INDRA DALALversusSTATE OF HARYANA

                     [2015] 7 S.C.R. 1083


                         INDRADALAL                                  A
                                v.
                    STATE OF HARYANA
             (CriminalAppeal No.1261 of2009)
                                                                     B
                         MAY29, 2015
        [A.K. SIKRI AND UDAY UMESH LALIT, JJ.]
     Penal Code, 1860: s. 302 r/w. s. 1208 - Contract killing;....
Accused came on a scooter to victim-deceased's house and             c
fired at his chest and head- Thereafter he threw the pistol at
the spot and ran away on the scooter- Previous grudge of
appellants-accused alleged - Conviction recorded against
appellants primarily on the basis of their confessional
statements and recovery of scooter from the house of                 D
appellant no. 1 - Held: The confessional statements were
recorded when these accused were in police custody- Such
statements were inadmissible having regard to ss. 25 and 26
- The information provided by all the accused/appellants in
the form of confessional statements, had not led to any              E
discovery - Recovery of scooter was made in the absence
of appellant - This recovery was pursuant to the statement
made by PW-2, the brother of the deceased and not on the
basis of any disclosure statements made by these appellants
- Likewise, insofar as confessional statement allegedly given        F
by appellant-J was concerned, that was again in another FIR
- Therefore, the situation contemplated uls. 27 of the
Evidence Act also did not get attracted - Even if the scooter
was recovered pursuant to the disclosure statement, it would         G
have made the fact of recovery of scooter only, as admissible
uls.27 of the Evidence Act, and it would not have made the
so-called confessional statements admissible which cannot
be held as proved against them - Prosecution failed to prove
                              1083                                   H
1084         SUPREME COURT REPORTS                 [2015] 7 S.C.R.


 A     beyond reasonable doubt, the charge of conspiracy against
       appellants - Conviction set aside - Evidence Act, 1872 -
       ss25 to 27.

       Evidence Act, 1872: ss.25 and 26- Philosophy behind
 B - Discussed.

           Words and phrases: 'Confession' - Meaning of -
       Discussed.

           Allowing the appeals, the Court
 c
            HELD: 1. The prosecution had produced one
       witness (PW-7), who was allegedly the witness of
       conspiracy. However, during trial, he was declared
       hostile. Therefore, there was no witness to this
 D     conspiracy. No doubt, such conspiracies are normally
       hatched in dark and clandestinely and there may not be
       any eye witnesses. The conviction was recorded by the
       trial court and upheld by the High Court against these
       appellants primarily on the basis of their confessional
 E     statements and recovery of the scooter from the house
       of appellant-I. The philosophy behind Sections 25 and
       26 of the Evidence Act is acceptance of a harsh reality
       that confessions are extorted by the police' officers by
 F     practicing oppression and torture or even inducement
       and, therefore, they are unworthy of any crodence. The
       provision absolutely excludes from evidence against the
       accused a confession made by him to a pc>lice officer.
       The word 'confession' has no where been defined.
 G     However, the courts have resorted to the dictionary
       meaning and explained that incriminating statements by
       the accused to the police suggesting the inference of
       the commission of the crime would amount to confession
       and, therefore, inadmissible under this provision. It is also
 H     defined to mean a direct acknowledgment of guilt and
           INDRADALALv. STATE OF HARYANA                    1085


 not the admission of any incriminating fact, however           A
 grave or conclusive. Section 26 of the Evidence Act
 makes all those confessions inadmissible when they are
 made by any person, whilst he is in the custody of a
 police officer, unless such a confession is made in the
 immediate presence of a Magistrate. Therefore, when a          B
 person is in police custody, the confession made by him
 even to a third person, that is other than a police officer,
 shall also become inadmissible. In the present case, not
 only the confessions were made to a police officer, such
 confessional statements were made by the appellants            C
 after their arrest while they were in police custody. The
 courts below had relied upon these confessions on the
 basis of these statements, coupled with 'other connected
 evidence available on the record', particularly the
                                                                0
 recovery of the scooter from the old house of appellant-
 ! and the disclosure/confessional statement made by
·appellant-J in another case which was proved by
 Inspector PW-15. This approach of the High Court is
 contrary to law. [Para 14, 16 to 20] [1093-F-H; 1094-H;        E
 1095-A, C-G; 1096-G-H; 1097-A-B]
    2. It is clear that Section 27 is in the form of proviso
to Sections 25 and 26 of the Evidence Act. It makes it
clear that so much of such information which is received
from a person accused of any offence, in the custody of F
a police officer, which has led to discovery of any fact,
may be used against the accused. Such information as
given must relate distinctly to the fact discovered. In the
present case, the information provided by all the G
accused/ appellants in the form of confessional
statements, has not led to any discovery. The recovery
of scooter is not related to the confessional statements
allegedly made by the appellants. This recovery was
pursuant to the statement made by PW-2, the brother of H
the deceased. It was not on the basis of any disclosure
1086         SUPREME COURT REPORTS                 [2015] 7 S.C.R.

