In this context, we may refer to the authority in Vikram
Singh and others v. State of Punjab24, wherein while
interpreting Section 27 of the Evidence Act, the Court
opined that a bare reading of the provision would reveal
that a “person must be accused of any offence” and that
he must be “in the custody of a police officer” and it is not
essential that such an accused must be under formal
arrest.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1155 OF 2014
(Arising out of S.L.P. (Crl.) 4419 of 2009)
Chandra Prakash … Appellant
Versus
State of Rajasthan …Respondent
Dated;9-5 2014
Citation; 2014(3) crimes SC 59
Dipak Misra, J.
On 26th January, 1996, a day of celebration and
conscientious remembrance of the “Red Letter Day” in the
history of India because 26th January is the date in 1950,
when our organic, inclusive, humane and compassionate
Constitution came into existence being given by the people
of this country to themselves and the nation has been
obliged to jubilate remembering the said important day in
our national history, for it chartered the path of many an
emancipation and conferred on the people the highly
cherished fundamental rights; about 8.30 a.m., there was a
blast of explosive substances between Gate No.12 and Gate
No. 13, towards the southern and eastern side of Sawai Man
Singh Stadium Jaipur, where the State level function on
Republic Day was going to be celebrated. Soon after the
blast, Prahlad Singh, the Station House Officer, Police Station
lodged an FIR about 9.30 a.m. which was registered as FIR
Page 3
3
No. 39/1996. As per the FIR, when the blast took place, the
people who had assembled were asked to leave the stadium
so that there could be a check. During the check, it was
found that due to the blast, a big size crater had come into
existence at the scene of explosion. That apart, by the said
explosion, the sand hopped upward and fell on the places
meant for sitting in the stadium and also on the roof. The
glasses of the windows of the pavilion near the explosion
had broken into pieces. At the time when the explosion had
occurred, only police personnel but no civilians were present
in that part of the stadium. The public at large, which was
present inside the Stadium, was informed to leave the
Stadium so that the check and security could be carried out.
Due to the sound caused by the explosion, one Ramgopal
Choudhary, an employee of the Public Works Department,
who was passing nearby, had met with an injury on his ear
for which he was immediately sent to the hospital. On the
basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention
of Damage to Public Property Act, 1984 and under Section 3
Page 4
4
of the Explosive Substances Act, 1908 (for short “the 1908
Act”) and also under Section 9B of the Explosive Act, 1884
(for brevity “the 1884 Act”) were registered and the
investigation commenced. Later on, the investigation of the
case was transferred to C.I.D(C.B.).
2. During the investigation, an anonymous letter in Urdu
language dated 1st June, 1997 was sent to the
Superintendent of Police, wherein some information was
given which was alleged to have been gathered by the
senders who described themselves as well wishers while
they were in custody in the Central Jail, Jaipur, in respect
of the bomb-blast that took place on 26th January, 1996 at
the SMS Stadium, Jaipur. In that letter, the names of
some persons, i.e., Raies Beg of Agra, Dr. Abdul Hamid of
Firozabad and Pappu Puncturewala were mentioned. It
was also mentioned that the ISI of Pakistan was behind
the bomb-blast. On the basis of the said information, the
investigating officer arrested five persons, namely, Abdul
Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
Page 5
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3. During the investigation, the investigating agency
recovered a live time bomb from SMS Stadium and
explosive items were recovered from Roopwas, District
Bharatpur. In the course of the investigation, accused
Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”)
before the Chief Judicial Magistrate on 14.8.1997 who, by
order dated 30.8.1997, authorized the Additional Chief
Judicial Magistrate No. 6 to record the statement of the
said accused under Section 164 of the Code and
thereafter, the Chief Judicial Magistrate, by a reasoned
order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the
charge-sheet against the arrested accused persons,
namely, Chandra Prakash, Abdul Mateen, Raies Beg and
Abdul Hamid.
4. All the accused persons abjured guilt, pleaded false
implication and, accordingly, faced trial.
Page 6
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5. The learned trial Judge framed different charges against
the four accused persons and we think that it would be
apt to refer to the charges framed against each of them.
As far as Chandra Prakash is concerned, the charges that
were framed against him were under Section 9B of the
1884 Act and under Sections 3, 4, 5 read with Section 6 of
the 1908 Act. As far as Abdul Mateen is concerned, he
was charged with the offences under Section 14 of the
Foreigners Act, 1946, under Sections 3, 4 and 5 of the
1908 Act, under Section 9B of the 1884 Act, under Section
3 of the Prevention of Damages to Public Properties Act
and under Sections 307, 118, 435 and 456 IPC. As far as
Raies Beg and Abdul Hamid are concerned, they were
faced with similar charges, namely, under Section 9B of
the 1884 Act, under Sections 3, 4 and 5 read with Section
6 of the 1908 Act and under Sections 307/120B, 118/120B
and 435/120B IPC.
6. To bring home the charges against the accused persons,
the prosecution examined as many as 78 witnesses and
Page 7
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brought on record exhibits P-1 to P-296. In defence, no
witness was examined on behalf of any of the accused
persons. However, documentary evidence was produced
by them, i.e., exhibits D-1 to D-5. We shall refer to the
relevant parts of the testimonies of the vital witnesses
and advert to the documents which have been stressed
and emphasized upon by the prosecution at a later stage.
7. The accused persons in their statements under Section
313 of the Code took separate plea and hence, it is
obligatory on our part to record their pleas individually.
Abdul Mateen admitted that he is a Pakistani and he had
remained as a Pakistani always; that he had never come
to India before his arrest; that he did not know any person
in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and
that he had never given any information to the police and
no recovery was made by the police at his instance and
he had never identified any place. The plea of Abdul
Hamid was that he never gave any information to the
Page 8
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police during the investigation of the case and he did not
furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated.
Raies Beg took the plea that due to communal riots he
had been falsely booked in the crime. Accused Chandra
Prakash, apart from false implication, denied any
relationship with Pappu @ Saleem, PW-1, and further
stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took
the stand that he had not taken any room on rent in Krishi
Upaz Mandi or any shop near the power house on rent and
disputed the recovery from any shop. The trial court,
appreciating the oral and documentary evidence on
record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and
sentenced all of them individually in respect of all the
specific charges framed against them. The offence for
which each of them had faced trial has been already
mentioned hereinabove. All the accused had been
sentenced separately by the learned trial Judge.
Page 9
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8. Accused Abdul Mateen was sentenced to undergo five
years rigorous imprisonment and a fine of Rs.10,000/-, in
default of payment of fine to further undergo one year’s
simple imprisonment under Section 14 of the Foreigners
Act; ten years rigorous imprisonment and a fine of
Rs.20,000, in default to further undergo two years’ simple
imprisonment under Section 4 of the Prevention of
Damages to Public Property Act; three years rigorous
imprisonment and a fine of Rs.3,000/-, in default to further
undergo six months’ simple imprisonment under Section
456 IPC; to undergo ten years rigorous imprisonment and
a fine of Rs.10,000/-, in default to further undergo two
years’ simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and
a fine of Rs.7,000/-, in default to further undergo one and
half years’ simple imprisonment under Section 435 read
with Section 120B IPC; five years rigorous imprisonment
and a fine of Rs.5,000/-, in default to further undergo one
year’s simple imprisonment under Section 118 read with
Page 10
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Section 120B IPC; two years rigorous imprisonment and a
fine of Rs.2,000/-, in default to further undergo three
months’ simple imprisonment under Section 9B of the
1884 Act; imprisonment for life and a fine of Rs.20,000/- in
default to further undergo three years’ simple
imprisonment under Section 3 of the 1908 Act; seven
years rigorous imprisonment and a fine of Rs.7,000/-, in
default to further undergo one and half years’ simple
imprisonment under Section 4 of the 1908 Act; and five
years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment
under Section 5 of the 1908 Act.
9. Accused Chandra Prakash was sentenced to undergo two
years rigorous imprisonment and a fine of Rs.2,000/-, in
default to further undergo three months’ simple
imprisonment under Section 9B of the 1884 Act; ten years
rigorous imprisonment and a fine of Rs.10,000/-, in default
to further undergo two years’ simple imprisonment under
Section 3 read with Section 6 of the 1908 Act; seven years
Page 11
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rigorous imprisonment and a fine of Rs.7,000/-, in default
to further undergo one and half years’ simple
imprisonment under Section 4 read with Section 6 of the
1908 Act; and five years rigorous imprisonment and a fine
of Rs.5,000/-, in default to further undergo one year’s
simple imprisonment under Section 5 read with Section 6
of the 1908 Act.
10. Accused Abdul Hamid and Raies Beg were sentenced to
undergo two years rigorous imprisonment and a fine of
Rs.2,000/-, in default to further undergo three months’
simple imprisonment; ten years rigorous imprisonment
and a fine of Rs.10,000/-, in default to further undergo two
years simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and
a fine of Rs.7,000/-, in default to further undergo one and
half years’ simple imprisonment under Section 435 read
with Section 120B IPC; five years rigorous imprisonment
and a fine of Rs.5,000/-, in default to further undergo one
year’s simple imprisonment under Section 118 read with
Page 12
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Section 120B IPC; ten years rigorous imprisonment and a
fine of Rs.10,000/-, in default to further undergo two
years’ simple imprisonment under Section 3 read with
Section 6 of the 1908 Act; seven years rigorous
imprisonment and a fine of Rs.7,000/-, in default to further
undergo one and half years’ simple imprisonment under
Section 4 read with Section 6 of the 1908 Act; and five
years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment
under Section 5 read with Section 6 of the 1908 Act.
11. At this juncture, we think it appropriate to state the
findings recorded by the learned trial Judge against each
of the accused. As far as Abdul Mateen is concerned, the
trial court held that it was clear from the evidence of GPS
Wirk, PW-69, Assistant Commander, BSF, that Mhd.
Ashlam Baba was the financial head of a terrorist
organization by the name of “Harkat-ul-Ansar”, and during
the course of investigation, the accused Abdul Mateen
was arrested from Srinagar and no passport or visa was
Page 13
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found in his possession. The offence punishable under
Section 14 of the Foreigners Act which had been levelled
against him was established beyond reasonable doubt.
The live time bomb was duly recovered and accused
Abdul Mateen had exclusive knowledge and it was he who
planted the time bomb at that place and it was proven
from the testimonies of the witnesses. From the evidence
of the approver, Pappu, and the information under Section
27 of the Evidence Act, it could be concluded that prior to
26.1.1996, two time bombs were implanted by accused
Abdul Mateen. It was clear from the testimonies of Jai
Narayan, PW-6, and Gopal Saini, PW-7, that Abdul Mateen
had led to the recovery of the bomb and the charge of
crime punishable under Section 9B of the Explosive Act
levelled against the accused Abdul Mateen has been
proved beyond reasonable doubt.
12. In respect of Raies Beg and Abdul Hamid, the trial court
held that Abdul Hamid had been visiting accused Chandra
Prakash at Roopbas quite frequently and both the accused
Page 14
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persons had helped accused Abdul Mateen in the
commission of the offence. They used to meet at the
Madarsa of village Farah and the conspiracy was hatched.
The learned trial Judge came to hold that the involvement
of the said accused persons in the commission of the
crime was reflectible from the evidence of number of
witnesses and the prosecution had established their role
beyond any shadow of doubt.
13. Pertaining to Chandra Prakash, the Court held that
explosive substances including gelatin and dynamite in
huge quantity were recovered from his possession on
1.8.1997. Scanning the evidence, it recorded that the
dynamite was used in both the bombs. He further opined
that Pappu @ Saleem, PW-1, was an associate and
colleague of accused Abdul Mateen and prior to the
incident, the explosive substance was brought from
Chandra Prakash in village Farah, where Pappu @ Saleem
used to live with him. That apart, Chandra Prakash was
identified by Pappu and the key of the godown was with
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the accused and he opened the lock of the said godown
from which 28 kattas of ammonium nitrate were
recovered. It was also clear from the evidence of
Chetandass Rawatani, PW-34, that the goods which were
recovered from the accused were utilized for the
preparation of the explosive substance.
14. On the basis of the aforesaid findings and conclusions,
the learned trial Judge convicted the accused persons and
sentenced them as has been stated hereinbefore.
15. Being grieved by the aforesaid conviction and sentence,
the accused persons preferred separate appeals before
the High Court being D.B. Criminal (Jail) Appeal No. 318 of
2000, D.B. Criminal Appeal Nos. 189 of 2000, 258 of 2000
and 369 of 2000. The State filed application for grant of
leave (D.B. Criminal Leave to Appeal No. 26 of 2008) with
an application for condonation of delay of seven years and
nine months which was taken up along with the appeals
preferred by the accused persons and the said appeal was
dismissed on the ground of delay. However, it may be
Page 16
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stated here that the High Court also addressed to the
merits of the case of the State which pertained to
enhancement of sentence and did not find any substance
in the same. As regards the appeals preferred by the
accused persons, the appellate court did not perceive any
merit and, resultantly, dismissed the same by way of
judgment and order dated 3.2.2009. Hence, the assail is
to the judgment of conviction and order of sentence by
the applications of special leave petitions.
16. Leave granted in all the special leave petitions.
17. As all the appeals relate to defensibility of common
judgment passed by the High Court in respect of all the
accused-appellants, they are disposed of by a singular
judgment.
18. Mr. Sushil K. Jain, learned senior counsel for the
appellants, criticizing the judgment of the trial court and
that of the High Court, has raised the following
contentions: -
Page 17
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(a) The learned trial Judge as well as the High Court
committed grave error by coming to hold that sanction
given under Section 7 of the 1908 Act cannot be found
fault with, though the District Magistrate, Jaipur was not
examined as a witness to prove the order of sanction.
(b) The recovery made from the appellant, Chandra
Prakash, at the instance of information given by Pappu
would not be admissible in evidence because at the time
of giving information, Pappu was an accused and had not
been treated as an approver which was done later on by
virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he
was not aware about the contents of the box that he was
asked to carry by the other accused persons.
(c) The alleged recovery of ammonium nitrate from the
custody of accused, Chandra Prakash, either at the
instance of Pappu @ Saleem, PW-1, or by the accusedappellant
cannot be accepted because Pappu @ Saleem,
PW-1 is an accomplice and in absence of any
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corroboration, his evidence has to be thrown overboard
and further the case of prosecution that at the instance of
the accused articles were discovered is to be rejected
inasmuch as Section 27 of the Evidence Act, 1872 could
not have been made applicable to the facts of the present
case, for Chandra Prakash had not been arrested by the
time the alleged discovery took place.
