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Petitioner: Muhammad Hussain alias Zulfikar Ali VS Respondent: State (Government of NCT), Delhi
Court Name: Supreme Court of India Judge(s): H. L. Dattu, Chandramauli Kumar Prasad Title: Muhammad Hussain alias Zulfikar Ali vs State (Government of NCT), Delhi Case No.: Criminal Appeal No, 1091 of 2006 Date of Judgment:2012-01-11 Reported As: 2012 SCMR 1610, 2012 PSC (Crl) 873 Result: Appeal allowed.
JUDGMENT
JUDGMENT ' H.L. DATTU, J. -- A convict, who is facing the threat of death gallows, is before us in this appeal. He is an illiterate foreign national and unable to engage a counsel to defend himself. He is tried, convicted and sentenced to death by the Additional Sessions Judge, Delhi in Sessions Case No, 122 of 1998, dated 3.11.2004 without assignment of counsel for his defence. Such a result is confirmed by the High Court on a reference made by the Trial Court for confirmation of death sentence and has dismissed the appeal filed by the appellant vide its order dated 4.8.2006. 2. The convict (hereinafter referred to as "appellant") is charged, convicted and sentenced under sections of Indian Penal Code (in short, "IPC") and also under Section 3 of the Explosive Substances Act, 1908. The case of the prosecution, as noticed by the High Court, which appears to be accurate statement of facte, proceeds on those lines:--- "(2) On 30.12.1997 at about 6.20 g.m. one blue line bus No, DL-IP-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at the Ram Pura Bus Stand on Rohtak Road for passengers to get down. The moment that has stopped there on explosion took place inside the bus because of which in floor got ripped apart. Four passengers of that bus, namely, Ms. Tapoti, Taj Mohd. Narain Jha and Vajiv Verma died and twenty-four passengers including the conductor of that bus were injured due to that explosion. Two policeman (P.Ws. 41 and 52) were on checking duty at that but stop at the time of blast. On their informing the local police station police team reached the spot. Crime team and bomb disposal squad were also called and the damaged bus was inspected and from the spot debris etc. were lifted and sealed. (3)On the basis of the statement of Head Constable Suresh (P.W.41), who was one of the two policemen on duty at the bus stop of Rampura, a case under Section 307, I.P.C, and Sections 3, 4
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and 5 of the Explosive Substances Act was registered at Punjabi Bagh Police Station. Investigation commenced immediately. With the death of some of the injured persons on the day of the incident itself Section 302, I.P.C, was also added. Hunt for the culprits responsible for that macabre incident also started. However, for over two months nobody could be nabbed. (4)lt appears that as a result of different incidents of bomb blasts in Delhi including the present one the intelligence agencies , became more active, and started, gathering information about the incidents of bomb blasts in the city, lt came to light that some persons belonging to terrorist, organizations were actively operating in the city of Delhi for causing terror by killing innocent people and causing damage to public property by exploding bombs. On the basis of secret information the police raided some houses indifferent parts of Delhi on 27.2.1998 and from those houses hand grenades and material used for making bombs was recovered in large quantity. The chemicals recovered were sent to CFSL, which confirmed that the same were potassium chlorate and sulphuric acid and were opined- to be constituents of low explosives. Some persons were arrested also and during interrogation they had disclosed to the police that they were members of a terrorist organization and their aim was to create terror and panic in different parts of the country by exploding bombs to take revenge for the killings of innocent muslim (sic) in lndia and further that they had come to India for Jehad. On 27.2.1998 itself the police had registered a case vide F.I.R. No, 49 of 1998 under Sections 121/121-A, I.P.C, and Sections 3, 4 and 5 of the Explosive Substances Act as well under Section 25 of the Arms Act at Main Delhi Railway Station. On the basis of information provided, by the apprehended terrorists the police made more arrests including that of one Muhammad Hussain (who now is the appellant before, us in Criminal Appeal No, 41 of 2005 and reference to him .will now onwards be made as 'the appellant'). The appellant was apprehended when his house in Lajpat Nagar was raided pursuant to the information given by other apprehended terrorists. As