Case: Mohd.Arif @ Ashfaq Vs. State Of Nct Of Delhi

Sandhu [2005 (11) SCC 600 ]. The Court expressed its anguish in the following words. In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases. This question of attack on the army and the killing of three soldiers sent shock waves of indignation throughout the country. We have no doubt that the collective conscience of the society can be satisfied by capital punishment alone. We agree with the sentiments expressed in Navjot Singh Sandhus case (cited supra): The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. 84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed. Applying both the tests here we feel that this is a case where the conscience of the community would get shocked and it would definitely expect the death penalty for the appellant. Three persons who had nothing to do with the conspirators were killed in this case. Therefore, even Machhi Singhs case (cited supra) would aptly apply. Even in Bachan Singh v. State of Punjab [AIR 1980 SC 898 ] case, this Court referred to the penal statutes of States in USA framed after Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238) in general and Clause 2(a),(b), (c) and (d) of the Indian Penal Code (Amendment) Bill duly passed in 1978 by Rajya Sabha. Following aggravating circumstances were suggested by the Court in that case as aggravating circumstances:- (a) If the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member of public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under S.43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under S.37 and S.129 of the said Code. 85. The Court then observed that there could be no objection to the acceptance of these indicators. The Court, however, preferred not to fetter the judicial conscience by attempting to make an exhausting enumeration one way or the other. The circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army.

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

Explanation:
0[ds]18. From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear opinion that what took place on the said night on 22.12.2000 could not be just set aside as an internal brawl between the Army men themselves. The suggestion is absolutely wild. We find from the evidence that none of these witnesses who have been named above and who were the direct witnesses to the firing incident have been given this suggestion in their cross-examination that it was merely a brawl between the Army men. That apart, there are some circumstances which completely belie the theory of internal brawl. It would have to be remembered that a civilian Sentry Abdullah Thakur was the first to lose his life. There is nothing to suggest that the said Sentry Abdullah Thakur or the second casualty Rifleman (Barber) Uma Shankar, as also Naik Ashok Kumar had developed any enmity with anybody in the battalion. Further, if this was a brawl between the Army men, there was no reason why Abdullah Thakur was shot at and killed. We also do not find any reason to suspect the version of Major Manish Nagpal (PW-126) who himself claimed to have fired six rounds in the direction of Ring Road after taking a self loading rifle from Hawaldar Dalbir Singh (PW-134). In fact, there is no contradiction in his version and the version of Hawaldar Dalbir Singh (PW-134). The version of Major Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major D.K. Singh (PW-144) as also the evidence of Retd. Subedar D.N. Singh (PW-131). Even Major D.K. Singh (PW-144) had fired alongwith Major Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties of which were given by these two officers to Retd. Subedar D.N. Singh (PW-131). Ultimately, these empties were produced before the civil police officers and were taken into possession vide Exhibit PW-131/A. This version is also corroborated by Hawaldar Dalbir Singh (PW-134). We have carefully seen the evidence of all these witnesses mentioned above and found it trustworthy. It must be mentioned that at 9.23 pm, a call was made to the Police Control Room (PCR) by Major Manish Nagpal (PW- 126) suggesting that some persons had run away after firing inside the Red Fort and that they had gone towards the Ring Road. This was proved by the lady Constable Harvir Kaur, PCR (PW-77) and the concerned document is Exhibit PW-77/A which lends full support to the version and suggests that there was an incident of shooting in the Red Fort. DD Entry No. 19A dated 22.12.2000 made at Police Station Kotwali supports this version of lady Constable Harvir Kaur (PW-77), which suggests that she had flashed a wireless message about some persons having fled towards the Ring Road after resorting to firing inside the Red Fort. The evidence of Head Constable Virender Kumar (PW-15) is also there to prove the report in this regard vide Exhibit PW-15/B. It must be remembered that Police Control Room had received the calls of similar nature at 9.47 pm and two calls at 9.50 pm vide Exhibits PW-42/A, PW-95/A and PW-43/A, which support the version of the prosecution about the incident. The evidence of Constable Indu Bala, PCR (PW-43) about having received a telephone call from one Karan Mohan, the evidence of Col. A. Mohan (PW-51) that he was informed by the Commanding Officer, 7th Rajputana, Delhi that some civilians had entered Red Fort and the evidence of Constable Harvir Kaur, PCR (PW-77) that she received information from Major Manish Nagpal (PW-126) from telephone No. 3278234 about some persons having fled, as also the evidence of Head Constable Harbans, PCR (PW-95) that he had received a telephone call from Col. Mohan (PW-51) by telephone No. 5693227 stating that his Jawan posted at Red Fort was attacked, supports the version that there was incident of shoot out and it could not be merely dismissed as an internal brawl. This is apart from the evidence of other police witnesses like SHO Roop Lal (PW-234) who had reached the spot almost immediately after receiving the wireless message and who confirmed the presence of S.I. Rajinder Singh (PW-137) and Capt. S.P. Patwardhan (PW-189) on the spot. The senior officers of the police had also reached the spot and their evidence only