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CASE NO.: Special Leave Petition (crl.)  4772 of 2003

PETITIONER: Akhlaq

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 19/03/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO.         OF 2007 (Arising out of S.L.P.(Crl.) No.4772 of 2003)

KAPADIA, J.

               Leave granted.         This criminal appeal is directed against the  impugned judgment and order dated 14.7.06 passed by  the High Court of Judicature at Allahabad in Criminal  Appeal No.1783 of 1981 against the judgment and order  dated 10.8.81 passed by the Additional Sessions Judge,  Bulandshahr in Sessions Trial No.143 of 1980 convicting  Akhlaq (accused no.1 - appellant herein) under Section  302 read with Section 34 Indian Penal Code (’IPC’ for  short).  Appellant has been sentenced to undergo  rigorous imprisonment for life.

       In short, the prosecution case was as under.  A  written report (Exhibit Ka.1) was submitted at the Polic  Station Kotwali.  This was on 31.7.79 at 6.10 pm.  The  written report was submitted by the complainant, Samay  Singh (PW.1).  In the report it was stated that when the  complainant returned home in village Tatarpur from his  duty, he enquired from his younger daughter about the  whereabouts of his elder daughter Asha (since deceased).   The complainant was informed that Asha had gone to  answer nature’s call.  The complainant also enquired  from his wife, Brahma Devi (PW.2), about Asha.  He was  told by his wife that Asha had gone to answer nature’s  call.  However, Asha did not return for considerable time.   The complainant became suspicious.  He proceeded to  search out his daughter Asha at 5 pm.  When the  complainant reached the maize field of Kanchi he saw a  chappal belonging to Asha lying near the boundary of the  field.  The complainant entered into the field.  He found  the dead body of his daughter Asha inside the field.  A  Dhoti was tied around her neck and another chappal   was found lying near the dead body of Asha.  Her clothes  were blood stained.  The complainant further found that  the golden ear-rings of Asha were missing from her body.   Asha was around 20 years old.  On the basis of Ex. Ka.1  the Head Constable prepared the F.I.R. The case was  registered.  The entry was made in G.D. report.  The I.O.  recorded the statement of the complainant at the police  station.  He then proceeded to the site of occurrence.  On  reaching the field of Kanchi the I.O. found the dead body  of Asha lying in the field with a Dhoti tied around her

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neck.  The I.O. prepared the inquest report (Ex. Ka.5).   He prepared the naqsha (Ex.Ka.7).  The I.O., after  completing the formalities, handed over the dead body of  Asha to constables Bhojvir Singh and Rajvir Singh for  post mortem at the district hospital, Bulandshahr.  The  possession of the chappal  was also taken vide Ex.Ka.9.   The I.O. inspected the spot on 1.8.79.  He prepared the  site plan.  On 21.8.79 on interrogation Jamil (accused  no.2) confessed his guilt.  He also promised to get the  golden ear-rings recovered from the shop of sarraf.  He  took the I.O. to the shop of the sarraf.  The ear-rings were  mortgaged with the sarraf.  The name of sarraf was Ram  Kishan (PW. 9).  After going through the register Ram  Kishan took the ear-rings.  The ear-rings were taken into  custody vide Ex.Ka.4.  They were sealed in the presence  of Jai Prakash Sharma (PW.10).  The necessary  formalities were thereafter completed.  The ear-rings  recovered from the shop were identified on 28.9.79.  On  1.8.79 the post mortem was conducted.  According to Dr.  Surendra Pal Singh, Medical Superintendent (PW.14), the  death was caused by strangulation.  The doctor found  whitish substance near vulva of the deceased.  He  prepared a slide and forwarded it to the pathologist.  The  doctor opined that Asha was possibly raped.  After  completing due investigation, the I.O. submitted the  charge-sheet.  The three accused \026 Akhlaq (Accused-1),  Jamil (Accused-2) and Imtiyaz (Accused-3) denied the  charges.  They pleaded non-guilty.  The prosecution  examined 19 witnesses.