 A statements made by these appellants. Likewise, insofar
   as confessional statement allegedly given by appellant-
   J is concerned, that is again in another FIR. Therefore,
   the situation contemplated under Section 27 of the
   Evidence Act also does not get attracted. Even if the
 B scooter was recovered pursuant to the disclosure
   statement, it would have made the fact of recovery of
   scooter only, as admissible under Section 27 of the
   Evidence Act, and it would not make the so-called
   confessional statements of the appellants admissible
 C which cannot be held as proved against them. [Para 23]
   [1097-F-H; 1098-A-D]
            3. PW-17, the Investigating Officer deposed in his
       statement that on July 13, 2001, the scooter allegedly
 D     used in the offence was recovered from the, house of
       appellant-I. It was parked in verandah and the same was
       taken into possession. On July 13, 2001, appellant-I was
       in jail, as she was arrested on June 02, 2001, when the
       so-called recovery was made. Recovery was, thus, made
·E     in her absence. PW-17 had earlier gone to the house of
       appellant-I immediately after the incident, but did not find
       any scooter. If the registration number of the sc:ooterwas
       given by PW-2 during investigation and the Investigating
       Officer had visited the house of appellant-I, how he could
 F     not find the scooter parked there with the same number
       on that date. All these facts cast a shadow of doubt on
       the alleged recovery of scooter from the house of
       appellant-I. Appellant-J has denied that the scooter in
       question belonged to him. In order to prove his
 G     ownership, the prosecution had produced PW-18,
       Registration Clerk with Regional Transport Office. No
       documents were produced to show the ownership of
       appellant-J. Only the report prepared by the clerk,
 H     allegedly on the basis of the record, is produced. That
       cannot partake the character of primary evidence. There
         INDRADALALv. STATE OF HARYANA                    1087


is no sufficient evidence to prove the ownership of the A
scooter in the name of appellant-J. The entire bucket of
evidence is either inadmissible putting the roadblock
creating by the Evidence Act or unbelievable/
untrustworthy. The prosecution has miserably failed to
prove, beyond reasonable doubt, the charge of B
conspiracy against these appellants with the aid of
Section 120-B of IPC. [Paras 28 to 30] [1101-D, E-H; 1102-
A-H; 1103-A]

    Bul/u Das v. State of Bihar (1998) 8 SCC 130; Mohd. C
Khalid v. State of West Bengal (2002) 7 SCC 334; Firozuddin
Basheeruddin & Ors. v. State of Kera/a (2001) 7 SCC 596;
State v. Nalini 1999 (3) SCR 1 : (1999) 5 SCC 253 - relied
on.
                                                            D
                    Case Law Reference

   (1998) 8 sec 130            relied on.     Para 19

   (2002) 1 sec 334            relied on.     Para 24
                                                              E
   (2001) 1 sec 596            relied on.     Para25

   1999 (3) SCR 1              relied on.     Para 20

    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1261 of2009 etc.                                          F

    From the Judgment and Order dated 03.03.2009 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 311-DB of2008.

                          WITH                                G

    Crl. A. No. 1620 of 2009
    Crl.A. No. 1189 of2011
    Sushil Kumar, Sanjay Jain, Sudarshan Singh Rawat,
Harpuneet Singh Rai, Daya Krishan Sharma for the Appellant.   H
1088        SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A         Deepak Thukral, Dr. Monika Gusain, Vishwa Pal Singh,
       Rajeev Kr. Singh for the Respondent.

