Mohd.Ayub Dar vs State Of J & K

1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 535 OF 2009

Mohd. Ayub Dar ........Appellant

Versus

State of J&K ........Respondent

J U D G M E N T

V. S. Sirpurkar, J.:

1. Appellant Mohd. Ayub Dar S/o Abdul Ahad - Original

accused no.1 challenges his conviction for the offence

punishable under Section 3 (3) of the Terrorist and

Disruptive Activities (Prevention) Act, 1987 (In

short "TADA ACT"), as also for the offence punishable

under Section 302 of the RPC. Originally, the five

accused persons were tried in respect of murder of

Mirwaiz Moulvi Farooq, which took place on 21.5.1990, at

about 11 O' clock in the morning. Accused no. 2 Abdul

Rehman Shigan and accused no.3 Abdulla Bangroo expired

during pendency of the trial, while the other two

accused persons namely Javed Ahmed Bhat @ Ajmal Khan @

Ditta s/o. Habibulla Bhat and Zahoor Ahmed @ Bilal @ 2 Zana were untraceable. Thus, out of the five accused

persons, we are concerned only with accused no.1

(appellant herein) Mohd. Ayub Dar S/o Abdul Ahad.

2. It so happened that on 21.5.1990, at about 11 O'

clock in the morning, three unknown terrorists entered

into the house of Mirwaiz Moulvi Farooq with the

intention of killing him and Moulvi Farooq was severely

injured by gun-shot. He, ultimately, succumbed to the

injuries in Soura Hospital, Srinagar, and, therefore,

the offence registered u/s. 307 of the RPC originally

was converted into the offence u/s. 302 of the RPC on

the same day. The initial investigation was done by

Police Station, Nageen, which was thereafter transferred

to CBI under the orders of the Government of India vide

Notification No.228/3/90-AVD.II, dated 11.06.90. The

house of Moulvi Farooq was in New Colony, Nageen,

Shrinagar, known as `Mirwaiz Manzil', wherein one small

doubled storeyed building was constructed for the

purpose of residential Office of Mirwaiz. This small

Office had two rooms on the ground floor and one big

hall on the first floor. In one of the two rooms; on

the ground floor, the Personal Assistant of Mirwaiz

Moulvi Farooq used to sit and the second room was

adjacent to the said room, which had office of Mirwaiz

Moulvi Farooq. The entrance to the Office of Mirwaiz 3 Moulvi Farooq was from the room of his Personal

Assistant.

3. It was the prosecution case that, due to popularity

of Mirwaiz Moulvi Farooq, two terrorists outfits namely

Jamt-e-Islami in general and Hizbul-Mujahideen in

particular were apprehensive that Moulvi Farooq would

eventually assume political leadership of Kashmir. They

also viewed him as an agent of Government of India

working against the interests of militant groups.

Therefore, in the year 1990 itself, in the month of

April, accused Abdulla Bangroo, Javed Ahmed Bhat @ Ajmal

Khan @ Bitta and Mohd. Ayub Dar @ Ishfaq - present

appellant, who belong to Hizbul Mujahideen, entered into

a criminal conspiracy to eliminate Mirwaiz Moulvi

Farooq. Accused Abdulla Bangroo, who was then heading

Hizbul Mujahideen, instructed Javed Ahmed Bhat @ Ajmal

Khan and Mohd. Ayub Dar @ Ishfaq - present appellant to

plan elimination of Mirwaiz Moulvi Farooq. Javed Ahmed

Bhat @ Ajmal Khan was then working as an Area Commander

of Hizbul-Mujahideen in the downtown area of Srinagar;

whereas the appellant/accused was working as a Group

Commander in that very area. Later on, Abdul Rehman

Shigan @ Inayat and Zahoor Ahmed @ Bilal @ Zana also

joined the conspiracy. It came out in the investigation

that, in the second week of May, 1990, under the 4 instructions of Javed Ahmed Bhat @ Ajmal Khan, Mohd.

Ayub Dar @ Ishfaq - present appellant and Abdul Rehman

Shigan @ Inayat had visited the residence of Moulvi

Farooq at Nageen, Srinagar and had requested him for

financial help to their militant organization i.e.

Hizbul Mujahideen. Moulvi Farooq had agreed to help them

and had asked them to meet after 2/3 days during the

morning hours. Thereafter, two accused surveyed the area

as per their plan and informed the details to Javed

Ahmed Bhat @ Ajmal Khan. It was on 21.05.1990 that the

three accused namely Mohd Ayub Dar @ Ishfaq (present

appellant), Abdul Rehman Shingan @ Inayat and Zahoor

Ahmed @ Bilal @ Zana armed with loaded pistol visited

the `Mirwaiz Manzil' at Nageen. Accused Javed Ahmed

Bhat @ Bilal had instructed the appellant that, out of

the three accused persons, Zahoor Ahmed @ Bilal would

fire on Moulvi Farooq and the remaining two accused

persons namely Ayub Dar i.e. present appellant and Abdul

Rehman Shingan were to provide cover to Zahoor Ahmed @

Bilal. As per the plan, they all reached the gate of

Mirwaiz Manzil and met Maqbool Shah, the gate-keeper

(PW-16) and informed him that they wanted to meet Moulvi

Farooq. Maqbool Shah (PW-16) then asked Gulam Qadir

Sofi, the gardener, to take them to the Personal

Assistant as he himself was going to the market. 5 Accordingly, the gardener - Gulam Qadir Sofi took the

three to the Personal Assistant namely Saidur Rehman

(PW-17), who asked them about their names and one of

them disclosed his fake name as Gulzar Farooq r/o.

Batmaloo. That name was written by the Personal

Assistant on a slip of paper and the said slip was sent

inside the room of Moulvi Farooq through the gardener

Gulam Qadir Sofi. After sometime, Moulvi Farooq called

the three accused inside the Office, on which Zahoor

Ahmed @ Bilal entered the room of Moulvi Farooq and the

remaining two accused persons including the present

appellant took up position in the PA's room. On

entering the room of Moulvi Farooq, Zahoor Ahmed @ Bilal

fired several rounds on Moulvi Farooq from his pistol

and immediately, accused Inayat also fired from his

pistol in the air while coming out of PA's room, which

hit the outside wall of the Office. On hearing the sound

of firing, the gardener came inside the Office and tried

to catch hold of Ishfaq, who was trying to escape.

