Telangana High Court
V Additional District And Sessions … vs Asadullah Akhtar , Haddi , Tabrez on 8 April, 2025
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL No.1299 OF 2016
ALONG WITH REFERRED TRIAL No.1 OF 2016
COMMON JUDGMENT:
(Per Hon’ble Sri Justice K. Lakshman)
Heard Mr. R. Mahadevan, learned counsel for appellant Nos.2
and 5 – accused Nos.2 and 5, Mr. Appam Chandra Sekhar, learned
counsel for appellant Nos.3 and 4 – accused Nos.3 and 4, Mr. Pathan
T.W., learned counsel representing Mr. Mohammed Shujaullah
Khan, learned counsel for appellant No.6 – accused No.6 and Mr. P.
Vishnuvardhan Reddy, learned Special Public Prosecutor for NIA
appearing on behalf of the respondent – State.
2. Vide judgment dated 13.12.2016 in Sessions Case No.01 of
2015, learned Special Court for the trial of Scheduled Offences
Investigated by National Investigation Agency – cum – V Additional
Metropolitan and Sessions Judge, Rangareddy District at L.B. Nagar,
Telangana State (hereinafter referred to as ‘trial Court’), found
accused Nos.2 to 6 herein guilty of the following offenses:
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016S.N. Accused Offences with which the accused were found guilty
120-B r/w 302, 121, 121-A, 122, 302 r/w 34 (2 counts), 307 r/w 34
(2 counts), 316 r/w 34, 436 r/w 34, 201, 466 r/w 109, 474 r/w 109
of IPC, Sec.3 of Explosive Substances Act (for short ES Act),
Accused Sec.5 of ES Act, Sec.3 of ES Act r/w 34 IPC, Sec.14 of Foreigners
01.
No.2
Act r/w 109, Sec.4 of the Public Property Damages Act (for short
‘PPD Act’) r/w 34, 16 of the Unlawful Activities (Prevention) Act
(for short ‘UAA’) r/w 34, 17 of UAA, 18 of UAA and 19 of UAA
r/w 109.
120-B r/w 302, 121, 121-A, 122, 302, 302 r/w 34, 307, 307 r/w 34,
316 r/w 34, 436, 201, 466 r/w 109, 474 r/w 109, Sec.3 of ES Act,
Accused Sec.5 of ES Act, Sec.3 of ES Act, Sec.14 of Foreigners Act, Sec.4
02. No.3
of PPD Act, 16 of UAA, 17 of UAA, 18 of UAA, 19 of UAA r/w
109.
120-B r/w 302, 121, 121-A, 122, 302, 302 r/w 34, 307, 307 r/w 34,
316, 436, 201, 466 r/w 109, 474 r/w 109, Sec.3 of ES Act, Sec.5 of
03. Accused ES Act, Sec.3 of ES Act, Sec.14 of Foreigners Act r/w 109, Sec.4
No.4 of PPD Act r/w 34, 16 of UAA, 17 of UAA, 18 of UAA, 19 of
UAA r/w 109.
120-B r/w 302, 121, 121-A, 122, 302 r/w 109 (2 counts), 307 r/w
109 (2 counts), 316 r/w 109, 436 r/w 109, 201 r/w 109, 466 r/w
Accused 109, 474 r/w 109, Sec.5 of ES Act r/w 109, Sec.3 of ES Act r/w
04.
No.5
109, Sec.14 of Foreigners Act r/w 109, Sec.4 of PPD Act r/w 109,
16 of UAA r/w 109, 17 of UAA, 18 of UAA , 19 of UAA, 19 of
UAA r/w 109.
120-B r/w 302, 121, 121-A, 122 r/w 109, 302 r/w 109 (2 counts),
307 r/w 109 (2 counts), 316 r/w 109, 436 r/w 109, 201 r/w 109,
Accused
05. 466, 474, Sec.5 of ES Act r/w 109, Sec.3 of ES Act r/w 109, Sec.14
No.6
of Foreigners Act r/w 109, Sec.4 of PPD Act r/w 109, 16 of UAA
r/w 109, 17 of UAA, 18 of UAA, 19 of UAA r/w 109.
3. Accordingly, accused No.2 to 6 were convicted under
section 235 (2) of Cr.P.C. for above said offences.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
4. However, accused Nos.2 to 6 were found not guilty for the
offences under Sections – 10, 20, 38 (2) and 39 (2) of the UAP Act,
and accordingly theywere acquitted under Section – 235 (1) of
5. Learned trial Court imposed the death penalty, life
imprisonment and other punishments for the aforesaid offences, the
details of which are as under:
Accused No. Offences Punishment
120B r/w 302 IPC Death Penalty with a Fine of Rs.10,000/- In Default to
undergo Simple Imprisonment (for short ‘IDSI) for one
month
121 -do-
121A Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
122 -do-
302 r/w 34 Death penalty with a Fine of Rs.20,000/- (for each count
(two counts) Rs.10,000/-), IDSI for one month for each count.
307 r/w 34 Life Imprisonment with a Fine of Rs.20,000/- (for each
(two counts) count Rs.10,000/-), IDSI for one month for each count
316 r/w 34 Rigorous Imprisonment (RI) for 10 Years with aFine of
Rs.10,000/-, IDSI for one month
436 r/w 34 Life Imprisonment with a Fineof Rs.10,000/-, IDSI for
Accused No.2 one month
201 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
466 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
474 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
Sec.3 (b) of ES Act Death Penalty with a Fine of Rs.10,000/-, IDSI for one
month
Sec.5 of ES Act Life Imprisonment with a Fine of Rs.20,000/- (for each
(two counts) count Rs.10,000/-), IDSI for one month for each count
Sec.3 (b) of ES Act Death Penalty with a Fine of Rs.10,000/-, IDSI for one
r/w 34 IPC month
Sec.14 of FA r/w 109 RI for 2 Years with a Fine of Rs.1,000/-IDSI for one
IPC month
Sec.4 of PPD Act r/w RI for 2 Years with aFine of Rs.10,000/-IDSI for one
34 IPC month
Sec.16 of UAA r/w Death Penalty with a Fine of Rs.10,000/-, IDSI for one
34 IPC month
Sec.17 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
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month
Sec.18 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
Sec.19 of UAA r/w RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
109 IPC month
120B r/w 302 IPC Death Penalty with a Fine of Rs.10,000/-, IDSIfor one
month
121 -do-
121A Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
122 -do-
302 Death penalty with a Fine of Rs.10,000/-, IDSI for one
month.
302 r/w 34 Death penalty with a Fine of Rs.10,000/-, IDSI for one
month.
307 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
307 r/w 34 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
316 r/w 34 RI for 10 Years with a Fine of Rs.10,000/-IDSI for one
month
436 Life Imprisonment with aFine of Rs.10,000/-, IDSI for
one month
Accused No.3 201 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
466 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
474 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
Sec.3 (b) of ES Act Death penalty with a Fine of Rs.20,000/- (for each count
(two counts) Rs.10,000/-), IDSI for one month for each count
Sec.5 of ES Act Life Imprisonment with a Fine of Rs.20,000/- (for each
(two counts) count Rs.10,000/-), IDSI for one month for each count
Sec.14 of FA RI for 2 Years with a Fine of Rs.1,000/-IDSI for one
month
Sec.4 of the PPD Act RI for 2 Years with a Fine of Rs.10,000/-IDSI for one
month
Sec.16 of UAA Death Penalty with Fine of Rs.10,000/-, IDSI for one
month
Sec.17 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
Sec.18 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
Sec.19 of UAA r/w RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
109 IPC month
120B r/w 302 IPC Death Penalty with a Fine of Rs.10,000/-, IDSIfor one
month
Accused No.4 121 -do-
121A Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
122 -do-
302 Death penalty with a Fine of Rs.10,000/-, IDSI for one
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
month.
302 r/w 34 Death penalty with a Fine of Rs.10,000/-, IDSI for one
month.
307 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
307 r/w 34 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
316 RI for 10 Years with a Fine of Rs.10,000/-IDSI for one
month
436 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
201 RI for 7 Years with aFine of Rs.10,000/-IDSI for one
month
466 r/w 109 RI for 7 Years with aFine of Rs.10,000/-IDSI for one
month
474 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
Sec.3 (b) of ES Act Death penalty with a Fine of Rs.20,000/- (for each
(two counts) count Rs.10,000/-), IDSI for one month for each count
Sec.5 of ES Act Life Imprisonment with a Fine of Rs.20,000/- (for each
(two counts) count Rs.10,000/-), IDSI for one month for each count
Sec.14 of FA r/w 109 RI for 2 Years with aFine of Rs.1,000/-IDSI for one
IPC month
Sec.4 of PPD Act r/w RI for 2 Years with a Fine of Rs.10,000/-IDSI for one
34 IPC month
Sec.16 of UAA Death Penalty with a Fine of Rs.10,000/-, IDSI for one
month
Sec.17 of UAA RI for 10 Years with aFine of Rs.10,000/-, IDSI for one
month
Sec.18 of UAA RI for 10 Years with aFine of Rs.10,000/-, IDSI for one
month
Sec.19 of UAA r/w RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
109 IPC month
120B r/w 302 IPC Death Penalty with a Fine of Rs.10,000/-, IDSIfor one
month
121 -do-
121A Life Imprisonment with a Fineof Rs.10,000/-, IDSI for
one month
122 -do-
302 r/w 109 Death penalty with a Fine of Rs.20,000/- (for each count
(two counts) of Rs.10,000), IDSI for one month for each count.
307 r/w 109 Life Imprisonment with a Fine of Rs.20,000/- (for each
Accused No.5 (for two counts) count of Rs.10,000/-), IDSI for one month for each
count
316 r/w 109 RI for 10 Years with a Fine of Rs.10,000/-IDSI for one
month
436 r/w 109 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
201 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
466 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
month
474 r/w 109 RI for 7 Years with a Fine of Rs.10,000/-IDSI for one
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
month
Sec.3 (b) of ES Act Death penalty with a Fine of Rs.20,000/- (for each count
r/w 109 IPC (two Rs.10,000/-), IDSI for one month for each count
counts)
Sec.5 of ES Act r/w Life Imprisonment with a Fine of Rs.20,000/- (for each
109 IPC count Rs.10,000/-), IDSI for one month for each count
(two counts)
Sec.14 of FA r/w 109 RI for 2 Years with a Fine of Rs.1,000/-IDSI for one
IPC month
Sec.4 of PPD Act r/w RI for 2 Years with aFine of Rs.10,000/-IDSI for one
109 IPC month
Sec.16 of UAA r/w Death Penalty with a Fine of Rs.10,000/-, IDSI for one
109 IPC month
Sec.17 of UAA RI for 10 Years with aFine of Rs.10,000/-, IDSI for one
month
Sec.18 of UAA RI for 10 Years with aFine of Rs.10,000/-, IDSI for one
month
Sec.19 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
120B r/w 302 IPC Death Penalty with a Fine of Rs.10,000/-, IDSIfor one
month
121 -do-
121A Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
one month
122 r/w 109 -do-
302 r/w 109 Death penalty with a Fine of Rs.20,000/- (for each
(two counts) count of Rs.10,000), IDSI for one month for each count.
307 r/w 109 Life Imprisonment with a Fine of Rs.20,000/- (for each
(for two counts) count of Rs.10,000/-), IDSI for one month for each
count
316 r/w 109 RI for 10 Years with aFine of Rs.10,000/-IDSI for one
month
436 r/w 109 Life Imprisonment with a Fine of Rs.10,000/-, IDSI for
Accused No.6 one month
201 r/w 109 RI for 7 Years with aFine of Rs.10,000/-IDSI for one
month
466 RI for 7 Years with aFine of Rs.10,000/-IDSI for one
month
474 RI for 7 Years with aFine of Rs.10,000/-IDSI for one
month
Sec.3 (b) of ES Act Death penalty with a Fine of Rs.20,000/- (for each count
r/w 109 IPC (two Rs.10,000/-), IDSI for one month for each count
counts)
Sec.5 of ES Act r/w Life Imprisonment with a Fine of Rs.20,000/- (for each
109 IPC count Rs.10,000/-), IDSI for one month for each count
(two counts)
Sec.14 of FA r/w 109 RI for 2 Years with aFine of Rs.1,000/-IDSI for one
IPC month
Sec.4 of PPD Act r/w RI for 2 Years with aFine of Rs.10,000/-IDSI for one
109 IPC month
Sec.16 of UAA r/w Death Penalty with a Fine of Rs.10,000/-, IDSI for one
109 IPC month
Sec.17 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
month
Sec.18 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
Sec.19 of UAA RI for 10 Years with a Fine of Rs.10,000/-, IDSI for one
month
However, the learned trial Court felt that no separate sentence is
required to be imposed for the conspiracy to commit other offences
which are minor in nature as the sentence of death was already
awarded to the accused for the offence punishable under Section
120-B read with 302 of IPC.
6. Feeling aggrieved by the aforesaid convictions and
sentences imposed by the learned trial Court vide impugned
judgment dated 13/19.12.2016, accused Nos.2 to 6 preferred the
present Criminal Appeal i.e., Crl.A. No.1299 of 2016, while learned
trial Court addressed a letter vide Dis.No.812 of 2016, dated
19.12.2016 to this Court seeking confirmation of capital punishment
of death under Section 366 of the Cr.P.C. Pursuant to the said letter,
this Court registered the same as Referred Trial (R.T.) No.1 of 2016.
7. The NIA, Hyderabad, filed two charge sheets against
accused Nos.1 to 5 and a supplementary charge sheet against accused
No.6. The case of the prosecution, in brief, is as follows:
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
i) The NIA laid charge sheet No.1 against accused Nos.1 to 5
stating that the Indian Mujahideen (for short ‘IM’), an association
was declared as an Unlawful Association as per the provisions of the
UAP Act which was started as “Usaba” in Bhatkal, Karnataka State.
The word Usaba means “Congregation” and its object is to collect
the persons having similar mentality and dedication to do something
it also includes waging Jihad or holy war against Hindus, other
communities, and the Indian State. Usaba meetings were held on
regular basis on every Friday in the house of Iqbal Bhatkal in which
issues, like weapon training, finance, talent spotting, spiritual
discourse, and other matters pertaining to procurement of logistics
were discussed.
ii) The role of IM in the commission of terrorist incidents was
revealed for the first time through email sent to certain media
channels/news networks after bombings in the courts of Varanasi,
Faizabad (Ayodhya) and Lucknow, etc., showing the major reasons
as Babri Masjid demolition and Gujarat riots.
iii) On 21.02.2013 at 18:58:38 hours and 18:58:44 hours two
consecutive bomb blasts took place at Dilsukhnagar, Hyderabad,
resulting in the death of eighteen (18) persons including a quickborn
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
child and injuries to 131 persons. The first bomb blast was at 107
Bus Stop, Dilsukhnagar, and P.S.Malakpet registered Crime No.56
of 2013 in this regard. The second bomb blast was at Al-Mirchi
Center, Dilsukhnagar and P.S.Saroornagar registered Crime No.146
of 2013 in this regard. Accordingly, an initial investigation was
undertaken by the aforesaid Police Stations. Subsequently, the
Government of India entrusted the investigation to NIA as per Orders
in MHA F.No.11011/14/2013-IS-IV dated 13.03.2013 and,
thereafter, the cases were re-registered as R.C.No.01 &
02/2013/NIA/HYD on 14.03.2013.
iv) On 29.08.2013, the NIA arrested accused Nos.2 and 5 in
connection with investigation of R.C.No.06/2012/NIA/DLI and
accordingly produced before the Special Court, New Delhi, and the
NIA interrogated both the said accused and found their involvement
in Hyderabad Twin Bomb Blasts along with accused No.1, Riyaz
Bhatkal @ Ismail Shahbandri. Accordingly, after obtaining the
necessary permissions, accused No.2 was produced before the
Special Court for NIA at Hyderabad on 19.09.2013, and accused
No.5 was produced before the Special Court for NIA at Hyderabad
on 23.09.2013 and both the accused were granted custody of NIA.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
v) Both the said accused stated before the NIA about the
conspiracy among accused Nos.1 to 5 for waging war against the
Government of India by committing terrorist attacks to kill innocent
people, to disrupt the security of India, and to create terror and
insecurity feelings in the minds of common people which are
prejudicial to the integrity and sovereignty of India, by receiving
financial and material assistance from Inter-Services Intelligence
(ISI).
vi) As per the directions of accused No.1, accused Nos.2 and
3 had come to India via Nepal in the month of September, 2010 and
accused No.4 received them and all three of them reached
Samastipur in Bihar and met accused No.5. Subsequently, accused
Nos.2 and 3 went to Mangalore and stayed there at Zephyr Heights
by entering into lease Agreement in the name of accused No.2 as
“Daniyal”.
vii) Accused No.2 used to contact accused No.1 through
online chatting by using proxy servers. Accused No.1 sent money
through Hawala & WUMT to accused Nos.2 and 3. Accused Nos.2
and 3 received the same using fake identitiesat Mangalore in
different areas.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
viii) During January, 2013, accused No.2 was informed by
accused No.1 that in a few days, explosive material would be
delivered in Mangalore, and accused No.1 was also instructed to
carry out bomb blasts in Hyderabad and accused No.2 received the
explosives material from an unknown person at Mangalore.
ix) In the meantime, accused No.4 came to Hyderabad during
the last week of January 2013 and searched for shelter near
Abdullapurmet, and took a house on rent on 07.02.2013. Accused
No.2 booked his bus ticket in the name of Danish and came to
Hyderabad from Mangalore. Accused No.4 received accusedNo.2 at
L.B. Nagar and took him to Abdullapurmet.
x) Accused No.2 again left for Mangalore on 12.02.2013 and
met accused No.3 at Mangalore both these accused carried the
explosive material from Mangalore in VRL Travels and reached
Hyderabad on 16.02.2013 and both the accused reached
Abdullapurmet and kept the explosives materials at shelter place
rented by accused No.4.
xi) As per the instructions of accused No.1 through chatting,
accused Nos.2 to 4 conducted reconnaissance in Hyderabad
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
including Dilsukhnagar and they decided to plant bombs at
Dilsukhnagar in the evening hours. Accordingly, all the three
accused conducted a test bomb blast at the deserted place at
Abdullapurmetsuccessfully.
xii) On 20.02.2013, accused Nos.2 to 4 went to Sri
Mahalakshmi Fancy Steel Shop at L.B. Nagar and purchased two 7½
liter capacity pressure cookers for making Improvised Explosive
Devices (IED) by filling explosives therein. Accused Nos.2 and 4
purchased an old bicycle from a cycle repairer and parked at the
Parking Stand, at Malakpet Railway Station. They also purchased
one-meter plastic sheet from a shop near Chadarghat Bridge for
packing and filling the explosives inside the pressure cooker.
xiii) On 21.02.2013, accused Nos.2 and 4 went to Thursday
Market i.e. Jummerath Bazaar and accused No.3 was at
Abdullapurmet preparing Improvised Explosive Devices.
Accordingly, accused Nos.2 and 4 purchased another bicycle and
parked the same at Parking Stand, at Malakpet Railway Station.
xiv) On 21.02.2013 at about 04:00 P.M., accused Nos.2 and 4
were waiting outside the shelter at Abdullapurmet, and accused No.3
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
prepared the IEDs by setting time for explosion as 07:00 P.M.
Accused No.4 informed the house caretaker that he was leaving to
Mumbai as his mother was in serious condition and left the place and
they reached Malakpet Railway Station Parking area through an
auto-rickshaw. Accused No.3 waited outside the parking area with
IED and accused Nos.2 and 4 went inside the parking place and
returned with both bicycles.
xv) Accused No.2 directed both Accused Nos.3 and 4 to
proceed to Dilsukhnagar and accused No.2 waited until both the
accused completed their tasks and accused No.3 planted a bomb at
107 bus stop and accused No.4 planted bomb at Al-Mirchi Center.
The IED planted by accused Nos.3 and 4 exploded at 18:58:38 hours
and 18:58:44 hours creating panic and terror against the public and
resultingin death of seventeen (17) persons and one unborn child and
injuries to 131 persons. Both the blasted areas i.e., 107 Bus Stop and
A1- Mirchi Center, and three motorcycles and one scooter were also
completely damaged, apart from the damages caused to the other
public and private properties in the surrounding areas.
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xvi) Accused Nos.2 and 3 left for Bangalore and from there to
Mangalore and as per the instruction of accused No.1, accused No.2
left for Nepal and met accused No.5, who provided shelter.
xvii) Accused No.2 used to chat with accused No.1 and one
Mirza Shadab Baig by using Coded Language and different accounts
of Yahoo Incorporation and used to discuss various operations, tasks,
arrangementsof finance for funding their activities. The Code
Language of accused No.2 is as: JJ: Yasin Bhatkal (A-5); Cappt:
Capital (Kathmandu or Delhi); pandittji: Bal Bahadur Thapa, who
was associated at Nepal; jadd: Waqas (A-3); hss or hazil: Hassan @
Monu @ Tehsin (A-4); kalungii: Explosives; nnn: Nitrate
(explosive); elaichii: Detonator; pt: Paltalk; n: Nimbuzz chat; waagu
: Al-Qaeda in Waziristan; aslm: IM operative Jabrood of Bhatkal;
alii: Mohsin Chaudhary of Pune;and bigaduu: IM operative Shahzad.
xviii) Accused No.2 also pointed out the following places at
Mangalore: VRL Travels where accused Nos.2 and 3 booked tickets
to Bangalore, the shop from where they purchased digital watches
for preparation of bombs, the commercial complex where they
purchased the mobile phone from a shop, the cyber cafes from where
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016they used to chat with accused No.1, a shop Supama Forex Pvt. Ltd.,
from where they received cash, Ding Dong Electronics where they
received Hawala money from accused No.1, Zephyr Heights, where
the accused had shelter.
xix) Accused No.2 also pointed out the following places at
Hyderabad: the cycle shop and market from where they purchased
bicycles, the pan shop from where accused No.2 called accused No.4
for receiving him, Sri Mahalakshmi Steel Shop from where they
purchased two pressure cookers of 7½ literscapacity, the exact blasts
spots where the IEDs., were planted at Malakpet Railway Station,
etc.
xx) On 28.09.2013, accused No.2 led to the hillock where he
along with accused Nos.3 and 4 had conducted a test blast. On
04.10.2013 and 08.10.2013, accused Nos.2 and 5 plotted hideouts
through Google Mapsin Bangladesh, Dubai, Pakistan, Nepal and
India.
xxi) The accused had been chatting with each other by
keeping their identity secret and they have created E-mailIDs, with
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Proxy Servers on fake names by using code language and through
encrypted files.
xxii) Accused No.5, who was staying in Pokhara, Nepal, and
chatted with accused No.1, was fully involved in the conspiracy that
led to the blasts at Dilsukhnagar in Hyderabad. During the chat
conversation on 28.11.2012 with accused No.5, accused No.1 stated
his intention of sending accused No.4 for conducting bomb blasts at
Hyderabad. On 16.12.2012, accused No.1 chatted with accused No.4
wherein accused No.4 stated that he was thinking about preparing for
blasts in Hyderabad and searching for shelter at Hyderabad. On
20.12.2012, accused No.5 asked accused No.1 about the Hyderabad
blasts, to which accused No.1 replied that he was trying to arrange
the explosive and that the Police were looking for accused Nos.2 and
3. Accused No.5 advised accused No.1 to do 2-3 blasts at a new
place and thereafter shift the location. Accused No.5 also advised
accused No.1 to make thin boat-shaped IEDs, for the blast of 1 kg.,
explosive each, which could be carried easily by tying on the
stomach and also advised to use picric acid for making bombs.
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xxiii) On 27.12.2012, accused No.5 and accused No.1 chatted
about the role of accused Nos.2 to 4 in executing bomb blasts.
Accused No.5 advised not to keep the explosive unused for a long
time. On 30.12.2012 accused No.5 enquired about the preparation of
blasts to be conducted and advised that white gelatin was good for
explosion. On 22.01.2013 accused No.5 again enquired about the
blasts, for which accused No.1 replied that they had procured the
explosives, and there was discussion about the quality of explosives.
On 27.01.2013 accused No.1 informed accused No.5 about accused
No.4’s tour in connection with the blast. On 07.02.2013 accused
No.1 informed accused No.5 about the finding of the house by
accused No.4 at Hyderabad and accused No.5 also prayed for the
success of the blast and accused No.5 also informed about his
network in Nepal. On 11.02.2013 accused No.1 told accused No.5
that accused No.2 had gone to accused No.4 and that he was chatting
with accused No.3. On 16.02.2013 accused No.1 told accused No.5
that on the previous day accused No.2 and accused No.3 met accused
No.4. On 20.02.2013 accused No.1 told accused No.5 that the blast
was scheduled for the next day and asked to especially pray for the
success of the blasts.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xxiv) On the instructions of accused No.1, after the
Hyderabad blasts accused No.2 was shifted to Birgunj, Nepal, and
thereafter to Pokhara, Nepal where he met accused No.5 and stayed
there.
xxv) On 27.02.2013 through chatting, accused No.1 directed
accused No.5 to make arrangements for accused No.2. On
02.03.2013, accused No.1 gave a mobile number of accused No.2 to
accused No.5. On 04.03.2013 accused No.5 chatted with accused
No.1 and it was indicated that accused No.2 had reached Nepal. On
06.03.2013 accused No.1 again asked accused No.5 to change the
room where he had stayed with accused No.4, for which accused
No.5 informed him that he was trying for a new room. On
09.03.2013, accused No.1 informed accused No.5 that he had given
passports to be made for accused No.4 and accused No.3 for
boarding the flight from Nepal. Accused No.1 informed that the
passports were being made from Kerala. Accused No.1 also
mentioned that accused No.4 and accused No.3 were to be called
back to Pakistan and that they would be taken on a flight from Nepal
thus from a security point of view he wanted to keep them separate
from accused No.2.
19
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xxvi) The sanction for prosecution for prosecuting the
accused for the offences under the UAP Act has been accorded by
the Ministry of Home Affairs, Government of India vide Order
No.11011/14/2013-IS.VI (IV) Government of India. Ministry of
Home Affairs, Internal Security-I Division, North Block, New Delhi,
dated 28.02.2014.
xxvii) The Consents for prosecution of the accused for the
offences under the ES Act has been accorded by the District
Magistrate of Rangreddy and Hyderabad vide proceedings
No.C3/306/2014, dated 21.02.2014 in R.C.No.02/2013/NIA/HYD,
and vide proceedings No. C2/343/2014, dated 09.02.2014 in
R.C.No.1/2013/NIA/HYD.
xxviii) The NIA, Hyderabad, laid supplementary (charge
sheet No.2) against accused No.1 and accused Nos.3 and 4. The
Special Cell, Delhi Police, arrested accused No.3 on 22.03.2014 and
accused No.4 on 25.03.2014 and interrogated them. Accused Nos.3
and 4 were taken to the scene of crime and they enacted the
movements with the cycles. Accused No.3 used coded language to
chat with other accused through different e-mail IDs.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xxix) Both accused Nos.3 and 4 had pointed out the
following:
a) Temporary shelter place at Deshmukh Village where accused
No.4 stayed for about one week;
b) The cycle puncture shop from where the accused purchased
one old bicycle for Rs.1400/- on 20.02.2013;
c) The pan shop from where accused No.3 made a phone call to
accused No.4 to come and receive him;
d) Sri Mahalakshmi Steel Shop from where they purchased two
pressure cookers of 7 ½ litres capacity each to prepare IEDs.,
e) The exact blast spots;
f) The cycle parking stand at Malakpet Railway Station;
g) Jummerathbazaar (Thursday Market) from where they
purchased the second old cycle for Rs.1,500/-;
h) The house at Abdullapurmet;
i) Test blast site on the hillock;
j) VRL Travels and Salamat travels from where they had booked
their onward and return tickets from Hyderabad to Bangalore;
and
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
k) Nampally Railway Station from where accused No.4 travelled
to Ranchi after the bomb blast.
xxx) Accused No.3 had pointed out the following places at
Mangalore and Bangalore:
a) VRL Travels from where accused Nos.2 and 3 have booked
tickets for the visit to Bangalore and Hyderabad;
b) The shop from where they had purchased digital watches
for the preparation of bombs;
c) The computer cyber cafes from where they used to chat
with accused No.1;
d) A shop Supama Forex Pvt. Ltd., from where they received
cash;
e) Ding Dong Electronics where they received Hawala money
from accused No.1;
f) Zephyr Heights where the accused had shelter.
xxxi) On 28.05.2014, accused No.3 plotted hideouts through
Google maps in Bangladesh, Dubai, Pakistan, Nepal and India. He
also plotted down the LeT training camp, where he underwent
training, besides plotting down FATA area in North Waziristan,
where he underwent Taliban training.
22
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xxxii) The NIA, Hyderabad, laid second supplementary
(charge sheet No.3) against accused No.6. On 05.09.2014, the Delhi
Police arrested accused No.6 and also seized some articles from his
possession in connection with investigation case in FIR No.54 of
2011 of Delhi Special Cell. Accused No.6 is one of the conspirators
of terror activities in India. On the instructions of accused No.1,
accused No.6 provided fake IDs., Hawala Money, SIM Cards,
Mobile Phones and also knowingly acted as a carrier of explosives to
aid the other members of IM i.e., accused Nos.2 to 5.
xxxiii) On the instructions of accused No.1, during 2010
accused No.6 purchased a DELL Laptop at Mumbai and
downloaded/scan voter IDs, driving licenses and other documents
from Google and prepared fake documents with the help of photo-
shop software installed in his laptop. Accused No.6 also shared
encrypted fake documents to accused No.1 whenever he required.
Accused No.6 was also involved in several previous bomb blasts in
different parts of India.
xxxiv) The fake IDs prepared and supplied by accused No.6
were used by accused Nos.2 to 5 to procure SIM cards, to hide their
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
identity to evade arrest before the bomb blast and after the bomb
blast. Accused No.4 received money through Western Union Money
Transfer (for short ‘WUMT’) sent by accused No.1. On 27.12.2012,
accused No.4 withdrew Rs.25,000/- from WUMT, Patna by
producing the fake IDs produced by accused No.6 through accused
No.1 in the name of Girish Joshi, resident of Dehradun, Uttarakhand,
Election ID No.LJS2308815. Accused No.3 also received money
through WUMT using IDs in the name of Nabeel Ali Ahmed with
his photo for five times.
xxxv) Accused No.6 is an active member of IM and he was
initiated into IM by his father-in-law Mohsin Choudhary, who was
inspired by Jihadi literature. Accused No.6 had good knowledge of
computers which he had acquired in Hyderabad while undergoing
five months of hardware, networking and Linux courses from Zoom
Technologies, Banjara Hills, Hyderabad. They said Mohsin
Choudhary used to chat regularly from Pakistan and used to ask
accused No.6 to do blasts in India. Both Mohsin Choudhary and
accused No.1 motivated accused No.6 for Jihad and inducted him
into Indian Mujahedeen. Accused No.6 also supplied explosives at
24
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
the time of the German Bakery blast, in Pune to accused No.5 during
February and April 2010.
xxxvi) On 27.12.2012, accused No.6 received uploaded voter
ID card in the name of Girish Chandra Joshi from accused No.1, then
accused No.6 changed the photo on the voter ID and replaced the
same with the photograph of accused No.4. Accused No.6 also used
to send mails to the media houses claiming responsibility of bomb
blasts by IM from Mumbai.
xxxvii) After the arrest of accused Nos.2 and 5, accused No.6
left for Nepal via Raxaul on 05.02.2014 and he also stored a number
of fake IDs, driving licenses, passports, photos, and other terrorist
material in his laptop and pendrives with the help of encryption
software.
xxxviii) During the investigation in R.C.No.06/2011/NIA/
Delhi, the details emerged from the chat in respect of accused Nos.5
and 6 and specific transactions, accused Nos.2 and 3 at Mangalore
VKC and Supama and CS tours and travels, accused No.4 at various
places including Patna. On 22.12.2012, accused No.1 gave accused
No.6 a link for a passport copy to be downloaded.
25
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xxxix) On 27.12.2012, accused No.4 went to Patna and
received money from Apna Tours and Travels, WUMT by producing
a fake voter ID in the name of Mr. Girish Chandra Joshi. On
28.12.2012, accused No.6 and accused No.1 chatted about the
receiving of money.
xl) Accused No.6 communicated with other IM Members’e-
mails in encrypted and coded form so that the content of their
communication remains secret. He was in regular contact with
accused No.1 and also with accused Nos.2 to 5 and also with Mohsin
Chaudhary over Internet chatting for the preparation and supplying
of fake IDs and delivery of explosives.
8. The sanction for prosecuting the accused for the offences
under the UAP Acthas been accorded by the Ministry of Home
Affairs, Government of India, vide Order No.11011/14/2013-15.VI
(IV),Government of India, Ministry of Home Affairs, Internal
Security-I Division, North Block, New Delhi, dated 27.05.2015.
9. On 23.12.2014 the case against accused No.1 was split, and
on 17.10.2014, the case against accused Nos.2 and 5 is pending in
Special Sessions Case No.2 of 2014, while the case against accused
26
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
Nos.1, 3, and 4 was ordered to be clubbed with Special Sessions
Case No.2 of 2014 for conducting joint trial. On 26.02.2015 as per
the Orders of this Court in R.O.C.No.1030/E1/2010, the Special
Sessions Case Nos.2 and 3 of 2014 were transferred to the trial
Court. On 10.03.2015, the present case was received from learned I
Additional Metropolitan Sessions Court, Nampally. Hyderabad, vide
letter Dis. No.497 of 2015, dated 10.03.2015, and renumbered/
registered as Special Sessions Case No.1 of 2015. As per Dis.No.682
of 2015, dated 14.08.2015 and regarding reference No.59/CP-
Camp/Cyb/2015,dated 04.08.2015, this Court accorded permission to
the trial Court, vide R.O.C.No.1037/E1/2010, dated 21.08.2015, to
conduct trial of Special Sessions Case No.1 of 2015 in the Central
Prison, Cherlapally, Rangareddy District, thrice a week i.e., Monday
to Wednesday from 24.08.2015 onwards.
10. After framing the charges against accused Nos.2 to 6 as
mentioned in the impugned judgment of trial Court, the trial Court
proceeded with trial.
11. During the trial, the prosecution examined PWs.1 to 157
and exhibited Exs.P1 to 507 and also MOs.1 to 201. The accused did
not examine any witness on their behalf. However, they got
27
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
exhibited Exs.D1 to D40, which are relevant portions in Section –
161 of Cr.P.C. statements, IP addresses, details of mails etc.
12. After hearing both sides, the trial Court convicted accused
Nos.2 to 6 and accordingly imposed death sentences and other
sentences on them in the manner stated in the impugned judgment.
Challenging the same, accused Nos.2 to 6 preferred this appeal.
Whereas, the learned trial Court addressed a letter, dated 19.12.2016,
to this Court seeking confirmation of capital punishment of death
under Section – 366 of the Cr.P.C., which was registered as Referred
Trial (R.T.) No.1 of 2016.
13. COMMON CONTENTIONS OF ACCUSED Nos.2 to 6:
i. There was a delay of 1½ hours approximately for registering
the crime on the complaints lodged by the de facto
complainants and the said delay was not explained properly;
ii. The timing version of the blast in the complaint and deposition
does not match;
iii. The FIR is not having full details of bomb blast and there is no
mention of the names in the complaint;
28
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016iv. The complaint is in English and the complainant is not aware
of English language and therefore, it is contended that PW1 is
unaware of the contents of the complaint;
v. In the FIR, the details of witnesses were not mentioned and,
therefore, the FIR is not reliable;
vi. Seizure procedure was not followed;
vii. Before registration of crime, NIA Officials are there at the
scene of offence;
viii. Dying Declarations were not recorded;
ix. FSL Experts were not examined;
x. Prosecution failed to prove the charges leveled against the
accused beyond reasonable doubt;
xi. Identification Parade (IP) was not conducted as per the
procedure laid down under the Criminal Rules of Practice;
xii. Identification parade was conducted on 28.06.2014 after one
and half years of the blast/incident;
xiii. None of the witnesses identified the accused;
xiv. There is no eye-witness or the direct evidence;
xv. Entire case rests on circumstantial evidence, which does not
form a complete chain;
29
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016xvi. There is break of chain of events;
xvii. Sanctions were not obtained properly and the same are in
violation of the procedure laid down under Section – 196 of
Cr.P.C.;
xviii. Sanctioning Authorities were not examined;
xix. Sanction proceedings issued vide Exs.P393, 394, 395 are not
in accordance with the procedure laid down under law;
xx. No evidence from the scene of offence/spot was collected;
xxi. Opinions of Experts were not properly obtained;
xxii. Cognizance was not taken properly. No reasons were assigned
in the cognizance orders;
xxiii. Charge was altered without notice and without following due
procedure laid down under law;
xxiv. Procedure for framing charges was not followed;
xxv. There is violation of Sections – 211, 212, 215, 216 (2), (3), (4)
and (5) and 218 of Cr.P.C.;
xxvi. The Magistrates, who recorded statements under Section – 164
of Cr.P.C., were not examined;
xxvii. Notification issued under Section – 6 of NIA Act is not there;
30
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016xxviii. Prosecution failed to establish any clue with regard to
Organization of accused Nos.2 and 5;
xxix. PW.54 is a planted witness; xxx. Accused No.4 never stayed in the house at Abdullapurmet as
per evidence of Investigating Officer;
xxxi. It is a Transformer Blast;
xxxii. PW.59, Merugu Ilaiah is not an eye-witness;
xxxiii. Reconstruction of the scene is not in accordance with the
procedure laid down;
xxxiv. This Court cannot appoint mitigators to obtain reports with
regard to mitigating circumstances of the accused;
xxxv. Contradictions in the depositions of prosecution witnesses,
which are major;
xxxvi. There is violation of the procedure laid down under Rules – 31
and 32 of the Criminal Rules of Practice;
xxxvii. Deposition of PW.143 i.e., Mr. T. Nageswar Rao, Reporter of
TV9 Telugu News Channel, cannot be believed;
xxxviii. Certificates under Section – 65B of the Indian Evidence Act,
1872 (for short ‘Evidence Act‘) were not obtained;
xxxix. Panch witnesses were not examined;
31
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016xl. The doctors, who treated the injured persons, were not
examined;
xli. Learned trial Court did not consider the purport of Section – 30
of the Evidence Act;
xlii. Learned trial Court cannot record conviction twice or more for
the very same offences and it amounts to “double jeopardy”;
xliii. Memos were filed by the accused raising objection not to
pronounce judgment in the absence of their counsel. The same
were not considered;
xliv. Thus, learned trial Court convicted the accused without
hearing the accused on sentence. Therefore, the same is in
violation of Sentencing Policy and law laid down by the Apex
Court;
xlv. Recoveries were not properly proved;
xlvi. Prosecution failed to prove the cycle theory; and
xlvii. Injured witnesses were not examined.
xlviii. Conspiracy was not proved;
xlix. There was no claim by Indian Mujahuddin against accused
No.6;
32
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016l. Prosecution failed to prove allegations against accused No.6
about the preparation of fake ID Cards in respect of accused
Nos.2, 3 and 5;
li. Prosecution failed to prove the allegation that fake ID
furnished to accused No.1, who in turn provided the same to
accused Nos.2, 3, and 5 by producing cogent evidence;
lii. NIA has committed irregularities with regard to FIR No.54 of
2011 and RC No.6 of 2011; and
liii. Without considering the same, the trial Court convicted the
accused and imposed the maximum punishment of the death
penalty.
14. SPECIFIC CONTENTIONS OF ACCUSED No.6:
i. His name was not there in the FIR, charge sheet, or first
supplementary charge sheet. His name was added in the
second supplementary charge sheet;
ii. PW.18 is not an Expert, his testimony is not trustworthy. His
evidence has no legal sanctity;
33
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016iii. Placing reliance on Section – 26 of the General Clauses Act,
1897, learned counsel for accused No.6 contended that learned
trial Court did not consider the purport of the said provision;
iv. Learned trial Court convicted accused No.6 for the offences
under Sections – 109 and 120B of IPC and Section – 18 of
UPA without considering the contentions of accused No.6 that
the depositions of prosecution witnesses do not constitute the
ingredients of the said offences and that prosecution failed to
prove the said offences against accused No.6 by producing
cogent evidence beyond all reasonable doubt.
15. Learned counsel for accused Nos.2 and 5 relied upon the
following decisions:
d) Dhan Raj alias Dhan v. State of Haryana 4
g) Jagjit Singh v. State of Punjab7
1
. (2016) 1 SCC 472
2
. (2010) 8 SCC 233
3
. AIR 1987 SC 955
4
. (2014) 6 SCC 745
5
. 2004 Crl.L.J. 1904
6
. (2015) 5 SCC 1
34
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
i) Learned counsel for accused No.6 relied upon the following
decisions:
a) Manoj Kumar Soni v. The State of M.P. 10
e) Yogesh v. State of Maharashtra 14
16. SUBMISSIONS OF SPECIAL PUBLIC PROSECUTOR:
i) NIA Officials were present at the spot along with Army and
Law and Order Police, as part of rescue operations;
ii) SIT was constituted. Thereafter, the investigation was
entrusted to NIA; NIA is not a police station;
7
. (1994) 4 SCC 726
8
. (2014) 7 SCC 716
9
. (2016) 3 SCC 325
10
. 2023 INSC 705
11
. (2004) 7 SCC 759
12
. AIR 2010 SC 806
13
. AIR 1966 SC 1457
14
. (2008) 10 SCC 394
15
. AIR 1971 SC 1865
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
iii) There is no delay in lodging the complaint and in a case, like
this, 1½ hour delay as alleged by the accused is reasonable and
is not fatal to the case of prosecution;
iv) Eye witnesses are there; v) As per Section - 3 (2) of the NIA Act, NIA has jurisdiction all over India; vi) Accused have used IED Blast - improvised explosive device in
the twin blast and accused No.3 has expertise in the said field;
vii) Prosecution proved the guilt beyond reasonable doubt;
viii) Identification parade was conducted strictly in accordance
with the procedure laid down;
ix) FSL reports were obtained properly and as per the procedure
laid down under law;
x) Based on the investigation, charge sheet, first supplementary
charge sheet and second supplementary charge were filed.
There is no irregularity;
xi) PW.1 and 2 are eye-witnesses;
xii) Injured witnesses were also there;
xiii) CCTV Footages were collected;
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
xiv) Scene of offence was reconstructed as per the procedure.
There is no irregularity;
xv) Seizures were proper;
xvi) In a matter like this, minor omissions and contradictions can
be ignored;
xvii) It is an organized Crime;
xviii) Allegations leveled against the accused are very serious and it
is an organized crime. There are 18 deaths and injuries to 131
innocent persons; and
xix) Therefore, on consideration of the same, the trial Court
convicted the accused and imposed death penalties. There are
no irregularities.
17. Learned Sepcial Public Prosecutor relied upon the
following decisions:
ii) State of Uttar Pradesh v. Subhash alias Pappu17
iii) Lallan Rai v. State of Bihar 18.
16
. 2023 LawSuit (SC) 271
17
. (2022) 6 SCC 508
18
. (2003) 1 SCC 268
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
18. ANALYSIS AND FINDINGS OF THE COURT:
i) To prove the charges framed against accused Nos.2 to 6, the
prosecution has examined PWs.1 to 157 and exhibited Exs.P1 to 507
and also MOs.1 to 201. The accused did not examine any witness on
their behalf. However, they got exhibited Exs.D1 to D40, which are
relevant portions in Section – 161 of Cr.P.C. statements, IP
addresses, details of mails etc.
a) Presence of NIA Officails at the scene of offence before
entrustment of investigation to NIA in terms of NIA Act:
b) Entrustment of investigation to NIA;
c) Jurisdiction of Special Court for trial of Scheduled
Offences Investigated by National Investigation Agency –
cum – V Additional Metropolitan and Sessions Judge,
Rangareddy District at L.B. Nagar, Telangana State; and
d) Delay in lodging the complaint.
ii) Perusal of record would reveal that immediately after the
incident, when rescue operations were going on, NIA Officials were
present along with Army, Civil Police etc., as spoken by PW.47.
Initially, the crime was registered by Mr. A. Anjaneyulu, Sub-
Inspector of Police (PW40) on the complaint given by Mr. G. Anand
(PW2). On 21.02.2013, as per the instructions of the then
Commissioner of Police, Cyberabad, PW47 – Mr. M.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
Venkateshwarlu, the then Assistant Commissioner of Police, took up
the investigation. He visited Saroornagar Police Station and received
C.D. from PW.40 pertaining to bomb blast occurred at A-1 Mirchi
Center, Dilsukhnagar, Hyderabad.
iii) PW.47, during chief-examination, deposed as under:
“I am working as ACP, Panjagutta since 25-06-
2014. Previously I worked as ACP Crimes,
Cyberabad from 14-06-2011 to 21-02-2014. On
21-02-2013 as per the instructions of
Commissioner of Police, Cyberabad vide his
memo No.36/CP/Camp/Cyberabad dt.21-02-2013
at 09-00 pm., I acknowledged the memo and took
up the investigation in Cr.No.146 of 2013 of
P.S.Saroornagar pertaining to bomb blast
occurred at Dilsukhnagar A1-mirchi Center.
Immediately I visited Saroornagar Police Station
and received the CD file from SI A.Anjaneyulu.
After verification of investigation done by SI I
found it on proper lines. Immediately I rushed to
the scene of offence situated in front of A1
mirchi center, Rajiv Chouck, Dilsukhnagar,
where I observed the scene of offence and it was
properly safe-guarded by the barricades, iron
stoppers, traffic cones, reflective tapes by the
time I visited the scene. The scene of offence was
also provided with lights with two generators
39
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016provided by the Army Head Quarters at
Hyderabad and Cyberabad. The traffic was also
diverted towards Malakpet by closing the road
leading from Rajiv Chowk towards Konark
theatre. When I reached the scene of offence the
DCP and ACP LB Nagar, SHO Saroornagar
Narasimha Rao, Additional Inspector
Saroornagar Srinivas Rao and other three Sub-
Inspectors of Police were present. I have
examined the SHO Saroornagar Narasimha Rao,
Additional Inspector Saroornagar Srinivas Rao,
Sl Sri.Ch.Sudhakar Rao, S. Ramesh SI and
recorded their 161 Cr.P.C. Statements. Prior to
my reaching the scene of offence, the above
officers who are present at the scene have shifted
the huge number of injured persons by calling
108 ambulances, bus, vehicles, autos to various
hospitals for treatment. The same officers have
also shifted 7 dead bodies found in front of A1-
mirchi center after taking photographs and video
coverage by PC Samaiah of Saroornagar Police
Station. Later I secured the presence of Panchas
LW288 M. Mallikarjun, LW289 P. Kiran Kumar
at 10-00 pm., and conducted scene of crime
observation in their presence. Ex.P27 is the
scene of crime, observation-cum-seizure report
conducted in the presence of the above said
panchas. During the observation there were
number of blood pools and severed human flesh
40
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016and some human body parts and organs. We also
found eatery items, vessels, gas stove, cylinder,
showcases, flexes, name boards, banners,
damaged cycle parts in pieces, cycle frame of
Atlas company and front tyre manufactured by
Ganga Toofani Takat etc., as mentioned in Ex
P27. While conducting panchanama under Ex
P27 the clues team of Hyderabad, CDTS clues
team, Counter intelligence clues team, including
NIA clues team personnel were present during
panchanama proceedings. With the help of above
teams i seized the material objects as narrated in
page No.4 of Ex.P27 and another serial number 1
to 13 as narrated in the same page. I have also
drawn the rough sketch at scene of offence which
is Ex.P28. Ex.P27 and P28 are typed on laptop
with the assistance of Venkat Reddy HC of
Saroornagar Police Station and DTP center
system operator Saroornagar. The scene was
secured by posting one platoon of APSP and two
local police of Saroornagar Police Station for the
purpose of further investigation. In pursuance of
memo issued by the Commissioner of Police I
have taken the assistance of 7 Inspectors and 12
Sub-Inspectors of LB Nagar Zone and Central
Crime Station and Finger Print Inspector
Thatharao. Accordingly I deputed 7
inspectors/SIs for conducting inquest at Osmania
General Hospital mortuary room and other 12
41
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016Inspectors/Sls were deputed to other various
hospitals for recording the injured persons
statements at various hospitals. The deputed
officers are PW41, PW42, PW43, PW44, PW45,
PW46. On next day i.e., on 22-02-2013 the
deputed officers proceeded with the investigation
according to the instructions. On 23-02-2013 I
have the prepared the letter of advice of seized
MOs and sent them to FSL for examination and
report. On the same day the Anti-Terrorist Cell of
Maharastra, Bangalore, Gujarath and other
Intelligence Bureau officers also inspected the
scene of occurrence. I also deputed 10 special
teams to near vicinity of the scene of crime to
locate the suspects by searching the lodges, and
other old bicycle repair shops and mechanics to
identify the Atlas cycle which was suspected to
have been set-up with explosive substances. On
25-02-2013 I have collected the seven aluminum
splinters from Yashoda Hospital which were
removed from the person of the injured for the
purpose of sending them to FSL to know the kind
of splinters which were found in the injured
persons. On 26-02-2013 again visited the scene
of offence and secured the presence of panchas
LW290 J. Satyanarayana Reddy, LW291 K.
Venkat Ratnam for the purpose of seizing the
remaining material objects at the scene. Ex.P29 is
the crime scene seizure panchanama conducted
42
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016on 26-02-2013. The material objects from serial
No.1 to 18 at page No.2 of Ex.P29 were seized
and sent to FSL through Court.
