MOHD. ARIF @ ASHFAQ versus STATE (NCT OF DELHI)

[2022] 7 S.C.R.

MOHD. ARIF @ ASHFAQ

STATE (NCT OF DELHI)

(Review Petition (Crl.) Nos. 286-287 of 2012)

(Criminal Appeal Nos. 98-99 of 2009)

NOVEMBER 03, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHATAND BELA M. TRIVEDI, JJ.]

Review Petition – Death Penalty – In firing incident insideLal Quila, three army jawans received fatal injuries and lost theirlives – Review Petitioner was tried and was awarded death sentence– Death sentence was confirmed by High Court – PetitionerDpreferred appeal before Supreme Court – The challenge was negatedand award of death to the petitioner was affirmed – Review petitionsbefore Division Bench were dismissed – Curative petition filed byreview petitioner also dismissed –Thereafter writ petition waspreferred on ground that the review petitions in matters arising outof award of death sentence be heard by three judge bench in openECourt –On review, held: Challenge raised in these review petitionswere on grounds such as admissibility of electronic evidence,reliability and admissibility of disclosure statement, relevancy ofrecovered ammunition and possibility of rehabilitation of the reviewpetitioner – Electronic evidence in form of CDRs which was withoutFany appropriate certificate must be eschewed – Even aftereschewing such circumstances directly attributable to the CDRs,the other circumstances on record do clearly spell out and provebeyond any doubt the involvement of review petitioner in the crimein question – In review jurisdiction, it will not be possible to enterinto questions regarding admissibility of such disclosure statementGon issues of fact – Submission that recovery of ammunition orencounter of ‘A’ could not be associated with the disclosure statementof the review petitioner is not quite correct – Nothing on recordwhich can be taken to be mitigating circumstance in favour of thereview petitioner – Suggestion that there is possibility of retributionHand rehabilitation, is not made out from and supported by any

material on record – Review petitions dismissed – Evidence Act,1872 – s.65B.

Review – In review jurisdiction, it will not be possible to enterinto questions regarding admissibility of disclosure statement onissues of fact.

Dismissing the review petitions, the Court

HELD: 1. In review petitions, the challenge is raisedprincipally on four grounds: -

(a) The concerned Courts committed error in allowing callrecords to be admitted in evidence, in the absence of anappropriate certificate under Section 65B of the Indian EvidenceAct, 1872

(b) The disclosure statements of the review petitioner mustbe taken to be inadmissible on account of ill treatment meted outto him during the intervening night between his actual arrest andhis formal arrest.

(c) The recovery of ammunition or the encounter of oneAbu Shamal, who was stated to be the accomplice of the petitioner,at Batla House, New Delhi, could not be associated with thedisclosure statement of the review petitioner.

(d) Any possibility of retribution and rehabilitation of thereview petitioner, or that he would continue to be threat to thesociety, was not considered by the Courts. [Para 12][807-G; 808-A-B]

2. Since the instant matter pertains to award of deathsentence, this review petition must be considered in light of thedecisions made by this Court in Anvar P.V. and Arjun Panditrao.Consequently, one must eschew, for the present purposes, theelectronic evidence in the form of CDRs which was without anyappropriate certificate under Section 65-B(4) of the Evidence Act.Circumstances mentioned at Serial Nos. ‘h’ and ‘j’ becomeextremely weak as the tracing of calls received by PWs 39 and41 to Mobile was possible only through CDRs. Thesecircumstances must not, therefore, be taken into account. Evenafter eschewing circumstances ‘h’ and ‘j’ which were directlyattributable to the CDRs relied upon by the prosecution, the other

[2022] 7 S.C.R.

Acircumstances on record do clearly spell out and prove beyondany doubt the involvement of the review petitioner in the crimein question. [Paras 23-26][822-D-E, H; 823-A]

Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :[2014] 11 SCR 399 and Arjun Panditrao Khotkar v.BKailash Kushanrao Gorantyal & Ors. (2020) 7 SCC1- relied on.

3. Grounds ‘b’ and ‘c’ are purely factual in nature. Thedisclosure statement, as matter of fact, was held to have beenproved by the Courts below and this Court. In review jurisdiction,Cit will not be possible to enter into questions regardingadmissibility of such disclosure statement on issues of fact. Afterthe person concerned named Abu Shamal alias Faisaln died inthe encounter, certain fire arms and ammunition were recovered.The submission that such recovery of ammunition or theencounter of Abu Shamal could not be associated with theDdisclosure statement of the review petitioner is not quite correct.This Court therefore rejects both the grounds taken in ‘b’ and‘c’ as referred. [Para 27][823-B, C-D]

4. There is nothing on record which can be taken to be amitigating circumstance in favour of the review petitioner. TheEsuggestion that there is possibility of retribution andrehabilitation, is not made out from and supported by any materialon record. On the other hand, the aggravating circumstancesevident from the record and specially the fact that there was adirect attack on the unity, integrity and sovereignty of India,Fcompletely outweigh the factors which may even remotely bebrought into consideration as mitigating circumstances on record.The submission so advanced under ground (d) does not meritany acceptance and is, therefore, rejected. [Para 30][831-G-H;832-A-B]

GMohd. Arif alias Ashfaq v. State (NCT of Delhi) (2011)13 SCC 621 : [2011] 10 SCR 56; Mohd. Arif AliasAshfaq v. Registrar, Supreme Court of India & Ors.(2014) 9 SCC 737 : [2014] 11 SCR 1009; Mohd. Arifalias Ashfaq v. Registrar, Supreme Court of India &Ors. (2019) 9 SCC 404; Vikram Singh alias Vicky Walia

MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)

& Anr. v. State of Punjab & Anr. (2017) 8 SCC 518 :[2017] 8 SCR 177; Akshay Kumar Singh v. State (NCTof Delhi) (2020) 3 SCC 431; Shafi Mohammed v. Stateof Himachal Pradesh (2018) 2 SCC 801; VasantaSampat Dupare v. State of Maharashtra (2017) 6 SCC631 : [2017] 3 SCR 850; State (NCT of Delhi) v. NavjotSandhu alias Afsan Guru (2005) 11 SCC 600 : [2005]2 Suppl. SCR 79; Tomaso Bruno & Anr. v. State of UttarPradesh (2015) 7 SCC 178 : [2015] 1 SCR 721 andSonu alias Amar v. State of Haryana (2017) 8 SCC 570: [2017] 8 SCR 151– referred to.

Case Law Reference

INHERENT JURISDICTION: Review Petition (Crl.) Nos. 286-287 of 2012 in Criminal Appeal Nos. 98-99 of 2009.

From the Judgment and Order dated 10.08.2011 of this Court inCriminal Appeal Nos. 98-99 of 2009.

Siddharth Agarwal, Sr. Adv., Abhinav Sekhri, Amartya Kanjilal,Vishwajeet Bhati, Ms. Arshiya Ghose, Mohd. Irshad Hanif, Advs. forthe Petitioner.

S V Raju, ASG, Sairica Raju, Ms. Binu Tamta, Ms. Suhashini Sen,Ms. Swati Ghildiyal, Ashutosh Gadhe, Anshuman Singh, B. V. BalaramDas, Advs. for the Respondent.

[2022] 7 S.C.R.

AThe Judgment of the Court was delivered by

UDAY UMESH LALIT, CJI.

1. These review petitions arise out of the judgment and orderdated 10.8.2011[1] passed by this Court in Criminal Appeal Nos. 98-99/2009.B

2. According to the prosecution, on the night of 22.12.2000 someintruders entered the area where the Unit of 7 Rajputana Rifles of theIndian Army was stationed inside the Red Fort, New Delhi. In the firingthat was opened by the intruders, three Army jawans lost their lives.The intruders then left by scaling the rear-side boundary wall of the RedCFort. This led to the lodging of FIR No. 688/2000 registered with KotwaliPolice Station, New Delhi in respect of offences punishable under Sections302, 307, 186, 353, 120-B, 121, 121-A, 216 and 201 of the Indian PenalCode, 1860[2] read with Sections 25, 27, 54 and 59 of the Arms Act, 1959,Section 14 of the Foreigners Act, 1946, Sections 4 and 5 of the ExplosiveDSubstances Act, 1908 and Sections 420, 468, 471, 474 and 34, IPC. Inthe investigation, the involvement of the present review petitioner wasmade out.

3. The review petitioner, who was tried for said offences, wasawarded death sentence vide judgment and order dated 31.10.2005Epassed by the Court of Additional Sessions Judge, Delhi in SessionsCase Nos. 1/2005, 2/2005, 5/2005, 7/2005, 8/2005, 9/2005, 10/2005 and11/2005, which arose out of the aforestated FIR. The award of deathsentence was subject to confirmation by the High Court.

4. The matter was thereafter considered by the High Court inFDeath Sentence Reference No. 2/2005 with Criminal Appeal Nos. 891/2005, 892/2005, 907/2005, 927/2005, 944-945/2005, 946/2005, 273/2006and 504/2006. The view taken by the trial Court was affirmed by theHigh Court vide its judgment dated 13.9.2007[3].

