February 09, 2013 17:40 IST
Unless we learn to forget our differences and stand together as Indians first, earnestly believing that the cause of the Motherland is bigger than the interests of our groups and parties, the terrorist network cannot be rooted out, says Tarun Vijay.
Afzal Guru was a dreaded terrorist who was part of a meticulously planned attack on India's parliamentarians by the Jaish-e-Mohammed and the Lashkar-e-Tayiba [ Images ].
The five jihadis attacked the greatest symbol of India's democratic life. It was termed as a 'war on the Indian State' by the Government of India.
The braveheart security personnel foiled the attack by the cowards and it is time we pay tribute to them with a solemn pledge to defend the nation with characteristic Indian solidarity and might.
It is unfortunate that while the entire nation, rising above religious and party lines, has welcomed the long-awaited execution, Congress leader Mani Shankar Aiyar [ Images ] expressed 'sadness'.
The All India Muslim Majlis-e-Mushawarat -- an umbrella body of several Muslim organisations -- condemned Afzal Guru's hanging. The organisation's President Dr Zafarul-Islam Khan told Rediff.com that Guru's execution was 'unjustified and he did not get a fair trial'.
Anything surprising here?
The attack on December 13, 2001, shook the nation. It was a black day. The Supreme Court judgment (of August 4, 2005) gives a graphic description of the ferocity and destructive intentions of the terrorists: There is practically no dispute in regard to the details of actual incident, the identification of the deceased terrorists and the recoveries and other investigations made at the spot. Five heavily-armed persons entered the Parliament House complex in a white Ambassador car. The said five persons were heavily armed with automatic assault rifles, pistols, hand and rifle grenades, electronic detonators, spare ammunition, explosives in the form of improvised explosive devices, tiffin bombs and a sophisticated bomb in a container in the boot of the car made with an enormous quantity of ammonium nitrate. The high court observed: 'The fire power was awesome enough to engage a battalion and had the attack succeeded, the entire building with all inside would have perished.' It was a fortuitous circumstance that the Vice-President's carcade, which was awaiting departure from Gate 11 was blocking the circular road outside the Parliament building, with the result the deceased terrorists were unable to get free and easy access to the Parliament House building. The attack was foiled due to the immediate reaction of the security personnel present at the spot and complex. There was a fierce gun-battle lasting for nearly 30 minutes.
Security agencies investigated and found Afzal Guru, Shaukat Hussain and S A R Geelani and Navjot Sandhu aka Afsan as the main plotters and accused them in the chargesheets filed in the designated special court presided by Justice S N Dhingra. The trial concluded in about six months and Afzal Guru, Shaukat Hussain and Geelani were convicted for offences under Sections 121, 121A, 122, Section 120B read with Sections 302 & 307 read with Section 120B IPC, sub-Sections (2), (3) & (5) of Section 3 and Section 4(b) of Prevention of Terrorism [ Images ] Act and Sections 3 & 4 of the Explosive Substances Act.
Navjot Sandhu aka Afsan was acquitted of all the charges except the one under Section 123 of the Indian Penal Code for which she was convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine. Death sentences were imposed on the other three accused for offences under Section 302 read with Section 120B IPC and Section 3(2) of POTA.
A trial court sentenced Shaukat Hussain, a cousin of Afzal Guru, along with Afzal and Geelani, a Kashmiri lecturer working in Delhi [ Images ], to death on December 16, 2002.
While India was said to be almost on the verge of war with Pakistan over this issue, there were movements by the so-called secular elite to pressurise the government to free Afzal Guru and Geelani. The death sentences to these accused were opposed by the 'seculars' on various grounds.
The media was reporting on the involvement of the key conspirators in this manner: 'The attack on Parliament on December 13 was a joint operation of the Jaish-e-Mohammed (JeM) and Lashkar-e-Tayiba (LeT) terrorist groups in which a Delhi University lecturer, Syed A R Geelani, was one of the key facilitators in Delhi, Police Commissioner Ajai Raj Sharma said on Sunday.' (The Times of India [ Images ], December 17, 2001) and 'Varsity don guided fidayeen': 'During interrogation Geelani disclosed that he was in the know of the conspiracy since the day the 'fidayeen' attack was planned.'
