MOHD. AYUB DARversusSTATE OF J & K

                        (2010] 8 S.C.R. 916


A                       MOHD. AYUB DAR
                                  V.
                         STATE OF J & K
                (Criminal Appeal No. 535 of 2009)

                           JULY 21, 2010
B
    [V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
                         JJ.]

      Ranbir Penal Code, Samvat 1989 (AD 1932) - ss. 302
C and 1208 r/w s. 3(3) of TADA Act - Conviction under - By
  designated court - On appeal, held: Conviction is justified -
  Prosecution was able to prove the homicidal death - The
  confession made by the accused was voluntary and truthful
  and hence reliable - The confessional statement was also
D corroborated by oral and documentary evidence - Once
  confession made uls. 15 of TADA Act is accepted, no other
  evidence is required - Terrorist and Disruptive Activities
  (Prevention) Act, 1987 - ss. 3(3) and 15.

        Terrorist and Disruptive Activities (Prevention) Act, 1987:
E
        s. 15 - Confessional statement under - Held: Can be
    used for proving non-TADA offences - Ranbir Penal Code,,
    Samvat 1989 - ss. 302 and 1208.

F        s. 15 - Confessional Statement under - Evidentiary
    value - Need for corroboration - Held: If the confession is
    voluntary and truthful and relates to accused himself, no
    corroboration necessary - Conviction can be solely based on
    it.
G        J & K .Code of Criminal Procedure, Samvat 1989 (AD
    1933) - s. 374 - Applicability of - Conviction of accused for
    the offences under TADA Act and RPC, by designated court
    - Life imprisonment - Appeal to Supreme Court without
    confirmation of the order of imprisonment by High Court -
H                                916
        MOHD. AYUB DAR v. STATE OF J & K                    917

Power of Supreme Court to look into legality of life               A
imprisonment in view of s. 374 - Held: In view of ss. 2(b), 14,
19 and 25 of TADA Act, for the trial before designated court,
Cr.P.C., 1973 is applicable and not Cr.P.C., Samvat 1989 -
Thus, s. 374 is not applicable - Therefore, Supreme Court
can look into the legality of life imprisonment - Terrorists and   B
Disruptive Activities (Prevention) Act, 1987 - ss. 2(b), 14(3),
19' and 25 - Ranbir Penal Code, Sam vat 1989 - ss. 302 and
120 B.

     Appellant-accused, alongwith four other accused               C
persons, was prosecuted uls. 3 (3) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 and u/s. 3o2
and 1208 of Ranbir Penal Code, Samvat 1989. As per the
prosecution case, two terrorist groups were
apprehensive that the deceased would assume political
leadership of Kashmir and that he was an agent of Indian           D
Government. The accused pe_!§ons, who were members
of one of the militant groups, entered. into a criminal
conspiracy to eliminate the deceased. On the fateful day,
the appellant-accused alongwith two of the accused went
to the office of the deceased. One of the other two                E
accused fired at the deceased, while the other, accused
fired in the air. Thereafter the three accused as per the
direction of their head went underground. The appellant-
accused was arrested in Delhi in some other case.
Thereafter, he was arrested in the instant case. In his            F
statement u/s. 15 of the TADA Act, made before PW-2, he
confessed his crime and the involvement of other
accused persons. The post-mortem of the dead body
could not be carried out as a very serious law and order
situation arose due to death of the deceased and on the            G
demand of the followers of the deceased, the dead-body
was handed over to them without the post-mortem being
carried out.

     Two of the assailants died during pendency of the             H
    918      SUPREME COURT REPORTS              [2010) 8 S.C.R.

A trial, while the other two were untraceable. Appellant-
  accused alone came to be charged. The designated court,
  relying on the evidence of the witnesses and the
  confessional statement of the appellant-accused,
  convicted him u/s. 3(3) of TADA Act and u/s. 302 of RPC
B and sentenced him to life imprisonment and fine with
  default stipulation. The instant appeal was filed against
  the order of the designated court by the accused.

          Dismissing the appeal, the Court

C         HELD: 1. It is not correct to say that the life
    imprisonment ordered by the trial court was liable to be
    confirmed by the High Court and the same having not
    been done, this Court could not look into the question
    of legality of the life imprisonment because u/s. 374 of
D   Cr.P.C., Samvat 1989, as applicable to Jammu and
    Kashmir, even if a life imprisonment ordered by the court
    is that State is required to be confirmed, it is specifically
    provided in Section 14(3) of the Terrorist and Disruptive
    Activities (Prevention) Act that the designated court shall,
E   for the purpose of trial of any offence, have all the powers
    of a Court of Session and shall try such offences as if it
    were the Court of Session so far as may be in
    accordance with the procedure prescribed in the Code
    for the trial before the Court of Session. The word "Code"
F   as defined u/s. 2(b) of the TADA Act, means the Code of
    Criminal Procedure, 1973. Therefore, it is clear that the
    trial has to be conducted in accordance with the Cr.P.C.,
    1973 and not in accordance with the Cr.P.C., Samvat 1989
    as applicable to the State of Jammu and Kashmir. Under
G   Section 19(1) of the TADA Act, an appeal is provided
    against the judgment, sentence or order, not being an
    interlocutory order by a designated court to the Supreme
    Court of India. Sub-section (2) thereof provides .that,
    except the cases mentioned under sub-section (1), no
    appeal or revision shall lie to any court from any
H
       MOHD. AYUB DAR v. STATE OF J & K               919


judgment, sentence or order including an interlocutory A
order of a designated court. Section 25 of the TADA Act
provides that the provisions of the TADA Act or any Rule
thereunder or any order made under any such rule shall
have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the B
TADA Act or in any instrument having effect by virtue of
any enactment other than this Act. In view of these
provisions there will be no question of applicability of
Section 374 of Cr.P.C., Samvat 1989. [Para 10] [930-A-H]
                                                            /c
     2 .1. It is not correct to say that de hors the
confession of the accused, the prosecution has not been
able to prove that the accused/appellant was one of the
accused persons present alongwith the other accused
persons who had fired at the deceased. The prosecution
has certainly been able to prove homicidal death of the D
deceased by being shot at. True it is that no post mortem
was conducted, however, prosecution has given proper
explanation that the post mortem could not have been
conducted due to angry public reaction. However, in-
spite of that, there is good evidence to suggest that the E
deceased died of the bullet injuries almost immediately
                        }

after he was fired. All this could not have been possible
unless the assailants had entered into conspiracy to
murder the deceased. It was in pursuance of that
conspiracy alone that the assailants entered the chamber F
of the deceased and fired at him. Seeing the prosecution
evidence as it is, if all the three accused came together
and approached the chamber of the deceased and one
of them fired at him, there will be no question of only the
individual liability. Therefore, the trial court was right in G
convicting the accused u/s. 3 (3) of the TADA Act. [Paras
17 and 18] [936-B, F-H; 937-A-D]

    2.2. Whether the appellant/accused was one of the
assailants, could have been proved by direct evidence        H
    920     SUPREME COURT REPORTS               [2010] 8 S.C.R.

A firstly or· alternatively or in addition to it, by the
  confessional statement recorded uls. 15 of the TADA Act.
  If the confessional statement stands the acid test on
  credibility, voluntariness and truthfulness, then that
  would be sufficient to pin the guilt of the accused. [Para
B 18] [937 -D-F]

       2.3. If the confession made by the accused is
  voluntary and truthful and relates to the accused himself,
  then no further corroboration is necessary and a
  conviction of the accused can be solely based on it. Such
C confessional statement is admissible as a substantive
  piece of evidence. The said confession need not be
  tested for the contradictions to be found in the
  confession of the co-accused. It is for that reason that
  even if the other oral evidence goes counter to the
D statements made in the confession, the confession can
  be found to be voluntary and reliable and it can become
  the basis of the conviction. In the instant case, there is
  ample corroboration to the confession in the oral
  evidence as well as the documentary evidence in shape
E of a chit, which is referred to in the said confession. [Para
  27] [945-B-D]

        S.N. Dube vs. N.B. Bhoir and Ors. 2000 (2) SCC 254;
    Ravinder Singh alias Bittu vs. State of Maharashtra 2002 (9)
F   sec 55, relied on.
         Lakeman Shah and Anr. vs. State of WB. etc. etc. 2001
    (5) SCC 235; Abdulvahab Abdul Majid Shaikh and Ors. vs.
    State of Gujarat etc. etc. 2007 (9) SCC 293, referred to.