5. The matter then reached this Court in the form of CriminalAppeal Nos. 98-99/2009 at the instance of the review petitioner. However,Gthe challenge was negated by this Court and the award of death sentenceto the petitioner was affirmed vide judgment dated 10.8.2011, which hasresulted in filing of the instant review petitions.

1 Mohd. Arif alias Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621

2 “IPC” for shortH3 (2007) SCC Online Del 1259

6. The instant review petitions had initially come up before theBench of two Judges and by order dated 28.8.2012, the review petitionswere dismissed. Curative Petition (Crl.) Nos.99-100/2013 filed by thereview petitioner sought to challenge the view taken by the DivisionBench of this Court in dismissal of the appeals, as well as, the reviewpetitions. However, the curative petitions were also dismissed by thisCourt vide order dated 23.1.2014.

7. Soon thereafter, Writ Petition (Crl.) No. 77/2014 was preferredby the review petitioner submitting inter alia, that the review petitionsin matters arising out of award of death sentence be heard by Benchof three Judges and in open Court. The Constitution Bench of this Courtby its judgment dated 2.9.2014[4] concluded that in all cases in whichdeath sentence was awarded by the High Court, such matters be listedbefore Bench of three Judges. The relevant observations in paragraph39 were as under:

“39. Henceforth, in all cases in which death sentence has beenawarded by the High Court in appeals pending before the SupremeCourt, only bench of three Hon’ble Judges will hear the same.This is for the reason that at least three judicially trained mindsneed to apply their minds at the final stage of the journey of aconvict on death row, given the vagaries of the sentencingprocedure outlined above. At present, we are not persuaded tohave minimum of 5 learned Judges hear all death sentence cases.Further, we agree with the submission of Shri Luthra that reviewis ordinarily to be heard only by the same bench which originallyheard the criminal appeal. This is obviously for the reason that inorder that review succeeds, errors apparent on the record haveto be found. It is axiomatic that the same learned Judges allegedto have committed the error be called upon now to rectify sucherror. We, therefore, turn down Shri Venugopal’s plea that twoadditional Judges be added at the review stage in death sentencecases.”

8. question still arose: whether in matters where the reviewpetitions had already stood rejected when the aforementioned decisionwas rendered by the Constitution Bench of this Court, could there be

4 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2014) 9 SCC737

DEF

Areopening of the matter and the review petition be reheard? subsequentConstitution Bench in its order dated 19.1.2016[5] observed as under: -

“9. In the circumstances therefore and especially in view of thefact that the petitioner is perhaps the only person that will sufferthe denial of the right to an open court hearing, we are inclined toBmodify the judgment on review and direct that the petitioner shallalso be entitled to seek reopening of the dismissal of the reviewpetitions for an open court hearing within one month from today.We permit the petitioner to raise all such additional grounds insupport of the said review petition as may be legally permissibleto him.”C9. In this backdrop, the instant review petitions are listed beforeus for rehearing.

10. At this stage, we may set out certain circumstances whichwere found to have been proved by the High Court and this Court. InDparagraph Nos. 182-191 of the judgment which is presently under review,it was observed as under: -

“182. The High Court has held proved the following circumstancesagainst the appellant:

“(a) On the night of 22-12-2000 there was an incident of firingEinside Lal Quila when some intruders had managed to enterthat area of Lal Quila where the unit of 7[th] Rajputana Rifles ofthe Indian Army was stationed.

(b) In that incident of shooting the intruders had firedindiscriminately from their AK-56 rifles as result of whichFthree army jawans received firearm injuries and lost their lives.

(c) The death of three army jawans was homicidal.

(d) Immediately after the quick reaction team of the army firedback upon the intruders as result of which the intruders escapedfrom the place of occurrence by scaling over the rear sideGboundary wall of Lal Quila towards the Ring Road side andwhen the place of occurrence was searched by the army menmany assault rifle fired cartridge cases were recovered fromthe place of occurrence.

5 Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India & Ors., (2019) 9 SCCH404

(e) Immediately after the intruders who had resorted to firinginside the army camp had escaped from there, calls were madeby someone on the telephones of two BBC correspondentsone of whom was stationed at Srinagar and the other one wasstationed at Delhi office of BBC and the caller had informedthem about the shooting incident inside Lal Quila and had alsoclaimed the responsibility of that incident and that that was thejob of Lashkar-e-Toiba, which the prosecution claims to be abanned militant organization indulging in acts of terrorism inour country.

(f) On the morning of 23-12-2000 one AK-56 rifle wasrecovered from place near Vijay Ghat on the Ring Roadbehind Lal Quila.

(g) On 23-12-2000 when the policemen conducted searcharound Lal Quila in the hope of getting some clue about theculprits they found one piece of paper lying outside Lal Quilanear the rear side boundary wall towards Ring Road side andon that piece of paper one Mobile Phone No. [REDACTED] waswritten.

(h) Mobile Phone No. [REDACTED] was used for making callsto the two BBC correspondents (PWs 39 and 41) immediatelyafter the shooting incident inside Lal Quila and the caller hadclaimed the responsibility for that incident and had informedthem that the incident was the job of Lashkar-e-Toiba.

(i) The aforesaid mobile phone number found written on pieceof paper lying behind Lal Quila had led the police up to FlatNo. 308-A, Ghazipur, New Delhi where accused Mohd. Arifalias Ashfaq was found to be living and when on beingsuspected of being involved in the shooting incident he wasapprehended on the night of 25-12-2000/26-12-2000 one pistoland some live cartridges were recovered from his possessionfor which he did not have any licence.

(j) At the time of his arrest in case FIR No. 688 of 2000 onemobile phone having No. [REDACTED] was recovered from hispossession and it was the same mobile number from whichcalls had been made to the two BBC correspondents for

informing them about the incident and Lashkar-e-Toiba beingresponsible for that incident.

(k) Immediately after his apprehension accused Mohd. Arifalias Ashfaq admitted his involvement in the shooting incidentinside Lal Quila and also disclosed to the police about his anotherhide-out at G-73, Batla House, Muradi Road, Okhla, New Delhiand pursuant to his disclosure the police had gone to that hide-out where the occupant of that house started firing upon thepolice team and when the police team returned the firing, thatperson, who was later on identified by accused Mohd. Arifalias Ashfaq to be one Abu Shamal alias Faizal, died becauseof the firing resorted to by the policemen. From House No. G-73, where the encounter had taken place, one AK-56 rifle andsome live cartridges and hand grenades were recovered.

(l) Accused Mohd. Arif alias Ashfaq while in police custodyhad also disclosed to the police that one assault rifle had beenthrown near Vijay Ghat after the incident. The police hadalready recovered one AK-56 rifle from Vijay Ghat on themorning of 23-12-2000. Accused Mohd. Arif alias Ashfaq hadthus the knowledge about the availability of that AK-56 rifle atVijay Ghat.

(m) Accused Mohd. Arif alias Ashfaq had also got recoveredone AK-56 rifle and some ammunition from behind Lal Quilaon 26-12-2000.

(n) Accused Mohd. Arif alias Ashfaq had also got recoveredthree hand grenades from some place behind his computercentre in Okhla on 1-1-2001 pursuant to his another disclosurestatement made by him while in police custody.

(o) When the assault rifle fired cartridge cases which wererecovered from the place of occurrence by the army men afterthe intruders had escaped from there were examined by theballistic expert along with the AK-56 rifle which was recoveredat the instance of accused Mohd. Arif alias Ashfaq from behindLal Quila on 26-12-2000 and the AK-56 rifle which wasrecovered from Vijay Ghat on 23-12-2000 it was found by theballistic expert (PW 202) that some of the assault rifle firedcartridge cases had been fired from the rifle recovered from

behind Red Fort and some had been fired from the other rifleIh was recovered from Vijay Ghat.

(p) Appellant-accused Mohd. Arif alias Ashfaq was Pakistaninational and had entered the Indian territory illegally.

(q) After making illegal entry into India appellant-accusedMohd. Arif alias Ashfaq had been representing to the peoplecoming in his contact during his stays at different places thathe was resident of Jammu and was doing the business ofshawls while, in fact, he had no such business and he had beencollecting money through hawala channels.

(r) Accused Mohd. Arif alias Ashfaq had obtained forgedration card, Ext. PW-164/A wherein not only his house numbermentioned was not his correct address but even the name ofhis wife shown therein was not Rehmana Yusuf Farukhi. Hehad also forged his learner driving licence, Ext. PW-13/C aswell as one document, Ext. PW-13/E purporting to be aphotocopy of another ration card in his name with his residentialaddress of Ghaziabad where he admittedly never resided andhe submitted that document with the Ghaziabad TransportAuthority for obtaining permanent driving licence. In the learnerdriving licence also he had shown his residential addresseswhere he had never actually resided. All that he did was toconceal his real identity as militant having entered the Indianterritory with the object of spreading terror with the help of hisother associate militants whom unfortunately the police couldnot apprehend and some expired before they could be tried.”