(d) Assuming the ammonium nitrate was recovered from
the custody of Chandra Prakash, the same would not
make out any offence punishable under any of the
provisions of the 1908 Act or the 1884 Act, for the simple
reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the
1908 Act as well as Section 9B of the 1884 Act are
stretched, it would not bring in its sweep the simple act of
sale by Chandra Prakash without any intention or
knowledge about its use.
(e) No independent charges were framed against the
accused-appellant under Sections 3, 4 and 5 of the 1908
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Act but along with Section 6 of the 1908 Act and,
therefore, conviction under the said provision is absolutely
fallacious.
19. Mr. Balaji Srinivasan, learned counsel appearing for the
appellants, Abdul Hamid and Raies Beg, submitted as
under:-
(A) The prosecution has failed to prove the nexus of the
accused-appellants with the co-accused Abdul Mateen
in the crime and nothing has been brought on record to
establish the allegations. The only evidence that has
been recorded is that Abdul Hamid used to meet
Abdul Mateen frequently at village Farah.
(B) There is no recovery of explosive substance or any
incriminating materials from the appellant’s house and in
the absence of any recovery, the appellant cannot be
roped in the crime.
(C) The allegation of the prosecution with regard to the
relation of the appellant with Abdul Mateen does not have
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any substance and, in any case, there is no proof to
establish the same.
(D) The bomb blast at SMS Stadium, Jaipur took place on
26.01.1996 and the accused was arrested on 8.06.1997
and identification parade was conducted on 25.06.1997
about one and half years after the incident. This aspect
vitiates the identification parade and creates a dent in the
case of the prosecution for which the appellants should be
given the benefit of doubt.
20. Mr. Atul Kumar, learned counsel appearing for the
appellant Abdul Mateen, in addition to the contentions
raised by Mr. Jain and Mr. Balaji, has contended that no
consent has been taken under Section 7 of the 1908 Act
from the Central Government and hence, the entire trial is
vitiated.
21. Dr. Manish Singhvi, learned Additional Advocate
General appearing for the State of Rajasthan, supporting
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21
the judgment of the High Court, has submitted as follows:
-
(i) The sanction given by the District Magistrate, on a
perusal, would show application of mind and, by no
stretch of imagination, it can be regarded as invalid in
law.
(ii) The recovery at the instance of an accused under
Section 27 of the Indian Evidence Act is admissible in
evidence and the information given by Pappu, PW-1,
which led to the recovery of huge quantity of explosives
would per se be admissible in evidence and this
evidence is not to be treated as inadmissible merely
because the accused at the relevant point of time had
subsequently become the approver.
(iii) The recovery of explosives by the accused, Chandra
Prakash, by opening the keys of the godown would be a
relevant fact and admissible under Section 8 of the
Evidence Act, irrespective of the fact that the conduct
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22
falls within the purview of Section 27 of the Evidence
Act.
(iv) The recovery of the explosive substance has been
made by the police vide memo Ex. P-42 during the
search and seizure operations. Chetan Das Rawatani,
PW-34, Explosive Expert, has stated that the articles
recovered in Ex. P-42 were explosive articles and the
same has also been proved by the FSL Report, Ex. P-
234.
(v) The evidence of the approver Pappu, PW-1, is
admissible as substantive evidence u/s 133 of the
Evidence Act. In the evidence of the approver, it has
been mentioned that the accused, Chandra Prakash,
was engaged in the supply of materials for solicitation
of money for the commission of offence under the 1908
Act. Possession of huge quantity of ammonium nitrate
without any plausible explanation by the accused,
Chandra Prakash, corroborates the evidence of the
approver.
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22. First, we shall deal with the issue of sanction. Section 7
of the 1908 Act reads as follows: -
“7. Restriction on trial of offences. – No Court
shall proceed to the trial of any person for an
offence against this Act except with the consent of
the District Magistrate.”
23. The learned counsel for Abdul Mateen has submitted
that no consent has been granted by the Central
Government. In this context, we may refer to the decision
in State of M.P. v. Bhupendra Singh1. In the said case,
the consent for the prosecution was granted by the
Additional District Magistrate by notification dated
24.4.1995 issued by the State Government. The High
Court has quashed the proceeding as there was no
sanction. This Court concurred with the said view on the
ground that it was within the domain of the Central
Government to delegate the authority and, in fact, the
Central Government vide notification dated 2.12.1978 has
entrusted to the District Magistrates in the State of
Madhya Pradesh its consent under Section 7 of the 1908
1 (2000) 1 SCC 555
Page 24
24
Act. Thus, there could be delegation by the Central
Government to the District Magistrates.
24. It is relevant to note here that the consent was given by
the concerned District Magistrate as Ext. P-277/278. His
authority was not questioned. What was urged before the
Court was that there had been no application of mind
inasmuch as the relevant materials were not placed
before him while according sanction. When such a point
was not raised, the consequences have to be different. In
this regard, reference to a two-Judge Bench decision in
Erram Santosh Reddy and others v. State of Andhra
Pradesh2 would be appropriate. In the said case, the
Court has observed as follows: -
“7. The last submission is that no sanction was
obtained from the Central Government as laid
down under Section 7 of the Explosive Substances
Act for prosecuting the appellants for the offences
under the Explosive Substances Act. From the
judgment we do not find that any such objection
was taken. In any event from the record we find
that the Collector granted permission and this
must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
2 (1991) 3 SCC 206
Page 25
25
25. From the aforesaid, we come to the conclusion that the
District Magistrate had the authority to give consent for
the prosecution.
26. The next facet of the challenge pertaining to sanction is
that the sanctioning authority had not perused the
relevant materials. The learned trial Judge, upon scrutiny
of Ext. P-277/278, has expressed the opinion that the
approval had been granted after perusal of the materials
on record. The High Court has observed that the
consent/sanction order is a self-speaking and detailed
one. It has also been held that all the facts have been
taken into consideration by the District Magistrate and the
entire police diary was made available to him at the time
of grant of sanction/approval. With regard to the authority
of consent as postulated in the 1908 Act, reference to
certain authorities would be fruitful. In State of Tamil
Nadu v. Sivarasan alias Raghu alias Sivarasa and
others3, the Court, while dealing with the effect of Section
7 of the 1908 Act, has observed as follows: -
3 (1997) 1 SCC 682
Page 26
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“Section 7 does not require a sanction but only
consent for prosecuting a person for an offence
under the Explosive Substances Act. The object of
using the word “consent” instead of “sanction” in
Section 7 is to have a purely subjective
appreciation of the matter before giving the
necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the
Collector for prosecuting the accused for the
offence punishable under the Explosive
Substances Act it was necessary for the
investigating officer to submit the statements of
witnesses also, who had deposed about the
movements of the accused and their activity of
manufacturing bombs and grenades. We,
therefore, hold that the consent given by the
Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted
by the District Magistrate in the obtaining factual matrix
cannot be treated as vitiated.
29. The third aspect of challenge to the sanction is that the
District Magistrate has not been examined as a witness to
prove the order of sanction. On a perusal of the
document, we find that the same has been proven by the
competent person and the document has been marked as
Ext. P-277/278. We are of the considered opinion that the
Page 27
27
examination of the District Magistrate to prove his consent
is really not necessary.
30. In view of the aforesaid analysis, the submission
relating to the invalidity of the consent, as stipulated in
Section 7 of the 1908 Act, does not commend us and,
accordingly, the same stands rejected.
31. The next issue, to which we should advert to, pertains
to the delay in holding the test identification parade. The
submission of Mr. Balaji Srinivasan, learned counsel
appearing for accused Abdul Hamid and Raies Beg, is that
there has been enormous delay in conducting the test
identification parade in respect of accused Abdul Hamid
and Raies Beg. There is no dispute that both of them
were arrested on 8.6.1997 and the test identification
parade was held on 25.6.1997. Thus, it is evident that
they were arrested long after the occurrence but the test
identification parade was held within a period of three
weeks from the date of arrest. As the analysis of the trial
court shows, they could not have been arrested as the
Page 28
28
materials could not be collected against them and things
got changed at a later stage. In this regard, we may refer
with profit to the decision in Ramanand Ramnath v.
State of M.P.4, wherein identification parade was held
within a period of one month from the date of arrest. This
Court observed that there was no unusual delay in holding
the test identification parade.
32. That apart, the witnesses, namely Prem Prakash Gupta,
PW-78, and Mohit Jain, PW-30, have identified them in the
Court. In State of Maharashtra v. Suresh5, it has been
held as follows: -
“We remind ourselves that identification parades
are not primarily meant for the court. They are
meant for investigation purposes. The object of
conducting a test identification parade is twofold.
First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in
connection with the commission of the crime.
Second is to satisfy the investigating authorities
that the suspect is the real person whom the
witnesses had seen in connection with the said
occurrence.”
4 (1996) 8 SCC 514
5 (2000) 1 SCC 471
Page 29
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33. The said legal position has been reiterated in Anil
Kumar v. State of U.P.6 Recently, in Munna Kumar
Upadhyay alias Munna Upadhyaya v. State of
Andhra Pradesh through Public Prosecutor,
Hyderabad, Andhra Pradesh7, a two-Judge Bench has
observed thus: -
“66. There was some delay in holding the
identification parade. But the delay per se cannot
be fatal to the validity of holding an identification
parade, in all cases, without exception. The
purpose of the identification parade is to provide
corroborative evidence and is more confirmatory
in its nature. No other infirmity has been pointed
out by the learned counsel appearing for the
appellant, in the holding of the identification
parade. The identification parade was held in
accordance with law and the witnesses had
identified the accused from amongst a number of
persons who had joined the identification parade.”
34. In view of the aforesaid, the submission that there has
been delay in holding the test identification parade does
not really affect the case of the prosecution. It is also
noteworthy that the witnesses had identified the accused
persons in court and nothing has been elicited in the
6 (2003) 3 SCC 569
7 (2012) 6 SCC 174
Page 30
30
cross-examination even to create a doubt. Thus, we repel
the submission advanced by the learned counsel for
accused Abdul Hamid and Raies Beg.
35. The next facet to be addressed is whether the
evidentiary value of the testimony of approver Pappu, PW-
1, is required to be considered. Learned counsel for the
State has drawn our attention to Section 133 and
illustration (b) to Section 114 of the Indian Evidence Act,
1872. They read as under: -
“133. Accomplice .- An accomplice shall be a
competent witness against an accused person;
and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an
accomplice."
Illustration (b) to Section 114
“(b) The Court may presume that an accomplice is
unworthy of credit, unless he is corroborated in
material particulars.”
36. The aforesaid two provisions came to be considered in
Bhiva Doulu Patil v. State of Maharashtra8 wherein
the Court held as follows: -
8 AIR 1963 SC 599
Page 31
31
“The combined effect of Sections 133 and
Illustration (b) to Section 114, may be stated as
follows:
According to the former, which is a Rule of
law, an accomplice is competent to give evidence
and according to the latter, which is a Rule of
practice it is almost always unsafe to convict upon
his testimony alone. Therefore, though the
conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the
courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration
in material particulars.”
37. In Mohd. Husain Umar Kochra etc. v. K.S.
Dalipsinghji and another etc.9, the Court observed
thus: -
“... The combined effect of Sections 133 and 114,
Illustration (b) is that though a conviction based
upon accomplice evidence is legal, the Court will
not accept such evidence unless it is corroborated
in material particulars. The corroboration must
connect the accused with the crime. It may be
direct or circumstantial. It is not necessary that
the corroboration should confirm all the
circumstances of the crime. It is sufficient if the
corroboration is in material particulars. The
corroboration must be from an independent
source. One accomplice cannot corroborate
another.”
9 (1969) 3 SCC 429
Page 32
32
38. Having stated the legal position with regard to the
statutory provisions, presently we shall proceed to
consider the requisite tests to be applied to accept the
credibility of the testimony of the approver. At this
juncture, we may sit in a time machine and quote a
passage from Sarwan Singh S/o Rattan Singh v. State
of Punjab10 wherein it has been held as follows: -
“...An accomplice is undoubtedly a competent
witness under the Indian Evidence Act. There can
be, however, no doubt that the very fact that he
has participated in the commission of the offence
introduces a serious stain in his evidence and
Courts are naturally reluctant to act on such
tainted evidence unless it is corroborated in
material particulars by other independent
evidence. It would not be right to expect that such
independent corroboration should cover the whole
of the prosecution story or even all the material
particulars. If such a view is adopted it would
render the evidence of the accomplice wholly
superfluous. On the other hand, it would not be
safe to act upon such evidence merely because it
is corroborated in minor particulars or incidental
details because, in such a case, corroboration does
not afford the necessary assurance that the main
story disclosed by the approver can be reasonably
and safely accepted as true. But it must never be
forgotten that before the court reaches the stage
of considering the question of corroboration and
its adequacy or otherwise, the first initial and
10 AIR 1957 SC 637
Page 33
33
essential question to consider is whether even as
an accomplice the approver is a reliable witness. If
the answer to this question is against the approver
then there is an end of the matter, and no
question as to whether his evidence is
corroborated or not falls to be considered. In other
words, the appreciation of an approver's evidence
has to satisfy a double test. His evidence must
show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is
satisfied the second test which still remains to be
applied is that the approver's evidence must
receive sufficient corroboration. This test is special
to the cases of weak or tainted evidence like that
of the approver.
8...Every person who is a competent witness is not
a reliable witness and the test of reliability has to
be satisfied by an approver all the more before the
question of corroboration of his evidence is
considered by criminal courts”.
39.In Ravinder Singh v. State of Haryana11, this Court has
observed that: -
“An approver is a most unworthy friend, if at all,
and he, having bargained for his immunity, must
prove his worthiness for credibility in court. This
test is fulfilled, firstly, if the story he relates
involves him in the crime and appears intrinsically
to be a natural and probable catalogue of events
that had taken place. … Secondly, once that
hurdle is crossed, the story given by an approver
so far as the accused on trial is concerned, must
implicate him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt.”
11 (1975) 3 SCC 742
Page 34
34
40. Similar principles have been reiterated in Mrinal Das
and Ors. v. State of Tripura12.
41. In A. Devendran v. State of T.N.13, the Court has
registered the view that there cannot be any dispute with
regard to the proposition that ordinarily an approver’s
statement has to be corroborated in material particulars.
Certain clinching features of involvement disclosed
directly to an accused by an approver must be tested qua
each accused from independent credible evidence and on
being satisfied, the evidence of an approver can be
accepted. The Court further observed that the extent of
corroboration that is required before the acceptance of
the evidence of the approver would depend upon the facts
and circumstances of the case, however, the
corroboration required must be in material particulars
connecting each of the accused with the offence, or in
other words, the evidence of the approver implicating
12 AIR 2011 SC 3753
13 (1997) 11 SCC 720
Page 35
35
several accused persons in the commission of the offence
must not only be corroborated generally but also qua each
accused but that does not mean that there should be
independent corroboration of every particular
circumstance from an independent source. The court
proceeded to state that all that is required is that there
must be some additional evidence rendering it probable
that the story of the accomplice is true and the
corroboration could be both by direct or circumstantial
evidence. Be it noted, the said principle was stated on the
basis of pronouncements in Ramanlal Mohanlal Pandya
v. State of Bombay14, Tribhuvan Nath v. State of
Maharashtra15, Sarwan Singh v. State of Punjab
(supra), Ram Narain v. State of Rajasthan16 and
Balwant Kaur v. Union Territory of Chandigarh17.
