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Case Analysis: N.C.T of Delhi v/s Navjot Sandhu @ Afsan Guru

State (N.C.T of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 11 SCC 600 is famously known as the Parliamentary Attack case.

The Division Bench of High Court pronounced its judgement on 29.10.2003 where it dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru and confirmed the death sentence imposed on them. The High Court allowed the appeal of the State in regard to sentence under Section 121 IPC and awarded them death sentence under that Section also. The High Court allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and acquitted them of all charges.

The judgment of the High Court gave rise to 7 appeals-two appeals preferred by Shaukat Hussain Guru and one appeal preferred by Mohd. Afzal and four appeals preferred by the State/Government of National Capital Territory of Delhi against the acquittal of S.A.R. Gilani and Afsan Guru.

The Respondent of the case, Afsan Guru was the wife of Shaukat Hussain Guru. S.A.R Gilani was teacher in Arabic in Delhi University and he had officiated the marriage ceremony of the accused Shaukat Hussain Guru and Navjot Sandhu (Afsan Guru) who had convert to Islam.

Case Details:
Petitioner: State (N.C.T of Delhi) v/s Defendant: Navjot Sandhu @ Afsan Guru
Citation: 2005 11 SCC 600
Criminal Appeal Number: 373- 375 of 2004
Court: The Supreme Court of India
Decided on: 4th August 2005
Counsel for the State: Mr. Gopal Subramnium
Counsel for the Defendants: Mr. Shanti Bhushan (Shaukat), Mr. Sushil Kumar (Afzal), Shri Ram Jethmalani (S.A.R Gilani)
Bench: Justice P. Venkatarama Reddi & Justice P.P. Naolekar

Facts of the Case
Five heavily armed persons entered the Parliament House complex in a white Ambassador Car on 13th December, 2001. They were heavily armed with automatic assault rifles, pistols, hand and rifle grenades, electronic detonators. The Vice President's carcade was waiting to depart due to which they were unable to get free and easy access to the Parliament House building.

Their attack failed due to the immediate reaction of the security personnel present at the spot and complex. There was a fierce gun-battle lasting for nearly 30 minutes. As mentioned earlier, nine persons including eight security personnel and one gardener lost their lives in the attack and 16 persons including 13 security personnel, received injuries. The five assailants were killed.

The police (PW1 and his team of officers) found the following:
  • A white ambassador car with licence no. DL3CJ1527 with a VIP red light.
  • Sticker of the Home Ministry (fake) on the windshield of the car.
  • Six fake identity cards (Anil Kumar, Raju Lal, Sunil Verma, Sanjay Koul, Rohail Sharma and Rohail Ali Shah).
  • One fake identity card of Cybertech Computer Hardware Solutions.
  • Two slips of paper containing five domestic mobile phone numbers and two UAE numbers.
  • Three SIM cards inside three phones and three other SIM cards were recovered from the purse of Mohammed.
  • One handwritten sheet of paper containing the topographical details of the Parliament House.

Statutes Discussed in the Judgement
  • Indian Penal Code:
    • Section 34 (Acts done by several persons in furtherance of common intention)
    • Section 120B (Whoever is a party to a criminal conspiracy to commit an offence punishable with death)
    • Section 123 (Concealing with intent to facilitate design to wage war)
  • The Code of Criminal Procedure
    • Section 39 (Public to give information on certain offences)
    • Section 161 ( Examination of witnesses by police)
    • Section 162 (Statements to police not to be signed: Use of statements in evidence)
    • Section 164 ( Recording of confessions and statements)
    • Section 173 (Report of police officer on completion of investigation)
    • Section 196 (Prosecution for offences against the State and for criminal conspiracy to commit such offence)
    • Section 313 (Power to examine the accused)
  • Indian Evidence Act
    • Section 8 (Motive, preparation and previous or subsequent conduct)
    • Section 10 (Things said or done by conspirator in reference to common design)
    • Section 11 (When facts not otherwise relevant become relevant)
    • Section 27 (How much of information received from accused may be proved)
    • Section 32(4) (gives opinion as to public right or custom, or matters of general interest)
    • Section 52 ( In civil cases character to prove conduct imputed, irrelevant)
    • Section 63 (Secondary evidence)
    • Section 65A (Special provisions as to evidence relating to electronic record)
    • Section 123 (Concealing with intent to facilitate design to wage war)
    • Section 114 (Court may presume existence of certain facts)
    • The Prevention of Terrorism Act, 2002
    • Section 32(5) (Recording of the statement by CMM and CJM)
    • Section 45 (Admissibility of evidence collected through the interception of communications)
    • Section 50 (Cognizable Offences)
    • The Explosive Substances Act, 1908
    • Section 3 (Punishment for causing explosion likely to endanger life or property)
    • Section 4 (Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property).

