TMI Blog2013 (3) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... i) CR No.59 of 2006 at Vasai Road Railway Police Station vii) CR No.156 of 2006 at Borivli Railway Police Station. In all these cases investigation was transferred to the Anti Terrorists Squad, Mumbai (hereinafter referred to as the ATS ), wherein the matter was registered as CR No.5 of 2006. 2. In all 13 accused were arrested in connection with the bomb blasts of 11.7.2006. The accused-respondents herein are the accused in the controversy. Initially the accused-respondents were charged with offences punishable under Sections 302, 307, 326, 427, 436, 20A, 120B, 123 and 124 of the Indian Penal Code, 1860 read with Section 34 of the Indian Penal Code. The accused-respondents were also charged with offences under the Indian Explosives Act, the Prevention of Damage to Public Property Act, the offences under the Indian Railways Act and the offences punishable under the Unlawful Activities (Prevention) Act, 1967. Later, the provisions of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the MCOCA ) were applied to the case. Thereupon, the accused-respondents were charged under Sections 3(1)(i), 3(2) and 3(4) of the MCOCA. On 30.11.2006 the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer to some more facts. As against the accusations contained in Special Case no.21 of 2006, referred to above, in another MCOCA Special Case no.4 of 2009 (hereinafter referred to as Special Case No.4 of 2009 ), it was alleged by the prosecution, that the accused therein were members of the Indian Mujahideen (hereinafter referred to as the IM ). The IM is also allegedly a terrorist organization, blameworthy of such activities within the territorial jurisdiction of India. The investigating agency had been claiming, that all bomb blasts in Mumbai since the year 2005 had been carried out by the IM. During the course of investigation in Special Case no. 4 of 2009, some of the accused therein (Special Case no. 4 of 2009) had confessed that they, as members of the IM had carried out bomb blasts, in Mumbai Suburban trains on 11.7.2006. In fact, the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah , in Special Case no.4 of 2009, had made these confessional statements under Section 16 of the MCOCA. The confessional statement of Sadiq Israr Shaikh was recorded by Vishwas Nangre Patil, Deputy Commissioner of Police (witness at serial no.64). Likewise, the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruddin Shaikh and Ansar Ahmad Badshah during the course of investigation in Special Case no. 4 of 2009. Based interalia on the aforesaid confessional statements, the witness at serial no. 63 had accorded sanction for prosecution of the accused in Special Case no. 4 of 2009. The object of the accused-respondents (of producing these witnesses in defence) is to show, that others are responsible for actions for which the accusedrespondents are being blamed. It is relevant to pointedly notice, that the aforesaid confessional statements were not made by persons who are accused in Special Case no. 21 of 2006 (i.e. they are not coaccused with the accused-respondents). The first question for determination therefore would be, whether the confessional statements recorded before the witnesses at serial nos. 64 to 66, by persons who are not accused in Special Case no. 21 of 2006, would be admissible in Special Case no. 21 of 2006. The instant question will have to be examined with reference to the provisions of the Indian Evidence Act, 1872 (hereinafter referred to as, the Evidence Act) and the MCOCA. Alternatively, the question that would need an answer would be, whether the said confessional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Evidence Act. Alternatively, the question may be determined under a special enactment, which may either make such evidence admissible, or render it inadmissible. The special enactment relied upon in the present controversy is, the MCOCA. Therefore, the questions posed for determination in the present case, will have to be adjudicated on the basis of the provisions of the Evidence Act, and/or the MCOCA. 12. It is relevant in the first instance to describe the expanse/sphere of admissible evidence. The same has been postulated in Section 5 of the Evidence Act. Under Section 5 aforementioned, evidence may be given of every fact in issue and of such other facts which are expressly declared to be relevant , and of no other facts. For the present controversy, the facts in issue are the seven bomb blasts, in seven different first class compartments, of local trains of Mumbai Suburban Railways, on 11.7.2006. Thus far, there is no serious dispute. But then, evidence may also be given of facts which are declared to be relevant under the Evidence Act. Under the Evidence Act, Sections 6 to 16 define relevant facts , in respect whereof evidence can be given. Therefore, Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of truth (See Law of Evidence, by M. Monir, fifteenth edition, Universal Law Publishing Co.). There is, therefore, no dispute whatsoever in our mind, that truth of an admission or a confession can not be evidenced, through the person to whom such admission/confession was made. The position, however, may be different if admissibility is sought under Sections 6 to 16 as a fact in issue or as a relevant fact (which is the second question which we are called upon to deal with). The second question in the present case, we may clarify, would arise only if we answer the first question in the negative. For only then, we will have to determine whether these confessional statements are admissible in evidence, otherwise than, as admissions/confessions. 