Bangalore District Court
On The Disclosure Made By Him vs No.1 And Proved The Said Facts With ... on 3 March, 2023
KABC010212632013
IN THE COURT OF XLIX ADDL. CITY CIVIL AND SESSIONS
JUDGE [SPECIAL COURT FOR TRIAL OF NIA CASES],
(CCH-50) BENGALURU
DATED : This 23rd day of February, 2023
PRESENT:
SRI GANGADHARA C.M.,
B.Com., LL.B.,
XLIX Additional City Civil & Sessions Judge,
[Special Judge for trial of NIA Cases],
(CCH-50) Bengaluru.
S.C.No.297/2013
The State of Karnataka
By Adugodi Police Station,
CCB (Organized Crime Wing),
Bengaluru. ... Complainant
(By : Learned Spl. Public Prosecutor)
V/s.
Sri Syed Abdul Rehaman
@ Abdul Rehaman,
S/o Syed Ibrahim,
Aged about 25 years,
R/at No.8, 1st Cross, Tippu Nagar,
Mysuru Road, Bengaluru.
... Accused No.1
Sri Mohammed Fahad Hi
@ Mohammed Koya,
S/o Abdul Hi @ Abdul Koya,
Aged about 30 years,
No.2108717948-5, Citizen of Pakistan
No.K-366, Block - F, North Nizamabad
Karachi, Pakistan.
(UTP NO.11473), Gulbarga Jail. ... Accused No.2
2
S.C.No.297/2013
Sri Apsarpasha @ Khushiruddin,
S/o Noor Ahmed, Aged about 32 years,
R/at 15th Cross, Lakasandra,
Bengaluru.
Home Town : Chintamani,
(UTP No.19040, Gulbarga Jail).
... Accused No.3
(Accused Nos.1 & 3 by Sri. T.A., Adv.,
Accused No.2 by Sri S.A., Adv.)
1. Nature of Offence : U/S.120-B, 121, 121-A, 122,
124-A, 153-A, 153-B r/w
S.34 of the IPC, Ss.3, 25 and
26 of Arms Act, 1959, Ss.4, 5
and 6 of the Explosive
Substances Act, 1908 and
Ss.3, 11, 13, 16, 17, 18 &
18-B of Unlawful Activities
(Prevention) Act, 1967.
2. Date of Commission of : From 2011 till 07.05.2012
Offence
3. Date of F.I.R. 07.05.2012
4. Date of Arrest of the : A.1 arrested on 07.05.2012
Accused A.2 & A.3 were secured under
body warrant on 19.05.2012.
5. Name of the complainant : Sri K.C. Ashokan
6. Date of Commencement :
of Evidence 07.04.2021
7. Date of Closure of :
Evidence 02.11.2022
8. Date of pronouncement : 23.02.2023
of Judgment
Order on sentence 03.03.2023
:
pronounced
3
S.C.No.297/2013
9. Result of the Case : Accused No.1 to 3 are hereby
acquitted for the offences
punishable under Sections
121, 121-A, 153-A and 153-B
of IPC and Section 3, 11 and
16 of U.A.(P) Act.
Acting under Section 235(2)
of the Cr.P.C., accused No.1
is convicted for the offences
punishable under Sections
120-B and 122 of IPC,
Section 13, 17 and 18 of U.A.
(P) Act, 25 and 26 of Arms
Act and Section 4, 5 and 6 of
Explosive substances Act
1908.
Acting under Section 235(2)
of the Cr.P.C., accused No.2
is convicted for the offences
punishable under Sections
120-B and 122 of IPC,
Section 13, 17, 18 and 18(B)
of U.A.(P) Act and Section 4,
5 and 6 of Explosive
substances Act 1908.
Acting under Section 235(2)
of the Cr.P.C., accused No.3
is convicted for the offences
punishable under Sections
120-B and 122 of IPC,
section 13, 17, 18 and 18(B)
of U.A.(P) Act and Section 4,
5 and 6 of Explosive
Substances Act 1908.
(GANGADHARA C.M.),
XLIX Addl. City Civil & Sessions Judge,
(Special Judge for trial of NIA Cases),
(CCH-50) - Bengaluru.
4
S.C.No.297/2013
JUDGMENT
The Assistant Commissioner of Police, Central Crime Branch (Organized Crime Wing), Bengaluru - Sri N. Chalapathi has submitted the charge-sheet against the accused persons for the offences punishable under sections 120-B, 121, 122, 124-A, 153- A, 153-B r/w section 34 of the Indian Penal Code 1860 (hereinafter referred to as 'IPC' for short), sections 3, 25 and 26 of Arms Act, 1959, sections 4, 5 and 6 of the Explosive Substances Act, 1908 and Sections 3, 11, 13, 16, 17, 18 and 18-B of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'U.A. (P) Act' for short).
2. The brief facts of the prosecution case are as follows :-
On 07.05.2022, at around 04.00 p.m., PW.2 - Sri K.C. Ashokan, Inspector of Police, CCB, Bengaluru received a credible information that one Abdul Rehaman a resident of Tippu Nagar, Chamarajpet has an illegal fire arm in his possession, suspected to be supplied by Lasker-e-Toiba (LeT) operatives from Pakistan and most of the time, he moves in and around Nanjappa Layout, Jumma Mosque area. He was further informed that the said Abdul Rehaman is a notorious criminal and an accused in 2 to 3 cases of Chanda Layout, Kengeri and other Police Stations for theft of motor cycles and supply of fire arms to notorious criminal by name Ikram @ Akram who was killed in a police encounter in the year 2011. He was further informed that the said Abdul Rehaman came in contact with fellow prisoners by name Fahad a Pakistani National and his associate Afsar, a convict prisoner who indoctrinated him at the prison in Muslim religious fundamentalism 5 S.C.No.297/2013 and hatred towards Hindu religion and carry out Jihad against India and introduced him through phone to LeT operatives operating from Pakistan and UAE. He was further informed that after the said Abdul Rehaman was released on bail, he continued constant contact with LeT operatives who were frequently supplying him money to recruit other Muslim youths as members to LeT cadre, to act in accordance with their direction, to blast vital installations in Bengaluru and to Kill prominent Hindu Activists to incite communal clashes and hatred between Hindus and Muslims in Bengaluru City and to wage war against India. Immediately, the first informant informed about the receipt of the said information to his superior officer upon which, he set up a special team comprising himself, PW.12 - Sri Balaraju P.I. CCB, (OCW), CW.36- Sri Balegowda, P.I. Subramanyapura police station, CW.37 - Sri N.B. Sakri, P.I., CCB (OCW), Bengaluru and PW.10 - Sri Vijaykumar, P.C., CCB (OCW), Bengaluru to arrest the said accused. He secured PW.1 - Sri Abdul Samad and CW.3 - Sri Chandregowda to his office as panchas. The team of the first informant and panchas rushed to the spot in search of the said Abdul Rehaman. At around 06.15 p.m., the first informant and his team located the said Abdul Rehaman who was standing near Venkob Chicken Center at Nanjappa Layout and apprehended him. During enquiry, he disclosed his name and address.
The first informant searched the said Abdul Rehaman in person and found 0.32 caliber revolver loaded with four live bullets, one Red and black colour Nokia mobile with dual SIM bearing Mobile Nos.9060729118 and 8220120820, one black colour Nokia mobile with dual SIM bearing Mobile 6 S.C.No.297/2013 Nos.9035698554 and 9880979347 and cash of Rs.540/- in the possession of the said Abdul Rehaman. The first informant seized the aforesaid articles under a panchanama - Ex.P.1 in the presence of PW.1 and CW.3 between 06.15 p.m. and 07.15 p.m. Thereafter, the first informant and his team took the said Abdul Rehaman and seized articles to Adugodi Police Station and handed over the seized articles along with Ex.P.1 - mahajar to PW.20 - Sri R. Manjunath, Inspector of Police, Adugodi Police Station and lodged the first information statement as per Ex.P.2 with PW.20.
Based on the said first information statement, PW.20 registered a case in Crime No.106/2012 for the offences punishable under sections 120-B, 121, 122, 124-A, 153-A, 153-B r/w section 34 of the IPC and sections 25 and 26 of Arms Act, 1959 and took up the matter for investigation. He arrested accused No.1 - Abdul Rehaman and subjected the said seized articles to P.F.No.113/2012 and submitted the same to the Court.
On 08.05.2012, the Commissioner of Police issued a memo to PW.20 - Sri R. Manjunath to hand over the case papers to PW.21 - Sri Chalapathi, ACP (OCW), Bengaluru to continue further investigation. Accordingly, on the same day, PW.20 handed over the case papers, seized articles and accused No.1 - Abdul Rehaman to PW.21. PW.21 recorded the voluntary statement of accused No.1 and produced him before the learned 1 st Additional Chief Metropolitan Magistrate, Bengaluru (for short '1 st ACMM Court'). Accused No.1 was remanded to police custody on the application filed by PW.21. Accused No.1 - Abdul Rehaman 7 S.C.No.297/2013 disclosed in his voluntary statement to show the places where he collected money, incriminating articles and where he hid the said articles. Therefore, PW.21 secured CW.4 - Sri Mahesh and CW.5 - Sri Manju and visited Jnana Bharathi University Campus and seized the bomb making materials under a mahajar between 02.45 and 05.00 p.m. on 11.05.2012. He prepared the mahajars at various places shown by accused No.1 - Abdul Rehaman on the voluntary statement of accused No.1. On 18.05.2012 accused No.1 took PW.21 and CW.8 - Sri M.G. Ramesh and CW.9 -
Mahesh to Srirangapatna where he collected money from an unknown person and PW.21 prepared a mahajar at the said place in the presence of witnesses.
On 19.05.2012, accused Nos.2 and 3 were secured before the learned 1st ACMM Court Bengaluru on body warrant and they were remanded to police custody on the application of PW.21. During the personal search of accused Nos.2 and 3, PW.21 found two Urdu books in the bag of accused No.2 and the said books were seized under a mahajar - Ex.P.3. He recorded the voluntary statement of accused No.2 and 3. PW.21 sent the seized articles to Forensic Science Laboratory (FSL) for analysis. He collected CDRs of various mobile numbers of accused Nos.1 to 3. He sent the seized explosive substances to BDDS to defuse/destroy the same and collected the report from the BDDS team. He collected FSL reports from FSL, Bengaluru and other various departments including sanctions from the District Magistrate and State Government, he recorded the statements of witnesses and he submitted the charge-sheet after conclusion of the investigation against accused Nos.1 to 3 for the offences punishable under 8 S.C.No.297/2013 sections 120-B, 121, 122, 124-A, 153-A, 153-B r/w S.34 of the IPC, sections 3, 25 and 26 of Arms Act, 1959, sections 4, 5 and 6 of the Explosive Substances Act, 1908 and sections 3, 11, 13, 16, 17, 18 and 18-B of U.A.(P) Act before the learned 1st ACMM, Court.
3. Upon receipt of the charge-sheet, the learned 1st ACMM took the cognizance of the offences punishable under sections 120-B, 121, 122, 124-A, 153-A, 153-B r/w section 34 of IPC, sections 3, 25 and 26 of Arms Act, 1959, sections 4, 5 and 6 of the Explosive Substances Act, 1908 and Sections 3, 11, 13, 16, 17, 18 & 18-B of U.A. (P) Act on 02.11.2012. He furnished the charge- sheet and its enclosures to accused Nos.1 to 3 in compliance with section 207 of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C." for short) and committed this case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru for trial since the offences alleged against accused Nos.1 to 3 are exclusively triable by the Court of Sessions. After committal of the case, the Hon'ble Principal City Civil and Sessions Judge, Bengaluru ordered to register this case as Sessions case. Accordingly, this case was registered and the same was made over to FTC-II (LVI Additional City Civil and Sessions Judge (CCH-57), Bengaluru for adjudication in accordance with law.
4. The learned FTC-II (LVI Additional City Civil and Sessions Judge (CCH-57), Bengaluru heard the arguments of learned Public Prosecutor and the learned counsels for accused Nos.1 to 3 before framing the charges. Since there were sufficient materials to proceed against accused Nos.1 to 3 in the charge-
9S.C.No.297/2013 sheet submitted by the investigation officer, the charges were framed, read over and explained to the accused Nos.1 to 3 in the language known to them on 16.10.2017. Accused Nos.1 to 3 denied the same as false and claimed to be tried. Hence, the case was posted for prosecution evidence.
5. In order to prove the allegations made against accused Nos.1 to 3, the prosecution has examined 21 witnesses as PW.1 to PW.21, got marked the documents as Ex.P.1 to Ex.P.110 and got identified MO.1 to M.O.18 and Ex.D.1 to Ex.D.5 were marked on behalf of defence. In the meanwhile, the Hon'ble High Court of Karnataka, Bengaluru ordered in W.P.No.13231/2020 (GM-RES- PIL) to transfer this case to this Court from LVI Additional City Civil and Sessions Judge, (CCH-57), Bengaluru as per the order dated 24.03.2021. Accordingly, the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, vide order dated 28.09.2021 made over this case to this Court for adjudication in accordance with law. Thereafter, the prosecution has examined four witnesses as PW.22 to PW.26 and got marked the documents as Ex.P.111 to Ex.P.124.
6. After conclusion of the evidence of the prosecution, the incriminating circumstances appeared in the prosecution evidence were read over and explained to accused Nos.1 to 3 in the language known to them as required under Section 313 of Cr.P.C. on 03.09.2022, 15.09.2022 and further statement of accused Nos.1 to 3 was recorded on 05.11.2022. Accused Nos.1 to 3 denied the entire incriminating circumstances appeared in the prosecution evidence as false and they have not chosen to adduce any defence evidence on their behalf, but they got marked 10 S.C.No.297/2013 Ex.D.1 to 5 during cross-examination of the prosecution witnesses.
7. This Court has heard the arguments of the learned Special Public Prosecutor and the learned counsels for accused Nos.1 to 3. The learned counsel for accused No.1 and 3 has submitted written arguments and the learned counsel for accused No.2 has also submitted a separate written arguments.
8. When the case was posted for judgment, this court has noticed that certain charges were not framed against the accused persons even though there are sufficient materials to frame charge against the accused persons. Therefore, this court has framed the additional charges, read over and explained to accused No.1 to 3 in the language known to them on 20.02.2023. They denied the same as false and claimed to be tried. The leaned Special Public Prosecutor has submitted that he has no evidence on the altered charges. Accused No.2 and the learned counsel for accused No.1 and 3 have submitted that they have no cross examination of any prosecution witnesses and the case may be posted for judgment. Therefore, the case was posted for judgment.
9. The points that arise for Court consideration are as follows:-
1) Whether the prosecution proves beyond reasonable doubt that during 2011-12, in Bengaluru and Kalaburagi, accused Nos.1 to 3 conspired to blast vital installations and to commit the murder the prominent Hindu Activists in Bengaluru City and 11 S.C.No.297/2013 thereby committed the offence punishable under section 120-B of the IPC?
2) Whether the prosecution proves beyond reasonable doubt that during the aforesaid place and time, accused Nos.1 to 3 attempted to wage war against the Government of India by way of blasting vital installations and killing prominent Hindu activists in Bengaluru City and thereby committed the offence punishable under section 121 of the IPC?
3) Whether the prosecution proves beyond reasonable doubt that during the aforesaid place and time, accused Nos.1 to 3 conspired to wage war against the Government of India by way of blasting vital installations and killing prominent Hindu activists in Bengaluru City or conspired to overawe, by means of criminal force or the show of criminal force, the Central or State Government and thereby committed the offence punishable under section 121-A of the IPC?
4) Whether the prosecution proves beyond reasonable doubt that during the aforesaid place and time, accused Nos.1 to 3 collected revolver, live bullets and explosive substances and prepared to wage war against the Government of India and thereby committed the offence punishable under section 122 of the IPC?
5) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 collected book by name Jihad, video clipping and Jihad materials with an intention to excite disaffection towards the Government of India and thereby committed the offence punishable under section 124-A of the IPC?12
S.C.No.297/2013
6) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 promoted or attempted to promote enmity between Hindus and Muslims and committed acts prejudicial to maintenance of harmony and thereby committed the offence punishable under section 153-A of the IPC?
7) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 made or published any imputations or assertions prejudicial to national- integration based on the religion, race, language, caste or community and thereby committed the offence punishable under section 153-B of the IPC?
8) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 collected arm and ammunition without licence in contravention of section 3 and had in possession of prohibited arm and ammunition without licence in contravention of section 7 and thereby committed the offence punishable under section 25 of Arms Act, 1959?
9) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 had in possession of arm and ammunition with an intention to conceal them from the public servant and thereby committed the offence punishable under section 26 of Arms Act, 1959?
10) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 illegally and maliciously collected explosive substances with an intention to blast vital installations and to kill Hindu activists and 13 S.C.No.297/2013 thereby committed the offence punishable under section 4 of the Explosives Substances Act, 1908?
11) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 had in possession of and control over explosive substances under suspicious circumstances for illegal object i.e., to blast vital installations and to kill Hindu activists and thereby committed the offence punishable under section 5 of the Explosives Substances Act, 1908?
12) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused No.1 procured the money as well as explosive substances and accused Nos.2 and 3 aided accused No.1 to procure money and explosives from their associates to commission of offence under Explosive Substances Act and thereby committed the offence punishable under section 6 of the Explosives Substances Act, 1908?
13) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 were dealing with any funds of an unlawful association in contravention of prohibitory order issued under section 7(1) of the Act and thereby committed the offence punishable under sections 3 and 11 of the Unlawful Activities (Prevention) Act, 1967?
14) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 take part in and abetted to commit unlawful activity i.e., to blast vital installations and to commit murder of Hindu Activists and thereby committed the offence punishable 14 S.C.No.297/2013 under S.13 of the Unlawful Activities (Prevention) Act, 1967 ?
15) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 committed terrorist acts with an intention to threaten the unity, integrity, security of India and with an intention to strike terror in the people of India and thereby committed the offence punishable under section 16 of the Unlawful Activities (Prevention) Act, 1967?
16) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused No.1 raised fund from accused No.2 and 3 and accused No.2 and 3 provided fund to accused No.1 through their associates to commit terrorist acts and thereby committed the offence punishable under section 17 of the Unlawful Activities (Prevention) Act, 1967?
17) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period and place, accused Nos.1 to 3 conspired together to commit the terrorist act and committed preparatory acts to commit a terrorist act by way of collecting the arms, ammunition and other explosive substances to commit the terrorist act and thereby committed the offence punishable under Section 18 of Unlawful Activities (Prevention) Act, 1967
18) Whether the prosecution proves beyond reasonable doubt that during the aforesaid period, and place, accused Nos.1 to 3, recruited the persons for commission of terrorist act and thereby committed the offence punishable under section 18-B of the Unlawful Activities (Prevention) Act, 1967?
19) What order?
15S.C.No.297/2013
10. Findings of this Court to the above points are as follows:-
Point No.1 : In the affirmative;
Point No.2 : In the negative;
Point No.3 : In the negative;
Point No.4 : In the affirmative;
Point No.5 : Does not survive for consideration;
Point No.6 : In the negative;
Point No.7 : In the negative;
Point No.8 : partly in the affirmative;
Point No.9 : partly in the affirmative;
Point No.10 : In the affirmative;
Point No.11 : In the affirmative;
Point No.12 : In the affirmative;
Point No.13 : In the negative;
Point No.14 : In the affirmative;
Point No.15 : In the negative;
Point No.16 : In the affirmative;
Point No.17 : In the affirmative;
Point No.18 : Partly in the affirmative;
Point No.19 : As per final order, for the following :-
REASONS
11. Point No.5 :- The allegations of the prosecution are that the accused Nos.1 to 3 with common intention, collected book by name Jihad, video clipping and Jihad materials with an intention to excite disaffection towards the Government of India and thereby the accused committed the offence of sedition punishable under Section 124-A of IPC. In this regard, it is 16 S.C.No.297/2013 apposite to refer to the decision of the Hon'ble Apex Court in the case of S.G. Vombatkere vs. Union of India, in W.P.(C) No.682/2021 decided on 11.05.2022. In this decision, the constitutional validity of Section 124-A of IPC was challenged before the Hon'ble Apex Court. While dealing with the constitutional validity of Section 124-A of IPC, the Hon'ble Apex Court has held at para No.8 as follows :-
"8. In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:
a. The interim stay granted in W.P.(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.
b. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.
c. If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
d. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.
e. In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.
f. The above directions may continue till further orders are passed.17
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12. A perusal of the aforesaid paragraph, the Hon'ble Apex Court has stayed the operation of Section 124-A of IPC and directed the Courts in India to keep all the pending trials, appeals and proceedings with respect to charge framed under Section 124-A of IPC in abeyance and adjudication with respect to other sections if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused. In this case, this Court had examined maximum number of witnesses i.e., 22 witnesses before issuing such direction by the Hon'ble Apex Court and recorded the evidence of only four witnesses thereafter. There are other charges against the accused persons in addition to the charge under section 124-A of IPC. Therefore, in the opinion of the court, no prejudice would be caused to the accused if this court proceeds to pass judgment on the charges leveled against the accused persons other than the charge under section 124-A of IPC. Since the Hon'ble Apex Court has directed the Courts in India to keep the trial pending in respect of the charge framed under Section 124-A of the IPC in abeyance, this Court has no power to proceed with the trial in respect of the said offence and the same is kept in abeyance till final verdict of the Hon'ble Apex Court. Therefore, this Court has not considered the aforesaid offence on merits and no finding is given on the aforesaid allegations. Hence, no more discussion is necessary in this regard and this point does not survive for consideration. Therefore, this Court has answered point No.5 accordingly.
13. Point No.1 :- Before proceeding to examine whether or not the accused persons have committed the offences alleged against them, it is proper to take note of the chronological events 18 S.C.No.297/2013 that took place in this case as per the case of the prosecution and whether those facts have been proved or not by the prosecution.
14. It is the contention of the prosecution that accused Nos.1 to 3 were lodged in Central Prison, Bengaluru Jail and they were in touch with each other during the said period. Subsequently, accused No.1 was released from Central Prison, Bengaluru and accused Nos.2 and 3 were shifted to Central Prison, Kalaburagi from Central Prison, Bengaluru. In order to prove the said facts, the prosecution has placed reliance on the oral evidence of PW.4, PW.5, PW.19 and PW.21 and documentary evidence at Ex.P.21 and Ex.P.34.
15. PW.4 - Sri Dharmappa Shivamurtappa Hatti deposed in his evidence that he had been working as the Assistant Superintendent, Parappana Agrahara Prison, Bengaluru from 2012 to 30.05.2013. The investigation officer came to the prison as per the order of the court and prepared a mahajar as per Ex.P.4 at cell No.20 and 31 and obtained his signature thereon. He further deposed that accused No.1 to 3 were kept at cell No.20 and 31 as per the register maintained in their prison.
16. PW.5 - Sri S.C. Hiremath deposed in his evidence that he had been working as Head Warder in Parappna Agrahara Prison, Bengaluru from 2011 to 2016. Accused No.1 to 3 were undertrial prisoners in 2011. He further deposed that 06.00 a.m. to 01.00 p.m. was his duty hours. He further deposed that when accused No.1 to 3 were left outside the cell for breakfast and dinner, they were talking with each other and when anybody goes near them, they will disperse. They did not allow him to listen to 19 S.C.No.297/2013 their words. He further deposed that accused No.1 was released on bail, accused No.2 was shifted to Mysore Prison and accused No.3 was shifted to Kalaburagi Prison. He further deposed that he suspected that accused No.1 to 3 were conspiring to do something.
17. PW.19 - Sri Krishnakumar, the Chief Superintendent, Central Prison, Bengaluru deposed in his evidence that he knows accused Nos.1 to 3 and they were lodged in Parappana Agrahara Prison in 2011. In this regard, he issued a letter as per Ex.P.21.
18. PW.21 deposed in his evidence that he received information from Chief Superintendent, Central Prison, Bengaluru as per Ex.P.21 that accused Nos.1 to 3 were lodged in Central Prison, Bengaluru. He further deposed that he received a letter from the Chief Superintendent, Central Prison, Kalaburagi to show that accused Nos.2 and 3 were lodged in Central Prison, Kalaburagi.
19. It is evident from Ex.P.21 that accused No.2 was lodged in Central Prison, Bengaluru from 09.12.2007 to 10.12.2011, accused No.3 was lodged in Central Prison, Bengaluru from 02.02.2006 to 19.12.2011 as undertrial prisoner and thereafter, he was shifted to convict prisoners' cell as he was convicted in a case and accused No.1 was lodged in Central Prison, Bengaluru from 03.05.2011 to 31.12.2011. It is evident from Ex.P.34 that accused No.2 was shifted to Central Prison, Kalaburagi on 21.12.2011 and accused No.3 was shifted to Central Prison, Kalaburagi on 03.01.2012.
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20. Even though PW.4 and PW.5 were cross-examined by the accused persons, nothing has been elicited to disbelieve their evidence except PW.5 did not lodge any written complaint before his superior officers regarding suspicious acts of accused No.1 to
3. Even the accused persons have not put the suggestions to PW.5 denying their meeting with each other when they were left outside the cell for breakfast and lunch. Further, PW.19 has not been cross-examined by the accused persons and his evidence is remained unchallenged. Even during the cross-examination of PW.21, nothing has been elicited in this regard to disbelieve his evidence.
21. A careful analysis of the aforesaid oral as well as documentary evidence placed before this Court, the prosecution has successfully proved that accused Nos.1 to 3 were lodged in Central Prison, Bengaluru till 10.12.2011, 19.12.2011 and 31.12.2011 respectively, accused No.1 to 3 used to meet with each other when they were left outside of the cell for breakfast and lunch and accused Nos.2 and 3 were lodged in Central Prison, Kalaburagi from 21.12.2011 and 03.01.2012 onwards respectively with cogent and convincing evidence.
22. It is the case of the prosecution that on 07.05.2012, PW.2 - Sri K.C. Ashokan, Inspector of Police, CCB, Bengaluru and his team apprehended accused No.1 - Abdul Rehaman at 06.15 p.m., near Venkob Chicken Center, Nanjappa Layout and seized 0.32 caliber revolver loaded with four live bullets, two Nokia mobile phones, four SIM cards and cash of Rs.540/- under a mahajar in the presence of panch witnesses. In order to prove the 21 S.C.No.297/2013 said facts, the prosecution has placed reliance on the oral evidence of PW.1, PW.2, PW.10 and PW.12 and documentary evidence at Ex.P.1, Ex.P.2 and MO.1 to MO.4.
23. PW.2 - Sri K.C. Ashokan has deposed in his evidence that on 07.05.2022, at around 04.00 p.m., he received a credible information that accused No.1 - Abdul Rehaman, against whom 2 to 3 cases were registered at Chanda Layout and Kengeri Police stations for supplying fire arms and ammunition to one Akram @ Ikram who was a notorious criminal, was moving in and around Nanjappa Layout near Jumma Masjid. Immediately, he informed the said facts to his superior officers and set up a team of officers to apprehend accused No.1 upon the instructions of his superior officers. He further deposed that he secured PW.1 - Sri Abdul Sammad and CW.3 - Sri Chandregowda to his office. He further deposed that the team reached Nanjappa Layout at 06.15 p.m. and located accused No.1 - Abdul Rehaman near Venkob Chicken Center in Nanjappa Layout. The team apprehended accused No.1
- Abdul Rehaman and searched him in person. During the search, the team found 0.32 caliber revolver loaded with four live bullets, two Nokia mobile phones, four SIM cards and cash of Rs.540/-. Those articles were seized under a Mahajar - Ex.P.1 in the presence of PW.1 and CW.3 between 06.15 p.m. and 07.15 p.m.
24. PW.1 - Sri Abdul Sammad deposed in his evidence that on 07.05.2012, CCB Police summoned him to their office and he was briefed about the facts of this case. He and the Police team reached Nanjappa Layout. One person was smoking near Venkob Chicken Center when they reached there at 06.15 p.m. 22 S.C.No.297/2013 PW.2 - Sri K.C. Ashokan apprehended the said person in his presence. PW.2 made the personal search of the said person and found one revolver with four live bullets in his Pyjama which was made in England, two Nokia mobile phones with dual sim cards in each mobile, cash of Rs.560/- and a wrist watch. The Police seized the said articles in his presence under a mahajar - Ex.P.1. He put his signature on the mahajar. PW.1 has identified revolver - MO.1, four live bullets - MO.2, read colour Nokia mobile with dual sim - MO.3, black colour Nokia mobile with dual sim - MO.4, cash of Rs.540/- - MO.5 and the belt wrist watch - MO.6 as they were seized in his presence.
25. PW.10 - Sri Vijaykumar, Head Constable, CCB, Bengaluru has deposed in his evidence that on 07.05.2012, at around 04.00 p.m., PW.2 - Sri K.C. Ashokan summoned him, CW.35 - Sri Balaraju and CW.37 - Sri N.B. Sakri to his office to accompany him to apprehend accused No.1 - Abdul Rehaman. PW.2 secured two panch witnesses to his office. They left CCB Office in a Police Jeep and reached Nanjappa Layout at 05.45 p.m. They searched for accused No.1, but they did not find accused No.1. While they were waiting near Masjid in Adugodi at 06.15 p.m., accused No.1 - Abdul Rehaman was standing near Venkob Chicken Shop by wearing Jubba and Pyjama and he was smoking. They apprehended him and made his personal search. During the search, they found a revolver with four live bullets, two Nokia company mobile phones, cash of Rs.500/- and a watch. PW.2 seized those articles under Ex.P.1 - Mahajar.
26. PW.12 - Sri Balaraju B. has deposed in his evidence that on 07.05.2012, PW.2 - Sri K.C. Ashokan summoned him, 23 S.C.No.297/2013 CW.37 - Sri N.B. Sakri and PW.10 - Sri Vijaykumar and informed that accused No.1 - Abdul Rehaman was moving in and around Adugodi by keeping arms illegally. PW.2 secured panch witnesses to the office. They were taken to a place near Masjid in Nanjappa Layout in a department vehicle. They searched for accused No.1 and he was standing at a chicken shop. They apprehended him and made his personal search. Then, they found a revolver with four live bullets at his waist, two Nokia company mobile phones, Rs.560/- cash and a watch. In this regard, PW.2 prepared a mahajar and seized those articles in the presence of panch witnesses. He wrote the mahajar - Ex.P.1 at the dictation of PW.2. He identified the seized articles.
27. A perusal of Ex.P.1, it is mentioned that PW.2 - Sri K.C. Ashokan and his team along with PW.1 - Sri Abdul Sammad and CW.3 - Sri Chandregowda visited Adugodi and they apprehended accused No.1 at Venkob Chicken shop, near Masjid, Nanjappa Layout, Adugodi at 06.15 p.m. One 0.32 caliber revolver with four live bullets, one saffron and black colour Nokia company mobile phone with two sim cards bearing mobile Nos.9060729118 and 8220120820, one black colour Nokia company mobile with two sim cards bearing mobile Nos.9880979347 and 9035698554, cash of Rs.540/- and Xylys company leather belt wrist watch and the said articles were seized from the possession of accused No.1 in the presence of panch witnesses.
