CHANDRA PRAKASH versus STATE OF RAJASTHAN

[2014] 6 S.C.R. 819

CHANDRA PRAKASH V. STATE OF RAJASTHAN (Criminal Appeal No. 1155 of 2014)

MAY 9, 2014

A

B

[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

c

Penal Code, 1860: s. 307, 427 rlw s. 1208; Prevention of Damage to Public Property Act, 1984: s.3; Explosive Substances Act, 1908: s. 3; Explosive Act, 1884: s. 98 - Conviction under - Evidence of approver that all accused used to meet at one place and bring explosive substance and the approver himself used to carry the boxes of substance along with other accused - Approver implicated himself in the crime and did not make any effort to give any exculpatory D statement - On the basis of evidence of approver, accused was arrested and search conducted - Recovery of explosive substance was made at the instance of accused - Deposition of expert witness to the effect that ammonium nitrate seized from appellant's godown was in such a condition that it could E be used to prepare bomb - Recovery of fuse wire, live bomb, ammonium nitrate and other items made at the instance of appellants - Chain of events and participation of the accused persons which had the genesis in the discussion and meetings, the purchase of ammonium nitrate and other items, F carrying of the boxes and all other·factors showed that there was conspiracy - Charges were proved beyond reasonable doubt - No interference called for with the order of conviction.

:

Test Identification Parade: Object of - Delay in conducting TIP - Held: The purpose of TIP is to provide G corroborative evidence and is more confirmatory in nature -- Delay per se cannot be fatal to validity of holding an identification parade in all cases without exception.

819

H

820

SUPREME COURT REPORTS

[2014] 6 S.C.R.

A

Evidence: Testimony of accomplice/approver -

Evidentiary value of - Held: Testimony of accomplice/ approver can be relied upon if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime - While looking for B corroboration, one must first look at the broad spectrum of approver's version and then find out whether there is other evidence to lend assurance to that version.

'

C

Evidence Act, 1872: s. 27 - Discovery under - _Held: It should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of information supplied by accused in custody - In the instant case, bombs, wires, ammonium nitrate and other i\ems were recovered at the instance of accused - The accused has stated about the fact of planting of bomb at a D particular site in the stadium and led. to the said place from which the bomb was recovered - The said fact is a relevant fact and admissible in evidence.

Explosive Substances Act, 1908:

E

s.2 - Explosive Substance - Ammonium nitrate, fuse wire, empty boxes, Dynamite, Detonator, Gulla etc. - Seized from the possession of accused persons - Held: Possession of these articles in such large quantity by the accused gave credence to the prosecution version that possession was F conscious and intended to be used in blast - Explosive Act,

1884 - s.4(d}.

s. 7 - Consent by District Magistrate for prosecution -

Held: s. 7 does not require a sanction but only consent for G prosecuting a pf}rson for an offence under the Explosive Substance Act - Approval/consent granted by District Magistrate cannot be treated as vitiated - Document of consent of District Magistrate showed that the same was proved by the competent authority - Examination of District

H magistrate to prove consent is not necessary.

CHANDRA PRAKASH v. STATE OF RAJASTHAN

821

Code _of Criminal Procedure, 1973: Non-framing of A

specific charges - Held: The purpose of-framing of charges is that accused should be informed with certainty and accuracy of charge brought against him - There should not be vagueness - Accused must know the scope and particulars in detail - In the case at hand, the charges were B framed - That apart, neither any prejudice was caused nor there was any failure of justice ..

Criminal Law: Criminal conspiracy - While dealing with the fact of criminal conspiracy, it has to be kept in mind that C in case of conspiracy, there is no direct evidence - Circumstances proved before, during and after the occu"ence have to be considered to decide about complicity of accused - Such conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the criminal conspiracy.

D

Foreigner Act, 1946: s. 14 - Accused of Pakistan nationality - Neither having passport nor visa - No y_alid document to be in India - Offence under the Act proved.

E

The prosecution case was that on the Republic day i.e. on 26th January, 1996, an explosion took place in Jaipur Stadium. The trial court convicted all the accused and sentenced them individually in respect of all the specific charges framed against them under the Foreigner Act, 1946, Prevention of Damage to Public Property Act, Penal Code, Explosive Act, 1908 and Explosive Substance Act, 1884. The trial court held that during the course of investigation, appellant-AM was arrested from Srinagar and no passport or visa was found in his possession and, therefore, the offence punishable G under Section 14 of the Foreigners Act was established beyond reason"ble doubt. From the evidence of the approver, PW-1 and the information under Section 27 of the Evidence Act, it concluded that prior to 26.1.1996, two time bombs were implanted by appellant-AM and the H

F

822

SUPREME COURT REPORTS

[2014] 6 S.C.R.

A charge of crime punishable under Section 9B of the1 Explosive Act levelled against ~ppellant-AM was proved beyond reasonable doubt. In respect of appellant-RB and appellant-AH, the trial court held that appellant-AH had been visiting appellant-CP quite frequently and both the B accused persons had helped appellant-AM and conspired in the commission of the offence. The trial court further held that the explosive substances including gelatin and dynamite in huge quantity were recovered from the possession of appellant-CP on 1.8.1997 which c were used in both the bombs; that approver PW-1, was an associate and colleague of appellant-AM and prior to the incident, the explosive substan~e was brought by appellant-CP in village Farah, where PW-1 used to live with him; that 28 kattas of ammonium nitrate wasl recovered from possession of appellant-CP. The High Court confirmed the order of conviction.

0

E

In the instant appeals, it was contended for the appellants that sanction under section 7 of the 1908 Act was not given and, therefore, the trial was vitiated; that there was delay in holding of Test Identification Parade; that the testimony of the PW-1 was not admissible in evidence; that recovery made from the appellant-CP at the instance of information given by PW-1 was not admissible in evidence; that Section 27 of the Evidence F Act, 1872 was not applicable to the facts of the case as appellant-CP was not arrested by the time the alleged discovery took place; that the recovery of ammonium nitrate is not punishable either under Section 1908 Act or under the 1884 Act; and that the prosecution has failed G to prove the nexus of appellants-AH and RB with

appellant-AM in the crime.

Dismissing the appeals, the Court

HELD: 1. The consent as required under the H Explosive Act, 1908 was given by the concerned District

CHANDRA PRAKASH v. STATE OF RAJASTHAN

823

Magistrate as ~xt. P-277/278. His authori~y was not A questioned. It was urged before. the Court that there had been no application of mind inasmuch as the relevant materials were not placed before him while according sanction. When such a point was not raised, the consequences have to be dilferent. The District B Magistrate had the authority to. give consent for the prosecution. Section 7 does not require a sanction but ·only consent for prosecuting a person for an offence under the Explosive Substances Act. The object of using the word "consent" instead of "sanction" in Section 7 is c to have a purely subjective appreciation of the matter before givi.ng the necessary consent. The approval/ consent granted by the District Magistrate in the obtaining factual matrix cannot be treated as vitiated. A perusal of the document of consent of District Magistrate showed that the same has been proven by the competent person and the document has been marked as Ext. P- 277/278. The examination of the District Magistrate to prove his consent is really not necessary. [Paras 24, 25, 26, 28 and 29] [847-8, C, F; 848-C-D-F-H; 849-A]

0

E

Erram Santosh Reddy and Ors. v. State of Andhra Pradesh (1991) 3 SCC 206; State of Tamil Nadu v. Sivarasan alias Raghu alias Sivarasa and Ors. (1997) 1 SCC 682: 1996 (8) Suppl. SCR 243 - relied on.

State of M.P. v. Bhupendra Singh (2000) 1 SCC 555:

2000 (1) SCR 104 - referred to.

F

2. No dispute, appellant-AH arid appellant-RB were arrested on 8.6.1997 and the test identification parade was \... held on 25.6.1997. Thus, it is evident that they were G arrested long after the occurrence but the test identification parade was held within a period of three weeks from the date of arrest. The analysis of the trial ' court showed they could not have been arrested as the materials could not be collected against them and things H

824

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[2014] 6 ~.C.R.

A got changed at a later stage. That apart, the witnesses, PW-78, and PW-30 identified them in the Court. The delay per se cannot be fatal to the validity of holding an identification parade, in all cases, without exception. The purpose of the identification parade is to provide 8 corroborative evidence and is more confirmatory in its nature. The witnesses had identified the accused persons in court and nothing was elicited in the cross examination even to create a doubt. [Paras 31, 32, 33 and 34) [849-C-F; 850-0-G]

c

. Ramanand Ramnath v. State of MP. (1996) 8 SCC 514; State of Maharashtra v. Suresh (2000) 1 SCC 471: 1999 (5) Suppl. SCR 215; Anil Kumar v. State of U.P. (2003) 3 SCC 569: 2003 (1) SCR 1067; Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through' D Public Prosecutor, Hyderabad, Andhra Pradesh (2012) 6 SCC

174: 2012 (6 ) SCR 611 - relied on.

3. It is established as a rule of prudence that the conviction could only be based on the testimony of the E accomplice if it is thought reli.able as a whole and if it is corroborated by independent evidence either direct or circumstantial, connecting the accused with the crime. While looking for corroboration, one must first look at the broad spectrum of the approver's version and then find F out whether there is other evidence to lend assurance to · that version. The nature and extent of the corroboration may depend upon the facts of each case and the corroboration need not be of any direct evidence that the accused committed the crime. The corroboration even by G circumstantial evidence may be sufficient. PW-1 has clearly deposed that appellant-AM used to visit the Madarsa at village Farah. AH and AM were seen at village Farah many times without any reason before the incident. As far as appellant-AH and appellant-RB were concerned, he deposed that both the accused used to go to the

H

CHANDRA PRAKASH v. STATE OF RAJASTHAN

825

house of appellant-CP in Roopwas to collect the A "masala" in a cover box. Both of them used to meet appellant-AM in the Madarsa at village Farah on a number of occasions. He used to contact appellant-AM from Firozabad ma!ly times and the watches fixed with bombs as timers were given at Farah by appellant-AH to make B the bomb. It also came out in his evidence that he along with appellant-RB and other accused persons used to visit the Madarsa at village Farah. His ~vidence also showed that RB and PW-1 used to br:ing expfosive from Roopwas to village Farah and he mentioned that c appellant-RB had brought five boxes of "masala" for Rs.10,000/- from the house of appellant-CP and those boxes were unloaded at the Madarsa in Farah. PW-1 was asked to carry the boxes along with appellant-RB and appellant.AH. He clearly deposed about the conspiracy 0 that was told to him by appellant-AM. As far as appellant- CP ,Was concerned, it came in the evidence that though PW-1 used to visit his house at Roopwas along with other accused persons, yet he used to stay outside- the house of CP and the others used to go to bring "masala'~ from the house of appellant-CP. The alleged "masala" u·sed to be brought in boxes from time to time to the associates of appellant-RB anCI appellant~AH who used to come to Madarsa at Farah. From -the analysis of the said evidence, it is clear that PW-1 implicated himself in the crime. He . has not made any effort to give any statement which is F exculpatory. He has spoken quite graphically about the involvement of all the accused persons. [Paras 42, 46, 47 and 48) [855-A-B; 856-B-G; 857-A-D]

E

Bhiva Doulu Patil v. State of Maharashtra AIR 1963 SC G

599: 1963 SCR 830 ; Mohd. Husain Umar Kochra etc. v. K.S. Dalipsinghji and Anr. etc. (1969) 3 SCC 429: 1969 (3) SCR 130; Saryvan Singh S!o Rattan Singh v. State of Punjab AIR 1957 SC 637: 1957 SCR 953; Ravinder Singh v. State of Haryana (1975) 3 SCC 742: 1975 (3) SCR 453; Mrinal H

826

SUPREME COURT REPORTS .