On 27-02-2013 as it was Thursday I deputed
two CCS Inspectors along with men to Jummerat
Bazar to cause enquire about the old bicycle
sellers to connect the investigation with the
bicycle seized at scene. On the same day I
received the information about foetus death of
mother P.Yashoda from Care Hospital, Banjara
Hills. I deputed SI C.Venkateshwarlu to conduct
inquest over the foetus and sent to hospital from
there foetus sent to Osmania General Hospital for
conducting postmortem. On 28-02-2013 received
the postmortem examination reports of P1 to P12
from Osmania General Hospital from various
doctors and the cause of death mentioned “died
due to multiple blast injuries to head, trunk,
pelvis, thigh, chest, abdomen and blast injuries
associated with burns” and also received 25
medical certificates. Subsequently I received the
death intimation of D13 Amrutha Ravi from
Yashoda Hospital, Malakpet. I deputed SI C.
Venkateshwarlu for conducting inquest at
Yashoda Hospital and from there the dead body
was shifted to Osmania General Hospital. Later
on with the assistance of A.Anjaneyulu deposited
the all the MOs which were seized from the scene
43
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016of offence in the Hon’ble Court from there the
MOs were sent to FSL for examination. Later on
I received the instructions from Commissioner of
Police, Cyberabad vide memo No.36/CP-Camp-
Cyb/2013 dt. 18-03-2013 subsequently I handed
over the CD file along with 12 postmortem
reports, 103 161 Cr.P.C. statements, 48 wound
certificates, 2 albums, 2 CDs and one pen drive to
LW439 Sri.K.Sunil Immanuel, CIO,
Superintendent of Police, NIA, Hyderabad for the
further investigation.
Mo.1 is the damaged scooter
Mo.2 is the damaged Motor cycle No.AP 29 AV
9548Mo.3 is the damaged Motor cycle No.AP 9 AC 7
Mo.4 is the damaged Motor cycle No. not visible
Mo.5 is the damaged cycle parts of Atlas
company which includes material objects from
items No.1 to 5 & 11 of page No.4 of Ex.P27.
Ex.P30, P31, P32, P33 are memos issued by me
dt.21-02-2013 deputing several officers for the
purpose of investigation. Ex. P34 is the handing
over letter along with enclosures containing 16
sheets including check list of the details of
investigation done. The NIA police and other
police agencies have extended their assistance by
44
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016guiding me but they did not conduct any
investigation nor they interfered in the
investigation.”
iv) During cross-examination on behalf of accused No.2, this
witness admitted as follows:
“I personally requested LW288 M.Mallikarjun,
LW289 Kiran Kumar to act as mediators who
were present at scene of offence. Mo.5 do not
contain the identification slips attested by
panchas. The witness volunteers that the Mo.5
was already sent to FSL. Mo.4 do not contain the
identification slip attested by the panchas. Mo.4
even do not contain the registration number plate.
The witness volunteers that it was damaged in the
blast. I examined the owners of Mos.1 to 3.
Before my arrival to the scene of offence the NIA
police, other police including bomb squads were
present and they shifted injured. It is not true to
suggest that by that time reached scene of offence
there was electrical power disruption and as such
they brought the generators. The witness
volunteers that since there was no sufficient light
as such the generators were brought. On the next
day of the incident I deposited the property
before the Court as the incident happened on the
previous night. It is not mentioned specifically in
Ex.P34 check list that I handed over the two
45
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016panchanamas and rough sketch Ex.P27 to P29.
The witness volunteers that I handed over the
above said Ex.P27 to P29 which forms the part of
CD file. I did not mention specifically in Ex.P27
and Ex. P28 as to the name of the DTP center
where I got prepared Ex.P28 rough sketch. It is
true that Ex.P27 and P29 do not disclose that I
obtained signatures of the witnesses on the slips
and affixed the same on the MOs and sealed
them. It is not true to suggest that already by the
time I reached the scene the NIA police started
investigation and the MOs were taken away by
them.”
v) The aforesaid cross-examination was adopted by learned
counsel for accused Nos.3 to 6.
19. Perusal of record would reveal that as per the instructions
of the Commissioner of Police, Hyderabad City, Crime No.56 of
2013 registered for the offences punishable under Sections – 302,307
and 120-B IPC, Sections – 3 and 5 of the ES Act and Sections – 16,
17 and 18 of the UAP Act, of Malakpet Police Station was
transferred to SIT, Hyderabad, further investigation vide Ex.P37 –
Memo No.30/CP/Camp/2013, dated 23.2.2013 of Commissioner of
Police, Hyderabad City and accordingly the said Crime No.56 of
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
2013 was handed over to SIT ACP, DD, CCS, Hyderabad. PW.53 is
the relevant witness to depose with regard to the same.
i) PW.53 – Mr. K. Jaganath Reddy, the then ACP, during
chief-examination deposed as follows:
“I am working as Additional SP, ACB, AP-
Hyderabad since September, 2014 till date.
Previously I worked as ACP, CCS-Hyderabad
from November, 2011 to February, 2014. On 25-
02-2013 as per the instructions of DCP, DD,
CCS-Hyderabad City vide memo
No.DCP.DD/Camp/43/2013 dt.23-02-2013 under
Ex.P37, I have taken over the charge of
investigation in Cr.No.56/2013 registered at
Malakpet Police Station in Dilsukhnagar Blast
case. On the same day I addressed a letter to the
Director, Andhra Pradesh Police Academy for
providing services of T.Suresh Kumar (LW402),
Faculty member forensic science, AP Police
Academy to assist in bomb blast Investigation.
On the next day i.e., 26-02-2013 I visited the
scene along with the said T. Suresh Kumar,
LW403 Prakash Veer Head Constable and
incharge of clues team CCS Hyderabad. We
reached the scene which was secured and with
the help of GHMC officials we have seized
47
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016remaining relevant material objects under seizure
panchanama Ex.P38 (2 sheets) dt. 26-02-2013.
Mo.34 is the Pieces of 9V battery collected from
scene of crime (Marked as Q-1)Mo.35 is the two broken SIM cards, five
damaged 6.3 V batteries and two small metal
pieces collected from scene of crime (marked as
Q-2)Mo.36 is the silver colour metallic pieces
collected from scene of crime (marked as Q3)Mo.37 is the pieces of bag and Zip and cloth of
pant collected from scene of crime (marked as
Q4)Mo.38 is the Green colour coated metallic pieces
collected from scene of crime (marked as Q5)Mo.39 is the pieces of wires collected from scene
of crime (marked as Q6)Mo.40 is the iron balls big and small size
collected from scene of crime (marked as Q7)Mo.41 is the pieces of spokes of bicycle and
other nails collected from scene of crime (marked
as Q8)Mo.42 is the pieces of metal of bicycle found
collected from scene of crime (marked as Q9)
48
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016Mo.43 is the pieces of mudguard attached with
tyre of bicycle collected from scene of crime
(marked as Q10)Mo.44 is the cycle tyre & tube pieces and break
rubber collected from scene of crime (marked as
Q11) \(Mos.34 to 44 are opened in the Open Court in
the presence of both sides from the sealed box
sent by FSL) I have examined and recorded
statements of LW117 N.V.T.Pandu Ranga Rao.
LW118 Ch. Vasantha, LW119 Yadamma, LW120 Vittamma, LW121 Indira, LW124
Padma. I also examined LW402 T.Suresh Kumar,
LW403 Prakash Veer Head Constable and
incharge of clues team CCS Hyderabad.
I went to JC-Brothers shop situated at
Dilsukhnagar along with panchas K. Nanda
Kishore LW251, and M.Sai Kumar LW252 for
the purpose of seizing CCTV footage at the
relevant time of bomb blast.
I have also examined K.Ramulu LW204,
LW205 G. Venkateshwarlu RSI who is incharge
of guarding the secured scene. Under Ex.P39
seizure panchanama dt.26-02-2013, I have seized
Seagate hard disk (1 terra byte) Barracuda
No.2057491213—0259701 metal plated hard
disk of black colour affixing lable with
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
descriptive particulars mentioning ‘JC Bros’
Textile which is fitted secondary to LENOVO
CPU (DVR System) of the JC Bros SHOW
ROOM, Dilsukhnagar, Hyderabad which is
Mo.45. Mo.45 was sealed in the shop premises
with the signatures of the panchas and deposited
with the Magistrate on 16-03-2013 under Ex.P40.
I have also received the statements of the victims
who received injuries in the bomb blast recorded
by Inspectors U/Sec.161 Cr.P.C on 27-02-2013.
On 28-02-2013 I visited the Care Hospitals at
Nampally and Banjara Hills and examined
victims B.Hathiya Naik, M.Gangullamma,
M.Ranga Rao.
On 28-02-2013 I visited Shiva Electronics
beside Venkatadri Theater, Dilsukhnagar and
seized Mo.46 which is one Seagate Company
made “Hard Disk” of 1 TB S/N: 9VPGRL3R, ST
31000524AS, P/N:9YP154-204, Firmware: JC48,
Date Code 13135 Site Code: TK: The above
mentioned details are printed on a white sheet
and affixed to a steel plate and having
No.CO93820330A4. Ex.P41 is the seizure report
drafted on 28-02-2013 at 1700 hours for the
seizure of Mo.46. The said Mo.46 which was
sealed and secured at the shop was sent to the
Magistrate on 16-03-2013 under Ex.P42.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
On 01-03-2013 I have received the iron
pieces/splinters which were embedded in the
bodies of the injured who received blast injuries
and removed by the Doctors during the treatment.
Ex.P43 (1 sheet) which is now filed is the letter
addressed by the Administrator, Yashoda
Hospital sending the splinters removed from the
patients and also eye-tissue along with the
photographs of the sealed material objects.
Mo.47 is the Nail,
Mo.48 is the two white metals pieces,
Mo.49 is the nail metal pieces,
Mo.50 is the white metal pieces.
Mo.51 five metal piece and eye-tissue.
Mo.47 to 51 are the properties sealed and sent by
the hospital authorities as mentioned in Ex. P43. I
also received postmortem examination reports
and also injury certificates of the victims received
injuries.
On 06-03-2013 I forwarded Mos.34 to 44 to the
Director, FSL, Red Hills along with letter of
advise. Accordingly on 07-03-2013 | also sent
Mo.47 to 51 to FSL.
As per the instructions of the Government, the
investigation in this case was handed over to NIA
on 14-03-2013.”
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
ii) During cross-examination on behalf of accused Nos.2, 4
and 6 and adopted by accused Nos.3 and 5, this witness answered
thus:
“The question posed by the learned counsel for
the Accused is that I put it to you that:
Q: Mo.34 to 44 and Mo.47 to 51 are sent to FSL
directly?
Ans: It is true I sent Mo.34 to 44 and Mo.47 to 51
directly to the FSL.
It is true that I did not deposit Mo.34 to 44 and
Mo.47 to 51 before the concerned Court
immediately after seizure. I did not conduct any
further investigation after 14-03-2013. The
witness volunteers that he assisted NIA. It is true
that the date of dispatch as mentioned in Ex.P40,
42 & 43 is 16-03-2013. Another sheet which is
pinned to Ex.P42 is identical to Ex.P42. Both the
sheets are containing my original signatures, the
second sheet is identical to first sheet. It is Ex.D1.
Ex.D1 is dt. 28-02-2013 and it contains the initial
of VII ACMM before whom the property
mentioned therein was deposited on 25-03-2013
vide Pl No.37/13. The witness volunteers that he
deposited the property on 16-03-2013. It is true
by 14. 03-2013 all the properties were in my
custody. It is true the descriptive particulars of
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
the personnel of our office who carried the
property were not mentioned under Ex.P42 and
D1. I handed over all the 161 Cr.P.C. statements
and panchanamas recorded till 14-03-2013 to the
NIA police. It is not true to suggest that I did not
seize any material objects on 26-02-2013 or 28-
02-2013 and all the material objects 34 to 51 are
falsely planted in this case to fill up the lacuna in
the investigation done earlier. It is not true to
suggest that Ex.P38 to P43 are fabricated
documents which were created by me to fill up
the lacunas of the investigation. It is not true to
suggest that the panchas covered by Ex.P38 to 42
are all stock witnesses and their signatures were
taken in our SIT office.”
20. In the present case, on 21.02.2013 at 18:58:38 hrs and
18:58:44 hrs two consecutive bomb blasts took place at
Dilsukhnagar, Hyderabad, resulting in the death of 18 persons and
injuries to 131 persons. The first blast took place at 18:58:38 hrs near
107 Bus Stop, Dilsukhnagar in the limits of Malakpet Police Station,
Hyderabad City. In that regard, a case in Crime No.56 of 2013 was
registered for the offences punishable under Sections – 302, 307 and
120B of IPC and Sections – 3 and 5 of the ES Act.
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
i) The second bomb blast took place at 18:58:44 hrs near A-1
Mirchi Centre, Dilsukhnagar in the limits of Saroornagar Police
Station, Cyberabad City. Accordingly, Saroornagar Police Station,
Cyberabad, registered a case in Crime No.146 of 2013 for the
offences punishable under Sections – 324, 326, 307, 302, 124A,
153A and 201 read with 120B of IPC, Sections – 3 & 5 of the ES Act
and Sections – 16, 17 & 18 of the UAP Act. However, after adding
Sections – 16, 17 and 18 of the UAP Act in Crime No.56 of 2013, the
investigation was taken over by PW.53 on 25.02.2013, while PW.47
investigated Crime No.146 of 2013 of Saroornagar Police Station.
Having regard to the gravity of the cases, the Government of India
decided the cases to be investigated by the NIA. Accordingly, vide
MHA F.No. 11011/14/2013-IS-IV dated 13.03.2013, the
Government of India directed the NIA to investigate the above cases.
NIA had re- registered the cases as RC No.01/2013/NIA/HYD & RC
No. 02/2013/NIA/HYD on 14.03.2013 and the NIA Office,
Hyderabad, had investigated the cases. The said aspects were spoken
to by PWs.47 and 53 in their depositions as extracted above.
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
ii) Even learned trial Court discussed the issue of jurisdiction
of NIA and its power to add Sections under UAP Act, 1967 in
Paragraph Nos.601 to 603 of impugned judgment elaborately.
iii) With regard to the jurisdiction of NIA, learned counsel for
the accused contended that trial Court has no Jurisdiction as the NIA
Office is situated within the Jurisdiction of Criminal Courts,
Nampally. They have also filed Writ Petition No.27445 of 2016
before this Court on the said ground and the same was dismissed on
29.08.2016. As against the same, he preferred SLP and according to
him he also preferred review before the Apex Court. As stated
above, in the present case, one crime falls within the jurisdiction of
Malakpet Police Station, Hyderabad, and another crime falls within
the jurisdiction of Saroornagar Police Station, Rangareddy District
and, therefore, learned trial Court got jurisdiction. Moreover, this
Court designated learned trial Court. Further, it is clear that NIA is
not a police station and it has jurisdiction all over India in terms of
Section – 3 (2) of the NIA Act. There is no delay in lodging the
complaint as alleged by the accused.
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016
iv) Thus, NIA Officials were present at the scene of offence
along with Army Officails, Law and Order Police etc., as part of
Rescue Operation. There is no error in it. Accused cannot take
advantage of it.
v) As discussed above, considering the gravity of the offence
and the manner in which it was committed etc., the investigation was
entrusted t NIA in terms of NIA Act. There is no error in it.
Moreover, having failed in writ petition, SLP, review petitions,
accused cannot contend that the trial Court has no jurisdiction.
21. SCENE OF OCCURRENCE/BOMB BLASTS:
i) With regard to the first bomb blast, as stated above, it had
occurred on 21.02.2013 at 18:58:38 near 107 Bus Stop,
Dilsukhnagar. On receipt of Ex.P1 – complaint from PW.1 – Shaik
Jani Pasha, PW.38, the then Additional Inspector of Police, Malakpet
Police Station, registered the aforesaid Crime No.56 of 2013. In this
context, evidence of PW.1 and PW.38 is relevant.
ii) PW.1, during his chief-examination, deposed as under:
“I am working as RTC Driver at Dilsukhnagar
Bus Stand since 2002. On 21-02-2013 at 06-30
56
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016pm., I along with my friends came to the tea point
situated near Bus Stop situated opposite to our
Bus stand as usually. At around 06:50 pm., 1 was
hearing the evening prayers from the nearby
Masque. Meanwhile I heard a blasting sound
then I thought that the sound was of burst of bus
tyre or transformer and meanwhile I heard
another sound while I was rushing towards 107/V
bus stop. Where some buses including 107 Bus
stop. Then we found there were two bomb blasts
were at A1-Mirchi point and at 107 bus stop.
There I noticed the scattered dead bodies and the
people are running helter-skelter. Meanwhile
there were ambulances and we shifted the
deceased and injured through RTC buses to
various hospitals including Yashoda, Omni,
Kamala hospitals. At 08-10 1 went to Police
Station, Malakpet and at 08-30 pm., I lodged the
complaint it is Ex.P1. Ex.P1 complaint was
scribed by constable at my dictation and after
contents read over and explained to me in Telugu
I signed. From there I rushed to the Osmania
General Hospital where inquest was held over the
dead body of an unknown male Muslim person.
Ex.P2 is the inquest dt. 22-02-2013 at 0340 hours
marked subjected to objection as it does not
contain the signature of the witness. The said
inquest was conducted by SI Satyanarayana. I
was also present at the time of inquest held over
57
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016the unknown dead body of a Muslim persons held
by S.I Murthy on 22-02-2013 at 0300 hours.
Ex.P3 is the said inquest marked subjected to
objection as it does not contain the signature of
the witness. The above said two persons died due
to bomb blasts. I was examined by Police.”
iii) During cross-examination by accused No.2, this witness
admitted as follows:
“…It is true immediately after the incident the
passerby and all the people ran away. Nearly 25-
30 mins. took for the arrival of the Police….”
“…After the law and order police arrived to the
scene of offence, the NIA Police also came. The
Police wearing Orange Colour NIA jackets
collected all the remnants at the scene of offence.
The witness again says that after returning from
Police Station the NIA Police came. From 08-10
onwards I was there in Police Station for 40 mins
till 08-40 pm. I was examined by the Police at the
Malakpet Police Station which was recorded
under Ex.P1. After recording Ex.P1 I rushed to
Osmania General Hospital, three months
thereafter I was examined by local police of
Malakpet Police. On the same day the Inspector
of Malakpet PS was there till mid night at the
scene of offence. The entire area i.e., both the
scene of offences was cordoned and nobody was
58
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016allowed at the scenes of offences. The whole
night the NIA Police and local police collected
remnants at the scene of offences. While I was on
the other side of the road having tea I heard the
above said sounds. At that time due to the impact
of the blasts and smoke there was darkness. It is
not true to suggest that without knowing the
contents I signed in Ex.P1.”
iv) During cross-examination by accused No.3, this witness
answered thus:
“At the scene of offence at around 05-45 the
prayers are going on. I was having tea nearby
Renuka Yellamma Temple….”
v) PW.38 – the then Additional Inspector of Police, Malakpet
Police Station, during his chief-examination, deposed as under:
“I am presently working as Inspector of Police,
CID, Telangana, Hyderabad. Earlier I worked as
Additional-Inspector of Police, P.S. Malakpet.
On 21-02-2013 while I was discharging my
duties in the Malakpet P.S., at 07-00 to 07-10
pm., I heard a huge sound and immediately I
heard another huge sound and I came to know
through the Public that there was bomb blast and
there was lot of commotion at that time I also
heard the same through the scrolling in TV that
59
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016several persons died and several persons were
injured and shifted to various hospitals. Then
immediately our Inspector Satyanarayana LW411
rushed to Dilsukhnagar bus stop 72 near
Venkatadri theater. At that time I was attending
duties at my station Then our inspector
Satyanarayana sent statement of PW1 (Shaikjani
Pasha) through our constable Amjad Khan
Basing on the above said Ex.P1 statement and
instructions of our inspector Satyanarayana I
registered the same in Cr.No.56 of 2013 U/Sec.
302, 307 120-B IPC and Sections 3 and 5 of
Explosives Substances Act. 1908. Then
submitted the original FIR to the Court and
copies to the concerned officers. The FIR is Ex.
P23. Then I submitted the CD file to the
Inspector Satyanarayana who was camped at near
72 bus stop Dilsukhnagar opposite Venkatadri
Theater.”
vi) During cross-examination on behalf of accused No.2, this
witness answered thus:
“At the time of the blast I was in the Police
Station and I heard the sounds. Between 07-00 to
11-00 pm., I was in Police Station on that day. It
is true the complainant PW1 did not come to
Police Station personally and 09-30 pm., through
one PC No.4209. After 11-00 pm., I visited the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016scene of offence, I was at the scene of offence for
a period 2 hours, thereafter I used to go to Police
Station and come back. It is true our police and
bomb squads and other higher officials visited the
scene of offence and the police were collecting
the remnants…..
“… It is true as seen from the photograph
shown by the defence counsel from the file of
this case, it shows some persons wearing NIA
jackets at the scene of offence. Now the
photograph is marked as Ex.P24. I did not
examine the constable who brought Ex.P1
complaint to me and the constable through whom
I dispatched the FIR to the Court.”
vii) With regard to second bomb blast, as stated above, it had
occurred at 18:58:44 hours at A-1 Mirchi Center, Dilsukhnagar. On
receipt of Ex.P4 – complaint from PW.2, Crime No.146 of 2013 was
registered by PW.40, the Sub-Inspector of Police, Saroornagar Police
Station. In this regard, evidence of PWs.2 and 40 are relevant.
viii) PW.2, in his chief-examination deposed as under:
“I own a shop at Dilsuknagar in the name and
style of Anand Music Centre and Mobile Shop.
On 21-02-2013 at around 07-00 pm., myself and
my friends are having tea at other side of the road
61
KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016opposite to 107 bus stop at around 100 mts. Then
suddenly I heard a big and within seconds I heard
another big sound. Then the People are running
in panic. Then I rushed to the A1-Mirchi center
and we shifted the deceased and injured in
ambulances and buses and also autos to various
hospital including Omini and Kamala Hospitals
and the above said sounds emanated out of bomb
blasts. Then I lodged a complaint with the
Saroornagar Police. Since my hands were dirty
due to helping the injured in shifting to the
hospitals, I dictated to the constable of
Saroornagar P.S. to draft the complaint. It is
Ex.P4. I gone through the contents of the
complaint which were written to my narration
and signed.”
ix) During cross-examination, he answered thus:
“….. I remained at the spot from 0700 pm., to
0800 pm., on that day. Within 10 mins the local
police reached the scenes of offence. Ten mins
thereafter bomb squad reached the scenes of
offence. Ex.P4 was drafted at the police station of
Saroornagar at my dictation. It is not true to
suggest that that only at the influence of the
police I signed in Ex.P4….”
x) PW.40, the then Sub-Inspector of Police, Saroornagar
Police Station, in his chief-examination, deposed as under:
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016“I am working as Inspector of Police,
Secunderabad Railway Police Station. Previously
I worked as Sub-Inspector of Police, Saroornagar
Police Station from October, 2009 to October,
2013. While I was on duty on 21-02-2013 at 07-
00 pm., to 07-10 pm., I heard two sounds one
after the another like bomb blast. Immediately
our Inspector Narasimha Rao and all our police
personnel present in the police station rushed to
the scene of offence. Then myself and other
police personnel were present at the scene of
offence. At around 08-00 pm., PW2 (G.Anand)
and LW14 (A.Srikrishna) came to the police
station and PW2 narrated the incident to our
constable and the said constable drafted the
complaint which is Ex.P4 and he presented the
said complaint to me. Basing on the said
complaint registered FIR U/Sec 324, 326, 302,
124-A, 153-A, 201 r/w.120-B IPC Section 3 and
5 of Explosive Substances Act, 1908, Section 16,
17, 18 of Unlawful Activities Prevention Act,
1967. The FIR is Ex.P26. Then submitted the
original FIR through PC NO.2120 then I
examined PW2 and LW14 and recorded their 161
Cr.P.C. statements then I handed over the CD file
to ACP Venkateshwar Rao. On 26-02-2013 I
recorded the 161 Cr.P.C statements of Smt.
Maddi Pentamma (LW122), LW123
(D.Lakshmi). On 15-03-2013 I recorded the 161
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(LW165).”
xi) During cross-examination, this witness answered thus:
“I dispatched the FIR within two hours after
registration. It is true that in FIR Ex.P26 the
column No.3 (c) is empty with regard to General
dairy information. The witness volunteers that the
GD entry was made but not mentioned in Ex.P26
FIR.”
22. CONSPIRACY, INVOLVEMENT, PARTICIPATION
AND EXECUTION:
i) As discussed above, the first charge sheet was filed against
accused Nos.2 and A5 on 14.03.2014. Thereafter, first
supplementary charge was filed against accused Nos.1, 3 and 4 on
15.09.2014 and second supplementary charge sheet was filed against
accused No.6 on 06.06.2015. Investigation discloses that IM
operatives, accused Nos.1 to 5 have entered into a criminal
conspiracy for waging war against the Government of India. As part
of the same, they have decided to commit terrorist attacks to kill
innocent people, to disrupt the security of India and to create terror
and insecurity feelings in the minds of the common people, which
are acts prejudicial to the integrity and sovereignty of India. With a
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bomb explosions in India. The IM is receiving financial and material
assistance from the Inter Services Intelligence (ISI), backed by the
Government of Pakistan, which is providing shelter to several
absconding senior operatives of the IM in Karachi and in other
places in Pakistan. The role of several operatives of the IM in
planning and commission of many terrorist incidents in different
parts of India also has been revealed. In pursuance to the conspiracy,
as per the direction and motivation of accused No.1, accused Nos.2
and 3 came to India via Nepal in the month of September 2010 after
receiving Terror Training in Pakistan. In Nepal, accused No.4
received both of them. Thereafter, accused Nos.2 to 4 reached
Samastipur in Bihar, where accused No.5 was residing in his hideout.
Subsequently, they had committed different terrorist attacks in Delhi,
Varanasi, Bombay and Pune. Thereafter all of them were residing in
India and Nepal by taking hideouts at different places.
ii) In the month of September 2012, as per the directions of
accused No.1, accused Nos.2 and 3 moved from Belgaum to
Mangalore. In Mangalore, accused No.2 searched for a rented house
in the outskirts of Mangalore by staying in different lodges. He found
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a suitable flat in an apartment building near Hampankatta by name
“Zephyr heights” at Attavar Road, Mangalore. Accused No.2 joined
in the Flat in November, 2012 along with accused No.3. During
their stay there, both accused Nos.2 and 3 used to contact accused
No.1 through online chatting from the internet centres namely Falnir
Cyber point, Angel Cyber Gallery and Cyber Fast situated at
Mangalore. Accused No.2 always used proxy servers for chatting by
using required software or by manual setting. The software used are
Freegate’, ‘Security kiss (paid proxy server) and ‘ultra surf. Accused
Nos.2 and 3 were staying in Mangalore, accused No.1 had sent Rs.
1,00,000/- (Rupees One Lakh Only) through a hawala dealer and the
same was delivered by LW-222 to accused No.2. During
investigation it was revealed that accused No.2 is the person who
received the cash. The money sent by accused No.1 through WUMT
was received by accused No.3 using fake identity from Supama
Forex Pvt. Ltd., a WUMT Outlet, situated at Hampankatta Circle. In
the same manner, accused No.3 had received money through VKC
Credit and Forex Services Ltd, Ganesh Mahal Complex, first floor,
K.S. Rao Road, Hampankatta, Mangalore and from CS Tours and
Travels. While receiving the amount from Supama Forex Pvt. Ltd,
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accused No.2 was also present along with accused No.3. On
3.11.2012, accused No.2 along with accused No.3 visited M/s.
Supama Forex Ltd and received an amount of Rs.25,006.68ps.
Accused No.3 received Rs.25,000/- each from VKC Forex Ltd, on
26.2.2013, on 20.03.2013 and on 12.04.2013 respectively. Accused
No.3 received Rs. 25,000/- each from CS Tours and Travels on
13.07.2013 and on 29.08.2013 and also received Rs.16,364/- from
CS Tours and Travels on 08.08.2013.
iii) During the month of January, 2013, accused No.1
instructed accused No.2 to purchase a new mobile phone to contact
the person who delivers the explosives and the explosives would be
delivered in Mangalore and accused No.2 was directed to carry out
blasts in Hyderabad along with accused Nos.3 and 4. Accordingly,
accused No.3 purchased a mobile phone and SIM by using fake
identity proof and photo. Accused No.1 instructed A-2 to switch on
that mobile on a particular day to receive information about the
delivery of the explosive from that unknown person, who delivers
the explosives. Accused No.2 received explosive material from an
unknown person in a golden colour trolley bag. The material was
delivered near Unity Health Centre, Mangalore. After receiving pro-
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explosives, accused No.2 took the explosive material to their rented
flat in Zephyr Heights Apartments. They checked the trolley bag and
found to be containing 300 tubes of semi-solid pinkish coloured
ANFO of 100 grams each, and 50 numbers of detonators. As per the
direction of accused No.1, accused No.4 came to Hyderabad in the
last week of January 2013 and searched for the shelter place near
Abdullapurmet. On 6.2.2013, he met PW.54 and took the house on
rent. On 07.02.2013, he had occupied the house. It is reflected in the
chat communication between accused Nos.1 and 5.
iv) In this regard, the evidence of PW.54 is relevant and the
same is as under:
“I am a Homeo Physician by profession. I am
residing at Abdullapurmet for the past 20 years.
Our relative one Brahmaiah constructed a house
in Abdullapurmet Village. After construction of
the said house the said Brahmaiah did not occupy
the said house as the daughter of the said
Brahmaiah was about to deliver. So the said
Brahmaiah asked me to show the said house to
the prospective tenants and handed over the keys
of the house to me. On one day in the first week
of February, 2013 one student asked me to show
the said house for tenancy and also informed me
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the keys to the said person. The said student told
me that the said Brahmaiah would come and talk
to him on the next day. The said student is
identified by the witness as the Accused No.4
Mohd. Taseen Akhtar @ Hassan @ Monu (The
accused steed/sat in their own sequence). On the
day of bomb blast in the evening I came to know
that the A4 handed over the keys to P.
Venkateshwarlu (my husband). / was examined
by Police and I also gave my statement before
concerned Magistrate and I also participated in TI
proceedings. I also identified the accused in the
jail. Ex. P44 is the signature of the witness (at
page No.3) during TIP proceedings conducted on
28-06-2014 at Central Prison, Cherlapally.”
v) PW.55 is the husband of PW.54. He identified accused
No.2 during TIP and deposed with regard to the statement recorded
under Section – 164 of Cr.P.C. PW.60, neighbor to the house of
PW.54 and 55 deposed with regard to identifying accused No.2
during TIP. PW.62, neighbour and resides in adjoining the aforesaid
house of PWs.54 and 55, deposed with regard to his interaction with
accused No.2 and identifying him during TIP.
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vi) On the instructions of accused No.1, accused No.2 had
booked his ticket in the name of one ‘Danish’ through VRL travel
agency, Mangalore and left for Hyderabad on 09.02.2013 at about 2
P.M. and reached Hyderabad on next day around 8 AM. Accused
No.4 had taken accused No.2 to the shelter place situated at
Abdullapurmet near Ramoji Film City. The fact of contacting
accused No.4 by accused No.2 has been reflected in the CDRs of the
phones available at the PCOs and the mobile phone used by accused
No.4. Thereafter, accused No.2 returned to Mangalore. After staying
in Hyderabad for three (3) days, accused No.2 left for Mangalore by
VRL travels on 12th February by purchasing the ticket in the name
of ‘Danish’. He reached Mangalore on 13th morning. On
15.02.2013, he and accused No.3 carried the explosive material from
Mangalore in VRL travels and reached Hyderabad on 16th February.
Two tickets were booked in the name of ‘ANI’ for this travel.
vii) PW.113, Manager of VRL Travels, deposed with regard
to handing over the travel details of the buses ply from Hyderabad to
Bangalore and vice versa. From there, both the accused boarded a
City bus, reached Abdullapurmet, and kept the explosive materials at
the shelter place rented by accused No.4 As per the instruction given
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by accused No.1 through chat, accused Nos.2 to 4 had conducted
reconnaissance in the areas of Malakpet, Abids, Koti, Begum Bazar
and Dilsukhnagar. The fact of reconnaissance by accused Nos.2 to 4
in the above areas have been revealed through the tower location of
mobile phone bearing No.9911772066 used by accused No.4
chatting with accused No.1. Within two days of their reccee, they
decided to plant the bombs in Dilsukhnagar in the evening around
7.00 P.M. This place and time were selected as the Hindu
Population in that area is more and large numbers of students used to
gather there at that time.
viii) Perusal of record would reveal that 2 to 3 days before the
blast, accused Nos.2 to 4 had conducted a test blast at a deserted
place on a hill, around 5 to 6 kms. away from Abdullapurmet. Based
on accused No.2 on 28.09.2013, remnants of the detonators were
seized from the test blast site. On 20.2.2013 evening, accused Nos.2
to 4 together went to Sri Mahalakshmi Fancy Steel Shop, L.B. Nagar
and purchased two 7 ½ litre capacity pressure cookers for making
IED by filling the explosives therein. In this regard, the prosecution
examined the owner of the said shop as PW.58 and he deposed with
regard to purchase of the said items. In order to plant the bomb,
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accused Nos.2 and 4 had purchased an old bicycle for Rs.1,400/-
from one cycle repairer, PW.57, found on the walk way near a
mazaar, situated in between Yasoda Hospital and TV Tower in
Hyderabad, on 20.02.2013 at about 2.00 P.M. They had taken the
cycle to Malakpet Railway Station parking stand and parked there.
PW.66, who runs parking lot maintenance for the last 20 years at
various Railway stations, Parks and Bus Stations, deposed about
maintenance of Parking Lot at Malakpet Railway Station.
ix) Then they went to Lakadi-ka-pul at about 4.00 P.M. in an
auto-rickshaw and booked return tickets for accused Nos.3 and 2 in
the name of ‘Nabeel’, through PW.89, to go to Bangalore on
21.02.2013 in SL travels. PW.89 is the booking clerk in the said SL
Travels, Lakdikapul deposed the same.
x) Thereafter, they have purchased one-meter plastic sheet
from a shop near the Chadarghat Bridge for the purpose of packing
and filling the explosives inside the pressure cooker. On the next day
i.e., on 21.02.2013 morning, accused No.2 and Tahseen prepared
cooker carrying damas 17.15 estab vacat caret was accused No.4 left
for purchasing another cycle from Thursday market of the leaving
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accused No.3 at the shelter place to complete the preparation of
IEDs. From there, accused Nos.2 and 4 went to Malakpet railway
station cycle stand on the same cycle and parked it in the same cycle
stand, where they parked the first cycle on the previous day. PW.67
deposed about the same. PW.61, Hamali, deposed about selling of
his old bicycle to one Mr. Ismail, who is running a small puncture
shop situated near Darga on the footpath of Malakpet Main Road
near Yashoda Hospital.
xi) Perusal of record would reveal that on 21.02.2013 at about
4 P.M, while accused Nos.2 and 4 were waiting outside the shelter
place in Abdullapurmet, accused No.3 prepared IED by setting the
time for explosion as 7.00 P.M. After completing the preparation of
IEDs, the remaining items i.e., two digital watches, cooker handles
and whistles of cooker and trolley bag used for carrying explosives
were thrown in two different nearby places after damaging them. On
21.02.2013 at about 5.00 P.M., accused No.4 vacated the house.
They reached L.B. Nagar Cross Road in an auto- rickshaw carrying
the IEDs. From there, they engaged an auto-rickshaw and went to
the cycle parking stand situated at Malakpet Railway Station. While
accused No.3 was waiting on the road with the IEDs and their
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baggage, accused Nos.2 and 4 went inside the parking place and
returned with the bicycles. Accused No.2 directed both accused
Nos.3 and 4 to proceed to the blast spots. Accused No.2 waited near
the place of occurrence until both the other accused complete their
tasks. Thereafter, accused No.3 met accused No. 2 after placing the
bicycle at 107 Bus Stop, Dilsukhnagar, and accused No.4 left the
place directly after placing the bicycle mounted with the bomb at
A1-Mirchi Centre. The CCTV Footages available at J.C. Brothers
Cloth Shop and Siva Electronics situated near 107-Bus Stop show
that one person drawing a bicycle with a white box carriage and
another person riding another bicycle with another white box
carriage. The IEDs so planted by accused Nos.2 to 4 exploded at
18:58:38 hrs and 18:58:44 hrs on 21.02.2013. This incident created
panic and terror amongst the public. The Incidents resulted in the
death of 18 persons including unborn child in the womb of its
mother, while 131 people were sustained both grievous and minor
injuries. The injured as well as the deceased were immediately taken
to different hospitals in Hyderabad. 107-Bus Stop and A-1 Mirchi
Centre were severely damaged apart from the damages caused to the
other public and private properties in the surrounding area.
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xii) As discussed above, accused No.6 also in active e
connivance with the other accused committed the aforesaid offences.
In fact, he has purchased DELL laptop on the instructions of accused
No.1 in the year 2010 itself at Mumbai.
xiii) During Chat of accused No.5 with accused No.1 on
20.12.2012, accused No.5 asked accused No.1 about the status of the
job i.e., Hyderabad Blasts, for which he replied that the explosive
had yet not been arranged and he was trying for its arrangement. He
informed that the police were badly looking for accused Nos.2 and 3.
Since accused No.5 was not there with them, they had to tread very
cautiously. Accused No.5 then advised accused No.1 to do 2-3 blasts
at a new place and that thereafter they should leave the location and
go far away. Accused No.1 informed accused No.5 that they were at
a new place and if everything went on well then they could stay at
that location for a long time. Suggesting about the design of the IEDs
to be used, accused No.5 advised him to make thin boat shaped IEDs
for the blast of 1 kg. explosive each which could be carried easily
even by tying on the stomach. But, accused No.1 told that they were
planning for big IEDs. Accused No.5 told him that such small IEDs
will have more impact. Then, accused No.5 asked accused No. to try
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Picric Acid for making bombs. But, accused No.1 said that he was
trying for the basic explosive generally used since it was effective.
Accused No.5 told them to go for Picric acid, if the gelatin was not
obtained since gelatin was difficult to procure and also got spoilt
with time.
xiv) In view of the above and the evidence of the aforesaid
witnesses would clearly establish that accused committed the
aforesaid offences. As stated above, PW.1 and PW.2 are the
complainants, while PWs.3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 33, 34 and 39 are not only eye-witnesses to the
incidents, but also they sustained injuries in the said incidents. They
have categorically deposed with regard to the incident occurred. The
accused did not elicit anything contra from them. PW.7 deposed
with regard to receipt of injuries to his left thigh. Evidence of eye-
witness stands on a higher footing and there is no reason for them to
depose falsely. PW.21 deposed with regard to the injuries received
by his daughter and taking treatment in Yashoda Hospital and also
deposed with regard to death of his grandson (foetus). During cross-
examination, nothing contra was elicited by learned counsel for
accused.
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23. INQUESTS:
i) PW.22 is the elder brother of Asghar Ali, paternal uncle of
deceased No.2, deposed about inquest conducted on 22.02.2013.
PW.23 is the brother-in-law of deceased No.3 deposed about inquest
conducted on 22.02.2013; PW.24, son of deceased No.6 deposed
regarding inquest on 22.02.2013; PW.25, brother of deceased No.8,
deposed regarding inquest conducted on 22.02.2013; PW.26 is the
father of deceased No.9 deposed regarding inquest conducted on
22.02.2013; PW.27, brother of deceased No.10 deposed about
inquest conducted on 22.02.2013; PW.28 is the father of deceased
No.11 deposed regarding inquest held on 22.02.2013; PW.29, father
of deceased No.14 deposed with regard to inquest conducted on
22.02.2013; PW.30, father of deceased No.16 deposed witnessing
inquest held on 22.02.2013; PW.31 is the son-in-law of deceased
No.4 deposed about his presence while conducting inquest on D-4.
PW.32 deposed with regard to loss of his younger brother. PW.34
deposed with regard to the injuries sustained by his friend, Mr. S.
Anand Kumar in the bomb blast and thereafter his death occurred.
PW.35 deposed with regard to death of his cousin, Mr. B. Lakshmi
Srinivas Reddy in the said bomb blasts and identifying the dead
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body. PW.36 deposed with regard to death of Chogaram in the bomb
blast near A1-Mirchi Centre and identifying the dead body at
Osmania General Hospital. PW.39 deposed with regard to receipt of
information about death of his cousin, Vadda Vijay Kumar and his
identifying the dead body in Osmania General Hospital. Accused
declined to cross-examine these witnesses. This itself provide the
bomb blast as well as injuries/deaths occurred in it.
ii) Thus, the evidence of PWs.1, 22 to 30, 32 to 37, 39, 41 to
46, 48 and 50 to 52 would prove the inquest reports of the deceased
persons who succumbed to the injuries caused on account of twin
explosions at Dilsukhnagar on 21.02.2013. The said inquest reports
of 18 deceased persons including an unborn child were marked as
Exs.P2, 3, 5, 7 to 10, 12 to 22 and 25. Therefore, by virtue of
examination of the aforesaid witnesses who identified the deceased
and the cause of deaths proved the incident of bomb blasts.
24. As stated above, PWs.56 and 57 deposed with regard to
sale of old bicycle at Jumerath Bazar to accused Nos.2 and 3 on
21.02.2013 for Rs.1500/- and identifying them during TIP. PW.64
deposed about the stay of accused Nos.2 and 3 in his house on rent at
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Mangalore and seizure of Rs.50,000/- and identification of accused
No.4. PW.65 deposed with regard to identification of accused Nos.2
and 3 and their visiting for food to New Jain’s Restaurant. PW.69
deposed with regard to their visit to Falnir Cyber Café for chatting
and seizure of six (06) hard disks and identification of accused No.2
in TIP. PW.71 was examined with regard to accused Nos.2 and 3
visiting Angel Cyber Gallery for chatting and seizure of seven (07)
hard disks and also identification of accused No.2 during TIP.
During cross-examination of these witnesses, nothing contra was
elicited by learned counsel for accused.
25. As stated above, PW.143, TV9 Senior Reporter, deposed
with regard to his interviewing PW.59 at the scene of crime
immediately after the offence and giving video clippings of the
broadcast video and issuing Certificate under Section – 65B of the
Evidence Act. Nothing contra was elicited by learned counsel for
accused.
26. MEDICAL REPORTS:
i) With regard to medical reports, PWs.95, 96, 100, 103 to
107, 144 to 146 and 150 to 153 are the Resident Medical Officers in
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sustained by the aforesaid injured persons in the aforesaid bomb
blasts and bringing them to their respective hospitals. They further
deposed with regard to the treatment given to them for the injuries
suffered by the aforesaid injured persons and issuance of Medical
Certificates. Nothing contra was elicited in their cross-examination
by learned counsel for accused. Thus, their evidence also proves the
impact of bomb blasts, immediate deaths and the injuries and also
involvement of IED bomb blasts.
ii) Whereas, PWs.85 to 87 and others are the Assistant
Professors in Osmania Government Medical College deposed with
regard to conducting postmortems on some of the deceased persons
vide Exs.P122 to 139. During cross-examination of these witnesses,
nothing contra was elicited by learned counsel for the accused. The
medical reports including Exs.P108 to 139 proves the prosecution’s
case. The postmortem reports of the deceased individuals, such as
Exs.P122 to 135 would reveal that the cause of death was multiple
blast injuries. Further, the MLC records of the injured individuals,
Exs.P108 to 121 confirm blast injuries sustained by them. The
absence of specific mentions of brownish, yellowish, or whitish
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injuries caused by the blasts. Thus, the medical evidence consistently
proves the injuries sustained by the aforesaid persons in the bomb
blasts.
iii) In the legal proceedings with regard to Dilsukhnagar bomb
blasts on 21.02.2013, a comprehensive examination of medical
professionals’ testimonies would support the case of prosecution that
the injuries and deaths were a consequence of an Improvised
Explosive Device (IED) bomb blast. As stated above, the statements
from various Resident Medical Officers and Specialists highlight the
severity and nature of injuries sustained by the victims.
iv) PW84 – Dr. K. Satyanarayana Reddy and PW.88 – G.
Raghavendra, both Resident Medical Officers at Prominent
Hospitals, underscored the grave injuries, including blast injuries,
penetrating wounds, fractures, and amputations. The same was
corroborated with the evidence of Dr. Md. Rafi, Dr. D. Ajay, PW100
– Dr. P. Murali Manohar and PW101 – Dr. N. Yadagiri. Their
evidence consistently proves the injuries caused in a bomb blast,
with a focus on blast injuries, lacerations, and the removal of foreign
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administrative roles, but not disputed the connection between injuries
and a bomb blast.
v) Furthermore, PWs.103 to PW145 also deposed with regard
to treating physicians from various hospitals, such as Sapthagiri
Hospitals, Nikhil Hospital, Owaisi Hospital, and others, consistently
testified to blast injuries in patients. Thus, the entire testimony of
Medical Officers establishes that the injuries and deaths caused in the
Dilsukhnagar bomb blasts were a direct result of an IED bomb blast.
Therefore, the medical evidence available on record supports the
case of prosecution that the injuries sustained by the patients were
caused by IED bomb blast.
vi) It is relevant to note that learned counsel appearing for the
accused did not dispute the incidents, injuries deaths etc. Therefore,
their contention that accused are not responsible for the same, and
accused never committed any offence and prosecution failed to prove
role played by the accused in commission of the offence by
producing cogent evidence beyond reasonable doubt cannot be
accepted.
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27. SCENE OF OFFENCE AND OBSERVATION:
i) With regard to scene of crime and observation, perusal of
record would reveal that Ex.P28 is the scene of crime, observation-
cum-seizure report dated 21.02.2013. PW.76 deposed that on
21.02.2013, while he was present at the Dilsukhnagar in the evening
hours after the bomb blasts and noticed the dead bodies and also
injured persons. Nearly 20-30 persons shifted the injured to the
hospital including himself. Then, the police cordoned the scene of
offence and did not allow the outsiders to the scene of offence. He
noticed a burnt cycle and scooter and some two wheelers at the scene
of offence. The police seized MOs.1 to 5 and other material objects
at the scene. He acted as panchayatdar for the scene of crime
observation-cum-seizure report vide Ex.P27. MO.53 is the damaged
piece of cycle tube and tyre. MO.54 is the damaged cycle stand.
MO.55 is the damaged cycle fork and spring. MO.56 is the damaged
cycle rim and rear wheel chain, MO.57 is the rear cycle mudguard,
MO.58 is the damaged piece of cycle seat and seat cover, MO.59
damaged cycle stand locking part, MO.60 damaged cycle chain,
MO.61 cycle spare parts, MO.62 cycle spring and spring base,
MO.63 is the detonator wires, MO.64 is the brown colour shirt
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piece, MO.65 is the damaged steel glass, MO.66 is the blood stained
earth 1st blood pool, MO.67 is the blood stained earth from 2nd
blood pool, MO.68 is the controlled earth related to Sl.No.15, MO.69
is the controlled earth related to Sl.No.16, MO.70 is the swabs
collected from the explosion spot (scene of offence), MO.71 is the
aluminium splinters collected from the scene, MO.72 is the damaged
cycle spare parts, MO.73 is the pieces of cloth, MO.74 is the metallic
pieces, MO.75 is the blood stained earth from 3rd blood pool, MO.76
is the blood stained earth from 4th blood pool, MO.77 is the
controlled earth related to Sl.No.4, MO.78 is the controlled earth
related to Sl.No.5, MO.79 is the swabs collected from scene, MO.80
is the swabs collected from the scooty, MO.81 is the flexi pieces,
MO.82 is the damaged bicycle handle grip, MO.83 is the swabs and
material objects collected from the carter, MO.84 is the damaged
scooter doom (scooter side cover). He signed on all the slips affixed
to MOs.53 to 84. The seizures were conducted in his presence and
also in the presence of other panchayathdars. The panchanama was
prepared at DTP centre at Dilsukhnagar. He also signed on Ex. P28
sketch. Ex.P28 is the rouch-sketch prepared by the Investigating
Officer in the presence of two panchas.
