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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.___445______OF 2013
(Arising out of SLP (Crl.) No. 9707 of 2012)
State of Maharashtra …. Appellant
Versus
Kamal Ahmed Mohammed Vakil
Ansari & Ors. …. Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. On 11.7.2006 there were seven bomb blasts in seven different
first class compartments of local trains of Mumbai Suburban Railways.
These bomb blasts resulted in the death of 187 persons. Severe
injuries on account of the said bomb blasts were caused to 829
persons.
These blasts led to the registration of following seven criminal
reports:
i) CR No.77 of 2006 at Mumbai Central Police Station.
ii) CR No.78 of 2006 at Mumbai Central Police Station.
iii) CR No.86 of 2006 at Bandra Railway Police Station
iv) CR No.87 of 2006 at Bandra Railway Police Station
v) CR No.41 of 2006 at Andheri Railway Police Station.
vi) CR No.59 of 2006 at Vasai Road Railway Police Station
vii) CR No.156 of 2006 at Borivli Railway Police Station.
In all these cases investigation was transferred to the Anti Terrorists
Squad, Mumbai (hereinafter referred to as “the ATS”), wherein the
matter was registered as CR No.5 of 2006.
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2. In all 13 accused were arrested in connection with the bomb
blasts of 11.7.2006. The accused-respondents herein are the accused
in the controversy. Initially the accused-respondents were charged with
offences punishable under Sections 302, 307, 326, 427, 436, 20A,
120B, 123 and 124 of the Indian Penal Code, 1860 read with Section 34
of the Indian Penal Code.
The accused-respondents were also charged
with offences under the Indian Explosives Act, the Prevention of
Damage to Public Property Act, the offences under the Indian Railways
Act and the offences punishable under the Unlawful Activities
(Prevention) Act, 1967.
Later, the provisions of Maharashtra Control of
Organised Crime Act, 1999 (hereinafter referred to as “the MCOCA”)
were applied to the case.
Thereupon, the accused-respondents were
charged under Sections 3(1)(i), 3(2) and 3(4) of the MCOCA. On
30.11.2006 the charge-sheet in CR no.5 of 2006 came to be filed as
MCOCA Special Case no.21 of 2006 (hereinafter referred to as Special
Case No.21 of 2006) for offences punishable under Sections 302, 307,
324, 325, 326, 327, 427, 436, 120B, 121-A, 122, 123, 124A, 201, 212
Indian Penal Code, 1860, read with Sections 3(1)(i), 3(2), 3(3), 3(4),
3(5), the MCOCA, read with Sections 10, 13, 16, 17, 18, 19, 20, 40 of
Unlawful Activities (Prevention) Act, 1967, read with Sections 6, 9B of
the Explosives Act, 1884, read with Sections 3, 4, 5, 6 of the Explosive
Substances Act, 1908, read with Sections 3, 4 of the Prevention of
Damage to Public Property Act, 1984, read with Sections 151, 152,
153, 154 of the Railways Act, 1989, read with Section 12(1)(c) of the
Passports Act, 1967.
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3. The prosecution case (in Special Case No.21 of 2006) in brief is,
that bombs were planted on 11.7.2006 in seven different first class
compartments of local trains of Mumbai Suburban Railways by the
Students Islamic Movement of India (hereinafter referred to as “the
SIMI”). SIMI is a terrorist organization, the accused-respondents are
allegedly its members.
According to the prosecution, the accused respondents had conspired to plant bombs at Mumbai’s local trains to
create panic in furtherance of terrorist activities being carried out by the
SIMI in India.
4. Having examined its witnesses, and having placed on the record
of Special Case No.21 of 2006, the necessary exhibits, the prosecution
closed its evidence on 4.4.2012.
Thereafter, witnesses were examined
in defence by the accused-respondents.
On 19.7.2012, accused Nos.2,
6, 7 and 13 filed an application (at Exhibit 2891) praying for issuance of
summons to 79 witnesses named therein.
On 24.7.2012, the accused respondents filed another application (at Exhibit 2914), again for
summoning defence witness.
The application filed by the accused respondents, inter alia, included the names of the following witnesses :
(i) Witness at serial No.63 -
Chitkala Zutshi,
Additional Chief Secretary
(Home Department)
(ii) Witness at serial No.64 -
Vishwas Nangre Patil,
Deputy Commissioner of
Police
(iii) witness at serial No.65 -
Milind Bharambe,
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Deputy Commissioner of
Police
(iv) Witness at serial No.66 -
Dilip Sawant,
Deputy Commissioner of
Police.
5. To appreciate the reason for summoning the witnesses at serial
nos. 63 to 66, it is necessary to refer to some more facts. As against
the accusations contained in Special Case no.21 of 2006, referred to
above, in another MCOCA Special Case no.4 of 2009 (hereinafter
referred to as ‘Special Case No.4 of 2009’), it was alleged by the
prosecution, that the accused therein were members of the Indian
Mujahideen (hereinafter referred to as “the IM”). The IM is also
allegedly a terrorist organization, blameworthy of such activities within
the territorial jurisdiction of India.
The investigating agency had been
claiming, that all bomb blasts in Mumbai since the year 2005 had been
carried out by the IM.
During the course of investigation in Special
Case no. 4 of 2009, some of the accused therein (Special Case no. 4 of
2009) had confessed that they, as members of the IM had carried out
bomb blasts, in Mumbai Suburban trains on 11.7.2006. In fact, ‘the
accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah’, in Special Case no.4 of 2009, had made these confessional
statements under Section 16 of the MCOCA.
The confessional
statement of Sadiq Israr Shaikh was recorded by Vishwas Nangre Patil,
Deputy Commissioner of Police (witness at serial no.64). Likewise, the
statement of Arif Badruddin Sheikh was recorded by Miland Bharambe,
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Deputy Commissioner of Police (witness at serial No.65). And, the
statement of Ansar Ahmad Badshah was recorded by Dilip Sawant,
Deputy Commissioner of Police (witness at serial No.66). Chitkala
Zutshi, the then Additional Chief Secretary, Home Department (witness
at serial No.63) had granted sanction for the prosecution of the
aforesaid accused in Special Case No.4 of 2009 on 21.2.2009, by
relying interalia on the confessional statements made by Sadiq Israr
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. The
accused (respondents herein) desire to produce the witnesses at serial
nos. 63 to 66, to establish their own innocence.
6. The Trial Court by its order dated 1.8.2012, declined the prayer
made by the accused-respondents for summoning the witnesses at
serial Nos.63 to 66.
Dissatisfied with the order dated 1.8.2012, the
accused-respondents preferred Criminal Appeal No.972 of 2012 before
the High Court of Judicature at Bombay (hereinafter referred to as ‘the
High Court’).
The High Court by its order dated 26.11.2012 allowed the
appeal preferred by the accused-respondents.
The operative part of the
aforesaid order dated 26.11.2012, is being extracted hereunder :
“83. As a result of the aforesaid discussion, it is clear that the
evidence sought to be adduced by the appellants is
relevant and admissible. The appellants cannot be
prevented from bringing on record such evidence. The
impugned order is contrary to law, and needs to be
interfered with.
84. The appeal is allowed. The impugned order is set aside.
85. The appellants shall be entitled to have the witnesses in
question summoned, and examine them as witnesses for
the defence.
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86. Appeal is disposed of accordingly.”
7. Aggrieved with the order dated 26.11.2012, passed in Criminal
Appeal No.972 of 2012, the State of Maharashtra preferred the instant
Special Leave Petition (Crl.) No.9707 of 2012.
8. Leave granted.
9. It is necessary to first define the contours of the controversy,
which we are called upon to adjudicate, in the present appeal.
The
accused-respondents press for summoning the witnesses at serial nos.
63 to 66 as defence witnesses.
The object for summoning the aforesaid
witnesses is, that the witnesses at serial nos. 64 to 66 had recorded the
confessional statements of Sadiq Israr Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah during the course of investigation in Special
Case no. 4 of 2009.
Based interalia on the aforesaid confessional
statements, the witness at serial no. 63 had accorded sanction for
prosecution of the accused in Special Case no. 4 of 2009.
The object of
the accused-respondents (of producing these witnesses in defence) is
to show, that others are responsible for actions for which the accused respondents are being blamed.
It is relevant to pointedly notice, that
the aforesaid confessional statements were not made by persons who
are accused in Special Case no. 21 of 2006 (i.e. they are not coaccused with the accused-respondents). The first question for
determination therefore would be, whether the confessional statements
recorded before the witnesses at serial nos. 64 to 66, by persons who
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are not accused in Special Case no. 21 of 2006, would be admissible in
Special Case no. 21 of 2006.
The instant question will have to be
examined with reference to the provisions of the Indian Evidence Act,
1872 (hereinafter referred to as, the Evidence Act) and the MCOCA.
Alternatively, the question that would need an answer would be,
whether the said confessional statements are admissible under
Sections 6 and 11 of the Evidence Act not as confessional statements,but as “relevant facts”.
The answers of the two alternate questions will
have to be determined on totally different parameters, and under
different statutory provisions.
Both the questions are, therefore, being
examined by us independently hereinafter.
10. Before venturing into the two alternate questions referred to in the
foregoing paragraph, it is necessary to delineate a few salient features
on which there is no dispute between the rival parties.
It is not a matter
of dispute, that confessional statements have been made during the
course of investigation in Special Case no. 4 of 2009.
The aforesaid
confessional statements were made before the witnesses at serial nos.
64 to 66.
The witnesses at serial nos. 64 to 66 were then holding the
rank of Deputy Commissioners of Police (at the time when the
confessional statements were recorded).
The present appeal is a
proceeding, emerging out of Special Case no. 21 of 2006.
The accused
in Special Case no. 4 of 2009, are different from the accused in Special
Case no. 21 of 2006.
Importantly, Special Case no. 4 of 2009, is not
being jointly tried with Special Case no. 21 of 2006.
The accused in
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Special Case no. 4 of 2009 (who had made the confessional statements
under reference), are available.
