11 February 2013, 06:10 PM IST
It's shocking to see how a section of the media and leaders with suspicious ideologies are trying to divide India on communal lines, opposing the law taking its course. It's time we closed ranks and rose above party lines to support the Supreme Court's judgment executed by a government we love to oppose every day on many other issues. There are mediapersons who in the garb of being journalists are trying to instigate people quoting some mysterious Tihar officials. As if Afzal was an Anna Hazare worker, trying to fight corruption or he was a devoted innocent soul and all the security agencies plotted against him, implicated him falsely with the connivance of the highest court. Is that they want us to believe?
They must be exposed and shown the Constitution, which prohibits any move to fan communally hateful passions and divide people on sectarian lines. Espousing the cause of Afzal and creating an atmosphere to support him is acting against Indian forces and the tricolour tormenting the spirit of the Constitution. Democratic freedom shouldn't be used to malign the nation's constitutional authorities and turn traitors into martyrs, who attacked India and the highest temple of democracy in brazen way, remained unrepentant and were given so much of a fair trial that two of their accomplices were freed. This fact is omitted and ignored. But the voices of the traitors that shout against the justice and the law of the land are being projected as the 'fair trial demands'. What a travesty of truth they are indulging in.
We must try to see the Supreme Court's observations on the case of Afzal, whom they tried to give the best of a fair trial. I must quote the relevant part of that historic judgement , even if it seems to be a bit long, so that readers can judge the real depths of Afzal's involvement in the crime against nation.
( CASE NO.:Appeal (crl.) 373-375 of 2004 PETITIONER: STATE (N.C.T. OF DELHI)- RESPONDENT:NAVJOT SANDHU@ AFSAN GURU DATE OF JUDGMENT: 04/08/2005 BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR)
Circumstances against Afzal
We shall now consider the circumstantial evidence against Afzal independent of and irrespective of the confession.
The first circumstance is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. PW76 (Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady Harding Medical College and he identified the five terrorists and gave their names. Accordingly, PW76 prepared an identification memo\027Ext.PW76/1 which was signed by Afzal. In the postmortem reports pertaining to each of the deceased terrorists, Afzal signed against the column 'identified by'. On this aspect, the evidence of PW76 remained un-shattered. In the course of his examination under Section 313, Afzal merely stated that he was forced to identify by the police. There was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo. It may be recalled that all the accused, through their counsel, agreed for admission of the postmortem reports without formal proof. Identification by a person in custody of another does not amount to making a statement falling within the embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of Evidence Act as a piece of evidence relating to conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal(http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 107) Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the EvidenceAct (vide Himachal Pradesh Administration Vs. Om Prakash [AIR 1972 SC 975]). The second circumstance is the frequent telephonic contacts which Afjal had established with Mohammed. Even minutes before the attack, as many as three calls were made by Mohammed to Afzal from his phone No. 9810693456 which was operated with the instrument having IMEI No. 35066834011740(2) that was recovered from Mohammed's body, as seen from Ext. PW 35/2. The SIM Card relating thereto was also found in Mohammed's purse. Not only that, there is clear evidence to the effect that the mobile instruments were being freely exchanged between Afzal and Mohammed and other terrorists. This is the third circumstance.
Before going into the details on these aspects, it may be noted that the handset found in the truck in which Afzal was travelling and which he pointed out to the police was having IMEI No. 350102209452430. It was a mobile phone instrument of Nokia make and it was being used for the operation of phone No. 9811489429. It is Ext.P-84. The evidence as to recovery was furnished by PW61 and PW62. Its IMEI number and the cell phone number with which it was being operated is established by the evidence of investigating officer coupled with the call records filed by the witnesses. It is also clear from the call record that it was the last instrument on which the said number \00589429 had been operated as late as 13.12.2001.
The fact that the instrument bearing number \005\005\00552430 was being carried by Afzal in the truck would give rise to a reasonable inference that the cell-phone number with which the instrument was being operated was that of Afzal and the said phone number was under his use. The appellant, Afzal, apart from denying the recovery at Srinagar\027which denial cannot be said to be true, did not account for the custody of the phone. The said phone number cannot be related to Shaukat who was also travelling with Afzal because Shaukat was having his own phones which were seized from his residence on 15th December. In the circumstances, even a presumption under Section 114 can be drawn that the number 9811489429 was at all material times being used by the accused, Afzal.
The facts that the SIM card was not found in the mobile phone and that the IMEI number of the instrument was not noted by PW 61 cannot be the grounds to disconnect Afzal from the custody of the said phone. The IMEI number found on the phone was sent to trace the number of the cell phone. One more point has to be clarified. In the seizure memo (Ext. 61/4), the IMEI number of Nokia phone found in the truck was noted as \005\00552432. That means the last digit '2' varies from the call records wherein it was noted as \005\00552430. Thus, there is a seeming discrepancy as far as the last digit is concerned. This discrepancy stands explained by the evidence of PW 78 \026 a computer Engineer working as Manager, Siemens. He stated, while giving various details of the 15 digits, that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as '0'. The witness was not cross-examined.
