Full Judgment Text
2024 INSC 475
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3524 OF 2023
LAL MOHAMMAD MANJUR ANSARI …APPELLANT
VERSUS
THE STATE OF GUJRAT …RESPONDENT
J U D G M E N T
ABHAY S. OKA, J.
1. The appellantaccused has been convicted for the
offence punishable under Section 302 of the Indian Penal
Code (for short, ‘IPC’) by the Sessions Court. By the impugned
judgment, the High Court has confirmed the appellant's
conviction. The appellant has been sentenced to undergo life
imprisonment.
FACTUAL ASPECT
The appellant raised a plea of juvenility. By the order
2.
th
dated 10 April 2023, this Court directed the Trial Court to
hold an inquiry into the plea of juvenility. Accordingly, an
th
order was made by the learned Trial Judge on 8 April 2023.
Signature Not Verified
The learned Trial Judge held that the appellant was not a
Digitally signed by
Anita Malhotra
Date: 2024.07.08
17:55:15 IST
Reason:
juvenile in conflict with the law on the date of the commission
Criminal Appeal No. 3524 of 2023 Page 1 of 12
of the offence. After that, leave was granted, and the appeal
was heard on merits.
th
The incident occurred on 6 September 2004. The
3.
accused was staying in room no. 3 rented to him by PW3
Alimuddin Amiruddin Shaikh. According to the prosecution,
the deceased – Mohmed Akhtar Gafur Ansari, was also
staying in the room no. 3, along with the appellant. There was
a dispute between them about playing music. The dispute led
to an altercation in which the appellant attacked the
deceased. The injuries sustained by the deceased caused his
death. The prosecution case is based on the evidence of
eyewitnesses PW3 to PW9, extrajudicial confession by the
appellant made to PW19 Mohammad Afroz and dying
declaration made by the deceased to PW24 Mohd. Rafiq.
Though PW3 to PW9 were declared hostile, the Trial Court
and High Court have relied on certain parts of their
testimony. The High Court has believed the testimony of PW
19 and PW24.
SUBMISSIONS
4. The learned counsel appearing for the appellant has
taken us through the testimony of hostile eyewitnesses. By
pointing out the findings of the High Court, he submitted
that, firstly, certain statements made by the eyewitnesses out
of context could not be relied upon by the prosecution.
Secondly, the testimony of the said witnesses does not
support the prosecution. Pointing out the evidence of PW19,
he submitted that according to the witness, he was the
Criminal Appeal No. 3524 of 2023 Page 2 of 12
appellant's employer. According to him, the appellant made a
phone call to him at 3.30 p.m. on the date of the incident and
informed him that he had murdered his roommate. He
pointed out that no investigation has been made about the
phone from which this call was made. Moreover, he pointed
out that though PW19 claims that he informed PSI Mishra of
Limbayat Police Station about the confession and called him
to Central Bus Station, PSI Mishra has not been examined as
a witness. He pointed out that according to the prosecution’s
case, even at Central Bus Sation, the appellant allegedly
made the second extrajudicial confession in the presence of
PSI Mishra. Therefore, the omission to examine PSI Mishra
becomes fatal to the prosecution case. He pointed out that the
prosecution case was that it was PSI Mishra who took the
appellant into custody and produced before PW25. The
version of PW25, the Investigating Officer, appears to be
doubtful. He submitted that the entire prosecution case
cannot be believed.
5. The learned counsel appearing for the State submitted
that though the eyewitnesses were declared hostile, their
testimony cannot be entirely discarded. She submitted that
the evidence of the said witnesses brings on record the fact
that at the time of the murder of the deceased, he, along with
the appellant, were staying together in room no. 3 of the
building owned by PW3. Learned counsel pointed out the
evidence of PW4 (Salehabanu). In the crossexamination
made by the learned public prosecutor, the witness stated
that she first saw the appellant running towards the stairs
Criminal Appeal No. 3524 of 2023 Page 3 of 12
from the lobby, and immediately after that, the deceased was
found in a heavily bleeding condition. She pointed out that
the witness's evidence proved that the appellant and the
deceased were quarrelling. The witness heard shouts of “save,
save” from the appellant's room. She also pointed out that
even the evidence of PW7 Najma brings on record that she
had seen the deceased bleeding in the gallery of the building
and was shouting “save, save” at that time. The witness saw
the appellant coming down from the building and was seen
cleaning blood stains from his shirt. She pointed out that
even the evidence of PW14 – Sagufta Parvin shows that the
deceased was murdered in room no. 3 where the deceased,
along with the appellant, were staying together. She further
submitted that PW19 was the appellant's employer;
therefore, it was natural that the appellant would confide with
his employer about his guilt. She submitted that there is no
reason to discard the testimony of PW19, which proves extra
judicial confession. Similarly, there is no reason to discard
the testimony of PW24 before whom a dying declaration was
made by the deceased that the appellant murdered him. The
learned counsel submitted that there is no reason to interfere
with the impugned judgments, which contain elaborate
findings recorded after making a detailed analysis of the
evidence of the prosecution witnesses.
