Case: Md.Jamiluddin Nasir Vs. State Of West Bengal

Fakkir Mohamed Ibrahim Kalifulla, J. 1. These appeals arise out of the common Judgment of the High Court of Calcutta in Criminal Appeal No.428 of 2005 which was preferred by Nasir and Aftab together. The said Judgment was rendered on 05.02.2010 in Death Reference Case No.2 of 2005 in Sessions Case No.79 of 2002 as well as Criminal Appeal Nos.247 of 2005, 377 of 2005, 425 of 2005 and 428 of 2005. The Appellant in Criminal Appeal Nos.1240-41 of 2010 is Mohd. Jamiludin Nasir (hereinafter referred to as Nasir). The Appellant in Criminal Appeal Nos.1242-43 of 2010 is one Aftab Ahmed Ansari (hereinafter referred to as Aftab). 2. The Sessions Case was tried by the learned Judge XIIth Bench, City Sessions Court at Calcutta in Sessions Case No.79 of 2002. The FIR was registered on 22.01.2002 in FIR No.19 for offences under Sections 121, 121A, 122, 120B, 302, 333, 427 and 21 Indian Penal Code, 1860(hereinafter referred to as IPC), as well as Sections 25(1B)(a) and 27 of the Arms Act, 1959(hereinafter referred to as Arms Act). The FIR was registered at 06.36 a.m. The date and time of the occurrence was noted as 22.01.2002, 06.30 a.m. The General Diary (hereinafter referred to as G.D.) entry number was 1889 in the Shakespeare Sarani Police Station. The place of occurrence was noted as in front of the American Centre, 38H, Jawaharlal Nehru Road, which was stated to be located 1 1/4 km North-West of the Police Station. The name of the Complainant was Shri Barun Kumar Saha. According to the Prosecution, as many as 17 accused were involved in the offence, out of which only 9 faced Trial and from the remaining 8, there were 6 absconders out of whom one is now facing Trial and the remaining 5 continue to remain absconding. Two of the offenders, namely, Zahid and Salim died in an encounter on 27.01.2002, at a place called Hazaribagh, that is how 9 accused alone came to be tried in the Sessions Case No.79 of 2002. By a Judgment dated 26.04.2005, the Trial Court found A1-Mohd. Jamiludin Nasir, A2-Adil Hassan, A3-Rehan Alam, A6-Musarrat Hussain, A7-Nushrat Alak, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar guilty of charges under Sections 121A, 121, 122 of IPC and Sections 302, 307, 333, 467, 471 and 468 IPC read with Section 120B of IPC. They were also found guilty of the offences under Sections 25(1A), 27(2), and 27(3) of the Arms Act read with Section 120B of IPC. The trial Court in its Judgment ultimately convicted A1- Jamiludin Nasir, A2-Adil Hussain, A3-Rehan Alam, A6-Musarrat Hussain, A7-Hasrat Alam, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar and acquitted A4-Mohd. Shakeel Mallick and A5-Patel Dilip Kumar Kantilal of all the charges framed against them and were set at liberty forthwith if not required in any other case. Thereafter, by its order dated 27.04.2005, imposed the sentence of death for the offence under Section 27(3) of the Arms Act as mandated under the said provision, sentenced them to death for the charge under Section 121 IPC apart from other sentences of imprisonment for offences under Sections 121A, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B and 468 read with 120B of IPC 25(1A), 27(2) and 27(3) of the Arms Act read with 120B IPC. The trial Court held that all the convicts who were found guilty were to be hanged till death subject to confirmation by the High Court and all the sentences to run concurrently.3. By the impugned Judgment, the High Court acquitted A2-Adil Hussain, A3-Rehan Alam of all the charges. In so far as A6-Musarrat Hussain, A7-Nushrat Alak and A9-Shakir Akhtar are concerned, the Court acquitted them of the offence of waging of war but convicted them only for the offences under Sections 467 read with 120B, 468 read with 120B and 471 read with 120B IPC and thereby imposed a lesser sentence. As far as A1-Mohd. Jamiludin Nasir and A8-Aftab Ahmed Ansari are concerned, the High Court confirmed their conviction, as well as the sentence imposed by the trial Court on all counts. While A1-Nasir and A8-Ansari have come forward with the above appeals, the State has filed Criminal Appeal Nos.1244 to 1247 of 2010 as against that part of the Judgment of the High Court which modified the conviction and sentence in respect of A6- Musarrat Hussain, A7-Hasrat Alam and A9-Shakir Akhtar. Though, the above appeals were also posted along with the present appeals, which were being disposed of by this Judgment by our order dated 23.04.2014, we have de-tagged the said appeals for want of time. We are, therefore, now concerned only with the appeals filed by Nasir and Aftab. One other fact to be mentioned is that the acquittal of A4-Mohd. Shakil Mallick and A5-Patel Dilip Kumar Kantilal by the trial Court was not even challenged by the State before the High Court.4. The case of the Prosecution as narrated before the Courts below can be stated as thus: one Asif Reza Khan(hereinafter referred to as Asif), who was detained in October-November, 2001 in connection with the kidnapping of one Khadim, happened to meet Aftab in Tihar Jail where both of them were under detention. While Asif is a resident of Calcutta, Aftab is stated to be an Indian National as per the Chargesheet. While they were in detention in Tihar Jail, they stated to have developed friendship