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28. SEIZURE PANCHANAMAS:
i) With regard to seizure panchanama dated 26.02.2013,
Ex.P29 is another scene of offence panchanama drafted on
26.02.2013 in the presence of both panchas, who are VROs of
Jalpally Village and Mamidipally Village nearby the scene of
offence, which reads as the Police officer with the assistance of the
Clues team has earmarked objects and seized the following items
from the scene of offence as material evidence, relating to the
explosion. 01. One burnt and damaged motor cycle visible as
registered No.AP 29 AV 9548, one burnt and damaged motor cycle
visible as registered No.AP 9 AC 7—-, having engine number
99F10E19917, one burnt and damaged motor cycle number not
visible and having chassis number DUFBLF29443 and engine
number DUMBLF00853, one partly damaged scooter visible
registration number as AP 11 L 856, MO.85 is the burnt pieces of
pedal of cycle, MO.86 is the pieces of electronics, MO.87 is the
cycle parts, MO.88 is the pieces cycle tyres and tubes, MO.89 is the
pieces of cell phone and mother board, MO.90 is the pieces of 9V
battery, MO.91 is the pieces of white metal, MO.92 is the bag with
number, MO.93 is the break rubber of cycle, MO.94 is the pieces of
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is the pieces of metals found in scene of offence, MO.97 is the pieces
of molten metallic parts and MO.98 is the pieces of cloths.
ii) With regard to Ex. P35 – scene of offence observation-
cum-seizure panchanama, dated 21.02.2013 at backside of 72 Bus
Stop, perusal of record would reveal that Ex. P35 is the said scene of
offence observation-cum-seizure panchanama conducted by PW.49
at 2045 hours on 21.02.2013 at backside of 72 bus stop where bomb
exploded on a bicycle. MO.6 is the damaged bicycle found remained
with front wheel, handle engraved as K.W., middle portion of frame
engraved as ZNO6913. MO.7 is the 5 (Five) pieces of cloth, having
blue, Green, Black, and white stripes, collected from scene of
offence. MO.8 is the seven iron Nails collected from the scene of
offence. MO.9 is the 41 (Forty-one) Twisted Metal pieces, collected
from scene of offence, MO.10 is the 1 (one) 9 volts Battery
recovered from top of the bus shed, make Hi-watt, MO.11 is the 1
(one) 9 volts battery recovered from the scene of offence, make
Thought, MO.12 is the swabs collected on the cycle frame at the
scene of offence. MO.13 is the semi burned ploythene sheet,
collected from the crater. MO.14 is the nuts fitted with bolts bind
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with copper wire are collected near the stairs of complex exactly
back side blasted bus stop. MO.29 is the control swab, Mo.30 is the
control earth collected from the scene of offence, Mo.31 is the blood-
stained earth collected from the scene of offence, MO.32 is the sharp
needle like objects collected from crater, MO.33 is the swabs
collected from roof of bus shelter, MOs.7 to 34 were produced in a
sealed suitcase sent by the FSL. MO.6 also contains the slips put up
by the FSL and the investigation authorities. With regard to Ex. P36
rough sketch of scene of offence was also drawn at the scene in the
presence of panchas.
iii) Thus, the prosecution has proved the said seizure
panchanams beyond reasonable doubt and accused did not elicit from
the aforesaid witnesses during cross-examination to disbelieve the
same. As discussed above, in a matter like this, minor contradictions
and omissions can be ignored. Accused cannot take advantage of the
same.
29. OFFICIALS OF REVENUE DEPARTMENT AS
PANCHAS:
i) Learned counsel for the appellants contended that the
Investigating Officers called the Officials of the Revenue
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which is in violation of the procedure laid down under Cr.P.C.
ii) In the light of the above, it is relevant to note that Section –
100 of Cr.P.C., deals with ‘persons in charge of closed place to allow
search’ and the same is extracted as under:
“100. Persons in charge of closed place to allow search.
(1) Whenever any place liable to search or inspection
under this Chapter is closed, any person residing
in, or being in charge of, such place, shall, on
demand of the officer or other person executing the
warrant, and on production of the warrant, allow
him free ingress thereto, and afford all reasonable
facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the
officer or other persons executing the warrant may
proceed in the manner provided by sub-section (2)
of section 47.
(3) Where any person in or about such place is
reasonably suspected of concealing about his
person any article for which search should be
made, such person may be searched and if such
person is a woman, the search shall be made by
another woman with strict regard to decency.
(4) Before making a search under this Chapter, the
officer or other person about to make it shall call
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inhabitants of the locality in which the place to be
searched is situate or of any other locality if no
such inhabitant of the said locality is available or is
willing to be a witness to the search, to attend and
witness the search and may issue an order in
writing to them or any of them so to do.
(5) The search shall be made in their presence, and a
list of all things seized in the course of such search
and of the places in which they are respectively
found shall be prepared by such officer or other
person and signed by such witnesses; but no person
witnessing a search under this section shall be
required to attend the Court as a witness of the
search unless specially summoned by it.
(6) The occupant of the place searched, or some
person in his behalf, shall, in every instance be
permitted to attend during the search, and a copy of
the list prepared under this section, signed by the
said witnesses, shall be delivered to such occupant
or person.
(7) When any person is searched under sub-section (3),
a list of all things taken possession of shall be
prepared, and a copy thereof shall be delivered to
such person.
(8) Any person who, without reasonable cause, refuses
or neglects to attend and witness a search under
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in writing delivered or tendered to him, shall be
deemed to have committed an offence under
section 187 of the Indian Penal Code (45 of
1860).”
iii) In Rajesh v. The State of Madhya Pradesh19, the Apex
Court held as under:
“It was pointed out that a panchnama can be used
as corroborative evidence in the Court
when (2013) 13 SCC 1 the respectable person
who is a witness thereto gives evidence in the
Court of law under Section 157 of the Evidence
Act. This Court noted that Section 100 (4) to
Section 100 (8) Cr.P.C. stipulate the procedure
with regard to search in the presence of two or
more respectable and independent persons,
preferably from the same locality, so as to build
confidence and a feeling of safety and security
amongst the public. The following mandatory
conditions were culled out from Section 100
Cr.P.C. for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of
officer (Inspecting officer) and panch witnesses
should be taken to create confidence in the mind
of court as nothing is implanted and true search
has been made and things seized were found real.
19
. (2023) 15 SCC 521
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(b) Search proceedings should be recorded by the
I.O. or some other person under the supervision
of the panch witnesses.
(c) All the proceedings of the search should be
recorded very clearly stating the identity of the
place to be searched, all the spaces which are
searched and descriptions of all the articles
seized, and also, if any sample has been drawn
for analysis purpose that should also be stated
clearly in the Panchanama.
(d) The I.O. can take the assistance of his
subordinates for search of places.
If any superior officers are present, they should
also sign the Panchanama after the signature of
the main I.O.
(e) Place, Name of the police station, Officer rank
(I.O.), full particulars of panch witnesses and the
time of commencing and ending must be
mentioned in the Panchnama.
(f) The panchnama should be attested by the
panch witnesses as well as by the concerned IO.
(g) Any overwriting, corrections, and errors in
the Panchnama should be attested by the
witnesses.
(h) If a search is conducted without warrant of
court Under Section 165 of the Code, the I.O.
must record reasons and a search memo should
be issued. It was held that a panchnama would be
inadmissible in a Court of law if it is recorded by
the Investigating Officer in a manner violative of
Section 162 Cr.P.C. as the procedure requires the
Investigating Officer to record the search
proceedings as if they were written by the panch
witnesses themselves and it should not be
recorded in the form of examining witnesses, as
laid down in Section 161 Cr.P.C. This Court
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concluded, by stating that the entire panchnama
would not be liable to be discarded in the event of
deviation from the procedure and if the deviation
occurred due to a practical impossibility, then the
same should be recorded by the Investigating
Officer so as to enable him to answer during the
time of his examination as a witness in the Court
of law.”
iv) In Yakub Abdul Razak Memon v. State of
Maharashtra through CBI, Bombay 20, the Apex Court held as
under:
“This Court noted that the primary intention
behind the ‘panchnama’ is to guard against
possible tricks and unfair dealings on the part of
the officers entrusted with the execution of the
search and also to ensure that anything
incriminating which may be said to have been
found in the premises searched was really found
there and was not introduced or planted by the
officers of the search party. It was further noted
that the legislative intent was to control and
check these malpractices of the officers, by
making the presence of independent and
respectable persons compulsory for search of a
place and seizure of an article. It was pointed out
that a panchnama can be used as corroborative
evidence in the Court when the respectable
person who is a witness thereto gives evidence in
20
. (2013) 13 SCC 1
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016the Court of law Under Section 157 of the
Evidence Act. This Court noted that Section
100(4) to Section 100(8) Code of Criminal
Procedure stipulate the procedure with regard to
search in the presence of two or more respectable
and independent persons, preferably from the
same locality, so as to build confidence and a
feeling of safety and security amongst the
public.”
v) In the light of the aforesaid principles, there is no
irregularity in requesting the Revenue Officials as panchas. Thus,
the aforesaid contention of learned counsel for the appellants is
untenable.
30. INQUEST PANCHAS:
i) In this case, inquest panchas are also crucial witnesses to
prove the guilt of the accused. The inquest reports, viz., Exs.P2, P3,
P5, P7, P8, P9, P10, P12, P13, P14, P15, P16, P17, P18, P19, P20,
P21, P22 and P25 along with Exs.P108 to 139 play a crucial role in
establishing the nature of blasts. In the said reports, it was opined
that the deceased individuals died due to the explosion of high
explosive bombs. In view of the aforesaid evidence, the contention of
learned counsel for accused Nos.2 to 5, Mr. R. Mahadevan, that the
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only due to a transformer and a cylinder blast which resulted in
deaths of 18 individuals including a newborn and 131 others serious
injured is unsustainable.
31. The learned trial Court in the impugned judgment,
considered the nature of blasts in paragraph Nos.76 to 80; evidence
of complainants and injured in paragraph Nos.81 to 109, evidence of
Medical Officers in paragraph Nos.110 to 151, inquest panchas in
paragraph Nos.152 to 168, evidence of Investigating Officers in
paragraph Nos.169 to 183, 190 and 201, evidence of panchas for
scene of offence in paragraph Nso.184 to 189, evidence of FSL
Experts with regard to scene of offence in paragraph Nos.202 to
2024 and for video footage in paragraph Nos.207 to 211, evidence of
Photographer in paragraph Nos.205 and 206, evidence of owners of
Video recorded Cameras in paragraph Nos.212 and 213 and the
evidence of Photographer with regard to scene of offence in
paragraph Nos.214 and 215 and having discussed elaborately in
paragraph No.220, gave reasons that Ex.P28 – rough sketch, Ex.P29 –
another scene of panchanama, MOs.85 to 98 and and also Ex.P35 –
seizure panchanama dated 25.02.2013, Ex.P36 – rough sketch of
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scene of Offence in Cr.No.56 of 2013 of P.S. Malakpet, Ex.P38 –
seizure Panchanama, Inquest Panchanamas, MLC Certificate,
Exs.P108 to 121 disclose that injured sustained blast injuries and
post-mortem certificates, Ex. P122 to 139 discloses the deceased
died due to multiple blast injures, Ex. P141 to 160 discloses that
injured sustained the injures due to bomb blast, MLC Certificates
Exs.P221 to 251, Exs.P276 to 279, Exs.P282 to 293 it is mentioned
that injured sustained injuries due to Bomb blast.
32. The learned trial Court in the impugned judgment at
paragraph Nos.234 to 235 discussed about Ex.P89 – FSL Report and
observed thus:
“Ammonium Nitrite a chemical substance one of
the ingredients of high explosives is found in the
items 1, 3, 6, 7, 8, 9, 10, 13 & 14 and 17 to 19
(MO.6, 8, 11 to 29 & MO.31 to 33). Traces of
Ammonium Nitrite also found in items 2, 4, 5, 11
& 12. He opined that items 1 to 19 are analysed
as per the methods and ammonium nitrate, a
chemical substance one of the ingredients of
High Explosives is found in items 1, 3, 6, 7, 8, 9,
10, 13 & 14 and 17 to 19 (Mo.6, 8, 11 to 29 &
Mo.31 to 33)”
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33. The learned trial Court further discussed that that Ex. P88
– FSL Report given by PW.78 – Technical Officer in DMRL and his
opinion in paragraph No.235 as under:
“He opined that the black deposit on both the
samples contain magnesium on the surface in
varying compositions and this could be due to
residue of the explosives used.”
34. The learned trial Court also observed in paragraph No.237
observed thus:
“In this matter no material was placed by the
defence counsel to support his contention or at
least to create a doubt that it was a cylinder blast
or a transformer blast or due to short circuit and
he did not examine any witnesses from either of
the Departments i.e., Electricity Department or
Gas Agency. Even otherwise there is no
suggestion to the Medical Officers who
conducted the autopsy over the dead bodies of the
deceased and examined the injured that those
injures are possible by cylinder blast or
transformer blast.”
Thus, the learned trial Court considered the evidence, came to a
conclusion in paragraph Nos.224 to 245 of the impugned judgment
that the nature of the blast is due to IED Explosion.
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35. CIRCUMSTANTIAL EVIDENCE:
i) With regard to circumstantial evidence, the depositions of
PWs.54 to 58, 60 to 73, 102, 113, 116, 123, 124 and 127 to 129 are
relevant. As already stated above, PW.54, relative of one Mr.
Brahmaiah Chary, house owner of Abdullapurmet Village deposed
that her house is also situated in the same locality. Accused No.4
under the guise of a student occupied the house of Mr. Brahmaiah
Chary. Therefore, she identified him as accused No.4 during TIP
conducted at Central Prison, Cherlapally. She was examined by the
police and her statement was also recorded under Section – 164 of
Cr.P.C. PW.55 was also examined. He is the husband of PW.54.
Mr. Brahmaiah Chary, his relative, handed over the house keys to
show the same to the persons who wanted the house on rent. His
wife handed over the keys of the said house on rent to the person in
the first week of February, 2013. On the date of bomb blast at
around 3 to 4 p.m., accused No.4 handed over the keys of the said
house to him stating that his mother was not feeling well and he was
going to Mumbai. PW.55 identified that person as accused No.4.
Accused Nos.2 and 3 were staying along with accused No.4 in the
said house. From the date of bomb blast, accused Nos.2 to 4 were
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not found in that house. He was also examined by the police as well
as the Magistrate. He also participated in TIP conducted on
28.06.2014 at Central Prison, Cherlapally. Thus, there is no doubt
with regard to identification of accused Nos.2 to 4.
ii) PW.58, shop owner of M/s. Mahalakshmi Agencies,
deposed about three persons coming to his shop and purchasing of
two big size cookers one day prior to the bomb blast. One person
(accused No.2) came and asked him to sell two cookers, while two
others (accused Nos.3 and 4) were standing outside the shop at a
distance of 6 feet from him. He was also examined by the police as
well as the Magistrate. He participated in TIP proceedings at Central
Prison, Cherlapally, wherein he also identified accused Nos.2 to 4
during TIP conducted on 19.10.2013 and 28.06.2014. Ex.P51 is his
signature on TIP proceedings dated 28.06.2014. Despite cross-
examining this witness at length, nothing contra was elicited from
him. By the evidence of this witness also, accused Nos.2 to 4 were
identified as per the persons and the persons who are responsible for
bomb blasts. In view of the same, it is clear that accused No.2 along
with accused Nos.3 and 4 went to the aforesaid shop and purchased
the aforesaid cookers. The same were used for filling the explosives
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in making IED Bomb Blast. PW.47, the Investigating Officer in
respect of Crime No.146 of 2013of Saroornagar Police Station,
conducted the seizure panchanama at 10.00 P.M. and seized the
important material objects vide Ex.P27. In the said seizures, parts of
the cooker were also there.
36. DISCLOSURES & CONFESSIONS OF ACCUSED:
i) Ex.P192 is the disclosure statement of accused No.2 given
in connection with R.C. No.1& 2/2013/NIA/HYD before PW.138
on 02.09.2013 at Group Centre, Shamirpet, Hyderabad, in the
presence of PWs.92 and LW.307, independent witnesses, which led
to discovery of evidence under Section – 27 of the Evidence Act,
and the same is as under:
“On the instructions of Riyaz Bhatkal, I booked my ticket
revealing my identity as Danish through VRL travel
agency in Mangalore and left for Hyderabad on 9th
February 2013 at about 2 P.M. and reached in Hyderabad
on next day i e.. 10-2- 2013 around 8 AM. I got down
from the Bus in Kukatpalli area and contacted Hassan
from a nearby PCO and informed him that I have reached
Hyderabad. He told me to come to LB Nagar. I proceeded
to LB Nagar in an Auto and after reaching LB Nagar,
again I contacted Hassan @ Tahseen @ Monu from a
PCO situated near LB nagar X roads at broad land hotel.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016After receiving the call, Hassan @ Tahseen @ Monu who
was already waiting at LB nagar X roads came and took
me to the shelter place situated at Abdullapurmet near
Ramoji Film City.
I found the shelter place to be suitable as the place
is far off from the city, quite isolated, near to highway
with transport convenience, no presence of owner and
also there were many colleges nearby. After staying in
Hyderabad for 3 days, 1 left for Mangalore by VRL
travels on 12th February in the name of ‘Danish I reachedMangalore on 13th morning. On 15th February 2013, I
along with Waqas and the explosive material started from
Mangalore by VRL travels and reached Hyderabad on16th February. Two tickets were booked in the name of
ANI’ for this the We got down from the bus at Lakadi-ka-
pul and reached LB Nagar by auto. Frontere we boarded a
city bus and reached Abdullapurmet and the explosive
material was kept in the shelter place, rented by Hassan @
Tahseen @ MonuAs per the instructions of Riyaz Bhatkal through
chat, we conducted reccee in the areas of Malakpet,
Abids, Koti, Begum Bazar and Dilsukhnagar. Within two
days of our reccee, we decided to plant the bombs in
Dilsukhnagar in the evening around 7 PM This place and
time was selected, as there is huge Hindu population in
the area and also large number of students gather in this
area around that time
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016We purchased a plastic sheet of 1 meter from a
shop after crossing the Chadarghat bridge on the main
road of Putlibowli for the purpose of packing and filling
the explosives inside the cooker and not to contaminate
the explosive with cooker material.
Two to three days before the blast, we also
conducted a test blast to check the explosive at a far off
deserted place on a hill, which is about 5 to 6 kms after
crossing Abdullahpurmet. Myself, Waqas and Hassan
went in an auto and got down from the auto on the main
road and walked inside for about 20 minutes, searching
for a suitable place to conduct the test blast. We found a
hillock on the right side near which another road was
leading towards left. We went on to the hillock on the
right side and found a suitable place on the top of the
hillock to conduct the lest blast For the test blast, we
made all preparations at our shelter place. We took along
with us one separate detonator and one half of the ANFO
tube with detonator fixed into it and a 9 volt battery. On
the top of the hillock, we dug a small pit with a knife and
first exploded the detonator with a 9 volts battery from a
distance to check the sound that it would create Later in
the same pit, the explosive along with the detonator was
kept and exploded from a distance using the 9 volts
battery and it was conducted successfully. Later the
remnants of the test blast were cleaned.
On 20-02-2013 afternoon at about 2 P.M. myself
and Hassan @Tahseen@ Monu, purchased an old cycle
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016froth one cycle repairer shop situated on the way way near
a mazaar leading from Yashoda Hospital, Malakpet
towards TV tower for Rs 1400/-. The same was taken to
Malakpet railway station parking stand and parked the
cycle. A receipt was taken from the counter. We tried for
another old cycle but we could not get it. While trying for
another cycle in the market, somebody told that on every
Thursday, there will be a market, where second hand
articles, including cycles are sold. We decided to buy
another cycle on next day from that market. Then we went
to Lakdikapul at about 4 P.M. in an auto and booked
return tickets for Waqas and myself in the name of
Nabeel, to go to Bangalore on 21-02-2013 in SL travels.
At about 09.00 PM, Waqas and myself went to
one Sri Mahalakshmi steel shop, Waqas and myself
stayed at entrance of the shop. Monu went inside the shop
and purchased two 7½ litres capacity pressure cookers of
Ganga make for Rs 1250/- each for preparing the IED.
We returned to Abdullahpurmet house and engaged in
preparation of IEDs. We kept the Plastic sheet inside the
cooker and filled with Explosive material.
On the next day i.e, on 21-2-2013 morning, I along
with Hassan @ Tahseen left for purchasing another cycle
from Thursday market leaving Waqas at the shelter place
to complete the preparation of IEDs. At about 11.15 hrs
Hassan @ Monu and myself reached the Thursday market
and came to know from auto driver that it is called as
‘jummerath bazaar. We purchased another old cycle from
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Masjid, where there were other cycle sellers also selling
old cycles. The cycle seller from whom we purchased the
cycle is of about 5’7″ height, black complexion, brown
colour hair, white beard and moustache, wearing
glasses, normal built and wears Shirt& pant. While
purchasing the cycle, I heard somebody from behind
calling this cycle seller by name as Pasha.
From there we went to Malakpet railway station
cycle stand on the same cycle and parked it in the same
cycle stand, where we parked the first cycle on the
previous day and took the receipt. The same person who
was present on the previous day while parking the cycle
was also present at that time. He identified me and Hassan
and asked us, “kal bhi ek cycle aap ne rakhi thi, woh cycle
bhi yahi pe hai na” (you have parked one cycle yesterday
and it there we went to Abdullahpurmet house by an auto
is still parked here). From there we went to
Abdullahpurmet house by an auto.
At about 4 P.M. while we were waiting outside,
Waqas prepared the IED by fixing the time for explosion
at 7 P.M. After completing our preparation of IEDs etc..
the remaining items viz, two digital watches, handles and
whistles of cooker and trolley bag used for carrying
explosives were thrown in two different places after
damaging them. At about 5 PM, we vacated the house and
Hassan informed the house care taker that his mother is
serious and he is leaving to Mumbai and handed over the
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road in an auto along with IEDs. From there we engaged
an auto and went to the cycle stand situated at Malakpet
Railway Station. While Waqas was waiting on the road
along with IEDs and our baggage, myself and Hassan @
Tahseen @ Monu went inside the parking place and
returned receipts at the counter and paid the amount and
collected the cycles.
After collecting the cycles, the IEDs, which were
assembled in two pressure cookers and kept in white color
fruit cartons purchased from fruit vendors, were kept on
two cycles, duly checking the mechanism. The job of
planting / parking the cycles carrying IEDs on its carrier
to the blast spot, that is at (1) Dilsukhnagar Bus Stop was
performed by Waqas and (2) A1 Mirchi Centre was
performed by Hassan Tahseen @ Monu. I followed them
upto the places of planting of IEDs mounted cycles by
observing and guiding them.
After planting the IEDs, Waqas and myself left to
Malakpet by foot and from Malakpet we went to Lakadi-
ka-pool by auto and Monu alone left to an unknown place.
We learnt that two IEDs were successfully exploded and
many were injured and some people succumbed to their
injuries. We felt happy on hearing the news of explosion.
Waqas and myself returned to Bangalore on the earlier
booked tickets From Bangalore to Mangalore we travelled
by Karnataka state Road Transport Bus As per the
instructions of Riyaz Bhaktal through chat I left
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Mangalore for Bangalore to proceed to Nepal, while
Waqas stayed back in the same flat. After reaching Nepal
Md. Ahmed Sidibapa @ Yasin Bhatkal provided shelter
to me on the instructions of Riyaz Bhatkal. During my
interaction with Yasin Bhatkal I came to know that he had
the knowledge of Hyderabad twin blasts. He was also
closely monitoring our activities along with Riyaz
Bhatkal. Yasin also helped Riyaz Bhatkal in procuring the
explosives for Dilsukhnagar, twin blasts.”
ii) The above said disclosure statement would clearly show as
to how the accused committed the offences in respect of twin blasts
and the said statement corrabarates with prosecution witnesses
about involvement of accused Nos.1, 3 and 4.
iii) Further, PW.58 deposed that accused No.2 came inside the
shop, whereas the disclosure statement of accused No.2 refers that
accused No.4 went inside the shop and purchased the cooker.
Though there is a contradiction on the said aspect between the
evidence of PW.58 and the disclosure statement of accused No.2, the
same is insignificant and would not tilt the case of prosecution. His
disclosure statement would also reveal with regard to test blast near
Ramoji Film City. Thus, pursuant to the disclosure statement of
accused No.2, the Investigating Officer examined PW.58 and also
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collected tax invoice produced by PW.58 in the presence of witnesses
vide seizure memo, dated 28.09.2013. In view of the evidence of
PW.58 and the disclosure statement of accused No.2, it is clear that
the accused used the aforesaid cookers in commission of offences
and there is no contra evidence to disprove the case of the
prosecution. Thus, the prosecution is successful in proving its case
on the aspect of accused purchasing the cooker and utilized the same
for keeping explosives in it.
iv) PW.138 arrested accused No.2 and produced before the
Special NIA Court at New Delhi. A transit Warrant was granted and
he was produced before the learned trial Court, Hyderabad. Police
custody was also granted from 20.09.2013 to 08.10.2013.
v) With regard to Ex.P331-the disclosures-cum-IED
demonstration made by accused No.3 in connection with RC No.1 &
2/13/NIA/HYD is also relevant to discuss herein. At the time of
commission of offence, he was aged 24 years. He hails from
Mustafabad, Punjab, Pakistan. He disclosed about the bombs which
exploded at Dilsukhnagar, Hyderabad, were made and planted by him
along with accused Nos.2 and 4. He learnt the art of making bombs
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at Dilsukhnagar, Hyderabad; at North Waziristan, FATA Area. He
underwent Taliban training in the said area for 25 days. The trainer’s
name was Nasar Bhai @ Nasarulla. He completed the training of
about 25 days and 12 days of mixture of explosives training. He
learnt three types of explosives mixture. He had mastered the art of
making bombs, had practiced and successfully tested those bombs by
exploding them at isolated locations near Deshmukh Village of
Hyderabad along with accused Nos.2 and 4. If he is provided with
different components of IEDs (Bombs), such as 1) Soldering Iron
25watts, 2) Soldering lead, 3) Vero mother board, 4) 9 volt battery, 5)
9 volt battery clip, 6) Multi-meter, 7) Precision screw driver set, 8)
Single strand wire-1mtr, 9) 1mt normal plastic electrical wire, 10)
Jumper wire, 11) 1 kilo ohm resistor, 12) 1.5 LED one piece, 13) 10
kilo ohm resistor, 14) IN4148 diode, 15) MCR 100.6 SCR, 16) Relay
5-6 volt, 17) Digital watch 1 piece, 18) Wire cutter, 19) Red
cellophane tape, 20) Paper cutter 21) Detonators, 22) Cooker, 23)
Explosives etc., he can demonstrate how he made the bombs, which
were blasted by him and other associates, accused No.4 planted at
A1-Mirchi Centre and 107 Bus Stop at Dilsukhnagar, Hyderabad, on
21.02.2013.
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vi) His disclosure statement further reveals that in the
presence of the above mentioned witnesses and NIA Officers on
08.06.2014, he also learnt the art of making bombs (which were
planted at Dilsukhnagar, Hyderabad on 21.02.2013) and successfully
tested those bombs by exploding them and if he is provided with the
different components of IEDs, he can demonstrate the complete
procedure of making such IEDs. Accordingly, he was provided with
limited sample components for the purpose of demonstration of
bomb making in the presence of the above mentioned witnesses viz.
1)Soldering Iron, 2) Soldering lead, 3) Vero mother board, 4) 9 volt
battery, HW company, 5) 9 volt battery clip, 6) Multimeter, 7)
Precision screw driver set, 8) Single strand wire-very thin, 9) 1mt
normal plastic electrical wire, 10) Jumper wire (assorted), 11) 1 kilo
ohm resistor, 12) 1.5 LED one piece, 13) 10 kilo ohm resistor, 14)
IN4148 diode, 15) MCR 100.6 transistor, 16) Relay 5-6 volt, 17)
Taixun Digital watch,18) Wire cutter, 19) Red cellophane tape, 20)
Paper cutter, 21) Dummy Detonators, 22) Cooker -5 ltrs, 23) Dummy
explosives (Mud) etc. A new video SD Card BI1309422908G of
8GB capacity for recording the video provided to the NIA
videographer Raju for recording the entire process of IED making
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demonstration given by accused No.3. He was then asked to
demonstrate the procedure of bomb making step by step along with
his own commentary on each step. During preparation, he asked to
provide Internet to verify the pin configuration of the SCR 106. He
gave the access in his personnel laptop provided with internet
connectivity. He googled and typed SCR 106 leg, and verified the
pin configuration K (Cathode), A (Anode), G (Gate).
vii) Accordingly, accused No.3 soldered the above component
on the mother board for completion of the timer circuitry. The video
SD Card No B11309422908G containing the recording of the
process recorded by NIA Photographer GS Raju, was duly
packed and sealed in Paper cover and thereafter handed over to
PW.157, the Chief Investigating Officer, NIA, Hyderabad for further
investigation. Thereafter, accused No.3 demonstrated the process of
IED making with the help of electronic components provided which
was duly video graphed and the circuit was perfectly working on
bench test, the sample dummy IED made by him and the
remnants/used articles left over were duly packed, sealed in a cover
and taken into police custody. On completion of recording of the
above process, the entire proceedings were drawn up and read over to
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accused No.3 in the language he understood, Hindi/English and the
witnesses present. All concerned accepted the same as correctly
recorded and put their signatures on the memorandum as a token of
its correctness. The specimen of the seal used during the proceeding,
is embossed hereunder. The proceedings were concluded at 1745 Hrs.
Recording of Disclosure and demonstration of IED is commenced
from 1500 Hrs to 1745 Hrs. Accused No.3 was arrested on
23.05.2014 by PW.157 and brought before the Special NIA Court at
New Delhi. A Transit remand was granted on 23.05.2014 and he was
produced before the learned trial Court, wherein accused No.3 was
granted police custody from 25.05.2014 to 09.06.2014.
viii) At the same time, Ex.P388 – disclosure panchanama by
accused No.3 is also important. Ex.P388 would reveal that as per
directions of accused No.1, he and accused No.3 moved from
Belgaum to Mangalore in the month of September 2012. In
Mangalore they rented a flat in an Apartment building near
Hampankatta. During their stay at Mangalore, he used to
communicate with accused No.1 with online chatting from the
Internet cafes namely 1) Falnir- Cyber point 2) Angel Cyber Gallery
3) Cyber Fast. In the first week of February, 2013, accused No.1
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informed him over chat that in a few days explosive material would
be delivered to him in Mangalore and he has to carry out blasts in
Hyderabad along with accused Nos.3 and 4. As a part of
preparation, accused No.1 sent money through WUMT and also
through hawala. The money sent by WUMT was received from
Supama Forex Pvt. Ltd./WUMT outlet situated at Hammpankatta
circle and hawala money was received from Ding Dong Shop
owner, Market Road, Mangalore. After receiving the money, he and
accused No.3 purchased digital watches from City Centre mall,
Hampankatta and one mobile set and SIMS from Cell U com, near
Hampankatta and another SIM card from Bandar road, Mangalore.
Ex.P388 further discloses that in the first week of February 2013, he
received the explosive material from an unknown person in a golden
colour trolley bag sent by accused No.1. The material was delivered
near Unity Health Centre, Mangalore. (At the time of delivery one
watchman suspected him and the person who delivered the explosive
and questioned their identity and the contents in the trolley, but they
managed to escape). After receiving the explosives, he kept the said
material in their flat. Subsequently, he booked his ticket through
travel agency situated in Mangalore and he came to Hyderabad and
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contacted accused No.4 from a PCO situated near L.B. Nagar X
roads at Broad Land Hotel. After receiving the call, accused No.4,
who was already waiting at L.B. Nagar X roads, came and took him
to the shelter place situated at Abdullapurmet, near Ramoji Film
City. He found the shelter place suitable and left for Mangalore.
Later the explosive material was taken to Hyderabad by him and
accused No.3. At Hyderabad, the explosive material was kept in the
shelter place, rented by accused No.4 at the outskirts. As per the
instructions of accused No.1, they conducted reccee in the areas of
Malakpet, Abids and Dilsukhnagar and decided to plant bombs at
Dilsukhnagar. Two to three days before the blast day, they also
conducted a test blast to check the explosive at a far off deserted
place from Abdullapurmet.
a) Ex.P388 further discloses that he, Waqas and accused No.4
purchased one old cycle from one cycle repairer shop situated on the
walk way near a mazaar leading from Yashoda Hospital, Malakpet
towards TV tower on 20.2.2013 around 2.00 P.M., and parked the
cycle at the cycle stand situated at Malakpet Railway Station and
went to Lakdi-ka-pul, in an auto-rickshaw and booked return tickets
in his name and in the name of Waqas. Subsequently, on the same
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day, he and accused No.4 purchased two pressure cookers having
capacity of 7 ½ litres each from one Sree Maha Laxmi Steel Palace
situated near to the LB Nagar X roads to place the IEDs in them to
Increase the pressure. On the next day i.e., on 21.02.2013 morning,
he along with accused No.4 left for purchasing another cycle from
Thursday market leaving Waqas at the shelter place to prepare the
IEDs. At about 11.00 hrs., himself and accused No.4 reached
Thursday market and purchased another old cycle from one person
and went to Malakpet railway station cycle stand on the same cycle
and parked it at the cycle stand, where we parked the first cycle. In
the evening after completing their preparation of IEDs etc., the
remaining items viz., two digital watches, handles and whistles of
cooker and trolley bag used for carrying, explosives were thrown in
two different places after damaging them. At about 5.00 P.M., they
vacated the house and accused No.4 informed the house care taker
that his mother is serious and he is leaving to Mumbal and handed
over the keys of the shelter place to him and reached L.B. Nagar X
road in auto along with IEDs and their temporary baggage and went
to the cycle stand situated at Malakpet Railway Station in another
auto-rickshaw, where he and accused No.4 went and collected
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cycles, while Waqas was waiting with on the road along with IEDs
and our baggage. After collecting the cycles, the bombs, which were
assembled in two pressure cookers which were kept in white colour
fruit cartons purchased from fruit vendors, were kept on two cycles,
duly checking the mechanism. The job of planting/parking the cycles
carrying IEDs on its carrier to the blast spot, i.e., (1) Dilsukhnagar
Bus Stop was performed by Waqas and at (2) A-1 Mirchi Centre was
performed by accused No.4. After the explosion, he and Waqas
returned to Mangalore. The next day, he left Mangalore for
Bangalore to proceed to Nepal, while Waqas stayed back in the same
flat. The relevant portion of the disclosure is reproduced hereunder:
“If, I am taken to Mangalore and Hyderabad, I
will identify and point out all the places of
transactions which occurred in conducting the
twin blasts at Dilsukhnagar, Hyderabad along
with other places of receiving explosive used in
Mumbai, Pune and places of our visit to have
food etc.”
b) The above disclosure was read over and explained to the
accused Asadullah Akhtar @ Haddi by Sri. K. Sunil Emmanuel, IPS
Superintendent of Police, NIA, Hyderabad in Hindi and Urdu and the
accused admitted to be true and signed.
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ix) Ex.P493 – disclosure statement-cum-plotting memo, dated
29.05.2014 by accused No.3 would reveal that he is a resident of
Pakistan and underwent Jihadi Training in Explosives i.e.,
preparation of IEDs, use of Hand Grenades, training in Weapons
including small arms, like Pistol and other weapons, such as AK-47,
Light Machine Gun, Rocket Launchers. As per the instructions of
accused No.1, he came to India and joined the other accused,
conspired with them and participated in several bomb blasts across
the Country including Dilsukhnagar Twin Bomb Blast case. He
voluntarily stated that if he is provided a computer system with
internet facility, he will plot the locations of his house, and the places
where he underwent Jihadi Training with Terrorist outfits in
Pakistan, and place where Asadullah Akhtar had received phone call
from explosives supplier at Mangalore on Google earth maps.
x) Ex.P389A & B are the disclosure panchanama, dated
26.05.2014 of accused No.4 and the same would reveal that on
24.05.2014, learned trial Court gave police custody of accused No.4
for a period from 24.05.2014 to 02.06.2014. Accordingly, he was
interviewed and questioned about his role in the subject bomb blasts.
His disclosure statement is as under:
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016“In the third week of January 2013, Riyaz asked me to go
to Hyderabad. I told Asif that I was going to Hyderabad
for taking admission in M.B.A. course. I told him that my
name in Hyderabad would be Sameer. I asked Asif to
suggest or provide any accommodation at Hyderabad for
3-4 days till the arrangement of another accommodation is
made. Asif arranged for an accommodation at his cousin
Zeeshan’s room situated near St. Mary College,
Deshmukhi village. Zeeshan was pursuing Diploma
course from this college. It was in a village and the room
had a landmark i.e. Mobile Tower and behind the room
was a stone cutting shop. I reached Hyderabad via train in
the last week of January 2013 and stayed at Zeeshan’s
room for 3-4 days.
During my stay with Zeeshan, I tried to get rented
house in and around Deshmukhi village. I moved and
enquired about the available rented houses and I called
some agents in that area. Finally, I found a to-let board in
Abdullapurmet area with mobile number. I have contacted
over that number for lending the “house on rent, upon
which he directed me to meet one Dr. Sudha Madhuri,
who is his relative and reside in the same locality nearby.
I have visited the Medical Shop and met Dr. Sudha
Madhuri, introduced myself as student. After verifying the
room and locality, I found it suitable for occupation. The
rent was decided to 1500/- per month. I have informed the
same to Riyaz Bhatkal over chatting.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Riyaz told me that Daniyal will visit Hyderabad to
check whether this accommodation was suitable for their
purpose. I was carrying the Idea SIM purchased from
Ghaziabad with me in Hyderabad. This number was
passed on to Daniyal by Riyaz on 10-2-2013, Daniyal
came to Hyderabad and called me through PCO
Kukatpalli. I instructed him to hire an auto and come
down to LB Nagar X roads. After his reaching, again he
called on my phone through PCO and I received him at
L.B. Nagar, Hyderabad and took him to the hideout.
“Daniyal carefully inspected the surrounding areas and
informed Riyaz that the hideout was safe. Then it was
decided that Waqas would join them.
Daniyal left Hyderabad for Mangalore. Again after
4/5 days after his leaving. Daniyal came to Hyderabad
along with Waqas and explosives. This time, they were
carrying a bag and had also brought a laptop with them.
Riyaz had provided them with a list of probable places for
reccee. Waqas had already prepared 4-5 circuits. As per
the instructions of Riyaz Bhatkal through chat, we
conducted reccee in the areas of Malakpet, Abids, Koti,
Begum Bazar and Dilsukhnagar. Within two days of our
reccee, we decided to plant the bombs in Dilsukhnagar in
the evening around 7 PM. This place and time were
selected, as there is huge Hindu population in the area and
also large number of students gather in this area around
that time.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016We purchased a plastic sheet of 1 meter from a
shop after crossing the Chadarghat bridge on the main
road of Putlibowli for the purpose of packing and filling
the explosives inside the cooker and not to contaminate
the explosive with cooker material. Two to three days
before the blast, we also conducted a test blast to check
the explosive at a far-off deserted place on a hill, which is
about 5 to 6 kms after crossing Abdullahpurmet. Myself,
Waqas and Haddi went in an auto and got down on the
main road and walked inside for about 20 minutes,
searching for a suitable place to conduct the test blast. We
found a hillock on the right side near which another road
was leading towards left. We went on to the hillock on the
right side and found a suitable place on the top of the
hillock to conduct the test blast. For the test blast, we
made all preparations at our shelter place. We took along
with us one separate detonator and one half of the ANFO
tube with detonator fixed into it and a 9 volt battery. On
the top of the hillock, we dug a small pit with a knife and
first exploded the detonator with in the 9v battery from a
distance to check the sound that it would create. Later in
the same pit, the explosive along with the detonator was
kept and exploded from a distance using the 9 V battery
and it was conducted successfully. Later the remnants of
the test blast were cleaned.
On 20-02-2013 afternoon at about 2.P.M. myself
and Haddi purchased an old cycle from one cycle repairer
shop situated on the walk way near a mazaar leading from
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Yashoda Hospital, Malakpet on the tower for Rs. 1400/-,
whereas Waqas stood at a farer distance. The cycle was
taken to Malakpet railway station parking stand and
parked. A receipt was taken from the counter. We tried for
another old cycle but we could not get it. While trying for
another cycle in the market, somebody told that on every
Thursday there will be a market, where second hand
articles, including cycles are sold. We decided to buy
another cycle on next day from that market.
At about 09.00 PM, Waqas and Haddi went to one
Sri Mahalakshmi steel shop, Waqas and Haddi stayed at
entrance of the shop. I went inside the shop and purchased
two 7 ½ litres capacity pressure cookers of Ganga make
for Rs. 1250/- each for preparing the IED. We returned to
Abdullahpurmet house and engaged in preparation of
IEDs. We kept the Plastic sheet inside the cooker and
filled with Explosive material.
On the next day i.e, on 21-2-2013 morning, I along
with Haddi left for purchasing another cycle from
Thursday market leaving Waqas at the shelter place to
complete the preparation of IEDs. At about 11.15 hrs
myself and Haddi reached the Thursday market and came
to know from auto driver that it is called as ‘jummerath
bazaar. We purchased another old cycle from one cycle
seller for Rs. 1500/- from a place near the Masjid, where
there were other cycle sellers also selling old cycles. The
cycle seller from whom we purchased the cycle is of
about 5’7″ height, black complexion, brown colour hair,
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and wears Shirt& pant. While purchasing the cycle, we
heard somebody from behind calling this cycle seller by
name as Pasha.
From there we went to Malakpet railway station
cycle stand on the same cycle and parked it in the same
cycle stand, where we parked the first cycle on the
previous day and took the receipt. The same person who
was present on the previous day while parking the cycle
was also present at that time. He identified me and Haddi
and asked us, “kal bhi ek cycle aap ne rakhi thi, woh cycle
bhi yahi pe hai na”. (you have parked one cycle yesterday
and it is still parked here). From there we went to
Abdullahpurmet house by an auto.
At about 4 P.M. while we were waiting outside,
Waqas prepared the IED by fixing the time for explosion
at 7 P.M. After completing our preparation of IEDs etc.,
the remaining items viz., two digital watches, handles and
whistles of cooker and trolley bag used for carrying
explosives were thrown in two different places after
damaging them. At about 5 PM, we vacated the house
and I informed the house care taker that my mother is
serious and I have to leave Mumbai and handed over the
keys of the shelter place to him and reached LB Nagar X
road in an auto along with IEDs. From there we engaged
an auto and went to the cycle stand situated at Malakpet
Railway Station. While Waqas was waiting on the road
along with IEDs and our baggage, myself and Haddi went
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016inside the parking place and returned receipts at the
counter and paid the amount and collected the cycles.
After collecting the cycles, the IEDs, which were
assembled in two pressure cookers and kept in white
colour fruit cartons purchased from fruit vendors, were
kept on two cycles, duly checking the mechanism. The
job of planting/parking the cycles carrying IEDs on its
carrier to the blast spot, that is at (1) Dilsukhnagar Bus
Stop was performed by Waqas and (2) A1 Mirchi Centre
was performed by me. I followed them up to the places of
planting of IEDS mounted cycles by observing and
guiding them.
After planting the IED at A1 Mirchi Centre, I took
an auto and reached Nampalli, Railway Station and
boarded a train for Ranchi at about 8.30 PM in general
bogie, as decided earlier.”
xi) Ex.P494 – disclosure-cum-Plotting memo of accused No.4,
dated 29.05.20214 would reveal that he along with accused No.5 and
others had participated and conspired to carry out several bomb
blasts across India. He voluntarily stated that if he is provided a
computer system with internet facility, he would plot the locations of
his hideouts in INDIA, on Google earth maps. The computer system
from the office was identified to conduct the proceedings for
recording the proceedings of Disclosure-cum-Plotting Memo.
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xii) Ex.P419 – disclosures of accused No.5 is as under:
“Mohammed Ahmed Siddibapa @ Yasin Bhatkal @
Sharukh has disclosed about chats made between him and
another person namely Riyaz Bhatkal during the police
custody at Delhi on 11.09.2013. The IO has also showed
us the copy of disclosure memo made on the disclosure of
Mohammed Ahmed Sidibapa @Yasin Bhatkal) on
11.09.2013 at New Delhi in connection with the
Disukhnagar Twin Blasts at Hyderabad. Once again, the
IO has given the copy of the disclosure memo to
Mohammed Ahmed Sidibapa @Yasin Bhatkal and Yasin
Bhatkal disclosed the following:
After my arrest and when I was in custody of NIA
at New Delhi, on 11-9-2013, I have disclosed that “I had
chat discussion with Riyaz Bhatkal on mail id
[email protected]. used by Riyaz Bhatkal through
my mail id [email protected], used by me and I can
download all these chat discussion if I am provided a
computer with internet facility” and ” thereafter based on
that those e- mail chat discussion was downloaded and
print outs were taken, which were signed by me and
witnesses I further say that in that chat discussion, we had
discussion with regard to Hyderabad blast before and
after its execution. We use to chat in coded language
using abbreviations, which we both could understand
easily.
➢ 02/12/12 08:38:23 hrs – In this chat, Ahmed asks Riyaz
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at Hyderabad to which Riyaz replies that there is
difficulty in procuring cvv (explosive) as the person who
has to supply the explosive is hesitating to which Ahmed
replies that the explosives could be old. Riyaz then tells
Ahmed that the person supplying explosives also has
new (fresh) explosives and also that the person supplying
explosive is a middle man.
➢ 30/12/12 09:19:15 hrs- In this chat, accused Ahmed asks
Riyaz about the preparations and progress about carrying
out blast at Hyderabad to which Riyaz replies that have
you checked out the place. Whether blast can be carried
out there. Riyaz also says that cheeje (explosives) will be
available within a week. Ahmed tells Riyaz that very
effective bomb blast is to be done. (mast sa job chahiye).
Riyaz tells Ahmed that Asadullah Akhtar @Daniyal was
asking whether Ahmed is coming (aanewale kya) to
participate in the blast. Riyaz tells Ahmed that he is trying
to procure explosives from the person who had supplied
explosive for city (Mumbai blast). Accused Ahmed
advices Riyaz that we should try and get white colour
gelatin sticks as it is more effective and reliable when
compared to pink color gelatin sticks.
➢ 27/01/13 09:39:00hrs – In this chat, Riyaz informs
Ahmed that Hazi(Monu @Tehseen Akhtar)is leaving
for Safar par nikhlega aaj. (Journey to Hyderabad) for
carrying out bomb blast, finally he was requested by
Riyaz to pray for success of the task by Monu.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016➢ 07/02/13 09:04:47hrs-In this chat, Riyaz discusses
with Ahmed that Monu @ Tehseen was
searching for a rented house at Hyderabad for last one
week. Today, Monu has been successful and getting it.
Riyaz further tells Ahmed that Monu@Tehseen is at
Hyderabad where bomb blast will be done.
➢ 11/02/13 09:21:34 hrs- In this chat, Riyaz tells accused
Ahmed Sidibapa that Daniyal @ Asadullah Akhtar has
reached Hyderabad and he is with Monu@Tehseen
Akhtar Waqas has not gone there as he was busy with
some other job i.e. receiving explosives from supplier.
➢ 11/02/13 09:25:52 hrs – In this chat, Riyaz requests
accused Ahmed to pray for success carrying out bomb
blast in Hyderabad, Riyaz then asks accused Ahmed
whether any explosives is available at Nepal.
➢ 11/02/13 09:27:04 hrs- In this chat, Riyaz tells
accused Ahmed that explosives are not available. Riyaz
asks Ahmed whether ammonium nitrate is available. To
which accused Ahmed replies that ammonium nitrate is
not available but has brought some hydrogen peroxide.
➢ 16/02/13 09:37:10 hrs- In this chat, Riyaz informs
accused Ahmed that
Daniyal @Asadullah Akhtar and Waqas have left for
Hyderabad to meet Monu@Tehseen Akhtar but Monu @
Tehseen has gone missing (Monu ka koi msg nahi) and
tells Ahmed not to stay at any place in Nepal which is
known to Monu@Tehseen as there are possibilities that he
could have been caught by the police(agencies).
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016➢ 17/02/13 08:58:59 hrs. In this chat, Riyaz asks accused
Ahmed to take some rental accommodation in Nepal as
it may be risky till the return of Monu @Tehseen to
his safe house for which Ahmed replies that he has
arranged more than one rental accommodation in Nepal.
Riyaz further asks Ahmed that he wants to call Daniyal
@Asadullah to Pakistan via Nepal after Hyderabad blast
and requests Ahmed to arrange for accommodation in
Nepal.
xiii) Exs.P260 and 260A – disclosure statement of accused
No.5 was taken in RC No.6/2012/DEL, dated 02.09.2013, which led
to discovery of e-mails accounts used by him and accused No.1 for
communication and he also disclosed some Code words which they
used for communication in the above manner.
xiv) Ex.P326 – disclosure statement of accused No.6 in
connection with RC No.1 & 2/2013/HYD, dated 14.04.2015 is as
under:
“Ajaz Shaikh @ Samar Armaan Tunde @ Sagar @ Aizaz
Saeed Shaikh has disclosed in his disclosure statement
that, “On the direction of Mohsin Chaudhary and Riyaz
Bhatkal, I had provided fake Ids, Hawala money, SIM
cards, mobile phones to the members of Indian
Mujahedeen namely Yasin Bhatkal, Asadullah Akhtar @
Haddi and Tehsin Akhtar @ Monu at different occasions
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016and different places. In 2010 I had purchased Dell Lap-
Top from Mumbai. I used to scan voter IDs, D/L and
other documents from Google with the help of Photoshop
software installed in my Lap-Top., 1 was preparing fake
documents to be supplied to terrorist of Indian
Mujahedeen on the direction of Riyaz Bhatkal and my
Jeeja Mohsin Chaudhary. I also used to mall fake
documents to Riyaz Bhatkal whenever he asked me to do
so.
I have stored a number of fake elections Ids, D/L,
Passports, Photos and other Jihadee material in my Lap-
Top and Pen drives which I can get recovered, I was using
“true crypt” and “Axcrypt” encryption software’s/Keys to
encrypt the files wherein fake documents were prepared
by me. All these fake documents stored in my Lap-Top
and Pen drives have been kept in a “true crypt”. Encrypt
drive. First files were encrypted using “Axcrypt” and then
drive was encrypted using “True crypt. The codes were
“81458145” for “Axcrypt” and” forgivemeyarehman001
“for true crypt.
