Section 148 Two Years Rigorous vs Unknown
2021 Latest Caselaw 2164 UK

                                                               Reserved Judgment

             IN THE HIGH COURT OF UTTARAKHAND
                                    AT NAINITAL
         THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

                                          AND

                     THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                  CRIMINAL APPEAL NO.37 OF 2013
                                                              Reserved on: 15.06.2021
                                                             Delivered on: 01.07.2021


BETWEEN:

Nafees & another                                                   .....Appellants.
And
State of Uttarakhand                                                ....Respondent.

Counsel for the Appellants : Mr. S.P.S. Panwar, learned Senior Counsel assisted by Mr. H.C. Pathak.

Counsel for the respondent : Mr. Amit Bhatt, learned Deputy Advocate General for the State.

                                            :       Mr. Ambrish Kumar, learned counsel
                                                    for the complainant.


The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The appellants have challenged the legality of the

judgment dated 07.02.2013, passed by the IInd Additional

District & Sessions Judge, Haridwar, District Haridwar,

whereby the learned Trial Court has convicted and sentenced

the appellants for offences as under:-

S. No.           Section                        Sentence                         Fine

   1.      Section           148 Two            years        Rigorous                 -

           IPC                   Imprisonment

   2.      Section           302 Life imprisonment                          Rs.5,000/-


           read with 149                                           (each)

           IPC

All the sentences were directed to run concurrently.

2. Briefly the facts of the case are that, on

15.08.1996, Mohd. Afzal (P.W.2) lodged a written report

before the Station House Officer, Gangnahar, Roorkee,

District Haridwar, wherein he claimed that "a person

belonging to his community, Mohf. Akram, was coming back

home around 7:45 PM, after having closed his shop at

Roorkee. He was coming back to his village Safarpur. After he

crossed Salempur, near the field of Vedpal, few unknown

persons shot him dead. Mohd. Abbas (P.W.1) and Irshad

(P.W.8) were coming on another scooter. Both these persons

saw the assailants with the help of the light of their scooter.

They can recognize the assailants if the assailants were

shown to them. The incident has occurred at around 8:00 PM.

These two persons came and informed him about the

incident. Therefore, I have come to inform the police".

3. On the basis of this written report (Ex. Ka.1), a

formal FIR, namely, FIR No.138/96, (Ex. Ka.2) was chalked

out for offences under Section 302 IPC, and the investigation

commenced. During the course of investigation, not only the

appellants, Nafees and Saleem, but also the other accused

persons, namely, Islam, Saleem @Raja, Avval @Munavar,

and Abid were arrested by the police. By order dated

26.08.2000, while Nafees and Saleem, S/o Sadiq, Islam and

Saleem @Raja, were charged for offences under Sections

148, 302 read with Section 149 IPC, 120-B IPC, the accused

Abid was charged for offence under Section 302 read 120-B

IPC. During the course of trial, Saleem @Raja died.

Therefore, the trial abated against him. By order dated

07.05.2008, the trial of Islam was separated from the trial of

Nafees, Saleem and Abid.

4. In order to prove its case against these three

accused persons, the prosecution examined eleven witnesses,

and submitted twenty-seven documents. Mr. Darban Singh

Verma was examined as a witness under Section 311 of

Cr.P.C. Moreover, both Alladiya (C.W.1) and Margoob (C.W.2)

were examined as court witnesses. After completion of the

trial, by order dated 07.02.2013, the learned Trial Court

convicted the appellants, Nafees and Saleem, as

aforementioned, while acquitting Abid for offence under

Section 302 read with 120-B IPC. Hence, the present appeal

before this Court.

5. Mr. S.P.S. Panwar, the learned Senior Counsel

appearing for the appellants, has raised the following

contentions before this Court:-

Firstly, Mohd. Afzal (P.W.2), the complainant, is

neither an eye-witness, nor has he named the appellants in

the FIR lodged by him. According to the complainant, Mohd.