confirms the dastardly incident of shoot out. There is enormous documentary evidence in shape of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW- 152/B, Exhibit PW-152/F and DD No. 22A, which confirms that such incident had happened. There is other piece of voluminous documentary evidence about seizure of blood sample (Exhibit PW-123/B), seizure from the spots (Exhibit PW-122/B), seizure of blood stained clothes (Exhibit PW-114/A), Exhibit PW-123/A, Exhibit PW-122/A, seizure of magazine, live cartridges and empties (Exhibit PW-189/C), Exhibit PW-115/A to 37 (37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope and cap (Exhibit PW-183/D), seizure of various articles from Red Fort (Exhibit PW-196/A) and Exhibits PW-230/A & 230/B etc. to suggest that the incident as, suggested by prosecution, did take place. It is also to be seen that the post mortem was conducted on the three bodies by Shri K. L. Sharma (PW-187). This witness has opined that all the deceased had bullet injuries by sophisticated fire arms and the shots were filed at them from a distant range. It is significant that the doctor was not cross- examined to the effect that the injury could have been caused by any weapon which was available with the Army and not with the AK 56 rifles. We are, therefore, not at all impressed by the argument that such incident was nothing but a white wash given by Army to hide the incident of internal brawl. We must reject the whole argument as too ambitious. We, therefore, hold that the incident of shoot out did take place in which three persons lost their livesThe argument is clearly incorrect. Merely because all these witnesses have admitted that there was search going on for the whole night, it does not mean that the incident did not take place. We have already pointed out that number of incriminating articles were found, the most important of the same being the empties of the bullets fired by the intruders. It is very significant that the prosecution has been able to connect the bullets with the arms seized by themThe report of the ballistic experts was proved as Exhibit PW-202/C. He duly proved and identified the cartridges which were test fired in the laboratory. He also proved and identified the rifles examined by him and the magazines along with the other live cartridges found in the same. There was hardly any cross-examination worth the name of this witness and, therefore, it is clearly established that the cartridges cases found inside the Red Fort were fired from the two rifles which were found outside the Red Fort. This witness had also examined 11 empties of the self-loading rifles used by the army men firing towards intruders and had clearly opined that those empties could not have been loaded in AK-56 rifles examined by him. We must note that one of these rifles i.e. Exhibit PW-62/1 was recovered on the discovery made by the appellant. We shall come to the merits of that discovery in the latter part of our judgment. However, at this stage, it is sufficient to note that the prosecution had thoroughly proved the nexus between the cartridge cases which were found inside the Red Fort and the incident. This nexus is extremely important as while the guns were found outside the Red Fort the fire empties were found inside. This clearly suggests that the incident of firing took place inside the Red Fort while guns were abandoned by the intruders outside the Red Fort. This witness also examined the contents of parcel No.34, namely, one rifle two magazines, live cartridge, knife and a Bandolier. This was again an assault rifle of 7.62 mm which we have already considered earlier. However, along with the same, as per the discovery memorandum a bandolier (Exhibit PW-202/3) was also found. The contents of the Bandolier were in parcel No.35. It contained four hand grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit PW-50/5 to 8. Very significantly four detonators had a slip affixed with the help of a tag and it was written in Urdu Khabardar. Grenade firing ke liye tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for firing. Pin should be taken out only when it is to be thrown). The existence of these bandoliers and the grenades and their recovery goes a long way to prove that the theory propounded by the defence that the incident never took place inside the Red Fort at the instance of the intruders and it was an internal affair of the Army men inside has to be rejected. In order to complete the narration, we must also refer to the evidence of Shri A. Dey who had examined the rifle found at Batla House during the encounter in which one Abu Shamal was killed. That recovery is not seriously disputed by Ms. JaiswalAll this supports the prosecution theory that the ghastly incident of firing did take place at the instance of some outsiders inside the Red FortWe have examined the evidence of all the three witnesses particularly in this behalf and we find the evidence to be thoroughly reliable. Ms. Jaiswal could not bring to our notice any material in the cross examination of these witnesses so as to render the evidence uncreditworthy. Some efforts were also made by relying on the evidence of S.K.Chadha (PW-125) that though he was a member of the team, he reached the spot from where the recovery was made at 10 a.m. on 23.12.2000. We fail to follow the significance of this admission. It is not as if all the officers must remain at one and the same place if they are the members of a particular investigation team. It may be that S. K. Chadha might have reached the spot at 10 Oclock but that does not mean recovery team consisting of other members did not effect recovery of the polythene bag containing currency and the slip. Ms. Jaiswal also urged that the premises were being searched thoroughly with the help of dog squad and the search light and that it was not possible that the search team would miss to notice the polythene bag and the currency and the slip lying in it. The argument is only mentioned for being rejected. What the investigating team would be looking for are not the polythene bag and the small paper but the weapons and the men who handled those weapons. A small