Delhi High Court
State(Delhi Administration) vs Shahid Mian And Anothers on 16 July, 2009
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 09, 2009
Judgment delivered on : July 16 , 2009
+ CRIMINAL APPEAL NO.175/1996
STATE (DELHI ADMN.) ..... Appellant
Through: Mr. M.N. Dudeja, Advocate
versus
SHAHID MIAN & ANR. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. This appeal is directed against the order of acquittal dated
08.05.1995 passed by the learned Additional Sessions Judge in
Sessions Case No.94/94 arising out of case FIR No.429/93, Police
Station Nangloi, under Section 302/506/34 of the Indian Penal Code
read with Section 27 of the Arms Act.
2. Briefly stated, case of the prosecution as disclosed in the charge
sheet is that on 04.10.1993 at about 4.29 AM wireless operator of
police control room visited Police Station Nangloi and informed that
one Mohd. Idrish resident of Budh Bazar, Nangloi has given information
on telephone that a murder has been committed in House No.552,
adjacent to House No.510 of Shahid Parvesh. The information was
recorded as DD No.48B and entrusted to SI Raghbir Singh for
verification who immediately left the Police Station. Immediately
thereafter, the accused Shahid Mian reached at the Police Station. He
was carrying two blood stained churras (knives) and he stated that he
has killed his sister Sajida Begum and her sons Sikandar Ali and Shahid
Ali at his House No.B-463, Camp No.2, Nangloi, by stabbing them with
the knife. Thereafter, he along with Sagir Khan went to House No.A-
616, Camp No.2, Nangloi where his elder sister's son Sartaj Mian was
sleeping with his co-workers Mohd Rashid, Sanaullah Khan and Mohd.
Anwar. Sagir Khan caught hold of Sartaj Mian and he killed Sartaj Mian
with the churri. He also stated to the Duty Officer that because of
noise, co-workers of deceased Sartaj Mian awoke and he threatened to
kill them if they intervened. Statement of accused Shahid Mian was
recorded by the Duty Officer on basis of which a formal FIR was
registered and it was sent to SI Raghbir Singh through ASI Dharambir
Singh. It is further alleged that the Duty Officer took the knife and the
churri from the accused Shahid Mian and converted them into sealed
packets before taking possession.
3. SI Raghbir Singh, on the receipt of the copy of the FIR,
interrogated accused Shahid Mian, who made a disclosure statement
and pursuant to that disclosure statement, he led the Police party to
House No.B-463, Camp No.2, Nangloi from where dead bodies of Sajida
Begum and her sons Sikandar Ali and Shahid Ali were recovered.
Thereafter, the accused Shahid Mian led the Police party to House
No.A-616, Camp No.2, Nangloi from where dead body of deceased
Sartaj Mian was recovered. Post mortem of dead bodies was got
conducted. The blood stained clothes of the deceased persons,
besides a blood stained gudri recovered from House No.B-463, Camp
No.2 were also seized. All the seized articles including blood stained
clothes of the accused Shahid Mian and the blood stained knife and
churri were sent for serological examination. Co-accused Sagir Khan
was also arrested and after completing the necessary formalities of
investigation, both the accused were sent for trial for the offences
punishable under Section 302/506/34 IPC and Section 27 of the Arms
Act.
4. Both the accused were charged for offences under Section
302/34 IPC for having committed murder of Sajida Begum, Sikandar Ali,
Shahid Ali and Sartaj Mian. They were also charged for the offence of
criminal intimidation punishable under Section 506 read with Section
34 IPC. Accused Shahid Mian was further charged for the offence
under Section 27 Arms Act and for having illegal possession of knife
and a churi with intention to use the same for unlawful purpose and
used for committing murder. Both the accused pleaded not guilty and
claimed trial.
5. On consideration of evidence and statement of the accused
person, learned Trial Judge acquitted both the accused, vide impugned
judgment, giving them benefit of doubt. Feeling aggrieved by the
order of acquittal, State has come in appeal.
6. On perusal of record, we notice PW2 Sanaullah Khan and PW3
Mohd Rashid, the alleged eye witnesses to murder of deceased Sartaj
Mian, are hostile witnesses and they have not supported the case of
the prosecution inasmuch as according to them, murder was
committed by a single unknown assailant. Secondly, none of these
witnesses have identified either of the accused as the person who
killed Sartaj Mian. So far as murder of other three deceased Sajida
Begum, Sikandar Ali and Shahid Ali is concerned, there is no eye
witness to the occurrence. Thus, the prosecution case hinges on the
circumstantial evidence only.
7. Learned Trial Judge while recording acquittal of both the accused
has concluded that the confession made by accused Shahid Mian to
the Duty Officer, Police Station Nangloi is inadmissible in evidence in
view of Section 25 of the Indian Evidence Act.
8. Learned counsel for the State has submitted that the trial court
has erred in rejecting the confessional statement of the accused
Shahid Mian. He has submitted that the learned trial court ought to
have considered that the accused Shahid Mian had voluntarily visited
the Police Station and narrated the entire incident which information
has formed basis of registration of the case. He has argued, since the
aforesaid statement, which is confessional in nature, was made
voluntarily and without any inducement or threat on the part of the
Police and at that time accused was not even in custody of the police,
learned trial court ought to have relied upon the same, particularly,
when that confession was made before the registration of the case.
9. We do not find any merit in the submission made by the learned
counsel for the State. The law relating to confession is enumerated in
Sections 24 to 30 of the Indian Evidence Act and Section 162 and 164
of the Code of Criminal Procedure, 1973. Section 24 of the Evidence
Act provides that a confession made by an accused as a result of
inducement, threat or promise is irrelevant in criminal proceedings.