[2014] 6 S.C.R.

A Das and Ors. v. State of Tripura AIR 2011 SC 3753: 2011 (14) SCR411; Devendran v. State of T.N. (1997) 11 SCC 720: 1997 (4) Suppl. SCR 591; Raman/al Mohan/al J~andya v. State of Bombay AIR 1960 SC 961; Tribhuvan ~:~h- ,,.,..)II··.• .. !bJath. v. State of Maharashtra. (1972) 3 SCC 511; Ram Narain B v. State ofRajasthan (1973) 3 SCC 805: 1973 (3) SCR 463; Ba/want Kaur v. Union Territory of Chandigarh (1988) 1 SCC 1: 1988 (1) SCR 745; Chandan and another v. State of Rajasthan (1988) 1 SCC 696: 1988 (2) SCR 599; Haroon Haji Abdulla v. State of Maharashtra A_IR 19t)8 SC 832: 1968 c SCR 641 ; Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762: 1962 SCR 195; Renuka Bai alias Rinku alias Ratan and Anr. v. State of Maharashtra (2006) 7. SCC 442: 2006 (5) Suppl. SCR 643; Ranjeet Singh and Anr. v. State of Rajasthan (1988) 1 SCC 633 - relied on.

.

D

3.2. On the basis of the evidence of PW-1, appellant C P was arrested on 1.8.1997. On the basis of the information of the appellant-CP, the Investigating -Officer searched hit; house and godown and recovered 28 boxes E of ammoniurn o!trate. It came out in the evidence 'that appellant-CP opened tile lock-of the godown the key of which was in his possession; PW-32, an eye witness t~ the seizure of articles from the godown of appellant-CP categorically stated that the accused CP led to th recovery of red and blue coloured bundles from th , F godown of the building. The office of PW-32 was also in the said building. From the godown, fuse wires and five kilograms of grey coloured material was also recovered. The Investigating Officer PW-71, has also proven the factum of recovery. PW-22, who had accompanied the investigating team deposed that the explosive which was used in the live bomb had ammonium nitrate/gelaltine. I PW-34, who is an expert witness in respect of explosives ; deposed that the ammonium nitrate that was seized from 1 the godown of appellant-CP was in such a condition that :

G

H

. '

.

CHANDRA PRAKASH v. STATE OF RAJASTHAN

827

it could be used to prepare a bomb. [Para 49) [857-F-H; A 858-A-C]

4.1. The essence of the proof of a discovery under S~ction 27 of the Evidence Act is only th\t it should be credibly proved. that the discovery made was a relevant 8 and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having l;>een given by the accused in custody is credible C and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon. [Para 50] (858-E-G]

·

D

Mohd. Arif alias Ashfaq v. State (NCT of Delhi) (2011) ·13 SCC 621: 2011 (10) SCR 56 ; Vikram Singh and Ors. v. State of Punjab (201O)"3 SCC 56: 2010 (2) SCR 22; State of Uttar Prad~sh v. Deoman Upadhyaya AIR 1960 SC 1125; Anter Singh v. State of Rajasthan (2004) 10 SCC 657: 2004 E (2) SCR j23; Madan Singh v. State of Rajasthao (1978) 4 SCC 435; Mohd. Aslam v. State of Maharashtra (2001) 9 SCC 362; Pulukuri Kottaya v.. Emperor AIR 1947 PC 67; Prabhoo v. State of U.P. AtR 1963 SC 1113: 1963 Suppl. SCR 881; Mohd. lnayatullah v. State of Maharashtra (1976) 1 SCC 828: F 1976 (1) SCR 715; State of Maharashtra v. Damu (2000) 6. SCC 269: 2000 (3) SCR 880; Aftab Ahmad Anasari v. State of Uttaranchal (2010) 2 SCC 583: 2010 (1) SCR 1027 - relied on.

·iJ.2. When the accused had given a statement that G

related to th~ discovery of an electric wire by which the crime was committed, the said disclosure statement was admissible as evidence. As the material brought on record would show, the accused "\'as in the custody of the investigating agency and the fact whether he was H

. 828

SUPREME COURT REPORTS

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[2014) 6 S.C.R.

A · formally arr~sted or not will not vitiate the factum of leading to discovery. However, the accused was also arrested on that day. As regards recovery from appellant . AM was concerned, it is born9' out from the record that after his arrest on 28.6.1997, he gave information at 6.00 B · a.m., about another bomb and on the basis of the said Information the Investigating Officer, PW-71, visited the spot along with the accused and at his instance a live bomb was recovered which was underneath the earth. In the said information the accused had stated that the two c . bombs were inside the SMS Stadium and he could verify the places by going inside the stadium. In the evidence of PW-6, PW-7 and PW-22, it has come on record that the bombs were recovered at the instance of appellant-AM on 28.6.1998. This fact was corroborated by PW-16 and PW- D 10 who also accompanied the investigating team. PW-22 had clearly stated that the bomb recovered was high explosive time bomb and the battery was inside the timer\ and the same was switched on and he further confirmed that electric detonator was used in the bomb. PW-16 also E' stated that the electric detonator was found in the bombJ' and the same was neutralized. PW-67, in his deposition, gave description of loss caused due to the explosion of.' the time bomb. He had further deposed that lid of stainless steel of casio watch had been recovered from' the scene of crime. The said accused has stated about\ the fact of planting of bomb at a particular site in the stadium and led to the said place from which the bomb 1 was recovered. The said fact is a relevant fact which is admissible in evidence. [Paras 56, 57, 58, 59 & 61) [861- F, G; 862-A-H; 863-A; 864-A]

F

1

1

G

Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396: 2011 (6) SCR 330 ; Manu Sharma v. State (NCT of De.I hi) (2010) 6 SCC 1: 2010 (4) SCR 103; Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90: 1979 (2) H SCR 330 ; Himachal Pradesh Administration v. Om Prakash

CHANDRA PRAKASH v. STATE OF RAJASTHAN

829

(1972) 1 SCC 249: 1972 (2) SCR 765; A.N. Venkatesh and A Anr. v. State of Kamataka (2005) 7 SCC 714 -

relied on.

5. The seizure report showed that apart from ammonium nitrate, fuse wire and empty boxes were also seized. That apart, 17 packs containing blue coloured 8 fuse wire kept in plastic (polythene) bags and four boxes containing blue coloured fuse wire, one carton of explosives detonating fuse measuring 1500 meters in length and 38 kg in weight, containing four wooden logs of red colour, 375 meter wire in each Gattha and black C coloured cap fitted on the tip of the wire, three cartons of explosive Belgelative 90 (Gulla Dynamite) net weight of each being 25 Kg. with "Division I Class ll safety distance category Z:Z. Bhar~t Explosive Ltd. 9 KM lalitpur (U.P.), four packets of O.D. Detonator containing 1600 detonators, a substance of light yellow colour kept inside D a carton of paer in a plastic bag weighi!lg nearly 5 kg and 16 empty cartons, one of gulla and 15 of fuse wire, were seized. Section 2 of the 1908 Act has a deeming provision which states that explosive substance would include any materials for making any explosive E substance. Similarly, Section 4(d) of the 1884 Act has a broader spectrum which includes coloured fires or any other substances, whether single chemical compound or a mixture of substances. Apart from ammonium nitrate other articles were seized. The combination of the same, F as per the evidence of the expert witness, was sufficient to prepare a bomb for the purpose of explosion. In addition to the same, huge quantity of ammonium nitrate was seized and it was seized along with other items. The cumulative effect is that the possession of these articles G

. in such a large quantity by the accused gave credence to the prosecution version that the possession was conscious and it was intended to be used for the purpose of the blast. [Paras 64 & 65] [865-D-H; 866-A-C]

H

830

SUPREME COURT REPORTS

(2014] 6 S.C.R.

A

6. The next aspect dealt is non-framing of specific charge. A perusal of the record showed the Judge has framed the charges specifically by putting the charges to the accused. The purpose of framing of charges is that the accused should be informed with certainty and B accuracy of the charge brought against him. There should not be vagueness. The accused must know the scope and particulars in detail. In the case at hand, the charges were framed. That apart, neither any prejudice was caused nor there was any failure of justice. [Paras

c 66 and 68) [866-D-F; 867-G; 868-A]

Santosh Kumari v. State of Jammu and Kashmir and ·ors. (2011) 9 SCC 234: 2011 (13) SCR 1054; K. Prema S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217: 2002 (3) Suppl. SCR 339; State of U.P. (2004) 5 SCC 334; State D of U.P. v. Paras Nath Singh (2009) 6 sec 372: 2009 (8)' SCR 85; Annareddy Sambasiva Reddy v. State of A.P (2009} 12 sec 546: 2009 (6) SCR 755 - relied on.

