Holding

A co‑accused's confession cannot by itself constitute substantive evidence against other accused for murder; however, knowledge of the crime and concealment can sustain conviction under Section 201 IPC.

Summary

The case involved the murder of Zahida Begum and her son Ishlam, whose bodies were recovered from a septic tank after appellant No.1, Asar Mohammad, confessed and led police to the site. The trial court convicted all three accused under Sections 302 and 201 IPC, sentencing them to death (later commuted to life). On appeal, the Supreme Court upheld the conviction of appellant No.1 for murder, but held that the confession of a co‑accused cannot alone prove the participation of the other two accused in the homicide. Consequently, appellants No.2 and No.3 were acquitted of the murder charge (s.302) but their conviction under s.201 for concealing the offence was affirmed. The Court relied on the principles governing circumstantial evidence and the scope of Section 27 of the Evidence Act. The judgment clarified that knowledge of the crime and failure to report it, coupled with the circumstances, suffices for conviction under s.201, but not for s.302 without independent substantive evidence.

Issues considered

The admissibility and evidentiary value of a co‑accused's confession against other accused persons.
Whether the circumstantial evidence presented is sufficient to sustain convictions under Section 302 IPC for appellants No.2 and No.3.
Whether the same set of facts can support convictions under Section 201 IPC against appellants No.2 and No.3.
The interpretation and scope of Section 27 of the Indian Evidence Act in relation to facts discovered from a confession.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 106, s. 27, s. 30, s. 8
Indian Penal Code, 1860s. 201, s. 302

Subjects

murdercircumstantial evidenceconfession of co‑accusedSection 27 Evidence ActSection 201 IPCacquittalconvictiondeath penaltylife imprisonment

Judgment

248 [2018] REPORTS
SUPREME COURT 13 S.C.R. 248 [2018] 13 S.C.R.

A ASAR MOHAMMAD AND ORS.
v.
THE STATE OF U.P.
(Criminal Appeal No. 1617 of 2011)
B OCTOBER 24, 2018
[A. M. KHANWILKAR AND L. NAGESWARA RAO, JJ.]
Penal Code, 1860:
ss. 302 and 201 – Murder – Circumstantial evidence –
C Prosecution of three accused – Confessional statement of one
accused (appellant No.1) – Recovery of dead bodies at his instance
– FIR lodged on the basis of missing report filed by PW7 – Conviction
by trial court awarding death sentence to all the three accused –
High Court affirmed the conviction, but reduced the death sentence
to imprisonment for life – On appeal, held: In view of the entire
D evidence and totality of the proved circumstances, courts below were
right in holding appellant No.1 guilty of the offences u/ss. 302 and
201 – Except the confession of appellant No.1 there is no other
independent substantive evidence to show involvement of other two
accused (Appellant Nos.2 and 3) for having caused murder – It is
E not permissible to proceed against them solely on the confessional
statement – Therefore, appellant Nos. 2 and 3 are acquitted of the
offence punishable u/s. 302 – However, from the proved
circumstantials it is apparent that they had the knowledge of the
murder and whereabout of the dead bodies and despite that they
did not disclose the same with an intention to screen appellant No.1
F – Therefore, they are liable to be convicted for offence punishable
u/s.201 – Evidence Act, 1872 - s.27.
Evidence Act, 1872:
s.27 – Scope of – The word ‘fact’ as contemplated in s. 27 is
not limited to ‘actual physical material object’ - It includes discovery
G of an object, the place from which it is produced and the knowledge
of the accused as to its existence.
Evidence:
Confession – Of co-accused – If can be used against other
co-accused – Held: Confession of co-accused by itself cannot be
H
248
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 249

the basis to proceed against the other accused unless something A
more is produced to indicate their involvement in the commission of
crime.
Dismissing the appeal of appellant No.1 and partly allowing
the appeal of appellant Nos. 2 and 3, the Court
HELD: 1. No direct evidence has been produced by the B
prosecution regarding the involvement of the appellants in the
commission of the crime. The prosecution rests its case solely
on circumstantial evidence. The fact that PW-1, PW-2 and PW-3
became hostile and the prosecution could not establish the factum
of motive cannot be the basis to doubt the correctness of the C
finding of guilt recorded by the two courts against the accused on
the basis of other proved circumstances including the confession
of the accused No.1 about the murder of the deceased persons
and more importantly, having dumped the dead bodies in the septic
tank in the backyard of their house and to have led the police to
that place from where the two dead bodies, whose identity also D
has not been disputed, came to be recovered, coupled with the
medical evidence that the cause of death of the two dead
persons was due to the ante-mortem injury caused on the neck
resulting in their death due to asphyxia and is a homicidal death.
[Paras 8 and 11][257-F] E
Padala Veera Reddy v. State of Andhra Pradesh and
Ors. (1989) Supp. (2) SCC 706; Mulakh Raj & Ors. v.
Satish Kumar & Ors. (1992) 3 SCC 43 : [1992] 2 SCR
484; Nika Ram v. State of Himachal Pradesh (1972) 2
SCC 80 : [1973] 1 SCR 428 – relied on. F
2. After perusing the entire evidence and taking the totality
of the proved circumstances into account, the Court is in
agreement with the conclusion reached by the trial court, which
came to be affirmed by the High Court, regarding finding of guilt
against appellant No.1, who had confessed to the police and also G
led the police party to the place where the dead bodies were
dumped. [Para 12][261-H; 262-A]
3. If an offence takes place inside the privacy of a house
where the accused have all the opportunity to plan and commit
the offence at the time and in circumstances of their choice, it
H
250 SUPREME COURT REPORTS [2018] 13 S.C.R.

