MOHAMMAD IRFAN versus STATE OF KARNATAKA on 11 July 2022

[2022] 10 S.C.R. 827

MOHAMMAD IRFAN

v.

STATE OF KARNATAKA

(Criminal Appeal Nos. 201-202 of 2018)

JULY 11, 2022

[UDAY UMESH LALIT, HEMANT GUPTA ANDS. RAVINDRA BHAT, JJ.]

Penal Code, 1860: ss.121 and 121 A – Conspiracy to commitoffences punishable by s.121 – Prosecution case that theInvestigating Officer, while investigating incident of shoot-outoccurred at Indian Institute of Science, Bangalore, came to knowabout a larger conspiracy concerning Lasker-e-Toiba (LeT), bannedmilitant organization in India – Registration of FIR that accusedpersons A-1 to A-6, active members of LeT entered into a criminalconspiracy to cause large scale destruction of public property, multi-national companies, places of worships, by causing bombexplosions, attacks on innocent people; and the accused havereported to have acquired and collected explosive substances andother necessary arms and ammunitions and conspired to wage waragainst the Government of India– Trial court convicted andsentenced A1 to A6 u/s 120 B, 121, and 121 A, ss. 5 and 6 of theExplosive Substances Act,1908 and ss. 25, 26 of the Arms Act, 1959however acquitted them for offences punishable u/ss. 10 and 13 ofthe Unlawful Activities Prevention Act, 1967, and ss. 153A, 153-BIPC ,whereas A-7 was acquitted of all the charges – High Courtmodified the conviction and sentence of the accused – In appealbefore this Court as regards, A-1 and A-4 to A-6, held: There was noinfirmity in the sanction obtained u/s. 196 CrPC – Though theprosecution witnesses did not support the prosecution case fully, someof the features of the prosecution case were substantiated throughtheir testimonies– Recoveries of books and literature carryinginflammatory content and messages supported by the Panch witnessesand the Panchanamas – Diary recovered from A-2 clearly establishedthe intent of the accused who had assembled, who held meetings andhad appended their signatures which were identified by handwritingexpert – Large quantity of explosive substances recovered fromaccused shows the potential danger – Presence of A-1 on the fateful

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Aday completely established and his presence assumes significanceas he was not a local person – Conspiracy, the intent of which wasclear from the minutes of the meetings and the consequentialacquisition of arms and explosives to effectuate the purpose andintent of said conspiracy, would come well within the latter part ofthe conspiracy dealt with in s. 121A – As the explanation to s. 121ABdiscloses, for an offence of conspiracy, it would not be necessarythat any act or illegal omission must take place in pursuance thereof– Thus, even though no untoward incident had actually happenedas a result of the conspiracy, the matter would still come within thefour corners of s. 121A – Conviction against the accused u/s. 121ACdoes not call for any interference – On facts, the High Court rightlyenhanced the sentence from seven years to life imprisonment –Explosive Substances Act,1908 – s. 5 – Arms Act,1959 – ss. 25 and26 – Unlawful activities (Prevention) Act, 1967 – ss. 10 and 13 –Code of Criminal Procedure, 1973 – s.196.

DSentence/Sentencing: Enhancement of quantum of punishmentby the High Court from seven years to that of life imprisonment foroffence punishable u/s. 121 A IPC – Justification of – Held: Ifconspiracy as entered into by the accused-members of LeT, to causelarge scale destruction of public property, multi-national companies,places of worships, by causing bomb explosions, attacks on innocentEpeople, had been carried out, it would have resulted in great damageand prejudice to the life and well-being of the members of the generalpublic as well as loss to the public property – Such conspiracies tocause danger to public property or to the safety of the members ofthe general public ought to be dealt with strictly – Thus, the HighFCourt justified in enhancing the sentence – Penal Code, 1860 – s.121A.

Conclusion

Code of Criminal Procedure, 1973: s.196 – Prosecution foroffences against the State and for criminal conspiracy to commitsuch offence – Sanction u/s. 196 – Plea that in terms of s. 196, theGsanction to prosecute the accused for having committed offencepunishable inter alia under Chapter VI of the IPC was mandatoryand the sanction placed on record did not satisfy the requirements– Correctness and validity of the sanction accorded u/s.196 – Held:Matter was considered by the Office of the Home Minister and theChief Minister and consent was accorded to the proposal put up inH

usual course of business, whereafter, the communication wasaddressed by the Under Secretary – Thus, it cannot be said that thesanction was not accorded by the competent authorities – Sanctionin terms of s.196 was valid and proper.

Dismissing the appeals, the Court

HELD: 1.1 As regards the correctness and validity of thesanction accorded under Section 196 of the Code of CriminalProcedure, 1973, the facts on record as set out in the decision ofthe High Court disclose, that the matter was considered by theOffice of the Home Minister and the Chief Minister and consentwas accorded to the proposal put up in usual course of business,whereafter, the communication was addressed by the UnderSecretary. In the face of these facts, the submission that thesanction was not accorded by the competent authorities must berejected. Consistent with the findings rendered by the courtsbelow, the sanction in terms of Section 196 of the Code was validand proper. The matter regarding sanction accorded in respectof offences punishable under the Explosives Substances Act andthe Arms Act was also dealt with by the High Court in extensoand the conclusion arrived at does not call for any interference.[Para 30][879-E-G]

1.2. The evidence on record can be classified mainly asoral testimony of prosecution witness Nos. 1 to 8 and 13 andevidence regarding recoveries. It is true that prosecution witnessNos. 1 to 8 and 13 turned hostile and did not support the case ofprosecution fully. However, it emerges from their testimony thatsome of them were trustees of the trust, minutes book of whichwas produced on record. The witnesses accepted the fact thatthe meetings of the trust had taken place and that some of theaccused did attend the meetings. PW4 gave details about thepresence and participation in the meetings by various accusedincluding A-1 and deposed to the fact that said witness haddropped A-1 at the railway station on his bike. It is thus clearthat though these witnesses did not support the prosecution casefully, some of the features of the prosecution case weresubstantiated through the testimony of these witnesses. The lawon the point is clear that even if a witness is declared hostile, the A

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Aevidence of such witness cannot be rejected in toto but the correctapproach is to accept it to the extent his version is found to bedependable on a careful scrutiny thereof. Furthermore, therecoveries of books and literature were completely supportedby the concerned Panch witnesses and the Panchanamas onrecord. The books and literature did carry inflammatory contentBand messages. The translations of the original versions in Urduwere placed on record by the prosecution. The voluntarystatements which led to such recoveries and the recoveriesthemselves were also proved by the prosecution. One important

piece of material recovered from A-2 was the Diary. The tenorCand text of the contents were captured quite correctly by thetrial court in its judgment. The signatures of the concernedaccused were proved beyond any doubt through the evidence ofPW67, handwriting expert. It thus stood established that theaccused had assembled together with the intent as disclosed fromthe minutes of the meetings of the Trust. The explosiveDsubstances, details of which are given, were recovered from A-2,A-3, A-4 and A-6. Voluntary statements of said accused andconsequential recoveries effected through Panchas were also dulyproved by the prosecution. [Para 31][879-H; 880-A-G; 881-A]

1.3. From the facts on record, it emerges that on 10.12.2003,Ewhen a meeting was organized at the house of F at place ‘C’, itwas attended by A-1, A-2, A-4 and A-6 along with other membersincluding some of the Prosecution witnesses. The minutes of themeeting disclosed the intent and the objective with which thematerials, such as guns and bombs were to be procured orFcollected. The signatures appended below the minutes wereproved by PW-67, Hand Writing Expert. The presence of A-1 in‘C’ on the day in question was completely established. Hispresence assumes significance as he was not a local person. Thepresence of A-1 on the day in question was adverted to by some of the prosecution witnesses. It is true that apart from theseGpieces of evidence, nothing substantial could be pointed againstA-1 but his involvement in the scheme as one of the driving forcesfor the entire design, was quite evident. The intent and objectivedisclosed from the minutes of the meeting was carried forward inthe subsequent meetings. The recoveries made from and at theH

instance of the other accused show that the very intent and objectas discussed in the first meeting was being carried forward bythese accused with the acquisition and possession of the armsand ammunition. The kind of material recovered from them byitself shows the potential danger. Nothing was brought on recordto show the reason or the purpose for acquisition and possessionof such potentially dangerous material. These facts not only showthat the basic elements of the conspiracy stood well establishedbut also proved the involvement of A-1. Going by the law laiddown by this Court, A-1 cannot escape the liability only on theground that no arms and ammunition or any inflammatory materialor literature were actually recovered from him. [Para 34][886-A-H]

1.4. The minutes of the first meeting dated 10.12.2003 werewritten in Kannada language, at the end of which the signatureswere appended by all the concerned including A-1. As admittedby the Investigating Officer, A-1 did not understand Kannadalanguage. A serious objection was, therefore, raised aboutreliability of said document to fasten the liability on A-1. Thepresence of A-1 in ‘C’ on the relevant day stood well established.The fact that all the concerned accused got together on that dayin the house of PW-4 also stood established. The tenor of thediscussion in the meeting and the fact that it was not foundappropriate by some of the witnesses also found mention in thetestimony of the witnesses. The handwriting expert found thesignature to be that of A-1. In the premises, a mere submissionthat the signatures of the accused were obtained subsequently,without any foundation, cannot be entertained. The signatureswere definitely made in the circumstances suggested by theprosecution. [Para 35(A)][887-A-D]

1.5 The submission as regards the gap between the firstmeeting and the recovery of arms and explosives from some ofthe accused, it was highlighted that there was about three years’gap between these two circumstances and it was stressed thatthere was nothing on record that during this interregnum, A-1was in touch with any of the accused or had any role in procuringthe arms and explosives, which were eventually recovered AB

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Apursuant to disclosures made by the concerned accused. Theconspiracy, the basic features of which were structured in thefirst meeting of 2003, was a continuing one; which is evident fromthe minutes of the subsequent meetings and translation of theintent into procurement of arms and explosives. It can neitherbe stated that the thread which was running through subsequentBevents and circumstances was broken or that the link betweenthe first meeting and the subsequent stages was in any waysnapped. [Para 35(B)][887-E-H]

1.6 It was submitted that the case of the prosecution thatA-1 had signed the minutes of the first meeting was not put toCsaid accused during his examination under Section 313 of theCode. The record shows that questions about the report of PW-67, the handwriting expert, and about the meeting at ‘C’ and thatA-1 had gone to ‘C’ were put to the accused in his examinationunder Section 313 of the Code. These questions definitely invitedDthe attention of A-1 to the circumstances against him. Thesubstantive evidence about the opinion of the handwriting expertwhich had found the signature of A-1 below the minutes of thefirst meeting and the circumstances about the meeting at ‘C’ andthat A-1 had gone to ‘C’ were thus put to the accused. The instantsubmission, therefore, does not merit acceptance. [ParaE35(C)][888-A-D]

1.7 What constitutes an offence under Section 121 IPC isthe waging of war or attempt to wage war or abetting of waging ofsuch war against the Government of India. Section 121-A IPC,however, deals with conspiracy to commit offences punishableFunder Section 121 IPC as well as conspiracy to overawe by force,the Central Government or any State Government. In terms ofits application, the width of Section 121-A is thus not confined toconspiracy to commit offences punishable under Section 121 ofthe IPC alone. [Paras 38, 39][898-C-G]G

1.8. As the text of the Section 121A shows, persons whoplan to overawe the Central or the State Government by criminalforce or show of criminal force would be guilty of offence ofentering into conspiracy in terms of Section 121A IPC. Thedictionary meaning of the expression “overawe” is to subdue or H

inhibit with a sense of awe. The expression “overawe” wouldthus imply creation of apprehension or situation of alarm and asrightly held by the Division Bench, it would not be necessarythat the danger should be one of assassination of or of bodilyinjury to the members of the machinery or apparatus of theGovernment but the danger might as well be to public propertyor to the safety of members of the general public. [Para 40][900-G; 901-A-B]

1.9. The conspiracy in the instant case, the intent of whichwas clear from the minutes of the meetings and the consequentialacquisition of arms and explosives to effectuate the purpose andintent of said conspiracy, would thus come well within the latterpart of the conspiracy dealt with in Section 121A IPC. As theexplanation to Section 121A IPC discloses, for an offence ofconspiracy, it would not be necessary that any act or illegalomission must take place in pursuance thereof. Thus, even thoughno untoward incident had actually happened as a result of theconspiracy, the matter would still come within the four corners ofSection 121A IPC. The conviction recorded against the accusedunder Section 121A IPC does not therefore call for anyinterference. [Para 41][901-B-D]

1.10. As regards the submission based on Section 120-Bread with Section 116 IPC, section 120-B IPC would apply onlywhen “no express provision is made in this regard for thepunishment of such a conspiracy”, since an express provisionfor particular kind of conspiracy is dealt with specifically in Section121A IPC, the provision contained in Section 120-B of the IPCwould have no application. The submission, therefore, meritsrejection. [Para 42][901-E]

1.11 The submission that there was no occasion for the HighCourt to enhance the quantum of punishment from seven yearswhich was awarded by the trial court to that of life imprisonmentfor the offence punishable under Section 121-A IPC, theconspiracy as disclosed in the instant matter, if it had been carriedout, would have resulted in great damage and prejudice to thelife and well-being of the members of the general public as wellas loss to the public property. Such conspiracies to cause danger AB

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Ato public property or to the safety of the members of the generalpublic ought to be dealt with strictly. Considering the acquisitionof substantial quantity of arms and explosives as well as the intentdisclosed by the diary, and other materials on record, the HighCourt was right in enhancing the sentence. [Para 43][901-F-H;902-A]B

Kehar Singh and ors. vs. State (Delhi Admn.) AIR 1988SC 1883 : 1988 SCR Suppl (2) 24; Nazir Khan andothers v. State of Delhi AIR 2003 SC 4427 : (2003) 8SCC 461 : [2003] (2) Suppl. SCR 884; State (NCT ofDelhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCCC600 : [2005] (2) Suppl. SCR 79; YomeshbhaiPranshankar Bhatt v. State of Gujarat (2011) 6 SCC312 : [2011] (6) SCR 958; C. Muniappan & Ors. Vs.State of Tamil Nadu (2010) 9 SCC 567 : [2010] (10)SCR 262; Radha Mohan Singh & Ors. Vs. State of U.P.D(2006) 2 SCC 450 : [2006] (1) SCR 519; Lal Singh v.State of Gujarat and Another (2001) 3 SCC 221 : [2001](1) SCR 111; Ajay Aggarwal v. Union of India andOthers 1993 (3) SCC 609 : [1993] (3) SCR 543; MirHasan Khan vs. State AIR 1951 Patna 60 : 1951 Cr.L.J.462; Ramanand v. State 1951 Cr.LJ 462 - referred to.E

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 201-202 of 2018.

From the Judgment and Order dated 10.05.2016 of the High Courtof Karnataka at Bangalore in Criminal Appeal Nos.220 and 530 of 2012.

With

Criminal Appeal Nos.203-204, 205-207 and 208-209 of 2018.

Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Nikhil Goel, AAG,Ratnakar Dash, Siddhartha Dave, Sr. Advs., Mohd. Irshad Hanif, AarifAli Khan, Rizwan Ahmad, Mujahid Ahmed, Farrukh Rasheed, Abu BakrSabbaq, Ms. Seema Bengani, Ms. Suhasini Sen, Kanu Agrawal, Ms.Archana Pathak Dave, B. V. Balaram Das, Ms. Nitya Ramakrishnan,Shadan Farasat, Bharat Gupta, M. Karthik Murukutla, V. N. Raghupathy,Advs. for the appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Criminal Appeal Nos.201-202 of 2018 (arising out of SLP (Crl.)Nos.7347-7348 of 2016); Criminal Appeal Nos.203-204 of 2018 (arisingout of SLP (Crl) Nos.8246-8247 of 2016); Criminal Appeal Nos.205-207 of 2018 (arising out of SLP (Crl) Nos.8243-8245 of 2016) andCriminal Appeal Nos.208-209 of 2018 (arising out of SLP (Crl) No.138-139 of 2017) are filed by original Accused Nos.5, 6, 1 and 4 respectively,against the common judgment and final order dated 10.05.2016 passedby the High Court[1] in Criminal Appeal Nos.220 of 2012, 530 of 2012,531 of 2012 and 1123 of 2013.

2. In the instant case, eight persons were arrayed as Accused inthe chargesheet but A-8 was shown to be absconding. A-1 to A-7, namely,Mohamed Razhur Rehman @ Abdul Rehman, Afsar Pasha @Basheeruddin, Mehboob Ibrahim Sab Chopdar, Noorullah Khan @Noorullah, Mohammad Irfan, Nazmuddin @ Munna, Chand Basha andAhmed Basha respectively, were tried in Sessions Case No.539 of 2006arising out of crime registered pursuant to FIR No.3/2006. By its judgmentdated 17.12.2011 the Trial Court[2] acquitted A-7 but found A-1 to A-6

1 The High Court of Judicature of Karnataka at Bangalore.

1 The High Court of Judicature of Karnataka at Bangalore.

2 The Court of the City Fast Track (Sessions) Judge, Bangalore City (FTC II).

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Aguilty and passed order of sentence dated 19.12.2011, the features ofwhich can be tabulated as under: - BC

3. Following four appeals were thereafter filed in the High Court.

Criminal Appeal No. 220 of 2012 was filed by five Accused i.e.A-1, A-2, A-4, A-5 and A-6. Criminal Appeal No.1123 of 2013 wasDpreferred by A-3. Criminal Appeal Nos.530-531 of 2012 were preferredby the State against acquittal of the Accused including A-7 under certainprovisions and also against award of lesser sentence in respect of offenceswhere the conviction was recorded.

