Punjab-Haryana High Court
Abdul Latif Adam Momin vs Union Of India Through Central Bureau Of ... on 25 February, 2014
Bench: Hemant Gupta, Fateh Deep Singh
1
CR.A.No.292-DB of 2009,
CR.A.No.632-DB of 2008 &
CR.A.No.725-DB of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: 25.02.2014
CR.A.No.292-DB of 2009
Abdul Latif Adam Momin ...Appellant
Versus
Union of India through Central Bureau of Investigation ...Respondent
Present: M/s R.S.Bains & B.S.Sodhi, Advocates, for the appellant.
M/s Sukhdeep Singh Sandhu & Y.K.Saxena, Advocates, for the
respondent.
CR.A.No.632-DB of 2008
Bhupal Man Damai @ Yusuf Nepali & another ...Appellants
Versus
State of Punjab ...Respondent
Present: Mr. N.S.Swaitch, Advocate, for the appellants.
M/s Sukhdeep Singh Sandhu & Y.K.Saxena, Advocates, for the
respondent.
CR.A.No.725-DB of 2008
State through Central Bureau of Investigation ...Appellant
Versus
Abdul Latif Adam Momin ...Respondent
Present: M/s Sukhdeep Singh Sandhu & Y.K.Saxena, Advocates, for the
appellant.
M/s R.S.Bains & B.S.Sodhi, Advocates, for the respondent.
Kumar Vimal
2014.02.25 13:46
I attest to the accuracy and
integrity of this document
Chandigarh
2
CR.A.No.292-DB of 2009,
CR.A.No.632-DB of 2008 &
CR.A.No.725-DB of 2008
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
1. This order shall dispose of aforementioned three criminal appeals directed against the judgment of conviction and order of sentence rendered by the learned Sessions Judge, Patiala on 05.02.2008 in Sessions Case No.15 of 20.07.2000, whereby accused-appellants namely Abdul Latif Adam Momin; Dilip Kumar Bhujel and Bhupal Man Damai @ Yusuf Nepali were convicted for the offences punishable under Sections 302, 307, 363, 342, 467, 506 read with Section 120 B IPC; under Section 25 of the Arms Act and under Section 4 of the Anti Hijacking Act, 1982 and sentenced to undergo for varying terms as mentioned in the order of sentence.
2. CR.A.No.292-DB of 2009 is preferred by Abdul Latif & CR.A. No.632-DB of 2008 is preferred by Dilip Kumar Bhujel and Yusuf Nepali whereas CR.A. No.725-DB of 2008 has been preferred by the Central Bureau of Investigation. All these appeals are being taken up for hearing together being directed against common judgment. For the facility of references, appellant Abdul Latif Adam Momin shall be hereinafter referred to as 'Abdul Latif', whereas appellants Bhupal Man Damai @ Yusuf Nepali and Dilip Kumar Bhujel shall be referred to as 'Yusuf Nepali' and 'Bhujel' respectively, whereas the Central Bureau of Investigation shall be referred to as 'the prosecution'. During the course of investigation, the prosecution has found that the accused were using different names at different times. Therefore, to facilitate the prosecution case, the names of the accused along Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 3 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 with names used and their relation with the Maulana Masood Azhar, the released prisoner from Indian Jail as a result of negotiations with Government of India, are as under:
Serial number as Names Used Remarks
an accused before
the trial Court
1. Ibrahim Athar @ Ahmed Ali Mohd. Ali Brother of
Shaikh @ Javed Amjad Siddiqui @ Masood
A.A.Shaikh @ Chief Azhar
2. Sunny Ahmed Qazi @ S.A.Qazi @
Burger
3. Shahid Sayeed Akhtar @ S.A.Sayeed @
Moti @ Khalid @ Doctor
4. Zahoor Ibrahim Mistry @ Z.I.Mistry @
Bhola
5. Shakir @ Rajesh Gopal Verma @
R.G.Verma @ Farooq Abdul Aziz
Siddiqui @ Shankar
6. Abdul Latif Adam Momin
7. Bhupal Man Damai @ Yusuf Nepali
8. Abdul Rauf Brother of
Masood
Azhar
9. Yusuf Azhar @ Mohd. Salim Sister's
husband of
Masood
Azhar
10. Dilip Kumar Bhujel
All the aforesaid ten accused hereinafter shall be referred to as A-1 to A-10 respectively.
3. The appellants namely Abdul Latif and Bhujel are the Indian Nationals, whereas appellant Yusuf Nepali is a national of Nepal. All other accused are the Pakistan Nationals and are Proclaimed Offenders.
4. The brief facts leading to the present appeals are that an Indian Airlines Flight No.IC-814 'Kathmandu to Delhi' with 179 passengers including 24 foreigners and 11 crew members took off from Tribhuvan International Airport, Kathmandu at 16.10 hours on 24.12.1999. When the Flight was in the range of Air Traffic Control Varanasi after being airborne for 45 minutes, the said Flight was hijacked. The hijacker, five in number, Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 4 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 directed the Pilot to take the Flight towards West later said to Lahore. PW-1 Capt. Devi Saran deposed that for want of fuel, the Aircraft cannot be flown to Lahore. The Lahore Air Traffic Control also did not permit the air-craft to land at Lahore. Since the air-craft was running short on fuel, the hijackers permitted the Flight to land at Amritsar for re-fueling at 19.00 hours. The hijackers did not permit the Pilot to stop the engine and in order to scare the crew and the authorities' inflicted passengers namely Rupin Katyal and Satnam Singh with knife blows.
5. The Air-craft took off at 19.45 hours from Amritsar without any refueling. After being airborne for 4/5 minutes, the Pilot sought permission to land at Lahore. However, initially the Air Traffic Control, Lahore did not permit the air-craft to land at Lahore, but in view of low fuel and the fact that there was no option for the Pilot, but to crash land the air-craft, Air Traffic Control, Lahore permitted the air-craft to land at Lahore for the purpose of re- fueling at 20.45 hours. The flight was again airborne and the hijackers wanted to land at Kabul. Since there was no night landing facility at Kabul, the air-craft was taken to United Arab Emirates, where it landed at 0.30 hours at Minhad Base in Dubai. At the said airport, 27 passengers were released including the dead body of Rupin Katyal and injured Satnam Singh. The Air- craft again took off at 1.30 hours from Minhad Airport and landed at Kandahar in Afghanistan at 4.00 hours.
6. The initial demand of the hijackers was to seek release of Maulana Masood Azhar (later referred to as 'Maulana') confined in Jammu Jail; 35 other militant associates, handing over of dead body of Sajjad Afghani, a close associate of Maulana, who was killed while attempting jail break and whose body stood buried at Jammu and US $ 2 Million as ransom. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 5 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 The Government of India released Maulana, Umar Sheikh and Mohd. Zargar on 31.12.1999 at about 5.30 pm in exchange of the remaining passengers and the aircraft as a result of the negotiations between Indian team and the hijackers.
7. A 'zero' FIR (Ex.PW 25/5) was lodged on 26.12.1999 at Indira Gandhi International Airport, Delhi and later on 29.12.1999 (Ex.PW 33/C) at Amritsar. It was on 30.12.1999, appellants namely Abdul Latif and Yusuf Nepali were arrested at Mumbai during the course of investigation of a bank dacoity case in respect of which a first information report was lodged on 06.10.1999. During the course of investigations, the Mumbai Police recovered Indian passports, driving licences, and the documents pertaining to hotel reservations etc. The Indian passports recovered were of hijackers, the nationals of Pakistan, though were not used in the process of hijacking of the aircraft.
8. Thereafter, the investigation of this case was entrusted to Central Bureau of Investigation on 11.01.2000, when RC-I(S) 2000 dated 11.1.200 was registered (Ex.PW120/A). On completion of the investigations, the report under Section 173 Criminal Procedure Code, 1973 (for short "the Code") was filed on 21.06.2000. The learned trial Court on 28.04.2001 framed charges against the present appellants for the offences punishable under Sections 4 and 5 of the Anti Hijacking Act, 1982 (for short 'the Act') read with Section 120-B of the IPC; and also under Sections 467, 468 and 470 IPC; offences under the Sections 25/27 of the Arms Act read with Section 120-B IPC and also for the offences punishable under Sections 363, 342, 302, 307, 326, 323, 506 read with Section 120-B IPC and convicted and sentenced as mentioned above.
Kumar Vimal2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 6 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
9. We have heard learned counsel for the parties and with their assistance gone through the voluminous records. We shall discuss the issues raised in the following manner:
I Manner of hijacking of Air Craft; causing death of passenger
- Rupin Katyal and Injuries to passenger - Satnam Singh
10. An Air Bus 300 having registration certificate (Ex.PW1/D) and certificate of Airworthiness (Ex.PW1/C) operated as IC 813 from Delhi to Kathmandu and IC 814 from Kathmandu to Delhi on 24.12.1999 commandeered by PW-1 Capt. Devi Saran. The flight took off from Tribhuvan International Airport Kathmandu at 4.10 PM with 179 passengers on Board, the names of which are mentioned in Ex.PW79/A. As per the list of passengers, there were 174 adults and 4 infants, whereas another child was in the Business class, but by mistake it could not be shown in the number of infants. As per such list, passengers namely Sheikh AA and Qazi SA, were allotted seats Nos.3A and 2B respectively in Business Class, whereas Z.I. Mistri, R.G.Verma and S.A.Sayeed were allotted seats 8C, 23G and 19G respectively in Economy Class, later found to be hijackers.
11. PW-1 Capt. Devi Saran, PW-16 Pawan Garg, PW-17 Satnam Singh and PW-87 Rajendra Dogra have deposed in respect of hijacking of the said flight at about 4.53 PM (IST), when the same was within the Indian Airspace under the control of ATC Varanasi. The said witnesses also disclosed the code names of all the five hijackers as Chief, Burger, Doctor, Bhola and Shankar. All the witnesses have deposed that hijackers namely 'Chief' had a revolver and a hand grenade in his hand; 'Burger' had a revolver and a hand grenade in his hand; 'Doctor' had a knife in his hand; 'Shankar' had a hand grenade in his hand and 'Bhola' had a revolver. They Kumar Vimal also deposed that all the hijackers kept the passengers and the crew members 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 7 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 under threat, fear and terror by forcing the passengers to keep their heads down, not to move and also blind folded some of them.
12. PW-1 Capt. Devi Saran deposed in respect of threats carried out by the hijackers, the manner of landing of aircraft at Amritsar and its take off; forced landing in Lahore, later in Minhad base in Dubai and lastly at Kandhar in Afghanistan. The detailed evidence in this respect is not being referred for the reason that no dispute was raised about such sequence of events.
13. While appearing in the witness box as PW-1, Capt. Devi Saran deposed about the landing of hijacked aircraft at Amritsar at about 7.01 PM and that hijackers forced him to stop the aircraft in the middle of runway and was not permitted to take the aircraft to Apron for getting the same refueled. The hijackers also directed him to keep the aircraft rotating on the runway and did not permit him to vacate the runway. He further deposed that ATC Control, Amritsar told him to switch off the engine of the aircraft as a precaution, so that the aircraft can be refueled, so that the bouzer (fuel tanker for refueling of an aircraft) can be sent near the aircraft. The hijackers saw 2/3 person riding on scooters on the road parallel to the runway outside the airport boundary. The hijackers apprehended that some security personnel were trying to surround them. The hijackers told him to tell the ATC Control not to play any mischief or they would start killing the people. He deposed that ATC Control sent the bouzer, but it was standing at a distance of more than 500 meter from the aircraft on the side of the runway. The hijackers got panicky apprehending that some security preparations were going on and they started threatening him again and again that he had brought down the aircraft to the ground and he would be the first person to be shot if any mischief is played with them. At about 7.35 PM, he heard some sounds of cries in the cabin of the aircraft. Then hijacker namely Burger came inside the cockpit Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 8 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 and informed the hijacker namely Chief that they had killed four persons. Then Chief told him to inform ATC Amritsar that the hijackers have killed four persons because of the delay in sending the bouzer. Thereafter, he requested the ATC again and again that hijackers had started killing the people and requested them to bring the bouzer near the aircraft. At about 7.40 PM, the Chief kept the revolver on his neck and on the head of Jagia, the flight engineer and directed them to take off without getting fuel from Amritsar. He deposed that his plea that there was no fuel in the aircraft and it was not possible to take off was not accepted by the hijackers and they told him to take off and let the aircraft crash in Pakistan territory, as they want to show to the world as to what they have done. Chief also started reverse count down from 30. He deposed that they pleaded with hijackers that ATC Amritsar would send the bouzer, but getting irritated, Burger hit Jagia with the butt of the revolver on his head saying that he was very talkative. When the countdown reached at 16, Jagia placed his hand on the mouth of Chief and requested him to stop countdown. Chief directed the other hijackers to bring four more passengers for being killed, then he requested Jagia to go to the cabin to find out how many passengers had been killed by the hijackers. But Burger caught hold of Jagia from his collar and dragged him to cabin to show what they have done. He further deposed that when Jagia came back in the cockpit, he was shivering and he asked him as to what the hijackers had done on which he told him that they have stabbed few persons and that there was blood stains on shirt of Jagia. He deposed that after taking off from Amritsar at 7.49 PM, they reached air space over Lahore within 5 minutes and contacted ATC Control, Lahore and asked for permission to land at Lahore, however, ATC Control, Lahore told them that runway was closed for them. He found that the runway lights were also switched off to deprive them from Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 9 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 landing. Finally, he came down to search for a place where the plane could be crash landed to save maximum number of passengers. At that time, both the reserve lights of aircraft fuel tank automatically went on and he started coming down. He deposed that when he came very low over Lahore City, at that time Chief and Burger were standing inside the cockpit. After knowing the height of the aircraft from the transponder, ATC Lahore immediately gave him call that runway was open to him for landing and asked him to land. After landing with great difficulty, he contacted ATC Lahore for refueling the aircraft. He deposed that when the refueling was going on, the hijackers saw two security persons on the right side of the aircraft and told him to move the aircraft immediately. He deposed that when the aircraft was moved, the nozzle of the bouzer was broken and refueling stopped. Thereafter, they again stopped the aircraft at a distance of 10/15 ft. and on the direction of the hijackers again asked for the bouzer, which came after 20 minutes. In the meantime, with the consent of hijackers, he contacted ATC Control to send the ladder to off load the injured and lady passengers, but ATC refused to do so. After refueling, the hijackers told them to take off again and when he asked them about the destination, they threatened him that it was none of his business. He deposed that at about 8.45 PM, when they were in the air after taking off from Lahore, they asked the hijackers as to where they want to go, then they directed them to fly to Kabul. After reaching near Kabul, they contacted ATC Kabul and asked for permission to land, but it was informed by them that night landing facility was not available in Kabul and told them to go somewhere else. Then the hijackers directed them to drive towards United Arab Emirates and on reaching there, they contacted UAE Control. After sometime, UAE Control permitted them to land at Minhad Base in Dubai. After landing at Minhad base in Dubai, he again asked ATC Minhad for Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 10 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 refueling of the aircraft on the direction of the hijackers, however, they told them that the bouzer for such aircraft was not with them and it has to come from Dubai. In the meantime, ATC Minhad contacted hijackers for releasing certain children, ladies and injured persons, but the hijackers insisted that the aircraft be refueled first and only thereafter the off-loading of ladies, children and injured will be made. After refueling, the hijackers agreed to off-load 27 children, ladies and injured passengers. Immediately, the doors of the aircraft were closed and the hijackers directed them to take off again. He deposed that when they asked the hijackers as to where they want to go on which Chief told them to fly towards Kabul. Thereafter, when they were flying towards Kabul and under Lahore ATC again, he was told that Kabul is closed for them because such a wide body aircraft could not land there and advised them to land at Kandhar. Thereafter, he contacted ATC Kandhar and the ATC said 'welcome to Kandhar'. The aircraft lastly landed at Kandhar at about 7.30 IST. He stopped the aircraft at the runway. He deposed that he noticed that on his left side there was an open jeep in which six persons sitting in the back of the jeep with their rocket launcher and in Kabuli dress. They came down from the jeep and stood near the aircraft and waived towards the aircraft and Chief waived to them from inside the cockpit. He deposed that Burger opened his side of window and took half of his body outside the window. He further deposed that on the direction of Chief, he along with Anil Jagia and Rajinder Kumar came out of the cockpit and sat on the vacant seats of Business Class. After 15 minutes, when they contacted ATC Kandhar, as directed by the hijackers, ATC Kandhar told them that one jeep (Pajero) of white colour was coming towards the aircraft and the aircraft should follow the jeep. The jeep led the aircraft to International Terminal. Thereafter, the hijackers again directed to leave the cockpit and took control Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 11 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 of the cockpit. He further deposed that when he came in Economy Class, he saw that all the passengers were blind folded, as their eyes were tied with a piece of cloth and they were looking towards the ground. The passengers were neither permitted to move about in the aircraft nor were they permitted to go to toilet etc. He further deposed that on his request, Chief permitted the passengers to open the cloth from their eyes and they were also permitted to go to the toilet one by one. In the evening, food packets were delivered to the passengers, but the passengers kept sitting on their seats. In the morning on 26.12.1999, the hijackers asked them to open the cargo hold, so that they can take their bag containing medicines. However, he told the hijackers that he did not know how the hold is to be opened, as it was not his duty. In the meantime, one aircraft of United Nations landed in Kandhar Airport and they started talking to the hijackers on Radio Telephone. In the evening, Chief and Burger told them to get their bags from the Cargo hold, but he showed his helplessness and went to his seat. At about 2 o'clock in the morning of 27.12.1999, he heard hammering noise, as somebody was hammering the aircraft from below. He then noticed that Jagia, who was sitting with him, was not on his seat. In the morning, on enquiry, Jagia told him that in the night at about 2.00 AM, the hijackers had taken him forcibly down to open the Cargo Hold with Taliban Engineers. The hijackers have taken out a bag which was like golf bag.
14. At about 8.00 AM on 27.12.1999, he was called by Chief for some technical help and when he proceeded towards the cockpit, he noticed that about 100 bullets, few hand grenades of different colour; different kinds of pistols with magazines were lying on the pedestal i.e. inside the cockpit, which he had not seen earlier. Thereafter, at about 3 o'clock in the evening, Burger came and informed them that one aircraft from India has landed. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 12 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 After about one hour, Burger again came and told them that negotiations have started. After hearing this news, the passengers got relaxed and could talk to each other and could move about in the aircraft also. He deposed that in the morning of 28.12.1999, the conditions of some of the passengers started worsening and some of them fell sick. Since they were three Doctors on Board, they started treating the sick passengers. He deposed that negotiations were held on 28.12.1999 and 29.12.1999 also. On 29.12.1999, since the Indian Government was not agreeing to hijackers' demand, Chief asked him to talk with the Chief Negotiator on Radio Telephone. Thereafter, he told the Indian Negotiator about the condition of the passengers and also asked him as to why the matter is not being tackled. On this, Negotiator told him that the hijackers are not disclosing their demands to them. At that stage, Chief told him that they had talked to the Negotiator for the release of Maulana for which they would release 15 women and children. About half an hour later, Chief came to him and told that they have told their total demands to the Indian Government and again went to cockpit. He also deposed about the more threats of killing the passengers; about the failure of negotiations and his talk with Indian team. He deposed that he was informed about the settlement with the hijackers by the Indian team on Radio Telephone and also assured that when three companions of the hijackers would be brought to Kandhar, the hijackers would release the passengers. It was at about 4.00 PM on 31.12.1999, an Indian aircraft landed at Kandhar and exchange started by 5.00 PM. All the hijackers went down in one jeep which was having tinted glasses. All the passengers and crew members also got down. He was the last one to come down after taking round of the aircraft. He also identified the hijackers on the basis of photographs. He also proved the photographs of Chief, Burger, Shankar, Bhola and Doctor as Exs.P1, P2, P3, P4 & P5 and his Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 13 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 signatures on their back. He also proved photographs Exs.P6 to P-18 handed over to CBI by PW-69 John Macdougall, Chief Photographer, Agence France Presse (AFP) vide recovery memo Ex.PW69/B.
15. PW-16 Pawan Garg, who was a passenger in the hijacked aircraft, also deposed about the detailed manner of hijacking. He deposed that about 10/15 minutes after the flight took off, food was served. He deposed that they had not yet started taking the food, when two hijackers came and announced that they had hijacked the plane. They directed them not to move and to hang their heads down and that if they move, they would be shot dead. He deposed that on the direction of the hijackers, airhostess tied a cloth band on his eyes and thereafter the hijackers dragged him and taken to the business class, where his hands were tied on his back with a nylon rope. After removing cloth band from his eyes, he saw that there was already six other persons, whose hands were also tied on their backs. He also deposed that he heard the talks from the cockpit, but the same were not legible. Thereafter, he heard the sound from the cockpit giving of direction to kill, on which one hijacker came with a knife and gave knife blows in his presence on the neck of Satnam Singh, whose name he came to know later on. He deposed that the name of hijacker, who has given knife blows, later on known as Doctor. After sometime again he heard a sound of 'kill him' from the cockpit upon which the same hijacker gave knife blows to another passenger, whose name he came to know as Rupin Katyal. He deposed that Rupin was also demanding water, but he was not given. He further deposed that one of the hijackers dragged the pilot in the business class and told him that if he would not take off the plane, then other would also be killed and that later on he came to know about the name of said hijacker as Burger. Another hijacker, who was known as Chief was already in the cockpit. After about Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 14 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 one hour, he was brought back to economy class by the hijackers, who told him not to tell this incident to any passenger. His hands were untied. He also gave the descriptions of all the hijackers and their code names. In his cross- examination, he stated that he identified the photographs of all the hijackers and proved the same as Ex.PW16/1 to Ex.PW16/5 and his writing on the back of the photographs. He stated that no medical aid was given to Satnam Singh and Rupin Katyal in his presence after stabbing.
16. PW-17 Satnam Singh - the injured person, who was also stabbed by the hijackers at Amritsar, deposed that he was accompanied by his wife Meena and daughter Simaranjit Kaur. His friend Satish Kumar and his wife Anita were also with them. They had been given seat Nos.25A and 25B in the economy class, whereas his friend and his wife were given seats after them. After giving the manner of hijacking, he deposed that the plane landed at one place, where the fuel was being asked, but he did not know the place. The hijackers told that if the fuel was not given then they will start killing passengers. Thereafter, he heard the sound from the front side to kill upon which one hijacker, who was having knife in his hand, had caught hold his hair and gave him 3/4 knife blows on his neck from front side. The hijacker, who gave him knife blows, was called as Doctor. He deposed that on the direction of the hijacker, one lady Doctor came and dealt with his injuries and dressed it. Rupin Katyal, who was crying, became silent gradually. He deposed that 24/25 including him were off loaded in Dubai, whereas Rupin Katyal was made to lie near the stair case of the plane. He also deposed with the regard to the medical treatment given to him at Dubai. Thereafter, he, his wife and daughter were brought back to India along with the team of Doctors, who had gone from India. He also gave the description of all the hijackers. He identified the photographs of hijackers namely Doctor and Burger and Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 15 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 proved the same as Exs.PW17/1 and PW17/2 respectively. He deposed that he remain admitted in Sumit Clinic, Delhi from 25.12.1999 to 27.12.1999.
17. PW-87 Rajender Dogra is another passenger, who was allotted seat No.15-F in the hijacked aircraft, whereas his companions namely Sandeep Sethi and Jiwan Bhatt were allotted seat Nos.15-D and 15-E. He also deposed that after hijacking, one hijacker took him in the business class and tied his hands on his back with a plastic rope. He also deposed with regard to the giving of knife blows on the person of Satnam Singh and Rupin Katyal as well as gave descriptions of all the hijackers.
