Supreme Court Affirms Death Penalty For LeT Militant In 2000 Red Fort Attack Case, Dismisses Review Petition

The Supreme Court on Thursday affirmed the death penalty awarded to Lakshar-e-Toiba militant Mohammed Arif for the 2000 Red Fort Attack case which resulted in the death of three persons including two army officers. The Court dismissed the review petition filed by him challenging his conviction and sentence.

When there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances, the bench comprising Chief Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi observed. The court added that this factor completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.

Background

On 22.12.2000 some intruders started indiscriminate firing and gunned down three persons including two army Jawans belonging to 7th Rajputana Rifles. Mohd. Arif, admittedly a Pakistani national, was arrested on December 25, 2000 in this case. He was convicted by the trial court on October 24, 2005, and awarded death sentence on October 31, 2005. His death sentence was confirmed by the Delhi High Court by an order dated September 13, 2007.

The apex court dismissed his appeal challenging the conviction on August 10, 2011, and his review petition was dismissed on August 28, 2011. Upholding the High Court's confirmation of Death Sentence Supreme Court by its earlier order had observed– "It was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army. We, therefore, have no doubts that death sentence was the only sentence in the peculiar circumstance of this case."

However, in 2016, the Supreme Court decided to re-hear his review petition based after the verdict which held that review petitions filed in death sentence cases must be heard in open court. The apex court on April 28, 2014 had stayed Arif's execution in the case.

Grounds in Review Petition

The following grounds were raised in the review petition:

(a) The concerned Courts committed error in allowing call records to be admitted in evidence, in the absence of an appropriate certificate under Section 65B of the Indian Evidence Act, 1872.

(b) The disclosure statements of the review petitioner must be taken to be inadmissible on account of illtreatment meted out to him during the intervening night between his actual arrest and his formal arrest.

(c) The recovery of ammunition or the encounter of one Abu Shamal, who was stated to be the accomplice of the petitioner, at Batla House, New Delhi, could not be associated with the disclosure statement of the review petitioner.

(d) 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.

 Anvar P.V. as clarified in Arjun Panditrao is the law declared on Section 65B of the Evidence Act

The bench observed that the decision in Anvar P.V. as clarified in Arjun Panditrao is the law declared on Section 65B of the Evidence Act. In Anvar, it was held that in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. Approving this view, the court in Arjun Panditrao clarified that certificate under Section 65-B(4) is unnecessary if the original document itself is produced.  The court therefore observed:

Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act...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

Direct attack on the unity, integrity and sovereignty of India

One of the grounds taken in the review petition was that the possibility of retribution and rehabilitation of the convict, or that he would continue to be a threat to the society, was not considered by the Courts while awarding/confirming the death sentence. The Centre submitted that the cases involving acts of terror which challenge the unity, integrity and sovereignty of India can only be adequately compensated by awarding the death sentence.

"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. 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 court observed.

Case details

Mohd. Arif @ Ashfaq vs State (NCT Of Delhi) | 2022 LiveLaw (SC) 902 | R.P (Crl) 286-287 OF 2012 | 3 November 2022 | CJI UU Lalit, Justices S Ravindra Bhat and Bela M Trivedi

Headnotes

2000 Red Fort Attack case - Death penalty awarded to Lakshar-e-Toiba militant Mohammed Arif affirmed by dismissing Review Petition - Even after eschewing circumstances 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 his involvement in the crime in question - The suggestion that there is a possibility of retribution and rehabilitation, is not made out from and supported by any material on record - 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.

Death Sentence - When there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances - The cumulative effect of the aggravating factors and the mitigating circumstances must be taken into account before the death sentence is awarded. (Para 29-30)

Indian Evidence Act, 1872 ; Section 65B - The decision in Anvar P.V. vs. P.K. Basheer & Ors. (2014) 10 SCC 473 as clarified in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1 is the law declared on Section 65B of the Evidence Act - (Para 22-24)

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