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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___445______OF 2013 (Arising out of SLP (Crl.) No. 9707 of 2012)

State of Maharashtra …. Appellant

Versus

Kamal Ahmed Mohammed Vakil Ansari & Ors.         …. Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. On 11.7.2006 there were seven bomb blasts in seven different  

first class compartments of local trains of Mumbai Suburban Railways.  

These  bomb  blasts  resulted  in  the  death  of  187  persons.   Severe  

injuries  on  account  of  the  said  bomb  blasts  were  caused  to  829  

persons.  These blasts led to the registration of following seven criminal  

reports:

i) CR No.77 of 2006 at Mumbai Central Police Station. ii) CR No.78 of 2006 at Mumbai Central Police Station. iii) CR No.86 of 2006 at Bandra Railway Police Station iv) CR No.87 of 2006 at Bandra Railway Police Station v) CR No.41 of 2006 at Andheri Railway Police Station. vi) 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.

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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-sheet in CR no.5 of 2006 came to be filed as  

MCOCA Special Case no.21 of 2006 (hereinafter referred to as Special  

Case No.21 of 2006) for offences punishable under Sections 302, 307,  

324, 325, 326, 327, 427, 436, 120B, 121-A, 122, 123, 124A, 201, 212  

Indian Penal  Code,  1860,  read with Sections 3(1)(i),  3(2),  3(3),  3(4),  

3(5), the MCOCA, read with Sections 10, 13, 16, 17, 18, 19, 20, 40 of  

Unlawful Activities (Prevention) Act, 1967, read with Sections 6, 9B of  

the Explosives Act, 1884, read with Sections 3, 4, 5, 6 of the Explosive  

Substances  Act,  1908,  read  with  Sections  3,  4  of  the  Prevention  of  

Damage to Public Property  Act, 1984, read with  Sections 151, 152,  

153, 154 of the Railways Act, 1989, read with Section 12(1)(c) of the  

Passports Act, 1967.   

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3. The prosecution case (in Special Case No.21 of 2006) in brief is,  

that  bombs  were  planted  on  11.7.2006  in  seven  different  first  class  

compartments  of  local  trains  of  Mumbai  Suburban  Railways  by  the  

Students  Islamic  Movement  of  India  (hereinafter  referred  to  as  “the  

SIMI”).   SIMI is a terrorist  organization, the accused-respondents are  

allegedly  its  members.   According  to  the  prosecution,  the  accused-

respondents had conspired to plant bombs at Mumbai’s local trains to  

create panic in furtherance of terrorist activities being carried out by the  

SIMI in India.   

4. Having examined its witnesses, and having placed on the record  

of Special Case No.21 of 2006, the necessary exhibits, the prosecution  

closed its evidence on 4.4.2012.  Thereafter, witnesses were examined  

in defence by the accused-respondents.  On 19.7.2012, accused Nos.2,  

6, 7 and 13 filed an application (at Exhibit 2891) praying for issuance of  

summons to 79 witnesses named therein.  On 24.7.2012, the accused-

respondents  filed  another  application  (at  Exhibit  2914),  again  for  

summoning  defence  witness.   The  application  filed  by  the  accused-

respondents, inter alia, included the names of the following witnesses :

(i) Witness at serial No.63 - Chitkala  Zutshi,   Additional  Chief  Secretary  

(Home Department)

(ii) Witness at serial No.64 - Vishwas Nangre Patil,  

Deputy  Commissioner  of  Police

(iii) witness at serial No.65 - Milind Bharambe,  

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Deputy  Commissioner  of  Police

(iv) Witness at serial No.66 - Dilip Sawant,  

Deputy  Commissioner  of  Police.

5. To appreciate the reason for summoning the witnesses at serial  

nos. 63 to 66, it is necessary to refer 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 of Arif Badruddin Sheikh was recorded by Miland Bharambe,  

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Deputy  Commissioner  of  Police  (witness  at  serial  No.65).   And,  the  

statement  of  Ansar  Ahmad Badshah  was  recorded  by Dilip  Sawant,  

Deputy  Commissioner  of  Police  (witness  at  serial  No.66).   Chitkala  

Zutshi, the then Additional Chief Secretary, Home Department (witness  

at  serial  No.63)  had  granted  sanction  for  the  prosecution  of  the  

aforesaid  accused  in  Special  Case  No.4  of  2009  on  21.2.2009,  by  

relying interalia  on the confessional  statements  made by Sadiq Israr  

Shaikh,  Arif  Badruddin  Shaikh  and  Ansar  Ahmad  Badshah.   The  

accused (respondents herein) desire to produce the witnesses at serial  

nos. 63 to 66, to establish their own innocence.

6. The Trial Court by its order dated 1.8.2012, declined the prayer  

made  by  the  accused-respondents  for  summoning  the  witnesses  at  

serial  Nos.63 to 66.   Dissatisfied with the order  dated 1.8.2012,  the  

accused-respondents preferred Criminal Appeal No.972 of 2012 before  

the High Court of Judicature at Bombay (hereinafter referred to as ‘the  

High Court’).  The High Court by its order dated 26.11.2012 allowed the  

appeal preferred by the accused-respondents.  The operative part of the  

aforesaid order dated 26.11.2012, is being extracted hereunder :

“83. As a result of the aforesaid discussion, it is clear that the  evidence  sought  to  be  adduced  by  the  appellants  is  relevant  and  admissible.   The  appellants  cannot  be  prevented  from bringing  on  record  such  evidence.   The  impugned  order  is  contrary  to  law,  and  needs  to  be  interfered with.

84. The appeal is allowed.  The impugned order is set aside.

85. The appellants shall  be entitled to have the witnesses in  question summoned, and examine them as witnesses for  the defence.

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86. Appeal is disposed of accordingly.”

7. Aggrieved with the order dated 26.11.2012, passed in Criminal  

Appeal No.972 of 2012, the State of Maharashtra preferred the instant  

Special Leave Petition (Crl.) No.9707 of 2012.

8. Leave granted.

9. It  is  necessary  to  first  define  the  contours  of  the  controversy,  

which we are called upon to adjudicate,  in the present  appeal.   The  

accused-respondents press for summoning the witnesses at serial nos.  

63 to 66 as defence witnesses.  The object for summoning the aforesaid  

witnesses is, that the witnesses at serial nos. 64 to 66 had recorded the  

confessional  statements of  Sadiq Israr Shaikh, Arif  Badruddin 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 accused-

respondents 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  co-

accused  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  

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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  statements  are  admissible  under  

Sections 6 and 11 of the Evidence Act not as confessional statements,  

but as “relevant facts”.  The answers of the two alternate questions will  

have  to  be  determined  on  totally  different  parameters,  and  under  

different statutory provisions.  Both the questions are, therefore, being  

examined by us independently hereinafter.

10. Before venturing into the two alternate questions referred to in the  

foregoing paragraph, it is necessary to delineate a few salient features  

on which there is no dispute between the rival parties.  It is not a matter  

of  dispute,  that  confessional  statements  have been made during the  

course of investigation in Special Case no. 4 of 2009.  The aforesaid  

confessional statements were made before the witnesses at serial nos.  

64 to 66.  The witnesses at serial nos. 64 to 66 were then holding the  

rank  of  Deputy  Commissioners  of  Police  (at  the  time  when  the  

confessional  statements  were  recorded).   The  present  appeal  is  a  

proceeding, emerging out of Special Case no. 21 of 2006.  The accused  

in Special Case no. 4 of 2009, are different from the accused in Special  

Case no. 21 of 2006.  Importantly, Special Case no. 4 of 2009, is not  

being jointly tried with Special Case no. 21 of 2006.  The accused in  

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Special Case no. 4 of 2009 (who had made the confessional statements  

under reference), are available.  In other words, those who had made  

the confessional statements (Sadiq Israr Shaikh, Arif Badruddin Shaikh  

and Ansar Ahmad Badshah) before the witnesses at serial nos. 64 to  

66, can be summoned to be produced in Special Case no. 21 of 2006,  

as  defence  witnesses,  at  the  choice  and  asking  of  the  accused-

respondents (in Special Case no. 21 of 2006), for affirming or denying  

the correctness of the confessional statements made by them (before  

the witnesses at serial nos. 64 to 66).  According to the learned counsel  

for  the  appellant,  those  who had  made  the  confessional  statements  

(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)  

before the witnesses at serial nos. 64 to 66, have since retracted their  

confessional statements.  Insofar as the latter aspect of the matter is  

concerned, the same is neither acknowledged nor denied at the behest  

of the accused-respondents.