16. Therefore to the extent, that a confessional statement can be evidenced by the person before whom it is recorded, has been rightfully adjudicated by the High Court, by answering the same in the affirmative. The more important question however is, whether the same would be admissible through the witnesses at serial nos. 63 to 66 in Special Case no. 21 of 2006. Our aforesaid determination, commences from the following paragraph. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untary and fair, i.e., without coercion, threat or promise, if made to a police officer, or while in police custody, the same are rendered inadmissible. Sections 25 and 26 aforesaid, are being reproduced below:- 25. Confession to police officer not to be proved- No confession made to 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. Explanation - In this section Magistrate does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). There is, therefore, a common thread in the scheme of admissibility of admissions/confessions under the Evidence Act, namely, that the admission/confession is admissible only as against the person who had made such admission/confession. Naturally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d those persons who had made these confessions, been accused in Special Case no. 21 of 2006, certainly the witnesses at serial nos. 64 to 66 could have been produced to substantiate the same (subject to the same being otherwise permissible). Therefore, we have no doubt, that evidence of confessional statements recorded before the witnesses at serial nos. 64 to 66 would be impermissible, within the scheme of admissions/confessions contained in the Evidence Act. 20. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, even though Section 30 is not strictly relevant, insofar as the present controversy is concerned, yet the principle of admissibility, conclusively emerging from illustration (b) under Section 30 of the Evidence Act, persuades us to add the same to the underlying common thread, that finds place in the provisions of the Evidence Act, pertaining to admissions/confessions. That, an admission/confession is admissible only as against the person who has made it. 21. We have already recorded above, the basis for making a confessional statement admissible. Namely, human conduct per se restrains an individual from accepting any kind of liability or implication. When such liability and/or implication is acknowledged by the individual as against himself, the provisions of the Evidence Act make such confessional statements admissible. Additionally, since a confessional statement is to be used principally as against the person making it, the maker of the confession will have an opportunity to contest the same under Section 31 of the Evidence Act, not only by producing independent evidence therefor, but also, because he will have an opportunity to contest the veracity of the said conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by us, again by placing reliance on Sections 25 and 26 of the Evidence Act. As already noticed hereinabove, Section 25 makes a confessional statement made to a police officer inadmissible against a person accused of any offence . Likewise, a confessional statement made while in the custody of police cannot be proved as against the person making such confession under Section 26 of the Evidence Act. It is nobody s case, that the instant confessional statements made by the accused in Special Case no. 4 of 2009 are being proved to substantiate the discovery of facts emerging out of such confessional statements. In the aforesaid view of the matter, the exception to Sections 25 and 26 of the Evidence Act contemplated under Section 27 thereof, would also not come into play. Since admittedly the confessional statements, which are sought to be substantiated at the behest of the accused-respondents, were made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, to different police officers (all holding the rank of Deputy Commissioners of Police), we are satisfied, that the said confessional statements are inadmissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the decision in State of Gujarat Vs. Mohammed Atik (supra). Before drawing any conclusion one way or the other, it would be relevant to notice, that in accepting the admissibility of the confessional statement in one case as permissible in another case, reliance was placed by this Court on Section 15 of the TADA. Section 15 of the TADA is being extracted hereunder:- Section 15 Certain confessions made to Police Officers to be taken into consideration- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or coaccused, abettor or conspirator for an offence under this Act or rules made thereunder: Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused. (2) The police officer shall, before recording ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the ingredients contained in the proviso under sub-Section (1) of Section 15 of the TADA, namely, the person who had made the confession, and the others implicated were facing a joint trial. The judgment rendered by this Court in State of Gujarat Vs. Mohammed Atik (supra) has been incorrectly relied upon while applying the conclusions rendered in the same to the controversy in hand, as the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah do not implicate the accused-respondents in Special Case no. 21 of 2006, nor are the accused-respondents herein being jointly tried with the persons who had made the confessional statements. Reliance has not been placed by the accused-respondents, on any provision under the MCOCA, to claim admissibility of the witnesses at serial nos. 63 to 66 as defence witnesses. Nor have the learned counsel for the accused-respondents invited our attention to any other special statute applicable hereto, whereunder such a course of action, in the manner claimed by the respondents, would be admissible. We are, therefore, of the view that the High Court erred in relying on the judgment rendered by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to learned counsel, evidence relating to facts in issue , but pertain to collateral facts . This evidence of a collateral fact, it is contended, can be brought in as evidence only if it is a relevant fact under some provision of the Evidence Act. Such evidence of the police officers, according to learned counsel for the appellant, is not relevant under any provisions of the Evidence Act, certainly not under Section 6 thereof. 