IN THE HIGH COURT OF DELHI AT NEW DELHI
DEATH REFERENCE NO. 5/2004
Judgment reserved on : July 19,2006
04.08.2006
Date of Decision : August 4,2006
THE STATE
Through Mr.Ravinder Chadha, APP
versus
MOHD. HUSSAIN
Through Mr. Sidharth Luthra with Mr. Mohd. Mobin Akhtar, Advocate
WITH
CRIMINAL APPEAL NO. 41/2005
MOHD. HUSSAIN @ JULFIKAR ALI ?Appellant
Through Mr. Mohd. Mobin Akhtar, Advocate
Versus
THE STATE ?Respondent
Through Mr. Ravinder Chadha, APP with Mr. Jagdish Prasad, Advocate
CORAM:
HON'BLE MR. JUSTICE R.S. SODHI
HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to
see the judgment? (YES)
2. To be referred to the reporter or not? (YES)
3. Whether the judgment should be reported in the Digest? (YES)
P.K. BHASIN J.
Conviction of one Md. Hussain @ Julfikar Ali @ Abdul Rauf s/o Nazir Ahmed
for the offences under Sections 302/307 IPC and Section 3 of the Explosive
Substances Act, 1908 vide judgment dated 26-10-04 and imposition of death
sentence upon him vide order dated 3-11-2004 passed by the Additional Sessions
Judge, Delhi in sessions case no. 122/98 has led to the making of a reference to
this court by the trial court for confirmation of the sentence of death and
filing of an appeal by the above named convicted accused.
2. The case of the prosecution as culled out from the trial court record
is as follows:
On 30-12-1997 at about 6.20 p.m. one blueline bus no. DL-1P-3088 carrying
passengers on its route to Nangloi from Ajmeri Gate stopped at the Ram Pura bus
stand on Rohtak Road for passengers to get down. The moment that bus stopped
there an explosion took place inside the bus because of which its floor got
ripped apart. Four passengers of that bus, namely, Ms. Tapoti, Taj Mohd.,
Narain Jha and Rajiv Verma died and twenty four passengers including the
conductor of that bus were injured due to that explosion. Two policemen(PWs 41
and 52) were on checking duty at that bus stop at the time of blast. On their
informing the local police station police team reached the spot. Crime team
and bomb disposal squad were also called and the damaged bus was inspected and
from the spot debris etc. were lifted and sealed.
3. On the basis of the statement of Head Constable Suresh(PW-41), who was
one of the two policemen on duty at the bus stop of Rampura, a case under
Section 307 IPC and Sections 3,4 and 5 of the Explosive Substances Act was
registered at Punjabi Bagh police station. Investigation commenced
immediately. With the death of some of the injured persons on the day of the
incident itself Section 302 IPC was also added. Hunt for the culprits
responsible for that macabre incident also started. However, for over two
months nobody could be nabbed.
4. It appears that as a result of different incidents of bomb blasts in
Delhi including the present one the intelligence agencies became more active and
started gathering information about the incidents of bomb blasts in the city.
It came to light that some persons belonging to terrorist organizations were
actively operating in the city of Delhi for causing terror by killing innocent
people and causing damage to public property by exploding bombs. On the basis
of secret information the police raided some houses in different parts of Delhi
on 27-02-98 and from those houses hand grenades and material used for making
bombs was recovered in large quantity. The chemicals recovered were sent to
CFSL which confirmed that the same were potassium chlorate and sulphuric acid
and were opined to be constituents of low explosives. Some persons were arrested
also and during interrogation they had disclosed to the police that they were
members of a terrorist organization and their aim was to create terror and panic
in different parts of the country by exploding bombs to take revenge for the
killings of innocent muslims in India and further that they had come to India
for Jehad. On 27-02-98 itself the police had registered a case vide FIR No. 49
of 1998 under Sections 121/121-A IPC and Sections 3,4 and 5 of the Explosive
Substances Act as well as under Section 25 of the Arms Act at Main Delhi Railway
Station. On the basis of information provided by the apprehended terrorists the
police made more arrests including that of one Mohd. Hussain(who now is the
appellant before us in Crl. A. No. 41 of 2005 and reference to him will now
onwards be made as ?the appellant?). The appellant was apprehended when his
house in Lajpat Nagar was raided pursuant to the information given by other
apprehended terrorists. As per the prosecution case the appellant himself had
opened the door on being knocked by the police and on seeing the police party he
had tried to fire at the policemen from the pistol which he was having in his
hand at that time but could not succeed and was apprehended. His pistol was
seized. It appears that during the interrogation by the police the appellant
and three more persons, namely, Abdul Rehman, Mohd. Ezaz Ahmed and Mohd. Maqsood
confessed about their involvement in the present incident of bomb blast in the
bus on 30.12.1997. That information was then passed over to Punjabi Bagh police
station on 18.3.1998 by the Crime Branch and accordingly all these four persons
were formally arrested for the present case also on 21.3.1998 for which date the
investigating officer of the preset case had sought their production in court by
getting issued production warrants from the court seized of the above referred
case of FIR No.49/1998. The investigating officer moved an application before
the concerned court on the same day for holding of Test Identification Parade
(TIP) in respect of the appellant in view of the suspicion expressed by PW-1
Darshan Kumar, the conductor of the bus involved in the blast regarding one
passenger who had boarded his bus from Paharganj bus stop along with a rexine
bag for going to Nangloi but instead of going upto Nangloi he had got down from
the bus at Karol Bagh leaving his rexine bag underneath the seat which he had
taken and which was near the seat of the conductor. The conductor had given the
description of that passenger. As per the prosecution case the explosion had
taken place below that seat which that passenger had occupied and underneath
which he had kept his rexine bag. Although on 21-03-98 the appellant did not
object to holding of identification parade but he refused to join test
identification parade which was fixed for 23-03-98 stating that police had taken
his photographs.
5. During the investigation of the present case the debris collected from
the place of bomb blast and some damaged pieces of the bus etc. were sent to
Central Forensic Scientific Laboratory(CFSL) and after examination it was
revealed that in the seized material contained explosive mixture of chlorate,
Nitrate, Sulphate and sugar were detected. Mixture of these chemicals, as per
CFSL report Ex. PW-34/A, is used for making explosives/bombs and the mixture
could have been initiated by the action of sulphuric acid and the mixture was
?explosive substance?.
6. On completion of investigation of the present case the police filed a
charge-sheet in Court against four accused persons for the commission of
offences under Sections 302/307/120-B IPC and Sections 3 and 4 of the Explosive
Substances Act. In due course the four accused persons were committed to
Sessions Court. The learned Additional Sessions Judge vide order dated 18.2.1999
discharged three accused persons namely, Abdul Rehman, Mohd. Maqsood and Ezaz
Ahmed while against fourth accused Mohd. Hussain @ Julfikar (the appellant
herein) charges under Sections 302/307 IPC and Section 3 and in the alternative
u/s 4(b) of the Explosive Substances Act were framed. The appellant had pleaded
not guilty to the charges framed against him and claimed to be tried.
