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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1743/2009

State of J&K           …. Appellant  

Versus

Wasim Ahmed Malik @ Hamid and another. …. Respondents.

J U D G M E N T  

Uday Umesh Lalit, J.

1. This Appeal  under section 19 of the Terrorist  and Disruptive

Activities (Prevention) Act 1987 (hereinafter referred to as the Act)

challenges the judgment and order dated 02.03.2009 passed by the

third Additional Sessions Judge i.e. the Designated Court under the

Act in File No. 26/Challan, acquitting the respondents of the offences

under sections 3 and 4 of the Act, section 120-B read with sections

302, 307 and 34 of Ranbir Penal Code and sections 4 and 5 of the

Explosives Substances Act, 1908 arising out of FIR No. 12 of 1995.   

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2.  On the occasion of celebration of Republic Day on 26.01.1995

at  about  10:20  a.m.  in  Maulana  Azad  Memorial  Stadium,  Jammu,

General  KV Krishna  Rao,  Governor  of  Jammu  and  Kashmir  was

addressing a huge gathering of about 40,000 people including high

dignitaries, VIPs,  Senior Officers of the Govt.,  leaders of  political

parties and respectable citizens when three powerful bomb explosions

took place at the site of public address system, near the dais and on

the  main  road,  outside  the  stadium  resulting  in  killing  of  eight

persons,  and  in  causing  grievous  injuries  to  eighteen  persons  and

disruption of the celebrations.  Soon after the incident FIR No. 12 of

1995 dated 26.01.1995 of PS Nowbad, Jammu (J&K) relating to said

bomb  blasts  was  registered.  At  the  request  of  the  Government  of

Jammu  and  Kashmir,  the  investigation  was  transferred  to  Central

Bureau  of  Investigation  (C.B.I.)  vide  notification  dated  31.01.1995

and  Regular  Case  No.  RC1(5)/95-SIUV was  registered  in  CBI  on

31.01.1995.

3.  After  investigation was taken over by CBI,  one Mohd.  Irfan

was  arrested  on  07.04.1995.  On  09.04.1995  he  made  disclosure

statements leading to certain recoveries. On 24.04.1995 said Mohd.

Irfan  made  a  confessional  statement  which  was  recorded  by  PW2

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Sharad Kumar, S.P. CBI, under section 15 of the Act, inter alia, to the

following effect:

a) Accused Mohd. Irfan  along with Maj Tariq of ISI, Pakistan,  Ahmed  Hassan,  Commander  of  HM, Muzaffarabad,  Mebhoob-ul-Haq,  Commander  of  HM, Sialkot,  Amir-ul-Haq,  Naib  Commander,  HM  and  Zia Kashmiri  and  others  unknown  had  assembled  in  the office of Jamait-e-Islami, Model Town, Sialkot, Pakistan on 26.12.1994 and hatched a conspiracy to kill Governor, J&K,  Senior  officers  of  the  Government  and  other persons with a view to strike terror in Jammu city on the occasion of Republic Day Celebrations. In furtherance of the  said  conspiracy,  accused  Mohd.  Irfan, Menboob-ul-Haq and Ahmed Hassan visited the office of ISI  situated  near  village  Langaryali,  Sialkot  Cantt. Pakistan on 26.12.1994 and held a meeting with Major Tariq, Major Ibrahim, Captain Farhan, Subedar Anwar of ISI,  Pakistan  and  Wasim  Ahmed  @  Hamid  S/o Jallaluddin Malik R/o Asthan Mohalla, Kishtawar, J&K and hatched the plan. In order to achieve the object of the aforesaid criminal conspiracy, they decided to carry two pre-set  time  bombs  across  the  border  to  Jammu  for planting the same, one near the dais and the other near the  pavilion  of  MAM  Stadium  Jammu  and  deputed Mohd. Irfan and Ghulam Nabi for this task.  

b) On 23.12.1994 in the ISI Office, Sialkot at 11:00 a.m.  Mohd.  Irfan  and  Wasim  Ahmed  were  imparted knowledge  about  the  bombs  and  their  functioning  and operations,  which  were  to  be  planted  in  the  MAM

