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State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari, (2013) 12 SCC 17

Criminal Law

Criminal Trial

Confession of accused - Multiple cases relating to same incident, but not being a joint trial - Case 1 Confessions i.e.
confessions of accused in one such case (Case 1 Accused) made before police officers (Case 1 PWs) during
investigation in Case 1 - (1) Admissibility, and (2) Proof of Case 1 Confessions in another such case, Case 2 - Case 1
Confessions, held, are admissible in Case 2 as relevant facts under S. 11 Evidence Act but not as
confessions/admissions as such (see also Shortnotes H to O in SCC) - Case 1 PWs, further held, cannot be
summoned/produced as witnesses in Case 2 to prove Case 1 Confessions in Case 2, without Case 1 Accused being
summoned/produced as witnesses in Case 2 to prove their own confessions, since Case 1 Accused were alive and
available to be summoned in Case 2 - In such circumstances, evidence of Case 1 PWs, held, not relevant facts in Case
2, hence was inadmissible - Reasons for, explained in detail - Bombay Suburban Trains Blasts, 2006 - Respondents
(Case 2 Accused) charged with offences in relation to, in Special Case 21 of 2006 - Case 1 Confessions of Case 1
Accused in Special Case 4 of 2009 (not co-accused in instant case being Special Case 21 of 2006), recorded before
police officers (witnesses at Sl. No. 64 to 66 in Special Case 21 of 2006 i.e. Case 1 PWs) during investigation in Special
Case 4 of 2009 wherein Case 1 Accused (S, A and AB) confessed to carrying out said bomb blasts in suburban Bombay
trains on 11-7-2006 for which respondent-accused were also being tried in instant case - Said confessions made in
Special Case 4 of 2009, held, are admissible in Special Case 21 of 2006 under S. 11, but evidence of Case 1 PWs
without summoning Case 1 Accused as defence witnesses in Special Case 21 of 2006, further held, is not admissible -
Held, an admission/confession can be used only as against person who has made it - Admissibility of confessions made
by accused in one case who are not the accused in another case, are inadmissible as admissions/confessions as such in
the said other case under provisions of Evidence Act - Had Case 1 Accused been accused in instant case also, then
certainly said Case 1 PWs could have been summoned to substantiate the same in instant case also - As it is not a case
of joint trial and nor were respondent-accused in Case 2 implicated in Case 1 Confessions, held, neither S. 30 of
Evidence Act nor S. 18(1) proviso of MCOCA are applicable - Hence, Case 1 Confessions are admissible in Case 2 not
as confessions/admissions as such, but only as relevant facts under S. 11(1) and/or S. 11(2), Evidence Act since they
could contain statements of/about existence of fact(s) which could certainly have bearing on trial in Case 2, especially if
Case 1 Confessions contain admissions of culpability/guilt (as alleged in present case) by Case 1 Accused in respect of
offences for which respondent Case 2 Accused are also charged - Confessional statements themselves are not
primary/direct evidence of either facts in issue or relevant facts but hearsay and hence Case 1 Confessions need to be
proved by primary/direct evidence till makers thereof are alive and available for being examined in court - Hence,
evidence of Case 1 PWs is not admissible in Case 2 under either S. 11(1) or S. 11(2), Evidence Act since statements of
such PWs would only amount to statements as to existence of relevant fact(s), and not statements of/about existence of
relevant facts - Thus, Case 1 PWs cannot be summoned/produced as witnesses in Case 2 - On the other hand Case 1
Accused can themselves be summoned/produced as witnesses in Case 2 to prove Case 1 Confessions since as per S.
60 Evidence Act oral evidence in respect of a fact must be direct/primary evidence - It cannot be hearsay, for that would
be indirect/secondary evidence of the fact in issue (or the relevant fact) - Hence, even if evidence of Case 1 PWs were
admissible in Case 2 it would amount to hearsay and Case 1 Confessions cannot be proved based thereon, (2013) 12
SCC 17-A

Evidence Act, 1872

Ss. 60, 6 and 17 to 31 - Confessional statements/admissions made by accused recorded by police officers during
investigation - Nature of - Proof of, while accused who made such statements are alive and available to be examined in
court - Confessional statements themselves are not primary/direct evidence of either facts in issue or relevant facts but
hearsay and hence, held, they need to be proved by primary/direct evidence till makers thereof are alive and available for
being examined in court - To determine truthfulness of said confessional statements it is inevitable in terms of mandate of
S. 60 that accused who had made the confessional statements, must themselves depose before a court - Police officials
who recorded confessions cannot depose as to truthfulness of contents of confessional statements since such
depositions would amount to hearsay, (2013) 12 SCC 17-B

Evidence Act, 1872

Ss. 11, 60 and 6 - Evidence admissible under S. 11 - Distinction between statement of/about existence of fact and
statement as to existence of fact, explained - Held, the former is a relevant fact and hence is admissible, while the latter
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is not a relevant fact, hence it is inadmissible in evidence, (2013) 12 SCC 17-C

Evidence Act, 1872

Ss. 32 and 132 - Multiple cases relating to same incident, but not being a joint trial - Confession of accused in one such
case (Case 1) allegedly admitting to crimes for which respondent-accused were being tried in instant matter (Case 2) -
Evidence of police officials who recorded said confessional statements in Case 1 - Admissibility as secondary evidence
in Case 2 - Secondary evidence as to statements, written or verbal, made by a person who cannot be called as a witness
- When admissible - Held, situations wherein secondary evidence is admissible include statements made by persons who
have since died, who cannot be found, who have become incapable of giving evidence, or who cannot be procured
without an amount of delay or expense i.e. in only the exigencies expressly enumerated in S. 32 - Authors of said
confessional statements in present case, are very much alive and available and their presence can be procured by
respondent-accused to be presented as defence witnesses on their behalf in Case 2 - Hence, respondent-accused in
Case 2 cannot be allowed to lead evidence in respect of confessional statements by recording evidence of abovesaid
police officials who recorded the said confessional statements in Case 1, as defence witnesses in Case 2 - Further,
contention that authors of confessional statements must be deemed to be persons incapable of giving evidence in view
of Art. 20(3) of Constitution rejected, as protection available to a witness under S. 132 of Evidence Act would also extend
to them, if they are compelled to answer questions posed to them, while appearing as defence witnesses in Case 2,
(2013) 12 SCC 17-D

Evidence Act, 1872

S. 6 - Relevancy of facts forming part of same transaction - Res gestae - Applicability - Exception to general rule of
inadmissibility of hearsay evidence - Confessional statements of accused members of Indian Mujahideen (IM) S, A and
AB, recorded before police officers during investigation in Special Case 4 of 2009 (Case 1) wherein they allegedly
confessed to carrying out bomb blasts in suburban Bombay trains on 11-7-2006 for which respondent-accused were
being tried in instant case (Special Case 21 of 2006: Case 2) - Confessional statements of S, A and AB recorded two
years after date of occurrence of incident - Admissibility of said confessional statements of S, A and AB in evidence in
Case 2 by respondent-accused through police officers who recorded said confessions in Case 1 - Held, test to determine
admissibility under rule of res gestae is embodied in the words are so connected with a fact in issue as to form a part of
the same transaction - In present case, confessional statements made by accused S, A and AB in Case 1 cannot be said
to have contemporaneously arisen along with bomb blasts of 11-7-2006, which is the fact in issue - Said confessional
statements are most certainly not spontaneous reactions arising out of the bomb blasts of 11-7-2006 - Hence,
confessional statements of accused S, A and AB in Case 1 do not satisfy ingredients of rule of res gestae incorporated in
S. 6 - Hence, said police officers cannot depose as to truthfulness or otherwise of substance of said confessional
statements, (2013) 12 SCC 17-E

Criminal Law

Criminal Trial

Generally - Admissibility of evidence - Determination of, held, has to be made with reference to Evidence Act or
alternatively under a special enactment, which may either make evidence admissible or render it inadmissible, (2013) 12
SCC 17-F