According to The Hindu , a group called the Delhi University Teachers in Defence of S A R Geelani issued a statement bearing the signatures of 84 teachers from DU, JNU, Jamia Milia etc.
The statement said: 'Institute a high-level judicial inquiry into the illegal practices of the Special Branch of the Delhi police, including allegations of corruption, violations of fair trial standards and allegations of false encounters. Institute a judicial [inquiry] into the allegations made by Mohammad Afzal and his wife about the torture and extortion by the STF officers. Punish the guilty policemen who framed Mr Geelani and Afsan Guru.'
Author Arundhati Roy [ Images ] wrote a long essay in a popular news magazine defending Afzal Guru and said: 'In Kashmir [Images ], public opinion is equally overwhelming. Huge angry protests make it increasingly obvious that if Afzal is hanged, the consequences will be political. Some protest what they see as a miscarriage of justice, but even as they protest, they do not expect justice from Indian courts. They have lived through too much brutality to believe in courts, affidavits and justice any more.' 'Others would like to see Mohammed Afzal march to the gallows like Maqbool Butt, a proud martyr to the cause of Kashmir's freedom struggle,' Roy wrote. 'On the whole, most Kashmiris see Mohammed Afzal as a sort of prisoner-of-war being tried in the courts of an occupying power (which it undoubtedly is).'
Meanwhile Afzal Guru's family submitted a mercy petition to President A P J Abdul Kalam [ Images ] and in reaction, the family of Kamlesh Kumari, a Central Reserve Police Force jawan who attained martyrdom in the attack, warned that they would return the Ashok Chakra if the President accepted the petition.
On December 13, 2006, the families of the deceased returned the medals to the government to protest the delay in hanging Afzal Guru and the accusations of the secular elitist circles about the security forces for 'falsely implicating' the accused.
Later, the Delhi high court upheld the death sentence of Shaukat and Afzal, and acquitted Geelani in October 2003, stating that the proof based on phone-tapping was insufficient for his conviction.
In 2005, the Supreme Court overturned the death sentence of Shaukat and dismissed 12 of the charges slapped on him, reducing his jail term to 10 years. The apex court also upheld the death sentence on Afzal Guru and Geelani's acquittal.
On December 30, 2010, Shaukat Hussain Guru, sentenced to 10 years of rigorous imprisonment, was released nine months prior to his official date of release due to his 'good conduct.'
The Supreme Court judgment, confirming the death sentence on Afzal Guru and acquitting Geelani, is really important and I am quoting some parts of it for the benefit of readers. Delivered on August 4, 2005, by a bench consisting of Justice P Venkatarama Reddi and Justice P P Naolekar, the document is too significant.
The phone calls
Inspector Mohan Chand Sharma of special cell/027PW66 undertook the investigations pertaining to the mobile phones. Phone call details were obtained and analysed from the respective cellular mobile service providers.
Analysis of the call records indicated that the number 9811489429 which was found on the ID cards, (subsequently discovered to be that of the accused Afzal) appeared to be integrally connected with the deceased terrorists and this number had been in frequent contact with the cell phone No 9810693456 (recovered from the deceased terrorist Mohammad at Gate No 1) continuously from 28.11.2001 till the date of the attack.
It was further revealed that this number of Afzal, namely, 9811489429, was in contact with the above cell phone of Mohammad, just before the incident, at 10.40 am, 11.04 am and 11.22 am. It was also ascertained that the said number of Afzal was activated only on 6.11.2001 close to the attack.
Further analysis of the cell phone call records showed that another cell phone number 9811573506 (subsequently discovered to be that of Shaukat and recovered from the 4th accused Afsan Guru) appeared to be in close contact with Afzal's number namely 9811489429 and these numbers were in contact with each other a few minutes before the attack on Parliament commenced. It was also found that the said number of Shaukat was activated only on 7.12.2001 just a week prior to the attack.
