Holding

Section 27(3) of the Arms Act is unconstitutional, the confession of Nasir recorded under Section 164 Cr.P.C. is voluntary and admissible and may be used against co‑accused, and the death sentences for waging‑war offences are to be commuted to life imprisonment.

Summary

The case concerns a pre‑planned terrorist attack on the police guarding the American Centre in Calcutta on 22 January 2002, which resulted in five police deaths and multiple injuries. The accused, including Md. Jamiludin Nasir and Aftab Ahmed Ansari, were convicted under the waging‑war provisions of the IPC and various sections of the Arms Act, and sentenced to death. On appeal, the Supreme Court examined the constitutionality of Section 27(3) of the Arms Act, the voluntariness and admissibility of Nasir's confession recorded under Section 164 Cr.P.C., and whether that confession could be used against co‑accused. The Court held that Section 27(3) is ultra‑vires, the confession was properly recorded and can be relied upon, and that the death sentences under the waging‑war provisions were not warranted. Consequently, the death sentences were commuted to life imprisonment (Nasir for a minimum of 30 years, Aftab for life).

Issues considered

The constitutionality of Section 27(3) of the Arms Act
The admissibility and voluntariness of the confession recorded under Section 164 Cr.P.C.
Whether a confession of one accused can be used against co‑accused under Sections 10 and 30 of the Evidence Act
Sufficiency of corroborative evidence supporting the confession
The appropriate punishment for the offences, i.e., death penalty versus life imprisonment

Legislation cited

Arms Act, 1959s. 25(1A), s. 27(2), s. 27(3)
Code of Criminal Procedure, 1973s. 10, s. 164, s. 30, s. 313
Indian Evidence Act, 1872s. 10, s. 30, s. 32
Indian Penal Code, 1860s. 1208, s. 121, s. 121A, s. 122, s. 302, s. 307, s. 333, s. 467, s. 471

Subjects

waging warconfessionSection 164 Cr.P.C.death penaltylife imprisonmentArms Actconspiracyterrorismevidence

Judgment

[2014] 14 S.C.R. 1

MD. JAMILUDIN NASIR A
v.
STATE OF WEST BENGAL
(CriminalAppealNos.1240-1241 of2010)
MAY21, 2014 B
[A. K. PATNAIK AND
FAKKIR MOHAMMED IBRAHIM KALIFULLA, JJ.]
Penal Code, 1B60:
SS. 121A, 121, 122, 302, 307, 333, 467, 471and46B
rlws.1208-ArmsAct, 1959-ss. 25(1A), 27(2), and27(3)- C
Waging of war against State - Pre planned attack on police
force at American Centre by accused-A 1 and AB along with
the absconding accused and other accused, resulting in
death of five police personnel and grievous injuries to 15
police personnel along with civilians as also damage to D
public property- Conviction of A 1, AB and others u/ss. 121A,
121, 122andss. 302, 307, 333, 467, 471and46Brlws.1208
and ulss. 25(1A), 27(2), and 27(3) oftheArmsActrlw s. 1208
- Imposition of death sentence for the said offences -
Conviction of accused persons on the basis of confession of E
A1, eye witness account of witnesses, oral evidence of
prosecution witnesses and various exhibits - As regards
accused-A 1 and AB, order upheld by the High Court-Appeal
before this Court by A 1 and AB - Held: Factors established
prove that A 1-main conspirator of the attack and AB- F
mastermind of the attack, along with other accused waged a
war or attempted to wage a war against the Government of
India, for which they all conspired together and committed
the said offence -Apart from the confession of A 1, medical
evidence, oral and documentary evidence, material objects G
support the prosecution case - Confession of A 1 recorded
in accordance with s. 164 Cr.PC- Confession of A 1 contained
facts and "figures disclosing the crimes in which they were
involved as a gang by conspiring together with the foreign
H
1
2 SUPREME COURT REPORTS (2014] 14 S.C.R.

A nationals and some terrorist organisation - There was
sufficient corroboration of the contents of the confession of
A 1 - Confession of A 1 can be relied upon as against co-
accused-A B- Thus, prosecution justified in relying upon the
confession while resting its case on other evidences -
B Offence charged against appellant conclusively proved
except uls. 27(3)- Conviction of A1 andAB ulss. 121A, 121,
122,. 302, 307, 333, 467, 471 and 46B rlw s. 1208 upheld.
ss. 121, 121A and 122 /PC rlw 1208 - Offence of
conspiracy-,. Important facet of- Held: Conspiracy is a distinct
C offence -All conspirators are liable for the acts of each other
of the crime or crimes whichhave been committed as a result
of the conspiracy- In the instant case, though the conspiracy
was hatched in secrecy having regard to the oral and
documentary evidence supported by the confession of A 1,
D the existence of the conspiracy, the object of the conspiracy
and the knowledge on the above for the participants of the
conspiracyfullyestablished-Thus, chargeulss. 121, 121A
and 122rlw1208 attracted.
· ss. 121, 121A .and 122- Conviction under, for waging
E of war against the State - General principles to be applied-
Explained. ·
·Sentence/Sentencing:
Conspiracy to wage war against India -Attack on police
F force at American Centre by A 1 ·and AB along with other
accused, resulting in death of five police personnel and
grievous injuries to 15 police personnel along with civilians
--'Accused held guilty Of offences ulss. 121, 121A, 122 rlw
1208 /PC as well as ulss. 302, 307, 333 !W 120 8 /PC -
imposition of death sentence- Challenged to, by A 1 and AB
G - Held: In· view of magnitude of the offences, the manner in
which it was carried out, the disastrous effect it caused, the
animus with which the offence came to be committed,
extreme punishment of death should be awarded to the

'H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 3

accused-As regliJrdS the extent of participation, role of AB- A
· mastermind of the attack is of very high magnitude and the
role of A 1-main conspirator of atta~k is slightly lesser in
degree, though the magnitude of the crime was the same -
However, in view of the facts and circumstances of the case
death sentence not warranted, though deterrent punishment B
called for- Imposition of death penalty for offences ulss. 121,
121A, 122 rlw 1208 /PC modified to life imprisonment-AB
to suffer life imprisonment till the end of his life and.A 1 for a
minimum period of 30 years without any remission - ss.
.
121A, 121, 122, 302, 307, 333, 467, 471and46Br/ws.1208.
.
c
Chargesulss. 121, 121A, 122rw1208asalso3021PC
for waging of war against State and killing and injuring police
personnel- Imposition of sentence - Principles to be borne
in mind - Stated.
Factors for proper sentencing- Stated. D
Evidence Act, 1B72:
ss. 10 and 30-Confession of accused uls. 164 Cr.P.C.
- Reliance upon, as against other accused - Held: When
more than one person are being tried jointly for the same E
offence and a confession 111,ade by on'e of such persons is
found to affect the maker as well as the co-accused, the court
can take into consideration such confession a~ against other
persons and also against the person who made such
confession - On facts, overwhelming evidence independent F
of confession of A 1 on record, thus, confession of A 1 can be
fully applied and thereby, involvement of A 1 in the criminal
conspiracy and the following insurrection on police force at
American Centre fully established, thus, confession of A 1
can be relied on as against AB. G
s. 32- Dying declaration - Reliance upon - Oral dying
declaration of one of the accused involved in the attack to
the police officer - Admissibility of - Held: Cannot ·be
accepted since it did not fall within the four comers of the
H
. '
4 ' ··SUPREME COURT REPORTS (2014] 14 S.C.R

A prescription contained In s. 32 - However, inability to rely
upon the so-called oral dying declaration for want of legal
sanction cannot mean that the entirety of the evidence of the
police officer can be eschewed from consideration - Only
said pait of the version ofpolice officer cannot be relied upon.
B Code of Criminal Procedure, 1.973 ~ s. 164 -
Confession of accused recorded under - Procedural
compliance with -Admissibility' of- Held: A 1 was not in police ·
custody when his confession was recorded - Procedure for
recording the confession was complied with - Confession
C was voluntary - Retraction alleged to have been made by
A 1. dealt with and the same did not cause any hindrance in
accepting the confession - Narration so made in the
• 1
confession by A 1 was natural and cogent and also established
that the confession ofA 1 was not only recorded in accoraance
D withs. 164 but deserved to be given due consideration while
appreciating the evidence relied upon by the prosecution.
Arms Act, 1959 - s. 27(3) '- Conviction and death
sentence imposed on accused under - Maintainability of -
Held: S. 27(3) ultra vires of the Constitution and declared as
E void, thus, convictions and sentence imposed u/s. 27(3) set
aside.
· Acc9rding to the prosecution case, the accused
persons along with the other gang members, carried out
a plan·ned attack on police fcirce at the American Centre,
F Calcutta, which resulted in the death of five policemen
and injury to around 15 police personnel along with other
civilians. The gang members had rehearsed this
previously and acquired and possessed arms and
ammunition for the same. PW6-complainant, who was
G working as sergeant~on the date of occurrence was on
night duty and he witnessed the incident. Other
prosecution witnesses, working there as Inspector and
constable were eye witnesses .to the· incident. PW-6
through wireless communicated the said incident to the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 5

control room of the police. The police team cordoned A
the premises and suspected the inmates to be militants.
. They noticed two of the inmates escaped through the
side gate shooting at the police and in the cross fire both
of them were injured. Injured 'Z' made an oral dying
declaration to PW-113-police officer when he was taken B
to the hospital. He stated that he was the shooter
involved in the shooting spree at the American Centre
and 'S' was the driver of the motor bike. 'Z' died en route
the hospital and 'S' died later. Investigation was carried
out. A1 and other accused were arrested. The trial court c
on the basis of the confession of A1, eye witness
.account of witnesses, oral evidence of prosecution
witnesses and various exhibits, convicted A1 to A3, A6
to A9 for offences u/ss. 121A, 121, 122 and ss.302, 307,
333, 467, 471, 46S rw 1208 IPC as. also u/ss. 25(1A), 27(2) o
and 27(3) of Arms Act rw 1208 IPC and were accordingly
sentenced to death: However, A4 and A5 were acquitted
of all the charges. In appeal, the High Court acquitted A2
and A3 of all the charges, A6, A7 and A9 were acquitted
of the offence of waging of war but convicted for the E
offences u/ss. 467 rw 1208, 46S rw 1208 and 471 rw 1208
IPC. The High Court upheld conviction of A1-appellant
'N' and AS-appellant 'A' as well as the sentence imposed
by the trial court on all counts. Hence, the instant appeals
by A1 and AS. F
· Disposing of the appeals, the Court
HELD: Question No.1: Whether the charge under
Section 27(3) of the Arms Act could be maintained in the
light of the decision of this Court in Dalbir Singh's case?
1. Section 27(3) of the Arms Act having been struck G
down on the ground that it was ultra vires of the
Constitution and declared as void, the conviction and
sentence imposed on the appellants under Section 27(3)
cannot survive in the light of the decision of this Court
H
6 SUPREME COURT REPORTS [2014] 14 S.C.R.

A .in Dalbir Singh's case whereunder the Section 27(3) was
struck down as unconstitutional. (Paras .11, ·80, 136]
(47-A; 102-D-F; 149-G-H]
State Of Punjab v. Dalbir Singh 2012 (4) SCR 608 :
(2012) 3 sec 346 - relied on.
B Question No.2: Whether apart from the confession
of A 1-appellant 'N' whatwere the material legal evidence
oral, documentary as well as in the form of material
objects to suppor!: the case of prosecution?
C 2.1 All the eye-witnesses, PW-6-complainant who
worked as sergeant of the wireless section of Calcutta
police, PW-9-inspector, PW-15-constable, PW-16-
constable, PW-18-constable, PW-19 and PW-20 uniformly
confirmed that of the two miscreants the one who was
firing towards the police force at 6.30 a.m. on 22.01.2002
D was wearing a Chocolate (Brown) colour jacket and the
person who was riding the motor bike was wearing a
Green colour jacket and firing with aid of 9 mm pistol.
The evidence of PW-6 is categoric to the effect that the
shooting operation, at the instance of the miscreants,
E was from a distance of 10 to 15 feet. Due to the firing
incident many of the police personnel who were on duty
both in the previous shift of 21-22.01.2002 and the other
group of personnel who were changing over the duty
from the morning of 22.01.2002 were injured severely as
F many of them were found lying on the ground and the
empty bullets were scattered all around the place.
[Para 87][106-D-F]
2.2 From the evidence of PWs-37 and 38 what all
could be gathered was that they happened to see the
G Maruti BOO car bearing Registration No.BRK-4907 parked
at the crossing of 'M' Street and 'R' Street. [Para 90]
(107-D]. . .
2.3 The evidence of PW-47, building promoter
'related to the sale effectuated by him in favour of 'NH',
. H absconding accused, the ground floor flat in No.1, 'T'
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 7

Lane for a sale consideration and that possession was A
handed over to 'NH' who was introduced to PW 47 by
appellant 'N' and the execution of the document for flat
was borne out by Exhibit P-63 which was also witnessed
by PW-48-owner of the land. PW-47 on 20.01.2002,
noticed appellant 'N' along with another person went out B
in the early morning 5.30 a.m. in the Maruti 800 Car and
two other persons who ·were also staying in No.1, 'T'
Lane followea the said Maruti Car in a motor bike. It is,
however, elicited in cross-examination that he was in the
custody of the police between 30.01.2002 and 07 .02.2002. c
in connection with the dacoity case which was disposed
on 07 .02.2002. PW-48 in his evidence confirmed the
seizure of Pakistan National Flag from the ground floor
flat occupied by 'NH' on 5.2.2002. [Para 91][107-E-H;
108-D] D
2.4 PW-62 deposed that while he was in front of the
shop of 'AN', he saw a Maruti Car parked in front of the
shop of 'AN', that a Lorry got struck in the said road due
to the haphazard parking of the Maruti Car, therefore,
out of curiosity he noticed -the number of the vehicle E
which was BRK-4907 and he later identified in the court
at the time of his examination; and that little later he saw
a Black colour motor bike which came there from which
one gentleman was the pillion rider got down telling the
driver of Maruti Car 'KAAM HO GAYA'. According to PW- F
62, on that day, in the forenoon when news spread about
the firing which had taken place at the American Centre,
he felt that the occupants of Maru.ti Car and the Black
motor bike might be involved in the occurrence and since
he knew one PW 101~Police Inspector, he along with his· G
friend 'GG' approached him and informed as to what they
witnessed in the morning. As per his direction, he gave
his statement to the officer of the Special Investigation
Team. There was a Test Identification Parade in which
PW-.62 identified appellant 'N'. He also identified the
photo of the motor bike rider. PW-62 being an H
8 SUPREME COURT REPORTS [2014] 14 S.C.R.

A independent witness ·and having been able to pass on
the information whatever he noticed in the morning on
the very same day in the forenoon to one of his known
police officer, there is no reason why his version should
not be accepted in the absence of any other serious
B deficiency pointed out either as interested witness or a
stock witness or any other deficiency on his part. As far
as the non-examination of 'GG', it was established before
the Court that at the time of trial, the said person was
seriously ill and the necessary "ledical records were
c . also produced in support of the said stand. Therefore,
non-examination of friend of PW-62 also does not cause
any dent in his version. (Paras 92, 93](108-E-H; 109-A-F]
2.5 PW-39, is the younger brother of the 'AS'. PW-
39 in the course of his chief-examination identified both
D 'N' and 'A' in Court though, at the end of his deposition,
he stated that he identified both of them under the
pressure of the police. PW-39 stated about deceased A's
contact with appellant 'N' and 'A' and also 'AS's deep
involvement in Jehadi movement with the support of the
E leader of Hizbul MuZahiddin as well as another leader
Dr. 'MA', a Kashmiri, with whom he used to discuss about
the militant activities and the hatred towards the
Government of India. From the manner in which he
deposed before' the Court, it" can be safely stated that
F whatever he stated were all spontaneous statements. In
fact, his version that he gained a feeling that the fate of
his brother ended in a tragic manner because of his
association with appellant 'A', who according to him was
the root cause for the untimely demise of his elder
G · brother. To that extent, the evidence of PW-39 can be
noted. (Para 94][111-D-G] ,
2.6 The evidence of PW-46 is referred who was one
of the detenµe along with the 'AS' in the Tihar Jail and
according to PW-46 he had witnessed the close contact
H . of 'AS'withA8-'A'. [Para 95][111-G-H]
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 9

2. 7 PW-83-postmortem doctor, did the postmortem A
on four of the dead bodies of the policemen who were
killed in the occurrence on 22.01.2002 at about 6.30 a.m.
at the American Centre. The evidence of PW-83 makes it
clear that the shooting indulged in by two miscreants
was from a very sophisticated automatic weapon, B
namely, AK-47 and it had resulted in the instantaneous
death of the police personnel. PW-95, Senior Scientific
Officer, Ballistic Division, Forensic Science Laboratory·
visited the site of occurrence, the American Centre on
22.01.2002 and stated thatthe holes and size of the dents · c
and other damages, indicated that they were all caused
by gun shot and the distribution of this holes, dents and
damages suggested that automatic or semi-automatic
type offirearm was involved in the crime, thatthe nature
of portions of bullets recovered in the place of o
occurrence indicated that rimless ammunition of caliber
7.62 x 39 mm were used in the crime. The version of PWs-
83 and 95 therefore, confirmed the force with which the
shooting activity was indulged in by the two miscreants
towards the police force on the early hours of 22.01.2002 E
at the American Centre. [Paras 96, 97 and 98][112-A, B,
D, F-H; 113-A-D]
2.8 The evidence of PW-100, A.S.I. showed that·
immediately after the occurrence the information was
communicated to the police station and necessary F
entries were made in the G.. D. and thereby, provide no
scope for any delay being involved in registering the
crime. [Para 99][113-F]
2.9 PW-113, police officer led one of the teams to
ambush some terrorist who were staying in Hazaribagh G
on 27-28.01.2002. Reference can be made to his
evidence in so far as it related to apprehension of 'Z' and
'S' in the course of the encounter of the premises at
Hazaribagh. PW-113 stated that when they were carrying
the injured man to the hospital he disclosed his name H
10 SUPREME COURT REPORTS [2014] 14 S.C.R.

A as 'Z' and also revealed that he was involved in the
shooting incident that took place on 22.01.2002; and that
in the said shooting incident his companion was one
'SD' who was driving the motor bike and himself, 'Z' was ·
the pillion rider of the motor bike and was firing from AK-
B 47; thatthe other injured persons name was 'S' and he
is also a man of Laskar-e-Taiba and a resident -of
Pakistan; that while taking to the hospital 'Z' died on the
way while the other injured was admitted in the hospital
who also later died and that the said person did not make
C . any statement. To the extent it related to the so-called
dying declaration claimed to have made before PW-113
by 'Z', his .evidence relating to that aspect cannot be
accepted. Though, as regards the recovery of arms and
ammunition said to have been made by PW-113 in the
premises at Hazaribagh at a later point of time can be
D accepted. The encounter and the nabbing of the 'Z', 'S'
and the seizure of large quantity of arms and ammunition
at Hazaribagh definitely gave a clue for the investigating
machinery of the American Centre case to track the
miscreants involved in the offence. It must be stated that
.E: the inability to rely upon the so-called oral dying
declaration for want of legal sanction cannot be taken
· to mean that the entirety of the evidence of PW-113 can
be eschewed from consideration. The claim of oral dying
declaration of 'Z' to PW-113 cannot be acepted, inasmuch
F as, if it were to be accepted, it should fall within the four
corners of the prescription contained in Section 32 of
the Evidence Act or otherwise it will create a bad
precedent. Therefore, the said part of the version of PW-
113 cannot be relied upon and proceed to find out as to
G how the case of the prosecution, as against the
appellants, was proved and whether they succeeded in
their attempt. [Paras 100, 10.1][114-A-E, H; 115-A-E]
2.10 PW-123, Investigating Officer, was entrusted
with the task of investigation of the case relating to the
. H shooting incident in front of the American Centre. The
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 11

evidence of PW-123 disclosed the collection of material A
evidence through the apprehended accused and from
whom the recoveries made based on. the admissible
portion of the statement of appellant 'N' and appellant
'A'. The most significant aspect related to his requisition
for recording the confession of appellant 'N', accused . s
'SA' and the seizure of vital documents at the residence
of 'AS' at the instance of appellant 'A'. The same was
done in accordance with law and, there was no infirmity
on that score. The submission that the confession of
appellant 'N' was not recorded in accordance with the C
prescription contained under Section 164 of Cr. P.C. as
he could not have made it voluntary as he was in police
custody, cannot be accepted. In other respects there was
not much of controversy relating to evidence of PW-123.
Therefore, the Final Report filed by PW-123, as against
the accused, formulating the charges based on the 0
evidence collected by the investigation machinery was
duly considered by the trial court as well as the High
Court. [Paras 102, 103)(116-D-E; 117-D, G, H]
2.11 An important facet of the law of conspiracy is
that apart from it being a distinct offence, all conspirator$ E
are liable for the acts of each other of the crime or crimes
. which have been committed as a result of the conspiracy.
Having applied the said principles to the instant case,
though the conspiracy was hatched in secrecy having
regard to the various circumstances exhibited in the form. F
of oral and documentary evidence supported by the
confession of appellant 'N ', the existence of the·
conspiracy, the object of the conspiracy and the
knowledge on the above for the participants of the
conspiracy were all fully established. The outcome of G
the said conspiracy, attracted the charge u/s.121, 121A
and 122IPCrw1208.[Para 108][120-F. G; 121-B, C]
Yakub Abdul Razak Mamon v. The State of
Maharashtra, through CBI, Bombay JT 2013 (5)
H
12 SUPREME COURT REPORTS [2014] 14 S.C.R.

A SC .142; Govt. of NCT of Delhi v. Jaspal Singh
2003 (2) Suppl. scR 335: (2003) 10 sec 586;
Baburao Bajirao Patil v. State of Maharashtra
(1971) 3 sec 432 ...:;referred to.
· 2.12 As far as the conspiracy is concerned, it cari
B be referred to those·materials which existed or came into'
being as between the date appellant 'N' had come-in
contact with 'A' in the year 1999 till the death of 'A' and
the materials which came intd being after his deinise.
While dealing with· the said materials, the attendant
C events can also be noted. The recovery of large
quantities of arms and ammunition from the premises at
place 'H', a revolver recovered from appellant 'N', the
contents of the e-mail messages and the letter of 'A' to
the wife of 'AS' after the killing of 'AS' read along with
D some of the vital statements made by PW-39 in his
evidence to the effect thatthe untimely death of 'AS' and·
his involvement in this anti national activities were all after
his contact with 'A' when cumulativel.Y considered, it is
revealed that every preparation was made during the
E lifetime of 'AS' which got intensified after his demise on
08.12.2001 in the encounteraf place' 'R' which was
masterminded by appella'nt '!!>! with the..wholehearted
support of appellant 'N'.by arranging for the· stay of the
other accused by s_ecuring a premises at plac,e 'H' by
F bringing those· gang 'inenibers,_ nainely, deceased. 'Z',
deceased 'S', 'HI', 'SD' from place 'A' to place 'H' with their
heavy luggage which ultimately transpired to be arms
and ammunitions stored in the premises of place
'H'.[Paras 105, 110)(120-F, G; 122-D-G] .
G 2.13 From 14.01.2002 the various_e-mail messages
transacted between appellant 'N' with appellant 'A' and
other conspirators which took.place.up to 29.01.2002
revealed the loaded mind set with which each one of them
were operatin·g for executing the plans which were
H
J
I
f

MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 13.
'

originally developed by the deceased 'AS' and 'A' which A
were ultimately implemented with much more
vehemence and vengeance by resorting to shooting
spree towards the police force who were posted at.the
American Centre. In fact, the messages between
14.01.2002 and 21.01.2002 exchanged between appellant B
'N', 'Z' and 'A' disclosed the mindset with which the gang
members hatched the conspiracy to operate and to.carry
out their mission of attacking the police force posted at
the American Centre. Hayif1g reg.ard to the 011erwhelming
documentary eviclence, vv,hic,h
~' ,- _-.
was
'.,._._
placed befqre
.
( .·
the c -

courts below, the conclusi.on 4ltimat~ly reached by the
courts below based on the materials. . .. coupled V,lith
---~
the
oral evidence sufficiently e5~ablish,that the appellants
along with the other accuse,~ cqnspired for w~9ing a war
against the State. [Para 111J[l22~.% Hj) ~.~~~A"Dl ,., . ·O
,Question No. 3: '1!,,he,ther}h~ •.co,r;i.r~ssion of
appellant.,'.N' was recorded i!1 accordan.ce, with Section
' . . ' ''.l · ' , "~ I!
! ,' i -~·., ·

164 of Cr,P.C.? , ;• , .;
. 3.1 PW-97-Magistrate,,:~l:}o rec!i>r,def!ithe i;onfe~si 0 n
of appellant 'N', applied all.p.r,e.9a}lti~..nsirequired unclE)r E
law before the confession;ofappe)lanVN';was recprded.
The submission made on;,behalf 0Htie, 1 appellimt;;J)l~Jh.at
on the date of recording otco.nfessi?n1 l)e)IV,as in P.olice
custody. was proved to be no.t correct art<! ,,ha,t ~s·p.er
the dir.e.ction of PW-97 himsel.f 0 n 21.02.2002 h,e 1was}>,~11t F
to the Presidency Correctional 1-!a111e,of Calcutta )'Vjtl) .a
specific direction to keep him if1 segr.egation,50 tha\1he
did not mingle with other ·at;c1;1sed or strangers q,ef0 re
he was produc~d on 22.02:2~02at1 p.m. In fact, appellant
'N"s answers to •qu~5tions l to 18 re,corded i.t;i tl)e G
confession itself, as .well as, the. la.st part of tpe
confessional statement amply dJsclose that appellantN'
was conscious of the impli.<;:atio.ns of m.aki11g a
confession and in spite qf t~_at h(? proceeded to make
H
l
14 SUPREME COURT REPORTS [2014] 14 S.C.R.

A the confession before PW-97. Further, at the time of
recording of the confession PW-97 ensured that such
recording took place in his chambers and that except
himself and appellant 'N' nobody else was present in the
chamber much less any of the police personnel.
B Therefore, there was no scope for the appellant to
contend that the confe.ssion was not recorded in
accordance with law. [Para 112][123-D-H; 124-A, BJ
. State (NCT of Delhi) v. Navjot Sandhu @ AfSan
Guru 2005 (2) Suppl. SCR 79 : (2005) 11 sec
.C 600 ; Hanumant Govind Nargundkar and another
v. State of Madhya Pradesh 1952 SCR 1091 : AIR
1952 SC 343; Haricharan Kurmi v. State of Bihar ·
1964 SCR 623: AIR 1964 SC 1184; Mohd..
Khalid v. State ofw· 8. 2002 (2) Suppl. ScR.:31 :
D (2002) 7 SCC 334 _. referred to; •' ··
3.2 The confessioii o·f appellant 'N', the pro~edure
followed by PW-97 while recording the confession apart
from finding out the truthfulnelss of the statement
contained in the confession, as well as, various other
E evidence led by the ptosecution whiclh also supported •i::
to a very large·extent'the statement made by -'N' in his
confession, have been dealt.with. In-the instant case,.the
confession is fully acceptable and the details contained
•
in the confession Were all·true.The retraction alleged to
F have been made by appellant ~N! in the coucrse. of
questioning was dealt with and it was found that the
same did not in any way cause any hindrance,in

G
accepting the confession,[Para 113][124•E·H]
3.3 In the instant case, the Court was fully fortified
in applying the confession made by appellant 'N' as
against appellant 'A' based on the independent evidence
- ~

which is available in abundance as against appellant 'A'
which sufficiently supported the case of the prosecution.
Therefore, the confession of appellant 'N' could also be '
1.
H
f

MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 15

used while finding appellant 'A' guilty of the charges A
levelled against him. [Para 115][125-E, F]
3.4 Applying the principles stated in Rabindra
Kumar Pal's case, there is no scope to reject the
confession of appellant 'N'.The Magistrate-PW-97 while
recording the confession of appellant· 'N', took care of · B
the principles laid down therein. By applying the twin
test, namely, the voluntariness in making.the confession
and its truthfulness,the reference to the Rabindra Kumar
Pal's case did not in any way affect the case of the
prosecution. As far as identification of the appellants; as C
well as, the photographs of deceased 'Z'and 'S' and the
other material objects, such as, Maruti 800 car, Suzuki
Motorbike; the Chocolate and Green colour jackets w0rn
by the assailants, there was no lacunae in the evidence
of those witnesses who ideratified the accused as'Well . D
as the ·material objects. It was made .clea.r.'th:at
identification of accused persons .by Witnesses: in::the
dock for the first: time, though permissible .cannot"be
given credence without furthet corroborative evidence .
. What was stated was thatthe dock identification :akme E
could not be treated as substanti6J evidence tho4ghit
was permissible. PW-62 who. was not "known to the
accused was able to:ideratifyappellant 'N' in a TIP<:Parade
· which was':conducted in·the Month of March,.200.2;d:e.
Within a period of about 2% months after· the· focident. F
Therefore, when the said witness was able. to identify
appellant 'N' there was no scope to. do\11:>.t such
identificati.o.n.. Further, the id.entificatio•Q.,o_,L,the
photograph of 'Z' and the jacket worn .l;>y him as ideptified
by PW-62 as well as the other eye-witnesses coulp 11ot G
be rejected, as no serious deficiency in their
identification could be noted. The identity of appellants
'N' and 'A' was made by PW-39, whose identification was
not questionable on any account. [Para 117][126-8-H;
127-A] H
l

16 SUPREME COURT REPORTS [2014] 14 S.C.R.

A Rabindra Kumar Pal @ Dara Singh v. Republic
oflndia 2011 (1) SCR 929 : (2011) 2 SCC 490 -
referred to.
3.5 As regards, retraction, while referring to the
questions and the answers made by appellant 'N', finding
B was recorded that the same did not in any way affect the
·''
genuineness of the confession made by appellant 'N'.
Further, the manner in which the confessional statement
was made starting from the days when. appellantdN'
developed .his friendship-with deceased 'AS.' in the school
C days, their subsequent reunion in the year 1999 and the
ultimate execution of the horrendous attack on the police
force at the American Centre in which as many as five
police personnel died and 15;number of police p·ersonnel
suffered gun shot injuries along with·civilians 1 which
D narration could -not hav,e been· prepared by the
prosecution agency with so many details pertaining to
men and material and the ·sequence with which it was
disclosed. T<he narration so ~ade in the confession by
appellant 'N' was natur.al!and cogent and, ·.thus,
E established that the confession of appellant 'N' was not
only recorded in accordance with s. 164 Cr.P.C. but
deserved to be given due consideration whHe
apprecfating the evidenee r.elied upon by the
prosecution, Thus, the confession .of appellant 'N' was
F record.eel in acc.ordance with Section 164 Cr.P.C.
[Para 118][127-C·G]
Question No. 4: As to what extent the contents of
the confession could be used by the prosecution; and
Question N6', 5 whether there was any contradiction in
G the evidence both oral as well as documentary vis-a-vis
the confession made by the appellant 'N'?
4.1 The confession of appellant 'N' having been
recorded in accordance with law and since it contained
facts and figures disclosing reflection of what really
H

";,_ . ) . ., JWIU:A .t43t4 ..t _.2...,€1 Jil.¥,4. . UQ l --
I
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 17

transpired in relation to the transaction indulged by the A
appellant, namely, the crimes in which they were involved
as a gang by conspiring together with the evil mindset
guided by the foreign nationals-'Z' and 'S' who were all
Pakistanis along with some terrorist organisation
namely, 'SL', leader of Hizbul Mu'Z'een and Kashmiri B
militant by name Dr. MA and one 'AD'. [Para 119][127-H;
128-A-D]
4.2 From the relevant details culled out from the
- •
confession of appellant 'N', it is found that there was no
contradiction to any of the statement of 'N' in his c
confession but fully corroborated those facts and events
in the form of oral and documentary evid1:1nce. Thus.the
prosecution was fully justified in relying upon the
1 confession while resting its case on the other evidences.
[Paras 120, 121][128-E, F; 133-E) D
Question No. 6.: Whether 1the confession of
appellant 'N' could be relied upon as against appellant
'A'?
5.1 The relevance, efficiicy and reliability of the
confessional statement of appellant 'N' when examined E
in -the touchstone of.ss. 10 and 3<¥of the Evidence Act,
the confession of a co-accused could not be treated as
substantive evidence to convict other than the person
who made the confession on the evidentiary value of it.
It is, however, well established and reiterated in several F
decisions of this Court that based on the consideration
of other evidence on record and if such evidence
sufficiently supports the case of the prosecution and if
it requires further support, the confession of a co-
accused could be. pressed into service and reliance G
could be placed upon it: In other words if there are
sufficient materials to reasonably believe that there was
concert and connection between the persons charged
with a commission of an offence based on a conspiracy,
it is immaterial even if they were strangers to each other H
\
18 SUPREME COURT REPORTS [2014] 14 S.C.R

A and were ignorant of the actual role played by them of
such acts which they committed by joint effort. Going
bys. 30 of the Evidence Act, when more than one person
are being tried jointly for the same offence and a
confession made ·by one of such persons is found to
B affect the maker as well as the co-accused and its stand
sufficiently proved, the Court can take into consideration
such confession as against other persons and also
against the. person who made such confession.
[Para .123.H134-E-H; 135-A, BJ
C Natwarlal Shankarlal Modi v. State of Bombay
(1961) B.LR. 661; The Govt. of NCT of Delhi v.
Jaspal Singh (2003) 5 SCC 589 - referred to.
5.2 Ori facts, overwhelming evidence independent
of confession of appellant 'N' is on record, the confession
D of 'N' can be fully applietl and thereby, the involvement·
of 'A' in the criminal conspiracy and the following
insurrectiori:'on the police force at the American Gentr;e ·
stands fully established and thus, the confession of'N' t,
ccin. be relied on, as against appeUant 'A'. [Para '.125]
E [137-E, F] ,
·Question No. 7: Whether tl~re was sufficient
corroboration of the contents of the confession of
appellant 'N! with: the other evide-nce i.e. oral,
documentary•arid material objects relied upon by the
F prosecution?·
6.1 As far as Exhibit-46, which was found to have
been written tiy appellant 'A', as per expert witness, it
was found that apart from expressing his anguish over
th·e untimely demise of his close friend 'AS' in an \
G encounter which according to him was a fake one, he '
while consoling the wife of 'AS' expressed his reaction
to such an extent stating that appropriate measures
would be taken for a revenge. Therefore, Exhibit-46 was
not.a simpfo letter expressing condolence to the wife o·f
H

-- ........ ···---~-------~
r I
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 19

'AS'. It stated that necessary steps would be taken for a A
revenge. In other words, the tone and tenor of the letter
spoke for itself reflecting the adverse mindset of
appellant 'A' and his craving for taking revenge on the
police. [Para 128][145-A-C]
Kehar Singh and others v. State (Delhi B
Administration) 1988 (2) Suppl. SCR 24: (1988)
3 sec 609 - distinguished .
. ·6.2 Even if the principle that the accused who is
alleged to·•have' involved in the conspiracy Should also
know the·opject of the conspiracy, not merely that there> C
was a conspiracy is applied to the case on hand,:aparf
' · from e.arlier·meetings of the appellants along with. 'AS'
and othe.rs:. prior to· the demise of 'AS', as from 14-
15.01.2002 onwards, the participation of appellants in the
q?ps.Rif,~.cy \'{ii~ i~tense. a9d every minute d~tails o,f the D
act tQJJe. pe.rformedpn .42 ..01.2002 was. deliberated upqn
l~f«nd~~(e:~efo~e ifs execJ!.tlon. Therefore, the,dec~,~~~
·~:.}.~e.i;:,~a.,s~d 'S', 'SD', 'HI'.! appellarJ.t '!"', 'A' ~nd otti,ers,.
R,,';!15i!W1Wd ,~r:i }he conspiracy, re re fully aw.a~e of;~J:i~l
tb.ey.we.r1:1
l\}' ;•
c.on.spiring
.~li<C.·.'.,';.":l
·- ' .
and the
~f. ' ' -
object of such. c.onspiracy
,_ ...
E·
a~~:\be. ylti~ate.e.xecutionJPara 1~0][147 "A-DJ
. , 3,,, :j).tate)f1rougb .Supreintendant of Police, CBI/SIT,
v. Na/ini and others 1999 (3) SCR 1 : (1999) 5 ,
b·> ~R,S 253 - r,eferred to. F
<.Yu'~.3.J,he handwriting expert's opinion can be reJi.ed
upon when.supported by other items of internal and.
el(terJ!al..evidence.
J ._.·
;.'.-~~--~,,i-:;, ,,·
In''
the instant
'
case,. the handwriting
\
e~Rer.fl:Z,,OPinion. and 0 ther documents .was only o,ne
PJ,~Fe ?f_'eviden~e in a .voluminous documentary and G
oHler ~v,i,dence, which was let in by the prosecution to
s,1,1,~port:the ch(lrges fevelled against the appellant.
[Para 132]148-A-CJ
Bhagwan Singh and others v. State of M.P 2003 ·
E . :,;• .• ·'-< • • } • -" ' ,

.. (1) SCR 506 : (2003) 3 SCC 21 - referred to.
H
r
'

20 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 6.4 In the instant case, before executing the attack
on 22.01.2002, a rehearsal was held by appellant 'N' along
with the assailants on the previous days. Therefore, the
witness who identified the appellant, namely, PW-62 had
the advantage of looking at the appellant with some
B amount of anxiety as appellant 'N' created a ruckus while
parking the car on two occasions prior to the date of
occurrence, namely, 22.01.2002. That apart, PW-39 who
identified appellant 'N' and 'A' had known both of them
earlier and, therefore, the identification of the appellants·
C cannot be controverter at all. [Para 133][148-G-H;
149~AJ .
Subash and Shiv Shankar v. State of U.P 1987
(2) SCR 962 : AIR. 1987 SC 1222 -
distinguished.
D 6.5 The various witnes\;es/facts whic~ w~r!'. f.11
crucial to the case of the prosecution as found in the
confession of appellant 'N' were all corroborated iilliy
by other _evide.nce, with oral an? documentarfA~''.*eU
as material objects and, therefore, there was sufficient
' E corroboration of_ the contents of }_he conf~ssi~~ <jf
1
appellant 'N' with the other evidence 1.e. oral,
documentary and material objects relied upon by the
prosecution. [Para 134][149-8-C] I
Question No. 8: Whether the offence charged
F a·gainst the appellants for which the appellants were
fl
. -~
proceeded against were conclusively proved ?
7. The appellants are guilty of the charges levelled
against them as found proved except the charge under
l
Sectio'n 27(3) of the Arms Act which cannot be
G maintained, therefore, the appellants are held guilty of
all the other charges as found proved against them by<
the courts below. [Para 135][149-D-E]
Question No. 9: If the offence was made out against
H the appellants as held by the courts below whether the
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 21

sentence of death can be held to be the appropriate A
punishment, if not, what is the punishment to be
imposed?
8.1 As regards the concept of waging of war against
the State and to apply the same in a given case in order
· to find out as to how the sentence can be imposed in B .
such cases, the general principles to be applied are: ·
a) The most important is the intention and purpose
behind the defiance or raging against the government.
b) Though the modus operandi of preparing for the
offensive act against ttie government may be quite akin C
to the preparation in a regular war, it is often said that
the number of force, the manner in which they are
arrayed, the arm and or equipments are immaterial.
'c) Even a limited number of persons who carry
0
powerful explosives and missiles without regard to their
own safety can cause more devastating damage than a
large group of persons armed with ordinary weapons
or firearms.
d) There need not be the pomp or pageantry usually E
associated with war such as the offenders forming
themselves in battle line and arraying in a war-like
manner.
e) The Court must be cautious in adopting an
approach which has the effect of bringing within the fold F
of Section 121 IPC all acts of lawless near and violent ·
acts resulting in destruction of public property, etc.
f) The moment it is found that the object sought to
be attained is of a great public nature or has a political
hue the offensive violent act targeted against the armed G
force and public officials should not be branded as acts
of 'waging war'.
g) The expression 'waging war' should not be
stretched too far to hold that all acts of disrupting public
order and peace irrespective of their magnitude and H
22 SUPREME COURT REPORTS [2014] 14 S.C.R.

