A three-judge bench led by Chief Justice of India (CJI) Uday Umesh Lalit noted that the aggravating circumstances in the case weighed more than the mitigating circumstances, thereby, warranting death sentence.

The Supreme Court on Thursday upheld the death sentence awarded to Lashkar-e-Taiba (LeT) terrorist and Pakistani national, Mohd Arif who was convicted for attacking the Red Fort and killing three jawans of the unit 7 of Rajputana Rifles of the Indian Army in 2000 [Mohd Arif @ Ashfaq vs State NCT of Delhi].

A three-judge bench led by Chief Justice of India (CJI) Uday Umesh Lalit noted that the aggravating circumstances weighed more than the mitigating circumstances – nothing of which was placed on record.

“The suggestion that there is a possibility of retribution and rehabilitation, is not supported by any material on record. In fact, the aggravating circumstances are 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 bench also comprising of Justices S Ravindra Bhat and Bela M Trivedi held.

According to the prosecution, on the night of December 22, 2000 some intruders entered the area where the Unit of 7 Rajputana Rifles of the Indian Army was stationed inside the Red Fort, New Delhi. In the firing that was opened by the intruders, three Army jawans lost their lives.

The intruders fled the sport by scaling the rear-side boundary wall of the Red Fort.

Arif was later arrested and tried for offences under the Indian Penal Code, Arms Act, Foreigners Act and Explosive Substances Act.

He convicted and sentenced to death by a sessions court in Delhi on October 31, 2005.

The same was confirmed by the Delhi High Court on September 13, 2007 and by the Supreme Court on August 10, 2011.

The appellant then filed a petition challenging the confirmation order of the Supreme Court on the ground that it was decided by a division bench and his appeal should have had been heard by a three judge bench.

The initial review and curative petitions were dismissed by another division bench. However, on September 2, 2014 a Constitution bench of the apex court held that all death sentence confirmation matters must be heard by a three-judge bench.

Based on this judgment, the appellant by way of the present petition once again sought a review of the division bench’s orders confirming his death sentence.

Before the bench of CJI Lalit, the appellant argued that the division bench that confirmed his death penalty erred in considering the call data records (CDRs) under Section 65 B of the Evidence Act.

The bench, however, held that the other circumstances on record clearly proved beyond any doubt, the involvement of the petitioner in the crime.

As far as the contention of the appellant that the mitigating circumstances were not considered properly, the bench noted that he being a Pakistani national, was convicted for waging a war against the country and even that he had committed murders of the army personnel.

With these observations, the bench dismissed his review petition.

Senior Advocate Siddharth Agarwal appeared for the Petitioner.

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