An analysis of the call records relating to Shaukat's mobile phone further revealed that soon after the attack, at 12.12 hours, there was a call from Shaukat's number to the cell phone number 9810081228 (subsequently discovered to be that of S A R Gilani) and there was a call from Gilani's number to Shaukat's number 10 minutes later. Moreover, it was ascertained that Gilani's number was in constant touch with the other two accused, namely Shaukat and Afzal. It transpired that Afzal's cell phone bearing number 9811489429 was reactivated on 7.12.2001 and the first call was from Gilani's number.
With the recoveries of the cell phones and SIM cards and on an analysis of the details of phone numbers noted on the slips of papers in the light of the call records, the investigation narrowed down to three numbers, namely, 9811489429, 9811573506 and 9810081228 which belonged to Afzal, Shaukat and Gilani respectively. It was also found that the first two numbers were cash cards and hence the details regarding their ownership were not available.
However, as regards 9810081228, the information was received from the service provider (Airtel) that S A R Gilani with the residential address 535, Dr Mukherjee Nagar, Delhi was the regular subscriber.'
At any rate, there is room for doubt. No doubt, as per the deposition of DW 6, the brother of Gilani and the version of Gilani in his statement under Section 313, the relevant query and answer was in the context of quarrel between him and his wife with regard to the Kashmir trip during Eid appears to be false in view of the tenor of the conversation. At the same time, in view of the discrepant versions, on an overall consideration, we are not inclined to disturb the finding of the high court.
However, we would like to advert to one disturbing feature. Gilani rejoiced and laughed heartily when the Delhi event was raised in the conversation. It raises a serious suspicion that he was approving of the happenings in Delhi. Moreover, he came forward with a false version that the remark was made in the context of domestic quarrel. We can only say that his conduct, which is not only evident from this fact, but also the untruthful pleas raised by him about his contacts with Shaukat and Afzal, give rise to serious suspicion at least about his knowledge of the incident and his tacit approval of it. At the same time, suspicion -- however strong -- cannot take the place of legal proof. Though his conduct was not above board, the Court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt. In view of the foregoing discussion we affirm the verdict of the high court and we uphold the acquittal of S A R Gilani of all charges.
On Afsan Guru
The trial court convicted her of the offence under Section 123 IPC imputing her the knowledge of conspiracy and concealing the evidence of design to wage war by reason of her illegal omission to inform the police. The high court acquitted her of the charge. We are of the view that the high court is fully justified in doing so. The prosecution case against this accused, who is the wife of Shaukat Hussain, is weak.
Every step taken towards eradication of terrorism and punishing the masterminds should be welcomed, but at the same time a solidarity among all Indians, irrespective of caste, religion and parochial affinities, should be forged to eliminate this menace which is eating away the vitals of the nation and seriously affecting the social fabric.
Unless we learn to forget our differences and stand together as Indians first, earnestly believing that the cause of the Motherland is bigger than the interests of our groups and parties, the terrorist network cannot be rooted out.
This is exactly the time when we must move in this direction and there is a role for all non-partisan leaders to come forward and be gamechangers for the nation.
Supreme Court Judgment
Appeal (crl.) 373-375 of 2004
STATE (N.C.T. OF DELHI)
NAVJOT SANDHU@ AFSAN GURU
DATE OF JUDGMENT: 04/08/2005
P. VENKATARAMA REDDI & P.P. NAOLEKAR
CRIMINAL APPEAL Nos. 376-378 OF 2004
STATE (N.C.T. OF DELHI) \005 APPELLANT
SYED ABDUL REHMAN GILANI \005 RESPONDENT
CRIMINAL APPEAL Nos. 379-380 OF 2004
SHAUKAT HUSSAIN GURU \005 APPELLANT
STATE (N.C.T. OF DELHI) \005 RESPONDENT
CRIMINAL APPEAL NO. 381 OF 2004
MOHD. AFZAL \005 APPELLANT
STATE (N.C.T. OF DELHI)
P. VENKATARAMA REDDI, J.
Circumstances against Afzal
We shall now consider the circumstantial evidence against Afzal
independent of and irrespective of the confession.
