While acquitting a waiter by disbelieving a murder confession made to a customer, the Bombay High Court in a remarkable, righteous, robust and recent judgment titled Mansoorali Khan Ahmed Khan vs State of Maharashtra in Criminal Appeal No. 685 of 2010 with Interim Application No. 1435 of 2020 and Interim Application No. 1941 of 2021 and Criminal Appeal No. 662 of 2010 that was delivered on February 14, 2022 has ruled that an extra-judicial confession would be made to a person in whom the maker of that statement reposes faith, and making it to a stranger or a person to whom the maker was only acquainted, was improbable. It must be mentioned here that the Court accepted the argument that it was an admitted fact that the witness Mansoorali was working as a waiter in a hotel which was visited by the witness Jilani Mirza once in a week. The Court rightly observed that:
There was no reason for accused No. 1 to repose faith in the customer of the hotel. The confession was allegedly made around 11 am the very next day after the incident.

To start with, this judgment authored by Justice Sadhana S Jadhav for a Bench of Bombay High Court comprising of herself and Justice Prithviraj K Chavan first and foremost puts forth in para 1 that:
The appellants herein are convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and each of the accused is sentenced to suffer R.I. for life and to pay fine of Rs. 500/-, in default to suffer R.I. for two years. The appellants are further convicted of the offence punishable under section 201 read with section 34 of the Indian Penal Code and each of them is sentenced to suffer R.I. for 5 years and to pay fine of Rs. 500/- in default to suffer further R.I. for six months by the Additional Sessions Judge, Greater Bombay vide Judgment and Order dated 7/7/2010 in Sessions Case No. 807 of 2006. Hence, this appeal.

To put things in perspective, the Bench then while dwelling on necessary facts envisages in para 2 that:
Such of the facts necessary for the decision of these appeals are as follows :

(a) On 21/5/2006 one Nurul Hasan Khan lodged a report with Trombay Police Station alleging therein that his uncle Nadir Khan owned Shop No. 24 in E-Sector of Chita Camp, which is given on rent to one Akbar Khan who runs a grocery shop in the name and style of Khan store. One Suresh Murav works in the said shop alongwith Dilshad, brother-in-law of Akbar Khan. Dilshad was also residing in the said shop on the mezzanine floor.

(b) On 21st May, 2006 at about 8.30 p.m. Nurul Khan(P.W.1) was surprised to see shop closed as the shop normally remains open till midnight. He called upon the people in the locality and opened shutter and saw that fans and lights were on. Similarly, cash drawer was found open. He therefore, called out for Dilshad who resides on the mezzanine floor, but there was no response. When he lit candle, he noticed legs of someone on first floor and therefore, he called upon Trombay Police Station.

(c) Then they noticed dead body of Suresh Murav whose throat was slit. The dead body was found in the bed room. A knife was seen lying nearby. Soon thereafter, they saw the dead body of Dilshad Khan in the bathroom with his face submerged in milk crate filled with water. There were marks of strangulation around neck of Dilshad Khan.

(d) On the basis of the report filed by Nurul Hasan, Crime No. 167 of 2006 was registered at Trombay Police Station for the offence punishable under section 302 of the Indian Penal Code against unknown persons.

Be it noted, the Bench then stipulates in para 17 that:
With the help of the respective Counsel, we have perused the papers meticulously and upon appreciation of the evidence adduced by the prosecution, following points would emerge :

(i) It is admitted that deceased Dilshad was the cousin of the accused persons. That Dilshad and his servant Suresh were murdered in the shop, which was being run by Dilshad, brother-in-law of Akbar Khan, who had been to his native place at the time of the incident.

(ii) P.W. 1 happens to be a chance witness. That at about 8.30 p.m. on 21/5/2006 he was surprised to see shop closed and that it was not locked. He therefore, entered the shop premises only to see that lights and fans were on. However, there was darkness on the mezzanine floor. He could notice feet in the bed room on the mezzanine floor. His call was not answered and therefore, he was constrained to call upon the police.

(iii) The investigation was set in motion and the accused were brought from their native place Gonda, Uttar Pradesh. They were not arrested in Uttar Pradesh, but at the request of the police, accused accompanied them.

(iv) That the accused were not even the residents of Bombay/Trombay.