Electronic Devices
The inadmissibility of mobile phone call records generated by the public prosecution for consideration during the appeals raised the problem of reliability and reliance on records made by the prosecution. One of the key points presented by the accused was the inadmissibility of the electronic data. The records lose their credibility since there was no prosecution certificate required to admit an electronic record pursuant to Section 65B(4) of the Evidence Act.

In the absence of a certificate issued under Section 65B (2) of the Indian Evidence Act, the information supplied in electronic evidence cannot be supplemented and the secondary evidence in accordance with Section 63 is also unacceptable in the absence of a "competent" witness accustomed to the functioning of the computer during printouts.

The Court held that printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65.

High Court of Delhi's View
The Division Bench of the High Court pronounced its judgement on 29.10.2003. It dismissed the appeals of Mohd. Afzal and Shaukat Hussain Guru and confirmed the death sentence imposed on them. The Court allowed the appeals of S.A.R. Gilani and Navjot Sandhu @ Afsan Guru and acquitted them of all charges.

Supreme Court's View
Mohm. Afzal (Accused 1):
The evidence against him consisted of a confessional statement recorded by the DCP, Special Cell and circumstantial evidence. The court established that it was beyond reasonable doubt that Afzal was a party to the conspiracy and had played an active part in various acts done in furtherance of the conspiracy.

There was sufficient and satisfactory circumstantial evidence to establish that Afzal was a partner in this conspired crime of enormous gravity. He was charged with a life sentence on three counts. However, as he was sentenced to death, the sentence of life imprisonment was naturally merged into the death sentence.

Shakut Guru (Accused 2):
Evidence against him consisted of a confessional statement made to the Deputy Commissioner of Police (Special Cell), which he later retracted by expressing doubts about the 'verbal confession made before Special Cell'. The difference between the case of Afzal and Shaukat in regard to the confessional statements is that the retraction was done by Shaukat much earlier i.e. within a month after it was recorded by the DCP.

As per the Court, due to his illegal omission to inform the police or Magistrate of the plan of Afzal and other conspirators to attack the Parliament, which is an act of waging war, the appellant Shaukat had made himself liable for punishment for the offence under Section 123 IPC.

Therefore, they found Shaukat Hussain Guru guilty under Section 123 IPC and sentenced him to a maximum period of imprisonment of 10 years (rigorous Imprisonment). He was also directed to pay a fine of Rs.25000/- failing which he would suffer R.I. for a further period of one year. The convictions and sentences under all other provisions of the law are set aside.

S.A.R. Gilani (Accused 3):
There was no evidence of any participative acts by him in connection with or in pursuance of the conspiracy. He was in no way connected with the procurement of hideouts, chemicals and other incriminating articles used by the terrorists. The case of the prosecution that Gilani had participated in the meetings at Shaukat's place where the conspiracy was hatched does not stand as the witness did not state that he had seen Gilani visiting the house of Shaukat in the company of five terrorists.

His conversation with his brother about the happening of events in Delhi (The parliamentary attack) and the false version of the remark raises suspicion, but suspicion, however strong, cannot take the place of legal proof. The Court cannot condemn him in the absence of sufficient evidence. The court affirmed the decision of the High Court and upheld his acquittal of all charges.

Navjot Sandhu @ Afsan Guru (Accused 4):
he trial Court had convicted her of the offence under Section 123 IPC, indicating that she had the knowledge of the conspiracy and was concealing the evidence to wage war as there was an illegal omission from her side to inform the police.

The prosecution case against the accused, who is the wife of Shaukat Hussain was weak. The scanty evidence on record does not justify her conviction either on the charges framed against her or under Section 123 IPC for which she was held guilty by the trial Court. The High Court acquitted her of the charge and Supreme Court were of the view that the High Court is fully justified in doing so.

The Supreme Court dismissed the appeal that was filed by Mohd. Afzal and the death sentence imposed upon him were upheld. The appeal filed by Shaukat it was partly allowed as his conviction on other charges was set aside by the court.

The appeals filed by the State against the acquittal of S.A.R. Gilani and Afsan Guru are hereby dismissed.

The Supreme Court was correct to award the death sentence to Mohm. Afzal, but they shouldn't have decreased the punishment of Shaukat Guru and should have upheld the death sentence. As he was very much aware and part of the plan from the start. In my opinion, even he was guilty of waging war and conspiracy.

For S.A.R Gilani, the court acquitted him of all charges, but there were incriminatory circumstances against him, such as his intimacy with Shaukat and Afzal Guru. Also, there were discrepancies in his testimony and a phone call between Gilani and his brother on the day of the attack.

This much evidence is enough to show that there was little involvement of his. Afsan Guru's acquittal is correct as there was not much evidence to showcase her involvement.

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