transparent polythene bag could have easily been missed earlier or may not have attracted the attention of the investigating agency. We do not find anything to suspect the claim that the recovery was made at about 5-6 a.m. We must note that this was the longest night when the sun rise would also be late. Under such circumstances, in that dark night if the investigating team, after the microscopic search, took a few ours in recovering the small apparently insignificant polythene bag, it is not unnatural. They could not be expected to find polythene bag instantaneously or immediately. Much time must have been taken in first searching inside the Red Fort. Therefore, if the polythene bag was found at about 5-6 a.m. as per the claim of the prosecution agency, and not earlier, there is nothing uncreditworthy in the claim. We are, therefore, convinced that the polythene bag and the slip mentioning the cell phone number were actually found at the spot. Ms. Jaiswal tried to find some chinks in the armour by suggesting that S.I. Sanjay Kumars statement was contrary to the statement of S.I. Naresh Kumar (PW-217). We do not find any discrepancy between the two statements. Ms. Jaiswal also referred to the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that recovery was made by him at about 9 a.m. in the morning. What the witness meant was that it was he who came in the possession of the items at 9 a.m. There is nothing very significant in that assertion. The evidence of SHO Roop Lal (PW-234) was also referred to who claimed that after the polythene bag was produced before him which contained currency and paper slip, he sealed currency in the same polythene with the help of cloth and sealed under parcel given Exhibit No.24. There is nothing to dis- believe this claim after all SHO Roop Lal (PW-234) was the senior most investigating officer and there is nothing insignificant if S.I. Sanjay Kumar (PW-183) finding the polythene bag handed over the same to SHO Roop Lal (PW-234). A specific step has been taken by S.I. Sanjay Kumar (PW- 183) by getting the said bag photographed. We have seen the photographs also. It is true that no photograph was taken of the polythene bag containing currency note and the slip mentioning the telephone number. They appear to be in separate photographs and it is quite understandable as immediately after the finding of the polythene bag it must have been handled by S.I. Sanjay Kumar (PW-183). It is only after finding the slip and the telephone number mentioned thereon that by way of abundant caution the photographs were taken. Anxiety was to show the slip and the fact that there was a telephone number written on the slip. Ms. Jaiswal then argued that Hawa Singh (PW-228) had stated that he was told about the slip only in the evening though he joined the investigation at 10.30 a.m. We do not find anything substantial in this argument. Ms. Jaiswal further argued that there is contradiction in S.I. Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharmas (PW-229) statement as to who had recovered the currency and slip and that there was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183), S.K. Chadha (PW-125) and Inspector Mohan Chand Sharma (PW-229). Further, she tried to say that there was contradiction in the statement of S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW- 217) on the question as to whether currency and slip was taken inside the Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was called on the spot of recovery. She also raised objections about the photographs that they were not taken in `as is where is position. We have already applied our mind to this aspect and we are of the clear opinion that the objections raised by the defence are absolutely insignificant. What is material is the polythene bag being found. The police could not have created this polythene bag containing currency and slip with a number mentioned on it. There was no question of any false evidence being created at that point of time which was hardly a few hours after the shootout. It is true that the photographs of the polythene bag are not and could be on `as is where is basis. We have already given the reason thereof. We have no doubts in our mind and we confirm the finding of the trial Court and the appellate Court that the said polythene bag containing the currency notes and the slip on which the cell phone number was mentioned, was actually found on the spot which spot was abutting the backside wall of the Red Fort. It has to be borne in mind that a major incident of shootout had occurred wherein three lives were lost. The attack was on the Red Fort which has emotional and historical importance in the Indian minds. Large investigation team was busy investigating the whole affair and, therefore, the police could not have produced out of the thin air a small polythene bag containing currency and the slip. The spot where it was found is well described and was on the escape route of the intruders. That wall from inside the Red Fort has hardly any height though it is of about 15 to 20 feet from the ground on the other side. We have seen the proved photograph which suggests that from that spot one can easily land on the extended pipe and from that pipe to the small platform and from there to the ground. The polythene bag was found near this spot. Therefore, we accept the finding by the trial Court and the appellate Court that this polythene bag must have slipped from a person who scaled down to the ground. At the beginning of the debate it was made out as if the said wall was insurmountable and that nobody could have jumped from the height of about 50-60 feet. Further on the close look at the evidence, the photographs the hollowness of the claim of the defence was writ large23. There is one more significant circumstance to suggest that the polythene bag must have been found where it was claimed to have been found by the investigating agency i.e. the finding of AK-56 rifle from a nearby spot in the bushes. We will consider the merits of that discovery which was at the instance of the appellant in the latter part of our judgment. Suffice it to say at this stage that the