11. When a question pertaining to the admissibility of evidence before  

an Indian court  arises,  it  has to be determined with reference to the  

provisions  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.

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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, Sections 5 to 16 are the provisions under the Evidence Act,  

which  alone  have  to  be  relied  upon  for  determining  admissibility  of  

evidence.

13. Sections 17 to 31 of the Evidence Act pertain to admissions and  

confessions.   Sections  17  to  31  define  admissions/confessions,  and  

also, the admissibility and inadmissibility of admissions/confessions.  An  

analysis  of  the  aforesaid  provisions  reveals,  that  an  admission  or  a  

confession to be relevant must pertain to a “fact in issue” or a “relevant  

fact”.  In that sense, Section 5 (and consequently Sections 6 to 16) of  

the  Evidence  Act  are  inescapably  intertwined  with  admissible  

admissions/confessions.  It is, therefore, essential to record here, that  

admissibility of admissions/confessions, would depend on whether they  

would fall in the realm of “facts in issue” or “relevant facts”.  That in turn  

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is to be determined with reference to Sections 5 to 16 of the Evidence  

Act.   The  parameters  laid  down  for  the  admissibility  of  

admissions/confessions are, however, separately provided for under the  

Evidence Act,  and as such,  the determination of  admissibility  of  one  

(admissions/confessions) is clearly distinguishable from the other (facts  

in issue/relevant facts).

14. We shall now endeavour to delve into the first question, namely,  

whether  the  confessional  statements  recorded  by  the  three  accused  

(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah,  

in Special Case no. 4 of 2009), before the witnesses at serial nos. 64 to  

66, are admissible as confessions in the trial of Special Case no. 21 of  

2006.  There seems to be a serious dispute between the rival parties,  

whether the deposition in respect of these confessional statements, can  

only be made by producing as witnesses, the person who had made  

such admission/confession; or in the alternative, deposition thereof can  

also be made through the persons before whom such confessions were  

made.   

15. Admissions and confessions are exceptions to the “hearsay” rule.  

The Evidence Act places them in the province of relevance, presumably  

on the ground, that they being declarations against the interest of the  

person making  them,  they are  in  all  probability  true.   The probative  

value  of  an  admission  or  a  confession  does  not  depend  upon  its  

communication  to  another.   Just  like  any  other  piece  of  evidence,  

admissions/confessions can be admitted in evidence only for drawing  

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an  inference  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.

17. The  scheme  of  the  provisions  pertaining  to  

admissions/confessions under the Evidence Act (spelt out in Sections  

17 to 31) makes admissions/confessions admissible (even though they  

are rebuttable) because the author of the statement  acknowledges a  

fact to his own detriment.  This is based on the simple logic (noticed  

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above), that no individual would acknowledge his/her liability/culpability  

unless true.  We shall  determine the answer to the first question, by  

keeping  in  mind  the  basis  on  which,  admissibility  of  

admissions/confessions is founded.  And also, whether confessions in  

this case (made to the witnesses at serial  nos. 64 to 66) have been  

expressly rendered inadmissible, by the provisions of the Evidence Act,  

as is the case set up by the appellant.   

18. An  examination  of  the  provisions  of  the  Evidence  Act  would  

reveal, that only such admissions/confessions are admissible as can be  

stated  to  have  been  made  without  any  coercion,  threat  or  promise.  

Reference in this regard may be made to Section 24 of the Evidence  

Act which provides, that a confession made by an accused person is  

irrelevant in a criminal proceeding, if such confession has been caused  

by  inducement,  threat  or  promise.   Section  24  aforesaid,  is  being  

reproduced below:-

“24. Confession  by  inducement,  threat  or  promise  when  irrelevant in criminal proceeding –  

A confession made by an accused person is irrelevant in a  criminal  proceeding,  if  the  making  of  the  confession  appears  to  the  Court  to  have  been  caused  by  any  inducement,  threat  or  promise,  having  reference  to  the  charge  against  the  accused  person,  proceeding  from  a  person  in  authority  and  sufficient,  in  the  opinion  of  the  Court,  to give the accused person grounds,  which would  appear to him reasonable, for supposing that by making it  he  would  gain  any  advantage  or  avoid  any  evil  of  a  temporal  nature  in  reference  to  the  proceeding  against  him.”

Sections 25 and 26 of  the Evidence Act  exclude,  from the realm of  

admissibility, confessions made before a police officer or while in police  

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custody.  There can be no doubt, that the logic contained in the rule  

enunciated in Sections 25 and 26 is founded on the same basis/truth  

out  of  which  Section  24  of  the  Evidence  Act  emerges.   That  a  

confession should be uninfluenced, voluntary and fair.  And since it may  

not  be  possible  to  presume,  that  admissions/confessions  are  

uninfluenced, voluntary 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, it would be inappropriate  

to implicate a person on the basis of  a statement  made by another.  

Therefore, the next logical conclusion, that the person who has made  

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the admission/confession (or at whose behest, or on whose behalf it is  

made), should be a party to the proceeding because that is the only way  

a confession  can be used against  him.   Reference can be made to  

some  provisions  of  the  Evidence  Act  which  fully  support  the  above  

conclusions.  Section 24 of the Evidence Act leads to such a conclusion.  

Under  Section  24,  a  confession  made  “by  an  accused  person”,  is  

rendered irrelevant “against the accused person”, in the circumstances  

referred  to  above.   Likewise,  Section  25  of  the  Evidence  Act  

contemplates,  that  a  confession  made  to  a  police  officer  cannot  be  

proved “as against a person accused of any offence”.  Leading to the  

inference, that a confession is permissible/admissible only as against  

the person who has made it, unless the same is rendered inadmissible  

under some express provision.  Under Section 26 of the Evidence Act, a  

confession made by a person while in custody of the police, cannot “be  

proved  as  against  such  person”  (unless  it  falls  within  the  exception  

contemplated  by  the  said  Section  itself).   The  gamut  of  the  bar  

contemplated under Sections 25 and 26 of the Evidence Act, is however  

marginally limited by way of a proviso thereto, recorded in Section 27 of  

the  Evidence  Act.   Thereunder,  a  confession  has  been  made  

admissible,  to  the  extent  of  facts  “discovered”  on  the  basis  of  such  

confession  (this  aspect,  is  not  relevant  for  the  present  case).   The  

scheme of the provisions pertaining to admissions/confessions depicts a  

one way traffic.  Such statements are admissible only as against  the  

author thereof.

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19. It is, therefore clear, that an admission/confession can be used  

only as against the person who has made the same.  The admissibility  

of the confessions made by Sadiq Israr Shaikh, Arif Badruddin Shaikh  

and  Ansar  Ahmad  Badshah  need  to  be  viewed  in  terms  of  the  

deliberations recorded above.  The admissibility of confessions which  

have been made by the accused (Sadiq Israr Shaikh, Arif  Badruddin  

Shaikh and Ansar Ahmad Badshah, in Special Case no. 4 of 2009) who  

are not the accused in Special Case no. 21 of 2006, will  lead to the  

clear conclusion, that they are inadmissible as admissions/confessions  

under the provisions of the Evidence Act.  Had 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.  

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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  made  by  one  of  such  persons affecting himself and some other of such persons  is  proved,  the  Court  may  take  into  consideration  such  confession as against such other person as well as against  the person who makes such confession.

Illustrations   

(a) A and B are jointly  tried for  the murder  of  C. It  is  proved  that  A  said  -  "B  and  I  murdered  C".   The  Court may consider the effect of this confession as  against B.

 (b) A is on his trial for the murder of C. There is evidence  

to show that C was murdered by A and B, and that B  said, "A and I murdered C".  

