Delhi District Court
State vs 1) Abdul Karim @ Tunda @ Abdul Quddus on 5 March, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0184582013
Sessions Case No. 210 of 2013
State Versus 1) Abdul Karim @ Tunda @ Abdul Quddus
2) Mohd. Zakaria
3) Mohd. Allauddin
4) Mohd. Basiruddin
FIR No. : 49 of 1998
U/s: 121 / 121A 120B of the IPC
PS: Special Cell
ORDER ON CHARGE
1. By way of this supplementary charge-sheet, accused
Abdul Karim @ Tunda @ Abdul Quddus, Mohd. Zakaria, Mohd.
Allauddin and Mohd. Basiruddin are sought to be charged for having
committed the offences punishable under Sections 121, 121A, and
120B of the Indian Penal Code (IPC).
2. Before proceeding to consider the case set up against the
above mentioned accused persons, it will be necessary to record certain
facts leading to the filing of the present police report.
3. In the year 1997, a large number of bomb blasts had taken
place in Delhi, Panipat, Rohtak, Sonipat, Ludhiana, Kanpur and
Varanasi. Thirty FIRs were registered out of which twenty had been
registered in Delhi. A team of the Crime Branch, Interstate Cell was
formed under supervision of Deputy Commissioner of Police (DCP).
During the course of investigation, Amir Khan @ Kamran, Mohd. Matur
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 1/17
Rehman @ Moosa @ Viplav, Akbar @ Abdullah @ Harun @ Raju,
Mohd. Shakil @ Hamja, Abdul Bagi, Abdul Rehman @ Mikayal Bijliwala,
Maqsood Ahmad @ Fadullah @ Haidar @ Badruddin, Mohd. Izaz @
Abdullah @ Suleman, Mohd. Hussina @ Zulfikar Ali @ Rahul @ Abdul
Zabbar, Mohd. Umar, Mohd. Safiqul Islam @ Safuddin, Abdul Qasim @
Bhol, Mohd. Ishtiaq @ Abu Sayeed @ Salim @ Mohd. Salim Zunaid,
Mehmood @ Zakir Husain @ Abu Darda and Ahmad Hussain were
apprehended.
4. Upon completion of investigation against the above
mentioned accused persons, a charge-sheet was filed. Charges against
the above mentioned accused persons were framed for offences
punishable under Sections under Sections 121, 121A, 120B of the IPC,
Section 14 Foreigners Act, Sections 4, 5 of the Explosive Substances
Act and 25 Arms Act in FIR No. 49 of 1998, PS Special Cell titled 'State
vs. Mohd. Amir Khan etc.' After recording testimonies of of 81 witnesses
had been recorded, during the course of trial, the following accused
persons pleaded guilty to the charges framed against them:-
(a) Mohd. Ishtiaq @ Abu Sayeed @ Salim @ Mohd. Salim Zunaid,
(b) Akbar @ Abdullah @ Harun @ Raju
(c) Abdul Rehman @ Mikayal Bijliwala,
(d) Maqsood Ahmad @ Fadullah @ Haidar @ Badruddin
(e) Mohd. Safiqul Islam @ Safuddin
(f) Mohd. Matur Rehman @ Moosa @ Viplav
(g) Ahmad Hussain; and
(h) Mehmood @ Zakir Husain @ Abu Darda
5. The above mentioned accused persons were convicted
vide judgment dated 28.11.2002 by the Court of Sh. M.S. Sabherwal,
Additional Sessions Judge, Delhi and by a subsequent order dated
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 2/17
16.01.2013 of the same Ld. Court, they were sentenced.
6. The trial thereafter proceeded qua the following seven
accused persons:-
(a) Amir Khan @ Kamran,
(b) Mohd. Shakil @ Hamja
(c) Abdul Bagi, Abdul Rehman @ Mikayal Bijliwala,
(d) Mohd. Izaz @ Abdullah @ Suleman,
(e) Mohd. Hussian @ Zulfikar Ali @ Rahul @ Abdul Zabbar,
(f) Mohd. Umar, and
(g) Abdul Qasim @ Bhol.
