph 13 of the report observed :” “The
court while appreciating the evidence must
not attach undue importance to minor
discrepancies. The discrepancies which do
FIR No. 688/00, PS Kotwali
: 265 :
not shake the basic version of the prosecution
case may be discarded. The discrepancies
which are due to normal errors to perception
or observation should not be given
importance, The errors due to lapse of
memory may be given due allowance. The
court by calling into aid its vast experience of
men and matters in different cases must
evaluate the entire material on record by
excluding the exaggerated version given by
any witness. When a doubt arises in respect
of certain facts alleged by such facts, the
proper course is to ignore that fact only unless
it goes into the root of the matter so as to
demolish the entire prosecution story. The
witnesses now a days go on adding
embellishments to their version perhaps for
the fear of their testimony being rejected by
the court. The courts, however, should not
disbelieve the evidence of such witnesses
altogether if they are otherwise trustworthy.”
377. Similar observations were made in an authority reported as
State of Himachal Pradesh Vs. Lekh Raj, 2000 CRILJ 44,
wherein it was observed by Hon'ble Supreme Court in
paragraph 8 that :-
FIR No. 688/00, PS Kotwali
: 266 :
“................................ There is bound to be some
discrepancies between the narrations of different
witnesses when they speak on details and unless the
contradictions are of a material dimension, the same
should not be used to jettison the evidence in its
entirety. Incidentally, corroboration of evidence with
mathematical niceties cannot be expected in criminal
cases. Minor embellishment, there may be, but
variations by reason therefor should not render the
evidence of eye-witnesses unbelievable. Trivial
discrepancies ought not to obliterate an otherwise
acceptable evidence.
The court shall have to bear in mind that
different witnesses react differently under different
situations : Whereas some become speechless, some
start wailing while some others run away from the
scene and yet there are some who may come forward
with courage, conviction and belief that the wrong
should be remedied. As a matter of fact it depends
upon individuals and individuals. There cannot be any
set pattern or uniform rule of human reaction and to
discard a piece of evidence on the ground of his
reaction not falling within a set pattern is unproductive
and a pedantic exercise.”
378. Similarly in Jay Shree Yadav (Supra), Hon'ble Supreme
Court dealt with contradictions, omissions, improvements by a
FIR No. 688/00, PS Kotwali
: 267 :
witness during lengthy cross-examination and observed in para
20 as under :-
“.................. These shortcomings in the evidence of this
witness will have to be considered in the background of
the fact that this witness was subjected to nearly 217
questions over a period of 14 months i.e. his cross-
examination starting on 14.8.1994 and ending on
28.11.1995. Both the courts below have taken judicial
notice of this fact, not only in regard to this witness but
in regard to other witnesses also and have come to the
concurrent conclusion that when a witness is subjected to
such lengthy arduous cross-examination over a lengthy
period of time there is always a possibility of the
witnesses committing mistakes which can be termed as
omissions, improvements and contradictions therefore
those infirmities will have to be appreciated in the
background of ground realities which makes the witness
confused because of the filibustering tactics of the cross-
examining Counsel ...........”
379. One specific instance of contradiction about timing of
finding the slip Ex. 183/B containing telephone no.
9811278510 has been referred to me repeatedly. In this
regard, my attention has been invited to the cross-examination
of PW-183 SI Sanjay Kumar, PW-217 SI Naresh Kumar, PW-
234 Ins. Roop Lal and other witnesses. However, I may add
FIR No. 688/00, PS Kotwali
: 268 :
that the contradiction in the timing given by the different
witnesses about the finding of the aforesaid paper slip is not of
much importance as it itself is of no importance, but only
provided a clue about the culprits. The investigation against
the culprits reached fruition through the help of the number
written on the slip. Even otherwise, the version of different
witnesses regarding the finding of the slip is not much
contradictory as it was found in the early hours of the morning
of 23.12.2000 and on account of the winter season, these
witnesses might have deposed about timing as per their own
personal judgment of time without being mechanical.
380. Accordingly, I find no force in the submission of any of the
accused that there are material contradictions in the testimony
of any witness pertaining to his case, which would render a
particular witness unreliable or untruthful. The submission is
as such without merit.
(x) JOINING OF PUBLIC PERSONS :
381. It is next submitted that at the time of recovery or recording
of disclosure statement of any of accused, no public person has
been joined. It is submitted for all the accused that in such a
FIR No. 688/00, PS Kotwali
: 269 :
case, neither the disclosure made by the accused, nor the
recovery if any effected consequent thereto without the
presence of public persons is reliable and admissible.
However, I find that though no public person was joined during
the recording of any of the disclosure statement, but there is
evidence in the statement of PW-173 Ins. Ved Parkash and
PW-148 Zile Singh who conducted the proceedings at 308-A,
DDA Flats, Gazhipur, Delhi, at the time of arrest of the accused
as well as PW-228 Ins. Hawa Singh, PW-218 SI Satyajeet
Sareen and PW-227 SI Amardeep Sehgal, who conducted the
recovery proceedings behind Red Fort that they had tried to
join the public persons, but none was willing. However, PW-
202 Sh. N.B. Bardhan and PW-125 Sh. S.K. Chadha, both
officials of CFSL had visited the recovery site and they have
also deposed that the weapons were recovered in the manner
stated by the prosecution. These two officials cannot have any
motive, even remotely, to depose about false recovery. At the
time of recovery at Jamia Milia Islamia University, two public
witnesses PW-208 Sh. Devender Kumar and PW-209 Sh.
Raghubir Singh were present. In these circumstances, it
FIR No. 688/00, PS Kotwali
: 270 :
cannot be said that police did not make any effort whatever to
join the public persons in the proceedings. Moreover, it is a
common knowledge that members of public are not willing to
join the proceedings in such cases as they wish to keep away
from the police as well as the courts as that may put them into
unnecessary trouble, moreso when a terrorist is involved in an
incident of such a grave magnitude. Moreover, there is no
legal requirement that in all cases public persons must be
joined by the police in their proceedings. It is just by way of
caution and prudence only that police tries to join public
person in their proceedings to give the same more credence and
credibility. If the testimony of the police officials is otherwise
reliable, the same cannot be discarded for the simple reason
that public persons were not joined in the proceedings. In this
regard, I am fortified by an authority reported as State Govt.
of NCT of Delhi Vs. Sunil & Anr. 2000 VIII AD(SC) 613,
wherein while dealing with recoveries pursuant to Section 27
of Evidence Act, Hon'ble Supreme Court made the following
observations :-
“(20). Hence it is a fallacious impression that
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: 271 :
when recovery is effected pursuant to any
statement made by the accused the document
prepared by the Investigating Officer
contemporaneous with such recovery must
necessarily be attested by independent
witnesses. Of course, if any such statement
leads to recovery of any article it is open to
the Investigating Officer to take the signature
of any person present at that time, on the
document prepared for such recovery. But if
no witness was present or if no person had
agreed to affix his signature on the document,
it is difficult to lay down as a proposition of
law, that the document so prepared by the
police office must be treated as tainted and
the recovery evidence unreliable. The court
has to consider the evidence of the
Investigating Officer who deposed to the fact
of recovery based on the statement elicited
from the accused on its own worth.”
(21). We feel that it is an archaic notion that
actions of the police officer should be
approached with initial distrust. We are
aware that such a notion was lavishly
entertained during British period and
FIR No. 688/00, PS Kotwali
: 272 :
policemen also knew about it. Its hang over
persisted during post-independent years, but it
is time now to start placing at least initial trust
on the actions and the documents made by the
police. At any rate, the court cannot start
with the presumption that the police records
are untrustworthy. As a proposition of law
the presumption should be the other way
around. That official acts of the police have
been regularly performed is a wise principle
of presumption and recognized even by the
legislature. Hence when a police officer gives
evidence in court that a certain article was
recovered by him on the strength of the
statement made by the accused it is open to
the court to believe the version to be correct if
it is not otherwise shown to be unreliable. It
is for the accused, through cross-examination
of witnesses or through any other materials,
to show that the evidence of the police officer
is either unreliable or at lease unsafe to be
acted upon in a particular case. If the court
has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the
fact that no other independent person was
present at the time of recovery. But it is not a
FIR No. 688/00, PS Kotwali
: 273 :
legally approvable procedure to presume the
police action as unreliable to start with, nor to
jettison such action merely for the reason that
the police did not collect signatures of
independent persons in the documents made
contemporaneous with such actions.”
382. Similar observation were made in an authority reported as
Ambika Prasad & Anr. Vs. State (Delhi Administration,
Delhi) 2001 AD (S.C.) 141, wherein it was observed by the
Hon'ble Supreme Court in paragraph 12 that :-
''12. It is next contended that despite the fact that 20
to 25 persons collected at the spot at the time of
incident as deposed by the prosecution witnesses, not
a single independent witness has been examined and,
therefore, no reliance should be placed on the
evidence of PW-5 and PW-7. This submission also
deserves to be rejected. It is known fact that
independent persons reluctant to be a witness or to
assist the investigation. Reasons are not far to seek.
Firstly, in case where injured witnesses or the close
relative of the deceased are under constant threat and
they dare not depose truth before the court,
independent witnesses believe that their safety is not
guaranteed. That belief cannot be said to be without
FIR No. 688/00, PS Kotwali
: 274 :
any substance. Other reason may be the delay in
recording the evidence of independent witnesses and
repeated adjournments in the court. In any case, if
independent persons are not willing to cooperate with
the investigation, prosecution cannot be blamed and
it cannot be a ground for rejecting the evidence of
injured witnesses. Dealing with similar contention in
State of UP Vs. Anil Singh (supra) this Court
observed :-
“In some cases, the entire prosecution case is
doubted for not examining all witnesses to the
occurrence. We have recently pointed out the
indifferent attitude of the public in the investigation
of crimes. The public are generally reluctant to come
forward to depose before the Court. It is, therefore,
not correct to reject the prosecution version only on
the ground that all witnesses to the occurrence have
not been examined. Nor it is proper to reject the case
for want of corroboration by independent witnesses if
the case made out is otherwise true and acceptable. “
(xi) DELAY IN ARREST AND RECOVERY :
383. It is next submitted for accused Babar Mohsin, Devender
Singh, Shahanshah Alam and Rajiv Malhotra that disclosure
statement of accused Md. Arif @ Ashfaq was recorded on
FIR No. 688/00, PS Kotwali
: 275 :
30.12.2000, but the first three were arrested only on
04.01.2001 and Rajiv Malhotra was arrested on 07.01.2001.
Accused Matloob was arrested on 13.04.2001 in FIR No.
688/00 and on 09.05.2001 in FIR No. 65/01, accused Mool
Chand Sharma was arrested on 18.04.2001, Sadakat Ali was
arrested on 22.12.2001 and accused Nazir Ahmad Quasid and
Farukh Ahmad Quasid were arrested formally on 29.03.2001.
It is submitted for all the accused if there was strong enough
evidence against these accused, the police ought to have
arrested them immediately after Md. Arif @ Ashfaq made his
disclosure statement on 30.12.2000, but police waited for long
time without any sufficient reason and this shows that they
have been arrested without any reason. It has been submitted
by all the learned defence counsel, particularly Sh. I.U. Khan,
learned defence counsel for accused Babar Mohsin that this
delay is fatal to the case of the prosecution and the recovery
effected belatedly is of no consequence.
FIR No. 688/00, PS Kotwali
: 276 :
384. This argument has been refuted by Sh. Bakshish Singh,
learned Special Public Prosecutor on that ground that there
was no delay in the arrest of the accused and accused were
arrested as and when evidence came on the file against them.
385. I find that accused Md. Arif @ Ashfaq made disclosure
statement Ex. PW-28/A on 30.12.2000 in which accused Babar
was named and name of the driving college was also disclosed.
In these circumstances, accused Babar ought to have been
arrested immediately and his house searched. But he was
arrested only on 04.01.2001 and letter Ex. PW-10/C and his
motor-cycle were seized only on 07.01.2001. As such, I find
that there is some delay in the arrest of the accused and the
recoveries effected from him. However, regarding the arrest of
the accused Mool Chand Sharma and Matloob, it is submitted
that report of the handwriting expert was awaited and accused
Nazir Ahmad Quasid and Farukh Ahmad Quasid were detained
in Kot Bhalwal Jail at Jammu & Kashmir. It would have been
better if they were also formally arrested a little earlier, when
their bank accounts were traced and PW-173 Ins. Ved Parkash
had collected the details of the accounts on 30.12.2000 itself.
FIR No. 688/00, PS Kotwali
: 277 :
For accused Sadakat Ali, it is submitted that he was arrested
when the evidence came against him in the statement of PW-
225 Md. Ahmad. As far as, accused Rajiv Malhotra, Devender
and Shahanshah Alam are concerned, their arrest is not much
delayed as to require any explanation considering the nature of
the case and the type of allegations against them. Even if,
some mistake is committed in delaying the arrest of the
accused, that itself does not wipe out the merit of the arrest and
recoveries effected. The mistakes committed by the
Investigating Officer during investigation either deliberately or
inadvertently do not go to the benefit of the accused, if
otherwise there is evidence against him. In this regard, I would
like to quote Ambika Prasad (Supra), wherein it was
observed by the Hon'ble Supreme Court in paragraphs 8 and 9
that :-
“8. .........The High Court has also observed that
reason for non-appearance of investigating officer
is not far to seek and obviously he was trying to
help the accused. The High Court further stated
that prosecution case cannot be allowed to suffer
at the hands of the investigating officer or agencies
and investigating officer cannot be permitted to
FIR No. 688/00, PS Kotwali
: 278 :
hold the prosecution to ransom by his deliberate
acts. Dealing with a case of negligence on the part
of the investigating officer, this court in Karnel
Singh Vs. State of MP [(1995) 5 SCC 518]
observed that in a case of defective investigation it
would not be proper to acquit the accused if the
case is otherwise established conclusively because
in that event it would tantamount to be falling in
the hands of erring investigating officer.
Similarly, in Ram Bihar Yadav Vs. State of
Bihar, 1998 (4) AD SC 154 = (1998) 4 SCC 517
para 13) this court observed:- “In such cases, the
story of the prosecution will have to be examined
de-hors such omissions and contaminated conduct
of the officials otherwise the mischief which was
deliberately done would be perpetuated and justice
would be denied to be complainant party and this
would obviously shake the confidence of the
people not merely in the law-enforcing agency but
also in the administration of justice.”
“Para 9. Further in Paras Yadav and others Vs.
State of Bihar, 1999 (1) AD (SC) 28 = (1999) 2
SCC 126, this court held,
“It may be that such lapse is committed
designedly or because of negligence. Hence the
prosecution evidence is required to be examined
FIR No. 688/00, PS Kotwali
: 279 :
de-hors such omissions to find out whether the
said evidence is reliable or not.”
386. Similar observations were made in an authority reported as
Dhanaj Singh V. State of Punjab AIR 2004 SC 192,
Wherein, Hon'ble Supreme Court dealt with the cases of faulty
investigation and observed in paragraphs 5 and 6 that :-
“5. In the case of a defective investigation the Court
has to be circumspect in evaluating the evidence. But
it would not be right in acquitting an accused person
solely on account of the defect ; to do so would
tantamount to playing into the hand of the
Investigating Officer if the investigation is
designedly defective. (See Karnel Singh V. State of
M.P. (1995 (5) SCC 518)
6. In Paras Yadav and others V. State of Bihar
(1999 (2) SCC 126) it was held that if the lapse or
omission is committed by the investigation agency or
because of negligence the prosecution evidence is
required to be examined dehors such omissions to
find out whether the said evidence is reliable or not.
The contaminated conduct of officials should not
stand on the way of evaluating the evidence by the
Court; otherwise the designed mischief would be
perpetuated and justice would be denied to the
complainant party.”
FIR No. 688/00, PS Kotwali
: 280 :
(xii) EVIDENCE OBTAINED ILLEGALLY :
387. It is next submitted for all the accused that they have been
arrested illegally and the evidence has been obtained against
them by illegal means particularly against accused Md. Arif @
Ashfaq and Rehmana Yusuf Farukhi. Sh. R.M. Tufail,
learned defence counsel has particularly referred accused
Rehmana Yusuf Farukhi and submitted that she was not
searched by a woman police officer. In this regard, he has
referred to the testimony of PW-69 Lady Ct. Sunita. It is
submitted by him that she was not personally searched by lady
constable and this renders her search and detention illegal.
Accused Md. Arif @ Ashfaq was tortured in police custody
and was forced to make illegal disclosure. However, it is clear
from the testimony of PW-69 Lady Ct. Sunita that she carried
out personal search of accused Rehmana Yusuf Farukhi at the
time of her arrest and in her cross-examination, there is nothing
of any significance, which could discredit her testimony.
Similarly, there is no evidence of torture against accused Md.
Arif @ Ashfaq . Even if there is some torture or illegality
committed by the police officials in the course of investigation,
FIR No. 688/00, PS Kotwali
: 281 :
the same does not render the evidence inadmissible. In this
regard, I would like to quote paragraphs 252 and 253 from the
judgment of Hon'ble High Court in “Parliament Attack Case
(supra)” as under :-
Para 252. In Re: Nagarmal Janakiram Agarwal, AIR
1941 Nagpur 338, Pollock, J. held that “even if the arrest
was illegal, the qeustion whether the arrest was valid or not
would not affect the question whether the accused was
guilty or not.”
Para 253. In AIR 1994 P.C. 73, Prabhu Vs. Emperor, the
Privy Council held that validity of trial and conviction was
not affected by irregularity in arrest. The Supreme Court
followed this in AIR 1955 SC 196, H.N. Rishbud Vs.
State of Delhi, and held that illegality in investigation
cannot result in setting aside the trial unless it can be shown
that it has brought about a miscarriage of justice. In 1974
(2) SCR 704, Pooran Vs. Director of Inspection, the
Supreme Court held that relevant evidence cannot be
excluded merely on the ground that it was obtained illegally
“where the test of admissibility of evidence lies in
relevancy unless there is an express or implied prohibition
in the Constitution or other law, evidence obtained as a
result of illegal search or seizure is not liable to be shut
out.”
(xiii) ORIGIN OF THE CASE :
FIR No. 688/00, PS Kotwali
: 282 :
388. It is next submitted that the very origin of the case is
shrouded in mystery as immediately after the incident, Army
authorities did not allow the police to enter the Red Fort. It is
submitted by Sh. R.M. Tufail, learned defence counsel that the
incident inside Red Fort was the handiwork of some insiders
when jawans fought amongst themselves in drunken condition.
In this regard, he has referred to wireless message Ex. PW-
77/A, wherein PCR officials reported back to the PCR that they
were not being allowed to enter the Red Fort. However, this
submission is without merit as PW-189 Capt. S.P. Patvardhan,
who had lodged the FIR with the police vide his statement Ex.