A repercussions could be reckoned as acts of 'waging war'
against the government.
h) A balanced and realistic approach is called in
construing the expression 'waging war' irrespective of
how it was viewed in the long long past. ·
B i) An organized movement attended with violence
and attacks against the public officials and armed forces
while agitating for the repeal of an unpopular law or for
preventing burdensome taxes were viewed as acts of
treason in the form of 'waging war•:
c j) Neither the number engaged nor the force .
employed nor the species of weapon with which they
may be armed is really material to prove the offence of
waging war.
'
k) The single most important factor should be to
D think that in a case that is being considered of waging
or attempting to wage war against the Government of
India, what is the target of attack chosen by the
conspirators and the immediate objective sought to be
achieved thereby.
E I) The planned operations if executed what is the
extent of disaster spelt out to the whole nation. Whether
a war like situation lingering for days or weeks would
have prevailed and such offensive acts of unimaginable
description and devastation would have posed a
F challenge to the government and the democrati"c
institutions for the protection of which the government
of the day stands.
m) Was it mere desperate act of a small group of
persons who were sure to meet with death is to ignore
G the obvious realities and to stultify the wider connotation
of the expression of war chosen by the drafters of IPC. ·
n) The undoubted objective and the determination
of the offenders was it to impinge on .the sovereign
authority of the nation and ·its government.
H [Para 138][155-8-H; 156-A-H; 157-A]
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 23

State (NCT of Delhi) v. Navjot Sandhu @ Afsan A
Guru 2005 (2) Suppl. SCR 79 : (2005) 11 sec
600; Mohammed Ajmal Mohammad Amir Kasab
@Abu Mujahid v. State of Maharashtra 2012 (8)
SCR 295: (2012) 9 SCC 1-140- relied on.
8.2 On application of the principles on waging of B
war to the instant case, the following factors are relevant:
a) Of the 17 accused who were proceeded against
the appellant 'A', deceased 'Z' and deceased 'S' are
all Pakistani nationals.
b) 'AS' who had develo·ped close contact with
c
appellant 'A' having joined Jehadi movement was
in close contact with the leader of terrorists
organization in the years 1991 to 1993.
c) 'AS' along with appellant 'A' were undergoing 0
punishment in Tees Hazari Court for such related
offences under POTA/ TADA.
d) After his release from Tihar Jail when 'AS' came
back to Calcutta in 1999 there was no repentance,
instea.d his agenda in association with appellant 'A' E
was to intensify his Jehadi activities and for that
purpose associated his childhood friend appellant
'N'.
e) In pursuance of the said objective it is found that
appellant 'N', 'A', 'AS' along with 'Z', 'S', 'SD', 'HI', F
'AD' and others formed a group and were in close
contact with each other from the middle of 2001 and
the various circumstances satisfactorily
demonstrated before the Court by the prosecution
till the final act o,f commission of attack on the G
· American Centre disclose that there was definite
mindset iri them to wreck vengeance against the
State.
f) The activities of the deceased 'AS' immediately
after the formation of their movement after 1999 H
24 SUPREME COURT REPORTS (2014] 14 S.C.R.

A along with appellant 'N' and under the. leadership
of appellant 'A', wanted to make quick money by
indulging in kidnapping activities and from them-
gotten money procured arms and ammunitions and
o.rganized a movement along with Pakistani
B nationals to wreck vengeance by developing an
impression as though the Muslims in this country
were not properly taken care by the State.
g) In that process, when 'AS' got killed on
oa ..12.2001, the intention of th,![! members of the gang
c got further intensi·fied ·and the prime accused
. appellant 'A' who was the guiding factor for the other
members of the gang felt that killing of 'AS' by the
police is an affront to their movement and that a
serious revenge was called for against the police
D and the state. In this respect, the letter of appellant
'A' assumes great significance. That apart the
evidence of PW-39, younger brother of 'AS' as
·stated in his evidence .that he had heard his brother
discussing with Dr. MA and 'AD' that Government
E of India was not considerate towards Muslims and
therefore, the government should be taught a .
·lesson.
h) A cumul.ative effect of the above factors
apparently resulted in the appellants along with the
F absconding accused and the deceased 'Z', 'S' and·
'SD', who is now facing trial who were all detemiined ·
to commit hazardous attack which would make the
·State feel the vulnerability of their actions.
i) In the course of the conspiracy the gang members
G made deliberations in consultation with appellant
'A' through electronic communication namely e-mail
as to which place is to tie attacked and if attacked
whether such attack would have serious·
repercussions on the State and the extent of
H
MD. JAMILUDIN NASIR v. STATE OF WEST 6ENGAL 25

disturbance it would create among the public at A
large.
j) The ultimate act committed namely, planned
attack on the police force who were assigned the
duty of providing security of the American Centre
on 22.01.2002 at 6.30 a.m. was felt by the assailants B
as the greatest achievement on their part which
was celebrated by them on 26.01.2002 in the flat of
appellant 'N'.
k) The Indian Government as a member of the
United Nations is duty bound to provide necessary C
security to the foreign consulate officers located in
this country by virtue of international treaties.
Therefore, the decision of the appellants along with
the other gang members in having chosen the
police security force posted outside the American · D
Centre to launch their attack and having succeeded
in their attempt, is yet another factor in this
regard.[Para 140][158-8-H; 159-A-H; 160-A-D]
8.3 The said factor which have been found
established in the case on hand would go to show that E ·
the appellants along with the absconding accused and
'SD', who is now facing trial, really waged a war or
attempted to wage a war against the Government of
India, for which they all conspired together and thereby,
committed the offence falling under Sections 121; 121A F
and 122 read with 1208 IPC. The conclusions are based
on the findings as recorded below: ·
• From the evidence on record, it is found that the
intention of the accused collectively and
individually was a defiant of raging attitude G
against the State.
• Though the number of accused were not many in
number like that of a manpower required in a
battle field, the mindset of each of the accused H
26 SUPREME COURT REPORTS . [2014) 14 S.C.R.

A was loaded with such animosity against the State
and its machinery (viz) the police force, the act
of the assailants at the spot virtually displayed
the vicious mindset of all those who were behind
it
B •Though the chosen assailants by the conspirators
were only two in number, the vengeance with
which they indulged in the attack at American
Centre towards the police force and the extent
of damage they caused demonstrated the
c diabolic mindset of all the conspirators in
committing the crime.
• Though the actual assailants were only two in
number at the spot of occurrence, the 'execution
of the assault, which resulted in the killing of five
·o policemen and injury caused to around 15.
number of personnel, as described by the eye-
witnesses, disclosed the merciless conduct of
· the whole lot of accused. The scene of
occurrence as stated by the witnesses, gives a
E feeling as though it was like a battle field and a
war like situation was created, though no pomp
and pageantry usually associated With war was ·
not present.
• This is not an offence due to an outcome of a
F lawlessness of a group of individuals who
indulged in such a crime unaware of the damage
and destruction it would cause. On the. other
hand, it was an act committed with all preparation
and with· a determination to cause damage of
unimaginable extent to men and material.
• The act indulged in by the accused cannot also
be attributed to any public cause or public good
in order to state that even thoug}l the target of
attack was towards police force posted at
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 27

American Centre, there was no hippocratic A
mindset behind such attack.
• However, much one would attempt to mitigate the
acts indulged in by the accused and the assailant
it-is difficult to comprehend that the accused did
not intend to commit an offence of such high B
magnitude, but were only intended to resort to a
simple revenge. On the other hand, the intent and
purpose of the attack was to create an indelible
mark in the mind of the State that their group can
go to any extent when it comes to the question C
of implementing their wrong perceptive Jehadi
movement.
• The target of attack chosen after considerable
deliberation by the conspirators, namely, the
American Centre and the police force posted D
there was sufficient to demonstrate that once the
attack is executed, the State Machinery should
realise the vulnerability of the group committing
such offence who cannot be ignored for all time
to come. E
• The object of the conspirators was to create a
panic in the mind of the public at large and a
horrendous threat to be felt by the State about
the accused/assailants and all those who are
behind such.conspiracy. The consequence of F
. such an attack also conveys an impression on.
the State to be on the alert always to face such
and even more intense attacks in future which
would pose a constant challenge to the State and
the democratic Constitution. ;G
• The act of the accused/assailants was not a mere
desperate act of a.small group, but was an act of
higher magnitude with a clear object and
determination to impinge on the SOVEREIGN
H
28 SUPREME COURT REPORTS [2014] 14 S.C.R.

A AUTHORITY of the Nation· and its
Government.[Para 141][160-E-H; 161-A-H;
162-A-F] . ,
.. 8.4 The detailed discussion of the charges found
proved and based on the medical evidence it was
B sufficiently established that.in the attack made by the
appellants along with the absconding accused and 'SD'
at American Centre on 22.01.2002 had killed as many as .
five police personnel and injured 15 number of police
personnel and other persons. Such offence committed
C and found proved against them certainly constitute
offences falling under Sections 302, 307 333 read with
. 1208 IPC. Similarly, the other offences which were found
proved against the appellants, namely, the offence of
forgery falling under Sections 467, 471 read with 468 read
D with Section 1208 of IPC were also proved. The findings
of the trial court as upheld by the High Court in respect
of the offences charg.ed against the a'ppellant under
Section 427 read wi.th Section 1208 IPC y.ras also proved.
The offences fo\lnd proved against the appellant for
E having acquired and po.ssessed firearm ammunition AK
series rifles pistol 7.62 bore ammunition in contravention
of Sections 3 and 7 punishable under Section 25(1) of
the Arms Act read with 1208 IPC as well as punishable
und~r Section 27(2) of the Arpis ~ct 'read '!l'ith '.1208 IPC
F were also proved.[Paras 142,' 143][162-G, H; ~ 63-A-C]
. t' •

8.5 Sentencing is a delicate .task requiring an
interdisciplinary.approach and calls for specials.kills and
talents. A propEH sentence is the amalgam of many
. . I .

factors, such as, the nature of o.ffence, circumstances-
G extenuating or aggravating"of th'e offe.nce, prior criminal
record of the offender, age and background of the
offender with reference to education, home life, sobriety,
social adjustment, emotionall and. mental . •
ccindition,
-. - .
the
prospects for his rehabilitation
.- ·•!1 -
etc.[Para0 151][171-8,
.~ •
C] .
H
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 29

State of Uttar Pradesh v. Sanjay Kumar 2012 (7) A
SCR 359 : (2012) 8 SCC 537; Alister Anthony
Pareira v. State of Maharashtra 2012
(1) SCR 145 : AIR 2012 SC 3802; Ramnaresh
and Others v. State of Chhattisgarh 2012 (3)
SCR 630 : (2012) 4 SCC 257; State of. B
Maharashtra v. Goraksha Ambaji Adsul 2011 (9)
SCR 41 : (2011) 7 SCC 437; Swamy
Shraddananda (2) v. State ofKarnataka 2008 (11)
SCR 93 : (2008) 13 SCC 767; Rameshbhai
Chandubhai Rathod (2) v. State of Gujarat 2011 C
(1) SCR 829: (2011) 2 SCC 764; Brajendrasingh
v. State of Madhya Pradesh 2012 (3) SCR 599:
(2012) 4 sec 289 - referred to.
Law of Cnines by Ratan/al& Dhirajlal 26th Edn
p 185 - referred to. D
8.6 Under Section 121 for the offence of waging or
attempting to wage war or abetting waging of war against
the Government of India, the punishment provided is with
death or imprisonment for life and also liable to
imposition of fine. Under Section 354(3) Cr.P.C., when E
the conviction is for an offence punishable with death
or in the alternative with imprisonment for life or
imprisonment for term of years, the judgment should
state the reasons for the sentence awarded and in the
case of sentence of death the special reasons for F
awarding such sentence.[Para 152][171-D, E]
8.7 The fundamental principles to be borne in mind
while dealing with the sentence to be imposed in respect
of crimes committed of such grotesque nature are: the
sentence to be awarded shou_ld achieve twin objectives- G
deterrence and correction. The Court should consider
social interest and consciousness of the society for
awarding appropriate punishment. Seriousness of the
crime and the criminal history of the accused is yet
another factor. Graver the offence longer the criminal H
30 SUPREME COURT REPORTS [2014] 14 S.C.R.

A record should result severity in the punishment. Undue
sympathy to impose inadequate sentence would do
more harm to the public. Imposition of inadequate
sentence would undermine the public confidence in the
efficacy of law and society cannot endure such threats.
B [Para 153)(171-F-H; 172-A-C]
8.8 In cases of this nature where charges u/ss. 121,
122, 121A rw 1208 IPC as well as 302 IPC are involved,
other principles should also 'be kept in mind, namely:
The intention and purpose behind the waging of war
C against the State should be ascertained. The modus
operandi adopted which involved mobilization of men
materials such as arms and ammunitions indulging in
serious conspiracy over a period of time·are another
relevant factor. It will not depend upon the number of
D persons-even limited persons can indulge in more
harmful crime than large crowd of persons could do.
There need not be pomp and pageantry like a battle field.
Not all violent behaviour would fall within the prescription
of waging war as stipulated u/ss.121, 121A, 122rw1208.
E The object sought to be achieved should be directed
against the sovereignty of the State and not merely
commission of crime even if it is of higher velocity. The
concept of 'waging war' should not be stretched too far.
A balanced and realistic approach should be maintained
F while construing the offenc.e committed and find out
whether it would amount to waging of war against the
State. Mere organized movement with violence without
. any intention of acti_ng against the interest of the nation
has to be examined. Neither the number engaged nor
G the .power employed nor the arms used can be the
criteria. It should be seen as to what is the purpose
behind the choosing of a target of attack. When a
planned operation is executed, what was the extent of
disaster resulted, is to be seen. It is to be seen whether it
H
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 31

is a mere desperate act of a small group of persons who A
indulged in the crime. It must be seen whether the
undoubted objective and determination of the offender
was itto impinge on the sovereignty of the nation. In this
context the expansive definition of government of India
should be understood. [Para 154][172-D-H; 173-A-E] B
8.9 All the offences committed by the appellants are
of a very high magnitude and it has created an indelible
scar especially when the offence of such nature has
been committed with the support of foreign nationals of
the neighbouring country. Therefore, there is every C
justification in the State machinery in having pro.ceeded
against the appellants and other accused for the
offences u/ss. 121, 121 A, 122 rw 1208 IPC as well as the
charges u/ss. 302, 307, 3}3rw1208 IPC. The magnitude
of the offences,.the manner in wh.ich it was carried out, D
the disastrous effect it caused which resulted in loss of
life of five police personnel apart from seriously injuring
around 15 number of police personnel and other
civilians, the animus with which the offence came to be
committed were all factors which persuaded the courts E
below to hold that the extreme punishment of death
should be awarded for the appellants. However, having
given a serious thought and consfderation to the nature
of punishment to be imposed on the appellants, it is
found that from the year 1999 after the release of 'AS' F
from Tihar Jail where he developed close contact with
appellant 'A' and whereafter when he came to Calcutta,
the evil desire was formulated for which purpose the
assistance of appellant 'N' was also taken by luring him
with sustained income for him. Though it could be G
noticed that at the time when appellant 'N' joined hands
with 'AS', his involvement in such serious activities
affecting the society was not existing,. after associating
himself with !AS', he was definitely aware of the nature
H
32 SUPREME COURT REPORTS [2014] 14 S.C.R.

A of activities indulged in by 'AS' along with 'A' and others.
Even on his own self, it was revealed that he was aware
that in 1991 'AS' went to Kashmir and joined Jehadi ·
movement. In spite of such knowledge about the
involvement of 'AS' in such unlawful activities, affecting
B the nation as a whole, when he gained further knowledge
about his involvement and association with persons like
appellant 'A' and other Jehadis, it did not occur to him to
detach himself from the association of 'AS'. On the other
hand, when in the initial stages of his re-union with 'AS',
c appellant 'N' was introduced to appellant 'A', 'Z', 'S', 'SD',
'HI' and. others over a period of time, it has come out that
knowing.full well of the illegal activities of the associated
accused, appellant 'N' continued to join hands along with
them in executing very many ~sks assigned to him by
o 'AS' and 'A' till the demise of 'AS' and thereafter by
appellant 'A' who was in constant touch with appellant
'N' and other accused by passing on messages through
email. In fact, 'A' was called by the gang members as
'Bhaisahab' signifying that he was leading the whole
E group of the conspirators.[Para 155][173-F-H; 174-A-H;
175-A]
8.1 O Having noted the extent of participation of
appellant 'N' and 'A', it is certain the that role of appellant
'A' is of very high magnitude, the role of appellant 'N' is
F slightly lesser in degree as compared to that of appellant
'A', though the magnitude of the crime committed by both
of them· along with the other accused cannot be
differentiated amongst them. In the light of the
assessment relating to the nature of involvement of
G appellant 'N' who was mainly acting based on the
directions of appellant 'A' and other accused, on many
occasions he also played a key role, such as in the
matter of arranging for fake passports, getting premises
for the gang members to hold their meetings for
H conspiracy, accommodating the arms and ammunitions
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 33

brought by other members in pursuit of their common A
object, arranging for the transportation of other accused
to the city Calcutta, i.e. the place of occurrence and also
by drawing the required sketch for the movement of co-
accused to carry out the operation to be executed at the
targeted place (viz) American Centre. On the basis of B
evidence on record, it is found that appellant 'A', though
was operating behind the screen, he was the brain
behind the whole scene of occurrence. He was the
mastermind and schemed it in such a way to make it
appear as though he had no role to play but in reality he c
formulated the evil design and by using 'AS', appellant
'N', 'Z', 'S', 'SD' and the rest of the conspirators tow in
line with him and executed the inferno (Scene of Horror)
successfully to the detriment of the State. Therefore,
while the involvement of appellants 'A' and 'N' in respect o
of the offences for which they were charged and found
proved are devilish, diabolic, horrendous, vicious,
wicked and its magnitude cannot be lessened on any
account, the role of appellant 'N' was always a shade
lesser than what can be attributed to appellant 'A'. E
[Para 156][175-B-H; 176-A]
8.11 Having regard to the said conclusion, while at
the same time, the nature of crime namely, the attack on
the police force posted at the American Centre on
22.01.2002 at 6.30 a.m. in which five police personnel F
were killed and around 15 number of police personnel
and other civilians were grievously injured apart from
causing damage to the public property which definitely
constituted the offences falling under Sections 121,
121 A, 122, 302, 307, 333 read with 1208 as well as other G
provisions of IPC and Arms Act, this case cannot be
equated with the case in Navjot Sandhu @Afsan Guru
or Mohammed Ajmal Mohammad Amir Kasab 's case as
also Mohd. Arif@Ashfaq's case. Therefore, even while
H
34 SUPREME COURT REPORTS [2014] 14 S.C.R.

A holding that the charges found. proved against the
appellant are of grave in nature, when it comes to the
question of sentence, the imposition of death penalty is
not warranted in the facts and circumstance·s of the case
though it calls for other deterrent punishment.
B [Para 157][176-A-E]
State (NCT of Delhi) v. Navjot Sandhu @ Afsan
Guru (2005) 11 SCC 600-138, 140; Mohammed
Ajmal Mohammad Amir Kasab@ Abu Mujahid
v. State of Maharashtra (2012) 9 SCC 1; Mohd.
C Arifv. State (NCTofOe/hi) (2011) 13 SCC 621-
distinguished.
8.12 The guilt of all the charges found proved
against both the appellants by the trial court,· as
confirmed by°the High Court is upheld, except the charge
D under Section 27(3) of the Arms Act which alone is set
aside, as a result, the imposition of death penalty for
offence u/s. 27(3) is set aside. For the offences which
have been found proved and confirmed in these appeals
against the appellants, while for the appellant 'N' the
E punishment of death for the offence u/ss.121, 121A, 122
. rw 1208 IPC is modified as one of_ life and he would
undergo Rigorous Imprisonment for a minimum period
of 30 years without any remission and appellant 'A' would
undergo imprisonment of life till the end of his life. All
F the other sentences imposed on the appellants are
maintained which as held by the courts below would run
concurrently. [Paras 159][178-C-F]
Gopal Vina yak Godse v. The State of Maharashtra
and others 1961 SCR 440 : AIR 1961SC600-
G relied on.
Sandeep v. State of Uttar Pradesh 2012 (5)
SCR 952: (2012) 6 SCC 107; Mohinder Singh v.
State of Punjab 2013 (3) SCR 90: (2013) 3 SCC
294; Ram Singh v. State ofRajasthan (2012) 12
H SCC 339; Shivappa v. State of Karnataka 1994
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 35

(6) Suppl. SCR 171 : (1995) .2 sec 76; Aloke A
Nath Dutta and others v. State of West Bengal
2006 (10) Suppl. SCR 662: (2007) 12 sec 230;
Alamgir v. State (NCT, Delhi) 2002 (4) Suppl.
SCR 88 : (2003) 1 SCC 21; Khushal Rao v.
State of Bombay 1958 SCR 552 : AIR 1958 SC B
22 - referred to.
Case Law Reference:
2012 (4) SCR 608 relied on Paras 11, 80
135,136
(2012) 12 sec 339 referred to
c
Paras 48, 72
1994 (6) Suppl. SCR 171 referred ta Paras 50, 53
2003 (1) SCR 506 referred to Paras 50, 55,
131
2006 (10) Suppl. SCR 662 referred to Paras 50, 57 D
1964 SCR 623 referred to Paras 68, 77
115,1_16
2002 (2) Suppl. SCR 31 referred to Paras 68, 116
1999 (3) SCR 1 referred to Paras 68, 76, E
129
2002 (4) Suppl. SCR 88 referred to Paras 68, 77
1958 SCR 552 referred to Para 72
2011 (1) SCR 929 referred to Paras 76, 117
F
2012 (8) SCR 295 relied on Paras 139,147

JT 2013 (5) SC 142 referred to Para 107
2003 (2) Suppl. SCR 335 referred to Para 109
(1971) 3 sec 432 referred to Para 109 G
1952 SCR 1091 referred to Para 114
(1961) B.L.R. 661 referred to Para 123
(2003) s sec sss referred to Para 123
H
36 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 1988 (2) Suppl. SCR 24 distinguished Para 127
1987 (2) SCR 962 distinguished Para 133
2005 (2) Suppl. SCR 79 relied on Para 137
2012 (7) SCR 359 referred to ·Paras 144,150
B
2012 (1) SCR 145 referred to Para 145
2012 (3) SCR 630 referred to Para 148
2011 (9) SCR 41 referred to Para 149
2008 (11) SCR 93 referred to Para 150
c 2011 (1) SCR 829 referred to Para 150
2012 (3) SCR 599 . referred to Para 150
2011 (10) SCR 56 distinguished Para 157
2005 (2) Suppl. SCR 79 distinguished Para 157
D 2012 (8) SCR 295 distinguished Para 157
1961SCR440 relied on Para 158
2012 (5) SCR 952 referred to Para 158
2013 (3) SCR 90 referred to Para 158
E CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 1240-1241 of2010.
From the Judgment and Order dated 05.02.2010 of the
High Court at Calcutta in Death Reference 2 of 2005 in
Sessions Case No. 79 of 2002 with C.R. A. No. 428 of 2005.
F WITH
Crl.A. Nos. 1242-1243 of2010.
Nitya Ramakrishnan, Sarim Naved, Ms. Ria Singh
Sawhney, Ms. Manika Tripathy Pandey for the Appellant.
G Siddharth Luthra, ASG, Ashok Kumar Panda, Sr. Adv.,
Anip Sachthey, Manoranjan Paikaray, Saakaar Sardana, Arjun
Dewan,Advs. for the Respondent.
•

H
MD. JAMI LU DIN NASIR v..STATE OF WEST BENGAL 37

The Judgment of the Court was delivered by A
FAKKIR MOtJAMED IBRAHIM KALIFULLA, J. 1.
These appeals arise out of the common Judgment of the High
Court of Calcutta in Criminal Appeal No.428 of 2005 which
was preferred by Nasir and Aftab together. The said Judgment
was rendered on 05.02.2010 in Death Reference Case No.2 B
of 2005 in Sessions Case No. 79 of 2002 as well as Criminal
Appeal Nos.247 of 2005, 377 of 2005, 425 of 2005 and 428
of 2005. The Appellant in Criminal Appeal Nos.1240-41 of
2010 is Mohd. Jamiludin Nasir (hereinafter referred to as
'Nasir'). The Appellant in Criminal Appeal Nos.1242-43 of C
201 O is one Aftab Ahmed Ansari (hereinafter referred to as
'Aftab').
2. The Sessions Case was tried by the learned Judge
Xllth Bench, City Sessions Court at Calcutta in Sessions Case
No.79 of 2002. The FIR was registered on 22.01.2002 in FIR D
No.19 for offences under Sections 121, 121A, 122, 120B, 302,
333, 427 and 21 Indian Penal Code, 1860(hereinafter referred
to as 'IPC'), as well as Sections 25(1 B)(a) and 27 of the Arms
Act, 1959(hereinafter referred to as 'Arms Act'). The FIR was
registered at 06. 36 a. m. The date and time of the occurrence E
was noted as 22.01.2002, 06.30 a.m. The General Diary
(hereinafter referred to as 'G.D.') entry number was 1_889 in
the Shakespeare Sarani Police Station. The place of
occurrence was noted as in front of the American Centre, 38H,
Jawaharlal Nehru Road, which was stated to be located 1Y. F
km North-West of the Police Station. The name of the
Complainant was Shri Barun Kumar Saha. According to the
Prosecution, as many as 17 accused were involved in the
offence, out of which only 9 faced Trial and from the remaining
8, there were 6 absconders out of whom one is now facing G
Trial and the remaining 5 continue to remain absconding. Two
of the offenders, namely, Zahid and Salim died in an encounter
on 27 .01.2002, at a place called Hazaribagh, that is how 9
accused alone came to be tried in the Sessions Case No. 79
H
38 SUPREME COURT REPORTS [2014] 14 S.C.R.

A of 2002. By a Judgment dated 26.04.2005, the Trial Court found
A 1-Mohd. Jamiludin Nasir, A2-Adil Hassan, A3-Rehan Alam,
A6-Musarrat Hussain, A7-Nushrat Alak, A8-Aftab Ahmed
Ansari and A9-Shakir Akhtar guilty of charges under Sections
121A, 121, 122 of IPC and Sections 302, 307, 333, 467, 471
B and 468 JPC read with Section 1208 of JPC. They were also
found guilty of the offences under Sections 25(1A), 27(2), and
27(3) oftheArmsAct read with Section 1208 of IPC. The trial
Court in its Judgment ultimately convicted A 1-Jamiludin Nasir,
A2-Adil Hussain, A3-Rehan Alam, A6-Musarrat Hussain, A7-
C Hasrat Alam, A8-Aftab Ahmed Ansari and A9-Shakir Akhtar
and acquitted A4-Mohd. Shakeel Mallick and AS-Patel Dilip
Kumar Kantilal of all the charges framed against them and
were set at liberty forthwith if not required in any other case.
Thereafter, by its order dated 27.04.2005, imposed the
o sentence of death for the offence under Section 27(3) of the
Arms Act as mandated under the said provision, sentenced
them to death forthe charge under Section 121 IPC apart from
other sentences of imprisonment for offences under Sections
121A, 122, 302 read with 1208, 307 read with 1208, 333
E read with 1208, 467 read with 1208, 471 read with 1208 and
468 read with 1208 of IPC 25(1A), 27(2) and 27(3) of the
Arms Act read with 1208 IPC. The trial Court held that all the
convicts who were found guilty were to be hanged till death
subject to confirmation by the High Court and all the sentences
F to run concurrently.
· 3. Bythe impugned Judgment, the High Court acquitted
A2-Adil Hussain, A3-Rehan Alam of all the charges. In so far
asA6-Musarrat Hussain, A7-NushratAlak and A9-Shakir Akhtar
are concerned, the Court acquitted them of the offence of
G waging of war but convicted them only for the offences under
Sections 467 read with 1208, 468 read with 1208 and 471 .
read with 1208 IPC and thereby imposed a lesser sentence.
As far as A1-Mohd. Jamiludin Nasir and A8-Aftab Ahmed
Ansari are concerned, the High Court confirmed their
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 39
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

conviction, as well as the sentence imposed by the trial Court A
on all counts. While A1-Nasir and AS-Ansari have come
forward with the above appeals, the State has filed Criminal
Appeal Nos.1244 to 1247 of 2010 as against that part of the
Judgment of the High·Court which modified the conviction and
sentence in respect of A6-Musarrat Hussain, A7-HasratAlam B
and A9-Shakir Akhtar. Though, the above appeals were also
posted along with the present appeals, which were being
disposed of by this Judgment by our order dated 23.04.2014,
we have de-tagged the said appeals for want of time. We are,
therefore, now concerned only with the appeals filed by Nasir c
and Aftab. One other fact to be mentioned is that the acquittal
of A4-Mohd. Shakil Mallick and A5-Patel Dilip Kumar Kantilal
by the trial Court was not even challenged by the State before
the High Court.
4. The case of the Prosecution as narrated before the D
Courts below can be stated as thus: one Asif Reza
Khan(hereinafter referred to as 'Asif'), who was detained in
October-November, 2001 in connection with the kidnapping
of one Khadim, happened to meet Aftab in Tihar Jail where
both of them were under detention. While Asif is a resident of E
Calcutta, Aftab is stated to be an Indian National as per the
Chargesheet. While they were in detention in Tihar Jail, they
stated to have developed friendship which later on gave scope
for Aftab's irivolvement in the crime with which we are
concerned. As the narration· goes, Asif and Nasir were F
childhood friends as they happened to have their initial
education in a Madarsa upto High School level though
thereafter, they were separated. It is also the case of the
Prosecution that some time in 1991 Asif had been to Kashmir
and was in contact with one Salahuddin and Dr. Mushtaq G
Ahmed who made him feel that he should involve himself much
more deeply in Jehadi movement. In the above-stated
. background when Asif happened to meet Aftab in Tihar Jail,
where both of them were under detention in the year 1998/
H
40 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 1999, their ideology seemed to have enabled them to develop
close relationship. It is also stated thatAsifwas released from
Tihar Jail in the year 1999 and met Nasir in Calcutta who was
by then married and was on the look out for a job as he had
just then left the avocation in which he was placed. Asif stated
B to have assured Nasir of continued employment with him
having regard to their childhood relationship, which persuaded
Nasir to join hands with Asif in the year 1999. Asif while inviting
.Nasir to extend his services in his business ventures, namely,
export of leather garments along with his associates, also
c wanted him to get a suitable accommodation for one Niaz
Hussain to set up his leather export business venture. Nasir
was a resident of No.46, Tiljala Lane. When the building in
No.1, Tiljala Lane was developed at that time, Nasir stated to
have approached the developer, namely, PW-47, who also
o offered one of the flats in the ground floor of No.1, Tiljala Lane.
At the behest of Nasir, Niaz Hussain was able to clinch the
deal of securing the ground floor premises of No.1, Tiljala Lane,
initially by paying an advance sum of Rs.98,000/- and the
balance amounts in Rs.2000/-, Rs.1,00,000/- and Rs.60,000/
E -, in all a sum of Rs.2,60,000/-. The possession of the said
premises was stated to have; been handed over to Niaz
Hussain, as well as his brother Fiaz Hussain in the month of
April/July 2001. Be that as it may, after the initial association
of Nasir with Asif in the year 1999 as their close intimacy
F developed further, Asif stated to have issued directions to Nasir
for carrying out various assignments such as securing a fake
passport for himself, as well as, for his friend, namely, Aftab in
different names. Such fake passports stated to have been
arranged by Nasir through a person in the passport office of
G Bihar. That apart, as was instructed by Asif, Nasir was sent to
Agra and Jaisalmer. Nasir was introduced initially at Banaras
toAftab who according to Asif was his fast friend and that Nasir
should function as directed by his close friend Aftab in all future
endeavours through emails.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 41
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

5. In October, 2001 Asif introduced Nasir to Zahid, Salim A .
and Sadakat when he went to Agra forthe second time. In the
first week of September, 2001 as per Asif's email, Nasir
secured a rented flat at Khan Road, Khirgaon, Hazaribagh.
After taking over possession of the ground floor flat at No.1,
Tiljala Lane, it is stated that that was a place earmarked for all B
future meetings and on one occasion Asif deliberated that to
raise mcire funds they should indulge in kidnapping activities.
It appears that it was in that process Asif stated to have been
detained in the case of kidnapping of one Khadim some time
in October-November, 2001. It is further stated that in c
December, 2001 while he was in detention and was being
enquired at Bhawani Bhawan, he was shifted to Rajkot at
Gujarat where he was stated to have been killed in an encounter
on 08.12.2001. When Asif met with his death on 08.12.2001,
Zahid stated to Nasir and other gang members to take certain D
serious revenge actions and that they should wait for Aftab's
orders for the same. Based on certain instructions issued by
Aftab to Nasir, Sadakat and Zahid who came to Calcutta on
14th to 16th January, 2002, were lodged in the No.1, Tiljala Lane,
Calcutta. The e-mail messages forwarded to Nasir and E
exchanged between Zahid, Sadakat and Aftab stated to have
revealed that the untimely death of Asif in the encounter at
Rajkot required to be retaliated in equal force and that should
teach a lesson to the Government of India and the Police
Personnel. With that object in mind, the whole emissary of the F
gang led by Aftab, which included Nasir, Sadakat, Zahid, Salim
and others operated. The master mind was stated to be that
of Aftab who was also supported with different ideas by Zahid,
Salim, Sadakat and Nasir. In one of the messages forwarded
to Nasir by Aftab which was also forwarded to the other G
accomplices it was said that there should be an attack on
Bhawani Bhawan, where Asif was taken after his detention in
Khadim's case for interrogation. To the said suggestion, Nasir
stated to have replied that it would not be a good proposition
. as many civilians would be seriously affected and the Minority H
42 SUPREME COURT REPORTS [2014] 14 S.C.R.

A Commission office was also near to. Bhawani Bhawan.
Thereafter, Aftab stated to have suggested as to whether their
attack can be directed towards any American base where also
large number of police security was being provided. While the
said proposal of Aftab was considered for implementation by
B the other gang members, namely, Nasir, Zahid, Salim, Sar:dkat
and others in the month of January, 2002, namely, on 19'", 20'"
and 21 ''survey was stated to have been made by the above
stated g_ang members of the Consulate Office of America, as
well as the American Centre. Thereafter, it was suggested
C again byway of an e-mail message toAftab that the American
Centre would be an ideal target as they found that the police
security personnel were in large number, that they were
operating in shifts, that one such shift was taking place in the
early morning at around 6-6.30 a.m. and that the police
o personnel were very lackadaisical in their duties. The said
proposal was suggested by the gang members toAftab. It was
thus stated to have been cleared by Aftab and thereafter, the
plan was worked out by the other gang members of course
with the consultation of Aftab by which a close survey was made
E on 20'" and 21 ",January, 2002. Initially a decisiori was taken
to cause the atta~k on 21.01.2002, which was not carried out
andAftab was informed through an email about the same while
he was assured that the attack will be successfully carried out
on 22.01.2002.
F 6. In pursuance of the above object, it is stated that the
gang members had assembled at No.1, Tiljala Lane where
Blue Colour Maruti 800 Car bearing Registration No.BRK-
4907 and a Black Colour Suzuki Motorcycle WB-01-P 2144
were also kept in the premises which was used on 19'", 20'"·
G 21" and 22"d Janu·ary, 2002. After the initial rehearsal, stated
to have been made on 19'", 20th and 21'', on 22.01.2002
morning while Nasir and Khurram Khaiyam @Abdullah left
No.1, Tiljala Lane in the Maruti Car and parked their vehicle at
Rippon Street Circular Road Crossing opposite Panjabi Tea
H Stall that (deceased) Zahid and Sadakat (now facing Trial) who
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 43
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

also left No.1, Tiljala Lane in the early hours of the morning A
went to the targeted place, namely, American Centre around
6.30 a.m., that while Zahid was riding the bike atthe spot in a
slow speed, Sadakat stated to have opened fire with AK-4 7
rifle/automatic gun in a close range of about 1O to 15 feet
towards the police personnel who were changing their shift B
and while carrying out the said operation, shouting "A sob
sarkari kutta logo key markey ura deo" got into the pillion of
the bike driven by Zahid which reached Rippon Street Circular
Road Crossing where Nasir and Abdullah were waiting in the
Maruti Car. After reaching the said spot Zahid stated to have C
proclaimed that the mission.was carried out (KAAM HO GAYA)
as planned and that Sadakat who was the pillion rider with
Zahid stated to have got into the back seat of a Maruti Car
and thereafter, the car and the bike left the Rippon Street
Circular Road Crossing. Since, in the rehearsal session on D·
20'h and 21st some passer byes at Rippon Street Circular Road
Crossing happened to note the presence of the Maruti Car
driven by Nasir and the Bike driven by Zahid due to some minor
altercation at the spot, they were cited as Witnesses. In fact,
PW-62 who along with one Gilbert Gomes were present during E
the said altercation at the same place, came to hear about the
incident at American Centre after they came back to the
neighbourhood. They went to Lalbazar to meet PW-101, Abu
Saleh who was their neighbour and was posted at OC. They
shared their apprehensions of the connection of the same F
vehicles and the persons involved at the altercation with the
American Centre attack. PW-101 reported the same to PW-
123 and stated thatthe description of the attackers' attire, the
vehicles and the time of attack match with the incident reported
to him by PW-62 and his friend. However, based on the G
complaint made by Barun Kumar Saha PW-6 to Shakespeare
Sarani Police Station through Wireless Centre, an FIR was
registered. PW-123 was entrusted with the investigation along
with a team. Subsequently, a team from Delhi stated to have
visited Calcutta City Police informing about the. hiding of certain H
44 SUPREME COURT REPORTS [2014] 14 S.C.R.