In hindsight, the Bench then points out in para 18 that:
The question that falls for determination before this Court is as to whether extra judicial confession alleged to have been made by accused No. 1 on 22/5/2006 at Karbala ground is voluntary, truthful and has been a north star for the investigating agency. Firstly, P.W. 2 was a stray acquaintance with the accused No. 1. It is admitted by P.W. 2 that accused No. 1 was working as waiter in Hotel Metro, which was visited by P.W. 2 once in a week.

There was no reason for accused No. 1 to repose faith in customer of the hotel. Moreover, the location of Karbala ground is just across the road from the scene of offence. He met P.W. 2 by chance and divulged his guilt to P.W. 2 which does not appeal to a prudent mind. Extra Judicial confession necessarily is to be made to a person in whom maker of the statement reposes faith. Moreover, accused had given graphic details of the act committed by him including the role of each of the accused persons and the manner in which they had killed both the deceased. It is rather very difficult to accept that the accused would make an extra judicial confession to a stranger, passing by the road, who is only acquainted.

It cannot be glossed over that the Bench then observes in para 19 that:
The material on record would show that immediate disclosure was made by P.W. 2 to investigating agency. However, there is no material on record to show that the investigating agency had made any efforts to apprehend the accused immediately. There is no material to show as to when the accused had left Bombay for Gonda after commission of offence. It is neither the case of the prosecution that they had absconded due to an apprehension of being placed under suspicion after disclosure was made by P.W. 2 to the police. However, suddenly the police had gone to Gonda in the month of June, 2006.

In fact, extra judicial confession made to P.W. 2 was more than sufficient for the police to arrest the accused in Gonda itself and return to Bombay after obtaining a transit warrant from the Magistrate in Gonda. The accused had not resisted to go to Bombay. That the conduct of the accused would show that they had not absconded since their place of residence has not been brought on record by the police. There is no reference to taluka Karmalganj from where the accused were brought to Bombay. The Investigating Officer had made no attempts to record the statement of accused No. 1 under section 30 of the Indian Evidence Act, although he had stated graphic details before P.W. 2.

Needless to say, the Bench then notes in para 21 that:
It appears from the record that the investigation was directed on the basis of the statement of the P.W. 2 and the same is supplemented with motive. It would therefore be necessary to ascertain as to whether there is any independent, reliable corroboration in order to place implicit reliance upon extra judicial confession of accused No. 1 to P.W. 2.

Quite prudently, the Bench then states unambiguously in para 22 that:
In fact, extra judicial confession has to be proved like any other evidence and the value of the same would depend upon veracity of the witness, to whom it was made. The confession is normally made to a person to avoid harassment from the police or the people concerned and also it is made to a person, who could otherwise protect the accused. P.W. 2 is neither influential and not even of any help to accused No. 1. It does not appeal to a prudent mind that the accused, who is not apprehended by police nor under any suspicion would confess the guilt before a stranger.

While citing the relevant case law, the Bench then mentions in para 23 that, The Supreme Court in the case of Balwinder Singh v/s. State of Punjab 1996 AIR SC 607 has held as follows : An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession.

While citing yet another relevant case law, the Bench then states in para 24 that:
It would also be trite to refer to the Judgment of Supreme Court in the case of State of Rajasthan vs Rajaram (2003) Cr.L.J. 3901 , wherein the Supreme Court has held as follows:

It is not open to any court to start with the presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstance, the time when the confession was made and the credibility of witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded there on if the evidence about the confession comes from the mouth of witnesses who appeared to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken by the witness are clear unambiguous and unmistakably convey that the accused is the perpetrator and nothing is omitted by the witness which may militate against it. If the evidence relating to extra judicial confession is found credible after being tested on the touch stone of credibility and acceptability, it can solely form the basis of conviction.

The requirement of corroboration is a matter of prudence and not an invariable rule of law. It is improbable that the accused would repose confidence on a person who is inimically deposed towards him and confess his guilt.

Quite logically, the Bench then observes in para 25 that:
Upon meticulous examination of the evidence of P.W. 3, the manner in which it is narrated, the juncture at which the alleged extra judicial confession is said to have been made to P.W. 2 and the fact that the motive is falsified by the brother of the deceased (P.W. 14), we are of the opinion that this is not a fit case where implicit reliance could be placed on the extra judicial confession of the accused No. 1 for upholding the conviction. It is also clear that there is no independent corroboration to the alleged extra judicial confession. The manner in which it is said to have been made appears to be improbable and imprudent.