A-6 explained that this encrypted file uploaded by him
to Mohsin Chowdhury through wikisend. The file
contains the following data naam:vikas yadav;
address:chas bokaro Jharkhand”, A-6 explained that he
created another fake ID with this address and uploaded to
Mohsin Chowdhury through wikisend. In “aaz file
contains Voter Identity Card of one Girish Chand Joshi
S/O Jeevanand Joshi, H.No. 497B. Street/Mohalla:
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Shimla Roada, Chandrabani, Vil/Town: Vasant Vihar,
Dist.: Dehradun, Pin: 248007, Identity Card
No.1.152308815, Placa Dehradun, Date: 02-01-2007
bearing photograph of Tehsin Akhtar @ Monu (A-4)
Then the same fake ID printed through printer in the
presence of the above witnesses and A-6. He also shown
some other files containing fake IDs created with A-2
photos by him. (1) Lokesh Kumar S/O Ravi Sinha, Bailey
Road, patna, bihar (Path: EVIDENCE-Dream- TC-root-
pass-New folder(2)-new folder(2)-final. This fie contains
file downloads of passport containing photo of A-2
Asadullah Akhtar Haddi. Fake passport for A-2 in the
name of Ravi Sinha, S/O Laxmi Sinha, Name of spouse-
Jaya Sinha, Address: Bailey Road, Patna-800015 Bihar
with fake passport no. G98961166 and another face
passport with same address and fake passport number:
G9116196. Another fake passport with photograph of A-2
Asadullah Akhtar @Haddi with name of P. Kumar
Lokesh, Male, D.O.B-08/19/1982, Place of Birth Patna
with fake passport Nt.G9896116. Then the same fake ID
printed through printer in the presence of the above
witnesses and A-6. This “final” file are in BMP file, JPG
file format and contains downloads of fake IDs. Another
file shown by As contains fake ID with photograph of A-4
in the name of Armaan, S/O Aman So address: 40/C,
Gauri Shankar Nagar, PO-Doranda-20, Distt-Ranchi,
PIN-834002 with ID No. WOE3292182. Then the same
fake ID printed through printer in the presence of the
above witnesses and A-6. Another file shown by A-6
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016contains 10 ID No. PSK0163822 issued by Election
Commission of India in the name of Narendra Kumar
S/O Prakash Kumar and ID No. RRS0135747 in the name
of Pravin Kartal, S/o Ajay Kartal and informed that sane
were forwarded to Mohsin Chowdhury.”
xv) Disclosure statement of accused No.6 was taken by
PW.157 in RC No.1 & 2/2013/HYD, dated 16.04.2015, which is
Ex.P451, whereas, disclosure statement of accused No.6, dated
06.09.2014 in RC No.6/2012/DEL is Ex.P441, which is as under:
“Ajaz Shaikh @ Samar Armaan Tunde @ Sagar @ Aizaz
Saeed Shaikh has disclosed in his disclosure statement
that, “on the direction of Mohsin Chaudhary and Riyaz
Bhatkal I had provided fake Ids, Hawala Money, SIM
cards, Mobile phones to the members of Indian
Mujahedeen namely Yasin Bhatkal, Asadullah Akhtar
Haddi and Tehsin Akhtar @ Monu at different occasions
and different places. in 2010 I had purchased Dell Laptop
from Mumbai. I used to scan voter Ids. D/L and other
documents from Google with the help of Photoshop
software installed in any laptop. I was preparing fake
documents to be supplied to terrorist of Indian
Mujahedeen on the direction of Riyaz Bhatkal and my
Jeeja Mohsin Chaudhary I also used to mail fake
documents to Riyaz Bhatkal whenever he asked me to do.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016I had stored a number of fake election Ids, D/L.
passports, photos and other Jihadi material in my laptop
and pen drives, which I can get recovered. I was using
‘truecrypt and “Axcrypt” encryption software sikeys to
encrypt the files wherem fake documents were prepared
by me. All these fase documents stored in my Laptop and
pen drives have been kept in a “truecrypt” encrypted
drive. First files were encrypted using “Axcrypt” and then
drive was encrypted using “Truecrypt”. The codes were
“81458145” for “Axcrypt” and “Forgivmoyarehman001
for truecryptI can help in arresting other members of Indian
Mujahedeen I have been supplying fake Id Hawale money
and other fake documents to the members of Indian
Mujahedeen since 2010, on the direction of Riyaz Bhatkal
and Mohsin Chaudhary. I nave also received 75000
Nepali currency during my stay to Nepal I can identify the
shops from where I had purchased laptop, mobiles and
SIM cards on fake Ids.”
xvi) Exs.P442 and 451 with regard to disclosure statement
of accused No.6 taken in RC No.6/2012/DEL, dated 06.09.2014
would disclose as under:
“Ajaz Shaikh @ Samar Armaan Tunde @ Sagar @ Aizaz
Saeed Shaikh has disclosed in his disclosure statement that, “I
was using following Email/Chat Ids to communicate, Mohsin
Chaudhary and Riyaz Bhatkal. commanders of Indian
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Mujahedeen based in Pakistan. Some other E-mails were
created by for getting access to proxy websites. Hacking
website and web-uploading websites.”
S.No Chat IDs/E-Mail IDs of Ajaz Corresponding ID& name of person
Shaikh
NIMBUZZ
Jojo21221 & losticon
1. Passe542
(Mohsin Chaudhary)
2. Goforitgo Gobabygo4u (Mohsin Chaudhary)
3. Goexploring Gobabygo4u (Mohsin Chaudhary)
4. Butterjamtone Nirmacutel (Mohsin Chaudhary)
Mail IDs/Yahoo.Com
1. [email protected] [email protected](Riyaz Bhatkal)
2. [email protected] [email protected](Riyaz Bhatkal)
3. [email protected] Created for Riyaz Bhatkal
4. [email protected] Personal use
5. [email protected] ID created for getting access
hacking/proxy IP sites
6. [email protected] ID created for getting access
hacking/proxy IP sites
7. [email protected] ID created for getting access
hacking/proxy IP sites
8. [email protected] ID created for getting access
hacking/proxy IP sites
9. [email protected] ID created for getting access
hacking/proxy IP sites
10 [email protected] ID created for getting access
hacking/proxy IP sites
11 [email protected] ID created for getting access
hacking/proxy IP sites
12 [email protected] ID created for getting access
hacking/proxy IP sites
13 [email protected] Personal use
14 Mn57 [email protected] Used for accessing play store in
Android mobile
15 [email protected]. ID created for getting access to
hacking proxy IP site
16 [email protected] ID created for personal use
17 [email protected] ID created for personal use
18 Adam.joseph123456789@outloo ID created in Nepal for uploading my
k.com personal data in ONEDRIVE backup
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19 Mukesh [email protected] ID created in Nepal for uploading my
personal data in ONEDRIVE backup
20 [email protected] ID created for getting access to
hacking/proxy IP sites
21 [email protected] This is a fake mail for providing
alternate mail IDs in Gmail/yahoo
22 [email protected] This is a fake mail for providing
alternate mail IDs in Gmail/Yahoo
The Email Ids of Yahoo” roganrosh” and “pickuthere
were used to chat with Riy Bhatkal and to send fake
documents to Riyaz Bhatkal. I can open all my ID given access
to a computer having internet connection. I can get retrieved
all chat and fake Ids sent by me to Riyaz Bhatkal. I was using
coded language while chatting with Riyaz Bhatkal and Mohsin
Chaudhary. I was using “Nimbuzz” cha messenger on my
mobiles recovered from me.”
xvii) The contention of learned counsel for the accused that
the disclosure statements, Exs.P192 and 261 recorded by the
Investigating Officer are not admissible in evidence.The disclosure
statement of accused No.2 was marked as Ex. P192 and Ex. P261
recorded by PW138 in connection with RC No.1/2013/NIA/HYD in
the judicial custody, which has led to discovery of fact under Section
– 27 of the Evidence Act is admissible in evidence as the same has
fully corroborated in discovery of fact, places and relevant facts
relating to the blast occurred at Dilsukhnagar. Further the disclosure
of accused No.2 has led to various places i.e., Abdullapurmet (rental
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house) in which accused Nos.2 to 4 resided and the same was
identified by PW54 – Sudha Madhuri (relative of the landlord),
PW55 – P. Venkateswarlu (husband of PW54), who identified them
in the Court. Even his disclosure statement-cum-point out memo has
led the police team to the house at Abdullapurmet and search and
seizure was conducted vide Exs.P190 is regarding search and seizure
memo of house in Abdullapurmet, Hyderabad. Further, accused No.2
has led the police team and the independent panch witness to the
hillock remote place, wherein the test blast was conducted by the
accused on 20.03.2013. Ex. P261 is the disclosure statement of
accused No.5 made on 05.09.2013. PW.138, the Investigating
Officer deposed with regard to the same. Even the disclosure
statements of accused Nos.2 to 4 has also led to discovery of various
places i.e., test blast place at hillock place near Ramoji Film City and
discovered the seizures vide Ex.P193 ppointing out and Seizure
memo of Hillock place; Ex.P197 pointing out and Seizure memo of
Maha Lakshmi Steel Shop, where accused purchased two 7.5 liters
Pressure Cookers; Ex.P200 pointing out and Seizure memo of
Siddharath Brothers, where accused purchased a Plastic Sheet &
travel after blast from Hyderabad to Mangalore in Salamat travels.
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Even accused No.2 has also voluntarily made Ex.P25 – confession
statement under Section – 164 of Cr.P.C. which was corroborated
with the contents of disclosure statement of accused No.2 vide
Exs.P192 and 261. Thus, the said disclosure statements are
admissible in evidence with regard to role of accused in involvement
of commission of the aforesaid offences.
xviii) It is apt to note that any confession leading discovery of
fact is admissible in terms of Section – 27 of the Evidence Act as
held by this Court in Macharla Ramesh v. The State of
Telangana 21.
37. ONLINE CHATTING:
i) As per the evidence, both oral and documentary available
on record, it has to be seen whether the prosecution established that
there was online chatting between accused No.1 and accused Nos.2
to A5 conspiring to cause twin bomb blasts. On this aspect, the
owners of the Cyber Cafes i.e., PWs.69 to 71 stated that accused
Nos.2 to 4 visited their Café Centres for browsing. Exs.P64 to 68 are
the registers maintained in the shop during the months of June, July,
August and September also corroborate the evidence of PWs.69 to
21
. Crl.R.C. No.268 of 2022, decided on 18.04.2022
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71. Though accused Nos.2 to 4 attended the aforesaid Cyber Cafes
by using fake ID Cards they were identified by PWs.69 to 71.
ii) The crucial witness is PW.81, who retrieved the online
chatting in the presence of PW.99 and another panch witness. The
sum and substance of online chatting is that on 27.12.2012 accused
No.5 and accused No.1 chatted about the role of accused Nos.2 to 4
to be played in executing bomb blasts. Accused No.5 advised for not
keeping the explosive unused for long time. On 30.12.2012, accused
No.5 enquired about the preparation of blasts to be conducted and
advised that white gelatin was good for explosion. On 22.01.2013,
accused No.5 again enquired about the blasts, for which accused
No.1 replied that they have procured the explosives and there was
discussion about the quality of explosives. On 27.01.2013 accused
No.1 informed accused No.5 about accused No.4’s tour in connection
with the blast. On 07.02.2013 accused No.1 informed accused No.5
about searching of a house by accused No.4 at Hyderabad and
accused No.5 also prayed for success of the blast and accused No.5
also informed about his network at Nepal. On 11.02.2013 accused
No.1 told accused No.5 that accused No.2 had gone to accused No.4
and that he was chatting with accused No.3. On 16.02.2013, accused
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No.1 told accused No.5 that on the previous day accused No.2 and
accused No.3 met accused No.4. On 20.02.2013 accused No.1 told
accused No.5 that the blast was scheduled for the next day and asked
to specially pray for the success of the blasts.
iii) As per the evidence of PW138, it was revealed that on
28.11.2012, accused No.5 explained that in ‘H’ which means
“Hyderabad” lot of anti- Muslim activities are going on and they
discussed that this place has to be targeted for which accused No.4
was given the task to carry out these activities. On 02.12.2012,
accused No.5 asked accused No.1 about the preparations and
progress done to carry out the blasts in Hyderabad and also the
progress in procuring the explosives. On 16.12.2012 accused No.1
told accused No.5 that accused No.4 is trying to recruit new boys
into the Organization IM and accused No.4 is also trying to get a
house on rent in Hyderabad and once he gets the house on rent bomb
blasts will be carried out in Hyderabad. On 30.12.2012 accused
No.5 asked accused No.1 about the progress of carrying out blast in
Hyderabad to which accused No.1 replied that whether the place was
finalized to carry out the blast. Accused No.1 also told that
explosives would be available within one week. Accused No.1 also
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told accused No.5 that accused No.2 was asking about the
participation of accused No.5 in carrying out the blast. On
27.01.2013 accused No.1 informed accused No.5 that accused No.4
is leaving for Hyderabad to carry out the bomb blast for which
accused No.4 has requested accused No.5 to pray for the success of
the bomb blast in Hyderabad. On 07.02.2013 accused No.1 told
accused No.5 that accused No.4 had been searching for a rented
house and on the said date he has been successful in getting a rented
accommodation at Abdullapurmet near Ramoji Film City,
Hyderabad. On 11.02.2013 accused No.1 told accused No.5 that
accused No.2 has also reached Hyderabad and he is along with
accused No.4 and the accused No.3 is busy preparing in the
explosives. On 16.02.2013 accused No.1 informed accused No.5
that accused Nos.2 and 3 had left for Hyderabad to meet accused
No.4. On 17.02.2013 accused No.2 informed accused No.5 that all
necessary arrangement to carry out the blasts in Dilsukhnagar is
complete and only blessings of Allah is necessary for carrying out
the blasts successfully and requested accused No.5 to pray for the
success of the blast. Accused No.1 told accused No.5 that he has
instructed accused Nos.2, 3 and 4 to add 50 more detonators in the
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IEDs. This would help in proper explosion of IEDs. On 17.02.2013,
accused No.1 informed accused No.5 that some rental
accommodation may be taken in Nepal as it may be risky till return
of accused No.4 to the safe house for which accused No.5 replied
that he has arranged more than one rental accommodation in Nepal.
Accused No.1 further told accused No.5 that he would call accused
No.2 to Pakistan via Nepal after execution of blasts and till such time
accused No.2 should be arranged accommodation in Nepal. On
20.02.2013 accused No.1 told accused No.5 that blasts would be
conducted tomorrow i.e., 21.02.2013 and the explosive material was
also tested by conducting a test blast.
iv) As stated above, with regard to confession leading to
recovery through online chatting under Section – 27 of the Evidence
Act, both the panchas i.e., PWs.99 and 131 supported the version of
PW.81 coupled with Exs. P98, 99 and 101. Ex.P259 is the disclosure
statement of accused No.2 in which he stated that “I can show the
said chat discussion as mentioned above, if I am provided with a
computer with internet facility in the presence of witnesses and the
said chat discussion can downloaded from my email/chat IDs if a
printer is attached with the said computer as well”. Ex. P.260 is the
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disclosure statement of accused No.5, wherein he stated that “I can
show the said chat discussion as mentioned above, if I am provided
with a computer with internet facility in the presence of witnesses
and the said chat discussion can downloaded from my email/chat IDs
if a printer is attached with the said computer as well”. Ex.P261 is
the disclosure statement of accused No.5 made on 05.09.2013
wherein he stated that “If I am taken to Mangalore and Hyderabad, I
will identify and point out all the places of transactions which
occurred in conducting the twin blasts at Dilsukhnagar, Hyderabad
along with other places of receiving explosive used in Mumbai, Pune
and places of our visit to have food etc.”. Exs. P417 to P419
disclose that accused No.5 was staying at Nepal and accused No.2
also stayed with him. The above chat details under Exs.D9 to D13
also disclose that certain chatting was made from Nepal.
v) Exs.D9 to D13 are the e-mails dated 01.09.2013 addressed
to NIA, SP Anup Kuruvilla John by the Yahoo Incorporation, USA,
Ex.D14 is the details of Yahoo mail i.e., [email protected],
Ex.D15 is the relevant details of the I.P. addresses and time
pertaining to mail ID [email protected] sent by Yahoo
Incorporation, Ex.D16 is the details of Yahoo Mail i.e.,
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[email protected], Ex.D17 is the details of Yahoo Mail i.e.,
[email protected], Ex.D18 is the relevant details of the IP
addresses and time pertaining to mail ID [email protected] sent
by Yahoo Incorporation, Ex.D19 is the details of Yahoo Mail i.e.,
[email protected], Ex.D20 is the relevant details of the IP
addresses and time pertaining to mail ID muthumamu80@yahoo.
com sent by Yahoo Incorporation, Ex.D21 is the details of Yahoo
Mail i.e., [email protected], Ex.D22 is the relevant details
of the IP addresses and time pertaining to mail ID spent_those11
@yahoo.com sent by Yahoo Incorporation, Ex.D23 is the details of
Yahoo Mail i.e., [email protected], Ex.D24 is the relevant
details of the IP addresses and time pertaining to mail ID
[email protected] sent by Yahoo Incorporation, Ex.D25 is
the details of Yahoo Mail i.e., [email protected], Ex.D26 is the
relevant details of the IP addresses and time pertaining to mail ID
[email protected] sent by Yahoo Incorporation, Ex.D27 is the
details of Yahoo Mail i.e., [email protected], Ex.D28 is the relevant
details of the IP addresses and time pertaining to mail ID
[email protected] sent by Yahoo Incorporation, Ex.D29 is the
details of Yahoo Mail i.e., [email protected], Ex.D30 is the
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relevant details of the IP addresses and time pertaining to mail ID
halwa.wala @yahoo.com sent by Yahoo Incorporation, Ex.D31 is the
details of Yahoo Mail i.e., [email protected], Ex.D32 is the
relevant details of the IP addresses and time pertaining to mail ID
[email protected] sent by Yahoo Incorporation, Ex.D33 is the
details of Yahoo Mail i.e., [email protected] and it reveals the
login name as “a.haddad29” with registration IP address
110.44.120.39, Ex.D34 is the relevant details of IP addresses and
time pertaining to mail ID [email protected] sent by Yahoo
Incorporation, Exs.D35 to D38 are the mails dated 09.04.2013 sent
by Yahoo Incorporation to Anup Kuruvilla John, Ex.D39 is the mail
sent by Anup Kuruvilla John to Yahoo Incorporation.
vi) Perusal of Exs.D9 to D39 clearly reveal that accused
Nos.1 to 5 were using Email chatting and to that extent there is no
dispute since the accused are admitting by marking Exs.D9 to D39.
The contention of learned counsel for the accused that the evidence
of pre-offence and post offence cannot be considered is
unsustainable for the reason that the charge framed for conspiracy
commencing from 2010 and continued till 2013 February and even
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otherwise there is no bar for taking any evidence available prior to
the offence and subsequent to the offence in conspiracy cases.
vii) In Sajidbeg Asifbeg Mirza v. State of Gujarat22, the
Apex Court held that the relevance and admissibility of the
statement, if any, given by the accused before the media persons
shall be considered at the appropriate stage in the trial. In the present
case, evidence of PWs.81, 99 and 138 coupled with Exs.P98 to 107
and 259 to 261 clinchingly established the fact that recovery of e-
mail chatting beyond reasonable doubt at the instance of accused
Nos.2, 3 and 5 and further established that accused No.1 to accused
No.5 conspired by chatting to cause twin bomb blasts at
Dilsukhnagar. Therefore, it can be held that the prosecution
established its case beyond reasonable doubt that there was chatting
between accused Nos.1 to 5 to cause bomb blasts in Hyderabad prior
to twin bomb blasts.
38. The contention of the prosecution is that accused No.4
came to Hyderabad from Ranchi in pursuance of conspiracy and on
the directions of accused No.1. To prove the same, prosecution
examined PWs.54, 60, 82, 83 and 113.
22
. (2007) 1 GLH 400 (India)
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i) PW.82 is the resident of Ranchi. He deposed that he was
studying DME at Chennai. He met one Sameer when he was in
Ranchi. He was staying in the adjacent room in chotu lodge where
he was staying. They were conversing regularly and he informed
that he wanted to do MBA. He tried to get him admission in
Chennai but failed. He expressed that he wanted to study MBA in
Hyderabad. One of his cousin brothers Sharique Iqbal (LW448) was
studying Diploma in Hyderabad. Then he gave address and phone
number of his cousin to Sameer. Then Sameer went to Hyderabad
and met his cousin. His cousin brother informed that his friend
Sameer had met him in Hyderabad and was staying in his room. The
witness identified the said Sameer as accused No.4.
ii) PW83 deposed that during the year 2012 he was studying
in St. Mary College, Deshmuki Village, Batasingaram. He was
residing in a room along with his friend in Deshmuki Village. PW82
is his cousin brother, who was in Ranchi at the relevant time. In the
last week of January, 2013, PW82 called him and informed that his
friend by name Sameer was interested in studying MBA and he
would come to his place. PW82 asked him to show the College. The
said Sameer came to him two days after his cousin PW82 called him.
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After Sameer came, he stayed with them for 3 to 4 days. After four
days, he left to Ranchi. From there, he called his roommate who
informed that the said Sameer stayed for one day and left. This
witness identified the said Sameer as accused No.4.
iii) PW113, who is working with VRL Travels since 14 years,
deposed that he gave details of passengers who travelled between
Mumbai, Bangalore, Mangalore, Hyderabad, during February, 2013
under Ex.P202, which includes the details of passengers and also
buses during 01.02.2013 to 28.02.2013.
iv) PW.54, whose evidence is already extracted above,
deposed that one Brahmaiah constructed a house in Abdullapurmet
Village and entrusted the same to her and her husband (PW. 55) to
lease out the same and they let out the same to accused No.4. Her
husband has also deposed in the same lines as that of PW.54
corroborating the evidence of PW54.
v) PW60, an auto-rickshaw driver, deposed that he is residing
at Abdullapurmet in Plot No.99 and his neighbor Brahmaiah
constructed a house in Plot No.100 and that two or three persons
came on rent in the said house of Brahmaiah in the first week of
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February, 2013 including accused No.2 and he did not see accused
No.2 from the next day of bomb blasts.
vi) Perusal of the evidence of the aforesaid witnesses would
disclose that accused No.4 came from Ranchi, took house at
Abdullapurmet on rent in the first week of February.
vii) Whereas, it is contended by learned counsel for the
accused that it was referred as tin sheeted shed in 164 Cr.P.C by
PW.55. Therefore, there is a contradiction in the evidence of PW.54
and PW.55. There is no dispute that PW.55 referred to the said
house as tin sheeted shed, but tin sheeted sheds also useful for stay as
if houses or rooms. Therefore, this admission cannot be taken as
advantage by the accused as PW.55, 56 and 54 categorically stated
the presence of accused Nos.2 to 4 at the above said rented house.
Thus, the prosecution proved beyond all reasonable doubt with
regard to the aspect of accused No.4 coming from Ranchi to
Hyderabad and taken the house on rent at Abdullapurmet.
39. It is the contention of prosecution that accused Nos.2 and
3 came to Hyderabad from Mangalore and joined accused No.4 at a
rented house at Abdullapurmet and stayed there till the date of bomb
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blasts. It relied upon the evidence of PW.127 – Booking Clerk in
VRL Travels at Mangalore. He deposed that accused Nos.2 and 3
travelled on 09.02.2013 to Hyderabad. He identified accused Nos.2
and 3 stating that he travelled in VRL travels bus. Ex.P201 discloses
that accused No.2 pointed out the travels through which he travelled
from Mangalore to Hyderabad.
i) PW.60, an auto-driver, stated that he is residing at
Abdullapurmet in Plot No.99 and his neighbor Brahmaiah
constructed a house in Plot No.100. Two or three persons came on
rent in the said house of Brahmaiah in the first week of February,
2013 including accused No.2 and he did not see accused No.2 from
the next day of bomb blasts.
ii) PW80, who is the Technical Examiner of CDFD, deposed
that basing on the DNA fingerprints available on the articles (which
were seized from Mangalore Zephyr Heights) are matched with
DNA fingerprints of the articles of accused Nos.2 to 4 at
Abdullapurmet. Therefore, the evidence of PW.127, 54, 55, 60 and
80 coupled with Ex. P315 pointing out memo and Ex. P297 dairy
containing the handwriting of accused Nos.2 to 4 which were
compared by PW.80 clinchingly established the circumstances that
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accused Nos.2 and 3 came from Mangalore and joined accused No.4
at rented house at Abdullapurmet and stayed there till the date of
blasts. Therefore, it can safely be held that the prosecution proved
beyond all reasonable doubt that accused Nos.2 and 3 came to
Hyderabad from Mangalore and joined accused No.4 at rented house
at Abdullapurmet and stayed there till the date of bomb blasts.
40. PURCHASE OF PRESSURE COOKERS:
i) It is also the case of the prosecution that accused Nos.2 to 4
purchased big size pressure cookers from PW.58 one day prior to the
twin blasts. With regard to the same, evidence of PW.58 would be
discussed later while dealing with the role of accused No.6.
However, evidence of PW.78, Technical Officer ‘B’ DMRL, is
relevant. He deposed that the aluminium vessels available in the
shop of PW.58 and the metal pieces seized from the scenes of
offence are matched under Ex.P88. With regard to recovery of
pressure cooker handles and whistles in the house at
Abdullahpurmet, where accused Nos.2, 3 and 4 stayed, PW.91, who
is working as Senior Tax Assistant, Office of Commissioner of
Income Tax – I, deposed that accused No.2 led PWs.91 and 138 to
Abdullahpurmet, where MO.161 (handles of two cookers) and
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MO.162 (two whistles of cookers) were seized in their presence vide
Exs.P189 to 191 proceedings. The evidence of PW78 coupled with
Ex. P198 invoice shows that the owner of the shop purchased the
Ganga Cookers from Ganga Company and sold the same to the
accused and the accused failed to give any explanation with regard to
the possession of MO.161 (handles of two cookers) and MO.162
(two whistles of cookers).
ii) In view of the above evidence, an inference can be drawn
that they belong to the said pressure cookers which were removed
before using the same for the twin bomb blasts. Further, by virtue of
the aforesaid evidence, an inference can also be drawn that the said
pressure cookers were purchased not for domestic purpose and that
the same were used in the twin blasts because the accused did not
give any explanation in their examination under Section – 313 of
Cr.P.C. as to why they purchased two big size pressure cookers.
Usually, for domestic purpose of three persons, one liter cooker is
enough but not big size cookers but they did not give any explanation
on the said aspect and the only inference that could be drawn that
only to use the same in the twin blasts, they purchased those two big
cookers. Moreover, Ex.P190 discloses that these items i.e., damaged
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trolley bag with some pieces of clothes on it in the garbage and four
long handles and two short handles of pressure cookers and two
whistles, which draws the inference that they are not purchased for
cooking purpose and the handles, whistles were removed and they
are purchased for the preparation of bombs. Having considered the
above evidence, it can safely be concluded that accused Nos.2 to 4
purchased the aforesaid cookers of big size with a view to use them
in the twin blasts.
41. CONDUCTING TEST BLAST:
i) It is the specific case of the prosecution that one day prior to
the incident, accused Nos.2 to 4 conducted test blast near
Abdullapurmet. To prove the same, it had relied upon the evidence
of PW92, Senior Assistant in MDO Office, Saroornagar. According
to him, accused No.2 informed that he would show them the places
where they carried out the test blast and other places. They
proceeded to Abdullapurmet and went towards Deshmukh Village
and prior to reaching the village there was a hillock to the right.
Accused No.2 asked them to follow him, he went up to the hill and
showed the place where a test blast was conducted vide Ex.P193
proceedings. Exs. P194 to 196 are the said three sketches. MO.163,
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which is aluminum piece of detonator shell, was seized. MO.164,
which is part of detonator with two white colour insulated wires,
were seized. MO.165 is the control soil sample. MO.166 is another
suspected soil sample seized at the hillock site. MO.167 is the part
of detonator with two white colour insulated wires. The admissible
portion in Ex.P192-A discloses as “If I am taken to places, 1) test
blast place / spot about 5 to 6 kms away from Abdullapurmet. 2)
Place of shop where we purchased plastic sheet at Putli Bowli 3)
Ticket booking places at Lakdi- ka-pool, I can identify and point out
the remaining places of transactions which occurred in conducting
the twin blasts at Dilsukhnagar, Hyderabad”.
ii) Thus, the evidence of PW.92 is also corroborated with the
evidence of PW.138 – Investigating Officer, who deposed that
accused No.2 disclosed in the confession statement that they
conducted test blast at Abdullapurmet and that accused No.2 led
PWs.92 and 138 to the spot of test blast. Accordingly, a panchanama
was conducted under Ex.192-A and MO.163, which is aluminum
piece of detonator shell, was seized. MO.164, which is part of
detonator with two white colour insulated wires were seized,
MO.165 is the control soil sample, Mo.166 is another suspected soil
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sample seized at the hillock site, MO.167 is the part of detonator
with two white colour insulated wires were seized at the instance of
accused No.2. Therefore, when the test blast is proved under Section
– 27 of the Evidence Act, burden is on accused No.2 since he got
knowledge about the test blast so he has to account for the test blast
as to who conducted the test blast, but he did not give any
explanation. As such, an inference can be drawn that it is the accused
No.2 and other accused, who conducted the test blast at
Abdullapurmet. Therefore, it can be held that accused Nos.2 to 4
conducted test blast at Abdullapurmet.
42. PURCHASE OF CYCLES:
i) It is the specific case of prosecution that accused Nos.2 to 4
had purchased MO.5 & 6, Cycles, which were used in twin bomb
blasts. To prove the same, it relied upon the evidence of PWs.56 and
57 and the same would be discussed later while dealing with the role
of accused No.6. However, the evidence of PW.57, who is running a
puncture shop at Malakpet Gunj, is also relevant. He deposed that
two days prior to the bomb blasts, he purchased an old cycle from
PW.61 – Mallaiah, who is hamali in Malakpet Gunj. The said cycle
was repaired by replacing with a big handle and Ganga tyre.
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Accused Nos.2 and 4 came to him to purchase the said cycle (MO.5)
two days prior to the bomb blasts for Rs.1,400/- and they gave 500/-
rupees as advance and on the next day they paid Rs.900/-.
ii) PW61, a Hamali at Malakpet Gunj, deposed that he owned
a cycle which he had sold to PW.57, 15-20 days prior to
Dilsukhnagar Bomb blast for Rs.300/-. PW56, who is running Auto-
ricksha, deposed that previously he used to do business by
assembling cycles by buying parts of the cycle from Lohe-ki-
mandi. On Thursday i.e., 21.02.2013, accused Nos.2 and 3 came to
him and asked for purchasing a cycle (MO.6) for Rs.1,500/- and
purchased the same.
iii) PW114, learned III Metropolitan Magistrate at Hyderabad,
deposed that PWs.56 and 57 identified MOs.5 and 6 under property
test identification proceedings held vide Ex. P46. Ex.P35 is the
seizure panchanama for seizure of damaged cycle MO.6, MO.18
damaged half cycle tyre, MO.19 damaged rare rim, MO.20 damaged
rare mudguard, MO.21 damaged fork, MO.22 is one rear part of
frame, MO.23 is cycle stand and its broken pieces with its spring,
MO.24 is two rear carriage supporting rods and pieces of carrier,
MO.25 is cycle spokes, MO.26 is the piece of cycle chain, MO.27 is
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the cycle seat springs and supporting rod. Ex.P38 is seizure
panchanama for seizure of MO.41 is the pieces of spokes of bicycle
and other nails collected from scene of crime (marked as Q8),
MO.42 is the pieces of metal of bicycle found collected from scene
of crime (marked as Q9), MO.43 is the pieces of mudguard attached
with tyre of bicycle collected from scene of crime (marked as Q10),
MO.44 is the cycle tyre & tube pieces and break rubber collected
from scene of crime (marked as Q11), Ex.P27 is the seizure
panchanama for seizure of the damaged cycle MO.5. Ex. P338
shows the cycle part, Ex.P353 shows another cycle part with handle,
Ex. P354 also shows cycle part with handle, Ex. P169 shows cycle
part, Ex.P163 also shows cycle part.
iv) Thus, the aforesaid three panchanamas and photographs
were proved through the panch witnesses, photographer and the
Investigating Officer and thereby it can safely be inferred that
accused Nos.2 and 4 purchased MO.5 from PW.57 and accused
Nos.2 and 3 purchased MO.6 from PW56. In view of the same, the
prosecution proved its case that accused Nos.2 and 4 purchased
MO.5 from PW.57 and accused Nos.2 and 3 purchased MO.6 from
PW.56 prior to the bomb blasts and the same was used in the twin
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blasts beyond reasonable doubt. Even during examination of
accused under Section – 313 of Cr.P.C, accused did not give any
explanation as to why they purchased the second hand cycles.
43. It is also the case of prosecution that MOs.5 and 6 Cycles
were parked at Malakpet Station by accused Nos.2 to 4. To prove
the same, the prosecution relied upon the evidence of PW.67 –
employee of PW.66 – parking contractor. His evidence is also
discussed above elaborately.
i) However, at the cost of repetition, his evidence is discussed
herein. He deposed that on 20th February about three years ago at
about 12-00 noon three persons came to the parking with a cycle and
parked the said cycle in the parking area. All the three persons
appeared to be stylish wearing Jean pants and T-shirts. One person
was six feet height and two persons are in medium height of 5.5.
After parking the said cycle all the three persons left by an auto. On
21st February at about 01-00 pm., two persons out of above said three
persons again came to his scooter parking with another cycle and
parked the second cycle in their parking stand. PW66 (parking
contractor for Railways) stated that he had taken the parking contract
of Malakpet Railway Station and he had given the said contract for
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management to PW.67 on a monthly target basis. During January and
February, 2013, the said Venkatesh was taking care of the parking
contract in Malakpet Railway Station and thereafter he left. Thus, it
can be held that the prosecution established the fact that accused
Nos.2 to 4 parked MOs.5 and 6 at Malakpet Railway Station.
44. It is also the contention of prosecution that accused Nos.2
to 4 left the house at Abdullapurmet on the day of blast by handing
over keys to PW.54 saying that they were leaving to Mumbai. To
prove the same, the prosecution relied upon the evidence of PW.55.
He deposed that on the date of bomb blasts at around 3 to 4 p.m.,
accused No.4 handed over the keys of the said house to him stating
that his mother was not feeling well and he was going to Mumbai.
The said evidence was corroborated with the evidence of PW54. On
the date of blasts, accused left the house at Abdullapurmet stating
that they are leaving for Mumbai and handed over the keys. Thus,
the evidence of PWs.54 and 55 clinchingly established the fact that
accused Nos.2 to 4 left the rented house at Abdullapurmet on the day
of twin bomb blasts. In view of the same, it can also be held that the
prosecution established its case that on the date of blasts, accused
Nos.2 to 4 left the rented house at Abdullapurmet.
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45. RECOVERY OF EXPLOSIVES AT MANGALORE:
i) It is the contention of prosecution that explosive material
recovered from the rented house at Zephyr Heights, Mangalore,
where accused Nos.2 and 3 stayed, was tallied with the explosives
used in the twin blasts. The prosecution relied upon the evidence of
PW141 – B.C.Ravinder, FSL, Madiwale. He deposed that he
compared the items collected the following items at Zephyr Heights.
MO.174 is one paper packet containing Ammonium Nitrate Fuel Oil
cover (ANFO,~ 250-300 GM), one paper packet containing IDEAL
powder 90 gel explosive was sent to FSL, one polythene cover
containing three electrical detonators which were diffused; MO.175
is the remnants of the diffused detonators; MO.176 is one paper
packet containing white polythene cover use to wrap the ANFO
Bottle; MO.177 is one polythene cover containing one Red
Polythene cover use to wrap the ANFO Bottle; MO.178 is one
polythene cover containing one paper used to wrap the IDEAL 90
gel explosive; MO.179 is one polythene cover containing 1 ½ “gum
tape; MO.180 is one polythene cover containing GL-one brown gum
tape; MO.181 is one polythene cover containing hammer and saw
blade, one polythene cover containing one digital multimeter -CE-
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Master, one polythene cover containing timer devises with connected
wires, circuits with battery connections (Electrical Detonators), one
polythene cover containing soldering (yellow wire with black, red
and white color), one polythene cover containing 10 batteries of 09
volts, one polythene cover containing three packets of wires (yellow,
orange, green and blue in colour), one paper packet containing CK
electronic circuits-project board, one polythene cover containing
Diodes and one brown circuits, one polythene cover containing timer
(writ watch)-45 pieces, one polythene cover containing one pack of
batteries and connectors, one paper packet containing hairs collected
from the Maroon colour blanket lying on the floor of bedroom No.1,
one polythene cover containing one set of needle file set kit-06
needle (one is cut), one polythene cover containing small circuit
board (07) Pin (05) cutters (03) Hitech electrical solution (01) battery
connectors (03) saw blade (01), one polythene cover containing small
tool kit box, one polythene cover containing diodes, connected wires
etc with batteries, one paper packet containing one red comb with
black hairs collected from bedroom No.2, one paper packet
containing hairs collected from floor, one polythene cover containing
one multi-meter (mastech), one polythene cover containing Mobile
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parts and wires (Three circuits, two mobile handsets) and the
remnants at the scenes of offence of twin bomb blasts and came to
conclusion that both are one and the same and this aspect is also
supported by the presumption under Section – 43E of UAP Act.
ii) PW126 – Nithyanada Das, Revenue Inspector, Mulki,
deposed that accused No.2 voluntarily took them to Flat in an
apartment where he stayed earlier. The accused had taken them to
Zephyr Heights where Ex.P55 was drafted and all the articles
mentioned in Ex.P55 were seized in his presence. He also witnessed
production-cum-seizure memo under Ex.P56, wherein Ex. P57 lease
deed was seized. Thus, the prosecution established that the recovery
of these items was also proved by PW.126, panch witness and
PW.157 – Investigating Officer. Thus, the prosecution proved the
aforesaid contention.
46. RECEIPT OF HAWALA MONEY:
i) It is the further contention of prosecution that accused
Nos.2 to 4 received hawala money from WUMT. It relied upon the
evidence of PW.68 – Dilip Kumar, a Senior Sales Executive in
Centrum Direct Limited. He deposed that during the year 2012-2013
he worked in M/s.VKC Credit and Forex Private Limited as a Senior
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money to foreign countries. If money sent from foreign country a
MTCN (Money Control Transfer Number) is generated and the same
is given to the person receiving the money. Basing on MTCN
number the said person can withdraw the money from any of the
authorized money exchange centers by providing sufficient identity
proof and the document containing MTCN number. When a receiver
comes to them he has to fill in a TRM form giving particulars of
senders name, receivers name, amount and present address and
mobile number of the receiver. After providing the said details they
match the said details in their system and after being convinced
about the identity and other details, the receiver is given the money.
For money below 50,000/- the same is given in Cash and above
50,000/- it is given by way of cheque. On 20.09.2013 some NIA
officials from Hyderabad came to their office at Mangalore and
enquired about certain transactions of receiving money by some
persons and shown photographs. He identified one of the
photographs to be that of the person who had received money by
filling up the requisite forms and also ID proof was provided. The
said person had come to their out-let and transacted business of
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receiving money on three occasions and on all the three occasions
forms were filled up for withdrawing the money. After checking out
their record they learnt that the above said person transacted three
times, one is on 26.02.2013 and 20.03.2013 and lastly on 12.04.2013.
On two transactions dated 12.04.2013 and 20-03-2013 he was
personally present during transactions. But one Mr. Nitin Kumar
Shetty (LW234) and Chitrakshi Shetty were present for all the
transactions. On 20.09.2013 two taluk people (panchayathdars for
seizure) along with NIA police came and seized the documents and
prepared a statement. Ex.P59 is the seizure memo dated
20.09.2013. He also attested on Ex.P59 containing four sheets.
Ex. P60 TRM form containing three sheets of the transaction done on
26.02.2013 along with system generated receipt and copy of ID
provided by the receiver. Ex. P61 TRM form containing three sheets
of the transaction done on 20.03.2013 along with system generated
receipt and copy of ID provided by the receiver. Ex.P62 TRM form
containing three sheets of the transaction done on 12.04.2013 along
with system generated receipt and copy of ID provided by the
receiver. The three transactions were done at their out-let by Nabeel
Ahmed who had provided his identity proof and signed on the
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documents. The witness identified the said Nabeel Ahmed as accused
No.3 – Zia-ur-Rahman @ Waqas @ Javed @ Ahmed @ Nabeel
Ahmed.
ii) Insofar as receipt of hawala money from WUMT is
concerned, PW.124 – Branch Head of Supama Forex Pvt. Ltd.,
Mangalore, who transfers money in association with WUMT
Agency, deposed that accused No.3 filled in the said form with a
secret code and also provided his ID proof. The Money transfer
form is Ex.P402 filled up by the said accused No.3 and signed by
him. Ex. P403 is the photocopy of ID Proof. Ex. P404 is the receipt
issued by them. Ex. P405 is the seizure memo under which Exs.P402
to 404 were seized by the National Investigation Agency. After
verifying the details he had handed over the money to the said
persons.
a) PW.73 – Manager in WUMT deposed about the money
transactions done by accused No.3 thrice i.e., Rs.25,000/- on
16.07.2013, Rs.16,364/- on 08.08.2013 and Rs.25,000/- on
29.08.2013. On all the said transactions, he gave voter ID card with
his photograph. Ex. P76 is MTC form with photocopy of ID dated
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16.07.2013. Ex.P77 is MTC form with photocopy of ID dated
08.08.2013. Ex. P78 is MTC form with photocopy of ID dated
29.08.2013. The said person had taken the amount of Rs.25,000/- on
10.06.2012 in the name of Suleiman Sood. Ex.P79 is the computer
printout of MTC form scanned copy along with election ID card of
the receiver who received money under Exs.P76 to 78. Ex.P80 is the
register maintained by them in their outlet showing the details of
payments made to different individuals who received money for the
period from 16.09.2010 to 30.05.2014.
iii) Learned counsel for the accused contended that the receipt
of the aforesaid amounts refers to post-offence. But, there is no bar
to take the aforesaid evidence whether it is post-offence or pre-
offence in cases of conspiracy. Therefore, the evidence of the
aforesaid witnesses is admissible. Sometimes accused may receive
money after commission of offence. There is no explanation from
accused No.3 with regard to receipt of money. The eidence of
PW.73 is corroborated with the evidence of PW.142 – Investigating
Officer.
iv) Learned counsel for the accused also contended that doing
hawala business is illegal even according to PW.72. Therefore,
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Section – 319 of Cr.P.C has to be invoked and PW.72 arraigned as an
accused and be tried with accused Nos.2 to 6. Perusal of evidence
of PW.72 would reveal that he came to know that hawala business is
an illegal business and after knowing the same, he stopped it.
v) In Lokram v. Nehal Singh23, the Apex court held that
power of Court under Section – 319 of Cr.P.C is to be exercised
sparingly and for compelling reason to add a new person as an
accused. In the present case, there are no compelling reasons are
appearing, moreover PW.72 stated that he stopped hawala business.
Thus, it can be held that Section – 319 of Cr.P.C. need not be
invoked, whereas, learned Special Public Prosecutor contended that
Section – 319 of Cr.P.C can be invoked only in a case where there is
a prima facie material against the third party in connection with the
main offence.
vi) Therefore, the above evidence clinchingly establishes the
fact that accused Nos.2 to 4 received money through illegal
transactions by using fake IDs and also accused No.4 received
money from WUMT by using fake ID and no where they explained
as to why they used fake IDs.
23
. AIR 2006 SC 1892
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47. ACCUSED No.3’s EXPERTISE IN PREPARING
AND BLASTING OF LED:
It is the specific case of the prosecution that accused No.3 had
knowledge in assembling IED. To prove the same, it relied upon the
evidence of PW.112 – Assistant Director, Explosives at Central
Forensic Science Laboratory, Ramanthapur, Hyderabad, is relevant.
He deposed that he witnessed the disclosure and IED demonstration
of accused No.3 at CRPF Camp at Hakimpet. Accused No.3
volunteered and stated that if he was provided with different
components of Improvised Explosive Device (IED), he would
demonstrate as to how the bomb would be made and accordingly
different components required for assembling an IED were provided
to the said accused and accused No.3 demonstrated the preparation
of IED bomb. After completing the process of assembling a bomb,
the accused placed a bulb in place of explosive substance. The bulb
glowed which indicated that circuit required for a bomb to explode
has been completed under disclosure and IED demonstration memo
is Ex. P331 containing three sheets on which he had signed. MO.172
is the assembled IED by accused No.3 during the demonstration
process on 08.06.2014. MO.173 is the sealed cover containing the
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identified by the number BI1309422908G embossed on it (made in
China). Therefore, keeping in view the evidence of PW.112 coupled
with MOs.172 and 173, it can be held that accused No.3 has got
knowledge in preparing IED.
48. RETRIEVAL OF JIHADI MATERIAL ETC.:
i) It is also the contention of learned Special Public Prosecutor
that during investigation, the Investigating Officer retrieved Jihadi
material, draft e-mails on the letter head of IM and also fake IDs
used by accused Nos.2 to 4 from the Laptop of accused No.6 at his
instance and the same would prove the commission of aforesaid
offences by the accused. To prove the same, prosecution relied upon
the evidence of PW.111 – Senior Assistant, Office of the Collector,
Hyderabad District. He deposed that on their questioning, accused
No.6 had shown the information stored in the computer and he
opened certain documents by using passwords under Ex. P326 (8
sheets) which is the disclosure of accused No.6. In view of the same,
an inference can be drawn that the prosecution proved the case even
by collection of material i.e., retrival of Jihadi material, draft e-mails
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from the laptop of accused No.6.
49. ROLE OF ACCUSED No.6 IN COMMISSION
OF OFFENCES:
i) Learned counsel for accused No.6 contended as under:
(a) The name of accused No.6 was not there in the FIR, charge
sheet and first supplementary charge sheet.
(b) His name was added in the second supplementary charge
sheet.
(c) Testimony of PW.81 – expert is not trustworthy. His evidence
has no legal sanctity.
(d) Sanction proceedings issued vide Exs.P393, 394 and 395 are
not in accordance with the procedure laid down under law.
(e) Criminal Conspiracy was not proved.
(f) IM did not make any claim against accused No.6.
(g) Prosecution failed to prove the allegations against accused
No.6 with regard to preparation of fake I.D. Cards in respect of
accused Nos.2, 3 and 5.
(h) Fake I.D. furnished to accused No.1, who in turn provided the
same to accused Nos.2, 3 and 5.
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(i) NIA committed irregularities with regard to FIR No.54 of
2011 and RC No.6 of 2011.
(j) Recovery and discoveries were not proved.
(k) There is no meeting of minds to convict accused No.6 under
Section – 120B of IPC.
(l) Prosecution failed to prove the connections to accused No.6
and other accused.
(m) There are serious contradictions in the version of prosecution
case.
(n) Arrest of accused No.6 is not proved in Crime No.54 of 2011
registered by the Delhi Special Police. In the said crime, there
is an allegation against him with regard to larger conspiracy.
In the present case also, the prosecution alleged criminal
conspiracy against accused No.6. Therefore, registration of
second FIR with regard to same offence against accused No.6
is impermissible.
(o) There is violation of procedure laid down under Section – 43B
of UAP Act
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(p) Prosecution failed to examine any independent witness
including panch witnesses.
(q) Photocopy is not admissible and mere marking of an exhibit
does not dispense with its proof.
(r) Without considering the contentions of accused No.6, learned
trial Court did not decide the said aspect.
(s) Learned trial Court erred in considering and appreciating it as
admissible in evidence, although photocopies neither primary
nor secondary evidence.
(t) Prosecution did not supply clone copy of electronic evidence
and, therefore, there is violation of Section – 207 of Cr.P.C. in
respect of Exs.106, 106A and P107.
(u) Prosecution failed to comply with Section – 65B of the
Evidence Act insofar as Exs.P106A, 107 and 491.
(v) There is violation of Section – 293 (4) of Cr.P.C.
(w) Learned trial Court failed to consider the admissions made by
PW.140, Chief Investigating Officer in Crime No.54 of 2011 of
Delhi Special Cell. Without considering the same, learned trial
Court convicted accused No.6 and imposed capital punishment
of death penalty. In fact, his arrest was not proved.
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(x) Prosecution failed to obtain sanction in respect of accused No.6
for the offences under Sections – 3 and 4 of the ES Act. The
findings of the learned trial Court are perverse and not based on
the actual evidence including admissions of prosecution
witnesses. The learned trial Court having acquitted accused
No.6 for the offences under Sections – 10, 20, 38 (2) and 39 (2)
of UAP Act, convicted him for the offences under Sections –
120-B r/w 302, 121, 121-A, 122 r/w 109, 302 r/w 109 (2
counts), 307 r/w 109 (2 counts), 316 r/w 109, 436 r/w 109, 201
r/w 109, 466, 474, Sec.5 of ES Act r/w 109, Sec.3 of ES Act r/w
109, Sec.14 of Foreigners Act r/w 109, Sec.4 of PPD Act r/w
109, 16 of UAA r/w 109, 17 of UAA, 18 of UAA, 19 of UAA
r/w 109 of IPC. Therefore, prosecution failed to discharge its
initial burden that accused No.6 is a Member of banned
Organization.
(y) Benefit of doubt shall be given to accused No.6. There is no
direct evidence against accused No.6. Prosecution failed to
prove guilty of accused No.6 by way of circumstantial evidence.