E

7. The trial Judge inappositely drew certain inferences to show that there was a criminal cons'piracy and the High Court concurred with the same. The deposition of PW-11, 12, 13, and PW-17 showed that appellant-AM, appellant-RB and appellant-AH used to meet at the Madarsa at village Farah. That apart, PW-1 F also deposed implicating himself that when there used to be discussion at madarsa in the village Farah about the suitable place for planting the bomb, the timer of the bomb was supplied. The chain of events and the participation of the accused persons which had the G genesis in the discussion and the meetings, the purchase of ammonium nitrate and other items, carrying of the boxes to the Madarsa and all other factors cumulatively showed that there was conspiracy. While dealing with tht facet of criminal conspiracy, it has to be kept in mind that in case of a conspiracy, there cannot be any direc·

CHANDRA PRAKASH v. STATE OF RAJASTHAN

831

evidence. Express agreement betw~en the parties A cannot be proved. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the B criminal conspiracy. Ttie opinion expressed by the trial Judge as well as by the High Court that there has been conspiracy between the parties to commit the blast on a particular day cannot be found fault with. [Paras 69, 70 and 73] [868-B-H; S69-D, E]

·

·

'c

Yogesh · alias Sachin Jagdish. Joshi v. State of Maharashtra (2008) .10 SCC 394: 2008 (6) SCR 1116; Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr. '(2013) 1 SCC 613: 2012 (9) S<;_!j,561; Yakub.Abdul Razak Menon v. The State of Maharashtra, through CBI, Bombay D ,2013 (3) SCALE 565 - relied on.

8. The trial Judge, analyzing the material on record, came to hold that appellant-AM was a resident of Pakistan and he had no valid document to be in India. In E !his statement under Section 313 of the Code, he had not ;disputed that he was not having passport or visa and he was of Pakistan nationality. Thus, the offence under the said Act was proved beyond reasonable doubt. [Paras 75 .& 76] [871-D-F]

F

, 9. These kinds of activities by anyone breeds ;lawlessness, fear and affects the fundamental unity of our 'great country. A nation with a desire to prosper is 'required to maintain high degree of law and order .situation apart from respecting "imperatives of· .internationalism". Certain individuals harbouring ,unacceptable notions and inexcusable philosophy and, on certain occasions, because of enormous avarice, try to jeopardize the cohesive and collegial fabric of the State. This leads to national decay and gives rise to

G

832

SUPREME COURT REPORTS

[2014] 6 S.C.R.

A

inc_omprehensible anarchy. It reflects non-reverence for humanity. Be it categorically stated, every citizen of this country is requirt::d to remember that national patriotism is founded on the philosophy of public good. Love for one's country and humanity at large are eternally · B cherished v~lues. The infamous acts of the appellants are really condemnable not only because of the dent they intended to create in the social peace and sovereignty of the nation, but also from the humane point of view as they are founded on greed, envy, baseless anger, pride, c prejudice and perverse feelings towards mankind. When a devastating activity like the present one occurs on the Republic Day of our country, it injures the nationality, disturbs the equilibrium of each individual citizen, creates a concavity in the equanimity of the peace of the State, generates a stir in the sanctity and divinity of law and order situation which is paramount in any civilized State, attempts to endanger the economic growth of a country and, in the ultimate eventuate, destroys the con~eptual normalcy of any habitat. Law cannot remain silent to this because it is the duty of law to resist such attacks on E peace. It is manifest that the accused-appellants had conspired to send a savage stir among the citizenry of this country on the Republic Day. The great country like ours cannot succumb to this kind of terrorist activity as it is nationally as well as internationally obnoxious. Such tolerance would tantamount to acceptance of defeat. The iron hands of law has to fall and in the obtaining facts and circumstances, as the charges have been proved beyond reasonable doubt, the law has rightly visited the appellants. [Paras 77, 78} [871-G, H; 872-A-G]

F

0

G

R.K. 6Jalmia v. Delhi Administration AIR 1962 SC 1821: 1963 SCR" 253; Lennart Schussler and Anr. v. Director ol Enforcement and Anr. (1970) 1 SCC 152: 1970 (2) SCR 7-60; Shivanarayan Laxminarayan Joshi v. Sta.te ol H Maharashtra and Mohammad Usman Mohammad Hussain

CHANDRA PRAKASH v. STATE OF RAJASTHAN

833

Maniyar and Anr. v. State of Maharashtra." AIR 1981 SC A relied on. 1062: 1981 (3) SCR 68 -

Case Law Reference :

2000 (1) SCR 104 (1991) 3 sec 206:

Referred to

Para 23

Relied on

Para 24

1996 (8) Suppl. SCR 243 Relied on (1996) 8 sec 514

Relied on

1999 (5) Suppl. SCR 215 Relied on

2003 (1) SCR 1067

2012 (6) SCR 611

1963 SCR 830

1969 (3) SCR 130

1957 SCR 953

1975 (3) SCR 453

Relied on

Relied on

Relied on

Relied on

Relied on

Relied on

Para 26

Para 31

Para 32

Para 33

Para 33

Para 36

Para 37

Para 38

Para 39

2011 (14) SCR 411

Relied on

Para 40

1997 (4) Suppl. SCR 591 Relied on

Para 41

AIR 1960 SC 961 (1972) 3 sec 511

1973 (3) SCR 463

1988 (1) SCR 745

Relied on

Para 41

Relied on

Para 41

Relied on

Relied on

Para 41

Para 41

1988 (2) SCR 599

Relied on

Para 42

1968 SCR 641

Relied on

Para 43

1962 SCR 195

Relied on

Para 44

2006 (5) Suppl. SCR643 Relied on (1988) 1 sec 633

Relied on

Para 45

Para 46

B

c

D

E

F

G

H

834

SUPREME COURT REPORTS

[2014) 6 S.C.R.

A

2011 (10) SCR 56

Relied on

Para 50

2010 (2) SCR 22

Relied on

Para 51

AIR 1960 SC 1125

Relied on

Para 52

2004 (2) SCR 123 .(1978) 4 sec 435 c2001) 9 sec 362

Relied on

Para 53

Relied on

Para 53 ·

Relied on

Para,53

AIR 1947 PC 67

Relied on

Para 53

1963 Suppl. SCR 881

Relied on

1'976 (1) SCR 715

Relied on

Para 53 '. Para 53

2000 (3) SCR:c.880

Relied on

Para 54

2010 (1) SCR 1027

Relied on

Para 55

2011 (6) SCR 330

Relied on

Pllra 56

2010 (4) SCR 103

2010 (4) SCR 103

<e. ,,

Relied on

Para 56

Relied on

Para 56

1979 (2) SCR 330

Relied on

Para 59

1972 (2) SCR 765

c2005) 1 sec 714

Relied on

Para 59

Relied on

Para 60

2011 (13) .SCR 1054

Relied on

Para 66

2002 (3) Suppl. SCR 339 Relied on (2004) 5 sec 334

Relied on

2009 (8) SCR85

2009 (6) SCR 755

_2008 (6) SCR 1116

2012 (9) SCR561

Relied on

Relied on

Relied on

Relied on

Para 67

Para 67

Para 67

Para 67

Para 70

Para 71

2013 (3) SCALE 565

Relied on

Para 72

B

c

D

E

F

G

H

CHANDRA PRAKASH v. STATE OF RAJASTHAN

835

1963 SCR 253

1970 (2) SCR 760

1981 (3) SCR68

Relied on Relied on Relied on

Para-72

A

·Para 72

Para 72 ·

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

No.1155 of 2014.

From the Judgment and Order dated 03.02.2009 in. SBCRA No. 189/2000, pf the High Court of Rajasthan at jaipur.

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Crt ~- Nos. 1156-57 arid 1160 of 2014.

' Dr. Manish Singhvi, AAG., Sushil Kumar Jain, Puneet Jain, · Anurag Gohil, Pratibha Jain, Balaji Srinivasan, Pragati Neekhra for the appearing parties.

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The Judgment of the Court was delivered by

DIPAK MISRA., J. 1. On 26th January, 1996, a d~y of celebration and conscientious remembrance of the "Red Letter Day" in the history of India because 26th January is the date in E 1950, when our·organic, inclusive, humane and compassionate Constitution came into existen~e being given by the people of this country to themselves and the nation has been obliged to jubilate remembering the said . important day in our national history, for it chartered the path of many an emancipation and F oonferred on the people the highly cherished fundamental rights; about 8.30 a.m., there was a blast of explosive substances 'between Gate No.12 and Gate No. 13, towards the southern

and eastern side of Sawai Man Singh Stadium Jaipur, where · ~e Stpte level function on Republic Day was going to be G celebrated. Soon after the blast, Prahlad Singh, the Station House Officer, Police Station lodged an FIR about 9.30 a.m. which was registered as FIR No. 39/1996. As per the FIR, when the blast took place, the people who had assembled were asked to leave the stadium so that there could be a check. H

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A During the check, it was found that due to the blast, a big size crater had come into existence at the scene of explosion. That apart, by the said explosion, the sand hopped upward and fell on the places meant for sitting in the stadium and also on the roof. The glasses of the windows of the pavilion near the B explosion had broken into pieces. At the time when the explosion had occurred, only police personnel but no civilians were present in that part of the stadium. The public at large, which was present inside the Stadium, was informed to leave the Stadium so that the check and security could be carried c out. Due to the sound caused by the explosion, one Ramgopal Choudhary, an employee of the Public Works Department, who was passing nearby, had met with an injury on his ear for which he was immediately sent to the hospital. On the basis of the FIR, offences under Section 120-B read with Sections 307 and D 427 IPC, under Section 3 of the Prevention of Damage to Public Property Act, 1984 and under Section 3 of the Explosive Substances Act, 1908 (for short "the 1908 Act") and also under Section 98 of the Explosive Act, 1884 (for brevity "the 1884 Act") were registered and the investigation commenced. Later E on, the investigation of the case was transferred to C.1.D(C.B.).

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2. During theinvestigation, an anonymous letter in Urdu language dated 1st June, 1997 was sent to the Superintendent of Police, wherein some information was given which was alleged to have been gathered by the senders who described themselves as well wishers while they were in custody in the Central Jail, Jaipur, in respect of the bomb-blast that took place on 26th January, 1996 at the SMS Stadium, Jaipur. In that letter, the names of some persons, i.e., Raies Beg of Agra, Dr. Abdul Hamid of Firozabad and Pappu Puncturewala were G mentioned. It was also mentioned that the ISi of Pakistan was behind the bomb-blast. On the basis of the said information, the investigating officer arrested five persons, namely, Abdul Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and Chandra Prakash on various dates.

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3. Duringthe investigation, the investigating agency A

recovered a live time bomb from SMS Stadium and explosive items were recovered from Roopwas, District Bharatpur. In the course of the investigation, accused Pappu @ Saleem filed an application under Section 306 of the Code of Criminal Procedure (for brevity "the_ Code") before the Chief Judicial B Magistrate on 14.8.1997 who, by prder dated 30.8.1997, authorized the Additional Chief Judicial Ma{!listrate No. 6 to record the stateme11t of the said accused under Section 164 of the Code and thereafter, the Chief Judicial Magistrate, by a reasoned order dated 20.9.1997, allowed the application. After c carrying out the detailed investigation, the police laid the charge-sheet against the arrested accused persons, namely, Chandra Prakash, Abdul Mateen, Raies Beg and Abdul Hamid.