which later on gave scope for Aftabs involvement in the crime with which we are concerned. As the narration goes, Asif and Nasir were childhood friends as they happened to have their initial education in a Madarsa upto High School level though thereafter, they were separated. It is also the case of the Prosecution that some time in 1991 Asif had been to Kashmir and was in contact with one Salahuddin and Dr. Mushtaq Ahmed who made him feel that he should involve himself much more deeply in Jehadi movement. In the above-stated background when Asif happened to meet Aftab in Tihar Jail, where both of them were under detention in the year 1998/1999, their ideology seemed to have enabled them to develop close relationship. It is also stated that Asif was released from Tihar Jail in the year 1999 and met Nasir in Calcutta who was by then married and was on the look out for a job as he had just then left the avocation in which he was placed. Asif stated to have assured Nasir of continued employment with him having regard to their childhood relationship, which persuaded Nasir to join hands with Asif in the year 1999. Asif while inviting Nasir to extend his services in his business ventures, namely, export of leather garments along with his associates, also wanted him to get a suitable accommodation for one Niaz Hussain to set up his leather export business venture. Nasir was a resident of No.46, Tiljala Lane. When the building in No.1, Tiljala Lane was developed at that time, Nasir stated to have approached the developer, namely, PW-47, who also offered one of the flats in the ground floor of No.1, Tiljala Lane. At the behest of Nasir, Niaz Hussain was able to clinch the deal of securing the ground floor premises of No.1, Tiljala Lane, initially by paying an advance sum of Rs.98,000/- and the balance amounts in Rs.2000/-, Rs.1,00,000/- and Rs.60,000/-, in all a sum of Rs.2,60,000/-. The possession of the said premises was stated to have been handed over to Niaz Hussain, as well as his brother Fiaz Hussain in the month of April/July 2001. Be that as it may, after the initial association of Nasir with Asif in the year 1999 as their close intimacy developed further, Asif stated to have issued directions to Nasir for carrying out various assignments such as securing a fake passport for himself, as well as, for his friend, namely, Aftab in different names. Such fake passports stated to have been arranged by Nasir through a person in the passport office of Bihar. That apart, as was instructed by Asif, Nasir was sent to Agra and Jaisalmer. Nasir was introduced initially at Banaras to Aftab who according to Asif was his fast friend and that Nasir should function as directed by his close friend Aftab in all future endeavours through emails.5. In October, 2001 Asif introduced Nasir to Zahid, Salim and Sadakat when he went to Agra for the second time. In the first week of September, 2001 as per Asifs email, Nasir secured a rented flat at Khan Road, Khirgaon, Hazaribagh. After taking over possession of the ground floor flat at No.1, Tiljala Lane, it is stated that that was a place earmarked for all future meetings and on one occasion Asif deliberated that to raise more funds they should indulge in kidnapping activities. It appears that it was in that process Asif stated to have been detained in the case of kidnapping of one Khadim some time in October-November, 2001. It is further stated that in December, 2001 while he was in detention and was being enquired at Bhawani Bhawan, he was shifted to Rajkot at Gujarat where he was stated to have been killed in an encounter on 08.12.2001. When Asif met with his death on 08.12.2001, Zahid stated to Nasir and other gang members to take certain serious revenge actions and that they should wait for Aftabs orders for the same. Based on certain instructions issued by Aftab to Nasir, Sadakat and Zahid who came to Calcutta on 14 th to 16 th January, 2002, were lodged in the No.1, Tiljala Lane, Calcutta. The e-mail messages forwarded to Nasir and exchanged between Zahid, Sadakat and Aftab stated to have revealed that the untimely death of Asif in the encounter at Rajkot required to be retaliated in equal force and that should teach a lesson to the Government of India and the Police Personnel. With that object in mind, the whole emissary of the gang led by Aftab, which included Nasir, Sadakat, Zahid, Salim and others operated. The master mind was stated to be that of Aftab who was also supported with different ideas by Zahid, Salim, Sadakat and Nasir. In one of the messages forwarded to Nasir by Aftab which was also forwarded to the other accomplices it was said that there should be an attack on Bhawani Bhawan, where Asif was taken after his detention in Khadims case for interrogation. To the said suggestion, Nasir stated to have replied that it would not be a good proposition as many civilians would be seriously affected and the Minority Commission office was also near to Bhawani Bhawan. Thereafter, Aftab stated to have suggested as to whether their attack can be directed towards any American base where also large number of police security was being provided. While the said proposal of Aftab was considered for implementation by the other gang members, namely, Nasir, Zahid, Salim, Sadakat and others in the month