The prosecution case regarding arrest of these two accused was sought to be established by PW16 Insp.Rajender Gautam who deposed that on 14/6/1996 he along with Insp.Paras Nath, (PW-101) Insp.Suresh Chander, SI Surender Verma etc. joined the investigation of the case.At about 6:20 PM PW-101 got secret information that A3 along with his companion, a Kashmiri youth would be going to Gorakpur in Vaishali express.He organized a team and they all reached New Delhi Railway station.ACP PP Death Sent.2/10; Crl.A.948 to 951/10 Page 134 Singh also joined the police party at New Delhi Railway Station.They all reached Platform no. 4 of New Delhi Railway Station and held a 'nakabandi'.At about 7.30 PM at the pointing out of the informer, A3 and A 4 were apprehended; both were interrogated by Insp.Paras Nath and were arrested.Their personal search memos Ex. PW16/A and 16/B were prepared.The witness was declared hostile, because he did not testify about many particulars.In the cross examination by the prosecution, he said that he had witnessed the arrest of A-6 and A-7 and witnessed the personal search memos (in relation to them) Ex. PW-16/D and PW-16-E; he also claimed - in cross examination by prosecution - to have witnessed the recovery of a Re. 2/- note (seized by Memo Ex. PW-16/F).Similarly, he agreed to the prosecutions suggestion about having witnessed the disclosure statements of A-5 Latif (Ex. PW-16/H) and A-6 Killey (Ex. PW-16/I).He stated further that A-9 Javed and A-6 were arrested in his presence.He agreed with the suggestion that Latif and Killey were arrested in his presence, given by the prosecution.However, he also stated that due to passage of time, he could not identify Killey and Latif.He admitted in prosecutions cross examination that Mirza Hussain had made disclosure statement Ex. PW-16/J, and pointed out Shop No. 3/32 at Bhogal, through memo Ex. PW-16/K, and Killey pointed out to Shop No. C-1/59, Lajpat Nagar (Ex PW-16/B).The witness was cross examined about where the police party was present before moving to New Delhi Railway station, whether other passengers and members of the public were present on the railway platform, whether the entire paperwork was done on the railway station; if so how long it took to complete, etc. The witness was unaware if anyone was arrested from Gorakhpur, nor knew the name of the police station at Gorakhpur from whose jurisdiction any such Death Sent.2/10; Crl.A.948 to 951/10 Page 135 arrest took place, or even the locality from where any such arrest took place; he said it was near the Gorakhpur railway station.149. PW-39 corroborated PW-16 and deposed that he joined in the investigation on 14.6.1996 along with PW-16, other police personnel and PW-101 and went to Jama Masjid near Urdu bazaar where at about 06:20 PM, information was received that Naushad with one other boy would go to Gorakh Pur from New Delhi Railway Station by Vaishali Express and that from there they would proceed to Nepal.PW-101 organized a raiding party and informed ACP P.P. Singh on the phone.All of them reached the Railway Station; P.P. Singh also reached there.On the pointing out of informer at about 07:35 PM, Naushad and Saba were apprehended.In his cross examination by the APP, he admitted that the police had brought two persons with muffled faces and on un-muffling their faces, he had admitted to the police that they had purchased a solder iron and wire from Death Sent.2/10; Crl.A.948 to 951/10 Page 155 his shop.He said that one of these persons may have been Naushad (this after Naushad was pointed out to him by APP); he was not certain of the identity of the other person being Naza.He said that the pointing out memo had been prepared and he had signed on it at point B (Ex. PW-31/K).This memo is dated 19.06.1996, and stated that Naushad and Naza, under police custody, voluntarily with muffled faces pointed out to Imperial Sound and Service and identified Jitender Singh and stated that on 13.05.1996 they had purchased a soldering iron and wire from that shop and that they had used the solder for making the bomb.The omission to cross examine PW-31 and 39 was adversely commented in the findings.Case of the prosecution is that A4 led the police party at BJ24, Shalimar Bagh and from there obtained Rs. 1 lac on the strength of two rupee currency note from Mangal Chand."In para 243, the Trial Court discussed the sequence of events; the police party had arranged to go to Shalimar Bagh; at that stage, PW-35 was joined in the proceedings.According to his deposition, SI Sanjay Kumar, A-4 as well as another police officer reached the premises at Shalimar Bagh.I however, told the police that one of those two accused persons namely Mirza Nisar Hussain @ Nasa who is present in the court might have purchased from me.It is Death Sent.2/10; Crl.A.948 to 951/10 Page 169 wrong to suggest that I categorically identified accused Mohd. Ali Bhat @ Mohd. Killey as the only person who came at my shop with accused Mira Hussain @ Naza for purchasing battery on 21.5.1996 when police removed the muffled from his face..."In the cross examination PW-60 Rajesh Kumar further stated that; "..... after picking up from my shop the van was driven to Central Road to Masjid road, where from a man from Vijay Electrical shop was picked up and from there in the same van I was taken to one police station situated in Lodhi road area...."He also stated that:The police witnesses, however, sought to depose that PW-60 had identified A-5 and A-6 as those who had approached him and purchased a battery.The Trial Court discussed the circumstances surrounding the arrest of Javed (A-9) and Asadullah (A-10); it believed that the two accused persons were arrested from Ahmedabad on 01.06.1996 along with Rashid and Juber Bhatt @Maqbool Bhatt from near Rupali Cinema.The Court relied on the testimonies of PW-98, PW-99, and the Judgment of Ld.The Court observed that the stay of the four, including A-9 and A-10 at Anukul Guest house in Ahmedabad on 24.05.1996 was proved by entry made in the hotel register at Serial number Death Sent.2/10; Crl.A.948 to 951/10 Page 183 4310 dated 25.05.1996; it was in the name of Rashid.However their stay at Anukul Hotel and arrest dated 01.06.1996 was believed.The object of the gathering was not proved and the articles recovered from their possession were not able to connect the accused with the crime.The Trial Court held that A-9 was not able to show the purpose of his visit to Ahmedabad and why he alongwith his associates had stayed at Anukul Guest House on 24.05.996; it was also held that the presence of A-9 in a suspicious circumstance in Ahmedabad from 24.05.1996 to 01.06.1996 and his failure to explain the purpose of his visit was an incriminating circumstance against him.As far as A-10 was concerned, the Trial Court held that his mere apprehension on 01.06.1996 and his stay at Anukul Hotel on 24.05.1996 without any further incriminating evidence was not enough to connect him with the commission of offence.The Counsel for the Appellants urged that there was no evidence on record to show where the accused persons were from 25.05.1996 to 01.06.1996 (i.e. after they checked out from Anukul Hotel and till they were arrested).Javed (A-9) in his statement under Section 313 Cr.Even in his confessional statement (Ex.PW-100/A; pg.220 Vol.7), Javed, in reply to Question 1 stated Death Sent.2/10; Crl.A.948 to 951/10 Page 184 that he was arrested from a hotel in Ahmedabad on 24.05.1996 at about 03:00 PM.It would therefore be necessary to analyze the evidence of the two Gujarat Policemen, PW-98 and PW-99 in this regard.PW-98, B.R. Patil, deposed that in May 1996, while he was posted as DSP, ATS Ahmedabad, a TP was received giving information that Asadullah and Rashid would be crossing over the Indo Nepal border and that they would be reaching Gujarat to carry out explosions in Ahmedabad.Rajvanshis (PW-99s) team started searching for these persons in Ahmedabad.He further deposed that on 01.06.1996, PW-99 found 4 persons who disclosed their names as Asadullah (A-10), Rashid Ahmed, Juber Bhatt (Zulfikar) and Javed Khan (A-9).They were interrogated by PW-99 and an FIR 12/1996 was lodged against them u/s 120B, 121, 122 IPC.He further deposed that on 02.06.1996 further investigation of the case was handed over to him; PW-99 had prepared the personal search memos and seizure memos of the accused.PW-98 identified accused Javed (A-9) and pointed to another accused and identifies him as Asadullah (A-10).However the accused said that his name was Abdul Gunny Goni to which the witness stated that Asadullah was one of the aliases of Abdul Gunny Goni.PW-98 further deposed that during the investigation Javed (A-9) made a disclosure statement regarding the bomb blast at Lajpat Nagar, New Delhi before Insp.Rajvanshi (PW-99).PW-99, B.M. Rajvanshi, of Gujarat Police deposed that on 24.08.1995 Death Sent.2/10; Crl.A.948 to 951/10 Page 185 he was posted in the Anti-Terrorist Squad, Ahmedabad, Gujarat and that on 23.05.1996 he was ordered by the Deputy Inspector General of Police, ATS to look into intelligence received regarding two terrorists Asadullah and Rashid entering India from Nepal.The tele-printer message and fax received by the Director General of Gujarat Police stated that these two terrorists would be reaching Ahmedabad via Mumbai from Kathmandu and that they would be renting a house in Ahmedabad and would plan explosions in big markets in Ahmedabad.PW-99 further deposed that SI Wagela informed him about these facts and thereafter he went to the hotel and saw Rashids