TABLE OF CONTENTS

INDEX OF AUTHORITES
LIST OF ABBREVIATION
STATEMENT OF JURISDICTION
ISSUES RAISED
SUMMARY OF ARGUMENTS
 STATEMENT OF FACTS

A. Background of the Case

1. One Asif Raza Khan was detained in Tihar Jail for a case of kidnapping. There he met
one Aftab Ahmed Ansari. Both of them developed bonhomie relation during their
sentence. In 2001, however Asif fled from the prison. Thereafter he was in contact
with the Jehadis in Kashmir. Somewhere in May, 2001, Asif met his childhood friend
Jamiluddin Nasir.
2. Nasir was in search of employment. Asif offered him a job with a monthly salary of
Rs. 2000 in his newly started leather business. Nasir was slowly motivated by Asif to
join Jehad.
3. Asif started delegating assignments to Nasir like arranging fake passport for him. He
once also sent him to Jaipur to procure a jeep for him. At another instance he also got
RDX from across the border through Nasir. Nasir was now a part of the group led by
Asif.
4. At one instance Nasir was sent to Agra where he was introduced to Aftab as a friend
of Asif. Thereafter, Aftab to Calcutta along with Nasir. During that period of time he
also met other members of group Zahid, Sadahat, Hassan. Hussain, Peter, Dilip, etc.
During this period he also rented a flat in Khan Road and Hazaribagh. The place was
earmarked for conducting meetings of the group.
5. In Novemeber, 2001 Asif was killed in a police-encounter in Rajkot. The Jihadi group
wanted to take revenge action and waited for Aftab’s order. An email was exchanged
between Nazir, Zahid, Sadakat and Aftab wherein it was stated “…the untimely death
of Asif in the encounter at Rajkot required to be retaliated in equal force and that
should teach a lesson to the Government of India and the Police Personnel…”
6. With the said objective in mind Nasir suggested an attack on the American Centre
would be an ideal target as they found that the police security personnel were in large
number, that they were operating in shifts, that one such shift was taking place in the
early morning at around 6-6.30 a.m. and that the police personnel were very
lackadaisical in their duties. Thereupon plan was formulated and survey of the place
was conducted on 20th and 21st January 2002.

B. Modus Operandi on the said date

1. As per the plan on 22nd January at around 5:30 a.m. Nasir & Khurran Khiyam alias
Abdullah left their flat in a Maruti 800 bearing registration no. BRK-4907 and parked
their vehicle at Rippon Street Circular Road and started having tea at an adjacent tea
stall. Zahid & Sadakat left on a Black Suzuki Motorcycle bearing registration No.
WB-01-P-2144. Zahid was driving the motorbike and Sadakat was the pillon rider.
 When they reached at the American Centre, Sadakat open fired at the police personnel
form a close range of 15-20 ft. from his AK-47 rifle.
2. After the incident they reached Rippon Street where Nasir and Abdullah were waiting
for them. Sadakat said to them “kaam ho gaya” and placed the AK-47 rifle in the
back seat of the car and he also got into the car. Thereafter, Sadakat, Nasir and
Abdullah drove into the car to their flat at Hazaribagh and Zahid drove away on the
motorcycle.

C. Further action by investigating team

1. From certain reliable sources the police gathered information that the offenders were
at a hideout in Khan Road. Thereafter, they raided the place. When two inmates tried
to escape the police open fired. One of them was Zahid. Zahid at the time of his death
made a oral dying declaration that he was one of the person involved in shooting.
2. On 28.01.2002 the police raided the rented flat at Hazaribagh. From there they found
two jackets which matched the attire of attackers as described by the prime witnesses
that the attackers wore a choclate brown and a green coloured jacket. The same two
jackets were recovered from the house at Hazaribagh.
3. Thereafter Asif’s house was also raided wherein the police found a hand written letter
addressed to Asif’s wife stating “…Bhabiji aap dariye mat, humsab milke Asif ka
badla jald se jald lenge aur asa badla lenge ki puri Calcutta dekhti reh jaegi…” The
hadwriting experts confirmed that it matched with the writings of Ansari. Also the
police recovered in large quantity arms and ammunitions, an AK-47 rifle, Pakistan
flag etc.