Quite analytically, the Bench then notes in para 26 that:
There is no doubt that P.W. 3 is a got up witness, as she claims to be a chance witness, who seems to recollect even clothes worn by the accused when she saw them in the shop for hardly 5 minutes. In view of that, the evidence in the nature of test identification would also fail. Moreover, the Special Executive Officer (P.W. 13) has failed to demonstrate before the Court that her nomination as Special Executive Officer was in place and that she was authorised to conduct test identification parade.

Of course, the Bench then rightly observes in para 27 that:
The learned Judge has placed reliance upon the recovery under section 27 of the Indian Evidence Act at the instance of the accused. The question is as to whether in a case of circumstantial evidence, recovery by itself would be sufficient to uphold the conviction. The learned Sessions Judge has given undue importance to the recovery of blood-stained clothes at the instance of the accused under section 27 of the Indian Evidence Act after about 20 days. It is further pertinent to note that it is the case of the prosecution that the accused were not resident of Bombay. They were arrested on 6/6/2006. The chronology of the events would be as follows :

1. FIR was lodged on 21/5/2006 against unknown persons.
2. An extra judicial confession was made to P.W. 2 on 22/5/2006.
3. The accused were arrested on 6/6/2006 from Karnalganj, district Gonda, Uttar Pradesh.
4. Recovery of blood stained clothes was made on 11/6/2006. The knife was seized from the scene of offence on 21/5/2006 itself.

Furthermore, the Bench then notes in para 28 that:
It is pertinent to note that the Chemical Analyser’s report does not establish that the blood stains on the clothes recovered at the instance of the accused matched with the blood group of the deceased. The blood group of the deceased was O and blood of O group was found on the knife, electric wire and key chain. The reports are inconclusive and therefore, it cannot be said that the recovery of blood stained clothes after more than 3 weeks of the alleged incident is sufficient material to convict the accused for offence punishable under section 302 of the Indian Penal Code.

Practically speaking, the Bench very rightly points out in para 29 that:
The first and foremost fact that the weapons such as knife and wire were noticed while conducting the scene of offence panchanama and therefore, it is only the recovery of blood-stained clothes at the instance of the accused. The said evidence does not inspire the confidence in as much as the scene of offence panchanama does not even show as to whom the premises belonged from where the accused had produced the clothes. Moreover, after seizure, the clothes were not sealed. Panchas to the scene of offence panchanama appeared to be stock panchas of police. The recovery of the clothes is made approximately after more than 20 days of the incident.

More to the point, the Bench then notes in para 30 that:
On elimination of the material in the form of extra judicial confession and the recovery of blood-stained clothes, this could be a case of circumstantial evidence. Therefore, the onus would lie upon the prosecution to show that there are cogent, incriminating circumstance against the accused which would lead to the only inference that the accused are guilt of the offence alleged. The motive for commission of the offence is not proved, which could have in all probabilities established a link in the chain of circumstantial evidence. Brother of the deceased is declared hostile.

In this premise, the learned Counsel has placed reliance upon the Judgment in the case of Anwar Ali & anr. v/s. State of Himachal Pradesh (2020) 10 SCC 166. The Apex Court has observed that:
It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

Simply put, the Bench then rules in para 31 that:
There is no unimpeachable, legal, reliable and admissible evidence to prove the guilt of the accused. The prosecution has been unable to discharge the onus cast upon it to adduce such evidence which would prove the guilt of the accused beyond reasonable doubt.

Finally, the Bench then concludes by holding in para 35 that:
Hence, following order is passed :

ORDER

1. The appeals are allowed.
2. The conviction and sentence imposed upon the appellants vide Judgment and Order dated 7/7/2010 by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 807 of 2006 is hereby quashed and set aside.
3. The appellants are acquitted of all the charges levelled against them.
4. The appellants be released forthwith if they are in jail. If they are on bail, their bail bonds stand cancelled.
5. The appeals are disposed of accordingly.
6. In view of disposal of appeals, nothing survives in the interim applications. The same is disposed of accordingly.

In sum, the Bombay High Court thus makes the whole picture pretty clear on the evidentiary value of extra judicial confession. It rightly holds as improbable the extra judicial confession to a stranger. So the Bombay High Court thus very rightly acquits a waiter by most commendably disbelieving a murder confession that was made to a customer.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh