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Penal Code, 1860:SS. 121A, 121, 122, 302, 307, 333, 467, 471 and 46B r/w s.120B - Arms Act, 1959 - ss. 25(1A), 27(2), and 27(3)- Waging of war against State - Pre planned attack on police force at American Centre by accused- A1 and A8 along with the absconding accused and other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians as also damage to public property- Conviction of A1, A8 and others u/ss. 121A, 121, 122 and ss. 302, 307, 333, 467, 471 and 468 r/w s.120B and u/s. 25(1A), 27(2), and 27(3) of the Arms Act r/w s. 120B - Imposition of death sentence for the said offences - Conviction of accused persons on the basis of confession of A1, eye witness account of witnesses, oral evidence of prosecution witnesses and various exhibits - As regards accused-A 1 and A8, order upheld by the High Court-Appeal before this Court by A 1 and A8 - Held: Factors established prove that A 1-main conspirator of the attack and A8- mastermind of the attack, along with other accused waged a war or attempted to wage a war against the Government of India, for which they all conspired together and committed the said offence -Apart from the confession of A1, medical evidence, oral and documentary evidence, material objects support the prosecution case - Confession of A1 recorded in accordance with s. 164 Cr.PC- Confession of A1 contained facts and "figures disclosing the crimes in which they were involved as a gang by conspiring together with the foreign nationals and some terrorist organisation - There was sufficient corroboration of the contents of the confession of A1 - Confession of A1 can be relied upon as against co- accused-A 8- Thus, prosecution justified in relying upon the confession while resting its case on other evidences - Offence charged against appellant conclusively proved except u/s. 27(3)- Conviction of A1 and A8 u/ss. 121A, 121, 122, 302, 307, 333, 467, 471 and 468 r/w s. 120B upheldss. 121, 121A and 122 IPC r/w 120B - Offence of conspiracy- Important facet of- Held: Conspiracy is a distinct offence -All conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of the conspiracy- In the instant case, though the conspiracy was hatched in secrecy having regard to the oral and documentary evidence supported by the confession of A1, the existence of the conspiracy, the object of the conspiracy and the knowledge on the above for the participants of the conspiracy fully established-Thus, charge u/ss. 121, 121A and 122 r/w 120B attracted.ss. 121, 121A .and 122- Conviction under, for waging of war against the State - General principles to be applied- Explained.Sentence/Sentencing:Conspiracy to wage war against India -Attack on police force at American Centre by A1 and A8 along with other accused, resulting in death of five police personnel and grievous injuries to 15 police personnel along with civilians --'Accused held guilty Of offences u/ss. 121, 121A, 122 r/w 120B IPC as well as u/ss. 302, 307, 333 r/w 120B IPC - imposition of death sentence- Challenged to, by A1 and A8 - Held: In view of magnitude of the offences, the manner in which it was carried out, the disastrous effect it caused, the animus with which the offence came to be committed, extreme punishment of death should be awarded to the accused-As regards the extent of participation, role of A8- mastermind of the attack is of very high magnitude and the role of A 1-main conspirator of attack is slightly lesser in degree, though the magnitude of the crime was the same - However, in view of the facts and circumstances of the case death sentence not warranted, though deterrent punishment called for- Imposition of death penalty for offences u/ss. 121, 121A, 122 r/w 120B IPC modified to life imprisonment-A8 to suffer life imprisonment till the end of his life and A1 for a minimum period of 30 years without any remission - ss. 121A, 121, 122, 302, 307, 333, 467, 471 and 46B r/w s.120B.Charges u/ss. 121, 121A, 122 r/w 120B as also 302 IPC for waging of war against State and killing and injuring police personnel- Imposition of sentence - Principles to be borne in mind - Stated.Factors for proper sentencing- Stated.Evidence Act, 1872:ss. 10 and 30-Confession of accused u/s. 164 Cr.P.C. - Reliance upon, as against other accused - Held: When more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect the maker as well as the co-accused, the court can take into consideration such confession as against other persons and also against the person who made such confession - On facts, overwhelming evidence independent of confession of A1 on record, thus, confession of A1 can be fully applied and thereby, involvement of A1 in the criminal conspiracy and the following insurrection on police force at American Centre fully established, thus, confession of A1 can be relied on as against A8.s. 32- Dying declaration - Reliance upon - Oral dying declaration of one of the accused involved in the attack to the police officer - Admissibility of - Held: Cannot ·be accepted since it did not fall within the four comers of the prescription contained In s. 32 - However, inability to rely upon the so-called oral dying declaration for want of legal sanction cannot mean that the entirety of the evidence of the police officer can be eschewed from consideration - Only said pa it of the version of police officer cannot be relied upon.Code of Criminal Procedure, 1973 - s. 164 - Confession of accused recorded under - Procedural compliance with -Admissibility of- Held: A1 was not in police custody when his confession was recorded - Procedure for recording the confession was complied with - Confession was voluntary - Retraction alleged to have been made by A1 dealt with and the same did not cause any hindrance in accepting the confession - Narration so made in the confession by A1 was natural and cogent and also established that the confession of A1 was not only recorded in accordance with s.164 but deserved to be given due consideration while appreciating the evidence relied upon by the prosecution.Arms Act, 1959 - s. 27(3) - Conviction and death sentence imposed on accused under - Maintainability of - Held: S. 27(3) ultra vires of the Constitution and declared as void, thus, convictions and sentence imposed u/s. 27(3) set aside. |
