Supreme Court of India
LAL MOHAMMAD MANJUR ANSARIversusTHE STATE OF GUJRAT
- Citation
- 2024 INSC 475
- Decided
- 8 July 2024
- Disposal
- Appeal(s) allowed
- Bench
- ABHAY S OKA
Holding
The conviction under Section 302 IPC cannot be sustained as the alleged extra‑judicial confession and dying declaration were not proved reliable and the prosecution evidence was insufficient.
Summary
The appellant was convicted of murder under Section 302 IPC based on eyewitness testimony, an alleged extra‑judicial confession to his employer (PW‑19), and a dying declaration by the victim (PW‑24). The Supreme Court examined the credibility of the extra‑judicial confession, noting that the appellant had worked for the employer only five months, that the employer failed to disclose the phone number of the alleged call, and that the police officer (PSI Mishra) who supposedly heard the second confession was not examined as a witness. The Court also found the dying declaration unreliable because the victim was unconscious when taken to the police and the alleged statement was not recorded. Hostile eyewitnesses' testimonies were deemed insufficient to link the appellant to the murder. Consequently, the prosecution failed to prove the charge beyond reasonable doubt, leading the Court to set aside the conviction and sentence.
Issues considered
- Whether the extra‑judicial confession alleged to have been made by the appellant is admissible and reliable under the Evidence Act.
- Whether the dying declaration of the deceased is admissible and trustworthy.
- Whether the testimony of hostile eyewitnesses can sustain a conviction for murder.
- Whether the failure to examine a crucial police witness (PSI Mishra) defeats the prosecution's case.
Legislation cited
Subjects
Extra-judicial confessionDying declarationEyewitnesses
Judgment
[2024] 7 S.C.R. 41 : 2024 INSC 475
Lal Mohammad Manjur Ansari
v.
The State of Gujrat
(Criminal Appeal No. 3524 of 2023)
08 July 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
Conviction and sentence of the appellant for offence punishable
u/s. 302 IPC, if justified.
Headnotes†
Evidence – Extra-judicial confession – Dying declaration –
Reliance upon, when – Murder case wherein prosecution
case based on the evidence of eyewitnesses, extra-judicial
confession made by the appellant-accused to his employer,
and the dying declaration made by the victim to one of the
prosecution witness – Though few prosecution witnesses who
were eyewitnesses turned hostile, courts below relied upon
certain parts of their testimony – High Court disbelieved the
testimony of the appellant’s employer and the prosecution
witness to whom dying declaration was made – Conviction
and sentence of the appellant for offence punishable u/s. 302
IPC – Correctness:
Held: Normal rule of human conduct is that a person would
confess the commission of a serious crime to a person in whom
he has implicit faith – It is unnatural that the appellant-accused
would call his employer-prosecution witness with whom he
worked barely for five months on the phone and confess, and
further call him to the Bus Station – Furthermore, the employer
admittedly did not disclose to the police the telephone number
from which he allegedly received a call from the appellant – No
investigation was made to ascertain the said phone number as
also the phone number from which the employer called PSI – It
was necessary for the prosecution to collect evidence on these
aspects and place it before the Court – Though the employer
* Author
42 [2024] 7 S.C.R.
Digital Supreme Court Reports
stated that the appellant again made extra-judicial confession
at the Bus Station in the presence of PSI, the prosecution did
not examined PSI as a witness – Statement of PSI not recorded
during the investigation – Alleged confession made by the appellant
before PSI could not be proved against the appellant – Hence,
the prosecution’s evidence regarding extra-judicial confession
cannot be believed – It was PSI who took the appellant into
custody – Hence, PSI was a crucial witness – Vital prosecution
witness was withheld from the Court – Moreover, the manner
in which the appellant was taken into custody becomes highly
suspicious as it was not even recorded in the arrest panchnama
that PSI arrested the appellant – Thus, not possible to rely upon
the evidence of the employer – Prosecution case regarding the
dying declaration made to one of the prosecution witness does
not inspire confidence at all – Also, on perusal of the evidence
of the hostile prosecution witnesses, nothing in the evidence to
be relied upon by the prosecution for connecting the appellant
with the murder of the deceased – Appellant’s conviction cannot
be sustained – Conviction and sentence of the appellant set
aside – Penal Code, 1860 – s. 302 – Evidence Act, 1872. [Paras
7, 8, 10, 14, 15]
List of Acts
Penal Code, 1860; Evidence Act, 1872.