4. Said four appeals were heard together by the High Court. ByEits judgment and order presently under challenge, the High Court modifiedthe conviction and sentence of the Accused as under: - F

G5. Being aggrieved, the instant four appeals before this Court areby A-5, 6, 1 and 4. The State has not preferred any appeal either against 3 IPC, for short.4 1908 Act, for short.5 1959 Act, for short.H6 1967 Act, for short.

the acquittal of A-7 in respect of all charges or against the other Accusedwho were acquitted of some of the charges. Further, no appeals havebeen preferred by A-2 and 3.

6. While investigating into Crime No.110 of 2005 relating to anincident of shootout at Indian Institute of Science, Bangalore, PW-68 SriV.S.D. Souza came to know about a larger conspiracy concerningLasker-e-Toiba (LeT), a banned organization in India, which led toregistration of FIR No.3 of 2006 on 14.01.2006. The allegations in saidFIR No.3 of 2006 were as under:

“1. I was directed by the Commissioner of Police, Bangalore Cityvide Memo No.CRM/4/186/2006 dated 29.12.2005 to investigatethe case in Cr.No.110/2005 registered in Sadashivanagar PoliceStation. I took up further investigation of the case in Cr.No.110/2005 U/s 307 Indian Penal Code, 18060 & 25, 27, 28 of Arms Act& 4 & 5 of Explosive Substance Act, 1908 of SadashivanagarPolice Station, Bangalore City from T. Ajjappa, ACP,Seshadripuram Sub-Division, Bangalore on 31.12.2005.

2. As per my instructions on 02.01.2006 at 6.30 am Sri Subbanna,Police Inspector and his team produced the Accused MohammedRazur Rehman @ Abdul Rehaman @ Umesh S/o Samsuddin,aged 35 years, R/o No.5-10-82, BTS, Naigonda, Andhra Pradesh,before me along with his report seizer mehazar, a pocket diarycontaining telephone numbers which were seized during the courseof investigation of the above case.

3. While investigation, the above case I have come to be awareof the following credible information. That Lasker-e-Toiba (LeT)which is banned organisation in India is active and trying to spreadits terrorist activities in India and elsewhere.

4. The main aim of LeT is to destabilize India by way of terroristactivities like attacking vital sensitive installations, assassinatingimportant public personalities, causing bomb explosions in publicplaces and carrying shootouts, disrupting *****[7] peace andtranquillity, causing communal disharmony *****[7] economicinterests thereby disturbing public order etc.

7 ***** - Illegible.

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5. Abu Mohamed @ Mohamed Irshad is the chief of LeT in SaudiArabia. Abu Mohamed is a Pakistani national. Abu-Abdulla, AbdulManner and Zakria all Pakistani nationals used to assist AbuMohammed @ Mohammed Irshad in LeT activities.

6. Abdul Rehman, a native of Nalgonda, Andhra Pradesh, a dropoutin Diploma, ventured into different professions, but failed. In 1993he procured passport at Hyderabad and in 1994 his brotherHabeer-Ur-Rehman helped him in getting a Saudi Visa and AbdulRehman went to Saudi Arabia and worked as driver, as a salesmanin a vegetable shop, in laundry, driver of water supply van and atpresent he is working as sales representative at Onaiza Under acosmetics dealer.

7. He came in contact with Sheik Mehboob Ahamed Moulana anLeT leader in a Sanaga Masjid.

8. Sheikh Mehboob motivated Abdul Rehman to join LeT in 1998.The said Abdul Rehman started attending to its religious activitiesof LeT an started regularly attending to its religious activitiesconducted by LeT which were basically motivating people forJehadi activities. Abu-Hanza, Abu-Ummer, Abu-Nidal, Abu-Bukka,Abdul Rehman Makki, Hafizullah who are senior LeT leadersused to take active participation and were motivating the peoplefor Jehadi activities by their provocative speeches during 1999.Abu Rehman got married and returned to Saudi Arabia.

9. In 2000 Afsar of Bangalore and Mehboob Ibraim of BagalkotDistrict during one of its seminar in Islamic Centre of Onaiza(Saudi Arabia) came in contact with Abdul Rehman and theybecame friends and prominent persons in the cadre of LeT.

10. Under the patronage of Abdul Rehman, Afsar Pasha ofBangalore wanted to go to Pakistan for training in explosives andarms for Jehadi and terrorist activities. However, the plan did notmaterialize.

11. In the year, 2001, Faisal, Abu Haza, Sherif, Altaf, Anwar,Zakaria, Abdul Rehman and others who are all Indian nationalsand working in Saudi Arabia decided to collect funds and revenuefor Jehadi activities in India.

12. Vali-Ur-Rehman, resident of Bangladesh, who is chief of Jamat-ul-Mudauddin (JMU in Bangladesh) arranged the visit of AfsarPasha to Bangladesh.

13. Afsar Pasha of Bangalore, went to Bangladesh in the early of2002 where he stayed there for 8 months and also underwenttraining in handling weapons and explosives and manufacture ofbombs, etc. Later he entered India illegally via West Bengal. AbdulRehman during this period had sent money to Afsar Pasha towardsthe purchase of weapons and training expenses.

14. In the year 2002. Irfan Umri of Chennai was made Masoodof Al-Ghasi and Abdul Rehman as his deputy. Both of them haveconducted various religious programme to attract Muslims to thecadre of LeT.

15. During 2003, Zakaria returned back to India and he wasarrested by Tamil Nadu Police for conspiracy of carrying outsabotage activities in Chennai. Later Abdul Rehman was madeMasood in place of Irfan Umri in Saudi Arabia.

16. Abdul Rehman was visiting Nalagonda, Andhra Pradesh,frequently on the pretext of spending holidays, but was contactingMehboob Ibrahim and Afsar Pasha and discussing about carryingout Jehadi and terrorist activities in Karnataka. Abdul Rehmanappointed Mehboob Ibrahim of Bagalkot District for carrying outterrorist activities in Northern Karnataka and Afsar Pasha ofBangalore for Southern Karnataka.

17. During such visits in November 2003, Abdul Rehman visitedChintamani and met his associate Afsar Pasha and decided aboutsetting up a Mosque of Ahle-Hadis at Chintakani and also promisedfor financial assets ****. Afsar Pasha and Afbdul Rehman alsodecided to ****** of LeT in Karnataka by recruiting youth fromtheir community. Afsar Pasha introduced Noor, Irfan, Munna andothers Abdul Rehman, Abdul Rehman as a chief of LeT SouthIndia. ***** all of them to engage themselves in Jehadi and terroristactivities.

18. Abdul Rehman went to Chennai and met Irfan and decided toset up a trust “Al-Fetah” for LeT activities and promised fundsfor the same.

19. During 2004, Abdul Rehman sent money to Afsar Pasha ofBangalore and Mehboob Ibrahim of Bagalkot through hawalatransaction through one Chand Pasha of Bangalore.

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20. The said Afsar Pasha of Bangalore and Mehboob Ibrahim ofBagalkot District were in constant touch with Abdul Rehman whowas based in Saudi Arabia and vice-versa and further wasreporting to him about the progress of the LeT activities.

21. Abdul Rehman instructed Afsar Pasha and Mehboob Ibrahimto undertake Jehadi and terrorists activities through sabotage inKarnataka. Abdul Rehman came to Nalagonda during October2005 and instructed Afsar Pasha and Ibrahim to cause blast anddamage to vital installations, Multi-national companies, etc. inBangalore and other places of Karnataka.

22. Between 2003 to 2005 December, Abdul Rehman has recruitedAfsar Pasha of Bangalore and Mehboob Ibrahim of Bagalkot intoLeT cadre. Afsar Pasha was made incharge of LeT to look afterSouth Karnataka and Ibrahim of Bagalkot District was madeincharge of LeT to look after North Karnataka for causing sabotageactivities. Afsar Pasha has recruited 4-5 persons, trained them inLeT activities and also taught them about the concept of Jehad,(so called holy war against non-muslims). For this purpose during2[nd] and 3[rd] week of December, 2005 they held secret conspiracymeeting in Tamil Sangam, Cubbon Park and Afsar Pasha’s housein Bangalore and other places in Karnataka and decided to causebomb blasts in Bangalore. For this purpose they procured explosivematerials, bomb, etc. and prepared themselves to use them toterrorize the citizen and create fear psyenosis in the State by theirterrorist activities.

23. In view of the above facts, it is evident that the above Accusedpersons viz. (1) Mohamed Razhur Rehman @ Abdul Rehman (2)Afsar Pasha of Bangalore (3) Ibrahim of Bagalkot District (4)Noor (5) Irfan (6) Munna and others of Karnataka who are theactive members of banned militant organization LeT entered intoa criminal conspiracy to cause large scale destruction of publicproperty, multi-national companies etc. by causing bombexplosions, attacks on innocent people, large scale destruction ofplaces of worships and promote enmity between different groupson the grounds of religion, race and perpetrated acts, prejudicialto the maintenance of communal harmony besides causingdisaffection with overall object of attempt to being hatred,contempt and incite disaffection towards the Government by lawestablished by desertion of places of worship, knowingly that such acts will result in breakdown of public order and the Accusedhave reported to have acquired and collected explosive substancesand other necessary arms and ammunitions and conspired to wagewar against the Union Government of India.

24. The information received by me constitutes cognizable offenceU/s 120(b), 121, 121(A),1 122, 124(A), 153(a) and (b) of IndianPenal Code, 1860 and Section 5 and 6 of Explosive SubstanceAct, 1908 and Sections 25, 26 and 28 of Arms Act, 1959 andSections 10, 11, 13, 16, 18, 19, 20 and 23 of Unlawful ActivitiesPrevention Act, 1967.”

7. The investigation into the crime was conducted by the teamheaded by PW72 (Pradeep Singh, Asstt. Commissioner of Police) andthe salient features of the matter including the steps undertaken duringinvestigation can be tabulated as follows:

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8. During trial, the Prosecution examined 73 witnesses and reliedupon 278 exhibits and 38 material objects in support of its case. ExhibitsD1 to D7 were also marked at the instance of the Accused in the crossexamination of the Prosecution witnesses. The evidence led by theProsecution could be categorised under three segments as noted by theHigh Court[8]:

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A“(1) The recovery of incriminating articles at the instance of theaccused persons;

(2) Connectivity of those articles to the conspiracy between theaccused persons;

(3) The conduct of the accused persons with reference to suchBconspiracy to constitute the offence alleged against them.”

9. In the first segment, the important recoveries from the Accused,which were relied upon by the Prosecution, were as under:

(a) From A-1: A pocket notebook, some paper chits containingCphone numbers, passport and passport sized photos.

(b) From A-2: 17 Detonators, 20 Gelatine sticks, 114 Iron pallets,3 Hand grenades, certain inflammatory literature, minutesof meeting of a trust created under the tutelage of A-1(Ex.P.92) and some video cassettes.D

(c) From A-3: Passports, Telephone diary, Telephone chits,Photographs, 10 Gelatine sticks, 2 Detonators andinflammatory literature.

(d) From A-4: Tin type bomb in a box, wires and tapes;documents and books.E

(e) From A-5: Letterheads and inflammatory literature.

(f) From A-6: Tin type bomb in a box, wires and tapes; Revolverand live ammunition.

F(g)From A-7: Mobile phone, slip with phone number, visitingcard, diary and a note book.

10. Certain explosive substances, arms and ammunition whichwere recovered pursuant to statements made by A-2, A-3, A-4 and A-6as dealt with at serial numbers 7, 8 and 12 of the chart in paragraph 7Ghereinabove, were also relied upon.

11. The Prosecution examined PWs 1 to 8 and 13, who accordingto the Prosecution, were sought to be drawn and indoctrinated into thedesign and scheme of the Accused. All these witnesses did not supportthe Prosecution and were declared hostile. However, according to theHProsecution, their testimonies could still be relied upon to establish the fact that all the Accused were working together with a sense of purposeand had been in touch with the witnesses. By way of example, thefollowing portions from the depositions of PWs 1 and 4 may be noted:- (A) PW-1 (Javeel Raza)

“I am acquainted with, Accused-2, Afzal Pasha and Accused-6Nazamuddin. Both of them are present in this court on this day.Witness identified the Accused-2 and 6 who are sitting at the 4thand 6th position respectively.

One day when I was there in my shop along with Parveed, 4years ago, Accused-2 and 6 came to my shop and said that theyhave come from Kolar, presuming that they might be friends ofmy friend Mukthiyar who lives Kolar, I called Mukthiyar overphone. The said Mukthiyar is originally from Kolar and was residingin Bangalore. I had called his Bangalore number. Mukthiyar cameto my shop. Accused-2 and 6 told us about Islam religion, told usto do Namaz and told us to help the poor people. Told us to establishone Madarasa. We offered both of them cup of tea and sent themoff.

After six-seven days, both of them came to my shop once again.Me, Parveez, Mukthiyar and Zaheed were there in the shop. Theytold us, we will not talk in shop, lets go to park and talk. All four ofus went to park along with them. Both of them told about Quranand said that, we have to establish an organisation of people, andtold us that it is not possible for the people to go to the mosques orDargah and pray, hence they are to be demolished. For this work,15-20 persons are to be organised and the expenses for the sameshall be borne by the same organisation. As the matters that theywere saying were not appropriate, I told them that I am getting aphone call and I returned to the shop. Behind me, my friends alsocame back. Accused-2 and 6 went back from the park only. Allfour of us had talk amongst ourselves, and we decided that theconduct of Accused-2 and 6 are not good, if they come backagain, we will not entertain them. After few days, Javid hadreceived a call from the said persons, Javid informed that he hastold them not to come and we will not be available.

After the witness was declared hostile, he was cross examinedby the Special Public Prosecutor, when the witness stated:- A

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It is correct if stated that, in my statement I had stated that theaccused persons had informed me that Madarasas are to beopened, Muslims are to be trained, for that finance needs to bearranged. It is not correct if stated that, I had stated that Jihad tobe declared against the killings of Muslims by Hindus in Gujarat.The said statement was flagged as EP-1. It is correct if statedthat, they had told me that, people are to be stopped from going toDargahs and we should make Dargahs non-existent. It is notcorrect if stated that, by making Dargahs impure, communalharmony to be disturbed and law and order situation should becreated and government should be weakened, they had informed.The said statement was flagged as EP-2. It is not correct if statedthat, the accused Afzal Pasha was trained in Dhaka regardingJihad and acquainted with the Chief of Lashkar-e-Toiba of SaudiArabia, Abu Hamja, Wali Ur Rahman and Abdul Rahman ofNelagonda, that he needs to establish Lashkar-e-Toiba inKarnataka secretly, and had stated that, you all have to co-operate.The said statement was flagged as EP-3.

Accordingly, it is not correct if stated that, I had stated while wewere sitting in the park, the said accused said that, we will alltogether, we will organise LeT in Bangalore, Hindus are killingMuslims in Kashmir and at all parts of India, we will declare Jihadas said in Quran, we will destroy India through revolution, we willcollect money for LeT, we will bring the interested persons fortraining, all the expenses will be borne by Abdul Rahman, I willalso train the joining persons temporarily. The said portion of thestatement was flagged as EP-4.”

PW-4 (Firoz @ Firoz Pasha)

Accused-6, Munna was introduced to me by Chintamani watchshop, Abdul Rahman. The said Munna is present in the court todayand he was identified. I used to go to tea stall to read news paper.Then, I got acquainted with the Accused-4, Noorulla. He is alsositting in the Court today. When I went to Mulabagilu for Islamreligious canvassing, I got acquainted with Accused – 5, Irfan.He is sitting in the court today and the witness have identifiedhim. I know the Accused-2, he is also present in the court today.

… …In Chintamani there are two Masjids, in those Masjids whenwe went for Namaz, the management there threw us out saying

that, there is a different custom in those Masjids. Therefore, wetook a room and we used to Namaz there only. We made a trustand had purchased land for the trust. Abdul Rehman was theChairman for that trust, 2nd Accused Afzal Pasha was the Vice-Chairman, Accused-6 Munna was the Secretary for that trust,Accused-4 Noorulla was the Joint Secretary, I was treasurer forthe trust. Accused Abdul Pasha had a fracture of bone of hand,then Accused-1 Razu Rahman came to see him, then Abdul Pashaintroduced him to me that he was his friend in Saudi.

Abdul Rehman had organised a tea party in our house, one day.On that day, Accused-1 Rahman told us that we all should beunited and should be co-operative with our neighbours. … …

….. Evening at 7 pm he left after the Namaz. After that, Ihad dropped Abdul Rahman to the Bangarpet Railway Station onmy Bike.”

