- (1.) A. FACTS A.1. INCIDENT ON JANUARY 22, 2002 A. 1.1. SCENE - 1 At about 6:36 a.m., Calcutta Police Control Room at Lai Bazar received an information of firing in front of American Centre. Control Room immediately asked the Shekespeare Sarani Police Station to proceed to the spot. On investigation it revealed that a group of police personnel was guarding American Centre. The said group was about to complete their night duty and the new group was to take over. During the period when handing over of charge was going on at 6:15 a.m., two persons riding on a Motor Cycle one having a pistol in his hand, driving the Motor Cycle and the pillion rider having Machine Gun being AK-47 model indiscriminately fired at the police party and then fled towards south direction. The entire incident took about five minutes causing casualty to many police personnel and injuring others. One private security guard of American Centre along with one civilian also sustained injury. Eighteen police personnel with gun shot injuries were removed to S.S.K.M. Hospital, Calcutta. Five of them succumbed to their injury while the others except one were treated and discharged subsequently. Two civilians Moti Jadav, a pedestrian and a private security guard one Aubray Gallyat employed by American Centre also sustained gun shot injury. The investigating team recovered cartridges from the place of occurrence. Bullets were also removed from the dead bodies as well as from the bodies of injured persons. Those were subsequently examined by the forensic expert. A. 1.2. SCENE - 2 At about 6:00 a.m. two friends namely Gilbart Gomes and Sahid Ikbal alias Pappu (P.W. 62) went to purchase milk in Beniapukur. Sahid saw a Maruti Car and a Motor Bike at the crossing of Beniapukur Lane. He was talking to Gilbart Gomes just in front of the shop of one Ashok Nandy. He saw blue coloured Maruti 800 Car standing there. A lorry was going from Beniapukur side and could not pass because of the blockade of road by the Maruti Car. Two persons were sitting in the front seat. He asked those persons to make way for the lorry to avoid jam. The Maruti vehicle number was BRK 4907. After about ten minutes, a black coloured Motorbike came to the side of the Maruti vehicle. Two persons got down from the bike with a cricket bat cover having something inside it. One of them boarded the Maruti Car by saying 'Insa Alia Kum Ho Gaya'. Both the car and the bike left the place. The Motorcycle was having registration number being W.B. 01 P-2144. At about 9:00 a.m. he heard the news of American Centre shoot out. He apprehended that the morning incident witnessed by him might have some co-relation and hence, informed Shale Babu, a police inspector known to him working at Lai Bazar. On August 29, 2002 the learned Sessions Judge framed the charges against all the accused including the appellants above named under Sections 121, 121A, 122, 120B, 302, 333, 467, 468 and 471 of the Indian Penal Code as also under Sections 25(iA), 27(2) and 27(3) of the Arms Act read with Section 120B of the Indian Penal Code. A.2. PRELUDE A. 2.1. INTRODUCTION The appellants, herein, are Aftab Ansari (hereinafter referred to as Aftab), Jamiluddin Nasir (hereinafter referred to as Nasir), Musarrat Hussain (hereinafter referred to as Boby), Sakir Akhtar (hereinafter referred to as Rohit), Hasrat Alam (hereinafter referred to as Hasrat), Rehan Alam (hereinafter referred to as Monti) and Adil Hassan (hereinafter referred to as Adil). A.2.2. E-MAIL On January 19, 2002 Jamiluddin Nasir sent an E-mail to a person having I.D. Aaa Mere 7 @ Yahoo.Co.In. informing that he was taking up a new work and asked the addressee to pray for him so that he could achieve success. On January 20, 2002 Nasir again sent another E-mail to the same person by saying that next day would be his opening day and asked the person to pray to God for his success. On the next day January 21, 2002 the person having I.D. Aaa Mere 7 replied to Nasir that he should continue to check mail. A.3. TEASTALL INCIDENT ON JANUARY 21, 2002 Sanjoy Paul (P.W. 37) was a Florist and a resident of 3-Russel Street. He was taking tea from a Punjabee Teastall and P.W. 38 was also taking tea at the crossing of a Middleton Street and Russel Street. On January 20, 2002 at about 6:30 a.m. the blue coloured Maruti 800 Car while coming with high speed suddenly applied brake, as a result another person got his tea spilled over his hand. An altercation took place on that score. He (P.W. 37) also identified the Maruti Car having registration BRK 4907. He was a regular visitor of the said tea stall. On January 22, 2002 he saw a Motorbike which crossed him with full speed proceeding towards Cammac Street. He identified the bike as well as the Maruti Car. He also deposed that when the altercation took place on the spilling over of tea, the black colour motorbike which he saw on 22nd January also joined the motorist supporting them. He also identified the chocolate coloured jacket and green coloured jacket worn by the motor cyclist and the pillion rider. This incident was corroborated by Jayanta Kumar Bose (P.W.