This statement may not be taken into consideration  by the Court against A, as B is not being jointly tried.”

As  is  evident  from  a  perusal  of  Section  30  extracted  above,  a  

confessional statement can be used even against a co-accused.  For  

such admissibility it is imperative, that the person making the confession  

besides implicating himself, also implicates others who are being jointly  

tried with him.  In that situation alone, such a confessional statement is  

relevant  even  against  the  others  implicated.   Insofar  as  the  present  

controversy is concerned, the substantive provision of Section 30 of the  

Evidence Act has clearly no applicability because  Sadiq Israr Shaikh,  

Arif Badruddin Shaikh and Ansar Ahmad Badshah have not implicated  

any of the accused-respondents herein.  The importance of Section 30  

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of the Evidence Act, insofar as the present controversy is concerned,  

emerges from illustration (b) thereunder, which substantiates to the hilt  

one  of  the  conclusions  already  drawn  by  us  above.   Illustration  (b)  

leaves no room for any doubt, that unless the person who has made a  

confessional  statement  is  an  accused  in  a  case,  the  confessional  

statement made by him is not relevant.  None of the accused in Special  

Case no. 4 of 2009 is an accused in Special Case no. 21 of 2006.  As  

such, in terms of illustration (b) under Section 30 of the Evidence Act,  

we  are  of  the  view,  that  the  confessional  statement  made  by  the  

accused  in  Special  Case  no.  4  of  2009,  cannot  be  proved  as  a  

confessional  statement,  in  Special  Case  no.  21  of  2006.   This  

conclusion has been recorded by us, on the admitted position, that the  

accused in Special Case no. 4 of 2009 are different from the accused in  

Special Case no. 21 of 2006.  And further because, Special Case no. 4  

of  2009  is  not  being  jointly  tried  with  Special  Case no.  21  of  2006.  

Therefore, 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  

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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 confessional statement, by  

effectively  cross-examining  the  witness  produced  to  substantiate  the  

same.   Such an opportunity, would also be available to all other co-

accused who would be confronted with a confessional statement made  

by an accused against them (as in Section 30 of the Evidence Act), as  

they  too  would  have  an  opportunity  to  contest  the  confessional  

statement made by the accused, in the same manner as the author of  

the confession.  Illustration (b) under Section 30 of the Evidence Act  

contemplates  a  situation  wherein  the  author  of  the  confessional  

statement  is  not  a  co-accused.   Illustration  (b)  renders  such  

confessional statements inadmissible.  There is, it may be noticed, no  

room for testing the veracity of the said confessional statement, either at  

the hands of the person who made it, or by the person against whom it  

is made.  For adopting illustration (b) under Section 30 to the reasoning  

recorded above, the same be read as under:-

“...This statement may not be taken into consideration by  the  court  against  A (the  accused facing  trial),  as  B (the  person who made the confession) is not being jointly tried.”

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Illustration (b) makes such a confessional statement inadmissible for the  

sole reason,  that  the person who made the confession,  is  not  a co-

accused  in  the  case.   Again,  the  underlying  principle  brought  out  

through illustration (b) under Section 30 of the Evidence Act is, that a  

confessional  statement  is  relevant  only  and  only,  if  the  author  of  

confessional  statement  himself  is  an  accused  in  a  case,  where  the  

confessional statement is being proved.  In the present controversy, the  

authors  of  the  confessional  statements  (Sadiq  Israr  Shaikh,  Arif  

Badruddin  Shaikh  and Ansar  Ahmad Badshah)  are not  amongst  the  

accused in Special Case no. 21 of 2006.  The confessional statements  

made  by  them,  would  therefore  be  inadmissible  (as  

admissions/confessions) in the present case (Special  Case no. 21 of  

2006), as the situation in the present case is exactly the same as has  

been sought to be explained through illustration (b) under Section 30 of  

the Evidence Act.  

22. It is also possible, to determine the admissibility of the statements  

of the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar  

Ahmad  Badshah)  made  to  the  witnesses  at  serial  nos.  64  to  66  

independently  of  the conclusions drawn in the foregoing paragraphs.  

The instant  determination  is  being  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  

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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  inadmissible  

under Sections 25 and 26 of the Evidence Act.

23. The issue of admissibility of the confessional statements made by  

Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah  

before the witnesses at serial nos. 64 to 66, needs to be examined from  

yet  another  perspective.   Learned counsel  for  the respondents  were  

successful in persuading the High Court, that a confessional statement  

made by an accused in one case, could be used in another case as  

well.  In this behalf, the respondents had placed reliance on the decision  

rendered by this  Court  in  State of  Gujarat  Vs.  Mohammed Atik,  AIR  

1998 SC 1686.   In the aforesaid controversy,  the following question,  

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which was framed by the trial  Court,  had come up for  consideration  

before this Court:-

“The question therefore is whether the prosecution be permitted  

to introduce and prove the confessional statement of an accused,  

alleged to have been made during the investigation of  another  

offence  committed  on  a  different  date,  during  the  trial  of  that  

accused in another crime.”

While answering the question extracted above, this Court first examined  

whether the confession relied upon, had been recorded in accordance  

with the provisions of the Terrorist and Disruptive Activities (Prevention)  

Act,  1987  (hereinafter  referred  to  as,  the  TADA).   Having  first  

determined, that the confessional statement under reference had been  

validly  recorded  under  the  TADA,  this  Court  recorded  the  following  

conclusion in answer to the question framed by the trial Court:-

“We have,  therefore,  absolutely  no  doubt  that  a  confession,  if  

usable  under  Section  15  of  the  TADA,  would  not  become  

unusable  merely  because the  case is  different  or  the crime is  

different.  If the confession covers that different crime it would be  

a relevant  item of  evidence in the case in which that  crime is  

under trial and it would then become admissible in the case.”

Based on the conclusion drawn in State of Gujarat Vs. Mohammed Atik  

(supra), the High Court accepted the prayer made by the respondents,  

that the confessional statements made by the accused in Special Case  

no. 4 of 2009, would be admissible in Special Case no. 21 of 2006.  The  

instant legal position is sought to be reiterated before us by the learned  

counsel representing the accused-respondents.

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24. We have given our thoughtful  consideration to the conclusions  

drawn by the High Court 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  co- accused,  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  any  confession  

under subsection (1), explain to the person making it that  he is not bound to make a confession and that, if he does  so, it may be used as evidence against him and such police  officer shall  not  record any such confession unless upon  questioning the person making it, he has reason to believe  that it is being made voluntarily.”

There is no room for any doubt, that Section 15 of the TADA expressly  

makes such confessional statement made by a person admissible not  

only against the person who has made it, but also as against others  

implicated therein,  subject  to the condition,  that  the person who has  

made  the  confession,  and  the  others  implicated  (the  co-accused  –  

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abettor or conspirator) are being “...tried in the same case together...”.  

Therefore,  it  is necessary for us first to specifically highlight,  that the  

admissibility of the aforesaid confessional statements was determined  

not  with reference to the Evidence Act,  but  under  Section 15 of  the  

TADA.  What the High Court, as also the respondents before us have  

overlooked is, that the proviso under sub-Section (1) of Section 15 of  

the TADA expressly postulates, that a confessional statement made by  

an  accused  as  against  himself,  as  also  a  co-accused  (abettor  or  

conspirator)  is  admissible,  provided  that,  the  co-accused  (abettor  or  

conspirator) is being tried in the same case together with the accused  

who had made the confession.  The proviso under sub-Section (1) of  

Section 15 of the TADA is founded on the same principle,  which we  

have  referred  to  hereinabove,  while  analyzing  Section  30  of  the  

Evidence Act.  The link for determining admissibility is not case specific.  

A confessional statement may be admissible in any number of cases.  

Or none at all.  To determine admissibility the test is, that the author of  

the confessional statement must be an accused, in the case (in which  

the confessional statement is admissible).  And in case it is to be used  

against  persons other than the author of  the confessional  statement,  

then besides the author, such other persons must all be co-accused in  

the case.  It is therefore apparent, that the confessional statement made  

by  an  accused  was  held  to  be  relevant  in  State  of  Gujarat  Vs.  