7. To prove its case the prosecution examined as many as 65 witnesses
which included the persons who had received injuries in the bomb blast and
fortunately had survived, police officials who had taken some part or the other
during the investigation of the present case as well as the one pertaining to
FIR No.49/1998 and the doctors who had treated the injured persons and had
conducted post mortem examination.
8. On the conclusion of prosecution evidence statement of the appellant
was recorded by the trial court as required under Section 313 Cr.P.C. The
appellant denied the prosecution allegations against him and pleaded false
implication. He also pleaded that he was a Pak national and had come to India
in September, 1997 for sight seeing and his passport had been taken by the
police. The appellant chose not to lead any evidence in defence.
9. After hearing the additional public prosecutor for the State and the
amicus curiae provided to the accused(the appellant) and considering the
evidence adduced by the prosecution the learned Additional Sessions Judge vide
his judgment dated 26th October, 2004 convicted the appellant Mohd. Hussain for
the commission of the offences under Sections 302 and 307 IPC and also under
Section 3 of the Explosive Substances Act. Vide order dated 3rd November, 2004
the trial Court awarded death sentence to the appellant for his conviction under
section 302 IPC for having caused the death of four persons. The appellant
was ordered to be hanged by the neck till he is dead. Fine of Rs. 5000/- was
also imposed and in default of payment one year?s rigorous imprisonment was
ordered. For the conviction under Section 307 IPC the appellant was awarded
life imprisonment and a fine of Rs. 5000/-, in default of payment one year?s
rigorous imprisonment. Life imprisonment was also awarded for the conviction
under section 3 of the Explosive Substances Act. Substantive sentences of
imprisonment were ordered to run concurrently. As required under Section 366
of the Code of Criminal Procedure the trial Court ordered the records of the
case to be forwarded to the High Court for confirmation of the death sentence
awarded to the convicted accused. That has been done and the reference made to
this Court was registered as Death Reference no. 5 of 2004
10. The convicted accused filed from jail an appeal against the impugned
judgment of conviction and order of sentence passed by the trial Court.
11. The Death Reference and the appeal were taken up together for hearing
and after hearing Mr. Ravinder Chadha, additional public prosecutor for the
State and Shri Sidharth Luthra, counsel for the appellant, both are now being
disposed of by this common judgment.
12. In order to appreciate the arguments advanced by the learned counsel
for the appellant and the learned State counsel, it is necessary to notice at
the outset the main evidence relied upon by the prosecution and accepted by the
learned trial court for convicting the appellant. Then we would ourselves
analyse and assess the worth of that evidence for satisfying ourselves whether
the prosecution has been able to prove its case beyond reasonable doubt or not
since it was held by the Hon?ble Supreme Court in ?State of Tamil Nade Vs.
Rajendran?, AIR 1999 SC 3535 that when a Death Reference is made by a court to
High Court for confirmation the High Court has to satisfy itself whether a case
beyond reasonable doubt has been made out against the accused for imposition of
the extreme penalty of death and for that the proceedings require a re-appraisal
and reassessment of the entire facts and law so as to arrive at its independent
conclusion. So, now we proceed to consider the prosecution evidence.
13. PW-1 Darshan Kumar is the conductor of the bus in which the bomb had
exploded on 30-12-97. He is the star prosecution witness. He has deposed that
he was working as conductor in blue line bus no DL-1P-3088 which used to ply
from Nangloi to Ajmeri Gate. On 30-12-97 he was discharging his duties as
conductor in the said bus and at about 5.30p.m. said bus started from Ajmeri
Gate for Nangloi and at about 5.40 p.m. when the bus reached Pahar Ganj flyover
and stopped at the bus stand one young boy aged about 22 years having a rexine
bag in his hand boarded the bus from there. He further deposed that that boy
purchased a ticket for going to Nangloi giving Rs. 50/- to him and after taking
the ticket he took the seat ahead of him(PW-1) and kept the rexine bag beneath
his seat. When at about 6 p.m. the bus stopped at Karol Bagh that boy wanted to
alight there and on enquiry by him(PW-1) as to why he was getting down there
when he had purchased the ticket for Nangloi he replied that he had remembered
an urgent work and so he was alighting at Karol Bagh and when got down from the
rear gate of the bus. PW-1 further deposed that he had given the description of
the said boy to the police as being of wheatish complexion and of the age of
20/25 years and was wearing spectacles. He also deposed that the accused
present in the court was that person who had boarded the bus at Pahar Ganj and
got down at Karol Bagh leaving behind the rexine bag. He also deposed that at
about 6.20 p.m. when the bus reached Ram Pura bus stand there was a bomb
explosion in the bus from the seat where the accused was sitting and from same
rexine bag which he (the accused) had left in the bus and further that as a
result of that explosion many passengers including himself had sustained
injuries. He then deposed that he was taken to DDU Hospital by the police. He
further deposed that on 23-3-98 he went to Central Jail, Tihar to identify the
accused in TIP but there he was informed by the IO(investigating officer) that
the accused had refused to take part in TIP. On 25-3-98 he went to police
station Punjabi Bagh where he identified the accused as the same person who had
left the rexine bag containing some explosives which exploded.
14. In cross-examination PW-1 stated that the accused had got down from
the rear gate after jostling through the passengers. He denied the suggestion
that he had identified the accused on the asking of the police or that he did
not see the accused in his bus. The last suggestion put to PW-1 was replied by
him like that ?It is wrong that accused did not leave his rexine bag in the
bus.?
15. PW-2 Vijay Kumar was the driver of the bus on duty on 30-12-97 at the
time of explosion. He deposed that when the bus reached Rampura at about 6.20
p.m. there was an explosion in the bus at one seat ahead of the conductor?s seat
due to which many persons including the conductor sustained injuries.
This witness was not cross-examined at all.
16. PW-8 Smt. Chhaiya Deshpandy is one of the injured passengers. She has
deposed that on 30-12-97 at about 5.45 p.m. she had boarded a bus from Pahar
Ganj where she was teaching in a school, for going to Pashchim Vihar (where she
was living) and that she had occupied ladies? seat. She further deposed that
when the bus reached Rampura bus stand at about 6.20 p.m. there was a bomb blast
behind her seat as a result of which she sustained injuries on her legs and she
remained admitted in Maharaja Gurshera Hospital for about 1-2 months. Many
other persons also had sustained injuries.
This witness was also not cross-examined on behalf of the appellant-
accused.