However, all the accused persons escaped giving a push

to the Gardener Gulam Qadir Sofi. Accused Bilal also

tried to run away, but he was caught by Gulam Qadir

Sofi. There was a scuffle between the two, in which

Bilal sustained an injury below his right eye. Later,

after firing one round from his pistol, Bilal also 6 managed to escape. The accused persons ran towards

Kashmir University, who were followed by Gulam Qadir

Sofi upto the main road and near the University Gate,

the assailants ran towards Soura through the University

compound and reached Chhatargaon in the afternoon of

21.05.1990. They then reported killing of Moulvi Farooq

to Abdulla Bangroo and Ajmal Khan. All the three accused

persons were directed by Abdulla Bangroo and Ajmal Khan

to go underground for sometime.

4. The prosecution urged that appellant Mohd Ayub Dar

@ Ishfaq had visited Pakistan, where he was trained in

the handling of firearms and explosives. He was involved

in a number of other terrorists' cases and was arrested

in Delhi by the Delhi Police on 6.5.1991. He was

further arrested in the present case on 15.6.1991 by

CBI. When his statement was recorded u/s. 15 of the TADA

Act, he confessed the aforesaid crime and disclosed the

names of other two assailants namely Abdul Rehman Sigan

@ Inayat and Zahoor Ahmed @ Bilal. He also confessed

regarding involvement of accused Abdulla Bangroo and

Ajmal Khan in the crime.

5. Accused Abdul Rehman Singan @ Inayat, who was in

the judicial custody in a case of CID, Srinagar, was

also arrested in this case on 20.9.1990. He also 7 confessed the guilt and corroborated the statement made

by the present appellant.

6. After he was fired, injured Mirwaiz Moulvi Farooq

was removed to Sher-e-Kashmir Institute of Medical

Sciences, Soura by Manzoor Ahmed and Saffad Ahmed, who

were his brothers-in-law and Nazir Ahmed Dar, a servant.

He was examined by Dr. Abdul Mazid and was immediately

operated thereupon. Dr. Afzak Wani, Head of the

Department of Neurosurgery, Institute of Medical

Sciences, Soura was also consulted. But, at about 12.30

P.M., Mirwaiz Moulvi Farooq succumbed to the injuries in

the hospital. Injury Report was prepared by Dr. Abdul

Mazid. However, post mortem on the dead body could not

be carried out as a very serious law and order situation

ensued owing to death of Moulvi Farooq. A huge mob got

collected at the spot and they demanded that the dead

body of deceased be handed over to them without the

post-mortem being carried out. The dead body was,

ultimately handed over to the followers of Moulvi Farooq

and the last rites were performed on the next day. His

wearing apparels were seized and were referred to the

Central Forensic Science Laboratory (C.F.S.L.) along

with the bullets and empty cartridges seized from the

place of occurrence. The C.F.S.L. opined that the

wearing apparels were having holes corresponding to the 8 injuries of the deceased. It was further opined that

the empty fired cartridges which were seized, as also

the bullets seized from the place of occurrence were

fired from two types of small arms. The facts suggested

that the present accused/appellant and Abdul Rehman

Shigan @ Inayat had committed an offence u/s. 302 r/w.

section 34 of the RPC, while the other accused persons

namely Abdulla Bangroo @ Khalid, Javed Ahmed Bhat @

Ajmal Khan along with Mohd. Ayub Dar @ Ishfaq (present

appellant) and Zahoor Ahmed @ Bilal @ Zana and Abdul

Rehman Shigan @ Inayat had committed an offence under

Section 3 (3) of the TADA Act, 1987.

7. Under the above circumstances, the

appellant/accused alone came to be charged. About 24

witnesses came to be examined and the confessional

statement recorded by A. K. Suri (PW-2), who was then

working as S.P., CBI, came to be relied upon by the

prosecution. The statement came to be recorded on

27.6.1991 after the accused/appellant was brought from

Delhi to Srinagar.

8. The trial Court considered the evidence of all the

witnesses individually. The Court also took notice of

the argument that copy of the First Information Report

was not sent to the Court and came to the conclusion 9 that the contention raised by the defence was not

correct. The Court further came to the conclusion that

there was nothing suspicious regarding non-sending of

the First Information Report. The trial Court also

rejected the argument of the defence that there were

inconsistencies and contradictions in the evidence of

prosecution witnesses inter-se. It pointed out that the

minor discrepancies could not and did not matter in this

case. It was, in fact, observed that the defence was not

able to point out any material contradiction in the

evidence of witnesses during the course of arguments.

The trial Court came to the conclusion that non-

performance of post-mortem did not matter as it was

clear that Moulvi Farooq died due to gun-shot injuries.

In fact, the trial Court accepted the evidence of Dr.

Mohd. Afzal Wani (PW-6). Ultimately, the trial Court

also accepted the confession given by the appellant.

Relying upon the evidence, the trial Court convicted the

accused/appellant for the offence u/s. 3 (3) of the TADA

Act and u/s. 302 of the RPC. After hearing the accused

person on the question of sentence, the trial Court

awarded imprisonment for life with a fine of Rs.6,000/-

and in default of payment of fine, the appellant was

directed to suffer further imprisonment for six months

for the offence u/s. 302 of the RPC. The appellant is 1 0 also sentenced to undergo imprisonment for a period of

five years and to pay a fine of Rs.5,000/- u/s. 3(3) of

the TADA Act. In default of making the payment of fine,

the accused was directed to undergo imprisonment for six

months.

9. Lastly, the trial Court, following Section 374 of

the J & K Code of Criminal Procedure, 1989, ordered that

the imprisonment for life would be subject to

confirmation by this Court since this Court is the

appellate Court. It is this judgment which is being

challenged before us.

10. Shri Sushil Kumar, learned Senior Counsel,

initially raised a preliminary argument to the effect

that the life imprisonment ordered by the trial Court

was liable to be confirmed by the High Court and the

same not having been done, this Court could not look

into the question of legality of the life imprisonment.

The argument is based on Section 374 of the Criminal

Procedure Code as applicable in the State of Jammu and

Kashmir, under which even a life imprisonment ordered by

the Court in that State is required to be confirmed.