7. Upon conclusion of the trial, the above mentioned seven
accused persons were convicted vide judgment dated 17.01.2006
passed by the Court of Sh. Rajiv Mehra, Ld. Additional Sessions Judge,
Delhi in Session Case No. 168 of 2005 in the following manner:-
(a) Accused Amir Khan @ Kamran; Mohd. Shakil @ Hamja;
Abdul Bagi; Abdul Rehman @ Mikayal Bijliwala; Mohd. Izaz @
Abdullah @ Suleman and Mohd. Hussain @ Zulfikar Ali @ Rahul
@ Abdul Zabbar were convicted for the offence punishable under
Section 121 A of the IPC;
(b) All the accused except the accused Abdul Bagi were
convicted for the offence punishable under Sections 4 and 5 of
the Explosive Substances Act;
(c) Accused Amir Khan @ Kamran was convicted for the offence
punishable under Section 25 of the Arms Act;
(d) Accused Mohd. Hussina @ Zulfikar, Ali @ Rahul @ Abdul
Zabbar was convicted for the offence punishable under
Section27 of the Arms Act;
(e) Accused Mohd. Izaz @ Abdullah @ Suleman and Mohd.
Hussain @ Zulfikar, Ali @ Rahul @ Abdul Zabbar are convicted
for the offence punishable under Section 14 of the Foreigners
Act.
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 3/17
8. Subsequently, by order dated 18.01.2006 of the same Ld.
Court, the above mentioned accused persons were sentenced.
9. As per the present supplementary police report under
Section173 (2) of the Cr.P.C. qua the accused Abdul Karim @ Tunda @
Abdul Quddus, Mohd. Zakaria, Mohd. Allauddin and Mohd. Basiruddin,
it is stated that on 06.09.2013, Abdul Karim @ Tunda was arrested in
the present case after he had given a detailed disclosure statement in
FIR No. 46 of 1994, PS Malviya Nagar, Delhi. The allegations against
Abdul Karim @ Tunda are that he was the mastermind of the blasts that
had taken place in Delhi, Panipat, Rohtak, Sonipat, Ludhiana, Kanpur
and Varanasi in 1997. Abdul Karim @ Tunda had disclosed that he had
provided training to persons in handling bombs and that on his
directions they had carried out the blasts in the year 1997. It is the case
of the prosecution that the accused apprehended earlier and sent for
trial had also given disclosure statements that Abdul Karim @ Tunda
was the person who had instructed them.
10. During police custody, Abdul Karim @ Tunda disclosed
that co-accused Mohd. Zakaria, Mohd. Allauddin and Mohd. Basiruddin
had already been arrested. Upon inquiry, it came to light that Mohd.
Allauddin and Mohd. Basiruddin had been apprehended in FIR No. 650
of 2013, PS Raiganj, District Uttar Dinajpur, West Bengal and were
lodged in Cellular Jail, Islampur, West Bengal. Accused Mohd. Zakaria
had been apprehended in FIR No. 93 of 2009, PS Sector P-3, West
Bengal and was lodged in Presidency Jail. Upon applications being
made, production warrants were issued qua these three accused
persons.
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 4/17
11. On 16.09.2013, Mohd. Zakaria was produced in Patiala
House Courts and was arrested upon permission being granted by the
Court. On 23.09.2013, accused Mohd. Allauddin and Mohd. Basiruddin
were produced in Patiala House Courts and were arrested. Upon
interrogation, these three accused persons gave disclosure statements.
12. As per case set up in the police report, accused Mohd.
Allauddin and Mohd. Basiruddin were in league with accused Abdul
Karim @ Tunda and on his directions, the accused namely Mohd.
Zakaria, Mohd. Allauddin and Mohd. Basiruddin had helped terrorists
cross India-Bangladesh border to carry out terrorist activities in the year
1995-1996.
13. During the course of investigation, on 29.09.2013, the
accused Mohd. Zakaria, Mohd. Allauddin and Mohd. Basiruddin were
taken to West Bengal by the Investigating Officers. Accused Mohd.
Zakaria led the police to Village Atrosia, PS Lal Gola, Mushirabad, West
Bengal and pointed out that the place where he in the year 1996 on the
directions of Abdul Karim @ Tunda and with the help of his co-accused
Mohd. Allauddin and Mohd. Basiruddin had helped Shakil and Amir
Khan to illegally cross the border to go and meet Abdul Karim @ Tunda
in Bangladesh and also to cross back in to India after they were trained
in 1996. He also pointed out the place where with the help of his co-
accused, he had enabled four terrorists Matiur Rehman, Akbar @
Abdullah, Mohd. Shafikul Rehman and Abdul Karim to cross the India-
Bangladesh border.
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 5/17
14. As per police report, accused Zakaria led the police team
to Station near village Gobtola, Siropora, Thana Lal Gola, Mushirabad,
West Bengal to Nazad Renu outpost BSF (also known as Furfuri
border) and pointed out places from where in 1996, he on the directions
of Abdul Karim @ Tunda and with the help of co-accused Mohd.