of January, 2002, namely, on 19th, 20th and 21st survey was stated to have been made by the above stated gang members of the Consulate Office of America, as well as the American Centre. Thereafter, it was suggested again by way of an e-mail message to Aftab that the American Centre would be an ideal target as they found that the police security personnel were in large number, that they were operating in shifts, that one such shift was taking place in the early morning at around 6-6.30 a.m. and that the police personnel were very lackadaisical in their duties. The said proposal was suggested by the gang members to Aftab. It was thus stated to have been cleared by Aftab and thereafter, the plan was worked out by the other gang members of course with the consultation of Aftab by which a close survey was made on 20 th and 21 st, January, 2002. Initially a decision was taken to cause the attack on 21.01.2002, which was not carried out and Aftab was informed through an email about the same while he was assured that the attack will be successfully carried out on 22.01.2002.6. In pursuance of the above object, it is stated that the gang members had assembled at No.1, Tiljala Lane where Blue Colour Maruti 800 Car bearing Registration No.BRK-4907 and a Black Colour Suzuki Motorcycle WB-01-P 2144 were also kept in the premises which was used on 19th, 20th, 21st and 22nd January, 2002. After the initial rehearsal, stated to have been made on 19 th, 20 th and 21 st, on 22.01.2002 morning while Nasir and Khurram Khaiyam @ Abdullah left No.1, Tiljala Lane in the Maruti Car and parked their vehicle at Rippon Street Circular Road Crossing opposite Panjabi Tea Stall that (deceased) Zahid and Sadakat (now facing Trial) who also left No.1, Tiljala Lane in the early hours of the morning went to the targeted place, namely, American Centre around 6.30 a.m., that while Zahid was riding the bike at the spot in a slow speed, Sadakat stated to have opened fire with AK-47 rifle/automatic gun in a close range of about 10 to 15 feet towards the police personnel who were changing their shift and while carrying out the said operation, shouting "A sob sarkari kutta logo key markey ura deo" got into the pillion of the bike driven by Zahid which reached Rippon Street Circular Road Crossing where Nasir and Abdullah were waiting in the Maruti Car. After reaching the said spot Zahid stated to have proclaimed that the mission was carried out (KAAM HO GAYA) as planned and that Sadakat who was the pillion rider with Zahid stated to have got into the back seat of a Maruti Car and thereafter, the car and the bike left the Rippon Street Circular Road Crossing. Since, in the rehearsal session on 20th and 21st some passer byes at Rippon Street Circular Road Crossing happened to note the presence of the Maruti Car driven by Nasir and the Bike driven by Zahid due to some minor altercation at the spot, they were cited as Witnesses. In fact, PW-62 who along with one Gilbert Gomes were present during the said altercation at the same place, came to hear about the incident at American Centre after they came back to the neighbourhood. They went to Lalbazar to meet PW-101, Abu Saleh who was their neighbour and was posted at OC. They shared their apprehensions of the connection of the same vehicles and the persons involved at the altercation with the American Centre attack. PW-101 reported the same to PW-123 and stated that the description of the attackers attire, the vehicles and the time of attack match with the incident reported to him by PW-62 and his friend. However, based on the complaint made by Barun Kumar Saha PW-6 to Shakespeare Sarani Police Station through Wireless Centre, an FIR was registered. PW-123 was entrusted with the investigation along with a team. Subsequently, a team from Delhi stated to have visited Calcutta City Police informing about the hiding of certain militants in the city who are to be apprehended. A team was formed to find out the hideouts, through a reliable information about the hideout of the terrorists in Khan Road, Khirgaon and Hazaribagh. In pursuance to the said development, that place was surrounded by the police to nab the terrorists.7. The police team which proceeded to Khan Road, Khirgaon, Hazaribagh at 6.45 a.m. cordoned the premises and suspecting the inmates to be militants, stated to have announced that they should surrender putting down whatever weapons they possessed. While doing so, when they noticed two of the inmates escaped through the side gate shooting at the police and in the cross fire both of them were injured. When the injured were taken to the hospital, on the way, one of the injured by name Zahid made an oral dying declaration to PW-113 that he was one of the persons involved in the shooting spree at the American Centre, that he was the shooter and one Sadakat was the driver of the motor bike. The said Zahid stated to have died enroute the hospital. The other person Salim was admitted in the hospital who too later died. This happened on 27-28.01.2002. After the encounter that had taken place at Hazaribagh, while the shootout incident at American Centre was investigated by PW-123, who was heading the special investigation team, he received a vital information on the intervening night of 28-29.01.2002 at about 1.30 a.m. According