PW-189/A, has deposed that he had ordered the gate of the Red
Fort to be closed. In the cross-examination, he denied the
suggestion that civil police was not allowed to enter the Red
Fort or to investigate the matter. He has also deposed that
police was informed about the incident and Ins. Roop Lal with
staff reached there. This fact has been corroborated by PW-
234 Ins. Roop Lal as well as PW-137 SI Rajinder Singh, who
reached the spot first of all on receipt of information vide DD
no. 19-A, Ex. PW-15/B with PW-54 Ct. Jitender. As far as the
FIR No. 688/00, PS Kotwali
: 283 :
submission that the incident took place when the Army jawans
fired upon each other in drunken condition is concerned, same
is also without merit as no such suggestion has been put to PW-
115 Subedar Ashok Kumar, PW-122 Naik Suresh Kumar and
PW-131 Subedar D.N. Singh, who reached the spot
immediately on hearing the gun sound. Similarly, no such
suggestion was put to PW-144 Major D.K. Singh and PW-126
Major Manish Nagpal, who were members of the Quick
Reaction Team of the Army, and fired in retaliation on the
assailants. Similarly, there is no such suggestion to PW-189
Capt. S.P. Patvardhan who reached the spot almost
immediately as he was working as Adjutant to the 7th Raj Rifles
and also lodged the FIR. There is no material on the file to
suggest that the incident occured when the Army jawans fought
amongst themselves. However, the news report Ex. PW-87/A
mentions that intelligence official are not ruling out the
possibility of it being an insider's job. But there is no material
on the file to suggest such a thing.
389. It is next submitted by Sh. R.M. Tufail, learned defence
counsel that the prosecution version of the incident, further
FIR No. 688/00, PS Kotwali
: 284 :
become doubtful as the members of the police guard posted at
the Museum were not examined as witness. However, the
incident took place at about 9.00 pm in the month of
December. There are no allegations that the museum was
infact attacked by the intruders, but as per the statement Ex.
PW-189/A, given by Capt. S.P. Patwardhan, on which the
instant case was registered, it is mentioned that intruders had
fired in the direction of police guard. When the incident took
place in the dark in a wintry night and no damage was caused
to the police guard, it would not have been of any use to
examine the police personal posted there as witness. The
submission is as such, without merit.
390. A contention was also raised that there is confusion as to
when the hand-grenades were got destroyed by the police. In
this regard my attention has been invited to the testimony of
PW-85 SI Girish Jain and PW-214 Ins. Sunder Lal. I do find
that there is some misunderstanding regarding the date of
destruction of hand-grenades, but that itself does not wipe out
the recovery effected at the instance of accused Md. Arif @
Ashfaq.
FIR No. 688/00, PS Kotwali
: 285 :
(xiv) FIR FABRICATED & ANTE TIMED :
391. It is also submitted that the FIR has been forged and ante
timed as Army authorities had not allowed the police officials
to enter Red Fort for two days. In support of this submission
my attention has been invited to the testimony of PW-15 HC
Virender Kumar, who was posted as duty officer at Police
Station, Kotwali on 22.12.2000 and recorded the FIR Ex. PW-
15/E. In this regard, my attention has been invited to the
authority of Ahmad Gulam Nabi Sheikh (Supra), to
emphasize the fact that FIR does not bear the signature of the
informant. PW-15 HC Virender Kumar admitted that there are
some overwriting in the concerned DD entry. But I have
already held that the police officials reached the spot
immediately after the incident and action was taken
immediately after recording the statement Ex. PW-189/A of
Capt. S.P. Patwardhan, which bears his signature with
designation. As such there was no question of the FIR being
ante-timed and fabricated in such a manner as to give an
entirely new twist to the incident. The submission as such is
without merit.
FIR No. 688/00, PS Kotwali
: 286 :
(xv) ROLE OF LASHKAR-E-TOIBA :
392.Now the question is : Whether the attack was launched by
Lashkar-e-Toiba ? It is submitted on behalf of the State that
the attack was planned, organized and launched at the instance
of Lashkar-e-Toiba. It is also submitted that this organization
is engaged in promoting and sponsoring terrorism against
India. This attack was also a result of the unlawful designs of
Lashkar-e-Toiba for spreading terrorism and creating instability
in India, so as to destroy the democratic and secular fabric of
the country and to separate Jammu & Kashmir from India. It is
submitted that accused Md. Arif @ Ashfaq, Nazir Ahmad
Quasid and Farukh Ahmad Quasid are members of Lashkar-e-
Toiba and they were party to the conspiracy to launch terrorist
strike inside Red Fort. However, learned defence counsel has
denied that they are members of Lashkar-e-Toiba or any other
such organization.
393. I find that PW-39 Sh. Altaf Hussain, BBC Correspondent,
Sri Nagar, has deposed that he received a telephonic call at Sri
Nagar at his residence claiming that the attack on the Red Fort
was launched by Lashkar-e-Toiba. The call was received by
FIR No. 688/00, PS Kotwali
: 287 :
him in the evening on telephone number 2452918. As per
mobile phone record Ex. PW-198/B-1 to 3 of mobile phone
number 9811278510, a call was made to this telephone
number at 21.27.30 hrs. This means that the call was made
almost immediately after the incident.
394.Similarly, PW-41 Sh. Ayanjit Sen, an employee of BBC
office, Delhi, has deposed that on 22.12.2000 at about 9.00 to
9.30 pm, a call was received on telephone number 3355751 in
Delhi office of BBC that the attack on the Army camp inside
the Red Fort was launched by Lashkar-e-Toiba. Similar
statement was made by PW-150 Sh. Satish Jacab. As per call
detail Ex. PW-198/B-1 to 3 of the aforesaid mobile telephone
number 9811278510, calls were made to Delhi BBC office on
telephone no. 3355751 at 21.25.25, 21.33.14 and 21.33.45
hours. PW-230 IO Ins. Surender Kumar Sund has also
deposed that attack on Red Fort was launched by Lashkar-e-
Toiba. PW-87 Sh. A.K. Roy of Hindustan Times Newspaper
has also proved a News item Ex. PW-87/A of 23.12.2000,
wherein it is claimed that the attack was launched by Lashkar-
e-Toiba.
FIR No. 688/00, PS Kotwali
: 288 :
395. PW-162 Sh. J.S. Chauhan and PW-175 Ct. Suresh have
deposed that on 26.12.2000 they were on duty in Rajouri,
Jammu & Kashmir and on that day a message was being
transmitted by a militant Abu Shakur of Lashkar-e-Toiba from
Kashmir to Pak occupied Kashmir that the militant wanted in
shoot-out inside Red Fort namely Abu Hamad Hazarvi whose
real name is Ashfaq has been apprehended and Abu Shamal has
been killed whereas Bilal Babbar was successful in running
away. In the cross-examination of these witnesses, there is
nothing of any significance, which could discredit their
testimony about the message being passed by Lashkar-e-
Toiba. All the four persons mentioned in the message are
accused in the present case. There is no contrary evidence to
the effect that Lashkar-e-Toiba was not involved in the
incident. Accordingly, I find that the incident was planned and
carried out by Lashkar-e-Toiba.
396. Now the question is as to which of the accused are connected
with the Lashkar-e-Toiba ? Sh. Bakshish Singh, learned
Special Public Prosecutor submitted that accused Md. Arif @
Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad Quasid are
FIR No. 688/00, PS Kotwali
: 289 :
members of Lashkar-e-Toiba and they are also highly placed
office bearers of the organization. It is submitted that accused
Md. Arif @ Ashfaq along with Abu Bilal (since killed), Abu
Haider, Abu Saad, Abu Shamal (since killed) and Abu Shakur,
all members of Lashkar-e-Toiba, carried out the actual shoot-
out inside the Red Fort, whereas accused Abu Suffian, (since
killed) Jahur Ahmad Quasid and Bilal Ahmad Kawa were
involved at the planning stage and they are also members of
Lashkar-e-Toiba. Abu Suffian since killed, was Distt.
Commander, Sri Nagar. Accused Sabir @ Sabarulla, Sher
Zaman and Attruddin (all three since P.O.) were also involved
in planning and financing of the attack. The membership of
Lashkar-e-Toiba of accused Md. Arif @ Ashfaq , Nazir Ahmad
Quasid and Farukh Ahmad Quasid is disputed by the learned
defence counsel.
(xvi) MOBILE PHONE :
397. Before disposing this point, I wish to dispose of the point as
to whether accused Md. Arif @ Ashfaq was in possession of
any mobile phone ? Learned Special Public Prosecutor has
submitted that accused Md. Arif @ Ashfaq used three mobile
FIR No. 688/00, PS Kotwali
: 290 :
numbers 9810263721, 981242154 and 9811278510. It is
submitted that mobile phone bearing number 9811278510 was
recovered from the accused at the time of his arrest. This is
disputed by the learned defence counsel Sh. R.M. Tufail, who
submitted that accused Md. Arif @ Ashfaq never used any
mobile telephone and this mobile phone was falsely planted
upon him by the police.
398. However, the record suggests that accused was in
possession and use of a mobile telephone. PW-37 Amir Irfan
Mansoori who was staying in the house of PW-20 Nain Singh,
has deposed that Ashfaq also came to stay in the said house in
the month of May 2000 and he was having a mobile phone with
him. It is the admitted case of accused Md. Arif @ Ashfaq that
he stayed at the house of PW-20 Nain Singh, when he entered
India via Nepal. Similarly, PW-56 Sh. Faisal Mohd. Khan,
with whom accused Md. Arif @ Ashfaq opened computer
center under the name and style of “Knowledge Plus” also
deposed that he was having mobile phone. He was also a
tenant at the house of PW-20 Nain Singh with Md. Arif @
Ashfaq . Similarly, PW-232 Sh. Rashid Ali, who was also a
FIR No. 688/00, PS Kotwali
: 291 :
tenant at the house of PW-20 Nain Singh and was also a friend
of Md. Arif @ Ashfaq and he also attended his marriage with
Rehmana Yusuf Farukhi on 08.12.2000, deposed that he was
having a mobile phone with him. The evidence of PW-232 Sh.
Rashid Ali has gone unchallenged as he was not cross-
examined. In the cross-examination of PW-37 Amir Irfan
Mansoori and PW-56 Faisal Mohd. Khan, there is no evidence
to suggest that Md. Arif @ Ashfaq was not having mobile
phone.
399. PW-210 Sh. Sushil Malhotra, owner of Seven Star Motor
Driving College, where accused Devender was manager and
from where accused Md. Arif @ Ashfaq obtained driving
training, proved the register Ex. PW-210/A and the entry Ex.
PW-210/B, where name of the Md. Arif @ Ashfaq is recorded
as M.A. Khan. Similarly in booklet Ex. PW-28/H, there is
entry Ex. PW-28/I which was recorded when accused Md. Arif
@ Ashfaq came to the training college for obtaining training
and got his name and address recorded. This booklet was
seized from the college in the presence of PW-28 SI
Abhinendra Jain. There accused Md. Arif @ Ashfaq got his
FIR No. 688/00, PS Kotwali
: 292 :
mobile number recorded as 9810263721.
400. PW-194 SI Harender Singh has deposed that at the time of
his arrest, mobile telephone number 9811278510 was
recovered from him. This has been corroborated by PW-148
SI Zile Singh and PW-173 Ins. Ved Parkash. This telephone
was seized vide Ex. PW-148/C. The IMEI number of the
instrument was 449173405451240. As per the letter Ex. PW-
198/D of Essar Cellphone, this mobile number as well as
9811242154 were also used on instrument with IMEI No.
445199440940240.
401. Learned defence counsel Sh. R.M. Tufail has submitted that
recovery of this mobile phone cannot be accepted as it was not
seized by the police when the accused was initially arrested by
PW-173 Ins. Ved Parkash. This recovery was effected by PW-
194 SI Harender Singh in the presence of PW-148 SI Zile
Singh. However, the weight of the evidence is so much that
some discrepancies here and there in the course of investigation
cannot render the recovery of the mobile set from the accused
unbelievable. In view of the above evidence, I hold that
accused Md. Arif @ Ashfaq was in possession and use three
FIR No. 688/00, PS Kotwali
: 293 :
mobile numbers 9810263721, 981242154 and 9811278510 at
different times.
(xvii) BANK ACCOUNTS :
402. Now, I take up the question of bank accounts of accused
Rehmana Yusuf Farukhi, Md. Arif @ Ashfaq , Nazir @ Sons,
Bilal Ahmad Kawa and Farukh Ahmad Quasid. Rehmana
Yusuf Farukhi has admitted in her statement recorded u/s 313
Cr.P.C., vide question no. 10 that bank account no. 5817, in
State Bank of India, Gazhipur Branch, Delhi, belongs to her
and the money therein was deposited by her, which was given
by her relatives. Accused Md. Arif @ Ashfaq has also
admitted in his statement u/s 313 Cr.P.C., vide question no. 37
that account no. 0891000024344 opened in HDFC Bank, New
Friends Colony, belongs to him.
403. However, it is submitted that accounts no. 32263962 of
M/s Nazir Sons, 28552609 of Mr. Bilal Ahmad Kawa and
32181669 of Farookh Ahmad Quasid, in Standard Chartered
Grindleys Bank, Sri Nagar do not belong to accused Nazir
Ahmad Quasid and Farukh Ahmad Quasid. These accounts
were opened during the tenure of PW-97 Sh. B.A. Vani as
FIR No. 688/00, PS Kotwali
: 294 :
Branch Manager. It is submitted by Sh. Aman Lekhi, learned
defence counsel that original account opening forms have not
been placed on record, the accused were not residing at the
given address at the relevant times and mere entries in the
accounts do not prove the transactions therein. In this regard,
the authority of Chandradhar Goswami (Supra) has been
referred to. Both accused have denied vide question no. 143 in
their statement u/s 313 Cr.P.C, that the aforesaid bank accounts
belong to them.
404. As far as the submission that original account opening forms
have not been produced in the court is concerned, same is
without merit as PW-97 Sh. B.A. Vani deposed that these
accounts were opened during his tenure as branch manager.
PW-228 ACP Hawa Singh deposed that he went to the bank at
Sri Nagar on 09.03.2001 and he was informed that original
account opening forms have been seized by the local police in
FIR No. 2/2001. As far as the fact that accused were not
residing at the given address is concerned, the same is also
without merit as the accused have given their address in their
statements recorded u/s 313 Cr.P.C as that of Bagat Kanipura,
FIR No. 688/00, PS Kotwali
: 295 :
Sri Nagar and have not specified their house number.
However, one thing is common that telephone number 436188
is installed at their residence and a call was made from mobile
number 9810263721, which once belonged to Md. Arif @
Ashfaq as held above on 16.01.2000 and the accused Nazir
Ahmad Quasid and Farukh Ahmad Quasid have admitted that
this telephone belongs to them and during the trial of the case
they continued making telephone calls to this telephone number
after obtaining court permission as is mentioned in various
applications filed by them. As such the plea that the accused
were not residing at the given address mentioned in the bank
records is contrary to the record.
405. As far as the plea that the transactions in the account have not
been proved as per law is concerned, same is also without
merit. In this case, the forty cheques Exs. PW-97/P-1 to P-40
drawn on the three accounts by the three accused have been
proved as per law. Similarly, PW-27 Sh. Subhash Gupta has
proved nine deposit slips Ex. PW-27/1 to 9 vide which Rs.
29,50,000/- were deposited in the three accounts. These
deposit slips are in the handwriting of accused Md. Arif @
FIR No. 688/00, PS Kotwali
: 296 :
Ashfaq as per the statement of PW-216 Dr. M.A. Ali. As
such, in these accounts the deposit and withdrawal of money
has been clearly proved by the witnesses and it cannot be said
that the transactions have not been proved as per law. In
Chandradhar Goswami (Supra) , the question was entirely
different. The question involved was recovery of Rs. 40,000/-
given as loan. Here the question is not recovery of any money,
but the question of determination of the link between accused
Md. Arif @ Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad
Quasid. I accordingly, hold that the aforesaid three accounts
belong to Nazir Ahmad Quasid, Farukh Ahmad Quasid and
Bilal Ahmad Kawa and Md. Arif @ Ashfaq deposited money
in these three accounts vide Exs. PW-27/1 to 9. This fact is
further strengthened by the fact that prosecution has alleged
that accused Md. Arif @ Ashfaq used to collect Hawala
money from Delhi and the same was transferred to the militants
of Lashkar-e-Toiba at Sri Nagar including Nazir Ahmad
Quasid, Farukh Ahmad Quasid and Bilal Ahmad Kawa (P.O.).
Accused Md. Arif @ Ashfaq had admitted in his statement u/s
313 Cr.P.C., at page 153 that one Sardarji in Karol Bagh was
FIR No. 688/00, PS Kotwali
: 297 :
engaged in the business of money lending and he used to
collect the same, though he claimed that it was collected for
PW-20 Nain Singh, which fact is not borne out of the record.
Both the accused have claimed in their statements u/s 313
Cr.P.C, that these accounts do not belong to them and they do
not have any bank account. This clearly shows that the accused
are concealing the facts and are attempting to disown the
documentary evidence available on the file against them. I,
accordingly, hold that the aforesaid three accounts belong to
the accused including Bilal Ahmad Kawa (P.O.) and money
was used to be transferred by Md. Arif @ Ashfaq from Delhi
and it used to be distributed to various militants by the accused.
406. Mobile telephone number 9811278510 was recovered from
the possession of accused Md. Arif @ Ashfaq . As per call
detail Ex. PW-198/B-1 to B-3, calls were made from this
number to several other numbers on the date of incident as well
as before that and in view of the fact that it was recovered from
the accused Md. Arif @ Ashfaq and he was always in use and
possession of a mobile phone. As per Ex. PW-195/B, a call
was made from telephone no. 9810263721 to the telephone
FIR No. 688/00, PS Kotwali
: 298 :
number 436188 at Sri Nagar. These telephones belong to Md.
Arif @ Ashfaq and Nazir Ahmad Quasid and Farukh Ahmad
Quasid.
407. The telephonic connection as well as the amount of money
transferred and distributed by the accused suggest that they are
closely connected and when they are closely connected, in view
of the evidence discussed above, they are also members of
Lashkar-e-Toiba.
408. This shows that the three accused are intimately connected,
otherwise Md. Arif @ Ashfaq would not transfer such a huge
amount in their account, which was later on distributed by them
to various militants vide cheques Exs. PW-97/P-1 to P-40.
(xviii) JOINT TRIAL :
409. It has also been submitted on behalf of all the accused that
their joint trial has prejudiced all of them as they have been
implicated under the same charge of conspiracy. The accused
have not been able to put up their defence properly. However,
no specific instance of any of the accused being specifically
prejudiced and handicapped in defending himself has been
brought to my notice. The submission is vague and imprecise.
FIR No. 688/00, PS Kotwali
: 299 :
The cases have been clubbed together as they pertain to the
same incident and a large number of witnesses are common in
all the cases and as such the joint trial has rather facilitated the
trial of the case.
410. Now I shall take up the case of each accused separately.
411. First the recoveries effected at the instance of accused Md.
Arif. First, I shall take the recovery from G-73, Muradi Road.
Accused was arrested on 26.12.2000 at 12.40 am and made a
disclosure statement Ex. PW-148/C regarding his hideout at G-
73, Muradi Road, Okhla, Delhi. Accordingly, a police party
with PW-229 Ins. Mohan Chand Sharma and his staff with
accused Md. Arif @ Ashfaq in their custody went to the
aforesaid address from 308-A, DDA Flats, Gazhi Pur, Delhi.
Since the house was locked, the police party waited there and at
about 5.00 am, a man was seen entering the aforesaid house.
Thereafter, the police party knocked at the door of the house,
but the door was not opened. The man inside the house, fired
at the police party, which led to an encounter, in which the
aforesaid person, who was later on identified by accused Md.
