Hamid & Another vs State Nct Of Delhi
2013 Latest Caselaw 654 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRIMINAL APPEAL No. 1495/2011

                                          Reserved on:      31st January, 2013
%                                         Date of Decision: 12th February, 2013

HAMID & ANOTHER                        ....Appellants
             Through Mr. Avdhesh Kumar Singh & Mr.
            Jitendra Mani, Advocates.

                           Versus

STATE NCT OF DELHI                            ...Respondent

Through Ms. Richa Kapoor & Mr. Sanjay Lao, APP for the State.

CRIMINAL APPEAL No. 1167/2011

SABIR ....Appellant Through Mr. Sanjay Kumar, Mr. Krishan Kumar and Ms. Parul Sharma, Advocates.

Versus

STATE NCT OF DELHI ...Respondent Through Ms. Richa Kapoor & Mr. Sanjay Lao, APP for the State.

                          CRIMINAL APPEAL No. 1346/2011


FIRDOS & ANR.                                       ....Appellants
                           Through Mr. Avdhesh Kumar Singh & Mr.
                          Jitendra Mani, Advocates.

                           Versus

STATE NCT OF DELHI                                              ...Respondent

Through Ms. Richa Kapoor & Mr. Sanjay Lao, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J.:

The appellants Hamid, his brother Rashid and nephew Sabir by

the impugned judgment dated 3rd September, 2011 have been convicted

under Sections 302/363/201/34 of the Indian Penal Code, 1860 (IPC,

for short) and the appellants Firdos, mother of Hamid and Rashid and

Vakila, wife of Rashid have been convicted under Sections 201/34

IPC. The said judgment acquits the five appellants from the charge

under Section 364A IPC.

2. By the order of sentence dated 6th September, 2011 Hamid,

Rashid and Sabir have all been sentenced to imprisonment for life and

fine of Rs.5,000/- each and in default of payment of fine, they have to

undergo Simple Imprisonment for six months under Section 302/34

IPC. These three appellants have been sentenced to Rigorous

Imprisonment for three years and fine of Rs.3,000/-each and in default

of payment of fine, Simple Imprisonment of three months under

Sections 363/34 IPC. The five appellants have been sentenced to

Rigorous Imprisonment for three years and fine of Rs.3,000/- each for

offence under Section 201/34 IPC, in default of payment of fine, they

have to undergo Simple Imprisonment of three months.

3. The prosecution case in brief is that on 2nd March, 2007 at about

3.30 P.M. Kasim Alam @ Rahil, son of Kadir Alam, aged about ten

years went missing. At that time, he was wearing jeans pant, a blue

coloured T-shirt, red colour jacket and black leather shoes. Missing

report in form of DD No. 21A (Ex. PW-9/B) was recorded which does

not name any suspect. After investigation, on 9th March, 2007, Hamid

was apprehended and on interrogation he made a disclosure statement.

Thereafter, on 10th March, 2007 appellants-Rashid and Firdos were

arrested from Pooja Colony, Loni, Uttar Pradesh and at their instance

dead body of Kasim Alam @ Rahil was recovered, from the nala

between Bhagirathi Vihar and Ganga Vihar, where it was stuffed in a

gunny bag with bhussa and other waste papers and thrown off in the

nala. On 26th March, 2007 Sabir was arrested near Kabutar Market,

Welcome Colony, Delhi and on 26th April, 2007 Vakila was arrested

from Chand Bagh Pulkia near Gokul Puri, Delhi.

4. There are no eye witnesses to the incident and the prosecution

case is premised upon circumstantial evidence.

5. The factum that the boy Kasim Alam @ Rahil had died an

unnatural death after he had suffered stabbed wounds is an undisputed

position. The Post-Mortem Report stands proved by Dr. Arvind

Kumar (PW-21). Erroneously, the exhibit number (Exhibit PW-21/A)

has not been marked on the post-mortem report. The Court Master has

been directed to record exhibit number on the post mortem report. The

said post-mortem was conducted by Dr. Barkha Gupta, Senior

Resident, who has since left the hospital, i.e., UCMS and GTB

Hospital, Shahdara, Delhi. PW-21 has identified her handwriting and

signatures. As per the post-mortem report, the deceased had external

injuries in the form of four lacerated wounds and the cause of death

was identified as shock due to ante-mortem head injury caused by

penetrating blunt edged weapon. Each of the four injuries was caused

by penetrating blunt edged weapon and were independently sufficient

to cause death in ordinary course of nature. The injuries were of recent

origin. The post-mortem was conducted on 11th March, 2007 between

12.20 - 1.20 P.M. and records that all clothes were intact, wet and

dirty. Straw was present on clothes. The body was bloated up and had

undergone a change due to decomposition. The face was distended,

eyes were bulging out, mouth was open and scrotum was distended.

