Holding

Confessional statements made by individuals who are not parties to the proceeding are inadmissible as admissions/confessions and cannot be proved through the police officers who recorded them; they may be used only if the confessor himself is produced as a defence witness.

Summary

The case concerned two separate prosecutions arising from the July 2006 Mumbai suburban train bomb blasts. In Special Case No. 21 of 2006, the accused‑respondents sought to summon four Deputy Commissioners of Police (who had recorded confessional statements of three other accused in a later Special Case No. 4 of 2009) as defence witnesses to prove those confessions. The High Court allowed the summons, but the Supreme Court held that confessional statements made by persons who are not accused in the trial are admissible only against the confessor himself and, under the Evidence Act, cannot be proved through the police officers who recorded them. The Court further held that MCOCA’s Section 18 does not override the general rule, and that Article 20(3) and Section 132 of the Evidence Act do not permit compelling the police officers as witnesses. Consequently, the summons was denied and the High Court order set aside.

Issues considered

The admissibility of confessional statements made by persons not accused in the trial when proved through police officers who recorded them
Whether such confessions can be admitted as relevant facts under Sections 6 and 11 of the Evidence Act
The effect of MCOCA Section 18 on the admissibility of confessions made to senior police officers
The applicability of the ‘res gestae’ doctrine (Section 6) to the confessional statements
The relevance of Article 20(3) of the Constitution and Section 132 of the Evidence Act in compelling witnesses

Legislation cited

Constitution of Indias. 20
Explosives Act, 1884s. 6, s. 98
Explosive Substances Act, 1908s. 3, s. 4, s. 5, s. 6
Indian Evidence Act, 1872s. 11, s. 132, s. 17, s. 18, s. 19, s. 20, s. 21, s. 22, s. 23, s. 24, s. 25, s. 26, s. 27, s. 30, s. 31, s. 32, s. 5, s. 6, s. 60
Indian Penal Code, 1860s. 1208, s. 121, s. 122, s. 123, s. 124, s. 201, s. 212, s. 302, s. 307, s. 324, s. 325, s. 326, s. 327, s. 427, s. 436
Maharashtra Control of Organised Crime Act, 1999 (MCOCA)s. 18
Prevention of Damage to Public Property Act, 1984s. 3, s. 4
Railways Act, 1989s. 151, s. 152, s. 153, s. 154
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)s. 15
Unlawful Activities (Prevention) Act, 1967s. 10, s. 13, s. 16, s. 17, s. 18, s. 19, s. 20, s. 40

Subjects

evidenceconfessional statementsadmissibilityMCOCAres gestaehearsaySection 18Section 30Section 11Section 6Article 20terrorismbomb blasts

Judgment

[2013] 5 S.C.R. 128

A STATE OF MAHARASHTRA
v.
KAMAL AHMED MOHAMMED VAKIL ANSARI & ORS.
(Criminal Appeal No. 445 of 2013)
B MARCH 14, 2013
[P. SATHASIVAM ANO JAGDISH SINGH KHEHAR, JJ.]
Evidence Act, 1872 - ss.5 to 16, 17 to 31, 32 and 60 -
Appreciation of evidence - Two different cases relating to the 2006
bomb blasts in local trains of Mumbai Suburban Railways -
C Separate trials - Different accused in the two cases - Respondents
were accused in the first case - Three persons accused in the
second case, who were not accused/co-accused in the first case,
made confessional statements before officials holding the rank ·
ofDeputy Commissioners of Police who were witnesses in the first
D case - Prayer made by respondents to summon the said witnesses
as defence witnesses - Tenability - Held: Not tenable -
Respondents could not be pennitted to summon said witnesses ,,
as defence witnesses, in order to substantiate confessional
statements made by the three accused in the second case - Said
E witnesses could not vouchsafe the truth or falsity of the
confessional statements - Their evidence did not fall within the
realm of admissibility with reference to ''facts in issue" or "relevant
facts" - Whilst it was pennissible to the accused-respondents to
rely on the confessional statements made by the three accused
F in the second case, it was open to them to do so only through the
persons who had made the confessional statements - Only the
three accused in the second case who made the confessional
statements could vouchsafe for the same and be produced as
defence witnesses by accused-respondents, for their statements
fell in the realm of relevance u/s. 11 - And if said three accused
G appear as defence witnesses in the first case, protection available
to a witness u/s. 132, would also extend to them, if they are
compelled to answer questions posed to them, while appearing
as defence witnesses - Maharashtra Control of Organised Crime

H 128
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 129
VAKIL ANSARI
Act, 1999(MCOCA)-ss.3(1)(ij, 3(2), 3(3), 3(4), 3(5)-IPC-ss.302, A
307, 324, 325, 326, 327, 427, 436, 1208, 121-A, 122, 123, 124A,
201, 212 - Unlawful Activities (Prevention) Act, 1967 - ss.10, 13,
16, 17, 18, 19, 20, 40 - Explosives Act, 1884 - ss. 6, 98 - Explosive
Substances Act, 1908 - ss.3, 4, 5, 6 - Prevention of Damage to
Public Property Act, 1984 - ss.3, 4 - Railways Act, 1989- ss.151, B
152, 153, 154.
Evidence Act, 1872 - ss.5 to 16 - Admissible evidence -
Expanse/sphere of - Held: Is postulated in s.5 - Evidence may
be given "of every fact in issue" and of such other facts expressly
''declared to be relevant': and of no other facts - ss. 6 to 16 define C
"relevant facts': in respect whereof evidence can be given.
Evidence Act, 1872 - s.6- Rule of ''res gestae" incorporated
in s. 6 -Admissibility under - Determining test - Case regarding
bomb blasts in local trains of Mumbai Suburban Railways -
Confessions made by accused in another case sought to be D
admitted as evidence - Held: The confession_s were not
spontaneous reactions arising out the bomb blasts which was the
''fact in issue" and could not be said to have contemporaneously
arisen along with bomb blasts, hence, were not admissible under
the rule of res gestae. E
Evidence Act, 1872 - s. 11 - Realm of relevance under - Held:
Facts inconsistent with ''facts in issue" are included in the realm
of relevance - Likewise, facts making existence or non-existence
of a ''fact in issue" highly probable or improbable, also included
in the realm of relevance - In order to be relevant uls. 11, such F
statement ought to be "a statement about the existence of a fact':
and not 'a statement as to its existence".
Evidence Act, 1872 - ss. 17 to 31 - Admissions and
confessions -Admissibility and inadmissibility of - Held: An
admission or a confession to be relevant must pertain to a "fact G
in issue" or a ''relevant fact" - In that sense, s. 5 (and consequently
ss.6 to 16) inescapably intertwined with admissible admissions/
confessions - Admissibility of admissions/ confessions, would
depend on whether they would fall in the realm of "facts in issue"
H
130 SUPREME COURT REPORTS [2013] 5 S.C.R.

A or "relevant facts" - That in tum to be determined with reference to
ss.5to 16.
Evidence Act, 1872 - ss. 17 to 31 - Admissions and
confessions - Held: Are exceptions to the "hearsay" rule - The
Evidence Act places them in the province of relevance,
B presumably on the ground, that they being declarations against
the interest of the person making them, they are in all probability
true.
Evidence Act, 1872 - ss. 17 to 31 - Admissions and
confessions - Admissibility - Held: Person who made the
C admission/confession (or afwhose behest, or on whose behalf it
was made), should be a parfy to the proceeding because that is
the only way a confession can be used against him.'
Evidence Act, 1872 - ss. 17 to 31 - Admissions and
confessions - Admissibility -· Held: Only such a4missionsl
D confessions are admissible Which are made without'any coercion,
threat ofpromise. · ·· · ·
Evidence Act, 1872 - ss. 25 and 26 - Confessions made ·
before a police officer or while in police custody - 1; admissible -
E Held: A confession should.be uninfluenced, voluntary and fair-
And since it may not be possible to presume, that admissions/
confessions are tininfli.Jenced, voluntary and fair, i.e., without
coercion, threat or promise, if made to a police officer, 'or while in
police custody,·· the same are· rendered 'inadmissible.
F Evidence Act, 1872 ~ s. 27 -Admissibility under- Held: Gamut
of the bar contemplated ulss.25 and 26, is marginally limited by
way of a proviso thereto, recorded in s.27 - Thereunder, a
confession has been made admissible, to the extent of facts
"discovered" on the basis of such confession.
·G. Eviqence Act, 1B72 - ~- 30 .- Ordinarily, a confessional
statement is admissible only as against an accused who bas
made it- But there is only one exception - Exception provided for
in s.30 whereunder a confessional statemenican be used even
against a co"a~qused - For such admissibility, the person making
H . the confession 'besides lmpficating himself, should also implicate
STAT!= OF MAHARASHTRA v. KAMALAHMED MOHAMMED 131
VAKIL ANSARI
others jointly tried with him - In that situation alone, such· a A
confessional statement is relevant even against the others
implicated.
Evidence Act, 1872 - s. 32 - Secondary evidence is
permissible when the issue relates to the cause of a person's
death, or the circumstances of a transaction which resulted in his B
death - But such permissibility, would extend orify:to the
exigencies expressly enumerated in s. 32. ' ·.· " · -• '
Evidence Act, 1872 - s. 60 - Direct! primary e~idence. - .Oral
evidence in respect of a fact, must be of a primary,~atun/;:lt ifvould
be evidence of a primary nature, if it satisfies tlie ~tate·_of facts C
described as "direct" in s.60 - Oral evidence canno(be hearsay,
for that would be indirect/secondary evidence oi the ladtin issue
(or the relevant fact).
Maharashtra Control of Organise,d C['ime Act,, 1.9~9.- s.18. -
Confession made to police officer (not below the rank of Deputy ·• 0
Commissioner of Police) - Admissibility- Interpretation of s.18 -
Overriding effect - Held: S.18 of the'MCOCA th'ough a non-
obstante clause, overrides the mandate c0ntained in 's's. 25 and
a·
26 of the Evidence Act, by rendering confession as admissible,
even if !ti~ made to a police officer (pC(.tbelow -~he' rank 'of Dep!lty . E
Comm1ss10ner of Po/tee) - However, s. 18 of the MCOCA makes
1
such confessional statements admissible,. only ioi ¥he trial of such
person, or co-accused, abettor or conspirator" - Evidence Abt,
1872 - ss.25 and 26. ·. ; , ·• · ·' - · · ·· '
' ~ ' ' ..
Maharashtra Control of Orgai:iised _Crim,.e,.t~.qt,,,1999; s.18 - F
Interpretation of - Strict interpretation - Held: Since s. 18 .of the
MCOCA is an exception tC? the role !aid dpwn in ss.25 an~ 26 of
the Evidence Act, the same will have to be i(lterpretecl_ strj_c_tly, _and
for the limited purpose contemplated t[lereUJJ,der" Evid~nce Act,
1872 - ss. 25 and 26. ~i ' .../I' • •

On 11.7.2006, there were seven bomb blasts·in seven
different first class compartments of local trains of Mumbai
Suburban Railways which resulted in·the death-of 187
persons and severe injuries to 829 persons. In connection
with the said bomb blasts, MCOCA Special Case no.21 of H
132 SUPREME COURT REPORTS [2013] 5 S.C.R.

A 2006 was filed against the accused-respondents for offences
punishable under Sections 302, 307, 324, 325, 326, 327, 427,
436, 120B, 121-A, 122, 123, 124A, 201, 212 IPC read with
Sections 3(1)(i), 3(2), 3(3), 3(4), 3(5), the MCOCA, read with
Sections 10, 13, 16, 17, 18, 19, 20, 40 of Unlawful Activities
B (Prevention) Act, 1967, read with Sections 6, 9B of the
Explosives Act, 1884, read with Sections 3, 4, 5, 6 of the
Explosive Substances Act, 1908, read with Sections 3, 4 of
the Prevention of Damage to Public Property Act, 1984, read
with Sections 151, 152, 153, 154 of the Railways Act, 1989,
C read with Section 12(1 )(c) of the Passports Act, 1967.
According to the prosecution, the accused-respondents
were members of the Students Islamic Movement of India
(SIMI), a terrorist organization and had conspired to plant
bombs at Mumbai's local trains to create panic in furtherance
of terrorist activities being carried out by SIMI in India.
0
As against the accusations contained in Special Case
no.21 of 2006, in another MCOCA Special Case no.4 of 2009,
it was alleged by the prosecution, that the accused therein
were members of the Indian Mujahideen ("IM"), also allegedly
E a terrorist organization, and that all bomb blasts in Mumbai
since the year 2005 had been carried out by the IM. During
the course of investigation in Special Case no.4 of 2009, some
of the accused therein had confessed that they, as members
of the IM had carried out bomb blasts, in Mumbai Suburban
trains on 11.7.2006. In fact, 'the accused Sadiq lsrar Shaikh,
F Arif Badruddin Shaikh and Ansar Ahmad Badshah', in
Special Case no.4 of 2009, had made these confessional
statements under Section 16 of the MCOCA, which were
recorded by high ranking police officials. The confessional
statement of Sadiq lsrar Shaikh was recorded by Vishwas
G Nangre Patil, Deputy Commissioner of Police (witness at
serial no. 64 in Special Case no.21 of 2006). Likewise, the
statement of Arif Badruddin Sheikh was recorded by Miland
Bharambe, Deputy Commissioner of Police (witness at serial
no.65 in Special Case no.21 of 2006). And, the statement of
H Ansar Ahmad Badshah was recorded by Dilip Sawant,
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 133
VAKIL ANSARI

Deputy Commissioner of Police(witness at serial no. 66 in A
Special Case no.21 of 2006). Chitkala Zutshi, the then
Additional Chief Secretary, Home Department (witness at
serial no. 63 in Special Case no.21 of 2006) had granted
sanction for the prosecution of the aforesaid accused in
Special Case No.4 of 2009 on 21.2.2009, by relying inter alia B
on the confessional statements made by Sadiq lsrar Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah;
The accused in Special Case no. 4 of 2009, are different
from the accused in Special Case no. 21 of 2006 and Special
Case no. 4 of 2009, is not being jointly tried with Special Case C
no. 21 of 2006.
In Special Case No.21 of 2006, after the prosecution
closed its evidence, the witnesses were examined in defence
by the accused-respondents. In order to establish their own
innocence, the accused-respondents filed application for D
summoning the said three Deputy Commissioner of Police
i.e. Vishwas Nangre Patil, Miland Bharambe and Dilip Sawant
(witnesses at serial nos. 63, 64 and 65); and Chitkala Zutshi,
the then Additional Chief Secretary, Home Department
(witness at serial no.66) as defence witnesses. The Trial Court E
declined the prayer made by the accused-respondents for
summoning the witnesses at serial Nos.63 to 66. The High
Court however held that the evidence sought to be adduced
by the appellants was relevant and admissible; and that the
appellants were entitled to have the witnesses in question F
summoned, and examine them as witnesses for the defence.
In the present appeal emerging out of Special Case no.
21 of 2006, the first question for determination was, whether
the confessional statements recorded before the witnesses
at serial nos. 64 to 66, by persons who were not accused in G
Special Case no. 21 of 2006, would be admissible in Special
Case no. 21 of 2006. Alternatively, the question that required
consideration was whether the said confessional statements
were admissible under Sections 6 and 11 of the Evidence Act
not as confessional statements, but as "relevant facts". H
134 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Allowing the appeal, the Court
HELD:1. When a question pertaining to the admissibility
of evidence before an Indian court arises, it has to be
determined with reference to the provisions of the Evidence
Act. Alternatively, the question may be determined under a
B special enactment, which may .either make such evidence
admissib_le, or.render it inadmissible. The special enactment
relied upon in the present controversy is, the MCOCA.
Therefore, the questions ·posed for determination in the
present case, will have to be adjudicated on the basis of the
C provisions of the Evidence Act, and/or the MCOCA. [Para 11]
[155-D-F]
2.1. It is relevant in the first instance to describe the
expanse/sphere of admissible evidence. The same has 1>een
postulated in Section 5 of the Evidence Act. Under Section
D 5, evidence may be given "of every fact in issue" and of such
other facts which are expressly "declared to be relevant",
and of no other facts. For the present controversy, the facts
in issue are the seven bomb blasts, in seven different first
class compartments, of local trains of Mumbai Suburban
E Railways, on 11.7.2006. Thus far, there is no serious dispute.
But then, evidence may also be given of facts which are
"declared to be relevanf' under the Evidence Act. Under the
Evidence Act, Sections 6 to 16 define "relevant facts", in
respect whereof evidence can be given. Therefore, Sections
F 5 to 16 are the provisions under the ·Evidence Act, which
alone have to be relied upon for determining admissibility of
evidence. [Para 12] [155-F-H; 156-A]
2.2. Sections 17 to 31 of the Evidence Act pertain to
admissions and confessions. Sections 17 to 31 define
G admissions/confessions, and also, the admissibility and
inadmissibility of admissions/confessions. An analysis of the
aforesaid provisions reveals, that an admission or a
confession to be relevant must pertain to a "fact in issue" or
a "relevant fact". In that sense, Section 5 (and consequently
H Sections 6 to 16) of the Evidence Act are inescapably
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 135
VAKIL ANSARI

intertwined with admissible adm'issions/ confessions. A
Therefore, admissibility of admissions/confessions, would
depend on whether they would fall in the realm of "facts in
issue" or "relevant facts". That in turn is to be determined
with reference to Sections 5 to 16 of the Evidence Act. The
parameters laid down for the admissibility of admissions/ B
confessions are, however, separately provided for under the
Evidence Act, and as such, the determination of admissibility
of one (admissions/confessions) is clearly distinguishable
from the other (facts in issue/relevant facts). [Para 13] [156-
B-E] C
2.3. Admissions and confessions are exceptions to the
"hearsay" rule. The Evidence Act places them in the province
of relevance, presumably on the ground, that they being
declarations against the interest of the person making them,
they are in all probability true. The probative value of an o
admission or a confession does not depend upon its
communication to another. Just like any other piece of
evidence, admissions/confessions can be admitted in
evide.nce only for drawing an inference of tru.th. Therefore,
truth of an admission or a confession can not be evidenced, E
through the person to whom such admission/confession
was made. The position, however, may be different if
admissibility is sought under Sections 6 to 16 as a "fact in
issue" or.as a "relevant fact". (Para 15] [156-H; 157-A-C]
Law of Evidence, by M. Monir, fifteenth edition, Universal Law F
Publishing Co. - referred to.
2.4. The scheme of the provisions pertaining to
admissions/confessions under the Evidence Act (spelt out
in Sections 17 to 31) makes admissions/confessions
admissible (even though they are rebuttable) because the G
author of the statement acknowledges a fact to his own
detriment. This is based on the simple logic that no individual
would acknowledge his/her liability/culpability unless true.
[Para 17] [157-F-G]
2.5. An examination of the provisions of the Evidence H
/
136. · SUPREME COURT REPORTS [2013] 5 S.C.R. •