17. PW-9 Rajesh is another injured witness. He deposed that on 30-12-97
he had boarded bus no. DL-LP-3088 from Ajmere Gate for going to Nangloi (where
he was living) and he had taken the seat near conductor?s seat. At about 5.30
p.m. the bus had stopped at Pahar Ganj from where some people had boarded that
bus. He also deposed that when that bus reached Rampura at about 6.20 p.m.
there was a sudden bomb blast behind the ladies? seat. He sustained injuries
due to the bomb blast and he remained hospitalized for about 1? months.
There was no cross-examination of this witness also.
18. PW-10 Sunita is also one of the injured. She has deposed that in the
year 1997 she was staying with her uncle at Uttam Nagar and was doing service in
Madona A-1, Standard Lady?s Dev Nagar, near Khalsa College as receptionist. On
30-12-97 at about 6 p.m. she had boarded bus no. DL-1P-3088 from Dev Nagar for
going to Piragarhi and from there she had to board a bus for going to Uttam
Nagar. She further deposed that she was sitting on the ladies? seat and at
about 6.20 p.m. when the said bus reached Ram Pura bus stand on Rohtak Road
there was a bomb blast in the bus because of which her left feet was amputated
and many other passengers also sustained injuries. She also deposed that she
was taken to Maharaja Aggrasen Hospital where she was medically examined and
remained there for about 28 days. She while showing her ignorance about the
person who kept the bomb underneath the seat deposed that the accused was
sitting in the same bus on her back seat and had offered his seat to some lady
who boarded the bus but she was unable to say at what time accused alighted from
the bus.
In the cross-examination she stated that she did not know whether the
accused was having any luggage with him or not.
19. PW-17 Raja Ram Sharma, resident of Nangloi, is also an injured
witness. He deposed that on 30-12-97 he had boarded the bus from Rampura for
going to Nangloi and he was just near the seat of the conductor when all of a
sudden there was a bomb blast just two seat away from the seat of the conductor
and due to that he received injuries on his leg.
20. PW-22 Surjit Singh has deposed that he was running a grocery shop at
1467, Gali Chuley Wali, Sadar Bazar, Delhi and was dealing in sale of Suphuric
acid. He also deposed that the accused had purchased Sulphuric acid from him.
This witness was not cross-examined on behalf of the accused.
21. PW-27 SI Om Prakash, who was the initial investigating officer, has
deposed that on 30-12-97 he was posted at Punjabi Bagh police station and on
that day DD No. 11A recorded by the duty officer regarding bomb blast at Ram
Pura was assigned to him for enquiry and investigation on which he along with
his staff reached the spot where he found HC Suresh already present. He then
deposed that bus No. DL-1P-3088 was standing there in a damaged condition due to
bomb blast and injured persons had already been removed to Maharaja Aggrasen
and ESI Hospital. He further deposed that he inspected the spot and recorded
the statement Ex. PW-27/A of HC Suresh Kumar and sent the same to police station
through Ct. Chhotu Ram for registration of the case u/s 307 IPC and u/s 3/4/5 of
Explosive Substances Act. He thereafter deposed that he made a request to the
duty officer to convey message to crime team, photographer, bomb squad, dog
squad to reach the spot and he prepared the site plan Ex. PW-27/D. He also
deposed that he inspected the spot and lifted from the spot two wooden pieces
which had come down after bomb blast from the bus, explosive material with the
help of cotton swab, explosive debris, broken pieces of silver, broken pieces of
iron chadar on the bus, foam of the seat, mix churas, one pair of shoes, one
hanky, pieces of wood and glasses and also seized the bus no. DL-1P-3088. PW-
27 further deposed that he sent the dead bodies of deceased Tapoti and Naaz
Mohd. for post-mortem besides recording the statements of Moin Khan and Imtiaz
Khan regarding identification of dead bodies.
22. PW-28 is J.S.Panwar. He had carried out mechanical inspection of the
bus involved in the blast after the incident. He has deposed that on 03-01-98
on the summoning of the police of police station Punjabi Bagh he reached there
and on the request of SI Rajpal Singh he inspected the bus no. DL-1P-3088 which
was already parked in the premises of police station and found the following
damages in the bus:-
1. He found the dismentaled/damage aluminum sheet underneath seat no. 6
and second seat to the seat of the conductor. This aluminum sheet was working
as the floor of the bus.
2. The aluminum sheet/iron sheet working as mudguard was having a hole of
2 x 4feet.
3. All window glasses of both the sides were found broken.
4. Both rear big wind screen were also found broken.
5. Body penal no. 1 and 2 from rear view of left side were found broken.
6. Both the sheets over and the side of the murguard of left view were
also found damaged.
7. Roof over seats no. 5,6,7 and conductor seat as well as of the rear
gate were also found damaged.
8. Right side sheet of seat no. 5,6,7 and left side sheet of seat no. 6
were found missing from its position.
9. Seats no. 5,6,7 were also found damaged.
10. All the lights of bus were either found failed or damaged.
He proved his report as Ex. PW-28/B.
23. PW-34 is Shri A. Dey, who was the senior Scientific Officer-cum-
Assistant Chemical Examiner of CFSL. He has deposed that on 13-01-98 he
received two sealed parcels with the seals of OPR out of which parcel no. 1
contained two broken wooden and two small cloth pieces while parcel no. 2
contained cotton swab, black cloth piece, broken wooden piece and small
shattered metallic pieces and on their examination presence of explosive
mixture based on Chlorate, Nitrate and Sugar was confirmed in the contents of
parcel no. 2. He also deposed that the explosive mixture could have been
initiated by the action of Sulphuric acid and so the mixture was ?Explosive
Substance? as defined in the Explosive Substances Act, 1908. He proved his
proved as Ex. PW-34/A.
24. PW-41 is HC Suresh(on whose statement FIR was registered). He has
deposed that on 30-12-97 he was posted as Head Constable of police station
Punjabi Bagh and on that day he was on duty with Ct. Sanjay at Rampura bus stand
for checking of buses from 6 p.m. to 10 p.m. He then deposed that at about
6.20 pm. a bus no. DL-1P-3088, which was coming from the side of Ajmeri Gate and
going to Nangloi, reached near Rampura bus stand suddenly a bomb blast had taken
place in that bus because of which there was a chaos and cries of the passengers
and many passengers started coming rapidly from that bus as there was thick
smoke in the bus. He further deposed that in the meanwhile a PCR van reached
there and he with the help of Sanjay lifted the injured from the bus and sent
them to hospital in the PCR van as well as on private vehicle. He also deposed
that many passengers had sustained injuries on account of bomb blast. He
thereafter deposed that SI Om Prakash, who recorded his statement Ex. PW-27/A,
had inspected the spot and the bus and also summoned the photographer, crime
team, bomb squad and dog squad. PW-41 then deposed that the photographer had
taken the photographs of the spot and he himself had lifted the pieces of
silver, iron chaddar, foam pieces of seat, mix chura, two pair of shoes, one
handkerchief, pieces of wood and glass vide memo Ex. PW-27/F. He also seized
from the spot two pieces of wood, explosive material, explosive debris vide memo
Ex. PW-27/E. Bus no. DL-1P-3088 was also seized by him vide memo Ex. PW-27/G.