polythene bag was found in the reasonable proximity of the spot from where AK-56 rifle was recoveredThe whole recovery is proved by the prosecution25. However, even before that the investigating agency started investigation about the cell number which was found written in the slip which was found in the morning at about 5-6 a.m. this cell number was to provide a ray of light to the investigating agency which had no clue whatsoever till then about the perpetrators of the crime. Ultimately, the investigating agency on the basis of that number being 9811278510 not only unearthed the conspiracy but also reached the main players including the present appellantTherefore, through a cell ID the location of the active mobile instrument can be approximatedSignificantly enough, the `Knowledge Plus computer centre remained closed for two days after the incident at Red Fort. The investigating agency came to know about the ownership of the `Knowledge Plus computer center and it was established that the accused Mohd. Arif @ Ashfaq who was a resident of Ghazipur, owned this centre. All this evidence by Inspector Mohan Chand Sharma (PW-229) went unchallenged.All this goes to suggest the definite connection between two IMEI numbers and the two mobile numbers named above. It is needless to mention that this analysis painstakingly made by Inspector Mohan Chand Sharma (PW-229) led the investigating team to zero on the accused appellant in the night of 25.12.2000We have absolutely no reason to dis-believe this evidence of apprehension of the accused by the police team which is also supported by documentary evidence. We have also no doubt that the apprehension of the accused was possible only because of the scientific investigation done by PW-229, Inspector MC SharmaIt is to be noted that the defence has not refuted the claim of the prosecution that telephone No. 2720223 which was in the name of appellants Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A, Ghazipur, where he was residing alongwith his wife Rehmana Yusuf Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1). It is also not the claim of the defence that telephone No. 6315904 was not installed at the computer centre `Knowledge Plus which the appellant was running alongwith other person Faizal Mohd. Khan (PW056). We, therefore, reject the argument of Ms. Jaiswal, learned counsel that on the basis of the chit, the investigating agency could not and did not reach the appellant on the night of 25.12.2000From this the learned Solicitor General argued and, in our opinion, rightly, that the appellant used to have a mobile phone with himWe have no reason to disbelieve the above three witnesses and, therefore, we hold that it was established by the prosecution that the appellant used to have a mobile phoneIn our opinion, this explanation is quite satisfactory to reject the argument raised by learned defence counsel. We have, therefore, no hesitation to hold that after the appellant was apprehended on the night of 25.12.2000, the investigating agency recovered not only the pistol, but a mobile phone bearing number 9811278510 which was with the appellantThere is considerable force in the submission made by the learned Solicitor General. The depositions of the prosecution witnesses mentioned above, in our opinion, leave no doubt whatsoever in our minds that mobile number 9811278510 was used in the instrument having IMEI No.449173405451240 immediately after the attackThis evidence is also corroborated by the evidence of Mohan Chand Sharma (PW-229) who located the two IMEI numbers mentioned above and he also confirmed that as per the information collected by him two calls were made to BBC offices one in Srinagar and one in Delhi. There is absolutely nothing to dis-believe this version and, therefore, it is clear that telephone No.9811278510 was used on the relevant date on 22.12.2000 for claiming the responsibility of the attack in Red Fort. When call was made the IMEI number was 449173405451240. This situation almost clinches the issueThe prosecution, therefore, is successful in establishing that the cell phone No.9811278510 was used for making the calls to Srinagar, BBC correspondent as also to the BBC correspondent in Delhi.We are not impressed by this argument firstly because there is nothing to show that this is an authenticated document and though Ms. Jaiswal claimed that this document was supplied to the accused by the prosecution, there is nothing to support such a claim. We, have, therefore, no hesitation in rejecting Exhibit PW-198/DA. Ms. Jaiswal then pointed out that in Exhibit PW-198/E, there were certain discrepanciesWe have gone through the whole cross examination very carefully but we do not find any reason to reject Exhibit PW-198/E. In our opinion, the insignificant irregularities brought in the cross examination would not call for rejection of the document and the evidence. We, therefore, accept that cell phone No.9811278510 was used at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the day when the attack took place at or about the same time on Red Fort wherein three innocent persons were killed. We also confirm the finding by the trial Court and the appellate Court that it was this mobile number which was found with the appellant when he was arrested. We have already held that the theory that this mobile number belonged to the prosecution and it was planted on the appellant is not only farfetched but totally un- believable. We have also explained the delay in recovery of this mobile number from the accused on the basis of its IMEI number. The other corroborating evidence connecting the two mobile numbers namely, 9811278510 and 9811242154 the IMEI Nos.44519944090240 and 449173405451240 their interconnection with phone No.011 3355751 of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and phone No.6315904 at computer centre is to be found in the evidence of Rajiv Pandit (PW-198), Inspector Mohan Chand Sharma (PW-229) and Inspector S.K.Sand (PW-230). The attempt of the investigating agency in analyzing the call details of these two numbers succeeded in establishing the connection of these two numbers with the number of BBC