A . Act would reveal, that only such admissions/confessions are
.; admissible as can be stated to have been made without any
. coercion, threat or promise: Section 24 of the Evidence Act
provides, ttiat a confession made by an accused person is
irrelevant in a criminal proceeding, if such confession has
B been caused by inducement, threat or promise. Sections 25
and 26 of the Evidence Act exclude, from the realm of
. admissibility, confessions made before a police officer or
· while in police custody. Jhere can be no doubt, that the logic
contained in the rule enunciated in Sections 25 and 26 is
founded on the same basis/truth out of which Section. 24 of
:. C the Evidence Act emerges. Thata confession' should be
.uninfluenced, voluntary and fair. And since it may not be
· possible to presume, that admissions/confessions 'are
uninfluenced, voluntary and fair, i.e., without coercion, threat
. or promise', if made to a police officer, or while. in police
D . custody,· the same are rendered inadmissible. There is,
. therefore, a common thread in the' scheme of admissibility
{ .
of admissions/confessions under the Evidence Act, namely,
. . • :'- I .. • ' ' . '

· that the admission/confession is admissible only as against
."the person who'. had made such admission/confession.
E .. Nciturally, it would be inappropriate to implicate a person on
:. 1 the.
basis''of '.a statement
..
made'. by another.
I -'. • . ' • ; ' .....
N
Therefore, the next
• • •

.~logical conclusion, that the person who has made, the
'admission/confession (or at whose.behest, or on whose
a
behalf it is made), shouid be party' to the proceeding
·· F because that is the only way a confession can be used
against him. Section.24 of the Evidence Act leads to such a
. conclusion .. Under.Section 24, a confession made~'by an
;, accused person:·, is rendered irrelevant "against the
•·accused person'.';in the circumstances referred to above.
G . Likewise, Section 25 of the Evidence Act contemplates, that
: : a confession made to a police ·officer cannot be proved :•as
·against a person accused of any offence". Leading to the
.·inference, that a confession is permissible/admissible only
as against the person who has made it,· unless the same is
H . rendered inadmissible .under' so.me.express provision.
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 137
VAKIL ANSARI

Under Section 26 of the Evidence Act, a confession made A
by a person while in custody of the police, cannot "be proved
as against such person" (unless it falls within the exception
contemplated by the said Section itself). The gamut of the bar
contemplated under Sections 25 and 26 of the Evidence Act,
is however marginally limited by way of a proviso thereto, B
recorded in Section 27 of the Evidence Act. Thereunder, a
confession has been made admissible, to the extent of facts
"discovered" on the basis of such confession (this aspect,
is not relevant for the present case). The scheme of the
provisions pertaining to admissions/confessions depicts a c
one way traffic. Such statements are admissible only as
against the author thereof. [Para 18) [158-A-B, E-G; 159-D-
H; [160-A-B]
2.6. It is, therefore clear, that an admission/confession
can be used only as against the person who has made the D
same. The admissibility of confessions which have been
made by the accused (Sadiq lsrar Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah, in Special Case no. 4 of
2009) who are not the accused in Special Case no. 21 of 2006,
will lead to the clear conclusion, that they are inadmissible E
as admissions/confessions under the provisions of the
Evidence Act. Had those persons who had made these
confessions, been accused in Special Case no. 21 of 2006,
certainly the witnesses at serial nos~ 64 to 66 could have been
produced to substantiate the same (subject to the same
F
being otherwise permissible). Therefore, the evidence of
confessional statements recorded before the witnesses at
serial nos. 64 to 66 would be impermissible, within the
scheme of admissions/confessions contained in the
Evidence Act. [Para 19) [160-C-F]
G
2.7. The issue in hand can also be examined from
another perspective, though on the same reasoning.
Ordinarily, a confessional statement is admissible only as
against an accused who has made it. There is only one
exception to the aforesaid rule, wherein it is permissible to
H
138 SUPREME COURT REPORTS [2013] 5 S.C.R.

A use a cenfessional statement, even against person(s) other
than the one who had made it. The aforesaid exception has
been provided for in Section 30 of the Evidence Act. As is
evident from a perusal of Section 30, a confessional
statement can be used even against a co-accused. For such
B admissibility it is imperative, that the person making the
confession besides implicating himself, also implicates
others who are being jointly tried with him. In that situation
alone, such a confessional statement is relevant even against
the others implicated. Insofar as the present controversy is
c concerned, the substantive provision of Section 30 of the
Evidence Act has clearly no applicability because Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah
have not implicated any of the accused-respondents. The
importance of Section 30 of the Evidence Act, insofar as the
present controversy is concerned, emerges from illustration
0 (b) thereunder, which leaves no room for any doubt, that
unless the person who has made a confessional statement
is an accused in a case, the confessional statement made
by him is n~t relevant. None of the accused ~n Special Case
no. 4 of 2009 is an accused in Special Case no. 21 of 2006.
E As such, in terms of illustration (b) under Section 30 of the
Evidence Act, the confessional statement made by the
accused in Special Case no. 4 of 2009, cannot be proved as
a confessional statement, in Special Case no. 21 of2006. This
conclusion has been recorded, on the admitted position, that
F the accused in Special Case no. 4 of 2009 are different from
the accused in Special Case no. 21 of 2006. And further
because, Special Case no. 4 of 2009 is not being jointly tried
with Special Case no. 21 of 2006. Therefore, even though
Section 30 is not strictly relevant, insofar as the present
G controversy is concerned, yet the principle of admissibility,
conclusively emerging from illustration (b) under Section 30
of the Evidence Act, persuades this Court to add the same
to the underlying common thread, that finds place in the
provisions of the Evidence Act, pertaining to admissions/
H confessions. That, an admission/confession is admissible
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 139
VAKIL ANSARI
only as against the person who has made it. [Para 20] [160- A
F-G; 161-E-H; 162-A-D]
2.8. Human conduct per se restrains an individual from
accepting any kind of liability or implication. When such
liability and/or implication is acknowledged by the individual
as against himself, the provisions of the Evidence Act make B
such confessional statements admissible. Additionally, since
a confessional statement is to be used principally as against
the person making it, the maker of the confession will have
an opportunity to contest the same under Section 31 of the
Evidence Act, not only by producing independent evidence C
therefor, but also, because he will have an opportunity to
contest the veracity of the said confessional statement, by
effectively cross-examining the witness produced· to
substantiate the same. Such an opportunity, would also b.e
available to all other co-accused who would be confronted o
with a confessional statement made by an accused against
them (as in Section 30 of the Evidence Act), as they too would
have an.opportunity to contest the confessional statement
made by the.accused, in the same manner as the author of
the confession.- Illustration (b) under Section 30 of. the E
Evidence Act contemplates a situation wherein the author
of the .confessional statement is not a co-accused. Illustration .
(b) renders such confessionaLstatements inadmissible.
There is no:room for:testing the veracity of the said·
confessional statement,·either,at.the hands of the person·
who made it, or by the person against whom it is made, F
Illustration (b) under Section 30 makes such a .confessional
statement inadmissible· for the sole. reason, that the. person
who made the confession,· is not a co-accused in the case.
Again, the underlying, principle brought out through.
illustration (b) under Section 30 of the Evidence Act is;:that a G
confessional statement is relevant only and ·only,. if the.
author of confessional sta.tement himselfis an accused in a
case, wh.e.re -the c~nfessionai statem~nt is being proved. In
the pre_s~nt, co1,1tr()ver~Y, _th,e ~~-thor~.<)f the confessi_<?nal
statements (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and H
140 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Ansar Ahmad Badshah) are not amongst the accused in
Special Case no. 21 of 2006. The confessional statements
made by them, would therefore be inadmissible (as
admissions/confessions) in the present case (Special Case
no. 21 of 2006), as the situation in the present case is exactly
B the same as has been sought to be explained through
illustration (b) under Section 30 of the Evidence Act. (Para
21] [162-D-H; 163-A, C-E]
2.9. It is also possible, to determine the admissibility of
the statements of the accused (Sadiq lsrar Shaikh, Arif
c Badruddin Shaikh and Ansar Ahmad Badshah) made to the
witnesses at serial nos. 64 to 66 again by placing reliance on
Sections 25 and 26 of the Evidence Act. Section 25 makes a
confessional statement made to a police officer inadmissible
against "a person accused of any offence". Likewise, a
0 confessional statement made while in the custody of police
cannot be proved as against "the person making such
confession" under Section 26 of the Evidence Act. It is
nobody's case, that the instant confessional statements
made by the accused in Special Case no. 4 of 2009 are being
E proved to substantiate the "discovery" of facts emerging out
of such confessional statements. In the aforesaid view of the
matter, the exception to Sections 25 and 26 of the Evidence
Act contemplated under Section 27 thereof, would also not
come into play. Since admittedly the confessional
statements, which are sought to be substantiated at the
F behest of the accused-respondents, were made by the
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah) in Special Case no. 4 of 2009, to
different "police officers" (all holding the rank of Deputy
Commissioners of Police), the said confessional statements
G are inadmiss.ible under Sections 25 and 26 of the Evidence
Act. [Para 22] [163-F-H; 164-A-C]
2.1 o. The issue of admissibility of the confessional
statements made by Sadiq lsrar Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah before the witnesses at
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 141
VAKIL ANSARI
serial nos. 64 to 66, needs to be examined from yet another A
perspective. Based on the conclusion drawn by the
Supreme Court in case of State of Gujarat Vs. Mohammed
Atik, the High Court accepted the prayer made by the
respondents, that the confessional statements made by the
accused in Special Case no. 4 of 2009, would be admissible s
in Special Case no. 21 of 2006. In State of Gujarat Vs.
Mohammed Atik, in accepting the admissibility of the
confessional statement in one case as permissible in
another case, reliance was placed by this Court on Section
15 of the TADA. The admissibility of the confessional c
statements was determined not with reference to the
Evidence Act, but under Section 15 of the TADA. It is
apparent, that the confessional statement made by an
accused was held to be relevant in State of Gujarat Vs.
Mohammed Atik under Section 15 of the TADA, on the
fulfilment of the condition, that the same was recorded in D
consonance with the provisions of the said Act, as also, the
satisfaction of the ingredients contained in the proviso under
sub-Section (1) of Section 15 of the TADA, namely, the person
who had made the confession, and the others implicated
were facing a joint trial. The judgment rendered by th_is Court E
in State of Gujarat Vs. Mohammed Atik has been incorrectly
relied upon while applying the conclusions rendered in the
same to the controversy in hand, as the confessional
statements made by Sadiq lsrar Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Badshah do not implicate the F
accused-rei;;pondents in Special Case no. 21 of 2006,. nor are
the accused-respondents being jointly tried with the persons
who had made the confessional statements. Reliance has
not been placed by the accused-respondents, on any
provision under the MCOCA, to claim admissibility of the G
witnesses at serial nos. 63 to 66 as defence witnesses. Nor
have the counsel for the accused-respondents invited
attention to any other special statute applicable hereto,
whereunder such a course of action, in the manner claimed
by the respondents, would be admissible. Therefore, the H
142 SUPREME COURT REPORTS [2013] 5 S.C.R.

A High Court erred in relying on the judgment rendered by this
Court in State of Gujarat Vs. Mohammed Atikwhile determining
the controversy in hand. [Paras 23, 24] [164-D; 165-D, H; 166-
A-E]
StateofGujaratv. MohammedAtikAIR 1998SC 1686: 1998
B (2) SCR 664 - explained.
3.1. From a perusal of Section 6 of the Evidence Act, it is
clear that the test to determine admissibility under the rule
of "res gestae" is embodied in words "are so connected with
a fact in issue as to form a part of the same transaction"; It is
C therefore, that for describing the concept of "res gestae", one
would need to examine, whether the fact is such as can be
described by use of words/phrases such as, contem-
poraneously arising out of the occurrence, actions having a
live link to the fact, acts perceived as a part of the
D occurrence, exclamations (of hurt, seeking help, of disbelief,
of cautioning, and the like) arising out of the fact,
spontaneous reactions to a fact, and the like. This Court is
satisfied, that the confessional statements recorded by the
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
E Ansar Ahmad Badshah) in Special Case no. 4 of 2009 to the
witnesses at serial nos. 63 to 66 do not satisfy the ingredients
of the rule of "res gestae" incorporated in Section 6 of the
Evidence Act. This is so because the statements made by
Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
F Badshah, cannot be said to have contemporaneously arisen
along with the bomb blasts of 11.7.2006, which is the "fact in
issue". The statements made by Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah are most
certainly riot, spontaneous reactions arising out of the bomb
blasts of 11.7.2006. The above inferences are fully
G substantiated, if examined in conjunction with the legislative
illustration's incorporated under Section 6 of the Evidence
Act. [Para 29] [172-C; 173-A-Gl · ·
. 3.2. A perusal of Section 11 of the Evidence Act reveals,
H that facts inconsistent with "facts in issue" are included in
STATE OF MAHARASHTRA v. KAMALAHMED MOHAMMED 143
VAKIL ANSARI

the realm of relevance. Likewise, facts which make the A
existence or non-existence of a "fact in issue" highly
probable or improbable, have also been included in the realm
of relevance. There can certainly be no doubt about the
relevance of the confessional statements made.by the
accused (Sadig lsrar Shaikh, Arif Badruddin Shaikh and s
Ansar Ahmad Badshah) in Special Case no. 4 of 2009, as they
would clearly demonstrate the inconsistency of the case set
up by the prosecution against the accused-respondents in
Special Case no. 21 of 2006. In such an eventuality, there
would also be no doubt, that the prosecution case would be c
rendered highly improbable. [Paras 33, 34] [181-G-H; 182-
F-G]
3.3. However, a perusal of Section 60 of the Evidence Act,
1872 leaves no room for any doubt, that oral evidence in
respect of a fact, must be of a primary nature. It would be o
evidence of a primary nature, if it satisfies the state of facts
described as "direct" in Section 60. Illustrative instances of
direct/primary evidence, are expressed in Section 60 itself.
When it pertains to a fact which can be seen, it must be the
statement of the person who has himself seen it; if when it E
refers to a fact Which can be perceived, it must be the
statement of the person who has perceived it; and when it
pertains to an opinion (or the basis on which that opinion has
been arrived at), it must be the statement of the person who
has himself arrived at such opinion. Stated differently, oral
evidence cannot be hearsay, for that would be indirect/ F
secondary evidence of the fact in issue (or the relevant fact).
[Para 34] [183-F-H; 184-A]
3.4. In order to determine the truthfulness of the
confessional statements which are sought to be relied upon
bYthe accused-respondents, it is inevitable in terms of the G
mandate of Section 60 of the Evidence Act, thatthe accused
(Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahm·ad
Badshah) in Special Case no~ 4 of 2009, who had made the
said confessional statements, must themselves depose
H
144 SUPREME COURT REPORTS [2013) 5 S.C.R.