Circumstances relied upon by the prosecution is not forming
complete chain and there is break of links.
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(z) Without considering the said aspects, learned trial Court
convicted accused No.6 and imposed capital punishment of
death penalty.
ii) Whereas, learned Special Public Prosecutor for NIA
contended as follows:
a) Prosecution can conduct further investigation and file
report against any accused. Accordingly, on conducting
further investigation and on coming to a conclusion that
accused No.6 is also part of criminal conspiracy, it has filed
second supplementary charge sheet against accused No.6.
b) The role played by accused No.6 is specifically mentioned
in the second supplementary charge sheet.
c) Prosecution examined PWs.111, 139, 140 and 147 to prove
guilt of accused No.6 and the role played by him in
commission of offences including criminal conspiracy.
d) On consideration of the said aspects, learned trial Court
convicted accused No.6 and imposed capital punishment of
death penalty.
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e) The role played by accused No.6 is specifically mentioned
by all the prosecution witnesses and the allegations levelled
against him are very serious in nature.
f) It is an organized crime.
g) There are 18 deaths and 131 injured.
h) Therefore, on consideration of the said aspects, learned trial
Court came to a conclusion that this is a rarest of rare case
and, therefore, imposed capital punishment. There is no
error in it.
50. In the light of the aforesaid rival submissions, it is
relevant to note that Section – 173 of Cr.P.C. deals with ‘report of
police officer on completion of investigation’. Sub-Section – (8) of
Section 173 of Cr.P.C. says nothing in this section shall be deemed
to preclude further investigation in respect of an offence after a
report under Sub-Section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports regarding, such
evidence in the form prescribed; and the provisions of Sub-Sections
(2) to (6) shall, as far as may be, apply in relation to such report or
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reports as they apply in relation to a report forwarded under Sub-
Section (2).
i) Thus, the Investigating Officer has power to file a report
under Section – 173 (8) of Cr.P.C. on conducting further
investigation. If during the course of investigation, Investigating
Officer comes to a conclusion that a person has committed an
offence, and on consideration of the statements of witnesses and
documents, he has power to file report in terms of Section – 173 (8)of
Cr.P.C. There is no irregularity in it.
ii) In the present case, the charge is filed against accused
Nos.2 and 5 on 14.03.2014 and first supplementary charge sheet was
filed against accused Nos.1, 3 and 4 on 15.09.2014. Thereafter, on
completion of further investigation, and on coming to a conclusion
with regard to the role played by accused No.6 in commission of
offences, the Investigating Officer laid second supplementary charge
sheet on 06.06.2015 against accused No.6. There is no irregularity.
iii) In Pooja Pal v. Union of India24, the Apex Court held
that an adverse deduction vis-à-vis the quality of investigation and/a
24
. AIR 2016 SC 1345
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trial trivializing the cause of justice, is however the essential pre-
requisite, for such remedial intervention by way of further
investigation, reinvestigation, additional evidence, retrial etc. to be
made objectively but assuredly for the furtherance of the salutary
objectives of the justice dispensing system as contemplated in law, it
being of paramount pre-eminence.
iv) In Dharam Pal v. State of Haryana 25, the Apex Court
held that Section – 173 (8) of Cr.P.C. empowers the office-in-charge
to conduct further investigation even after filing of a report under
Section – 173 (2) of Cr.P.C. if he obtains further evidence, oral or
documentary. Thus, the power of the Police Officer under Section –
173 (3) of Cr.P.C., is unrestricted. The Magistrate has no power to
interfere but it would be appropriate on the part of investigating
officer to inform the Court.
v) In the light of the aforesaid principle laid down by the
Apex Court, the contention of learned counsel for accused No.6 that
the name of accused No.6 is not there in the charge sheet and first
supplementary charge sheet, and there is no evidence against accused
25
. AIR 2016 SC 618
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No.6, even then, the Investigating Officer laid the second
supplementary charge sheet against him is unsustainable.
vi) As discussed above, at the cost of repetition, on
completion of further investigation and on coming to a conclusion
about the role played by accused No.6, the Investigating Officer has
filed the second supplementary charge sheet against accused No.6.
51. It is relevant to note that in the second supplementary
charge sheet, the Investigating Officer has specifically stated the role
played by accused N.6 in commission of offences.
52. The specific allegations levelled against accused No.6 are
as under:
i) He being a member of the proscribed terrorist organization,
IM, he had entered into a criminal conspiracy along with other
accused to wage war against India, they had decided to commit
terrorist attacks to kill innocent people, to disrupt the security of
India and to create terror and insecurity feelings in the minds of
common people, which are acts prejudicial to the integrity and
sovereignty of India. With a view to accomplish their intention, they
had decided to conduct bomb explosions in India.
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ii) Accordingly, accused No.6 used to download/scan voter
IDs, driving licenses and other documents from Google and prepared
fake documents with the help of Photoshop Software installed in his
Lap Top, to be supplied to terrorist of IM on the direction of Riyaz
Bhatkal and hisJeeja, Mohsin Chaudhary.
iii) Accused No.6 also used to mail and share through wiki
send, encrypted fake documents to Riyaz Bhatkal whenever he asked
him to do so. Accused No.6 delivered explosives for German
Bakery blast and Chinnaswamy Stadium, Bangalure blast at Pune to
Md. Ahmed Sidibapa @ Yasin Bhatka, accused No.5. Accused No.6
also arranged accommodation and mobile and SIM on fake IDs to
accused Nos.2, 3, 4 and 5. The same fake IDs were used by them to
procure SIM Cards, to hide their identity to evade the arrest, before
after the bomb blasts. Accused No.4 received money through
WUMT outlet on 27.12.2012 and three more occasions accused No.4
withdrawn Rs.25,000/- from WUMT outlet, Patna by producing the
fake ID supplied by accused No.6 in the name of Girish Joshi,
resident of Dehradun, Uttarakhand Election ID Card No.LJS –
2308815.
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iv) On the direction of Riyaz Bhatkal and Mohsin Chaudhary
in September, 2010, accused No.6 sent an e-mail to different media
houses in India at the time of Jama Masjid attack in Delhi and
Sheetla Ghat, Varanasi blast claiming the responsibility that attacks
was executed by IM. The draft PDF mail was sent by Riyaz Bhatkal
and Mohsin to accused No.6. Both times, e-mail were sent from
Mumbai.
v) Accused No.3 received money from WUMT Outlet,
Mangalore by producing fake IDs in the name of Nabeel Ali Ahmed
with his own photo five times before and after the bomb blast, which
was prepared by accused No.6 and sent through wikisend to accused
No.1, Riyaz Bhatkal sent the same to accused No.3, who requested
accused No.1 to prepare in the name of Nabeel Ali Ahmed,
childhood friend of accused No.3 at Pakistan.
vi) Accused No.6 communicated with other IM Members
through e-mails in encrypted and coded form so that the content of
their communication remains secret. He was in regular contact with
all accused, A1 and Mohsin Chaudhar over Internet chatting with
regard to preparation and supplying of the fake IDs and delivery of
explosives. Accused No.6 had provided fake IDs through ‘AxCrypt’
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messages. He involved in the conspiracy of twin bomb blasts in
Hyderabad providing fake IDs to several operatives of the IM. The
bomb explosions in which resulted in the death of 17 innocent
persons and death of unborn child in the womb of Y. Yasodha and
causing injuries to 126 persons and causing damages to several
vehicles and buildings.
53. To prove the aforesaid allegations against accused No.6,
the prosecution examined PWs.81, 111, 140 and 147.
54. EXPERT’S EVIDENCE:
i) PW.81, Scientist-C in Indian Computer Emergency
Response Team (ICERT), which is a Government Institution comes
under Ministry of Communication and IT, Government of India and
is a Nodal Agency for Government to address Cyber Security
Incidents in India and assisting in investigation of Digital Gadgets
pertaining to Cyber Crime Cases reported by Law Enforcement
Agencies, such as NIA, CBI, Delhi Police etc.
a) He further deposed that on 02.09.2013, 2 Officers from
NIA came to ICERT to assist for extraction of e-mail and web-chat
messages from IDs: [email protected], hbahaddur29@yahoo.
com, [email protected] and [email protected]. The said
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e-mail IDs/web-chat ID have been regularly accessing from Nepal.
After arresting accused person, Md. Ahmed Siddibaba @ Yasin
Bhatkal, NIA was trying to access aforesaid e-mail IDs/web-chat IDs
from India. Yahoo mail server identifies the system is having IP
address which belongs to India, therefore, Yahoo mail server
assuming that a hacker is trying to access these accounts, as such,
Yahoo server automatically asks security questions as a second level
authentication which is mandatory according to security policy of
Yahoo. The NIA officials informed him that the aforesaid accused
forgot his security questions which were posed by Yahoo server, as
such the e-mails pertaining to the aforesaid IDs of accused could not
be accessed.
b) He further deposed that they installed ‘Team viewer’ and
as per procedure it was launched from the local system and entered
system ID and password of Remote Computer Terminal. The session
has been successfully established between the two computers.
Thereafter, he asked the accused person to enter his credentials to
mail ID [email protected] and they have successfully logged
into accused e-mail ID.
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c) During cross-examination, he has admitted that there were
no mail communications noticed in the Inbox folder, draft folder but
there was one mail from ‘lovesam361’ was noticed in the sent items
folder which contains one encrypted attachment file called ‘diy.zip’
and this would open using the password ‘59455945’. During his
presence, Investigating Officer asked the accused about the sender
‘lovesam361’ and accordingly accused replied that the said mail
belongs to Riyaz Bhatkal. All the messages and chart details and
attachments pertaining to the aforementioned four e-mails are within
the exclusive knowledge of accused person. Ex.P98 is the
panchanama drafted during the extraction process. NIA police
requested to carry out forensic analysis of the digital evidences were
seized from accused No.5. In the last week of March, 2014, the
ACP, Delhi Police Special Cell, New Delhi requested Director
General, ICERT for extraction of content of e-mail communication
and chat messages of the mail ID pertaining to Mr. Md. Tahsin Aktar
@ Monu. Accordingly, DG, ICERT authorized him to assist the said
Police.
ii) PW.111, an independent witness, deposed regarding
disclosure of accused No.6 and retrieving the fake IDs in the name of
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Mr. Girish Chandhra Josh and others from the hard disk at CRPF
Centre on 14.04.2015. Ex.P326 containing 8 sheets is disclosure of
accused No.6 and Ex.P327 containing 17 sheets is printouts of
scanned copies. Nothing contra was elicited during cross-
examination.
iii) PW.140, the Chief Investigating Officer in Crime No.54
of 2011 deposed about collection of chat details of accused Nos.1
and 4. He further deposed that on 06.01.2013, there were specific
chat between accused No.4 and accused No.1 regarding arranging
explosives. With regard to chat on 10.01.2013, accused No.1
informed accused No.4 that Daniyal (accused No.2) and accused
No.3 were about to receive explosives and accused No.4 will have to
leave for a new place soon.
a) He further deposed on 06.09.2014, he arrested accused
No.6 from Saharanpur, Uttar Pradesh. At the time of his arrest, a
total 19 electronic devices were recovered from his possession
including a DELL Laptop, mobile phones, USB-stick, Micro SD
Card etc. During his interrogation, accused No.6 revealed that his
responsibility as a member of IM was for preparing forged identities,
receiving and delivering Hawala Money, explosives and composing
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e-mails whereby his organization used to take claim for various
terrorists strikes in the Country. Accused No.6 revealed that he had
sent threatening e-mail in 2008 after the Varanasi Blasts which were
investigated by Uttar Pradesh Police and in 2010 after Jama Masjid
Blast of Delhi which have been investigated by him.
b) He further deposed that accused No.6 disclosed several e-
mail and chat IDs over which he was in communication with accused
No.1 and others. As per the analysis of laptop recovered from
accused N.6, the voters ID in the name of Girish Joshi was used by
accused No.4 for many financial transactions and the same was
prepared by him. From the same laptop, many other forged voter
IDs bearing photographs of accused Nos.2 and 3 and the same were
also prepared by him. Ex.P439 is the seizure memo at the instance
of accused No.6.
c) During cross-examination, he has admitted that he did not
give any certificate under Section 65-B of the Evidence Act in FIR
No.66 of 2010 of Jama Maszid Police Station.
iv) PW.147, an independent witness, deposed regarding
disclosure statement of accused No.6.
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v) Apart from the aforesaid evidence the prosecution has also
filed Ex.P326 – disclosure statement of accused No.6 marked through
PW.111, Ex.P451 – disclosure statement of accused No.6 marked
through PW.147. Prosecution also filed Ex.P439 – seizure memo for
recovery under Section – 100 of Cr.P.C. in Crime No.54 of 2011.
Ex.P106 is the digital forensic analysis report and Ex.P106A is
original report to Ex.P106 received from ICERT along with covering
letter in respect of 19 electronic devises seized at the best of accused
No.6 in Crime No.54 of 2011. The prosecution has also placed
reliance on Ex.P316 – disclosure panchanama dated 14.04.2015,
Ex.P541 – supplementary disclosure panchanama dated 16.04.2015
and Ex.P395 – sanction under Section 45 of UAP Act.
vi) According to learned counsel for accused No.6,
prosecution failed to prove criminal conspiracy against accused
No.6 and that prosecution failed to prove connection of accused
No.6 with other accused. There were no meetings of mind. He
relied upon the decision in Yogesh14.
vii) In the light of the aforesaid submissions, it is relevant to
note that Section 120-A of IPC deals with ‘criminal conspiracy’, and
it says that when two or more persons agree to do, or cause to be
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done: (i) an illegal act, or (ii) an act which is not illegal by illegal
means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
viii) Section – 120-B of IPC deals with ‘punishment for
criminal conspiracy’. To bring home the charge of ‘criminal
conspiracy’ within the ambit of Section – 120-B of IPC, it is
necessary to establish that there was an agreement between the
parties for doing an unlawful act. It is no doubt true that, it is
difficult to establish ‘criminal conspiracy’ by direct evidence.
Therefore, from established facts, an inference could be drawn but
there must be some material from which it would be reasonable to
establish a connection between the alleged conspiracy and the act
done pursuant to the said conspiracy. The said principle was also
laid down by the Apex Court in Vijayan v. State of Kerala 26.
26
. (1999) 3 SCC 54
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ix) In Hardeo Singh v. State of Bihar27, the Apex Court held
that in the absence of any reasonable evidence that at least two brains
had consulted the offence, a charge of conspiracy cannot be
sustained. There is no doubt that merely on the basis of suspicion of
informant about conspiracy of accused to commit alleged crime,
accused cannot be convicted for the offence under Section – 120B
of IPC as held by the Apex Court in Abdul Sattar v. State of U.P. 28.
x) In the light of the aforesaid principle laid down by the
Apex Court, as discussed above, on conducting further investigation
and on coming to a conclusion with regard to the role played by
accused No.6, the Investigating Officer has filed second
supplementary charge sheet against accused No.6. The allegations
mentioned therein are specifically mentioned in the second
supplementary charge sheet. To prove the same, prosecution
examined PWs.81, 111, 140 and 147 and the aforesaid documents.
Prosecution also placed reliance on the recoveries and discoveries as
stated above. On consideration of the said aspects only, learned trial
Court recorded conviction against accused No.6.
27
. (2000) 5 SCC 623
28
. 2001 Crl.L.J. 676 (All.)
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55. With regard to the contentions of learned counsel for
accused No.6 that accused No.6 name is not there in FIR, charge
sheet and first supplementary charge sheet and that in confession
statement of accused Nos.2 and 5 (Exs.P252 and P254); there is no
utterance of name of accused No.6; merely accused No.6 was
arraigned as an accused on the basis of alleged recovery at the best
of accused No.6 after his arrest in Crime No.54 of 2011 on
06.09.2014; that prosecution failed to prove the role played by
accused No.6 with regard to criminal conspiracy and that connection
between accused No.6 and other accused are baseless and
unsustainable. As discussed above, in the second supplementary
charge sheet, there is specific reference with regard to the role
played by accused No.6. PW.140 specifically deposed about the
role played by accused No.6 in commission of offence.
56. It is relevant to note that accused No.6 failed to elicit
anything contra from the aforesaid witnesses. Thus, accused No.6
cannot contend that the prosecution failed to prove criminal
conspiracy against him beyond reasonable doubt.
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57. As discussed above, there are specific allegations/overt
acts against accused No.6 that he has provided fake IDs to accused
Nos.2 to 5. The same are based on recovery of fake IDS from the
DELL laptop of accused No.6 in Crime No.54 of 2011 as mentioned
in Ex.P439 – seizure memo. There is specific allegation against
accused No.6 that accused Nos.2 and 3 used the said fake IDs for
receiving Hawala money from the WUMT outlet. There is also
specific allegation against him that on the instructions of accused
No.1, he has purchased the said DELL laptop in the year 2010 itself
in Mumbai. Therefore, accused No.6 cannot contend that he is
innocent and he was implicated in the present case falsely.
58. Learned counsel for accused No.6 further contended that
contents of second supplementary charge sheet and depositions of
PWs.81, 111, 140 and 147 and the documents relied upon by the
prosecution lack the ingredients of ‘criminal conspiracy’. He would
further contend that prior knowledge of criminal conspiracy is an
important ingredient of Section – 120-B of IPC and the same is
lacking in the present case. To prove knowledge, the prosecution has
to produce sure and safe evidence. In the present case, the
prosecution failed to produce the same.
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59. In the light of the aforesaid submissions, it is relevant to
note that to prove the said knowledge and that accused No.6 prepared
fake IDs, provided the same to accused Nos.2 to 5 and basing on the
said fake IDs, they received hawala money from WUMT outlets,
Exs.P105 is the chart transcriptions extracted under Ex.P104 by the
prosecution. It contained conversation among accused Nos.1 to 5 in
respect of preparation, commission, planning and execution of
offence.
60. Perusal of Ex.P105 – chart transcriptions would reveal that
it contains chart communication in respect of criminal conspiracy of
both pre and post bomb blasts among accused Nos.1 to 5. Therefore,
the contention of accused No.6 that Ex.P105 is silent with regard to
role of accused No.6 cannot be accepted. Therefore, the decisions
relied upon by learned counsel for accused No.6 in State of
Maharashtra v. Somnath Thapa 29 and Mohmed Amin @ Amin
Choteli Rahim Miyan Shaikh v. CBI through its Director 30 are of
no use.
29
. AIR 1996 SC 1744
30
. Crl.A. No.473 of 2007 (SC), decided 18.11.2008
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61. With regard to other contention of learned counsel for
accused No.6 that whether Court can hold a person guilty for
criminal conspiracy on the allegation of providing fake IDs to other
accused, as discussed above, in the present case, it is the specific
case of the prosecution that the accused conspired together, hatched a
plan together and blasted bombs at A1-Mirchi Center and 107 Bus-
stop, wherein 18 deaths occurred and 131 people were injured. It is
an organized crime. Accused No.6 prepared fake IDs, basing on
which accused Nos.2 to 5 used the same and received Hawala money
from WUMT outlet. Therefore, accused No.6 cannot contend that he
has no knowledge that accused Nos.2 to 5 will use the said fake IDs
as part of criminal conspiracy. He cannot contend that he is not the
Member of the said criminal conspiracy and he is not a party to the
crime to do or cause to illegal act of bomb blasts.
62. It is relevant to note that in explanation to Section – 120-A
of IPC, it is mentioned that it is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely incidental to that
object. In the light of the said explanation, accused No.6 cannot
contend that he is not a Member of the said criminal conspiracy and
not party to the said agreement. At the cost of repetition, there is
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specific allegations/overt acta against accused No.6 that he has
prepared fake IDs, supplied to accused Nos.2 to 5, to avail hawala
money from WUMT Outlet.
63. On consideration of the said evidence, learned trial Court
gave a specific finding that accused No.6 criminally conspired with
other accused, prepared fake IDs, supplied to them as part of
criminal conspiracy to receive money from hawala. The said money
was used in execution of said criminal conspiracy. Learned trial
Court also considered that in a matter like this, there would not be
any direct evidence and accused will execute such criminal
conspiracy secretly. Therefore, relying on the circumstantial
evidence, learned trial Court recorded conviction against accused
No.6. There is no error in it. In the light of the said discussion, the
decisions relied upon by learned counsel for accused No.6 in State
(Government of NCT of Delhi) v. Nitin Shah31, Subramaniam
Swamy v. A. Raja 32, Praveen alias Sonu v. State of Haryana 33,
Yogesh14 and State (NCT of Delhi v. Navjot Sandhu34 are of no
use. In the said cases, there are vague and bald statements against
31
. AIR SCW 5347
32
. (2012) 9 SCC 257
33
. AIR 2022 SC (Cri.) 280
34
. AIR 2005 SC 3820
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accused therein and that there are few bits here and there. But, in the
present case, the prosecution established the role played by accused
No.6 in preparation of fake IDs and supplying the same to other
accused for the purpose of availing money through hawala to
execute criminal conspiracy. Therefore, accused No.6 cannot place
reliance on the aforesaid decisions. The facts of the said cases are
different to the facts of the present case. In the present case, there is
allegation of conspiracy and it is an organized crime.
64. In the present case, accused Nos.2 and 5 were arrested in
RC.No.6/2012/NIA-DELHI, whereas accused Nos.3 and 4 were
arrested in Crime No.54 of 2011 by Special Cell of Delhi Police.
Accused No.6 was also arrested in Crime No.54 of 2011 by the
Special Cell of Delhi Police.
i) It is relevant to note that RC.No.6/2012/NIA-DELHI was
registered on 10.09.2012 at NIA Police Station, New Delhi, and in
the said case also, there is allegation of criminal conspiracy hatched
by IM. In the present case, the allegation against accused No.6 is
with regard to criminal conspiracy and bomb blasts. Therefore,
accused No.6 cannot contend that with regard to larger conspiracy
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and registration of second FIR is impermissible. The allegations in
the aforesaid crime are different to the allegations made in the
present crime. In the present case, there is specific allegation against
accused No.6 that he has prepared fake IDs, and supplied the same to
other accused to enable them to receive money in execution of
criminal conspiracy of bomb blasts.
65. With regard to the contention of learned counsel for
accused No.6 that Exs.P440 and 441, which are explanation of
accused No.6 regarding articles seized under Ex.P439 and disclosure
statement made on 06.09.2014 in Crime No.54 of 2011 have no
evidentiary value of recovery and discoveries to prove criminal
conspiracy against accused No.6 in the present case. Ex.P438-A is
the data retrieved from the chat IDs and e-mail IDs disclosed by
accused No.6 and the same was transferred to a sterile DVD and
handed over along with certificate. The same was seized through
seizure memo containing thirteen (13) sheets. Ex.P106-A is the
original report to Ex.P106 received from ICERT (22 sheets) along
with covering letter. Ex.P439 is the seizure memo at the instance of
accused No.6, details of articles mentioned in Ex.P439 were
recovered on 06.09.2014 containing 5 sheets. Ex.P440 is the
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explanation of accused No.6 regarding the articles seized under
Ex.P439 containing 7 sheets. Ex.P441 is the disclosure statement
containing 4 sheets which was made on 06.09.2014. Ex.P442 is the
supplementary disclosure statement of accused No.6 giving details of
chat IDs and e-mails IDs etc., containing two sheets which was
conducted on 11.09.2014. Ex.P487 is the certified copy of e-mail
extracted from the pen-drive which was in possession of accused
No.6.
i) Like-wise, Ex.P488 is the certified copy of e-mail sent by
accused No.6 at the time of Jama Masjid Blast in the year 2010
carried out in Delhi. Ex.P489 is the certified copy containing 17
sheets relating to customer application form in the name of Purva
Shinde, identity proof and specimen signatures. Ex.P490 is the
certified copy of Central Forensic Scientific Laboratory report of
Handwriting Expert containing five sheets. Ex.P491 is the certificate
under Section – 65B of Evidence Act in respect of Ex.P105. Ex.P492
is the certificate under Section – 65B of the Evidence Act issued in
respect of Ex.P105. By producing the said documents and
examining the aforesaid witnesses, the prosecution proved guilty of
accused No.6, role played by him in commission of offence beyond
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reasonable doubt. On consideration of the said aspects only, learned
trial Court recorded conviction against accused No.6. In the light of
the same, learned counsel for accused No.6 cannot contend that a
fact already discovered from other sources cannot be discovered
afresh even if relevant information is extracted from the accused.
Thus, the facts in Thimma v. State of Mysore35 relied upon by
learned counsel for accused No.6 are altogether different to the facts
of the present case.
66. Accused No.6 was arrested by Special Cell of Delhi
Police on 06.09.2014 from Sharanpur Railway Station, Uttar
Pradesh. Memo of arrest is also field by the prosecution and the
same was marked. In the present case, NIA arrested accused No.6
by way of producing PT warrant. Thus, learned counsel for accused
No.6 cannot contend that the prosecution failed to prove arrest of
accused No.6 in the present case.
67. It is also apt to note that the arrest of accused No.6 was
affected and nineteen (19) electronic devises including DELL Laptop
were seized from accused No.6. Therefore, learned counsel for
accused No.6 cannot contend that the said recoveries and discoveries
35
. AIR 1971 SC 1871
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were not made from accused No.54 of 2011. In a matter like this,
accused No.6 cannot place reliance on the information obtained by
him under Right to Information Act, 2005 (for short ‘RTI Act‘), to
show that there was no arrest from Sharanpur Railway Station.
68. In a matter like this, minor omissions and contradictions
can be ignored. As discussed above, accused No.6 cannot place
reliance on the faulty/defect investigation as a defence and seek
acquittal.
69. It is relevant to note that 69 Articles including 19
electronic devices which include DELL Laptop were seized under
accused No.6 under Ex.P439 – seizure memo. The details of the
same are specifically mentioned in the said seizure memo.
Exs.P106-A, 439, 4389-A, 440, 441, 442, 487, 488 and 489 were
marked through PW.140. Thus, accused No.6 cannot contend that
recoveries were not proved by examining a public witness and there
are contradictions of place of arrest in arrest memo etc. He cannot
contend that mere marking of document as an exhibit does not
dispense with its proof. Accused No.6 cannot contend that no
independent witness was made as panch witness and he was not
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examined. The further contention of accused No.6 is that electronic
devices/seizures were in illegal custody.
70. As discussed above, PW.140, the Chief Investigating
Officer in Crime No.54 of 2011 specifically deposed about the
aforesaid discoveries and recovers including e-mail IDs, DELL
Laptop etc. In the light of the said discussion, the contention of
learned counsel for accused No.6 that Ex.P451, dated 16.04.2015,
alleged discovery of information under Section – 27 of the Evidence
Act is inadmissible cannot be accepted.
71. His further contention that Memorandum of deceased
Nos.4 & 5 accused had not signed on the panchanama and upon
deceased Nos.1 to 3, there is no signature of accused No.6, cannot be
considered. The evidence of PW.111 – Syed Abdul Irshad, panch
witness to the disclosure statement of accused No.6 and Ex.P326 is
disclosure statement of accused No.6 and Ex.P327 – printouts of
scanned copies retried in the disclosure panchanama are relevant.
The same prove the role played by accused No.6 in preparation of
fake IDs and supply of the same to other accused. As discussed
above, accused No.6 cannot contend that photocopy is not admissible
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in evidence and mere marking of the same as an exhibit does not
dispense with its proof.
72. With regard to the contention of learned counsel for
accused No.6 that there is non-compliance of Section – 65B of the
Evidence Act insofar as Exs.P107, 106-A and P491 is also
inadmissible in view of the fact that prosecution has marked Ex.P491
– certificate issued under Section – 65B of Evidence Act in respect of
Ex.P107 (hard disk), Ex.P492 – certificate issued under Section – 65B
of Evidence Act in respect of Ex.P105 chart extracts. Ex.P445 –
certificate issued under Section – 65B of the Evidence Act
authenticating the content of the CD.
73. There is no violation of procedure laid down under
Section – 203 (4) of Cr.P.C. as contended by learned counsel for
accused No.6 and cannot contend that as per Extraordinary Gazette
file on record. ICERT, New Delhi has no locus
standi/jurisdiction/authority to conduct Digital Forensic Analysis at
any relevant point of time.
74. In the light of the aforesaid discussion, more particularly,
the evidence of aforesaid witnesses, recoveries and discoveries, the
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contention of learned counsel for accused No.6 that the contents of
second supplementary charge sheet, depositions of the aforesaid
witnesses lack the ingredients of Section – 120B of IPC is
unsustainable. As discussed above, there is specific allegation
against accused No.6. He has prepared fake IDs and supplied the
same to accused Nos.2 to 5, who used the same for the purpose of
receiving money through hawala and used the said money for
execution of conspiracy. Therefore, the facts in Yogesh14 are
different to the facts of the present case.
75. It is relevant to note that in Bilal Hajar alias Abdul
Hameed v. State, represented by Inspector of Police36, the Apex
Court held in paragraph Nos.30 to 34 held as under:
“30. Reading of Section 120-A and Section
120-B IPC makes it clear that an offence of
“criminal conspiracy” is a separate and distinct
offence. Therefore, in order to constitute a
criminal conspiracy and to attract its rigor, two
factors must be present in the case on facts: first,
involvement of more than one person and second,
an agreement between/among such persons to do
or causing to be done an illegal act or an act36
. (2019) 17 SCC 451
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done by illegal means.
31. The expression “criminal conspiracy” was
aptly explained by this Court in E.G.
Barsay v. State of Bombay [E.G. Barsay v. State
of Bombay, (1962) 2 SCR 195 : AIR 1961 SC
1762 : (1961) 2 Cri LJ 828] . The learned Judge
Subba Rao, J. (as his Lordship then was and later
became CJI) speaking for the Bench in his
distinctive style of writing said : (AIR p. 1778,
para 31)
“31. … The gist of the offence is an
agreement to break the law. The parties to such
an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be
done has not been done. So too, it is not an
ingredient of the offence that all the parties
should agree to do a single illegal act. It may
comprise the commission of a number of acts.”
32. Therefore, in order to constitute a
conspiracy, meeting of minds of two or more
persons to do an illegal act or an act by illegal
means is a must. In other words, it is sine qua non
for invoking the plea of conspiracy against the
accused. However, it is not necessary that all the
conspirators must know each and every detail of
the conspiracy which is being hatched and nor is
it necessary to prove their active part/role in such
meeting.
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33. In other words, their presence and
participation in such meeting alone is sufficient.
It is well known that a criminal conspiracy is
always hatched in secrecy and is never an open
affair to anyone much less to the public at large.
34. It is for this reason, its existence coupled with
the object for which it was hatched has to be
gathered on the basis of circumstantial evidence,
such as conduct of the conspirators, the chain of
circumstances leading to holding of such meeting
till the commission of offence by applying the
principle applicable for appreciating the
circumstantial evidence for holding the accused
guilty for commission of an offence. (See
also Baldev Singh v. State of Punjab [Baldev
Singh v. State of Punjab, (2009) 6 SCC 564 :
(2009) 3 SCC (Cri) 66] .)”
76. In Ram Sharan Chaturvedi v. The State of Madhya
Pradesh 37, the Apex Court held in paragraph Nos.20 to 23 as
follows:
“20. In his evidence, PW-10 stated that on
12.06.2004, he caused the main gate of the
branch to be closed by A-1, a contingent
employee. Thereafter, on 14.06.2004, the
sanitation employee obtained this set of keys37
. 2022 LiveLaw (SC) 709
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the prosecution to imply that after the branch was
locked on 12.06.2004, the Appellant was in
possession of the keys to the main gate of the
branch. On this, the Trial Court glossed over the
lapse on the part of PW-10. This questionable
observation of the Trial Court is as follows:
“It was admitted by Sushil Verma (PW-10) in
the paragraph No. 30 of the cross-examination
that locks could be locked as per the rules of
the bank only by the authorised person. The
accused Pradeep being not a casual worker,
but even then he had committed error
deliberately while handing over the key. The
witness stated further in the paragraph No. 36
that the external, gate was got closed by the
accused Pradeep. It is correct to say that he
had no authority to close the gate. Thus the
witness did not get the lock locked by the
authorised person as per the rule of the bank,
but the lock was locked by unauthorised person.
But the errors committed by the witness do not
exempt the accused from the consequences of
the crime. It does not provide any benefit to the
accused.” (emphasis supplied)
21. Apart from the fact that the Appellant by
himself could not have operated the strong room
and the safe of the Bank without the presence of
the officer who was in the custody of the other set
of keys, it is also important to note that the
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evidence to indicate the existence of any
agreement between the Appellant on the one
hand and A-1 and A-2 on the other. The link
necessary for proving the charge of conspiracy is
entirely missing.
22. The principal ingredient of the offence of
criminal conspiracy under Section 120B of the
IPC is an agreement to commit an offence. Such
an agreement must be proved through direct or
circumstantial evidence. Court has to necessarily
ascertain whether there was an agreement
between the Appellant and A-1 and A-2. In the
decision of State of Kerala v. P. Sugathan and
Anr.[ (2000) 8 SCC 203], this Court noted that an
agreement forms the core of the offence of
conspiracy, and it must surface in evidence
through some physical manifestation:
“12. …As in all other criminal offences, the
prosecution has to discharge its onus of
proving the case against the accused beyond
reasonable doubt. …A few bits here and a few
bits there on which the prosecution relies
cannot be held to be adequate for connecting
the accused with the commission of the crime of
criminal conspiracy…
13. …The most important ingredient of the
offence being the agreement between two or
more persons to do an illegal act. In a case
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must inquire whether the two persons are
independently pursuing the same end or they
have come together to pursue the unlawful
object. The former does not render them
conspirators but the latter does. For the offence
of conspiracy some kind of physical
manifestation of agreement is required to be
established. The express agreement need not be
proved. The evidence as to the transmission of
thoughts sharing the unlawful act is not
sufficient…” (emphasis supplied)
23. The charge of conspiracy alleged by the
prosecution against the Appellant must evidence
explicit acts or conduct on his part, manifesting
conscious and apparent concurrence of a common
design with A-1 and A-2. In State (NCT of Delhi)
v. Navjot Sandhu [ (2005) 11 SCC 600], this
Court held:
“101. One more principle which deserves
notice is that the cumulative effect of the proved
circumstances should be taken into account in
determining the guilt of the accused rather than
adopting an isolated approach to each of the
circumstances. Of course, each one of the
circumstances should be proved beyond
reasonable doubt. Lastly, in regard to the
appreciation of evidence relating to the
conspiracy, the Court must take care to see that
the acts or conduct of the parties must be
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concurrence as to the common design and its
execution.” (emphasis supplied)”
77. In Sanjeev v. State of Kerala 38, the Apex Court held in
paragraph Nos.35 and 36 as under:
“35. After consideration of these depositions,
we must decide whether the evidence on record is
sufficient to establish a conspiracy under Section
120B, IPC. The ingredients to constitute a
criminal conspiracy were summarised by this
Court in State through Superintendent of
Police v. Nalini [(1999) 5 SCC 253] (3-Judge
Bench). They are as follows:
i. Conspiracy is when two or more persons
agree to do or cause to be done an illegal act
or legal act by illegal means.
ii. The offence of criminal conspiracy is an
exception to the general law, where intent
alone does not constitute crime. It is the
intention to commit a crime and join hands
with persons having the same intention.
iii. Conspiracy is hatched in private or in
secrecy. It is rarely possible to establish a
conspiracy by direct evidence. Usually, the
existence of the conspiracy and its objects
have to be inferred from the circumstances
and the conduct of the accused.
38
. 2023 INSC 998
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016iv. Where in pursuance of the agreement, the
conspirators commit offenses individually
or adopt illegal means to do a legal act that
has a nexus to the object of the conspiracy,
all of them will be liable for such offenses
even if some of them have not actively
participated in the commission of those
offenses.
36. These principles were followed in Yakub
Abdul Razak Memon v. State of Maharashtra
[(2013) 13 SCC 1] (2-Judge Bench), wherein this
Court reiterated that to establish conspiracy it is
necessary to establish an agreement between the
parties. Further, the offence of criminal
conspiracy is of joint responsibility, all
conspirators are liable for the acts of each of the
crimes which have been committed as a result of
the conspiracy. [See also: Arvind Singh v. State
of Maharashtra [(2021) 11 SCC 1] (3-Judge
Bench); Mohd. Naushad (supra)].”
78. In the light of the aforesaid principle laid down by the
Apex Court, as discussed above, the prosecution proved the aforesaid
ingredients by examining PWs.81, 111, 134, 136, 139, 140 and 147
by producing the aforesaid exhibits. By the aforesaid witnesses and
the documents, the prosecution has proved the retrieval of jihadi
material, draft e-mails on the letter head of IM and also fake IDs
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used by accused Nos.2 to 4 from the Laptop of accused No.6 at his
instance of accused No.6.
79. It is relevant to note that on consideration of the said
depositions and documents, learned trial Court held that accused
No.6 created fake IDs used by accused Nos.2 to 4 for financial
transactions and was in possession of Jihadi material and used to
send e-mails after commission of bomb blasts in various places.
80. It is also trite to note that the trial Court also placed
reliance on the circumstantial evidence led by prosecution and the
principle laid down by the Apex Court in Sharad Biridhichand
Sarda v. State of Maharashtra 39 including five (05) golden
principles laid down by the Apex Court, to place reliance on the
circumstantial evidence to record conviction against accused. In the
present case, the circumstances relied upon by the prosecution forms
a complete chain and on consideration of the same only, the trial
Court recorded conviction against accused No.6. It is also apt to note
that in paragraph Nos.652 to 659, the trial Court gave specific
findings with regard to circumstantial evidence. In Sharad
Biridhichand Sarda39, the Apex Court held as under:
39
. (1984) 4 SCC 116
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the High Court we would like to cite a few
decisions on the nature, character and essential
proof required in a criminal case which rests on
circumstantial evidence alone. The most
fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh [(1952) 2
SCC 71:AIR 1952 SC 343:1952 SCR 1091: 1953
Cri LJ 129]. This case has been uniformly
followed and applied by this Court in a large
number of later decisions up-to-date, for instance,
the cases of Tufail (Alias) Simmi v. State of Uttar
Pradesh [(1969) 3 SCC 198:1970 SCC (Cri) 55]
and Ramgopal v. State of Maharashtra [(1972) 4
SCC 625: AIR 1972 SC 656]. It may be useful to
extract what Mahajan, J. has laid down in
Hanumant case [(1952) 2 SCC 71:AIR 1952 SC
343:1952 SCR 1091 : 1953 Cri LJ 129]:
“It is well to remember that in cases where
the evidence is of a circumstantial nature,
the circumstances from which the conclusion
of guilt is to be drawn should in the first
instance be fully established, and all the
facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
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chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused.”
153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court
indicated that the circumstances concerned
“must or should” and not “may be”
established. There is not only a grammatical
but a legal distinction between “may be
proved” and “must be or should be proved”
as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra
[(1973) 2 SCC 793:1973 SCC (Cri)
1033:1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p.
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle
that the accused must be and not
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merely may be guilty before a court
can convict and the mental distance
between ‘may be’ and ‘must be’ is
long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.
154. These five golden principles, if we
may say so, constitute the panchsheel of the
proof of a case based on circumstantial
evidence.”
In view of the above, the prosecution proved the guilt of accused
No.6 beyond reasonable doubt.
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81. As discussed above, the aforesaid witnesses categorically
spoke the role played by accused No.6 in commission of offence.
Nothing contra was elicited by accused No.6 during cross-
examination of the said witnesses. On consideration of the said
aspects only, learned trial Court recorded conviction against accused
No.6. There is no error in it.
82. CONTENTIONS OF ACCUSED No.6 ON LEGAL
ASPECTS:
Learned counsel for accused No.6 contended as follows:
i) There is violation of procedure laid down under Sections –
27 and 114 of the Evidence Act, Sections – 43, 43A and 43B of the
UAP Act, Sections – 6 and 7 of the NIA Act and 100 of the Cr.P.C.
ii) In the light of the said submissions, it is relevant to note
that Section – 27 of the Evidence Act deals with ‘how much of
information received from accused may be proved’, and it says that
provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved. This Court
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in Macharla Ramesh21 considered the scope of Section – 27 of the
Evidence Act and examined distinction between Sections – 25, 26
and 27 of the Evidence Act and held that recovery pursuant to
confession made by accused is admissible. In the present case also,
the confession of accused No.6 and recoveries and discoveries made
from him pursuant to the same is admissible. In the light of the
same, the contention of learned counsel for accused No.6 cannot be
accepted.
iii) Section – 114 of the Evidence Act deals with ‘Court may
presume existence of certain facts, and it says that the Court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to
the facts of the particular case. Illustrations were also given. In the
present case, learned trial Court presumed certain facts which were
in existence while recording conviction against accused No.6. The
said findings are in paragraph Nos.647 to 651 of impugned judgment
with regard to accused No.6. Therefore, the said contention of
learned counsel for accused No.6 is also unsustainable.
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iv) With regard to the contention of learned counsel for
accused No.6 that there is violation of procedure laid down under
Sections – 43, 43A and 43B of UAP Act. Section – 43 deals with
‘officers competent to investigate offences under Chapters – IV and
VI. Section – 43 (c) says that in any case not relatable to Clause (a)
or clause (ba), below the rank of a Deputy Superintendent of Police
or a Police Officer of an equivalent rank, shall investigate any
offence punishable under Chapter – IV or VI. In the present case, all
the Officers are Deputy Superintendent of Police (Assistant
Commissioner of Police or above). Therefore, there is no violation
of procedure laid down under Section – 43 of the UAP Act. Section –
43A of UAP Act deals with power to arrest, search, etc. Section –
43B of UAP Act deals with procedure of arrest, seizure etc. The
same is relevant and extracted as under:
“43B. Procedure of arrest, seizure, etc.–(1) Any
officer arresting a person under section 43A shall, as
soon as may be, inform him of the grounds for such
arrest.
(2) Every person arrested and article seized under
section 43A shall be forwarded without unnecessary
delay to the officer-in-charge of the nearest police
station.
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(3) The authority or officer to whom any person or
article is forwarded under sub-section (2) shall, with
all convenient dispatch, take such measures as may
be necessary in accordance with the provisions of the
Code.”
As discussed above, the searches, seizures and arrests were strictly in
accordance with the aforesaid procedure laid down under NIA Act.
Learned counsel for accused No.6 except making a bald statement,
failed to satisfy this Court with regard to violation of the aforesaid
provisions. It is relevant to note that learned trial Court considered
the said aspects while recording the conviction against accused No.6
with the findings in paragraph Nos.646 to 651 of the impugned
judgment.
v) With regard to the contention of learned counsel for
accused No.6 that there is violation of procedure laid down under
Sections – 6 and 7 of the NIA Act, it is relevant to note that Section –
6 of the NIA Act deals with ‘investigation of scheduled offences’,
and Section – 7 deals with ‘power to transfer investigation to State
Government. The same are relevant and extracted as under:
“6. Investigation of Scheduled Offences.–(1) On
receipt of information and recording thereof under
section 154 of the Code relating to any Scheduled
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shall forward the report to the State Government
forthwith.
(2) On receipt of the report under sub-section (1),
the State Government shall forward the report to the
Central Government as expeditiously as possible.
(3) On receipt of report from the State Government,
the Central Government shall determine on the basis
of information made available by the State
Government or received from other sources, within
fifteen days from the date of receipt of the report,
whether the offence is a Scheduled Offence or not
and also whether, having regard to the gravity of the
offence and other relevant factors, it is a fit case to be
investigated by the Agency.
(4) Where the Central Government is of the opinion
that the offence is a Scheduled Offence and it is a fit
case to be investigated by the Agency, it shall direct
the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this
section, if the Central Government is of the opinion
that a Scheduled Offence has been committed which
is required to be investigated under this Act, it may,
suo motu, direct the Agency to investigate the said
offence.
(6) Where any direction has been given under sub-
section (4) or sub-section (5), the State Government
and any police officer of the State Government
investigating the offence shall not proceed with the
investigation and shall forthwith transmit the relevant
documents and records to the Agency.
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(7) For the removal of doubts, it is hereby declared
that till the Agency takes up the investigation of the
case, it shall be the duty of the officer-in-charge of
the police station to continue the investigation.
(8) Where the Central Government is of the opinion
that a Scheduled Offence has been committed at any
place outside India to which this act extends, it may
direct the Agency to register the case and take up
investigation as if such offence has been committed
in India.
(9) For the purposes of sub-section (8), the Special
Court at New Delhi shall have the jurisdiction.”
“7. Power to transfer investigation to State
Government.–While investigating any offence
under this Act, the Agency, having regard to the
gravity of the offence and other relevant factors,
may–
(a) if it is expedient to do so, request the State
Government to associate itself with the investigation;
or
(b) with the previous approval of the Central
Government, transfer the case to the State
Government for investigation and trial of the
offence.”
The State Government on consideration of gravity of the offences in
the present case, transferred the investigation to NIA vide Ex.P34
letter dated. Many of the aforesaid offences alleged against accused
including accused No.6 are scheduled offence. Thus, there is no
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violation of the procedure laid down under Sections – 6 and 7 of the
vi) With regard to the contention of learned counsel for
accused No.6 that there is violation of Section – 100 of Cr.P.C., it is
relevant to note that Section – 100 of Cr.P.C. deals with ‘persons in
charge of closed place to allow search’. Except making a statement
that there is violation of Section – 100 of Cr.P.C., learned counsel for
accused No.6 failed to satisfy this Court with regard to the said
violation.
83. MEMOS:
i) Mr. R. Mahadevan, learned counsel for accused Nos.2 and
5 and Mr. Appam Chandra Sekhar, learned counsel for accused
Nos.3 and 4 contended that after pronouncing of judgment by the
learned trial Judge, when the matter was posted for hearing on
sentence, the appellants filed memos before the trial Court stating
that their counsel are not available and they were held up in Supreme
Court, New Delhi. Therefore, they requested the trial Court to
adjourn the matter even to hear on Sentencing Policy. Instead of
adjourning the matter on consideration of the said memos, the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016learned trial Court heard the accused on sentencing and imposed
sentence of death penalty on the accused. Thus, the learned trial
Court did not pass any order on the memos filed by the accused.
ii) Therefore, the appellants – accused Nos.2 to 5 sought a
decision/judicial order on memos filed by them. On Memo, the
learned trial Court cannot pass a judicial order. If the appellants
want a judicial order, they have to file an Interlocutory Application,
but they cannot file a memo. The said principle was also laid down
by the High Court of Judicature at Hyderabad for the States of
Telangana and the Andhra Pradesh in Syed Yousuf Ali v. Mohd.
Yousuf40. Even otherwise, after pronouncing the judgment and
while hearing on sentence of imprisonment, the Court will hear the
accused, but not learned counsel for the accused. In the light of the
same, the aforesaid contention of learned counsel for accused Nos.2
to 5 cannot be accepted.
84. DEFECT/FAULTY INVESTIGATION:
i) Learned counsel for the appellants strenuously contended
that the Investigating Officers did not conduct investigation property.
According to them;
40
. 2016 (3) ALD 235
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(a) There is delay in registration of FIR;
(b) FIR does not contain full particulars;
(c) Seizure procedure was not followed;
(d) FSL Experts were not examined;
(e) TIP was not conducted properly;
(f) Opinion of Experts was not properly obtained;
(g) Certificates under Section – 65B of the Evidence Act
were not obtained;
(h) Panch witnesses were not examined;
(i) Doctors, who treated the injured persons, were not
examined; and
(j) Injured witnesses were not examined.
ii) In fact, the prosecution has examined the doctors, who
treated the injured persons, and some of the injured persons. The
other aspects with regard to delay and FSL reports will be considered
in the following paragraphs. However, in a matter like this, the
accused cannot take faulty/defect investigation as a defense and seek
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acquittal. The said principle was also laid down by the Apex Court
in Dayal Singh v. State of Uttaranchal 41.
iii) Even if an investigation is flawed or partly affected, rest of
the evidence must be scrutinized independently as held by the Apex
Court in Edakkandi Dineshan @ P. Dineshan v. State of Kerala 42.
iv) As discussed above, it is an organized crime. Therefore,
minor omissions in conducting an investigation can be ignored. In a
matter like this, the accused cannot take defect/faulty investigation as
a ground for acquittal. Therefore, the contention of learned counsel
for the appellants that the Investigating Officers did not conduct the
investigation properly cannot be accepted.
85. EYE-WITNESSES:
i) Learned counsel for the appellants also contended that there
are no eye-witnesses to the incident. Entire case rests on
circumstantial evidence. But, according to the prosecution, PW.59 –
Merugu Ilaiah is an eye-witness. PW.143 – Mr. T. Nageshwar Rao,
Reporter, TV9, Telugu News Channel, who interviewed PW.59. It is
relevant to discuss their evidence.
41
. AIR 2012 SC 3046
42
. 2025 INSC 28
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ii) PW.59 deposed in his chief-examination as under:
“I am making a film now. I was working in
HDFC Bank as sales officer during 2012-13. I
got married in the year 2013 January, my wife is
working in Pharmaceutical company at Banjara
Hills. I used to drop my wife at Disukhnagar bus
stop in the morning and used to receive her in the
evening on the other side of the road bus stop.