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4. All the accused persons abjured guilt, pleaded false D

implication and, accordingly, faced trial.

5. The learned trial Judge framed different charges against ttie four accused persons and we think that it would be apt to refer to the charges framed against each of them. As far as E Chandra Prakash is concerned, the charges that were framed against him were under Section 9B of the 1884 Act and under Sections 3, 4, 5 read with Section 6 of the 1908 Act. As far as Abdul Mateen is concerned, he was charged with the offences under Section 14 of the Foreigners Act, 1946, under Sections F 3, 4 and 5 of the 1908 Act, under Section 9B of the 1884 Act, under Section 3 of the Prevention of Damages to Public Properties Act and under Sections 307, 118, 435 and 456 IPC. As far as Raies Beg and Abdul Hamid are concerned, they were faced with similar charges, namely, under Section 9B of G the 1884 Act, under Sections 3, 4 and 5 read with Section 6 of the 1908 Act and under Sections 307 /120B, 118/120B and 435/120B IPC.

6. To bring home the charges against the accused persons, the prosecution examined as many as 78 witnesses and H

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A brought on record exhibits P-1 to P-296. In defence, no witness was examined. on behalf of any of the accused persons. However;·documentary evidence was produced by them, i.e., exhibits D-1 to E>-5. We shall refer to the relevant parts of the testimonies of ttle'vital witnesses and advert to the documents s which have been stressed an.d emphasized upon by the

prosecution at a later stage.

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7. The accused persons in their statements under Section 313 of the Code took separate plea and hence, it is obligatory C on our part to record their pleas individually. Abdul Mateen admitted that he is a Pakistani and he had remained as a Pakistani always; that he had never come to India before his arrest; that he did not know any person in India; that he never visited the places, namely, Jaipur, Farah, Roopwas, Agra Firozabad or any other city; and that he had never given any information to the police and no recovery was made by the police at his instance and he had never identified any place. The plea of Abdul Hamid was that he never gave any information to the police during the investigation of the case and he did not furnish any information about the shop of Mohit Jain, E PW-30, situated at Delhi and he had been falsely implicated. Raies Beg took the plea that due to communal riots he had been falsely booked in the crime. Accused Chandra Prakash, apart from false implication, denied any relationship with Pappu @Saleem, PW-1, and further stated that no key was recovered from him and he did not open any godown and room with his keys. He also took the stand that he had not taken any room on rent in Krishi Upaz Mandi or any shop near the power house on rent and disputed the recovery from any shop. The trial court, appreciating the oral and documentary evidence on record, by its judgment and order dated 22.04.2000 in Sessions Case no. 8/98, convicted all the accused and sentenced all of them individually in respect of all the specific charges framed against them. The offence for which each of them had faced trial has been already mentioned hereinabove. All the accused had

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

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8. Accused Abdul Mateenwas sentenced to undergo five A

years rigorous imprisonment and a. fine of Rs.10,000/-, in default of payment of fine to further undergo one year's simple imprisonment under Section 14 of the Foreigners Act; ten years rigorous imprisonment and a fine of Rs.20,000, in default to further undergo two years' simple imprisonment under Section 4 of the Prevention of Damages to Public Property Act;' three years rigorous imprisonment and a fine of Rs.3,000/-, in default to further undergo six months' simple imprisonment under Section 456 IPC; to undergo ten years rigorous imprjsonment and a fine of Rs.10,000/-, in default to further undergo two years' simple imprisonment under Section 307 ~read with Section 1208 IPC; seven years rigorous imprisonment and a fine of Rs. 7,000/-, in default to further undergo one 0 and half years' simple imprisonment under Section 435 read with Section 1208 IPC; five years rigorous imprisonment and a fine of Rs.5,000/-, in default to further undergo one year's simple imprisonment under Section 118 read with Section 1208 IPC; two years rigorous imprisonment and a fine of Rs.2,000/-, in default to further undergo three months' simple imprisonment under Section 98 of the 1884 Act; imprisonment for life ana a fine of Rs.20,000/-in default to furthet" undergo three years' simple imprisonment under Section 3 of the 1908 Act; seven years rigorous imprisonment and a fine of Rs.7,000/-, in default to further undergo one and half years' simple imprisonment under Section 4 of the 1908 Act; • and five years rigorous imprisonment and a fine of Rs.5,000/ , in default to further undergo one year's simple imprisonment under Section 5 of the 1908 Act.

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9. Accused Chandra Prakash was sentenced to undergo . two years rigorous imprisonment and a fine of Rs.2,000/-, in G default to further undergo three months' simple imprisonment under Section 98 of the 1884 Act; ten years rigorous imprisonment and a fine of Rs.10,000/-, in default to further undergo two years' simple imprisonment under Section 3 read with Section 6 of the 1908 Act; seven years rigorous H

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imprisonment and a fine of Rs.7,000/-, in default to further undergo one and half years' simple imprisonment under Section 4 read with Section 6 of the 1908 Act; and five years rigorous imprisonment and a fine of Rs.5,000/-, in default to further undergo one year's simple imprisonment under Section

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10. Accused Abdul Hamid and Raies Beg were sentenced to undergo two years rigorous imprisonment and a fine of Rs.2,000/-, in default to further undergo three months' simple imprisonment; ten years rigorous imprisonment and a fine of Rs.10,000/-, in default to further undergo two years simple imprisonment under Section 307 read with Section 1208 IPC; seven years rigorous imprisonment and a fine of Rs.7,000/-, in default to further undergo one and half years' simple imprisonment under Section 435 read with Section 120B IPC; five years rigorous imprisonment and a fine of Rs.5,000/-, in default to further undergo one year's simple imprisonment under Section 118 read with Section 120B IPC; ten years rigorous imprisonment and a fine of Rs.10,000/-, in default to further undergo two years' simple imprisonment under Section E 3 read with Section 6 of the 1908 Act; seven years rigorous imprisonment and a fine of Rs.7,000/-, in default to further undergo one and half years' simple imprisonment under Section 4 read with Section 6 of the 1908 Act; and five years. rigorous imprisonment and a fine of Rs.5,000/-, in default to further undergo one year's simple imprisonment under Section 5 read with Section 6 of the 1908 Act.

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11. At this juncture, we think it appropriate to state the findings recorded by the learned trial Judge against each of the G accused. As far as AbdalMateen is concerned, the trial court held that it was clear from the evidence of GPS Wirk, PW-69, Assistant Commander, BSF, that Mhd. Ashlam Baba was the' financial head of a terrorist organization by the name of "Harkat-ul-Ansar", and during the course of investigation, the accused Abdul Mateen was arrested from Srinagar and no

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.)

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passport or visa was found in his possession. The offence A punishable under Section 14 of the Foreigners.Act which had been levelled against him was established beyond reasonable doubt. The live time bomb was duly recovered and accused Abdul Mateen had exclusive knowledge. and it was he who planted the time bomb at that place and it was proven from the B testimonies of the witnesses. From the evidence of the approver, Pappu, and the information under Section 27 of the Evidence Act, it could be concluded that prior to 26.1.1996, two time bombs were implanted by accused Abdul Mateen. It was clear from the testimonies of Jai Narayan, PW-6, and Gopal · c Saini, PW-7, that Abdul Mateen· had led to the recovery of the bomb and the charge of crime punishable under Section 9,B of the Explosive Act levelled against the accused Abdul Mateen has been proved beyond reasonable doubt.

12. In respect of Raies Beg and Abdul Hamid, the trial D

court held that Abdul Hamid had been visiting accused Chandra Prakash at Roopbas quite frequently and both the accused 'persons had helped accused Abdul Mateen in the commission of the offence. They used to meet at the Madarsa of village Farah and the conspiracy was hatched. The learned trial Judge E came to hold that the involvement of the said accused per&ons in the commission of the crime was reflectible from the evidence of number of witnesses and the prosecution had established their role beyond any shadow of doubt.

13. Pertaining to Chandra Prakash, the Court held that explosive substances including gelatin and dynamite in huge quantity were recovered from his possession on 1.8.1997. Scanning the evidence, it recorded that the dynamite was used in both the bombs. He further opined that.eappu@ Saleem, G PW-1, was an associate and colleague of accused Abdul Mateen and prior to the incident, the explosive substance was brought from Chandra Prakash in village Farah, where Pappu @Saleem used fb live with him. That apart, Chandra Prakash was identified by 1P~ppu and the key of the godown ,was with

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the accused and he opened the lock of the said godown from which 28 kattas of ammonium nitrate were recovered. It was also clear from the evidence of Chetandass Rawatani, PW-34, that the goods which were recovered from the accused were utilized for the preparation of the explosive substance.

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14. On the basis of the aforesaid findings and conclusions, the learned trial Judge convicted the accused persons and sentenced them as has been stated hereinbefore.

15. Being grieved by the aforesaid conviction and sentence, the accused persons preferred separate appeals C before the High Court being D.B. Criminal (Jail) Appeal No. 318 of 2000, D.B. Criminal Appeal Nos. 189 of 2000, 258 of 2000 and 369 of 2000. The State filed application for grant of leave (D.B. Criminal Leave to Appeal No. 26 of 2008) with an application for condonation of delay of seven years and nine D months which was taken up along with the appeals preferred by the accused persons and the said appeal was dismissed on the ground of delay. However, it may be stated here that the High Court also addressed to the merits of the case of the State which pertained to enhancement of sentence and did not find E any substance in the same. As regards the appeals preferred by the accused persons, the appellate court did not perceive any merit and, resultantly, dismissed the same by way of judgment and order dated 3.2.2009. Hence, the assail is to the judgment of conviction and order of sentence by the

F applications of special leave petitions.

16. Leave granted in all the special leavt? petitions.

17. As all the appeals relate to defensibility of common judgment passed by the Hjgh Court in respect of all the G accused-appellants, they are disposed of by a singular

judgment.

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18. Mr. Sushil K. Jain, learned senior counseJ for the appellants, criticizing the- judgment of the trial court and that of the High Oourt, has raised the following contentions:

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

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(a) The learned trial Judge as well as the High Court A committed grave error by coming to hold th.at sanction given under Section 7 of the 1908 Act .cannot be found fault with, though the District Magistrate, Jaipur was not examined as a witness to prove the order of sanction.

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(b) The recovery made from the appellant, Chandra Prakash, at the instance of information given by Pappu_ would not be admissible in evidence-.· because at the time of giving information, Pappu c was an accused and _had not been treated as an approver which was done later on by virtue of the order of the Court. The testimony of the approver is not creditworthy since he has deposed that he was not aware about the contents of the box that he was asked· to carry by the other accused D persons.