The argument is, however, not correct inasmuch as it is

specifically provided in Section 14 (3) of the TADA Act

that the Designated Court shall, for the purpose of 1 1 trial of any offence, have all the powers of a Court of

Session and shall try such offences as if it were the

Court of Session so far as may be in accordance with the

procedure prescribed in the Code for the trial before

the Court of Session. The word "Code" is defined u/s. 2

(b) of the TADA Act, wherein is it provided that the

word "Code" means the Code of Criminal Procedure, 1973

(2 of 1974). Therefore, it is clear that the trial has

to be conducted in accordance with the Criminal

Procedure Code, 1973 and not in accordance with the

Criminal Procedure Code as applicable to the State of

Jammu and Kashmir. U/s. 19 (1) of the TADA Act, an

appeal is provided against the judgment, sentence or

order, not being an interlocutory order by a Designated

Court to the Supreme Court of India. Sub-section (2)

thereof provides that, except the cases mentioned under

sub-section (1), no appeal or revision shall lie to any

Court from any judgment, sentence or order including an

interlocutory order of a Designated Court. Section 25

of the TADA Act provides that the provisions of the TADA

Act or any Rule thereunder or any order made under any

such rule shall have effect notwithstanding anything

inconsistent therewith contained in any enactment other

than the TADA Act or in any instrument having effect by

virtue of any enactment other than this Act. In view of 1 these provisions on which 2 Mr. Rawal, the learned

Additional Solicitor General of CBI, relies upon, there

will be no question of applicability of Section 374 of

the Criminal Procedure Code as applicable to the State

of Jammu and Kashmir. Realizing this, Shri Sushil

Kumar, learned Senior Counsel did not seriously press

this objection, though considerable arguments were

tendered before the Court earlier. In that view of the

matter, the first question raised by learned Senior

Counsel Shri Sushil Kumar is decided against the

defence.

11. The main thrust of the argument of the learned

Senior Counsel appearing on behalf of the appellant was

that the prosecution has failed to prove the offence

u/s. 302 of the RPC independently of the confession. It

was urged that, if the confession is ignored, then there

would remain no material to involve the accused. It is

pointed out that the accused also stood convicted for

the offence u/s. 3 (3) of the TADA Act, wherein he was

awarded a punishment of five years and to pay a fine of

Rs.5,000/- in default to suffer further imprisonment for

six months. It is pointed out that the accused had

already served out the sentence of five years. The

learned Senior Counsel, therefore, did not seriously

challenge his conviction u/s. 3 (3) of the TADA Act and 1 instead, concentrated on the 3conviction for the offence

u/s. 302 of the RPC. It was pointed out to us that

there was no material to hold that the accused ever

conspired or was a part of conspiracy to commit murder

of Moulvi Farooq. The learned Senior Counsel urged that

there was practically no evidence and the oral evidence

tendered on behalf of the prosecution to prove the guilt

of the appellant for both the offences was hopelessly

vague and could not have been relied upon by the trial

Court to convict the appellant of both the offences.

The learned Senior Counsel took us through the evidence

of prosecution witnesses and urged that the evidence of

the witnesses is wholly unreliable and took the

prosecution nowhere. By way of additional submission,

the learned Senior Counsel urged that the trial Court

erred in relying upon the confession recorded by A. K.

Suri (PW-2) as the said confession could not have been

accepted to be a genuine confession. It was urged that

the said confession was neither in the language of the

accused nor the accused had ever made any such

confession, much less before the witness. It was then

pointed out that the original of the Confession made was

also not available nor was placed before the Court. It

was further suggested that the oral evidence runs

counter to the statement made in the confession and 1 therefore, the confession was 4untrustworthy.

12. Before considering the confession allegedly made by

the appellant, we would take the stock of criticism made

against the oral evidence. But even before that, to put

the record straight, we would choose to place the clear-

cut language of Section 3 (3) of the TADA Act, for which

the appellant stands convicted. Section 3, sub section

(3) of the TADA Act provides as under :

"whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine."

13. We have carefully examined the appeal memo filed

u/s. 19 of the TADA Act. Very strangely, we do not find

any challenge to the conviction u/s. 3 (3) of the TADA

Act. All through, the challenge is to the conviction

for the offence u/s. 302, as also to Section 120-B r/w.

Section 3 of the RPC. Conviction u/s. 3(3) of the TADA

Act was not seriously challenged by Shri Sushil Kumar,

learned Senior Counsel; perhaps, because the accused has

already suffered more than five years of imprisonment,

which was the sentence awarded to him for that offence.

14. It is in the backdrop of this factual situation

that the oral evidence would have to be considered. 1 15. 5

It was not seriously contested that Moulvi Farooq

died of bullet injuries and that this was a case of

homicidal death. The first relevant witness amongst

those who were present at the time of incident is Nazir

Ahmed Dar S/o Mohd. Abdulla Dar (PW-11). He was a family

servant in the house of Moulvi Shafat, who was the

brother-in-law of Moulvi Farooq. He heard the sound of

fire and went to see as to whether the sound of fire had

come. He saw two persons jumping from the southern wall

of Moulvi Farooq and going towards the southern side.

He helped in arranging a vehicle and admitting Moulvi

Farooq in the hospital. He was declared hostile as far

as he failed to identify the accused. However, he

admitted that he did not remember whether even the third

person had also jumped from the wall. He also did not

remember whether he has given description of the first

man whom he saw jumping over the wall. He categorically

suggested that the accused person in the Court was not

there. His evidence is, therefore, of no consequence

for the prosecution. The evidence of Zahid Ali Lone

(PW-13), S/o Habib-ullah Lone, an Advocate by

profession, is also of no consequence as he refused to

even identify the accused and asserted that he did not

see the accused. Mohd. Yasin s/o. Misri Khan (PW-14)

was on the guard duty at the bungalow of Moulvi Farooq. 1 6 In his presence, empty cartridge cover was seized from

the courtyard of Moulvi Farooq by one Gunwant Singh. The

witnesses so far considered by us only go to show that

Moulvi Farooq had died homicidal death due to fire and

some three persons had entered his house on that day,

who escaped.