Mohammed Atik (supra) under Section 15 of the TADA, on the fulfilment  

of the condition, that the same was recorded in consonance with the  

provisions of the said Act, as also, the satisfaction of the ingredients  

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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  Court  in  State  of  Gujarat  Vs.  Mohammed Atik  (supra)  while  

determining the controversy in hand.

25. We  shall  now  endeavour  to  delve  into  the  second  question,  

whether  the  confessional  statements  recorded  by  the  three  accused  

(Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah),  

in Special Case no. 4 of 2009, before the witnesses at serial nos. 64 to  

66, are admissible in Special Case no. 21 of 2006, by producing the  

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persons  before  whom  the  confessional  statements  were  made  (the  

witnesses  at  serial  nos.  64  to  66)  as  defence  witnesses,  under  the  

Evidence Act.  On the instant aspect of the matter, the submission of  

the accused-respondents has been,  that  the same satisfy the test  of  

being “relevant facts” under Sections 6 and 11 of the Evidence Act.  We  

shall now record our conclusions separately for each of the aforesaid  

provisions.

26. Are 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, admissible under Section  

6 of the Evidence Act as “relevant facts”?  The accused-respondents  

emphatically claim that they are.  The contention of the learned counsel  

for the appellant is, however, that the evidence of three police officers  

(all  holding  the  rank  of  Deputy  Commissioners  of  Police)  and  the  

Additional Chief Secretary (Home Department) relating to confessions  

made by accused in Special Case No.4 of 2009 is hit by the “hearsay  

rule”.  In this behalf  it  is pointed out, that the blasts in question took  

place on 11.7.2006 while the confessions were recorded in October,  

2008.  It is therefore pointed out, that the confessional statements were  

recorded after two years of the occurrence of the fact in issue.  Section  

6 of the Evidence Act, according to learned counsel, partially lifts the  

ban  on  the  “hearsay  rule”,  if  the  evidence  which  is  sought  to  be  

produced, can be said to be so connected to a “fact in issue” as to form  

a part of it.  It is contended, that the “fact in issue”, is the bomb blasts  

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that  took  place  in  local  trains  of  Mumbai  Suburban  Railways,  on  

11.7.2006.   The  confessional  statements  recorded  after  two  years  

cannot be said to be a part of the said “fact in issue”, so connected to it,  

as  to  form  a  part  of  it.   The  evidence  of  police  officers  about  the  

confessions made by the accused in Special Case No.4 of 2009 is not,  

according 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  

confessional  statements,  may have been perceived as a  part  of  the  

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same, and therefore, may (in such eventuality) have been admissible  

under Section 6 of the Evidence Act.  The statement of the accused in  

Special Case no. 4 of 2009, according to learned counsel, cannot for  

the  reasons  mentioned  above,  be  treated  as  part  of  the  same  

transaction, as the transaction of bomb blasts of 11.7.2006.  

28. In order to substantiate his aforesaid contention, learned counsel  

for  the  appellant  placed  reliance  on  the  decision  rendered  in  

Venkateshan v. State,  1997 Cr.LJ 3854,  wherein Madras High Court  

held, that in a murder case where the accused who had assaulted the  

deceased, had made a statement about the assault to the brother of the  

deceased, within half an hour of the act, the evidence of the brother was  

held to be “res gestae”, and therefore, admissible under Section 6 of the  

Evidence Act.  It was submitted, that only such a fact as is so connected  

to a “fact in issue”, so as to be treated as a part of it, would constitute  

“res  gestae”,  and would  not  be excludable  by  the “rule  of  hearsay”.  

Relevant observations from the aforesaid judgment, which were brought  

to our notice, are being extracted hereunder:

“17. The above proposition of law has been laid down by the  Apex Court and the same followed by other Courts.  We  have  to  see  whether  there  is  an  interval  or  time  lag  between the act committed by the accused and the time of  statement given to the witnesses and was it a long one so  as to give time or opportunity for fabrication.  In the instant  case  the  occurrence  took  place  at  11.30  p.m.,  and  the  statement made by the appellant to P.W. 1 at 12 mid night  i.e. half-an-hour later.  In the light of the facts of this case, it  cannot be stated that there is a long interval so as to given  opportunity for any fabrication.  After the occurrence was  over,  P.W.  2  and  P.W.  3  informed  to  P.W.  1  and  immediate4ly  on receipt  of  the information  rushed to the  house  of  the  appellant  where  the  appellant  was  found  

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standing near the victim.  Therefore, as per illustration (a)  to Section 6 of the Evidence Act-

“Whatever was said by the accused to the witness  shortly after the occurrence also would form part of  the transaction and so it has to be considered to be  the relevant facts and circumstances of the case.”

18. Therefore we hold that the statement made by appellant to  P.W. 1 immediately 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  on  the  

following observations:

“15. The principle or law embodied in Section 6 of the Evidence  Act is usually known as the rule of res gestae recognized in  

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“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  correspondence in which it is contained, are relevant facts,  though they do not contain the libel itself.

 (d) The question is whether certain goods ordered from B were  

delivered  to  A.  the  goods  were  delivered  to  several  intermediate  persons  successively.  Each  delivery  is  a  relevant fact.”

In our considered view, the test to determine admissibility under the rule  

of “res gestae” is embodied in words “are so connected with a fact in  

issue as to form a part of the same transaction”.  It is therefore, that for  

describing  the concept  of  “res  gestae”,  one would need to examine,  

whether the fact is such as can be described by use of words/phrases  

such  as,  contemporaneously  arising  out  of  the  occurrence,  actions  

having a live link to the fact, acts perceived as a part of the occurrence,  

exclamations (of hurt, seeking help, of disbelief, of cautioning, and the  

like) arising out of the fact, spontaneous reactions to a fact, and the like.  

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It  is  difficult  for  us to describe illustration (a)  under  Section 6 of  the  

Evidence Act, specially in conjunction with the words “are so connected  

with a fact  in issue as to form a part  of  the same transaction”,  in a  

manner  differently  from the  approach  characterized  above.   We are  

satisfied,  that  the  confessional  statements  recorded  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. 63 to 66 do  

not  satisfy  the ingredients  of  the rule of  “res  gestae”  incorporated in  

Section 6 of the Evidence Act.  This is so because the statements made  

by  Sadiq  Israr  Shaikh,  Arif  Badruddin  Shaikh  and  Ansar  Ahmad  

Badshah, cannot be said to have contemporaneously arisen along with  

the  bomb  blasts  of  11.7.2006,  which  is  the  “fact  in  issue”.   The  

confessional  statements  of  the  accused  (Sadiq  Israr  Shaikh,  Arif  

Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of  

2009 cannot be perceived to be part of the said “fact in issue”.  The  

statements  made  by  Sadiq  Israr  Shaikh,  Arif  Badruddin  Shaikh  and  

Ansar Ahmad Badshah are most certainly not, spontaneous reactions  

arising out  of  the bomb blasts  of  11.7.2006.   The statements  under  

reference are not reactions of the kind referred to above.  Our above  

inferences are fully substantiated, if  examined in conjunction with the  

legislative  illustrations  incorporated  under  Section  6  of  the  Evidence  

Act.

30. It is not necessary for us to further examine, while dealing with  

the  present  controversy,  whether  a  confessional  statement  of  an  

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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  submitted,  is  not  about  the  

existence of  such fact,  but  is  about  recording  “a statement  as to its  

existence”.  It is therefore clear, according to learned counsel, that the  

evidence of the police officers would not be permissible under Section  

11 of the Evidence Act, because the evidence of the witnesses at serial  

nos.  63  to  66  fall  in  the  latter  category  of  “a  statement  about  the  

existence of a fact”.  Moreover, it is contended, that it would be clearly  

hit by the “rule of hearsay”.   