In other words, those who had made
the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah) before the witnesses at serial nos. 64 to
66, can be summoned to be produced in Special Case no. 21 of 2006,
as defence witnesses, at the choice and asking of the accusedrespondents (in Special Case no. 21 of 2006), for affirming or denying
the correctness of the confessional statements made by them (before
the witnesses at serial nos. 64 to 66).
According to the learned counsel
for the appellant, those who had made the confessional statements
(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)
before the witnesses at serial nos. 64 to 66, have since retracted their
confessional statements. Insofar as the latter aspect of the matter is
concerned, the same is neither acknowledged nor denied at the behest
of the accused-respondents.
11. When a question pertaining to the admissibility of evidence before
an Indian court arises, it has to be determined with reference to the
provisions of the Evidence Act. Alternatively, the question may be
determined under a special enactment, which may either make such
evidence admissible, or render it inadmissible. The special enactment
relied upon in the present controversy is, the MCOCA. Therefore, the
questions posed for determination in the present case, will have to be
adjudicated on the basis of the provisions of the Evidence Act, and/or
the MCOCA.
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12. It is relevant in the first instance to describe the expanse/sphere
of admissible evidence. The same has been postulated in Section 5 of
the Evidence Act.
Under Section 5 aforementioned, evidence may be
given “of every fact in issue” and of such other facts which are expressly
“declared to be relevant”, and of no other facts.
For the present
controversy, the facts in issue are the seven bomb blasts, in seven
different first class compartments, of local trains of Mumbai Suburban
Railways, on 11.7.2006. Thus far, there is no serious dispute. But then,
evidence may also be given of facts which are “declared to be relevant”
under the Evidence Act.
Under the Evidence Act, Sections 6 to 16
define “relevant facts”, in respect whereof evidence can be given.
Therefore, Sections 5 to 16 are the provisions under the Evidence Act,
which alone have to be relied upon for determining admissibility of
evidence.
13. Sections 17 to 31 of the Evidence Act pertain to admissions and
confessions. Sections 17 to 31 define admissions/confessions, and
also, the admissibility and inadmissibility of admissions/confessions.
An
analysis of the aforesaid provisions reveals, that an admission or a
confession to be relevant must pertain to a “fact in issue” or a “relevant
fact”. In that sense, Section 5 (and consequently Sections 6 to 16) of
the Evidence Act are inescapably intertwined with admissible
admissions/confessions. It is, therefore, essential to record here, that
admissibility of admissions/confessions, would depend on whether they
would fall in the realm of “facts in issue” or “relevant facts”. That in turn
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is to be determined with reference to Sections 5 to 16 of the Evidence
Act. The parameters laid down for the admissibility of
admissions/confessions are, however, separately provided for under the
Evidence Act, and as such, the determination of admissibility of one
(admissions/confessions) is clearly distinguishable from the other (facts
in issue/relevant facts).
14. We shall now endeavour to delve into the first question, namely,
whether the confessional statements recorded by the three accused
(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah,
in Special Case no. 4 of 2009), before the witnesses at serial nos. 64 to
66, are admissible as confessions in the trial of Special Case no. 21 of
2006.
There seems to be a serious dispute between the rival parties,
whether the deposition in respect of these confessional statements, can
only be made by producing as witnesses, the person who had made
such admission/confession; or in the alternative, deposition thereof can
also be made through the persons before whom such confessions were
made.
15. Admissions and confessions are exceptions to the “hearsay” rule.
The Evidence Act places them in the province of relevance, presumably
on the ground, that they being declarations against the interest of the
person making them, they are in all probability true. The probative
value of an admission or a confession does not depend upon its
communication to another. Just like any other piece of evidence,
admissions/confessions can be admitted in evidence only for drawing
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an inference of truth (See Law of Evidence, by M. Monir, fifteenth
edition, Universal Law Publishing Co.). There is, therefore, no dispute
whatsoever in our mind, that truth of an admission or a confession can
not be evidenced, through the person to whom such
admission/confession was made. The position, however, may be
different if admissibility is sought under Sections 6 to 16 as a “fact in
issue” or as a “relevant fact” (which is the second question which we are
called upon to deal with). The second question in the present case, we
may clarify, would arise only if we answer the first question in the
negative. For only then, we will have to determine whether these
confessional statements are admissible in evidence, otherwise than, as
admissions/confessions.
16. Therefore to the extent, that a confessional statement can be
evidenced by the person before whom it is recorded, has been rightfully
adjudicated by the High Court, by answering the same in the affirmative.
The more important question however is, whether the same would be
admissible through the witnesses at serial nos. 63 to 66 in Special Case
no. 21 of 2006. Our aforesaid determination, commences from the
following paragraph.
17. The scheme of the provisions pertaining to
admissions/confessions under the Evidence Act (spelt out in Sections
17 to 31) makes admissions/confessions admissible (even though they
are rebuttable) because the author of the statement acknowledges a
fact to his own detriment. This is based on the simple logic (noticed
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above), that no individual would acknowledge his/her liability/culpability
unless true. We shall determine the answer to the first question, by
keeping in mind the basis on which, admissibility of
admissions/confessions is founded. And also, whether confessions in
this case (made to the witnesses at serial nos. 64 to 66) have been
expressly rendered inadmissible, by the provisions of the Evidence Act,
as is the case set up by the appellant.
18. An examination of the provisions of the Evidence Act would
reveal, that only such admissions/confessions are admissible as can be
stated to have been made without any coercion, threat or promise.
Reference in this regard may be made to Section 24 of the Evidence
Act which provides, that a confession made by an accused person is
irrelevant in a criminal proceeding, if such confession has been caused
by inducement, threat or promise. Section 24 aforesaid, is being
reproduced below:-
“24. Confession by inducement, threat or promise when
irrelevant in criminal proceeding –
A confession made by an accused person is irrelevant in a
criminal proceeding, if the making of the confession
appears to the Court to have been caused by any
inducement, threat or promise, having reference to the
charge against the accused person, proceeding from a
person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds, which would
appear to him reasonable, for supposing that by making it
he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceeding against
him.”
Sections 25 and 26 of the Evidence Act exclude, from the realm of
admissibility, confessions made before a police officer or while in police
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custody. There can be no doubt, that the logic contained in the rule
enunciated in Sections 25 and 26 is founded on the same basis/truth
out of which Section 24 of the Evidence Act emerges. That a
confession should be uninfluenced, voluntary and fair. And since it may
not be possible to presume, that admissions/confessions are
uninfluenced, voluntary and fair, i.e., without coercion, threat or promise,
if made to a police officer, or while in police custody, the same are
rendered inadmissible. Sections 25 and 26 aforesaid, are being
reproduced below:-
“25. Confession to police officer not to be provedNo confession made to police officer shall be proved as
against a person accused of any offence.
26. Confession by accused while in custody of police not
to be proved against himNo confession made by any person whilst he is in the
custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as
against such person.
Explanation — In this section “Magistrate” does not include
the head of a village discharging magisterial functions in
the Presidency of Fort St. George or elsewhere, unless
such headman is a Magistrate exercising the powers of a
Magistrate under the Code of Criminal Procedure, 1882 (10
of 1882).”
There is, therefore, a common thread in the scheme of admissibility of
admissions/confessions under the Evidence Act, namely, that the
admission/confession is admissible only as against the person who had
made such admission/confession. Naturally, it would be inappropriate
to implicate a person on the basis of a statement made by another.
Therefore, the next logical conclusion, that the person who has made
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the admission/confession (or at whose behest, or on whose behalf it is
made), should be a party to the proceeding because that is the only way
a confession can be used against him. Reference can be made to
some provisions of the Evidence Act which fully support the above
conclusions. Section 24 of the Evidence Act leads to such a conclusion.
Under Section 24, a confession made “by an accused person”, is
rendered irrelevant “against the accused person”, in the circumstances
referred to above. Likewise, Section 25 of the Evidence Act
contemplates, that a confession made to a police officer cannot be
proved “as against a person accused of any offence”. Leading to the
inference, that a confession is permissible/admissible only as against
the person who has made it, unless the same is rendered inadmissible
under some express provision. Under Section 26 of the Evidence Act, a
confession made by a person while in custody of the police, cannot “be
proved as against such person” (unless it falls within the exception
contemplated by the said Section itself). The gamut of the bar
contemplated under Sections 25 and 26 of the Evidence Act, is however
marginally limited by way of a proviso thereto, recorded in Section 27 of
the Evidence Act. Thereunder, a confession has been made
admissible, to the extent of facts “discovered” on the basis of such
confession (this aspect, is not relevant for the present case). The
scheme of the provisions pertaining to admissions/confessions depicts a
one way traffic. Such statements are admissible only as against the
author thereof.
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19. It is, therefore clear, that an admission/confession can be used
only as against the person who has made the same. The admissibility
of the confessions made by Sadiq Israr Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah need to be viewed in terms of the
deliberations recorded above. The admissibility of confessions which
have been made by the accused (Sadiq Israr Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah, in Special Case no. 4 of 2009) who
are not the accused in Special Case no. 21 of 2006, will lead to the
clear conclusion, that they are inadmissible as admissions/confessions
under the provisions of the Evidence Act. Had those persons who had
made these confessions, been accused in Special Case no. 21 of 2006,
certainly the witnesses at serial nos. 64 to 66 could have been
produced to substantiate the same (subject to the same being otherwise
permissible). Therefore, we have no doubt, that evidence of
confessional statements recorded before the witnesses at serial nos. 64
to 66 would be impermissible, within the scheme of
admissions/confessions contained in the Evidence Act.
20. The issue in hand can also be examined from another
perspective, though on the same reasoning. Ordinarily, as already
noticed hereinabove, a confessional statement is admissible only as
against an accused who has made it. There is only one exception to
the aforesaid rule, wherein it is permissible to use a confessional
statement, even against person(s) other than the one who had made it.
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The aforesaid exception has been provided for in Section 30 of the
Evidence Act, which is being extracted hereunder:-
“30. Consideration of proved confession affecting person
making it and others jointly under trial for same
offenceWhen 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.