28. PW.1, 2, 10 and 12 were testified at length by the learned counsels for accused No.1 to 3. A perusal of the cross examination of the said witnesses, accused No.1 to 3 have not 24 S.C.No.297/2013 taken any specific defence and they have not elicited anything contrary to the evidence of PW.1, 2, 10 and 12 except PW.1 was a witness in 2 or 3 cases and his shop is near the CCB office. The learned counsels for accused persons put the suggestions to PW.1 that he does not know the contents of Ex.P.1 since it is in Kannada language, MO.1 to MO.6 were kept in the police station when he had gone to the police station, he has not accompanied the police officials to Adugodi to arrest accused No.1 and on the relevant day no person was arrested by the police and the PW.1 denied all those suggestions as false. He voluntarily deposed that the contents of Ex.P.1 was read over and explained to him by the police. A perusal of the aforesaid evidence of PW.1, he clearly asserted that he accompanied the police to Adugodi, he was present at the time of arrest of accused No.1 - Abdul Rehaman, MO.1 to MO.6 were seized in his presence, Ex.P.1 was prepared in his presence and its contents were read over to him by the police.
29. In addition to the consistent evidence of the prosecution witnesses, during cross-examination of PW.12, the learned counsel for accused No.1 and 3 put the suggestion to him at page No.7, line No.7 which reads as follows :
" ಆರರರರಪಯನನನ ದಸಸಗರ ಮಮಡದ ಸಸಳ ಒಒದನ ಕಡರ ಹರರರದರರ ಎಲರಕಮಕಕನಕಕ ಸಟ ಮತರರಸಒದನ ಕಡರ ಹರರರದರರ ಎಒ.ಜ. ರಸರಸ ಸಗನತಸದರ ಎಒದನ ಹರರಳನವವದನ ಸರ."
30. The learned counsel for accused No.1 and 3 put the suggestions to PW.24 Sri B.G. Jyothi Prakash Mirji during cross examination at para No.6, line No.3 which read as follows;
"It is false to suggest that the arm, which was seized from the possession of accused No.1, was not in working condition. It is true to suggest that ammunition were also seized from the possession of accused No.1."25
S.C.No.297/2013
31. A perusal of the above said suggestions, the learned counsel for accused No.1 has clearly admitted that accused No.1 was arrested at the spot and firearm and ammunition were seized from the possession of accused No.1. The said admissions corroborate the evidence adduced by the prosecution that the accused was arrested at Venkob Chicken Center in Nanjappa Layout and revolver and live bullets were seized from the possession of accused No.1 - Abdul Rehaman.
32. The learned counsel for accused No.1 and 3 argued before the court that the CCB Police have no power to investigate the case without reference of any crime number. Therefore, they have no authority to arrest accused No.1 without registration of a case. In this regard, this court has perused the materials on record. It is a fundamental principle of criminal jurisprudence that anybody can set the criminal law into motion and such person need not be a police officer or victim of a crime. It is pertinent to note that the Code of Criminal Procedure (for short Cr.P.C.) confers power on a private person to arrest a person who commits a non-bailable and cognizable offence in his presence and produce such person before a police officer or a nearest police station though no case is registered against such person. Therefore, PW.2 who is a police officer has also power to arrest a person who commits a non-bailable and cognizable offence in his presence.
33. In this case, accused No.1 was in possession of a revolver and live bullets without any valid licence. The said act of accused No.1 is a non-bailable and cognizable offence and 26 S.C.No.297/2013 punishable with imprisonment up to ten years. Therefore, PW.2 has power to arrest accused No.1 and produce him before the nearest police station. In this case, PW.2 arrested accused No.1 and produced him before the nearest police station. Therefore, this court does not find any merit in the arguments advanced by the learned counsel for accused No.1 and 3.
34. The learned counsel for accused No.1 and 3 argued before the court that PW.2 - Sri K.C. Ashokan has not produced any document to show that he received the information against accused No.1 and no document is produced that he obtained permission from his superior officers to form a team to apprehend accused No.1. The said facts create doubt about the case of prosecution.
35. It is pertinent to note that the police officer, who receives the credible information about the commission of an offence from the informant, need not disclose the same before the court and the court cannot compel such police officer to disclose the same. It is a privileged communication under section 125 of the Indian Evidence Act. In respect of written order from the senior officer, PW.2 - Sri K.C. Ashokan clearly deposed in his evidence that he formed the team as directed by superior officer DCP (Crime) to apprehend accused No.1. He nowhere deposed that the order was issued in writing. Moreover, this is not a ground to suspect the case of prosecution and it is not a material defect and fatal to the case of prosecution. Hence, this court does not find any substance in the arguments advanced by the learned counsel for accused No.1 and 3.
27S.C.No.297/2013
36. The learned counsel for accused No.1 and 3 argued before the court that PW.2 neither informed the local police to register a case and arrest accused No.1 nor he called the local police to the spot though the local police station is 500 meters away from the spot and they stayed for 01½ hour at the spot. It is pertinent to note that PW.2 - Sri K.C. Ashokan is a police inspector in CCB. As per section 2(16) of the Karnataka Police Act, police officer means any member of the police force appointed or deemed to be appointed under the said Act. As per section 3 of the said Act, there shall be one Police Force including the State Reserve Police Force established under section 145 for the whole of the State. Therefore, any member of the police force appointed under the said Act is a police officer in view of sub- section (16) of section 2 of the Karnataka Police Act.
37. Section 41 of Cr.P.C. confers power on a police officer to arrest a person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence without warrant. In this case, PW.2 received a credible information that accused No.1 possessed an illegal arm suspected to be supplied by LeT operatives from Pakistan and most of the times he moves in and around Nanjappa Layout. Therefore, he immediately rushed to the said place along with his team, apprehended accused No.1, made his personal search and found revolver and live bullets with him. As per Section 25 of the Arms 28 S.C.No.297/2013 Act, possession of prohibited arm without licence is an offence punishable with imprisonment for 10 years. Therefore, PW.2 has power to arrest accused No.1 and there is no need to inform the local police to register a case. Hence, this court does not find any substance in the arguments advanced by the learned counsel for accused No.1 and 3.
38. The learned counsel of accused No.1 and 3 argued before the court that IMEI numbers of the mobile phones seized from the possession of accused No.1 are not recorded in the mahajar. If the police had really seized the mobile phones from the possession of accused No.1, they would have recorded the IMEI numbers in Ex.P.1. Therefore, the police have not seized any mobile phones from accused No.1 and they planted the same to create evidence against accused No.1.
39. It is true that IMEI numbers of mobile phones which were seized from the possession of accused No.1 were not mentioned in Ex.P.1 - Mahajar as argued by the learned counsel for accused No.1 to 3. A perusal of Ex.P.1, it is clearly recorded the colour of the mobile phones, Sim Cards available in the said mobile phones and their mobile numbers in Ex.P.1-mahajar. Further, PW.1 who is an independent witness categorically deposed that two mobile phones and four Sim Cards were seized from the possession of accused No.1 and nothing has been elicited to disbelieve his testimony.
40. Further, this court cross verified the IMEI number mentioned in red and black colour mobile in which mobile number 9060729118 was inserted and the CDR collected by the 29 S.C.No.297/2013 investigation officer from the concerned service provider. Accused No.1 made the calls in the said number on the date of his arrest by using the said number. The IMEI number found in M.O.3 in respect of the said number tallies with the IMEI number found in CDR - MO.18. So also, this court cross verified the IMEI number mentioned in black colour mobile in which mobile number 9035698554 was inserted and the CDR collected by the investigation officer from the concerned service provider. Accused No.1 made the calls in the said number on the date of his arrest by using the said number. The IMEI number found in M.O.4 in respect of the said number tallies with the IMEI number found in CDR - MO.18. This court will discuss about the CDRs collected by the investigation officer in subsequent paras. Since the aforesaid facts are material for discussion on the arguments canvassed by the learned counsel for accused No.1 and 3, this court has referred to the aforesaid facts at this stage. Therefore, there is no force in the arguments advanced by the learned counsel for accused No.1 and 3 that the mobile phones were planted by PW.2- Sri K.C. Ashokan to create evidence against accused No.1- Abdul Rehaman.
41. The learned counsel for accused No.1 and 3 argued before the court that PW.2 has not made efforts to secure the latent and patent finger prints from the fire arm and bullets. PW.2 has not taken photographs at the time of seizure of articles and he has not prepared any sketch of the spot. As discussed supra, the independent witness PW.1 deposed that revolver and bullets were seized from the possession of accused No.1. PW.2, 10 and 12 also deposed that the revolver and bullets were seized from the 30 S.C.No.297/2013 possession of accused No.1. Accused No.1 himself admitted that a revolver and bullets were seized from his possession. There are other corroborative evidence to show that revolver and live bullets were seized from the possession of accused No.1 as discussed supra. Moreover, the revolver and bullets were not seized from any open or hidden place, whereas they were seized from the possession of accused No.1. Under such circumstances, there was no need to lift the finger prints from the revolver and bullets. Hence, mere finger prints were not lifted from the revolver and live bullets, no photographs were taken and no sketch was prepared are not grounds to disbelieve the case of the prosecution and they are not fatal to the case of prosecution. Hence, the submission of the learned counsel for accused N.1 and 3 is devoid of any merit.
42. The learned counsel for accused No.1 and 3 argued before the court that PW.2 neither waited to arrest and apprehend the mysterious person as disclosed by accused No.1 nor checked the call list of mobiles of accused No.1. He further argued that accused No.1 being aware with the PW.2 and also having loaded revolver with him neither made any attempt to escape from the place nor resist the arrest with the help of fire arm. It appears from the records that accused No.1 disclosed when he was enquired by PW.2 that he was waiting for a person who brought passport, but the PW.2 has not made any efforts to catch the said mysterious person. He could have waited for the said person and catch that person. Now the question before the court is whether the other materials and corroborative evidence adduced by the prosecution can be discarded for the flaw in the investigation. In the opinion of this court, the prosecution has adduced credible and trustworthy 31 S.C.No.297/2013 evidence to show that accused No.1 was arrested on 07.05.2012 near Venkob chicken shop and seized MO.1 to 6 from his possession. Accused No.1 himself admitted during cross examination of prosecution witnesses that he was arrested by PW.2 and seized the MO.1 to 6. Even accused No.1 has also admitted that he was arrested at the said place during recording of his statement under section 313 of Cr.P.C. Hence, this court cannot discard the aforesaid evidence on the ground that there is a flaw in the investigation.
43. The learned counsel for accused No.1 and 3 argued that PW.10 and 12 are subordinate to PW.2 and their evidence cannot be believed. He further argued that PW.1 has proximity with the police as his shop is near the CCB office and he is a stock witness. He further argued that the police have not examined the local persons though the local people were present at the time of arrest of accused No.1. These facts also create doubt about the case of prosecution. In this regard, he has placed reliance on para 6 and 7 of the decision of the Hon'ble Apex Court in Shishpal @ Shishu vs. The State (NCT of Delhi) reported in 2022 Cri.L.J. 3496 which read as follows :-
"6. PW3 is the sterling witness of the prosecution upon whom much reliance has been made by both the Courts. He was cross-examined by the prosecution on the only issue qua A-1, on his presence. This witness is a seasoned one as he has deposed at least on seven occasions in favour of the police and also admitted to have received a certain amount of money. Obviously, he is well-known to the police having a shop just opposite the police station. This part of the evidence was also not questioned by the prosecution. It is the evidence of PW3 that he saw A-2 and A-3 dragging the deceased, while A-2 has stabbed him. Thus, there was a categorical denial of the presence of A-1. Contrary to the case of the prosecution, he has stated that both the accused ran away on foot. The further testimony of this witness is that the deceased is a known pick pocket and the occurrence happened because he picked the pocket 32 S.C.No.297/2013 of the accused. This is also in variance with the theory projected by the prosecution. Certainly, we do not find the evidence of this witness trustworthy. He is obviously a stock witness, and therefore cannot be relied upon, particularly when "reputation is a fact" under Section 3 of the Indian Evidence Act. We believe, both the Courts ought not to have placed reliance on the testimony of PW3 who happens to be the sole eye-witness.
8. We wish to place reliance upon the judgment of this court in Tarseem Kumar v. Delhi Admn., 1994 Supp (3) SCC 367:
"18. The only remaining circumstance to be dealt with is the alleged disclosure made by the appellant and recovery of bloodstained clothes belonging to the appellant at his instance. In view of Section 27 of the Evidence Act, there was no difficulty in accepting this evidence and to consider the same along with other circumstances if proved beyond all reasonable doubt. But the unfortunate feature of the present case, which has also been noticed by the trial court, is that many witnesses who can be said to be the stock witnesses of the police, have been produced on behalf of the prosecution to prove important circumstances. In this background the court has to be very cautious about the investigation done by the police in this case. The circumstance regarding the recovery of the bloodstained clothes belonging to the appellant, on the disclosure made by him, has to be examined in the background of the witnesses like PW 9, PWs 8 and 30, PWs 2 and 3, on whom it is difficult to place any reliance for the reasons mentioned above. It is not possible to hold that the vital links of the prosecution case which are necessary to be proved before a finding can be recorded, that the chain of evidence is complete, have been proved beyond reasonable doubt. If the evidence of PWs 2 and 3 are rejected, then the main circumstantial evidence that the appellant was in exclusive possession of the room in question and he had got the pit dug by PWs 2 and 3 in which the dead body of the victim was found in the night of 18-10-1974, shall be deemed to have not been proved."
44. This Court has meticulously gone through the aforesaid decision. The Hon'ble Apex Court has nowhere held that the court has to see the evidence of a witness who deposed in many cases on behalf of the prosecution suspiciously and his evidence cannot be relied upon. But the Hon'ble Apex Court has held that in such circumstances, the court must be very cautious while accepting the evidence of such witnesses. In this decision, 33 S.C.No.297/2013 the Hon'ble Apex Court by considering the materials available on record has come to the conclusion that the evidence of PW.3 who is a sole eye witness in the said case, is not reliable and there are many contradictions in his evidence as well as in the evidence of other prosecution witnesses. In the present case, during the cross-examination of PW.1, nothing has been elicited from the mouth of PW.1 to disbelieve his testimony. Merely on the ground that PW.1 is a witness in other cases, he has proximity with the police and he is not a local witness, this court cannot discard his evidence unless his evidence is full of contradictions and he is not a trustworthy witness. Hence, with due respect to the Hon'ble Apex Court, the aforesaid decision is not aptly applicable to the facts and circumstances of this case since the facts involved in the aforesaid decision are totally different from the facts involved in the present case in hand.
45. In this regard, this court has placed reliance on the decision of the Hon'ble Apex Court in Ronny @ Ronald James Alwaris and others Vs. State of Maharastra, (1998) 3 SCC 625. In this decision, the Hon'ble Apex Court has laid down at paras 26 to 28 as follows;
"26. It will be useful to read both sub-section (4) and (5) of Section 100 here:
100(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched s situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any or them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places 34 S.C.No.297/2013 in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses;
but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it".
27. These provisions require the officer making the search under Chapter VII to call two or more respectable inhabitants of the locality in which the place to be searched is situate and if no such inhabitant of that locality is willing to be a witness to the search, then to call persons of any other of any other locality to attend and witness the search and for that purpose, the officer making the search is empowered to issue an order in writing to them or any of them so to do. The search has to be made in their presence and a list of things seized in the course of such search and of the places in which the things are found, is required to be prepared by the said officer and signed by such witnesses. it further provides that unless specially summoned by the court, such persons/witness in the search need not attend the court.
28. In State of Maharashtra vs. P.K. Pathak the witnesses of the search were the custom officials themselves. The High Court held that as no independent witness of the locality was taken by the custom authorities to witness the search, no reliance could be placed on the searches or the recovery of the smuggled articles. the High Court also rejected the evidence of lone non-official witness on the ground that he was not a witness of the locality and on the ground that he has assented to accompany the police and custom officials to witness the various recoveries wherever he was taken by the police. Disapproving the view of the High Court of Bombay, this Court held that the fact that they were custom officials would be no ground to distrust their evidence; so also the fact that the non-official witness was approached by the police and the custom authorities to accompany them to witness the search would not by itself show that he was an unreliable or interested witness. Observing that his evidence was corroborated by the police officer of the rank of Sub-Inspector, this Court held that his evidence ought to be believed. It may be noted that the evidence of the witness of search was accepted notwithstanding the fact that he was not of the locality where the search took place and notwithstanding the fact he was brought by the police along with them for the purposes of search. The evidence, however, can be rejected if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. It there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not from the locality of search or that he was brought by the police with it. We are not persuaded to accept the contention that the evidence of Nandu Ambadas Jadhav (PW-6) cannot be accepted for the reasons that he was not a witness of the locality and that he was brought from Pune by the investigating officer to witness the search. He was one of the 35 S.C.No.297/2013 drivers of the cars in which the investigating team came to Bombay from Pune. For the sake of convenience, he was taken as a witness for search. We do not find any material in the cross-examination to discredit his testimony. The only ground of attack on the evidence of PW-6 that he was not from the locality as contemplated under sub- section (40 of Section 100 Cr.P.C. fails because in our view a witness of search other than the one from the locality even if he has been brought by the investigating agencies along with them cannot be disbelieved only on that ground and we do no find anything in his evidence to discredit his testimony."
(Emphasis supplied)
46. A perusal of the aforesaid decision, the Hon'ble Apex Court laid down the law that the evidence of witness of search can be accepted notwithstanding the fact that he was not of the locality where the search took place and notwithstanding the fact that he was brought by the police along with them for the purposes of search. The evidence of such witness, however, can be rejected if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. If there is any intrinsic merit in the evidence of the witness of the search the same cannot be rejected solely on the ground that the witness is not from the locality of the search or that he was brought by the police with them. Applying the said principles laid down in the said decision, there is intrinsic merit in the evidence of PW.1 and there are no serious infirmities or inconsistency in his testimony to disbelieve his evidence. Moreover, accused No.1 himself admitted that he was arrested at Venkob Chicken Center during cross examination of prosecution witness in support of the evidence of PW.1. Even the testimony of PW.2, 10 and 12 is also corroborative with each other and their evidence cannot be rejected only on the ground that they are police officers as per the settled position of law. Therefore, the testimony of PW.1 cannot be discarded on the ground that he is 36 S.C.No.297/2013 not a local witness and the testimony of PW.10 and 12 cannot be disbelieved as they are subordinate to PW.2. Hence, the submissions of the learned counsel for accused No.1 and 3 are devoid of any merit.
47. A careful analysis of the aforesaid evidence, the prosecution has placed materials before the court that accused No.1 was apprehended at Venkob Chiken Center, near Masjid of Adugodi and MO.1 to MO.6 were seized from the possession of accused No.1 and proved the said facts with cogent and convincing evidence beyond reasonable doubt. In corroboration with the evidence of the prosecution, accused No.1 has admitted during cross examination of prosecution witnesses that he was arrested at the aforesaid place.
48. It is the next contention of the prosecution that after apprehending accused No.1 and seizure of MO.1 to MO.6 from the possession of accused No.1, PW.2 - Sri K.C. Ashokan brought accused No.1 along with seized articles to Adugodi Police Station and lodged a first information statement with PW.20 - Sri R. Manjunath - SHO of Adugodi Police Station. Based on the said first information statement, PW.20 registered a case in Crime No.106/2012 for the offences punishable under Sections 120-B, 121, 122, 124-A, 153-A, 153-B r/w 34 of the IPC and Sections 25 and 26 of Indian Arms Act, arrested accused No.1 and the seized properties were subjected to P.F.No.113/2012. In order to prove the said facts, the prosecution has paced reliance on the oral evidence of PW.2, PW.10, PW.12 and PW.20 and documentary evidence at Ex.P.2, Ex.P.23 and Ex.P.24.
37S.C.No.297/2013
49. PW.2 - Sri K.C. Ashokan deposed in his evidence that after apprehending accused No.1 and seizure of MO.1 to MO.6 from the possession of accused No.1, he brought accused No.1 and seized articles to Adugodi Police Station and lodged the first information statement with PW.20 - Sri R. Manjunath, SHO of Adugodi Police Station at about 8.00 pm., and also produced the mahajar drawn at the spot at the time of lodging the first information statement - Ex.P.2.
50. PW.10 and PW.12 have deposed in their evidence that PW.2 took accused No.1 and seized articles to Adugodi Police Station and lodged the first information statement with PW.20 - SHO of Adugodi Police Station and produced the mahajar drawn at the spot before PW.20.
51. PW.20 - Sri R. Manjunath has deposed in his evidence that on 07.05.2012, at 08.30 p.m., PW.2 - Sri K.C. Ashokan and PSI - Sri Naganna Gowdar came to Adugodi Police Station and lodged the first information statement and produced accused No.1 along with mahazar - Ex.P.1, one revolver - MO.1, four live bullets- MO.2, one red colour Nokia mobile - MO.3, one black colour Nokia mobile - MO.4, cash in a sealed cover - MO.5 and Xylys company wrist watch - MO.6 before him. Based on the said first information statement - Ex.P.2, he registered the case in Crime No.106/2012 and forwarded the FIR - Ex.P.23 to the Court as well as his higher officer. He further deposed that he arrested accused No.1 and the seized articles were subjected to P.F.No.113/2012 and produced the same before the court.
38S.C.No.297/2013
52. During the cross-examination of PW.2, PW.10, PW.12 and PW.20, the accused persons have not elicited anything contrary to their evidence. The testimony of the said witnesses is consistent and in corroboration with each other. In addition to the said evidence of the prosecution witnesses, during cross examination of PW.20 - Sri R. Manunath, the learned counsel for accused No.1 and 3 put the suggestions as follows :
"ಚಮಸಮ1 ರವರನ ಕರರಟಕ ದರರನನನಯ ನಮನನ ಪಪಥಮ ವತರಮಮನ ವರದಯನನನ ದಮಖಲಸರನತರಸರನರ ಎಒದರರ ಸರ. ನಮನನ ಘಟನಮ ಸಸಳಕರಕ ಭರರಟ ನರಡಲಲ. ಚಮಸಮ1 ರವರನ ಹರರಳದಒತರ ನಮನಯಮಲಯಕರಕ ಬಒದನ ಸನಳನಳ ಸಮಕಕ ಹರರಳನತಸದರದರನರ ಎಒದನ ಹರರಳನವವದನ ಸರಯಲಲ."
53. A perusal of the aforesaid cross examination, accused No.1 to 3 admitted that accused No.1 was produced before the PW.20 - Sri R. Manjunath by PW.2 - Sri K.C. Ashokan and PW.20 registered the case based on the first information statement lodged by PW.2. The accused persons nowhere disputed that accused No.1, articles seized from the possession of accused No.1 and the mahajar drawn at the spot i.e., Ex.P.1 were not produced before PW.20. In addition to the said admission, accused No.1 during his examination under section 313 of Cr.P.C. answered question No.72 as follows;
"Q.No.72 - PW.20-Sri R. Manjunath, DSP, ACB, Chikkaballapura has deposed in his evidence that on 07.05.2012 at 08.30 p.m., Sri Ashokan, Inspector of Police, CCB and Sri Naganna Gowdar, PSI, CCB lodged a written complaint as per Ex.P.2 and produced mahajar-Ex.P.1, one revolver-MO.1, four live bullets-MO.2, one red colour Nokia mobile-MO.3, one black colour Nokia Mobile-MO.4, cash sealed with cover-MO.5 and Jailes watch-MO.6 and you accused No.1. Based on Ex.P.2, he registered a case in Crime No.106/2012 and forwarded the complaint-Ex.P.1 and FIR- Ex.P.23 to the Court as well as his higher officer. What do you say? (A.1) Ans : I had a watch and Rs.3500/- cash with me. The police seized the said watch and money by saying that I will be released. Other facts are false."39
S.C.No.297/2013
54. The aforesaid answer clearly goes to show that certain articles were seized from his possession on the date of his arrest by the police. He has indirectly admitted that he was arrested by the police on the said day and he was produced before the PW.20.
55. The learned counsel for accused No.1 and 3 argued before the court that PW.2 received the information at 04.00 p.m. as per the case of prosecution and he lodged the first information statement at 08.30 p.m. He further argued that the place of the incident is only half a kilo meter away from the police station. It clearly indicates that there is delay of 04.30 hours in filing the first information statement and the same has not been explained by PW.2 in Ex.P.2. Hence, the non explanation of delay is fatal to the case of the prosecution.
56. It appears from the records that PW.2 - Sri K.C. Ashokan received the information at 04.00 p.m. and he lodged the first information statement at 08.30 p.m. as per Ex.P.2 - the first information statement. The prosecution witnesses have admitted in their evidence that the place where they apprehended accused No.1 is half a kilo meter away from the Adugodi police station. PW.2 has explained in his evidence that after receipt of the information, he informed the said fact to his higher officers and formed a team upon the instructions of his superiors. Further, he secured the panchas to his office and then the team left the CCB office to go to Nanjappa Layout. As per the evidence of PW.1, 2, 10 and 12, accused No.1 was apprehended at 06.15 p.m. and his personal search was conducted. A mahajar - Ex.P.1 was drawn 40 S.C.No.297/2013 until 07.15 p.m. at the spot. Then, accused No.1 and seized articles were brought to Adugodi police station and PW.2 got prepared the Ex.P.2 - the first information statement and lodged lodged the same with PW.20 - Sri R. Manjunath. Hence, there is no delay in lodging the first information statement as argued by the learned counsel for accused No.1 and 3. Hence, there is no substance in the arguments advanced by the learned counsel for accused No.1 and 3.
57. A careful analysis of the aforesaid evidence, the prosecution has adduced cogent and convincing evidence that PW.2 - Sri K.C. Ashokan lodged the first information statement - Ex.P.2 with PW.20 - Sri R. Manjunath and produced MO.1 to MO.6 and Ex.P1 - mahajar before PW.20 and proved the said facts beyond reasonable doubt.
58. It is the case of the prosecution that on 08.05.2012, the Commissioner of Police issued a memo to PW.20 - Sri R. Manjunath to hand over the case papers to PW.21 - Sri Chalapathi, ACP (OCW), Bengaluru, for further investigation. Accordingly, on the same day, PW.20 handed over the case papers to PW.21 for further investigation of this case. In order to prove the said facts, the prosecution has produced Ex.P.25 - the memo issued by the Commissioner of Police, Bengaluru city. The accused persons have not brought any material on record contrary to the said document. Hence, the prosecution has proved the said facts with cogent and convincing evidence.
59. It is the next contention of the prosecution that the Investigating Officer recorded the voluntary statement of accused 41 S.C.No.297/2013 No.1 on 08.05.2012. In the said voluntary statement, accused No.1 disclosed many facts. He stated that he hid the explosive substances collected from a person in a secret place and he would show the said spot. Therefore, the Investigating Officer secured CW.4 - Sri Mahesh and CW.5 - Sri M. Manju. Thereafter, accused No.1 took the Investigating Officer and panch witnesses to Jnanabharathi Bengaluru University Campus and produced the hidden articles in the presence of panch witnesses. In order to prove the said allegations, the prosecution has placed reliance on the oral evidence of PW.21 and documentary evidence at Ex.P.26 and Ex.P.27.
60. PW.21 - Sri Chalapathi has deposed in his evidence that accused No.1 - Abdul Rehaman @ Abdur Rehaman was arrested on 07.05.2012 and he took him to his custody on 08.05.2012. He further deposed that he recorded voluntary statement of accused No.1. In the voluntary statement, accused No.1 disclosed that he received bomb making materials from a boy sent by one Bhai who is from Pakistan as per the instruction of the said Bahi at Wilson Garden and he kept those articles in a place. Accused No.1 also disclosed to show the said place if he was taken to such place. Therefore, he secured CW.4 - Sri Mahesh and CW.5 - M. Manju to his office. He further deposed that accused No.1 took him and panch witnesses to Jnanabharathi Bengaluru University Campus and took them through a forest area inside the campus and produced a Gunny bag which was tied in a plastic bag. The said bag contained six gelatin sticks, six detonators, ¾ kg bolt, nut and washers, five kgs ammonium nitrate and one more five kgs ammonium nitrate. He 42 S.C.No.297/2013 seized the aforesaid articles in the presence of panch witnesses, collected samples from the aforesaid articles to send the same to FSL for examination and prepared a mahajar as per Ex.P.27.
61. A perusal of Ex.P.26, accused No.1 disclosed in his voluntary statement that he received bomb making materials at Wilson Garden from a boy sent by one Bhai from Pakistan and he kept those bomb making materials in a place and ready to show that place if he was taken to that place.
62. A perusal of Ex.P.27, accused No.1 took the Investigating Officer and panch witnesses to Jnanabharathi Bengaluru University Campus and he took them to a place in forest area inside the University Campus and produced a Gunny bag which was tied in a plastic bag. When the Investigating Officer opened the said bag, he found six gelatin sticks, six detonators, ¾ kg bolt, nut and washers, five kgs ammonium nitrate and one more five kgs ammonium nitrate. Thereafter, the Investigating Officer collected the samples from gelatin sticks, detonators, bolt, nut and washers and ammonium nitrate for scientific examination, seized the aforesaid articles in the presence of panch witnesses.
63. Except the aforesaid evidence, the prosecution has not produced any other evidence to prove that accused No.1 took the Investigating Officer and panch witnesses to Jnanabharathi Bengaluru University Campus and produced bomb making materials. The prosecution has not examined CW.4 - Sri Mahesh and CW.5 - Sri M. Manju who are independent witnesses to the seizure mahazar. However, the prosecution has made attempts to secure the said witnesses and examine them in support of its 43 S.C.No.297/2013 case. In this regard, the prosecution took the summons, warrants and also proclamation against the said panch witnesses to secure them before this Court. But the prosecution failed to secure the said witnesses and therefore, this Court dropped the said witnesses.
64. Now the question before this Court is whether this Court can come to the conclusion that the prosecution has proved the seizure mahajar based on the evidence of Investigating Officer in the absence of examination of independent witnesses. In this regard, the learned Special Public Prosecutor has placed reliance on the decision of the Hon'ble High Court of Delhi, in Om Prakash vs. State, reported in LNIND 2017 DEL 3816. The learned Special Public Prosecutor has placed reliance on para Nos.28, 29 and 30 of the said judgment, which read as follows :-
"28. So far as, non-examination of panch witness Sh. Rajender Prasad is concerned, on the summons sent to the witness for the date 14th March, 1996 it was reported that he had shifted to Andhra Pradesh and his whereabouts were not known. Thereafter, also, repeatedly summons were sent to the panch witness Sh. Rajender Prasad which were received back unserved as his whereabouts could not be ascertained. On the summons sent to Sh. Rajender Prasad for the date of hearing 16 th July, 1997, it was reported that Sh. Rajender Prasad was working with the said department earlier and he had left the job and shifted to Guntur, Andhra Pradesh and his present whereabouts were not known.