42. In Chandan and another v. State of Rajasthan18,
the Court held that so far as the question about the
14 AIR 1960 SC 961
15 (1972) 3 SCC 511
16 (1973) 3 SCC 805
17 (1988) 1 SCC 1
18 (1988) 1 SCC 696
Page 36
36
conviction based on the testimony of the accomplice is
concerned, the law is settled and it is established as a rule
of prudence that the conviction could only be based on
the testimony of the accomplice if it is thought reliable as
a whole and if it is corroborated by independent evidence
either direct or circumstantial, connecting the accused
with the crime.
43.In Haroon Haji Abdulla v. State of Maharashtra19, the view
in this regard was expressed in the following terms: -
“An accomplice is a competent witness and his
evidence could be accepted and a conviction
based on it if there is nothing significant to reject
it as false. But the rule of prudence, ingrained in
the consideration of accomplice evidence, requires
independent corroborative evidence first of the
offence and next connecting the accused, against
whom the accomplice evidence is used, with the
crime.”
44. In Major E.G. Barsay v. State of Bombay20, it has
been observed that this Court had never intended to lay
down that the evidence of an approver and the
corroborating pieces of evidence should be treated in two
19 AIR 1968 SC 832
20 AIR 1961 SC 1762
Page 37
37
different compartments, that is to say, the court shall first
have to consider the evidence of the approver dehors the
corroborated pieces of evidence and reject it if it comes to
the conclusion that his evidence is unreliable; but if it
comes to the conclusion that it is reliable, then it will have
to consider whether that evidence is corroborated by any
other evidence.
45. In Renuka Bai alias Rinku alias Ratan and another
v. State of Maharashtra21, the Court held that the
evidence of the approver is always to be viewed with
suspicion especially when it is seriously suspected that he
is suppressing some material facts.
46. In Ranjeet Singh and another v. State of
Rajasthan22, the Court observed that while looking for
corroboration, one must first look at the broad spectrum
of the approver’s version and then find out whether there
is other evidence to lend assurance to that version. The
nature and extent of the corroboration may depend upon
21 (2006) 7 SCC 442
22 (1988) 1 SCC 633
Page 38
38
the facts of each case and the corroboration need not be
of any direct evidence that the accused committed the
crime. The corroboration even by circumstantial evidence
may be sufficient.
47. Keeping in view the aforesaid principles which relate to
the acceptance of the evidence of an approver, we have
bestowed our anxious consideration and carefully perused
the judgment of the trial court and that of the High Court.
Learned counsel for the parties have taken us through the
evidence of Pappu @ Saleem, PW-1. He has clearly
deposed that Abdul Mateen who is also known as Iqbal,
used to visit the Madarsa at village Farah. Abdul Hameed
and Abdul Mateen were seen at village Farah many times
without any reason before the incicent. As far as Abdul
Hameed and Raies Beg are concerned, he has deposed
that both the accused used to go to the house of Chandra
Prakash in Roopwas to collect the “masala” in a cover
box. Both of them used to meet Abdul Mateen in the
Madarsa at village Farah on a number of occasions. He
Page 39
39
used to contact Abdul Mateen from Firozabad many times
and the watches fixed with bombs as timers were given at
Farah by Abdul Hameed to make the bomb. It has also
come out in his evidence that Pappu along with Accused
Raies Beg @ Raies Ahmad and other accused persons
used to visit the Madarsa at village Farah. His evidence
also shows that Raies Beg and Pappu used to bring
explosive from Roopwas to village Farah and he has
mentioned that Raies Beg had brought five boxes of
“masala” for Rs.10,000/- from the house of Chandra
Prakash and those boxes were unloaded at the Madarsa in
Farah. Pappu was asked to carry the boxes along with
Raies Beg and Abdul Hameed. He has clearly deposed
about the conspiracy that was told to him by accused
Abdul Mateen. As far as Chandra Prakash is concerned, it
had come in the evidence that though Pappu used to visit
his house at Roopwas along with other accused persons,
yet he used to stay outside the house of Chandra Prakash
and the others used to go to bring “masala” from the
house of Chandra Prakash. The alleged “masala” used to
Page 40
40
be brought in boxes from time to time to the associates of
Raies Beg and Abdul Hameed who used to come to
Madarsa at Farah.
48. From the analysis of the aforesaid evidence, it is clear
that Pappu as approver has implicated himself in the
crime. He has not made any effort to give any statement
which is exculpatory. He has spoken quite graphically
about the involvement of all the accused persons. Mr.
Jain, learned senior counsel appearing for the appellant,
would contend that he has used the word “masala” but
not ammonium nitrate, but Pappu has clarified that
though he was not aware what was contained in the
boxes, yet he was told by the other accused persons later
on that it contained certain explosive substances. The
said aspect has been corroborated from other ocular
evidence as well as the seizure.
49. Presently, we shall advert to the various facets of
corroboration in evidence against the accused persons.
As far as Chandra Prakash is concerned, on the basis of
Page 41
41
the approver Chandra Prakash was arrested on 1.8.1997
vide Ext.P-37. On the basis of the information of the
accused, Chandra Prakash, the Investigating Officer
searched his house and godown and recovered 28 boxes
of ammonium nitrate. It has come out in the evidence
that Chandra Prakash opened the lock of the godown the
key of which was in his possession. Bhup Singh, PW-32,
eye witness to the seizure of articles from the godown of
Chandra Prakash, has categorically stated that the
accused Chandra Prakash led to the recovery of red and
blue coloured bundles from the godown of the building.
The office of PW-32 was also in the said building. From
the godown, fuse wires and five kilograms of grey
coloured material was also recovered. The Investigating
Officer, M.M. Atray, PW-71, has also proven the factum of
recovery. Shivnath Kuriya, PW-22, who had accompanied
the investigating team, has deposed that the explosive
which was used in the live bomb had ammonium
nitrate/gelaltine. Chetan Das Rawatani, PW-34, who is an
expert witness in respect of explosives, approved his
Page 42
42
report Ext. P-49 and has deposed that the ammonium
nitrate that was seized from the godown of Chandra
Prakash was in such a condition that it could be used to
prepare a bomb.
50. Mr. Jain, as has been stated earlier, has seriously
criticized about the recovery from Chandra Prakash on the
ground that when he led to the discovery of the articles
seized, he was not arrested. In this context, we refer with
profit to the decision in Mohd. Arif alias Ashfaq v.
State (NCT of Delhi)23 wherein the Court opined thus: -
“The essence of the proof of a discovery under
Section 27 of the Evidence Act is only that it
should be credibly proved that the discovery made
was a relevant and material discovery which
proceeded in pursuance of the information
supplied by the accused in the custody. How the
prosecution proved it, is to be judged by the court
but if the court finds the fact of such information
having been given by the accused in custody is
credible and acceptable even in the absence of
the recorded statement and in pursuance of that
information some material discovery has been
effected then the aspect of discovery will not
suffer from any vice and can be acted upon.”
23 (2011) 13 SCC 621
51. In this context, we may refer to the authority in Vikram
Singh and others v. State of Punjab24, wherein while
interpreting Section 27 of the Evidence Act, the Court
opined that a bare reading of the provision would reveal
that a “person must be accused of any offence” and that
he must be “in the custody of a police officer” and it is not
essential that such an accused must be under formal
arrest.
52. In this regard, a passage from the Constitution Bench
decision in State of Uttar Pradesh v. Deoman
Upadhyaya25 is reproduced below: -
“The expression, "accused of any offence" in s. 27,
as in s. 25, is also descriptive of the person
concerned, i.e., against a person who is accused of
an offence, s. 27 renders provable certain
statements made by him while he was in the
custody of a police officer. Section 27 is founded
on the principle that even though the evidence
relating to confessional or other statements made
by a person, whilst he is in the custody of a police
officer, is tainted and therefore inadmissible, if the
truth of the information given by him is assured by
the discovery of a fact, it may be presumed to be
untainted and is therefore declared provable in so
far as it distinctly relates to the fact thereby
24 (2010) 3 SCC 56
25 AIR 1960 SC 1125
discovered. Even though s. 27 is in the form of a
proviso to s. 26, the two sections do not
necessarily deal with the evidence of the same
character. The ban imposed by s. 26 is against the
proof of confessional statements. Section 27 is
concerned with the proof of information whether it
amounts to a confession or not, which leads to
discovery of facts. By s. 27, even if a fact is
deposed to as discovered in consequence of
information received, only that much of the
information is admissible as distinctly relates to
the fact discovered.”
53. In Anter Singh v. State of Rajasthan26, after
referring to the decisions in Madan Singh v. State of
Rajasthan27, Mohd. Aslam v. State of Maharashtra28,
Pulukuri Kottaya v. Emperor29, Prabhoo v. State of
U.P.30 and Mohd. Inayatullah v. State of
Maharashtra31, this Court summed up the following
principles:-
“16. The various requirements of the section can
be summed up as follows:
(1) The fact of which evidence is sought to be
given must be relevant to the issue. It must be
borne in mind that the provision has nothing to
do with the question of relevancy. The
26 (2004) 10 SCC 657
27 (1978) 4 SCC 435
28 (2001) 9 SCC 362
29 AIR 1947 PC 67
30 AIR 1963 SC 1113
31 (1976) 1 SCC 828
relevancy of the fact discovered must be
established according to the prescriptions
relating to relevancy of other evidence
connecting it with the crime in order to make
the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in
consequence of some information received from
the accused and not by the accused’s own act.
(4) The person giving the information must be
accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of
information received from an accused in
custody must be deposed to.
(7) Thereupon only that portion of the
information which relates distinctly or strictly
to the fact discovered can be proved. The
rest is inadmissible.”
54. In this context, it would be fruitful to refer to the ruling
in State of Maharashtra v. Damu32 wherein it has been
observed that: -
32 (2000) 6 SCC 269
Page 46
46
“35. The basic idea embedded in Section 27 of
the Evidence Act is the doctrine of confirmation
by subsequent events. The doctrine is founded
on the principle that if any fact is discovered in
a search made on the strength of any
information obtained from a prisoner, such a
discovery is a guarantee that the information
supplied by the prisoner is true. The information
might be confessional or non-inculpatory in
nature, but if it results in discovery of a fact it
becomes a reliable information. Hence the
legislature permitted such information to be
used as evidence by restricting the admissible
portion to the minimum.”
55. In Aftab Ahmad Anasari v. State of Uttaranchal33,
after referring to earlier decisions, a two-Judge Bench,
appreciating the material brought on record, came to hold
that when the accused was ready to show the place where
he had concealed the clothes of the deceased, the same
was clearly admissible under Section 27 of the Evidence
Act because the same related distinctly to the discovery of
the clothes of the deceased from that very place.
56. In Bhagwan Dass v. State (NCT of Delhi)34, relying
on the decisions in Aftab Ahmad Anasari (supra) and
33 (2010) 2 SCC 583
34 (2011) 6 SCC 396
Manu Sharma v. State (NCT of Delhi)35, the Court
opined that when the accused had given a statement that
related to the discovery of an electric wire by which the
crime was committed, the said disclosure statement was
admissible as evidence.
57. As the material brought on record would show, the
accused was in the custody of the investigating agency
and the fact whether he was formally arrested or not will
not vitiate the factum of leading to discovery. However, it
may be stated that the accused was also arrested on that
day. We have dealt with the issue that formal arrest is not
necessary as Mr. Jain has seriously contended that the
arrest was done after the recovery. As we have clarified
the position in law, the same would not make any
difference.
58. As regards recovery from accused Abdul Mateen is
concerned, it is borne out from the record that after his
arrest on 28.6.1997, he gave information at 6.00 a.m. as
35 (2010) 6 SCC 1
contained in Ext. P-255, about another bomb and on the
basis of the said information the Investigating Officer, PW-
71, visited the spot along with the accused and at his
instance a live bomb was recovered which was
underneath the earth. In the said information the accused
had stated that the two bombs were inside the SMS
Stadium and he could verify the places by going inside the
stadium. In the evidence of Jai Narain, PW-6, Gopal Singh,
PW-7 and Shivnath, PW-22, it has come on record that the
bombs were recovered at the instance of accused Abdul
Mateen on 28.6.1998. This fact has been corroborated by
Vinod Sharma, PW-16 and Gordhan, PW-10 who also
accompanied the investigating team. Shivnath, PW-22,
had clearly stated that the bomb recovered was high
explosive time bomb and the battery was inside the timer
and the same was switched on and he further confirmed
that electric detonator was used in the bomb. Vinod
Kumar, PW-16, also stated that the electric detonator was
found in the bomb and the same was neutralized. Suresh
Kumar Saini, PW-67, in his deposition, gave description of
loss caused due to the explosion of the time bomb. He
had further deposed that lid of stainless steel of casio
watch had been recovered from the scene of crime.
59. On appreciating the aforesaid material, it is clear as
crystal that the said accused has stated about the fact of
planting of bomb at a particular site in the stadium and
led to the said place from which the bomb was recovered.
The submission of Mr. Jain is that such material cannot be
put against the accused being inadmissible in evidence.
In this context, we may refer to a two-Judge Bench
decision in Prakash Chand v. State (Delhi
Administration)36 wherein the Court, after referring to
the decision in Himachal Pradesh Administration v.
Om Prakash37, opined thus: -
“There is a clear distinction between the conduct
of a person against whom an offence is alleged,
which is admissible under Section 8 of the
Evidence Act, if such conduct is influenced by any
fact in issue or relevant fact and the statement
made to a Police Officer in the course of an
investigation which is hit by Section 162 of the
Criminal Procedure Code. What is excluded by
36 (1979) 3 SCC 90
37 (1972) 1 SCC 249
Section 162, Criminal Procedure Code is the
statement made to a Police Officer in the course of
investigation and not the evidence, relating to the
conduct of an accused person (not amounting to a
statement) when confronted or questioned by a
Police Officer during the course of an
investigation. For example, the evidence of the
circumstance, simpliciter, that an accused person
led a Police Officer and pointed out the place
where stolen articles or weapons which might
have been used in the commission of the offence
were found hidden, would be admissible as
conduct, under Section 8 of the Evidence Act,
irrespective of whether any statement by the
accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27
of the Evidence Act.”
60. The said principle has been reiterated in A.N.
Venkatesh and another v. State of Karnataka38.
