Delhi High Court
State(Delhi Administration) vs Shahid Mian And Anothers on 16 July, 2009
Author: Ajit Bharihoke
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 09, 2009
Judgment delivered on : July 16 , 2009
+ CRIMINAL APPEAL NO.175/1996
STATE (DELHI ADMN.) ..... Appellant
Through: Mr. M.N. Dudeja, Advocate
versus
SHAHID MIAN & ANR. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. This appeal is directed against the order of acquittal dated 08.05.1995 passed by the learned Additional Sessions Judge in Sessions Case No.94/94 arising out of case FIR No.429/93, Police Station Nangloi, under Section 302/506/34 of the Indian Penal Code read with Section 27 of the Arms Act.
2. Briefly stated, case of the prosecution as disclosed in the charge sheet is that on 04.10.1993 at about 4.29 AM wireless operator of police control room visited Police Station Nangloi and informed that Crl. A.175/1996 Page 1 of 9 one Mohd. Idrish resident of Budh Bazar, Nangloi has given information on telephone that a murder has been committed in House No.552, adjacent to House No.510 of Shahid Parvesh. The information was recorded as DD No.48B and entrusted to SI Raghbir Singh for verification who immediately left the Police Station. Immediately thereafter, the accused Shahid Mian reached at the Police Station. He was carrying two blood stained churras (knives) and he stated that he has killed his sister Sajida Begum and her sons Sikandar Ali and Shahid Ali at his House No.B-463, Camp No.2, Nangloi, by stabbing them with the knife. Thereafter, he along with Sagir Khan went to House No.A- 616, Camp No.2, Nangloi where his elder sister's son Sartaj Mian was sleeping with his co-workers Mohd Rashid, Sanaullah Khan and Mohd. Anwar. Sagir Khan caught hold of Sartaj Mian and he killed Sartaj Mian with the churri. He also stated to the Duty Officer that because of noise, co-workers of deceased Sartaj Mian awoke and he threatened to kill them if they intervened. Statement of accused Shahid Mian was recorded by the Duty Officer on basis of which a formal FIR was registered and it was sent to SI Raghbir Singh through ASI Dharambir Singh. It is further alleged that the Duty Officer took the knife and the churri from the accused Shahid Mian and converted them into sealed packets before taking possession.
3. SI Raghbir Singh, on the receipt of the copy of the FIR, interrogated accused Shahid Mian, who made a disclosure statement and pursuant to that disclosure statement, he led the Police party to Crl. A.175/1996 Page 2 of 9 House No.B-463, Camp No.2, Nangloi from where dead bodies of Sajida Begum and her sons Sikandar Ali and Shahid Ali were recovered. Thereafter, the accused Shahid Mian led the Police party to House No.A-616, Camp No.2, Nangloi from where dead body of deceased Sartaj Mian was recovered. Post mortem of dead bodies was got conducted. The blood stained clothes of the deceased persons, besides a blood stained gudri recovered from House No.B-463, Camp No.2 were also seized. All the seized articles including blood stained clothes of the accused Shahid Mian and the blood stained knife and churri were sent for serological examination. Co-accused Sagir Khan was also arrested and after completing the necessary formalities of investigation, both the accused were sent for trial for the offences punishable under Section 302/506/34 IPC and Section 27 of the Arms Act.
4. Both the accused were charged for offences under Section 302/34 IPC for having committed murder of Sajida Begum, Sikandar Ali, Shahid Ali and Sartaj Mian. They were also charged for the offence of criminal intimidation punishable under Section 506 read with Section 34 IPC. Accused Shahid Mian was further charged for the offence under Section 27 Arms Act and for having illegal possession of knife and a churi with intention to use the same for unlawful purpose and used for committing murder. Both the accused pleaded not guilty and claimed trial.
Crl. A.175/1996 Page 3 of 9
5. On consideration of evidence and statement of the accused person, learned Trial Judge acquitted both the accused, vide impugned judgment, giving them benefit of doubt. Feeling aggrieved by the order of acquittal, State has come in appeal.
6. On perusal of record, we notice PW2 Sanaullah Khan and PW3 Mohd Rashid, the alleged eye witnesses to murder of deceased Sartaj Mian, are hostile witnesses and they have not supported the case of the prosecution inasmuch as according to them, murder was committed by a single unknown assailant. Secondly, none of these witnesses have identified either of the accused as the person who killed Sartaj Mian. So far as murder of other three deceased Sajida Begum, Sikandar Ali and Shahid Ali is concerned, there is no eye witness to the occurrence. Thus, the prosecution case hinges on the circumstantial evidence only.
7. Learned Trial Judge while recording acquittal of both the accused has concluded that the confession made by accused Shahid Mian to the Duty Officer, Police Station Nangloi is inadmissible in evidence in view of Section 25 of the Indian Evidence Act.
8. Learned counsel for the State has submitted that the trial court has erred in rejecting the confessional statement of the accused Shahid Mian. He has submitted that the learned trial court ought to have considered that the accused Shahid Mian had voluntarily visited the Police Station and narrated the entire incident which information Crl. A.175/1996 Page 4 of 9 has formed basis of registration of the case. He has argued, since the aforesaid statement, which is confessional in nature, was made voluntarily and without any inducement or threat on the part of the Police and at that time accused was not even in custody of the police, learned trial court ought to have relied upon the same, particularly, when that confession was made before the registration of the case.