She used to call me from the bus when she was
reaching Malakpet, so that I will be available at
Dilsukhnagar to receive her. On 21-02-2013
around 06-30 pm., I reached Anand Tiffin center
at Dilsukhnagar and I was waiting for my wife,
meanwhile I had a cup of tea at Anand Tiffin
center by parking my bike in between A1-mirchi
center and Anand Tiffin center. One person
brought a cycle with Tiffin carrier and parked the
same in between two bikes. I observed because
the cycle may fit between two bikes or not. I
thought that the said person was idly seller and as
such he got some bag containing Tiffin box on
the carrier of the cycle. The witness identified the
said person as Accused No.4 Mohd. Taseen
Akhtar @ Hassan @ Monu (the witness
identified A4 while the accused sat in their own
sequence. The accused covered their faces for all
the witnesses and removing such cover at the
time of giving evidence). Then I crossed the road
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By the time I cross the road there was an
explosion near Venkatadri Theater and within
seconds I heard another sound of explosion from
Al-mirchi center side. There was lot of
commotion and people were running in all
direction and I also noticed huge fires and smoke.
I along with my wife rushed to our home. Then I
came to know through the news of TV channel
that there was bomb blast at Dilsukhnagar and I
returned to scene with curiosity. Then I noticed
the police and other people and came to know
that one blast was at Anand Tiffin center due to
cycle bomb caused by a person having light
beard. Meanwhile a media person came to me
observing me conversing with others about my
presence just few minutes before the blast. Then
the TV9 Channel person took my interview after
asking me to cover my face with a kerchief, then
I narrated the whole incident to TV9 reporter
which was telecast on the same night. I was
examined by Police. I participated in the TI
parade twice. At the time of first on 28-06-2014
TI parade I could not identify A4 due to lack of
sufficient light and the long distance in between
me and the accused and other non-suspects. But,
in the second time on 09-07-2014 I identified A4
as I was permitted to go near and point out A4.
Ex.P52 is my signature on TI proceedings dt.28-
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Crl.A. No.1299 of 2016 along with RT No.1 of 201606-2014. Ex.P53 is my signature on TI
proceedings dt.09-07-2014.”
iii) During cross-examination, this witness admitted that
during the first Test Identification Parade (for short ‘TIP’) conducted
on 28.06.2014, he identified another person instead of accused No.4.
What all he stated in his chief examination was not stated before the
Magistrate.
iv) PW.143 deposed in his chief-examination as under:
“I am working as TV9 News Channel Senior
Reporter for the past 11 years. On 21-02-2013 we
came to know that bomb blasts took place at
Dilsukhnagar at around 06-50 pm., and I reached
scene of offence at 07-30 pm., I got video-
graphed the scene of offence and dead bodies and
the wreckage of the impact of the blasts. Then
one person by name Merugu Illaiah (PW59)
came to me and stated before me that he has seen
one person having parked a cycle mounted a box
which might have resulted in the blasts He also
stated that the identification particulars of the
said person, as the said person was having beard.
He crossed the road after observing the said
person and there was a blast. Then I requested
the said person to give his interview, then he
refused to do so out of fear, then I asked him to
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016cover his face with cloth and then he gave his
interview. I also promised to him that I will not
reveal his identity to any one and within ½ hour
the same was tele-casted. Ex.P444 is the CD of
the telecast. Ex.P445 is the certificate Under
Section 65-B of Indian Evidence Act provided by
me authenticating the content of the CD. Ex.
P446 is the letter addressed to the Managing
Director TV9 requesting for providing the said
telecast by NIA Police. Ex. P446 was received
by me. I was examined by the Police. I provided
the details of Merugu Illaiah to the NIA Police in
September, 2013.”
v) During cross-examination, this witness admitted that in
Ex.P446, there is no mention of the name of the person whom he
interviewed, but it was only mentioned that he was a ‘masked
person’. In Ex.P446, there is no mention that he was the Reporter of
TV9 who interviewed the masked man. The name of the person
whom he interviewed on 21.02.2013 is not mentioned in Ex.P445
(certificate). He did not state in his 161 Cr.P.C. statement dated
12.06.2014 before the NIA Police about the name of the person
whom he interviewed on 21.02.2013 as by that time the name and
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particulars of the person were not known to him. He interviewed the
mask man on 21.02.2013 at about 10.00 P.M.
vi) PWs.1 and 2 are also eye-witnesses. Their depositions
will also be discussed contextually in subsequent paragragraphs.
vii) Thus, the appellants failed to elicit anything contra from
the aforesaid witnesses. Therefore, learned counsel for the
appellants cannot contend that there are no eye-witnesses to the
incident and PWs.59 and 143 are not eye-witnesses.
viii) It is relevant to note that eye-witnesses are eyes and ears
of justice and where the eye witnesses’ evidence is found available
and trustworthy, hypothetical answers given by other witness
including doctors cannot decrease the value of eye-witness. The said
principle was also held by the Apex Court in Ramakant Roy v.
Madan Rao 43.
ix) It is apt to note that on consideration of the said aspects,
the learned trial Court convicted the appellants vide the impugned
judgment.
43
. AIR 2004 SC 77
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86. TEST IDENTIFICATION PARADE (TIP):
i) Rule – 34 of the Criminal Rules of Practice and Circular
Orders, 1990 deals with ‘identification parades. It is relevant to
extract and the same is extracted as under:
“34. Identification parades:- In conducting
identification parades of suspects, the Magistrate
shall observe the following Rules.
(i) (a) The Police should senda requisition for
holding identification parade by the Magistrate
as nominated by the Sessions Judge. On such
requisition, the Magistrate shall conduct the
identification parade as expeditiously as
possible.
(b) Where bail application is pending for the
release of the accused and on being informed so
by the Police Officer, the Magistrate shall as far
as possible fix a date earlier to the date of
arguments on the bail application and hold the
identification parade.
(ii) (a) As far as possible, non-suspects selected for
the parade shall be of the same age, height,
general appearance and position in life as that of
the accused. Where a suspect wears any
conspicuous garment, the Magistrate conducting
the parade shall if possible, either arrange for
similar wear to other or induce the suspected
person to remove such garment.
(b) The accused shall be allowed to select his own
position and should be expressly asked if he has
any objection to the persons present with him or
the arrangements made. It is desirable to change
the order. in which the suspects have been placed
at the parade during the interval between the
departure of one witness and the arrival of
another.
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(iii) (a)The witnesses who have been summoned for
the parade shall be kept out of the view of the
parade and shall be prevented from seeing the
prisoner before he is paraded with others.
(b) Before a witness is called upon to identify the
suspect, he should be asked whether he admits
prior acquaintance with any suspect whom he
proposes to identify. He shall also be asked to
state the marks of identification by which he can
identify the suspects.
(c) Each witness shall be fetched by a peon
separately. The witness shall be introduced one
by one and on leaving shall not be allowed to
communicate with witness still waiting to see the
persons paraded.
(iv) Every circumstances connected with the
identification including the act if any attributed to
the person who is identified shall be carefully
recorded by the officer conducting it, whether the
accused or any other person is identified or not.
Particularly any objection by any suspect to any
point in the proceeding shall be recorded.”
ii) It is relevant to note that in the present case, PW.98 –
learned XIX Metropolitan Magistrate of Cyberabad at Kukatpally,
conducted TIP proceedings of accused No.2 on 19.10.2013 vide
Ex.P257. In his deposition, he has deposed as under:
“In pursuance of such proceedings the Chief
Investigating Officer, National Investigating
Agency, Hyderabad has filed a requisition before
me to conduct Test Identification Parade in
respect of the above named accused through the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016witnesses as mentioned in the requisition of NIA
filed before me which is Ex.P255 (4 Sheets).
Accordingly I addressed a letter to the Jail
Authorities of Cherlapally fixing the date of TIP
as 19-10-2013 under Ex.P256. I issued summons
to nine witnesses as mentioned in Ex.P255
directing them to appear before Central Prison
Cherlapally on 19-10-2013.
On 19-10-2013 I reached Central Prison
Cherlapally along with my laptop and printer to
conduct TI proceedings. I reached the Jail
premises by 10:30 am., I deposited my personal
cell phone with Jail staff and entered into
Chambers of Deputy Superintendent of Prison
and secured the presence of the witnesses and
identified them with the help of summons which I
issued. I recorded the statements of Ms.Nabees
(1st witness), Mr. Stephen Felex Squares (PW71,
2nd witness), Mr. Muttu Ravi Denakar (PW69, 3rd
wtiness), Mr. Devaraj Shet (PW70, 4th witness),
Mr. P. Venkateshwarlu (PW75, 6th witness), Mr.
Shaik Riyaz (7th witness), Mr. Mohan Lal Sencha
(PW58, 8th witness), Mr. Khaja Pasha (PW56, 9th
witness). One witness by name Raju Shetty
(Witness No.5) remained absent. I recorded the
statements of the above witnesses. At the time of
recording of my statements no jail staff member
and any police official were present. I asked the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016witness whether the Police have shown any
photographs of the suspect, for which the
witnesses replied in negative. I instructed the
witnesses to remain in the same place and
reached Conference Hall where I conducted TIP.
In Conference Hall except myself nobody was
present. I secured the presence of suspected
person the accused No.2 Aasadullah Akthar @
Haddi @ Daniyal, S/o. Dr. Javeed Akthar, Age:
28 years, R/o.Bazbahadur, Azamgarh, Uttar
Pradesh State. I have identified the suspect with
the help of prisoner identification card and
confirmed that the person before me was the right
person in respect of whom I have to conduct TIP.
The suspect was wearing Muslim cap, having
beard and wearing pants and shirt. At the instance
of suspect five non-suspects of same age, and
body built and attire and other physical features
were selected from among the inmates of the jail.
All the non-suspects and suspect were wearing
Muslim cap. Then I asked the suspect to change
his dress if he so desires. Then I asked the
suspect and five non-suspects to stand in a row.
Accordingly, they stood in a row and the suspect
took third position in the row from left to right.
Then I instructed the jail staff member who was
outside the room to bring first witness. The
witness came in burka and identified the suspect.
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I sent the first witness to ladies’ barrack in the
jail.
I have informed the suspect that he was at
liberty to change his dress and position. The
suspect stood in fourth position in the row, then I
instructed the jail staff member who was the
outside the room to bring the second witness
from the Chambers of Deputy Superintendent.
The witness came and identified the suspect. I
sent the second witness to male barrack in the
jail.
Then I informed to the suspect that he was at
liberty to change his position and dress but the
suspect did not change his dress and took third
position in the row. Then I instructed the jail staff
member who was the outside the room to bring
third witness. The witness came and identified
the suspect. I sent the witness to male barrack.
Once again, I informed to suspect that he is at
liberty to change his attire and position. The
suspect did not change his dress, but he took
second position in the row. Then I instructed the
jail staff member who was outside the conference
hall to bring forth witness. Accordingly, fourth
witness was brought to my room and this witness
also identified the suspect who was in second
position in the row. I sent the witness to male
barrack.
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The fifth witness by name Raju Shetty was not
present.
Once again, I informed to suspect that he is at
liberty to change his attire and position. The
suspect did not change his dress, but he took fifth
position in the row. Then I instructed the jail staff
member who was outside the conference hall to
bring sixth witness. Accordingly, sixth witness
was brought to my room and this witness also
identified the suspect who was in fifth position in
the row. I sent the witness to male barrack.
Once again, I informed to suspect that he is at
liberty to change his attire and position. The
suspect did not change his dress, but he took
second position in the row. Then I instructed the
jail staff member who was outside the conference
hall to bring seventh witness. Accordingly,
seventh witness was brought to my room and this
witness also identified the suspect who was in
second position in the row. I sent the witness to
male barrack.
Once again, I informed to suspect that he is at
liberty to change his attire and position. The
suspect did not change his dress, but he took sixth
position in the row. Then I instructed the jail staff
member who was outside the conference hall to
bring eighth witness. Accordingly, eighth witness
was brought to my room and this witness also
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identified the suspect who was in sixth position in
the row. I sent the witness to male barrack.
Once again, I informed to suspect that he is at
liberty to change his attire and position. The
suspect did not change his dress, but he took first
position in the row. Then I instructed the jail staff
member who was outside the conference hall to
bring ninth witness. Accordingly ninth witness
was brought to my room and this witness also
identified the suspect who was in first position in
the row. I sent the witness to male barrack.
Ex.P257 is the Test Identification parade
proceedings (15 sheets) including the statements
of the witnesses.
I have obtained the signatures of the non-
suspects who participated in the proceedings on
the 15th sheet of Ex.P257. At this stage I asked
the suspect as to whether he has got any objection
for the manner in which the proceedings are
conducted. The suspect said nothing. I instructed
the jail authorities to send away the witnesses
from the jail premises and concluded my
proceedings at 02-30 pm.
Then once again on 22-10-2013 I conducted
Test identification parade in respect of the same
suspect through the witnesses namely Raju Shetty
(5th witness in earlier proceedings who was
absent on 19-10-2013 and 1″ witness in the
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present proceedings) and Shaik Ismail (PW57, 2nd
witness).
I issued summons to the above named two
witnesses to appear before Central Prison,
Cherlapally on 22-10-2013 at 10-30 am.,
Accordingly they appeared at Central Jail,
Cherlapally on 22-10-2013. I recorded their
statements and obtained signatures. Then I
secured the presence of suspect (accused No.2) to
the conference hall and ascertained his identity
with jail ID card. The suspect has selected five
non-suspects from among the inmates of jail. The
suspect was wearing pant and shirt and Muslim
cap. He was having beard. The non-suspects were
identical in their physical features and age group.
Then I informed the suspect that he is at liberty to
change his dress, if he so desires. But he did not
change his dress.
I asked the suspect and non-suspect to stand in a
row. Accordingly, they stood in the row forming
from left to right. The suspect took first position
in the row. Then I instructed the jail staff member
who was outside the conference hall to bring first
witness Raju Shetty. Accordingly, first witness
Raju Shetty was brought to my room and this
witness identified the suspect who was in first
position in the row. I sent the witness to male
barrack.
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I asked the suspect and non-suspect to stand in a
row. Accordingly, they stood in the row forming
from left to right. The suspect took sixth position
in the row. Then I instructed the jail staff member
who was outside the conference hall to bring
second witness Shaik Ismail (PW57).
Accordingly, second witness Shaik Ismail
(PW57) was brought to my room and this witness
identified the suspect who was in sixth position in
the row. I sent the witness to male barrack.
At this stage, I asked the suspect as to whether
he has got any objection for the manner in which
the proceedings are conducted. The suspect said
nothing. I instructed the jail authorities to send
away the witnesses from the jail premises and
concluded my proceedings at 11-50 am., Ex.
P258 is the Test identification proceedings dt. 22-
10-2013 (7 sheets) along with statements of the
witnesses and signatures of the non-suspects.
iii) During cross-examination, this witness
admitted as under:
“On 11-10-2013 I issued summons to the
witnesses. I did not mention specifically in sheet
No.15 of Ex.P257 and the last sheet of Ex.P257
about the height, complexion, and colorof dresses
worn by the non-suspects. The witness
volunteers that he mentioned in para No.7 of
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Ex.P257 and Ex.P258. It is true that I stated in
both the proceedings in Ex.P257 that the suspect
was in white in complexion and was wearing
trousers and full sleeved shirt, and he had well
grown black coloured beard. It is true that I did
not specifically mention in my proceedings under
Ex. P257 in para No.7 that the non-suspects are
also having full grown beard. The witness
volunteers that I generally noted that their
appearance is identical. It is true that I did not
specifically mention in my proceedings under
Ex.P257 in para No.7 that the non-suspects were
of white complexion and were wearing similar
dresses as that of the suspect. The witness
volunteers that i generally noted that their
appearance is identical.
Q: I put it to you: Have you asked the witnesses
whether they have prior acquaintance with the
suspects?
Answer by the witness: No
The witness volunteers that he put a question to
the witness whether they had any occasion to see
the suspect after his arrest and for which the
witnesses answered negative. It is true that I have
written in the proceedings vide Ex.P257 and
Ex.P258 in para No.7 that the features of and
non-suspects are “identical”. But the appropriate
word would be “similar”. It is true that I did not
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016mention in my proceedings vide Ex. P257 and
Ex. P258 that I asked the witnesses about the
identification marks and facial features of the
suspects whom they propose to identify The
witness volunteers that the same were mentioned
in the statements of the witnesses. I did not
mention in Ex. P257 and Ex.P258 that I asked the
witnesses about the exact individual specific
overtacts of the suspects. The witness volunteers
that it is written in the statements of witnesses. I
did not ask the suspects and non-suspects to bring
their spare dresses to be used during the Test
Identification Parade. The witness volunteers that
no spare dresses will be available in the jail
premises and as such I did not put that question
but I asked the suspect and non-suspects to
change their dresses among them. It is true that I
have permitted the witnesses to wear black mask
during the identification parade proceedings to
hide their identities from the accused. The
witnesses did not specifically state before me that
they are afraid of the accused and as such they
want to wear black masks while identifying the
accused. I did not ask the witnesses to produce
their ID proof as to their identity. The witness
volunteers that he identified the witnesses basing
on the summons. The suspect selected the non-
suspects from among the inmates of the jail. It is
true that in my TI proceedings vide Ex.P257 and
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Ex P258 I did not specifically mention the name
of the witnesses, and that they were also having
long beard and Muslim caps who were brought
by the attender at the time of identification of the
accused. I only referred to them as first witness,
second witness etc., I did not mention the
descriptive particulars of my laptop and my
printer I used were supplied by the Hon’ble High
Court. PW55 (Periki Venkateshwarlu) stated
before me that he is a private employee working
in Santhosh Lorry Transport, Peeplepahad
Village, Chotuppal Mandal, Nalgonda District. It
is true that PW55 stated before me in the Test
Identification parade proceedings that he got one
elder brother Mr.P.Brahmaiah who has got one
tin sheeted shed in Abdullapurmet, Hayathnagar
Mandal, Ranga Reddy District. PW62 stated
before me in his statement before conducting
Test Identification parade that he has got a house
in Abdullapurmet and Mr.Brahmaiah has got tin
sheeted shed adjoining my house and that four
young persons joined as tenants in the house of
Brahmaiah. It is true that PWS6 did not state in
his statement about the descriptive particulars of
the old cycle he sold. It is true that PW57 did not
state in his statement about the descriptive
particulars of the cycle he sold. It is true that
PW62 stated before me that the tenants have left
the house abruptly on the next day of blasting in
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Dilsukhnagar. It is true that I did not specifically
mention that I have taken precautions to ensure
that the witness after the identification parade
does not come in to contract with the other
waiting witnesses. The witness volunteers that
after identification of the suspect each witness
was sent to separate barrack in the jail. It is not
true to suggest that the suspect stated before me
that all the witnesses saw him in NIA office
during his police custody and as such they
identified him in the test identification parade. It
is not true to suggest that I have not followed the
procedure as contemplated by Law.”
Thus, nothing contra was elicited during cross-examination of the
aforesaid witness.
iv) PW.114, learned III Metropolitan Magistrate, Hyderabad,
conducted TIP proceedings of bicycles (MOs.5 and 6) vide Ex.P46
by summoning PWs.56 and 57. He deposed in his chief-examination
as under:
“Previously I worked as III Metropolitan
Magistrate at Hyderabad between 05-04-2014 to
31-07-2014. On the requisition filed by the Chief
Investigating Officer, DSP, NIA, Hyderabad to
conduct Test Identification Parade of seized
damaged two bicycles from the scene of offence
in this case and in view of the proceedings of the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Hon’ble Chief Metropolitan Magistrate,
Hyderabad dt.28-05-2014 nominating me to
conduct Test Identification parade of the said two
bicycles Mo.5 and Mo.6 and issue summons to
the witnesses to PW56 and PW57 Md. Khaja
Pasha and Shaik Ismail respectively, I issued
summons to them fixing the Test Identification
parade on 07-06-2014, on which date, the Chief
Investigating Officer filedmemo with served
summons of the witnesses. The said witnesses
were present and I recorded their statements
which were incorporated with proceedings i.e.,
Ex. P46.
After recording the statements of the witnesses I
entered into the Court Hall where the Chief
Investigating Officer produced two half damaged
cycles with dents whose details are mentioned in
the Test identification proceedings. The CIO also
produced four damaged similar parts of the
cycles of the two material objects No.5 and 6
seized in the case as directed by the Court. The
description of the said four items are with the
company emblems of one Atlas Company and
one A1 Company and two Hero Company.
The Mo.5 and 6 are mixed with the said
damaged cycles. Later I called PW56 by name
Md. Khaja Pasha and asked him to identify the
cycle sold by him to unknown persons. He
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016identified the material object No.6 on seeing the
English letters ‘KW’ on the handle and also the
fork of the cycle as if it is a Herculas cycle part
and also ralco tyre and I asked him to leave the
Court hall. I called the second witness, PW57
Shaik Ismail and asked him to identify the cycle
which was sold by him to unknown persons. He
identified Mo.5 which is half of the damaged
cycle produced by CIO stating that the cycle is
make of ‘Atlas’ as written on the fork frame and
also Ganga tyre, then I asked the witness to leave
the Court Hall. The Proceedings under Ex.P46
were concluded. Ex.P46 is the Test Identification
Parade Proceedings conducted by me. I also
obtained signatures of PW56 and 57 on their
statements. Ex.P333 is the requisition filed by the
Chief Investigating Officer, NIA, Hyderabad
before me. Ex. P334 is the proceedings Chief
Metropolitan Magistrate, Hyderabad dt 28-05-
2014 nominating me to conduct Test
identification parade. I submitted Ex. P46 with its
enclosures Ex.P333, P334 with a covering letter
which is Ex P335 to Additional Metropolitan
Sessions Judge-cum-Special Judge for NIA
Cases, Hyderabad on 14-07-2014.”
v) During cross Examination, he has admitted as
under:
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016“It is true that in Ex.P46 both the witnesses
PWS6 and PW57 stated before me in their
statements that they sold one old cycle each to
two unknown persons in the month of January,
2013. It is true that in Ex.P46 both the witnesses
PW56 and 57 did not state before me the
descriptive particulars of the old cycles sold by
them to the unknown persons. It is true that in Ex.
P46 both the witnesses PW56 and 57 did not state
before me the descriptive particulars of the
unknown persons to whom they sold the cycles.
It is true that in Ex. P46 the slips signed by the
panch witnesses were not available on the
material objects Mo.5 and 6.
Re-Examination:
I did not ask PW56 and 57 about the descriptive
particulars of the cycles and unknown persons
who purchased both the cycles.”
Thus, accused failed to elicit anything contra from PW.114.
vi) PW.130, VIII Metropolitan Magistrate, Cyberabad also
conducted TIP vide Ex.P415 proceedings. He deposed in his chief-
examination as under:
“Presently I am working as VIII Metropolitan
Magistrate, Cyberabad since April, 2014. I have
received the nomination letter from Hon’ble 11
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Additional Assistant Sessions Court vide
Dis.No.249/2014 dt.12-06-2014 to conduct test
Identification parade of the accused No.3 Zia-ur-
Rahman @ Waqas @ Javed Ahmed @ Nabeel
Ahmed and the Accused No.4 Mohd Taseen
Akhtar @ Hassan @ Monu on that as per the
procedure I have issued summons to the
witnesses and taken permission from the
concerned Authority to go and conduct test
identification proceedings at Cherlapally Jail on
28-06-2014 I issued summons to all the
witnesses. Ex.P414 is the Nomination letter. On
28-06-2014 I proceeded to Central Prison
Cherlapally and conducted the test identification
proceedings of A3 and A4.For accused No.3 list
of 14 witnesses were given and for A4 the list of
8 witnesses were given. The proceedings were
conducted in the Conference Hall of the Jail
which was not visible from the other portionsof
the jail. As per the list of witnesses LW1 to 7
witnesses were common for the both the accused
as such the non-suspects were selected keeping in
view the similar age, height, similar complexion
in appearance. Even I asked the suspects whether
they have any objections for these proceedings
and they replied that they have no objections.
Thereafter the suspects and non-suspects stood in
a row from left to right. The proceedings were
typed by my Typist simultaneously. All the
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016proceedings are recorded as per the procedure
and white conducting the proceedings no one was
present except the witnesses, suspects and non-
suspects, myself and my Typist. All the
precautions were taken while conducting the
proceedings and the witnesses were also not
allowed to meet the other witnesses who have
already undergone the process of test
identification proceedings Ex.P415 is the
proceedings of test identification parade dt. 28-
06-2014 conducted at Central Prison Cherlapally
containing 16 sheets. The said proceedings were
typed to my narration simultaneously and the
signatures of suspects and non-suspects are also
obtained in Ex. P415. Ex. P416 is the letter
addressed to the Hon’ble I Additional
Metropolitan Sessions Judge-cum-Special Judge
for NIA Cases, Hyderabad enclosing the
proceedings under Ex. P415. Ex.P44, 45, 51, 47,
58, 52, 73, 413, 82 are the signatures of the
witnesses which form part of Ex.P415.”
vii) During cross-examination, this witness has admitted as
under:
[
“It is true that I did not examine the witnesses
and record their statements before conducting
Test Identification parade. It is true that the
witnesses did not attribute any individual specific
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016overtacts at the time of identifying the suspects.
The witness volunteers that I did not ask the
witness specifically about the individual overtacts
of the persons whom they identified. It is true that
I did not ask the witnesses whether they
participated in test identification parade in
thiscase earlier and the witnesses also did not
voluntarily state before me that whether they
participated in test identification parade in this
case earlier. It is true that the witnesses were
wearing starts/handkerchiefs while identifying
the suspects. It is true that the witnesses did not
complain before me that the distance between
them and the accused is too long and that there
was very poor light causing poor visibility as
such they could not identify some of the suspects.
It is true that I did not mention specifically in
Ex.P415 about the facial descriptions, height and
colour of dresses worn by the non-suspects. It is
true that I did not give any directions to the jail
Authorities to provide the suspects with
additional dresses for use during Test
identification parade. The witness volunteers that
I have informed the suspects that they can change
their dresses. It is true that one witness by name
Shaik Riyaz (PW62) did not identify both the
suspects in my proceedings under Ex.P415. It is
true that P.Venkateshwarlu (PW55) did not
identify A3 during the Test Identification
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016proceedings vide Ex.P415. Similarly (PW58)
MohanLal did not identify A3 in my proceedings
vide Ex.P415. Similarly Khaja Pasha (PW56) did
not identify A3 in my proceedings vide Ex.P415.
Similarly Shaik Ismail (PW57) did not identify
both the suspects in my proceedings vide
Ex.P415. Similarly T.Venkatesh (PW67) did not
identify A4 1.e., Tahseen Akthar in my
proceedings vide Ex.P415. Similarly Merugu
Illaiah (PW59) did not identify both the suspects
in my proceedings vide Ex.P415. Similarly Abu
Bhakar (PW72) did not identify A3 but wrongly
identified another non-suspect. Similarly
M.P.Chanderan (PW73) did not identify A3 and
identified some other non-suspect wrongly. It is
true that in Ex.P415 I have mentioned that both
the suspects have complained before me that the
Police have brought some persons and showed
them to those persons when they were in Police
Custody.”
viii) PW.139, VIII Metropolitan Magistrate, Cyberabad also
conducted TIP vide Ex.P415 proceedings. He deposed in his chief-
examination as under:
“I am presently working as XIII Metropolitan
Magistrate, Cyberabad, RR District at LB Nagar.
Previously I worked as AJCJ-cum-XVI
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
Metropolitan Magistrate, Cyberabad, RR District
at Kukatpally. Miyapur from 2012 to 2015
On 09-07-2014 received requisition from
Deputy Superintendent of Police, Chief
Investigating Officer, NIA, Hyderabad to conduct
the TI parade of the Accused No.3 Zia-ur-
Rahman @ Waqas @ Javed Ahmed @ Nabeel
Ahmed and the Accused No.4 Mond. Taseen
Akhtar @ Hassan @ Monu. Accordingly, I fixed
the date of parade on 26-07-2014 at Central
Prison, Cherlapally and issued summons to the
witnesses. I submitted a letter to Hon’blę MSJ,
RR District seeking permission to conduct TI
parade proceedings and also addressed a letter to
Jail Authorities, Cherlapally Central Prison
asking them tomake necessary arrangements.
On 26-07-2014 at 10:30 am I reached the Central
Prison to conduct Ti parade. The Police
concerned produced the witnesses i.e., PW57, 59,
72, 73 and 124 after duly serving summons on
them. Then verified the summons and particulars
of the witnesses i.e., PW57, 59, 72, 73 and 124
mentioned in the requisition and recorded the
preliminary statements of them in the Office
Room of Deputy Superintendent. Central Prison,
Cherlapally.
The witnesses expressed their capability to
identify the suspects The statements of the
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016witnesses i.e., PW57, 59, 72, 73 and 124 are
enclosed along with the proceedings. Thereafter I
asked the witnesses to sit in rooms allotted to
them at the Ingate of Central Prison Thereafter I
proceeded to the Conference Hall located at the
Upper Floor of Central Prison where the parade
proceedings are arranged. I directed the Jail
Authorities to produce five non-suspects who are
having similar features, height, general
appearance, complexion as that of the accused
No.3/suspect. I obtained the names and
signatures/thumb impressions of the non-suspects
and enclosed along with the proceedings.
I called for A3. All the non-suspects were
standing in a row then I asked A3 to choose his
position in the row and he choose and stood in
between non-suspect 2 and non-suspect 3. Then I
asked my attender to bring the witnesses PW124,
72, 73 who identified A3 one after the other and
precaution was taken that the witness after
identification does not meet the other witnesses
and there is no chance of access among the
witnesses to interact with each other during the
proceedings. Then after handing over the non-
suspects to the Jail Authorities I recorded the
statements of the suspect/accused No.3 and he
stated that he has no grievance and no objection
in the manner in which the TI parade proceedings
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016were conducted by me. Then the accused No.3
was handed over to the Jail Authorities.
Thereafter directed the Jail Authorities to
produce another set of five non-suspects who are
having similar features, height, general
appearance, complexion as that of the accused
No.4/suspect obtained the names and
signatures/thumb impressions of the non suspects
and enclosed along with the proceedings.
I called for A4 All the non-suspects were
standing in a row then I asked A4 to choose his
position in the row and ne choose and stood in
between non-suspect 2 and non-suspect 3. Then I
asked my attender to bring the witnesses PW59,
57 who identified A4 one after the other and
precaution was taken that the witness after
identification does not meet the other witnesses
and there is no chance of access among the
witnesses to interact with each other during the
proceedings. Then after handing over the non-
suspects to the jail Authorities I recorded the
statements of the suspect/accused No.4 and he
stated that he has no grievance and no objection
in the manner in which the TI parade proceedings
were conducted by me. Then, the accused No.4
handed was handed over to the Jail Authorities.
During the TI parade proceedings of A3 and A4
I have taken all the precautions and asked A3 and
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016A4 respectively in their proceedings whether they
wish to change their position in the row or they
would like to change their dress or shirt with that
of non-suspect but A3 and A4 stated ‘No’, in their
respective proceedings.
I have taken all the precautions and followed the
procedure as per the Provisions prescribed under
rule 34 of Criminal Rules of Practice while
conducting Tl parade. Further I have taken care
that neither the Police Officials nor the Jail
Personnel are present at the time of Ti parade.
Thereafter I concluded the proceedings at 01-30
pm. Along with the proceedings I enclosed
preliminary statements ofthe witnesses for A3
and A4 and also the list of non-suspects for A3
and A4 and served summons and statement of the
suspects A3 and A4. Ex P437 is the TI
proceedings conducted by me on 26-01-201
including the statements of the witnesses,
signatures of suspects a non-suspects containing
13 sheets. The entire proceedings drafted in my
handwriting. Ex.P2437 proceedings were sent to
the Hon’ble I Metropolitan Sessions Judge-cum-
Special NIA Court, Nampally, Hyderabad,
through incharge Magistrate under Ex.P438
Covering letter.”
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
ix) During cross-examination, this witness has admitted as
under:
“It is true that it is mentioned in Ex.P437 that I
received the requisition from the DSP, Chief
Investigating Officer, NIA, Hyderabad to conduct
the TI proceedings on 09-07-2014, The witness
adds that the Hon’ble Metropolitan Sessions
Judge, Cyberabad, RR District has . nominated
me and relevant papers were received through
Hon’ble Metropolitan Sessions Judge,
Cyberabad, RR District but the same is not
mentioned in Ex.P437. It is true that before
conducting the parade I submitted a letter to the
Hon’ble Metropolitan Sessions Judge Cyberabad,
RR District for permission to conduct TI parade
and also letter addressed to the Jail Authorities
for making necessary arrangements. It is true that
I have not mentioned in Ex.P437 that after
receiving my letter, the Hon’ble Metropolitan
Sessions Judge Cyberabad, RR District accorded
me permission/nominated me to conduct Ti
parade in this case. The witness volunteers that I
received Nomination Orders from the Hon’ble
Metropolitan Sessions Judge Cyberabad, RR
District even prior to sending the said Letter but
the same is not mentioned in Ex.P437. It is true
that the Chief Judicial Magistrate of Ranga
Reddy District did not issue any directions
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016nominating me to conduct TI parade in this case.
The witness volunteers that the Hon’ble
Metropolitan Sessions Judge, Cyberabad, RR
District nominated me for conducting Ti parade
but the same is not mentioned in Ex.P437.Ido not
remember whether the suspects were sporting
long beards at the time of conducting the TI
parade under Ex.P437. It is true that all the
witnesses did not attribute the exact Individual
specific overt acts against the suspects A3 and A4
and the circumstances in which they saw the
suspects earlier. The witness, volunteers that the
witnesses gave identification particulars of the
suspects. It is true that I did not ask the witnesses
whether they admit prior acquaintance with the
suspects whom they identified. The witness adds
that the question No.6 as recorded in the
statement it is questioned as “Did you see the
suspect at any time after the Incident?” and the
witnesses answered as “No”. It is true that I did
not mention the approximate height, weight and
facial features and identification marks of the
non-suspects in the proceedings under Ex.P437.
The witness adds that the non-suspects were
having similar feature, height, general
appearance, complexion as that of the accused
No.3 and 4 as mentioned in the proceedings. It is
true that I did not mentioned in Ex.P437 that I
verified the ID proof of the witnesses before
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016conducting the TI parade. The witness adds that I
verified the ID proofs of the witnesses and after
being satisfied with their identity then only I
proceeded to conduct TI parade. It is true that I
did not ask the witnesses whether they had
attended TI parade earlier in this case in respect
of the same suspects viz., the accused No.3 and 4.
I do not remember exactly whether it was
mentioned in requisition given to me to conduct
the TI parade that the same witnesses were
already summoned by Hon’ble VIII Metropolitan
Magistrate (PW130) to identify A3 and A4 on
28-06-2014.
I do not remember whether I asked the Chief
Investigating Officer, NIA, Hyderabad that
earlier any TI parade was conducted by another
Magistrate in respect of A3 and A4 with the same
witnesses who participated in the proceedings
conducted by me. It is true that in my
proceedings i.e., Ex.437 it is not mentioned
whether any earlierTI parade was conducted or
not by PW130 in respect of the same witnesses
and the same accused No 3 and 4. It is true that
after conclusion of entire proceedings under Ex.
P437 I took the signatures the accused No.3 and 4
after their answering of the questions posed by
me on the 12thand 13thsheet of my proceedings
under Ex.P437. It is not true to suggest that A3
and A4 stated before me that they were shown to
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016these five witnesses during their Police custody
in NIA office and also that earlier TI parade was
conducted on 28-06-2014 by the Hon’ble VIll
Metropolitan Magistrate in which the same
witnesses were summoned to the jail and they did
not identify the accused No.3 and 4 at the time of
making their statements before me after the
conclusion of the proceedings under Ex.P437. It
is true that in Ex. P437 there is no stamp and seal
of the Court of the XVI Metropolitan Magistrate,
Cyberabad, RR District. The witness volunteers
that on the first page mentioned my Name and
Designation. It is true whenever a requisition for
TI parade it will be allotted a Miscellaneous
Petition Number by the Hon’ble Metropolitan
Sessions Judge, RR District and only after that it
will be sent to the concerned Magistrate who is
nominated thereon to conduct the TI parade. It is
true in Ex. P437 there is no mention of the
Crl.M.P.No. allotted to these proceedings for
nominating me to conduct the proceedings under
Ex.P437. It is not true to suggest that as the
Crl.M.P.No. is not mentioned in my proceedings
under Ex. P437, there is no record in respect of
these proceedings in my Court. It is not true to
suggest that I did not follow procedure prescribed
by Law for conducting Test Identification parade
vide Ex.P437 and that I conducted these
proceedings without any Nomination from the
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016Hon’ble Metropolitan Sessions Judge, Cyberabad,
Ranga Reddy District at LB Nagar.”
Thus, nothing contra was elicited from him during cross-
examination.
x) As discussed above, learned counsel for the appellants
contended that TIP was not conducted as per the procedure laid
down under Rule – 34 of the Criminal Rules of Practice. They placed
reliance on the admissions made by the aforesaid witnesses during
cross-examination, but they failed to elicit anything contra to contend
that TIP was conducted in violation of the procedure laid down under
Rule – 34 of the Criminal Rules of Practice. Therefore, the
contention of learned counsel for the appellants that the said TIP is
liable to be vitiated and the accused are entitled for benefit of doubt
is unsustainable.
xi) As discussed above, there is no violation of procedure laid
down under Rule – 34 of the Criminal Rules of Practice by PWs.98,
114, 130 and 139 in conducting TIP. Learned counsel for the
appellants made their submissions on the said aspects before the
learned trial Court, and on consideration of the said submissions, the
learned trial Court referring to the provisions of Criminal Rules of
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
Practice, Code of Criminal Procedure and the Evidence Act and also
decisions of various HighCourts and the Apex court in paragraph
Nos.530 to 549 held in paragraph No.550 as under:
“550. At this stage the learned Special Public
Prosecutor submitted that the identification of
Accused by witnesses in the court was an
examination in itself for the reason of the steps
taken by the accused during the course of trial in
the court, by hiding their faces with scarfs,
showing their faces only during identification in
the court by the witnesses and adopting the
procedure of sitting in their own different
sequence for every witness, wearing same type of
dressing and sporting similar beard and hair style.
In the present case on hand, the accused No.2
was identified by PW55, PW56, PW57, PW58,
PW60, PW62, PW64, PW65, PW67, PW69,
PW70, PW71, PW81, PW91, PW92, PW99,
PW124, PW127, PW131, PW141. The accused
No.3 was identified by PW55, PW58, PW64,
PW65, PW67, PW68, PW70, PW72, PW73,
PW112, PW116, PW118, PW124, PW126,
PW127, the accused No.4 was identified by
PW54, PW57, PW58, PW59, PW67, PW82,
PW83, PW116, PW118, the accused No.5 was
identified by PW72, PW81, PW99, PW131, the
accused No.6 was identified by PW111, PW147.
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016However the accused were identified by the
above witnesses for the reasons that their faces
were printed in their minds because no prudent
man wearing jean pants and T-shirts would
purchase cycles and the big size cookers and
secondly when the witnesses got an opportunity
to see the faces for a long time when they were
staying at Abdullapurmet, Zyphyr Heights,
Mangalore, Malakpet parking area, scene of
offence by PW143. Therefore this Court has no
hesitation to hold that the learned Magistrates
followed the procedure prescribed in the Criminal
Rules of Practice in conducting Test
Identification Parades. Moreover the Sessions
Judge as referred in the Criminal Rules of
Practice including the Assistant Sessions Judge
can nominate the Magistrate for conducting Test
Identification Parade. Moreover the objection
raised by the learned counsel for the accused with
regard to the nomination of Magistrate for TIP
and for 164 Cr.P.C statements is neither illegality
nor irregularity which vitiates the proceedings
U/Sec.460 and 461 of Cr.P.C, which reads as:
460. Irregularities which do not vitiate
proceedings. If any Magistrate not empowered by
law to do any of the following things,namely:- (a)
to issue a search-warrant under section 94; (b) to
order, under section 155, the police to investigate
an offence; (c) to hold an inquest under section
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016176; (d) to issue process under section 187, for
the apprehension of a person within his local
jurisdiction who has committed an offence
outside the limits of such jurisdiction; (e) to take
cognizance of an offence under clause (a) or
clause (b) of sub-section (1) of section 190 ; (f) to
make over a case under sub-section (2) of section
192; (g) to tender a pardon under section 306 ; (h)
to recall a case and try it himself under section
410 ; or (i) to sell property under section 458 or
section 459, erroneously in good faith does that
thing, his proceedings shall not be set aside
merely on the ground of his not being so
empowered. Section 461 Cr.P.C: Irregularities
which vitiate proceedings: If any Magistrate, not
being empowered by law in this behalf, does any
of the following things, namely: (a) attaches and
sells property under section 83; (b) issues a
search-warrant for a document, parcel or other
thing in the custody of a postal or telegraph
authority; (c) demands security to keep the peace;
(d) demands security for good behaviour; (e)
discharges a person lawfully bound to be of good
behaviour; (f) cancels a bond to keep the peace;
(g) makes an order for maintenance; (h) makes an
order under section 133 as to a local nuisance; (i)
prohibits, under section 143, the repetition or
continuance of a public nuisance; (j) makes an
order under Part C or Part D of Chapter X; (k)
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016
takes cognizance of an offence under clause (c)
of subsection (1) of section 190 (l) tries an
offender; (m) tries an offender summarily; (n)
passes a sentence, under section 325, on
proceedings recorded by another Magistrate; (o)
decides an appeal; (p) calls, under section 397,
for proceedings; or (q) revises an order passed
under section 446, his proceedings shall be void.”
xii) Thus, the learned trial Court on consideration of the said
submissions, depositions of the aforesaid witnesses and the
procedure laid down under Rule – 34 of the Criminal Rules of
Practice held as above. There is no error in the said finding.
87. NON-RECORDING OF DYING DECLARATION:
i) Learned counsel for the appellants further contended that
the Investigating Officer did not record dying declarations.
ii) In the present case, there are 18 deaths and injuries to 131
persons. To prove the offences, the prosecution has examined the
above said witnesses and got marked the aforesaid documents.
iii) In the light of the said submission, it is relevant to note
Section – 32 of the Evidence Act deals with ‘statement of relevant
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KL,J & PSS,J
Crl.A. No.1299 of 2016 along with RT No.1 of 2016fact by person who is dead or cannot be found, etc., is relevant’ and
the same is extracted as under:
“32. Cases in which statement of relevant fact
by person who is dead or cannot be found, etc.,
is relevant.
Statements, written or verbal, or relevant facts,
made by a person who is dead, or who cannot be
found, or who has become incapable of giving
evidence, or whose atttendance cannot be
procured, without an amount of delay or expense
which under the circumstances of the case
appears to the Court unreasonable, are
themselves relevant facts in the following cases :
(1) When it relates to cause of death. – When
the statement is made by a person as to the
cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person’s death comes into
question.Such statements are relevant
whether the person who made them was or
was not, at the time when they were made,
under expectation of death, and whatever
may be the nature of the proceeding in
which the cause of his death comes into
question.
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(2) Or is made in course of business. – When
the statement was made by such person in
the ordinary course of business, and in
particular when it consists of any entry or
memorandum made by him in books kept
in the ordinary course of business, or in
the discharge of professional duty; or of an
acknowledgement written or signed by
him of the receipt of money, goods,
securities or property of any kind; or of a
document used in commerce written or
signed by him, or of the date of a letter or
other document usually dated, written or
signed by him.
(3) Or against interest of maker. – When the
statement is against the pecuniary or
proprietary interest of the person making
it, or when, if true, it would expose him, or
would have exposed him to a criminal
prosecution or to a suit for damages.
(4) Or gives opinion as to public right or
custom, or matters of general interest. –
When the statement gives the opinion of
any person, as to the existence of any
public right or custom or matter of public
or general interest, of the existence of
which, if it existed, he would have been
likely to be aware, and when such
statement was made before any
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controversy as to such right, custom or
matter had arisen.
(5) Or relates to existence of relationship. –
When the statement relates to the
existence of any relationship by blood,
marriage or adoption between persons as
to whose relationship by blood, marriage
or adoption the person making the
statement had special means of
knowledge, and when the statement was
made before the question in dispute was
raised.
(6) Or is made in will or deed relating to
family affairs. – When the statement
relates to the existence of any relationship
by blood, marriage or adoption between
persons deceased, and is made in any will
or deed relating to the affairs of the family
to which any such deceased person
belonged, or in any family pedigree, or
upon any tombstone, family portrait or
other thing on which such statements are
usually made, and when such statement
was made before the question in dispute
was raised.
(7) Or in document relating to transaction
mentioned in section 13, clause (a). –
When the statement is contained in any
deed, will or other document which relates
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to any such transaction as is mentioned in
section 13, clause (a).
(8) Or is made by several persons and
expresses feelings relevant to matter in
question. – When the statement was made
by a number of persons, and expressed
feelings or impressions on their part
relevant to the matter in
question.Illustrations.
Illustrations
(a)….”
iv) There is no dispute that solely basing on the dying
declaration, conviction can be recorded. It is a crucial piece of
evidence. Reliability or otherwise can be considered by the trial
Court. Dying Declaration does not require any corroboration as long
as it inspires confidence in the mind of the Court and that it is free
from any tutoring.
v) But, at the same time, non-recording of dying declaration is
not fatal to the case of prosecution, more particularly in a matter like
this. On consideration of the evidence, both oral and documentary,
the learned trial Court convicted the appellants – accused Nos.2 to 6.
Therefore, the contention of learned counsel for the appellants that in
the present case, dying declarations of the deceased were not
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recorded and on the said ground, the accused are entitled for acquittal
cannot be accepted.
vi) It is apt to note that the appellants herein did not raise the
said contention during trial before the trial Court and there was no
cross-examination of the Investigating Officers on the said aspects.
Therefore, there is no discussion/finding by the trial Court in the
impugned judgment on the said aspect.
88. JURISDICTION OF TRIAL COURT:
i) Accused Nos.2 to 5 filed a writ petition vide W.P.
No.27445 of 2016 challenging the jurisdiction of V Additional
Metropolitan and Sessions Judge, Rangareddy District at L.B. Nagar,
for trial of offences under NIA Act on various grounds. Vide order
dated 29.08.2016, this Court dismissed the said writ petition.
Challenging the said order, they have filed a Special Leave Petition
vide SLP (Crl.) No.7014 of 2016 before the Hon’ble Supreme Court.
Vide order dated 14.09.2016, the Apex Court dismissed the said SLP.
They have also filed a review petition vide R.P. (Crl.) No.818 of
2016, to review the order dated 14.09.2016 in SLP (Crl.) No.7014 of
2016. The Apex Court dismissed the said review petition on
15.12.2016.
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ii) In the light of the above, learned counsel for the appellants
cannot contend that learned V Additional Metropolitan and Sessions
Judge, Rangareddy District at L.B. Nagar for the trial of offences
under the NIA Act has no jurisdiction. The learned trial Court
pronounced the judgment on 13.12.2016, and on hearing the accused
on sentence, vide order dated 19.12.2016, the learned trial Court
awarded death penalties on the accused. There is no error in it.
89. SANCTION PROCEEDINGS:
i) Learned counsel for accused would contend that the
sanctions obtained against accused Nos.2 and 5 vide Exs.P393,
accused Nos.1, 3 and 4 vide Ex.P394 and accused No.6 vide Ex.P395
are without following due process as contemplated under UAP Act.
They further contended that before granting sanction,
Recommendation of Review Committee has to be obtained as
contemplated under Section – 45 (2) of UAP Act and on the basis of
the same, sanction has to be accorded. Without following mandatory
procedure, the sanctions accorded under Section – 45 (1) (i) of UAP
Act are invalid and do not hold any significance. As far as accused
No.6 is concerned, sanction in respect of Sections – 3 and 5 of ES
Act was not accorded against him and that no independent sanction
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was taken. Thus, the conviction recorded by learned trial Court for
the offences under UAP Act and other provisions of law is bad in
law.
ii) Whereas, learned Special Public Prosecutor for NIA would
contend that the sanctions obtained against the accused are valid and
that the accused have not challenged the issuance of sanctions at any
point of time during trial. He further contended that after perusing
and examining the entire record and facts of the case and on finding
a prima facie case against the accused. Even to prove the sanctions,
the prosecution examined PWs.119, 120, 132 and 156.
iii) In view of the aforesaid rival submissions, before dealing
with the said issue, it is relevant to note Section – 45 of UAP Act,
Sections – 3, 5 and 7of ES Act and Section – 196 of Cr.P.C. and the
same are as under:
“45. Cognizance of offences.–(1) No court
shall take cognizance of any offence–
(i) under Chapter III without the previous
sanction of the Central Government or any
officer authorised by the Central
Government in this behalf;
(ii) under Chapter IV and VI without the
previous sanction of the Central
Government or, as the case may be, the
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State Government, and where such offence
is committed against the Government of a
foreign country without the previous
sanction of the Central Government.
(2) Sanction for prosecution under sub-section (1)
shall be given within such time as may be
prescribed only after considering the report of
such authority appointed by the Central
Government or, as the case may be, the State
Government which shall make an independent
review of the evidence gathered in the course of
investigation and make a recommendation, within
such time as may be prescribed, to the Central
Government or, as the case may be, the State
Government.”
“3. Punishment for causing explosion likely to
endanger life or property.–Any person who
unlawfully and maliciously causes by–
(a) any explosive substance an explosion of a
nature likely to endanger life or to cause serious
injury to property shall, whether any injury to
person or property has been actually caused or
not, be punished with imprisonment for life, or
with rigorous imprisonment of either description
which shall not be less than (ten years, and shall
also be liable to fine;
(b) any special category explosive substance an
explosion of a nature likely to endanger life or to
cause serious injury to property shall, whether
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caused or not, be punished with death, or rigorous
imprisonment for life, and shall also be liable to
fine.”