Arif @ Ashfaq as his associate Abu Shamal, was killed. From
FIR No. 688/00, PS Kotwali
: 300 :
the aforesaid hideout, one AK-56 rifle Ex. PW-229/1, two
magazines Exs. PW-229/2 and 3, two hand-grenades (since
destroyed through PW-193 Major Sanjay Kumar Shukla)
remnants of which are now Ex. PW-229/4, one bandoleer Ex.
PW-229/5, a military pouch Ex. PW-229/6 and cleaning
material of the weapon Ex. PW-229/7 and these were seized
vide seizure memo Ex. PW-229/D. A khakhi uniform Ex.
PW-229/8 was also seized vide memo Ex. PW-229/E. Apart
from the above, fired cases, empties and thirty live rounds were
also recovered. On this, FIR No. 630/00, Police Station New
Friends Colony, which has since been closed. PW-229 Ins.
Mohan Chand Sharma is the main witness in this case and he
has not been cross-examined by the accused. As such his
version, which apparently is very reasonable and credible, has
gone unchallenged and his evidence has to be accepted at face
value.
412. Now, I shall deal with the recovery effected from behind
the Red Fort on 26.12.2000 consequent to the disclosure of
accused Md. Arif @ Ashfaq . Accused was arrested on
26.12.2000 at about 12.40 am and thereafter his disclosure
FIR No. 688/00, PS Kotwali
: 301 :
statement Ex. PW-148/E was recorded, wherein he offered to
get weapons recovered from behind the Red Fort.
Accordingly, IO PW-228 Ins. Hawa Singh, PW-218 SI
Satyajeet Sareen and PW-227 SI Amardeep Sehgal went to the
spot and recovered one rifle Ex. PW-125/1, two magazines Ex.
PW-125/2 & 3 with thirty-two live cartridges Ex. PW-125/4 to
35, kitchen knife Ex. PW-125/36, one bandoleer Ex. PW-
218/1, four hand-grenades with detonators (since destroyed)
Exs. PW-50/1 to 4 and detonators Ex. PW-50/5 to 8, vide
memo Ex. PW-125/A.
413. Now the recovery effected from Jamia Milia Islamia
University on 01.01.2001 consequent to the disclosure
statement Ex. PW-168/D made by accused Md. Arif @ Ashfaq.
Vide this disclosure statement the accused offered to get hand-
grenades recovered from Jamia Milia University. Accordingly,
PW-168 Ins. R.S. Bhasin along with staff took the accused to
the spot. There, he joined PW-208 Sh. Devender Kumar a
public person, PW-209 Sh. Raghubir Singh, Security guard of
University and other police officials in the recovery
proceedings. From there accused Md. Arif @ Ashfaq got
FIR No. 688/00, PS Kotwali
: 302 :
recovered three hand-grenades HG-84 vide recovery memo Ex.
PW-168/B. The hand-grenades have since been destroyed.
The destruction was carried out by PW-193 Major Sanjay
Kumar Shukla, bomb disposal squad, National Security Guard
Complex, Smalkhan, New Delhi, where the same were carried
by PW-85 SI Girish Jain.
414. Apart from the above recoveries, a 9 mm pistol Ex. PW-
148/1 along with magazine Ex. PW-148/2 and six live
cartridges Exs. PW-148/3 to 8 were also recovered at the time
of arrest of accused Md. Arif @ Ashfaq . The said pistol was
seized vide seizure memo Ex. PW-148/B. On this FIR No.
419/00 was registered at Police Station Kalyan Puri.
415. It is in evidence that on the recovery of the weapons, their
sketches were prepared and thereafter they were properly
sealed and deposited in the Mal khana and from there they
were sent to CFSL for examination. PW-211 Sh. K.C.
Varshney examined the pistol and cartridges recovered at the
time of arrest of accused Md. Arif @ Ashfaq and deposed that
same were firearm and ammunition as defined under the Arms
Act. His report is Ex. PW-211/A. PW-202 Sh. N.B. Vardhan
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: 303 :
examined the firearm, ammunition and the hand-grenades
recovered from behind the Red Fort on 26.12.2000 and also
found the same to be firearm, ammunition and explosive
substance under the Arms Act and Explosive Substances Act
respectively. His report is Ex. PW-202/A. PW-206 Sh. A.
Dey, Senior Scientific Officer, examined the hand-grenades
recovered from G-73, Muradi Road, Okhla, Delhi as well as
arms and ammunition and found the same to be arms,
ammunition and explosive substances as defined under the
Arms Act and Explosive Substances Act respectively. The
testimony of PW-211 Sh. K.C. Varshney and PW-206 Sh. A.
Dey has gone unchallenged. The testimony of PW-202 Sh.
N.B. Bardhan has also gone unchallenged on this point, though
he has been cross-examined regarding the recoveries effected
in his presence.
416. It is submitted by Sh. R.M. Tufail, learned defence counsel
that no recovery whatever, has been effected from accused Md.
Arif @ Ashfaq @ Ashfaq or at his instance as he did not make
any disclosure statement. Sh. R.M. Tufail has also challenged
the factum of arrest of accused Md. Arif @ Ashfaq from 308-
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: 304 :
A, DDA Flats, Gazhipur, Delhi. It is also submitted that no
public person was joined in the investigation at the time of
recovery. He has also challenged the presence of PW-208 Sh.
Devender Kumar at the time of recovery from Jamia Milia
Islamia University. He has also submitted that there are
several contradictions in the testimonies of the witnesses.
417. PW-173 Ins. Ved Parkash has deposed that accused Md. Arif
@ Ashfaq was apprehended while entering 308-A, DDA Flat,
Gazhipur, Delhi and a pistol was recovered from him. This
fact has been corroborated by PW-148 SI Zile Singh also. After
the registration of the case, the investigation was handed over
to PW-194 SI Harender Singh. All three witnesses have been
cross-examined in detail by the learned defence counsel and
there is nothing of any significance which could discredit their
testimony regarding the arrest and recovery from the accused
Md. Arif @ Ashfaq . Accused Md. Arif @ Ashfaq has
admitted in his statement u/s 313 Cr.P.C., that he was arrested
from 308-A, DDA flats, Gazhipur, Delhi. His mother-in-law
DW-1 Mrs. Qamar Farukhi has also admitted that Md. Arif @
Ashfaq was arrested from their house. PW-229 Ins. Mohan
FIR No. 688/00, PS Kotwali
: 305 :
Chand Sharma and PW-173 Ins. Ved Parkash has deposed that
he was arrested on the basis of surveillance mounted on him
through the telephonic calls made from his computer center to
308-A, DDA Flats, Gazhipur, Delhi. The story of his arrest is
quite natural, as I have already held that Md. Arif @ Ashfaq
was having mobile phone and it is the admitted case of both
parties the telephone number 26315904 was installed at
“Knowledge Plus Computer Center “ run by the accused Md.
Arif @ Ashfaq and telephone number 2720223 is intalled at
308-A, DDA Flat, Gazhipur, Delhi in the name of Mrs. Farzana
Farukhi, elder sister of accused Rehmana Yusuf Farukhi.
418. The next submission is that accused did not make the
disclosures Ex. PW-148/E and 168/D which led to the
recoveries at G-73, Muradi Road, behind the Red Fort and
Jamia Milia Islamia University. I find that both the disclosures
were made in the presence and custody of the police officials
and are signed by the accused also. The accused is a well-
educated person as he has claimed in his statement recorded
u/s 313 Cr.P.C that he was working as an agent of RAW and
even runs a business. The accused has no where claimed in his
FIR No. 688/00, PS Kotwali
: 306 :
statement that he was forced to sign these disclosure
statements, though he claimed that he did not make any
disclosure statement. This fact cannot be believed in view of
weight of evidence on record. The submission is as such is
without merit.
419. It is next contended that the presence of PW-208 Devender
Kumar is unnatural on the spot at Jamia Milia Islamia
University and he is a procured witness. This witness has been
cross-examined in detail by the learned defence counsel, but he
has not been able to extract anything to the benefit of the
accused. The recovery at Jamia Milia Islamia University was
effected by the police in the presence of PW-209 Sh. Raghubir
Singh, Security Guard of the University. He has also been
cross-examined in detail, but he has also withstood the test of
the cross-examination. As such, the presence of PW-208 Sh.
Devender Kumar cannot be disbelieved.
420. I have already held that there was a conspiracy to wage war
against the Government of India as well as conspiracies to kill
all those who resist such action and to forge driving licence and
ration card of accused Md. Arif @ Ashfaq to provide him
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: 307 :
Indian identity and to harbour him with a view to conceal his
designs. Now the question is as to which of the accused were
members to the main conspiracy of waging war against
Government of India and conspiracies to kill those who come
to resist the action of waging war against Government of India
and to forge the aforesaid document and to harbour Md. Arif @
Ashfaq to conceal his designs ?
421. Mobile phone 9811278510 was recovered from the
possession of accused Md. Arif @ Ashfaq. From this
telephone, calls were made to BBC Sri Nagar and Delhi on the
date of the incident. Now the question is as to who made these
calls ? The incident took place at about 9.00 pm and calls
were made to BBC in between 9.00 to 9.30 pm. The aforesaid
telephone number was found written on a paper-slip Ex. PW-
183/B, which was found near the rear wall of the Red Fort.
The aforesaid telephone number was in operation from
26.10.00 to 23.12.2000 as per letter Ex. PW-198/A written by
the Essar Cell Phone. This has already been proved that Md.
Arif @ Ashfaq was having possession of this telephone as it
was recovered from him and his keeping a mobile phone has
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: 308 :
been deposed to by three-four witnesses. At the instance of
the accused Md. Arif @ Ashfaq, one AK-56 Rifle, four hand-
grenades, detonators, bandoleer etc. were recovered from
behind the Red Fort on 26.12.2000 immediately after his arrest.
Earlier to that in the morning of 23.12.2000, PW-234 Ins. Roop
Lal had seized AK-56 rifle with magazines and six cartridges
vide Ex. PW-62/B in the presence of CFSL officials. As per
the report of PW-202 Sh. N.B. Bardhan, the empty cartridges
recovered from the scene of crime inside Red Fort were fired
from the rifle recovered at the instance of accused Md. Arif @
Ashfaq on 26.12.2000 and the one recovered from Vijaya Ghat
on 23.12.2000. This fact points to the fact that the accused
who had got the weapons recovered had an intimate connection
with the crime committed at the Red Fort. Not only this,
accused Md. Arif @ Ashfaq got arms and ammunitions
recovered from his hideout at G-73, Muradi Road. He also
identified his associate Abu Shamal who was killed in
encounter at the aforesaid hideout. The arms and ammunitions
recovered from the hideout are also of same type as recovered
from behind the Red Fort and at Vijaya Ghat. Accused Md.
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: 309 :
Arif @ Ashfaq also got three hand-grenades recovered from
Jamia Milia Isliamia University on 01.01.2001.
422. Regarding the identification of deceased Abu Shamal by
accused Md. Arif @ Ashfaq , a contention was raised that this
identification is not admissible as it amounts to a statement u/s
161 Cr.P.C. This point was directly involved in “Parliament
Attack Case (Supra)” and Hon'ble Supreme Court observed in
this regard at page 637 as under :-
“............... The first circumstance is that Afzal knew
who the deceased terrorists were. He identified the
dead bodies of the deceased terrorists. PW76
(Inspector HS Gill) deposed that Afzal was taken to
the mortuary of Lady Harding Medical College and
he identified the five terrorists and gave their names.
Accordingly, PW76 prepared an identification memo
Ext.PW76/1 which was signed by Afzal. In the
postmortem reports pertaining to each of the
deceased terrorists, Afzal signed against the column
'identified by'. On this aspect, the evidence of PW76
remained un-shattered. In the course of his
examination under Section 313, Afazal merely stated
that he was forced to identify by the police. There
was not even a suggestion put to PW76 touching on
the genuineness of the documents relating to
FIR No. 688/00, PS Kotwali
: 310 :
identification memo. It may be recalled that all the
accused, through their counsel, agreed for admission
of the postmortem reports without formal proof.
Identification by a person in custody of another does
not amount to making a statement falling within the
embargo of Section 162 of Cr.P.C. It would be
admissible under Section 8 of Evidence Act as a
piece of evidence relating to conduct of the accused
person in identifying the dead bodies of the terrorists.
As pointed out by Chinnappa Reddy, J. in Prakash
Chand Vs. State (Delhi Admn.) AIR 1979 SC 400
:-
“.......... There is a clear distinction between
the conduct of a person against whom an
offence is alleged, which is admissible under
Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or
relevant fact and the statement made to a
Police Officer in the course of an
investigation which is hit by Section 162
Criminal Procedure Code. What is excluded
by Section 162 Criminal Procedure Code is
the statement made to a Police Officer in the
course of investigation and not the evidence
relating to the conduct of an accused person
(not amounting to a statement) when
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confronted or questioned by a Police Officer
during the course of an investigation. For
example, the evidence of the circumstance,
simpliciter, that an accused person led a
police officer and pointed out the place
where stolen articles or weapons which might
have been used in the commission of the
offence were found hidden, would be
admissible as conduct, under Section 8 of the
Evidence Act, irrespective of whether any
statement by the accused contemporaneously
with or antecedent to such conduct falls
within the purview of Section 27 of the
Evidence Act (vide Himachal Pradesh
Administration Vs. Om Prakash AIR 1972
SC 975) .........”
423. I, accordingly, hold that the identification of deceased Abu
Shamal by accused Md. Arif @ Ashfaq is admissible in
evidence. Similarly, Md. Arif @ Ashfaq identified the
nagative Ex. PW-86/B of accused Abu Bilal. PW-61 Sh.
Mukhtar Ahmad has deposed that Jahur Ahmad Qasid and Abu
Haider were also in Delhi in the same year as Jahur Ahmad
Qasid was staying at his house and Abu Haider used to visit
him.
FIR No. 688/00, PS Kotwali
: 312 :
424. PW-229 Ins. Mohan Chand Sharma has deposed that
location of mobile telephone number 9811278510 was inside
and at the rear side of the Red Fort at the time of the incident.
This witness has deposed in detail about the location of the
aforesaid mobile number and the calls made by this telephone
to different telephones immediately before and after the
incident. On the basis of the said cell ID Record Ex. PW-
198/C and on the basis of the telephone record Ex. PW-198/B-
1 to B-3, he has proved that the position of the caller was near
the Red Fort at the time of the incident and calls were made
from this mobile phone to BBC regarding the attack on the Red
Fort by Lashkar-e-Toiba. This witness deposed in detail about
the use of the aforesaid mobile phone as well as recovery from
G-73, Muradi Road, Okhla, Delhi but he has not been cross-
examined on any of these points. In fact, his testimony has
gone unchallenged.
425. It is the admitted case of accused Md. Arif @ Ashfaq that he
used to run “Knowledge Plus Computer Center” at 18-C,
Gaffur Nagar, Okhla, Delhi, where telephone number
26315904 is installed. Similarly, it is his admitted case that he
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married to Rehmana Yusuf Farukhi resident of 308-A, DDA
Flats, Gazhipur, Delhi, where telephone number 2720223 is
installed. It is also his admitted case that he was arrested from
this house. It is on record that a large number of calls were
made from mobile phone no. 9811278510 to the aforesaid two
telephone numbers. This fact establishes close connection
between the three telephones. Now the question remains :
Whether Md. Arif @ Ashfaq was part of the militants who had
launched the attack at 7th Raj Rifles inside the Red Fort on
22.12.2000. The allegations of the prosecution are that he
carried out the attack along with his other associates including
Abu Haider, Abu Shamal, Abu Bilal, Abu Saad and Abu
Shakur. One rifle, from which cartridges recovered from the
Red Fort were fired, has been recovered at his instance from
behind the Red Fort. Other similar type of rifle was recovered
from Vijaya Ghat, which is just near the place of occurrence
and the cartridges recovered from the scene of crime were also
fired from this rifle. Accused Md. Arif @ Ashfaq has pointed
out his hideout at G-73, Muradi Road, where Abu Shamal was
killed in encounter and he has identified by him as his
FIR No. 688/00, PS Kotwali
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associates. Telephone number 9811278510 was recovered
from the accused Md. Arif @ Ashfaq , which was deactivated
on 23.12.2000 after the incident. The location of this mobile
phone was near, inside and at the rear side of Red Fort before
and after the incident and calls have been proved to have been
made to BBC from this telephone.
426. Not only this the conduct of accused Md. Arif @ Ashfaq
was also strange before the incident. PW-56 Sh. Faisal Mohd.
Khan has deposed that he had invested only Rs. 70,000/- in the
computer center whereas Md. Arif @ Ashfaq had invested Rs.
1,70,000/- in the same, but he used to visit the computer center
only once in four/five days. He further deposed that on
22.12.2000, he left Delhi for his village for celebrating Id and
Md. Arif @ Ashfaq had not met him for four-five days. There
is no cross-examination of the witness on this point. This
shows that the conduct of the accused Md. Arif @ Ashfaq was
not normal, otherwise a person, who would invest such a huge
amount in his business in another city, would not have
remained absent from his business place for such a long period
of time. All these factors unmistakably point to the fact that
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accused Md. Arif @ Ashfaq was not only part of conspiracy to
wage war against Govt. of India but also actually participated
in the firing incident inside Red Fort, in which three army
jawans Naik Ashok Kumar, Uma Shankar and Abdullah
Thakur were killed. It is also unmistakably proved that it was
Md. Arif @ Ashfaq , who had telephoned the Sri Nagar and
Delhi offices of the BBC regarding the killing of Army Jawans
inside Red Fort by Lashkar-e-Toiba, which calls were attended
PW-39 Altaf Hussain and PW-41 Ayanjit Sen respectively.
427. The allegations of the prosecution is that accused Md. Arif
@ Ashfaq , a Pakistan national, entered India illegally
somewhere in late 1999. Accused has no documents for his
entry in India. In his statement u/s 313 Cr.P.C, accused Md.
Arif @ Ashfaq has given his address as House no. 512, Ward
No. 12, Mohallha Kunj Kehar, Distt. Ebtabad, Pakistan.
Accused Md. Arif @ Ashfaq has further admitted that he is a
Pakistan national and entered India illegally via Nepal. As
such, it also stands proved that accused Md. Arif @ Ashfaq
committed offence under Foreigner's Act 1946.
428. Now, I shall take up the case of Nazir Ahmad Quasid and
FIR No. 688/00, PS Kotwali
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Farukh Ahmad Quasid. Accused Farukh Ahmad Quasid is the
son of Nazir Ahmad Quasid and they are residents of Bagat
Kanipura, Sri Nagar. The allegations of the prosecution
against the two are that they used to provide shelter to the
members of Lashkar-e-Toiba including Md. Arif, Abu Shamal
and others at their residence and they along with other accused
entered into a conspiracy to wage war against the Government
of India. In pursuance to the aforesaid conspiracy, they sent
Md. Arif @ Ashfaq to Delhi to set up a base there as well as
to collect Hawala money and transfer the same through their
accounts to Sri Nagar for financing their activities of waging
the war against the Government of India. In this regard, they
opened three bank accounts with Bilal Ahmad Kawa in
Standard Chartered Grindleys Bank as account Nos. 32263962
in the name of M/s Nazir Sons, 28552609 in the name of Bilal
Ahmad Kawa and 32181669 in the name of Farookh Ahmad
Quasid. The three accused received huge amounts in the three
accounts and distributed the same to various militants.