16. The evidence of Salam-id-Din S/o Mohd. Maqbool Shah

(PW-15) is also of no consequence as he had neither seen

the deceased nor the assailants. He only came to know

about death of Moulvi Farooq. This witness was the

Public Relations Officer of Moulvi Farooq. Mohd. Maqbul

Shah S/o Khazir Muhammad Shah (PW-16) was the peon of

Moulvi Farooq, but he was not on the spot when the

incident took place. Much was made of the evidence of

this witness that he had not identified the two persons

who had come to Moulvi Farooq in the morning. However,

it is clear that the two persons that he was speaking

about could not have been the accused persons as they

had come at 9 O'clock to Moulvi's place and it is

nobody's case that the accused persons had come at 9 O'

clock in the morning. He had acted as a panch witness

also. Saidur Rehman s/o. Amir Din (PW-17) was

specifically referred by Shri Sushil Kumar, learned

Senior Counsel. This witness was his Public Relations

Officer (PRO)-cum-Personal Assistant (PA). According to 1 7 him, after the death of Moulvi Farooq, he continued to

work as a P.R.O. of his son Moulvi Umar Farooq. He

claimed that, on the fateful day, his peon informed that

three persons wanted to meet Moulvi Saheb. They were

brought in and were made to sit in the Office. Their

names were asked and one of them stated his name to be

Gulzar Farooq. He did not remember the other two names.

He claims that he made the name slip of Gulzar Farooq

with his own pen and sent the same to Moulvi Saheb. The

said slip (Exhibit D-16) was shown to him. He identified

the same. He also identified his own signature.

According to him, all the three persons went inside. He

was engaged in conversation on telephone. Then he heard

the sound of fire and suddenly the door of Moulvi

Saheb's room opened and those persons fled away. He saw

that Moulvi Farooq was lying in a pool of blood. He then

spoke about Moulvi Farooq being transfered to the

hospital and his death. He has confirmed that, while

fleeing away, he saw a revolver in the hand of one of

the boys. He also confirmed that the peon Gulam caught

hold of one of the men, but he got away while fleeing

himself. Even this witness has not identified the

accused/appellant in the Court. He specifically

contended that, since the incident was 13 years old, it

would be difficult for him to identify any of the three 1 8 persons. He specifically stated that there was nobody

amongst them present in the Court. In fact, much could

have been done by cross-examining this witness by the

prosecution for the reasons unknown. Even that was not

done.

17. Amjad Parvez Munir was examined as PW-18 who spoke

about the seizures and the panchas. PW-19 is Javaid

Firdous S/o Alam Din, who is resident of Lucknow and was

a Professor working in the Kashmir University. There is

nothing that he has spoken about the accused. In fact,

we do not know why he was cross-examined. Same is the

story about Shafat Ahmad (PW-20) S/o Late Moulvi Gulam

Rasool, who is brother-in-law of deceased Late Moulvi

Mohd. Farooq. He also did not see any man, though he

heard the noise of fire-shots. His evidence also would

be of no consequence except to prove that Moulvi Farooq

was shot at and that he died in the hospital. Mohd.

Tariq s/o. Gulam Hussain (PW-21) is another witness who

is a witness on seizure of cover of bullet from the

spot. Nothing has come out in his cross-examination.

Methlas Kumar Jha is another witness who is posted as a

Dy.S.P. CBI SFC II. He had acted as an Investigating

Officer. He claimed to have received the FIR copy on

12.6.1990. He spoke about the murder having been

admitted by Hizbul Mujahideen organisation. He further 1 9 spoke that Late Abdullah Bangroo, Ajmal Khan, Bilal,

Ishfaq i.e. present appellant and Abdul Rehman Shigan

were the accused of murder and that they entered into

conspiracy to kill Moulvi Farooq. He then referred to

the arrest made of the appellant by Delhi Police. He

went to arrest Ayub Dar/present appellant in Delhi and

brought him to Srinagar on police remand. He then

asserted that, during the investigation, Ayub Dar

confessed and stated that he wanted to make statement.

He was then produced before the S.P. for recording his

statement. He then confirmed that the statement was then

recorded by the S.P. He identified the accused as the

same person who was arrested and who gave his statement

u/s. 15 of the TADA Act, which was recorded by the S.P.

He pointed out that he also got recorded statement of

accused Abdul Rehman Shigan u/s. 15 of the TADA Act as

he was already arrested in some other case, in pursuance

of the request made by accused Abdul Rehman Shigan. He

was extensively cross-examined by the defence. He

claimed to have received the whole file (Exhibit D-2)

from Parvaiz Mirza SHO, P.S. Nageen. He identified the

photo copy of FIR which was written in 19 lines. He also

confirmed that the copy of FIR was sent to the

Magistrate. He identified the FIR. Several inadmissible

questions seem to have been asked to this witness about 2 the statements recorded 0 u/s. 161, which are of no

consequence. However, all that can be said about this

witness is that he went to arrest the accused and

produced him before the S.P. for recording his

statement. There is no question asked on that aspect.

It has again and again come in the cross-examination

that he had produced the accused/appellant for recording

his statement under the TADA Act; that the

accused/appellant was under his custody and that his

statement was recorded by the S.P. He asserted that the

accused had requested him verbally for recording his

statement and he also verbally brought the request of

the accused to the attention of the S.P. According to

him, the statement of accused was recorded on 27.6.1991

when the accused was produced at 11 O'clock in the

morning before the S.P. for recording his statement. He

claimed that he did not remain present there. After his

statement was recorded, the accused was taken away by

this witness. He also had collected second copy of the

statement. In short, it cannot be said that the

witnesses have identified the accused as one of the

three persons who had killed Moulvi Farooq. Shri Sushil

Kumar, learned Senior Counsel, therefore, is undoubtedly

right when he says that if the other evidence is taken

into account de-hors of the confession made, the 2 1 prosecution cannot claim to have proved the offence that

the accused/appellant was one of the accused persons

present along with the two other accused persons who had

fired at Moulvi Farooq.

18. However, one thing is certain that the prosecution

has been able to prove homicidal death of Moulvi

Farooq by being shot at. Prosecution has proved that,

on that day, at about 10.30, three persons had come.

They had gone to the room of Moulvi Farooq and had

fired. It is also proved that, it is due to those

injuries that Moulvi Farooq died a homicidal death. True

it is that no post mortem was conducted; however,

prosecution has given proper explanation that the post

mortem could not have been conducted due to angry public

reaction. However, in-spite of that, there is good

evidence to suggest that Moulvi Farooq died of the

bullet injuries almost immediately after he was fired.