“5. Punishment for making or possessing
explosives under suspicious circumstances.–
Any person who makes or knowingly has in his
possession or under his control any explosive
substance or special category explosive
substance, under such circumstances as to give
rise to a reasonable suspicion that he is not
making it or does not have it in his possession or
under his control for a lawful object, shall, unless
he can show that he made it or had it in his
possession or under his control for a lawful
object, be punished,–
(a) in the case of any explosive substance, with
imprisonment for a term which may extend to ten
years, and shall also be liable to fine;
(b) in the case of any special category explosive
substance, with rigorous imprisonment for life, or
with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable
to fine.”
“7. Restriction on trial of offences.–No court
shall proceed to the trial of any person for an
offence against this Act except with the consent
of the District Magistrate.”
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iv) PW.119, the then District Collector, deposed in his chief-
examination as under:
“I am working as VC & MD APIIC at Hyderabad
since 1st September, 2015 Previously I worked as
Collector and District Magistrate, Ranga Reddy
District from July, 2013 to June, 2014. I received
requisition from SP & CIO, NIA, Hyderabad vide
C.No.SP/NIA/2013-14 dt. 10-01-2014 requesting
issuance of Prosecution Orders U/Sec. 3 & 5 of
Explosives Substances Act, 1908 which is
marked as Ex. P391. Under the Powers conferred
U/Sec. 7 of Explosive Substances Act I issued
sanction proceedings giving permission to
prosecute the accused namely Accused No.2
Asadullah Akhtar @ Haddi @ Tabrez @ Daniyal
@ Asad, Accused No.5 Mohammed Ahmed
Siddibapa @ Yasin Bhatkal @ Sharukh on 21-
02- 2014 for prosecuting the accused persons for
the offences U/Sec.3 and 5 of Explosive
Substances Act. The said sanction order is Ex
P392 and it bears my seal and signature.”
a) In the cross-cross-examination of the aforesaid witness, no
material contradictions have been elicited to disprove the case of the
prosecution
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v) PW.120, the then under Secretary deposed in his chief-
examination as under:
“I have been working as Under Secretary,
Ministry of Home Affairs, Government of India
since 2012. I received two proposals from NIA
along with Investigation reports containing
statements of the witnesses and other related
documents seeking sanction of Central
Government for prosecuting Accused No. 1
Mohammad Riyaz @ Riyaz Bhatkal @ Ismail
Shahbandri @ Riyaz Ismail Shahbandri, Accused
No.2 Asadullah Akthar @ Haddi @ Tabrez
@Daniyal @ Asad, Accused No.3 Zia ur
Rahaman @ Waqas @ Javed @ Ahmed @
Nabeel Ahmed, Accused No.4 Mohd Taseen
Akhtar @ Hassan @ Monu, Accused No.5
Mohammed Ahmed Siddibapa @ Yasin Bhatkal
@ Sharukh. Firstly the proposal was referred to
the Authority constituted U/Sec.45 (2) of JAP
Act comprising of Justice Sri K. Rama Murthy,
Retire High Court Judge and Sri K.D. Singh,
Former Law Secretary for making Independent
review of the evidence gathered in the course of
investigation by NIA. Based on the
recommendations of the Authority and perusal of
ay records and application of mind I issued
prosecution sanction for prosecuting all the above
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Secretary.
The first sanction was issued on 28-02-
2014 against A2 and A5 under Ex. P393 which is
faxed by our Office. The second sanction was
issued on 10-09-2014 against A1, A3 and A4
under Ex. P394 (3 sheets) along with covering
letter under Ex. P394-A which is the copy sent to
the DG, NIA. I’m authorized to sign on behalf of
the Hon’ble President of India in accordance with
Authentication (Orders and other Instruments)
Rules, 2002.”
a) In the cross-cross-examination of the aforesaid witness, no
material contradictions have been elicited to disprove the case of the
prosecution
vi) PW.132 – Mr. N. Sridhar, the then Collector and District
Magistrate, Rangareddy District, deposed in his chief-examiantion as
under:
“I am working as Chairman and Managing
Director, Singareni Collieries Company Limited
since 1 January, 2015. Previously worked as
Collector and District Magistrate, Ranga Reddy
District from June, 2014 to December, 2014. I
received requisition from SP & CIO, NIA,
Hyderabad vide C.No.SP-NIA/2013-14 dt 26-06-
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U/Sec.3 & 5 of Explosives Substances Act, 1908.
Under the Powers conferred U/Sec. 7 of
Explosive 15 Substances Act I issued sanction
proceedings giving permission to prosecute the
accused namely Accused No.3 Zia-ur-Rahman @
Waqas @Javed @ Ahmed @ Nabeel Ahmed,
Accused No 4 Mohd Taseen Akhtar @ Hassan @
Monu on 11-08-2014 for prosecuting the accused
persons for the offences U/Sec 3 and 5 of
Explosive Substances Act. The said sanction
order is marked as Ex. P420 and it bears my seal
and Signature.”
a) In the cross-cross-examination of the aforesaid witness, no
material contradictions have been elicited to disprove the case of the
prosecution.
vii) PW.156, the then Collector, Hyderabad, deposed in his
chief-examination as under:
“I am working as Commissioner of Excise, Govt.
of Andhra Pradesh since 3rd of November, 2015,
Previously I worked as District Collector,
Hyderabad from July, 2013 to January 2015 I
received requisition from SP & CIO, NIA,
Hyderabad vide C.No SP/NIA/2013-14 dt 10-01-
2014 requesting issuance of Prosecution Orders
U/Sec 3 & 5 of Explosives Substances Act, 1908
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the Powers conferred U/Sec. 7 of Explosive
Substances Act issued sanction proceedings
giving permission to prosecute the accused
namely Accused No.2 Asadullah Akthar @
Haddi @ Tabrez @ Daniyal @ Asad, Accused
No.5 Mohammed Ahmed Siddappa @Yasin
Bhatkal @ Sharukh on 10-03-2014 for
prosecuting the accused persons for the offences
U/Sec.3 and 5 of Explosive Substances Act The
said sanction order is Ex P484 and it bears my
seal and signature.
I received requisition from SP & CIO. NIA.
Hyderabad vide C No. SP/NIA/2013-14 dt 26-06-
2014 requesting issuance of Prosecution Orders
U/Sec 3 & 5 of Explosives Substances Act, 1908
which is marked as Ex P485 (True copy). Under
the Powers conferred U/Sec. 7 of Explosive
Substances Act, I issued sanction proceedings
giving permission to prosecute the accused
namely Accused No. 3 Zia ur Rahaman @ Waqas
@ Javed @ Ahmed @ Nabeel Ahmed and
Accused No 4 Mohd Taseen Akhtar @ Hassan @
Monu on 19.07.2014 for prosecuting the accused
persons for the offences U/Sec.3 and 5 and Set
Explosive Substances Act. The said sanction
order is Ex. P486 and it bears my seal and
signature.”
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a) In the cross-cross-examination of the aforesaid witness, no
material contradictions have been elicited to disprove the case of the
prosecution.
viii) Perusal of sanction orders vide Exs.P392, 393, 394, 395
would reveal that Ex.P393 is the sanction order dated 28.02.2014 in
respect of accused Nos.2 and 5, Ex.P394 – sanction order dated
10.09.2014 is in respect of accused Nos.1, 3 and 4, while Ex.P395 –
sanction order, dated 27.05.2015 is in respect of accused No.6.
Ex.P392 sanction order dated 21.02.2014 is the sanction order issued
by PW119 granting permission for the prosecution of Accused Nos.2
and 5 under Sections – 3 and 5 of the ES Act. It bears the official seal
and signature of PW119. During cross-examination, he has stated the
circumstances under which he made the requisition vide Ex. P391.
ix) As stated above, Ex.P394 is the second sanction dated
10.09.2014 against accused Nos.1, 3 and A4. It also received
recommendations from the Authority constituted under Section – 45
(2) of the UAP. PW.120 deposed about the said document stating that
the sanctions were granted after due diligence and approval from the
Home Secretary. Ex.P394-A is the covering letter sent to the DG,
NIA. Ex.P394-B is the attested copy of the sanction order of accused
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Nos.1, 3 and 4 for their prosecution. Ex.P394-C is the
rrecommendation of the Review Committee proceeding along with
the enclosed letter given by Mr. K. Ramamurthy recommending
sanction against accused No.1. Ex.P395 is the ssanction dated
27.05.2015 against accused No.6.
x) It is also apt to note that PW132 deposed with regard to
issue of the sanction order on 11.08.2014 in respect of accused Nos.3
and 4 and the same was marked as Ex.P420. The same was based on
the requisition received from the SP & CIO, NIA, Hyderabad, and
granted permission for prosecuting accused under Sections – 3 and 5
of the ES Act. PW156, the then Commissioner of Excise,
Government of Andhra Pradesh, deposed about issuing of sanction
order on 10.03.2014 against accused Nos.2 and 5 and the same is
marked as Ex. P484, which was also granted based on the
requisition received from SP & CIO, NIA, Hyderabad and accorded
permission for prosecuting the said accused under Sections – 3 and 5
of the ES Act. PW156 also deposed about issuing the sanction order
on 19.07.2014 in respect of accused Nos.3 and 4 and the same was
marked as Ex.P486, which was granted based on the requisition
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received from SP & CIO, NIA, Hyderabad, and provided permission
for prosecuting them under Sections – 3 and 5 of the ES Act.
xi) Considering the aforesaid evidence and the documents, the
learned trial Court discussed with regard to the sanction proceedings
in the impugned judgment at paragraph Nos.392, 575, 396, 397, 398,
400, and 401 and arrived at a conclusion that the sanctions were
issued by competent authorities (PWs.119, 120, 132 and 156) after
due process and application of mind. Thus, there is no error in it.
xii) In State of Maharashtra v. Mahesh G. Jain44, the Apex
Court held as to the valid sanction as under:
“14.1. It is incumbent on the prosecution to prove
that the valid sanction has been granted by the
sanctioning authority after being satisfied that a
case for sanction has been made out.
14.2. The sanction order may expressly show that
the sanctioning authority has perused the material
placed before it and, after consideration of the
circumstances, has granted sanction for
prosecution.
14.3. The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and its satisfaction was44
. (2013) 8 SCC 119
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before it.
14.4. Grant of sanction is only an administrative
function and the sanctioning authority is required
to prima facie reach the satisfaction that relevant
facts would constitute the offence.
14.5. The adequacy of material placed before the
sanctioning authority cannot be gone into by the
court as it does not sit in appeal over the sanction
order.
14.6. If the sanctioning authority has perused all
the materials placed before it and some of them
have not been proved that would not vitiate the
order of sanction.
14.7. The order of sanction is a prerequisite as it
is intended to provide a safeguard to a public
servant against frivolous and vexatious litigants,
but simultaneously an order of sanction should
not be construed in a pedantic manner and there
should not be a hypertechnical approach to test its
validity.”
xiii) The learned trial Court also observed that valid sanctions
were issued for prosecuting the accused, considering the material on
record. In view of the same, the contention of the learned counsel
for accused that the sanction proceedings were not in accordance
with the provisions of the UAP Act and ES Act is unsustainable.
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90. COGNIZANCE:
i) Learned counsel for the appellants straneously contended
that learned trial Court did not give reasons while taking cognizance
of the aforesaid offences against the appellants. However, the
accused did not question the cognizance order and learned trial Court
on consideration of entire evidence, both oral and documentary,
recorded conviction against the accused. At the appeal stage,
accused cannot contend that cognizance order is in violation of the
procedure laid down under Section – 190 of Cr.P.C.
ii) In S.K. Sinha, Chief Enfocement Officer v. Videocon
International Limited 45, the Apex Court held as under:
“12. The expression cognizance has not been defined in
the Code. But the word cognizance is of indefinite import.
It has no esoteric or mystic significance in criminal law. It
merely means become aware of and when used with
reference to a Court or a Judge, it connotes to take notice
of judicially. It indicates the point when a Court or a
Magistrate takes judicial notice of an offence with a view
to initiating proceedings in respect of such offence said to
have been committed by someone. Taking cognizance
does not involve any formal action of any kind. It occurs
as soon as a Magistrate applies his mind to the suspected
45
. AIR 2008 SC 1213
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commencement of criminal proceedings. Taking of
cognizance is thus a sine qua non or condition precedent
for holding a valid trial. Cognizance is taken of an offence
and not of an offender. Whether or not a Magistrate has
taken cognizance of an offence depends on the facts and
circumstances of each case and no rule of universal
application can be laid down as to when a Magistrate can
be said to have taken cognizance. Chapter XIV (Sections
190-199) of the Code deals with Conditions requisite for
initiation of proceedings. Section 190 empowers a
Magistrate to take cognizance of an offence in certain
circumstances. Sub-section (1) thereof is material and
may be quoted in extenso.
1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge,
that such offence has been committed.”
iii) In the light of the aforesaid principle, the aforesaid
contention of learned counsel for the appellants cannot be accepted.
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91. CONSPIRACY AND SUM AND SUBSTANCE OF
THE FINDINGS OF THIS COURT:
i) In view of the aforesaid discussion, learned trial Court
having considered the entire evidence, both oral and documentary,
arrived at the conclusion that the accused persons have committed
the aforesaid offences.
ii) The evidence let in by the prosecution would disclose the
role of each accused in commission of the aforesaid offences. The
evidence with regard to the role of accused No.3, who is expertise in
preparation of IEDs, using of hand grenades, training in weapons
including small arms, like Pistol and other weapons, such as AK-47,
Light Machine Gun, Rocket Launchers, would disclose that he came
to India from Pakistan and joined the other accused, conspired with
them and participated in several bomb blasts across the Country
including the subject crime.
iii) Section – 10 of the Evidence Act deals with ‘things said or
done by conspirator in reference to common design’ and the same is
extracted as under:
“Where there is reasonable ground to believe that two or
more persons have conspired together to commit an
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written by any one of such persons in reference to their
common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as
against each of the persons believed to so conspiring, as
well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such
person was a party to it.”
iv) With regard to the role of other accused is also clear in
commission of the aforesaid offences. During chat of accused No.5
with accused No.1, accused No.5 advised accused No.1 to make thin
boat shaped IED for the blast of 1 kg. explosive each as the same
would be easy for carrying even by tying on the stomach. He also
advised to use Picric Acid as small IEDs will have more impact. On
the instructions of accused No.1, accused No.2 went to Mangalore
and therafter came to Hyderabad by booking ticket from VRL Travel
Agency disclosing his name as Danish and contacted accused No.4,
who took him to Abdullapurmet and stayed there in a rented house
took by accused No.4. After staying there for three days, accused
No.2 left for Mangalore by VRL Travels in the name of ‘Danish’.
He along with accused No.3 brought the explosive material by the
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said Travels and reached the Hyderabd on 16th February and kept the
said material in the rented house at Abdullapurmet.
v) As per the instructions of accused No.1, they conducted
reccee in the areas of Malakpet, Abids, Koti etc., and thereafter, they
decided to plant the bombs in Dilsukhnagar. The place and time was
also selected. They purchased a plastic sheet of one meter from a
shop for packing and filling the explosives inside the cooker. Before
conducting blasts, they conducted a test blast near Abdullapurmet.
On 20.02.2013, accused No.2 and 4 purchased an old cycle from one
cycle repairer shop. On the same day at about 9.00 P.M., accused
No.2 and 3 went to Mahalakshmi Steel Shop, where they stayed at
entrance of the shop, while accused No.4 went inside the shop and
purchased two 7½ letres capacity pressure cookers of Ganga Make
for preparing the IED. They returned to Abdullapurmet house and
enged in preparationof IEDs. They kept plastic sheet inside the
cooker and filled with explosive material.
vi) On 21.02.2013, accused Nos.2 and 4 purchased cycles
from jummerath bazaar. Thereafter, accused No.3 prepared the IED
by fixing the time for explosion at 7.00 P.M. After completing their
preparation of IEDs, they vacated the house at Abdullapurmet,
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reached the spot. After planting the IEDs, accused Nos.2 and 3 left
to Malakpet on foot and from there to Lakdikapool in an auto-
rickshaw, while accused No.4 left to an unknown place. Thereafter,
they learnt that two IEDs were exploded successfully. In the said
blasts, 18 persons were died including one unborn child and 131
were injured. Thus, it is an organized crime. All these
circumstances form a complete chain of events in commission of the
aforesaid offences by the accused. The prosecution proved the same
by examining the relevant witnesses and producing the relevant
documents. Considering the same, learned trial Court recorded
conviction against the accused. Therefore, there is no error in it for
the reason it falls under ‘the rarest of rare case’. However, the trial
Court acquitted accused Nos.2 to 6 for the offences under Sections –
10, 20, 38 (2) and 39 (2) of the UAP Act. The NIA did not prefer
any appeal challenging the said acquittal and, therefore, it attained
finality.
vii) On consideration of gravity of offence, conspiracy and the
manner in which the offence was committed, learned trial Court
recorded conviction against the accused and imposed the aforesaid
sentences including capital punishment of death penalty, holding that
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it is a rarest of rare case and capital punishment of death penalty can
be imposed on the accused.
92. DOCTRINE OF RAREST OF RARE CASE:
i) The Constitutional validity of the death penalty, upheld in
Bachan Singh v. State of Punjab46 stands as the unassailable
cornerstone of capital sentencing jurisprudence, mandating its
imposition only in the rarest of rare cases, where the alternative of
life imprisonment is unquestionably foreclosed. This standard is a
rigorous, inviolable framework that ensures judicial discretion is
exercised with application of judicial mind, neither capricious nor
disproportionate. The balance struck therein is a testament to the
dignity of human life, yet it acknowledges that offences of monstrous
magnitude and depravity exist that to withhold the ultimate penalty
would be a dereliction of this Court’s duty. This doctrine, forged in
the crucible of constitutional mandate, compels us to confront the
grim reality of crimes that shatter the bounds of civilized tolerance,
demanding a sanction commensurate with its horror.
ii) The imposition of the death penalty, as a sanction of last
resort, is governed by a jurisprudence crafted by the Apex Court,
46
. (1980) 2 SCC 684
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constitutional sanctity of the death penalty under Section – 302 of
IPC read with Section – 354(3) of the Cr.P.C., decisively rejecting
mandatory capital punishment in favor of guided judicial discretion.
iii) Constitution Bench of the Apex Court in Bachan Singh46,
after thorough discussion, rejected the challenge to the
constitutionality of the said provisions and noted that “Aggravating”
as well as “Mitigating Circumstances” to be considered for
imposition of sentence of death.
iv) The Apex Court opined that death is permissible only in
the “rarest of rare” cases, where the alternative of life imprisonment
is “unquestionably foreclosed.” Rooted in Article 21‘s sacrosanct
guarantee of life and liberty, this doctrine mandates a bifurcated
process–guilt determination followed by a sentencing hearing–
ensuring fairness and proportionality as non-negotiable imperatives.
It demands a meticulous balancing of aggravating circumstances,
pertaining to the crime’s nature and impact, against mitigating
factors, such as the accused’s age, socio-economic status, or
reformative potential, a framework refined in Machhi Singh v. State
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of Punjab 47 to include the “collective conscience” as a societal
barometer.
v) A three-Judge Bench of the Apex Court in Machhi Singh47
after analyzing the Constitution Bench decision in Bachan Singh46
held the following propositions for determination of rarest of rare cases:
“Death Sentence
32. The reasons why the community as a whole
does not endorse the humanistic approach
reflected in `death sentence-in-no-case’ doctrine
are not far to seek. In the first place, the very
humanistic edifice is constructed on the
foundation of `reverence for life’ principle. When
a member of the community violates this very
principle by killing another member, the society
may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realised that every
member of the community is able to live with
safety without his or her own life being
endangered because of the protective arm of the
community and on account of the rule of law
enforced by it. The very existence of the rule of
law and the fear of being brought to book
operates as a deterrent for those who have no
scruples in killing others if it suits their ends.
Every member of the community owes a debt to47
. (1983) 3 SCC 470
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ingratitude is shown instead of gratitude by
`killing’ a member of the community which
protects the murderer himself from being killed,
or when the community feels that for the sake of
self- preservation the killer has to be killed, the
community may well withdraw the protection by
sanctioning the death penalty. But the community
will not do so in every case. It may do so `in
rarest of rare cases’ when its collective
conscience is so shocked that it will expect the
holders of the judicial power centre to inflict
death penalty irrespective of their personal
opinion as regards desirability or otherwise of
retaining death penalty. The community may
entertain such a sentiment when the crime is
viewed from the platform of the motive for, or
the manner of commission of the crime, or the
anti-social or abhorrent nature of the crime, such
as for instance:
I. Manner of commission of murder
33. When the murder is committed in an
extremely brutal, grotesque, diabolical, revolting
or dastardly manner so as to arouse intense and
extreme indignation of the community.
For instance,
(i) when the house of the victim is set
aflame with the end in view to roast him
alive in the house;
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(ii) when the victim is subjected to
inhuman acts of torture or cruelty in
order to bring about his or her death;
(iii) when the body of the victim is cut
into pieces or his body is dismembered in
a fiendish manner;
II. Motive for commission of murder
34. When the murder is committed for a motive
which evinces total depravity and meanness. For
instance when (a) a hired assassin commits
murder for the sake of money or reward (b) a
cold-blooded murder is committed with a
deliberate design in order to inherit property or to
gain control over property of a ward or a person
under the control of the murderer or vis-`-vis
whom the murderer is in a dominating position or
in a position of trust, or (c) a murder is
committed in the course of betrayal of the
motherland.
III. Anti-social or socially abhorrent nature of
the crime
35. (a) When murder of a member of a Scheduled
Caste or minority community, etc. is committed
not for personal reasons but in circumstances
which arouse social wrath. For instance when
such a crime is committed in order to terrorise
such persons and frighten them into fleeing from
a place or in order to deprive them of, or make
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them surrender, lands or benefits conferred on
them with a view to reverse past injustices and in
order to restore the social balance.
(b) In cases of `bride burning’ and what are
known as `dowry deaths’ or when murder is
committed in order to remarry for the sake of
extracting dowry once again or to marry another
woman on account of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion.
For instance when multiple murders say of all or
almost all the members of a family or a large
number of persons of a particular caste,
community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent
child who could not have or has not provided
even an excuse, much less a provocation, for
murder (b) a helpless woman or a person
rendered helpless by old age or infirmity (c)
when the victim is a person vis-`-vis whom the
murderer is in a position of domination or trust
(d) when the victim is a public figure generally
loved and respected by the community for the
services rendered by him and the murder is
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committed for political or similar reasons other
than personal reasons.”
In this background, the guidelines indicated in
Bachan Singh‘s case (supra) have to be culled out
and applied to the facts of each individual case
where the question of imposing of death sentence
arises. The following propositions emerge from
Bachan Singh‘s case:
“(i) The extreme penalty of death need
not be inflicted except in gravest cases of
extreme culpability.
(ii) Before opting for the death penalty
the circumstances of the `offender’ also
require to be taken into consideration
along with the circumstances of the
`crime’.
(iii) Life imprisonment is the rule and
death sentence is an exception. In other
words death sentence must be imposed
only when life imprisonment appears to
be an altogether inadequate punishment
having regard to the relevant
circumstances of the crime, and
provided, and only provided, the option
to impose sentence of imprisonment for
life cannot be conscientiously exercised
having regard to the nature and
circumstances of the crime and all the
relevant circumstances.
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(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn
up and in doing so the mitigating
circumstances have to be accorded full
weightage and a just balance has to be
struck between the aggravating and the
mitigating circumstances before the
option is exercised.”
In order to apply these guidelines, inter alia, the
following questions may be asked and answered:
“(a) Is there something uncommon about
the crime which renders sentence of
imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime
such that there is no alternative but to
impose death sentence even after
according maximum weightage to the
mitigating circumstances which speak in
favour of the offender?
The principles laid down in Machhi Singh
(supra) offer an instructive formulation of the
circumstances that demand capital punishment.
While the protection of life remains the bedrock
of our legal order, the Apex Court opined that,
society may rightfully withdraw such protection
when a crime’s grotesque, diabolical, or cruel
nature shakes the collective conscience to its
core. The manner of commission, the underlying
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motive, the social abhorrence it evokes, the scale
of destruction, and the identity of the victim all
serve as immutable considerations, ensuring that
the penalty is neither routine nor indiscriminate
but applied with a scrutiny that befits its
irreversible gravity. This Court stands resolute
with the Honourable Supreme Court that the
death penalty is not a last resort option but also a
judicial imperative in cases where the crime’s
enormity obliterates all other lesser sanctions.
vi) The Apex Court in Haresh Mohandas Rajput v. State of
Maharashtra 48, while dealing with the situation where the accused
murdered a woman by stabbing her multiple times in a brutal
premeditated manner and if that warrants a death sentence. The Apex
Court upheld the death sentence, ruling that the death penalty is
permissible in exceptionally heinous crimes falling under the “rarest
of rare” category, with no mitigating circumstances referring to the
guidelines laid down in Bachan Singh46 and the principles outlined
in Machhi Singh47 and opined as follows:
“19. In Machhi Singh v. State of Punjab this
Court expanded the “rarest of rare” formulation
beyond the aggravating factors listed in Bachan
Singh to cases where the “collective conscience”
48
. AIR 2011 SC 3681
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of the community is so shocked that it will expect
the holders of the judicial power centre to inflict
the death penalty irrespective of their personal
opinion as regards desirability or otherwise of
retaining the death penalty, such a penalty can be
inflicted. But the Bench in this case underlined
that full weightage must be accorded to the
mitigating circumstances in a case and a just
balance had to be struck between the aggravating
and the mitigating circumstances.”
After so stating, the Court ruled thus:
“20. The rarest of the rare case” comes when a
convict would be a menace and threat to the
harmonious and peaceful coexistence of the
society. The crime may be heinous or brutal but
may not be in the category of “the rarest of the
rare case”. There must be no reason to believe
that the accused cannot be reformed or
rehabilitated and that he is likely to continue
criminal acts of violence as would constitute a
continuing threat to the society. The accused may
be a menace to the society and would continue to
be so, threatening its peaceful and harmonious
coexistence. The manner in which the crime is
committed must be such that it may result in
intense and extreme indignation of the
community and shock the collective conscience
of the society. Where an accused does not act on
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indulges himself in a deliberately planned crime
and [pic]meticulously executes it, the death
sentence may be the most appropriate punishment
for such a ghastly crime. The death sentence may
be warranted where the victims are innocent
children and helpless women. Thus, in case the
crime is committed in a most cruel and inhuman
manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where
his act affects the entire moral fibre of the society
e.g. crime committed for power or political
ambition or indulging in organised criminal
activities, death sentence should be awarded. (See
C. Muniappan v. State of T.N[172]., Dara Singh
v. Republic of India[173], Surendra Koli v. State
of U.P.[174], Mohd. Mannan[175] and Sudam v.
State of Maharashtra[176].)
21. Thus, it is evident that for awarding the death
sentence, there must be existence of aggravating
circumstances and the consequential absence of
mitigating circumstances. As to whether the
death sentence should be awarded, would depend
upon the factual scenario of the case in hand.”
vii) The factual matrix before us is stark, unyielding, and
demands our unflinching attention. The accused, propelled by a
calculated design to destabilize the social order, executed a
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meticulously planned attack upon a bustling urban locale, a place of
confluence for innocent civilians-men, women, and children
untainted by any conflict. This was no spontaneous outburst; it was a
cold-blooded conspiracy, marked by the deployment of sophisticated
explosives, synchronized detonations, and a strategic selection of
targets to maximize carnage and despair. The toll is staggering: lives
extinguished, families irreparably broken, and a pervasive sense of
insecurity etched into the national consciousness. The scale of
destruction, both immediate and enduring, elevates this offense
beyond conventional criminality, placing it in a realm where ordinary
punishment falters. With unassailable certainty we believe that such
an act of terror so deliberate, so devastating transcends the pale of
routine adjudication, compels the “rarest of rare” doctrine’s most
stringent and uncompromising application to restore justice’s
equilibrium.
viii) The gravity of this crime lies not merely in its physical
toll but in its audacious, unpardonable challenge to the sovereign
integrity of the State. It is an affront to the rule of law, a deliberate
endeavor to supplant order with chaos, and a direct assault on the
democratic values this Court is sworn to uphold with unrelenting
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vigor. In such circumstances, we are tasked with determining
whether any sanction short of death can restore the equilibrium of
justice, a question Apex Court has answered with resounding
affirmation in Mukesh v. State 49 wherein the accused gang-raped
and fatally injured a young woman in a bus in Delhi, succumbing to
her injuries shortly after she was abandoned. The Apex Court upheld
the death penalty, stating it is justified in cases of extreme depravity
and “Where a crime is committed with extreme brutality and the
collective conscience of the society is shocked, courts must award
death penalty, irrespective of their personal opinion as regards
desirability of death penalty. By not imposing a death sentence in
such cases, the Courts Yakub Abdul Razak Memon20. In may do
injustice to the society at large. In Yakub Abdul Razak Memon20,
wherein the accused was convicted for his role in planning the 1993
Mumbai bombings, which killed over 250 people and caused
widespread destruction. The Apex Court upheld the death penalty,
holding it appropriate for crimes threatening national security and
public order, especially those involving terrorism.
49
. (2017) 6 SCC 1
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ix) In Devender Pal Singh v. State of NCT of Delhi 50, the
Apex Court held that death sentence may be warranted when the
murder is committed in an extremely brutal manner; or for a motive
which evinces total depravity and meanness e.g. murder by hired
assassin for money or reward, or cold blooded murder for gains.
Death sentence may also be justified:
“(i) When the crime is enormous in proportion.
For instance, when multiple murders, say of all or
almost all the members of a family or a large number
of persons or a particular caste, community, or
locality are committed.
(ii) When the victim of murder is an innocent child or a
helpless woman or old or infirm person or a person vis-
`-vis, whom the murderer is in a dominating position,
or a public figure generally loved and respected by the
community.”
x) As discussed above, when terror bombings strike with
calculated ferocity at innocent civilians, the death penalty emerges as
the only sanction capable of matching the crime’s existential threat.
When an offence is not merely a crime against individuals but an
assault on civil order itself, the weight of justice must correspond
unflinchingly to the enormity of the transgression. This attack at
50
. AIR 2002 SC 1661
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Hyderabad, deliberately targeting civilians in busy streets with a
series of coordinated bombings, represents an act that transcends
ordinary criminality.
xi) In Mohd. Mannan @ Abdul Mannan v. State of
Bihar 51, wherein the accused was sentenced to death for kidnaping,
raping and killing a minor girl and causing disappearance of
evidence, distinguishing between ordinary murders and brutal
murders observed:
“23. It is trite that death sentence can be inflicted
only in a case which comes within the category
of the rarest of rare cases but there is no hard-
and-fast rule and parameter to decide this vexed
issue. This Court had the occasion to consider the
cases which can be termed as the rarest of rare
cases and although certain comprehensive
guidelines have been laid to adjudge this issue
but no hard-and-fast formula of universal
application has been laid down in this regard.
Crimes are committed in so different and distinct
circumstances that it is impossible to lay down
comprehensive guidelines to decide this issue.
Nevertheless it is widely accepted that in
deciding this question the number of persons
killed is not decisive.
51
. (2011) 5 SCC 317
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24. Further, the crime being brutal and heinous
itself does not turn the scale towards the death
sentence. When the crime is committed in an
extremely brutal, grotesque, diabolical, revolting
or dastardly manner so as to arouse intense and
extreme indignation of the community and when
collective conscience of the community is
petrified, one has to lean towards the death
sentence. But this is not the end. If these factors
are present the court has to see as to whether the
accused is a menace to the society and would
continue to be so, threatening its peaceful and
harmonious coexistence. The court has to further
enquire and believe that the accused condemned
cannot be reformed or rehabilitated and shall
continue with the criminal acts. In this way a
balance sheet is to be prepared while considering
the imposition of penalty of death of aggravating
and mitigating circumstances and a just balance
is to be struck. So long the death sentence is
provided in the statute and when collective
conscience of the community is petrified, it is
expected that the holders of judicial power do not
stammer dehors their personal opinion and inflict
death penalty. These are the broad guidelines
which this Court had laid down for imposition of
the death penalty”.
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xii) The destruction it wrought, the lives it claimed, and the
terror it instilled place it in a category beyond conventional crime,
necessitating an assessment under the strictest application of Bachan
Singh46 and Machhi Singh47. The attack was not an impulsive act
but the product of an extensive conspiracy, executed with precision
and supported by a network of external actors. Every stage, from
training to execution, was marked by calculated intent. The accused,
acting in concert with others, embarked upon a meticulously planned
operation designed to inflict maximum casualties. The strategic
selection of targets–densely populated areas ensuring the highest
number of deaths and injuries–underscores the deliberate nature of
the offence. Such cases demand an analysis not merely of individual
culpability but of the systemic and premeditated manner in which
terror was unleashed upon unsuspecting civilians. Such acts of terror,
aimed at annihilating the very foundations of societal stability,
necessitate death penalty as the sole bulwark of justice and order.
xiii) Applying the jurisprudence elucidated above, the crime’s
execution reveals a depravity that defies comprehension: explosives
strategically deployed to devastate an indiscriminate nature of the
killings. The motive–rooted in an organized effort to disrupt peace
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and tranquility of the state–reveals a level of depravity that places it
beyond the realm of offences where reform and rehabilitation remain
a relevant consideration. The victims, defenseless men, women, and
children, were chosen not for who they were as individuals but for
what they represented–a society targeted in its entirety. The motive,
to terrorize and dismantle societal order, aligns with Machhi
Singh’s47 first category of depraved intent, while its manner,
indiscriminate slaughter satisfies the second category of extreme
brutality. Its anti-social nature, a war against the State akin to Yakub
Memon20, fits the third category, and its magnitude lives lost and
enduring trauma–meets the fourth. The fifth category, victim
vulnerability, is evident in the targeting of innocents, echoing
Machhi Singh’s47 own inexorable reasoning. The confluence of
these factors obliterates all scope for leniency, rendering the death
penalty the only sanction capable of addressing this crime’s
unparalleled horror.
xiv) The “crime test” yields premeditation, barbarity, and
existential threat; the “criminal test” finds no mitigation. In the
framework set forth in Bachan Singh46, sentencing must be
conducted on a two-pronged basis:
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brutality, premeditation, impact on society, and potential for
deterrence.
• The Criminal Test – Assessing the personal circumstances of the
accused, such as age, reformability, and mitigating factors.
The crime test unveils a meticulously orchestrated assault on
humanity’s core, while the criminal test reveals no shred of
mitigation to temper justice’s demand–thus mandating the death
penalty as the inevitable culmination of this dual inquiry.
xv) A convict becomes a menace and a threat to the
harmonious and peaceful coexistence of society when his actions are
not the result of a momentary lapse but are premeditated,
meticulously executed, and demonstrative of extreme depravity. The
collective conscience, so palpably outraged, demands the ultimate
sanction–not as retribution, but as a necessary affirmation of justice.
Where the offence is committed with deliberate planning, with no
scope for repentance or reform, the referral court must necessarily
consider whether the death penalty is the only appropriate
punishment. The law does not mandate the imposition of capital
punishment in every case of murder, but where the crime is so brutal,
grotesque, diabolical, or revolting that it shocks the collective
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conscience of society, the imposition of the death penalty may
become imperative.
xvi) The philosophical moorings of capital punishment, as
expounded by Montesquieu in The Spirit of the Laws, resonate with
commanding force here: “The capital punishment represents a kind
of retaliation, by which society withdraws protection from a citizen
who has sought to destroy another citizen… The penalty thus
employed may be described as the medicine for a social malady.”
The accused, by their assault, have severed the societal compact.
Here, the accused, by their calculated assault on the innocent, have
severed the bonds of societal compact and it would be to undermine
the gravity of their offense and imperil the health of the body politic,
as the Machhi Singh47 and reaffirmed in Yakub Memon20.
xvii) The principle that death is an exceptional penalty applies
to offences that challenge the very fabric of law and governance.
Here, the carnage inflicted, the economic devastation caused, and the
sustained fear generated by the act render the alternative of life
imprisonment not only inadequate but incompatible with the
principles governing sentencing in the gravest cases. Whether a case
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falls within the “rarest of rare” category must be determined by a
careful analysis of its facts and circumstances. The court must take
into consideration both the aggravating and mitigating factors to
conclude whether there exists something so uncommon about the
crime that the sentence of life imprisonment would be grossly
inadequate. Where the crime is of such an egregious nature that it
shakes the foundations of the legal order and strikes at the very heart
of societal harmony, the only punishment that can meet the ends of
justice may be the death penalty.
xviii) In Shankar Kisanrao Khade v. State of
Maharashtra 52 wherein the victim was murdered by strangulation
after repeated rape and sodomisation of a 11 year old minor girl with
intellectual disability, the Apex Court surveyed a large number of
cases on either side, where death sentence was upheld/awarded or
where it was commuted; and pointed out the requirement of applying
‘crime test’, ‘criminal test’ and ‘rarest of rare test’. The Apex Court
while commuting the death sentence to life imprisonment recounted,
with reference to previous decisions, the aggravating circumstances
52
. (2013) 5 SCC 546
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(crime test) and the mitigating circumstances (criminal test). The
Apex Court held as under:
“52. Aggravating circumstances as pointed out
above, of course, are not exhaustive so also the
mitigating circumstances. In my considered view,
the tests that we have to apply, while awarding
death sentence are “crime test”, “criminal test” and
the “R-R test” and not the “balancing test”. To
award death sentence, the “crime test” has to be
fully satisfied, that is, 100% and “criminal test”
0%, that is, no mitigating circumstance favouring
the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the
crime, possibility of reformation, young age of the
accused, not a menace to the society, no previous
track record, etc. the “criminal test” may favour the
accused to avoid the capital punishment. Even if
both the tests are satisfied, that is, the aggravating
circumstances to the fullest extent and no
mitigating circumstances favouring the accused,
still we have to apply finally the rarest of the rare
case test (R-R test). R-R test depends upon the
perception of the society that is “society-centric”
and not “Judge-centric”, that is, whether the society
will approve the awarding of death sentence to
certain types of crimes or not. While applying that
test, the court has to look into variety of factors like
society’s abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual
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minor girls, suffering from physical disability , old
and infirm women with those disabilities, etc.
Examples are only illustrative and not exhaustive.
The courts award death sentence since situation
demands so, due to constitutional compulsion,
reflected by the will of the people and not the will
of the Judges. (emphasis and extra emphasis
supplied)”
xix) The evolution of sentencing jurisprudence has been
guided by a measured balance between the severity of the crime and
the proportionality of punishment, ensuring that judicial discretion
operates within principled boundaries. The ‘rarest of rare’ doctrine
stands as a testament to this balance, providing a structured yet
flexible standard that allows courts to weigh the enormity of an
offence against mitigating factors, if any. It is not merely a threshold
for determining eligibility for the death penalty but an examination
of the circumstances where justice, in its fullest sense, necessitates
the gravest sentence.
xx) The framework laid down in Machhi Singh47 serves as a
valuable lens through which the application of capital punishment is
assessed. The considerations enumerated therein–ranging from the
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manner of execution to the scale of impact–are neither rigid nor
exhaustive but rather indicative of the kind of offences that warrant
the ultimate penalty. Over time, these principles have not only
guided sentencing in individual cases but have reinforced the
consistency of judicial approach, ensuring that the gravity of a crime
is met with an equally reasoned response.
xxi) In adjudicating matters of such consequence, Courts have
consistently been called upon to recognize not just the individual act
but its wider implications. The doctrine does not exist in isolation but
operates within a broader legal framework that considers the
deterrent effect of sentencing, the interests of victims, and the
expectations of a society that entrusts the judicial system with the
responsibility of upholding justice. The sentencing process,
particularly in cases that involve large-scale devastation, necessarily
accounts for the enormity of loss and the lasting impact on public
consciousness. In matters of sentencing, the law mandates a
balancing of aggravating and mitigating circumstances. While every
murder is heinous, the degree of brutality, the depravity of mind, and
the diabolic nature of the crime differ from case to case. There can be
no straitjacket formula for the imposition of the death penalty; rather,
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each case must be assessed on its own merits. The background of the
criminal, his psychology, his social conditions, and the effect of
imposing an alternative punishment on society at large must be taken
into consideration. A crime committed due to a personal enmity or
mutual hostility may not warrant the extreme penalty of death.
However, an organised crime that is aimed at causing large-scale
destruction or mass murders of innocent people must necessarily be
viewed in a different light. Such crimes, by their very nature,
obliterate any scope for leniency and warrant highest imposition of
penalty as a necessary deterrent.
xxii) In Mahesh v. State of M.P 53, wherein the accused
committed 5 murders over caste communal dispute and the Apex
court deprecated the practice of taking a lenient view and not
imposing the appropriate punishment observing that it will be a
mockery of justice to permit the accused to escape the extreme
penalty of law when faced with such evidence and such cruel acts.
The court held that “To give a lesser punishment to the appellants
would be to render the justice system of this country suspect. The
common man will lose faith in the courts. In such cases, he
53
. AIR 1987 SC 1346
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understands and appreciates the language of deterrence more than the
reformative jargon”
xxiii) In Bantu v. State of U.P 54, the Apex Court while
confirming the death sentence of an accused raping and murdering a
six-year old girl, following its decision in Sevaka Perumal v. State
of T.N55, wherein four young boys were murdered and the accused
death sentence was confirmed, re-iterated the same view observing
as under:
“Therefore, undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public
confidence in the efficacy of law and society
could not long endure under such serious threats.
It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the
offence and the manner in which it was executed
or committed etc.”
xxiv) A three-Judge Bench in Swamy Shraddananda v.
State of Karnataka 56 wherein the appellant killed his wife, the apex
court while commuted the sentence, noted the new age crimes and by
elucidating:
54
. (2008) 11 SCC 113
55
. AIR 1991 SC 1463
56
. (2008) 13 SCC 767
305
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016“43. In Machhi Singh the Court crafted the
categories of murder in which `the Community’
should demand death sentence for the offender
with great care and thoughtfulness. But the
judgment in Machhi Singh was rendered on 20-7-
1983, nearly twenty-five years ago, that is to say
a full generation earlier. A careful reading of the
Machhi Singh categories will make it clear that
the classification was made looking at murder
mainly as an act of maladjusted individual
criminal(s). In 1983 the country was relatively
free from organised and professional crime.
Abduction for ransom and gang rape and murders
committed in the course of those offences were
yet to become a menace for the society
compelling the Legislature to create special slots
for those offences in the Penal Code. At the time
of Machhi Singh, Delhi had not witnessed the
infamous Sikh carnage. There was no attack on
the country’s Parliament. There were no bombs
planted by terrorists killing completely innocent
people, men, women and children in dozens with
sickening frequency. There were no private
armies. There were no mafia cornering huge
government contracts purely by muscle power.
There were no reports of killings of social
activists and ‘whistle blowers’. There were no
reports of custodial deaths and rape and fake
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encounters by police or even by armed forces.
These developments would unquestionably find a
more pronounced reflection in any classification
if one were to be made today. Relying upon the
observations in Bachan Singh, therefore, we
respectfully wish to say that even though the
categories framed in Machhi Singh provide very
useful guidelines, nonetheless those cannot be
taken as inflexible, absolute or immutable.
Further, even in those categories, there would be
scope for flexibility as observed in Bachan Singh
itself.”
xxv) The principle that life imprisonment is the rule and death
an exception finds its application where the alternative option is
unquestionably foreclosed. It is in such cases that judicial conscience
aligns with societal conscience, affirming that the law, while
protective of life, must also recognize when the deprivation of life is
the only appropriate response. This is not a departure from the
fundamental values that underpin the legal system but rather their
reaffirmation–an acknowledgment that the sanctity of life, while
inviolable in most circumstances, cannot extend protection to those
who have, by their own deliberate and calculated actions, annihilated
it on an unprecedented scale.
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xxvi) In Susheel Murmu v. State Jharkhand 57, kidnapped
and murdered a 9 year young boy as a ritual sacrifice. The Apex
Court upheld the death sentence, deeming the crime “rarest of rare”
due to its barbaric nature and lack of remorse. The Apex Court held
as under:
“In rarest of rare cases the collective conscience
of the society is so shocked that it will expect the
holders of the judicial power centre to inflict
death penalty irrespective of their personal
opinion as regards desirability or otherwise of
retaining death penalty, death sentence can be
awarded. The Apex Court considered the
circumstances that may entertain such sentiments
of the community including. (1) When the
murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme
indignation of the community. (2) When the
murder is committed for a motive which evinces
total depravity and meanness misusing the
position of trust etc.’xxvii) The nature of the offence, the meticulous planning, the
scale of casualties, and the complete absence of mitigating factors
leave no ambiguity in the application of this settled doctrine as is no
57
. (2004) SCC (Crl) 529
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016longer res integra. In such cases, sentencing is not a matter of judicial
inclination but the logical culmination of principles that have long
been established and consistently upheld. It is in these instances that
the judicial function extends beyond the mere adjudication of guilt
and assumes its full responsibility–to ensure that the gravity of a
crime is met with the weight of justice it demands. Terror bombings,
like the one before us, epitomize the “rarest of rare” paradigm, where
the death penalty stands as the sole instrument capable of redressing
such an unpardonable assault on humanity.
xxviii) In the current fact scenario, the “rarest of rare”
threshold is not merely crossed but obliterated. The balance of
aggravating and mitigating circumstances tilts favourably towards
the former, rendering life imprisonment as insufficient recompense
for a crime of such monstrous proportions. Drawing from all the
authorities mentioned supra, the death penalty emerges as the just
and proportionate response–a bulwark against terror and a testament
to the rule of law. When terror strikes the innocent with such
calculated savagery, the law shall rise with equal and unrelenting
force to protect justice’s sanctity and the nation’s soul.
309
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016xxix) The constitutional mandate to reserve the death penalty
for exceptional cases as affirmed in Bachan Singh46 has guided
through decades of jurisprudential evolution. Building upon this
foundation and the insights of Machhi Singh47, the introduction of
Doctrine of Systemic Enduring Harm (DSEH) emerges as a natural
extension of these principles. It offers a structured approach to
address crimes that strike at the core of societal stability–such as
orchestrated acts of terror–ensuring that the ultimate sanction aligns
with both justice and necessity. DSEH further refines the “rarest of
rare” doctrine, providing lucidity over such rare instances where the
fabric of collective existence is imperiled.
xxx) DSEH rests upon a precise, dual inquiry, structured as a
two-pronged test to guide the imposition of the death penalty with
exacting clarity. The first prong demands that the offense inflict a
deep and lasting wound upon society–manifested through
widespread disruption, economic ruin, or enduring collective
anguish–beyond the reach of ordinary remedies; it is a threshold
met only when the crime’s consequences so fundamentally impair
the social order that no measure short of the ultimate sanction
imperative to protect collective life, ensuring that the death penalty
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in acts of orchestrated terror. The second prong requires accused’s
pivotal involvement and demonstrated intent reveal a character
wholly incompatible with reformative justice; it insists upon
evidence-such as calculated premeditation or unyielding ideological
commitment-that the offender’s active role in the act and rejection of
societal norms preclude any hope of redemption. Together, these
criteria ensure a balanced focus on the magnitude of the crime and
the culpability of the offender, harmonizing with established
sentencing principles while addressing the unique nature of systemic
offenses with a disciplined and proportionate judicial response.
xxxi) Where the “rarest of rare” doctrine has long served as a
bulwark of proportionality, this new doctrine (DSEH) provides a
refined lens for crimes that transcend individual loss to threaten
societal survival. It directs judicial attention to the objective scale of
devastation and the offender’s irremediable agency, as seen in acts
like terror bombings that fracture national resilience. The
requirement of deep and lasting societal harm identifies those
offenses whose consequences echo beyond immediate victims, while
the focus on the offender’s pivotal involvement and intent isolates
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measures. This approach strengthens the existing framework,
ensuring that the death penalty is imposed only where both the
crime’s gravity and the offender’s disposition compel such a
response.
xxxii) In Ravindra Trimbak Chouthmal v. State of
Maharashtra58, is perhaps among the earliest cases where
consecutive sentences were awarded. This was not a case of rape and
murder but one of causing a dowry death of his pregnant wife. It was
held that it was not the “rarest of rare” cases “because dowry death
has ceased to belong to that species of killing”. The death sentence
was, therefore, not upheld. Since the accused had attempted to cause
disappearance of the evidence by severing the head and cutting the
body into nine pieces, this Court directed that he should undergo the
sentence for that crime after serving out his life sentence. It was held
as under:
“10. We have given considered thought to the
question and we have not been able to place the
case in that category which could be regarded as
the ‘rarest of the rare’ type. This is so because58
. (1996) 4 SCC 148
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of killing. The increasing number of dowry
deaths would bear this. To halt the rising graph,
we, at one point, thought to maintain the
sentence; but we entertain doubt about the
deterrent effect of a death penalty. We, therefore,
resist ourselves from upholding the death
sentence, much though we would have desired
annihilation of a despicable character like the
appellant before us. We, therefore, commute the
sentence of death to one of RI for life.