29. In view of the decision of the Supreme Court as State of A.P. vs. P. Satyanarayana Murthy (2008) 9 SCC 674 (LNIND 2008 SC 1982), non-examination of panch witness Sh. Rajender Prasad is not fatal to the prosecution case.
30. Lot of emphasis has been laid on non-examination of chance witness Prabhu Dayal. The raid officer PW.5 Inspector Abhey Ram and the investigating officer PW-6 Inspector Tola Ram have not stated about the presence of chance witness Prabhu Dayal at the time of raid. The complainant has stated about the presence of Prabhu Dayal only during his cross examination. However, he has nowhere stated that when the raid officer challenged the appellant 44 S.C.No.297/2013 Om Prakash that he had accepted the bribe, Prabhu Dayal was present even at that time. So even if it is assumed for the sake of arguments that some persons with the name Prabhu Dayal was present when accused/appellant visited the complainant, he being not found present when the accused was challenged by the raid officer, there was no occasion for them to join the so called chance witness."
65. A perusal of the aforesaid decision of the Hon'ble High Court of Delhi, it clearly held that non-examination of panch witnesses is not fatal to the case of prosecution. Even the prosecution can prove the seizure mahajar through the evidence of Investigating Officer. In the said decision, the court issued summons to the witness on many occasions and the prosecution failed to secure the witness. However, the court relied upon the evidence of the investigation officer to prove the seizure. In the present case in hand, as discusses supra, this court issued summons, warrants and proclamations to the witnesses to secure them before the court at the instance of the prosecution, but the prosecution has failed to secure those witnesses. The said facts clearly indicate that the prosecution has made efforts to secure the witnesses and it has not intentionally failed to examine the said witnesses and intentionally withheld the important piece of evidence. Hence, the law laid down in the aforesaid decision is aptly applicable to the facts and circumstances of this case.
66. In this regard, this Court has placed reliance on the decision of the Hon'ble Apex Court in Rameshbhai Mohanbhai Koli Vs. State of Gujarat, (2011) 11 SCC 111. In this decision, the Hon'ble Apex Court has held at para No.32 to 36 which read as follows:
"32. An argument was advanced about reliance based on the evidence of investigating officer. This Court in State of U.P. vs. 45 S.C.No.297/2013 Krishna Gopal and Another, (1988) 4 SCC 302 has held that courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. "3. .... Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case." [vide State of Kerala vs. M.M. Mathew & Anr., (1978) 4 SCC 65)]
33. In Modan Singh vs. State of Rajasthan, (1978) 4 SCC 435, it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam vs. State of Mharashtra, (2001) 9 SCC 362.
34. In Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, it was further held that "10. .....even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
35. This Court has held in large number of cases that merely because the panch-witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the Investigating Officer alone. In the instant case, it is not the case of defence that the testimony of Investigating Officer suffer from any infirmity or doubt. (Vide Modan Singh's case, Krishna Gopal's case and Anter Singh's case).
36. In view of the above principles and in the light of the discussion about the recovery as stated and concluded earlier those materials produced by the prosecution are relevant, acceptable and rightly connected these circumstances with the appellants."
(Emphasis supplied)
67. A perusal of the law laid down in the aforesaid decision, the court has to presume that the public servants must act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. It is further held that where the evidence of the investigation officer who recovered the material objects is 46 S.C.No.297/2013 convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version.
68. In this regard, this Court has also placed reliance on the decision of the Hon'ble Apex Court in Girja Prasad (Dead) by LRs Vs. State of M.P., (2007) 7 SCC 625. In this decision, the Hon'ble Apex Court has held at para No.25 which reads as follows;
"25. In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
(Emphasis supplied)
69. In this regard, this Court has also placed reliance on the decision of the Hon'ble Apex Court in Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554. In this decision, the Hon'ble Apex Court has held at para No.10 which reads as follows;
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police 47 S.C.No.297/2013 officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."
70. In this regard, this Court has also placed reliance on the decision of the Hon'ble Apex Court in Kripal Singh Vs. State of Rajasthan, (2019) 5 SCC 646. In this decision, the Hon'ble Apex Court has held at para No.21 which reads as follows;
"21. The submission of the learned senior counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of police officials can be outrightly disregarded."
71. As per the law laid down in the aforesaid decisions, this court cannot disbelieve the evidence of the Investigation officer on the ground that he is interested in the success of his case. The Hon'ble Apex Court has laid down that the prosecution can prove the seizure of articles with the evidence of the Investigating Officer even though panch witnesses turned hostile to the case of prosecution and there is any corroboration to the evidence of Investigating Officer. Therefore, as per the law laid down in the aforesaid decisions, the prosecution can prove the seizure of articles through the evidence of Investigating Officer. The Court can rely on the evidence of the Investigating Officer if there is any other corroborative evidence in support of seizure of articles. Therefore, in this case, the Investigating Officer has clearly stated before this Court that the accused No.1 took him and panch witnesses to Jnanabharathi Bengaluru University 48 S.C.No.297/2013 Campus and produced the articles and the same were seized in the presence of panch witnesses.
72. The learned Special Public Prosecutor argued before the court that accused No.1 disclosed in his voluntary statement that he received the bomb making material from a person sent by Bhai and he kept the said articles in a place and he would show the said place if he was taken to the said place. Accordingly, accused No.1 took the investigation officer and panchas to Jnanabharathi campus and produced the bomb making materials before the investigation officer. Therefore, a fact is discovered based on the admission made by accused No.1 and the same has great significance in proving the case of the prosecution. In support of his arguments, the learned Special Public Prosecutor has relied upon para 20 of the decision in Sanjay @ Kaka Vs. State (NCT of Delhi), (2001) 3 SCC 190 which reads as follows;
"20. In State of Uttar Pradesh v. Deoman Upadhyaya [AIR 1960 SC 1125] this Court held that Sections 25 and 26 were manifestly intended to hit an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. In that case the High Court 49 S.C.No.297/2013 had acquitted the accused on the ground that his statement which led to the recovery of gandasa, the weapon of offence, was inadmissible. The accused Deoman had made a statement to hand over the gandasa which he stated to have thrown into a tank and got it recovered. The trial court convicted the accused for the offence of murder. The Full Bench of the High Court held that Section 27 of the Evidence Act which allegedly created an unjustifiable discrimination between persons in custody and persons out of custody offending Article 14 of the Constitution, was unenforceable. After the opinion of the Full Bench a Division Bench of the Court excluded from consideration the statement made by the accused in the presence of the police officer and held that the story of the accused having borrowed a gandasa on the day of occurrence was unreliable. The accused was acquitted but at the instance of the State of U.P., the High Court granted a certificate to file the appeal in this Court. This Court did not agree with the position of law settled by the High Court and decided to proceed to review the evidence in the light of that statement in so far as it distinctly related to the fact thereby discovery being admissible. Dealing with the conclusions arrived at by the High Court and on the facts of the case, this Court observed:
"The High Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered; and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court."
(emphasis supplied)
73. The learned Special Public Prosecutor has also placed reliance on para 310 of the decision of the Hon'ble High Court of 50 S.C.No.297/2013 Karnataka in High Court of Karnataka represented by the Registrar General, Bangalore Vs. Syed Mohammed Ibrahim, 2015 (1) KCCR 513 (DB) which reads as follows;
"310. "Discovery of fact" cannot be equated to the object produced or found. It is more than that. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. The phrase 'distinctly related to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused, which is the direct and immediate cause of the discovery. It is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. In fact it is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery."
74. A perusal of the above decisions, the Hon'ble Apex Court as well as the Hon'ble High Court of Karnataka have laid down that section 27 of the Evidence Act render information admissible on the ground that the discovery of a fact pursuant to the statement made by a person in custody is a guarantee of the truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a persons giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. Applying the said principles to the facts on hand, accused No.1 disclosed that he kept bomb making materials in a place before PW.21 and he took PW.21 and panch witnesses to Jnanabharathi Bengaluru University Campus and produced the explosive substances kept in a secluded place before PW.21. Therefore, the admission made by accused No.1 has significance to believe the case of prosecution and the 51 S.C.No.297/2013 principle laid down in the said decision is aptly applicable to the facts and circumstance of this case.
75. In addition to the aforesaid evidence, during the cross- examination of PW.21, the learned counsel for accused Nos.1 and 3 put the suggestion to PW.21 at page No.72 of the evidence which reads as follows;
"It is false to suggest that I have not taken any experts along with me at the time of conducting Ex.P.27 as I knew very well that I am not going to recover anything at the said place."
76. A perusal of the aforesaid suggestion of the learned counsel for accused Nos.1 and 3, he admitted that the Investigating Officer visited the spot where accused No.1 handed over gunny bag to the Investigating Officer in the presence of panch witnesses and prepared Ex.P.27. Further, the learned counsel for accused No.1 and 3 put the suggestion to PW.21 at para 35 in page No.96 which reads as follows :-
"It is false to suggest that the explosives, IED (Improvised Explosive Device), Gelatin sticks, seized in this case are widely used in Mining activities and easily available in and around Bangalore and though I am aware of it, I am deposing falsely."
77. The aforesaid suggestion clearly indicates that PW.21 has seized the explosive substances in this case. Further, the learned counsel for accused No.1 and 3 put the suggestion to PW.21 at para 48 in page No.112 which reads as follows :-
"48. It is false to suggest that Anantharamaiah Compound Mysore Road mentioned in Ex.P.45 that is the tower location is 7 kms away from Jnanabharathi campus from where I seized the explosives."
78. A perusal of the aforesaid suggestion of the learned counsel for accused No.1 and 3, he admitted in unequivocal terms that the Investigating Officer seized the explosive substances at 52 S.C.No.297/2013 Jnanabharathi Campus. A combined reading of the aforesaid suggestions, it is manifest that accused No.1 and 3 admitted the facts that PW.21 visited Jnanabharathi Bengaluru University Campus, he seized the explosive substances and prepared Ex.P.27 there at the instance of accused No.1 unequivocally.
79. The learned counsel for accused No.1 and 3 argued before the court that no witness has been examined by the prosecution to substantiate the recovery of explosives at the instance of accused No.1. He further argued that no person saw accused No.1 with the alleged explosive substances from Wilson Garden to Jnanabharathi campus. The investigation officer created a false story, fabricated and planted the materials to implicate the accused persons falsely in this case. In the opinion of the court, there is no substance in the above said submissions of the learned counsel for accused No.1 for the simple reason that the Hon'ble High Court of Delhi held that non-examination of panch witnesses is not fatal to the case of prosecution and the Hon'ble Apex Court held that the court can rely upon the evidence of the investigation officer even though the panch witnesses turned hostile to the case of prosecution as discussed supra. Moreover, he himself admitted that the investigation officer visited Jnanabharathi campus and seized the explosive substances at the instance of accused No.1. Therefore, he cannot submit that the prosecution has not adduced any evidence to substantiate the recovery.
80. The learned counsel for accused No.1 and 3 argued that no finger print was collected from the explosive substances by the investigation officer and he has not taken the photographs and 53 S.C.No.297/2013 recorded the process of recovery. The said facts clearly indicate that the investigation officer planted the explosive substances in this case. In this regard, he has placed reliance on para 51 of the decision of the Hon'ble Apex Court in Prakash Vs. State of Karnataka, 2014 CriLJ 2503 (SC) which reads as follows;
"51. Our attention was drawn to the Karnataka Police Manual and it appears that Nanaiah followed the guidelines laid down therein and perhaps acted in an overly cautious manner. Guideline No.1543 provides as follows:
"1543. The opinion of the finger print expert is of paramount importance in the investigation of various crimes. The following instructions should be followed regarding chance finger and foot prints and their developments, preservation of the scene, method of packing and other matters:"
81. This court has gone through the aforesaid decision meticulously. The Hon'ble Apex Court has discussed about the Karnataka Police Manual in the aforesaid decision and discussed about the facts of that case whether the lifted finger print from the scene of occurrence corroborates the case of prosecution or not and the precautions to be taken at the time of lifting the finger, packing and carrying the finger print to scientific laboratory. But the Hon'ble Apex Court nowhere held that collection of finger prints is mandatory in all the cases. Therefore, the aforesaid decision of the Hon'ble Apex Court does not come to the aid of the accused persons.
82. The learned Special Public Prosecutor argued before the court that collection of finger print in all cases is not mandatory as per the Karnataka Police Manual or any other law for the time being in force. In this case, it was not necessary to collect the finger prints from the seized explosives. Therefore, the investigation officer has not collected the finger prints at the time 54 S.C.No.297/2013 of seizing the explosive substances. He further argued that even though it is assumed for a while for the sake of arguments that the investigation officer had to collect finger prints from the seized explosives, it is not a ground to discard the other reliable evidence placed before this court. Under such circumstances, it is only a defect in the investigation and the entire prosecution case cannot be suspected on the ground that there is a defect in the investigation. In support of his arguments, he has placed reliance on para 41 of the decision in State of West Bengal Vs. Mir Mohammad Omar and others etc. etc, AIR 2000 SC 2988 which reads as follows;
"41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above."
(Emphasis supplied)
83. The Hon'ble Apex Court has laid down the law that it is almost impossible to come across a single case wherein the 55 S.C.No.297/2013 investigation was conducted completely flawless or absolutely foolproof. The function of the criminal court should not be wasted in picking out the lapses in investigation. If the offenders are acquitted only on account of flaws or defects in the investigation, the cause of criminal justice becomes the victim. In this case, the investigation officer has not committed any error without lifting the finger prints from the seized explosive substances and there is no defects in this regard. Further, taking photographs and recording the process of recovery is not mandatory on the part of the investigation officer. Even though it is assumed for a while for the sake of discussions that it is a defect in the investigation, the same is not a ground for acquittal of the accused persons as per the law laid down in the aforesaid decision. Hence, the submissions made by the learned counsel for accused No.1 and 3 are devoid of any merit.
84. The learned counsels for accused No.1 to 3 argued before the court that the explosive substances seized at the instance of accused No.1 were bearing company name i.e., M/s Vetrivel Explosive Pvt., Ltd., which is a well known company and it supply explosives to government forces. It has a registered office at Salem, Tamilnadu. He further argued that the bullets seized from the possession of accused No.1 having marking of KF (Kirki Factory). The investigation officer has not conducted any investigation about the said companies during the investigation. He further argued that when the questions were asked to the investigation officer in this regard, he gave different answers and the investigation conducted by him was not entered in the case diary. It creates doubt about the case of prosecution.
56S.C.No.297/2013
85. A perusal of the records, the accused persons have not placed any material before the court to show that M/s Vetrivel Explosive Pvt., Ltd., supply explosives to government forces as argued by the learned counsel for accused No.1 and 3. The bullets were seized from the possession of accused No.1 and the explosive substances were seized at the instance of accused No.1. Therefore, investigation which is not conducted by the investigation officer in respect of M/s Vetrivel Explosive Pvt., Ltd., and Kirki Factory is not fatal to the case of the prosecution. Moreover, as per the decision of the Hon'ble Apex Court, this court cannot acquit the accused on account of flaws in the investigation. If offenders are acquitted only on the account of flaws or defects in the investigation, the cause of criminal justice becomes the victim. Therefore, there is no merit in the submissions of the learned counsel for accused No.1 and 3.
86. A careful perusal of evidence adduced by the prosecution and the suggestions made by the learned counsel for accused No.1 and 3 to PW.21, the prosecution has proved the seizure of articles at the instance of accused No.1 at Jnanabharathi Bengaluru University Campus on 11.05.2012 with cogent and convincing evidence. Accused No.1 has clearly admitted by putting suggestions to the witness that the Investigating Officer seized the explosive substances at Jnanabharathi Bengaluru University Campus at his instance. Therefore, the prosecution has proved the aforesaid facts beyond reasonable grounds with cogent and convincing evidence.
57S.C.No.297/2013
87. It is the next contention of the prosecution that accused No.1 disclosed in his voluntary statement that he collected the bomb making materials near a park in Wilson Garden from a boy who was sent by a Bhai from Pakistan. In this regard, the Investigating Officer conducted mahazar at Kittur Channamma Park, Hombegowda Nagar, Wilson Garden at the instance of accused No.1, where accused No.1 collected the explosive substances or bomb making materials. In this regard, the prosecution has placed reliance on the evidence of PW.21 and documentary evidence at Ex.P28, Ex.P.45 and MO.18.
88. PW.21 has deposed in his evidence that accused No.1 disclosed in his voluntary statement that he received the bomb making materials at Wilson Garden area from a boy who was sent by a person called Bhai and he would show the said place if he was taken to that place. Therefore, the Investigating Officer secured CW.6 - Sri Yogesh and CW.7 - Sri Deepak. Accused No.1 took him and the panch witnesses to Kittur Channamma Park, Hombegowda Nagar, Wilson Garden and accused No.1 showed the place where he collected the bomb making materials. Accordingly, he prepared a mahazar in the presence of panch witnesses from 01.00 p.m. to 01.45 p.m.
89. A perusal of Ex.P.28, it is recorded that accused No.1 took the Investigating Officer and panch witnesses near Kitturu Channamma Park, Hombegowda Nagar within the jurisdiction of Wilson Garden Police Station and disclosed that he showed the place where he collected bomb making materials from a boy who was sent by a person called Bhai.
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90. As per voluntary statement statement of accused No.1, the person by name Bhai, who is the foreign associate of accused No.2 and 3, sent the bomb making materials though a boy. As could be seen from Ex.P.45, accused No.1 contacted the said Bhai to his phone number 966503021920. A perusal of M.O.18, accused No.1 contacted the said Bhai to is phone number 9715556654481. It is evident from Ex.P.45 and M.O.18 that accused No.1 was in touch with the said Bhai from 25.4.2012 to 05.05.2012. These documents corroborate the evidence of PW.21 and Ex.P.28. In addition to the said evidence, the investigation officer has seized the bomb making materials at the instance of accused No.1. This fact also corroborates the evidence of PW.21 and Ex.P.28.
91. The prosecution has not examined the independent panch witnesses CW.6 - Sri Yogesh and CW.7 - Sri Deepak to prove that accused No.1 took the Investigating Officer and panch witnesses to Wilson Garden area where he collected the bomb making materials. However, the prosecution has made attempts to examine the said panch witnesses in support of its case. This Court issued summons, warrants and proclamation against the said panch witnesses to secure them before this Court at the request of the prosecutor, but the prosecution failed to secure the said witnesses and therefore, this Court dropped the said witnesses. As discussed supra, this Court can rely upon the evidence of Investigating Officer even though the prosecution has failed to examine the panch witnesses if there is any corroborative evidence in support of the evidence of the investigation officer. As discussed supra, the prosecution has produced the documents to 59 S.C.No.297/2013 show that accused No.1 was in touch with one Bhai and also proved that the investigation officer seized the explosive substances at the instance of accused No.1.
92. Now, the question before this Court is whether the discovery of facts, which were within the exclusive knowledge of accused No.1, at the instance of accused No.1 can be relied upon without seizure of any articles. In this regard, this Court has placed reliance on para 25 of the decision of the Hon'ble Apex Court in Mohanlal and another vs. Ajit Singh and another reported in (1978) 3 SCC 279, which reads as follows :-
"25. The High Court has gone to the extent of recording a finding that the disclosure statement Ex. P.O. was involuntary as the respondent was "interrogated for several hours after his arrest", and was hit by section 24 of the Evidence Act. The fact however remains that even the respondent has not stated that he was compelled to make the disclosure statement, and there is no other evidence to show that this was so. The High Court has arrived at its conclusion to the contrary on the basis of the statement of Harnek Singh (P.W. 19). The relevant portion of that statement reads as follows,-
"On 21st June, 1974, 1 interrogated him where he was arrested. He was then taken to Roranwali and was interrogated there in the presence of many persons. From there we returned to police station at 10-30 P.M. On 22nd June, 1974 he was again interrogated at the police station. But no other person was present at the time of the interrogation. He did not give any disclosure statement that day. He was interrogated regarding the handle of the knife. On 23rd June, 1974 I started interrogating the, accused at about 12 noon. The witnesses came to the police station of their own accord. I interrogated him for about two hours."
Three facts therefore emerge from the statement : (i) that the total period of interrogation was about two hours, (ii) the interrogation was made in the presence of many persons, and (iii) the interrogation was regarding the discovery of the handle of the knife of which the blade was found lying near the dead body. There was thus no evidence on the record to justify the finding of the High Court that the respondent was interrogated for several hours and that his disclosure statement was involuntary so as to attract 60 S.C.No.297/2013 section 24 of the Evidence Act. As it is, the evidence on the record was sufficient to show that the statement was not only voluntary but it fell within the purview of section 27 of the Evidence Act in as much as the "fact discovered" was the place from which the various articles were produced by the respondent and his knowledge of it. As the information given by the respondent related to that important fact, it was clearly admissible under section 27 of the Evidence Act. Moreover the actual recovery of the currency notes, the ring and the purse in pursuance of the information given by the respondent, and at his instance, was sufficient guarantee of the truth of that information and it could safely have been relied upon by the High Court. The High Court misread the evidence on the record in taking a contrary view."
(emphasis supplied)
93. A perusal of the aforesaid decision, discovery of facts includes the discovery of a place that exclusively within the personal knowledge of the accused.
94. This court has also placed reliance on the decision of the Hon'ble Apex Court in Charandas Swami Vs. State of Gujarat and others, (2017) 7 SCC 177. In this decision, the Hon'ble Apex Court has laid down at para 57 to 65 as follows;
"57. The dead body of deceased Gadadharanandji was found on 4th May, 1998 in a burnt condition in a ditch behind the house of PW50 in Barothi village in Rajasthan. How the dead body of Gadadharanandji reached that spot was revealed by none other than Accused No.3. In what circumstances burnt injuries were caused on the dead body of Gadadharanandji, no prosecution witness has spoken about that. Be that as it may, the fact that the dead body recovered from Barothi village on 4th May, 1998 was that of Gadadharanandji could be known only after Accused No.3, during the course of investigation, made a disclosure about the location where he had disposed of the dead body of Gadadharanandji. Till the aforesaid disclosure was made, in the records of the Rajasthan police, the dead body was noted as that of an unknown person. If, the Accused No.3 had not disclosed to the Investigating Officer about the location where the dead body was dumped by him - which information was personally known to him 61 S.C.No.297/2013 and at best Accused No.5 and none else, then the investigation would not have made any headway.
58. The disclosure made by Accused No.3 to the investigating officer was recorded in the panchanama Exh. 188, when he had led the police party to the spot where the dead body was dumped by him. That location matched with the location from where the dead body of an unknown person was recovered on 4th May, 1998 on the information given by PW50 to the local police at Barothi. The fact that the dead body was already recovered from the same place on 4th May, 1998 and so noted in the public records in the State of Rajasthan does not undermine the admissibility of the disclosure made by Accused No.3 to the investigating officer about the location where the dead body of Gadadharanandji was dumped by him, which information was exclusively within the personal knowledge of Accused No. 3. The fact that the dead body recovered on 4th May 1998 was of Gadadharanandji, was unraveled and discovered only after the results of its medical examination became available to the investigating agency. Till then, it was considered to be of an unknown person. The Courts below have accepted the case of the prosecution that the disclosure made by Accused No.3 about the location where the dead body of Gadadharanandji was dumped by him, was admissible under Section 27 of the Evidence Act. The appellants, however, take exception to that by relying on the reported decisions.
59. In our view, the decision in the case of Navjot Sandhu (Supra) has adverted to all the previous decisions and restated the legal position. In paragraph 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the Evidence Act, the Court formulated two questions which read thus:
"(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things -- concrete or non- concrete.
(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused --
whether can be put against him under Section 27."
62S.C.No.297/2013 In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paragraphs 115 to
118. The Court then after analyzing Section 27 of the Evidence Act, in paragraphs 120 to 144 adverted to the relevant decisions on the point. In paragraphs 120 and 121, the Court noted thus:
"120. The history of case-law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council's decision has not been questioned in any of the decisions of the highest court either in the pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.
121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved 63 S.C.No.297/2013 and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case64: (AIR p. 70, para 10) "clearly the extent of the information admissible must depend on the exact nature of the fact discovered" and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) "Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused."
We have emphasised the word "normally" because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: (AIR p. 70, para 10) "If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object 64 S.C.No.297/2013 subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect." Then, Their Lordships proceeded to give a lucid exposition of the expression "fact discovered" in the following passage, which is quoted time and again by this Court: (AIR p. 70, para 10) "In Their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(emphasis supplied)
60. This Court has restated the legal position that the facts need not be self-probatory and the word "fact" as contemplated by Section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan (Supra) that, "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence."
The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of the reported judgment.
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61. In paragraph 139, the Court noticed the decision in the case of Damu (Supra) which had dealt with the case where broken glass piece was recovered from the spot matched with broken tail lamp and in paragraph 37 of that decision, the Court observed thus:
"139. ... '37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot."
(emphasis supplied)
62. The Court then noted that the above view taken in Damu's case does not make it a dent on the observations made and the legal position spelt out in Om Prakash (supra) which distinguishes Damu's case because there was discovery of a related physical object at least in part. We may usefully reproduce paragraph No.142 to 144 of the same reported decision, wherein the Court observed thus:
"142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section
27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police 66 S.C.No.297/2013 officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
143. How the clause "as relates distinctly to the fact thereby discovered" has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kottaya case various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah case. Sarkaria, J. analysed the ingredients of the section and explained the ambit and nuances of this particular clause in the following words: (SCC p. 832, para 12) '12. ... The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted.
144. In Bodhraj v. State of J&K this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18) 67 S.C.No.297/2013 "The words 'so much of such information' as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate." (emphasis supplied)
63. Reliance was also placed on the recent decision of this Court in the case of Dupare (supra). The Court adverted to the relevant precedents and observed thus, in paragraphs 23 to 29:-
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. Iing Emperor has held thus: (IA p.77) "... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
24. In Mohmed Inayatullah v. The State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that:
"11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as 68 S.C.No.297/2013 discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
12. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which' may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, Ganu Chandra Kashid v. Empror). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced 69 S.C.No.297/2013 and the knowledge of the accused as to this (seePalukuri Kotayya v. Emperor, Udai Bhan v. State of U.P.).
(emphasis in original)
25. In Aftab Ahmad Anasari v. State of Uttaranchal after referring to the decision in Palukuri Kotayya, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that: (Aftab Ahmad Anasari Case, SCC p. 596, para 40) "40. ...the part of the disclosure statement, namely, that the Appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible Under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the Appellant pursuant to the voluntary disclosure statement made by the Appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits."
26. In State of Maharashtra v. Damu it has been held as follows:
"35. ...It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
The similar principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi), Manu Sharma v. State (NCT of Delhi and Rumi Bora Dutta v. State of Assam.
27. In the case at hand, as is perceptible, the recovery had taken place when the Appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the 70 S.C.No.297/2013 panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.
28. Additionally, another aspect can also be taken note of. The fact that the Appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash held thus: (Prakash Chand Case, SCC p.95, para 8) "8. ...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 Code of Criminal Procedure. What is excluded by Section 162, Code of Criminal Procedure 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."
29. In A.N. Venkatesh and Anr. V. State of Krnataka it has been ruled that: (SCC p. 721, para 9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct Under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent 71 S.C.No.297/2013 to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the accused-Appellants (Exts. P- 15 and P-16) is not admissible Under Section 27 of the Evidence Act, still it is relevant Under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence Under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible Under Section 8 of the Evidence Act." (emphasis supplied)
64. The other decision relied upon is the case of Pandurang Kalu Patil (supra).
65. It is not necessary to multiply the authorities on this aspect. In our opinion, the Courts below have rightly placed reliance on the fact discovered by the Investigating Officer (PW64) on the basis of the disclosure made by the Accused No.3 on 2nd April 1999, after his arrest on 29th March, 1999, as recorded in Exh. 188. The panchanama Exh.188 was proved by pancha witness PW30. The fact that PW30 was not on good terms with the accused cannot be the basis to discard his evidence. This aspect has been considered by the High Court and in our opinion, rightly, that the evidence of PW30 was relied upon for the limited purpose to prove the panchanama and not for any other relevant fact. We affirm the view taken by the courts below about the admissibility of disclosure of the spot where the dead body of Gadadharanandji was disposed of by Accused No.3. The same stood corroborated from the recovery of a dead body of an unknown person from the same spot by the Rajasthan Police on 4th May, 1998 on the information provided by PW50. That dead body, on subsequent medical examination was found to be of none other than that of Gadadharanandji."
95. The Hon'ble Apex Court in the aforesaid decision, after considering the earlier decisions held that discovery of fact arises by reason of fact that information given by accused exhibited knowledge or mental awareness of information as to its existence at a particular place. In the said decision, the dead body had 72 S.C.No.297/2013 already been recovered and subsequently, the accused showed the place where the dead body was dumped by him. The learned trial court convicted the accused by holding that the fact discovered by the accused is admissible under section 27 of the Evidence Act. The Hon'ble Apex court upheld the findings of the learned trial court.
96. In the present case on hand, accused No.1 took the Investigating Officer and panch witnesses to the place where accused No.1 collected the bomb making materials or explosive substances. The said facts well within the exclusive personal knowledge of accused No.1 and he showed the said place to the investigation officer. Accordingly, a mahajar was drawn by the Investigating Officer. In support of the said facts, the prosecution has placed CDR before this Court to show that accused No.1 was in touch with the said Bhai who is a foreign associate of accused No.2 and 3. Therefore, the prosecution has proved the aforesaid facts beyond reasonable doubt with cogent and convincing evidence.
97. It is the next contention of the prosecution that accused No.1 took the Investigating Officer and panch witnesses to Srirangapatna on 18.05.2012 and showed the spot where he collected money from a person twice at the instance of accused No.2 and one Bhai. In this regard, the prosecution has placed reliance on the oral evidence of PW.21 and documentary evidence at Ex.P.29 and Ex.P.38.
98. PW.21 deposed in his evidence that on 18.05.2012 accused No.1 took him and CW.8 - Sri M.G. Ramesh and PW.9 -
73S.C.No.297/2013 Sri Mahesh P., to Srirangapatna. Accused No.1 disclosed that he received money at the said place twice as per the instructions of accused No.2. In this regard, he prepared mahazar as per Ex.P.29 from 01.30 p.m. to 02.15 p.m.
99. A perusal of Ex.P.29, PW.21 - Sri Chalapathi secured CW.8 - Sri M.G. Ramesh and PW.9 - Sri Mahesh P., from Maddur KSRTC Bus Stand and briefed them about the fact of the case. Accused No.1 took the Investigating Officer and panch witnesses to Srirangapatna, near Inchara Cool Corner Shop, KSRTC Bus Stand, Srirangapatna and disclosed that he received the amount from a person who was sent by accused Nos.2 and 3 at the said place. This mahajar - Ex.P.29 was drawn at the said place from 01.30 p.m. to 02.15 p.m.