27. Such evidence, according to learned counsel, is barred by the rule of hearsay . According to learned counsel, the ban on hearsay evidence does not extend to the rule of res gestae . It is however submitted, that the rule of res gestae is not attracted in the present case, as there is no live link between the occurrence of bomb blasts on 11.7.2006, and the recording of confessional statements two years thereafter. If the accused persons had made such confessional statements immediately after the occurrence of the bomb blasts, as a natural reaction in immediate proximity of the occurrence, so as to constitute a part of the occurrence itself, there may have been a live link between the blasts and the confessional statements, and such confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the occurrence without any long time lag would be admissible under Section 6 of the Evidence Act. Reliance was also placed on decision rendered in Gentela Vijaya Vardhan Rao v. State of A.P., 1996 (6) SCC 241, wherein this Court held, that the principle of law embodied in Section 6 of the Evidence Act, is expressed as res gestae . The rule of res gestae , it was held, is an exception to the general rule, that hearsay evidence is not admissible. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act, it was pointed out, was on account of spontaneity and immediacy of such statement or fact, in relation to the fact in issue . And thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made contemporaneously with the fact in issue, or at least immediately thereupon, and in conjunction therewith. If there is an interval between the fact in issue, and the fact sought to be proved, then such statement cannot be described as falling in the res gestae concept. Reliance from the aforesaid judgment was placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 with reference to the reason for which they are desired to be summoned as defence witnesses. We may first extract Section 6 of the Evidence Act hereunder: 6. Relevancy of facts forming part of same transaction Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the corresponden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for us to further examine, while dealing with the present controversy, whether a confessional statement of an occurrence could/would fall within the realm/expanse of the rule of res gestae , in a given exigency. We, therefore, refrain from recording any conclusions thereon, while dealing with the instant controversy, because such an issue does not arise herein. 31. We shall now endeavour to determine, whether the statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, to the witnesses at serial nos. 64 to 66 are admissible through the said witnesses (at serial nos. 64 to 66) under Section 11 of the Evidence Act. It is pointed out by learned counsel representing the appellant, that in law there is a clear distinction between the existence of a fact , and a statement as to its existence . The evidence of the accused persons in Special Case no.4 of 2009 before the court admitting their guilt would be, according to learned counsel, evidence about the existence of the fact i.e., their culpability and/or responsibility for the bomb blasts of 11.7.2006. The evidence of the police officers, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statements could also not be admitted under Section 32, then they could also not be admitted under Section 11. Learned counsel for the appellant, placed reliance on the following observations recorded in the judgment: It was contended that two documents which are Exs. A-10 and A-11 are admissible in evidence and should not have been rejected by the learned Additional District Judge as irrelevant and inadmissible in evidence. Ex.A-10 is a certified copy of a statement made by defendant 3, the father of the plaintiff respondent, in the revenue Court on 16th February 1925. Ex.A-11 is the statement of the mother of defendant 3 also made in the revenue Court on the same date, i.e., 16th February, 1925. In both these statements the age of defendant 3 is stated to have been at the time of the statements 21 years. We do not see how any of these statements can be admitted in evidence since we are of the opinion that they are statements of living persons who have not been examined as witnesses in the case. If they had been examined as such the statements might have been admissible under the Evidence Act either in corroboration of the statement made by them in Court as witnesses or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon: The deed of adoption was executed by the defendant's adoptive mother, Rani Bishen Kuer, and bears her signature in Gurumukhi. The endorsement of the Sub-Registrar says that she was a purdanasin lady and admitted the execution and completion of the document from behind the purdah of a wooden door leaf. In this document she refers to the fact of having adopted the boy, and that he would be the owner of the entire property of her husband like the begotten son of her husband. She also states that she had performed the adoption ceremonies according to the custom prevailing in her husband's family, and further states at present Basant Singh aforesaid is about one and a half years old. The lady is dead and cannot now be called. The condition required in the opening portion of Section 32, Evidence Act, which alone is relied upon for purposes of admissibility, is therefore fulfilled. The learned