Illustrations
(a) A and B are jointly tried for the murder of C. It is
proved that A said - "B and I murdered C". The
Court may consider the effect of this confession as
against B.
(b) A is on his trial for the murder of C. There is evidence
to show that C was murdered by A and B, and that B
said, "A and I murdered C".
This statement may not be taken into consideration
by the Court against A, as B is not being jointly tried.”
As is evident from a perusal of Section 30 extracted above, a
confessional statement can be used even against a co-accused. For
such admissibility it is imperative, that the person making the confession
besides implicating himself, also implicates others who are being jointly
tried with him. In that situation alone, such a confessional statement is
relevant even against the others implicated. Insofar as the present
controversy is concerned, the substantive provision of Section 30 of the
Evidence Act has clearly no applicability because Sadiq Israr Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah have not implicated
any of the accused-respondents herein. The importance of Section 30
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of the Evidence Act, insofar as the present controversy is concerned,
emerges from illustration (b) thereunder, which substantiates to the hilt
one of the conclusions already drawn by us above. Illustration (b)
leaves no room for any doubt, that unless the person who has made a
confessional statement is an accused in a case, the confessional
statement made by him is not relevant. None of the accused in Special
Case no. 4 of 2009 is an accused in Special Case no. 21 of 2006. As
such, in terms of illustration (b) under Section 30 of the Evidence Act,
we are of the view, that the confessional statement made by the
accused in Special Case no. 4 of 2009, cannot be proved as a
confessional statement, in Special Case no. 21 of 2006. This
conclusion has been recorded by us, on the admitted position, that the
accused in Special Case no. 4 of 2009 are different from the accused in
Special Case no. 21 of 2006. And further because, Special Case no. 4
of 2009 is not being jointly tried with Special Case no. 21 of 2006.
Therefore, even though Section 30 is not strictly relevant, insofar as the
present controversy is concerned, yet the principle of admissibility,
conclusively emerging from illustration (b) under Section 30 of the
Evidence Act, persuades us to add the same to the underlying common
thread, that finds place in the provisions of the Evidence Act, pertaining
to admissions/confessions. That, an admission/confession is
admissible only as against the person who has made it.
21. We have already recorded above, the basis for making a
confessional statement admissible. Namely, human conduct per se
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restrains an individual from accepting any kind of liability or implication.
When such liability and/or implication is acknowledged by the individual
as against himself, the provisions of the Evidence Act make such
confessional statements admissible. Additionally, since a confessional
statement is to be used principally as against the person making it, the
maker of the confession will have an opportunity to contest the same
under Section 31 of the Evidence Act, not only by producing
independent evidence therefor, but also, because he will have an
opportunity to contest the veracity of the said confessional statement, by
effectively cross-examining the witness produced to substantiate the
same. Such an opportunity, would also be available to all other coaccused who would be confronted with a confessional statement made
by an accused against them (as in Section 30 of the Evidence Act), as
they too would have an opportunity to contest the confessional
statement made by the accused, in the same manner as the author of
the confession. Illustration (b) under Section 30 of the Evidence Act
contemplates a situation wherein the author of the confessional
statement is not a co-accused. Illustration (b) renders such
confessional statements inadmissible. There is, it may be noticed, no
room for testing the veracity of the said confessional statement, either at
the hands of the person who made it, or by the person against whom it
is made. For adopting illustration (b) under Section 30 to the reasoning
recorded above, the same be read as under:-
“...This statement may not be taken into consideration by
the court against A (the accused facing trial), as B (the
person who made the confession) is not being jointly tried.”
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Illustration (b) makes such a confessional statement inadmissible for the
sole reason, that the person who made the confession, is not a coaccused in the case. Again, the underlying principle brought out
through illustration (b) under Section 30 of the Evidence Act is, that a
confessional statement is relevant only and only, if the author of
confessional statement himself is an accused in a case, where the
confessional statement is being proved. In the present controversy, the
authors of the confessional statements (Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) are not amongst the
accused in Special Case no. 21 of 2006. The confessional statements
made by them, would therefore be inadmissible (as
admissions/confessions) in the present case (Special Case no. 21 of
2006), as the situation in the present case is exactly the same as has
been sought to be explained through illustration (b) under Section 30 of
the Evidence Act.
22. It is also possible, to determine the admissibility of the statements
of the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) made to the witnesses at serial nos. 64 to 66
independently of the conclusions drawn in the foregoing paragraphs.
The instant determination is being recorded by us, again by placing
reliance on Sections 25 and 26 of the Evidence Act. As already noticed
hereinabove, Section 25 makes a confessional statement made to a
police officer inadmissible against “a person accused of any offence”.
Likewise, a confessional statement made while in the custody of police
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cannot be proved as against “the person making such confession”
under Section 26 of the Evidence Act. It is nobody’s case, that the
instant confessional statements made by the accused in Special Case
no. 4 of 2009 are being proved to substantiate the “discovery” of facts
emerging out of such confessional statements. In the aforesaid view of
the matter, the exception to Sections 25 and 26 of the Evidence Act
contemplated under Section 27 thereof, would also not come into play.
Since admittedly the confessional statements, which are sought to be
substantiated at the behest of the accused-respondents, were made by
the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) in Special Case no. 4 of 2009, to different “police
officers” (all holding the rank of Deputy Commissioners of Police), we
are satisfied, that the said confessional statements are inadmissible
under Sections 25 and 26 of the Evidence Act.
23. The issue of admissibility of the confessional statements made by
Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah
before the witnesses at serial nos. 64 to 66, needs to be examined from
yet another perspective. Learned counsel for the respondents were
successful in persuading the High Court, that a confessional statement
made by an accused in one case, could be used in another case as
well. In this behalf, the respondents had placed reliance on the decision
rendered by this Court in State of Gujarat Vs. Mohammed Atik, AIR
1998 SC 1686. In the aforesaid controversy, the following question,
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which was framed by the trial Court, had come up for consideration
before this Court:-
“The question therefore is whether the prosecution be permitted
to introduce and prove the confessional statement of an accused,
alleged to have been made during the investigation of another
offence committed on a different date, during the trial of that
accused in another crime.”
While answering the question extracted above, this Court first examined
whether the confession relied upon, had been recorded in accordance
with the provisions of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (hereinafter referred to as, the TADA). Having first
determined, that the confessional statement under reference had been
validly recorded under the TADA, this Court recorded the following
conclusion in answer to the question framed by the trial Court:-
“We have, therefore, absolutely no doubt that a confession, if
usable under Section 15 of the TADA, would not become
unusable merely because the case is different or the crime is
different. If the confession covers that different crime it would be
a relevant item of evidence in the case in which that crime is
under trial and it would then become admissible in the case.”
Based on the conclusion drawn in State of Gujarat Vs. Mohammed Atik
(supra), the High Court accepted the prayer made by the respondents,
that the confessional statements made by the accused in Special Case
no. 4 of 2009, would be admissible in Special Case no. 21 of 2006. The
instant legal position is sought to be reiterated before us by the learned
counsel representing the accused-respondents.
21Page 22
24. We have given our thoughtful consideration to the conclusions
drawn by the High Court on the basis of the decision in State of Gujarat
Vs. Mohammed Atik (supra). Before drawing any conclusion one way
or the other, it would be relevant to notice, that in accepting the
admissibility of the confessional statement in one case as permissible in
another case, reliance was placed by this Court on Section 15 of the
TADA. Section 15 of the TADA is being extracted hereunder:-
“Section 15 – Certain confessions made to Police Officers to be
taken into consideration-
(1) Notwithstanding anything in the Code or in the Indian
Evidence Act, 1872, but subject to the provisions of this
section, a confession made by a person before a police
officer not lower in rank than a Superintendent of police and
recorded by such police officer either in writing or on any
mechanical device like cassettes, tapes or sound tracks
from out of which sounds or images can be reproduced,
shall be admissible in the trial of such person or coaccused, abettor or conspirator for an offence under this
Act or rules made thereunder:
Provided that co-accused, abettor or conspirator is charged
and tried in the same case together with the accused.
(2) The police officer shall, before recording any confession
under subsection (1), explain to the person making it that
he is not bound to make a confession and that, if he does
so, it may be used as evidence against him and such police
officer shall not record any such confession unless upon
questioning the person making it, he has reason to believe
that it is being made voluntarily.”
There is no room for any doubt, that Section 15 of the TADA expressly
makes such confessional statement made by a person admissible not
only against the person who has made it, but also as against others
implicated therein, subject to the condition, that the person who has
made the confession, and the others implicated (the co-accused –
22Page 23
abettor or conspirator) are being “...tried in the same case together...”.
Therefore, it is necessary for us first to specifically highlight, that the
admissibility of the aforesaid confessional statements was determined
not with reference to the Evidence Act, but under Section 15 of the
TADA. What the High Court, as also the respondents before us have
overlooked is, that the proviso under sub-Section (1) of Section 15 of
the TADA expressly postulates, that a confessional statement made by
an accused as against himself, as also a co-accused (abettor or
conspirator) is admissible, provided that, the co-accused (abettor or
conspirator) is being tried in the same case together with the accused
who had made the confession. The proviso under sub-Section (1) of
Section 15 of the TADA is founded on the same principle, which we
have referred to hereinabove, while analyzing Section 30 of the
Evidence Act. The link for determining admissibility is not case specific.
A confessional statement may be admissible in any number of cases.
Or none at all. To determine admissibility the test is, that the author of
the confessional statement must be an accused, in the case (in which
the confessional statement is admissible). And in case it is to be used
against persons other than the author of the confessional statement,
then besides the author, such other persons must all be co-accused in
the case. It is therefore apparent, that the confessional statement made
by an accused was held to be relevant in State of Gujarat Vs.
Mohammed Atik (supra) under Section 15 of the TADA, on the fulfilment
of the condition, that the same was recorded in consonance with the
provisions of the said Act, as also, the satisfaction of the ingredients
23Page 24
contained in the proviso under sub-Section (1) of Section 15 of the
TADA, namely, the person who had made the confession, and the
others implicated were facing a joint trial. The judgment rendered by
this Court in State of Gujarat Vs. Mohammed Atik (supra) has been
incorrectly relied upon while applying the conclusions rendered in the
same to the controversy in hand, as the confessional statements made
by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah do not implicate the accused-respondents in Special Case no.