to PW-113, on 20.01.2002, Calcutta Police arrived at Hazaribagh and a seizure list Exhibit-246 of PW-106s house which was rented to Nasir was handed over. According to the seizure list, two jackets were found which matched the attire of the American Centre attackers. This is how the search for Nasir since he was the tenant was started at 64, Tiljala Lane which was the fake address given by him at the instance of Asif on the said rent agreement. Through investigation, Nasirs address was found to be 46, Tiljala Lane. In pursuance of the said search, PW-123 went to No.13, Dargah Road which is the house of in-laws of Nasir, where he took Nasir into custody and based on his information made a search at No.1, Tiljala Lane where the Maruti Car and the Motor bike were seized. In fact after the commencement of his investigation on 22.02.2002 evening, the team of PW-123 was approached by PW-62, and one Gilbert Gomes (not examined) through the Inspector PW-101, Lalbazar who made statements relating to the incident of firing in front of American Centre and their statement revealed the use of Maruti Car and the Suzuki Motor bike at Rippon Street Circular Road Crossing. After landing at No.1, Tiljala Lane PW-123 could gather very many vital clues which led him to ultimately arrest of Aftab, who was already arrested by Dubai Police on 23.01.2002 and deported him to India on 09.02.2002. PW-123 could secure his custody through Court order on 23.02.2002. Based on Aftabs information, the residence of Asif was also searched where a diary maintained by Asif and a letter Exhibit-46/1 written by Aftab to the wife of Asif after Asifs demise was also seized. The letter was addressed to Bhabhiji for taking avenge on death of Asif. Later PW-105, a handwriting expert proved the handwriting of Aftab. In the Hazaribagh hideout after the encounter, PW-113 made a search of the premises where he could recover arms and ammunition such as AK-47 rifles, Pakistans national flag, bullets etc. According to PW-113, the deceased Zahid and Salim were Pakistani nationals and were members of Lashkare- Taiba, while Sadakat belonged to Uttar Pradesh.8. It is in the above stated background that the investigation team after a detailed inquiry ultimately filed its final report in Chargesheet No.38 of 2002 dated 26.04.2002 as against 15 persons and the charges were under Sections 121, 121A, 302, 307, 333 read with 122, 427, 467, 468 and 471 IPC. The Sessions Court, namely, the Calcutta City Court framed the charges against A1 to A9 on 29.08.2002 for offences under Sections 121A, 121, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B, 468 read with 120B and 427 read with 120B IPC apart from offences under Sections 25(1), 27(2) and 27(3) of Arms Act. As stated by us earlier, the trial Court acquitted A4 and A5 of all the charges while A1 to A3 and A6 to A9 were convicted of charges levelled against them.9. In the death reference, as well as in the appeals preferred by Nasir and Aftab as well as the other convicts, the High Court having confirmed the conviction and sentence imposed on Nasir and Aftab in toto and acquitted A2 and A3 while modifying the conviction and sentence in respect of A6, A7 and A9 for lesser offence by the impugned common Judgment, we heard these appeals preferred by Nasir and Aftab. 10. We heard Ms. Nitya Ramakrishnan for the Appellants and Mr. Siddharth Luthra, learned Additional Solicitor General for the Respondent State. We also considered the written submissions filed on behalf of the Appellants, as well as the State and deal with such of those submissions which are really relevant and deliver this Judgment. At the very outset, it must be stated that there was a detailed consideration made by the learned Sessions Judge of the oral evidence, as well as documentary evidence and material objects placed before it, while passing its Judgment on 26.04.2005. Equally, the Division Bench of the High Court has made a thorough consideration of the material evidence and also the correctness of the Judgment of the learned Sessions Judge. In fact, though more than 100 Witnesses were examined on the side of the Prosecution and more than 250 documents were placed before the trial Court, we find that the crucial evidence which led to the ultimate conviction of Nasir and Aftab were mainly based on the confession of Nasir and the oral evidence of PWs 1 to 123 and the Exhibits. Also based on the above evidence, certain questions put to Nasir and Aftab under Section 313 of Cr. P.C. were also referred.