           The Judgment of the Court was delivered by

 B          A.K. SIKRI, J. 1) First Information Report (FIR) No. 99
      dated May 24, 2001 was registered at Police Station: City
       Dadri, Haryana. In this FIR, five persons were implicated and
      made accused for committing the murder of orn~ Nand Karan
      (hereinafter referred to as the 'deceased'). Out of them, three
 c    appellants are before us who were tried together and convicted
      for the said offence by the Sessions Court vide judgment dated
      April 11, 2008, followed by the order of sentenGe dated April
      12, 2008 sentencing them for life imprisonment and also to
      pay a fine of 10,000 each for commission of the offence
 D    punishable under Section 120-B read with Section 302 of the
      Indian Penal Code, 1860. In default of payment of fine, it was
      directed that they would undergo simple impri:sonment for a
      period of one year each. One more person was also made
      accused and tried with these appellants. However, he was
 E    acquitted of the charges framed against him. Fifth person,
      Udeyveer@ Udey@ Sandeep, who was also an accused in
      the said charge-sheet, was convicted by a separate judgment
      pronounced on the same date, i.e. on April 11, 2008, and given
     the identical sentence. All the four convicted persons appealed
 F   to the High Court. The High Court dismissed these appeals
     affirming the conviction and sentence passed by the learned
     Additional Sessions Judge-II, Bhiwani. Udeiyveer has not
     preferred any further appeal. The three appellants before us
     in these three appeals, however, chose to challenge the
G    judgment of the High Court by filing special leave petitions, in
     which leave was granted earlier.

       2) Now, we take note of the case of the prosecution, in
  brief, which can be safely culled out from the impugned
H judgment of the High Court as there is no dispute that the said
           INDRA DALAL v. STATE OF HARYANA                      1089
                    (A.K. SIKRI, J.]

judgment correctly records the prosecution version:                 A

     3) The deceased Nand Karan, a retired Master, and his
wife Suraj Kaur, were residing in the house known as 'Lal Kothi'
situated on the Loharu Road, Dadri. On May 24, 2001, at
about 8.00 p.m., the deceased, his wife and his brother Harish      B
Chander Godara were present in the house. While the
deceased's wife was watering the plants in the lawn, the
deceased inside the room and his brother on the roof, one
young boy aged about 22-25 years, came on a scooter. He
told Su raj Kaur that he had come from Rohtak and wanted to         C
meet Master Nand Karan. When she was talking with that
     '
boy, the deceased came out of the house to the gate. Su raj
Kaur told the deceased that a boy had come to meet him.
Soon thereafter, the boy took out a pistol from his pant's pocket
and fired at the deceased on his chest. Another shot was fired      D
at the head of the deceased. The deceased fell down crying.
After hearing the sound of shots fired, Harish Chander Godara,
brother of the deceased, immediately came down to the spot.
After throwing the pistol at the spot, the boy ran away on the
scooter on which he came. After the occurrence, many                E
persons, including Suresh Kumar, s/o. Hoshiar Singh, and
Jaipal, s/o. Kamal Singh, reached the spot. After arranging
vehicle, they took the deceased to the hospital, where he was
declared dead. Dr. H.L. Beniwal (PW-3), who attended the            F
deceased at the hospital, declared him dead and sent a ruqqa
(Exhibit PE) to the Station House Officer, Dadri Police Station
at 9.10 p.m., regarding the dead body being brought by Suresh
Kumar and Jaipal.

      4) In the hospital, statement of Suraj Kaur (Exhibit PA) was G
  recorded by Sub-Inspector Ram Chander (PW-17) on May 24,
  2001 at 11.00 p.m. In her statement, she narrated the
  abovesaid occurrence and further stated that her husband was
  got murdered by Dr. Indra Dalal, her brother Bijender@ Vijay H
. and Mahabir, through some unknown person, by hatching a
1090       SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A conspiracy. The cause of grudge, as stated by her, was that
   an allegation of murder was levelled by them against her
   husband, her son Ravinder Kumar and one Sandeep, s/o.
   Mahabir Singh and in that regard a criminal trial under Section
   302 IPC was pending. Her son and Sandeep are in jail in
 B connection with the alleged murder. However, her husband was
   released on bail about three months back. Due to the said
   grudge, Indra Dalal, her brother Bijender@Vijay and Mahabir
   committed the murder of her husband by hiring a contract killer
   in a conspiracy. On the basis of the said statement, FIR
 C (Exhibit PA/1) was registered at Police Station Dadri on May
   24, 2001 at 11.10 p.m. Special report of the said FIR was
   received by the area Magistrate at 12.30 a.m. on May 25, 2001.

        5) On May 25, 2001, post mortem of the deceased was
 D conducted by Dr. Anil Chaudhary (PW-4), Dr. H. L. Beniwal and
   Dr. Giri Raj. They found two gun shot injuries on the body of the
   deceased, one on the chest and the other on the brain. One
   pallet each was got removed from those injuries. In the post
   mortem report (Exhibit PF), the cause of death ofthe deceased
 E was stated to be haemorrhage and shock due to gun shot injury
   on vital organs.