183. In addition to these circumstances, there is anothercircumstance that message was intercepted by BSF videExhibit PW-162/A and proved by PW 162 Inspector J.S.Chauhan dated 26-12-2000 wherein there was specificreference to the accused. Still another circumstance would bethat the accused had no ostensible means of livelihood and yethe deposited Rs 29,50,000 in three accounts, namely, StandardChartered Grindlays Bank, Connaught Place (known as ANZGrindlays Bank) bearing Account No. 32263962 of M/s Nazir& Sons, Standard Chartered Grindlays Bank bearing AccountNo. 28552609 of Bilal Ahmad Kawa and Standard Chartered

Bank bearing Account No. 32181669 of Farooq Ahmed Qasidand also deposited some amounts in the account of RehmanaYusuf Farukhi and he had no explanation of these huge amounts,their source or their distribution. Lastly, the appellant gave afanciful and completely false explanation about his enteringin India and his being member of RAW and thereby, his havinginteracted with Nain Singh (PW 20).

184. We are in complete agreement with the findings regardingthe incriminating circumstances as recorded by the High Court.On the basis of the aforementioned circumstances, the HighCourt came to the conclusion that the appellant was responsiblefor the incident of shooting inside Lal Quila (Red Fort) on thenight of 22-12-2000, which resulted in the death of three soldiersof army. It has also been held by the High Court that this wasa result of well-planned conspiracy between the appellant andsome other militants including deceased Abu Shamal alias Faizalwho was killed in an encounter with the police at House No.G-73, Batla House, Muradi Road, Okhla, New Delhi. The HighCourt has also deduced that it was at the instance of theappellant that the police could reach that spot.

185. The High Court has further come to the conclusion that itwas in systematic manner that the appellant came to Indiaillegally and collected highly sophisticated arms and ammunitionmeant for mass destruction. The High Court further held thathe chose to select Red Fort for an assault along with his otherassociates, Red Fort being place of national importance forIndia. The High Court has also recorded finding that thechosen attack was on the army camp which was stationedthere to protect this monument of national importance. TheHigh Court has, therefore, deduced that it was an act of wagingwar against the Government of India. It is further held that theassociates, with whom the appellant had entered intoconspiracy, had attacked the army camp, which suggests thatthere was conspiracy to wage war against the Governmentof India, particularly, because in that attack, sophisticated armslike AK-47 and AK-56 rifles and hand grenades were used.

186. The High Court also took note that this aspect regardingwaging war was not even argued by the learned counsel

appearing for the defence. It is on this basis that the appellantwas held guilty for the offences punishable under Sections 120-B, 121-A, 121 IPC, Section 120-B read with Section 302 IPCand Sections 468/471/474 IPC and also the offences underSections 186/353/120-B IPC. He was also held guilty for theoffence under Section 14 of the Foreigners Act, since it wasproved that the appellant, foreigner, had entered the territoryof India without obtaining the necessary permissions andclearance. Similarly, the appellant was also held guilty for theoffences under the Arms Act as well as the ExplosiveSubstances Act on account of his being found with pistol andlive cartridges.

187. The law on the circumstantial evidence is, by now, settled.In Sharad Birdhichand Sarda v. State of Maharashtra (1984)4 SCC 116 this Court drew out the following test for relyingupon the circumstantial evidence: (SCC p. 185, para 153)

“153. … (1) the circumstances from which the conclusionof guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of conclusive nature andtendency,

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that inall human probability the act must have been done by theaccused.”

The principle of this judgment was thereafter followed in anumber of decisions, they being Tanviben PankajkumarDivetia v. State of Gujarat (1997) 7 SCC 156, State (NCT ofDelhi) v. Navjot Sandhu (2005) 11 SCC 600, VikramSingh v. State of Punjab (2010) 3 SCC 56 and Aftab AhmadAnasari v. State of Uttaranchal (2010) 2 SCC 583, etc.

188. It is to be noted that in the last mentioned decision of AftabAhmad Anasari v. State of Uttaranchal (2010) 2 SCC 583, theobservation made is to the following effect: (SCC p. 589, paras13-14)

“13. In cases where evidence is of circumstantial nature,the circumstances from which the conclusion of guilt is to bedrawn should, in the first instance, be fully established. Eachfact must be proved individually and only thereafter the courtshould consider the total cumulative effect of all the provedfacts, each one of which reinforces the conclusion of the guilt.If the combined effect of all the facts taken together isconclusive in establishing the guilt of the accused, the convictionwould be justified even though it may be that one or more ofthese facts, by itself/themselves, is/are not decisive. Thecircumstances proved should be such as to exclude everyhypothesis except the one sought to be proved. But this doesnot mean that before the prosecution case succeeds in acase of circumstantial evidence alone, it must exclude eachand every hypothesis suggested by the accused, howsoeverextravagant and fanciful it might be.

14. There must be chain of evidence so far complete as notto leave any reasonable ground for conclusion consistent withthe innocence of the accused and it must be such as to showthat within all human probability, the act must have been doneby the accused. Where the various links in chain are inthemselves complete, then false plea or false defence maybe called into aid only to lend assurance to the court.”

(emphasis supplied)

189. The Court further went on to hold that in applying this principle,distinction must be made between the facts called primary or basic,on the one hand, and the inference of facts to be drawn fromGthem, on the other. The Court further mentioned that: (AftabAhmad Anasari case (2010) 2 SCC 583, SCC p. 590, para 15)

“15. … In drawing these inferences or presumptions, the courtmust have regard to the common course of natural events, andto human conduct and their relations to the facts of the particularcase.”

MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)[UDAY UMESH LALIT, CJI]

To the similar effect are the observations madein Vikram Singh v. State of Punjab (2010) 3 SCC 56.

190. There can be no dispute that in case entirely dependent onthe circumstantial evidence, the responsibility of the prosecutionis more as compared to the case where the ocular testimony orthe direct evidence, as the case may be, is available. The Court,before relying on the circumstantial evidence and convicting theaccused thereby has to satisfy itself completely that there is noother inference consistent with the innocence of the accusedpossible nor is there any plausible explanation. The Court must,therefore, make up its mind about the inferences to be drawnfrom each proved circumstance and should also consider thecumulative effect thereof. In doing this, the Court has to satisfyits conscience that it is not proceeding on the imaginary inferencesor its prejudices and that there could be no other inference possibleexcepting the guilt on the part of the accused.191. We respectfully agree with the principles drawn in theabovementioned cases and hold that the prosecution wassuccessful in establishing the abovementioned circumstancesagainst the appellant, individually, as well as, cumulatively. Thereindeed cannot be universal test applicable commonly to all thesituations for reaching an inference that the accused is guilty onthe basis of the proved circumstances against him nor could therebe any quantitative test made applicable. At times, there may beonly few circumstances available to reach conclusion of theguilt on the part of the accused and at times, even if there arelarge numbers of circumstances proved, they may not be enoughto reach the conclusion of guilt on the part of the accused. It is thequality of each individual circumstance that is material and thatwould essentially depend upon the quality of evidence. Fancifulimagination in such cases has no place. Clear and irrefutable logicwould be an essential factor in arriving at the verdict of guilt onthe basis of the proved circumstances. In our opinion, the presentcase is such, as would pass all the tests so far devised by thisCourt in the realm of criminal jurisprudence.”

11. Some of the other features of the matter, as noted by thisCourt, were: -

ABC

“151. The prosecution proved 9 cash deposit slips of GrindlaysBank, the total amount being Rs 29,50,000. According to theprosecution, these were in appellant’s handwriting while thedepositors’ names have been mentioned as Aslam, Salim Khan,R.K. Traders and Rashid. We have already discussed about thefake residential address given by the appellant while opening theaccount with HDFC Bank. The details of this account were provedby Sanjeev Srivastava (PW 22). He proved Exhibits PW-22/B, Cand F. Exhibit PW-22/F is copy of the account statement ofRehmana, the wife of the accused which suggests that from 15-9-2000 onwards up to 14-12-2000, on various dates, amounts likeRs 10,000, Rs 40,000, Rs 50,000, Rs 1,50,000, Rs 2,00,000, etc.were deposited in cash. The total amount deposited was Rs5,53,500. There is absolutely no explanation by the appellant aboutthe source from which these amounts came.

xxx

153. The most important link with the HDFC account as also withthe deposit slips of Standard Chartered Grindlays Bank came tolight. Dr. M.A. Ali (PW 216), SSO, CFSL, CBI, New Delhi, onthe basis of his report, deposed that the account opening form ofHDFC Bank of the appellant, 9 deposit slips of Standard CharteredGrindlays Bank as also deposit slips of State Bank of India accountof Rehmana Yusuf Farukhi bore the handwriting of the appellant.This clinches the issue about the account opened in HDFC Bank.It is to be noted that there were three accounts in StandardChartered Grindlays Bank in the name of M/s Nazir & Sons,Farooq Ahmed Qasid (A-4) and Bilal Ahmad Kawa (A-18) whichhad Account Nos. 32263962, 28552609 and 32181669 respectively.The investigating agency collected the documents from StandardChartered Grindlays Bank including 9 cash deposit receipts asalso documents regarding the Account Nos. 32263962, 28552609and 32181669. 9 cash deposit slips are purportedly in the name ofAslam, Salim Khan, R.K. Traders and Rashid and all these havebeen proved to be in the handwriting of the appellant.

xxx

159. The argument of Ms Jaiswal, learned counsel appearing onbehalf of the appellant, that Nazir Ahmad Qasid (A-3) and FarooqAhmed Qasid (A-4) have already been acquitted, is of no

consequence. We may point out that there is absolutely noexplanation by the appellant either by way of cross-examinationof the witnesses or by way of his statement under Section 313CrPC as to where all these amounts had come from and why didhe deposit huge amounts in the three accounts mentioned above.Rs 29,50,000 is not an ordinary sum. Also, there is no evidencethat in his account in HDFC Bank, the appellant has Rs 6 lakhs.Further, very sizeable amount is shown to have been paid toRehmana Yusuf Farukhi in her account in State Bank of India.How did the appellant receive all these amounts and from where,are questions that remain unanswered in the absence of anyexplanation and more particularly because the appellant had noostensible means of livelihood. It would have to be held that theappellant was dealing with huge sums of money and he has noexplanation therefor. This is certainly to be viewed as anincriminating circumstance against the appellant. The silence onthis issue is only telling of his nefarious design.

