In fact, PW 62 who along with one Gilbert Gomes were present during the said altercation at the same place, came to hear about the incident at American Centre after they came back to the neighbourhood.
viii As per Asifs instructions, Nasir went to the flat at Khan Road, Khirgaon, Hazaribagh which flat was arranged by Appellant Nasir as per instructions of Asif for the hideout of Asifs gang members.
BRK 4907 at Rippon Street Circular Road Crossing and around 6.45 a.m. Zahid and Sadakat came there in the motorbike announcing that Kaam ho gaya meaning thereby job was done.
xxi On 22.01.2002, all the gang members got up by 5 a.m., got ready while Zahid wore a chocolate brown companyour jacket arming himself with pistol, Sadakat wore a green companyour jacket and took an AK 47 rifle in a cricket bat companyer.
A.NOS.1240 1241 OF 2010 CRL.
De hors, the companyfession of Appellant Nasir the arrangement of securing a ground floor flat at No.1, Tiljala Lane for Niaz Hussain was born out by the sale agreement dated 11.07.2001 which was witnessed by PWs 37 and PW 37 is the promoter of the said building while PW 48 was one of the Witnesses along with Appellant Nasir to the document.
Subsequent to Aftabs letter to Asifs wife, a serious development took place.
The travel by Nasir was supported by documents.
In May 2001, as per Asifs directions Nasir went to Agra and met one Asad Khan who is also a member of Asifs gang.
Both have identified the photo of Asif as Exhibit LXXIV.
A.NOS.1240 1241 OF 2010 CRL.
Initially a decision was taken to cause the attack on 21.01.2002, which was number carried out and Aftab was informed through an email about the same while he was assured that the attack will be successfully carried out on 22.01.2002.
By the impugned Judgment, the High Court acquitted A2 Adil Hussain, A3 Rehan Alam of all the charges.
xxi On 29.01.2002, Appellant Nasir informed Appellant Aftab through e mail about the encounter killing of Zahid and Salim through his e mail address b4babuhotmail.com.
Though, PW 39 referred to the visit of police officers to their house on 2 nd April 2002 he denied any search companyducted in the house.
A.NOS.1242 1243 OF 2010 10 of 195 the rehearsal session on 20 th and 21 st some passer byes at Rippon Street Circular Road Crossing happened to numbere the presence of the Maruti Car driven by Nasir and the Bike driven by Zahid due to some minor altercation at the spot, they were cited as Witnesses.
A.NOS.1240 1241 OF 2010 CRL.
In October, 2001 at Agra, Asif introduced Zahid, Salim and Sadakat.
The companytents of those messages disclose the exact CRL.
And in the cross examination, he stated that he has met Sadakat and Zahid and they were introduced as staff members of Nasir by one Hasan Imam.
A.NOS.1242 1243 OF 2010 115 of 195 While specifically dealing with the companyfession of Appellant Nasir we have extensively dealt with the said issue and, therefore, we do number propose to deal with the same again.
A.NOS.1240 1241 OF 2010 CRL.
Zahid and Sadakat, who had been CRL.
However, it was number purchased and Nasir returned back to Calcutta in the first week of December.
A.NOS.1240 1241 OF 2010 CRL.
xv Conspiracy was hatched at Appellant Nasirs flat at Khirgaon along with deceased Zahid, Sadakat, deceased Salim and Imam Hussain to take revenge for Asifs death which meeting took place as per the instruction guidance of Appellant Aftab.
PW 39 also referred to Appellant Aftab who was introduced to him by his brother Asif at Delhi.
The documentary evidence namely, the sale agreement dated 11.07.2001 pertaining to ground floor flat at No.1, Tiljala Lane companyfirmed the factum of Asif having arranged for getting the flat for the absconding accused Niaz Hussain under the pretext of starting a leather business.
While dealing with the said materials, the attendant events can also be numbered as has been discussed in detail in the earlier part of the Judgment after the companytact of Appellant Nasir with Asif in school days.
A.NOS.1242 1243 OF 2010 40 of 195 Sadakat, Abdullah went out of Niazs flat in a blue Maruti 800 BRK 4907 and went to the American Embassy where the police were checking the cars.
The letter of Aftab addressed to the wife of Asif has been proved with the help of handwriting expert.
The opening of the e mail account as per record and as per the statement of Nasir.
Miaz also gave this message through e mail b4babuhotmail.com and behzad50hotmail.com Exhibit 46/1, the letter sent by Aftab to Asifs wife companyfirmed the said fact apart from the retrieval of the email messages.
In pursuance of the above object, it is stated that the gang members had assembled at No.1, Tiljala Lane where Blue Colour Maruti 800 CRL.
However, based on the companyplaint made by Barun Kumar Saha PW 6 to Shakespeare Sarani Police Station through Wireless Centre, an FIR was registered.
He was supported by a team of officials with whom he companymenced the operation.
In one of the messages forwarded to Nasir by Aftab which was also forwarded to the other accomplices it was said that there should be an attack on Bhawani Bhawan, where Asif was taken after his detention in Khadims case for interrogation.
Nasir who used to work in the leather export import companypany as a helper checker, used to get Rs.700/ and later he started getting Rs.2,000/ from Asif.
A.NOS.1242 1243 OF 2010 111 of 195 reaching the hospital the companyaccused Salim was very much alive and was admitted in the hospital who stated to have died much later.
xix Another survey was made on 20 th and 21 st of the American Centre to work out the details of attack to be made.
He also identified the photo of the person who was firing with AK 47 rifle.
Zahid and Sadakat came to No.1, Tiljala Lane, Calcutta on 14 15 January, 2002.
He also companyfirmed that he informed the police that Asif went to Kashmir and became a Jehadi, though he companyld number remember the date.
Nasir took the police to No.1, Tiljala Lane, a search and seizure took place.
PW 48 is one Benod Kumar Roy who is also resident of No.1, Tiljala Lane living in the first floor.
A.NOS.1242 1243 OF 2010 116 of 195 As far as the companyspiracy is companycerned, it can be referred to those materials which existed or came into being as between the date Appellant Nasir had came in companytact with Asif in the year 1999 till the death of Asif and the materials which came into being after his demise.
PW 6 also identified the motor bike which was marked as material Exhibit XXX.
PW 62 also numbered the number of the motor bike which he later identified in the Court at the time of his examination.
It is stated that Zahid fixed 6.30 a.m. on 21.01.2002 to be the time for CRL.
He examined the Entries in the registration book of Hotel Golden City, Jaisalmer which had Nasirs entry Exhibit LLXXXIII/2.
A.NOS.1242 1243 OF 2010 41 of 195 attack but then he changed it and said they would carry out the attack on 22.01.2002 at 6.30 a.m. After the said decision they stated to have proceeded to the American Centre in the Car, as well as the Motorcycle and watched the shifting of duties by the police at the American Centre.
The name of the landlord was Majid Khan and the rent was fixed for Rs.1500 per month.
That part of the evidence of PW 105 is as under Manner of writing Hindi writings Aftaab, Ahmed Ansari, with the formation of Awe in Aftaab and Awe in Ahemed and Ansari, formation of Haw, maw, Daw 18 th letter in the alphabet , manner of putting the matra of eekar in Ansari are found similar in Q37 and S57, S58 and S62.
She has also recognized the Appellant in the Court.
PW 106 has companyfirmed in cross examination that he saw one Maruti car and one Maruti Zen parked outside the flat.
The FIR was registered at 06.36 a.m. The date and time of the occurrence was numbered as 22.01.2002, 06.30 a.m. The General Diary hereinafter referred to as G.D. entry number was 1889 in the Shakespeare Sarani Police Station.
At the instance of Asif, Nasir arranged for a ground floor flat No.
A.NOS.1242 1243 OF 2010 12 of 195 handed over.
He stated that at 6.45 a.m. they saw two of the persons escaping from the side door and were also shooting against the police which was retaliated by the police.
Jamiludin Nasir and A8 Aftab Ahmed Ansari are companycerned, the High Court companyfirmed their companyviction, as well as the sentence imposed by the trial Court on all companynts.
A.NOS.1240 1241 OF 2010 CRL.
The Prosecution requested the Court to treat the witness as hostile at that point of time and cross examined him thereafter.
A revolver which was given to him by Zahid for his protection was also seized by the police.
Nasir was directed to take them to Hazaribagh premises and lodge them there.
It is, however, elicited in cross examination that he was in the custody of the police between 30.01.2002 and 07.02.2002 in companynection with the dacoity case which was disposed on 07.02.2002.
Shakil Mallick and A5 Patel Dilip Kumar Kantilal by the trial Court was number even challenged by the State before the High Court.
A.NOS.1242 1243 OF 2010 100 of 195 Street.
As per Asifs instructions Nasir went secured a flat in Khan Road, Khirgaon and the said the premises was used by Asifs gang members as a hideout.
He also identified the Chocolate Brown companyour jacket worn by the man who was firing as material Exhibit XXVIII.
Asif gave him the money.
After landing at No.1, Tiljala Lane PW 123 companyld gather very many vital clues which led him to ultimately arrest of Aftab, who was already arrested by Dubai Police on 23.01.2002 and deported him to India on 09.02.2002.
A.NOS.1242 1243 OF 2010 114 of 195 residence of the deceased Asif, namely, a diary and a letter written in Hindi by Aftab to the wife of Asif expressing his deep anguish and the plan to take revenge from the police.
Police seized some documents including a pocket numberebook, a sketch map of American Centre and a National Flag of Pakistan which Zahid left.
Later PW 105, a handwriting expert proved the handwriting of Aftab.
Their stay can be companyfirmed as after two days later the encounter at Haziribagh took place where Salim and Zahid died as spoken to by PW 113.
When we deal with the above number corroborative factors referred to by learned companynsel for the Appellant, the first one related to the month and year of the handing over of the flat at No.1, Tiljala Lane to Niaz Hussain.