      6) The prosecution case, thus, in nutshell is this: One
  Dipender@ Banti, who was the son of the appellant Indra Dalal
F and nephew of Bijender, was murdered, in which deceased
  Nand Karan was implicated along with his sons, namely,
  Ravinder Kumar and Sandeep, who were even in jail in that
  connection. In order to take revenge, the appellants Indra Dalal
  and her brothers Bijender and Mahabir had hatched a
G conspiracy to kill Nand Karan, for which they enticed Udeyveer
  and got him murdered through him.

      7) Investigation was conducted on the basis of the
  aforesaid FIR. During the investigation, statements of Suresh
H and Harish Chander Godara were recorded. Harish Chander
          INDRADALAL v. STATE OF HARYANA                    1091
                  [AK. SIKRI, J.)

Godara mentioned that the registration number of the scooter, A
on which the assailant Udeyveer came, was HR 20G 1102.
The clothes of the deceased, one fired bullet, one cartridge of
fired bullet were seized along with certain other articles, on
which CFL report was obtained. Post mortem was conducted
on the body of the deceased.                                    B

     8) On May 31, 2001, appellant Bijenderwas arrested. He
allegedly made a disclosure/confessional statement (Exhibit
PH) admitting the aforesaid conspiracy and motive for
committing the murder of the deceased. On June 02, 2001, C
appellant Indra Dalal was arrested and she also made a similar
disclosure/confessional statement (Exhibit PT). On the same
day, another confessional statement (Exhibit PK) was made
by Bijender.
                                                                 D.
     9) As per the investigation, Police recorded the statement
of one Pradeep Kumar, s/o. Daya Nand, on July 07, 2001,
who was a resident of Charkhi Dadri. He stated that on May
27, 2001, he had went to the clinic of the appellant Indra Dalal
for medical checkup of his wife. At that time, Bijender came E
there and both the appellants went inside. When she did not
come out for some time, Pradeep Kumar went near the door,
which was slightly open, and heard the talks of both the
appellants, as per which Bijender·was telling Indra Dalal that
he had engaged Udeyveer for killing Nand Karan. During F
investigation, a cream colour LML scooter bearing registration
No. ~R 20G 1102 wa~ recovered on July 13, 2001 from the
old house of Indra Dalal vide recovery Exhibit PD.

     10) Thereafter, the other appellant Jaibir was arrested on G
December 10, 2001, who also gave his disclosure/
confessional statement (Exhibit PL) to the same effect as was
given by the other two appellants Indra Dalal and Bijender. He
further stated that he had given the scooter in question to
Udeyveer and Ramesh for that purpose. On his naming H
1092        SUPREME COURT REPORTS                     [2015] 7 S.C.R.


 A Ramesh, he was also arrested and his disclosure/ confessional
   statement (Exhibit PO) was recorded on December 23, 2001
   on the same lines. After investigation, challan was filed against
   these accused persons, except Udeyveer, who could not be
   arrested and was declared a proclaimed offender. However,
 B during the pendency of the trial, Udeyveer was also arrested
   on February 07, 2004. His disclosure/confessional statement
   (Exhibit PN) was recorded as well.

           11) During the trial, in the challan/case filed against these
 C   appellants and also against Ramesh, the prosecution
     examined eighteen witnesses. These include Suraj Kaur/
     complainant (PW-1 ), who supported the prosecution version,
     Harish ChanderGodara, brother of the deceased (PW-2), who
      had also supported the prosecution version, Dr. H.L. Beniwal
 D   (PW-3), who had sent ruqqa (Exhibit PE) to the Station House
     Officer, Police Station Dadri, Dr. Anil Chaudhary (PW-4), who
     conducted the post mortem of the deceased, and Pradeep
     Kumar (PW-7), who was the alleged witness of conspiracy,
     but he did not support the prosecution version and was
 E   declared hostile. Other witnesses were mostly police officials
     who proved one or the other disclosure/confessional
     statements of these accused persons as well as the
     Investigating Officer who conducted the investigation. Guiab
 F   Singh (PW-18), Registration Clerk with the Regional Transport
     Office, was also produced, who stated that as per the rec~rd,
     Jaibir s/o. Kanshi Ram, was the owner of the scooter which
     was seized by the Police. In the statements of the accused
     persons recorded under Section 313 of the Code of Criminal
G    Procedure, 1973, all of them stated that they were innocent
     and were falsely implicated in the case. They also pleaded
     that their confessional statements were recorded by putting
     pressure upon them to compromise the matter of murder of
     son of Indra Dalal.
H
         12) Supplementary charge-sheet was filed against
           INDRA DALAL v. STATE OF HARYANA                    1093
                    [A.K. SIKRI, J.]

accused Udeyveer, in which the prosecution examined A
seventeen witnesses. However, since Udeyveer has not filed
any appeal, we are eschewing the discussion pertaining to
the evidence appearing against him.