advocate for the respondent strongly argues that this document falls within Sub-section 5 of Section 32, and that the statement, inasmuch as it relates to the existence of relationship by blood and adoption, made by a person having a special means of knowledge and at a time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellate survey officer. The learned Subordinate Judge has rejected these documents as irrelevant. Mr. Eajah Ayyar has strongly contested this view of the lower Court. He maintained that they must be held to be admissible under Sections 11 and 13, Evidence Act. The decisions referred to in para. 613 of Taylor on Evidence would support the view that they may be admissible even under Clause 4 of Section 32, Evidence Act, as statements relating to a matter of public or general interest, namely village boundaries. But in view of the observations of their Lordships of the Judicial Committee in Subramanya Somayajulu v. Sethayya (1923) 10 A.I.R. Mad. 1 as to the scope of this clause, we do not feel ourselves at liberty to follow the English cases. Mr. Rajah Aiyar contended that the documents may fall under Clause 3 of Section 32. We are unable to accede to this contention. As regards Section 11, it seems to us that Section 11 must be read subject to the other provisions of the Act and that a statement not satisfying the conditions laid down in Section 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or a relevant fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is outside Section 32. .. Likewise, while referring to the decision in Nihar Bera v. Kadar Bux Mohammed, AIR 1923 Calcutta 290 , it was submitted, that recitals (statements made in a document) would not become a part of evidence, unless the person(s) making the recital(s) is/are brought before the Court when such a person is alive. In the present case also, it was submitted, that the accused in Special Case no.4 of 2009 who had made the confessional statements, are living persons, and unless they are examined, there is no question of accepting their confessional statement. In this behalf, learned counsel relied upon the following conclusions recorded in the aforesaid judgment : In the second place, it has been urged against the judgment of the Subordinate Judge that he placed reliance upon recitals in a deed of release executed by Nanu (the son of Kanu and brother of the two plaintiffs) in favour of the defendant. No doubt the fact that Nanu executed a deed of release constitutes a transaction which is relevant for the purpose of investigation of the question in controversy. But the recitals in the document do not become a part of the evidence. They are assertio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, that even if there was some degree of variance in assuming the aforesaid inference, the confessional statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 would go a long way, to make the existence of culpability of the accused-respondents in Special Case no. 21 of 2006 highly improbable. Thus viewed, it was strongly canvassed at the hands of the learned counsel representing the accused-respondents, that the High Court was fully justified in allowing the accused-respondents to substantiate the confessional statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 through the witnesses at serial nos. 63 to 66. 34. We have given our thoughtful consideration to the plea raised at the hands of the accused-respondents under Section 11 of the Evidence Act. There can certainly be no doubt about the relevance of the confessional statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, as they would clearly demonstrate the inconsistency of the case set up by the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it; and when it pertains to an opinion (or the basis on which that opinion has been arrived at), it must be the statement of the person who has himself arrived at such opinion. Stated differently, oral evidence cannot be hearsay, for that would be indirect/secondary evidence of the fact in issue (or the relevant fact). 35. In order to determine the truthfulness of the confessional statements which are sought to be relied upon by the accused-respondents, it is inevitable in terms of the mandate of Section 60 of the Evidence Act, that the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, who had made the said confessional statements, must themselves depose before a Court for effective reliance, consequent upon the relevance thereof having been affirmed by us under Section 11 of the Evidence Act. We affirm the fine distinction made by the learned counsel for the accused-respondents in pointing out that the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, would only constitute a statement as to the existence of such fact . That would not be direct/primary evidence. The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest - When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant fact. (d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. (e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact. (f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. (g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant. (h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. (i) The question is, whether a given road is a public way. A statement by A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave become incapable of giving evidence, or statements made by persons who cannot be procured without an amount of delay or expense. Neither of these exigencies exists insofar as the present controversy is concerned. The authors of the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009, are very much available and their presence can be procured by the accusedrespondents to be presented as defence witnesses on their behalf. In the aforesaid view of the matter, it is not possible for us to accept, that the accused-respondents can place reliance on Section 32 of the Evidence Act, in order to lead evidence in respect of the confessional statements (made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah), by recording evidence to the statements of the witnesses at serial nos. 63 to 66. 