All this could not have been possible unless the

assailants had entered into conspiracy to murder Moulvi

Farooq. It was in pursuance of that conspiracy alone

that the assailants entered the chamber of Moulvi Farooq

and fired at him. The evidence of P.R.O. is very clear

in that context. The only question to be considered is

whether this appellant was one of assailants. Seeing the

prosecution evidence as it is, if all the three accused 2 came together and 2 approached the chamber of Moulvi

Farooq and one of them fired at him, there will be no

question of only the individual liability. Everything

was clear as sun-shine that three had come not with an

idea to chat with Moulvi Farooq or to seek any favour

from him, but they had come specifically with a specific

design to eliminate Moulvi Farooq. We, therefore, do

not find anything wrong in the verdict of guilt given by

the trial Court so far as Section 3 (3) of the TADA Act

is concerned. However, the question would still remain

as to whether the appellant/accused was one of the

assailants. That could have been proved by direct

evidence firstly or alternatively or in addition to it,

by the confession statement recorded u/s. 15 of the TADA

Act. If the confession statement stands to the Acid

test on credibility, voluntariness and truthfulness,

then that would be sufficient to pin the guilt of the

accused. Therefore, it is now to be examined as to

whether the trial Court was justified in relying upon

the statement u/s. 15 of the TADA Act.

19. Shri Sushil Kumar, learned Senior Counsel, firstly

urged that the confession was shrouded in mystery

inasmuch as it was not clear as to whether it was

recorded and under what circumstances. He clearly

criticized the same saying that it could have been 2 recorded on the video tapes, 3 but was not done. He also

pointed out that the confession was not recorded in the

language of accused/appellant nor was it a true

representation of what was stated. He pointed out that

it was contradictory with the oral evidence and there

were innate contradictions which went on to disprove its

very credibility. Relying on Rule 15 (2) of the TADA

Act, he pointed out that it was explained or interpreted

to the maker. He further urged that the original of the

confession is not on record. It was further urged that

the whole confession is destroyed by the other evidence.

Shri Sushil Kumar pointed out that, the confession, as

it stands proved, is in English language and there was a

clear-cut admission on the part of A. K. Suri (PW-2)

that he had not explained the same to the accused.

Basically, the argument of Shri Sushil Kumar was that

the confession could not have been relied upon, insofar

as the offences under the R.P.C. were concerned.

According to the learned Counsel, the confession could

be relied upon only for the offences under the TADA Act.

The learned Counsel heavily relied on the language of

Section 15.

20. As against this, Shri Rawal, learned ASG urged that

there was clear-cut evidence on record that the accused

spoke in English, in which language he confessed also. 2

He further pointed out 4 that necessary caution was

administered to the accused inasmuch as he was told that

the said confession could be used in evidence against

the accused/appellant. Learned ASG further contended

that necessary circumstances were explained and

signature was appended to the confession and, therefore,

there was no question of rejecting the confession. As

regards the last point urged by Shri Sushil Kumar, the

learned ASG has pointed out that the question of

admissibility of confession against the offences under

the RPC was no more res-integra and was finally answered

by this Court in a decision of Five Judges Bench

reported in Kartar Singh Vs. State of Punjab [1994 (3)

SCC 569]. Besides this, Shri Rawal also pointed out

that the oral evidence regarding the confession by A. K.

Suri (PW-2) remained unchallenged in the cross-

examination on behalf of the defence. He also pointed

out that the confession was corroborated as the chit

(Exhibit D-16) was brought on record. He answered the

criticism of the learned Senior Counsel by pointing out

that some witnesses were not examined as they were

either dead or it was obvious that they were not present

at the time of incident. It is this basis that the

confession is now to be tested.

21. It will be better first to examine in detail the 2 oral evidence of A.K. Suri 5 (PW-2). The said witness

deposed regarding presence of the accused in the Court

on 27.6.1991 and about his making confessional

statement. The witness reiterated that the accused was

asked number of questions regarding free will on the

part of accused to make a confession. He also

specifically asserted that he had informed the accused

that he was not bound to make a confessional statement

and that if he makes the one, the same would be read

against him. The witness also reiterated that the

accused was given time to ponder over and even after

pondering over the issue of making the confessional

statement, the accused, of his own free will, was

prepared to give confessional statement which was

recorded in his own words by the witness. The witness

also identified signature of the accused. He had also

produced a questionnaire and asserted that, even after

the questionnaire was given to the accused, one and half

hours' time was given to the accused to ponder over,

which opportunity was utilized by the accused. The

witness first proved his writing about being satisfied

that the accused was prepared to offer confessional

statement of his own free will and then proved the

statement. He also reiterated that the accused put his

signature on each and every page and after the statement 2 6 was recorded, it was read over and was understood by the

accused, who, only after accepting the same to be

correct, put the signatures. The witness was subjected

to cross-examination by the defence. However, we are

constrained to observe that his cross-examination was a

lackluster. Some confusion was tried to be created

regarding Exh. PWAK, a carbon copy and Exh.PWAK1 also

not being done over the original and being made over a

carbon copy. However, after seeing the documents and

hearing Shri Rawal, we are convinced that there was no

confusion and the original confession as well as the

preliminary documents were made over to the Court. Some

unnecessary questions were put to the effect that

whether the witness was in uniform while recording the

statement. Some insignificant circumstances were also

brought that the word `voluntary' was not written while

recording preparedness of the appellant to record the

confession. He asserted that he had dispatched the

confessional statement report. The last suggestion given

to the witness in the cross-examination was almost fatal

to the defence which was to the effect that he did not

interpret statement of the accused because the same was

written in the language in which the accused gave it.

He was again specifically asked about his satisfaction

statement being on page No.10, to which he specifically 2 7 answered that the accused had finished his statement at

page 9 and therefore, he wrote his satisfaction at page

No.10. Again, almost at the end of the cross-

examination, it has come that the witness had taken the

statement in English and when the accused was talking to

the witness, he was taking in English. In short, the

whole cross-examination does not dent the case of the

prosecution and it can be inferred that the criticism

against the confession that it was not recorded in the

language of the accused is not justified. There is

absolutely no effort made by the defence to establish

that the statement was not made in the language of the

accused persons. Much was said by Shri Sushil Kumar,

learned Senior Counsel that the Original statement is

not on record. However, Shri Rawal, learned ASG

painstakingly pointed out from the record that the

confession cannot be foiled on that count and the

original confession was very much available on the

record.