21 of 2006, nor are the accused-respondents herein being jointly tried
with the persons who had made the confessional statements. Reliance
has not been placed by the accused-respondents, on any provision
under the MCOCA, to claim admissibility of the witnesses at serial nos.
63 to 66 as defence witnesses. Nor have the learned counsel for the
accused-respondents invited our attention to any other special statute
applicable hereto, whereunder such a course of action, in the manner
claimed by the respondents, would be admissible. We are, therefore, of
the view that the High Court erred in relying on the judgment rendered
by this Court in State of Gujarat Vs. Mohammed Atik (supra) while
determining the controversy in hand.
25. We shall now endeavour to delve into the second question,
whether the confessional statements recorded by the three accused
(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah),
in Special Case no. 4 of 2009, before the witnesses at serial nos. 64 to
66, are admissible in Special Case no. 21 of 2006, by producing the
24Page 25
persons before whom the confessional statements were made (the
witnesses at serial nos. 64 to 66) as defence witnesses, under the
Evidence Act. On the instant aspect of the matter, the submission of
the accused-respondents has been, that the same satisfy the test of
being “relevant facts” under Sections 6 and 11 of the Evidence Act. We
shall now record our conclusions separately for each of the aforesaid
provisions.
26. Are the statements made by the accused (Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of
2009, to the witnesses at serial nos. 64 to 66, admissible under Section
6 of the Evidence Act as “relevant facts”? The accused-respondents
emphatically claim that they are. The contention of the learned counsel
for the appellant is, however, that the evidence of three police officers
(all holding the rank of Deputy Commissioners of Police) and the
Additional Chief Secretary (Home Department) relating to confessions
made by accused in Special Case No.4 of 2009 is hit by the “hearsay
rule”. In this behalf it is pointed out, that the blasts in question took
place on 11.7.2006 while the confessions were recorded in October,
2008. It is therefore pointed out, that the confessional statements were
recorded after two years of the occurrence of the fact in issue. Section
6 of the Evidence Act, according to learned counsel, partially lifts the
ban on the “hearsay rule”, if the evidence which is sought to be
produced, can be said to be so connected to a “fact in issue” as to form
a part of it. It is contended, that the “fact in issue”, is the bomb blasts
25Page 26
that took place in local trains of Mumbai Suburban Railways, on
11.7.2006. The confessional statements recorded after two years
cannot be said to be a part of the said “fact in issue”, so connected to it,
as to form a part of it. The evidence of police officers about the
confessions made by the accused in Special Case No.4 of 2009 is not,
according to learned counsel, evidence relating to “facts in issue”, but
pertain to “collateral facts”. This evidence of a collateral fact, it is
contended, can be brought in as evidence only if it is “a relevant fact”
under some provision of the Evidence Act. Such evidence of the police
officers, according to learned counsel for the appellant, is not relevant
under any provisions of the Evidence Act, certainly not under Section 6
thereof.
27. Such evidence, according to learned counsel, is barred by the
“rule of hearsay”. According to learned counsel, the ban on hearsay
evidence does not extend to the rule of “res gestae”. It is however
submitted, that the rule of “res gestae” is not attracted in the present
case, as there is no live link between the occurrence of bomb blasts on
11.7.2006, and the recording of confessional statements two years
thereafter. If the accused persons had made such confessional
statements immediately after the occurrence of the bomb blasts, as a
natural reaction in immediate proximity of the occurrence, so as to
constitute a part of the occurrence itself, there may have been a live link
between the blasts and the confessional statements, and such
confessional statements, may have been perceived as a part of the
26Page 27
same, and therefore, may (in such eventuality) have been admissible
under Section 6 of the Evidence Act. The statement of the accused in
Special Case no. 4 of 2009, according to learned counsel, cannot for
the reasons mentioned above, be treated as part of the same
transaction, as the transaction of bomb blasts of 11.7.2006.
28. In order to substantiate his aforesaid contention, learned counsel
for the appellant placed reliance on the decision rendered in
Venkateshan v. State, 1997 Cr.LJ 3854, wherein Madras High Court
held, that in a murder case where the accused who had assaulted the
deceased, had made a statement about the assault to the brother of the
deceased, within half an hour of the act, the evidence of the brother was
held to be “res gestae”, and therefore, admissible under Section 6 of the
Evidence Act. It was submitted, that only such a fact as is so connected
to a “fact in issue”, so as to be treated as a part of it, would constitute
“res gestae”, and would not be excludable by the “rule of hearsay”.
Relevant observations from the aforesaid judgment, which were brought
to our notice, are being extracted hereunder:
“17. The above proposition of law has been laid down by the
Apex Court and the same followed by other Courts. We
have to see whether there is an interval or time lag
between the act committed by the accused and the time of
statement given to the witnesses and was it a long one so
as to give time or opportunity for fabrication. In the instant
case the occurrence took place at 11.30 p.m., and the
statement made by the appellant to P.W. 1 at 12 mid night
i.e. half-an-hour later. In the light of the facts of this case, it
cannot be stated that there is a long interval so as to given
opportunity for any fabrication. After the occurrence was
over, P.W. 2 and P.W. 3 informed to P.W. 1 and
immediate4ly on receipt of the information rushed to the
house of the appellant where the appellant was found
27Page 28
standing near the victim. Therefore, as per illustration (a)
to Section 6 of the Evidence Act-
“Whatever was said by the accused to the witness
shortly after the occurrence also would form part of
the transaction and so it has to be considered to be
the relevant facts and circumstances of the case.”
18. Therefore we hold that the statement made by appellant to
P.W. 1 immediately after the occurrence without any long
time lag would be admissible under Section 6 of the
Evidence Act.”
Reliance was also placed on decision rendered in Gentela Vijaya
Vardhan Rao v. State of A.P., 1996 (6) SCC 241, wherein this Court
held, that the principle of law embodied in Section 6 of the Evidence
Act, is expressed as “res gestae”. The rule of “res gestae”, it was held,
is an exception to the general rule, that hearsay evidence is not
admissible. The rationale of making certain statements or facts
admissible under Section 6 of the Evidence Act, it was pointed out, was
on account of spontaneity and immediacy of such statement or fact, in
relation to the “fact in issue”. And thereafter, such facts or statements
are treated as a part of the same transaction. In other words, to be
relevant under Section 6 of the Evidence Act, such statement must have
been made contemporaneously with the fact in issue, or at least
immediately thereupon, and in conjunction therewith. If there is an
interval between the fact in issue, and the fact sought to be proved, then
such statement cannot be described as falling in the “res gestae”
concept. Reliance from the aforesaid judgment was placed on the
following observations:
“15. The principle or law embodied in Section 6 of the Evidence
Act is usually known as the rule of res gestae recognized in
28Page 29
English Law. The essence of the doctrine is that fact which,
though not in issue, is so connected with the fact in issue
"as to form part of the same transaction" becomes relevant
by itself. This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible. The
rationale in making certain statement or fact admissible
under Section 6 of the Evidence Act is on account of the
spontaneity and immediacy of such statement or fact in
relation to the fact in issue. But it is necessary that such
fact or statement must be part of the same transaction. In
other words, such statement must have been made
contemporaneous with the acts which constitute the
offence or at least immediately thereafter. But if there was
an interval, however slight it may be, which was sufficient
enough for fabrication then the statement is not part of res
gestae. In R. v. Lillyman (1896) 2 Q.B. 167 a statement
made by a raped woman after the ravishment was held to
be not part of the res gestae on account of some interval of
time lapsing between the act of rape and the making of the
statement. Privy Council while considering the extent upto
which this rule of res gestae can be allowed as an
exemption to the inhibition against near say evidence, has
observed in Teper v. R. (1952) 2 All E.R. 447, thus :
“The rule that in a criminal trial hearsay evidence is
admissible if it forms part of the res gestae is based
on the propositions that the human utterance is both
a fact and a means of communication and that
human action may be so interwoven with words that
the significance of the action cannot be understood
without the correlative words and the dissociation of
the words from the action would impede the
discovery of the truth. It is essential that the words
sought to be proved by hearsay should be, if not
absolutely contemporaneous with the action or event,
at least so clearly associated with it that they are part
of the thing being done, and so an item or part of the
real evidence and not merely a reported statement.”
The correct legal position stated above needs no further
elucidation.”
29. We have examined the issue of admissibility of the deposition of
the witnesses at serial nos. 63 to 66 with reference to the reason for
which they are desired to be summoned as defence witnesses. We
may first extract Section 6 of the Evidence Act hereunder:
29Page 30
“6. Relevancy of facts forming part of same transaction –
Facts which, though not in issue, are so connected with a
fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place
or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever
was said or done by A or B or the by-standers at the
beating, or so shortly before or after is as to from part of the
transaction, is a relevant fact.
(b) A is accused of waging war against the Government of
India by taking part in an armed insurrection in which
property is destroyed, troops are attacked and goals are
broken open. The occurrence of these facts is relevant, as
forming part of the general transaction, though A may not
have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the
subject out of which the libel arose, and forming part of the
correspondence in which it is contained, are relevant facts,
though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were
delivered to A. the goods were delivered to several
intermediate persons successively. Each delivery is a
relevant fact.”
In our considered view, the test to determine admissibility under the rule
of “res gestae” is embodied in words “are so connected with a fact in
issue as to form a part of the same transaction”. It is therefore, that for
describing the concept of “res gestae”, one would need to examine,
whether the fact is such as can be described by use of words/phrases
such as, contemporaneously arising out of the occurrence, actions
having a live link to the fact, acts perceived as a part of the occurrence,
exclamations (of hurt, seeking help, of disbelief, of cautioning, and the
like) arising out of the fact, spontaneous reactions to a fact, and the like.