There was sero sangenous discharge oozing from the mouth and

nostrils. There was greenish discolouration of body at certain places,

skin had peeled at few places, scalp hair was lying loose, teeth were

also loose and Rigor Mortis had passed away. Maggots were crawling

all over the body and clothes. The report further records that intestine

was full of gases and the walls were soft. In the stomach 50 ml of

liquid was present and the walls were soft. The time of death, as

opined in the said report was about one week, which would date back

to 5th March, 2007.

6. As noticed above, appellant-Hamid was the first one to be

arrested on 9th March, 2007 and the arrest memo (Ex. PW-9/C) records

the time of arrest as 9.00 P.M. On the same day itself, the following

disclosure statement (Exhibit PW-9/E) as per the prosecution version

was recorded:-

―He had been working in the factory of

Braham Puri, Delhi. Kadir Alam was a rich person due to that he made a plan to kidnap Kasim Alam @ Rahil s/o Kadir Alam and to demand Rs.5 lacs from him as ransom.

On 02.03.07 in pursuant to said plan he took Rahil on the pretext of playing with him at about 3.30 P.M. to his house. When he reached at his house, mother Firdos was present and she confined Rahil in a room and after some time Rahil (Apne Ghar jane Ki Zid Kerne Lega to maine usko thapper mark ker chup rehne ko khea lekin veh rone lega) then he thought in case Rahil would be left then he (Rahil) would disclosed all the facts to his father therefore, due to this apprehension he pressed the mouth and neck of Rahil and killed him. He further disclosed that when he was keeping his dead body under the

bed lying in the room in the meantime his mother reached there and insisted him to go back to the factory and thereafter he returned to his factory and started searching Rahil with Kadir Alam. He further disclosed that at about 7.30 P.M. he again reached at his house to remove the dead body of Rahil, on reaching there his mother Firdos, Rashid and Vakila (Dekhte hi keha ki tune bache ko mar ker theek nahi kiya jo meri galti manne per teeno ne kaha kit u wapis karkhane chala ja aur hum teeno Rahil ki lash ko thikane laga denge.) Thereafter again he started searching Rahil and at about 2 a.m. when he again returned to his house, his mother, his brother and his Bhabhi told him that they all had thrown the dead body of Rahil while keeping in a gunny bag at Gokal Puri Nala near Tripal Factory Indra Vihar. He also disclosed that on 8/3/07 he also disclosed all these facts to one Nadeem that he had killed Rahil. He can get the place identified and also can get arrested his mother, his brother and his Bhabhi and also can get recovered the dead body of Rahil.‖

7. The disclosure statement is inadmissible, except to the extent

stated and stipulated in Section 27 of the Evidence Act. As per the

police version, the dead body of Kasim Alam @ Rahil was not

recovered pursuant to the aforesaid disclosure by appellant-Hamid.

Father of Kasim Alam, who had appeared as PW-9 in his examination-

in-chief in the court had stated that the disclosure statement (Exhibit

PW-9/E) was recorded and he was taken by the police officers near the

nala but due to night time dead body of his son could not be recovered.

The location of the dead body, as identified in (Exhibit PW-9/E) was

Gokul Puri nala near Tripal Factory, Indra Vihar. This was not the

place, as per the police witnesses, from where the dead body of Kasim

Alam was recovered.

8. Prosecution relies upon the disclosure statements made by

appellants-Rashid and Firdos marked (Ex.PW-16/C) and (Ex. PW-

16/F) for recovery of the body of Kasim from the place in question i.e.

ganda nala Bhagirathi Vihar near Brahm Puri Pullia, Gokul Puri, Delhi.

The place of recovery of the dead body is not the same place as

mentioned in the disclosure statement of appellant-Hamid dated 9th

March, 2007 (Ex.PW 9/E).