This mobile number ..89429 was also used in the instrument No. IMEI 449269219639010 recovered from the deceased terrorist Raja and was then used in the handset having number 50102209452430(2) i.e. the instrument recovered from the truck at Srinagar, as pointed out by the High Court at paragraph 325 of the judgment. The instrument recovered from Raja was the one used by Afzal i.e. on phone No.\00589429 between 6.11.2001 and 23.11.2001. The mobile instrument recovered from Rana (IMEI 449269405808650) (Cell phone No.9810302438) was used by Mohammed who in turn was using the phone of Afzal also. This was the phone that was purchased by Afzal from PW49\027Kamal Kishore.
Now, we shall proceed to give further details of the phone calls and the instruments used, more or less in a chronological order insofar as they throw light on the close association of Afzal with the deceased terrorists. The SIM Cards related to the mobile phones bearing Nos. 9810693456 and 9810565284 were recovered from the purse of the deceased terrorist Mohammed. The first call from the first number was from Mohammed to a Delhi landline number on 21.11.2001. The first call to the second number was from Bombay on 24.11.2001. It shows that these two phones were activated by Mohammed in the third week of November, 2001 when he was in Delhi. It is established from the call records that the second call from the Bombay number to Mohammed was received when the said mobile number (9810565284) was being used in the handset having IMEI No. 449269219639010(2). This is the same handset which was used by Afzal with his phone number 9811489429 (vide Ext.P36/3). Thus, it is clear that on 24.11.2001, Mohammed was in control of the handset which was being used by Afzal which reveals the nexus between both.
Evidence of the computer experts PWs 72 & 73 together with their reports (Ext.PW73/1 & 73/2) would reveal that a file named Radhika.bmp was created on the laptop (Ext.P83) on 21.11.2001 wherein an identity card in the name of Sanjay Sharma is found and it contains the address No.10, Christian Colony, where Mohammed was staying and the phone No. 9811489429 (belonging to Afzal). The other I.Cards recovered from the body of the deceased terrorist which were fake ones, were also prepared from the same laptop as established by the testimony of PW72 and PW59. Thus, together with the activation of phones, simultaneous activity on the laptop to create bogus I.Cards was going on at the same time i.e. 21.11.2001 onwards. On 28.11.2001, Afzal, having phone No. 9811489429 called Mohammed to his No. 9810693456. Then there was a lull from 30.11.2001 till 6.12.2001.
This gap is explained by the prosecution by referring to the confessional statement of Afzal wherein he said that towards the end of November, he (Afzal) went to Kashmir and came back to Delhi along with two other terrorists in the first week of December. But as the confessional statement is not taken into account, we cannot take note of that explanation. On 5th December, 2001, Mohammed called two Dubai numbers from his mobile phone No. 9810565284 and the call record\027Ext.PW35/4 would show that Mohammed made those calls to Dubai by using the same handset which was being used by Afzal for his number 9811489429. PW49, who identified Afzal in the Court, testified to the fact that Afzal had purchased Motorola mobile phone of model 180 from his shop on 4.12.2001 which tallies with the description of the phone bearing the IMEI number referred to above. The next point to be noted is that the said phone instrument bearing IMEI No. \005\00539010 was finally recovered from the deceased terrorist Raja as per the seizure memo (Ext.PW2/2). A perusal of the call record discloses that the said instrument was being used by the accused Afzal (with his number ...89429) till the noon of 12.12.2001. It shows that such interchange of phones would not have been possible, but for the meeting of the Afzal with the slain terrorists on 12th December. There were calls to the mobile number 9810693456 the SIM Card of which was recovered from the body of Mohammed vide Ext.PW4/8 and which was being operated from the instrument IMEI No. 449269405808650 (Ext.PW35/5). On 7th & 8th December, Afzal called Mohammed seven times from his phone No. 9811489429 to Mohammed's No. 9810693456 and the said mobile of Mohammed was being used in IMEI No. \005808650 (Ext.PW35/5). Thus Mohammed used the same Motorola phone (Ext.P28) which was finally recovered from the deceased Raja vide seizure memo (Ext.PW2/2) on the SIM card (described as Magic Card) for the No.