name in the hotel register.He deposed to searching the four persons and that at around noon they found four suspicious persons near Rupali Cinema and his bringing them to the ATS office.He further deposed that after interrogation it was discovered that the said four persons had come from Kathmandu with the intention to sabotage the city.He further deposed that the 4 persons arrested were Asadullah (A-10), Rashid, Javed Khan (A-9) and Maqbool Butt.An FIR bearing no 12/1996 was lodged against them u/s 120B, 121, 122 IPC.PW-99 further deposed that Asadullah made a disclosure statement in which he gave details about how the conspiracy to cause sabotage in India was hatched in Pakistan.He further deposed that the fact that Asadullah and Javed were involved in the Lajpat Nagar blast was disclosed by both the accused.He further deposed that he prepared both the disclosure statements (Ex.PW-99/A and Ex. PW-99/B).On the basis of Javeds (A-9s) disclosure statement ATS Ahmedabad sent a wireless message Ex.PW-91/A and Ex.PW-91/B on 02.06.1996 to Delhi Police informing them about the possible involvement of A-10, A-9 and Maqbool Butt in the Lajpat Nagar blast.In the wireless message, ATS Ahmedabad also mentioned about delivery of explosives at Wajid Kasais house in Delhi.They used to live in Naya Bazar, Kathmandu.In April 1996, prior to Eid he had seen a bag and an attach (case) in the room they used to reside in.The bag contained gun powder (Barud) and the attach contained a wireless set, detonator, time pencil and remote control.He further stated that Javed Seniors (Javed Kirwas A-15) boss Bilal Beg (A-11), whom he (A-9) had never seen, used to reside in Pakistan.On 29.04.1996, the day of Eid, Julfikar alias Ayub came from Pakistan to Kathmandu and both A-9 and Latif (A-7) went to receive him at the airport (Bilal Beg had told Latif that Death Sent.2/10; Crl.A.948 to 951/10 Page 189 Julfikar had worn a black pant and a yellow colour shirt).A-9 further stated that he asked Zulfikar whether he lives in Pakistan to which Julfikar replied that he is not a citizen of Pakistan and was a resident of Kashmir; he had gone to Pakistan for training.A-9 further stated that he showed Zulfikar the attach and bag and asked him what type of articles were kept in it; Zulfikar replied that they were Time Pencil, Detonator and Remote Control.A-9 knew about the wireless set from before.On 06.05.1996 two more persons came from Pakistan and stayed with them at Kathmandu.Both these persons told Latif (A-7) that nobody should visit their room; A-9 did not know their names.On 08.05.1996 Javed Kirwa (A-15), Mahmood Killey (A-6), Naza (A-5) and Riyaz Moula (A-13) came to Kathmandu (A-9, Latif A-7 and Javed Kirwa A-15) used to work together.In the evening of 08.05.1996 Javed Kirwa (A-15) asked A-9 to accompany him to Delhi alongwith a bag containing gun-powder (barud) and two detonators.On 10.05.1996 Javed Kirwa @ Javed Senior (A-15) had sent Naza (A-5) to Delhi to make arrangements for the blast in Delhi.On the evening of 11.05.1996 A-9, with Javed Kirwa @ Javed Senior (A-15), Mohd. Killey (A-6), Riyaz Maula (A-13) and Javed Soparewala left for Delhi from Kathmandu.In the morning of 12.05.1996 they reached the border.A-9 remained at the border and the rest moved ahead.Javed Kirwa @ Javed Senior (A-15) and Naza (A-5) had asked him (i.e A-9) to leave the bag at Nazas friends house i.e. at Wajid Kasais house (PW-13).The Trial Court, in its impugned judgment, has highlighted - indeed gone into some details - about the prosecutions deficiencies, in examining witnesses, failure to follow leads, and present evidence sufficient to prove its case beyond reasonable doubt against all those brought to trial (A-1 to A-10).On an analysis of the evidence, the Trial Court concluded that the materials proved before it were inadequate, as far as four accused were concerned (A-4, A-7, A-8 and A-10).This resulted in their acquittal.So far as A-1 and A-2 were concerned, the Court held that apart from recovery of explosives, there was no material to prove their role as conspirators in the bomb blast; the Court also held that there was no evidence to show that A-1 and A-2 had facilitated, or participated in, movement of materials, resources or in the planning of the crime.The prosecution has miserably failed to justify as to why no TIP of the case property recovered in this case or that of the accused persons arrested in the case conducted from the prosecution witnesses.The case of the prosecution is that the accused persons led the police team at various places during investigation and pointed out various places from where they had arranged articles for preparation of cylinder bomb planted in the maruti car in question.Perusal of the file reveals that number of prosecution witnesses examined by the police during investigation and whose statements were recorded under Section 161 Cr.PC have turned hostile and did not support the prosecution.The police during investigation did not seize relevant record pertaining to the visits/stay of the accused persons in the hotels/guest houses prior to their arrest.Statements of the concerned employees/Managers of the hotels were not recorded.The police did not join the local police at any stage during investigation and did not make any entries of their visits out side Delhi.They were arrested and a personal search was conducted (Ex.PW-16/A and Ex.PW-16/B).Disclosure statement of A-4 was recorded (Ex.PW-16/C) in the Operation Cell.The witness signed it.The Appellant A-3 questioned his arrest, as claimed by the police and submitted that the prosecution did not prove this circumstance.Having regard to this , and the fact that PW- 13 (who is supposed to have been met and been entrusted with explosives, and who in turn disclosed about A-3 to A-9), never supported the prosecution case, the first link in the chain about A-3's involvement in itself is not proved. A-3 therefore argued that his involvement in and further role not having been proved, the prosecution was unable to establish the primary facts as to how he was one of the perpetrators of the crime.Counsel emphasized the fact that this link in the chain of circumstances alleged against A-3 was vital; having snapped it, the prosecution had been dealt with a severe blow at the initial threshold and the Trial Court fell into error in proceeding to hold as it did that he was involved in the bomb blast.It was next argued that one of the reasons for the acquittal of A-4 was based on the ground that the circumstances of his arrest were not proved.In not having done so and having glossed over the fatal infirmities alleged against A-4, which were material and relevant for A-3, the Trial Court fell into error.Although PW-105 deposed about his presence in the railway station, the fact remains that none of the other three witnesses i.e. PW- 16, PW- 39 and PW- 101 mentioned about his appearance during the proceedings at all.The prosecution had alleged that soon after the bomb Death Sent.2/10; Crl.A.948 to 951/10 Page 137 blast, A-3 went missing.However, A-3 was not traceable.In the circumstances, the police kept vigil near his house.There is some other evidence by way of oral testimony of other witnesses to this effect.However, PW- 92 did not support the prosecution.A-3 on the other hand relied upon the testimony of PW- 92 that in fact on 28th of May 1996, he witnessed him (A-3) being taken away by the police.On the basis of this as well as a telegram said to have been sent by a A-3's father, to the National Human rights Commission, it was argued that the arrest in fact never took place on 14-06-996 and was a completely stage-managed affair.The prosecution had almost closed its evidence when an application under Section 311 Cr.PC was moved almost 12 years after the incident, and the testimony of this witness was permitted to be recorded.However, PW-16 did not mention about PW-105's presence.In these circumstances, there is some doubt as to whether PW-105 was present during the arrest and the immediate aftermath.The argument on behalf of A-3 that A-9's confession did not mention him, though attractive, is not relevant, and is inconsequential.A-9s role appears to have been to reach Delhi via Gujarat and hand over the explosives.This seems to be the substance and tenor of his statement made to the Gujarat police immediately after his arrest and in the disclosure statement.Therefore, it was not necessary for him to mention A-3 or his role.For inexplicable reasons, PW- 13 (who was supposed to have been given the explosives, and in turn facilitated the handing over or actually handed them over to the other accused involved in scheming and Death Sent.2/10; Crl.A.948 to 951/10 Page 139 implementing the ghastly crime) was not named as accused.PW- 13 did not support the prosecution story at all during the trial.The court therefore had to deal with this situation.The prosecution had recorded a statement from Wajid during the course of the investigation which mentioned A-3. PW-13 did not support this and he turned hostile during the trial.That would, in this Courts opinion, itself not give a lie to the entire circumstance leading to the possible role of A-9 which may otherwise be independently proved as also the circumstances of his arrest.Recoveries made at the behest of A-3 Naushad from his residence (Circumstance No. 10 - para 181 of the impugned judgment)The Trial Court held that A-3s statement after arrest, i.e. Ex. PW 31/B pursuant to which he led the police team to his residence at P7, First Floor, DDA Flats, Turkman Gate, Delhi