9. The disclosure statement quoted above records that appellant-

Hamid did not have personal knowledge but the information given by

him to the police was on the basis of what had been told to him by his

mother, brother and bhabhi, i.e., Rashid, Firdos and Vakila. Thus, the

place was known and in knowledge of the appellant Hamid because

third persons had so informed him.

10. Other circumstantial evidence relied by the prosecution against

the appellant Hamid is the allegation of last seen and extra judicial

confession. Rizwan Ulhaq (PW-3) has deposed that Kadir Alam was

his friend and on 2nd March, 2007 at about 4.00 to 4.30 P.M. he had

seen appellant-Hamid taking away Kasim @ Rahil son of Kadir Alam

with him at gali No. 20, Braham Puri towards pullia. Next day he

came to know that Kasim Alam was missing and he informed Kadir

Alam on telephone that he had seen Kasim Alam with the appellant-

Hamid. On 4th March, 2007, he had gone to the Police Station and his

statement was recorded. He deposed that on 2nd March, 2007 no one

was present with Hamid and Kasim Alam. He was declared hostile

and cross-examined by the Public Prosecutor and questions were put to

him about presence of appellant-Sabir with Hamid when he had

purportedly seen Hamid taking away Kasim Alam with him. He

denied the said suggestion given by the Public Prosecutor. In the

cross-examination PW-3 admitted that he had known Kadir Alam for

last 12-13 years and they were in the same business. Prior to 2 nd

March, 2007, he had never seen Hamid with Kasim and on 3rd March,

2007 he had informed Kadir Alam on telephone at 9 to 10 A.M. that he

had seen both of them together. On 2nd March, 2007, he had not

enquired from Hamid or Kasim where they were going. He further

testified that on 4th March, 2007 he along with Kadir Alam and one or

two other persons had gone out to search for Kasim and they had also

gone to the police station. He has stated that he had filed the written

complaint with the police on 4th March, 2007 which bears his

signatures and the signatures of Kadir Alam but the said ―complaint‖

has not been brought on record. The first investigating officer SI

Pramod (PW-18) has stated that on 3rd March, 2007 Kadir Alam had

come to the police station and on his statement Exhibit PW-9/A

(rukka) was prepared and FIR was registered. He had recorded

statement of witnesses on 4th March, 2007 and 8th March, 2007 and

thereafter on 9th March, 2007 appellant-Hamid was apprehended and

his disclosure statement Exhibit PW-9/E was recorded. In his

deposition in the Court PW-18 does not talk of attempt to locate,

interrogate and detain the appellant-Hamid between 4th March, 2007

till 9th March, 2007. He has not deposed that the appellant-Hamid was

absconding or efforts were made but he could not be located as he was

hiding or had given replies which required verification. PW-18 is

completely silent on this. This creates doubts or suspicion whether

PW-3 had made any statement or informed Kadir Alam that he had

seen Kasim with appellant-Hamid on 2nd March, 2007 and had made

statements either on 3rd March, 2007 or on 4th March, 2007. In case

PW-3 had made any such statement and informed Kadir Alam, they

too would have certainly tried to get in touch with Hamid on the same

day, i.e., 3rd March, 2007 or thereafter, if the police was not talking

steps to interrogate or talk to him. Nothing of the sort is deposed by

both PW-3 and PW-9. Kadir Alam (PW-9) in his testimony states that

PW-3 on 3rd March, 2007 at about 9-10 P.M. had spoken to him on

telephone and had stated that he had seen his son with appellant-Hamid

and another person whom he can identify. However, the said averment

remains extremely doubtful and debatable in view of the conduct of

PW-3 and 9 and the silence of the investigating officer SI Pramod

(PW-18). It is also not believable that appellant-Hamid, who was

known to both PW-3 and PW-9 not would have been interrogated or

questioned in case PW-3 had informed PW-9 that he had seen his

missing son with him. This makes the testimony of PW-3 and 9 on the

evidence of the last seen debatable and unreliable. We are, therefore,

not inclined to accept the statement of PW-3 that he had seen Kasim

with appellant-Hamid. At this stage, we also record that PW-3 did not

recognize the appellant-Sabir as a person, who was allegedly with

appellant-Hamid and Kasim. His testimony completely exonerates and