The first circumstance is that Afzal knew who the deceased terrorists
were. He identified the dead bodies of the deceased terrorists. PW76
(Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady
Harding Medical College and he identified the five terrorists and gave their
names. Accordingly, PW76 prepared an identification memo\027Ext.PW76/1 which was signed by Afzal. In the postmortem reports pertaining to each of the deceased terrorists, Afzal signed against the column ’identified by’. On this aspect, the evidence of PW76 remained un-shattered. In the course of his examination under Section 313, Afzal merely stated that he was forced to identify by the police. There was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo. It may be recalled that all the accused, through their counsel, agreed for admission of the postmortem reports without formal proof. Identification by a person in custody of another does not amount to making a statement falling within the embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of Evidence Act as a piece of evidence relating to conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal(http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 107) Procedure Code is the statement made to a Police Officer in the
course of investigation and not the evidence relating to the conduct
of an accused person (not amounting to a statement) when
confronted or questioned by a Police Officer during the course of an
investigation. For example, the evidence of the circumstance,
simpliciter, that an accused person led a police officer and pointed
out the place where stolen articles or weapons which might have
been used in the commission of the offence were found hidden,
would be admissible as conduct, under Section 8 of the Evidence
Act, irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct falls within
the purview of Section 27 of the EvidenceAct (vide Himachal
Pradesh Administration Vs. Om Prakash [AIR 1972 SC
975]). The second circumstance is the frequent telephonic contacts which Afjal had established with Mohammed. Even minutes before the attack, as many as three calls were made by Mohammed to Afzal from his phone No. 9810693456 which was operated with the instrument having IMEI No. 35066834011740(2) that was recovered from Mohammed’s body, as seen from Ext. PW 35/2. The SIM Card relating thereto was also found in Mohammed’s purse. Not only that, there is clear evidence to the effect that the mobile instruments were being freely exchanged between Afzal and Mohammed and other terrorists. This is the third circumstance.
Before going into the details on these aspects, it may be noted that the
handset found in the truck in which Afzal was travelling and which he pointed out to the police was having IMEI No. 350102209452430. It was a mobile phone instrument of Nokia make and it was being used for the operation of phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was furnished by PW61 and PW62. Its IMEI number and the cell phone number with which it was being operated is established by the evidence of investigating officer coupled with the call records filed by the witnesses. It is also clear from the call record that it was the last instrument on which the said number \00589429 had been operated as late as 13.12.2001.
The fact that the instrument bearing number \005\005\00552430 was being
carried by Afzal in the truck would give rise to a reasonable inference that the cell-phone number with which the instrument was being operated was that of Afzal and the said phone number was under his use. The appellant, Afzal, apart from denying the recovery at Srinagar\027which denial cannot be said to be true, did not account for the custody of the phone. The said phone number cannot be related to Shaukat who was also travelling with Afzal because Shaukat was having his own phones which were seized from his residence on 15th December. In the circumstances, even a presumption under Section 114 can be drawn that the number 9811489429 was at all material times being used by the accused, Afzal.
The facts that the SIM card was not found in the mobile phone and that
the IMEI number of the instrument was not noted by PW 61 cannot be the
grounds to disconnect Afzal from the custody of the said phone. The IMEI
number found on the phone was sent to trace the number of the cell phone.
One more point has to be clarified. In the seizure memo (Ext. 61/4), the
IMEI number of Nokia phone found in the truck was noted as \005\00552432. That means the last digit ’2’ varies from the call records wherein it was noted as \005\00552430. Thus, there is a seeming discrepancy as far as the last digit is
concerned. This discrepancy stands explained by the evidence of PW 78 \026 a computer Engineer working as Manager, Siemens. He stated, while giving various details of the 15 digits, that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as ’0’. The witness was not cross-examined.