from where, he led to the recovery of two RDX bricks (Ex. PW18/64 and 65) in a green polythene bag (Ex. P17); a timer watch (Ex. P8), the iron solder (Ex. P9), a wire Ex.P10, screw driver Ex.P11, pliers Ex. P12, wire cutter Ex. P13, two araldite tubes Ex. P14, electric wire Ex. P15 and one gas cylinder had all been proved.The witnesses who spoke about this circumstance were PW-31, PW-41 and PW-101, who were members of the raiding party.The two RDX slabs were seized pursuant to A-3 leading the police to a room on top of the premises, and pulling it; they were lying under a steel box.Other articles recovered were a timer-watch (Ex. P8), an iron solder (Ex. P9), a wire Ex.P10, screw driver Ex.P11, pliers Ex. P12, wire cutter Ex. P13, two araldite tubes Ex. P14, electric wire Ex. P15 and one gas cylinder.The witnesses mentioned that the raid took place during early hours of 15/6/1996, after A-3s disclosure statement was recorded pursuant to his arrest the previous evening.The prosecution had relied on the testimony of Death Sent.2/10; Crl.A.948 to 951/10 Page 142 PW-92, Abdul Samad, who resiled from the statement recorded during investigation.He also admitted his signatures on the recovery memo.The prosecution version about the circumstances surrounding the recovery of the RDX, in the opinion of the Court, was adequately established.The disclosure statement of A-3 mentioned that those explosives were hidden in his house; he led the police to the place, resulting in the recovery.As far as the testimony of PW-92 goes, undoubtedly he did not support the prosecution.However, he did not deny his signatures on the recovery memo; he also mentioned that A-3 was arrested by the police, but much earlier.Now, even if his testimony were unsupportive of the prosecution, yet two things were not denied by him.These, in the opinion of the Court, lend corroboration to the prosecution witnesses deposition about the recovery of RDX slabs from A-3s premises.Naushads stay at Gorakhpur (Circumstance No. 13 - para 208 of the impugned judgment)The prosecution had sought to prove that A-3 Naushad fled Delhi after the bombing incident, and went to Gorakhpur, where he stayed in Gupta Guest house.The witness recorded the statement of the person from whom he had got the photocopy (Mr Chakarborty).He then went to Gupta Hotel from where he obtained a photocopy of the visitors book (Ex. Pw-40/C which was seized by memo (Ex. PW-40/D) which had the details of Mohd. Naushad.He went back to Gorakhpur on 29.6 1996 with Constable Surinder and seized one original visitors book (Ex. PW-40/1, through recovery memo Ex PW-40/E) from Hotel Gupta (where A3 had stayed) and an original visitors book from Hotel Buddha (where A5 and A6 had allegedly stayed).He recorded the statements of witnesses from where the visitors registers had been seized.He conceded to not having any record of investigations being handed over to him and he could not member if the fact Naushads train reservation was recorded in any document.He said that his statement regarding his investigation in Gorakhpur had not been recorded.He stated that he had obtained only the photocopy of the reservation chart and the witness statement to this effect only stated that that witness had handed over the photocopy to him.He stated that he had not obtained the reservation requisition slip.He said that he had not recorded any reason for not obtaining the original visitors book from the hotel at the first instance.He says that he did not try to verify the handwriting of the accused at Death Sent.2/10; Crl.A.948 to 951/10 Page 144 Gorakhpur; He could not recall the DD of his arrival in Delhi following his trip to Gorakhpur.PW-66 Constable Surinder joined PW-40 on 29.6.1996 in the investigation in Gorakhpur, when they seized the original register which contained Mohd. Naushads name at SI.No. 1283, which contained his name and address, vide seizure memo Ex. PW-66/A. In his cross-examination he admitted that the Serial nos. were not printed, but handwritten.He stated that he could not identify the writing on the register as belonging to Naushad since he was not personally acquainted with the man.The testimonies of PW-82 and PW-83 were also sought to be relied on.PW-82 was the owner of Gupta Hotel and Lodge.His statement pertains to the police having seized the visitors register in which there was an entry with Naushads name in it.PW-83 - Vijay Kumar Gupta the hotel manager of Gupta Hotel, stated that on 27.5.1996 Mohd. Naushad had stayed in the hotel and had made an entry in the Register (SI No. 1285) in his own handwriting.He said that the Police seized the register on 29.6.1996, and that his signature was on the relevant recovery memo (Ex. PW-66/A).The Trial Court, however, did not attach much credence to the alleged handwriting of Naushad on the hotel register, holding that the sample handwritings were not obtained in accordance with established procedure.The interesting feature of this circumstance is that the prosecution did not offer much less prove any departure and arrival memos for investigating Death Sent.2/10; Crl.A.948 to 951/10 Page 145 officers.Despite the fact that over the course of the investigation, the police claimed to have travelled to different parts of the country frequently, in no instance, have records of these been produced as evidence to establish the veracity of their claims.Even in the present circumstance, PW-40 SI Baljit Singh had visited Gorakhpur twice, and PW-66 Const.Surinder traveled there once, they were unable to recall the relevant DD entries recording their movements.Neither was permission sought from the concerned Metropolitan Magistrate to obtain the sample, nor was the sample obtained in the presence of a magistrate, or any public witness.Even if there had been no such irregularities, the expert witness PW-94 was unable to fix the authorship on the basis of comparison between the questioned and test handwritings.This can be gathered from a reading of the opinion, which reads as follows:A.948 to 951/10 Page 146As far as the railway Reservation Chart (Ex. PW40/A) is concerned, the Trial Court held as follows:A 3 has not disputed his name appearing at Serial No.7 in Reservation chart Ex. PW 40/A. No suggestion was put to PW40 SI Baljeet Singh that A3 had not travelled by Shaheed Express on 27/5/1996 from Gorakhpur to Delhi.Genuiness of the chart Ex. PW 40/A was not challenged."This Court notices that the chart was not proved by any public witness.The railway official from whom the Railway Reservation Chart was taken, (Shri Chakravarthy) was not produced as a witness; even the original chart, or its authenticated or certified copy was not produced; what was placed on record is a photocopy.It would be unsafe to assume that A-3 had in fact undertaken the journey, as alleged by the prosecution.So the railway reservation chart cannot be relied on, since this person has not proved it.PW-82s statement has been believed despite the fact that this witnesss statement pertains only to him having been a witness to the seizure of a photocopy of the visitors book of his hotel, and his statement, as well as the statement of police witnesses PW-40 and 66 seem to have been accepted at face value.PW-83 Vijay Kumar Gupta, a manager at the hotel says that on 27.5.1996 Mohd. Naushad Death Sent.2/10; Crl.A.948 to 951/10 Page 147 had stayed in the hotel and had made an entry in the Register (SI No. 1285) in his own handwriting.However, before this witness can be considered an eyewitness to the stay of A3 in Gorakhpur, it must be kept in mind that despite him having said that he had seen A3 in the hotel on 27.5.1996, he was not, at any point, shown the accused in order to verify his identity, during the trial.The Trial Court however, took the same line here as in the case of PW-40 and PW-66:"Again nothing was suggested to this witness in the cross examination, that A3 had not stayed at Gupta Hotel.A3 did not deny that the writing in the register was not in his hand."On the basis of the accuseds silence at the time of cross examination, the Trial Court seems to have inferred his guilt.This is a flawed approach, because the question of accuseds silence gaining significance would only arise if the witness who saw them in the hotel, or saw them travel on the train, or some other unimpeachable material, apart from the unverified photocopy of a railway reservation chart, had been produced.It also ignores the failure of the prosecution to match the handwriting of A-3 with the handwriting on the hotel register.The prosecution had alleged that on 19-06-1996, A-3 and A-5 led the police party to a shop M/s. Unique Agencies at 2610, Churiwalan, Delhi from where they had purchased a gas cylinder.This was sought to be proved by PW-31 and PW-36, who both deposed that they went with the accused, who took them to that shop, where the shopkeeper identified them, and a pointing out memo Ex. PW 31/M was prepared, which contained his signatures.The Trial Court first held that the accused did not challenge the two police witnesses testimony, which was an adverse circumstance against them."334 Prosecution has further examined PW54 Mehmood Kamal as a prosecution witness.In his deposition before the court, the witness admitted that he was running gas agency Death Sent.2/10; Crl.A.948 to 951/10 Page 150 under the name of M/s. Unique Agencies at 2610, Churiwalan, Delhi.The witness further supported the prosecution and deposed that in May, 1996 two persons had come at his shop for purchasing a gas cylinder.The gas cylinder was not available with