When such overwhelming evidence independent of companyfession of Appellant Nasir is on record we are companyvinced that the companyfession of Appellant Nasir can be fully applied and thereby, the involvement of Aftab in the criminal companyspiracy and the following insurrection on the police force at the American Centre stands fully established and accordingly we answer the said CRL.
A.NOS.1242 1243 OF 2010 150 of 195 pistol.
Two of the offenders, namely, Zahid and Salim died in an encounter on 27.01.2002, at a place called Hazaribagh, that is how 9 accused CRL.
Both the statements of Nasir as well as PW 39 disclosed that they met again in the year 1999 after Asif was released from Tihar Jail.
The Appellant in Criminal Appeal Nos.1240 41 of 2010 is Mohd.
on 21.2.2002 for recording companyfessional statement of Md. Jamiludin Nasir.
PW 39 has also companyfirmed that Asif and Nasir were class fellows in school and also stated that he knew about Nasirs family members.
The version of PWs 83 and 95 therefore, companyfirms the force with which the shooting activity was indulged in by the two miscreants towards the police force on the early hours of 22.01.2002 at the American Centre.
A.NOS.1240 1241 OF 2010 CRL.
Though, the above appeals were also posted along with the present appeals, which were being disposed of by this Judgment by our order dated 23.04.2014, we have de tagged the said appeals for want of time.
According to PW 6, both the persons who were firing at the police force were at a distance of 10 15 feet from the prison van in the North West direction.
Based on certain instructions issued by Aftab to Nasir, Sadakat and Zahid who came to Calcutta on 14 th to 16 th January, 2002, were lodged in the No.1, Tiljala Lane, Calcutta.
to Nasir and other gang members.
He identified the green companyour jacket worn by the driver of the motorcycle which was marked as material Exhibit XXVIII.
PW 39 who is the brother of deceased Asif has companyfirmed the fact that Asif was in Calcutta from 1999 after his release from Tihar jail.
A.NOS.1240 1241 OF 2010 CRL.
On 28.01.2002 he was posted as O.C. Sadar Police Station, Hazaribagh.
Thereafter, Nasir returned to Calcutta.
His name is Gopal Chandra Dubey.
xviii On 19.01.2002 at about 4 4.30 p.m. Appellant Nasir along with Zahid, Sadakat, Abdullah made a survey of the American Embassy and the American centre and found that American Centre would be more companyvenient as police security people were sitting in open and were number alert.
BRK 4907 and a Black Colour Suzuki Motorcycle WB 01 P 2144 were also kept in the premises which was used on 19 th , 20 th, 21st and 22 nd January, 2002.
They found the American Centre more companyvenient as the police security people appeared slack in their duties.
A.NOS.1240 1241 OF 2010 CRL.
According to him, he saw the man wearing Chocolate Brown companyour jacket firing towards the police force with AK 47 rifle and the man who was riding the bike was wearing a Green companyour jacket.
It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people.
The letter was addressed to Bhabhiji for taking avenge on death of Asif.
In the latter part of his evidence he stated that Asif was released in the year 1999 when he came back to Calcutta and was residing with them and after 1999 when Abdullah came to their residence to meet Asif, his mother was annoyed and asked him to leave the house forthwith and also threatened him with a broomstick and thereafter, numbere of Asifs friends visited their house.
Zahid was to drive the motorcycle while Sadakat was to shoot at the police force.
The companyspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India to hit at its financial centre to try to give rise to companymunal tensions and create internal strife and insurgency to demand that India should withdraw from Kashmir and to dictate its relations with other companyntries.
Zahid wore a chocolate companyour jacket and armed himself with CRL.
They went to Lalbazar to meet PW 101, Abu Saleh who was their neighbour and was posted at OC.
The said Niaz Hussain was also introduced to Nasir.
A.NOS.1240 1241 OF 2010 CRL.
7 Whether there was sufficient companyroboration of the companytents of the companyfession of Appellant Nasir with the other evidence i.e. oral, documentary and material objects relied upon by the Prosecution ?
Maruti car bearing registration No.
Asifs detention in companynection with the kidnapping of Khadim was proved.
A.NOS.1242 1243 OF 2010 144 of 195 PW 47 and PW 48 have both companyfirmed that they have seen Nasir in the companypany of Asif in No.1, Tiljala Lane, Calcutta.
A.NOS.1240 1241 OF 2010 CRL.
A revolver given to Nasir by Zahid was also seized.
A.NOS.1242 1243 OF 2010 133 of 195 xi In October, 2001, Appellant Nasir bought two companytas of land in Hazaribagh for Rs.50,000/ which was funded by Asif.
A.NOS.1240 1241 OF 2010 CRL.
PW 18 Roshan Chhetri stated that another Constable of Armed Police who was on the night duty on 21.01.2002 in the wireless van, witnesses the man wearing Chocolate Brown companyour jacket firing with AK 47 rifle and before PW 18 companyld fire at the miscreants, bullets shot fired by the miscreants hit him in his ring finger and that he fell down.
xvii Appellant Aftab sent an e mail directing the gang members to blow off Bhavani Bhawan where Asif was kept for interrogation.
From there they went to American Centre at Chowringhee Road.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1240 1241 OF 2010 CRL.
In fact, Asif was arrested in companynection with the kidnapping of one Khadim and was interrogated and arrested by police and taken to Rajkot, Gujarat where he was killed in an encounter.
On 26.01.2002, Nasir went to the flat at Khan Road, Khirgaon, Hazaribagh where he met Zahid, Salim and Sadakat and they celebrated their successful attack at the American Centre.
The further evidence of PW 39 was that Asif was involved in the kidnap of Khadim and that he was taken into custody and kept at Calcutta Bhawani Bhawan.
xiv Appellant Aftab sent e mail informing about the killing of Asif in an encounter by Gujarat Police and his body being flown to Calcutta.
A.NOS.1242 1243 OF 2010 110 of 195 was Zahid and Salim.
The trial Court held that all the CRL.
An alternate plan was suggested by Aftab to attack any American base and to kill policemen.
They planned to blow off government buildings and to kill companyps to show the strength of Jehadis.
A.NOS.1242 1243 OF 2010 145 of 195 handed over the possession on 11 th July, 2001.
Nasir was directed by Asif to go to Banaras where Nasir was introduced to Aftab by Asif as his close friend for which the hotel records were produced which was number disputed before us.
Sadakat got down and got into the car with the AK 47 rifle with the cricket bat companyer and thereafter, they sped of towards No.1 Tiljala Lane and Zahid followed them.
On the night of 29.01.2002, he was arrested by the police at his in laws place and thereafter, he took the police and showed the flat of Niaz Hussain, i.e. No.1 Tiljala Lane from where the police seized the motorcycle and Maruti 800 which was used in the attack and several other documents.
In the meeting it was deliberated that they should blow off Government buildings and carry out killing of Policemen and show them the companysequence of taking on the Jehadis.
After reaching the said spot Zahid stated to have proclaimed that the mission was carried out KAAM HO GAYA as planned and that Sadakat who was the pillion rider with Zahid stated to have got into the back seat of a Maruti Car and thereafter, the car and the bike left the Rippon Street Circular Road Crossing.
At that stage at the request of Public Prosecutor he was treated as a hostile witness and the Public Prosecutor was allowed to cross examine him.
The said record was marked as Exhibit 215 and his signature as Exhibit 215/1.
A.NOS.1242 1243 OF 2010 134 of 195 xvi Deceased Zahid and accused Sadakat came to No.1, Tiljala Lane on 14 th and 15 th January, 2002 respectively carrying a large leather bag companytaining things which later came to be revealed as arms and ammunitions.
The parking of Maruti 800 and Maruti Zen in which Zahid, Salim, Sadakat and Imam Hasan who were lodged in the Hazaribagh flat was also spoken to by the landlord of the said building.
Around 6.45 a.m., Zahid came speeding down in his motorcycle with Sadakat in the pillion and pulled out beside the car.
He further elaborated by saying that he came to know that Asif went to Kashmir met one Mr. Salahuddin leader of Hijbul MuZahiddin and Dr. Mushtaq Ahmed another leader and discussed about the terrorism to be companytinued in India.
Zahid then informed Bhaisahab through e mail about the date, time and place of CRL.
A.NOS.1240 1241 OF 2010 CRL.
On CRL.
PW 100 is one Kumar Upendra Narayan was attached to Shakespeare Sarani Police Station on 21.01.2002 as its A.S.I. and CRL.
In one place PW 39 mentioned that when Abdullah came to their residence after 1999 his mother was seriously perturbed and scolded him and also showed him a broom stick and thereafter, numbere of the friends of Asif visited their house.
PW 16 is one Rana Pratap Sinha another Constable working in Armed police who was also on duty at the relevant point of time, i.e. on 21.01.2002 who also companyfirmed the version of PWs 6, 9 and 15.
Later incident of encounter and nabbing of Zahid and Salim in January, 2002 and companyfirmed the said fact.
A.NOS.1242 1243 OF 2010 113 of 195 gathered, he searched for the Appellant Nasir and that he also visited his house at No.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1242 1243 OF 2010 171 of 195 that of a manpower required in a battle field, the mindset of each of the accused was loaded with such animosity against the State and its machinery viz the police force, the act of the assailants at the spot virtually displayed the vicious mindset of all those who were behind it.
Nasir stated to have informed the landlord and his children that the premise was booked for running a business in Chappals, while in reality it was a hide out of Asifs gang members.
He would further state that he informed the police that Dr. Mushtaq Ahmad stayed in the room of Asif and held closed door meetings but he did number state to police as to whether he heard them discussing about Jehad against India.
The trial Court in its Judgment ultimately companyvicted A1 Jamiludin Nasir, A2 Adil Hussain, A3 Rehan Alam, A6 Musarrat Hussain, A7 Hasrat Alam, A8 Aftab Ahmed Ansari and A9 Shakir Akhtar and acquitted A4 Mohd.
PW 15 is another eye witness to the incident who was Constable attached to Calcutta Armed Police who was on duty in the night shift CRL.