This mobile number ..89429 was also used in the instrument No. IMEI
449269219639010 recovered from the deceased terrorist Raja and was then
used in the handset having number 350102209452430(2) i.e. the instrument
recovered from the truck at Srinagar, as pointed out by the High Court at
paragraph 325 of the judgment. The instrument recovered from Raja was the
one used by Afzal i.e. on phone No.\00589429 between 6.11.2001 and
23.11.2001. The mobile instrument recovered from Rana (IMEI
(http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 107)
449269405808650) (Cell phone No.9810302438) was used by Mohammed who in turn was using the phone of Afzal also. This was the phone that was
purchased by Afzal from PW49\027Kamal Kishore.
Now, we shall proceed to give further details of the phone calls and the
instruments used, more or less in a chronological order insofar as they throw
light on the close association of Afzal with the deceased terrorists. The SIM
Cards related to the mobile phones bearing Nos. 9810693456 and 9810565284 were recovered from the purse of the deceased terrorist Mohammed. The first call from the first number was from Mohammed to a Delhi landline number on 21.11.2001. The first call to the second number was from Bombay on 24.11.2001. It shows that these two phones were activated by Mohammed in the third week of November, 2001 when he was in Delhi. It is established from the call records that the second call from the Bombay number to Mohammed was received when the said mobile number (9810565284) was being used in the handset having IMEI No. 449269219639010(2). This is the same handset which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3).
Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset which was being used by Afzal which reveals the nexus between both.
Evidence of the computer experts PWs 72 & 73 together with their
reports (Ext.PW73/1 & 73/2) would reveal that a file named Radhika.bmp was created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the name of Sanjay Sharma is found and it contains the address No.10, Christian Colony, where Mohammed was staying and the phone No. 9811489429 (belonging to Afzal). The other I.Cards recovered from the body of the deceased terrorist which were fake ones, were also prepared from the same laptop as established by the testimony of PW72 and PW59. Thus, together with the activation of phones, simultaneous activity on the laptop to create bogus I.Cards was going on at the same time i.e. 21.11.2001 onwards.
On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed
to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001.
This gap is explained by the prosecution by referring to the confessional
statement of Afzal wherein he said that towards the end of November, he
(Afzal) went to Kashmir and came back to Delhi along with two other terrorists in the first week of December. But as the confessional statement is not taken into account, we cannot take note of that explanation. On 5th December, 2001, Mohammed called two Dubai numbers from his mobile phone No. 9810565284 and the call record\027Ext.PW35/4 would show that Mohammed made those calls to Dubai by using the same handset which was being used by Afzal for his number 9811489429. PW49, who identified Afzal in the Court, testified to the
fact that Afzal had purchased Motorola mobile phone of model 180 from his
shop on 4.12.2001 which tallies with the description of the phone bearing the IMEI number referred to above.
The next point to be noted is that the said phone instrument bearing
IMEI No. \005\00539010 was finally recovered from the deceased terrorist Raja as per the seizure memo (Ext.PW2/2). A perusal of the call record discloses that the said instrument was being used by the accused Afzal (with his number ...89429) till the noon of 12.12.2001. It shows that such interchange of phones would not have been possible, but for the meeting of the Afzal with the slain terrorists on 12th December. There were calls to the mobile number 9810693456 the SIM Card of which was recovered from the body of Mohammed vide Ext.PW4/8 and which was being operated from the instrument IMEI No. 449269405808650 (Ext.PW35/5). On 7th & 8th December, Afzal called Mohammed seven times from his phone No. 9811489429 to Mohammed’s No. 9810693456 and the said mobile of Mohammed was being used in IMEI No. \005808650 (Ext.PW35/5). Thus Mohammed used the same Motorola phone (Ext.P28) which was finally recovered from the deceased Raja vide seizure memo (Ext.PW2/2) on the SIM card (described as ’Magic Card’) for the No.