-38). He was a morning walker and a regular visitor of the said tea stall. His tea got spilled over his hand on January 20, 2002. He also gave the description of the Motor Car as well as Motorbike and the persons involved in the spilling over incident. He identified Nasir as the driver of the Maruti vehicle. A.4. JANUARY 21ST MORNING On January 21, 2002 early morning Dilip Kumar Singh (P.W. 47) saw Nasir taking out Maruti 800 Car from the garage at 1 Tilzala Lane. While he was driving, Abdulla was sitting by his side. Two other unknown persons were following them in the black colour Motorbike. A.5. PREPARATION / CONSPIRACY A.5.1. E-mail E-mails were exchanged on November 27 & 28, December 5 & 17, 2001 and January 8 & 9, 2002. On a combined reading of the E-mails it appears that they were planning to arrange a flat as well as Maruti Car. The E-mails also referred to Jaipur episode. A.5.2. ACQUISITION OF FLAT Dilip Singh (P.W. 47), a promoter in Tilzala area, handed over flat at 1 Tilzala Lane to Niaz Hossain, Nasir introduced Niaz to Dilip. Niaz converted one room in the flat as garage. Dilip identified the Motorcar as well as the Motorbike kept inside the said flat in question. A.5.3. PASSPORT As per the confessional statement made by Nasir he initially helped Asif to have a passport from a person known to him at Patna. He then came to know that Asif got a passport done for Aftab in the name of Farhan Mullick. A.5-4- REASON / ZEHAD Asif was killed in an encounter with the police at Gujarat. According to his associates it was a fake encounter and they wanted to take revenge. According to Nasir as per his confessional statement, in December 2001 he went to his flat at Khan Road, Khir Gao, Hazaribag where he met Zahid, Sadakat, Salim and Imam Hossain. Zahid and Sadakat told that police had killed Asif and they would take revenge and they would not spare the Calcutta Police either as Asif was in police remand at Calcutta. They decided to blow off Government Buildings and carry out killing of cops. They would teach the police a lesson. Zahid and Sadakat possessed two AK-47 rifles along with huge collection of cartridges. The said statement was corroborated by a letter written by Aftab to the widow of Asif being exhibit No. 45/1 where he expressed condolence for the sad demise of Asif. He informed the widow that the police had killed Asif in custody and Amir (the next brother of Asif now absconding ) was making preparations to take revenge. He advised her to watch and see and cautioned him that she should not discuss anything with the bearer of the letter. A.6. PRINTING - NEXUS WITH MAIN CAUSE ? A. 6.1. This episode apparently does not have any nexus with the prime incident at American Centre. This episode relates to printing of fake tax token and car registration certificate involving three accused being Rohit, Boby and Hasrat. If we take the confessional statement of Rohit and Boby we would find that Rohit (Sakir Akhtar) was an unemployed youth. Around January - February 2000 he was looking for a job. Bablu introduced him to Asif as Rajesh. Asif introduced him as owner of a leather company and offered him a marketing job at a salary of Rs. 2000.00 per month. Rohit agreed and joined Asif. Few days later Asif introduced him with his brother Amir as Rajesh and another person by the name of Abdulla. Rohit's brother Rajesh was working at Archies Printing Works at Razabazar along with a boy named Boby (Musarat Hussain). Rajesh introduced Boby to him and they became friendly and they started chatting at Ramlila Park from time to time. One day Asif stopped Rohit at Ramlila Park. Rohit introduced Boby to Asif. Asif asked what Boby was doing. Boby told him that he was working at Archy's Printing and gave his card. After some days Asif introduced Rohit to Aftab as Guptaji, a big businessman. They all got together at Ramlila Park. Guptaji told them that if they want to make money they should abduct a big business man. All of them agreed to such proposal. Aftab told they would have to impersonate CBI personnel and use forged tax token and registration certificate. A.6.2. At this juncture Asif and Aftab rang up Boby and asked him to