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Stadium. They were also issued instructions to protect the bombs from water and to plant them in the Stadium after the night would set in, to take two detonators for each bomb, to carry the Khurpa for digging the pits, and not to leave any clue of the planting of the bombs at the site. They were also told that the bombs were pre set so to explode  at  the  time  of  the  Republic  Day  function  on 26.01.1995. Capt. Farhan gave Rs. 3,000/- each to Mohd. Irfan and Wasim Ahmed and Rs. 2,000/- to Ghulam Nabi in  Indian  Currency  and  also  a  sack  to  Mohd.  Irfan wherein  he  put  his  boots,  trouser,  khurpa and  pistol. Major Ibrahim provided one time bomb of 5 Kg each to Mohd. Irfan and Wasim Ahmed duly wrapped in black polythene and green coloured sacks. All of them left ISI Office, Sialkot and reached Check Post Jhumian at about 10:00  p.m.  on  28.12.1994.  Subedar  Anwar  and Mahboob-ul-Haq returned to Sialkot, while Mohd. Irfan, Wasim Ahmed and Ghulam Nabi crossed the border and entered  into Indian Territory  concealed  the  bombs and khurpa near River Tawi, outside Jammu city.

c) On 30.12.1994 Mohd. Irfan, Wasim Ahmed  and Ghulam Nabi went to a park where Ghulam Nabi stayed behind  while  Mohd.  Irfan  and  Wasim Ahmed went  to MAM  Stadium  where  Wasim  Ahmed   pointed  out  to Mohd. Irfan a place near the dais and also place inside the fenced area of north Pavilion where bombs were to be planted. On 30.12.1994 at about 7:45 p.m., Mohd. Irfan and Wasim Ahmed took out two explosive devices and khurpa and left for MAM Stadium leaving Ghulam Nabi there. Both carried one explosive device each and entered

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into the stadium along with ‘khurpa’. Inside the stadium, they connected detonators and batteries to the device and planted  two  explosive  devices;  one  near  the  dais  and other near the fenced area of the Northern Pavilion after digging the pits for each bomb. After planting the bombs, they filled both the pits with earth and made shoe marks thereon to avoid suspicion. Thereafter, both left for Tawi Bridge. Mohd. Irfan concealed the ‘khurpa’ in the bushes near  Tawi  Bridge.  Thereafter,  both  Mohd.  Irfan  and Wasim  Ahmed  contacted  Ghulam  Nabi  and  all  three reached Pakistani Check Post Jhumian after crossing the international border from where they were taken to the ISI Office Sialkot. Maj. Tariq, Maj. Ibrahim, Maj. Aamir, Capt. Farhan praised Wasim Ahmed and Mohd. Irfan for accomplishing the task.  As desired by Captain Farhan, Subedar Anwar paid Rs. 5,000/- to Mohd. Irfan for the work done by him.  

d) On  03.01.1995  said  Mohd.  Irfan  and  Wasim Ahmed were again deputed by Mahboob-Ul-Haq to plant one time bomb of 10 Kg. and two bombs of 5 Kg. each outside MAM Stadium, Jammu and pursuant thereto they dug a pit on the main road leading to that stadium and put the bomb weighing 10 Kg. on 09.01.1995. The other two bombs of 5 Kg. each could not be put because of rains, which bombs were then concealed near Tawi River.  

e) On  26.01.1995  Mohd.  Irfan,  Mahboob-ul-Haq, Aamir-ul-Haq, Amzad and 2/3 other Kashmiri boys were present in the office of Jamait-e-Islami, Sialkot. They had waited for the news of bomb explosions, killing of VIPs

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and  general  public  in  Jammu.  At  about  12  noon  they received news about the explosions in MAM Stadium, in which lot of persons had been killed and several  other injured.  After  the  incident,  Maj.  Tariq,  Capt.  Farhan, Subedar Anwar called Mohd. Irfan, Wasim Ahmed and Mahboob-ul-Haq to ISI Office, Sialkot and praised them for planting the bombs and declared that  their  mission had been successful even though the Governor of J&K had providentially escaped. On 30.01.1995 Mohd. Irfan, Wasim  Ahmed  and  Mahboob-ul-Haq  visited  office  of Jamai-e-Islami, Muzaffarabad and met Salauddin, Chief of the Hizbul Mujahideen who declared that their mission was to spread terrorism in J&K which got fulfilled with the  bomb  explosions  in  MAM  Stadium.  Salauddin awarded one shield and Rs. 10,000/- each to Mohd. Irfan and Wasim Ahmed.  

4. After  completion  of  investigation,  charge  sheet  was  filed  on

28.09.1995  in  the  Court  of  the  Special  Judge,  Designated  TADA

Court, Jammu (J&K) u/s 120-B RPC r/w section 302, 34, 307 RPC, 4

and 5 of the Explosives Substances Act and section 3(2), 4 and 6 of

the  Act.  The  charge  sheet  was  filed  against  Mohammad  Irfan  @

Anwar, a Pakistani National and other absconding accused. While the

matter was pending before the Trial Court, Ghulam Nabi Guide was

arrested  by  J&K  police  on  25.10.1995.  Upon  CBI  making  an

appropriate application, custody of Ghulam Nabi Guide was granted

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to CBI on 04.12.1995. While  in custody, said Ghulam Nabi Guide

made  a  confessional  statement  which  was  recorded  by  PW1  S.K.

Bhatnagar Superintendent of Police, CBI on 18.12.1995 u/s. 15 of the

Act wherein he confessed about his involvement as also that of Mohd.

Irfan, Wasim Ahmed Malik @ Hamid, Major Tariq, Major Ibrahim,

Major Amir, Captain Farhan,  Subedar Anwar (all  of  ISI, Pakistan),

Ahmed  Hassan,  Commander  of  HM,  Sialkot,  Amir-ul-Haq,  Naib

Commander, HM Sialkot and Zia Kashmiri R/o Kupwara, J&K in the

criminal  conspiracy  culminating  in  the  explosions  at  the  MAM

Stadium,  Jammu  26.01.1955.  Supplementary  charge  sheet  was

therefore  filed  against  him.  During  the  pendency  of  the  trial,  in  a

jailbreak  said Mohd. Irfan escaped from high security jail. While the

trial  was  pending  and  had  reached  the  concluding  stage,  another

accused named Wasim Ahmed Malik, who was marked as absconding

accused,  was  arrested  on  15.01.2009.  Since  according  to  the

prosecution there was sufficient evidence in the form of confessional

statements  of  Mohd.  Irfan  and  Ghulam  Nabi  Guide,  said  Wasim

Ahmed Malik was supplied with copies of all the relevant material

and  produced  before  the  Trial  Court.  Thus  only  two  accused  i.e.

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Ghulam Nabi Guide and Wasim Ahmed Malik, present respondents,

were  tried while the others remained absconding.  

5. The evidence led by prosecution during the trial was to prove

following aspects, namely:-

a) That  there  were  three  bomb  explosions  on 26.01.1995 at 10:20 a.m. at the places in question,  i.e. near the dais and at the site of public address system in MAM  Stadium  and  on  the  main  road  outside  the Stadium.  b) That at  the time of such bomb explosions,  large gathering  had  assembled  while  the  Governor  was addressing  on  the  occasion  of  Republic  Day Celebrations.  c) That  it  resulted  in  death  of  eight  persons  and caused  grievous  injuries  to  eighteen  persons  and disruption of the Celebrations.  d) That the act in question was a terrorist act, within the meaning of the Act.  e) That it  was an act  of  conspiracy hatched by the accused  being  tried  before  the  court  and  by  the absconding accused and f) That  the  involvement  of  the  accused  before  the court was completely made out.  

6. Various witnesses were examined and material  was produced

by the prosecution to establish its case. Since the aspects (a) to (d)

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mentioned  in  the  preceding  paragraph  were  never  challenged,  we

refrain from dealing with evidence pertaining to said aspects (a) to (d).

Proceeding  on  the  basis  that  it  was  a  terrorist  act,  where  bomb

explosions were caused with the idea of terrorizing people in general

and  those  who  had  assembled  there  at  the  gathering  in  particular,

which resulted in loss of life of eight persons and injured eighteen

persons, we confine the discussion as regards aspects (e) to (f) i.e. the

role of the accused in the act in question. The trial Court had also

confined itself to the question whether involvement of the respondents

had been made out or not.  