G     2.4. The only test which the court has to apply is
  whether the confession was voluntary and free of
  coercion, threat or inducement and whether sufficient
  caution is taken by the police officer who recorded the
  confession. Once the confession passes that test, it can
H become the basis of the conviction. The confession in the
      MOHD. AYUB DAR v. STATE OF J & K                921


instant case was free from all the aforementioned defects     A
and was voluntary. It was properly recorded and it was
also recorded in the free atmosphere, as PW-2 the Police
Officer who recorded the confession had given sufficient
time to the accused for the reflection. The accused had
also at no point of time complained regarding any             B
coercion to any authority. The de.fence, as is apparent
from examination of the appellant-accused u/s. 313
er.P.e., 1973 is that he had not given any statement at
all. [Paras 24 and 28) [946-E-F; 942-E-G]

     Kartar Singh vs. State of Punjab 1994 (3) sec 569,
                                                              c
followed.

     State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru
etc. etc. 2005 (11) sec 600, relied on.
                                                              D
     Mohd. Ayubdhar and Anr. vs. State of NCT of Delhi 2000
(10) SCC 296; Prakash Kumar@ Prakash Bhutto vs. State
of Gujarat 2007 (4) SCC 266; Abdulvahab Abdul Majid
Shaikh and Ors. vs. State of Gujarat etc. etc. 2007 (9) SCC
293, distinguished.
                                                              E
     State through Superintendent of Police, CBI/SIT vs.
Nalini and Ors. 1999 (5) sec 253; Lakeman Shah and Anr.
vs. State of WB. etc.. etc. 2001 (5) SCC 235; Abdulvahab
Abdul Majid Shaikh and Ors. vs. State of Gujarat etc. etc.
2007 (9) sec 293, referred to.                                F

    2.5. The appellant on one hand has chosen to rely
upon a part of the confession and or. the other hand, he
asserts that he had, at no p~int. of time, made any
confessional statement. This shows the hollowness of G
defence on the part of the appellant. The confession was
indeed made by the appellant and the details given in the
confession and the meticulous planning that went behind
committing murder of the deceased which has been
                                                              H
    922     SUPREME COURT REPORTS                [2010] 8 S.C.R.


A   reflected in the confession, not only render it voluntary,
    but truthful also. This confession is not only a good,
    voluntary and truthful confession but a reliable one also
    and the trial court has committed no mistake whatsoever
    in relying upon the said confession. Once the confession
s   made u/s. 15 of the TADA Act is accepted, there is no
    necessity of any other evidence being required. The way
    the appellant himself has worked for the success of the
    conspiracy, the way he has handled the guns and
    ~i::companied two other assailants to the house of the
c   deceased and the manner in which the plan was
    executed convinces that the order is absolutely correct.
    [Paras 32 and 33] [950-D-H; 951-A-C]

       2.6. The whole cross-examination does not dent the
  case of the prosecution and it can be inferred that the
D criticism against the confession that it was not recorded
  in the language of the accused is not justified. There is
  absolutely no effort made by the defence to establish that
  the statement was not made in the language of the
  accused persons. The confession also cannot be foiled
E on the ground that the original confessional statement
  was not on record as the original confession was very
  much available on the record. [Para 21] [940-D-F]

          2.7. The failure to examine two-persons ('GS' and
F    'GQ) as witnesses, would be of no consequence looking
     at the overall evidence of the witnesses, more particularly,
    ·all those who were present at the spot. It cannot be
     gathered that 'GS' was present at the time of incident.
    Insofar as the evidence of 'GQ' is concerned, it was
G pointed out by PW-17 that said person was already dead
  at the time of trial. [Para 22] [940-G-H; 941-A-B]

        3. It is not correct to say that the confession u/s. 15
    of TADA Act could have been used only against the
    TADA Act offences and it c;>.iinot be used for a Non-TADA
H
       MOHD. AYUB DAR v. STATE OF J & K               923


offence like Section 302 of the RPC and it could not even A
be read in order to prove the said offence. The facts
relating to Section 3(3) of the TADA Act and the facts
relating to Section 302 of RPC are completely inter-mixed
in this matter. They are the part of the same transaction.
A plain reading of the confession clearly goes to show B
that the accused was guilty of conspiring or attempting
to commit or advocating, abetting, advising or inciting or
knowingly facilitating, the commission of a terrorist act or
any act preparatory to a terrorist act. The act of killing the
deceased comes within the definition of 'terrorist act' as c
given in Section 2 (h) r/w. Section 3(1) of the TADA Act.
[Para 30] [947-A-E]

     Kartar Singh vs. State of Punjab 1994 (3) SCC 569,
followed.
                                                            D
                    Case Law Reference:
    2000 (1 O) sec 296        distinguished.      Para 23
    2001 (4) sec 266          distinguished.      Para 23
                                                            E
    2001 (9) sec 293          distinguished.      Para 23
                              referred to.       Para 27
    1994 (3) sec 569          followed.          Para 24
    2005 (11) sec 60o         relied on.          Para 25   F
    1999 (5) sec 253          referred to.       Para 26
    2000 (2) sec 254          relied 011.         Para 27
    2002 (9) sec 55          ·relied on.         Para 27    G
    2001 (5) sec 235          referred to.        Para 27
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 535 of 2009.
                                                            H
    924      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A        From the Judgment & Order dated 7.3.2009 of the 3rd
    Additional Sessions Judge, Jammu (Designated Court under
    TADA) in File No. 101/Ch.

        Sushi! Kumar, Aditya Kumar, Amit Kumar Sharma, E.C.
B   Agrawala for the Appellant.

         H.P. Rawal, ASG, A. Mariarputham, Ranjana Narayan,
    P.K. Dey, A.K. Sharma, Shail Kumar Bhat, B. Krishna Prasad,
    Anis Suhrawardy, S. Mehndi Imam, Tabrez Ahmad, Mohd,
    Parvez Dabas for the Respondent.
c
          The Judgment of the Court was delivered by

          V. S. SIRPURKAR, J. 1. Appellant Mohd. Ayub Dar S/o
    Abdul Ahad - Original accused no.1 challenges his conviction
    for the offence punishable under Section 3 (3) of the Terrorist
D   and Disruptive Activities (Prevention) Act, 1987 (In short 'TADA
    ACT"), as also for the offence punishable under Section 302
    of the RPC. Originally, the five accused persons were tried in
    respect of murder of Mirwaiz Moulvi Farooq, which took place
    on 21.5.1990, at about 11 O'clock in the morning. Accused
E   no. 2 Abdul Rehman Shigan and accused no.3 Abdulla
    Bangroo expired during pendency of the trial, while the other
    two accused persons namely Javed Ahmed Bhat @ Ajmal Khan
    @ Ditta s/o. Habibulla Bhat and Zahoor Ahmed @ Bilal @
    Zana were untraceable. Thus, out of the five accused persons,
F   we are concerned only with accused no.1 (appellant herein)
    Mohd. Ayub Dar S/o Abdul Ahad.

          2. It so happened that on 21.5.1990, at about 11 O' clock
    in the morning, three unknown terrorists entered into the house
G   of Mirwaiz Moulvi Farooq with the intention of killing him and
    Moulvi Farooq was severely injured by gun-shot. He, ultimately,
    succumbed to the injuries in Soura Hospital, Srinagar, and,
    therefore, the offence registered u/s. 307 of the RPC originally
    was converted into the offence u/s. 302 of the RPC on the same
H   day. The initial investigation was done by Police Station,
        MOHD. AYUB DAR v. STATE OF J & K                    925
               [V.S. SIRPURKAR, J.]

Nageen, which was thereafter transferred to yBI under the A
orders of the Government of India vide Notification No.228/3/
90-AVD.11, dated 11.06.90. The house of Moulvi Farooq was
in New Colony, Nageen, Shrinagar, known as 'Mirwaiz Manzif,
wherein one small doubled storeyed building was constructed
for the purpose of residential Office of Mirwaiz. This small Office B
had two rooms on the ground floor and one big hall on the first
floor. In one of the two rooms; on the ground floor, the Personal
Assistant of Mirwaiz Moulvi Farooq used to sit and the second
room was adjacent to the said room, which had office of
Mirwaiz Moulvi Farooq. The entrance to the Office of Mirwaiz       c
Moulvi Farooq was from the room of his Personal Assistant.