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The alleged recovery of ammonium nitrate from the custody of accused, Chandra Prakash, either at the instance of Pappu @ Saleem, PW-1, or by the E accused-appellant cannot be accepted because Pappu @Saleem, PW-1 is an accomplice and in absence of any corroboration, his evidence has to be thrown overboard and further the case of prosecution that at the instance of the accused F articles were discovered is to be rejected inasmuch as Section 27 of the Evidence Act, 1872 could not have been made applicable to the facts of the present case, for Chandra Prakash had not been arrested by the time the alleged discovery took place.

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(d) Assuming the ammonium nitrate was recovered from the custody of Chandra Prakash, the same would not make out any offence punishable under any of the provisions of the 1908 Act or the 1884 H

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Act, for the simple reason that it does not come under the statutory definition. Even if the language of Sections 2 and 3 of the 1908 Act as well as Section 98 of the 1884 Act are stretched, it would not bring in its sweep the simple act of sale by Chandra Prakash without any intention or knowledge about its use.

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(e) No independent charges were framed against the accused-appellant under Sections 3, 4 and 5 of the 1908 Act but along with Section 6 of the 1908 Act and, therefore, conviction under the said provision i$ absolutely fallacious.

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19. Mr. Balaji Srinivasan, learned counsel appearing for the appellants, Abdul Hamid and Raies Beg, submitted as

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(A) The prosecution has failed to prove the nexus of the accused-appellants with the co-accused Abdul Mateen in the crime and nothing has been brought on record to establish the allegations. The only evidence that has been recorded is that Abdul Hamid used to meet Abdul Mateen, frequently at village Farah.

(B) There is no recovery of explosive substance or any incriminating materials from the appellant's house and in the absence of any recovery; the appellant cannot be roped in the crime.

(C) The allegation of the prosecution with regard to the relation of the.appellant with Abdul Mateen does not hav~ any substance and, in any cas.e, there is no proof to establish the same.

(D) The bomb blast at SMS Stadium, Jaipur took place on 26.01.1996 and the accused was arrested on 8.06.1997 and identification parade was conducted

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

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on 25.06.1997 about one .and half years after the A incident. This aspect vitiates the identification parade and creates a dent in the case of the prosecution for which·the appellants should be given the benefit of doubt.

20. Mr. Atul Kumar, learned counsel appearing for the appellant Abdul Mateen, in addition to the contentions raised by Mr. Jain and Mr. Balaji, has contended that no consent has been taken under Section 7 of the 1908 Act from the Central Government and hence, the entire trial is vitiated.

21. Dr. Manish Singhvi, learned Additional Advocate General appearing for the State of Rajasthan, supporting the judgment of the High Court, has submitted as follows: -

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The sanction given by the District Magistrate, on a D perusal, would show application of mind and, by no stretch of imagination, it can be regarded as invalid in law.

The recovery at the instance of an accused under Section 27 of the Indian Evidence Act is admissible E in evidence and the information given by Pappu, PW-1, which led to the recovery of huge quantity of explosives would per se be admtssible in evidence and this evidence is not to be treated as inadmissible merely because the accused at the F relevant point of time had subsequently become the approver.

(iii) The recovery of explosives by the accused,

Chandra Prakash, by opening the keys of the G godown would be a relevant fact and admissible under Section 8 of the Evidence Act, irrespective of the fact that the conduct falls within the purview of Section 27 of the Evidence Act.

(iv) The recovery of the explosive substance has been H

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made by the police vide memo Ex. P-42 during the search and seizure operatio_ns. Chetan Das Rawatani, PW-34, Explosive Expert, has stated that the articles recovered in Ex. P-42 were explosive articles and the same has also been proved by the FSL Report, Ex. P 234.

The evidence of the approver P.appu, PW-1 , is admissible as substantive evidence u/s 133 of the Evidence Act. In the evidence of the approver, it has ·been mentioned that the accused, Chandra Prakash, was engaged in the supply of materials for solicitation of money for the commission of offence under the 1908 A~t. Possession of huge quantity of ammonium nitrate without any plausible explanation by the ,acc;u.sed, Chandra Prakash, corroborates the eviden~e .of the approver.

22. First, we shall deal with.the ·issue of sanction. Section

7 of the 1908 Act reads as fOllows:

"7. Res,triction on trial of offences. - No Court shall proceed to the trial ·of any person for an offence against this Act except with the consent ofthe District Magistrate."

23. The learned counsel for Abdul Mateen has submitted that no consent has been granted by the Central Government. In this context, we may refer to the decision in State of MP. v. Bhupendra SiQgh 1 • In the said case, the consent for the _prosecution was granted by the Additional District Magistrate by notification dated 24.4.1995 issued by the State Government. The High Court has quashed the proceeding as there was no sanction. This Court concurred with the said view on the ground that it was within the domain of the Central G9vernmel"lt to delegate the authority and, in fact, the Central Government vide notification dated 2.12.1978 has entrusted to

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK- MISRA, J.]

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the District Magistrates in the State of Madhya· Pradesh its A consent under Section 7 of the 1908 Act. Thus, there could be delegation by the Central Government to the Di~trict Magistrates.

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24. It is relevant to note here that the consent was given by the concerned District Magistrate as Ext. P-277/278. His authority was not.questioned. What was urged before the Court was that there had been no application of mind inasmuch as the relevant materials were not placed before him while according sanction. When such a point was not raised, the consequences have to be different. In this regard, reference to C a two-Judge Bench decision in Erram Santosh Reddy and others v. State of Andhra Pradesh 2 would be appropriate. In the said case, the Court has observed as follows:

"7. The last submission is that no sanction was obtained D from the Central Government as laid down under Section 7 of the Explosive SubstancesAct for prosecuting the appellants for the offencesunder the Explosive Substances Act. From the judgment we do not find that any such objectionwas taken. In any event from the record we E findthat the Collector granted permission and this must be pursuant to the delegation of powers ascontemplated under Section 18(2) of the 'TADA'."

25. From the aforesaid, we come to the conclusion that the District Magistrate had the authority to give consent for the F prosecution.

26. The next facet of the challenge pertaining to sanction is that the sanctioning authority had not perused the relevant materials. The learned trial Judge, upon scrutiny of Ext. P-277/ G 278, has expressed the opinion that the approval had been granted after perusal of the materials on record. The High Court has observed that the consent/sanction order is a self-speaking

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(1991) 3 sec 206.

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A and detailed one. It has also been held that all the facts have been taken into consideration by the District Magistrate and the entire police diary was made available to him at the time of grantof sanction/approval. With regard to the authority of consent as postulated in the 1908 Act, reference to certain B authorities would be fruitful. In State of Tamil Nadu v. Sivarasan alias Raghu alias Sivarasa and others3 , the Court, while dealing with the effect of Section 7 of the 1908 Act, has observed as follows:

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"Section 7 does not require a sanction but onlyconsent for prosecuting a person for an offenceunder the Explosive Substances Act. The object ofusing the word "consent" instead of "sanction" inSection 7 is to have a purely subjective appreciation of the matter before giving the necessary consent."

27. Thereafter, the Court proceeded to state as follows:

"We do not think that for obtaining consent of theG(lllector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary for the investigating officer to submit the statements ofwitnesses also, who had deposed about the movements of the accused and their activity ofmanufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid."

28. In view of the aforesaid, the approval/consent granted by the District Magistrate in the obtaining factual matrix cannot be treated as vitiated.

29. The third aspect of challenge to the sanction is that the District Magistrate has not been examined as a witness to prove the order of sanction. On a perusal of the document, we find that the same has been proven by the competent person and the document has been marked as Ext. P-277/278. We

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

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are of the considered opinion that the examination of the District A Magistrate to prove his consent is really not necessary.

30. In view of the aforesaid analysis, the submission relating to the invalidity of the consent, as stipulated in Section 7 of the 1908 Act, does not commend us and, accordingly, the same stands rejected.

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31. The next issue, to which we should advert to, pertains to the delay in holding the test identification parade. The submission of Mr. Balaji Srinivasan, learned counsel appearing for accused Abdul Hamid and Raies Beg, is that there has been C enormous delay in conducting the test identification parade in _respect of accused Abdul Hamid and Raies Beg. There is no dispute that both of them were arrested on 8.6.1997 and the test identification parade was held on 25.6.1997. Thus, it is evident that they were arrested long after the occurrence but the D test identification parade was held within a period of three weeks from the date.of arrest. As the analysis of the trial court shows, they could not have been arrested as the materials could not be collected against them and things got changed at a later stage. In this regard, we may refer with profit to the decision in E Ramanand Ramnath v. State of M.P. 4 , wherein identification parade was held within a period of one month from the date of arrest. This Court observed that there was no unusual delay in holding the test identification parade.

32. That apart, the witnesses, namely Prem Prakash F

Gupta, PW-78, and Mohit Jain, PW-30, have identified them in the Court. In State of Maharashtra v. Suresh 5 , it has been held as follows:

"We remind ourselves that identification paradesare not G primarily meant for the court. They aremeant for investigation purposes. The object of conducting a test

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(1996) s sec 514. (2000) 1 sec 471.

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identification parade is twofold.First is to enable the witnesses to satisfythemselves that the prisoner whom they suspect isreally the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authoritiesthat the suspect is the real person whom the witnesses had seen in connection with the said occurrence."

33. The said legal position has been reiterated in Anil Kumar v. State of U.P. 6 Recently, in Munna Kumar Upadhyay C alias Munna Upadhyaya v. State of Andhra Pradesh through , a two-Judge

Public Prosecutor, Hyderabad, Andhra Pradesh 7 Bench has observed thus:

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"66. There was some delay in holding the identification parade. But the delay per se cannotbe fatal to the validity of holding an identificationparade, in all cases, without exception. The purpose of the identification parade is to providecorroborative evidence and is more confirmatoryin its nature. No other infirmity has been pointed out by the learned counsel appearing for the appellant, in the holding of the identification parade. The identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number ofpersons who had joined.the identification parade."

34. In view of the aforesaid, the submission that there has been delay in holding the test identification parade does not really affect the case of the prosecution. It is also noteworthy that the witnesses had identified the accused persons in court and nothing has been elicited in the cross-examination even to create a doubt. Thus, we repel the submission advanced by the learned counsel for accused Abdul Hamid and Raies Beg.