After the witness was declared hostile, in response to the questionsput by the Special Public Prosecutor, the witness stated:- “It is not correct if stated that, in the statement that I had given tothe police, I had stated that, the Accused Afzal Pasha is the majorman in Lashkar-e-Toiba, he speaks about Jihad, he had informedme that we will conduct a meeting at 5 PM in our house and asper his request when we gathered in my home, after introducingthat Afzal Pasha is the commander of Lashkar-e-Toiba of SouthIndia, after that Abdul Rahman spoke and said that, the countryof India should be made into pieces, we will conduct a trainingabout Jihad, I will supply the gun, bomb and other required items,you all organise yourselves declare Jihad and said that demolishDargahs create communal clashes and create instability ofgovernment. Listening to all this matter, we said it is not possibleto do all that here, we did not cooperate. Me, Jameer and Ameercame back from the meeting without signing, and I had statedthat, we were present at the meeting, Munna, Noorulla Khan andAbdul Pasha signed. The said statement was flagged as EP-11.”

The witness was recalled and cross examined further by the SpecialPublic Prosecutor when the witness stated:- “The trust that we have registered is Masjid O Mohammed YaAhle Adees Trust. It is correct that the PW-5 Jameer, PW-6 Ameer A

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and CW-11 Miyammed were also the members of the trust. Whenthe assused-1 came to my house, Afzal Pasha, Noorulla Khan,Munna, Jameer and Ameer had come there. I did not questionthat, why he is saying like that, when the Accused-1 told us thatwe all should be united. Afzal Pasha is my childhood friend.

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BI do not know about, the accused-1 is the South IndiaCommander of Lashkar-e-Toiba and has come to preach us. Onthat day, the accused-1 was there at my home for about one andhalf hour, he had only told that we all should be united. It is falseif stated that, Abdul Rahman in his speech told that, in India atrocityis happening on Muslims, we all should declare Jihad unitedly, ICwill provide necessary training and required weapons and all. It isnot correct if stated that, Abdul Rahman had said like this, we didnot agree to this. Abdul Rahman was staying in Woodland Hotel.Afzal Pasha is my relative.”

12. The Trust referred to in the deposition of PW4 was constitutedDpursuant to execution of Trust Deed (Ex-P27) on 10.12.2003, in termsof which the Trustees were:- “(i) Abdul Rehaman s/o Watch Maker Mohan Road;

(ii) Afsar Pasha s/o Noor Ahmed;

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(iii) Nijamuddin s/o Tajuddin;

(iv) Noorulla s/o Mehaboob Khan;

(v) C.M. Firroz Pasha;

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(vii) Roshan Zameer s/o Syed Noorullah;

(viii) Syed Nayamat s/o Syed Amanulla; and

(ix) Tajuddin s/o late Abdul Razak”

Thus, Accused Nos. 2, 4 and 6 as well as PWs 4, 5, 6, 7 and 8Gwere Trustees of said Trust.

13. It is accepted that Ex. P-92 is the Minute Book of said Ex. P-27 Trust. Apart from the recovered arms and ammunition and explosivematerials, minutes of meetings as recorded in Ex.P.92 recovered fromA-2 are of some significance. The contents of Ex. P.92 show that theHmeetings were attended by some of the accused who signed the minutes.

The details in that behalf were captured in Paragraph 70 of the judgmentof the Trial Court, which Paragraph, for facility is extracted hereunder:- “70. I have perused Ex.P92 and the relevant page of the firstmeeting is marked as Ex.P92 (c) and (d). The said meeting washeld on 10.12.2003 in the house of Fairoz at Chintamani, whichwas attended by Accused Nos.1, 2, 4 and 6 along with someother members. As per its recitals, it goes to show that the Jihadmeeting was held at 5:00 P.M. and in the said meeting AccusedNo.1 was introduced to all others. Further, it goes to show thatAccused No.1 addressed the meeting saying that in India muslimsare treated badly, Babri Masjid is demolished, muslims were killedin Gujarat and we all should be prepared to fight against it. Further,it goes to show that Accused No.1 assured that he will supplyguns, bombs and also financial assistance, etc., for preparation ofJihad training. Further, it goes to show that the members whoattended the meeting, namely Fairoz, Zameer and Ameer, dissentedwith the Accused No.1 because if they do so, it will cause harmto the muslims and by saying so they walked out from the meeting.The said meeting also discloses that other members agreed withthe Accused No.1 and meeting was concluded at 8:00 P.M.Ex.P92(d) goes to show that Accused Nos.1, 2, 4 and 6 havesigned the minutes book. At Ex.P92 (d) after the signatures ofAccused No.2, there is a gap and it appears that something hasbeen erased. The learned Special Public Prosecutor has arguedthat one member who attended the meeting might signed afterAccused No.2, but as he came to know about the consequences,he might have erased his signature. He further argued that thepersons who attended the meeting being descended with thedecision of the accused the I.O. has cited them as witnesses. Ifind considerable force in his arguments as because Ex.P92 (c)and (d) goes to show that the witnesses, namely Fairoz, Zameerand Ameer, dissented with the views of Accused No.1. Ex.P92

(f) goes to show that second meeting was held in the house ofAccused No.6 from 19.08.2006 and it was attended by AccusedNos.2, 4, 5 and 6. Ex.P92 (f) goes to show that in the said meetinga society was formed in the name of Jamath-ul-Mujahiddin and itwas agreed in the meeting to cooperate the Jidhad training.Ex.P92(a) and (h) goes to show that third meeting was held on18.12.2005 in the house of Accused No.2 at Lakkasandra, A

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ABangalore, and Accused Nos.2, 4, and 6 attended the same.Ex.P92(g) and (h) also goes to show that Accused No.5 addressedthe meeting by saying that Islam was sent in the hands ofPaigambar to be superior to the other religion and Jihad has to bedeclared if anybody causes damage to Islam. Ex.P92 (g) and (h)also goes to show that Accused No.4 has addressed the meetingBby saying the Jihad has to be started by offering lunch (Davath)and if anybody opposed Jihad has to be declared at any time.Ex.P92 (g) and (h) also goes to show that the Accused No.2 hasaddressed the meeting saying that Jihad has to be declared in thename of God, in case killed he will be ‘Shahid’ and in case ofCsurvival he would become ‘Bahaddur’. Further, it goes to showthat Accused No.2 addressed to the effect that Kuwath means‘power’ and by referring the handwritings of the book given byTariq Sahni of Bangladesh he told that the power is in bombs,bandook and AK-47. Ex.P92 (g) and (h) also goes to show thatAccused No.2 instructed to the Accused No.4 and Accused No.6Dto identify the Dargah and other important places, for that theyagreed. Ex.P92 (g) and (h) also goes to show that next meetingwas fixed on 31.12.2005 and the third meeting was concluded at8:00 P.M. The advocate for the accused argued that there areoverwriting at Ex.P92. It is true that at some places we can seeEthe overwriting. At Ex.P92 (c) at the top in date there is overwritingof day, but not about the month and year. Similarly, at Ex.P92 (g)also there is a overwriting of date. But, at the end of third meetingdate of next meeting has been specifically mentioned without therebeing any overwriting. Similarly, in the recitals also some wordsare striked out, but it will take away the meaning of the sentence.FTherefore, I am of the opinion that the overwritings are natural.”

14. PW25 – Anil Kumar Dubey, an independent panch witness,stated inter alia about the recovery of Diary Exh.P-92. He deposedthat on 22.01.2006 he had accompanied the police and A-2; that whenthey reached the house of A-2 the door was opened by his wife; that A-G2 took the police to a room and opened a suitcase which was lying belowthe cot in the bedroom using the key that was with him, whereafter,articles Exh.P-81, P-92, six video cassettes (M-15) and other articlesExh.P-93 to P-104 were seized vide Panchnama Exh.P-105. The witnessstated that after the seizure was done in his presence, Panchnama, Exh.P-H105 was drawn and signed by him. He also stated that the police had called a Moulvi from a Masjid in the neighbourhood, who read the namesand some of the contents of the written material and books. The cross-examination of the witness did not draw anything substantial to dispelthe credibility of the assertions made in the examination-in-chief.

PW29 Shahnawaz Ahmed deposed that he was called by the policeto translate the Urdu books and other material but denied thatPanchnama was drawn in his presence. According to the witness, hissignatures at four places on Panchnama Exh.P-105 were taken laterand the contents of said Panchnama Exh. P-105 were not read out tohim. The witness was declared hostile and was cross examined by theprosecution in which he accepted that he had never signed any documentwithout knowing the contents thereof.

15. Exh. P-92, among other documents, was made over to PW-67, Syed Asgar Imam, Hand Writing Expert, along with sample signaturesof the Accused. According to this witness, signatures on the sheets ofExh. P-92 were marked as Q39 to Q44 and when said Expert comparedthe sample signatures of the Accused with Q39 to Q44, the result showed:-

(a) Q39 and Q40 matched with the sample signature of A-2.

(b) Q41 matched with the sample signature of A-5.

(c) Q42 matched with the sample signature of A-6.

(d) Q43 matched with the sample signature of A-4.

(e) Q44 matched with the sample signature of A-1.

The relevant portion from the testimony of PW-67, Syed AsgarImam was as under:- “Since 1981, I am working as handwriting and document expertsin FSL, Bengaluru. I am science graduate and I have also gotspecial diploma course in handwriting and document examination,from institute of criminology and Forensic Science, Ministry ofHome Affairs, Government of India, New Delhi.

In my tenure I have examined number of questioneddocuments and I have given my opinion.

On 14/3/2006, I have received following documents fromA.C.P. Yeshawanthapura Sub-Divn. Bengaluru City, for myexamination and my opinion in Cr. No.3/06 of SadashivnagarP.S.

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A1.One small pocket diary containing questioned writings,marked as Q1 to Q24 by the I.O. Now I see that said pocketdiary already marked as Ex.P.54. It bears my signature.

2. Three loose chits containing questioned writing, marked asQ25 to Q30 by the I.O. Now I see the said three chits,Balready marked as Ex.P.51 to 53. It bears my signature.

3. One small pocket note book (New) containing questionedwriting marked as Q31 to Q38 by the I.O. Now I see thesaid one small pocket notebook already marked as Ex.P130.It bears my signature.

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4. One 2003-diary containing questioned writing and signaturein six sheets marked as [Q39 to Q44] by the I.O. Now Isee the said one 2003 diary already marked as Ex.P.92. Itsrelevant sheets of questioned writing is now marked asEx.P.92 (c) to (h). it bears my signature.

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5. One small telephone pocket diary (new) Q45 to Q50 by theI.O. Now I see the said one telephone pocket diary alreadymarked as Ex.P.135. It bears my signature.

6. One small pocket book containing questioned writing markedas Q51 to Q55 by the I.O. Now I see the same alreadyEmarked as Ex.P. 113. It bears my signature.

7. One loose page of a note book containing questioned writing,marked as Q56, Q57 by the I.O. Now I see the same alreadymarked as Ex.P.114. It bears my signature.

F8.One small pocket note book containing questioned writingmarked as Q58 to Q60 by the I.O. Now I see the samealready marked as Ex.P.116. It bears my signature.

9. One small pocket book containing questioned writing markedas Q61 to Q79 by the I.O. Now I see the same alreadyGmarked as Ex.P.148. It bears my signature.

10. Eight chits containing questioned writing marked as Q80 toQ91 by the I.O. Now I see the same already already markedas Ex.P.149, 150, 151, 138, 141, 139, 140 and 142. It bearsmy signature.

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11. Specimen writing said to be of Mehboob Ibrahim on sixsheets, marked as EW1, EW2, SW1 to SW4 by the I.O.Now I see the same already marked as Ex.P.190 to Ex.P.195.It bears my signature.

12. Specimen writing and signature to be of Afsar Pasha onten sheets, marked as EW3, EW4, SW5 and SW8, S1 andS4 by the I.O. Now I see the same already marked asEx.P. 196 to 205. It bears my signature.

13. Specimen writing and signature said to be of MohammedIrfan on six sheets marked as EW5, EW6, SW9, SW10, S5and S6 by the I.O. Now I see the same already marked asEx.P.206 to Ex.P.211. It bears my signature.

14. Specimen writing and signature said to be of Noorull Khanon four sheets marked as EW7, EW8, S7, S8 by the I.O.Now I see the same already marked as Ex.P.181 to 184. Itbears my signature.

15. Specimen writing and signature said to be Najmuddin onfour sheets, marked as of Najmuddin on four sheets, markedas EW9, EW10, S9 and S10 by the I.O. Now I see thesame already marked as Ex.P.185 to 188. It bears mysignature.

16. Specimen writing and signature said to be of Chandpashaon six sheets marked as EW11, EW12, SW11 and SW12,S11 and S12 by the I.O. Now I see the same marked asEx.P.227 to Ex.P.232. It bears my signature.

17. Specimen signature said to be of Mohammd Razhur Rehmanon two sheets, marked as S13 and S14 by the I.O. Now Isee the same marked as Ex.P.223 and Ex.P.234. It bearsmy signature.

After thorough and scientific examination of the abovequestion and specimen writings and signatures I came to thefollowing opinion:-

1. The specimen writing marked as EW1, EW2, SW1 to SW4and questioned writings marked as Q2, Q3, Q4 are writtenby one and the same person.

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A2.The specimen writings marked as SW7, SW8, EW3, EW4,S1, S2 and questioned writing marked as Q31 to Q40 Re-examination written by one and the same person.

3. The specimen writings and signatures marked as EW5,EW6, SW9, SW10 and S5, S6 and questioned writings andBsignatures marked as Q47 to Q50 and Q41 are written byone and the same person.

4. The specimen writings and signatures marked as EW7,EW8, S7 and S8 and questioned writings and signaturesmarked as Q53, Q54 and Q43 are written by one and sameCperson.

5. The specimen writings and signature marked as EW9,EW10 and S9 and S10 and questioned writings and signaturemarked as Q56 to Q60 and Q42 are written by one and thesame person.

D6.The specimen writings marked as EW11, EW12, SW11,SW12 and questioned writings marked as Q86 are writtenby one and the same person.

7. The specimen signatures marked as S13, S14 and questionedsignature marked as Q44 are written by one and the sameEperson.

8. It has not been possible to express the opinion questionedwritings marked as Q1, Q5 to Q30, Q45, Q46, Q51, Q52,Q55, Q61 to Q85, Q87 to Q91 on the basis of specimenwritings on hand.

FAccordingly, I have issued the certificate in this regard now.I see the same marked as Ex.P.235 and my signatures are markedas Ex.P.235(a) to (c). The said certificate is counter signed by theAssistant Director, FSL and forwarded to the I.O. by the director.”

Nothing substantial came out in the cross-examination conductedGon behalf of the Accused with respect to Exh. P-92. The signatures ofA-1, A-2, A-4, A-5 and A-6 on some of the minutes, according to theProsecution, were thus proved beyond any doubt.

16. The recovery of books and literature recovered from theAccused, which according to the Prosecution was inflammatory material,Hmay now be dealt with:- (A)On 22.01.2016, A-2 took PW72 to his house leading to therecovery of certain literature and books which accordingto the Prosecution were inflammatory. The literaturecomprised of a book named as ‘Taqbeer’ (Exh.P-81), abook called ‘Jihad’ containing 66 pages (Exh.P-82),literature under caption ‘Jamaat-e-Mujahiddin’ (Exh.P83),a book named ‘Hazarath Mohammed Kajikar’ (Exh.P-84), a book by name ‘Warning’ (Exh.P85), a book named‘Albalaaq’ (Exh.P-87 and Exh.P-88), a book named‘Yehoodiyonki Tarahim’ (Exh.P-90) and collection of 40Pamphlets (Exh.P-91), apart from the aforesaid Diary(Exh.P-92).

(B)Pursuant to the voluntary statement made by A-3, four booksnamely; Jadul Mujahiddin, Albalaq, Taqbeer and Biddat,Exhs.P-64 to P-67 respectively were recovered as perPanchnama Exh. P-68.

(C)The voluntary statement of A-5 led to the recovery of booksnamed Dastani Mujahid and Jihad (Exhibits P-76 and P-77) and some letterheads.

17. The Prosecution also relied upon the confessional statementsof Accused Nos. 4, 6 and 7 which were recorded by the 9[th] AdditionalChief Metropolitan Magistrate, Bangalore City and marked as ExhibitsP-268, P-269 and P-270 respectively.

18. After considering the material on record, the Trial Court in itsjudgment dated 17.12.2011, took the view that the sanction accorded bythe Under Secretary in respect of the offences punishable under theprovisions of Sections 10 and 13 of the 1967 Act was defective.

19. The documents, books and literature referred to above weredealt with by the Trial Court in Paragraphs 53-56 of its judgment asunder: - “53. At the earlier stage I have made a note that all the UrduBooks seized by the I.O. from each accused will be consideredtogether. I have observed about the seizure of the books and otherdocuments from Accused No.2 by the I.O. under Ex.P105. Thebooks and documents seized from Accused No.2 are marked asEx.P81 to 90. The Book namely Taqbir is marked as Ex.P81. Thebook ‘Jihad’ is marked as Ex.P82. The Book ‘Jamal-e Mujahiddin’

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is marked as Ex.P83. The Book ‘Hazarath Mohammed Zakikar’is marked as Ex.P84. The Book ‘Warning’ is marked as Ex.P86.The weekly magazine ‘Albalaaq’ is marked as Ex.P87 to 88.