7. In order to bring home the involvement of the respondents the

prosecution relied upon the confessions of Mohd. Irfan and Ghulam

Nabi  recorded  under  section  15  of  the  Act.  Apart  from  such

confessions and the statements of these accused leading to recovery of

certain  facts,  no  direct  evidence  could  be  placed  on  record.  The

evidence  principally  relied  upon  by  the  prosecution  can  be

summarized as under:  

A) While in custody, accused Mohd. Irfan upon being

interrogated,  made  three  disclosure  statements,

“EXPW-BD/2,  EXPW-S/3  and  EXPW-S/2”.   The

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testimony  of  PW86  Harbhajan  Singh,  Investigating

Officer  shows  that  pursuant  to  these  disclosure

statements two khurpas were recovered and identification

of the shop from where a khurpa was purchased was also

got done.  Those khurpas were identified in court.  The

factum  of  such  disclosure  and  consequential  recovery

was also supported by panch witnesses PW23 S.K. Sudan

and  PW24  Gautam  Goyal.   PW67  Rajesh  Kumar,

Inspector, CBI also testified to similar effect.  

B) On  22.04.1995  another  disclosure  statement

“EXPW-BR”  was made by accused Mohd. Irfan leading

to  the  recovery  of  a  bomb  vide  Seizure  Memo

Ext.PW/BR/1.   The evidence of PW86 Harbhajan Singh,

PW67  Rajesh  Kumar  and  panch  witness  PW26  B.R.

Saraf were relied upon in that behalf.

C) On 22.04.1995 Mohd. Irfan expressed his desire to

confess  and was produced before PW2 Sharad Kumar,

Superintendent  of  Police.   PW2  Sharad  Kumar  gave

warning to the accused that the confession could be used

against  him  and  also  gave  him  time  to  reflect.   The

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accused  was  again  presented  before  the  witness  on

23.04.1995  on  which  date  the  confessional  statement

Ext.PW-SK-3 of accused Mohd. Irfan was recorded by

PW2 Sharad Kumar.  The gist of the confession and the

facts  as  disclosed  therein  are  dealt  with  earlier.  The

confession of Mohd. Irfan clearly stated about the roles

of the confessing accused as well as the co-accused.   

D) After the arrest of Ghulam Nabi Guide, his custody

was granted to CBI on 04.12.1995.  He having expressed

his desire to make a confessional statement, said Ghulam

Nabi Guide was produced before PW1 S.K. Bhatnagar,

Superintendent  of  Police,  CBI  on  16.12.1995.   The

witness  administered  statutory  warning  to  the  accused

and also gave him time to rethink.  The questions were

put to the accused which were replied by him and true

record  thereof  was  made  by  the  witness  in  Hindi.

According to the witness he had explained everything to

the accused and after recording of the statement, thumb

impression of  the accused was taken on the statement.

The accused was again produced before the witness on

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18.12.1995 and having expressed the desire  to make a

confessional statement, his statement was recorded by the

witness.   After  recording of  the statement,  it  was  read

over  and  the  accused  was  made  to  understand  the

statement whereafter admitting the statement to be true

the accused put his thumb impression.

E) The confessing accused Ghulam Nabi Guide was

produced in the court of  the Chief Judicial  Magistrate,

Jammu on  19.12.1995.   The  confessional  statement  in

original  in  a  sealed  cover  was  also  produced,  for  its

onward  submission  to  the  Designated  Court,  Jammu.

The text of the letter was as under:

  “Sir, Kindly find enclosed herewith original  statement

(sealed) of accused Ghulam Nabi Guide recorded under Section  15  TADA Act  in  case  RC.  1(S)/95/SIU.V for onward submission to the Hon’ble Judge of Designated Court, Jammu.  The accused has also been brought.

Applicant      Sd/-   19.12.95 (S.K. Bhatnagar) Supdt. Of Police, CBI,  SIC.II, New Delhi.”

F) On the  same  day, the  Chief  Judicial  Magistrate,

Jammu passed the following order:

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“Submitted  in  original  to  the  Presiding Officer  of  Designated  Court  under  TADA. Sealed  envelope  is  enclosed  herewith.”

Sd/- Chief Judicial Magistrate

JAMMU”

8. The trial court acquitted both the respondents of all the charges

leveled  against  them.   The  case  of  the  prosecution  as  regards

explosion of bombs which resulted in the death of eight persons and

caused  serious  injuries  to  18  persons  was  not  disputed  at  all.