come to Ramlila Maidan. Accordingly, Boby came. He was assigned the job of printing of blank tax token and registration certificate. He initially did not agree. He was given Rs. 10,000.00 in advance. He then agreed to do the same on the assurance that another six thousand rupees would be paid later on. Boby got the printing job done by Hasrat. He was however not paid the balance six thousand. Rohit informed Asif and Aftab. Asif and Aftab assured payment of six thousand more which was however not paid. This was also corroborated by Boby in the confessional statement. The above facts got also corroborated through seizure of the blank tax token and registration certificate both from Tilzala flat as well as from Hasrat's possession. Seizure witnesses proved such seizure. This episode happened in 2000. During the printing operation Asif was alive and he was involved in getting those fake Government documents printed through Hasrat. How they would use those documents, however, did not come in evidence. Neither Nasir in his confessional statement nor any of the witnesses referred to this printer group and co-relate them with the shoot out incident or the conspiracy involved therein. A.6.3- Involvement of Hasrat would show that he did not even meet the core group being Aftab, Asif or Nasir at any point of time. He was known to Boby and on his request being lured, printed those fake documents. Hasrat did not give any confessional statement. A.7. HAZARIBAG On January 22, 2002 when the shoot out took place the investigating team could not find out any clue as to how this could happen and who were involved in such incident. After about five, six days Kolkata Police got an information from Hazaribag that there had been an encounter between the police and the terrorists where two terrorists were killed. One of them made a dying declaration admitting his involvement in American Centre Shootout Incident. Such information was received by Shri Sujit Mitra (P.W. 122) on January 28, 2002 from the Deputy Commissioner of Detective Department. The police party went to Hazaribag and investigation revealed as follows : a) Zaida Khatun (P.W. 73) was a teacher at a primary school at Hazaribag. She sold four khatas of land at 1/25 Moulona Abul Kalam Azad Colony to Nasir and identified him. b) Abdul Hamid Khan (P.W. 106) was the son of Abdul Mazid Khan, owner of two houses at Hazaribag, out of which one house was rented to Nasir in part. c) Kausalya Nand Chowdhury (P.W. 113) was the Officer in-charge, Sadar Police Station at Hazaribag. On January 27, 2002 he received an information from S.P., Hazaribag that one police team was coming to Hazaribag from Delhi being led by Mr. Rabi Sankar, S.E.P., Delhi Police. They came on a tip off that two terrorists had taken shelter at Hazaribag. On investigation it revealed that the terrorists were staying at the residence of Abdul Mazid Khan at Khirgaon as also at the residence of one Monti at Hasmian Colony. Monty was connected with the terrorists. Two raid parties proceeded, one for Khirgaon and another for Hasmia Colony. On January 27/28 at about 2:40 a.m. they cordoned the house of Mazid Khan. At 6:45 a.m. S.P. Hazaribag requested the inmates of the house to come out and asked them to surrender before the police. After about half an hour two persons escapped from the side gate and began to fire indiscriminately upon the police party. There had been an encounter and ultimately both the miscreants died. One of them (Salim) died on the spot and the other one (Zahid) subsequently died at the hospital. While the injured man was being carried to the hospital he disclosed that he was a member of Lasker-E-Taiba and a resident of Pakistan. He participated in the shootout incident at American Centre along with one Sadakat. One AK-47 rifle was seized from the said injured person who subsequently died at the hospital. d) On the next day, the Kolkata Police Team arrived at Hazaribag. They took the AK-47 rifle to Kolkata after complying with necessary formalities. e) Abdul Mazid deposed that he was staying at Raurkella whereas his two sisters were residing at Hazaribag in the other building. They informed him about the shootout incident over telephone. He let out one flat in the other building to Nasir. Nasir began to reside in the said flat after execution of the agreement in December 2001. The other flat was occupied by one B.D.O. He identified the chocolate coloured jacket seized by the police in his presence from the flat. In November 2001 he saw Nasir residing in the flat. He saw one Maruti Zen Car parked there. In first week of December 2001 he saw Hasan Imam (Monti) one of