List of Keywords
Extra-judicial confession; Dying declaration; Eyewitnesses.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3524
of 2023
From the Judgment and Order dated 05.03.2013 of the High Court
of Gujarat at Ahmedabad in CRLA No. 2436 of 2005
Appearances for Parties
Rajat Bhardwaj, Mohd.Ainul Ansari, Manoj Kumar Goyal, Ms.
Ankita M.Bhardwaj, Rishabh Goyal, Kaustubh Khanna, Advs. for
the Appellant.
Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the Respondent.
[2024] 7 S.C.R. 43
Lal Mohammad Manjur Ansari v. The State of Gujrat
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
1. The appellant-accused has been convicted for the offence punishable
under Section 302 of the Indian Penal Code (for short, ‘IPC’) by
the Sessions Court. By the impugned judgment, the High Court
has confirmed the appellant’s conviction. The appellant has been
sentenced to undergo life imprisonment.
FACTUAL ASPECT
2. The appellant raised a plea of juvenility. By the order dated 10th April
2023, this Court directed the Trial Court to hold an inquiry into the
plea of juvenility. Accordingly, an order was made by the learned
Trial Judge on 8th April 2023. The learned Trial Judge held that the
appellant was not a juvenile in conflict with the law on the date of
the commission of the offence. After that, leave was granted, and
the appeal was heard on merits.
3. The incident occurred on 6th September 2004. The accused was staying
in room no. 3 rented to him by PW-3 - Alimuddin Amiruddin Shaikh.
According to the prosecution, the deceased – Mohmed Akhtar Gafur
Ansari, was also staying in the room no. 3, along with the appellant.
There was a dispute between them about playing music. The dispute
led to an altercation in which the appellant attacked the deceased. The
injuries sustained by the deceased caused his death. The prosecution
case is based on the evidence of eyewitnesses PW-3 to PW-9, extra-
judicial confession by the appellant made to PW-19 - Mohammad
Afroz and dying declaration made by the deceased to PW-24 - Mohd.
Rafiq. Though PW-3 to PW-9 were declared hostile, the Trial Court
and High Court have relied on certain parts of their testimony. The
High Court has believed the testimony of PW-19 and PW-24.
SUBMISSIONS
4. The learned counsel appearing for the appellant has taken us through
the testimony of hostile eyewitnesses. By pointing out the findings
of the High Court, he submitted that, firstly, certain statements made
by the eyewitnesses out of context could not be relied upon by the
prosecution. Secondly, the testimony of the said witnesses does
not support the prosecution. Pointing out the evidence of PW-19,
44 [2024] 7 S.C.R.
Digital Supreme Court Reports
he submitted that according to the witness, he was the appellant’s
employer. According to him, the appellant made a phone call to him
at 3.30 p.m. on the date of the incident and informed him that he had
murdered his roommate. He pointed out that no investigation has been
made about the phone from which this call was made. Moreover, he
pointed out that though PW-19 claims that he informed PSI Mishra of
Limbayat Police Station about the confession and called him to Central
Bus Station, PSI Mishra has not been examined as a witness. He
pointed out that according to the prosecution’s case, even at Central
Bus Sation, the appellant allegedly made the second extra-judicial
confession in the presence of PSI Mishra. Therefore, the omission
to examine PSI Mishra becomes fatal to the prosecution case. He
pointed out that the prosecution case was that it was PSI Mishra who
took the appellant into custody and produced before PW-25. The
version of PW-25, the Investigating Officer, appears to be doubtful.