Section 25 of the Evidence Act provides that no confession made to the
Police shall be proved against a person accused of any offence.
Section 26 of the Evidence Act deals with the confessions made by an
accused while in Police custody and it provides that such confession
shall not be proved against accused unless it is made in immediate
presence of a Magistrate. Only exception to the above referred Rules
is Section 27 of the Evidence Act which provides that if as a
consequence of information received from a person accused of any
offence a relevant fact is discovered, only such part of confession
which relates distinctly to the fact thereby discovered may be proved
in the criminal proceedings.
10. From the aforesaid position of law, it is obvious that there is a bar
on admitting an evidence of confession made by an accused to a Police
officer unless it falls within the exception provided under Section 27 of
the Indian Evidence Act. In other words, only that portion of confession
could be taken in evidence which has led to discovery of some relevant
fact which was already not within the knowledge of investigating
agency. In our considered view, the information furnished by the
accused Shahid Mian to the Duty Officer, which form basis of
registration of FIR, amounts to a confession made to a Police officer
thus it is inadmissible in evidence in view of the bar provided by
Section 25 of the Indian Evidence Act. (Reference be made to
Judgment of Hon'ble Supreme Court in the matter of Aghnoo Nagesia
Vs. State of Bihar, 1966 Criminal Law Journal, 100(Volume 72)).
However, as per evidence on record pursuant to the aforesaid
confession made by the accused Shahid Mian, dead bodies of Sajida
Begum, Sikandar Ali, Shahid Ali and Sartaj Mian were respectively
recovered from Houses No.B-463, Camp No.2, Nangloi and A-616,
Camp No.2, Nangloi. Since the information furnished by the accused
has led to the discovery of dead bodies from the house numbers
mentioned by him in his statement, that part falls within the exception
provided under Section 27 of the Evidence Act, therefore, it can be
taken into account as a relevant fact.
11. Learned counsel for the State has further argued that pursuant to
the information given by the accused in his statement made to the
Duty Officer, dead bodies of Sajida Begum, Sikandar Ali, Shahid Ali and
Sartaj Mian were discovered from respective houses No.B-463, Camp
No.2, Nangloi and A-616, Camp No.2, Nangloi. That portion of
confessional statement is therefore admissible in evidence in view of
the exception provided under Section 27 of the Evidence Act. He has
argued that, therefore, learned trial court ought to have concluded
that the accused by knowledge of murder of aforesaid persons having
been committed at above referred houses, therefore, it ought to have
been taken as a circumstance against him. He has submitted that said
knowledge on the part of accused Shahid Mian coupled with the fact
that blood stained knife and churri were recovered from his possession
by the Duty Officer, Police Station Nangloi, and that his clothes were
stained with blood provides sufficient circumstantial evidence to bring
home guilt of accused Shahid Mian beyond reasonable doubt. Thus, he
has contended that learned trial court has erred in appreciating the
evidence and rejecting the strong circumstantial evidence against
accused Shahid Mian.
12. It would be seen from the record that accused Shahid Mian has
explained the presence of blood on his clothes and his knowledge
about the murder of his sister Sajida Begum and her sons Sikandar Ali
and Shahid Ali in House No.B-463, Camp No.2, Nangloi in his statement
under Section 313 of the Code of Criminal Procedure. He has
explained that on the fateful night, some unknown assailant came in
the house and murdered his sister and her both sons. He got up on
hearing the noise, but the person who committed the murder of his
sister and nephews ran away. He raised an alarm and started looking
for some vehicle to take them to the hospital. In the process, his
clothes got stained with blood. The Police also came there and took
him to the Police Station. Aforesaid explanation of accused Shahid
Mian appears plausible and it explains his knowledge of presence of
dead bodies in House No.B-463, Camp No.2, Nangloi as also the
presence of blood on his clothes. Thus, in our considered view, the
discovery of dead bodies from House No.B-463, Camp No.2, Nangloi
and presence of blood stains on the clothes of Shahid Mian though it
may raise suspicion against the accused is not sufficient to establish
the guilt of accused Shahid Mian.
13. Once the confessional statement is rejected, only circumstance
with which we are left against accused Shahid Mian is the recovery of a
knife and a churri from the possession of accused Shahid Mian. It
would be seen from the record that knife and churri recovered from the
accused Shahid Mian, blood stained clothes of deceased person along
with the blood stained clothes of accused Shahid Mian and accused
Sagir Khan and blood stained earth etc. picked up from the spot of
murder were sent for serological examination. Perusal of serological
report Ex.PW15/A would reveal that, except the sample earth and
sample unstained cement plaster picked up from the respective spots
of occurrence, all the exhibits did test positive for human blood but
blood groups on the same could not be detected, resulting in failure
to establish that blood group of human blood found on recovered churri
and knife matched with blood group of either of the deceased. Thus, in
our view, the prosecution has also failed to link the knife and the churri
recovered from Shahid Mian with the alleged murders.
14. It may also be pointed out that once the confession of accused
Shahid Mian is held to be inadmissible in evidence, there is no
evidence of motive on the part of the accused Shahid Mian as alleged.
15. In view of the discussion above, we do not find any infirmity in
the Judgment of acquittal recorded by the learned trial court.
16. We do not find any merit in the appeal which is, accordingly,
dismissed.
AJIT BHARIHOKE, J.
JULY 16, 2009 SANJAY KISHAN KAUL, J.
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