9810693456 and the said card was recovered from Mohammed vide Ext.PW4/8. As per the testimony of PW49, the said Ext.P28 was purchased by Afzal. It is pertinent to note that the said instrument was never used by Afzal though it was purchased by him but it was being used by Mohammed and it ultimately reached Raja. The deposition of PW44 discloses that Afzal, who was identified by him in the Court, came to his shop on 7th or 8th December and purchased a mobile phone of J70 model of Sony make which he identified as Ext.P-37 seized under Ext.PW4/14 from the body of Mohammed. Its IMEI number was 35066834011747/2 and its cell-phone number was found to be 9810511085.
This fact would only lead to the inference that contemporaneous to the crucial incident of 13th December, Afzal met Mohammed and supplied the handset of the mobile phone. That apart, we find the exchange of calls between them.
From the call records in Parts VI & IX, it is evident that Afzal was in touch with Mohammed over phone on seven occasions on 7th and 8th December and they were using the two phones with the Cell numbers referred to supra, though, two or three calls of them were of very short duration. It may also be noticed that a satellite phone contacted Afzal for a short-while on his number 9811489429 and the same satellite phone contacted Mohammed on his phone No. 9810693456 on 10th December for five minutes. On 12th December, Mohammed contacted Raja for 83 seconds and thereafter a satellite phone contacted Mohammed for 11 minutes and the same satellite phone contacted Raja twice for about 3 minutes. This is borne out by call records at volume VI. The phone number of Raja was 9810510816 as discovered from the phone instrument recovered from his body.
Then we come to the crucial day i.e. 13.12.2001. Mohammed called Afzal thrice at 10.43, 11.08 and 11.25 a.m., i.e. just before the attack on the Parliament. This is borne out by the call records of 9810693456 and 9811489429 (phones traceable to Mohammed and Afzal, respectively). At about the same time, there was exchange of calls between Afzal and Shaukat on their phone numbers .\005.89429 and \005\005.73506. The call records at Part IX, Page 20 pertaining to 9811489429\027the user of which can be traced to Afzal and the instruments recovered would reveal that the SIM Card pertaining to the said mobile number (\00589429) was activated on 6th November and was used on the handset bearing IMEI No. 449269219639010 recovered from the deceased terrorist Raja as per Ex. PW2/2. The call record would further show that its user was discontinued on 29th November till 7th December, when, again, it was put to use on 12th December. The last call was at 12 noon.
Thereafter, the SIM Card pertaining to this number (i.e. \005.89429) was used in the handset No. 350102209452430, which is the instrument (Ext.P84) recovered from the truck at Srinagar, on being pointed out by Afzal. The picture that emerges is this: The fact that an instrument used by Afzal (with the phone number 9811489429) till 12.12.2001 was recovered from one of the deceased terrorists on the date of incident, reveals that Afzal would have necessarily met the deceased terrorist between the afternoon of 12th December and the morning of 13th December.
One point urged by Shri Sushil Kumar is that although the sanction order authorized the interception of Phone No. \005..06722, there is no evidence regarding the details of investigation of the calls made or received from that number. No question was put to the witnesses on this point. It is quite probable that the investigator would have entertained some suspicion in this regard and would have, by way of caution sought permission to intercept. That does not cast a cloud on the prosecution case built up on the basis of the call records pertaining to the phones used by the accused. We can draw no adverse inference from the fact that the details of aforementioned number was not given.
(vi) Hideouts and recoveries The other circumstances which prominently shed light on the involvement of the accused Afzal relate to the discovery of the abodes or hideouts of the deceased terrorists and the recovery of various incriminating articles there from as well as the identification of certain shops from where the appellant and one or the other deceased terrorist purchased various items used for preparation of explosives etc. These are spoken to by PW76\027Inspector Gill, the landlords of the concerned premises and the shopkeepers. The informations furnished to the Investigating Officers leading to the discovery of facts and the conduct of the accused in pointing out the places where the terrorists stayed are admissible either under Section 27 or Section 8 of the Evidence Act and they supplement the evidence furnished by the I.Os., the landlords and the shopkeepers.
............ IN THE RESULT, we dismiss the appeal filed by Mohd. Afzal and the death sentence imposed upon him is hereby confirmed.
Despite such an elaborate judgment, there are people who doubt the intentions of the court they are either feigning ignorance or are smartly foolish to think they can deceive the masses. They don't speak when the security personnel face the barbaric jihadis and become martyrs, they keep a silence when the anti-national elements speak against the Indian armed forces and malign them, they wear a garb of false secularism when the Hindu men and women are tortured, killed, raped and forced to leave their generations old home and hearth. When the songs and the traditions and the language of an entire community is being eliminated and their children find no one to share their dreams, they look the other way. But they get vocal and become champions of some freedom when the assaulters on the Indian triclour and people are punished. Why? Do they belong to India or some other planet?
This time the nation's conscience should be raised to show a national solidarity of the patriotic people and let the elements inimical to the national security and integrity be defeated once again.
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