It is highly unlikely the accused would make an extra-judicial confession after five to six months after the incident. Also, it is made to a person who is a close relative of the deceased. Therefore, it is unbelievable that such an extra-judicial confession would have been made to a person who, in fact, belongs to the family of the deceased. A division-judge bench comprising of the Chief Justice Sri Raghvendra Singh Chauhan And Justice Alok Kumar Verma adjudicating in the matter of Nafees & Another v. State of Uttarakhand. (CRIMINAL APPEAL NO.37 OF 2013) dealt with the issue that whether the appeal should be allowed in the present case or not.
In the present case, the Appellants have challenged the legality of the Judgement passed by the Dist. & Sessions Judge Haridwar where the accused was charged under Section-302 IPC along with Section 149 IPC. On 15.08.1996 Mohd. Afzal lodged a complaint before the Police and claimed that a person of his community Mohd. Akram was coming back home after closing his shop around 7:45 PM to his village Safarpur. After crossing Salempur, near Vedpal, few unknown persons shot him dead. The incident was seen by Mohd. Abbas and Irshad from the light of the scooter. It was submitted that if the assailants were sown to them, they can recognize them. This incident occurred around 8:00 PM.
On the basis of the complaint, the accused were charged under Section 302 IPC, and the investigation commenced. During the course of the investigation, not only the appellants, Nafees and Saleem, but also the other accused persons, namely, Islam, Saleem @Raja, Avval @Munavar, and Abid were arrested by the police. Saleem was charged under section 148, 302 read with Section 149 IPC, 120-B IPC, and Abid was under Section-302 along with 120 B of IPC.
The Appellant submitted that the complainant is neither an eye-witness nor has he named the appellants in the FIR lodged by him. According to the complainant, Mohd. Akram was shot by unknown persons. Also, according to the claims by Mohd. Abbas and Irshad Ahmad there was no description of the assailants in the complaint. The TIP did not take place till 22.02.1997 and furthermore, it was stated that the appellants covered their faces with the cloth. It was also submitted that the extra-judicial confession is also riddled with doubts. For, Tahir Hassan was a total stranger to both Nafees and Saleem. Moreover, Tahir Hassan has not reproduced the exact words uttered by the appellants. Furthermore, since Tahir Hassan was a stranger, there is no reason whatsoever for the appellants to go and make an extrajudicial confession to a total stranger. Further, Tahir Hassan, in fact, happens to be a relative of the deceased Mohd. Akram. For, Tahir Hassan’s sister was married to Mohd. Akram’s elder brother. Thus, it is highly unlikely that the appellants would make an extra-judicial confession to a person who was related to the deceased himself. Also it was asserted that the witnesses saw the assailants in the light of the scooter and, therefore, they could identify the assailants.
The said statement is rather unbelievable. For, the scooter driven by Mohd. Akram, the deceased, and the scooter driven by Mohd. Abbas was moving on the road. All three of the eye-witnesses, namely, Mohd. Abbas, Irshad Ahmad, would have the court believe that suddenly five to six assailants came from the side of the road, they flashed torchlight on Mohd. Akram’s face, and shot him dead. It is highly unlikely that the occurrence which had occurred in the darkness could have been seen by the alleged witnesses in minute details, that too when they are moving on scooters. Thus, Mohd., Irshad Ahmad, would not be in a position to identify the assailants to the extent that they can identify the assailants in the TIP.
Also, According to Dr. Pradeep Kumar the deceased had suffered two firearm injuries; firstly, above the right nipple; secondly, on the right thigh above the knee. The second fire-armed injury had damaged the intestine and the abdomen. The direction of the injury was upwards. The bullet had pierced the intestine and had injured the right kidney. The direction of the injury clearly belies the case of the prosecution. For, in case the deceased was riding a scooter, the direction of the second injury could not be upwards. Therefore, the medical evidence falsifies the testimony of the eye-witnesses. Hence, the eyewitnesses are highly unreliable and untrustworthy witnesses.
Despite the victim was killed by 2 firearms, no firearm was ever recovered from the appellants during the course of the investigation. Therefore, the prosecution has miserably failed to prove its case against the appellants beyond a reasonable doubt.
The Respondent replied to the contentions of the Petitioner by stating that FIR was lodged promptly hence it eliminates the possibility of falsely implicating the appellants. Also the claim was supported by both the eye-witnesses, Mohd. Abbas and Irshad Ahmad. All the witnesses in their testimonies clearly stated that the assailants came from the westerly direction from the sugarcane farm belonging to Vedpal. Having killed Mohd. Akram, the assailants ran away by entering the rice farm on the eastern side. Therefore, even the scene of the crime has clearly been identified by these three eye-witnesses. Also, the reason for the delay is initially the investigation was transferred to CBCID, and after such transfer, TIP was held. Also, the extra-judicial confession made by Nafees and Saleem to Tahir Hassan extra-judicial confession made by Nafees and Saleem to Tahir Hassan. Since Tahir Hassan has resolved many of the problems of the people with the police and also he was well-known to Saleem, as Saleem’s brother used to run a crusher in Tahir Hassan’s village. The accused had a bonafide belief that Tahir Hassan could use his connection with the police, and since Tahir Hassan was a relative of the deceased, he could bring about a compromise between the families. It is with this belief that both Nafees and Saleem made the confession to Tahir Hassan. Such confession was also corroborated by Alladiya.
The court after considering both sides stated that It is, indeed, trite to state that an offender would go and make an extra-judicial confession before a person whom he has confidence. Moreover, an extra-judicial confession is generally made to a person whom the maker believes a person who would be able to save him/her. In the present case “an extra-judicial confession is made five to six months after the incident. It is made to a person who is a close relative of the deceased. Therefore, it is unbelievable that such an extra-judicial confession would have been made to a person who, in fact, belongs to the family of the deceased” and hence the appeal is allowed and the appellants were acquitted.