     13) As mentioned above, the trial court acquitted only       B
Ramesh and convicted all other accused persons and the High
Court has affirmed the same. The reading of the impugned
judgment of the High Court would disclose that major portion
of the judgment is devoted to the alleged role of accused
Udeyveer and the Court came to the conclusion that there was      C
sufficient evidence against him proving his guilt, who had
actually murdered the deceased. Insofar as the appellants are
concerned, admittedly they have not taken active part in the
commission of crime, namely, there is no actus reus. However,
they have been implicated as the accused who actively hatched     D
conspiracy to murder the deceased and for this purpose hired
the assassin Udeyveerfor a consideration of 3,00,000/-. Thus,
the central issue in these appeals, qua these appellants, is as
to whether the prosecution has been able to prove the
involvement of the appellants with the aid of Section 120-B of    E
thelPC.

     14)As mentioned above, the prosecution had produced
one witness, Pradeep Kumar (PW-7), who was allegedly the
witness of conspiracy. However, during trial, he did not support F
the prosecution version and was declared hostile. Therefore,
there is no witness -to this conspiracy. No doubt, such
conspiracies are normally hatched in dark and clandestinely
and there may not be any eye witnesses. We have to see from
the circumstantial evidence or other evidence produced as to G
whether such a charge is established or not. In the present
case, the conviction is recorded by the trial court and upheld
by the High Court against these appellants primarily on the
basis of their confessional statements and recovery of the H
scooter from the house of Indra Dalal. Therefore, it is to be
1094        SUPREME COURT REPORTS                  [2015] 7 S.C.R.


 A examined as to whether conviction could be sustained on the
   basis of such statements.

         15) Mr. Sushi! Kumar, learned senior counsel appearing
   for the appellants Indra Dalal and Bijender, argued that these
 B confessional statements were admittedly recorded after the
   arrest of these accused and when these accused were in police
   custody. Therefore, such statements were inadmissible having
   regard to the provisions of Sections 25 and 26 of the Indian
   Evidence Act, 1872. Section 25 of the Evidence Act mandates
 C so, in certain and unequivocal terms, as is clear from the
   language thereof. It reads as follows:

           "25. Confession to police officer not to be proved. -
           No confession made to a police officer shall be proved
 o         as against a person accused of any offence."

           Likewise, Section 26 makes any such statement
       inadmissible if given when in police custody. It reads:

          "26. Confession by accused while in custody of
 E        police not to be proved against him. - No confession
          made by any person whilst he is in the custody of a police-
          officer, unless it be made in the immediate presence of a
          Magistrate, shall be proved as against such person.
 F         Explanation. - In this section "Magistrate" does not
          include the head of a village discharging magisterial
          functions (in the Presidency of Fort St. George or
          elsewhere), unless such headman is a Magistrate
          exercising the powers of a Magistrate under the Code of
 G        Criminal Procedure, 1882."

        16) The philosophy behind the aforesaid provision is
   acceptance of a harsh reality that confessions are extorted by
   the police officers by practicing oppression and torture or even
 H inducement and, therefore, they are unworthy of any credence.
              INDRA DALAL v. STATE OF HARYANA                  1095
                       [A.K. SIKRI, J.]

The provision absolutely excludes from evidence against the A
accused a confession made by him to a police officer. This
provision applies even to those confessions which are made
to a police officer who may not oth.erwise be acting as such. If
he is a police officer and confession was made in his
presence, in whatever capacity, the same becomes B
inadmissible in evidence. This is the substantive rule of law
enshrined under this provision and this strict rule has been
reiterated countlessly by this Court as well as the High Courts.