He submitted that the entire prosecution case cannot be believed.
5. The learned counsel appearing for the State submitted that though
the eyewitnesses were declared hostile, their testimony cannot be
entirely discarded. She submitted that the evidence of the said
witnesses brings on record the fact that at the time of the murder of
the deceased, he, along with the appellant, were staying together in
room no. 3 of the building owned by PW-3. Learned counsel pointed
out the evidence of PW-4 (Salehabanu). In the cross-examination
made by the learned public prosecutor, the witness stated that she
first saw the appellant running towards the stairs from the lobby, and
immediately after that, the deceased was found in a heavily bleeding
condition. She pointed out that the witness’s evidence proved that
the appellant and the deceased were quarrelling. The witness heard
shouts of “save, save” from the appellant’s room. She also pointed
out that even the evidence of PW-7 - Najma brings on record that
she had seen the deceased bleeding in the gallery of the building
and was shouting “save, save” at that time. The witness saw the
appellant coming down from the building and was seen cleaning
blood stains from his shirt. She pointed out that even the evidence
of PW-14 – Sagufta Parvin shows that the deceased was murdered
in room no. 3 where the deceased, along with the appellant, were
staying together. She further submitted that PW-19 was the appellant’s
employer; therefore, it was natural that the appellant would confide
with his employer about his guilt. She submitted that there is no
[2024] 7 S.C.R. 45
Lal Mohammad Manjur Ansari v. The State of Gujrat
reason to discard the testimony of PW-19, which proves extra-judicial
confession. Similarly, there is no reason to discard the testimony of
PW-24 before whom a dying declaration was made by the deceased
that the appellant murdered him. The learned counsel submitted that
there is no reason to interfere with the impugned judgments, which
contain elaborate findings recorded after making a detailed analysis
of the evidence of the prosecution witnesses.
CONSIDERATION OF SUBMISSIONS
6. We have minutely scanned the testimony of the prosecution witnesses.
Firstly, we will deal with evidence of PW-19, who claims that the
deceased made an extra-judicial confession before him. Even though
this witness was declared hostile, the prosecution relied upon a part
of his testimony. We are summarising the statements made by PW-
19 in his examination-in-chief, in his cross-examination made by the
learned public prosecutor after he was declared hostile and in the
cross-examination made by the learned counsel appearing for the
appellant. The summary of his version is as follows:
a) The appellant worked in his textile store for five months in 2004
till the first week of September 2004;
b) In September 2004, he received a call from the appellant around
3.30 p.m. and on the phone, the appellant informed him that
he had killed his room partner;
c) The appellant called PW-19 to the Central Bus Station near
Surat Railway Station;
d) Thereafter, PW-19 made a phone call to PSI Mishra of Limbayat
Police Station and called him to the Central Bus Station;
e) PSI Mishra came to the Central Bus Station, where they met
the appellant. The appellant again reiterated that there was a
quarrel between him and his room partner over playing a tape
recorder, and that he had murdered his room partner;
f) PW-19 stated that though the appellant had told him the name
of the person who was murdered, he was unable to recollect
the name;
g) In the cross-examination by the learned public prosecutor, he
was confronted with the relevant part of his statement recorded
under Section 161 of the Code of Criminal Procedure, 1973
46 [2024] 7 S.C.R.
Digital Supreme Court Reports
(for short, ‘CrPC’). He accepted of having made the statement.
He stated that the appellant had told him that he had murdered
Mohmed Akhtar Gafur Ansari;
h) In the cross-examination made by learned counsel appearing
for the appellant, he stated that PSI Mishra took the appellant
with him, and there were two or three policemen with him;
i) He did not remember whether he stated to the police the phone
number from which he made a phone call to PSI Mishra; and
j) He admitted that he did not disclose the phone number from
which the appellant called him.