30Page 31
It is difficult for us to describe illustration (a) under Section 6 of the
Evidence Act, specially in conjunction with the words “are so connected
with a fact in issue as to form a part of the same transaction”, in a
manner differently from the approach characterized above. We are
satisfied, that the confessional statements recorded by the accused
(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)
in Special Case no. 4 of 2009 to the witnesses at serial nos. 63 to 66 do
not satisfy the ingredients of the rule of “res gestae” incorporated in
Section 6 of the Evidence Act. This is so because the statements made
by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah, cannot be said to have contemporaneously arisen along with
the bomb blasts of 11.7.2006, which is the “fact in issue”. The
confessional statements of the accused (Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of
2009 cannot be perceived to be part of the said “fact in issue”. The
statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah are most certainly not, spontaneous reactions
arising out of the bomb blasts of 11.7.2006. The statements under
reference are not reactions of the kind referred to above. Our above
inferences are fully substantiated, if examined in conjunction with the
legislative illustrations incorporated under Section 6 of the Evidence
Act.
30. It is not necessary for us to further examine, while dealing with
the present controversy, whether a confessional statement of an
31Page 32
occurrence could/would fall within the realm/expanse of the rule of “res
gestae”, in a given exigency. We, therefore, refrain from recording any
conclusions thereon, while dealing with the instant controversy,
because such an issue does not arise herein.
31. We shall now endeavour to determine, whether the statements
made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah) in Special Case no. 4 of 2009, to the witnesses
at serial nos. 64 to 66 are admissible through the said witnesses (at
serial nos. 64 to 66) under Section 11 of the Evidence Act. It is pointed
out by learned counsel representing the appellant, that in law there is a
clear distinction between the “existence of a fact”, and “a statement as
to its existence”. The evidence of the accused persons in Special Case
no.4 of 2009 before the court admitting their guilt would be, according to
learned counsel, evidence about “the existence of the fact” i.e., their
culpability and/or responsibility for the bomb blasts of 11.7.2006. The
evidence of the police officers, it was submitted, is not about the
existence of such fact, but is about recording “a statement as to its
existence”. It is therefore clear, according to learned counsel, that the
evidence of the police officers would not be permissible under Section
11 of the Evidence Act, because the evidence of the witnesses at serial
nos. 63 to 66 fall in the latter category of “a statement about the
existence of a fact”. Moreover, it is contended, that it would be clearly
hit by the “rule of hearsay”.
32Page 33
32. The second contention advanced on behalf of the learned
counsel for the petitioner was aimed at determining the relevance of the
witnesses at serial nos. 63 to 66, with reference to Section 11 of the
Evidence Act. According to the learned counsel for the appellant,
Section 11 makes the “existence of facts” relevant and admissible, and
not “a statement as to such existence”. For this learned counsel for the
appellant placed reliance on Munna Lal v. Kameshwari, AIR 1929 Oudh
113. In this case the question was, whether the defendant no.3 was a
major when he executed the disputed mortgage deed. The evidence
sought to be given comprised of two documents i.e., Exhibit A-10 and A-
11. These documents were held to be inadmissible by the trial court.
Exhibit A-10 was the certified copy, of a statement made by defendant
no.3 in the Revenue Court on 16.2.1925; and Exhibit A-11 was the
statement of the mother of defendant no. 3, before the Revenue Court,
on the same day. In both the statements the age of defendant no. 3
was stated as 21 years. The High Court held, that these statements
could not be admitted, as they were statements of living persons, who
had not been examined as witnesses in the case. If they had been
examined, their statements might have been admissible, under the
Evidence Act (either in corroboration, or in contradiction of the
statements so made). Since neither defendant no. 3, nor the mother of
defendant no. 3, were examined as witnesses, therefore, the statements
were considered as not admissible. The High Court however further
held, that both the persons being living persons, their statements
recorded earlier (on 16.2.1925) could not have been considered
33Page 34
admissible under Section 32(5) of the Evidence Act. The High Court
also rejected the contention, that the aforesaid statements were
admissible under Section 11 of the Evidence Act. The court held, that if
the said statements could also not be admitted under Section 32, then
they could also not be admitted under Section 11. Learned counsel for
the appellant, placed reliance on the following observations recorded in
the judgment:
“It was contended that two documents which are Exs. A-10 and
A-11 are admissible in evidence and should not have been
rejected by the learned Additional District Judge as irrelevant and
inadmissible in evidence. Ex.A-10 is a certified copy of a
statement made by defendant 3, the father of the plaintiffrespondent, in the revenue Court on 16th February 1925. Ex.A-11
is the statement of the mother of defendant 3 also made in the
revenue Court on the same date, i.e., 16th February, 1925. In
both these statements the age of defendant 3 is stated to have
been at the time of the statements 21 years. We do not see how
any of these statements can be admitted in evidence since we
are of the opinion that they are statements of living persons who
have not been examined as witnesses in the case. If they had
been examined as such the statements might have been
admissible under the Evidence Act either in corroboration of the
statement made by them in Court as witnesses or in contradiction
of the statements so made. We, however, find that neither
defendant 3 was put into the witness-box, nor was the mother of
defendant 3 examined as a witness in the case. It was also
admitted that both the persons being living persons their
statements could not have been considered to have been
admissible under S.32, Cl.(5), Evidence Act. It was, however,
contended by the learned counsel for the appellant that these
statements were admissible under S.11, Evidence Act. We are of
opinion that before a fact can be considered to be relevant under
S.11 of the Act it must be shown that it is admissible. It would be
absurd to hold that every fact, which even if it be inadmissible and
irrelevant, would be admissible under S.11. We are supported in
this view by the observations of their Lordships of the Allahabad
High Court in Bala Ram v. Mahabir Singh, (1912) 34 All.341. An
attempt was made in that case, as has been done in this case, to
admit in evidence the deposition made by a person who though
deceased, did not fall within the provisions of S.32, Evidence Act,
on the ground that the provisions of S.11 of the Act would make
such evidence admissible. It was observed by their Lordships
34Page 35
that this argument could not be accepted because if a particular
deposition could not be admitted under the provisions of S.32,
Evidence Act, it could not be held to be admissible under S.11 of
the said Act. We are therefore of opinion that the learned
Additional District Judge was correct in holding that Exs. A-10 and
A-11 which are statements of living persons who have not been
examined as witnesses in this case are inadmissible in evidence
and cannot be relied upon in proof of the allegations of the
defendants appellants that defendant 3 was a major at the time
when he executed the deed.”
In order to substantiate the same contention, reliance was also placed
on the decision rendered by the Allahabad High Court in Mt.Naima
Khatun v. Basant Singh, AIR 1934 Allahabad 406. It was submitted,
that the High Court had concluded in the aforesaid judgment, that a
statement which is not admissible under Section 32 of the Evidence Act,
would also not be admissible under Section 11. And further, that
Section 11 makes the “existence of fact” admissible, and not “a
statement as to its existence”. Our attention was invited to the following
observations recorded in the judgment relied upon:
“The deed of adoption was executed by the defendant's adoptive
mother, Rani Bishen Kuer, and bears her signature in Gurumukhi.
The endorsement of the Sub-Registrar says that she was a
purdanasin lady and admitted the execution and completion of the
document from behind the purdah of a wooden door leaf. In this
document she refers to the fact of having adopted the boy, and
that he would be the owner of the entire property of her husband
like the begotten son of her husband. She also states that she
had performed the adoption ceremonies according to the custom
prevailing in her husband's family, and further states "at present
Basant Singh aforesaid is about one and a half years old." The
lady is dead and cannot now be called. The condition required in
the opening portion of Section 32, Evidence Act, which alone is
relied upon for purposes of admissibility, is therefore fulfilled. The
learned advocate for the respondent strongly argues that this
document falls within Sub-section 5 of Section 32, and that the
statement, inasmuch as it relates to the existence of relationship
by blood and adoption, made by a person having a special means
of knowledge and at a time when no question in dispute had
arisen, was admissible in evidence. There can be no doubt that
35Page 36
the rule of English Law is particularly strict, and the admission of
hearsay evidence in pedigree cases is confined to the proof of
pedigree and does not apply to proof of the facts which constitute
a pedigree, such as birth, death and marriage, when they have to
be proved for other purposes. In Haines v. Guthrie (1883) 13
Q.B.D. 818 an affidavit filed by the defendant's father stating the
date of the defendant's birth in an action to which the plaintiff had
not been a party was held inadmissible as evidence of the age of
the defendant in support of his defence. In India we have Section
32, Evidence Act, which does not seem to be so strict. It is
however clear that if a statement does not fall within Section 32, it
could not be admissible under Section 11 of the Act: Bela Ram v.
Mahabir Singh (1912) 34 All. 341 and Munna Lal v. Kameshari
Dat A.I.R. 1929 Oudh 113. Obviously there is a difference
between the existence of a fact and a statement as to its
existence. Section 11 makes the existence of facts admissible,
and not statements as to such existence, unless of course the
fact of making that statement is itself a matter in issue.”
Learned counsel for the appellant also placed reliance on A.PL.S.V.L.
Sevugan Chettiar v. Raja Srimathu Muthu Vijaya Raghunath, AIR 1940
Madras 273, wherein it has been held, that Section 11 must be read
subject to the other provisions of the Act, and that, a statement not
satisfying the conditions laid down in Section 32 cannot be admitted
under Section 11, merely on the ground, that if admitted it may
probabilise or improbabilise a fact in issue or a relevant fact. Reference
was made to the following observations noted therein:
“11. We may here refer to one other set of documents relied on
by the defendants which if admissible, will be very strong
evidence in support of the defendants' case. Exs. 1, 1-a, 4, 5 and
6 are a group of documents relating to plots adjacent to the pond
marked Neeranikuttai, just to the west of the point marked J-l in
Ex. L. The bearing of these documents on the present
controversy is that in all of them the property dealt with is
described as situate in Iluppakkudi. If they are admissible, they
will cearly show that Iluppakkudi limits extended even further
south of the line fixed by the appellate survey officer. The learned
Subordinate Judge has rejected these documents as irrelevant.