100. A perusal of Ex.P.38, the tower location of accused No.1 shows that he was at Srirangapatna Town on 17.03.2012. As could be seen from Ex.P.38, accused No.1 contacted accused No.2 and 3 twice on the said date and conversed for 177 seconds. It is evident from the said document that accused No.1 contacted frequently accused No.2 and 3. This document corroborates the evidence of PW.21 and Ex.P.29. Admittedly, the prosecution has not examined CW.8 and CW.9. The prosecution has made efforts to secure the said witnesses to prove Ex.P.29. This Court issued summons, warrants and proclamation against CW.8 and CW.9 at the request of the prosecution, but the prosecution has failed to secure the presence of CW.8 and CW.9 and failed to examine them before this Court. However, during the cross-examination of PW.21, nothing has been elicited contrary to his evidence. Even 74 S.C.No.297/2013 during the cross-examination, accused Nos.1 to 3 have not put any questions denying the facts that accused No.1 never took PW.21 and panch witnesses to Srirangapatna and never disclosed the place where he received money from a person who was sent by accused No.2 and 3 and nothing has been elicited against the evidence of PW.21, Ex.P.29 and Ex.P.38. As discussed supra, this court can rely upon the evidence of the investigation officer in the absence of examination of the panch witnesses by the prosecution and discovery of facts means discovery of a place within the exclusive knowledge of the accused. Hence, the prosecution has proved the above said facts with cogent and convincing evidence.
101. It is the next contention of the prosecution that accused Nos.2 and 3 were taken to custody, a book - MO.7 was recovered from the possession of accused No.2 in the presence of panch witnesses. In this regard, the prosecution has placed reliance on the oral evidence of PW.21 and mahajar witness - PW.3 and documentary evidence at Ex.P.3 and MO.7 and MO.8.
102. PW.21 deposed in his evidence that he requested the Court to issue body warrant against accused Nos.2 and 3 since they were lodged in Kalaburagi Central Prison. On 19.05.2012 accused Nos.2 and 3 were produced before the learned 1st ACMM Court, Bengaluru and he obtained accused Nos.2 and 3 to police custody for custodial interrogation. When he searched accused Nos.2 and 3, he found bags with them. He searched the bag of accused No.2 and found two Urdu books namely 'Kitab-ul-Jihad' - MO.7 and 'In the Name of Allah Most Gracious Most Merciful' -
75S.C.No.297/2013 MO.8. He seized the said books in the presence of CW.10 - Sri Sanaulla and PW.3 - Sri P.S. Jain. The said books were subjected to P.F.No.63/2012.
103. PW.3 - Sri P.S. Jain deposed in his chief-examination that on 19.05.2012 at around 06.45 p.m., he was summoned to CCB Office. When he reached the said office, one Sri Sanaulla and two accused persons were present. He was informed that they were brought from Gulbarga Jail in respect of the case registered in Adugodi Police Station. Both accused had one bag each with them. When the Investigating Officer searched the bag of accused No.2, they found clothes, soap, paste and two books in Urdu language. When the Investigating Officer searched the bag of accused No.3, they found clothes, soap, paste in the said bag. The Investigating Officer seized those articles under a mahajar - Ex.P.3 in his presence and in the presence of Sri Sanaulla.
104. A perusal of Ex.P.3, the Investigating Officer searched the bags of accused Nos.2 and 3 and seized two books from the bag of accused No.2 in the presence of CW.11 - Sri Sanaulla and PW.3 - Sri P.S. Jain and prepared Ex.P.3 from 07.10 p.m. to 08.00 p.m.
105. During the cross-examination of PW.21 and PW.3, nothing has been elicited from the mouth of the said witnesses in support of the defence of accused persons except the shop of PW.3 is situated about ¼ km away from CCB office and he was a witness in several cases in CCB cases.
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106. The learned counsel for accused Nos.1 to 3 argued before the Court that PW.3 is a stock witness and his testimony cannot be believed. This witness is planted by the Investigating Officer. In this regard, he has placed reliance on the decision of the Hon'ble Apex Court in Shishpal @ Shishu vs. The State (NCT of Delhi) reported in 2022 Cri.L.J. 3496. This court has already discussed the law laid down in the aforesaid decision. It is settled position of law that the court has to search for corroboration in case the prosecution witness is a witness in other police cases. In this case, the prosecution has adduced corroborative evidence in support of the evidence of PW.3. He specifically denied the suggestion that the police planted MO.7 and 8 to create a false case against the accused persons and there is no connection between MO.7 and 8 and accused No.2 and 3. Hence, the testimony of PW.3 can be believed in this case.
107. It is the case of prosecution that PW.21 collected CDRs from various service providers to show that accused No.1 to 3 contacted with each other. In order to prove the said facts, the prosecution has placed reliance on the oral evidence of PW.21, 11, 14, 22, 23 and MO.18.
108. PW.21 - Sri Chalapathi deposed in his evidence that he collected the CDR and CAF in respect of mobile number 9060729118 from Uninor company. In this regard, he recorded the statement of PW.11 - Sri Raghunath. He further deposed that he collected CDR and CAF from the Vadafone company in respect of mobile number 9739091622. He further deposed that he collected CDR from MTS company in respect of mobile No.9141844490 77 S.C.No.297/2013 and he recorded the statement of CW.31 - Sri Thyagaraj. He further deposed that he collected CDRs and CAFs from TATA company in respect of mobile Nos.9035698554, 8976057645, 9241372337 and 9241097534 and he recorded the statement of PW.23 - Sri Ravi Narona. He further deposed that he collected CDRs and CAFs from Airtel company in respect of mobile numbers 8220120820, 9535656581, 9880979347, 9632168474 and 9632144042. He further deposed that he collected the CDRs from various service providers through e-mail and produced all the CDRs in one CD - MO.18.
109. PW.11 - Sri Raghunath deposed deposed in his evidence that he provided the CDR and the documents collected from the subscriber at the time of issuing the Sim Card bearing mobile No.9060729118 on 19.10.2012 along with covering letter Ex.P.16.
110. PW.14 - Sri Murthy S.N., Nodal Officer Vadafone deposed in his evidence that in August 2012, Sri Chalapathi, ACP, CCB, Bengaluru sent a notice requesting to furnish call details of a mobile number. Accordingly, he furnished the call details of the said mobile number and customer information form as per Ex.P.18 along with covering letter Ex.P.17.
111. PW.22 - Sri Stanley, Nodal Officer in Bharathi Airtel, Bengaluru has deposed in his evidence that in the month October, 2012, he received a request letter from CCB officials, Bengaluru requesting to provide Call Detail Records pertaining to Mobile Nos.9535656581, 9632168474, 9880979347, 8220120820, 9741696016 and 9632144042 for the period from 01.06.2011 to 78 S.C.No.297/2013 07.05.2012 and also to provide Customer Application Forms. Accordingly, he provided the above said details under his covering letter - Ex.P.47 on 19.10.2012.
112. PW.23 - Sri Ravi Narona, Head Nodal and Regulatory for TATA Tele-services Ltd., has deposed in his evidence that on 18.10.2012, he received an E-mail from CCB, P.I., OCW, Bengaluru to provide Customer Application Form, call detail records, proof of identity and address of the subscribers for mobile numbers 9035698554, 8976057645, 9241372337 and 9241097534. Accordingly, he retrieved the CAFs and CDRs of the said subscribers and submitted hard copy of the CAFs and identity proofs to the Investigating officer on 20.10.2012 and CDRs through email under his covering letter - Ex.P.42.
113. A perusal of MO.18, CDRs pertaining to mobile numbers 9060729118, 9739091622, 9141844490, 9035698554, 9241372337, 9241097534, 8220120820, 9880979347, 9632168474 and 9632144042 are submitted by the PW.21 along with the charge sheet.
114. A perusal of the evidence of the aforesaid witnesses, further chief examination of PW.11 was deferred at the request of the learned Special Public Prosecutor, but his presence was not secured for further examination-in-chief and this witness was not tendered for cross examination. Hence, his evidence cannot be considered for appreciation. It is pertinent to note that this court issued summons, warrant and proclamation against PW.11 at the request of the prosecution. However, the prosecution was unable to secure his presence. The said facts indicate that the 79 S.C.No.297/2013 prosecution has made efforts to secure the presence of PW.11 to prove its case and the prosecution has not intentionally dropped PW.11 to suppress any materials. The prosecution has adduced the evidence of investigation officer to prove that he collected the CDR from Uninor company. There is other corroborative evidence to the evidence of the investigation officer to connect accused No.1 with the above said mobile number. Hence, his evidence can be relied upon for appreciation of the evidence placed before this court by the prosecution.
115. During cross examination of PW.14, 22 and 23, the learned counsels for accused No.1 to 3 have not elicited anything to disbelieve their testimony. During cross examination of PW.22, the learned counsel for accused No.1 and 3 put the suggestion at para No.10 as follows;
"It is true to suggest that the CDR details of the above said mobile numbers furnished by me covers all the calls for the period from 01.06.2011 to 07.05.2012 which I had provided."
116. The cross examination done by the learned counsel for accused No.1 and 3 was adopted by the learned counsel for accused No.2. A perusal of the aforesaid suggestion, accused No.1 to 3 clearly admitted that PW.22 provided the CDR of Mobile Nos.9535656581, 9632168474, 9880979347, 8220120820, 9741696016 and 9632144042. But they try to elicit from the mouth of this witness that Ex.P.50, 55, 65, 46 and 73 are not provided by him and this witness admitted the same. It is true that the said documents are not provided by him, but those documents are the analysis reports prepared by the investigation officer. The original CDRs furnished by this witness are available in MO.18.
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117. During cross examination of PW.23, the learned counsel for accused No.1 and 3 put the suggestion at para No.13, line No.9 as follows;
"It is true to suggest that I forwarded e-mail of CDRs to the investigation officer before issuing Ex.P.42."
118. The cross examination done by the learned counsel for accused No.1 and 3 was adopted by the learned counsel for accused No.2. A perusal of the aforesaid suggestion, accused No.1 to 3 clearly admitted that PW.23 provided the CDRs of mobile Nos.9035698554, 8976057645, 9241372337 and 9241097534 and the investigation officer produced those CDRs in the form of CD - MO.18.
119. The prosecution has not examined CW.31 - Sri Thyagaraj, Nodal Officer, MTS company. When the summons was issued to CW.31, the same was returned with shara 'CW.31 is dead'. Therefore, CW.31 is dropped by this court and the prosecution was unable to examine the said witness. However, the prosecution got marked the CDR issued by the said witness as Ex.P.124 and also produced the same in the form of CD - MO.18. Hence, the same can be relied upon by this court.
120. The learned counsel for accused No.1 and 3 argued that PW.21 and 26 stated that they received all the CDRs through e-mails, whereas, in Ex.P.16, 17, 42, 47 and Ex.D5, it is mentioned that CDR details are annexed with the letters. The said CDRs are not produced before this court. Hence, the CDRs produced by the prosecution are created for the purpose of this case. A perusal of Ex.P.16, it is mentioned that 46 pages of CDR was provided to the investigation officer. In Ex.P.17, it is 81 S.C.No.297/2013 mentioned that attested CDR is enclosed along with the letter. In Ex.P.42, it is clearly mentioned that CDRs were provided to the investigation officer through e-mail. It is mentioned in Ex.P.47 that CDR details is attached with the said letter. It is not mentioned whether it was furnished through e-mail or hard copy. The investigation officer has deposed that he collected the CDRs through email. Even PW.22 and 23 deposed that they submitted the CDRs through e-mail. Even during cross examination of PW.14, the accused persons have not elicited that the CDR was not furnished to the investigation officer through e-mail. Moreover, the accused persons themselves admitted that PW.22 and 23 provided CDRs to the investigation officer. Therefore, producing CDRs collected from the service providers in the form of electronic record is permissible under law. Moreover, non-production of hard copies of the CDRs is not fatal to the case of prosecution and the accused persons have not brought on record any material to show that the CDRs found in MO.18 are fabricated CDRs. Hence, this court does not find any merit in the arguments advanced by the learned counsel for accused No.1 and 3.
121. The learned counsel for accused No.1 and 3 argued before the court that no witnesses have seen using of mobile phones by accused No.2 and 3 in the prison. Even no witnesses have seen accused No.1 to 3 talking to each other over phone inside the prison. PW.5 categorically denied giving any statement before the police. Hence, the statement of PW.5 is fabricated by the investigating officer.
122. A perusal of the records, the accused persons got marked the portion of Ex.P.34 as Ex.D.1 in connection with the 82 S.C.No.297/2013 said contention. It is stated in the said document that there is no record to show that accused No.2 and 3 used mobile phones in the prison. It is pertinent to note that it is not the case of prosecution that accused No.2 and 3 were using mobile phones with the knowledge of the prison authorities. On the other hand, it is the case of prosecution that accused No.2 and 3 were using mobile phones in prison without the knowledge of the prison authorities. This court has experienced that some of the accused persons before this court in RC-10/2022/NIA/DLI were using mobile phones without the knowledge of the prison authorities and they were contacting their family members through the said phones from the prison. In this regard, the Chief Superintendent of Central Prison, Bengaluru lodged a complaint with the jurisdictional police and submitted the FIR and complaint before this court. Therefore, based on the letter issued by the prison authorities that there was no record to show that accused No.2 and 3 were using phones in the prison is not a ground to disbelieve the case of prosecution. On the other hand, the prosecution has produced sufficient materials before this court that accused No.2 and 3 used mobile phones in the prison.
123. As discussed supra, PW.5 clearly deposed in his evidence that accused No.1 to 3 used to meet with each other when they were left outside from the cell for breakfast and lunch. The accused persons have not elicited anything contrary to his evidence. Mere his admission that the investigation officer has not recorded his statement during cross examination is not a ground to discard his testimony. Hence, this court has declined to accept the submissions of the learned counsel for accused No.1 and 3.
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124. The learned counsel for accused No.1 and 3 argued that the mobile numbers used by accused No.2 and 3 are post paid numbers and periodically recharged from some place. The investigation officer has not investigated where the aforesaid mobile numbers were recharged. Hence, it creates doubt about the case of prosecution. It is pertinent to note that as per the evidence of prosecution most of the mobile numbers used by accused No.2 and 3 are prepaid numbers. If a person subscribes a mobile number in Bengaluru, he can recharge his mobile number anywhere in the State of Karnataka. He need not go to the office or shop where he purchased the Sim Card to recharge his mobile number. Further, the person who purchased the Sim Card need not go to the office or shop where he purchased Sim Card to recharge his mobile number. Anybody can recharge his mobile number from any place. Therefore, it is not fatal to the case of prosecution that the investigation officer has failed to conduct investigation in respect of recharge of mobile numbers used by accused No.2 and 3.
125. The learned counsel for accused No.1 and 3 argued that PW.16 is not a notified authority under section 79A of Information Technology Act and his evidence cannot be considered as per the mandate of section 45A of the Evidence Act. In support of his argument, he has placed reliance on para 28 of the decision in Sri Prathap Vs. The State of Karnataka, Crl.A.No.633/2014 C/W Cr.A. No.572/2014, 597/2014, 630/2014.
126. This court has gone through the aforesaid decision and there is no dispute in the observation made by the Hon'ble High 84 S.C.No.297/2013 Court of Karnataka. In this case, a perusal of evidence of PW.16, he has not retrieved anything from any electronic device and he has not furnished any CDR before this court. He only assisted the investigation officer in preparing the call charts between accused No.1 to 3 by using power point and took the printouts as per the direction of the investigation officer. Further, he assisted the investigation officer to find out the tower location of mobile numbers based on the Cell ID address. He has not analyzed anything in this case. The original CDRs are placed before this court by the investigation officer. Therefore, the evidence of PW.16 cannot be discarded on the ground that he prepared contact list of mobile numbers of accused No.1 to 3. Even the evidence of PW.16 is excluded from the record, there are other evidence to show that accused No.1 to 3 contacted with each other. Hence, this court does not find any merit in the argument of the learned counsel for accused No.1 and 3.
127. The learned counsel for accused No.1 and 3 argued that accused No.1 was arrested on 07.05.2012 and the investigation officer sent requisition to furnish CDRs of mobile numbers implicated in this case on 24.04.2012 itself. On the same day, the investigation officer collected the CDRs. He further argued that accused No.1 was arrested one week before the alleged date of arrest shown in the records and the entire case is built up based on the CDRs collected by the investigation officer and implicated the accused persons falsely in this case. In this regard, the prosecution itself produced the documents and got it marked as Ex.P.123.
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128. In respect of the arrest, accused No.1 himself admitted during recording of his statement that certain articles were seized from his possession and accused No.1 to 3 admitted that on the date of arrest itself a case was registered by PW.20. The prosecution has placed other sufficient materials to prove that accused No.1 was arrested on 07.05.2012 as discussed supra. The said admissions of the accused persons falsify the contention that accused No.1 was arrested one week before the date of arrest shown in the records.
129. It appears from the records that PW.14, 22 and 23 deposed in their evidence that they furnished the CDRs at the request of the investigation officer. They provided the CDRs up to 07.05-2012. Even on perusal of MO.18, the investigation officer collected the CDRs upto 07.05.2012. If the investigation officer had collected the CDRs on 24.04.2012 itself as submitted by the learned counsel for accused No. 1 and 3, the CDRs produced by the investigation officer should contain the CDR details up to 24.04.2012, but not beyond that period. Therefore, this court has to consider the evidence as a whole to appreciate the facts before this court. Further, the learned counsel for the accused has raised this contention for the first time before the court during arguments. He has not put any suggestions to any witness that the CDRs were collected before the arrest of accused No.1 during trial. Moreover, as discussed supra, the learned counsels for accused have not elicited that the CDRs produced by the investigation officer are fabricated except he put suggestions to the witnesses in this regard. Hence, this court does not find any substance in the submission of the learned counsel for accused No.1 and 3.
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130. It is the case of the prosecution that accused No.1 was using mobile No.9060729118, 82201-20820, 98809-79347 and 90356-98554. In order to prove the said fact, the prosecution has placed reliance on the oral evidence of PW.1 - Sri Abdul Samad, PW.2- Sri K.C. Ashokan, PW.3 - Sri P.S. Jain, PW.20 - Sri R. Manjunath and PW.21 - Sri Chalapathi and documentary evidence at Ex.P.1, 38, 39, 40, 41, 44, 45, 46, 53, 62, 65, 66, 69, MO.3, 4 and 18.
131. As discussed supra, PW.2 deposed in his evidence that he seized two Nokia company mobiles and four SIM cards from the possession of accused No.1 in the presence of PW.1 and CW.3 - Sri Chandregowda. PW.1 - Sri Abdul Samad deposed in his evidence that he was present at the time of seizing two mobile phones and four SIM cards from the possession of accused No.1.
132. PW.20 - Sri R. Manjunath deposed in his evidence that PW.2 - Sri K.C. Ashokan produced a red colour Nokia mobile, black colour Nokia mobile along with other articles in a sealed condition. The said articles were subjected to P.F.No.113/2012 and produced before the Court.
133. PW.21 - Sri Chalapathi deposed in his evidence that he recorded the voluntary statement of accused No.1 and accused No.1 disclosed in his voluntary statement that he was using mobile No.9060729118, 82201-20820, 98809-79347 and 90356-98554. he further deposed that he collected the CDRs of the aforesaid mobile numbers from the concerned service providers and he identified the said CDRs in his evidence.
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134. This court perused the mobile phones - MO.3 and 4 which were seized from the possession of accused No.1 to cross verify the IMEI numbers mentioned in the said mobile phones and the IMEI numbers mentioned in the CDR provided by the concerned service providers. MO.3 - red colour Nokia company mobile is a dual Sim mobile and it has IMEI numbers as 35169605015092 and 35169605015093. MO.4 - black colour Nokia Mobile phone is also a dual Sim mobile and it has IMEI numbers as 35240805196072 and 35240805196073.
135. A perusal of Ex.P.1 - mahajar, it is mentioned that two Sim cards were inserted to a saffron and black colour mobile i.e., MO.3 and accused No.1 disclosed that the mobile numbers of the said Sim cards are 9060729118 and 82201-20820. Likewise, two Sim cards were inserted to a black colour mobile i.e., MO.4 and accused No.1 disclosed that the mobile numbers of the said Sim cards are 98809-79347 and 90356-98554.
136. A perusal of Ex.P.62 and MO.18, IMEI Nos. 35240805196072 and 35240805196073 were used to make calls from mobile No.9035698554. A perusal of Ex.P.65, 66, 69 and MO.18, IMEI No.35240805196072 and 35240805196073 were used to make calls from mobile No.9880979347. As per Ex.P.1, the aforesaid mobile numbers were inserted to M.O.4 which has IMEI Nos.35240805196072 and 35240805196073.
137. A perusal of MO.18, IMEI Nos.35169605015092 and 35169605015092 were used to make calls from mobile No.9060729118 and no IMEI number is recorded in MO.18 in respect of mobile No.8220120802. As per Ex.P.1, the aforesaid 88 S.C.No.297/2013 mobile numbers were inserted to M.O.4 which has IMEI Nos.35169605015092 and 35169605015093.
138. As discussed supra, this Court has already come to the conclusion that the prosecution has proved beyond reasonable doubt that MO.3 and MO.4 - mobile phones were seized from the possession of accused No.1. The aforesaid documents produced by the prosecution clearly indicate that accused No.1 had been using the aforesaid mobile numbers before his arrest by the PW.2.
139. The learned counsel for accused No.1 and 3 argued before the court that the CAFs collected by the investigation officer are standing in the names of different persons. The investigation officer has not examined the persons mentioned in the CAFs and the investigation officer has also admitted the same during cross examination. Hence, there is no material to connect accused No.1 to the said mobile numbers. In this regard, this court has gone through the evidence of PW.21. He deposed in his evidence that he made efforts to contact the persons mentioned in the CAFs, but they were not traceable. Hence, he could not examine those persons. As discussed supra, the prosecution has placed evidence to show that MO.3 and 4 and 4 Sim cards were seized from the possession of accused No.1 and also he used MO.3 and 4 to make calls from the above said mobile numbers. Hence, accused No.1 has to explain before this Court that how he came in possession of SIM cards bearing mobile numbers 9060729118, 82201-20820, 98809-79347 and 90356-98554 during recording his statement under Section 313 of Cr.P.C. But, 89 S.C.No.297/2013 accused No.1 has not offered any explanation in this regard. Moreover, none of the subscribers of Mobile numbers 9060729118, 9060729118, 82201-20820, 98809-79347 and 90356-98554 which were seized from the possession of accused No.1 approached this court claiming that those mobile numbers were belonged to them. In the absence of any explanation from accused No.1, this Court can draw presumption under Section 114 of the Indian Evidence Act that accused No.1 was using mobile numbers 9060729118, 82201-20820, 98809-79347 and 90356-98554 before his arrest by PW.2. Therefore, this Court can safely come to the conclusion that accused No.1 had been using the mobile SIM cards bearing mobile Nos.9060729118, 82201- 20820, 98809-79347 and 90356-98554 immediately before his arrest by the Police.
140. It is the case of the prosecution that accused Nos.2 and 3 were using mobile numbers 9632144042, 9141844490, 9241372337 and 9739091622 when they were in prison. In this regard, the prosecution has placed reliance on the oral evidence of PW.21 - Sri Chalapathi and PW.16 - Sri Suresh Babu S.S., and documentary evidence at Ex.P.74, Ex.P.75, Ex.P.76, Ex.P.77, Ex.P.78, Ex.P.79, Ex.P.80, Ex.P.81, Ex.P.82, Ex.P.83, Ex.P.84, Ex.P.85, Ex.P.87, Ex.P.88, Ex.P.21, Ex.P34 and MO.18.
141. As discussed supra, PW.21 - Sri Chalapathi deposed in his evidence that he collected the CDRs in respect of mobile numbers 9632144042, 9141844490, 9241372337 and 9739091622 from the respective service providers. He directed PW.16 who is an expert in computer application to prepare a call 90 S.C.No.297/2013 chart. Accordingly, PW.16 prepared charts showing the calls between the accused persons. He further deposed that as per the analysis report, accused No.2 and 3 were using the aforesaid mobile numbers.
142. PW.16 - Sri Suresh Babu S.S., deposed in his evidence that the investigation officer provided 10 mobile numbers to him and directed him to prepare a chart showing the contacts between the said 10 mobile numbers. Accordingly, he prepared charts with the help of power point showing the calls between each number and thereafter took the printouts and submitted to the Investigating Officer and he identified the documents prepared by him during his evidence.
143. A perusal of Ex.P.74, Ex.P.75 and Ex.P.76, the tower location of mobile number 9632144042 is constantly shown as Electronic City, Bengaluru from 30.11.2011 to 01.01.2012 and location of Katnoor, Gulbarga is constantly shown after 17.01.2012. This Court has cross verified the cell ID address shown in Ex.P.74 to Ex.P.76 and MO.18 and they are one and the same. In corroboration of these documents, the prosecution has produced Ex.P.21 and Ex.P.34 before this Court. It is evident from Ex.P.21 that accused No.2 was detained in Central Prison, Bengaluru until 10.12.2011 and thereafter, he was shifted to Mysuru. Accused No.3 was detained in Central Prison, Bengaluru until 19.12.2011 and subsequently, he was shifted to convicted prisoners cell as he was convicted. A perusal of Ex.P.34, accused No.2 was shifted to Central Prison, Gulbarga on 21.12.2011 and accused No.3 was shifted to Central Prison, Gulbarga on 91 S.C.No.297/2013 03.01.2012 and they were detained in Central Prison, Gulbarga till registration of this case. The tower location of mobile No.9632144042 shows Bengaluru location until 01.01.2012. Subsequently, it shows the tower location of Gulbarga. The aforesaid facts clearly indicate that accused No.3 was using mobile No.9632144042.
144. As could be seen from Ex.P.77, 79, 80 and 81, the tower location of mobile No.9739091622 is constantly shown as Kotnoor, Gulbarga after accused No.2 and 3 were shifted to Gulbarga. A perusal of Ex.P.82 to 86, the tower location of mobile number 9141844490 is constantly shown as Gulbarga when accused No.2 and 3 were in Central Prison Gulbarga. A perusal of Ex.P.87 and 88, the tower location of mobile No.9241372337 is constantly shown as Gulbarga. At the relevant point of time, accused No.2 and 3 were in Central Prison, Gulbarga.
145. It is pertinent to note that the tower location found in the aforesaid documents are not found in MO.18, but the cell ID addresses are available in the said documents as well as MO.18. This court has cross verified the cell ID addresses furnished by the respective service providers in MO.18 with the cell ID addresses mentioned in the aforesaid documents and they are tallied with each other. A careful perusal of the CDRs available in MO.18 indicates a single location most of the time and it is manifest that the persons, who used the aforesaid mobile numbers, were in a single location. During the cross-examination, the learned counsel for accused Nos.1 to 3 have not elicited anything contrary to the evidence of PW.21 and Ex.P.21 and 92 S.C.No.297/2013 Ex.P.34 except denying the allegations made against accused Nos.1 to 3. They have not denied that the tower location mentioned in the said documents are not correct. The accused persons could have summoned the tower location of the Cell ID addresses found in the aforesaid documents from the respective service providers during the trial to show that the investigation officer fabricated the said documents. The accused persons have not made any efforts to show that the aforesaid documents are fabricated for the purpose of this case. In the absence of any efforts by the accused persons, this court can rely upon the said documents as the cell ID addresses mentioned in the said documents are tallied with the cell ID addresses mentioned in MO.18.
146. A perusal of cross-examination of PW.16, the learned counsel for accused Nos.1 and 3 put suggestion to PW.16 at page 6 para No.14 as follows : "It is true to suggest that I prepared call chart segregation as per the instructions of the Investigating Officer."
147. This suggestion clearly indicates that accused Nos.1 to 3 have admitted that PW.16 prepared call charts as per Ex.P.74 to Ex.P.88 and this suggestion corroborates the evidence of prosecution witnesses. Even the accused persons got marked the report submitted by the PW.16 as Ex.D.2. It is clearly mentioned in the said document that PW.16 prepared the call charts and took the print out of the same. This document also corroborates the evidence of PW.16.
148. It is the contention of the learned counsels for accused Nos.1 to 3 that the customer application forms are 93 S.C.No.297/2013 standing in the names of some other persons and the prosecution has not examined such persons to connect accused No.2 and 3 to the said mobile numbers. In this regard, this Court has perused the customer application form in respect of mobile No.9632144042. As per the said document i.e., Ex.P.71, one Smt. Fathima w/o Bada Basha was the subscriber of the aforesaid mobile number. The address given in the said customer application form is Sampangirama Nagar, 7th Cross, Jayanagar, Bengaluru. But the tower location is continuously shown in Electronic City, Bengaluru and Kotnoor, Gulbarga. As per Ex.P.72, the subscriber of the aforesaid mobile number is not the resident of Electronic City or Gulbarga. On the contrary, the documents produced by the prosecution i.e., Ex.P.21 and Ex.P.34 indicate that accused No.3 carried the aforesaid mobile number with him when he was shifted from Central Prison, Bengaluru to Central Prison, Kalaburagi.
149. The prosecution got marked the CAF relating to mobile No.9739091622 as Ex.P.18. As per the said document, one Sri. Sai Usman S/o Sai Yousuf was the subscriber of the aforesaid mobile number. The address given in the said customer application form is Halisagar, Shapur, Yadgir District. But the tower location is continuously shown in Kotnoor, Gulbarga. As per Ex.P.18, the subscriber of the aforesaid mobile number is not the resident of Gulbarga.
150. The prosecution got marked the CAF relating to mobile No.9241372337 as Ex.P.43. As per the said document, one Sri. Sai Usman S/o Sai Yousuf was the subscriber of the aforesaid 94 S.C.No.297/2013 mobile number. The address given in the said customer application form is Halisagar, Shapur, Yadgir District. But the tower location has been continuously shown in Kotnoor, Gulbarga. As per Ex.P.43, the subscriber of the aforesaid mobile number is not the resident of Gulbarga. Surprisingly, the same person, who subscribed mobile No.9739091622, subscribed this mobile number as well.
151. As discussed supra, none of the subscribers are the residents of electronic city, Bengaluru or Kotnoor, Gulbarga, but the tower location of all the mobile numbers show electronic city, Bengaluru and Kotnoor, Gulbarga. The investigation officer has deposed that he made efforts to enquire those persons, but those persons were not traceable. Therefore, even though the prosecution failed to examine the subscribers of the aforesaid mobile numbers is not fatal to the case of the prosecution. The other material produced before this Court clearly establishes that accused No.2 and 3 were using the aforesaid mobile numbers when they were in central prison Bengaluru and Kalaburagi.
152. It is the case of prosecution that accused No.1 to 3 contacted with each other when they were in Central Prison, Bengaluru and they continued their contact through mobile phone even after release of accused No.1 on bail. In order to prove the said facts, the prosecution has placed reliance on the oral evidence of PW.21, Ex.P.38 to 41, 65, 69, 74, 76, 80, 81, 85, 87, Ex.P.107 to 110, 112, 113 and 115 to 117 and MO.18.