Decision reasoning: 0[ds]At the very outset, it must be stated that there was a detailed consideration made by the learned Sessions Judge of the oral evidence, as well as documentary evidence and material objects placed before it, while passing its Judgment on 26.04.2005. Equally, the Division Bench of the High Court has made a thorough consideration of the material evidence and also the correctness of the Judgment of the learned Sessions Judge. In fact, though more than 100 Witnesses were examined on the side of the Prosecution and more than 250 documents were placed before the trial Court, we find that the crucial evidence which led to the ultimate conviction of Nasir and Aftab were mainly based on the confession of Nasir and the oral evidence of PWs 1 to 123 and the Exhibits. Also based on the above evidence, certain questions put to Nasir and Aftab under Section 313 of Cr. P.C. were alsocan usefully refer to the relevant conclusions reached in the said decision which has been set out in paragraphs 85 to 91. The said paragraphs are asAll these concepts of "due process" and the concept of a just, fair and reasonable law have been read by this Court into the guarantee under Articles 14 and 21 of the Constitution. Therefore, the provision of Section 27(3) of the Act is violative of Articles 14 and 21 of the Constitution.86. Apart from that the said Section 27(3) is alaw and has to obey the injunction of Article 13 which is clear and explicit. Article 13(2) is as follows: 13.(3) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 87. In view of the aforesaid mandate of Article 13 of the Constitution which is an article within Part III of our Constitution, Section 27(3) of the Act having been enacted in clear contravention of Part III rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void.88. Section 27(3) of the Act also deprives the judiciary from discharging its constitutional duties of judicial review whereby it has the power of using discretion in the sentencing procedure. This power has been acknowledged in Section 302 of the Penal Code and in Bachan Singh case it has been held that the sentencing power has to be exercised in accordance with the statutory sentencing structure under Section 235(2) and also under Section 354(3) of the Code of Criminal Procedure, 1973. Section 27(3) of the said Act while purporting to impose mandatory death penalty seeks to nullify those salutary provisions in theis contrary to the law laid down in Bachan Singh.89. In fact the challenge to the constitutional validity of death penalty under Section 302 of the Penal Code has been negatived in Bachan Singh in view of the sentencing structure in Sections 235(2) and 354(3) of the Criminal Procedure Code. By imposing mandatory death penalty, Section 27(3) of the Act runs contrary to those statutory safeguards which give judiciary the discretion in the matter imposing death penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which is one of the basic features of our Constitution.90. It has also been discussed hereinabove that the ratio in both Bachan Singh and Mithu has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21the ratio in Mithu and Bachan Singh represents the concept of jus cogens meaning thereby the peremptorynorm in international law for protection of life and liberty. That is why it has been provided by theAmendment Act of 1978 of the Constitution, that Article 21 cannot be suspended even during the proclamation of emergency under Article 359 [vide Articleof the Constitution].91. This Court, therefore, holds that Section 27(3) of the Arms Act is against the fundamental tenets of our constitutional law as developed by this Court. This Court declares that Section 27(3) of the Arms Act, 1959 is ultra vires the Constitution and is declaredthe above minute factors were required to be kept in mind while recording a confession made under Section 164 in order to ensure that the confession was recorded at the free will of the accused and was not influenced by any other factor. Therefore, while considering a confession so recorded and relied upon by the Prosecution, the duty of the Sessions Judge is, therefore, to carefully analyse the confession keeping in mind the above factors and if while making such analysis the learned Session Judge develops any iota of doubt about the confession so recorded, the same will have to be rejected at the very outset. It is, therefore, for the Sessions Judge to apply his mind before placing reliance upon the confessional statement made under Section 164 and convince itself that none of the above factors were either violated or given a go by to reject the confession, if the Session Judge has chosen to rely upon such a confession recorded under Section 164, the appellate Court as well as this Court while examining such a reliance placed upon for the purpose of conviction should see whether the perception of the Courts below in having accepted the confession as having been made in its true spirit provide no scope for any doubt as to its veracity in making the statement by the accused concerned and only thereafter the contents of the confession can be examined.We find that the Magistrate did not want to give any chance to anyone to gain the impression that the confession which the Appellant Nasir wanted to make was recorded without giving him any scope to rethink or that unaware of the consequences that he came forward to make the statement. In fact it must be statedwas thorough with the ingredients prescribed in Section 164 relating to the recording of a confession by an accused and that he was not carrying out the exercise in a mechanical way but with all earnestness and in a highly dispassionate manner. Therefore, that part of the requirement, namely, the procedure to be followed while recording a confession statement has been scrupulously adhered to bybefore allowing the Appellant Nasir to make his confession. Again at the end, the Magistrate certified in the manner required under Section 164(4) and it was mentioned that no police personnel was allowed in his