A militants in the city who are to be apprehended. A team was
formed to find out the hideouts, through a reliable information
about the hideout of the terrorists in Khan Road, Khirgaon and
Hazaribagh. In pursuance to the said development, that place
was surrounded by the police to nab the terrorists.
B 7. The police team which proceeded to Khan R·Jad,
Khirgaon, Hazaribagh at 6.45 a.m. cordoned the premises and
suspecting the inmates to be militants, stated to have·
announced that they should surrender putting down whatever
weapons they possessed. While doing so, when they noticed·
C two of the inmates escaped through the side gate shooting at
the police and in the cross fire both of them were injured. When
the injured were taken to the hospital, on the way, one of the
injured by name Zahid made an oral dying declaration to PW-
113 that he was one of the persons involved in the shooting
D spree at the American Centre, that he was the shooter and
one Sadakat was the driver of the motor bike. The said Zahid
stated to have died enroute the hospital. The other person
Salim was admitted in the hospital who too later died. This
happened on 27-28.01.2002. After the encounter that had
E taken place at Hazaribagh, while the shootout incident at
American Centre was investigated by PW-123, who was
heading the special investigation team, he received a vital
information on the intervening night of 28-29.01.2002 at about
1.30 a.m. According to PW-113, on 20.01.2002, Calcutta
F Police arrived at Hazaribagh and a seizure list Exhibit-246 of
PW-106's house which was rented to Nasir was handed over.
According to the seizure list, two jackets were found which
matched the attire of.theAmerican Centre attackers. This is
how the search for Nasir since he was the tenant was started
G at 64, Tiljala Lane which was the fake address given by him at
the instance of Asif on the said rent agreement. Through
investigation, Nasir's address was found to be 46, Tiljala Lane.
In pursuance of the said search, PW-123 went to No.13,
Dargah Road which is the house of in-laws of Nasir, where he
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 45 .
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

took Nasir into custody and based on his information made a A
search at No.1, Tlljala Lane where the Maruti Car and the Motor
bike were seized. In fact after the commencement of his
investigation on 22.02.2002 evening, the team of PW-123 was
approached by PW-62, and one Gilbert Gomes (not examined)
through the Inspector PW-101, Lalbazarwho made statements B
relating to the incident of firing in front of American C~ntre and.
their statement revealed the use of Maruti Car and the Suzuki
Motor bike at Rippon Street Circular Road Crossing. After
landing at No.1, Tiljala Lane PW-123 could gather very many
vital clues which led him to ultimately arrest of Aftab, who was c
already arrested by Dubai Police on 23.01.2002 and deported
him to India on 09.02.2002. PW-123 could secure his custody
through Court order on 23.02.2002. Based on Aftab's ·
information, the residence of Asif was also searched where a
diary maintained by Asif and a letter Exhibit-46/1 written by D
Aftab to the wife of Asif after Asif's demise was also seized.
The letter was addressed to Bhabhiji for taking avenge on
death of Asif. Later PW-105, a handwriting expert proved the
handwriting of Aftab. In the Hazaribagh hideout after the
encounter, PW-113 made a search of the premises where he E
could recover arms and ammunition such as AK-47 rifles,
Pakistan's national flag, bullets etc. According to PW-113, the
deceased Zahid and Salim were Pakistani nationals and were
members of Lashkar-e-Taiba, while Sadakat belonged to Uttar
Pradesh. F
8. It is in the above stated background that the
investigation team after a detailed inquiry ultimately filed its
final report in Chargesheet No.38 of 2002 dated 26.04.2002
as against 15 persons and the charges were under Sections
121, 121A, 302, 307, 333 read with 122, 427, 467, 468 and G
471 IPC. The Sessions Court, namely, the Calcutta City Court
framed the charges against A1 to A9 on 29.08.2002 for
offences under Sections 121A, 121, 122, 302 read with 120B,
307 read with 120B, 333 read with 120B, 467 read with 120B,
H
46 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 471 read with 1208, 468 read with 1208 and 427 read with
1208 IPC apart from offences under Sections 25(1 ), 27(2)
and 27(3) of Arms Act. As stated by us earlier, the trial Court
acquitted A4 and A5 of ail the charges while A 1 toA3 and A6
to A9 were convicted of charges levelled against them.
B 9. In the death reference, as well as in the appeals
preferred by Nasir and Aftab as well as the other convicts, the
High Court having confirmed the conviction and sentence
imposed on Nasir and Aftab in toto and acquitted A2 and A3
while modifying the conviction and sentence in respect of A6,
C A7 and A9 for lesser offence by the. impugned common
Judgment, we heard these appeals preferred by Nasir and
Aftab.
10. We heard Ms. Nitya Ramakrishnan fortheAppellants
and Mr. Siddharth Luthra, learned Additional Solicitor General
D for the Respondent State. We also considered the written
submissions filed on behalf of the Appellants, as well as the
State and deal with such of those submissions which are really
relevant and deliver this Judgment. At the very outset, it must
be stated that there was a detailed consideration made by the
E learned Sessions Judge of the oral evidence, as well as
documentary evidence and material objects placed before it,
while passing its Judgment on 26.04.2005. Equally, the
Division Bench of the High Court has made a thorough
consideration of the material evidence and also the correctness
F of the Judgment of the learned Sessions Judge. In fact, though
more than 100 Witnesses were examined on the side of the
Prosecution and more than 250 documents were placed before
the trial Court, we find that the crucial evidence which led to
the ultimate conviction of Nasir and Aftab were mainly based
G on the confession of Nasir and the oral evidence of PWs 1 to
123 and the Exhibits. Also based on the above evidence,
certain questions put to Nasir and Aftab under Section 313 of
Cr. P.C. were also referred.

H
MD. JAMILUDDIN NASIR v. STATE OF WEST BENGAL 47
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

11. Before proceeding further to examine the respective A
contentions, at the very outset, it will have to be stated that the
conviction and sentence imposed on the Appellants under
Section 27(3) of the Arms Act has to be set aside since the
said provision was struck down by this Court in State of Punjab
vs. Dalbir Singh - (2012) 3 SCC 346. We can usefully refer B
to the relevant conclusions reached in the said decision which
has been set out in paragraphs 85 to 91. The said paragraphs
are as under:
"85.All these concepts of"due process" and the concept
of a just, fair and reasonable law have been read by this C
Court into the guarantee under Articles 14 and 21 of the
Constitution. Therefore, the provision of Section 27(3)
of the Act is violative of Articles 14 and 21 of the
Constitution.
86. Apart from that the said Section 27(3) is a post- D
· constitutional law and has to obey the injunction of Article
13 which is clear and explicit. Article 13(2) is as follows:
'13.(3) The State shall not make any law which takes
away or abridges the rights conferred by this Part and .
any law made in contravention of this clause shall, to E
the extent of the contravention, be void.'
87. In view of the aforesaid mandate of Article 13 of the
Constitution which is an article within Part Ill of our
Constitution, Section 27(3) of the Act having been F
enacted in clear contravention of Part Ill rights, Section
27(3) of the Act is repugnant to Articles 14 and 21 and is
void.
88. Section 27(3) of the Act also deprives the judiciary
from discharging its constitutional duties of judicial review G
whereby it has the power of using discretion in the
sentencing procedure. This power has been
acknowledged in Section 302 of the Penal Code and in
Bachan Singh case it has been held that the sentencing
power has to be exercised in accordance with the H
48 SUPREME COURT REPORTS [2014] 14 S.C.R.

A statutory sentencing structure under Section 235(2) and
also under Section 354(3) of the Code of Criminal
Procedure, 1973. Section 27(3) of the said Act while
purporting to impose mandatory death penalty seeks to
nullify those salutary provisions in the Code. This is
B contrary to the law laid down in Bachan Singh~
89. In fact the challenge to the constitutional validity of
death penalty under Section 302 of the Penal Code has
been negatived in Bachan Singh in view of the
sentencing structure in Sections 235(2) and 354(3) of
c the Criminal Procedure Code. By imposing mandatory
death penalty, Section 27(3) of the Act runs contrary to
those statutory safeguards which give judiciary the
discretion in the matter imposing death penalty. Section
27(3) of the Act is thus ultra vires the concept of judicial
D review which is one of the basic features of our
Constitution.
90. It has also been discussed hereinabove thatthe ratio
in both Bachan Singh and Mithu has been universally
acknowledged in several jurisdictions across the world
E and has been accepted as correct articulation of Article
21 guarantee. Therefore, the ratio in Mithu and Bachan
Singh represents the concept of }us cogens meaning
thereby the peremptory non-derogable norm in
international law for protection of life and liberty. That is
F why it has been provided by the Forty-fourth Amendment
Act of 1978 of the Constitution, that Article 21 cannot.be
suspended even during the proclamation of emergency
under Article 359 [vide Article 359(1-A) of the
Constitution].
G 91. This Court, therefore, holds that Section 27(3) of the
Arms Act is against the fundamental tenets of our
constitutional law as developed by this Court. This Court
declares that Section 27(3) oftheArmsl\ct, 1959 is ultra
vires the Constitution and is declared void."
H
MD. JAMI LU DIN NASIR v..STATE OF WEST BENGAL 49
[FAKKIR MOHAMED IBRAHIMKALIFULLA, J.]

12. In the light of the said legal position, we have no A
hesitation in setting aside that part of the Judgment of the trial
Court as well as the High Court imposing the punishment of
death sentence as against the Appellants for the offences found
proved under Section 27(3) of Arms Act.
13. Having steered clear of the said position, when we B
proceed to examine the correctness of the conviction and
sentence imposed on the Appellant, at the forefront, we find
that the case of the Prosecution broadly depended upon the
confession of Nasir, the Appellant in Criminal Appeal No.1240-
41 of 2010. In fact realizing the serious implications of the C
said piece of evidence relied upon by the Prosecution, Ms.
Nitya Ramakrishnan for the Appellants profusely attacked the
reliance placed upon the said material evidence in the form of
confession recorded under Section 164 of Cr.P.C. on its
acceptability, reliability, veracity and also its applicability as D
against.the co-accused. We shall consider the submission of
the counsel for the Appellant at a later stage. For the present,
we wish to examine as to what the confession contains and to
what extent the gravity of the offence and the extent and
involvement of the accused who were proceeded against in E
this case were touched upon in order to appreciate the case
of the Prosecution.
14. The confession of Nasir is marked at Exhibit-201.
The confession has been recorded by PW-97- SDJM on
22. 02. 2002. After the compliance of the ingredients set out in F
Section 164 Cr. P.C., the confession was recorded in the form
of question and answer and contained as many as 19 such
questions and answers. In fact question No.1to18 were all
questions which were put by PW-97 in order to ensure that the
Appellant Nasir who made the confession should feel at eas~. G
that there was no necessity in law for him to make the
confession, that he was not supposed to make this confession
at the instance of anyone much less the police authorities, that
the facts and details mentioned in the confession may be
H
50 SUPREME COURT REPORTS [2014] 14 S.C.R.

A detrimental to his interest and may land him in conviction and
that if he so wished he can take some more time and decide
whether or not he should make the confession. We find that to
the questions put by PW-97, the Magistrate, namely, question
Nos.1 to 18, Appellant Nasir made it clear that he came forward
B to make the confession voluntarily, that he was troubled by his
conscience and to give vent to his feelings, namely, the s_in
which he committed by carrying out the attack at the American
Centre on 22.02.2002 along with other gang members which
he did in his own homeland, he was having sleepless nights
C and therefore, decided to make his confession.
15. While examining the said part of the confession
recorded by the Magistrate PW-97, namely, the questions and
answers from 1 to 18, the ingredients of Section 164 Cr.PC.
can also be noted. The ingredients of the said provision states
D that any metropolitan or judicial Magistrate can record any
confession or statement made to him in the course of
investigation of crime under the Chapter XI. The proviso to
sub-section (1) also empowers the Magistrate recoding the
confession to record it by audio-video electronic means in the
E presence of the advocates of the person accused of an offence.
Sub section (2) stipulates that the Magistrate should before
recording any such confession explain to the person making it
that he is not bound to make a confession, that the said
confession maybe used as evidence against him and that that
F apart if the Magistrate gets the impression that the persori
making the confession was not making it voluntarily he should
n0t record such a confession. Under sub-section (3) the person
who initially comes forward to make a confession can at any
time while before the confession is recorded express his
G desire or unwillingness to make the confession and in such an
event the Magistrate should not authorize police custody for
such person. Under sub-section (4) any confession should be
recorded in the manner provided under Section 281 which
provides for the recording the examining of the accused. The
H confession should be signed by the person making the
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 51
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

confession and the Magistrate should record at the foot of the A
confess.ion the prescribed format provided in the said sub-
section (4). Under sub-section (6) the Magistrate who records
the confession or statement under Section 164 should forward
to the Magistrate by whom the case is to be enquired into or
tried. Going by the prescriptions contained in Section 164, B
what is to be ensured is that the confession is made voluntarily
by the offender, that there was no external pressure particularly
by the police, that the concerned person's mindset while
making the confession was uninfluenced by any external factors
that he was fully conscious of what he was saying, that he was C
also fully aware that based on his statement there is every
scope for suffering the conviction which may result in the
imposition of extreme punishment of life imprisonment and
even capital punishment of death, that prior to the time of the
making of the confession he was in a free state of mind and D
was not in the midst of any persons who would have influenced
his mind in any manner for making the confession, that the
statement was made in the presence of the Judicial Magistrate
and none else, that while making the confession there was no
other person present other than the accused and the E
Magistrate concerned and that if he expressed his desire not
to make the confession after appearing before the Magistrate,
the Magistrate should ensure that he is not entrusted to police
custody. All the above minute factors were required to be kept
in mind while recording a confession made under Section 164 F
in order to ensure that the confession was recorded at the free
will of the accused and was not influenced by any other factor.
·Therefore, while considering a confession so recorded and
relied upon by.the Prosecution, the duty of the Sessions Judge
is, therefore, to carefully analyse the confession keeping in G
mind the above factors and .if while making such analysis the
learned Session Judge develops any iota of doubt about the
confession so recorded, the same will have to be rejected at
the very outset. It is, therefore, for the Sessions Judge to apply
his mind before placing reliance upon the confessional H
52 SUPREME COURT REPORTS [2014] 14 S.C.R. ·

A statement made under Section 164 and convince itself that
none of the above factors were either violated or given a go by
to reject the confession outright. Therefore, if the Session
Judge has chosen t6 rely upon such a confession recorded
under Section 164, the appellate Court as well as this Court
B while examining such a reliance placed upon for the purpose
of conviction should see whether the perception of the Courts
below in having accepted the confession as having been made
in its true spirit provide no scope for any doubt as to its veracity
in making the statement by the accused concerned and only
c thereafter the contents of the confession can be examined.
16. Keeping the above prescription of Section 164 in
mind, when we examine the answers of Nasir to the questions
1 to 18 we find that PW-97 explained to Appellant Nasir that
his confession s.hould be voluntary and that whether he was
D really making it on his own. Appellant Nasir also specifically
stated.that nobody including the police, enticed him to make
the statement, that no 3rd degree method was applied on him
by the police for making his confession. PW-97 also made it
clear to him that he was not a police officer, that he is a
E Magistrate of a Court, that he was not under any compulsion
to make a statement, that if he withdraws from his offer to make
the confession he will not hand him over to the police and that
he will be sent back to the jail. After explaining all the above
when he asked the Appellant Nasir about his desire to make
F the confession, he stated that he still wanted to give his
statement by adding·that he was not able to bear the pain of
his conscience and wanted to get rid of it. He also stated that
he was brought from the jail, that the previous night he was
only staying in the jail, that he had absolutely no fear in his
G mind and that he wanted to depose on his own accord. In
question No.11, the Magistrate while stating that Nasir was
free to make his statement, mentioned that such statement
might ultimately lead to his conviction and might attract either
a life sentence or even capital punishment and even after
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 53
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

explaining to that extent, when PW-97 asked him whether the A
Appellant Nasir still wanted to give the statement and asked
him to give a serious thought before answering the said
question, Nasir's answer to question No. 11 was "I know. I have
sinned and I deserve punishment." Again in question No.12,
PW-97 wanted to ascertain whether he was voluntarily making B
the statement or under any compulsion to which Nasir replied
that it was absolutely voluntary. When he was asked as to why
he wanted to make the statement Nasir replied that because
of the sin he committed by carrying out the attack on the
American Centre'on 22.01.2002 along with his gang members, c
his conscience was heavy and he felt guilty that he carried out
the attack on his own homeland and that he could not eat or
sleep and, therefore, he came forward to give the statement.
PW-97 thereafter again gave 10 minute's time for Nasir to
think over, for which Nasir replied that he did not need any o
more time and only thereafter, the Magistrate PW- 97 ·
proceeded to record the statement.
17. We find that the Magistrate did not want to give any
chance to anyone to gain the impression that the confession
which the Appellant Nasir wanted to make was recorded E
without giving him any scope to rethink or that unaware of the
consequences that he came forward to make the statement.
In fact it must be stated PW-97 was thorough with the
ingredients prescribed in Section 164 relating to the recording
of a confessiqn by an accused and that he was not carrying F
out the exercise in a mechanical way but with all earnestness
and in a highly dispassionate manner. Therefore, that part of
the requirement, namely, the procedure to be followed while
recording a confession statement has been scrupulously.
adhered to by PW-97 before allowing the Appellant Nasir to G
make his confession. Again at the end, the Magistrate certified
in the manner required under Section 164(4) and it was
mentioned that no police personnel was allowed in his
chambers when the confession was recorded.
H
54 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 18. Ms. Nitya Ramakrishnan, learned counsel while
attacking the reliance placed upon the confession by the
learned Sessions Judge, as well as the High Court submitted
that there is a serious lacuna in the recording of the confession
and, therefore, the same ought not have been relied upon. The
B learned counsel for the Appellant took us through the evidence
of PW-123, the head of the special investigating team, Mr.
Anil Kar who in his evidence stated that Appellant Nasir was
in judicial custody as between 13.02.2002 and 27.02.2002
but on 21 .02.2002, PW-110 sub-inspector M.A. Ahad produced
C Appellant Nasir before PW-123 stating that the Appellant Nasir
desired to make a confessional statement before the Court in
connection with this case and that PW-123 thereafter, sent him
before the learned Chief Metropolitan Magistrate, Calcutta with
a prayer for recording the confessional statement of the
o accused. The learned counsel submitted that if between
1'3.02.2002 to 27.02.2002, Appellant Nasir was in the judicial
custody, going by the version of PW-110 and PW-123 on
21.02.2002, it was not known how the accused was in the
custody of PW-110 the Sub"lnspector of police who stated that
E the Appellant expressed his desire to make his confession.
The learned counsel would contend that ifthe said statement
·of fact as deposed by PW-110 and PW-123 is to be accepted,
the confession which was recorded on 22.02.2002 when the
Appellant was in the custody of police, will have to be rejected
F at the very outset. According to the learned counsel, in the
above said background, the recording of the confession
creates serious doubts and aspersions inasmuch as there was
every scope for the police to have applied pressure on him
and as is the practice, custodial confession cannot be the basis
G for conviction. The sum and substance of the learned counsel
was that when Appellant was in police custody, as has been
stated by the investing officer PW-123 on 21.02.2002, the
confession on 22.02.2002 will not satisfy the ingredients set
out in Section 164 Cr.P.C. and consequently, such a confession
H cannot be taken as a valid confession made by the accused
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 55
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

in order to put the same against him for his ultimate conviction. A
19. As against the above submission, lea med Additional
Solicitor General brought to our notice a requisition made by
PW-123 on 21.02.2002 to the Chief Metropolitan Magistrate,
Calcutta on 21.02.2002 and the directions issued by the
learned Magistrate for the production of Appellant Nasir for B
recording the confession on the next day, i.e. 22.02.2002 at 1
p.m. A perusal of the letter dated 21.02.2002 of PW-123 to
the Chief Metropolitan disclose that while Appellant Nasir was
in judicial custody till 27.02:2002 in connection with the
American Centre case, in between he was also taken into C
custody by the police in respect of another case in case No.53
dated 11.02.2002 for an offence under Section 25(1 B)(a) of
ArmsAct,'that he was being produced before the learned Chief
Metropolitan Magistrate for remanding him in judicial custody
till 07.03.2002 pending further investigation. Simultaneously, D
a request was also made to the learned Chief Metropolitan
Magistrate for recording the confessional statement of
Appellant Nasir who volunteered to make the said statement
relating to the incident of American Centre. While considering
the said request made by PW-123, learned Metropolitan E
Magistrate 14th Court, Calcutta passed the directions as under:
"Thus I think that time should be given for his reflection of
mind before making any statement before me though he
volunteered himself for making confession.
Thus the Superintendent, Presidency Correctional Home, F
Alipore is directed to keep this accused Md. Jamiludin
Nasir in complete segregation from other undertrial
prisoner or stranger or from any unwarranted elements
for his reflection of mind and produce this accused before
me at 1 pm on 22.2.2002 i.e. tomorrow." G
· 20. By referring to the above, learned Additional Solicitor
General contended that the submission of counsel for the
Appellant Nasir by making reference to what was deposed by
PW-123 is fully explained.
H
56 SUPREME COURT REPORTS (2014] 14 S.C.R.

A 21. Having perused the above proceedings which are
part of the record of the trial Court, in particular the letter of
PW-123 dated 21.02.2002, we find that the custody of the
Appellant Nasir with the police on 21.02.2002 was in
connection with a different case, namely, case No.53 dated
·B 11.02.2002. Therefore, the judicial custody of the Appellant as ·
between 13.02.2002 and 27.02.2002 in connection with case
No.19, namely, the American Centre case was independent
of the custody of the Appellant with the police on 21.02.2002
when he was produced before the learned Metropolitan
c Magistrate, 14'h Court with the requisition to record his
confession. In fact in the said letter dated 21.02.2002, PW-
123 has requisitioned the learned Magistrate to provide judicial
custody even in case No.53 dated 12.02.2002. up till
07.03.2002, while simultaneously making a request for
o recording the confession of the Appellant Nasir. Further even
while considering the requisition made by PW-123 in the letter
dated 21.02.2002 for recording-the confession, the learned
Magistrate being aware of the statutory prescription contained
in Section 164 Cr.P.C. rightly decided not to record the
E confession but issue directions to keep Appellant Nasir in the
custody of the Superintendent, Presidency Correctional Home
Alipore and produced him on 22.02.2002 at 1 p.m. in order to
ensure that the Appellant was free from the influence of police.
Therefore, the Magistrate having thus ensured that the
F Appellant Nasir was taken into custody of the Court and was
entrusted with the Superintendent of the Presidency
Correctional Home till his production on the next day at 1 p.m.
It must be stated that by resorting to such a course, the
Magistrate ensured that there was no scope for any lacuna
G being created in the recording of the confession of the
Appellant. In the light of our above findings, we do not find any
force in the submissions of the learned counsel for the
Appellant on this score.
22. Ms. Nitya Rarllakrishnan further contended that PW-
H 97, the Judicial Magistrate who recorded the confession of
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 57
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
. .

Appellant Nasir did not follow the proper procedure as A
prescribed by law, In support of the said submission, learned
counsel took us through the cross-examination of PW-97
wherein PW-97 stated that he did not ask Appellant Nasir as
to when he was arrested, as to where he was kept before his
production in Court, as to whether he was kept in police custody B
after the remand, as to whether he was in the police custody
prior to the recording of the statement under Section 164, as
to whether the police behaved properly towards the accused,
that he did not ascertain from the Correctional Home authority
. about the order passed by him to ensure that the Appellant C
was segregated from other accused, as to whether the place
where the accused was kept was free from the influence of the
police, whether after his order prior to recording of the
confessional statement the accused was taken to a place of
segregation or was taken to jail directly and whether the D
accused was taken to Court prior to the recording of the
confessional statement with the other accused persons or
alone. Based on such answers elicited from PW-97, the
learned counsel for the Appellant arguad that the Magistrate
PW-97 who recorded the confession statement failed to follow E
the procedure as prescribed under Section 164. While
considering the said submission, it will also be appropriate to
refer to the question and answers 1 to 18 in the confessional
statement Exhibit-201 recorded by PW-97 and also that part
of the deposition in chief examination which is relevant on this F
aspect which read~ as under:
"In connection with the same case (GR.190 of2002) the
record was sent to me enter (?) on 21.2.2002 for
recording confessional statement of Md: Jamiludin Nasir.
The accused Md. Jamiludin Nasir was produced before G
me and identified by Constable No. 724 Swapan Kumar
Sanyal. After production I asked the constable to leave
my chamber and I also asked Md. Jamiludin Nasir to sit
on chair for recording his statement under Section 164
Cr.P.C. He was given necessary caution and even after H
58 SUPREME COURT REPORTS [2014] 14 S.C.R.

A . giving caution that he will not be sent back to the police
even if he declines to make confessional statement but
he was very much inclined to make confessional
statement. After having talk with the accused and giving
necessary pre-caution once again as per provisions of
B Section 164(2) Cr.P.C. regarding each of the contention
of instant section, he submitted before me that he will
make confessional statement before me. I thought that
time should be given for his reflection of mind before
making any statement before me though he volunteer
C himself for making confessional statement. I thereafter
asked the Superintendent, Presidency Correctional
Home, Alipore to keep the accused in complete
segregation from other undertrial prisoners or any
stranger or from any unwanted element for his reflection
o of mind and produce this accused person before me on
22nd February, 2002 at 1 p.m. I, thereafter sent the
accused Jamiludin Nasir for reflection. On the second
day accused Md. Jamiludin Nasir was produced before
me and identifjed by Constable No.4390 Tapanendu Pali
E and Constable No.6062 Sujit Kumar Saha for recording
confessional statement under Section 164 Cr.P.C. These
constables were asked to leave the chamber and I asked
the accused person to sit on chair. When he was being
asked as to wherefrom he was coming, he replied tome
F that he came from jail and inclined to make confessional
statement. He was given necessary caution once again
as laid down in Section 164 Cr.P.C: but he still wanted to
make statement. He was kept in segregation in J.C. but
he was inclined to make confessional statement after
G having talk with him. I explained once again each matter
containing in Section 164 Cr.P.C. sub-clause (2) and I
properly confined him that he oughtto have reflex carefully
before making such a statement. He was given a 10
minutes gap for his reflection of mind.Afterpause of 10
minutes he was given caution again but still he was
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 59
. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

inclined to make confessional statement inspite of A
statutory warning.As such, I recorded his confessional
statement following all the procedures as far as possible.
The statement was in 23 pages and it was kept in sealed
cover. I, thereafter forwarded the same before the Ld.
C.M.M. for perusal. TheaccusedwassentbacktoJ.C." B
23. When we read this part of the deposition of PW-97 .
along with the answers to questions 1 to 18 in Exhibit-201, we
find t_hat PW-97 had ensured prior to the recording of the
confessional statement as to the mindset of Appellant Nasir,
his readiness to make the confessional statement without any C
hindrance and uninfluenced by any other force including police
authorities and only thereafter, proceeded to record the
state.men!. Having seen the above part of the deposition of
PW-97 and the answers to questions 1 to 18 in Exhibit-201,
the confessional statement of Nasir, we are convinced that the D
Magistrate had exhaustively dealt with. the statutory prescription
under Section 164 Cr.P.C. and there is absolutely no flaw in
the recording of the said statement. Therefore, the said
contention of the learned counsel also does not merit any
consideration. E
: 24. Having held that the confession statement ofAppellant
Nasir made under Section 164 was free from any technical
flaw in its recording, as well as the procedures contemplated
under the said provision, we now proceed to examine the
truthfulness of its contents. F
. 25. When we consider the various facts narrated by
Appellant Nasir which are found in his answer to question No.19
which runs to as many as 16 pages since the confession of
Appellant Nasir who is one of the main accused in the case on
hand has been relied upon by the trial Court, as well as the G
High Court to a great extent, we wish to examine the same
thre\ldbare before expressing our views on such reliance
placed· upon by the Courts below. When we read the
confession, we find that it contains very many details pertaining
H
60 SUPREME COURT REPORTS [2014) 14 S.C.R.

A to himself, his family members, his earlier contact with
deceased Asif and his subsequent contact with Asif in the year
1999 and thereafter how through Asif he became part of the
group of other accused persons and at various stages he came
in contact with different accused at different places and as to
B how ultimately the conspiracy was hatched for making the attack
at the American Centre and as to how it was finally executed
successfully. It also explains as to how subsequently he came
to be apprehended by the police and thereafter,.his repentance
for whatever had happened to which he was .also a party which
c pricked his conscience and ultimately made him to volunteer
himself and make the statement on his own uninfluenced by
any other external force as he felt that he committed a great
sin by being part of the occurrence against his own homeland.
In fact we feel that we should make reference to the above
o factors noted by us in his confession before dealing with the
submission of learned counsel Ms. Nitya Ramakrishnan as to
the various deficiencies in the confession as compared to other
evidence which according to learned counsel should dissuade
us from relying upon the said confession statement.
E 26. As stated by us in the confession, he described as to
how he was living with his parents and his other brothers and
sisters in a rented house at 30/18/1A Rai Charan Ghose Lane,
Calcutta-39 and where his parents continued to live. According
to him, Asif who was also living in Calcutta was his classmate
F at Beniapukur High Madarasaand that they were good friends
in school days. He also mentioned that Asif after his schooling
became a member of a Students Islamic Organisation and
that he wanted Nasir also to join, which he was not inclined.
According to Nasir, he not only knew Asif but also all his family
G members. He made a reference to Asif's visit to Kashmir in
1991 where he became a 'Jehadi' and that he wanted Nasir
to be by his side. Nasir would state that earlier he was working
in some companies to earn his livelihood, that in 1994 he came
to know that Asif was arrested by Delhi Police under the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 61
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

provisions of TADA and that in 1999 he fled from Tihar Jail A
. and landed at Calcutta. According to Nasir in 1999, he met
Asif again when Asif wanted Nasir to arrange for a passport
for him as he wanted to go abroad stating that since he has
become a jailbird and everybody is looking at him with some
sort of suspicion, he therefore, wanted to go and .earn his B
livelihood in some foreign country. Nasir, thereafter stated to
have fook Asif to his native town and introduced him to Aki I
who is a tout in the passport office, Patna for getting a fake
passport for Asif which deal was stated to have been struck
after meeting him. He would then say that during Mohram C
festival, when he metAkil he informed that his friend Asif did
not get a passport for him but got a passport for one of his
friends in a fake name 'Farhan Mullick' who is none other than
Aftab. Later when Nasir metAsif and asked him as to why he
got a passport for another person, Asif informed him that that D
person is his close friend Aftab Ansari who lives in Banaras,
as he offered him a job and that the said friend was in a hurry
to get a passport, he got him a passport. Nasir further informed
that thereafter, Asif offered a salary of Rs.2000/- to him stating
that he is going to start a business of construction of buildings. E
He would however, say that no such construction activity was
carried on by Asif. ·
27. In January 2001, Nasir got his first month's salary
and thereafter, Asif wanted Nasir to find a space for one of his
friends by name Niaz Hussain (absconding accused) for F
starting a leather import export business. The said Niaz
Hussain was also introduced to N<Jsir. Appellant Nasir stated
to have arranged the ground floor Flat of No.1, Tiljala Lane for
Niaz Hussain which deal was finalized for a total consideration
of Rs.2,66,000/- in April, 2001 through PW-47 Dilip Kumar · G
Singh. According to him after taking possession of No.1 Tiljala
Lane by making some alteration, a garage was set up in the
said flat where Niaz brought a blue Maruti 800 bearing
registration No.BRK 4907 and thereafter, Niaz and his brother
H
62 SUPREME COURT REPORTS [2014] 14 S.C.R.

A Fiaz used to visit the place. Around April-May 2001 when Nasir,
Asif, Niaz and his brother Fiaz were at No.1, Tiljala Lane, Asif
suggested the idea of indulging in kidnapping of big
·• businessmen in various cities in order to make more money
and thatAftab would lead them all meaning thereby thatAftab
B would tell them where, how and what to do. Asif asked Nasir to
look after his gang members and collect q:1sh from wherever
he wanted him to get it promising that he would continue to
pay his monthly salary of Rs.2000/-. Asif also stated to have
said that for kidnapping purposes they would require arms and
c ammunitions and vehicles which should be gathered. In May
2001, Nasir stated to have gone to Agra as per the instructions
of Asif, where he was received by one Arsad Khan @Aslam
(herein after referred to as 'Arsad') who was also a member
of the gang of Asif. Arsad stated to have handed over Rs.1
o lakh cash to Nasir which he brought back and handed over to
Asif.
28. In August, 2001 Asif stated to have taken Nasir to a
Cyber Cafe and opened an e-mail account and taught him
how to check and receive e-mails. The e-mail account opened
E for Nasir was 'basketball4my@hotmail.com' and the password
was '7days13harj.' The second e-mail address was
'z4zipzap@hotmail.com' and the password was
'1 OOdinsonarka'. Both the e-mails were in Nasir's name. Asif
instructed Nasir to keep checking the e-mails. Subsequently,
F in August 2001 based on an e-mail message of Asif, he went
to Banaras where he introduced him to his friendAftabAnsari
and said that he can .be called as 'Bhaisaheb'. Aftab stated to
have paid Rs.5000 along with a black suitcase with wheels
and asked Nasir to keep in touch with him through e-mail. In
G the first week of September, 2001 as directed by Asif, Nasir
fixed a rented flat at Khan Road, Khirgaon, Hazaribagh. He
was assisted by Hassan Imam and another man by name
Sarwar. The name of the landlord was Majid Khan and the rent
was fixed for Rs.1500 per month. The tenancy was for a period
H
MD: JAMILUDIN NASIR v. STATE OF WEST BENGAL 63
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

of 11 months. Nasir stated to have informed the landlord and A
his children that the premise was booked for running a business
in Chappals, while in reality it was a hide out of Asif's gang
members. Zahid was also one of the gang members who
stayed in that place.
29. In October-November 2001, Aftab started sending B
e-mails to Nasir and his e-mails used to be in the name of
'Karan'. and sometimes in the name of 'Aman', 'Abdul', etc. In
October, 2001 Nasir went to Agra for a second time at the
instructions of Asif where he was again received by Arshad
and introduced to Zahid, Salim and Sadakat. Nasir was also C
informed that Zahid and Salim were Pakistan N~tionals while
Sadakat was from Uttar Pradish. Nasir was directed to take
them to Hazaribagh premises and lodge them there. The next
day morning they all left Agra and went to Hazaribagh in the
Maruti 800 and a Maruti Zen. Again he received an e-mail from D
Bhaisahab (Aftab) saying Asif had been nabbed by the police
which was received by him in the first week of November. In
the last week of November 2001, Bhaisahab again e-mailed
Nasir and asked him to go to Jaipur. When Nasirwentto Jaipur
he met Hassan Imam and they stayed inUday Palace Hotel. E
As per the instructions of Bhaisahab they met one Dilip Bhai
at Jaipur and by exctwiging two separate Rs.10 notes, they
received Rs.2'1akh from him. Ba~ed on further instructions of
Bhaisahab they proceeded to Jaisalmerwhere they purchased
a Jeep of 1988 make for Rs.80000/- from where they were F
asked to go to Barmer to fetch 15 kg of Atta, which means
'RDX'. However, the subsequent e-mail sent by Aftab they were
told that the party cancelled the consignment and they can return
back to Jaipur. Nasir returned back to Calcutta, while Hassan
Imam went back to his home. This stated to have happened in G
the first week of December, 2001.
30. After Nasir returned to Calcutta, Aftab informed him
through e-mail that Asif was shot dead in an encounter by the
Gujarat Police and his dead body was being flown to Calcutta.
H
64 SUPREME COURT REPORTS [2014] 14 S.C.R.

A According to Nasir, the said information was a shocking news
to him. Nasir confirmed that he used to receive mails through
'b4bapu@hotmail.com' and 'behzad50@hotmail.com' as well
as 'z4zipzap@hotmail.com'. In December; 2001 he went to
Khan Road, Khirgaon, Hazaribagh where Zahid, Sadakat,
B Salim and Hassan Imam were present. They set down together
for a meeting. Zahid and Sadakat said that police had killed
Asif and they should avenge it and they should not spare the
Calcutta police either. In the meeting it was deliberated that
they should blow off Government buildings and carry out killing
c of Policemen and show them the consequence of taking on
the Jehadis. They also stated that the Calcutta police were
never before faced with an encounter by Jehadis and that they
should teach them a lesson. In the meeting it was decided that
they would wait for the instructions of Bhaisahab and that
D wherever he asked them to attack they should attack. Zahid
and Sadakat who were in a fit of anger shown twoAK-47rifles
· and huge collection of cartridge and said that they Were fully
ready and only awaiting Bhaisahab's order. According to Nasir,
all of them were using the cyber cafe in Hazaribagh for
.E communication. Zahid and Sadakat, who had been to Jodhpur
_returned back to Calcutta on 14'h and 16" January, 2002
respectively who were received by Nasir at the station. They
brought large leather bags along ~ them .and as per the
instructions.of Bhaisahab through e-mail, Nasir lodged both
F of them at Niaz Hussain's flat at No.1, Tiljala Lane and that
Nasir was taking care of them.
31. On 18.01.2002, Hassan Imam stated to have visited
Nasir's flat with a black Motorcycle bearing Registration
No.WB-01-P2144 which he left at Hazaribagh. On that day
G Abdullah also came to his flat and stayed with him. They were
waiting for the message from Bhaisahab. Thereafter, Zahid
told them that Bhaisahab sent a message as per which they
should launch an attack on the Central Investigation Department
Bhawani Bhawan where Asif was kept for interrogation.
H According to Nasir, the said proposal was opposed by him
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 65
[FAKKIR MOHAfV:[:D IBRAHIM KALIFULLA, J.]

stating that such an attack would be unjust as chances. of A
innocent people becoming causalities and also the office of
Minority Commission was located there. Nasir's view point
was conveyed to Bhaisahab and Bhaisahab agreed to Nasir's
view point. He suggested a place of American base and where
there would be policemen as well as from where they could B
escape after carrying out the attack. On 19.01.2002, Nasir got
the motorcycle repaired at a cost of Rs.400/- and that around
4-4.30 p.m., Nasir along with Zahid, Sadakat, Abdullah went
out of Niaz's flat in a blue Maruti 800 (BRK 4907) and went to
the American Embassy where the police were checking the c
cars. From there they went to American Centre at Chowringhee
Road. After three or four rounds they saw that there was no
checking of cars at the American Centre and that policemen
sitting there appeared to be very slack in their duties.
Thereafter, Zahid stated to have decided that they should carry o
out their attack in that place.
32. On 20.01.2002, by way of rehearsal they all went to
American Centre in the Motorcycle, as well as in the Maruti
Car, that Zahid was d~iving the Motorcycle and Sadakat was
the pillion rider. The car was driven by Nasir and Abdullah was E
sitting along with him.Around 6.30 a.m., they noticed that lot of
policemen were present at the American Centre as shifting of
duties was taking place. He also referred to the manner in
which he drove the Maruti Car and stopped it while going at a
high speed opposite to a tea stall in front of Jeevan Deep F
building in which process a gentleman who was taking tea got
the tea spilled over his hand and that an altercation stated to
have taken place and that the issue was sorted out amicably.
Thereafter, they returned back to the flat at No.1, Tiljala Lane. It
is stated that Zahid fixed 6.30 a.m. on 21.01.2002 to be the G
time for attack but then he changed it and said they would carry
out the attack on 22.01.2002 at 6.30 a.m.
33. After the said decision they stated to have proceeded
to the American Centre in the Car, as well as the Motorcycle
H
66 SUPREME COURT REPORTS [2014] 14 S.C.R.