9810693456 and the said card was recovered from Mohammed vide
Ext.PW4/8. As per the testimony of PW49, the said Ext.P28 was purchased by Afzal. It is pertinent to note that the said instrument was never used by Afzal though it was purchased by him but it was being used by Mohammed and it ultimately reached Raja.
The deposition of PW44 discloses that Afzal, who was identified by him in
the Court, came to his shop on 7th or 8th December and purchased a mobile
phone of J70 model of Sony make which he identified as Ext.P-37 seized under
(http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 107)
Ext.PW4/14 from the body of Mohammed. Its IMEI number was
35066834011747/2 and its cell-phone number was found to be 9810511085.
This fact would only lead to the inference that contemporaneous to the crucial incident of 13th December, Afzal met Mohammed and supplied the handset of the mobile phone. That apart, we find the exchange of calls between them.
From the call records in Parts VI & IX, it is evident that Afzal was in touch with Mohammed over phone on seven occasions on 7th and 8th December and they
were using the two phones with the Cell numbers referred to supra, though,
two or three calls of them were of very short duration. It may also be noticed
that a satellite phone contacted Afzal for a short-while on his number
9811489429 and the same satellite phone contacted Mohammed on his phone No. 9810693456 on 10th December for five minutes. On 12th December, Mohammed contacted Raja for 83 seconds and thereafter a satellite phonecontacted Mohammed for 11 minutes and the same satellite phone contacted Raja twice for about 3= minutes. This is borne out by call records at volume VI. The phone number of Raja was 9810510816 as discovered from the phone
instrument recovered from his body.
Then we come to the crucial day i.e. 13.12.2001. Mohammed called
Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the
Parliament. This is borne out by the call records of 9810693456 and
9811489429 (phones traceable to Mohammed and Afzal, respectively). At
about the same time, there was exchange of calls between Afzal and Shaukat
on their phone numbers .\005.89429 and \005\005.73506. The call records at Part IX, Page 20 pertaining to 9811489429\027the user of which can be traced to Afzal and the instruments recovered would reveal that the SIM Card pertaining to the said mobile number (\00589429) was activated on 6th November and was used on the handset bearing IMEI No. 449269219639010 recovered from the deceased terrorist Raja as per Ex. PW2/2. The call record would further show
that its user was discontinued on 29th November till 7th December, when,
again, it was put to use on 12th December. The last call was at 12 noon.
Thereafter, the SIM Card pertaining to this number (i.e. \005.89429) was used in the handset No. 350102209452430, which is the instrument (Ext.P84) recovered from the truck at Srinagar, on being pointed out by Afzal. The picture that emerges is this: The fact that an instrument used by Afzal (with the phone number 9811489429) till 12.12.2001 was recovered from one of the deceased terrorists on the date of incident, reveals that Afzal would have necessarily met the deceased terrorist between the afternoon of 12th December and the morning of 13th December.
One point urged by Shri Sushil Kumar is that although the sanction order
authorized the interception of Phone No. \005..06722, there is no evidence
regarding the details of investigation of the calls made or received from that
number. No question was put to the witnesses on this point. It is quite
probable that the investigator would have entertained some suspicion in this
regard and would have, by way of caution sought permission to intercept. That does not cast a cloud on the prosecution case built up on the basis of the call records pertaining to the phones used by the accused. We can draw no adverse inference from the fact that the details of aforementioned number was not given.
(vi) Hideouts and recoveries
The other circumstances which prominently shed light on the
involvement of the accused Afzal relate to the discovery of the abodes or
hideouts of the deceased terrorists and the recovery of various incriminating
articles therefrom as well as the identification of certain shops from where the appellant and one or the other deceased terrorist purchased various items used for preparation of explosives etc. These are spoken to by PW76\027Inspector Gill, the landlords of the concerned premises and the shopkeepers. The informations furnished to the Investigating Officers leading to the discovery of facts and the conduct of the accused in pointing out the places where the terrorists stayed are admissible either under Section 27 or Section 8 of the Evidence Act and they supplement the evidence furnished by the I.Os., the landlords and the shopkeepers.