      3. It was the prosecution case that, due to popularity of
Mirwaiz Moulvi Farooq, two terrorists outfits namely Jamt-e-
lslami in genera'! and Hizbul-Mujahideen in particular were
apprehensive that Moulvi Farooq would eventually assume D
political leadership of Kashmir. They also viewed him as an
agent of Government of India working against the interests of
militant groups. Therefore, in the year 1990 itself, in the month
of April, accused Abdulla Bangroo, Javed Ahmed Bhat @
Ajmal Khan @ Bitta and Mohd. Ayub Dar @ lshfaq - present E
appellant, who belong to Hizbul Mujahideen, .entered into a
criminal conspiracy to eliminate Mirwaiz Moulvi Farooq.
Accused Abdulla Bangroo, who was then heading Hizbul
Mujahideen, instructed Javed Ahmed Bhat@ Ajmal Khan and
Mohd. Ayub Dar@ lshfaq - present appellant to plan elimination F
of Mirwaiz Moulvi Farooq. Javed Ahmed Bhat @ Ajmal Khan
was then working as an Area Commander of Hizbul-
Mujahideen in the downtown area of Srinagar; whereas the
appellanUaccused was working as a Group Commander in that
very area. Later on, Abdul Rehman Shigan@ lnayat and Zahoor G
Ahmed @ Bilal @Zana also joined the conspiracy. It came out
in the investigation that, in the second week of May, 1990, under
the instructions of Javed Ahmed Bhat @ Ajmal Khan, Mohd.
Ayub Dar @ lshfaq - present appellant and Abdul Rehman
Shigan @ lnayat had visited the residence of Moulvi Farooq H
    926     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   at Nageen, Srinagar and had requested him for financial help
    to their militant organization i.e. Hrzbul Mujahideen. Moulvi
    Farooq had agreed to help them and had asked them to meet
    after 2/3 days during the morning hours. Thereafter, two
    accused surveyed the area as per their plan and informed the
B   details to Javed Ahmed Bhat @ Ajmal Khan. It was on
    21.05.1990 that the three accused namely Mohd Ayub Dar@
    lshfaq (present appellant}, Abdul Rehman Shingan @ lnayat
    and Zahoor Ahmed @ Bilal @ Zana armed with loaded pistol
    visited the 'Mirwaiz Manzi!' at Nageen. Accused Javed Ahmed
c   Bhat @ Bilal had instructed the appellant that, out of the three
    accused persons, Zahoor Ahmed @ Bilal would fire on Moulvi
    Farooq and the remaining two accused persons namely Ayub
    Dar i.e. present appellant and Abdul Rehman Shingan were to
    provide cover to Zahoor Ahmed @ Bilal. As per the plan, they
D   all reached the gate of Mirwaiz Manzi! and met Maqbool Shah,
    the gate-keeper (PW-16) and informed him that they wanted
    to meet Moulvi Farooq. Maqbool Shah (PW-16) then asked
    Gulam Qadir Sofi, the gardener, to take them to the Personal
    Assistant as he himself was going to the market. Accordingly,
    the gardener - Gu lam Qadir Sofi took the three to the Personal
E   Assistant namely Saidur Rehman (PW-17), who asked them
    about their names and one of them disclosed his fake name
    as Guizar Farooq r/o. Batmaloo. That name was written by the
    Personal Assistant on a slip of paper and the said slip was sent
    inside the room of Moulvi Farooq through the gardener Gulam
F   Qadir Sofi. After sometime, Moulvi Farooq called the three
    accused inside the Office, on which Zahoor Ahmed @ Bilal
    entered the room. of Moulvi F arooq and the remaining two
    accused persons including the present appellant took up
    position in the PA's room. On entering the room of Moulvi
G   Farooq, Zahoor Ahmed @ Bilal fired several rounds on Moulvi
    Farooq from his pistol and immediately, accused lnayat also
    fired from his pistol in the air while coming out of PA's room,
    which hit the outside wall of the Office. On hearing the sound
    of firing, the gardener came inside the Office and tried to catch
H
         MOHD. AYUB DAR v. STATE OF J & K                   927
                [V.S. SIRPURKAR, J.]

hold of lshfaq, who was trying to escape. However, all the          A
accused persons escaped giving a push to the Gardener
Gulam Qadir Sofi. Accused Bilal also tried to run away, but he
was caught by Gu lam Qadir Sofi. There was a scuffle between
the two, in which Bilal sustained an injury below his right eye.
Later, after firing one round from his pistol, Bilal also managed   B
to escape. The accused persons ran towards Kashmir
University, who were followed by Gulam Qadir Sofi upto the
main road and near the University Gate, the assailants ran
towards Soura through the University compound and reached
Chhatargaon in the afternoon of 21.05.1990. They then reported      c
killing of Moulvi Farooq to Abdulla Bangroo and Ajmal Khan.
All the three accused persons were directed by Abdulla
Bangroo and Ajmal Khan to go underground for sometime.

    4. The prosecution urged that appellant Mohd Ayub Dar
@ lshfaq had visited Pakistan, where he was trained in the          D
handling of firearms and explosives. He was involved in a
number of other terrorists' cases and was arrested in Delhi by
the Delhi Police on 6.5.1991. He was further arrested in the
present case on 15.6.1991 by CBI. When his statement was
recorded u/s. 15 of the TADA Act, he confessed the aforesaid        E
crime and disclosed the names of other two assailants namely
Abdul Rehman Sigan @ lnayat and Zahoor Ahmed @ Bilal. He
also confessed regarding involvement of accused Abdulla
Bangroo and Ajmal Khan in the crime.
                                                                    F
     5. Accused Abdul Rehman Singan @ lnayat, who was in
the judicial custody in a case of CID, Srinagar, was also
arrested in this case on 20.9.1990. He also confessed the guilt
and corroborated the statement made by the present appellant.

    6. After he was fired, injured Mirwaiz Moulvi Farooq was        G
removed to Sher-e-Kashmir Institute of Medical Sciences,
Soura by Manzoor Ahmed and Saffad Ahmed, who were his
brothers-in-law and Nazir Ahmed Dar, a servant. He was
examined by Dr. Abdul Mazid and was immediately operated
thereupon. Dr. Afzak Wani, Head of the Department of                H
    928      SUPREME COURT REPORTS                [2010] 8 S.C.R.


A   Neurosurgery, Institute of Medical Sciences, Soura was also
    consulted. But, at about 12.30 P.M., Mirwaiz Moulvi Farooq
    succumbed to the injuries in the hospital. Injury Report was
    prepared by Dr. Abdul Mazid. However, post mortem on the
    dead body could not be carried out as a very serious law and
B   order situation ensued owing to death of Moulvi Farooq. A
    huge mob got collected at the spot and they demanded that
    the dead body of deceased be handed over to them without
    the post-mortem being carried out. The dead body was,
    ultimately handed over to the followers of Moulvi Farooq and
c   the last rites were performed on the next day. His wearing
    apparels were seized and were referred to the Central Forensic
    Science Laboratory (C.F.S.l.) along with the bullets and empty
    cartridges seized from the place of occurrence. The C.F.S.L.
    opined that the wearing apparels were having holes
D   corresponding to the injuries of the deceased. It was further
    opined that the empty fired cartridges which were seized, as
    also the bullets seized from the place of occurrence were fired
    from two types of small arms. The facts suggested that the
    present accused/appellant and Abdul Rehman Shigan @ lnayat
    had committed an offence u/s. 302 r/w. section 34 of the RPC,
E   while the other accused persons namely Abdulla Bangroo @
    Khalid, Javed Ahmed Bhat @ Ajmal Khan along with Mohd.
    Ayub Dar@ lshfaq (present appellant) and Zahoor Ahmed @
    Bilal @ Zana and Abdul Rehman Shigan @ lnayat had
    committed an offence under Section 3 (3) of the TADA Act,
F   1987.

         7. Under the above circumstances, the appellant/accused
    alone came to be charged. About 24 witnesses came to be
    examined and the confessional statement recorded by A. K.
G   Suri (PW-2), who was then working as S.P., CBI, came to be
    relied upon by the prosecution. The statement came to be
    recorded on 27.6.1991 after the accused/appellant was brought
    from Delhi to Srinagar.