per the prosecution case the appellant himself had opened the door on being knocked by the police and on seeing the police party he had tried to fire at the policemen from the pistol which he was having in his hand at that time but could not succeed and was apprehended. His pistol was seized, lt appears that during the interrogation by the police the appellant and three more persons, namely, Abdul Rehman, Muhammad Ezaz Ahmed and Muhammad Maqsood confessed about their involvement in the present incident of bomb blast in the bus on 30.12.1997, That information was then passed over to Punjabi Bagh police station on 18.3.1998 by the Crime Branch and accordingly all these four persons were formally arrested for the present case also on 21.3.1996 for which date the investigating officer of the present case had sought their production in Court by getting issued production warrants from the Court seized of the above-referred case of F.I.R. No, 49 of 1998. The investigating officer moved an application before the concerned Court on the same day for holding of Test Identification Parade (TIP) in respect of the appellant in view of the suspicion expressed by P.W.1 Darshan Kumar, the conductor of the bus involved in the blast regarding one passenger who had boarded his bus from Paharganj bus stop along with, a rexine bag forgoing to Nangloi but instead of going up to Nangloi he had got down from the bus at Karol Bagh leaving his rexine bag underneath the seat which he had taken and which was near the seat of the conductor. The conductor had given the description of that passenger. As per the prosecution case the explosion had taken place below that seat which that passenger had occupied and underneath which he had kept his rexine bag. Although on 21.3.1998 the appellant did not object to holding of identification parade but he refused to joint test identification parade which was fixed for 23.3.1998 stating that police had taken his photographs. (5)During the investigation of the present case the debris collected from the place of bomb blast and some damaged pieces of the bus etc. were sent to Central Forensic Laboratory (CFSL) and after examination it was revealed that in the seized material contained explosive mixture of
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chlorate, Nitrate, Sulphate and Sugar were , detected. Mixture of these chemicals, as per CFSL, report Exh.P.W.34/A,is used for making explosives/bombs and the mixture could have been initiated by the action of sulphuric acid and the mixture was "explosive substance". (6)On completion of investigation of the present case the police flied a charge-sheet in Court against four accused persops for the commission of offences under Sections 302/307/120-B, I.P.C and Sections 3 and 4 of the Explosive Substances Act. ln due course the four persons were committed to Sessions Court. The learned Additional Sessions Judge vide order dated 18.2.1999 discharged three accused persons namely, Abdul Rehman, Muhammad Maqsood and Ezaz Ahmed while against fourth accused Muhammad Hussain alias Julfikar (the appellant herein) charges under Sections 302/307, I.P.C, and Section 3 and in the alternative under Section 4(b) of the Explosive Substances Act were framed. The appellant had pleaded not guilty to the charges framed against him and claimed to be tried." 3.The prosecution had examined as many as 65 witnesses and on conclusion of prosecution evidence, statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (in short, "Cr.P.C.), who had denied his guilt and pleaded false implication. The Trial Court, upon appreciation of evidence of the prosecution witnesses, held the appellant guilty of the charges and accordingly, imposed death penalty. The conviction and sentence is affirmed by the High Court. At this stage itself, it is relevant to notice that the appellant 1iad pleaded, both before the Trial Court and the High Court, that he was not given a fair and impartial trial and he was denied the right of a counsel The High Court has noticed, this contention and has answered against the appellant, ln the words of the High Court:-- "45 Faced with this, situation Mr. Luthra came out with an argument that this, case, in fact, needs to be remanded back to the Trial Court for a fresh trial because the Trial Court record would reveal that the accused did not have a fair trial inasmuch as on most of the hearing when material witnesses were examined he was unrepresented and the Trial Court did not bother to provide him legal aid at State expense and by not doing that the Trial Court, in fact, failed to discharge its pious duty of ensuring that