SUPREME COURT OF INDIA
Akhlaq
Vs.
State of Uttar Pradesh
SLP (Crl.) 4772 of 2003
(S.H.Kapadia and B.S.Reddy,JJ.,)
19.03.2007
JUDGMENT
S.H.Kapadia, J.,
1. Leave granted.
2. This criminal appeal is directed against the impugned judgment and order
dated 14.7.06 passed by the High Court of Judicature at Allahabad in Criminal
Appeal No.1783 of 1981 against the judgment and order dated 10.8.81 passed by
the Additional Sessions Judge, Bulandshahr in Sessions Trial No.143 of 1980
convicting Akhlaq (accused no.1 - appellant herein) under Section 302 read with
Section 34 Indian Penal Code ('IPC' for short). Appellant has been sentenced to
undergo rigorous imprisonment for life.
3. In short, the prosecution case was as under. A written report (Exhibit Ka.1)
was submitted at the Polic Station Kotwali. This was on 31.7.79 at 6.10 pm. The
written report was submitted by the complainant, Samay Singh (PW.1). In the
report it was stated that when the complainant returned home in village
Tatarpur from his duty, he enquired from his younger daughter about the
whereabouts of his elder daughter Asha (since deceased). The complainant was
informed that Asha had gone to answer nature's call. The complainant also
enquired from his wife, Brahma Devi (PW.2), about Asha. He was told by his wife
that Asha had gone to answer nature's call. However, Asha did not return for
considerable time. The complainant became suspicious. He proceeded to search
out his daughter Asha at 5 pm. When the complainant reached the maize field of
Kanchi he saw a chappal belonging to Asha lying near the boundary of the field.
The complainant entered into the field. He found the dead body of his daughter
Asha inside the field. A Dhoti was tied around her neck and another chappal was
found lying near the dead body of Asha. Her clothes were blood stained. The
complainant further found that the golden ear-rings of Asha were missing from
her body. Asha was around 20 years old. On the basis of Ex. Ka.1 the Head
Constable prepared the F.I.R. The case was registered. The entry was made in
G.D. report. The I.O. recorded the statement of the complainant at the police
station. He then proceeded to the site of occurrence. On reaching the field of
Kanchi the I.O. found the dead body of Asha lying in the field with a Dhoti
tied around her neck. The I.O. prepared the inquest report (Ex. Ka.5). He
prepared the naqsha (Ex.Ka.7). The I.O., after completing the formalities,
handed over the dead body of Asha to constables Bhojvir Singh and Rajvir Singh
for post mortem at the district hospital, Bulandshahr. The possession of the
chappal was also taken vide Ex.Ka.9. The I.O. inspected the spot on 1.8.79. He
prepared the site plan. On 21.8.79 on interrogation Jamil (accused no.2)
confessed his guilt. He also promised to get the golden ear-rings recovered
from the shop of sarraf. He took the I.O. to the shop of the sarraf. The
ear-rings were mortgaged with the sarraf. The name of sarraf was Ram Kishan
(PW. 9). After going through the register Ram Kishan took the ear-rings. The
ear-rings were taken into custody vide Ex.Ka.4. They were sealed in the
presence of Jai Prakash Sharma (PW.10). The necessary formalities were thereafter
completed. The ear-rings recovered from the shop were identified on 28.9.79. On
1.8.79 the post mortem was conducted. According to Dr. Surendra Pal Singh,
Medical Superintendent (PW.14), the death was caused by strangulation. The
doctor found whitish substance near vulva of the deceased. He prepared a slide
and forwarded it to the pathologist. The doctor opined that Asha was possibly
raped. After completing due investigation, the I.O. submitted the charge-sheet.
The three accused Akhlaq (Accused-1), Jamil (Accused-2) and Imtiyaz (Accused-3)
denied the charges. They pleaded non-guilty. The prosecution examined 19
witnesses.