11. But then, it is a fit case, according to us,
where, for the offence under Sections 201/34, the
sentence awarded, which is RI for seven years
being the maximum for a case of the present type,
should be sustained, in view of what had been
done to cause disappearance of the evidence
relating to the commission of murder–the
atrocious way in which the head was severed and
the body was cut in nine pieces. These cry for
maximum sentence. Not only this, the sentence
has to run consecutively, and not concurrently, to
show our strong disapproval of the loathsome,
revolting and dreaded device adopted to cause
disappearance of the dead body. To these
sentences, we do not, however, desire to add
those awarded for offences under Sections 316
and 498-A/34, as killing of the child in the womb
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offence ceases to be of significance and
importance in view of the murder of Vijaya.
12. The result is that the appeal stands allowed to
the extent that the sentence of death is converted
to one of imprisonment for life. But then, the
sentence of seven years’ RI for the offence under
Sections 201/34 IPC would start running after the
life imprisonment has run its course as per law.”
(emphasis in original)
Since imprisonment for life means that the
convict will remain in jail till the end of his
normal life, what this decision mandates is that if
the convict is to be released earlier by the
competent authority for any reason, in
accordance with procedure established by law,
then the second sentence will commence
immediately thereafter.”
xxxiii) In Ronny v. State of Maharashtra 59 is also among
the earliest cases in the recent past where consecutive sentences were
awarded. The three accused, aged about 35 years (two of them) and
25/27 years had committed three murders and a gang rape. The Apex
Court converted the death sentence of all three to imprisonment for
life since it was not possible to identify whose case would fall in the
59
. (1998) 3 SCC 625
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category of the “rarest of rare” cases. However, after awarding a
sentence of life imprisonment, the Apex Court directed that they
would all undergo punishment for the offence punishable under
Section 376(2)(g) IPC consecutively, after serving the sentences for
other offences. It was held as under:
“47. Considering the cumulative effect of all the
factors, it cannot be said that the offences were
committed under the influence of extreme mental
or emotional disturbance for the whole thing was
done in a pre-planned way; having regard to the
nature of offences and circumstances in which
they were committed, it is not possible for the
Court to predict that the appellant would not
commit criminal act of violence or would not be
a threat to the society. A-1 is 35 years old, A-2 is
35 years old and A-3 is 25 (sic 27) years old. The
appellants cannot be said to be too young or too
old. The possibility of reform and rehabilitation,
however, cannot be ruled out. From the facts and
circumstances, it is not possible to predict as to
who among the three played which part. It may
be that the role of one has been more culpable in
degree than that of the others and vice versa.
Where in a case like this it is not possible to say
as to whose case falls within the ‘rarest of the
rare’ cases, it would serve the ends of justice if
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imprisonment. Accordingly, we modify the
sentence awarded by the courts below under
Section 302 read with Section 34 from death to
life imprisonment. The sentences for the offences
for which the appellants are convicted, except
under Section 376(2)(g) IPC, shall run
concurrently; they shall serve sentence under
Section 376(2)(g) IPC consecutively, after
serving sentence for the other offences.”
xxxiv) In Sandesh v. State of Maharashtra 60, the Apex
Court converted the death penalty awarded to the accused to
imprisonment for life, inter alia, for the rape of a pregnant lady,
attempted murder and the murder of her mother-in-law with a further
direction that all the sentences were to run concurrently.
xxxv) In Sanaullah Khan v. State of Bihar 61, the death
sentence awarded to the accused for the murder of three persons was
converted by this Court to imprisonment for life for each of the three
murders and further the sentences were directed to run concurrently.
93. In view of the aforesaid discussion and the principle laid
down by the Apex Court in rarest of rare cases, it can be held that the
60
. (2013) 2 SCC 479
61
. (2013) 3 SCC 52
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present case also falls under the category of ‘rarest of rare’ wherein
no lenient view shall be taken by the Court keeping in view the
modus operandi of the accused in commission of offences, wherein
18 deaths occurred and caused injuries to 131 people, whose families
suffered a lot of mental agony and financial loss and further
traumatized the entire State.
94. DOCTRINE OF RAREST OF RARE CASE AND
DEATH PENALTY:
i) As discussed above, in the present case, the trial Court
imposed death penalties on accused Nos.2 to 6. Pursuant to the
same, learned trial Court addressed a letter vide Dis.No.812 of 2016,
dated 19.12.2016 to this Court seeking confirmation of capital
punishment of death under Section – 366 of the Cr.P.C. Pursuant to
the said letter, this Court registered the same as Referred Trial (R.T.)
No.1 of 2016.
ii) Death Penalty is a means of retributive justice which says
to balance crime with punishment. Many uses to state that death
penalty will teach society the seriousness of crime, but by following
retribution principle, we cannot teach society to end violence by
violence it result more violence. The continuance of death penalty is
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principle of lex talionis and that a just punishment is one which
inflicts the same amount of pain to the offender as he caused to the
victim. The retentionists argue that since death penalty is prescribed
in those cases where the accused has caused the death of another
person, it is very much reasonable and justified that law takes the life
of the offender to give retribution to the family of the deceased.
However, the abolitionists expose the absurdity in this hypothesis by
arguing that modern punishment is not founded on the principle of
retribution because if this was the case then, no punishment can be
given to rapists, thieves and whole lot of other criminals. Instead,
they argue that reformation and rehabilitation is the primary purpose
of punishment, which is defeated if death penalty is awarded to an
offender. the use of the death penalty undermines human dignity, and
convinced that a moratorium on the use of the death penalty
contributes to the enhancement and progressive development of
human rights, that there is no conclusive evidence of the deterrent
value of the death penalty and that any miscarriage or failure of
justice in the implementation of the death penalty is irreversible and
irreparable.
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iii) The UN Special Rapporteur on extrajudicial, summary or
arbitrary executions has reported on the proper standards required by
international law in death penalty cases. Included in those
recommendations is the requirement that “all mitigating factors must
be taken into account which would appear to exclude the possibility
of sentence passed without consideration of the individual
circumstances of the defendant. The dignity of man, his sovereignty,
the sign that he accedes to universal right and rises above animality
is that he rises above biological life, puts his life in play in the law,
risks his life and thus affirms his sovereignty as subject or
consciousness. A law that would refrain from inscribing the death
penalty within it would not be a law; it would not be a human law, it
would not be a law worthy of human dignity.”
94.1 HISTORICAL BACKGROUND:
i) Capital punishment has a long history and has been present
in almost every country. In ancient Greece, it was used for various
crimes like murder, treason, arson, and rape under Draco’s laws in
the 7th Century BCE. However, the philosopher Plato argued for a
more selective application, advocating its use only for the most
serious cases. The Romans also employed the death penalty for a
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republic. Sir Henry Maine observed that while the Roman Republic
didn’t abolish the death penalty, its infrequent use was influenced by
other punishments like exile and specific procedural considerations.
This historical context emphasizes how capital punishment has
evolved over time, shaped by societal values, philosophical beliefs,
and legal frameworks. Understanding this history is crucial for
informed discussions about the death penalty’s morality and
effectiveness today”.
ii) The root of death penalty laws was traced as for back in
Babylon law. Hammurabi who was first metropolis, the king of
Babylon issued a set of law to his people called Hammurabi Code.
Babylon civilization started in XIX Century B.C. till VI Century
B.C. Hammurabi was the first written code. Hammurabi Code
provide harsh standard by which Babylon could order their lives and
treat one another. The establishment of death penalty was initiated
through Hammurabi Code of Babylon in 18th Century.” In
Hammurabi Code crime against high class people having a large
amount of money considered more serious then poor people.
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iii) The Indian courts have witnessed turbulence. Several
judgments of the Indian Supreme Court have expressed disquiet at
the unpredictable ways in which the rarest of the rare test laid down
in Bachan Singh46 has been applied. In Santosh Kumar
Satishbhushan Bariya v. State of Maharashtra 62, the Apex Court
held that “there is no uniformity of precedents, to say the least. In
most cases, the death penalty has been affirmed or refused to be
affirmed by us, without laying down any legal principle”. Indeed, as
the Law Commission of Indian pointed out, the Apex Court itself has
come to doubt the possibility of a principled and consistent
implementation of the “rarest of rare test”. This, in turn, led the
Commission to recommend that the death penalty be abolished for all
crimes other than terrorism related offences and waging war.
94.2. Learned counsel for the appellants placed reliance on the
principle laid down by the Apex Court in Navjot Sandhu34. The
said case is in relation to attack on Parliament, wherein the Trail
Court convicted the accused therein including Navjyot Singh and
others. Death penalty was awarded to the main accused including
Mohammad Afzal Guru. The Division Bench of the High Court
62
. 2009 INSC 808
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dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru
and confirmed the death sentence imposed on them. However, it
acquitted some of the accused including Afsan Guru (Navjot
Sandhu) due to lack of evidence against her. The Apex Court
confirmed the death sentence of Afzal Guru, but commuted the
death sentence of another accused to life imprisonment.
i) In Union of India v. V. Sriharan alias Murugan63, which
is a case of assassination of Former Prime Minister, Rajiv Gandhi.
In the said case, the trail Court awarded death sentence to seven
accused including V. Sriharan @ Murugan and life imprisonment
and varying punishments were awarded to others. The Madras High
Court upheld the convictions and death sentences. The Apex Court
commuted the death sentences of three main accused (Murugan,
Santhan, and Perarivalan) to life imprisonment due to inordinate
delay in deciding their mercy petitions. The Apex Court also
explained the scope of life imprisonment and held that life
imprisonment means imprisonment for the rest of the life of the
convict till his/her last breath.
63
. (2016) 7 SCC 1
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ii) In Adambhai Sulemanbhai Ajmeri8 relating to attack on
Akshardham Temple. In the said Court, the Special Court convicted
Adambhai Sulemanbhai Ajmeri and Abdul Kayum @ Muftisaab
Mohmedbhai and awarded them death penalty, and the same was
upheld by the High Court, whereas, the Apex Court acquitted all six
persons including the two on death row.
iii) In Yakub Abdul Razak Memon20 in relation to Bombay
Blast Case. In the said case, the Special Court for TADA, on
consideration of entire evidence, both oral and documentary, found
Yakub Memon guilty of criminal conspiracy and under various
Sections of TADA, IPC, ES Act and the Arms Act. He was
sentenced to death for his role in the conspiracy and for facilitating
acts of terrorism. The Bombay High Court held that since it was a
TADA case, it did not hear an appeal in the conventional sense and
that under TADA, appeals lie directly to the Hon’ble Supreme
Court. Thus, there was no High Court ruling in this matter. Further,
the Apex Court upheld the conviction of death penalty in respect of
Yakub.
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iv) In Mohd. Arif alias Ashfaq v. State (NCT of Delhi)64
relation to attack on the Red Fort, the trial Court convicted Arif and
imposed death sentence on him. The Delhi High Court upheld the
conviction and death sentence and the Apex Court also upheld the
conviction and the death penalty. The Apex Court held in
paragraph No.213 as under:
“213. This was, in our opinion, a unique case
where Red Fort, a place of paramount importance
for every Indian heart was attacked where three
Indian soldiers lost their lives. This is a place with
glorious history, a place of great honour for every
Indian, a place with which every Indian is attached
emotionally, and a place from where our first Prime
Minister delivered his speech on 15-8-1947, the day
when India broke the shackles of foreign rule and
became a free country. It has since then been a
tradition that every Hon’ble Prime Minister of this
country delivers an address to the nation on every
15th August to commemorate that great event. This
fort was visualised and constructed by the Mughal
Emperor Shahjahan who is known as “Shahjahan the
builder”. It took nine years for its completion. It was
here that Shahjahan ascended the throne on 18-4-
1648 amidst recitation of sacred aayates of Holy
Quran and mantras from Hindu scriptures. The great
historical monument thereafter saw the rule of64
. (2011) 13 SCC 621
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also saw its most unfortunate capture by Nadir Shah.
It was in 1837 that the last Mughal Emperor Bahadur
Shah Zafar II took over the throne.
214. It must be remembered that it was during the
empire of Bahadur Shah Zafar II that the First War of
Independence was fought. Red Fort became the
ultimate goal during that War of Independence which
broke out in the month of May 1857. The Fort
breathed free air for a brief period. But ultimately in
the month of September 1857, it was captured by the
British. Red Fort is not just one of the several
magnificent monuments that were built by the
Mughal emperors during their reign for nearly three
centuries. It is not just another place which people
from within and outside the country visit to have a
glimpse of the massive walls on which the Fort stands
or the exquisite workmanship it displays. It is not
simply a tourist destination in the capital that draws
thousands every year to peep and revel into the glory
of the times bygone. Its importance lies in the fact
that it has for centuries symbolised the seat of power
in this country. It has symbolised the supremacy of
the Mughal and the British empires just as it
symbolises after Independence the sovereignty of the
world’s largest democratic republic. It is a national
symbol that evokes the feelings of nationalism
amongst the countrymen and reminds them of the
sacrifices that the freedom fighters made for the
liberation of this country from foreign rule.
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215. No wonder even after the fall of the Fort to
the British forces in the First War of Independence in
1857 and the shifting of the seat of power from Red
Fort to Calcutta and later to New Delhi, Pt. Jawahar
Lal Nehru after his historic “Tryst with Destiny”
speech unfurled the tricolour from the ramparts of
Red Fort on 15-8-1947. That singular event
symbolised the end of the British rule in this country
and the birth of an independent India. An event that is
relived and re-acted every succeeding year since
1947, when every incumbent Prime Minister
addresses the nation from atop this great and historic
Fort reminding the countrymen of the importance of
freedom, the need for its preservation and the values
of constitutional democracy that guarantees the
freedoms so very fundamental to the preservation of
the unity and integrity of this country. An attack on
a symbol that is so deeply entrenched in the
national psyche was, therefore, nothing but an
attack on the very essence of the hard-earned
freedom and liberty so very dear to the people of
this country.
216. An attack on a symbol like Red Fort was
an assault on the nation’s will and resolve to
preserve its integrity and sovereignty at all costs.
It was a challenge not only to the army battalions
stationed inside the monument but the entire
nation. It was a challenge to the very fabric of a
secular constitutional democracy this country has
adopted and everything that is good and dear to
our countrymen. It was a blatant, brazenfaced and
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audacious act aimed to overawe the Government
of India. It was meant to show that the enemy
could with impunity reach and destroy the very
vitals of an institution so dear to our fellow
countrymen for what it signified for them. It is not
for no reason that whosoever comes to Delhi has a
yearning to visit Red Fort. It is for these reasons
that this place has become a place of honour for
Indians.
217. No one can ever forget the glorious moments
when the Indians irrespective of their religions fought
their First War of Independence and shed their blood.
It was, therefore, but natural for the foreigner enemies
to plan an attack on the army specially kept to guard
this great monument. This was not only an attack on
Red Fort or the army stationed therein, this was an
arrogant assault on the self-respect of this great
nation. It was a well thought out insult offered to
question the sovereignty of this great nation by
foreign nationals. Therefore, this case becomes a
rarest of the rare case. This was nothing but an
undeclared war by some foreign mercenaries like
the present appellant and his other partner in
conspiracy Abu Shamal and some others who
either got killed or escaped. In conspiring to bring
about such kind of attack and then carrying out
their nefarious activities in systematic manner to
make an attack possible was nothing but an
attempt to question the sovereignty of India.
Therefore, even without any reference to any
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other case law, we hold this case to be the rarest of
the rare case.
218. Similar sentiment was expressed by this
Court in State (NCT of Delhi) v. Navjot
Sandhu [(2005) 11 SCC 600 : 2005 SCC (Cri) 1715] .
The Court expressed its anguish in the following
words: (SCC pp. 759-60, para 252)
“252. In the instant case, there can be no doubt
that the most appropriate punishment is death
sentence. That is what has been awarded by the trial
court and the High Court. The present case, which
has no parallel in the history of Indian Republic,
presents us in crystal clear terms, a spectacle of the
rarest of rare cases. The very idea of attacking and
overpowering a sovereign democratic institution by
using powerful arms and explosives and imperilling
the safety of a multitude of peoples’ representatives,
constitutional functionaries and officials of the
Government of India and engaging in a combat with
the security forces is a terrorist act of the gravest
severity. It is a classic example of the rarest of rare
cases. This question of attack on the army and the
killing of three soldiers sent shock waves of
indignation throughout the country. We have no
doubt that the collective conscience of the society can
be satisfied by capital punishment alone.”
219. We agree with the sentiments expressed
in Navjot Sandhu case [(2005) 11 SCC 600 : 2005
SCC (Cri) 1715] : (SCC p. 760, para 253)
“253. … The challenge to the unity, integrity and
sovereignty of India by these acts of terrorists and
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conspirators, can only be compensated by giving
maximum punishment to the person who is proved to
be the conspirator in this treacherous act.”
220. A conspiracy to attack the Indian Army unit
stationed in Red Fort and the consequent unprovoked
attack cannot be described excepting as waging war
against India and there can be no question of
compromising on this issue. The trial court has relied
on a number of other cases including Navjot
Sandhu [(2005) 11 SCC 600 : 2005 SCC (Cri) 1715]
as also State v. Nalini [(1999) 5 SCC 253 : 1999 SCC
(Cri) 691] . We do not want to burden the judgment
by quoting from all these cases.
223. During the whole debate the learned
defence counsel did not attempt to bring any
mitigating circumstance. In fact, this is a unique
case where there is one most aggravating
circumstance that it was a direct attack on the
unity, integrity and sovereignty of India by
foreigners. Thus, it was an attack on Mother
India. This is apart from the fact that as many as
three persons had lost their lives. The conspirators
had no place in India. The appellant was a foreign
national and had entered India without any
authorisation or even justification. This is apart
from the fact that the appellant built up a
conspiracy by practising deceit and committing
various other offences in furtherance of the
conspiracy to wage war against India as also to
commit murders by launching an unprovoked
attack on the soldiers of the Indian Army. We,
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therefore, have no doubts that death sentence was
the only sentence in the peculiar circumstance of
this case.”
v) In Mohammed Ajmal Mohammad Amir Kasab alias
Abu Mujahid v. State of Maharashtra 65 in relation to attack in
Hotel Taj Mahal Palace, on consideration of organized crime,
offences, conspiracy and seriousness of offences and also on
consideration of evidence, both oral and documentary, the trial Court
awarded death sentence and the same was upheld by the Bombay
High Court as well as the Apex Court. The relevant paragraph
Nos.564 and 565 of the judgment are as follows:
“564. This case has the element of waging war
against the Government of India and the
magnitude of the war is of a degree as in no other
case. And the appellant is convicted on the charge,
among others, of waging war against the
Government of India.
565. This case has shocked the collective
conscience of the Indian people as few other cases
have.”
65
. (2012) 9 SCC 1
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vi) In Central Bureau of Investigation v. Sakru Mahagu
Binjewar66, the Apex Court laid down the circumstances under
which death penalty can be imposed. Paragraph No.20 of the said
judgment is relevant and the same is extracted as under:
“20. It needs no elaborate discussion that the
judicial discretion conferred upon a Court in the
matter of awarding sentence is an onerous duty
which has to be exercised keeping in view the
settled and binding dictates including the
Doctrine of Proportionality for assigning
justifiable reasons to award the death penalty and
also to keep in mind the Doctrine of Reform and
Rehabilitation. [Ref: Santosh Kumar
Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498]”.
vii) Learnd counsel for the appellants vehemently contended
that the trial Court cannot impose death penalties twice or thrice in
the manner stated above and the same amounts to double jeopardy.
In the light of the said submission, it is apt to note that ‘doubt
jeopardy’ ensures that an individual once acquitted or convicted,
cannot be tried again for the same offence as enshrined in Article –
66
. AIR 2019 SC 3550
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20 (2) of the Constitution of India and elaborated under Section – 300
of the Cr.P.C.
viii) In the present case, on consideration of the entire
evidence, both oral and documentary, learned trial Court recorded
conviction agianst the appellants for the aforesaid offences and
imposed sentences in themanner stated above including death
penalties. Normally, in criminal cases other than life and death
penalty cases, trial Court directs that sentences of imprisonment shall
run concurrently. But, in the present case, learned trial Court cannot
direct that death penalties shall run concurrently since death penalties
would be executed only once. The Apex Court considered the said
aspect in Muthuramalingam v. State 67 and held that life
imprisonments cannot be directed to run concurrently. Paragraph
No.31 is relevant and the same is extracted as under:
“31. In conclusion our answer to the question is in the
negative. We hold that while multiple sentences for
imprisonment for life can be awarded for multiple
murders or other offences punishable with imprisonment
for life, the life sentences so awarded cannot be directed
to run consecutively. Such sentences would, however, be
super imposed over each other so that any remission or
67
. (2016) 8 SCC 313
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does not ipso facto result in remission of the sentence
awarded to the prisoner for the other.”
95. MITIGATING CIRCUMSTANCES:
a) We have heard learned counsel for the appellants – accused
Nos.2 to 6 and learned Special Public Prosecutor for NIA at length in
R.T. No.1 of 2016 and Criminal Appeal No.1299 of 2016. During
the course of hearing, it was brought to the notice of this Court
regarding the appointment of a mitigator by the Hon’ble Supreme
Court in several Special Leave Petitions and by this Court in
Referred Trials and Criminal Appeals. However, Mr. R. Mahadevan,
Mr. Appam Chandra Sekhar, learned counsel appearing for accused
Nos.2 to 5 vehemently opposed for appointment of a mitigator.
b) After hearing both sides, vide orders dated 22.11.2023, this
Court appointed Ms. C.P. Shruthi as mitigator to assess the conduct
and behavior of accused Nos.2 to 5, who are in Central Prison, Tihar,
New Delhi, while Ms. Neha Kangralkar as mitigator to assess the
conduct and behavior of accused No.6, who is in Central Prison,
Cherlapally, Medchal – Malkajgiri District, Telangana State, and also
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directions:
i. The respondent-State shall place the reports of all the
Probation Officers relating to accused Nos.2 to 6 within
eight (8) weeks;
ii. The Superintendents of Central Jail, Tihar, New Delhi
and Cherlapally, Medchal – Malkajgiri District,
Telangana State, shall submit reportsconcerning the
nature of works which have been performed by accused
Nos.2 to 6 while in jail and reports with regard to their
conduct and behaviorwhile in jail within a period of
eight (8) weeks;
iii. The Superintendent/Professor of Psychiatry, The
Institute of Human Behavior and Allied Sciences
(IHBAS), formerly known as Hospital for Mental
Diseases, Shahdara, New Delhi, and The
Superintendent/Professor of Psychiatry, Institute of
Mental Health, Erragadda, Hyderabad, shall constitute a
suitable team to carry out a psychological evaluation of
accused Nos.2 to 5 and accused No.6, respectively. The
report of the evaluation shall be submitted to this Court
through the Public Prosecutor, High Court for the State
of Telangana, within a period of eight (8) weeks;
iv. Ms. C.P. Shruthi and Ms. Neha Kangralkar, who are
associated with Project 39A of the National Law
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University, Delhi, are permitted to have access to
accused Nos.2 to 5 and accused No.6, who are
presently lodged in Central Prisons of Tihar, New Delhi
and Cherlapally, Medchal – Malkajgiri District,
Telangana State,respectively, to conduct multiple in-
person interviews to collect information relevant to
sentencing and to submit Mitigation Investigation
Reports on behalf of the accused Nos.2 to 5 and accused
No.6 through their Advocates-on-Record within eight
(08) weeks;
v. The Superintendents of Central Prison of Tihar, New
Delhi and Cherlapally, Medchal – Malkajgiri District,
Telangana State, are directed,for the sake of
confidentiality, that these interviews shall be conducted
in a separate interviewing space in the presence of
any prison official or police staff being within
earshot distance, and audio recorders be permitted to be
used to record the interviews;
vi. The Superintendents of Central Prison, Tihar, New
Delhi, and Cherlapally, Medchal – Malkajgiri District,
Telangana State, are also directed that persons
nominated by Ms. C.P. Shruthi and Ms. Neha
Kangralkarare permitted to assist them in conducting the
aforesaid interviews including translations, if necessary,
on the request made by them;
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vii. Permissions are also granted to Ms. C.P. Shruthi and
Ms. Neha Kangralkar to obtain documents pertaining to
the accused persons including but not limited to medical
records, jail conduct, certificates of any educational,
vocational, or employment opportunities undertaken,
etc., that the accused persons may wish to submit for
sentencing information; and
viii. However, the Superintendents of Central Prison, Tihar,
New Delhi, and Cherlapally, Medchal – Malkajgiri,
Telangana State, shall provide necessary protection to
Ms. C.P. Shruthi and Ms. Neha Kangralkar, in
conducting the aforesaid interviews etc.;
ix. Both the Superintendents of Central Prisons, Tihar, New
Delhi, and Cherlapally, Medchal – Malkajgiri District,
Telangana State, shall video record the entire
proceedings; and
x. NIA shall pay an amount of Rs.50,000/- (Rupees Fifty
Thousand Only) each to the aforesaid mitigators.
Pursuant to the aforesaid directions, the aforesaid Mitigators filed
their respective reports in respect of accused Nos.2 to 6.
c) As discussed above, vide order dated 22.11.2023, this
Court appointed Ms. C.P. Shruthi and Ms. Neha Kangralkar, as
mitigators to assess the conduct and behavior of accused Nos.2 to 5
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and accused No.6, respectively and carry out their psychological
evaluations and file reports.
d) In compliance with the said order, Ms. C.P. Shruthi and
Ms. Neha Kangralkar, Mitigators, filed reports on 17.05.2024,
22.03.2024, 15.05.2024 and 22.03.2024 in respect of accused Nos.2
to 6, respectively. In the said reports, they have specifically
mentioned about the objective statement, purpose of report,
methodology, limitations, summary, life in prison, psychological
distress including solitary confinement, continued ties with family,
coping on death row, etc., and ultimately gave their conclusions and
recommendations.
i) With regard to accused No.2, the mitigator’s conclusion and
recommendations are as follows:
“XII. Conclusion and recommendations:
48. Towards the end of the mitigation interviews, I
asked Asad what were his hopes about his future and he
responded by saying that he feared going out and living
outside. He does not think he can live a normal life
outside because of his experiences in prison. He said
“म�अपनेफॅिमलीकोभीयहीबोलनाचाहता�ँ कीकेसकोछोड़द� ।जोहोताहै होनेद�।बसफॅिमलीकीवजहसेहम�के�एह� नहींतोम��ादास
मय�कनहीपाउँ गा।म�नही�ादारहपाउँ गायहाँ तोम�चा�ं गाकीफाँ
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case. Whatever happens, let it happen. I am waiting
because of my family, otherwise I do not think I can wait
too long. I cannot stay here for too long so 1 would want
to be hanged.”) Research suggests that such thoughts and
ideas of suicidality or passive suicide are indicative of the
conditions of the death row that create an ecosystem that
isa constant reminder of impending and uncertain death.
(Toch et al., 2018). A research study conducted by Project
39A, National Law University titled ‘Deathworthy: A
Mental Health Perspective of the Death Penalty notes
that, “while few death row prisoners spoke about wanting
to die when they got the death sentence, it was life under
the sentence of death that to many more was painful and
dark”. The current state Asad is in is reflective of the
extreme distress that he has been experiencing in prison.
49. Since his arrest and incarceration, Asad has had
recurrent episodes of what appears to be sleep paralysis. It
causes him so much distress and anxiety that he fears
falling asleep. He described these episodes as his soul
leaving his body and him having to put a lot of effort into
bringing it back with force. These episodes are usually
accompanied by intense fear where he almost chokes. He
has also been experiencing anxiety, sleeplessness,
palpitations, and distress for the past 11 years of his
incarceration. The two head injuries that he suffered in
prison in 2017 and 2019 haveonly magnified his condition
further. He has had persistent headaches, and issues with
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concentration, focus, and memory. He struggles to make
sense of time and space at times and feels like the entire
year after his head injury has been a blur and finds it hard
to recall the details of what that year was like. He has also
had trouble with exposure to light and sound since his
headache and also struggles to comprehend conversations
sometimes. He has also become slow, “हाँ,
येलगताहैक�पहलेक�तरहनह��ँ।अबथोड़ा�दमाग slow होगयाहै।”
(“Yes, 1 feel like I am not what I used to be. Now my brain
has become slower.”) These experiences seem to have
brought about a change in Asad’s personality, though he
tries to hide those changes from his mother.
50. The signs and symptoms that Asad is exhibiting
may be indicative of a Traumatic Brain Injury. The events
and incidents in jail that have contributed to these
symptoms seem to have had a compounding effect on him
and have magnified his vulnerabilities. While Asad may
seem completely functional at first instance, it is only
through sustained conversations over a period of time and
rapport building that his distress becomes evident. Other
than his co prisoners and the strong ties he has with his
family, there is very little support that he has to cope with
his experiences. His experience of pain and agony
manifesting in his symptoms makes the sentence
disproportionate, as it does not account for this additional
suffering, even if it is unintended. Continuing to keep
Asad on death row will only inflict further harm on him
and the punishment may need to be adjusted in order to
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avoid an unduly differential impact on him. It is
recommended that there be a deeper inquiry into his
psychological symptoms that have stemmed from the
head injuries and also what could possibly be an anxiety
disorder and sleep disturbance. Appropriate care and
treatment should be provided to Asad so as to reduce any
further psychological harm. Additionally, the mitigation
circumstance in this case including Asad’s young age,
early family background indicative of strong community
ties, illegal solitary confinement, psychological ailments
in prison, continued family ties and satisfactory conduct
in jail indicate that life imprisonment is not
‘unquestionably foreclosed in this case.”
ii) With regard to accused No.3, mitigator’s conclusions are as
follows:
“XI. Conclusion:
51.Zia was arrested and sentenced to death at the age of
26. Не had barely begun to come to terms with his arrest
when he was lodged in solitary confinement where he
spent 24 hours of his day in a cell behind iron doors, with
reduced external environmental stimuli, lack of sustained
contact with his family, and minimal human interaction.
He was denied access to the most basic facilities like the
stipulated amount of exposure to full sunlight, phone calls
to his family, access to recreational facilities, access to the
library, and other prison activities.
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52. Not only was Zia deprived of opportunities for growth
and engagement, he was instead exposed to such inhuman
conditions of incarceration from a young age that has had
a detrimental impact on Zia’s psyche. He experiences
memory lapses, disturbances in his sleep and appetite,
hyperresponsivity to light and sound, hallucination like
experiences and paranoia which have impacted his
cognition and thinking and also impaired his functioning
to a certain extent. He has also been suffering multiple
physical health ailments in the last few years including
diminishing vision, bilateral knee pain and allergic
rhinitis. His medical documents from the jail indicate that
he has had a number of tests and surgery done for his
issues with the vision and he spoke about continuing to
see spots in his vision. This has impacted his everyday life
to a great extent. He spoke of not being able to
differentiate between colours in the dark.
53. Zia feels completely hopeless about his life in prison,
the case and what the future holds for him. This was quite
evident during the interview where he repeatedly said
“आपनेिबखेर�दयासबकु छ” ( you have scattered all the
memories that I had been suppressing) during the
interviews. It was clear that speaking about the past and
especially his family had been traumatic for him. All these
years in prison he has been coping with it by forgetting
memories of his family or not engaging with those
memories that otherwise provided him support and joy.
He copes with these experiences by suppressing his
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thoughts and feelings and becomes quiet when any
attempt is made to unravel it. The fact that he had trouble
sleeping shows that despite his best efforts he has not
been able to detach himself and in fact it is clear that he is
so fragile that even the slightest reminder causes him a lot
of distress. He has tried to cope with his deteriorating
mental health by using the very few tools available to
him, including his faith.
54. The constant exposure to stressors that have been
adding up since his incarceration has now reached a point
where it is hard to differentiate what Zia has been feeling
and what he has become. He seems sad, resigned and
hopeless and it was hard to say if he had become like this
as a result of his experiences in prison if it was his
personality. His experiences and research indicate the
possibility of Zia experiencing trauma. Solitary
confinement, violence are considered traumatic or
potentially traumatic events and there is a significant
positive correlation between solitary confinement and
Post Traumatic Stress Disorder (PTSD) given the serious
environmental, physical and psychological deprivation
that it causes. (Haney, 2018) Many of the responses and
symptoms suffered by those who have spent time in
solitary are similar to the reactions and symptoms
exhibited by torture and trauma victims, including post-
traumatic stress disorder (PTSD). (Piper & Berle, 2019)
(Haney, 2018). Some of the experiences Zia describes
such as memory gaps, episodes where he is seeing his
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mother, suppression of emotions could also be indicative
of Complex PTSD (C-PTSD) particularly given the
prolonged, uncertain and repeated nature of trauma that he
has been exposed to and it needs to be enquired further.
Zia requires psychological help, including counselling, so
that he can regain a sense of self and self-worth for a
meaningful life. Continuing imposition of the death
sentence is likely to further the psychological harm that he
is currently experiencing.”
iii) With regard to accused No.4, mitigator’s conclusions are
as follows:
“J.Conclusion:
69. Tahseen’s young age, taken along with his life history,
underscores a genuine probability of reformation (Bachan
Singh) His life before incarceration indicates that he has
had strong ties in the community and positive role models
growing up as a result of which he has inculcated pro
social traits. Mofil Khan & Anr. v. State of Jharkhand
(2021) 20 SCC 162 (Paragraph 17) He grew up as a
caring and responsible individual. Lehna v. State of
Haryana, (2002) 3 SCC 76 (Paragraph 20). He had a
flourishing life but has now been reduced to a shadow of
his former self because of the extreme harsh conditions in
which he has spent the last many years. Tahseen has also
had to endure colossal psychological trauma by having to
bear harsh and dehumanising conditions during his
prolonged solitary confinement. Though Tahseen, like
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alienated conditions, also suffered immense despair and
psychological harm, he managed to also develop insight
into his problem and was solution oriented in his
approach.
70. Despite not having access to any formal reformatory
activities in prison, he is making an attempt to adjust to
his circumstances in prison and is working towards
making it better for himself and those around him by
helping draft applications and writs. He has also reflected
on his time in prison and consciously tried to change the
way in which he responds to distressing situations.
Tahseen is currently only 33 years old and has his entire
life ahead of him. His previous educational background,
knowledge that he has acquired in prison and his solution-
oriented approach can be put to use if his death sentence
is commuted. Being off the death sentence will ensure that
he has a reasonable chance of growth by meaningfully
engaging in prison reformatory activities and work in
prison, all of which has been denied to him in the past 10
years.
71. All of the above, i.. e, Tahseen’s young age at the
time of his arrest, education, continued ties and
involvement with the family, attempts to help others, his
ability to continue working on himself amply illustrate
that if convicted, Tahseen should not be condemned to
death. Instead, he should be given a meaningful chance to
engage in educational and vocational opportunities not
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only to act on his potential for reform but also to reduce
his psychological suffering. The alternative of life
imprisonment is not unquestionably foreclosed for
Tahseen.”
iv) With regard to accused No.5, the mitigator’s conclusions
are as follows:
“X.Conclusion:
43. The mitigation investigation in this case is still in its
early stages and is yet to uncover the psychological
impact of incarceration and solitary on Ahmed. However,
the defense team has uncovered an enormous amount of
information about the unusual experiences and
perceptions that Ahmed has been experiencing including
paranoia like thoughts, hallucination like experiences that
have impacted all his senses (visual, auditory, olfactory,
tactile), insomnia, weakness, haziness in vision, impact of
lack of human interaction etc. Ahmed is currently 41
years old and has been on death row for 11 years. He has
already suffered 1717 days of intense solitary
confinement (illegal). Ahmed was lodged in solitary
confinement where he spent 24 hours of his day in a cell
behind iron doors, with reduced external environmental
stimuli, lack of human interaction which have impacted
his psychological health severely. He was denied access
to the most basic facilities like stipulated amount of
exposure to full sunlight, phone calls to his family, access
to recreational facilities, access to library and other prison
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had a detrimental impact on Ahmed’s psyche. While
Ahmed articulates some of these symptoms as his
conscious efforts to cope in solitary, it seems like this is
his way of rationalising what he has been experiencing.
The way Ahmed interprets and makes sense of these
experiences need to be explored further. Many of these
symptoms align with the detrimental impact of solitary
confinement documented in research and empirical
studies. Due to paucity of time, a detailed and
comprehensive psychological examination to understand
Ahmed’s condition better could not be done. If Ahmed is
continued to be kept in solitary for prolonged periods, he
is likely to slip into further psychological harm and
distress. A deeper probe into his psychological history and
current state is required to prevent any further suffering
and harm.
44. Despite the suffering Ahmed has been put through, he
remains calm and has been finding ways to cope with the
isolation and psychological impact of solitary in a way
that is not harmful to others. In the absence of a nominal
roll, I received an email from jail no. 2 noting Ahmed’s
conduct to be satisfactory in the past year. [Annexure 5,
pg 34 [He tries to keep himself engaged by tending to
plants in his block, reading books whenever he is able to
get access to them and being a pillar of strength for his
family and his wife, Zahida. Despite having been away
from them for decades, Ahmed continues to be a strong
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source of emotional support for them. The Hon’ble court
is requested to take into account Ahmed’s current
psychological state and his life history while considering
an appropriate punishment for him.”
v) With regard to accused No.6, mitigator’s conclusions are as
follows:
“IX. Conclusion:
53. The comprehensive mitigation exercise
conducted with Ajaz and his family members revealed
circumstances and life experiences that had not been
presented to the lower court previously. The extensive and
in-depth interviews with Ajaz for approximately 40 hours
bring forth his life in incarceration and experience in
solitary, his strong continuing ties with his family and his
personality which depicts his abilities to empathise and
reintegrate in the society. In Santosh Kumar Satish
Bhushan Bariyar v State of Maharashtra (2009) 6
SCC 498 (para 66), the Hon’ble Court stated that life
imprisonment is unquestionably foreclosed only when
court has provided clear evidence as to why a convict is
not fit for any kind of reformation or rehabilitation
(Bariyar, para 66). The Court further stated that the courts
should thoroughly assess both aggravating and mitigating
factors, considering both the offence and the offender,
regardless of the seriousness or type of crime being
examined (Bariyar, para 72). Ajaz was arrested at the age
of 28. After spending a decade in prison, Ajaz has evolved
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with daily tasks and legal matters. During his prison term,
Ajaz has displayed behaviours that speak about his
abilities to reintegrate and contribute to the well being of
his family and the society. He aimed to enrol in law
programs and other courses multiple times but could not
due to various limitations in prison. His motivation to
pursue legal education stems from a desire to take
responsibility for his family upon release and to help
those in need. The Hon’ble Court in Dnyaneshwar
Suresh Borkar v. State of Maharashtra (2019) 15
Supreme Court Cases 546 (Dnyaneshwar. para 4) and
Mahesh Dhanaji Shinde v. The State of Maharashtra
(Mahesh. para 29) highlighted factors such as the
appellant’s young age, positive conduct while
incarcerated, and dedication to self-improvement through
education as indicators of their potential to reform and
live a meaningful life, if given a second chance.
54. In Rajendra Pralhadrao Wasnik v State of
Maharashtra (2019) 12 SCC 460 the Hon’ble Court
stated that factors like behaviour and conduct in jail,
conduct on bail, medical evidence of psychological
makeup, and family interactions can be used as indicative
of a person’s probability of reformation and reintegration
(Wasnik, para 45) As per the jail report, Ajaz’s conduct
has been certified satisfactory [Annexure A-9, Pg. 81] and
his psychological makeup consists of constantly pushing
himself to see the brighter side of things in the face of
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strong emotional ties with his family. The family has been
maintaining contact with Ajaz via phone calls and tries to
visit Ajaz regularly. Due to their current financial
situation, they are able to visit him once every six months.
The pain of not knowing Ajaz’s fate is unbearable for the
family. They long to hold him, to comfort him, but they
feel helpless. After Ajaz’s arrest, his older brother Imtiaz,
decided to study law and understand its intricacies to help
his brother’s case. All these factors are evidence of Ajaz’s
continued emotional ties with his family and his ability to
have long standing interpersonal ties.
55. In Channulal Verma v. State of Chhattisgarh
(2019) 12 SCC 438 emphasised on the importance of
appellant’s efforts in not submitting to feelings of
hopelessness and conscious efforts to lead a good life in
prison as an indication of reformation (Channulal, Para
15). Ajaz lives by principle that forbids him from
submitting to feelings of hopelessness, Despite facing
moments of monotony and helplessness during his time in
prison, he has faith in the judiciary and tries to cope with
these emotions by maintaining discipline in his life and by
preparing himself to be a better son, brother and a father
after his release. In the case of Vinter and ors v. The
United Kingdom recognised ‘hope’ as an important and
constitutive element of a human person. It further stated
that even those who commit the most heinous crimes, still
possess their intrinsic humanity, and have the potential for
change and rehabilitation within them.
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56. The Hon’ble Supreme Court in Sunil Batra v. Delhi
Administration and ors (1978) 4 SCC 494 (Sunil Batra,
para 107) criticised solitary confinement: (a) seclusion of
the prisoner (b) from the sight of other prisoners, and (c)
from communication with other prisoners while being in
full view as unconstitutional. Ajaz has spent a total of 348
days in solitary confinement till date. During this period
there were no inmates in sight, and there were no inmates
in his adjacent cells, either. Some sunlight could come
through the cell gate, but it was not sufficient, and it was
not possible to see without the help of tube light in the
room. The tube lights were switched on for 24*7. The
only few colours in the surrounding were shades of grey,
light orange-coloured floor, blackish-coloured grills, and
blue shades of sky.
57. As per the mandate set out by the Hon’ble Court in
Manoj and others vs. State of Madhya Pradesh 2023 2
SCC 353 (para 228, Manoj), the consideration of various
factors such as age of the accused, early and current
family background, education, employment, and
probability of the accused to reform and rehabilitate,
psychological make up are important before imposing the
death penalty is crucial. Further, the Hon’ble Supreme
Court has also given importance to the personality of the
accused in Lehna v. State of Haryana (2002) 3 SCC 76
(para 14), when deciding whether the death sentence is
the only appropriate punishment in a case. Ajaz was
merely 28 years old when he was arrested. Today in 2024,
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Ajaz has spent around 10 years in prison and 8 of those on
death row. The mitigation report narrates how Ajaz has
had a regular peaceful middle class upbringing and took
on the responsibility of his education and employment.
Ajaz has evolved into an empathetic person and his
experiences in prison have taught him to look beyond his
own needs and help those in need around him in prison.
Ajaz continues to remain hopeful, despite the conditions
of his incarceration, and has made efforts to enroll in
educational programs. There is nothing to indicate that if
convicted Ajaz can be said to be “extremely culpable” and
that the alternative of life imprisonment is
“unquestionably foreclosed”.
e) Both Mr. R. Mahadevan, learned counsel for accused Nos.2
and 5 and Mr. Appam Chandra Sekhar, learned counsel for accused
Nos.3 and 4, vehemently opposed for appointment of mitigators
while hearing the appeal. According to them, this Court has to
appoint mitigators to assess the psychological and other conditions of
accused only on confirming the death penalty imposed by the learned
trial Court. While hearing appeal, without coming to a conclusion as
to whether the appeal has to be allowed or dismissed and to confirm
death penalty or not, this Court cannot appoint mitigators to assess
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the psychological and other conditions of accused. It will create fear
in the minds of the accused.
f) But, on consideration of the said submissions and also the
principle/guidelines laid down by the Apex Court in Manoj v. State
of Madhya Pradesh68, this Court appointed the aforesaid two (02)
mitigators. In the said judgment, the Apex Court categorically held
that mitigators can be appointed at any stage. Therefore, the
contention raised by learned counsel for accused Nos.2 & 5 and 3 &
4 with regard to appointment of mitigators while hearing appeal
cannot be permissible is unsustainable.
g) Keeping in view the gravity of offences committed by the
accused, the mitigating circumstances in the present case are not
significant enough warranting the remission of the sentences of the
accused.
96. CONCLUSION:
i) We also found that apart from the reasons given in the
impugned judgment, the learned trial Court has taken into
consideration all the relevant facts and circumstances and chosen to
award death penalty, life imprisonment and other sentences as
68
. (2023) 2 SCC 353
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016mentioned in the above against the appellants herein. This Court has
also independently considered the submissions made on behalf of the
appellants and also perused the testimonies of the concerned
witnesses. We find that the learned trial Court has properly
appreciated the testimonies of witnesses and has recorded sound and
tenable reasons for awarding the aforesaid sentences against the
appellants herein. In our considered opinion, the discretion exercised
by the learned trial Court in awarding sentence of imprisonments
cannot said to be arbitrary or unreasonable.
ii) We have given a liberal and expansive scope to the
mitigating circumstances. We have also meticulously considered the
reports of the State as regards the psychological and Psychiatrist
evaluation. The report of the Probationary Officer, the report of the
concerned persons and having taken a holistic view of all the
aggravating and mitigating circumstances as well as the probability
of reformation of the convict, we are of the considered view that this
is a fit case to confirm the death penalty awarded by the trial Court.
iii) Section – 366 of Cr.P.C. deals with submission of Death
Sentences for confirmiation. As discussed above, learned trial Court
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016addressed a letter vide Dis.No.812 of 2016, dated 19.12.2016 to this
Court seeking confirmation of capital punishment of death under
Section – 366 of the Cr.P.C. Pursuant to the said letter, this Court
registered the same as Referred Trial (R.T.) No.1 of 2016.
iv) In Kunal Majumdar v. State of Rajasthan69, the Apex
Court held as under:
“15. In a case for consideration for confirmation
of death sentence under Section 366 (1) Cr.P.C.,
the High Court is bound to examine the
Reference with particular reference to the
provisions contained in Sections
367 to 371 Cr.P.C. Under Section 367, Cr.P.C.,
when Reference is submitted before the High
Court, the High Court, if satisfied that a further
enquiry should be made or additional evidence
should be taken upon, any point bearing upon the
guilt or innocence of the convict person, it can
make such enquiry or take such evidence itself or
direct it to be made or taken by the Court of
Sessions. The ancillary powers as regards the
presence of the accused in such circumstances
have been provided under sub-Clauses (2) and (3)
of Section 367, Cr.P.C. Under Section 368, while
dealing with the Reference under Section 366, it69
. (2012) 8 SCR 706
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016inter alia provides for confirmation of the
sentence or pass any other sentence warranted by
law or may annul the conviction itself and in its
place convict the accused for any other offence of
which the Court of Sessions might have
convicted the accused or order for a new trial on
the same or an amended charge. It may also
acquit the accused person. Under Section 370,
when such Reference is heard by Bench of
Judges and if they are divided in their opinion,
the case should be decided in the manner
provided under Section 392 as per which the case
should be laid before another Judge of that Court
who should deliver his opinion and the judgment
or order should follow that opinion. Here again,
under the proviso to Section 392, it is stipulated
that if one of the Judges constituting the Bench or
where the appeal is laid before another Judge,
either of them, if so required, direct for rehearing
of the appeal for a decision to be rendered by a
larger Bench of Judges.
17. We are, however, duty bound to state and
record that in a Reference made under Section
366 (1) Cr.P.C., there is no question of the High
Court short-circuiting the process of Reference
by merely relying upon any concession made by
the counsel for the convict or that of counsel for
the State. A duty is cast upon the High Court to
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016examine the nature and the manner in which the
offence was committed, the mens rea if any, of
the culprit, the plight of the victim as noted by
the trial Court, the diabolic manner in which the
offence was alleged to have been performed, the
ill-effects it had on the victim as well as the
society at large, the mindset of the culprit vis-à-
vis the public interest, the conduct of the convict
immediately after the commission of the offence
and thereafter, the past history of the culprit, the
magnitude of the crime and also the
consequences it had on the dependants or the
custodians of the victim. There should be very
wide range of consideration to be made by the
High Court dealing with the Reference in order to
ensure that the ultimate outcome of the Reference
would instill confidence in the minds of peace
loving citizens and also achieve the object of
acting as a deterrent for others from indulging in
such crimes.”
v) A corollary of the entire discussion made herein above is
that there is absolutely no chance of reformation or rehabilitation of
the convict. Life imprisonment would be completely futile since the
sentencing aim of reformation is completely unachievable. Having
given due consideration to all the aggravating and mitigating
circumstances, we are of the firm view that this is a fit case wherein
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the death penalty awarded by the learned Sessions Court needs to be
confirmed.
vi) The appellants failed to make out any case warranting
interference by this Court to set aside the impugned judgment. The
present Criminal Appeal filed by the appellants fails and the same is
liable to be dismissed.
vii) We, accordingly, confirm the sentence of the death,
awarded by the learned trial Court to the appellants – accused Nos.2
to 6 – convicts.
viii) A certified copy of the judgment shall immediately be
given to the convicts, free of cost, in view of the proviso to Sub-
Section (2) of Section – 363 of the Cr.P.C.
ix) The convicts are informed about their right to prefer an
appeal before the Hon’ble Supreme Court within thirty (30) days.
97. RESULT:
i) The Criminal Appeal is accordingly dismissed confirming
the judgment dated 13.12.2016 in Special Sessions Case No.01 of
2015, passed by learned trial Judge for the trial of Scheduled
Offences Investigated by National Investigation Agency – cum – V
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Crl.A. No.1299 of 2016 along with RT No.1 of 2016Additional Metropolitan and Sessions Judge, Rangareddy District at
L.B. Nagar, Telangana State.
ii) Reference is answered accordingly confirming the death
penalty imposed on accused Nos.2 to 6 by learned trial Court vide
judgment dated 13.12.2016 in Special S.C. No.1 of 2015.
As a sequel thereto, miscellaneous applications, if any,
pending in the Criminal Appeal, stand closed.
_________________
K. LAKSHMAN, J
_________________
P. SREE SUDHA, J
8th April, 2025
Mgr
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