A will be extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
circumstantial evidence, is insisted upon. [Para 12][262-C-D]
Trimukh Moroti Kirkan v. State of Maharashtra (2006)
10 SCC 681 : [2006] 7 Suppl. SCR 156 – relied on.
B 4. The facts need not be self-probatory and the word “fact”
as contemplated in Section 27 of the Evidence Act is not limited
to “actual physical material object”. The discovery of fact arises
by reason of the fact that the information given by the accused
exhibited the knowledge or the mental awareness of the informant
C as to its existence at a particular place. It includes a discovery of
an object, the place from which it is produced and the knowledge
of the accused as to its existence. Applying this principle the
Court has no hesitation in affirming the finding of guilt recorded
against appellant No.1.[Paras 13 and 14][265-C-D; 270-F]
D Vasanta Sampat Dupare v. State of Maharashtra (2015)
1 SCC 253 – relied on.
5. Except the confession of the co-accused appellant No.1,
the prosecution has not produced any independent substantive
evidence to even remotely suggest that appellant Nos.2 and 3
E were involved in committing the murder. It is well settled that
confession of the co-accused by itself cannot be the basis to
proceed against the other accused unless something more is
produced to indicate their involvement in the commission of the
crime. [Para 15][270-G-H]

F Kashmira Singh v. State of Madhya Pradesh [1952] SCR
526; Bhuboni Sahu v. R. (1948-49) 76 IA 147;
Periaswami Moopan, In re ILR (1931) 54 Mad 75;
Emperor v. Lalit Mohan Chuckerbutty ILR (1911) 38
Cal 559 – relied on.
Haricharan Kurmi v. State of Bihar [1964] 6 SCR 623
G
– followed.
6. It is not permissible to proceed against appellant nos.2
and 3 solely on the basis of the confession of appellant No.1 made
before the police, even if the relevant part of the confession is
admissible and has been duly proved. As no substantive evidence
H
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 251

is forthcoming to show the involvement of appellant nos.2 and 3 A
for having caused the murder, it is not open to convict them for
offence punishable under Section 302, IPC. This is also because
the charge, as has been framed, is simpliciter for offence under
Section 302 and not for offence punishable under Section 302
read with Section 34 of IPC or Section 302 read with Section
B
120-B of IPC. No evidence has been produced by the prosecution
in this regard. These appellants, therefore, will have to be
acquitted in connection with offence punishable under Section
302 IPC. [Para 16][272-H; 273-A-C]
7. However, the fact that appellant Nos.2 and 3 cannot be
convicted for offence punishable under Section 302 IPC does C
not extricate them from the offence under Section 201 IPC. The
proved circumstances discerned from the record leave no manner
of doubt that the deceased were residing along with the appellants
in the same house. Further deceased was the second wife of
appellant No.3 and deceased ‘I’ was none other than the son of D
appellant No.3 born in wedlock with deceased ‘Z’. Deceased ‘Z’
was the step mother of appellant Nos.1 and 2 and deceased ‘I’
was their step brother. This relationship has not been disputed.
It is also an established fact that the deceased persons had
suddenly gone missing for over two months. Obviously, no efforts
were made by appellant nos.2 and 3 to trace them nor did they E
think it necessary to report that fact to the local police. This
indeed cannot be a natural behavior or conduct of appellant No.3,
the husband of deceased ‘Z’ and father of minor son deceased
‘I’. Further, appellant nos.2 and 3 have not challenged the identity
of two dead bodies found from the septic tank in the backyard of F
their house at the instance of appellant No.1. No explanation
whatsoever has been offered by them as to why they did not report
about the sudden disappearance of the deceased persons (until
their bodies were recovered from the septic tank in the backyard
of their house after two months). The concomitant is that appellant
Nos.2 and 3 had knowledge that the deceased persons had been G
murdered and their dead bodies were dumped in the septic tank
in the backyard of their house and yet, they did not disclose that
fact with an intention to screen appellant No.1, the offender, from
legal punishment. In other words, even though they cannot be
H
252 SUPREME COURT REPORTS [2018] 13 S.C.R.

A made liable for the murder for want of legal evidence in that regard,
they would certainly be guilty of having committed offence under
Section 201 IPC as established from the proved circumstances
coupled with their abject failure to offer any explanation, much
less cogent explanation, about their conduct. The inevitable and
legitimate conclusion to be deduced is that they are guilty of
B
offence punishable under Section 201 IPC. [Para 17][273-D-H;
274-A]
Case Law Reference
(1989) 2 Suppl. SCC 706 relied on Para 8
C [1992] 2 SCR 484 relied on Para 9
[1973] 1 SCR 428 relied on Para 11
[2006] 7 Suppl. SCR 156 relied on Para 12
(2015) 1 SCC 253 relied on Para 22
D
[1952] SCR 526 relied on Para 15
(1948-49) 76 IA 147 relied on Para 15
ILR (1931) 54 Mad 75 relied on Para 15
ILR (1911) 38 Cal 559 relied on Para 15
E
[1964] 6 SCR 623 followed Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1617 of 2011
From the Judgment and Order dated 30.07.2009 of the High Court
F of Judicature at Allahabad in Criminal Appeal No. 1631 of 2008.
S. K. Bhattacharya, L. K. Paonam, Niraj Bobby Paonam,
Mrs. Tomthinnganbi Koijam, Advs. for the Appellants.
Rajesh K. Singh, Pradeep Misra, Advs. for the Respondent.
G The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. This appeal emanates from the
judgment and order passed by the High Court of Judicature at Allahabad
dated 30th July, 2009 in Criminal Appeal No.1631 of 2008, whereby the
High Court upheld the conviction recorded against the appellants for an
H
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 253
[A. M. KHANWILKAR, J.]

offence punishable under Section 302 of the Indian Penal Code (IPC) A
but converted the sentence of death into imprisonment for life with fine,
and confirmed the conviction under Section 201 of the IPC and sentence
of 2 years’ imprisonment and fine, as awarded by the Additional Sessions
Judge/Special Judge, J.P. Nagar in Sessions Trial No.155/2004.
B
2. Briefly stated, one Shababul (PW-7) gave information to the
Police Station, Dedoli on 24th January, 2004 about one Zahida Begum,
the second wife of appellant No.3, Akhtar Mohammad, son of Munshi,
and their son Ishlam (aged about 11 years) who had gone missing from
the village for the last two months, despite which their family members
had not reported the matter to the police. The appellant Nos.1 and 2, C
Asar Mohammad and Asraf Mohammad respectively, are the two sons
of appellant No.3 Akhtar Mohammad, from his first wife. Thus, deceased
Zahida Begum is the step mother of appellant Nos.1 & 2, Asar
Mohammad and Asraf Mohammad. On the basis of the aforementioned
report, the Head Constable Surendra Singh (PW-10), who was posted D
as Head Moharrar, made an entry in GD No.32 (Ext. Ka-17). Acting on
that report, PW-9 Virendra Kumar Tyagi, Station House Officer of Police
Station, Dedoli, visited the village along with SI Doonger Singh Verma
(PW-6), Mangey Ram Tomar, Nath Prakash Gupta, Constable Asqar
Ali and SSI Harendra Singh (PW-4). On enquiries with Asar Mohammad
(appellant No.1/accused No.1), he disclosed that Zahida was his step E
mother and her son Ishlam was his step brother. He confessed that he,
along with the other two appellants committed the murder of both Zahida
and Ishlam and thereafter, dumped their dead bodies into the septic tank
in the backyard of their house. He then led the police party to the septic
tank and removed the lid with the help of Mangat and Jagadish Valmiki F
(PW-8), wherefrom the dead bodies were taken out. The dead bodies
were highly decomposed and virtually reduced to skeletons. The body
of Zahida Begum was found tied with nylon cord (Ext. Ka-18).
Thereafter, the memo of recovery of the dead bodies was prepared by
Harendra Singh (PW-4). SI Doongar Singh Verma (PW-6) conducted
the inquest and gave the inquest report. He also prepared the necessary G
papers concerning the dead bodies and drew a site plan of the place of
recovery (Ext.Ka-19). The dead bodies were then dispatched for post-
mortem examination on the next day, i.e. 25 th January, 2004. The
Investigating Officer then recorded the statement of the inquest witnesses
and proceeded to arrest Asraf Mohammad (appellant No.2/accused No.2),
H
254 SUPREME COURT REPORTS [2018] 13 S.C.R.