· 35. The next facet to be addressed is whether the

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CHANDRA PRAKASH v. STATE OF RAJASTHAN 851

[DIPAK MISRA, J.]

evidentiary value of the testimony of approver Pappu, PW-1, A is required to be considered. Learned counsel for the State has drawn our attention to Section 133 and illustration (b) to Section 114 of the Indian Evidence Act, 1872. They read as under: -

"133. Accomplice .-An accomplice shall be a competent witness against an accused person;and a c;pnviction is not illegal merely because the uncorroborated testimony of anaccomplice."

itproceeds upon

Illustration (b) to Section 114

"(b) The Court may presume that an accomplice isunworthy of credit, unless he is corroborated inmaterial.particulars."

36. The aforesaid two provisions came to be considered in Bhiva Dou/u Patil v. State of Maharashtra 8 wherein the Court held as follows:

'The combined effect of Sections 133 and Illustration (b) to Section 114, may be stated as follows:

According to the· former, which is a Rule oflaw, an accomplice is competent to give evidenceand according to the latter, which is a Rule of practice it is almost always unsafe to convict uponhis testimony alone. Therefore, _though the conviction of an accused on the testimony of anaccomplice cannot be said to be illegal yet thecourts will, as a matter of practice, not accept theevidence of such a witness without corroboration in material particulars."

37. In Mohd. Husain Umar Kochra etc. v. K.S.

Dalipsinghji and another etc. 9

, the Court observed thus:

" ... The combined effect of Sections 133 and 114,

8. AIR 1963 SC 599. (1969) 3 sec 429.

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Illustration (b) is that though a convicMon basedupon accomplice evidence is legal, the Court willnot accept such evidence unless it is corroboratedin material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary' that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another."

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38. Having stated the legal position with regard to the statutory provisions, presently we shall proceed to consider the requisite tests to be applied to accept the credibility of the testimony of the approver. ·At this juncture, we may sit in a time · .machine and quote a passage from Sarwan Singh Sia Rattan D 'singh v. State of Punjab 10wherein it has been held as follows:

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" ... An accomplice is undoubtedly a competentwitness under the Indian Evidence Act. There can be, however, no doubt that the very fact that hehas participated in the commission of the offenceintroduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independentevidence. It would not be right to expect that suchindependent corroboration should cover the wholeof the prosecution story or even all the materialparticulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because itis corroborated in minor particulars or incidentaldetails because, in such a case, corroboration does not afford the necessary assurance that the mainstory disclosed by the approver can be reasonablyand safely accepted as true. But it must never

H 10. AIR 1957 SC 637.

CHANDRA PRAKASH v. STATE OF _ _RAJASTHAN [DIPAK MISRA, J.]

853

beforgotten that before the court reaches the stageof A considering the question of corroboration andits adequacy or otherwise, the first initial and essential question to consider is whether even asan accomplice the approver is a reliable witness. lfthe answer to this question is against the approverthen there is an end of the matter, and no B question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidencehas to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to aH witnesses. If this test is c satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is specialto the cases of weak or tainted evidence like that of the approver.

,

8 ... Every person who is a competent witness is nota D reliable witness and the test of reliability has tobe satisfied by an approver all the more before thequestion of corroboration of his evidence is considered by criminal courts".

39.ln Ravinder Singh v. State of Haryana 11

, this Court has

observed that:

"An approver is a most unworthy friend, if at all,and he, having bargained for his immunity, mustprove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsicallyto be a natural and probable catalogue of eventsthat had taken place .... Secondly, once that hurdle is crossed, the story given by an approverso far as the accused on trial is concerned, must implicate him in such a manner as to give rise to aconclusion of guilt beyond reasonable doubt."

•

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F

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11. (1975) 3 sec 742.

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A

40. Similar principles have been reiterated in Mrinal Das

and Ors. v. State of Tripura 12

•

8

41. In A. Devendran v. State of T.N. 13

, the Court has registered the view that there cannot be any dispute with regard to the proposition that ordinarily an approver's statement has to be corroborated in material particulars. Certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accusfd from independent credible evidence and on being satisfied, the evidence of an approver can be accepted. The Court further observed that the C extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case, however, the corroboration required must be in material particulars connecting each of the accused with the offence, or in other words, the evidence of the D approver implicating several accused persons in the commission of the offence must not only be corroborated generally but also qua each accused but that does not mean that there should be independent corroboration of every particular circumstance from an independent source. The court E proceeded to state that all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and the corroboration could be both by direct or circumstantial evidence. Be it noted, the said principle was stated on the basis of pronouncements in , Tribhuvan Nath v. State of Maharashtra 15 , Sarwan Singh v. State of Punjab (supra), Ram Narain v. State of Rajasthan 16 and Ba/want Kaur v. Union Territory of Chandigarh 17

F Raman/al Mohan/al Pandya v. State of Bombay14

.

G 12. AIR 2011 SC 3753. 13. (1997) 11 sec 720. 14. AIR 1960 SC 961. 15. (1972) 3 sec 805 16. (1973) 3 sec 805.

H 17. (1988) 1 sec 1.

CHANDRA PRAKASH v. STATE OF RAJASTHAN 855

[DIPAK MISRA, J.]

, the A

42. In Chandan and another v. State of Rajasthan 18 Court held that so far as the question about the conviction based on the testimony of the accomplice is concerned, the law is settled and it is established as a rule of prudence that the conviction could only be based on the testimony of the accomplice if it is thought reliable as a whole and if it is corroborated by independent evidence either direct or circumstantial, connecting the accused.with the crime.

43. In Haroon Haji Abdulla v. State of Maharashtra 19 view in this regard was expressed in the following terms:

, the

''An accomplice is a competdnt witness and hisevidence could be accepted and a conviction based on it if there is nothing significant to rejectit as false. But the rule of prudence, ingrained inthe consideration of accomplice evidence, requiresindependent corroborative evidence first of the offence and next connecting the accused, againstwhom the accomplice evidence is used, with thecrime."

44. In Major E.G. Barsay v. State of Bombay20

, it has been observed that this Court had never intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the court shall first have to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable; but if it comes to the conclusion that it is reliable, then it will have to consider whether that evidence is corroborated by any other evidence.

B

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F

45. In Renuka Bai alias Rinku alias Ratan and another

v. State of Maharashtra21 the approv~r is always to be viewed with suspicion especially 18. (1988) 1 sec 696. 19. AIR 1968 SC 832.

, the Court held that the evidence of G

20. AIR 1961 SC 1762. 21. (2006) 7 sec 442.

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A when it is seriously suspected that he is suppressing some

material facts.

46. In Ranjeet Singh and another v. State of Rajasthan22 , the Court observed that while looking for corroboration, one must first look at the broad spectrum of the approver's version B and then find out whether there is other evidence to lend assurance to that version. The nature and extent of the corroboration may depend upon the facts of each case and the corroboration need not be of any direct evidence that the accused committed the crime. The corroboration even by

C circumstantial evidence may be sufficient.

0

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47. Keeping in view the aforesaid principles which relate to the. acceptance of the evidence of an approver, we have bestoi,.yed our anxious consideration and carefully perused the· judgment of the trial court and that of the High Court. Learned counsel for the parties have taken us through the evidence of Pappu@ Saleem, PW-1. He has clearly deposed that Abdul Mateen who is also known as Iqbal, used to visit the Madarsa at village Farah. Abdul Hameed and Abdul Mateen were seen at village Farah many times without any reason ··before the incicent. As far as Abdul Hameed and Raies Beg are concerned, he has deposed that both the accused used to go to the house of Chandra Prakash in Roopwas to collect the. "masala" in a cover box. Both of them used to meet Abdul Mateen in the Madarsa at village Farah on a number of F occasions. He used to contact Abdul Mateen from Firozabad many times and the watches fixed with bombs as timers were given at Farah by Abdul Hameed to make the bomb. It has also come out in his evidence that Pappu along with Accused Raies Beg @ Raies Ahmad and other accused persons used to visit the Madarsa at village Farah. His evidence also shows that Raies Beg and Pappu used to bring explosive from Roopwas to village Farah and he has mentioned that Raie·s Beg had brought five boxes of "masala" for Rs.10,000/-from the house

G

H 23. (1988) 1 sec 633.

CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

857

of Chandra Prakash and those boxes were unloaded at the A Madarsa in Farah. Pappu was asked to carry the boxes along with Raies Beg and Abdul Hameed. He has clearly deposed about the conspiracy that was told to him by accused Abdul Mateen. As far as Chandra Prakash is concerned, it had come in the evidence that though Pappu used to visit his house at B Roopwas along with other accused persons, yet he used to stay outside the house of Chandra Prakash and the others used to go to bring "masala" from the house of Chandra Prakash. The alleged "masala" used to be brought in boxes from time to time to the associates of Raies Beg and Abdul Hameed who used c to come to Madarsa at Farah.

48. From the analysis of the aforesaid evidence, it is clear that Pappu as approver has implicated himself in the crime. He has not made any effort to give any statement which is exculpatory. He has spoken quite graphically about the D involvement of all the accused persons. Mr. Jain, learned senior counsel appearing for the appellant, would contend that he has used the word "masala" but not ammonium nitrate, but Pappu has clarified that though he was not aware what was contained in the boxes, yet he was told by the other accused persons later E on that it contained certain explosive substances. The said aspect has been corroborated from other ocular evidence as well as the seizure.

49. Presently, we shall advert to the various facets of corroboration in evidence against the accused persons. As far F as Chandra Prakash is concerned, on the basis of the approver Chandra Prakash was arrested on 1.8.1997 vide Ext.P-37. On the basis of the information of the accused, Chandra Prakash, the Investigating Officer searched his house and godown and recovered 28 boxes of ammonium nitrate. It has come out in G the evidence that Chandra Prakash opened the lock of the godown the key of which was in his possession. Bhup Singh, PW-32, eye witness to the seizure of articles from the godown of Chandra Prakash, has categorically stated that the accused Chandra Prakash led to the recovery of red and blue coloured H

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A bundles from the godown of the building. The office of PW-32 was also· in the said building. From the godown, fuse wires and five kilo'grams of grey coloured material was also recovered. The·fnvestigating Officer, M.M. Atray, PW-71, has also proven the factum of recovery. Shivnath Kuriya, PW-22, who had B accompanied the investigating team, has deposed that the explosive which was used in the live bomb had ammonium nitrate/gelaltine. Chetan Das Rawatani, PW-34, who is an expert witness in respect of explosives, approved his report Ext. P-49 and has deposed that the ammonium nitrate that was c seized frorn~odown of Chandra Prakash was in such a

condition that it could be used to prepare a bomb .