A and watched the shifting of duties by the police at the American
Centre.After taking tea in the same place, they returned back
to No. 1, Tiljala Lane. As they were not clear about the IOcation
of the American Centre building and the route to the said place
Nasir stated to have prepared a rough sketch map of the
B American Centre and the route to it. This was shown to Zahid
and he was convinced and could comprehended the route.
Thereafter, Nasir, Zah id, Sadakat and Abdullah set down and
decided as to who would do what during the attack. Zahid
stated to have mentioned that he would be driving the
C motorcycle along with a pistol and that Sadakat would be the
pillion rider carrying anAK-47 and that Sadakat would launch
the attack on American Centre. Zahid directed Nasir to drive
the .Maruti 800 by taking Abdullah along with him and park the
car by the side of the crossing of Rippon Street and Circular
o Road and wait for Zahid and Sadakat. After carrying out the
attack they would return to that place and Sadakat would move
into the car with the AK-47 rifle and Nasir should speed of
towards the flat at No.1, Tiljala Lane. Zahid then informed
Bhaisahab through e-mail about the date, time and place of
E attack, i.e. 22.01.2002 at 6.30 a.m. at American Centre and
Bhaisahab also confirmed the proposal. On 22.01.2002, Nasir
stated to have woken up at 5 a.m. and thereafter, he woke up
everybody else asking them to get ready,. that Zahid wore a
Chocolate colour Jacket and armed himself with a pistol and
F Sadakat wore a green colour Jacket with an AK-47 rifle from
a long pillow and placed it inside a cricket bat cover. As .
planned, Zahid drove the motorcycle along with Sadakatas
the pillion rider and Nasir drove the Maruti 800 along with
Abdullah. Nasir, as per the plan, stated to have parked the car
G at Rippon Street Circular Road Crossing and they got out of
the car and started facing the street. Around 6.45 a.m., Zahid
came speeding down in his motorcycle with Sadakat in the
pillion and pulled out beside the car. Immediately thereafter,
both said 'job done' (KAAM HO GAYA). Sadakat got down
H and got into the car with the AK-47 rifle with the cricket bat
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 67
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

cover and thereafter, they sped of towards No.1 Tiljala Lane A
and Zahid followed them.
34. On the way, Sadakat stated to have narrated in· detail
how the attack was carried out. After reaching the flat, _Sadakat
said it will not be right for him to stay at Calcutta as people had
seen him while he was launching the attack. While leaving B
Calcutta, Sadakat stated to have handed over the AK-47 to
Zahid and left along with Abdullah to the station and that
thereafter, Abdullah did not return. On 23.01.2002 Zahid also
stated to have left Calcutta having packed the AK-47 and his
own pistol in his bag who was seen of by Nasir in the Howrah C
station. After seeing of Zahid, Nasir went to his in-laws place.
On 26.01.2002, Nasir went to the flat at Khan Road, Khirgaon,
Hazaribagh where he met Zahid, Salim and Sadakat and they
celebrated their successful attack at the American Centre. He
-thereafter, returned back to Calcutta. On 29.01.2002, Nasir D
sent an e-mail to Bhaisahab informing him that Zahid and
Salim have been killed in an encounter by the police which
was widely published in the newspaper. On the night of
29.01.2002, he was arrested by the police at his in-laws' place
and thereafter, he took the police and showed the flat of Niaz E
Hussain, i.e. No.1 Tiljala Lane from where the police sei?:ed
the motorcycle and Maruti 800 which was used in the attack
and several other documents. He also took them to his flat at
No. 46 Tiljala Lane where the police seized some more
documents including his driving licence, passport, pocket F
notebook, sketch map oftheAmerican Centre and a National
Flag of Pakistan, which Zahid left with him while fleeing.
35. Nasir took the police to the cyber cafe at Kustia Road
and also showed the whole route to the police that had been
used before and after the attack. A revolver which was given G
to him by Zahid for his protection was also seized by the police.
At the end, Nasir stated that earlier he was scared of Aftab
and that now since he has also been nabbed, he did not want
to be a traitor against his country and therefore, came forward
H
68 SUPREME COURTREPORTS [2014] 14 S.C.R.

A with his statement.
36. Having noted the various facts in the confession of
Nasir, it must be stated that such a meticulous description of
men and material, date, time and events including the
passwords and e-mail addresses could have been revealed
B ·.only by a person who was really acquainted with those details.
It is very difficult for anyone to imagine these facts and put it in
a narrative form. In fact, whatever lacunae that could be pointed
out by Ms. Nitya Ramakrishnan was in our considered opinion
a very insignificant one which would not in any manner either
C discredit the statement or would goto the extent of saying that
the statement was designed andyrocured or tailor- made at
the instance of someone, much less the investigation team to
suit the case of the Prosecution. It must be remembered that
PW-97 who being a Judicial Magistrate, nothing could be
D stated that he was in any way either influenced or prejudiced
or in any manner persuaded to tow in line with the Prosecutibn
to record such a statement. There was not even a remote
suggestion to PW-97 that he was under the grip of the
Prosecution while recording the confession of Appellant Nasir.
E 37. Ms. Nitya Ramakrishnar;i_pointed out the following
non-corroborative factors to discredit the confessional
statement of Nasir. The non-corroborative factors, which were
pointed out by Ms. Nitya Ramakrishn<:in were:
·(a) The month and year when No.1 Tiljala Lane flat was
F booked and possession handed over to Niaz Hussain.
(b) The opening of the e-mail. account as per record and
as per the statement of Nasir.
(c)About the factum of who was riding the bike and who
was shooting on the date oroccurrence.
G
(d) At the site of conspiracy ~hat was the decision taken
as to shooting and riding : f:
:::1::;
(e) The time delay considering the distance from the site
of conspiracy to the place of occurrence as well as
H · the returning time.
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 69
[FAKKIR MOHJl,MED IBRAHIM KALIFULLA, J.]

(f) If Nasir's confession is to be believed, theAK-47 should A
have been recovered.
(g) The unexplained access to Nasir by police.
(h) Make the confession unreliable and the custodial
confession always to be treated with a pinch of
suspicion. B
38. When we deal with the above non-corroborative
factors referred to by learned counsel for the Appellant, the
first one related to the month and year of the handing over of
the flat at No.1, Tiljala Lane to Niaz Hussain. In the confession, C
Nasir stated that around April-May 2001, he along with Asif,
Niaz and his brother Fiaz were involved in a discussion at flat
No.1, Tiljala Lane, Calcutta-700031. The learned counsel
referred to the evidence of PW-47 Dilip Kumar Singh, who
was the promoter of the said building at No.1, Tiljala Lane,
0
which stated that the agreement was dated 11.07.2001, which
was signed in the presence of the owner of the building
witnessed by Nasir and Benod Kumar Roy and that on that
day itself he handed over possession to Niaz Hussain based
on the agreement. The learned counsel, therefore, contended
that there is a vast difference in taking over possession of the E
flat as between what was stated by Nasir and the flat promoter
PW-47.
39. When we consider the said contention we can only
say that PW-47 had the agreement in his harid which was dated F
11.07.2001 while Nasir who was making his confessional
statement was not referring to any specific document. While
according to Nasir it was April-May 2001 as per the document,
it is found to be 11'h July 2001. There is no difference in the
year concerned, namely, 2001. In fact, Nasir himself was not
sure as to whether it was April or May. Therefore, he said April- G
May, 2001. As between April-May, 2001 and July 2001 it must
be stated that the same cannot be held to be such a serious
discrepancy in order to state that on that score the confession
which he was able to narrate with high amount of cogency which
H
70" SUPREME COURT REPORTS [2014] 14 S.C.R.

A explains the sequence of events as from the early childhood
of the Appellant till he realised his folly in 2002 when he came
forward to make the confession should be rejected. We
therefore, reject the said submission as the same does not
seriously impinge upon the confession made by the Appellant.
.B . 40. The next submission of the learned counsel forthe
Appellant related to the fact about as to who was riding the
bike and who was shooting at the occurrence as to whether it
was Zahid or Sadakat. In the confession, we find, according
to Nasir, Zahid made a statement that he would drive the
C motorcycle with a pistol and that Sadakat would be the pillion
rider with AK-47 rifle in his hand who would attack the people
at the American Centre. Again while narrating the events
starting from the early morning of 22.02.2002, Nasir stated
that Zahid wore a chocolate colour jacket arming himself with
D a pistol and Sadakat wore a green colour jacket and drove
out with an AK-47 rifle and placed it in the cricket bat cover.
He also stated that Zahid drew the motor bike while Sadakat
was the pillion rider with theAK-47. It must be stated that since
the above statement of facts have come from the horse's mouth
E who was fully involved in the conspiracy as well as the ultimate
· execution along with the other conspirators and the executants,
his word must carry weight. We say so because when once
the confession made by Nasir is free from any flaw either
technical or factual and as stated earlier he was part of the
F perpetrators of the crime, his word should carry weight in so
far as the execution of the crime is concerned.
41. Nasir having participated in the crime right from its
initiation till its execution and was taking care of the whole gang
besides his own participation, it should be held that the facts
G stated by him as regards the crime part ofit must carry due
weightage and must be accepted. Therefore, when Nasir
stated that as decided by Zahid on the previous day, i.e. on
21.01.2002 he would drive the bike along with the pistol and
Sadakat would carry out the shooting with AK-4 7 as a pillion
H
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 71
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

rider and when the same was stated to have been carried out A
meticulously on 22nd January, 2002 making further description
about the colour of the jackets worn by Zahid and Sadakat
and that as planned Zahid, drove the vehicle carrying a pistol
and Sadakat was the pillion rider with the AK-47, the said
statement of Nasir must be accepted without any hesitation. B
42. While, thus accepting the said position as stated by·
Nasir in his confession, the non-corroborative factors pointed
out was the version of PW-62 and PW-113 and some variation
in the version of eye-Witnesses, namely, PWs-6, 9, 15, 16,
18, 19 and 20. It is necessary, however, to refer to those C
Witnesses before answering the submission of the learned
counsel for the Appellant. The learned counsel drew our
attention to the deposition of Witnesses, namely, PW-6, PW-
9, PW-15, PW-16, PW-18, PW-19, PW-20, PW-62 and PW-
113. Learned counsel for the Appellant by referring to the D
version of the above Prosecution Witnesses as compared to
the confession made by Nasir submitted that while according
to Nasir, Zahid was riding the bike wearing a chocolate colour
jacket and Sadakat was the shooter wearing the green colour
jacket, which was also the version of PW-62 who happened to E
see the person wearing chocolate colour jacket driving the
motor bike and person with green colour jacket as pillion rider
carrying a cricket bat cover. PWs-6, 9, 15, 16, 18, 19, and 20
who are all claimed to be eye-Witnesses to the shooing
incident stated that the person who was shooting with the AK- F
47 was wearing a chocolate or brown colour jacketand the
rider of the bike was wearing a green colour jacket. She also
pointed out to us that all the above Witnesses identified
Exhibit-XXVI, the photograph of Zahid taken after his death.
Learned counsel further referred to evidence of PW-113 who G
was part of the team which carried out the encounter at
Hazaribagh stated that Zahid while being taken to the hospital
in a serious condition, made a dying declaration that he was
the person who shot at the police personnel at the American
H
72 SUPREME COURT REPORTS [2014] 14 S.C.R.

A Centre while Sadakat was the driver. By pointing out the above
evidence of different Witnesses, learned counsel submitted
that here again there is a pointed variation as between the
version of the Prosecution Witnesses and that of the confession
of Nasir.
B 43. The contention, therefore, was that the said variation
would create serious lacuna in the evidence of the Prosecution
inasmuch as there was no definite evidence as to who was
the shooter and who was the rider. It was therefore, contended
that the said factor is another vital non-corroborative factor
C which would seriously impinge the confession. When we
consider the said submission, we have to point out that PWs-
6, 9, 15, 16, 18, 19 and 20 were all eye-witnesses to the
shooting occurrence. Many of them were injured eye-
witnesses. The evidence of PW-6 discloses that the shooting
D by the person with AK-47 was taking place within a distance
of 10-15 feet only. The time of occurrence was 6.35 a.m. All
the eye-witnesses also stated that the shooter was wearing
Chocolate or Brown colourjacket and the rider was wearing a
Green colour jacket. Therefore, it is relevant to keep in mind
E that as per the eye-witnesses' version the person who was
shooting was wearing chocolate/brown colour jacket and the
person who was driving was wearing green colour jacket.
44. When we consider the above evidence, we find that
according to PW-113, Zahid made.a declaration, while he was
F sinking, that he did the shooting operation and Sadakat was
the rider.As far as PW-113's evidence is concerned, the same
cannot be relied upon for the simple reason that what was
stated to him by Zahid cannot be taken as a dying declaration.
In order to be a valid dying declaration as specified under
G Section 32, primarily such statement of a dead person would
be relevant to the cause of his death or any of the
circumstances of the transactions which resulted in his death
and that too in cases in which the cause of his death comes
into question. That apart, it is by now well settled that for a
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 73
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

statement to be accepted as a dying declaration, it should have A
passed the rigorous tests laid down in various judicial
pronouncements as such a statement would be a self-inflicting
one. More so, when it is claimed to be a oral declaration not
supported by any other evidence, be it oral or documentary,
therefore, based on the ipsi dixit of PW-113 referring to Zahid's B
declaration, it cannot be accepted as a valid piece of evidence.
Therefore, the said part of the evidence of PW-113 relating to
the so-called dying declaration of Zahid will have to be
eschewed from consideration. When we say so, we are
cautious of the fact that the Hazaribagh encounter gave a vital c
clue to the Investigating Team dealing with the American Centre
case, which in our considered opinion will not be in any way
hindered by eschewing from the considering the dying
declaration aspect of PW-113's evidence. If the so-called dying
declaration of Zahid is eschewed from consideration, what is D
left is the evidence of the eye-witnesses, i.e. PWs-6, 9, 15,
16, 18, 19, 20, 62 and the confessional statement of Nasir.
The eye-witnesses account merits acceptance as they had
the full view of the assailants . In fact, according to some of
them, both were shooting, some of them identified the photo E
of Zahid as the person who was riding the bike and shooting.
Going by the version of Nasir, Zahid was riding and Sadakat
was the pillion rider. We only point out that there was no non-
corroborative factor as was sought to be demonstrated on
behalf of the Appellant in order to state that the whole evidence F
of the eye-witnesses should be rejected and that on that ground,
the confession cannot also be relied upon. We will have to
bear in mind that the confession has unfurled the whole of the
story of the Prosecution, while this part of the evidence is
confined to the act of shooting by one of the conspirators and G
that of riding a bike by anther conspirator. We are convinced
that the evide11ce on record in particular the eye-witness
account who had the benefit of looking at the person who was
shooting at the spot in the close vicinity and who are able to
note a glaring feature namely, the dress worn by the shooter H
74 SUPREME COURT REPORTS [2014] 14 S.C.R.

A and the driver and also identified the photograph of the driver
. when shown to them, there is no reason why their version should
not be believed for the purpose of identifying the assailant at
the place of occurrence. Therefore, a cumulative consideration
of our above discussion makes it clear that the confession of
B Nasir as it stands was not in any way contradicted by ar.y of
the Prosecution Witnesses, namely, PWs-6;9, 15, 16, 18, 19
and 20.
45. When we come to PW-62, according to whom. at
Rippon Street Circular Road Crossing when he was looking
C at Maruti car driven by Nasir with co-passenger, two persons
arrived in a motor cycle stating that their mission was
accomplished and that the person wearing green colour jacket
who was a pillion rider, got down from the bike carry[ng a cricket
bat cover, got into the car and thereafter, the car and the bike
D left the spot. Here again, we are not impressed by the
submission thatgoing by his version it should be held that there
was a serious contradiction as regards the shooter and the
rider which will lead to a conclusion of non-corroborative factor
to discard the confession. Firstly, PW-62 was not an eye-
E witness to the shooting occurrehce; secondly as between the
place of occurrence and Rippon Street Circular Road Crossing
what really transpired as between the rider and shooter was
not known to him. The significance of PW-62's evidenee would
mainly relate to the identification of Nasir who had parked the
F vehicle at the spot where PW-62 a.nd his friend were taking
tea and by virtue of the haphazard parking on the road, there
was a traffic jam which necessitated PW-62 to approac,h Nasir
and ask him to park the vehicle properly in order to clear the
way for smooth movement of vehicles. It was in that aspect the
- G version of PW-62 assumes more significance. It is true at that
point of time a little later he also witnessed the two persons
who arrived at the spot in a motor bike expressing their
successful achievement of their operation and one of them
who was the pillion rider got into the Maruti car after which
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 75
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.] .

both the vehicles left the spot. It can only be stated that even A
assuming for the sake of argument based on the PW-62's
version some contradiction as regards the jacket colour having
regard to the overwhelming evidence pointed out by us by
making reference to PWs-6, 9, 15, 16, 18, 19 and 20, evidence
of PW-62 should be ignored as a very insignificant one. B
Therefore, on this ground we are not convinced that any non-
corroborative factor can be attributed to dislodge the
confession.
46. Learned counsel for the Appellant also argued by
stating that there was time delay involved considering the site C
of conspiracy the place of occurrence and the returning time
to the site which was all improbable. As per the confession of
Nasir, they all left No. 1, Tiljala lane at 5.30 a.m. The occurrence
stated to have taken place at 6.30 a.m. at the American Centre.
The contention is that having regard to the location of the place D
of conspiracy and the site of occurrence, it is highly improbable
that the occurrence could have taken place at 6.30 a.m., when
the conspirators left the place of conspiracy at 5.30 a.m. We
do not find any substance in the said submission since with
reference to such time factor there should always be some E
time allowance given, in which event, the said factor cannot
be taken as a non-corroborative factor at all to reject the
confession made by Nasir.
. 4 7. One other submission made was that if the confession
of Nasir is to be believed, the AK-47 should have been F
recovered. We are at a loss to understand as to how the non-
recovery of AK-47 rifle would vitiate the confession. ln fact,
learned Additional Solicitor General in his submissions stated
thattheAK-47 rifles seized atthe hideout of the conspirators
at Hazaribagh along with the recovered bullet jackets at the G
occurrence spot, namely, the American Centre Were all sent to
Forensic Science Laboratory for an expert opinion and it turned
out that none of the bullets fired and recovered at the American
Centre matched with the gun recovered at Hazaribagh
H
76 SUPREME COURT REPORTS (2014] 14 S.C.R.

A premises. Learned Additional Solicitor General, therefore,
contended that the non-recovery of the AK-47 which was used
at the place of occurrence cannot be a factor to reject the
Prosecution case as framed against the accused. We find
force in this submission. In fact, as per the confession of Nasir,
B after the shooting operation and after they all retuned back to
No. 1, Tiljala Lane, both Sadakat and Zahid left Calcutta
carrying their baggages. Zahid lost his breath in the encounter
on 28-29.01.2002. Whatever arms and ammunition including
the AK-47 rifles at the premises at Hazaribagh was found to
.C be the weapons not used for shooting at the American Centre.
Sadakat was an absconder, though, later he was apprehended
and is now being tried. Therefore, any recovery made at the
instance of Sadakat, who is now facing the trial, is not known.
In such circumstances, the noncrecovery of the AK-4 7 which
o was used for shooting at the American Centre cannot be a
ground to disbelieve the statement contained in the confession
of Nasir.
48 . As far as the contention made on behalf of the
· Appellant that non-production of the weapon used in the attack
E is fatal to the case of the Prosecution is concerned, the reliance
placed upon by the learned Additional Solicitor General to the
decision reported in Ram Singh vs. State of Rajasthan -
(2012) 12 sec 339 would meet the said contention. In
paragraphs 8 and 10, this Court has also held that the non-
F production of tl1e weapon used in the attack is neither fatal to
the Prosecution case nor any adverse inference can be drawn
on that score. Therefore, the said submission is also rejected.
49. While referring to the non-corroborative factors the
learned counsel for the Appellant submitted that the unexplained
G access to Nasir by police when he was produced before the
Magistrate on 21.02.2002 for recording his confession read
along with the above factors makes the confession fully
unreliable. We have referred to the requisition made by PW-
123 and the order passed by the Magistrate, 14'" Court
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 77
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Calcutta on 21.02.2002 by which he issued directions to lodge A
the Appellant Nasir in th.e Calcutta Presidency Correction
Home on that day by segregating him from other accused and
strangers for being produced on 22.02.2002. to give enough
time for Appellant Nasir to rethink as to whether or not he should
make the confession. We have found that the Appellant was in B
the custody in connection with case No.53 dated 12.02.2002
for certain offences under the Arms Act while he was in judicial
custody up till 22.02.2002 and, therefore, those materials
disclose as to how Appellant Nasir happened to be in the
custody of the police on 21.02.2002. Inasmuch as the said c
situation has been explained by valid documents, the said
circumstance also does not in any way vitiate the confession
· made by Nasir. ·
50. Learned counsel then submitted that custodial
confession should always be treated with suspicion. Learned D
counsel referred to the decisions reported in Shivappa vs.
State of Karnataka - (1995) 2 SCC 76, Bhagwan Singh
and others vs. State of M.P. - (2003) 3 SCC 21 and Aloke
Nath Dutta and others vs. State· of West Bengal - (2007)
12 SCC 230 in support of her submissions. Learned counsel E
then referred to some !}f the answers made by Appellant Nasir
in the Section 313 questioning. Specific reference was made
to question Nos.562, 563, 564, 770, 771and772. For question
No.562, t~e answer was 'I do not know, I am innocent'. The
question was with reference to PW-97, namely, the Magistrate F
who recorded the confession of the Appellant, who stated that
he certified about the voluntariness of the statement and proved
the statement before the Court marked as Exhibit-201 and
what was tfie reaction of the Appellant. By saying that he was
innocent and he did not know anything, we do not find anything G
to be implied thatthe whole of the confession has to be rejected
based on the said answer. Question Ni;i.563 was again related
to PW-97. where,in .it was put to Appellant Nasir that learned
Chief Metropolitan Magistrate sent Nasir the case record of
H
78 SUPREME COURT REPORTS [2014] 14 S.C.R.

A GR190 of 2002 for recording the confessional statement of
Nasir and what he had to say. The answer was that 'on
21.02.2002, I was on police record, I was not sent to any
Magistrate for recording confessional statement', though, the
said answer contradicted the factum of the confessional
B statement recorded by PW-97. By merely accepting such a
denial of the factum of production of the Appellant for the
purpose of recording of confessional statement before PW-
97, it cannot be inferred that as between the version of PW-97
arid the stand of the Appellant Without anything more, the stand
c of the Appellant should be believed. In fact, for question No.564,
it was explained to the Appellant that PW-97 gave necessary
caution to him, assured him that if he declined to make any
statement he will not be sent to police custody and that
thereafter, PW-97 sent him for jail custody for refreshment of
a
D his mind with direction to the Superintendent, Presidency
Correction Home to keep him in complete segregation. Here
again the Appellant came forward with only an answer that it
was false and that he was innocent. We can understand ifthe
Appellant had stated that nothing transpired on 21st February,
E 2002 and 2?"d February, 2002 when the confession was
recorded tiy the Magistrate PW-97 .. On the other hand,
according to PW-97, the Appellant wrote the statement in his
own handwriting and proved the statement before the Court
which was marked as Exhibit-201. When that fact was put to
F the Appellant by way of question No.567, the Appellant pleaded
ignorance. Therefore, the Appellant's answers to those
·questions does not reflect the true state of affairs, therefore,
based on that it cannot held that the confession should l::le
disbelieved.
G 51. Similarly, for question No.770, it was specifically
stated that the Appellant Nasir gave a confessional statement
under Section 164 Cr.P.C. before the Metropolitan Magistrate,
· 14'h Court on 22. 02.2002 and what he had to say. A simple
answer was that it was false and that he was innocent. For
H

I . I,
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 79
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

question No. 771, where it was put toAppellarit that he gave a A
statement before the Magistrate, that he was put in segregation
in Presidency Correctional Home for reflection of memory and
the Magistrate gave sufficient warning as contemplated under
the Act. Before recording his statement the answer was;
" I was taken to Correctional Home on 22,02.2002 that B
he was innocent that at 7 p.m from a small (illegible) of
Hugly river coming office (illegible) bridge Sagar Setu."
52. The said answer does not in any way give any
acceptable ground for rejecting the confession made by the
Appellant. Again for question No.772, the Appellant answered C
that he did not give any statement. Except mere denial about
the confession made, we do not find any other positive evidence
on the side of Appellant to reject the confession. In fact, other
than the above answers there was nothing on record to show
that the Appellant retracted from his confession. Therefore, the D
confession made by the Appellant before PW-97 does not
suffer from any infirmity in law or facts. The purport of Section
313 questioning is to enable the accused to come forward
with the acceptable explanation while refuting the various
evidence alleged against him. Unfortunately, the Appellants E
failed to avail the opportunity to confront the facts support by
valid evidence.
53. As far as the reliance placed upon the decision of
this Court in Shivappa (Supra), paragraph 6 is relevant, which
reads as under: F
"6. From the plain language of Section 164 CrPC and
the rules and guidelines framed py the High Court
regarding the recording of confessional ~tatements of
an accused under Section 164 CrPC, it is manifest that G
the said provisions emphasise an inquiry by the
Magistrate to ascertain the voluntary nature of the
·confession. This inquiry appears to be the most
significant and an important part of the duty of the
Magistrate recording the confessional statement of an
H
80 SUPREME COURT REPORTS [2014] 14 S.C.R.

A • .accused under Section 164 CrPC. The failure of the
• '· , Magistrate to put such questions from which he could
ascertain the voluntary nature of the confession detracts
so materially from the ev,identiary value of the confession
of an accused that it would not be safe to act upon the
B same. Full and adequate compliance not merely in form
" ., but in essence with the provisions of Section 164 CrPC
ar)d the rules framed by the High Court is imperative and
its non-compliance goes to the root of the Magistrate's
, .~ jurisdiction ·~a record the confession and renders the
c confession unworthy of credence. 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
1
receiving in such custody in order to ensure that there is
0 · " no scope for doubt of any sort of extraneous influence
proceeding from a source interested in the Prosecution
'.. still lurking in the mind of an accused. In case the
' ' _Magistrate discovers'ori such enquiry.that there is ground
for such supposition he should give the accused sufficient
. .

E time for reflection before he is asked to make his
'statenient and should assure himself that during the time
" of reflection, he is completely out of police influence. An
accused should particularly be asked the reason why he
· ., wants to make a statem.ent which would surely go against
F his self-interest in course of the Trial, even ifhe contrives
subsequently to retract the confession. Besides
,.. administering the caution, warning specifically provided
N•L·· for in the first part of sub-section (2) of Section 164
" ;·r namely, that the accused is not bound to make a
• , statement and that if he makes one it may be used
G
against him as evidence in relation to his complicity in
'the offence atthe Trial, that is to follow, he should also, in
. plain lahguag"e, be assured of protection from any sort
''• ~of apprehended torture or pressure from such extraneous
·1•. agents as the police or the like in case he declines to
H '·
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 81
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

make a statement and be given the assurance that even A
if he declined to make the confession, he shall not be •
remanded to police custody."
54. When we apply the various principles set out in the
said paragraph to the case on hand, we find the Magistrate
PW-97 had elaborately applied all the principles laid down B
therein before recording the confession. Therefore, the said
decision fully supports the action of the Magistrate PW-97 in
having recorded the confessional statement in accordance
with law.
55. Reliance was then placed upon the decision in C
Bhagwan Singh (supra). Paragraph 30 was referred to which
reads as under:
"30. It has been held that there was custody of the
accused Pooran Singh with the police immediately
preceding the making of the confession and it is sufficient D'
to stamp the confession as involuntary and hence
unreliable. A judicial confession not given voluntarily is
unreliable, more so when such a confession is retracted.
It is not safe to rely on such judicial confession or even
treat it as a corroborative piece of evidence in the case. E
When a judicial confession is found to be not voluntary
and more so when it is retracted, in the absence of other
reliable evidence, the conviction cannot be based on such
retracted judicial confession. (See Shankaria v. State of
Rajasthan, SCC para 23)" F
56. In the first place in the case ori hand, the confession
. was recorded after the Appellant was directed to be kept in
the Presidency Correctional Home under the custody of its
Superintendent and, therefore, he was not in the police custody.
G,
Thereafter, the Appellant never retracted from the confession
made before PW-97 except his incoherent answers to some
of the questions relating to the confession in the Section 313
questioning. We, therefore, do not find any scope to apply the
said decision to the facts of this case.
H
82 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 57. Reliance was then placed upon the decision in Aloke
Nath Dutta (supra). In paragraphs 104 to 107, this Court has
explained as to how the Court must be extremely cautious in
dealing with confession made under Section 164 especially
such confession is retracted, which read as under:
B "104. Section 164, however, makes the confession before
a Magistrate admissible in evidence. The manner in
which such confession is to be recorded by the
Magistrate is provided under Section 164 of the Code
of Criminal Procedure. The said provision, inter alia,
C seeks to protect an accused from making a confession,
· which may include a confession before a Magistrate, still
as may be under influence, threat or promise from a ·
person in authority. It takes into its embrace the right of
an accused flowing from Article 20(3) of the Constitution
D of India as also Article 21 thereof.Although, Section 164
provides for safeguards, the same cannot be said to be
exhaustive in nature. The Magistrate putting the questions
. to an accus.ed brought before him from police custody,
should sometime, in our opinion, be more intrusive than.
E what is required in law. (See Babubhai Udesinh Parmar
v. State of Gujarat.)
105. In a case where confession is.made in the presence
of a Magistrate conforming the requirement$ of Section
164, if it is. retracted at a later stage, the Court in our
F opinion, should probe deeper into the matter. Despite
procedural safeguards contained in the said provision,
in our opinion, the learned Magistrate should satisfy
himself whether the confession was of voluntary nature.
It has to be appreciated that there can be times where
G despite such procedural safeguards, confessions are
made for unknown reasons and il'l fact made out of fear
of police.
· 106. Judicial confession must be recorded in strict
compliance with the provisions of Section 164 of the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 8.3
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Code of Criminal Procedure. While doing so, the Court A
shall not go by the black letter of law as contained in the
aforementioned provision; but must make further probe
so as to satisfy itself that the confession is truly voluntary
and had not been by reason of any inducement, threat or
torture. B
107. The fact that the accused was produced from the
police custody is accepted. But it was considered in a
routine manner. The learned Magistrate in his evidence
could not even state as to whether the Appellant had any
injury on his person or whether there had been any tainted C
marks therefore.
58. Having referred to the above paragraphs, we find
that none of the instances and principles referred to therein
when applied to the facts of the present case persuade us to
hold that the confession made by the Appellant cannot be relied D
upon.
59. Learned counsel for the Appellant in her submissions,
argued about the truthfulness in respect of the statements
contained in the confession as compared to the other evidence
of the Prosecution. Learned counsel prefaced her submission E
by saying that the confession will have to be seen as to whether
· it was to buttress the various contradictions in the evidence of
the Prosecution. The learned counsel referred to the fact about
the contradiction as regards the handing over of the flat at No.1,
Tiljala Lane, which according to PW-47 was on 11.7.2001, · F
while in the confession it was stated to be in April-May, 2001.
Reference was then made to the fact about whether Zahid was
the shooter or the pillion rider. As far as the above two factors
are concerned, we have already dealt with the same in detail
and found that there was no material contradiction over the G ·
same. Learned counsel then pointed out that in the confession, .
Appellant Nasir alleged to have stated that after getting out of
No. 1, Tiljala Lane flat he advanced towards the Rippon Street
Circular Road crossing, where he parked the car and his co-
H
84 SUPREME COURT REPORTS [2014) 14 S.C.R.

I
A passenger Abdullah as well as himself got out of the car and
were facing the street. As compared to the said statement,
learned counsel referred to the.evidence of PW-62 who was
examined to establish that on 22.01.2002Appellant Nasir along
with another person were found at that spot. The learned
B counsel pointed out that according to PW-62 on 22.1.2002 at
about 6.2016.30 a.m., he was in. Beniapukur lane after crossing
of AJC Bose road in the shop of bneAshok Nandi to purchase
milk where he met his friend Gilbert Gomes. He further stated
in front .of the shop of Nandi he noticed the Maruti 800 blue
c colour car parked in a wrong trajectory and that a lorry which
came from Beniapukur side could not pass the road due to
. such wrong parking by the driver of Maruti car. He further stated
that in order to clear the traffic jam he and his friend approached
the Maruti 'car driver who though initially did not respond
o properly, when they noted the registration number of the car,
the driver set right the parking of the car which ultimately cleared
the traffic jam. He also stated that the registration number of
the Maruti car was BRK 4907. However, in the course of the
cross examination he stated that Rippon Street Circular Road
E Crossing is almost in the opposite of Beniapukur Lane and
AJC Bose road towards right arid that there are footpath in
Rippon Street Circular Road Crossing on both sides. Learned
counsel contended that according to Appellant Nasir he
parked the car at Rippon Street Circular Road Crossing and
F he and Abdullah got out of the car facing the street. According·
to PW-62 the car was parked in Beniapukur Lane which is a
1
material contradiction.
60. On a consideration of the above facts stated by
Appellant Nasir in his confession and PW-62 as regards the
G location where the car was parked on 22.01.2002 in the early
morning, we find that in the cross examination it was elicited
from PW-62 to the effect that Rippon Street Circular Road
Crossing, Beniapukur Lane and AJC Bose Road were all
situated adjacent to each other and therefore, we do not find
H any material contradiction on the said aspect.
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 85
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

61. It was submitted that in the light of the said A
contradiction, it will have to be inferred that PW-62 could not
have identified the Appellant and the co-passenger who was
in the car and therefore, the reliance placed upon PW-62's
memory was not strong enough to support the circumstance:
62. On this aspect reliance was placed upon State (NCT B
of Delhi) vs. Navjot Sandhu@ Afsan Guru - (2005) 11
SCC 600. As far as the decision in Navjot Sandhu@Afsan
Guru (supra) is concerned, our attention was drawn to
paragraphs 304, 306, 315 and 320. In paragraph 304 this Court
after adverting to certain deficiencies in the recording of the C
confession this Court declined to rely upon it. Thereafter, in
paragraph 306 excluding the confession from consideration
this Court proceeded to examine the circumstantial evidence
against the accused and assess whether he joined the
conspiracy. After discussing the various circumstances, this D
Court also referred to the reliance placed upon the evidence
of a witness who was examined as PW-45 in the case to
implicate the accused in the factum of conspiracy and found
that there were no clinching circumstance so as to reach a
conclusion unaffected by reasonable doubt that the particular E
accused was a party to the conspiracy along with his cousin,
the prime accused. In the case on hand we have held that
there was no deficiency much less any serious ohe in accepting
the confession recorded by the Magistrate under Section 164
as we have found that the Magistrate was examined as PW- F
97 observed all the ingredients required in law in particular
Section 164 Cr.P.C. As the facts involved in Navjot Sandhu
(supra) are not comparable to the one in the case on hand, we
cannot apply the reasoning stated in that case to the facts of
this case. In the light of our above finding on the confession of G
Appellant Nasir, we find that the reliance placed upon Navjot
Sandhu @ Afsan Guru (supra) is of no assistance to the
Appellant.
63. Having dealt with the issue relating to confession and
before examining the other corroborative materials in the form H
86 SUPREME COURT REPORTS [2014) 14 S.C.R.

A of evidence, both oral and documentary, placed in support of
the Prosecution, we wish to note the submissions of learned
counsel in relation to the appeal filed by Aftab in Criminal
Appeal Nos.1242-43 of 2010. Ms. Nitya Ramakrishnan
submitted thatAftab was arrested on 22.03.2002 and that his
B conviction was mainly based on the confession of Appellant
Nasir. After referring to the same the learned counsel submitted
that the confession of the co-accused cannot be relied upon
as the same is not substantive evidence under Section 30 of
the Evidence Act, 1872 (hereinafter referred to a 'Evidence
C Act').
64. Learned counsel contended that the evidence of PW-
123, Investigation Officer, relating to the recovery of a letter
and notebook marked as Exhibit-46/1 cannot be taken as a
recovery made at the instance of Aftab and, therefore, no
D reliance can be placed upon the said document. According to
·the learned counsel, the said document can only be stated to
have been taken on record by way of a seizure and not by way
of recovery at the instance of AppellantAftab. When we refer
·to the said part of the evidence of PW-123, we find that after
E takingAppellantAftab into judicial custody, PW-123 recorded
his statement and pursuant to his statement conducted a search
of the house of deceased Asif at No.380, Mofidul Islam Lane
with the help of the local police and based on the admissible
part of the said statement seized one notebook and one letter
'
F written in Hindi from a small .almirah kept inside the room of
Asifin the presence of Witnesses. The seizure list prepared
was marked as Exhibit-44 and the signature of AppellantAftab
was also marked which form part of the record. That apart
there is also the evidence of PW-105, handwriting expert, who
G after examining the letter Exhibit-46/1 opined that the
handwriting found in the letter and some of the writing in the
diary are in the handwriting of the Appellant. Apart from PW-
123, the seizure witness PW-63 and PW-119 were also
examined. Asif's brother PW-39 was also examined on the
H side of the.Prosecution.
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 87
[FAKKIR MOHAMED IBRAHIM KAUFULLA, J.]

65. Evidence of PW-105, the handwriting expert, has A
· · opined that the writings found in Exhibit-46/1 and the specimen
handwritings of Aftab produced before him were similar. That
part.of the evidence of PW-105 is as under:
"Manner of writing Hindi writings '.Aftaab', 'Ahmed';
'Ansari', with the formation of 'Awe' in Aftaab and 'Awe' B
in Ahemed and Ansari, formation of 'Haw', 'maw', 'Daw'
( 1Slh letter in the alphabet), manner of putting the matra
of 'eekar' in 'Ansari' are found similar in 03·7 and S57,
S58 and S62.
In short, all the significant characteristics as observed C
in the questioned writings are found similarly exemplified
at one place or the other in the standard writings and
they are within the limits of natural variations. The
· cumulative consideration of all the writing habits leads
me to the irresistible opinion of common authorship." D
66. Learned counsel for the Appellant also brought to
our notice the evidence of PW-39 Ali Reza Khan who is the .
younger brother of the deceased Asif. In his evidence PW-39
identified Appellant Nasir in the Court. While referring to his
brother Asif, he stated that after his schooling, Asif did his E
.graduation from Maulana Azad College, thereafter went to
Aligarh Muslim University (hereinafter 'AMU') for studying a
course in journalism and that he was also member of Student
Islamic Organisation. He further stated that when Asif was
studying in AMU sometime in 1993-94 he was arrested in F
TADA case. When he referred to one of Asif's friend Abdullah
who came to visit Asif in Calcutta along with some others, one
of whom was Dr. Mushtaq Ahmed a Kashmiri, he stayed in
their house for two days and that thereafter, when he met Asif
after his arrest in TADA case he found Dr. Mushtaq Ahmad G
was also a co-accused before the Tees Hazari Court. He further
stated that Asif once introduced PW-39 to another gentleman
who was also arrested and whose name was Aftab Ansari.
PW-39. thereafter identified Appellant Aftab in the Court. In
H
;,
88 SUPREME COURT REPORTS [2014] 14 S.C.R.