22. Shri Sushil Kumar, learned Senior Counsel, had

specifically raised a question regarding witnesses

Gunwant Singh and Ghulam Qadir Sofi not being examined

to corroborate any role ascribed to them. According to

the learned Senior Counsel, non-examination of Gunwant

Singh and Ghulam Qadir Sofi was extremely material and 2 8 created a dent in the prosecution story. Shri Rawal,

learned ASG pointed out that, looking at the overall

evidence of the witnesses, more particularly, all those

who were present at the spot, it cannot be gathered that

Gunwant Singh was present at the time of incident.

Insofar as the evidence of Ghulam Qadir Sofi is

concerned, it was pointed out by Saidur Rehman (PW-17)

that said Ghulam Qadir Sofi was already dead at the time

of trial. Therefore, the criticism levelled by the

learned defence Counsel would be of no consequence.

23. Shri Sushil Kumar then urged that the so-called

confession given by this appellant in other matter was

disbelieved right upto the Supreme Court. He relied

upon the decision in Mohd. Ayubdhar & Anr. Vs. State of

NCT of Delhi [2000 (10) SCC 296]. This was also a case

where the charges were under Section 3, 4 and 5 of TADA

Act alongwith Section 302 read with Section 120 IPC.

This was a case where the cassette wherein the

confession was recorded was destroyed. From the second

cassette, it was seen that the concerned officer had not

given any warning to the accused that he was not bound

to make the statement. The officer also had

categorically admitted that no specific warning had been

given to the accused. It was on that basis that this

Court did not choose to rely upon the confession. Shri 2 9 Sushil Kumar heavily relied on this ruling and urged to

take the same course. We have already given our reasons

for accepting the confession. In that view, we cannot

rely on this judgment. We are unable to accept this

contention for the simple reason that the facts of the

said case in the reported decision are neither relevant

nor admissible for the present purposes. Shri Sushil

Kumar also relied on a reported decision in Prakash

Kumar @ Prakash Bhutto Vs. State of Gujarat [2007 (4)

SCC 266] wherein the confession was disbelieved. We do

not find any similarity between the facts in the afore-

mentioned reported decision and the facts which have

come in the present matter. The confession in this case

was disbelieved on merits and it was made by the co-

accused. The facts are clearly distinguishable. The

learned Senior Counsel further relied on Abdulvahab

Abdul Majid Shaikh & Ors. Vs. State of Gujarat etc. etc.

[2007 (9) SCC 293], more particularly on observations in

Paragraphs 9 and 13 thereof. However, the observations

in Para 9 relate to the confession of the co-accused and

its admissibility and reliability. The Court, in fact,

relied upon the confession taking the view that there

was no coercion, threat or any undue influence to the

accused. The other facts are not apposite to the

controversy. We, therefore, reject the contention of 3 the learned Senior Counsel. 0

24. Our attention was also drawn to the Constitution

Bench decision reported in Kartar Singh Vs. State of

Punjab [1994 (3) SCC 569] and more particularly, to the

paragraphs 263 and 265 thereof. There can be no

question about these principles which have been

suggested by way of guidelines by this Court. In fact,

at the end of the Paragraph 263 of the judgment, the

Court has recommended that the Central Government should

take note of the guidelines and incorporate them by

appropriate amendments in the Act and the Rules. We

have not been pointed out any such amendments either in

the Act or in the Rules. However, when we see the

guidelines laid down and compare them with the care

taken in this case about the confession, we feel

completely satisfied that the confession was properly

recorded and it was also recorded in the free

atmosphere, as A.K. Suri (PW-2) had given sufficient

time to the accused for the reflection. The accused had

also at no point of time complained regarding any

coercion to any authority. The defence, as is apparent

from examination of the appellant-accused under Section

313 of the Cr.P.C., is that he had not given any

statement at all. In view of this, we do not think that

the observations of this Court in Paragraphs 263 and 265 3 of the aforementioned 1 decision would be of any

consequence for the decision of this matter. In fact,

in Paragraph 406 of the judgment, this Court has spoken

about the importance of confession and the various

aspects attached to it such as appearance of objectivity

and necessity of removing the suspicion and has gone to

the extent of saying that the provision itself is

unfair, unjust and unconscionable, offending Articles 14

and 21 of the Constitution of India. This was in a

minority judgment by Hon'ble K. Ramaswamy, J. Hon'ble

Sahai, J., however, in Paragraph 456, went on to

observe:-

"The word `offence' used in the article should be given its ordinary meaning. It applies as much to an offence committed under TADA as under any other Act. The word `compelled' ordinarily means `by force'. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing."

His Lordship further observed that a confession

made by an accused or obtained by him under coercion,

suffers from infirmity unless it is made freely and

voluntarily. His Lordship then found that Section 15

was violative of Articles 20(3) and 21 of the

Constitution. Again the observations, though very

strongly worded, do not become binding since

constitutionality of Section 15 has been upheld by the 3 2 majority judgment authored by Hon'ble Pandian, J. We

are quite mindful of the strength of the language used

in the opinions expressed by two learned Judges.

However, even with that, we cannot say that this

confession suffers from any defects.

25. Similarly, our attention was also invited to a

decision in State (NCT of Delhi) vs. Navjot Sandhu @

Afsan Guru etc. etc. [2005 (11) SCC 600] (more

particularly to para 185). This was again a judgment

concerning the terrorist attack on the Parliament of

India by five fidayeen militants. It may immediately be

observed that this was not a case under TADA Act, but

under the Prevention of Terrorism Act (POTA), 2002.

Very heavy reliance was placed on Paragraph 185 therein,

which deals with the lapses and violations of procedural

safeguards guaranteed in the statute, on account of

which the confessional statement of Afzal was not relied

upon by this Court. The learned Senior Counsel was at

pains to point out that in this case also, there were

lapses and violations of procedural safeguards

guaranteed in the statute. We, however, did not find

any such lapses or violations which would affect the

credibility of the confession. On the other hand, we

found that the confession was fully acceptable and

reliable.

3

26. A reference was made 3 to the decision in State

through Superintendent of Police, CBI/SIT Vs. Nalini &

Ors. [1999 (5) SCC 253]. However, we must observe that

the learned Senior Counsel has not, in any manner, shown

as to how any of the observations made therein apply to

the present matter. We would leave the matter at that.