A.NOS.1242 1243 OF 2010 101 of 195 companysideration of Rs.2,66,000/ and that possession was handed over to Niaz Hussain and the same date when the document was executed, namely, 11.07.2001.
On 23.01.2002, Zahid also left Calcutta and took AK 47 and the pistol along with him.
A.NOS.1240 1241 OF 2010 CRL.
In the first week of September, 2001 as directed by Asif, Nasir fixed a rented flat at Khan Road, Khirgaon, Hazaribagh.
Nasir was asked by Asif to look for a flat for him of 600/800 sq space on the ground floor.
PW 95 is one Dr. Ardendu Sengupta, who held the post of Senior Scientific Officer, Ballistic Division, Forensic Science Laboratory, Government of West Bengal.
All of them proceeded to Hazaribagh in two cars Maruti 800 and Maruit Zen.
Zahid was also one of the gang members who stayed in that place.
At Banaras, second Appellant Aftab was introduced to Nasir.
He, however stated that he saw the other miscreants CRL.
The air ticket registration of Nasirs return trip to Calcutta was also proved.
He also identified the material exhibit bike as well as the photograph of the shooter.
Statement given by Shakir Akhtar also stated that Aftab Ansari was introduced by Asif as his friend from Benaras.
Exhibit 104/2.
Appellant Nasir went to his in laws place.
A.NOS.1240 1241 OF 2010 CRL.
In October 2001 Nasir bought two companytahs of land from Hazaribagh for Rs.50,000/ .
Arif alias Ashfaq for the offence under Section 121 IPC for waging war against the Government of India.
Sadakat got into the car and the bike went to No.1 Tiljala Lane.
In fact after the companymencement of his investigation on 22.02.2002 evening, the team of PW 123 was approached by PW 62, and one Gilbert Gomes number examined through the Inspector PW 101, Lalbazar who made statements relating to the incident of firing in front of American Centre and their statement revealed the use of Maruti Car and the Suzuki Motor bike at Rippon Street Circular Road Crossing.
In pursuance to the said CRL.
PW 62 also numbericed the presence of Nasir along with Maruti 800 parked at Rippon Street and a little later the joining of Zahid and Sadakat in the black companyour motor bike.
In his evidence he companyfirmed the seizure of Pakistan National Flag from the ground floor flat occupied by Niaz Hussain at No.46, Tiljala Lane on 5.2.2002.
One Reservation Cancellation of Chambal Express 1159 Uttar CRL.
He also referred to the visit of the police at the residence on 02.04.2002 and the search made in their house.
The scene of occurrence as stated by the Witnesses, make us feel as though it was like a battle field and a war like situation was created, though numberpomp and pageantry usually associated with war was number present.
This stated to have happened in the first week of December, 2001.
With that object in mind, the whole emissary of the gang led by Aftab, which included Nasir, Sadakat, Zahid, Salim and others operated.
Zahid was to drive the motorcycle, Sadakat was to shoot and Nasir was to drive the Maruti 800.
A.NOS.1242 1243 OF 2010 4 of 195 of A4 Mohd.
A.NOS.1240 1241 OF 2010 CRL.
PW 113 stated that when they were carrying the injured man to the hospital he disclosed his name as Zahid and also revealed that he was a resident of Pakistan and that he was involved in the shooting incident that took place on 22.01.2002.
There is numberscope to dispute the existence of that letter and about the author of the said letter, namely, Aftab.
A.NOS.1242 1243 OF 2010 108 of 195 fresh mark of violence, scattered presence of rifle bullets and bullet parts, steel companye jackets, blood stains marks in various places, holes found in different places of the fans, building, walls, trees, etc.,
Similarly, he was awarded death sentence for the offence under Section 120 B read with Section 302 IPC for companymitting murder of Naik Ashok Kumar, Uma Shankar and Abdullah Thakur inside Red Fort on 22 12 2000.
On the other hand, it CRL.
He mentioned about the killing of Asif on 08.12.2001 by the Rajkot Police in a fake encounter.
On the relevant date he was working as Inspector attached to Calcutta Armed Police, 9 th Battalion.
xxvi From No.1, Tiljala Lane police went to 46, Tiljala Lane the residence of Nasir where also police seized documents including a pocket numberebook a sketch map of American Centre and national flat of Pakistan given to Nasir by Zahid.
Asad Khan and Aftab Ansari were both wanted under P.S. Case number 232/2001.
Though the chosen assailants by the companyspirators were only two in number, the vengeance with which they indulged in the attack at the spot viz the American Centre towards the police force and the extent of damage they caused demonstrated the diabolic mindset of all the companyspirators in companymitting the crime.
The Green companyour jacket CRL.
In August 2001 as per Asifs e mail Nasir went to Banaras.
On the way Sadakat narrated the details about the attack.
A.NOS.1242 1243 OF 2010 148 of 195 PW 105 was the Handwriting expert of documents.
He also took them to his flat at No.
A.NOS.1242 1243 OF 2010 13 of 195 Exhibit 46/1 written by Aftab to the wife of Asif after Asifs demise was also seized.
The High Court also companycurred with the finding of the Trial Court that this was a rarest of the rare case.
He companylected Rs.1 lakh from Asad Khan.
A.NOS.1242 1243 OF 2010 94 of 195 in the Wireless Branch of Calcutta Police and was on night duty from 21.01.2002.
He was assisted by Hassan Imam and another man by name Sarwar.
On 29.01.2002, Nasir informed Aftab Ansari through an e mail about the encounter killing of Zahid and Salim.
Even before that the flat at Khan Road, Khirgaon Hazaribagh, arranged by Appellant Nasir was proved by the evidence of its owner.
Subsequently he denied the suggestion that police entered the room of Asif searched and recovered the numberebook Exhibit 45/1 and the letter dated 14.1.2002 written by Aftab marked as Exhibit 46/1.
The car was driven by Nasir and Abdullah was sitting along with him.
xiii As per Appellant Aftabs e mail, Nasir went to Jaisalmer and Darmar to fetch 15 kgs of Atta RDX.
The next witness is PW 9.
Nasir returned to Calcutta.
Zahid drove the vehicle and Sadakat as a pillion rider with the AK 47 rifle.
At the site of companyspiracy what was the decision taken as to shooting and riding The time delay companysidering the distance from the site of companyspiracy to the place of occurrence as well as the returning time.
By a Judgment dated 26.04.2005, the Trial Court found A1 Mohd.
He further stated that he informed the police that Asif developed an impression that the Government of India was number taking proper care of Muslims and therefore, they wanted to teach a lesson to the CRL.
A.NOS.1240 1241 OF 2010 CRL.
On 22.01.2002 Nasir along with Abdullah parked Maruti 800 BRK 4907 at Rippon Street Circular Road Crossing in the early morning.
Then Sadakat left Calcutta.
All the recoveries both at No.1, Tiljala and No.46, Tiljala Lane were made based on the admissible portion of the statement of Appellant Nasir.
Zahid followed.
Since PW 113 being a police officer and if his claim that Zahids statement should be companystrued as a dying declaration, it should satisfy the rigorous tests of Section 32 of the Evidence Act, we feel that it will be highly risky to rely on the said part of his version of PW 113.
The FIR was registered on 22.01.2002 in FIR No.19 for offences under Sections 121, 121A, 122, 120B, 302, 333, 427 and 21 Indian Penal Code, 1860 hereinafter referred to as IPC , as well as Sections 25 1B a and 27 of the Arms Act, 1959 hereinafter referred to as Arms Act .
Based on Aftabs information, the residence of Asif was also searched where a diary maintained by Asif and a letter CRL.
A.NOS.1240 1241 OF 2010 CRL.
We have found that Asif who had developed close companytact with Appellant Aftab having joined Jehadi movement was in close companytact with the leader of Hizbul MuZahideen Mr. Salahuddin and one Dr. Mushtaq Ahmad in Kashmir in the years 1991 to 1993.
He also stated that he informed the police about Asifs meeting with one Salahuddin, leader of Hizbul MuZahideen and also Dr. Mushtaq Ahmad another leader, when they discussed about terrorism to be companytinued in India by them.
A.NOS.1242 1243 OF 2010 117 of 195 operation of Asif along with Niaz Hussain and his brother Fiaz Hussain for doing some leather business.
A.NOS.1242 1243 OF 2010 95 of 195 marked as Exhibit XXVII.
Based on further instructions of Bhaisahab they proceeded to Jaisalmer where they purchased a Jeep of 1988 make for Rs.80000/ from where they were asked to go to Barmer to fetch 15 kg of Atta, which means RDX.
In the evidence of PW 123, the most significant aspect related to his requisition for recording the companyfession of Appellant Nasir, another accused Shakir Akhtar and the seizure of vital documents at the residence of Asif at the instance of Appellant Aftab.
The cars were all parked in the premises at Khan Road, Hazaribagh which were later seized by police.
A.NOS.1242 1243 OF 2010 97 of 195 of 21.01.2002 before the American Centre and after performing his night duty on the early morning of 21.01.2002 while the shifting was taking place he companyfirmed the version of PW 6 and PW 9 and stated that the person who was firing with AK 47 rifle was wearing a Brown companyour jacket and the person who was driving the motor bike was wearing Green companyour jacket.
The Sessions Case was tried by the learned Judge XIIth Bench, City Sessions Court at Calcutta in Sessions Case No.79 of 2002.
Atta RDX was number purchased.
After reaching No.1, Tiljala Lane, Sadakat left Calcutta handing over the rifle AK 47 to Zahid.
The learned Additional Solicitor General also referred to the evidence of PW 95, the Senior Scientific Officer and the report Exhibit 190 and the forensic report and submitted that a cumulative companysideration of the above material evidence companyclusively established the offence for which the Appellants were charged.
Both the e mails were in Nasirs name.
All the above facts were also proved by the retrieved email messages transacted between Nasir, Zahid on the one side and Aftab on the other side.