160. It is obvious that the appellant was very important wheel inthe whole machinery which was working against the sovereigntyof this country. All this was supported by the fact that 9 depositslips, the bank forms for opening the accounts, the slip throughwhich the amount was deposited in the account of Rehmana YusufFarukhi, were all proved to be in the handwriting of the appellant.We have absolutely no reason to reject the evidence of thehandwriting expert. All this suggests that the appellant was weavinghis web of terrorist activities by taking recourse to falsehood oneafter the other including his residential address and also creatingfalse documents.”

12. In these review petitions, the challenge is raised principally onfour grounds: -

(a) The concerned Courts committed error in allowing call recordsto be admitted in evidence, in the absence of an appropriatecertificate under Section 65B of the Indian Evidence Act,1872[6].

(b) The disclosure statements of the review petitioner must betaken to be inadmissible on account of ill-treatment meted out

6 “the Evidence Act”, for short.

Ato him during the intervening night between his actual arrestand his formal arrest.

(c) The recovery of ammunition or the encounter of one AbuShamal, who was stated to be the accomplice of the petitioner,at Batla House, New Delhi, could not be associated with theBdisclosure statement of the review petitioner.

(d) Any possibility of retribution and rehabilitation of the reviewpetitioner, or that he would continue to be threat to the society,was not considered by the Courts.

13. On the other hand, it is submitted on behalf of the State, thatCthe scope of review petition even in matters arising out of award ofdeath sentence would be extremely limited. Reliance has been placedon the decisions of this Court in Vikram Singh alias Vicky Walia &Anr. vs. State of Punjab & Anr.[7] and specially the following paragraph:-

“23. In view of the above, it is clear that scope, ambit andDparameters of review jurisdiction are well defined. Normally in acriminal proceeding, review applications cannot be entertainedexcept on the ground of error apparent on the face of the record.Further, the power given to this Court under Article 137 is widerand in an appropriate case can be exercised to mitigate manifestEinjustice. By review application an applicant cannot be allowed toreargue the appeal on the grounds which were urged at the timeof the hearing of the criminal appeal. Even if the applicant succeedsin establishing that there may be another view possible on theconviction or sentence of the accused that is not sufficient groundfor review. This Court shall exercise its jurisdiction to review onlyFwhen glaring omission or patent mistake has crept in the earlierdecision due to judicial fallibility. There has to be an error apparenton the face of the record leading to miscarriage of justice toexercise the review jurisdiction under Article 137 read with Order40 Rule 1. There has to be material error manifest on the faceGof the record with results in the miscarriage of justice.”14. Reliance has further been placed on the decision of this Courtin Akshay Kumar Singh vs. State (NCT of Delhi)[8], where it wasobserved by this Court as under: -

7 (2017) 8 SCC 518H8 (2020) 3 SCC 431

“7. In this review petition, the petitioner prays for review of thejudgment dated 5-5-2017 [Mukesh v. State (NCT of Delhi), (2017)6 SCC 1]. In the review petition before us, the petitioner hasagain sought to assail the merits of the prosecution case and thefindings rendered thereon which cannot be permitted.

8. It is no longer res integra that scope of review is limited andreview cannot be entertained except in cases of error apparenton the face of the record. Article 137 of the Constitution of Indiaempowers the Supreme Court to review any judgment pronouncedor made, subject, of course, to the provisions of any law made byParliament or any rule made under Article 145 of the Constitutionof India.

9. Order 47 Rule 1 of the Supreme Court Rules, 2013 dealingwith review reads as follows:

“1. The Court may review its judgment or order, but noapplication for review will be entertained in civil proceedingexcept on the ground mentioned in Order 47 Rule 1 of theCode, and in criminal proceeding except on the ground of anerror apparent on the face of the record.”

As per the Supreme Court Rules, review in the criminalproceedings is permissible only on the ground of error apparenton the face of the record.

xxxxxxxxx

11. Review is not rehearing of the appeal over again. In areview petition, it is not for the Court to reappreciate the evidenceand reach different conclusion. The scope of review jurisdictionhas been elaborately considered by this Court in number of casesand the well-settled principles have been reiterated time andagain……”

15. The basic submission in the instant matter, as advanced byMr. Siddharth Agarwal, learned senior counsel on behalf of the reviewpetitioner is about the admissibility of electronic record being Call DataRecords (CDRs) (Exhibit PW-198/B1-B3), CDRs (Exhibit PW-198/E)and CDR (Exhibit PW-229/A). It is submitted that on the strength of thelaw declared by this Court in Anvar P.V. vs. P.K. Basheer & Ors.[9], as

9 (2014) 10 SCC 473

Aaffirmed by this Court in Arjun Panditrao Khotkar vs. KailashKushanrao Gorantyal & Ors.[10], certification under Section 65B of theEvidence Act would be pre-requisite for admissibility of an electronicrecord such as CDRs; that there being total non-compliance of thismandatory requirement, the afore-stated CDRs would be inadmissibleand must be eschewed from consideration at every juncture. TheBextension of the submission is that the entire fulcrum of the prosecutioncase rested on these CDRs and minus this evidence, there is hardlyanything which could prove the identity and involvement of the petitionerin the crime in question.

16. The submission advanced on behalf of the review petitionerCon the first ground as set out in the Note given by the learned SeniorCounsel is as under: -

“A. Admissibility of electronic records

(i) The central feature of the Prosecution case permeating theDentire Judgment under Review are circumstances and inferencesthat have been drawn on the strength of anlysis of electronicrecords (CDRs). Specifically, Circumstance H, I and J deal withthis issue.

(ii) Case involves analysis of Call Detail Records (“CDRs”) ofE[REDACTED] (“8510”) & [REDACTED] (“2154”). Prosecution Caseis that PW-229 MC Sharma conducted investigation pertaining toCDRs of these two numbers.

• PW-229 (@ 305-308 of Vol. II)

(iii) In respect of 8510, Prosecution produced CDR which isFEx.PW-198/ B1-B3 (@ 57-59 of Vol.III) whereas for 2154prosecution has produced CDRs Ex.PW-198/E (@67-75 ofVol.III) & Ex. PW-229/A (@ 48-52 of Vol.III). None of thesehave any certificate as required under Section 65B in IEA.

(iv) The number 8510 (sim card) was never recovered and theGhandset in which it was used from 26.10.2000 to 14.11.2000 (IMEIending with “0240”) was also not recovered. No CustomerApplication Form (CAF) or any other document that establishesownership or possession was produced. Not single person knownto the Petitioner was sked to provide his mobile number (despite

H10 (2020) 7 SCC 1

multiple being examined) [See: PW-20 (@ 12 of Vol.I), PW-31(@ 4 of Vol.I) PW-37 (@ 50 of Vol.I), PW-56 (@ 60 of Vol.I),PW-232 (@ 415 of Vol.II)]. Police never accessed the instrumentto examine call logs, message etc. (PW-148 @ 96 of Vol.I) andthe sole link to all inferences is the purported CDRs.

(v) CDRs provided by PW-198 Rajiv Pandit in February/ March2001 (Ex. PW-198/A @ 63 of Vol.III; Ex.PW-198/D @ 89 ofVol.III) were not and could not have been the basis for analysisby PW-229. The Court has acted upon oral testimony of PW-229as to the contents of CDRs of 8510, and Ex.PW-229/A (@ 48 ofVol.III) – unauthenticated secondary evidence of secondaryevidence – with respect to contents of CDRs of 2154. This is theteeth of S.65B IEA, S.63/65 IEA as well as S.59 IEA. Evenotherwise, the contents of the CDRs are different from the oraltestimony of PW-229 whereas the Supreme Court has proceededrelying upon the oral testimony [@ Para 97 (p.525) of Compilationof Judgments and Orders Pertaining to Petitioner]

•Tomaso Bruno & Anr. v. State of UP, (2015) 7 SCC 178(Paras 20-27)

(vi) Certification under S.65B IEA is pre-requisite to admissibilityof an electronic record such as CDRs. There is no compliancewith this mandatory requirement. As such, CDRs are inadmissibleand necessarily must be excluded from consideration.”