the accused was defended properly and effectively at all stages of the trial either by his private counsel or in the absence of private counsel by an experienced and responsible amicus curiae. Mr. Luthra also submitted that, in fact, the learned Additional Sessions Judge himself should have taken active part at the time of recording of evidence of prosecution witnesses by putting questions to the witnesses who had been examined in the absence of counsel for the accused. lt was contended that the right of the accused ensured to him under Articles 21 and 22 of the Constitution of lndia for a fair trial has been, thus, violated, ln support of this argument which, in fact, appears to us to be the sheet anchor for the appellant, Mr. Siddharth Lutha cited some judgments also of the Hon'ble Supreme Court which are reproduced as AIR 1997 SC 1023: (1997 AIR SCW 973), 1994 Supp (3) SCC 321, AIR 1986 SC 991 and 1983 (III) SCC 307: (AIR 1983 SC 624). One judgment of Gauhati High Court reported as 1987 (1) Crimes 133, "Arjun Karmakar v. State of Assam" was also relied upon by Mr. Luthra. 46.There can be no dispute about the legal proposition put forward by the learned counsel for the appellant that it is the duty of the Court to see and ensure that an accused in a criminal trial is represented with diligence by a defence counsel and in case an accused during the trial remains unrepresented because of poverty etc., it becomes the duty of the Court to provide him legal aid at State expense. We find from the judgment of the Trial Court that this point was raised on behalf of the accused during the trial also by the amicus curiae provided to the accused when his private counsel stopped appearing for him. The learned Trial Court dealt with this arguments in para No, 101 of the judgment which is as under:--' "lt is next submitted that. material witnesses have not been cross-examined by the accused and as such, their testimony cannot be read against him. I may add that from the very beginning of
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the trial, the accused has been represented by a counsel Sh. Riaz Muhammad and he had cross- examined some of the witnesses. Later on, when Sh. Riaz Muhammad did not appear in the Court on some dates. Mrs. Sadhna Bhatia was appointed as Amicus Curiae to defend the accused at State expenses. If the accused did not choose to cross-examine some witnesses, he cannot be forced to do so. Moreover, later one accused prayed for cross-examination of P.W.1 Sh. Darshan Kumar, which was allowed though it was filed at a belated stage after a long period of time. The accused did not desire any other witness to be cross-examined. Not only this, statement of P.W.1 Sh. Darshan Kumar was recorded oh 18:5.1999 and he was also present on 3.6.1999 and 13.8.1999, but on all three dates, the cross-examination of this, witness was deferred at the request of the accused, who was ultimately discharged with nil cross-examination. This shows that accused himself was not interested in Cross-examining the witnesses. As such, this submission is also without merit." 47.We have ourselves also perused the Trial Court record and we are convinced that it is not a case where it can be said that the accused did not have a fair trial or that he had been denied legal aid. We are in full agreement with the above-quoted views of the learned Additional Sessions Judge on this objection of the accused and we refuse to accept the plea of the appellant that this case should be remanded back for a re-trial." 4. I have heard learned counsel Mr. Mobin Akhtar for the appellant and Mr. J.S. Atri, learned senior counsel for the State. 5. In this Court, the judgments are assailed, apart from the merits, that the appellant in denied due of law and the conduct of the trial is contrary to procedure prescribed under the provisions of Cr.P.C, and, in particular, that he was not given a fair and impartial trial arid was denied the right of a counsel. Since the aforesaid issue is of vital importance, I have thought it fit to answer that issue before I discuss the merits of the appeal. Therefore, firstly, I will consider the issue; whether the appellant was given a fair and impartial trial and, whether he was denied the right of a counsel. To answer this issue, it may not be necessary to discuss the facts of the case or the circumstances surrounding the prosecution case except so far they reflect upon the afore-said issue. 6. To answer the aforesaid issue, it is necessary to look at the proceedings of the Trial Court which are as under:-- "6.7.1998 Pr.APP All accused in Judicial Custody. All accused stated that they are not in position to engage any lawyer and be provided with a lawyer from legal aid. ' Legal assistance be provided to ail accused from legal aid. ' All accused requested further time for making scrutiny of documents. Allowed. Put up on 20.7.1998 for scrutiny. Sd/- MMI/Delhi 20.7.1998 Pr.APP ' All accused in judicial custody with Sh. V.K. Jain, Adv. Sh. Jain requested time for making scrutiny of documents. Sh. Jain states that he is applying for further lime (illegible) Allowed. Put up on 29.7.1998 for scrutiny. Sd/- MM/Delh 20,7.1998