the relatives of Nasir in the said flat who had complained about the water scarcity. He visited the flat to check whether the tube-well was working or not. He could not find Nasir. However, Hasan told him that Nasir went out of Hazaribag and he introduced Zahid and Salim who were staying at that time. They were introduced as staff of Nasir. Maruti Car and the Motorbike were parked. He identified the photographs of Zahid who was killed in the encounter, f) Monti was his distant maternal uncle. Nasir used to visit Hazaribag and put up at his in-law's place at Hasmia Colony. Monti told him once that his brother in-law, Adil was to join them soon. According to his E-mail I.D. was Aao Mere 7 @ Yahoo.Co.In.
(2.) B. INVESTIGATION AND SUBMISSION OF CHARGESHEET B.1. Mr. Anil Kar, P.W. 123 was entrusted with the job of investigation. He interrogated the injured police personnel at the hospital as well as at the Shakespeare Sarani Police Station. The other police officers also assisted him in the matter of investigation including Sujit Mitra, (P.W. 122) who went to Hazaribag. On January 29, 2002 Nasir was arrested. Search was conducted in the house of Jahida Khatoon wherefrom the Hazaribag Tenancy Agreement was recovered. Monti and Adil were arrested from Hazaribag on January 27, 2002. Tilzala Flat was also searched wherefrom both the Maruti Car and Motorcycle were seized including the sketch map of American Centre. B.2. Fake tax token and registration certificates were also seized from Tilzala as well as Hasrat's house. Investigation revealed that the Maruti Car was stolen from Delhi and the complaint for theft of car was lodged with Manas Saravar Police Station by its owner. P.W. 99 proved that the Car involved in the incident was the same Car which was stolen from Delhi. Mukesh Thakkar (P.W. 28) purchased the Motorbike. He sold it to Debasis Ghosh being P.W. 29 who sold it to Ranadeep Das (P.W. 30) who sold it to Hargovind Prasad Shaw (P.W. 33) who sold it to Rezwan Ahmed (P.W. 33). Rezwan was a mechanic. He sold it to Sohail Akhtar. They all identified the Motorcycle. Sk. Salam (P.W. 55) repaired the Motorbike at the instance of Nasir in January 2002. B.3. Aftab was arrested on March 22, 2002. Boby and Hasrat were arrested on March 6, 2002. Rohit was arrested on April 6, 2002. Adil and Monti were arrested on February 6, 2002. B.4. Investigation further revealed, Nasir and Amir became friends while studying in same Madrasa and Asif was the brother of Amir. Asif came in contact with Aftab at Tihar Jail when they were in jail custody. Such fact was corroborated by Nadir Ahmed Khan (P.W. 46). Nadir was a friend of Asif. Asif went to Kashmir and became zehadi and came back to Kolkata. After arrest three of the accused being Nasir, Boby and Rohit made confessional statement before the Magistrate under Section 164 Criminal Procedure Code. They however retracted such confession at a much belated stage and that too after the trial had started. We would deal with the confessional statement in detail little later. B.5. During investigation several incriminating documents were seized which included one diary and a letter. The letter was addressed to the widow of Asif by Aftab as referred to hereinbefore whereas the diary contained several payments made various persons. The diary also noted particulars of the Maruti vehicle being BRK 4907. According to the investigating team the diary / note book belonged to Aftab.
(3.) C. GIST OF EVIDENCE Let us analyze the evidence topic wise. C.1. RAMLILA & TANDOOR MOHAL (JANUARY TO NOVEMBER 2000) Boby, Rohit, Raju used to chat at Ramlila Park. They came in contact with Asif and then Aftab. Aftab told all of them (Boby was not present) that they should abduct big business man to make money and for that purpose they would have to impersonate CBI Personnel and forge Government documents including tax token, motor vehicle registration certificates etc. Rohit was entrusted to get those printed, Asif paid him Rs. 10,000.00. Boby was called over phone. Boby was entrusted to do the job of printing. He initially did not agree. He later on agreed to do it in lieu of money. He was paid Rs. 10,000.00 by Asif. Boby later on contacted Raju alias Hasrat and persuaded him to print those in exchange of money. Raju printed those and handed over back to Boby. Raju never came in contact with any other person except Boby (at least such evidence did not come out). Hasrat started pressurizing Boby for the final payment who, in turn, asked Rohit, Aftab and Asif and called Rohit at Tandoor Mohal and told him that the payment wold be made later on. However, such payment was never