Evidence Of Hostile Witness Cannot Be Rejected In Toto – SC Upholds Conviction Of Members Of LeT In 2005 IISC Terror Attack

A three-judge Bench of Justice UU Lalit, Justice Hemant Gupta, and Justice S. Ravindra Bhat while holding the conviction observed that even if some of the witnesses had turned hostile, their testimonies cannot be rejected.

The Court observed –

"It is thus clear that though these witnesses did not support the Prosecution case fully, some of the features of the Prosecution case were substantiated through the testimony of these witnesses. The law on the point is clear that even if a witness is declared hostile, the evidence of such witness cannot be rejected in toto but the correct approach is to accept it to the extent his version is found to be dependable on a careful scrutiny thereof."

Senior Counsel Siddhartha Dave appeared for A6, Senior Counsel Nitya Ramakrishnan appeared for A1, Senior Counsel Ratnakar Dash appeared for A4, Counsel Farukh Rashid appeared for A5 and AAG Nikhil Goel appeared for the State of Karnataka before the High Court.

A batch of appeals was preferred before the Supreme Court by the original Accused Nos. 5, 6, 1, and 4 assailing the judgment of the Karnataka High Court at Bengaluru which had sentenced these accused to life imprisonment.

The Trial Court had earlier acquitted Accused No. 7 out of the 8 arrayed accused but found A1 to A6 guilty and passed the order of sentence.

During the investigation of the 2005 crime relating to the incident of a shootout at IISC, Bangalore, the Investigating Officer came to know about a larger conspiracy concerning Lasker-e-Toiba (LeT), a banned organization in India which led to the registration of FIR.

All the accused were charged under Sections 120(b), 121, 121(A), 122, 124(A), 153(a), and (b) IPC and Sections 5 and 6 Explosive Substances Act, 1908 and Sections 25, 26 and 28 of the Arms Act, 1959 and Sections 10, 11, 13, 16, 18, 19, 20 and 23 of Unlawful Activities Prevention Act, 1967.

During the trial, the Prosecution examined 73 witnesses and relied upon 278 exhibits and 38 material objects in support of its case.

The Prosecution examined PWs 1 to 8 and 13, who according to the Prosecution, was sought to be drawn and indoctrinated into the design and scheme of the accused. All these witnesses did not support the Prosecution and were declared hostile. However, according to the Prosecution, their testimonies could still be relied upon to establish the fact that all accused were working with the witnesses.

The High Court had concluded in its judgment that the ingredients of Section 121 IPC were absent in this case but the provisions of Section 121-A IPC were attracted.

The Apex Court noted, "It is true that Prosecution witness Nos. 1 to 8 and 13 turned hostile and did not support the case of Prosecution fully. However, it emerges from their testimony that some of them were trustees of the Trust, minutes book of which was produced on record as Exh.P-92. The witnesses accepted the fact that the meetings of the Trust had taken place and that some of the Accused did attend the meetings. PW4-Firoz gave details about the presence and participation in the meetings by various Accused including A-1 and deposed to the fact that said witness had dropped A-1 at the railway station on his bike."

The Bench in this context held that even if a witness has turned hostile, the evidence of such witness cannot be rejected in toto.

Further, the Court held that it stood established that the Accused had assembled together with the intent as disclosed from the minutes of the meetings of the Trust.

Also, the voluntary statements of the accused and consequential recoveries effected through Panchas were also duly proved by the Prosecution, the Bench noted.

The Bench placed reliance on Lal Singh v. State of Gujarat and Another in the context of matters involving terrorist activities where arms and ammunitions were recovered at the instance of or on disclosure by the accused, must be noted.

Furthermore, reliance on placed on Ajay Aggarwal v. Union of India and Others, where the role played by various accused in successive stages of conspiracy and to what extent liability for the acts committed by other members of the conspiracy could be fastened on the co-conspirators was considered by the Apex Court.

While referring to specific proven facts of the case, the Bench held, "These facts not only show that the basic elements of the conspiracy stood well established but also proved the involvement of A-1. Going by the law laid down by this Court, A-1 cannot escape the liability only on the ground that no arms and ammunition or any inflammatory material or literature were actually recovered from him."

"The conspiracy in the instant case, the intent of which was clear from the minutes of the meetings and the consequential acquisition of arms and explosives to effectuate the purpose and intent of said conspiracy, would thus come well within the latter part of the conspiracy dealt with in

Section 121A of the IPC," the Court observed.

The Bench held that even though no untoward incident had actually happened as a result of the conspiracy the matter would still come within the four corners of Section 121A IPC, thus, the conviction recorded against the accused under Section 121A of the IPC does not, therefore, call for any interference.

"The conspiracy as disclosed in the instant matter, if it had been carried out, would have resulted in great damage and prejudice to the life and well-being of the members of the general public as well as loss to the public property. Such conspiracies to cause danger to public property or to the safety of the members of the general public ought to be dealt with strictly. Considering the acquisition of substantial quantity of arms and explosives as well as the intent disclosed by diary Exh. P-92, and other materials on record, the High Court was right in enhancing the sentence after accepting the appeal preferred by the State in that behalf," the Court observed.

Accordingly, the Court dismissed the appeals.