D. Confession by Nasir

1. Nasir got arrested from his in-laws house. Aftab was arrested by Dubai police and
deported to India on 09.02.2002.
2. On 22.02.2002 Nasir made confession before magistrate wherein he stated that how
he came in contact with Asif. He also informed that prior to joining of Asif’s business
he knew him personally and also knew that in 1994 Asif was arrested under TADA
Act. He described the whole scenario how Asif asked him to arrange for a fake
passport and how he arranged a passport for him.
3. Thereafter he told the other activities assigned to him. Asif wanted Nasir to find a
space for one of his friends by name Niaz Hussain (absconding accused) for starting a
leather import export business. The said Niaz Hussain was also introduced to Nasir.
Accordingly he found a space in Tiljala Lane. A garage was set up in the said flat
where Niaz brought a blue Maruti 800 bearing registration No.BRK 4907. Thereafter,
Asif suggested the idea of indulging in kidnapping of big businessmen in various
cities in order to make more money and that Aftab would lead them all meaning
 thereby that Aftab would tell them where, how and what to do. In May 2001, Nasir
stated to have gone to Agra as per the instructions of Asif, where he was received by
one Arsad Khan @ Aslam (herein after referred to as ‘Arsad’) who was also a
member of the gang of Asif.
4. He also stated how Asif taught him to operate email accounts and all further
communications between them were held via emails. Subsequently, in August 2001
based on an e-mail message of Asif, he went to Banaras where he introduced him to
his friend Aftab Ansari and said that he can be called as ‘Bhaisaheb’. In the first week
of September, 2001 as directed by Asif, Nasir fixed a rented flat at Khan Road,
Khirgaon, Hazaribagh. Nasir stated to have informed the landlord and his children
that the premise was booked for running a business in Chappals, while in reality it
was a hide out of Asif’s gang members. Zahid was also one of the gang members who
stayed in that place.
5. He also said that one day he received an e-mail from Bhaisahab (Aftab) saying Asif
had been nabbed by the police which was received by him in the first week of
November. In the last week of November 2001, Bhaisahab again e-mailed Nasir and
asked him to go to Jaipur. As per the instructions of Bhaisahab he met one Dilip Bhai
at Jaipur and by exchanging two separate Rs.10 notes, they received Rs.2 lakh from
him. Based on further instructions of Bhaisahab he proceeded to Barmer to fetch 15
kg of Atta, which means ‘RDX’.
6. After Nasir returned to Calcutta, Aftab informed him through e-mail that Asif was
shot dead in an encounter by the Gujarat Police and his dead body was being flown to
Calcutta. According to Nasir, the said information was a shocking news to him. He
also stated that how after the death they planned to take revenge.
7. He confessed the group was waiting for the message from Bhaisahab. By way of
email Ansari gave permission to launch an attack at the American Centre. Thereafter
all the prepartions to execute the plan was done and the plan was carried out on the
said date in the pre decided manner.
8. At the end, Nasir stated that earlier he was scared of Aftab and that now since he has
also been nabbed, he did not want to be a traitor against his country and therefore,
came forward with his statement.

E. Present position

1. Out of the seventeen accused person, nine were put to trial. Out of the remaining eight
persons, six absconded while two i.e Zahid and Salim were killed in a police
encounter. The trial court ordered death penalty to all the nine persons put to trial,
however the Hon’ble High Court of Calcutta, acquitted all accused except Nasir and
Aftab and hence the present criminal appeal is presented before this Hon’ble Court.
 ISSUES RAISED

1. Whether the acts of the Appellants constituted “waging war” or “attempt to wage
war” against the State ?

2. Whether the confession of Appellant Nasir was recorded in accordance with Section
164 Cr.P.C ?

3. Whether the confession of Appellant Nasir can be relied upon to convict the appellant
and the co-accused Aftab ?

4. Whether sentence of death is the appropriate punishment in the present case ?

 ARGUMENTS ADVANCED

[1.] THE ACTS OF NASIR AND AFTAB CONSTITUTED AS

WAGING WAR AGAINST THE STATE.
It is humbly contended that the High Court’s decision are valid and justifiable. Nasir and
Aftab have committed the offence of waging of war against the state. The charges against
them shall be proved by the circumstantial evidence. As per Section 121 1 “ whoever, wages
war against the [Government of India], or attempts to wage such war, or abets waging of
such war, shall be punished with death, or [imprisonment for life] [ and shall also be liable
to fine].”