61. Tested on the touchstone of the aforesaid enunciation
of law, the submission of Mr. Jain leaves us unimpressed
and we are inclined to hold that the said fact is a relevant
fact which is admissible in evidence.
62. The next aspect that is to be adverted to is that
ammonium nitrate not being an explosive substance,
mere possession cannot bring the accused Chandra
38 (2005) 7 SCC 714
Page 51
51
Prakash within the ambit of any offence. In this regard,
we may refer to Section 4(d) of the 1884 Act. It reads as
follows: -
“(d) “explosive” means gunpowder,
nitroglycerine, nitroglycol, guncotton, di-nitrotoluene,
tri-nitro-toluene, picric acid, di-nitrophenol,
tri-nitro-resorcinol (styphnic acid), cyclotrimethylene-
tri-nitramine, penta-erythritoltetranitrate,
tetryl, nitro-guanidine, lead azide,
lead styphynate, fulminate of mercury or any
other metal, diazo-di-nitro-phenol, coloured fires or
any other substance whether a single chemical
compound or a mixture of substances, whether
solid or liquid or gaseous used or manufactured
with a view to produce a practical effect by
explosion or pyrotechnic effect; and includes fogsignals,
fireworks, fuses, rockets, percussion-caps,
detonators, cartridges, ammunition of all
descriptions and every adaptation or preparation
of an explosive as defined in this clause;”
63. Section 2 of the 1908 Act, which deals with definitions,
reads as follows: -
“2. Definitions. - In this Act--
(a) the expression "explosive substance" shall be
deemed to include any materials for making
any explosive substance; also any apparatus,
machine, implement or material used, or
intended to be used, or adapted for causing,
or aiding in causing, any explosion in or with
any explosive substance; also any part of any
such apparatus, machine or implement;
Page 52
52
(b) the expression "special category explosive
substance" shall be deemed to include
research development explosive (RDX), penta
erythritol tetra nitrate (PETN), high melting
explosive (HMX), tri nitro toluene (TNT), low
temperature plastic explosive (LTPE),
composition exploding (CE) (2, 4, 6 phenyl
methyl nitramine or tetryl), OCTOL (mixlure
of high melting explosive and tri nitro
toluene), plastic explosive kirkee-1 (PEK-1)
and RDX/TNT compounds and other similar
type of explosives and a combination thereof
and remote control devices causing explosion
and any other substance and a combination
thereof which the Central Government may,
by notification in the Official Gazette, specify
tor the purposes of this Act.”
64. Keeping in view the broad definitions of both the Acts,
we are required to see what has been seized from the
accused Chandra Prakash. What is evincible from the
seizure report, Ext. P-42, apart from ammonium nitrate,
fuse wire and empty boxes were also seized. That apart,
17 packs containing blue coloured fuse wire kept in plastic
(polythene) bags and four boxes containing blue coloured
fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of
explosives detonating fuse measuring 1500 meters in
length and 38 kg in weight, containing four wooden logs of
red colour, 375 meter wire in each Gattha and black
coloured cap fitted on the tip of the wire, three cartons of
explosive Belgelative 90 (Gulla Dynamite) net weight of
each being 25 Kg. with “Division I Class II safety distance
category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on
each box, four packets of O.D. Detonator containing 1600
detonators, a substance of light yellow colour kept inside
a carton of paer in a plastic bag weighing nearly 5 kg and
16 empty cartons, one of gulla and 15 of fuse wire, were
seized.
65. Section 2 of the 1908 Act has a deeming provision
which states that explosive substance would include any
materials for making any explosive substance. Similarly,
Section 4(d) of the 1884 Act has a broader spectrum
which includes coloured fires or any other substances,
whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium
nitrate other articles had been seized. The combination of
Page 54
54
the same, as per the evidence of the expert witness, was
sufficient to prepare a bomb for the purpose of explosion.
In addition to the same, huge quantity of ammonium
nitrate was seized and it was seized along with other
items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused
gives credence to the prosecution version that the
possession was conscious and it was intended to be used
for the purpose of the blast.
66. The next aspect which needs to be adverted to is nonframing
of specific charge. On a perusal of the record, we
find that the learned trial Judge has framed the charges
specifically by putting the charges to the accused. The
purpose of framing of charges is that the accused should
be informed with certainty and accuracy of the charge
brought against him. There should not be vagueness.
The accused must know the scope and particulars in
detail. In this context, we may refer to decision in
Page 55
55
Santosh Kumari v. State of Jammu and Kashmir and
others39, wherein it has been held as follows: -
“17. Like all procedural laws, the Code of Criminal
Procedure is devised to subserve the ends of
justice and not to frustrate them by mere
technicalities. It regards some of its provisions as
vital but others not, and a breach of the latter is a
curable irregularity unless the accused is
prejudiced thereby. It places errors in the charge,
or even a total absence of a charge in the curable
class. That is why we have provisions like Sections
215 and 464 in the Code of Criminal Procedure,
1973.
18. The object of the charge is to give the accused
notice of the matter he is charged with and does
not touch jurisdiction. If, therefore, the necessary
information is conveyed to him in other ways and
there is no prejudice, the framing of the charge is
not invalidated. The essential part of this part of
law is not any technical formula of words but the
reality, whether the matter was explained to the
accused and whether he understood what he was
being tried for. Sections 34, 114 and 149 IPC
provide for criminal liability viewed from different
angles as regards actual participants, accessories
and men actuated by a common object or a
common intention; and as explained by a five-
Judge Constitution Bench of this Court in Willie
(William) Slaney v. State of M.P.40 SCR at p. 1189,
the charge is a rolled-up one involving the direct
liability and the constructive liability without
specifying who are directly liable and who are
sought to be made constructively liable.”
39 (2011) 9 SCC 234
40 AIR 1956 SC 116
67. In K. Prema S. Rao v. Yadla Srinivasa Rao41, the
Court opined that though the charge specifically under
Section 306 IPC was not framed, yet all the ingredients
constituting the offence were mentioned in the statement
of charges. In that context, a three-Judge Bench of this
Court ruled that mere omission or defect in framing of
charge does not disable the criminal court from convicting
the accused for the offence which is found to have been
proved on the evidence on record. The said principle has
been reiterated in Dalbir Singh v. State of U.P.42,
State of U.P. v. Paras Nath Singh43 and Annareddy
Sambasiva Reddy v. State of A.P.44.
68. In the case at hand, as has been stated earlier, the
charges have been framed and we do not find any
vagueness. That apart, neither any prejudice has been
caused nor has there been any failure of justice. Thus,
the submission of Mr. Jain in this regard leaves us
unimpressed.
41 (2003) 1 SCC 217
42 (2004) 5 SCC 334
43 (2009) 6 SCC 372
44 (2009) 12 SCC 546
Page 57
57
69. The next facet which deserves to be addressed pertains
to the criminal conspiracy. The submission of the learned
counsel for the appellants is that the learned trial Judge
has inappositely drawn certain inferences to show that
there was a criminal conspiracy and the High Court has,
without delving deep into the matter, concurred with the
same. As per the evidence brought on record, it is clear as
crystal that accused Abdul Mateen, Abdul Hamid and
Raies Beg used to meet quite frequently at the Madarsa at
village Farah. It is also evident from the deposition of
Kanchan Singh, PW-11, Shri Chand, PW-12, Murari Lal
Sharma, PW-13, and Ashok Kumar, PW-17, that the
accused Abdul Mateen, Raies Beg and Abdul Hamid used
to meet at the Madarsa at village Farah. That apart,
Pappu had also deposed implicating himself that when
there used to be discussion at madarsa in the village
Farah about the suitable place for planting the bomb, the
timer of the bomb was supplied by Dr. Abdul Hamid. The
chain of events and the participation of the accused
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persons which had the genesis in the discussion and the
meetings, the purchase of ammonium nitrate and other
items, carrying of the boxes to the Madarsa and all other
factors cumulatively show that there was conspiracy.
70. While dealing with the facet of criminal conspiracy, it
has to be kept in mind that in case of a conspiracy, there
cannot be any direct evidence. Express agreement
between the parties cannot be proved. Circumstances
proved before, during and after the occurrence have to be
considered to decide about the complicity of the accused.
Such a conspiracy is never hatched in open and,
therefore, evaluation of proved circumstances play a vital
role in establishing the criminal conspiracy. In this
context, we may refer with profit to a passage from
Yogesh alias Sachin Jagdish Joshi v. State of
Maharashtra45: -
“20. The basic ingredients of the offence of
criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must
relate to doing or causing to be done either (a) an
illegal act; or (b) an act which is not illegal in itself
45 (2008) 10 SCC 394
Page 59
59
but is done by illegal means. It is, therefore, plain
that meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act
by illegal means is sine qua non of criminal
conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi v. State of
Maharashtra46 a conspiracy is always hatched in
secrecy and it is impossible to adduce direct
evidence of the common intention of the
conspirators. Therefore, the meeting of minds of
the conspirators can be inferred from the
circumstances proved by the prosecution, if such
inference is possible.”
71. The same principles have been stated in Pratapbhai
Hamirbhai Solanki v. State of Gujarat and another47.
72. In Yakub Abdul Razak Menon v. The State of
Maharashtra, through CBI, Bombay48, analyzing
various pronouncements, this Court opined thus: -
“68. For an offence Under Section 120B Indian
Penal Code, the prosecution need not necessarily
prove that the conspirators expressly agreed to do
or cause to be done the illegal act, the agreement
may be proved by necessary implication. It is not
necessary that each member of the conspiracy
must know all the details of the conspiracy. The
offence can be proved largely from the inferences
drawn from the acts or illegal omission committed
by the conspirators in pursuance of a common
design. Being a continuing offence, if any acts or
46 (1980) 2 SCC 465
47 (2013) 1 SCC 613
48 2013 (3) SCALE 565
Page 60
60
omissions which constitute an offence are done in
India or outside its territory, the conspirators
continuing to be the parties to the conspiracy and
since part of the acts were done in India, they
would obviate the need to obtain the sanction of
the Central Government. All of them need not be
present in India nor continue to remain in India.
The entire agreement must be viewed as a whole
and it has to be ascertained as to what in fact the
conspirators intended to do or the object they
wanted to achieve. (Vide: R.K. Dalmia v. Delhi
Administration49, Lennart Schussler and
Anr. v. Director of Enforcement and Anr.50,
Shivanarayan Laxminarayan Joshi v. State of
Maharashtra and Mohammad Usman
Mohammad Hussain Maniyar and
Anr. v. State of Maharashtra51).”
73. Testing the present factual matrix on the anvil of the
aforesaid enunciation of law, we are of the considered
view that the opinion expressed by the learned trial Judge
as well as by the High Court that there has been
conspiracy between the parties to commit the blast on a
particular day cannot be found fault with.
74. Presently, we shall engage ourselves to deal with the
conviction of accused Abdul Mateen for the offence under
49 AIR 1962 SC 1821
50 (1970) 1 SCC 152
51 AIR 1981 SC 1062
Page 61
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Section 14 of the Foreigners Act, 1946. The said provision
reads as under: -
“14. Penalty for contravention of provisions
of the Act, etc. - whoever –
(a) Remains in any area in India for a period
exceeding the period for which the visa was
issued to him;
(b) does any act in violation of the conditions of
the valid visa issued to him from his entry and
stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of
any order made thereunder or any direction
given in pursuance of this Act or such order for
which no specific punishment is provided under
this Act, shall be punished with imprisonment
for a term which may extend to five years and
shall also be liable to fine; and if he has entered
into a bond in pursuance of clause (f) of subsection
(2) of section 3, his bond shall be
forfeited, and any person bound thereby shall
pay the penalty thereof or show cause to the
satisfaction of the convicting court why such
penalty should not be paid by him.
Explanation. – For the purposes of this section,
the expression “visa” shall have the same
meaning as assigned to it under the Passport
(Entry into India) Rules, 1950 made under the
Passport (Entry into India) Act, 1920 (34 of
1920).”
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75. The learned trial Judge, analyzing the material on
record, has come to hold that the said Abdul Mateen is a
resident of Pakistan and he had no valid document to be
in India. In his statement under Section 313 of the Code,
he had not disputed that he was not having passport or
visa and he is of Pakistan nationality. Thus, the offence
under the said Act has been held to be proved. The High
Court has concurred with the said view. In our considered
opinion, the offence under the said Act has been proved
beyond reasonable doubt.
76. In view of the aforesaid analysis, we conclude and hold
that the grounds assailing the judgment of conviction and
the order of sentence have no legal substantiality and,
accordingly, they are rejected.
77. The factual scenario of the instant case compels us to
state that these kinds of activities by anyone breeds
lawlessness, fear and affects the fundamental unity of our
great country. A nation with a desire to prosper is
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63
required to maintain high degree of law and order
situation apart from respecting “imperatives of
internationalism”. Certain individuals harbouring
unacceptable notions and inexcusable philosophy and, on
certain occasions, because of enormous avarice, try to
jeopardize the cohesive and collegial fabric of the State.
This leads to national decay and gives rise to
incomprehensible anarchy. It reflects non-reverence for
humanity. Be it categorically stated, every citizen of this
country is required to remember that national patriotism
is founded on the philosophy of public good. Love for
one’s country and humanity at large are eternally
cherished values. The infamous acts of the appellants are
really condemnable not only because of the dent they
intended to create in the social peace and sovereignty of
the nation, but also from the humane point of view as
they are founded on greed, envy, baseless anger, pride,
prejudice and perverse feelings towards mankind.
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78. We have, in agony and anguish, have expressed thus
because when a devastating activity like the present one
occurs on the Republic Day of our country Bharat, it
injures the nationality, disturbs the equilibrium of each
individual citizen, creates a concavity in the equanimity of
the peace of the State, generates a stir in the sanctity and
divinity of law and order situation which is paramount in
any civilized State, attempts to endanger the economic
growth of a country and, in the ultimate eventuate,
destroys the conceptual normalcy of any habitat. Law
cannot remain silent to this because it is the duty of law to
resist such attacks on peace. It is manifest that the
accused-appellants had conspired to send a savage stir
among the citizenry of this country on the Republic Day.
The great country like ours cannot succumb to this kind of
terrorist activity as it is nationally as well as
internationally obnoxious. Such tolerance would
tantamount to acceptance of defeat. The iron hands of
law has to fall and in the obtaining facts and
circumstances, as the charges have been proved beyond
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65
reasonable doubt, the law has rightly visited the
appellants and, accordingly, we concur with the same.
79. Consequently, all the appeals, being bereft of merit,
stand dismissed.
………………………………J.
[K.S. Radhakrishnan]
………………………………J.
[Dipak Misra]
New Delhi;
May 9, 2014.