correspondent at Srinagar, the number of BBC correspondent at Delhi, the number at Farzana Farukhis residence and the number at the computer centre in the name of Danish Mohd. Khan. But for this careful and meticulous analysis which was of very high standards, it would not have been possible to apprehend the appellant and to de-code the intricate and complicated maze of the conspiracy. The timing of the calls made from this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi bearing No.011 3355751 are significant. It will be seen that the calls made to Srinagar were at 7.41 p.m., 7.42 p.m. and 9.27 p.m. while the calls made to BBC, Delhi were at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m. Again, while the calls to Srinagar were made from the front side of the Red Fort, the other calls were made from the back side of the Red Fort which establishes the presence of this mobile phone in close proximity to Red Fort when the calls were made. That is a very significant aspect38. All this evidence would leave no option for us except to accept the prosecutions contention that this cell phone No.9811278510 and the other phone No. 9811242154 as also the two IMEI numbers were extremely significant aspectsWe do not see any reason to dis-believe this witness. The calls to Pakistan from the concerned numbers is a very significant circumstance particularly because the appellant is admittedly a Pakistani national and was staying in India unauthorizedlyThere were some other documents proved by this witness. The cross examination of this witness is also lackluster. Therefore, this evidence is also extremely significant to support the role played by the appellant in the conspiracy43. Even at the cost of repetition, we may mention that immediately after the appellant was apprehended with a pistol and the live rounds he spilled the beans and gave information about his other associate Abu Shamal on the basis of which information the investigating team reached G-73, Batla House at about 3.15 a.m. This is deposed to by Inspector Mohan Chand Sharma. The house was locked. The investigating team lay there and waited and at about 5.10 a.m. a man resembling the description given by the appellant entered the house. The house was knocked at and the police disclosed their identity but the same was not opened and therefore, it had to be opened by the use of force. As per the evidence of Inspector Mohan Chand Sharma (PW-229) the firing started from inside and the same was returned eventually leading to the death of Abu Shamal @ Faisal. It is very significant to note that from this house, one AK-56 rifle, two magazines, 32 live and 67 fired cartridges were recovered. Two live hand grenades, bullet proof jackets and khakhi uniform were also recovered. It is significant that there is virtually no cross examination on this aspect. The evidence of Inspector Mohan Chand Sharma (PW-229) suggests that immediately after his apprehension, the appellant had owned up the involvement in the Red Fort attack incident and that he showed his residence to recover the arms and ammunitions and also disclosed about his associate. There is absolutely no cross examination about the incident at G-73, Batla House, Muradi Road, Okhla which place the police party was led by and discovered by the appellant. There is nothing to challenge the finding of the weapons & ammunition which were recovered at the instance of and as a result of information given by the appellant. All this has gone unchallenged in cross examination of Inspector Mohan Chand Sharma (PW-229). All this is supported by documentary evidence like DD entry bearing No.20 at Police Station New Friends Colony which mentioned about the firing going in Gali N.8, Batla House. Ram Singh, ASI (PW-92) proved this entry. Similarly, the receipt of information is entered as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m. Lastly, on the same day there is another entry DD No.22A at the same police station on the basis of information by Inspector Mohan Chand Sharma and FIR No.630 of 2000 was also registered. The other significant witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW- 92). We need not go into the contents of these entries excepting to suggest that the information given by the appellant about Abu Shamal is reflected therein. This brings us to a very important discovery statement made by the appellant as also to the seizure in pursuance of the said discovery statementWe have already explained in the earlier part of the judgment that this evidence could not be rejected on the mere plea that the mobile number was not found or was not immediately taken in possession by the investigating agency though they apprehended him on the night of 25.12.2000. We have also pointed out as to how it would have been disastrous to waste time in writing the Panchnama instead of immediately acting on the information given by the appellant. We, therefore, see nothing unnatural or unusual in the recovery of the mobile phone 9811278510. After all, the subsequent results which followed discovery statement by the appellant i.e. the knowledge about G-73, Batla House and the encounter of Abu Shamal and the finding of his fire weapon and the ammunition etc. do justify the quick action on the part of the investigating agency. We, therefore, cannot view with suspicion the formal arrest of the appellant and the recoveries effected thereafter or the seizure memos executedInsofar as the discovery of hand grenades at Jamia Milia Islamia University is concerned, we have no doubts about its genuineness and we accept the same. Merely because the appellant was in custody for 4-5 days and decided to disclose the information only on 01.01.2001, would not be a reason by itself to doubt the same or to have any suspicion on the same.If the evidence is found to be genuine and creditworthy, there is nothing wrong in accepting such a discovery statement. We do not see any reason to accept the argument that the police must have already known about the weapon. Considering the fact that this attack was on a dark night in the winters and the guns were thrown in the thick bushes then existing behind the Red Fort