4. In the present case the complainant (PW.1) has proved that he was the father
of Asha. He was an employee in the Civil Hospital Bulandhshahr. His duty hours
were between 8 a.m. and 3 pm. This witness has established that on the fateful
day he returned from the Civil Hospital at 3.30 pm; he enquired about Asha when
he was told that Asha had gone to answer nature's call around 1.30 pm. This led
PW.1 to search out the deceased. The evidence of PW.1 has established that
around 5 pm he reached the field of Kanchi, he entered the field and found the
dead body of Asha with the golden ear-rings missing and her chappal lying near
her body. He also identified the ear-rings later on. The evidence of PW.1 is
corroborated by his wife Brahma Devi (PW.2). Bal Kishan (PW.4) stated that he
was from the same village that he was in his field on the fateful day. At 1.30
pm he was returning from his field when he saw Asha going towards a pond
(pokhar). He saw Asha being followed by Akhlaq (appellant herein). PW.4 further
deposed that in fact Akhlaq (A-1) greeted PW.4. According to PW.4, Asha was
followed by Akhlaq (A-1) and Akhlaq was in turn followed by Babu (Accused-4),
Jamil (A-2) and Imtiyaz (A-3). At 5.30 pm, Bal Kishan (PW.4) was told about the
demise of Asha. Mahesh Chandra (PW.6) deposed that on the fateful day at 8.30
pm when he was near a chabutra he saw Babu and Akhlaq. Babu was also an accused
(since deceased). Mahesh Chandra was a friend of Babu. By 8.30 pm the entire
village had known that the body of Asha was found in the field of Kanchi. PW.6
was told by Babu in presence of Akhlaq (appellant herein) that about three
months prior to the incident Asha had abused him. Babu stated that Asha and
Akhlaq had illicit relationship. Babu told PW.6, in presence of Akhlaq, that on
the date when Asha was murdered Jamil (A-2) had gone to borrow some money from
Babu (A-4). Imtiyaz (A- 3) was present at the house of Babu at that time. Babu,
Imtiyaz and Jamil saw Asha going towards the field of Kanchi followed by
Akhlaq. They followed Akhlaq. Akhlaq and Asha entered into the maize field.
Babu, Imtiyaz and Jamil followed Akhlaq. They saw Akhlaq having sexual intercourse
with Asha. Babu, Jamil and Imtiayaz demanded sexual intercourse which Asha
refused. Thereafter, Babu and Jamil forcibly had sexual intercourse with Asha.
Asha threatened to expose the misdeeds of Babu and Jamil. Babu, therefore, took
the Dhoti of Asha tied it around her neck. The three accused - Jamil, Imtiyaz
and Akhlaq caught hold of Asha. She was strangulated. She died. Jamil removed
the ear- rings. Akhlaq was present. This was the extra judicial confession made
by Babu (A-4), one of the accused, to Mahesh Chandra (PW.6) in the presence of
Akhlaq (appellant herein). This extra judicial confession is the subject-matter
of controversy.
5. Jairam Singh (PW.11) deposed that on the fateful day he saw Asha going
towards the field of Kanchi. She was followed by Akhlaq (appellant herein). The
distance between the two was about 25 steps. He further deposed that Akhlaq was
in turn followed by Imtiyaz (A-3), Jamil (A-2) and Babu (A-4). Dr. Surendra Pal
Singh (PW.14), Medical Superintendent at the Civil Hospital Bulandshahr has
deposed that he did a post mortem on 1.8.79. There were 18 injuries on the body
of Asha. These injuries consisted of abrasions and contusions on the chin,
lips, cheek, nose, forehead, elbows, chest and neck. He also found a whitish
substance in the form of discharge on the vagina. He also found blood on the
thighs. He prepared a slide and forwarded it to Dr. P.C. Agarwal, Pathologist.
According to PW.14 the cause of death of Asha was asphyxia owing to
strangulation. Injury nos.12 and 13 on the body of Asha was on account of
strangulation by Dhoti.
6. On the above evidence, the trial court observed that the present case was
based on circumstantial evidence. It was also based on extra judicial
confession made by Babu (A-4), one of the accused, in presence of Akhlaq
(appellant herein). The trial court observed that in the present case the
recovery of the ear-rings at the instance of Jamil (A-2) from the shop of Ram
Kishan (PW.9) were put for test identification parade when they were correctly
identified by the witnesses. On the evidence of doctor (PW.14), the trial court
held that Asha was raped and strangulated. On the basis of the following
circumstances which were duly proved, the trial court found Akhlaq (appellant
herein) guilty of offence punishable under Section 302 read with Section 34
IPC. In this connection, trial court relied upon the statement of PW.1 and PW.2
that Asha had gone to answer nature's call at 1.30 pm. In this connection, the
trial court also relied upon the evidence of PW.4, BAL Kishan who, as stated
above, deposed that he had seen Asha going towards pokhar (pond). Therefore,
the trial court came to the conclusion that Asha was last seen at 1.30 pm when
she had gone to answer nature's call in the field of Kanchi. This was the first
circumstance which took proved before the trial court. The second circumstance
proved before the trial court was that Asha was followed by Akhlaq (appellant
herein) who in turn was followed by Babu (A-4), Jamil (A-2) and Imtiyaz (A-3).