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32. The  second  contention  advanced  on  behalf  of  the  learned  

counsel for the petitioner was aimed at determining the relevance of the  

witnesses at serial nos. 63 to 66, with reference to Section 11 of the  

Evidence  Act.   According  to  the  learned  counsel  for  the  appellant,  

Section 11 makes the “existence of facts” relevant and admissible, and  

not “a statement as to such existence”.  For this learned counsel for the  

appellant placed reliance on Munna Lal v. Kameshwari, AIR 1929 Oudh  

113.  In this case the question was, whether the defendant no.3 was a  

major when he executed the disputed mortgage deed.  The evidence  

sought to be given comprised of two documents i.e., Exhibit A-10 and A-

11.  These documents were held to be inadmissible by the trial court.  

Exhibit A-10 was the certified copy, of a statement made by defendant  

no.3  in  the  Revenue  Court  on  16.2.1925;  and Exhibit  A-11  was the  

statement of the mother of defendant no. 3, before the Revenue Court,  

on the same day.  In both the statements the age of defendant no. 3  

was stated as 21 years.  The High Court held, that these statements  

could not be admitted, as they were statements of living persons, who  

had not been examined as witnesses in the case.  If they had been  

examined,  their  statements  might  have  been  admissible,  under  the  

Evidence  Act  (either  in  corroboration,  or  in  contradiction  of  the  

statements so made).  Since neither defendant no. 3, nor the mother of  

defendant no. 3, were examined as witnesses, therefore, the statements  

were considered as not admissible.   The High Court however further  

held,  that  both  the  persons  being  living  persons,  their  statements  

recorded  earlier  (on  16.2.1925)  could  not  have  been  considered  

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admissible under Section 32(5) of the Evidence Act.  The High Court  

also  rejected  the  contention,  that  the  aforesaid  statements  were  

admissible under Section 11 of the Evidence Act.  The court held, that if  

the said 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 contradiction  of  the  statements  so  made.   We,  however,  find  that  neither  defendant 3 was put into the witness-box, nor was the mother of  defendant  3  examined  as  a  witness  in  the  case.   It  was also  admitted  that  both  the  persons  being  living  persons  their  statements  could  not  have  been  considered  to  have  been  admissible under S.32,  Cl.(5),  Evidence Act.   It  was,  however,  contended by the learned counsel  for  the appellant  that  these  statements were admissible under S.11, Evidence Act.  We are of  opinion that before a fact can be considered to be relevant under  S.11 of the Act it must be shown that it is admissible.  It would be  absurd to hold that every fact, which even if it be inadmissible and  irrelevant, would be admissible under S.11.  We are supported in  this view by the observations of their Lordships of the Allahabad  High Court in Bala Ram v. Mahabir Singh, (1912) 34 All.341.  An  attempt was made in that case, as has been done in this case, to  admit in evidence the deposition made by a person who though  deceased, did not fall within the provisions of S.32, Evidence Act,  on the ground that the provisions of S.11 of the Act would make  such evidence admissible.   It  was observed by their  Lordships  

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that this argument could not be accepted because if a particular  deposition could not be admitted under the provisions of  S.32,  Evidence Act, it could not be held to be admissible under S.11 of  the  said  Act.   We  are  therefore  of  opinion  that  the  learned  Additional District Judge was correct in holding that Exs. A-10 and  A-11 which are statements of living persons who have not been  examined as witnesses in this case are inadmissible in evidence  and  cannot  be  relied  upon  in  proof  of  the  allegations  of  the  defendants appellants that defendant 3 was a major at the time  when he executed the deed.”

In order to substantiate the same contention, reliance was also placed  

on  the  decision  rendered  by  the  Allahabad  High  Court  in  Mt.Naima  

Khatun v. Basant Singh, AIR 1934 Allahabad 406.  It was submitted,  

that  the High Court  had concluded in the aforesaid judgment,  that  a  

statement which is not admissible under Section 32 of the Evidence Act,  

would  also  not  be  admissible  under  Section  11.   And  further,  that  

Section  11  makes  the  “existence  of  fact”  admissible,  and  not  “a  

statement as to its existence”.  Our attention was invited to the following  

observations recorded in the judgment relied 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 when no  question  in  dispute  had  arisen, was admissible in evidence. There can be no doubt that  

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the rule of English Law is particularly strict, and the admission of  hearsay evidence in pedigree cases is confined to the proof of  pedigree and does not apply to proof of the facts which constitute  a pedigree, such as birth, death and marriage, when they have to  be  proved  for  other  purposes.  In  Haines  v.  Guthrie  (1883)  13  Q.B.D. 818 an affidavit filed by the defendant's father stating the  date of the defendant's birth in an action to which the plaintiff had  not been a party was held inadmissible as evidence of the age of  the defendant in support of his defence. In India we have Section  32,  Evidence  Act,  which  does  not  seem  to  be  so  strict.  It  is  however clear that if a statement does not fall within Section 32, it  could not be admissible under Section 11 of the Act: Bela Ram v.   Mahabir Singh (1912) 34 All. 341 and Munna  Lal v. Kameshari   Dat A.I.R.  1929  Oudh  113.  Obviously  there  is  a  difference  between  the  existence  of  a  fact  and  a  statement  as  to  its  existence. Section 11 makes the existence of  facts admissible,  and not statements as to such existence,  unless of course the  fact of making that statement is itself a matter in issue.”

Learned counsel for the appellant also placed reliance on A.PL.S.V.L.  

Sevugan Chettiar v. Raja Srimathu Muthu Vijaya Raghunath, AIR 1940  

Madras 273, wherein it has been held, 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  

under  Section  11,  merely  on  the  ground,  that  if  admitted  it  may  

probabilise or improbabilise a fact in issue or a relevant fact.  Reference  

was made to the following observations noted therein:

“11. We may here refer to one other set of documents relied on  by  the  defendants  which  if  admissible,  will  be  very  strong  evidence in support of the defendants' case. Exs. 1, 1-a, 4, 5 and  6 are a group of documents relating to plots adjacent to the pond  marked Neeranikuttai, just to the west of the point marked J-l in  Ex.  L.  The  bearing  of  these  documents  on  the  present  controversy  is  that  in  all  of  them  the  property  dealt  with  is  described as situate in Iluppakkudi. If they are admissible, they  will  cearly  show  that  Iluppakkudi  limits  extended  even  further  south of the line fixed by the 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  

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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.”

Our attention was also drawn to the decision rendered by the Bombay  

High Court in R.D. Sethna v. Mirza Mahomed Shrazi (No.4), (1907) 9  

Bombay Law Reporter 1047, wherein it was held as under:

“…..  There  is  a  test,  a  simple  and  a  sufficient  test,  which  reasonably  applied  yields  consistent  and  intelligible  results.  Section  32  imposes  restrictions  upon  the  admissibility  of  statements made by persons who cannot be brought before the  Court to give their own evidence. The object of those restrictions  and the reason for them are plain. The basic: principle of legal  evidence  being  that  the  Court  must  always  have  the  best,  it  follows that where persons can be, they must be brought before  the Court to tell what they know at first hand. Their veracity can  then  be  best  tested  by  the  art  of  cross-examination.  Where  however  witnesses  cannot  be  brought  before  the  Court,  their  previous statements are at best indirect evidence of a kind that a  Court  would  not,  except  under  necessity,  receive  at  all.  The  conditions  which  when  compelled  by  necessity  to  take  this  evidence or none, are imposed upon its admissibility plainly aim  at  affording  some guarantee  of  its  truth.  As there  is  to  be no  chance of testing the man by cross-examination his statement will  not be admitted unless it has been made under conditions which,  looking to the ordinary course of human affairs, raise pretty strong  presumptions that it was a true statement. Thus the whole scope  and object of Section 32 centre upon securing the highest degree  of truth possible in the circumstances for the statement.  And it  follows  that  where  the  person  tendering  such  a  statement  is  indifferent as to its truth or falsehood there is nothing to bring that  section  into  play.  Briefly  the  test  whether  the  statement  of  a  person who is dead or who cannot  be found is relevant  under  Section  11  and  admissible  under  that  section,  (presuming  of  

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course  that  it  is  in  other  respects  within  the  intention  of  the  section) although it would not be admissible under Section 32 is  this.  It  is  admissible  under  Section  11  when  it  is  altogether  immaterial whether what the dead man said was true or false, but  highly  material  that  he  did  say  it.  In  these  circumstances  no  amount of cross-examination could alter the fact, if it be a fact that  he did say the thing and if nothing more is needed to bring the  tiling said in under Section 11, then the 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 assertions by a person who is  alive and who might have been brought before the Court if either  of  the  parties  to  the  suit  had  so  desired.   This  distinction  is  frequently overlooked and when a document has been admitted  in evidence as evidence of a transaction the parties are often apt  to refer to the recitals therein as relevant evidence.”