. so. Mr. Jain, as has been stated earlier, has seriously_ criticized about the recovery from Chandra Prakash on the ground that when he led to the discovery of the articles seized, D he was not arrested. In this context, we refer with profit to the decision in Mohd. Arif alias Ashfaq v. State (NCT of Delhi) 23 wherein the Court opined thus: -

"The essence of the proof of a discovery underSection 27 of the Evidence Act is only that itshould be credibly proved · 'that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How theprosecution proved it, is to be judged by the courtbut if the court finds the fact of such information having been given by the accused in custody iscredible and acceptable even in the absence ofthe recorded statement and in pursuance of thatinformation some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon."

51. In this context, we may refer to the authority in Vikram Singh and others v. State of Punjab 24 , wherein while interpreting Section 27 of the Evidence Act, the Court opined 23. (1988) 1 sec 633. 24. (2010) 3 sec 56.

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CHANDRA PRAKASH v. 1STATE OF RAJASTHAN 859

[DIPAK MISRA, J.]

that a bare reading of the provision would reveal that a "person A must be accused of any offence" and that he must be "in the custody of a police officer" and it is not essential that such an accused must be under formal arrest.

52. In this regard, a passage from the Constitution Bench decision in State of Uttar Pradesh v. Deoman Upadhyaya 25 is reproduced below:

B

''The expression, "accused of any offence" in s. 27, as in s. 25, is also descriptive of the personconcerned, i.e., against a person who is accused of an offence, s. 27 c renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidencerelating to confessional or other statements madeby a person, whilst tie is in the custody of a policeofficer, is tainted and therefore inadmissible, if the truth of the information given by him is assured bythe discovery of a fact, it may be presumed to beuntainted and is therefore declared provable in sofar as it di&tinctly relates to the fact thereby discovered. Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the samecharacter. The ban imposed bys. 2.6 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether itamounts to a confession or not, which leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as di~tinctly relates tothe fact discovered."

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53. In Anter Singh v. State of Rajasthan 25, after referring to the decisions in Madan Singh v. State of Rajasthan 27

,

G

25. AIR 1960 SC 1125. 26. (2004) 10 sec 657. 21. (1978) 4 sec 435.

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A . Mohd. Aslam v. State of Maharashtra28

, Pulukuri Kottaya v. · Emperor9 , Prabhoo v. State of U.P. 30 and Mohd. lnayatullah , this Court summed up the following

v. State of Maharashtra31 principles:

B

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"16. The various requirements of the section can

be summed up as follows:

(1)

(2)

(3)

The fact of which evidence is sought to begiven must be relevant to the issue. It must bebome in mind that the provision has nothing todo with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to makethe fact discovered admissible.

The fact must have been discovered.

The discovery must have been in consequence of some information received fromthe accused and not by the accused's own act.

E

(4)

The person giving beaccused of any offence.

the

information must

(5). He must be in the custody of a police officer.

(6)

(7)

The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

Thereupon only that portion of the information which relates distinctly or strictlyto the fatt discovered can be proved. The rest is inadmissible."

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28. (2001) 9 sec 362. 29. AIR 1947 PC 47. H 31. (1976) 1 sec 828.

CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

861

54. In this context, it would be fruitful to refer to the ruling A

in State of Maharashtra v. Damu32 wl)erein it has been observed that:

"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is foundedon the B principle that if any fact is dis~pvered in a search .made on the strength of any information obtained from a. prisoner, such a discovery is a guarantee that the informationsupplied by the prisoner is true. The informationmight be confessional or non-inculpatory in C nature, but if it results in discovery of a fact itbecomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the

· admissibleportion to the minimum."

55. In Aftab Ahmad Anasari v. State of Uttarancha/33, after D

referring to earlier decisions, a two-Judge Bench, appreciating the material brought on· record, came to hold that when the accused was ready to show the place where he had concealed . the clothes of the deceased, the same was clearly admissible

under Section 27 of the Evidence Act because the same related E distinctly to the discovery of the clothes of the deceased from that very place.

56. In Bhagwan Dass v. State (NCT of Delhi}34

, relying on the decisions in Aftab Ahmad Anasari (supra) and Manu Sharma v. State (NCT of Delhi)35 , the Court opined that when the accused had given a statement that related to the discovery of an electric wire by which the crime was committed, the said disclosure statement was admissible as evidence.

F

57. As the material brought on record would show, the G

accused was in the custody of the investigating agency and the

32. c2000) 6 sec 269. 33. c2010) 2 sec 583 34. c2011) 6 sec 396. 35. c201 O) 6 sec 1.

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A

fact whether he was formally arrested or not will not vitiate the factum of leading to discovery. However, it may be stated tha~ the accused was also arrested on that day. We have dealt with the issue that formal arrest is not necessary as Mr. Jain has seriously contended that the arrest was done after the recovery. B As we have clarified the position in law, the same would not

make any difference. ·

D

58. As regards recovery from accused Abdul Mateen is concerned, it is borne out from the record that after his arrest C on 28.6.1997, he gave information at 6.00 a.m. as contained in Ext. P-255, about another bomb and on the basis of the said information the Investigating Officer, PW-71, visited the spot along with the accused and at his instance a live bomb was recovered which was underneath the earth. In the said information the accused had stated that the two bombs were inside the SMS Stadium and he could verify the places by going inside the stadium. In the evidence of Jai Narain, PW-6, Gopal Singh, PW-7 c;1r:id Shivnath, PW-22, it has come on record that the bombs were recovered at the instance of accused Abdul Mateen on 28.6.1998. This fact has been E corroborated by Vinod Sharma, PW-16 and Gordhan, PW-10 who also accompanied the investigating team. Shivnath, PW- 22, had clearly stated that the bomb recovered was high explosive time bomb and the battery was inside the timer and the same was switched on and he further confirmed that electric F detonator was used in the bomb. Vinod Kumar, PW-16, also stated that the electric detonator was found in the bomb and the same was neutralized. Suresh Kumar Saini, PW-67, in his deposition, gave description of loss caused due to the explosion of the time bomb. He had further deposed that lid of G stainless steel of casio watch had been recovered from the

scene of crime.

59. On appreciating the aforesaid material, it is clear as crystal that the said accused has stated about the fact of planting of bomb at a particular site in the stadium and led to

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

863

the said place from which the bomb was recovered. The A submission of Mr. Jain is that such material cannot be put against the accused being inadmissible in evidence. In this context. we may refer to a two-Judge Bench decision in Prakash Chand v. State (Delhi Administration)36 wherein the Court, after referring to the decision in Himachal Pradesh B Administration v. Om Prakash37

, opined thus:

"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 anyfact in issue or relevant f~t C and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of theCriminal Procedure Code. What is excluded by Section 162; Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the D evidence, relating to theconduct of an accused perso11 (not amounting to astatement) when confronted or questioned by aPolice Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused personled a Police Officer and pointed E out the place where stolen articles or weapons which mighthave 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 F' antecedent tosuch conduct falls within the purview of Section 27of the Evidence Act."

60. The said principle has been reiterated in A.N.

Venkatesh and another v. State of Karnataka 38

•

61. Tested on the touchstone of the aforesaid enunciation of law, the submission of Mr. Jain leaves us unimpressed and 36. (1979) 3 sec 90. 37. {1972) 1 sec 249. 38. (2005) 7 sec 714.

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A we are inclined to hold that the said fact is a relevant fact which

is admissible in evidence.

8

c

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62. The next aspect that is to be adverted to is that ammonium nitrate not being an explosive substance, mere possession cannot bring the accused Chandra Prakash within the ambit of any offence. In this regard, we may refer to Section 4( d) of the 1884 Act. It reads as follows:

"(d) "explosive" means gunpowder, nitroglycerine, nitroglycol, guncotton, di-nitre-toluene, tri-nitro-toluene, picric acid, di-nitre-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-trimethylene-tri-nitramine, penta-erythritol tetranitrate, tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate of mercury or anyother metal, diazo di-nitro-phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufacturedwith a view to produce a practical effect byexplosion or pyrotechnic effect; and includes fog-signals, fireworks, fuses, rockets, percussion-caps,detonators, cartridges, ammunition of all descriptions and every adaptation or preparationof an explosive as defined in this clause;"

63. Section 2 of the 1908 Act, which deals with definitions,

reads as follows:

F

"2. Definitions. -In this Act--

(a)

the expression "explosive substance" shall bedeemed to include any materials for makingany explo~ive substance; also any apparatus.machine, implement or material used, or intended to be used, or adapted for causing.or aiding in causing, any explosion in or withany explosive substance; also any part of anysuch apparatus, machine or implement;

(b)

the expression "special category explosive ·

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

865

substance" shall be deemed to include research A development explosive (ROX), pentaerythritol tetra nitrate (PETN), high meltingexplosive (HMX), tri nitro toluene (TNT), low temperature plastic explosive (LTPE),composition exploding (CE) (2, ~. 6 phenylmethyl nitramine or tetryl), OCTOL B (mixlureof high melting explosive and tri nitro toluene), plastic explosive kirkee-1 (PEK-1) an~ ROX/TNT compounds and other similartype of explosives and a combination thereofand remote control devices causing explosionand any other c substance and a combinationthereof which the Central Government may,by notification in the Official Gazette, specifytor the purposes of this Act."

64. Keeping in view the broad definitions of both the Acts, we l\"e required to see what has been seized from the accused D Chandra Prakash. What is evincible from the seizure report, Ext. P-42, apart from ammonium nitrate, fuse wire and empty boxes were also seized. That apart, 17 packs containing blue coloured fuse wire kept in plastic (polythene) bags and \four boxes containing blue coloured fuse wire, "Sun brand safety E fuse" numbered as 40208, 40158, 39937, 40203 respectively, one carton of explosives detonating fuse measuring 1500 meters in length and 38 kg in weight, containing four wooden logs of red colour, 375 meter wire in each Gattha and black coloured cap fitted on the tip of the wire, three cartons of F explosive Belgelative 90 (Gulla Dynamite) net weight of each being 25 Kg. with "Division I Class II safety distance category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.) Date of manufacturing 4.6.97 batch No. 2" written on each box, four packets of O.D. Detonator containing 1600 detonators, a G substance of light yellow colour kept inside a carton of paer in a plastic bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15 of fus'e wire, were seized.