      17) The word 'confession' has no where been defined. C
However, the courts have resorted to the dictionary meaning
and explained that incriminating statements by the accused to
the police suggesting the inference of the commission of the
crime would amount to confession and, therefore, inadmissible
under this provision. It is also defined to mean a direct D
acknowledgment of guilt and not the admission of any
incriminating fact, however grave or conclusive. Section 26 of
the Evidence Act makes all those confessions inadmissible
when they are made by any person, whilst he is in the custody
of a police officer, unless such a confession is made in the E
immediate presence of a Magistrate. Therefore, when a
person is in police custody, the confession made by him even
to a third person, that is other than a police officer, shall also
become inadmissible.
                                                                   F
     18) In the present case, as pointed out above, not only the
confessions were made to a police officer, such confessional
statements were made by the appellants after their arrest while
they were in police custody. In Bullu Das v. State of Bihar1,
while dealing with the confessional statements made by G
accused before a police officer, this Court held as under:

       "7. The confessional statement, Ex.5, stated to have been
1
    (1998) s sec 130                                               H
1096       SUPREME COURT REPORTS                    (2015] 7 S.C.R.


 A       made by the appellant was before the pollice officer in
         charge of the Godda Town Police Station where the
         offence was registered in respect of the murder of Kusum
         Devi. The FIR was registered at the police station on 8-8-
         1995 at about 12.30 p.m. On 9-8-1995, it was after the
 8       appellant was arrested and brought before Rakesh Kumar
         that he recorded the confessional statement of the
         appellant. Surprisingly, no objection was taken by the
         defence for admitting it in evidence. The trial court also
         did not consider whether such a confessional statement
 c       is admissible in evidence or not. The High Court has also
         not considered this aspect. The confessional statement
         was clearly inadmissible as it was made by an accused
         before a police officer after the investigation had started."
 D      19) Notwithstanding the same, the trial court as well as
   the High Court had relied upon these confessions on the basis
   of these statements, coupled with 'other connected evidence
   available on the record', particularly the recovery of the scooter
   from the old house of accused Indra Dalal and the disclosure/
 E confessional statement (Mark A) made by Jaibir in another
   case bearing FIR No. 718 dated November 30, 2001
   registered under Sections 420/407/463/471/120-B IPC and
   Sections 25/54/59 of the Arms Act, 1959 registered at Police
 F Station: Civil Lines, Hisar, which has been proved by Inspector
   RamAvatar(PW-15).

        20) What follows from the above reasoning given by the
   High Court is that the confessional statements were supported
   with other evidence. Though the High Court has mentioned
 G 'other connected evidence', what is relied upon is the recovery
   of scooter and the disclosure/confessional statement made
   by Jaibir in some other case. No other evidence is pointed
   out by the High Court. On our specific query to the learned
 H counsel for the State during the arguments, he also conceded
   that the only 'connected evidence available on record' was
           INDRA DALAL v. STATE OF HARYANA                    1097
                    [AK. SIKRI, J.]

the recovery of scooter and the confessional statement (Mark A
A) made by Jaibir in FIR No. 718 dated November 30, 2001.
This approach of the High Court relying upon the confessional
statements, otherwise inadmissible, with the aid of 'other
connected evidence' is contrary to law. We harbour serious            ,
doubts about basing criminal punishment on such an B
unapproach, not permissible in law. This conclusion gets
strengthened as we proceed to discuss the nuances of legal
principles and its application to the factual canvas herein.

     21) The question is as to whether these could be taken      c
into consideration to believe the confessional statements by
the appellants, which were otherwise inadmissible in law.

    22) The only portion of the information contained in the
conf~ssional statements that may be proved is provided under D
Section 27 of the Evidence Act, which reads as under:

    "27. How.much of information received from accused
     may be proved. - Provided that, when any fact is deposed
    to as discovered in consequence of information received E
    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."
                                                                  F
    23) It is clear that Section 27 is in the form of proviso to
Sections 25 and 26 of the Evidence Act . It makes it clear that
so much of such information which is received from a person
accused of any offence, in the custody of a police officer, which
has led to discovery of any fact, may be used against the G
accused. Such information as given must relate distinctly to
the fact discovered. In the present case, the information
provided by all the accused/ appellants in the form of
confessional statements, has not led to any discovery. More
starkly put, the recovery of scooter is not related to the H
1098            SUPREME COURT REPORTS                   [20'15] 7 S.C.R.


 A confessional statements allegedly made by the appellants. This
   recovery was pursuant to the statement made by Harish
   Chander Godara. It was not on the basis of any disclosure
   statements made by these appellants. Likewise, insofar as
   confessional statement (Mark A) allegedly given by Jaibir is
 B concerned, that is again in another FIR. We shall come to its
   admissibility separately. Therefore, the situation contemplated
   under Section 27 of the Evidence Act also does not get
   attracted. Even if the scooter was recovered pursuant to the
   disclosure statement, it would have made the fact of recovery
 C of scooter only, as admissible under Section 27 of the
   Evidence Act, and it would not make the so-called confessional
   statements of the appellants admissible which cannot be held
   as proved against them.