The trial court relied upon the evidence of PW.11 in this connection. Both
PW.11 and PW.4 had deposed that they had seen the accused going towards the
field of Kanchi. It was contended before the trial court that the evidence of
PW.11 was not reliable since he had denied of having gone to the police
station. In this connection, the trial court observed that PW.13 had proved the
G.D. entry about the registration of the case in which it is mentioned that
PW.11 had come to the police station and, therefore, the trial court saw no
reason to discard the evidence of PW.11. The next circumstance on which the
trial court placed reliance was the finding of the dead body of Asha in the
field of Kanchi. Moreover, the trial court also relied on the recovery of the
golden ear-rings at the instance of Jamil (A-2). On the evidence of extra
judicial confession, the trial court held the evidence of Mahesh Chandra (PW.6)
was fully reliable as far as Akhlaq (appellant herein) is concerned. According
to the trial court, Babu (A-4) had confessed of having committed the offence.
He implicated Akhlaq. According to the trial court, the extra judicial
confession was made by Babu (A-4) in the presence of Akhlaq (A-1) and which
extra judicial confession indicated that Babu had confessed his guilt, he had given
a detailed narration of the facts as to how he reached into the field of
Kanchi, as to how he followed Akhlaq and Asha and he also referred to illicit
relationship between Akhlaq and Asha. In the said confession, on which reliance
has been placed by the trial court, Babu has stated in the presence of Akhlaq
that initially Akhlaq had sexual intercourse with Asha which was seen by Babu,
Jamil and Imtiyaz who showed their intention to have sexual intercourse with
Asha which Asha refused and then thereafter Jamil and Babu had intercourse with
Asha against her consent. When Asha threatened to expose them in the village,
Babu tied her Dhoti around her neck and others caught hold of her hands and
feet. This was the confession made by Babu (A-4) to Mahesh Chandra (PW.6) in
the presence of Akhlaq (appellant herein). The trial court found that PW.6,
Mahesh Chandra, was a close friend of Babu. One of the arguments advanced
before the trial court was that the evidence of the extra judicial confession
cannot be said to be reliable; that it was highly unnatural for Babu (A-4) to
disclose the above story in confidence to Mahesh Chandra (PW.6). The trial
court found that there was no merit in this argument. According to the trial
court, Babu was a good friend of Mahesh Chandra (PW.6); the confession was made
after three days. It was immediately recorded on the next day, that is, on
4.8.79. The trial court observed that although PW.6 was cross- examined at
length all suggestions made to PW.6 were denied. According to the trial court,
the extra judicial confession was made by Babu (A-4) in presence of Akhlaq
(appellant herein) and Akhlaq did not object. The trial court, further found
that the extra judicial confession made by accused Babu stood corroborated by
the medical report. The injuries noted by Dr. Surendra Pal Singh (PW.14) also
corroborated the statements contained in the extra judicial confession. The
various injuries on the lips, nose, cheek, forehead and elbows indicated that
the sexual intercourse was without the consent of Asha. The contents of the
extra judicial confession, therefore, stood corroborated. Similarly, the
physical evidence of the recovery of the dead body from the field of Kanchi,
the recovery of chappal of Asha (deceased) lying near her body and scattering
of the maize plants near her body all corroborated the extra judicial
confession made by Babu (A-4) to Mahesh Chandra (PW.6). In the circumstances,
the trial court came to the conclusion that Jamil (A-2), Imtiaz (A-3) and Babu
(A-4) had seen Akhlaq (appellant herein) following Asha into the field of
Kanchi. They followed Akhlaq. They saw Akhlaq having sex with Asha in the
field. They expressed their desire to have sexual intercourse. Asha refused.