       In the present case the complainant (PW.1) has  proved that he was the father of Asha.  He was an  employee in the Civil Hospital Bulandhshahr.  His duty  hours were between 8 a.m. and 3 pm.  This witness has  established that on the fateful day he returned from the  Civil Hospital at 3.30 pm; he enquired about Asha when  he was told that Asha had gone to answer nature’s call  around 1.30 pm.  This led PW.1 to search out the  deceased.  The evidence of PW.1 has established that  around 5 pm he reached the field of Kanchi, he entered  the field and found the dead body of Asha with the golden  ear-rings missing and her chappal lying near her body.   He also identified the ear-rings later on.  The evidence of  PW.1 is corroborated by his wife Brahma Devi (PW.2).   Bal Kishan (PW.4) stated that he was from the same  village that he was in his field on the fateful day.  At 1.30  pm he was returning from his field when he saw Asha  going towards a pond (pokhar).  He saw Asha being  followed by Akhlaq (appellant herein).  PW.4 further  deposed that in fact Akhlaq (A-1) greeted PW.4.   According to PW.4, Asha was followed by Akhlaq (A-1)  and Akhlaq was in turn followed by Babu (Accused-4),  Jamil (A-2) and Imtiyaz (A-3).  At 5.30 pm, Bal Kishan  (PW.4) was told about the demise of Asha.  Mahesh  Chandra (PW.6) deposed that on the fateful day at 8.30  pm when he was near a chabutra he saw Babu and  Akhlaq.  Babu was also an accused (since deceased).   Mahesh Chandra was a friend of Babu.  By 8.30 pm the  entire village had known that the body of Asha was found  in the field of Kanchi.  PW.6 was told by Babu in  presence of Akhlaq (appellant herein) that about three  months prior to the incident Asha had abused him.   Babu stated that Asha and Akhlaq had illicit  relationship.  Babu told PW.6, in presence of Akhlaq, that  on the date when Asha was murdered Jamil (A-2) had

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gone to borrow some money from Babu (A-4).  Imtiyaz (A- 3) was present at the house of Babu at that time.  Babu,  Imtiyaz and Jamil saw Asha going towards the field of  Kanchi followed by Akhlaq.  They followed Akhlaq.   Akhlaq and Asha entered into the maize field.  Babu,  Imtiyaz and Jamil followed Akhlaq.  They saw Akhlaq  having sexual intercourse with Asha.  Babu, Jamil and  Imtiayaz demanded sexual intercourse which Asha  refused.  Thereafter, Babu and Jamil forcibly had sexual  intercourse with Asha.  Asha threatened to expose the  misdeeds of Babu and Jamil.  Babu, therefore, took the  Dhoti of Asha tied it around her neck.  The three accused  - Jamil, Imtiyaz and Akhlaq caught hold of Asha.  She  was strangulated.  She died.  Jamil removed the ear- rings.  Akhlaq was present.  This was the extra judicial  confession made by Babu (A-4), one of the accused, to  Mahesh Chandra (PW.6) in the presence of Akhlaq  (appellant herein).  This extra judicial confession is the  subject-matter of controversy.   

       Jairam Singh (PW.11) deposed that on the fateful  day he saw Asha going towards the field of Kanchi.  She  was followed by Akhlaq (appellant herein).  The distance  between the two was about 25 steps.  He further deposed  that Akhlaq was in turn followed by Imtiyaz (A-3), Jamil  (A-2) and Babu (A-4).  Dr. Surendra Pal Singh (PW.14),  Medical Superintendent at the Civil Hospital  Bulandshahr has deposed that he did a post mortem on  1.8.79.  There were 18 injuries on the body of Asha.   These injuries consisted of abrasions and contusions on  the chin, lips, cheek, nose, forehead, elbows, chest and  neck.  He also found a whitish substance in the form of  discharge on the vagina.  He also found blood on the  thighs.  He prepared a slide and forwarded it to Dr. P.C.  Agarwal, Pathologist.  According to PW.14 the cause of  death of Asha was asphyxia owing to strangulation.   Injury nos.12 and 13 on the body of Asha was on  account of strangulation by Dhoti.

       On the above evidence, the trial court observed that  the present case was based on circumstantial evidence.   It was also based on extra judicial confession made by  Babu (A-4), one of the accused, in presence of Akhlaq  (appellant herein).  The trial court observed that in the  present case the recovery of the ear-rings at the instance  of Jamil (A-2) from the shop of Ram Kishan (PW.9) were  put for test identification parade when they were  correctly identified by the witnesses.  On the evidence of  doctor (PW.14), the trial court held that Asha was raped  and strangulated.  On the basis of the following  circumstances which was duly proved, the trial court  found Akhlaq (appellant herein) guilty of offence  punishable under Section 302 read with Section 34 IPC.   In this connection, trial court relied upon the statement  of PW.1 and PW.2 that Asha had gone to answer nature’s  call at 1.30 pm.  In this connection, the trial court also  relied upon the evidence of PW.4, Bal Kishan who, as  stated above, deposed that he had seen Asha going  towards pokhar (pond).  Therefore, the trial court came to  the conclusion that Asha was last seen at 1.30 pm when  she had gone to answer nature’s call in the field of  Kanchi.  This was the first circumstance which took  proved before the trial court.  The second circumstance  proved before the trial court was that Asha was followed  by Akhlaq (appellant herein) who in turn was followed by