A before a Court for effective reliance, consequent upon the
relevance thereof having been affirmed under Section 11 of
the Evidence Act. This Court affirms the fine distinction made
by the counsel for the accused-respondents in pointing out
that the confessional statements made by Sadiq lsrar
B Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah,
would only constitute "a statement as to the existence of
such fact". That would not be direct/primary evidence. The
same would clearly fall in the mischief of the "hearsay rule".
In order to be relevant under Section 11 of the Evidence Act,
c such statement ought to be "a statement about the existence
of a fact", and not "a statement as to its existence".
Therefore, whilst it is permissible to the accused-
respondents to rely on the confessional statements made
by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah, it is open to them to do so only through
0
the persons who had made the confessional statements. By
following the mandate contained in Section 60 of the
Evidence Act, it is not open to the accused-respondents, in
view of the expressed bar contained in Section 60 of the
Evidence Act, to prove the confessional statements through
E the witnesses at serial nos. 63 to 66. In the aforesaid view of
the matter, it is not possible to accept the plea advanced at
the hands of the counsel for the accused-respondents, that
they should be permitted to prove the confessional
statements through the witnesses at serial nos. 63 to 66.
F [Para 35] [184-B-G]
3.5. It is necessary in connection with the conclusion
drawn hereinabove, to deal with the submission advanced
at the hands of the counsel for the accused-respondents,
even on the touchstone of Section 32 of the Evidence Act. A
G perusal of Section 32 reveals, that it is permissible, while
leading evidence relating to the cause of a person's death
or relating to the circumstances which resulted in his death,
to produce in evidence statements, written or verbal, made
l;>y a person who has since died, or by the persons who
H cannot be found, or by those who have become incapaQ-le
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 145
VAKIL ANSARI

of giving evidence, or by those whose attendance cannot be A
procured without an amount of delay. It is clear, that
secondary evidence is permissible when the issue relates
to the cause of a person's death, or the circumstances of a
transaction which resulted in his death. But such
permissibility, would extend only to the exigencies expressly B
enumerated.in Section 32 of the Evidence Act. The situations
wherein secondary evidence is permissible under Section
32 of the Evidence Act include statements made by persons
who have since died, or statements made by persons who
cannot be found, or statements made by persons who have c
become incapable of giving evidence, or statements made
by persons who cannot be procured without an amount of
delay or expense. Neither of these exigencies exists insofar
as the present controversy is concerned. The authors of the
confessional statements (Sadiq lsrar Shaikh, Arif Badruddin
0
Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of
2009, are very much available and their presence can be
procured by the accused-respondents to be presented as
defence witnesses on their behalf. In the aforesaid view of
the matter, it is not possible to accept, that the accused-
respondents can place reliance on Section 32 of the E
Evidence Act, in order to lead evidence in respect of the
confessional statements (made by Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah), by
recording evidence to the statements of the witnesses at
serial nos. 63 to 66. [Paras 36, 37] (184-H; 185-A;189-D-H; F
190-A-B]
3.6. In order to render Section 32 of the Evidence Act,
admissible for recording the statements of witnesses at serial
nos. 63 to 66, in lieu of the confessional statements made by
Sadiq lsrar Shaikh, Arif B.adruddin Shaikh and Ansar Ahmad G
Badshah, counsel for the accused-respondents had placed
emphatic reliance on Article 20 of the Constitution of India.
Relying on sub-Article (3) of Article 20, it was the contention
of the counsel for the accused-respondents, that since no
accused can be compelled to be a witness against himself, H
146 SUPREME COURT REPORTS [2013] 5 S C.R.

A it would not be open to the accused-respondents to
summon Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah, and thereby compel them to be
. witnesses against themselves. The plea advanced is clearly
not available to the accused-respondents in view of the
B protection afforded to a witness who would find himself in
such a peculiar situation under Section 132 of the Evidence
Act. Section 132 of the Evidence Act clearly negates the
basis of the submission, adopted by the accused-
respondents, for being permitted to lead secondary
C evidence to substantiate the confessional statements made
by Sadiq 1srar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah. Accordingly, it is reiterated that the
confessional statements made by the ·accused (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)
in Special Case no. 4 of 2009 cannot be proved in evidence,
0 through the statements of the witnesses at serial nos. 63 to
66. ·The authors of the confessional statements (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)
may be produced as defence witnesses by the accused-
respondents, for their statements would fall in the realm of
E relevance under Section 11 of the Evidence Act. And in case
Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah appear as defence ~itnesses in Special Case no.
21 of 2006, the protection available to a witness under
Section 132, would also extend to them, if they are compelled
F to answer questions posed to them, while appearing as
defence witnesses in Special Ca~e no. 21 of 2006. [Para 38
and 39] [190-C-D, G-H; 191-B, F-H; 192-A-C]
Venkateshan v. State, 1997 Cr. L.J. 3854; Gentela Vijaya
Vardhan Rao v. State of A.P. 1996 (6) SCC 241; Munna Lal v.
G Kameshwari AIR 1929 Oudh 113; Mt.Naima Khatun v. Basant
Singh AIR 1934 Allahabad 406; A.PL.S. V.L. Sevugan Chettiar ·
v. Raja Srimathu Muthu Vijaya Raghunath AIR 1940 Madras
273; R.D Sethna v. Mirza Mahomed Shrazi (No.4) (1907) 9
Bombay Law Reporter 1047 Nihar Bera v. Kadar Bux
H Mohammed AIR 1923 Calcutta 290 - referred to.
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 14 7
VAKIL ANSARI
4.1. It is also necessary to examine the issue in hand with A
reference to the provisions of the MCOCA. Section 18 of the
MCOCA through a non-obstante clause, overrides the
mandate contained in Sections 25 and 26 of the Evidence
Act, by rendering a confession as admissible, even if it is
made to a police officer (not below the rank of Deputy B
Commissioner of Police). Therefore, even though Sections
25 and 26 of the Evidence Act render inadmissible
confessional statements made to a police officer, or while in
police custody, Section 18 of the MCOCA overrides the said
provisions and bestows admissibility to such confessional C
statements, as would fall within the purview of Section 18 of
the MCOCA. However, Section 18 of the MCOCA makes such
confessional statements admissible, only for "the trial of such
person, or co-accused, abettor or conspirator". Since
Section 18 of the MCOCA is an exception to the rule laid D
down in Sections 25 and 26 of the Evidence Act, the same
will have to be interpreted strictly, and for the limited purpose
contemplated thereunder. The admissibility of a
confessional statement would clearly be taken as overriding
Sections 25 and 26 of the Evidence Act for purposes of
admissibility, but must mandatorily be limited to the accused- E
confessor himself, .and to a co-accused (abettor or
conspirator). It is not the contention of the counsel for the
accused-respondents that the persons who had made the
confession (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah) before witnesses at serial nos. 64 F
to 66 are the. accused themselves along with the co-a~cused
(abettor or conspirator) in Special Case no.21 of 2006. It is
therefore apparent, that the Ingredients which render a
confessional statement admissible under Section 18 of the
MCOCA are not satisfied in the facts of the present case. G
Section 18 of the MCOCA cannot constitute the basis of
relevance of the confessional statements made by the
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh a)1d
Ansar Ahmad Badshah) in Special Case no. 4 of 2009, t.o the
case in hand. It is therefore not possible to accept the H
'148 SUPREME COURT REPORTS [2013] 5 S.C.R.

A admissibility of the witnesses at serial nos. 63 to 66 insofar
as Special Case no. 21 of 2006 is concerned. Section 18 of
the MCOCA is an exception to Sections 25 and 26 of the
Evidence Act, only in a trial against an accused (or against a
co-accused - abettor or conspirator) who has made the
B confession. The said exemption has not been extended to
other trials in which the person who had made the
confession is not an accused. [Paras 40, 41] [192-C, H; 193-
F-H; 194-A-F; 195-F]
4.2. It clearly emerges from the submissions advanced
c at the behest of the accused-respondents, that their objective
is not to rely on the factum of a confessional statement
having been recorded. The objective is to achieve
exculpation of blameworthiness on the basis of the truth of
the confessional statements made before witnesses at serial
0 nos. 63 to 66. However, the witnesses sought to be produced
in their defence by the accused-respondents (the witnesses
at serial nos. 64 to 66), cannot vouchsafe the truth or falsity
of the confessional statements made by Sadiq lsrar Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah. It is
indeed the persons who had made such confessions who
E can do so. Since it is the truthfulness of the confessional
statements made before the witnesses at serial nos. 63 to 66
which is the real purpose sought to be achieved, only those
who had made the confessional statements (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah)
F can vouchsafe for the same. This can only be done under
the provisions of the Evidence Act. For that the accused-
respondents, can only pin their hopes on the persons who
had made the confessional statements. There is certainly no
escape from the above course in view of the mandate of
G Section 60 of the Evidence Act. In the background of the
object sought to be achieved, it is apparent, that Sections 35
and 80 would be of no avail to the accused-respondents in
the facts and circumstances of this case, since the witnesses
at serial nos. 63 to 66 cannot be summoned, as their evidence
H before the trial Court would not fall within the realm of
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 149
VAKIL ANSARI

admissibility with reference to "facts in issue" or "relevant A
facts". [Para 43) (198-A-H; 199-A]
5. From different angles and perspectives based on the
provisions of the Evidence Act and MCOCA examined on the
basis of submissions advanced by the rival parties, it is
inevitable to conclude, that the accused-respondents cannot B
be permitted to summon the witnesses at serial nos .. 63 to
66 as defence witnesses, for the specific objective sought
to be achieved by them. It is not open to the accused-
respondents to produce the witnesses at serial nos. 63 to 66
in order to substantiate the confessional statements made C
by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah (the accused in· Special Case no. 4 of 2009),
who are not accused/co-accused in Special Case no. 21 of
2006 (out of the proceedings whereof, the instant.appeal has
arisen). (Para 44 and 45] (199-B-E] o
Case Law Reference:
1998 (2) SCR 664 explained Para 23, 24
1997 Cr. L.J. 3854 referred to Para 28
1996 (6) sec 241 referred to Para 28 E
AIR 1929 Oudh 113 referred to Para 28
AIR 1934 Allahabad 406 referred to Para 32
AIR 1940 Madras 273 referred to Para 32
(1907) 9 BLR 1047 referred to Para 32 F
AIR 1923 Calcutta .290 referred to Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 445 of 2013.
From the Judgments & Orders dated 26.11.2012 of the High
Court of Judicature at Bombay, in Criminal Appeal No. 972 of2012. G
Shekhar Naphade, Sanjay V. Kharde, Aparajita Singh,
Chinmoy Khaladkar, Asha Gopalan Nair for the Appellant.
Amrendra Sharan, Dr. Yug Mohit Choudhary, Khan Abdul
Wahab, lzhar Ahmed Siddiqui, Ansari Feroz, Sheikh Naima, Rishi H
150 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Maheshwari, Abu John Mathew, P.S. Sudheerforthe Respondents.
The Judgment of the Court was delivered by
JAG DISH SINGH KHEHAR, J. 1. On 11. 7.2006 there were
seven bomb blasts in seven different first class compartments of
local trains of Mumbai Suburban Railways. These bomb blasts
8
resulted in the death of 187 persons. Severe injuries on account of
the said bomb blasts were caused to 829 persons. These blasts
led to the registration of following seven criminal reports:
(i) CR No. 77 of 2006 at Mumbai Central Police Station.
c (ii) CR No.78 of 2006 at Mumbai Central Police Station.
(iii) CR No.86 of 2006 at Sandra Railway Police Station
(iv) CR No.87 of 2006 at Sandra Railway Police Station
(v) CR No.41 of 2006 at Andheri Railway Police Station.
o (vi) CR No.59 of 2006 at Vasai Road Railway Police
Station
(vii) CR No.156 of 2006 at Sorivli Railway Police Station.
In all these cases investigation was transferred to the Anti Terrorists
Squad, Mumbai (hereinafter referred to as "the ATS"), wherein the
E matter was registered as CR No.5 of 2006.
2. In all 13 accused were arrested in connection with the bomb
blasts of 11.7.2006. The accused-respondents herein are the
accused in the controversy. Initially the accused-respondents were
F charged with offences punishable under Sections 302, 307, 326,
427, 436, 20A, 120S, 123 and 124 of the Indian Penal Code, 1860
read with Section 34 of the Indian Penal Code. The accused-
respondents were also charged with offences under the Indian
Explosives Act, the Prevention of Damage to Public Property Act,
the offences under the Indian Railways Act and the offences
G punishable under the Unlawful Activities (Prevention) Act, 1967.
Later, the provisions of Maharashtra Control of Organised Crime
Act, 1999 (hereinafter referred to as "the MCOCA") were applied
to the case. Thereupon, the accused-respondents were charged
under Sections 3(1)(i),3(2) and 3(4) of the MCOCA. On 30.11.2006
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 151
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]

the charge-sheet in CR no.5 of 2006 came to be filed as MCOCA A
Special Case no.21 of 2006 (hereinafter referred to as Special
Case No.21 of 2006) for offences punishable under Sections 302,
307,324,325,326,327,427,436, 1208; 121-A, 122, 123,124A,
201, 212 Indian Penal Code, 1860, read with Sections 3(1)(i), 3(2),
3(3), 3(4), 3(5), the MCOCA, read with Sections 10, 13, 16, 17, 18, B
19, 20, 40 of Unlawful Activities (Prevention) Act, 1967, read with
Sections 6, 98 of the Explosives Act, 1884, read with Sections 3,
4, 5, 6 of the Explosive Substances Act, 1908, read with Sections
3, 4 of the Prevention of Damage to Public Property Act, 1984,
read with Sections 151, 152, 153, 154 of the Railways Act, 1989, c
read with Section 12(1 )(c) of the Passports Act, 1967.
3. The prosecution case (in Special Case No.21 of 2006) in
brief is, that bombs were planted on 11. 7.2006 in seven different
first class compartments of local trains of Mumbai Suburban
Railways by the Students Islamic Movement of India (hereinafter D
referred to as "the SIMI"). SIMI is a terrorist organization, the
accused-respondents are allegedly its members. According to the
prosecution, the accused-respondents had conspired to plant
bombs at Mumbai's local trains to create panic in furtherance of
terrorist activities being carried out by the SIMI in India. E
· 4. Having examined its witnesses, and having placed on. the
record of Special Case No.21 of 2006, the necessary exhibits, the
prosecution closed its evidence on 4.4.2012. Thereafter, witnesses
were examined in defence by the accused-respondents. On
19.7.2012, accused Nos.2, 6, 7 and 13 filed an application (at F
Exhibit 2891) praying for issuance of summons to 79 witnesses
named therein. On 24.7.2012, the accused-respondents filed
another application (at Exhibit2914), again for summoning defence
witness. The application filed by the accused-respondents, inter alia,
included the names of the following witnesses : G
(i) Witness at serial No.63 Chitkala Zutshi, Additional
Chief Secretary (Home
Department)
(ii) Witness at serial No.64 Vishwas Nangre Patil,
H
152 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Deputy Commissioner of
Police
(iii) witness at serial No.65 Milind Bharambe, Deputy
Commissioner of Police
(iv) Witness at serial No.66 Dilip Sawant, Deputy
B. Commissioner of Police.
5. To appreciate the reason for summoning the witnesses at
serial nos. 63 to 66, it is necessary to refer to some more facts. As
against the>accusations contained in Special Case no.21 of 2006,
C referred to above, in another MCOCA Special Case no.4 of 2009
(hereinafter referred to as 'Special Case No.4 of 2009'), it was
alleged by the prosecution, that the accused therein were members
of the Indian Mujahideen (hereinafter referred to as "the IM"). The
IM is also allegedly a terrorist organization, blameworthy of such
activities within the territorial jurisdiction of India. The investigating
D agency had been claiming, that all bomb blasts in Mumbai since
the year 2005 had been carried out by the IM. During the course of
investigation in Special Case no. 4 of 2009, some of the accused
therein (Special Case no. 4 of 2009) had confessed that they, as
members of the IM had carried out bomb blasts, in Mumbai
E Suburban trains on 11.7.2006. In fact, 'the accused Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah', in
Special Case no.4 of 2009, had made these confessional
statements under Section 16 of the MCOCA. The confessional
statement of Sadiq lsrar Shaikh was recorded by Vishwas Nangre
F Patil, Deputy Commissioner of Police (witness at serial no.64).
Likewise, the statement of Arif Badruddin Sheikh was recorded by
Miland Bharambe, Deputy Commissioner of Police (witness at
serial No.65). And, the statement of Ansar Ahmad Badshah was
recorded by Dilip Sawant, Deputy Commissioner of Police (witness
G at serial No.66). Chitkala Zutshi, the then Additional Chief Secretary,
Home Department (witn~ss at serial No.63) had granted sanction
for the prosecution of the aforesaid accused in Special Case No.4
of 2009 on 21.2.2009, by relying interalia on the confessional
statements made by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
H Ansar Ahmad Badshah. The accused (respondents herein?Clesire
STATE OF MAHARASHTRA v. KAMALAHMED MOHAMMED 153
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
to produce the witnesses at serial nos. 63 to 66, to establish their A
own innocence.
6. The Trial Court by its order dated 1.8.2012, declined the
prayer made by the accused-respondents for summoning the
witnesses at serial Nos.63 to 66. Dissatisfied with the order dated
1.8.2012, the accused-respondents preferred Criminal Appeal B
No.972 of 2012 before the High Court of ~udicature at Bombay
(hereinafter referred to as 'the High Court'). The High Court by its
order dated 26.11.2012 allowed the appeal preferred by the
accused-respondents. The operative part of the aforesaid order
dated 26.11.2012, is being extracted hereunder: C
"83. As a result of the aforesaid discussion, it is clear that
the evidence sought to be adduced by the appellants
is relevant and admi'ssible. The appellants cannot be
prevented from bringing on record such evidence. The
impugned order is contrary to law, and needs to be D
interfered with. ·
84. The appeal is allowed. The impugned order is set
aside.
85. The appellants shall be entitled to have the witnesses E
in question summoned, and examine them as
witnesses for the defence.
86. Appeal is disposed of accordingly."
7. Aggrieved with the order dated 26.11.2012, passed in
Criminal Appeal No.972 of 2012, the State of Maharashtra F
prefe~red the instant Special Leave Petition (Crl.) No.9707 of2012.
8. Leave granted.
9. It is necessary to first define the contours of the controversy,
which we are called upon to adjudicate, in the present appeal. The
accused-respondents press for summoning the witnesses at serial G
nos. 63 to 66 as defence witnesses. The object for summoning the
aforesaid witnesses is, that the witnesses at serial nos. 64 to 66
had recorded the confessional statements of Sadiq lsrar Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah during the
H
154 SUPREME COURT REPORTS [2013) 5 S.C.R.