him on that day.He asked the said two persons to deposit the price of the gas cylinder and to come on the next day to collect the same.Those two persons deposited with him Rs.290/and left on that day.Next date again they came at his shop and he delivered them one empty gas cylinder.This witness further substantiated the police version that on 19/6/1996 some police personnel came at his office and took him at their office at Lodhi Colony.The witness however failed to support the prosecution regarding identification of two persons who had come at his shop and who had purchased the gas cylinders.The witness was got declared hostile by ld.Addl PP for the State and was cross examined.In the cross examination, the witness admitted that his statement was recorded by the police.He further admitted that his signatures appeared on the pointing out memo Ex. PW 31/M at point 'B'.The witness however added that this memo was an already written document.The witness admitted that he had told the names of the said two persons to the police as Mohd. Naushad (A3) and Mirza Nissar Hussain @ Naza (A5).This witness did not allege if he had put his signature under any pressure by the police on the memo Ex.Had these accused persons not taken the police to the shop of PW54 Mehmood Kamal, the police must not have come to know about the names of these two persons as mentioned in the memo Ex. PW 31/M. The name and address of this witness was not known to the police prior to the disclosure statements of these accused persons.The police discovered the factum of this witness running gas agency in the name of M/s. Unique Agencies at 2610, Churiwalan only in pursuance of the disclosure statements made by these accused persons.It, however, stands established that both A3 and A5 in pursuance of their disclosure statements led the police team at the shop of PW 54 Mehmood Kamal.This circumstance also points an accusing finger against A3 and A5 for purchasing gas cylinders from his shop in the absence of any specific purpose.A3 & A5 did not offer any explanation for visiting the shop of PW Mehmood Kamal for purchasing gas cylinder.They did not justify purchase of any such cylinder for any particular purpose.They did not claim their presence on any other place on the day of visit to PW54 Mehmood Kamal."The Trial Court later concluded that:However, this fact was established by PW31 Insp.Surinder and PW39 Insp.Hari Ram Malik and PW36 Insp.Rajeshwar that it were both A3 and A5 who had taken them to the shop of PW 54 Mehmood Kamal.PW54 Mehmood Kamal in the cross Death Sent.2/10; Crl.A.948 to 951/10 Page 152 examination by the ld.Addl PP for the State however admitted that police had recorded his statement and pointing out memo Ex. PW 31/M contained his signature.In statement u/s 313 Cr.P.C A3 and A5 did not explain this incriminating circumstance against them as to why and for what purpose they had purchased gas cylinders from PW54 Mehmood Kamal."A plain analysis of the above discussion of evidence would show that PW-54 was unable to identify the accused; he was cross examined by the prosecution.In the cross examination, this witness denied the facts put to him:"It is wrong to suggest that the said two persons had led the police team to my shop on 19/6/1996 and had pointed out my shop as being the place wherefrom they had purchased two gas cylinders.I also did not make any such statement to the police.Confronted with point B to B of Ex. PW-54/A....It is correct that my signatures appear on pointing out memo Ex. PW-31/M at Point B-however this was already written document and was not read over to me when I signed it.It is correct that I had been told the names of the two persons by the police as being Mohd. Naushad and Mirza Nissar Hussain @ Naza....It is incorrect to say that accused Naushad (ld APP points towards accused Naushad) and accused Mirza Nissar Hussain @ Naza (shown to the witness by ld. APP) are the said two persons who had come to my shop on 13-05-1996 and were delivered gas cylinders on 14/5/1996.."It can be seen from the above extract of PW-54s testimony that the Death Sent.2/10; Crl.A.948 to 951/10 Page 153 witness not only failed to identify the accused, he refused that they had gone to his shop.This was his consistent story, both in examination in chief, as well as cross examination by the prosecution.In these circumstances, the Trial Courts inferring that the accused had, in fact, gone to his shop, along with the police on 19-6-1996, and even on 13-5-1996 for purchasing the gas cylinders is unsupportable.Like in the case of the stay of A-3 at Gorakhpur, the Trial Court imposed a reverse burden of proof, and drew adverse inference against the accused, for omission to cross examine PW-31, who merely stated that they had led the police party to the shop of PW-54, from where they had purchased gas cylinders.This is evident from the following excerpt of the Trial Courts judgment:This statement of the witness was not challenged in the cross examination.No suggestion was put to this witness in the cross examination that both these accused persons had not led the police party at the shop of M/s. Unique Agencies."An interesting fact is that PW-54 was not shown the gas cylinder which was recovered from A-3 Naushads premises, pursuant to his disclosure statement.Though a fairly commonplace article, the prosecution was in a position to put this article for identification during trial; it deliberately omitted to do so; not even a TIP was held in this regard.Taking into consideration all the facts and circumstances, it is held that the Trial Court fell into error in holding that the pointing out of M/s Unique Agencies, from where two gas cylinders were supposedly bought by A-3 and A-5, were proved.The Court also fell into error in completely ignoring the contradictory statement of PW-54, who did not, during the trial, at any stage, identify the accused.The evidence here was akin to those circumstances Death Sent.2/10; Crl.A.948 to 951/10 Page 154 which the Trial Court consciously rejected, whenever the prosecution based its case, solely on the testimony of police witnesses.For these reasons, it is held that Circumstance No. 30 alleged against A-3 and A-5 was not proved.Pointing out of Shop from where soldering was made (Circumstance No. 28 para 309 of the impugned judgment)PW-31 deposed that Naushad and Killey pointed out to Vijay Electronics on 19.06.1996 as the place from where they got the wires soldered to the battery.With respect to Imperial Gramaphone Company he said that the accused pointed out to this shop as the place from where the Jayco wall clock was purchased.PW-39 Inspector Hari Ram Malik corroborated PW-31 to say that they pointed out to Imperial Gramaphone Company, where they had purchased the soldering iron and that a pointing out memo was prepared and the shop owner signed on the same.PW-58 Jitender Pal Singh, the owner of the electronics store Imperial Sound and Service deposed that on 19.6.1996, the police went to his shop along with two people and told him that one soldering iron and solder had been purchased by the two people who had come with them.He said that he could remember these two people who had purchased the same from him and had made a statement to this effect to the police.He said the items were sold for Rs. 35/-.He even stated that he could identify the two persons if shown to him, but when they were shown to him, in a group of ten accused persons, he said that due to the passage of time he was unable to identify them.This witness was cross examined by the ld.Addl PP for State after declaring him hostile.In his cross examination by the ld.Addl PP, the witness admitted that the police had recorded his statement.The witness further admitted that the said two persons had come with muffled faces and they were seen by him when their faces were unmuffled in his presence by the police.He further admitted that he had told the police that the said two persons had come at his shop and purchased a soldering iron and solder wire from his shop.The witness further stated that A3 present before the court today might be Death Sent.2/10; Crl.A.948 to 951/10 Page 156 one of the two persons.However he could not say anything about the other accused A5 as having come to the shop for the above said purchase.The witness further admitted that the pointing out memo Ex. PW 31/K was prepared on which he signed at point 'B'.The witness stated that he could identify the soldering iron purchased from his shop if shown to him.The witness identified the soldering iron Ex. Z1after it was shown to him before the court.