LexMOHD. ARIF @ ASHFAQ versus STATE OF NCT OF DELHI
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A B [2011] 10 S.C.R. 56 MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF DELHI (Criminal Appeal Nos. 98-99 of 2009) AUGUST 10, 2011 [V.S. SIRPURKAR AND T. S. THAKUR, JJ.) CONSTITUTION OF IND/A, 1950: C Article 136 - Scope of - Held: Supreme Court ordinarily does not go into the appreciation of evidence, particularly, where there are concurrent findings of facts - However, the Court examined the oral and documentary evidence not only relating to the appellant, but also to the other accused persons - As a result, the Court is of the view that the courts below D have fully considered the oral and documentary evidence for coming to the conclusions that ther did. PENAL CODE, 1860 E ss. 121, 121-A, 120-8 rlw s. 302, 18613531120-8, 4681471 and 4201120-8 - Conspiracy to wage war against and to overawe Government of India - Red Fort attack - Three soldiers killed by intruders - Circumstantial evidence - Appellan.t-accused, a Pakistani national and member of an F international terrorist organization, apprehended on the basis of a cell phone number - On his disclosure statements, sophisticated weapons used in the attack, hand grenades, diary etc. recovered leading to police encounter of his associate and seizure of documents from the office of a 'hawa/a' dealer (absconding) - Some accused absconding G and three killed in encounters - Conviction of appellant- accused and sentence of death awarded by trial court, confirmed by High Court - Other accused acquitted by High Court - HELD: The offence of conspiring to wage a war is proved to the hilt against the appellant, for which he has been H 56 MOHD. ARIF @ ASHFAQ v. STATE OF NCT OF 57 DELHI · rightly held guilty of the offence punishable u/s. 121 and 121- A A, /PC - The appellant is also rightly held guilty of the offence punishable u/s. 120-B rlw s. 302, /PC - 7 he High Court rightly came to the conclusion that the appellant was responsible for the incident. of shooting inside the Red Fort on the night of 22.12.2000, which resulted in the death of three soldiers of B Army - The Court agrees with the verdict of the trial court as well as the High Court-Arms Act, 1959 - s. 25 - Explosive Substances Act, 1908 - s. 4 - Foreigners Act, 1946 - s. 4 - evidence - Circumstantial evidence-Sentence/sentencing. ss. 121 and 121-A - 'Conspiracy to wage· war against C Government of India' - Explained - Held: Once the prosecution proves that there was a meeting of minds between two persons to commit a crime, there would be an emergence of conspiracy ,.... The fact that barely within minutes of the attack, the BBC correspondents in Srinagar and Delhi were D informed, proves that there was a definite plan and a conspiracy - It was undoubtedly an extremely well-planned attempt to overawe and to wage war against the Government of India - Some of the associates of the appellant were killed and others are absconding - Thus, the case of the E . prosecution that there was a conspiracy to attack the Red Fort and kill innocent persons, was not affected even if the other accused persons who were alleged to have facilitated and helped the appellant, were acquitted. Sentence/Sentencing: Rarest of rare case - Attack on Indian Army stationed in Red Fort· - Three soldiers killed by intruders - HELD: High court concurred with the finding of the trial court that this was F a rarest of the rare case - This was a unique case where Red G Fort, a place of paramount importance for every Indian heart was attacked where three Indian soldiers lost their lives - It was a blatant, braze,nfaced and audacious act aimed to over awe the Government of India - Therefore, this case becomes a rarest of rare case - This was nothing but an undeclared H 58 SUPREME COURT REPORTS [2011] 10 S.C.R. A war by some foreign mercenaries like the appellant and his other partners, in conspiracy, who either got killed or escaped - The Court is in complete agreement with the findings regarding the incriminating circumstances as recorded.by the High Court - The case satisfies both the tests, namely, s shocking the conscience of the community and crime of enormous proportion, as multiple murders were also committed - The sentence of death awarded by courts below is upheld - Penal Code, 1860 - s.121, 121-A, 120-B/302. c EVIDENCE: Circumstantial evidence - Principles explained - Red Fort attack - HELD: Cartridge cases found inside the Red Fort and AK 56 rifles found o
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