A course of investigation in Special Case no. 4 of 2009. Based
interalia on the aforesaid confessional statements, the witness at
serial no. 63 had accorded sanction for prosecution of the accused
in Special Case no. 4 of 2009. The object of the accused-
respondents (of producing these witnesses in defence) is to show,
B that others are responsible for actions for which the accused-
respondents are being blamed. It is relevantto pointedly notice, that
the aforesaid confessional statements were not made by persons
who are accused in Special Case no. 21 of 2006 (i.e. they are not
co-accused with the accused~respondents). The first question for
c determination therefore would be, whether the confessional
statements recorded before the witnesses at serial nos. 64 to 66,
by persons who are not accused in Special Case no. 21 of 2006,
would be admissible in Special Case no. 21 of 2006. The instant
question will have to be examined with reference to the provisions
of the Indian Evidence Act, 1872 (hereinafter referred to as, the
0
Evidence Act) and the MCOCA. Alternatively, the question that
would need an answer would be, whether the said confessional
statements are admissible under Sections 6 and 11 of the
Evidence Act not as confessional statements, but as "relevant facts".
The answers of the two alternate questions will have to be
E determined on totally different parameters, and under different
statutory provisions. Both the questions are, therefore, being
examined by us independently hereinafter.
10. Before venturing into the two alternate questions referred
F to in the foregoing paragraph, it is necessary to delineate a few
salient features on which there is no dispute between the rival
parties. It is not a matter of dispute, that confessional statements
have been made during the course of investigation in Special Case
no. 4 of 2009. The aforesaid confessional statements were made
before the witnesses at serial nos. 64 to 66. The witnesses at serial
G nos. 64 to 66 were then holding the rank of Deputy Commissioners
of Police (at the time when the confessional statements were
recorded). The present appeal is a proceeding, emerging out of
Special Case no. 21 of 2006. The accused in Special Case no. 4
of 2009, are different from the accused in Special Case no. 21 of
H 2006. Importantly, Special Case no. 4 of 2009, is not being j9intly
,
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 155
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
tried with Special Case no. 21 of 2006. The accused in Special A
Case no. 4 of 2009 (who had made the confessional statements
under reference), are available. In other words, those who had made
the confessional statements (Sadiq lsrar Shaikh, Arif Badruddin
Shaikh' and· Ansar Ahmad Badshah) before the witnesses at serial
nos. 64 to 66, can be 'summoned to be produced in Special Case B
no. 21 of 2006, as defence witnesses, at the choice and asking of
the accused-respondents (in Special Case no. 21 of 2006), for
affinning or denying the correctness of the confessional statements
made by them (before the witnesses at serial nos. 64 to 66).
According to the learned counsel for the appellant, those who had C
made the confessional statements (Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) before the
witnesses at serial nos. 64 to 66, have since retracted their
confessional statements. Insofar as the latter aspect of the matter
is concerned, the same is neither acknowledged nor denied at the
0
beh.est of the accused-respondents.
11. When a question pertaining to the admissibility of evidence
before an Indian court arises, it has to be detennined with reference
to the provisions of the Evidence Act. Alternatively, the question may
be determined under a special enactment, which may either make
E
such evidence admissible, or render it inadmissible. The special
enactment relied upon in the present controversy is, the MCOCA.
Therefore, the questions posed for detennination in the present
case, will have to be adjudicated on the basis of the provisions of
the Evidence Act, and/or the MCOCA.
F
12. It is relevant in the first instance to describe the expanse/
sphere of admissible evidence. The same has been postulated in
Section 5 of the Evidence Act. Under Section 5 aforementioned,
evidence may be given "of every fact in issue" and of such other
facts which are expressly "declared to be relevant", and of no other G
facts. For the present controversy, the facts in issue are the seven
bomb blasts, in seven different first class compartments, of local
trains of Mumbai Suburban Railways, on 11.7.2006. Thus far, there
is no serious dispute. But then, evidence may also be given offacts
which are "declared to be relevant" under the Evidence Act. Under
H
156 SUPREME COURT REPORTS [2013] 5 S.C.R.

A the Evidence Act, Sections 6 to 16 define "relevant facts", in respect
whereof evidence can be given. Therefore, Sections 5 to 16 are
the provisions under the Evidence Act, which alone have to be relied
upon for determining admissibility of evidence.
13. Sections 17 to 31 of the Evidence Act pertain to
B admissions and confessions. Sections 17 to 31 define admissions/
confessions, and also, the admissibility and· inadmissibility of
admissions/confessions. An analysis of the aforesaid provisions
reveals, that an admission or a confession to be relevant must
pertain to a "fact in issue" or a "relevant fact". In that sense, Section
c 5 (and consequently Sections 6 to 16) of the Evidence Act are
inescapably intertwined with admissible admissions/confessions.
It is, therefore, essential to record here, that admissibility of
admissions/confessions, would depend on whether they would fall
in the realm of "facts in issue" or "relevant facts". That in tum is to
be determined with reference to Sections 5 to 16 oft.he Evidence
0
Act. The parameters laid down for the admissibility of admissions/
confessions are, however, separately provided for under the
Evidence Act, and as such, the determination of admissibility of one
(admissions/confessions) is clearly distinguishable from the other
E (facts in issue/relevantfacts).
14. We shall now endeavour to delve into the first question,
namely, whether the confessional statements recorded by the three
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah, in Special Case no. 4 of 2009), before the
F witnesses at serial nos. 64 to 66, are admissible as confessions in
the trial of Special Case no. 21 of 2006. There seems to be a
serious dispute between the rival parties, whether the deposition
in respect of these confessional statements, can only be made by
producing as witnesses, the person who had made such
G admission/confession; or in the alternative, deposition thereof can
also be made through the persons before whom such confessions
were made.
15. Admissions and confessions are exceptions to the
"hearsay" rule. The Evidence Act places them in the province of
H relevance, presumably on the ground, that they being declarations
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 157
VAKIL ANSARI [JAGDISH SINGH KHEHAR, J.]
against the interest of the person making them, they are in all A
probability true. The probative value of an admission or a confession
does not depend upon its communication to another. Just like any
other piece of evidence, admissions/confessions can be admitted
in evidence only for drawing an inference of truth (See Law of
Evidence, by M. Monir, fifteenth edition, Universal Law Publishing · B
Co.). There is, therefore, no dispute whatsoever in our mind, that
truth of an admission or a confession can not be evidenced, through
the person to whom such admission/confession was made. The
position, however, may be different if admissibility is sought under
Sections 6 to 16 as a "fact in issue" or as a "relevant facf' (which is c
the second question which we are called upon to deal with). The
second question in the present case, we may clarify, would arise
only if we answer the first question in the negative. For only then,
we will have to determine whether these confessional statements
are admissible in evidence, otherwise than, as admissions/ 0
confessions.
16. Therefore to the extent, that a confessional statement can
be evidenced by the person before whom it is recorded, has been
rightfully adjudicated by the High Court, by answering the same in
the affirmative. The more important question however is, whether E
the same would be admissible through the witnesses at serial nos.
63 to 66 in Special Case no. 21 of 2006. Our aforesaid
determination, commences from the following paragraph.
17. The scheme of the provisions pertaining to admissions/
confessions under the Evidence Act (spelt out in Sections 17 to 31) F
makes admissions/confessions admissible (even though they are
rebuttable) because the author of the statement acknowledges a
fact to his own detriment. This is based on the simple logic (noticed
above), that no individual would acknowledge his/her liability/
culpability unless true. We shall determine the answer to the first G
question, by keeping in mind the basis on which, admissibility of
admissions/confessions is founded. And also, whether confessions
in this case (made to the witnesses at serial nos. 64 to 66) have
been expressly rendered inadmissible, by the provisions of the
Evidence Act, as is the case set up by the appellant.
H
158 SUPREME COURT REPORTS (2013) 5 S.C.R.

A 18. An examination of the provisions of the Evidence Act would
reveal, that only such admissions/confessions are admissible as
can be stated to have been made without any coercion, threat or
promise. Reference in this regard may be made to Section 24 of
the Evidence Act which provides, that a confession made by an
B accused person is irrelevant in a criminal proceeding, if such
confession has been caused by inducement, threat or promise.
Section 24 aforesaid, is being reproduced below:-
"24. Confession by inducement, threat or promise
when irrelevant in criminal proceeding -
c A confession made by an accused person is irrelevant
in a criminal proceeding, if the making of the
conf!3ssion appears to the Court to have been caused
by any inducement, threat or promise, having reference
to the charge against the accused person, proceeding
D from a person in authority and sufficient, in the opinion
of the Court, to give the accused person grounds, which
would appear to him reasonable, for supposing that by
making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceeding
-E against him."
Sections 25 and 26 of the Evidence Act exclude, from the realm of
admissibility, confessions made before a police officer or while in
police custody. There can be no doubt, that the logic contained in
the rule enunciated in Sections 25 and 26 is founded on the same
F basis/truth out of which Section 24 of the Evidence Act emerges.
That a confession should be uninfluenced, voluntary and fair. And
since it may not be possible to presume, that admissions/
confessions are uninfluenced, voluntary and fair, i.e., without
coercion, threat or promise, if made to a police officer, or while in
G police custody, the same are rendered inadmissible. Sections 25
and 26 aforesaid, are being reproduced below:-
"25. Confession to police officer not to be proved-
No confession made to police officer shall be proved
as against a person accused of any offence.
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 159
. VAKIL ANSARI [JAGblSH SINGH KHEHAR, J.]
26. Confession by accused while in custody of police A
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 ofa Magistrate, shall be proved
as against such person. B
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 C
of Criminal Procedure, 1882 (10 of 1882)."
There is, therefore, a common thread in the scheme of admissibility
of admissions/confessions under the Evidence Act, nam~ly, that the
admission/confession is admissible only as against the person who
had. made such admission/confession. Naturally, it would be D
inappropriate to implicate a person on the basis of a statement made
· by another. Therefore, the next logical conclusion, that the person
. who has made the admission/confession (or at whose behest, or
on whose behalf it is made), should be a party to the proceeding
. because that is the only way a confession ean be used agai_nst him. E
Referenee can be ma.de tosome provisions of the Evidence Act
which fully support the above conclusions. Section 24 of the
Evidence f.ct leads to such a conclusion. Under Section 24, a
con{ession made "by an accused person", is rendered irrelevant
"against the accused person", in the circumstances referred to F
above. Likewise, Section 25 of the Evidence Act contemplates, that
a confession made to a police officer cannot be proved "as against
a person accused of any offence". Leading to the inference, that a
confession is permissible/admissible only as against the person
who has made it, unless the same is rendered inadmissible under G
·some express provision. Under Section 26 of the Evidence Act, a
·confession made by a person while in custody of the police, cannot
"be proved as against such person" (unless it falls within the
exception cohtemp@ted by the said Section itself). The gamut of
t~e bar contemptatecicund¢r Sections 25 and 26 of the Evidence H
•

160 SUPREME COURT REPORTS [2013] 5 S.C.R

A Act, is however marginally limited by way of a proviso thereto,
recorded in Section 27 of the Evidence Act. Thereunder, a
confession has been made admissible, to the extent of facts
"discovered" on the basis of such confession (this aspect, is not
relevant for the present case). The scheme of the provisions
B pertaining to admissions/confessions depicts a one way traffic.
Such statements are admissible only as against the author thereof.
19. It is, therefore clear, that an admission/confession can be
used only as against the person who has made the same. The
admissibility of the eonfessions made by Sadiq lsrar Shaikh, Arif
c Badruddin Shaikh and Ansar Ahmad Badshah need to be viewed
in terms of the deliberations recorded above. The admissibility of
confessions which have been made by the accused (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, in
Special Case no. 4 of 2009) who are not the accused in Special
0 Case no. 21 of 2006, will lead to the clear conclusion, that they are
inaclmissible as admissions/confessions under the provisions of
the Evidence Act. Had those persons who had made these
confessions, been accused in Special Case no. 21 of 2006,
certainly the witnesses at serial nos. 64 to 66 could have been
produced to substantiate the same (subject to the same being
E otherwise permissible). Therefore, we have no doubt, that evidence
of confessional statements recorded before the witnesses at serial
nos. 64 to 66 would be impermissible, within the scheme of
admissions/confessions contained in the Evidence Act.
F 20. The issue in hand can also be examined frorn another
perspective, though on the same reasoning. Ordinarily, as already
noticed hereinabove, a confessional statement is admissible only
as against an accused who has made it. There is only oneexception
to the aforesaid rule, wherein it is permissible to use a confessional
statement, even against person(s) other than the one who had made
G it. The aforesaid exception has been provided for in Section 30 of
the Evidence Act, which is being extracted hereunder:-
"30. Consideration of proved confession affecting
person making it and others jointly under trial for
same offence-
H
STATE OF MAHARASHTRAv. KAMALAHMED MOHAMMED 161
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
When more persons than one are being tried jointly for A
the same offence, and a confession made by one of
such persons affecting himself and some other of such
perso·ns is proved, the Court may tal<e into
consideration.such confession as against such other
person as well as against the person who r.nakes such B
confession.
Illustrations
(a) A and Bare jointly tried for the murder of C. It is proved
that. A said - "B and I murdered C". The Court may
consider the effect of this qonfession as against B. C
(b) A is on his trial for the murder of C. There is evidence
to show that C was murdered by A and B, and that B
·said, "A and I murdered C".
This statement may not be taken into consideration by o
the Court against A, as Bis not being jointly tried."
As is evident ·from a perusal of Section 30 extracted above, a
confessional statement can be used even against a co-accused.
For such admissibility it is imperative, that the person making the
confession besides implicating him~elf, also implicates others who E
are being jointly tried with him. In that situation alone, such a
confessional statement is relevant even- against the others ·
implicated. Insofar as the present controversy is concerned, the
substantive provision of Section 30 of the Evidence Act has clearly
no applicability because Sadiq lsrar Shaikh, Arif Badruddin Shaikh F
and Ansar Ahm~d Badshah have not implicated any of the accused-
respondents herein. The importance of Section 30 of the Evidence
Act, insofar as the present controversy is concerned, emerges from
illustration (b) thereunder, which substantiates to the hilt one of the
conclusions already drawn by us above. Illustration (b) leaves no G
room for any doubt, that unless the person who has made a
confessional statement .is an accused in a case, the confessional
statement made by him is not relevant. None of the accused in
Special Case no. 4 of 2009 is an accused in Special Case no. 21
of 2006. As such, rn terms of iHustration (b) under Section 30 of the
H
162 SUPREME COURT REPORTS [20~3] 5 S.C.R.