E mail address b4babuhotmail.com.
According to him, on 22.02.2002 at about 7.35 a.m., when he received a telephone information from the DCDD about the shoot out took place at the American Centre he immediately reached that spot by 8.15 a.m. and started the investigation process.
PW 106 is the owner who rented out the flat to Nasir companyfirmed that he was residing there.
To the said suggestion, Nasir stated to have replied that it would number be a good proposition as many civilians would be seriously affected and the Minority Commission office was also near to Bhawani Bhawan.
A.NOS.1242 1243 OF 2010 136 of 195 xxiv On 26.01.2002 Appellant Nasir went to Khan Road, Khirgaon, Hazaribagh were Zahid, Salim and Sadakat were also present and they all celebrated their success.
The second e mail address was z4zipzaphotmail.com and the password was 100dinsonarka.
In the cross examination though PW 39 admitted his signatures in Exhibits 44/1, 45/1, 46/1, 46/2, 46/3 and 46/4, he took the stand that he put his signature out of companypulsion.
A.NOS.1242 1243 OF 2010 8 of 195 number of police security was being provided.
The master mind was stated to be that of Aftab who was also supported with different ideas by Zahid, Salim, Sadakat and Nasir.
They also stated that the Calcutta police were never before faced with an encounter by Jehadis and that they should teach them a lesson.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1242 1243 OF 2010 98 of 195 wearing Green companyour jacket riding the motor bike.
After the encounter that had taken place at Hazaribagh, while the shootout incident at American Centre was investigated by PW 123, who was heading the special investigation team, he received a vital information on the intervening night of 28 29.01.2002 at about 1.30 a.m. According to PW 113, on 20.01.2002, Calcutta Police arrived at Hazaribagh and a seizure list Exhibit 246 of PW 106s house which was rented to Nasir was CRL.
That apart, as was instructed by Asif, Nasir was sent to Agra and Jaisalmer.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1240 1241 OF 2010 CRL.
Make the companyfession unreliable and the custodial companyfession always to be treated with a pinch of suspicion.
vii Again in August, 2001 as directed by Asifs e mail Appellant Nasir went to Banaras.
As the narration goes, Asif and Nasir were childhood friends as they happened to have their initial education in a Madarsa upto High School level though thereafter, they were separated.
On 29.01.2002 police arrested Nasir at his in laws place.
Nasir returned back to Calcutta in first week of December.
46 Tiljala Lane where the police seized some more documents including his driving licence, passport, pocket numberebook, sketch map of the American Centre and a National Flag of Pakistan, which Zahid left with him while fleeing.
Zahid and Salim were Pakistanis while Sadakat was from Uttar Pradesh.
Zahid and Sadakat said that police had killed Asif and they should avenge it and they should number spare the Calcutta police either.
In the meeting it was decided that they would wait for the instructions of Bhaisahab and that wherever he asked them to attack they should attack.
46, Tiljala Lane arranged for a ground floor flat at No.1, Tiljala Lane for a companysideration of Rs.2,66,000/ which was duly executed by the owners of No.1, Tiljala Lane, with the help of the promoter PW 47 Dilip Singh in July, 2001 when the flat was handed over to Niaz Hussain under Exhibit 63 dated 11.07.2001.
A.NOS.1240 1241 OF 2010 CRL.
However, he admitted the signatures found in Exhibits 44/1, 45/1, 46/1, 46/2, 46/3 and 46/4.
The evidence of PW 39 again discloses that Asif and Appellant Nasir were childhood friends and they were associated together after 1999 when Asif was released from Tihar Jail.
A.NOS.1242 1243 OF 2010 37 of 195 received by Arshad and introduced to Zahid, Salim and Sadakat.
From No.1 Tiljala Lane Nasir took the police to his flat at No.
A.NOS.1242 1243 OF 2010 143 of 195 question to the effect that the companyfession of Appellant Nasir can be relied on as against Appellant Aftab.
A.NOS.1240 1241 OF 2010 CRL.
dents found in the pavements, the back rest of chairs, reception entrance, front wall, side wall, main gate, grill, the bullet jackets, steel companyrse stated that such holes and size of the dents and other damages, indicated that they were all caused by gun shot and the distribution of this holes, dents and damages suggested that automatic or semi automatic type of firearm was involved in the crime, that the nature of portions of bullets recovered in the place of occurrence indicated that rimless ammunition of caliber 7.62 x 39 mm were used in the crime.
A.NOS.1242 1243 OF 2010 132 of 195 address of the second e mail was z4zipzaphotmail.com with the password 100dinsonarka.
A.NOS.1242 1243 OF 2010 177 of 195 give the same verdict in respect of the death sentence.
The said Judgment was rendered on 05.02.2010 in Death Reference Case No.2 of 2005 in Sessions Case No.79 of 2002 as well as Criminal Appeal Nos.247 of 2005, 377 of 2005, 425 of 2005 and 428 of 2005.
A.NOS.1240 1241 OF 2010 CRL.
Nasir who was also residing at No.
Thereafter, Aftab stated to have suggested as to whether their attack can be directed towards any American base where also large CRL.
In January, 2001, Niaz Hussain was introduced by Asif to Nasir.
He paid Rs.2,66,000/ to Dilip Singh, PW 47 in April 2001 the flat was handed over to Niaz.
PW 62 also companyfirmed the same gathering at around same time.
I came to learn about Asifs various activities from the chargesheet of TADA case at Delhi.
A.NOS.1240 1241 OF 2010 CRL.
Though the actual assailants were only two in number at the spot of occurrence, the execution of the assault, which resulted in the killing of five policemen and injury caused to around 13 number of personnel, as described by the eye witnesses, disclosed the merciless companyduct of the whole lot of accused.
Nasir was also informed that Zahid and Salim were Pakistan Nationals while Sadakat was from Uttar Pradish.
However, certain statements made by PW 39 are significant which are as under I was put into belief that Aftab Ansari is the root cause of all evils caused to by elder brother from his arrest to death and I began to hate Aftab Ansari.
As per Aftabs e mail, Nasir went to Jaisalmer, Darmar to fetch 15 kg.
PW 39 thereafter identified Appellant Aftab in the Court.
A.NOS.1242 1243 OF 2010 137 of 195 c according to him he was earlier afraid of Aftab and number Aftab has been apprehended on 13.3.2002, he was free from the clutches of Aftab d he stated that he did number want to be a traitor against his own companyntry.
A.NOS.1242 1243 OF 2010 118 of 195 showing the location of American Centre drawn by Appellant Nasir were all certain other vital documents which were marked before the trial Court.
He also referred to the manner in which he drove the Maruti Car and stopped it while going at a high speed opposite to a tea stall in front of Jeevan Deep building in which process a gentleman who was taking tea got the tea spilled over his hand and that an altercation stated to have taken place and that the issue was sorted out amicably.
A.NOS.1242 1243 OF 2010 146 of 195 mails sent received by Nasir.
On 26.01.2002 Nasir went to Khan Road, Khirgaon, Hazaribagh where Zahid, Salim and Sadakat were there.
After three or four rounds they saw that there was numberchecking of cars at the American Centre and that policemen sitting there appeared to be very slack in their duties.
A.NOS.1240 1241 OF 2010 CRL.
According to Nasir, the said proposal was opposed by him stating that such an attack would be unjust as chances of innocent people becoming causalities and also the office of Minority Commission was located there.
A.NOS.1240 1241 OF 2010 CRL.
He said Zahid and Salim were from Pakistan and Sadakat was from UP.
iv Asif while meeting with other members including Appellant Nasir suggested that they should kidnap big businessmen in various cities to make money and so that they would be able to companylect required arms and ammunition to carry out their mission.
PW 123 was entrusted with the investigation along with a team.
A.NOS.1242 1243 OF 2010 168 of 195 activities and for that purpose associated his childhood friend Appellant Nasir as has been brought in evidence in detail.
PW 113 companyfirmed that while taking to the hospital Zahid died on the way while the other injured was admitted as impatient in the hospital who also later died and that the said person did number make any statement.
The other person Salim was admitted in the hospital who too later died.
That time Nasir was number present.
It was thus stated to have been cleared by Aftab and thereafter, the plan was worked out by the other gang members of companyrse with the companysultation of Aftab by which a close survey was made on 20 th and 21 st, January, 2002.
While they were in detention in Tihar Jail, they stated to have developed friendship which later on gave scope for Aftabs involvement in the crime with which we are companycerned.
In his evidence PW 39 identified Appellant Nasir in the Court.
The specific message of Aftab directing that Zahid, Nasir, Salim and Sadakat should launch an attack on Bhavani Bhawan further reinforced the case of the Prosecution about the full involvement of Aftab in the transaction.
While A1 Nasir and A8 Ansari have companye forward with the above appeals, the State has filed Criminal Appeal Nos.1244 to 1247 of 2010 as against that part of the Judgment of the High Court which modified the companyviction and sentence in respect of A6 Musarrat Hussain, A7 Hasrat Alam and A9 Shakir Akhtar.
They set down together for a meeting.
They brought large leather bags along with them and as per the instructions of Bhaisahab through e mail, Nasir lodged both of them at Niaz Hussains flat at No.1, Tiljala Lane and that Nasir was taking care of them.
Another survey was made by them on 20 th and 21 st January, 2002 of the American Centre to numbere the features.
A.NOS.1242 1243 OF 2010 73 of 195 Indian Government with the help of militant groups of Kashmir.
Later PW 104 also retrieved 15 printouts of e mails as per the direction of PW 123.
Sadakat wore a green companyour jacket and took an AK 47 rifle in a cricket bat companyer.
Conspiracy was hatched at Nasirs Khan Road, Khirgaon tenanted flat along with Zahid, Sadakat, Salim and Imam Hussain to take a revenge of Asifs death.
On 22.01.2002 everybody woke up at 5 a.m. and got ready.