Akram was shot by unknown persons. Moreover, although, he

claims that Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8)

had informed him that unknown persons had shot and killed

Mohd. Akram, in the FIR, no description of the assailants was

given by the complainant. Furthermore, even in the

statement given under Section 161 Cr.P.C., neither Mohd.

Abbas (P.W.1), nor Irshad Ahmad (P.W.8) have described the

assailants even briefly.

Secondly, both, Mohd. Abbas (P.W.1) and Irshad

Ahmad (P.W.8) claimed that they had identified the

appellants in the Test Identification Parade ('TIP' for short)

which had taken place at Sub-Jail Roorkee. According to the

prosecution, Nafees and Saleem were arrested on

05.12.1996. They were produced before the Judicial

Magistrate on 06.12.1996, yet the TIP did not take place till

22.02.1997, i.e. after the inordinate delay of two and a half

months after the arrest of the appellants. Furthermore,

neither of the two witnesses claimed that the appellants were

kept ba-pardha (the face covered with the cloth). Therefore,

the link evidence is conspicuously missing.

Thirdly, Mr. Darban Singh Verma, the witness

examined under Section 311 Cr.P.C., in fact, denied the

holding of TIP. Thus, his testimony creates a grave doubt

about the veracity and the validity of the alleged TIP held by

the police and the jail authority.

Fourthly, another piece of evidence relied by the

prosecution is the alleged extra-judicial confession made by

Nafees and Saleem to Tahir Hassan (P.W.3). However, the

extra-judicial confession is also riddled with doubts. For, Tahir

Hassan (P.W.3) was a total stranger to both Nafees and

Saleem. Moreover, Tahir Hassan (P.W.3) has not reproduced

the exact words uttered by the appellants. Furthermore, since

Tahir Hassan (P.W.3) was a stranger, there is no reason

whatsoever for the appellants to go and make an extra-

judicial confession to a total stranger. Further, Tahir Hassan

(P.W.3), in fact, happens to be a relative of the deceased

Mohd. Akram. For, Tahir Hassan's sister was married to

Mohd. Akram's elder brother. Thus, it is highly unlikely that

the appellants would make an extra-judicial confession to a

person who was related to the deceased himself. Moreover,

according to Tahir Hassan (P.W.3), at the time, the alleged

extra-judicial confession was made by the appellants, Alladiya

(C.W.1) was present. Yet, Alladiya (C.W.1) was not produced

as a prosecution witness. In fact, he has been examined by

the Court as a Court Witness, namely, C.W.1. Therefore, the

alleged extra-judicial confession made before Tahir Hassan

(P.W.3) and Alladiya (C.W.1), cannot be relied upon for

convicting the appellants.

In order to buttress his plea with regard to the

evidentiary value and acceptability of extra-judicial

confession, the learned Senior Counsel has relied on the case

of State of Punjab vs. Bhajan Singh & others, [(1975) 4

SCC 472], State of Punjab vs. Gurdeep Singh, [(1999) 7

SCC 714], and Sahadevan & another vs. State of Tamil

Nadu, [(2012) 6 SCC 403].

Fifthly, the learned Trial Court has erred in relying

on the testimonies of Mohd. Abbas (P.W.1), Irshad Ahmad

(P.W.8), and Margoob (C.W.2). The prosecution claims that

Mohd. Abbas (P.W.1) and Irshad Ahmad (P.W.8) were riding

on a scooter which was following the scooter of deceased

Mohd. Akram. Mohd. Abbas (P.W.1) and Irshad Ahmad

(P.W.8) also claim that they saw the assailants in the light of

the scooter and, therefore, they could identify the assailants.

But the said statement is rather unbelievable. For, the

scooter driven by Mohd. Akram, the deceased, and the

scooter driven by Mohd. Abbas (P.W.1) were moving on the

road. All three of the eye-witnesses, namely, Mohd. Abbas

(P.W.1), Irshad Ahmad (P.W.8), and Margoob (C.W.2), would

have the court believe that suddenly five to six assailants

came from the side of the road, they flashed torch light on

Mohd. Akram's face, and shot him dead. It is highly unlikely

that the occurrence which had occurred in the darkness could

have been seen by the alleged witnesses in minute details,

that too, when they are moving on scooters. Thus, Mohd.

Akram (P.W.1), Irshad Ahmad (P.W.8), would not be in a

position to identify the assailants to the extent that they can

identify the assailants in the TIP. Moreover, according to

Margoob (C.W.2), it was dark at the time when the incident

took place and he could not identify any of the assailants.

Therefore, all the three eye-witnesses are unreliable

witnesses.

Sixthly, the testimony of the eye-witnesses is

further belied by the testimony of Dr. Pradeep Kumar

(wrongly shown as P.W.8), who not only carried out the post-

mortem of the deceased, but also proved the Post-Mortem

Report (Ex. Ka. 4). According to Dr. Pradeep Kumar, (wrongly

shown as P.W. 8), the deceased had suffered two firearm

injuries; firstly, above the right nipple; secondly, on the right

thigh above the knee. The second fire armed injury had

damaged the intestine and the abdomen. The direction of the

injury was upwards. The bullet had pierced the intestine and

had injured the right kidney. The direction of the injury

clearly belies the case of the prosecution. For, in case the

deceased was riding a scooter, the direction of the second

injury could not be upwards. Therefore, the medical evidence

falsifies the testimony of the eye-witnesses. Hence, the eye-

witnesses are highly unreliable and untrustworthy witnesses.

Seventhly, the prosecution has failed to establish

the place where the FIR was drafted. According to Mohd.

Afzal (P.W.2), the complainant, the FIR was drafted by him at

his home and carried by him to the police station. However,

according to Mohd. Abbas (P.W.1) the FIR was chalked out at

the place of incident when Mohd. Afzal (P.W.2), Mohd. Abbas

(P.W.1), and Irshad Ahmad (P.W.8) were present at the

scene of the crime. Therefore, the FIR is itself shrouded in

mystery.

Lastly, despite the fact that the prosecution claims

that two shots were fired by two different fire arms, no firm

arm was ever recovered from the appellants during the

course of investigation. Therefore, the prosecution has

miserably failed to prove its case against the appellants

beyond reasonable doubt. Hence, they deserve to be

acquitted by this Court.

6. On the other hand, Mr. Amit Bhatt, the learned

Deputy Advocate General appearing for the State, and Mr.

Ambrish Kumar, the learned counsel for the complainant,

have jointly raised the following counter-arguments:-

Firstly, since the FIR was lodged promptly, and

since the FIR was lodged against unknown persons, there is

no possibility of falsely implicated the appellants. In the FIR,

Mohd. Afzal (P.W.2), the complainant, had clearly stated that

the deceased Mohd. Akram was shot dead by unknown

persons. Subsequently, both the eye-witnesses, Mohd. Abbas

(P.W.1) and Irshad Ahmad (P.W.8) had come to his house,

and informed him that Mohd. Akram was killed by unknown

assailants. However, since they had seen the assailants in the

light of their scooter, they were in a position to identify the

assailants, if the assailants were produced before them.

Secondly, the scene of crime has clearly been

stated by Mohd. Abbas (P.W.1), Irshad Ahmad (P.W.8), and

Margoob (C.W.2). In their testimonies, the three witnesses

have clearly stated that the assailants came from the

westerly direction from the sugarcane farm belonging to

Vedpal. Having killed Mohd. Akram, the assailants ran away

by entering the rice farm on the eastern side. Therefore, even

the scene of crime has clearly been identified by these three

eye-witnesses.

Thirdly, although the TIP was held after two and a

half months of the arrest of the appellants, the prosecution

has clearly given the reasons for the delay in holding the TIP.

According to the prosecution witness, initially, the case was

investigated by the police. However, on 14.01.1997, the

investigation was transferred to CBCID. Immediately,

thereafter, the TIP was held on 22.02.1997. Moreover, the

entire TIP was carefully carried out by following the procedure

established by law. The TIP memo has been proven by Mohd.

Abbas (P.W.1), Irshad Ahmad (P.W.8), and by Ghanshyam

Singh (wrongly shown as P.W.9 & 10). Ghanshyam Singh

(wrongly shown as P.W.9 & 10) has identified the signature of

Mr. Darban Singh Verma, the Executive Magistrate, who had

carried out the TIP.

Fourthly, the extra-judicial confession made by

Nafees and Saleem to Tahir Hassan (P.W.3) is certainly a

reliable piece of evidence. For, according to Tahir Hassan

(P.W.3), both Nafees and Saleem were well-aware of the fact

that Tahir Hassan (P.W.3) has resolved many of the problems

of the people with the police. Moreover, Tahir Hassan (P.W.3)

was well-known to Saleem, as Saleem's brother used to run a

crusher in Tahir Hassan's village; Saleem would often come

to the village. Since both the appellants had bonafide believe

that Tahir Hassan (P.W.3) could use his connection with the

police, and since Tahir Hassan was a relative of the deceased,

he could bring about the compromise between the families. It

is with this belief that both Nafees and Saleem made the

confession to Tahir Hassan (P.W.3). Moreover, the extra-

judicial confession made to Tahir Hassan (P.W.3) was also

corroborated by the testimony of Alladiya (C.W.1).

Furthermore, both Nafees and Saleem have been identified

by the twin eye-witnesses, Mohd. Abbas (P.W.1) and Irshad

Ahmad (P.W.8). Therefore, the extra-judicial confession is

corroborated by the testimony of these witnesses.

Lastly, even if no firearm has been recovered from

the appellants, it is not fatal to the prosecution. For, the

prosecution case against the appellant is not that it is they

who fired the shot. Instead, the case of the prosecution is

that the appellants were present in an unlawful assembly

which had caused the death of the deceased. Therefore, the

learned Trial Court is well justified in convicting the appellants

for offence under Section 302 read with 149 IPC. Hence, the

learned counsel have supported the impugned judgment.

7. Heard the learned counsel for the parties, perused

the impugned judgment, and examined the record of the

case.

8. It is, indeed, tried to state that a case based on

direct evidence has to be proven beyond the shadow of

doubt. In case, the prosecution were to present evidence like

pieces of jigsaw puzzle, and if the pieces do not fit neatly

together, the benefit of doubt perforce has to be given to the

accused. Therefore, it is the duty of the prosecution, in a case

based on direct evidence, to establish each piece of evidence

by cogent and convincing evidence, oral or documentary.

However, if there are infirmities in the case of the

prosecution, and the prosecution's case is devoid of the ring

of truth, the prosecution case should not be accepted by the

Court. These principles would have to be kept in mind while

assessing the evidence produced by the prosecution.

9. According to the testimony of Mohd. Afzal (P.W.2),

"on 15.08.1996, Mohd. Abbas (P.W.1) and Irshad Ahmad

(P.W.8) had come to his house. They informed him that

around quarter to eight, after leaving Salempur, near the

farm of Vedpal, few unknown persons have killed Mohd.

Akram by shooting him. They further claimed that they had

seen the assailants running away in the light of their scooter.

They further claimed that they could recognize them if they

were produced before them. According to them, the

occurrence had occurred at around 8:00 PM. It is on the basis

of their information that I had written a report (the

complaint) (Ex. Ka.1)".

10. In his cross-examination, he claimed that "he had

written the complaint at his house in his own handwriting. He

further claims that he along with Mohd. Abbas (P.W.1) and

Irshad Ahmad (P.W.8) had visited the scene of the crime.

