Review Petition – Death Penalty – In firing incident inside Lal Quila, three army jawans received fatal injuries and lost their lives – Review Petitioner was tried and was awarded death sentence – Death sentence was confirmed by High Court – Petitioner preferred appeal before Supreme Court – The challenge was negated and award of death to the petitioner was affirmed – Review petitions before Division Bench were dismissed – Curative petition filed by review petitioner also dismissed –Thereafter writ petition was preferred on ground that the review petitions in matters arising out of award of death sentence be heard by three judge bench in open Court –On review, held: Challenge raised in these review petitions were on grounds such as admissibility of electronic evidence, reliability and admissibility of disclosure statement, relevancy of recovered ammunition and possibility of rehabilitation of the review petitioner – Electronic evidence in form of CDRs which was without any appropriate certificate must be eschewed – Even after eschewing such circumstances directly attributable to the CDRs, the other circumstances on record do clearly spell out and prove beyond any doubt the involvement of review petitioner in the crime in question – In review jurisdiction, it will not be possible to enter into questions regarding admissibility of such disclosure statement on issues of fact – Submission that recovery of ammunition or encounter of ‘A’ could not be associated with the disclosure statement of the review petitioner is not quite correct – Nothing on record which can be taken to be a mitigating circumstance in favour of the review petitioner – Suggestion that there is a possibility of retribution and rehabilitation, is not made out from and supported by any material on record – Review petitions dismissed – Evidence Act, 1872 – s.65B.
Review – In review jurisdiction, it will not be possible to enter into questions regarding admissibility of disclosure statement on issues of fact.
Dismissing the review petitions, the Court
HELD: 1. In review petitions, the challenge is raised principally on four grounds: (a) The concerned Courts committed error in allowing call records to be admitted in evidence, in the absence of an appropriate certificate under Section 65B of the Indian Evidence Act, 1872
(b) The disclosure statements of the review petitioner must be taken to be inadmissible on account of ill treatment meted out to him during the intervening night between his actual arrest and his formal arrest.
(c) The recovery of ammunition or the encounter of one Abu Shamal, who was stated to be the accomplice of the petitioner, at Batla House, New Delhi, could not be associated with the disclosure statement of the review petitioner.
(d) Any possibility of retribution and rehabilitation of the review petitioner, or that he would continue to be a threat to the society, was not considered by the Courts. [Para 12][807-G; 808A-B]
2. Since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao. Consequently, one must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act. Circumstances mentioned at Serial Nos. ‘h’ and ‘j’ become extremely weak as the tracing of calls received by PWs 39 and
41 to Mobile was possible only through CDRs. These circumstances must not, therefore, be taken into account. Even after eschewing circumstances ‘h’ and ‘j’ which were directly attributable to the CDRs relied upon by the prosecution, the other circumstances on record do clearly spell out and prove beyond any doubt the involvement of the review petitioner in the crime in question. [Paras 23-26][822-D-E, H; 823-A] Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 : [2014] 11 SCR 399 and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1- relied on.
3. Grounds ‘b’ and ‘c’ are purely factual in nature. The disclosure statement, as a matter of fact, was held to have been proved by the Courts below and this Court. In review jurisdiction, it will not be possible to enter into questions regarding admissibility of such disclosure statement on issues of fact. After the person concerned named Abu Shamal alias Faisaln died in the encounter, certain fire arms and ammunition were recovered. The submission that such recovery of ammunition or the encounter of Abu Shamal could not be associated with the disclosure statement of the review petitioner is not quite correct. This Court therefore rejects both the grounds taken in ‘b’ and ‘c’ as referred. [Para 27][823-B, C-D]
4. There is nothing on record which can be taken to be a mitigating circumstance in favour of the review petitioner. The suggestion that there is a possibility of retribution and rehabilitation, is not made out from and supported by any material on record. On the other hand, the aggravating circumstances evident from the record and specially the fact that there was a direct attack on the unity, integrity and sovereignty of India, completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record. The submission so advanced under ground (d) does not merit any acceptance and is, therefore, rejected. [Para 30][831-G-H; 832-A-B]
Mohd. Arif alias Ashfaq v. State (NCT of Delhi) (2011)
13 SCC 621 : [2011] 10 SCR 56; Mohd. Arif Alias Ashfaq v. Registrar, Supreme Court of India & Ors. (2014) 9 SCC 737 : [2014] 11 SCR 1009; Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India & Ors. (2019) 9 SCC 404; Vikram Singh alias Vicky Walia & Anr. v. State of Punjab & Anr. (2017) 8 SCC 518 : [2017] 8 SCR 177; Akshay Kumar Singh v. State (NCT of Delhi) (2020) 3 SCC 431; Shafi Mohammed v. State of Himachal Pradesh (2018) 2 SCC 801; Vasanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC
631 : [2017] 3 SCR 850; State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600 : [2005]
2 Suppl. SCR 79; Tomaso Bruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC 178 : [2015] 1 SCR 721 and Sonu alias Amar v. State of Haryana (2017) 8 SCC 570 : [2017] 8 SCR 151– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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