Evidence Act, 1872

Ss. 17 to 31 and 5 to 16 - Admissions/Confessions - Admissibility - Determination of - Admissibility of

admissions/confessions, held, depends on whether they would fall in the realm of facts in issue or relevant facts either as
admissions/confessions as such or as relevant facts under Ss. 6 to 16, (2013) 12 SCC 17-G

Evidence Act, 1872

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Ss. 5 to 16 - Admissibility of evidence - Scheme of Evidence Act, explained - Facts in issue, relevant facts - What are -
Reiterated, 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, (2013) 12 SCC 17-H

Evidence Act, 1872

Ss. 17 to 31 and 32 - Admissions/Confessions - Evidentiary value and proof of - Principles explained in detail -
Admissions/confessions are exceptions to the hearsay rule - They are declarations against the interest of the person
making them and are in all probability true - Probative value of an admission or a confession does not depend upon its
communication to another - Truth of an admission/confession cannot be proved through a person to whom such
admission/confession was made as long as the maker of the admission/confession can be examined in court and the
case does not fall within exceptions enumerated expressly in S. 32, (2013) 12 SCC 17-I

Evidence Act, 1872

Ss. 17 to 31 - Admissions/Confession - Admissibility, voluntariness and proof of confession - Scheme of provisions

pertaining to under Evidence Act - Admissibility of, only as against person who had made such admission/confession -
Bar contemplated under Ss. 25 and 26 - Scope - Held, a confession is admissible only as against the person who has
made it, unless it is rendered inadmissible under some express provision i.e. Ss. 24, 25 and 26 - It would be
inappropriate to implicate a person on the basis of a statement made by another - A person who has made the
admission/confession should be a party to the proceeding because that is the only way a confession can be used against
him - Hence, confessions which have been made by the accused (in another case) who are not the accused in present
case are inadmissible as admissions/confessions as such, and evidence of such confessional statements recorded
before witnesses (police officers) would also be inadmissible within the scheme of admissions/confessions contained in
the Evidence Act (see in detail Shortnotes A to E, above), (2013) 12 SCC 17-J

Evidence Act, 1872

S. 30 and Ill. (b) thereto and S. 31 - Confession of persons not co-accused/nor jointly tried with accused-respondents -
Inadmissibility of in trial of accused-respondents - Held, 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 - 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 is, such a confessional statement relevant even against the
others who are accused/implicated - Hence, where authors of confessional statements are arrayed as the accused in a
particular case (as in present case), confessional statements made by them are inadmissible as confessional statements,
(2013) 12 SCC 17-K

Evidence Act, 1872

Ss. 25 to 27 - Applicability - Inadmissibility of confessional statements made by accused to police in one case, at behest
of persons involved in another case - Authors of confessional statements not accused in such other case, nor accused-
respondents in such other case being jointly tried with persons who had made confessional statements nor statements
being proved to substantiate the discovery of facts emerging out of such confessional statements - Held, such
confessional statements are inadmissible in such other case - Exception to Ss. 25 and 26, contemplated under S. 27
thereof, would also not come into play - This is because confessional statements were made by accused in another case
to different police officers, hence, said confessional statements are inadmissible under Ss. 25 and 26 in such other case,
(2013) 12 SCC 17-L

Evidence Act, 1872

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Ss. 24 to 30 - Confessional statement made by the accused - Admissibility - Test - Author of confessional statement
must be an accused in the case (in which confessional statement is admissible) - 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 same case as the author, (2013) 12 SCC 17-M

Criminal Law

Terrorism and Organised Crime

S. 18 - Admissibility of confession of accused made to a police officer, under - As an exception which overrides
mandate of Ss. 25 and 26 of Evidence Act, 1872 - Scope and effect - Held, admissibility of confession of accused made
to police officer, under S. 18 MCOCA is mandatorily limited to the accused confessor himself, and to a co-accused
(abettor or conspirator) in the same case - Said exemption has not been extended to other trials in which the person who
had made the confession is not an accused - As persons who had made the confession before police witnesses were the
accused in another case themselves and not co-accused (abettor or conspirator) in present case, hence, ingredients
which render a confessional statement admissible under S. 18 of MCOCA are not satisfied, (2013) 12 SCC 17-N

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