They found that dead body of Mohd. Akram was lying near

the farm of Vedpal. The dead body was lying on the patri".

His statement that he was informed by Mohd. Abbas (P.W.1)

and Irshad Ahmad (P.W.8), is also corroborated by the

testimony of these two witnesses, namely, Mohd. Abbas

(P.W.1) and Irshad Ahmad (P.W.8).

11. Mohd. Abbas (P.W.1) informs the Court that "the

incident occurred on 15.08.1996 around 8:00 PM. I along

with Irshad (P.W.8) are going to our village from Roorkee.

Ahead of us, Mohd. Akram and Margoob were going on a

scooter. The scooter was driven by Mohd. Akram, the

deceased. When we went beyond Salempur village and

reached near the field belonging to Vedpal, five to six

unknown persons came from the westerly direction from the

sugarcane farm. They flashed the torch light on Akram's face

and shot him. The moment he was shot, he fell. The scooter

also fell down. They picked Akram and dragged him to the

side of the road. There, they again shot him. Having killed,

they ran away through the rice field. Those who had shot

Akram, I had seen in the light of my scooter. Therefore, I can

identify them. We went to the village and informed Afzal

about the incident. Then, we and Afzal came back and

reported the matter to the police. Akram died on the spot.

The dead body of Akram was sealed on the next day. The

panchayatnama was prepared at the scene of the crime".

He further identified his signatures on the panchayatnama.

He further claimed that the TIP was held in the Sub-Jail

Roorkee. He claimed that the three of the accused persons

were put up in the TIP at the Sub-Jail Roorkee and Saleem

@Raja was put up for TIP at the Muzaffarnagar Jail. He

identified all the four accused persons in the Court. He further

claimed that those whom he has identified, he had not seen

after the date of the incident till the date of the TIP. He

claimed that he had signed the TIP memo. He identified his

signatures thereupon.

12. In his cross-examination, he denied the fact that he

had told the CB-CID that "he had heard the noise of shots

being fired from 100-150 meters away". He further claimed

that unknown persons had flashed torch light five to seven

feet away from the scooter being driven by Akram. He further

claimed that when the torch light was flashed, Akram's

scooter stopped but Akram did not get off from the scooter.

According to him, the torch light was flashed and shots were

fired simultaneously. He further claimed that the first shot hit

Akram at his right thigh, while he was sitting on the scooter.

After he fell down, he was shot again. According to him, he

was shot on the road itself. There was blood all over the road.

But according to this witness, he did not try to help Akram. In

fact, finding him to be dead, he left the body. They went to

the village to call the villagers.

13. Moreover, in his cross-examination, he claimed that

in order to identify the appellants, he had gone straight to the

jail. Irshad Hassan (P.W.8) was also with him. The TIP was

held separately for both, him and Irshad. He further claimed

that he was asked to sign the memo at one place, but he did

not remember whether the memo was filled-up or blank,

when he signed the memo. He further claimed that his

signatures were taken even before he was asked to identify

the accused persons. He further claimed that he cannot tell

whether the memo was filled-up just on the one side or both

the sides, and whether his signatures were taken on the one

side or both the sides of the memo? He further claimed that

he had identified the appellants on the basis of his having

seen them at the scene of the crime. According to him, the

TIP was held three months after the incident.

14. Irshad Hassan (P.W.8), informed the Court that

"the incident had occurred on 15.08.1996. According to him,

the occurrence had occurred between 7:45 PM to 8:15 PM. He

further claimed that he saw that Akram was riding the scooter

in front of them. Five to six persons came from the western

side and shot at Akram. He heard two fire gunshots.

According to him, Akram has suffered two firearm injuries.