          8. The trial Court considered the evidence of all the
H
        MOHD. AYUB DAR v. STATE OF J & K                     929
               [V.S. SIRPURKAR, J.]

witnesses individually. The Court also took notice of the            A
argument that copy of the First Information Report was not sent
to the Court and came to the conclusion that the contention
raised by the defence was not correct. The Court further came
to the conclusion that there was nothing suspicious regarding
non-sending of the First Information Report. The trial Court also    B
rejected the argument of the defence that there were
inconsistencies and contradictions in the evidence of
prosecution witnesses inter-se. It pointed out that the minor
discrepancies could not and did not matter in this case. It was,
in fact, observed that the defence was not able to point out any     c
material contradiction in the evidence of witnesses during the
course of arguments. The trial Court came to the conclusion
that non-performance of post-mortem did not matter as it was
clear that Moulvi Farooq died due to gun-shot injuries. In fact,
the trial Court accepted the evidence of Dr. Mohd. Afzal Wani
                                                                     0
(PW-6). Ultimately, the trial Court also accepted the confession
given by the appellant. Relying upon the evidence, the trial Court
convicted the accused/appellant for the offence u/s. 3 (3) of the
TADA Act and u/s. 302 of the RPC. After hearing the accused
person on the question of sentence, the trial Court awarded
imprisonment for life with a fine of Rs.6,000/- and in default of    E
payment of fine, the appellant was directed to suffer further
imprisonment for six months for the offence u/s. 302 of the
RPC. The appellant is also sentenced to undergo imprisonment
for a period of five years and to pay a fine of Rs.5,000/- u/s.
3(3) of the TADA Act. In default of making the payment of fine,      F
the accused was directed to undergo imprisonment for six
months.

    9. Lastly, the trial Court, following Section 374 of the J &
K Code of Criminal Procedure, 1989, ordered that the                 G
imprisonment for life would be subject to confirmation by this
Court since this Court is the appellate Court. It is this judgment
which is being challenged before us.

     10. Shri Sushil Kumar, learned Senior Counsel, initially
                                                                     H
    930     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   raised a preliminary argument to the effect that the life
    imprisonment ordered by the trial Court was liable to be
    confirmed by the High Court and the same not having been
    done, this Court could not look into the question of legality of
    the life imprisonment. The argument is based on Section 374
B   of the Criminal Procedure Code as applicable in the State of
    Jammu and Kashmir, under which even a life imprisonment
    ordered by the Court in that State is required to be confirmed.
    The argument is, however, not correct inasmuch as it is
    specifically provided in Section 14 (3) of the TADA Act that the
c   Designated Court shall, for the purpose of trial of any offence,
    have all the powers of a Court of Session and shall try such
    offences as if it were the Court of Session so far as may be in
    accordance with the procedure prescribed in the Code for the
    trial before the Court of Session. The word "Code" is defined
D   u/s. 2 (b) of the TADA Act, wherein is it provided that the word
    "Code" means the Code of Criminal Procedure, 1973 (2 of
    1974). Therefore, it is clear that the trial has to be conducted
    in accordance with the Criminal Procedure Code, 1973 and not
    in accordance with the Criminal Procedure Code as applicable
    to the State of Jammu and Kashmir. U/s. 19 (1) of the TADA
E   Act, an appeal is provided against the judgment, sentence or
    order, not being an interlocutory order by a Designated Court
    to the Supreme Court of India. Sub-section (2) thereof provides
    that, except the cases mentioned under sub-section (1 ), no
    appeal or revision shall lie to any Court from any judgment,
F   sentence or order including an interlocutory order of a
    Designated Court. Section 25 of the TADA Act provides that
    the provisions of the TADA Act or any Rule thereunder or any
    order made under any such rule shall have effect
    notwithstanding anything inconsistent therewith contained in any
G   enactment other than the TADA Act or in any instrument having
    effect by virtue of any enactment other than this Act. In view of
    these provisions on which Mr. Rawal, the learned Additional
    Solicitor General of CBI, relies upon, there will be no question
    of applicability of Section 374 of the Criminal Procedure Code
H   as applicable to the State of Jammu and Kashmir. Realizing
        MOHD. AYUB DAR v. STATE OF J & K                     931
               [V.S. SIRPURKAR, J.]

this, Shri Sushil Kumar, learned Senior Counsel did not              A
seriously press this objection, though considerable arguments
were tendered before the Court earlier. In that view of the
matter, the first question raised by learned Senior Counsel Shri
Sushil Kumar is decided against the defence.
                                                                     B
     11. The main thrust of the argument of the learned Senior
Counsel appearing on behalf of the appellant was that the
prosecution has failed to prove the offence u/s. 302 of the RPC
independently of the confession. It was urged that, if the
confession is ignored, then there would remain no material to        C
involve the accused. It is pointed out that the accused also stood
convicted for the offence u/s. 3 (3) of the TADA Act, wherein
he was awarded a punishment of five years and to pay a fine
of Rs.5,000/- in default to suffer further imprisonment for six
months. It is pointed out that the accused had already served
out the sentence of five years. The learned Senior Counsel,          D
therefore, did not seriously challenge his conviction u/s. 3 (3)
of the TADA Act and instead, concentrated on the conviction
for the offence u/s. 302 of the RPC. It was pointed out to us
that there was no material to hold that the accused ever
conspired or was a part of conspiracy to commit murder of            E·
Moulvi Farooq. The learned Senior Counsel urged that there
was practically no evidence and the oral evidence tendered on
behalf of the prosecution to prove the guilt of the appellant for
both the offences was hopelessly vague and could not have
been relied upon by the trial Court to convict the appellant0f       F
both the offences. The learned Senior Counsel took us through
the evidence of prosecution witnesses and urged that the
evidence of the witnesses is wholly unreliable and took the
prosecution nowhere. By way of additional submission, the
learned Senior Counsel urged that the trial Court erred in relying   G
upon the confession recorded by A. K. Suri (PW-2) as the said
confession could not have been accepted to be a genuine
confession. It was urged that the said confession was neither
in the language of the accused nor the accused had ever made
any such confession, much less before the witness. It was then       H
    932      SUPREME COURT REPORTS                     [2010] 8 S.C.R.


A   pointed out that the original of the Confession made was also
    not available nor was placed before the Court. It was further
    suggested that the oral evidence runs counter to the statement
    made in the confession and therefore, the confession was
    untrustworthy.
B
        12. Before considering the confession allegedly made by
  the appellant, we would take the stock of criticism made against
  the oral evidence. But even before that, to put the record
  straight, we would choose to place the clear-cut language of
  Section 3 (3) of the TADA Act, for which the appellant stands
C convicted. Section 3, sub section (3) of the TADA Act provides
  as under:

          "whoever conspires or attempts to commit, or advocates,
          abets, advises or incites or knowingly facilitates the
D         commission of, a terrorist act or any act preparatory to a
          terrorist act, shall be punishable with imprisonment for a
          term which shall not be less than five years but which may
          extend to imprisonment for life and shall also be liable to
          fine."
E
         13. We have carefully examined the appeal memo filed u/
    s. 19 of the TADA Act. Very strangely, we do not find any
    challenge to the conviction u/s. 3 (3) of the TADA Act. All
    through, the challenge is to the conviction for the offence u/s.
    302, as also to Section 120-B r/w. Section 3 of the RPC.
F   Conviction u/s. 3(3) of the TADA Act was not seriously
    challenged by Shri Sushi! Kumar, learned Senior Counsel;
    perhaps, because the accused has already suffered more than
    five years of imprisonment, which was the sentence awarded
    to him for that offence.
G
         14. It is in the backdrop of this factual situation that the oral
    evidence would have to be considered.

       15. It was not seriously contested that Moulvi Farooq died
H of bullet injuries and that this was a case of homicidal death.
        MOHD. AYUB DAR v. STATE OF J & K                    933
               [VS. SIRPURKAR, J.]

The first relevant witness amongst those who were present at       A
the time of incident is Nazir Ahmed Dar S/o Mohd. Abdulla Dar
(PW-11 ). He was a family servant in the house of Moulvi Shafat,
who was the brother-in-law of Moulvi Farooq. He heard the
sound of fire and went to see as to whether the sound of fire
had come. He saw two persons jumping from the southern wall        B
of Moulvi Farooq and going towards the southern side. He
helped in arranging a vehicle and admitting Moulvi Farooq in
the hospital. He was declared hostile as far as he failed to
identify the accused. However, he admitted that he did not
remember whether even the third person had also jumped from        c
the wall. He also did not remember whether he has given
description of the first man whom he saw jumping over the wall.
He categorically suggested that the accused person in the
Court was not there. His evidence is, therefore, of no
consequence for the prosecution. The evidence of Zahid Ali
                                                                   D
Lone (PW-13), S/o Habib-ullah Lone, an Advocate by
profession, is also of no consequence as he refused to even
identify the accused and asserted that he did not see the
accused. Mohd. Yasin s/o. Misri Khan (PW-14) was on the
guard duty at the bungalow of Moulvi Farooq. In his presence,
                                                                   E
empty cartridge cover was seized from the courtyard of Moulvi
Farooq by one Gunwant Singh. The witnesses so far
considered by us only go to show that Moulvi Farooq had died
homicidal death due to fire and some three persons had
entered his house on that day, who escaped.
                                                                   F
     16. The evidence of Salam-id-Din S/o Mohd. Maqbool
Shah (PW-15) is also of no consequence as he had neither
seen the deceased nor the assailants. He only came to know
about death of Moulvi Farooq. This witness was the Public
Relations Officer of Moulvi Farooq. Mohd. Maqbul Shah S/o          G
Khazir Muhammad Shah (PW-16) was the peon of Moulvi
Farooq, but he was not on the spot when the incident took
place. Much was made of the evidence of this witness that he
had not identified the two persons who had come to Moulvi
Farooq in the morning. However, it is clear that the two persons   H
    934     SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   that he was speaking about could not have been the accused
    persons as they had come at 9 O'clock to Moulvi's place and
    it is nobody's case that the accused persons had come at 9
    O'clock in the morning. He had acted as a panch witness also.
    Saidur Rehman s/o. Amir Din (PW-17) was specifically referred
B   by Shri Sushil Kumar, learned Senior Counsel. This witness
    was his Public Relations Officer (PRO)-cum-Personal Assistant
    (PA). According to him, after the death of Moulvi Farooq, he
    continued to work as a P.R.O. of his son Moulvi Umar Farooq.
    He claimed that, on the fateful day, his peon informed that three
c   persons wanted to meet Moulvi Saheb. They were brought in
    and were made to sit in the Office. Their names were asked
    and one of them stated his name to be Guizar Farooq. He did
    not remember the other two names. He claims that he made
    the name slip of Guizar Farooq with his own pen and sent the
    same to Moulvi Saheb. The said slip (Exhibit D-16) was shown
0
    to him. He identified the same. He also identified his own
    signature. According to him, all the three persons went inside.
    He was engaged in conversation on telephone. Then he heard
    the sound of fire and suddenly the door of Moulvi Saheb's room
    opened and those persons fled away. He saw that Moulvi
E   Farooq was lying in a pool of blood. He then spoke about
    Moulvi Farooq being transfered to the hospital and his death.
    He has confirmed that, while fleeing away, he saw a revolver
    in the hand of one of the boys. He also confirmed that the peon
    Gulam caught hold of one of the men, but he got away while
F   fleeing himself. Even this witness has not identified the
    accused/appellant in the Court. He specifically contended that,
    since the incident was 13 years old, it would be difficult for him
    to identify any of the three persons. He specifically stated that
    there was nobody amongst them present in the Court. In fact,
G   much could have been done by cross-examining this witness
    by the prosecution for the reasons unknown. Even that was not
    done.

      17. Amjad Parvez Munir was examined as PW-18 who
H spoke about the seizures and the panchas. PW-19 is Javaid
       MOHD. AYUB DAR v. STATE OF J & K                    935
              [V.S. SIRPURKAR, J.]

Firdous S/o Alam Din, who is resident of Lucknow and was a        A
Professor working in the Kashmir University. There is nothing
that he has spoken about the accused. In fact, we do not know
why he was cross-examined. Same is the story about Shafat
Ahmad (PW-20) S/o Late Moulvi Gulam Rasool, who is brother-
in-law of de.ceased Late Moulvi Mohd. Farooq. He also did not     B
see any man, though he heard the noise of fire-shots. His
evidence also would be of no consequence except to prove that
Moulvi Farooq was shot at and that he died in the hospital.
Mohd. Tariq s/o. Gulam Hussain (PW-21) is another witness
who is a witness on seizure of cover of bullet from the spot.     c
Nothing has come out in his cross-examination. Methlas Kumar
Jha is another witness who is posted as a Dy.S.P. CBI SFC II.
He had acted as an Investigating Officer. He claimed to have
received the FIR copy on 12.6.1990. He spoke about the
murder having been admitted by Hizbul Mujahideen
                                                                  D
organisation. He further spoke that Late Abdullah Bangroo,
Ajmal Khan, Bilal, lshfaq i.e. present appellant and Abdul
Rehman Shigan were the accused of murder and that they
entered into conspiracy to kill Moulvi Farooq. He then referred
to the arrest made of the appellant by Delhi Police. He went to
                                                                  E
arrest Ayub Dar/present appellant in Delhi and brought him to
Srinagar on police remand. He then asserted that, during the
investigation, Ayub Dar confessed and stated that he wanted
to make statement. He was then produced before the S.P. for
recording his statement. He then confirmed that the statement
was then recorded by the S.P. He identified the accused as        F
the same person who was arrested and who gave his statement
u/s. 15 of the TADA Act, which was recorded by the S.P. He
pointed out that he also got recorded statement of accused
Abdul Rehman Shigan u/s. 15 of the TADA Act as he was
already arrested in some other case, in pursuance of the          G
request made by accused Abdul Rehman Shigan. He was
extensively cross-examined by the defence. He claimed to have
received the whole file (Exhibit D-2) from Parvaiz Mirza SHO,
P.S. Nageen. He identified the photo copy of FIR which was
written in 19 lines. He also confirmed that the copy of FIR was   H
   936      SUPREME COURT REPORTS                 (2010] 8 S.C.R.


A sent to the Magistrate. He identified the FIR. Several
  inadmissible questions seem to have been asked to this
  witness about the statements recorded u/s. 161, which are of
  no consequence. However, all that can be said about this
  witness is that he went to arrest the accused and produced him
B before the S.P. for recording his statement. There is no question
  asked on that aspect. It has again and again come in the cross-
  examination that he had produced the accused/appellant for
  recording his statement under the TADA Act; that the accused/
  appellant was under his custody and that his statement was
C recorded by the S.P. He asserted that the accused had
  requested him verbally for recording his statement and he also
  verbally brought the request of the accused to the attention of
  the S.P. According to him, the statement of accused was
  recorded on 27.6.1991 when the accused was produced at 11
  O'clock in the morning before the S.P. for recording his
0
  statement. He claimed that he did not remain present there.
  After his statement was recorded, the accused was taken away
  by this witness. He also had collected second copy of the
  statement. In short, it cannot be said that the witnesses have
  identified the accused as one of the three persons who had
E killed Moulvi Farooq. Shri Sushi! Kumar, learned Senior
  Counsel, therefore, is undoubtedly right when he says that if the
  other evidence is taken into account de-hors of the confession
  made, the prosecution cannot claim to have proved the offence
  that the accused/appellant was one of the accused persons
F present along with the two other accused persons who had fired
  at Moulvi Farooq.

         18. However, one thing is certain that the prosecution has
  been able to prove homicidal death of Moulvi Farooq by being
G shot at. Prosecution has proved that, on that day, at about
  10.30, three persons had come. They had gone to the room of
  Moulvi Farooq and had fired. It is also proved that, it is due to
  those injuries that Moulvi Farooq died a homicidal death. True
  it is that no post mortem was conducted; however, prosecution
H has given proper explanation that the post mortem could not
        MOHD. AYUB DAR v. STATE OF J & K                       937
               [V.S. SIRPURKAR, J.]

have been conducted due to angry public reaction. However,             A
in-spite of that, there is good evidence to suggest that Moulvi
Farooq died of the bullet injuries almost immediately after he
was fired. All this could not have been possible unless the
assailants had entered into conspiracy to murder Moulvi
Farooq. It was in pursuance of that conspiracy alone that the          B
assailants entered the chamber of Moulvi Farooq and fired at
him. The evidence of P.R.O. is very clear in that context. The
only question to be considered is whether this appellant was
one of assailants. Seeing the prosecution evidence as it is, if
all the three accused came together and approached the                 c
chamber of Moulvi Farooq and one of them fired at him, there
will be no question of only the individual liability. Everything was
clear as sun-shine that three had come not with an idea to chat
with Moulvi Farooq or to seek any favour from him, but they had
come specifically with a specific design to eliminate Moulvi           D
Farooq. We, therefore, do not find anything wrong in the verdict
of guilt given by the trial Court so far as Section 3 (3) of the
TADA Act is concerned. However, the question would still
remain as to whether the appellant/accused was one of the
assailants. That could have been proved by direct evidence             E
firstly or alternatively or in addition to it, by the confession
statement recorded u/s. 15 of the TADA Act. If the confession
statement stands to the Acid test on credibility, voluntariness
and truthfulness, then that would be sufficient to pin the guilt of
the accused. Therefore, it is now to be examined as to whether
the trial Court was justified in relying upon the statement u/s.       F
15 of the TADA Act.

     19. Shri Sushil Kumar, learned Senior Counsel, firstly
urged that the confession was s~rouded in mystery inasmuch
as it was not clear as to whether it was recorded and under            G
what circumstances. He clearly criticized the same saying that
it could have been recorded on the video tapes, but was not
done. He also pointed out that the confession was not recorded
in the language of accused/appellant nor was it a true
representation of what was stated. He pointed out that it was          H
    938     SUPREME COURT REPORTS                [2010] 8 S.C.R.


A contradictory with the oral evidence and there were innate
  contradictions which went on to disprove its very credibility.
  Relying on Rule 15 (2) of the TADA Act, he pointed out that it
  was explained or interpreted to the maker. He further urged that
  the original of the confession is not on record. It was further
B urged that the whole confession is destroyed by the other
  evidence. Shri Sushil Kumar pointed out that, the confession,
  as it stands proved, is in English language and there was a
  clear-cut admission on the part of A. K. Suri (PW-2) that he had
  not explained the same to the accused. Basically, the argument
c of Shri Sushit Kumar was that the confession could not have
  been relied upon, insofar as the offences under the R.P.C. were
  concerned. According to the learned Counsel, the confession
  could be relied upon only for the offences under the TADA Act.
  The learned Counsel heavily relied on the language of Section
D 15.
       20. As against this, Shri Rawal, learned ASG urged that
  there was clear-cut evidence on record that the accused spoke
  in English, in which language he confessed also. He further
  pointed out that necessary caution was administered to the
E accused inasmuch as he was told that the said confession
  could be used in evidence against the accused/appellant.
  Learned ASG further contended that necessary circumstances
  were explained and signature was appended to the confession
  and, therefore, there was no question of rejecting the
F confession. As regards the last point urged by Shri Sushil
  Kumar, the learned ASG has pointed out that the question of
  admissibility of confession against the offences under the RPC
  was no more res-integra and was finally answered by this Court
  in a decision of Five Judges Bench reported in Kartar Singh
G Vs. State of Punjab [1994 (3) SCC 569]. Besides this, Shri
  Rawal also pointed out that the oral evidence regarding the
  confession by A. K. Suri (PW-2) remained unchallenged in the
  cross-examination on behalf of the defence. He also pointed
  out that the confession was corroborated as the chit (Exhibit
H
         MOHD. AYUB DAR v. STATE OF J & K                      939
                [V.S. SIRPURKAR, J.]

D-16) was brought on record. He answered the criticism of the          A
learned Senior Counsel by pointing out that some witnesses
were not examined as they were either dead or it was obvious
that they were not present at the time of incident. It is this basis
that the confession is now to be tested.
                                                                       B
        21. It will be better first to examine in detail the oral
  evidence of A.K. Suri (PW-2). The said witness deposed
  regarding presence of the accused in the Court on 27.6.1!:191
  and about his making confessional statement. The witness
  reiterated that the accused was asked number of questions            C
. regarding free will on the part of accused to make a confession.
  He also specifically asserted that he had informed the accused
  that he was not bound to make a confessional statement1 and
  that if he makes the one, the same would be read against him.
  The witness also reiterated that the accused was given time
  to ponder over and even after pondering over the issue of            D
  making the confessional statement, the accused, of his own free
  will, was prepared to give confessional statement which was
  recorded in his own words by the witness. The witness also
  identified signature of the accused. He had also produced a
  questionnaire and asserted that, even after the questionnaire        E
  was given to the accused, one and half hours' time was given
  to the accused to ponder over, which opportunity was utilized
  by the accused. The witness first proved his writing about being
  satisfied that the accused was prepared to offer confessional
  statement of his own free will and then proved the statement.        F
  He also reiterated that the accused put his signature on each
  and every page and after the statement was recorded, it was
  read over and was understood by the acr.:::.;sed, who, only after
  accepting the same to be correci, j.>Ut the signatures. The
  witness was subjected to cross-examination by the defence.           G
  However, we are constrained to observe that his cross-
  examination was a lackluster. Some confusion was tried to be
  created regarding Exh. PWAK, a carbon copy and
  Exh.PWAK1 also not being done over the original and being
  made over a carbon copy. However, after seeing the documents         H
    940     SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A and hearing Shri Rawal, we are convinced that there was no
  confusion and the original confession as well as the preliminary
  documents were made over to the Court. Some unnecessary
  questions were put to the effect that whether the witness was
  in uniform while recording the statement. Some insignificant
B circumstances were also brought that the word 'voluntary' was
  not written while recording preparedness of the appellant to
  record the confession. He asserted that he had dispatched the
  confessional statement report. The last suggestion given to the
  witness in the cross-examination was almost fatal to the
c defence which was to the effect that he did not interpret
  statement of the accused because the same was written in the
  language in which the accused gave it. He was again
  specifically asked about his satisfaction statement being on
  page No.10, to which he specifically answered that the accused
  had finished his statement at pag!3 9 and therefore, he wrote
0
  his satisfaction at page No.10. Again, almost at the end of the
  cross-examination, it has come that the witness had taken the
  statement in English and when the accused was talking to the
  witness, he was taking in English. In short, the whole cross-
  examination does not dent the case of the prosecution and it
E can be inferred that the criticism against the confession that it
  was not recorded in the language of the accused is not justified.
  There is absolutely no effort made by the defence to establish
  that the statement was not made in the language of the accused
  persons. Much was said by Shri Sushil Kumar, learned Senior
F Counsel that the Original statement is not on record. However,
  Shri Rawal, learned ASG painstakingly pointed out from the
  record that the confession cannot be foiled on that count and
  the original confession was very much available on the record.

G      22. Shri Sushil Kumar, learned Senior Counsel, had
  specifically raised a question regarding witnesses Gunwant
  Singh and Ghulam Qadir Sofi not being examined to
  corroborate any role ascribed to them. According to the learned
  Senior Counsel, non-examination of Gunwant Singh and
H Ghulam Qadir Sofi was extremely material and created a dent
         MOHD. AYUB DAR v. STATE OF J & K                  941
                [V.S. SIRPURKAR, J.]

 in the prosecution story. Shri Rawal, learned ASG pointed out A
 that, looking at the overall evidence of the witnesses, more
 particularly, all those who were present at the spot, it cannot
 be gathered that Gunwant Singh was pr.esent at the time of
 incident. Insofar as the evidence of Ghulam Qadir Sofi is
 concerned, it was pointed out by Saidur Rehman (PW-17) that B
 said Ghulam Qadir Sofi was already dead at the time of trial.
 Therefore, the criticism levelled by the learned defence Counsel
 would be of no consequence.

         23. Shri Sushi! Kumar then urged that the so-called
   confession given by this appellant in other matter was C
  disbelieved right upto the Supreme Court. He relied upon the
  decision in Mohd. Ayubdhar & Anr. Vs. State of NCT of Delhi
   [2000 (10) sec 296]. This was also a case where the charges
  were under Section 3, 4 and 5 of TADA Act alongwith Section
   302 read with Section 120 IPC. This was a case where the D
   cassette wherein the confession was recorded was destroyed.
   From the second cassette, it was seen that the concerned
   officer had not given any warning to the accused that he was
   not bound to make the statement. The officer also had
   categorically admitted that no specific warning had been given E
,,JO-the accused. It was on that basis that this Court did not
   choose to rely upon the confession?Shri Sushi! Kumar heavily
   relied on this ruling and urged to take the same course. We
   have already given our reasons for accepting the confession.
   In that view, we cannot rely on this judgment. We are unable to F
   accept this contention for the simple reason that the facts of
   the said case in the reported decision are neither relevant nor
   admissible for the present purposes. Shri Sushil Kumar also
   relied on a reported decision in Prakash Kumar @ Prakash
   Bhutto Vs. State of Gujarat [2007 (4) SCC 266] wherein the G
   confession was disbelieved. We do not find any similarity
   between the facts in the afore-mentioned reported decision and
   the facts which have come in the present matter. The confession
   in this case was disbelieved on merits and it was made by the
   co-accused. The facts are clearly distinguishable. The learned H
    942      SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   Senior Counsel further relied on Abdulvahab Abdul Majid
    Shaikh & Ors. Vs. State of Gujarat etc. etc. (2007 (9) SCC
    293], more particularly on observations in Paragraphs 9 and
    13 thereof. However, the observations in Para 9 relate to the
    confession of the co-accused and its admissibility and
B   reliability. The Court, in fact, relied upon the confession taking
    the view that there was no coercion, threat or any undue
    influence to the accused. The other facts are not apposite to
    the controversy. We, therefore, reject the contention of the
    learned Senior Counsel.
c       24. Our attention was also drawn to the Constitution Bench
  decision reported in Kartar Singh Vs. State of Punjab [1994
  (3) sec 569] and more particularly, to the paragraphs 263 and
  265 thereof. There can be no question about these principles
  which have been suggested by way of guidelines by this Court.
D In fact, at the end of the Paragraph 263 of the judgment, the
  Court has recommended that the Central Government should
  take note of the guidelines and incorporate them by appropriate
  amendments in the Act and the Rules. We have not been
  pointed out any such amendments either in the Act or in the
E Rules. However, when we see the guidelines laid down and
  compare them with the care taken in this case about the
  confession, we feel compl'Mely satisfied that the confession was
  properly recorded and it was also recorded in the free
  atmosphere, as A.K. Suri (PW-2) had given sufficient time to
F the accused for the reflection. The accused had also at no point
  of time complained regarding any coercion to any authority. The
  defence, as is apparent from examination of the appellant-
  accused under Section 313 of the Cr.P.C., is that he had not
  given any statement at all. In view of this, we do not think that
G the observations of this Court in Paragraphs 263 and 265 of
  the aforementioned decision would be of any consequence for
  the decision of this matter. In fact, in Paragraph 406 of the
  judgment, this Court has spoken about the importance of
  confession and the various aspects attached to it such as
H appearance of objectivity and necessity of removing the
        MOHD. AYUB DAR v. STATE OF J & K                     943
               [V.S. SIRPURKAR, J.]