Babu and Jamil had sexual intercourse against her consent. Asha threatened to
expose them. In the circumstances, the accused committed murder of Asha, as
described above. In the circumstances, the trial court held that the
prosecution had proved its case. The trial court held that the evidence of
extra judicial confession was reliable. The evidence of Dr. Surendra Pal Singh
(PW.14) corroborated the version of the prosecution to the effect that Asha was
strangulated after sexual intercourse. In the circumstances, the trial court
held that Jamil (A-2) and Babu (A-4) were guilty of offence under Section 376
IPC; that Akhlaq had illicit relationship with Asha and he had sexual
intercourse with her by her consent hence no offence under Section 376 IPC
stood made out against Akhlaq (appellant herein). However, the trial court held
that Babu (A-4) was guilty of offence punishable under Section 302 and 376 IPC;
that Jamil (A-2) was guilty of offences under Section 302 read with Section 34
and also under Section 376 IPC; that Akhlaq (A-1), appellant herein, and Imtiyaz
(A-3) were found guilty of offences punishable under Section 302 read with
Section 34 IPC.
7. At this stage, we may point that Babu (Accused-4) since died. Akhlaq
(Accused-1), Jamil (Accused-2) and Imtiyaz (Accused-3) carried the matter in
appeal to the High Court. By the impugned judgment the High Court has confirmed
the conviction, referred to above. Hence this criminal appeal. However, the
criminal appeal is preferred only by Akhlaq (A-1), appellant herein, and not by
other two co-accused.
8. At this stage, we may clarify that we are concerned in this criminal appeal
only with the case of Accused no.1 (appellant). Shri P.S. Mishra, learned
senior counsel appearing on behalf of appellant (A-1), submitted that the
judgments of the courts below were mainly based on the extra judicial
confession made by the co-accused Babu (since deceased) to Mahesh Chandra
(PW.6). He submitted that extra judicial confession is no evidence. It is
corroborative in nature. It was urged that there was no evidence except extra judicial
confession to show that Akhlaq (appellant) had followed Asha into the field of
Kanchi. It was urged that except the extra judicial confession there was no
evidence to implicate the Akhlaq (appellant) in the murder of Asha. It was
further submitted that the judgment of this Court in Kashmira Singh v. State
of M.P1. has no application to
the present case. It was urged that in the present case there was no evidence
against Akhlaq (appellant). He urged that whatever evidence is on record is
only against Babu (A-4) and Jamil (A-2). Learned counsel urged that merely
because Akhlaq (appellant) followed Asha into the field of Kanchi, he cannot be
implicated for murder of Asha. Learned counsel also submitted that there was no
evidence of Akhlaq (appellant) attacking Asha or causing any injury to her.
Learned counsel urged that there was no evidence of Akhlaq (appellant) coming
back from the field of Kanchi. He submitted that the High Court has disbelieved
Kallo (PW.3) in that regard. In the circumstances, learned counsel submitted
that the conviction of Akhlaq (appellant) needs to be set aside.
9. We do not find any merit in the above contention. Akhlaq (appellant) stands
convicted with the aid of Section 34. This case concerns circumstantial evidence.
PW.1 and PW.2 have proved beyond shadow of doubt that Asha had gone to answer
nature's call on the fateful day at 1.30 pm. On return from duty her father
went in search of his daughter, Asha. On the boundary of the field of Kanchi he
detected one of the chappals of Asha. Thereupon, he entered the field of
Kanchi. Inside the field he found the dead body of Asha. Near the dead body the
other chappal was recovered. The second circumstance which is relevant is that
Akhlaq (appellant) was seen by Jairam Singh (PW.11). Jairam Singh (PW.11) saw
Akhlaq (appellant) following Asha. He also saw Babu (A-4), Jamil (A-2) and
Imtiyaz (A-3) in turn following Akhlaq (appellant). There is no reason to
disbelieve PW.11. Further the evidence of PW.11 is further corroborated by
PW.4. Both these witnesses had seen Akhlaq (appellant) following Asha into the
field of Kanchi. The third circumstance was the recovery of the dead body of
Asha in the field of Kanchi. The position of the dead body indicated rape and
strangulation. The fourth important circumstance is the injuries noted by Dr.
Surendra Pal Singh (PW.14). The said injuries were present on the lips, cheek,
nose, forehead and elbows of Asha. These injuries show that Asha was assaulted
and that she was forcibly raped. Lastly, each of the above circumstances finds
place in the contents of the extra judicial confession made by Babu (A-4) to
Mahesh Chandra (PW.6) in the presence of Akhlaq (appellant).
