The Supreme Court on Thursday dismissed a plea of Lashkar-e-Taiba (LeT) terrorist Mohammad Arif alias Ashfaq seeking review of its verdict awarding death penalty to him in the sensational 2000 Red Fort attack case that left three Army jawans dead.
The apex court said there was nothing on record which can be taken to be a mitigating circumstance in Arif’s favour and the fact that there was a ”direct attack” on the unity, integrity and sovereignty of India completely outweighs the factors which may even remotely be brought into consideration as the mitigating circumstances.
Dealing with the issue raised by the petitioner that the courts concerned had erred in allowing call records to be admitted in evidence in the absence of an appropriate certificate under section 65-B of the Indian Evidence Act, a bench headed by Chief Justice Uday Umesh Lalit said the other circumstances on record do clearly spell out and prove beyond any doubt his involvement in the crime.
The bench, also comprising justices S R Bhat and Bela M Trivedi, said it is well accepted that the cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before death sentence is awarded.
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”Coming back to the instant case, 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,” it said.
”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 bench said in its 40-page judgement.
According to the prosecution, on the night of December 22, 2000, some intruders had entered the area where the unit of 7 Rajputana Rifles of the Indian Army was stationed inside the Red Fort here.
The police had said that in the firing that was opened by the intruders, who had thereafter left by scaling the rear side boundary wall of the Red Fort, three Army jawans had lost their lives. Arif was awarded death sentence by a trial court in October 2005 and the Delhi High Court had affirmed the view of the trial court in September 2007.
He had then approached the apex court challenging the high court’s verdict. The top court had in August 2011 affirmed the death sentence awarded to Arif. Later, his review petition came up before a two-judge bench of the apex court which dismissed it in August 2012. The curative petition was also rejected in January 2014.
Thereafter, he had filed a petition submitting that review petitions in matters arising out of award of death sentence be heard by a bench of three judges and in open court.
A constitution bench of the apex court had in its September 2014 judgement concluded that in all cases in which death sentence was awarded by the high court, such matters be listed before a bench of three judges.
Before the September 2014 verdict, the review and curative petitions of death row convicts were not heard in open courts but were decided in chamber proceedings by circulation.
In January 2016, a constitution bench had directed that Arif shall be entitled to seek re-opening of the dismissal of the review petitions for an open court hearing within one month.
In its verdict delivered on Thursday, the apex court noted that challenge has been raised principally on four grounds, including that 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.
It said one of the grounds raised by Arif was that his disclosure statements 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. The bench noted that the basic submission advanced by Arif’s counsel was about the admissibility of electronic record being call data records (CDRs).
The top court referred to some previous judgements delivered by the apex court including on the issue of admissibility of call records without there being appropriate certificate under section 65-B(4) of the Evidence Act.
”In conclusion, it must therefore be observed that 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,” it said.
The bench said the disclosure statement was held to have been proved by the courts in the matter and in review jurisdiction, it would not be possible to enter into questions regarding admissibility of such disclosure statement on issues of fact.
It said the disclosure statement had led the police to a hide out here and when the police team arrived with Arif, there was firing on the police and after one Abu Shamal alias Faisal had 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,” the apex court said.
”Consequently, we do not find any merit in the instant review petitions, which are accordingly dismissed,” it said.