A Evidence Act, we are of the view, that the confessional statement
made by the accused in $pecial Case no: 4 of 2009, cannot be
proved as a confessional statement, in Special Case no. 21 of 2006.
This conclusion has been recorded by us, on the admitted position,
that the accused in Special Case no. 4 of 2009 are different from
B the accused in Special Case no. 21 of 2006. And further because,
Special Case no. 4 of 2009 is not being jointly tried with Special
Case no. 21 of 2006. Therefore, even though Section 30 is not
strictly relevant, insofar as the present controversy is concerned, yet
the principle of admissibility, conclusively emerging from illustration
c (b) under Section 30 of the Evidence Act, persuades us to add the
same to the underlying common thread, that finds place in the
provisions of the Evidence Act, pettaining to admissions/
confessions. That, an admission/confession is admissible only as
against the person who has made it.
D 21. We have already recorded above, the basis for making a
confessional statement admissible. Namely, human con~uct per se
restrains an individual from accepting any kind of liability or
implication~ When such liability and/or implication is acknowledged
by the individual as against himself, the provisions of the Evidence
E Act make such confessional statements admissible. Additionally,
since a confessional statEilment is to be used principally as against
the person making it, the maker of the confession will have an
· opportunity to contest the same under Section 31 of the Evidence
Act, not only by procfucing independent evidence therefor, but also,
F because he will have an opportunity to contest the veracity of the
said confessional statement, by effectively cross-examining the
witness produced to substantiate the same. Such an opportunity,
would also be available to all other co-accused who would be
confronted with a confessional statement made by an accused
G against them (as in Section 30 of the Evidence Act), as they too
would have an opportunity to contest the confessional statement
made by the accused, in the same manner as the author of the
confession. Illustration (b) under Section 30 of the Evidence Act
c0ntemplates a situation wherein the author of the confessional
statement is not a co-accused. Illustration (b) renders such
H co_nfessional statements inadmissible. There is, it maybe noticed,
STATE OF MAHARASHTRA v. ~MALAHMED MOHAMMED 163
VAKILANSARl[JAGDJSH SINGH KHEfiAR, J.]

no room for testing the veracity of the said;ci:>nfessional statement, A
.either at the hands of the pel"Son who made it, or by the person
againstwhom it is made. For adopting ill1:1stration (b) under Section
30 to the reasoning recorded above, the same be ~ead as under;- ..· •
"... This statement may not be taken into consideration by the .
court againstA (the accuse.d facing trial), as B (the person whO" ~
. .
· made the confession)
. .
is not being jointly tried." · ·
Illustration (b) makes such.a confessional statement inadmissible
. for the sole reason, thatthe person who made the confession, is
1,1ot a co-aecused in the case.Again, the underlying principle brought .
out thtougli illustration (b) under Section 30 of the Evidence Act is, C·
that a confessional statement is relevant only and .only, if the author· .
of c6nfessio~at statement himseif is an accused in a case, where
tlje confession.al statement is being proved, In the present
··controversy, the ai.rthors of the confessional statements (Sadiqlsrar
·Shaikh;Arif.Badruddin SJ:taikh arid ArisarAhmad Badshah) are not D
am6ngstthe accused in Special Case no, 21·of2006. The
.. confessional st~tements niadeby them, would therefore be
· inadmissible (as admissions/confe~sions)Jn the present case ·
· (Special Case no. 21· of2006); as ltie situation in the present case
is exactly th~'same as has beeri sought to be explained.through E
illus.tration (b) under Section 30 of the Evidence Act.
22: it is ·also p"bssibl~. to determine the admissibility of the
statements of the accused (Sadiq lsrar Shaikh, Arif Badruddin
Shaikh and Arisar Ahmad Badshah) made to the witnesses at serial
nos. 64 to· 66 independently of the conclusions drawn in the F.
foregoing paragraphs.The.instant determination is being recorded
by us, again by p·lacing reliance on Sections 25 and 26 of the
Evidence Act. As already noticed here)nabove, Section 25 m~kes·
a confessional statement made to a police officer inadmissible
against "a person accused of any offence''. Likewise, a .G ·
confess.ion.al statemenfm;:i(:le while·in the custo.dy-Of police cannot ..
as
be proved against."ttie peri~n making such confession"u.nder
·-section 26 _of ttie Ev\dence Act. It is ru>body's/c:;ase, thattt-ie iristant
. co.nfessionalsfa.!~flie!ltS made by the accused in Special Case n().
4 of 20Q!Jate beingproyed to substantiate the "discovery" of facts H
164 SUPREME COURT REPORTS [2013] 5 S.C.R.

A emerging out of such confessional statements. In the aforesaid view
of the matter, the exception to Sections 25 and 26 of the Evidence
Att contemplated under Section 27 thereof,. would a!so not come
into play. Since admittedly the confessional statements, which are
sought to be substantiated at the behest of the accusep-
B respondents, were made by the accused (Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad eadshah) in Special Case
no. 4 of 2009, to different "police officers" (all holding the rank of
Deputy Cqmmissioners of Police), we are satisfied, that the said
confessional statements are inadmissible under Sections 25 and
c 26 of the Eviden.ce Act.
23. The issue of admissibility of the confessional statements
made by Sadiq lsrar Shaikh, Arif Badruddin Shaikh. and Ansar
Ahmad Badshah before the witne~ses at serial nos. 64to 66, needs
to·be examined from yet another perspective. Learned counsel for
D the respondents were suc6essfulin persuading the High Court, that
a confessional st~tement made by an accused in one case, could
be used in another case as well. In this behalf, the respondents had
placed reliance on the decision rendered by this Court in State of
Gujarat Vs. Mohammed Atik, AIR 1998 SC 1686. In the aforesaid
E controversy, the. following question, which was framed by the trial
Court, had come up for considerati?n before this Court:- .
'The question therefore is whether the prosecution be permitted
. to introduce an.d prove the confessional statement of an .
C3CCused, alleged to have been made during the investigation
F of another offence committed on a different date, during the
triaf of that accused in another crime."
While answering the question extracted above, this Court first
examined whether the confession relied upon, had been rec:Orded
in accordance with the provisions of.the Terrorist and Disruptive
G Activities (Prevention) Act, 1987 (hereinafter referred to as, the
TADA). Having first determined, that the confessional statement
under reference had been validly recorded under the TADA, this
Court recorded the..followirig conclusion in answer to the question
framed by the trial Court:-
H "We have, therefore, absolutely no doubt that a confession, if
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 165
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
usable under Section 15 of the TADA, would not become A
unusable merely because the case is different or the crime is
different. If the confession covers that different crime it would
be a relevant item of evidence in the case in which that crime·
.
is under trial and it would then become admissibie in the case;"
Based on the conclusion drawn in State of Gujarat Vs. Mohammed B
Atik (supra), the t-Jigh Court accepted the prayer made by the
respondents, that the confessional statements made by the
accused in Special Case no. 4 of 2009, would be admissible in
· Special Case no. 21 of 2006. The instant legal position is sought
to be reiterated before us by the learned counsel representing the C
accused-respondents. ·
24. We have given our thoughtful consideration to the
conclusions drawn by the High Court on the basis of the decision
in State of Gujarat Vs. Mohammed Atik (supra). Before drawing
any conclusion one way or the other, it would be relevant to notice, D
that in accepting the admissibility of the confessional statement.in
one case as permissible in another case, reliance was placed by
this Court on Section 15 of the TADA. Section 15 of the TADA is
being extracted hereunder:-
"Section 15 -.Certain confessions made to Police Officers to · E
be taken into consideration-
(1) No.twithstanding anything in the Code or in the Indian
Evidence Act, 1872, but subject lo the provisions of this
section, a confession made by a person before a police
F
officer not lower in rank than a Superintendent of police
and recorded by such police officer either in writing or
on any mechanical device like cassettes, tapes or
·sound tracks from out of which sounds or images can
be reproduced, shall be admissible in the trial of such.
person or co-accused, abettor or conspirato~ for an G
offence under this ACt or rules made thereunder:
Provided that co-accused, abettor or conspirator is
charged and tried in the same case together with the
accused.
H
166 SUPREME COURT REPORTS [2013] 5 S.C.R.

A (2) The police officer shall, before recording any
confession under subsection (1 ), explain to the person
making it that he is not bound to make a confession
and that, if he does so, it may be used as evidence
against him and such police officer shall not record any
B such confession unless upon questioning the person
making it, he has reason to believe that it is being made
voluntarily." · · ·
Th.ere is no room for any doubt, that Section 1q of the TADA .
expressly makes such confessional.statement made by a. person
C ·admissible not only againstttie person who has n:iade it, ·but also
as against others implicated therein' subject to the 'condition' that
the person who has made the confession, and the· others implicated ..
(the co-accused - abettor or conspirator) are being "... tried in the
same case together... ". Therefore, it is necessary for 1,1s first to
D specifically highlight, that the admissibility of the aforesaid
confessional statements was determined not with reference to the
Evidence Act, but under _Section 15 of the TADA. ·what ·the High
Court, as also the respondents before us have overloo~ed is, that
the proviso und~r.sub-Section (1) of Section 15 of the TADA
E .expressly postulates, that a confessional statement made by an
· accused as 'against himself, as also a do-accusec! {abettor or
conspirator) is admissible, provided that, the co~accused (abettor
or conspirator) is being tried in the same case together witll the
accuseid who had made the conf~ssion. The proviso under sub-
·seetion (1) of Section 15 of the TADA is founded on"fhe same
F principle, which we have referred to hereinabove, while anal>'Z'.ing ·.
Section 30 of the Evideric.e Act.· The link .for determining. ·
admissibility is not case specific. A con_fessional statemerit_ may
be admissible in any numberofcpses. Ornone.atall. To determine
ad01issibility the test is, that the author of the confessiqnal statement . .
G . must be an accused; in the case (in whiGh the c6nfe8sional
statement is admissible). And in ·case it is to be used against
persons other than the author of the confessional statemen(the11 ··
besides the author; such other persons must all be co-accused in · ·
the case. It is therefore apparent, that the confessional statement
H made by an accused was held to be refevant in State of Guj~rat
STATE OF MAHARASHTRAv. KAMALAHMEDMOHAMMED 167
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
Vs.· Mohammed Atik (supra) under Section 15 of the TADA. on · A
the fulfilment of the conditiqn, that the same was recorded in
consonance with the prqvisions of the said Act; as also; the
satisfaction of the ingredients contained in the.proviso undersub-
Section (1) of Section 15 of the TADA, namely, the person who had
made the confession, and the others implicated were facing ajoint B
· . trial.fhejudgmerit rendered by this Court in State ofGujarat Vs.
M<;>hatnrned Atik (supra)· has been incorrectly relied upon while
appfying the conclusions rendered iri the same to the controversy
in hand, as the confessional statements made by Sadiq lsrar
Shaikh, A~ifBadruddln ShaikhandAnsar AhmadBadsh~h do. not c
implicate the accused·responderits in Special Ca~ no. 21 of 2006,
nora(~th-e.-.~~ccusea-respon.derits herein being jointly tried with the
persons ...mo had made the confessiorialstatements. Reliance has
not been placed.by the accused-resporldents, on any provision
underthe MCOCA. to cia irn admissibility of the witnesses at serial
0
nos. 63 to 66 as defence witnesses. Nor have the learned counsel
for.the accused-respondents invited our attention to any other
special statute applicable hereto, whereunder such a course of
... action, in the manner·cfaimed by the responclents, woulcl be
admissible. Weare,therefore,ofthexiewthaUhe~ighCourterrecJ E .
in relying on the judgmerifrendere# by this Court:in State dfGujtjraf ·
V.s. Mohamme"€f Atilj(slJp,ta) wnfle·cieterrrtining the co.ntroversy in .
hand. · · ·.· · · · · · · ·· · · · · ·

•.. . .'25. yve shall no~·~ile$avourtc»ctelve tritbttte S'econd question, ..
w~e~~~Jfteconfesstdrla1;~tat~m~tS,r~fc),~~iectbyth~·thre~ f\9quseg . ·F..
(S~qiq~J~~ar' Shaikh. Arif:BadruddlnfaShaikh'· an(f;'Ansar Attrnad ·
. i3~dshah);· iri Sped~LCase ;nb. 4.ofiri09, beiof~: ther\vitriesses at:
. serla1i1os: 64 tb66, ~·i~·~~missibt~ in SpetlaICas~ ~6: 21·of 200B,
.by' prqdu¢irig th¢persori$'l?efore whcin1 the 'cor:ifessionai stafeir\ents.
w~r~-~a<;f~,(th;>.:'.ltnes~~$ at serial nos . 6~ to·6~>).as ·defence_ . G
wt~ss~s:. under the Evidence· Acton the instant a.$pect of the
matte-r; ttie:submissioii.of the aecw~ed~resporident~ has been, that
the same.satisfy the test ofpeing "relevantfacts''.underSections6 ·
and t1 of the Evidence' Act We;stian r:1qwrecordourconclusion·s
separately for ea.ch.of the a.t?re$~itt provisions.'. ··
H
168 SUPREME COURT REPORTS [2013) 5 S.C.R.

A 26. Are the statements made by the accused (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in
Special Case no. 4 of 2009, to the witnesses at serial nos. 64 tp
66, admissible u_nder Section 6 of the Evidence Act as "relevant
facts"? The accused-respondents emphatically claim that they are.
B The contention of the learned counsel for the appellant is, however,
that the evidence of .three police officers (all holding the rank of
Deputy Commissioners of Police) and the Additional Chief
Secretary (Home Department) relating to confessions made by·
accused in Special Case No.4 of 2009 is hit by the "hearsay rule".
c In this behalf it is pointed out, that the blasts in question took place
on 11.7.2006 while the confessions were recorded in October,
2008. It is therefore pointed out, that the confessional statements .
were recorded after two years of the occurrence of the fact in issue.
Section 6 of the Evidence Act, according to learned counsel,
partially lifts the ban on tile "hearsay rule", ifthe evidence which is
0
sought to be produced, can be said to be so connected to a "fact
in issue" as to fl'rm a·part of it. It is contended; that the "fact in issue",
is the bomb bl~sts that took place in local trains of Mumbai Suburban
Railways, on 11.7.2006. The confessional statements recorded
E after two years cannot be said to be a part of the said "fact in issue",
so connected to it, as to form a part of it. The evidence of police
officers about the confessions made by the accused in Special
·case No.4 of 2009 is not, according to learned counsel, evidence
relating to "facts in issue", but pertai!1 to "collateral facts" ..This
evidence of a collateral fact, it is contended, can be brought in as
F evidence only if it is "a relevant fact" under some provision of the
Evidence Act. Such evidence of the police officers, according to
learned counsel for. the appellant, is not relevant under any
provisions of the Evidence Act, ce.rtainly riot under Section 6 thereof.
27. Such evidence, according to learned counsel, is barred
G by the "rule of hearsay". According to learned counsel, the ban on
hearsay evidence does not extend to the rule of "res gestae". It is
however submitted, that the rule of "res gestae" is not attracted in
the present case, as there is no live link between the occurre.Ffce of
bomb blasts on 11.7.2006, and the recording of confessional
H statements two years thereafter. If the accused persons had made· ·
STATE OF MAHARASHTRA v. KAMALAHMED MOHAMMED 169
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
such confessional statements immediately after the occurrence of A
the bomb blasts, as a natural reaction in immediate proximity of the
occurrence, so as to constitute a part of the occurrence itseif, there
may have been a live link between the blasts and the confessional
statements, and such confessional statements, may have been
perceived as a part of the same, and therefore, may (in such B
eventuality) have been admissible under Section 6 of the Evidence
Act. The statement of the accused in Special Case no. 4 of 2009,
according to learned counsel, cannot for the reasons mentioned
above, be treated as part of the same transaction, as the transaction
of bomb blasts of 11. 7.2006. c
28. In order to substantiate his aforesaid contention, learned
counsel for the appellant placed reliance on the decision rendered
·in Venkateshan v. State, 1997 Cr.LJ 3854,wherein Madras High
Court held, that in a murder case where the accused who had
assaulted the deceased, had made a statement about the assault D
to the brother of the deceased, within half an hour of the act, the
evidence of the brother was held to be "res gestae", and therefore,
admissible under Section 6 of the Evidence Act. It was submitted,
that only such a fact as is so connected to a "fact in issue", so as to
be treated as apart of it, would constitute "res gestae", and would E
not be excludable by the "rule of hearsay". Relevant observatidns
from the aforesaid judgment, which were brought to our notice, are
being extracted hereunder:
"17. The ab9ve. proposition of law has been laid down by
.the Apex Court and the same followed by other Courts. F
We have to see whether there is an interval or time lag
between the act committed by the accused ar:id the
time of statement given to the witnesses and was it a
long one so as to 'give time or opportunity for
fabrication. In the instant case the occurrence took G
place at 11 '.30 p.m., and the statement made by-fhe ·
appellant to P.W. 1 at 12 mid night i.e. half-an~hour
later. In the light of the. facts of this case, it cannot be
stated that there is a long interval so as to given
opportunity for any fabrication. After the occurrence
H
/
c170· ' SUPREME COURTREPORTS [2013]5 S.C.R.
- '·, !, ; ·:·' ;-_-.