33. Before dwelling on the issue in hand, it is necessary to extract  

herein  Section  11  of  the  Evidence  Act.   The  same  is  accordingly  

reproduced hereunder:-

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“11. When facts not  otherwise relevant  become relevant  -  Facts not otherwise relevant, are relevant-

(1) if  they  are  inconsistent  with  any  fact  in  issue  or  relevant fact;

 (2) if  by  themselves  or  in  connection  with  other  facts  

they make the existence or non-existence of any fact  in  issue  or  relevant  fact  highly  probable  or  improbable.

Illustrations

(a) The question is, whether A committed a crime at Calcutta  on a certain day.

The fact that, on that day, A was at Lahore is relevant.   

The fact that, near the time when the crime was committed,  A was at a distance from the place where it was committed,  which  would  render  it  highly  improbable,  though  not  impossible, that he committed it, is relevant.

 (b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been  committed either by A, B, C or D. Every fact which shows  that the crime could have been committed by no one else  and  that  it  was  not  committed  by  either  B,  C  or  D  is  relevant.”

A perusal of Section 11 aforesaid reveals, that facts inconsistent with  

“facts in issue” are included in the realm of relevance.  Likewise, facts  

which make the existence or non-existence of a “fact in issue” highly  

probable  or  improbable,  have  also  been  included  in  the  realm  of  

relevance.  Insofar as the present controversy is concerned, it  is the  

contention of the learned counsel for the accused-respondents, 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, to the witnesses at serial nos. 64 to 66, would positively bring the  

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said confessional  statements within the realm of relevance, since the  

said confessions would be clearly inconsistent with the culpability of the  

accused in Special Case no. 21 of 2006.  It was submitted at the behest  

of  the  accused-respondents,  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  prosecution  against  the  accused-respondents  in  

Special Case no. 21 of 2006.  In such an eventuality, there would also  

be  no  doubt,  that  the  prosecution  case  would  be  rendered  highly  

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improbable.  The only serious concern however, to our mind, is whether  

the said evidence is admissible, as is the case set up by the accused-

respondents, through the witnesses at serial nos. 63 to 66.  Insofar as  

the instant aspect of the matter is concerned, reference may be made to  

Section 60 of the Evidence Act, which is being extracted hereunder:-

“60. Oral Evidence must be direct - Oral evidence must, in all  cases, whatever, be direct; that is to say;  

If  it  refers to a fact  which could be seen,  it  must be the  evidence of a witness who says he saw it;  

 If it  refers to a fact which could be heard, it  must be the  evidence of a witness who says he heard it;

 If it refers to a fact which could be perceived by any other  sense or in any other manner, it must be the evidence of a  witness who says he perceived it by that sense or in that  manner;

 If  it  refers  to an opinion or  to  the grounds  in which that  opinion is held, it must be the evidence of the person who  holds that opinion on those grounds:

 Provided  that  the  opinion  of  experts  expressed  in  any  treatise  commonly  offered  for  sale,  and  the  grounds  on  which  such  opinions  are  held,  may  be  proved  by  the  production of such treatise if the author is dead or cannot  be found, or has become incapable of giving evidence, or  cannot be called as a witness without an amount of delay  or expense which the Court regards as unreasonable:

 Provided also that, if oral evidence refers to the existence  or condition of any material thing other than a document,  the Court may, if it thinks fit, require the production of such  material thing for its inspection.”

A perusal of Section 60 aforementioned leaves no room for any doubt,  

that oral evidence in respect of a fact, must be of a primary nature.  It  

would be evidence of a primary nature, if it satisfies the state of facts  

described  as  “direct”  in  Section  60  extracted  above.   Illustrative  

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instances of direct/primary evidence, are expressed in Section 60 itself.  

When it pertains to a fact which can be seen, it must be the statement of  

the person who has himself seen it; if when it refers to a fact which can  

be perceived, it must be the statement of the person who has perceived  

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 would  

clearly fall in the mischief of the “hearsay rule”.  In order to be relevant  

under Section 11 of the Evidence Act, such statement ought to be “a  

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statement about the existence of a fact”, and not “a statement as to its  

existence”.  In our considered view, therefore, whilst it is permissible to  

the accused-respondents to rely on the confessional statements made  

by  Sadiq  Israr  Shaikh,  Arif  Badruddin  Shaikh  and  Ansar  Ahmad  

Badshah, it is open to them to do so only through the persons who had  

made the confessional statements.  By following the mandate contained  

in  Section  60  of  the  Evidence  Act,  it  is  not  open  to  the  accused-

respondents, in view of the expressed bar contained in Section 60 of  

the  Evidence  Act,  to  prove  the  confessional  statements  through  the  

witnesses at serial nos. 63 to 66.  In the aforesaid view of the matter, it  

is not possible for us to accept the plea advanced at the hands of the  

learned  counsel  for  the  accused-respondents,  that  they  should  be  

permitted to prove the confessional statements through the witnesses at  

serial nos. 63 to 66.

36. It  is  necessary  in  connection  with  the conclusion  drawn by us  

hereinabove, to deal with the submission advanced at the hands of the  

learned counsel for the accused-respondents, even on the touchstone  

of  Section  32  of  the  Evidence  Act.   Section  32  aforesaid  is  being  

extracted hereunder:-

“32. Cases in which statement  of  relevant  fact  by person  who  is  dead  or  cannot  be  found,  etc.,  is  relevant  –  Statements, written or verbal, of relevant facts made by a  person who is dead, or who cannot be found, or who has  become incapable of giving evidence, or whose attendance  cannot be procured without an amount of delay or expense  which, under the circumstances of the case, appears to the  Court  unreasonable,  are themselves relevant  facts in the  following cases:-  

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(1) when  it  relates  to  cause  of  death -  When  the  statement is made by a person as to the cause of his  death,  or  as  to  any  of  the  circumstances  of  the  transaction which resulted in his death,  in cases in  which the cause of that person's  death comes into  question.

 Such  statements  are  relevant  whether  the  person  who made them was or was not, at the time when  they  were  made,  under  expectation  of  death,  and  whatever  may  be  the  nature  of  the  proceeding  in  which the cause of his death comes into question.

 (2) or  is  made  in  course  of  business -  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 existence of relationship - When the  

statement relates to the existence of any relationship  by blood, marriage or adoption between persons as  to whose relationship by blood, marriage or adoption  the person making the statement had special means  of  knowledge,  and  when the  statement  was  made  before the question in dispute was raised.

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(6) or is made in will or deed relating to family affairs  - When the statement relates to the existence of any  relationship by blood, marriage or adoption between  persons deceased, and is made in any will or deed  relating to the affairs of the family to which any such  deceased  person  belonged,  or  in  any  family  pedigree, or upon any tombstone, family portrait, or  other  thing  on  which  such  statements  are  usually  made, and when such statement was made before  the question in dispute was raised.

 (7) or in document relating to transaction mentioned  

in section 13, Clause (a). - When the statement is  contained in any deed, will or other document which  relates  to any such transaction as is  mentioned in  Section 13, Clause (a).

 (8) or  is  made  by  several  persons  and  expresses  

feelings relevant to matter in question - When the  statement was made by a number of persons, and  expressed  feelings  or  impressions  on  their  part  relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B ; or A dies of injuries received in a transaction in the course of  which she was ravished. The question is, whether she was  ravished by B; or The  question  is,  whether  A  was  killed  by  B under  such  circumstances that a suit would lie against B by A's widow.

Statements made by A as to the cause of his or her death,  referring  respectively  to  the  murder,  the  rape,  and  the  actionable wrong under consideration, are relevant facts.