suspicion and has gone to the extent of saying that the provision    A
itself is unfair, unjust and unconscionable, offending Articles 14
and 21 of the Constitution of India. This was in a minority
judgment by Hon'ble K. Ramaswamy, J. Hon'ble Sahai, J.,
however, in Paragraph 456, went on to observe:-
                                                                     B
     "The word "offence' used in the article should be given its
     ordinary meaning. It applies as much to an offence
     committed under TADA as under any other Act. The word
     'compelled' ordinarily means 'by force'. This may take
     place positively and negatively. When one forces one to         C
     act in a manner desired by him it is compelling him to do
     that thing."

      His Lordship further observed that a confession made by
an accused or obtained by him under coercion, suffers from
infirmity unless it is made freely and voluntarily. His Lordship · D
then found that Section 15 was violative of Articles 20(3) and
21 of the Constitution. Again the observations, though very
strongly worded, do not become binding since constitutionality
of Section 15 has been upheld by the majority judgment
authored by Hon'ble Pandian, J. We are quite mindful of the E
strength of the language used in the opinions expressed by two
learned Judges. However, even with that, we cannot say that
this confession suffers from any defects.

      25. Similarly, our attention was also invited to a decision F
in State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru etc.
etc. [2005 (11) SCC 600] (more particularly to para 185). This
was again a judgment concerning the terrorist attack on the
Parliament of India by five fidayeen militants. It may immediately
be observed that this was not a case under TADA Act, but
under the Prevention of Terrorism Act (POTA), 2002. Very G
heavy reliance was placed on Paragraph 185 therein, which
deals with the lapses and violations of procedural safeguards
guaranteed in the statute, on account of which the confessional
statement of Afzal was not relied upon by this Court. The
learned Senior Counsel was at pains to point out that in this H
    944     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   case also, there were lapses and violations of procedural
    safeguards guaranteed in the statute. We, however, did not find
    any such lapses or violations which would affect the credibility
    of the confession. On the other hand, we found that the
    confession was fully acceptable and reliable.
B
        26. A reference was made to the decision in State through
    Superintendent of Police, CBI/SIT Vs. Nalini & Ors. (1999 (5)
    SCC 253]. However, we must observe that the learned Senior
    Counsel has not, in any manner, shown as to how any of the
    observations made therein apply to the present matter. We
C   would leave the matter at that.

         27. As against this, Shri Rawal, learned ASG highlighted
   two decisions before us, they being S.N. Dube Vs. N.B. Bhoir
 . & Ors. [2000 (2) SCC 254] and Ravinder Singh alias Bittu Vs.
D State of Maharashtra (2002 (9) SCC 55]. The other two
   decisions relied upon by learned ASG are Lakeman Shah &
   Anr. Vs. State of W.B. etc. etc. [2001 (5) SCC 235] and
   Abdulvahab Abdul Majid Shaikh & Ors. Vs. State of Gujarat
   etc. etc. (cited supra). Shri Rawal pointed out that in the
E decision in S.N. Dube Vs. N.B. Bhoir & Ors. (cited supra), in
   fact, the confession was recorded in the police station and as
   such, the guidelines provided in Kartar Singh Vs. State of
   Punjab (cited supra) were not strictly adhered to. Further, our
   attention was invited to the observations made by this Court in
F the following terms:-

       "Therefore, merely because some of those guidelines were
  not followed while recording the confessions it cannot for that
  reason be held that the said confessions have lost their
  evidentiary value. If while recording the confessions the police
G officer had followed all those guidelines also then that would
  have been a circumstance helpful in inferring that the
  confessions were made after full understanding and voluntarily."

       It would, therefore, be clear, as rightly contended by Shri
H   Rawal that merely because guidelines in Kartar Singh Vs.
          MOHD. AYUB DAR v. STATE OF J & K                         945
                 [V.S. SIRPURKAR, J.]

   State of Punjab (cited supra) were not fully followed, that by itself   A
   does not wipe out the confession recorded. We have already
  given our reasons for holding that the confession was recorded
   by AK. Suri (PW-2) taking full care and cautions which were
   required to observe while recording the confession. In Ravinder
   Singh alias Bittu Vs. State of Maharashtra (cited supra), it has        B
  been observed in Paragraph 19 that if the confession made
   by the accused is voluntary and truthful and relates to the
  accused himself, then no further corroboration is necessary and
   a conviction of the accused can be solely based on it. It has
  also been observed that such confessional statement is                   c
   admissible as a substantive piece of evidence. It was further
  observed that the said confession need not be tested for the
  contradictions to be found in the confession of the co-accused.
  It is for that reason that even if the other oral evidence goes
  counter to the statements made in the confession, one's
                                                                           D
  confession can be found to be voluntary and reliable and it can
  become the basis of the conviction. In this case, there is ample
  corroboration to the confession in the oral evidence as well as
  the documentary evidence in shape of a chit, which is referred
  to in the said confession. There is a clear reference that the
                                                                           E
   Personal Assistant, who was a non-Kashmiri and kept a beard,
  had sent a slip inside. Ultimately, that slip was found by the
  police, which corroborate the contents in the confession. In our
  opinion, that is a sufficient corroboration to the confession. In
  Lakeman Shah & Anr. Vs. State of W.B. etc. etc. (cited supra),
  this Court considered the confession which was under Section             F
. 164 Cr.P.C. Therefore, this case is not of much importance to
  us. In the last referred case of Abdulvahab Abdul Majid Shaikh
  & Ors. Vs. State of Gujarat etc. etc. (cited supra), a plea was
  raised that though the Chief Judicial Magistrate was readily
  available to record the confession, the police officer recorded          G
  the confession himself. This Court, in Paragraph 9 of the said
  judgment, observed as follows:-

      "The crucial question is whether at the time when the
      accused was giving the statement he was subjected to                 H
    946      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A         coercion, threat or any undue influence or was offered any
          inducement to give any confession."

         The Court ultimately came to the conclusion that the
    confession did not suffer from these defects. In Paragraph 13
    of the said judgment, the question of availability of the Chief
8
    Judicial Magistrate was discussed. Further the Court
    observed:-

          "Under Section 15 of the TADA, a police officer is
          permitted to record the confessional statement of the
C         accused and certain strict procedure is prescribed.
          The appellants have no case that this procedure has in any
          way been violated. Merely because the confession was
          retracted, it may not be presumed that the same was not
          voluntary."
D
        The confession was accepted by this Court and the appeal
    was dismissed.

       28. All these cases suggest that the only test which the
  Court has to apply is whether the confession was voluntary and
E free of coercion, threat or inducement and whether sufficient
  caution is taken by the police officer who recorded the
  confession. Once the confession passes that test, it can
  become the basis of the conviction. We are completely
  convinced that the confession in this case was free from all the
F aforementioned defects and was voluntary.

       29. We have gone through the complete confession as was
  given and we are of the clear opinion that the said confession
  was totally voluntary and all the necessary precautions were
G taken while recording the same. We are, therefore, of the
  opinion that the appellant had, in fact, given the confession
  voluntarily and he was not, in any way, compelled to give the
  same. Once that position is clear, it only remains to be seen
  as to whether the said confession could be relied on exclusively
H for proving the offence u/s. 302 of the RPC.
        MOHD. AYUB DAR v. STATE OF J & K                       947
               [V.S. SIRPURKAR, J.]

