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

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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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