 (b) The question is as to the date of A's birth.  

An entry in the diary of a deceased surgeon, regularly kept  in the course of business, stating that, on a given day he  attended  A's  mother  and  delivered  her  of  a  son,  is  a  relevant fact.

 (c) The question is, whether A was in Calcutta on a given day.  

A statement in the diary of a deceased solicitor, regularly  kept in the course of business, that,  on a given day, the  solicitor attended A at a place mentioned, in Calcutta , for  the purpose of conferring with him upon specified business,  is a relevant fact.

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 (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, a deceased headman of the village, that  the road was public, is a relevant fact.

 (j) The question is, what was the price of grain on a certain  

day in a particular market. A statement of the price, made  by a deceased banya in the ordinary course of his business  is a relevant fact.

 (k) The question is, whether A, who is dead, was the father of  

B.  

A statement by A that B was his son, is a relevant fact.   

(l) The question is, what was the date of the birth of A.  

A letter from A's deceased father to a friend, announcing  the birth of A on a given day, is a relevant fact.

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(m) The question is, whether, and when, A and B were married.  

An entry in a memorandum-book by C, the deceased father  of B, of his daughter's marriage with A on a given date, is a  relevant fact.

 (n) A  sues  B  for  a  libel  expressed  in  a  painted  caricature  

exposed  in  a  shop  window.  The  question  is  as  to  the  similarity of the caricature and its libellous character. The  remarks of a crowd of spectators on these points may be  proved.”

According to the learned counsel for the accused-respondents, Section  

32 expressly legitimises hearsay evidence pertaining to the cause of a  

person’s death, or the circumstances of the transaction which resulted  

in a person’s death.  Whilst the aforesaid submission is correct, it is not  

possible for us to accept the same as extendable, to the present case.   

37. A  perusal  of  Section  32  reveals,  that  it  is  permissible,  while  

leading evidence relating to the cause of a person’s death or relating to  

the circumstances which resulted in his death, to produce in evidence  

statements, written or verbal, made by a person who has since died, or  

by the persons who cannot be found, or by those who have become  

incapable of giving evidence, or by those whose attendance cannot be  

procured  without  an  amount  of  delay.   It  is  clear,  that  secondary  

evidence  is  permissible  when  the  issue  relates  to  the  cause  of  a  

person’s death, or the circumstances of a transaction which resulted in  

his death.  But such permissibility, would extend only to the exigencies  

expressly enumerated in Section 32 of the Evidence Act.  The situations  

wherein  secondary  evidence  is  permissible  under  Section  32  of  the  

Evidence  Act  include  statements  made  by  persons  who  have  since  

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died,  or  statements  made  by  persons  who  cannot  be  found,  or  

statements  made  by  persons  who have  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 accused-

respondents 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  accused-respondents  had  placed  

emphatic reliance on Article 20 of the Constitution of India.  Article 20  

aforementioned is reproduced hereunder:-

“20. Protection in respect of conviction for offences –  

(1) No person shall be convicted of any offence except  for  violation  of  a  law  in  force  at  the  time  of  the  

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commission of the Act charged as an offence, nor be  subjected to a penalty greater than that which might  have been inflicted under the law in force at the time  of the commission of the offence.

(2) No person shall be prosecuted and punished for the  same offence more than once.

 (3) No  person  accused  of  any  offence  shall  be  

compelled to be a witness against himself.”

Relying on sub-Article  (3)  of  Article  20,  it  was the contention  of  the  

learned counsel  for  the accused-respondents,  that  since no accused  

can be compelled to be a witness against himself, it would not be open  

to  the  accused-respondents  to  summon  Sadiq  Israr  Shaikh,  Arif  

Badruddin  Shaikh  and  Ansar  Ahmad  Badshah,  and  thereby  compel  

them  to  be  witnesses  against  themselves.   In  that  sense,  it  was  

submitted,  that  the  authors  of  the  confessional  statements  must  be  

deemed  to  be  persons  incapable  of  giving  evidence  and/or  persons  

whose attendance cannot be procured for deposition, during the trial of  

Special Case no. 21 of 2006.

39. The plea advanced at the hands of the learned counsel for the  

accused-respondents, as has been noticed in the foregoing paragraph,  

is  clearly  not  available  to  the  accused-respondents  in  view  of  the  

protection  afforded  to  a  witness  who  would  find  himself  in  such  a  

peculiar situation under Section 132 of the Evidence Act.  Section 132  

of the Evidence Act is being extracted hereunder:-

“132. Witness not excused from answering on ground that  answer will  criminate - A witness shall  not  be excused  from answering any question as to any matter relevant to  the matter  in  issue in any suit  or  in  any civil  or  criminal  proceeding,  upon  the  ground  that  the  answer  to  such  

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question will criminate, or may tend directly or indirectly to  criminate,  such  witness,  or  that  it  will  expose,  or  tend  directly or indirectly to expose, such witness to a penalty or  forfeiture of any kind:

Proviso   

Provided that  no such answer,  which a witness shall  be  compelled  to  give,  shall  subject  him  to  any  arrest  or  prosecution,  or  be  proved  against  him  in  any  criminal  proceeding, 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 2006, the protection  

available to a witness under Section 132 extracted above, would also  

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extend to them, if  they are compelled to answer  questions posed to  

them, while appearing as defence witnesses in Special Case no. 21 of  

2006.

40. It is also necessary to examine the issue in hand with reference to  

the  provisions  of  the  MCOCA.   The  controversy  pertaining  to  the  

relevance of the statement of witnesses at serial nos. 63 to 66, has to  

be understood with reference to Section 18 of the MCOCA.  We shall  

now record our determination on the scope and effect of Section 18 of  

the MCOCA.  Section 18 aforementioned is being extracted hereunder:

“Section 18 - Certain confessions made to police officer to be  taken  into  consideration--  (1)  Notwithstanding  anything  in  the  Code or in the Indian Evidence Act, 1872 (I of 1872), but subject to  the  provisions  of  this  section,  a  confession  made  by  a  person  before a police officer not below the rank of the Superintendent of  Police and recorded by such police officer either in writing or on  any mechanical devices like cassettes, tapes or sound tracks from  which sounds or images can be reproduced, shall be admissible in  the trial of such person or co-accused, abettor or conspirator:

Provided  that,  the  co-accused,  abettor  or  conspirator  is  charged and tried in the same case together with the accused.

(2) The confession shall be recorded in a free atmosphere in the  same language in which the person is examined and as narrated  by him.

(3) The police officer shall, before recording any confession under  sub-section (1), explain to the person making it that he is not bound  to make a confession and that, if he does so, it may be used as  evidence against him and such police officer shall not record any  such confession unless upon questioning the person making it, he  is satisfied that it is being made voluntarily. The concerned police  officer  shall,  after  recording  such voluntary  confession,  certify  in  writing below the confession about his personal satisfaction of the  voluntary character of such confession, putting the date and time of  the same.

(4) Every confession recorded under sub-section (1) shall be sent  forthwith to the Chief Metropolitan Magistrate or the Chief Judicial  Magistrate  having  jurisdiction  over  the  area  in  which  such  

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confession has been recorded and such Magistrate shall forward  the  recorded  confession  so  received  to  the  Special  court  which  may take cognizance of the offence.