18. The post-mortem on the dead body of Rupin Katyal was conducted by PW-34 Dr. Alexender F. Khakha, Specialist and Head of the Department, Department of Forensics Medicines, Safdarjung Hospital, New Delhi, who was called from his home in the night on 25.12.1999 for the said purpose. He deposed that he noticed 29 external injuries on the dead body of Rupin Katyal. He also proved the Post Mortem Report Ex.PW25/E. He deposed that the maximum injuries were on the neck and injury No.29 was caused by blunt weapon, whereas all other injuries were caused by sharp edged weapon. The weapon used for causing injuries No.1 to 28 was having single side edged sharp weapon. Injuries No.7, 8, 9, 15, 16, 17, 18 & 19 were sufficient to cause death in the ordinary course of nature both individually and collectively.
19. PW-24 Dr. Tarun Gupta, who medico legally examined Satnam Singh, has brought the original record from Sumit Clinic regarding the treatment of Satnam Singh, who was referred by the Indian Airlines. He deposed that Satnam Singh was admitted on 25.12.1999 at 11.30 PM and was discharged on 27.12.1999 at 10.00 AM. He proved the admission and discharge record as Ex.PW24/A. He deposed that there were four cuts near Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 16 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the chin, one in the left mandible area, one in the left sub mandible area and one over the route of the neck anteriorly, which apparently are on vital parts of his body and that all these wounds were already repaired at Rashid Hospital, Dubai, which was written in the note of Dr. A.K.Diwan. He also identified the signatures of Dr. A.K.Diwan on the reference slip Ex.PW24/G. In his cross-examination by Shri H.V.Rai, learned counsel representing Bhupal Man Damai, he stated that he does not remember whether the injuries on the person of Satnam Singh were dangerous to life or not. He further stated that all the injuries were repaired before the patient came to him.
20. It may be noticed that after release of the passengers as hostages on 31.12.1999, 145 passengers and 11 crew members were brought from Kandhar to India by special flight and they reached in the evening on the same day, whereas one passenger namely Anil Kumar Khurana, who was released earlier due to sickness, reached Delhi through Islamabad on 30.12.1999 vide disembarkation card Ex.P71/A.
21. From the above evidence, we find that the prosecution has been able to prove the hijacking of the aircraft, the fear and threats meted out to the passengers and crew members and also the injuries on the person of Rupin Katyal, which led to his death were inflicted by the hijackers with knowledge & intention to cause such injuries, which are likely to cause death as well as to scare the passengers, authorities and the airlines staff to force them to accede to their demands and that on the person of Satnam Singh. Such eye- witness account also proves the identity of all the hijackers as Chief, Burger, Shankar, Bhola and Doctor.
II Prosecution Story of Conspiracy
22. As per the prosecution, the conspiracy to hijack an Indian Airlines flight started somewhere in July-August, 1998 when Yusuf Azhar Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 17 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 (A-9), brother-in-law of Maulana met the appellant Abdul Latif, to make efforts for the release of Maulana. It was in September, 1998, Yusuf Azhar, sought the help of the appellant to obtain visa for him for Bangladesh on an Indian passport in the name of Mohd. Salim Mohd. Karim. In February, 1999, Yusuf Azhar asked the appellant to arrange a flat on rent. Appellant- Abdul Latif, arranged a flat in Madhav Building in Goregaon West, in the fictitious name of Javed A. Siddiqui. In April, 1999, Yusuf Azhar, reached Bombay along with Shankar (A-5). Both of them stayed in such flat at Madhav Building. Yusuf Azhar then gave photographs of Ibrahim Athar (A-
1) and Shankar (A-5) to obtain passport for them. Appellant-Abdul Latif, got in touch with Seven Travels for arranging their passports. In the month of May-June, 1999, Akhtar (A-3), Asraf and Yusuf Azhar visited Jammu to facilitate escape of Maulana through a tunnel from Jammu Jail. But in attempt Sajid Afgani, in custody in Jammu Jail was killed but two of the militants, who were in Jammu i.e. Akhtar and Yusuf Azhar were caught by the Jammu Police while roaming near jail on suspicion. The Manager of the Hotel, where they were staying was impressed upon to ensure their release. It was in June, 1999, Yusuf Azhar told Abdul Latif to arrange for another flat on rent in Bombay. At his asking, a flat in Golden Soil Apartments was arranged again in the fictitious name of Javed A. Siddiqui. Abdul Latif along with Yusuf Ahzar started residing in this flat. Yusuf Azhar gave passport in the name of Mohd. Salim Mohd. Kalim, bearing his photograph to Abdul Latif, the appellant, with instructions to go to Delhi to obtain visa for Bangladesh for both of them. The appellant Abdul Latif took the passport of Yusuf Azhar and his own passport which was in the name of Vipin Bharat Desai. In Delhi, the appellant stayed in Nizami Hotel, Nizamuddin, Delhi. The appellant Abdul Latif obtained the visa from Bangladesh Embassy. After obtaining the visa, Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 18 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the appellant Abdul Latif went to Mumbai by Golden Temple Mail train. In July, 1999, Abdul Latif and Yusuf Azhar visited Calcutta. They stayed in Hotel Aminia at Jakaria Street. After staying in hotel for 1-2 days, they travelled by Car to Dinapur Border. After crossing the border, they travelled by bus to Dhaka. Thereafter, Yusuf Azhar went to Karachi and the appellant Abdul Latif was informed that Abdul Rauf (A-8), younger brother of Maulana, would be reaching Dhaka via Kathmandu, where the appellant should receive him. Abdul Rauf discussed the detailed plan made by Harkat-
Ul-Mujahiddin for release of Maulana from Jail. At the same time, another brother of Maulana, named, Ibrahim Athar (A-1) was also making efforts for the release of Maulana in Kathmandu. Shahid Akhtar (A-3) & Shakir @ Rajesh Gopal Verma (A-5) reached Dhaka from Bombay and then left for Karachi. Abdul Rauf arranged for the stay of these persons in Dhaka near the Cantonment area i.e. near the house of former President of Bangladesh, Sheikh Mujibur Rehman, in which Abdul Latif appellant, Yusuf Azhar (A-9), Sunny Ahmed Qazi (A-2) and Shakir @ Rajesh Gopal Verma @ R.G. Verma (A-5) stayed. After 3-4 days Mistri Jahoor Ibrahim (A-4) also arrived in the flat. After another 3-4 days, Shahid Akhtar (A-3) also reached there. Later after 2/3 day Ibrahim Athar also joined. It was in September, 1999, a meeting of seven persons was arranged, all the accused in the present trial excluding Bhupal Man Damai @ Yusuf Nepali (A-7), Yusuf Azhar (A-9) & Dilip Kumar Bhujel (A-10) were present. Ibrahim Athar (A-1) told them that he has been working on this plan for 1-1/2 years in Kathmandu as the Indian Airlines flight can be easily hijacked. He also told him that he is working for arrangements for weapons from Kathmandu itself. At the asking of Ibrahim Athar (A-1), Abdul Latif was to procure Indian documents for the Pakistani militants. Ibhrahim Athar (A-1) asked the appellant to obtain the Indian Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 19 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 documents like Driving Licences and passports. Ibrahim Athar told him that Indian Airlines flight will be hijacked from Kathmandu and will be taken to Afghanistan. He also told him that he had talked to the Minister in Taliban, who assured cooperation in this regard.
23. It was on 11.09.1999, Abdul Latif came to India with Qazi Sunny Ahmed (A-2). Firstly, they went to Siliguri and then reached Bombay via Patna. Qazi Sunny Ahmed stayed in Golden Soil Apartments. Abdul Latif contacted Pragati Motor Driving School for obtaining driving licence for Qazi Sunny Ahmed. He also contacted Seven Travels for obtaining passports for Qazi Sunny Ahmed. Abdul Latif obtained prepaid SIM card for his mobile, the number of which is 9820110317. The said mobile was used to remain in touch with Abdul Rauf. In October, 1999, Abdul Rauf sent a message through mobile to Abdul Latif that he was sending two more Pakistani militants in Malda Town of West Bengal and the appellant should send someone to receive the said militants. The appellant arranged Chandan Rai (PW-7), a waiter in a Restaurant owned by his step brother. On reaching Bombay, both of them stayed in a flat in Golden Soil Apartment. Shakir @ Rajesh Gopal Verma (A-5) contacted Silver Motor Driving School for his driving licence and Abdul Latif contacted seven travels for getting passport for Shahid Sayeed Akhtar (A-3). Another militant Zahoor Ibrahim Mistri (A-
4) came subsequently as informed by Abdul Rauf. Sunny Ahmed Qazi (A-2) has taken Zahoor Ibrahim Mistri (A-4) to Pragati Motor Driving School for obtaining the driving licence for him. Abdul Latif has given photographs of Zahoor Ibrahim Mistri (A-4) to Suresh of Seven Travels for preparation of passports.
24. In November, 1999 Abdul Latif reached Kathmandu with Shahid Sayeed Akhtar (A-3) on an Indian Airlines flight. They stayed in Aminia Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 20 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Hotel, Calcutta. They boarded a train from Sealdah Railway Station for Jalpaiguri, West Bengal and reached Kathmandu on 04.11.1999 by road and stayed in Imperial Hotel, Kathmandu till 10th November. Shahid Sayeed Akhtar (A-3) called for his licence through courier to Kathmandu prepared by Vaishali Driving School with the assistance of Abdul Latif. The appellant Abdul Latif stayed in Tibet Guest House in Thamel Area in Kathmandu. Shahid Sayeed Akhtar (A-3) was in touch with Ibrahim Athar (A-1) in Pakistan. Ibrahim Athar (A-1) told Shahid Sayeed Akhtar (A-3) that he would reach Kathmandu on 19.11.1999. Abdul Latif and Shahid Sayeed Akhtar (A-3) received Ibrahim Athar (A-1) and all three stayed at Tibet Guest House in Kathamandu. Shahid Sayeed Akhtar (A-3) brought weapons from his room and showed the same to the appellant and other accused. These weapons contained three revolvers; three hand grenades and number of cartridges. Such weapons were to be used in hijacking of Indian Airlines flight. On 23.11.1999, they checked out of the New Guest House and took a room in Hotel Tuluchi in Thamel area of Kathmandu. Ibrahim Athar (A-1) stayed with Abdul Latif till 25.11.1999. Appellant Abdul Latif came to Bombay alone on a Royal Nepal Airlines flight on 25.11.1999.
25. Abdul Latif obtained a driving licence for Ibrahim Athar (A-1) from Vaishali Driving School, photograph for which was supplied by A-5. On receiving a message from Ibrahim Athar (A-1) Abdul Latif took the documents along with Zahoor Ibrahim Mistri (A-4) to Kathmandu. Abdul Latif firstly went to Gorakhpur from Bombay by train and then reached Kathmandu. Abdul Latif stayed in Swoniga Hotel, Kathmandu under the name of Vijay Gupta. On 10/12.12.1999, Sunny Ahmed Qazi (A-2) and Zahoor Ibrahim Mistri (A-4) also reached Kathmandu and stayed in Hotel Imperial. They brought the driving licence of Ibrahim Athar. The said driving Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 21 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 licence was in the name of Ahmad Ali Mohammad Ali Sheikh. On 11.12.1999, Abdul Latif and Shakir @ Rajesh Gopal Verma (A-5) stayed in Hotel Surya in the name of Gupta. On 13.12.1999, Abdul Latif along with Shakir @ Rajesh Gopal Verma (A-5), Simmu Aj,ed Qazo (A-2) and Zahoor Ibrahim Mistri (A-4) came to Hotel Pisang in Kathmandu. Abdul Latif checked in as Mr. Gupta of Bombay. In a meeting called by Ibrahim Athar (A-1) at Kathmandu Zoo on 13.12.1999, all the accused except Bhupal Man Damai @ Yusuf Nepali (A-7), Yusuf Azhar (A-9) & Dilip Kumar Bhujel (A-
10) were present. In that meeting, final touches were given to the plan of the hijacking of the Indian Airlines Flight and that Abdul Latif was not to remain present during hijacking. The appellant was instructed to return to Bombay and remain in touch with Abdul Rauf (A-8) in Karachi. The code names were given to all the five hijackers i.e. Chief to Ibrahim Athar (A-1), Burger to Sunny Ahmed Qazi (A-2), Doctor to Shahid Sayeed Akhtar (A-3), Shankar to Shakir @ Rajesh Gopal Verma (A-5) and Bhola to Zahoor Ibrahim Mistri (A-
4). Ibrahim Athar (A-1) instructed Abdul Latif to obtain confirmed air tickets for them for any date from 20.12.1999 to 30.12.1999 of Indian Airlines flight from Kathmandu to Delhi. The appellant was further instructed to purchase the air tickets for himself one week before the date for which the tickets for the aforesaid five persons were to be purchased. It was discussed in the meeting the manner to take the weapons inside the aircraft. Ibrahim Athar chose three persons for carrying weapons inside the Aircraft which included himself, Qazi Sunni Ahmed and Sayeed Akhtar. It was decided that anyone of the three persons would conceal the weapons under his clothes and would go inside the Airport in advance and thereafter give signal to the others. It was planned that if Ibrahim Athar managed to pass the immigration and security check at the airport, he would inform the other militants in the hotel asking Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 22 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 them to come to the Airport and that other militants would join him in the lounge of the Airport. Thereafter, Abdul Latif purchased business class ticket in the name of Ahmed Ali Mohd Ali Sheikh (A-1) from Himalayan Travels, Kathmandu for 27.12.1999. He went to Everest Tours and Travels to purchase the Economic Class tickets for the remaining militants for 27.12.1999. The appellant was informed by the travel agency that the confirmed tickets for 27.12.1999 were not available, but were available for 24.12.1999. He cancelled the business class tickets of A-1 for 27.12.1999 and purchased ticket for 24.12.1999. He took tickets of Qazi Sunny Ahmed from Gorkha Travels. He also purchased three tickets from Everest Tours & Travels, Kathmandu for Bhola, Doctor and Burger. All these tickets were handed over to A-1 in Hotel Pisang. Abdul Latif took air tickets for himself on 17.12.1999 and returned to Delhi where he stayed in Hotel Nizami at Nizamuddin, Delhi. He took Golden Temple train from Delhi to Bombay on 18.12.1999 and reached Bombay on 19.12.1999. After reaching Bombay, Abdul Latif contacted Abdul Rauf in Karachi. Abdul Rauf remained in touch with Abdul Latif till his arrest on 30.12.1999.
26. The other accused in Kathmandu remained in touch with Abdul Latif till 24.12.1999. On 23.12.1999, the appellant purchased another prepaid SIM card for his mobile phone bearing No.9820110945. He received a message on 24.12.1999 from A-3 that they were sending one Yusuf Nepali to India and that Abdul Latif should make arrangements for their stay at Golden Soil Apartment. He was also instructed to prepare passports for them and to obtain visas for Bangladesh. On 24.12.1999, he received a phone call from A- 2 that A-1 has passed through the metal detector inside the Airport and that they are leaving the hotel. Abdul Latif informed Abdul Rauf in Karachi. Abdul Latif received a message at 2.30 p.m. from A-4 that the flight is Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 23 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 delayed by two hours. At about 5.45 p.m., he heard news on the Television that the Indian Airlines flight IC-814 has been hijacked. He conveyed this to Abdul Rauf in Karachi. On 25.12.1999, Yusuf Nepali told Abdul Latif on telephone that he was coming to Bombay from Gorakhpur on Khushinagar Express. Abdul Latif received a telephonic call from Abdul Rauf that he will not be available for 2/3 days as he is going to Kandahar as he wanted to help the hijackers, who were inside the aircraft. On 27.12.1999, Abdul Rauf informed him that he could not go to Kandahar, but he is sending Rs.1 lac for the family of Yusuf Nepali, through Hawala. On 29.12.1999, A-9 gave mobile number of Anjum Mir, representative of BBC in London to record a threat that if the Indian Government did not concede to the demand of the hijackers, they will kill the passengers and blow up the Aircraft. Abdul Latif could not contact Anjum Mir, but got recorded a threat on BBC. Abdul Latif was arrested on 30.12.1999 at 11.00 a.m. The prosecution evidence as to what extent, they have been able to lead evidence shall be examined in the later part of the judgment. The learned Sessions Judge has convicted Abdul Latif, Dilip Kumar Bhujel and Bhupal Man Damai @ Yusuf Nepali for the offences punishable under Sections 302, 307, 363, 342, 467, 506 read with Section 120 B IPC; under Section 25 of the Arms Act and under Section 4 of the Anti Hijacking Act, 1982 and sentenced them to life returning a finding that each of these accused actively participated in fraudulently, fabricating illegally false documents under assumed names by not only misleading their identities at various stages, by impersonating in furtherance of this criminal conspiracy, so hatched by them each fully aware of what was the sinister design that is sought to be achieved by each of them.
27. Mr. Bains, learned counsel for the appellants-accused has argued that the accused were denied legal assistance at the time of remand Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 24 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 proceedings including at the time of recording of confessional statement and that the accused were denied opportunity of fair trial. We shall discuss such arguments hereinafter.
III. Whether the denial of Legal Assistance at the pre trial stage vitiates the trial ?
28. Learned counsel for the appellants vehemently argued that the appellants were not provided legal assistance at the time of police/judicial remand or at the time of recording of confession by the Magistrates either at Patiala by PW-9 A.S.Virk or at New Delhi by PW-3 V.K.Bansal. Thus, the right of legal assistance guaranteed under Article 21 of the Constitution stands violated. It is contended that denial of legal aid at that time contravenes the judgment of the Supreme Court reported as Smt. Nandini Satpathy Vs. P.L.Dani & another AIR 1978 SC 1025. He also relies upon an order passed by the Supreme Court in Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi (2012) 2 SCC 584.
29. Both the judgments relied upon by learned counsel for the appellants in Smt. Nandini Satpathy's case (supra) and Mohd. Hussain @ Julfikar Ali's case (supra) are not applicable to the facts of the present case. In Nandini Satpathy's case (supra), it has been held that if an accused asks for lawyer's assistance at the stage of interrogation, it should be granted before commencing or continuing with the questioning, but it was also held that police must not secure the services of a lawyer. That will lead to 'police- station lawyer' system, an abuse which breeds other vices. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 25 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
30. In Mohd. Hussain @ Jalfikar Ali's case (supra), the Supreme Court has found that the absence of legal aid counsel before the trial Court for the purpose of cross-examination results into denial of fair opportunity. There was difference of opinion after giving such finding in respect of the consequences of denial of fair trial. The three Judges' Bench in its order dated 31.08.2012 reported as Mohd. Hussain @ Julfikar Ali Vs. State (Government of NCT of Delhi) (2012) 9 SCC 408, ordered fresh trial keeping in view the gravity of offence and the criminality with which the appellant was charged and impact of crime on the society.
31. We find that reliance of counsel for the appellants on the said judgment is untenable. Firstly, it is a case of denial of legal assistance during trial. A finding was recorded that the accused was not asked; as to whether he was able to engage a counsel or wishes to have a counsel appointed. In these circumstances, a finding was returned that the accused was not provided Legal Aid Counsel leading to Nil cross-examination to large number of the witnesses. The Supreme Court found that since the trial Court did not appoint any counsel, it resulted into denial of due process of law. The principles laid down in the said judgment have no application to the facts of the present case, while considering the argument that there was denial of fair trial for not providing the legal aid during the pre-trial stage. The said Judgment shall be examined while examining another argument relating to fair trial for not providing legal aid counsel during trial.
32. In fact, it was in Hussainara Khatoon (IV) Vs. Home Secy., State of Bihar, (1980) 1 SCC 98, the Supreme Court contemplated providing of free legal service to an accused of an offence, as an essential ingredient of reasonable, fair and just procedure. In Khatri (2) Vs. State of Bihar, (1981) 1 Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 26 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 SCC 627, the Court found the necessity of providing legal assistance at the stage of remand as part of right of life contained in Article 21 of the Constitution. The Court observed:
"It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police or jail custody. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the Magistrate as also when he is remanded from time to time".
33. The consequence of not providing legal aid counsel during pre- trial stage has been examined in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600. The Supreme Court was inter-alia examining the provisions of Prevention of Terrorism Act, 2002. Section 52 of the said Act mandates the Police Officer to inform the person arrested of his right to consult legal practitioner soon after he is brought to the Police station, whereas Section 32 of the said Act empowers a police officer to record a confessional statement. The argument examined was; whether non- compliance of the obligation cast on a Police Officer under Section 52 of the Act has a bearing on the voluntariness and admissibility of the confession recorded in the absence of any legal assistance recorded in terms of Section 32 of the said Act. The Supreme Court held that the violation of "procedural safeguards" under Section 52 does not stand on the same footing as the violation of the requirements of Section 32 relating to recording of confession by a police officer. The Court held that the safeguards in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 27 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 safeguards of the same magnitude. Though, in the aforesaid case, as a matter of fact, the Court found the confessional statement not properly recorded. The Supreme Court held to the following effect:
"164. In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-sections (2) to (5) of Section 32. As already observed, sub-sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of the confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-sections (2) to (4) of Section 52 will be one of the relevant factors that would weigh with the court to act upon or discard the confession. To this extent they play a role vis-à-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-sections (2) to (5) of Section
32."
34. In Mohd. Ajmal Amir Kasab Vs. State of Maharashtra, (2012) 9 SCC 1, the Supreme Court was examining the question of providing legal assistance to an accused at pre trial stage. The Court held that legal aid can be provided to an accused who is willing to accept the same and not to an unwilling person. The Court observed that every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged Kumar Vimal to represent him during the entire course of the trial. It is the constitutional 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 28 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 duty of the court to provide him with a lawyer before commencing the trial. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. The Court observed:
"476. At this stage the question arises, what would be the legal consequence of failure to provide legal aid to an indigent who is not in a position, on account of indigence or any other similar reasons, to engage a lawyer of his own choice?
xxx xxx xxx
478. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent Magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case".
35. In view of the aforesaid judgments, though the providing of legal assistance to an accused of an offence has been considered to be part of the constitutional guarantee, but it has been held that consequences of not providing such legal assistance at the stage of pre trial proceedings do not vitiate the trial. It has been held that the Magistrate, who records a statement of an accused under Section 164 Cr.P.C., proceeds after recording his satisfaction that the accused is not under any outside influence, which impinges upon his discretion in submitting confessional statement. The presence of a lawyer at this stage, so as to tutor him or to create such a fear in his mind not to submit confessional statement, is not warranted by law, as has been laid down in Mohd. Ajmal Amir Kasab's case (supra), wherein it has been observed that the consequences of not providing a legal aid at the pre- trial stage may make the delinquent Magistrate liable to disciplinary proceedings or a right to claim compensation against the State, but it will not Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 29 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 vitiate the trial unless it is shown to have caused material prejudice to the accused in the course of the trial.
36. Thus, we find that lack of providing legal assistance to the accused at the pre-trial stage does not vitiate trial.
IV. Whether the trial stands vitiated on account of lack of legal assistance during trial?
37. Learned counsel for the appellants faintly argued that large number of witnesses have not been allowed to be cross-examined by the defence out of 120 witnesses examined by the prosecution. It was stated that such witnesses were not cross-examined for the reason that the trial was ordered to be conducted at Central Jail, Patiala itself and that the learned trial Court conducted the trial on day-to-day basis, which interfered with the professional work of the counsel engaged by the accused. It is, thus, sought to be contended that denial of opportunity of cross-examination is denial of fair trial and, therefore, the entire trial is vitiated. It is argued that even if the counsel for the accused were not present for the purpose of cross-examination of the prosecution evidence, the Court in order to conduct trial should have provided legal aid to the accused, so as to comply with the mandate of Sections 304 & 309 of the Code of Criminal Procedure, 1973.