wall, it is quite possible that they were missed by the investigating agency. At any rate, the recovery of these guns from the spot near which the whole horrible drama took place and the appellant having knowledge about the same and further the proved use of these weapons and their fire-power, would persuade us to accept this discovery. Again, we cannot ignore the fact that the factum of discovery has been accepted by both the Courts below50. On his arrest on 25.12.2000, a ration card was recovered and seized from the very house at 308A, DDA flats, Ghazipur, Delhi. This card bore the number 258754. This was in the name of Ashfaq Ahmed, S/o Akram Khanat, R/o F-12/12, Batla House, Okhla, New Delhi. S.R. Raghav, retired Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest that this card was not issued by his department i.e. Circle 6, Okhla. Other witness is Ms. Anju Goel, UDC (PW-164), who deposed that the appellants ration card did not bear her signature. She also pointed out that the signature appearing in Exhibit PW-164/A (ration card) was not her signature. There is no effective cross-examination of both these witnesses. Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165) also referred to the aforementioned ration card proved by Ms. Anju Goel (PW-164) and asserted that the signature and the handwriting on the said card was not that of Ms. Anju Goel. Manohar Lal, UDC, Department of Education (PW-172) deposed that the appellants ration card was not issued from Circle 6 of the Ration office. Kushal Kumar (PW-174) deposed that he had made entry of ration card of the appellant in his register at his fair price shop. Ms. Sunita, LDC, Food & Supply Office, Circle 7 (PW-191) gave specimen of two rubber stamps and they did not tally with the rubber stamps on the ration card of the appellant. There is absolutely no cross-examination. There is a report proved by Yashpal Singh, Supply Inspector, Department of Food and Supply, Ghaziabad (PW-2), being Exhibit PW-2/A, to the effect that no ration card in the name of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office. Thus, it is obvious that the appellant got prepared a fake ration card, where name of his wife was mentioned as Bano and residence as 102, Kela Bhatta, Ghaziabad, where he had never resided. This ration card, significantly enough, was recovered from his house at 308A, DDA flats, Ghazipur, Delhi. Yashpal Singh (PW-2) and Rajbir Singh, Area Rationing Officer, Food and Civil Supply Department, Ghaziabad (PW-3) proved that the ration card was in the name of Azad Khalid (PW-1) and there was no ration card in the name of Ashfaq Ahmed S/o Akram Khanat. Azad Khalid Siddique, Correspondent, Sahara TV (PW-1) himself stepped into the witness box and deposed that there was one ration card in his name and other in his fathers name, which were issued at the address of 102, Kela Bhatti, Ghaziabad, which address was falsely given by the appellant because the appellant had never stayed at the said address. Thus, it is obvious that the ration card was fake and fabricated. The factual information on the ration card also does not tally at allIt is obvious that the said driving license was sought for on the basis of the ration card in the name of the appellant, which was obviously fake, as we have already shown above for the simple reason that the address given on this driving license was not the genuine address of the appellant, whereas it was in fact the address of Azad Khalid Siddique (PW-1) who had nothing to do with the appellant. In this driving license also, the address given by the appellant was B-17, Jangpura, Bhogal and it was issued by Sarai Kale Khan Authority. He obviously did not reside on this address which is clear from the evidence of Narayan Singh (PW-6). Thus, not only did the appellant got himself a fake and forged ration card, but on this basis, also got prepared a fake learning license, in which also, he gave a false residential address. All this was obviously with an idea to screen himself and to carry on his nefarious activities in the Indian cities. Nothing much has come in the cross- examinations of these witnesses. We have, therefore, no hesitation to hold that the appellant used a forged ration card and got a driving license giving a false addressWe have already referred to his assertion that the appellant had a mobile phone. In his cross-examination, nothing much has come about the contribution given by the appellant of Rs.1,70,000/-. He also asserted that it was the appellant who managed to take the premises of computer centre on lease. Shahvez Akhtar (PW-113) and Shahnawaz Ahmad (PW-163) have supported this57. All this would go to suggest that Nain Singh (PW-20) had a very vital part to play in his (appellant) being brought to India and being established thereWe have considered the evidence of all these witnesses, namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37), Yunus Khan (PW-4) and Ved Prakash (PW-173), but the same do not persuade us to accept the defence theory. It is obvious that the appellant was staying with Nain Singh (PW-20) for some time and then used to interact with the other tenants like Rashid Ali (PW-232) and Adam Malik (PW-31) and at that time, he claimed to be belonging to Jammu and claimed to be in the business of selling shawls. It is during that period alone that he got married to Rehmana Yusuf Farukhi barely a fortnight prior to the incident at the Red Fort. We, therefore, reject the argument of Ms. Kamini Jaiswal on this aspect. Therefore, it cannot be disputed that the appellant had some connection with Sher Zaman @ Shabbir (A-13) who was then established to be an Afghan national and who remained absconding till date.Therefore, on the basis of his driving license, when he got his HDFC Bank account opened, it is obvious that he had given false information, much less regarding his residential address which was also mentioned on his driving license and which was not trueWe may point out that there is absolutely no explanation by the appellant either by way of cross-examination of the witnesses or by way of his statement under Section 313 Cr.P.C. as to where all these amounts