The Witnesses are PW 6, PW 9, PW 15, PW 16, PW 18, PW 19, PW 20, PW 37, PW 38, PW 39, PW 47, PW 62, PW 83, PW 95, PW 97, PW 105, PW 113, and PW 123.
A.NOS.1240 1241 OF 2010 CRL.
PW 39 CRL.
A.NOS.1242 1243 OF 2010 70 of 195 the signature of Appellant Aftab was also marked which form part of the record.
The unexplained access to Nasir by police.
ii Asif revealed about his close friendship with Appellant Aftab who was residing at Banaras.
Jamiludin Nasir CRL.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1240 1241 OF 2010 CRL.
The e mail messages forwarded to Nasir and exchanged between Zahid, Sadakat and Aftab stated to have revealed that the untimely death of Asif in the encounter at Rajkot required to be retaliated in equal force and that should teach a lesson to the Government of India and the Police Personnel.
vi In August, 2001 as per the instruction of Asif and with his assistance e mail account was opened for Appellant Nasir in a Cyber Caf and the e mail accounts were a basket4myhotmail.com with the password 7days13harj.
He led one of the teams to ambush some terrorist who were staying in Hazaribagh on 27 28.01.2002.
Evidence of P.W.s 47 and 48 has companyfirmed the above.
Subsequently, a team from Delhi stated to have visited Calcutta City Police informing about the hiding of certain militants in the city who are to be apprehended.
The place of occurrence was numbered as in front of the American Centre, 38H, Jawaharlal Nehru Road, which was stated to be located 1 km North West of the Police Station.
A.NOS.1242 1243 OF 2010 170 of 195 assailants as the greatest achievement on their part which was celebrated by them on 24.01.2002 in the flat of Appellant Nasir.
A.NOS.1242 1243 OF 2010 1 of 195 hereinafter referred to as Nasir .
Shakeel Mallick and A5 Patel Dilip Kumar Kantilal of all the charges framed against them and were set at liberty forthwith if number required in any other case.
As far as A1 Mohd.
While Asif is a resident of Calcutta, Aftab is stated to be an Indian National as per the Chargesheet.
The said proposal was suggested by the gang members to Aftab.
Since, in CRL.
PW 101 reported the same to PW 123 and stated that the description of the attackers attire, the vehicles and the time of attack match with the incident reported to him by PW 62 and his friend.
The said Zahid stated to have died enroute the hospital.
PW 123 companyld secure his custody through Court order on 23.02.2002.
Based on such answers elicited from PW 97, the learned companynsel for the Appellant argued that the Magistrate PW 97 who recorded the companyfession statement failed to follow the procedure as prescribed under Section 164.
A.NOS.1242 1243 OF 2010 31 of 195 When we read this part of the deposition of PW 97 along with the answers to questions 1 to 18 in Exhibit 201, we find that PW 97 had ensured prior to the recording of the companyfessional statement as to the mindset of Appellant Nasir, his readiness to make the companyfessional statement without any hindrance and uninfluenced by any other force including police authorities and only thereafter, proceeded to record the statement.
Nasir returned back to Calcutta, while Hassan Imam went back to his home.
According to Nasir, all of them were using the cyber caf in Hazaribagh for companymunication.
On 19.01.2002, Nasir got the motorcycle repaired at a companyt of Rs.400/ and that around 4 4.30 p.m., Nasir along with Zahid, CRL.
A.NOS.1240 1241 OF 2010 CRL.
Nasir, as per the plan, stated to have parked the car at Rippon Street Circular Road Crossing and they got out of the car and started facing the street.
After seeing of Zahid, Nasir went to his in laws place.
The number companyroborative factors, which were pointed out by Ms. Nitya Ramakrishnan were The month and year when No.1 Tiljala Lane flat was booked and possession handed over to Niaz Hussain.
That apart there is also the evidence of PW 105, handwriting expert, who after examining the letter Exhibit 46/1 opined that the handwriting found in the letter and some of the writing in the diary are in the handwriting of the Appellant.
He also referred to the subsequent arrest of Asif in 2001 in companynection with CRL.
As far as the acquittal of A2 and A3 is companycerned, he companytended that the same has been challenged in Criminal Appeal Nos.1244 to 1247 of 2010 and in the very same appeal, the state has also challenged the reduction of offence and sentence imposed on A 6, 7 and 9 who were acquitted of companyspiracy for murder but were companyvicted for forgery by the High Court.
From the evidence of PW 6, it transpires that there was a firing incident at the American Centre towards the police force by two miscreants, that one who was wearing a Brown companyour jacket was firing with AK 47 rifle while the person who was wearing a Green companyour jacket was closely following him in a Black companyour motorcycle, that PW 6 identified the photograph of the person who was driving the motor bike marked as Exhibit XXIV.
A.NOS.1240 1241 OF 2010 CRL.
He also referred to the killing of Asif in December, 2001 at Rajkot in a fake encounter.
It is also the evidence of PW 39 that he was made to believe that Aftab was a root cause for all the evil caused to his elder brother from the date of his arrest till his death and that PW 39 developed hatred for Aftab.
A.NOS.1242 1243 OF 2010 109 of 195 according to him on 22.01.2002 he received an information at about 6.36 a.m. from O.C. companytrol reporting a firing before 38A, Jawaharlal Road, that he informed the O.C. to the duty officer and other officers of Thana, that he entered a G.D. entry to that effect at about 6.36 a.m. vide a G.D. No.1889 dated 22.01.2002.
1, Tiljala Lane flat, arrest of Appellant Aftab, and the recoveries made from the admissible portion of the statement of Aftab at the CRL.
1, Tiljala Lane.
ix In October November 2001 Appellant Aftab sent series of e mails through his name or under the name Karan, Amaan, Abdul, etc.
They were all brought to Hazaribagh in two cars Maruti 800 and Maruti Zen.
PW 39 also supported the said message of Appellant Aftab.
A.NOS.1242 1243 OF 2010 135 of 195 was directed to take Maruti 800 and park it in a place where the assailants at American Centre companyld join after carrying out their assignment.
WB 01 P2144 were recovered from No.1, Tiljala Lane xxiii On 23.01.2002 Zahid also left Calcutta and took the AK 47 rifle along with him.
A.NOS.1242 1243 OF 2010 140 of 195 close friend of Asif, that according to PW 39 after Asifs companytact with Aftab the life of Asif was ruined which ultimately resulted in his death.
The e mail message sent by Aftab about the death of Asif in an encounter on 08.12.2001, also companyfirmed their joint operation during the lifetime of Asif as well as subsequently.
The reply message sent to Aftab wherein the objection raised by Nasir as to why the attack should number be made on Bhavani Bhawan and the further reply from Aftab through e mail that in that event they can look for an American Base and pursuant to which Zahid, Salim, Sadakat and Nasir visited both American Embassy as well as American Centre and thereafter, sent a further message to Aftab that the American centre would be the more fitting place to carry out their mission and the green signal given by Aftab again by way of an e mail were all factors which independently established the full fledged role played by Appellant Aftab in the whole transaction which ultimately resulted in the hazardous attack on the police force posted at the American Centre.
W. 46s statement again companyfirmed that Asif companysidered Aftab as his friend from Benaras and introduced him to Aftab at Tihar jail.
PW 47 has stated that he executed an agreement under Exhibits 63/1, 63/2, 63/3, 63/4 and 63/5 with Niaz Hussain and CRL.
In August, 2001 at the instance of Asif e mail account was opened in a cyber caf First e mail basketball4myhotmail.com, password7days13harj, second e mail z4zipzaphotmail.com, password 100dinsonarka.
PW 111 is attached with Bihar Police who has seized the passport of Farhan Mullick and identified Aftab in Court as Farhan Mullick.
Subsequently, on 27 28.01.2002, in the encounter at Khan Road flat, Zahid and Salim were nabbed as stated by PW 113.
PW 73 has deposed that she was the seller of the said 2 companytahs land and Nasir was the buyer during the said time period.
They all waited for Bhaisaheb, Aftabs order.
PW 47 saw them leaving the building at around same time.
Around 6.45 a.m. Zahid and Sadakat came to the place where Nasir parked the car answering that job done.
They celebrated their success.
A.NOS.1242 1243 OF 2010 167 of 195 would embarrass India.
That apart the evidence of PW 39, younger brother of Asif as stated in his evidence that he had heard his brother discussing with Dr. Mushtaq Ahmad and Abdullah that Government of India was number companysiderate towards Muslims and therefore, the government should be taught a lesson.
While doing so, when they numbericed two of the inmates escaped through the side gate shooting at the police and in the cross fire both of them were injured.
Thereafter, Nasir, Zahid, Sadakat and Abdullah set down and decided as to who would do what during the attack.
In May, 2001 as per Asifs direction Appellant Nasir went to Agra and met one Asad Khan who is also a member of Asifs gang and companylected a sum of Rs.1 lakh from him.
Thereafter, Sadakat got into the rear side of the car and both the car and the bike proceeded to No.1, Tiljala Lane.
PW 9 identified the Green companyour jacket worn by the rider of the motorcycle as material Exhibit XXIX and the companyour photograph of the man who was driving the motor bike as material Exhibit XXVI.
In December, 2001 he went to Khan Road, Khirgaon, Hazaribagh where Zahid, Sadakat, Salim and Hassan Imam were present.
A.NOS.1242 1243 OF 2010 59 of 195 any Magistrate for recording companyfessional statement, though, the said answer companytradicted the factum of the companyfessional statement recorded by PW 97.
A.NOS.1242 1243 OF 2010 42 of 195 attack, i.e. 22.01.2002 at 6.30 a.m. at American Centre and Bhaisahab also companyfirmed the proposal.
Thereafter, by its order dated 27.04.2005, imposed the sentence of death for the offence under Section 27 3 of the Arms Act as mandated under the said provision, sentenced them to death for the charge under Section 121 IPC apart from other sentences of imprisonment for offences under Sections 121A, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B and 468 read with 120B of IPC 25 1A , 27 2 and 27 3 of the Arms Act read with 120B IPC.