429. It is submitted by the learned defence counsel that accused
are neither the members of Lashkar-e-Toiba nor were they
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: 317 :
party to any conspiracy to wage war against Government of
India nor waged any such war. It is submitted that for the
offence of conspiracy there must be an agreement between the
parties to do an illegal act or an act, which is illegal by illegal
means. Mere association or innocuous contact does not make
one a party to conspiracy. In this regard, paragraph 276 of
Kehar Singh (Supra) has been referred to specifically which
is as under :-
“I share this opinion, but hasten to add that the
relative acts or conduct of the parties must be
conscientious and clear to mark their concurrence as
to what should be done. The concurrence cannot be
inferred by a group of irrelevant facts artfully
arranged so as to give an appearance of coherence.
The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict. We
must thus be strictly on our guard.”
430. I have already held that the three accounts account Nos.
32263962 in the name of M/s Nazir Sons, 28552609 in the
name of Bilal Ahmad Kawa and 32181669 belong to accused
Nazir Ahmad Quasid and Farukh Ahmad Quasid and they used
to receive Hawala money from Md. Arif @ Ashfaq from Delhi
FIR No. 688/00, PS Kotwali
: 318 :
and further used to distribute the same to various militants for
militant activities. I have also held that telephone no. 436188
is installed at their residence. I find that Rs. 29,50,000/- were
deposited by accused Md. Arif @ Ashfaq in aforesaid three
accounts vide cheques Ex. PW-27/1 to 9 from 17.07.2000 to
16.11.2000. The question is : Why accused Md. Arif @
Ashfaq would deposit such a huge amount in their accounts
within such a short period if he was not connected with them ?
Furthermore, Why the aforesaid amount would be distributed
by the accused to various persons vide cheque Ex. PW-97/1 to
40 within the same short period of July 2000 to November
2000 ? The cheques include one cheque 18.09.2000 in favour
of Bilal Ahmad and some cheques are in favour of Nazir
Ahmad Quasid and Farukh Ahmad Quasid. Perusal of the
cheques shows that three accused used to transfer the money to
each other also. The transfer of such huge amount of money
without any reason to the accused and the distribution of the
same by the accused to different persons including transfer to
each other, does not show that this transfer was for an
innocuous purpose, that too from a person, who has been
FIR No. 688/00, PS Kotwali
: 319 :
proved to be involved in waging war against Government of
India as well as attacking Army camp inside Red Fort, which
resulted in the death of three jawans. This fact speaks
unmistakably and loudly that the two accused Nazir Ahmad
Quasid and Farukh Ahmad Quasid were in agreement with the
other accused to wage war against the Government of India and
as such they are party to the conspiracy. This fact is further
strengthened by the fact that Md. Arif @ Ashfaq also used to
be in telephonic contact with them and the fact that both
accused have totally disowned the bank accounts. It is not their
case that they were merely hawala operators and used to
distribute hawala money. Then the only conclusion that can
be drawn is that they were in close contact with Md. Arif @
Ashfaq and were party to the conspiracy hatched at the
instance of Lashkar-e-Toiba to wage war against the
Government of India and to commit other acts of violence and
forgery. By receiving such a huge amount of money and
distributing the same to different militants in collusion with
Md. Arif @ Ashfaq, they have actively abetted the waging of
war against the Government of India. The circumstances
FIR No. 688/00, PS Kotwali
: 320 :
suggest that they had also an active role in sending accused
Md. Arif @ Ashfaq to Delhi.
431. However, there is no legally admissible evidence direct or
circumstantial to the effect that accused Md. Arif @ Ashfaq
and other co-accused used to take shelter at their house.
FIR No. 688/00, PS Kotwali
: 321 :
432. Now I shall take up the case of the accused Rehmana Yusuf
Farukhi. It is alleged by the prosecution that accused Rehmana
Yusuf Farukhi resident of 308-A, DDA Flats, Gazhipur, Delhi,
was contacted by accused Md. Arif @ Ashfaq in response to
her matrimonial advertisement dated 08.10.2000. She was
elder in age as well as suffering from spondylitis and was unfit
for marriage, but accused Md. Arif @ Ashfaq offered her huge
amount of money to marry him for helping him in carrying out
war against Government of India and to kill any one who
resists his action. Thereafter, Md. Arif @ Ashfaq paid her Rs.
2,80,000/-, which she deposited in her bank account and she
became a willing party to the conspiracy. She used to remain
in telephonic contact with accused Md. Arif @ Ashfaq and
ultimately married him on 08.12.2000. Accused Md. Arif @
Ashfaq was apprehended from his house and many
incriminating articles were recovered from there.
433. It is submitted by Sh. R.M. Tufail, learned defence counsel
that nothing was recovered from the house of accused
Rehmana Yusuf Farukhi and the entire recovery has been
fabricated by the police to implicate her in the conspiracy. The
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money amounting to Rs. 2,80,000/-, which was deposited in
her bank account, was given by her relatives. She was fit for
marriage and married accused Md. Arif @ Ashfaq innocently
believing him to be a resident of Jammu.
434. The first submission of the learned defence counsel is that
nothing was recovered from her house. However, PW-173
Ins. Ved Parkash deposed that during her house search a
cheque book of HDFC Bank Ex. PW-173/C, ATM Card Ex.
PW-173/D, three pay-in-slips Exs. PW-173/E to G, vide which
amount was deposited in the bank account of Rehmana Yusuf
Farukhi, her passport Ex. PW-173/H, her I-card Ex. PW-173/I,
one cheque book Ex. PW-173/J of SBI Bank, one cash deposit
slip Ex. PW-173/K of Standard Chartered Bank for an amount
of Rs. Five lacs, one personal diary Ex. PW-173/L and a
digital diary Ex. PW-173/M were recovered from her house. A
negative Ex. PW-86/B of Abu Bilal, identified by accused Md.
Arif @ Ashfaq, was also recovered from her house. This
witness has been cross-examined in detail and learned defence
counsel has not been able to extract anything to the benefit of
the accused. He has categorically deposed that these articles
FIR No. 688/00, PS Kotwali
: 323 :
were recovered from the house of Rehmana Yusuf Farukhi at
the time of arrest of accused Md. Arif @ Ashfaq .
Accordingly, the submission of learned defence counsel that
nothing was recovered from her house, is contrary to record
and is accordingly rejected.
435. The next submission is that money, which was deposited in
her account, was given by her relatives for her marriage.
However, the name of any relative has not been given by
accused Rehmana Yusuf Farukhi in her statement recorded u/s
313 Cr.P.C. Her mother Qumar Farukhi also appeared in her
defence as DW-1. She has also not given the names of any
relatives or other person who contributed the money for her
marriage. This submission is as such false on the face of
record. It is further strengthened by the fact that cash
amounting to Rs. 1,50,000/- was deposited in her account vide
receipt Ex. PW-9/B dated 21.11.2000 and a part of the writing
on this receipt, is in the handwriting of Md. Arif @ Ashfaq as
per report of handwriting expert PW-216 Dr. M.A. Ali and this
portion was referred to by him as Q30B.
436. Next submission is that she married Md. Arif @ Ashfaq
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: 324 :
innocently believing him to be a resident of Jammu and she
was fully fit for marriage. This fact is again contrary to
record. Her mother DW-1 Smt. Qumar Farukhi admitted in
her cross-examination admitted that :-
“ ................ We had told Md. Arif @ Ashfaq that
Rehmana was suffering from spinal cord problem
and was not fit for consummation of the marriage.
I do not know if despite these problem Md. Arif
@ Ashfaq married my daughter just to procure a
base for his activities. ..................... “
437. As such, all the submissions raised on behalf of Rehmana
Yusuf Farukhi are contrary to the record and have been rejected
as such. Now the question is : Whether she was a party to the
conspiracy or was an innocent victim ? Admittedly, she was
not fit for marriage as deposed to by her mother. Md. Arif @
Ashfaq had paid her Rs. 2,80,000/- within a short span of
twenty days in the month of November 2000 from 9.11.00 to
29.11.00. Nobody would pay such a huge amount for no
reason to a woman who is not even fit for marriage unless one
is willing to do something illegal and Rehmana Yusuf Farukhi
became a willing party to it. This fact is further strengthened
FIR No. 688/00, PS Kotwali
: 325 :
by the recovery of receipt Ex. PW-173/K, from her house
whereby Md. Arif @ Ashfaq had deposited Rs. Five lacs in the
account of Nazir Sons. A diary in which telephone number of
several persons including some residents of Pakistan were
recorded, was also recovered. A visa form of Pakistan Ex.
PW-83/P-1 and negative of Abu Bilal Ex. PW-86/B was also
recovered from her house. The deposit of such huge amount
of money by her would-be husband in the bank account of
Nazir Sons must have aroused her suspicion as she must have
known the sources of income of him. The presence of so many
things must have made her suspicious to know the reality of her
would-be husband. But she ignored all these things as she was
willing to harbour accused Md. Arif @ Ashfaq knowing his
reality that he was a Lashkar-e-Toiba Militant and a Pak
National and who entered India illegally to carry out militant
activities.
438. Accused Md. Arif @ Ashfaq was apprehended from her
house No. 308-A, DDA Flats, Gazhipur, Delhi. Md. Arif @
Ashfaq used to run a computer center at 18-C, Gaffur Nagar,
Okhla, Delhi. This also involved huge investment enough to
FIR No. 688/00, PS Kotwali
: 326 :
raise the suspicion of any reasonable person about the source of
income of the owner. There is no evidence that accused Md.
Arif @ Ashfaq used to reside at the computer center. The
addresses found to be mentioned in his ration card Ex. PW-
164/A i.e. F-17/12, Batla House, Delhi is a false address and its
owner PW-65 Sh. Malik Irfan Choudhary deposed that no
person by the name of Md. Arif @ Ashfaq ever resided at the
abovesaid address. Then the question is : Where did accused
Md. Arif @ Ashfaq use to reside ? His partner PW-56 Faisal
Mohd. Khan is silent on this point. In these circumstances,
particularly the fact that in the night of 25/26.12.2000 accused
was apprehended while entering the house of Rehmana Yusuf
Farukhi, it is safe to conclude that he used to stay at the
aforesaid house and was provided shelter by accused Rehmana
Yusuf Farukhi knowing fully well about his identity as a Pak
National and object to carry out militant activities and she, as
such harboured him and also concealed his designs from the
public authorities.
439. Now, I shall take up the case of Babar Mohsin Bagwala. The
primary submission of Sh. I.U. Khan, learned defence counsel
FIR No. 688/00, PS Kotwali
: 327 :
for accused Babar Mohsin is that letter Ex. PW-10/C was not
recovered from the motor-cycle of the accused. This letter has
been got written by the police when Md. Arif @ Ashfaq was in
their custody. Its recovery has also become doubtful by the
fact that the passerby from whom the letter was got read over
has not been joined as a witness to the recovery proceedings.
There is no dickey affixed to the motor-cycle and in such a case
the chances of letter being found in the dickey of motor-cycle
are very less. In any case the letter is innocuous and harmless
and no conclusion can be drawn against the accused from this.
440. PW-10 ASI Chand Singh, PW-28 SI Abhinendra Jain and
IO PW-230 Ins. Surender Kumar Sund have deposed that
aforesaid letter was recovered by them on 07.01.2001 when
motor-cycle Ex. P-1 belonging to accused Babar Mohsin was
seized and searched. As per the report of handwriting expert
PW-216 Dr. M.A. Ali, letter Ex. PW-10/C is in the handwriting
of accused Md. Arif @ Ashfaq . Accused Md. Arif @ Ashfaq
has tried to explain it away in his statement Ex. PW-313 Cr.P.C
by stating that police had got two/three letters written from him
when he was in custody. This letter is dated 14.03.2000. It is
FIR No. 688/00, PS Kotwali
: 328 :
in evidence of PW-31 Azam Malik that in the month of
February-March 2000, Md. Arif @ Ashfaq was in Delhi and
he had taken a room on rent in the house of PW-20 Nain Singh.
There is no evidence on record that Md. Arif @ Ashfaq had
stayed at the house of accused Babar Mohsin, but the letter
suggests that some help was rendered by accused Babar
Mohsin to him during his stay in Delhi and as such letter is not
quite unnatural and out of place. It is of no use whether the
attachment attached to the motor-cycle is called a canvas bag or
a dickey. The fact is that the three witnesses have deposed that
the letter Ex. PW-10/C was recovered from the motor-cycle of
Babar Mohsin and in their cross-examination , there is nothing
of any significance which could discredit their testimony. All
the witnesses have corroborated the version of each other.
Learned defence counsel has pointed out some cuttings and
overwriting in the seizure memo, but the same does not
diminish or destroy evidentiary value of the recovery. It is
correct that neither the passerby from whom the letter was got
read over nor any public person has been joined in the
investigation. I have already held that non-joining of public
FIR No. 688/00, PS Kotwali
: 329 :
person in investigation during the time of recovery is not a
requirement of law and if the version of the police officials is
reasonable and credible, the same can be accepted. It is also
correct that, taken by itself, the contents of the letter Ex. PW-
10/C appear to be innocuous as they merely convey thanks to
Babar Mohsin from accused Md. Arif @ Ashfaq . But it must
be noted that letter was written by one accused to another when
the conspiracy was on foot and in existence. I, accordingly,
hold that letter Ex. PW-10/C was written by accused Md. Arif
@ Ashfaq to accused Babar Mohsin and has been recovered
from his motor-cycle.
441. The next submission of the learned defence counsel Sh. I.U.
Khan is that PW-225 Mohd. Ahmad is tainted and biased
witness. He has been procured by the IO Ins. Surender Kumar
Sund to depose against accused Babar Mohsin and Sadakat Ali
as there is no other evidence against them. PW-225 Mohd.
Ahmad has deposed that Babar Mohsin and Ashfaq used to
visit the house of accused Sadakat Ali, who resides near his
house.
442. Learned defence counsel Sh. I.U. Khan and Sh. R.M. Tufail
FIR No. 688/00, PS Kotwali
: 330 :
learned defence counsel for accused Sadakat Ali have assailed
the evidence of PW-225 Md. Ahmad for the reasons that :-
(i) His complaint Ex. PW-57/A is vague and does not mention
any of the accused ;
(ii) His statement was recorded by the police in June 2001
though the incident took place in December 2000 ;
(iii) He is a police informer and as such deposed falsely for the
police ; and,
(iv) He is having litigation with accused Sadakat Ali.
443. For easy understanding, I quote the statement of PW-225
Mohd. Ahmad as he is main witness against the two accused,
which is as under :-
“I am residing at the aforesaid address. I know
Sadaqat Ali, today present in the court. He resides
2277-78, Rodgram, Lal Kuan, Delhi. He is a builder
by profession and construct houses. My friend
informed me that Sadaqat Ali who is a builder by
profession is assisting the terrorists operating in Sri
Nagar to escape from Delhi. He is also having a
house in Okhla, Delhi. One Asfaq used to reside in
his house at Okhla. I had never seen Asfaq till date.
I was informed that Sadaqat Ali had taken Rs. Four
lacs for making escape good for the terrorist by bus.
FIR No. 688/00, PS Kotwali
: 331 :
I had made a complaint in this regard to the
Commissioner of Police and Home Minister, Govt.
of India. I have seen my complaint Ex. PW-57/A. It
does not bears my signature however the complaint
is mine. In June 2001, a police officer came to me
and enquired about the complaint. I informed him
about the complaint. I know Babbar Mohsin and
accd., with cap on his head who is Asfaq. I know
both of them as they used to visit the house of
Sadaqat Ali. I know both of these accd., only by face
and not by their names.”
444. PW-225 Mohd. Ahmad has admitted that a complaint Ex.
PW-57/A was made by him, when he came to know that
accused Sadakat Ali was helping terrorist to escape from Delhi
to Sri Nagar. He conceded in the cross-examination that he is
illiterate and had made the complaint in the month of March
2001 and does not know as to why the date of 15.05.2001 is
written on the complaint. He insisted that he had made the
complaint to the police in March 2001 and he had copy of the
same. Considering the nature of the case, it cannot be said that
he contacted the police belatedly and as such his statement
cannot be relied upon.
445. The witness claims that he is an illiterate person and got the
FIR No. 688/00, PS Kotwali
: 332 :
complaint drafted from some one else. In these circumstances,
it cannot be said that the complaint is vague and the level of the
literacy is reflected in the language of the complaint also. As
far as the submission that accused Babar Mohsin and Asfaq
were not named in the complaint, is concerned, the witness has
deposed that he know them by face only as they used to visit
the house of Sadakat Ali. The witness has identified the two
accused in the witness-box and has clearly admitted that he
came to know about their names only today, though he
recognize them by the face as they used to meet accused
Sadakat Ali. In these circumstances, it is of no consequence
that these two accused were not named in the complaint or the
statement made before the police.
446. It is also submitted that PW-225 Mohd. Ahmad is a police
informer and is having litigation with accused Sadakat Ali.
However, this witness had clearly admitted in the complaint
Ex. PW-57/A that he is a police informer. It is no offence to be
a police informer and this alone is not sufficient to diminish the
evidentiary value of his statement. As far as litigation is
concerned, this witness is quite categorical that accused
FIR No. 688/00, PS Kotwali
: 333 :
Sadaqat Ali started harassing him after he came to know that he
(Md. Ahmad) had made complaint against him. Before this
complaint, there were no litigation between the two and the
entire litigation started only thereafter. The witness has denied
that he ever appeared as a witness in any case. He deposed
that first case was registered by him against Sadakat Ali on
05.09.2001 after he was assaulted by him on 19.03.2001 after
he gave the complaint about his involvement in the Red Fort
Shoot-out. The witness has denied the suggestion that he
deposed at the instance of the IO Ins. Surender Kumar Sund.
447. In these circumstances, when the witness is quite categorical
about having seen accused Md. Arif @ Ashfaq , Babar Mohsin
and Sadakat Ali together, I do not find any reason to reject his
testimony by taking recourse to some minor defects and
deficiencies in his statement. I, accordingly, find his statement
to be reasonable and reliable.
448. Considering the fact that letter Ex. PW-10/C was written by
Md. Arif @ Ashfaq to Babar Mohsin, when the conspiracy
was on foot and he was repeatedly seen meeting Sadakat Ali
along with Md. Arif @ Ashfaq and these meetings cannot be
FIR No. 688/00, PS Kotwali
: 334 :
explained away as innocuous or inadvertent as apparently there
is no relationship between the three accused, which could
facilitate their meetings together, it is safe to conclude that
accused Babar Mohsin knew that Md. Arif @ Ashfaq was a
Pak National, and a member of Lashkar-e-Toiba, who had
entered India illegally with a view to commit militant activities
in India and for whose apprehension, orders have been issued.
As such, he provided shelter to accused Ashfaq as well as
concealed the designs to commit offences punishable with
death or life imprisonment.
449. Now I shall take up the case of accused Sadakat Ali. It is
alleged against him that he is owner of premises no. 18-C,
Gaffar Nagar, Okhla, Delhi and rented out the same to Md. Arif
@ Ashfaq apparently for running a computer center under the
name and style of “ Knowledge Plus” but infact for setting a
base for Lashkar-e-Toiba. Telephone no. 3216574 is installed
at his residence and he used to be in constant touch with Md.