had come from and why did he deposit huge amounts in the three accounts mentioned above. Rs.29,50,000/- is not an ordinary sum. Also, there is no evidence that in his account in HDFC Bank, the appellant has Rs.6 lakhs. Further very sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in her account in the State Bank of IndiaHowever, that does not absolve the appellant completely since he had to explain as to where he was receiving money from for putting in the accounts of Qasid. This circumstance of the appellant in failing to explain the huge amount and its source would be of immense importance and would go a long way to show that the accused was receiving huge amounts from undisclosed sourcesWe, therefore, view this circumstance as an incriminating circumstance. We entirely agree with the High Court as well as the trial Court for the inferences drawn in respect of these deposits made by the accusedThis itself signifies that immediately after he was apprehended, the accused was in effective custody of the investigating agencyWe do not, therefore, find any thing wrong with the discovery even if it is assumed that the information was not recorded and hold that immediately after his apprehension, the accused did give the information which was known to him alone in pursuance of which a very material discovery was made.The learned counsel pointed out that if the sniffer dogs were taken there for searching, it would be impossible that the investigating agency would not find the AK-56 rifle which was lying quite near to the spot from where the chit and the currency notes were picked up by the investigating agency. In the first place, there is definite evidence on record that the sniffer dogs were not taken to the spot from where the polythene packet containing chit and currency notes was recovered. Inspector Hawa Singh (PW-228) is the witness who specifically spoke about the dog squad not having been taken to that spot. We are not impressed by this argument that the investigating agency had already seen the said rifle but had chosen to plant it against the appellant. Even the evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was not taken to the back of the Red Fort. SHO Roop Lal (PW-234) also stated that the Sunday Bazar was also not allowed to be held on 22.12.2000. We have no reason to discard this evidence. That apart, we do not see any reason why the investigating agency would plant the aforementioned AK- 56 rifle, bandolier and hand grenades therein, without any rhyme or reason. True, they were interested in the investigation, but that does not mean that they were out to falsely implicate the appellant. This is apart from the fact that police officers could not have procured a foreign made AK-56 rifle and the foreign made grenades on their own to be foisted against the appellant. No such cross-examination appears to have been done on those police officers. It is also difficult to accept the argument that anybody could have found the rifle which was lying in the thick bushes. There is evidence on record that the backside of the Red Fort had substantially thick bushes. Once the police officers had found the chit and the currency notes which gave them a definite direction to proceed in their investigation, it was not likely that the police officers would visit that spot again and that is what had happened.We are also of the opinion that this discovery was fully proved, in that, the appellant had given the information that it was Abu Shamal @ Faisal who had thrown that rifle in his bid to escape from the spot where the bloody drama was performed, resulting in death of three persons. Even earlier to this discovery, Abu Shamal @ Faisal was eliminated in encounter and he was found with substantial quantity of firearm and ammunition. We, therefore, see no reason to accept the defence contention that this discovery was a fake discoveryThere is nothing to support this version. Thus, the discovery statements attributed to the appellant and the material discovered in pursuance thereof would fully show the truth that the appellant was involved in the whole affair. The discovery of hand grenades behind the computer centre near Jamia Millia Islamia University was very significant. So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the Hawala dealer, as also the documents discovered therefrom, show the involvement of the appellant in the whole affair. In this behalf, we fully endorse the finding of the High Court. About these discoveries, one another complaint by the learned defence counsel was that no public witnesses were associated. In fact, there is ample evidence on record to suggest that though the investigating agency made the effort, nobody came forward. This was all the more so, particularly in case of the recovery of pistol from the appellant as also the discoveries vide Exhibit PW-148/E72. We have seen the evidence as also the so-called explanations given by the appellant in his statement under Section 313 Cr.P.C. We are of the clear opinion that the detailed statement which he gave at the end of the examination was a myth and remained totally unsubstantiated. We have also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and we are of the clear opinion that even that evidence has no legs to stand.It is really strange that inspite of this, the appellant should have got married to Rehmana. Very strangely, the lady completely denied that she even knew that the appellant was a resident of Pakistan. Much importance, therefore, cannot be given to this defence witness.74. We are in complete agreement with the findings regarding the incriminating circumstances as recorded by the High Court. On the basis of the aforementioned circumstances, the High Court came to the conclusion that the appellant was responsible for the incident of shooting inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted in the death of three soldiers of Army. It has also been held by the High Court that this was a result of well planned conspiracy between the appellant and some other militants including deceased Abu Shamal @ faizal who was killed in an encounter with the police at House No. G-73, Batla