Both injuries were on the right hand side. One injury was on

the right side of his leg, and the second injury was on his

shoulder. Due to the injuries, Akram fell on the road. He

further claimed that they informed Mohd. Afzal (P.W.2). He

further claimed that on the next morning, he was present

when the inquest report was prepared. According to him, he

signed the inquest report. He further claimed that five to six

months after the incident, he had identified three accused

persons, namely, Nafees, Islam and Saleem in the TIP.

According to him, Abid is a resident of Rasulpul village. Since

Akram was politically involved and adversely affected in the

interest of Abid, there was animosity that developed between

Abid and Akram, and it is due to this animosity a conspiracy

hatched and the murder was committed".

15. In his cross-examination, he admitted that "his

statement was recorded by the Investigating Officer after five

to six months of the incident. He again reiterated that there

was a political rivalry between Abid and Akram. According to

him, he never told anyone about such political rivalry

between the two, as he was frightened". Furthermore, in his

cross-examination, he admitted that "he had not seen the

accused persons prior to the incident. Moreover, he had not

seen the accused persons prior to the TIP. He had seen them

only at the place of the crime, the place where the offence

had occurred. He claimed that he was asked to sign the blank

piece of paper. Furthermore, in his cross-examination, he

claims that his scooter was ten to twelve feet behind the

scooter of the deceased".

16. Margoob (C.W.2) was not produced by the

prosecution. He has been examined only as a Court Witness.

Since it was claimed that Margoob was a person of unsound

mind, the learned Trial Court had initially posed a series of

questions to this witness. Having asked him the series of

questions, the learned Trial Court had concluded that he is in

a position to understand the questions, and to answer them

in a rational manner. His testimony was recorded about

sixteen to seventeen years after the incident. In his

examination-in-chief, he informed the Court that "he was on

the scooter with Akram. Akram was driving the scooter. He

further claimed that he is related to Akram. According to him,

it was slightly dark and it was slightly raining. According to

him, since they turned on the road, five to six men who were

standing flashed torch light on Akram. They fired from the

rifles. According to him, he could not identify any of the

assailants. Moreover, according to him, he was fifteen to

sixteen years old when the occurrence had taken place. Even,

in his examination-in-chief, he admitted that he is under

psychiatric treatment. When his brain does not work, he does

not remember anything. He claimed that his mental problem

started after the date of the incident. He declined to identify

the accused persons in the Court".

17. In his cross-examination, he admitted that he has

been undergoing psychiatric treatment for the last five to six

months prior the date of deposition in the Court. He also

claimed that he has been working for the last five to six

years. Earlier he used to work as a scooter mechanic.

Therefore, he switched his job. He also admitted that at the

time of the incident it was dark. Nothing could be seen. It is

for this reason he could not identify the assailants.

18. A bare perusal of the testimonies of these three

eye-witnesses, namely Mohd. Abbas (P.W.1), Irshand Ahmad

(P.W.8) and Margoob (C.W.2), clearly reveal that, according

to them, all of them were riding on two different scooters.

While Margoob (C.W.2) was the pillion rider on the scooter

driven by Mohd. Akram, the deceased, Mohd. Abbas (P.W.1)

sand Irshad Ahmad (P.W.8), also followed Akram's scooter.

According to Margoob (C.W.2), at the time of the incident,

there was so much of darkness that none of the assailants

could be identified by him. Yet, Mohd. Abbas (P.W.1) and

Irshad Ahmad (P.W.8) would have the court believe that

although they were driving scooter, in the light of their

scooter, they could identify the appellants. The memory

seems to be so sharp as to identify the assailants in a TIP

held two and a half months after the date of the arrest of the

appellants? It is rather unbelievable that Mohd. Abbas

(P.W.1) and Irshad Ahmad (P.W.8) could capture the facial

features of the appellants, although, they had seen the

appellants at the scene of the crime with the help of the light

of scooter. Moreover, according to Mohd. Abbas (P.W.1), he

had seen them running away from the scene of the crime.

Thus, the memory of both of these eye-witnesses appears to

be highly unusual, if not, almost miraculous.