He further deposed that on 6-4-98 on his pointing out draughtsman prepared a
sealed site plan.
25. PW-52 is Ct. Sanjay. He has deposed that on 30-12-97 he was posted
in police station Punjabi Bagh and on that day he was on duty with HC Suresh at
Rampura, Rohtak Road bus stand for checking the buses and at about 6.20 p.m. a
blue line bus DL-1P-3088 came from the side of Ajmeri Gate and was proceeding to
Nangloi and it stopped at Rampura bus stand for boarding and alighting the
passengers. He then deposed that he along with HC Suresh proceeded ahead to
check the said bus but there was a sudden bomb blast in the said bus because of
which thick smoke came out of the bus and passengers started crying and he with
the help of HC Suresh helped the passengers and got them from the said bus. He
further deposed that the remaining passengers were seriously injured and the bus
was damaged. He thereafter deposed that HC Suresh informed the PCR and may
private vehicle also reached there to help the passengers and took them to the
hospital but he could not count the injured persons as they were in large
numbers. He also deposed that some pieces of flesh and the blood scattered in
the bus. He further deposed that he and HC Suresh made enquiry from the
passengers as to who had placed said bomb in the bus but none could disclose the
person who had placed the bomb.
26. PW-65 Inspector Satya Prakash is also the investigating officer of
this case. He has deposed that on 3-1-98 he was posted as Additional SHO, P.S.
Punjabi Bagh and on that day investigation of the present case was assigned to
him by SI Om Prakash and during investigation he got sent some exhibits to CFSL,
applied for production warrant of the accused before learned Ilaka Magistrate as
the accused was arrested in the case of FIR No.49/98 and later on arrested him
on 21-3-98 when he was produced in the court and he also collected disclosure
statements of accused recorded in that case. PW-65 further deposed that on 21-
03-98 itself he produced accused Mohd. Hussain(appellant herein) in muffled face
before the court and applied for his TIP which was fixed for 23-03-98.
However, the accused refused to participate in the TIP on 23-03-98. He further
deposed that pursuant to the disclosures made by Mohd. Hussain he prepared
pointing out memos of the places from where this accused had purchased battery,
watch, sulphuric acid and the house also no. 130/1A in Garhi, Lajpat Nagar where
the bomb was manufactured. He also deposed that he got the sanction order on
15-6-98 under the Explosive Substances Act. He also proved pointing out memos
Ex. PW-21/A, Ex. PW-22/A and Ex. PW-24/A and B. Same day this accused pointed
out the place from where he had boarded the bus on 30-12-97 at Pahar Ganj and
also the place in Karol Bagh where he had got down. Pointing out memos in that
regard are Ex. PW-56/A and B. He also stated that on 25-03-98 the conductor of
the bus Darshan Kumar came to the police station and immediately identified the
accused(Mohd. Hussain).
27. PW-56 HC Kalyan Singh deposed that on 21-3-98 he was posted at police
station Punjabi Bagh and on that day three accused Abdul Rehman, Mohd. Maqsood,
Azaz Ahmed(who, as noticed already, were discharged by the trial Court) were
taken on police remand from the court of Shri S.K.Jain, MM and were taken to DDU
Hospital for medical examination from where they all were brought to police
station and their disclosure statements were recorded. He then deposed that
when accused Mohd. Hussain was being taken to hospital for medical examination
and reached the flyover of Pahar Ganj he disclosed that he had boarded a bus
from there and also pointed out the place at Karol Bagh where he had got down
from the bus. He also deposed that the accused also pointed out the places in
Lajpat Rai Market from where he had purchased battery, conductor and time piece
and he also pointed out shop no. 1468 in Gali Chulhe Wali from where he had
purchased Sulphuric acid. PW-56 proved pointing out memos in this regard as Ex.
PW-56/A, Ex. PW-56/B, Ex. PW-21/A, Ex. PW-22/A, Ex. PW-23/A and Ex. PW-24/A.
28. PW-53 Inspector Data Ram deposed that in the year 1998 he was posted
in crime branch SIT section and he joined the investigation in case FIR No.
49/98(reference to which case has already been made). He then deposed that on
8-3-98 at about 8.40 p.m. they reached the house of one Abdula at Govind Puri
and laid ambush near his house and at about 9 p.m. one person aged 40 having a
plastic bag in his hand came there and on seeing the house of Abdula locked
started going back. He further deposed that that person was apprehended and on
enquiry his name was found to be Abdul Rehman(the discharged accused). He
thereafter deposed that on checking his thaila it was found to contain chemical
powder weighing 4kg. 700 gms., one old brand bottle containing acid and one
pocket diary which were seized. PW-53 also deposed that Abdul Rehman made
disclosure statement disclosing about the accused(Mohd. Hussain) and pointed out
his(Mohd. Hussain?s) house in Lajpat Nagar. PW-53 then deposed that when they
knocked at the door of the house of accused Mohd. Hussain he came out having a
pistol in his hand and tried to fire upon the police party but he could not do
so and was apprehended and his pistol which was having six rounds in the
magazine and one in its chamber was seized by the IO. He then deposed that
accused Mohd. Hussain made a disclosure statement and that during the search of
his house one attachee containing potassium fluoride weighing about 4kg. 750
gms. was found and in one plastic jar chemical weighing 900 gms. was also found,
one steel dibba containing 8 kg. 200 gms. chemical powder and in another plastic
jar 1 kg. 250 gms. of some chemical was found. In one glass bottle 750 gms.
nails were recovered and all these articles were taken into possession. This
witness further deposed that accused Mohd. Hussain also pointed out shop no. 507
of Chopra Electricals in Old Lajpat Nagar Market from where he had purchased 12
batteries of 9 Volts and battery connector. He also pointed out shop no. 223,
New Lajpat Rai Market from where he had purchased eight table clocks (quartz)
and shop no. 1468, gali Chulhe Wali, Sadar Bazar owned by one Surjit Singh from
where he had purchased Sulpheric Acid which he had used for manufacturing of
bomb.
29. PW-53 also deposed that the accused(Mohd. Hussain) was a close
associate of Amir Khan and other persons who had came to Delhi with a view to
plant bombs at various places to create havoc and terror in the mind of Delhi
residents. This witness was also not cross-examined by the accused.
