93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 007

Corroboration of Confession:

135) Further, a contention was raised by learned senior counsel for the appellant that there was no sufficient corroboration of the confessional statements made by the accused. In reply to the above, the prosecution relied upon the following decisions:-

136) In Wariyam Singh vs. State of U.P., (1995) 6 SCC 458, this Court relied upon the confession made by the accused for convicting him. The confession was alleged to have been fabricated. In para 16 of the judgment, it was held that a part of the confession stood corroborated by the testimony of a witness and, hence, there was no reason to believe that the confession was fabricated. This Court held that the allegation of the confession being fabricated was without any basis and the confession could be taken into account while recording conviction.

137) In S.N. Dube vs. N.B. Bhoir, (2000) 2 SCC 254, this Court in para 34 observed that the confessions of two accused being substantive evidence are sufficient for considering them and it also received corroboration from the confessions of other accused and also general corroboration as regards the other illegal activities committed by them from the evidence of other witnesses. On the basis of those confessional statements, this Court reversed the orders of acquittal passed by the High Court.

138) In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221, this Court upheld the conviction of the accused on the basis of the confessions. It was held that the Nation has been ‘facing great stress and strain because of misguided militants and cooperation of the militancy’ which was affecting the social security, peace and stability. Since the knowledge of the details of such conspiracies remains with the people directly involved in it and it is not easy to prove the involvement of all the conspirators, hence the confessional statements are reliable pieces of evidence. The Court in para 84 observed:

“84. ….. Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of co-conspirators in pursuance of the conspiracy is hardly available. In such cases, when there is confessional statement it is not necessary for the prosecution to establish each and every link as confessional statement gets corroboration from the link which is proved by the prosecution. In any case, the law requires establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue. For assessing evidence in such cases, this Court in Collector of Customs v. D. Bhoormall dealing with smuggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus: (SCC pp. 553-55, paras 30-32 and 37) “30. … that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and—as Prof. Brett felicitously puts it — ‘all exactness is a fake’. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a- day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man’s estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered — to use the words of Lord Mansfied in Blatch v. Archar (1774) 1 Cowp 63: 98 ER 969 (Cowp at p. 65) ‘according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted’.”

139) In State of Maharashtra vs. Bharat Chaganlal Raghani, (2001) 9 SCC 1, this Court relied mainly on the confessional statements of the accused which were also retracted. It was held that there was sufficient general corroboration of the confessional statements made by the accused. This Court found sufficient corroboration in the testimony of the witnesses and the recoveries pursuant to the statements given by the accused. It was also held that once the confessional statements were found to have been made voluntarily, the test identification parade was not significant. It was further held that corroboration is not a rule of law but a rule of prudence.

140) In Devender Pal Singh vs. State of NCT of Delhi, (2002) 5 SCC 234, this Court was considering, among other things, whether the accused making the confessional statement can be convicted on the basis of the confession alone without any corroboration. It was held that once it is found that the confessional statement is voluntary, it is not proper to hold that the police had incorporated certain aspects in the confessional statement which were gathered during the investigation conducted earlier. It was held that the so-called retraction by the appellant was made long after he was taken into judicial custody. It was also observed that:

“51. Where trustworthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration. (See Baburao Bajirao Patil v. State of Maharashtra.) It can in some cases be inferred from the acts and conduct of the parties. (See Shivnarayan Laxminarayan Joshi v. State of Maharashtra)

54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.)] Vague hunches cannot take the place of judicial evaluation.

“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….” (Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U.P. vs Anil Singh, SCC p. 692, para 17.)

55. When considered in the aforesaid background, the plea that acquittal of the co-accused has rendered the prosecution version brittle, has no substance. Acquittal of the co-accused was on the ground of non-corroboration. That principle as indicated above has no application to the accused himself.”

141) In Ravinder Singh vs. State of Maharashtra, (2002) 9 SCC 55 this Court held that a confession does not require any corroboration if it relates to the accused himself. It was further held that there was enough evidence to provide general corroboration to the confessional statement. It was further held that minor contradictions in the statements of the accused were of no consequence once the confessions were held to be reliable.

142) In Jameel Ahmed vs. State of Rajasthan, (2003) 9 SCC 673, the position of law was summed up by this Court as follows:

“35. To sum up our findings in regard to the legal arguments addressed in these appeals, we find:

(i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base a conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not, is a matter for the court considering such confession on facts of each case.

(iii) In regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement.”