153. PW.21 - Sri Chalapathi deposed in his evidence that accused No.1 to 3 were in contact with each other when they were 95 S.C.No.297/2013 in Central Prison, Bengaluru. In this regard, he collected the evidence. He further deposed that accused No.2 and 3 were in contact with accused No.1 even after he was released on bail. Accused No.1 to 3 used to contact with each other over phone. In this regard, he collected the CDRs from the respective service providers. He has stated the mobile numbers in which accused No.1 to 3 contacted, the number of calls and messages exchanged by themselves as per his analysis. He has identified the analysis reports and charts prepared by him through PW.16.
154. As could be seen from P.38, 75 and MO.18, accused No.1 to 3 contacted with each other from mobile numbers 9060729118 and 9632144042 many times. The said details are shown as under :
Mobile Mobile Call date Call Time Call Call IMEI Number of IMEI Number of Number used Number duration Type mobile mobile by accused used by (in No.9060729118 No.9632144042 No.1 accused seconds) No.2 and 3 9060729118 9632144042 15.03.2012 10:39:32 AM 238 MTC 351696050150920 359345028076460 9060729118 9632144042 15.03.2012 2:51:52 PM 47 MTC 351696050150920 359345028076460 9060729118 9632144042 16.03.2012 3:23:32 PM 116 MTC 351696050150920 359345028076460 9060729118 9632144042 16.03.2012 4:01:15 PM 27 MTC 351696050150920 359345028076460 9060729118 9632144042 16.03.2012 4:46:23 PM 71 MTC 351696050150920 359345028076460 9060729118 9632144042 16.03.2012 6:18:10 PM 16 MTC 351696050150920 359345028076460 9060729118 9632144042 17.03.2012 11:47:57 AM 112 MTC 351696050150920 359345028076460 9060729118 9632144042 17.03.2012 3:13:41 PM 69 MTC 351696050150920 359345028076460 9060729118 9632144042 17.03.2012 3:15:15 PM 108 MTC 351696050150920 359345028076460 9060729118 9632144042 18.03.2012 11:45:47 AM 127 MOC 351696050150920 359345028076460 9060729118 9632144042 18.03.2012 2.00:38 PM 82 MOC 351696050150920 359345028076460 9060729118 9632144042 19.03.2012 4:55:10 PM 12 MTC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 8.27:20 AM 59 MTC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 10:17:44 AM 57 MTC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 10:34:25 AM 36 MOC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 11:00:40 AM 24 MTC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 11:34:33 AM 69 MTC 351696050150920 359345028076460 9060729118 9632144042 20.03.2012 4:34:37 PM 107 MTC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 10:26:20 AM 126 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 2:02:51 AM 40 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 2:08:42 PM 72 MOC 351696050150920 359345028076460 96 S.C.No.297/2013 9060729118 9632144042 21.03.2012 2:16:01 PM 100 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 2:57:41 PM 80 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:07:16 PM 38 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:11:18 PM 118 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:15:32 PM 28 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:16:28 PM 49 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:18:32 PM 119 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:25:04 PM 167 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:39:15 PM 37 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:41:06 PM 30 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:42:52 PM 60 MTC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:44:21 PM 23 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 3:48:03 PM 34 MOC 351696050150920 359345028076460 9060729118 9632144042 21.03.2012 5:44:23 PM 121 MOC 351696050150920 359345028076460 9060729118 9632144042 22.03.2012 2:56:35 PM 61 MTC 351696050150920 353185039912100
155. As could be seen from Ex.P.39, 80 and MO.18, accused No.1 to 3 contacted with each other from mobile numbers 9060729118 and 9739091622 many times. The said details are shown as under :
Mobile Mobile Call date Call Time Call Call IMEI Number of IMEI Number of Number Number used duration Type mobile mobile used by by accused (in No.9060729118 No.9739091622 accused No.2 and 3 seconds) No.1 9060729118 9739091622 04.04.2012 09:13:25 PM 191 MTC 351696050150920 357424049517540 9060729118 9739091622 04.04.2012 09:17:03 AM 2 MTC 351696050150920 357424049517540 9060729118 9739091622 05.04.2012 3:26:51 PM 47 MTC 351696050150920 357424049517540 9060729118 9739091622 09.04.2012 4:34:18 PM 180 MTC 351696050150920 357424049517540 9060729118 9739091622 10.04.2012 4:56:02 PM 134 MTC 351696050150920 357424049517540 9060729118 9739091622 15.04.2012 11:00:29 AM 32 MTC 351696050150920 351929051338100 9060729118 9739091622 15.04.2012 3:38:23 PM 56 MTC 351696050150920 351929051338100 9060729118 9739091622 15.04.2012 3:39:54 PM 12 MTC 351696050150920 351929051338100 9060729118 9739091622 15.04.2012 4:25:49 PM 226 MTC 351696050150920 351929051338100 9060729118 9739091622 25.04.2012 4:54:51 PM 208 MTC 351696050150920 351929051338100 9060729118 9739091622 03.05.2012 5:39:07 PM 43 MOC 351696050150920 351929051338100
156. It is evidence from Ex.P.40, 84 and MO.18 that accused No.1 to 3 contacted with each other from mobile numbers 9060729118 and 9141844490 twice. The said details are shown as under :
97S.C.No.297/2013 Mobile Mobile Call date Call Time Call Call IMEI Number of IMEI Number of Number Number duration Type mobile mobile used by used by (in No.9060729118 No.9141844490 accused accused seconds) No.1 No.2 and 3 9060729118 9141844490 04.04.2012 5:21:00 PM 90 MTC 351696050150920 E2031580 9060729118 9141844490 25.04.2012 2:30:30 PM 24 MOC 351696050150920 E2031580
157. It is evident from Ex.P.65, 85, 124 and MO.18 that accused No.1 to 3 contacted with each other from mobile numbers 9880979347 and 9141844490 for one time. The chart showing the call between accused No.1 to 3 with the aforesaid numbers is as under :
Mobile Mobile Call date Call Time Call Call IMEI Number of IMEI Number of Number Number duration Type mobile mobile used by used by (in No.9880979347 No.9141844490 accused accused seconds) No.1 No.2 and 3 9880979347 9141844490 29.04.2012 12:08:03 PM 35 IN 352408051960720 E2031580
158. A perusal of Ex.P.69, 81 and MO.18, accused No.1 to 3 contacted with each other from mobile numbers 9880979347 and 9739091622 for two times. The chart showing the calls between accused No.1 to 3 with the said mobile numbers is as under :
Mobile Mobile Call date Call Time Call Call IMEI Number of IMEI Number of Number Number duration Type mobile mobile used by used by (in No.9880979347 No.9739091622 accused accused seconds) No.1 No.2 and 3 9880979347 9739091622 29.04.2012 12:05:11 PM 21 OUT 352408051960720 351929051338100 9880979347 9739091622 29.04.2012 11:24:02 PM 26 OUT 352408051960720 351929051338100
159. A perusal of Ex.P.87 and MO.18, accused No.1 to 3 contacted with each other from mobile numbers 9060729118 and 9241372337 for three times. The chart showing the calls between accused No.1 to 3 with the aforesaid mobile numbers is as under :
Mobile Mobile Call date Call Time Call Call Type IMEI Number of IMEI Number of Number Number duration mobile mobile used by used by (in No.9241372337 No.9060729118 accused accused seconds) No.2 and 3 No.1 9241372337 9060729118 30.04.2012 12:19 166 OUT 806A8F2D 351696050150930 VOICE 98 S.C.No.297/2013 9241372337 9060729118 04.05.2012 8:37 238 OUT 806A8F2D 351696050150930 VOICE 9241372337 9060729118 07.05.2012 12:31 135 OUT 806A8F2D 351696050150930 VOICE
160. The aforesaid details clearly go to show that accused No.1 to 3 contacted with each other over mobile phones. The said details will be discussed after taking note of the calls between accused No.1 to 3 and their foreign associates.
161. It is the case of prosecution that accused No.2 had contact with his associate Bhai through mobile phone. The said Bhai contacted accused No.1 from Saudi Arabia and the said Bhai is the brother of accused No.1. In order to prove the said facts, the prosecution has placed reliance on the oral evidence of PW.2, PW.21, Ex.P.2, Ex.P.26, Ex.P.45 and MO.18.
162. PW.2 - Sri K.C. Ashokan deposed that he was informed by the informant that accused No.2 and 3 made accused No.1 contact over phone with Lasker-e-Toiba co-operating at Pakistan and UAE members and he continued constant contact with LeT operatives. The same facts have been stated in the First Information Statement - Ex.P.2.
163. PW.21 - Sri Chalapathi deposed in his evidence that accused No.1 received calls from Mobile No.966503021920 to his mobile No.9060729118. The said mobile number is used in Saudi Arabia and he collected and produced the CDR pertaining to mobile number 9060729118.
164. A perusal of Ex.P.26, accused No.1 has disclosed that one Bhai used to contact him from Saudi Arabia from his mobile number 966503021920 and he came to know that the said Bhai is 99 S.C.No.297/2013 the brother of accused No.2. He has further disclosed that the said Bhai gave his mobile number 71555665481 a week before from the date of his arrest and he made calls to the said number from his mobile number 9035698554.
165. It reveals from Ex.P.45 and M.O.18 that accused No.1 and the said Bhai contacted with each other with phone numbers 9060729118 and 966503021920. The said details is shown as under:
Mobile number Phone number Call date Call time Call duration Call IMEI Number of mobile of accused No.1 of Bhai, (in seconds) Type No.9060729118 9060729118 966503021920 25.04.2012 12:08:29 PM 144 MTS 351696050150920 9060729118 966503021920 25.04.2012 1:05:00 PM 0 SMS 351696050150920 9060729118 966503021920 30.04.2012 4:52:40 PM 47 MTS 351696050150930 9060729118 966503021920 01.05.2012 7:25:00 PM 45 MTS 351696050150930 9060729118 966503021920 05.05.2012 6:55:07 PM 0 SMS 351696050150930 9060729118 966503021920 05.05.2012 7:19:44 PM 160 MOC 351696050150930
166. It is evident from MO.18 that accused No.1 and the said Bhai contacted with each other from phone number 9035698554 and 9715556654481. The said details are shown as under;
Mobile number Phone Number Call date Call time Call duration Call Type IMEI Number of mobile of accused No.1 of Bhai, (in seconds) No.9035698554 9035698554 9715556654481 04.05.2012 02:06:24 PM 71 Invoice 352408051960720 9035698554 9715556654481 04.05.2012 02:08:24 PM 341 Invoice 352408051960720 9035698554 9715556654481 04.05.2012 02:15:02 PM 164 Invoice 352408051960720 9035698554 9715556654481 05.05.2012 06:55:07 PM 0 SMSMO 352408051960720 9035698554 9715556654481 05.05.2012 07:19:44 PM 160 MOC 352408051960720 9035698554 9715556654481 05.05.2012 06:47:40 PM 1 Out SMS 352408051960720 9035698554 9715556654481 05.05.2012 06:48:42 PM 1 Out SMS 352408051960720 9035698554 9715556654481 05.05.2012 08:03:41 PM 1 IN SMS 352408051960720 9035698554 9715556654481 05.05.2012 08:18:02 PM 10 Invoice 352408051960720 9035698554 9715556654481 05.05.2012 08:20:19 PM 29 Invoice 352408051960720 9035698554 9715556654481 05.05.2012 08:22:29 PM 21 Invoice 352408051960720 9035698554 9715556654481 05.05.2012 08:24:11 PM 1 Out SMS 352408051960720 9035698554 9715556654481 05.05.2012 08:27:39 PM 1 IN SMS 352408051960720 9035698554 9715556654481 05.05.2012 08:45:58 PM 1 Out SMS 352408051960720 9035698554 9715556654481 05.05.2012 09:53:29 PM 1 Out SMS 352408051960720 100 S.C.No.297/2013 9035698554 9715556654481 05.05.2012 09:54:42 207 Invoice 352408051960720 9035698554 9715556654481 05.05.2012 10:00:47 1 Out SMS 352408051960720
167. A careful perusal of the above said oral as well as documentary evidence, the prosecution has placed material to show that accused No.1 and one Bhai contacted with each other over phone before registration of this case. The evidence of prosecution witnesses is in corroboration with the documentary evidence produced by the prosecution. The admissions made by accused No.1 in his voluntary statement are proved with cogent and convincing evidence. As discussed supra, any facts discovered based on the admissions made by accused No.1 in his voluntary statement is a guarantee of the truth. Hence, the prosecution has proved beyond reasonable doubt that accused No.1 and one Bhai were in contact with each other with cogent and convincing evidence.
168. It is the case of the prosecution that accused No.2 and 3 had contact with their foreign associates when they were in jail. In order to prove the said facts, the prosecution has placed reliance on documentary evidence at MO.18.
169. It is evident from MO.18 that accused No.2 and 3 contacted their foreign associates with mobile numbers 9632144042, 9141844490, 9739091622 and 9241372337. Accused No.2 and 3 and their foreign associates contacted each other with phone numbers 9632144042 and 59158768932. The said details are shown as under;
Mobile number Phone number Call date Call time Call duration Call Type IMEI Number of
of accused No.2 of Foreign (in seconds) mobile
and 3 associates No.9632144042
9632144042 59158768932 15.02.2012 11:57:18 177 IN 359345028076460
101
S.C.No.297/2013
170. Accused No.2 and 3 and their foreign associates contacted each other with phone numbers 9141844490 and 966503021920. The said details are shown as under;
Mobile number Phone number Call date Call time Call duration Call Type IMEI Number of
of accused No.2 of Foreign (in seconds) mobile
and 3 associates No.9141844490
9141844490 966503021920 03.04.2012 10:01:14 281 IN E2031580
171. Accused No.2 and 3 contacted their Foreign associates with phone number 9739091622 to their associates phone numbers. The said details are shown as under;
Mobile number Phone number Call date Call time Call duration Call Type IMEI Number of
of accused No.2 of Foreign (in seconds) mobile
and 3 associates No.9739091622
9739091622 75070620897 19.04.2011 11:14:41 19 INC 358264048708310
9739091622 99000855186 23.04.2011 07:32:07 27 OUT 351708048283570
9739091622 99000855186 23.04.2011 07:46:14 14 OUT 351708048283570
9739091622 98808084576 25.04.2011 10:55:50 60 OUT 351708048283560
9739091622 98808012235 15.05.2011 11:51:51 33 OUT 355221037741460
9739091622 99020660260 16.05.2011 17:38:32 28 OUT 355221037741460
9739091622 99729055578 21.05.2011 11:49:56 26 OUT 355221037741460
9739091622 98453924231 27.05.2011 10:44:36 8 OUT 355221037741460
9739091622 96633309804 07.06.2011 16:33:42 1 OUT 355221037741460
9739091622 97411715866 13.07.2011 16:52:44 26 OUT 355221037741460
9739091622 97411715866 13.07.2011 16:53:41 6 OUT 355221037741460
9739091622 99727777136 14.07.2011 08:59:17 11 OUT 355221037741460
9739091622 776036334910 24.07.2011 10:10:24 19 OUT 356243043511840
9739091622 99451919832 26.07.2011 07:36:05 26 OUT 356243043511840
9739091622 98806488825 18.08.2011 09:01:59 11 OUT 356243043511840
9739091622 81051236501 18.08.2011 17:03:39 219 OUT 356243043511840
9739091622 966543665921 22.09.2011 16:39:18 116 OUT 358264048708310
9739091622 99015512254 22.09.2011 16:44:38 12 OUT 358264048708310
9739091622 99025255959 27.09.2011 12:44:07 14 OUT 358264048708310
9739091622 99025255959 28.09.2011 07:55:05 27 OUT 358264048708310
9739091622 91777169130 31.12.2011 16:09:05 23 OUT 353504027005560
9739091622 98808873088 05.02.2012 11:37:02 132 OUT 357424049517540
9739091622 77956821966 08.02.2012 17:47:59 23 OUT 357424049517540
9739091622 98456622281 13.02.2012 15:30:03 34 OUT 357424049517540
9739091622 96861661451 22.03.2012 10:15:41 18 OUT 357424049517540
9739091622 99014833108 14.04.2012 07:07:38 19 OUT 868412000018600
9739091622 38581369082 19.04.2012 09:54:16 38 INC 351929051338100
9739091622 88627231281 19.04.2012 11:11:19 38 OUT 351929051338100
9739091622 21240620372 20.04.2012 17:27:06 16 INC 351929051338100
102
S.C.No.297/2013
9739091622 905641688509 27.04.2012 17:35:26 30 INC 351929051338100
9739091622 81059000986 11.05.2012 11:23:19 27 OUT 351929051338100
9739091622 77606084358 21.05.2012 07:27:41 24 OUT 351929051338100
172. Accused No.2 and 3 and their foreign associates contacted each other with phone numbers 9241372337 and 92913038101. The said details are shown as under;
Mobile number Phone no. of Call date Call time Call Call Type IMEI Number
of accused No.2 Foreign Nationals, duration of mobile
and 3 (in seconds) No.924137233
7
9241372337 92913038101 06.05.2012 09:04:48 497 Out voice 806A8F2D
173. A careful perusal of the aforesaid evidence, the prosecution has placed sufficient materials to show that accused No.2 and 3 contacted their associates who reside outside India before registration of this case.
174. It is evident from the aforesaid evidence that accused No.2 and 3 received calls from foreign country to a particular mobile/device and the same mobile/device was used to contact accused No.1. As per MO.18, accused No.2 and 3 received a call to their mobile number 9632144042 from a foreign number 59158768932 on 15.02.2012 and the IMEI number of the said device/mobile is 359345028076460. Accused No.2 and 3 made the calls many times to the mobile number of accused No.1 i.e., 9060729118 by using the same device/mobile bearing IMEI number 359345028076460.
175. As could be seen from MO.18 that accused No.2 and 3 made a call from their mobile number 9241372337 to a foreign number 87568761666 on 06.05.2012 and the IMEI number of the said device/mobile is 806A8F2D. Accused No.2 and 3 made calls 103 S.C.No.297/2013 to the mobile number of accused No.1 i.e., 9060729118 by using the same device/mobile bearing IMEI number 806A8F2D.
176. As per MO.18, accused No.2 and 3 received a call to their mobile number 9141844490 from a foreign number 966503021920 on 03.12.2012 and the IMEI number of the said device/mobile is E2031580. Accused No.2 and 3 called the mobile number of accused No.1 i.e., 9060729118 by using the same device/mobile bearing IMEI number E2031580.
177. As could be seen from MO.18 that accused No.2 and 3 made calls from their mobile number 9739091622 to a foreign numbers 98808873088, 77956821966, 98456622281 and 96861661451 on 05.02.2012, 08.02.2012, 13.02.2012 and 22.03.2012 respectively and the IMEI number of the said device/mobile is 357412049517540. Accused No.2 and 3 made calls to the mobile number of accused No.1 i.e., 9060729118 by using the same device/mobile bearing IMEI number 351696050150920.
178. It reveals from MO.18 that accused No.2 and 3 made calls and received calls from their mobile number 9739091622 to a foreign numbers 38581369082, 88627231281, 21240620372, 905641688509, 81059000986 and 77606084358 on 19.04.2012, 20.04.2012, 27.04.2012, 11.05.2012 and 21.05.2012 respectively and the IMEI number of the said device/mobile is 351929051338100. Accused No.2 and 3 made calls to the mobile number of accused No.1 i.e., 9060729118 by using the same device/mobile bearing IMEI number 351696050150920.
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179. It is evident from the aforesaid evidence that on 03.04.2012 accused No.2 and 3 received a call from mobile number 966503021920 from a person by name Bhai as per the case of prosecution to their mobile number 9141844490. On 04.04.2012, accused No.2 and 3 called from the same mobile number to the mobile number of accused No.1 i.e., 9060729118. On 25.04.2012, again accused No.2 and 3 called from the same mobile number to the mobile number of accused No.1 i.e., 9060729118. On 29.04.2012, accused No.2 and 3 called from the same mobile number to the mobile number of accused No.1 i.e., 9880979347. Accused No.2 and 3 contacted accused No.1 as discussed supra on different mobile numbers.
180. A careful analysis of the prosecution witnesses, CDRs and analysis report submitted by the investigation officer, accused No.1 to 3 came in contact with each other when they were in Central Prison, Bengaluru. Accused No.1 released on bail on 31.12.2011 and accused No.2 and 3 were transferred to Central Prison, Gulbarga. Accused No.2 and 3 frequently contact their foreign associates over phone. Accused No.2 and 3 contacted accused No.1 by using the same phone numbers. Accused No.2 and 3 used the same mobile numbers with different devices and the same devices ware used to contact their foreign associates and accused No.1. Hence, the prosecution has placed sufficient materials before the court to prove that accused No.1 to 3 were in touch with each other and proved the said facts beyond reasonable doubt with cogent and convincing evidence.
181. It is the case of the prosecution that the revolver seized from the possession of accused No.1 is a firearm and it 105 S.C.No.297/2013 was in working condition, bullets seized from his possession are live bullets and the articles seized at the instance of accused No.1 are explosive substances. In order to prove the said facts, the prosecution has relied upon the oral evidence of PW.21 - Sri Chalapathi, PW.7 - Sri B.C. Ravindra, PW.8 - Sri C. Narasegowda, PW.15 - Sri Manjunatha V., and documentary evidence at Ex.P.8, Ex.P.12, Ex.P.13, Ex.P.14, Ex.P.15, Ex.P.19, Ex.P.20, Ex.P.33 and MO.11 to MO.13.
182. PW.21 has deposed in his evidence that on 12.06.2012, he sent the articles seized under P.F.No.57/2012 i.e., revolver and live bullets to FSL through P.C. - Sri Manjunath for examination. He further deposed that on 13.06.2012, he sent the articles seized under P.F.No.59/2012 to FSL for examination. On 15.06.2012, the Assistant Director of FSL, Bengaluru sent back the explosives and live bullets stating that there was no facility to examine those articles in their laboratory with a direction to send the same to the Bomb Detection and Disposal Squad. He further deposed that on 25.06.2012, he received a report from the Director of FSL as per Ex.P.11. As per the said report, the arm seized from the possession of accused No.1 is an illegally manufactured firearm and it was in working condition.
183. He further deposed that he submitted a letter to the Court seeking permission to defuse the explosive substances seized in this case under P.F.No.59/2012 and obtained the permission of the Court on 23.07.2012. On the same day, he sent a letter to the ADGP of State Intelligence to defuse the explosive substances as per Ex.P.14. On 07.08.2012, BDDS Sub Inspector, 106 S.C.No.297/2013 CW.27 - Sri Narasegowda and his staff CW.28 - Sri H.M. Papanna and CW.29 - Sri Vasudeva Rao collected the explosive substances from him. They defused the said explosive substances at the outskirt of Bengaluru and they collected the remnants from the spot after defusing the explosive substances and submitted a report as per Ex.P.15. On 04.09.2012 the properties seized under P.F.No.73/2012 were sent to FSL through CW.54 - Sri Girish. On 28.09.2012 he received the report from the Director, FSL, Bengaluru as per Ex.P.8.
184. PW.15 - Sri Manjunath V., deposed in his evidence that on 15.06.2012, the Investigating Officer directed him to submit two sealed articles to FSL, Bengaluru. Accordingly, he submitted the said two sealed articles to FSL and brought the acknowledgment for submitting the said articles to FSL and the same was produced before the Investigating Officer.
185. PW.7 - Sri B.C. Ravindra deposed in his evidence that he was a B.Sc., graduate and also studied Diploma in fire arm (ಅಗಗ ಅಸಸಸ) and also undergone training for analysis of chemical by using various equipments and he is a Ballistic expert and he assisted the Police in several bomb blast cases which were taken place in the State of Karnataka. He further deposed that on 04.09.2012 one Sri Girish, Police Constable produced 13 articles in Crime No.106/2012 of Adugodi Police Station before Sri Aravindan, Receptionist and those articles were placed before him for analysis. He further deposed that the seal found on the said articles were intact and tallied with the specimen seal.
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186. He has further deposed that on 23.09.2012 he took up the articles for analysis. When he opened the aforesaid articles, he found normal mud in article No.1, 50 grams ammonium nitrate prills in article No.2, mud collected from the site of destruction of ammonium nitrate in article No.3, 50 grams of gel explosive in article No.4, mud collected from the site of gel explosion in article No.5, mud collected from the spot of destruction of detonators in article No.6, nut, bolt, washer and iron balls in article No.7, a plastic cover wrapped with cello tape in article No.8, one more plastic cover in article No.9, a gunny bag in article No.10, a gunny thread in article No.11, cardboard box in article No.12 and control soil in article No.13.
187. He has further deposed that after scientific analysis of article No.1 to 13, he gave the opinion that the powder in article No.2 is ammonium nitrate prills which can be used as oxidizer in explosive substances, presence of traces of ammonium nitrate are detected in article No.3 and 5, the content in article No.4 is ammonium nitrate based gel/slurry explosive, the metal pieces in article No.6 are the disintegrated part of electrical detonators, presence of traces of Penta Erythrital Tetra Nitrate (PETN) is detected in the soil in article No.6, the metal components in article No.7 can be used as missiles in improvised explosive devices, presence of traces of ammonium nitrate is detected in article No.8, presence of explosive residues were not detected in article No.7 and 9 to 13. In this regard, he gave the opinion as per Ex.P.8 along with analysis report - Ex.P.9. He has further deposed that after analysis of the aforesaid articles, he forwarded article Nos.1, 3, 5, 10 and 11 for further analysis to Physics Division and 108 S.C.No.297/2013 remaining articles were packed and sealed and forwarded to the concerned Police Station.
188. He has further deposed that on 15.06.2012, one Sri Manjunath, P.C., of Adugodi Police Station produced two sealed articles in respect of Crime No.106/2012 before the receptionist Smt. Vani for analysis. He has further deposed that the aforesaid two articles were placed before him for analysis. When he verified the said articles, the seal was intact and it tallied with the specimen seal. He has further deposed that he took up the aforesaid articles for analysis on 19.06.2012. When he opened the seal, he found one six chambered revolver chambered for 0.32 caliber revolver cartridges - MO.1 in article No.1 and four 0.32 caliber revolver cartridges - MO.2. He has further deposed that out of four live bullets, two were successfully test fired, one cartridge was misfired through the revolver. Hence, he gave the report as per Ex.P.11 that the said revolver was a firearm, it was illegally manufactured firearm, it does not bear signs of discharge, it was in working condition, the effective range of revolver is 15 yards and the ammunition are live. He gave the analysis report as per Ex.P.12 and returned the articles with proper pack and seal.
189. PW.8 - Sri C. Narasegowda deposed in his evidence that as per the direction of ADGP, Bomb Squad (State Intelligence), Bengaluru, he brought three sealed packets on 07.08.2012 and destroyed those articles in the presence of CW.37- Sri N.B. Sakri, CW.41 - Sri Kalegowda, CW.52 - Sri Ramachandraiah by using bomb disposal instruments after confirming that the said articles were explosives. He collected the 109 S.C.No.297/2013 sample earth and earth from the site of destruction of explosives in three plastic containers - MO.11 to MO.13 and forwarded the same to the ACP, CCB, Bengaluru. In this regard, he gave report as per Ex.P.15.
190. A perusal of Ex.P19, one Sri Manjunath, PC-8914 was deputed to submit a revolver and live bullets i.e., article No.1 and 2 to FSL, Bengaluru. A perusal of Ex.P.20, the said Sri Manjunath submitted the said articles to FSL on 15.06.2012. A perusal of Ex.P.33, CW.54 - Sri K.C. Gireesh, PC 8842 was deputed to submit the articles seized in Crime No.106/2012 and the acknowledgment issued by the FSL dated 04.09.2012 discloses that 13 articles were received by the FSL, Madiwala, Bengaluru. Ex.P.8 discloses that PW.7 - Sri B.C. Ravindra examined the said 13 articles sent by the Investigating Officer and gave the opinion as deposed by him before this court. The analysis report - Ex.P.9 reveals the mode of analysis of the aforesaid 13 articles. Ex.P.11 discloses that PW.7 - Sri B.C. Ravindra examined the revolver and four live bullets and gave opinion as deposed by him in his evidence. Ex.P.12 discloses the method of examination and reasons for the opinion furnished by PW.7. Ex.P.14 discloses that the Investigating Officer wrote a letter to PW.8 - Sri C. Narasegowda to defuse the explosive substances and collect the remnants from the spot. Accordingly, he defused the explosive substances and submitted a report as per Ex.P.15. Ex.P.15 discloses that PW.8 - Sri C. Narasegowda collected six electronic detonators, 10 kgs ammonium nitrate and six gelatin sticks from the Investigating Officer. After examination of the said articles, it was confirmed that the said articles were explosive substances.
110S.C.No.297/2013 He took the said articles to CAR (HQ) Firing Range, Bengaluru - Mysuru Road and the said explosive substances were defused/destroyed by using bomb disposal instruments. He collected the sample mud, samples of 50 gms ammonium nitrate, mud at the spot of destruction of ammonium nitrate, 50 grams gelatin-san 90, mud at the spot of destruction of gelatin-san 90, mud from the site of destruction of detonators and handed over the same to the Investigating Officer.
191. PW.7, PW.8, PW.15 and PW.21 have thoroughly been cross-examined by the learned counsels for accused Nos.1 to 3. During their cross-examination, nothing has been elicited from the mouth of the aforesaid witnesses to disbelieve their evidence. During the cross-examination of PW.7, the learned counsel for accused Nos.1 and 3 put the suggestion at page 8 in line No.3 as follows :-
"ಮದಲನರರ ಸಜರವ ಗನಒಡನನನ ನಮನನ ಪರಶರಲಸನವಮಗ ಅದನ ಮಸಕಫಯರಕ ಆಗತನಸ ಎಒದನ ಹರರಳನವವದನ ಸರ. ಯಮವವದರರ ಅಗಸ ಅಸಸಕವನನನ ಪರರಕಕಸನವಮಗ ಮಸಕ ಫಯರಕ ಆದರರ ಅದನನನ ಸರಪಡಸನವ ದಮರ ನಮಗರ ತಳದರನತಸದರ ಎಒದನ ಹರರಳನವವದನ ಸರ. ಮದಲನರರ ಗನಒಡನ ಮಸಕ ಫಯರಕ ಆದಮಗ ನಮನನ ಮನ.ಮಮ.1 ನನನ ಸರಪಡಸ ತನಖಮಧಕಮರಯ ಕರರರರಕರಯ ಮರರರಗರ ಮತರಸರಡನ ಗನಒಡನನನ ಹಮರಸ ವರದಯನನನ ತಯಮರನ ಮಮಡಕರರಟಕರನತರಸರನರ ಎಒದನ ಹರರಳನವವದನ ಸರಯಲಲ."
192. A perusal of the aforesaid suggestion, it is manifest that accused Nos.1 to 3 admitted unequivocally that PW.7 examined MO.1 - Revolver and MO.2 - Live bullets and nothing has been elicited to disbelieve the evidence of the aforesaid witnesses.