38. On the other hand, learned counsel for the prosecution argued that all the accused/ appellants have challenged the convening of the Court in the Central Jail, Patiala by way of CWP No.10798 of 2002 titled 'Abdul Latif & others Vs. Central Bureau of Investigation & another'. The said writ petition was dismissed on 24.04.2003 noticing the fact that the counsel for the appellants has assured that they will appear in the Court and shall also extend Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 30 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 full cooperation for early conclusion of the trial. The Bench observed to the following effect:
".....Shri Navkiran Singh, learned counsel on receipt of instructions from the counsel representing the accused in the trial court, stated that they will appear in the court and extend full co-operation for the early conclusion of the trial. We are informed that the trial Judge commences the proceedings in the Central Jail at 12.00 noon by which time counsel for the petitioners are free from their miscellaneous work in the courts and are appearing before the Designated Judge in the Central Jail. There should, thus, be no grievance of the petitioners left in this regard. The arrangement will continue notwithstanding the dismissal of this writ petition."
39. Mr. Sandhu also brought to our notice an order passed in CR.R.No.2151 of 2003 preferred against an order dated 09.08.2003 rejecting an application dated 24.03.2003 filed by all the accused-appellants under Sections 311, 279 & 309 Cr.P.C. for recalling the witnesses for cross- examination. The revision was preferred by Abdul Latif, which was decided on 23.04.2004. Accused Yusuf Nepali and Bhujel have accepted the order passed by the learned trial court. Such application was filed when their writ petition challenging the convening of Court in jail was pending before this Court. It was averred that the defence lawyers absented in protest against the mode adopted of the conduct of the trial. It was also averred in the application that the defence lawyers have given their appearance as per the orders passed by the High Court (dated 13.03.2003 passed in the writ petition) and sought adjustment in time convenient to the defence lawyers keeping into consideration their busy schedule of cases in other courts also. It was also averred that Abdul Latif is being represented by Shri Majid Memon, Advocate of Mumbai apart from Shri B.S.Sodhi, Advocate. It was also averred that Shri Memon had informed Shri Sodhi that he is extremely busy in many criminal cases already fixed, so on such a short notice, the defence Kumar Vimal for Abdul Latif cannot be made available. The said application was dismissed 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 31 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 by the learned trial Court on 09.08.2003. In the revision petition against the said order filed only by Abdul Latif, this Court noticed that about 87 witnesses have been examined from 23.04.2002 to 13.03.2003 i.e. before the decision of the writ petition. The learned Single Judge also noticed the interim orders passed by the learned trial Court to return the following finding:
"A perusal of these orders shows that the Court was prepared to accommodate the counsel for the petitioner in such a manner as their presence in the Central Jail, Patiala in connection with the trial of the petitioner, did not prejudicely affect their appearance in other cases that were fixed for a particular date. It was with this view in mind that the Division Bench in Civil Writ Petition No.10798 of 2002 had passed the order directing the District Judge to fix the trial after lunch. However, for reasons best known to them, the parties in consultation with their counsel tried to scuttle the progress of the trial as is evident from the fact that even the offer of the trial Court to provide legal aid at State expense, in case the counsel were not inclined to appear in Court, was turned out. The petitioner has intentionally declined to avail the opportunity of cross-examination that was being offered to him time and again. It does not lie in his mouth now to move an application for recalling for cross-examination of those witnesses whose statements on oath have already been recorded and in spite of opportunities being given him time and again, he has not cared to cross- examine them."
40. This Court further held that Section 311 of the Code was not meant to encourage a litigant to delay the trial in the hope of his well-wishers being able to win over or otherwise pressurize the witnesses in to not supporting the statements, which have been made by them on oath before the Court. In case, such an application was to be allowed and encouraged, it would always be possible for persons having at their disposal money and/or muscle power to circumvent the process of law and defeat the interest of justice. The Court also noticed that having failed to get favourable order in Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 32 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the writ petition; the judicial propriety would stand in allowing the appellant to seek reconsideration of the judgment passed by the Division Bench.
41. In the light of such background, we need to examine the arguments raised. The relevant Section 309 of the Code reads as under:
"309. Power to postpone or adjourn proceedings - (1) In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
*[(2) xx xx xx
Provided also that -
(a) No adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party;
(b) The fact that the pleader of a party is engaged in another Court, shall not be aground for adjournment;
(c) Where a witness is present in Court, but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] xxx xxx"
*Inserted Vide Act No.5 of 2009.
42. A perusal of the record shows that the appellants-accused have cross-examined the prosecution witnesses from PW-1 to PW-20 except PW- 14 & PW-15, whose cross-examination was deferred, as the counsel for the defence were busy on that day in bar elections. Three witnesses namely Rajesh Poddar, Salim Imtiyaz Ahmed and Krishnan Ramsubbu Yadav, all residents of Mumbai, were examined as PW-21, PW-22 & PW-23 Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 33 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 respectively on 22.5.2002 after the order for conducting trial in Central Jail was passed on 23.04.2002. No cross-examination was conducted on such witnesses. The reasons recorded by the learned trial Court while giving opportunity to cross-examine the prosecution witness on the said day, inter alia, are that Mr. B.S.Sodhi, Advocate refused to come to the court, even when he was informed. The Court made all the three accused to talk to their counsel on telephone and that Mr. Sodhi talked to Abdul Latif-accused in Central Jail, Patiala over the telephone from his office. But when till 4.00 PM, Sh. B.S.Sodhi, Advocate or Mr. H.V.Rai, Advocate did not turn up, the Court recorded that the counsel are intentionally avoiding to appear in the court with a view to delay the case.
43. The prosecution examined PW-24 Dr. Tarun Gupta on 23.05.2002. The said witness was cross-examined by the counsel for the accused-appellants Yusuf Nepali and Bhujel on the same day, but not by the counsel for the accused Abdul Latif. This led the court to record that the counsel for the accused are intentionally absenting to cause delay to the disposal of the case.
44. While examining PW-28 on 29.5.2002, Sh. B.S.Sodhi, Advocate for Abdul Latif - accused and Sh. H.V.Rai, counsel for other two accused appeared and were requested to assist the court, but no cross-examination was conducted. Still later, while examining PW-33 on 12.07.2002, the Court recorded that the accused were asked to cross-examine the witness, but they submitted that their counsel have not come present. Offer was made to them that the court can engage the counsel for them, but they declined by saying that since they have already engaged a counsel, they will not avail the services of the lawyer appointed by the court. They were asked to give it in Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 34 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 writing, but they declined to give the same. It is in these circumstances, the order of the Court came to be passed in view of the conduct of the Counsel for the accused refusing to cross-examination the witnesses. It may be noticed that identical orders as in respect of cross-examination of PW-33 were later on passed in respect of the each of the witness examined by the prosecution while granting opportunity to cross-examine to the accused.
45. We find that the argument in respect of denial of fair trial is untenable, both on the question of law and on facts. The order of holding trial in jail was challenged by the appellants by way of a writ petition. The writ Court passed an order on 13.03.2003 directing the designated Judge to start with the court proceedings in the Central Jail at 12.00 noon sharp every day of the week during which the trial is conducted. The accused have not made any grievance in respect of the recording of the cross-examination of the witnesses already recorded. The counsel for the appellants have assured full co-operation for early conclusion of the trial.
46. Thereafter, the appellants filed an application before the learned trial Court to seek re-examination of the witnesses. Such application was declined by the trial Court on 09.08.2003. The revision against the said order stands dismissed on 23.04.2004. Having remained unsuccessful at that stage, the appellants cannot be permitted to re-agitate the same issue in the present appeal, when the orders passed have attained finality. It is not the case of the appellants that they had no means to engage a counsel. In fact, they are represented by a counsel of their own choice at all stages of proceedings i.e. before the learned trial Court as well as when they challenged the orders passed by the learned trial Court before this Court firstly in a writ petition and later in criminal revision. In fact, at the initial stage of the trial, Shri Majid Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 35 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Memon, Advocate from Mumbai had put in appearance before the trial court on behalf of Abdul Latif and conducted cross examination of the few witnesses as well. They were represented by the local counsel as well as a counsel from Mumbai, who has conducted cross-examination on PW-1 Capt. Devi Saran. The Legal Aid Counsel is to be provided to an accused, who is not represented and not to an accused whose counsel chooses not to appear before the Court.
47. In fact, the conduct of the counsel for the appellants is that of non-cooperation to delay the trial intentionally by not appearing before the Court. Once the counsel has agreed to appear for an accused, it is his duty to represent him to the best of his ability. The counsel for the appellants has mis- conducted themselves in conduct of trial, when they refuse to appear before the Court. The accused have also consented to such conduct or misconduct. The accused were repeatedly being offered the services of the Legal Aid Counsel, but the categorical answer of the accused was that they would not like such assistance. The Court has done what ever could be done in such circumstances. The appellants were represented by their lawyers, but the Advocates retained by the appellants refuse to appear and cross-examine the prosecution witnesses and on the other hand, accused refused the offer to be represented by a Legal Aid Counsel. Such conduct of the accused or their counsel cannot be countenanced to defeat the due process of law. Such conduct was intentional with a view to scuttle trial and to put the Court to ransom. Fortunately, the Court has not fell prey to such tactics of the accused or their counsel with a view to conduct trial of the present case without delay.
48. Rule 12 of Section II (Part VI, Chapter II) of the Standards of Professional Conduct & Etiquette of the Bar Council of India Rules, provide Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 36 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 that an Advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notices are given to the client. The counsels for the appellants have neither withdrawn from the engagement nor have conducted cross-examinations on the prosecution witnesses to safeguard the interest of their clients. The Advocates have failed to discharge the obligation towards his clients, as contained in Clause 15 of Section II of the said Rules, when it contemplated that it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself. On the other hand, the appellants themselves have made a statement that they will not accept the services of any other Advocate. The counsels for the appellants have intentionally abstained from the trial Court; therefore, the appellants and/or their counsel cannot be permitted to scuttle the process and also to raise an argument of denial of fair trial.
49. In fact, it was in Hussainara Khatoon's case (Supra), the Supreme Court while considering the right of legal assistance to an accused of an offence, observed that legal assistance can be provided, if the accused person does not object to the provision of such lawyer. It was observed as under:
"The right to free legal services is, therefore, clearly an essential ingredient of "reasonable, fair and just", procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer."(Emphasis Supplied)
50. In Mohd. Ajmal Amir Kasab's case (supra), the Supreme Court, Kumar Vimal while examining the question of providing legal assistance to an accused at 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 37 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 trial stage, observed that legal aid can be provided to an accused who is willing to accept the same and not to an unwilling person. The Court observed:
"477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, ......." (...Emphasis Supplied)
51. The Code of Criminal Procedure has also been amended vide Act No.5 of 2009 when a proviso to sub-section (2) was inserted in Section 309 of the Code. The provision so inserted provides that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The counsel for the appellants had a grievance that their other professional work will suffer while conducting trial of the present case. The fact that the counsels for the appellants are busy in other Courts is not a ground for adjourning trial. The Court may, if thinks fit, record the statement of the witnesses even though the pleader of a party is engaged in another Court; or where a witness is present in Court, but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witnesses. The Court has been empowered to dispense with the examination-in-chief or cross-examination of the witness, as the case may be. The said subsequent legislative provision supports the action taken by the trial Court in rejecting request of the counsel for the defence for adjournment for the reason that the professional work of the counsel is likely to suffer. Such rejection of request cannot be said to be unfair or unreasonable.
Kumar Vimal2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 38 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
52. In view thereof, we do not find any merit in the argument that the trial was not fair. In fact, after raising such an argument, the learned counsel representing the appellants, stated that they are not pressing such an argument. But still, the argument raised has been dealt with as discussed above.
53. The learned counsel for the accused - Abdul Latif argued that he was an accused for an offence under Sections 120-B, 419, 420, 465, 466, 467, 468, 471, 472, 473, 474, 475 & 476 read with Section 34 IPC in respect of the passports allegedly got prepared by him for the hijackers. In the said trial, he has been acquitted vide judgment Ex.A/3. Therefore, the conviction of the accused in the present trial suffers on account of vice of double jeopardy and that the findings recorded are relevant in the present proceedings.
V. Whether the Judgment of the Mumbai Sessions Trial (Annexure A-3) amounts of double jeopardy and whether the findings recorded by the said court are relevant or admissible in evidence in the present trial?
54. Mr. Bains raised an argument but later gave up that the present proceedings suffer from the vice of double jeopardy in view of the judgment of rendered by the Mumbai Court. The said argument was not pressed for the reason that in fact, the judgment of the Special Judge, Patiala, subject matter of the present appeal, is prior in time than the order of acquittal recorded by Mumbai Court. Even the charges were framed prior in time at Patiala than before the Mumbai Court. Therefore, the argument of vitiation of trial for the same offence subsequently would not be available in the present proceedings in view of Section 300 of the Code nor the bar under Article 20 of the Constitution is available to the present trial. However, it is argued that the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 39 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 findings recorded in the said judgments are relevant in the present proceedings.
55. Mr. Bains representing Abdul Latif argued that he along with PW-74 Suresh Laxman Bhatnate and PW-20 Ismile Umar Chunewala was charged in C.C.No.256/P/2003 titled 'The State Vs. Abdul Latif Adam Momin etc.' before the Mumbai Court for the offences punishable under Sections 120-B, 419, 420, 465, 466, 467 read with Section 34 IPC as well as under Section 3 read with Section 12 of the Indian Passport Act, 1967 consequent to recovery of passports and Driving Licences etc. at the time of his arrest on 30.12.1999. It is argued that the appellants have been charged for the offences punishable under Sections 467, 468 & 470 IPC before the Special Court, Patiala as well. The Judgment of the trial before the Mumbai Court has resulted into acquittal on 19.10.2012 (Annexure A-3). It is argued that the CBI has conducted unfair investigations and abused its power to implead PW-74 Suresh Laxman Bhatnate and PW-20 Ismile Umar Chunewala, as the accused before the Mumbai Court, but managed their acquittal from the Mumbai Court so as to examine them as prosecution witnesses against the appellants before the Special Court, Patiala. It is argued that the prosecution has miserably failed to prove the recovery of passports, driving licences as well as explosives before the Mumbai Court, therefore, such judgment of acquittal rendered by the Mumbai Court is relevant to examine the inconsistent finding recorded in the present case. In terms of Section 43 of the Evidence Act, the said judgment is relevant in terms of Sections 8, 11, 114(b) & (g) & 155 of the Evidence Act. In support of his arguments, learned counsel for the appellant relies upon judgments of Supreme Court in Brijbasi Lal Shrivastava Vs. State of M.P. (1979) 4 SCC 521; Srinivas Krishnarao Kango Vs. Narayan Devji Kango & others AIR Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 40 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 1954 SC 379; Sital Das Vs. Sant Ram & others AIR 1954 SC 606 and that of Calcutta High Court in A.K.Khosla & others Vs. T.S.Venkatesan & another reported as 1992 Cri. L. J. 1448.
56. The judgment of Mumbai Court pertains to events at different points of time and acts, arising out of different set of allegations. It is also not between the same parties. Firstly, the prosecutors in both the trials are different. One is by the Maharashtra Police, whereas the present trial is by the CBI. Only two of the accused before the Patiala Court were the accused before the Mumbai Court out of 23 accused. The offences before the Mumbai Court are of the violation of the Indian Passport Act, 1967 and that the offences under Sections 120-B, 419, 420, 465, 466, 467 read with Section 34 IPC. The trial in question is that of offences under Sections 4 & 5 of the Anti Hijacking Act as well as under Sections 467, 468 & 470 IPC, which were not the offences before the Mumbai Court. In fact, only an offence under Section 467 is common in both the proceedings, which is in respect of forgery of passports, driving licences and few other documents. The offence under Section 120-B IPC before the Mumbai Court has nothing to do with the offence of conspiracy of hijacking of an aircraft. Though the some of the facts such as recovery of passports are same but, there is neither identity of parties nor that of the offences nor the ingredients of the offences in both the trials are same or similar. In terms of Section 43 of the Evidence Act, other judgments are relevant only if the same are relevant under any other provision of the Evidence Act and are between same parties.
57. We do not find any merit in the argument that the acquittal recorded by the Mumbai Court is any way relevant to determine the commission of offences by the appellants in the present trial. In Brijbasi Lal Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 41 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Shrivastava's case (supra), the Supreme Court held that the judgment in earlier case would be admissible to show the issue in the previous case and the decision thereof. The Court noticed that earlier judgment related to 2 items of Rs.20/- & Rs.43/-, whereas the appeal in question was in respect of Rs.500/- said to be dishonestly withdrawn by the appellant. The Court held that the previous judgment cannot be given any importance in respect of item of Rs.500/-. Thus, the said judgment does not support the argument raised.
58. The judgments in Sital Das's case (supra) and Srinivas Krishnarao Kango's case (supra), dealt with issue of proof of existence of custom. The findings relating to custom are admissible in evidence in terms of Section 13 of the Evidence Act. Such judgments even remotely have no application to the facts of the present case. The Single Bench judgment in A.K.Khosla's case (supra) has held that the evidence and reasoning in the previous judgment is not admissible in criminal trial. In the said case, the judgment of Board for Industrial & Finance Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985 was found to be relevant, but not conclusive and binding on the criminal court.
59. We shall now examine as to under which provision, the judgment of the Mumbai Court can be said to relevant in the present trial and to what extent the findings recorded therein can be read or relied upon in the present trial.
60. In Asa Singh & another Vs. Mansha Ram & another AIR 1930 Lahore 237, the judgment of Privy Council and that of Calcutta High Court were considered while examining the relevancy of the previous judgment. It was observed:
Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 42
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 "It was held by the Privy Council in AIR 1929 P.C. 99 Kumar Gopika Raman Roy Vs. Atal Singh, that the Evidence Act does not make a finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case where the parties are not the same. In Basi Nath Pal Vs. Raja Jagat Kishore Acharjee 23 C.L.J. 583, (35 Ind.Cases
298) the Calcutta High Court held that a judgment, not inter parties, may be used in evidence in certain circumstances, as a fact in issue, or as a relevant fact, or possibly as a transaction, but the recitals in the judgment cannot be used as evidence in another litigation. A Full Bench of the Madras High Court held in Seetapat Rao Vs. Venkanna Dora AIR 1922 Mad. 71 that a recital in a judgment not inter parties of a relevant fact is not admissible in evidence under Section 35 Evidence Act."
61. A Division Bench of Patna High Court in a judgment reported as Ramadhar Chaudhary & others Vs. Janki Chaudhary AIR 1956 Patna 49 examined the question of relevancy of the judgments of the Civil and Criminal Courts and also delineated the extent to which such judgments can be referred in subsequent proceedings. The Court held that the facts stated in the judgment, statements of the evidence of the witnesses or the findings given are not admissible in evidence. The Court observed as under:
"18. .....But this Section (Section 43) expressly contemplates cases in which judgments would be admissible, either as facts in issue, or as relevant facts under other sections of the Act. Therefore, a judgment, other than a judgment referred to in Sections 40 to 42, may be admissible, to prove that a right was asserted, or denied, under Section 13 of the Act, or to explain, or to introduce facts in issue, or to explain the history of the case. But the actual decision, or the findings arrived at in a previous judgment cannot be used as evidence to decide the points which are in issue in a different case, except in cases coming under Sections 40 to 42.
Such a decision may by virtue of specific provisions operate as 'res judicata', or be relevant as a pronouncement on matters of public nature, but otherwise it is no better than a mere opinion expressed on the issues involved in a particular case, and Evidence Act is clear that 'opinion' will be relevant in those cases only which are specifically referred to in the Act, and in no others Section 43, therefore, subject to the exceptions mentioned in the latter part, excludes prior judgments, and so in effect declares that in deciding a question which has been decided in a suit between other parties, Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 43 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the Court shall not be guided by the judgment in the former suit or finding therein contained.
xx xx xx Such orders are evidence of the following facts, all of which appear from the orders themselves, namely, who the parties to the dispute were; what the land in dispute was; and who was declared entitled to retain possession. The reasonings in the judgment, and the conclusions drawn from them, are not binding or conclusive. Even in civil cases there is no provision in the Evidence Act, by which actual decision or the findings arrived at in a previous judgment can be used as evidence to decide the points which are in issue in a case, unless such decision operates as 'res judicata', or is relevant under Sections 40 to 42 to prove assertion of a right, etc. From the above review of the law on the point, we find that a judgment of a criminal Court is admissible to prove only who the parties to the dispute were, and what order was passed. Facts there in stated, or statements of the evidence of the witnesses examined in the case, or the findings given by the Court, are not admissible at all. Technically, such judgments are inadmissible as not being between the same parties, the parties in the prosecution being the State on the one hand, and the prisoner on the other, and in the civil suit the pristine, an some third party; and substantially, because the issues in a civil and criminal proceedings are not the same, and the burden of proof rests in each on different shoulders.
Even an admission cannot be proved by a recital in such a judgment. Therefore, a proceeding of a criminal Court is not admissible as evidence; a civil Court is bound to find the facts for itself. ......"
62. In terms of Section 8 of the Evidence Act, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. A Judgment would be relevant in terms of Illustration (d) in Section 43 the Evidence Act, if it is motive for commission of offence. The Judgment by Mumbai Court itself is not a fact, which is relevant to examine motive or preparation for any fact in issue in the present trial. The said Judgment is culmination of the evidence led by the prosecution leading to the acquittal of the accused after taking into consideration either the motive or the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 44 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 preparation for the facts proved or not proved in such trial. Such criminal Trial was also not an inquiry into the conduct of an accused. Therefore, the said Judgment is not relevant for any purpose in terms of Section 8 of the Evidence Act in the present trial.
63. The argument that the judgment is relevant in terms of Section 11 of the Evidence Act is again not tenable. A Judgment is an opinion as to the existence or non-existence of certain facts. Such opinion of the Court found in a judgment cannot be regarded to be such fact as would fall within the meaning of Section 11 of the Act unless existence of these opinions (Judgments) is a fact in issue or a relevant fact. A Full Bench of the predecessor Court of this court in a judgment reported as B.N.Kashyap Vs. Emperor AIR 1945 Lahore 23 was examining the relevancy of the judgment of the civil and criminal court in proceedings inter-se. It was held to the following effect:
"2. .....Section 43 of the Act positively declares judgments other than those mentioned in Sections 40, 41 and 42 to be irrelevant unless their existence is a fact in issue or is relevant under some other provision of the Act. It is quite clear that the mere existence of a judgment in the present case is not relevant. Learned counsel for the petitioner saw this difficulty and wished to rely on Section 11 of the Act. But I cannot see how could that section have any application when the existence of that judgment as apart from any finding contained therein or even the finding itself could neither be inconsistent with any fact in issue or a relevant fact. Nor could such judgments either by themselves or in connection with other facts make the existence or non-existence of any fact in issue or relevant fact in any subsequent proceedings highly probable or improbable. This section only refers to certain facts which are either themselves inconsistent with, or make the existence or non-existence of, the fact in issue or a relevant fact highly probable or improbable and has no reference to opinions of certain persons in regard to those facts. It does not make such opinions to be relevant and judgments after all of whatever authority are nothing, but opinions as to the existence or non-existence of certain facts. These opinions cannot be regarded to be such facts as would fall within the meaning of Section 11 of Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 45 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the Act unless the existence of these opinions is a fact in issue or a relevant fact which is of course a different matter."