30. PW-63 Dr. Sanjana Shrma is an expert in explosives and while employer
in CFSL at Chandigarh had after examining the material seized during the raids
of different places on 8-3-98 in case FIR No. 49/98 of police station Railway
Station(main) given her reports Ex. PW-63/A, Ex. PW-63/B and Ex. PW-63/C to the
effect that material examined by her was potassium chlorate, sulpheric acid,
which as per her report are the constituents of a bomb. During her cross-
examination she denied the suggestion that her reports are fabricated ones at
the instance of police.
31. PWs 15, 29 and 31 are the doctors who conducted post-mortem
examination on the dead bodies of those persons who had died due to the injuries
sustained by them because of the bomb blast in the ill fated bus on 30-12-97.
They have proved post-mortem reports as Ex. PW-15/A, Ex. PW-29/A and Ex. PW-31/B
respectively.
32. PWs 30,33,35,46, 57 and 58 are the doctors who had examined some of
the injured bus passengers. They have deposed about the injuries noted by them
on the person of those injured. They proved their MLCs as Ex. PW-33/A to I, Ex.
PW-35/A to E and Ex. PW-57/A.
33. PW-60 Shri Vipin Kumar Gupta is the Magistrate who was to conduct the
test identification parade for the appellant Mohd. Hussain. He has deposed that
on 21-03-98 he was working as Link MM of Shri S.K.Jain and on that day Inspector
Satya Prakash had moved an application for conducting of TIP of Mohd. Hussain @
Abdul Hussain and the said application along with the accused was referred to
him. He then deposed that he had fixed the TIP for the accused for 23-03-98 at
2 p.m. in Central Jail, Tihar and also recorded that the accused was produced in
custody in muffled face by Inspector Satya Prakash, Additional SHO, Punjabi
Bagh. He also deposed that on 23-03-98 he went to Central Jail, Tihar where
accused duly identified by Shri S.S.Dahiya, Assistant Superintendent Jail was
produced before him in unmuffled face and refused to join TIP despite being
warned, on the ground that his photographs were taken by the police at the time
of arrest and might have been shown to the witness. He further deposed that
he had recorded the TIP proceedings and had given the certificate that the
proceedings were correctly recorded. He also proved the TIP proceedings as Ex.
PW-60/C.
34. In cross-examination by the counsel for the appellant this witness
confirmed that on 21-03-98 the accused was produced before him in muffled face.
He was also asked if he had enquired from the accused on 21-03-98(when
application for TIP was moved by the investigating officer) if he wanted to
participate in TIP. The answer of the Magistrate was that he had enquired
from the accused and he had replied in the affirmative and then he(PW-60) had
fixed the TIP for 23-03-98.
35. PWs 5 to 8,11,12,13,14,17,19 and 37 are all injured witnesses. They
have deposed about their having sustained serious injuries due to bomb blast in
the bus on 30-12-97 in which they all were travelling. PW-16 Paras Nat Yadav is
also a witness of the bomb blast although he was not a passenger of the bus.
When the bus was standing at the Rampura bus stop he was on his scooter and
standing on the back side of the bus when the blast took place. He has claimed
that at that time he had felt pain in his leg and had become unconscious.
36. PWs 3,4,18,20,54 and 55 are the relatives of the deceased bus
passengers. They have deposed about their having identified the dead bodies of
their relatives who had died in the bomb blast. PW-64 Shri R.C.Meena proved the
sanction for the prosecution of the accused under section 7 of the Explosive
Substances Act, 1908.
37. This much is the main evidence of the prosecution relied upon by the
prosecution. Other witnesses examined were of formal nature and their evidence
was not even referred to from either side during the hearing before this Court.
From the fore-going narration of prosecution witnesses it stands established
beyond any shadow of doubt that on 30-12-97 there was a bomb blast in blue line
bus no. DL-1P-3088 at Rampura bus stand at Rohtak Road, New Delhi and also that
due to that bomb blast four passengers of that ill fated bus had died and many
passengers had sustained serious injuries but were fortunate to survive. All
this was not disputed by Mr. Sidhartha Luthra, learned counsel for the appellant
before us. He also did not dispute that with the death of four persons due to
the bomb blast offence of murder stood committed and the offence of attempted
murder also stood committed because of the injuries sustained by the surviving
injured persons. Even otherwise the intention of the culprit to cause death
of innocent people by planting a bomb in the bus is quite apparent. The post-
mortem reports in respect of the four deceased persons show that their death was
due to the injuries sustained by them in the explosion in the bus. Some of the
passengers survived despite having suffered injuries in the blast but God only
had saved them even though the culprit while planting the bomb in the bus had
done that intentionally and knowingly that due to the bomb blast everyone in the
bus could be killed. So, the prosecution evidence fully establishes the
commission of the offences as found by the learned trial Court.
38. Now, as far as the involvement of the appellant Mohd. Hussain in the
bomb blast in the bus is concerned it was contended by the learned counsel for
the appellant that the evidence of various bus passengers examined by the
prosecution and also that of the bus conductor would at the most establish that
the appellant was travelling in the bus on 30-12-97, although evidence is not
satisfactory even to establish that fact alone it cannot be concluded that it
was the appellant who had planted the bomb in the bus. It was also contended by
Mr. Luthra that there is no eye witness of the plantation of the bomb in the bus
and none of the witnesses examined by the prosecution including the injured
witnesses has claimed that it was the appellant Mohd. Hussain whom they had seen
keeping the bomb in the bus and in the absence of evidence to that effect the
appellant could not have been held guilty of the offences for the commission of
which he has been found guilty by the learned Additional Sessions Judge. There
is no doubt that there is no witness examined by the prosecution who might have
seen the appellant keeping the bomb in the bus. However, it is now well
settled that examination of eye witnesses is not the only way by which a crime
can be established by the prosecution in a criminal trial. The guilt of an
accused can be established by circumstantial evidence also. In this regard
reference can be usefully made to the observations of the Hon?ble Supreme Court
which have to be kept in view while deciding a case based on circumstantial
evidence. In ?Ajit Savant Majagvai vs. State of Karnataka? (1997) 7 SCC 110,
the Hon'ble Supreme Court had held as under:-
?18. Before taking up this task, it may be stated that for a crime to be
proved, it is not necessary that the crime must be seen to have been committed
and must, in all circumstances, be proved by direct ocular evidence by examining
before the Court those persons who had seen its commission. The offence can be
proved by circumstantial evidence also. The principal fact or ?factum probandum?
may be proved indirectly by means of certain inferences drawn from ?factum
probans?, that is. The evidentiary facts. To put it differently, circumstantial
evidence is not direct to the point in issue but consists of evidence of various
other facts which are so closely associated with the fact in issue that taken
together, they form a chain of circumstances from which the existence of the
principal fact can be legally inferred or presumed.