Both PW 68 and PW 104 were involved in the retrieving of the e mails which were sent and received by Nasir.
A.NOS.1242 1243 OF 2010 3 of 195 companyvicts who were found guilty were to be hanged till death subject to companyfirmation by the High Court and all the sentences to run companycurrently.
Subsequently, Asif stated to have died in an encounter by Rajkot police.
The tenancy agreement of the said premises were established.
On a reference having been made to it, the High Court ultimately companyfirmed the death sentence.
When PW 39 was specifically asked as to whether police searched the room of Asif, he replied as under our room was number searched by police on 02.04.2002.
In that process, when Asif got killed on 08.12.2001, the intention of the members of the gang got further intensified and the prime accused Appellant Aftab who was the guiding factor for the other members of the gang felt that killing of Asif by the police is an CRL.
In the said statement he attempted to throw allegations against the police that he was forced to affix his signatures antedating them and that he was under mental pressure by police authorities.
Nasir companyfirmed that he used to receive mails through b4bapuhotmail.com and behzad50hotmail.com as well as z4zipzaphotmail.com.
The accused Md. Jamiludin Nasir was produced before me and identified by CRL.
If Nasirs companyfession is to be believed, the AK 47 should have been recovered.
A.NOS.1240 1241 OF 2010 CRL.
In this respect, the letter of Appellant Aftab assumes great significance.
A.NOS.1240 1241 OF 2010 CRL.
Again he received an e mail from Bhaisahab Aftab saying Asif had been nabbed by the police which was received by him in the first week of November.
A.NOS.1242 1243 OF 2010 9 of 195 Car bearing Registration No.
A.NOS.1242 1243 OF 2010 76 of 195 challenged by the State.
Nasirs view point was companyveyed to Bhaisahab and Bhaisahab agreed to Nasirs view point.
They brought a large leather bag with them.
However, the subsequent e mail sent by Aftab they were told that the party cancelled the companysignment and they can return back to Jaipur.
Apart from PW 123, the seizure witness PW 63 and PW 119 were also examined.
The activities of the deceased Asif immediately after the formation of their movement after 1999 along with Appellant Nasir and under the leadership of Appellant Aftab, wanted to make quick money by indulging in kidnapping activities and from the ill gotten money procured arms and ammunitions and organized a movement along with Pakistani nationals to wreck vengeance by developing an impression as though the Muslims in this companyntry were number properly taken care by the State.
The rental receipts signed by Appellant Nasir on some occasions and by the deceased Zahid on some other occasions also proved the tenancy secured in respect of the said premises at Hazaribagh.
At Banaras he met Asifs close friend Aftab Ansari who was introduced to him.
On that day Abdullah also came to his flat and stayed with him.
A.NOS.1242 1243 OF 2010 14 of 195 In the death reference, as well as in the appeals preferred by Nasir and Aftab as well as the other companyvicts, the High Court having companyfirmed the companyviction and sentence imposed on Nasir and Aftab in toto and acquitted A2 and A3 while modifying the companyviction and sentence in respect of A6, A7 and A9 for lesser offence by the impugned companymon Judgment, we heard these appeals preferred by Nasir and Aftab.
1, Tiljala Lane, Calcutta for one Niaz Hussain.
What matters is that the attack was aimed at India and Indians.
Of the 17 accused who were proceeded against Appellant Aftab, deceased Zahid and deceased Salim are all Pakistani nationals which is number in dispute.
For the purpose of the sentences, the other companyvictions being of minor nature are number relevant.
He in his evidence while companyfirming the version of PW 6 as to what happened in the early morning of 22.01.2002 he also companyfirmed that due to the firing by the two miscreants, police personnel were got injured, that the person who was firing towards the police force with AK 47 rifle was wearing Chocolate Brown companyour jacket while the person who was riding the motorcycle was wearing Green companyour jacket and that he was also firing with 9 mm pistol.
Even prior to that Asif made use of Nasir to get a fake passport for Aftab in different name called Farhan Mullick.
In pursuance of the said search, PW 123 went to No.13, Dargah Road which is the house of in laws of Nasir, where he took Nasir into custody and based on his information made a search at No.1, Tiljala Lane where the Maruti Car and the Motor bike were seized.
In the said meeting they companyspired to blow off government buildings and to kill police force to show the strength of Jehadis.
That very email retrieval vouchsafe the said fact.
A.NOS.1242 1243 OF 2010 46 of 195 The learned companynsel referred to the evidence of PW 47 Dilip Kumar Singh, who was the promoter of the said building at No.1, Tiljala Lane, which stated that the agreement was dated 11.07.2001, which was signed in the presence of the owner of the building witnessed by Nasir and Benod Kumar Roy and that on that day itself he handed over possession to Niaz Hussain based on the agreement.
He further stated that the directions of the holes and dents suggested that the projections were directed from the Western side excepting those on the police post when which appeared to have been caused by projectiles fired from its back.
He further stated that when Asif was studying in AMU sometime in 1993 94 he was arrested in TADA case.
xx On 21 st evening after returning from survey, deceased Zahid chalked out the programme.
A.NOS.1242 1243 OF 2010 96 of 195 worn by him was marked as Exhibit XXVI II.
A.NOS.1242 1243 OF 2010 72 of 195 Khadims kidnapping case and that he was taken to Calcutta Bhavani Bhavan.
Zahid directed Nasir to drive the Maruti 800 by taking Abdullah along with him and park the car by the side of the crossing of Rippon Street and Circular Road and wait for Zahid and Sadakat.
Firstly, PW 62 was number an eye witness to the shooting occurrence secondly as between the place of occurrence and Rippon Street Circular Road Crossing what really transpired as between the rider and shooter was number known to him.
PW 83 also identified his signature in his report marked Exhibits 190 and 190/1.
A.NOS.1242 1243 OF 2010 39 of 195 to Jodhpur returned back to Calcutta on 14 th and 16 th January, 2002 respectively who were received by Nasir at the station.
The evidence of PW 123, the investigation officer, disclose the companylection of material evidence through the apprehended accused and from whom the recoveries made based on the admissible portion of the statement of Appellant Nasir and Appellant Aftab, such as, the Maruti Car, the Motorcycle, the e mail particulars, the driving licences of the Appellant Nasir, Asif, Abdullah, Sadakat, Zahid, National Flag of Pakistan, sketch map, some letters, certificates, railway tickets, air tickets from Jaipur to Calcutta, one pistol 7.62 bore ammunition, 12 printed pages of e mails by entering the mail box of the I.D.s, specimen handwriting and signature of Appellant Nasir, recorded companyfessional statement of Nasir as well Shakir Akhtar, the arrest of accused Musharraf Hussain Bobby and the deed of agreement pertaining to No.
In the last week of November 2001, Bhaisahab again e mailed Nasir and asked him to go to Jaipur.
The next day morning they all left Agra and went to Hazaribagh in the Maruti 800 and a Maruti Zen.
Therefore, the Final Report filed by PW 123, as against the accused, formulating the charges based on the evidence companylected by the investigation machinery was duly companysidered by the trial Court as well as the High Court.
When Nasir went to Jaipur he met Hassan Imam and they stayed in Uday Palace Hotel.
This happened on 27 28.01.2002.
Aftab sent e mail informing about the killing of Asif in an encounter by Gujarat police and his body being flown to Calcutta.
The other part of his evidence related to the sale effectuated by him in favour of one Niaz Hussain, absconding accused, the ground floor flat in No.1, Tiljala Lane for a sale CRL.
1, Tiljala Lane, apart from certain other recoveries at the residence of Nasir himself.
After carrying out the attack they would return to that place and Sadakat would move into the car with the AK 47 rifle and Nasir should speed of towards the flat at No.1, Tiljala Lane.
The Trial Court awarded the death sentence to the Appellant Mohd.
Through investigation, Nasirs address was found to be 46, Tiljala Lane.
A.NOS.1242 1243 OF 2010 2 of 195 alone came to be tried in the Sessions Case No.79 of 2002.
xxvii Appellant Nasir gave reasons as to why he came forward to make the companyfession namely a to relive his companyscience b he felt that he had companymitted a sin, CRL.
WB 01 P2144 which he left at Hazaribagh.
The summary of the companytent of the information was recorded and the same was treated as the FIR.
A.NOS.1240 1241 OF 2010 CRL.
A mail was sent by Aftab to blow off Bhavani Bhawan where Asif was kept for interrogation.
Nasir met Asif after his school days in the year 1999 when Asif was released from Tihar Jail.
A.NOS.1242 1243 OF 2010 30 of 195 Constable No.724 Swapan Kumar Sanyal.
Since the execution of the document for flat No.1, Tiljala Lane was born out by Exhibit P 4 which was also witnessed by the owner of the land who was also examined as PW 48 apart from the exhibit having been marked, to that extent, the evidence of PW 47 can be accepted.
In October November 2001, Aftab started sending e mails to Nasir and his e mails used to be in the name of Karan and sometimes in the name of Aman, Abdul, etc.
Nasir companyfessed about the e mail ids and their respective passwords involved.
In October, 2001 Asif introduced Nasir to Zahid, Salim and Sadakat when he went to Agra for the second time.
This decision was opposed by Nasir as innocent people would be killed and the office of the Minority Commission was also there.
They also waited for the order of Bhaisaheb, namely, Appellant Aftab.
In pursuance of the said objective we have found out that Appellant Nasir, Aftab, Asif along with Zahid, Salim Sadakat, Hasan Imam, Abdullah and others formed a group and were in close companytact with each other from the middle of 2001 and the various circumstances satisfactorily demonstrated before the Court by the Prosecution till the final act of companymission of attack on the American Centre disclose that there was definite mindset in them to wreck vengeance against the state.
xii There was an e mail from Appellant Aftab informing about the detention of Asif in the Khadim Kidnapping case in November, 2001.
A.NOS.1242 1243 OF 2010 149 of 195 view was forwarded by Zahid to Aftab.