64. The above said Judgment has been quoted with approval by three Bench decision reported as K.G. Premshanker Vs. Inspector of Police, (2002) 8 SCC 87.
65. The Supreme Court in M. Jakati Vs. S.M.Borkar AIR 1959 SC 282 held that an order is not admissible to prove the truth of the facts therein stated and that it may be relevant to prove the existence of the judgment itself. The Court observed as under:
"11. .......The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence. Section 43 of the Evidence Act, the principle of which is. that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue are irrelevant."
66. In Kharkan & others Vs. State of U.P. AIR 1965 SC 83, an appeal against the conviction for an offence under Section 325 read with Section 149 IPC in respect of assault on Tikam (Deceased), the Court dealt with an argument that the earlier judgment involved almost the same evidence and the reasoning of the learned Judge in Puran's case (injured on the same day) destroys the prosecution case in the appeal. The Court held that the earlier judgment is no doubt is admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence.
67. In Karan Singh Vs. State of M.P. AIR 1965 SC 1037, the court was examining the effect of acquittal of one of accused in a separate trial and Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 46 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the finding of common intention in respect of the said accused in another trial to hold the other accused guilty. The Court observed as under:
"4. The only question argued in this appeal is whether in view of the acquittal of Ramhans by the learned Sessions Judge from which there had been no appeal, it was open to the High Court to hold that the appellant was guilty of murder under Section 302 read with Section 34 by finding on the evidence that Ramhans who shared a common intention with him, shot the deceased dead and attempted to murder Ramchandra. In the High Court reliance had been placed on behalf of the appellant on the judgment of this Court in Pritam Singh vs. State of Punjab AIR 1956 SC 415. That case referred with approval to the judgment of the Judicial Committee in Sambasivam vs. Public Prosecutor. Federation of Malaya 1950 AC 458, where it was observed that "the effect of a verdict of acquittal .... is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication."
As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the appellant's case had to be decided only on the evidence led in it. The evidence led in Ramhan's case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant's case. We may add here that Mr Misra appearing for the appellant did not in this Court rely on Pritam Singh case (supra).
xxx xxx xxx
6. We are therefore of opinion that the judgment in Krishna Govind Patil vs. State of Maharashtra AIR 1963 SC 1413 does not assist the appellant at all. On the other hand we think that the judgments earlier referred to on which the High Court relied, clearly justify the view that in spite of the acquittal of a person in one case it is open to the Court in another case to proceed on the basis -- of course if the evidence warrants it -- that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence under Section 34 by virtue of having committed the offence Kumar Vimal along with the acquitted person. There is nothing in principle to prevent this 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 47 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 being done. The principle of Sambasivam vs. Public Prosecutor Federation of Malya case (supra) has no application here because the two cases we are concerned with are against two different persons though for the commission of the same offence. Furthermore, as we have already said, each case has to be decided on the evidence led in it and this irrespective of any view of the same act that might have been taken on different evidence led in another case."
68. In Kishan Singh Vs. Gurpal Singh (2010) 8 SCC 775, the Supreme Court held that there is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. It observed as under:
"18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases, it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject- matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration."
69. In view thereof, we find that the judgment of Mumbai Court is relevant only to the extent that there was a trial against the appellants and others by the State of Maharashtra, which led to acquittal of the appellants (Accused Abdul Latif and Yusuf Nepali). The trial before the Mumbai court was not for conspiracy of hijacking of the flight. The present trial is of preparing forged documents with a view to hijack Indian airlines flight. There was no such allegation in the trial before Mumbai Court. The trial before the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 48 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Special Court, Patiala and the present appeal has to be decided on the basis of the evidence produced by the prosecution before it. Neither the evidence nor the findings recorded by the Mumbai Court can be referred or relied upon by Special Court. This Court has to decide role of each of the appellants in commission of crime based on evidence led before it alone.
VI. Whether the Accused can be charged for an offence of abetment of the offence of Hijacking or the Conspiracy in hijacking of the Air Craft in view of the provisions of the Special Law and in terms of the Hague Convention?
70. Learned counsel for the appellant Abdul Latif has vehemently argued that the Anti Hijacking Act, 1982 has been enacted to give effect to Convention for the Suppression of Unlawful Seizure of Aircraft signed including by India at The Hague on 16.12.1970. Section 3 of the said Act defines the offence of the hijacking of an aircraft. Sub-section (1) deals with the hijacking by a person on board of an aircraft, whereas sub-section (2) takes into ambit the attempted hijack or abetment in the commission of act of hijacking, as deemed to have been committed the offence of hijacking. As per Article 1 of the Convention signed on 16.12.1970, an accomplice of a person, who performs or attempts to perform seizure or control of the aircraft has to be person on board an aircraft. It is argued that there is no allegation of the prosecution in respect of abetment of hijacking by the appellants. The allegation against the appellants is that of conspiracy in hijacking of the aircraft, which is not an offence under the Act nor has been made punishable under the special Act i.e. Anti Hijacking Act, 1982. In view of the special Act in force, the appellants cannot be charged for an offence under general law - Indian Penal Code, which does not take into its ambit offence of Kumar Vimal hijacking of an aircraft. Reliance is placed upon Gramophone Company of 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 49 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 India Ltd. Vs. Birendra Bahadur Pandey & others AIR 1984 SC 667 to contend that International Convention can be taken into consideration for interpreting the provisions of Municipal law. It is argued that in the Municipal law, there is ambiguity, as to whether a person who is not on board can also be charged for abetment of commission of an act of hijacking, therefore, in terms of the judgment of Supreme Court in Gramophone Company of India Ltd. case (supra), the International Convention will be relevant to interpret the Municipal law.
71. It is also argued that Anti Hijacking Act is a special Act, therefore, the appellants can be charged for an offence, if any, committed under the said Act only and not for any offence under the Indian Penal Code particularly that of 120-B IPC. In support of such contention, reliance is place upon a Division Bench judgment of Andhra Pradesh High Court in Akki Veeraiah Vs. State (Inspector, Special Police Establishment) AIR 1957 AP 663. In the said case, the allegations against the petitioner were under Section 120-B read with Sections 408 & 477A IPC. The prosecution adduced its evidence that the offence disclosed is punishable under Section 5 of the Prevention of Corruption Act, 1947. Thus an argument was raised that the Indian Penal Code stands modified after a special Statute is enacted. It was the said argument, which was accepted by the Bench.
72. We are unable to agree with the arguments raised. In Gramophone Company of India Ltd. case (supra), referred to by the learned counsel for the appellants, the Supreme Court has held that the Municipal law must prevail in case of conflict with the international convention. National Courts endorse International law, but not if it is in conflicts with National law. The Court held to the following effect:
"5. There can be no question that nations must march with the international Kumar Vimal community and the municipal law must respect rules of international law 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 50 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. National courts cannot say yes if Parliament has said no to a principle of international law. National courts will endorse international law but not if it conflicts with national law. National courts being organs of the national State and not organs of international law must perforce apply national law if international law conflicts with it. But the courts are under an obligation within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law. But if conflict is inevitable, the latter must yield."
73. In view of the said judgment, we need to examine; whether the Municipal law is in conflict with International Convention. Article 1 of the Convention to which learned counsel for the appellants referred reads as under:
"Any person who on board an aircraft in flight:
(1) unlawfully, by force or threat thereof, or by any other form of intimidation seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (2) is an accomplice of a person who performs or attempts to perform any such act"
74. The Municipal law i.e. Anti Hijacking Act, 1982 has defined 'Hijacking in Chapter II to read as under:
"3. Hijacking - (1) Whoever on board an aircraft in flight, unlawfully, by force or threat of force or by any other form of intimidation, seizes or exercises control of that aircraft, commits the offence of hijacking of such aircraft.Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 51
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 (2) whoever attempts to commit any of the acts referred to in sub-section (1) in relation to any aircraft, or abets the commission of any such act, shall also be deemed to have committed the offence of hijacking of such aircraft. (3) For the purposes of this section, an aircraft shall be deemed to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation, and in the case of a forced landing, the flight shall be deemed to continue until the competent authorities of the country in which such forced landing takes place take over the responsibility for the aircraft and for persons and property on board."
75. A reading of the International Convention shows that the expression 'any person on board an aircraft in flight' relates to both set of persons, who seize or exercise control of the aircraft or also who is an accomplice of a person, who performs or attempts to perform any such act. Reliance of Mr. Bains is that both clauses i.e. a & b are derivative of expression 'any person on board an aircraft in flight', therefore, an accomplice has to be on board of the Aircraft, before he can be said to be violated International Convention, whereas the Municipal law is ambiguous to that extent.
76. We do not find that there is any ambiguity in the Municipal law. Sub-section (1) of Section 3 deals with a person, who is on board of an aircraft in flight, whereas sub-section (2) contemplates that any person, who attempts to commit any of the act referred to in sub-section (1) or abets the commission of the acts referred to in sub-section (1) is also deemed to have committed the offence of hijacking of such aircraft. Therefore, in view of the unambiguous words of the Municipal law and the distinction in sub-section (1) and sub-section (2) of Section 3 of the Anti Hijacking Act, 1982, any person, who attempts to commit or abets the commission of hijacking, are deemed to have committed the offence of hijacking. In view of the unambiguous expressions used in the Municipal law, we are unable to agree Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 52 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 with the argument raised that the person, who is on board of an aircraft alone can be said to be an accomplice or as person who abets the commission of such offence.
77. The other argument of learned counsel for the appellants is that since the Anti Hijacking Act, 1982 is a special Statute, therefore, the provisions of general Statute i.e. Indian Penal Code stands modified to that extent. Therefore, the offence against the appellants has to be found out within four corners of Anti Hijacking Act, 1982 alone and not with reference to the provisions of Indian Penal Code particularly an offence punishable under Section 120-B of the IPC.
78. We do not find any merit in the said argument as well. Hijacking of an aircraft was not known when IPC was enacted but the offences of wrongful restraint; kidnapping and kidnapping for ransoms etc are the offences, which are punishable under the IPC. To deal with the menace of hijacking, the Special Act has been enacted. Provisions of the special Act to the extent the provision has been made in the said Act alone would be applicable as against the provisions contained in the general law. In all other matters, the general law will continue to be applicable. The provisions as are in conflict with the existing provisions of either Code of Criminal Procedure or Indian Penal Code alone will stand modified to that extent. But where the provisions of Special Statute are silent, an accused can be tried and convicted for an offence as made out in terms of the IPC.
79. Sub-section (2) of Section 3 of the Anti Hijacking Act, 1982 takes into its ambit, the offence of abetment of commission of the act of hijacking as punishable under the said Act. The provisions of the said Act are silent regarding the conspiracy of hijacking of an aircraft. The Aircraft is registered in India vide Ex.PW-1/D on 17.08.1976. Since the aircraft is Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 53 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 registered in India, therefore, all offences relating to such aircraft are governed by the Indian Penal Code alone apart from the fact that appellants Abdul Latif and Dilip Kumar Bhujel are the Indian nationals, whereas appellant Bhupal Man Damai @ Yusuf Nepali is a national of Nepal, but was in India. Therefore, in terms of Section 4 read with Section 2 of the IPC, all the accused have been properly tried for the offences charged.
80. The Hijacking Act is special statute dealing with hijacking of an Aircraft and other related offences, whereas, the IPC is general statute dealing with offences of kidnapping, kidnapping for ransom etc but not specifically of Hijacking. Therefore, the provisions contained in the special Act so far they are inconsistent with general law will prevail. But where the special statute is silent, the general statute will continue to be applicable. In MCD Vs. Shiv Shanker, (1971) 1 SCC 442, the Court was examining the Food Control order issued under the Essential Commodities Act, 1955 and the conflict with the provisions of the Prevention of Food Adulteration Act, 1954. The Court observed as under:
"5. .....It was laid in Maine v. State (1883) 11 QBD 120 that when two Acts are inconsistent or repugnant the latter will be read as having impliedly repealed the earlier. As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to obey. The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The Courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 54 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 consequences, which intention could not reasonably be imputed to the legislature. It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject-matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls implied repeal of a general by a special statute. The subsequent provision treating a phase of the same general subject-matter in a more minute way may be intended to imply repeal protanto of the repugnant general provision with which it cannot reasonably co-exist. When there is no inconsistency between the general and the special statute the later may well be construed as supplementary.
81. In ICICI Bank Ltd. Vs. SIDCO Leathers Ltd., (2006) 10 SCC 452, it has been held that rights of the parties under the common law and the Transfer of Property Act are not superseded with the enactment of the Companies Act. The Supreme Court observed as under:
"46. The provisions of the Companies Act may be a special statute but if the special statute does not contain any specific provision dealing with the contractual and other statutory rights between different kinds of the secured creditors, the specific provisions contained in the general statute shall prevail."
82. Thus, we find that certain offences under the provisions of the IPC, such as offences of wrongful restraint, confinement and/or kidnapping Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 55 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 etc. alone can be said to be inconsistent with the provisions of the Anti Hijacking Act, 1982. But in the absence of any provision in the special law in respect of the offence of conspiracy, the general law would continue to operate and accused of such offences can be tried and convicted of an offence under the Indian Penal Code. The offence of abetment being part of conspiracy, an accused could be tried for an offence of conspiracy punishable under Section 120-B of the IPC.
VII. Whether the confession suffered by the Appellants are voluntary?
83. Learned counsel for the appellant Abdul Latif has vehemently argued that the confession recorded on 04.04.2000 by PW-9 A.S.Virk, Sub Divisional Judicial Magistrate, then at Patiala is not a voluntary act of the appellant. It is argued that such confession runs into over 40 typed pages and 4 hand-written pages, which is impossible to be recorded in 2 hours of Court working. The process of recording of confession started at 2.00 PM on 04.04.2000, the Court timing being till 4.00 PM. It is contended that the confession recorded is without any error and that such confession was, in fact, appeared to be a statement given by CBI to the Court and has been attributed to the appellant. It is also argued that the appellant was produced before the learned Judicial Magistrate on 03.04.2000 at about 3.00 PM, when the Magistrate sent the appellant to judicial custody for 24 hours to have reflection on the giving of confessional statement after about 30 minutes of court proceedings. But even before the expiry of 24 hours, the confessional statement of appellant was recorded on 04.04.2000 starting from 2.00 PM. Thus, the Court has violated the instructions given in Volume III, Chapter XIII Rule 5(a) of the High Court Rules and Orders and also the judgment of Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 56 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Supreme Court in Sarwan Singh Rattan Singh Vs. State of Punjab AIR 1957 SC 637 . It is also pointed out that the appellant has retracted his confession Ex.PW-9/C, when PW-9 A.S.Virk, Sub Divisional Judicial Magistrate, was being examined and such retracted confession cannot be used by prosecution. It is also argued that the entire charge-sheet of the prosecution agency is based upon confession of the appellant and only small bits and parts of such confessional statement can be said to be corroborated by the oral and documentary evidence produced by the prosecution, whereas the substantial part of the confession has not been corroborated. Therefore, such confession recorded in violation of the instructions of the High Court and that of the judgment of Supreme Court cannot be relied upon to prove the charges against the appellant.
84. The confession of an accused is dealt with in Section 24 of the Evidence Act, 1872. It makes a confession made by an accused person irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person. The confessional statement of Abdul Latif has been recorded by PW-9 A.S.Virk under Section 164 of the Code after verifying the voluntary nature of the statement and after apprising him of adverse consequences in making such statement and also the time of think over the consequences of such statement.
85. The Supreme Court in Sarwan Singh Rattan Singh (Supra) held that whether or not the confession is voluntary would be a question of fact. The Court found that the confession of Sarwan Singh was recorded after the Magistrate has given half an hour to think about the statement, which he was going to make. The Court observed that confession has to be voluntary and also true. It would be necessary to examine the confession and compare it Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 57 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 with the rest of the prosecution evidence and the probabilities in the case to determine whether the confession is true.
86. In another judgment reported as Ram Chandra & another Vs. State of U.P. AIR 1957 SC 381, the confession of an accused was recorded by a delegate of the District Magistrate in jail. No attempt was made as to why confession was being recorded after long time. The Court found that the Officer, who recorded the confession, was inexperienced officer and that such confession has been recorded not in accordance with the manual of Government Orders of U.P. The Officer has not made any attempt to enquire the reason as to why confession has been made or the same is voluntary. In these circumstances, the Court did not rely upon confession maintaining conviction in respect of murder, but confession relating to kidnapping and extortion was found to be corroborative by the substantial evidence and the conviction for such offences maintained.
87. In Anil @ Raju Namdev Patil Vs. Administration of Daman & Diu. Daman & another (2006) 13 SCC 36, the statement of the accused was recorded after the Court time was over, but after giving time to the accused to come on the next day. The Court found the confession by the appellant was voluntary in nature and the same was free from undue influence, coercion and threat, as he was driver appointed by the parents of the deceased. He never thought that the boy would be murdered. He did not have any animosity with the deceased.
88. The argument that statement of 40 typed pages cannot be recorded in two hours of Court time available, more so when the typed version is without any mistake is also without any merit. PW-9 A.S.Virk, Sub Divisional Judicial Magistrate, has been cross-examined at length. He stated that the accused was produced before him on 03.04.2000 at about 4.00 PM. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 58 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 On being satisfy that the accused wants to voluntary make confession, but he still sent him to judicial custody. The accused was again produced before him on 04.04.2000 at about 2.00 PM. After satisfying the nature of the voluntary statement, which the accused wishes to make, the witness has proceeded to record the statement. One of the reasons given by the accused Abdul Latif to give confessional statement is that the conduct of the Officers of the CBI was extremely cordial as against the behavior of the Mumbai Police and that the guilt in him is troubling him and therefore, he wants to make a confession.
89. In fact, Mr. Bains argued that cordial behavior of the Officers of the CBI is unnatural and was in fact an inducement to the appellant to fall trap to submit confessional statement and, therefore, it cannot be said to be voluntary in nature. We find the argument raised by Mr. Bains to be preposterous. There are always allegations against the Police or investigating team of threat and coercion in obtaining the confessional statement. However, in the present case, the appellant itself stated that the behavior of the Officers of the CBI is cordial than the behaviour of Mumbai Police. It was the guilt of the appellant himself, which was troubling him leading him to submit confessional statement. Therefore, the good or cordial behaviour cannot be said to be inducement to make confessional statement. The guilt of the appellant led him to make a confession. The good behaviour was not accompanied with any promise or a golden carat or even promise of pardon or approver, which could prompt the accused to succumb to the bait of submitting to confession. The long statement is on A4 size paper with double space and has numerous mistakes of overwriting and spelling, which could not be corrected by the officer in the time available nor the typist was aware of spellings. For example, the word typed is "Ambassy" for Embassy. We do not think such kind of mistake can be committed in the pre-typed statement. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 59 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
90. The reasons given by the accused before giving his statement and the fact, that the statement was recorded in open court carries strong presumption of the correctness of the court proceedings. There has to be strong evidence to return a finding that the court proceedings were not performed in normal course. There is no such suggestion to the officers who recorded such statements. It only shows the investigations were carried out in a professional way, which led the accused to confess. The good conduct of the investigation officers is not inducement so as to return a finding that the confessional statement is not voluntary in nature.
91. Mr. Bains has vehemently argued that in terms of judgment in Sarwan Singh Rattan Singh's case (supra) and the Rules and Orders of this Court, an accused is entitled to at least 24 hours for reflection, whereas the appellant Abdul Latif was given only 22 hours before his confession could be recorded.
92. Rule 5 of Chapter 13 Volume III of the High Court Rules and Orders are the instructions issued for guidance of the Magistrates for recording of confessions and statements under Section 164 of the Code. Such instructions itself stipulates that it is not intended to fetter any discretion given by the law to Magistrates as such, but it is only desired to indicate the directions under which such discretion may be exercised. Since the actual time gap between the judicial remand and the recording of confessional statement of appellant Abdul Latif is about 22 hours, therefore, it cannot be said that the guidelines for recording of such statement has been violated in any manner. Firstly, the Rules are only guideline and it does not fetter the discretion given by the law to the Magistrate to record such confessional statement. The Court is to regulate its working and in such regulation process, if exact 24 hours could not be given to an accused, like the present Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 60 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 one, it cannot be said that the Magistrate has committed such illegality, which invalidates the confession recorded by him. Still further, Rule 2 of Chapter I, Part A of the Volume I of the High Court Rules and Order states that no new case should be taken up after the closing of the Court but the hearing of a case taken up before that hour may, if necessary, be continued for a short time. PW-9 A.S.Virk has deposed that he started recorded statement at about 2.00 PM, which he continued to record till the same was finished. The time of finishing of confessional statement has not come on record. But the fact remains that the Magistrate has deposed that he recorded the statement in English under his dictation after translating the same and after explaining the contents thereof to the accused. The recording of the statement continued even after the court hours, which are till 4.00 pm. Thus in fact, in the process of recording of the statement, 24 hours have in fact lapsed.
93. In Ram Chandra's case (supra), the confession was recorded in jail, therefore, it was observed that confession should be recorded in Court and during Court hours. In the present case, the recording of confessional statement started on 04.04.2000 at about 2.00 PM and continued even beyond the Court hours. Therefore, on the strength of Ram Chandra's case (supra) or the guidelines framed by the High Court, it cannot be said that recording of statement beyond the Court hours, but in Court, is any way illegal or the statement can be said to be not voluntary or untrue. Recording of confessional statement after the expiry of Court hours is only to maintain continuity of such statement. The magistrate does not become functus officio after the expiry of court hours. The provision that the statement has to be recorded in Court and during court hours is to ensure that the accused feels free to give statement and is not under influence of the investigating agency. There is no allegation nor any circumstances has been brought on record that Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 61 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 there was any influence on the accused after they were sent to the judicial custody. In fact it was averred in the application moved by CBI that the accused wanted to give confessional statement that the accused be sent to judicial custody even in case, he does not give confessional statement. Thus, we hold that the statement suffered by the accused Abdul Latif (Ex PW9/C) was voluntary in nature without any force or coercion on the part of the prosecution.
94. The confessional statement of Yusuf Nepali (PW-9/H) is in 18 typed pages, the recording of which started around 10.00 AM on 5.4.2000 after the said accused was given time to reflect around 11.00 AM the previous day i.e. 04.04.2000. The hand written confessional statement (Ex.PW3/C) of accused Bhujel was recorded on 17.4.2000 after the accused was produced before the Judicial Magistrate o 8.4.2000 and given time to reflect till 12.4.2000. The accused was given another 5 days time to reflect on 12.4.2000, before the statement was recorded by PW 3 V.K.Bansal. Such statements are proved to be suffered voluntary for the same reasons as are recorded above in the case of Abdul Latif.
95. However, whether such statement is true shall be examined while examining the corroborative evidence of such evidence while discussing the part of the accused in hatching a conspiracy.
VIII. Whether the confessional statement recorded has been retracted and the consequences thereof?
96. All the appellants have retracted from their confessions as and when the Judicial Officers, who recorded such statements, appeared in the witness-box. PW-3 V.K. Bansal recorded statement of A-10 on 17.4.2000 and an application to retract confession was filed on 04.09.2001. PW-9 Kumar Vimal A.S.Virk recorded statements of Abdul Latif and Yusuf Nepali on 04.04.2000 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 62 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 and 05.04.2000 respectively and the applications to retract statements were filed on 15.12.2001. It is, thus, contended that such retracted confessions cannot be relied upon by the prosecution for any purpose. It will be relevant to note that such confessions were made basis of the report submitted under Section 173 Cr.P.C. on 20.6.2000. The appellants have not retracted from such confessions at the time when report was submitted or soon thereafter or even when the charges were framed on 28.04.2001. It was only when the judicial officers stepped into witness-box, the appellants filed identically worded applications to retract from the confessions.