A whose statement was recorded on the same day. The statements of
Begum Banu (PW-1) and Akram were recorded on 26th January, 2004.
The appellant No.3 Akhtar came to be arrested on 10th February, 2004.
The post-mortem of the dead bodies was conducted by Dr. Kuldeep
Singh (PW-5) who noted that the body of Zahida Begum inter alia had
fracture of Hyoid bone and Hyoid Cartilage which, in his opinion, was
B
the cause of death due to asphyxia (fracture of Hyoid bone and Thyroid
Cartilage) and that the death had occurred more than one month back.
With regard to the dead body of Ishlam, he inter alia noted that the
cause of death was due to asphyxia (fracture of Hyoid bone). After
completion of the investigation, charge-sheet (Ext. Ka-21) was submitted
C before the jurisdictional Court on 11th February, 2004. The said Court
committed the case to the Sessions Court at J.P. Nagar where it was
registered as Sessions Trial No.155/2004. The Sessions Court on 5 th
August, 2004 framed charges against the appellants as under:
“Charges
D I, Mushaffey Ahmad, Addl. Sess. Judge, hereby charge you,
Asar Mohammad, Asraf and Akhtar as follows:-
That you on two months ago from 24.1.2004 (date of
information to the PS) at 1 am in the village of Panyati within the
limits of PS Didopli Distt. J.P. Nagar committed murder by
E intentionally or knowingly causing the death of Smt. Zahida and
Ishlam and thereby committed an offence punishable under
Section-302 IPC and within the cognizance of this court of session.
That you on above date, time and place having the reason to
believe that certain offence to with murder punishable with death
F has been committed, did cause certain evidence of, the said offence,
to disappear, to with threw the dead bodies of victims, into gutter
with the intention of screening the said Asar Mohammad, Asraf
and Akhtar from legal punishment, and thereby committed an
offence punishable u/s 201 of the Indian Penal Code and within
G the cognizance of this court of Sessions.
And I hereby direct that you be tried on the said charge of
this court of session.”
3. The prosecution examined 10 witnesses, namely, PW-1 Begum
Bano, PW-2 Haji Iqbal, PW-3 Nawab Jan, PW-4 Harendra Singh, PW-
H 5 Dr. Kuldeep Singh, PW-6 Doonger Singh Verma, PW-7 Shababul,
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 255
[A. M. KHANWILKAR, J.]

PW-8 Jagdish, PW-9 V.K. Tyagi and PW-10 Surendra Singh. The defence A
of the accused was of total denial. They did not produce any evidence.
The Sessions Court, after evaluating the entire evidence on record,
eventually found that even though it was a case of circumstantial
evidence, the prosecution had succeeded in establishing the guilt of the
accused beyond all reasonable doubt and found them guilty of offences
B
under Sections 302 and 201 of the IPC. As aforesaid, the Sessions Court
vide judgment and order dated 1st March, 2008 awarded the death
sentence with fine, for having committed the offence under Section 302
of IPC, and 2 years of imprisonment with fine in respect of offence
under Section 201 of IPC to each of the appellants.
4. All the three appellants carried the matter in appeal before the C
High Court, being Criminal Appeal No.1631 of 2008, which was heard
along with the death reference received by the High Court, being
Reference No.3 of 2008. The High Court reappreciated the evidence
on record and affirmed the view taken by the Trial Court, after referring
to the relevant decisions cited before it. In conclusion, the High Court D
observed as follows:-
“27. We have scrutinized the submission of learned Counsel for
the appellants and also decision of the Apex Court in the case of
Aloke Nath Dutta (supra) in all its ramifications. Having gone
through the decision, we must say that the said decision has been E
rendered in different facts and circumstances and flows from
different perspective. In the said case, the Apex Court had
rendered verdict acquitting other accused persons holding
quintessentially that there was no direct evidence from which it
could be deduced that other appellants also were part of the said
conspiracy and that their presence had not been noticed by any of F
the witnesses and further that nobody saw them together in the
house and also that no body saw Mrinal Dutta coming to the house
even once. In the said decision accused were acquitted under
section 120B I.P.C. In the present case the accused persons
were residing in the same house and they were very G
proximate relation of the deceased. Therefore, the facts of
the said case cannot be imported for application to the facts of
the present case.
28. We have carefully scanned the evidence on record. In the
facts and circumstances and evidence on record, it brooks H
256 SUPREME COURT REPORTS [2018] 13 S.C.R.

A no dispute that the prosecution has proved beyond
reasonable doubt that the deceased died homicidal death.
The doctor has clearly held that cause of death of Zahida
Begum was due to Asphyxia (fracture of Hyoid bone and
Thyroid cartilage) and the death of Islam was also due to
Asphyxia (fracture of Hyoid bone). The prosecution has
B
proved its case beyond reasonable doubt. Another
circumstance unerringly pointing to the guilt of the accused
is that, the dead bodies were recovered from the septic
tank situated inside the house of appellant that too, on the
pointing out of Asar Mohammad. PW-3 Nawab Jan and PW-
C 8 Jagdish minced no words to say that dead bodies were
recovered on the pointing of Asar Mohammad from septic
tank, There is no dispute about the identity of the deceased.
Yet another circumstance pointing accused finger at the
appellants is that the appellants did not lodge any report
about the missing of the deceased for about two months
D
nor offered any explanation about their death in their
statement under section 313 Cr.P.C….”
(emphasis supplied)
The High Court, however, noted that the facts and circumstances of the
present case would not come within the purview of a rarest of rare
E case, for which reason it did not confirm the sentence of death awarded
to the appellants. The High Court, instead, commuted the sentence to
life imprisonment for offence under Section 302 of the IPC. Thus, the
appeal filed by the appellants was partly allowed to that extent and the
reference came to be rejected vide the impugned judgment and order
F dated 30th July, 2009.
5. Feeling aggrieved, the appellants have filed the present appeal.
The principal argument of the appellants is that although it is a case of
concurrent finding of facts recorded by the two Courts below, the same
is replete with manifest errors and cannot stand the test of judicial
G scrutiny. It is submitted that the evidence produced by the prosecution
falls short of the quality evidence required for recording a finding of guilt
against the accused in a case of circumstantial evidence. In that, the
motive behind the commission of crime has not been established at all.
No evidence is forthcoming in respect of identification of the two dead
bodies, much less to establish the fact that it was of none other than the
H second wife of appellant No.3 and son of appellant No.3 respectively. It
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 257
[A. M. KHANWILKAR, J.]