Mr. Eajah Ayyar has strongly contested this view of the lower
Court. He maintained that they must be held to be admissible
under Sections 11 and 13, Evidence Act. The decisions referred
36Page 37
to in para. 613 of Taylor on Evidence would support the view that
they may be admissible even under Clause 4 of Section 32,
Evidence Act, as statements relating to a matter of public or
general interest, namely village boundaries. But in view of the
observations of their Lordships of the Judicial Committee in
Subramanya Somayajulu v. Sethayya (1923) 10 A.I.R. Mad. 1 as
to the scope of this clause, we do not feel ourselves at liberty to
follow the English cases. Mr. Rajah Aiyar contended that the
documents may fall under Clause 3 of Section 32. We are unable
to accede to this contention. As regards Section 11, it seems to
us that Section 11 must be read subject to the other provisions of
the Act and that a statement not satisfying the conditions laid
down in Section 32 cannot be admitted merely on the ground that,
if admitted, it may probabilize or improbabilize a fact in issue or a
relevant fact.”
Our attention was also drawn to the decision rendered by the Bombay
High Court in R.D. Sethna v. Mirza Mahomed Shrazi (No.4), (1907) 9
Bombay Law Reporter 1047, wherein it was held as under:
“….. There is a test, a simple and a sufficient test, which
reasonably applied yields consistent and intelligible results.
Section 32 imposes restrictions upon the admissibility of
statements made by persons who cannot be brought before the
Court to give their own evidence. The object of those restrictions
and the reason for them are plain. The basic: principle of legal
evidence being that the Court must always have the best, it
follows that where persons can be, they must be brought before
the Court to tell what they know at first hand. Their veracity can
then be best tested by the art of cross-examination. Where
however witnesses cannot be brought before the Court, their
previous statements are at best indirect evidence of a kind that a
Court would not, except under necessity, receive at all. The
conditions which when compelled by necessity to take this
evidence or none, are imposed upon its admissibility plainly aim
at affording some guarantee of its truth. As there is to be no
chance of testing the man by cross-examination his statement will
not be admitted unless it has been made under conditions which,
looking to the ordinary course of human affairs, raise pretty strong
presumptions that it was a true statement. Thus the whole scope
and object of Section 32 centre upon securing the highest degree
of truth possible in the circumstances for the statement. And it
follows that where the person tendering such a statement is
indifferent as to its truth or falsehood there is nothing to bring that
section into play. Briefly the test whether the statement of a
person who is dead or who cannot be found is relevant under
Section 11 and admissible under that section, (presuming of
37Page 38
course that it is in other respects within the intention of the
section) although it would not be admissible under Section 32 is
this. It is admissible under Section 11 when it is altogether
immaterial whether what the dead man said was true or false, but
highly material that he did say it. In these circumstances no
amount of cross-examination could alter the fact, if it be a fact that
he did say the thing and if nothing more is needed to bring the
tiling said in under Section 11, then the case is outside Section
32. …..”
Likewise, while referring to the decision in Nihar Bera v. Kadar Bux
Mohammed, AIR 1923 Calcutta 290, it was submitted, that recitals
(statements made in a document) would not become a part of evidence,
unless the person(s) making the recital(s) is/are brought before the
Court when such a person is alive. In the present case also, it was
submitted, that the accused in Special Case no.4 of 2009 who had
made the confessional statements, are living persons, and unless they
are examined, there is no question of accepting their confessional
statement. In this behalf, learned counsel relied upon the following
conclusions recorded in the aforesaid judgment :
“In the second place, it has been urged against the judgment of
the Subordinate Judge that he placed reliance upon recitals in a
deed of release executed by Nanu (the son of Kanu and brother
of the two plaintiffs) in favour of the defendant. No doubt the fact
that Nanu executed a deed of release constitutes a transaction
which is relevant for the purpose of investigation of the question
in controversy. But the recitals in the document do not become a
part of the evidence. They are assertions by a person who is
alive and who might have been brought before the Court if either
of the parties to the suit had so desired. This distinction is
frequently overlooked and when a document has been admitted
in evidence as evidence of a transaction the parties are often apt
to refer to the recitals therein as relevant evidence.”
33. Before dwelling on the issue in hand, it is necessary to extract
herein Section 11 of the Evidence Act. The same is accordingly
reproduced hereunder:-
38Page 39
“11. When facts not otherwise relevant become relevant -
Facts not otherwise relevant, are relevant-
(1) if they are inconsistent with any fact in issue or
relevant fact;
(2) if by themselves or in connection with other facts
they make the existence or non-existence of any fact
in issue or relevant fact highly probable or
improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta
on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was committed,
A was at a distance from the place where it was committed,
which would render it highly improbable, though not
impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime.
The circumstances are such that the crime must have been
committed either by A, B, C or D. Every fact which shows
that the crime could have been committed by no one else
and that it was not committed by either B, C or D is
relevant.”
A perusal of Section 11 aforesaid reveals, that facts inconsistent with
“facts in issue” are included in the realm of relevance. Likewise, facts
which make the existence or non-existence of a “fact in issue” highly
probable or improbable, have also been included in the realm of
relevance. Insofar as the present controversy is concerned, it is the
contention of the learned counsel for the accused-respondents, that the
confessional statements made by the accused (Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of
2009, to the witnesses at serial nos. 64 to 66, would positively bring the
39Page 40
said confessional statements within the realm of relevance, since the
said confessions would be clearly inconsistent with the culpability of the
accused in Special Case no. 21 of 2006. It was submitted at the behest
of the accused-respondents, that even if there was some degree of
variance in assuming the aforesaid inference, the confessional
statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009
would go a long way, to make the existence of culpability of the
accused-respondents in Special Case no. 21 of 2006 highly improbable.
Thus viewed, it was strongly canvassed at the hands of the learned
counsel representing the accused-respondents, that the High Court was
fully justified in allowing the accused-respondents to substantiate the
confessional statements made by the accused (Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of
2009 through the witnesses at serial nos. 63 to 66.
34. We have given our thoughtful consideration to the plea raised at
the hands of the accused-respondents under Section 11 of the
Evidence Act. There can certainly be no doubt about the relevance of
the confessional statements made by the accused (Sadiq Israr Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no.
4 of 2009, as they would clearly demonstrate the inconsistency of the
case set up by the prosecution against the accused-respondents in
Special Case no. 21 of 2006. In such an eventuality, there would also
be no doubt, that the prosecution case would be rendered highly
40Page 41
improbable. The only serious concern however, to our mind, is whether
the said evidence is admissible, as is the case set up by the accusedrespondents, through the witnesses at serial nos. 63 to 66. Insofar as
the instant aspect of the matter is concerned, reference may be made to
Section 60 of the Evidence Act, which is being extracted hereunder:-
“60. Oral Evidence must be direct - Oral evidence must, in all
cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of a
witness who says he perceived it by that sense or in that
manner;
If it refers to an opinion or to the grounds in which that
opinion is held, it must be the evidence of the person who
holds that opinion on those grounds:
Provided that the opinion of experts expressed in any
treatise commonly offered for sale, and the grounds on
which such opinions are held, may be proved by the
production of such treatise if the author is dead or cannot
be found, or has become incapable of giving evidence, or
cannot be called as a witness without an amount of delay
or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence
or condition of any material thing other than a document,
the Court may, if it thinks fit, require the production of such
material thing for its inspection.”
A perusal of Section 60 aforementioned leaves no room for any doubt,
that oral evidence in respect of a fact, must be of a primary nature. It
would be evidence of a primary nature, if it satisfies the state of facts
described as “direct” in Section 60 extracted above. Illustrative
41Page 42
instances of direct/primary evidence, are expressed in Section 60 itself.
When it pertains to a fact which can be seen, it must be the statement of
the person who has himself seen it; if when it refers to a fact which can
be perceived, it must be the statement of the person who has perceived
it; and when it pertains to an opinion (or the basis on which that opinion
has been arrived at), it must be the statement of the person who has
himself arrived at such opinion. Stated differently, oral evidence cannot
be hearsay, for that would be indirect/secondary evidence of the fact in
issue (or the relevant fact).
35. In order to determine the truthfulness of the confessional
statements which are sought to be relied upon by the accusedrespondents, it is inevitable in terms of the mandate of Section 60 of the
Evidence Act, that the accused (Sadiq Israr Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, who
had made the said confessional statements, must themselves depose
before a Court for effective reliance, consequent upon the relevance
thereof having been affirmed by us under Section 11 of the Evidence
Act. We affirm the fine distinction made by the learned counsel for the
accused-respondents in pointing out that the confessional statements
made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah, would only constitute “a statement as to the existence of such
fact”. That would not be direct/primary evidence. The same would
clearly fall in the mischief of the “hearsay rule”. In order to be relevant
under Section 11 of the Evidence Act, such statement ought to be “a
42Page 43
statement about the existence of a fact”, and not “a statement as to its
existence”. In our considered view, therefore, whilst it is permissible to
the accused-respondents to rely on the confessional statements made
by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah, it is open to them to do so only through the persons who had
made the confessional statements. By following the mandate contained
in Section 60 of the Evidence Act, it is not open to the accusedrespondents, in view of the expressed bar contained in Section 60 of
the Evidence Act, to prove the confessional statements through the
witnesses at serial nos. 63 to 66. In the aforesaid view of the matter, it
is not possible for us to accept the plea advanced at the hands of the
learned counsel for the accused-respondents, that they should be
permitted to prove the confessional statements through the witnesses at
serial nos. 63 to 66.
36. It is necessary in connection with the conclusion drawn by us
hereinabove, to deal with the submission advanced at the hands of the
learned counsel for the accused-respondents, even on the touchstone
of Section 32 of the Evidence Act. Section 32 aforesaid is being
extracted hereunder:-
“32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant –
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the
following cases:-
43Page 44
(1) when it relates to cause of death - When the
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question.
Such statements are relevant whether the person
who made them was or was not, at the time when
they were made, under expectation of death, and
whatever may be the nature of the proceeding in
which the cause of his death comes into question.