A , ' was over, P.W. 2 and P.W. 3 informed to P.w:1 and
immediate41y on receipt of the information rushed to
· the house of the appellant where the appellant was
· ···.found standing near the victim .. Therefore, ;as per
· ·: •illustration (a) to Section 6 of the Evidence Act-
... 0

B "Whatever was.said by the accused to the
. '. ··,
. .wifriess shortly after the occurrenee also would .
.• - • .:i.
form part of the transaction and sci it has to .be .
. considered to be the relevant facts and .
circumstances of the
.. ··- : -· _:'. -~,-- ·.:
case." . .. . ....
- :,;--::: -.-·\·,,.., ~
:c 18. Therefore we hold that the statement made by
__ .-·_

. , ·· ·"~ ·appellant toP.IJIJ.1 imniediately afterttieoccurrence
·.. • 'i ; WithoutanJio'ng time lag would be admissible under .
- _, - ' - ~ ,. • -~- - ,- :· ' • - < • • ' ' • - • • •• •

· · 'Section 6 of the Evidence Act.~ . . . . " •· · · ·. · ·
t·c··- •. ." •.\" ,,. -.~·-,!' -•:.: :.. · '~- . - ·• -· . · ..·.·-<:'.~,;_I!·· ..: . . . f _;'··:_ .-; • .· .. : .
. Reliance was also placed on decision rendered in. Gentela Vijaya
0 :vafdhan Raov. State ofAP,, 1996.(6)SCC'241;wheteili.this
Court held, that the principle of laW embodied in· sectiqri 6 of tlie
. Evideni:eAct;Jseicpressed as ''.res gestae·.~Therule.of'.'res .
is
.,. ,'gestae", ~Wcis'tieid, an exeeption tOthegeneral rule, tnat hearsay·
)· 'evidencei°is "riot admissible, The raticinaj{of making• ce'rtain ·
E • sfalemenis orfacl$ admissible uridersection '6of the Evid~rieeAGt, ·
·it wa:S:polnted -olit.\vas on aci:Oui:if
ofspofoarieity and.immediacy
cifsuch.stafoment orfuct/iri relation to the"factin.issue<And .
.. th,ereaft~j•• StJch facts or Statfiments are.treated as·a part of Iha same .
. 'fraiisaclion;'.ln otliei words;to tie relevant uriderSeCtion 6 of the·
F · Eyid~rice~·Act, such statem~nt' must· fiaiie tie en made
. eoritemporaneously with the.fact.in issue, at least immediately or
fnereupori,
• - • .....
and
.
in conjunction
• ·-'!! . • • .... •- • . -
therewith.
•
If there is an interital
-<• ..... - • •

· . between the-fact in issue, and tbe fact sought to be proved, then
. 'such statementcannot be described as falling in the "res gestae" .
·. G concept Relianee from the aforesaid judgment was placed ori the
following observations: .. - ·. ' .• . .• . . . ·.
;, - - l . · ..• ''. • . . .• . ' • . .
- . _,. "15. · The]Jrinciple ·or law embodied' in Section 6 of the
.· Evicferice AC! is usu~ilyknown as th;:i rule of reS gestae .•
. . reCognized iri English Law; The essence of the doctrine
. is that factY'hlcti; ttiqugft riot in issue, is so connect~d

~----·-----
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 171
. VAKIL ANSARI [JAGDISH SINGH KHEHAR, J.]

with the fact in issue "as to form part of the same A
transaction" becomes relevant by itself. This rule is,
roughly speaking, an exception to the general rule that
hearsay evidence is not admissible. The rationale in
making certain statement or fact adrr!issible uAd:er
Section 6 of tne Evidence Act is on aceounfof the B
spontaneity and immediacy otsuch statement or fact
in refation to the fact in issue.·Butit is necessary that
such fact.or statement mu.s.t b.e part of the same
.· transaCtiori. In other words, such statement must have
·been made contemporaneous with the acts which c
constitute the offence or at least immediately thereafter.
Butif there was an interval, however slight it may be,
which was sufficient enough for fabrication then the
statement is not part of res gestae. In R. v.. Lillyman
(1896) 2 Q.B. 167 a statement made by a raped 0
woman after the ravishment was held to be not part of
the res gestae on account of some interval of time
lapsing l;>etween the act of rape and the making of the
.statement Privy Council while considering the extent
upto wliiCh this rule of res gestae can be allowed as E
an exemption to the inhibition against near say
evidence, has observed in Teperv. R. (1952) 2 All E.R.
447, thus: ·
"The rule that in a criminal trial hearsay evidence
is admissible if it forms part of the res gestae is F
based on the propositions that the human
utterance is both a fact and a means of
communication and that human action may be
so interwoven with words that the significance
of the action cannot be understood without the
correlative words and the.dissociation of the G
words from the action would impede the
discovery of the truth. ltis ess~i:itial thatthewords
soughtto be proved by .tiearsay strouldbe, if not
absolutely contemporaneous with the action or .
event, atleast so clearly associated with it that H
172 SUPREME COURT REPORTS [2013) 5 S.C.R.

A they are part of the thing being done, and so an
item or part of the real evidence and not merely
a reported statement."
The correct-legal position stated above needs no further
elucidation."
B 29. We have examined the issue of admissibility of the
deposition of the witnesses at serial nos. 63 to 66 with reference to
the reason for which they are desired to be summoned as defence
witnesses. We may first extract Section 6 of the Evidence Act
hereunder:
c "6. Relevancy of facts forming part of same transaction
- Facts which, though not in issue, are so connected with a fact
in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different
times and places.
D
Illustrations
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-slanders
at the beating, or so shortly before or after is as to from
E part of the transaction, is a relevant.fact.
(b) . A is accused of waging war against the Government
of India by taking part in an armed insurrection in which
property is destroyed, troops are attacked and goals
are broken open. The occurrence of these facts is
F relevant, as forming part of the general transaction,
though Amay not have been pre~ent at all of them.
(c) A sues B for a libel contained in a letter forming part of
a correspondence. Letters between the parties relating
to the subject out of which the libel arose, and forming
G part of the corresppndence in which it is ¢ohtained, are
relevant facts, though they do not contain the libel itself.
(d) The question is whether certain goods ordered from
B were delivered to A. the goods were delivered to
several intermediate persons successively, Each
H delivery is a relevant fact."
STATE: OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 173
VAKIL ANSARI [JAGDISH SINGH KHEHAR, J.]
In our considered view, the test to determine admissibility under the A
rule of "res gestae" is embodied in words "are so connected with
a fact in issue as to form a part of the same transaction". It is
therefore, that for describing the concept of "res gestae", one would
need to examine, whether the fact is such as can be described by
use of words/phrases such as, contemporaneously arising out of B
the occurrence, actions having a live link to the fact, acts perceived
as a part of the occurrence, exclamations (of hurt, seeking help, of
disbelief, of cautioning, and the like) arising out of the fact,
spontaneous reactions to a fact, and the like. It is difficult for ys to
describe illustration (a) under Section 6 of the Evidence Act, c
specially in conjunction with the words "are so connected with a fact
in issue as to form a part of the same transaction", in a manner
differently from the approach characterized above. We are satisfied,
that the confessional statements recorded by the accused (Sadiq
lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) 0
in Special Case no. 4 of 2009 to the witnesses at serial nos. 63 to
66 do not satisfy the ingredients of the rule of "res gestae"
incorporated in Section 6 of the Evidence Act. This is so because
the statements made by Sadiq lsrar Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah, cannot be said to have
contemporaneously arisen along with the bomb blasts of 11.7.2006, E
which is the "fact in issue". The confessional statements of the
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) in Special Case no. 4 of 2009 cannot be
perceived to be part of the said "fact in issue". The st::itements made
by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad F
Badshah are most certainly not, spontaneous reactions.arising out
of the bomb blasts of·11. 7.2006. The statements under reference
are· not reactions of the kind referred to above. Our above inferences
are fully substantiated, if examined in conjunction with the legislative
illustrations incorporated under Section 6 of the Evidence Act. G
30. It is not necessary for us to further examine, while dealing
with the present controversy, whether a confessional statement of
an occurrence could/would fall within the realm/expanse of the rule
of "res gestae", in a given exigency. We, therefore, refrain from
recording any conclusions thereon, while dealing with the instant H
174 SUPREME COURT REPORTS [2013) 5 S.C.R.

. A controversy,. because .
such anissue does riot arise herein.·
'• -- '

31. We shall now endeavour to determine, whether the
statements made by- the accused {Sadiq lsrar Shaikh·, Arif
·BadrCJddin Shaikh and Arisar Ahrtiad Badshah) in Special Case
no. 4 of 2009, to the Witnesses at serial nos. 64 to 66 are admissible
B through the said witnesses (at serial nos. 64 to 66) under Section
11 of the Evidence Act. It is pointed out by learned counsel
representing the appellant, that in law there is a clear distinction ·
between the "existence of a fact", .
and ''a statement
.
as to' its ·
existence" .The evidence of the accused persons in Special Case
C no.4 of 2009 b.efore the court admitting their guilt would be,
aceording to learned counsel; evidence about "the existence of the
fact" i.e., their culpability and/or responsibility for the .bomb blasts
of 11. 7.2006. The evidence of the police officers, it was submitted,
is not about. the existence of such fact, but is about recording "a
o statement as to itseXistence". It is therefore clear, according·to
learned counsel, that the evidence of the police officers would not .
be permissible under Section 11 of the Evidence Act, because the
· evidenee of the witnesses at serial nos. 63 to 66 fall in the latter
.category of "a stafement about the existence of a fact". Moreover,
E it is contended, that it would be clearly hit by the "rule of hearsay''.
32. The second contention advanced on behalf of the learned
counsel for the petitioner was aimed at detennining the relevance
of the witnesses at serial nos. 63 to 66, with reference to Section
11 of the Evidence Act. According to the learned counsel for the
F appellant, Section 11 makes the "existence of facts" relevant and
admissible, and not "a statement as to.such existence". For this
learned 'counsel for the appellant placed reliance on Munna Lal v.
Kameshwari, AIR 1929 Oudh 113. In this case the question was,
whether the defendant no.3 was a major when he executed the
G disputed mortgage deed. The evidence sought to be given
comprised of two documents i.e., Exhibit A-10 and A-11. These
documents were held to be inadmissible by the trial court. Exhibit
a
A-10 was the c:;ertified copy, of statement made by defehdantno,3
in the Revenue Court on 16.2:1925; and Exhibit A-11 was the
H statement Of the mother 6fdefendarit no: 3, tJefore the Revenue
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 175
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
Court, on the same day. In both the statements the age of defendant A
no. 3 was stated as 21 years. The High Court held, that these
statements could not be admitted, as they were statements of living
persons, who had not been examined as witnesses in the case. If
they had been examined, their statements might have been
admissible, under the Evidence Act (either in corroboration, or in B
contradiction of the statements so made). Since neither defendant
no. 3, nor the mother of defendant no. 3, were examined as
witnesses, therefore, the statements were considered as not
admissible. The High Court however further held, that both the
persons being living persons, their statements recorded earlier (on c
16.2.1925) could not have been considered admissible under
Section 32(5) of the Evidence Act. The High Court also rejected
the contention, that the aforesaid statements were admissible under
Section 11 of the Evidence Act. The court held, that if the said
statements could also not be admitted under Section 32, then they 0 .
could also not be admitted under Section 11. Learned counsel for
the appellant, placed reliance on the following observations
recorded in the judgment:
"It was contended that two documents which are Exs. A-10 and
A-11 are admissible in evidence and should not have been E
rejected by the learned Additional District Judge as irrelevant
and inadmissible in evidence. Ex.A-10 is a certified copy of a
statement made by defendant 3, the father of the plaintiff-
respondent, in the revenue Court on 16th February 1925. Ex.A-
11 is the statement of the mother of defendant 3 also made in
F
the revenue Court on the same date, i.e., 16th February, 1925.
In both these statements the age of defendant 3 is stated to
have been atthe time of the statements 21 years. We do not
see how any of these statements can be admitted in evidence
since we are of the opinion that they are statements of living G
persons who have not been examined as witnesses in the
case.If they had been examined as such the statements might
have been admissible. under the Evidence Act either in
corroboration of the statement made by them in Court as
witnesses or in contradiction of the statements so made. We,
however, find that neither defendant 3 was put into the witness- H
176 SUPREME COURT REPORTS [2013) 5 S.C.R.

A box, nor was the mother of defendant 3 examined as a witness
in the case. It was also admitted that both the persons being
living persons their statements could not have been
considered to have been admissible under S.32, Cl.(5),
Evidence Act. It was, however, contended by the learned
B counsel for the appellant that these statements were
admissible under S.11, Evidence Act. We are of opinion that
before a fact can be considered to be relevant under S.11 of
the Act it must be shown that it is admissible. It would be absurd
to hold that every fact, which even if it be inadmissible and
c irrelevant, would be admissible under S.11. We are supported
in this view by the observations of their Lordships of the
Allahabad High Court in Bala Ram v. Mahabir Singh, (1912)
34 All.341. An attempt was made in that case, as has been
done in this case, to admit in evidence the deposition made
by a person who though deceased, did not fall within the
D
provisions of S.32, Evidence Act, on the ground that the
provisions of S.11 of the Act would make such evidence
admissible. It was observed by their Lordships that this
argument could not be accepted because if a particular
deposition could not be admitted under the provisions of S.32,
E Evidence Act, it could not be held to be admissible under S.11
of the said Act. We are therefore of opinion that the learned
Additional District Judge was correct in holding that Exs. A-
10 and A-11 which are statements of living persons who have
not been examined as witnesses in this case are inadmissible
F in evidence and cannot be relied upon in proof of the
allegations of the defendants appellants that defendant 3 was
a major at the time when he executed the deed."
In order to substantiate the same contention, reliance was also
G placed on the decision rendered by the Allahabad High Court in
Mt. Naima Khatun v. Basant Singh, AIR 1934 Allahabad 406. It
was submitted, that the High Court had concluded in the aforesaid
judgment, that a statement which is not admissible under Section
32 of the Evidence Act, would also not be admissible under Section
11. And further, that Section 11 makes the "existence of fact"
H admissible, and not "a statement as to its existence". Our attention
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 177
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]