exculpates Sabir and his presence. Interestingly, in PW-3's Section 161

Cr.P.C. statement refers to the FIR No. 76/2007 and in the heading

mentions Sections 363/364/302/201/120B IPC. This statement has

been purportedly made on 4th March, 2007, that is 5 days before the

arrest of any of the appellants and 6 days before recovery of the dead

body of Kasim on 10th March, 2004. It is the prosecution case that it

was after recovery of the dead body that Section 302/364A/201/120B

were added prior to which only Sections 363/364 IPC were there. SI

Pramod (PW-18), in his court statement has stated that on 9th March

2004 Section 302/364A/201/120B IPC were added in the FIR and the

investigation was transferred to Inspector K.L. Sharma (PW-19). PW-

19 has averred that on 10th March 2007 (sic 2004) he took investigation

on this case after addition of sections 302/364A/201/120B IPC. This

casts a grave doubt regarding the exact date on which PW-3's

statement was actually recorded. It could be after the body was found

and, in turn, in these circumstances we are inclined to disbelieve and

disregard the statement of PW-3.

11. The prosecution relies upon statement of Nadeem (PW-2) to

prove extra judicial confession. Nadeem (PW-2) has stated that he was

working with Kadir Alam and on 8th day of 2007 (month he did not

remember) Hamid had met him in Gali No. 20 at 10 A.M. Hamid was

perplexed and on being questioned told him that he had kidnapped son

of Kadir Alam and murdered him. He has averred that he had

kidnapped Kasim Alam for money. Thereafter, he went to the factory

of Kadir Alam, informed him about the conversation between him and

Hamid. The testimony of PW-2 shows that the appellant-Hamid had

not absconded and was available in Delhi. Hamid as per PW-2 had

met him on 8th March, 2007. There is no evidence to show that PW-2

was close and good friend of the appellant-Hamid. It is difficult

to accept that appellant-Hamid would have confided and made a

confession to PW-2 regarding kidnapping and thereafter committing

murder of Kasim by strangulation. Further, as noticed, the post-

mortem report does not show that Kasim had died because of

strangulation. As per the post-mortem report, there were four lacerated

wounds which had led to his death. PW-2 in his cross-examination

admitted that he had assisted Kadir Alam in trying to trace out Kasim

on 4th, 5th and 6th March, 2007 in the locality. They had made

announcement (Elan) along with other workmen and had gone around

searching for Kasim. Thus, PW-2 it is apparent was very close and a

good friend of PW-9.

12. The prosecution also relies upon CFSL report (Ex. PX) as per

which blood stains were detected on stone and mattress and human

blood was detected on one wooden piece. The blood stains on the

stone and the mattress had degraded and blood stains on the wooden

piece could be detected to be human but blood group could not be

ascertained. The prosecution case is that a mattress, stone which was

part of the flooring, and the wooden piece of a part of the bed, were

seized by the police after the disclosure statements made by the

appellants; Hamid, Rashid and Firdaus. The seizure was from their

residence i.e. Jhuggi No. E-16/B 147, Jhuggi Seelam, Pur. The alleged

seizure was made by seizure memo (Ex. PW18/G) purportedly dated

12th March, 2007. The memo records that appellant Rashid and

Firdaus were present with the police team when the crime team was

called to the spot i.e. Jhuggi No. E-16/B, 147 Jhuggi Seelam Pur. The

appellants have submitted that the so-called seizure and recovery is in

fact planted and it is unbelievable that almost ten days after the crime,

blood stains or blood would have remained on the stone, mattress or

the part of the wooden piece. It is also high-lighted that the blood

group could not be ascertained. The said seizure memo was prepared

by Insp. K.L. Sharma (PW-19) who took over the investigation of the

case on 10th March, 2007, after addition of Sections

302/364A/201/120B IPC. Before 10th March, 2007, the investigation

was entrusted to S.I. Pramod (PW18). S.I. Pramod (PW18) in his

deposition in chief has stated that he had interrogated Hamid

thoroughly and recorded his disclosure statement (Ex. PW9/E).

Thereafter, Hamid took the police to his jhuggi and pointed out the

spot where he and the co-accused had murdered the deceased.