193. A careful analysis of the evidence of the aforesaid witnesses, the Investigating Officer - PW.21 sent the seized articles such as revolver, four live bullets, gelatin sticks, 111 S.C.No.297/2013 ammonium nitrate, electronic detonators to the experts for examination. PW.7 examined the revolver and live bullets as well as the remnants collected at the site of destruction of explosive substances as well as other articles seized from the spot at the instance of accused No.1. PW.8 defused / destroyed gelatin sticks, electric detonators, ammonium nitrate and opined that those articles are explosive substances. PW.7 opined that the revolver - MO.1 is a fire arm and it is an illegally manufactured fire arm and it was in working condition. Therefore, the prosecution has proved with cogent and convincing evidence that the revolver seized from the possession of accused No.1 is a firearm and it was in working condition, bullets seized from the possession of accused No.1 are live bullets and the articles i.e., electrical detonators, gelatin sticks and ammonium nitrate seized at the instance of accused No.1 at Jnanabharathi Bengaluru University Campus are explosive substances beyond reasonable doubt.
194. It is the case of the prosecution that the book seized from the possession of accused No.2 was sent to the Director, Translation Department for translation under a letter dated 26.09.2012. The Director of the Translation Department wrote a letter dated 27.09.2012 to the Investigating Officer that no translator was available with their office to translate Urdu book into Kannada or English language. Therefore, the Investigating Officer got translated the said Urdu book seized from the possession of accused No.2 from PW.13 - Sri Tanveer S.R., and there are incriminating materials in respect of the allegations made against the accused persons. In order to prove the said facts, the 112 S.C.No.297/2013 prosecution has placed reliance on the oral evidence of PW.21 and PW.13 and documentary evidence at Ex.P.35.
195. PW.21 - Sri Chalapathi deposed in his evidence that on 26.09.2012 he wrote a letter to the Director, Translation Department, Ground Floor, Podium Block, V.V. Tower to translate MO.7 - Urdu Book seized from the possession of accused No.2 to translate the contents of the said Urdu Book into Kannada or English language. On 27.09.2012, the Director sent back MO.7 to him on the ground that no translator was available with their department to translate the said Urdu book into Kannada or English language. Therefore, he instructed PW.13 - Sri Tanveer S.R. who is having knowledge about Urdu language to translate MO.7 into English language. PW.13 - Sri Tanveer S.R. translated MO.7 into English language as per Ex.P.35 and handed it over to him. In this regard, he collected the photo copies of the marks card to show that the said PW.13 - Sri Tanveer S.R., studied the Urdu language in the first and second semesters of his BBM degree.
196. PW.13 - Sri Tanveer S.R., deposed in his evidence that his mother tongue is Urdu language. He knows reading and writing Urdu language. He studied up to 7th standard in Urdu medium and studied the Urdu language as the first language in BBM degree at Kuvempu University, ARG College, Davanagere. During 2012, the Investigating Officer orally requested him to translate MO.7 - Book in Urdu language. Accordingly, he translated the first page/face page, index and some 8 to 10 pages of MO.7. He further deposed that at page No.100 of MO.7, there is 113 S.C.No.297/2013 a topic "Excellence of Jihad against India" and he translated the said portion. He handed over the translated version i.e., Ex.P.35 to the Investigating Officer and he identified the same in the course of recording of his evidence.
197. A perusal of evidence of PW.13 - Sri Tanveer S.R., he translated face page of MO.7, index and certain relevant portions of MO.7. As per the said document, there is a topic on page No.100 of MO.7 "Excellence of Jihad against India." PW.21 and PW.13 were subjected to cross-examination by the learned counsels for accused Nos.1 to 3. During the cross-examination of PW.21, nothing has been elicited to disbelieve his evidence except there are other institutions to get MO.7 translated and there are nearby Urdu Schools and he could have got it translated through the said institutions or Urdu Schools. Even during the cross-examination of PW.13 nothing has been elicited to disbelieve or discredit his testimony except there were no underline marks or folding at any page of MO.7.
198. It is pertinent to note that the incriminating materials found in the evidence of PW.21 and PW.13 were put to accused No.2 during recording of his statement. He simply denied the seizure of MO.7 from his possession, but he nowhere stated that the translated version i.e., Ex.P.35 is not correct or proper translation and wrongly translated the contents of MO.7 in Ex.P.35. Even during the cross-examination of PW.21 and PW.13, the learned counsels for accused Nos.1 to 3 have not put suggestions to them that Ex.P.35 does not contain the true translation of MO.7 and something new was introduced in the 114 S.C.No.297/2013 translated version. In the absence of any such evidence, this Court cannot disbelieve Ex.P.35 on the ground that no mahajar was drawn at the time of handing over MO.7 to PW.13 for translation, the Investigating Officer failed to get the translation of MO.7 through the nearby Urdu Schools or any institutions and PW.13 is the sub-ordinate officer to PW.21. Moreover, PW.1 has made efforts to get the MO.7 translated by sending the same to the Director of the translation department. Therefore, the prosecution has proved with cogent and convincing evidence that PW.21 handed over MO.7 to PW.13 - Sri Tanveer S.R., to translate the contents of MO.7 and PW.13 translated the contents of MO.7 as per Ex.P.35.
199. Keeping in mind the aforesaid proved facts in mind, this court proceeds to examine whether the prosecution has proved the allegations made against the accused persons with the aforesaid proved facts.
200. It is the case of the prosecution that accused Nos.1 to 3 connived with each other to blast vital installations and to commit the murder of the prominent Hindu Activists in Bengaluru city and they collected arm, ammunition and explosive substances for the said purpose and also conspired to incite communal clashes between Hindus and Muslims and thereby committed the offence punishable under Sections 120-B of IPC. Before proceeding directly to appreciate the evidence adduced by the prosecution, it is proper to take note of the meaning of criminal conspiracy. Section 120-A of IPC deals with criminal conspiracy which reads as follows :-
115S.C.No.297/2013 "120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done:
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
201. A plain reading of the said section, in order to attract criminal conspiracy,
a) there should be two or more persons,
b) there should be an agreement between those persons,
c) the said agreement is to do or cause to be done an illegal act, or
d) the said agreement is to do a legal act by illegal means.
202. The prosecution has to prove those ingredients before the court beyond reasonable doubt with cogent and convincing evidence. If the prosecution is able prove the said ingredients of the criminal conspiracy, then the accused are liable to be punished under Section 120-B of IPC.
203. It is well settled legal position of law that in the case of conspiracy there cannot be any direct evidence. The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. In this regard, the learned Special 116 S.C.No.297/2013 Public Prosecutor has placed reliance on the decision of the Hon'ble Apex Court in Mohd. Khalid Vs. State of West Bengal, Appeal (Crl.) 1114/2001, (2002) 7 SCC 334. In this decision, the Hon'ble Apex Court has laid down at paras 17, 18 and 23 as follows;
"17. It would be appropriate to deal with the question of conspiracy. Section 120B of IPC is the provision which provides for punishment for criminal conspiracy. Definition of 'criminal conspiracy' given in Section 120A reads as follows:
"120A-When two or more persons agree to do, or cause to be done,-
(1) all illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.' The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence Vol. II Sec. 23, p. 559). For an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement 117 S.C.No.297/2013 to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
18. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal, Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
* * * *
23. As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120 B read with the proviso to sub-section (2) of Section 120 A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120 B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, to commit the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120 B [See: S.C. Bahri v. State of Bihar, AIR (1994) SC 2420."
204. Keeping in mind the aforesaid statutory provision as well as the principle laid down by the Hon'ble Apex Court, this 118 S.C.No.297/2013 court proceeds to examine whether the prosecution has proved the ingredients of the offence of conspiracy.
205. There should be two or more persons to attract the offence under section 120-B of IPC. In this case, there are three accused persons and the first ingredient of the offence has been satisfied by the prosecution. As discussed supra, there is evidence to show that accused No.1 to 3 used to meet each other in central prison, Bengaluru. There is evidence to show that accused No.2 and 3 contacted accused No.1 from Central Prison, Kalaburagi through mobile phones. There is evidence to show that accused No.2 and 3 were in touch with their foreign associates over phone. There is evidence to show that accused No.2 and 3 made accused No.1 to contact their foreign associates over phone.
206. Now the question before the court is whether the offence of conspiracy can be proved with the help of phone contacts between accused No.1 to 3 and it is a circumstance to believe the case of prosecution to prove the offence of conspiracy. In this regard, this court has placed reliance on the decision of the Hon'ble Apex Court in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1. In this decision, the Hon'ble Apex Court has laid down at para 226 as follows;
"226. The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harboring. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence. The details of the calls made by the various accused to one another are available in Ex. PW-66/B, PW-66/D and PW-66/C."119
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207. This court has also placed reliance on the decision of the Hon'ble Apex Court in Gajraj Vs. State (NCT of Delhi), (2011) 10 SCC 675. In this decision, the Hon'ble Apex Court has laid down at paras 16 to 19 as follows;
"16. The evidence produced by the prosecution is based on one irrefutable fact, namely, every mobile handset has an exclusive IEMI number. No two mobile handsets have the same IEMI number. And every time a mobile handset is used for making a call, besides recording the number of the caller as well as the person called, the IEMI numbers of the handsets used are also recorded by the service provider. The aforesaid factual position has to be kept in mind while examining the prosecution evidence.
17. The first step in the process of investigation was the receipt of information from Minakshi (the wife of deceased Harish Kumar), that the deceased was using mobile phone (sim) no.9871879824. Evidence on record indicates, that the aforesaid sim number became dead on 23.7.2005, i.e., the date on which deceased Harish Kumar came to be murdered. In the process of investigation it then emerged, that the mobile handset bearing IEMI No.35136304044030 was used with mobile phone (sim) no. 9818480558. This happened soon after the murder of Harish Kumar, on 23.7.2005 itself. The same sim was used to make calls from the same handset upto 2.8.2005.
18. Through the statement of R.K. Singh PW22, Nodal Officer, Bharati Airtel Limited, it came to be established, that mobile phone (sim) no.9818480558 was registered in the name of accused-
appellant Gajraj Singh. It is from the use of the mobile handset bearing IEMI no.35136304044030, that the police came to trace the accused-appellant Gajraj Singh. It is only this aspect of the matter which is relevant for the purpose of present controversy. The use of Mobile handset bearing IEMI no.35136304044030 on which the accused- appellant made calls from his own registered mobile phone (sim) no.9818480558, immediately after the occurrence of the murder of deceased Harish Kumar, was a legitimate basis for the identification of the accused- appellant. The accused-appellant was arrested on 6.8.2005. The nexus of the accused-appellant with the deceased at the time of occurrence stands fully substantiated from the aforesaid sim/IEMI details.
19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned counsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the course of investigation, was legitimate and 120 S.C.No.297/2013 unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies. In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid scientific evidence. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the accused-appellant."
208. A perusal of the law laid down in the aforesaid decisions, the evidence of phone calls is a very relevant and admissible piece of evidence to prove the circumstances. Every mobile handset has an exclusive IMEI number and no two mobile handsets have the same IMEI number. In this case also, this court has discussed in detail regarding the calls exchanged between accused No.1 to 3 with IMEI numbers and has come to the conclusion that accused No.1 to 3 were in contact with each other and also contacted their foreign associates. As per the ratio laid down in the aforesaid decisions, this court can rely upon the phone call to prove the circumstances of conspiracy.
209. Further, there is evidence to show that accused No.2 and 3 provided money to accused No.1 through their foreign associates. There is evidence to show that accused No.2 and 3 provided revolver, live bullets and explosive substances to accused No.1 through their foreign associates. There is evidence to show that accused No.2 had a book in his possession and the said book has contained anti-national material against India.
210. As per the law laid down in the aforesaid decision, in the case of conspiracy there cannot be any direct evidence and the agreement between the parties may be proved by necessary implication. It is the allegations of the prosecution that the accused 121 S.C.No.297/2013 persons conspired to blast vital installations and commit the murder of Hindu Activists in Bengaluru city and they collected revolver, live bullets and explosive substances to achieve the said object. In this case, the aforesaid circumstances are considered together, accused No.1 to 3 collected revolver, live bullets and explosive substances with an intention to blast vital installations and commit the murder of Hindu Activists in Bengaluru city. With this evidence, the prosecution has satisfied the other ingredients of the offence conspiracy and proved beyond reasonable doubt that the accused persons have committed the offence punishable under section 120-B of IPC. Accordingly, this court has answered point No.1 in the affirmative.
211. Point No.2 :- It is the case of the prosecution that accused Nos.1 to 3 attempted to wage war against India by blasting vital installations in Bengaluru and to kill prominent Hindu activists and thereby waged war against the Government of India. Before analysing the evidence adduced by the prosecution with reference to Section 121 of IPC in order to find out whether the charge of attempted to wage war against India, it is proper to take note of the meaning of wage war or attempted to wage war against the government of India. Section 121 reads as follows :-
"121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.
Illustration ***A joins an insurrection against the Government of India. A has committed the offence defined in this section."122
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212. A bare reading of the said section, the prosecution has to prove that accused Nos.1 to 3 have waged war or attempted to wage war or abetted the waging of war against the Government of India to convict accused No.1 to 3 under section 121 of IPC. In this regard, this court has placed reliance on the decision of the Hon'ble Apex Court in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600. In this decision, the Hon'ble Apex Court has laid down at para 273 to 284 as follows;
"273. The expression 'Government of India' was substituted for the expression 'Queen' by the Adaptation of Laws Order of 1950. Section 121 now reads "121. Whoever wages war against the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with death or imprisonment for life and shall also be liable to fine".
274. The conspiracy to commit offences punishable under Section 121 attracts punishment under Section 121A and the maximum sentence could be imprisonment for life. The other limb of Section 121A is the conspiracy to overawe by means of criminal force or the show of criminal force, the Central Government or any State Government. The explanation to Section 121-A clarifies that it is not necessary that any act or illegal omission should take place pursuant to the conspiracy, in order to constitute the said offence.
275. War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war imbedded in Section 121 is not to be understood in international law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that 'war' contemplated by Section 121 is not conventional warfare between two nations. Organizing or joining an insurrection against the Government of India is also a form of war. 'Insurrection' as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. "Rebellion, revolution and civil war are progressive stages in the development of civil unrest the most rudimentary form of which is 'insurrection' vide Pan American World Air Inc. Vs. Actna Cas & Sur Co. [505, F.R. 2d, 989 at P. 1017].
123S.C.No.297/2013 An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression 'war' and it is seen from the old English authorities referred to supra that it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or Government.
276. It has been aptly said by Sir J.F. Stephen "unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which run into each other and not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is, in each of the cases mentioned, disturbed either by actual force or at least by the show and threat of it".
277. To this list has to be added 'terrorist acts' which are so conspicuous now-a-days. Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. According to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
278. It is seen that the first limb of Section 3(1) of POTA -
"with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever"
and the act of waging war have overlapping features. However, the degree of animus or intent and the magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section, 121A.
279. It needs to be noticed that even in international law sphere, there is no standard definition of war. Prof. L. Oppenheim in his well-known treatise on International Law has given a definition marked by brevity and choice of words. The learned author said:
"war is a contention between two or more States through their armed forces, for the purpose of overpowering each other and 124 S.C.No.297/2013 imposing such conditions of peace as the victor pleases". Yoram Dinsteinan expert in international law field analyzed the said definition in the following words:
"There are four major constituent elements in Oppenheim's view of War: (i) there has to be a contention between at least two States (ii) the use of the armed forces of those States is required,
(iii) the purpose must be overpowering the enemy ( as well as the imposition of peace on the victor's terms); and it may be implied, particularly from the words 'each other' and (iv) both parties are expected to have symmetrical, although diametrically opposed, goals."
The learned author commented that Oppenheim was entirely right in excluding civil wars from his definition. Mr. Dinstein attempted the definition of 'war' in the following terms:
"War is a hostile interaction between two or more States, either in a technical or in a material sense. War in the technical sense is a formal status produced by a declaration of war. War in the material sense is generated by actual use of armed force, which must be comprehensive on the part of at least one party to the conflict."
280. In international law, we have the allied concepts of undeclared war, limited war, war-like situation - the nuances of which it is not necessary to unravel.
281. There is no doubt that the offence of waging war was inserted in the Indian Penal Code to accord with the concept of levying war in the English Statutes of treason, the first of which dates back to 1351 A.D. It has been said so in almost all the Indian High Courts' decisions of the pre-independence days starting with AIR 1931 Rangoon 235. In Nazir Khan's case [2003 (8) SCC 461] this Court said so in specific terms in paragraph 35 and extensively quoted from the passages in old English cases. Sir Michael Foster's discourses on treason and the passages from the decisions of the High courts referred to therein are also found in Ratanlal's Law of Crimes. We should, therefore, understand the expression "wages war" occurring in Section 121 broadly in the same sense in which it was understood in England while dealing with the corresponding expression in the Treason Statute. However, we have to view the expression with the eyes of the people of free India and we must modulate and restrict the scope of observations too broadly made in the vintage decisions so as to be in keeping with the democratic spirit and the contemporary conditions associated with the working of our democracy. The oft-repeated phrase 'to attain the object of general public nature' coined by Mansfield, LCJ and reiterated in various English and Indian decisions should not be unduly elongated in the present day context.
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282. On the analysis of the various passages found in the cases and commentaries referred to above, what are the high-lights we come across? The most important is the intention or purpose behind the defiance or rising against the Government. As said by Foster, "The true criterion is quo animo did the parties assemble"? In other words the intention and purpose of the war-like operations directed against the Governmental machinery is an important criterion. If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in contra-distinction to a private and a particular purpose, that is an important indicia of waging war. Of course, the purpose must be intended to be achieved by use of force and arms and by defiance of Government troops or armed personnel deployed to maintain public tranquility. Though the modus operandi of preparing for the offensive against the Government may be quite akin to the preparation in a regular war, it is often said that the number of force, the manner in which they are arrayed, armed or equipped is immaterial. Even a limited number of persons who carry powerful explosives and missiles without regard to their own safety can cause more devastating damage than a large group of persons armed with ordinary weapons or fire arms. Then, the other settled proposition is that there need not be the pomp and pageantry usually associated with war such as the offenders forming themselves in battle-line and arraying in a war like manner. Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to attain a commanding position by which terms could be dictated to the Government might very well be an act of waging war.
283. While these are the acceptable criteria of waging war, we must dissociate ourselves from the old English and Indian authorities to the extent that they lay down a too general test of attainment of an object of general public nature or a political object. We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. The Court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political objectives. The moment it is found that the object sought to be attained is of general public nature or has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression 'waging war' should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression 'waging war' irrespective of how it was viewed in the long long past. An organized movement attended with violence and attacks against the public officials and armed forces while agitating 126 S.C.No.297/2013 for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern day perspectives and standards. Another aspect on which a clarification is called for is in regard to the observation made in the old decisions that "neither the number engaged nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R Vs. Hardie in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan Vs. Emperor [AIR 1946 Nagpur 173 at page 186]. But, in our view, these are not irrelevant factors. They will certainly help the Court in forming an idea whether the intention and design to wage war against the established Government exists or the offence falls short of it. For instance, the fire power or the devastating potential of the arms and explosives that may be carried by a group of persons may be large or small, as in the present case, and the scale of violence that follows may at times become useful indicators of the nature and dimension of the action resorted to. These, coupled with the other factors, may give rise to an inference of waging war.
284. The single most important factor which impels us to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battle-front selected was the Parliament House Complex. The target chosen was the Parliament - a symbol of sovereignty of the Indian republic. Comprised of peoples' representatives, this supreme law-making body steers the destinies of vast multitude of Indian people. It is a constitutional repository of sovereign power that collectively belongs to the people of India. The executive Government through the Council of Ministers is accountable to Parliament. Parliamentary democracy is a basic and inalienable feature of the Constitution. Entering the Parliament House with sophisticated arms and powerful explosives with a view to lay a siege of that building at a time when members of Parliament, members of Council of Ministers, high officials and dignitaries of the Government of India gathered to transact Parliamentary business, with the obvious idea of imperilling their safety and destabilizing the functioning of Government and in that process, venturing to engage the security forces guarding the Parliament in armed combat, amounts by all reasonable perceptions of law and common sense, to waging war against the Government. The whole of this well planned operation is to strike directly at the sovereign authority and integrity of our Republic of which the Government of India is an integral component. The attempted attack on the Parliament is an undoubted invasion of the sovereign attribute of the State including the Government of India which is its alter ego. The attack of this nature cannot be viewed on the same footing as a terrorist attack on some public office 127 S.C.No.297/2013 building or an incident resulting in the breach of public tranquility. The deceased terrorists were roused and impelled to action by a strong anti-Indian feeling as the writings on the fake Home Ministry sticker found on the car (Ext. PW 1/8) reveals. The huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorists who were to indulge in 'Fidayeen' operations with a definite purpose in view, is a clear indicator of the grave danger in store for the inmates of the House. The planned operations if executed, would have spelt disaster to the whole nation. A war-like situation lingering for days or weeks would have prevailed. Such offensive acts of unimaginable description and devastation would have posed a challenge to the Government and the democratic institutions for the protection of which the Government of the day stands. To underestimate it as a mere desperate act of a small group of persons who were sure to meet death, is to ignore the obvious realities and to stultify the wider connotation of the expression of 'war' chosen by the drafters of IPC. The target, the obvious objective which has political and public dimensions and the modus operandi adopted by the hard- core 'Fidayeens' are all demonstrative of the intention of launching a war against the Government of India. We need not assess the chances of success of such an operation to judge the nature of criminality. We are not impressed by the argument that the five slain terrorists ought not to be 'exalted' to the status of warriors participating in a war. Nor do we endorse the argument of the learned senior counsel Mr. Sushil Kumar that in order to give rise to the offence of waging war, the avowed purpose and design of the offence should be to substitute another authority for the Government of India. According to learned counsel, the deprivation of sovereignty should be the pervading aim of the accused in order to bring the offence under Section 121 and that is lacking in the present case. We find no force in this contention. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the nation and its Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not in our view detract from the offence of waging war. There is no warrant for such truncated interpretation."
213. Keeping in mind the aforesaid statutory provision and the interpretation made by the Hon'ble Apex Court, this court proceeds to examine whether the prosecution has proved the ingredients of the offence under section 121 of IPC.
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214. The prosecution has adduced evidence to show that accused No.1 to 3 collected arm, ammunition and explosive substances with an intention to cause blast the vital installations and commit the murder of the prominent Hindu leaders and thereby wage religious war against India. None of the aforesaid facts attract any one of the ingredients of the offence under section 121 of IPC. The said facts attract only the conspiracy to commit the offence. The accused persons have not committed any overt acts to wage war, or attempted to wage war or abetted waging of war against India. Therefore, the prosecution has failed to prove any one of the ingredients of the offence under this section. Accordingly, this court has answered point No.2 in the negative.
215. Point No.3 :- It is the case of the prosecution that accused Nos.1 to 3 conspired to wage war against the Government of India by way of blasting vital installations and killing prominent Hindu Activists in Bengaluru city and conspired to overawe, by means of criminal force of show of criminal force, the central or state government and thereby committed the offence punishable under section 121-A of IPC. It is proper to take note of the ingredients of the offence to be proved by the prosecution before proceeding to take the facts for discussion. Hence, Section 121-A of IPC is extracted here under :-
"121A. Conspiracy to commit offences punishable by section
121.--
Whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with 129 S.C.No.297/2013 imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. Explanation.--To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof."
216. In order to convict the accused persons under Section 121-A of the IPC, the prosecution has to prove that accused Nos.1 to 3 conspired to wage war or conspired to attempt wage war or abetted the waging of war against the Government of India or conspired to overawe, by means of criminal force or the show of criminal force, the central or state government.
217. While discussing on point No.1, this court has come to the conclusion that the prosecution has proved that accused No.1 to 3 conspired with each other to commit the offence. Now, this court has to verify the the accused persons have conspired to commit any of the offence punishable under section 121 of IPC or conspired to overawe, by means of criminal force or the show of criminal force, central or state government.
218. As discussed supra, the accused persons were in touch with each other and also in touch with their foreign associates. They secured revolver, live bullets and explosive substances with an intention to blast the vital installations in Bengaluru city and to commit the murder of the prominent Hindu Activists. A book was seized from the possession of accused No.2 and it contains anti-national recitals. During examination of accused persons under section 313 of Cr.P.C., they have not explained why they secured the arm, ammunition and explosive substances. Therefore, the court has to draw an inference as to what exactly the intention of the accused persons behind their 130 S.C.No.297/2013 meeting over phone and in securing those articles. In this case, no damage has been done, no activities have been taken place in consonance with their conspiracy and there is no heavy magnitude of any damage or cause any damage or loss to the country. However, the prime intention of the accused persons is to cause heavy damage to the people and the country. This court is able to understand this intention and mindset of the accused persons coupled with they met with each other over phone and conspired to execute such intention. It is clear from the meeting of accused persons over phone and the consequential acquisition of arms and explosives to effectuate the purpose and intent of the said conspiracy. The said facts would thus come well within the later part of the conspiracy dealt with in section 121A of IPC. As the explanation to section 121A of IPC discloses, for an offence of conspiracy, it would not be necessary that any act or illegal omission must take place in pursuance thereof. Thus, even though no untoward incident had actually happened as a result of the conspiracy, the matter would still come within the four corners of section 121A of IPC. Hence, the prosecution has proved one of the ingredients of the offence under section 121A of IPC beyond reasonable doubt with cogent and convincing evidence.
219. A perusal of the records, the prosecution has not obtained sanction from the central or state government to prosecute the accused persons under section 121A of IPC and the charge sheet has not been filed for the said offence. This court has framed the charge under section 121A of IPC when the case was posted for judgment on the ground that there are materials to frame charge under section 121A of IPC. Now, the question before 131 S.C.No.297/2013 the court is that this court can convict the accused persons for the offence under section 121A of IPC without the sanction from the Central Government or State Government. In this regard, it is apposite to refer to section 196 of CR.P.C. which reads as follows;
"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.
(1A) No Court shall take cognizance of-
(a) any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ), or
(b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.
(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal code (45 of 1860 ), other than a criminal conspiracy to commit an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction under sub- section (1) or sub- section (1A) and the District Magistrate may, before according sanction under sub-
section (1A) and the State Government or the District Magistrate may, before giving consent under sub- section (2), order a preliminary investigation by a police officer not being below the 1 Subs. Act. 45 of 978, s. 16, for" a cognizable offence" (w. e. f. 18- 12- 1978 ) 2 subs. and ins by act 63 of 1980 s. 3 (w. e. f. 23- 9- 1980 ) rank of Inspector, in which case such police officer shall have the powers referred to in sub- section (3) of section 155.
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220. A perusal of sub-section (1) of section 196, no court shall take cognizance for any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or Section 295- A or sub section (1) of section 505 of the IPC or a criminal conspiracy to commit such offence, or any such abetment, as is described in section 108A of the IPC, except with the previous sanction of the Central Government or of the State Government. In the present case in hand, section 121A of the IPC comes under chapter VI of the IPC. As discussed supra, the prosecution has not obtained sanction form the central or state government to prosecute accused persons under section 121A of IPC. Therefore, this court cannot convict the accused persons under section 121A of IPC. Accordingly, this court has answered point No.3 in the negative.
221. Point No.4 :- It is the case of the prosecution that accused Nos.1 to 3 collected arm, ammunition and explosive substances and prepared to wage war against the Government of India and thereby committed the offence punishable under section 122 of IPC. Before analysing the evidence adduced by the prosecution with reference to Section 122 of IPC, in order to find out whether the charge of collecting arms etc., with the intention of waging war against India it is proper to take note of the ingredients to be proved by the prosecution. Section 122 reads as follows :-
"122. Collecting arms, etc., with intention of waging war against the Government of India.--Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine"133
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222. A plain reading of the aforesaid section, the prosecution has to prove that accused No.1 to 3 collected arms or ammunition or otherwise prepared to wage war and they did so with the intention of either waging war or being prepared to waging war against the Government of India beyond reasonable doubt.
223. This court while discussing on point No.3 has come to the conclusion that the accused persons were in touch with each other and also in touch with their foreign associates. They secured revolver, live bullets and explosive substances with an intention to blast the vital installations in Bengaluru city and to commit the murder of the prominent Hindu Activists. A book was seized from the possession of accused No.2 and it contains anti-national recitals. During examination of accused persons under section 313 of Cr.P.C., they have not explained why they secured the arm, ammunition and explosive substances. Therefore, the court has to draw an inference as to what exactly the intention of the accused persons behind their meeting over phone and in securing those articles. The prime intention of the accused persons in securing the revolver, live bullets and explosive substances is to cause heavy damage to the people and the country. This court is able to understand this intention and mindset of the accused persons coupled with they met with each other over phone and conspired to execute such intention. It is clear from the meeting of accused persons over phone and the consequential acquisition of arms and explosives to effectuate the purpose and intent of the said conspiracy and the accused prepared to wage war against India. The said facts would thus come well within the four corners of 134 S.C.No.297/2013 section 122 of IPC. Hence, the prosecution has proved the ingredients of the offence under section 122 of IPC beyond reasonable doubt with cogent and convincing evidence. Accordingly, this Court has answered Point No.4 in the affirmative.
224. Point No.6 and 7:- It is the allegation of the prosecution that accused Nos.1 to 3 with an intention to incite the communal clashes between Hindus and Muslims, tried to create criminal hatred between Hindus and Muslims and made or published and imputations prejudicial to national-integration and thereby committed the offence punishable under Sections 153-A and 153-B of the IPC. In order to appreciate the facts in a better manner, it is apposite to extract Sections 153-A and 153-B of the IPC, which read as follows :-
"153-A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--
(1) Whoever--
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or
(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or 135 S.C.No.297/2013 knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc.- Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
153-B. Imputations, assertions prejudicial to national- integration.--
(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,--
(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine."
136S.C.No.297/2013
225. A plain reading of the Section 153-A of the IPC, the prosecution has to prove before this court that the accused promoted or attempted to promote disharmony, or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or that the accused have done any act which is prejudicial to the maintenance of harmony between such groups or castes or communities which disturbs or is likely to disturb the public tranquility, or they promoted or attempted to promote disharmony, or feeling of enmity, hatred or ill-will by words or signs or by visible representations or otherwise or had acted prejudicially to the maintenance of the harmony which disturbs or likely to disturb public tranquility or in cases under sub-section (2) prove further that the offence was committed in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies with cogent and convincing evidence to convict the accused under section 153A of IPC.
226. A plain reading of Section 153-B of the IPC, the prosecution has to prove that the accused persons by words either spoken or written or by signs or by visible representations or otherwise, made or published any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or 137 S.C.No.297/2013 community, be denied or deprived of their rights as citizens of India, or makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, or the accused persons committed an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies with cogent and convincing evidence. In this background, this court proceeds to examine the evidence adduced by the prosecution to prove the ingredients of the said offence.