One book is written by Raithullah Faruqui is marked as Ex.P89and 40 pamphlets are marked as Ex.P90. PW-72 in his evidencehas stated that, he has secured the neighbouring witness ShahnawazAhmed, who knows Urdu as pancha to know the contents of thesaid book. The said witness is examined as PW-29. This witnessturned hostile and not supported the prosecution case. To someextent he has stated that one Mohammed Anwar and Lakkasandra,landlord, called him to translate the Urdu Books. Further, PW-29has stated that he went to the house and the police were presentin the house of Anwar. He has also stated that the police told himto translate Urdu Book and he translated the books given to him.Though this witness has turned hostile about conducting of thepanchanam i.e. Ex.P105, to some extent we can gather that hehas translated Urdu Books to the police. PW-72 has stated thaton the books i.e. Ex.P81(Taqbir) there is a symbol of crossedRifle and Sword. PW-72 has stated that the witness, namelyShahnawaz Ahmed has verified the book and told that in the 9Chapter there is a phrase as “Bharath mit janewala hai”, in the 10Chapter as “Haath me gun utao”, and in the 14th Chapter “Lashkar-e-Taiba”, PW72 has stated that, the relevant chapters weremarked in red ink and PW-29 has explained the meaning of therelevant chapters. PW-72 has further stated that said Shahnawaztold that those articles are anti-national and provocative. PW-72has also stated that the said witness Shahnawaz explained themeaning of the other books also. PW-72 also further stated thatthe witness Shahnawaaz told that in the book ‘Warning’ it is writtenabout the demolition of Babri Masjid and also about the wrongAct by the order communities on Dargas.

54. As I discussed at earlier stage about the seizure of booksEx.P64 to 67 from Accused No.3 Ex.P64 is ‘Jadul Majahiddin’,Ex.P65 is ‘Albalaaq’, Ex.P66 is ‘Taqbir’ and Ex.P67 is ‘Biddath’.PW-50 is the Police Official, who seized the Ex.P64 from AccusedNo.3. PW-50 in his evidence has stated that, the contents of thesaid books were explained by Rukman Ahmed, who knows Urdu.The said witness examined as PW-27. He turned hostile and not

supported the prosecution case. But, this witness by seeing Ex.P66i.e. ‘Taqbir’ explained the ‘Taqbir’ means ‘Voice of Allah’. Thiswitness has also stated that in one Part at page No.166 it ismentioned that ‘India will destroy’ and also it is written that, ‘tohold the gun’ and the said book is printed at Pakistan. He has alsostated that, at Page No.64 there is a recital about glorifying ofinjured persons in Jihad. PW-50 also in his evidence stated that,PW-27 has examined the book ‘Taqbir’ and informed that in the9th Chapter it is written as ‘Bharath mit janewala hai’ and in thesaid book at 10 chapter it is written as ‘Haath me Gun utao’. PW-50 further stated that, the witness i.e. PW-27 has examined thecontents of the books seized by him. The advocate for AccusedNo.2 and 3 vehemently argued that it is practically impossible toknow the contents of all the books within a short period and totranslate it. They have also argued that by picking up somesentences, the meaning of the book cannot be gathered and onlyafter reading the entire book only the real meaning of the bookcan be extracted. On perusal of the evidence of PW-50 and PW-72 it appears that some important chapters were only got explainedby them. It is an admitted fact that the true translation of entirebook are not furnished. The I.O. has referred all the books to theChairman, Urdu Academy, for its translation. The then Chairmanof Urdu Academy, namely M. Nooruddin is examined as PW-65.He has stated that during the year 2006 he was working asChairman at Urdu Academy and also he has stated that he hasobtained M.A., Ph.D., in Urdu language. He has also stated thatin the month of July or August 2006 A.C.P., Yashwanthpura Sub-Division, has sent some Arabic and Urdu Books for their translationto English. He has also stated that about 15 books were handedover to him, namely Sunflower notebook, ‘Alballaq’ WeeklyMagazines, ‘Biddat’, ‘Jadul Mujahiddin’, ‘Tagbir’, ‘Jamale-Mujahiddin’, ‘Warning’, ‘Kya Aurath Masjid ya Edga nahi jasakthi’, two weekly magazines of ‘Albalaaq ke Jerayum’, 40Pamphlets of ‘Jadul Mujahiddin’ and ‘Vedon ki duniyan me’. PW-65 has further stated that because of shortage of time he took theassistance of his colleague. During the cross-examination he hasadmitted that all the 15 books were read by his friend. He hasalso admitted that, his friend has underlined some portion whichwere only read by him. As argued by the advocate for the accused AB

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without reading the entire text, the real meaning cannot beextracted. It is true that PW-62 has stated that, he has read theportion which were underlined by his colleague. Here I am toobserve that as Stated by PW-65 in the Chief Examination itselfstated that because of shortage of time he took the assistance ofcolleague, who well-versed in Urdu and Arabian language. Theperson who assisted him is none other than the colleagues of PW-65. PW-65 has stated that he has given the gist of all books givento him in his report as per Ex.P225. He has stated that the gist ofEx.P76 is that “democracy is not suitable to establish Islam religionand it is inevitable to kill to secure power”. He has also statedthat, in Page No.16 of Ex.P76 it is written that the muslimcommunity is suppressed by majority communities and the aim isnot to awoke muslim community and the muslim should not preparewith arms’, As such, the meaning is majority communities attackingon the muslims. Further PW-65 has stated that in the said book itis also written that ‘as muslims are minority community, in ademocratic system they cannot secure power’. He has also statedthat in the book ‘Taqbir’ i.e. Ex.P81, it is written that ‘India willdestroy’ and also written that ‘to take gun in the hands’. It is alsowritten that ‘Lashkar-e-Toiba’ destroy the kaphirs and Lashkar-e-Toiba is fighting for good things. Further, PW-65 has stated thathe has given the gist of Ex.P64 i.e. Jadul Mujahid book and its gistis that ‘Prophet has told to attack on India’. PW-65 has statedthat, in fact the prophet has not told so, PW-65 has specificallystated that this book is provocative and most dangerous. He hasalso stated that, the book Ex.P89 ‘Mujahid-ke-Azad’ is alsoprovocative and anti-India. Relating to Ex.P81 the Special PublicProsecutor has argued that, Kaphirs are those ‘who deviate fromthe Islam path’. As Per Ex.P81 it is a war against non-muslims.Much has been argued on both sides about the meaning of Jihad.He has referred the book Islam, sex and violence, written by AnwarSheikh. In the 7th Chapter, the Author has examined Jihad as “Jihad is an Arabic word, which literally means ‘endeavour’but as an Islamic doctrine, it implies fighting in the way ofAllah (the Arabic God) to establish his supremacy overunbelievers until they relinquish their faith to become muslimsor acknowledge their subordination by paying a humiliation-tax called ‘JAZYIA’.”

55. The advocate for the Accused No.3 referred website copyWikipedia, wherein Jihad is described as follows:

“According to the authoritative Dictionary of Islam jihad isdefined as: “A religious war with those who are unbelievers inthe mission of Muhammad enjoined especially for the purposeof advancing Islam and repelling evil from Muslims.” “

56. By referring terrorist organizations, the Special PublicProsecutor argued that, in the name of Jihad these organizationsare engaged in destructive activities. As an example he has referredterrorist attacks on World Trade Organisation, attack on Parliamentof India and on Hotel Taj of Bombay. In this case we are notconcerned about the other incidents and we have to see thematerials placed in the present case. If we fall back to the evidencePW-65 we can see that he has categorically stated that some ofbooks which were seized in this case are provocative, dangerousand also anti-India. PW-65 is a responsible person. Therefore,though he has not furnished the entire translation the gist of thebook which he has furnished has to be accepted.”

20. Considering the recovered articles and their connection soughtto be established through the other material on record and the inferencethat could be drawn from such aspects, the Trial Court concluded:-

“In the foregoing paras I have also discussed about theseizure of provocative articles from Accused Nos.2 and 3 whichare dangerous and anti -national. I have also discussed in theforegoing paras about the seizure of explosive substance, armsand ammunitions by the Investigating Officer from Accused Nos.2,3, 4 and 6 at different places. It is true that when the AccusedNo.3 was arrested, the Investigating Officer has seized someexplosive substance. But, with respect to Accused Nos.2, 4 and 6based on their voluntary statement explosive substance, and armsand ammunitions were seized. As held in the decision reported in2007 Crl. L.J. 1386 which I have mentioned above, in the presentcase also presumption under Section 111A of Indian EvidenceAct cannot be drawn. But, in the said case – law it is also heldthat it is incumbent on the prosecution to prove that the collectionof men, arms and ammunitions was for no other purpose, but toprepare to wage war against the Government of India to establishthe offence under Section 122 of Indian Penal Code and it is A

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Anecessary for the prosecution to establish that the fire power orthe potential devastation which could be caused by the arms andammunitions recovered from the accused was such that it wouldpoint to the design to prepare to wage a war against Governmentof India. As I mentioned above the I.O. has seized explosivesubstance from Accused No.6. Ballistic expert opinion and F.S.LBReport of explosive substance are in favour of the prosecution. Itis true that the documents seized from Accused No.1,5 and 7does not amount to incriminating. I have also observed thatconfession statement of the accused does not help the prosecutioncase. But, as I discussed above Ex.P92 clearly goes to show theirCactive involvement in Jihad activities. Merely because there is areference of word ‘Jihad\ that alone does not constitute wagingwar, but at Ex.P92 there is a reference to such an extent that theAccused No.1 assured to supply gun, bomb, etc. for Jihad, Ex.P92(h) further goes to show that in Jihad meeting Accused No.4 andAccused No.6 were entrusted to identify the important place andDDargas, which goes to show that the accused had intention tocommit the terrorist activities, such as, blasting of important placesincluding Dargas. The circumstances which I discussed abovegoes to show that Accused No.1 to 6 conspired and abetted towage war against the Government of India and they have madeEthe preparation in this regard, so also with a common intentionthey have kept explosive substance, arms and ammunitions in thesecret place. No materials were placed about the involvement ofAccused No.7. As the activities of Accused Nos.1 to 6 at thepreparation stage I am of the opinion that Section 153-A and 153-B of Indian Penal code does not attract. With these observationsFI answers these points partly in affirmative and partly in negative.”

21. After placing reliance on the decisions of this Court in KeharSingh and ors. vs. State (Delhi Admn.)[9] and Nazir Khan and othersv. State of Delhi[10], on the aspect of conspiracy entered into by theAccused and the nature of offences committed by them, the Trial CourtGobserved: - “73. In the above said decision their Lordships have also observedthat the most important ingredient of the offence of conspiracy is 9 AIR 1988 SC 1883: 1988 SCR Suppl(2) 24

H10 AIR 2003 SC 4427: (2003) 8 SCC 461

the agreement between two or more persons to do an illegal act.The illegal act may or may not be done in pursuant of agreement,but the very agreement is an offence and is punishable. Referenceto Section 120-A, 120-B of Indian Penal Code would make theseaspects clear beyond doubts. Entering into an agreement by twoor more persons to do an illegal act or legal act by illegal means isthe very quintessence of the conspiracy.”

22. In light of the discussion as aforesaid, the Trial Court by itsjudgment dated 17.12.2011 acquitted the Accused of charges under theprovisions of the 1967 Act for want of requisite sanction. Further, itacquitted A-7 of all the charges but found A-1 to A-6 guilty as under:- “Acting under Section 235(2) of Criminal Code of Procedureaccused No.1 to 6 are convicted for the offences punishable underSections 120-B, 121-A, 121 of the Indian Penal Code, Sections 5and 6 of the Explosive Substances Act and Section 25 and 26 ofthe Arms Act.

Acting under Section 235(1) of Criminal Code of Procedure theaccused No. 7 is acquitted for the offences punishable underSections 10, 13 of the Unlawful Activities (Prevention) Act, Section120-B, 121-A, 121, 153-A, 153-B of the Indian Penal Code andSections 5 and 6 of the Explosive Substance Act and Sections 25and 26 of the Arms Act.

Acting under Section 235(1) of Criminal Code of Procedureaccused Nos. 1 to 6 are acquitted for the offences punishableunder Sections 10 and 13 of the Unlawful Activities (Prevention)Act and Sections 153-A, 153-B of Indian Penal Code.”

By its Order of Sentence dated 19.12.2011, the Trial Court imposedsubstantive sentences, as tabulated in paragraph 2 hereinabove.

23. Four appeals, as detailed in paragraph 3 hereinabove, arisingfrom the judgment and order passed by the Trial Court, were dealt withand disposed of by the High Court vide its judgment and order presentlyunder challenge.

A) On the issue of sanctions accorded in respect of variousoffences, the High Court found: - “34. As per Section 45 of Unlawful Activities (Prevention) Act,1967, the Central Government has named the Secretary of the A

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State Government, Home Department to be the competentauthority to issue sanction order. In this case, PW-73 Bipin GopalaKrishna, Additional DGP has perused the entire materials on recordand recommended for grant of sanction order to the StateGovernment, Home Minister and the Chief Minister and after itcame back to him, he in fact, found sufficient materials and primafacie case to grant approval, that means he has taken the decisionto accord sanction as under the provisions of IPC, the Governmentis the sanctioning authority. Perhaps that may be reason, he hassent the papers to the Government, but actually it is shown that hehas taken the decision on finding prima facie material that it is afit case to grant sanction order and in fact, while file came backfrom the Chief Minister and the Home Minister’s office, consentingto accord sanction, he sent the same to the Under Secretary tocommunicate the decision taken by him and the Government orderto the police that, it is a fit case to prosecute the accused. TheGovernment and PW-73 have rightly accorded sanction underSection 196 of Cr.P.C. and section 45 of the Unlawful Activities(Prevention) Act.

35. What is to be looked into from the evidence of these witnessesis that PW-73 Bipin Gopala Krishna, Addl. D.G.P., Internal Security,has deposed that while he was working as a Secretary, P.C.A.S.,Home Department, Bengaluru, on 1.4.2006 he received a requestfrom the Commissioner of Police, Bangalore City, seeking sanctionfor prosecution from the Government and he is the competentauthority to issue sanction order. The entire materials passedthrough him has been examined by him and decided to accordsanction and thereafter he obtained the ratification from theGovernment and then ordered to issue sanction order through theUnder Secretary. We can understand if PW-73, who was the thenSecretary to the Home Department has not at all come to theconclusion that it is a fit case to accord sanction, the things wouldhave been different, but he has rightly applied his mind and takena decision. The Under Secretary of the Home Department hasonly communicated the sanction order on behalf of theGovernment.

36. As could be seen from the entire records, we would say thatit is the decision taken by PW-73 on behalf of the Government.

Therefore, in our opinion, the sanction accorded to prosecute thecase u/s.120- B, 121, 121-A, 122, 124-A, 153-A and 153 and aswell under the Unlawful Activities (Prevention) Act, 1967 arevalid and correct. The trial Court has persuaded itself that it isonly the Under Secretary who has taken the decision, and wronglyrejected the sanction order so far as it relates to the offence u/s.10 and 13 of the Unlawful Activities (Prevention) Act, 1967. Inour opinion, the said stand taken by the learned Trial Judge is notcorrect. The trial Court ought to have held that even the sanctionaccorded to prosecute the accused for the offence punishableunder Sections 10 and 13 of the Unlawful Activities (Prevention)Act, 1967 is also valid. We accordingly hold that the trial Courthas committed a serious error in doing so. We hold that theprosecution has also proved that the sanction accorded by PW-73though it is ratified by the Government or approved by theGovernment, it is virtually the decision taken by PW-73 is evident.Therefore, the sanction order so far it relates to Section 10 and 13of the Unlawful Activities (Prevention) Act, 1967 is also valid andcorrect.

37. So far as it relates to sanction under the Explosive SubstancesAct and u/s.39 of the Arms Act, PW-70 Ajay Kumar Singh, theCommissioner of Police has accorded sanction, while he wasworking as Commissioner of Police, at Bengaluru. He hascategorically stated in his evidence that he has issued the sanctionorder as per Ex.P-266. He has deposed that, on 1.4.2006, he hasreceived a report from the Deputy Commissioner of Police, CentralDivision along with the report of the ACP, Yeshwanthpur and alsothe documents like FIR, FSL report etc., and after studying thereport and the documents he has accorded sanction as per Ex.P-266 and he has stated that he has also issued sanction u/s.7 of theExplosive Substances Act after going through the entire materialson record. Therefore, the Commissioner of Police, city ofBangalore has issued sanction order under Ex.P-266 and P-267for the offence punishable under Arms Act and ExplosiveSubstances Act.”

B) While affirming the acquittal of A-7, the recoveries from A-1to A-6 and the material on record were considered from the standpointas to whether conspiracy as alleged was proved or not. The questionswere posed as under:- AB

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“78. In this background, Court has to consider whether anymaterials are available to show the conspiracy between accusedNos.1 to 6 who are convicted by the trial Court and find out whetherthe recovery of the incriminating articles at the instance of accusedNos.2 to 7, whether it establishes the conspiracy being heldbetween accused nos.1 to 6 and that conspiracy is with regard todestabilize the Government of India and also create any communaldis-harmony amongst the people of India and whether they areanti social elements and also their conduct coupled with recoveryamounts to any offence committed by them as invoked by thepolice.”