Arif @ Ashfaq . He was repeatedly seen in the company of
Md. Arif @ Ashfaq and Babar Mohsin. It is alleged that he
was party to the conspiracy with Md. Arif @ Ashfaq and his
FIR No. 688/00, PS Kotwali
: 335 :
associates to set up a base at Delhi for Lashkar-e-Toiba and to
cause the death of anyone who come to resist their action of
waging war against the Government of India. He intentionally
sheltered a foreigner (Md. Arif @ Ashfaq ) in his house and
did not inform police about this and as such committed
offences u/s 188 IPC as well as u/s 14 of the Foreigner's Act.
450. I have already held that there was conspiracy to wage war
against the Government of India as well as further conspiracies
to commit the murder of those who come in the way to resist
the action of the accused as well as to forge documents for
providing Indian identity to accused Md. Arif @ Ashfaq . Now
the question is : Whether accused Sadakat Ali was party to the
conspiracy to kill those who come to resists the action of Md.
Arif @ Ashfaq and his associates in waging war against
Government of India ? Whether he intentionally let out his
premises to Md. Arif @ Ashfaq for setting up a base and did
not inform the police ? Whether he sheltered Md. Arif @
Ashfaq (a Pak national) knowing his purpose ? Whether he
concealed design of Md. Arif @ Ashfaq to commit terrorist
acts punishable with with death or life imprisonment.
FIR No. 688/00, PS Kotwali
: 336 :
451. It is submitted by Sh. R.M. Tufail, learned defence counsel
that accused Sadakat Ali was not party to the conspiracy and he
had let out his premises No. 18-C, Gaffur Nagar, Okhla to
Faisal and not to Md. Arif @ Ashfaq . In this regard, my
attention has been invited to Question no. 85 of statement of
accused Sadakat Ali recorded u/s 313 Cr.P.C. It has repeatedly
been submitted that mere letting out of the aforesaid premises
by Sadakat Ali does not make him party to the conspiracy. He
does not know accused Babar Mohsin. The accused was not in
telephonic contact with accused Md. Arif @ Ashfaq . As
already referred to above, it is repeatedly submitted that PW-
225 Md. Ahmad is a procured witness and Investigating Officer
has created false evidence against him. The accused has
already been punished for not informing the police regarding
letting out his house No. 18-C, Gaffur Nagar, Okhla.
452. It is the admitted case of accused Sadakat Ali that premises
No. 18-C, Gaffur Nagar, belongs to him. Accused Md. Arif @
Ashfaq has also admitted that he had opened a computer center
with Faisal Mohd. Khan at the aforesaid address. Both of these
accused claim that the aforesaid premises was taken on rent by
FIR No. 688/00, PS Kotwali
: 337 :
Faisal Mohd. Khan. However, Faisal Mohd. Khan appeared as
PW-56 in the witness-box and deposed that premises was taken
on rent by Md. Arif @ Ashfaq . This witness has been cross-
examined by Sh. R.M. Tufail, learned defence counsel only for
accused Md. Arif @ Ashfaq and there is no cross-examination
for accused Sadakat Ali, though it was suggested to him that
the premises was taken on rent by him and not by Md. Arif @
Ashfaq . As such his testimony has gone unchallenged as far
as accused Sadakat Ali is concerned. I have carefully read his
statement again and again and I do not find anything therein
which could suggest that the premises was taken by him on
rent. He has admitted that there was no written agreement
between him and Md. Arif @ Ashfaq , nor had he seen any
rent deed signed by Md. Arif @ Ashfaq . His evidence clearly
indicates that the premises was let out by accused Sadakat Ali
to Md. Arif @ Ashfaq . Even otherwise, the ratio of
investment made by the two in the computer center also
suggest that the premises was taken on rent by Md. Arif @
Ashfaq as he was a dominant partner. Further more, it was
accused Md. Arif @ Ashfaq who told Faisal that he wanted to
FIR No. 688/00, PS Kotwali
: 338 :
open a computer center and later joined him as a partner.
453. The subsequent conduct of Faisal Mohd. Khan and accused
Sadakat Ali also indicate that the premises was let out to Md.
Arif @ Ashfaq . PW-56 Faisal Mohd. Khan deposed that he
heard about the incident in his village and became perturbed
and this was quite natural. On the contrary, there is no
evidence that accused Sadakat Ali contacted the authorities on
coming to know that his tenant or his partner (Md. Arif @
Ashfaq ) was involved in such a grave incident. Accused
Sadakat Ali is totally silent in his statement recorded u/s 313
Cr.P.C about his conduct and behaviour after the incident and
the fact that his tenant was involved in the incident. In such a
situation, a normal citizen would have immediately contacted
the authorities but there is no such claim on the part of
accused Sadakat Ali. This shows his guilty intention. Not
only this he resisted the police action and could be arrested
only on 22.12.2001, when warrants were issued against him by
the court. Had he been innocent, he would have approached
the police at the very moment, it became known that his tenant
or his partner, as claimed by him, was involved in the incident.
FIR No. 688/00, PS Kotwali
: 339 :
454. I have already held that PW-225 Sh. Md. Ahmad has
deposed that he had seen accused Md. Arif @ Ashfaq and
Babar Mohsin visiting his (Sadakat Ali) house and his
statement is reliable. There is no evidence that Sadakat Ali and
Babar Mohsin are known to each other and their meetings can
be explained in any other manner. Apparently seen, visits by a
tenant to the house of his landlord do not indicate anything
wrong and it can be a normal activity. But here, when seen in
the background of the facts, circumstances and evidence
referred to above, it does not indicate that it was in the ordinary
course of human activity. The meetings of the three accused,
who are apparently unknown to each other indicate that
Sadakat Ali also knew that Md. Arif @ Ashfaq was a Pak
national who entered India illegally to commit offences
punishable with death or life imprisonment and he concealed
this from authorities. This fact is further strengthened by the
record of their telephonic conversation. Telephone no.
3216574 is installed at his (Sadakat Ali) residence and mobile
no. 9811242154 has already been held to be that of Md. Arif @
Ashfaq . Ex. 198/E, telephone call detail, placed on record by
FIR No. 688/00, PS Kotwali
: 340 :
PW-198 Sh. Rajiv Pandit, indicate that he had spoken to Md.
Arif @ Ashfaq for fourteen times. As per Sadakat Ali, he had
let out his premises no. 18-C, Gaffur Nagar, Okhla, Delhi to
Faisal Mohd. Khan. In such a situation, there was no need for
him to be in telephonic contact with his partner or for the
partner to visit the house of the landlord so frequently as
claimed by PW-225 Md. Ahmad.
455. Conspiracy is hatched in privacy and is executed in darkness
and there could be no direct evidence regarding conspiracy and
it has to be inferred only from the facts and circumstances of
the case. In this regard, I would like to quote paragraphs 20,
21 and 22 of “Devender Pal Singh (Supra)” as under :-
“20. As noted above, the essential ingredient of the
offence of criminal conspiracy is the agreement to commit
an offence. In case where the agreement is for
accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be
proved by the prosecution because in such a situation
criminal conspiracy is established by proving such an
agreement. Where the conspiracy alleged is with regard to
commission of serious crime of the nature as contemplated
in Sec. 120-B read with the proviso to sub-section (2) of
Section 120A-, then in that even mere proof an agreement
FIR No. 688/00, PS Kotwali
: 341 :
between the accused for commission of such a crime alone
is enough to bring about a conviction under Section 120-B
and the proof of any overt act by the accused or by any one
of them would not be necessary. The provisions, in such a
situation, do not require that each and every person who is a
party to the conspiracy must do some overt act towards the
fulfillment of the object of conspiracy, the essential
ingredient being an agreement between the conspirators to
commit the crime and if these requirements and ingredients
are established, the act would fill within the trapping of the
provisions contained in Section 120-B. (See : S.C. Bahri
Vs. State of Bihar AIR 1994 SC 2420).”
“21. The conspiracies are not hatched in open, by their
nature, they are secretly planned, they can be proved even
by circumstantial evidence, the lack of direct evidence
relating to conspiracy has no consequence. (See : E.K.
Chandrasenan Vs. State of Kerala AIR 1995 SC 1066) “
22. In Kehar Singh and Ors. Vs. State (Delhi
Admn.) AIR 1988 SC 1883 at page 1954, this court
observed : -
“.....Generally, a conspiracy is hatched in secrecy
and it may be difficult to adduce direct evidence of
the same. The prosecution will often rely on
evidence of acts of various parties to infer that they
were done in reference to their common intention.
FIR No. 688/00, PS Kotwali
: 342 :
The prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be
undoubtedly proved by such evidence direct or
circumstantial. But the Court must enquire whether
the two persons are independently pursuing the
same end or they have come together to the pursuit
of the unlawful object. The former does not render
them conspirators, but the latter does. It is,
however, essential that the offence of conspiracy
required some kind of physical manifestation of
agreement. The express agreement, however, need
not be proved. Nor actual meeting of the two
persons is necessary. Nor it is necessary to prove
the actual words of communication. The evidence
as to transmission of thoughts sharing the unlawful
design may be sufficient. Conspiracy can be
proved by circumstances and other materials. (See
: State of Bihar Vs. Paramhans 1986 Pat LJR
688). 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
FIR No. 688/00, PS Kotwali
: 343 :
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, so
long as it is known that the collaborator would put
the goods or service to an unlawful use. (See : State
of Maharashtra Vs. Som Nath Thapa ( 1996
Cr.LJ 2448 at p. 2453 (SC).”
456. A contention was also raised that Rehmana Yusuf Farukhi
is wife of accused Md. Arif @ Ashfaq and as such she cannot
be held guilty for harbouring him. However, her marriage, if it
actually took place at all, took place on 8.12.2000, but she
harboured him much before the date and as such the protection
of exception to Section 216 IPC is not available to her.
457. On the basis of the articles recovered, telephonic contacts,
meetings and letter referred to above, it has been strongly urged
by the learned Special Public Prosecutor that the three accused
Sadakat Ali, Babar Mohsin and Rehmana Yusuf Farukhi, not
merely harboured Md. Arif @ Ashfaq a Lashkar-e-Toiba
militant and concealed his designs, but actively participated in
the conspiracy u/s 120-B IPC. However, a careful analysis of
these facts do not suggest that three accused were in agreement
with him to commit crimes of murder etc. There is no physical
FIR No. 688/00, PS Kotwali
: 344 :
manifestation of such an agreement. The willingness of the
three accused to harbour him is fully manifested. Accused Md.
Arif @ Ashfaq wrote letter Ex. PW-10/C to accused Babar
Mohsin and on the basis of the letter, he is presumed to know
his reality. Babar Mohsin and Md. Arif @ Ashfaq used to
meet Sadakat Ali, as such Sadakat Ali is also presumed to
know the reality of Md. Arif @ Ashfaq. Diary with Pakistan
numbers, visa form of Pakistan and other articles were
recovered from the house of Rehmana Yusuf Farukhi and
these indicate that she also knew his reality. As such, the three
accused can be held to be having knowledge of his reality as a
Pak national and Lashkar-e-Toiba militant, but cannot be held
to share and agree with his designs.
458. As per the order mark 230/D9 dated 14.08.2000, Delhi
police had ordered to apprehend the militants belonging to
Lashkar-e-Toiba as they might attack important targets
including Red Fort. I take judicial notice of this official order.
459.I, accordingly, hold that accused Sadakat Ali, Babar Mohsin
and Rehmana Yusuf Farukhi provided shelter to accused Md.
Arif @ Ashfaq in Delhi at 308-A, DDA Flat, Gazhipur, Delhi
FIR No. 688/00, PS Kotwali
: 345 :
and at house no. 18-C, Gaffur Nagar, Okhla, Delhi and
concealed his designs from the authorities. However, the
evidence is difficient to hold that accused Rehmana Yusuf
Farukhi, Sadakat Ali and Babar Mohsin were party to
conspiracy to commit murder of those, who come in the way of
Md. Arif @ Ashfaq and his associates in waging war against
Government of India.
460. Now the question is : Whether the three accused can be held
guilty u/s 118 IPC without a formal charge ? All the three
accused stand charged u/s 120-B IPC along with other accused.
The contents of charge u/s 120-B IPC are almost same as are
required for Section 118 IPC and the accused are aware of the
case to be answered by them. In fact u/s 120-B IPC, they
stand charged with a much graver office. As such when a
higher offence is not proved, but a lesser offence is proved,
accused can be convicted for the lesser offence without any
formal charge. The essence of the crime u/s 118 IPC consists
in the facility given by concealment to the offender for the
commission of the crime. Here, the accused facilitated the
commission of crime of murder of three army personnels by
FIR No. 688/00, PS Kotwali
: 346 :
concealment and by non-disclosure of criminal designs of
accused Md. Arif @ Ashfaq and his co-accused. The accused,
as men of public, were under obligation to disclose the designs
of accused Md. Arif @ Ashfaq. As such the accused Sadakat
Ali, Babar Mohsin and Rehmana Yusuf Farukhi have
committed the lesser offence punishable u/s 118 IPC.
461. In this regard, I am fortified by an authority reported as
“K. Prema S. Rao and Anr. Vs. Yadla Srinivasa Rao and
Ors.” 2002 VIII AD (S.C.) 15, Criminal Appeal No. 1457 of
1995”, wherein while dealing with a similar question, Hon'ble
Supreme Court observed as under :-
“As provided in Section 215 of Cr. P.C. Omission to
frame charge under Section 306 IPC has not resulted
in any failure of justice. We find no necessity to
remit the matter tot he trial court for framing charge
under Section 306 IPC and direct a retrial for that
charge. The accused cannot legitimately complain of
any want of opportunity to defend the charge under
section 306, IPC and a consequent failure of justice.
The same facts found in evidence, which justify
conviction of the appellant under Section 498A for
cruel treatment of his wife, make out a case against
him under Section 306 IPC of having abetted
FIR No. 688/00, PS Kotwali
: 347 :
commission of suicide by the wife. The appellant
was charged for an offence of higher degree causing
“dowry death” under Section 304B which is
punishable with minimum sentence of seven years
rigorous imprisonment and maximum for life.
Presumption under Section 113A of the Evidence
Act could also be raised against him on same facts
constituting offence of cruelty under Section 498A
IPC. No further opportunity of defence is required to
be granted to the appellant when he had ample
opportunity to meet the charge under Section 498A
IPC.”
462. Accused Sadakat Ali also did not inform the authorities
about keeping a foreigner in his house. Now the question is :
Whether he had informed the police about letting out his
premises No. 18-C, Gaffur Nagar, Okhla, Delhi. It is argued
for accused Sadakat Ali that for not informing the police, he
has already been convicted and sentenced vide order dated
10.07.2001 in FIR No. 13/2001, Police Station New Friends
Colony u/s 188 IPC. He has also placed a copy of FIR on
record. However, I find that this is contrary to record. In that
case, the premises let out was A-18, Gaffur Nagar, Okhla but
the premises in question is 18-C, Gaffur Nagar, Okhla. The
FIR No. 688/00, PS Kotwali
: 348 :
accused has as such tried to mislead the court by citing a court
order which was applicable to a different premises. It is not
his case that both the premises are one and same. I,
accordingly, hold that accused did not inform the police about
letting out his house to Md. Arif @ Ashfaq . He has, as such,
violated the notification Ex. PW-73/A issued by the
Commissioner of Police, Delhi and Ex. PW-230/U6 issused by
Government of India.
463. Now, I shall take up the case of accused Md. Arif @
Ashfaq , Devender Singh, Rajiv Malhotra and Shahanshah
Alam regarding procuring a fake driving licence. The
allegations against these accused are that Md. Arif @ Ashfaq
wanted to obtain a fake driving licence and for that he obtained
driving training at Seven Star Motor Driving College, Sarai
Jullena, Delhi, where accused Devender Singh was manager
and paid him Rs. 2,000/- for procuring him a fake driving
licence. Accused Devender Singh contacted his cousin accused
Rajiv Malhotra, who runs Star Motor Driving College at
Ghaziabad, for this purpose and paid him Rs. 900/- and also
gave him photograph and particulars of Md. Arif @ Ashfaq .
FIR No. 688/00, PS Kotwali
: 349 :
Accused Rajiv Malhotra contacted accused Shahanshah Alam,
who was an employee of Akash Deep Motor Driving College at
Ghaziabad for obtaining forged driving licence for Md. Arif @
Ashfaq and also paid him Rs. 600/- along with photograph and
particulars of Md. Arif @ Ashfaq . It is alleged that all the
four accused were in conspiracy to commit the murder of all
those who resist the action of Md. Arif @ Ashfaq and his
associates in waging war against the Government of India and
also to forge a driving licence for accused Md. Arif @ Ashfaq .
464. It is submitted for accused Md. Arif @ Ashfaq by Sh. R.M.
Tufail, learned defence counsel, that licence has been obtained
in a legal manner from Ghaziabad Transport Authority, as
such the accused has not committed any offence. In this
regard, he has invited my attention to the evidence of PW-16
Smt. Mamta Sharma (Asstt. Regional Transport Officer,
Ghaziabad), who deposed that she had passed the aforesaid
driving licence. For accused Devender and Shahanshah Alam,
it has been submitted by Sh. Anil Aggarwal that they were not
party to any conspiracy with accused Md. Arif @ Ashfaq
either to wage war against the Government of India or to
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commit murder of anyone who came forward to resist their
action or to forge documents for providing Indian identity to
accused Md. Arif @ Ashfaq by procuring a forged driving
licence. It is submitted that there is no evidence against the
two accused suggesting that they either obtained money from
him or forged any document or helped him otherwise in
procuring a forged driving licence. Similar submissions have
been made for accused Rajiv Malhotra, by Sh. P.R. Aggarwal,
learned defence counsel.
465. Section 415 IPC provides as under :-
“Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver
any property to any person, or to consent that any
person shall retain any property, or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were
not so deceived, and which act of omission causes or
is likely to cause damage or harm to that person in
body, mind, reputation or property, is said to
“cheat”.
Explanation : A dishonest concealment of facts is a
deception within the meaning of this Section.
466.Section 420 IPC lays down as under :-
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“Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any
person, or to make, alter or destroy the whole or any
part of a valuable security, or anything which is
signed or sealed, and which is capable of being
converted into a valuable security, shall be punished
with imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine.”
467. Section 463 IPC provides as under :-
“Forgery---- Whoever makes any false documents or
false electronic record or part of a document or
electronic record, with intent to cause damage or
injury to the public or to any person, or to support
any claim or title, or to cause any person to part with
property, or to enter into any express or implied
contract, or with intent to commit fraud or that fraud
may be committed, commits forgery.”
468. Section 468 IPC provides as under :-
“Whoever commits forgery, intending that the
document forged shall be used for the purpose of
cheating, shall be punished with imprisonment or
either description for a term which may extend to
seven years, and shall also liable to fine.”
469. Section 471 IPC lays down as under :-
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“Whoever fraudulently or dishonestly uses as
genuine any document which he knows or has reason
to believe to be a forged document, shall be punished
in the same manner as if he had forged such
document.”
470. Section 474 IPC provides as under :-
“Whoever has in his possession any document,
knowing the same to be forged, and intending that
the same shall fraudulently or dishonestly be used as
genuine, shall, if the document is one of the
description mentioned in Section 466 of this Code,
be punished with imprisonment of either description
for a term which may extend to seven years, and
shall also be liable to fine ; and if the document is
one of the description mentioned in Section 467,
shall be punished with imprisonment for life, or with
imprisonment of either description, for a term which
may extend to seven years, and shall also be liable to
fine.”