65. Section 2 of the 1908 Act has a deeming provision

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A which states that explosive substance would include any materials for making any explosive substance. Similarly, Section 4(d) of the 1884 Act has a broader spectrum which includes coloured fires or any other substances, whether single chemical compound or a mixture of substances. That apart, as B we find, apart from ammonium nitrate other articles had been seized. The combination of the same, as per the evidence of the expert witness, was sufficient to prepare a bomb for the purpose of explosion. In addition to the same, huge quantity of ammonium nitrate was seized and it was seized along with C other items. The cumulative effect is that the possession of these articles in such a large quantity by the accused gives credence to the prosecution version that the possession was conscious and it was intended to be used for the purpose of the blast.

o

66. The next aspect which needs to be adverted to is non- framing of specific charge. On a perusal of the record, we find that the learned trial Judge has framed the charges specifically by putting the charges to the accused. The purpose of framing of charges is that the accused should be informed with certainty . E and accuracy of the charge brought against him. There should not be vagueness. The accused must know the scope and particulars in detail. In this context, we may refer to decision in SantbsJJ Kumari v. State of Jammu and Kashmir and others39 wherein ltha~?een held as follows:

.

,

laws,

"17. Like all procedural the Code of CriminalProcedure is devised to subserve the ends ofjustice and not to frustrate them by meretechnicalities. It regards some of its provisions asvital but others not, and a breach of the latter is acurable irregularity unless the accused isprejudiced thereby. It places errors in the charge.or even a total absence of a charge in the curableclass. That is why we have provisions like Sections215 and 464 in the Code of Criminal Procedure, 1973.

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CHANDRA PRAKASH v. STATE OF RAJASTHAN [DIPAK MISRA, J.]

867

'A

18. The object of the charge is to give the accusednotice of the matter he is charged with and doesnot touch jurisdiction. If, therefore, the necessaryinformation is conveyed to him in other ways andthere is no prejudice, the framing of the charge isnot invalidated. _The essential part of this part oflaw is not any technical formula of words B but thereality, whether the matter was explained to theaccused and whether he understood what he wasbeing tried for. Sections 34, 114 and 149 IPCprovide for criminal -liability viewed from differentangles as regards actual participants, accessoriesand men actuated by a common c object or acommon intention; and as explained by a five Judge Constitution Bench of this Court in Willie(William) Slar;iey v. State of M.P.40 SCR at p. 1189,the charge is a rolled-up one involving the directliability and the constructive liability withoutspecifying who are directly 0 liable and who aresought to be made constructively liable."

67. In K. Prema S. Rao v. Yadla Srinivasa Rao41 , the Court opined that though the charge specifically under Section 306 IPC was not framed, yet all the ingredients constituting the offence were mentioned in the statement of charges. In that E context, a three-Judge Bench of this Court ruled that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The said principle has been reiterated in Dalbir Singh v. State of F U. P. 42 Sambasiva Reddy v. State of A.P. 44

, State of U. P. v. Paras Nath Singh 43 and Annareddy

.

68. In the case at hand, as has been stated earlier, the

39. c2011 l 9 sec 234. 40. AIR 1956 SC 116. 41. c2003) 1 sec 211. 42. c2004) 5 sec 334. 43. c2009) 6 sec 372. 44. c2009) 12 sec 546.

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charges have been framed and we do not find any vagueness. That apart, neither any prejudice has been caused nor has there been any failure of justice. Thus, the submission of Mr. Jain in this regard leaves us unimpressed.

69. The next facet which deserves to be addressed pertains to the criminal conspiracy. The submission of the learned counsel for the appellants is that the learned trial Judge has inappositely drawn certain tnferences to show that there was a criminal conspiracy and the High Court has, without delving deep into the matter, concurred with the same. As per the evidence brought on record, it is clear as crystal that accused Abdul Mateen, Abdul Hamid and Raies Beg used to meet quite frequently at the Madarsa at village Farah. It is also evident from the deposition of Kanchan Singh, PW- . ~1. Shri Chand, PW-12, Murari Lal Sharma, PW-13, and Ashok Kumar, PW-17, that the accused Abdul Mateen, Raies Beg and Abdul Hamid used to meet at the Madarsa at village Farah. That apart, Pappu had also deposed implicating himself that when there used to be discussion at madarsa in the_ village Farah about the suitable place for planting the bomb, the timer of the bomb was supplied by Dr. Abdul Hamid. The chain of events and the participation of the accused persons which had the genesis in the discussion and the meetings, the purchase of ammonium nitrate and other items, carrying of the boxes tq the Madarsa and all other factors cumulatively show that there was conspiracy.

70. While dealing with the facet of criminal conspiracy, it has to be kept in mind that in case of a conspiracy, there cannot be any direct evidence. Express agreement between the parties cannot be proved. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the criminal conspiracy. In this context, we may refer with profit to a passage

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CHANDRA PRAKASH v. STATE OF RAJASTHAN 869

[DIPAK MISRA, J.)

from Yogesh alias Sachin Jagdish Joshi -v. State of A Maharashtra45

:

"20. The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done.either (a) an illegal act; or (b) an act which is not B illegal in itself but is done by illegal means. It is, therefore, plainthat meeting of minds of two or more persons fQrdoing or causing to be done an illegal act or an actby illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi v. State of C Maharashtra46 a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if o suchinference is possible."

71. The same principles have been stated in Pratapbhai

Hamirbhai Solanki v. State of Gujarat and another47

.

72. In Yakub Abdul Razak Menon v. The State of E

Maharashtra, through CBI, Bombay48 pronouncements, this Court opined thus: -

, analyzing various

"68. For an offence Under Section 120B Indian Penal Code, the prosecution need not necessarilyprove that the conspirators expressly agreed to door cause to be done the F illegal act, the agreementmay be proved by necessary implication. It is notnecessary that each member of the conspiracymust know all the details of the conspiracy. The offence can be proved largely from the inferencesdrawn from the acts or illegal omission committedby the G conspirators in pursuance of a common design. Being a

45. c2008) 10 sec 394. 46. (1980) 2 sec 465. 47. c2013) 1 sec 613. 48. (1980) 2 sec 465.

H

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A

B

c

D

,E

F

G

continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory, the conspiratorscontinuing to be the parties to the conspiracy andsince part of the acts were done in India, theywould obviate the need to obtain the sanction of the Central Government. All of them need not be present in India nor continue to remain in India.The entire agreement must be viewed as a wholeand it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. (Vide: R.K. Dalmia v. Delhi Administration49 , Lennart Schussler and Anr. v. Director of Enforcement and Anr. 50 , Shivanarayan Laxminarayan Joshi v. State of Maharashtra and Mohammad Usman Mohammad Hussain Maniyar and Anr. v. State of Maharashtra 51)."

·

73. Testing the present factual matrix on the anvil of the aforesaid enunciation of law, we are of the considered view that the opinion expressed by the learned trial Judge as well as by the High Court that there has been conspiracy between the parties tq commit the blast on a particular day cannot be found faultwith.

74. Presently, we shall engage ourselves to deal with the conviction of accused Abdul Mateen for the offence under 14 of the Foreigners Act, 1946. The said provision reads as under:

"14. Penalty for contravention of provisionsof the Act, etc. -whoever -

(a) Remains in any area in India for a periodexceeding the period for which the visa wasissued to him;

(b)

does any act in violation of the conditions ofthe valid visa issued to him from his entry andstay in India or any part thereunder;

- - - - - - 49. AIR 1962 SC 1821. 50. (1970) 1 sec 152. H 51. AIR 1981 SC 1062

CHANDRA PRAKASH v. STATE OF RAJASTHAN · . [DIPAK MISRA, J~] .

-

871

( c)

contravenes the provisions of this Act or ofany order A made thereunder or any directiongiven in pursuance · of this Act or such order forwhich no specific punishment is provided underthis Act, shall be punished with· imprisonmentfor a term which may extend to five years andshall also be liable to fine; s and if he has enteredinto a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall beforfeited, and any person bound thereby shallpay the penalty thereof or show cause to thesatisfaction of the convicting court why c suchpenalty should not be paid by him.

Explanation. - For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport(Entry into India) ~ules, 1950 made under thePassport (Entry into D India) Act, 1920 (34of1920)."

75. The learned trial Judge, analyzing the material on record, has 1come to hold that the said Abdul Mateen is a resident of Pakistan and he had no valid document to be in India. In his statement under Section 313 of the Code, he had not disputed E that he was not having passport or visa and he is of Pakistan nationality. Thus, the offence under the said Act has been held to be proved. The High Court has concurred with the said view. In our considered opinion, the offence under the said Act has· been proved beyond reasonable doubt.

F

76. In view of the aforesaid analysis, we conclude and hold that the grounds assailing the judgment of conviction and thf order of sentence have no legal substantiality and, accordingly, they are rejected.

77. The factual scenario of the instant case compels usl to G

state that these kinds of activities by anyone breeds lawlessness, fear and affects the fundamental unity of our great country. A ; nation with a desire to prosper is required to maintain high . degree of law and order situation apart from respecting... ·"imperatives of internationalism". Certain individuals harbouring H

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A unacceptabl.e notions and inexcusable philosophy and, on certain occasions, because of enormous avarice, try to jeopardize the cohesive and collegial fabric of the State. This leads to national decay and gives rise to incomprehensible anarchy. It reflects non-reverence for humanity. Be it categorically B stated, every citiz.en of this country is required to remember that national patriotism is founded on the philosophy of public good. Love for one's country and humanity at large are eternally cherished values. The infamous acts of the appellants are really condemnable not only because of the dent they intended to c create in the social peace and sovereignty of.the nation, but also from the humane point of view as they are founded on greed, eri'qy, baseless anger, pride, prejudice and perverse feelings towards mankind.

78. We have, in agony and anguish, have expressed thus o because when a devastating activity like the present one occurs on the Republic Day of our country Bharat, it injures the nationality, disturbs the equilibrium of each individual citizen, creates a concavity in the equanimity of the peace of the State, generates a·stir in the sanctity and divinity of law and order E situation which is ·paramount in any civilized State, attempts to . · · endangerthe economic sgrowth of a country and, in the ultimate eventuate, destroys the conceptual normalcy of, any habitat. Law cannot remain silent to this because it is the duty of law to resist such attacks on peace. It is manifest that the accused-appellants F had conspired to send a savage stir among the citizenry of this country on the Republic Day. The great country like ours cannot succumb to tbis kind of terrorist activity as it is nationally as well as internationally obnoxious. Such tolerance would tantamount to acceptance of defeat. The iron hands of law has to fall and in the obtaining facts and circumstances, as the charges have been G proved beyond reasonable doubt, the law has rightly visited the

appellants and, accordingly, we concur with the same.

79. Consequently, all the appeals, being bereft of merit,

stand dismissed.

, H Devika Gujral

Appeals dismisse~.·