is vehemently contended that the police has set up PW-7 as the informant, A
who was an obliging informant of the police. If his evidence is to be
discarded, the genesis of the prosecution case must collapse and, in
which case, the rest of the circumstances or the evidence would be of
no avail. It is submitted that even the other reports prepared by the
police purportedly during the investigation of the crime, were tailored to
B
suit the prosecution case. That ought to be discarded. It is submitted that
the evidence produced by the prosecution, taken as a whole or even in
part, by no stretch of imagination establishes the complicity of the
appellants in the commission of crime. The hypothesis on which the
prosecution case rests is unsubstantiated. Further, the statement of the
accused allegedly made to the police, which is the fulcrum of the C
prosecution case, is inadmissible in evidence and, at any rate, cannot be
used against the co-accused. For all these reasons, the finding of guilt
recorded against the appellants cannot be sustained either on facts or in
law.
6. The learned counsel for the State, however, supported the D
judgment under appeal and would submit that no interference is warranted
against the concurrent findings of fact. He submits that the prosecution
has established the circumstances and the chain is complete in all respects,
pointing towards the involvement of the appellants in commission of the
crime and ruling out any other possibility. He submits that the appeals
deserve to be dismissed. E

7. We have heard Mr. S. K. Bhattacharya, learned counsel for
the appellants and Mr. Rajesh K. Singh, learned counsel for the
respondent. We have perused the entire record, including the original
record.
F
8. Before proceeding to consider the rival submissions, be it noted
that in the present case, no direct evidence has been produced by the
prosecution regarding the involvement of the appellants in the commission
of the crime. The prosecution rests its case solely on circumstantial
evidence. The legal position as to how such matter should be examined
has been expounded in Padala Veera Reddy Vs. State of Andhra G
Pradesh and Ors.1 in the following words:-
“10. ….. This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence such evidence
1
(1989) Supp. (2) SCC 706
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258 SUPREME COURT REPORTS [2018] 13 S.C.R.

A must satisfy the following tests:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
B unerringly pointing towards guilt of the accused;
(3) 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
C
(4) 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
D innocence. (See Gambhir v. State of Maharashtra2.)
11. See also Rama Nand v. State of Himachal Pradesh3,
Prem Thakur v. State of Punjab 4 , Earabhadrapa alias
Krishnappa v. State of Karnataka 5, Gian Singh v. State of
Punjab6, Balwinder Singh v. State of Punjab.7"
E
9. In Mulakh Raj & Ors. Vs. Satish Kumar & Ors.8, the Court
succinctly restated the legal position in paragraph 4 as under:
“4. ……Undoubtedly this case hinges upon circumstantial
evidence. It is trite to reiterate that in a case founded on
circumstantial evidence, the prosecution must prove all the
F
circumstances connecting unbroken chain of links leading
to only one inference that the accused committed the crime.
If any other reasonable hypothesis of the innocence of the
accused can be inferred from the proved circumstances,
the accused would be entitled to the benefit. What is
G 2
(1982) 2 SCC 351; AIR 1982 SC 1157
3
(1981) 1 SCC 511; AIR 1981 SC 738
4
(1982) 3 SCC 462; (1983) 1 SCR 822; AIR 1983 SC 61
5
(1983)Cri LJ 846; (1983) 2 SCC 330
6
1986 Supp (1) SCC 676; AIR 1987 SC 1921
7
(1987) 1 SCC 1; AIR 1987 SC 350
H 8
(1992) 3 SCC 43
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 259
[A. M. KHANWILKAR, J.]

required is not the quantitative but qualitative, reliable and A
probable circumstances to complete the chain connecting
the accused with the crime. If the conduct of the accused in
relation to the crime comes into question the previous and
subsequent conduct are also relevant facts. Therefore, the
absence of ordinary course of conduct of the accused and
B
human probabilities of the case also would be relevant. The
court must weigh the evidence of the cumulative effect of
the circumstances and if it reaches the conclusion that the
accused committed the crime, the charge must be held
proved and the conviction and sentence would follow.”
(emphasis supplied) C
10. Let us revert to the circumstances which commended to the
trial court and also the High Court to take the view that the chain of
proved circumstances left no manner of doubt that the accused alone
were involved in the commission of the offence in question. Those
proved circumstances can be delineated as follows : D
(i) Information regarding the missing persons (Zahida and Ishlam)
was given by the village watchman, viz., Shababul (P.W.7).
(ii) The fact that the two named persons had gone missing for
about two months was reinforced after the police visited the
village to verify the same and in particular the “admission of E
accused - Asar Mohammed (appellant No.1)” that the two
missing persons have been murdered by him and the other
two accused, viz., Asraf Mohammed and Akhtar (appellant
Nos.2 and 3 respectively) and “their dead bodies were dumped
by him in the septic tank in the backyard of their house.” F
(iii) No ‘missing report’ was lodged by the appellants in respect
of Zahida and Ishlam, for reasons best known to them.
(iv) Appellant No.1 told the police that he would show the place
where the dead bodies were dumped and he led the police
party to that spot in the backyard of the house of the appellants, G
which was within his exclusive knowledge and opened the lid
of the septic tank himself to facilitate taking out the two dead
bodies which he admitted as that of Zahida and Ishlam.
(v) One of the two dead bodies recovered from the septic tank in
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260 SUPREME COURT REPORTS [2018] 13 S.C.R.