********** ******************Scanning the over all testimony of this witness reveals that soldering iron Ex. Z1 recovered by the police in this case from the residence of A3 was identified by this witness to be the same which was purchased from his shop for a sum of Rs. 35/- There is no denial that this independent public witness was not running his electronics spare parts shop at stall no. 8A in the name and style of Imperial Sound and Service.Statement of the witness is also categorical that both these accused persons were brought by the police in muffled faces at his shop in a police vehicle.Their faces were unmuffled and the accused persons were shown to the witness.He had informed the police that the said two persons brought at his shop on19/6/1996 had purchased the soldering iron and solder from his shop.The names of these two accused persons find mention in the pointing out / identification memo Ex. PW 31/K. This witness has categorically identified his signatures on Ex. PW 31/K which has not been challenged by the accused persons.No suggestion was put to this witness in the cross examination that both these accused persons had not come at his shop on 13/5/1996 and had not purchased any soldering iron and solder from his shop for Rs. 35/.No motive was imputed to this witness to falsely plead that both these accused persons whose names were disclosed as A3 and A5 had accompanied the police at his shop.Death Sent.2/10; Crl.A.948 to 951/10 Page 157Accused persons did not explain how and for what purpose they happened to purchase soldering iron and solder from the shop of this witness.There is no denial by the accused persons that soldering iron Ex. Z1 was not recovered from their possession or that it was never purchased from PW 58 Jitender Pal Singh.Police was not aware about the shop of the witness prior to the two accused persons leading the police party at his shop.Only after both these accused persons led the police party to the shop of this witness, the police came to know that they had purchased the soldering iron and solder from his shop.The existence of the shop at that specific place has not been controverted by the accused persons.The Trial Courts findings depended largely on the failure to cross examine the witness, and what was elicited from him during the cross examination by the prosecution.The Court did not focus on the inability of the witness to identify either accused.There is also no material on record to suggest that the soldering iron was of a distinctive nature or make, as to be dubbed an uncommon or out of the ordinary article, which the witness could have identified, especially since he dealt with and sold such articles in a routine manner.This circumstance therefore, was not proved against the accused, and the Trial Courts reasoning and findings are, therefore, erroneous on this aspect.The recovery of a key was discussed as Circumstance No. 26 in paras 291-295 of the impugned judgment.The prosecution had alleged that on 18.06.1996, A-3, A-5 and A-6 led the police party to a place behind the Nizamuddin ITI Bus Stand from where at Arab-ki-Sarai, a key was recovered.The prosecution alleged that the key had been prepared at Jama Masjid and was seized under Memo, Ex.31/F. The key was alleged to be a duplicate one in respect of the stolen Maruti Car, placed on record as Ex.The prosecution had entirely relied on the police testimonies of PWs-31,39 and 101 for this purpose.The Trial Court had rejected this circumstance, i.e. Recovery of duplicate key, stating as follows:On screening the testimony of prosecution witnesses on this aspect, again, I am of the view that the prosecution has failed to prove if duplicate key, Ex.P-7 was got recovered by the accused persons in pursuance of their disclosure statement or that it was the key which was used at the time of commission of theft of Maruti Car belonging to PW-8 - Atul Nath.......Moreover, as per prosecution, this duplicate key was got prepared from PW-64, Mohd. Rizwan at Jama Masjid.PW-64, Mohd. Rizwan appeared in the witness box.He turned hostile regarding preparation of duplicate key.The key (Ex.P7) was not shown to PW-64 to prove that it was the same key which was got prepared by the accused persons from him."In the light of the above reasoning, the Trial Court rejected this circumstance and also added that the absence of any public witness to support the recovery did not lent credence to the prosecution version in this regard.On analysis of circumstances discussed at S. No. 9, Death Sent.2/10; Crl.A.948 to 951/10 Page 159 10, 23, 26, 30, 31, 32 and 46(C), and in the absence of evidence to the contrary, the prosecution has proved beyond reasonable doubt that A-3 along with his associates not only hatched criminal conspiracy to cause bomb blast at Lajpat Nagar Market, Delhi but also actively participated in procuring various articles to execute the plan."This Court is of the opinion that ex-facie, the approach of the Trial Court pertaining to Circumstance No. 26 in holding in one part of the judgment that the prosecution had not proved its allegation, and concluding to the contrary while summing-up the incriminating evidence against the accused, is unsupportable.It was alleged that on 17.06.1996, A-4 led the police party to the house of Mangal Chand at BJ-24, Shalimar Bagh and on the production of a two rupee currency note, cash of Rs.1 lac was obtained from him.The cash was seized.The two rupee currency note had been seized earlier.The recovery of Rupees one lac in cash from Mangal Chand, which according to the prosecution, was obtained after showing a two rupee currency note to Mangal Chand, was part of the sequence which started with the arrest of A-4, who pointed-out A-7; two Death Sent.2/10; Crl.A.948 to 951/10 Page 160 rupee currency note was seized from A-7 and A-4 led the police party to Shalimar Bagh where the currency was recovered.The Trial Court concluded in para 542 that this circumstance had to be held against A-3 for the following reasons:Prosecution has proved recovery of Rs. one lakh by A4 from Mangal Dass.This money was meant for A3.Only A3 was beneficiary as A4 had accompanied him on 14/6/1996 to go to Gorakhpur where both were apprehended.A3 did not explain presence of A4 with him.He did not assert if money collected by A4 was not meant for him.This circumstance also is at par with the contents of disclosure statement made by him."He, A-4 and SI Sanjay Kumar went inside the home. A-4 gave two rupee currency note to Mangal Chand, who verified it and gave Rupees one lac currency note in another bag.At that stage, other police staff reached the premises and seized the two rupee currency note and the one lac rupee currency which was kept under seal "RPG".The seizure memos were Ex.PW-17A and 17C. The currency notes were produced before the Court.The prosecution nowhere mentioned that A-3 was taken with the police party and either identified by Mangal Chand or PW-35 did not produce any identification in the form of an Employment or Voter Identification Card.In the cross-examination, what emerged was that summons was sent by the Court to his Sonepat, Haryana address.The appellant had urged that there were no details of that address in the list of witnesses filed together with the charge-sheet.The witness, in the course of his statement submitted that he never mentioned he had office at Shalimar Bagh nor resided there.His testimony, in this regard, can only be seen by the Court as regards the alleged handing-over of the seal to him.PW-17, SI Sanjay supported the recovery.Furthermore, and most importantly, the prosecution made no attempt to produce Mangal Chand from whom the amount - alleged to be payable and in fact held to be payable to A-3, was recovered.If so, Mangal Chands role was, at least, as one of a facilitator; and at no stage did the prosecution attempt to explain why he was not interrogated or taken into custody.All these have to be viewed in the backdrop of the somewhat startling conclusion drawn by the Trial Court in para 251 that the recovery of Rupees one lac was an incriminating circumstance against A-3, Naushad "despite the fact that it was at the instance of A-4 and on the showing of two rupee currency note allegedly recovered from A-7."The following conclusion was drawn by the Trial Court on the basis of such material:Death Sent.2/10; Crl.From the testimonies of the prosecution witnesses referred above it stands established that A4 in pursuance of his disclosure statement obtained Rs. 1 lac from Mangal Chand residing at BJ24, Shalimar Bagh on the strength of two rupee currency note shown to him.The police was not aware about all these facts prior to A4 leading the police team at that specific place.A4 has failed to explain as to how and under what circumstances, he was to get Rs. 1 lac from Mangal Chand.He also failed to explain as to for what purpose, he had collected the heavy amount from Mangal Chand.Memo Ex. PW 17/C contains signature of Mangal Chand which shows that Mangal Chand was residing at the given address.Obtaining of Rs. 1 lac by A4 from Mangal Chand substantiates the story presented by the prosecution that Rs. 1 lac collected from Mangal Chand were meant to be received by A3 for his role in the incident."The conclusion of the Trial Court in the above regard is not only on the basis of any evidence but it appears to be entirely on hearsay.This can be clearly seen from the discussion with regard to the role of A-7, appearing at paras 596-602 of the impugned judgment.In para 597 it was in fact stated that:This occurrence took place on 16/6/1996 when conspiracy to cause bomb blast had already came to an end.Prior to 21/5/1996 no active participation of A7 in the incident has been brought on record.It could have been given even by one person.This version of the prosecution has not been believed in the circumstances referred above.Even if it is assumed that A7 had delivered two rupee currency note to A4 on 16/6/1996, it does not establish him to be a member of conspiracy to cause bomb blast on 21/5/1996 at Death Sent.2/10; Crl.A.948 to 951/10 Page 163 Delhi which was no more in existence.The testimony of PW-35 nowhere reveals that at any stage was Mangal Chand questioned as to whom the money was meant to be given to.Even if he were to have implicated A-3, without the primary evidence of Mangal Chand, PW-35 could not have proved that fact.All that could have been concluded was that at the instance of A-4, two rupee currency note was shown to Mangal Chand, who handed-over Rupees