97. A perusal of the record shows that appellant Dilip Kumar Bhujel filed an application on 04.09.2001 to retract the confession made by him before PW-3 V.K.Bansal, Metropolitan Magistrate, Delhi on 17.04.2000, inter alia, for the reason that CBI had made promise that if he makes such type of statement before the Magistrate, then he would be made approver and pardon will be tendered to him. Another application has been filed by appellant Abdul Latif through his counsel namely M/s Majeed Memon and Brijinder Singh Sodhi, Advocates. In the said application, apart from the insertions of paras 4, 5 & 6 and change of name of the Officers in whose custody the applicant, the contents are word by word same. Abdul Latif in his application averred that he never made any such confessional statement and neither it is true nor voluntary. The facts mentioned in the confession are not within his knowledge nor the confession was read over or read by the applicant. Both the applications are computer typed.
98. Though the application filed by Bhupal Man Damai is typed on a manual typewriter, but it is substantially same as that of the earlier applications filed by appellants Abdul Latif and Dilip Kumar Bhujel in as much as in para 3, he makes reference to the statement made before the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 63 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Magistrate on 17.04.2000, whereas as a matter of fact, his confessional statement was recorded on 05.04.2000 by PW-9 A.S.Virk, Sub Divisional Judicial Magistrate, then at Patiala.
99. However, all the accused in their statements recorded under Section 313 Cr.P.C. stated that they never made any statement under Section 164 Cr.P.C., but such bald denial cannot be accepted in the face of testimonies of PW-3 V.K.Bansal and PW-9 A.S.Virk, who recorded the statements of the accused after giving him time to think over. Not only the stand of the appellants is contradictory in the applications filed by the Court for retracting the confessions than their statements made under Section 313 Cr.P.C., the fact remains that both the Judicial Officers, who recorded the confessions have certified that appellants have admitted that they are under no pressure and are voluntary making such confession after understanding the consequences of making such statement.
100. In Dara Singh Vs. Republic of India (2011) 2 SCC 490, the Court laid down the test before the confessional statement can be relied up on by the prosecution after examining the judgments available on the subject. The Court delineated the following principles:
"64. The following principles emerge with regard to Section 164 CrPC:
(i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 64
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement."
101. In Aloke Nath Dutta Vs. State of W.B. (2007) 12 SCC 230, the Court considered the extent of admissibility of confessions after their retraction and also the extent of corroboration required. The Court observed as under:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
xxx xxx xxx
109. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature.
xxx xxx xxx Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 65 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
113. The value of a retracted confession is now well known. The court must be satisfied that the confession at the first instance is true and voluntary. (See Subramania Goundan v. State of Madras AIR 1958 SC 66 and Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094).
114. Caution and prudence in accepting a retracted confession is an ordinary rule. (See Puran v. State of Punjab (I) AIR 1953 SC 459.) Although if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction. (Balbir Singh v. State of Punjab AIR 1957 SC 216)
115. We may notice that in 1950s and 1960s corroborative evidence in "material particulars" was the rule. (See Puran v. State of Punjab (I) AIR 1953 SC 459, Balbir Singh v. State of Punjab AIR 1957 SC 216 and Nand Kumar v. State of Rajasthan (1963) 2 Cri. LJ 702.) A distinctiveness was made in later years in favour of "general corroboration" or "broad corroboration". (See for "General Corroboration" -- State of Maharashtra v. Bharat Chaganlal Raghani (2001) 9 SCC 1; "General trend of Corroboration" -- Jameel Ahmed v. State of Rajasthan (2003) 9 SCC 673 and "Broad Corroboration" -- Parmananda Pegu v. State of Assam (2004) 7 SCC 779.)
116. Whatever be the terminology used, one rule is almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. We are not oblivious of some of the decisions of this Court which proceeded on the basis that conviction of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise. (See Balbir Singh v. State of Punjab AIR 1957 SC 216.)
117. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked at with some amount of suspicion -- a stronger suspicion than that which is attached to the confession of an approver who leads evidence in the court."
102. In Mohd. Ajmal Amir Kasab's case (supra), the Supreme Court held that the test to judge the constitutional and legal acceptability of a confession recorded under Section 164 Cr.P.C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 66 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 Cr.P.C., it has to be trashed, but if a confession is established as voluntary, it must be taken into account, not only constitutionally and legally, but also morally. It was held to the following effect:
"457. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164 Cr.P.C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally."
103. In view of the above discussion, we find that the confessional statements are voluntary but the retraction later on belatedly is based on legal advice received on identical reasons. Such confession can be relied upon by the prosecution provided the other evidence on record corroborates the confession either generally or broadly.
IX. Whether the appellants can be tried for criminal conspiracy as contemplated in Chapter V A of the Indian Penal Code.
104. It is argued by Mr. Bains that under sub-section (2) of Section 3 of the Anti Hijacking Act, the offence can be said to be committed by an abettor. It is argued relying upon Section 107 IPC that an abettor is one, who instigates a person to do that thing or engages with one or more other persons in any conspiracy of an act or illegal omission. It is, thus, contended that there is no allegation of any instigation to commit crime in the entire Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 67 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 prosecution case against appellant Abdul Latif. The allegations are that of conspiracy such as either of procuring passports on behalf of the hijackers as Indian nationals or arranging for stay of the hijackers in India or for procuring tickets for them. Such allegations will not make the appellant as an abettor. Since such Act, even if proved, will not make the appellant as part of conspiracy as such acts are not incriminating. The prosecution is solely relying upon the retracted confessional statement (Ex.PW-9/C) to prove the conspiracy for hijacking of the aircraft or of killing of the passengers. The prosecution has not led any evidence of active knowledge of the conspiracy, thus there cannot be any inference of the finding that the appellant was also part of the conspiracy to hijack aircraft.
105. The evidence produced by the prosecution does not lead to corroboration of substantial part of such retracted confession, thus the finding recorded that the appellant was one of the conspirators is not tenable in law. The various acts attributed to the appellant are the acts, which a citizen will normally do in the ordinary course of life and, therefore, performance of such acts will not lead to a finding that the appellant was part of the conspiracy as alleged by the prosecution.
106. On the other hand, Mr. Sandhu representing CBI has argued that the charge of criminal conspiracy against the appellants is based upon the investigations carried out in furtherance of the confessional statements. It is argued that confessional statements recorded by PW-9 A.S.Virk of appellants Abdul Latif and Bhupal Man Damai @ Yusuf Nepali as well as by PW-3 V.K.Bansal of appellant Dilip Kumar Bhujel are proved voluntary and true in nature, giving graphic details of the events prior and after the act of hijacking of the aircraft. Substantial part of the confessional statements stand corroborated by the evidence collected by the prosecution in furtherance of Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 68 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 such confessional statements. It is also argued that retraction of confession by all the accused-appellants was not soon after the confession was made. The appellants filed application for retraction when the Judicial Officers, who have recorded statement, were in witness box. The appellants were given copies of their confessional statement along with report submitted under Section 173 of the Code. Thereafter, the Court has framed charge as well. But the appellants waited and moved identical applications for retraction, when PW-3 V.K.Bansal and PW-9 A.S.Virk stepped into witness-box on 04.09.2001 and 04.03.2002 respectively. The identical worded retraction of all the accused-appellants is on the application presented by their respective Advocates and is not only after gross delay, but it is based upon legal advice so as to wriggle out of the consequences of making such confessional statement. It is argued that the confessional statement was sought to be retracted on the ground that the prosecution has assured the appellants of pardon and making them approver, whereas in the statements recorded under Section 313 Cr.P.C., the stand of the accused is that of denial of submitting of any confession. It is, thus, argued that the retraction of confessional statement is based upon legal advice and on contradictory plea, therefore, unreliable. It is also argued that the prosecution has collected reliable and sufficient evidence to prove the allegations of conspiracy against the appellants on the basis of confessional statement recorded.
107. Section 120-A IPC defines 'criminal conspiracy' to mean that when two or more persons agree to do, or cause to be do an illegal act or an act which is not illegal by illegal means. Firstly, Section 120-A is not restricted to the offences defined in the Indian Penal Code. An illegal act is the one as defined under Section 43 of the IPC. It states that the word "illegal" includes everything which is an offence or which is prohibited by Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 69 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 law. It is rightly not suggested that hijacking of the Aircraft is not an illegal act. Therefore, if two or more persons agree to do or cause to do an illegal act, as defined in the Indian Penal Code or in the Municipal Law, or an act which is not illegal, but by illegal means can be charged for an offence of criminal conspiracy. The offence under Section 120-A, which is punishable under Section 120-B is an independent offence punishable; whether or not the persons conspiring were successful in implementing the conspiracy.
108. The Anti Hijacking Act does not define what the expression 'abet' means. In terms of sub-section (1) of Section 3 of the General Clauses Act, 1897, the expression 'abet' with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code. Therefore, the provisions of Section 107 IPC are relevant to consider the scope and ambit of the offence of abetment.
109. Reference may be made to the judgment in State of Andhra Pradesh Vs. Kandimalla Subbaiah AIR 1961 SC 1241, wherein the Supreme Court held that there is no analogy between Section 120-B and Section 109 IPC. There may be an element of abetment in a conspiracy, but conspiracy is something more than an abetment. Offences under Sections 109 and 120-B IPC are quite distinct and there is no warrant for limiting the prosecution to only one element of conspiracy i.e. abetment, when the allegation is that what a person did was something over and above that. A person can be separately charged with respect to the offence of conspiracy. The Court held to the following effect:
"8. We are unable to accept this view. Conspiracy to commit an offence is itself an offence and a person can be separately charged with respect to such a conspiracy. There is no analogy between Section 120-B and Section 109 IPC. There may be an element of abetment in a conspiracy; but conspiracy is something more than an abetment. Offences created by Sections 109 and 120-B IPC are quite distinct and there is no warranty for limiting the Kumar Vimal 2014.02.25 13:46 prosecution to only one element of conspiracy, that is, abetment when the I attest to the accuracy and integrity of this document Chandigarh 70 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 allegation is that what a person did was something over and above that. Where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those offences as well as with the offence of conspiracy to commit those offences......"
110. In Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar 1962 Supp.(2) SCR 297, one of the Judges of the Supreme Court draw the distinction between an offence under Section 107 and Section 120-A IPC to hold as under:
"16. ..... Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy v. Queen (1868) L.R. 3 H.L. 306:
"When two agree to carry it into effect, the very plot is an act in itself, and the 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 the use of criminal means."
Put very briefly, the distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence."
111. Later, a three Judges' Bench in Noor Mohd. Mohd. Yusuf Momin Vs. State of Maharashtra (1970) 1 SCC 696 held that the criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means. It differs from other offences as mere agreement is made an offence even if no step is taken to carry out that agreement. It was observed as under:
"7. ..... Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 71 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 in amplitude than abetment by conspiracy as contemplated by Section 107 IPC. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto."
112. In Kehar Singh Vs. State (Delhi Administration) (1988) 3 SCC 609, the Supreme Court observed as under:
"274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.
275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (1974) Criminal Law Review 297 Kumar Vimal 2014.02.25 13:46 explains the limited nature of this proposition:I attest to the accuracy and integrity of this document Chandigarh 72
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 "Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties 'actually came together and agreed in terms' to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was 'a tacit understanding between conspirators as to what should be done'."
276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.
277. It is suggested that in view of Section 10 of the Evidence Act, the relevancy of evidence in proof of conspiracy in India is wider in scope than that in English law. Section 10 of the Evidence Act introduced the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators....."
113. In Baliya Vs. State of M.P. (2012) 9 SCC 696, the Supreme Court observed as under:
"15. The offence of "criminal conspiracy" is defined in Section 120-A of the Penal Code whereas Section 120-B of the Code provides for punishment for the said offence. The foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment/performance of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched, once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed. More often than not direct evidence of the offence of criminal conspiracy will not be forthcoming and proof of such an offence has to be determined by a process of inference from the established circumstances of a given case.
xx xx xx
17. The offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 73 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally, in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused."
114. Recently, the Supreme Court in N.V.Subba Rao Vs. State (2013) 2 SCC 162, held to the following effect:
"40. Relying on another decision of this Court in State of M.P. v. Sheetla Sahai (2009) 8 SCC 617 the learned counsel for A-1 submitted that the prosecution has not established conspiracy among the accused. Criminal conspiracy has been defined under Section 120-A IPC. It is an independent offence, hence, the prosecution for the purpose of bringing the charge of criminal conspiracy read with the provisions of the PC Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of the accused. In order to establish the guilt what is necessary is to show the meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence."
115. In view of the above judgments, now the stage is set to examine the question; whether the appellants can be said to be persons agreeing to do an illegal act falling with the scope of Section 120-A IPC. We shall discuss the evidence and role of each of the accused before this court.
X. Whether the confession (including retracted confession) of the accused can be used against other co-accused?
116. The learned counsel for the appellants argued that confessions cannot be used against the other co-accused more so when such confessions Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 74 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 itself have been retracted later. We do not find merit in such argument. The evidence of a co-accused and part of a conspiracy is admissible in evidence in terms of Section 10 of the Evidence Act. In Firozuddin Basheeruddin & others Vs. State of Kerala, (2001) 7 SCC 596, the court examined the scope of offence of Conspiracy. It said that it is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast. The Court observed as under:
"24. Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy -- who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.
25. Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 75 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.
26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said:
"Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime'. What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all. (Van Riper v. United States 967 (2d Cir 1926)"
27. Thus conspirators are liable on an agency theory for statements of co- conspirators, just as they are for the overt acts and crimes committed by their confreres."
117. In State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600, the Supreme Court considered the similar argument and observed as under:
"40. After referring to these decisions, a Constitution Bench of this Court in Hari Charan Kurmi vs. State of Bihar (1964) 6 SCR 623 further clarified the legal position thus: (SCR pp. 632-33) "In dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."
xxx xxx xxx
79. We do not find any such deeming provision in Section 10. No doubt, Section 10 rests on the principle of agency. But, it does not in terms treat Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 76 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 the statements made and acts done by one conspirator as the statements or acts of all. Section 10 only lays down a rule of relevancy. It says that anything done or said by one of the conspirators in reference to the common intention is a relevant fact as against each of the conspirators to prove two things: (i) existence of the conspiracy, and (ii) that they were parties to the conspiracy. As pointed out by the Privy Council in Mirza Akbar vs. King Emperor AIR 1940 PC 176 the thing done, written or spoken in the course of carrying out the conspiracy "was receivable as a step in the proof of the conspiracy". This dictum was approvingly referred to in the Sardul Singh Caveeshar vs. State of Bombay AIR 1957 SC 747.
xxx xxx xxx
85. As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy, its definition, essential features and proof. Section 120-A IPC defines criminal conspiracy. It says:
"120-A. 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:"
Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy. As pointed out by Subba Rao, J. in Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762:
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
86. Under Section 43 IPC, an act would be illegal if it is an offence or if it is prohibited by law. Sections 120-A and 120-B were brought on the statute book by way of amendment to IPC in 1913. The Statement of Objects and Reasons to the amending Act reveals that the underlying purpose was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. ....
xxx xxx xxx
89. In the Statement of Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120-A and 120-B) were "designed to assimilate the provisions of the Penal Code to those of the English Law....". Thus, Sections 120-A and 120-B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still be attracted. The passages from Kumar Vimal 2014.02.25 13:46 Russell on Crimes, the House of Lords decision in Quinn vs. Leathem 1901 I attest to the accuracy and integrity of this document Chandigarh 77 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 AC 495 and the address of Willes, J. to the Jury in Mulcahy v. R. (1868) 3 HL 306 are often quoted in the decisions of this Court. The passage in Russell on Crimes referred to by Jagannatha Shetty, J. in Kehar Singh vs. State (Delhi Admn.) (1988) 3 SCC 609 is quite apposite:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."
This passage brings out the legal position succinctly. XI. Whether the evidence of PW-74 Suresh Laxman Bhatnate and PW-20 Ismile Umar Chunewala is that of accomplice and not admissible in evidence?
118. The argument that PW-74 Suresh Laxman Bhatnate and PW-20 Ismile Umar Chunewala are accomplices of the appellants, therefore, unworthy of credit without corroboration in material particulars, is without any merit. It is argued that the prosecution has not produced the best evidence in respect of preparation of passports on the basis of forged documents and the use thereof, therefore, the Court shall not presume such facts in the present trial. The reliance of the appellant on Section 155 of the Evidence Act to impeach the credibility of the witnesses particularly of PW-74 Suresh Laxman Bhatnate and PW-20 Ismile Umar Chunewala is not tenable on the strength of judgment of Mumbai Court. The credibility of the witnesses for the purposes of the present trial has to be tested as per the statements recorded before the trial Court.
119. The aforesaid co-accused of the appellants before the Mumbai Court are the witnesses in the present case. These witnesses are not the accomplices of the appellants in the present trial. They were co-accused with the appellants before the Mumbai Court leading to acquittal vide judgment Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 78 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Annexure A-3. The statements of the said persons in the afore-said case alone would be the statements of accomplices, requires corroboration to the statements of the witnesses recorded in the said proceedings. The evidentiary value of the statements of the witnesses in Court in the present trial is to be examined and the veracity tested independent of the proceedings before the Mumbai Court. The creditability of the witness could be challenged in the cross examination only but one of the witness (PW 74) has not been cross- examined whereas, nothing incriminating could be brought on record in the cross examination of PW-20. The witness could be cross-examined with respect to their conduct, if any, in the Mumbai Court, when such witnesses were in court. The appellant cannot rely upon the findings recorded in the judgment of Mumbai Court to discredit the testimony of the witnesses examined in the present trial. The credit worthiness of the witness is required to be tested when the witness was in the witness-box and not during the course of arguments. The creditability of a witness is question of fact to be arrived at not only on the basis of his statement but also after considering other evidence on record.
120. In view thereof, we do not find any merit that the statement of the witnesses cannot be taken into consideration in the present trial.
XII. Whether an accused can be identified on the basis of Photographs without conducting any Test Identification Parade?
121. Mr. Bains argued that PW-107 Ravindra Adhikari; PW-7 Chandan Gopal Rai; PW-19 Darmesh Singh Thakur; PW-22 Salim Imtiyaz Ahmed, PW-49 Rahmatullah Shemsudeen Sheikh & PW-76 Vijay Kumar Vishwakarma have identified the accused-Abdul Latif only on the basis of his Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 79 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 black and white photograph, the back of which was got signed by them during the course of investigations. Mr. Bains argued that the signature on the photograph makes the photograph inadmissible in evidence in view of Section 162 of the Code. Any statement, which is signed is inadmissible in evidence. In support of such argument, reliance is placed upon Nirpal Singh & others Vs. State of Haryana (1977) 2 SCC 131; Munshi Singh Gautam Vs. State of Madhya Pradesh (2005) 9 SCC 631; Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1 and that of Bombay High Court in Ranjyotsingh Gurudayalsingh Vs. The State of Maharashtra 2009 Crl. L. J. 2530. It is argued that signature of a witness on a photograph impinges upon the freedom of the witness i.e. to make any statement he likes at the time of trial. But since he has made to sign the photograph, the witness is led to feel that he is required to strict to it, therefore, such process of identification on the basis of signed photograph, not only violates the principle of natural justice, but also express provisions of Section 162 of the Code.
122. On a question of fact, Mr. Sandhu, learned counsel representing the respondent, pointed out that the appellant-Abdul Latif has been identified in Court by PW-6 Mohd. Zafar; PW-23 Krishnan Ramsubbu Yadav & PW-74 Suresh Laxman Bhatnate, whereas he has been identified by PW-7 Chandan Gopal Rai; PW-19 Darmesh Singh Thakur; PW-22 Salim Imtiyaz Ahmed, PW-49 Rahmatullah Shemsudeen Sheikh & PW-76 Vijay Kumar Vishwakarma in Court as well as on the basis of photograph during the course of investigations. It is further argued that the signature of a witness on the photograph is not signature on a statement of a witness recording during the course of investigation and, therefore, it is not hit by Section 162 of the Code. In fact, the photograph is a document and not a statement; therefore, in proof of identification of a document, the witness has signed at the back of the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 80 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 photograph without defacing the front of the same. The witnesses have identified the accused in Court firstly and the identification from the photograph is corroborative evidence. It is submitted that signed statement by itself cannot be read into evidence but if the witness has been examined, then the signed statement as previous statement can be put to the witness to confront him with such statement. But the evidence of the witness in court cannot be discarded only on the basis of signatures on the back of the photograph. Therefore, there is no illegality or irregularity in the process of identification of the accused.
123. In Nirpal Singh Vs. State of Haryana, (1977) 2 SCC 131, the signed statement was recorded during inquest proceedings but such persons were not examined in Court as witnesses. In these circumstances, it was held that the violation of this provision might sometime diminish the value of the testimony of the witnesses when they come to the Court. The issue of identification on the basis of photograph has been examined by the Supreme Court in Munshi Singh Gautam's case (supra), wherein it has been held that the identification test parade does not constitute substantive evidence. They are primarily meant for the purposes of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The substantive evidence is the evidence of identification in Court. The safe rule of prudence Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 81 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 is to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exception, when the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration.
124. In Sidhartha Vashisht @ Manu Sharma's case (supra), PW Shyam Munshi was asked to identify the accused from four photographs. The Investigating Officer asked the witness to sign on the back of the photographs. The said witness refused to do so, but the Investigating Officer gave separate remarks on the back of the photographs and signed them. In the said case, the accused refused to participate in the test identification parade, but it was observed that the Police had little choice but to formally show the photograph to the witnesses and record their statement in that regard. It was also held that the photo identification or test identification parade before the Magistrate are all aides in investigation and do not form substantive evidence. Substantive evidence is the evidence of the witness in the court on oath, which can never be rendered inadmissible on this count.
125. In fact, in Ranjyotsingh Gurudayalsingh's case (supra), the Division Bench of Bombay High Court in respect of identification by means of a photograph summarize the law in the following words:
"21. The position in law which emerges is that:
(i) Identification by means of a photograph is used by crime detecting agencies for the identification of criminals, including those whose illegal activities transcend national and geographical boundaries;
(ii) Such an identification, when made, takes the place of a test identification;
(iii) Showing of a photograph or, when available, more than one photograph during the course of investigation by the Police is to confirm whether the investigation is proceeding in the right Kumar Vimal direction;2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 82
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008
(iv) Basic requirements of procedural fairness must be observed; it would hence be impermissible to adopt a technique such as writing the name of the person underneath the photograph which may lead to the identification of a wrong person as the assailant;
(v) If a witness has furnished identifying features of the assailants during the course of the investigation, this could be confirmed by the Investigating Officer by showing the photographs of the suspect but the Investigating Officer should not first show a single photograph, but should show more than one photograph if available;
(vi) Showing a photograph or photographs to a witness prior to a test identification parade would render the investigation in the T.I. parade meaningless;
(vii) There are no statutory guidelines which hold the field in India in this regard and the Court would have to assess in every case as to whether the procedure which has been followed is basically fair or otherwise.