A . the. latter part of his evidence he stated that Asif was released
in the year 1999 when he came back to Calcutta and was
residing with them and after 1999 when Abdullah came to their
residence to meet Asif, his mother was annoyed and asked
him to leave the house forthwith and also threatened him with
B a broomstick and thereafter, none of Asif's friends visited their
house. He also referred to the subsequent arrest ofAsif in 2001
in connection with Khadim's kidnapping case and that he was
taken to Calcutta Bhavani Bhavan. He mentioned about the
killing of Asif on 08.12.2001 by the Rajkot Police in a fake
c encounter. He also referred to the visit of the police at the
residence on 02.04.2002 and the search made in their house.
When PW-39 was specifically asked as to whether police
searched the room of Asif, he replied as under: "our room was
not searched by police on 02'.04.2002". The Prosecution
D , requested the Court to treat the witness as hostile at that point
of time and cross examined him thereafter. Subsequently he
denied the suggestion that police entered the room of Asif
searched and recovered the notebook Exhibit-45/1 and the
letter dated 14.1.2002 written by Aftab marked as Exhibit-46/
E 1. However, he admitted the signatures found in Exhibits-44/
· 1, 45/1, 46/1, 46/2, 46/3 and 4614. He also confirmed that he
informed the police that Asif went to Kashmir and became a
Jehadi, though he could not remember the date. He also
stated that he informed the police about Asif's meeting with
F one Salahuddin, leader of Hizbul MuZahideen and also Dr.·
Mushtaq Ahmad another leader, when they discussed about
terrorism to be continued in India by them. He further stated
that he informed the police that Asif developed an impression
that the Government of India was not taking proper care of
G Muslims and therefore, they wanted to teach a lesson to the
Indian Government with the help of militant groups of Kashmir.
Dr. Mushtaq Ahmad who came to their residence sometime
back was the very same person who visited them later. He
would further state that he informed the police that Dr. Mushtaq
H . Ahmad stayed in the room of Asif and held closed-door
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 89
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

meetings but he did not state to police as to whether he heard A
them discussing about Jehad against India.
67. In the course of his cross examination on behalf of
AppellantAftab and others, PW-39 addressed the Court and
gave a statement. In the said statement he attempted to throw
allegations against the police that he was forced to affix his B
signatures antedating them and that he was under mental
pressure by police authorities. However, certain statements
made by PW-39 are significant which are as under:
"I was put into belief thatAftabAnsari is the root cause of
all evils caused to by elder brother from his arrest to death C
and I began to hate Aftab Ansari. I came to learn about
Asif's various activities from the chargesheet of TADA
case at Delhi. The statement which is made to police is
on the basis of chargesheet of TADA case. There is no
man namedAftabAnsari in the chargesheet. I have read D
only.one chargesheet against my elder brother. I gave
statement to police, to some extent truly voluntarily and
to some extent under pressure; later it transpired that
some statements were inserted that which I did not state.
I state about the mental state of Asif and his E
disillusionment against the Government of India which I
gathered from the chargeesheet of Tada case."
(underlining is ours)
68. At the end of \he cross examination on behalf of F
AppellantAftab, he confirmed that it was a fact that he identified
Aftab Ansari and Jamiludin Nasir in Court under the pressure
of Police. Again he stated that it was not a fact that under
pressure of police 'I indentified these persons'. Learned
counsel by referring to the above evidence of PWs-123, 105
and 39 submitted that the above evidences were not sufficient G
enough to convict the Appellant Aftab. Again, the learned
counsel by referring to Section 30 of the Evidence Act would
contend that they were not substantive enough to be relied
upon. Learned counsel relied upon Haric~aran Kurmi vs. H
90 SUPREME COURT REPORTS [2014] 14 S.C,R:

A State of Bihar-AIR 1964 SC 1184, Mohd. Khalid vs. State
ofW.B. - (2002) 7 SCC 334, Navjot Sandhu@Afsan Guru
(supra), Kehar Singh and others vs. State (Delhi
Administration) - (1988) 3 SCC 609 for the purpose of
clarifying the position that various reference to car numbers in
,, B diary Exhibit-45/1 would not be sufficient to convict the
Appellant however much suspicious it may be. The learned
co.unsel therefore, contended that neither the letter nor the diary
entry can be relied upon or believed to prove the conspiracy.
Reliance was place upon State through Superintendant of
C Police, CBI/SIT vs. Nalini and others -.(1999) 5 SCC 253
and Alamgir vs. State (NCT, Delhi) - (2003) 1 SCC 21,
wherein it was cautioned by this Court not to rely upon such
slippery evidenc~ and that by barely relying upon handwriting
expert's opinion, a conclusion cannot be drawn. ·
D 69. As against the above submission of Ms. Nitya
Ramakrishnan learned counsel for the Appellant, Mr. Siddharth
Luthra, learned Additional Solicitor General in his submission
contended that the confession of Appellant Nasir was voluntary
and can therefore be relied upon by the Court. The Learned
E Additional Solicitor General contended thatthe contents of the
confession of Appellant Nasir was fully corroborated inasmuch
as the Prosecution was able to retrieve all the e-mails based
on some of the entries found in the diary maintained by Asif,
the passwords given by Appellant Nasir and the downloaded
F .messages from the various e-mail accounts revealed how the
entire operation was carried out. Learned Additional Solicitor
General would describe the whole scheme of the operation·
carried out by the Appellants into four parts, namely, forming a
Jehadi movement, visiting Kashmir for that purpose arid
G subsequent meeting of Asif with Appellant Aftab when they
conspired and subsequently at the instance of AppellantAftab
a further conspiracy was carried out to take a revenge for the
killing of Asif. LearnedAdditional Solicitor General, however,
fairly submitted that the acquittal of A4 and A5 became final
H
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 91
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

as the same was not challenged by the State. As far as the A
acquittal of P<2. and A3 is concerned, he contended that the
same has been challenged in Criminal Appeal Nos.1244 to
1247 of 2010 and in the very same appeal, the state has also
challenged the reduction of offence and sentence imposed on
A-6, 7 and 9 who were acquitted of conspiracy for murder but B
were convicted for forgery by the High Court. It will have to be
reiterated that we have de-tagged the said Criminal Appeal
Nos.1244-47 of2010 for want of time.
70. As far as the conviction and sentence imposed on
Appellant Nasir and Aftab is concerned, learned Additional C
Solicitor General pointed out that altogether 17 persons were
involved out of whom 9 of them were prosecuted and dealt
with by the trial Court and the High Court. One absconder by
name Sadakat is now facing trial and that Niaz Hussain, Fiaz
Hussain, Hazrat Imam and Abdullah are still abscondil)g while_ D
Asif is no more.Two others namely Zahid and Salim died in
the Hazaribagh encounter. Learned Additional Solicitor General
referred to the testimony of PW-6 and whose information was
noted in Exhibit-11 in the form of a statement and that the
wireless information given by him was forwarded to the E
Shakespeare Sarani Police Station which was entered in the
GD. as entry No.1899 at 6.36 a.m. Learned Additional Solicitor
General also referred to a formal FIR Exhibit-261. Learned
Additional Solicitor General therefore, contended that there
was no doubt as to the registration of the FIR, that the evidence F .
of PW-121 disclose that the ?tatement was recorded between
- 9-10 a.m. and that after visiting the spot, he went to SSKM
Hospital and recorded the statement. He also pointed out that
the hospital was just about 1 km from the place of occurrence.
The learned Additional Solicitor General then referred to the G
evidence of PWs-9, 15, 18, 19 and 20 who were all eye-
witnesses to the incident, as well as the evidence of PW-62
who happen to note the presence of Appellant Nasir along with
the absconding accused Abdullah the two assailants; namely,
H
92 SUPREME COURT REPORTS [2014] 14 S.C.R.

A the deceased Zahid and accused Sadakat who is now facing
trial. Leaned Additional Solicitor General also pointed out that
the colour of the jacket owned by the shooter and the driver of
the bike were uniformly stated by the eye-witnesses to the
occurrence and the only variation was. by PW-62 who
B interchanged the jacket. The learned Additional Solicitor
General submitted that the plausible explanation can be that
in between the place of occurrence namely the American
Centre and the Rippon Street .Circular Road Crossing, where
PW-62 noted the presence of Zahid and Sadakat, what really
c happened as regards the wearing of jacket cannot be stated
with any certainty. The learned Additional Solicitor General
stated that when there was ov~rwhelming evidence of the eye-
witness as well as the witness who noticed the jackets of the
driver of the bike and the pillion rider at No.1 Tiljala Lane, the
D change of colour mentioned by PW-62 will not materially affect
the case of the Prosecution. The learned Additional Solicitor
General further pointed out that in any event, PW-62 was able
to identify Appellant Nasir in the Test Identification Parade and
also the photograph of the deceased Zahid Exhibit-XXVI and,
E therefore, there was enough evidence supporting the case of
the Prosecution to confirm the conviction. The learned
Additional Solicitor General again fairly submitted that though
the AK-47 Rifle seized· from Hazaribagh was different from
the one which was used at American Centre, an attempt was
F made to find out whether the weapon seized in Hazaribagh
were used in the offence. However, the forensic report
. disclosed that those weapons were not used. The Additional
Solicitor General therefore, submitted that the Prosecution
never attempted to insist that those weapons seized including.
G the AK-47 rifle were the weapons used in "the attack at
American Centre .. While referring to the evidence of PW-J 13,
who was posted <?S the O.C. ot'Hazaribagh Police Station and
was part of the in<testigation team at the Hazaribagh incident,
learned Additional Solicito"r General submitted that those
H
MD. :JAMILUDIN NASIR v. STATE OF WEST BENGAL 93
[FAKKIR MOHAMED IBRAHl.M KALIFULLA, J.)

contradictions pointed by learned counsel for the Appellant A
were minor and the said witness was really important to support
the nabbing of Zahid who died in the encounter and whose ·
link to the incident on 22.2.2002 was found out in that process. ·
Learned Additional Solicitor General by referring to the
evidence of PW-83 Dr. Lakshmikanta Ghose who conducted B
the post mortem of one of the victims, specifically. stated that
the death was due to a gun shot injury and that the injuries
were from high velocity self loading automatic weapons. It
was however, pointed out that PW-83 fairly admitted that such
an information was not referred to in the post mortem report. C
The learned Additional Solicitor General also referred to the
evidence of PW-95, the Senior Scientific Officer and the report
Exhibit-190 and the forensic report and submitted that a
cumulative consideration of the above material evidence
conclusively established the offence for which the Appellants D
were charged. ·'
71. White summing up his arguments, the learned
Additional Solicitor General submitted that the e-mails
exchanged between Nasir andAftab, its contents revealed the
stay of Aftab in Banaras, the purchase of a Jeep, meeting of E
different persons by Appellant Nasir, the contact of Asif and
Aftab, the plan hatched after 14. 01.2002, the decision taken
to shift the target of attack from Bhawani Bhawan to American
Centre, the decision to carry out the mission initially on .
21.01.2002, which was postponed to 22.01.2002 read along F
with the evidence of PW-39, the younger brother of Asif, who
confirmed the mindset of Asif after his joining with Jehadi
movement when he met several of his like minded persons in
their own house where they were discussing about their hatred
towards the Government of India as in their opinion Muslims G
were not given their due share and, therefore, they should take .
a revenge as against the Government. The said version of PW-
39 was fully supporting the confessional statement of Appellant
Nasir wherein he also referred to the declaration made by Asif
H

'\
94 SUPREME COURT REPORTS r2014J 14 s:t.R.

A of having joined the Jehadi movement after his visit to Kashmir
sometime in the year 1991 and thereafter, Asifs introduction
of Appellant NasirtoAftab, the opening of the e-mail accounts
in the name of Appellant Nasir to enable him to keep in touch
with Aftab and carry out all the directions issued by Aftab, on
B various occasions when as per the direction of Aftab and Asif,
Appellant Nasir went to Agra arid Jaisalmer for collecting cash
and on one occasion to collect consignment of Atta which is
the other name for ROX, though the consignment was not
procured at that time, the untimely death of Asif in an encounter
c on 08.12.2001, which angered the gang members of Asif, the
resolution of their desperate mood expressed in Exhibit-46/1,
written by Aftab to the wife of Asif,' the subsequent arrival of
Zahid, Sadakat, Salim and other members who were if!itially
. lodged at Hazaribagh premises and after the demise of Asif
o stayed in No.1, Tiljala Lane flat where the conspiracy was
hatched in the meeting which was attended by Appellant Nasir,
Zahid, Sadakat, Niaz Hussain, Fiaz Hussain, who were every
now and then given e-mail instructions by AppellantAftab. The
decision taken by the conspirators in the meeting held at No.1,
E Tiljala Lane flat were that they decided to attack Bhawani
Bhawan, but heeding to the advice of Appellant Nasir tbat such
<1n attack may result in more causalities of civilians, as well as
to the Minority Commission Office located in the said premises,
they refrained from attacking. The leader of the gang Aftab
F W\:IS subsequently, consulted through e-mail who suggested
to explore the possibility of attacking the American Consulate
or American Centre where after the gang members surveyed
both the places and ultimately felt that attack on the American
Centre would be more appropriate as they found heavy police
G security being posted on the main road adjoining the American
Centre and who were not alert in their duties and in the early
morning the change of shift of police personnel was taking
place. The said decision of the gang was again.forwarded to
Appellant Aftab who having agreed to the proposal, initially
H agreed to lodge the attack on 21.01.2002, which was
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 95
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

postponed to 22.01.2002 and was successfully executed as A
decided by the conspi~ators.
72. Learned Additional Solicitor General submitted that·
all the above factors were fully established by legal evidence
in the form of a confession made under Section 164 of Cr.
P.C. by Appellant Na~ir corroborated by the various e-mails, B
which were retrieved and were proved through PW- 67 and
104, the acquisition of the flat by one of the gang members ·
Niaz Hussain, absconding accused, based on documents
Exhibit63 as well as the oral evidence of PW-47, the use of
Maruti 800 bearing registration No.BRK-4907 and the Suzuki C
Motorcycle bearing registration No.WB-01-P2144, which were
recovered from the premises at No.1, Tiljala Lane, the fake ·
passports secured by Aftab with the assistance of Appellant
Nasir, the securing of Hazaribagh premises on rent supported
by the evidence of the owner, the encounter which had taken D
place at Hazaribagh wherein one of the assailant Zahid and
other gang member Salim, were secured and, the recovery of ..
arms and ammunitions from the Hazaribagh premises, the
diary of Appellant Nasir whose handwriting was established
through the evidence of handwriting expert PW-105, the arrest E
of AppellantAftab in March 2002 and based on the admissible
portion of statement, search was conducted in the premises
of deceased Asif's bedroom where a diary Exhibit-45/1 and
the letter written by Aftab himself to the wife of Asif marked as
Exhibit-46/1 which revealed the mindset of Aftab to take F
revenge for the death of Asif, were all sufficient to conclude
the conspiracy hatched by the Appellants and other gang
members, their loaded mens rea to wage a war against the
State as part of their Jehadi movement and having unfortunately
successfully executed.the said event of attacking the police G
personnel at the American Centre on the morning of
22.01.2002 in which operation as many as 18 police personnel
received gun shot injuries out of which five lost their lives apart
from civilians. The learned Additional Solicitor General,
H
96 SUPREME COURT REPORTS [2014] 14 S.C.R.

A therefore, contended that the imposition of death sentence on
the Appellants for the offences for which-they were convicted
by the trial Court as confirmed by the High Court, does not call
for any interference. Reliance was placed upon the decision
reported in Khushal Rao vs. State of Bombay -AIR 1958
B SC 22 for the proposition that confession if corroborated by
the other evidence against a co-accused can be relied upon
and that the same principle was followed recently in the
decision reported in Ram Singh (supra).
73. The sum and substance of the submission of lea·rned
C counsel for the Appellant was that all events prior to.the killirig
of Asif such as Appellant Nasir's childhood relationship with
Asif, his involvement in Jehad, visit to Kashmir, attempt for
procurement of Atta-ROX, opening of e-mails, etc., were all
wholly irrelevant. Subsequently, it was· submitted that taking a
D flat in No. 1, Tiljala Lane was also irrelevant to the allegation of
conspiracy to the attack of the American Centre. Equally Asif's
detention along with Aftab at Tihar Jail was also irrelevant.
Therefore, according to the learne.d counsel prior to
07.12.2001, i.ei. the killing of Asif which took place on
E · 08.12.2001, wh.atever referred to were wholly irrelevanf. The
learned counsel would contend that whether involvement in
petty Ian? crimes are con~e9ted with attac~ on American
·Centre will have to be examined. It was submrtted that as per
Section 10 of the Evidence Act, itwas only after 07.12.2001
F · the conspiracy was stated to have been hatched. Therefore,
identification of the persons involved and the materials were .
more relevant. While examining the said. aspect, the learned
counsel submitted that the so-called dying declaration of Zahid
· after the Hazaribagh encounter to PW-113 was counter to the
G other evidence and that it was Zahid who was driving and
. Sadakat was the pillion rider and, therefore, that was a material
contradiction compared to the statement of Nasir by way of a
. confession under Section 164. The learned counsel submitted
that this was not answered either by the trial Court or by.the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 97
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

High Court and by the learned Additional Solicitor General. A
She also contended that PW-113 was totally ignorant as to
how the photograph of the deceased .Zahid was taken, who
took it, the details as to the negatives and the person who
handed over the photos to him. Therefore, the identification of
Zahid in Exhibit-XXVI and Salim in Exhibit-XXVll by PW-113 B
cannot be relied upon. In the said background, it was contented
that the evidence of PW-62 on the identification of the
deceased Zahid was also unreliable. It was, therefore,
contended that if the oral dying declaration of Zahid to PW-
113 is to be taken as true in all respects, as per which Zahid c
was the shooter and Sadakat was the driver then the statement
contained in Nasir's confession as well as that of PWs-47, 48
and 62 will be wholly untrue. By referring to the eye-witnesses, .
the learned counsel submitted that on the 7 spot eye-witnesses,
3 have said that Zahid was involved in the shooting, while PWs- D
15, 18 and 19 only stated that he was one of the two who was
involved in the shooting and PWs-16 and 19 identified Zahid
as one of the miscreants. Therefore, such a reference made
by the eye-witnesses cannot form the basis to conclude as to
who was the shooter and who was the driver of the motor bike. · E
The contention was that the contradictions on identification was
therefore overv.ihelming with reference to the person, as well
as the dress worn by the two so-called assailants and,
therefore, it will be wholly unsafe to rely on such a weak evidence
to confirm the conviction. While referring_to PW-62, the learned F
counsel contended that he identified, only based on his
memory, of the driver with the particular colour jacket and the
other person who got into the parked car driven by Appellant
Nasir and not based on their respective facial features.
Therefore, the learned counsel contended when there is G
serious d0ubt about the place where he saw them where the.
car.was stated to have been parked and the difference in the
colour of the jacket and the contradiction is serious enough to
reject his evidence. It was also contended that according to
PW-62, he approached a known police officer on his own · H
98 SUPREME COURT REPORTS [2014f14 S.C.R.

A accord and disclosed what he saw on thedate.ofthe incident.
The learned counsel contended that such a claim of PW-62
would attract Sections 7 and 11 of the Evidence Act inasmuch
as persons who were involved in such a planned crime would
not have given scope for creating a traffic jam or high
B acceleration of the vehicle and, therefore, it is hard to believe
that PW-62 could have witnessed such an incident and
reported to the police. Therefore, the evidence of PW-62 in
referring to the traffic jam, colour of the jacket of the assailants
is wholly unbelievable. The learned counsel submitted that PW-
C 62 who had the glimpse of the assailants deceased Zahid,
Sadakat and Appellant Nasir could not have identified Zahid
by looking into the photo after 1Yi year of the incident and,
therefore, the evidence of PW-62 should be put to a litmus
test. The learned counsel therefore cont~nded that even the
D Test Identification Parade of Appellant Nasir, who was
apprehended on 29.01.2002 and the holding of the Test
Identification Parade on 11.03.2002, ~reates serious doubts
and aspersions inasmuch as in between the two dates, he
was taken to several places. The learned counsel therefore
E contended that no reliance can be placed upon PW-62 or other
Witnesses.
74. As far as PW-4"7 was concerned, the learned counsel .
· contended that he himself was involved in a dacoity case, that
while his statement was recorded on 29•h:3o•h January 2002
F he was in the police custody from that very date till 7'h February
2002 and, therefore, his version is also wholly unreliable. As
far as PW-48 is concerned, according to the learned counsel,
his evidence cannot also be relied upon, inasmuch as, he
denied his role as a Witness in some other case and, therefore,
G he must have been a stock witness. If the above evidence of
the Witnesses is eschewed then virtually there is no
corroboration of the confession of Appellant Nasir.
Consequently, there was no reliable evidence on which the
case ofthe Prosecution was built and consequently, the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 99
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

conviction cannot be sustained. The learned counsel for the A
Appellant reiterated her submission as to why the confession
of Nasir should not be relied upon as the r.ecording of his
confession was made when he was in police custody on
21.02.2002 and that the Magistrate did not properly ensured
his segregation and relieved from the clutches of police before B
recording his confession on 22.02.2002.
75. The learned counsel contended that as a
Constitutional Right when the retraction of the confession was
made, the other requirements ought to be fulfilled to ensure in .
criminal trial that the confessional statement can be relied upon. C
It was submitted that the every detail of the confessional
statement was prepared as early as on 12.02.2002 itself based
on e-mails and it was ·a tailor-made statement on 22.02.2002
when he was in police custody and such recording was made
up to 7 p.m. On corroboration the learned counsel contended D
that the weapons seized were admittedly not used at the place·
of occurrence and there was no evidence as to what happened
to those weapons if the weapons seized at Hazaribagh were
nothing to do with the incident. It was contended that the parking
of the car at Rippon Street Circular Road Crossing was not E
proved inasmuch as the contradiction was not explained and; ·
therefore, what could not be supported by way of legally
acceptable evidence was sought to be filled up with the tailor-
made confession.
76. Learned counsel therefore, contended that all the F
above factors. ~mly shows considerable doubt and that the
benefit of doubt should go in favour of the Appellants. The
learned counsel relied upon the decisions reported in
Rabindra Kumar Pal @Dara Singh vs. Republic of India
- (2011) 2 SCC 490 at page 508 paragraphs 41, 42, 44, 45, G
50 and 53. Reliance was also placed upon the decision Navjot
Sandhu@Afsan Guru (supra) at pages 746, 747, 748, 750,
751 paragraph 229. Learned counsel also relied upon
Rabindra Kumar Pal @Dara Singh (supra), paragraph 64
H
100 SUPREME COURT REPORTS (2014) 14 S.C.R.

A for the principles on 164 confession. Reliance was also placed
upon the decisions in Subash and Shiv Shankar vs. State
of U.P. -AIR 1987 SC 1222 at 1224 paragraphs 8 and 9 and
Nalini (supra) at paragraph 7 for the proposition that mere
presence of accused with the gang of conspirators will not be
B sufficient and that there must have been an agreement to the
conspiracy. Reliance was also placed upon paragraphs 603,
604 and 607 of the said Judgment. Reliance was also placed
upon Mohammed Ajmal Mohammad Amir Kasab @Abu
Mujahid vs. State of Maharashtra - (2012) 9 SCC 1 at page
c 201 paragraph 526 for the above proposition.
77. As far asAppellantAftab's case was concerned, the
learned counsel contended that the Pr.osecution primarily relied
upon Appellant Nasir's confession and since the confession
of a co-accused is not substantive evidence the same can be
D examined only as provided under Section 30 of the Evidence
Act Therefore, if only the rest of the evidence can be believed
· the conviction of Aftab cannot be approved. The Learned
counsel .contended that in the first place the retracted
confession of Nasir cannot be relied upon. If confession of
E Appellant Nasir cannot be relied upon what left is a letter said
to have been written by Aftab to Asif's wife and a diary which ·
was seized fromAsif's house. As far as the diary is concerned,
learned counsel contended that it does not contain any details
except some entry relating to a stolen car. That at best, It can
F only lead to a charge of stealing of the car and nothing more.
As far· as the letter Exhibit-46/1 is concerned the learned
counsel contended that it only states thatAmir was making all
preparation and it does not show who that Amir was and at
best it can only be stated that an expression of anguish was
G made in that letter over the killing of Asif and in the absence of
the examination of the lady namely the 'Bhabhi ji' no reliance
can be placed upon the said exhibit. As far as the evidence of
PW-39 was concerned, itwas contended that.he admitted and
signed a backdated statement and therefore, a letter recovered
H in such murky circumstances cannot be relied upon and in any
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 101
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

case the said letter was not in any way connected with the A
incident occurred on 22.01.2002. Learned counsel therefore,
contended that the letter cannot be the basis for supporting
the. confession or to prove the conspiracy. By referring to the
e-mail messages, the learned counsel contended that the
messages also do not make any reference to the conspiracy B
and no explosive was used in the attack. The learned counsel,
therefore, contended that there was virtually no evidence
againstAftab in order to support the conviction. The case at
best is only suspicion in so far asAftab is concerned and there
is no legally acceptable evidence against him. In support of C
her submission reliance was place upon Haricharan Kurmi
(supra) at paragraph 12, Navjot Sandhu @ Afsan Guru
(supra) at paragraph 38, Kehar Singh (supra) at page 730
paragraphs 269 &270 and Alamgir (supra) at paragraph 13.
The learned counsel therefore contended that the appeal D
deserved to be allowed and the Appellants should be set at
liberty.
78. Having heard learned for the Appellant as well as
learned Additional Solicitor General for the State, we formulate
the following questions for consideration in this appeal: .E
1) Whether the charge under Section 27 (3) of the Arms
Act can be maintained in the light of the decision of
th.is Court in Dalbir Singh (supra)?
2) Whether apart from the confes;sion of Appellant Nasir
what are the material legal evidence oral and F
documentary as well as in the form of material objects
to support the case of Prosecution?
3) Whether the confession of Appellant Nasir was
recorded in acsordance with Section 164 Cr.P.C? G
4) To what extent the contents of the confession can be
used by the Prosecution?
5) Whether there was any contradiction in the evidence
both oral as well as documentary vis-a-vis the
confession made by Appellant Nasir? H
102 SUPREME COURT REPORTS [2014] 14 S.C.R.

A · 6) Whether the confession ofAppellant Nasir can be relied
upon as against the co-accused/AppellantAftab?
7) Whether there was sufficient corroboration:.i:lf the
contents of the confession of Appellant Nasir with the
other evidence both oral and documentary relied upon
B by the Prosecution?
8) Whether the offence charged against the Appellant
for which the Appellants were proceeded against were
conclusively proved?
9) If the offence was made out as held by the Courts below
c whether the sentence of death can be held to be the
appropriate punishment, if not, what is the punishment
to be imposed?
79. Having formulated the questions, we now proceed
0 to answer the same in seriatum.
80. Question No.1: Whether the charge under Section
27(3) of the Arms Act can be _maintained in the light of the
decision of this Court in Dalbir Singh (supra)?
We have considered this question in the very beginning
E of our Judgment and by referring to paragraphs 85 to 91 which
. we have extracted earlier, we have held that Section 27(3) of
the Arms Act having been struck down on the ground that it
was ultra vires of the Constitution and declared as void, the
convictions and sentence imposed on the Appellants under
F Section 27(3) of the Arms Act cannot survive and .the said
question is, therefore, answered in .the affirmative.
81. Question No.2: Whether apart from the confession
of Appellant Nasir what are the material legal evidence oral,
documentary as well as in the form of material objects to
G support the case of Prosecution? ·
When we proceed to answer the said question, we will
have to refer to the Witnesses who were examined in support
of the charges and whose evidence touches upon the crucial
facts involved in the case. The Witnesses are PW-6, PW-9,
H
"·-·

MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 103 ·
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

. PW-15, PW-16, PW-18, PW-19, PW-20, PW-37, PW-38; PW- A
39, PW-47, PW-62, PW-S.3, PW-95, PW-97, PW-105, PW-
113, and PW-123. Having noted the Witnesses who were
examined in support of the charges, it is necessary to briefly
note the version of those Witnesses and to what extent the
said version supported the case of the Prosecution. To start B
with, we can refer to the evidence of PW-6, who is the
Complainant. PW-6 is one Barun Kumar Saha who was
working as a Sergeant on the date of occurrence, namely,
22.01.2002. He was posted in the Wireless Branch of Calcutta
Police and was on night duty from 21.01.2002. According to c
him, at 6.30 a.m. of 22.01.2002 when he was on night shift
duty in the vehicle No.WG-60 he went to the American Centre
as part of his duty. The vehicle was parked by his driver in front
of the American Centre. He got down from the vehicle on the
left side, while the driver was in his seat. The time, according D
to him, was about 6.30 a.m. and that suddenly he saw one boy
of 25-_30 years not known to him wearing a pant, shirt and an
open jacket of brown colour holding AK-47 rifle in his hand
and started shooting towards the police force who were
changing over duty at American Centre and another person of E
same age group also wearing a pant and shirt as well as a
green colour jacket following the other boy in a black colour
motorcycle and the boy firing at the police force while moving
also abused the police personnel. PW-6 would say that when
he tried to counter both of them by pulling his revolver the man F
who was firing with AK-47 aimed at him while firing and
therefore, he ducked by the side of his Jeep. He also stated
that thereafter, the said boy boarded the motorcycle run by the
other man and fled aw.aytowards South in full speed while he
continued to fire the gun. He fu.rther stated that he saw several G
men of the police force in duty before the American Centre
were lying down bleeding on the footpath on the ground, etc.
PW-6 identified the person who was driving the motor bike by
referring to his photograph which was marked as Exhibit-XXVI
·and the colour photograph which was marked as Exhibit-XXVll. H
104 SUPREME COURT REPORTS [2014] 14 S.C.R.

A He identified the green colour jacket worn by the driver of the
motorcycle which was marked as material Exhibit-XXVJJI.
According to PW-6, both the persons who were firing at the
police force were at a distance of 10-15 feet from the prison
van in the North-West direction. PW-6 through wireless
B communicated the said incident on 22.01.2002 at 6.36 a.m.
which was in turn communicated to the jurisdiction police
station, namely, Shakespeare Sarani Police Station and the
information which was received at 6.36 a.m. was entered in
the G.D. bearing No.1889. The summ~ryofthe content of the
c information was recorded and the same was treated as the
FIR. The statement of PW-6 was also recorded which form
part of the FIR and on .23.01.2002 a further statement of PW-
6 was also received in the police station wherein PW-6
mentioned that he forgot to mention about the gun-man who
D was firing fromAK-47 rifle was wearing a Green colour jacket
and the man on motorcycle who was wearing a Brown colour
jacket. This is the sum and substance of the evidence of PW-
6. From the evidence of PW-6, it transpires that there was a
firing incident at the American Centre towards the police force
E by two miscreants, that one who was wearing a Brown colour
jacket was firing with AK-47 rifle while the person wlio was
wearing a Green colour jacket was closely following him in a
Black colour motorcycle, that PW-6 identified the photograph
of the person who was driving the motor bike marked as
F Exhibit-XXIV. The Green colour jacket worn by him was marked
as Exhibit-XXVl-11. Further, having witnessed the incident
himself and as he was the Sergeant of the wireless section of
Calcutta police, he immediately conveyed the information
through wireless to the Control Room of the Calcutta police.
G PW-6 also identified the motor bike which• was marked as
material Exhibit-XXX.
82. The next witness is PW-9. On the relevant date he
was working as Inspector attached to Calcutta Armed Police,
9th Battalion. His name is Gopal Chandra Dubey. He in his
H · evidence while confirming the version of PW-6 as to what ·
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 105
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

happened in the early morning of 22.01.2002 he also confirmed A
that due to the firing by the two miscreants, police personnel
were got injured, that the person who was firing towards the
police force withAK-47 rifle was wearing Chocolate (Brown)
colour jacket while the person who was riding the motorcycle
was wearing Green colour jacket and that he was also firing B
with 9 mm pistol. PW-9 identified the Green colour jacket worn
by the rider of the motorcycle as material Exhibit-XXIX and
the colour photograph of the man who was driving the motor
bike as material Exhibit-XXVI. He also identified the Chocolate
(Brown) colour jacket worn by the man who was firing as c
material Exhibit-XXVlll.
83. PW-15 is another eye-witness to the incident who
was Constable attached to Calcutta Armed Police who was
on duty in the night shift of 21.01.2002 before the.American
Centre and after performing his night duty on the early morning D
of 21.01.2002 while the shifting was taking place he confirmed
the version of PW-6 and PW-9 and stated that the person who
was firing with AK-.47 rifle was wearing a Brown colour jacket
and the person who was driving the motor bike was wearing
Green colour jacket. He also identified the material exhibit bike E·
as well as the photograph of the shooter.
84. PW-16 is one Rana Pratap Sinha another Constable
working in Armed police who was also on duty at the relevant
point of time, i.e. on 21.01.2002 who also confirmed the version
of PWs-6, 9 and 15. According to him, he saw the man wearing F
Chocolate (Brown) colour jacket firing towards the police force
with AK-47 rifle and the man who was riding the bike was
wearing a Green colour jacket. He also identified the photo of
the person who was firing with AK-47 rifle.
85. PW-18 Roshan Chhetri stated that another Constable G
of Armed Police who was on the night duty on 21.01.2002 in
· the wireless van, witnesses the man wearing Chocolate
(Brown) colour jacket firing with AK-4 7 rifle and before PW-18
could fire at the miscreants, bullets shot fired by the miscreants
H
106 SUPREME COURT REPORTS [2014] 14 S.C.R.

A hit him in his ring finger and that he fell down. He, however
· stated that he saw the other miscreants wearing Green colour
jacket riding the motor bike. He also identified the jacket which
was marked.
86. Identical version was spoken to by the other two eye-
B witnesses, namely, PWs-19 and 20.
87. All the above eye-witnesses uniformly confirmed that
of the two miscreants th~ one who was firing towards the police
force at 6.30 a.rn. on 21.01.2002 was wearing a Chocolate
(Brown) colour jacket and the person who was riding the motor
C · bike was wearing a Green colour jacket. The evidence of PW-
6 is categoric to the effect that the shooting operation, at the
. instance of the miscreants, was from a distance of 10 to 15
feet. Therefore, a cumulative consideration of the above version
of the eye-witnesses confirm the involvement of the two
D miscreants, that the one who was shooting .was wearing a
Chocolate (Brown) colour jacket, that the one who was wearing
a Green colour jacket was riding the motor bike who was also
firing with aid of 9 mm pistol, that the occurrence took place
on 22.01.2002 at about 6.30 a.m., that due to the firing incident
E · many of the police personnel who were on duty both in the
previous shift of 21-22.01.2002 and the other group of
personnel who were changing over the duty from the morning_
of 22.01.2002 were injured severely as many of them were
found lying on the ground and the empty bullets were scattered
F all around the place. It was also confirmed that the shooting
was within a distance of 10 to 15 feet from the miscreants and
the target of attack.
88. Having noted the above eye-witness account of the
Witnesses PW-6, PW-9, PW-15, PW-16, PW-18, PW-19and·
G PW-20, we can proceed to cpnsider the version of the other
Witnesses.
89. Going by seriatum we can refer to PWs-37 and 38.
The sum and substance of the evidence of PW-37 can be noted
as under.
H
MD, JAMILUDIN NASIR v. STATE OF WEST BENGAL 107
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

~Q. As per the version of PWs-37 and 38 Sanjay Paul A
and Jayant Kumar Bose, both were taking tea at the crossing
of Middleton Street and Rippon Street Circular Road Crossing
in the Punjabi Tea Stall. That on 20'h January, 2002 at 6.30
a.m., they saw a Blue colour Maruti Car which came in high
speed and sudden brake was applied and in that process B
another person who was sipping his tea got it spilled over his
hand pursuant to which an altercation took place between the
said man and the driver of the vehicle. They, therefore, noted.
the number of the vehicle as BRK-4907. They also stated that
motor bike followed the said Maruti Car and the rider of the c
motorcycle joined with the driver of the car in abusing the other
person who got his tea spilled over. They further stated that on
22.01.2002 they noticed a motor bike crossing PW-37 in full
speed towards Camac Street. From the evidence of PWs-37
and 38 what all could be gathered was that they happened to D
see the Maruti 800 car bearing Registration No.BRK-4907
parked at the crossing of Middleton Street and Rippon Street"
Circular Road Crossing near Punjabi Tea Stall.
91. Keeping the said part of the evidence of PW-37 in
mind, the evidence of other Witnesses PWs-47 and 62 can E
be referred to.According to PW-47, Dilip Kumar Singh, who
is a building promoter and who promoted the building at No.1,
liljala Lane in July 2001 handed over possession of the flat in
the ground floor of the said building to one Niaz Hussain who
was introduced to him by Appellant Nasir, who was also living F
in the same lane in a different building. According to PW-47
on 20.01.2002, he noticed Appellant Nasir along with another
person went out in the early morning 5.30 a.m. in the Maruti
800 Car and two other persons who were also staying in No.1,
Tiljala Lane followed the said Maruti Car in a motor bike. It is, G
however, elicited in cross-examination that he was in the
custody of the police between 30.01.2002 and 07.02.2002 in
.connection with the ·dacoity Case which was disposed on
07. 02.2002. The other part of his evidence related to the sale
H"
108 SUPREME COURT REPORTS [2014] 14 S.C.R.

A effectuated by him in favour.of oneNiaz Hussain, absconding
accused, the ground floor flat in No.1, Tiljala Lane for a sale
consideration of Rs.2,66,000/- and that possession was
handed over to Niaz Hussain. and the same date when the
document was executed, namely, 11.07.2001. Since the.
B execution of the document for flat No.1, Tiljala Lane was born
out by Exhibit P-4 which was also witnessed by the owner of
the land who was also examined as PW-48 apart from the
exhibit having been marked, to that extent, the eviden.ce of
PW-47 can be accepted. PW-48 is one Benod Kumar Roy
C who is also.resident of No.1, Tiljala Lane living in the first.floor.
He witnessed the sale document to Niaz Hussain.::.,:iii... his
evidence he confirmed the seizure of Pakistan National Flag
from the ground floor flat occupied· by Niaz Hussain at No.46,
Tiljala Lane on 5.2.2002.
D 92. The other relevant witness is PW-62. PW-62 is one
Shahid Iqbal. According to him, on 22.01.2002 at 6. a.m., he
went to Beniapukur Lane to purchase milk and at that time his
· friend one Gilbert Gomes was also present, (not examined)
as a witness as he was not keeping good health. PW-62
E deposed that while he was in front of the shop of one Ashok
Nandi at Beniapokur Lane he saw a Maruti Car parked in. front
of the shop of Nandi, that a Lorry got struck in the saidToad
due to the haphazard parking of the Maruti Car, thereto(~. out
of curiosity he noticed the number of the vehicle whic~:was
F BRK-4907. He would say that to clear the traffic jam he asked
the car driver to set right the parking of his vehicle, that with
some hesitation the driver corrected the parking and that a
little later he saw a Black colour motor bike which came there
from which one gentleman was the pillion rider got down telling
G the driver of Maruti Car 'KAAM HO GAY/\ and that the said
person holding a cricket bat bag on his shoulder, which contains
some material inside. PW-62 also noted the number of the
motor bike which he later identified in the Court at the time of
his examination. According to PW-62, on that day, in the
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 109
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

forenoon when news spread about the firing which had taken A
place at the American Centre, he felt that the occupants of
Maruti Car and the Black motor bike might be involved in the
occurrence and since he knew one PW 101 Police Inspector
of Lalbazar by name Shaleh Babu, he along with his friend
Gilbert Gomes approached him and informed as to what they B
witnessed in the morning. He further stated that as per his
direction, he gave his statement to the officer of the Special.
Investigation Team. There was a Test Identification Parade in
which PW-62 identified Appellant Nasir. He also identified the
photo of the motor bike rider which was marked as Exhibit- C
XXVI.
93. Though, extensive cross-examination of PW-62 was
made and learned counsel for the Appellant triea to prick-holes
in his evidence, we are convinced that the. version of PW-62
being an independent witness and having been able to pass D
on the information whatever he noticed in the morning on the
very same day in the forenoon to one of his known police officer,
namely, Mr. Shaleh Babu; Inspector of Lalbazar, there is no
reason why his version should not be.accepted in the absence
of any other serious deficiency pointed out either as ir;iterested E
witness or_a stock witness or any other deficiency on his part ..
As far as the non-examination of his friend Gilbert Gomes was
concerned, it was established before the Court that at the time
of trial, the said person was seriously ill and the necessary
medical records were also produced in support of the said F
stand. Therefore, non-examination of friend of PW-62 also
does not cause any dent in his version.
94. The next witness is PW-39. PW-39, Ali Reza Khan,
is the younger brother of the deceased Asif. The evidence of
PW-39 is to the effect that Appellant Nasir was the childhood G
friend of Asif, that Asif after his schooling and graduation went
toAligarh Muslim University to study Journalism, that he joined
the Student .Islamic Organisation and that in 1993-94 he was
arrested in a TADA case. PW-39 while revealing the names
H
110 SUPREME COURT REPORTS [2014) 14 S.C.R.