one lac.This fact was disbelieved by the Trial Court, in paras 596 to 602 of the impugned judgment.The Trial Court also held that the post-event recovery of something not connected with A-7 could not be attributed to A-7 or held to be incriminating as against him.Similarly, it also concluded in respect of A-4 that the conclusion of the amount could not be held as incriminating against that accused (A-4), in the following manner:Since Mangal Dass was not directly known to A4, collection of Rs. 1 lakh by him only on the strength of two rupee currency note is not a factor to prove his involvement in the incident.Anybody having a currency note of Re. two could have got the cash from PW Mangal Dass.In the absence of any material, there was no basis for the police to arrest A4 in this incident.The prosecution had alleged 17 circumstances - 15 against A-5 Naza.These were:Now, their testimonies are in direct conflict with that of PW-60; that witness could not identify any accused as the purchaser; he said in the cross examination after being declared hostile that he was not sure whether the two accused had visited his shop.The Trial Court, however, held that since the witness admitted that when the two accused persons pointed out his shop and identified him, police prepared memo Ex. PW 31/L and he signed the same at point 'B'.It was also held that:"Overall testimony of this witness reveals that no material discrepancies have been elicited in the cross examination of this witness to discard his version given before the court.Nothing has come on record to show that this independent public witness did not run his shop under the name and style of Death Sent.2/10; Crl.A.948 to 951/10 Page 170 Ganesh Electronics at shop no. 21 Jangpura.This witness categorically testified that on 21/5/1996 two persons had purchased 9 volt battery from him for a sum of Rs. 95/-.No enmity has been imputed to this witness for falsely claiming sale of 9 volt battery from him for Rs. 95/. Again this witness is categorical that on 19/6/1996 police had brought two persons at his shop and one of them had identified his shop from where 9 volt battery was purchased.This witness pointed out towards A5 to be one of the said accused persons and did not identify the other accused who had accompanied him.This witness has no ulterior motive to falsely identify A5 to be the person who had purchased 9 volt battery from him.This witness elaborated his version and voluntarily stated that the two persons were brought in the maruti van at his shop and the said persons were in muffled faces.When the said two persons were unmuffled, he was asked whether they had purchased the battery from his shop and he replied that when the said persons were saying that they had purchased the battery from his shop, they might be correct.He further admitted that out of those two persons, A5 might had purchased the battery from him.However, in the subsequent cross examination, the witness cleared the doubt and asserted that he had told the police that the above named two accused persons pointed out his shop and identified him.The police prepared the memo Ex. PW 31/L and he had signed the same at point 'B' and the above named two accused persons had also signed the said memo.No suggestion has been put in the cross examination that memo Ex. PW 31/L was not prepared at his shop or that the accused persons did not sign the same.Accused persons have failed to state as to how and under what circumstances, their signatures appeared on the pointing out memo Ex. PW 31/L. These signatures of both these accused persons on the pointing out memo Ex. PW 31/L in the presence of PW60 Rajesh Kumar categorically establishes that both of them had led the police team to the shop of PW 60 Rajesh Kumar and had pointed out the shop from where they had purchased 9 volt battery.Again this fact was not in the knowledge of the police prior to the accused persons taking the Death Sent.2/10; Crl.A.948 to 951/10 Page 171 police party to the shop of PW60 Rajesh Kumar in pursuance of their disclosure statements.Case of the prosecution is that this battery was used in the bomb blast.This Court is of the opinion that the witnesses doubt regarding A-5 and inability to identify the other accused, and his volte face, renders his testimony that they had led the police to his shop, shaky.Though in the examination in chief, the witness mentioned about purchase of battery from his shop by two individuals, his inability to identify either clearly, during the trial undermines the prosecution story.He had also stated that one of the buyers had a "massa" on his face (i.e. a scar or birthmark).The prosecution did not attempt to connect this aspect with either accused; the Trial Court also overlooked this fact.Like in the case of other circumstances, such as purchase of gas cylinder, purchase of araldite, pointing out by the shop keeper of "Dulhan Dupatta" etc, the primary fact is the identification of the accused concerned, as the individuals who went to the shop to buy the article, on some day prior to the incident.This was to establish a link in the chain of circumstances, which tied up to the various act preparatory to the offence itself.The absence of positive identification nevertheless led the court to hold as proved - in our view erroneously, that the accused had led them to a place which was hitherto unknown to the police, and from where the shopkeeper made some kind of identification, which was not refuted during cross examination, which in turn resulted in their involvement in the crime.The law is not concerned with proof of possibility of involvement, Death Sent.2/10; Crl.A.948 to 951/10 Page 172 which is all that the prosecution achieved through such evidence, but proof beyond reasonable doubt, i.e. such proof as would rule out all controversy or doubt that these accused did what was alleged against them, in respect of such circumstance.Reliance on the accuseds signatures, on the pointing out memo, in the absence of their clear identification, in the courts opinion, could not have been resorted to, to implicate them.(ii) Pointing-out of the place from where soldering of battery was done (Circumstance No.28)The prosecution had alleged that sometime in 1996, A-5 and A-6 had visited the shop of PW-38, Vijay Kapoor, and asked that two wires be soldered to a battery.He stated that the soldering was done for Rs. 5/-.He also stated that a month later, the accused had gone to his shop, and identified it, a fact which was recorded in Ex. PW13/N. In cross examination, this witness stated that his signatures were taken on blank paper, and that the memo was written in the Lodhi Office of the police.He also admitted not remembering how many customers had visited his shop that day, and further that his employee did the soldering requested for.Unlike in the case of other circumstances, the witness in this case was able to identify one of the accused (A-5) positively during examination in chief.However, his admission that the pointing out memo was prepared somewhere else, and that he signed on blank papers, was not contradicted.His further admission that he could not remember how many customers visited him the same day further weakens proof of this circumstance.The Death Sent.2/10; Crl.A.948 to 951/10 Page 173 absence of any date approximate period, further injects some vagueness into the evidence.The identification of A-5 has to be viewed in the backdrop of all these facts, which point to his unreliability, and having been tutored by the police.Here, a TIP would have been crucial, in lending assurance to the fact alleged, since the prosecution case is that this circumstance was to prove an act preparatory to the crime, and intrinsically connected with its execution.On an overall conspectus of the materials on the record, it is held that this circumstance was not proved beyond reasonable doubt, by the prosecution.(iii) Pointing out of the shop from where a clock was purchased (Circumstance No 29).To prove this, reliance was placed on the testimonies of PW-50 and PW-48. PW-48 Parmod Kumar during his examination stated that one person aged 19-20 years had visited his shop and had purchased a wall clock; he identified A-7 Latif.He was declared hostile by the prosecution; at its behest, during cross examination by the prosecutor, the witness deposed:"...it is wrong to say that the said two persons were in muffled faces, when they came to the shop with the police and that their faces got unmuffled after their arrival to the shop for getting them identified from me and that I had identified the said two persons on being the same who had come to the shop on 14.5.1996 for purchasing the wall clock.I did not make any statement to \the police.It is wrong to say that I had made a statement mark PW-48/A to the police.The witness is read over mark PW-48/A which he denied having made to the police.Death Sent.2/10; Crl.A.948 to 951/10 Page 174 "... It is wrong to say that the said three persons had come to the shop for the purchase of the wall clock."".... It is wrong to say that the accused Mirza Nisar Hussain and Mohd. Ali Bhatt @ Mohd. Killey (accused shown to the witness by Ld. APP) were the person who led the police team to the shop.It is wrong to say that I am deliberately not identifying the accused persons out of fear or having been worn over by them and deposing falsely....."The prosecution also relied upon PW-50 Yogesh Kumar Gupta to prove the said circumstance.PW-50 Yogesh Kumar Gupta deposed during his examination in chief that:During the cross examination of