22. Section 9 of the Evidence Act provides that facts which establish the identity of a person whose identity is relevant, in so far as they are necessary for that purpose. In Ronny Alias Ronald James Alwaris vs. State of Maharashtra, (1998) 3 SCC 625, the Supreme Court held that while the identification of an accused at his trial, is substantive evidence it is, by its very nature, of a weak character. On the other hand, evidence of identification in a test identification parade is not substantive evidence, but is only corroborative evidence which falls in the realm of investigation. Identification in the Court after a long lapse of time render it unsafe to rely upon an uncorroborated piece of such evidence. On the other hand, if a witness is known to the accused in circumstances which lend assurance to the identification in the Court, there is no reason why, identification of the accused in Court should not be accepted. ..... "
126. It has been held that the identification on the basis of a photograph takes place of a test identification parade. One of the procedural impermissibility is of writing the name of the person underneath the photograph. But in the present case, the name/ signatures of the person identifying the accused in the process of identification have been obtained on the back of the photograph. The identification of the accused on the basis of the photograph is not a statement. Privy Council in a judgment reported as Zahiruddin Vs. Empeeror AIR 1947 PC 75 has considered the then pari-Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 83
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 materia provision contained in Section 162 of Criminal Procedure Code 1898.
It was held that if the contravention consists in the signing the statement, then the evidence of the witness signing the statement does not become inadmissible. The Court observed as under:
"9. ..... On the other hand, it was argued for the respondent that a contravention of Section 1162(1), merely affected the value of the evidence and that the High Court had taken the correct view of its effect in the present case. It appears to their Lordships that the effect of a contravention of the section depends on the prohibition which has been contravened. If the contravention consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it does not become inadmissible. There are no words either in the section or elsewhere in the statute which express or imply such a consequence. Still less can it be said that the statute has the effect of vitiating the whole proceedings when evidence is given by a witness who has signed such a statement. But the value of his evidence may be seriously impaired as a consequence of the contravention of this statutory safeguard against improper practices. The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations."
127. The aforesaid judgment has been quoted with approval by the Supreme Court in a judgment delivered by a Bench of four Hon'ble Judges and reported as Niranjan Singh Vs. State of U.P., AIR 1957 SC 142. The Bench held as under:
"16. The decisions of Their Lordships of the Judicial Committee reported in Pulukuri Kotayya vs. King-Emperor AIR 1947 PC 67 and Zahiruddin vs. King-Emperor AIR 1947 PC 75 lay down that a breach of Sections 162 and 172 of the Code does not amount to an illegality. If therefore such an omission could not vitiate a trial, it is all the more reasonable that a failure to conform to a rule of conduct prescribed by the State Government on police officers cannot in any way interfere with the legality of a trial."
128. In another judgment reported as State of U.P. Vs. M.K. Anthony, (1985) 1 SCC 505, the Supreme Court held that signatures on a statement does not render it as inadmissible in evidence. It was observed as under: Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 84
CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 "9. ........If the investigating officer did obtain the signature of Nair an intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the Code of Criminal Procedure but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary. Assuming that Nair's admission that his signature was obtained on the statement recorded by the investigating officer on March 1, 1973, is correct, it does not render his evidence inadmissible. It merely puts the court on caution and may necessitate in-depth scrutiny of the evidence. But the evidence on this account cannot be rejected outright. Section 162 of the Code of Criminal Procedure does not provide that evidence of a witness given in the court becomes inadmissible if it is found that the statement of the witness recorded in course of the investigation was signed by the witness at the instance of the investigating officer. Such is not the effect of contravention of Section 162 Code of Criminal Procedure".
129. The witnesses have identified accused on the basis of the photographs produced before them. The witnesses have not taken help of the photographs while giving evidence. The statements of the witnesses are in respect of identifying the accused only when shown the photograph somewhat similar to prove a document. Still further, certain witnesses were known to the accused as they have been meeting him at different times, whereas certain witnesses have met the accused Abdul Latif once or twice. Therefore, the statement of the witnesses is admissible on the basis of identification based on photographs.
130. From the perusal of the aforesaid judgments, we find that the signed statement recorded by the Investigating Officer during the course of investigation under Sections 162 of the Code cannot be used by the witness to give evidence in court. It is the statement in court which is primary evidence, whereas the reliability and creditability of the witness has to be tested on the known parameters, but the signed statement cannot be ignored only for the reason, that the photograph carries signatures of the witness at the back of the print. The statement of the witness before the Court cannot be discarded only Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 85 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 for the reason that in the process of identification, the witness has signed a document at the back of it. We will deal with the evidence of the witnesses later while discussing the evidence on record.
XIII Whether the evidence on record corroborates the confessionals statements of the accused either generally or broadly and thus the confessions, though retracted earlier can be relied up as corroborative of the prosecution evidence?
131. The learned counsel for the parties at wide divergence in respect of the nature of evidence produced which can be said to be corroborative of the prosecution evidence on the wide spectrum of the confession of the accused. Learned counsel for the Appellants have argued that the so called corroborative evidence is not incriminating as such parts attributed to the appellant are normal activities of any individual. Whereas, the learned Counsel for the prosecution argued that the conspiracy was hatched and given shape in countries with which the diplomatic relations of India cannot be said to good. It is argued that conspiracy has taken birth in Pakistan and conspirators have moved into give shape to the conspiracy, in Bangladesh, Afghanistan, Nepal and Dubai. The letter rogatory was sent to obtain information from Bangladesh and Dubai vide order dated 06.07.2001 passed by the learned trial Court in terms of Section 166-A of the Code, but no response has been received. However, the prosecution is able to bring on record, corroborative and circumstantial evidence of the transactions taken place in India and to some extent in Nepal.
132. In terms of Section 166-A of the Code, the evidence collected and transmitted to India is deemed to be evidence collected during the course Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 86 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 of investigations under Chapter XII of the Code. But it does not preclude the investigators in India to obtain information from other countries through normal diplomatic channels. It is thus submitted that information collected from Nepal is through the diplomatic channels and sent to India, which has been produced before the trial court. The original documents collected by the Nepal Police were produced before the trial court by PW-110 Padam Raj Joshi, Sub Inspector in CID Kathmandu. The prosecution has examined some of the Nepal Nationals as witnesses before the learned trial court as well.
133. 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 by 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. Since the direct evidence to prove the conspiracy is rare, therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. This is so observed by the Supreme Court in Ram Narayan Popli Vs. CBI, (2003) 3 SCC 641. Therefore, the relevancy and admissibility of evidence collected by the prosecution leading to the conspiracy of hijacking of an Indian Airlines flight, requires to be examined in respect of each of the accused.
Re: Abdul Latif
134. The confessional statement of Abdul Latif Ex.PW-9/C made under Section 164 of the Code was recorded by PW-9 Shri A.S.Virk, the then Judicial Magistrate, Patiala. The confessional statement excluding the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 87 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 satisfaction of the learned Magistrate that confessional is voluntary, is almost in 36 typed pages and in double space on A-4 size paper. It is argued that such confessional statement has been retracted as the Appellant Abdul Latif in his statement recorded under Section 313 Cr.P.C. stated that he never made any statement under Section 164 Cr.P.C. We find that such bald denial cannot be accepted in the face of testimony of PW-9 A.S.Virk, who recorded the statement of the accused after giving him time to reflect. PW-120 M.Narayanan, the Chief Investigating Officer has been suggested that CBI has tortured him, but except suggestion there is no evidence of any torture. Therefore, we find that so called retraction of confessional statement is only an attempt to avoid the consequences of such confession, which is also found to be on account of legal advice. The retraction has also not come at the earliest opportunity. Mere fact that the accused was in custody of CBI from 23.03.2000 cannot be said to be result of threat or coercion before the confessional statement was made on 04.04.2000. The reason to make confessional statement is good conduct of the investigating team and that he was mislead by certain persons, who prompted him to these activities.
135. But having said so, the fact remains that whether the prosecution has been able to corroborate the confessional statement suffered by Abdul Latif substantially and whether the evidence led by the prosecution proves that the appellant Abdul Latif was part of conspiracy of hijacking of the aircraft in question and, thus, with the aid of Section 120-B of the IPC, he is liable to be punished for the acts committed by the hijackers including the act of murder of Rupin Katyal; inflicting of grievous injuries to Satnam Singh and also of putting the passengers and crew members under fear and threat apart from actual act of hijacking of aircraft.
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136. A perusal of the confessional statement of Abdul Latif (Ex.PW- 9/C), shows that as to how he came into the contact of the militants; on their incitement went to Pakistan for participation in Jehad; imparted physical training as well as training to handle the explosives; his legal and illegal visits in different countries i.e. Bangladesh, Nepal and Pakistan; arrangements made by him for the stay of the hijackers in India and Nepal; preparation of forged documents such as driving licences and passports for the hijackers; and of being part of conspiracy to hijack Indian Airlines flight to seek release of Maulana.
137. Though such confessional statement of Abdul Latif is lengthy and part of the statement in respect of activities in Bangladesh and Pakistan have remained un-corroborated, but some of the activities in India and Nepal as well as the telephonic conversations stand corroborated. Such evidence is sufficient to prove the planning and execution of the conspiracy to hijack flight and to kill passengers, it the demands are not met in which the appellant Abdul Latif was an active participant.
138. Firstly, the address given by him in the beginning of his statement i.e. Flat No.104-A, Wing Sani Shopping Centre, Jogeshwari West, Mumbai is stated to have fallen to his share in a family settlement in August/September, 1997. Such fact is corroborated by PW-49 Rahmatullah Shemaudeen Sheikh, Liftman, who has identified the appellant Abdul Latif present in Court and stated that he sometimes used the lift, which he was operating in the said building. He also identified the said Abdul Latif in a photograph Ex.PW49/A shown by the CBI during investigation as the person, who sometimes used to come on his lift. This fact is relevant to find out the truthfulness of the statement made.
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139. The stay of Abdul Latif in Nizami Hotel, Nizammudin, Delhi in September, 1995 after returning to India from Saudi Arabia stands proved from the statement of PW-6 Mohd. Zafar, nephew of the owner and the person, who used to look after the Guest House. He identified the accused in Court and also proved the entry "Ex PW6/A-1" regarding his stay on 27.09.1995 in the Guest Register Ex.PW6/A. PW-92 Mohinder, Government Examiner of Questioned Documents, has found that the signatures of the person staying in the Guest House are that of appellant-Abdul Latif. Ex.40/A is the document produced by PW-40 Haidar Ali, Manager of the Nizami Hotel, regarding stay of the appellant Abdul Latif at Nizami Hotel from 24.02.1997 to 26.02.1997 as stated by the appellant in his confessional statement.
140. PW-26 Nadeem Amin, partner in the Aminia Guest House, Zakaria Street, Calcutta. The appellant Abdul Latif stayed in that hotel from 06.09.1998 to 07.09.1998 disclosing the same address in the register, as given by him in the beginning of his confessional statement. PW-8 Mohd. Shaw Nawaz Aalam, receptionist at Aminia Guest House and New Aminia Guest House proved guest register PW8/A and the entry of stay (Ex.PW8/A1) of the Appellant along with Shaheed Akhtar (A-3) from 01.11.1999 to 02.11.1999. He identified Shaheed Akhtar from the photographs Ex P-1 to P-5 shown by the prosecution. We have compared signatures on all the Registers and from the naked eye, we find that it bears the signatures of the appellant. The signatures on the hotel registers, as mentioned above, were also compared by PW-92 Mohinder Singh, Government Examiner of Question Document, who has found that the signatures on the register of hotels are that of the appellant Abdul Latif.
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141. PW-23 Krishnan Ramsubbu Yadav, brother of R. Murugan Yadav - owner of flat No.B-11, Madhav Building, deposed that Paneer Selwan, a Contractor brought two persons to him for getting the said flat on rent and one of them was Javed A. Siddiqui, whereas the name of other person was Darmesh (PW-19), who was also an agent. The part of the statement that he (Abdul Latif) took a flat on rent in Madhav Building, Opposite Oshiwara in Goregaon West with fictitious name of Javed Siddiqui stands corroborated from such statement. He also proved the agreement Ex.PW23/A, which was signed by his brother in his presence. He also deposed that two persons were seen by him in that flat besides Javed Siddiqui out of which one person was living there and the other was seen by him 2/3 times. After pointing out towards Abdul Latif, the said witness stated that he identified himself as Javed A. Siddiqui to whom the flat was rented out by him and his brother. He also proved the photograph of that person, who had come on the first day, as that of Abdul Latif as Ex.PW-23/1. PW-19 Darmesh Singh Thakur, Property Consultant, also identified the appellant Abdul Latif as Javed Siddiqui deposed that he along with Mr. Paneer hired a flat in Madhav Building for Javed Siddiqui in March, 1999. He further deposed that after 2/3 months, Javed Siddiqui again contacted him and asked to hire some other flat in Jogeshwari side, as the flat in Madhav Building had not suited him. He further deposed that since he had no direct link in Jogeshwari side, he contacted Al Siddiqui, a Property Agent in Jogeshwari and got a flat in Golden Soil Apartment, Jogeshwari for Javed Siddiqui. He also proved the rent agreement Ex.PW19/A and photograph Ex.PW19/B as that of Javed Siddiqui. PW-76 Vijay Kumar Vishwakarma, Watchman also identified Abdul Latif, who was known as Javed Siddiqui, and stated that he used to come in Madhav Building and reside in Flat No.B-11. He also identified the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 91 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 appellant from the photographs Ex.PW-76/A and Bhola (Accused No.4) from photograph PW-76/C, as the person, who used to reside in such flat. He further stated that in December 99, before 20.12.1999, three persons came to the flat with two big bags and one suitcase. He helped them to take the luggage to flat No.11. Bhola was one of the persons, who asked his help.
142. PW-12 Dilip T. Patil, Police Inspector, Crime Detection Branch interrogated the appellant Abdul Latif in Bank Robbery case of Borivali on 30.12.1999. In pursuance of his disclosure statement, he raided the office of Seven Travels and seized 10 passports, 51 passport particulars forms in different names, 85 cash receipts issued by the passport office, 7 blank birth certificates, zerox copies of birth certificates, three ready birth certificates of three persons, one marriage certificate of Qazi of Mumbai, blank school leaving certificates of different schools, zerox copies of school leaving certificates, zerox copies of ration cards and six registers maintained by Suresh Bhatnate (PW 74), owner of Seven Travels for the period from 1994- 1999. Out of 51 passports particular forms, the forms of hijackers namely A-3 Shahid Akhtar Sayeed; A-4 Mistri Zahur Ibrahim and that of A-2 Sunny Ahmed Qazi were also taken into possession. He further deposed that during investigation, Suresh Bhatnate identified Abdul Latif as Imran. He on the basis of disclosure statement of Abdul Latif further stated that he verified that grant of driving licences to the five hijackers from three different motor training schools namely Vaishali Motor Training School, Jogeshwari; Pragati Motor Training School, Nagpada (PW 20 I.U.Chunawala and PW64-Yusuk Khan) and Silver Motor Training School, Jogeshwari (PW 50- M.A.Ismail) and in pursuance of thereof, he verified the same from the office of R.T.O., Bombay Central (PW 28- Anil Gajanan Sankhe relating to the record of (A-2) as Ex.PW 20/M and of A-3; PW 41 P.V.Khanolkar, who dealt with driving Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 92 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 licence application of A-2 and A-4; and PW 45 S.R.Burgir); from RTO Andheri (PW 29 Sudhir Prabhakar Rao Choudhary in relation to the driving licence of A-5) and collected related documents and handed over the same to the CBI on 21.20.2000 - Ex.PW12/J.
143. PW-13 Adi Ratan Saw Mody, an officer from State Bank of India, Commercial Branch is a witness of recovery of the documents from travel agent Seven Travels vide Ex.PW12/A such as the passport particular forms of (A-2) Sunny Ahmed Qazi (Ex.PW12/F); (A-3) Sayeed Ahmed Shahid (PW12G); and A-4 Mistri Zahur Ibrahim (Ex.PW12/H) with their photographs on it. PW 11 Suresh Chandulal Shah is the other witness of the recoveries.
144. PW-74 Suresh Laxman Bhatnate deposed that Abdul Latif, present in Court, came to him in May 1999 for filling of the passport applications and told his name as Imran. He deposed that application form of A-4 as EX PW 30/H; of A-3 as Ex. PW30/G; of A-2 as Ex. PW 30/F; of A-5 as Ex.PW30/D; were given to him by Imran with photographs and other documents but Passports were not issued on these forms though submitted to the passport office. The statement of the Abdul Latif that he has managed passports for the Shakir (A-5) and Ibrahim Athar (A-1) from Seven Travels on the forged documents such as ration card, school leaving certificates stands corroborated from the evidence discussed above.
145. PW-10 Vinayak Vithoba Sawade, who raided Flat No.707, 7th Floor, B-wing, Golden Soil Cooperative Society, Jogeshwari (West) in connection with Borivali Bank Robbery case, deposed that the door of the said flat was opened by Bhupal Man Damai (A-7) and after entering into hall, he got recovered a shoulder bag containing certain documents. He also Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 93 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 recovered one black colour brief case containing one pistol loaded with four cartridges; Indian, Nepali & Pakistani currency; passports and some other documents. He also proved the recovery of four passports Exs.PW-10/A to PW-10/D. He also deposed that passport Ex.PW-10/A is in the name of Siddiqui Javed Amjad while the passport Ex. PW-10/D is in the name of Shekh Ahmed Ali Mohammad Ali. Both these passports have the same photograph although the names and other particulars i.e. date of birth and addresses are different. He also conducted the personal search of Bhupal Man Damai and got recovered a purse containing one railway ticket of 25.12.1999 from Gorakhpur to Bombay and some Indian, Nepali & Pakistani currency. It has come on record that passports Exs.PW-10/A and PW-10/D carry the photograph of Ibrahim Athar (A-1) whereas passport Ex.PW-10/B is of Shakir (A-5) in the name of Farooq Abdul Aziz Siddiqui.
146. PW-30 Kutubdin Gafur Shah from the office of Regional Passport Office proved the passport Ex.PW10/D of Shekh Ahmed Ali Mohammad Ali (A-1) and the connected application forms Ex.PW-30/A; Passport No.B-0646681 Ex.PW-10/A on the application form Ex.PW-30/B to Saddiqui Javed Amjad (A-1); Passport No.A-1862893 to Josaf David Peter (Ex.PW-10/C) on application form Ex.PW-30/C and Ex.PW-10/B passport to Faruq Abdul Aziz Siddiqui (A-5) on the application Ex.PW-30/D. He also proved passport Ex.PW-30/E and its application form as Ex.PW-30/F in the name of Qazi Sunny Ahmed (A-2); application form in the name of Shaheed Akhtar Sayeed (3) as Ex.PW-30G; application form in the name of Mistri Zahur Ibrahim (A-4) as Ex.PW-30/H.
147. Ex.PW-10/D was issued against Entry No.1251 in which reference of Imran is made. The said entry is in respect of the passport of Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 94 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Ibrahim Athar. Ex.12/B-E is the register of Seven Travels, containing the names of the four hijackers in five different entries. Entry Nos.1259 and 1269 are of A-1 in two different names. Such entries contain the reference of Imran along with his pager and mobile numbers. Ex.PW10/A is the passport of Ibrahim Athar in the name of Javed A. Siddiqui and Ex. PW10/D issued against entry No.1251 in which reference of Imran is made. Pursuant to the aforesaid entries passport Ex.PW10/A was issued in the name of Javed A. Siddiqui to Imran Athar. The forged ration card is Ex.PW35/A, the entry in the register of the Seven Travels. The reference of Imran with his contract number is mentioned therein.
148. Likewise, Passport Ex.PW30/A; Passport Application Ex.PW- 30/A; forged ration card Ex.PW36/D and entry 1251. Another passport Ex.PW10/B in the name of Farooq Abdul Aziz Siddiqui, but of A-5, is on the basis of passport application Ex.PW-30 forged ration card Ex.P35/A recovered from Golden Soil Apartments.
149. PW-39 Dinesh Sharma, Superintendent of Jail, Court Bhalwal, Jammu proved letter written by him in respect of Maulana as Ex.PW-39/B as well as three FIRs related to the escape of prisoners from the jail as Exs.PW- 39/B1 to PW-39/B3. Such is the statement of the appellant that he came to know from Amjad in the month of May/June, 1999 that Akhtar, Ashraf and Yusuf Azhar have gone to Jammu to facilitate escape of Maulana through tunnel in jail to Pakistan Border. PW-84 Kulbir Chand Handa, Inspector SHO PS Udhampur proved that while checking and frisking the vehicles of suspects at Indra Chowk Jammu on 12.06.1999, Akhtar and Yusuf Azhar were taken in to custody vide DDR Ex PW 84/A. Two persons are out of three person who have gone to Jammu to facilitate escape of Maulana. He Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 95 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 also stated that Hotel Manager assured the creditability of such person, which led to their release. Such facts are part of the confessional statement of the appellant including intervention by the Hotel Manager at their instance.
150. PW-19 Darmesh Singh Thakur, Property Consultant identified the appellant Abdul Latif as Javed Siddiqui. He stated that since he had no direct link in Jogeshwari side, he contacted Al Siddiqui, a Property Agent in Jogeshwari and got a flat in Golden Soil Apartment, Jogeshwari for Javed Siddiqui. He also proved the rent agreement Ex.PW19/A and photograph Ex.PW19/B as that of Javed Siddiqui. Thus the hiring of Flat No.707, B- Wing, Golden Soil Apartments, Raj Nagar, Jogeshwari West, Mumbai, in fictitious name of Javed Siddiqui in the month of June, 1999 as disclosed by the appellant stands corroborated. It is said flat from where the huge recoveries were effected and Bhupal Man Damai was arrested. He has further stated that he along with Yusuf Azhar started residing in the said flat. It is at the instance of Yusuf Azhar he had gone to Delhi to obtain visa for Bangladesh and that he stayed at Nizami Hotel, Delhi on 27.6.99 in the name of Vipin Bharat Desai, the name in which he was having a passport. The signatures in the register have been proved to be of the appellant by PW-92 Mohinder Singh. The stay of the appellant in Nizami Hotel as well as his identification is proved by PW-6 Mohd. Zafar. The signatures on the register are proved to be that of the appellant-Abdul Latif by PW-92 Mohinder Singh, Government Examiner of Questioned Documents.
151. PW-20 Ismile Amar Chunewala, owner of the Pragati Motor Training School, deposed with regard to the procurement of driving licence for Qazi Sunny Ahmad (A-2). Such testimony of PW-20 Ismile Amar Chunewala is corroborated by PW-4 Mohd. Yusuf Khan, Manager of the said Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 96 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 firm. Form No.2 along with photographs has been proved as Ex.PW20/A; photograph on Form 1-A is Ex.PW20/B; photograph on the affidavit (mark PW20/D) given in respect of proof of residential address is PW20/C; counterfoil of receipt Ex.PW20/E, deposit slip given by the RTO is Ex.PW- 20/F; learner's licence is Ex.PW20/H, Index card is Ex.PW20/J; Register of Form 14 containing details in respect of Qazi Sunny Ahmad is Ex.PW20/K and Form-4 is Ex.PW-20/M. PW-64 Mohd. Yusuf Khan has identified his writing and signatures on the documents. PW-28 Anil Gajanan Sankhe, Senior Clerk in R.T.O. Office, Central Tardeo, Mumbai; PW-41 P.V.Khanolkar, Inspector Motor Vehicles, R.T.O.Office, Ratna Giri (Maharashtra) & PW-45 S.R.Brugir also deposed that learning and permanent driving licence to Qazi Sunny and Mistri Zahur Ibrahim were issued through Pragati Motor Training School. It is the said driving licence, which Qazi Sunny Ahmad (A-2) carried and used for purchase of air tickets. Ex.PW12/F is the passport particular form of A-2 recovered from Seven Travels, as deposed by PW-74 Suresh Laxman Bhatnate. PW12/D is the entry in the Seven Travels Register at Sr.No.1304 with reference to Imran. PW-74 Suresh Laxman Bhatnate identified appellant Abdul Latif as Imran in the Court. Such passport particular form is accompanied with forged ration card Ex.PW36/A. Passport Ex.PW30/E was recovered from the office of Regional Passport Officer. Similar is the evidence in respect of Zahoor Ibrahim Mistri (A-4). Form-2 was filled in, in the presence of PW-20 Ismile Umar Chunewala. Zahoor Ibrahim Mistri (A-4) applied for training for a L.M.V.(N.T.) as well as motorcycle in his form Ex.PW20/R. He deposed that Zahoor Ibrahim Mistri (A-4) has given his passport in respect of proof of residence and date of birth. He identified the photograph of A-4 on Form-14 (Ex.PW20/W). He also deposed that after filling the four left over columns of Form No.14, the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 97 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 driving licence was given to Mistri Zahur Ibrahim and his signatures were obtained. He further deposed that he cannot tell the Nationality of Qazi Sunny and Mistri Zahur Ibrahim, as they had got admission in their school as citizens of Bombay. The part of the confessional statement that 'after arranging for the stay of Qazi Sunny Ahmad @ Burger in the flat at Golden Soil Apartments, he (Abdul Latif) contacted Pragati Motor Driving School, Naagpara for obtaining the driving licence for Qazi Sunny Ahmad', stands corroborated from the above testimony. PW-64 Mohd. Yusuf Khan, Manager of Pragati Motor, corroborates the testimony of PW-20 Ismile Umar Chunewala and also proved the applications of Qazi Sunny Ahmed and Mistri Zahoor.
