Mohd. Ayubdhar And Another v. State Of Nct Of Delhi .

Order

1. The two appellants have been convicted under Sections 3, 4 and 5 of TADA and Sections 4 and 5 of the Explosive Substances Act as well as under Sections 302/120-B IPC. For their conviction under different provisions of TADA, they have been sentenced to imprisonment for five years and six years respectively and for their conviction under Sections 302/120-B, they have been sentenced to imprisonment for life. From the records, it transpires that Appellant 1 Mohd. Ayubdhar was arrested in a hotel on 6-5-1991 and it is alleged by the prosecution that explosive substance was recovered from him. For this incident, FIR No. 178 of 1991 was made and investigation proceeded with. On the same day, that is on 6-5-1991, sometime later the other accused also was arrested and certain explosive substances were recovered from him and the FIR that was registered in respect of him was FIR No. 179 of 1991. Besides this, two FIRs, one in respect of an incident of explosion that had occurred outside Delite Cinema on 25-1-1991 when a case had been registered which was FIR No. 30 of 1991 and another incident that happened inside the toilet of Jubilee Cinema on 27-1-1991, as a result of which one person died and FIR was registered which was FIR No. 34 of 1991. The charges under Sections 3, 4 and 5 of TADA and possession of explosive substance is based upon the two FIRs in relation to the incident dated 6-5-1991, namely, FIR No. 178 and FIR No. 179 of 1991. The charge under Sections 302/120-B is in relation to the incident that occurred on 27-1-1991 in respect of FIR No. 34 of 1991. The conviction of the two appellants is based solely on their statement recorded under sub-section (2) of Section 15 of TADA. There appears to be no other corroborative evidence to the said confessional statement. Though Mr Sushil Kumar, learned Senior Counsel appearing for the appellants attacked the validity of the confessional statement on several grounds but since the appellants have already undergone the sentences awarded for their conviction under Sections 3, 4 and 5 of TADA and Sections 4 and 5 of the Explosive Substances Act, he did not assail the conviction based thereunder. We, therefore, need not examine the legality of the conviction of the appellants under those sections and sentences passed thereunder. He, however, seriously contended that the conviction under Sections 302/120-B cannot be sustained and therefore, the sentences imposed thereunder of imprisonment for life cannot be sustained. It is in this respect, he contended that not only is the confessional statement infirm but also the learned officer who recorded the statement under Section 15 in his evidence has categorically admitted several ingredients which had not been followed by him which means the confessional statement is not reliable and therefore, according to him the learned Designated Judge committed serious error in passing the conviction of the charge under Sections 302/120-B as against the two appellants. Mr Sushil Kumar, learned Senior Counsel appearing for the appellants further contended that even the contents of the confessional statement on being examined, could nowhere indicate that the appellant confessed their involvement in relation to the incident that happened in the toilet of Jubilee Cinema on 27-1-1991 and as such the conviction under Sections 302/120-B cannot be sustained. Mr A.S Nambiar, learned Senior Counsel appearing for the prosecution, on the other hand, contended that taking into consideration the totality of the circumstances and the material on record, the Designated Judge was justified in recording the conviction of the two appellants under Sections 320/120-B and the same need not be interfered with.

2. From the impugned judgment of the learned Designated Judge as well as the contentions raised, it is crystal clear that the conviction is solely based upon the confessional statement recorded by the officer concerned under Section 15 of the Act. Looking at the evidence of the officer who recorded the statement, we find no reason as to why the initial cassette that was recorded was destroyed. Even if we accept the same to be a bona fide act and the second cassette which was taken on being examined, it transpires that the said cassette did not indicate that the officer concerned had given any warning to the accused that he was not bound to make the statement. The witness also in the evidence has not indicated as to why the first cassette was destroyed at all. It further transpires that even in the proceedings, the officer concerned has not indicated that the first video cassette has been destroyed. The officer concerned categorically admitted to the effect that no specific warning had been given to the accused that he was not bound to make the statement in question. That apart, the officer concerned had adopted a queer procedure in the case inasmuch as that the accused made the statement in Hindi, the officer concerned recorded the same in English and then translated the same to the accused in Hindi and got the signature of the accused thereon. There is no reason as to why the officer concerned followed this procedure. In the aforesaid circumstances and for the aforesaid infirmities, we are in agreement with the submission of Mr Sushil Kumar, learned Senior Counsel appearing for the accused-appellants that the confessional statement could not have been utilised by the prosecution to sustain the charge against the accused-appellants of the offence under Sections 302/120-B. Even otherwise also, the confessional statement nowhere indicates the involvement of the two appellants in the incident that happened on 27-1-1991 which incident alone is the basis for making a charge under Sections 302/120-B. In this view of the matter, the conviction of the two appellants under Sections 302/120-B cannot be sustained. We, accordingly, set aside the said conviction and sentence and acquit the two appellants of the said charge. Since the appellants have already undergone the sentences in respect of other charges which conviction is not being assailed, they may be set at liberty forthwith unless they are required in any other case.

3. The appeals are disposed of accordingly.