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29.7.1998 Pr: APP All accused in Judicial Custody with Sh. V.K. Jain, Adv. From Legal Aid. Shri Jain requests for further time. Allowed. Put up on 6.8.1998for scrutiny. Sd/- MM/Delhi 29.7.1998 6.8.1998 Pr.APP All accused in J/C with Sh. Vijay Kr. Jain, Adv. Sh. Jain stated that all accused have been supplied with complete copies of documents filed alongwith the charge-sheet. Hence provision of Section 207, Cr. P. C. are complied with. Present case also pertains to offence punishable under Sections 302/307, I.P.C., and 3, 4, 5, Explosive Substances Act which are exclusively triable by Court of Session. Present case is liable to be committed to Court of Session. I accordingly commit the present case to Court of Session. Accused are directed to appear before Court of Session on 20.8.1998. Ahlmad is directed to send the file complete in all respects to Court of Session. Notice to PP be also issued.Sd/- MM/Delhi 6.8.1998 18.5.1999 Pr: Spl. PP for State. Accused in Judicial Custody. P.W. 1 partly examined and his cross-examination deferred at the request of accused as his counsel Firoz Khan has not out his appearance in the Court. P.W.1 is bound down for the next date of hearing. P. W.2 examined and discharged ' No other P.W. Present except I.O. Satya Prakash present. ' To come up for remaining evidence on 3.6.1999. SdA ASJ/Delhi 18.5.1999 3.6.1999y.- Pr; Spl. PP for the State. Accused present in Judicial Custody with counsel. ' P. Ws. 3, 4 present, examined and discharged. P.W.1. Dorshan Kumar. Ganesh Sharma are present bill they are not examined on the request of defence counsel as he has not gone through the statement. Considering the request, both the witnesses are bound down for next date of hearing. Inspector Satya Prakash I. O. is also discharged (sic.). Now to come for P.E. on 20.7.1999. Sd/- ASJ/Delhi '3.6.1999 20.7.1999 ' Pr: Spl. PP for the State. ' Accused in Judicial Custody with Sh. Feroz Khan, Adv., Amicus Curiae (sic.). P. Ws. 5. 6 and P.W. 7 are examined and discharged. P.W. Darshan Kumar served but absent despite service. Issue B/Win the sum of Rs, 500. P.W. ' Satya Prakash, Insp. is reported to be on leave up
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to26.7.1999 Naw to come up for remaining P.E. for 13.8.1999. Sd/- ASJ 20.7.1999 13,8.1999 ' Present: Spl. PP for the State. ' Accused in Judicial Custody. P. Ws. 1. 8 and 9 examined and discharged. ' No, other P. W. is present except I. O. of this case. ' P.W. Santash Kr. Jha has shifted to VHI. Ghagjai, Distt. Madhumani Panna, Police Station, Mani Patti, Post Office Ghagjari, Bihar. He be summoned at his new address. ' P. W. Ashok Kumar could not be served. He be served through I.O. SI Ashok Kumar is served but he sent a request that he had gone to High Court. ' To come up for RPE on 1.9.1999. Sd/- ASJ/Delhi 4.10.1999 ' Pr: Spl. PP for the State. ' Accused in Judicial Custody. P.Ws.l0, 11. 12 and 13 present, examined and discharged. ' P.W. Santash Kumar Jha is served but absent despite service. ' P.W. Ashok Kumar served but absent request that he had to attend a duty and may be exempted today. ' to present is discharged for today. Witnesses be summoned again. ' List'the matter for evidence on 2.11.1999. Sd/- ASJ/Delhi 4.11.1999(sic.) 2.11.1999 Present: As before. P. W. 14 examined and discharged. ' No other P.W. is present except I.O. Satya Prakash. Mother of Sunil Kr. Sharma is present and submits that he is not in a position to move from bed. Considering her request and there are other number of witnesses to prove the explosion in the bus. Let his name be dropped from the list of witnesses and need not be summoned. ' List the matter for RPE on 3.12.1999. ' Sd/- ASJ/Delhi 27.7.2000 Pr: Add!. PP for the State. Accused in Judicial Custody. P.Ws. 15 to 17 examined and discharged. ' P.Ws. SI Om Prakash and SI Satya Prakash. 10s have sent requests. P.Ws. Dr. K. Goyal and Dr. Ashok Jaiswa l are unserved. Re-summon. Now, List the case for RPE on 25.8.2000. Sd/- ASJ/Delhi 20.9.2000 ' Pr: Addl. PP for the State.