19. It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other person.
20. The circumstances from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the
case depends upon the conclusions drawn from circumstances, the cumulative
effect of the circumstances must be such as to negative the innocence of the
accused and being the offences home beyond any reasonable doubt.
21. In Padala Veera Reddy v. State of A.P. it was laid down that when a case
rests upon circumstantial evidence, such evidence must satisfy the following
tests:
?(1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete
that there is no escape from the conclusion that within all human probability
the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his innocence.?
39. In the present case the prosecution has strongly relied upon the
evidence of the conductor of the ill-fated bus who has been examined as PW-1.
His evidence we have already narrated. The learned trial Court has placed
strong reliance on his evidence while arriving at the conclusion that it was the
appellant Mohd. Hussain who was responsible for the bomb blast in the bus.
This witness has clearly deposed that the appellant Mohd. Hussain had boarded
the bus from Pahar Ganj and at that time he was holding a rexine bag in his hand
and after taking a seat which was ahead of his(PW-1?s) seat had kept the rexine
bag underneath that seat and while getting down from that bus at Karol Bagh,
even though he had purchased the ticket for going to Nangloi, he had left behind
the rexine bag. This witness in his cross-examination had also stated that the
accused had got down from the bus after jostling through the passengers. That
shows that he was in a hurry to get down from the bus before the explosion of
the bomb. He also deposed that when the bus reached Rampura bus stand there was
an explosion from underneath the seat where the accused had sat and further that
that explosion was from the same rexine bag which he had left behind in the bus.
In the cross-examination of the conductor on behalf of the accused his testimony
to the afore-said effect could not be discredited. It was not even suggested
to this witness that the accused was not travelling in that bus. In fact, the
suggestion put to this witness in the cross-examination was that the accused had
not left his rexine bag in the bus. That suggestion clearly shows that the
accused admits that he was travelling in that bus along with a rexine bag. The
driver of the bus PW-2 Vijay Kumar has also deposed that the explosion had taken
place one seat ahead of the conductor?s seat. PW-8 Smt. Chhaya Deshpandey has
also claimed that she had occupied ladies? seat and the blast had taken place
behind her seat. She was not cross-examined by the accused. PW-9 Rajesh has
also claimed that the blast had taken place behind the ladies? seat in the bus.
PW-10 Ms. Sunita also claims to have seen the accused sitting in the bus and no
suggestion was put to her in cross-examination that the accused was not
travelling in the bus as claimed by her. The accused also did not challenge
the statements made by these witnesses that there was a bomb blast in the bus at
Rampura bus stand.
40. Regarding the identification of the appellant in Court by the
conductor of the bus and some of the passengers learned counsel for the
appellant had submitted that that identification was of no worth since the
police had taken his photos after his arrest and for that reason the appellant
had refused to participate in the test identification parade also. The refusal
was justified and for this contention support was sought to be drawn from a
judgment of the Hon?ble Supreme Court in ?Laxmipat Chorasia Vs. State of
Maharashtra?, AIR 1968 SC 938, wherein it was held that identification of a
suspect by a witness in the identification parade after his photos had been
shown to the witness makes the identification worthless. This argument is,
however, liable to be repelled for more than one reason. Firstly, because it
was not suggested to any of the identifying witnesses that they had been shown
the photos of the appellant. Even to the investigating officer(PW-65 Insp.
Satya Prakash) it was not so suggested. Second reason is that the Metropolitan
Magistrate(PW-60) who had to conduct the identification parade was specifically
asked in cross-examination if accused was asked by him on 21-03-98 whether he
wanted to join the identification parade to which the reply of the Magistrate
was that yes, he had asked the accused and he(accused) had replied in the
affirmative. Thereafter, no suggestion was put to the Magistrate that the
accused had not agreed to participate in the identification parade. So, it is
clear that at the first available opportunity the appellant had not taken any
such plea that police had taken his photographs and for that reason he was not
willing to participate in the identification parade. If he had said so on 21st
March, 1998 when the investigating officer had moved the application before the
Magistrate(PW-60) in Court for holding the identification parade the Magistrate
would not have fixed the parade in jail for 23rd March. So, appellant?s
refusal to join the identification parade on 23rd March on the ground that his
photos had been taken by the police cannot be said to be justified. It was not
his plea that between 21st March and 23rd March his photos had been taken. Nor
was it suggested to any of the police witnesses.
41. It was also submitted by Mr. Luthra that the conductor of the bus
cannot be said to be trustworthy since he had not come forward immediately
after the incident to say that he had seen a passenger in the bus who had got
down from the bus before his destination leaving his rexine bag in the bus. In
this regard our attention was drawn to the evidence of PW-52, Ct. Sanjay who was
one of the two policemen who were on checking duty at the Rampura bus stop when
the bomb blast took place. In his chief-examination itself this witness had
stated that he and Head Constable Suresh,PW-41(on whose statement FIR was
registered in this case) had made enquiry from the passengers as to who had
placed bomb in the bus but none could disclose about that person. PW-27 SI Om
Prakash?s evidence was also referred to by Mr. Luthra. He is the initial
investigating officer. He also claimed that during the interrogation of the
injured none of them could give description of the person who had planted the
bomb. Referring to these statements of the two police witnesses Mr. Luthra
contended that PWs 1 and 10 have been tutored later on by the police to identify
the appellant. In our view, this argument also has no force. Nobody has
claimed that he or she had seen anyone planting bomb in the bus. At the time
of blast the injured persons must have been traumatized due to massive explosion
in the bus. At that time every injured person would have been under a great
shock and wanting to be rushed to hospital. In any case, the conductor of the
bus has categorically claimed that he had given the description of the
boy(appellant). It should have been elicited from him as to when he had given
the description of the suspected passenger. No such cross-examination was done
of this witness. Nor PW-10 Sunita was cross-examined in this regard.
42. In our view in these kind of cases of bomb blasts it is almost
impossible to find out a witness who can claim to have actually seen a bomb
being planted somewhere by some terrorist. We are also of the view that there
cannot be a better witness than the one we have in the present case, namely, the
conductor of the ill-fated bus in which bomb blast took place. In this regard
we may usefully refer to a decision of the Hon?ble Supreme Court in ?Ravinder
Singh Vs. State of Maharashtra?, (2002) 9 SCC 55 which was a case of a bomb
blast in a train. In that case the prosecution had examined one lady passenger
travelling in that train when the bomb blast took place and she had expressed
her suspicion regarding one passenger. That passenger witness had herself
received serious injury in the bomb blast and her husband had lost his life in
the same incident. She had identified the accused as the person who was sitting
in front of her and was inserting his hand in a cloth bag which was under his
seat. In that case also that man had left the train leaving behind the cloth
bag and then blast took place after some time. That lady witness was examined
as PW-3 in that case and dealing with her evidence and the criticism on behalf
of the convicted accused the Hon?ble Supreme Court had observed in para nos. 21
and 22 of the judgment as under:-
?21. Let us now revert to Deepali Chauhan(PW-3) who lost her leg
below the knee in the bomb blast in the train and also her husband who was
killed as a result thereof. She has given a detailed version of the manner in
which the appellant was inserting his hand in the cloth bag which had in it the
bomb with a view to fix the wire. She also identified the appellant in the
test identification parade held on 6-9-1992 as being the person who was sitting
in the train opposite her. The appellant was arrested on 5-7-1992. Delay of
two months in conducting test identification parade has been satisfactorily
explained. Though some confusion seems to have erupted on account of a person
sitting in the train being ?Sardarji? as distinguished from ?Punjabi? having the
hair cut and a slightly grown beard but the same is of no consequence in the
facts and circumstances of the present case particularly when the conviction is
not based on the sole testimony of PW 3. The version given by the appellant in
his confessional statement finds sufficient corroboration from the testimony of
PW 3.
