2007 Supreme(SC) 374

2007(2) Supreme 957
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.H. Kapadia and B. Sudershan Reddy, JJ.
Akhlaq—Appellant
versus
State of U.P.—Respondent
Criminal Appeal No. 372 of 2007
(Arising out of S.L.P. (Crl.) No. 4772 of 2003)
Decided on 19-3-2007
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Ajai Bhalla, Abhinav Jain, Ms. Shefali Jain and Ms. Abha R. Sharma, Advocates.
For the Respondent : Siddhartha Dave, Javed Mahmud Rao, Shahid Ali Rao and Ms. Musharraf Chawdhary, Advocates.

IMPORTANT POINT
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 as illustrated by Illustration (f) and (g) to Section 8 of the Evidence Act.

Headnote:(i) Indian Penal Code, 1860—Section 302/34—Evidence Act, 1872—Section 8, Explanation 2; Illustration (f) and (g)—Common intention to murder—Extra judicial confession made by co-accused in presence of appellant—Conviction of appellant based on—Sustainable—Deceased, a young girl aged 20 years had gone to answer nature’s call on day of incident at about 1.30 p.m.—In the same evening her dead body was found inside the field—Appellant was seen following deceased—PW11 also saw A4, A2 and A3 following appellant—PW6 was told by A4 in presence of appellant that when A4, A2 and A3 saw appellant having sexual intercourse with deceased into the maize field, they also demanded sexual intercourse which deceased refused—Thereafter A4 and A2 had sexual intercourse with her and when deceased threatened to expose misdeeds of A4 and A2, they strangulated her and she was killed—Each and every statement made in the extra judicial confession corroborates evidence of PW1, PW11, PW4 and PW14—Various injuries on body of deceased indicated that intercourse was without consent of deceased—Trial Court held A4 guilty of offence u/ss 302 and 376 IPC, A2 convicted u/s 302/34 IPC while appellant and A3 were found guilty u/s 302/34 IPC—High Court confirmed their convictions—A4 has since died—Appeal filed only by appellant and not by other two co-accused—Whether conviction of appellant with the aid of Section 34 IPC is sustainable—(Yes)—Whether trial Court was justified in invoking Section 8 of the Evidence Act while evaluating the extra judicial confession—(Yes).

       Held : 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).(Para 9)

       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).(Para 10)

       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.(Para 11)

       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.(Para 12)

       (ii) Indian Penal Code, 1860—Section 34—Common Intention—Constructive liability—Phrase ‘in furtherance of the common intention of all’—Criminal act must be while executing or carrying out the common intention.

       Held : 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.(Para 10)

       (iii) Evidence Act, 1872—Section 8, Explanation 2—Statements made in presence of accused accusing him of a crime—If accused remains silent, his conduct is coupled with the statement, in the nature of an admission, an evidence against him—Extra judicial confession made by co-accused in presence of appellant implicating him also—Appellant remained silent when confession made by co-accused—Trial Court was justified in invoking Section 8 of the Act while evaluating extra judicial confession.(Paras 11, 12)

       (iv) Evidence Act, 1872—Section 30—Confession of co-accused—Weak evidence—Although confession may be taken into consideration against a co-accused by virtue of Section 30 of the Act—There can be no conviction without corroboration on material particulars.

       Held : 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.(Para 12)