A of the friends of Asif referred to Abdullah who is one of the
absconding accused. He also referred to Dr. Mushtaq Ahmed,
a Kashmiri, who once came and stayed in their house along
with Asif. According to PW-39, Dr. Mushtaq Ahmed was also
a co-accused with Asif which he noticed when he visited Tees
B Hazari Court. PW-39 also referred toAppellantAftab who was
introduced to him by his brother Asif at Delhi. In one place
PW-39 mentioned that when Abdullah came to their residence
after 1999 his mother was seriously perturbed and scolded
him and also showed him a broom stick and thereafter, none
c of the friends of Asif visited their house. The further evidence
of PW-39 was that Asif was involved in the kidnap of Khadim
and that he was taken into custody and kept at Calcutta Bhawani
Bhawan. He also referred to the killing of Asif in December,
2001 at Rajkot in a fake encounter. Though, PW-39 referred ·
D to the visit of police officers to their house on 2nd April 2002 he
denied any search conducted in the house. At that stage at the
request of Public Prosecutor he was treated as a hostile
witness and the Public Prosecutor was allowed to cross-
examine him. In the cross,.examination though PW-39 admitted
E his signatures in Exhibits-44/1, 45/1, 46/1, 46/2, 46/3 and 46/
4, he took the stand that he put his signature out of compulsion.
· In the cross,.examination PW-39, however, stated that he did
inform police that Asif went to Kashmir and became Jehadi.
He further elaborated by saying that he came to know thatAsif
F went to Kashmir met one Mr. Salahuddin leader of Hijbul
MuZahiddin and Dr. Mushtaq Ahmed another leader and
discussed about the terrorism to be continued in India. PW-.
39 confirmed that he informed the police that Asif developed
an impression that the Government of India was not taking
G proper care of Muslims and for that they wanted to teach a
lesson to the Indian Government with the help of militant groups
of Kashmir. He also confirmed that Dr. Mushtaq Ahmed who
earlier visited their house was the very same person whom he
referred as Dr. Mushtaq Ahmed. He also deposed that he did
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 111
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

inform police that Dr. Mushtaq Ahmed stayed in their residence A
in the room of Asif arid held close door meeting though he did
not state that such discussion pertain to Jehad against India. It
is also the evidence of PW-39 that he was made to believe
that Aftab was a root cause for all the evil caused to his elder
brother from the date of his arrest till his death and that PW-39 B
developed hatred for Aftab. Though, PW-39 turned hostile
towards the end of his chief examination, almost at the point
of conclusion of his evidence, he made a statement that
whatever statement he gave to police was to some extent true
and voluntary and to some extent under pressure. He also c
stated that the mental state of Asif and his disillusionment
against the Government of India was gathered by him from the
Chargesheet filed against Asif in the TADA case. PW-39 in
the course of his chief-examination identified both Nasir and
Aftab in Court though, at the end of his deposition, he stated D
that he identified both of them under the pressure of the police.
From the version of PW-39 which even according to his own
version contain half-truth and half of it was voluntary. From the
manner in which he deposed before the Court, it can be safely
stated that whatever he stated about Asif's contact with E
Appellant Nasir andAftab and alsoAsif's deep involvement in
Jehadi movement with the support of one Mr. Salahuddin, a
leader of Hizbul MuZahiddin as well as another leader by name
Dr. Mushtaq Ahmed, a Kashmiri, with whom he used to discuss
about the militant activities and the hatred towards the F
Government of India were all spontaneous statements. In fact,
his version that he gained a feeling that the fate of Asif ended
in a tragic manner because of his association with Appellant
Aftab, whom according to him Was the root cause for the
· untimely demise of his elder brother. To that extent, the evidence . G
of PW-39 can be noted.
95. We also refer to the evidence of PW-46 who was
one of the detenue along with the deceased Asif in the Tihar
Jail and according to PW-46 he had witnessed the close
contact of Asif with Aftab. H
112 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 96. The next witness is PW-83, who is the postmortem
doctor, who did the postmortem on four bf the dead bodies of
the policemen who were killed in the occurrence on 22.01.2002
at about 6.30 a.m. at the American Centre. After giving a
detailed narration of the outcome of the postmortem conducted
B tiy him on the various bodies, PW-83 stated as under:
"Considering the different wounds of entry on all four dead
bodies and keeping in mind to distance offiring it appears
to me that the bullets were ejected from a high velocity
self-loading automatic weapon. The injuries present on
C all the four dead bodies, particularly the extent injuries
caused on the vital organs of the persons were sufficient
to cause death in ordinary course."
97. Therefore, the said part of the evidence of PW-83
makes it clear that the shooting indulged in by two miscreants
D was from a very sophisticated automatic weapon, namely, AK-
47 and it had resulted in the instantaneous death of the police
personnel. To be fair to the said witness, it must be stated that
in the course of his cross-examination he stated that his opinion
to the effect that the bullets were ejected from high velocity
E self-loading automatic weapon was not mentioned in any of
his postmortem reports ..
98. The next witness is PW-95. PW-95 is one Dr. Ardendu
Sengupta, who held the post of Senior Scientific Officer,
Ballistic Division, Forensic Science Laboratory, Government
F of West Bengal. According to him, he visited the site of
occurrence, namely, the American Centre on 22.01.2002 and
after extensive search of nu'mber of physical evidence of
violence of various nature in different spots of that place, the
recoveries of blood, small bone fragments, fresh mark of
G violence, scattered presence of rifle bullets and bullet parts,
steel core jackets, blood stains marks in various places, holes
found in different places of the fans, building, walls, trees, etc.,
dents found in the pavements, the back rest of chairs, reception
entrance, front wall, side wall, main gate, grill, the bullet jackets,
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 113
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

steel course stated that such holes and size of the dents and A
other damages, indicated that they were all caused by gun
shot and the distribution of this holes, dents and damages
suggested that automatic or semi-automatic type of firearm
was involved in the crime, that the nature of portions of bullets
recovered in the place of occurrence indicated that rimless B
ammunition of caliber 7.62 x 39 mm were used in the crime.
He further stated that the directions of the holes and dents
suggested that the projections were directed from the Western
side excepting those on the police post when which appeared
to have been caused by projectiles fired from its back. PW-83 C
also identified his signature in his report marked Exhibits-190
and 190/1. The version of PWs-83 and 95 therefore, confirms
the force with which the shooting activity was indulged in by
the two miscreants towards the police force on the early hours
of 22.01.2002 at the American Centre. D
99. PW-100 is one Kumar Upendra Narayan was
attached to Shakespeare Sarani Police Station on 21.01.2002
as its AS.I. and according to him on 22.01.2002 he received
an information at about 6.36 a.m. from O.C. control reporting
a firing before 38A, Jawaharlal Road, that he informed the O.C. E
to the duty officer and other officers of Thana, that he entered
a G.D. entrytothateffectatabout6.36 a.m. vide a G.D. No.1889
dated 22.01.2002. The said record was marked as Exhibit-
215 and his signature as Exhibit-215/1. The said evidence of
PW-100 shows that immediately after the occurrence the F
information was communicated to the police station and .
necessary entries were made in the G.D. and thereby, provide
no scope for any delay being involved in registering the crime.
100. The next witness is PW-113. His name is Kaushalya
Nand Chowdhury. On 28.01.2002 he was posted as O.C. G
Sadar Police Station, Hazaribagh. He led one of the teams to
ambush some terrorist who were staying in Hazaribagh on 27-
28.01.2002. He further narrated about the manner in which
the ambush of the premises at Hazaribagh was made between
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114 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 2.30 a.m. and 6.45 a.m. For the present, we can make
reference to his evidence in so far as it related to apprehension
of Zahid and Salim in the course of the encounter of the
premises at Hazaribagh. He stated that at 6.45 a.m. they saw
two of the persons escaping from the side door and were also
B shooting against the police which was retaliated by the police.
He further stated that they were able to apprehend two whose
name was Zahid and Salim. PW-113 stated that when they
were carrying the injured man to the hospital he disclosed his
name as Zahid and also revealed that he was a resident of
C Pakistan and that he was involved in the shooting incident that
took place on 22.01.2002. According to PW-113, Zahid further
informed him that in the said shooting incident his companion
was one Sadakat and that the said Sadakat was driving the
motor bike and himself, i.e. Zahid was the pillion rider of the
o motor bike and was firing fromAK-47. PW-113 further stated
that the other injured persons name was Salim and he is also
a man of Laskar-e-Taiba and a resident of Pakistan. PW-113
confirmed that while taking to the hospital Zahid died on the
way while the other injured was admitted as impatient in the
E hospital who also later died and that the said person did not
make arw statement. Since PW-113 being a police officer and
if his claim that Zahid's statement should be construed as a
dying declaration, it should satisfy the rigorous tests of Section
32 of the Evidence Act, we feel that it will be highly risky to rely
F on the said part of his version of PW-113. ft must be noted that
except the ipsi dixit of PW-113 as regards the so-called dying
declaration of Zahid there was no other supporting material in
that respect. It should also be kept in mind that PW-113 was
not the only person who was accompanied Zahid in the vehicle,
G . in fact, while Zahid was stated to have died before reaching
the hospital the co-accused Salim was very much alive and
was admitted in the hospital who stated to have died much
later. We can understand if there had been any statement
recorded from the said person to support the version of PW-
H 113. Therefore, to the extent it related to the so-called dying
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 115
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

declaration claimed to have made before PW-113 by Zahid is A
concerned we are not inclined to accept his evidence relating
to that aspect. Though, as regards the recovery of arms and ·
ammunition said to have been made by PW-113 in the premises
at Hazaribagh at a later point of time can be accepted,
inasmuch as, the same was born out by other records and the B
Witnesses who subscribed to the seizure of those materials.
101. We are, however, very much conscious of the fact
that the encounter and the nabbing of the Zahid, Salim and the
seizure of large quantity of arms and ammunition at Hazaribagh
definitely gave a clue for the investigating machinery of the C
American Centre case to track the miscreants involved in the
offence. It must be stated that the inability to rely upon the so-
called oral dying declaration for wa.nt of legal sanction cannot
be taken to mean that the entirety of the evidence of PW-113
can be eschewed from consideration. We are not prepared to D
· accept the claim of oral dying declaration of Zahid to PW-113,
inasmuch as, if it were to be accepted, it should fall within the
four corners of the prescription contained in Section 32 of the
Evidence Act or otherwise it will create a bad precedent. We,
therefore, do not propose to rely on the said part of the version E
of PW-113 and proceed to find. out as to how the case of the
Prosecution, as against the Appellants, was proved and
whether they succeeded in their attempt.
102. Only other witness who is to be referred is the
Investigating Officer, namely, PW-123-Anil Kar. He was the F
Inspector of Police attached to the Detective Department as
Officer In-charge to Homicide Squad, Lalbazar. He was
entrusted with the task of investigation of the case relating to
the shooting incident in front of the American Centre. In fact,
his deposition discloses that he was nominated as Chief G
Investigating Officer to investigate the said case. According
to him, on 22.02.2002 at about7.35 a.m., when he received a
telephone information from the DCDD about the shoot out took
place at the American Centre he immediately reached that
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116 SUPREME COURT REPORTS [2014] 14 S.C.R.

A spot by 8.15 a.m. and started the investigation process. He
was supported by a team of officials with whom he commenced
the operation._ He explained as to how he was gathering the
details from 22.01.2002 onwards on day to day basis.
According to him, he gathered information on 28,01.2002 that
B the terrorist who were apprehended in the Hazaribagh
encounter may have some link with the case relating to the
American Centre and based on the information gathered, he
searched for the Appellant Nasir and that he also visited his
house at No. 46, Tiljala Road, along with his team and ultimately
C he could nab Nasir on the evening of 29.01.2002 at No.13,
Dargah Road which is the house of Nasir's in-laws. After
arresting Jamilludin Nasir, PW-123 based on the interrogation
was able to unearth the concealment of the Maruti Car and
Motorcycle at No. 1, Tiljala Lane, apart from certain other
o recoveries at the residence of Nasir himself. The evidence of
PW-123, the investigation officer, disclose the collection of
material evidence through the apprehended accused and from
whom the recoveries made based on the admissible portion
of the statement of Appellant Nasir and AppellantAftab, such
E as, the Maruti Car, the Motorcycle, the e-mail particulars, the
driving licences of the Appellant Nasir, Asif, Abdullah, Sadakat,
Zahid, National Flag of Pakistan, sketch map, some letters,
certificates, railway tickets, air tickets from Jaipur to Calcutta,
one pistol 7 .62 bore ammunition, 12 printed pages of e-mails
F by entering the mail. box of the l.D,s, specimen handwriting
and signature of Appellant Nasir, recorded confessional
statement of Nasir as well Shakir Akhtar, the arrest of accused
Musharraf Hussain @ Bobby and the deed of agreement
pertaining to No. 1, Tiljala Lane flat, arrest of AppellantAftab;
G and the recoveries made from the admissible portion of the
statement of Aftab at the residence of the deceased Asif,
namely, a diary and a letter written in Hindi by Aftab to the wife
of Asif expressing his deep anguish and the plan to take
revenge from the police. The holding of Test Identification
H
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 117
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Parade for Appellants Nasir and Aftab, as well as the A
photograph of the deceased Zahid and Salim, obtaining of
sanction from Prosecution under Sections 121 and 121A IPC
from the authorities, preparation of the Chargesheet dated
26.02.2002 against 15 accused wherein 5 absconding
accused detained were also disclosed the collection of B
different reports from the experts such as FSL, handwriting
expert and the opinion of the Public Prosecutor, as well as the
Serological Report received from the experts and based on
the above evidence gathered in the cour!?e of investigation,
he submitted the Chargesheet as against 15 accused c
mentioning that accused 10 to 15 were absconding accused.
103. In the evidence of PW-123, the most significant
aspect related to his requisition for recording the confession
of Appellant Nasir, another accused Shakir Akhtar and the
seizure of vital documents at the residence of Asif at the D
instance of AppellantAftab. On behalf of the Appellant serious
arguments were made contending that the confession of
Appellant Nasir was not recorded in accordance with the
prescription contained under Section 164 of Cr. P.C. as stating
that he could not have been voluntary as he was in police E
custody. While specifically dealing with the confession of
Appellant Nasir we have extensively dealt with the said issue ·
and, therefore, we do not propose to deal with the same again.
We have found that the said submission on behalf of the
Appellant has no.substance. Similarly, the recoveries made at F
the instance of Appellant Aftab at the residence of Asif with
reference to that also we have dealt with in detail and reached
a conclusion that the same was done in accordance with law
and, therefore, there is no infirmity on that score. In other
respects there was not much of controversy relating to evidence G
of PW-123. Therefore, the Final Report filed by PW-123, as
against the accused, formulating the charges based on the
evidence collected by the investigation machinery was duly
considered by the· trial Court as well as the High Court.
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. 118 SUPREME COURT REPORTS (2014] 14 S.C.R

A 104. Having dealt with the oral evidence of the
Prosecution Witnesses. it. will alsci be necessary to refer to
other documentary evidence which are relevant in connection
with the charge laid against the accused and as found proved
by the Judgments impugned in these appeals. The vital
B documents pertaining to the conspiracy and the documents
and material objects pertaining to the occurrence can be
independently set out, in order to appreciate the respective
submissions and for reaching our own conclusion.
105. As far as the conspiracy is concerned, it can be
C referred to those materials which existed or came into being
as between the date Appellant Nasir had came in contact with
Asif in the year 1999 till the death of Asif and the materials
which came into being after his demise. While dealing with
the said materials, the attendant events can also be noted as
D has been discussed in detail in the earlier part of the Judgment
after the contact of Appellant Nasir with Asif in school days.
Both the statements of Nasir as well as PW-39 disclosed that
they met again in the year 1999 after Asif.was released from
Tihar Jail. Thereafter, Appellant Nasir was persuaded by Asif
E to assist him in his future endeavourswhich according to Asif
was starting of construction of buildings and later some leather
business for which he wanted Appellant Nasir to fetch a
premises for accused Niaz Hussain who is absconding. De-
hors, the confession of Appellant Nasir the arrangement of
F securing a ground floor flat at No.1, Tiljala Lane for Niaz Hussain
was born out by the sale agreement dated 11.07.2001 which
was witnessed by PWs-37 and 48. PW-37 is the promoter of
the said building while PW-48 was one of the Witnesses along
with Appellant Nasir to the document. Therefore, after the
G reunion of Appellant Nasir with Asif !n 1999, the significant
event which took place was securing of the ground floor flat
No.1. Tiljala Lane for carrying on the so-called business
operation of Asif along with Niaz Hussain and his brother Fiaz
Hussain for doing some leather business. But it transpired that
H as a matter of fact no such leather business was carried on.
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 119
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

On the other hand it came to light through PW-39 that there A
were frequent meetings of Asif with number of his other friends
of whom his meeting with Salahuddin, a leader of Hijbul
Muza~iddin and another Kashmiri by name Dr. Mushtaq Ahmed
were:$ignificant apart from meeting one Abdullah. According
to PW-39 when Abdullah came to meet Asif at the residence B
of Asif.; the same was not liked by his mother who showed a
broom.stick to Abdullah and whereafter none of Asif's friends
gath~red at his residence. Therefore, the premises of No.1,
Tiljal~J;ane was the meeting point for his gang. While that be
so, af:~~e instance of Asif, Appellant Nasir went to Banaras c
whe~i'iAsif introduced his close friend Appellant Aftab.
TherEyafter, e-mail accounts were opened for Nasir, the details
of whk:_~ were gathered by the Prosecution and placed before
the Court in the form of Exhibit-105. Various messages
transr;n!tted through e-mail were also gathered from the different D
e-ma~.gentres such cyber cafe, cyber centre etc., the Air Travel
undeffaken by Appellant Nasir from Jaipur to Calcutta under
the af)~15 name of Bobby was also gathered through the Airport
Authorities which were all marked. The diary, driving licence,
Natio.Q.Gll Flag of Pakistan, a revolver, a rough sketch showing E
the 1o,9a,tion of American Centre drawn by Appellant Nasir were
all certain other vital documents which were marked before
the tr!?!. Court.
•106. That apart, at the instance of Aftab a diary
maintai_ned by deceased Asif where the accounts of expenses F
were;~1j noted and a letter written by Aftab himself to the wife
of Asif,v,vere also recovered from the residence of Asif. Further,
after, "1e encounter incident of Khan Road Khirgaon,
Hazaribagh which led to the nabbing of deceased Zahid and
Salim, a large ql!antity of arms and ammunitions were also G
recovered from that place, as spoken to by PW-113. The above
materials were considered both by the trial Court as well as by
the High Court. We find from those documents and the oral
evidence gathered by the Prosecution particularly that of PWs-
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120 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 37, 38, 39 and 48 read along with the e-mail messages
disclose that after Asif came in contact with Aftab in Tihar Jail,
there was a serious development iri the mind set of Asif which
was revealed on several occasions in the meetings held at his
residence with Mr. Salahuddin, leader of Hijbul Muzahiddin,
B Dr. Mushtaq Ahmed and Abdullah wherein the deep rooted
anguish of Asif that the Government of India did not meet the
requirements of Muslims in this country and, therefore, they
should teach a lesson to the State. This anguish expressed
did not seem to be sporadic one but the evidence of PW-39
c and.the e-mail messages confirmed that having regard to the
association of Asif with the leaders of Hizbul MuZahiddln and
another Kashmiri Dr. Mushtaq Ahmed as well as Appellant
Aftab, persuaded Asif and his associates to gather arms an
ammunition for insurrection an against the State.
D 107. Having dealt with the conspiracy aspecif.pf the
Appellants it will be worthwhile to refer to the p(i~Ciples
applicable to conspiracy as has been laid down by this Court
in Various decisions. It will be suffice if we refer to the c.f~cision
of this Court reported in Yakub Abdul Razak Marh6n vs.
E The State of Maharashtra, through CBI, Bombay-JT2013
(5) SC 142. Part of paragraphs 62 and 65 will be relevant for
our purpose, which are as under:
"62. An important facet of the Law of Conspiracy is that
apart from it being a distinct offence, all conspirators are
F liable for the acts of each other of the crime or crimes
which have been committed as a result of the conspiracy.
This principle has been recognized right from the early
Judgment in Regina v. Murphy (1873) 173 ER
502 .. : ..... "
G 65. Since conspiracy is hatched in secrecy, to bring home
the charge of conspiracy, it is relevant to decide .
· conclusively the object behind it from the charges levelled
against the accused and the facts of the case. The object
behind it is the ultimate aim of the conspiracy. Further,
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 121
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

many means might have been adopted to achieve this A
ultimate object. The means may even constitute different
offences by themselves, but as long as they are adopted
to achieve the ultimate object of the conspiracy, they are
acts of conspiracy."
108. Having applied the abovesaid principles to the case B
on hand, it must be stated that though the conspiracy in this
case was hatched in secrecy having regard to the various
circumstances exhibited in the form of oral and documentary
evidence supported by the confession of Appellant Nasir, we
find the existence of the conspiracy, the object of the conspiracy C
and the knowledge on the above for the participants of the
conspiracy were all fully established. The outcome of the said
conspiracy, therefore, attracted the charge under Sections 121,
121A and 122 IPC read along with 1208.
109. In this context, we also wish to refer and rely upon D
the decision reported in Govt. of NCT of Delhi vs. Jaspal
Singh - (2003) 10 SCC 586 when the law on this provision
has been succinctly stated. Paragraph 10 along with the extract
of the Judgment reported in Baburao Bajirao Patil vs. State
of Maharashtra - (1971) 3 SCC 432 at page 4~3, can be E
usefully referred to.
"10. So far as the charge under Section 120-8 IPC is
concerned, it stands proved by showing that two or more
persons have agreed to do or cause to do an illegal act
or an act which is not illegal by illegal means and that F
some overt act was done by one of the accused in
pursuance of the same. Where their common object or
design is itself to do an unlawful act, the specification of -
such act itself which formed their common design would
suffice and it would even be unnecessary or superfluous . G
to further substantiate the means adopted by all or any
of them to achieve such object. All the more so, when
their common object or design appears to be to commit
a series of such serious crimes arid proof of any overt
H
122 . SUPREME COURT REPORTS [2014] 14 S.C.R.

A act in such cases also is a mere surplusage and that
mere proof that they or some of them were concerned in
the overt acts alleged would, per se, go a long way to
establish thatthere existed such agreement among them.
It is well known and as observed by this Court in Baburao
B Bajirao Patilv. State of Maharashtra: (SCC p. 433, para
3)
[l]ndeed it is seldom - if ever-that direct evidence
of conspiracies can be forthcoming. Conspiracy of the
present type from its very nature must be conceived
C and hatched in complete secrecy, for otherwise the
whole purpose would fail."
110. The recovery of large quantities of arms and
ammunition from the premises at Khan Road, Khirgaon,
Hazaribagh, a revolver recovered from Appellant Nasir, the
D contents of the e-mail messages and the letter of Aftab to the
wife of Asif after the killing of Asif read along with some of_the
vital statements made by PW-39 in his evidence to the effect
that the untimely death of Asif and his involvement in this
antinational activities were all after his contact with Aftab when
E cumulatively considered, it is revealed that every preparation
was made during the lifetime of Asif which got intensified after
his demise on 08.12.2001 in the encounter at Rajkot which
was masterminded byAppellantAftab with the wholehearted
support of Appellant Nasir by arranging for the stay of the_ other
F accused by securing a premises at Khan Road, Kirgaon,
Hazaribagh by bringing those gang members, namely,
deceased Zahid, deceased Salim, Hassan Imam, Sadakat
· from Agra to Hazaribagh with their heavy luggage which
ultimately transpired to be arms and ammunitions stored in
G the premises of Hazaribagh.
111. From 14.01.2002 the various e-mail messages
transacted between Appellant NasirwithAppellantAftab and
other conspirators which took place up to 29.01.2002 revealed
the loaded mind set with which each one of them were
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 123
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

operating for executing the plans which were originally A
developed by the deceased Asif and Aftab which were
ultimately implemented with m_uch more vehemence and
vengeance by resorting to shooting spree towards the police
force who were posted at the American Centre. In fact, the
messages between 14.01.2002 and 21.01.2002 exchanged B
between Appellant Nasir, Zahid and Aftab disclose the mind
set with which the gang members hatched the conspiracy to
operate and to carry out their mission of attacking the police
force posted at the American Centre. Having regard to the
above overwhelming documentary evidence which was placed c
before the Courts below it will have to be held that the
conclusion ultimately reached by the Courts below based on
the above materials coupled with the oral evidence sufficiently
establish that the Appellants along with the other accused
conspired for waging a war against the State. D
112.Question No. 3: Whether the confession of
Appellant Nasir was recorded in accordance with Section 164
ofCr.P.C.?
As far as the said question is concerned, we have dealt
with the same in detail in the earlier part of our Judgment and E •
have found that PW-97-Magistrate, who recorded the
confession of Appellant Nasir, applied all precautions required
under law before the confession of Appellant Nasir was
recorded. We have also found that the submission made on
behalf of the Appellant Nasir that at the date of recording of F
confession he was in police custody was proved to be not
-correct and that as per the direction of PW-97 himself on
21.02.2002 he was sent to the Presidency Correctional Home
of Calcutta with a specific direction to keep him in segregation
so that he was not mingled with other accused or strangers G
before he was produced on 22.02.2002 at 1 p.m. In fact, we
have noted that Appellant Nasir's answers to questions 1 to
18 recorded in the confession itself, as well as, the last part of.
the confessional statement amply disclose thatAppellant Nasir
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124 SUPREME COURT REPORTS . [2014) 14 S.C.R.

A was conscious of the implications of making a confession and
in spite of that he proceeded to m_ake the confession before
PW-97. Further, we have found that at the time ofrecording of
the confession PW-97 ensured that such recording took place
in his chambers and that except himself and Appellant Nasir
B nobody else was present in the chamber much less any of the
police personnel. Therefore, there was no scope for the
Appellant now to contend that the confession was not recorded
in accordance with law.
113. Before answering this question, we wish to refer to
C some of the decisions relied upon by Ms. Nitya Ramakrishnan
in support of her submissions. Reliance was placed upon a
decision of this Court reported in Navjot Sandhu (Supra) in
particular paragraphs 38 to 40 and 306 and 315. In paragraphs
38 to 40 and paragraph 304 it was held that a confession
D statement cannot be straightaway relied upon and the proper
way to approach is to marshal the evidence against the
accused excluding the confession and the Court may take into
consideration the confession if the other evidence disclose
the offence alleged against the accused. We have dealt with
. E in <letail the confession. of Appellant Nasir, the procedure
. followed by PW-97 while recording the confession apart from
finding out the truthfulness of the statement contained in the
confession, as well as, various other evidence led by the
Prosecution which also supported to a very large extent the
F statement made by Nasir in his confession. Even in paragraph
304 of the said decision the truthfulness of the confession in
that case was not accepted whereas in the case on hand we
have found that the confession is fully acceptable and the details
contained in the confession were all true. We have also dealt
G with the retraction alleged to have been made by Appellant
Nasir in the course of 313 questioning and found that the same
does not in any way cause any hindrance in accepting the
confession. We, therefore, do not find any support for the
Appellant in the reliance placed upon the said decision.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 125
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

114. Reliance was placed upon the decision of this Court A
in Bodhraj@Bodha (supra). Paragraph 16 was referred to,
where the principles to be followed in analyzing a case
dependant upon circumstantial evidence were noted from an
earlier decision of this Court in Hanumant Govind
Nargundkar and another vs. State of Madhya Pradesh - B
• AIR 1952 SC 343. We do not wish to refer to the said decision
in detail, inasmuch as, we find that in the case on hahd it is not
merely dependant upon circumstantial evidence alone. We
have referred to the eye-witness' account which fully
corroborated the confession apart from other circumstances C
relied upon by the Prosecution. We, therefore, do not find any
scope to apply the said decision to the facts of this case ..
115. As far as the decision reported in Haricharan
Kurmi (supra), the said decision is on the implication of
Section 30 of the Evidence Act as regards ·applying the D
confession of an accused as against the offence alleged
against the co-accused. We have dealt with the said legal
aspect extensively before considering the contents of the
confession made by Appellant Nasir for its applicability as
against the co-accusedAppellantAftab. We have also applied E
the principles set down in paragraphs 10 and 11 of the said
decision while holding that in the case on hand, we are fully
fortified in applying the confession made by Appellant Nasir
as againstAppellantAftab based on the independent evidence
which is available in abundance as against Appellant Aftab F
which sufficiently supported the case of the Prosecution.
Therefore, the confession of Appellant Nasir could also be us.ed
while finding Appellant Aftab guilty of the charges levelled
against him.
116. The decision reported in Mohd. Khalid (supra) was G
relied upon for the very same purpose for which Haricharan
Kurmi (supra) was referred to. Therefore, we do not find any
necessity to deal with the said decision in detail.

H
126 SUPREME COURT REPORTS [2014] 14 S,.C.R.

A 117. Reliance was placed upon a recent decision of this ·
Court· reported in Rabindra Kumar Pal @ Dara Singh
(supra). After referring to paragraphs 41 to 50 the learned
counsel for the Appellant took us through the principles laid
down in paragraph 64 and submitted.that paragraph 64(iii),
B (v), (viii) and (ix) gets attracted to the case on hand. Applying
the principles stated in the said sub-paragraphs, we do not
find any scope to reject the confession of Appellant Nasir. We
have found that every one of the principles laid down therein
has been sufficiently taken care of by the learned Magistrate/
c PW-97 while recording the confession of Appellant Nasir. By
applying the twin test, namely; the voluntariness in making the
confession and its truthfulness, we are convinced that the
reference to the said paragraph 64 and sub~paragraphs (iii),
(v), (viii) and (ix) does not in any way affect the case of the
D Prosecution. As far a& identification of the Appellants, as well
as, the photographs of deceased Zahid and Salim and the
other mater.ial objects, such as, Maruti 800 car, Suzuki
Motorbike, the Chocolate and Green colour jackets worn by
the assailants, we find that there was no lacunae in the evidence
E of those Witnesses who identified the accused as well as the
mate.rial objects. We find that it has been made clear that
identification of accused persons by Witnesses in the dock
forthe first time, though permissible cannot b,!'! given credence
without further corroborative evidence. What has been stated'
F is that the dock identification alone cannot be treated as
substantial evidence though it is permissible. In the ~ase on
hand, the PW-62 who was not known to the accused was able
to. identify Appellant Nasir in a TIP Parade which was
conducted in the Month of March, 2002, i.e. within a period of
G about 2Y, months after the incident. Therefore, when the said
witness was able to identify Appellant Nasir there is no scope
to doubt such identification. Further, the identification of the
photograph of the assailant Zahid and the jacket worn by him
as identified by PW-62 as well as the other eye-witnesses
H cannot be rejected, as no serious deficiency in thei~

-.. ~
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL· · 127
[FAKKIR MOHA~ED IBRAHIM KALIFULLA, J.]

identification could be noted by us.in this case. Therefore, the A
said decision also does not support the case of the Appellants. ·
It is to be remembered that identity of Appellants Nasir and
Aftab was made by PW-39, brother of Asif, whose
identification was not questionable on any account.
118. Even the so-called retraction was riot by way ofa B
specific pleading made on behalf of Appellant Nasir. It was
sought to be demonstrated that in the Section 313 Cr.P.C
. questioning, Appellant Nasir denied to have made any
confession in the presence of PW-97 and, therefore, that would
amount to a retraction. In fact, while referring to those questions C
and the answers made by Appellant Nasir, we have recorded
our finding and that the same did not in any way affect the
genuineness of the confession made by Appellant Nasit
Further, the manner in which.the confessional statement.was
made starting from the days when Appellant Nasir developed D
his friendship with deceased Asif in the school days, their ·
subsequent reunion jn the year 1999 and the ultimate execution
of the horrendous attack on the police force at the American
Centre in which as many as five police personnel died and 13
number of police personnel suffered gun shot injuries along E
· with civilians, which narration could not have been prepared
by the Prosecution agency with so many details pertaining to
men and material and the sequence with which it was
disclosed. The narration so made in the confession by
Appellant Nasir was natural and cogent and, therefore, that F
also establish that the confession of Appellant Nasir was not
only recorded in accordance with Section 164 Cr.P.C. but
deserves to be given due consideration while appreciating
the evidence relied upon by the Prosecution. We, therefore,
hold that the confession of Appellant Nasir was recorded in G
accordancewith Section 164 Cr.P.C. ·
119. Question No. 4:As to what extent the contents of
the confession can be used by the Prosecution? While dealing
with the said question we feel that Question No. 5 can also
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128 SUPREME COURT REPORTS [2014] 14 S.C.R.

A be simultaneously dealt with, namely, whether there was any
· contradiction in the evidence both oral as well as documentary
vis-a-vis the confession made by the Appellant Nasir?
We find that the above two questions are interrelated
and, therefore, a combi'ned consideration can be made. As
B has been stated by us earlier, the confession of Appellant Nasir
having been recorded in accordance with law and since it
yontains facts and figures disclosing reflection of what really
transpired in relation to the transaction indulged by the
Appellant, namely, the crimes in which they were involved as a
C gang by conspiring together with the evil mi rid set guided by
the foreign nationals, namely, deceased Zahid and Salim who
were all Pakistanis along with some terrorist organisation
namely, Salahuddin, leader of Hizbul MuZahideen and
Kashmiri militant by name Dr. Mushtaq Ahmad and one
· D Abdullah. It is imperative that we must find out as to the extent
to which the contents of the confession could be used by the
Prosecution and whether such confession is corroborated by
other materials in order to state that there was no contradiction
in the evidence both oral as well as documentary when
E compared with the confession made by Appellant Nasir.
•
120. When we examine the said aspect, we find that the
following were the relevant details which can be culled out from
the confession of Appellant Nasir.
I .
·
i)Nasir met Asif after his school days in the year 1999
F when Asif was released from Tihar Jail. Before his
meeting Nasir used to work in le;:ither import-export
company as a helper/checker getting a salary of Rs. 700/
- per month. Asif offered him a monthly remuneration of
Rs.2000/- per month f?r his continued assistance.
G ii) Asifrevealed about his close friendship with Appellant
Aftab who was residing at Banaras. The confession of
Appellant Nasir as well as Shakir Akhtar confirms the ·
same.

H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 129
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

iii) In January, 2001 Niaz Hussain was introduced by Asif A
to Appellant Nasir and asked Appellant Nasir to look for ·
a flat of 600 to 800 square feet in ground floor in No. 1,
Tiljala Lane. Nasir who was also residing at No. 46, Tiljala
Lane arranged for a ground floor flat at No.1, Tiljala Lane
for a consideration of Rs.2,66,000/- which was duly B
executed by the owners of No.1, Tiljala Lane, with the
help of the promoter PW-47 Dilip Singh in July, 2001
when the flat was handed over to Niaz Hussain under
Exhibit 63 dated 11.07.2001.
iv) Asif while meeting with other members including C
Appellant N.asir suggested that they should kidnap big
businessmen in various cities. to make money and so
that they would be able to collect required arms and
ammunition to carry out their mission. In fact, Asif was
arrested in connection with the kidnapping of one · D
Khadim and was interrogated and arrested by police and
taken to Rajkot, Gujarat where he was killed in an
encounter.
v) In May, 2001 as per Asif's direction Appellant Nasir
went to Agra and met one Asad Khan who is also a E ·
member of Asif's gang and collected a sum of Rs.1 lakh
from him.
vi) In August, 2001 as per the instruction of Asif and with
his assistance e-mail account was opened for Appellant
Nasir in a Cyber Cafe and the e-mail accounts were a) F
basket4my@hotmail.com with. the password
'7days13harj'. The address of the second e-mail was
z4zipzap@hotmail.com with the password
'1 OOdinsonarka'.
vii) Again in August, 2001 as directed ·by Asif's e-mail G
Appellant Nasir went to Banaras. At Banaras he met
Asif's close friend Aftab Ansari who was introduced to
him. With the help of Appellant Nasir, Appellant Aftab
got a fake passport under the name Farhan Mullick
through Asif in the passport office of Bihar. H
130 SUPREME COURT REPORTS · [2014] 14 S.C.R.

A viii) As per Asifs instructions, Nasir went to the flat at
Khan Road, Khirgaon, Hazaribagh which flat was
· arranged by Appellant Ni;isir as per instructions .of Asif
for the hideout of Asif's gang members. The tenancy
agreemerit of the said premises were established.
B ix) In October-Novemb.er 2001 AppellantAftab sent series
· of e-mails through his name or under the name Karan,
Amaan, Abdul, etc. to Nasir and other gang members.
x) In October, 2001 at Agra, Asif introduced Zahid, Salim
and Sadakat. Zahid and Salim were Pakistanis while
c Sadakat was from Uttar Pradesh. They were all brought
to Hazaribagh in two cars Maruti 800 and Maruti Zen .
. The cars were all parked in the. premises at Khan Road,
Hazadbagh which were later seized by police.
xi) In October, 2001, Appellant Nasir bought two cottas •
D of land in Hazaribagh for Rs.50,000/-which was funded
byAsif. . ,
xii) There was an e-mail 'from AppellantAftab informing
about the detention of Asif in the Khadim Kidnapping
E. case in November, 2001.
xiii) As per Appellant Aftab's e-mail, Nasir went to
Jaisalmer and Darmar to fetch 15 kgs of Atta-ROX.
However, it was not purchased and Nasir returned back
to Calcutta· in the first week of December. The travel by
F Nasir was supported by documents.
xiv)AppellantAftab sente-niail informing about the killing'
of Asif in an encounter by Gujarat Police and his body
being flown to Calcutta. PW-39 also supported the said
message of AppellantAftab.
G xv) Conspiracy was hatched at Appellant Nasir's flat at
Khirgaon along with deceased Zahid, Sadakat,
deceased Salim and Imam Hussain to take revenge for
Asif's death which meeting took place as per· the
ins~ruction/guidance of Appellant Aftab. In the said
H meeting they conspired to blow off government buildings
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 131
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

and to kill police force to show the strength of 'Jehadis'. A
They also waited for the order of Bhaisaheb, namely,
AppellantAftab.
xvi) Deceased Zahid and accused Sadakat came to
No.1, Tiljala Lane on 14'h and 15'h January, 2002
respectively carrying a large leather bag containing B
things which later came to be revealed as arms and
ammunitions.
xvii) Appellant Aftab sent an e-mail directing the gang
members to blow off Bhavani Bhawan where Asif was
kept for interrogation. This decision was however, C
opposed by Nasir stating that innocent people would be
killed apart from the fact that the Minority Commission
office was also located in the same building. When this
view of Appellant Nasir was forwarded by Zahid to
AppellantAftab, an alternate suggestion was made by D
him to attack any American base and kill the policemen.
xviii) On 19.01.2002 at about4-4.30 p.m.Appellant Nasir.
aloi:ig with Zahid, Sadakat, Abdullah made a survey of
the American Embassy and the American centre and
found that American Centre would be more convenient E
as police security people were sitting in open and were
not alert.
xix) Another survey was made on 20'h and 21st of the
American Centre to work out the details of attack to be F
made.
xx) On 21st evening after returning from survey, deceased
Zahid chalked out the programme. Zahid was to-drive
the motorcycle while Sadakat was to shoot at the police
force. Nasir was directed to take Maruti 800 and park it G
in a place where the assailants atAmerican Centre could
join after carrying out their assignment.
xxi) On 22.01.2002, all the gang members got up by 5
a.m., got ready while Zahid wore a chocolate (brown)
colour jacket arming himself with pistol, Sadakat wore a H
132 SUPREME COURT REPORTS [2014] 14 S.C.R.