Print Page
Singh and others v. State of Punjab24, wherein while
interpreting Section 27 of the Evidence Act, the Court
opined that a bare reading of the provision would reveal
that a “person must be accused of any offence” and that
he must be “in the custody of a police officer” and it is not
essential that such an accused must be under formal
arrest.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1155 OF 2014
(Arising out of S.L.P. (Crl.) 4419 of 2009)
Chandra Prakash … Appellant
Versus
State of Rajasthan …Respondent
Dated;9-5 2014
Citation; 2014(3) crimes SC 59
Dipak Misra, J.
On 26th January, 1996, a day of celebration and
conscientious remembrance of the “Red Letter Day” in the
history of India because 26th January is the date in 1950,
when our organic, inclusive, humane and compassionate
Constitution came into existence being given by the people
of this country to themselves and the nation has been
obliged to jubilate remembering the said important day in
our national history, for it chartered the path of many an
emancipation and conferred on the people the highly
cherished fundamental rights; about 8.30 a.m., there was a
blast of explosive substances between Gate No.12 and Gate
No. 13, towards the southern and eastern side of Sawai Man
Singh Stadium Jaipur, where the State level function on
Republic Day was going to be celebrated. Soon after the
blast, Prahlad Singh, the Station House Officer, Police Station
lodged an FIR about 9.30 a.m. which was registered as FIR
Page 3
3
No. 39/1996. As per the FIR, when the blast took place, the
people who had assembled were asked to leave the stadium
so that there could be a check. During the check, it was
found that due to the blast, a big size crater had come into
existence at the scene of explosion. That apart, by the said
explosion, the sand hopped upward and fell on the places
meant for sitting in the stadium and also on the roof. The
glasses of the windows of the pavilion near the explosion
had broken into pieces. At the time when the explosion had
occurred, only police personnel but no civilians were present
in that part of the stadium. The public at large, which was
present inside the Stadium, was informed to leave the
Stadium so that the check and security could be carried out.
Due to the sound caused by the explosion, one Ramgopal
Choudhary, an employee of the Public Works Department,
who was passing nearby, had met with an injury on his ear
for which he was immediately sent to the hospital. On the
basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention
of Damage to Public Property Act, 1984 and under Section 3
Page 4
4
of the Explosive Substances Act, 1908 (for short “the 1908
Act”) and also under Section 9B of the Explosive Act, 1884
(for brevity “the 1884 Act”) were registered and the
investigation commenced. Later on, the investigation of the
case was transferred to C.I.D(C.B.).
2. During the investigation, an anonymous letter in Urdu
language dated 1st June, 1997 was sent to the
Superintendent of Police, wherein some information was
given which was alleged to have been gathered by the
senders who described themselves as well wishers while
they were in custody in the Central Jail, Jaipur, in respect
of the bomb-blast that took place on 26th January, 1996 at
the SMS Stadium, Jaipur. In that letter, the names of
some persons, i.e., Raies Beg of Agra, Dr. Abdul Hamid of
Firozabad and Pappu Puncturewala were mentioned. It
was also mentioned that the ISI of Pakistan was behind
the bomb-blast. On the basis of the said information, the
investigating officer arrested five persons, namely, Abdul
Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
Page 5
5
3. During the investigation, the investigating agency
recovered a live time bomb from SMS Stadium and
explosive items were recovered from Roopwas, District
Bharatpur. In the course of the investigation, accused
Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”)
before the Chief Judicial Magistrate on 14.8.1997 who, by
order dated 30.8.1997, authorized the Additional Chief
Judicial Magistrate No. 6 to record the statement of the
said accused under Section 164 of the Code and
thereafter, the Chief Judicial Magistrate, by a reasoned
order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the
charge-sheet against the arrested accused persons,
namely, Chandra Prakash, Abdul Mateen, Raies Beg and
Abdul Hamid.
4. All the accused persons abjured guilt, pleaded false
implication and, accordingly, faced trial.
Page 6
6
5. The learned trial Judge framed different charges against
the four accused persons and we think that it would be
apt to refer to the charges framed against each of them.
As far as Chandra Prakash is concerned, the charges that
were framed against him were under Section 9B of the
1884 Act and under Sections 3, 4, 5 read with Section 6 of
the 1908 Act. As far as Abdul Mateen is concerned, he
was charged with the offences under Section 14 of the
Foreigners Act, 1946, under Sections 3, 4 and 5 of the
1908 Act, under Section 9B of the 1884 Act, under Section
3 of the Prevention of Damages to Public Properties Act
and under Sections 307, 118, 435 and 456 IPC. As far as
Raies Beg and Abdul Hamid are concerned, they were
faced with similar charges, namely, under Section 9B of
the 1884 Act, under Sections 3, 4 and 5 read with Section
6 of the 1908 Act and under Sections 307/120B, 118/120B
and 435/120B IPC.
6. To bring home the charges against the accused persons,
the prosecution examined as many as 78 witnesses and
Page 7
7
brought on record exhibits P-1 to P-296. In defence, no
witness was examined on behalf of any of the accused
persons. However, documentary evidence was produced
by them, i.e., exhibits D-1 to D-5. We shall refer to the
relevant parts of the testimonies of the vital witnesses
and advert to the documents which have been stressed
and emphasized upon by the prosecution at a later stage.
7. The accused persons in their statements under Section
313 of the Code took separate plea and hence, it is
obligatory on our part to record their pleas individually.
Abdul Mateen admitted that he is a Pakistani and he had
remained as a Pakistani always; that he had never come
to India before his arrest; that he did not know any person
in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and
that he had never given any information to the police and
no recovery was made by the police at his instance and
he had never identified any place. The plea of Abdul
Hamid was that he never gave any information to the
Page 8
8
police during the investigation of the case and he did not
furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated.
Raies Beg took the plea that due to communal riots he
had been falsely booked in the crime. Accused Chandra
Prakash, apart from false implication, denied any
relationship with Pappu @ Saleem, PW-1, and further
stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took
the stand that he had not taken any room on rent in Krishi
Upaz Mandi or any shop near the power house on rent and
disputed the recovery from any shop. The trial court,
appreciating the oral and documentary evidence on
record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and
sentenced all of them individually in respect of all the
specific charges framed against them. The offence for
which each of them had faced trial has been already
mentioned hereinabove. All the accused had been
sentenced separately by the learned trial Judge.
Page 9
9
8. Accused Abdul Mateen was sentenced to undergo five
years rigorous imprisonment and a fine of Rs.10,000/-, in
default of payment of fine to further undergo one year’s
simple imprisonment under Section 14 of the Foreigners
Act; ten years rigorous imprisonment and a fine of
Rs.20,000, in default to further undergo two years’ simple
imprisonment under Section 4 of the Prevention of
Damages to Public Property Act; three years rigorous
imprisonment and a fine of Rs.3,000/-, in default to further
undergo six months’ simple imprisonment under Section
456 IPC; to undergo ten years rigorous imprisonment and
a fine of Rs.10,000/-, in default to further undergo two
years’ simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and
a fine of Rs.7,000/-, in default to further undergo one and
half years’ simple imprisonment under Section 435 read
with Section 120B IPC; five years rigorous imprisonment
and a fine of Rs.5,000/-, in default to further undergo one
year’s simple imprisonment under Section 118 read with
Page 10
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Section 120B IPC; two years rigorous imprisonment and a
fine of Rs.2,000/-, in default to further undergo three
months’ simple imprisonment under Section 9B of the
1884 Act; imprisonment for life and a fine of Rs.20,000/- in
default to further undergo three years’ simple
imprisonment under Section 3 of the 1908 Act; seven
years rigorous imprisonment and a fine of Rs.7,000/-, in
default to further undergo one and half years’ simple
imprisonment under Section 4 of the 1908 Act; and five
years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment
under Section 5 of the 1908 Act.
9. Accused Chandra Prakash was sentenced to undergo two
years rigorous imprisonment and a fine of Rs.2,000/-, in
default to further undergo three months’ simple
imprisonment under Section 9B of the 1884 Act; ten years
rigorous imprisonment and a fine of Rs.10,000/-, in default
to further undergo two years’ simple imprisonment under
Section 3 read with Section 6 of the 1908 Act; seven years
Page 11
11
rigorous imprisonment and a fine of Rs.7,000/-, in default
to further undergo one and half years’ simple
imprisonment under Section 4 read with Section 6 of the
1908 Act; and five years rigorous imprisonment and a fine
of Rs.5,000/-, in default to further undergo one year’s
simple imprisonment under Section 5 read with Section 6
of the 1908 Act.
10. Accused Abdul Hamid and Raies Beg were sentenced to
undergo two years rigorous imprisonment and a fine of
Rs.2,000/-, in default to further undergo three months’
simple imprisonment; ten years rigorous imprisonment
and a fine of Rs.10,000/-, in default to further undergo two
years simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and
a fine of Rs.7,000/-, in default to further undergo one and
half years’ simple imprisonment under Section 435 read
with Section 120B IPC; five years rigorous imprisonment
and a fine of Rs.5,000/-, in default to further undergo one
year’s simple imprisonment under Section 118 read with
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Section 120B IPC; ten years rigorous imprisonment and a
fine of Rs.10,000/-, in default to further undergo two
years’ simple imprisonment under Section 3 read with
Section 6 of the 1908 Act; seven years rigorous
imprisonment and a fine of Rs.7,000/-, in default to further
undergo one and half years’ simple imprisonment under
Section 4 read with Section 6 of the 1908 Act; and five
years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment
under Section 5 read with Section 6 of the 1908 Act.
11. At this juncture, we think it appropriate to state the
findings recorded by the learned trial Judge against each
of the accused. As far as Abdul Mateen is concerned, the
trial court held that it was clear from the evidence of GPS
Wirk, PW-69, Assistant Commander, BSF, that Mhd.
Ashlam Baba was the financial head of a terrorist
organization by the name of “Harkat-ul-Ansar”, and during
the course of investigation, the accused Abdul Mateen
was arrested from Srinagar and no passport or visa was
Page 13
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found in his possession. The offence punishable under
Section 14 of the Foreigners Act which had been levelled
against him was established beyond reasonable doubt.
The live time bomb was duly recovered and accused
Abdul Mateen had exclusive knowledge and it was he who
planted the time bomb at that place and it was proven
from the testimonies of the witnesses. From the evidence
of the approver, Pappu, and the information under Section
27 of the Evidence Act, it could be concluded that prior to
26.1.1996, two time bombs were implanted by accused
Abdul Mateen. It was clear from the testimonies of Jai
Narayan, PW-6, and Gopal Saini, PW-7, that Abdul Mateen
had led to the recovery of the bomb and the charge of
crime punishable under Section 9B of the Explosive Act
levelled against the accused Abdul Mateen has been
proved beyond reasonable doubt.
12. In respect of Raies Beg and Abdul Hamid, the trial court
held that Abdul Hamid had been visiting accused Chandra
Prakash at Roopbas quite frequently and both the accused
Page 14
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persons had helped accused Abdul Mateen in the
commission of the offence. They used to meet at the
Madarsa of village Farah and the conspiracy was hatched.
The learned trial Judge came to hold that the involvement
of the said accused persons in the commission of the
crime was reflectible from the evidence of number of
witnesses and the prosecution had established their role
beyond any shadow of doubt.
13. Pertaining to Chandra Prakash, the Court held that
explosive substances including gelatin and dynamite in
huge quantity were recovered from his possession on
1.8.1997. Scanning the evidence, it recorded that the
dynamite was used in both the bombs. He further opined
that Pappu @ Saleem, PW-1, was an associate and
colleague of accused Abdul Mateen and prior to the
incident, the explosive substance was brought from
Chandra Prakash in village Farah, where Pappu @ Saleem
used to live with him. That apart, Chandra Prakash was
identified by Pappu and the key of the godown was with
Page 15
15
the accused and he opened the lock of the said godown
from which 28 kattas of ammonium nitrate were
recovered. It was also clear from the evidence of
Chetandass Rawatani, PW-34, that the goods which were
recovered from the accused were utilized for the
preparation of the explosive substance.
14. On the basis of the aforesaid findings and conclusions,
the learned trial Judge convicted the accused persons and
sentenced them as has been stated hereinbefore.
15. Being grieved by the aforesaid conviction and sentence,
the accused persons preferred separate appeals before
the High Court being D.B. Criminal (Jail) Appeal No. 318 of
2000, D.B. Criminal Appeal Nos. 189 of 2000, 258 of 2000
and 369 of 2000. The State filed application for grant of
leave (D.B. Criminal Leave to Appeal No. 26 of 2008) with
an application for condonation of delay of seven years and
nine months which was taken up along with the appeals
preferred by the accused persons and the said appeal was
dismissed on the ground of delay. However, it may be
Page 16
16
stated here that the High Court also addressed to the
merits of the case of the State which pertained to
enhancement of sentence and did not find any substance
in the same. As regards the appeals preferred by the
accused persons, the appellate court did not perceive any
merit and, resultantly, dismissed the same by way of
judgment and order dated 3.2.2009. Hence, the assail is
to the judgment of conviction and order of sentence by
the applications of special leave petitions.
16. Leave granted in all the special leave petitions.
17. As all the appeals relate to defensibility of common
judgment passed by the High Court in respect of all the
accused-appellants, they are disposed of by a singular
judgment.
18. Mr. Sushil K. Jain, learned senior counsel for the
appellants, criticizing the judgment of the trial court and
that of the High Court, has raised the following
contentions: -
Page 17
17
(a) The learned trial Judge as well as the High Court
committed grave error by coming to hold that sanction
given under Section 7 of the 1908 Act cannot be found
fault with, though the District Magistrate, Jaipur was not
examined as a witness to prove the order of sanction.
(b) The recovery made from the appellant, Chandra
Prakash, at the instance of information given by Pappu
would not be admissible in evidence because at the time
of giving information, Pappu was an accused and had not
been treated as an approver which was done later on by
virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he
was not aware about the contents of the box that he was
asked to carry by the other accused persons.
(c) The alleged recovery of ammonium nitrate from the
custody of accused, Chandra Prakash, either at the
instance of Pappu @ Saleem, PW-1, or by the accusedappellant
cannot be accepted because Pappu @ Saleem,
PW-1 is an accomplice and in absence of any
Page 18
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corroboration, his evidence has to be thrown overboard
and further the case of prosecution that at the instance of
the accused articles were discovered is to be rejected
inasmuch as Section 27 of the Evidence Act, 1872 could
not have been made applicable to the facts of the present
case, for Chandra Prakash had not been arrested by the
time the alleged discovery took place.
(d) Assuming the ammonium nitrate was recovered from
the custody of Chandra Prakash, the same would not
make out any offence punishable under any of the
provisions of the 1908 Act or the 1884 Act, for the simple
reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the
1908 Act as well as Section 9B of the 1884 Act are
stretched, it would not bring in its sweep the simple act of
sale by Chandra Prakash without any intention or
knowledge about its use.