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Babu (A-4), Jamil (A-2) and Imtiyaz (A-3).  The trial court  relied upon the evidence of PW.11 in this connection.   Both PW.11 and PW.4 had deposed that they had seen  the accused going towards the field of Kanchi.  It was  contended before the trial court that the evidence of  PW.11 was not reliable since he had denied of having  gone to the police station.  In this connection, the trial  court observed that PW.13 had proved the G.D. entry  about the registration of the case in which it is  mentioned that PW.11 had come to the police station  and, therefore, the trial court saw no reason to discard  the evidence of PW.11.  The next circumstance on which  the trial court placed reliance was the finding of the dead  body of Asha in the field of Kanchi.  Moreover, the trial  court also relied on the recovery of the golden ear-rings at  the instance of Jamil (A-2).  On the evidence of extra  judicial confession, the trial court held the evidence of  Mahesh Chandra (PW.6) was fully reliable as far as  Akhlaq (appellant herein) is concerned.  According to the  trial court, Babu (A-4) had confessed of having  committed the offence.  He implicated Akhlaq.  According  to the trial court, the extra judicial confession was made  by Babu (A-4) in the presence of Akhlaq (A-1) and which  extra judicial confession indicated that Babu had  confessed his guilt, he had given a detailed narration of  the facts as to how he reached into the field of Kanchi, as  to how he followed Akhlaq and Asha and he also referred  to illicit relationship between Akhlaq and Asha.  In the  said confession, on which reliance has been placed by  the trial court, Babu has stated in the presence of Akhlaq  that initially Akhlaq had sexual intercourse with Asha  which was seen by Babu, Jamil and Imtiyaz who showed  their intention to have sexual intercourse with Asha  which Asha refused and then thereafter Jamil and Babu  had intercourse with Asha against her consent.  When  Asha threatened to expose them in the village, Babu tied  her Dhoti around her neck and others caught hold of her  hands and feet.  This was the confession made by Babu  (A-4) to Mahesh Chandra (PW.6) in the presence of  Akhlaq (appellant herein).  The trial court found that  PW.6, Mahesh Chandra, was a close friend of Babu.  One  of the arguments advanced before the trial court was that  the evidence of the extra judicial confession cannot be  said to be reliable; that it was highly unnatural for Babu  (A-4) to disclose the above story in confidence to Mahesh  Chandra (PW.6).  The trial court found that there was no  merit in this argument.  According to the trial court,  Babu was a good friend of Mahesh Chandra (PW.6); the  confession was made after three days.  It was  immediately recorded on the next day, that is, on 4.8.79.   The trial court observed that although PW.6 was cross- examined at length all suggestions made to PW.6 were  denied.  According to the trial court, the extra judicial  confession was made by Babu (A-4) in presence of Akhlaq  (appellant herein) and Akhlaq did not object.  The trial  court, further found that the extra judicial confession  made by accused Babu stood corroborated by the  medical report.  The injuries noted by Dr. Surendra Pal  Singh (PW.14) also corroborated the statements  contained in the extra judicial confession.  The various  injuries on the lips, nose, cheek, forehead and elbows  indicated that the sexual intercourse was without the  consent of Asha.  The contents of the extra judicial  confession, therefore, stood corroborated.  Similarly, the  physical evidence of the recovery of the dead body from

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the field of Kanchi, the recovery of chappal of Asha  (deceased) lying near her body and scattering of the  maize plants near her body \026 all corroborated the extra  judicial confession made by Babu (A-4) to Mahesh  Chandra (PW.6).  In the circumstances, the trial court  came to the conclusion that Jamil (A-2), Imtiaz (A-3) and  Babu (A-4) had seen Akhlaq (appellant herein) following  Asha into the field of Kanchi.  They followed Akhlaq.   They saw Akhlaq having sex with Asha in the field.  They  expressed their desire to have sexual intercourse.  Asha  refused.  Babu and Jamil had sexual intercourse against  her consent.  Asha threatened to expose them.  In the  circumstances, the accused committed murder of Asha,  as described above.  In the circumstances, the trial court  held that the prosecution had proved its case.  The trial  court held that the evidence of extra judicial confession  was reliable.  The evidence of Dr. Surendra Pal Singh  (PW.14) corroborated the version of the prosecution to  the effect that Asha was strangulated after sexual  intercourse.  In the circumstances, the trial court held  that Jamil (A-2) and Babu (A-4) were guilty of offence  under Section 376 IPC; that Akhlaq had illicit  relationship with Asha and he had sexual intercourse  with her by her consent hence no offence under Section  376 IPC stood made out against Akhlaq (appellant  herein).  However, the trial court held that Babu (A-4)  was guilty of offence punishable under Section 302 and  376 IPC; that Jamil (A-2) was guilty of offences under  Section 302 read with Section 34 and also under Section  376 IPC; that Akhlaq (A-1), appellant herein, and Imtiyaz  (A-3) were found guilty of offences punishable under  Section 302 read with Section 34 IPC.