10. As stated above Akhlaq (appellant) has been convicted with the aid of
Section 34 IPC. Section 34 gives statutory recognition to the principle that if
two or more persons intentionally do a thing jointly, it is just the same as if
each of them had done it individually. When a criminal act is committed by
several persons in furtherance of the common intention, each of such several
persons is liable. The crucial test as to applicability of constructive
liability is found in the phrase "in furtherance of the common intention
of all". The criminal act for which all the conspirators are sought to be
made liable must be connected with the common intention; that criminal act must
be while executing or carrying out the common intention. To apply Section 34
IPC, two factors must be established (i) common intention and (ii)
participation of the accused in the commission of an offence. If common
intention is proved but if no overt act is attributed to the individual
accused, Section 34 will be attracted as it involves vicarious liability. It is
not possible to have direct evidence of common intention in every matter.
It has to be inferred in appropriate cases from the facts and circumstances of
each case [See: Jai Bhagwan and others v. State of Haryana2. In
the present case, the evidence of PW.11 and PW.4, apart from extra judicial
confession, indicates presence of Akhlaq (appellant) in the field of Kanchi.
Akhlaq (appellant) was seen following Asha. In turn, the other co-accused
followed Akhlaq (appellant). The circumstance of Asha being followed by Akhlaq
(appellant) and Akhlaq (appellant) being followed by the co-accused into the
field, is corroborated by the contents of the extra judicial confession made by
the Babu (A-4) to Mahesh Chandra (PW.6) in presence of Akhlaq (appellant).
11. In the case of Sivarajan v. State3, it
has been held that under Explanation 2 to Section 8 of the Evidence Act if a
man is accused of a crime and he remains silent, his conduct is, coupled with
the statement, in the nature of an admission and, therefore, it will constitute
evidence against himself.
12. In the case of Haroom Haji Abdulla v. State of Maharashtra4 this
Court held that a confession intended to be used against a co-accused stands on
a lower level than the evidence of accomplice because the latter is tested by
cross-examination whilst the former is not. The confession of a co-accused is
not an evidence but if there is other evidence on which a conviction can be
based, they can be referred to as lending assurance to the verdict. It was
further held that although the confession may be taken into consideration
against a co-accused by virtue of Section 30 of the Evidence Act its value is
extremely weak and there could be no conviction without corroboration on
material particulars. In the present case, the extra judicial confession was
made in the presence of Akhlaq (appellant). The conduct of Akhlaq (appellant)
comes within Explanation 2 to Section 8 of the Evidence Act. Under that
Explanation, statements made in the presence of Akhlaq (appellant) are
admissible as the ground work of his conduct. It is a general rule that
statements made in the presence of the accused, which he might have contracted,
if untrue, are evidence against him. This is illustrated by Illustration (f)
and (g) to Section 8 of the Evidence Act. In the present case, the extra judicial
confession made by the co-accused Babu clearly indicates that Asha was followed
by Akhlaq (appellant) who in turn was followed by the other co- accused. The
said extra judicial confession indicates the entry of all accused including
Akhlaq (appellant) into the field of Kanchi. They were seen by Jairam Singh
(PW.11). The evidence of PW.11 stood corroborated by the evidence of PW.4 to
that extent. The extra judicial confession shows that Asha was raped forcibly
and then strangulated. The injuries on the different parts of her body
indicates that she was raped forcibly. This is clear from the testimony of Dr.
Surendra Pal Singh (PW.14). The location of the body in the scattered field
also shows that she was forcibly raped. The strangulation by Dhoti is also one
more circumstance showing how she was murdered. Therefore, each and every
statement made in the extra judicial confession corroborates the evidence of
PW.1, PW.11, PW.4 and PW.14. Moreover, Akhlaq (appellant) remained silent when
confession was made by co-accused Babu to Mahesh Chandra (PW.6). In the said
confession, Babu implicated himself. This conduct of Akhlaq (appellant) has
been noticed by the trial court. The trial court has correctly invoked Section
8 of the Evidence Act while evaluating the extra judicial confession.
Before concluding we may point out that in the present case the courts below
have not relied only upon extra judicial confession as submitted on behalf of
the appellant. In the present case, the extra judicial confession is made in
the presence of Akhlaq (appellant). In the present case the confession is not
behind Akhlaq (appellant). Therefore, the judgment cited on behalf of the
appellant has no application to the facts of the present case.
For the above reasons, we do not find any merit in this criminal appeal and the same is accordingly dismissed.
Judgment Referred.
1(1952) SCR 0526
2AIR 1999 SC 1083
3(1959) KLT 0167
4AIR 1968 SC 0832