However, the trial court rejected the evidence regarding confessional

statement of Ghulam Nabi Guide on the ground that the confessional

statement  was  recorded  in  Hindi  i.e.  not  in  the  language  of  the

accused.  It observed that the safeguards provided in Rule 15 of the

Rules  made  under  the  Act  were  not  adhered  to  and  therefore,  the

confessional statement of accused Ghulam Nabi Guide was required

to be discarded.  The relevant observations of  the trial court in this

behalf were as under:

“In  the  present  case,  the  confessional statement has been recorded in Hindi and not in  the  language  of  accused.  PW  Habhajan Ram who is  the Investigating Officer stated that he cannot say whether accused Ghulam Nabi knows Hindi or not. In any case, accused Ghulam Nabi  being  a  Pakistan  national,  his

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language cannot be Hindi. Even so, PW Sushil Kumar  who  is  the  recording  officer  of  the confessional  statement  of  accused  Ghulam Nabi has stated that accused had given the statement  in  Urdu  and  he  had  written  the same in Hindi. No reason has been given by the said witness as to why it was not practical to record the confession of accused in Urdu. Even so, the record does not show that Hindi is the language used by PW Sushil Kumar for official  purposes.  Rather,  the  record  would show that the said witness Sushil Kumar uses English languages for official purposes. This is apparent from the letter EXPW-SK/III  written by  him  to  the  CJM  while  forwarding  the confession  to  the  Designated  Court.  And finally, the language of the Designated Court is Urdu or English.”

9. The  trial  court  further  observed  that  as  apart  from  such

confessional  statement  there was nothing else  against  said Ghulam

Nabi  Guide,  the  accused  was  entitled  to  be  acquitted.   The  other

accused,  namely,  Wasim  Ahmed  had  not  given  any  confessional

statement  and the  case  against  him completely  depended upon the

confessional  statement  of  co-accused  Ghulam  Nabi  Guide.

Consequently  accused  Wasim  Ahmed  was  also  held  entitled  to  be

acquitted.  The  trial  court  thus  acquitted  both  the  accused  vide  its

judgment  and  order  dated  02.03.2009,  which  is  challenged  in  the

present appeal.

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10. The  record  of  the  present  appeal  indicates  that  respondent

Wasim Ahmed Malik was duly served but chose not to engage any

lawyer.  It  was  reported  that  respondent  Ghulam Nabi  Guide  was

residing in Pakistan and was served through the concerned office of

the Government of India.  However, no appearance was entered on

behalf of Ghulam Nabi Guide, though duly served.  Consequently, Mr.

Dushayant  Parashar, learned Advocate  was  requested  to  appear  for

respondent Ghulam Nabi Guide under instructions from the Supreme

Court Legal Services Committee.  Since there was no appearance for

respondent  Wasim  Ahmed  Malik  by  order  dt.  12.03.2015,  Mr.

Dushayant  Parashar  was  requested  by  this  Court  to  represent  said

Wasim  Ahmed  Malik  as  amicus  curiae.   We  must  record  our

appreciation for the assistance rendered by Mr. Dushyant Parashar.

11. Appearing  in  support  of  the  appeal  Mr.  P.K.  Dey,  learned

Advocate submitted:

(a) Confession  of  accused  under  Section  15  of  the  Act  is  a

substantive  piece  of  evidence  and  can  form  the  foundation  for

conviction of an accused for the offences punishable under the Act.

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(b) Such confession, subject to the conditions stipulated in Section

15 of the Act itself, can also be read against the co-accused and form

basis for his conviction.

(c) The  confession  recorded  by  PW1  S.K.  Bhatnagar  itself

disclosed that  the entire statement  was read over to the confessing

accused  and  only  thereafter  thumb  impression  of  the  confessing

accused  was  taken  under  the  statement.   Since  the  language  used

during such  conversation  was  Hindi  which the  confessing  accused

could understand, the recording of the statement was done in Hindi

and such recording was completely in conformity with Rule 15 of the

Rules framed under the Act.    

(d) Lastly, soon after recording of the confession,  the confessing

accused  was  produced  before  the  Chief  Judicial  Magistrate.  The

Confessional  statement  in  a  sealed  cover  was  also  produced  for

onward transmission to the Designated Court.  Thus, the guidelines

also stood completely complied with.

