Allahabad High Court
Pradeep Kumar Jain Alias Babbe vs State Of U.P. And Anr. on 24 September, 2002
Equivalent citations: 2003CRILJ682
ORDER R.K. Dash, J.
1. The petitioner is one of the accused in case crime No. 205 of 1998 under Section 302/120B I.P.C., P.S. M.M. Gate, District Agra. In the said case, police after investigation has laid chargesheet against him and four others. By filing the present case, he has prayed for quashing of the chargesheet in exercise of power under Section 482 Cr. P. C.
2. One Ved Prakash Sharma lodged FIR alleging that on 25-11-1995 at about 7.20 P.M. while he was sitting in the office of his brother Hari Ram Sharma (hereinafter referred to "the deceased"), four unknown persons being armed arrived there and indiscriminately fired at the deceased, as a result he dropped down there. When many persons from the nearby came on the spot the criminals made good their escape. It is stated that since the informant and others had seen the culprits with the help of electric light, they could be able to identify them. The persons present and the informant removed the deceased to the hospital where he was declared brought dead. The case of the petitioner is that neither he nor other accused persons have been named as the culprits in the FIR to have taken part in the alleged incident. So far he is concerned, police laid chargesheet against him under Section 120B I.P.C. alleging that he hatched a conspiracy to eliminate the deceased and arranged Raju alias Raj Kumar Bedia, a contract killer and committed his murder.
3. Learned counsel for the petitioner strenuously contended that no cogent and convincing material could be collected during investigation that the petitioner had conspired with other accused persons to kill the deceased and with that and in view, arranged the contract killer and did away with the deceased. The investigating officer arraigned him as accused merely basing on the confessional statement of the co-accused namely, Raju Bedia who allegedly confessed before him that he committed murder of the deceased at the behest of the petitioner and others. It is submitted that in view of the bar created by Section 25 of the Evidence Act, the alleged confessional statement of accused Raju Bedia cannot be proved as evidence either against him or any other accused. The only confessional statement which can be made use of as a piece of evidence by the prosecution against co-accused is provided in Section 30 of the said Act. But judicial opinion is unanimous that basing on such statement, finding of guilt cannot be recorded against co-accused since it is not substantive evidence. It can only be used as a corroboration to land assurance to the proved circumstances. In the case in hand, urged the counsel, except the confessional statement of the co-accused as aforesaid, no other evidence could be collected during investigation that the petitioner had conspired to kill the deceased and in order to put the same into action, arranged a contract killer and caused his death.
4. In spite of sufficient time being allowed to the respondent, no counter has been filed refuting the correctness of the assertions made in the petition. As would appear from the order dated 8th April, 2002, learned A. G. A. submitted that despite notice and reminders, S.S.P. and S.P.O., Agra did not show any anxiety to file counter affidavit. However, on his assurance that an affidavit would be filed sworn to by the investigating officer indicating the materials available against the petitioner to rope him in the crime, the case was adjourned to 10th April, 2002. Even then when no return was filed, the Court had no other option but to take up hearing to decide the case on the basis of the averments made in the petition.
5. To repeat with, the petitioner's case is that except the confessional statement of co-accused made before the police, no other material could be collected during investigation to connect him in the alleged crime. It need not be emphasised that a confession is legally admissible as 'evidence' against the maker. But there is a bar to its admissibility as provided in Sections 24 and 25 of the Evidence Act. If any confessional statement is extracted by inducement, threat or promise by a person in authority or such statement is made before police, the same under no circumstance would be treated as evidence against the accused. The inadmissibility of such statement as evidence is based on the ground of public policy. It is common knowledge that police extorts by oppression, torture or inducement and in order to guard this evil, Section. 25 of the Evidence Act has been enacted. Therefore, any confession by the accused to the police except to the extent provided in Section 27 of the said Act cannot be brought in evidence against him. In view of such legal position, the confessional statement of Raju Bedia, one of the accused, annexure-4 being hit by Section 25 of the Evidence Act cannot be made use of by the prosecution either against him or the petitioner who has been arrayed as co-accused.
6. Assuming for the moment that accused Raju Bedia made a confessional statement implicating him and the petitioner before others, question arises whether on the basis of such statement and without there being any other evidence, the petitioner could be asked to face the trial. To answer the question, reference may be made to Section 30 of the Evidence Act which inter-alia provides that when more persons than one are being tried jointly for the same offence, a confession made by one of such persons affecting himself and some others of such person is proved, the Court may take into consideration such confession as against such other person as well as against the maker. What would be the evidentiary value of such confession even if inculpatory came for consideration before the Supreme Court in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 and the Court answered the same in the following words :
"The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
7. The Court made reference to the decision of the Privy Council in Bhuboni Sahu v. The King, AIR 1949 PC 257 where it was observed that such confession cannot be made the foundation of conviction and can only be used in "support of other evidence." Notice was also taken to the observation of Sir Lawrence Jenkins in Emperor v. Lalit Mohan, (1911) ILR 38 Cal 559 that such a confession can only be used to "lend assurance to other evidence against a co-accused."
8. In view of the law laid down by the Apex Court, merely basing on the confessional statement of a co-accused and without there being any other evidence to support the charge, the accused cannot be asked to face the trial. In the case on hand, there being no evidence either direct or circumstantial against the petitioner, the confessional statement of co-accused Raju Bedia cannot be made use of against him and in that view of the matter, I am of the opinion that the continuance of the criminal proceeding against the petitioner would amount to abuse of process of the Court.
9. In the result, criminal application is allowed and consequently, the criminal proceeding in case No. 728 of 1998 as against the petitioner is quashed.