C) While dealing with the effect of Exhibits P-27 and P-92 in lightof the evidence on record, the High Court stated:- “87. PW4-Firoz @ Firoz Pasha has admitted that A-2, A-4, A-5and A-6 including A-1 were all known to him and he knew A4since childhood. He further deposed that there were two Masjidsand this witness was also attending Masjid to offer Namaz. Infact, the accused Nos.2 to 6 were ousted from Masjid as theirNamaz procedures were different. He has also stated admittingthat A-1 came to Chinthamani and A-2 has introduced A-1 to himon the ground that A-1 and A-2 had become friends at SaudiArabia. Though, he denied that, in the said meeting they met eachother at Chinthamani, A-1 has given a provocative speech to otheraccused persons that the Muslims have to declare Jihad and hewould supply money, Bomb and also give training to destroy India.However, it clearly goes to show that A-1 to A-6 were known toeach other and A-1 came to Chinthamani and he met all the otheraccused persons and had talk with them. In this background, onehas to understand the contents of Ex.P-92.”

D) The contents of Exhibit 92 were then considered as follows:- “94. The sum and substance of the recitals in Ex P 92 (c) and (d)disclose that ‘Jihad’ meeting was held between the accused personsand other so called trustees under the guise of a religious meeting.Abdul Rehaman (A-1) was introduced to the others by AfsarPasha (A-2). A-1 addressed the meeting saying that in IndiaMuslims are treated very badly (terribly/dreadfully) and BabriMasjid has been demolished. Muslims were killed in Gujarat andall the Muslims have to fight against this. A-1 would supply money, guns, bombs and explosives etc., In the same meeting, it is alsonarrated that the other trustees Firoz, Jameer and Ameer whohave not supported the speech of A-1, they were reluctant toparticipate by saying that if they do such illegal acts as preachedby A-1, that, it would cause inconvenience to the Muslimcommunity, in India and therefore, they all went away from themeeting. But other persons A-2 A-4 and A-6 who have acceptedthe speech of A-1 subscribe their signatures to the said meetingincluding A-1 who has put his signature and the meeting wasconcluded at 8.00 p.m.

95. Of course, there is some over-writing with regard to the date,which appears to have been overwritten as 10 instead of 12 andthere is over-writing with regard to the name of Firoz at itemNo.7. But the evidence of the above said witnesses as alreadynoted, it is their case that they are conducting meetings togetherfor the benefit of the Trust and that they admitted that Ex.P-92 istheir meeting book. It is the responsibility of the accused to explainif there is any over-writing or any mistake in the said document,because even the signatures of A-1, A-2, A-4 and A-6 have alsobeen sent to experts and the experts have also given opinion thatit is the signature of A-1, A-2, A-4 and A-6.

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100. The sum and substance of the Kannada version goes toshow that A-5 addressed the said meeting by saying that Islamwas sent in the hands of Paigambar, which is superior to all theother religions. The ‘Jihad’ has to be declared if anybody causesdamage to it. A-6 also addressed the said meeting by saying that‘Jihad’ has to be started by offering lunch (Davat) and if anybodyopposes, ‘Jihad’ is to be declared at any time. Afsar Pasha (A-2)also addressed the said meeting saying ‘Jihad’ has to be declaredin the name of God in case anybody is killed they will become‘Shahid’. A-2 also further addressed explaining what is meant byKuwath, that “Kuwath” means “Power” and referring to thehand-writings of the book given by Tariqsahni and Bangladesh.A-2 told that the power is in Bombs, Bandooks and AK-47. A-2instructed A-4 and A-6 to identify the Dargas and other importantplaces for that they all agreed. Ex.P92(g) also goes to show thatthe next meeting was fixed on 31.12.2016 by saying so the 3rdmeeting was concluded at 8.00 p.m.

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101. Looking to the above said Ex.P-92(c) to (h), it discloses andat any stretch of imagination, it cannot be said that they are allreligious meetings pertaining to the Trust, that they havecategorically admitted that this Ex.P-92 is the minutes bookpertaining to the Trust, there is not even a mention of any objectivesof the Trust and the policies. On the other hand, the entire meetingswere held for the purpose of taking action of revenge, fordemolishing of Babri Masjid and killing of Muslims in Gujarat andfor that purpose they are taking training and collecting guns, bombsetc., In this background, the court has to understand the purposeof meeting of minds of A-1, A-2, A4 to A-6 who have actuallyparticipated in these meetings particularly A-1, A-2, A-4 and A-6in the first meeting and A-2, A-4 to A-6 in other meetings. Ofcourse, conspicuously A-3 has not been participated in any ofthese three meetings.”

E) Other material on record was considered thus:

“116. Apart from giving the above said report, in fact, some ofthe seized books have been shown to him. After seeing Ex.P-76,which is named “Sunflower note book” as true, hand written byone Shaik Abdul, belonging to Soudi Arabia which was publishedin Bangladesh. The contents of the said document spoken to byPW-65 is that- “Democracy is not suitable to establish Islam religion andit is inevitable to kill to secure power’.

He has also written in the said book at page 16, that “theMuslim community is suppressed by majority communities andthe aim is not to awoke Muslim community and the Muslim shouldnot prepare with arms.” The meaning is majority communitiesare attacking on the Muslims. PW65 has further deposed that inthe said book, it is also written that in a democratic system, theMuslims cannot secure power. The witness has also deposed bylooking into Ex.P-81, the book ‘Taqbir’ which contain thequotations like “India will destroy”, to take gun in the hands andLeT destroy the Kaphirs and ‘Lashkar-e-Taiba’ is fighting forgood things. PW-65 on seeing Ex.P-64 a book by name ‘JadulMujahid’ book and its gist is ‘Prophet has told to attack on India.Further, PW-65 has clarified that at no point of time, ProphetMohammad has stated so. However, he states that the narration

of the fact in such a manner in Ex.P-64 is provoking and it is verydangerous. He has stated that the book Ex.P-89 ‘Mujahid-ke-Azad’ is also provocative and anti national. He has also admittedthat the Kaphirs are those who deviate from the Islam path’ andEx.P-81 also says that ‘waging war’ against non Muslims. It isadmitted that some of the books contain about ‘Jihad’. This witnesshas also stated that after looking into the books he has given suchinformation he has also admitted that he has not read the entirebooks, but whatever the contents shown to him, he has actuallydisclosed the same to the court. On looking into the above saidevidence of PWs.50, 72, 65 and 29 coupled with Ex.P92 as referredto above, we can safely hold that the accused persons 1, 2, 4 to 6have indulged in provocative and dangerous activities against India,though their acts have not been implemented, nevertheless, theirmind set has been made very much clear. PW-65 is a responsibleperson has categorically stated that the books which wererecovered at the instance of A-2, A-3 and A-5 have clearlydiscloses that they contain very dangerous articles and anti Indiarecitals particularly those books provoked for destruction of theIndian country.”

F) The recoveries made from the individual Accused as well asthe impact thereof was then considered as under: - “120. We have already extensively discussed about recovery ofsome articles at the instance of the accused persons. Of course,there is no incriminating articles recovered at the instance ofAccused No.1. Though voluntary statement of Accused No.1 wasrecorded as per Ex.P.262 and under Exs.P32 and P39 (mahazars),the police have recovered 1 pocket diary (MO.1), one mobilephone (MO.10), 1 passport (Ex.P40), 6 chits containing phonenumbers (Exs.P41 to P46) and 4 passport size photographs(Exs.P47 to P49). In fact these articles are not incriminating, asthe prosecution has not able to establish any connectivity of thesematerials with Accused No.1 with other accused persons, thoughthese materials recovered includes the mobile phone of AccusedNo.1.

121. It is evident from the records that from A-2, under Exs.P.129and P.69, the police have recovered 1 mobile phone (MO.17), ReBook (MO.18), a small diary (Ex.P130), DL (Ex.P131), STD Bill A

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(Ex.P.132), Visiting Card (Ex.P133) and a bill with phoneNos.(Ex.P134) and also one letter head (Ex.P70), 1 postal cover(Ex.P71), letter (Ex.P72), 1 passport from (Ex.P.73), 1 Affidavit(Ex.P74). According to the Investigating Officer, he has notcollected any material to connect the accused with these articlesin the crime, therefore, they are also not relevant to be discussed.However, voluntary statement of A-2 was recorded under ExP.273and on 21.02.2016 Mos.2 to 9 were recovered at the instance ofA-2, which are very much important. In fact, these articles areincriminating and in fact they are dangerous articles i.e. Electricaldetonators, Gelatin Sticks, 114 metal pellets and 3 hand grenadeand other articles. Though under Ex.P.105, some books have beenrecovered, we have discussed the connectivity of those bookswith the crime already in the aforenoted paragraph.

122. From A-3, on the basis of his voluntary statement (Ex.P.272)under a mahazar (Ex.P.15), some chits containing phone numbers,small telephone diary, courier receipts, small chit of accounts, threephotographs were recovered, which are marked at Exs.P.51 toP.59). These are also not incriminating and no connectivity isestablished from these articles. However, as we have mentioned,the police have also recovered 10 Gelatin sticks and detonatorsfrom these accused, which are incriminating and it gone withoutany explanation. Under Ex.P62, one passport was also recoveredas per Ex.P63; fromA-3 some books have also recovered underEx.P68, which we have already discussed.

123. From A-4, under Ex.P112, the Police Officer has recoveredone reliance note book, paper with phone numbers, visiting cardand a leather purse, which are marked as Exs.P113 to P.116 underMO.56. According to the Investigating Officer, these things arealso not incriminating materials and no connectivity has beenestablished. However, under Ex.P169, on the basis of voluntarystatement (Ex.P.275), the Investigating Officer has recovered oneTin Bomb from this accused and also recovered under Ex.P.152some books which are incriminating and also recovered from A-4 and A-6 a book regarding ‘Jihad’ at Ex.P167, which we havealready discussed.

124. From A-5, as we have already discussed in detail, on thebasis of his voluntary statement (Ex.274), the police have recovered one note book (Ex.P76) and other books, and also asmall diary (Ex.116), in respect of which no connectivity isestablished. Therefore, from A-5 no incriminating materials havebeen recovered except one note book (Ex.P276) under mahazar(Ex.P75).

125. From A-6, a small diary was recovered and under Ex.160(mahazar) some incriminating materials have been recovered i.e.1 small tin bomb, 1 tiffin box bomb with wires, 2 electricaldetonators, 2 wires and country made revolvers marked at MO.23and live bullets (MOs.24 & 25) are also recovered under mahazars,which are marked at Ex.P56 to P166. Except the bombs, theconnectivity of Electrical Detonators, the other materials recoveredwith the crime are not established.

126. From A-7, the police have recovered under Ex.P.137 onepurse (MOs.21); Nokia mobile (MOs.22), telephone number slips,visiting cards and STD booth bills marked as Exs.P.138 to P.142and also recovered one passport (Ex.P.146), one book in Urduwith picture of crossed guns (Ex.P.147) and a small diary(Ex.P.148) and 07 paper pieces marked at Exs.P.149 to P.151).

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130. On careful perusal of the statement of these accused personsrecorded under Section 313 of Cr.PC., there is no sufficientacceptable explanation by them as to why they were possessingthese contraband articles, which are sufficient to cause damageto life and property of the public at large, if they explode. It is alsonot explained as to the reason for them to keep all these articles.According to the learned counsel for the accused, the accusedpersons are law-abiding citizens. If they are really law-abidingcitizens, why they have to keep such dangerous articles with them.When there is no reason or explanation by the accused personsfor possessing the said incriminating articles with them, then itcan be safely inferred that, the said articles were kept by themfor the purpose of doing some illegal acts in furtherance of theirconspiracy, as detailed supra.

131. Recovery of the above said articles have to be tested withother materials on record. As we have already discussed, thesearticles have some connection with the conspiracy that has been A

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occurred between some of these accused persons. Of course,there is no material to show that A-3 and A-7 in any mannerparticipated in the conspiracy, as we have already discussed. Atthe cost of repetition, we may say that in Ex.P92 dated 10.12.2003,19.08.2005 and 18.12.2005, the accused persons, who haveparticipated in these meetings, have taken oath to take revengefor the demolition of Babri Masjid and killing of Mohhammadansat Gujarath. They have decided to join their hands for ‘Jihad’ bytaking training. That means, they have to possess bombs, gunsand other things and use them whenever instructed by theirsuperiors. Particularly in the meeting held on 18.12.2005, theaccused persons had also discussed with regard to declaration of‘Jihad’ against the persons, who have no belief in Islam and theyhave also decided to possess bombs, rifles, AK-47 etc.”

G) The material on record was then looked into to consider as towhat offences were established. The relevant discussion was:-

Statutes

“141. Applying the materials available on record sofar as theseoffences are concerned, admittedly the Investigating Officer inhis evidence has admitted during the course of the cross-examination that, except the voluntary statement of accusedpersons stating that they are working for an Association which isdeclared as ULF i.e., LeT and that A-1 is working as leader forSouth India pertaining to the said ULF Association. He alsoadmitted that, there is no other material before the court and hehas not collected any materials to show that any of the accusedpersons are either members or taken any part in meeting of suchAssociation or contributed or received any contribution for thepurpose of such association or assisted the said association in anymanner. He has also stated that he has received some factualinformation from his informants that the accused persons areconnected to LeT, which is an unlawful banned Association.Admittedly, the voluntary statement of the accused persons cannotbe relied upon by the court which incriminates the accused, as thesame is hit by Section 25 of the Indian Evidence Act. Theprosecution has to prove the said allegations independently. Noneof the witnesses have deposed anything about any of the accusedpersons taking part or committing, advocating, abetting andinstigating the commission of any unlawful activities as per the provisions under Sections 10 & 13 of the Unlawful Activities(Prevention) Act. Though we came to the conclusion that sanctionaccorded by the competent authority to prosecute the accusedpersons for the offences under Sections 10 & 13 of the said Act,but the evidence placed before the court does not establish any ofthe said offences either under Sections 10 & 13 of the Act.Therefore, we do not find any strong reasons to interfere with thejudgment of the trial court in sofar as acquitting the accused forthe offences under Sections - 10, 11 & 13 of the said Act. Hence,there is no need for this Court to discuss the decisions cited byeither of the parties to the proceedings.

145. On perusal of the evidence adduced before the court, theprosecution has relied upon the evidence of PWs. 1 to 8 and 13 sofar as to prove the said provisions that these accused personsparticularly A-2 and A-6 in furtherance of their conspiracy, wantedto induct PWs. 1 to 8 & 3 to join their hands for the purpose ofdestroying peace and create unlawful disharmony in the societyetc. But, as we have discussed, the above witnesses have turnedtotally hostile to the case of the prosecution and they never statedanything about the conspiracy hatched between the accused, northey have stated that A-2 and A-6 have provoked them in such amanner which amounts to any prejudicial to national integrity orattempt to promoting enmity between different caste, creed,religions, races, place of birth, residence, etc. In this manner alsowe have absolutely no difference of opinion to that of the opinionof the learned Sessions Judge. We affirm the judgment by sayingthat the prosecution has also failed to prove the ingredients ofSections- 153-A and 153-B of IPC in order to establish the linkbetween the accused and the offices alleged. Hence, acquittal ofthe accused persons for the said offences under Sections- 153-Aand 153-B of IPC also does not deserve to be interfered with bythis court.

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consonance with such conspiracy. Therefore, Section 121 neednot be fully established that the accused persons have waged waragainst the Government or attempted to wage war against theGovernment or attempted to wage war or abetted to wage war.Even mere conspiracy to wage war or attempt wage war or abetto wage war, is punishable under Section 121 and if the conspiracyis to overawe the Government, by means of criminal force or theshowing of criminal force shall be punished with imprisonmentfor life or with imprisonment which may extend to 10 years andfine.

149. Section 120-B says that, when two or more persons agreeto do any illegal act or an act which is not by illegal means, suchan agreement is designated a criminal conspiracy and if any suchconspiracy to commit an offence is punishable with death orimprisonment for life. Then such persons are liable to punishmentfor a term of two years or more.

150. So, in order to attract Section 120-B, it is clear from theabove said provision that, the prosecution has to establish that theaccused persons are more than two in number and they haveentered into an agreement and that agreement is designed for thepurpose of commission of an illegal act or doing an act by illegalmeans and such illegal acts amounts to commission of offencesunder the provisions of IPC and other laws. So far as Section 121of IPC is concerned, the prosecution has to prove that the accusedpersons have actually waged war against the Government orattempted to wage war against the Government.

151. From the above provisions, it is abundantly clear that if theconspiracy relied upon by the prosecution is with reference toSection 121 of IPC, then the said conspiracy is exclusively andspecifically punishable under Section 121-A. Under suchcircumstances Section 120-A and 120-B of IPC cannot be invoked.If it is done, the same amounts to imposing double punishment.Hence, we are of the opinion that the conviction and sentenceunder Section 120B is not sustainable.

152. It is abundantly clear that, if the conspiracy relied upon bythe prosecution is with reference to Section 121 of IPC, the saidconspiracy is exclusively and specifically punishable under Section 121 of IPC, the said conspiracy is exclusively and specificallypunishable under Section 121-A, but under such circumstances,Sections 120-A and 120-B cannot be invoked.”