471. The first question that has to be answered is : Whether
accused Devender Singh, Rajiv Malhotra and Shahanshah
Alam were part of the conspiracy u/s 120-B IPC to commit
murder of those who came to resist the action of accused Md.
Arif @ Ashfaq and his associates ?
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472. PW-181 Sh. Moti Lal has deposed that he had trained
accused Md. Arif @ Ashfaq at Seven Star Motor Driving
College, where accused Devender Singh was manager. PW-
210 Sh. Sushil Malhotra has also deposed that Devender Singh
was his manager at Seven Star Motor Driving College. He
also deposed that Rajiv Malhotra, his cousin, runs Star Motor
Driving College, at Ghaziabad. PW-28 Sh. Abhinender Jain
has deposed that Book Ex. PW-28/H was seized from Seven
Star Motor Driving, on which page Ex. PW-28/I shows that
Ashfaq Ahmad Khan @ Md. Arif @ Ashfaq had obtained
training from the aforesaid college. PW-216 Dr. M.A. Ali has
also deposed that this handwriting is in the handwriting of
accused Devender Singh. Now the question is : Whether
merely by giving training to Md. Arif @ Ashfaq , accused
Devender Singh has become a party to the criminal conspiracy
? In the training college, accused Md. Arif @ Ashfaq had
given his name and address as Ashfaq Ahmad Khan s/o Akram
Khan r/o A-18, Gaffur Nagar, Okhla, New Delhi, with mobile
no. 9810263721.
473. PW-29 Sh. Naresh Kumar has deposed that Star Motor
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Driving College in Ghaziabad is registered in the name of Rajiv
Malhotra and he has also admitted this in his statement
recorded u/s 313 Cr.P.C vide question No. 52.
474. Accused Shahanshah Alam has also admitted that he was an
employee of Akashdeep Motor Driving College, which has
been corroborated by Ex. PW-18/A, list of colleges and their
employees, wherein he has been shown as an ex-employee.
475. Prosecution has examined PW-5 Sh. Pradeep Kumar
Srivastava, Junior clerk, ARTO Ghaziabad, PW-16 Smt.
Mamta Sharma ARTO Ghaziabad, PW-17 Mahesh Kumar
Trivedi junior Clerk of RTO Office, Ghaziabad and PW-90
Hazarul Hassan, ARI Technical, ARTO Ghaziabad. All these
officials have deposed that the driving licence Ex. PW-13/A of
Md. Arif @ Ashfaq was issued from their Authority under the
signature of PW-16 Smt. Mamta Sharma.
476. Prosecution has also examined PW-71 Sh. Mahender
Kumar, PW-72 Sh. Chand Ali, PW-207 Sh. Satish Garg, PW-
215 Sh. Yogesh Tyagi. However, all these witnsses have not
supported the prosecution version against accused Shahanshah
Alam.
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477. PW-230 Ins. Surender Kumar Sund, PW-169 SI Sunil
Kumar and PW-227 SI Amardeep Sehgal visited the Star
Motor Driving College and house no-184 Gulzare Ibrahim,
Khatta Road, Meerut, residence of accused Shahanshah Alam,
and seized some forms Ex. PW-169/A to D-3 from the two
places which were of similar type as were used in preparing the
driving licence of Md. Arif @ Ashfaq . Similarly, PW-230 Ins.
Surender Kumar Sund also seized the forms used in the
preparation of driving licences of Chand, Mahender and Kallu
from the Ghaziabad Transport Authority in the presence of
PW-5 Sh. Pradeep Kumar Srivastava and PW-17 Mahesh
Kumar Trivedi on the ground that handwriting in these forms
was similar to the one used in the preparation of the driving
licence of Md. Arif @ Ashfaq . Handwriting opinion of PW-
216 Dr. M.A. Ali was also obtained regarding this, who opined
that some handwriting in the forms of Md. Arif @ Ashfaq ,
Chand, Mahender and Kallu was similar.
478. Md. Arif @ Ashfaq has obtained the aforesaid driving
licence on the basis of a learning licence Ex. PW-13/C issued
from Sarai Kale Khan Transport Authority, Delhi with address
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B-17, Jungpura, Delhi. As per PW-6 Sh. Narain Singh, UDC
of Sarai Kale Khan Transport Authority, this licence was never
issued from the aforesaid authority and as per PW-52 Sh. Ajit
Singh, Md. Arif @ Ashfaq never resided at B-17, Jungpura,
Delhi. In proving his residential status of Ghaziabad, Md. Arif
@ Ashfaq had used photocopy of ration card Ex. PW-13/E
issued at the address of 102, Kela Bhatta, Ghaziabad.
However, as per PW-1 Sh. Azad Khalid, resident of 102, Kela
Bhatta, Ghazibad, Md. Arif @ Ashfaq never resided there and
as per PW-2 Sh. Yashpal Rana and PW-3 Sh. Rajbir Singh both
officials of Food & Supply Department, Ghaziabad, no ration
card was issued in his name at the aforesaid address.
479. Now the question is : Who forged these two documents i.e.
Learning licence Ex. PW-13/C and the ration card Ex. PW-
13/E ? In this regard, there is no evidence on the file, which
could connect any of the accused with this forgery and the only
presumption is that these documents were forged and used by
Md. Arif @ Ashfaq alone as the two were used for his benefit
only.
480. The only evidence available against accused Devender
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Singh is that he was manager at Seven Star Motor Driving
College and instructed PW-181 Sh. Moti Lal, an employee of
the college, to give driving training to accused Md. Arif @
Ashfaq . The only evidence available against accused Rajiv
Malhotra is that from his college, forms similar to one used in
the preparation of the driving licence in the name of accused
Md. Arif @ Ashfaq at Sarai Kale Khan Transport Authority,
were recovered.
481. The evidence available against accused Shahanshah Alam is
that he was an employee of Akashdeep Motor Driving College
and used to look after the work of said college. PW-94 Col.
Nirmal Singh, owner of Akashdeeep Motor Driving College,
has deposed in this regard. The other evidence available
against accused Shahanshah Alam is that the form Ex. PW-
13/D of Md. Arif @ Ashfaq, was bearing a stamp of
Akashdeep Motor Driving College and he tore away the
portion of the form where stamp was affixed.
482. Now the questions are : Whether the driving licence of
accused Md. Arif @ Ashfaq was got issued by accused
Shahanshah Alam ? Whether accused Devender Singh, Rajiv
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Malhotra and Shahanshah Alam are connected with each other
so as to make them party to the conspiracy to forge a driving
licence and to kill those who resists the action of Md. Arif @
Ashfaq and his associates ? Whether the driving licence was
used by Md. Arif @ Ashfaq knowing the same to be forged
one ?
483. It is in evidence that licence Ex. PW-13/A of accused Md.
Arif @ Ashfaq was passed by PW-16 Mamta Sharma on the
basis of a learning licence Ex. PW-13/D shown to be issued by
Sarai Kale Khan Authority and on the basis of ration card Ex.
PW-13/E issued at 102, Kela Bhatta, Ghaziabad. However,
the only evidence against accused Devender is that accused
Md. Arif @ Ashfaq obtained training at Star Motor Driving
college, where he was manager. There is no other evidence on
record against him and on the basis of that piece of evidence
only no inference can be drawn against him. Similarly, the
only evidence against accused Rajiv Malhotra is that he is
running Star Motor Driving college at Ghaziabad and some
forms similar to the forms used in the issuance of driving
licence of Md. Arif @ Ashfaq were seized from his driving
FIR No. 688/00, PS Kotwali
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college. From this piece of evidence also, no adverse
inference can be drawn against him. As far as accused
Shahanshah Alam is concerned, there is not much evidence
against him also. The only evidence available against him is
that he was an employee of Akashdeep Motor driving College.
As per PW-194 Col. Nirmal Singh Sirohi, owner of Akashdeep
Motor driving college, there were other employees with
accused Shahanshah Alam. Similarly, PW-16 Smt. Mamta
Sharma has also deposed that many officials of Akashdeep
Motor driving college used to attend the ARTO for the work of
the driving college. PW-90 Hazarul Hassan, Inspector of the
authority, who passed the driving licence of Chand, Mahender,
Rajender, referred to by Akashdeep Motor driving College and
the handwriting of these forms is similar to the handwriting
used in the form of Md. Arif @ Ashfaq, has also deposed that
there were several employees of Akashdeep Motor Driving
college and Shahanshah was one of them and he used to attend
the office of Transport Authority. Similarly, PW-17 Mahesh
Kumar Trivedi is also not sure as to who tore away the portion
of Ex. PW-13/B, form of Md. Arif @ Ashfaq for issuing
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permanent driving licence, where the stamp of Akashdeep
motor driving college was affixed, though, he claimed that
Shahanshah might have torn it, but he is not sure. As such, all
the four officials are not sure about the role of Shahanshah
Alam as more than one employee used to visit the office of
Transport Authority for licencing work. Similary, PW-216 Dr.
M.A. Ali has deposed that handwriting on the form of Md. Arif
@ Ashfaq and that of Chand, Mahender and Rajender is
similar, but that fact itself is not sufficient to connect accused
Shahanshah Alam with the crime. The evidence against him is
not clinching as PW-16 Mamta Sharma and PW-90 Hazarul
Hassan, the two main witnesses, are not convincing in their
statements against him.
484. However, it is the admitted case of accused Md. Arif @
Ashfaq that he obtained the driving licence Ex. PW-13/A from
Ghaziabad Transport Authority, but the documents and the
addresses furnished by him for obtaining the driving licence
have been found to be forged and fabricated. He was not
entitled to be issued a driving licence on the basis of those
documents. As such he in conspiracy with unknown persons,
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induced and cheated the Transport Authority into issuing a
driving licence to him.
485. Now I shall take up the case of Md. Arif @ Ashfaq ,
Matloob Alam and Mool Chand Sharma. The allegations
against them are that accused Matloob Alam used to run a Fair
Price Shop under the name and style of Matloob Store at Okhla
and accused Mool Chand Sharma was Food Inspector of the
area. Both of these accused joined conspiracy with accused
Md. Arif @ Ashfaq in killing of those who would resist the
action of Md. Arif @ Ashfaq and his associates and also
conspired with him to forge a ration card in his name and in
pursuance to the conspiracy, they forged a ration card Ex. PW-
164/A with address, 17/12, Okhla, Delhi.
486. It is submitted by Sh. R.M. Tufail, learned defence counsel
for accused Md. Arif @ Ashfaq that he had obtained the ration
card from office and the same is not forged one. For accused
Matloob Alam, it is submitted that ration card was not forged
by him, but was issued by the officials of Food & Supply
Office and the handwriting report of PW-216 Dr. M. A. Ali is
also not reliable as the same were prepared at the instance of
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the police. PW-174 Sh. Kushal Kumar is a procured witness
as he himself was an accused and no reliance can be placed on
his testimony. It is repeatedly emphasized by Sh. Anil
Aggarwal that accused Matloob had no role to play in the
preparation of the said ration card. Similar submissions have
been made by Sh. D.K. Sharma, learned defence counsel for
Mool Chand Sharma. He has submitted that there is no
evidence against accused Mool Chand Sharma and PW-174 Sh.
Kushal Kumar is a tainted witness as his name figures as an
accused in charge sheet.
487. Ration card Ex.PW-164/A has been issued in the name of
accused Md. Arif @ Ashfaq at address F-17/12, Batla House,
Jagabai. As per PW-65 Malik Irfan Chaudhary, Md. Arif @
Ashfaq never resided there. Now the question is : Whether
accused Matloob Alam and accused Mool Chand Sharma were
in conspiracy with accused Md. Arif @ Ashfaq in forging the
ration card ? Whether accused Matloob used to cheat general
public, particularly those referred to in the charge of FIR no.
65/01, Police Station New Friends Colony, for procuring them
ration card ?
FIR No. 688/00, PS Kotwali
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488. Prosecution has examined PW-7 Sh. S.R. Raghav, Food &
Supply Officer, Okhla, PW-164 Ms. Anju Goel, UDC of the
aforesaid office, PW-165 Sh. Dharambir Sharma, Food &
Supply Officer, PW-172 Sh. Manohar Lal, UDC of the
aforesaid office, PW-191 Ms. Sunita, UDC and PW-195
Rakesh Behari on the issuance of ration cards from the office
of Circle-6, Okhla. Similarly, PW-203 B.R. Joshi and PW-
151 Azmat Hussain have deposed that they obtained the ration
cards Exs. PW-203/A and PW-205/B through accused Matloob
Alam. PW-216 Dr. M.A. Ali has examined the specimen
handwriting of accused Mool Chand Sharma and Matloob as
well as the handwriting on the ration cards. PW-165
Dharamvir Sharma, Food & Supply Officer and PW-7 Sh. S.R.
Raghav have deposed that ration card Exs. PW-203/A and PW-
205/B of B.R. Joshi and Azmat Imam Khan were not issued
from their office. This clearly shows that accused Matloob
forged the ration card after obtaining money from the aforesaid
two persons Sh. B.R. Joshi and Sh. Azmat Imam Khan.
Similarly, PW-216 Dr. M.A. Ali has deposed that ration card
Ex. PW-164/A of accused Md. Arif @ Ashfaq is in the
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handwriting of accused Matloob Alam. PW-145 Sh. Faiz
Ahmad Khan has also deposed that accused Md. Arif @
Ashfaq was introduced to accused Matloob by him. Similarly,
PW-174 Sh. Kushal Kumar has deposed that accused Matloob
did some cuttings and overwriting in his register after the case.
All the witnesses have been cross-examined in detail by the
learned defence counsel and there is nothing of any
significance which could discredit their version. The evidence
is natural, credible and reliable. All this evidence clearly
indicate that accused Matloob forged ration card Ex. PW-
164/A, consequent to conspiracy to give Md. Arif @ Ashfaq
an Indian identity. Similarly, accused Matloob cheated Sh.
B.R. Joshi and Sh. Azmat Imam Khan by forging their ration
cards Exs. PW-203/A and PW-205/B and committed forgery
for the purpose of cheating.
489. As far as the accused Mool Chand Sharma is concerned,
there is only one witness against him and he is PW-174 Kushal
Kumar. He deposed that when Md. Arif @ Ashfaq came to his
shop for getting the ration card registered, he told him that he
had been sent by accused Mool Chand and Matloob Alam. He
FIR No. 688/00, PS Kotwali
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had informed Mool Chand about this and he admitted that he
had sent Md. Arif @ Ashfaq. When Matloob did overwriting
and cutting in his register, he had also informed Mool Chand
Sharma, but he took no action. However, it is also in evidence
that Kushal Kumar was also cited as an accused in the charge-
sheet, but was later on not charge sheeted. In the absence of
any other evidence i.e., any positive fact or circumstance on
record, I find it difficult to put reliance on the testimony of
PW-174 Kushal Kumar as far as accused Mool Chand Sharma
is concerned. No positive act is attributed to him. There is no
evidence worth the name to suggest that both accused Matloob
Alam and Mool Chand Sharma shared and agreed with the
conspiracy of Md. Arif @ Ashfaq to commit murder of those
who resisted his action. But it has been clearly established that
accused Matloob in conspiracy with accused Md. Arif @
Ashfaq committed forgery for the purpose of cheating and also
cheated Azmat Imam Khan and B.R. Joshi and also committed
forgery for the purpose of cheating by forging their ration
cards. Accused Mool Chand Sharma is charged with a certain
kind of a non-judicial confession and non-action by a witness,
FIR No. 688/00, PS Kotwali
: 366 :
who himself figured in the charge sheet, but was not ultimately
charge-sheeted and has been examined as a witness by the
prosecution. There is no evidence to connect him with any
type of conspiracy as the witness, who deposed against him, is
not credible. Other witnesses have not deposed a word against
accused Mool Chand Sharma.
490. In view of the above discussion, I hold that accused Md.
Arif @ Ashfaq entered India along with his associates (since
Proclaimed offenders or killed) in India in December 1999
from Pakistan and hatched a conspiracy with Nazir Ahmad
Qasid and Farukh Ahmad Qasid and other co-accused (since
P.O., or killed) to wage war against the Government of India
and also to kill anyone who came in their way to resist their
action and accordingly he set up bases in Delhi and procured a
driving licence by cheating Ghaziabad Transport Authority and
also forged a ration card in conspiracy with accused Matloob.
He set up his base at 308-A, DDA Flats, Gazhipur, 18-C,
Gaffur Nagar and G-73 Muradi Road, in which accused
Rehmana Yusuf Farukhi, Babar Mohsin and Sadakat Ali
actively helped him and concealed his designs of committing
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offences punishable with death or imprisonment with life. I
also, hold that accused Md. Arif @ Ashfaq along with his co-
accused (since P.O., or killed) entered Red Fort on 22.12.2000
in pursuance to their conspiracy and attacked army camp of 7th
Rajputana Rifle and killed three army jawans namely Ashok
Kumar, Uma Shankar and Abdullah Thakur and thereafter
escaped from there. I also hold that at the time of apprehension
of Md. Arif @ Ashfaq , pistol Ex. PW-148/1 was recovered
from him and subsequently he also got recovered from his
hideout G-73, Muradi Road, where his co-accused Abu Shamal
was killed, one A.K.56 rifle and large number of cartridges
and two hand-grenades. On the same day, he also got
recovered one A.K.56 rifle and four hand-grenades and other
items from behind the Red Fort. I also hold that on 01.01.2001,
he also got recovered three hand-grenades from the area of
Jamia Milia University. Earlier on 23.12.2000, similar type of
A.K.56 rifle was recovered from Vijaya Ghat.
491. In view of the above discussion, I find that chain of events
has been established which connects aforesaid accused i.e. Md.
Arif @ Ashfaq , Nazir Ahmad Quasid and Farukh Ahmad
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Quasid and this chain of events has been established on the
basis of facts and circumstances, which have been clearly
proved on the file beyond all reasonable doubt. Accused Md.
Arif @ Ashfaq and Matloob Alam stand connected in the
commission of forgery of ration card and accused Md. Arif @
Ashfaq stands connected with accused Rehmana Yusuf
Farukhi, Babar Mohsin and Sadakat Ali as they provided him
shelter and also concealed his designs.
492. I also hold that prosecution has been successful in proving its
case beyond reasonable doubt against accused Md. Arif @
Ashfaq @ Abu Hamad, Nazir Ahmad Quasid, Farukh Ahmad
Quasid, Rehmana Yusuf Farukhi, Sadakat Ali, Babar Mohsin
and Matloob Alam. However, prosecution has not been
successful in proving the charges against accused Devender
Singh, Rajiv Malhotra, Shahanshah Alam and Mool Chand
Sharma beyond reasonable doubt.
493. Moreover, there is no evidence that accused Babar Mohsin,
Rehmana Yusuf Farukhi, Sadakat Ali, Matloob Alam, Rajiv
Malhotra, Devender Singh, Shahahshah Alam and Mool Chand
Sharma were part of the conspiracy u/s 120-B IPC to commit
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the murder of those who would resist the action of accused Md.
Arif @ Ashfaq and his associates in waging war against
Government of India.
494. Similarly, there is no evidence that accused Mool Chand
Sharma was part of the conspiracy to forge ration card of
accused Md. Arif @ Ashfaq .
495. Similary, there is no evidence that accused Devender Singh,
Rajiv Malhotra and Shahanshah Alam were party to the
conspiracy to forge driving licence of Md. Arif @ Ashfaq .
