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2009 DIGILAW 587 (JK)

Ali Mohd. Sheikh v. State Of J&K

2009-11-25

MUZAFFAR HUSSAIN ATTAR

body2009
1. Order dated 21.02.2009 passed by learned IVth Additional Sessions Judge, Srinagar in case FIR No. 76/2008 under Section 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. 2. 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 under Section 161 Cr.P.C, have pointed finger of accusation towards the petitioner. 3. 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 under Section 120-B, 302, 201 RPC. 4. 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. 5. 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 under Section 161 Cr. 5. 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 under Section 161 Cr. PC by the Investigating Officer, which too point accusing finger towards the petitioner and prima facie show involvement of petitioner in commission of the offence. 6. 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. 7. 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: "25. 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." 26. Confession by accused while in custody of police not to be proved against him.-- 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." 8. 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. 9. 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. 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 Alahabad Law Journal 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. 10. 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: "10. 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." 11. 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. 12. 12. 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. 13. The Hon'ble Supreme Court in case State of Maharastra v. Damu Gopinath Shinde and others reported in AIR 2000 SC 1691 has held that on the basis of confessional statement of one of the accused, whatever the other co-accused stated, would be relevant under Section 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. 14. 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. 15. 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. 16. 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. 17. 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.