17. On the issue of admissibility of call records without there beingappropriate certificate under Section 65-B(4) of the Evidence Act abench of two Judges of this Court in State (NCT of Delhi) vs. NavjotSandhu alias Afsan Guru[11], had observed:-

“148. It is contended by Mr Shanti Bhushan, appearing for theaccused Shaukat that the call records relating to the cellular PhoneNo. [REDACTED] said to have been used by Shaukat have notbeen proved as per the requirements of law and their genuinenessis in doubt. The call records relating to the other mobile numbersrelated to Gilani and Afzal are also subjected to the same criticism.It is the contention of the learned counsel that in the absence of acertificate issued under sub-section (4) of Section 65-B of theEvidence Act with the particulars enumerated in clauses (a) to

(c), the information contained in the electronic record cannot beadduced in evidence and in any case in the absence of examinationof competent witness acquainted with the functioning of thecomputers during the relevant time and the manner in which theprintouts were taken, even secondary evidence under Section 63is not admissible.

149. Two witnesses were examined to prove the printouts of thecomputerised record furnished by the cellular service providers,namely, AirTel (Bharti Cellular Limited) and ESSAR Cellphone.The call details of Mobile No. [REDACTED] (which was seizedfrom Shaukat’s house) are contained in Exhibits 36/1 to 36/2. Thecovering letters signed by the Nodal Officer of Sterling CellularLimited are Exts. P-36/6 and P-36/7 bearing the dates 13th and18th December respectively. The call details of Mobile No.[REDACTED] attributed to Afzal are contained in Ext. P-36/3 andthe covering letter addressed to the Inspector (special cell) —PW 66 signed by the Nodal Officer is Ext. 36/5. The call detailsof [REDACTED] belonging to the subscriber S.A.R. Gilani arecontained in Ext. 35/8. The above two phones were obtained oncash-card basis. The covering letter pertaining thereto and certainother mobile numbers were signed by the Security Manager ofBharti Cellular Limited. The call details relating to anotherCellphone Number [REDACTED] pertaining to Mohammed is Ext.35/5. These documents i.e. Ext. 35 series were filed by PW 35who is the person that signed the covering letter dated 17thDecember bearing Ext. 35/1. PW 35 deposed that “all the calldetails are computerised sheets obtained from the computer”. Heclarified that:

“the switch which is maintained in the computer in respect ofeach telephone receives the signal of the telephone number,called or received and serves them to the server and it is theserver which keeps the record of the calls made or received.In case where the call is made and the receiver does not pickup the phone, the server which makes loop of the route wouldnot register it.”

As far as PW 36 is concerned, he identified the signatures of theGeneral Manager of his Company who signed Ext. P-36 series.He testified to the fact that the call details of the particular telephone

numbers were contained in the relevant exhibits produced by him.It is significant to note that no suggestion was put to these twowitnesses touching the authenticity of the call records or thepossible tampering with the entries, although the arguments haveproceeded on the lines that there could have been fabrication. Insupport of such argument, the duplication of entries in Exts. 36/2and 36/3 and that there was some discrepancy relating to the cellID and IMEI number of the handset at certain places was pointedout. The factum of presence of duplicate entries was elicited bythe counsel appearing for Afsan Guru from PW 36 when PW 36was in the witness box. The evidence of DW 10 technical expert,was only to the effect that it was possible to clone SIM bymeans of SIM programmer which to his knowledge, was notavailable in Delhi or elsewhere. His evidence was only of generalnature envisaging theoretical possibility and not with referenceto specific instances.

150. According to Section 63, secondary evidence means andincludes, among other things, “copies made from the original bymechanical processes which in themselves insure the accuracyof the copy, and copies compared with such copies”. Section 65enables secondary evidence of the contents of document to beadduced if the original is of such nature as not to be easilymovable. It is not in dispute that the information contained in thecall records is stored in huge servers which cannot be easily movedand produced in the court. That is what the High Court has alsoobserved at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by responsible officialof the service-providing company can be led in evidence througha witness who can identify the signatures of the certifying officeror otherwise speak of the facts based on his personal knowledge.Irrespective of the compliance with the requirements of Section65-B, which is provision dealing with admissibility of electronicrecords, there is no bar to adducing secondary evidence underthe other provisions of the Evidence Act, namely, Sections 63 and65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but thatdoes not mean that secondary evidence cannot be given even ifthe law permits such evidence to be given in the circumstancesmentioned in the relevant provisions, namely, Sections 63 and 65.

151. The learned Senior Counsel Mr Shanti Bhushan thencontended that the witnesses examined were not technical personsacquainted with the functioning of the computers, nor do theyhave personal knowledge of the details stored in the servers ofthe computers. We do not find substance in this argument. Boththe witnesses were responsible officials of the companiesconcerned who deposed to the fact that they were the printoutsobtained from the computer records. In fact the evidence of PW35 shows that he is fairly familiar with the computer system andits output. If there was some questioning vis-à-vis specific detailsor specific suggestion of fabrication of printouts, it would havebeen obligatory on the part of the prosecution to call technicalexpert directly in the know of things. The following observationsof the House of Lords in the case of R. v. Shephard 1993 AC380 are quite apposite : (All ER p. 231b-c)“The nature of the evidence to discharge the burden ofshowing that there has been no improper use of the computerand that it was operating properly will inevitably vary fromcase to case. The evidence must be tailored to suit the needsof the case. I suspect that it will very rarely be necessary tocall an expert and that in the vast majority of cases it will bepossible to discharge the burden by calling witness who isfamiliar with the operation of the computer in the sense ofknowing what the computer is required to do and who can saythat it is doing it properly.”

Such view was expressed even in the face of more stringentprovision in Section 69 of the Police and Criminal Act, 1984 in theUK casting positive obligation on the part of the prosecution tolead evidence in respect of proof of the computer record. Weagree with the submission of Mr Gopal Subramanium that theburden of prosecution under the Indian law cannot be said to behigher than what was laid down in R. v. Shephard 1993 AC 380.

152. Although necessary suggestions were not put forward to thewitnesses so as to discredit the correctness/genuineness of thecall records produced, we would prefer to examine the pointsmade out by the learned counsel for the accused independently.As already noted, one such contention was about the presence ofduplicate entries in Exts. 36/2 and 36/3. We feel that an innocuous

error in the computer recording is being magnified to discredit theentire document containing the details without any warrant. Asexplained by the learned counsel for the State, the computer, atthe first instance, instead of recording the IMEI number of themobile instrument, had recorded the IMEI and cell ID (location)of the person calling/called by the subscriber. The computerrectified this obvious error immediately and modified the recordto show the correct details viz. the IMEI and the cell ID of thesubscriber only. The document is self-explanatory of the error. Aperusal of both the call records with reference to the call at 11 :19 : 14 hours exchanged between [REDACTED] (Afzal’s) and[REDACTED] (Shaukat’s) shows that the said call was recordedtwice in the call records. The fact that the same call has beenrecorded twice in the call records of the calling and called partysimultaneously demonstrates beyond doubt that the correctnessor genuineness of the call is beyond doubt. Further, on acomparative perusal of the two call records, the details of the cellID and the IMEI of the two numbers are also recorded. Thus, asrightly pointed out by the counsel for the State Mr GopalSubramanium, the same call has been recorded two times, firstwith the cell ID and IMEI number of the calling number([REDACTED]). The same explanation holds good for the call at 11: 32 : 40 hours. Far from supporting the contention of the defence,the above facts, evident from the perusal of the call records, wouldclearly show that the system was working satisfactorily and itpromptly checked and rectified the mistake that occurred. Asalready noticed, it was not suggested nor could it be suggestedthat there was any manipulation or material deficiency in thecomputer on account of these two errors. Above all, the printoutspertaining to the call details exhibited by the prosecution are ofsuch regularity and continuity that it would be legitimate to draw apresumption that the system was functional and the output wasproduced by the computer in regular use, whether this fact wasspecifically deposed to by the witness or not. We are therefore ofthe view that the call records are admissible and reliable and rightlymade use of by the prosecution.”

18. bench of three Judges of this Court in Anvar P.V.[9] did notapprove the view taken in Navjot Sandhu[11] and observed –

ABC

“20. Proof of electronic record is special provision introducedby the IT Act amending various provisions under the EvidenceAct. The very caption of Section 65-A of the Evidence Act, readwith Sections 59 and 65-B is sufficient to hold that the specialprovisions on evidence relating to electronic record shall begoverned by the procedure prescribed under Section 65-B of theEvidence Act. That is complete code in itself. Being speciallaw, the general law under Sections 63 and 65 has to yield.

21. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC600 two-Judge Bench of this Court had an occasion to consideran issue on production of electronic record as evidence. Whileconsidering the printouts of the computerised records of the callspertaining to the cellphones, it was held at para 150 as follows:(SCC p. 714)

“150. According to Section 63, “secondary evidence” meansand includes, among other things, ‘copies made from the originalby mechanical processes which in themselves insure theaccuracy of the copy, and copies compared with such copies’.Section 65 enables secondary evidence of the contents of adocument to be adduced if the original is of such nature asnot to be easily movable. It is not in dispute that the informationcontained in the call records is stored in huge servers whichcannot be easily moved and produced in the court. That iswhat the High Court has also observed [Ed.: Reference isto State v. Mohd. Afzal, (2003) 71 DRJ 178] at para 276.Hence, printouts taken from the computers/servers bymechanical process and certified by responsible official ofthe service-providing company can be led in evidence througha witness who can identify the signatures of the certifyingofficer or otherwise speak of the facts based on his personalknowledge. Irrespective of the compliance with therequirements of Section 65-B, which is provision dealing withadmissibility of electronic records, there is no bar to adducingsecondary evidence under the other provisions of the EvidenceAct, namely, Sections 63 and 65. It may be that the certificatecontaining the details in sub-section (4) of Section 65-B is notfiled in the instant case, but that does not mean that secondaryevidence cannot be given even if the law permits such evidence

to be given in the circumstances mentioned in the relevantprovisions, namely, Sections 63 and 65.”