496. Similarly, there is no evidence that accused Farukh Ahmad
Quasid and Nazir Ahmad Quasid sheltered or harboured
accused Md. Arif @ Ashfaq at their house, not they can be
punished for the same as they themselves were the offenders.
Though it stands proved that they were in conspiracy with him.
497. I, accordingly, hold accused Md. Arif @ Ashfaq , Nazir
Ahmad Qasid and Farukh Ahmad Qasid guilty u/s 121-A IPC
for conspiracy to wage war against the Government of India
and u/s 120-B IPC for conspiracy to kill anyone who came in
their way to resist their action.
498. I, also hold accused Md. Arif @ Ashfaq , Nazir Ahmad
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Qasid and Farukh Ahmad Qasid guilty u/s 121 IPC for waging
war against the Government of India.
499. I also hold accused Md. Arif @ Ashfaq guilty u/s 120-B r/w
302 IPC for committing the murder of Naik Ashok Kumar,
Uma Shankar and Abdullah Thakur inside Red Fort on
22.12.2000.
500. I also hold accused Md. Arif @ Ashfaq guilty u/s
186/353/120-B IPC for obstructing and assaulting public
servants Naik Ashok Kumar, Uma Shankar and Abdullah
Thakur, while on duty inside Red Fort on 22.12.2000.
501. I also hold accused Md. Arif @ Ashfaq guilty u/s 25 of the
Arms Act for possessing illegally a 9 mm pistol on 26.12.2000
at 308-A, DDA Flat, Gazhipur, Delhi.
502. I also hold accused Md. Arif @ Ashfaq guilty u/s 4 of the
Explosive Substances Act for possessing and keeping three
hand-grenades at Jamia Milia Islamia University for causing
danger to public life or property.
503. I also hold accused Md. Arif @ Ashfaq guilty u/s 14 of the
Foreigner's Act for entering India illegally.
FIR No. 688/00, PS Kotwali
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504. I also hold accused Md. Arif @ Ashfaq guilty u/s 420 IPC
r/w 120-B IPC for cheating the Transport Authority Ghaziabad.
505. I also hold accused Md. Arif @ Ashfaq guilty u/s
468/471/474 IPC for committing forgery for the purpose of
cheating, using forged documents and keeping the same in his
possession.
506. I also hold accused Rehmana Yusuf Farukhi, Babar Mohsin
and Sadakat Ali guilty u/s 216 IPC and Section 118 IPC for
habouring Md. Arif @ Ashfaq and concealing his designs.
507. I also hold accused Sadakat Ali guilty u/s 14 of Foreigner's
Act for keeping a foreigner in his house at 18-C, Gaffur Nagar,
Okhla, Delhi, without information to the authorities.
508. I also hold accused Sadakat Ali guilty u/s 188 IPC for not
informing the police about letting out his house 18-C Gaffur
Nagar, Delhi to accused Md. Arif.
509. I also hold accused Matloob guilty u/s 468 IPC for
committing forgery for the purpose of cheating by forging the
ration card of accused Md. Arif @ Ashfaq .
FIR No. 688/00, PS Kotwali
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510. I also hold accused Matloob Alam guilty u/s 420 IPC for
cheating Sh. B.R. Joshi and Azmat Imam Khan and also u/s
468 IPC for committing forgery for the purpose of cheating.
511. The accused are convicted accordingly.
512. I also acquit accused Mool Chand Sharma, Rajiv Malhotra,
Shahanshah Alam and Devender Singh of all the charges.
513. I also acquit accused Babar Mohsin, Rehmana Yusuf
Farukhi, Sadakat Ali and Matloob of the charges u/s 120-B IPC
regarding committing murder of those, who came in the way of
Md. Arif @ Ashfaq and his associates in waging war against
Government of India.
514. I also acquit accused Nazir Ahmad Qasid and Farukh Ahmad
Qasid u/s 216 IPC.
515. Accused Babar Mohsin and Matloob Alam are on bail.
Their bail bonds are cancelled and sureties are discharged and
they be taken into custody forthwith.
516. Bail bonds of accused Devender Singh, Rajiv Malhotra, and
Mool Chand Sharma are also cancelled and their sureties are
discharged.
FIR No. 688/00, PS Kotwali
: 373 :
517. Accused Shahanshah Alam, who is in custody, be set at
liberty at once, if not required to be detained in any other case.
518. Let the convicts be heard on the point of sentence.
Announced in open court (O.P. SAINI)on 24.10.2005 Addl. Sessions Judge : Delhi
FIR No. 688/00, PS Kotwali
: 374 :
IN THE COURT OF SH. O.P. SAINI : ASJ : DELHI
S.Cs. No. 01/05, 02/05, 05/05, 07/05, 08/05, 09/05, 10/05 &
11/05
State Vs.
1 Md. Arif @ Ashfaq @ Abu Hamad s/o Md. Akram
2 Rehmana Yusuf Farooqui d/o Nawab Mohammed
Yusuf Farooqui
3 Nazir Ahmad Qasid s/o Gulam Mohammad Qasid
4 Farooq Ahmad Qasid s/o Nazir Ahmad Qasid
5 Babar Mohsin Baghwala s/o Jaleel Ahmad
6 Matloob Alam s/o Mehboob Alam
7 Sadakat Ali s/o Abdul Ali
FIR No. 688/00P.S. KotwaliU/s 302/307/186/353/121/216/201 IPC
25/27/54/59 A. Act & 14 F. Act and4/5 Exp. Sub. Act & u/s 420/468/471/474/34 IPC
State Vs. Md. Arif @ Ashfaq @ Abu Hamad S/o Md. Akram
S.C. No. 4/05FIR No. 03/2001U/s 4/5 Explosive Substances Act
P.S. New Friends Colony
State Vs. Md. Arif @ Ashfaq @ Abu Hamad S/o Md. Akram
S.C. No. 3/05FIR No. 419/2001
FIR No. 688/00, PS Kotwali
: 375 :
U/s 25/54/59 Arms ActP.S. Kalyan Puri.
State Vs. Matloob Alam s/o Mehboob Alam
S.C. No. 6/05FIR No. 65/2001U/s 420/468/471/474/34 IPC
P.S. New Friends Colony
ORDER ON SENTENCE :-
31.10.2005
Pr.: Sh. Bakshish Singh, Ld. Spl. PP for the State with
IO Ins. Surender Sund.
Convicts Md. Arif @ Ashfaq @ Abu Hamad , Nazir
Ahmad Quasid, Farukh Ahmad Quasid, Rehmana Yusuf
Farukhi, Sadakat Ali, Babbar Mohsin and Matloob Alam in
judicial custody, with Sh. R.M. Tufail, Sh. Aman Lekhi, Sh. S.A.
Hasmi and Sh. Anil Aggarwal, Advocates.
1. Vide my separate judgment dated 24.10.2005, Md. Arif @
Ashfaq @ Abu Hamad, a Pak national, Nazir Ahmad Quasid,
Farukh Ahmad Quasid, Rehmana Yusuf Farukhi, Sadakat Ali,
Babbar Mohsin and Matloob Alam have been convicted for
various offences for the incident, which took place inside Red
Fort, Delhi, on 22.12.2000 at about 9.00 pm, in which three
FIR No. 688/00, PS Kotwali
: 376 :
Army personnels namely Uma Shankar, Ashok Kumar and
Abdullah Thakur lost their lives.
2. Convicts referred to above have been convicted as under :-
(i). Md. Arif @ Ashfaq , Nazir Ahmad Qasid and Farukh
Ahmad Qasid have been convicted u/s 121-A IPC for
conspiracy to wage war against the Government of India and
u/s 120-B IPC for conspiracy to kill anyone who came in their
way to resist their action.
(ii) Md. Arif @ Ashfaq, Nazir Ahmad Qasid and Farukh
Ahmad Qasid have also been convicted u/s 121 IPC for
waging war against the Government of India.
(iii) Md. Arif @ Ashfaq has also been convicted u/s 120-B
r/w 302 IPC for committing the murder of Naik Ashok Kumar,
Uma Shankar and Abdullah Thakur, inside Red Fort on
22.12.2000.
(iv) Md. Arif @ Ashfaq has also been convicted u/s
186/353/120-B IPC for obstructing and assaulting public
servants Naik Ashok Kumar, Uma Shankar and Abdullah
Thakur, while on duty inside Red Fort on 22.12.2000.
(v) Md. Arif @ Ashfaq has also been convicted u/s 25 of Arms
FIR No. 688/00, PS Kotwali
: 377 :
Act for possessing illegally a 9 mm pistol on 26.12.2000 at
308-A, DDA Flat, Gazhipur, Delhi.
(vi) Md. Arif @ Ashfaq has also been convicted u/s 4 of the
Explosive Substances Act for possessing and keeping three
hand-grenades at Jamia Milia Islamia University for causing
danger to public life or property.
(vii) Md. Arif @ Ashfaq has also been convicted u/s 14 of the
Foreigner's Act for entering India illegally.
(viii) Md. Arif @ Ashfaq has also been convicted u/s 420 IPC
r/w 120-B IPC, for cheating Transport Authority, Ghaziabad.
(ix) Md. Arif @ Ashfaq has also been convicted u/s 468/471/
474 IPC for committing forgery for the purpose of cheating,
using forged documents and keeping the same in his
possession.
(x) Rehmana Yusuf Farukhi, Babar Mohsin and Sadakat Ali
have been convicted u/s 216 IPC and Section 118 IPC for
habouring Md. Arif @ Ashfaq and concealing his designs.
(xi) Sadakat Ali has also been convicted u/s 14 of Foreigner's
Act for keeping a foreigner in his house at 18-C, Gaffur Nagar,
Okhla, Delhi, without information to the authorities.
FIR No. 688/00, PS Kotwali
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(xii) Sadakat Ali has also been convicted u/s 188 IPC for not
informing the police about letting out his house 18-C Gaffur
Nagar, Delhi to Md. Arif.
(xiii) Matloob Alam has been convicted u/s 468 IPC for
committing forgery for the purpose of cheating by forging the
ration card of Md. Arif @ Ashfaq .
(xiv) Matloob Alam has also been convicted u/s 420 IPC for
cheating Sh. B.R. Joshi and Azmat Imam Khan and also u/s
468 IPC for committing forgery for the purpose of cheating.
3. I have heard the arguments on the point of sentence from both
sides and have carefully gone through the record.
4. It is submitted by Sh. Bakshish Singh, learned Special Public
Prosecutor, that on account of conspiracy to wage war against
the Government of India hatched by Md. Arif @ Ashfaq, Nazir
Ahmad Quasid and Farukh Ahmad Quasid along with their co-
accused (since proclaimed offenders or killed), they waged war
against Govt. of India in which three innocent Army personnels
were killed in Delhi in cold blooded manner. It was a well
planned and organized attack on Army camp inside Red Fort. It
was an attack on the sovereignty and integrity of the country.
FIR No. 688/00, PS Kotwali
: 379 :
The attack was launched at the instance of Lashkar-e-Toiba ,
after setting up bases in Delhi and bringing sophisticated
weapons and was aimed at destabilizing the country. It is
submitted that this makes out the instant case to be the rarest of
the rare type and as such death penalty may be awarded to the
three convicts.
5. It is also submitted that Rehmana Yusuf Farukhi, Sadakat Ali,
Babar Mohsin and Matloob Alam have also committed serious
offences, which facilitated the commission of crime referred to
above, as such they may also be awarded severe punishment.
6. On the other hand, Sh. R.M. Tufail, learned defence counsel
for Md. Arif @ Ashfaq @ Abu Hamad has submitted that his
case does not fall within the category of the rarest of the rare
type of cases. As such, no case is made out to award death
penalty to him. Life sentence is adequate punishment in the
instant case.
7. For Rehmana Yusuf Farukhi, it is submitted by Sh. R.M.
Tufail, ld. defence counsel, that she has suffered about five
years of trial while in judicial custody and as such a lenient
view may kindly be taken.
FIR No. 688/00, PS Kotwali
: 380 :
8. For Sadakat Ali, it is submitted by Sh. R.M. Tufail, learned
defence counsel, that he unintentionally let out his house to
Md. Arif @ Ashfaq and as such lenient view may kindly be
taken. He has also suffered a lot during trial and remained in
custody for about four years.
9. Sh. R.M. Tufail has also filed separate applications praying
that Rehmana Yusuf Farukhi and Sadakat Ali may be released
on probation.
10. For Nazir Ahmad Quasid and Farukh Ahmad Quasid, it is
submitted by Sh. Aman Lekhi, learned defence counsel, that
this is not a case of the rarest of the rare type. As such death
penalty may not be awarded to the them in this case and plea of
the learned Special Public Prosecutor for death penalty to them
is unwarranted. He has also filed written submissions and has
invited my attention to the following authorities :-
1. Hardyal Vs. State of U.P. (1976) 2 SCC 812.
2. Bachan Singh Vs. State of Punjab AIR 1980
SC 898
3. Triveniben Vs. State of Gujarat (1989) 1
SCC 678
4. Lehna Vs. State of Haryana (2002) 3 SCC 76
FIR No. 688/00, PS Kotwali
: 381 :
5. Shiv Mohan Singh Vs. State (Delhi Admn.)
(1977) 2 SCC 238
6. Dalbir Singh & Ors. Vs. State of Punjab
(1979) 3 SCC 745
7. Anshad & Ors. Vs. State of Karnataka
(1994) 4 SCC 381
8. Kehar Singh & Ors. Vs. State (Delhi Admn.)
(1988) 3 SCC 609
11. For Babar Mohsin, it is submitted by Sh. S.A. Hasami, learned
defence counsel, that when he sheltered Md. Arif @ Ashfaq, no
offence was committed, as such he is liable for a very minor
punishment u/s 216 IPC. It is also submitted that at the time of
the commission of crime, he was a young man aged about 25
years. He is the only son of his parents. He has also faced trial
for five years. It is prayed that lenient view may kindly be
taken.
12. For Matloob Alam, it is submitted by Sh. Anil Aggarwal,
learned defence counsel that he is a young person with two
minor children. On account of this case, he has lost his
business. He has faced trial for five years. It is prayed that a
lenient view may kindly be taken and he may be released on
FIR No. 688/00, PS Kotwali
: 382 :
probation. My attention has been invited to the following
authorities :-
1. Naher Singh Vs. State of Punjab 1994
(1) C C Cases 306 (HC)
2. State of UP Vs. Ranjit Singh AIR 1999
SC 1201
3. Bonela Swaminathan Vs. State of AP
AIR 2000 SC 3578(1)
4. Surender Kumar Garg Vs. State of
Uttar Pradesh 1993 (2) CC Cases 277
(SC)
LAW RELATING TO SENTENCE :-
13. I have carefully considered the submissions of both the
parties. Sentence is a difficult question and requires a lot of
consideration. While dealing with the question of sentence,
Hon'ble Supreme Court in an authority reported as B.G.
Goswami Vs. Delhi Administration 1973 SCC (Crl.) 796,
observed that :
“Now the question of sentence is always a difficult
question, requiring as it does proper adjustment and
balancing of various considerations which weight with
a judicial mind in determining its appropriate quantum
FIR No. 688/00, PS Kotwali
: 383 :
in a given case. The main purpose of the sentence
broadly stated is that the accused must realise that he
has committed an act which is not only harmful to the
society of which he forms an integral part but is also
harmful to his own future, both as an individual and as
a member of the society. Punishment is designed to
protect society by deterring potential offenders as also
by preventing the guilty party from repeating the
offence; it is also designed to reform the offender and
reclaim him as a law abiding citizen for the good of the
society as a whole. Reformatory, deterrent and punitive
aspects of punishment thus play their due part in
judicial thinking while determining the question. In
modern civilised societies however, reformatory aspect
is being given somewhat greater importance. Too
lenient as well as too harsh sentence both loose their
efficaciousness, One does not deter and the other may
frustrate thereby making the offender a hardened
criminal. .............................”
14. Similarly, in an authority reported as State Vs. Shaqila and
others, 2001 AD (DELHI) 701, Hon'ble High Court of Delhi
emphasized the principle of proportionality between crime and
punishment and observed as under:-
“Proportion between crime and punishment is
a goal respected in principle and in spite of
FIR No. 688/00, PS Kotwali
: 384 :
errant notions it remains a strong influence in
the determination of sentences. The practice
of punishing all serious crimes with equal
severity is now unknown in civilized
societies, but such a radical departure from
the principle of proportionality has
disappeared from the law only in recent
times. Even now a single grave infraction
that is thought to call for uniformly drastic
measures. Anything less than a penalty of
greatest severity for any serious crime is
though then to be a measure of toleration that
is unwarranted and unwise. But in fact quite
apart from those considerations that make
punishment unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has some very
undesirable practical consequences.”
31. “The principle of mitigation, like the
principle of proportion has both legislative
and judicial applications. Discretionary
dispensations can be granted by a Judge in
order to make sentences right with regard to
these other things after he has first arrived at a
presumptive sentence based on desert
according to culpability. Probation and low
minimum sentence allow mitigation when
FIR No. 688/00, PS Kotwali
: 385 :
circumstances that have no bearing on the
crime provide a good reason for moderating a
sentence.”
15. Rule 1, Chapter 19, Volume III of Delhi High Court Rules
provides the guidelines regarding sentence, which is as under :-
1. “The award of suitable sentence depends on a
variety of considerations - The determination of
appropriate punishment after the conviction of an
offender is often a question of great difficulty and
always requires careful consideration. The law
prescribes the nature and the limit of the punishment
permissible for an offence, but the Court has to
determine in each case a sentence suited to the offfence
and the offender. The maximum punishment prescribed
by the law for any offence is intended for the gravest of
its kind and it is rarely necessary in practice to go up to
the maximum. The measure of punishment in any
particular instance depends upon a variety of
considerations such as the motive for the crime, its
gravity, the character of the offender, his age,
antecedents and other extenuating or aggravating
circumstances, such as sudden temptation, previous
convictions, and so forth, which have all to be carefully
weighed by the Court in passing the sentence.”
FIR No. 688/00, PS Kotwali
: 386 :
16. The gist of the law referred to above is that sentence should
neither be too harsh nor too lenient.
LAW RELATING TO DEATH SENTENCE :-
17. As per Section 354(3) Cr.P.C, when death sentence is
awarded, special reasons have to be given for the same. What
are the special reasons in such a case? In this regard, I would
like to quote the relevant law.
18. Dealing with the question of death sentence, Hon'ble
Supreme Court in an authority reported as Mohan and others
Vs. State of Tamilnadu, 1998, Crl. L.J. 3276 culled out
following guidelines from the judgment reported as Bachan
Singh V. State of Punjab, AIR 1980 SC 898 :-
(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration along with the
circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death
sentence is an exception. Death sentence must be
imposed only when life imprisonment appears to
FIR No. 688/00, PS Kotwali
: 387 :
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided, the option to
impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance-sheet of aggravating and
mitigating circumstances has to be drawn up and
in doing so the mitigating circumstances have to
be accorded full weightage and a just balance has
to be struck between the aggravating and the
mitigating circumstances before the option is
exercised.
19. Similarly in Devender Pal Singh Vs. State of N.C.T . Of
Delhi & Anr. 2002 III AD (S.C.) 245, Hon'ble Supreme
Court, in paragraphs 29, 30 and 31, observed as under :-
“29. Coming to the question of sentence of death as
awarded by the learned trial judge, the same has to be
judged in the background of what was stated by this
Court in several cases.