7. The normal rule of human conduct is that a person would confess
the commission of a serious crime to a person in whom he has
implicit faith. The appellant had worked in PW-19’s shop only for five
months in 2004. The appellant was otherwise not known to PW-19.
Therefore, it is unnatural that the appellant would call the deceased
on the phone and confess. Moreover, PW-19 stated that the appellant
called him to the Central Bus Station after confessing on the phone.
Even this conduct is very unnatural. Furthermore, PW-19 admittedly
did not disclose to the police the telephone number from which he
allegedly received a call from the appellant. As can be seen from the
testimony of PW-25, Investigating Officer, no investigation was made
to ascertain the phone number on which PW-19 received a call from
the appellant and the phone number from which PW-19 called PSI
Mishra. It was necessary for the prosecution to collect evidence on
these aspects and place it before the Court. Though PW-19 stated
that the appellant again made extra-judicial confession at the Central
Bus Station in the presence of PSI Mishra, the prosecution has not
examined PSI Mishra as a witness. According to the testimony of PW-
25, statement of PSI Mishra was not recorded during the investigation.
In any event, the alleged confession made by the appellant before PSI
Mishra cannot be proved against the appellant in view of Section 25
of the Indian Evidence Act, 1872. Hence, the prosecution’s evidence
regarding extra-judicial confession cannot be believed.
8. PW-19 stated that PSI Mishra and two to three other constables took
the appellant away. Thus, it was PSI Mishra who took the appellant into
custody. Hence, PSI Mishra was a crucial witness. A vital prosecution
witness has been withheld from the Court. Nothing is placed on record
[2024] 7 S.C.R. 47
Lal Mohammad Manjur Ansari v. The State of Gujrat
to show that PSI Mishra made any official record to show that he had
taken the appellant into custody. PW-25, the Investigating Officer,
stated that PSI Mishra and other police personnel were tracing the
appellant in the market as he was working there. He further noted
that PSI Mishra produced the appellant at the police station and was
shown as arrested at 9.30 p.m. on that day. Thus, PW-25 did not
state that PSI Mishra went to the Central Bus Station upon receiving
a phone call from PW-19, and that he nabbed the appellant at the
Bus Station. The version of PW-25 is entirely different. In the cross-
examination, PW-25 specifically admitted that he did not record the
statement of PSI Mishra. He stated that he arrested the appellant when
PSI Mishra produced him. Further, in the cross-examination, PW-25
stated that in the panchnama of arrest, it is not mentioned that PSI
Mishra produced the appellant before him. He stated that he had no
information about the time, in whose presence and from which place
PSI Mishra arrested the appellant. In further cross-examination, he
stated that he was not aware that PSI Mishra met the appellant at
Central Bus Station in the presence of the appellant’s employer. He
denied that PSI Mishra kept the appellant in custody and produced the
appellant before him. Thus, it is impossible to believe the testimony of
PW-19 that he conveyed the appellant’s extra-judicial confession to
PSI Mishra. Moreover, the manner in which the appellant was taken
into custody becomes highly suspicious as it is not even recorded
in the arrest panchnama that PSI Mishra arrested the appellant.
Apart from the fact that it is very difficult to believe that the appellant
confessed before PW-19, the further part of the testimony of PW-
19 makes his testimony extremely doubtful as the prosecution has
withheld PSI Mishra from the Court. Therefore, it is not possible to
rely upon the evidence of PW-19.
9. Now, we come to the theory of dying declaration made by the
deceased before PW-24. In the examination-in-chief, PW-24 stated
that after he heard that his friend (deceased) was injured, he rushed to
the site and found that the deceased was fully covered in blood, and
he disclosed that the appellant was the author of the injuries. In the
cross-examination by the learned public prosecutor, he denied having
made such a statement before the police. In the cross-examination
by the learned public prosecutor, the witness was confronted with
his prior statement recorded by the police. The relevant part of the
cross-examination reads thus:
48 [2024] 7 S.C.R.