22. It is true that PW 3 must have seen the appellant as deposed by her
only when he was sitting in the train opposite her but what is to be kept in
mind is that the memory and power to recapitulate differs from person to person
as also from situation to situation. Here the situation is that after she
noticed the manner of handling the bag by the appellant and leaving the bag
behind while getting down from the train, the blast taking place soon thereafter
wherein she suffered the injuries as above and lost her husband. Under these
circumstances, the criticism to her identification of the appellant is without
any substance so also the criticism to her testimony on the basis of minor
contradictions. The identification made by PW 3, on the facts and
circumstances of the case, cannot be faulted on the ground of delay of a few
months. Further, as noticed earlier as well, even if corroboration was to be
required, though not necessary in the present case in view of the confessional
statement of the accused, then too, it would be sufficient if there is a general
corroboration of the important incidents and not that the corroborative evidence
itself should be sufficient for conviction.?
43. In the present case also a wholly insignificant contradiction in the
evidence of the conductor is sought to be brought into the attack for rejecting
his evidence. At one time he had claimed that the appellant had given him a
note of Rs. 50/- after boarding the bus for purchasing ticket of Rs. 5/- and
later on he claimed that note of Rs.5/- was given to him by the appellant.
This fact, in our view, hardly makes the testimony of PW-1 Darshan Kumar
unreliable. His evidence can be said to be wholly reliable, sufficient enough
to be acted upon without any corroboration even though there is enough
corroborative evidence also adduced by the prosecution. In our view, from the
evidence of the conductor(PW-1) of the ill fated bus and the injured passenger
witnesses(PWs 8,9,10 and 17) it stands established that the bomb had exploded
underneath the seat which had been occupied by the appellant Mohd. Hussain. It
was he who had kept a rexine bag below his seat. He left that bag in the bus
while getting down before the arrival of his destination point for which he had
purchased the ticket. All these circumstances clearly establish that the
rexine bag which the accused was carrying with him and which he had kept below
his seat in the bus contained bomb which after some time exploded causing death
of four and injuries to many passengers in the bus.
44. We are also of the view that the prosecution in the present case has
been able to show that the appellant is not that simple a person as he wants us
to believe. As noticed already, in his statement under Section 313 Cr.P.C. he
had claimed that he was a Pakistani national and had came to India for sight
seeing in 1997. He had also claimed that his passport and visa etc. had been
taken away from him by the police. This plea of the appellant that he come to
India legally has not even been probabilised from any circumstance during the
trial. The prosecution has examined PW-53 Inspector Data Ram. His evidence
has already been narrated by us. He had clearly deposed that when the police
had raided the house of appellant Mohd. Hussain in Lajpat Nagar on 08-03-98
pursuant to the information given by Abdul Rehman (discharged accused of this
case) the appellant on seeing the police had tried to fire on them. He had
also deposed that during the search of his house the police had recovered
Potassium Flouride and Mercury and some other chemicals besides 750 gms. of
nails. Those chemicals were seized and were sent for chemical analysis to
Central Forensic Scientific Laboratory(CFSL) and on examination there those
chemicals were found to be the constituents of explosives. The CFSL reports to
that effect are Ex. PW-63/AandB. Inspector Data Ram had also deposed that this
accused had come to Delhi with a view to plant bombs at various places to create
terror in the minds of the residents of Delhi. This testimony of Inspector Data
Ram was not demolished. The appellant has failed to explain the recovery of
chemicals used for making explosives from his house and that is yet another
strong circumstance which lends credence and corroboration to the prosecution
case in general and the evidence of the bus conductor in particular.
45. Faced with this situation Mr.Luthra came out with an argument that
this case, in fact, needs to be remanded back to the trial back for a fresh
trial because the trial court record would reveal that the accused did not have
a fair trial inasmuch as on most of the hearings when material witnesses were
examined he was unrepresented and the trial court did not bother to provide him
legal aid at State expense and by not doing that the Trial Court, in fact,
failed to discharge its pious duty of ensuring that the accused was defended
properly and effectively at all stages of the trial either by his private
counsel or in the absence of private counsel by an experienced and responsible
amicus curiae. Mr. Luthra also submitted that, in fact the learned Additional
Sessions Judge himself should have taken active part at the time of recording of
evidence of prosecution witnesses by putting questions to the witnesses who had
been examined in the absence of counsel for the accused. It was contended that
the right of the accused ensured to him under Articles 21 and 22 of the
Constitution of India for a fair trial has been, thus, violated. In support of
this argument which, in fact, appears to us to be the sheet anchor for the
appellant, Mr. Siddharth Luthra cited some judgments also of the Hon?ble Supreme
Court which are reported as AIR 1997 SC 1023, 1994 Supp. (3) SCC 321, AIR 1986
SC 991 and 1983 (III) SCC 307 . One judgment of Gauhati High Court reported
as 1987 (1) Crimes 133, ?Arjun Karmakar Vs. State of Assam? was also relied upon
by Mr. Luthra.
46. There can be no dispute about the legal proposition put forward by the
learned counsel for the appellant that it is the duty of the Court to see and
ensure that an accused in a criminal trial is represented with diligence by a
defence counsel and in case an accused during the trial remains unrepresented
because of poverty etc. it becomes the duty of the Court to provide him legal
aid at State expense. We find from the judgment of the trial Court that this
point was raised on behalf of the accused during the trial also by the amicus
curiae provided to the accused when his private counsel stopped appearing for
him. The learned trial Court dealt with this argument in para no. 101 of the
judgment which is as under:-
?It is next submitted that material witnesses have not been cross-
examined by the accused and as such, their testimony cannot be read against him.