(e) No independent charges were framed against the
accused-appellant under Sections 3, 4 and 5 of the 1908
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19
Act but along with Section 6 of the 1908 Act and,
therefore, conviction under the said provision is absolutely
fallacious.
19. Mr. Balaji Srinivasan, learned counsel appearing for the
appellants, Abdul Hamid and Raies Beg, submitted as
under:-
(A) The prosecution has failed to prove the nexus of the
accused-appellants with the co-accused Abdul Mateen
in the crime and nothing has been brought on record to
establish the allegations. The only evidence that has
been recorded is that Abdul Hamid used to meet
Abdul Mateen frequently at village Farah.
(B) There is no recovery of explosive substance or any
incriminating materials from the appellant’s house and in
the absence of any recovery, the appellant cannot be
roped in the crime.
(C) The allegation of the prosecution with regard to the
relation of the appellant with Abdul Mateen does not have
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any substance and, in any case, there is no proof to
establish the same.
(D) The bomb blast at SMS Stadium, Jaipur took place on
26.01.1996 and the accused was arrested on 8.06.1997
and identification parade was conducted on 25.06.1997
about one and half years after the incident. This aspect
vitiates the identification parade and creates a dent in the
case of the prosecution for which the appellants should be
given the benefit of doubt.
20. Mr. Atul Kumar, learned counsel appearing for the
appellant Abdul Mateen, in addition to the contentions
raised by Mr. Jain and Mr. Balaji, has contended that no
consent has been taken under Section 7 of the 1908 Act
from the Central Government and hence, the entire trial is
vitiated.
21. Dr. Manish Singhvi, learned Additional Advocate
General appearing for the State of Rajasthan, supporting
Page 21
21
the judgment of the High Court, has submitted as follows:
-
(i) The sanction given by the District Magistrate, on a
perusal, would show application of mind and, by no
stretch of imagination, it can be regarded as invalid in
law.
(ii) The recovery at the instance of an accused under
Section 27 of the Indian Evidence Act is admissible in
evidence and the information given by Pappu, PW-1,
which led to the recovery of huge quantity of explosives
would per se be admissible in evidence and this
evidence is not to be treated as inadmissible merely
because the accused at the relevant point of time had
subsequently become the approver.
(iii) The recovery of explosives by the accused, Chandra
Prakash, by opening the keys of the godown would be a
relevant fact and admissible under Section 8 of the
Evidence Act, irrespective of the fact that the conduct
Page 22
22
falls within the purview of Section 27 of the Evidence
Act.
(iv) The recovery of the explosive substance has been
made by the police vide memo Ex. P-42 during the
search and seizure operations. Chetan Das Rawatani,
PW-34, Explosive Expert, has stated that the articles
recovered in Ex. P-42 were explosive articles and the
same has also been proved by the FSL Report, Ex. P-
234.
(v) The evidence of the approver Pappu, PW-1, is
admissible as substantive evidence u/s 133 of the
Evidence Act. In the evidence of the approver, it has
been mentioned that the accused, Chandra Prakash,
was engaged in the supply of materials for solicitation
of money for the commission of offence under the 1908
Act. Possession of huge quantity of ammonium nitrate
without any plausible explanation by the accused,
Chandra Prakash, corroborates the evidence of the
approver.
Page 23
23
22. First, we shall deal with the issue of sanction. Section 7
of the 1908 Act reads as follows: -
“7. Restriction on trial of offences. – No Court
shall proceed to the trial of any person for an
offence against this Act except with the consent of
the District Magistrate.”
23. The learned counsel for Abdul Mateen has submitted
that no consent has been granted by the Central
Government. In this context, we may refer to the decision
in State of M.P. v. Bhupendra Singh1. In the said case,
the consent for the prosecution was granted by the
Additional District Magistrate by notification dated
24.4.1995 issued by the State Government. The High
Court has quashed the proceeding as there was no
sanction. This Court concurred with the said view on the
ground that it was within the domain of the Central
Government to delegate the authority and, in fact, the
Central Government vide notification dated 2.12.1978 has
entrusted to the District Magistrates in the State of
Madhya Pradesh its consent under Section 7 of the 1908
1 (2000) 1 SCC 555
Page 24
24
Act. Thus, there could be delegation by the Central
Government to the District Magistrates.
24. It is relevant to note here that the consent was given by
the concerned District Magistrate as Ext. P-277/278. His
authority was not questioned. What was urged before the
Court was that there had been no application of mind
inasmuch as the relevant materials were not placed
before him while according sanction. When such a point
was not raised, the consequences have to be different. In
this regard, reference to a two-Judge Bench decision in
Erram Santosh Reddy and others v. State of Andhra
Pradesh2 would be appropriate. In the said case, the
Court has observed as follows: -
“7. The last submission is that no sanction was
obtained from the Central Government as laid
down under Section 7 of the Explosive Substances
Act for prosecuting the appellants for the offences
under the Explosive Substances Act. From the
judgment we do not find that any such objection
was taken. In any event from the record we find
that the Collector granted permission and this
must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
2 (1991) 3 SCC 206
Page 25
25
25. From the aforesaid, we come to the conclusion that the
District Magistrate had the authority to give consent for
the prosecution.
26. The next facet of the challenge pertaining to sanction is
that the sanctioning authority had not perused the
relevant materials. The learned trial Judge, upon scrutiny
of Ext. P-277/278, has expressed the opinion that the
approval had been granted after perusal of the materials
on record. The High Court has observed that the
consent/sanction order is a self-speaking and detailed
one. It has also been held that all the facts have been
taken into consideration by the District Magistrate and the
entire police diary was made available to him at the time
of grant of sanction/approval. With regard to the authority
of consent as postulated in the 1908 Act, reference to
certain authorities would be fruitful. In State of Tamil
Nadu v. Sivarasan alias Raghu alias Sivarasa and
others3, the Court, while dealing with the effect of Section
7 of the 1908 Act, has observed as follows: -
3 (1997) 1 SCC 682
Page 26
26
“Section 7 does not require a sanction but only
consent for prosecuting a person for an offence
under the Explosive Substances Act. The object of
using the word “consent” instead of “sanction” in
Section 7 is to have a purely subjective
appreciation of the matter before giving the
necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the
Collector for prosecuting the accused for the
offence punishable under the Explosive
Substances Act it was necessary for the
investigating officer to submit the statements of
witnesses also, who had deposed about the
movements of the accused and their activity of
manufacturing bombs and grenades. We,
therefore, hold that the consent given by the
Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted
by the District Magistrate in the obtaining factual matrix
cannot be treated as vitiated.
29. The third aspect of challenge to the sanction is that the
District Magistrate has not been examined as a witness to
prove the order of sanction. On a perusal of the
document, we find that the same has been proven by the
competent person and the document has been marked as
Ext. P-277/278. We are of the considered opinion that the
Page 27
27
examination of the District Magistrate to prove his consent
is really not necessary.
30. In view of the aforesaid analysis, the submission
relating to the invalidity of the consent, as stipulated in
Section 7 of the 1908 Act, does not commend us and,
accordingly, the same stands rejected.
31. The next issue, to which we should advert to, pertains
to the delay in holding the test identification parade. The
submission of Mr. Balaji Srinivasan, learned counsel
appearing for accused Abdul Hamid and Raies Beg, is that
there has been enormous delay in conducting the test
identification parade in respect of accused Abdul Hamid
and Raies Beg. There is no dispute that both of them
were arrested on 8.6.1997 and the test identification
parade was held on 25.6.1997. Thus, it is evident that
they were arrested long after the occurrence but the test
identification parade was held within a period of three
weeks from the date of arrest. As the analysis of the trial
court shows, they could not have been arrested as the
Page 28
28
materials could not be collected against them and things
got changed at a later stage. In this regard, we may refer
with profit to the decision in Ramanand Ramnath v.
State of M.P.4, wherein identification parade was held
within a period of one month from the date of arrest. This
Court observed that there was no unusual delay in holding
the test identification parade.
32. That apart, the witnesses, namely Prem Prakash Gupta,
PW-78, and Mohit Jain, PW-30, have identified them in the
Court. In State of Maharashtra v. Suresh5, it has been
held as follows: -
“We remind ourselves that identification parades
are not primarily meant for the court. They are
meant for investigation purposes. The object of
conducting a test identification parade is twofold.
First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in
connection with the commission of the crime.
Second is to satisfy the investigating authorities
that the suspect is the real person whom the
witnesses had seen in connection with the said
occurrence.”
4 (1996) 8 SCC 514
5 (2000) 1 SCC 471
Page 29
29
33. The said legal position has been reiterated in Anil
Kumar v. State of U.P.6 Recently, in Munna Kumar
Upadhyay alias Munna Upadhyaya v. State of
Andhra Pradesh through Public Prosecutor,
Hyderabad, Andhra Pradesh7, a two-Judge Bench has
observed thus: -
“66. There was some delay in holding the
identification parade. But the delay per se cannot
be fatal to the validity of holding an identification
parade, in all cases, without exception. The
purpose of the identification parade is to provide
corroborative evidence and is more confirmatory
in its nature. No other infirmity has been pointed
out by the learned counsel appearing for the
appellant, in the holding of the identification
parade. The identification parade was held in
accordance with law and the witnesses had
identified the accused from amongst a number of
persons who had joined the identification parade.”
34. In view of the aforesaid, the submission that there has
been delay in holding the test identification parade does
not really affect the case of the prosecution. It is also
noteworthy that the witnesses had identified the accused
persons in court and nothing has been elicited in the
6 (2003) 3 SCC 569
7 (2012) 6 SCC 174
Page 30
30
cross-examination even to create a doubt. Thus, we repel
the submission advanced by the learned counsel for
accused Abdul Hamid and Raies Beg.
35. The next facet to be addressed is whether the
evidentiary value of the testimony of approver Pappu, PW-
1, is required to be considered. Learned counsel for the
State has drawn our attention to Section 133 and
illustration (b) to Section 114 of the Indian Evidence Act,
1872. They read as under: -
“133. Accomplice .- An accomplice shall be a
competent witness against an accused person;
and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an
accomplice."
Illustration (b) to Section 114
“(b) The Court may presume that an accomplice is
unworthy of credit, unless he is corroborated in
material particulars.”
36. The aforesaid two provisions came to be considered in
Bhiva Doulu Patil v. State of Maharashtra8 wherein
the Court held as follows: -
8 AIR 1963 SC 599
Page 31
31
“The combined effect of Sections 133 and
Illustration (b) to Section 114, may be stated as
follows:
According to the former, which is a Rule of
law, an accomplice is competent to give evidence
and according to the latter, which is a Rule of
practice it is almost always unsafe to convict upon
his testimony alone. Therefore, though the
conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the
courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration
in material particulars.”
37. In Mohd. Husain Umar Kochra etc. v. K.S.
Dalipsinghji and another etc.9, the Court observed
thus: -
“... The combined effect of Sections 133 and 114,
Illustration (b) is that though a conviction based
upon accomplice evidence is legal, the Court will
not accept such evidence unless it is corroborated
in material particulars. The corroboration must
connect the accused with the crime. It may be
direct or circumstantial. It is not necessary that
the corroboration should confirm all the
circumstances of the crime. It is sufficient if the
corroboration is in material particulars. The
corroboration must be from an independent
source. One accomplice cannot corroborate
another.”
9 (1969) 3 SCC 429
Page 32
32
38. Having stated the legal position with regard to the
statutory provisions, presently we shall proceed to
consider the requisite tests to be applied to accept the
credibility of the testimony of the approver. At this
juncture, we may sit in a time machine and quote a
passage from Sarwan Singh S/o Rattan Singh v. State
of Punjab10 wherein it has been held as follows: -
“...An accomplice is undoubtedly a competent
witness under the Indian Evidence Act. There can
be, however, no doubt that the very fact that he
has participated in the commission of the offence
introduces a serious stain in his evidence and
Courts are naturally reluctant to act on such
tainted evidence unless it is corroborated in
material particulars by other independent
evidence. It would not be right to expect that such
independent corroboration should cover the whole
of the prosecution story or even all the material
particulars. If such a view is adopted it would
render the evidence of the accomplice wholly
superfluous. On the other hand, it would not be
safe to act upon such evidence merely because it
is corroborated in minor particulars or incidental
details because, in such a case, corroboration does
not afford the necessary assurance that the main
story disclosed by the approver can be reasonably
and safely accepted as true. But it must never be
forgotten that before the court reaches the stage
of considering the question of corroboration and
its adequacy or otherwise, the first initial and
10 AIR 1957 SC 637
Page 33
33
essential question to consider is whether even as
an accomplice the approver is a reliable witness. If
the answer to this question is against the approver
then there is an end of the matter, and no
question as to whether his evidence is
corroborated or not falls to be considered. In other
words, the appreciation of an approver's evidence
has to satisfy a double test. His evidence must
show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is
satisfied the second test which still remains to be
applied is that the approver's evidence must
receive sufficient corroboration. This test is special
to the cases of weak or tainted evidence like that
of the approver.
8...Every person who is a competent witness is not
a reliable witness and the test of reliability has to
be satisfied by an approver all the more before the
question of corroboration of his evidence is
considered by criminal courts”.
39.In Ravinder Singh v. State of Haryana11, this Court has
observed that: -
“An approver is a most unworthy friend, if at all,
and he, having bargained for his immunity, must
prove his worthiness for credibility in court. This
test is fulfilled, firstly, if the story he relates
involves him in the crime and appears intrinsically
to be a natural and probable catalogue of events
that had taken place. … Secondly, once that
hurdle is crossed, the story given by an approver
so far as the accused on trial is concerned, must
implicate him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt.”
11 (1975) 3 SCC 742
Page 34
34
40. Similar principles have been reiterated in Mrinal Das
and Ors. v. State of Tripura12.
41. In A. Devendran v. State of T.N.13, the Court has
registered the view that there cannot be any dispute with
regard to the proposition that ordinarily an approver’s
statement has to be corroborated in material particulars.
Certain clinching features of involvement disclosed
directly to an accused by an approver must be tested qua
each accused from independent credible evidence and on
being satisfied, the evidence of an approver can be
accepted. The Court further observed that the extent of
corroboration that is required before the acceptance of
the evidence of the approver would depend upon the facts
and circumstances of the case, however, the
corroboration required must be in material particulars
connecting each of the accused with the offence, or in
other words, the evidence of the approver implicating
12 AIR 2011 SC 3753
13 (1997) 11 SCC 720
Page 35
35
several accused persons in the commission of the offence
must not only be corroborated generally but also qua each
accused but that does not mean that there should be
independent corroboration of every particular
circumstance from an independent source. The court
proceeded to state that all that is required is that there
must be some additional evidence rendering it probable
that the story of the accomplice is true and the
corroboration could be both by direct or circumstantial
evidence. Be it noted, the said principle was stated on the
basis of pronouncements in Ramanlal Mohanlal Pandya
v. State of Bombay14, Tribhuvan Nath v. State of
Maharashtra15, Sarwan Singh v. State of Punjab
(supra), Ram Narain v. State of Rajasthan16 and
Balwant Kaur v. Union Territory of Chandigarh17.