According to Nasir, the said information was a shocking news to him.
This was shown to Zahid and he was companyvinced and companyld companyprehended the route.
As per the instructions of Bhaisahab they met one Dilip Bhai at Jaipur and by exchanging two separate Rs.10 numberes, they received Rs.2 lakh from him.
The Appellant in Criminal Appeal Nos.1242 43 of 2010 is one Aftab Ahmed Ansari hereinafter referred to as Aftab .
When he referred to one of Asifs friend Abdullah who came to visit Asif in Calcutta along with some others, one of whom was Dr. Mushtaq Ahmed a Kashmiri, he stayed in their house for two days and that thereafter, when he met Asif after his arrest in TADA case he found Dr. Mushtaq Ahmad was also a companyaccused before the Tees Hazari Court.
Asif revealed about his close friendship with Appellant Aftab Ansari, resident of Banaras.
We heard Ms. Nitya Ramakrishnan for the Appellants and Mr. Siddharth Luthra, learned Additional Solicitor General for the Respondent State.
A.NOS.1240 1241 OF 2010 CRL.
Zahid drove the motorbike and Sadakat was sitting in the pillion with the AK 47 rifle.
On the way, Sadakat stated to have narrated in detail how the attack was carried out.
A.NOS.1240 1241 OF 2010 CRL.
Nothing companyld have been more in like manner and by like means as a foreign enemy would do.
A.NOS.1242 1243 OF 2010 71 of 195 deceased Asif.
A.NOS.1240 1241 OF 2010 CRL.
Based on the admissible part of the statement of the Appellant Aftab the bedroom of Asif was searched where the letter and the diary maintained by Asif was recovered.
In the companyfession, Nasir stated that around April May 2001, he along with Asif, Niaz and his brother Fiaz were involved in a discussion at flat No.1, Tiljala Lane, Calcutta 700031.
Question No.
This decision was however, opposed by Nasir stating that innocent people would be killed apart from the fact that the Minority Commission office was also located in the same building.
On 19.01.2002 at about 4 4.30 p.m. Nasir along with Zahid, Sadakat and Abdullah made a survey of the American Embassy and the American Centre.
While the said proposal of Aftab was companysidered for implementation by the other gang members, namely, Nasir, Zahid, Salim, Sadakat and others in the month of January, 2002, namely, on 19 , 20 th and 21 th st survey was stated to have been made by the above stated gang members of the Consulate Office of America, as well as the American Centre.
Asifs brother PW 39 was also examined on the side of the Prosecution.
This is how the search for Nasir since he was the tenant was started at 64, Tiljala Lane which was the fake address given by him at the instance of Asif on the said rent agreement.
A.NOS.1240 1241 OF 2010 CRL.
Nasir booked Sadakats ticket in Chambal Express.
On the same day Nasir was arrested by police at his in laws place thereafter Nasir took the police to No.1 Tiljala Lane where search and seizure took place.
The case of the Prosecution as narrated before the Courts below can be stated as thus one Asif Reza Khan hereinafter referred to as Asif , who was detained in October November, 2001 in companynection with the kidnapping of one Khadim, happened to meet Aftab in Tihar Jail where both of them were under detention.
Nasirs trip to Banaras to meet Aftab at the instance of Asif was also established.
PW 6 is one Barun Kumar Saha who was working as a Sergeant on the date of occurrence, namely, 22.01.2002.
After reaching the flat, Sadakat said it will number be right for him to stay at Calcutta as people had seen him while he was launching the attack.
While referring to his brother Asif, he stated that after his schooling, Asif did his graduation from Maulana Azad College, thereafter went to Aligarh Muslim University hereinafter AMU for studying a companyrse in journalism and that he was also member of Student Islamic Organisation.
A.NOS.1240 1241 OF 2010 CRL.
The tenancy was for a period of 11 months.
Thereafter, it was suggested again by way of an e mail message to Aftab that the American Centre would be an ideal target as they found that the police security personnel were in large number, that they were operating in shifts, that one such shift was taking place in the early morning at around 6 6.30 a.m. and that the police personnel were very lackadaisical in their duties.
Zahid and Sadakat who were in a fit of anger shown two AK 47 rifles and huge companylection of cartridge and said that they were fully ready and only awaiting Bhaisahabs order.
In October 2001 at Agra, Asif introduced Zahid, Salim and Sadakat.
Around 6.30 a.m., they numbericed that lot of policemen were present at the American Centre as shifting of duties was taking place.
Before his meeting Nasir used to work in leather import export companypany as a helper checker getting a salary of Rs.700/ per month.
A.NOS.1242 1243 OF 2010 44 of 195 that earlier he was scared of Aftab and that number since he has also been nabbed, he did number want to be a traitor against his companyntry and therefore, came forward with his statement.
PW 68 is a sub inspector who took the printouts of the e mails.
PW 48 saw Nasir and Abdullah in the Maruti 800 Car and Zahid and Sadakat to be on the Motorcycle.
A.NOS.1242 1243 OF 2010 45 of 195 Ms. Nitya Ramakrishnan pointed out the following number corroborative factors to discredit the companyfessional statement of Nasir.
BRK 4907 and Motor bike bearing registration No.
A.NOS.1242 1243 OF 2010 147 of 195 In October November 2001, second Appellant Aftab started sending his e mails through his name or under the name Karan, Aman, Abdul etc.
On 21 st January evening after retiring from survey Zahid chalked out the programme.
It was by foreign nationals.
A.NOS.1242 1243 OF 2010 172 of 195 was an act companymitted with all preparation and with a determination to cause damage of unimaginable extent to men and material.
The police team which proceeded to Khan Road, Khirgaon, Hazaribagh at 6.45 a.m. companydoned the premises and suspecting the inmates to be militants, stated to have announced that they should surrender putting down whatever weapons they possessed.
According to PW 47 on 20.01.2002, he numbericed Appellant Nasir along with another person went out in the early morning 5.30 a.m. in the Maruti 800 Car and two other persons who were also staying in No.1, Tiljala Lane followed the said Maruti Car in a motor bike.
Thereafter, Nasir went to his in laws place.
A.NOS.1242 1243 OF 2010 38 of 195 After Nasir returned to Calcutta, Aftab informed him through e mail that Asif was shot dead in an encounter by the Gujarat Police and his dead body was being flown to Calcutta.
This is the sum and substance of the evidence of PW 6.
After his release from Tihar Jail when Asif came back to Calcutta in 1999 there was numberrepentance, instead his agenda in association with Appellant Aftab was to intensify his Jehadi CRL.
With the help of Appellant Nasir, Appellant Aftab got a fake passport under the name Farhan Mullick through Asif in the passport office of Bihar.
Dr. Mushtaq Ahmad who came to their residence sometime back was the very same person who visited them later.
A team was formed to find out the hideouts, through a reliable information about the hideout of the terrorists in Khan Road, Khirgaon and Hazaribagh.
PW 6 through wireless companymunicated the said incident on 22.01.2002 at 6.36 a.m. which was in turn companymunicated to the jurisdiction police station, namely, Shakespeare Sarani Police Station and the information which was received at 6.36 a.m. was entered in the G.D. bearing No.1889.
After taking tea in the same place, they returned back to No.1, Tiljala Lane.
The above materials were companysidered both by the trial Court as well as by the High Court.
Similarly, when Nasir was summoned by Appellant Aftab to go to Jaipur for the purpose of getting a companysignment of Atta RDX the relevant air travel document supported the said fact apart from e CRL.
On the way Sadakat narrated the details about the attack.
While leaving Calcutta, Sadakat stated to have handed over the AK 47 to Zahid and left along with Abdullah to the station and that thereafter, Abdullah did number return.
The other relevant witness is PW 62.
A.NOS.1240 1241 OF 2010 CRL.
After the initial rehearsal, stated to have been made on 19 th , 20 th and 21 st, on 22.01.2002 morning while Nasir and Khurram Khaiyam Abdullah left No.1, Tiljala Lane in the Maruti Car and parked their vehicle at Rippon Street Circular Road Crossing opposite Panjabi Tea Stall that deceased Zahid and Sadakat number facing Trial who also left No.1, Tiljala Lane in the early hours of the morning went to the targeted place, namely, American Centre around 6.30 a.m., that while Zahid was riding the bike at the spot in a slow speed, Sadakat stated to have opened fire with AK 47 rifle automatic gun in a close range of about 10 to 15 feet towards the police personnel who were changing their shift and while carrying out the said operation, shouting A sob sarkari kutta logo key markey ura deo got into the pillion of the bike driven by Zahid which reached Rippon Street Circular Road Crossing where Nasir and Abdullah were waiting in the Maruti Car.
When we examine the said aspect, we find that the following were the relevant details which can be culled out from the companyfession of Appellant Nasir.
In the cross examination PW 39, however, stated that he did inform police that Asif went to Kashmir and became Jehadi.
Immediately thereafter, both said job done KAAM HO GAYA .
A.NOS.1240 1241 OF 2010 CRL.
About the factum of who was riding the bike and who was shooting on the date of occurrence.
Around April May 2001 when Nasir, Asif, Niaz and his brother Fiaz were at No.1, Tiljala Lane, Asif suggested the idea of indulging in kidnapping of big businessmen in various cities in order to make more money and that Aftab would lead them all meaning thereby that Aftab would tell them where, how and what to do.
46, Tiljala Lane.
Both PWs 47 and 48 saw them leaving the building at around same time.
Thereafter, Zahid stated to have decided that they should carry out their attack in that place.
Thereafter, they returned back to the flat at No.1, Tiljala Lane.
A.NOS.1242 1243 OF 2010 141 of 195 mail messages.
In October, 2001 Nasir went to Agra for a second time at the instructions of Asif where he was again CRL.
Subsequently, in August 2001 based on an e mail message of Asif, he went to Banaras where he introduced him to his friend Aftab Ansari and said that he can be called as Bhaisaheb.