Mr.  Dushayant  Parashar,  learned  amicus  curiae  attempted  to

support the judgment under appeal.  The learned amicus curiae fairly

accepted that the document recording the confession itself disclosed

that the entire statement was read over and explained to the confessing

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accused.  He further fairly accepted that there was no effective cross

examination on this issue when PW1 S.K. Bhatnagar was in the box.

12. Section  15(1)  of  the  Act  expressly  makes  confession  of  an

accused  recorded by a Police Officer admissible in a trial  of such

person, co-accused,  abettor or conspirator for an offence punishable

under the  Act.  While upholding the constitutional validity of Section

15(1)  of  the  Act,  this  Court  in  Kartar  Singh  vs.  State  of  Punjab1

specifically referred to the statutory obligation in Section 15(2) of the

Act and   conditions imposed in Rule 15 of the TADA Rules in paras

258  and  259  respectively  and  then  proceeded  to  lay  down  certain

guidelines in para 263.   

The extent  of  admissibility of  such confession under Section

15(1) of the Act as against a co-accused was considered by this Court

in State vs. Nalini & Others2.  Wadhwa J. in para   424 observed as

under:

“424.  In  view  of  the  above  discussions,  we  hold  the confessions  of  the  accused  in  the  present  case  to  be voluntarily  and  validly  made  and  under  Section  15  of TADA confession of an accused is admissible against a co-accused  as  a  substantive  evidence.  Substantive

1 (1994)3 SCC 569 2 (1999)5 SCC 253

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evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what  value  is  to  be  attached  to  a  confession  will  fall within  the  domain  of  appreciation  of  evidence.  As  a matter  of  prudence,  the  court  may  look  for  some corroboration  if  confession  is  to  be  used  against  a co-accused though that will again be within the sphere of appraisal of evidence.”

Quadri J. struck a similar note of caution in para 706 as under:

“706. It is also to be borne in mind that the evidence of confession of a co-accused is not required to be given on oath, nor is it given in the presence of the accused, and its veracity cannot be tested by cross-examination. Though the  evidence  of  an  accomplice  is  free  from  these shortcomings yet an accomplice is a person who having taken part in the commission of offence, to save himself, betrayed his former associates and placed himself on a safer plank — “a position in which he can hardly fail to have  a  strong  bias  in  favour  of  the  prosecution”,  the position  of  the  accused  who  has  given  confessional statement implicating a co-accused is that he has placed himself  on  the  same  plank  and  thus  he  sinks  or  sails along with the co-accused on the basis of his confession. For  these  reasons,  insofar  as  use  of  confession  of  an accused  against  a  co-accused  is  concerned,  rule  of prudence cautions the judicial discretion that it cannot be relied  upon  unless  corroborated  generally  by  other evidence on record.”

13. It  is  settled position in law that  a confession recorded under

Section 15(1) of  the Act in accordance with statutory requirements

and in keeping with the guidelines is admissible against the maker, his

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co-accused, abettor or conspirator in a trial for an offence under the

Act, subject to the condition stipulated in the proviso to Section 15(1).

Such confession is  taken as substantive  piece  of  evidence and can

form the foundation or basis for conviction of the maker, co-accused,

abettor or conspirator.  However,  the note of  caution struck by  this

Court  is,  insofar  as  use  of  confession  of  an  accused  against  a

co-accused is concerned,  rule of  prudence would require the Court

not to rely thereon unless corroborated generally by other evidence on

record.   

14. With these principles in mind, we now turn to the requirements

of Rule 15(1) of TADA Rules and the facts in the matter.  Rule 15(1)

stipulates  that  the  confession  “shall  invariably  be  recorded  in  the

language  in  which  such  confession  is  made  and  if  that  is  not

practicable, in the language used by such police officer  for official

purposes  or  in  the  language  of  the  Designated  Court  ……”.   The

expression “invariably” itself suggests that the requirement under the

Rule is discretionary and not mandatory.  The record in the present

matter  is  very clear  that  the confessing accused Ghulam Nabi  was

produced  before  PW1  S.K.  Bhatnagar  on  16.12.1995,  was  given

statutory warning and time to reflect.  Everything was explained to

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him and only thereafter his thumb impression was taken.  On the next

occasion when the confessing accused was again produced before the

witness,  soon  after  the  recording  of  the  confession  it  was  again

explained to him, read over and only thereafter the thumb impression

was taken.  At no stage during the recording on these two occasions,

nor at the stage when the witness was in the box, there is anything on

record,  or  even  a  suggestion  that  the  confessing  accused  did  not

understand  or  was  not  made  to  understand  the  contents  of  the

confession.  The contents of the confession also disclose that many of

the assertions are personal to the confessing accused which could only

be gathered after due conversation with the Recording Officer.