PW-50 Yogesh Kumar Gupta by Ld. APP, it was stated by the witness that:"... I cannot admit or deny whether accused Mirza Nisar Hussain @ Nasa and Mohd. Ali Bhatt @ Mohd. Killey (witness is shown and pointed out these two accused by Ld. APP) were the same two boys who had led police team to my shop on 19.6.1996......"The Trial Court, after noticing that the shop owner could not identify A-5 or A-6 as the two individuals who went to his shop to purchase a wall clock, for which a receipt was issued by PW-48 (recovery Memo PW-31/G) nevertheless held that they had taken the police to his shop, where they had stated that the purchase was made:This witness has nevertheless proved that on 19/6/1996 the police had brought two persons at his shop and theyhad told Death Sent.2/10; Crl.A.948 to 951/10 Page 175 about the purchase of wall clock from his shop.This witness also proved his signatures on the recovery memo Ex PW-31/G. He has admitted his signatures on the pointing out memo ExPW 31/H. This witness further admitted that the names of those two boys who had come at his shop on 19/6/1996 were mentioned in the memo and he had signed that memo after reading the same."Similarly, the Trial Court did not feel it strange to return a similar finding, with regard to appreciation of PW-48s evidence:It further stands established that on 19/6/1996 two persons whose names were disclosed as A5 and A6 had led the police team to the shop of the witness and had pointed out that it was the same shop from where they had purchased the wall clock.The statement of the witness was corroborated from the documentary evidence whereby sale receipt Ex. PW 48/A was issued out of the receipt book Ex. G1 which was seized vide seizure memo Ex. PW 31/G. This testimony of this witness substantiates the version of the prosecution that on 19/6/1996 both A5 and A6 had led the police team to the shop of PW48 Pramod Kumar from where they had purchased the Jayco wall clock.No suggestion was put to this witness in the cross examination that these two accused persons had not led the police team to the shop of the witness or that they had not purchased any Jayco wall clock from him.The prosecution had thus established that the Jayco wall clock was purchased from the shop of PW48 Pramod Kumar and PW50 Yogesh Kumar Gupta on 14/5/1996...."In the opinion of this Court, when both these independent witnesses, in the first instance, failed to identify the accused concerned, i.e. A-5 and A-6, who had allegedly visited the shop to purchase the clock, and one of Death Sent.2/10; Crl.A.948 to 951/10 Page 176 these witnesses, i.e. PW-48, identified someone else, the Court ought not to have drawn the inference based solely on the signatures in the "Pointing-out Memo", that the fact stood established.The shop owner, i.e. PW-50 was consistent in his omission or failure to identify the accused; PW-48 not only did not identify them but even went one step further and positively identified A-7 as the only individual who had gone to the shop and purchased the clock.The conclusion based on the fact that the witnesses had signed Ex.PW-31/G and Ex.PW-31/H, goes beyond the permissible limits of what can be considered by a Court under Section 27 of the Act read with proviso to Section 162 of the Cr.PC.Neither PW-50 nor his shop assistant, PW-48, corroborated this.Their failure to identify the accused was constituted as fatal blow to the prosecution allegations in this regard.In such circumstances, to seize the clutch at the pointing-out memo, in order to say that the said accused had led the police party to the shop and that in turn established the incriminating circumstance, was impermissible.Once the preliminary fact, i.e. purchase of the object or article from the shop by the accused could not be established, the secondary aspect that such accused had led the police party to the shop became irrelevant, under no circumstances did that secondary fact link the accused to the offence.(iv) Regarding A-5's travel from Kathmandu to Delhi (Circumstance No. 36).The prosecution had alleged that A-5 had travelled from Kathmandu Death Sent.2/10; Crl.A.948 to 951/10 Page 177 to Delhi before the bomb blast at Lajpat Nagar.He also identified the list as Ex.67/A. That list contained A-5s name.The IO of the case, PW-101 also deposed to this and further, seizure of A-5s Boarding Card which was marked and produced as Ex.The Trial Court in its findings (in paras 379-381) upheld the prosecution allegations."In the evening of 8th May itself Javed Senior had asked me to accompany (him) to Delhi along with the bag containing gun powder (barood) and two detonators.Thereafter on 10th May, Javed Senior had sent Naza to Delhi, who had to make a setting for blast in Delhi."(c) Circumstances alleged against A-6The Trial Court had analysed the evidence which included depositions of police witnesses as well as independent witnesses and took into consideration materials such as seizure memos, articles etc. and in the impugned judgment held that several circumstances alleged against A-6 Death Sent.2/10; Crl.A.948 to 951/10 Page 178 were not proved.The only surviving circumstance which has to be considered by this Court is the factum of A-6s arrest.In regard to this circumstance, the Trial Court relied on the discussion made by it vis--vis the arrest of A-7 who was alleged to have been along with A-6 at Gorakhpur; the Trial Court held that:Arrest of A-7 on 16/17-6-1996 in the manner claimed by the prosecution has not been believed by the Court as discussed above.Similarly apprehension of A-6 along with A-7 in the said circumstances cant be believed.(d) Circumstances alleged against A-9 JavedAs far as A-9 is concerned, the Trial Court discussed the evidence in respect of Circumstances No. 34 (Confessional statement); his stay at Satyam Hotel (No. 35) and his arrest (Circumstance No. 40) and held that all those circumstances were proved.(i) Arrest of A-9: Circumstance No. 40The prosecution had alleged that the Gujarat Police received information, sometime in May, 1996 about two individuals, i.e Asadullah and Rashid crossing the border at Nepal and entering India, and ultimately going to Ahmedabad to carry out a bomb explosion there.The State police, on receipt of information, started searching the city.He deposed that the police conducted a search, and eventually arrested Javed (A-9) and Asadullah (A-10) on 1-6-1996, along with the other two, near Rupali Cinema.He identified Javed Khan (A-9) and pointed to another accused and identified him as Asadullah (A-10), however the accused says his name was Abdul Gunny Goni to which the witness stated that Asadullah was one of the aliases of Abdul Gunny Goni.The Appellants counsel had argued that A-9s arrest did not take place on 1-6-1996 and that, in reality, he was taken into custody much earlier, on 24-5-1996, and kept in illegal detention.A-9 no doubt says this, in the statement recorded under Section 313, Cr. PC.However, the testimonies of PW-98 and PW-99 are consistent on this aspect.The appellants allegation of having been arrested on 24-5-1996 was not put to PW-99, who deposed about the arrest.After the Ahmedabad police arrested Javed (A-9), Asadullah (A-10), Maqbool Butt and Rashid on 01.06.1996 from near Rupali Cinema, Ahmedabad, A-9 and A-10 made disclosure statements before PW-99 B.M. Rajvanshi (Ex.PW-99/A and Ex. PW-99/B).Javed (A-9) in his disclosure statement mentioned about his involvement in the Lajpat Nagar blast and mentioned the name of all the accused persons except for Naushad (A-3).He stated visiting the house of Wajid Kasai (PW-13) on 14.05.1996 and leaving a bag containing explosives with his (PW-13s) sister for Naza (A-5).On receipt of the wireless message from Ahmedabad, on 02.06.1996 itself Insp.Paras Nath (PW-101) went to Wajid Kasais (PW-13s) house at Turkman Gate, Delhi and made enquiries from PW-13 and his sister Pappe (PW-14).A.948 to 951/10 Page 188It was alleged that A-9 was taken from Ahmedabad to Jaipur, where he was kept in connection with a bomb blast at Dausa, Rajasthan.The confessional statement made by A-9 was proved by PW-100, the Magistrate.A-9 further stated that when he reached Wajids house, Wajid and Naza (A-5) were not there and only women and children were present there.A-9 asked them to give the bag to Naza (A-5) and told them that it contained Death Sent.2/10; Crl.A.948 to 951/10 Page 190 Nazas clothes.Javed Kirwa @ Javed Senior (A-15), Mohd. Killey (A-6) and Riyaz (A-13) had reached Kathmandu before him.A-9 further stated that on his asking about the task in Delhi, they replied "that Naza (A-5) had been given after making the same and Riyaz Maula (A-13) was the mechanic because only he was the trained person." On 19.05.1996, Mohd. Killey (A-6) and Riyaz (A-13) went back to Delhi and Javed Kirwa @ Javed Senior (A-15) informed A-9 that the work in Delhi had not been done due to some defect.A-9 further stated that earlier on 06.05.1996 two persons had come from Pakistan and their names were Asadullah (A-10) and Rashid (he came to know of their names later).A-9 further stated that on reaching Mumbai, Asadullah (A-10) told them that they were to go to Ahmedabad and in the evening at 8:30 PM the four of them left for Ahmedabad and reached it on 24.05.1996 at 12:00 PM.A-9 further stated that on reaching Ahmedabad they went to a hotel, had a bath and then had their meal.Asadullah (A-10) and Rashid both left for Namaz whereas A-9 and Julfikar stayed back; 15 minutes later CBI officials and the manager of the hotel came to the room and conducted a search.At