(2) or is made in course of business - When the
statement was made by such person in the ordinary
course of business, and in particular when it consists
of any entry or memorandum made by him in books
kept in the ordinary course of business, or in the
discharge of professional duty; or of an
acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any
kind; or of a document used in commerce written or
signed by him; or of the date of a letter or other
document usually dated, written or signed by him.
(3) or against interest of maker - When the statement
is against the pecuniary or proprietary interest of the
person making it, or when, if true it would expose him
or would have exposed him to criminal prosecution or
to a suit for damages.
(4) or gives opinion as to public right or custom, or
matters of general interest - When the statement
gives the opinion of any such person, as to the
existence of any public right or custom or matter of
public or general interest, of the existence of which, if
it existed, he would have been likely to be aware,
and when such statement was made before any
controversy as to such right, custom or matter had
arisen.
(5) or relates to existence of relationship - When the
statement relates to the existence of any relationship
by blood, marriage or adoption between persons as
to whose relationship by blood, marriage or adoption
the person making the statement had special means
of knowledge, and when the statement was made
before the question in dispute was raised.
44Page 45
(6) or is made in will or deed relating to family affairs
- When the statement relates to the existence of any
relationship by blood, marriage or adoption between
persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such
deceased person belonged, or in any family
pedigree, or upon any tombstone, family portrait, or
other thing on which such statements are usually
made, and when such statement was made before
the question in dispute was raised.
(7) or in document relating to transaction mentioned
in section 13, Clause (a). - When the statement is
contained in any deed, will or other document which
relates to any such transaction as is mentioned in
Section 13, Clause (a).
(8) or is made by several persons and expresses
feelings relevant to matter in question - When the
statement was made by a number of persons, and
expressed feelings or impressions on their part
relevant to the matter in question.
Illustrations
(a) The question is, whether A was murdered by B ; or
A dies of injuries received in a transaction in the course of
which she was ravished. The question is, whether she was
ravished by B; or
The question is, whether A was killed by B under such
circumstances that a suit would lie against B by A's widow.
Statements made by A as to the cause of his or her death,
referring respectively to the murder, the rape, and the
actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon, regularly kept
in the course of business, stating that, on a given day he
attended A's mother and delivered her of a son, is a
relevant fact.
(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly
kept in the course of business, that, on a given day, the
solicitor attended A at a place mentioned, in Calcutta , for
the purpose of conferring with him upon specified business,
is a relevant fact.
45Page 46
(d) The question is, whether a ship sailed from Bombay
harbour on a given day.
A letter written by a deceased member of a merchant's firm,
by which she was chartered, to their correspondents in
London to whom the cargo was consigned, stating that the
ship sailed on a given day from Bombay harbour, is a
relevant fact.
(e) The question is, whether rent was paid to A for certain land.
A letter from A's deceased agent to A, saying that he had
received the rent on A's account and held it at A's orders, is
a relevant fact.
(f) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married
them under such circumstances that the celebration would
be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found,
wrote a letter on a certain day. The fact that a letter written
by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot
be procured, is a relevant fact.
(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that
the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain
day in a particular market. A statement of the price, made
by a deceased banya in the ordinary course of his business
is a relevant fact.
(k) The question is, whether A, who is dead, was the father of
B.
A statement by A that B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A.
A letter from A's deceased father to a friend, announcing
the birth of A on a given day, is a relevant fact.
46Page 47
(m) The question is, whether, and when, A and B were married.
An entry in a memorandum-book by C, the deceased father
of B, of his daughter's marriage with A on a given date, is a
relevant fact.
(n) A sues B for a libel expressed in a painted caricature
exposed in a shop window. The question is as to the
similarity of the caricature and its libellous character. The
remarks of a crowd of spectators on these points may be
proved.”
According to the learned counsel for the accused-respondents, Section
32 expressly legitimises hearsay evidence pertaining to the cause of a
person’s death, or the circumstances of the transaction which resulted
in a person’s death. Whilst the aforesaid submission is correct, it is not
possible for us to accept the same as extendable, to the present case.
37. A perusal of Section 32 reveals, that it is permissible, while
leading evidence relating to the cause of a person’s death or relating to
the circumstances which resulted in his death, to produce in evidence
statements, written or verbal, made by a person who has since died, or
by the persons who cannot be found, or by those who have become
incapable of giving evidence, or by those whose attendance cannot be
procured without an amount of delay. It is clear, that secondary
evidence is permissible when the issue relates to the cause of a
person’s death, or the circumstances of a transaction which resulted in
his death. But such permissibility, would extend only to the exigencies
expressly enumerated in Section 32 of the Evidence Act. The situations
wherein secondary evidence is permissible under Section 32 of the
Evidence Act include statements made by persons who have since
47Page 48
died, or statements made by persons who cannot be found, or
statements made by persons who have become incapable of giving
evidence, or statements made by persons who cannot be procured
without an amount of delay or expense. Neither of these exigencies
exists insofar as the present controversy is concerned. The authors of
the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, are very
much available and their presence can be procured by the accusedrespondents to be presented as defence witnesses on their behalf. In
the aforesaid view of the matter, it is not possible for us to accept, that
the accused-respondents can place reliance on Section 32 of the
Evidence Act, in order to lead evidence in respect of the confessional
statements (made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah), by recording evidence to the statements of the
witnesses at serial nos. 63 to 66.
38. It is also essential to notice herein, that in order to render Section
32 of the Evidence Act, admissible for recording the statements of
witnesses at serial nos. 63 to 66, in lieu of the confessional statements
made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah, learned counsel for the accused-respondents had placed
emphatic reliance on Article 20 of the Constitution of India. Article 20
aforementioned is reproduced hereunder:-
“20. Protection in respect of conviction for offences –
(1) No person shall be convicted of any offence except
for violation of a law in force at the time of the
48Page 49
commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might
have been inflicted under the law in force at the time
of the commission of the offence.
(2) No person shall be prosecuted and punished for the
same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself.”
Relying on sub-Article (3) of Article 20, it was the contention of the
learned counsel for the accused-respondents, that since no accused
can be compelled to be a witness against himself, it would not be open
to the accused-respondents to summon Sadiq Israr Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah, and thereby compel
them to be witnesses against themselves. In that sense, it was
submitted, that the authors of the confessional statements must be
deemed to be persons incapable of giving evidence and/or persons
whose attendance cannot be procured for deposition, during the trial of
Special Case no. 21 of 2006.
39. The plea advanced at the hands of the learned counsel for the
accused-respondents, as has been noticed in the foregoing paragraph,
is clearly not available to the accused-respondents in view of the
protection afforded to a witness who would find himself in such a
peculiar situation under Section 132 of the Evidence Act. Section 132
of the Evidence Act is being extracted hereunder:-
“132. Witness not excused from answering on ground that
answer will criminate - A witness shall not be excused
from answering any question as to any matter relevant to
the matter in issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to such
49Page 50
question will criminate, or may tend directly or indirectly to
criminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind:
Proviso
Provided that no such answer, which a witness shall be
compelled to give, shall subject him to any arrest or
prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false evidence
by such answer.”
Without stating anything further, we are satisfied to record, that Section
132 of the Evidence Act clearly negates the basis of the submission,
adopted by the learned counsel for the accused-respondents, for being
permitted to lead secondary evidence to substantiate the confessional
statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah. Accordingly, we hereby reiterate the
conclusion drawn by us hereinabove, namely, that the confessional
statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009
cannot be proved in evidence, through the statements of the witnesses
at serial nos. 63 to 66. Needless to mention, that the authors of the
confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah) may be produced as defence witnesses by the
accused-respondents, for their statements would fall in the realm of
relevance under Section 11 of the Evidence Act. And in case Sadiq
Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah appear
as defence witnesses in Special Case no. 21 of 2006, the protection
available to a witness under Section 132 extracted above, would also
50Page 51
extend to them, if they are compelled to answer questions posed to
them, while appearing as defence witnesses in Special Case no. 21 of
2006.
40. It is also necessary to examine the issue in hand with reference to
the provisions of the MCOCA. The controversy pertaining to the
relevance of the statement of witnesses at serial nos. 63 to 66, has to
be understood with reference to Section 18 of the MCOCA. We shall
now record our determination on the scope and effect of Section 18 of
the MCOCA. Section 18 aforementioned is being extracted hereunder:
“Section 18 - Certain confessions made to police officer to be
taken into consideration-- (1) Notwithstanding anything in the
Code or in the Indian Evidence Act, 1872 (I of 1872), but subject to
the provisions of this section, a confession made by a person
before a police officer not below the rank of the Superintendent of
Police and recorded by such police officer either in writing or on
any mechanical devices like cassettes, tapes or sound tracks from
which sounds or images can be reproduced, shall be admissible in
the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is
charged and tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the
same language in which the person is examined and as narrated
by him.
(3) The police officer shall, before recording any confession under
sub-section (1), explain to the person making it that he is not bound
to make a confession and that, if he does so, it may be used as
evidence against him and such police officer shall not record any
such confession unless upon questioning the person making it, he
is satisfied that it is being made voluntarily. The concerned police
officer shall, after recording such voluntary confession, certify in
writing below the confession about his personal satisfaction of the
voluntary character of such confession, putting the date and time of
the same.
(4) Every confession recorded under sub-section (1) shall be sent
forthwith to the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate having jurisdiction over the area in which such
51Page 52
confession has been recorded and such Magistrate shall forward
the recorded confession so received to the Special court which
may take cognizance of the offence.
(5) The person whom a confession had been recorded under subsection (1) shall also be produced before the Chief Metropolitan
Magistrate or the Chief Judicial Magistrate to whom the confession
is required to be sent under sub-section (4) alongwith the original
statement of confession, written or recorded on mechanical device
without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial
Magistrate shall scrupulously record the statement, if any, made by
the accused so produced and get his signature and in case of any
complaint of torture, the person shall be directed to be produced for
medical examination before a Medical Officer not lower in rank than
of an Assistant Civil Surgeon.”
Section 18 of the MCOCA through a non-obstante clause, overrides the
mandate contained in Sections 25 and 26 of the Evidence Act, by
rendering a confession as admissible, even if it is made to a police
officer (not below the rank of Deputy Commissioner of Police).
