Ali Mohd. Sheikh vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, J.—Order dated 21.02.2009 passed by learned IVth Additional Sessions Judge, Srinagar in case FIR No.

76/2008 u/s 120-B, 302, 201 RPC registered with Police Station, Parimpora, Srinagar, vide which the accused persons have been ordered to be

charged and put on trial, is challenged in this petition, so far it pertains to accused No. 3.

Case was registered for murdering one Ghulam Nabi Sheikh. During the investigation the Investigating Agency recorded statements of

witnesses. Confessional statements were made by accused No. 1 and 2. In the confessional statements details about the alleged commission of

offence and how the accused alongwith Petitioner conspired to kill the deceased are given in detail. Apart from that, Mst. Jana, wife of deceased

and Bilal Ahmad, son of deceased and some other witnesses also, whose statements were recorded u/s 161 Code of Criminal Procedure, have

pointed finger of accusation towards the Petitioner.

At the stage of framing of charge/discharge learned Counsel for the Petitioner argued before learned trial court that except the confessional

statements of two accused persons there is nothing on record, not any iota of evidence, which will demonstrate that the Petitioner is involved in

commission of the offence. The learned trial Judge, however, reflected the contention of accused No. 3-Petitioner and, accordingly, ordered for

framing of charge against accused, including the Petitioner u/s 120-B, 302, 201 RPC.

Heard learned Counsel for the parties. Considered the matter. The submission of Mr. R.A. Jan, learned Counsel for the Petitioner is that apart

from the confessional statements made against the Petitioner by other two accused persons there is not even shred of evidence available on record,

which would even distinctly suggest that the Petitioner is involved in commission of offence. Learned Counsel further submitted that confessional

statement of co-accused cannot be read against other co-accused person, said statement being inadmissible in law, so far as it pertains to third

person. The case against the Petitioner is, thus, a case of no evidence and Petitioner deserves to be ordered to be discharged from the case.

Mr. S.A. Vakil, learned AAG on the other hand submitted that besides incriminating evidence available on record against the Petitioner in the

shape of confessional statements of accused No. 1 and 2, there are other statements also recorded u/s 161 Code of Criminal Procedure by the

Investigating Officer, which too point accusing finger towards the Petitioner and prima facie show involvement of Petitioner in commission of the

offence.

It is not disputed that the confessional statements made by the other two co-accused persons show that conspiracy was allegedly hatched to kill

Ghulam Nabi Sheikh and the Petitioner was part of that conspiracy. It is to be seen as to whether this confessional statement is admissible as

evidence against the Petitioner.

Mr. Jan, learned Counsel for the Petitioner referred to Section 25 and 26 of - the Evidence Act, Svt. 1977 (hereafter for short 'the Act') to

show that to which extent the confessional statement is admissible in evidence. Section 25 and 26 of the Act are reproduced as under:

Confesion to police officer not to be proved

No confession made to a police officer shall be proved as against a person accused of any offence.

Confession by accused while in custody of police not to be proved against hint.?

No 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.

Section 25 and 26 of the Act has relevance to the person who allegedly make a confessional statement. Section 25 provides that no confession

made to a police officer shall be proved as against a person accused of any offence. Section 26 of the Act also provides that no confession made

by any person while he is in the custody of a police officer, unless made in the immediate presence of a Magistrate, shall be proved as against such

person.

It is settled position in law that confessional statement of accused in terms of Section 25-27 cannot be proved against him excepting to the

extent provided under above referred provisions of the Act. These provisions of law have reference to the person who is making confessional

statement which cannot be read against him subject to exceptions contained in the provisions referred to herein above. On the appreciation of

these provisions of law the argument of learned Counsel for the Petitioner that statement may not be admissible in evidence against co-accused falls

flat as because these provisions show as to what extent and in which circumstances the said statement can be relied upon against maker thereof.

Learned Counsel for the Petitioner referred to and relied on Zaki Ahmad v. State of U.P. reported in 1988 ALJ 453. The said judgment provides

that a confessional statement is not only inadmissible against maker thereof but against the co-accused as well. The learned Counsel has referred to

this judgment from Field's Commentary on Law of Evidence, but entire judgment is not before the Court. However, a bare perusal of this

statement in the Field's Commentary on Law of Evidence provides that this principle of law has reference to provisions of Section 25 of the Act.

Section 10 of the Act deals with the things said or done by conspirator in reference to common design. Section 10 of the Act is reproduced as

under:

Things said or done by conspirator in reference to common design? Where there is reasonable ground to believe that two or more persons

have conspired together to commit an offence or an actionable wrong, any thing said, done or written by any one of such persons in reference of

their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons

believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person

was a party to it.

A bare perusal of the Section provides that where there is reasonable ground to believe that two or more persons have conspired together to

commit an offence or an actionable wrong, any thing said or done in reference of their common intention is a relevant fact against each of the

persons believed to be conspiring, as well as for showing that any of the person was a party to it.

Since the present case is based on conspiracy relatable to Section 10 of the Act so same get attracted. A confessional statement made by a

co-accused against other accused can be relied upon for proving the offence.

The Hon'ble Supreme Court in case State of Maharashtra Vs. Damu Shinde and Others, has held that on the basis of confessional statement of

one of the accused, whatever the other co-accused stated, would be relevant u/s 10 against co-accused as well, the basic theory of Section 10

being agency and hence every conspirator will be liable for the offence. The present case is strictly covered by Section 10 of the Act and the trial

court has rightly framed charge against the Petitioner.

For the above stated reasons it is held that there is sufficient material available on the record of trial court to presume commission of offence

but the Petitioner and with which he is charged.

For the reasons detailed above, this petition being meritless is dismissed. Record be sent back immediately. Trial court to proceed with the

trial. Learned Counsel to appear before the trial court on 7th of December, 2009.

Learned Counsel for the Petitioner at the conclusion of this order submitted that there is no ground, muchless a reasonable ground, to be said

to be existing against the Petitioner, as, according to him, confessional statement is inadmissible evidence.

This argument has been taken care of by the reasoning given in the judgment. The argument is not available in aspect of the confessional

statement in this case in view of clear mandate contained in Section 10 of the Evidence Act.