chambers when the confession was recorded.Having perused the above proceedings which are part of the record of the trial Court, in particular the letter ofdated 21.02.2002, we find that the custody of the Appellant Nasir with the police on 21.02.2002 was in connection with a different case, namely, case No.53 dated 11.02.2002. Therefore, the judicial custody of the Appellant as between 13.02.2002 and 27.02.2002 in connection with case No.19, namely, the American Centre case was independent of the custody of the Appellant with the police on 21.02.2002 when he was produced before the learned Metropolitan Magistrate, 14 th Court with the requisition to record his confession. In fact in the said letter dated 21.02.2002,has requisitioned the learned Magistrate to provide judicial custody even in case No.53 dated 12.02.2002 up till 07.03.2002, while simultaneously making a request for recording the confession of the Appellanteven while considering the requisition made byin the letter dated 21.02.2002 for recording the confession, the learned Magistrate being aware of the statutory prescription contained in Section 164 Cr.P.C. rightly decided not to record the confession but issue directions to keep Appellant Nasir in the custody of the Superintendent, Presidency Correctional Home Alipore and produced him on 22.02.2002 at 1 p.m. in order to ensure that the Appellant was free from the influence of police. Therefore, the Magistrate having thus ensured that the Appellant Nasir was taken into custody of the Court and was entrusted with the Superintendent of the Presidency Correctional Home till his production on the next day at 1 p.m. It must be stated that by resorting to such a course, the Magistrate ensured that there was no scope for any lacuna being created in the recording of the confession of the Appellant. In the light of our above findings, we do not find any force in the submissions of the learned counsel for the Appellant on this score.When we read this part of the deposition ofalong with the answers to questions 1 to 18 inwe find thathad ensured prior to the recording of the confessional statement as to the mindset of Appellant Nasir, his readiness to make the confessional statement without any hindrance and uninfluenced by any other force including police authorities and only thereafter, proceeded to record the statement. Having seen the above part of the deposition ofand the answers to questions 1 to 18 inthe confessional statement of Nasir, we are convinced that the Magistrate had exhaustively dealt with the statutory prescription under Section 164 Cr.P.C. and there is absolutely no flaw in the recording of the said statement. Therefore, the said contention of the learned counsel also does not merit any consideration.24. Having held that the confession statement of Appellant Nasir made under Section 164 was free from any technical flaw in its recording, as well as the procedures contemplated under the said provision, we now proceed to examine the truthfulness of its contents.25. When we consider the various facts narrated by Appellant Nasir which are found in his answer to question No.19 which runs to as many as 16 pages since the confession of Appellant Nasir who is one of the main accused in the case on hand has been relied upon by the trial Court, as well as the High Court to a great extent, we wish to examine the same threadbare before expressing our views on such reliance placed upon by the Courts below. When we read the confession,we find thatit contains very many details pertaining to himself, his family members, his earlier contact with deceased Asif and his subsequent contact with Asif in the year 1999 and thereafter how through Asif he became part of the group of other accused persons and at various stages he came in contact with different accused at different places and as to how ultimately the conspiracy was hatched for making the attack at the American Centre and as to how it was finally executedalso explains as to how subsequently he came to be apprehended by the police and thereafter, his repentance for whatever had happened to which he was also a party which pricked his conscience and ultimately made him to volunteer himself and make the statement on his own uninfluenced by any other external force as he felt that he committed a great sin by being part of the occurrence against his own homeland. In fact we feel that we should make reference to the above factors noted by us in his confession before dealing with the submission of learned counsel Ms. Nitya Ramakrishnan as to the various deficiencies in the confession as compared to other evidence which according to learned counsel should dissuade us from relying upon the said confession statement.statement.36. Having noted the various facts in the confession of Nasir, it must be stated that such a meticulous description of men and material, date, time and events including the passwords andaddresses could have been revealed only by a person who was really acquainted with those details. It is very difficult for anyone to imagine these facts and put it in a narrative form. In fact, whatever lacunae that could be pointed out by Ms. Nitya Ramakrishnan was in our considered opinion a very insignificant one which would not in any manner either discredit the statement