I may add that from the very beginning of the trial, the accused has been
represented by a counsel Sh. Riaz Mohd. and he had cross-examined some of the
witnesses. Later on, when Sh. Riaz Mohd. did not appear in the court on some
dates, Mrs. Sadhna Bhatia was appointed as Amicus Curiae to defend the accused
at State expenses. If the accused did not choose to cross-examine some
witnesses, he cannot be forced to do so. Moreover, later on accused prayed for
cross-examination of PW-1 Sh. Darshan Kumar, which was allowed though it was
filed at a belated stage after a long period of time. The accused did not
desire any other witness to be cross-examined. Not only this, statement of PW-
1 Sh. Darshan Kumar was recorded on 18-05-1999 and he was also present on 3-6-
1999 and 13-08-1999, but on all three dates, the cross-examination of this
witness was deferred at the request of the accused, who was ultimately
discharged with nil cross-examination. This shows that accused himself was not
interested in cross-examining the witnesses. As such, this submission is also
without merit.?
47. We have ourselves also perused the trial court record and we are
convinced that it is not a case where it can be said that the accused did not
have a fair trial or that he had been denied legal aid. We are in full
agreement with the above quoted views of the learned Additional Sessions Judge
on this objection of the accused and we refuse to accept the plea of the
appellant that this case should be remanded back for a re-trial.
48. The upshot of the fore-going discussion is that it can be concluded
without any hesitation that the prosecution has been able to establish its case
beyond any shadow of doubt and the learned trial Court has rightly convicted the
appellant Mohd. Hussain for the different offences. The guilt of the appellant
stands established from the circumstances starting from his illegal entry into
this country a couple of months before the incident of bomb blast in the bus,
recovery of explosive material from his house on 08-03-98, his boarding the ill
fated bus on 30-12-97 along with a rexine bag, his purchasing a ticket for going
to Nangloi but getting down much before that at Karol Bagh and that too leaving
his rexine bag underneath the seat which he had occupied after boarding the bus.
He had got down from the bus jostling through the passengers. Soon after he
got down from that bus there was an explosion from underneath the seat which he
had occupied upto Karol Bagh and under which he had left behind his rexine bag.
When he was asked to join test identification parade he refused to participate
in that on a false plea that his photos had been taken. All these
circumstances, taken cumulatively, form a chain so complete that there is no
escape from the conclusion that the same are consistent only with the guilt of
the appellant and totally inconsistent with his innocence. So the challenge of
the appellant against his conviction fails.
49. After an accused is found guilty of serious offences like that of
murder the Court is faced with a difficult task of deciding as to what should be
the appropriate punishment to be awarded to the convicted accused. For the
offence of murder punishable under Section 302 IPC the Legislature has provided
only two kinds of punishments, namely, life imprisonment and the extreme penalty
of death. In the present case the learned trial Court has in his order on
sentence after making reference to the various judgments of the Hon?ble Supreme
Court which are reported as ?Ramji Rai and Others Vs. State of Bihar?, (1999) 8
SCC 389; ?Mohan and Others Vs. State of Tamilnadu?, Crl.L.J. 3276; ?Devender Pal
Singh Vs. State of NCT of Delhi and Anr.?, 2002 III AD (SC) 245; ?Bachan Singh
Vs. State of Punjab?, AIR 1980 SC 898 and ?Machhi Singh and Ors. Vs. State of
Punjab?, 1983 (3) SCC 470 had decided to impose the extreme penalty of death
upon the convicted accused Mohd. Hussain. Learned trial Judge has observed in
para nos. 11 to 13 of his order on sentence as follows:-
?11. In these circumstances it is clear that the accused entered
India with an evil design to carry out bomb blasts. Systematic planning and
execution thereof is writ large on the face of records?
12. As such, it is apparent that bomb blast was executed by the accused in
extremely cruel, diabolic and dastardly manner without regard to the lives of
innocent persons traveling in the bus. His intentions were extremely horrific
and grotesque as the bomb was placed in an overcrowded bus. The explosion was
aimed at creating widespread sense of fear, insecurity and helplessness in the
city. It is the worst example of terrorism committed by a hostile alien in the
heart of capital.
13. All these facts go to constitute the instant case as rarest of the
rare type of case and the convict needs to be punished with extreme penalty of
death to serve the triple principle of deterrence, punishment and safety, as the
alternative punishment of life imprisonment appears to be grossly inadequate in
the facts and circumstances referred to above. If left alive he would be a
menace to society. He must cease to exist in the interest of society.?
50. After giving our thoughtful consideration to the entire aspect of the
matter and the facts and circumstances leading to the death of four innocent
persons and injuries to many because of the heinous act committed by the
appellant Mohd. Hussain we fully subscribe to the above quoted observations of
the learned Trial Court while awarding the death sentence to the appellant. Our
country has been a victim of many such incidents of bomb blasts for some years
now at the hands of terrorists and hundreds of innocent lives have been lost in
those incidents. Those incidents of bomb blasts have shaken the entire nation.
Conscience of the society will be satisfied only if capital punishment is
awarded to the perpetrators of these kind of crimes. People like the appellant
herein are definitely a menace to the society and do not deserve to exist on
this earth. There is no mitigating circumstance in favour of the appellant for
leaving him alive. The plea of his counsel for mercy is unjustified. Showing
any mercy to the people like the appellant herein would be a mockery of justice.
Whenever some person is found guilty of this kind of gruesome acts and ghastly
murders the penalty of death sentence is the only appropriate punishment and
there is no other alternative to that. We find this to be a rarest of rare
cases where the death penalty should be imposed on the appellant. In this
regard we may also refer to the following views of the Hon?ble Supreme Court
expressed in ?Mahesh Vs. State of M.P.?, (1987) 3 SCC 80:-
?6. We share the concern of the High Court. We also feel that it
will be a mockery of justice to permit these appellants to escape the extreme
penalty of law when faced with such evidence and such cruel acts. To give the
lesser punishment for the appellants would be to render the justicing system of
this country suspect. The common man will lose faith in courts. In such cases,
he understands and appreciates the language of deterrence more than the
reformative jargon. When we say this, we do not ignore the need for a
reformative approach in the sentencing process. But here, we have no
alternative but to confirm the death sentence. Accordingly, we dismiss the
appeal.?
We accordingly confirm the death sentence imposed on the appellant Mohd. Hussain
under Section 302 IPC. The sentences imposed on him for his conviction under
other offences of IPC and the Explosive Substances Act are also maintained.
51. In the result, we dispose of the murder reference by confirming the
death sentence imposed on the appellant Mohd. Hussain and the appeal filed by
him for setting aside his conviction under Sections 302/307 IPC and also under
Section 3 of the Explosive Substances Act and the sentences imposed upon him
vide judgment dated 26-10-04 and order on sentence dated 03-11-04 in Sessions
Case No. 122/98 stands dismissed.
P.K.BHASIN,J
R.S.SODHI,J
August 4 ,2006
Sh