CONSIDERATION OF SUBMISSIONS
6. We have minutely scanned the testimony of the
prosecution witnesses. Firstly, we will deal with evidence of
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PW19, who claims that the deceased made an extrajudicial
confession before him. Even though this witness was declared
hostile, the prosecution relied upon a part of his testimony.
We are summarising the statements made by PW19 in his
examinationinchief, in his crossexamination made by the
learned public prosecutor after he was declared hostile and in
the crossexamination made by the learned counsel appearing
for the appellant. The summary of his version is as follows:
a) The appellant worked in his textile store for five
months in 2004 till the first week of September
2004;
b) In September 2004, he received a call from the
appellant around 3.30 p.m. and on the phone, the
appellant informed him that he had killed his
room partner;
c) The appellant called PW19 to the Central Bus
Station near Surat Railway Station;
d) Thereafter, PW19 made a phone call to PSI
Mishra of Limbayat Police Station and called him
to the Central Bus Station;
e) PSI Mishra came to the Central Bus Station, where
they met the appellant. The appellant again
reiterated that there was a quarrel between him
and his room partner over playing a tape recorder,
and that he had murdered his room partner;
Criminal Appeal No. 3524 of 2023 Page 5 of 12
f) PW19 stated that though the appellant had told
him the name of the person who was murdered, he
was unable to recollect the name;
g) In the crossexamination by the learned public
prosecutor, he was confronted with the relevant
part of his statement recorded under Section 161
of the Code of Criminal Procedure, 1973 (for short,
‘CrPC’). He accepted of having made the statement.
He stated that the appellant had told him that he
had murdered Mohmed Akhtar Gafur Ansari;
In the crossexamination made by learned counsel
h)
appearing for the appellant, he stated that PSI
Mishra took the appellant with him, and there
were two or three policemen with him;
i) He did not remember whether he stated to the
police the phone number from which he made a
phone call to PSI Mishra; and
He admitted that he did not disclose the phone
j)
number from which the appellant called him.
7. The normal rule of human conduct is that a person
would confess the commission of a serious crime to a person
in whom he has implicit faith. The appellant had worked in
PW19’s shop only for five months in 2004. The appellant was
otherwise not known to PW19. Therefore, it is unnatural
that the appellant would call the deceased on the phone and
confess. Moreover, PW19 stated that the appellant called him
Criminal Appeal No. 3524 of 2023 Page 6 of 12
to the Central Bus Station after confessing on the phone.
Even this conduct is very unnatural. Furthermore, PW19
admittedly did not disclose to the police the telephone
number from which he allegedly received a call from the
appellant. As can be seen from the testimony of PW25,
Investigating Officer, no investigation was made to ascertain
the phone number on which PW19 received a call from the
appellant and the phone number from which PW19 called
PSI Mishra. It was necessary for the prosecution to collect
evidence on these aspects and place it before the Court.
Though PW19 stated that the appellant again made extra
judicial confession at the Central Bus Station in the presence
of PSI Mishra, the prosecution has not examined PSI Mishra
as a witness. According to the testimony of PW25, statement
of PSI Mishra was not recorded during the investigation. In
any event, the alleged confession made by the appellant
before PSI Mishra cannot be proved against the appellant in
view of Section 25 of the Indian Evidence Act, 1872. Hence,
the prosecution's evidence regarding extrajudicial confession
cannot be believed.
PW19 stated that PSI Mishra and two to three other
8.
constables took the appellant away. Thus, it was PSI Mishra
who took the appellant into custody. Hence, PSI Mishra was a
crucial witness. A vital prosecution witness has been withheld
from the Court. Nothing is placed on record to show that PSI
Mishra made any official record to show that he had taken the
appellant into custody. PW25, the Investigating Officer,
stated that PSI Mishra and other police personnel were
Criminal Appeal No. 3524 of 2023 Page 7 of 12
tracing the appellant in the market as he was working there.
He further noted that PSI Mishra produced the appellant at
the police station and was shown as arrested at 9.30 p.m. on
that day. Thus, PW25 did not state that PSI Mishra went to
the Central Bus Station upon receiving a phone call from PW
19, and that he nabbed the appellant at the Bus Station. The
version of PW25 is entirely different. In the cross
examination, PW25 specifically admitted that he did not
record the statement of PSI Mishra. He stated that he arrested
the appellant when PSI Mishra produced him. Further, in the
crossexamination, PW25 stated that in the panchnama of
arrest, it is not mentioned that PSI Mishra produced the
appellant before him. He stated that he had no information
about the time, in whose presence and from which place PSI
Mishra arrested the appellant. In further crossexamination,
he stated that he was not aware that PSI Mishra met the
appellant at Central Bus Station in the presence of the
appellant’s employer. He denied that PSI Mishra kept the
appellant in custody and produced the appellant before him.