9. We do not find any merit in the submission made by the learned counsel for the State. The law relating to confession is enumerated in Sections 24 to 30 of the Indian Evidence Act and Section 162 and 164 of the Code of Criminal Procedure, 1973. Section 24 of the Evidence Act provides that a confession made by an accused as a result of inducement, threat or promise is irrelevant in criminal proceedings. Section 25 of the Evidence Act provides that no confession made to the Police shall be proved against a person accused of any offence. Section 26 of the Evidence Act deals with the confessions made by an accused while in Police custody and it provides that such confession shall not be proved against accused unless it is made in immediate presence of a Magistrate. Only exception to the above referred Rules is Section 27 of the Evidence Act which provides that if as a consequence of information received from a person accused of any offence a relevant fact is discovered, only such part of confession which relates distinctly to the fact thereby discovered may be proved in the criminal proceedings.
Crl. A.175/1996 Page 5 of 9
10. From the aforesaid position of law, it is obvious that there is a bar on admitting an evidence of confession made by an accused to a Police officer unless it falls within the exception provided under Section 27 of the Indian Evidence Act. In other words, only that portion of confession could be taken in evidence which has led to discovery of some relevant fact which was already not within the knowledge of investigating agency. In our considered view, the information furnished by the accused Shahid Mian to the Duty Officer, which form basis of registration of FIR, amounts to a confession made to a Police officer thus it is inadmissible in evidence in view of the bar provided by Section 25 of the Indian Evidence Act. (Reference be made to Judgment of Hon'ble Supreme Court in the matter of Aghnoo Nagesia Vs. State of Bihar, 1966 Criminal Law Journal, 100(Volume 72)). However, as per evidence on record pursuant to the aforesaid confession made by the accused Shahid Mian, dead bodies of Sajida Begum, Sikandar Ali, Shahid Ali and Sartaj Mian were respectively recovered from Houses No.B-463, Camp No.2, Nangloi and A-616, Camp No.2, Nangloi. Since the information furnished by the accused has led to the discovery of dead bodies from the house numbers mentioned by him in his statement, that part falls within the exception provided under Section 27 of the Evidence Act, therefore, it can be taken into account as a relevant fact.
11. Learned counsel for the State has further argued that pursuant to the information given by the accused in his statement made to the Crl. A.175/1996 Page 6 of 9 Duty Officer, dead bodies of Sajida Begum, Sikandar Ali, Shahid Ali and Sartaj Mian were discovered from respective houses No.B-463, Camp No.2, Nangloi and A-616, Camp No.2, Nangloi. That portion of confessional statement is therefore admissible in evidence in view of the exception provided under Section 27 of the Evidence Act. He has argued that, therefore, learned trial court ought to have concluded that the accused by knowledge of murder of aforesaid persons having been committed at above referred houses, therefore, it ought to have been taken as a circumstance against him. He has submitted that said knowledge on the part of accused Shahid Mian coupled with the fact that blood stained knife and churri were recovered from his possession by the Duty Officer, Police Station Nangloi, and that his clothes were stained with blood provides sufficient circumstantial evidence to bring home guilt of accused Shahid Mian beyond reasonable doubt. Thus, he has contended that learned trial court has erred in appreciating the evidence and rejecting the strong circumstantial evidence against accused Shahid Mian.
12. It would be seen from the record that accused Shahid Mian has explained the presence of blood on his clothes and his knowledge about the murder of his sister Sajida Begum and her sons Sikandar Ali and Shahid Ali in House No.B-463, Camp No.2, Nangloi in his statement under Section 313 of the Code of Criminal Procedure. He has explained that on the fateful night, some unknown assailant came in the house and murdered his sister and her both sons. He got up on Crl. A.175/1996 Page 7 of 9 hearing the noise, but the person who committed the murder of his sister and nephews ran away. He raised an alarm and started looking for some vehicle to take them to the hospital. In the process, his clothes got stained with blood. The Police also came there and took him to the Police Station. Aforesaid explanation of accused Shahid Mian appears plausible and it explains his knowledge of presence of dead bodies in House No.B-463, Camp No.2, Nangloi as also the presence of blood on his clothes. Thus, in our considered view, the discovery of dead bodies from House No.B-463, Camp No.2, Nangloi and presence of blood stains on the clothes of Shahid Mian though it may raise suspicion against the accused is not sufficient to establish the guilt of accused Shahid Mian.
13. Once the confessional statement is rejected, only circumstance with which we are left against accused Shahid Mian is the recovery of a knife and a churri from the possession of accused Shahid Mian. It would be seen from the record that knife and churri recovered from the accused Shahid Mian, blood stained clothes of deceased person along with the blood stained clothes of accused Shahid Mian and accused Sagir Khan and blood stained earth etc. picked up from the spot of murder were sent for serological examination. Perusal of serological report Ex.PW15/A would reveal that, except the sample earth and sample unstained cement plaster picked up from the respective spots of occurrence, all the exhibits did test positive for human blood but blood groups on the same could not be detected, resulting in failure Crl. A.175/1996 Page 8 of 9 to establish that blood group of human blood found on recovered churri and knife matched with blood group of either of the deceased. Thus, in our view, the prosecution has also failed to link the knife and the churri recovered from Shahid Mian with the alleged murders.
14. It may also be pointed out that once the confession of accused Shahid Mian is held to be inadmissible in evidence, there is no evidence of motive on the part of the accused Shahid Mian as alleged.
15. In view of the discussion above, we do not find any infirmity in the Judgment of acquittal recorded by the learned trial court.
16. We do not find any merit in the appeal which is, accordingly, dismissed.
AJIT BHARIHOKE, J.
JULY 16, 2009 SANJAY KISHAN KAUL, J.
pst
Crl. A.175/1996 Page 9 of 9