42. In Chandan and another v. State of Rajasthan18,
the Court held that so far as the question about the
14 AIR 1960 SC 961
15 (1972) 3 SCC 511
16 (1973) 3 SCC 805
17 (1988) 1 SCC 1
18 (1988) 1 SCC 696
Page 36
36
conviction based on the testimony of the accomplice is
concerned, the law is settled and it is established as a rule
of prudence that the conviction could only be based on
the testimony of the accomplice if it is thought reliable as
a whole and if it is corroborated by independent evidence
either direct or circumstantial, connecting the accused
with the crime.
43.In Haroon Haji Abdulla v. State of Maharashtra19, the view
in this regard was expressed in the following terms: -
“An accomplice is a competent witness and his
evidence could be accepted and a conviction
based on it if there is nothing significant to reject
it as false. But the rule of prudence, ingrained in
the consideration of accomplice evidence, requires
independent corroborative evidence first of the
offence and next connecting the accused, against
whom the accomplice evidence is used, with the
crime.”
44. In Major E.G. Barsay v. State of Bombay20, it has
been observed that this Court had never intended to lay
down that the evidence of an approver and the
corroborating pieces of evidence should be treated in two
19 AIR 1968 SC 832
20 AIR 1961 SC 1762
Page 37
37
different compartments, that is to say, the court shall first
have to consider the evidence of the approver dehors the
corroborated pieces of evidence and reject it if it comes to
the conclusion that his evidence is unreliable; but if it
comes to the conclusion that it is reliable, then it will have
to consider whether that evidence is corroborated by any
other evidence.
45. In Renuka Bai alias Rinku alias Ratan and another
v. State of Maharashtra21, the Court held that the
evidence of the approver is always to be viewed with
suspicion especially when it is seriously suspected that he
is suppressing some material facts.
46. In Ranjeet Singh and another v. State of
Rajasthan22, the Court observed that while looking for
corroboration, one must first look at the broad spectrum
of the approver’s version and then find out whether there
is other evidence to lend assurance to that version. The
nature and extent of the corroboration may depend upon
21 (2006) 7 SCC 442
22 (1988) 1 SCC 633
Page 38
38
the facts of each case and the corroboration need not be
of any direct evidence that the accused committed the
crime. The corroboration even by circumstantial evidence
may be sufficient.
47. Keeping in view the aforesaid principles which relate to
the acceptance of the evidence of an approver, we have
bestowed our anxious consideration and carefully perused
the judgment of the trial court and that of the High Court.
Learned counsel for the parties have taken us through the
evidence of Pappu @ Saleem, PW-1. He has clearly
deposed that Abdul Mateen who is also known as Iqbal,
used to visit the Madarsa at village Farah. Abdul Hameed
and Abdul Mateen were seen at village Farah many times
without any reason before the incicent. As far as Abdul
Hameed and Raies Beg are concerned, he has deposed
that both the accused used to go to the house of Chandra
Prakash in Roopwas to collect the “masala” in a cover
box. Both of them used to meet Abdul Mateen in the
Madarsa at village Farah on a number of occasions. He
Page 39
39
used to contact Abdul Mateen from Firozabad many times
and the watches fixed with bombs as timers were given at
Farah by Abdul Hameed to make the bomb. It has also
come out in his evidence that Pappu along with Accused
Raies Beg @ Raies Ahmad and other accused persons
used to visit the Madarsa at village Farah. His evidence
also shows that Raies Beg and Pappu used to bring
explosive from Roopwas to village Farah and he has
mentioned that Raies Beg had brought five boxes of
“masala” for Rs.10,000/- from the house of Chandra
Prakash and those boxes were unloaded at the Madarsa in
Farah. Pappu was asked to carry the boxes along with
Raies Beg and Abdul Hameed. He has clearly deposed
about the conspiracy that was told to him by accused
Abdul Mateen. As far as Chandra Prakash is concerned, it
had come in the evidence that though Pappu used to visit
his house at Roopwas along with other accused persons,
yet he used to stay outside the house of Chandra Prakash
and the others used to go to bring “masala” from the
house of Chandra Prakash. The alleged “masala” used to
Page 40
40
be brought in boxes from time to time to the associates of
Raies Beg and Abdul Hameed who used to come to
Madarsa at Farah.
48. From the analysis of the aforesaid evidence, it is clear
that Pappu as approver has implicated himself in the
crime. He has not made any effort to give any statement
which is exculpatory. He has spoken quite graphically
about the involvement of all the accused persons. Mr.
Jain, learned senior counsel appearing for the appellant,
would contend that he has used the word “masala” but
not ammonium nitrate, but Pappu has clarified that
though he was not aware what was contained in the
boxes, yet he was told by the other accused persons later
on that it contained certain explosive substances. The
said aspect has been corroborated from other ocular
evidence as well as the seizure.
49. Presently, we shall advert to the various facets of
corroboration in evidence against the accused persons.
As far as Chandra Prakash is concerned, on the basis of
Page 41
41
the approver Chandra Prakash was arrested on 1.8.1997
vide Ext.P-37. On the basis of the information of the
accused, Chandra Prakash, the Investigating Officer
searched his house and godown and recovered 28 boxes
of ammonium nitrate. It has come out in the evidence
that Chandra Prakash opened the lock of the godown the
key of which was in his possession. Bhup Singh, PW-32,
eye witness to the seizure of articles from the godown of
Chandra Prakash, has categorically stated that the
accused Chandra Prakash led to the recovery of red and
blue coloured bundles from the godown of the building.
The office of PW-32 was also in the said building. From
the godown, fuse wires and five kilograms of grey
coloured material was also recovered. The Investigating
Officer, M.M. Atray, PW-71, has also proven the factum of
recovery. Shivnath Kuriya, PW-22, who had accompanied
the investigating team, has deposed that the explosive
which was used in the live bomb had ammonium
nitrate/gelaltine. Chetan Das Rawatani, PW-34, who is an
expert witness in respect of explosives, approved his
Page 42
42
report Ext. P-49 and has deposed that the ammonium
nitrate that was seized from the godown of Chandra
Prakash was in such a condition that it could be used to
prepare a bomb.
50. Mr. Jain, as has been stated earlier, has seriously
criticized about the recovery from Chandra Prakash on the
ground that when he led to the discovery of the articles
seized, he was not arrested. In this context, we refer with
profit to the decision in Mohd. Arif alias Ashfaq v.
State (NCT of Delhi)23 wherein the Court opined thus: -
“The essence of the proof of a discovery under
Section 27 of the Evidence Act is only that it
should be credibly proved that the discovery made
was a relevant and material discovery which
proceeded in pursuance of the information
supplied by the accused in the custody. How the
prosecution proved it, is to be judged by the court
but if the court finds the fact of such information
having been given by the accused in custody is
credible and acceptable even in the absence of
the recorded statement and in pursuance of that
information some material discovery has been
effected then the aspect of discovery will not
suffer from any vice and can be acted upon.”
23 (2011) 13 SCC 621
51. In this context, we may refer to the authority in Vikram
Singh and others v. State of Punjab24, wherein while
interpreting Section 27 of the Evidence Act, the Court
opined that a bare reading of the provision would reveal
that a “person must be accused of any offence” and that
he must be “in the custody of a police officer” and it is not
essential that such an accused must be under formal
arrest.
52. In this regard, a passage from the Constitution Bench
decision in State of Uttar Pradesh v. Deoman
Upadhyaya25 is reproduced below: -
“The expression, "accused of any offence" in s. 27,
as in s. 25, is also descriptive of the person
concerned, i.e., against a person who is accused of
an offence, s. 27 renders provable certain
statements made by him while he was in the
custody of a police officer. Section 27 is founded
on the principle that even though the evidence
relating to confessional or other statements made
by a person, whilst he is in the custody of a police
officer, is tainted and therefore inadmissible, if the
truth of the information given by him is assured by
the discovery of a fact, it may be presumed to be
untainted and is therefore declared provable in so
far as it distinctly relates to the fact thereby
24 (2010) 3 SCC 56
25 AIR 1960 SC 1125
discovered. Even though s. 27 is in the form of a
proviso to s. 26, the two sections do not
necessarily deal with the evidence of the same
character. The ban imposed by s. 26 is against the
proof of confessional statements. Section 27 is
concerned with the proof of information whether it
amounts to a confession or not, which leads to
discovery of facts. By s. 27, even if a fact is
deposed to as discovered in consequence of
information received, only that much of the
information is admissible as distinctly relates to
the fact discovered.”
53. In Anter Singh v. State of Rajasthan26, after
referring to the decisions in Madan Singh v. State of
Rajasthan27, Mohd. Aslam v. State of Maharashtra28,
Pulukuri Kottaya v. Emperor29, Prabhoo v. State of
U.P.30 and Mohd. Inayatullah v. State of
Maharashtra31, this Court summed up the following
principles:-
“16. The various requirements of the section can
be summed up as follows:
(1) The fact of which evidence is sought to be
given must be relevant to the issue. It must be
borne in mind that the provision has nothing to
do with the question of relevancy. The
26 (2004) 10 SCC 657
27 (1978) 4 SCC 435
28 (2001) 9 SCC 362
29 AIR 1947 PC 67
30 AIR 1963 SC 1113
31 (1976) 1 SCC 828
relevancy of the fact discovered must be
established according to the prescriptions
relating to relevancy of other evidence
connecting it with the crime in order to make
the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in
consequence of some information received from
the accused and not by the accused’s own act.
(4) The person giving the information must be
accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of
information received from an accused in
custody must be deposed to.
(7) Thereupon only that portion of the
information which relates distinctly or strictly
to the fact discovered can be proved. The
rest is inadmissible.”
54. In this context, it would be fruitful to refer to the ruling
in State of Maharashtra v. Damu32 wherein it has been
observed that: -
32 (2000) 6 SCC 269
Page 46
46
“35. The basic idea embedded in Section 27 of
the Evidence Act is the doctrine of confirmation
by subsequent events. The doctrine is founded
on the principle that if any fact is discovered in
a search made on the strength of any
information obtained from a prisoner, such a
discovery is a guarantee that the information
supplied by the prisoner is true. The information
might be confessional or non-inculpatory in
nature, but if it results in discovery of a fact it
becomes a reliable information. Hence the
legislature permitted such information to be
used as evidence by restricting the admissible
portion to the minimum.”
55. In Aftab Ahmad Anasari v. State of Uttaranchal33,
after referring to earlier decisions, a two-Judge Bench,
appreciating the material brought on record, came to hold
that when the accused was ready to show the place where
he had concealed the clothes of the deceased, the same
was clearly admissible under Section 27 of the Evidence
Act because the same related distinctly to the discovery of
the clothes of the deceased from that very place.
56. In Bhagwan Dass v. State (NCT of Delhi)34, relying
on the decisions in Aftab Ahmad Anasari (supra) and
33 (2010) 2 SCC 583
34 (2011) 6 SCC 396
Manu Sharma v. State (NCT of Delhi)35, the Court
opined that when the accused had given a statement that
related to the discovery of an electric wire by which the
crime was committed, the said disclosure statement was
admissible as evidence.
57. As the material brought on record would show, the
accused was in the custody of the investigating agency
and the fact whether he was formally arrested or not will
not vitiate the factum of leading to discovery. However, it
may be stated that the accused was also arrested on that
day. We have dealt with the issue that formal arrest is not
necessary as Mr. Jain has seriously contended that the
arrest was done after the recovery. As we have clarified
the position in law, the same would not make any
difference.
58. As regards recovery from accused Abdul Mateen is
concerned, it is borne out from the record that after his
arrest on 28.6.1997, he gave information at 6.00 a.m. as
35 (2010) 6 SCC 1
contained in Ext. P-255, about another bomb and on the
basis of the said information the Investigating Officer, PW-
71, visited the spot along with the accused and at his
instance a live bomb was recovered which was
underneath the earth. In the said information the accused
had stated that the two bombs were inside the SMS
Stadium and he could verify the places by going inside the
stadium. In the evidence of Jai Narain, PW-6, Gopal Singh,
PW-7 and Shivnath, PW-22, it has come on record that the
bombs were recovered at the instance of accused Abdul
Mateen on 28.6.1998. This fact has been corroborated by
Vinod Sharma, PW-16 and Gordhan, PW-10 who also
accompanied the investigating team. Shivnath, PW-22,
had clearly stated that the bomb recovered was high
explosive time bomb and the battery was inside the timer
and the same was switched on and he further confirmed
that electric detonator was used in the bomb. Vinod
Kumar, PW-16, also stated that the electric detonator was
found in the bomb and the same was neutralized. Suresh
Kumar Saini, PW-67, in his deposition, gave description of
loss caused due to the explosion of the time bomb. He
had further deposed that lid of stainless steel of casio
watch had been recovered from the scene of crime.
59. On appreciating the aforesaid material, it is clear as
crystal that the said accused has stated about the fact of
planting of bomb at a particular site in the stadium and
led to the said place from which the bomb was recovered.
The submission of Mr. Jain is that such material cannot be
put against the accused being inadmissible in evidence.
In this context, we may refer to a two-Judge Bench
decision in Prakash Chand v. State (Delhi
Administration)36 wherein the Court, after referring to
the decision in Himachal Pradesh Administration v.
Om Prakash37, opined thus: -
“There is a clear distinction between the conduct
of a person against whom an offence is alleged,
which is admissible under Section 8 of the
Evidence Act, if such conduct is influenced by any
fact in issue or relevant fact and the statement
made to a Police Officer in the course of an
investigation which is hit by Section 162 of the
Criminal Procedure Code. What is excluded by
36 (1979) 3 SCC 90
37 (1972) 1 SCC 249
Section 162, Criminal Procedure Code is the
statement made to a Police Officer in the course of
investigation and not the evidence, relating to the
conduct of an accused person (not amounting to a
statement) when confronted or questioned by a
Police Officer during the course of an
investigation. For example, the evidence of the
circumstance, simpliciter, that an accused person
led a Police Officer and pointed out the place
where stolen articles or weapons which might
have been used in the commission of the offence
were found hidden, would be admissible as
conduct, under Section 8 of the Evidence Act,
irrespective of whether any statement by the
accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27
of the Evidence Act.”