or would go to the extent of saying that the statement was designed and procured or tailormade at the instance of someone, much less the investigation team to suit the case of themust be remembered thatwho being a Judicial Magistrate, nothing could be stated that he was in any way either influenced or prejudiced or in any manner persuaded to tow in line with the Prosecution to record such a statement. There was not even a remote suggestion tothat he was under the grip of the Prosecution while recording the confession of Appellant Nasir.When we consider the said contention we can only say thathad the agreement in his hand which was dated 11.07.2001 while Nasir who was making his confessional statement was not referring to any specific document. While according to Nasir it was2001 as per the document, it is found to be 11 th July 2001. There is no difference in the year concerned, namely, 2001. In fact, Nasir himself was not sure as to whether it was April or May. Therefore, he said2001. As between2001 and July 2001 it must be stated that the same cannot be held to be such a serious discrepancy in order to state that on that score the confession which he was able to narrate with high amount of cogency which explains the sequence of events as from the early childhood of the Appellant till he realised his folly in 2002 when he came forward to make the confession should be rejected. We therefore, reject the said submission as the same does not seriously impinge upon the confession made by the Appellant.While, thus accepting the said position as stated by Nasir in his confession, thefactors pointed out was the version of13 and some variation in the version of6, 9, 15, 16, 18, 19 and 20. It is necessary, however, to refer to those Witnesses before answering the submission of the learned counsel for the Appellant. The learned counsel drew our attention to the deposition of Witnesses, namely,When we consider the above evidence,we find that3, Zahid made a declaration, while he was sinking, that he did the shooting operation and Sadakat was the rider. As far asevidence is concerned, the same cannot be relied upon for the simple reason that what was stated to him by Zahid cannot be taken as a dying declaration. In order to be a valid dying declaration as specified under Section 32, primarily such statement of a dead person would be relevant to the cause of his death or any of the circumstances of the transactions which resulted in his death and that too in cases in which the cause of his death comes intoapart, it is by now well settled that for a statement to be accepted as a dying declaration, it should have passed the rigorous tests laid down in various judicial pronouncements as such a statement would be aone. More so, when it is claimed to be a oral declaration not supported by any other evidence, be it oral or documentary, therefore, based on the ipsi dixit ofreferring to Zahids declaration, it cannot be accepted as a valid piece of evidence. Therefore, the said part of the evidence ofrelating to thedying declaration of Zahid will have to be eschewed from consideration. When we say so, we are cautious of the fact that the Hazaribagh encounter gave a vital clue to the Investigating Team dealing with the American Centre case, which in our considered opinion will not be in any way hindered by eschewing from the considering the dying declaration aspect ofevidence. If thedying declaration of Zahid is eschewed from consideration, what is left is the evidence of the eyewitnesses, i.e.9, 15, 16, 18, 19, 20, 62 and the confessional statement ofs account merits acceptance as they had the full view of the assailants. In fact, according to some of them, both were shooting, some of them identified the photo of Zahid as the person who was riding the bike and shooting. Going by the version of Nasir, Zahid was riding and Sadakat was the pillion rider. We only point out that there was nofactor as was sought to be demonstrated on behalf of the Appellant in order to state that the whole evidence of theshould be rejected and that on that ground, the confession cannot also be relied upon. We will have to bear in mind that the confession has unfurled the whole of the story of the Prosecution, while this part of the evidence is confined to the act of shooting by one of the conspirators and that of riding a bike by antherare convinced that the evidence on record in particular theaccount who had the benefit of looking at the person who was shooting at the spot in the close vicinity and who are able to note a glaring feature namely, the dress worn by the shooter and the driver and also identified the photograph of the driver when shown to them, there is no reason why their version should not be believed for the purpose of identifying the assailant at the place of occurrence. Therefore, a cumulative consideration of our above discussion makes it clear that the confession of Nasir as it stands was not in any way contradicted by any of the Prosecution Witnesses, namely,9, 15, 16, 18, 19 and 20.45. When we come toaccording to whom at Rippon Street Circular Road Crossing when he was looking at Maruti car driven by Nasir withtwo persons arrived in a motor cycle stating that their mission was accomplished and that the person wearing green colour jacket who was a