(5) The person whom a confession had been recorded under sub- section (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 police officer, or while  

in  police  custody,  Section  18  of  the  MCOCA  overrides  the  said  

provisions and bestows admissibility to such confessional statements,  

as would fall  within the purview of  Section 18 of  the MCOCA.  It  is  

however  relevant  to  mention,  that  Section 18 of  the MCOCA makes  

such  confessional  statements  admissible,  only  for  “the  trial  of  such  

person, or co-accused, abettor or conspirator”.  Since Section 18 of the  

MCOCA is an exception to the rule laid down in Sections 25 and 26 of  

the Evidence Act, the same will have to be interpreted strictly, and for  

the limited purpose contemplated thereunder.   The admissibility  of  a  

confessional statement would clearly be taken as overriding Sections 25  

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and  26  of  the  Evidence  Act  for  purposes  of  admissibility,  but  must  

mandatorily be limited to the accused-confessor himself, and to a co-

accused (abettor or conspirator).  It is not the contention of the learned  

counsel for the accused-respondents that the persons who had made  

the confession (Sadiq Israr Shaikh, Arif  Badruddin Shaikh and Ansar  

Ahmad  Badshah)  before  witnesses  at  serial  nos.  64  to  66  are  the  

accused themselves along with the co-accused (abettor or conspirator)  

in  Special  Case  no.21  of  2006.   It  is  therefore  apparent,  that  the  

ingredients  which  render  a  confessional  statement  admissible  under  

Section 18 of the MCOCA are not satisfied in the facts of the present  

case.  For that matter Section 18 of the MCOCA, has to be viewed in  

the same manner, as we have recorded our analysis of Section 15 of  

the  TADA  herein  above.   In  the  aforesaid  view  of  the  matter,  it  is  

imperative for us to conclude, that Section 18 of the MCOCA cannot  

constitute the basis of 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, to the case in hand.  It  

is  therefore  not  possible  for  us  to  accept  the  admissibility  of  the  

witnesses at serial nos. 63 to 66 in so far as Special Case no. 21 of  

2006 is concerned.

41. One of the considerations which weighed heavily with the High  

Court  in  setting aside the order  of  the MCOCA Special  Court  dated  

1.8.2012, whereby the request of the accused-respondents to summon  

witnesses at serial nos. 63 to 66 as defence witnesses was declined,  

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stands highlighted by the High Court in paragraph 29 (of the impugned  

order  dated  26.11.2012).   Relevant  part  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, rightly been  given up by the respondent-State, before this Court….”

In our deliberations in the preceding few paragraphs, we have brought  

out the scope of applicability of Section 18 of the MCOCA.  It needs to  

be reiterated that Section 18 of the MCOCA is an exception to Sections  

25 and 26 of the Evidence Act, only in a trial against an accused (or  

against  a  co-accused  -  abettor  or  conspirator)  who  has  made  the  

confession.  The said exemption has not been extended to other trials in  

which the person who had made the confession  is  not  an accused.  

Since the vires of Section 18 of the MCOCA is not subject matter of  

challenge  before  us,  it  is  imperative  for  us  to  interpret  the  effect  of  

Section 18 of the MCOCA as it is.   

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42. Another  submission  advanced  at  the  hands  of  the  learned  

counsel for the accused-respondents which deserves notice was based  

on  Sections  35  and  80  of  the  Evidence  Act.   Sections  35  and  80  

aforementioned are being extracted hereunder:-

“35. Relevancy  of  entry  in  public  record  or  an  electronic  record made in performance of duty – An entry in any  public  or  other  official  book,  register  or  record  or  an  electronic record, stating a fact in issue or relevant fact, and  made by a public  servant  in  the discharge of  his  official  duty,  or  by  any  other  person  in  performance  of  a  duty  specially enjoined by the law of the country in which such  book, register, or record or an electronic record is kept, is  itself a relevant fact.”

80. Presumption as to documents produced as record of  evidence -  

Whenever  any  document  is  produced  before  any  Court,  purporting to be a record or memorandum of the evidence,  or  of  any  part  of  the  evidence,  given  by  a  witness  in  a  judicial proceeding or before any officer authorized by law  to take such evidence, or to be statement or confession by  any prisoner or accused person, taken in accordance with  law,  and  purporting  to  be  signed  by  any  Judge  or  Magistrate, or by any such officer as aforesaid, the Court  shall presume -

that the document is genuine; that any statements as  to  the  circumstances  under  which  it  was  taken,  purporting to be made by the person signing it, are  true,  and  that  such  evidence,  statement  or  confession was duly taken.”

43. While endeavouring to determine the viability of the production of  

the  witnesses  at  serial  nos.  63  to  66  as  defence  witnesses,  it  is  

important to understand why the aforesaid 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  

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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.  The  fact  that  someone  else  has  confessed  about  having  committed  the  crime  with  which  the  appellants  are  charged  is  relevant in itself.  In fact, it is difficult to understand as to how the  court is supposed to decide whether the confession is truthful or  not  before  the  evidence  of  such  confession  is  given.   It  is  interesting to note that though some arguments were advanced  by the learned Advocate General to the effect that ‘the fact that  someone else has confessed about the same crime for which the  appellants are being charged, is by itself not relevant at all unless  the truth of such confession is sought to be proved,’ that was not  the stand of the learned Special Public Prosecutor before the Trial  Court.  In fact, the impugned order itself records that the objection  of the Special Public Prosecutor was that if the confessions of the  accused in the MCOC Special Case No.4 of 2009 is brought on  record of the case against the appellants, it would be inconsistent  with the guilt of the accused (paragraph no.6 of the order).  It was  the specific contention of the Special Public Prosecutor before the  Trial Court that the appellants wanted to bring the said confession  on record in the present case, because such confessions would  be inconsistent with the guilt of the appellants.”

It clearly emerges from the submissions advanced at the behest of the  

accused-respondents,  that  the  confessions  made  by  the  accused  in  

Special Case no.4 of 2009 are sought to be adopted for establishing the  

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fact,  that  it  was  not  the  accused-respondents  herein  who  are  

responsible  for  the  seven  bomb  blasts  in  seven  different  first  class  

compartments  of  local  trains  of  Mumbai  Suburban  Railways  on  

11.7.2006, but it was the accused (Sadiq Israr Shaikh, Arif Badruddin  

Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 who  

had already confessed to the same.  It is therefore apparent, that the  

objective of the accused-respondents is not to rely on the factum of a  

confessional  statement  having  been  recorded.   The  objective  is  to  

achieve exculpation of blameworthiness on the basis of the truth of the  

confessional statements made before witnesses at serial nos. 63 to 66.  

It needs to be kept in mind that the witnesses sought to be produced in  

their defence by the accused-respondents (the witnesses at serial nos.  

64  to  66),  cannot  vouchsafe  the  truth  or  falsity  of  the  confessional  

statements  made  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  

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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  accused-

respondents in the facts and circumstances of this case, since we have  

already concluded hereinabove, that the witnesses at serial nos. 63 to  

66 cannot be summoned, as their evidence before the trial Court would  

not fall within the realm of admissibility with reference to “facts in issue”  

or “relevant facts”.

44. From different angles and perspectives based on the provisions  

of the Evidence Act and MCOCA examined on the basis of submissions  

advanced  by the  learned counsel  representing  the rival  parties,  it  is  

inevitable for us to conclude, that the accused-respondents cannot be  

permitted to summon the witnesses at serial nos. 63 to 66 as defence  

witnesses, for the specific objective sought to be achieved by them.   

45. For the reasons recorded hereinabove, we are satisfied, that the  

impugned order dated 26.11.2012 passed by the High Court deserves  

to be set aside.  The same is accordingly hereby set aside.  It is held,  

that it is not open to the accused-respondents to produce the witnesses  

at  serial  nos.  63  to  66  in  order  to  substantiate  the  confessional  

statements  made  by  Sadiq  Israr  Shaikh,  Arif  Badruddin  Shaikh  and  

Ansar Ahmad Badshah (the accused in Special Case no. 4 of 2009),  

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who are not accused/co-accused in Special Case no. 21 of 2006 (out of  

the proceedings whereof, the instant appeal has arisen).

46. Appeal stands allowed.

…………………………….J. (P. Sathasivam)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; March 14, 2013.

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Digital  Performa

Case  No.           : Criminal Appeal No..... of 2013 (Arising out of SLP (Crl.) No. 9707 of 2012)

Date of Decision : 14.3.2013

C.A.V. on : 23.1.2013

Cause Title :  State of Maharashtra  Versus

Kamal Ahmed Mohammed Vakil Ansari  & Ors.

Coram :   Hon’ble Mr. Justice P. Sathasivam  Hon’ble Mr. Justice Jagdish Singh Khehar

Judgment delivered by  :   Hon’ble Mr. Justice Jagdish Singh Khehar

Nature of Judgment :  Reportable

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