Uttarakhand High Court
Section 148 Two Years Rigorous vs Unknown on 1 July, 2021
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/-
2
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, 3 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:-
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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. 5
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 6 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 7 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 8 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. 9 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.10
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 11 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.
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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 13 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, 14 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. 15 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. 16
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 17 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 18 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) 19 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 20 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 21 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
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. 23
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 24 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 25 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 26 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