‘War’ under Sec. 121 is not to be understood in International Law sense of inter-country war.
What is necessary is that the object and the purpose to strike at the sovereign authority of
government to achieve a public and general purpose.2 Lord Mansfield CJ, in Lord George
Gordon’s case3 held that any amount of violence, however insignificant directed against the
King will be high treason and as soon as violence has any political objects it is impossible to
say that it is not directed against the King. In the landmark case of Rex v. Andrew [cited in
State (NCT of Delhi) v. Navjot Sandhu], it was held that whenever the rising has for its
object a general purpose common for the whole community, then it assumes character of
treason. Neither the number engaged nor the forces employed nor the species of weapon with
which they are armed is really material to prove the offence of waging war. 4 The most
important thing in waging war is the intention or purpose behind the war. If the object or
purpose is to strike at the sovereign authority of the ruler or the governor to achieve the
public and general purpose it is an important indication of waging war.5 Circumstantial
evidence is sufficient for conviction under Sec. 121 of the WPC.6
In the case of Mohd. Ajmal Mohd. Amir Kasab v. State of Maharshtra 7 the Hon’ble SC
has discussed what constitutes as waging war:

1
Indian Penal Code, No. 45 of 1860, § 121, (1860)
2
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600
3
George K. GORDON v. STATE of Idaho, 108 Idaho 178
4
R v. Hardies, [1985] 1 WLR 64 : Maganlal Radha Krishnan v. Emperor, AIR 1946 Nag 173
5
Mir Hassan Khan v. State AIR 1951 Pat 60
6
Mohd. Arif v. State (NCT of Delhi), (2011) 3 SCC 621
7
a) The most important is the intention and purpose behind the defiance or raging against the
government.
b) Though the modus operandi of preparing for the offensive act against the government may
be quite akin to the preparation in a regular war, it is often said that the number of force, the
manner in which they are arrayed, the arm and or equipment are immaterial.
c) Even a limited number of persons who carry powerful explosives and missiles without
regard to their own safety can cause more devastating damage than a large group of persons
armed with ordinary weapons or firearms.
d) There need not be the pomp or pageantry usually associated with war such as the offenders
forming themselves in battle line and arraying in a war-like manner.
e) The Court must be cautious in adopting an approach which has the effect of bringing
within the fold of Section 121 all acts of lawless near and violent acts resulting in destruction
of public property, etc.
f) The moment it is found that the object sought to be attained is of a great public nature or
has a political hue the offensive violent act targeted against the armed force and public
officials should not be branded as acts of ‘waging war’.
g) The expression ‘waging war‘ should not be stretched too far to hold that all acts of
disrupting public order and peace irrespective of their magnitude and repercussions could be
reckoned as acts of ‘waging war’ against the government.
h) A balanced and realistic approach is called in construing the expression ‘waging war’
irrespective of how it was viewed in the long long past.
i) An organized movement attended with violence and attacks against the public officials and
armed forces while agitating for the repeal of an unpopular law or for preventing burdensome
taxes were viewed as acts of treason in the form of ‘waging war’.
j) Neither the number engaged nor the force employed nor the species of weapon with which
they may be armed is really material to prove the offence of waging war.
k) The single most important factor should be to think that in a case that is being considered
of waging or attempting to wage war against the Government of India, what is the target of
attack chosen by the conspirators and the immediate objective sought to be achieved thereby.
l) The planned operations if executed what is the extent of disaster spelt out to the whole
nation. Whether a war like situation lingering for days or weeks would have prevailed and
such offensive acts of unimaginable description and devastation would have posed a
challenge to the government and the democratic institutions for the protection of which the
government of the day stands.
m) Was it mere desperate act of a small group of persons who were sure to meet with death is
to ignore the obvious realities and to stultify the wider connotation of the expression of war
chosen by the drafters of IPC.
n) The undoubted objective and the determination of the offenders was it to impinge on the
sovereign authority of the nation and its government.

In the present set of facts in hand Asif had close contact with Hizbul leaders. Aftab had also
joined the Jehadi movement. It is also relevant to note that the Indian Government as a
member of the United Nations is duty bound to provide necessary security to the foreign
consulate officers located in this country by virtue of international treaties. An attack on such
office is an attack on the sovereignty of India. The attack was done with the sole purpose of
showing the public the jehadis movement. Object of the conspirators was to create a panic in
the mind of the public at large and a horrendous threat to be felt by the State about the
accused/assailants and all those who are behind such conspiracy. The consequence of such an
attack also conveys an impression on the State to be on the alert always to face such and even
more intense attacks in future which would pose a constant challenge to the State and the
democratic Constitution. In the ultimate analysis, the act of the accused/assailants was not a
mere desperate act of a small group, but was an act of higher magnitude with a clear object
and determination to impinge on the SOVEREIGN AUTHORITY of the Nation and its
Government. Therefore, the decision of the Appellants along with the other gang members in
having chosen the police security force posted outside the American Centre to launch their
attack and having succeeded in their attempt, is yet another factor in this regard.