Therefore, even though Sections 25 and 26 of the Evidence Act render
inadmissible confessional statements made to a police officer, or while
in police custody, Section 18 of the MCOCA overrides the said
provisions and bestows admissibility to such confessional statements,
as would fall within the purview of Section 18 of the MCOCA. It is
however relevant to mention, that Section 18 of the MCOCA makes
such confessional statements admissible, only for “the trial of such
person, or co-accused, abettor or conspirator”. Since Section 18 of the
MCOCA is an exception to the rule laid down in Sections 25 and 26 of
the Evidence Act, the same will have to be interpreted strictly, and for
the limited purpose contemplated thereunder. The admissibility of a
confessional statement would clearly be taken as overriding Sections 25
52Page 53
and 26 of the Evidence Act for purposes of admissibility, but must
mandatorily be limited to the accused-confessor himself, and to a coaccused (abettor or conspirator). It is not the contention of the learned
counsel for the accused-respondents that the persons who had made
the confession (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) before witnesses at serial nos. 64 to 66 are the
accused themselves along with the co-accused (abettor or conspirator)
in Special Case no.21 of 2006. It is therefore apparent, that the
ingredients which render a confessional statement admissible under
Section 18 of the MCOCA are not satisfied in the facts of the present
case. For that matter Section 18 of the MCOCA, has to be viewed in
the same manner, as we have recorded our analysis of Section 15 of
the TADA herein above. In the aforesaid view of the matter, it is
imperative for us to conclude, that Section 18 of the MCOCA cannot
constitute the basis of relevance of the confessional statements made
by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) in Special Case no. 4 of 2009, to the case in hand. It
is therefore not possible for us to accept the admissibility of the
witnesses at serial nos. 63 to 66 in so far as Special Case no. 21 of
2006 is concerned.
41. One of the considerations which weighed heavily with the High
Court in setting aside the order of the MCOCA Special Court dated
1.8.2012, whereby the request of the accused-respondents to summon
witnesses at serial nos. 63 to 66 as defence witnesses was declined,
53Page 54
stands highlighted by the High Court in paragraph 29 (of the impugned
order dated 26.11.2012). Relevant part of paragraph 29
aforementioned is being reproduced hereunder:
“29. The absurdity of such reasoning does not end here. If that
the concerned Dy. Commissioners of Police would not be in
a position to state ‘whether the facts stated in such
confessions were true’ is a proper ground to disallow their
evidence, how can their evidence be given in MCOC
Special Case No.4 of 2009? How can they, in that case
would be in a position to state so? This problem will come
in all the confessions, as the truth of the facts stated in the
confession will be known to the confessor, and not to the
person to whom it is made. Such person only gives
evidence of the fact that a confession was made, and it is
the court that decides whether the fact of confession having
been made is true and also whether the facts stated in the
confession are true. Confessions are treated as
circumstantial evidence of the truth of the facts stated
therein and it is the court that decides whether the facts
stated in the confession should be believed or not in a
given case. It is a matter of evaluation of evidence to be
done by the Court after it is tendered. There is therefore,
no substance in such contentions, which have, rightly been
given up by the respondent-State, before this Court….”
In our deliberations in the preceding few paragraphs, we have brought
out the scope of applicability of Section 18 of the MCOCA. It needs to
be reiterated that Section 18 of the MCOCA is an exception to Sections
25 and 26 of the Evidence Act, only in a trial against an accused (or
against a co-accused - abettor or conspirator) who has made the
confession. The said exemption has not been extended to other trials in
which the person who had made the confession is not an accused.
Since the vires of Section 18 of the MCOCA is not subject matter of
challenge before us, it is imperative for us to interpret the effect of
Section 18 of the MCOCA as it is.
54Page 55
42. Another submission advanced at the hands of the learned
counsel for the accused-respondents which deserves notice was based
on Sections 35 and 80 of the Evidence Act. Sections 35 and 80
aforementioned are being extracted hereunder:-
“35. Relevancy of entry in public record or an electronic
record made in performance of duty – An entry in any
public or other official book, register or record or an
electronic record, stating a fact in issue or relevant fact, and
made by a public servant in the discharge of his official
duty, or by any other person in performance of a duty
specially enjoined by the law of the country in which such
book, register, or record or an electronic record is kept, is
itself a relevant fact.”
80. Presumption as to documents produced as record of
evidence -
Whenever any document is produced before any Court,
purporting to be a record or memorandum of the evidence,
or of 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 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.”
43. While endeavouring to determine the viability of the production of
the witnesses at serial nos. 63 to 66 as defence witnesses, it is
important to understand why the aforesaid witnesses are sought to be
examined as defence witnesses. The instant aspect of the matter has
been dealt with by the MCOCA Special Court in paragraph 5 (of its
55Page 56
order dated 1.8.2012) wherein the submission of the counsel
representing the accused-respondents was projected as under:
“In the confession, there is a reference to the blasts in Mumbai
after 2005. He gave example stating that in a case where it is
alleged that ‘A’ has committed the blast and he is praying for
documents of accused ‘B’ in some other trial to prove his
innocence. ‘B’ has admitted his guilt in the other case and has
also admitted that he has committed the b last in the case of ‘A’.
‘A’ is innocent and he has not committed the blast. In these
circumstances can ‘A’ be hanged? He submits that the
confessions are the court documents and the accused want to
rely on them.”
Likewise, the High Court (in the impugned order dated 26.11.2012) had
noticed the averments made at the behest of the appellants before it
(the accused-respondents herein) in paragraph 30 as under:
“Again, there exists a difference between the truth of the facts
contained in a confession, and the fact that a confession exists.
The fact that someone else has confessed about having
committed the crime with which the appellants are charged is
relevant in itself. In fact, it is difficult to understand as to how the
court is supposed to decide whether the confession is truthful or
not before the evidence of such confession is given. It is
interesting to note that though some arguments were advanced
by the learned Advocate General to the effect that ‘the fact that
someone else has confessed about the same crime for which the
appellants are being charged, is by itself not relevant at all unless
the truth of such confession is sought to be proved,’ that was not
the stand of the learned Special Public Prosecutor before the Trial
Court. In fact, the impugned order itself records that the objection
of the Special Public Prosecutor was that if the confessions of the
accused in the MCOC Special Case No.4 of 2009 is brought on
record of the case against the appellants, it would be inconsistent
with the guilt of the accused (paragraph no.6 of the order). It was
the specific contention of the Special Public Prosecutor before the
Trial Court that the appellants wanted to bring the said confession
on record in the present case, because such confessions would
be inconsistent with the guilt of the appellants.”
It clearly emerges from the submissions advanced at the behest of the
accused-respondents, that the confessions made by the accused in
Special Case no.4 of 2009 are sought to be adopted for establishing the
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fact, that it was not the accused-respondents herein who are
responsible for the seven bomb blasts in seven different first class
compartments of local trains of Mumbai Suburban Railways on
11.7.2006, but it was the accused (Sadiq Israr Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 who
had already confessed to the same. It is therefore apparent, that the
objective of the accused-respondents is not to rely on the factum of a
confessional statement having been recorded. The objective is to
achieve exculpation of blameworthiness on the basis of the truth of the
confessional statements made before witnesses at serial nos. 63 to 66.
It needs to be kept in mind that the witnesses sought to be produced in
their defence by the accused-respondents (the witnesses at serial nos.
64 to 66), cannot vouchsafe the truth or falsity of the confessional
statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah. It is indeed the persons who had made such
confessions who can do so. Since it is the truthfulness of the
confessional statements made before the witnesses at serial nos. 63 to
66 which is the real purpose sought to be achieved, we are of the view
that only those who had made the confessional statements (Sadiq Israr
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) can
vouchsafe for the same. This can only be done under the provisions of
the Evidence Act. For that the accused-respondents, can only pin their
hopes on the persons who had made the confessional statements.
There is certainly no escape from the above course in view of the
mandate of Section 60 of the Evidence Act. The effect of Section 60
57Page 58
aforesaid, has been highlighted and discussed above. This would also
constitute one of the reasons for accepting the contention advanced
before us on behalf of State of Maharashtra. In the background of the
object sought to be achieved having been clarified by us, it is apparent,
that Sections 35 and 80 would be of no avail to the accused respondents in the facts and circumstances of this case, since we have
already concluded hereinabove, that
the witnesses at serial nos. 63 to
66 cannot be summoned, as their evidence before the trial Court would
not fall within the realm of admissibility with reference to “facts in issue”
or “relevant facts”.
44. From different angles and perspectives based on the provisions
of the Evidence Act and MCOCA examined on the basis of submissions
advanced by the learned counsel representing the rival parties, it is
inevitable for us to conclude, that the accused-respondents cannot be
permitted to summon the witnesses at serial nos. 63 to 66 as defence
witnesses, for the specific objective sought to be achieved by them.
45. For the reasons recorded hereinabove, we are satisfied, that the
impugned order dated 26.11.2012 passed by the High Court deserves
to be set aside. The same is accordingly hereby set aside. It is held,
that it is not open to the accused-respondents to produce the witnesses
at serial nos. 63 to 66 in order to substantiate the confessional
statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah (the accused in Special Case no. 4 of 2009),
58Page 59
who are not accused/co-accused in Special Case no. 21 of 2006 (out of
the proceedings whereof, the instant appeal has arisen).
46. Appeal stands allowed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
March 14, 2013.
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Digital Performa
Case No. : Criminal Appeal No..... of 2013
(Arising out of SLP (Crl.) No. 9707 of 2012)
Date of Decision : 14.3.2013
C.A.V. on : 23.1.2013
Cause Title : State of Maharashtra
Versus
Kamal Ahmed Mohammed Vakil Ansari
& Ors.
Coram : Hon’ble Mr. Justice P. Sathasivam
Hon’ble Mr. Justice Jagdish Singh Khehar
Judgment delivered by : Hon’ble Mr. Justice Jagdish Singh Khehar
Nature of Judgment : Reportable
60