A green colour jacket and took an AK-47 rifle in a cricket
bat cover. Zahid drove the motorbike and Sadakat was
sitting in the pillion with theAK-47 rifle, The jackets were
alter recovered and exhibited
xxii)At 6.30 a.m. on 22.01.2002, Nasir along with Abdullah
B parked Maruti 800 car bearing Registration No. BRK
4907 at Rippon Street Circular Road Crossing and·
around 6.45 a.m. Zahid and Sadakat came there in the
motorbike announcing that 'Kaam ho gaya' meaning
thereby 'job was done'. Thereafter, Sadakat got into the
c rear side of the car and both the car and the bike
proceeded to No.1, Tiljala Lane. On the way Sadakat
narrated the details about the attack. After reaching No.1,
Tiljala Lane, Sadakat left Calcutta handing over the rifle
AK-47 to Zahid. Maruti car bearing registration No.BRK
D 4907 and Motor bike bearing registration No.WB-01-
P2144 were recovered from No.1, Tiljala Lane·
xxiii) On 23.01.2002 Zahid also left Calcutta and took
the AK-47 rifle along with him. Appellant Nasir went to
his in-laws place.
E xxiv) On 26. 01.2002 Appellant Nasir went to Khan Road,
Khirgaon, Hazaribagh were Zahid, Salim and Sadakat
were also present and they all celebrated their success.
Thereafter, Nasir returned to Calcutta.
xxi) On 29.01.2002, Appellant Nasir informed Appellant
F
Aftab through e-mail about the encounter killing of Zahid
and Salim through his e-mail address
b4babu@hotmail.com. On the same day Nasir was
, arrested by police at his in-laws place thereafter Nasir
took the police to No.1 Tiljala Lane where search and
G seizure took place.
xxvi) From No.1, Tiljala Lane police went to 46, Tiljala
Lane the residence of Nasir where also police seized
documents including a pocket notebook a sketch map
of American Centre and national flat of Pakistan given to
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 133
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Nasir by Zahid. A revolver given to Nasir by Zahid was A
also recovered. All the recoveries both at No.1, Tiljala
and No.46, Tiljala Lane were made based on the
admissible portion of the statement of Appellant Nasir.
xxvii) Appellant Nasir gave reasons as to why he came
forward to make the confession namely B
a) to relive his conscience
b) he felt that he had committed a sin,
c) according to him he was earlier afraid of Aftab and
nowAftab has been apprehended on 13.3.2002, c
he was free from the clutches of Aftab
d) he stated that he did not want to be a traitor against
his own country.
e) all whatever he did earlier' was under total
misapprehension D
'f) now that there is no escape route for him.
121. From what has been noted above, we find that there
was no contradiction to any of the statement of Appellant Nasir
in his confession but has fully corroborated those facts and
events In the form of oral and documentary evidence. Therefore, E
the Prosecution was fully justified in relying upon the confession
while resting its case on the other evidences.
122. Question No. 6: Whether the confession of
Appellant Nasir can be relied upon as againstAppellantAftab? F
The submission made on behalf of the Appellant was
two-fold. In the first place, it was contended that a confession
made.by'an accused is not substantive evidence as against
co-accused falling under Section 30 of the Evidence Act. When
we consider the said question, the legal position under the G
provisions of the Evidence Act requires to be noted. Sections
1o· and 30 of the Evidence Act are relevant, which are as under:
"10,Things said or done by conspirator in reference
to common design.-Where there is reasonable ground
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134 SUPREME COURT REPORTS (2014] 14 S.C.R.

A to believe that two or more persons have conspired
together to commit an offence or an actionable wrong,.
anything said, done or written by any one of such persons
in reference to their common intention, after the time when
such intention was first entertained by any one of them,
B is a relevant fact as against each of the persons believed
to be so conspiring, as well for the purpose of proving
the existence of the conspiracy as for the purpose of
showing that any such person was a party to it.
30. Consideration of proved confession affecting
C person making it and others jointly under-Trial for
same offence.-When more persons than one are being
tried jointly for the same offence, and a confession made
.by one of such persons affecting himself and some other
of such persons is proved, the Court may take into
D consideration such confession as against such other
person as well as against the person who makes such
confession."
123. Going by the above provisions; the relevance,
efficacy and reliability of the confessional statement of
E Appellant Nasir when examined in the touchstone of Sections
10 and 30 of the Evidence Act, it will have to be stated that the
confession of a co-accused cannot be treated as substantive
evidence to convict other ttian the person who made the
confession on the evidentiary value of it. It is, however, well
F established and reiterated in several decisions of this Court
that based on the consideration of other evidence on record
and if such evidence sufficiently supports the case of the
Prosecution and if it requires further support, the confession
of a co-accused can be pressed into service and reliance can
G be placed upon it. In other words· if there are sufficient materials
to reasonably believe that there was concert and connection
between the persons charged with a commission of an offence
based on a conspiracy, it is immaterial even if they were
strangers to each other and were ignorant of the actual role
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 135
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

played by them of such acts which they committed by joint effort. A
Going by Section 30 of the Evidence Act, when more than one
person are being tried jointly for. the same offence and a
confession made by one of such persons is found to affect the
maker as well as the co-accused and its stand sufficiently
proved, the Court can take into consideration such confession B
as against other persons and also against the person who
made sucli confession from the above proposition, we can
make reference to the decisions of this Court in the. case of
Natwarlal Shankarlal Modi vs. State of Bombay - (1961)
B.L.R. 661 and The Govt. of NCT of Delhi vs. Jaspal Singh . c
- (2003) 5 sec 589.
124. Having noted the above legal principles relating to
the application of confession made by an accused as against
the co-accused, we wish to first consider and find out whether
there is enough evidence independent of t~e confession of D
the ~ppellant Nasir in respect of the charge levelled against
Appellant Aftab. In sum and substance the charges are
. conspiracy, common intention which resulted in serious charges
falling under Sections 121, 121A, 122 as well as Sections 302,
307, etc. of IPC. Keeping the confession of Appellant Nasir E
aside, when we examine the evidence available on record,
we find that the evidence of PW-39 proves thatAppellantAftab
was a close friend of Asif, that according to PW-39 after Asif's
contact with Aftab the life of Asif was ruined which ultimately
resulted in his death. The documentary evidence namely, the F
sale agreemen_t dated 11.07.2001 pertaining to ground floor
flat at No.1, Tiljala Lane confirmed the factum of Asif having
arranged for getting the flat for the absconding accused Niaz
Hussain under the pretext of starting a leather business. The
evidence of PW-39 again discloses that Asif and Appellant G
Nasir were childhood friends and they were associated
together after 1999 when Asif was released from Tihar Jail.
The opening of the e-mail account in the name of Appellant
Nasir in the cyber cafe at the instance of Asif through which
H
136 SUPREME COURT REPORTS [2014] 14 S.C.R.

A messages were exchanged between Nasir andAppellantAftab
is a matter of record rig ht from 2001, that too prior to the
demise of Asif. It is the not case of.anyone thatAppellant Nasir
knew AppellantAftab on his own. Nasir was directed by Asif to
go to Banaras where Nasir was introduced toAftab by Asif as
B his close friend for which the hotel records were produced which
was not disputed before us. Even prior to that Asif made use
of Nasir to get a fake passportforAftab in different riame called
'Farhan Mullick'.
125. Similarly, when Nasir was summoned by Appellant
C Aftab to go to Jaipur for the purpose of getting a consignment
of Atta-ROX the relevant air travel document supported the
said fact apart from e-mail messages. The letter of Aftab
addressed to the wife of Asif has been proved with the help of
handwriting expert. There is no scope to dispute the existence
D of that letter and about the author of the said letter, namely,
Aftab. Based on the admissible part of the statement of the
AppellantAftab the bedroom of Asif was searched where the
letter and the diary maintained by Asif was recovered. Thee~
mail message sent by Aftab about the death of Asif in an
E encounter on 08.12.2001, also confirmed their joint operation
during the lifetime of Asif as well as subsequently. Subsequent
to Aftab's letter to Asif's wife, a serious development took
place. Even before that the flat at Khan Road, Khirgaon
Hazaribagh, arranged by Appellant Nasir was proved by the
F evidence of its owner. The rental receipts signed by Appellant
Nasir on some occasions and by the deceased Zahid on some
other occasions also proved the tenancy secured in respect
of the said premises at Hazaribagh. The parking of Maruti
800 and Maruti Zen in which Zahid, Salim, Sadakat and Imam
G Hasan who were lodged in the Hazaribagh flat was also spoken ·
to by the landlord of the said building. The meeting of Zahid,
Salim Sadakat and Appellant Nasir in the premises at No.1,
Tiljala Lane as from 14.01.2002 was supported by e-mail
messages exchanged between Nasir and Zahid on the one
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 137
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

side an~ Aftab on the other. The contents of those messages A
disclose the exact manner in which the accused planned to ·
execute their mission of taking a revenge on the police. The
specific message of Aftab directing that Zahid, Nasir, Salim
and Sadakat should launch an attack on Bhavani Bhawan further
reinforced the case of the Prosecution about the full involvement B
of Aftab in the transaction. The reply message sent to Aftab
wherein the objection raised by Nasir as to why the attack
should not be made on Bhavani Bhawan and the further reply
fromAftab through e-mail that in that event they can look for an
American Base and pursuant to which Zahid, Salim, Sadakat c
and Nasir visited both American Embassy as well as American
Centre and thereafter, sent a further message to Aftab that the
American centre would be the more fitting place to carry out
their mission and the green signal given by.Aftab again by
way of an e-mail were all factors which independently D
established the full fledged role played by AppellantAftab in
the whole transaction which ultimately resulted in the hazardous
attack on the police force posted at the American Centre. When
such overwhelm!ng evidence independent of confession of
Appellant Nasir is on record we are convinced that the E
confession of Appellant Nasir can be fully applied and thereby,
the involvement ofAftab·in the criminal conspiracy and the
following insurrection on the police force at the American
Centre stands fully e,stablished and accordingly we answer the
said question to the effect that the confession of Appellant Nasir F
can be relied on as againstAppellantAftab.
126. Question No. 7: Whether there was sufficient
corroboration of the contents of the confession of Appellant
Nasir with the other evidence i.e. oral, documentary and
material objects relied upon by the Prosecution ? G
The substantive part of the confession of ,A.ppellant Nasir
can be formulated into the following segments and while listing
out those different segments the corroborative materials in the ·
other evidence can also be noted which can be gathered from
the following details: H
138 SUPREME COURT REPORTS [2014] 14 S.C.R.

A a) Nasir met Asif again in 1999 after he was released .
from Tihar Jail. Nasir who used to work in the leather
export-import company as a helper/checker, used to
get Rs.700/- and later he started getting Rs.2,000/-
fromAsif.
8 PW-39 who is the brother of deceased Asif has
confirmed the fact that Asif was in Calcutta from 1999
after his release from Tihar jail. PW-46 who was co-
accused with Asif in the same case and was
undergoing sentence in Tihar jail with him has
c confirmed thatthe sentence got over in 1999: PW-39
has also confirmed that Asif and Nasir were class-
fellows in school and also stated that he knew aboul
Nasir's family members. PW-47 and PW-48 have both
confirmed that they have seen Nasir in the company
.o of Asif in No.1, ·Tiljala Lane, Calcutta. Both have ·
identified the photo of Asif as Exhibit~LXXIV.
b) Asif revealed about his close friendship with Appellant
Aftab Ansari, resident of Banaras.
P.W.-46's statement again confirmed that Asif
E considered Aftab as his friend from Benaras and
introduced him to Aftab at Tihar jail. Statement given
by Shakir Akhtar also stated that Aftab Ansai"i was
introduced by Asif as his friend from Benaras. Nasir's
trip to Banaras to meetAftab at the instance of Asif
F was also established. The passport secured in the
name of Farhan Mullick for Aftab with the help of Asif
and Nasir was also proved.
c) In January, 2001, Niaz Hussain was introduced by Asif
to Nasir. Nasir was asked by Asif to look for a flat for
G him of 600/800 sq space on the ground floor. At the
instance of Asif, Nasir arranged for a ground floor flat:
No. 1, Tiljala Lane, Calcutta for one Niaz Hussain. He
paid Rs.2,66,000/-to Dilip Singh, PW-47 in April 2001
the flat was handed over to Niaz.
H

- ...
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 139
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Evidence of P.W.s 4 7 and 48 has confirmed the above. A
PW-47 has stated that he executed an agreement
under Exhibits-63/1, 63/2, 63/3, 63/4 and 63/5 with
Niaz Hussain and handed over the possession on 11 111
July, 2001. The witness to the said agreement is
Appellant Nasir himself and PW-48 who resided in B
the 1st floor of the said building.
d) Asif suggested kidnapping of big businessmen in
various cities to make money and for that purpose to
gather arms and ammunition. In May 2001, a,s per
Asifs directions Nasir went to Agra and met one Asad C
Khan who is also a member of Asif's gang. He
collected Rs.1 lakh from Asad Khan.
Asad Khan and Aftab Ansari were both wanted under
P.S. Case no. 232/2001. Asifs detention in connection
with the kidnapping of Khadim was proved. D
Subsequently, Asif stated to have died in an encounter
by Rajkot police.
· e) In August, 2001 atthe instance of Asif e-mail account
was opened in a cyber cafe: First e-mail
basketball4my@hotmail.com, password:7days13harj, E
second e-mail: z4zipzap@hotmail.com, password:
1OOdinsonarka. '
Both PW-68 and PW-104 were involved in the
retrieving of the e-mails which were sent and received
by Nasir. Nasir confessed about the e-mail ids and
i=
their respective passwords involved. Through
investigation from a cyber cafe in Kustia, Calcutta,
owned by one PW- 67, five computers were seized
who also signed the Exhibit-104/1 for the printouts of G
the e-mails sent/received by Nasir. PW-68 is a sub-
inspector who took the printouts of the e-mails. Exhibit-
104/2. Later PW-104 also retrieved 15 printouts of e-
mails as per the direction of PW-123.

H
140 SUPREME COURT REPORTS (2014] 14 S:C.R.

A f)ln August 2001 as per Asif's e-mail Nasir went to
Banaras. At Banaras, second Appellant Aftab was
.introduced to Nasir. Based on Nasir's acquaintance,
Asif got a fake passport made under the name Farhan
Mullick in Bihar Passport office which was to be used
B byAftab.
PW-111 is attached with Bihar Police who has seized
the passport of Farhan Mullick and identifiedAftab in
Court as Farhan Mullick. ·
g) As per Asif's instructions Nasir went secured a flat in
c Khan Road, Khirgaon and the said the premises was
used by Asif's gang members as a hideout.
PW-106 is the owner who rented out the flat to Nasir
confirmed that he was residing there. And in the cross-
examination, he stated that he has met Sadakat and
D Zahid and they were introduced as staff members of
Nasir by one Hasan Imam. That time Nasir was not
present. Subsequently, on 27-28.01.2002, in the
encounter at Khan Road flat, Zahid and Salim were
nabbed as stated by PW-113.
E
h) In October-November 2001, second AppellantAftab
started sending his e"mails through his name or under
the name 'Karan', 'Aman', 'Abdul' etc.
· i)ln October 2001 at Agra, Asif introduced Zahid, Salim
F and Sadakat. He said Zahid and Salim were from
Pakistan and Sadakat was from UP. All of them
proceeded to Hazaribagh in two cars- Maruti 800 and ·
MaruitZen.
PW-106 has confirmed in cross-examination.that he
G saw one Maruti car and one Maruti Zen parked outside
the flat. Later incident of encounter and nabbing of
Zahid and Salim in January, 2002 and confirmed the
said fact.

H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 141
(FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

j) In October 2001 Nasir bought two cottahs of land from A
Hazaribagh for Rs.50,000/-. Asif gave him the money.
PW-73 has deposed that she was the seller of the
said 2 cottahs land and Nasir was the buyer during
the said time period. She has also recognized the
Appellant in the.Court. B
k) E-mail from Aftab was sent informing about the
detention of Asif in the first week of November 2001.
---
That very email retrieval vouchsafe the said fact.
I) As per Aftab's e-mail, Nasir went to Jaisalmer, Darmar· ··C _
to fetch -15 kg. of Atta/ROX. Atta-ROX was not ·
purchased. Nasir returned back to Calcutta in first
week of December. ·
PW~105 was the Handwriting expert of documents~
He exa,mined the Entries in the registration book of
0
Hotel Golden City, Jaisalmer which had Nasir's entry
Exhibit-LLXXXlll/2. The airtick~t registration of Nasir's
return trip to Calcutta was also proved.
m) Aftab sent e-mail informing about the ~illing of Asif in
an .encouriter by Gujarat police and his body being E .
flown to Calcutta Miaz also gave this message through
e-mail: b4babu@hotmail.com and
' · behzad50@hotmail.com
Exhibit-46/1, the letter sent by Aftab to Asif's wife
confirmed the said fact apart from the retrieval of the F.
email messages.
n) Conspiracy was hatched at Nasir's Khan Road,
Khirgaon tenanted flat along with Zahid, Sadakat,
Salim and Imam Hussain to take a revenge of Asif's
death. They planned to blow off government buildings G
and to kill corps to show the strength of 'Jehadis'. They
all waited for Bhaisaheb, Aftab's order. Zahid and
Sadakat came to No.1, Tiljala Lane, ealcutta on 14-
15 January, 2002. They brought a large leather bag
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142 SUPREME COURT-REPORTS [2014) 14 S.C.R.

A with them. A mail was sent by Aftab to blow off Bhavani
Bhawan where Asif was kept for interrogation. This
decision was opposed by Nasir as innocent people
would be killed· and the office of the Minority
Commission was also there. This view was forwarded
B by Zahid toAftab. An alternate plan was suggested-by
Aftab to attack any American base and to kill
_policemen.
o) All the above facts were also proved by the retrieved
email messages transacted between Nasir, Zahid on
C the one .side and Aftab ori the other side. On
19.01.2002 at about 4-4.30 p.m. Nasir along with
Zahid, Sadakat and Abdullah made a survey of the
American Embassy and the American Centre. They
found the American Centre more convenient as the
D police security people appeared slack in their duties.
PW-47 saw them leaving the building at around same
time. . . . _
p)Anothersurveywas made by them on 2o•h and 21 51
January, 2002 of the 'American Centre to note the
E features. Both PWs-47 and 48 saw them leaving the
building at around Same time. I

q) On 21 ''January evening after retiring from s,urvey
· Zahid chalked out the programme. Zahid was to drive ·
the motorcycle, Sadakat was to shoot and Nasir was
F to drive the Maruti 800. PW-48 saw Nasir arid Abdullah
·in the Maruti 800 Car and Zahid and Sadakat to be _
- on the Motorcycle.·· .,~.
r) On 22.01.2002 everybody woke up at 5 a.m. and
got ready. Zahid wore a chocolate colour jacket and
G armed himself with 'pistol. · Sadakat wore a green
colour jacket and took an AK-47 rifle in a cricket bat
cover. Zahid drove th,e vehicle and Sadakat as a pillion
rider with theAK-47 rifle.
PW-48 saw them and is .also the seizure list witness
H who saw the cricket bat cover.
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 143
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

On 22.01.2002 Nasir along with Abdullah parked A
Maruti 800 BRK 4907 at Rippon Street Circular Road
Crossing in the early morning.Around 6.45 a.m. Zahid
and Sadakat came to the place where Nasir parked
the car answering that 'job done'. Sadakat got into
the car and the bike went to No.1 Tiljala Lane. Zahid B
followed. On the way Sadakat narrated the details
about the attack. PW-62 also confirmed the same
gathering at around same time. PW-62 also noticed
the presence of Nasir along with Maruti 800 parked
at Rippon Street and a little later the joining of Zahid c
.and Sadakat in the black colour motor bike. PW-62
identified Nasir in TIP and the photo of Zahid Exhibit
XXVI.
s) Then Sadakat left Calcutta. AK-47 was handed over
to Zahid. On 23.01.2002, Zahid also left Calcutta and D
· tookAK-47 and the pistol along with him. Nasir booked
Sadakat's ticket in Chambal Express. Thereafter,
Nasir went to his in-laws' place.
One Reservation/C~ncellation of Chambai Express
1159 Uttar Pradesh of same date in Sadakat's name E
was found from Howrah Reservation Supervisor in
Exhibit-14.
t) On 26.01.2002 Nasir went to Khan Road, Khirgaon,
Hazaribagh where Zahid, Salim and Sadakat.were
there. They celebrated their success. Nasir returned F
to Calcutta.
Their stay can be confirmed as after two days later
·
.
the encounter at Haziribagh took place where Salim
and Zahid died as spoken to by PW-113. ·
G
u) On 29.01.2002, Nasir informed Aftab Ansari through
an e-mail about the encounter killing of Zahid and
Salim. E-mail address: b4babu@hotmail.com. On
29.01.2002 police arrested Nasir at his in-laws' place.
H
144 SUPREME COURT REPORTS [2014] 14 S.C.R.

A Nasir took the police to No.1, Tiljala Lane, a search
and seizure took place.
From No.1 Tiljala lane Nasir took the police to his flat
at No, 46, Tiljala Lane. Police seized some documents
including a pocket notebook, a sketch map of
B American Centre and a National Flag of Pakistan
which Zahid left. A revolver given to Nasir by Zahid
was also seized.
PW-48 was a seizure witness to the entire procedure.
127. Herjrt)ef~answering the question, we wish to deal
C with the decision
. relied
' .upon by. the learned counsel for
Appellant Reliance was placed upon the decision reported in
Kehar Singh (supra). Particular reference was made to
paragraph 269 of the Judgment, which reads as under:
"269. In the document, there is no reference to killing of
D
the Prime Minister. In fact, exceptfor a "feltlike killing" in
early June as a~. immediate reaction to. the "Bluestar
Operation", even the manifestation of this feeling does
not exist anywhere in subsequent part of the document.
The documentrefers to bare meetings, visits of persons,
E
or visiting somebody's-house. It is, however, not possible
to ffnd 'out to whorri the document was intended to be
used.'" . .
128. Referring to the above passage Ms. Nitya
F Rarriakrishnan contended that even assuming AppellantAftab
was the author of Exhibit-46/1, 'it does not reflect anything which
can be stated to have supported the case of Prosecution of
. waging of war against the State or any other serious offence
to be committed and therefore, the said exhibit cannot form
G the basis for finding Appellant Aftab guilty of the offences
alleged against him. In paragraph 269, after referring to the
•
document, which was authored by the accused in that case,
·this Court found that the only set of expressions which attracted
'
· · the Court's attention was 'felt like killing' and nothing else could
be found in the said document in order to find the accused
H
MD. JAMI LU DIN NASIR v. STATE OFWEST BENGAL 14~
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

guilty ·of charge of murder. As far as Exhibit-46/1, which ha.s A
been found to have been written by AppellantAftab, as per
expert witness, we find that apart from expressing his anguish
over the untimely demise of his close friend Asif in an·encounter
which according to him was a fake one, he while consoling the
wife of Asif expressed his reaction to such an extent stating B
that appropriate .measures would be taken for a revenge.
Therefore, Exhibit-46/1 is not a simple letter expressing
condolence to the wife of Asif. It goes one step further and
.. -··
states that necessary steps would be taken for a revenge. In
· other words, the tone and tenor of the letter spoke for itself c
reflecting the adverse mindset of Appellant Aftab and his
craving for taking revenge on the police. Therefore, the reliance
placed upon the said paragraph is of no assistance to the
l.\ppellant. .
129. Reliance was also placed upon the decision D
reported in the Rajiv Gandhi murder case in Nalini (supra).
The proposition relied upon is found in par'?graph 607 which
reads as under;
· "607. We have carefully gone through the evidence
·against Vijayan (A-12), Selvaluxmi (A-13) and Bhaskaran E
(A-14) and the submissions of the Prosecution as to how
they are members of the conspiracy with the object to kill
Rajiv Gandhi. The evidence at the most merely shows
that they associated with Sivarasan. The evidence that
•
they had knowledge of the conspiracy is lacking. Their F
knowledge about the murder of Rajiv Gandhi by
Sivarasan. Sub a and Dhanu was acquired by them only
after Rajiv Gandhi was killed. As we have repeatedly said
. in any case mere knowledge of the existence of
. conspiracy is not enough. Or.ie has to agree to the object G
of conspiracy to be guilty of the offence under Section ·
120-A I PC. Vijayan (A-12) would not know the nature of
the messages which were transmitted or received from
the wireless set installed in his house as all these were
H
146 SUPREME COURT REPORTS [2014] 14 S.C,R.

A in coded language. Two code-sheets were given by
Murugan (A-3) to Padma (A-21) to be kept in safe
custody. Vijayan (A-12), Selvaluxmi (A-13) and
Bhaskaran (A-14) have been charged for offence under
Section 3(3) of TADA and have been jointly charged for
offence under Section 3(4) TADA but these charges must
fail and they are acquitted of these charges. Then Vijayan
(A~12), Selvaluxmi (A-13) and Bhaskaran (A-14) are
charged foran offence under Section 212 IPC for having
harboured Sivarasan, Suba and Nero in order to screen
c them. from legal punishment knowing that they had
committed murder of Raj iv Gandhi and others. They all
have been convicted and sentenced. Vijayan (A-12) and ..
Selvaluxmi (A-13) are also charged for offence under
Section 6(1-A) of Wireless Telegraphy Act, 1933 for
D having unauthorised possession of unlicensed wireless
transmitter used for transmitting messages by Sivarasan
and Nero using code-sheets for such transmissions to
other conspirators residing in· Sri Lanka, namely,
absconding accused Prabhakaran and Pottu Omman
E and they have been convicted and sentenced for this
offence. Though in our view Vijayan (A-12) and
Bhaskaran (A-14) have been rightly convicted and
sentenced under these charges but these charges cannot
stand against Selvaluxmi (A-13). All members of the
F . household cannot be charged like this without more. A-
13, being the wife of A-12, was living with her husband
A-12 and merely on that account knowledge and intention
. cannot be attributed to her, particularly when no overt act
is alleged against her. She is acquitted of all these
charges and her conviction and sentence set aside.
G.
Shanmugavadiv~lu (A-15)"
130. The learned counsel, therefore, contended that in
order for an accused to be a member of the conspiracy, it must
be shown that there was enough evidence, that they also had
H knowledge of the conspiracy and if that was lacking, mere
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 147
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J,]

knowledge of existence of the conspiracy was not enough. In A
other words, the accused who is alleged to have involved in
the conspiracy should also know the object of the conspiracy,
not merely that there was a conspiracy. Even if we apply the
said principles to the case on hafld, we have dealtwith in extent
so as to how apart from earlier meetings of the Appellants B
along with Asif and others prior to the demise of Asif, as from
14-15.01.2002 onwards, the participation of Appellants ih the
conspiracy was intense and every minute details.of the act to
be performed on 22.01.2002 was deliber_?ted upon
threadbare before its execution. Therefore, the deceased C
Zahid, deceased Salim, Sadakat, Imam Hussain Appellants
Nasir, Aftab and others, participated in the conspiracy, were
fully aware of what they were conspiring and the object of such
conspiracy and the ultimate execution. Therefore, the said
passage fully supports the case of the P~osecution rather than D
the Appellants.
131. Reliance was then placed on Bhagwan Singh
(supra) in particular paragraphs 13 and 14. It related to the
extent to which the handwriting expert's opinion can be relied
upon. In fact in paragraph 13 of the said Judgment the E
contention was that the Prosecution fabricated evidence and
with that preface the submission was made. However, while
consideration the submission in the middle of the said
paragraph this Court has expressed the view as under:
"Jn our view, however, reliance on Magan is rather F
misplaced in the contractual facts since no conviction is
based on the opinion of the handwriting exper:t but
admittedly it can be relied upon when supported by other
items of internal and external evidence. The handwriting
expert's opinion simply corroborates the circumstantial ·G
evidence and as such we are unable to record our
occurrence with the submissions of Mr. Singh on this
score."
· 132. Having noted the above passage in the said
Judgment, we have to point out that that was a case which H
148 SUPREME COURT REPORTS [2014] 14 S.C.R.

A solely depended upon circumstantial evidence. Secondly, the
passage which we have extracted makes the position clear
~ that handwriting expert's opinion can be relied upon wheh
supported by other items of internal and external evidence. As
has been exhaustively discussed by us in the earlier
B paragraphs, we hav~ found that the handwriting expert's
opinion on Exhibit-46/1 and other documents was only one
piece of evidence in a voluminous documentary and other
evidence, which has been let in by the Prosecution to support
the charges.levelled againsttheAppellant. Therefore, the said
· c decision also does not support the case of the Appellant.
133. Reliance was placed upon the decision reported in
Subash and Shiv Shankar(supra), in particular paragraphs
8 and 9 to contend that lhere was delay in holding Test
Identification Parade so far as PW-62 was concerned and that
D there was no description made while identifying the
photograph of deceased Zahid. It is true, in the said decision,
While rejecting the TIP in respect of one of the accused this
· Court expressed serious doubts about the identification of the
accused by the Witnesses in the TIP which was held three
E weeks after the arrest of the accused and that there was no
explanation. It must be stated that each case depends upon
the peculiar facts of that case. In the.case on hand, we have
noted that having regard to the magnitude of the offence
co.mmitted, namely, the attack on the police force at the
F American Centre, where indiscriminate shooting was carried
out by the assailants in which five policemen lost their life and
several others got seriously injured. The further fact remains
thafoefore executing the attack on 22.01.2002, a rehearsal
.. was held by Appellant Nasir along with the assailants on the
G previous days. Therefore, the witness who identified the
Appellant, namely, PW-62 had the advantage of looking at the
Appellant with some amount of anxiety as Appellant Nasir
created a ruckus while parking the car on two occasions prior
to the date of occurrence, namely, 22.01.2002. In such
H circumstances, it is difficult to apply the said decision .to the
MD. JAMILUDIN NASIR v. STATE
' .
OF WEST BENGAL 149
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

facts of this case. That apart, PW-39 who identified Appellant A
NasirandAftab had known both of them earlier and, therefore,
the identification of the Appellants cannot be controverter at
all. We, therefore, do not find any scope to apply the said
decision to the facts of this case.
134. Thus the various witnesses/facts which were all B
crucial to the case of the Prosecution as found in the confession
of Appellant Nasir noted in sub-paragraphs (a) to (u) were all
corroborated fully by other evidence, with oral and
documentary as well as material objects and, therefore, this
question is also answered in. the affirmative. C
135. Question No. 8: Whether the offence charged·
against the Appellants for which the Appellants were
proceeded against were conclusively proved ?
In the light of our discussion made for the questions 1 to
7, we have no hesitation in holding thattheAppellants are guilty D
of the charges levelled against them a~ found proved except
the charge under Section 27(3) oftheArmsActwhich we have
.held that cannot be maintained in the light of the decision of
this Court reported in Dalbir Singh (supra), therefore, we hold
that the Appellants are guilty of all the other charges as found E
proved against them by the Courts below.
136. Question No. 9: If the offence was made out
against the Appellants as held by the Courts below whether
the sentence of death can be held to be the appropriate
punishment, if not, what is the punishment to be imposed ? F
For answering the said question, it is necessary to note
the charges framed against the Appellants. As many as 12
charges were levelled against the Appellants. As far as the
'last of the charge is concerned, as held by us, the same was G
not maintainable in the light of the decision of this Court in
Dalbir Singh (supra) whereunder the very Section 27(3) of
the Arms Act was struck down as unconstitutional. As far as
the rest of the charges are concerned, when we consider the
charges under Sections 121, 121A, 122 read with 1208 IPC, H
150 SUPREME COURT REPORTS [2014] 14 S.C;R.

A it relates to waging of war against the government of India or
attempt to wage such war or abetting the waging of such war
and conspiring for committing the said offences and for that
purpose collecting arms, etc. with the intention of waging war
against the State.
B 137. As held by us, the said charge has been
conclusively proved. In this context it will be worthwhile to note
the concept of waging of war against the State as has been
explained in detail over a period of time in the pre
Independence era as well as the post-Independence era. An
C elaborate consideration of this concept has already been made
by this Court in the decision reported in Navjot Sandhu @
Afsan Guru (supra). After making a detailed reference to the
interpretation of the expression 'waging war' where reference
has been made to various English and Indian Judgments both
D of pre-Independence era and post-Independence era, this
Court has crystallized the concept as under in paragraphs 282
to 284:
"282. On the analysis of the various passages found in
the cases and commentaries referred to above, what are
E the highlights we come across? The most important is
the intention or purpose behind the defiance or rising
against the Government. As said by Foster, 'The true
criterion is quo animo did the parties assemble?" In other
words the intention and purpose of the warlike operations
F directed against the governmental machinery is an ·
important criterion. If the object and purpose is to strike
at the sovereign authority of the Ruler or the Government
to achieve a public and general purpose in
contradistinction to a private and a particular purpose, ..
G that is an important indicia of waging war. Of course, the
purpose must be intended to be achieved by use offorce
and arms anc;I by defiance of government troops or armed
personnel deployed to maintain public tranquillity. Though
the modus operandi of preparing for the offensive act
· . H against the Government may be quite akin to the
MD. JAMI LU DIN NASIR v. STATE OF WEST BENGAL 151
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

preparation in a regular war, it is often said that the A
. number of force, the manner in which they are arrayed,
armed or equipped is immaterial. Even a limited number
of persons who carry powerful explosives and missiles
without regard to their own safety can cause more
devastating damage than a large group of persons armed B
with ordinary weapons or firearms. Then, the other settled
proposition is that there need not be the pomp and
pageantry usually associated with war such as the
offenders forming themselves in battle line and arraying
in a warlike manner. Even a stealthy operation to c
overwhelm the armed or other personnel deployed by
the Government and to attain a commanding position by
which terms could be dictated to the Government might
very well be an act of waging war.
283. While these are the acceptable criteria of waging D
war, we must dissociate ourselves from the old English
and Indian authorities to the extent that they lay down a
too general test of attainment of an object of general public
nature or a political object. We have already expressed
· reservations in adopting this test in its literal sense and E
construing it in a manner out of tune with the present day.
The Court must be cautious in adopting an approach
which has the effect of bringing within the fold of Section
121 all acts of lawless and violent acts resulting in
destruction of public properties, etc., and all acts of violent F
resistance to the armed personnel to achieve certain
political objectives. The moment it is found that the object
sought to be attained is of a general public nature or has·
a political hu_e, the offensive violent acts targeted against
the armed forces and public officials should not be G
branded as acts of waging war. The expression "waging
war" should not be stretched too far to hold that all the
acts of disrupting' public order and peace irrespective of
their magnitude and repercussions could be reckoned
as acts of waging war against the Government. A H
. 152 SUPREME COURT REPORTS (2014] 14 S.C.R

A balanced and realistic approach is called for in construing
• the expression "waging war" irrespective of how it was .
viewed in the long long past. An organised movement
· attended with violence and attacks against the public
officials and armed forces while agitating for the repeal
B of an unpopular law or for preventing burdensome taxes
were viewed as acts of treason in the form of levying
war. We doubt whether such construction is in tune with
the modern day perspectives and standards. Another
aspect on which a clarification is called for is in regard
c to the observation made.in the old decisions that "neither
the number engaged, nor the force employed, nor the
species of weapons with which they may be armed" is
really material to prove the offence of levying/waging war.
This was said by Lord President Hope in R. v. Hardie in
D 1820 and the same statement finds its echo in many
other English cases and in the case of Magan/al
Radhakishan v. Emperor(AIR at p. 185). But, in our view,
these are not irrelevant factors. They will certainly help
the Court in forming an idea whether the intention and
E design to wage war against the established Government
exists or the offence falls short of it. For inslance, the .
firepower or the devastating potential of the arms and
. explosives that may be carried by a group of persons -
may be large or small, as in the present case, and the
F scale of violence that follows may at times become useful
indicators of the nature and dimension of the action
resorted to. These, coupled with the other factors, may
give rise to an inference of waging war.
284. The single most important factor which impels us to
G think that this is a case of waging or attempting to wage
war against the Government of India is the target of attack.
·chosen by the slain terrorists and conspirators and the.
immediate objective sought to be achieved thereby. The
battlefront selected was the Parliament House complex.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 153
. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

The target chosen was Parliament - a symbol of the A
sovereignty of the Indian republic. Comprised of.peoples'
representatives, this supreme law-making body steers ·
the destinies of a vast multitude of Indian people. It is a
constitutional repository of sovereign power that
collectively belongs to the people of India. The executive B
Government through the Council of Ministers is
accountable to Parliament. Parliamentary democracy is
a basic and inalienable feature of the Constitution.
Entering Parliament House with sophisticated arms and
· powerful explosives with a view to lay a siege to that c
building at a time when members of Parliament, members
of the Council of Ministers, high officials and dignitaries
of the Government of India gathered to transact
parliamentary business, with the obvious idea of
imperilling their safety and destabilising the functioning D
· of the Government and in that process, venturing to
engage the sec4rity forces guarding Parliament in armed
combat, amounts by all reasonable perceptions of law
and common sense, to waging war against the
Government. The whole of this well-planned operation is E
to strike directly at the sovereign authority and integrity
of our Republic of which the Government.of India is an
·integral component. The attempted attack on Parliament
is an undoubted invasion of the sovereign attribute of
the State including the Government of India which is its F
· alter ego. An attack of this nature cannot be viewed on
the same footing as a terrorist attack on some public
office building or an incident resulting in the breach of
public tranquillity. The deceased terrorists were roused
and impelled to action by a strong anti-Indian feeling as G
the writings on the fake Home Ministry sticker found on
the car (Ext. PW~1/8) reveals. The huge and powerful
explosives, sophisticated arms and ammunition carried
by the slain terrorists who were to indulge in "fidayeen"
H
154 SUPREME COURT REPORTS [2014] 14 S.C.R.