It may be seen that it was case where responsible official hadduly certified the document at the time of production itself. Thesignatures in the certificate were also identified. That is apparentlyin compliance with the procedure prescribed under Section 65-Bof the Evidence Act. However, it was held that irrespective of thecompliance with the requirements of Section 65-B, which is aspecial provision dealing with admissibility of the electronic record,there is no bar in adducing secondary evidence, under Sections63 and 65, of an electronic record.22. The evidence relating to electronic record, as notedhereinbefore, being special provision, the general law onsecondary evidence under Section 63 read with Section 65 of theEvidence Act shall yield to the same. Generalia specialibus nonderogant, special law will always prevail over the general law. Itappears, the court omitted to take note of Sections 59 and 65-Adealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence byway of electronic record; the same is wholly governed by Sections65-A and 65-B. To that extent, the statement of law on admissibilityof secondary evidence pertaining to electronic record, as statedby this Court in State (NCT of Delhi) v. Navjot Sandhu, (2005)11 SCC 600, does not lay down the correct legal position. It requiresto be overruled and we do so. An electronic record by way ofsecondary evidence shall not be admitted in evidence unless therequirements under Section 65-B are satisfied. Thus, in the caseof CD, VCD, chip, etc., the same shall be accompanied by thecertificate in terms of Section 65-B obtained at the time of takingthe document, without which, the secondary evidence pertainingto that electronic record, is inadmissible.”

19. In Tomaso Bruno & Anr. v. State of Uttar Pradesh[12], anotherbench of three Judges however struck slightly different chord andmade following observations:

“24. With the advancement of information technology, scientifictemper in the individual and at the institutional level is to pervade

Athe methods of investigation. With the increasing impact oftechnology in everyday life and as result, the production ofelectronic evidence in cases has become relevant to establish theguilt of the accused or the liability of the defendant. Electronicdocuments stricto sensu are admitted as material evidence. Withthe amendment to the Evidence Act in 2000, Sections 65-A andB65-B were introduced into Chapter V relating to documentaryevidence. Section 65-A provides that contents of electronic recordsmay be admitted as evidence if the criteria provided in Section65-B is complied with. The computer generated electronic recordsin evidence are admissible at trial if proved in the mannerCspecified by Section 65-B of the Evidence Act. Sub-section (1) ofSection 65-B makes admissible as document, paper printout ofelectronic records stored in optical or magnetic media producedby computer, subject to the fulfilment of the conditions specifiedin sub-section (2) of Section 65-B. Secondary evidence of contentsof document can also be led under Section 65 of the EvidenceDAct. PW 13 stated that he saw the full video recording of thefateful night in the CCTV camera, but he has not recorded thesame in the case diary as nothing substantial to be adduced asevidence was present in it.”

20. In Sonu alias Amar v. State of Haryana[13], bench of twoEJudges ruled that an objection that CDRs be not taken into considerationpertained to the mode or method of proof and if not taken at the trial,cannot be permitted at the appellate stage. It was stated: -

“32. It is nobody’s case that CDRs which are form of electronicrecord are not inherently admissible in evidence. The objection isFthat they were marked before the trial court without certificateas required by Section 65-B(4). It is clear from the judgmentsreferred to supra that an objection relating to the mode or methodof proof has to be raised at the time of marking of the documentas an exhibit and not later. The crucial test, as affirmed by thisGCourt, is whether the defect could have been cured at the stageof marking the document. Applying this test to the present case, ifan objection was taken to the CDRs being marked without acertificate, the Court could have given the prosecution anopportunity to rectify the deficiency. It is also clear from the abovejudgments that objections regarding admissibility of documentswhich are per se inadmissible can be taken even at the appellatestage. Admissibility of document which is inherently inadmissibleis an issue which can be taken up at the appellate stage becauseit is fundamental issue. The mode or method of proof isprocedural and objections, if not taken at the trial, cannot bepermitted at the appellate stage. If the objections to the mode ofproof are permitted to be taken at the appellate stage by party,the other side does not have an opportunity of rectifying thedeficiencies. The learned Senior Counsel for the State referred tostatements under Section 161 CrPC, 1973 as an example ofdocuments falling under the said category of inherently inadmissibleevidence. CDRs do not fall in the said category of documents.We are satisfied that an objection that CDRs are unreliable due toviolation of the procedure prescribed in Section 65-B(4) cannotbe permitted to be raised at this stage as the objection relates tothe mode or method of proof.”

21. Later, another bench of two Judges of this Court in ShafiMohammed v. State of Himachal Pradesh[14] observed as under:

“20. An apprehension was expressed on the question ofapplicability of conditions under Section 65-B(4) of the EvidenceAct to the effect that if statement was given in evidence, acertificate was required in terms of the said provision from personoccupying responsible position in relation to operation of therelevant device or the management of relevant activities. It wassubmitted that if the electronic evidence was relevant and producedby person who was not in custody of the device from which theelectronic document was generated, requirement of such certificatecould not be mandatory. It was submitted that Section 65-B of theEvidence Act was procedural provision to prove relevantadmissible evidence and was intended to supplement the law onthe point by declaring that any information in an electronic record,covered by the said provision, was to be deemed to be documentand admissible in any proceedings without further proof of theoriginal. This provision could not be read in derogation of theexisting law on admissibility of electronic evidence.

A21. We have been taken through certain decisions which may bereferred to. In Ram Singh v. Ram Singh, 1985 Supp SCC 611, athree-Judge Bench considered the said issue. English judgmentsin R. v. Maqsud Ali, (1966) 1 QB 688) and R. v. Robson, (1972)1 WLR 651 and American Law as noted in AmericanJurisprudence 2d (Vol. 29) p. 494, were cited with approval toBthe effect that it will be wrong to deny to the law of evidenceadvantages to be gained by new techniques and new devices,provided the accuracy of the recording can be proved. Suchevidence should always be regarded with some caution andassessed in the light of all the circumstances of each case.CElectronic evidence was held to be admissible subject to safeguardsadopted by the Court about the authenticity of the same. In thecase of tape-recording, it was observed that voice of the speakermust be duly identified, accuracy of the statement was requiredto be proved by the maker of the record, possibility of tamperingwas required to be ruled out. Reliability of the piece of evidenceDis certainly matter to be determined in the facts andcircumstances of fact situation. However, threshold admissibilityof an electronic evidence cannot be ruled out on any technicalityif the same was relevant.”

22. The last decision on the point is three Judge bench decisionEof this Court in Arjun Panditrao Khotkar[10] which was rendered on areference to larger bench because of the observations in ShafiMohammad[14]. The bench concluded in Arjun Panditrao[10] as under: -

“73. The reference is thus answered by stating that:

F73.1. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, as clarifiedby us hereinabove, is the law declared by this Court on Section65-B of the Evidence Act. The judgment in Tomaso Bruno v. Stateof U.P., (2015) 7 SCC 178, being per incuriam, does not lay downthe law correctly. Also, the judgment in Shafhi Mohammad v.State of H.P., (2018) 2 SCC 801 and the judgment dated 3-4-G2018 reported as Shafhi Mohd. v. State of H.P., (2018) 5 SCC311s, do not lay down the law correctly and are therefore overruled.

73.2. The clarification referred to above is that the requiredcertificate under Section 65-B(4) is unnecessary if the originaldocument itself is produced. This can be done by the owner of

laptop computer, computer tablet or even mobile phone, bystepping into the witness box and proving that the device concerned,on which the original information is first stored, is owned and/oroperated by him. In cases where the “computer” happens to be apart of “computer system” or “computer network” and itbecomes impossible to physically bring such system or networkto the court, then the only means of providing information containedin such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4).The last sentence in para 24 in Anvar P.V. v. P.K. Basheer, (2014)10 SCC 473 which reads as “… if an electronic record as suchis used as primary evidence under Section 62 of the EvidenceAct …” is thus clarified; it is to be read without the words “underSection 62 of the Evidence Act,…”. With this clarification, thelaw stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10SCC 473 does not need to be revisited.

73.3. The general directions issued in para 64 (supra) shall hereafterbe followed by courts that deal with electronic evidence, to ensuretheir preservation, and production of certificate at the appropriatestage. These directions shall apply in all proceedings, till rules anddirections under Section 67-C of the Information Technology Actand data retention conditions are formulated for compliance bytelecom and internet service providers.

73.4. Appropriate rules and directions should be framed in exerciseof the Information Technology Act, by exercising powers such asin Section 67-C, and also framing suitable rules for the retentionof data involved in trial of offences, their segregation, rules ofchain of custody, stamping and record maintenance, for the entireduration of trials and appeals, and also in regard to preservationof the metadata to avoid corruption. Likewise, appropriate rulesfor preservation, retrieval and production of electronic record,should be framed as indicated earlier, after considering the reportof the Committee constituted by the Chief Justices’ Conferencein April 2016.”