227. As could be seen from the prosecution evidence, the prosecution is able to prove that the accused persons collected arms, ammunitions and explosive substances in furtherance of their criminal conspiracy to blast the vital installations and to commit the murder of prominent Hindu Activists in Bengaluru city. There is absolutely no evidence to prove that the accused persons committed any acts which amount to prejudicial to national integrity or attempted to promote enmity between different caste, creed, religions, races, place of birth, residence, etc., Even the learned Special Public Prosecutor has not pointed out which evidence placed before this court attracts the ingredients of the offences under section 153A and 153B of IPC. Therefore, the prosecution has utterly failed to satisfy any one of the ingredients of the aforesaid offence by adducing any cogent and convincing 138 S.C.No.297/2013 evidence. In the absence of any evidence to prove anyone of the ingredients of the offences under section 153A and 153B of the IPC, this court cannot hold the accused persons guilty of the said offences. Accordingly, this Court has answered point No.6 and 7 in the negative.
228. Point No.8 and 9 :- The allegations of the prosecution that accused Nos.1 to 3 collected firearm and ammunition without licence with an intention to destroy the vital installations in India and thereby committed the offence punishable under Sections 3, 25 and 26 of the Arms Act, 1959. In this regard, it is apposite to refer to Sections 25 and 26 of Arms Act, 1959 for a better appreciation of the facts. Sections 25 and 26 of Arms Act, 1959 read as follows :-
"25. Punishment for certain offences --
(1) Whoever -
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an immitation firearm into a firearm in contravention of section 6; or * * * * *
(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, 139 S.C.No.297/2013 any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(1AAA) Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or 140 S.C.No.297/2013 account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.
(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, "disturbed area" means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.
(2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine or with both.
(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(iii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six 141 S.C.No.297/2013 months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
26. Secret contraventions.--
(1) Whoever does any act in contravention of any of the provisions of section 3, 4, 10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.
(2) Whoever does any act in contravention of any of the provisions of section 5, 6, 7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to ten years and also with fine.
(3) Whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine."
229. A plain reading of Section 3 of the Arms Act, it is not a penal section and the term of imprisonment is not prescribed under the said section. Any contravention under this section is made punishable under section 25 and 26 of the Act. Therefore, this court has to go through section 25 and 26 which are penal sections to punish the accused persons.
230. A plain reading of Section 25 of Arms Act, the prosecution has to prove that accused Nos.1 to 3 were in possession of any arms or ammunition in contravention of 142 S.C.No.297/2013 Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 21 and 24A of Arms Act with cogent and convincing evidence.
231. A plain reading of Section 26 of the Arms act, the prosecution has to prove that accused Nos.1 to 3 committed any act in contravention of any provisions of Sections 3 to 7, 10 to 12 and 22 of Arms Act in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance.
232. It is the allegations of the prosecution that the accused persons had in their possession of the revolver and four live bullets with them. The said allegations only attract the offence under section 25(1-A), 25(1-B) and 26 of the Arms Act. Section 25(1A) is attracted when the accused persons had in possession of any prohibited firearm or ammunition in contravention of section 7 of the Act. Therefore, it is proper to take note of section 7 of the Act which reads as follows;
"7. Prohibition of acquisition or possession, or of manufacture or sale of prohibited arms or prohibited ammunition.―No person shall―
(a) acquire, have in his possession or carry; or
(b) use, manufacture, sell, transfer, convert, repair, test or prove; or
(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof;
any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.
233. Section 25(1-B) is attracted when the accused persons had in possession of any prohibited firearm or ammunition in contravention of section 3 of the Act. Therefore, it is proper to take note of section 3 of the Act which reads as follows;
143S.C.No.297/2013 "3. Licence for acquisition and possession of firearms and ammunition.--
(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. (2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement* of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement*, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub- section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section."
234. In this regard, this Court has perused the evidence placed before this Court by the prosecution. As discussed supra, 0.32 caliber revolver and four live bullets were seized from the possession of accused No.1 and he concealed them in his waist with an intention that the same should not be known to any public servant. PW.2 - Sri K.C. Ashokan came to know that accused No.1 had in possession of revolver and live bullets when he searched accused No.1 in person. PW.7 - Sri Ravindran has given opinion that the said 0.32 caliber revolver is a firearm and bullets 144 S.C.No.297/2013 are live bullets. In this regard, accused No.1 has not produced any licence before this Court to show that he has licence to keep firearm and ammunition. Therefore, the prosecution has proved that accused No.1 had in his possession prohibited firearm and ammunition without valid license in contravention of section 3 and
7. The prosecution has not placed any materials to show that accused Nos.2 and 3 were in possession of any firearm or ammunition in contravention of Section 3 and 7 of the Arms Act. The prosecution has not adduced any evidence that accused No.2 and 3 acquired or had in their possession or carried any prohibited arm or ammunition in contravention of section 3 and 7 of the Act. The investigation officer has not seized any arm or ammunition either from the possession of accused No.2 and 3 or at the instance of accused No.2 and 3. Therefore, the prosecution has failed to prove that accused Nos.2 and 3 have committed any offence under Sections 25 and 26 of the Arms Act. The prosecution has proved with cogent and convincing evidence that accused No.1 has committed the offences punishable under Sections 25 and 26 of the Arms Act. Accordingly, this Court answer the point No.8 and 9 partly in the affirmative.
235. Point No.10 to 12 :- The allegations of the prosecution are that accused Nos.1 to 3 illegally collected explosive materials to blast vital installations and commit the murder of the prominent Hindu Activists and thereby committed the offence punishable under Sections 4 to 6 of Explosive Substances Act, 1908. It is apposite to extract the said provisions for better appreciation of the evidence before taking the evidence of prosecution for 145 S.C.No.297/2013 discussion. Section 4 of the Explosive Substances Act, 1908 read as follows :-
"4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.-- Any person who unlawfully and maliciously--
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,--
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
236. A plain reading of Section 4 of Explosive Substances Act, the prosecution has to prove that accused Nos.1 to 3 unlawfully and maliciously committed any act with intent to cause an explosion or conspired to cause an explosion of a nature likely to endanger life or to cause serious injury to property by an explosive substance or special category explosive substance, or made or had in their possession or under their control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to 146 S.C.No.297/2013 endanger life or cause serious injury to property in India with cogent and convincing evidence.
237. In this case, as discussed supra, the prosecution has adduced evidence to show that the accused persons conspired to blast vital installations and to commit the murder of the prominent Hindu Activists in the city of Bengaluru. In order to achieve the object of the said criminal conspiracy, the accused persons unlawfully collected the explosive substances such as detonators, gelatin sticks, ammonium nitrate and nut, bolt and washers. The intention of the accused persons can be inferred from their acts that they conspired to cause an explosion of a nature likely to endanger life and cause serious injury to property. The prosecution has proved the said ingredient with cogent and convincing evidence.
238. Section 5 of the Explosive Substances Act, 1908 reads as follows :-
"5. Punishment for making or possessing explosives under suspicious circumstances.
Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished,--
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
239. A plain reading of the said Section 5, the prosecution has to prove that accused Nos.1 to 3 had in their possession or 147 S.C.No.297/2013 under their control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that they did not have it in their possession or under their control for a lawful object with cogent and convincing evidence.
240. In this regard, the prosecution has proved with cogent and convincing evidence that accused No.1 received the detonators, gelatin sticks, 10 kg ammonium nitrate and nut, bolt and washers from a person sent by a person called Bhai and accused No.2 and 3 provided those articles through the said Bhai. The prosecution has also proved that those articles were seized at the instance of accused No.1 and they are explosive substances as discussed supra. The aforesaid facts clearly indicate that the aforesaid explosive substances were under the control of accused No.1 to 3. During examination of the accused persons under section 313 of Cr.P.C., the accused persons have not explained that they collected the said explosive substances for lawful object. In the absence of any such explanation, the accused are liable to be punished for the offence under section 5 of the Act.
241. Section 6 of the Explosive Substances Act, 1908 reads as follows :-
"6. Punishment of abettors.--Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.
242. A plain reading of Section 6 of the Arms Act, the prosecution has to prove that accused Nos.2 to 3 supplied money 148 S.C.No.297/2013 and explosive substances to accused No.1 through their associates and accused No.1 procured money and explosives from accused No.2 and 3 to commission of an offence under the Explosive Substances Act with cogent and convincing evidence.
243. In this case, accused No.1 asked accused No.2 and 3 to pay money to him. Then, accused No.2 and 3 contacted their foreign associates over phone and arranged money. Accused No.1 collected money from a person sent by accused No.2 and 3 at Srirangapatna twice. The prosecution has proved that accused No.1 received explosive substances from the associates of accused No.2 and 3. These facts clearly go to show that accused No.1 solicited for money and accused No.2 and 3 aided accused No.1 to collect money at Srirangapatna. This money was given to accused No.1 with an intention to cause explosion of a nature to endanger life or to cause serious injury to property. The said facts clearly indicate that the prosecution has proved the ingredients of the offence under section 6 of the Act. Accordingly, this Court has answered the point No.10 to 12 in the affirmative.
244. Point No.13 :- The allegations of the prosecution are that accused Nos.1 to 3 associated with the members of banned unlawful outfit, called LeT, received money, explosives to destroy vital installations to commit murder of Hindu leaders and to incite communal clashes and thereby committed the offence punishable under Sections 3 and 11 of the U.A.(P) Act. Sections 3 of U.A.(P) Act read as follows :-
"3. Declaration of an association as unlawful.--
(1) If the Central Government is of opinion that any association is, or has become, an unlawful association, it may, by notification in the Official Gazette, declare such association to be unlawful.149
S.C.No.297/2013 (2) Every such notification shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary:
Provided that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against the public interest to disclose.
(3) No such notification shall have effect until the Tribunal has, by an order made under section 4, confirmed the declaration made therein and the order is published in the Official Gazette:
Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Government to declare an association to be unlawful with immediate effect, it may, for reasons to be stated in writing, direct that the notification shall, subject to any order that may be made under section 4, have effect from the date of its publication in the Official Gazette.
(4) Every such notification shall, in addition to its publication in the Official Gazette, be published in not less than one daily newspaper having circulation in the State in which the principal office, if any, of the association affected is situated, and shall be served on such association in such manner as the Central Government may think fit and all or any of the following modes may be followed in effecting such service, namely:--
(a) by affixing a copy of the notification to some conspicuous part of the office, if any of the association; or
(b) by serving a copy of the notification, where possible, on the principal office-bearers, if any of the association; or
(c) by proclaiming by beat of drum or by means of loudspeakers, the contents of the notification in the area in which the activities of the association are ordinarily carried on; or
(d) in such other manner as may be prescribed.
245. A perusal of the said section, it confers a power on the Central Government to declare any association as unlawful association. It does not deal with any definition of an offence or it is not a penal provision. Therefore, this Court cannot convict the accused Nos.1 to 3 for the said section.
246. Section 11 of U.A.(P) Act reads as follows :-
"11. Penalty for dealing with funds of an unlawful association.--If any person on whom a prohibitory order has been served under 150 S.C.No.297/2013 sub-section (1) of section 7 in respect of any moneys, securities or credits pays, delivers, transfers or otherwise deals in any manner whatsoever with the same in contravention of the prohibitory order, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both, and notwithstanding anything contained in the Code, the court trying such contravention may also impose on the person convicted an additional fine to recover from him the amount of the moneys or credits or the market value of the securities in respect of which the prohibitory order has been contravened or such part thereof as the court may deem fit."
247. A plain reading of the aforesaid section, the prosecution has to prove before the Court that any person on whom a prohibitory order has been served under sub-section (1) of section 7 in respect of any moneys, securities or credits pays, delivers, transfers or otherwise deals in any manner whatsoever with the same in contravention of the prohibitory order beyond reasonable doubt. In this case, there is absolutely no evidence to show that the prohibitory order has been passed as per sub- section (1) of Section 7 of the Act against accused No.1 to 3. There is no evidence to show that the accused persons were dealing with funds of an unlawful association against the prohibitory order passed against them under sub-section (1) of Section 11. Hence, the prosecution has failed to prove the ingredients of the offence under Section 11 of U.A.(P) Act. Accordingly, this Court has answered point No.13 in the negative.
248. Point No.14 :- It is the allegation of the prosecution that accused Nos.1 to 3 closely associated with the members of LeT to destroy the major structure in India, to bring communal clashes between Hindus and Muslims and thereby committed the 151 S.C.No.297/2013 offence punishable under Section 13 of U.A.(P) Act. Section 13 of U.A.(P) Act reads as follows :-
"13. Punishment for unlawful activities.--
(1) Whoever--
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-
section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India"
249. A bare reading of the aforesaid section, the prosecution has to prove before this court that the accused persons took part in or committed, or advocated, abetted, advised or incited the commission of, any unlawful activity or in any way, assisted any unlawful activity of any association, declared unlawful under section 3 of the UA (P) Act. In order to know the meaning of unlawful activity, it is apposite the extract section 2(o) of the UA(P) Act which reads as follows;
"2(o) "unlawful activity", in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),--
(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the 152 S.C.No.297/2013 territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;
250. A perusal of the definition of unlawful activity, the prosecution has to prove before the court that the accused persons committed acts which are intended, or supported any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or which causes or is intended to cause disaffection against India.
251. A perusal of the evidence adduced by the prosecution, there is no material to show that the accused persons are members of Lasker-e-Toiba except the oral allegations. In the absence of any evidence, this court cannot hold that the accused persons are members of a unlawful association based on the oral allegations. As per section 13, even an individual can be convicted if the prosecution is able to prove that he is involved in unlawful activities.
153S.C.No.297/2013
252. In this case, accused No.2 and 3 abetted accused No.1 to commit unlawful activity with an intention to disrupt the sovereignty of India. In order to achieve the said object, accused No.2 and 3 introduced accused No.1 to their foreign associates, provided money, revolver, bullets and explosive substances through their foreign associates with intent to blast vital installations and commit the murder of Hindu Activists. Accused No.1 joined his hands with accused No.2 and 3 with an intention to achieve the said object and actively participated in commission of the said acts. These overt acts of the accused persons come within the four corners of section 13 of the Act and the prosecution has prove the ingredients of the offence beyond reasonable doubt. Accordingly, this Court has answered point No.14 in the affirmative.
253. Point No.15 :- The allegations of the prosecution are that the accused Nos.1 to 3 in order to threaten the unity, integrity, security of India with an intention to strike terror in the people of India, collected explosive substances and thereby committed the offence punishable under Section 15 of the U.A.(P) Act which is punishable under Section 16 of the Act. In order to appreciate the the evidence in a better manner, it is profitable to refer to Sections 15 of U.A.(P) Act, which read as follows:-
"15 Terrorist act. --Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--154
S.C.No.297/2013
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
Explanation. --For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary."
254. A bare reading of the said section, a person has to commit an act with an intent to threaten or likely to strike terror in the people or any section of the people in India by using bomb, Dynamite, etc., to cause death or injuries to any persons, loss, damage or destruction of property etc. In this case, the prosecution has adduced evidence to show that accused Nos.1 to 3 conspired with each other and they were able to acquire prohibited arm, ammunition and explosive substances to commit a terrorist act. But, they have not committed any act with an intention to threaten or likely to threaten the unity, integrity and sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India. Therefore, the prosecution has failed to prove any one of the ingredients of Section 15 of U.A.(P) Act. In the absence of any evidence to prove that the accused persons have committed the 155 S.C.No.297/2013 terrorist act, this Court cannot convict accused Nos.1 to 3 under Section 16 of U.A.(P) Act. Accordingly, this Court has answered Point No.15 in the negative.
255. Point No.16 :- It is the allegations of the prosecution that the accused raised funds from their foreign associates to commit terrorist acts in India and thereby committed the offence punishable under section 17 of U.A (P) Act. Section 17 of the Act reads as follows;
"17. Punishment for raising funds for terrorist act.-Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
256. A plain reading of the said section, the prosecution has to prove that the accused persons raised or provided funds or collected funds, whether from a legitimate or illegitimate source, from any person or persons or attempted to provide to, or raised or collected funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act.
257. In this case, accused No.1 asked accused No.2 and 3 for money. Then accused No.2 and 3 contacted their foreign associates and provided funds to accused No.1 through their associates with an intention to blast vital installations and commit 156 S.C.No.297/2013 the murder of prominent Hindu Activists. The prosecution has placed materials before this Court to show that accused Nos.2 and 2 provided funds to accused No.1 through their associates to commit terrorist act. Therefore, the prosecution has proved with cogent and convincing evidence that the accused persons have committed the offence punishable under Section 17 of U.A.(P) Act. Accordingly, this Court has answered Point No.16 in the affirmative.
258. Point No.17 :- The allegations of the prosecution are that the accused persons conspired with each other to commit a terrorist act and thereby committed the offence punishable under section 18 of U.A.(P) Act. In order to appreciate the evidence on record in a better manner, it is profitable to refer Sections 18 of the U.A.(P) Act, which read as follows :-
"18. Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
259. A plain reading of the said section, the prosecution has to prove that the accused persons conspired or attempted to commit, or advocated, abetted, advised or incited to commit a terrorist act. Even the act preparatory to the commission of a terrorist act is also punishable under the said section.
260. In this case, the prosecution has placed materials before this Court to show that accused Nos.2 and 3 provided money, arm, ammunition and explosive substances to accused 157 S.C.No.297/2013 No.1 through their foreign associates. They have not explained before the court why they collected arm, ammunition and explosive substances. The intention of the accused persons can be inferred from the overt acts committed by the accused persons that they collected those articles with an intention to commit a terrorist act. Therefore, the prosecution has proved with cogent and convincing evidence that accused Nos.1 to 3 conspired with each other to commit a terrorist act.
261. The learned counsel for accused No.1 and 3 argued that no terrorist act is committed in this case. In the absence of a terrorist act, none of the offence under the provisions of U.A. (P) Act is attracted against accused Nos.1 to 3. This court does not find any merit in the said submissions for the simple reason that the conspiracy to commit a terrorist act or the acts preparatory to commit a terrorist act is an independent offence that of section 16. In this case, the prosecution has proved with cogent and convincing evidence that the accused persons have conspired to commit a terrorist act and also made preparatory acts to commit a terrorist act. Hence, accused Nos.1 to 3 have committed the offence punishable under Section 18 of U.A.(P) Act. Accordingly this court has answered point No.17 in the affirmative.
262. Point No.18 :-The allegations of the prosecution are that accused Nos.2 and 3 recruited accused No.1 for commission of terrorist act and thereby committed the offence punishable under Sections 18-B of U.A.(P) Act. In order to appreciate the evidence on record in a better manner, it is profitable to refer to Sections 18-B of the U.A.(P) Act, which read as follows :-
158S.C.No.297/2013 "18-B Punishment for recruiting of any person or persons for terrorist act. --Whoever recruits or causes to be recruited any person or persons for commission of a terrorist act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
263. A bare reading of the aforesaid section, the prosecution has to prove that accused No.2 and 3 recruited accused No.1 to commit terrorist acts. As discussed supra, accused No.1 to 3 came in contact with each other when they were in central prison Bengaluru. Accused No.2 and 3 contacted accused No.1 from Central Prison Kalaburagi over phone. They made accused No.1 to contact their foreign associates. They provided money, Revolver, bullets and explosive substances through their associates with an intention to blast vital installations and to commit the murder of Hindu Activists. The said facts clearly indicate that accused No.2 and 3 recruited accused No.1 to do terrorist activities. Therefore, the prosecution has proved that accused Nos.2 and 3 recruited accused No.1 to commit the terrorist acts beyond reasonable doubt and committed the offence punishable under Section 18-B of U.A.(P) Act, but there is no evidence to show that accused No.1 has committed the offence under this section. Accordingly, this court has answered point No.18 partly in the affirmative.
264. Point No.5 :- As per the detail discussion on point Nos.1 to 18, this court has come to the conclusion that the prosecution has proved beyond reasonable doubt that the accused committed the offences punishable under section 120B and 122 of IPC, section 25 and 26 of the Arms Act, section 4, 5 159 S.C.No.297/2013 and 6 of the Explosive Substances Act and section 13, 17, 18 and 18B of U.A.(P) Act with cogent and convincing evidence.
265. The learned counsel for accused No.1 to 3 argued that no sanction is granted under section 45 of the U.A. (P) Act. The charge sheet material has not been placed before the independent authority as required under section 45(2) of U.A. (P) Act. There is no reference of any provision in the sanction order - Ex.P.36. Therefore, there is no valid sanction to prosecute accused No.1 to 3 under the provisions of IPC and under the provisions of U.A. (P) Act. Hence, the accused are entitled for acquittal.
266. In this regard, PW.24 - Sri B.G. Jyothi Prakash Mirji, the Commissioner of Police, Bengaluru has deposed in his evidence that Adugodi Police Station comes under Commissioner of Police, Bengaluru. On 07.07.2012, the Investigating Officer of Crime No.106/2012 submitted a requisition seeking permission to prosecute accused Nos.1 to 3 under Arms Act. After receipt of the report, he went through the report submitted by the Investigating Officer, FSL report and other materials produced along with the report and he was satisfied that accused No.1 to 3 committed the offence punishable under the Arms Act. Hence, on 17.07.2012, he accorded permission to prosecute accused No.1 to 3 under Arms Act as per Ex.P.32 as a District Magistrate.
267. He has further deposed that on 01.02.2012, the investigating Officer submitted a requisition, seeking permission to file charge sheet against accused No.1 to 3 for the offences 160 S.C.No.297/2013 punishable under Sec.4, 5 and 6 of Explosive Substances Act, 1908 and also requested that he needs permission of the Government to file charge sheet against accused No.1 to 3 under the Unlawful Activities (Prevention) Act. Accordingly, on 04.10.2012, he permitted the investigation officer to file charge sheet under Explosive Substances Act and also instructed the investigation officer to approach the Government to obtain the Sanction of the Government under Unlawful Activities (Prevention) Act.
268. PW.25 - Sri Raghavendra H. Auradkar, the Secretary and Principal Secretary, PCAS, Home Department, Government of Karnataka has deposed that the Director General of Police, Karnataka State submitted charge sheet and its enclosures for seeking sanction to prosecute accused Nos.1 to 3 in Cr.No.106/2012 of Adugodi Police Station, Bengaluru City for the offences punishable u/S.120B, 121, 122, 124A, 153A, 153B R/w. Sec.34 of IPC, Sec.3, 25 and 26 of Indian Arms Act, 1959, Sec.4, 5, and 6 of Explosive Substances Act, 1908 and Sec.3, 11, 13, 16, 17, 18 and 18b of Unlawful Activities (Prevention) Act. He further deposed that they sent the said records to the Director of Prosecutions, Bengaluru for his opinion. He went through the report of the Director of Prosecutions, charge sheet materials and also discussed with Deputy Secretary of their department and the investigating officer of the case. He found there were prima-facie materials to issue prosecution sanction order to prosecute accused Nos.1 to 3 for the offences punishable under Section 120-B, 121, 122, 124(A), 153(A), 153(B) R/w section 34 of IPC, section 3, 11, 13, 16, 17, 18 and 18-B of Unlawful Activities 161 S.C.No.297/2013 (Prevention) Act. Accordingly, he issued prosecution sanction order as per Ex.P.92 to prosecute accused No.1 to 3.
269. A perusal of the cross examination of the said witnesses, they were cross examined at length and nothing has been elicited to disbelieve their evidence. In this regard, the learned Special Public Prosecutor has placed reliance on the decision of the Hon'ble High Court of Karnataka in High Court of Karnataka represented by The Registrar General, Bangalore Vs. Syed Mohammed Ibrahim, 2105 (1) KCCR 513 (DB). In this decision, the Hon'ble High Court of Karnataka has laid down at paras 146 to 154 which read as follows;
"146. It was contended that the said sanction was issued without looking into the entire facts of the case, which were not placed before the sanctioning authority and, therefore, it is vitiated. Ex.P- 245 was not placed before the sanctioning authority before the sanction was accorded. In the absence of Ex.P-245, there cannot be any sanction for prosecution under Sections 121 and 121-A. By filing an application under Section 260, the additional charges were framed under Sections 121 and 121-A. Therefore prior sanction to prosecute the accused for these offences cannot be inferred from the sanction order which is produced in the case. In other words, there is no valid sanction to prosecute the accused in respect of the offences under Section 121 and 121-A of IPC. Ex.P61 is the sanction.
147. The argument is that the original order of sanction is not produced and only a stencil copy is produced without laying foundation for adducing the secondary evidence. The requirement of law is to produce the original sanction order in a criminal trial, whether the accused objects or not the document sought to be produced should be admissible in evidence. Even if at the time of production, objection is not raised, it could be raised at a subsequent stage including the appellate stage. The author of sanction is not examined. Therefore the sanction order ought to have been held as not proved.
148. The tenor of the entire cross-examination is to the effect that though they are the sanctioning authority, they have accorded sanction as per the directions issued by the higher authorities and have not applied their minds independently and, therefore, the sanction is vitiated. As rightly pointed out by the trial Court, the 162 S.C.No.297/2013 sanctioning authority is the Government of Karnataka and not the Under Secretary. Therefore, the entire cross-examination is not tenable, and there is no substance in the said contention.
149. It was contended that the said sanction was issued without looking into the entire facts of the case, which were not placed before the sanctioning authority and, therefore, it is vitiated.
150. It was further argued that a reading of the sanction accorded does not disclose any cognizable offence. The prosecution has to prove firstly, that the sanction discloses the facts constituting the offence; and secondly, that if the order does not disclose the facts constituting the offence, atleast the prosecution should adduce evidence showing the material which investigating agency had placed before the Sanctioning Authority. In the instant case, on both the counts, the prosecution has to fail.
151. In support of the said contention reliance was placed on the following judgments.
In GOKULCHAND DWARKADAS MORARKA -VS- THE KING reported in AIR (35) 1948 PRIVY COUNCIL 82, at paragraphs 9 and 10, it is held as under:
"9. Upon this state of the evidence, the respondent has argued that the view which has prevailed in the High Court of Bombay is wrong and that a sanction which names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is a sufficient compliance with cl.23 of the said Order. In their Lordships' view, in order to comply with the provisions of cl.23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl.23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seems to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient.163
S.C.No.297/2013 Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence, a compliance with the actual terms of cl.23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution - that is, for having done acts which constitute a breach of the Order - that the sanction is required. In the present case, there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid.
10. Mr.Megaw for the respondent has suggested that this view of the law would involve in every case that the Court would be bound to see that the case proved corresponded exactly with the case for which sanction had been given. But this is not so. The giving of sanction confers jurisdiction on the Court to try the case and the Judge or Magistrate having jurisdiction must try the case in the ordinary way under the Code of Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates".
152. In the case of MODH. IQBAL AHMED Vs. STATE OF ANDHRA PRADESH reported in AIR 1979 SC 677, it is held as under:
"3. A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on 31-3-1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7. P.W. 2 has produced the order implementing the Resolution of the Sanctioning Authority 164 S.C.No.297/2013 which is Exhibit P- 10 and is dated 21st April, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-
16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."
153. The Apex Court in the case of NARBADA DEVI GUPTA Vs. BIRENDRA KUMAR JAISWAL AND ANOTHER reported in AIR 2004 SC 175 has held as under:
"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala and Sons (P) Ltd., (supra). The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be 165 S.C.No.297/2013 proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different whether the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole can not be treated as having been exhibited as admitted documents."
154. From the aforesaid judgments it is clear that the grant of sanction is an executive act. The validity of sanction cannot be tested in the light of the principles applied to quasi judicial orders. The test to be applied is, whether relevant material that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting the sanction. A sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is not a sufficient compliance. In order to make it a valid sanction it must be proved that sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction but this is not an essential requirement. Similarly, law does not require a sanction to be in any particular form. But, if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Sanction to prosecute is an important matter. It constitutes a condition precedent to the institution of the prosecution. The Government has an absolute discretion to grant or withhold their sanction."
270. A perusal of the law laid down in the aforesaid decision, grant of sanction is an executive act. The validity of sanction cannot be tested in the light of the principles applied to quasi judicial officers. The test to be applied is whether the relevant material that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting the sanction. In order to make it valid sanction, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable 166 S.C.No.297/2013 that the facts should be referred to on the face of the sanction but this is not an essential requirement. Similarly, the law does not require a sanction to be in any particular form.
271. Applying the principles laid down in the said decision, PW.24 issued sanction to prosecute accused No.1 to 3 under section 3, 25 and 26 of the Arms Act after considering the report submitted by the investigation officer. He clearly deposed that before issuing sanction, he was satisfied that there was prima facie case to issue sanction under section 3, 25 and 26 of the Arms Act and therefore, he issued sanction.
272. PW.25 clearly deposed that after receipt of the report, he submitted the same to independent review committee for scrutiny, discussed with other members of the committee and issued sanction after satisfying himself that there are prima facie materials to prosecution the accused persons under the provisions of IPC, the explosives substances Act and U.A. (P) Act. Therefore, this court does not find any defect in the sanction issued by the PW.24 and 25. The prosecution has fulfilled all the principles laid down in the said decision and the sanctions issued by PW.24 and 25 are valid sanctions. Hence, this court has declined to accept the arguments canvassed by the learned counsel for accused No.1 and 3 in this regard.
273. The learned counsel for accused No.2 has not submitted any oral arguments but he submitted a written arguments. He has not taken any specific contention except extracting the deposition of the PW.21. The said extracted deposition is more or less similar to the contentions raised by the 167 S.C.No.297/2013 learned counsel for accused No.1 to 3. All the contentions raised by the learned counsel for accused No.1 to 3 are answered by this court in detail. Hence, there is no need to answer the said portion of deposition of PW.21 once again. He has cited the decisions of the Hon'ble Apex Court in Salim Aktar Alias Mota's case, Arjun Singh's case and Bahal singh's case in his written arguments. This court has gone through the said decisions, but with great respect to the Hon'ble Apex Court, the principles laid down in the said decisions are not applicable to the facts and circumstances of this case. Hence, this court has not discussed those decisions in detail.
274. Further, this court has also come to the conclusion that the Hon'ble Apex Court directed all the courts in India to keep trial of the offence under section 124A of IPC in abeyance till final verdict of the Hon'ble Apex Court. Hence, this court has not passed the judgment on the offence under section 124A of IPC and the same is kept in abeyance. In view of the discussions made supra, this court proceeds to pass the following;
ORDER This court has not pronounced the judgment in respect of the offence punishable under section 124A of IPC and the same is kept in abeyance in view of the directions issued by the Hon'ble Apex Court in S.G. Vombatkere Versus Union of India, Writ Petition (C) No.682/221, decided on 11.05.2022.
Accused No.1 - Sri Syed Abdul Rehaman @ Abdul Rehaman, accused No.2 - Sri Mohammed Fahad Hi @ Mohammed Koya and accused No.3 -
Sri Apsarpasha @ Khushiruddin are not found 168 S.C.No.297/2013 guilty of the offences punishable under sections 121, 121-A, 153-A and 153-B of IPC, section 3, 11 and 16 of U.A.(P) Act. Hence, acting under section 235(1) of Cr.P.C. Accused No.1 to 3 are hereby acquitted for the offences punishable under sections 121, 121-A, 153-A and 153-B of IPC and section 3, 11 and 16 of U.A.(P) Act.