15.  The language used as a means of communication between the

confessing  accused  and  the  recording  officer  being  Hindi  or

Hindustani,  such  recording  of  confession  in  Hindi  language  is

completely  in  conformity  with  the  requirement  of  the  Rule.   The

conclusion drawn by the trial court that Ghulam Nabi being Pakistani

national his language must be Urdu and therefore the recording of the

confession in a language other than Urdu, must be held to be not in

conformity, is  wrong.  Nothing has been placed on record that  the

confessing accused did not understand the line of questioning or that

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he was not made to understand the contents of the confession after the

recording was complete.  In our view the assessment made by the trial

court in this behalf is completely incorrect and against the record.  

16. We find no infirmity in the recording of confession by PW1

S.K.  Bhatnagar.  The  confession  of  accused  Ghulam  Nabi  was

recorded in keeping with the guidelines issued by this Court and was

in accordance with the statutory requirement.   Holding the confession

to be admissible, we have gone through the contents of the confession

which clearly admitted the guilt  of  the confessing accused and his

involvement right from the hatching of conspiracy to the execution

thereof.   The  confessing  accused  had  spoken  about  various  stages

since the conspiracy was hatched and how the confessing accused had

helped in transporting the explosive material from across the border

and then placed it in the pits, dug inside the stadium and on the main

road outside the stadium.   The consequential explosion of the bombs

which was timed with the celebrations on account of   Republic Day

was definitely designed   to disrupt  the celebrations  and  terrorize the

people  in  general  and   those  who  had  gathered  at  the  time  of

celebration  in  particular.    We,  therefore,  hold  that  from  the

confession, the involvement of accused Ghulam Nabi in entering into

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the conspiracy,  execution and facilitation thereof is  completely made

out.   As  held  by  this  Court,  the  confession  of  an  accused  is  a

substantive piece of evidence and his conviction can be founded on

such confession itself.  We, therefore, hold Ghulam Nabi Guide to be

guilty of the offences with which he was charged.  

17.  However, as regards the other accused, namely, Wasim  Ahmed

Malik,  apart from  the confession of Ghulam Nabi Guide that is to

say the confession of co-accused,  nothing has been placed on record

which could lend corroboration as regards his role in the conspiracy

and execution thereof.     We have minutely considered the material

but could not locate anything which could afford such corroboration.

Going by the rule of prudence as highlighted by this Court in the case

of State vs. Nalini (supra), we do not find any justification to  reverse

the finding of  acquittal as recorded  in respect of said Wasim Ahmed

Malik.  We,  therefore, affirm  the acquittal of Wasim Ahmed Malik as

recorded by the trial court  in respect of the offences with which he

was charged.  

18. Consequently, this appeal is partly allowed.  The acquittal of

Wasim Ahmed Malik is confirmed.   However,   the order of acquittal

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in respect of Ghulam Nabi is set aside and said accused Ghulam Nabi

Guide is convicted of the offences with which he was charged.  This

being an appeal against the decision of acquittal rendered by the trial

court,  we deem it  appropriate to issue notice to said Ghulam Nabi

Guide  on  the  issue  of  sentence.   The  authorities  are  directed  to

produce said Ghulam Nabi Guide before this Court so that appropriate

opportunity to address this Court on the sentence to be awarded to

him, can be afforded to him.   

19.   The  appeal  stands  allowed  in  the  aforesaid  terms.   The

authorities are directed to ensure that Ghulam Nabi Guide is taken in

custody forthwith and brought before this Court for the hearing on

sentence.  

20. We also direct the Supreme Court Legal Services Committee to

pay to  Mr. Dushyant  Parashar  Rs.20,000/-  as  remuneration  for  the

assistance rendered to this Court.

…………………………J. (A.K. Sikri)

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…………………………J. (Uday Umesh Lalit)

New Delhi, July 01, 2015

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