H) After considering the decisions of this Court in State (NCT ofDelhi) v. Navjot Sandhu @ Afsan Guru[11] and Nazir Khan & Ors.[10],the High Court concluded that the ingredients of Section 121 of the IPCwere absent in the instant case but the provisions of Section 121-A ofthe IPC were attracted. It was observed:

“159. The accused persons have also discussed with regard tothe funding for ‘Jihad’ by means of an association and also theyhave taken a decision to prepare themselves with the weapons inorder to fight against such activities. These activities of the accusedclearly disclose that, they wanted to take action against theGovernment etc.

160. As we have also observed that some of the books whichwere seized from the custody of the accused persons, it alsodiscloses that those books must have been persuaded the accusedpersons to pass such resolution under Ex.P92. Those bookscontained anti-national recitals which says that India will bedestroyed and Mohammadans should take guns and fight againstIndia, etc. So the court has to couple the entire material on recordto draw an inference as to what exactly the intention of the accusedpersons in holding such meetings. Though we are of the opinionthat no damage has been done, no activities have been taken placein consonance with their conspiracy and there is no heavymagnitude of any damage or loss to the country, neverthelesstheir prime intention is to cause heavy damage to the people andthe country. We are able to understand this intention and mind setof the accused coupled with they joining together and conspire toexecute such an intention. In our opinion, their intention and mindsetare sufficient to attract the provision under Section 121. A thoughnot under section 121 of IPC.

161. We would also like to mention here that some of the accusedpersons noted above have gone further and have collectedElectrical Detonators, Gelatin sticks and bombs. This Conductshows that they have decided to implement the decision taken by A

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them, slowly and gradually and for that purpose only startedcollecting the materials of such magnitude sufficient to destroyIndia. But they were caught at the initial stage of conspiracy whileplanning as to how to execute their decision. It is not necessaryfor the courts to wait for till such time, allowing the accusedpersons to collect so much of materials and only after causingdamage to the country, countrymen and the property of the countrymen, and then take action. In our sincere and honest opinion, suchactivities even at the stage of conspiracy itself should be nippedat the bud. Otherwise, it may end up in causing irreversibledamage. Therefore, we are of the considered opinion that thetrial court has not committed any mistake in convicting the accusedpersons and sentencing them for life. However, the trial Courtinstead of sentencing the accused under section 121-A for life,inadvertently by mistaken notion invoked Section 120-B of I.P.C.,which needs to be corrected.”

I) Finally, the operative order passed by the High Court was:- “The appeal filed by A1, A2, and A4 to A6 in Crl.A.No 220/2012 and the Appeal filed by the State in Crl.A.No 530/2012 andthe Appeal filed by Accused No.3, in Crl.A.No.1123/2013 arehereby partly allowed. The Appeal filed by the State inCrl.A.No.531/2012 is hereby dismissed. The Judgment ofconviction and sentence passed by the trial Court is modified.Consequently,

(i) A-1, A-2 & A-4 to A-6 are hereby convicted for the offenceunder Section 121-A of IPC. Sentence passed by the trial Courtis enhanced, the Accused shall undergo rigorous imprisonmentfor life for the offence under Section 121-A of IPC and to payfine of Rs.5,000/- and in default, to undergo S.I. for a period ofone year. (Impugned judgment of conviction is confirmed tothat extent and sentence is enhanced). However ,A1 to A6are acquitted of the charge under Section 121 and 120B ofIPC. Accused No 3 is acquitted also of the charges undersection 121 A of I.P.C. (to that extent conviction and sentenceis set aside).

(ii) A2, A3, A4 and A6 are hereby sentenced to undergo S.I.for 7 years and shall pay fine of Rs.5,000/-and in default toundergo S.I. for 1 year for the offences under section 5 of the

Explosive Substances Act 1908. (to that extent impugnedjudgment is confirmed). However, Accused No.1 and 5 areacquitted of the Charges under section 6 of the said Act. (tothat extent the impugned conviction and sentence is set aside).

(iii) Accused No.6 is convicted for the offence under sections25 and 26 of the Arms Act and sentenced to undergo S.I. for aperiod of 5 years and shall pay a fine of Rs.5000/- in default toundergo S.I. for one year for the offence under section 25 ofthe Arms Act. He is also sentenced to undergo S.I. for 3 yearsfor the offence under section 26 of the Act. (to that extent,impugned conviction and sentence is confirmed). However A2,3 and 4 are acquitted for the offence under section 25 and 26of the Arms Act. (to that extent judgment of conviction andsentence is set - aside).

(iv) The judgment of Acquittal passed by the Trial Court so farit relates to Accused No 7 is not disturbed (confirmed).

v) Sentences of imprisonment shall run concurrently. Set offfor the period of imprisonment already undergone by theAccused persons shall be given under section 428 of CriminalProcedure Code.

vi) As we found that A3 has already undergone the period ofimprisonment imposed upon him, he shall be released forthwith,if he is not required in any other case.

(vii) Registry is hereby directed to communicate the operativeportion of the judgment to the concerned Jail authorities forappropriate action.”

24. Being aggrieved by the decision of the High Court, instantappeals by special leave have been preferred by Accused Nos. 5, 6, 1and 4. As stated hereinabove, neither any appeal has been filed by A-2and A-3 challenging their conviction nor any challenge is raised by theState against dismissal of its appeals.

The scope of these appeals is thus confined to the challengeraised by Accused Nos. 5, 6, 1 and 4

25. Special Leave Petitions preferred by A-5, A-6 and A-1, fromwhich their appeals arise, came up on 21.10.2016, when notice wasissued by this Court restricted to the question of sentence to be imposed A

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Aon them. An affidavit sworn by A-1 on 28.11.2016, was thereafter filedsubmitting inter alia that he was 21 years of age when the offence wascommitted and if let out of jail on sentence undergone, he would supporthis family by earning an honest living, without causing any harm to fellowcountrymen. Similar affidavits were filed by the other Accused. Later,the Special Leave Petitions of all the four accused came up on 28.04.2017,Bwhen the Court called for a report from the National Investigation Agency.Thereafter, by order dated 31.1.2018, Special Leave to Appeal wasgranted by this Court, leading to registration of these appeals.

26. We heard Mr. Siddhartha Dave, Ms. Nitya Ramakrishnanand Mr. Ratnakar Dash, learned Senior Advocates for A-6, A-1 and A-C4 respectively, Mr. Farukh Rashid, learned Advocate for A-5 and Mr.Nikhil Goel, learned Additional Advocate General for State of Karnataka.

The role of the National Investigation Agency in these appealswas only pursuant to the order dated 28.4.2017. Since the submissionswere advanced on merits, there was no occasion for hearing the NationalDInvestigation Agency.

27. At the outset, the preliminary submission advanced on behalfof the State must be dealt with. It was submitted that the order dated21.10.2016 having restricted the scope of the matters to the issue ofsentence to be imposed on the accused, the submissions regardingEconviction need not be entertained. Relying on the affidavits filed by theAccused which led to the passing of the order dated 28.04.2017, it wassubmitted that even the Accused also understood the scope of the matterbeing restricted to the quantum of sentence. In response, reliance wasplaced by the learned counsel for the Accused on the decision of thisCourt reported in Yomeshbhai Pranshankar Bhatt v. State of Gujarat[12]Fto submit that it would be entirely up to this Court to consider the matteron merits and not restrict the submissions in any manner. Paragraphs 4and 8 of said decision are:- “4. The learned counsel for the appellant urged that though at thetime of issuing notice, this Court limited its rights to raise pointsGonly within the confines of Section 304 of the Penal Code, theCourt is not bound at the time of final hearing with that directiongiven while issuing notice and the appellant is entitled to urge allthe questions including his right to urge that he should have beenacquitted in the facts and circumstances of the case.

8. The provisions of Article 142 of the Constitution have beenconstrued by this Court in several judgments. However, one thingis clear that under Article 142 of the Constitution, this Court inexercise of its jurisdiction may pass such decrees and may makesuch orders as is necessary for doing complete justice in any caseor matters pending before it. It is, therefore, clear that the Courtwhile hearing the matter finally and considering the justice of thecase may pass such orders which the justice of the case demandsand in doing so, no fetter is imposed on the Court’s jurisdictionexcept of course any express provision of the law to the contrary,and normally this Court cannot ignore the same while exercisingits power under Article 142. An order which was passed by theCourt at the time of admitting a petition does not have the statusof an express provision of law. Any observation which is made bythe Court at the time of entertaining a petition by way of issuingnotice are tentative observations. Those observations or orderscannot limit this Court’s jurisdiction under Article 142.”

Considering the facts and circumstances on record including thefact that while granting Special Leave to Appeal, the matter was notrestricted with regard to the question of sentence, we proceed to considerthe submissions advanced on behalf of the appellants on merits ratherthan restrict the scope of the matter to the issue of sentence.

28. It was submitted on behalf of the appellants:- a)The Prosecution witnesses namely PWs 1 to 8 having failedto support the case of Prosecution, there was no substantialevidence on the basis of which it could be said that theallegations against the accused collectively or individuallywere substantiated. Further, the confessions of all theconcerned Accused were also not accepted by the Courtsbelow.

b)The basic charges namely one under Sections 121, 153Aand 153B of the IPC having not been established, the onlysubsisting charge was one under Section 121A of the IPC,which was also devoid of any substance.

c)The recovery of explosive substances, Diary Exh.P-92 andother material, by themselves were insufficient to sustainthe charge under Section 121A of the IPC.

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Ad)Reading the provisions of Section 120B(1) and Section 115of the IPC, where the basic offence under Section 121 wasnot committed, the sentence could not be greater than sevenyears.

e)In any event of the matter, the trial court having awardedBsubstantive sentence of imprisonment for seven years underSection 121A of the IPC, there was no reason for enhancingthe quantum of punishment to life imprisonment. The factson record did not justify such exercise; f)The only involvement of A-1 was the fact that he hadCattended the first meeting of the Trust, which would at bestget substantiated through the evidence of handwriting expert.However, viewed in light of the admission given by theInvestigating Officer that A-1 did not understand Kannadalanguage, signature below the text in Kannada would notmake A-1 liable in any manner in the absence of any otherDsubstantial evidence or material.

g)None of the witnesses had identified A-1 in court and neitherthe text of Exh - P92(c) nor the case of the Prosecutionthat A-1 signed the same, was put to him in his examinationunder Section 313 of the Code[13].E

h)Apart from the solitary material of the first meeting of theTrust, there was nothing against A-1, not even a suggestionof any other meeting or contacts with the rest of theAccused.

i)In any case, the first meeting was said to have been held inFthe year 2003, whereas the recoveries in the instant caseare of the year 2006.

j)In terms of Section 196 of the Code, sanction to prosecutethe Accused for having committed offence punishable interalia under Chapter VI of the IPC was mandatory and theGsanction placed on record did not satisfy the requirements.

29. It was submitted on behalf of the State Government:

a)The material on record, especially huge quantities ofexplosive substances as well as the literature and books H13 Code of Criminal Procedure, 1973

recovered at the instance of the concerned accused putthe matter beyond any doubt.

b)The Diary Exh.P-92 very clearly established the intent ofthe Accused who had assembled, who held meetings andhad appended their signatures below the concernedresolutions.

c)The signatures were identified by handwriting expert, who,duly supported his conclusions with reasons.

d)The movements of A-1, who was not a local person in thetown around the time when the meetings had taken place,further lent corroboration and support to the evidenceconcerning his involvement.

e)Considering the large quantity of recovered explosivesubstances and the other material including books, literatureand Diary Exh.P-92, case was certainly made out forenhancement of punishment.

f)The sanction accorded under Section 196 of the Code wasrightly held to be valid and there was no infirmity on anycount.

30. At the outset, the submissions regarding the correctness andvalidity of the sanction accorded under Section 196 of the Code must beconsidered. The facts on record as set out in Paragraphs 34 and 35 ofthe decision of the High Court disclose, that the matter was consideredby the Office of the Home Minister and the Chief Minister and consentwas accorded to the proposal put up in usual course of business,whereafter, the communication was addressed by the Under Secretary.In the face of these facts, the submission that the sanction was notaccorded by the competent authorities must be rejected. Consistent withthe findings rendered by the Courts below, we hold that the sanction interms of Section 196 of the Code was valid and proper.

The matter regarding sanction accorded in respect of offencespunishable under the Explosives Substances Act and the Arms Act wasalso dealt with by the High Court in extenso and the conclusion arrivedat in Paragraph 37 of its decision does not call for any interference.

31. Turning to the merits of the matter, the evidence on recordcan be classified mainly in following segments:

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a) Oral testimony of Prosecution witness Nos. 1 to 8 and 13.b) Evidence regarding recoveries

i) It is true that Prosecution witness Nos. 1 to 8 and 13 turnedhostile and did not support the case of Prosecution fully. However,it emerges from their testimony that some of them were trusteesof the Trust, minutes book of which was produced on record asExh.P-92. The witnesses accepted the fact that the meetings ofthe Trust had taken place and that some of the Accused did attendthe meetings. PW4-Firoz gave details about the presence andparticipation in the meetings by various Accused including A-1and deposed to the fact that said witness had dropped A-1 at therailway station on his bike.

It is thus clear that though these witnesses did not supportthe Prosecution case fully, some of the features of the Prosecutioncase were substantiated through the testimony of these witnesses.The law on the point is clear that even if a witness is declaredhostile, the evidence of such witness cannot be rejected in totobut the correct approach is to accept it to the extent his version isfound to be dependable on a careful scrutiny thereof[14].

ii) The recoveries of books and literature were completelysupported by the concerned Panch witnesses and thePanchanamas on record. The books and literature did carryinflammatory content and messages. The translations of the originalversions in Urdu were placed on record by the Prosecution. Thevoluntary statements which led to such recoveries and therecoveries themselves were also proved by the Prosecution.

One important piece of material recovered from A-2 wasDiary Exh.P-92. The tenor and text of the contents were capturedquite correctly by the trial court in its judgment as referred tohereinabove. The signatures of the concerned accused wereproved beyond any doubt through the evidence of PW67,handwriting expert.

It thus stood established that the Accused had assembledtogether with the intent as disclosed from the minutes of themeetings of the Trust.

14 C. Muniappan & Ors. Vs. State of Tamil Nadu – (2010) 9 SCC 567;Radha Mohan Singh & Ors. Vs. State of U.P. – (2006) 2 SCC 450.

The explosive substances, details of which are givenhereinabove were recovered from A-2, A-3, A-4 and A-6.Voluntary statements of said Accused and consequential recoverieseffected through Panchas were also duly proved by theProsecution.

32. Before we turn to the question whether the deduction orconclusion, on the basis of the material on record, as stated above, wasrightly arrived at by the Courts below, some of the observations made bythis Court in Lal Singh v. State of Gujarat and Another[15] in the contextof matters involving terrorist activities where arms and ammunitions wererecoveredat the instance of or on disclosure by the accused, must benoted. It was observed by this Court:

“84. The learned Senior Counsel Mr Sushil Kumar submitted thatprosecution has not proved beyond reasonable doubt all the linksrelied upon by it. In our view, to say that prosecution has to provethe case with a hundred per cent certainty is a myth. Since lastmany years the nation is facing great stress and strain because ofmisguided militants and cooperation to the militancy, which hasaffected the social security, peace and stability. It is commonknowledge that such terrorist activities are carried out with utmostsecrecy. Many facts pertaining to such activities remain in personalknowledge of the person concerned. Hence, in case of conspiracyand particularly such activities, better evidence than acts andstatements including that of co-conspirators in pursuance of theconspiracy is hardly available. In such cases, when there isconfessional statement it is not necessary for the prosecution toestablish each and every link as confessional statement getscorroboration from the link which is proved by the prosecution. Inany case, the law requires establishment of such a degree ofprobability that a prudent man may on its basis, believe in the existenceof the facts in issue. For assessing evidence in such cases, thisCourt in Collector of Customs v. D. Bhoormall [(1974) 2 SCC544 : 1974 SCC (Cri) 784] dealing with smuggling activities andthe penalty proceedings under Section 167 of the Sea CustomsAct, 1878 observed that many facts relating to illicit business remainin the special or peculiar knowledge of the person concerned in itand held thus: (SCC pp. 553-55, paras 30-32 and 37)

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“30. … that the prosecution or the Department is not requiredto prove its case with mathematical precision to a demonstrabledegree; for, in all human affairs absolute certainty is a myth,and—as Prof. Brett felicitously puts it — ‘all exactness is afake’. El Dorado of absolute proof being unattainable, the lawaccepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to provethe impossible. All that it requires is the establishment of sucha degree of probability that a prudent man may, on its basis,believe in the existence of the fact in issue. Thus, legal proof isnot necessarily perfect proof; often it is nothing more than aprudent man’s estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearingon the incidence of burden of proof is that sufficiency andweight of the evidence is to be considered — to use the wordsof Lord Mansfied in Blatch v. Archar [(1774) 1 Cowp 63 : 98ER 969] (Cowp at p. 65) ‘according to the proof which it wasin the power of one side to prove, and in the power of the otherto have contradicted’.