143) In Nazir Khan vs. State of Delhi, (2003) 8 SCC 461, this court held that the confessional statements made by co-accused can be used to convict a person, and that it is only as a rule of prudence that the Court should look for corroboration elsewhere. It was held that:

“27. Applying the principles which can be culled out from the principles set out above to the factual scenario, the inevitable conclusion is that the trial court was justified in its conclusions by holding the accused-appellants guilty. When an accused is a participant in a big game planned, he cannot take the advantage of being ignorant about the finer details applied to give effect to the conspiracy hatched, for example, A-7 is stated to be ignorant of the conspiracy and the kidnapping. But the factual scenario described by the co-accused in the statements recorded under Section 15 of the TADA Act shows his deep involvement in the meticulous planning done by Umar Sheikh. He organized all the activities for making arrangements for the accused and other terrorists.

144) In Sukhwant Singh vs. State, (2003) 8 SCC 90, this Court upheld the conviction solely on the basis of the confession of the co-accused, without any corroboration, that too in a situation where the accused himself had not confessed. The judgment in the case of Jameel Ahmed (supra) was relied upon. It was held:

“3. In the present case we are aware of the fact that the appellant has not made any confessional statement nor is there any corroboration of the confessional statement of the co-accused implicating this appellant from any other independent source but then we have held in the above-reported case that if the confessional statement of a co-

accused is acceptable to the court even without corroboration then a confession of a co-accused can be the basis of conviction of another accused so implicated in that confession. Therefore the fact that the appellant herein has not confessed or the confessional statements made implicating him by A-1 and A-2 are not independently corroborated, will not be a ground to reject the evidence produced by the prosecution in the form of confessional statement of co-accused provided the confession relied against the appellant is acceptable to the court.”

145) In Mohmed Amin vs. Central Bureau of Investigation, (2008) 15 SCC 49, this Court convicted the accused on the basis of their confessions and confessional statements of co-accused. It was held that there is no requirement of corroboration if the confessions are proved to be made voluntarily, and the Rules applicable have been complied with. The following observations are pertinent:

“31. The ratio of the abovenoted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the officer concerned in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the co-accused, abettor or conspirator not only for an offence under the Act but also for offence(s) under other enactments, provided that the co-accused, abettor or conspirator is charged and tried in the same case along with the accused and the court is satisfied that requirements of the Act and the Rules have been complied with. Whether such confession requires corroboration depends on the facts of the given case. If the court is convinced that the probative value of the confession is such that it does not require corroboration then the same can be used for convicting the maker and/or the co-accused under the Act and/or the other enactments without independent corroboration.”

146) In Mohd. Ayub Dar vs. State of Jammu and Kashmir, (2010) 9 SCC 312, it was held that even though the guidelines in Kartar Singh, have not been strictly followed, the confession of the accused recorded is admissible against him and can be relied upon solely to convict him. The following observations of this Court are pertinent:

“59. It would, therefore, be clear, as rightly contended by Shri Rawal that merely because the guidelines in Kartar Singh v. State of Punjab were not fully followed, that by itself does not wipe out the confession recorded. We have already given our reasons for holding that the confession was recorded by A.K. Suri (PW 2) taking full care and cautions which were required to be observed while recording the confession.

60. In Ravinder Singh v. State of Maharashtra it has been observed in para 19 that if the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of the accused can be solely based on it. It has also been observed that such confessional statement is admissible as a substantive piece of evidence. It was further observed that the said confession need not be tested for the contradictions to be found in the confession of the co-accused. It is for that reason that even if the other oral evidence goes counter to the statements made in the confession, one’s confession can be found to be voluntary and reliable and it can become the basis of the conviction.

61. In this case, there is ample corroboration to the confession in the oral evidence as well as the documentary evidence in shape of a chit, which is referred to in the said confession. There is a clear reference that the Personal Assistant, who was a non-Kashmiri and kept a beard, had sent a slip inside. Ultimately, that slip was found by the police, which corroborates the contents in the confession. In our opinion, that is a sufficient corroboration to the confession.

64. All these cases suggest that the only test which the court has to apply is whether the confession was voluntary and free of coercion, threat or inducement and whether sufficient caution is taken by the police officer who recorded the confession. Once the confession passes that test, it can become the basis of the conviction. We are completely convinced that the confession in this case was free from all the aforementioned defects and was voluntary.”

147) In view of the above, it can easily be inferred that with regard to the use of such confession as against a co-accused, as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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