Allauddin, Mohd. Basiruddin and Shafiq enabled three Pakistan
terrorists Mohd. Hussain, Mohd. Azaz @ Abdullah and Maqsood Ahmad
to illegally cross the India-Bangladesh border to get into India. He
further pointed out the same place in 1994-95 from where he had
helped Abdul Karim @ Tunda and his family to illegally cross the border.
15. Similarly accused Allauddin and Mohd. Basiruddin also
pointed out the places from where they, on the directions of Abdul Karim
@ Tunda, and with the help of their co-accused had enabled terrorists
to cross the India-Bangladesh border.
16. Ld. Counsel for the accused persons had argued that the
case set up qua Abdul Karim @ Tunda as well as other three accused
persons was based on solely on their disclosure statements, disclosure
statements of co-accused persons and pointing out memos in
pursuance of their disclosure statements as well as disclosure
statements of previously tried co-accused persons. They submitted that
apart from the same, there was no other independent evidence on the
basis of which the charges are sought to be proved against them.
17. It is not disputed by the Ld. Addl. PP for the State that the
case against the present four accused persons is sought to be
established on the basis of their disclosure statements and pointing out
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 6/17
memos and disclosure statements of previously tried co-accused
persons.
18. In the case of Madhu v. State of Kerala, (2012) 2 SCC 399
the Hon'ble Supreme Court was pleased to hold as under:
"47. The most significant issue in the present controversy is
the veracity of the confessional statements made by the
accused Madhu and Sibi before P.J. Thomas PW 21, Circle
Inspector of Police on 13-5-1998. It is evident that the
aforesaid statements were made by the accused before a
police officer while the accused were in custody of the police.
Section 25 of the Evidence Act postulates that a
confession made by an accused to a police officer cannot
be proved against him. Additionally, Section 26 of the
Evidence Act stipulates that a confession made by an
accused while in police custody cannot be proved against
him. It is evident from the factual position narrated
hereinabove, that the statements made by the accused Madhu
and Sibi were made to a police officer while the accused were
in police custody. It is, therefore, apparent that in terms of the
mandate of Sections 25 and 26 of the Evidence Act, the said
statements could not be used against accused Madhu and
Sibi. But then, there is an exception to the rule provided for by
Sections 25 and 26 aforesaid, under Section 27 of the
Evidence Act.
48. Section 27 of the Evidence Act is being extracted
hereunder:
"27. How much of information received from accused may
be proved.--Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved."
As an exception, Section 27 of the Evidence Act provides
that a confessional statement made to a police officer or
while an accused is in police custody, can be proved
against him, if the same leads to the discovery of an
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 7/17
unknown fact. The rationale of Sections 25 and 26 of the
Evidence Act is, that police may procure a confession by
coercion or threat. The exception postulated under Section 27
of the Evidence Act is applicable only if the confessional
statement leads to the discovery of some new fact. The
relevance under the exception postulated by Section 27
aforesaid, is limited "... as relates distinctly to the fact thereby
discovered....". The rationale behind Section 27 of the
Evidence Act is, that the facts in question would have
remained unknown but for the disclosure of the same by
the accused. The discovery of facts itself, therefore,
substantiates the truth of the confessional statement. And
since it is truth that a court must endeavour to search,
Section 27 aforesaid has been incorporated as an
exception to the mandate contained in Sections 25 and 26
of the Evidence Act."
(emphasis supplied)
19. In the case of Mohtesham Mohd. Ismail v. Enforcement
Directorate reported in (2007) 8 SCC 254 it was held as under:
"19. Apart therefrom the High Court was bound to take into
consideration the factum of retraction of the confession by the
appellant. It is now a well-settled principle of law that a
confession of a co-accused person cannot be treated as
substantive evidence and can be pressed into service only
when the court is inclined to accept other evidence and
feels the necessity of seeking for an assurance in support of
the conclusion deducible therefrom. (See Haricharan Kurmi v.
State of Bihar, Haroom Haji Abdulla v. State of Maharashtra and
Prakash Kumar v. State of Gujarat.)"
20. In the case of State of M.P. v. Mukesh reported in (2006)
13 SCC 197 it was held as under:
"20. The entire prosecution is based on the purported confession
of Suresh Shah. A statement of an accused would be
admissible against a co-accused only in terms of Section 30
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 8/17
of the Evidence Act. Such a statement of the co-accused
was required to be corroborated by adduction of
independent evidence. The prosecution has not adduced any
independent evidence to show that the respondents had
intentionally aided the said Suresh Shah and thereby abetted him in commission of an offence under Section 143(1) of the Railways Act."