 D      24) At this juncture, let us discuss as to whether the
   disclosure/ confessional statement (Mark A) made by appellant
   Jaibir in another case would be relevant to prove the charge
   of conspiracy. It would be pertinent to point out that this
   statement is made by Jaibir much after the incident, when,
 E naturally, the common intention had ceased to exist. On this
   ground alone it would not be admissible. We would like to
   refer to the judgment of this Court in Mohd. Khalidv. State of
   West Sengaflwherein this Court held:

 F            "33. In view of what we have said about the confessional
              statement it is not necessary to go into the question as to
              whether the statement recorded under Section 164 of the
              Code has to be given credence even if the c:onfessional
              statement has not been recorded under Section 15 of the
 G            TADA Act. However, we find substance in the stand of
              learned counsel for the accused- appellants that Section
              10 of the Evidence Act which is an exception to the general
              rule while permitting the statement made by one
 H     2
           (2002) 1 sec 334
            INDRA DALAL v. STATE OF HARYANA                   1099
                     [AK. SIKRI, J.]

     conspirator to be admissible as against other conspirator A
     restricts it to the statements made during the period when
     the agency subsisted. In State of Gujarat v. Mohd. Atik
     [(198) 4 sec 351] it was held thatthe principle is no longer
     res integra that any statement made by an accused after
     his arrest, whether as a confession or otherwise, cannot B
     fall within the ambit of Section 10 of the Evidence Act.
     Once the common intention ceased to exist, any statement
     made by a former conspirator thereafter cannot be
     regarded as one made in reference to their common
     intention. In other words, the post-arrest statement made C
     to a police officer, whether it is a confession or otherwise
     touching his involvement in the conspiracy, would not fall
     within the ambit of Section 10 of the Evidence Act."

     25) Likewise, in Firozuddin Basl1eeruddin & Ors. v. D
State ofKera/a3·this Court discussed the law of conspiracy
exhaustively and following passages therefrom would be
sufficient to elucidate the legal position enshrined in Sections
120-A and 120-B of the IPC:
                                                                  E
     "25. Conspiracy is not only a substantive crime, it also
     serves as a basis for holding one person liable for the
     crimes of others in cases where application of the usual
     doctrines of complicity would not render that person liable.
     Thus, one who enters into a conspiratorial relationship is F
     liable for every reasonably foreseeable crime committed
     by every other member of the conspiracy in furtherance of
     its objectives, whether or not he knew of the crimes or
     aided in their commission. The rationale is that criminal
     acts done in furtherance of a conspiracy may be G
     sufficiently dependent upon the encouragement and
     support of the group as a whole to warrant treating each
     member as a casual agent to each act. Under this view,
' (2001 > 1 sec 596                                              H
1100       SUPREME COURT REPORTS                    [2015] 7 S.C.R.


 A       which of the conspirators committed the substantive
         offence would be less significant in determining the
         defendant's liability than the fact that th1~ crime was
         performed as a part of a larger division of labour to which
         the accused had also contributed his efforts.
 B
         26. Regarding admissibility of evidence, loosened
        ,standards prevail in a conspiracy trial. Contrary to the
         usual rule; in conspiracy prosecutions, any declaration by
         one conspirator, made in furtherance of a conspiracy and
 C       during its pendency, is admissible against each co-
         conspirator. Despite the unreliability of hearsay evidence,
         it is admissible in conspiracy prosecutions. Explaining
         this rule, Judge Hand said:

 o       "Such declarations are admitted upon no doctrine of the
         law of evidence, but of the substantive law of crime. When
         men enter into an agreement for an unlawful end, they
         become ad hoc agents for one another, and have made
         'a partnership in crime'. What one does pursuant to their
 E       common purpose, all do, and as declarations may be such
         acts, they are competent against all. (Van Riperv. United
         States, 13 F 2d 961, 967 (2d Cir 1926))."

         27. Thus conspirators are liable on an agemcy theory for
 F       statements of co-conspirators, just as they are for the overt
         acts and crimes committed by their confreres."