Thereafter, site plan (Ex. PW18/B) was prepared. Thus, the police

team had visited the jhuggi and inspected the crime spot on 9th March,

2007. At that time, blood/blood stain was not noticed on the stone and

no blood was noticed on the wooden bed and the mattress. It is

difficult to accept and believe that three days thereafter, the

blood/blood stains were noticed by (PW-19) Insp. K.L. Sharma as well

as (PW-18) S.I. Pramod who was also a part of the team. The

recovery memo and the CFSL Report, therefore, become extremely

doubtful and cannot be used as an incriminating material against the

appellants.

13. Against Sabir, we do not have any material or evidence. The

prosecution had relied upon the alleged identification as recorded by

them in the statement by Rizwan Ulhaq (PW-3) under Section 161

Cr.P.C, but noticed in the court testimony that the said witness refused

to accept this version and has stated that he had not seen Sabir. His

testimony on last seen even otherwise is disbelieved. The prosecution

has also relied upon the statement of Riyaz, who appeared as PW-4 and

had a STD booth in Kabutar Market, Welcome, near Khajoor Wali

Masjid, Delhi. He has stated that last year, the date and month he did

not remember, at about 10.30 PM, a boy under influence of liquor had

come to his STD booth to make a call. At that time another boy of fair

complexion had made a call and talked for 60-90 seconds. The next

day, in the morning, he received a call from police officials, P.S. New

Usman Pur, and was informed that somebody had used his STD booth

for making a ransom call. A boy in the police vehicle was shown to

him and police obtained his signatures when the said boy confessed

having made a call from his booth. He could not identify the person

who had made the call from his booth and had been shown to him by

the police officials. PW-4 was cross-examined by the public

prosecutor, but stated that he did not know Sabir Ali and he could not

say if Sabir Ali, who was present in court, had made the call from his

STD booth or was brought to his booth by the police on 26.3.2007. On

the other hand, he pointed out towards appellant Rashid and stated that

the police officials brought him to his booth in hand cuffs. He denied

the suggestion that Sabir had made a call from his booth on 9 th March,

2007 or on 26th March, 2007 and that he had identified the said person.

Rashid was already in judicial custody on 26.3.2007, and therefore he

could not have been shown to the said witness.