Thus, it is impossible to believe the testimony of PW19 that
he conveyed the appellant's extrajudicial confession to PSI
Mishra. Moreover, the manner in which the appellant was
taken into custody becomes highly suspicious as it is not even
recorded in the arrest panchnama that PSI Mishra arrested
the appellant. Apart from the fact that it is very difficult to
believe that the appellant confessed before PW19, the further
part of the testimony of PW19 makes his testimony extremely
doubtful as the prosecution has withheld PSI Mishra from the
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Court. Therefore, it is not possible to rely upon the evidence of
PW19.
Now, we come to the theory of dying declaration made
9.
by the deceased before PW24. In the examinationinchief,
PW24 stated that after he heard that his friend (deceased)
was injured, he rushed to the site and found that the
deceased was fully covered in blood, and he disclosed that the
appellant was the author of the injuries. In the cross
examination by the learned public prosecutor, he denied
having made such a statement before the police. In the cross
examination by the learned public prosecutor, the witness
was confronted with his prior statement recorded by the
police. The relevant part of the crossexamination reads thus:
“ Such has not happened and been dictated
by me in my statement before police that,
‘Therefore, when I was coming downstairs, I
saw Lal Mohammad, staying with Mohammad
Akhtar, running on the road towards Limbayat
Police Station.
…Therefore, I called rickshaw and landlord
Alimuddin Shaikh and I took Mohammad
Akhtar for treatment in the rickshaw and at
that time, I saw Mohammad Akhtar had
sustained injuries on throat and head and it
was bleeding continuously. At that time, I
asked Mohammad Akhtar and he told me, I
had an altercation and quarrel with Lal
Mohammad, staying with me, regarding playing
a tape recorder and therefore, Lal Mohammad
caused injuries to me using a knife and ran
away.”
Criminal Appeal No. 3524 of 2023 Page 9 of 12
………………………………………………………….. ”
Thus, the witness stated that he did not dictate to the police
the statement with which he was confronted. In the cross
examination by the advocate for the appellant, he admitted
that when he informed Limbayat Police Station, a policeman
came in an autorickshaw. The policeman, along with two or
three other persons, brought the deceased down and put him
in the autorickshaw. The police personnel and the other two
to three persons were not examined as witnesses. He stated
that the deceased was unconscious at that time. So, when
the deceased was put in the autorickshaw, he was not in a
position to speak.
10. At this stage, we may also refer to the testimony of PW
3, who was the complainant and landlord of the appellant. He
stated that when he went to the place where the deceased was
lying in a heavily bleeding condition, the deceased did not
disclose anything to him, and there was no conversation
when the deceased was taken by him by an autorickshaw to
the hospital. Therefore, the prosecution story regarding the
dying declaration made to PW24 does not inspire confidence
at all.
11. Now, we turn to the evidence of the eyewitnesses who
were declared hostile. PW3, according to the prosecution,
was the witness before whom the deceased made a dying
declaration while he was being carried in an autorickshaw.
PW3 did not support the prosecution on this aspect, and PW
24 claimed that when the deceased was put in an auto
Criminal Appeal No. 3524 of 2023 Page 10 of 12
rickshaw, he was not conscious. PW3 stated that he heard a
quarrel between the appellant and the deceased. When the
witness was confronted with his police statement in the cross
examination, he denied having made such a statement. PW
4 was declared as hostile. When he was confronted with
relevant part of his police statement, he denied to have made
the statement.
12. The High Court has relied upon the testimony of PW7,
who was again declared hostile. In the crossexamination
made by the public prosecutor, PW7 accepted that she
informed the police that she saw the appellant going down,
and while going down, he was cleaning the blood off his
clothes. However, in the crossexamination made by the
advocate for the accused, she stated that except for seeing the
deceased in injured condition, she had not seen anything else
and that she was not aware of the persons who were involved
in the incident.
13. The High Court held that the evidence of PW9 Kalu
Shaikh, another hostile witness, proves the appellant's
presence at the time of the incident. In crossexamination by
the advocate for the accused, PW9 stated that he did not
know the appellant and the deceased before the incident. He
stated that he was unable to identify the appellant. He stated
that except for hearing the shouts “save, save,” he knew
nothing.
Criminal Appeal No. 3524 of 2023 Page 11 of 12
14. Therefore, after having carefully perused the evidence of
the hostile prosecution witnesses (PW3 to PW9), we find that
there is nothing in the evidence which could be relied upon by
the prosecution for connecting the appellant with the murder
of the deceased.
15. Thus, the appellant's conviction cannot be sustained for
the above reasons. Accordingly, the appeal is allowed. The
conviction and sentence of the appellant are set aside, and
the appellant is acquitted of the offence alleged against him in
rd
Sessions Case No. 80 of 2005, decided by the 3 Fast Track
Court, Surat arising out of CR No. I/142/2004 of Limbayat
Police Station. The appellant shall be set at liberty unless he
is required to be detained in connection with any other case.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ujjal Bhuyan)
New Delhi;
July 08, 2024
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