The evidence required to establish a case under Sec. 121 must be directed to the following
point: the object of the war was to harm public.

[2.] THE CONFESSION OF NASIR WAS RECORDED IN

ACCORDANCE WITH SECTION 164 Cr.PC.
The word confession as defined by Lord Atkin meant “A confession must either admit in
terms the offence, or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in
itself a confession, for example, an admission that the accused is the owner of and was in
recent possession of the knife or revolver which caused death with no explanation of any
other man’s possession.”8 Sec. 164 of Cr. PC entails the requirements a Magistrate has to
follow while recording of such evidence. The requirements are as follows:

i. It should be recorded and signed in the manner provided in section 281 and then
forward to the Magistrate concerned.
ii. He should give a statutory warning that the accused is not bound to make a
confession.
iii. He should be first satisfied that it is being made voluntarily,
iv. He should add memorandum at the foot of the confession.

In the case of State (NCT of Delhi) v. Navjot Sandhu9, the apex court observed that
confessions are considered highly reliable because no rational person would make an
admission against himself unless prompted by his conscience, to tell the truth.

Further in the case of Rabindra Kumar Pal Alias Dara Singh V. Republic Of India,10 Supreme
Court of India laid down the following principles to be adhered while recording a
confessional statement under Sec. 164:

1. The provisions of Section 164 Cr.P.C. must be complied with not only in form but in
essence.
2. Before proceeding to record the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he was produced and the treatment
he had been receiving in such custody in order to ensure that there is no scope for doubt
of any sort of extraneous influence proceeding from a source interested in the
prosecution.
3. A Magistrate should ask the accused as to why he wants to make a statement which
surely shall go against his interest in the trial.
4. The maker should be granted sufficient time for reflection.
5. He should be assured of protection from any sort of apprehended torture or pressure
from the police in case he declines to make a confessional statement.
6. A judicial confession not given voluntarily is unreliable, more so, when such a
confession is retracted, the conviction cannot be based on such retracted judicial
confession.
7. During the time of reflection, the accused should be completely out of police
influence. The judicial officer, who is entrusted with the duty of recording confession,

8
AKALA NARAYAN SWAMI v. EMPEROR [AIR 1939 P.C. 47]
9
10
 must apply his judicial mind to ascertain and satisfy his conscience that the statement of
the accused is not on account of any extraneous influence on him.
8. At the time of recording the statement of the accused, no police or police officer shall
be present in the open court.
9. Usually, the Court requires some corroboration from the confessional statement
before convicting the accused person on such a statement.

Section 80 of the Evidence Act, states that–Whenever any document is produced before any
court, purporting to be a record or memorandum of the evidence, or any part of the evidence,
given by a witness in a judicial proceeding or before any officer authorized by law to take
such evidence, or to be a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the court shall presume-

“that the document is genuine, that any statements as to the circumstances under which it
was taken, purporting to be made by the person signing it, are true, and that such evidence,
statement or confession was duly taken”

A confession is substantive evidence against its maker, so that it has been duly recorded and
suffers from no legal infirmity, it would suffice to convict the accused who made the
confession, though as a matter of prudence, the Court expects some corroboration before
acting upon it. Even then slight corroboration would suffice. 11 Evidence of witness cannot be
discarded merely because there statements were recorded under section 164 of the Code. 12 All
that is required as a matter of caution is a careful analysis of the evidence. 13 Unless witnesses
resile from their statements recorded under section 164, those statements cannot be deemed
doubtful.14

