The Lucknow Bench of the Allahabad High Court has granted bail to four alleged conspirators of 2005 Ayodhya Ram Janmabhoomi terror attack case.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Appeal filed by Shakeel Ahmed and others.
Application for suspension of sentence and grant of bail is moved on behalf of the accused appellants Shakeel Ahmed, Mohammad Naseem, Asif Iqbal @ Faroq and Dr Irfan, who have been convicted in Sessions Trial, arising out of Case under Sections 302/120B, 307/120B, 153A/120B, 153B/120B, 295/120B, 353/120B IPC, Sections 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 r/w Section 120B IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 r/w Section 120B IPC, Police Station Ram Janmabhoomi, District Faizabad and the maximum sentence awarded to them is life imprisonment. The rest of the sentences are lesser sentences and all the sentences have been ordered to run concurrently.
On 05.07.2005, at about 9.15 in the morning, a marshal jeep stopped near the Jain Temple at Ayodhya, whereafter a blast occurred in the jeep itself. Five heavily armed terrorists then attacked the premises popularly known as ‘Ram Janmbhoomi Sthal’ and the security forces retaliated. The firing continued for almost two hours and all five terrorists were silenced. One civilian identified as Ramesh Kumar Pandey also lost his life in the blast.
The First Information Report contains elaborate details of the manner in which the marshal jeep with the aforesaid registration number stopped near the Jain Temple followed with the explosion and the terrorists strike which followed thereafter. Various senior officers arrived at the place of occurrence and after firing from the side of the terrorists ceased for over half an hour, the combing operations commenced by the security personnels. Terrorists whose dead bodies were found at the place of occurrence were armed with AK- 47 rifles and live cartridges, rocket launchers etc. Details of the firearms and the ammunition carried by (emphasis supplied by us) each of the five terrorists have been specified in the FIR. The FIR apart from referring to the firearms and other ammunition/cartridges etc. does not refer to any recovery of mobile phones from any of the slain terrorists.
Inquest was also conducted of all five deceased terrorists wherein also there is no reference to recovery of any mobile phone. The prosecution case primarily relies upon recovery of a Nokia handset.
A recovery memo dated 05.07.05, has been relied upon by the prosecution as per which apart from the above relied IMEI number of the handset there was neither any SIM card in the handset nor any battery in it.
The prosecution case further is that on surveillance and on the basis of call detail records, which were collected in the matter, SIM card was found to have been used from the recovered handset. The accused persons have been connected with the offence as conspirators to the crime essentially on the basis of the above referred Nokia mobile handset.
It is also the prosecution case that in fact seven other SIM cards were operated from the same handset. All the accused persons have thus been connected with the crime in question on the basis of call detail records traceable to the handset in question as well as certain confessional statements made by the accused’s.
The prosecution case further is that on subsequent investigation it transpired that various other SIM numbers have also been used in the recovered handset and SIM card numbers issued to some of the accused have also been run on the recovered handset.
The Trial Court on the basis of evidence led on record has delivered a detailed judgment holding that the prosecution has succeeded in establishing its case beyond reasonable doubt mainly relying upon the recovery of Nokia mobile handset.
On behalf of the accused appellants it is contended that none of the accused appellants have any criminal history and have already undergone incarceration of more than eighteen years and as the hearing of the appeals may take some more time, therefore, the accused appellants be enlarged on bail.
On behalf of the State, prayer made for grant of bail is strongly opposed by P.C Srivastava, Additional Advocate General, who contends that this case relates to a deadly terrorist strike in which innocent persons have lost their lives. It is contended that the implication of accused appellants have been established on the basis of recovery of Nokia mobile handset in which various SIM cards are used and are shown to be connected to them.
It is urged on behalf of the State that some of the accused persons are found to have been in touch with persons across the border and their implication having been proved by the prosecution in the matter, their prayer for grant of bail deserves to be rejected.
The Court observed that,
We have perused the records and we find that this is a case of terrorist attack at an significant religious place, wherein five terrorists have been shot dead. An innocent person has also lost his life. The incident, therefore, is grave and serious and has to be treated as an attack on the civilized society.
All four accused appellants have been implicated in the offence as conspirators. The aspect of conspiracy is asserted by the prosecution relying upon the recovery of a mobile handset from one of the terrorists, who had been silenced on the spot.
The prosecution case is that the mobile handset recovered from the spot was used in various SIM card numbers and through a process of call detail records, all the four accused persons have been connected to the recovered mobile handset and thereby implicated in the matter. The defence argument is that the recovery of the handset itself is not proved and is planted.
We are not required to return any definite finding on this aspect as detailed appraisal of the evidence led during trial, on such aspect, would be required at the time of hearing of the appeals. However, we do find that prima facie arguable points are raised in the appeal on the aspect relating to the factum of recovery of the mobile handset. Other legal issues have also been raised including evidentiary value of call detail records particularly as there is no certificate produced in terms of Section 65B of the Evidence Act. It is also admitted to the prosecution that none of the accused appellants have any criminal history and they are languishing in jail for the last more than 18 years.
We are also mindful of the fact that a long period of incarceration during the pendency of appeal has been viewed with concern by the Supreme Court in a series of orders/judgments. Liberty of the individuals would have to be respected while balancing the competing interests of the State to maintain order in the society, the Court said.
The Court granted to all the accused appellants, namely, Shakeel Ahmed, Mohammad Naseem, Asif Iqbal @ Faroq and Dr Irfan on bail in the above case on following strict conditions: –
(i) All the accused appellants would report to the jurisdictional police station situated at their place of residence once in a week.
(ii) None of the accused persons would leave the country without the leave of the court.
(iii) Passports issued to the accused appellants, if any, shall be surrendered by them to the court concerned.
(iv) The court concerned while releasing the accused appellants shall impose such further terms of security/surety as it deems appropriate.
(v) Fine imposed shall be deposited within six weeks after release.