19. The prosecution and the learned Trial Court have

heavily relied on the TIP held by the CB-CID. Although, the

TIP was held after two and a half months, the prosecution has

given the valid reasons for the inordinate delay in holding the

TIP. According to the prosecution, the appellants were

arrested on 05.12.1996, the case was transferred to the CB-

CID on 14.01.1997, and only, thereafter, on 22.02.1997, the

TIP was held. However, much as the prosecution would rely

on the veracity and validity of the TIP, the TIP is shrouded in

mystery. Firstly, both Mohd. Abbas (P.W.1) and Irshad

Ahmad (P.W.8) claimed that they were asked to sign the

blank memo. Secondly, Ghanshyam Singh (wrongly shown as

P.W.9 & 10) claimed to have identified the signatures of the

Executive Magistrate, Mr. Darban Singh Verma. However,

when Mr. Darban Singh Verma was produced as witness

under Section 311 Cr.P.C., he empathetically, denied the

holding of the TIP. According to his testimony, a police officer

belonging to the CB-CID had come to his residence in

Muzaffarnagar and informed him that he is required to testify

in Session Trial No.333/98, "State vs. Nafees & others". He

further claimed that he had studied the entire file of Session

Trial No.333/98, but could not understand as to why he has

been summoned as a witness. He further claimed that the

Special Public Prosecutor informed his that he must testify

with regard to Paper No.10/23, which was the Test

Identification memo. According to this witness, the said Test

Identification memo relates to the accused Nafees, Islam and

Saleem. But according to this witness, he clearly stated that

"on 22.02.1997, he was neither asked to hold a TIP as the

Magistrate, nor was he authorized to do so". He further

claimed that the "Test Identification memo does not bear his

signatures". He further claimed that "the signatures contained

on the second page under the words "Magistrate, Ist Class"

are not his signatures". Once this witness has denied his

signatures, once this witness has denied his holding any TIP

on 22.02.1997, obviously, the alleged TIP loses all its

evidentiary value.

20. Interestingly, while discussing the evidence with

regard to the veracity and validity of the Test Identification

memo and the Test Identification Parade, the learned Trial

Court has totally ignored the testimony of Darban Singh

Verma, who, according to the prosecution, had conducted the

TIP. His claim that he did not conduct any such TIP knocks

the bottom out of the case of the prosecution. Therefore, the

identification claimed by Mohd. Abbas (P.W.1) and Irshad

Ahmad (P.W.8) cannot be accepted.

21. In the case of Sahadevan (supra), the Hon'ble

Supreme Court has extensively dealt with the evidentiary

value of an extra-judicial confession. Relying on the case of

Balwinder Singh vs. State of Punjab, [1995 Supp. (4)

SCC 259], the Hon'ble Supreme Court has opined that "an

extra-judicial confession by its very nature is rather a weak

type of evidence and requires appreciation with a great deal

of care and caution. Where an extra-judicial confession is

surrounded by suspicious circumstances, its credibility

becomes doubtful and it loses its importance."

22. Furthermore, relying on the case of State of

Rajasthan vs. Raja Ram, [(2003) 8 SCC 180], the

Hon'ble Supreme Court has opined that "such a confession

can be relied upon and conviction can be founded thereon if

the evidence about the confession comes from the mouth of

witnesses who appear to be unbiased, not even remotely

inimical to the accused, and in respect of whom nothing is

brought out which may tend to indicate that he may have a

motive of attributing an untruthful statement to the accused".

23. The Hon'ble Supreme Court has laid down the

following principles with regard to the acceptance of an extra-

judicial confession in convicting the accused:-

"i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law".

24. While dealing with an extra-judicial confession,

allegedly, made both by Nafees and Saleem to Tahir Hassan

(P.W.3), these principles established by the Hon'ble Supreme

Court necessarily have to be kept in mind.

25. In his cross-examination, Tahir Hassan (P.W.3)

admits that he is related to the deceased Mohd. Akram.