Digital Supreme Court Reports
“Such has not happened and been dictated by me in
my statement before police that, ‘Therefore, when I was
coming downstairs, I saw Lal Mohammad, staying with
Mohammad Akhtar, running on the road towards Limbayat
Police Station.
…Therefore, I called rickshaw and landlord Alimuddin
Shaikh and I took Mohammad Akhtar for treatment in the
rickshaw and at that time, I saw Mohammad Akhtar had
sustained injuries on throat and head and it was bleeding
continuously. At that time, I asked Mohammad Akhtar
and he told me, I had an altercation and quarrel with Lal
Mohammad, staying with me, regarding playing a tape
recorder and therefore, Lal Mohammad caused injuries
to me using a knife and ran away.”
…………………………………………………………..”
Thus, the witness stated that he did not dictate to the police the
statement with which he was confronted. In the cross-examination
by the advocate for the appellant, he admitted that when he informed
Limbayat Police Station, a policeman came in an auto-rickshaw.
The policeman, along with two or three other persons, brought
the deceased down and put him in the auto-rickshaw. The police
personnel and the other two to three persons were not examined
as witnesses. He stated that the deceased was unconscious at that
time. So, when the deceased was put in the auto-rickshaw, he was
not in a position to speak.
10. At this stage, we may also refer to the testimony of PW-3, who was
the complainant and landlord of the appellant. He stated that when he
went to the place where the deceased was lying in a heavily bleeding
condition, the deceased did not disclose anything to him, and there
was no conversation when the deceased was taken by him by an auto-
rickshaw to the hospital. Therefore, the prosecution story regarding the
dying declaration made to PW-24 does not inspire confidence at all.
11. Now, we turn to the evidence of the eyewitnesses who were declared
hostile. PW-3, according to the prosecution, was the witness before
whom the deceased made a dying declaration while he was being
carried in an auto-rickshaw. PW-3 did not support the prosecution
on this aspect, and PW-24 claimed that when the deceased was
[2024] 7 S.C.R. 49
Lal Mohammad Manjur Ansari v. The State of Gujrat
put in an auto-rickshaw, he was not conscious. PW-3 stated that
he heard a quarrel between the appellant and the deceased. When
the witness was confronted with his police statement in the cross-
examination, he denied having made such a statement. PW-4 was
declared as hostile. When he was confronted with relevant part of
his police statement, he denied to have made the statement.
12. The High Court has relied upon the testimony of PW-7, who was
again declared hostile. In the cross-examination made by the public
prosecutor, PW-7 accepted that she informed the police that she saw
the appellant going down, and while going down, he was cleaning
the blood off his clothes. However, in the cross-examination made by
the advocate for the accused, she stated that except for seeing the
deceased in injured condition, she had not seen anything else and that
she was not aware of the persons who were involved in the incident.
13. The High Court held that the evidence of PW-9 Kalu Shaikh, another
hostile witness, proves the appellant’s presence at the time of the
incident. In cross-examination by the advocate for the accused, PW-9
stated that he did not know the appellant and the deceased before the
incident. He stated that he was unable to identify the appellant. He
stated that except for hearing the shouts “save, save,” he knew nothing.
14. Therefore, after having carefully perused the evidence of the hostile
prosecution witnesses (PW-3 to PW-9), we find that there is nothing
in the evidence which could be relied upon by the prosecution for
connecting the appellant with the murder of the deceased.
15. Thus, the appellant’s conviction cannot be sustained for the above
reasons. Accordingly, the appeal is allowed. The conviction and sentence
of the appellant are set aside, and the appellant is acquitted of the
offence alleged against him in Sessions Case No. 80 of 2005, decided
by the 3rd Fast Track Court, Surat arising out of CR No. I/142/2004 of
Limbayat Police Station. The appellant shall be set at liberty unless he
is required to be detained in connection with any other case.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
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