        26) The Court also noted the earlier judgment in the case.
   of State v. Na/inf' wherein the principles governing the law of
 G conspiracy had been summarized. Those principles are
   reproduced in para 32 of the judgment. For our purposes,
   principle No.2 is reproduced as under:

         "2. Acts subsequent to the achieving of the object of
 H • (1999) s sec 253
          INDRA DALAL v. STATE OF HARYANA                    1101
                   [A.K. SIKRI, J.]

    conspiracy may tend to prove that a particular accused A
    was party to the conspiracy. Once the object of conspiracy
    has been achieved, any subsequent act, which may be
    unlawful, would not make the aecused a part of the
    conspiracy like giving shelter to an absconder."
                                                               B
    Thus, the alleged disclosure/confessional statement (Mark
    A) made by Jaibir in another case would be of no
    consequence.

    27) With this, we now discuss the evidentiary value of the   c
recovery of scooter.

     28) Sub-Inspector Ram Chander, who was the
Investigating Officer and who appeared as PW-17, deposed
in his statement that on July 13, 2001, the scooterJn question, D
which was allegedly used in the offence, was recovered from .
the house of Indra Dalal. It was parked in verandah and the
same was taken into possession vide recovery memo Exhibit
PD. It is important to n6te that on July 13, 2001, appellant
Indra Dalal was in jail, as she was arrested on June 02, 2001, E
when the so-called recovery was made. Recovery was, thus,
made in her absence. Harish Chander Godara, brother of the
deceased, appeared as PW-2. According to him, he was at
the roof of the house at the time when a boy came and shot at
his brother. He rushed from upstairs to the ground floor and F
saw the boy leaving on scooter towards the town. He noted
down the number of the scooter which was HR 20G 1102 and
was of cream colour. He further stated that on July 13, 2001,
on seeing the police vehicle near bus stand, he went to the
Police to enquire about the case. During that time, one G
informant informed the police that one scooter bearing No.
HR 2-0G 1102 was standing in the store of the ol~ house of
Indra Dalal. It would be of interest to point out that the
Investigating Officer (PW-17) had earlier gone to the house of
Indra Dalal immediately after the incident, but did not find any H
1102          SUPREME COURT REPORTS                   [2015] 7 S.C.R.


 A scooter. If the registration number of the scooter was given by
   PW-2 during investigation and the Investigating Officer had
   visited the house of Indra Dalal, how he could not find the
   scooter parked there with the same number on that date. All
   these facts cast a shadow of doubt on the alleged recovery of
 B scooter from the house of appellant Indra Dalal.

            29) Appellant Jaibir has denied that the scooter in question
        belonged to him. In order to prove his ownership, the
       prosecution had produced Guiab Singh (PW-18), Registration
 C     Clerk with Regional Transport Office. He produced on record
       application (Exhibit PZ) moved by the police officer and report
       (Exhibit PZ/1) made by Pavan Kumar, Clerk working in the
        Regional Transport Office. No documents have been produced
       to show the ownership of Jaibir. Only the report prepared by
 D     Pavan Kumar, Clerk, allegedly on the basis of the record, is
       produced. That cannot partake the character of primary
       evidence. Moreover, in the cross- examination of PW-18, he
       has accepted that there is cutting in the relevant entry of
       ownership. He also admitted that he had not brought the forms/
 E     applications for change of ownership of the scooter in question.
       He further mentioned that as per the record, the original
       registration of the scooter was in the name of one Vipul
       Kaushal, s/o. Prithi Singh, resident of Hisar. In such a
 F     circumstance, necessary evidence was required to prove how
       the ownership changed hands and came to be recorded in
       the name of Jaibir. No such evidence has been produced.
       We are, therefore, of the opinion that there is no sufficient
       evidence to prove the ownership of the scooter in the name of
 G     Jaibir.
        30) Aforesaid discussion leads us to conclude that the
   entire bucket of evidence is either inadmissible putting the
   roadblock creating by the Evidence Act or unbelievable/
 H untrustworthy. For all the aforesaid reasons, we are of the view
            INDRA DALAL v. STATE OF HARYANA                1103
                     [A.K. SIKRI, J.]

that the prosecution has miserably failed to prove, beyond A
reasonable doubt, the charge of conspiracy against these
appellants with the aid of Section 120-B of IPC. As a result,
the appeals are allowed and the impugned judgment and
sentence are, accordingly, set aside. During the pendency of
these appeals, sentence of the appellant Indra Dalal had been B
suspended. Her bail bonds shall, accordingly, stand
discharged. The other two appellants, namely, Bijender@
Vijay and Jaibir, shall be released from jail forthwith, unless
t~ey are required in any other case.
                                                               c
Devika Gujral                               Appeals allowed.