According to Alladiya (C.W.1), Akram's brother is married to

Tahir Hassan's sister. Thus, there is a close relationship

between the deceased and Tahir Hassan, as Tahir Hassan

happens to be the brother of Akram's sister-in-law. Moreover,

according to Tahir Hassan (P.W.3), both Nafees and Saleem

had come to meet him at the nursing home where he was

hospitalized five to six months after the incident. Tahir

Hassan (P.W.3) would have the court believe that both the

appellants came one after another. They initially inquired

about his health, and, subsequently, told him that due to

greed, and since Abid had promised to pay them Rs.60,000/-,

they had agreed to kill Mohd. Akram. It is due to this

enticement, and due to the fact that Rs.30,000/- was already

paid to them, they carried out the murder. Having said so,

they quietly left the hospital. Tahir Hassan (P.W.3) further

claims that they had come to him as both of them were

known to him. Moreover, they were well-aware of the fact

that he had resolved the problems of many persons by using

his influence with the police.

26. It is, indeed, trite to state that an offender would

go and make an extra-judicial confession before a person

whom he has confidence. Moreover, an extra-judicial

confession is generally made to a person whom the maker

believes a person who would be able to save him/her.

27. In the present case, surprisingly, an extra-judicial

confession is made five to six months after the incident. It is

made to a person who is a close relative of the deceased.

Therefore, it is unbelievable that such an extra-judicial

confession would have been made to a person who, in fact,

belongs to the family of the deceased.

28. Considering the close relationship between the

deceased and Tahir Hassan (P.W.3), the evidence with regard

to the alleged extra-judicial confession is not coming from

mouth of a witness who appears to be unbiased, not even

remotely inimical to the accused. In fact, there is a grave

motive for attributing an untruthful statement to the accused

by Tahir Hassan (P.W.3). Thus, the alleged extra-judicial

confession does not inspire confidence in the mind of this

Court. For, there is no possibility that both the appellants will

approach Tahil Hassan (P.W.3), that too, when he is

undergoing an operation in a hospital, and, that too, one after

another. Hence, the evidence of the alleged extra-judicial

confession seems to be an attempt by the Investigating

Agency to fill up the gaping holes in the investigation. Hence,

the alleged extra-judicial confession testified by Tahir Hassan

(P.W.3) is an unreliable piece of evidence.

29. But, for these two pieces of evidence, namely, the

Test Identification of the appellants by Mohd. Abbas (P.W.1)

and Irshad Ahmad (P.W.8), and the alleged extra-judicial

confession, allegedly, made to Tahir Hassan (P.W.3), the

prosecution has not been able to bring any other evidence

against the appellant.

30. Interestingly, despite the fact that the case was

investigated by the CB-CID, the Investigating Agency could

not recover either the firearm used for killing Mohd. Akram,

nor Rs.30,000/- which was allegedly given by Abid to the

appellants.

31. Most interestingly, the learned Trial Court has

acquitted Abid for offence under Section 302 read with 120-B

IPC, inter alia, on the ground that there is no evidence to

establish any conspiracy between the appellants and Abid.

Yet, simultaneously, the learned Trial Court would have us

believe that Nafees and Saleem have killed Mohd. Akram at

the behest of Abid, and that too, because Abid agreed to pay

them an amount of Rs.30,000/-.

32. For the reasons stated above, the appeal is, hereby

allowed. The judgment and order dated 07.02.2013, passed

by the learned IInd Additional District & Sessions Judge,

Haridwar is, hereby, set-aside. Appellants are acquitted of the

charges framed against them. The appellants, Nafees, S/o

Latif and Saleem, S/o Saddiq, are in jail. They be released

forthwith, if not required in any other case.

33. Let a copy of this judgment along with LCR be sent

back to the trial court for forthwith compliance.

34. No order as to costs.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 01st July, 2021 NISHANT