A the backyard of the house of the appellants was of a full
grown-up female around 32 years of age and another of a
male child of about 11 years of age which corresponded with
the age of Zahida and Ishlam respectively.
(vi) The dead bodies were dumped more than one month before
B the same were removed from the septic tank in a highly
decomposed condition.
(vii) Ante-mortem injuries were noticed on the vital part of the
neck on both the dead bodies which, according to the medical
evidence, was the cause of death due to asphyxia and a case
C of homicidal death.
(viii)The accused neither disputed the identity of the two dead
bodies being that of Zahida and Ishlam nor offered any
explanation, even though they were confronted with the
incriminatory evidence.
D (ix) No evidence has been produced nor any explanation has been
offered by the accused regarding the reason as to why they
did not lodge a ‘missing complaint/report’ in respect of Zahida
and Ishlam, who were closely related to them and were staying
in the same house; nor have they produced any evidence that
E both of them were still alive and were residing elsewhere.
Similarly, no explanation has been offered by them regarding
the cause of death of Zahida and Ishlam, or for that matter,
the circumstances in which their dead bodies were found in
the septic tank in the backyard of their house and also about
the ante-mortem injuries noticed on the vital part of the dead
F bodies which, as per the medical evidence, was the cause of
death due to asphyxia.
11. The trial court as well as the High Court, after analysing the
evidence on record including the evidence of PWs 4 to 10, had discerned
the above circumstances pointing towards the involvement of the accused
G in the commission of the crime. Both the courts have taken note of the
fact that Begum Bano (PW-1); Haji Iqbal (PW-2); and Nawab Jan (PW-
3) were declared hostile, as a result of which the factum of motive
behind the murder of Zahida and Ishlam could not be established by the
prosecution. Notably, even these hostile witnesses (PWs 1 to 3) have
not disputed the relationship of Zahida and Ishlam with the accused and
H
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 261
[A. M. KHANWILKAR, J.]

the fact that they were residing with the accused in the same house A
before they went missing. Be that as it may, both the courts have ruled
that other proved circumstances emanating from the evidence produced
by the prosecution, coupled with the abject silence of the accused
including having failed to offer any explanation with regard to the
incriminatory circumstances referred to above, was sufficient to bring
B
home the guilt against them and no other conclusion could be deduced
except that the accused were responsible for the murder of Zahida and
Ishlam. They were closely related to the deceased (as Zahida was the
second wife of accused Akhtar (appellant No.3) and Ishlam was the
son born in wedlock between them; and appellant nos.1 and 2 were the
step sons of Zahida and step brothers of Ishlam). All of them were C
residing in the same house before Zahida and Ishlam went missing for
about two months. That fact was reported by Shababul (PW-7) to the
police. The fact that Shababul is on the payroll of the police cannot be
the basis to disregard the proved fact that Zahida and Ishlam had gone
missing for about two months before it was so reported to the police.
D
None of the appellants have either disowned their relationship with Zahida
and Ishlam or bothered to produce any tittle of evidence in defence to
show that Zahida and Ashlam were still alive and residing elsewhere.
This Court in Nika Ram Vs. State of Himachal Pradesh9, noted that
the accused and deceased (his wife) resided together and as the accused
failed to offer any cogent explanation about the circumstances in which E
his wife died, it pointed towards his guilt and thus, the Court deduced
such inference. Suffice it to observe that the fact that PW-1, PW-2 and
PW-3 became hostile and the prosecution could not establish the factum
of motive cannot be the basis to doubt the correctness of the finding of
guilt recorded by the two courts against the accused on the basis of
F
other proved circumstances including the confession of the accused No.1
about the murder of Zahida Begum and Ishlam and more importantly,
having dumped the dead bodies in the septic tank in the backyard of
their house and to have led the police to that place from where the two
dead bodies, whose identity also has not been disputed, came to be
recovered, coupled with the medical evidence that the cause of death of G
the two dead persons was due to the ante-mortem injury caused on the
neck resulting in their death due to asphyxia and is a homicidal death.
12. After perusing the entire evidence and taking the totality of
9
(1972) 2 SCC 80
H
262 SUPREME COURT REPORTS [2018] 13 S.C.R.

A the proved circumstances into account, we are in agreement with the
conclusion reached by the trial court, which came to be affirmed by the
High Court, regarding finding of guilt against appellant No.1 – Asar
Mohammed, who had confessed to the police and also led the police
party to the place where the dead bodies were dumped. In Trimukh
Moroti Kirkan Vs. State of Maharashtra10, the Court explicated that if
B
an offence takes place inside the privacy of a house where the accused
have all the opportunity to plan and commit the offence at the time and
in circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if the
strict principle of circumstantial evidence, is insisted upon. The Court
C expounded thus:
“14. If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the opportunity
to plan and commit the offence at the time and in circumstances
of their choice, it will be extremely difficult for the prosecution to
D lead evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed above, is insisted
upon by the Courts. A Judge does not preside over a criminal
trial merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not escape.
Both are public duties. (See Stirland v. Director of Public
E Prosecution11 - quoted with approval by Arijit Pasayat, J. in
State of Punjab v. Karnail Singh12). The law does not enjoin
a duty on the prosecution to lead evidence of such character
which is almost impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is to lead
F such evidence which it is capable of leading, having regard
to the facts and circumstances of the case. Here it is
necessary to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him. Illustration (b) appended to this section throws
G some light on the content and scope of this provision and it
reads:
‘(b) A is charged with traveling on a railway without ticket.
10
(2006) 10 SCC 681
11
1994 AC 315; (1994) 2 AII ER 13 (HL)
H 12
(2003) 11 SCC 271
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 263
[A. M. KHANWILKAR, J.]

The burden of proving that he had a ticket is on him.’ A
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases B
of circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of
the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to
how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no C
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and
there is no duty at all on an accused to offer any explanation.
xxx xxx xxx
D
21. In a case based on circumstantial evidence where no
eye- witness account is available, there is another principle
of law which must be kept in mind. The principle is that
when an incriminating circumstance is put to the accused
and the said accused either offers no explanation or offers
an explanation which is found to be untrue, then the same E
becomes an additional link in the chain of circumstances to
make it complete. This view has been taken in a catena of
decisions of this Court. [See State of Tamil Nadu v. Rajendran13
(SCC para 6); State of U.P. v. Dr. Ravindra Prakash Mittal14
(SCC para 39 : AIR para 40); State of Maharashtra v. Suresh15 F
(SCC para 27); Ganesh Lal v. State of Rajasthan16 (SCC para
15) and Gulab Chand v. State of M.P.17 (SCC para 4).]
22. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to
show that shortly before the commission of crime they were seen G
together or the offence takes placed in the dwelling home where
13
(1999) 8 SCC 679
14
(1992) 3 SCC 300; AIR 1992 SC 2045
15
(2000) 1 SCC 471
16
(2002) 1 SCC 731
17
(1995) 3 SCC 574 H
264 SUPREME COURT REPORTS [2018] 13 S.C.R.