made. C.2. CONSPIRACY Asif was killed in police encounter. According to the core group, such encounter was fake. They decided to take revenge. They took Tilzala flat and converted one room for garage to park Maruti car and Motorbike. They took flat at Hazaribag on rent for post hide out. They got fake passports done from Patna from a person known to Nasir. Zahid and Sadakat possessed two AK-47 rifles shown to others including Nasir. They held a meeting at Hazaribag and decided to attack police party. All of them assembled at Tilzala flat before the final attack. Aftab was the master-mind giving necessary instructions initially to Nasir and then to Zahid and Sadakat through E-mails and/or phone. C.3. TEA STALL INCIDENT (JANUARY 20, 2002) Nasir took out the Maruti Car from Tilzala garage. Dilip saw him taking out the Car and the Motor Bike. They got involved in the tea stall incident referred to above as watched by Sanjoy Paul and corroborated by Jayanta Kumar Bose. Both of them identified the Car and the bike as well as the persons involved in the incident. C.4. E-MAIL Two E-mails dated January 29, 2002 would corroborate the involvement of Nasir and Aftab. E-mails were exchanged possibly just before Nasir was arrested. The E-mails would show that Nasir informed Aftab that Zahid was killed by the police. The person involved in passport episode was also arrested at Patna and he was leaving Kolkata for a safe place. C.5. AMERICAN CENTRE (JANUARY 22, 2002) In the morning at about 6:15 a.m. Barun Pal was supervising the change over. The motor cyclist started firing indiscriminately and Barun tried to retaliate by taking out his revolver. However, he could not do it as he was made a target. He could save himself by ducking. Anil Kar was asked to investigate. He interrogated the injured police personnel and other witnesses. Altogether eighteen police personnel were injured with gunshot injury. Five of them succumbed to their injury and the others except one were treated and discharged subsequently. Two civilians including one security guard also sustained injury. The Motor cyclist came from north to south direction. The person driving the Motor cycle was firing from his pistol whereas the pillion rider was firing from AK-47. The entire incident took place for about five to ten minutes. C.6. HAZARIBAG On January 27, 2002 Delhi Police Team came to Hazaribag and conducted a joint raid with Hazaribag police at Khirgaon flat. Salim died instantly. Zahid was injured and died subsequently. Zahid made a dying declaration to the police admitting his involvement in American Centre shoot out incident. Hajaribag police informed Kolkata counterpart who rushed to Hazaribag and after completion of formalities one AK-47 rifle seized from Zahid was brought to Kolkata which was subsequently returned to Hazaribag police as the forensic expert opined that the bullets involved in American Centre incident did not match the said rifle. C.7. INVOLVEMENT C.7.1. On a sum total and analysis of the facts and evidence that came out during investigation and/or examination of the materials seized by the investigating team exhibited at the trial we have narrowed down the involvement of the accused being the appellants in the above appeals and facing death sentence as per the order of the learned Sessions Judge. Aftab and Asif were the master-mind. They included Zamiluddin Nasir in their core group. Nasir was an active associate working at the dictate of Aftab and/or Asif. Asif died in later part of 2001 which gave rise to the conspiracy hatched by the core group as a result of which the shoot-out took place at American Centre. If we consider the confessional statement of Nasir we would find his deep involvement in waging war as against the country being an active associate of Aftab and Asif. Pertinent to note, the confession was made by Nasir immediately after his arrest whereas he retracted the same after more than one year and that too, after the trial had already started. We have considered the evidence of the learned Magistrate. We have also considered the confessional statement. We do not find any reason to discard the same merely because he retracted the same subsequently. C.7.2. The matter can be viewed from another angle. The factum of involvement as would come out from such confessional statement got corroboration from the other witnesses. The involvement of the Car and the Motorbike got proved as being identified by various witnesses including Sanjoy Pal and Jayanta Kumar Bose. Dilip Kumar Singh, the mechanic who repaired the Motorcycle also proved the involvement of Nasir. The letter of Aftab to the widow of Asif