In the present case, the Magistrate, who recorded the confession of Appellant Nasir, applied
all precautions required under law before the confession of Appellant Nasir was recorded.
Nasir’s answers to questions 1 to 18 recorded in the confession itself, as well as, the last part
of the confessional statement amply disclose that Appellant Nasir was conscious of the
implications of making a confession and in spite of that he proceeded to make the confession
before the Magistrate. At the time of recording of confession no police personnel was present.
As far as identification of the Appellants, as well as, the photographs of deceased Zahid and
11
Babubhai Udesinh Parmar V. State Of Gujrat, (2007) 1 MLJ (Crl.) 747 (SC)]
12
Balak Ram v/s. State of U.P. A.I.R. 1974 SC 2165, and Ram Charan v/s. State of U.P. A.I.R. 1968 SC 1270
13
Ram v/s. State – A.I.R. 1968 SC 1270
14
Kanwar Pal v/s. State of Hariyana 1994 Cr.L.J. 1392, Ramesh –vs- State A.P. 2005 Cr.L.J. 3354 (SC)
Salim and the other material objects, such as, Maruti 800 car, Suzuki Motorbike, the
Chocolate and Green colour jackets worn by the assailants, there was no lacunae in the
confessional statement made by Nasir. The narration so made in the confession by Nasir was
natural and cogent and, therefore, also establish that the confession of Appellant Nasir was
not only recorded in accordance with Section 164 Cr. PC. but deserves to be given due
consideration while appreciating the evidence.

Therefore, it is humbly pleaded before the Hon’ble Court to take into consideration the
confessional statement as a material piece of evidence.

[3.] Confession of Nasir can be relied upon to convict the co-

accused Aftab.
As per Sec. 30 of the Indian Evidence Act ~
“ When more persons than one are being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some other of such persons is proved, the
Court may take into consideration such confession as against such other person as well as
against the person who makes such confession.”

Meaning thereby when more than one person is jointly tried for the same offence, then in
such cases the confession of one of the accused if found to be admissible as evidence, must
be taken as a confession against all other accused persons who are being jointly tried.

Where the confession of one accused is accepted as evidence by the court, the other accused
persons in the case don’t have opportunity to cross-examine such accused.

In the case of Kashmira Singh v. State of MP15, the accused Kashmira, Gurudayal who was
the brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw puller
in this case was being jointly accused of conspiracy and killing a child. The Supreme Court in
this case issued some conditions which needed to be fulfilled before taking into consideration
the confession of one of the accused against all others.

 Joint trial: The person who is making a confession and the other accused persons
are being tried jointly.
 Same offence: All the accused are being tried for the same offence.
 Confessions: The confession must affect the confessioner as well as the other
accused persons
15
While deciding the reliability which can be placed on by the court in the confessions by the
co-accused, the Supreme Court has held in the case of Hari Charan Kurmi v. State of
Bihar16 that the confession of a co-accused cannot be treated as substantive evidence, and can
be pressed upon only when the Court is inclined to accept other evidence, and feels the
necessity of seeking an assurance in support of its conclusions deductible from other
evidence.

Therefore, going by Section 30 of the Evidence Act, when more than one person are being
tried jointly for the same offence and a confession made by one of such persons is found to
affect the maker as well as the co-accused and its stand sufficiently proved, the Court can
take into consideration such confession as against other persons and also against the person
who made such confession.17

In the present set of facts in hand Aftan and Nasir are charged for same offence i.e. Sections
121, 121A, 122 as well as Sections 302, 307, etc. of IPC. Having noted the above legal
principles relating to the application of confession made by an accused as against the co-
accused, we wish to first consider and find out whether there is enough evidence independent
of the confession of the Appellant Nasir in respect of the charge levelled against Appellant
Aftab. There exists independent witnesses to support the case against Aftab. The sale
agreement which Aftab had made for the flat at Hazaribagh, the emails-exchanged between
the group, his letter addressed to Aftab’s wife, his frequent visit to Calcutta, the messages
wherein Aftab gave the final permission for the attack at the American Centre and the
independent confession of Nasir shows the involvement of Aftab in the criminal conspiracy
and thus confession of Nasir can be relied upon for upholding the sentence of Aftab.

[4.] THE SENTENCE OF THE COURTS BELOW SHOULD BE

UPHELD.

In the present case the accused are charged under Sec. 121, 121A, 122 read with 120B IPC.
The charges have been conclusively proved in the above mentioned issues. For such charges
the IPC punishes the offender either with a death sentence or life imprisonment. The trial
court punished both Aftab and Nasir with death sentence and subsequently it was upheld by
the Hon’ble High Court.