was invited to the following observations recorded in the judgment A
relied upon:
"The deed of adoption was executed by the defendant's
adoptive mother, Rani Bishen Kuer, and bears her signature
in Gurumukhi. The· endorsement of the Sub-Registrar says that
she was a purdanasin lady and admitted the execution and B
completion of the document from behind the purdah of a
wooden door leaf. In this document she refers to the fact of
having adopted the boy, and that he would be the owner of the
entire property of her husband like the begotten son of her
husband. She also states that she had performed the adoption C
ceremonies according to the custom prevailing in her
husband's family, and further states "at present Basant Singh
aforesaid is about one and a half years old." The lady is dead
and cannot now be called. The condition required in the
opening portion of Section 32, Evidence Act, which alone is . D
relied upon for purposes of admissibility, is therefore fulfilled .
. The learned advocate for the respondent strongly argues that
this document falls within Sub-section 5 of Section 32, and that
the statement, inasmuch as it relates to the existence of
relationship by blood and adoption, made by a person having E
a special means of knowledge and at a time when no question
in dispute had arisen, was admissible in evidence. There can
be no doubt that the rule of English Law is particularly strict,
and the admission of hearsay evidence in pedigree cases is
confined to the proof of pedigree and does not apply to proof . F
of the facts which constitute a pedigree, such as birth, death
and marriage, when they have to be proved for other purposes.
In Haines v. Guthrie (1883) 13 Q.B.D. 818 an affidavit filed
by the defendant's father stating the date of the defendant's
birth in an action to which the plaintiff had not been a party was G
held inadmissible as evidence of the age of the defendant in
support of his defence. In India we have Section 32, Evidence
Act, which does not seem to be so strict. It is however clear
that if a statement does not fall within Section 32, it could not
be admissible under Section 11 of the Act: Bela Ram v.
H
178 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Mahabir Singh (1912) 34 All. 341 and Munna Lal v.
Kameshari Dat A.l.R. 1929 Oudh 113. Obviously there is a
difference between the existence of a fact and a statement as
to its existence. Section 11 makes the existence of facts
admissible, and not statements as to such existence, unless
B of course the fact of making that statement is itself a matter in
issue."
Learned counsel for the appellant also placed reliance on
A.PL.S. V.L. Sevugan Chettiar v. Raja Srimathu Muthu Vijaya
Raghunath, AIR 1940 Madras 273, wherein it has been held, that
C Section 11 must be read subject to the other provisions of the Act,
and that, a statement not satisfying the conditions laid down in
Section 32 cannot be admitted under Section 11, merely on the
ground, that if admitted it may probabilise or improbabilise a fact
in issue or a relevant fact. Reference was made to the following
o obser\tations noted therein:
"11. We may here refer to one other set of documents relied
on by the defendants which if admissible, will be very strong
evidence in support of the defendants' case. Exs. 1, 1-a, 4, 5
and 6 are a group of documents relating to plots adjacent to
E the pond marked Neeranikuttai, just to the west 9f the point
marked J-1 in Ex. L. The bearing of these documents on the
present controversy is that in all of them the property dealt with
is described as situate in lluppakkudi. If they are admissible,
they will cearly show that lluppakkudi limits extended even
F further south of the line fixed by the appellate survey officer. The
learned Subordinate Judge has rejected these documents as
irrelevant. Mr. Eajah A'Jyar has strongly contested this view of
the lower Court. He maintained that they must be held to be
admissible under Sections 11 and 13, Evidence Act. The
G decisions referred to in para. 613 of Taylor on Evidence would
support the view that they may be admissible even under
Clause 4 of Section 32, Evidence Act, as statements relating
to a matter of public or general interest, namely village
boundaries. But in view of the observations of their Lordships
of the Judicial Committee in Subramanya Somayaju/u v.
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 179
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
Sethayya (1923) 10 A.LR. Mad. 1 as to the scope of this A
clause, we do not feel ourselves at liberty to follow the English
cases. Mr. Rajah Aiyar contended that the documents may fall
under Clause 3 of Section 32. We are unable to accede to this
contention. As regards Section 11, it seems to us that Section
11 must be read subject to the other provisions of the Act and B
that a statement not satisfying the conditions laid down in
Section 32 cannot be admitted merely on the ground that, if
admitted, it may probabilize or improbabifize a fact in issue
or a relevant fact."
Our attention was also drawn to the decision rendered by the C
Bombay High Court in R.D. Sethna v. Mirza Mahomed Shrazi
(No.4), (1907) 9 Bombay Law Reporter 1047, wherein it was held
as under:
" ..... There is a test, a simple and a sufficient test, which
reasonably applied yields consistent and intelligible results. D
Section 32 imposes restrictions upon the admissibility of
statements made by persons who cannot be brought before
the Court to give their own evidence. The object of those
restrictions and the reason for them are plain. The basic:
principle of legal evidence being that the Court must always E
have the best, it follows that where persons can be, they must
be brought before the Court to tell what they know at first hand.
Their veracity can then be best tested by the art of cross-
examination. Where however witnesses cannot be brought
before the Court, their previous statements are at best indirect F
evidence of a kind that a Court would not, except under
necessity, receive at all. The conditions which when compelled
by necessity to take this evidence or none, are imposed upon
its admissibility plainly aim at affording some guarantee of its
truth. As there is to be no chance of testing the man by cross- G
examination his statement will not be admitted unless it has
been made under conditions which, looking to the ordinary
course of human affairs, raise pretty strong presumptions that
it was a true statement. Thus the whole scope and object of
Section 32 centre upon securing the highest degree of truth
H
180 SUPREME COURT REPORTS [2013] 5 S.C.R.

A possible in the circumstances for the statement. And it follows
that where the person tendering such a statement is indifferent
as to its truth or falsehood there is nothing to bring that section
into play. Briefly the test whether the statement of a person who
is dead or who cannot be found is relevant under Section 11
B and admissible under that section, (presuming of course that
.it is in other respects within the intention of the section) although
it would not be admissible under Section 32 is this. It is
admissible under Section 11 when it is altogether immaterial
whether what the dead man said was true or false, but highly
c material that he did say it. In these circumstances no amount
of cross-examination could alter the fact, if it be a fact that he
did say the thing and if nothing more is needed to bring the
tiling said in under Section 11, then the case is outside Section
32 ......"
o Likewise, while referring to the decision in Nihar Bera v. Kadar Bux
Mohammed, AIR 1923 Calcutta 290, it was submitted, that recitals
(statements made in a document) would not become a part of
evidence, unless the person(s) making the recital(s) is/are brought
before the Court when such a person is alive. In the present case
E also, it was submitted, that the accused in Special Case no.4 of
2009 who had made the confessionar statements, are living
persons, and unless they are examined, there is no question of
accepting their confessional statement. In this behalf, learned
counsel relied upon the following conclusions recorded in the
F aforesaid judgment :
"In the second place, it has been urged.against the judgment
of the Subordinate Judge that he placed reliance upon recitals
in a deed of release executed by Nanu (the son of Kanu and
brother of the two plaintiffs) in favour of the defendant. No doubt
G the fact that Nanu executed a deed of release constitutes a
transaction which is relevant for the purpose of investigation
of the question in controversy. But the recitals in the document
do not become a part of the evidence. They are assertions by
a person who is alive and who might have been brought before
the Court if either of the parties to the suit had so desired. This
H
STATE OF MAHARASHTRA v. KAMALAHMED MOHAMMED 181
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
distinction is frequently overlooked and when a document has A
been admitted in evidence as evidence of a transaction the
parties are often apt to refer to the recitals therein as relevant
evidence."
33. Before dwelling on the issue in hand, it is necessary to
extract herein Section 11 ·of the Evidence Act. The same is B
accordingly reproduced hereunder:-
"11. When facts not otherwise relevant become
relevant· Facts not otherwise relevant, are relevant-
(1) if they are inconsistent with any fact in issue or relevant C
fact;
(2) if by themselves or in connection with other facts they
make the existence or non-existence of any fact in issue
or relevant fact highly probable or improbable.
Illustrations D
(a) The question is, whether A committed a crime at
Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant.
The fact that, near the time when the crime was E
committed, A was at a distance from the place where
it was committed, which would render it highly
improbable, though not impossible, that he committed
it, is relevant.
(b) The question is, whether A committed a crime. F
The circumstances are such that the crime must have
,been committed either by A, B, C or D. Every fact Which
shows that the crime could have been committed by
no one else and that it was not committed by either B,
C or D is relevant." G
A perusal of Section 11 aforesaid reveals, that facts inconsistent
with "facts in issue" are included in the realm of relevance. Likewise,
facts which make the existence or non-existence of a "fact in issue"
highly probable or improbable, have also been included in the realm
of relevance. Insofar as the present controversy is concerned, it is H
182 SUPREME COURT REPORTS [2013] 5 S.C.R.

A the contention of the learned counsel for the accused-respondents,
that the confessional statements made by the accused (Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in
Special Case no. 4 of 2009, to the witnesses at serial nos. 64 to
66, would positively bring the said confessional statements within
B the realm of relevance, since the said confessions would be clearly
inconsistent with the culpability of the accused in Special Case no.
21 of 2006. It was submitted at the behest of the accused-
respondents, that even if there was some degree of variance in
assuming the aforesaid inference, the confessional statements
c made by the accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah) in Special Case no. 4 of 2009 would
go a long way, to make the existence of culpability of the accused-
respondents in Special Case no. 21 of 2006 highly improbable.
Thus viewed, it was strongly canvassed at the hands of the learned
counsel representing the accused-respondents, that the High Court
0
was fully justified in allowing the accused-respondents to
substantiate the confessional statements made by the accused
(Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah) in Special Case no. 4 of 2009 through the witnesses at
serial nos. 63 to 66.
E
34. We have given our thoughtful consideration to the plea
raised at the hands of the accused-respondents under Section 11
of the Evidence Act. There can certainly be no doubt about the
relevance of the confessional statements made by the accused
F (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah) in Special Case no. 4 of 2009, as they would clearly
demonstrate the inconsistency of the case set up by the prosecution
against the accused-respondents in Special Case no. 21 of 2006.
In such an eventuality, there would also be no doubt, that the
prosecution case would be rendered highly improbable. The only
G serious concern however, to our mind, is whether the said evidence
is admissible, as is the case set up by the accused-respondents,
through the witnesses at serial nos. 63 to 66. Insofar as the instant
aspect of the matter is concerned, reference may be made to
Section 60 of the Evidence Act, which is being extracted
H hereunder:-
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 183
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
"60. Oral Evidence must be direct - Oral evidence must, in A
all cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the
B
evidence of a witness who says he heard it;
If it refers to a fact which could be perceived. by any
other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that
sense or in that manner;
c
If it refers to an opinion or to the grounds in which that
opinion is held, it must be the evidence of the person
who holds that opinion on those grounds:
Provided that the opinion of experts expressed in any
treatise commonly offered for sale, and the grounds on D
which such opinions are held, may be proved by the
production of such treatise if the author is dead or
cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an
amount of delay or expense which the Court regards E
as unreasonable: .
Provided also that, if oral evidence refers to the
existence or condition of any material thing other than
a document, the Court may, if it thinks fit, require the
production of such material thing for its inspection." F
A perusal of Section 60 aforementioned leaves no room for any
doubt, that oral evidence in respect of a fact, must be of a primary
nature. It would be evidence of a primary nature, if it satisfies the
state of facts described as "direct" in Section 60 extrac~ed above.
Illustrative instances of direct/primary evidence; are expressed in G
Section 60 itself. When it pertains to a fact which can be seen, it
must be the statement of the person who has himself seen it; if when
it refers to a fact which can be perceived, it must be the statement
of the person who has perceived it; and when it pertains to an
opinion (or the basis on which that opinion has been arrived at), it H
184 SUPREME COURT REPORTS [2013] 5 S.C.R.

A must be the statement of the person who has himself arrived at such
opinion. Stated differently, oral evidenee cannot be hearsay, for that
would be indirect/secondary evidence of the fact in issue (or the
relevant fact).
35. In order to determine the truthfulness of the confessional
B statements which are sought to be relied upon by the accused-
respondents, it is inevitable in terms of the mandate of Section 60
of the Evidence Act, that the accused (Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case
no. 4 of 2009, who had made the said confessional statements,
c must themselves depose before a Court for effective reliance,
consequent upon the relevance thereof having been affirmed by us
under Section 11 of the Evidence Act. We affirm the fine distinction
made by the learned counsel for the accused-respondents in
pointing out that the confessional statements made by Sadiq lsrar
o Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, would
only constitute "a statement as to the existence of such fact". That
would not be direct/primary evidence. The same would clearly fall
in the mischief of the "hearsay rule". In order to be relevant under
Section 11 of the Evidence Act, such statement ought to be "a
E statement about the existence of a fact", and not "a statement as
to its existence". In our considered view, therefore, whilst it is
permissible to the accused-respondents to rely on the confessional
statements made by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
Ansar Ahmad Badshah, it is open to them to do so only through the
persons who had made the confessional statements. By following
F the mandate contained in Section 60 of the Evidence Act, it is not
open to the accused-respondents, in view of the expressed bar
contained in Section 60 of the Evidence Act, to prove the
confessional statements through the witnesses at serial nos. 63 to
66. In the aforesaid view of the matter, it is not possible for us to
G accept the plea advanced at the hands of the learned counsel for
the accused-respondents, that they should be permitted to prove
the confessional statements through the witnesses at serial nos. 63
to66.
36. It is necessary in connection with the conclusion drawn by
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 185
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
us hereinabove, to deal with the submission advanced at the hands A
of the lea med counsel for the accused-respondents, even on the
touchstone of Section 32 of the Evidence Act. Section 32 aforesaid
is being extracted hereunder:-
"32. Cases in which .statement of relevant fact by person
who is dead or cannot be found, etc., is relevant - B
Statements, written or verbal, of relevant facts made by a
·person who is dead, or who cannot be found, or who has
.become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the C
Court unreasonable, are themselves relevant facts in the
following cases:-
(1) when it relates to cause of death ·When the
statement is made by a person as to the cause of his
death, or as to any of the circumstances of the D
transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question.
Such statements are relevant whether the person who
made them was or was not, at the time when they were E
made, under expectation of death, and whatever may
be the nature of the proceeding in which the cause of
his death comes into question.
(2) or is made in course of business - When the
F
statement was made by such person in the ordinary
course of business, and in particular when it consists·
of any entry or memorandum made by him in books
kept in the ordinary course of business, or in the
discharge of professional duty; or of an
acknowledgement written or signed by him of the G
receipt of money, goods, securities or property of any
kind; or of a document used in commerce written or
signed by him; or of the date of a letter or other
document usually dated, written or signed by him.
(3) or against interest of maker~ When the statement H
186 SUPREME COURT REPORTS [2013) 5 S.C.R.

A is against the pecuniary or proprietary interest of the
person making it, or when, if true it would expose him
or would have exposed him to criminal prosecution or
to a suit for damages.
(4) or gives opinion as to public right or custom, or
B matters of general interest - When the statement
gives the opinion of any such person, as to the
existence of any public right or custom or matter of
public or general interest, of the existence of which, if it
existed, he would have been likely to be aware, and
C, when such statement was made before any controversy
as to such right, custom or matter had arisen.
(5) or relates to existence of relationship - When the
statement relates to the existence of any relationship
by blqod, marriage or adoption between persons as
D to whose relationship by blood, marriage or adoption
the person making the statement had special means
of knowledge, and when the statement was made
before the question in dispute was raised.
(6) or is made in will or deed relating to family affairs
E - When the statement relates to the existence of any
relationship by blood, marriage or adoption between
persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such
deceased person belonged, or in any family pedigree,
F or upon any tombstone, family portrait, or other thing
on which such statements are usually made, and when
such statement was made before the question in
dispute was raised.
(7) or in document relating to transaction mentioned
G in section 13, Clause (a). - When the statement is
contained in any deed, will or other document which
relates to any such transaction as is mentioned in
Section 13, Clause (a).
(8) or is made by several persons and expresses
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 187
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
feelings relevant to matter in question - When the A
statement was made by a number of persons, and
expressed feelings or impressions on their part
relevant to the matter in question.
Illustrations
B
(a) The question is, whether A was murdered by B ; or
A dies of injuries received in a transaction in the course
of which she was ravished. The question is, whether
she was ravished by B; or
The question is, whether A was killed by B under such c
circumstances that a suit would lie against B by A's
widow.
Statements made by A as to the cause of his or her
death, referring respectively to the murder, the rape,
and the actionable wrong under consideration, are D
relevant facts.
(b) The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon, regularly
kept in the course of business, stating that, on a given
E
day he attended A's mother and delivered her of a son,
is a relevant fact.
(c) The question is, whether A was in Calcutta on a given
day.
A statement in the diary of a deceased solicitor, F
regularly kept in the course of business, that, on a given
day, the solicitor attended A at a place mentioned, in
Calcutta , for the purpose of conferring with him upon
specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay G
harbour on a given day.
A letter written by a deceased member of a merchant's
firm, by which she was chartered, to their
correspondents in London to whom the cargo was
H
188 SUPREME COURT REPORTS {2013) 5 S.C.R.