      30. A very substantial argument was raised before us that,       A
considering the language of Section 15 of the TADA Act, the
said confession could have been used only against the TADA
Act offences namely Section 3 of the TADA Act which was
charged against the accused/appellant and it cannot be used
for a Non-TADA offence like Section 302 of the RPC and it              B
could not even be read in order to prove the said offence. This
question is already settled against the defence as we have
earlier pointed out. Shri Sushi! Kumar urged that we should at
least make a reference to the larger Bench as the case was
not correctly decided nor the Judgment was properly given. We          c
are unable to accept the argument of Shri Sushi! Kumar. The
aforementioned judgment is by a three Judge Bench and is
binding on us. This is apart from the fact that the facts relating
to Section 3 (3) of the TADA Act and the facts relating to
Section 302 of RPC are completely inter-mixed in this matter.          D
They are the part of the same transaction. A plain reading of
the confession clearly goes to show that the accused was guilty
of conspiring or attempting to commit or advocating, abetting,
advising or inciting or knowingly facilitating the commission of
a terrorist act or any act preparatory to a terrorist act. The act
of killing Moulvi Farooq comes within the definition of 'terrorist     E
act' as given in Section 2 (h) r/w. Section 3 (1) of the TADA
Act inasmuch as, in order to achieve the objectives as
described in Section 3 (1), Moulvi Farooq was put to death by
firing at him. The confession in ·clearest possible terms and in
detailed manner shows formation of a group of terrorists, who          F
were in all seven in number. The confession of accused refers
to the training in the use of fire arms and his visit to Pakistan
in the year 1989 by crossing the border from Chowkibal side
which is on Kupwara side. The appellant has given the whole
outfit including the names of leader and other companions and          G
the confession also refers to the fire arms brought by the group
of terrorists from Pakistan and the training which was for
bringing into effect the terrorist activities in the Kashmir valley.
The appellant then gives a graphic account of the five terrorists'
action in the years 1989 and 1990. The appellant also gives a          H
    948     SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A detailed account about the members in the group who had
  taken active part in those activities. The last activity was about
  killing of Mirwaiz Moulvi Farooq on 21.5.1991. While
  elaborating the 5th terrorist activity, it was confessed by the
  appellant that Moulvi Farooq was considered to be an agent
B of the CBI and the Government of India and two days prior to
  his death, one Abdulla Bangroo had ordered killing of Mohd.
  Farooq. At the time when these orders were given, Ajmal Khan
  and the appellant herein were with Abdullah Bangroo. It is clear
  from the confession that the whole modus operandi was
c discussed and after discussions, the task was given to himself,
  Bilal and lnayat. They had also visited the house of Moulvi
  Farooq and met.the Chowkidar five days prior to the incident.
  They again visited the house of deceased where the appellant
  had a talk with deceased Moulvi Farooq and the financial help
  which he had promised for, was sought. The date and time for
0
  further meeting was decided at that time itself. He then gave
  reasons for not killing Moulvi Farooq on that day itself.

        31. The appellant, thereafter, gave a complete story as to
  how they went to Moulvi's house and further that he was carrying
E a German pistol, lnayat was carrying a French pistol and Bilal
  was carrying a Chinese pistol. According to him, it was decided
  that it was Bilal who was to fire on Moulvi while appellant and
  lnayat were to give him protection from others. Detailed
  description is thereafter given as to how they went from Naidyar
F by Shikara by giving Rs.20/- to him and how they came to
  Durgah Hazratbal. It has then come in the confession that from
  Hazratbal they walked down to the house of Moulvi Farooq and
  met the Chowkidar whom they had met earlier. A very
  significant fact is then stated that, after they met the Personal
G Assistant of Moulvi Saheb, the said Personal Assistant gave
  a slip and the Mali who had taken the chit inside came out and
  informed that Moulvi Saheb was calling them inside. Therefore,
  they all got up from the chair and Bilal went inside the room of
  Moulvi, while the appellant and lnayat took positions and took
H out guns and lnayat had also fired one round after Bilal had
        MOHD. AYUB DAR v. STATE OF J & K                     949
               [V.S. SIRPURKAR, J.]

started firing inside Moulvi's room. The accused had also taken      A
active part in ordering others to put their hands up1 Thereafter,
they ran away. He also confirmed that his shirt was held by
Gulam Qadir Sofi~_but he got himself released and ran away.
The details of the act, of their movements after the act and about
the chit totally convince that this confession of the accused was    B
not only a voluntary confession but was truthful one. Anxiety on
the part of the appellant to given press note after the act has
also figured in the confession. It has also come in the confession
of the appellant herein that the appellant got Rs.35,000/- and
he, therefore, went to Delhi to terrorise the Central Government.    C
He then also referred to his activity in Delhi and his total stay
in Delhi. It has come in the confession that their group carried
out five bomb blasts in Delhi. A graphic description thereof has
also come in the confession. It has also come in the confession
that he had visited Pakistan, Lahore and Muzzaffarabad to
meet other members of the group namely Hyder, Hanif Hyder,
                                                                     D
Nasir Khan and Yusuf Bangroo on a fake passport. The said
confession also gives details that the said passport was issued
in Sikar, Rajastan with Visa of Pakistan. He also gave details
of the dress which he was wearing on the day when Moulvi was
put to death. All these details cannot be said to simply have        E
been imagined by A. K. Suri (PW 2) so as to include the same
in the confession of the accused. In his examination under
Section 313 of the Code of Criminal Procedure, the appellant
has .flatly denied of having made any statement, much less
confessional statement to Shri AK.Suri. His answer to a              F
question is as follows :

     "I was arrested by the Delhi. I didn't make any statement
     before Mr.Suri. Mr. Suri has indulged in making a wrong
     statement. In none of the cases, I made my statement. Mr.       G
     Suri, Company Officer of a case was a Supervising Officer.
     Whatever used to come in his heart, he used to do that.
     He was conducting all proceedings at Delhi. "

     The afore-cited answer suggests that the appellant, at no
                                                                     H
    950       SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A   point of time, had ever made any statement to Shri A. K. Suri
    either in Delhi or in Srinagar. Very strangely, however, in
    Ground A of the appeal, a portion of confessional statement is
    quoted as under:

          "lnayat came out of P. A.'s room and had also fired one
B         round as Bilal started firing inside Moulvi's room. I had also
          taken up the position told the occupant of the P.A. 's room
          to hands up. "

          Relying on this, the ground further says as under:
c         "Such a conviction and sentence is prima facie wrong as
          the appellant at the best could be held guilty of abetting
          the crime of murder and not committing murder. Therefore,
          the life sentence imposed upon him under Section 302
          RPC is wrong in law ....... "
D
       32. In view of the above, it is clear that the appellant herein
  on one hand has chosen to rely upon a part of the confession
  and on the other hand, he asserts that he had, at no point of
  time, made any confessional statement. We do not wish to rely
E on this circumstance. However, we have made mention of it only
  to show hollowness of defence on the part of the appellant.

        33. Even otherwise, we are fully satisfied that the
  confession was indeed made by the appellant and the details
F given in the confession and the meticulous planning that went
  behind committing murder of Moulvi Farooq, which has been
  reflected in the confession, not only render it voluntary, but
  truthful also. We are thoroughly convinced that this confession
  is not only a good, voluntary and truthful confession but a reliable
  one also and the trial Court has committed no mistake
G
  whatsoever in relying upon the said confession. Once we
  accept the confession made u/s. 15 of the TADA Act, there is
  no necessity of any other evidence being required. A very
  halting argument was made before us that the charge was only
  for the conspiracy and it was clear that the accused was
H
         MOHD. AYUB DAR v. STATE OF J & K              951
                [V.S. SIRPURKAR, J.]

convicted for the offence u/s. 302 of RPG simplicitor. We do A
not think that such an argument can be macie when the appellant
has taken part in the conspiracy. The way the appellant himself
has worked in the success of the conspiracy, the way he has
handled the guns and accompanied two other assailants to the
house of Mif'V{aiz Moulvi Faooq and the manner in which the B
plan was executed convince us that the order is absolutely
correct. We have not been able to see nor the learned Senior
Counsel appearing on behalf of the appellant is able to point
out any prejudice being caused on account of defect of charge,
which question was not even argued before the trial Court. We c
do not find any merit in the instant appeal and proceed to
dismiss the same. Consequently, the appeal is dismissed.

K.K.T.                                  Appeal dismissed.