21. In the case of R. Janakiraman v. State reported in (2006) 1 SCC 697 it was held by the Hon'ble Supreme Court as under:
"25. The contention that a statement under Section 164 CrPC of an accomplice/co-accused cannot be used as evidence against an accused, on the facts of this case, is rather misleading. It is no doubt well settled that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused and it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, it is permissible to turn to the confession in order to lend support or assurance to the conclusion of guilt which the court is about to reach on the other evidence, vide Hari Charan Kurmi v. State of Bihar and Dagdu v. State of Maharashtra. But in this case, the statements made by PW 11 and PW 15 before the Magistrate at Chennai are not the only evidence on which reliance is placed. It is used more as a corroboration. We may also note that PW 11 and PW 15 were not "co-accused" or "accomplices" or "abettors" of the appellant in regard to the charge of disproportionate assets. They came into the picture, only after the appellant's house was raided, in an effort by the appellant to explain the cash found to an extent of Rs 2,50,000."
22. In the case of State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari reported in (2013) 12 SCC 17 the Hon'ble Supreme Court was pleased to hold that:
"19. The issue in hand can also be examined from another perspective, though on the same reasoning. Ordinarily, as already noticed hereinabove, a confessional statement is State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 9/17 admissible only as against an accused who has made it. There is only one exception to the aforesaid rule, wherein it is permissible to use a confessional statement, even against person(s) other than the one who had made it. The aforesaid exception has been provided for in Section 30 of the Evidence Act, which is being extracted hereunder:
"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
* * *
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said -- 'B and I murdered C'. The court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said -- 'A and I murdered C'.
This statement may not be taken into consideration by the court against A, as B is not being jointly tried". As is evident from a perusal of Section 30 extracted above, a confessional statement can be used even against a co- accused. For such admissibility it is imperative that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, is such a confessional statement relevant even against the others implicated."
23. In the case of Mohd. Khalid v. State of W.B. reported in (2002) 7 SCC 334 the Hon'ble Supreme Court was pleased to hold that:
"31. A confessional statement is not admissible unless it is made to the Magistrate under Section 25 of the Evidence Act. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the co-accused the confession should be strictly State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 10/17 established. In other words, what must be before the court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non- maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect (sic) him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt.
The evidence of the co-accused cannot be considered under Section 30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. As noted above, the confession of a co-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is only when a person admits guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. The legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. 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 State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 11/17 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. This position has been clearly explained by this Court in Kashmira Singh v. State of M.P. The exact scope of Section 30 was discussed by the Privy Council in the case of Bhuboni Sahu v. R. The relevant extract from the said decision which has become locus classicus reads as follows: (AIR p. 260, para 9) Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party. ... But a confession of a co-accused is obviously evidence of a very weak type. ... It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction.
32. Kashmira Singh principles were noted with approval by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar. It was noted that the basis on which Section 30 operates is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly. So Section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession. It is significant, however, that like other evidence which is produced before the court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Evidence Act is produced before the court, it is the duty of the court to State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 12/17 consider that evidence. What weight should be attached to such evidence is a matter in the discretion of the court. But the court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the court in dealing with a confession because Section 30 merely enables the court to take the confession into account. Where, however, the court takes it into confidence, it cannot be faulted. The principle is that the court cannot start with confession of a co- accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidences, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on some other evidence. That is the true effect of the provision contained in Section 30. We may note that great stress was laid down on the so-called retraction of the makers of the confession. Apart from the fact that the same was made after about two years of the confession, PWs 81 and 82 have stated in court as to the procedures followed by them, while recording the confession. The evidence clearly establishes that the confessions were true and voluntary. That was not the result of any tutoring, compulsion or pressurization. As was observed by this Court in Shankaria v. State of Rajasthan the court is to apply a double test for deciding the acceptability of a confession i.e. (i) whether the confession was perfectly voluntary, and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. If the first test is satisfied, the court must before acting upon the confession reach the finding that what is stated therein is true and reliable. The Judicial Magistrate, PWs 81 and 82 have followed the requisite procedure. It is relevant to further note that complaint was lodged before the Magistrate before his recording of the confessional statement of accused Md. Gulzar. The complaint was just filed in court and it was not moved. The name of the lawyer filing the complaint could not be ascertained either. This fact has been noted by the Designated Court.