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' Accused in Judicial Custody, P.Ws.l8 and 19 examined, cross-examined and discharged. ' No other witness served for today. ' Now, list the matter for P.E. on 6.11.2000. Sdl- ASJ/Delhi 29.11.2000 ' Present: Addl. PP for the State. ' Accused in Judicial Custody. P.W.20 examined and discharged. No other P.W. is present P.W. $1 Om Prakash is served but absent despite service. Issue BAA/ in the sum of Rs, 500. Entire remaining witnesses be summoned through I.O.on 10.1:2001. Sd/- ASJ/Delhi 10:1.2001 ' Present: Spl. PP for State. ' Accused in Judicial Custody. P.Ws. 21 and 22 examined, cross-examined and discharged. No other P. W. is present except I.O. ' P.W. Rajinder Singh Bist is absem despite service. Issue BA/V against him in the sum of Rs, 500. Now-list the case for RPE on 14.2.2011. Sd/- ASJ/Delhi 14.2.2001 ' Pr: Addi PP for the State. ' Accused in Judicial Custody. P.Ws. 23 and 24 examined, cross-examined and discharged. ' No other witness served for today. ' I.O.SI Om Prakash is absent despite service. Issue BAWs against, him in the sum of Rs, 500. ' Now, put up the case for entire RPE on 14.3.2001. Sd/- ASJ/Delhi 14.3.2001 ' Present: Spl. PP for the State. ' Accused in Judicial Custody with counsel. P.W. 25. P.W.26. P.W.27 examined, cross-examined and discharged. ' No other witness is present, as none else has been served. ' Now list the case for P.E. on 11:4 2001. Sd/- ASJ/Delhi 11.4.2001 ' Present: Spl. PP for the State. ' Accused in Judicial Custody. P. W. 28 examined, cross-examined and discharged. Witnesses Sunil Kumar, Md. Naria. Bhagirat Prasad and Raj Kumar Venna are reported to be not residing at the given addresses. They all be summoned through 10.
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No other P.W. is present. Last opportunity be granted to the prosecution to lead the entire R.P.E. Now to come up for (sic.) 8.5.2001. Sd/- ASJ/Delhi 4.7.2001 Pr. Spl. PP for the State. Accused in Judicial Custody. P.Ws. 29. 30. 31 and 32 examined, cross-examined and discharged. No other witness is served for today. Now put up the case for entire RPE on 13.8.2001. Sd/- ASJ/Delhi 11.2.2002 Present: Addl. PP for the State. Accused is present in Judicial Custody. P. W. 33 examined, cross-examined and discharged. No other P, W. is present except the I. O. Now to come up for RPE on 26.3.2002. Sd/- ASJ/Delhi 26.3.2002 Pr. Addi. PP for the State. Accused in Judicial Custody. P.Ws. 34, 35, 36 and 37 examined, cross-examined and discharged. No other P.W. is present. Now to come up for RPE on 7.5.2002. Sd/- ASJ/Delhi 24.9.2002 Present: Spl. PP for the State. Accused in Judicial Custody. P.W. 42 and P.W. 43 examined, cross-examined and discharged. No other P. W. is present. Now to come up for entire R.P.E, on 18.10.2002. Sd/- ASJ/Delhi 18.10.2002 Pr. Sh. Jitender Kakkar, Addl. PP for the State. Accused in Judicial Custody. P.W.44 and P.W.45 examined, cross-examined and discharged. No other P. W. is present. Now list 1he matter for entire RPE on 13.12.2002. Sd/- ASJ/Delhi 13.12.2002 Present: Accused in judicial custody. Ld. " is on leave today. Illegible 17.1.2003for RPE. Sd/- Reader