It must now be taken to have been settled that the decision of thisCourt in Anvar P.V.[9] as clarified in Arjun Panditrao[10] is the law declaredon Section 65B of the Evidence Act.

A23. Navjot Sandhu[11] was decided on 4.8.2005 i.e., before thejudgment was rendered by the Trial Court in the instant matter. Thesubsequent judgments of the High Court and this Court were passed on13.9.2007 and 10.8.2011 respectively affirming the award of deathsentence. These two judgments were delivered prior to the decision ofthis Court in Anvar P.V.[9] which was given on 18.9.2014. The judgmentsBby the trial Court, High Court and this Court were thus well before thedecision in Anvar P.V.[9]and were essentially in the backdrop of law laiddown in Navjot Sandhu[11]. If we go by the principle accepted inparagraph 32 of the decision in Sonu alias Amar[13], the matter maystand on completely different footing. It is for this reason that relianceChas been placed on certain decisions of this Court to submit that thematter need not be reopened on issues which were dealt with inaccordance with the law then prevailing. However, since the instantmatter pertains to award of death sentence, this review petition must beconsidered in light of the decisions made by this Court in Anvar P.V.[9]and Arjun Panditrao[10].D24. Consequently, we must eschew, for the present purposes, theelectronic evidence in the form of CDRs which was without anyappropriate certificate under Section 65-B(4) of the Evidence Act.

25. If we consider the circumstances which were culled out byEthis Court in Paragraph 182 of the judgment under review, circumstancesmentioned at Serial Nos. ‘h’ and ‘j’ become extremely weak as thetracing of calls received by PWs 39 and 41 to Mobile PhoneNo.[REDACTED] was possible only through CDRs. These circumstancesmust not, therefore, be taken into account.

F26. However, the other circumstances stated in said paragraph182 as well as in subsequent paragraphs remain completely unaffected.As was stated by this Court in paragraphs 151, 153, 159, 169 and finallysummed up in paragraphs 183 and 184, the findings on the issue of thereceipt and disbursal of money and the fact that the police could reachthe spot referred to in Paragraph 184, at the instance of the reviewGpetitioner are very relevant and crucial circumstances. One of theimportant circumstances is also the feature referred to in circumstance‘o’ in Paragraph 182 as stated above. In conclusion, it must therefore beobserved that even after eschewing circumstances ‘h’ and ‘j’ whichwere directly attributable to the CDRs relied upon by the prosecution,

the other circumstances on record do clearly spell out and prove beyondany doubt the involvement of the review petitioner in the crime in question.

27. We now turn to grounds (b), (c) and (d) raised on behalf ofthe review petitioner as stated in para 12 supra. Grounds ‘b’ and ‘c’ arepurely factual in nature. The disclosure statement, as matter of fact,was held to have been proved by the Courts below and this Court. In ourreview jurisdiction, it will not be possible to enter into questions regardingadmissibility of such disclosure statement on issues of fact. The disclosurestatement led the police to the hide out at G-73, Batla House, New Delhiand when the police team arrived with the review petitioner, there wasfiring upon the police team as stated in circumstance ‘g’ in paragraph182. After the person concerned named Abu Shamal alias Faisal died inthe encounter, certain fire arms and ammunition were recovered. Thesubmission that such recovery of ammunition or the encounter of AbuShamal could not be associated with the disclosure statement of thereview petitioner is not quite correct. We therefore reject both the groundstaken in ‘b’ and ‘c’ as referred to in Para 12 supra.

28. We now turn to the last ground regarding possibility ofretribution and rehabilitation of the review petitioner. On this issue, theresponse of the State in its Written Submissions is as follows: -

“3. The petitioner, admittedly Pakistani national, has beenconvicted inter-alia under Section 121,302,120B,121A,181 and353 of the Indian Penal Code, Section 25 of the Arms Act, Section4 of the Explosive Substances Act, Section 14 of the ForeignersAct, for waging war against the Government of India andcommitting murder in pursuance thereof. This Hon’ble Court hastaken the view that the cases of such nature, involving acts ofterror which challenge the unity, integrity and sovereignty of Indiacan only be adequately compensated by awarding the deathsentence. Reference in this regard is drawn to the judgment ofthis Hon’ble Court in State of NCT of Delhi v. Navjot Sandhu(2005) 11 SCC 600 (The Parliament Attack Case), where itwas held:

252. In the instant case, there can be no doubt that themost appropriate punishment is death sentence. That iswhat has been awarded by the trial court and the HighCourt. The present case, which has no parallel in the history

of the Indian Republic, presents us in crystal-clear terms,a spectacle of the rarest of rare cases. The very idea ofattacking and overpowering sovereign democraticinstitution by using powerful arms and explosives andimperilling the safety of multitude of peoples’representatives, constitutional functionaries and officialsof the Government of India and engaging in combat withthe security forces is terrorist act of the gravest severity.It is classic example of rarest of rare cases.

253. The gravity of the crime conceived by the conspiratorswith the potential of causing enormous casualties anddislocating the functioning of the Government as well asdisrupting the normal life of the people of India issomething which cannot be described in words. Theincident, which resulted in heavy casualties, had shakenthe entire nation, and the collective conscience of thesociety will only be satisfied if capital punishment isawarded to the offender. The challenge to the unity,integrity and sovereignty of India by these acts of terroristsand conspirators, can only be compensated by givingmaximum punishment to the person who is proved to be theconspirator in this treacherous act. The appellant, who isa surrendered militant and who was bent upon repeatingthe acts of treason against the nation, is menace to thesociety and his life should become extinct. Accordingly,we uphold the death sentence.

(emphasis supplied)

4. Similarly in Yakub Abdul Razak Memon v. State ofMaharashtra, (2013) 13 SCC 1, this Hon’ble Court while dealingwith the award of the death sentence to persons convicted inter-alia under various IPC offences including Waging of War againstthe Government of India and the Prevention of Terrorism Act,discussed the wide ambit of the term “terrorism” and held thatthe offence of terrorism itself was an aggravating circumstance:

“Terrorism”

809. The term “terrorism” is concept that is commonlyand widely used in everyday parlance and is derived from

the Latin word “terror” which means the state of intensefear and submission to it. There is no particular form ofterror, hence, anything intended to create terror in theminds of general public in order to endanger the lives ofthe members and damage to public property may be termedas terrorist act and manifestation of terrorism. Black’sLaw Dictionary defines terrorism as:

“Terrorism.— The use or threat of violence to intimidateor cause panic, esp. as means of affecting politicalconduct.” (8[th] Edn., p. 1512.)

810. Terrorism is global phenomenon in today’s worldand India is one of the worst victims of terrorist acts.Terrorism has long history of being used to achievepolitical, religious and ideological objectives. Acts ofterrorism can range from threats to actual assassinations,kidnappings, airline hijackings bomb scares, car bombs,building explosions mailing of dangerous materials,computer based attacks and the use of chemical,biological, and nuclear weapons-weapons of massdestruction (WMD).

883.4. Crime of terrorism is in itself an aggravatingcircumstance as it carries “special stigmatisation due tothe deliberate form of inhuman treatment it represents andthe severity of the pain and suffering inflicted”

(emphasis supplied)

5. In Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012)9 SCC 1, this Hon’ble Court while convicting the Appellant thereinfor the terrorist attack of 26/11 in Mumbai, stated that facts of thecase, the cross-border conspiracy, and the intention to strike fearinto the heart of the victims, that the death sentence was warranted.While the court recognised that death should be the exception,this Hon’ble Court noted that as long as the death penalty remainedon the statute books for crimes such as waging of war, therewould be certain cases where its imposition would be justified. Inthis regard, attention is respectfully drawn to the followingparagraphs:

573. In short, this is case of terrorist attack from acrossthe border. It has magnitude of unprecedented enormityon all scales. The conspiracy behind the attack was asdeep and large as it was vicious. The preparation andtraining for the execution was as thorough as the executionwas ruthless. In terms of loss of life and property, and moreimportantly in its traumatising effect, this case stands alone,or it is at least the very rarest of rare cases to come beforethis Court since the birth of the Republic. Therefore, itshould also attract the rarest of rare punishment.

577. Putting the matter once again quite simply, in thiscountry death as penalty has been held to beconstitutionally valid, though it is indeed to be awarded inthe “rarest of rare cases when the alternative option (oflife sentence) is unquestionably foreclosed”. Now, as longas the death penalty remains on the statute book aspunishment for certain offences, including “waging war”and murder, it logically follows that there must be somecases, howsoever rare or one in million, that would callfor inflicting that penalty. That being the position we failto see what case would attract the death penalty, if not thecase of the appellant. To hold back the death penalty inthis case would amount to obdurately declaring that thisCourt rejects death as lawful penalty even though it is onthe statute book and held valid by the ConstitutionalBenches of this Court.

34. No ground for review of the Death Sentence is made out asthe three tests stand fully satisfied. All three Courts have recordedelaborate reasons for why the present case was one whichwarranted the death sentence, and have considered the crime,the criminal and whether the case could be said to be the rarest ofthe rare.