·A operations with a definite purpose in view, is a clear
indicator of the grave danger in store for the inmates of
the House. The planned operations if executed, would
have spelt disaster for the whole nation. A warlike situation.
lingering for days or weeks would have prevailed. Such
B offensive acts of unimaginable description and
devastation would have posed a challenge to the
Government and the democratic institutions for the
protection cifwhich the Government of the day stands.
To underestimate it as a mere desperate act of a small
c group of persons who were sure to meet death·, is to
ignore the obvious realities and to stultify the wider
connotation of the "expression of war" chosen by the
drafters of IPC. Thetarget, the obvious objective which
. has political and public dimensions and the modus
D operandi adopted by the hard core "fidayeens" are all
demonstrative of the intention of launching a war against
the Government of India. We n.eed not assess the
·chances of success of such' an operation to judge the
nature of criminality. We are not impressed by the
E argument that the five slain terrorists ought not to be
"exalted" to the status of warriors participating in a war.
Nor do we endorse the argument of the learned Senior
Counsel Mr Sushi! Kumar that in order to give rise !O the
offence of waging war, the avowed purpose and design
F of the offence should be to substitute another authority
for the Government of India. According to the learned
counsel, the deprivation of sovereignty should be the
pervading aim of!he accused in order to bring the offence
under Section 121 and that is lacking in the present case.
We find no force in this contention. The andoubted
G
objective and determination of the deceased terrorists
was to impinge on the sovereign authority of the nation
and its Government. Even ifthe conspired purpose and
objective falls short of installing some other authority or
entity in the place of an established Government, it does
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 155
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

not in our view detract from the offence of waging war. A
There is no warrant for such truncated interpretation."
138. Acl9se reading of the above referred to paragraphs
is sufficient for anyone to understand the concept and to apply
the same in a given case in order to find out as to how the
sentence can be imposed in such cases. Having read the B
above well laid down principles, we can cull out the following
general principles to be applied:
a) The most important is the intention and purpose behind
the defiance or raging against the government.
b) Though the modus operandi of preparing for the C
offensive act against the government may be quite akin
to the preparation in a regular war, it is often said that
the number of force, the manner in which they are
arrayed, the arm and or equipments are immaterial.
D
c) Even a limited number of persons who carry powerful
explosives and missiles without regard to their own
safety can cause more devastating damage than a
large group of persons armed with ordinary weapons
or firearms.
E
d) There need not be the pomp or pageantry usually
associated with war such as the offenders forming
themselves in battle line and arraying in a war-like
manner.·
e) The Court must be cautious in adopting an approach F
which has the effect of bringing within the fold of Section
121 all acts of lawless near and violent acts resulting
in destruction of publi~ property, etc.
f) The moment it is found that the object sought to be
attained is of a great public nature or has a political G
hue the offensive violent act targeted against the .
armed force and public officials should not be branded
as acts of'waging war'.
g) The expression 'waging war' should not be stretched
H
156 SUPREME COURT REPORTS [2014] 14 S.C.R ..

A too far to hold that all acts of disrupting public. order
and peace irrespective of their 111agnitude and
repercussions could be reckoned as acts of 'waging
war' againstthe government. ·
h) A balanced and realistic approach is called in
B construing the expression 'waging war' irrespective ·
of how it was viewed in the long long past.
i) An organized movement attended with violence and
attacks against the public officials and armed forces
While agitating for the repeal of an unpopular law or
c for preventing burdensome. taxes were viewed as acts
of treason in the form of 'waging war'.
j) Neither the number engaged nor the force employed
nor the specie_s of weapon with which they may be·
armed is really material to prove the offence of waging
D war.
k) The single most important factor should be to think
that in a case that is being considered of waging or .
atte"mpting to wage war against the Government of
India, what is the target of attack chosen by the
E
conspirators and the immediate objective sought to
be achieved thereby.
I) The planned operations if executed what is the extent
of disaster spelt out to the whol.e nation. ·Whether a
F war like situation lingering for days or weeks would
have prevailed and such offensive acts of unimaginable
description i:ind devastation would have posed a
challenge to the government and the democratic
institutions for the protection of which the government
of the day stands.
G
m)Was it mere desperate act of a small group of persons
who were sure to meet with death is to ignore the
obvious realities and fo stultify the wide·r connotation
of the expression of war chosen by the drafters of IPC.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 157
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

n) The undoubted objective and the determination of the A
offenders was it to impinge on the sovereign authority
of the nation and its government.
139. After the said decision, we have a recent"decision
of this Court in Mohammed Ajmal Mohammad Amir Kasab
(supra). Here again this Court had to deal with the offences B
under Sections 121, 121A read with 122, 120B. While
analyzing the concept 'waging ·war' against the Government
of India, this Court has explained the concept in the said
decision. This Court has expressed as to how the expression
Government of India should be understood in the context of a C
charge under Sections 121, 121A and 122. The relevant
paragraphs are 537, 538, 540 and 543. We can carefully refer
to paragraph 543, which reads as under:.
"543. Coming back to the facts of the case in hand, we
find that the primary and the first offence that the Appellant D
· and his c_o-conspirators committed was the offence of
waging war against the Government of India. It does not
matter that the target assigned to the Appellant and Abu
Ismail was CST Station (according to Mr Ramachandran,
no more than a public building) where they killed a large E
number of people or that they killed many others on ··
Badruddin Tayabji Marg and in Cama Hospital. What
matters is that the attack was aimed at India and Indians.
It was by foreign nationals. People were killed for no other
reason than they were Indians; in case of foreigners, they. F
were killed because their killing on Indian soil would
embarrass India. The conspiracy, in furtherance of which
the attack was made, was, inter alia, to hit at India; to hit
at its financial centre; to try to give rise to communal
tensions and create internal strife and insurgency; to G
demand that India should withdraw from Kashmir; and to
dictate its relations with other countries. It was in ·
furtherance of those objectives that the attack was made,
causing the loss of a large number of people and injury
.H
158 SUPREME COURTREPORTS (2014] 14 S.C.R.

A to an even greater number of people. Nothing could have
been more 'in like manner and by like means as a foreign
enemy would do'."
140. Having noted the principles on waging of war as
held by this Court in the above two decisions, when we apply
B those principles t6 the case on hand we find the following factors
are relevant to be noted.
a) Of the 17 accused who were proceeded against
AppellantAftab, deceased Zahid and deceased Salim
·are all Pakistani nationals which is not in dispute.
c b) We have found that Asif who had developed close
' contact with Appellant Aftab having joined Jehadi
movement was in close contact with the leader of
Hizbul MuZahideen Mr. Salahuddin and one Dr.
Mushtaq Ahmad in Kashmir in the years 1991to1993.
D
c) Asif along with Appellant Aftab were undergoing
punishment in Tees. Hazari Court for such related
offences under POJA/TADA. ·
d) After his release from Tihar Jail when Asif came back
E to Calcutta in 1999 there was no repentance, instead
· his agenda in association with AppellantAftab was to
intensify his Jehadi activities and for that purpose
associated his childhood friend Appellant Nasir as has
been brought in evidence in detail.
F e) In pursuance of the said objective we have found out
thatAppellant Nasir, Aftab, Asif along with Zahid, Salim
Sadakat, Hasan Imam, Abdullah and others formed a
group and were in close contact with each other from
the middle of 2001 and the various circumstances
G satisfadorily demonstrated before the Court by the
Prosecution till the final act of commission of attack
on the American Centre disclose that there was
definite mindset in them to wreck vengeance against
the state.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 159
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

f) The activities of the deceased Asif immediately after A
the formation of their movement after 1999 along with
Appellant Nasir and under the leadership of Appellant
Aftab, wanted to make quick money by.indulging in
kidnapping activities and from the ill-gotten money
procured arms and ammunitions and organized a B
movement along with Pakistani nationals to wreck
vengeance by developing an impression as though
the Muslims in this country were not properly taken
care by the State.
g) In that process, when Asif got killed on 08.12.2001, C
the intention of the members of the gang got further
intensified and the prime accused AppellantAftab who
was the guiding factor for the other members of the
gang felt that killing of Asif by the police is an affront to
their movement and that a serious revenge was called D
for against the police and the state. In this respect,
the letter of.Appellant Aftab assumes great
significance. That apart the evidence of PW-39,
younger brother of Asif as stated in his evidence that
he had heard his brother discussing with Dr. Mushtaq E
Ahmad and Abdullah that Government of India was
not considerate towards Muslims and therefore, the
government should be taught a lesson.
h) A cumulative effect of the above factors apparently
resulted in the Appellants along with the absconding F
accused and the deceased Zahid, Salim and
Sadakat, who is now facing trial who were all
determined to commit hazardous attack which would
make the State feel the vulnerability of their actions.
i) In the course of the conspiracy the gang members G
made deliberations in consultation withAppellantAftab
through electronic communication namely e-mail as
to which place is to be attacked and if attacked
whether such attack would have serious repercussions
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160 SUPREME COURT REPORTS [2014] 14 S.C.R.

A on the State and the·extent of disturbance it would
create among the pubHc at large.
j) The ultimate actcommitted namely, planned attack on
the ·police force who were assigned the duty of
providing security of the American Centr_e on
B 22.01.2002 at 6.30 a.m. was felt by t~e assailants as
the greatestachievement on their part which was
celebrated by them on 24.01.2002 in the flat of
Appellant Nasir.
k) It is also relevant to' note that the Indian Government
c as a member of the United Nations is duty bound to
provide necessary se'curity to the foreign consulate
officers located in this country by yirtue of international
treaties. Therefore, the decision of the Appellants
along with the other gang members in having chosen
o· - . . I'
the police security force posted outside the American
Centre to launch. their attack and having succeeded
in their· attempt, is yet another factor in this regard.
141. The above factors noted by us which have been
·E found established in the c_ase on hand in our considered
opinion would go to show that the Appellants along with the
absconding accused and Sadakat, who is now facing trial,
really waged a war or attempted to wage a war against the
Government of India, for which they all conspired together and
thereby, committed the offence.falling under Sections 121, 121A
F and 122 read with 1208 IPC. Our conclusions are based on
our findings as recorded below: ··
. • From the evid~nc~ on record, we find that the intention
of the accused collectively and individually was a
defiant of raging attitude against the State. ·
G
• Though the number of accused were not many in
number like that of a manpower required in a battle
field, the mindset of each of the accused was· loaded
with such animosity against the State and its
machinery (viz) the police force, the act of the
H

,- ·' --
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL ~ 161
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

assailants at the spot virtually displayed the vicious A
mindset of all those who were behind it.
•Though the chosen assailants by the conspirators were
only two in number, the vengeance with which they
. indulged in the attack at the spot (viz) the American
Centre towards the police force and the extent of B
damage they caused demonstrated the diabolic
mindset of all the conspirators in committing the crime.
•Though the actual assailants were only two in number
· at the spot of occurrence, the execution of the assault,
. which resulted in the killing offive policemen and injury C
caused to around 13 number of personnel, as
described by the eye-witnesses, disclosed the
merciless conduct of the whole lot of accused. The
scene of occurrence as stated by the Witnesses,
make us feel as though it was like a battle field and a D
war like situation was created, though no pomp and
pageantry usually associated with war was not present.
• This is not an offence due to an outcome of a
lawlessness of a group of individuals who indulged in
such a crime unaware of the damage and destruction E
it would cause. On the other hand, it was an act
committed with all preparation and with a
determination to cause damage of unimaginable ·
extent to men and material.
• The act indulged in by the accused cannot also be F
attributed to any public cause or public good in order
to state that even though the target of attack was
towards police force posted at American Centre, there
was no hippocratic mindset behind such attack. .G
•However, much one would attempt to mitigate the acts
indulged in by the accused and the assailant it is
difficult to comprehend that the accused did not intend
to commit an offence of such high magnitude, but were
only intended to resort to a simple revenge. On the H
. '
162 ~ SUPREME COURT REPOR:rs [2014] 14 S.C.R.

A other hand, the intent and purpose of the attack was
to create an indelible mark in the mind of the State
that their group can go to any extent when it comes to
the question of implementing their wrong perceptive
Jehadi movement.
B • The target of attack chosen after considerable
deliberation by the conspirators, namely, the American
Centre and the police force posted there was sufficient
to demonstrate that once the attack is executed, the
State Machinery should realise the vulnerability of the
c group committing such offence who cannot be ignored
for all time to come.
•We find that the object of the conspirators Was to create
a panic in the mind of the public at large and a
horrendous threat to be felt by the State about the
D accused/assailants and all those who are behind such
conspiracy. The consequence of such an attack also
conveys an impression on the State to be on the alert
· always to face such and even more intense attacks in
future which would pose a constant challenge to the
E State and the democratic Constitution.
• In the ultimate analysis, the act of the accused/assailants
was not a mere desperate act of a small group, but
was an act of higher magnitude with a clear object
and determination to impinge on the SOVE;REIGN
F AUTHORITY of the Nation and its Government.
142. Our detailed discussion of the charges found proved
and based on the medical evidence it was sufficiently
. established that in the attack made. by the Appellants along
G with the absconding accused and Sadakat at American Centre
on 22.01.2002 had killed as many as five police personnel
and injured 13 number of police personnel and other persons.
Such offence committed and found proved against them
certainly constitute offences falling under Sections 302, 307
333 read with 1208 IPC. Similarly, the other offences which
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 163
[FAKKLR MOHAMED IBRAHlM KALIFULLA, J.]

were found proved against the Appellants, namely, the offence A
of forgery falling under Settions 467, 471 read with 468 read
with Section 120B of IPC were also proved.
143. We are also convinced that the findings of the trial
Court as upheld by the High Court in respect of the offences
charged against the Appellant under Section 427 read with B
Section 120B IPC was also proved. The offences found proved
against the Appellant for having acquired and possessed
firearm ammunition AK series rifles pistol 7 .62 bore
ammunition in contravention of Sections 3 and 7 punishable
under Section 25(1) of the Arms Act read with 120B IPC as - C
. well as punishable under Section 27(2) of the Arms act read
with 120B IPC were also proved.
144. Having reached the conclusion, when we come to
the imposition of sentence the trial Court imposed the
punishment of death sentence for offences under Sections D
121A, 121, 122 of IPC and Sections 302, 307, 333, 467, 471
and 468 IPC read with Section 120B of IPC and other
punishments for offences under Sections 25(1A), 27(2), and
27(3) of the Arms Act read with Section 120B of IPC. On the
question of sentencing, it will be useful to refer to certain E
decisions .of this Court. In the decision reported in State of
Uttar Pradesh vs. Sanjay Kumar-" (2012) 8 SCC 537, the
sentencing policy has been explained in.paragraph 21 which
reads as under:
"21. Sentencing policy is a way to guide judicial F
discretion in accomplishing particular sentencing.
Generally, two criteria, that is, the seriousness of the
crime and the criminal history of the accused, are used
to prescribe punishment. By introducing more uniformity
and consistency into the sentencing proceis. the G
objective of the policy, is to make it easier tr/ predict
sentencing outcomes. Sentencing policies ar~ needed
to address concerns in relation to unfettereid judicial
discretion and lack of uniform and equal treatment of
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164 SUPREME COURT REPORTS . (2014] 14 S.C.R.

A similarly situated convicts. The principle of proportionality,
as followed in various Judgments of this Court,
prescribes that, the punishments should reflect the gravity
of the offence and also the criminal background of the
convict. Thus, the graver the offence and the longer the
B criminal record, the more severe is the punishment to be
awarded. By laying emphasis on individualised justice,
and shaping the result of the crime to the circumstances
of the offender and the needs of the victim and community,
restorative justice eschews uniformity of sentencing.
C Undue sympathy to impose inadequate sentence would
do more harm to the public system to undermine the
public confidence in the efficacy of law and society could
not long endure under serious threats."
145, In another recent decision of this Court in Alister
D Anthony Pareira vs. State of Maharashtra -AIR 2012 SC
3802, the principles haVe been stated thus in-paragraphs 70
and 71:
"70. Sentencing is an important task in the matters of
crime. One of the prime objectives of the criminal law is
E imposition of appropriate, adequate, just and
proportionate sentence commensurate with the nature
and gravity of crime and the manner in which the crime
'
is done. There is no straitjacket formula for sentencing
an accused on proof of crime. The Courts have. evolved
F certain principles: the twin objective of the sentencing
policyis deterrence and correction. What sentence would
meet the ends of justice depends on the facts and
circumstances of each case and the Court must keep in
mind the gravity of the crime, motive for the crime, nature
G .of the offence and all other attendant circumstances.
71. The principle of proportionality in sentencing a crime-
doer is well entrenched in criminal jurisprudence. As a
matter of law, proportion between crime and punishment
bears most relevant influence in determination of
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 165
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

sentencing the crime-doer. The Court has to take into A
consideration all aspects including social interest and
consciousness of the society for award of appropriate
sentence."
146. In this context, we can also refer to yet another
decision of this Court in Mohd.Arif vs. State (NCT of Delhi) B
- 2011 13 sec 621 paragraphs 211 and 212 are relevant
which are as under: ·
"211. No other point was argued before us at the instance
of the defence. That leaves us with the question of
punishment. The Trial Court awarded the death sentence C
to the Appellant Mohd. Arif alias Ashfaq for the offence
ljnder Section 121 IPC for waging war against the
Government of India. Similarly, he was awarded death
sentence for the.offence under Section 120-B read with
Section 302 IPC for committing murder of NaikAshok D
Kumar, Uma Shankar and Abdullah Thakur inside Red
Fort on 22-12-2000. For the purpose of the sentences,
the other convictions being of minor nature are not
relevant. On a reference having been made to it, the High
Court ultimately confirmed the death sentence. The High E
Court also concurred with the finding of the Trial Court
that this was a rarest of the rare case. The High Court
has observed that the counsel appearing for him did not
highlight any mitigating circumstance justifying the
conversion of death sentence to life imprisonment F
perhaps because the learned counsel was conscious of
the futility of the submission.
212. The High Court specifically found that the accused
had hatched a conspiracy to attack the Indian Army
stationed inside the national monument for protecting it G
from any invasion by the terrorists and had executed also
that conspiracy with the help of his other associate
militants and in that process they had killed three army
jawans and more could also have lost their lives but for
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166 SUPREME COURT REPORTS [2014] 14 S.C.R.

A the immediate retaliation by the members of the quick
reaction team of the army. In that view, the High Court
concurred with the .finding of this being a rarest of the
rare case. The question is whether we should give the
same verdict in respect of the death sentence."
B . 147. While considering the question of sentence we fe.el
that the various factors taken into account by this Court in the
case of Mohammed Ajmal Mohammad Amir Kasab (supra),
in paragraphs 555 and 556 would be more relevant. The same
are as under:
c "555. We are unable to accept the submission that the
Appellant was a mere tool in the hands of the Lashkar-e-
Toiba. He joined the Lashkar-e-Toiba around December
2007 and continued as its member till the end, despite a
number of opportunities to leave it. This shows his clear
D and unmistakable intenfion to be a part of the
organisation and participate in its designs. Even after
his arrest he regarded himself as a "watan parasf', a
patriotic Pakistani at war with this country. Where is the
question of his being brain'washed or acting under remote
E control? We completely disag_ree that the Appellant was ·
acting like an automaton. During the past months while
we lived through this case we have been able to make a
. fair assessment of the Appellant's personality. It is true
that he is not educated but he is a very good and quick
F learner, has a tough mind and strong determination. He
is also quite clever and shrewd. Unfortunately, he is wholly
remorseless and any feeling of pity is unknown to him.
He kills without the slightest twinge of conscience.
Leaving aside all the massacre, we may here refer only
G to the casualness With which the Appellant and his
associate Abu Ismail shot down Gupta Bhelwala and the
shanty-dwellers Thakur Waghela and Bhagan Shinde at
Badruddin Tayabji Marg; the attempt to break into the
wards of Cam a Hospital to kill the women and children
H
MD. JAMILUDlN NASIR v. STATE OF WEST BENGAL 167
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

who were crying and wailing inside; and the nonchalance A
with which he and Abu Ismail gunned down the Police
Officer Durgude on coming out of Ca ma Hospital.
556. The saddest and the most disturbing part of the case
is that the Appellant never showed any remorse for the
terrible things he did. As seen earlier, in the initial weeks B
after his arrest he continued to regard himself as a "watan
parasf', a patriotic Pakistani who considered himself to
be at war with this country, who had no use for an Indian
lawyer but needed a Pakistani lawyer to defend him in
the Court. He made the confessional statement before C
the Magistrate on 17-2-2009, not out of any sense of guilt
or sorrow or grief but to present himself as a hero. He
told the Magistrate that he had absolutely no regret for
whatever he had done and he wanted to make the
confession to set an example for others to become D
fidayeen like him and follow him in his deeds. Even in
the course of the Trial he was never repentant and did
not show any sign of contrition. The Judge trying him had
occasion to watch .him closely and has repeatedly
observed about the lack of any remorse on the part of E
the Appellant. The High Court, too, has noticed that the
Appellant never showed any remorse for the large-scale
murder committed by him. This, to our mind, forecloses
the possibility of any reform or rehabilitation of the
Appellant. The alternative option of life sentence is thus F
unquestionably excluded in the case of the Appellant and
death remains the only punishment that can be given to
him."
148. A decision ·of this Court of recent times on the
question of sentence is r~ported in Ramnaresh and Others G
vs. State of Chhattisgarh ~ (2012) 4 SCC 257. The principles
laid down therein have been summarized as under in
paragraphs 77 and 78:
"77. While determining the questions relatable to
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168 SUPREME COURT REPORTS [2014] 14 S.C.R.

A sentencing policy, the Court has to follow certain
principles and those principles are the loadstar besides
the above considerations in imposition or otherwise of
the death sentence.
Principles
B ( 1)The Court has to apply the test to determine, if it was
the "rarest of rare" case for imposition of a death
sentence.
(2) In the opinion of the Court, imposition of any other
punishment i.e. life imprisonment would be completely
c inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sen.tence is
· an exception.
(4) The option to impose sentence of imprisonment for
D · life cannot be cautiously exercised having regard to
the nature and circumstances of the crime and all
relevant considerations.
(5) The method (planned or otherwise) and the manner
(extent of brutality and inhumanity, etc.) in which the
E crime was committed and the circumstances leading
to commission of such heinous crime.
78 ..... It is difficulHo state it as an absolute rule. Every
case has to be decided oli its own merits. The judicial
pronouncements, can only state the precepts that may
F govern the exercise 'of judicial discretion to a limited
extent. Justice may be done on the facts of each case.
These are the factors which the Court may consider in
its endeavour to do complete justice between the parties."
149. One other recent decision on imposition of death
G penalty is reported in State of State of Maharashtra vs.
Goraksha Ambaji Adsul - (2011) 7 SCC 437. Paragraph
33 is relevant which reads as under:
"33. The Constitution Bench Judgment of this Court in ·
Bachan Singh has been summarised in· para 38 in
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 169
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Machhi Singh v. State of Punjab and the following A
guidelines have been stated while considering the
possibility of awarding sentence of death: (Machhi Singh
case, sec p. 489)
"(1) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability. B
(ii) Before opting for the death penalty the
circumstances of the 'offender also requires to be
taken into consideration along with the circumstances
of the 'crime'.
(iii) Life imprisonment is the rule and death sentence C
is an exception .... death senten.ce must be imposed
only when life imprisonment appears to be an
altogether inadequate punishment having regard to
the relevant circumstanees ofthe crime, and provided,
and only provided the option to impose sentence of D
imprisonment for life cannot be conscientiously
. exercised having regard to the nature and
Circumstances of the crime and all the relevant
circumstances.
E
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full
weightage and a just patance has to be struck between
the aggravating and the mitigating circumstances F
before the option is exercised." ,
150. On the question of sentence, we can make useful
reference to recent decision of this Court Sanjay Kumar
(supra) wherein after referring to the earlier decisions reported
in Swamy Shraddananda (2) vs. State of Karnataka - G
(2008) 13 SCC 767, Rameshbhai Chandubhai Rathod (2)
vs. State of Gujarat - (2011) 2 SCC 764 and
.Brajendrasingh vs. State of Madhya Pradesh - (2012) 4
sec 289, observed as under paragraph 24:
,H
170 SUPREME COURT REPORTS [2014].14 S.C.R.

A "24. In view of the above, we reach the inescapable
conclusion that the submissions advanced by the learned
counsel for the State are unfouAded. The aforesaid
Judgments make it crystal clear that this Court has merely
found out the via media, where considering the facts and
B circumstances of a particular case, by way of which it
has come to the conclusion that it was not the "rarest of
rare cases", warranting death penalty, but a sentence of
14 years or20 years, as referred to in the guidelines laid
down by the States would be totally inadequate. The life
c imprisonment cannot be equivalent to imprisonment for
· 14 years or 20 years, rather it always meant as the whole
·natural life. This Court has always clarified that the
punishment so awarded would be subject to any order
passed in exercise of the clemency powers of the
D President of India or the Governor of the State, as the
case may be. Pardons, reprieves and remissions are
granted in exercise of prerogative powe"r. There is .no
scope of judicial review of such orders except on very
limited grounds, for example, non-application of mind
E while passing the order; non-consideration of relevant
material; or if the order suffers from arbitrariness. The
power to grant pardons and to commute sentences is
coupled with a duty to exercise the· same fairly and
reasonably. Administration of justice cannot be perverted
F by executive or political pressure. Of course, adoption
of uniform standards may not be possible while
exercising·the power of pardon. Thus, such orders do
not interfere with the sovereign power of the State. More
so, not being in contravention of any statutory or
constitutional provision, the orders, even iftreated to have
G
been passed under Article 142 of the Constitution do
not deserve to be labelled as unwarranted. The aforesaid
orders have been passed considering the gravity of the
offences in those cases that the accused would not be
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 171
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

entitled-to be considered for premature release under A
the guidelines issued for that purpose i.e. under the Jail
Manual, etc. or even under Section 433-A CrPG."
· 151. Sentencing is a delicate task requiring an
interdisciplinary approach and calls for special skills and
talents. A proper sentence is the amalgam of many factors, B
such as, the nature of offence, circumstances -extenuating or
aggravating - of the offence, prior criminal record of the
offender, age and background of the offender with reference
to education, home life, sobriety, social adjustment, emotional
and mental condition, the prospects for his rehabilitation etc. · C
The above passage can be found in Ratanlal & Dhirajlal's Law
of Crimes, 26 1h Edition at page 185 on the topic 'Of
Punishments'.
152. We also keep in mind that under Section 121 for
the offence of waging or attempting to wage war or abetting D
waging of war against the Government of India, the punishment
provided is with death or imprisonment for life and also ltable
to imposition of fine. We have also noted that under Section
354(3) of Cr.P.C., when the conviction is for an offence
punishable with death or in the alternative with imprisonment E
for life or imprisonment for term of years, the Judgment should
state the reasons for the sentence awarded and in the case of
sentence of death the special reasons for awarding such
sentence.
153. Having noted the above decisions on the question F
of sentence we formulate the following fundamental principles
to be borne in mind while dealing with the sentence to be
imposed in respect of crimes committed of such grotesque
nature.
1) The sentence to be awar-Oed should achieve twin G
objectives
a) Deterrence
b) Correction
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172 SUPREME COURT REPORTS [2014] 14 S.C.R.

A 2) The Court should consider social- interest and
consciousness of the society for awarding appropriate
punishment.
3) Seriousness of the crime and the criminal history of
the accused is yet another factor.
1
8 4) Graver the offence longer the criminal record should
result severity in the punishment.
5) Undue sympathy to impose inadequate sentence
would do' more harm to the public
6) Imposition of inadequate sentence would undermine
c
the public confidence in the efficacy of law and society
cannot endure such threats.
154. In cases of this nature where charges under Sections
121, 122, 121A read with 1208 IPC as well as 302 IP-Care
D involved, other principles should also be kept in mind, namely-:
A) Most important factor should be the intention and
purpose behind the waging of war against the State
should be ascertained
8) The modus operandi adopted which involved
E. mobilization of men materials such as arms and
ammunitions indulgfng in serious conspiracy over a
period of time are another relevant factor
C) It will. not depend upon the number of persons - even
limited persons can indulge in more harmful crime than
F. large crowd of persons c.ould do.
D) There need not be pomp and pageantr.y like a battle
field.
E). Not all violent behaviour would fall within the
prescription of waging war as stipulated under
G
Sections 121, 121A, 122 read with 1208.
F) The object sought to be achieved should be directed
against the sovereignty of the StaJe and not merely
commission of crime even if it is of higher vel~city.
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 173
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

G) The concept of 'waging war' should not be stretched A
too far.
H) A balanced and realistic approach should be
maintained while construing the offence committed
and find out whether it would amount to waging of war
against the State B
~Mere organized movement with violence without any
intention of acting against the interest of the nation
has to be examined.
· J) Neitherthe number engaged nor the power employed · C
nor the arms used can be the criteria.
K) It should be seen as to what is the purpose behind the ··
choosing of a.target of attack
L) When a planned operation is executed, what was the
extent ofdisaster resulted, is to be seen o ,,
M) It is to be seen whether it is a mere desperate act of a
small group of persons who indulged in the crime. ·
N) It must be seen whether the undoubted objective and
determination of the offender was it to impinge on the
sovereignty of the nation • E
0) In this context the expansive definition of government·
of India should be understood ·
155. Having thu·s found that the Appellants have
committed the offences for which they are charged, except
the charge under Section 27(3) of the Arms Act, we have also F
concluded that the all the offences committed by the Appeltants
are of a very high magnitude and it has created an indelible
scar especially when the offence of such nature has been
committed with the support of foreign nationals of the
neighbouring country. Therefore, there is every justification in
G
the State machinery in having proceeded against the
Appellants and other accused fo'r the offences under Sections
121, 121A, 122 read with.1208 IPC as well as the charges
under Sections 302, 307, 333 read with 1208 IPC. The .
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174 SUPREME COURT REPORTS [2014] 14 S.C.R.

A ·magnitude of the offences, the manner in which it was carried
out, the disastrous effect it caused which resulted in loss of life
of five police personnel apart from seriously injuring around
13 number of police personnel and other civilians, the animus
· with which the offence came to be committed were all factors
B which persuaded the Courts below to hold that the extreme
punishment of DEATH should be awarded for the Appellants.
We, however, gave a serious thought and consideration to the
nature of punishment to be imposed on the Appellants. While
doing so, we find that from the year 1999 after the release of
c Asif from Tihar Jail where he developed close contact with
AppellantAftab and whereafter when .he came to Calcutta, the
evil desire was formulated for which purpose the assistance
of Appellant Nasir was also taken by° luring him with sustained
income for hirri. Though we could notice that at the time when
o Appellant Nasir joined hands with Asif, his involvement in such
serious activities affecting the society was not existing, after
associating himself with Asif, he was definitely aware of the
nature of activities indulged in by Asif along with Aftab and
others. Even on his own self, it was revealed that he was aware
E that in 1991 Asif wentto Kashmir and joined Jehadi movement.
In spite of such knowledge about the involvement of Asif in
such unlawful activities, affecting the nation as a whole, when
he gained fwther knowledge about his involvement and
association with persons like'Appellant Aftab and other
F Jehadis, it did not· occur to him to detach himself from the
association ofAsif. On the other hand, when in the initial stages
of his re-union with Asif, Appellant Nasir was introduced to
Appellant Aftab, Zahid, Salim, Sadakat, Hasan· Imam and·
others over a period of time, it has come out that knowi~g full
G well of the illegal activities of the associated accused, Appellant
Nasir continued to join hands along with them in executing very
many tasks assigned to him by Asif and Aftab till the demise
of Asif and thereafter by AppellantAftab who was in constant
touch with Appellant Nasir and other accused by passing on
H messages through email. In tact, Aftabwas called by the gang ·
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 175
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

members as 'Bhaisahab' signifying that he was leading the A
whole group of the conspirators.
156. Having noted the extent of pa,rticipation of Appellant ·
Nasir and Aftab in detail in the earlier part of our Judgment,
we are convinced that while the role of Appellant Aftab is of
very high magnitude, the role of Appellant Nasir is slightly lesser B
in degree as compared to that of AppellantAftab, though the
magnitude of the crime committed by both of them along with
the other accused cannot be differentiated amongst them. In
the light of our assessment relating to the nature of involvement
of Appellant Nasir who was mainly acting based on the C
directions of Appellant Aftab and other accused, on many
occasions he also played a key role; such as in th.e matter.of
arranging for fake passports, getting premises for the gang
members to hold their meetings for conspiracy,
accommodating the arms and ammunitions brought by other D
members in pursuit of their common object, arranging for the
transportation of other accused to the city Calcutta, i.e. the
place of occurrence and also by drawing the required sketch
for the movement of co-accused to carry out the operation to
be executed at the targeted place (viz) American Centre. We E
must state that based on the evidence on record, we have
found thatAppellantAftab, though was operating behind the
screen, he was the brain behind the whole scene of occurrence.
He was the mastermind and schemed it in such a way to make
it appear as though he had no role to play but.in reality he F
formulated the evil design and by using Asif, Appellant Nasir,
Zahid, Salim, Sadakat and the rest of the conspirators tow in
line with him and executed the inferno (Scene of Horror)
successfully to the detriment of the State. Therefore, while the
involvement of Appellants Aftab and Nasir in respect of the G
offences for which they were charged and found proved are
devilish, diabolic, horrendous, vicious, wicked and its.
magnitude cannot be lessoned on any account in our
considered opinion, the role of Appellant Nasir was always a· ·
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176 SUPREME COURT REPORTS [2014] 14 S.C.R.

A shade lesser than what can be attributed toAppellantAftab.
157. Having regard to our above conclusion while at the
same time in our view the nature of crime namely, the attack
on the police force posted at the American Centre on
22,01.2002 at 6.30 a.m. in which five police personnel were
B killed and around 13 number of police personnel and other
civilians were grievously injured apart from causing damage
to the public property which definitely constituted the offences
falling under Sections 121, 121A, 122, 302, 307, 333 read
with 1208 as well as other provisions of IPC and of Arms Act,
C it must be stated that this case cannot be equated with the
case in Navjot Sandhu @ Afsan Guru (supra) or the one
dealt with by this Court relating to Mohammed Ajmal
Mohammad Amir Kasab (supra). Similarly, in Mohd. Arif@
Ashfaq vs. State (NCT of Delhi) - (2011) 13 SCC 621, the
D facts relating to attack on Red Fort were different from the
present case and hence cannot be used for the purpose of
deciding the sentence to be imposed on the accused.
Therefore, even while holding that the charges found proved
against the Appellant are of grave in nature, when it comes to
E 'the question of sentence we wish to hold that the imposition of
death penalty is not warranted in the facts and circumstances
of the case though it calls for other deterrent punishment. · ·
158.ln this context, we wish to follow our earlier decision
wherei~ we have referred to the decision reported in Gopal
F Vinayak Godse vs. The State of Maharashtra and others
-AIR1961SC600 and applying Section 45 IPC which defines
life'to mean the life of a human being unless the contrary
appears from the context, the AppellantAftab deserves to be
imprisoned for iife for the entirety of his life while in the case of
G Appellant Nasir he can be imposed with a life imprisonment
for a minimum period of 30 years. For reaching our above
conclusions, we can refer to the line of cases on this aspect
which we have noted in detail in the decisions reported in
Sandeep vs. State bf Uttar Pradesh -(2012) 6 SCC 107,
H
.
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 177
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

paragraph 72, and Mohinder Singh vs. State of Punjab - A
(2013) 3 sec 294, paragraph 40, which reads as·under:
Paragraph 72 of Sandeep (supra) .
"72. It is, therefore, well settled that awarding of life
sentence is the rule, death is an exception. The
application of "the rarest of the rare case" principle is B
dependent upon and differs from case to case. However,
the principles laid down earlier and restated in the various
decisions of this Court referred to above can be broadly
stated that a deiiberately planned crime, executed
meticulously in a diabolic manner, exhibiting inhuman C
conduct in a ghastly manner, touching the conscience of
everyone and thereby disturbing the moral fibre of society
would call for imposition of capital punishment in order
to ensure that it acts as a deterrent." ·
Paragraph 40 of Mohinder Singh (supra)
D
40. Be that as it may. When we come to the question of
applying the various principles culled out from the
decisions right from the Constitution Bench decision ·in
Bachan Singh right up to the case of Mohd. Ajmal Amir E
Kasab as held by my learned Brother P. Sathasivam, J.
for the various reasons referred to therein, we find that
the case still does not fall within the .category of the "rarest
of tlie rare case" though it calls for a stringent punishment. ~
Therefore, while modifying the sentence from one of F
death penalty to that of life imprisonment till the end of
his life we apply the earliest decision of this Court in
Gopal Vina yak Godse v. State of Maharashtra wherein
· this Court held in para 5 as under: ( Gopal Vinayak case,
·AIRp. 603)
G
"5.... It does not say that transportation for life shall
be deemed to be transportation for twenty years for
all purposes; nor does the amended section which
substitutes the words 'imprisonment ·for life' for
'transportation for life' enable the drawing of any such H
178 SUPREME COURT REPORTS [2014] 14 S.C.R.

A all-embracing fiction. A sentence of transportation for
life or imprisonment for life must prima facie be treated
as tra.nsportation or imprisonment for the whole of the
remaining period of the convicted person's natural life."
The said principle was followed subsequently in Mohd.
B Munna v. Union of India, SCC p. 426, para 15."
159. In the light of our above conclusions, while we do
not find any merits in these appeals and while dismissing the
appeals and confirming the guilt of a!I the charges found proved
. against both the Appellants by the trial Court, as confirmed by
C the High Court, except the charge under Section 27(3) of the
·Arms Act which alone is set aside. For the offences which have
been found proved and confirmed in these appeals against
the Appellants, while for the Appellant Nasir in Criminal Appeal
No.1240-41 of 2010 the punishment of death for the offence
D under Sections 121, 121 A, 122 read with 1208 IPC is modified
as one of life and we hold that he should undergo Rigorous
Imprisonment for a minimum period of 30 years without any
remission. In so far as Appellant Aftab in Criminal Appeal
No.1242-43 of 2010 is concerned for the offences found proved
E under Sections 121, 121A. 122 read with 1208 IPC, the
punishment of death shall stand modified and he shall undergo ·
imprisonment Of life. till .the end of his life. All the other sentences
imposed on the Appellants are maintained which as held by
the Courts below shall run concurrently.
F 160. Before parting with the case, we must place on
record and appreciate the work of the Investigation Team
headed by PW-123-Anil Kar. On the very date of the incident
when he was entrusted with the task of investigation, he swung
into action and from then onwards, we found that he relentlessly
G carried on the investigation with the wholehearted assistance
of each one of his team members and they deserve appropriate
encouragement in their services.
161. These appeals are, therefore, partly allowed to the
extent that the imposition of death penalty for offence under
H
MD. JAMILUDIN NASIR v. STATE OF WEST BENGAL 179
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Section 27(3) of the Arms Act is set aside and imposition of A
death penaltyforoffences under Sections 121, 121A, 122 read
with 1208 IPC is modified into one of life and in the case of
theAppellantAftab such life imprisonment should be suffered
by him till the end of his life and in the case of Appellant Nasir
life imprisonment should be for a minimum period of 30 years B
without any remission.Appeals stand disposed of on the above
terms.

Nidhi Jain Appeals disposed of.