16
17
The Govt. of NCT of Delhi v/s Jaspal Singh, (2003) 5 SCC 589.
In the case of State of Uttar Pradesh v. Sanjay Kumar 18 the Hon’ble SC has explained the
sentencing policy:

“21. Sentencing policy is a way to guide judicial discretion in accomplishing

particular sentencing. Generally, two criteria, that is, the seriousness of the crime and
the criminal history the accused, are used to prescribe punishment. By introducing
more uniformity and consistency into the sentencing process, the objective of the
policy, is to make it easier to predict sentencing outcomes. Sentencing policies are
needed to address concerns in relation to unfettered judicial discretion and lack of
uniform and equal treatment of similarly situated convicts. The principle of
proportionality, as followed in various Judgments of this Court, prescribes that, the
punishments should reflect the gravity of the offence and also the criminal background
of the convict. Thus, the graver the offence and the longer the criminal record, the
more severe is the punishment to be awarded. By laying emphasis on individualised
justice, and shaping the result of the crime to the circumstances of the offender and
the needs of the victim and community, restorative justice eschews uniformity of
sentencing. Undue sympathy to impose inadequate sentence would do more harm to
the public system to undermine the public confidence in the efficacy of law and society
could not long endure under serious threats.”

In another recent decision of this Court in Alister Anthony Pareira vs. State of
Maharashtra19, the principles have been stated is:

“…There is no straitjacket formula for sentencing an accused on proof of crime.

The Courts have evolved certain principles: the twin objective of the sentencing
policy is deterrence and correction. What sentence would meet the ends of justice
depends on the facts and circumstances of each case and the Court must keep in
mind the gravity of the crime, motive for the crime, nature of the offence and all
other attendant circumstances. The principle of proportionality in sentencing a
crime-doer is well entrenched in criminal jurisprudence. As a matter of law,
proportion between crime and punishment bears most relevant influence in
determination of sentencing the crime doer. The Court has to take into
consideration all aspects including social interest and consciousness of the
society for award of appropriate sentence.”

In the case of Mohd. Arif v. State (NCT of Delhi) 20 where the accused were the found
guilty of waging war the Court held that since these cases are rarest of the rare case death
sentence is appropriate punishment to the offenders. Similar view was taken by the court
in Mohd. Ajmal Mohd Kasab v. State of Maharshtra 21 the court upheld death sentence for
offence under Section 121.

18
(2012) 8 SCC 537.
19
AIR 2012 SC 3802
20
(2011) 13 SCC 621.
21
A decision of the Hon’ble Supreme Court on the question of sentence is reported in
Ramnaresh and Others vs. State of Chhattisgarh22, is of much relevance. The court held:

“ While determining the questions relatable to sentencing policy, the Court has to follow
certain principles and those principles are the loadstar besides the above considerations in
imposition or otherwise of the death sentence. Principles

(1) The Court has to apply the test to determine, if it was the “rarest of rare” case for
imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other punishment i.e. life imprisonment
would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously
exercised having regard to the nature and circumstances of the crime and all relevant
considerations.

(5) The method (planned or otherwise) and the manner (extent of brutality and
inhumanity, etc.) in which the crime was committed and the circumstances leading to
commission of such heinous crime.

A balance of aggrevating and mitigating circumstance has to be taken into consideration

while awarding death penalty.23 Before opting for the death penalty the circumstances of
the ‘offender’ also requires to be taken into consideration along with the circumstances of
the ‘crime’.24

In the present case all the offences committed by the Appellants are of a very high
magnitude and it has created an indelible scar especially when the offence of such nature
has been committed with the support of foreign nationals of the neighbouring country.
The magnitude of the offences, the manner in which it was carried out, the disastrous
effect it caused which resulted in loss of life of five police personnel apart from seriously
injuring around 13 number of police personnel and other civilians, the animus with which
the offence came to be committed were all factors which persuaded the Courts below to
hold that the extreme punishment of DEATH should be awarded for the Appellants. The
22
(2012) 4 SCC 257.
23
Macchi Singh v. State of Punjab
24
State of Maharashtra vs. Goraksha Ambaji Adsul – (2011) 7 SCC 437
conduct of appellants fall under the category of rarest of rare cases. Whatever they did
was done with full knowledge and intention. The purpose was to take revenge from the
State and in doing so killed 13 policemen and injured many civilians. The accused also
had affiliation from Jehadi group and support from the neighbouring country can be seen
in promoting acts of terror in India. Aftab and Nasir did such acts which defied the
sovereignty of India and hence maximum punishment should be awarded by the court.