152. PW-35 S.R.Gujjar was the officer working as Rationing Officer since July 1997. He has produced application form of Farrukh Abdul Aziz (A-
5) as Ex.PW30/D. PW-36 S.C.Suryavansi, Rationing Officer, who after seeing the passport application form Ex. PW12/F and Ex.PW.30/F of Sunny Ahmad Qazi (A-2) deposed that the said ration card mark PW36/A attached with passport particular form is a forged document and that the address mentioned in the same falls in the area under his jurisdiction, but the same has not been issued by their office. Similar is his statement in respect of ration cards attached with passport application forms Ex.PW 12/G and Ex.PW 30/G of Shaheed Akhtar Sayeed (A-3); Ex.PW12/H and Ex.PW30/H of Mistri Zahoor Ibrahim (A-4); and Ex.PW 30/A of Ahmed Ali Mohd. Ali Sheikh (A-
1) as the forged one.
153. PW-18 Nand Lal Nihalani, Manager, Trans Mobile System dealer of Hutchison Max Telecom Ltd. deposed that document with card number 64879, Mark PW18/A, was given to Patel Dairy and the card number Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 98 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 982011317 through document Mark PW18/B was given to A-1 Plastic 18. He further deposed that Aziz Imtiaz of A-One plastic has not handed over the Terms and Condition form to them. PW-22 Salim Imtiyaz Ahmed, is brother of Aziz Imitiaz Ahmed, who is running business in the name and style of Patel Dairy Ice-Cream Parlour as well as A-One Plastics. He proved the sale of ACE Card No.64879 and one ACE refill vide the invoice as Mark PW- 18/A on 20.07.1998 to Abdul Latif-accused present in Court. Another SIM card was sold to Abdul Latif vide invoice dated 16.9.1999 Mark PW18/B pertaining to supersaver No.9820110317. He deposed that he knows Abdul Latif. Even in the absence of formal proof of the sale, the un-rebutted oral testimony of sale of two SIM cards i.e. 9820110317 and 9820164879 to the appellant, stands established. Such purchase of SIM cards is part of the confessional statement of the appellant.
154. PW-32 Maj. P.A.Nayak is the person representing telecom company, whose SIM cards were in use by the appellant. He deposed that country code '98' is affixed before each Cell Phone Number and that these print-outs relate to the period from January, 1999 to September, 1999 and from September, 1999 to January, 2000. He has given 21 pages of the print out of the calls to the prosecution. 10 pages i.e. from PW 32/A1 to A-10 relate to phone No. 20110317; print outs Ex.PW32/A11 to A/12 relate to mobile No. 20110945; and the print outs Ex.PW32/A13 to A/21 relate to mobile No.20164879. A perusal of the print outs A-1 to A-10 shows that 12 calls were made on Abdul Rauf's mobile number i.e. 0092300248765 during 24.12.1999 to 25.12.1999 and 17 incoming calls were received from Kathmandu during 20.11.1999 to 24.12.1999 and two outgoing calls were made to Kathmandu. PW-109 and PW-110, the police officials of Nepal corroborated the said fact also.
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155. In respect of prints out Exs. A-11 to A-12, ten calls were made on Abdul Rauf's (A-9) mobile during 22.12.1999 to 27.12.1999 and three incoming calls from Kathmandu and one outgoing call to Kathmandu. In respect of the third Mobile Number of Abdul Latif, as disclosed in his confessional statement, various calls have been made to different countries such as Pakistan, Bangladesh, Nepal, Saudi Arabia and United Kingdom before, during and after the hijacking. Thus, the statement made by the appellant Abdul Latif that he was in touch with Abdul Rauf on his mobile before, during and after the hijacking, stands corroborated. Ex.PW109/A31 shows that six calls from Nepal were received by the appellant on 24.12.1999. The appellant also made a call at 08.36 hours to Kathmandu and received two calls on 24.12.1999 at 12.20 hours and 12.23 hours. One call was received from the Airport's telephone booth on 24.12.1999 at 14.25 hours. The said fact corroborates the statement of the appellant that he received phone calls from Ibrahim Athar (A-1) and also the call that flight is delayed.
156. PW-7 Chandan Gopal Rai @ Ramesh Yadav deposed that Abdul Latif was working as a cashier when he joined Hotel Café Bahar in the year 1995. The said hotel is owned by Abdul Kaim, a relation of Abdul Latif. After working there for 3 years, he joined Hotel Café Alif. He deposed that Abdul Latif used to come to Hotel Café Alif to take meals. One day, Abdul Latif sought his assistance to help his two persons, who have come from Nepal with electric goods and apprehended by the Bengal police. He was told to go to Malda with Rs.2000/- as the necessary expenses, he being conversant with Bengali language. Thereafter, he reached Malda in the evening of 06.10.1999 after boarding Geeetanjali Express on 4.10.99. He stayed in Hotel Navaruna near Railway Station, Malda. Then he telephonically contacted Abdul Latif, but it was on the third day, he received a telephonic call from Abdul Latif, Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 100 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 who told him that those two persons would come at about 12 noon or 3.00 PM. He further deposed that those two persons met him at about 3.00 PM. He deposed that on his asking, one of them told his name as Rajesh Verma (A-5), whereas the name of second person, he did not remember. Rajesh Verma (Accused No.5) gave him Rs.500/- and asked to purchase three tickets for Katihar. Thereafter, they all boarded the train from Malda at about 6.00 PM and reached Katihar at about 11.00 PM on the same day. From Katihar, they boarded train for Patna and reached Patna at about 1.00/11.00 AM on 11.10.1999. They went to Hotel Central Patna, where Rajesh Verma filled the forms etc. for booking one room. Then they all went to Railway Station Patna, where Rajesh Verma purchased three tickets for Bombay. In the evening, Rajesh Verma cleared the accounts and thereafter they left the hotel and reached Railway Station, Patna at about 11.00 PM. On reaching Bombay on 14.10.1999, Rajesh Verma gave a telephonic call to Abdul Latif informing that they had reached Bombay. He further deposed that after few days, Abdul Latif again met him and asked him to meet him after the duty hours in Hotel Taskan again. After reaching Hotel Taskan, Abdul Latif told him not to tell anybody about the arrival of those two persons in Bombay. After few days, Rajesh Verma came to his hotel accompanied by some other person to take their meals. He further deposed that when he went to their table to take the order, he identified Rajesh Verma, but Rajesh Verma told him to mind his own business. He also proved the photographs Ex.P-19 as that of Rajesh Verma (A-5); Ex.P-21 as that of a person (A-3), who met him at Malda and accompanied him to Bombay; Ex.P-22 as that of Sunny Ahmed Qazi (A-2), who had come along with Rajesh Verma to take meals in his Hotel; & Ex.P20 as that of Abdul Latif. He also deposed that his statement was recorded before a Magistrate in Tees Hazari Courts. Such evidence corroborates the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 101 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 confession of the appellant when he stated that PW & was a waiter in a café owned by his cousin and that he escorted two militants to Bombay.
157. In his cross-examination, he stated that he has not seen Abdul Latif with Rajesh Verma or other person, whose photographs have been identified by him today in the Court. In the further cross-examination on behalf of Abdul Latif, he stated that CBI has not taken him to West Bengal to verify his previous village or record and that CBI has not taken him to Malda or Patna from where he had brought those two persons. He denied the suggestion that he never worked in Hotel Café Alif or if Abdul Latif had never met him in that Hotel or at any other place or Hotel.
158. PW-50 Mukhtiar Ahmed Ismail is Manager in Silver Training School, Jogeshwari West, Mumbai. He proved the form of Rajesh Verma (later on identified as Shakir @ Farooq Abdul Aziz Siddiqui- A-5) dated 16.10.1999 Ex.PW-50/A. He asked Rajesh Verma (A-5) to get his affidavit attested from a Magistrate, if he is not having any residential address or proof of age etc. Rajesh Verma started learning driving from 19.10.1999 till 19.11.1999. He also proved the affidavit as Ex.PW-50/B; Index Card as Ex.PW50/C; Form No.4 Ex.PW-50/D; & Form No.5 PW-50/E as well as the photographs attached on these documents as that of Rajesh Verma. ExPW29/C and ExP29/B are the learners licence issued to him, one for four wheeler and another for two wheeler. The statement of the appellant that Rajesh Verma contacted Silver Travels himself stands corroborated. PW-29 Sudhir Prabhakar Rao Choudhary, Inspector of Motor Vehicles, RTO, Mumbai (West) deposed with regard to the issuance of learner as well as permanent driving licence to Rajesh Verma through Silver Motor Training School. All the aforesaid documents are of the address of the flat of Madhav Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 102 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Building taken on rent by the appellant. The driving licence issued to Rajesh Verma was used by him while purchasing air ticket of hijacked flight and at the time of making entry at Kathmandu Airport.
159. PW-74 Suresh Laxman Bhatnate has proved the entry in respect of Shahid Sayeed Akhtar (A-3) at Sr.No.1323 (Ex.PW12/E); the passport particular form of Shahid Sayeed Akhtar (A-3) as PW-12/G and passport application form as PW30/G, wherein a reference of Imran is made; the forged ration card as Ex.PW36/G enclosed with Ex.PW-30/G. The statement that he contacted Seven Travels in respect of passport of Doctor @ Sayeed Shahid Akhtar (A-3), stands corroborated again from the testimonies of PW- 12 Dilip T. Patil, who proved the entry No.1323 in the register Ex.PW-12/E as well as application form Ex.PW-12/G seized by him from the office of Seven Travels in respect of Bank Robbery case of Borivali.
160. The entry of Zahoor Ibrahim Mistri (A-4) in the register recovered from Seven Travels at Sr.No.1324 is proved by PW-74 Suresh Laxman Bhatnate as PW12/E. The passport particular form and the passport application form in which reference of the appellant-Abdul Latif as Imran is mentioned are Ex.PW12/H and PW-30/H respectively; the forged ration card enclosed with Ex.PW-12/H is Ex.30/C, whereas the forged ration card enclosed with Ex.30/H is Ex.PW36/F. The passport of A-4 could not be procured.
161. The statement that on the instructions of Abdul Rauf to reach Kathmandu, he along with Doctor @ Sayeed Shahid Akhtar (A-3) reached Calcutta on 01.11.1999 through Indian Air Lines Flight; stayed in Aminia Hotel, Calcutta and in the evening of 02.11.1999 boarded a train from Sealdah Railway Station for Jalpaiguri, West Bengal, stands corroborated from the Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 103 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 statements of PW-21 Rajesh Poddar, Director, Right Choice Tours & Travels, who proved the document Ex.PW21/A relating to booking of two air tickets in the name of the appellant and A-3 from Bombay to Calcutta for 01.11.1999. The stay of the appellant and that of A-3 in Calcutta is proved by PW-8 Mohd. Shah Nawaz Aalam, who was working as Receptionist in Aminia Guest House and New Aminia Guest House Calcutta by producing register (Ex. PW8/A) and the entry (Ex.PW8/A1) on page 24 of the said register. As per such entry, the appellant and Shaheed Akhtar s/o Nazir Akhtar (Accused No.3) had stayed in the Hotel on 01.11.1999 and left on 02.11.1999 at 5.30 PM for Mumbai. He also identified Shaheed Akhtar (A-3), when his photograph was shown to him by the CBI when photographs Exs.P- 1 to P-5 were shown to him as the person who stayed along with Abdul Latif. PW-26 Nadim Amin, who is a partner in Aminia Guest House and New Aminia Guest House, Calcutta, deposed that they maintained separate register for Indian Customers and proved the same as Ex.PW26/A. He also proved the register Ex.PW8/A, as that of Aminia Guest House, but related to different period.
162. PW-37 Sudipta Kumar Sinha, Assistant Commercial Controller, Eastern Railway Malda, proved the reservation of tickets in Darjeeling Mail (3143) in the name of the Appellant and Mr. Shahid from Sealdah to New Jalpaiguri for 02.11.1999 reaching Kathmandu by road on 04.11.1999. The reservation slip Ex.PW37/A contains the signatures of Abdul Latif and address as 707-B, Golden Soil Apartment, Bombay. As per PW-92 Mohinder Singh, the Government Examiner of the questioned documents, the signatures on the reservation slip is that of the appellant. PW-42 has proved the railway reservation chart Exhibit PW42/A dated 02.11.1999 showing the names of the passengers as the appellant and Shahid Sayeed. The Guest Registration Card Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 104 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 of Imperial Hotel Kathmandu dated 04.11.1999 in the name of the appellant with address of 707, B, Raj Nagar, S.V.Road, Mumbai as Ex.PW-109/A21 has been produced by PW-109 Lalit Bahadur Chand, Sub Inspector, Special Task Force, Nepal Government, Kathmandu. PW-110 Padam Raj Joshi of Nepal police has brought the original documents taken in possession from Hotel Imperial. As per the testimony of PW-92 Mohinder Singh, Government Examiner of Question Document, the handwriting and signatures on the guest registration card are proved to be that of the appellant. From such evidence, the statement that he traveled to Calcutta on Indian Airlines flight, stayed in Aminia Hotel, Calcutta, travelled to Jalpaiguri and stayed in Imperial Hotel Kathmandu on 04.11.1999 along with Doctor (A-3) stands corroborated.
163. PW-109 Lalit Bahadur Chand, Sub Inspector, Special Task Force, Nepal Government, Kathmandu produced the Guest Registration Form of Tibet Guest House in Thamel, Kathmandu as well of Hotel Tilicho, Kathmandu dated 25.11.1999. The appellant has given the same address i.e. 707 B, Raj Nagar, S.V.Road, Mumbai, which was given by him in Imperial Hotel, Kathmandu, as Ex.PW-109/A17. PW-92 Mohinder Singh, Government Examiner of Question Document, the handwriting and signatures of Abdul Momin are again proved to be of the appellant. It is thus proved that the appellant was with the hijackers on the date and time disclosed in his confessional statement.
164. Ex.PW-110/G2, is the office copy of the one air ticket purchased by the appellant for travelling on 25.11.1999 from Kathmandu to Mumbai of Royal Nepal Airlines issued in the name of Momin on 22.11.1999. PW-110 Padam Raj Joshi, Sub Inspector, Nepal CID, Police Headquarters, Kathmandu produced office copy of one air ticket issued by Sona Shreshta, who used to Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 105 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 issue Air Tickets while working for Everest Travels. She identified the appellant as the person, who purchased the ticket for travelling on 25.11.1999 from Kathmandu to Mumbai by Royal Nepal Airlines. He also proved the certified copy of the said Air Ticket Ex.PW-110/G2 issued in the name of the appellant. Thus, the statement of the appellant that he came back to Mumbai alone on Royal Nepal Airlines flight on 25.11.1999 stands corroborated by the evidence produced by the prosecution.
165. PW-94 P.M.Rao, Chief Reservation Supervisor, Lok Manya Tilak Terminus, Mumbai, handed over the reservation chart of Train No.1015 Down Kushi Nagar Express leaving Lokmanya Tilak Terminus on 01.12.1999 for Gorakhpur Junction to the CBI vide recovery memo Ex.PW-94/A. He also proved the Reservation Chart as Ex.PW-94/B, and that as per this reservation chart, one Momin and Shakir (A-5) travelled on seat Nos.34 and 35 from Lokmanya Tilak (Kurla) Terminus to Gorakhpur. PW-106 Kamal Shresta, Receptionist, Swoniga Hotel, Kathmandu produced the guest register ExPW106/A. The registration card dated 04.12.1999 (Ex.PW106/F and Ex.PW109/A-19) are in the name of Vijay Gupta, the handwriting of which has been confirmed by PW-92, Mohinder Singh, Government Examiner of the questioned documents. The statement of the appellant that he took Shakir @ Rajesh Gopal Verma (Accused No.5) from Bombay to Gorakhpur and thereafter to Kathmandu and stayed there in Swoniga Hotel by making false entry in the name of Mr. Vijay Gupta, stands corroborated from the above documents and the statements.
166. PW-107 Ravindra Adhikari, Receptionist -cum- Accountant in Hotel Surya Central Thamel, Kathmandu proved the certified copy of the registration form filled by customer Mr. Gupta, who arrived in their hotel on Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 106 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 11.12.1999 and had left on 13.12.1999 as Ex.PW-107/A. He also proved the entry of Mr. Gupta for Room No.101 for two persons of Indian Nationality on 12.12.1999 as Ex.PW-107/D. Similarly, in respect of stay in Hotel Pisang, Kathmandu, the registration card dated 13.12.1999 of Hotel Pisang is Ex.PW- 109/A20. The confessional statement of Abdul Latif regarding his stay along with other accused in Hotel Surya on 11.12.1999 in the false name of Mr. Gupta and later on 13.12.1999 in Pisang Hotel, stands corroborated from such evidence. PW-92 Mohinder Singh, Government Examiner of Question Document, again confirmed that the handwriting and signatures on Ex.PW- 109/A20 as that of the appellant.
167. The purchase of five tickets by the appellants for the five hijackers is proved by PW-109 Lalit Bahadur Chand, Sub Inspector, Special Task Force, Nepal Government, Kathmandu and PW-110 SI Padam Raj Joshi. They have produced documents of purchase of five tickets for A-1 to A-5 from different Travel Agents in Kathmandu. The original signed statement as well as certified copy of the same is Exs.PW-110/H and PW-110/H1. He also deposed that some photographs of hijackers and others were shown to Rachna Satyal, a worker in Himalyan Travels & Tours, Kathmandu, but she identified only photograph of the person (Abdul Latif), who had come to her on 13.12.1999 and booked an Air Ticket for 24.12.1999 of Indian Air Lines from Kathmandu to Delhi in the name of Sheikh A.Me. (A-1). He also produced the photocopy of the Air Ticket as well as the writing on the back of the photograph as Exs.PW-110/H3 & PW-110/H3-A. He also produced the certified copy of a document i.e. Air Ticket for 27.12.1999, which was later on cancelled as Exs.PW-110/H4. Similarly, the Air Tickets for other accused, Sunny Ahmad Qazi (A-2) purchased from Gorkha Travels is Exs.PW- Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 107 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 109/A13; Ex.PW-109/A15 is of Shahid Sayeed Akhtar (A-3), Zahoor Ibrahim Mistri (A-4) and Rajesh Gopal Verma (A-5) from Everest Travels.
168. PW-109 has proved the embarkation card dated 17.12.1999 of Abdul Adam Momin (A-6) from Kathmandu to Delhi in IC-814 as Ex.PW- 109/A-38. The handwriting/signatures on Ex.PW-109/A38 have also been confirmed by PW-92 Mohinder Singh as that of the appellant. Thus the facts that he also booked an air ticket for himself in Indian Air Lines flight for 17.12.1999 from Kathmandu to Delhi; on reaching Delhi, booked a ticket Ex.PW-38/A from Delhi to Bombay in Golden Temple Mail Train as stated by PW-38 Ravindra Srivastava, Assistant Commercial Manager (Catering), Western Railway, Church Gate, Mumbai. The name of Momin is mentioned at Sr.No.9 (Berth No.9) of the Chart; his stay in Hotel Nizami, Nizamuddin, Delhi is proved by PW-6 Mohd. Zafar from entry in the Register Ex.PW6/B on page 131. The appellant Abdul Latif stayed in the Guest House on 17.12.1999 vide entry Ex.PW6/B1. Such evidence corroborates the confession statement.
169. In respect of arrangement of receiving and stay of Yusuf Nepali (A-7) by the appellant Abdul Latif (A-5), PW-10 Vinayak Vithoba Sawade, raided Flat No.707, 7th Floor, B-wing, Golden Soil Cooperative Society, Jogeshwari (West) in connection with Borivali Bank Robbery case. He has categorically deposed that when he knocked the door of the said flat, the same was opened by Bhupal Man Damai and after recovering certain documents, he also conducted the personal search of Bhupal Man Damai and got recovered a purse containing one railway ticket of 25.12.1999 from Gorakhpur to Bombay and some Indian, Nepali & Pakistani currency. The railway ticket recovered during the personal search of Yusuf Nepali was again Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 108 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 corroborated by the testimony of PW-93 V.K.Dongrey, Assistant Chief Ticket Checking Inspector, Chattarpati Shivaji Terminus, Mumbai. PW-93 V.K.Dongrey has proved the Reservation Chart (consists of 24 sheets) of Train No.1016 Kushi Nagar Express, which leaves Gorakhpur (UP) on 25.12.1999 and reached Kurla Terminus, Mumbai on 27.12.1999 as Ex.PW- 93/H. As per 9th Sheet of such reservation chart, five passengers travelled on PNR number i.e. 121690 2890 in Coach A-1 i.e. A.K. Singh (male 40 years) at Sr.No.37, Smt. A.K.Singh (female 35 years old) at Sr.No.38, again A.K.Singh (Male 13 years) at Sr. No.39, Km.Singh (female 11 years old) and at Sr.No.43, Km. N. Singh at Sr.No.26 (female 10 years old). This reservation chart clearly shows that Yusuf Nepali along with his family travelled under the fictitious names in Train No.1016 Kushi Nagar Express from Gorakhpur to Kurla (Mumbai) under Ticket No.31191460, which tallies with the ticket recovered from his possession. The appellant has also stated in his confession that Yusuf Nepali was made to travel as informed by Abdul Rauf.
170. The appellant made calls to BBC on the instructions of Abdul Rauf is again established by the print-outs proved by the prosecution. However, the called numbers were not generated in electronically print-outs.
171. From the above, we find that the prosecution has led cogent and convincing evidence on record to corroborate the confessional statement suffered by appellant Abdul Latif to show that he actively participated in the criminal conspiracy with all other accused to hijack Indian Air Lines flight to secure release of Maulana.
Re: Bhupal Man Damai @ Yusuf Nepali
172. The confessional statement of appellant Bhupal Man Damai @ Yusuf Nepali was recorded on 05.04.2000 at about 10.00 AM by PW-9 Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 109 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 A.S.Virk. He was earlier produced before PW-9 A.S.Virk between 10.00 AM to 11.00 AM on 04.04.2000 and was sent to the judicial custody. It was on the next day i.e. 05.04.2000, his statement was recorded, which runs into 18 pages. For the reasons recorded while considering the confession of appellant Abdul Latif, we find that confessional statement made by appellant Bhupal Man Damai does not suffer from infirmities, for the same reasons as found in the case of the appellant Abdul Latif.