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32. Smuggling is clandestine conveying of goods to avoid legalduties. Secrecy and stealth being its covering guards, it isimpossible for the Preventive Department to unravel everylink of the process. Many facts relating to this illicit businessremain in the special or peculiar knowledge of the personsconcerned in it. However, this does not mean that the specialor peculiar knowledge of the person proceeded against willrelieve the prosecution or the Department altogether of theburden of producing some evidence in respect of that fact inissue. It will only alleviate that burden, to discharge which,very slight evidence may suffice.

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37. ‘For weighing evidence and drawing inferences from it’,said Birch, J. in R. v. Madhub Chander [(1873) 21 WR Cr13] (WR Cr at p. 19)‘there can be no canon. Each case presentsits own peculiarities and in each common sense and shrewdnessmust be brought to bear upon the facts elicited’.”

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87. In that case, the Court also referred to the followingobservations in Miller v. Minister of Pensions [(1947) 2 All ER372 : 177 LT 536] by Lord Denning, J.

“That degree is well settled. It need not reach certainty, but itmust carry a high degree of probability. Proof beyondreasonable doubt does not mean proof beyond the shadow ofa doubt. The law would fail to protect the community if itadmitted fanciful possibilities to deflect the course of justice.If the evidence is so strong against a man as to leave only aremote possibility in his favour which can be dismissed withthe sentence ‘of course it is possible, but not in the leastprobable,’ the case is proved beyond reasonable doubt’.”

88. It is true that under our existing jurisprudence in criminal matter,we have to proceed with presumption of innocence, but at thesame time, that presumption is to be judged on the basis ofconceptions of a reasonable prudent man. Smelling doubts for thesake of giving benefit of doubt is not the law of the land. In suchtype of terrorist activities if arms and ammunitions are recoveredat the instance of or on disclosure by the accused, it can be statedthat presumption of innocence would not thereafter exist and itwould be for the accused to explain its possession or discovery orrecovery and would depend upon facts of each case which are tobe appreciated on the scales of common sense of a prudent manpossessing capacity to “separate the chaff from grain”. In suchcases, as stated by Lord Denning, J., law would fail to protect thecommunity if it admitted fanciful possibilities to deflect the courseof justice. If it is established on record that A-20 was found in thecompany of A-1 and A-2 at Aligarh and that at Bombay also hehad introduced himself as a friend of A-1 and A-3 to PW 87, whois his childhood friend, then it would be reasonable to infer that hewas co-conspirator and assisting A-1 and A-2, as stated in hisconfessional statement.”

(Emphasis supplied)

33. In Ajay Aggarwal v. Union of India and Others[16], the roleplayed by various accused in successive stages of conspiracy and towhat extent liability for the acts committed by other members of the A

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Aconspiracy could be fastenedon the co-conspirators was considered bythis Court. The following observations are noteworthy:

“24. Thus, an agreement between two or more persons to do anillegal act or legal acts by illegal means is criminal conspiracy. Ifthe agreement is not an agreement to commit an offence, it doesnot amount to conspiracy unless it is followed up by an overt actdone by one or more persons in furtherance of the agreement.The offence is complete as soon as there is meeting of minds andunity of purpose between the conspirators to do that illegal act orlegal act by illegal means. Conspiracy itself is a substantive offenceand is distinct from the offence to commit which the conspiracy isentered into. It is undoubted that the general conspiracy is distinctfrom number of separate offences committed while executingthe offence of conspiracy. Each act constitutes separate offencepunishable, independent of the conspiracy. The law had developedseveral or different models or technics to broach the scope ofconspiracy. One such model is that of a chain, where each partyperforms even without knowledge of the other a role that aidssucceeding parties in accomplishing the criminal objectives of theconspiracy. An illustration of a single conspiracy, its parts boundtogether as links in a chain, is the process of procuring anddistributing narcotics or an illegal foreign drug for sale in different B

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parts of the globe. In such a case, smugglers, middlemen andretailers are privies to a single conspiracy to smuggle and distributenarcotics. The smugglers knew that the middlemen must sell toretailers; and the retailers knew that the middlemen must buy ofimporters of someone or another. Thus the conspirators at oneend of the chain knew that the unlawful business would not, andcould not, stop with their buyers; and those at the other end knewthat it had not begun with their settlers. The accused embarkedupon a venture in all parts of which each was a participant and anabettor in the sense that, the success of the part with which hewas immediately concerned, was dependent upon the success ofthe whole. It should also be considered as a spoke in the hub.There is a rim to bind all the spokes together in a single conspiracy.It is not material that a rim is found only when there is proof thateach spoke was aware of one another’s existence but that allpromoted in furtherance of some single illegal objective. Thetraditional concept of single agreement can also accommodate F

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the situation where a well-defined group conspires to commitmultiple crimes; so long as all these crimes are the objects of thesame agreement or continuous conspiratorial relationship, and theconspiracy continues to subsist though it was entered in the firstinstance. Take for instance that three persons hatched a conspiracyin country A to kill D in country B with explosive substance. Asfar as conspiracy is concerned, it is complete in country A. Oneof them pursuant thereto carried the explosive substance andhands it over to third one in the country B who implants at a placewhere D frequents and got exploded with remote control. D maybe killed or escape or may be diffused. The conspiracy continuestill it is executed in country B or frustrated. Therefore, it is acontinuing act and all are liable for conspiracy in country B thoughfirst two are liable to murder with aid of Section 120-B and thelast one is liable under Section 302 or 307 IPC, as the case maybe. Conspiracy may be considered to be a march under a bannerand a person may join or drop out in the march without the necessityof the change in the text on the banner. In the comity ofInternational Law, in these days, committing offences oninternational scale is a common feature. The offence of conspiracywould be a useful weapon and there would exist no conflict inmunicipal laws and the doctrine of autrefois convict or acquitwould extend to such offences. The comity of nations are duty-bound to apprehend the conspirators as soon as they set their feeton the country’s territorial limits and nip the offence in the bud.

25. A conspiracy thus, is a continuing offence and continues tosubsist and committed wherever one of the conspirators does anact or series of acts. So long as its performance continues, it is acontinuing offence till it is executed or rescinded or frustrated bychoice or necessity. A crime is complete as soon as the agreementis made, but it is not a thing of the moment. It does not end withthe making of the agreement. It will continue so long as there aretwo or more parties to it intending to carry into effect the design.Its continuance is a threat to the society against which it wasaimed at and would be dealt with as soon as that jurisdiction canproperly claim the power to do so. The conspiracy designed oragreed abroad will have the same effect as in India, when part ofthe acts, pursuant to the agreement are agreed to be finalised ordone, attempted or even frustrated and vice versa.”

(Emphasis supplied)

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A34. If the facts on record are considered, it emerges:- a)On 10.12.2003, when a meeting was organised at the houseof Firoz at Chintamani, it was attended by A-1, A-2, A-4and A-6 along with other members including some of theProsecution witnesses.

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b)The minutes of the meeting, as set out in paragraph 17 ofthe decision of the Trial Court, disclosed the intent and theobjective with which the materials, such as guns and bombswere to be procured or collected.

c)The signatures appended below the minutes were provedCby PW-67, Syed Asgar Imam, Hand Writing Expert.

d)The presence of A-1 in Chintamani on the day in questionwas completely established. His presence assumessignificance as he was not a local person.

e)The presence of A-1 on the day in question was advertedDto by some of the Prosecution witnesses. It is true thatapart from these pieces of evidence, nothing substantialcould be pointed against A-1 but his involvement in thescheme as one of the driving forces for the entire design,was quite evident.

Ef)The intent and objective disclosed from the minutes of themeeting was carried forward in the subsequent meetings.

g)The recoveries made from and at the instance of the otheraccused show that the very intent and object as discussedin the first meeting was being carried forward by theseFaccused with the acquisition and possession of the armsand ammunition.

h)The kind of material recovered from them by itself showsthe potential danger. Nothing was brought on record to showthe reason or the purpose for acquisition and possession ofsuch potentially dangerous material.

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These facts not only show that the basic elements of the conspiracystood well established but also proved the involvement of A-1. Going bythe law laid down by this Court, A-1 cannot escape the liability only onthe ground that no arms and ammunition or any inflammatory materialHor literature were actually recovered from him.

35. We must, at this stage, deal with three submissions advancedon behalf of A-1.

A) The minutes of the first meeting dated 10.12.2003 were writtenin Kannada language, at the end of which the signatures wereappended by all the concerned including A-1. As admitted by theInvestigating Officer, A-1 did not understand Kannada language.A serious objection was, therefore, raised about reliability of saiddocument to fasten the liability on A-1.

As discussed above, the presence of A-1 in ChintamaniTown on the relevant day stood well established. The fact that allthe concerned Accused got together on that day in the house ofPW-4 also stood established. The tenor of the discussion in themeeting and the fact that it was not found appropriate by some ofthe witnesses also found mention in the testimony of the witnesses.The handwriting expert found the signature to be that of A-1. Inthe premises, a mere submission that the signatures of the Accusedwere obtained subsequently, without any foundation, cannot beentertained. The signatures were definitely made in thecircumstances suggested by the Prosecution.

The submission is, therefore, rejected.

B) The next submission was with regard to the gap between thefirst meeting and the recovery of arms and explosives from someof the Accused. It was highlighted that there was about threeyears’ gap between these two circumstances and it was stressedthat there was nothing on record that during this interregnum, A-1 was in touch with any of the Accused or had any role in procuringthe arms and explosives, which were eventually recovered pursuantto disclosures made by the concerned Accused.

The conspiracy, the basic features of which were structuredin the first meeting of 2003, was a continuing one; which is evidentfrom the minutes of the subsequent meetings and translation ofthe intent into procurement of arms and explosives. It can neitherbe stated that the thread which was running through subsequentevents and circumstances was broken or that the link betweenthe first meeting and the subsequent stages was in any waysnapped.

The submission, therefore, calls for rejection.

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AC) It was further submitted that the case of the Prosecution thatA-1 had signed the minutes of the first meeting was not put tosaid Accused during his examination under Section 313 of theCode.

The record shows that questions about the report of PW-B67, the handwriting expert, at Exh.P-239 (page 194 of theconvenience compilation) and about the meeting at Chintamaniand that A-1 had gone to Chintamani (Page 197 of the conveniencecompilation) were put to the Accused in his examination underSection 313 of the Code. These questions definitely invited theattention of A-1 to the circumstances against him. The substantiveCevidence about the opinion of the handwriting expert which hadfound the signature of A-1 below the minutes of the first meetingand the circumstances about the meeting at Chintamani and thatA-1 had gone to Chintamani were thus put to the Accused. Theinstant submission, therefore, does not merit acceptance.

D36. The next question to be considered in light of the factsestablished on record is about the nature of offence committed by theAccused.

Relying on the decision of the Division Bench of the High Courtof Patna in Mir Hasan Khan vs. State[17], which was noted by a BenchEof two Judges of this Court in Navjot Sandhu[11], it was submitted onbehalf of the Accused that the material on record did not fulfil therequirement of what would constitute “waging of war” and consequentlythere could be no conviction uner Section 121-A of the IPC.

The relevant portion from the decision in Navjot Sandhu[11]is:- F

269. The decision of a Division Bench of the Patna High Court inMir Hasan Khan v. State[20] is illustrative of what acts do notconstitute waging of war. That was a case in which there was amutiny among certain sections of the police forces on account ofthe indignation aroused by the punishment given to one of theirGcolleagues. The conviction under Section 121 IPC was mainly 17 *AIR 1951 Patna 60 = 1951 Cr.L.J. 462.

* The decision in AIR 1951 Patna 60 = 1951 Cr.L.J.462 is reported as Mir HasanKhan v. State. The same decision is reported in 1951 Cr.LJ 462 as Ramanand v. State.In some of the subsequent judgments it is either referred to as Mir Hasan Khan v. StateHor as Ramanand v. State.

based on the fact that the accused were among those who tookpossession of the armoury and also took part in the resistancewhich was put up to the troops. The conviction was set aside andthe following pertinent observations were made by Shearer, J.:(AIR p. 63)

“The expression ‘waging war’ means and can, I think, onlymean ‘waging war in the manner usual in war’. In other words,in order to support a conviction on such a charge, it is notenough to show that the persons charged have contrived toobtain possession of an armoury and have, when called uponto surrender it, used the rifles and ammunition so obtainedagainst the King’s troops. It must also be shown that the seizureof the armoury was part and parcel of a planned operation andthat their intention in resisting the troops of the King was tooverwhelm and defeat these troops and then to go on and crushany further opposition with which they might meet until eitherthe leaders of the movement succeeded in obtaining possessionof the machinery of Government or until those in possession ofit yielded to the demands of their leaders.”

270. Support was drawn from the Digest of Criminal Law bySir James Stephens. In the Digest, one of the meanings given tothe expression to levy war is: “Attacking in the manner usual inwar (by sic) the King himself or his military forces, acting as suchby his orders, in the execution of their duty.” It was concluded “itis, I think, quite impossible to say that any of these appellantswaged war in the sense in which that expression, as it occurs inSection 121, Penal Code, was used”. “The appellants or some ofthem were in possession of the armoury at Gaya for several daysand it is perfectly clear that they never intended to use it as a basefor further operations.”

271. The next question is whether the daredevil and horrendousacts perpetrated by the slain terrorists pursuant to the conspiracy,amount to waging or attempting to wage war punishable underSection 121 IPC and whether the conspirators are liable to bepunished under Section 121 or 121-A or both.

272. Sections 121 and 121-A occur in the chapter “Offencesagainst the State”. The public peace is disturbed and the normalchannels of the Government are disrupted by such offences which A

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are aimed at subverting the authority of the Government orparalysing the constitutional machinery. The expression “war”preceded by the verb “wages” admits of many shades of meaningand defies a definition with exactitude though it appeared to be anunambiguous phraseology to the Indian Law Commissioners whoexamined the draft Penal Code in 1847. The Law Commissionersobserved:

“We conceive the term ‘wages war against the Government’naturally to import a person arraying himself in defiance of theGovernment in like manner and by like means as a foreignenemy would do, and it seems to us, we presume it did to theauthors of the Code that any definition of the term sounambiguous would be superfluous.”

273. The expression “Government of India” was substituted forthe expression “Queen” by the Adaptation of Laws Order of 1950.Section 121 now reads—

“121. Whoever wages war against the Government of India,or attempts to wage such war, or abets the waging of suchwar, shall be punished with death, or imprisonment for life, andshall also be liable to fine.”

274. The conspiracy to commit offences punishable under Section121 attracts punishment under Section 121-A and the maximumsentence could be imprisonment for life. The other limb of Section121-A is the conspiracy to overawe by means of criminal force orthe show of criminal force, the Central Government or any StateGovernment. The Explanation to Section 121-A clarifies that it isnot necessary that any act or illegal omission should take placepursuant to the conspiracy, in order to constitute the said offence.

275. War, terrorism and violent acts to overawe the establishedGovernment have many things in common. It is not too easy todistinguish them, but one thing is certain, the concept of warembedded in Section 121 is not to be understood in the internationallaw sense of inter-country war involving military operations byand between two or more hostile countries. Section 121 is notmeant to punish prisoners of war of a belligerent nation. Apartfrom the legislative history of the provision and the understandingof the expression by various High Courts during the pre-

independence days, the Illustration to Section 121 itself makes itclear that “war” contemplated by Section 121 is not conventionalwarfare between two nations. Organising or joining an insurrectionagainst the Government of India is also a form of war. “Insurrection”as defined in dictionaries and as commonly understood connotes aviolent uprising by a group directed against the Government inpower or the civil authorities. “Rebellion, revolution and civil war”are progressive stages in the development of civil unrest the mostrudimentary form of which is “insurrection” — vide Pan AmericanWorld Air Inc. v. Aetna Cas & Sur Co.[18] (FR 2d at p. 1017). Anact of insurgency is different from belligerency. It needs to beclarified that insurrection is only illustrative of the expression “war”and it is seen from the old English authorities referred to suprathat it would cover situations analogous to insurrection if theytend to undermine the authority of the Ruler or the Government.

276. It has been aptly said by Sir J.F. Stephen:

“Unlawful assemblies, riots, insurrections, rebellions, levyingof war are offences which run into each other and not capableof being marked off by perfectly definite boundaries. All ofthem have in common one feature, namely, that the normaltranquillity of a civilised society is, in each of the casesmentioned, disturbed either by actual force or at least by theshow and threat of it.”

277. To this list has to be added “terrorist acts” which are soconspicuous now-a-days. Though every terrorist act does notamount to waging war, certain terrorist acts can also constitutethe offence of waging war and there is no dichotomy betweenthe two. Terrorist acts can manifest themselves into acts of war.According to the learned Senior Counsel for the State, terroristacts prompted by an intention to strike at the sovereign authorityof the State/Government, tantamount to waging war irrespectiveof the number involved or the force employed.

278. It is seen that the first limb of Section 3(1) of POTA—

“with intent to threaten the unity, integrity, security or sovereigntyof India or to strike terror in the people or any section of the AB

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people does any act or thing by using bombs, dynamite or otherexplosive substances or inflammable substances or firearmsor other lethal weapons or poisons or noxious gases or otherchemicals or by any other substances (whether biological orotherwise) of a hazardous nature or by any other meanswhatsoever”

and the acts of waging war have overlapping features. However,the degree of animus or intent and the magnitude of the acts doneor attempted to be done would assume some relevance in orderto consider whether the terrorist acts give rise to a state of war.Yet, the demarcating line is by no means clear, much lesstransparent. It is often a difference in degree. The distinction getsthinner if a comparison is made of terrorist acts with the actsaimed at overawing the Government by means of criminal force.Conspiracy to commit the latter offence is covered by Section121-A.

