Summary
A Pakistani national was sentenced to death for the December 2000 attack on the Army unit at the Red Fort, in which three soldiers were killed. His review petitions were reheard in open court by three judges. The Supreme Court held that, because it was a death-sentence case, the review must apply Anvar P.V. and Arjun Panditrao, even though the trial and appeals were decided under Navjot Sandhu. Call records lacking a Section 65B(4) certificate were therefore excluded, and the circumstances linking the calls to his phone fell away. The remaining circumstances still proved his guilt beyond doubt: unexplained funds, his disclosure leading to an armed hideout, and ballistic matching of the rifle he produced. Challenges to the disclosure statement were factual and outside review. No mitigating material outweighed an attack on India's sovereignty, so the petitions were dismissed.
Issues
- Whether, on review of a death sentence, call detail records admitted without a certificate under Section 65B(4) of the Evidence Act must be excluded in light of Anvar P.V. and Arjun Panditrao, though the trial and appeals were decided under Navjot Sandhu.
- Whether, after excluding such records, the remaining circumstances proved guilt and whether the death sentence warranted review on grounds of possible reformation.
Provisions considered
- Section 65B(4), Indian Evidence Act, 1872A certificate is a prerequisite for admitting electronic records such as call records; in this death-sentence review the uncertified records were eschewed. (¶¶ 15, 22, 23, 24)
- Article 137, Constitution of IndiaReview in criminal matters lies only for an error apparent on the face of the record, so factual challenges to the disclosure statement could not be reopened. (¶¶ 13, 14, 27)
- Sections 121, 121-A, 120-B and 302, Indian Penal Code, 1860The conviction and death sentence for waging war and murder in the Red Fort attack were left undisturbed. (¶¶ 2, 28, 31)
Held
- Anvar P.V., as clarified in Arjun Panditrao, is the law on Section 65B; although the courts below had decided the case under Navjot Sandhu, the review of a death sentence must be considered in the light of these later decisions. (¶¶ 18, 22, 23)
- Call records without a Section 65B(4) certificate are eschewed, so the circumstances that the calls to the BBC correspondents came from the petitioner's phone become extremely weak and are not taken into account. (¶¶ 24, 25)
- The other circumstances remain unaffected, including the large unexplained deposits in his handwriting, the police reaching the armed hideout at his instance, and ballistic matching of cartridges to the rifles, and they prove his involvement beyond doubt. (¶ 26)
- Challenges to the admissibility of the disclosure statement and its link to the hideout encounter and recoveries are factual and cannot be re-examined in review. (¶ 27)
- Acts of terror challenging India's unity, integrity and sovereignty are the most aggravating circumstances; with no material supporting reformation and no mitigating factors, the death sentence stands. (¶¶ 29, 30)
Result
Review petitions dismissed; the conviction and death sentence affirmed in the judgment dated 10.8.2011 in Criminal Appeal Nos. 98-99 of 2009 maintained.