House, Muradi Road, Okhla, New Delhi. The High Court has also deduced that it was at the instance of the appellant that the police could reach that spot. The High Court has further come to the conclusion that it was in a systematic manner that the appellant came to India illegally and collected highly sophisticated arms and ammunition meant for mass destruction. The High Court further held that he chose to select the Red Fort for an assault alongwith his other associates, the Red Fort being a place of national importance for India. The High Court has also recorded a finding that the chosen attack was on the Army Camp which was stationed there to protect this monument of national importance. The High Court has, therefore, deduced that it was an act of waging war against the Government of India. It is further held that the associates, with whom the appellant had entered into conspiracy, had attacked the Army Camp, which suggests that there was a conspiracy to wage war against the Government of India, particularly, because in that attack, sophisticated arms like AK-47 and AK-56 rifles and hand grenades were used. The High Court also took note that this aspect regarding waging war was not even argued by the learned counsel appearing for defence. It is on this basis that the appellant was held guilty for the offences punishable under Sections 120-B, 121-A, 121, IPC, Section 120-B read with Section 302, IPC and Sections 468/471/474, IPC and also the offences under Sections 186/353/120-B, IPC. He was also held guilty for the offence under Section 14 of the Foreigners Act, since it was proved that the appellant, a foreigner, had entered the territory of India without obtaining the necessary permissions and clearance. Similarly, the appellant was also held guilty for the offences under the Arms Act as well as the Explosive Substances Act on account of his being found with a pistol and live cartridges76. There can be no dispute that in a case entirely dependent on the circumstantial evidence, the responsibility of the prosecution is more as compared to the case where the ocular testimony or the direct evidence, as the case may be, is available. The Court, before relying on the circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with the innocence of the accused possible nor is there any plausible explanation. The Court must, therefore, make up its mind about the inferences to be drawn from each proved circumstance and should also consider the cumulative effect thereof. In doing this, the Court has to satisfy its conscience that it is not proceeding on the imaginary inferences or its prejudices and that there could be no other inference possible excepting the guilt on the part of the accused. We respectfully agree with the principles drawn in the above mentioned cases and hold that the prosecution was successful in establishing the above mentioned circumstances against the appellant, individually, as well as, cumulatively. There indeed cannot be a universal test applicable commonly to all the situations for reaching an inference that the accused is guilty on the basis of the proved circumstances against him nor could there be any quantitative test made applicable. At times, there may be only a few circumstances available to reach a conclusion of the guilt on the part of the accused and at times, even if there are large numbers of circumstances proved, they may not be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be an essential factor in arriving at the verdict of guilt on the basis of the proved circumstances. In our opinion, the present case is such, as would pass all the tests so far devised by this Court in the realm of criminal jurisprudenceWe must immediately note that the criticism is entirely misplaced, both against the investigating agency and the Courts below. The investigation in this case was both scientific and fair investigation. This was one of the most difficult cases to be investigated as there could have been no clue available to the investigating agencyThe records of the trial and the appellate Courts truly justify these inferences. We, therefore, reject this argument of the learned defence counselIt may be that Rehmana Yusuf Farukhi also did not have any idea and, therefore, was granted the benefit of doubt; however, that does not, in any manner, dilute the nefarious plans on the part of the appellant. He collected highly sophisticated arms and ammunition and some arms were proved to have been used in the attack on the Red Fort. The attack on the soldiers staying in the Army Camp at Red Fort was nothing but a war waged against the Government of India. It was clear that there were more than one person. Therefore, it was nothing but a well planned conspiracy, in which apart from the appellant, some others were also involvedIt is for these reasons that this place has become a place of honour for Indians. No one can ever forget the glorious moments when the Indians irrespective of their religions fought their first war of Independence and shed their blood. It was, therefore, but natural for the foreigner enemies to plan an attack on the army specially kept to guard this great monument. This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self respect of this great nation. It was a well thought out insult offered to question the sovereignty of this great nation by foreign nationals. Therefore, this case becomes a rarest of rare case. This was nothing but an undeclared war by some foreign mercenaries like the present appellant and his other partner in conspiracy Abu Shamal and some others who either got killed or escaped. In conspiring to bring about such kind of attack and then carrying out their nefarious activities in systematic manner to make an attack possible was nothing but an attempt to question the sovereignty of India. Therefore, even without any reference to any other case law, we held this case to be the rarest of rare case. Similar sentiment was expressed by this Court in State v. Navjot Singh Sandhu [2005 (11) SCC 600 ].84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous proportionThe circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army