A consigned, stating that the ship sailed on a given day
from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain
land.
A letter from A's deceased agent to A, saying that he
B
had received the rent on A's account and held it at A's
orders, is a relevant fact.
(f) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he
c married them under such circumstances that the
celebration would be a· crime, is relevant.
(g) The question is, whether A, a person who cannot be
found, wrote a letter on a certain day. The fact that a
letter written by him is dated on that day, is relevant.
D (h) The question is, what was the cause of the wreck of a
ship.
A protest made by the Captain, whose.attendance
cannot be procured, is a relevant fact.
E (i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that
the road was public, is a relevant fact.
0) The question is, what was the price of grain on a certain
day in a particular market. A statement of the price,
F made by a deceased banya in the ordinary course of
his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father
ofB.
A statement by A that B was his son, is a relevant fact.
G
(0 The question is, what was the date of the birth of A. ·
A letter from A's deceased father to a friend,
announcing the birth of A on a given day, is a relevant
fact.
H
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 189
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
(m) The question is, whether, and when, A and B were A
married.
An entry in a memorandum-book by C, the deceased
father of B, of his daughter's marriage with A on a given
date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature B
exposed in a shop window. The question is as to the
similarity of the caricature and its libellous character.
The remarks of a crowd of spectators on these points
may be proved."
According to the learned counsel for the accused-respondents,
c
Section 32 expressly legitimises hearsay evidence pertaining to
the cause of a person's death, or the circumstances of the
transaction which resulted in a person's death. Whilst the aforesaid
submission is correct, it is not possible for us to accept the same
as extendable, to the present case. · D

37. A perusal of Section 32 reveals, that it is permissible, while
leading evidence relating to the cause of a person's death or
relating to the circumstances which resulted in his death, to produce
in evidence statements, written or verbal, made by a person who
E
has since died, or by the persons who cannot be found, or by those
who have become incapable of giving evidence, or by those whose
attendance cannot be procured without an amount of delay. It is
clear, that secondary evidence is permissible when the issue
relates to the cause of a person's death, or the circumstances of a
transaction which resulted in his death. But such permissibility, F
would extend only to the exigencies expressly enumerated in
Section 32 of the Evidence Act. The situations wherein secondary
evidence is permissible under Section 32 of the Evidence Act
include statements made by persons who have since died, or
statements made by persons who cannot be found, or statements ·G
made by persons who have become incapable of giving evidence,
or statements made by persons who cannot be procured without
an amount of delay or expense. Neither of these exigencies exists
insofar as the present controversy is concerned. The authors of the
confessional statements (Sadiq lsrar Shaikh, Arif Badruddin H
190 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Shaikh and Ansar Ahmad Badshah) in Special Case no. 4 of 2009,
are very much available and their presence can be procured by the
accused-respondents to be presented as defence witnesses on
their behalf. In the aforesaid view of the matter, it is not possible for
us to accept, that the accused-respondents can place reliance on
B Section 32 of the Evidence Act, in order to lead evidence in respect
of the confessional statements (made by Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah), by recording
evidence to the statements of the witnesses at serial nos. 63 to 66.
38. It is also essential to notice herein, that in order to render
C Section 32 of the Evidence Act, admissible for recording the
statements of witnesses at serial nos. 63 to 66, in lieu of the
confessional statements made by Sadiq lsrar Shaikh, Arif
Badruddin Shaikh and Ansar Ahmad Badshah, learned counsel for
the accused-respondents had placed emphatic reliance on Article
o 20 of the Constitution of India. Article 20 aforementioned is
reproduced hereunder:-
"20. Protection in respect of conviction for offences-
(1) No person shall be convicted of any offence except for ·
violation of a law in force at the time of the commission
E of the Act charged as an offence, nor be subjected to
a penalty greater than that which might have been
inflicted under the law in force at the time of the
commission of the offence.
(2) No person shall be prosecuted and punished for the
F same offence more than once.
(3)No person accused of any offence shall be compelled
to be a witness against himself."
Relying on sub-Article (3) of Article 20, it was the contention of the
G learned counsel for the accused-respondents, that since no accused
can be compelled to be a witness against himself, it would not be
open to the accused-respondentsto summon Sadiq lsrar Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah, and thereby
compel them to be witnesses against themselves. In that sense, it
H was submitted, that the authors of the confessional statements must
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 191
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
be deemed to be persons incapable of giving evidence and/or A
persons whose attendance cannot be procured for deposition,
during the trial of Special Case no. 21 of 2006.
39. The plea advanced at the hands of the learned counsel for
the accused-respondents, as has been noticed in the foregoing
paragraph, is clearly not available to the accused-respondents in B
view of the protection afforded to a witness who would find himself
in such a peculiar situation under Section 132 of the Evidence Act.
Section 132 of the Evidence Act is being extracted hereunder:-
"132. Witness not excused from answering on ground
that answer will criminate - A witness shall not be C
excused from answering any question as to any matter
·relevant to the matter in issue in any suit or in any civil
or criminal proceeding, upon the ground.thatthe answer
to such question will criminate, or may tend directly or
indirectly to criminate, such witness, or that it will D
expose, or tend dir~ctly or indirectly to expose, such
witness to a penalty or forfeiture of any kind:
Proviso
Provided that no such answer, which a witness shall E
be compelled to give, shall subject him to any arrest or
prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false
evidence by such answer."
Without stating anything further, we are satisfied to record, that F
Section 132 of the Evidence Act clearly negates the basis of the
submission, adopted by the learned counsel for the accused-
respondents, for being permitted to lead secondary evidence to
substantiate the confessional statements made by Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. G
Accordingly, we hereby reiterate the conclusion drawn by us
hereinabove, namely, that the confessional statements made by the
accused (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) in Special Case no. 4 of2009 cannot be proved
in evidence, through the statements of the witnesses at serial nos. H
63 to 66. Needless to mention, that the authors of the confessional
192 SUPREME COURT REPORTS [2013] 5 S.C.R.

A statements (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar
Ahmad Badshah) may be produced as defence witnesses by the
accused-respondents, for their statements would fall in the realm
of relevance under Section 11 of the Evidence Act. And in case
Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
B Badshah appear as defence witnesses in Special Case no. 21 of
2006, the protection available to a witness under Section 132
extracted above, would also extend to them, if they are compelled
to answer questions posed to them, while appearing as defence
witnesses in Special Case no. 21 of 2006.
C 40. It is also necessary to examine the issue in hand with
reference to the provisions of the MCOCA. The controversy
pertaining to the relevance of the statement of witnesses at serial
nos. 63 to 66, has to be understood with reference to Section 18 of
the MCOCA. We shall now record our determination on the scope
o and effect of Section 18 of the MCOCA. Section 18 aforementioned
is being extracted hereunder:
"Section 18 • Certain confessions made to police officer
to be taken into consideration-- (1) Notwithstanding
anything in the Code or in the Indian Evidence Act, 1872 (I of
E 1~72), but subject to the provisions of this sectiO(:l, a confession
made by a person before a police officer not below the rank
of the Superintendent of Police and recorded by such police
officer either in writing or on any mechanical devices like
cassettes, tapes or.sound tracks from which sounds or images
F can be reproduced, shall be admissible in the trial of such
person or co-accu~ed, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is
charged and tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere in
G the same language in which the person is examined and as
narrated by him.
(3) The police officer shall, before recording any confession
under sub-section (1 ), explain to the person making it that he
is not bound to make a confession and that, if he does so, it
H
STATE OF MAHARASHTRA v. KAMALAHMED MOHAMMED 193
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
may be used as evidence against him and such police officer A
shall not record any such confession unless upon questioning
the person making it, he is satisfied that it is being made
voluntarily. The concerned police officer shall, after recording
such voluntary confession, certify in writing below the
confession about his personal satisfaction of the voluntary B
character of such confession, putting the date and time of the
same.
(4) Every confession recorded under sub-section (1) shall be
sent forthwith to the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate having jurisdiction over the area in which C
such confession has been recorded and such Magistrate shall
forward the recorded confession so received to the Special
court which may take cognizance of the offence.
(5) The person whom a confession had been recorded under
sub-section (1) shall also be produced before the Chief D
Metropolitan Magistrate or the Chief Judicial Magistrate to
whom the confession is required to be sent under sub-section
(4) alongwith the original statement of confession, written or
recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial E
Magistrate shall scrupulously record the statement, if any,
made by the accused so produced and gethis signature and
in case of any complaint of torture, the person shall be directed
to be produced for medical examination before a Medical
Officer not lower in rank than of an Assistant Civil Surgeon." F
Section 18 of the MCOCA through a non-obstante clause, overrides
the mandate contained in Sections 25 and 26 of the Evidence Act,
by rendering a confession as admissible, even if it is made to a
police officer (not below the rank of Deputy Commissioner of
Police). Therefore, even though Sections 25 and 26 of the Evidence G
Act render inadmissible confessional statements made to a police
officer, or while in police custody, Section 18 of the MCOCA
overrides the said provisions and bestows admissibility to such
confessional statements, as would fail within the purview of Section
18 of the MCOCA. It is however relevant to mention, that Section H
194 SUPREME COURT REPORTS [2013) 5 S.C.R.

A 18 of the MCOCA makes such confessional statements
admissible, only for "the trial of such person, or co-accused, abettor
or conspirator''. Since Section 18 of the MCOCA is an exception
to the rule laid down in Sections 25 and 26 of the Evidence Act, the
same will have to be interpreted strictly, and for the limited purpose
B contemplated thereunder. The admissibility of a confeS$ional
statement would clearly be taken as overriding Sections 25 and 26
of the Evidence Act for purposes of admissibility, but must
mandatorily be limited to the accused-confessor himself, and to a
co-accused (abettor or conspirator). It is not the contentiof'! of the
c learned counsel for the accused-respondents that the persons who
had made the confession (Sadiq lsrar Shaikh, Arif Badruddin
Shaikh and Ansar Ahmad Bad shah) before witnesses at serial nos.
64 to 66 are the accused themselves along with the co-accused
(abettor or conspirator) in Special Case no.21 of 2006. It is therefore
apparent, that the ingredients which render a confessional statement
0
admissible under Section 18 of the MCOCA are not satisfied in
the facts of the present case. For that matter Section 18 of the
MCOCA, has to be viewed in the same manner, as we have
recorded our analysis of Section 15 of the TADA herein above. In
E the aforesaid view of the matter, it is imperative for us to conclude,
that Section 18 of the MCOCA cannot constitute the basis of
relevance of the confessional statements made by the accused
(Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah) in Special Case no. 4 of 2009, to the case in hand. It is
therefore not possible for us to accept the admissibility of the
F witnesses at serial nos. 63 to 66 in so far as Special Case no. 21
of 2006 is concerned.
41. One of the considerations which weighed heavily with the
High Court in setting aside the order of the MCOCA Special Court
dated 1.8.2012, whereby the request of the accused-respondents
G to summon witnesses at serial nos. 63 to 66 as defence witnesses
was declined, stands highlighted by the High Court in paragraph
29 (of the impugned order dated 26.11.2012). Relevant part of
paragraph 29 aforementioned is being reproduced hereunder:
"29. - The absurdity of such reasoning does not end here. If
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STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 195
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
that the concerned Dy. Commissioners of Police would A
not be in a position to state 'whether the facts stated in
such confessions were true' is a proper ground to
disallow their evidence, how can their evidence be
given in MCOC Special Case No.4 of 2009? How can
they, in that case would be in a position to state so? B
This problem will come in all the confessions, as the
truth of the facts stated in the confession will be known
to the confessor, and not to the person to whom it is
made. Such person only gives evidence of the fact that
a confession was made, and it is the court that decides c
whether the fact of confession having been made is
true and also whether the facts stated in the confession
are true. Confessions are treated as circumstantial
evidence of the truth of the facts stated therein and it is
the court that decides whether the facts stated in the
0
confession should be believed or notih a given case.
It is a matter of evaluation of evidence to be done by
the Court after it is tendered. There is therefore, no
substance in such contentions, which have, rightly been
given up by the responde'nt-State, before this Court ...."
E
In our deliberations in the p·receding few paragraphs, we have
brought out the scope of applicability of Section 18 of the MCOCA.
It needs to be reiterated that Section 18 of the MCOCA is an
exception to Sections 25 and 26 of the Evidence Act, ·only in a trial
against an accused (or against a co-accused - abettor or F
conspirator) who has made the confession. The said exemption has
not been extended to other trials in which the person who had made
the confession is not an accused. Since the vires of Section 18 of
the MCOCA is not subject matter of challenge before us, it is
imperative for us to interpret the effect of Section 18 of the MCOCA
$It~. G
42. Another submission advanced atthe hands of the learned
counsel for the accused-respondents which deserves notice was
based on Sections 35 and 80 of the Evidence Act. Sections 35 and
80 aforementioned are being extracted hereunder:-
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196 SUPREME COURT REPORTS [2013] 5 S.C.R.

A "35. Relevancy of entry in public record or an
electronic record made in performance of duty •
An entry in any public or other official book, register or
record or an electronic record, stating a fact in issue
or relevant fact, and made by a public servant in the
B discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of
the country in which such book, register, or record or
an electronic record is kept, is itself a relevant fact."
80. Presumption as to documents produced as
C record of evidence -
Whenever any document is produced before any Court,
purporting to be a record or memorandum of the
evidence, or of any part of the evidence, given by a
witness in a judicial proceeding or before any officer
D authorized by law to take such evidence, or to be
statement or confession by any prisoner or accused
person, taken in accordance with law, and purporting
to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the Court shall presume·
E that the document is genuine; that any
statements as to the circumstances under which
it was taken, purporting to be made by the
person signing it, are true, and that such
evidence, statement or confession was duly
F taken."
43. While endeavouring to determine the viability of the
production of the witnesses at serial nos. 63 to 66 as defence
witnesses, it is important to understand why the aforesaid witnesses
are sought to be examined as defence witnesses. The instant
G aspect of the matter has been dealt with by the MCOCA Special
Court in paragraph 5 (of its order dated 1.8.2012) wherein the
submission of the counsel representing the accused-respondents
was projected as under:
"In the confession, there is a reference to the blasts in Mumbai
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STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 197
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
after 2005. He gave example stating that in a case where it is A
alleged that 'A' has committed the blast and he is praying for
documents of accused 'B' in some other trial to prove his
innocence. 'B' has admitted his guilt in the other case and has
also admitted that he has committed the b last in the case of
'A'. 'A' is innocent and he has not committed the blast. In these B
circumstances can 'A' be hanged? He submits that the
confessions are the court documents and the accused want
- to rely on them."
Likewise, the High Court (in the impugned order dated 26.11.2012)
had noticed the averments made at the behest of the appellants C
before it (the accused-respondents herein) in paragraph 30 as
under:
"Again, there exists a difference between the truth of the facts
contained in a confession, and the fact that a confession exists.
The fact that someone else has confessed about having D
committed the crime with which the appellants are charged is
relevant in itself. In fact, it is difficult to understand as to how
the court is supposed to decide whether the confession is
truthful or not before the evidence of such confession is given.
It is intere.s.ting to note that though some arguments 'Nere E
advanced by the learned Advocate General to the effect that
'the fact that someone else has confessed about the same
crime for which the appellants are being charged, is by itself
not relevant at all unless the truth of such confession is sought
to be proved,' that was not the stand of the learned Special F
Public Prosecutorbefore the Trial Court. In fact, the impugned
order itself records that the 'objection of the Special Public
Prosecutor was that if the .confessions of the accused in the
MCOC Special Case Nd.4 of'2009 is brought on record of
the case against the appellants, it would be inconsistent with G
the guilt of the accused (paragraph no.6 of the order). It was
the specific contention of the Special Public Prosecutor before
the Trial Court that the appellants wanted to bring the said
confession on record in the present case, because such
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198 SUPREME COURT REPORTS [2013) 5 S.C.R.

A confessions would be inconsistent with the guilt of the
appellants."
It clearly emerges from the submissions advanced at the behest of
the accused-respondents, that the confessions made by the
accused in Special Case no.4 of 2009 are sought to be adopted
B for establishing the fact, that it was not the accused-respondents
herein who are responsible for the seven bomb blasts in seven
different first class compartments of local trains of Mumbai Suburban
Railways on 11. 7.2006, but it was the aceused (Sadiq lsrar Shaikh,
Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special
C Case no. 4 of 2009 who had already confessed to the same. It is
therefore apparent, that the objective of the accused-respondents
is not to rely on the factum of a confessional statement having been
recorded. The objective is to achieve exculpation of
blameworthiness on the basis of the truth of the confessional
D statements made before witnesses at serial nos. 63 to 66. It needs
to be kept in mind that the witnesses sought to be produced in their
defence by the accused-respondents (the witnesses at serial nos.
64 to 66), cannot vouchsafe the truth or falsity of the confessional
statements made by Sadiq lsrar Shaikh, Arif Badruddin Shaikh and
E Ansar Ahmad Badshah. It is indeed the persons who had made
such confessions who can do so. Since it is the truthfulness of the
confessional statements made before the witnesses at serial nos.
63 to 66 which is the real purpose sought to be achieved, we are of
the view that only those who had made the confessional statements
F (Sadiq lsrar Shaikh, Arif Badruddin Shaikh and Ansar Ahmad
Badshah) can vouchsafe for the same. This can only be done under
the provisions of the Evidence Act. For that the accused-
respondents, can only pin their hopes on the persons who had
made the confessional statements. There is certainly no escape
from the above course in view of the mandate of Section 60 of the
G Evidence Act. The effect of Section 60 aforesaid, has been
highlighted and discussed above. This would also constitute one
of the reasons for accepting the contention advanced before us on
behalf of State of Maharashtra. In the background of the object
sought to be achieved having been clarified by us, it is apparent,
H that Sections 35 and 80 would be of no avail to the accused-
STATE OF MAHARASHTRA v. KAMAL AHMED MOHAMMED 199
VAKILANSARI [JAGDISH SINGH KHEHAR, J.]
respondents in the facts and circumstances of this case, since we A
have already concluded hereinabove, that the witnesses at serial
nos. 63 to 66 cannot be summoned, as their evidence before the
trial Court would not fall within the realm of admissibility with
reference to "facts in issue" or "relevant facts".
44. From different angles and perspectives based on the B
provisions of the Evidence Act and MCOCA examined on the basis
of submissions advanced by the learned counsel representing the
rival parties, it is inevitable for us to conclude, that the accused-
respondents cannot be permitted to summon the witnesses at serial
nos. 63 to 66 as defence witnesses, forthe specific objective sought C
to be achieved by them.
45. For the reasons recorded hereinabove, we are satisfied,
that the impugned order dated 26.11.2012 passed by the High
Court deserves to be set aside. The same is accordingly hereby
set aside. It is held, that it is not open to the accused-respondents D
to produce the witnesses at serial nos. 63 to 66 in order to
substantiate the confessional statements made by Sadiq lsrar
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah (the
accused in Special Case no. 4 of 2009), who are not accused/co-
acqused in Special Case no. 21 of 2006 (out of the proceedings E
whereof, the instant appeal has arisen).
46. Appeal stands allowed.
B.B.B. Appeal allowed.