A the husband also normally resided, it has been consistently held
that if the accused does not offer any explanation how the wife
received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is
responsible for commission of the crime. In Nika Ram v. State of
Himachal Pradesh18 it was observed that the fact that the accused
B
alone was with his wife in the house when she was murdered
there with ‘khokhri’ and the fact that the relations of the accused
with her were strained would, in the absence of any cogent
explanation by him, point to his guilt. In Ganeshlal v. State of
Maharashtra19 the appellant was prosecuted for the murder of
C his wife which took place inside his house. It was observed that
when the death had occurred in his custody, the appellant is under
an obligation to give a plausible explanation for the cause of her
death in his statement under Section 313 Cr.P.C. The mere denial
of the prosecution case coupled with absence of any
explanation were held to be inconsistent with the innocence
D
of the accused, but consistent with the hypothesis that the
appellant is a prime accused in the commission of murder
of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal20
the medical evidence disclosed that the wife died of strangulation
during late night hours or early morning and her body was set on
E fire after sprinkling kerosene. The defence of the husband was
that wife had committed suicide by burning herself and that he
was not at home at that time. The letters written by the wife to
her relatives showed that the husband ill-treated her and their
relations were strained and further the evidence showed that both
of them were in one room in the night. It was held that the chain
F
of circumstances was complete and it was the husband who
committed the murder of his wife by strangulation and accordingly
this Court reversed the judgment of the High Court acquitting the
accused and convicted him under Section 302 IPC. In State of
Tamil Nadu v. Rajendran21 the wife was found dead in a hut
G which had caught fire. The evidence showed that the accused
and his wife were seen together in the hut at about 9.00 p.m. and
18
Supra @ Footnote 9
19
(1992) 3 SCC 106
20
Supra @ Footnote 14
21
Supra @ Footnote 13
H
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 265
[A. M. KHANWILKAR, J.]

the accused came out in the morning through the roof when the A
hut had caught fire. His explanation was that it was a case of
accidental fire which resulted in the death of his wife and a
daughter. The medical evidence showed that the wife died due to
asphyxia as a result of strangulation and not on account of burn
injuries. It was held that there cannot be any hesitation to come to
B
the conclusion that it was the accused (husband) who was the
perpetrator of the crime.”
(emphasis supplied)
13. It is a settled legal position that the facts need not be self-
probatory and the word “fact” as contemplated in Section 27 of the C
Evidence Act is not limited to “actual physical material object”. The
discovery of fact arises by reason of the fact that the information given
by the accused exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place. It includes a discovery
of an object, the place from which it is produced and the knowledge of
the accused as to its existence. It will be useful to advert to the exposition D
in the case of Vasanta Sampat Dupare v. State of Maharashtra22, in
particular, paragraphs 23 to 29 thereof. The same read thus :
“23. While accepting or rejecting the factors of discovery, certain
principles are to be kept in mind. The Privy Council in Pulukuri
Kotayya v. King Emperor23 has held thus: (IA p. 77) E

“… it is fallacious to treat the ‘fact discovered’ within
the section as equivalent to the object produced; the
fact discovered embraces the place from which the object
is produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this F
fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in
custody that ‘I will produce a knife concealed in the roof of
my house’ does not lead to the discovery of a knife; knives G
were discovered many years ago. It leads to the discovery
of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to
22
(2015) 1 SCC 253
23
AIR 1947 PC 67
H
266 SUPREME COURT REPORTS [2018] 13 S.C.R.

A have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement the
words be added ‘with which I stabbed A’, these words are
inadmissible since they do not relate to the discovery of the
knife in the house of the informant.”
B 24. In Mohd. Inayatullah v. State of Maharashtra24, while
dealing with the ambit and scope of Section 27 of the Evidence
Act, the Court held that: (SCC pp. 831-32, paras 11-13)
“11. Although the interpretation and scope of Section 27 has
been the subject of several authoritative pronouncements, its
C application to concrete cases is not always free from difficulty.
It will therefore be worthwhile at the outset, to have a short
and swift glance at the section and be reminded of its
requirements. The section says:
‘27. How much of information received from accused
D may be proved.—Provided that, when any fact is deposed to
as discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved.’
E
12. The expression ‘provided that’ together with the phrase
‘whether it amounts to a confession or not’ show that the section
is in the nature of an exception to the preceding provisions
particularly Sections 25 and 26. It is not necessary in this case
to consider if this section qualifies, to any extent, Section 24,
F also. It will be seen that the first condition necessary for
bringing this section into operation is the discovery of a
fact, albeit a relevant fact, in consequence of the
information received from a person accused of an
offence. The second is that the discovery of such fact
G must be deposed to. The third is that at the time of the
receipt of the information the accused must be in police
custody. The last but the most important condition is
that only ‘so much of the information’ as relates distinctly
to the fact thereby discovered is admissible. The rest of
24
H (1976) 1 SCC 828 ; (1976) 1 SCR 715
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 267
[A. M. KHANWILKAR, J.]

the information has to be excluded. The word ‘distinctly’ A
means ‘directly’, ‘indubitably’, ‘strictly’, ‘unmistakably’. The
word has been advisedly used to limit and define the scope of
the provable information. The phrase ‘distinctly relates to the
fact thereby discovered’ is the linchpin of the provision. This
phrase refers to that part of the information supplied by the
B
accused which is the direct and immediate cause of the
discovery. The reason behind this partial lifting of the ban against
confessions and statements made to the police, is that if a fact
is actually discovered in consequence of information given by
the accused, it affords some guarantee of truth of that part,
and that part only, of the information which was the clear, C
immediate and proximate cause of the discovery. No such
guarantee or assurance attaches to the rest of the statement
which may be indirectly or remotely related to the fact
discovered.
13. At one time it was held that the expression ‘fact discovered’ D
in the section is restricted to a physical or material fact which
can be perceived by the senses, and that it does not include a
mental fact (see Sukhan v. Emperor 25 ; Ganu Chandra
Kashid v. Emperor26). Now it is fairly settled that the
expression ‘fact discovered’ includes not only the
physical object produced, but also the place from which E
it is produced and the knowledge of the accused as to
this (see Pulukuri Kotayya v. King Emperor27; Udai Bhan
v. State of U.P.28).”
(emphasis in original)
25. In Aftab Ahmad Anasari v. State of Uttaranchal29 after F
referring to the decision in Pulukuri Kotayya30, the Court adverted
to seizure of clothes of the deceased which were concealed by
the accused. In that context, the Court opined that (Aftab Ahmad
Anasari case, SCC p. 596, para 40)
“40. … the part of the disclosure statement, namely, that the G
25
AIR 1929 Lah 344
26
AIR 1932 Bom 286
27
Supra @ Footnote 23
28
AIR 1962 SC 1116 ; (1962) 2 Cri LJ 251 ; 1962 Supp (2) SCR 830
29
(2010) 2 SCC 583
30
Supra @ Footnote 23 H
268 SUPREME COURT REPORTS [2018] 13 S.C.R.