Accused No.1 - Sri Syed Abdul Rehaman @ Abdul Rehaman is found guilty of the offences punishable under sections 120-B and 122 of IPC, section 13, 17 and 18 of U.A.(P) Act, 25 and 26 of Arms Act and section 4, 5 and 6 of Explosive substances Act 1908. Hence, acting under Section 235(2) of the Cr.P.C., accused No.1 is convicted for the offences punishable under sections 120-B and 122 of IPC, section 13, 17 and 18 of U.A.(P) Act, 25 and 26 of Arms Act and section 4, 5 and 6 of Explosive substances Act 1908.
Accused No.2 - Sri Mohammed Fahad Hi @ Mohammed Koya, is found guilty of the offences punishable under sections 120-B and 122 of IPC, section 13, 17, 18 and 18(B) of U.A.(P) Act and section 4, 5 and 6 of Explosive substances Act 1908. Hence, acting under Section 235(2) of the Cr.P.C., accused No.2 is convicted for the offences punishable under sections 120-B and 122 of IPC, section 13, 17, 18 and 18(B) of U.A.(P) Act and section 4, 5 and 6 of Explosive substances Act 1908.
Accused No.3 - Sri Apsarpasha @ Khushiruddin, is found guilty of the offences punishable under sections 120-B and 122 of IPC, section 13, 17, 18 and 18(B) of U.A.(P) Act and section 4, 5 and 6 of Explosive substances Act 1908. Hence, acting under Section 235(2) of the Cr.P.C., accused No.3 is convicted for the offences punishable under 169 S.C.No.297/2013 sections 120-B and 122 of IPC, section 13, 17, 18 and 18(B) of U.A.(P) Act and section 4, 5 and 6 of Explosive substances Act 1908.
(Partly dictated to the Judgment Writer, transcription thereof computerized by him, partly typed by me in my laptop as well as in the computer allotted to my chamber, corrected and then pronounced by me, in the open Court on this 23rd day of February, 2023) (GANGADHARA C.M.), XLIX Addl. City Civil & Sessions Judge, (Special Judge for trial of NIA Cases), (CCH-50) - Bengaluru.
ORDER ON SENTENCE Accused No.1 and 2 are produced from Central Prison, Bengaluru though Video Conferencing and accused No.3 is produced from Central Prison, Belagavi through Jitsi meet.
2. This court has heard the accused persons, the learned counsel appearing for accused No.1 and 3 and the learned Special Public Prosecutor on the award of the sentence.
3. Accused No.1 has submitted that he has not committed any offence and he does not know accused No.2 and 3. Hence, he has prayed to take lenient view while awarding the sentence.
4. Accused No.3 has submitted that he has not committed any offence. The court may pass necessary orders.
5. The learned counsel for accused Nos.1 and 3submitted that considering the age of accused Nos.1 and 3 liberal view can be taken while awarding sentence.
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6. Accused No.2 submitted that he already sent letter to this Court, the same may be considered and lenient view may be taken.
7. Accused No.2 has sent a letter by way of his submissions and he has submitted before the court that the said letter may be considered as his submissions. The letter reads as follows :-
"In the Honourable CCH-50, Bangalore.
Through : Chief Superintendent of Bengaluru Jail.
S.C.297/13 Applicant : FAHAD Subject : Submission before sentencing of Judgment. Your Honour, Before your profoundself pronounce the final sentence of the Judgment, I want to draw your attention to my following humble submissions :-
1. Please grant me 'set-off' against the sentence of imprisonment in terms of Section 428 of Cr.P.C. and please mention it in your judgment order.
2. Please pass an order that the sentence of imprisonment shall 'run concurrently' and mention it in your judgment order.
3. Regarding "Fine" :- Sir, I have spent '17 years' (since 2006) of imprisonment. My family life, youth and career are all lost. I have no source of income nor anyone to help me financially.
So, I will not be able to pay fine.
I request you to either 'spare me from fine' altogether if not then please keep the amount of fine to the minimum otherwise I will have to spend much more time in prison in default of payment of fine. Keeping me for more time in imprisonment will neither benefit Government nor society. Instead, the expenses of my imprisonment will be a waste of tax payer's money and a burden on them.
4. Please give me minimum sentence of imprisonment in all the sections in which I am pronounced guilty.
5. Please clearly mention in the judgment that if and when my punishment ends, I shall be released either to Kerala(as may paternal relatives live there) or send me to Pakistan (If that country accepts me), but I shall not be kept in Jail forever.
6. Please direct the prison authorities to :
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(a) Allow me to pursue further education (through correspondence or otherwise) from inside the Prison and that Jail Authorities shall facilitate my education.
(b) I shall be allowed to work in the Prison as other convicts do. So that, I will not have to beg other inmates for essentials.
Thanks, Sd/-
M. Fahad S/o Mr. Abdul Hai, UTP 6098, Central Prison, Bangalore.
8. The learned Special Public Persecutor has argued that accused No.2 and 3 were trained by international terrorist organisations like Al-brothers, Lakser-e-Toiba, etc., in Pakistan. Accused No.1 to 3 contacted their foreign associates, collected money arms, ammunition and explosive substances and conspired to wage war against India and also conspired to do terrorist activities in India. He further argued that accused No.2 is convicted and sentenced to undergo imprisonment for eight years in Kerala court and he was convicted and sentenced to undergo imprisonment for 10 years in the Hon'ble Principal City Civil and Sessions Judge, Bengaluru. Accused No.3 is also convicted and sentenced to undergo life imprisonment and the same was confirmed by the Hon'ble Apex Court. Hence, the accused persons are not entitled for any leniency and they are liable for maximum imprisonment. Hence, he prayed to award maximum punishment to the accused.
9. This court has given the thoughtful consideration to the aforesaid submissions. It is settled principle of law that while deciding the quantum of punishment, it is required that the court should strike a balance between the aggravating and mitigating 172 S.C.No.297/2013 circumstances. It is also well settled principle of law that the punishment must be proportionate to the crime. Therefore, it is the duty of the court to impose adequate sentence and it should be proportionate to the crime.
10. It appears from the records that the offences charged against them carry minimum sentence and accused No.2 and 3 were previously convicted by the competent courts of law. Therefore, this is not a fit case to release the accused persons either under section 360 of Cr.P.C. or under any provisions of the Probation of Offenders Act.
11. The aggravating circumstances in this case are that the accused persons have committed heinous offence against India. Accused No.1 came in contact with accused No.2 and 3 in Central Prison, Bengaluru. Accused No.1 was released on bail on 31.12.2011 from Central Prison, Bengaluru and accused No.2 and 3 were shifted to Kalaburagi. Even though accused No.2 and 3 were in prison, they contacted accused No.1 through phone. They not only contacted accused No.1, but also contacted their foreign associates from the prison. Accused No.2 and 3 made accused No.1 to contact their foreign associates. Further, accused No.2 and 3 provided money, revolver, live bullets and explosive substances with an intention to blast vital installations and to commit murder of the prominent Hindu Activists. Accused No.2 and 3 have made all these acts when they were in prison. These are the most aggravating circumstances against accused No.2 and 3.
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12. Moreover, accused No.2 has been convicted in SC No.950/2012 in Kozhikode court, Kerala and he was ordered to undergo imprisonment for eight years. Further, accused No.2 has been convicted in Spl.C.C. No.106/2015 by the Hon'ble Principal City Civil and Sessions Judge, Bengaluru and he was sentenced to undergo imprisonment for ten years. Accused No.3 is convicted by the Hon'ble City Fast Track (Sessions) Judge Bengaluru city (FTC-II) for various offences and he was sentenced to undergo maximum sentence of imprisonment for life and the same was confirmed by the Hon'ble Apex Court in Clr.A. No.201-202/2018 C/W 203-204/2018, 205-207/2018 and 208-209/2018 on 11.11.2022. These facts are also the aggravating circumstances against accused No.2 and 3.
13. Though this court cannot consider those facts for enhanced punishment since there is no specific provision for enhanced punishment, this court can consider those facts as one of the aggravating circumstances while imposing the sentence on the accused persons. A perusal of the records, this court does not find any mitigating circumstances in favour of the accused persons. Even the accused persons have also not submitted any mitigating circumstances when they were given opportunity to submit on the award of sentence.
14. The maximum punishment prescribed for the offences under section 120-B, 122 of IPC, section 4 of the Explosive substances Act 1908, and section 17, 18 and 18(B) of Unlawful Activities (Prevention) Act is imprisonment for life. This court can award sentence up to seven years for the offence punishable under section 13 of U.A.(P) Act, ten years for the offence 174 S.C.No.297/2013 punishable under section 5 and 6 of the Explosive substances Act 1908, ten years for the offence punishable under section 25 of the Arms Act and seven years for the offence under section 26 of the Arms act. As discussed supra, the punishment must be proportionate to the crime committed by the accused. The punishment should neither be so harsh nor so negligible, but it should be proportionate to the crime. In this case, the accused persons have committed heinous offence against India and they committed these offences when they were in jail. Accused No.2 and 3 were already convicted by the competent courts of law. Therefore, in the opinion of the court, if the maximum sentence is imposed for the offence proved against the accused persons, it is proportionate to the crime committed by the accused persons.
15. As regards imposition of fine, admittedly the accused persons were in jail for the last 10 years. They have no independent source of income. No contra materials have been produced before the court by the prosecution to show his financial capacity to pay huge amount of fine. Therefore, this court by considering their financial capacity and their family background, this court would propose to impose a reasonable fine amount of Rs.20,000/- each for the offence under section 120-B and 122 of IPC, Rs.10,000/- each for the offence under section 17, 18 and 18(B) of the Unlawful Activities (Prevention) Act, Rs.10,000/- for the offence under section 25 of the Arms Act, Rs.10,000/- each for the offence under section 4, 5 and 6 of the Explosive substances Act, Rs.5,000/- for the offence under section 13 of UA (P) Act and Rs.5,000/- for the offence under section 26 of the Arms Act. Hence, this court proceeds to pass the following:
175S.C.No.297/2013 ORDER Accused No.1 is sentenced to undergo imprisonment for life and liable to pay a fine of Rs.20,000/- for the offence punishable under Section 120-B of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.1 is sentenced to undergo imprisonment for life and liable to pay a fine of Rs.20,000/- for the offence punishable under Section 122 of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of five (05) years and liable to pay a fine of Rs.5,000/- for the offence punishable under Section 13 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 17 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 18 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
176S.C.No.297/2013 Accused No.1 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 25 of Arms Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of five (05) years and liable to pay a fine of Rs.5,000/- for the offence punishable under Section 26 of Arms Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 4 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 5 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.1 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 6 of Explosive Substances Act, 1908. In default of 177 S.C.No.297/2013 payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo imprisonment for life and liable to pay a fine of Rs.20,000/- for the offence punishable under Section 120-B of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.2 is sentenced to undergo imprisonment for life and liable to pay a fine of Rs.20,000/- for the offence punishable under Section 122 of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of five (05) years and liable to pay a fine of Rs.5,000/- for the offence punishable under Section 13 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 17 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 18 of U.A. (P) Act. In default of payment of fine, the 178 S.C.No.297/2013 accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 18(B) of U.A.(P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 4 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 5 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.2 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 6 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo imprisonment for life and liable to pay a fine of 179 S.C.No.297/2013 Rs.20,000/- for the offence punishable under Section 120-B of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.3 is sentenced to undergo imprisonment for life and liable to pay a fine of Rs.20,000/- for the offence punishable under Section 122 of the IPC. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of five (05) years and liable to pay a fine of Rs.5,000/- for the offence punishable under Section 13 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 17 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 18 of U.A. (P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 18(B) of 180 S.C.No.297/2013 U.A.(P) Act. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of ten (10) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 4 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 5 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Accused No.3 is sentenced to undergo simple imprisonment for a period of seven (07) years and liable to pay a fine of Rs.10,000/- for the offence punishable under Section 6 of Explosive Substances Act, 1908. In default of payment of fine, the accused shall undergo simple imprisonment for a period of three months.
Substantial sentences in respect of all the above offences shall run concurrently.
Since M.O.1 to 6 are valuable properties, it is ordered to be confiscated to the state after completion of appeal period.
Since MO.1 is a revolver and MO.2 are live bullets and empty cartridges, it is ordered to deposit in the armoury section of City Armed 181 S.C.No.297/2013 Reserve, Head Quarter, Mysore Road, Bengaluru.
The whole fine recovered to be applied in defraying the expenses incurred in the prosecution.
The office is directed to supply free copy of this judgment to accused Nos.1 to 3 forthwith through email and send the hard copy of the judgment through post since the presence of accused Nos.1 to 3 are secured through Video Conferencing.
Further, the office is hereby directed to issue warrant of conviction against accused Nos.1 to 3 accordingly.
(Partly dictated to the Judgment Writer, directly typed by him in Computer, partly typed by me in my laptop as well as in the computer allotted to my chamber, corrected and then pronounced by me, in the open Court on this 03rd day of March, 2023) (GANGADHARA C.M.), XLIX Addl. City Civil & Sessions Judge, (Special Judge for trial of NIA Cases), (CCH-50) - Bengaluru.
ANNEXURES List of witnesses examined on behalf of prosecution :-
PW.1 Sri Abdul Samad
PW.2 Sri K.C. Ashokan
PW.3 Sri P.S. Jain
PW.4 Sri Dharmappa Shivamurthappa Hatti
PW.5 Sri S.C. Hirematt
PW.6 Sri Syed Abdul Kareem
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PW.7 Sri B.C. Ravindra
PW.8 Sri C. Narasegowda
PW.9 Sri Swaminathan
PW.10 Sri Vijaykumar
PW.11 Sri Raghunath
PW.12 Sri Balaraju B
PW.13 Sri Tanveer S.R.
PW.14 Sri Murthy S.N.
PW.15 Sri Manjunatha V
PW.16 Sri Suresh Babu S.S.
PW.17 Sri A.B. Rajendrakumar
PW.18 Sri M. Nagaraj
PW.19 Sri Krishnakumar
PW.20 Sri R. Manjunath
PW.21 Sri Chalapathi
PW.22 Sri Stanley
PW.23 Sri Ravi Narona
PW.24 Sri B.G. Jyothi Prakash Mirji
PW.25 Raghavendra H Auradkar
PW.26 Sri M.K. Thammaiah
List of documents marked on behalf of prosecution :-
Ex.P.1 Mahazar recorded near Vencob Chicken Centre.
Ex.P.1(a) Signature of PW-1 Ex.P.1(b) Signature of PW-2 Ex.P.1(c) Signature of PW-10 Ex.P.1(d) Signature of PW-12 Ex.P.2 Complaint Ex.P.2(a) Signature of PW-2 Ex.P.2(b) Signature of PW-20 183 S.C.No.297/2013 Ex.P.3 Mahazar prepared at CCB office, Bengaluru. Ex.P.3(a) Signature of PW-3 Ex.P.3(b) Signature of PW-21 Ex.P.4 Mahazar prepared at Central Prison, Parappana Agrahara, Bengaluru. Ex.P.4(a) Signature of PW-4 Ex.P.4(b) Signature of PW-21 Ex.P.5 Mahazar signed by PW-6 at CCB Police Station Ex.P.5(a) Signature of PW-6 Ex.P.5(b) Signature of PW-20 Ex.P.6 Mahazar signed by PW-6 at CCB Police Station Ex.P.6(a) Signature of PW-6 Ex.P.6(b) Signature of PW-21 Ex.P.7 Statement given by PW-6 Ex.P.8 Report prepared by PW-7 Ex.P.8(a) Signature of PW-7 Ex.P.8(b) Signature of PW-21 Ex.P.9 Analysis Report prepared by PW-7 Ex.P.9(a) Signature of PW-7 Ex.P.10 Sample seal Ex.P.10(a) Signature of PW-7 Ex.P.11 Report prepared by PW-7 with regard to M.O.1 Ex.P.11(a) Signature of PW-7 Ex.P.11(b) Signature of PW-21 Ex.P.12 Report containing scientific methods and reasons, submitted by PW-7 Ex.P.12(a) Signature of PW-7 Ex.P.13 Sample seal Ex.P.13(a) Signature of PW-7 Ex.P.14 A letter issued by ACP, CCB to PW-8. Ex.P.14(a) Signature of PW-8 184 S.C.No.297/2013 Ex.P.14(b) Signature of PW-21 Ex.P.15 A letter sent to ACP, CCB by PW-8, regarding production of sealed items Ex.P.15(a) Signature of PW-8 Ex.P.16 A letter dated 19.10.2012, containing the details furnished by PW-11 Ex.P.16(a) Signature of PW-11
Ex.P.16(b) & (c) Copy of documents enclosed with Ex.P.16 Ex.P.17 A letter from Vodafone Company regarding call details information Ex.P.17(a) Signature of PW-14 Ex.P.18 Customer Information Form furnished by Vodafone Company Ex.P.18(a) The copy of Voter ID card of Sai Usman Shahapur Ex.P.19 Passport Ex.P.20 Acknowledgment of receipt Ex.P.21 & Letter prepared by PW-19 and addressed to Ex.P.22 Investigating Officer Ex.P.23 FIR bearing No.106/2012 of Adugodi P.S. Ex.P.23(a) Signature of PW-20 Ex.P.24 PF No.113/2012 Ex.P.24(a) Signature of PW-20 Ex.P.25 Memo given by Commissioner to transfer the case to CCB.
Ex.P.26 Voluntary statement of accused No.1
Ex.P.26(a) Signature of PW-21
Ex.P.26(b) Relevant portion in voluntary statement of
accused No.1
Ex.P.26(c) Relevant portion in voluntary statement of
accused No.1
Ex.P.27 Mahazar dated 11.05.2012
Ex.P.27(a) Signature of PW-21
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Ex.P.28 Mahazar prepared at Kittoor Rani Chennamma
Park
Ex.P.28(a) Signature of Pw-21
Ex.P.29 Mahazar dated 18.05.2012
Ex.P.29(a) Signature of PW-21
Ex.P.30 Voluntary statement of accused No.2 dated
20.05.2012
Ex.P.30(a) Signature of PW-21
Ex.P.31 Voluntary statement of accused No.3 dated
20.05.2012
Ex.P.31(a) Signature of PW-21
Ex.P.32 Permission Letter given by Commissioner of
Police, dated 17.07.2012
Ex.P.32(a) Signature of PW-21 on Ex.P.32 for receiving the
same.
Ex.P.32(b) Signature of PW-24
Ex.P.33 Passport given to CW-54
Ex.P.33(a) Signature of PW-21
Ex.P.34 Letter from Chief Superintendent, Central
Prison, Gulbarga.
Ex.P.35 The translated version of M.O.7
Ex.P.35(a) Signature of PW-21
Ex.P.35(b) to (i) Signatures of PW-13 on each page of Ex.P.35. Ex.P.36 Permission Letter given by Commissioner of Police Ex.P.36(a) Signature of PW-21 on Ex.P.36 for receiving the same.
Ex.P.37 Contact chart of accused No.1 furnished by Uninor Company Ex.P.38 CDR of call details of mobile No.9632144042 Ex.P.38(a) 3 entries of Gulbarga location on 16.03.2012. Ex.P.38(b) 2 entries pertaining to show that A1 was in Srirangapatna location on 17.03.2012.186
S.C.No.297/2013 Ex.P.39 CDR given by Vodafone company with regard to calls between accused No.1's mobile No.9060729118 and mobile No.9739091622 Ex.P.40 CDR given by MTS company with regard to calls between mobile No.9060729118 and 914184490 Ex.P.41 CDR of call details from the mobile No.9241372337 used by A2 and A3 to the mobile No. 9060729118 of A1.
Ex.P.42 Letter from TATA company with regard to SIM No.9241372337 Ex.P.42(a) Signature of PW-23 Ex.P.43 The copy of application form of Sai Usman Shapur which was submitted to Tata Company Ex.P.43(a) Signature of PW-23 Ex.P.44 CDR of inter-se calls between mobile No.9241097534 used by A2 and A3 and mobile No.9060729118 of A1.
Ex.P.45 CDR of inter-se calls between mobile No.966503021920 and mobile No.9060729118 of A1.
Ex.P.46 CDR of inter-se calls between mobile No.8220120820 and mobile No.9060729118 used by A1.
Ex.P.47 Letter from Airtel company, Chennai, with regard to SIM No.8220120820.
Ex.P.47(a) Signature of PW-22 Ex.P.48 The copy of application form of Tanveer Khan which was submitted to Airtel Company.
Ex.P.49 The copy of Voter ID card of Tanveer Khan. Ex.P.50 CDR of inter-se calls between mobile No.9535656581 and mobile No.9060729118 used by A1.
Ex.P.51 The copy of application form of Saheed Ahmed which was submitted to Airtel Company.
Ex.P.52 The copy of Voter ID card of Saheed Ahmed.187
S.C.No.297/2013 Ex.P.53 CDR of SMS sent from mobile No.8041227351 used by A2 and A3 to the mobile No.9060729118 used by A1.
Ex.P.54 CDR of call details between mobile
No.8951099374 and mobile No.9060729118
used by A1.
Ex.P.55 CDR of SMS sent from mobile No.9060729118
used by A1 to the mobile No.9632168474.
Ex.P.56 The copy of application form of Syed Nayaz
which was submitted to Airtel Company.
Ex.P.57 CDR of inter-se calls between mobile
No.8220120820 and mobile No.9980931063
which was used by A1.
Ex.P.58 CDR of call details from mobile No.8220120820
to mobile No.9535656581.
Ex.P.59 CDR with regard to forwarding a call from
mobile No.8220120820 to mobile
No.9060729118
Ex.P.60 The copy of application form of Govindaraju for
SIM No.9035698554 which was submitted to
Tata company
Ex.P.60(a) Signature of PW-23
Ex.P.61 The copy of Voter ID card of Govindaraju.
Ex.P.61(a) Signature of PW-23
Ex.P.62 CDR of inter-se calls between mobile
No.9035698554 and mobile No.9060729118.
Ex.P.63 The copy of application form of S.B.Devaraj for
SIM No.9880979347 which was submitted to
Airtel Company
Ex.P.64 The copy of Voter ID card of S.B.Devaraj.
Ex.P.65 CDR of inter-se calls between mobile
No.9141844490 and mobile No.9880979347
Ex.P.66 CDR of SMS sent from mobile No. 8976057645
to the mobile No.9880979347 used by A1.
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Ex.P.67 The copy of application form of Shabbir Ahmed
Ji Ansari for SIM No.8976057645 which was
submitted to Tata company.
Ex.P.67(a) Signature of PW-23.
Ex.P.68 The copy of Voter ID card of Shabbir Ahmed Ji
Ansari.
Ex.P.68(a) Signature of PW-23
Ex.P.69 CDR of inter-se calls between mobile
No.9739091622 used by A2 and A3 and mobile
No.9880979347 used by A1
Ex.P.70 CDR of inter-se calls between mobile
No.9632144042 used by A2 and A3 and mobile
No.9632168474 used by A1
Ex.P.71 The copy of application form of Fathima for SIM
No.9632144042 which was submitted to Airtel company Ex.P.72 The copy of Voter ID card of Fathima Ex.P.73 CDR of inter-se calls between mobile No.9535656581 and mobile No.9632168474 which used by A1 Ex.P.74 CDR of inter-se calls and SMS between mobile No.9632144042 used by A2 and A3 and mobile No.9008258230 of Ameentaj Parvez.
Ex.P.75 CDR of inter-se calls and SMS between mobile No.9632144042 used by A2 & A3 and mobile No.9060729118 used by A1 Ex.P.75(a) The entries pertaining to 4 calls from the mobile No.9632144042 used by A2 and A3 to the mobile No.9060729118 used by A1 on 16.03.2012.
Ex.P.75(b) The entries showing that A2 and A3 made 3 calls from mobile No.9632144042 to mobile No.9060729118 used by A1, on 17.03.2012.
Ex.P.76 CDR of inter-se calls and SMS between mobile No.9632144042 used by A2 & A3 and mobile No.9632168474 used by A1.
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Ex.P.77 CDR of call details from mobile
No.8220120820 used by A1 to mobile
No.9739091622 used by A2 & A3.
Ex.P.78 CDR of call details from mobile
No.9241097534 used by A3 to mobile
No.9739091622.
Ex.P.79 CDR of inter-se calls and SMS between mobile No.9739091622 and mobile No.9141844490 of Ameentaj Parvez.
Ex.P.80 CDR of inter-se calls and SMS between mobile No.9739091622 and mobile No.9060729118 used by A1.
Ex.P.81 CDR of incoming calls of mobile No.9880979347 used by A1 from mobile No.9739091622 used by A2 & A3.
Ex.P.82 CDR of call details from mobile No.9141844490 used by A2 & A3 to mobile No.8220120820 used by A1.
Ex.P.83 CDR of call details from mobile No.966503021920 used by a suspicion person from Saudi Arabia to the mobile No.9141844490 used by A2 and A3.
Ex.P.84 CDR of call details from mobile No.9060729118 used by A1 to the mobile No.9141844490 used by A2 and A3.
Ex.P.85 CDR of call details from mobile No.9880947347 used by A1 to the mobile No.9141844490 used by A2 and A3.
Ex.P.86 CDR of forwarding calls from mobile
No.9141844490.
Ex.P.87 CDR of call details from mobile No.9241372337 used by A2 and A3 in Gulbarga Prison, to the mobile No.9060729118 used by A1.
Ex.P.88 CDR of inter-se calls between the mobile No.9241097534 used by A2 and A3 and the mobile No.9060729118 used by A1.
190S.C.No.297/2013 Ex.P.89 The certified copy of voluntary statement of Accused No.2 given by Police Inspector, Vijayanagara P.S. Mysore to PW-21.
Ex.P.90 The details of Police staff who was in Centri Duty in Central Prison, Bengaluru.
Ex.P.91 The mahazar prepared by Police Inspector/CW-39 in Gulbarga Prison and given to PW-21.
Ex.P.92 The Sanction Order issued by the Government on 20.10.2012.
Ex.P.92(a) The signature of PW-21.
Ex.P.92(b) The certified copy of Ex.P.92.
Ex.P.92(A)(a) The signature of PW-25
Ex.P.93 The requisition letter submitted before the court
to add columns under Explosives Substances
Act and Unlawful Activities (Prevention) Act in the charge sheet.
Ex.P.94 to The certified copies of FIR, complaint and Ex.P.96 charge sheet of Cr.No.110/2005 registered against A3 by Sadhashivanagar P.S. Ex.P.97 & The certified copies of charge sheet and FIR of Ex.P.98 Cr.No.101/2009 registered against A1 by Kalasipalya P.S. Ex.P.99 to The certified copies of charge sheet FIR and Ex.P.101 complaint of Cr.No.82/11 registered against A1 by Chandralayout P.S. Ex.P.102 to The certified copies of charge sheet FIR and Ex.P.104 complaint of Cr.No.104/11 registered against A1 by Kengeri P.S. Ex.P.105 The acknowledgment sent by the Director of Translation Department, Bengaluru for having received the letter dated 26.09.2012.
Ex.P.106 The letter sent by the Director of Translation Department, Bengaluru on 27.09.2012.
Ex.P.107 The chart prepared by PW-21 pertaining to
IMEI No.356229041311430 and mobile
No.9632144042 used by A2 and A3.
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Ex.P.108 The chart prepared by PW-21 pertaining to
IMEI No.356229041311430 and mobile
No.9739091622 used by A2 and A3.
Ex.P.109 and The chart prepared by PW-21 pertaining to Ex.P.110 IMEI No.352408051960720 and No.352408051960730 in connection with mobile No.9880979347 and 9035698554.
Ex.P.111 The address proof / driving license of the subscriber of SIM No.9632168474.
Ex.P.112 The call chart pertaining to mobile No.8220120820.
Ex.P.113 The call chart pertaining to mobile No.9632168474.
Ex.P.114 One more sheet with respect to call chart of mobile No.9632168474.
Ex.P.115 The call chart pertaining to mobile No.9141844490.
Ex.P.116 The call chart pertaining to mobile No.9241372337.
Ex.P.117 The call chart pertaining to mobile No.9241097534.
Ex.P.118 The CAF of the subscriber Nasir Hussain
Ex.P.118(a) Signature of PW-23.
Ex.P.119 The identity card of the subscriber Nasir
Hussain.
Ex.P.119(a) Signature of PW-23.
Ex.P.120 The certificate issued by PW-26 u/S.65B of
Indian Evidence Act.
Ex.P.120(a) Signature of PW-26.
Ex.P.121 The printouts (36 sheets) of the emails sent
and received.
Ex.P.121(a) Signature of PW-26 at the last page of
Ex.P.121.
Ex.P.122 The screenshots (20 sheets) of the computer.
Ex.P.122(a) Signature of PW-26.
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Ex.P.123 CD containing the CDR.
Ex.P.123(a) Signature of PW-26.
Ex.P.124 The CDR of mobile No.9141844490 received
from MTS for the period from 01.04.2011 to
21.05.2012.
List of MOs. Marked on behalf of the prosecution :-
M.O.1 Revolver
M.O.2 4 bullets
M.O.3 Red colour Nokia mobile phone with dual SIM
M.O.4 Black colour Nokia mobile with dual SIM
M.O.5 5 hundred rupees notes, 1 twenty rupees note,
4 ten rupees notes totally cash of Rs.560/-
M.O.6 One belt wrist watch
M.O.7 Green colour book in Urdu language
M.O.7(a) The relevant page No.100 in M.O.7.
M.O.7(b) The relevant page No.5 in M.O.7
M.O.8 Xerox copy in English language
M.O.9 Cover
M.O.10 A nut, bolt and ball in a packet
M.O.11 A plastic box containing Ammonium Nitrate
M.O.12 Sample of mud in a plastic box, collected from
the spot where detonator was exploded
M.O.13 A plastic box containing gel explosives
M.O.14 A packet containing cello-tape
M.O.15 A packet containing plastic cover
M.O.16 CD containing the video of recording voluntary
statement of accused No.1.
M.O.17 Cassette containing the video of recording
voluntary statement of accused No.1.
M.O.18 CD containing the CDR details which were
received through E-mail.
193
S.C.No.297/2013
List of witnesses examined on behalf of the defence :-
NIL List of documents marked on behalf of the defence :-
Ex.D.1 The relevant portion in Ex.P.34 given by Chief Superintendent, Central Jail, Gulbarga at the last point No.5.
Ex.D.2 The statement of PW-16 Suresh Babu regarding the mobile numbers given to him in his statement .
Ex.D.3 The relevant portion in Ex.P.34.
Ex.D.4 The tower location of Anantharamaiah compound
Mysore Road in Ex.P.45.
Ex.D.5 The letter submitted by Nodal Officer, SSTL to the
ACP, CCB, OCW, Bengaluru.
List of Material Objects (MOs) marked on behalf of the defence:-
NIL (GANGADHARA C.M.), XLIX Addl. City Civil & Sessions Judge, (Special Judge for trial of NIA Cases), (CCH-50) - Bengaluru.
*HRN/-