30. From Bachan Singh Vs. State of Punjab (AIR
1980 SC 898) and Machhi Singh and Ors. Vs.
State of Punjab (1983 (3) SCC 470), the principle
culled out is that when the collective conscience of
FIR No. 688/00, PS Kotwali
: 388 :
the community is so shocked, that it will expect the
holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty, same can be awarded. It was observed :
“The community may entertain such sentiment in the
following circumstances :-
(1) When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community.
(2) When the murder is committed for a motive
which evinces total depravity and meanness ; e.g.
Murder by hired assassin for money or reward ; or
cold blooded murder for gains of a person vis-a-vis
whom the murderer is in a dominating position or in
a position of trust ; or murder is committed in the
course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath, or in cases of bride burning or dowry
deaths or when murder is committed in order to
remarry for the sake of extracting dowry once again
or to marry another woman on account of infatuation.
(4) When the crime is enormous is proportion. For
instance when multiple murders, say of all or almost
FIR No. 688/00, PS Kotwali
: 389 :
all the members of a family or a large number of
persons of a particular caste, community, or locality,
are committed.
(5) When the victim of murder is an innocent child,
or a helpless woman or old or infirm person or a
person vis-a-vis whom the murderer is in a
dominating position, or a public figure generally
loved and respected by the community.
If upon taking an overall global view of all the
circumstances in the light of the aforesaid
propositions and taking into account the answers to
the questions posed by way of the test for the rarest
of rare cases, the circumstances of the case are such
that death sentence is warranted, the Court would
proceed to do so.”
31. As the factual scenario of the present case
shows, at lease nine persons died, several persons
were injured, a number of vehicles caught fire and
were destroyed on account of the perpetrated acts.
The dastardly acts were diabolic in conception and
cruel in execution. The “terrorists” who are
sometimes described as “death merchants” have no
respect for human life. Innocent persons lost their
lives because of mindless killing by them. Any
compassion for such persons would frustrate the
purpose of enactment of TADA, and would amount
to misplaced and unwarranted sympathy. Death
FIR No. 688/00, PS Kotwali
: 390 :
sentence is the most appropriate sentence in the case
at hand, and learned trial Judge has rightly awarded
it.”
20. Similar observations were made by the Hon'ble Supreme
Court in an authority reported as State of Tamil Nadu vs
Nalini AIR 1999 Supreme Court 2640 in paragraphs 618, 619
and 620 as under :-
“618. We have been addressed arguments on the
question of sentence to be passed against the accused
which is the requirement of sub-sec. (2) of S. 235 of
the Code. Section 354 of the Code deals with the
contents of judgment. Sub-section (3) of S. 354 is
relevant. It is as under :-
“(3) When the conviction is for an offence
punishable with death or , in the alternative, with
imprisonment for life or imprisonment for a terms of
years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence.”
619. Mr. Natrajan said that in case we hold that
Nalini (A-1) Santhan (A-2), Murugan (A-3) and
Arivu (A-18) are guilty, they do not deserve the
extreme penalty.
620. In Bachan Singh v. State of Punjab (1980) 2
SCC 684 : (AIR 1980 SC 898 : 1980 Cri, LJ 636) the
FIR No. 688/00, PS Kotwali
: 391 :
Constitution Bench of this Court was considering the
constitutional validity of S. 302, IPC. Though
holding that S. 302, IPC and S. 354(3) of the Code
are constitutionally valid this Court referred to the
circumstances both aggravating and mitigating for
imposing a sentence of death. It is also made
observations on Ss.354(3) and 235(2) of the Code. It
will be advantageous to quote paras 201, 202 and
209 (of SCC) (paras 199, 200 and 207 of AIR & Cri.
LJ) of the judgment which are as under :-
“201. As we read Ss 354 (3) and 235(2) and other
related provisions of the Code of 1973, it is quite
clear to us that for making the choice of punishment
or for ascertaining the existence or absence of
“special reasons” in that context the Court must pay
due regard both to the crime and the criminal. What
is the relative weight to be given to the aggravating
and mitigating factors, depends on the facts and
circumstances of the particular case. More often than
not, these two aspects are so intertwined that it is
difficult to give a separate treatment to each of them.
This is so because 'style is the man'. In many cases,
the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index
of the depraved character of the perpetrator. That is
why, it is not desirable to consider the circumstances
FIR No. 688/00, PS Kotwali
: 392 :
of the crime and the circumstances of the criminal in
two separate watertight compartments. In a sense, to
kill is to be cruel and therefore all murders are cruel.
But such cruelty may vary in its degree of
culpability. And it is only when the culpability
assumes the proportion of extreme depravity that
“special reasons” can legitimately be said to exist.
202. Drawing upon the penal statutes of the
States in USA framed after Furman V. Georgia
(1972) 33 L Ed 2d 346 : 408 US 238), in general, and
Clauses 2(a), (b), (c) and (d) of the Indian Penal
Code (Amendment ) Bill passed in 1978 by the Rajya
Sabha in particular, Dr. Chitalte has suggested these
“aggravating circumstances”:
Aggravating circumstances : A court may however,
in the following cases impose the penalty of death in its
discretion :
(a) if the murder has been committed after
previous planning and involves extreme brutality; or
(b) if the murder involves exceptional
depravity; or
(c) if the murder is of a member of any of the
armed forces of the Union or of a member of any police
force or of any public servant and was committed -
(i)while such member or public servant was on duty; or
FIR No. 688/00, PS Kotwali
: 393 :
(ii)in consequence of anything done or attempted to be
done by such member or public servant in the lawful
discharge of his duty as such member or public
servant whether at the time of murder he was such
member or public servant , as the case may be, or had
ceased to be such member of public servant; or
(d)if the murder is of a person who had acted in the
lawful discharge of his duty under S. 43 of the Code
of Criminal Procedure, 1973, or who had rendered
assistance to a magistrate or a police officer
demanding his aid or requiring his assistance under
S. 37 and S. 129 of the said Code
.....................................................................................
...................................................................................”
WHETHER THE INSTANT CASE IS THERAREST OF THE RARE TYPE?
21.Now the question is : whether the present case is of the rarest
of rare type calling for extreme penalty of death? First I take
up the case of Mohd. Arif @ Asfaq, who first came to Delhi in
February-March 2000, in pursuance to conspiracy to wage war
against the Govt. of India. He is a Pakistan national and a
member of Laskar-e-Toiba. He admittedly, entered India
illegally and reached Delhi and set up bases at (i) 18-C, Gaffur
FIR No. 688/00, PS Kotwali
: 394 :
Nagar, New Delhi, (ii) G-73, Muradi Road, Delhi and (iii)
308A, DDA Flats, Ghazipur, Delhi. Thereafter, his co-accused
(since proclaimed offenders or killed) came to Delhi fully
armed with AK-56 Rifles, ammunition and hand-grenades.
Previous planning and diabolical designs are reflected in the
lethal and sophisticated nature of weapons brought and used by
them. They carefully selected their target i.e. Army camp
inside Red Fort, a place of national importance and prestige.
They intentionally and deliberately selected Army camp inside
Red Fort as the incident there, would cause widespread
indignation and fear in the country.
22. In the attack, three innocent Army personnels Naik Ashok
Kumar, Uma Shankar and Abdullah Thakur were killed, while
on duty at a peace station. The convict and his co-accused
were acting at the instance of terrorist organization Lashkar-e-
Toiba, which aims at spreading terror in India.
23.The enormity of his crime is writ large on the face of the
record and requires no elaboration. Not only this such
dastardly acts are being committed with increased frequency
these days in which many peoples are being killed with
FIR No. 688/00, PS Kotwali
: 395 :
impunity and people proudly claim responsibility of the same.
This needs to be curbed with a heavy hand by taking recourse
to all measures available under the law, and death sentence is
one of such measures, though to be used rarely, as it has
deterrent and preventive effect. This is a case where sentence
of imprisonment for life would be totally inadequate and ends
of justice would be served only and only by awarding death
sentence. There is no mitigating fact or circumstance on the
file.
24.Mohd. Arif @ Ashfaq @ Abu Hamad organized the entire
attack by setting up bases in Delhi and it is he, who led the
members of Lashkar-e-Toiba at the time of attack, being first to
come to Delhi. He also telephoned BBC Delhi and Sri Nagar
about the attack in most foul language i.e. “Do Dane Dal Diye
Hai”, and got arms and ammunition and his base at G-73,
Muradi Road, Okhla, Delhi discovered. For these reasons I am
satisfied that this is a fit case for being categorized as of the
rarest of the rare type, as far as Md. Arif @ Ashfaq @ Abu
Hamad is concerned.
25. However, as far as Nazir Ahmad Quasid and Farukh Ahmad
FIR No. 688/00, PS Kotwali
: 396 :
Quasid are concerned, I find myself in agreement with learned
defence counsel Sh. Aman Lekhi, that there is nothing on the
file, which could make out their case as that of the rarest of rare
type.
26. It is further submitted by Sh. Anil Aggarwal and Sh. R.M.
Tufail that Rehmana Yusuf Farukhi, Sadakat Ali and Matloob
Alam may be released on probation. Written applications have
been filed on behalf of Rehmana Yusuf Farukhi and Sadakat
Ali. The plea of probation has been opposed by the learned
Special Public Prosecutor. Considering the nature of the case, I
do not find any merit in the applications or submission.
27.Now, I proceed to award sentence to the convicts, keeping in
mind the law referred to above, submissions of parties and the
facts and circumstances of the case.
28.It has come on record that financial condition of Mohd. Arif @
Asfaq, Rehmana Yusuf Farooqui, Sadaqat Ali and Nazir
Ahmad Quasid and Faruq Ahmad Quasid is quite good. Other
two are not far behind. In fact no plea has been made before
me that any of the convicts belong to a poor family.
FIR No. 688/00, PS Kotwali
: 397 :
29.I fully understand that the maximum punishment prescribed by
the law for any offence is intended for the gravest of its kind
and it is rarely necessary in practice to go up to the maximum.
And the instant case is that rare case in which maximum
punishment is required to be inflicted to meet the ends of
justice, whatever may be the mitigating circumstances.
SENTENCE:
30. (1) MOHD. ARIF @ ASAFAQ @ ABU HAMAD
(i) I sentence Mohd. Arif @ Asfaq @ Abu Hamad to
death alongwith fine of Rs. One Lakh in default three (3) years
RI, subject to confirmation by the Hon'ble High Court, U/s 121
IPC, for waging war against the Government of India. I direct
that he shall be hanged by neck till he is dead.
(ii) I also sentence Mohd. Arif @ Asfaq @ Abu Hamad to
death alongwith fine of Rs. Three Lakhs in default RI for five
(5) years U/s 302 R/w sec. 120-B IPC, subject to confirmation
by the Hon'ble High Court, for committing murder of three
army personnels namely Ashok Kumar, Uma Shankar and
Abdullah Thakur inside Red Fort on 22.12.2000. I direct that
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he shall be hanged by neck till he is dead.
(iii) I also sentence him to rigorous imprisonment for ten
(10) years alongwith fine of Rs.25,000/- (Rupees Twenty Five
Thousand only) in default one (1) year RI U/s 121-A IPC for
conspiracy to wage war against the Government of India.
(iv) I also sentence him to rigorous imprisonment for three
(3) months alongwith fine of Rs.500/- (Rupees Five Hundred
only) in default one (1) month RI U/s 186 IPC for obstructing
public servants on duty
(v) I also sentence him to rigorous imprisonment for two
(2) years alongwith fine of Rs. 10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 353 IPC for assaulting
public servants on duty.
(vi) I also sentence him to rigorous imprisonment for three
(3) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 25 of Arms Act for
possessing a pistol unauthorisedly on 26.12.2000 at 308-A,
DDA Flats, Ghazirpur, Delhi.
(vii) I also sentence him to imprisonment for life alongwith
fine of Rs.25,000/- (Rupees Twenty Five Thousand only) in
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default one (1) year RI U/s 4 of Explosive Substances Act, as
the hand-grenades were concealed by him in the course of
conspiracy, during which human life was endangered.
(viii) I also sentence him to rigorous imprisonment for five
(5) years alongwith fine of Rs.25,000/- (Rupees Twenty Five
Thousand only) in default one (1) year RI U/s 14 of Foreigners
Act.
(ix) I also sentence him to rigorous imprisonment for seven
(7) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 420 IPC, for cheating
Ghaziabad Transport Authority.
(x) I also sentence him to rigorous imprisonment for seven
(7) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 468 IPC, for committing
forgery for the purpose of cheating regarding his ration card
and driving licence, purported to be issued by public servants
in their official capacity.
(xi) I also sentence him to rigorous imprisonment for seven
(7) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 471 IPC for using forged
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ration card and driving licence, for acquiring Indian identity,
purported to be issued by public servants in their official
capacity.
(xii) I also sentence him to rigorous imprisonment for seven
(7) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 474 IPC, for keeping
forged documents i.e. Ration card and driving licence in his
possession, which were being used as genuine and purported to
be issued by public servants in their official capacity.
31. (2) REHMANA YUSUF FAROOQUI
(i) I sentence Rehmana Yusuf Farooqui to Rigorous
imprisonment for seven (7) years alongwith fine of Rs.10,000/-
(Rupees Ten Thousand only) in default one (1) year RI U/s
216 IPC for sheltering Mohd. Arif @ Asfaq before and after
the incident.
(ii) I also sentence her to rigorous imprisonment for seven
(7) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 118 IPC, as the offences
were committed on account of her non-disclosure of designs of
Mohd. Arif @ Asfaq.
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32. (3 & 4) NAZIR AHMAD QASID AND FAROOQ AHMAD QASID.
(i) I sentence Nazir Ahmad Qasid and Farooq Ahmad
Qasid to imprisonment for life alongwith fine of Rs.50,000/-
(Rupees Fifty Thousand only) each in default two (2) years RI
U/s 121 IPC for waging war against the Government of India.
(ii) I also sentence both of them to rigorous imprisonment
for ten (10) years alongwith fine of Rs.25,000/- (Rupees
Twenty Five Thousand only) each in default RI for one (1) year
U/s 121-A IPC for conspiracy to wage war against the
Government of India.
(iii) I also sentence both of them to imprisonment for life
alongwith fine of Rs.25,000/- (Rupees Twenty Five Thousand
only) each in default one (1) year RI U/s 120-B read with sec.
109 IPC for conspiracy to murder all those who came in their
way in waging war against Government of India and due to
which Uma Shankar, Abdulla Thakur and Ashok Kumar were
killed.
33. (5) BABAR MOHSIN BHAGWALA
(i) I sentence Babar Mohsin Bhagwala to Rigorous
imprisonment for seven (7) years alongwith fine of Rs.10,000/-
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(Rupees Ten Thousand only) in default in one (1) year RI U/s
216 IPC. The plea of Ld. Defence counsel that sheltering was
only before the incident is contrary to record as this was both
before and after the incident.
(ii) I also sentence him to Rigorous imprisonment for
seven (7) years alongwith fine of Rs.10,000/- (Rupees Ten
Thousand only) in default one (1) year RI U/s 118 IPC, as the
offences were committed on account of his non-disclosure of
designs of Mohd. Arif @ Asfaq.
34. (6) MATLOOB ALAM :-
(i) I sentence Matloob Alam to Rigorous imprisonment
for seven (7) years alongwith fine of Rs.10,000 (Rupees Ten
Thousand only) in default one (1) year RI U/s 468 IPC for
forging ration card of Mohd. Arif @ Asfaq to give him Indian
identity.
(ii) I also sentence him to Rigorous imprisonment for
seven (7) years alongwith fine of Rs.10,000 (Rupees Ten
Thousand only) in default one (1) year RI U/s 420 IPC for
cheating B.R. Joshi and Azmat Imam Khan.
(iii) I also sentence him to Rigorous imprisonment for
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seven (7) years alongwith fine of Rs.10,000/- (Rupees Ten
Thousand only) in default one (1) year RI U/s 468 IPC for
committing forgery of ration cards of B.R. Joshi and Azmat
Imam Khan for the purpose of cheating.
35. (7) SADAQAT ALI
(i) I sentence Sadaqat Ali to rigorous imprisonment for
seven (7) years alongwith fine of Rs.10,000/- (Rupees Ten
Thousand only) in default one (1) year RI U/s 216 IPC for
sheltering Mohd. Arif @ Asfaq at 18-C, Gaffur Nagar, Okhla,
Delhi, before and after the incident.
(ii) I also sentence him to rigorous imprisonment for
seven (7) years alongwith fine of Rs. 10,000/- (Rupees Ten
Thousand only) in default one (1) year RI U/s 118 IPC as the
offences were committed on account of his non-disclosure of
designs of Mohd. Arif @ Asfaq.
(iii) I also sentence him to rigorous imprisonment for five
(5) years alongwith fine of Rs.10,000/- (Rupees Ten Thousand
only) in default one (1) year RI U/s 14 of Foreigners Act for
keeping Mohd. Arif @ Asfaq, a Pak national, in his house
without information to the authorities.
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(iv) I also sentence him to rigorous imprisonment for six
(6) months alongwith fine of Rs.1,000/- (Rupees One Thousand
only) in default one (1) month RI U/s 188 IPC for letting out
his premises No.18-C, Gaffur Nagar, Okhla, New Delhi to
Mohd. Arif @ Asfaq without informing the police and this act
caused danger to human life.
36. The sentence of death to Md. Arif @ Ashfaq shall not be
executed unless the same is confirmed by the Hon'ble High
Court of Delhi.
37. All sentences of all seven convicts shall run concurrently.
38.Certified copies of the judgment and order be given to all
seven convicts free of cost immediately.
39. As per provisions of Section 363 (4) Cr.P.C., the Md. Arif @
Ashfaq @ Abu Hamad has been informed that he may file an
appeal, if he wishes to do so, within a period of thirty days
from today against his conviction and sentence awarded to him
herein above.
40.Benefit of sec. 428 Cr.P.C. be given to the convicts as per law.
41. All convicts are in custody to serve out the sentence awarded
to them.
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42. A copy of the judgment and order be placed on each file.
43. I record my appreciation for the assistance given by Ld.
Special Public Prosecutor Sh. Bakshish Singh as well as
learned defence counsel S/Sh. I.U. Khan, R.M. Tufail, Anil
Aggarwal, P.R. Aggarwal, Aman Lekhi, S.A. Hasmi, D.K.
Sharma, Satpal Singh and others during trial of the case. I also
record my apprection for the work done by Investigating
Officer Insp. Surender Kumar Sund. I also record my
appreciation for the witnesses, who deposed during the trial of
the case, particularly army officials, who in some cases came
from distant places and faced lengthy examination and cross-
examination for days together.
44.I also note with satisfaction that all eleven accused were very
punctual during the trial and they were generally of good
behaviour, though occasionally Mohd. Arif @ Asfaq, Rehmana
Yusuf Farooqi and Sadakat Ali indulged in temperamental
behaviour, accusations and shouting, which was never taken
note of.
45. Proceedings of the case along with exhibits, complete in all
respects, are being submitted to the Hon'ble High Court of
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Delhi, for confirmation of sentence of death awarded herein
above as provided by Section 366 Cr.P.C.
Announced in open court (O.P. SAINI)on 31.10.2005 Addl. Sessions Judge : Delhi
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