38. It is also essential to notice herein, that in order to render Section 32 of the Evidence Act, admissible for recording the statements of witnesses at serial nos. 63 to 66, in lieu of the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, except a prosecution for giving false evidence by such answer. Without stating anything further, we are satisfied to record, that Section 132 of the Evidence Act clearly negates the basis of the submission, adopted by the learned counsel for the accused-respondents, for being permitted to lead secondary evidence to substantiate the confessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. Accordingly, we hereby reiterate the conclusion drawn by us hereinabove, namely, that the confessional statements made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 cannot be proved in evidence, through the statements of the witnesses at serial nos. 63 to 66. Needless to mention, that the authors of the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) may be produced as defence witnesses by the accused-respondents, for their statements would fall in the realm of relevance under Section 11 of the Evidence Act. And in case Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah appear as defence witnesses in Special Case no. 21 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfession so received to the Special court which may take cognizance of the offence. (5) The person whom a confession had been recorded under subsection (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon. Section 18 of the MCOCA through a non-obstante clause, overrides the mandate contained in Sections 25 and 26 of the Evidence Act, by rendering a confession as admissible, even if it is made to a police officer (not below the rank of Deputy Commissioner of Police). Therefore, even though Sections 25 and 26 of the Evidence Act render inadmissible confessional statements made to a pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of paragraph 29 aforementioned is being reproduced hereunder: 29. The absurdity of such reasoning does not end here. If that the concerned Dy. Commissioners of Police would not be in a position to state whether the facts stated in such confessions were true is a proper ground to disallow their evidence, how can their evidence be given in MCOC Special Case No.4 of 2009? How can they, in that case would be in a position to state so? This problem will come in all the confessions, as the truth of the facts stated in the confession will be known to the confessor, and not to the person to whom it is made. Such person only gives evidence of the fact that a confession was made, and it is the court that decides whether the fact of confession having been made is true and also whether the facts stated in the confession are true. Confessions are treated as circumstantial evidence of the truth of the facts stated therein and it is the court that decides whether the facts stated in the confession should be believed or not in a given case. It is a matter of evaluation of evidence to be done by the Court after it is tendered. There is therefore, no substance in such contentions, which have, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid witnesses are sought to be examined as defence witnesses. The instant aspect of the matter has been dealt with by the MCOCA Special Court in paragraph 5 (of its order dated 1.8.2012) wherein the submission of the counsel representing the accused-respondents was projected as under: In the confession, there is a reference to the blasts in Mumbai after 2005. He gave example stating that in a case where it is alleged that A has committed the blast and he is praying for documents of accused B in some other trial to prove his innocence. B has admitted his guilt in the other case and has also admitted that he has committed the b last in the case of A . A is innocent and he has not committed the blast. In these circumstances can A be hanged? He submits that the confessions are the court documents and the accused want to rely on them. Likewise, the High Court (in the impugned order dated 26.11.2012) had noticed the averments made at the behest of the appellants before it (the accused-respondents herein) in paragraph 30 as under: Again, there exists a difference between the truth of the facts contained in a confession, and the fact that a confession exists. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. It is indeed the persons who had made such confessions who can do so. Since it is the truthfulness of the confessional statements made before the witnesses at serial nos. 63 to 66 which is the real purpose sought to be achieved, we are of the view that only those who had made the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) can vouchsafe for the same. This can only be done under the provisions of the Evidence Act. For that the accused-respondents, can only pin their hopes on the persons who had made the confessional statements. There is certainly no escape from the above course in view of the mandate of Section 60 of the Evidence Act. The effect of Section 60 aforesaid, has been highlighted and discussed above. This would also constitute one of the reasons for accepting the contention advanced before us on behalf of State of Maharashtra. In the background of the object sought to be achieved having been clarified by us, it is apparent, that Sections 35 and 80 would be of no avail to the accusedrespondents in the facts and circumstances of this case, since we have a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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