60. The said principle has been reiterated in A.N.
Venkatesh and another v. State of Karnataka38.
61. Tested on the touchstone of the aforesaid enunciation
of law, the submission of Mr. Jain leaves us unimpressed
and we are inclined to hold that the said fact is a relevant
fact which is admissible in evidence.
62. The next aspect that is to be adverted to is that
ammonium nitrate not being an explosive substance,
mere possession cannot bring the accused Chandra
38 (2005) 7 SCC 714
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51
Prakash within the ambit of any offence. In this regard,
we may refer to Section 4(d) of the 1884 Act. It reads as
follows: -
“(d) “explosive” means gunpowder,
nitroglycerine, nitroglycol, guncotton, di-nitrotoluene,
tri-nitro-toluene, picric acid, di-nitrophenol,
tri-nitro-resorcinol (styphnic acid), cyclotrimethylene-
tri-nitramine, penta-erythritoltetranitrate,
tetryl, nitro-guanidine, lead azide,
lead styphynate, fulminate of mercury or any
other metal, diazo-di-nitro-phenol, coloured fires or
any other substance whether a single chemical
compound or a mixture of substances, whether
solid or liquid or gaseous used or manufactured
with a view to produce a practical effect by
explosion or pyrotechnic effect; and includes fogsignals,
fireworks, fuses, rockets, percussion-caps,
detonators, cartridges, ammunition of all
descriptions and every adaptation or preparation
of an explosive as defined in this clause;”
63. Section 2 of the 1908 Act, which deals with definitions,
reads as follows: -
“2. Definitions. - In this Act--
(a) the expression "explosive substance" shall be
deemed to include any materials for making
any explosive substance; also any apparatus,
machine, implement or material used, or
intended to be used, or adapted for causing,
or aiding in causing, any explosion in or with
any explosive substance; also any part of any
such apparatus, machine or implement;
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(b) the expression "special category explosive
substance" shall be deemed to include
research development explosive (RDX), penta
erythritol tetra nitrate (PETN), high melting
explosive (HMX), tri nitro toluene (TNT), low
temperature plastic explosive (LTPE),
composition exploding (CE) (2, 4, 6 phenyl
methyl nitramine or tetryl), OCTOL (mixlure
of high melting explosive and tri nitro
toluene), plastic explosive kirkee-1 (PEK-1)
and RDX/TNT compounds and other similar
type of explosives and a combination thereof
and remote control devices causing explosion
and any other substance and a combination
thereof which the Central Government may,
by notification in the Official Gazette, specify
tor the purposes of this Act.”
64. Keeping in view the broad definitions of both the Acts,
we are required to see what has been seized from the
accused Chandra Prakash. What is evincible from the
seizure report, Ext. P-42, apart from ammonium nitrate,
fuse wire and empty boxes were also seized. That apart,
17 packs containing blue coloured fuse wire kept in plastic
(polythene) bags and four boxes containing blue coloured
fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of
explosives detonating fuse measuring 1500 meters in
length and 38 kg in weight, containing four wooden logs of
red colour, 375 meter wire in each Gattha and black
coloured cap fitted on the tip of the wire, three cartons of
explosive Belgelative 90 (Gulla Dynamite) net weight of
each being 25 Kg. with “Division I Class II safety distance
category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on
each box, four packets of O.D. Detonator containing 1600
detonators, a substance of light yellow colour kept inside
a carton of paer in a plastic bag weighing nearly 5 kg and
16 empty cartons, one of gulla and 15 of fuse wire, were
seized.
65. Section 2 of the 1908 Act has a deeming provision
which states that explosive substance would include any
materials for making any explosive substance. Similarly,
Section 4(d) of the 1884 Act has a broader spectrum
which includes coloured fires or any other substances,
whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium
nitrate other articles had been seized. The combination of
Page 54
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the same, as per the evidence of the expert witness, was
sufficient to prepare a bomb for the purpose of explosion.
In addition to the same, huge quantity of ammonium
nitrate was seized and it was seized along with other
items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused
gives credence to the prosecution version that the
possession was conscious and it was intended to be used
for the purpose of the blast.
66. The next aspect which needs to be adverted to is nonframing
of specific charge. On a perusal of the record, we
find that the learned trial Judge has framed the charges
specifically by putting the charges to the accused. The
purpose of framing of charges is that the accused should
be informed with certainty and accuracy of the charge
brought against him. There should not be vagueness.
The accused must know the scope and particulars in
detail. In this context, we may refer to decision in
Page 55
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Santosh Kumari v. State of Jammu and Kashmir and
others39, wherein it has been held as follows: -
“17. Like all procedural laws, the Code of Criminal
Procedure is devised to subserve the ends of
justice and not to frustrate them by mere
technicalities. It regards some of its provisions as
vital but others not, and a breach of the latter is a
curable irregularity unless the accused is
prejudiced thereby. It places errors in the charge,
or even a total absence of a charge in the curable
class. That is why we have provisions like Sections
215 and 464 in the Code of Criminal Procedure,
1973.
18. The object of the charge is to give the accused
notice of the matter he is charged with and does
not touch jurisdiction. If, therefore, the necessary
information is conveyed to him in other ways and
there is no prejudice, the framing of the charge is
not invalidated. The essential part of this part of
law is not any technical formula of words but the
reality, whether the matter was explained to the
accused and whether he understood what he was
being tried for. Sections 34, 114 and 149 IPC
provide for criminal liability viewed from different
angles as regards actual participants, accessories
and men actuated by a common object or a
common intention; and as explained by a five-
Judge Constitution Bench of this Court in Willie
(William) Slaney v. State of M.P.40 SCR at p. 1189,
the charge is a rolled-up one involving the direct
liability and the constructive liability without
specifying who are directly liable and who are
sought to be made constructively liable.”
39 (2011) 9 SCC 234
40 AIR 1956 SC 116
67. In K. Prema S. Rao v. Yadla Srinivasa Rao41, the
Court opined that though the charge specifically under
Section 306 IPC was not framed, yet all the ingredients
constituting the offence were mentioned in the statement
of charges. In that context, a three-Judge Bench of this
Court ruled that mere omission or defect in framing of
charge does not disable the criminal court from convicting
the accused for the offence which is found to have been
proved on the evidence on record. The said principle has
been reiterated in Dalbir Singh v. State of U.P.42,
State of U.P. v. Paras Nath Singh43 and Annareddy
Sambasiva Reddy v. State of A.P.44.
68. In the case at hand, as has been stated earlier, the
charges have been framed and we do not find any
vagueness. That apart, neither any prejudice has been
caused nor has there been any failure of justice. Thus,
the submission of Mr. Jain in this regard leaves us
unimpressed.
41 (2003) 1 SCC 217
42 (2004) 5 SCC 334
43 (2009) 6 SCC 372
44 (2009) 12 SCC 546
Page 57
57
69. The next facet which deserves to be addressed pertains
to the criminal conspiracy. The submission of the learned
counsel for the appellants is that the learned trial Judge
has inappositely drawn certain inferences to show that
there was a criminal conspiracy and the High Court has,
without delving deep into the matter, concurred with the
same. As per the evidence brought on record, it is clear as
crystal that accused Abdul Mateen, Abdul Hamid and
Raies Beg used to meet quite frequently at the Madarsa at
village Farah. It is also evident from the deposition of
Kanchan Singh, PW-11, Shri Chand, PW-12, Murari Lal
Sharma, PW-13, and Ashok Kumar, PW-17, that the
accused Abdul Mateen, Raies Beg and Abdul Hamid used
to meet at the Madarsa at village Farah. That apart,
Pappu had also deposed implicating himself that when
there used to be discussion at madarsa in the village
Farah about the suitable place for planting the bomb, the
timer of the bomb was supplied by Dr. Abdul Hamid. The
chain of events and the participation of the accused
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persons which had the genesis in the discussion and the
meetings, the purchase of ammonium nitrate and other
items, carrying of the boxes to the Madarsa and all other
factors cumulatively show that there was conspiracy.
70. While dealing with the facet of criminal conspiracy, it
has to be kept in mind that in case of a conspiracy, there
cannot be any direct evidence. Express agreement
between the parties cannot be proved. Circumstances
proved before, during and after the occurrence have to be
considered to decide about the complicity of the accused.
Such a conspiracy is never hatched in open and,
therefore, evaluation of proved circumstances play a vital
role in establishing the criminal conspiracy. In this
context, we may refer with profit to a passage from
Yogesh alias Sachin Jagdish Joshi v. State of
Maharashtra45: -
“20. The basic ingredients of the offence of
criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the agreement must
relate to doing or causing to be done either (a) an
illegal act; or (b) an act which is not illegal in itself
45 (2008) 10 SCC 394
Page 59
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but is done by illegal means. It is, therefore, plain
that meeting of minds of two or more persons for
doing or causing to be done an illegal act or an act
by illegal means is sine qua non of criminal
conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi v. State of
Maharashtra46 a conspiracy is always hatched in
secrecy and it is impossible to adduce direct
evidence of the common intention of the
conspirators. Therefore, the meeting of minds of
the conspirators can be inferred from the
circumstances proved by the prosecution, if such
inference is possible.”
71. The same principles have been stated in Pratapbhai
Hamirbhai Solanki v. State of Gujarat and another47.
72. In Yakub Abdul Razak Menon v. The State of
Maharashtra, through CBI, Bombay48, analyzing
various pronouncements, this Court opined thus: -
“68. For an offence Under Section 120B Indian
Penal Code, the prosecution need not necessarily
prove that the conspirators expressly agreed to do
or cause to be done the illegal act, the agreement
may be proved by necessary implication. It is not
necessary that each member of the conspiracy
must know all the details of the conspiracy. The
offence can be proved largely from the inferences
drawn from the acts or illegal omission committed
by the conspirators in pursuance of a common
design. Being a continuing offence, if any acts or
46 (1980) 2 SCC 465
47 (2013) 1 SCC 613
48 2013 (3) SCALE 565
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omissions which constitute an offence are done in
India or outside its territory, the conspirators
continuing to be the parties to the conspiracy and
since part of the acts were done in India, they
would obviate the need to obtain the sanction of
the Central Government. All of them need not be
present in India nor continue to remain in India.
The entire agreement must be viewed as a whole
and it has to be ascertained as to what in fact the
conspirators intended to do or the object they
wanted to achieve. (Vide: R.K. Dalmia v. Delhi
Administration49, Lennart Schussler and
Anr. v. Director of Enforcement and Anr.50,
Shivanarayan Laxminarayan Joshi v. State of
Maharashtra and Mohammad Usman
Mohammad Hussain Maniyar and
Anr. v. State of Maharashtra51).”
73. Testing the present factual matrix on the anvil of the
aforesaid enunciation of law, we are of the considered
view that the opinion expressed by the learned trial Judge
as well as by the High Court that there has been
conspiracy between the parties to commit the blast on a
particular day cannot be found fault with.
74. Presently, we shall engage ourselves to deal with the
conviction of accused Abdul Mateen for the offence under
49 AIR 1962 SC 1821
50 (1970) 1 SCC 152
51 AIR 1981 SC 1062
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Section 14 of the Foreigners Act, 1946. The said provision
reads as under: -
“14. Penalty for contravention of provisions
of the Act, etc. - whoever –
(a) Remains in any area in India for a period
exceeding the period for which the visa was
issued to him;
(b) does any act in violation of the conditions of
the valid visa issued to him from his entry and
stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of
any order made thereunder or any direction
given in pursuance of this Act or such order for
which no specific punishment is provided under
this Act, shall be punished with imprisonment
for a term which may extend to five years and
shall also be liable to fine; and if he has entered
into a bond in pursuance of clause (f) of subsection
(2) of section 3, his bond shall be
forfeited, and any person bound thereby shall
pay the penalty thereof or show cause to the
satisfaction of the convicting court why such
penalty should not be paid by him.
Explanation. – For the purposes of this section,
the expression “visa” shall have the same
meaning as assigned to it under the Passport
(Entry into India) Rules, 1950 made under the
Passport (Entry into India) Act, 1920 (34 of
1920).”
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75. The learned trial Judge, analyzing the material on
record, has come to hold that the said Abdul Mateen is a
resident of Pakistan and he had no valid document to be
in India. In his statement under Section 313 of the Code,
he had not disputed that he was not having passport or
visa and he is of Pakistan nationality. Thus, the offence
under the said Act has been held to be proved. The High
Court has concurred with the said view. In our considered
opinion, the offence under the said Act has been proved
beyond reasonable doubt.
76. In view of the aforesaid analysis, we conclude and hold
that the grounds assailing the judgment of conviction and
the order of sentence have no legal substantiality and,
accordingly, they are rejected.
77. The factual scenario of the instant case compels us to
state that these kinds of activities by anyone breeds
lawlessness, fear and affects the fundamental unity of our
great country. A nation with a desire to prosper is
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required to maintain high degree of law and order
situation apart from respecting “imperatives of
internationalism”. Certain individuals harbouring
unacceptable notions and inexcusable philosophy and, on
certain occasions, because of enormous avarice, try to
jeopardize the cohesive and collegial fabric of the State.
This leads to national decay and gives rise to
incomprehensible anarchy. It reflects non-reverence for
humanity. Be it categorically stated, every citizen of this
country is required to remember that national patriotism
is founded on the philosophy of public good. Love for
one’s country and humanity at large are eternally
cherished values. The infamous acts of the appellants are
really condemnable not only because of the dent they
intended to create in the social peace and sovereignty of
the nation, but also from the humane point of view as
they are founded on greed, envy, baseless anger, pride,
prejudice and perverse feelings towards mankind.
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78. We have, in agony and anguish, have expressed thus
because when a devastating activity like the present one
occurs on the Republic Day of our country Bharat, it
injures the nationality, disturbs the equilibrium of each
individual citizen, creates a concavity in the equanimity of
the peace of the State, generates a stir in the sanctity and
divinity of law and order situation which is paramount in
any civilized State, attempts to endanger the economic
growth of a country and, in the ultimate eventuate,
destroys the conceptual normalcy of any habitat. Law
cannot remain silent to this because it is the duty of law to
resist such attacks on peace. It is manifest that the
accused-appellants had conspired to send a savage stir
among the citizenry of this country on the Republic Day.
The great country like ours cannot succumb to this kind of
terrorist activity as it is nationally as well as
internationally obnoxious. Such tolerance would
tantamount to acceptance of defeat. The iron hands of
law has to fall and in the obtaining facts and
circumstances, as the charges have been proved beyond
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reasonable doubt, the law has rightly visited the
appellants and, accordingly, we concur with the same.
79. Consequently, all the appeals, being bereft of merit,
stand dismissed.
………………………………J.
[K.S. Radhakrishnan]
………………………………J.
[Dipak Misra]
New Delhi;
May 9, 2014.
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