27. As against this, Shri Rawal, learned ASG

highlighted two decisions before us, they being S.N.

Dube Vs. N.B. Bhoir & Ors. [2000 (2) SCC 254] and

Ravinder Singh alias Bittu Vs. State of Maharashtra

[2002 (9) SCC 55]. The other two decisions relied upon

by learned ASG are Lokeman Shah & Anr. Vs. State of W.B.

etc. etc. [2001 (5) SCC 235] and Abdulvahab Abdul Majid

Shaikh & Ors. Vs. State of Gujarat etc. etc. (cited

supra). Shri Rawal pointed out that in the decision in

S.N. Dube Vs. N.B. Bhoir & Ors. (cited supra), in fact,

the confession was recorded in the police station and as

such, the guidelines provided in Kartar Singh Vs. State

of Punjab (cited supra) were not strictly adhered to.

Further, our attention was invited to the observations

made by this Court in the following terms:-

"Therefore, merely because some of those guidelines were not followed while recording the confessions it cannot for that reason be held that the said confessions have lost their evidentiary value. If while recording the 3 4 confessions the police officer had followed all those guidelines also then that would have been a circumstance helpful in inferring that the confessions were made after full understanding and voluntarily."

It would, therefore, be clear, as rightly contended

by Shri Rawal that merely because guidelines in Kartar

Singh Vs. State of Punjab (cited supra) were not fully

followed, that by itself does not wipe out the

confession recorded. We have already given our reasons

for holding that the confession was recorded by A.K.

Suri (PW-2) taking full care and cautions which were

required to observe while recording the confession. In

Ravinder Singh alias Bittu Vs. State of Maharashtra

(cited supra), it has been observed in Paragraph 19 that

if the confession made by the accused is voluntary and

truthful and relates to the accused himself, then no

further corroboration is necessary and a conviction of

the accused can be solely based on it. It has also been

observed that such confessional statement is admissible

as a substantive piece of evidence. It was further

observed that the said confession need not be tested for

the contradictions to be found in the confession of the

co-accused. It is for that reason that even if the

other oral evidence goes counter to the statements made

in the confession, one's confession can be found to be

voluntary and reliable and it can become the basis of 3 the conviction. In 5 this case, there is ample

corroboration to the confession in the oral evidence as

well as the documentary evidence in shape of a chit,

which is referred to in the said confession. There is a

clear reference that the Personal Assistant, who was a

non-Kashmiri and kept a beard, had sent a slip inside.

Ultimately, that slip was found by the police, which

corroborate the contents in the confession. In our

opinion, that is a sufficient corroboration to the

confession. In Lokeman Shah & Anr. Vs. State of W.B.

etc. etc. (cited supra), this Court considered the

confession which was under Section 164 Cr.P.C.

Therefore, this case is not of much importance to us.

In the last referred case of Abdulvahab Abdul Majid

Shaikh & Ors. Vs. State of Gujarat etc. etc. (cited

supra), a plea was raised that though the Chief Judicial

Magistrate was readily available to record the

confession, the police officer recorded the confession

himself. This Court, in Paragraph 9 of the said

judgment, observed as follows:-

"The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession."

The Court ultimately came to the conclusion that 3 6 the confession did not suffer from these defects. In

Paragraph 13 of the said judgment, the question of

availability of the Chief Judicial Magistrate was

discussed. Further the Court observed:-

"Under Section 15 of the TADA, a police officer is permitted to record the confessional statement of the accused and certain strict procedure is prescribed.

The appellants have no case that this procedure has in any way been violated. Merely because the confession was retracted, it may not be presumed that the same was not voluntary."

The confession was accepted by this Court and the

appeal was dismissed.

28. All these cases suggest that the only test which

the Court has to apply is whether the confession was

voluntary and free of coercion, threat or inducement and

whether sufficient caution is taken by the police

officer who recorded the confession. Once the

confession passes that test, it can become the basis of

the conviction. We are completely convinced that the

confession in this case was free from all the

aforementioned defects and was voluntary.

29. We have gone through the complete confession as was

given and we are of the clear opinion that the said

confession was totally voluntary and all the necessary

precautions were taken while recording the same. We

are, therefore, of the opinion that the appellant had, 3 7 in fact, given the confession voluntarily and he was

not, in any way, compelled to give the same. Once that

position is clear, it only remains to be seen as to

whether the said confession could be relied on

exclusively for proving the offence u/s. 302 of the RPC.

30. A very substantial argument was raised before us

that, considering the language of Section 15 of the TADA

Act, the said confession could have been used only

against the TADA Act offences namely Section 3 of the

TADA Act which was charged against the accused/appellant

and it cannot be used for a Non-TADA offence like

Section 302 of the RPC and it could not even be read in

order to prove the said offence. This question is

already settled against the defence as we have earlier

pointed out. Shri Sushil Kumar urged that we should at

least make a reference to the larger Bench as the case

was not correctly decided nor the Judgment was properly

given. We are unable to accept the argument of Shri

Sushil Kumar. The aforementioned judgment is by a three

Judge Bench and is binding on us. This is apart from

the fact that the facts relating to Section 3 (3) of the

TADA Act and the facts relating to Section 302 of RPC

are completely inter-mixed in this matter. They are the

part of the same transaction. A plain reading of the

confession clearly goes to show that the accused was 3 guilty of conspiring or 8 attempting to commit or

advocating, abetting, advising or inciting or knowingly

facilitating the commission of a terrorist act or any

act preparatory to a terrorist act. The act of killing

Moulvi Farooq comes within the definition of `terrorist

act' as given in Section 2 (h) r/w. Section 3 (1) of

the TADA Act inasmuch as, in order to achieve the

objectives as described in Section 3 (1), Moulvi Farooq

was put to death by firing at him. The confession in

clearest possible terms and in detailed manner shows

formation of a group of terrorists, who were in all

seven in number. The confession of accused refers to

the training in the use of fire arms and his visit to

Pakistan in the year 1989 by crossing the border from

Chowkibal side which is on Kupwara side. The appellant

has given the whole outfit including the names of leader

and other companions and the confession also refers to

the fire arms brought by the group of terrorists from

Pakistan and the training which was for bringing into

effect the terrorist activities in the Kashmir valley.