A appellant was ready to show the place where he had concealed
the clothes of the deceased is clearly admissible under Section
27 of the Evidence Act because the same relates distinctly to
the discovery of the clothes of the deceased from that very
place. The contention that even if it is assumed for the sake of
argument that the clothes of the deceased were recovered
B
from the house of the sister of the appellant pursuant to the
voluntary disclosure statement made by the appellant, the
prosecution has failed to prove that the clothes so recovered
belonged to the deceased and therefore, the recovery of the
clothes should not be treated as an incriminating circumstance,
C is devoid of merits.”
26. In State of Maharashtra v. Damu31 it has been held as follows:
(SCC p.283, para 35)
“35. … It is now well settled that recovery of an object is not
discovery of a fact as envisaged in [Section 27 of the Evidence
D Act, 1872]. The decision of the Privy Council in Pulukuri
Kotayya v. King Emperor32 is the most quoted authority for
supporting the interpretation that the ‘fact discovered’ envisaged
in the section embraces the place from which the object was
produced, the knowledge of the accused as to it, but the
E information given must relate distinctly to that effect.”
The similar principle has been laid down in State of Maharashtra
v. Suresh33, State of Punjab v. Gurnam Kaur34, Aftab Ahmad
Anasari v. State of Uttaranchal35, Bhagwan Dass v. State (NCT
of Delhi)36, Manu Sharma v. State (NCT of Delhi)37 and Rumi
F Bora Dutta v. State of Assam38.
27. In the case at hand, as is perceptible, the recovery
had taken place when the appellant was accused of an
offence, he was in custody of a police officer, the recovery

31
G (2000) 6 SCC 269
32
Supra @ Footnote 23
33
(2000) 1 SCC 471
34
(2009) 11 SCC 225
35
(2010) 2 SCC 583
36
(2011) 6 SCC 396
37
(2010) 6 SCC 1
38
H (2013) 7 SCC 417
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 269
[A. M. KHANWILKAR, J.]

had taken place in consequence of information furnished A
by him and the panch witnesses have supported the seizure
and nothing has been brought on record to discredit their
testimony.
28. Additionally, another aspect can also be taken note of.
The fact that the appellant had led the police officer to find out B
the spot where the crime was committed, and the tap where he
washed the clothes eloquently speak of his conduct as the same
is admissible in evidence to establish his conduct. In this context
we may refer with profit to the authority in Prakash Chand v.
State (Delhi Admn.)39 wherein the Court after referring to the
decision in H.P. Admn. v. Om Prakash40 held thus: (Prakash Chand C
case, SCC p.95, para 8)
“8. … There is a clear distinction between the conduct
of a person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant fact D
and the statement made to a police officer in the course
of an investigation which is hit by Section 162 of the
Criminal Procedure Code. What is excluded by Section 162
of the Criminal Procedure Code is the statement made to a
police officer in the course of investigation and not the evidence E
relating to the conduct of an accused person (not amounting to
a statement) when confronted or questioned by a police officer
during the course of an investigation. For example, the evidence
of the circumstance, simpliciter, that an accused person led a
police officer and pointed out the place where stolen articles
or weapons which might have been used in the commission of F
the offence were found hidden, would be admissible as conduct,
under Section 8 of the Evidence Act, irrespective of whether
any statement by the accused contemporaneously with or
antecedent to such conduct falls within the purview of Section
27 of the Evidence Act.” G
41
29. In A.N. Venkatesh v. State of Karnataka it has been ruled
that: (SCC p.721, para9)
39
(1979) 3 SCC 90
40
(1972) 1 SCC 249
41
(2005) 7 SCC 714
H
270 SUPREME COURT REPORTS [2018] 13 S.C.R.

A “9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence
of the circumstance, simpliciter, that the accused pointed
out to the police officer, the place where the dead body
of the kidnapped boy was found and on their pointing
B
out the body was exhumed, would be admissible as
conduct under Section 8 irrespective of the fact whether
the statement made by the accused contemporaneously
with or antecedent to such conduct falls within the
purview of Section 27 or not as held by this Court in
C Prakash Chand v. State (Delhi Admn.). Even if we hold
that the disclosure statement made by the appellants-
accused (Exts. P-15 and P-16) is not admissible under
Section 27 of the Evidence Act, still it is relevant under
Section 8. The evidence of the investigating officer and PWs
1, 2, 7 and PW 4 the spot mahazar witness that the accused
D
had taken them to the spot and pointed out the place where the
dead body was buried, is an admissible piece of evidence under
Section 8 as the conduct of the accused. Presence of A-1
and A-2 at a place where ransom demand was to be
fulfilled and their action of fleeing on spotting the police
E party is a relevant circumstance and are admissible under
Section 8 of the Evidence Act.”
(emphasis supplied)
14. Applying the principle expounded by this Court, we have no
hesitation in affirming the finding of guilt recorded against appellant No.1
F – Asar Mohammed.
15. The question is whether the same evidence or proved
circumstances can be used against the other two appellants, namely,
Asraf Mohammed and Akhtar Mohammad. Indisputably, except the
confession of the co-accused – Asar Mohammed (appellant No.1), the
G prosecution has not produced any independent substantive evidence to
even remotely suggest that appellant Nos.2 and 3 were involved in
committing the murder of Zahida and Ishlam. By now, it is well settled
that confession of the co-accused by itself cannot be the basis to proceed
against the other accused unless something more is produced to indicate
H their involvement in the commission of the crime. This Court in Kashmira
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 271
[A. M. KHANWILKAR, J.]