14. We now examine the case made out and proved by the

prosecution against the appellant Rashid, Firdaus and Vakila. Rashid

was arrested vide arrest memo (Ex. PW16/A) on 10th March, 2007 at

4.15 PM. After his arrest, it is alleged that he had made a disclosure

statement Ex. PW16/C. The appellant Firdaus was also arrested on

10th March, 2007, after 45 minutes of the previous arrest, at 5.00 PM

vide arrest memo Ex. PW16/D and thereafter had made/ a disclosure

statement Ex. PW16/F. It is stated that thereafter the appellant Rashid

and Firdaus took the police team to Ganda Nala, Bhagirath Vihar near

Brij Puri Pullia, and from where the gunny bag with the dead body of

Kasim, was recovered. The crime team report Ex. PW-17/A records

that the crime team was present at the said spot on 10 th March, 2007

between 6.15 to 7.30 PM. (PW-18) S.I. Pramod has stated that after

interrogation and disclosure statement by Rashid and Firdaus, the

accused persons took the police team to the drain between E Block

Bhagirath Vihar and G Block Ganga Vihar and pointed out the place

where a gunny bag was lying and told them that the dead body of the

child was inside the gunny bag. When the gunny bag was opened, it

was discovered that it had the dead body of a child who was

subsequently identified by Kadir Alam as his son Kasim Alam @

Rahil. The crime team reached the spot and took photographs. PW19,

Insp. K.L. Sharma has also deposed on similar lines. He has stated that

it was on pointing out of Rashid and Firdaus that the gunny bag was

found in the drain between E Block Bhagirath Vihar and G Block

Ganga Vihar, with dead body of Kasim inside. Thereupon the crime

team was called and photographs were taken by them. Another

disclosure statements were made by Hamid, Rashid and Firdaus

(Ex.PW18/D to PW18/F) respectively. Subsequently, Rashid and

Firdaus took police team to their jhuggi and got recovered one

polythene bag in which pant, shoes of the deceased and weapon of

offence i.e. screw driver. Kadir Alam identified shoes and pant

belongs to his deceased son. These articles were seized vide seizure

memo PW9/H, it is dated 12th March, 2007. Interestingly, the post

mortem report Ex. PW21/A records that clothes worn by the child

namely denim jeans and jacket with read belt, T-shirt, white baniyan

and pair of blue socks were intact, wet and dirty. As per the post

mortem report, therefore, the child was wearing blue jeans at the time

of recovery of the dead body. The subsequent recovery of the pant

again on 12th March, 2007 cannot be explained. This naturally creates

grave suspicion about the so called recovery made vide seizure memo

Ex. PW9/H. Two photographs taken by the crime team Ex. PW2/A and

PW2/2 do not indicate that till the crime team had reached the spot, the

gunny bag was opened. The photographs indicate that the gunny bag

was opened after the crime team had reached the spot.

15. The death report form against the column at No. 10 ―Injuries or

marks of violence of the body may have received. Wounds and

bruises--Show position, length and breadth‖, is blank and the column

has not been filled up. Against column No. 12 - ―In what manner or

by what weapon or instrument such marks of injuries of violence

appear to have been committed‖, it is recorded ―seems due to

strangulation‖. It is surprising that the police officers did not notice the

injuries on the body of the deceased [email protected] Rahil when they opened

the bag.

16. Thereafter, the post mortem was conducted on 11th March, 2007,

between 12.20 to 1.20 PM and the opinion of the doctor with regard to

injuries for lacerated wounds was known. Thereupon, it is apparent

that PW-19 Insp. K.L. Sharma again recorded the disclosure statement

on 11th March, 2007 of the appellants, Hamid, Rashi and Firdaus, Ex.

PW18E to 18/F and alleged on 12th March, 2007, the aforesaid

recoveries were made and articles seized vide seizure memo Ex.

PW9/H.

17. The prosecution also relies upon statement of Rahisuddin, PW-1,

who had deposed that last year, i.e. in 2007, one or two days before

Holi at 8/8.30 PM, Firdaus along wither son Hamid had come to his

house and demanded his rehri (cycle rickshaw). They had taken his

cycle-rickshaw to throw some malba and the same was returned at

1.30/2 AM by Hamid or his brother Rashid. At that time he was

sleeping and did not come out. After 4-5 days, Hamid brought some

police officials and his rehri/cycle rickshaw was seized. Allegation of

the prosecution is that the said cycle rickshaw was used to ferry the

dead body in the gunny bag from jhuggi of the appellant at E-16/B/141

to the drain/ganda nala. No one had seen any of the appellants cycling

or the gunny bag in the rickshaw. PW-1 has stated that the cycle

rickshaw was to be used to ferry malba. As stated above, there is no

evidence or material to show that Kasim was killed in the house i.e.

jhuggi No. E-16/B/141. The recoveries from the house i.e. stone,

wooden piece of the bed and the mattress have been already adversely

commented upon.

18. In view of the aforesaid reasoning, we do not think that there is

evidence or material to establish and prove the prosecution case that

Hamid, Rashid or Sabir had committed murder or Hamid, Vakila or

Sabir had thrown body in the gunny bag in the drain/nala. Prosecution

has not been able to prove the case against them beyond reasonable

doubt.

19. We observe here that against Vakila, who was subsequently arrested on 26th April, 2004, there is no material or evidence whatsoever to suggest her involvement. She cannot be convicted on the basis that she is Rashid's wife and is, therefore, entitled to acquittal.

20. The prosecution case against appellant Rashid and Firdaus is

based on their two disclosure statements and the alleged recovery of

the dead body thereafter on 10th March, 2007. As noticed above,

appellant Rashid was arrested on the said date at 4.15 PM vide arrest

memo Ex. PW16/A and Firdaus was arrested at 5.00 PM vide arrest

memo Ex. PW16/D, soon after the arrest, as per the prosecution

version, Rashid had made disclosure statement Ex. PW16/C and

Firdaus had made disclosure statement Ex. PW16/F. Thus, there were

two disclosure statements. Law of joint disclosure statement was

examined by the Supreme Court in State (NCT of Delhi) v. Navjot

Sandhu (2005) 11 SCC 600 and it was observed as under:-

― 145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs 10 lakhs from the truck in which they were found at Srinagar is in issue. Learned Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording ―a person‖ excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. ―A person accused‖ need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the

inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.