173. The confessional statement of appellant Bhupal Man Damai @ Yusuf Nepali is Ex.PW-9/H. In his confessional statement, he narrated his association with one Sajid Tibeti while running his Dhaba near the Jama Masjid in Kathmandu near Ghanta Ghar. He also came into contact with Sun Kumar (PW-100), a resident of Kalimpong. He stated that Sun Kumar was having a tailor shop by the name of Top Tailors in Delhi Bazaar, Kathmandu. After taking education in the Madrassa in Jama Masjid, Kathmandu and in District Sunsari, father of Sajid sent him to Lucknow for further study. After, he came back to Kathmandu, his father again sent him to Pakistan for further study for becoming a Maulvi. After 5/6 years, Sajid again met him when he was selling chappals in Kathmandu in the area of Bhutaiti Market. He sought his help in arrange for a room for him on rent, as his mother quarreled with him as he was unemployed. He arranged a room for Sajid near his house in the area of Bal Kumari. After staying for 3/4 days, Sajid brought another person to his room, who was his class fellow in Pakistan. Sajid used to call him Moti @ Khalid (later identified as Doctor- accused No.3) and that they used to go out on a motorcycle together and come back in the evening. After 10/15 days, a fat man, who was called Ibrahim (later identified as accused No.1) was brought in that room by Sajid, who stayed there for two days. He further stated that after 25 days, Khalid came to him and requested to arrange Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 110 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 a room for him on rent. He arranged a room for Khalid on a rent of Rs.1200/- per month in Dhalku area. When Khalid came to see the room, a young man aged about 20/25 years, who was wearing a cap, also accompanied him. After 20/25 days, Khalid informed him that he had asked his companion to leave the room, as he had teased the daughter of the land-lord of the house and that people from mohalla armed with knives and sticks had gathered near his room. After 2/3 days, Khalid again informed him that he also wanted to vacate that room and asked him to arrange for another room at a different place. Thereafter, Khalid vacated the room and disappeared for 15/20 days. Khalid again came to his shop and requested to arrange for a room and in another 5 days, he arranged a new room for Khalid in Killagil area in Kathmandu. Khalid started living in that room, but would not sleep in that room regularly at night and used to go to the hotels, but never disclosed the names of the hotels to him. Even on his asking, Khalid never introduced him with his associates, who stayed in the hotels. He stated that one day, Khalid enquired from him about the school where his children were studying. After 3/4 days, Khalid again came to him and told that he has very dangerous associates, who are living in Kathmandu. He further stated that his landlord told him that since the room which he arranged on rent for Khalid has been vacated, therefore, he should take that room on rent also. But he told him that it is difficult for him to pay rent for the room, as he was already living in a rented room in the same building. After 2/3 days, he arranged for another house on rent for himself and his family in the Jetha area and shifted to that room. After shifting, one day Khalid came to him at his shop and asked him to visit his room which he had arranged for him. In the evening, he visited his room. He stated that Khalid enquired about his new house and insisted him to show his new house, but he did not agree as his family was living in that Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 111 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 house. After one day, Khalid again visited his shop and told him that he knows about his house and also about the schools, where his children were studying, as he went to J.P.School where his elder son was studying and one of his class fellow had told him about his house. Khalid again asked him to visit his room. In the evening, he went to his room, where Khalid told him that they know everything about his children and family and that he should work for them otherwise they will kill his children and family. He also told him that his associates are very dangerous people and they can kill his family anywhere he goes and at any time. On hearing this, he got frightened. He stated that Khalid further told him that if he will work honestly for them, he would get money for that, otherwise there was danger for him. He stated that when he asked for the work, Khalid told him that he should arrange Bombs for him and showed him a rough sketch of the Bomb, which he wanted. He told him that he should arrange 3 bombs and 3 pistols for them from anywhere. He further stated that he recollected that Sun Kumar told him that in Kalimpong in every house such weapons are kept by the people due to the agitation of Gorkha land and that such weapons are available in Kalimpong. He told Khalid about Sun Kumar and on his asking, he went to Kalimpong after taking Rs.3000/- (Nepali). He further stated that in Kalimpong he stayed in the house of PW-47 Mohammad Adil @ Pardhan, who was his childhood friend when he was working in hotel at Darjeeling. He stated that when he showed the rough sketch of bomb to Adil, he started laughing and told him that he should not ask him for such a work. He stated that he was about to tell his compulsion, but did not tell anything to Adil. Thereafter, he went to Sun Kumar and showed that picture to him. Sun Kumar assured him that he will arrange for the weapons. Thereafter, he came back to Kathmandu and told Khalid that weapons are available in Kalimpong and that Rs.1 lakh (approx.) Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 112 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 would be the price for the weapons. He further stated that Khalid gave him Rs.1 lakh in denomination of Rs.500/-. After receiving Rs.1 lakh, he went to Sun Kumar, who told him that if the weapons are purchased from Rajesh, they will not be able to earn any profit and asked him to stay in Kalimpong for 2/3 days and in the meantime, he would arrange the weapons from other person at a cheaper rate. Thereafter, he went to Adil and asked him to keep Rs.1 lakh in his safe custody. After keeping money with Adil, he came back to Sun Kumar, who told him that he had talked to one person named Bhujel and that person would be able to arrange the weapons, but he will have to be given a false promise for alluring him to make the arrangement. He further stated that Sun Kumar told him that a false promise of sending Bhujel to foreign country such as Dubai could be made till he hands over the weapons. After 2/3 days, Bhujel gave Sun Kumar three hand grenades for which he paid Rs.25,000/- to Sun Kumar, but did not know that how much amount was paid by Sun Kumar to Bhujel. He explained the procurement of weapons i.e. grenades, pistol and cartridges. He further stated that when he went to Kalimpong for taking second pistol, his wife telephonically informed him that a fair complexioned person had come to their house in Kathmandu and asked for the articles. She enquired that as to where he kept those articles to which he told her that he had kept them at an unknown place and will give them after coming back to Kathmandu. His wife informed him that those persons were threatening her and were demanding their articles from them. Since his wife was under threat, he told her to go to the house of Sun Kumar's daughter in Jetha area near Annapurna High School, where his younger son was studying. Thereafter, her wife went to the house of Kalpana i.e. Sun Kumar's daughter and handed over a bag containing three grenades to that fair complexioned man, who was Khalid. Khalid had kept the bag containing Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 113 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 three grenades in the same drum in front of his house in which he had kept the pistol. Later, as instructed by Khalid, he kept the three grenades, three pistols and 15 cartridges in one bag and concealed the same in a drum in front of his house. He further stated that Khalid insisted him to arrange for two rooms, as his friends were coming to stay in Kathmandu and that he arranged two rooms in Kamalpokhri area near a cinema hall. Khalid never purchased any household article and that only wearing apparels and light bedding such as bed-sheet were kept in that room. On his inquiry, Khalid told him that his friends were staying in a hotel. One day i.e. 20/25 days prior of the hijacking of Indian Air-lines flight, Khalid told him to bring the bag containing weapons to his room from the godown of Shanti. When he asked Khalid why the weapons were to be brought to his room, he told him that the same are to be shown to his men, who have come from Bombay. After showing the weapons to his men from Bombay, Khalid told him that they will repair and improve such weapons. After he handed over the bag to Khalid, he took it to a hotel. One day, Khalid told him that he should obtain a passport for himself and gave Rs.20,000/- to him for this purpose. Khalid further told him that there is danger for him in Kathmandu and that he would be sent to foreign country with his family. He further stated that Khalid told him to conceal the bag containing weapons in some other place. He had kept this bag in the house of his wife's brother namely Sunder @ Sunda Yusuf situated in Krishna Pao Roti, Kamalpokhr, Kathmandu. Thereafter, he went to his village along with his two sons for getting passports. He further stated that when he made a telephonic call to his wife from his village to inform her that it will take 2/3 days for getting the passports, his wife told him that two persons have come to their house at Kathmandu and were demanding their articles which he had kept in his brother-in-law's house and that they are Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 114 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 threatening her by showing a knife and were demanding their bag. He further stated that though his brother-in-law had gone to his village along with him, but those two persons took his wife forcibly to the house of his brother-in-law and broke open the lock of house and took away the bag containing weapons. After obtaining the passports on the same day, they came back to Kathmandu immediately. He tried to locate Khalid, but he was not present in his room. Thereafter, he asked his wife to make a call on some telephone numbers of Bombay, which were given to him earlier by Khalid, to enquire if the person calling from Bombay was Patel (later identified as accused No.6). After receiving reply in affirmative, his wife said to Patel that his associates had forcibly taken away the bag and that he should be asked to contact them. On the next day, when he was going towards Jetha in search of Khalid, he met him and told about the purpose for which they have procured the weapons and incurred huge amounts and that is why they had to threaten and slap his wife. Thereafter, Khalid came to his house again and gave him Rs.1.5 lakh and address of Bombay and told that he should go to Bombay with his family. Khalid also told him that he has associate named Patel in Bombay, who will look after us. He further stated that when he refused to agree with him, he threatened him that his family will be harmed by his associates. Thereafter, out of compulsion, he packed his household articles and left for Bombay with his family. He stated that he started from Kathmandu at about 8.00 PM and reached Sanauli Border on the next morning at about 8.00 AM from where they hired a tax and went to Gorakhpur (UP). From Gorakhpur, he made a telephonic call to Patel in Bombay and enquired about the way so that he can get the train ticket for Bombay. Thereafter, they went to Bombay by train and met Patel at Kurla Railway Station. He stated that they went to Bombay ½ days prior to the hijacking of India Air-lines plane. He further stated that Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 115 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 after receiving, Patel took them to a seven storeyed building in a Taxi, where they stayed for three days. Patel had two telephones with him in that building and while talking on telephone, he used to whisper. He further stated that Patel asked them to stay in that building, but he himself did not stay there. He had gone away for two days, but when he came back he was arrested by the police.
174. The part of confessional statement (PW-9/H) suffered by Bhupal Man Damai @ Yusuf Nepali in respect of his friendly relations, his handing over money, that he wanted bombs etc. from Mohd. Adil stands corroborated by the testimony of PW-47 Mohd. Adil @ Gora Pradhan. The said witness stated that in September, 1999 Yusuf Nepali came to him in Kalimpong and stayed for 2/4 days with him. After 3/4 days, Yusuf Nepali again came to his house and also brought some money with him and stayed for 2/3 days. He deposed that Yusuf Nepali brought Rs.1 lakh with him, when he last visited him in September, 1999. He deposed that Yusuf Nepali showed him a paper on which the sketch of a bomb was prepared and told that he needed two pistols/revolvers and also bombs/grenades. He deposed that he thought that Yusuf was joking with him because he used to cut jokes. He deposed that Yusuf also told him that he is to participate in getting a Maulana released and to participate in the hijacking of plane. However, he took it as a joke. He further deposed that when he came back to his house after leaving his sister Padma Didi in the house of Pushpa Didi in Teen Mail village District Kalimpong, two persons met him and one of them was called 'Mama', who was a tailor (later examined as PW-100). He further deposed that they enquired whether Yusuf Nepali was in his house or not. He also identified Dilip Kumar Bhujel - A-10, as the person who had come with 'Mama' to enquire about Yusuf. He also deposed with regard to taking of Rs.50,000/- on Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 116 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 one day and Rs.50,000/- on the next day by Yusuf Nepali from his house as well as with regard to the planning to expel Yusuf from his house. There is no cross-examination conducted on such witness by the counsel for the defence and even offer to provide legal aid counsel was declined.
175. The part of confessional statement in respect of procurement of bombs, pistols and cartridges etc. stands corroborated by the PW-100 Sun Kumar in the manner disclosed. PW100 Sun Kumar deposed that he knew Yusuf about 20 years prior to 1999 and that Yusuf came to his house around Dusshera in the year 1999. He deposed that Yusuf Nepali showed him a paper on which there was a map of grenade and he told him that he needs this grenade. He further deposed that he introduced Yusuf Nepali with Dilip Bhujel, who arranged grenades for Yusuf Nepali and Chandra Pradhan, who arranged revolvers for Yusuf Nepali. Again the said witness was not cross- examined and even the offer to provide legal aid counsel was declined.
176. PW-110 is SI Padam Raj Joshi, an officer from Nepal CID, Police Headquarters, Kathmandu, who brought the original record of investigations carried out by Nepal Police and also produced the certified copies thereof. It may be stated that the original record was produced when his examination-in-chief was recorded on 24.03.2003, but later the Court directed the prosecution to produce the original record again on 28.11.2003. He deposed that during the course of investigations, the statements of the witnesses were recorded and signatures were obtained as per Nepali law. The witness has deposed that he recorded the statement of Meena Karkee and Sunder Karkee, sister and brother-in-law respectively of Yusuf Nepali as well as of Kalpana Pardhan. He deposed that photographs of the hijackers were shown to Sunder Karkee, but he stated that he did not know these hijackers, but out of these persons, one person used to come to his brother-in-law Yusuf Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 117 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Nepali and he identified the photograph of that person. The photograph of that person is Ex.PW109/A40, which was signed by Sunder Karkee. Meena Karkee also identified the photograph of that person and such photograph is Ex.PW110/F1 and the writing is Ex.PW110/F1A. In his cross-examination conducted by Shri H.V.Rai, counsel for Yusuf Nepali on 28.01.2004, he admits the recording of statement of Meena Karkee, Sunder Karkee and Kalpana Pardhan. He denied the suggestion that he fabricated the statements and denied that no statement by Sunder Karkee or Meena Karkee were made before him.
177. Therefore, to the extent the violations of Arms Act, the findings recorded by the Special Judge do not warrant any interference.
178. However, the argument raised is that Yusuf Nepali was not the part of the conspiracy of hijacking of aircraft and that his retracted confessional statement, does not disclose that he was part of the conspiracy for hijacking of the aircraft. It is argued that reference to hijacking of aircraft is only in relation to time, when he stated that he brought weapons from the godown 20-25 days prior to the hijacking of air lines flight and later he went to Bombay on the asking of Khalid (A-3) and was received by Patel (A-6), 1/2 days prior to the hijacking of aircraft, does not show his participation in the hijacking of aircraft.
179. Except the statement of PW-47 Mohd. Adil that Yusuf Nepali wanted to procure weapons for the hijacking of aircraft and for release of Maulana, the terrorist confined in Jail at Jammu, there is no other evidence of the knowledge that the accused was to hijack the plane even in the confessional statement. The confessional statement (Ex.PW-9/H) in respect of handing over of weapons 20/25 days prior to the hijacking of aircraft; the history of procurement of weapons; the stay of Khalid (A-3) in Nepal; his Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 118 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 services to arrange for room for him time and again; visiting of other hijackers; and the fact that the appellant continued to work for Khalid will not lead to the knowledge and participation of this accused in the hijacking of the plane. He was made to work for the other hijackers. His failure to report such activities to law enforcing agencies does not prove his active participation in the plot to hijack plane. The prosecution has not been able to prove that he was part of conspiracy. One line in the statement of PW-47 would be too dangerous to made basis of the conviction in the absence of any other corroborative evidence of his being part of conspiracy. Re: Dilip Kumar Bhujel
180. The confessional statement of appellant Dilip Kumar Bhujel was recorded by PW-3 V.K.Bansal, Metropolitan Magistrate, Delhi on 17.04.2000. The said appellant was arrested on 31.03.2000 from Kalimpong and produced before him on 08.04.2000 after the Chief Metropolitan Magistrate marked the application of CBI for recording of confessional statement of Bhujel. He was sent to judicial custody till 12.04.2000 and later the custody period was extended to 17.04.2000, when his statement came to be recorded in Hindi by the Learned Magistrate in his own hand. Since the accused was given sufficient time to reflect before recording his statement under Section 164 Cr.P.C., none of the infirmities as are pointed out by the counsel on behalf of appellant Abdul Latif are applicable in his case.
181. PW-3 V.K.Bansal deposed that it is in pursuance of an application dated 08.04.2000 Ex.PW-3/B marked by the Chief Metropolitan Magistrate to him, the accused was produced before him. After recording endorsement Ex.PW-3/B2, he apprised the accused about his identity and also told him that he was not bound to make the confessional statement and that even if he does not make the confessional statement, his custody will not be Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 119 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 given to the police. He deposed that the accused was given 4 days time to reflect and think over it and was sent to judicial custody up to 12.04.2000. He deposed that the accused was again produced before him on 12.04.2000 and the same questions were repeated to him, but again time was given to reflect till 17.04.2000. It was on 17.04.2000 again, after putting same set of questions for which endorsement Ex.PW-3/B4 was made and having been satisfied himself that the accused was making the statement voluntarily without any threat, pressure or inducement, the witness (PW-3) recorded the statement of Dilip Kumar Bhujel. He further deposed that the statement Ex.PW-3/C was read over to him and he admitted the same to be correct and then signed it on all the pages. He deposed that after recording the statement of Dilip Kumar Bhujel, he recorded his endorsement Ex.PW-3/D to the effect that the statement regarding the voluntary statement of the nature; that it was read over to the accused; that he had admitted it to be correct and that it contained true and full account of his statement. Thereafter, the accused was ordered to be produced before the Chief Metropolitan Magistrate, Delhi.
182. An application dated 04.09.2001 was filed on behalf of the appellant to retracting from the alleged confession, when the Learned Magistrate was in witness box. In the cross-examination conducted on 04.09.2001, the witness stated that since the accused was not facing trial before him, he did not extend legal aid facilities to the accused and that the accused was not having an Advocate with him, when his statement under Section 164 Cr.P.C. was recorded. He had satisfied himself that the accused was not having any pressure on him for making the statement. In respect of a question that whether he was beaten by some body or not, the accused had given the answer that when he was taken to the jail on 08.04.2000 from the Court, then some person has given him 10/12 danda blows, when he came to Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 120 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 know that he was arrested in the hijacking case and that person was not in uniform. During the course of cross-examination on 14.12.2001, the witness denied the suggestion that the statement Ex.PW-3/C was drafted by the CBI or that such statement was not made by the accused before him or that he made a false statement to oblige CBI or if the statement made by Dilip Bhujel is not voluntary. During the course of cross-examination on behalf of accused Abdul Latif, it has been stated by him that it is the first confessional statement recorded by him. He stated that he adjourned the matter to 17.04.2000, as he was not satisfied that the accused was free to make confessional statement.
183. In the confessional statement, the accused has given his date and place of arrest i.e. 31.03.2000 from Sindhe Bung Basti, Kalimpong, District Darjeeling. He denied that CBI had asked him to give statement. He also denied that there was any promise of pardon or that he would be made a prosecution witness by CBI. In the confessional statement, he inter-alia stated that for the first time he met Sun Kumar with the niece of Sun Kumar. During one of his visit, he was introduced to a person whose name was Yusuf. He was assured that such person can facilitate his citizenship of Nepal. As per his asking, he handed over school leaving certificate, 4 photos & ration card to Yusuf in the presence of Sun Kumar. Their acquaintance grew. Later Yusuf explained by gestures that he is required to bring grenade. Thereafter, he directly came to the house of Santosh from the house of Sun Kumar and that Santosh arranged for the grenades, pistols on payment. Such grenades were handed over by him to Sun Kumar and Yusuf at Sun Kumar's house. Sun Kumar also told him that such things have been packed in one bag of dry fruits for taking it to Kathmandu by Bus.
184. As per confessional statement, Yusuf Nepali is a friend of Sun Kumar Pradhan @ Parihar, who has been examined as PW-100. While Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 121 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 appearing in the witness-box, PW-100 Sun Kumar Pradhan deposed that he met Yusuf about 20 years prior to 1999 and he know him since Kathmandu days because his in-laws are in Kathmandu and that he also know Mohd. Adil (PW-47) of Kalimpong. He deposed that Yusuf Nepali was living with Mohd. Adil of Kalimpong. He deposed that Yusuf Nepali showed him a paper on which there was a map of grenade and told that he needs this grenade. Thereafter, he asked Dilip Bhujel, who is earlier known to him, about the grenade. He further deposed that Dilip Bhujel brought the hand grenade and gave it to Yusuf Nepali and Yusuf Nepali made its payment to Dilip Bhujel and then went to Kathmandu. He deposed that after a month, Yusuf Nepali again came back and raised a demand of revolver. He introduced Yusuf Nepali to Chandra Pradhan of Kalimpong, who purchased one revolver and gave it to Yusuf Nepali, who made its payment to the shopkeeper. After about a month, Yusuf Nepali again came back and raised demand of more revolvers and he again went to Chandra Pradhan, who again arranged revolvers for Yusuf Nepali on payment basis. Yusuf Nepali again came back after few days, but did not ask him anything to purchase. He deposed that Yusuf Nepali told him that he needs the cartridges for revolvers and he purchased it through Chandra Pradhan. He identified the accused Dilip Bhujel and Yusuf Nepali present in the Court.
185. A perusal of the entire confessional statement of appellant Dilip Kumar Bhujel shows that it is in respect of supply of grenades; pistol or cartridges to Yusuf Nepali, who is also an accused in this case after procuring the same from Santosh. There is no allegation that he was aware of the intention of Yusuf Nepali or the purpose for which such arms and ammunition are sought by Yusuf Nepali. The statement does not disclose that the said accused has come in contact with any other accused expect Yusuf Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 122 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Nepali nor there is any evidence that he was aware of the conspiracy of hijacking.
186. Reliance of Mr. Sandhu on the judgment of State of Maharasthra Vs. Som Nath Thapa (1996) 4 SCC 659 is not helpful to prove that accused- appellant Dilip Kumar Bhujel is part of conspiracy for the reason that the goods i.e. revolvers and grenade could not be put to any lawful use. In the aforesaid judgment, it has been held that to establish a charge of conspiracy, knowledge about the indulgence in either of an illegal act or legal act by illegal means is necessary. Though intent of unlawful use of the grenades and pistols is made out but the knowledge that the grenade or the revolvers will be used for the purpose of hijacking cannot be inferred against the accused- appellant Dilip Kumar Bhujel. The possession of the weapons is proved, but the knowledge of intended use to Bhujel has not come on record even in his confessional statement or even in the statements of the other two other co- accused, the present appellants. Therefore, we are unable to agree with the findings recorded by the learned trial Court that appellant Dilip Kumar Bhujel was part of the conspiracy of hijacking of the aircraft.
187. Now coming to CR.A.No.725-DB of 2008, the prosecution has sought enhancement of sentence, so as to claim capital punishment for the accused Abdul Latif. Though the offences are serious, impinging upon the sovereignty and integrity of India, but keeping in view the fact that the appellant is in custody since 30.12.1999, we do not find that any case is made out for enhancement of sentence to death.
188. In view of the above discussion, CR.A No.725-DB of 2008 filed by the prosecution and CR.A.No.292-DB of 2009 filed by appellant Abdul Latif are dismissed. However, CR.A. No.632-DB of 2008 preferred by Dilip Kumar Bhujel and Bhupal Man Damai @ Yusuf Nepali is partly allowed. Kumar Vimal 2014.02.25 13:46 I attest to the accuracy and integrity of this document Chandigarh 123 CR.A.No.292-DB of 2009, CR.A.No.632-DB of 2008 & CR.A.No.725-DB of 2008 Their conviction for the offences punishable under Sections 302, 307, 363, 342, 467, 506 read with Section 120 B IPC as well as under Section 4 of the Anti Hijacking Act, 1982 is set aside, whereas conviction and sentence for an offence punishable under Section 25 of the Arms Act is upheld.
189. Consequently, all the appeals stand disposed of in the manner indicated above.
(HEMANT GUPTA)
JUDGE
February 25, 2014 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2014.02.25 13:46
I attest to the accuracy and
integrity of this document
Chandigarh