Singh v. State of Madhya Pradesh42, relying upon the decision of the A
Privy Council in Bhuboni Sahu v. R.43, Periaswami Moopan, In re44
as well as in Emperor v. Lalit Mohan Chuckerbutty45, has explicated
the efficacy of confession of an accused person and whether it can be
used against the co-accused. The exposition in Kashmira Singh has
been approved by the Constitution Bench of this Court in Haricharan
B
Kurmi v. State of Bihar46, in particular paragraph 12 which reads thus :
“12. As we have already indicated, this question has been
considered on several occasions by judicial decisions and it has
been consistently held that a confession cannot be treated as
evidence which is substantive evidence against a co-accused
person. In dealing with a criminal case where the C
prosecution relies upon the confession of one accused
person against another accused person, the proper
approach to adopt is to consider the other evidence against
such an accused person, and if the said evidence appears
to be satisfactory and the court is inclined to hold that the D
said evidence may sustain the charge framed against the
said accused person, the court turns to the confession with
a view to assure itself that the conclusion which it is inclined
to draw from the other evidence is right. As was observed
by Sir Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty a confession can only be used to ‘lend assurance E
to other evidence against a co-accused’. In Periaswami Moopan,
In re Reilly, J., observed that the provision of Section 30 goes not
further than this :
‘…where there is evidence against the co-accused
sufficient, if believed, to support his conviction, then the F
kind of confession described in Section 30 may be thrown
into the scale as an additional reason for believing that
evidence.’
In Bhuboni Sahu v. R. the Privy Council has expressed the same
view. Sir John Beaumont who spoke for the Board, observed that: G

42
1952 SCR 526
43
(1948-49) 76 IA 147
44
ILR (1931) 54 Mad 75
45
ILR (1911) 38 Cal 559
46
(1964) 6 SCR 623; AIR 1964 SC 1184
H
272 SUPREME COURT REPORTS [2018] 13 S.C.R.

A ‘…A confession of a co-accused is obviously evidence of a
very weak type. It does not indeed come within the definition
of ‘evidence’ contained in Section 3 of the Evidence Act. It is
not required to be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-examination. It is a
much weaker type of evidence than the evidence of an
B
approver, which is not subject to any of those infirmities.
Section 30, however, provides that the court may act;
but the section does not say that the confession is to
amount to proof. Clearly there must be other evidence.
The confession is only one element in the consideration
C of all the facts proved in the case; it can be put into the
scale and weighed with the other evidence.’
It would be noticed that as a result of the provisions contained in
Section 30, the confession has no doubt to be regarded as
amounting to evidence in a general way, because whatever is
D considered by the court is evidence; circumstances which are
considered by the court as well as probabilities do amount to
evidence in that generic sense. Thus, though confession may be
regarded as evidence in that generic sense because of the
provisions of Section 30, the fact remains that it is not evidence as
defined by Section 3 of the Act. The result, therefore, is that
E in dealing with a case against an accused person, the court
cannot start with the confession of a co-accused after it has
formed its opinion with regard to the quality and effect of
the said evidence, then it is permissible to turn to the
confession in order to receive assurance to the conclusion
F of guilt which the judicial mind is about to reach on the said
other evidence. That, briefly stated, is the effect of the provisions
contained in Section 30. The same view has been expressed by
this Court in Kashmira Singh v. State of M.P. where the decision
of the Privy Council in Bhuboni Sahu case has been cited with
approval.”
G
(emphasis supplied)
16. In view of the above, it is not permissible to proceed against
appellant nos.2 and 3 solely on the basis of the confession of appellant
No.1 made before the police, even if the relevant part of the confession
H
ASAR MOHAMMAD AND ORS. v. THE STATE OF U.P. 273
[A. M. KHANWILKAR, J.]

is admissible and has been duly proved. As no substantive evidence is A
forthcoming to show the involvement of appellant nos.2 and 3 for having
caused the murder of Zahida and Ishlam, it is not open to convict them
for offence punishable under Section 302, IPC. This is also because the
charge, as has been framed, is simpliciter for offence under Section 302
and not for offence punishable under Section 302 read with Section 34
B
of IPC or Section 302 read with Section 120-B of IPC. No evidence has
been produced by the prosecution in this regard. Resultantly, the finding
of guilt albeit concurrently recorded by the two courts against appellant
nos.2 and 3 for offence punishable under Section 302 IPC cannot be
sustained on facts or in law. These appellants, therefore, will have to be
acquitted in connection with offence punishable under Section 302 IPC. C
17. The next question is whether appellant Nos.2 and 3 can be
held guilty for offence punishable under Section 201 IPC. The fact that
appellant nos.2 and 3 cannot be convicted for offence punishable under
Section 302 IPC does not extricate them from the offence under Section
201 IPC. We say so because the proved circumstances discerned from D
the record leave no manner of doubt that Zahida and Ishlam were residing
along with the appellants in the same house. Further, Zahida was the
second wife of appellant No.3 and Ishlam was none other than the son
of appellant No.3 born in wedlock with Zahida. Zahida was the step
mother of appellant Nos.1 and 2 and Ishlam was their step brother. This
relationship has not been disputed. It is also an established fact that E
Zahida and Ishlam had suddenly gone missing for over two months.
Obviously, no efforts were made by appellant nos.2 and 3 to trace Zahida
and Ishlam nor did they think it necessary to report that fact to the local
police. This indeed cannot be a natural behavior or conduct of appellant
No.3, the husband of Zahida and father of minor son Ishlam. Further, F
appellant nos.2 and 3 have not challenged the identity of two dead bodies
found from the septic tank in the backyard of their house at the instance
of appellant No.1 – Asar Mohammed. No explanation whatsoever has
been offered by them as to why they did not report about the sudden
disappearance of Zahida and Ishlam (until their bodies were recovered
from the septic tank in the backyard of their house after two months). G
The concomitant is that appellant Nos.2 and 3 had knowledge that Zahida
and Ishlam had been murdered and their dead bodies were dumped in
the septic tank in the backyard of their house and yet, they did not disclose
that fact with an intention to screen appellant No.1 – Asar Mohammed,
H
274 SUPREME COURT REPORTS [2018] 13 S.C.R.

A the offender, from legal punishment. In other words, even though they
cannot be made liable for the murder of Zahida and Ishlam for want of
legal evidence in that regard, they would certainly be guilty of having
committed offence under Section 201 IPC as established from the proved
circumstances coupled with their abject failure to offer any explanation,
much less cogent explanation, about their conduct. The inevitable and
B
legitimate conclusion to be deduced is that they are guilty of offence
punishable under Section 201 IPC for which they have been rightly
convicted and sentenced by the trial court and which opinion of the trial
court has been affirmed by the High Court. As a result, the appeal filed
by appellant nos.2 and 3 would partly succeed only to the extent of
C acquitting them for offence punishable under Section 302 IPC.
18. In view of the above, the appeal filed by appellant No.1 –
Asar Mohammed is dismissed. Whereas, the appeal filed by appellant
Nos.2 and 3 – Asraf Mohammed and Akhtar, respectively, is partly
allowed by setting aside the conviction and sentence recorded against
D them for offence punishable under Section 302 IPC but the conviction
and sentence for offence punishable under Section 201 IPC against them
is upheld. Ordered accordingly.

Kalpana K. Tripathy Appeal disposed of.
E

F

G

H