146. In Mohd. Abdul Hafeez v. State of A.P. [(1983) 1 SCC 143 : 1983 SCC (Cri) 139 : AIR 1983 SC 367] the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the IO that the ring (MO-1) was sold to the jeweller, PW 3 in whose possession the ring was. PW 3 deposed that four accused persons whom he identified in court came to his shop and they sold the ring for Rs 325 and some days later, the Police Inspector accompanied by Accused 1, 2 and 3 came to his shop and the said accused asked PW 3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court: (SCC p. 146, para 5) ―Does this evidence make any sense? He says that Accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that Accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person.‖

There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.

147. Another case which needs to be noticed is the case of Ramkishan Mithanlal Sharma v. State of

Bombay [ (1955) 1 SCR 903 : AIR 1955 SC 104 : 1955 Cri LJ 196] . The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokulchand Dwarkadas [ AIR 1948 PC 82 : 49 Cri LJ 261] decided by the Bombay High Court, a passing observation was made that in the said case the High Court had ―rightly held that a joint statement by more than one accused was not contemplated by Section 27‖ (SCR p. 925). We cannot understand this observation as laying down the law that the information almost simultaneously furnished by the two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in the case of Lachman Singh v. State [ 1952 SCR 839 : 1952 Cri LJ 863] this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing joint disclosures.‖ (emphasis supplied)

21. In light of the aforesaid ratio, we feel that the disclosure

statement by appellant Rashid was made earlier in point of time and

the disclosure by appellant Firdaus would have been later in point of

time as they were arrested after a gap of 45 minutes. The place of

arrest of both of them was the same i.e. Pooja Colony, Loni, as

recorded in Ex. PW16/A and PW16/B. Firdaus is the mother and it is

difficult to believe that she would have paddled the cycle rickshaw or

would have gone on the cycle rickshaw at night to drop the dead body

in the drain/nala, which is located at a distance of approximately 5 kms

from their residence. The exact distance between the two places is not

indicated in any of the statements but can be gauged from the Delhi

road map. In these circumstances, we do not accept the prosecution

version and disregard the disclosure statement made by the appellant

Firdaus. Recovery of the dead body on the basis of disclosure

statement made by Rashid is certainly a grave incriminating fact. Till

the disclosure statement, the police as well as family of Kasim was not

aware that Kasim had died and his body had been packed in a gunny

bag and thrown in the drain between E Block Bhagirath Vihar and G

Block Ganga Vihar. However, in the present case, we are not inclined

to, on this basis alone, convict the appellant Rashid for having

committed murder of Kasim. The reason is that in the present case, the

prosecution itself suspects involvement of third persons including

Sabir. There is no other incriminating fact or material against the

appellant Rashid to show and establish that he had committed murder

of Kasim. The possibility that a third person may have committed the

same and then Rashid had gone and dispose of the dead body cannot be

ruled out in view of the prosecution case itself. In cases of

circumstantial evidence, the evidence and material on record, should

rule out the possibility of a third person committing the offence with

which the accused is charged. The said possibility is not ruled out in

the present case as far as offence under Section 302 IPC is concerned,

with the prosecution itself suspecting involvement of a third person.

However, as far as offence under Section 201 IPC is concerned,

involvement of appellant Rashid is established. He was aware that the

dead body of Kasim had been packed in the gunny bag and thrown to

hide it from third persons so that the said body cannot be recovered or

remains concealed.

22. In these circumstances, Hamid, Sabir, Firdos and Vakila are

acquitted. Rashid is convicted under Section 201 IPC but is acquitted

of the charge under offence 302/34 and 363/34 IPC. Sentence of

Rashid under 201 IPC is maintained. We note that Rashid, Firdos,

Vakila and Sabir were released on bail, vide order dated 12 th

December, 2011, pursuant to suspension of their sentence. Rashid has

undergone sentence imposed under Section 201 IPC and therefore need

not be re-arrested. Hamid will be released forthwith, unless required to

be detained, in accordance with law, in any other case. The appeals are

disposed of.

(SANJIV KHANNA) JUDGE

(SIDDHARTH MRIDUL) JUDGE FEBRUARY 12, 2013 VKR/NA