pillion rider, got down from the bike carrying a cricket bat cover, got into the car and thereafter, the car and the bike left the spot. Here again, we are not impressed by the submission that going by his version it should be held that there was a serious contradiction as regards the shooter and the rider which will lead to a conclusion offactor to discard the2 was not anto the shooting occurrence; secondly as between the place of occurrence and Rippon Street Circular Road Crossing what really transpired as between the rider and shooter was not known to him. The significance ofevidence would mainly relate to the identification of Nasir who had parked the vehicle at the spot whereand his friend were taking tea and by virtue of the haphazard parking on the road, there was a traffic jam which necessitatedto approach Nasir and ask him to park the vehicle properly in order to clear the way for smooth movement of vehicles. It was in that aspect the version ofis true at that point of time a little later he also witnessed the two persons who arrived at the spot in a motor bike expressing their successful achievement of their operation and one of them who was the pillion rider got into the Maruti car after which both the vehicles left the spot. It can only be stated that even assuming for the sake of argument based on theversion some contradiction as regards the jacket colour having regard to the overwhelming evidence pointed out by us by making reference to9, 15, 16, 18, 19 and 20, evidence ofshould be ignored as a very insignificant one. Therefore, on this ground we are not convinced that anyfactor can be attributed to dislodge theWhatever arms and ammunition including therifles at the premises at Hazaribagh was found to be the weapons not used for shooting at the American Centre. Sadakat was an absconder, though, later he was apprehended and is now being tried. Therefore, any recovery made at the instance of Sadakat, who is now facing the trial, is not known. In such circumstances, thewhich was used for shooting at the American Centre cannot be a ground to disbelieve the statement contained in the confession of Nasir.48. As far as the contention made on behalf of the Appellant that nonproduction of the weapon used in the attack is fatal to the case of the Prosecution is concerned, the reliance placed upon by thelearned Additional SolicitorGeneral to the decision reported in Ram Singh vs. State of Rajasthan(2012) 12 SCC 339  would meet the said contention. In paragraphs 8 and 10, this Court has also held that thenonproduction of the weapon used in the attack isneither fatal to the Prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is alsohave referred to the requisition made byand the order passed by the Magistrate, 14 th Court Calcutta on 21.02.2002 by which he issued directions to lodge the Appellant Nasir in the Calcutta Presidency Correction Home on that day by segregating him from other accused and strangers for being produced on 22.02.2002 to give enough time for Appellant Nasir to rethink as to whether or not he should make thehave found that the Appellant was in the custody in connection with case No.53 dated 12.02.2002 for certain offences under the Arms Act while he was in judicial custody up till 22.02.2002 and, therefore, those materials disclose as to how Appellant Nasir happened to be in the custody of the police on 21.02.2002. Inasmuch as the said situation has been explained by valid documents, the said circumstance also does not in any way vitiate the confession made byquestion was with reference tonamely, the Magistrate who recorded the confession of the Appellant, who stated that he certified about the voluntariness of the statement and proved the statement before the Court marked asand what was the reaction of the Appellant. By saying that he was innocent and he did not know anything, we do not find anything to be implied that the whole of the confession has to be rejected based on the saidNo.563 was again related towherein it was put to Appellant Nasir that learned Chief Metropolitan Magistrate sent Nasir the case record of GR190 of 2002 for recording the confessional statement of Nasir and what he had toanswer was that on 21.02.2002, I was on police record, I was not sent to any Magistrate for recording confessional statement, though, the said answer contradicted the factum of the confessional statement recorded byBy merely accepting such a denial of the factum of production of the Appellant for the purpose of recording of confessional statement beforeit cannot be inferred that as between the version ofand the stand of the Appellant without anything more, the stand of the Appellant should be believed. In fact, for question No.564, it was explained to the Appellant thatgave necessary caution to him, assured him that if he declined to make any statement he will not be sent to police custody and that thereafter,sent him for jail custody for refreshment of his mind with a direction to the Superintendent, Presidency Correction Home to keep him in completeagain the Appellant came forward with only an answer that it was false and that he was innocent. We can understand if the Appellant had stated that nothing transpired on 21 st February, 2002 and 22 nd February, 2002 when the confession was recorded by the Magistrate