was also proved through the handwriting expert. The E-mails made everything clear and transparent. It is true that Aftab was not present at the time of shoot-out incident. It is also true that Nasir was not present at the place of occurrence. But their involvements were apparent from the evidence that came out and discussed hereinbefore. They were equally responsible, so as Zahid and Sadakat being the shooters involved in the shoot-out incident. C.7.3. We place strong reliance on two exhibits being the notebook of Aftab and the letter written by Aftab to the widow of Asif. Handwriting of Aftab was certified by the hand writing expert who deposed in the trial. The contents of the letter would show that Aftab knew about the decision to take revenge for the killing of Asif. C.8. PRINTER GROUP Rohit, Boby and Raju (Hasrat) formed the printer group. They were involved in the matter of printing fake certificates. Rohit and Boby made confessional statement. Their confessions got corroboration from the witnesses discussed above. Involvement of Raju was also proved by recovery of blank tax token from his residence. Their involvement in such printing episode was amply proved. However, we do not get any evidence which would link such printing episode either with the conspiracy of waging war against the country or implementation of such decision through shoot-out incident. It is true that two of them were involved in chatting at Ramlila Park. Rohit knew about the purpose of printing as disclosed to him by Aftab that those would be recovered for abduction purpose for making money. Boby also in his confessional statement stated that Rohit told him that those would be used for criminal activities within India as told to him by Asif and Aftab. Hence, we are of the view that this trio although did the printing job being lured by money, did not have any involvement in the subsequent conspiracy and/or the shoot-out incident resulting therefrom. C.9. MONTI &ADIL C.9.1. These two persons were residents of Hazaribag. They were distantly related with Nasir. Monti was the distant maternal uncle of Nasir whereas Adil was the brother in-law of Monti. Nasir used to go to Hazaribag and stay at Adil's place. According to Nasir, Monti told him that Adil would join them soon. Such statement, if we give full credence, would prove Monty's involvement. However it does not involve Adil as it did not have any corroboration. From Abdul Mazid we come to know that Monti was present at the flat of Nasir and he introduced Zahid and Sadakat as staff of Nasir. Kausalya Nand Chowdhury, Hazaribag Police Inspector deposed that Monti gave shelter to the terrorists at Hasmia Colony. Kausalya also deposed that one raid party also proceeded towards Hasmia Colony on January 27, 2002. We however do not find the result of such raid either from Kausalya Nand Chowdhury or any other witness. What happened at Hasmia Colony, is not known to us. If we take the case of Adil we do not find any evidence indicating his involvement in the crime save and except Nasir's statement that too as per Monty's information to the effect that Adil would join them soon. We hardly find any evidence involving Adil in the incident. C.9.2. So far Monty is concerned, statement of Kausalya Nand Chowdhury or Abdul Mazid would not be sufficient to implicate him. He was present in Nasir's flat. He might not be knowing the actual identity of Sadakat or Zahid and, as such, he introduced them as staff of Nasir. From Nasir's statement we find that Monty's E-mail I.D. was Aaa Mere 7, Yahoo.co.in. From E-mails we find that Nasir asked Monty to pray to God for his success. If we give full credence to the E-mail we would have to hold that the addressee might be knowing of the conspiracy. However such evidence without any corroboration and/or support from any other material would not be sufficient to implicate him. C.9.3. From the confessional statement of Nasir we find that Monti drove the Motorcycle from Hazaribag to Kolkata and delivered it at Kolkata and left for Hazaribag. We also came to know that he was involved in Jaipur incident in money extortion case. Jaipur episode was disbelieved by the learned sessions Judge who acquitted the Jaipur accused of the charges. If we give full credence to Nasir's statement on the Motorcycle delivery it would only prove that he drove the Motorcycle and delivered it at Kolkata. This might be at the request of Nasir without knowing the purpose for which it would be used. Merely because he drove the Motorcycle to Kolkata and delivered it there it would be totally unsafe to come to a conclusion that he was involved in the incident.;