MOHD. ARIF @ ASHFAQ versus STATE (NCT OF DELHI)

Citation: [2022] 7 S.C.R. 792 · Decided: 03-11-2022 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Dismissed

Cited by 2 judgment(s) · cites 8 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 7 S.C.R.
MOHD. ARIF @ ASHFAQ
v.
STATE (NCT OF DELHI)
(Review Petition (Crl.) Nos. 286-287 of 2012)
in
(Criminal Appeal Nos. 98-99 of 2009)
NOVEMBER 03, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT
AND BELA M. TRIVEDI, JJ.]
Review Petition – Death Penalty – In firing incident inside
Lal Quila, three army jawans received fatal injuries and lost their
lives – Review Petitioner was tried and was awarded death sentence
– Death sentence was confirmed by High Court – Petitioner
preferred appeal before Supreme Court – The challenge was negated
and award of death to the petitioner was affirmed – Review petitions
before Division Bench were dismissed – Curative petition filed by
review petitioner also dismissed –Thereafter writ petition was
preferred on ground that the review petitions in matters arising out
of award of death sentence be heard by three judge bench in open
Court –On review, held: Challenge raised in these review petitions
were on grounds such as admissibility of electronic evidence,
reliability and admissibility of disclosure statement, relevancy of
recovered ammunition and possibility of rehabilitation of the review
petitioner – Electronic evidence in form of CDRs which was without
any appropriate certificate must be eschewed – Even after
eschewing such circumstances directly attributable to the CDRs,
the other circumstances on record do clearly spell out and prove
beyond any doubt the involvement of review petitioner in the crime
in question – In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of such disclosure statement
on issues of fact – Submission that recovery of ammunition or
encounter of ‘A’ could not be associated with the disclosure statement
of the review petitioner is not quite correct – Nothing on record
which can be taken to be a mitigating circumstance in favour of the
review petitioner – Suggestion that there is a possibility of retribution
and rehabilitation, is not made out from and supported by any
[2022] 7 S.C.R. 792
792
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material on record – Review petitions dismissed – Evidence Act,
1872 – s.65B.
Review – In review jurisdiction, it will not be possible to enter
into questions regarding admissibility of disclosure statement on
issues of fact.
Dismissing the review petitions, the Court
HELD: 1. In review petitions, the challenge is raised
principally on four grounds: -
(a) The concerned Courts committed error in allowing call
records to be admitted in evidence, in the absence of an
appropriate certificate under Section 65B of the Indian Evidence
Act, 1872
(b) The disclosure statements of the review petitioner must
be taken to be inadmissible on account of ill treatment meted out
to him during the intervening night between his actual arrest and
his formal arrest.
(c) The recovery of ammunition or the encounter of one
Abu Shamal, who was stated to be the accomplice of the petitioner,
at Batla House, New Delhi, could not be associated with the
disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the
review petitioner, or that he would continue to be a threat to the
society, was not considered by the Courts. [Para 12][807-G; 808-
A-B]
2. Since the instant matter pertains to award of death
sentence, this review petition must be considered in light of the
decisions made by this Court in Anvar P.V. and Arjun Panditrao.
Consequently, one must eschew, for the present purposes, the
electronic evidence in the form of CDRs which was without any
appropriate certificate under Section 65-B(4) of the Evidence Act.
Circumstances mentioned at Serial Nos. ‘h’ and ‘j’ become
extremely weak as the tracing of calls received by PWs 39 and
41 to Mobile was possible only through CDRs. These
circumstances must not, therefore, be taken into account. Even
after eschewing circumstances ‘h’ and ‘j’ which were directly
attributable to the CDRs relied upon by the prosecution, the other
MOHD. ARIF @ ASHFAQ v. STATE (NCT OF DELHI)
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
circumstances on record do clearly spell out and prove beyond
any doubt the involvement of the review petitioner in the crime
in question. [Paras 23-26][822-D-E, H; 823-A]
Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399 and Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC
1- relied on.
3. Grounds ‘b’ and ‘c’ are purely factual in

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