1. This Hon’ble Court has recorded elaborate findings in thejudgment presently under review on sentencing as to why thepresent case satisfies all three tests including the “rarest of therare” test. Firstly, this Hon’ble Court found that the nature of

the crime, being an attack on the Red Fort, was nothing shortof an attack on Mother India itself, secondly, that so far as thenature of the criminal was concerned, no mitigatingcircumstances of any kind had been brought on record andthirdly, that the nature of the crime, the fact that it was plannedpre-meditated attack on symbol of the seat of power of theGovernment of India warranted nothing short of the highestpunishment. The Court held:

“213. This was, in our opinion, unique case whereRed Fort, place of paramount importance for everyIndian heart was attacked where three Indian soldierslost their lives. This is place with glorious history, aplace of great honour for every Indian, place withwhich every Indian is attached emotionally, and placefrom where our first Prime Minister delivered his speechon 15-8-1947, the day when India broke the shacklesof foreign rule and became free country. It has sincethen been tradition that every Hon’ble Prime Ministerof this country delivers an address to the nation onevery 15th August to commemorate that great event. Thisfort was visualised and constructed by the MughalEmperor Shahjahan who is known as “Shahjahan thebuilder”. It took nine years for its completion. It washere that Shahjahan ascended the throne on 18-4-1648amidst recitation of sacred aayates of Holy Quran andmantras from Hindu scriptures. The great historicalmonument thereafter saw the rule of number of MughalEmperors including Aurangzeb. It also saw its mostunfortunate capture by Nadir Shah. It was in 1837 thatthe last Mughal Emperor Bahadur Shah Zafar II tookover the throne.

214. It must be remembered that it was during the empireof Bahadur Shah Zafar II that the First War ofIndependence was fought. Red Fort became the ultimategoal during that War of Independence which broke outin the month of May 1857. The Fort breathed free airfor brief period. But ultimately in the month ofSeptember 1857, it was captured by the British. Red

Fort is not just one of the several magnificentmonuments that were built by the Mughal emperorsduring their reign for nearly three centuries. It is notjust another place which people from within and outsidethe country visit to have glimpse of the massive wallson which the Fort stands or the exquisite workmanshipit displays. It is not simply tourist destination in thecapital that draws thousands every year to peep andrevel into the glory of the times bygone. Its importancelies in the fact that it has for centuries symbolised theseat of power in this country. It has symbolised thesupremacy of the Mughal and the British empires justas it symbolises after Independence the sovereignty ofthe world’s largest democratic republic. It is nationalsymbol that evokes the feelings of nationalism amongstthe countrymen and reminds them of the sacrifices thatthe freedom fighters made for the liberation of thiscountry from foreign rule.

215. No wonder even after the fall of the Fort to theBritish forces in the First War of Independence in 1857and the shifting of the seat of power from Red Fort toCalcutta and later to New Delhi, Pt. Jawahar Lal Nehruafter his historic “Tryst with Destiny” speech unfurledthe tricolour from the ramparts of Red Fort on 15-8-1947. That singular event symbolised the end of theBritish rule in this country and the birth of anindependent India. An event that is relived and re-actedevery succeeding year since 1917, when everyincumbent Prime Minister addresses the nation from atopthis great and historic Fort reminding the countrymenof the importance of freedom, the need for itspreservation and the values of constitutional democracythat guarantees the freedoms so very fundamental tothe preservation of the unity and integrity of this country.216. An attack on symbol that is so deeply entrenchedin the national psyche was, therefore, nothing but anattack on the very essence of the hard-earned freedomand liberty so very dear to the people of this country.

An attack on symbol like Red Fort was an assault onthe nation’s will and resolve to preserve its integrity andsovereignty at all costs. It was challenge not only tothe army battalions stationed inside the monument butthe entire nation. It was challenge to the very fabricof secular constitutional democracy this country hasadopted and everything that is good and dear to ourcountrymen. It was blatant, brazenfaced andaudacious act aimed to overawe the Government ofIndia. It was meant to show that the enemy could withimpunity reach and destroy the very vitals of aninstitution so dear to our fellow countrymen for what itsignified for them. It is not for no reason that whosoevercomes to Delhi has yearning to visit Red Fort. It is forthese reasons that this place has become place ofhonour for Indians.

217. No one can ever forget the glorious moments whenthe Indians irrespective of their religions fought theirFirst War of Independence and shed their blood. It was,therefore, but natural for the foreigner enemies to planan attack on the army specially kept to guard this greatmonument. This was not only an attack on Red Fort orthe army stationed therein, this was an arrogant assaulton the self-respect of this great nation. It was wellthought out insult offered to question the sovereigntyof this great nation by foreign nationals. Therefore, thiscase becomes rarest of the rare case. This was nothingbut an undeclared war by some foreign mercenaries likethe present appellant and his other partner in conspiracyAbu Shamal and some others who either got killed orescaped. In conspiring to bring about such kind ofattack and then carrying out their nefarious activitiesin systematic manner to make an attack possible wasnothing but an attempt to question the sovereignty ofIndia. Therefore, even without any reference to anyother case law, we hold this case to be the rarest of therare case.

223. …..During the whole debate the learned defencecounsel did not attempt to bring any mitigatingcircumstance. In fact, this is unique case where thereis one most aggravating circumstance that it was directattack on the unity, integrity and sovereignty of Indiaby foreigners. Thus, it was an attack on Mother India.This is apart from the fact that as many as three personshad lost their lives. The conspirators had no place inIndia. The appellant was foreign national and hadentered India without any authorisation or evenjustification. This is apart from the fact that theappellant built up conspiracy by practising deceit andcommitting various other offences in furtherance of theconspiracy to wage war against India as also to commitmurders by launching an unprovoked attack on thesoldiers of the Indian Army. We, therefore, have nodoubts that death sentence was the only sentence in thepeculiar circumstance of this case.”

29. The decisions referred to in the Written Submissions showthat when there is challenge to the unity, integrity and sovereignty ofIndia by acts of terrorism, such acts are taken as the most aggravatingcircumstances. It is well accepted that the cumulative effect of theEaggravating factors and the mitigating circumstances must be taken intoaccount before the death sentence is awarded. In Vasanta SampatDupare vs. State of Maharashtra[15], while dealing with case, wheredeath sentence was awarded in crime relating to offences punishableunder Sections 302, 363, 367, 376(2)(f) and 201 of the IPC, this CourtFhad observed that the aggravating circumstances had clearly outweighedthe mitigating circumstances. It was stated: -

“20. It is thus well settled, “the court would consider the cumulativeeffect of both the aspects (namely, aggravating factors as well asmitigating circumstances) and it may not be very appropriate forthe Court to decide the most significant aspect of sentencing policywith reference to one of the classes completely ignoring otherclasses under other heads and it is the primary duty of the Courtto balance the two”. Further, “it is always preferred not to fetterthe judicial discretion by attempting to make excessive enumeration,

in one way or another; and that both aspects, namely, aggravatingand mitigating circumstances have to be given their respectiveweightage and that the Court has to strike the balance betweenthe two and see towards which side the scale/balance of justicetilts”. With these principles in mind, we now consider the presentreview petition.

21. The material placed on record shows that after the judgmentVasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC253 under review, the petitioner has completed BachelorsPreparatory Programme offered by Indira Gandhi National OpenUniversity enabling him to prepare for Bachelor level study andthat he has also completed the Gandhi Vichar Pariksha and hadparticipated in drawing competition organised sometime in January2016. It is asserted that the jail record of the petitioner is withoutany blemish. The matter is not contested as regards Conditions(1), (2), (5), (6) and (7) as stated in para 206 of the decisionin Bachan Singh v. State of Punjab, (1980) 2 SCC 684, but whatis now being projected is that there is possibility of the accusedbeing reformed and rehabilitated. Though these attempts on partof the petitioner are after the judgment Vasanta SampatDupare v. State of Maharashtra, (2015) 1 SCC 253 under review,we have considered the material in that behalf to see if thosecircumstances warrant different view. We have given anxiousconsideration to the material on record but find that the aggravatingcircumstances, namely, the extreme depravity and the barbaricmanner in which the crime was committed and the fact that thevictim was helpless girl of four years clearly outweigh themitigating circumstances now brought on record. Having takenan overall view of the matter, in our considered view, no case ismade out to take different view in the matter. We, therefore,affirm the view taken in the judgment Vasanta SampatDupare v. State of Maharashtra, (2015) 1 SCC 253 under reviewand dismiss the present review petitions.”

30. Coming back to the instant case, there is nothing on recordwhich can be taken to be mitigating circumstance in favour of thereview petitioner. The suggestion that there is possibility of retributionand rehabilitation, is not made out from and supported by any materialon record. On the other hand, the aggravating circumstances evident

[2022] 7 S.C.R.

Afrom the record and specially the fact that there was direct attack onthe unity, integrity and sovereignty of India, completely outweigh thefactors which may even remotely be brought into consideration asmitigating circumstances on record. The submission so advanced underground (d) does not merit any acceptance and is, therefore, rejected.

B31. Consequently, we do not find any merit in the instant reviewpetitions, which are accordingly dismissed.

Bibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Review petitions dismissed.