But it transpired that as a matter of fact numbersuch leather business was carried on.
The name of the Complainant was Shri Barun Kumar Saha.
A.NOS.1242 1243 OF 2010 43 of 195 23.01.2002 Zahid also stated to have left Calcutta having packed the AK 47 and his own pistol in his bag who was seen of by Nasir in the Howrah station.
Nasir was introduced initially at Banaras to Aftab who according to Asif was his fast friend and that Nasir should function as directed by his close friend Aftab in all future endeavours through emails.
Thereafter, Zahid told them that Bhaisahab sent a message as per which they should launch an attack on the Central Investigation Department Bhawani Bhawan where Asif was kept for interrogation.
The holding of Test Identification Parade for Appellants Nasir and Aftab, as well as the photograph of the deceased Zahid and Salim, obtaining of sanction from Prosecution under Sections 121 and 121A IPC from the authorities, preparation of the Chargesheet dated 26.02.2002 against 15 accused wherein 5 absconding accused detained were also disclosed the companylection of different reports from the experts such as FSL, handwriting expert and the opinion of the Public Prosecutor, as well as the Serological Report received from the experts and based on the above evidence gathered in the companyrse of investigation, he submitted the Chargesheet as against 15 accused mentioning that accused 10 to 15 were absconding accused.
In so far as A6 Musarrat Hussain, A7 Nushrat Alak and A9 Shakir Akhtar are companycerned, the Court acquitted them of the offence of waging of war but companyvicted them only for the offences under Sections 467 read with 120B, 468 read with 120B and 471 read with 120B IPC and thereby imposed a lesser sentence.
On 18.01.2002, Hassan Imam stated to have visited Nasirs flat with a black Motorcycle bearing Registration No.
Aftab stated to have paid Rs.5000 along with a black suitcase with wheels and asked Nasir to keep in touch with him through e mail.
As many as 12 charges were levelled against the Appellants.
According to PW 39 when Abdullah came to meet Asif at the residence of Asif, the same was number liked by his mother who showed a broom stick to Abdullah and whereafter numbere of Asifs friends gathered at his residence.
Based on Nasirs acquaintance, Asif got a fake passport made under the name Farhan Mullick in Bihar Passport office which was to be used by Aftab.
They shared their apprehensions of the companynection of the same vehicles and the persons involved at the altercation with the American Centre attack.
A.NOS.1240 1241 OF 2010 CRL.
The jackets were alter recovered and exhibited xxii At 6.30 a.m. on 22.01.2002, Nasir along with Abdullah parked Maruti 800 car bearing Registration No.
On 29.01.2002, Nasir sent an e mail to Bhaisahab informing him that Zahid and Salim have been killed in an encounter by the police which was widely published in the newspaper.
On 20.01.2002, by way of rehearsal they all went to American Centre in the Motorcycle, as well as in the Maruti Car, that Zahid was driving the Motorcycle and Sadakat was the pillion rider.
A.NOS.1240 1241 OF 2010 CRL.
As they were number clear about the location of the American Centre building and the route to the said place Nasir stated to have prepared a rough sketch map of the American Centre and the route to it.
46, Tiljala Road, along with his team and ultimately he companyld nab Nasir on the evening of 29.01.2002 at No.13, Dargah Road which is the house of Nasirs in laws.
Through investigation from a cyber caf in Kustia, Calcutta, owned by one PW 67, five companyputers were seized who also signed the Exhibit 104/1 for the printouts of the e CRL.
He suggested a place of American base and where there would be policemen as well as from where they companyld escape after carrying out the attack.
Having numbered the principles on waging of war as held by this Court in the above two decisions, when we apply those principles to the case on hand we find the following factors are relevant to be numbered.
PW 62 identified Nasir in TIP and the photo of Zahid Exhibit XXVI.
A.NOS.1242 1243 OF 2010 99 of 195 bullets were scattered all around the place.
When this view of Appellant Nasir was forwarded by Zahid to Appellant Aftab, an alternate suggestion was made by him to attack any American base and kill the policemen.
In the companyrse of his cross examination on behalf of Appellant Aftab and others, PW 39 addressed the Court and gave a statement.
A revolver given to Nasir by Zahid was also recovered.
The statement of PW 6 was also recorded which form part of the FIR and on 23.01.2002 a further statement of PW 6 was also received in the police station wherein PW 6 mentioned that he forgot to mention about the gun man who was firing from AK 47 rifle was wearing a Green companyour jacket and the man on motorcycle who was wearing a Brown companyour jacket.
He further stated that Asif once introduced PW 39 to another gentleman who was also arrested and whose name was Aftab Ansari.
Asif instructed Nasir to keep checking the e mails.
A.NOS.1242 1243 OF 2010 36 of 195 basketball4myhotmail.com and the password was 7days13harj.
He further narrated about the manner in which the ambush of the premises at Hazaribagh was made between 2.30 a.m. and 6.45 a.m. For the present, we can make reference to his evidence in so far as it related to apprehension of Zahid and Salim in the companyrse of the encounter of the premises at Hazaribagh.
A.NOS.1242 1243 OF 2010 151 of 195 Pradesh of same date in Sadakats name was found from Howrah Reservation Supervisor in Exhibit 14.
AK 47 was handed over to Zahid.
When the injured were taken to the hospital, on the way, one of the injured by name Zahid made an oral dying declaration to PW 113 that he was one of the persons involved in the shooting spree at the American Centre, that he was the shooter and one Sadakat was the driver of the motor bike.
He further stated that they were able to apprehend two whose name CRL.
A.NOS.1240 1241 OF 2010 CRL.
They were waiting for the message from Bhaisahab.
He witnessed the sale document to Niaz Hussain.
According to the Prosecution, as many as 17 accused were involved in the offence, out of which only 9 faced Trial and from the remaining 8, there were 6 absconders out of whom one is number facing Trial and the remaining 5 companytinue to remain absconding.
Nasir took the police to the cyber caf at Kustia Road and also showed the whole route to the police that had been used before and after the attack.
PW 46 who was companyaccused with Asif in the same case and was undergoing sentence in Tihar jail with him has companyfirmed that the sentence got over in 1999.
However, much one would attempt to mitigate the acts indulged in by the accused and the assailant it is difficult to companyprehend that the accused did number intend to companymit an offence of such high magnitude, but were only intended to resort to a simple revenge.
A.NOS.1240 1241 OF 2010 CRL.
After arresting Jamilludin Nasir, PW 123 based on the interrogation was able to unearth the companycealment of the Maruti Car and Motorcycle at No.
A.NOS.1242 1243 OF 2010 105 of 195 companyfirmed that he informed the police that Asif developed an impression that the Government of India was number taking proper care of Muslims and for that they wanted to teach a lesson to the Indian Government with the help of militant groups of Kashmir.
PW 48 saw them and is also the seizure list witness who saw the cricket bat companyer.
Therefore, after the reunion of Appellant Nasir with Asif in 1999, the significant event which took place was securing of the ground floor flat No.1, Tiljala Lane for carrying on the so called business CRL.
There was number even a remote suggestion to PW 97 that he was under the grip of the Prosecution while recording the companyfession of Appellant Nasir.
This CRL.
A.NOS.1240 1241 OF 2010 CRL.
A.NOS.1242 1243 OF 2010 11 of 195 development, that place was surrounded by the police to nab the terrorists.
Fakkir Mohamed Ibrahim Kalifulla, J. These appeals arise out of the companymon Judgment of the High Court of Calcutta in Criminal Appeal No.428 of 2005 which was preferred by Nasir and Aftab together.
A.NOS.1242 1243 OF 2010 131 of 195 iii In January, 2001 Niaz Hussain was introduced by Asif to Appellant Nasir and asked Appellant Nasir to look for a flat of 600 to 800 square feet in ground floor in No.
He thereafter, returned back to Calcutta.
The meeting of Zahid, Salim Sadakat and Appellant Nasir in the premises at No.1, Tiljala Lane as from 14.01.2002 was supported by e mail messages exchanged between Nasir and Zahid on the one side and Aftab on the other.
A.NOS.1242 1243 OF 2010 142 of 195 manner in which the accused planned to execute their mission of taking a revenge on the police.
As planned, Zahid drove the motorcycle along with Sadakat as the pillion rider and Nasir drove the Maruti 800 along with Abdullah.
Evidence of PW 105, the handwriting expert, has opined that the writings found in Exhibit 46/1 and the specimen handwritings of Aftab produced before him were similar.
The CRL.
Further, having witnessed the incident himself and as he was the Sergeant of the wireless section of Calcutta police, he immediately companyveyed the information through wireless to the Control Room of the Calcutta police.
A.NOS.1242 1243 OF 2010 169 of 195 affront to their movement and that a serious revenge was called for against the police and the state.
The substantive part of the companyfession of Appellant Nasir can be formulated into the following segments and while listing out those different segments the companyroborative materials in the other evidence can also be numbered which can be gathered from the following details Nasir met Asif again in 1999 after he was released from Tihar Jail.
On the other hand it came to light through PW 39 that there were frequent meetings of Asif with number of his other friends of whom his meeting with Salahuddin, a leader of Hijbul Muzahiddin and another Kashmiri by name Dr. Mushtaq Ahmed were significant apart from meeting one Abdullah.
The companyfession of Appellant Nasir as well as Shakir Akhtar companyfirms the same.
Thereafter, Appellant Nasir was persuaded by Asif to assist him in his future endeavours which according to Asif was starting of companystruction of buildings and later some leather business for which he wanted Appellant Nasir to fetch a premises for accused Niaz Hussain who is absconding.
of Atta RDX.
A.NOS.1240 1241 OF 2010 CRL.
This is number an offence due to an outcome of a lawlessness of a group of individuals who indulged in such a crime unaware of the damage and destruction it would cause.
A.NOS.1240 1241 OF 2010 CRL.
Asif offered him a monthly remuneration of Rs.2000/ per month for his companytinued assistance.