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13.12.2002 25.2.2003 ' Pr: Sh. Bakshsh Singh, Spl. PP for State. Accused in Judicial Custody with counsel. Two P.Ws.46 and 47 have been examined, cross- examined and discharged. No other witness is present. Ld. Spl. PP seeks another opportunity for adducing evidence, ln the interest of justice one more opportunity is granted to the prosecution to lead the entire evidence on 26.3.2003. Sd/- ASJ/Delhi 26.3.2003 ' Pr: Addl. PP Sh. Jitender Kakkar, for the State. ' Accused in Judicial Custody. P.W.48 examined, cross-examined and discharged, No other P.W. is present. ' P.W. Vinod Kumar has not been served- ' P. W. Vinod Kumar along with all the public witnesses be summoned through I.O. for 22.4.2003. ' ln the interest of justice, one more opportunity is granted to the prosecution to lead its entire evidence for the date fixed. ASJ/Delhi 22.4.2003 ' Present: Addi PP Sh. Jitender Kakkarfor the State. ' Accused in Judicial Custody, P.W.49, P.W.50 and P.W.51 examined, cross- examined and discharged. Put up for RPE on 9.5.2003. On the request of Ld. APP one more opportunity is given to the prosecution to lead entire remaining evidence. The witnesses be summoned through I.O. Put up for P.E: on 9.5.2003. * ASJ/Delhi 22.4.2003 9.5.2003 Present Sh. Bakshish Singh Spl. PP for the State. Accused in Judicial Custody. P.W.52 has been examined, cross-examined and discharged. No other P. W. is present. None has been served. Both the remaining witnesses be summoned through I.O. ln the interest of justice, one more opportunity is granted to the prosecution to read Sh. Bakshish Singh, Ld. State Counsel is present. P.W.53 Ins. Data Ram has been examined, cross- examined and discharged. No other P.W. exdept the 10 is present, P.W. Vinod Kumar is absent despite service. Issue B/w in the sum of Rs, 500. P.W. Bhagirathi Prasad and Sunil Kumar are reported to be not residing at the given address, investigating Officer of the present case is directed to produce these witnesses on his own responsibility. Last opportunity is granted to the prosecution to lead the entire evidence on 13.8.2003. ASJ/Delhi 15.7.2003 1.9.2003 ' Present: Spl. P.P. for the State. Accused in Judicial Custody. ' Ins. Satya Prakash. I.O. is present. P.W. 54 and P.W. 55 recorded and discharged. No other P.W. is present or served. 10 is discharged for today only. Put up for RPE on 1.10.2003. ASJ/Delhi 1.9.2003
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1.10.2003 ' Present: Spl. P.P. for the State. ' Accused in Judicial Custody, lt is 2.35 p.m. Heard. P. W. 56 recorded and discharged Ins. Tandon and one more witness Vinod are present. However, they were discharged for today as they have some urgent work. Their prayer is allowed. Put up for RPE on 1.11.2003. The accused is directed to bring his advocate on next date. ASJ/Delhi 1.10.2003 7. The recording in the order sheet of the Trial Judge is not accurate. I say so for the reason that examination of witnesses from 1 to -56 was done when accused was not represented by an advocate, i have come to this conclusion after carefully reading the evidence of these witnesses recorded by the learned Trial Judge. By way of illustration, I have extracted evidence of some of the witnesses recorded on different dates:-- "P.W.1 ' Darshan Kumar ' Son of Fakir Chand. Age 30 years, Driver; resident of B-48, Piragarhi, New Delhi-43. ' I was working as conductor in blue line bus No,DLIP3088 and the said bus used to ply from Nangloi to Ajmeri Gate. x x xx x x deferred as defence counsel…
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