The appellant then gives a graphic account of the five

terrorists' action in the years 1989 and 1990. The

appellant also gives a detailed account about the

members in the group who had taken active part in those

activities. The last activity was about killing of 3 Mirwaiz Moulvi 9 Farooq on 21.5.1991. While elaborating

the 5th terrorist activity, it was confessed by the

appellant that Moulvi Farooq was considered to be an

agent of the CBI and the Government of India and two

days prior to his death, one Abdulla Bangroo had ordered

killing of Mohd. Farooq. At the time when these orders

were given, Ajmal Khan and the appellant herein were

with Abdullah Bangroo. It is clear from the confession

that the whole modus operandi was discussed and after

discussions, the task was given to himself, Bilal and

Inayat. They had also visited the house of Moulvi

Farooq and met the Chowkidar five days prior to the

incident. They again visited the house of deceased

where the appellant had a talk with deceased Moulvi

Farooq and the financial help which he had promised for,

was sought. The date and time for further meeting was

decided at that time itself. He then gave reasons for

not killing Moulvi Farooq on that day itself.

31. The appellant, thereafter, gave a complete story as

to how they went to Moulvi's house and further that he

was carrying a German pistol, Inayat was carrying a

French pistol and Bilal was carrying a Chinese pistol.

According to him, it was decided that it was Bilal who

was to fire on Moulvi while appellant and Inayat were

to give him protection from others. Detailed description 4 0 is thereafter given as to how they went from Naidyar by

Shikara by giving Rs.20/- to him and how they came to

Durgah Hazratbal. It has then come in the confession

that from Hazratbal they walked down to the house of

Moulvi Farooq and met the Chowkidar whom they had met

earlier. A very significant fact is then stated that,

after they met the Personal Assistant of Moulvi Saheb,

the said Personal Assistant gave a slip and the Mali who

had taken the chit inside came out and informed that

Moulvi Saheb was calling them inside. Therefore, they

all got up from the chair and Bilal went inside the room

of Moulvi, while the appellant and Inayat took

positions and took out guns and Inayat had also fired

one round after Bilal had started firing inside Moulvi's

room. The accused had also taken active part in ordering

others to put their hands up. Thereafter, they ran away.

He also confirmed that his shirt was held by Gulam Qadir

Sofi, but he got himself released and ran away. The

details of the act, of their movements after the act

and about the chit totally convince that this confession

of the accused was not only a voluntary confession but

was truthful one. Anxiety on the part of the appellant

to given press note after the act has also figured in

the confession. It has also come in the confession of

the appellant herein that the appellant got Rs.35,000/- 4

and he, therefore, went 1 to Delhi to terrorise the

Central Government. He then also referred to his

activity in Delhi and his total stay in Delhi. It has

come in the confession that their group carried out five

bomb blasts in Delhi. A graphic description thereof has

also come in the confession. It has also come in the

confession that he had visited Pakistan, Lahore and

Muzzaffarabad to meet other members of the group namely

Hyder, Hanif Hyder, Nasir Khan and Yusuf Bangroo on a

fake passport. The said confession also gives details

that the said passport was issued in Sikar, Rajastan

with Visa of Pakistan. He also gave details of the

dress which he was wearing on the day when Moulvi was

put to death. All these details cannot be said to

simply have been imagined by A. K. Suri (PW 2) so as to

include the same in the confession of the accused. In

his examination under Section 313 of the Code of

Criminal Procedure, the appellant has flatly denied of

having made any statement, much less confessional

statement to Shri A.K.Suri. His answer to a question is

as follows :

"I was arrested by the Delhi. I didn't make any statement before Mr.Suri. Mr. Suri has indulged in making a wrong statement. In none of the cases, I made my statement. Mr. Suri, Company Officer of a case was a Supervising Officer. Whatever used to come in his heart, he used to do that. He was conducting all proceedings at Delhi. "

4 2

The afore-cited answer suggests that the appellant, at

no point of time, had ever made any statement to Shri A.

K. Suri either in Delhi or in Srinagar. Very strangely,

however, in Ground A of the appeal, a portion of

confessional statement is quoted as under:

"Inayat came out of P. A.'s room and had also fired one round as Bilal started firing inside Moulvi's room. I had also taken up the position told the occupant of the P.A.'s room to hands up. "

Relying on this, the ground further says as under:

"Such a conviction and sentence is prima facie wrong as the appellant at the best could be held guilty of abetting the crime of murder and not committing murder. Therefore, the life sentence imposed upon him under Section 302 RPC is wrong in law....... "

32. In view of the above, it is clear that the

appellant herein on one hand has chosen to rely upon a

part of the confession and on the other hand, he asserts

that he had, at no point of time, made any confessional

statement. We do not wish to rely on this circumstance.

However, we have made mention of it only to show

hollowness of defence on the part of the appellant.

33. Even otherwise, we are fully satisfied that the

confession was indeed made by the appellant and the

details given in the confession and the meticulous

planning that went behind committing murder of Moulvi

Farooq, which has been reflected in the confession, not 4 3 only render it voluntary, but truthful also. We are

thoroughly convinced that this confession is not only a

good, voluntary and truthful confession but a reliable

one also and the trial Court has committed no mistake

whatsoever in relying upon the said confession. Once we

accept the confession made u/s. 15 of the TADA Act,

there is no necessity of any other evidence being

required. A very halting argument was made before us

that the charge was only for the conspiracy and it was

clear that the accused was convicted for the offence

u/s. 302 of RPC simplicitor. We do not think that such

an argument can be made when the appellant has taken

part in the conspiracy. The way the appellant himself

has worked in the success of the conspiracy, the way he

has handled the guns and accompanied two other

assailants to the house of Mirwaiz Moulvi Faooq and the

manner in which the plan was executed convince us that

the order is absolutely correct. We have not been able

to see nor the learned Senior Counsel appearing on

behalf of the appellant is able to point out any

prejudice being caused on account of defect of charge,

which question was not even argued before the trial

Court. We do not find any merit in the instant appeal

and proceed to dismiss the same. Consequently, the

appeal is dismissed.

4 4

................

J. [V. S. Sirpurkar]

.........................J. [Dr. Mukundakam Sharma]

New Delhi;

July 21, 2010.

4 5