279. It needs to be noticed that even in the international law sphere,there is no standard definition of war. Prof. L. Oppenheim in hiswell-known treatise on international law has given a definitionmarked by brevity and choice of words. The learned author said:“War is a contention between two or more States through theirarmed forces, for the purpose of overpowering each other andimposing such conditions of peace as the victor pleases.” YoramDinstein, an expert in international law field analysed the saiddefinition in the following words:

“There are four major constituent elements in Oppenheim’sview of war: (i) there has to be a contention between at leasttwo States, (ii) the use of the armed forces of those States isrequired, (iii) the purpose must be overpowering the enemy(as well as the imposition of peace on the victor’s terms); andit may be implied, particularly from the words ‘each other’,and (iv) both parties are expected to have symmetrical, althoughdiametrically opposed, goals.”

The learned author commented that Oppenheim was entirely rightin excluding civil wars from his definition. Mr Dinstein attemptedthe definition of “war” in the following terms:

“War is a hostile interaction between two or more States, eitherin a technical or in a material sense. War in the technical senseis a formal status produced by a declaration of war. War in thematerial sense is generated by actual use of armed force, whichmust be comprehensive on the part of at least one party to theconflict.”

280. In international law, we have the allied concepts of undeclaredwar, limited war, warlike situation — the nuances of which it isnot necessary to unravel.

281. There is no doubt that the offence of waging war was insertedin the Penal Code to accord with the concept of levying war inthe English Statutes of treason, the first of which dates back to1351 AD. It has been said so in almost all the Indian High Courts’decisions of the pre-independence days starting with Aung Hla v.Emperor[19]. In Nazir Khan case[10] this Court said so in specificterms in para 35 and extensively quoted from the passages in oldEnglish cases. Sir Michael Foster’s discourses on treason and thepassages from the decisions of the High Courts referred to thereinare also found in Ratanlal’s Law of Crimes. We should, therefore,understand the expression “wages war” occurring in Section 121broadly in the same sense in which it was understood in Englandwhile dealing with the corresponding expression in the TreasonStatute. However, we have to view the expression with the eyesof the people of free India and we must modulate and restrict thescope of observations too broadly made in the vintage decisionsso as to be in keeping with the democratic spirit and thecontemporary conditions associated with the working of ourdemocracy. The oft-repeated phrase “to attain the object of generalpublic nature” coined by Mansfield, L.C.J. and reiterated in variousEnglish and Indian decisions should not be unduly elongated in thepresent day context.

282. On the analysis of the various passages found in the casesand commentaries referred to above, what are the highlights wecome across? The most important is the intention or purpose behindthe defiance or rising against the Government. As said by Foster, A

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“The true criterion is quo animo did the parties assemble?” Inother words the intention and purpose of the warlike operationsdirected against the governmental machinery is an importantcriterion. If the object and purpose is to strike at the sovereignauthority of the Ruler or the Government to achieve a public andgeneral purpose in contradistinction to a private and a particularpurpose, that is an important indicia of waging war. Of course,the purpose must be intended to be achieved by use of force andarms and by defiance of government troops or armed personneldeployed to maintain public tranquillity. Though the modusoperandi of preparing for the offensive act against the Governmentmay be quite akin to the preparation in a regular war, it is oftensaid that the number of force, the manner in which they are arrayed,armed or equipped is immaterial. Even a limited number of personswho carry powerful explosives and missiles without regard to theirown safety can cause more devastating damage than a large groupof persons armed with ordinary weapons or firearms. Then, theother settled proposition is that there need not be the pomp andpageantry usually associated with war such as the offendersforming themselves in battle line and arraying in a warlike manner.Even a stealthy operation to overwhelm the armed or otherpersonnel deployed by the Government and to attain a commandingposition by which terms could be dictated to the Government mightvery well be an act of waging war.

283. While these are the acceptable criteria of waging war, wemust dissociate ourselves from the old English and Indianauthorities to the extent that they lay down a too general test ofattainment of an object of general public nature or a political object.We have already expressed reservations in adopting this test in itsliteral sense and construing it in a manner out of tune with thepresent day. The court must be cautious in adopting an approachwhich has the effect of bringing within the fold of Section 121 allacts of lawless and violent acts resulting in destruction of publicproperties, etc., and all acts of violent resistance to the armedpersonnel to achieve certain political objectives. The moment it isfound that the object sought to be attained is of a general publicnature or has a political hue, the offensive violent acts targetedagainst the armed forces and public officials should not be branded

as acts of waging war. The expression “waging war” should notbe stretched too far to hold that all the acts of disrupting publicorder and peace irrespective of their magnitude and repercussionscould be reckoned as acts of waging war against the Government.A balanced and realistic approach is called for in construing theexpression “waging war” irrespective of how it was viewed inthe long long past. An organised movement attended with violenceand attacks against the public officials and armed forces whileagitating for the repeal of an unpopular law or for preventingburdensome taxes were viewed as acts of treason in the form oflevying war. We doubt whether such construction is in tune withthe modern day perspectives and standards. Another aspect onwhich a clarification is called for is in regard to the observationmade in the old decisions that “neither the number engaged, northe force employed, nor the species of weapons with which theymay be armed” is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R. v. Hardie[20]in 1820 and the same statement finds its echo in many other Englishcases and in the case of Maganlal Radhakishan v. Emperor[21](AIR at p. 185). But, in our view, these are not irrelevant factors.They will certainly help the court in forming an idea whether theintention and design to wage war against the establishedGovernment exists or the offence falls short of it. For instance,the firepower or the devastating potential of the arms andexplosives that may be carried by a group of persons — may belarge or small, as in the present case, and the scale of violencethat follows may at times become useful indicators of the natureand dimension of the action resorted to. These, coupled with theother factors, may give rise to an inference of waging war.

284. The single most important factor which impels us to thinkthat this is a case of waging or attempting to wage war againstthe Government of India is the target of attack chosen by theslain terrorists and conspirators and the immediate objective soughtto be achieved thereby. The battlefront selected was theParliament House complex. The target chosen was Parliament 21 AIR 1946 Nag 173: 47 Cri LJ 851

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— a symbol of the sovereignty of the Indian republic. Comprisedof peoples’ representatives, this supreme law-making body steersthe destinies of a vast multitude of Indian people. It is a constitutionalrepository of sovereign power that collectively belongs to the peopleof India. The executive Government through the Council ofMinisters is accountable to Parliament. Parliamentary democracyis a basic and inalienable feature of the Constitution. EnteringParliament House with sophisticated arms and powerful explosiveswith a view to lay a siege to that building at a time when membersof Parliament, members of the Council of Ministers, high officialsand dignitaries of the Government of India gathered to transactparliamentary business, with the obvious idea of imperilling theirsafety and destabilising the functioning of the Government and inthat process, venturing to engage the security forces guardingParliament in armed combat, amounts by all reasonable perceptionsof law and common sense, to waging war against the Government.The whole of this well-planned operation is to strike directly atthe sovereign authority and integrity of our Republic of which theGovernment of India is an integral component. The attemptedattack on Parliament is an undoubted invasion of the sovereignattribute of the State including the Government of India which isits alter ego. An attack of this nature cannot be viewed on thesame footing as a terrorist attack on some public office buildingor an incident resulting in the breach of public tranquillity. Thedeceased terrorists were roused and impelled to action by a stronganti-Indian feeling as the writings on the fake Home Ministrysticker found on the car (Ext. PW-1/8) reveals. The huge andpowerful explosives, sophisticated arms and ammunition carriedby the slain terrorists who were to indulge in “fidayeen” operationswith a definite purpose in view, is a clear indicator of the gravedanger in store for the inmates of the House. The plannedoperations if executed, would have spelt disaster for the wholenation. A warlike situation lingering for days or weeks would haveprevailed. Such offensive acts of unimaginable description anddevastation would have posed a challenge to the Government andthe democratic institutions for the protection of which theGovernment of the day stands. To underestimate it as a meredesperate act of a small group of persons who were sure to meetdeath, is to ignore the obvious realities and to stultify the wider

connotation of the “expression of war” chosen by the drafters ofIPC. The target, the obvious objective which has political andpublic dimensions and the modus operandi adopted by the hardcore “fidayeens” are all demonstrative of the intention of launchinga war against the Government of India. We need not assess thechances of success of such an operation to judge the nature ofcriminality. We are not impressed by the argument that the fiveslain terrorists ought not to be “exalted” to the status of warriorsparticipating in a war. Nor do we endorse the argument of thelearned Senior Counsel Mr Sushil Kumar that in order to give riseto the offence of waging war, the avowed purpose and design ofthe offence should be to substitute another authority for theGovernment of India. According to the learned counsel, thedeprivation of sovereignty should be the pervading aim of theaccused in order to bring the offence under Section 121 and thatis lacking in the present case. We find no force in this contention.The undoubted objective and determination of the deceasedterrorists was to impinge on the sovereign authority of the nationand its Government. Even if the conspired purpose and objectivefalls short of installing some other authority or entity in the placeof an established Government, it does not in our view detractfrom the offence of waging war. There is no warrant for suchtruncated interpretation.

37. Before we deal with the submission, we may extract therelevant provisions. Sections 121 and 121-A of the IPC are as under:- “121. Waging, or attempting to wage war, or abetting wagingof war, against the Government of India.—Whoever, wageswar against the Government of India, or attempts to wage suchwar, or abets the waging of such war, shall be punished with death,orimprisonment for life and shall also be liable to fine.

Illustration: A joins an insurrection against the Government ofIndia. A has committed the offence defined in this section.

121A. Conspiracy to commit offences punishable by section121.—Whoever within or without India conspires to commit anyof the offences punishable by section 121,or conspires to overawe,by means of criminal force or the show of criminal force, the AB

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ACentral Government or anyState Government , shall be punishedwith imprisonment for life, or with imprisonment of eitherdescription which may extend to ten years, and shall also be liableto fine.

Explanation.—To constitute a conspiracy under this section, it isBnot necessary that any act or illegal omission shall take place inpursuance thereof.”

38. What constitutes an offence under Section 121 of the IPC isthe waging of war or attempt to wage war or abetting of waging of suchwar against the Government of India. The expression “waging of war”Cwas considered by this Court in Navjot Sandhu[11]. Paragraph 34 of thedecision of this Court in Nazir Khan[10] was also to the same effect. Saidparagraph reads as under:- “34. The expression “waging war” means and can only meanwaging war in the manner usual in war. In other words, in orderDto support a conviction on such a charge it is not enough to showthat the persons charged have contrived to obtain possession ofan armoury and have, when called upon to surrender it, used therifles and ammunition so obtained against the government troops.It must also be shown that the seizure of the armoury was partand parcel of a planned operation and that their intention in resistingEthe troops of the Government was to overwhelm and defeat thesetroops and then to go on and crush any further opposition withwhich they might meet until either the leaders of the movementsucceeded in obtaining the possession of the machinery ofgovernment or until those in possession of it yielded to the demandsof their leaders.”F

39. Section 121-A of the IPC, however, deals with conspiracy tocommit offences punishable under Section 121 of the IPC as well asconspiracy to overawe by force, the Central Government or any StateGovernment. In terms of its application, the width of Section 121-A isGthus not confined to conspiracy to commit offences punishable underSection 121 of the IPC alone.

In Mir Hasan Khan v. State (or Ramanand v. State)[17], theDivision Bench of the Patna High Court brought out the distinctionbetween both the limbs of conspiracies dealt with in Section 121A, asunder:H

“The marginal note to section 121A is “conspiracy to commitoffences punishable by section 121”. This was a strictly accuratedescription of the section which it was proposed to enact in theBill originally introduced in the Legislative Council. It is quite clearthat the conspiracies aimed at in the Bill were conspiracies eitherto wage war against the King in the manner in which it is usual towage war or conspiracies to raise an insurrection with the objectof subverting the constitution. The section, however, as finallyenacted brought within its scope other conspiracies also and themarginal note is not a strictly accurate description of what iscontained in it. The words “conspires to overawe by means ofcriminal force or the show of criminal force the CentralGovernment or any Provincial Government” clearly embrace notmerely a conspiracy to raise a general insurrection, but also aconspiracy to overawe the Central Government or any ProvincialGovernment by the organization of a serious riot or a large andtumultuous unlawful assembly. Possibly, in modifying the sectionas it stood in the Bill, the Legislative Council had in mind the caseof Lord George Gordon[22]. Lord George Gordon put himself at thehead of a large mob which proceeded to the Houses of Parliamentin order to protest against the enactment of certain legislation.After having made it protest, the mob dispersed, but certainmembers of it proceeded to perpetrate outrages in different partsof the city of London. Lord George Gordon was tried on a chargeof high treason, and was acquitted the reason apparently beingthat, while he had intended to make a demonstration outside theHouse of Parliament, he had not been a party to the disorderswhich resulted from it. Section 121A occurs in a chapter of thePenal Code which is headed “Offences against the State” whereasthe offence of conspiracy is contained in the preceding chapter,Chapter VA which is headed “Criminal Conspiracy”. Thelegislature in enacting section 121A clearly had in mind the EnglishTreason Felony Act of 1848 and I am very much inclined to thinkthat, in enacting it, it did not aim at conspiracies other thanconspiracies which had a political object, that is, conspiracies tooverthrow the existing constitution or conspiracies to prevent theenactment of legislation which was considered to be obnoxious or AB

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Ato compel the resignation of a member or member of theGovernment who had become unpopular. As the section stands,however, I am not prepared to say that in certain circumstancespersons who organize a strike among police men or certain otherpublic or municipal employees might not render themselves liableto prosecution under it. Clearly, however, persons do not commitBthis crime unless it was part and parcel of their plans to overawethe Central or the Provincial Government by criminal force orshow of criminal force. The word “overawe” does not appearanywhere else in the Penal Code except in this section and inanother section in the same chapter (section 124). In the TreasonCFelony Act,1848 which the authors of section 121A appear tohave had in mind, the words used are:

“intimidate or overawe both Houses or either House ofParliament”

Dand the words there must be read in conjunction with the wordsimmediately preceding them, which are “in order by force or constraint to compel His Majesty tochange his measures or counsels”.

The word “overawe” clearly imports more than the creation ofEapprehension or alarm or even perhaps fear. It appears to me toconnote the creation of a situation in which the members of theCentral or the Provincial Government feel themselves compelledto choose between wielding to force or exposing themselves ormembers of the public to a very serious danger. It is notFnecessary that the danger should be a danger of assassinationor of bodily injury to themselves. The danger might well be adanger to public property or to the safety of members of thegeneral public.

40. As the text of the relevant Section shows, persons who planGto overawe the Central or the State Government by criminal force orshow of criminal force would be guilty of offence of entering intoconspiracy in terms of Section 121A of the IPC. The dictionary meaningof the expression “overawe”is to subdue or inhibit with a sense of awe[23].

H23 The Concise Oxford English Dictionary.

The expression “overawe” would thus imply creation of apprehensionor situation of alarm and as rightly held by the Division Bench, it wouldnot be necessary that the danger should be one of assassination of or ofbodily injury to the members of the machinery or apparatus of theGovernment but the danger might as well be to public property or to thesafety of members of the general public.

41. The conspiracy in the instant case, the intent of which wasclear from the minutes of the meetings and the consequential acquisitionof arms and explosives to effectuate the purpose and intent of saidconspiracy, would thus come well within the latter part of the conspiracydealt with in Section 121A of the IPC. As the explanation to Section121A of the IPC discloses, for an offence of conspiracy, it would not benecessary that any act or illegal omission must take place in pursuancethereof. Thus, even though no untoward incident had actually happenedas a result of the conspiracy, the matter would still come within the fourcorners of Section 121A of the IPC.

The conviction recorded against the accused under Section 121Aof the IPC does not therefore call for any interference.

42. We may now turn to the submission based on Section 120-Bread with Section 116 of the IPC. Section 120-B of the IPC would applyonly when “no express provision is made in this regard for the punishmentof such a conspiracy”. Since an express provision for particular kind ofconspiracy is dealt with specifically in Section 121A of the IPC, theprovision contained in Section 120-B of the IPC would have no application.The submission, therefore, merits rejection.

43. The last submission was that there was no occasion for theHigh Court to enhance the quantum of punishment from seven yearswhich was awarded by the Trial Court to that of life imprisonment forthe offence punishable under Section 121-A of the IPC.

We have given serious consideration to this submission. Theconspiracy as disclosed in the instant matter, if it had been carried out,would have resulted in great damage and prejudice to the life and well-being of the members of the general public as well as loss to the publicproperty. Such conspiracies to cause danger to public property or to thesafety of the members of the general public ought to be dealt with strictly.Considering the acquisition of substantial quantity of arms and explosives A

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Aas well as the intent disclosed by diary Exh. P-92, and other materials onrecord, the High Court was right in enhancing the sentence afteraccepting the appeal preferred by the State in that behalf.

44. In the circumstances, we do not find any merit in the appealspreferred by the Accused and as such all the appeals are dismissed.B

Nidhi Jain

(Assisted by : Tamana, LCRA)

Appeals dismissed.

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