       At this stage, we may point that Babu (Accused-4)  since died.  Akhlaq (Accused-1), Jamil (Accused-2) and  Imtiyaz (Accused-3) carried the matter in appeal to the  High Court.  By the impugned judgment the High Court  has confirmed the conviction, referred to above.  Hence  this criminal appeal.  However, the criminal appeal is  preferred only by Akhlaq (A-1), appellant herein, and not  by other two co-accused.   

       At this stage, we may clarify that we are concerned  in this criminal appeal only with the case of Accused no.1  (appellant).  Shri P.S. Mishra, learned senior counsel  appearing on behalf of appellant (A-1), submitted that the  judgments of the courts below were mainly based on the  extra judicial confession made by the co-accused Babu  (since deceased) to Mahesh Chandra (PW.6).  He  submitted that extra judicial confession is no evidence.   It is corroborative in nature.  It was urged that there was  no evidence except extra judicial confession to show that  Akhlaq (appellant) had followed Asha into the field of  Kanchi.  It was urged that except the extra judicial  confession there was no evidence to implicate the Akhlaq  (appellant) in the murder of Asha.  It was further  submitted that the judgment of this Court in Kashmira  Singh v. State of M.P. \026 1952 SCR 526, has no  application to the present case.  It was urged that in the  present case there was no evidence against Akhlaq  (appellant).  He urged that whatever evidence is on record  is only against Babu (A-4) and Jamil (A-2).  Learned  counsel urged that merely because Akhlaq (appellant)  followed Asha into the field of Kanchi, he cannot be  implicated for murder of Asha.  Learned counsel also

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submitted that there was no evidence of Akhlaq  (appellant) attacking Asha or causing any injury to her.   Learned counsel urged that there was no evidence of  Akhlaq (appellant) coming back from the field of Kanchi.   He submitted that the High Court has disbelieved Kallo  (PW.3) in that regard.  In the circumstances, learned  counsel submitted that the conviction of Akhlaq  (appellant) needs to be set aside.

       We do not find any merit in the above contention.   Akhlaq (appellant) stands convicted with the aid of  Section 34.  This case concerns circumstantial evidence.   PW.1 and PW.2 have proved beyond shadow of doubt  that Asha had gone to answer nature’s call on the fateful  day at 1.30 pm.  On return from duty her father went in  search of his daughter, Asha.  On the boundary of the  field of Kanchi he detected one of the chappals of Asha.   Thereupon, he entered the field of Kanchi.  Inside the  field he found the dead body of Asha.  Near the dead  body the other chappal  was recovered.  The second  circumstance which is relevant is that Akhlaq (appellant)  was seen by Jairam Singh (PW.11).  Jairam Singh  (PW.11) saw Akhlaq (appellant) following Asha.  He also  saw Babu (A-4), Jamil (A-2) and Imtiyaz (A-3) in turn  following Akhlaq (appellant).  There is no reason to  disbelieve PW.11.  Further the evidence of PW.11 is  further corroborated by PW.4.  Both these witnesses had  seen Akhlaq (appellant) following Asha into the field of  Kanchi.  The third circumstance was the recovery of the  dead body of Asha in the field of Kanchi.  The position of  the dead body indicated rape and strangulation.  The  fourth important circumstance is the injuries noted by  Dr. Surendra Pal Singh (PW.14).  The said injuries were  present on the lips, cheek, nose, forehead and elbows of  Asha.  These injuries show that Asha was assaulted and  that she was forcibly raped.  Lastly, each of the above  circumstances finds place in the contents of the extra  judicial confession made by Babu (A-4) to Mahesh  Chandra (PW.6) in the presence of Akhlaq (appellant).