about 4/5:00 PM Asadullah (A-10) and Rashid came to the hotel from where the CBI officials took all of them and interrogated them.A-9 further stated that he told them that he had gone upto Patna only and he did not know anything Death Sent.2/10; Crl.A.948 to 951/10 Page 191 and did not have any knowledge regarding other things.He further stated that he only brought the bag to Delhi and there Javed Kirwa @ Javed Senior (A-15) informed him about the blast; Javed Kirwa @ Javed Senior (A-15) had himself done all the work regarding the blast on the basis of planning of Bilal Beg.A-9 further stated that he did not know anything about any other blast.The first three were awarded death sentence; A-9 was awarded life imprisonment.It would be relevant at this stage to extract the relevant parts of the Trial Courts judgment:At no Death Sent.2/10; Crl.A.948 to 951/10 Page 202 stage the police opted to put any of the accused persons for TIP from the prosecution witnesses.No DD entries regarding any such visits was proved on record during trial.The police failed to show by documentary evidence their visits to specific places.The accused arrested from outside Delhi were never produced before the concerned Court and no transit remand of any of the accused was obtained creating doubt of the date, place and the manner in which the accused persons were apprehended and arrested in this case.Number of witnesses cited in the list of witnesses were not examined by the prosecution during trial.Insp./ACP P.P. Singh is stated to be the overall incharge of the investigation.Death Sent.2/10; Crl.A.948 to 951/10 Page 203 However, at the first instance, he did not bother to appear as witness before the Court.Only when application u/s 311 Cr.No memos contain signatures of PW-105 ACP PP Singh.P.P. for the State during trial and specifically during final arguments always complained about non-cooperation from the IO of the case.He expressed his inability to address arguments in detail due to non-cooperation from the IO.No efforts were made during the last about more than 14 years to apprehend the co-accused persons against whom challan was presented as Proclaimed Offenders.Antecedent of none of the accused was collected by the police during investigation.In the disclosure statement of the accused persons, the police had come to know about the details of the antecedents of the accused persons and also regarding their various activities.However, no independent evidence was collected by the prosecution to substantiate the information recorded in the disclosure statements of the accused persons.No worthwhile evidence was collected by the police to show the activities of these accused persons prior to the incident and to find out as to in how many similar cases they were involved or any of them was ever convicted at any time."The Trial Court, as noticed from the extracts of its judgment, faulted the investigation with defective presentation of evidence, and omissions in regard to proof of allegations.A close reading of the impugned judgment itself would reveal that obvious inferences about lack of credibility of witnesses, in regard to circumstances, or general unreliability of prosecution in that regard, on specific aspects such as identification were glossed over, and superficially explained.These, in the opinion of this Court, point to a flawed understanding of "proof beyond reasonable doubt" in a criminal trial.The deficiencies are highlighted below, in respect of lack of identification of Death Sent.2/10; Crl.A.948 to 951/10 Page 204 accused by independent witnesses and use of signatures on memos (pointing out memos) as proof that the accused had led the police to a certain place, despite the failure of independent witnesses to identify the concerned accused.Gupta Hotel, at Gorakhpur.Furthermore, the passenger list of the train was not produced; only a photocopy was produced.Even the concerned witness, Shri Chakravarthy, did not depose during the trial.The Court did not believe the handwriting report; it does not anywhere corroborate that the sample writings of A-3 matched with that in the hotel register.All these omissions were overlooked and the Trial Court held that the prosecution proved the circumstance alleged.(b) The prosecution failed to examine Mangal Chand, who had given A-4 Rs. One lakh, on the latters showing the Rs. 2 currency note; this was to prove the incriminating circumstance against A-3 and the allegation that he was to receive such money for illegal purposes.The prosecution neither arrested Mangal Chand, who was prima facie an accessory to the crime; according to its showing; no explanation was offered in this regard.It did not even choose to examine him, or record his statement.This crucial omission was not given any weightage, and the Trial Court uncritically accepted the prosecution version that the money recovered was meant for A-3; no witness - neither independent witness, PW-35, nor even any other Death Sent.2/10; Crl.A.948 to 951/10 Page 205 witness - spoke about it.(c) A-3 was sought to be identified by PW-61, shop owner of "Dulhan Dupatta".The witness did not identify A-3; even after he was declared hostile, he denied the incident of A-3s visit during investigation.The witness however did not identify others - A-5 and A-6 even during the prosecutions cross examination.In spite of these obvious infirmities, and question mark about the credibility of the witness, as regards identification, the Trial Court whole heartedly accepted the police version.(d) PW-60, a shop owner, did not identify A-5 and A-6 in examination in chief, as the two individuals who had purchased a battery from him.He stated - in cross examination by prosecution that A-5 "might be" one of the two, purchasing a battery from him.Yet, this was accepted as proof of identification of the accused.(e) Similarly, the statement by PW-38 that A-6 "might have" been one - (along with A-5, whom he identified) as the individual who got soldering of wires done.(f) The statement of PW-48 regarding purchase of clock by A-7 (and not A-5 or A-6).He did not identify these two; yet his testimony was used against them.(2) Using signatures on pointing-out/recovery memos as incriminating circumstance.Death Sent.2/10; Crl.A.948 to 951/10 Page 206The previous discussion in this judgment would reveal that a large number of independent prosecution witnesses did not support the official version; they resiled from the statements made during investigation, and were declared hostile, and cross examined by the prosecution (these were PW-33, 48, 50, 58, 60, 61 and 92).The Trial Court noticed these facts, but went on to hold that the signatures of such witnesses in "Recovery Memos" or "Pointing out" memos were not denied, and consequently the statement recorded in Section 161 - about secondary facts that one or the other accused had visited the premises of such witness, during the investigation, had not been denied; consequently, the fact was proved, and that, in turn, was an incriminating circumstance.These instances are detailed below.(b) The statement of PW-50 - who could not identify A-5 or A-6 (alleged to have purchased a wall clock from him) "nevertheless" was used as establishing purchase of a wall clock "by two boys" (Ref.Para 324, impugned judgment) and that PW-50 had "no enmity to make false deposition against the accused in this regard." Proof of his signatures on Memos PW-31/G and PW-31/H were held corroborative and incriminating as to the fact that police had taken PW-5 and PW-6 to his shop during investigation.(c) PW-48s failure to identify A-5 or A-6 - who purchased a wall clock, and his identification of A-7 was nevertheless interpreted as incriminating A-5 and A-6 because of seizure memo, Ex.31/G.The Court noticed (para 335) that the witness "failed to support the prosecution regarding identification." Yet, the Court inferred, on the basis of the Memo, Ex. PW-31/M, signed by PW-54 on the basis of its observation that "no suggestion was put to this witness in the cross-examination that both the accused persons had not led the police party to his shop", (para 337) and that though the witness "opted not to support the prosecution on material circumstance", yet, "it stands established" that A-3 and A-5 "led the police team to the shop of PW-54" (para 337).(e) Similarly, the failure of PW-64 to identify A-3 and A-5 as those who got a duplicate key made, was ignored and the circumstance that the said accused had led the police to the witnesss shop, during investigation, when he allegedly identified them, was based on his signatures on PW-31/J.(f) PW-58 - from whom the prosecution alleged that A-3 and A-5 had purchased a solder iron - did not identify the accused in Court.He was arrested on 14th June.The recovery of lethal explosives, similar to the kind which resulted in the explosion at Lajpat Nagar, was not explained by him.Although other conspirators, such as Javed Kirawa and Bilal Beg were not tried, and there is no direct evidence forthcoming about A-3s role in the blast, the circumstances proved are sufficient to establish Death Sent.2/10; Crl.A.948 to 951/10 Page 227 that he was a conspirator, who intended to aid such crimes.Their appeals (Crl.Appeal Nos.950/2010 and 951/2010 filed by Mirza Nissar Hussain @ Naza and Mohammed Ali Bhatt Death Sent.2/10; Crl.A.948 to 951/10 Page 230 @ Kille) are allowed.The conviction and sentences as against A-9 are sustained.His appeal i.e. Crl.

Cited provisions: Section 120B in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 411 in The Indian Penal Code