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 13/17
33. In view of what we have said about the confessional statement it is not necessary to go into the question as to whether the statement recorded under Section 164 of the Code has to be given greater credence even if the confessional statement has not been recorded under Section 15 of the TADA Act. However, we find substance in the stand of learned counsel for the accused-appellants that Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. In State of Gujarat v. Mohd. Atik it was held that the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act. Once the common intention ceased to exist, any statement made by a former conspirator thereafter cannot be regarded as one made in reference to their common intention. In other words, the post-arrest statement made to a police officer, whether it is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."
24. Section 25 of the Evidence Act bars the admissibility of a confessional statement made by an accused to a police official. Section 27 of the Evidence Act lays down that a confessional statement made to a police official can be proved against the accused if the same leads to the discovery of an unknown fact. The same has been held to be so and reiterated by the Hon'ble Supreme Court in the cases of Madhu v. State of Kerala (supra).
25. The disclosure statements of the present four accused were made to police officials and are thus inadmissible in evidence. No fact not known to the police was discovered in pursuance of the said State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 14/17 disclosure statements so as to bring the same within the meaning of Section 27 of the Evidence Act.
26. Section 30 read with illustration (b) of the Evidence Act provides that the confession of a co-accused can be taken into consideration only if the person making the confession and the co- accused are being jointly tried. In the cases of State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari and Md. Khalid v. State of W.B. (supra) Hon'ble Supreme Court held that evidence of a co-accused cannot be considered under Section 30 of the Evidence Act when he was not jointly tried with the accused.
27. In the present case accused confessional statements of the previously tried accused persons cannot be considered qua the present four accused as they are not being jointly tried with them. Thus even if the confessional statements of the previously tried accused persons were admissible, the same cannot be considered qua the present four accused persons.
28. In the cases of Mohtesham Mohd. Ismail v. Enforcement Directorate, State of M.P. v. Mukesh and R. Janakiraman v. State (supra), the Hon'ble Supreme Court was pleased to reiterate that a confession of a co-accused cannot be treated as substantive evidence. While considering the case against an accused, the Court cannot start with the confession of a co-accused and the Court has to begin with the other evidence adduced by the prosecution. It is only after the Court has formed an opinion regarding the quality and effect of such evidence State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 15/17 that it is permissible to rely on the confession of a co-accused to support the conclusion of guilt which the Court may reach on the basis of other evidence. A statement of the co-accused requires corroboration through independent evidence.
29. Even if it could be argued that the statements of each accused could be relied upon qua the other accused, the Court cannot start against each of them on the basis of statements of co-accused persons. Admittedly there is no other independent piece of evidence material relied upon by the prosecution which could implicate the present four accused persons with the proposed charges.
30. As far as the pointing out memos of Mohd. Zakaria, Mohd. Allauddin and Mohd. Basiruddin are concerned, they are in pursuance of the disclosure statements of the said accused persons. There is no independent witness to establish that these accused persons had helped terrorists to cross the Indo-Bangladesh border. These pointing out memos would therefore be to no avail.
31. As far as the charge of criminal conspiracy is concerned, Section 120B of the IPC makes punishable an act of a person who is party to a criminal conspiracy to commit an offence. Section 120A IPC defines 'criminal conspiracy' to mean where two or more persons agree to do or cause to be done an illegal act. In the present case the material relied upon for the charge of criminal conspiracy are the disclosure statements of the four accused persons. In the case of State vs. Navjot Sandhu reported in 2005 SCC (Cri) 1715, the Hon'ble Supreme Court State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 16/17 reiterated that statements made by conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act as by that time the conspiracy would have ended. Thus the said disclosure statements recorded after apprehension of the accused persons cannot be relied upon to establish that the present four accused persons were party to any criminal conspiracy. Even otherwise the said disclosure statements are inadmissible. Hence there is no admissible material brought by the prosecution to substantiate the charge of criminal conspiracy.
32. For the reasons recorded above, the accused accused Abdul Karim @ Tunda @ Abdul Quddus, Mohd. Zakaria, Mohd. Allauddin and Mohd. Basiruddin are discharged. All these four accused be released forthwith from judicial custody unless required in any other case or proceedings.
Announced in the open Court (REETESH SINGH)
on 5th March, 2016 ASJ-02/FTC, PHC/NDD
05.03.2016
State vs. Abdul Karim & Tunda & Ors.
FIR No. 49 of 1998, PS: Special Cell 17/17