       As stated above Akhlaq (appellant) has been  convicted with the aid of Section 34 IPC.  Section 34 gives  statutory recognition to the principle that if two or more  persons intentionally do a thing jointly, it is just the  same as if each of them had done it individually.  When a  criminal act is committed by several persons in  furtherance of the common intention, each of such  several persons is liable.  The crucial test as to  applicability of constructive liability is found in the  phrase "in furtherance of the common intention of all".   The criminal act for which all the conspirators are sought  to be made liable must be connected with the common  intention; that criminal act must be while executing or  carrying out the common intention.  To apply Section 34  IPC, two factors must be established \026 (i) common  intention and (ii) participation of the accused in the  commission of an offence.  If common intention is proved  but if no overt act is attributed to the individual accused,  Section 34 will be attracted as it involves vicarious  liability.  It is not possible to have direct evidence of  common intention in every matter.  It has to be inferred  in appropriate cases from the facts and circumstances of  each case [See: Jai Bhagwan and others v. State of  Haryana - AIR 1999 SC 1083].  In the present case, the  evidence of PW.11 and PW.4, apart from extra judicial

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confession, indicates presence of Akhlaq (appellant) in  the field of Kanchi.  Akhlaq (appellant) was seen following  Asha.  In turn, the other co-accused followed Akhlaq  (appellant).  The circumstance of Asha being followed by  Akhlaq (appellant) and Akhlaq (appellant) being followed  by the co-accused into the field, is corroborated by the  contents of the extra judicial confession made by the  Babu (A-4) to Mahesh Chandra (PW.6) in presence of   Akhlaq (appellant).   

       In the case of Sivarajan v. State - 1959 KLT 167,  it has been held that under Explanation 2 to Section 8 of  the Evidence Act if a man is accused of a crime and he  remains silent, his conduct is, coupled with the  statement, in the nature of an admission and, therefore,  it will constitute evidence against himself.

       In the case of Haroom Haji Abdulla v. State of  Maharashtra \026 AIR 1968 SC 832, this Court held that a  confession intended to be used against a co-accused  stands on a lower level than the evidence of accomplice  because the latter is tested by cross-examination whilst  the former is not.  The confession of a co-accused is not  an evidence but if there is other evidence on which a  conviction can be based, they can be referred to as  lending assurance to the verdict.  It was further held that  although the confession may be taken into consideration  against a co-accused by virtue of Section 30 of the  Evidence Act its value is extremely weak and there could  be no conviction without corroboration on material  particulars.  In the present case, the extra judicial  confession was made in the presence of Akhlaq  (appellant).  The conduct of Akhlaq (appellant) comes  within Explanation 2 to Section 8 of the Evidence Act.   Under that Explanation, statements made in the  presence of Akhlaq (appellant) are admissible as the  ground work of his conduct.  It is a general rule that  statements made in the presence of the accused, which  he might have contracted, if untrue, are evidence against  him.  This is illustrated by Illustration (f) and (g) to  Section 8 of the Evidence Act.  In the present case, the  extra judicial confession made by the co-accused Babu  clearly indicates that Asha was followed by Akhlaq  (appellant) who in turn was followed by the other co- accused.  The said extra judicial confession indicates the  entry of all accused including Akhlaq (appellant) into the  field of Kanchi.  They were seen by Jairam Singh (PW.11).   The evidence of PW.11 stood corroborated by the  evidence of PW.4 to that extent.  The extra judicial  confession shows that Asha was raped forcibly and then  strangulated.  The injuries on the different parts of her  body indicates that she was raped forcibly.  This is clear  from the testimony of Dr. Surendra Pal Singh (PW.14).   The location of the body in the scattered field also shows  that she was forcibly raped.  The strangulation by Dhoti  is also one more circumstance showing how she was  murdered.  Therefore, each and every statement made in  the extra judicial confession corroborates the evidence of  PW.1, PW.11, PW.4 and PW.14.  Moreover, Akhlaq  (appellant) remained silent when confession was made by  co-accused Babu to Mahesh Chandra (PW.6).  In the said  confession, Babu implicated himself.  This conduct of  Akhlaq (appellant) has been noticed by the trial court.  

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The trial court has correctly invoked Section 8 of the  Evidence Act while evaluating the extra judicial  confession.

       Before concluding we may point out that in the  present case the courts below have not relied only upon  extra judicial confession as submitted on behalf of the  appellant.  In the present case, the extra judicial  confession is made in the presence of Akhlaq (appellant).   In the present case the confession is not behind Akhlaq  (appellant).  Therefore, the judgments cited on behalf of  the appellant has no application to the facts of the  present case.   

       For the above reasons, we do not find any merit in  this criminal appeal and the same is accordingly  dismissed.